Intersal, Inc. v. Hamilton ( 2019 )


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  •                IN THE SUPREME COURT OF NORTH CAROLINA
    No. 115PA18
    Filed 1 November 2019
    INTERSAL, INC.
    v.
    SUSI H. HAMILTON, Secretary, North Carolina Department of Natural and
    Cultural Resources, in her official capacity; NORTH CAROLINA DEPARTMENT
    OF NATURAL AND CULTURAL RESOURCES; STATE OF NORTH CAROLINA;
    and FRIENDS OF QUEEN ANNE’S REVENGE, a Nonprofit Corporation
    On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an opinion and
    order entered on 13 October 2017 dismissing plaintiff’s second amended complaint
    and an order entered on 4 May 2018 granting defendants’ motion to dismiss plaintiff’s
    appeal, both by Judge Gregory P. McGuire, Special Superior Court Judge for Complex
    Business Cases, in Superior Court, Wake County, after the case was designated a
    mandatory complex business case by the Chief Justice under N.C.G.S. § 7A-45.4(b).
    Heard in the Supreme Court on 15 May 2019 in session in the New Bern City Hall in
    the City of New Bern pursuant to section 18B.8 of Session Law 2017-57.
    Linck Harris Law Group, PLLC, by David H. Harris Jr., for plaintiff-appellant.
    Joshua H. Stein, Attorney General, by Matthew W. Sawchak, Solicitor General,
    Ryan Y. Park, Deputy Solicitor General, Brian D. Rabinovitz, Special Deputy
    Attorney General, and Kenzie M. Rakes, Assistant Solicitor General, for
    defendant-appellees Susi H. Hamilton, North Carolina Department of Natural
    and Cultural Resources, and State of North Carolina.
    Hedrick Gardner Kincheloe & Garofalo LLP, by Joshua D. Neighbors, for
    defendant-appellee Friends of Queen Anne’s Revenge.
    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    HUDSON, Justice.
    This case is before us pursuant to plaintiff’s petition for writ of certiorari
    seeking review of the trial court’s 13 October 2017 opinion and order dismissing
    plaintiff’s second amended complaint. We allowed plaintiff’s petition for writ of
    certiorari on 5 December 2018 and we now review whether “the trial court err[ed] in
    dismissing any or all of Plaintiff’s claims for relief and Plaintiff’s Second Amended
    Complaint under N.C. R. Civ. P. 12(b)(1), (2), (6), or other reasons stated in the order.”
    Accordingly, we affirm in part, reverse in part, and remand to the trial court because
    we conclude that it: (1) correctly granted the State Defendants’1 motion to dismiss
    plaintiff’s claims for breach of the 1998 Agreement; (2) correctly granted the motion
    filed by Friends of the Queen Anne’s Revenge (FoQAR) to dismiss plaintiff’s tortious
    interference with contract claim; (3) erred in granting the State Defendants’ motion
    to dismiss plaintiff’s claim that the State Defendants breached the 2013 Settlement
    Agreement by violating plaintiff’s media and promotional rights; and (4) erred in
    granting the State Defendants’ motion to dismiss plaintiff’s claim that DNCR
    breached the 2013 Settlement Agreement by failing to renew plaintiff’s El Salvador
    search permit.
    Factual and Procedural Background
    1  This opinion will—as the trial court did below—use the name “the State Defendants”
    to refer collectively to defendants (1) Susi H. Hamilton, Secretary of the North Carolina
    Department of Natural and Cultural Resources; (2) the North Carolina Department of
    Natural and Cultural Resources (DNCR); and (3) the State of North Carolina.
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    The facts of this case begin with, and are now woven into, the tales of two ships
    (1) Queen Anne’s Revenge (QAR) and (2) El Salvador.2 QAR is believed to be the
    flagship of pirate Blackbeard and was reported lost in 1718. El Salvador was a
    privately owned merchant vessel that was reported lost at sea, off the coast near Cape
    Lookout, North Carolina, during a storm in 1750.
    In 1994, centuries after the disappearances of these two ships, plaintiff
    Intersal, Inc., a marine research and recovery corporation, received permits from the
    North Carolina Department of Natural and Cultural Resources (DNCR) to search for
    QAR and El Salvador in Beaufort Inlet in Carteret County. On 21 November 1996,
    plaintiff discovered QAR just over a mile off Bogue Banks.
