Mapco v. North Carolina Dept. of Transp.

625 S.E.2d 787, 175 N.C. App. 570, 2006 N.C. App. LEXIS 199
CourtCourt of Appeals of North Carolina
DecidedJanuary 17, 2006
DocketNo. COA05-266.
StatusPublished

This text of 625 S.E.2d 787 (Mapco v. North Carolina Dept. of Transp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mapco v. North Carolina Dept. of Transp., 625 S.E.2d 787, 175 N.C. App. 570, 2006 N.C. App. LEXIS 199 (N.C. Ct. App. 2006).

Opinion

ELMORE, Judge.

This case arises from the North Carolina Department of Transportation's (DOT) decision to reduce the amount of necessary construction under a contract it had with MAPCO, Inc. (MAPCO). On 1 December 2000 the DOT awarded a construction contract to MAPCO for the milling, resurfacing, and placement of markings on two sections of Highway 421 in Guilford County. The project was centered in Division 7 of the DOT and under that division's authority. At a pre-construction meeting between the parties, MAPCO was informed that the DOT was going to reduce the scope of the contract due to the fact that a small portion of MAPCO's project was going to overlap with one of the DOT's larger projects-a project managed at the state level. In order to prevent the overlap, MAPCO's 11.45 mile project was reduced by 6,900 linear feet, or 1.3 miles. MAPCO, however, had placed its bid according to the specifications in the bid proposal, in particular relying on the amount of reclaimed asphalt pavement (RAP) the project was going to generate. Because of the cost savings the proposed RAP would generate on the project and profit made through the sale of the excess, MAPCO lowered its bid or otherwise credited the DOT. The DOT's alterations in the project were such that MAPCO would now not realize the gain it bargained for from the $2,956,775.73 contract.

MAPCO pursued its administrative and statutory remedies against the DOT without relief. Thereafter it filed suit against the DOT on 22 May 2003 alleging breach of contract. MAPCO claimed, in part, that:

14. At the time the project was bid, Mapco relied to its detriment on the detailed plans and specifications for the work. Further, at the time the Department awarded the project to Mapco, the Department *788was fully aware that a portion of work was going to be deleted from the project but did not inform Mapco of this until after Mapco had allowed the Department more than $100,000.00 credit for the material to be recycled from the milling work as part of its bid for the work. Mapco's bid ultimately became part of the contract between Mapco and the Department.

...

17. The Department breached its obligations to Mapco by failing to adjust the contract amount to return the value of the credit Mapco allowed the Department in its bid for the value of the milling materials.

The DOT denied MAPCO's allegations and also filed for summary judgment. MAPCO, agreeing that there was no genuine issue of material fact, also filed for summary judgment. The trial court ordered summary judgment in favor of the DOT. MAPCO appeals.

Our review of an order for summary judgment is well understood, see Lee v. R. & K. Marine, Inc., 165 N.C.App. 525, 526-27, 598 S.E.2d 683, 684 (2004), and while both parties agree there is no genuine issue of material fact, each contends they were entitled to summary judgment as a matter of law. Even while viewing the facts in the light most favorable to MAPCO, however, we agree with the trial court that the DOT was entitled to summary judgment in its favor.

Included in the contract between the parties is the 1995 edition of the North Carolina Standard Specifications for Roads and Structures (SSRS). Application of these specifications along with other provisions within the parties' contract determine who shall recover. See Teer Co. v. Highway Commission, 265 N.C. 1, 13, 143 S.E.2d 247, 256 (1965).

It is noted that the statutory procedure is available when the contractor has completed his contract with the Highway Commission and fails to receive `such settlement as he claims to be entitled to under his contract.'. . . The procedure is to resolve any controversy as to what (additional) amount, if any, the contractor is entitled to recover under its terms.

Id. (emphasis in original); see also Thompson-Arthur Paving Co. v. N.C. Dept. of Transportation, 97 N.C.App. 92, 94, 387 S.E.2d 72, 73 (1990) (statutory recovery is limited to terms of contract and this is the exclusive remedy); Teer Co. v. Highway Comm., 4 N.C.App. 126, 142, 166 S.E.2d 705, 716 (1969) ("In the absence of an executed supplemental agreement, the parties are bound by the terms of the Contract, and recovery, if any will be controlled by its provisions."). Further, "[w]here the provisions of a contract are plainly set out, the court is not free to disregard them and a party may not contend for a different interpretation on the ground that it does not truly express the intent of the parties." Dixon, Odom & Co. v. Sledge, 59 N.C.App. 280, 284, 296 S.E.2d 512, 514-15 (1982); Teer, 4 N.C.App. at 143, 166 S.E.2d at 716 (quoting 2 Strong's North Carolina Index 2d, Contracts § 12).

The parties' contract states that the amount of milling and resurfacing are subject to change as the project progresses; in other words, the figures provided by the DOT and used by MAPCO in bidding on the project are estimates only.

The quantities shown in the itemized proposal for the project are considered to be approximate only and are given as the basis for comparison of bids. The Department of Transportation may increase or decrease the quantity of any item or portion of the work as may be deemed necessary or expedient.

An increase or decrease in the quantity of any item will not be regarded as sufficient ground for an increase or decrease in the unit prices, nor in the time allowed for the completion of the work, except as provided for the contract.

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Related

Nello L. Teer Co. v. North Carolina State Highway Commission
166 S.E.2d 705 (Court of Appeals of North Carolina, 1969)
Nello L. Teer Co. v. North Carolina State Highway Commission
143 S.E.2d 247 (Supreme Court of North Carolina, 1965)
Gaston County Dyeing MacHine Co. v. Northfield Insurance
524 S.E.2d 558 (Supreme Court of North Carolina, 2000)
Reaves v. Hayes
620 S.E.2d 726 (Court of Appeals of North Carolina, 2005)
Lee v. R & K MARINE, INC.
598 S.E.2d 683 (Court of Appeals of North Carolina, 2004)
Thompson-Arthur Paving Co. v. North Carolina Department of Transportation
387 S.E.2d 72 (Court of Appeals of North Carolina, 1990)
Dixon, Odom & Co. v. Sledge
296 S.E.2d 512 (Court of Appeals of North Carolina, 1982)

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Bluebook (online)
625 S.E.2d 787, 175 N.C. App. 570, 2006 N.C. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mapco-v-north-carolina-dept-of-transp-ncctapp-2006.