    After discovering QAR, plaintiff entered into an agreement with DNCR on 1
    September 1998 (1998 Agreement). As part of the agreement, plaintiff agreed to forgo
    its entitlement to any share in “coins and precious metals” recovered from QAR. The
    ultimate disposition of all artifacts from QAR was a matter left to DNCR.
    In return for plaintiff forgoing its rights to the artifacts from QAR, DNCR
    recognized plaintiff as a partner in all aspects of the “QAR Project.” The 1998
    Agreement defined the QAR Project as “all survey, documentation, recovery,
    preservation, conservation, interpretation and exhibition activities related to any
    2 This factual background is a summary of the allegations contained in plaintiff’s
    second amended complaint. When reviewing a trial court’s decision on a motion to dismiss
    pursuant to N.C. R. Civ. P. 12(b)(6), we treat the allegations contained in the complaint as
    true. See CommScope Credit Union v. Butler & Burke, LLP, 
    369 N.C. 48
    , 51, 
    790 S.E.2d 657
    ,
    659 (2016) (quoting Bridges v. Parrish, 
    366 N.C. 539
    , 541, 
    742 S.E.2d 794
    , 796 (2013)).
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    portion of the shipwreck of QAR or its artifacts.” Accordingly, plaintiff also obtained
    the following rights: (1) “the exclusive right to make and market all commercial
    narrative (written, film, CD Rom, and/or video) accounts of project related activities
    undertaken by the Parties”; (2) the reasonable cooperation of “[a]ll Parties . . . in the
    making of a film and/or video documentary . . . with regard to project activities”; (3)
    “reasonable access and usage, subject to actual costs of duplication, of all video and/or
    film footage generated in the making” of “a non commercial educational video and/or
    documentary” that “[a]ll Parties agree[d] to cooperate in [ ] making”; and (4)
    “exclusive rights to make (or have made) molds or otherwise reproduce (or have
    reproduced) any QAR artifacts of its choosing for the purpose of marketing exact or
    miniature replicas” subject to “standard museum practices,” approval by the project’s
    “Advisory Committee,” and the requirement that the replicas “be made on a limited
    edition basis” and authenticated by individual numbering or some other means.
    In addition, the 1998 Agreement provided that:
    Subject to the provisions of Article 3 of Chapter 121 of the
    General Statues of North Carolina and subchapter .04R of
    Title 7 of the North Carolina Administrative Code, [DNCR]
    agrees to recognize [plaintiff’s] . . . efforts and participation
    in the QAR project as sufficient to satisfy any performance
    requirements associated with annual renewal of
    [plaintiff’s] permits for [ ] El Salvador . . . for the life of this
    Agreement, renewal of said permits cannot be denied
    without just cause.
    Plaintiff alleges that in 2013, DNCR breached the 1998 Agreement in a
    number of ways. First, plaintiff alleges that DNCR failed to recognize plaintiff’s
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    renewal of the 1998 Agreement. Plaintiff alleges that it validly executed its option to
    renew the 1998 Agreement via letters sent on 28 October 2012 and 4 December 2012.
    Second, plaintiff alleges that certain DNCR employees, who had the
    responsibility of overseeing the QAR Project, violated the 1998 Agreement’s conflict
    of interest provisions—and its provisions granting plaintiff exclusive commercial
    media rights—by serving on the board of the nonprofit corporation FoQAR.
    Specifically, plaintiff alleges that the DNCR employees, serving in their roles as board
    members of FoQAR, contracted with an independent media company to produce
    videos and a website covering the QAR Project. Allegedly, the execution of this
    contract included a ten thousand dollar payment from FoQAR to the spouse of
    FoQAR’s treasurer, and that payment was not reported on FoQAR’s 2013 Form 990.
    FoQAR’s treasurer was also a DNCR employee who oversaw the QAR Project.
    Plaintiff alleges that these actions also constituted tortious interference with contract
    by FoQAR. FoQAR filed Articles of Dissolution on 14 March 2016. However, this
    action continues under N.C.G.S. § 55A-14-06(b)(5) (2017).
    Third, plaintiff alleges that DNCR breached the 1998 Agreement by
    obstructing and delaying the renewal of plaintiff’s permit, which authorized it to
    search for El Salvador. Plaintiff also alleges that this obstruction of renewal of its
    permit implicates the 1998 Agreement’s conflict of interest provisions because the
    DNCR employees who obstructed and delayed the renewal of its permit were also
    board members of FoQAR.
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    On 26 July 2013, plaintiff filed a petition for a contested case hearing with the
    Office of Administrative Hearings (the OAH) seeking a remedy for State Defendant’s
    alleged violations of the 1998 Agreement and of plaintiff’s intellectual property rights.
    Following that filing, plaintiff’s El Salvador permit was renewed on 9 August 2013.
    Thereafter, the OAH ordered mediation in the matter and, as a result of the
    mediation, plaintiff, DNCR, and plaintiff’s long-time “QAR Video Designee,” Nautilus
    Productions, LLC (Nautilus), entered into a settlement agreement on 15 October 2013
    (2013 Settlement Agreement).
    The parties expressly agreed that the 2013 Settlement Agreement would
    supersede the 1998 Agreement. Further, plaintiff and DNCR agreed to release each
    other from all claims that they could have asserted under the 1998 Agreement.
    Plaintiff also agreed to withdraw its petition for a contested case hearing within five
    business days of the execution of the agreement. Moreover, the agreement stated
    that, in the event of breach, the parties could “avail themselves of all remedies
    provided by law or equity.”
    Under the 2013 Settlement Agreement, the parties agreed that DNCR would
    “establish and maintain access to a website for the issuance of Media and Access
    Passes to QAR-project related artifacts and activities.” The website would include, in
    pertinent part: (1) plaintiff’s terms of use agreement, and (2) links to the websites of
    DNCR, plaintiff, and Nautilus. Further, the parties agreed that, regardless of the
    entity that produced the media,
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    [a]ll non-commercial digital media . . . shall bear a time
    code stamp, and watermark (or bug) of Nautilus and/or
    D[N]CR, as well as a link to D[N]CR, [plaintiff], and
    Nautilus websites, to be clearly and visibly displayed at the
    bottom of any web page on which the digital media is being
    displayed.
    Moreover, DNCR agreed “to display non-commercial digital media only on D[N]CR’s
    website.”
    Further, with regard to plaintiff’s El Salvador permit, the 2013 Settlement
    Agreement provided that:
    In consideration for [plaintiff’s] significant contributions
    toward the discovery of the QAR and continued cooperation
    and participation in the recovery, conservation, and
    promotion of the QAR, D[N]CR agrees to continue to issue
    to [plaintiff] an exploration and recovery permit for the
    shipwreck El Salvador in the search area defined in the
    current permit dated 9 August 2013. D[N]CR agrees to
    continue to issue the permit through the year in which the
    QAR archaeology recovery phase is declared complete so
    long as the requirements contained in the permit are
    fulfilled. . . . D[N]CR agrees to recognize [plaintiff’s] efforts
    and participation in the QAR project as sufficient to satisfy
    any performance requirements associated with annual
    renewal of [plaintiff’s] permit for the El Salvador.
    Plaintiff alleges that DNCR later breached the 2013 Settlement Agreement by:
    (1) displaying over two thousand QAR digital media images and over two hundred
    minutes of QAR digital media video on websites other than DNCR’s website; (2)
    displaying those images without a watermark, time code stamp, or website links; (3)
    continuing to obstruct and delay the renewal of plaintiff’s permit to search for El
    Salvador; (4) failing to implement certain mandates of the 2013 Settlement
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    Agreement, such as changes to the QAR Project media policy; (5) failing to properly
    inform certain groups of opportunities under the collaborative commercial narrative
    opportunity and/or media procedure language of the 2013 Settlement Agreement; (6)
    allowing FoQAR to film QAR recovery operations through an independent media
    company; (7) allowing FoQAR to post the footage that it filmed on the FoQAR
    Facebook page without a time code stamp, watermark, or website link; and (8)
    allowing FoQAR to bring the crew of a local radio show to dive the QAR shipwreck
    and shoot footage aboard the recovery vessel. Plaintiff also contends that FoQAR
    tortiously interfered with plaintiff’s contract rights by filming the QAR recovery
    efforts and placing the footage on its website, while FoQAR was aware of the 2013
    Settlement Agreement.
    On 2 March 2015, plaintiff filed a second petition for a contested case hearing
    with the OAH. DNCR moved to dismiss plaintiff’s petition, arguing that the OAH
    lacked subject matter jurisdiction to hear contractual claims that were not raised in
    plaintiff’s earlier contested case hearing petition. Plaintiff dismissed its second
    petition for a contested case hearing without prejudice on 26 May 2015.
    On 3 November 2015, plaintiff received a notice of termination for its permit
    to search for the El Salvador even though it already requested renewal of the permit.
    However, on 5 November 2015, plaintiff received another notice from the Attorney
    General’s Office stating that DNCR had received plaintiff’s request for renewal of the
    permit, that the notice of termination was rescinded, and that it would take thirty
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    days to review plaintiff’s renewal request. In those thirty days, State Defendants, for
    the first time, solicited an opinion from counsel for the Kingdom of Spain as to
    whether State Defendants could issue a permit to search for El Salvador. On 30
    November 2015, counsel for the Kingdom of Spain issued an opinion that State
    Defendants could not grant a permit to search for El Salvador without the Kingdom
    of Spain’s permission. Plaintiff received notice that its request for review of the El
    Salvador permit was denied. The notice stated that plaintiff’s permit was being
    terminated because (1) plaintiff “failed to demonstrate operational control of
    laboratory activities and failed to meet certain reporting requirements”; and (2) the
    issuance of further permits was “not deemed to be in the best interest of the State”
    because “Spain’s assertion of its ownership interest in El Salvador requires careful
    consideration of the State’s legal authority to issue a permit in this situation.”
    Plaintiff alleges that El Salvador was a private merchant vessel and, therefore, the
    Kingdom of Spain has no legitimate claim to it.
    Plaintiff sought review of the decision to terminate its permit, and on 21
    January 2016, DNCR issued a final agency decision upholding the denial of the El
    Salvador permit. Thereafter, plaintiff filed a petition for a contested case with the
    OAH seeking review of DNCR’s final agency decision. Plaintiff’s contested case was
    dismissed on 27 May 2016. Plaintiff then sought review in Superior Court, Wake
    County.
    On 27 July 2015, plaintiff separately filed a complaint in Superior Court, Wake
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    County, asserting claims against the State Defendants for breach of contract, and
    requesting that the trial court enter a declaratory judgment, a temporary restraining
    order, a preliminary injunction, and a permanent injunction. The case was designated
    a mandatory complex business case on 10 September 2015. However, on 4 May 2016,
    this case was stayed by the trial court pending the resolution of plaintiff’s
    administrative appeal.
    With regard to plaintiff’s administrative appeal, plaintiff filed its petition for
    judicial review of the OAH’s decision to dismiss its contested case on 23 June 2016.
    Pursuant to judicial review, the trial court entered an order upholding the OAH
    decision, granting summary judgment in favor of the State Defendants, and denying
    and dismissing plaintiff’s petition for judicial review because
    the Kingdom of Spain has a sufficient likelihood of success
    in its claim of ownership of the consigned cargo of the El
    Salvador, and that a reasonably cautious and prudent
    steward of the State’s resources, in a good faith exercise of
    discretion, could conclude that the issuance of the [El
    Salvador] permit to the Petitioner was no longer in the best
    interest of the State.
    Following its first order, the trial court granted plaintiff’s motion for leave of
    court to file a second amended complaint on 20 February 2017. Plaintiff’s second
    amended complaint was also deemed to be filed on that date. In the second amended
    complaint, plaintiff asserted the following pertinent claims: (1) breach of contract
    claims against the State Defendants for violating the terms of the 1998 Agreement,
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    for violating plaintiff’s media and promotional rights under the 2013 Settlement
    Agreement, and for refusing to renew plaintiff’s El Salvador permit as required by
    the 2013 Settlement Agreement; and (2) tortious interference with plaintiff’s
    contractual rights under the 1998 Agreement and the 2013 Settlement Agreement
    against FoQAR. Both State Defendants and FoQAR moved to dismiss plaintiff’s
    second amended complaint.
    On 13 October 2017, the trial court, in pertinent part, dismissed the following
    with prejudice: (1) plaintiff’s breach of contract claims against the State Defendants
    under the 1998 Agreement; (2) plaintiff’s claim that FoQAR tortiously interfered with
    plaintiff’s contractual rights under both the 1998 Agreement and the 2013 Settlement
    Agreement; and (3) plaintiff’s breach of contract claim against the State Defendants
    under the 2013 Settlement Agreement stemming from the State Defendants’ refusal
    to renew plaintiff’s El Salvador permit. It also dismissed without prejudice plaintiff’s
    breach of contract claim against the State Defendants under the 2013 Settlement
    Agreement stemming from DNCR’s alleged violations of plaintiff’s media and
    promotional rights.
    On 9 November 2017, plaintiff filed a notice of appeal from the trial court’s
    decision; however, that notice of appeal named the Court of Appeals, not this Court,
    as the judicial body to which plaintiff had a statutory right of appeal. See N.C.G.S. §
    7A-27(a)(2) (2017). Accordingly, on 10 April 2018, the State Defendants filed a motion
    to dismiss the appeal. Before the State Defendants filed their motion to dismiss the
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    appeal, plaintiff filed a petition for writ of certiorari to this Court seeking review of
    the trial court’s 13 October 2017 opinion and order dismissing its second amended
    complaint. The trial court dismissed plaintiff’s appeal on 4 May 2018. We, however,
    allowed the petition for writ of certiorari on 5 December 2018. Pursuant to plaintiff’s
    certiorari petition, we now review whether the trial court erred in dismissing
    plaintiff’s second amended complaint to the extent summarized above.
    Analysis
    We conclude that the trial court properly dismissed plaintiff’s claims against
    the State Defendants for breach of the 1998 Agreement and its claim against FoQAR
    for tortious interference with contract. However, we also conclude that the trial court
    erred in dismissing plaintiff’s claims for (1) breach of the 2013 Settlement Agreement
    stemming from DNCR’s alleged violations of plaintiff’s media and promotional rights;
    and (2) breach of the 2013 Agreement stemming from DNCR’s non-renewal of
    plaintiff’s El Salvador permit. Accordingly, we affirm in part, reverse in part, and
    remand to the trial court.
    A. Standard of Review
    This Court reviews de novo the grant of a motion to dismiss pursuant to Rule
    12(b)(6) of the North Carolina Rules of Civil Procedure. See CommScope Credit Union
    v. Butler & Burke, LLP, 
    369 N.C. 48
    , 51, 
    790 S.E.2d 657
    , 659 (2016) (citations
    omitted). “In considering a motion to dismiss under Rule 12(b)(6), the Court must
    decide ‘whether the allegations of the complaint, if treated as true, are sufficient to
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    state a claim upon which relief can be granted under some legal theory.’ ” 
    Id.
     (quoting
    Bridges v. Parrish, 
    366 N.C. 539
    , 541, 
    742 S.E.2d 794
    , 796 (2013)). Dismissal of a
    claim under Rule 12(b)(6) is proper when one or more of the following is satisfied: “(1)
    when the complaint on its face reveals that no law supports plaintiff's claim; (2) when
    the complaint reveals on its face the absence of fact[s] sufficient to make a [ ] claim;
    (3) when some fact disclosed in the complaint necessarily defeats the plaintiff's
    claim.” Oates v. Jag, Inc., 
    314 N.C. 276
    , 278, 
    333 S.E.2d 222
    , 224 (1985) (citing Forbis
    v. Honeycutt, 
    301 N.C. 699
    , 701, 
    273 S.E.2d 240
    , 241 (1981)) (other citation omitted).
    However, “a complaint should not be dismissed for failure to state a claim unless it
    appears beyond doubt that the plaintiff can prove no set of facts in support of [a] claim
    which would entitle [the plaintiff] to relief.” Sutton v. Duke, 
    277 N.C. 94
    , 102, 
    176 S.E.2d 161
    , 165–66 (1970) (quoting Conley v. Gibson, 
    355 U.S. 41
    , 45–46, 
    78 S. Ct. 99
    ,
    102, 
    2 L. Ed. 2d 80
    , 84 (1957), abrogated by Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    , 561–63, 
    127 S. Ct. 1955
    , 1968–69, 
    167 L. Ed. 2d 929
    , 943–44 (2007)).
    This Court also reviews a dismissal for lack of subject matter jurisdiction
    pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure de novo and
    it may consider matters outside of the pleadings. Harris v. Matthews, 
    361 N.C. 265
    ,
    271, 
    643 S.E.2d 566
    , 570 (2007) (citations omitted).
    B. Breach of Contract: The 1998 Agreement
    The trial court dismissed plaintiff’s breach of contract claims against the State
    Defendants under the 1998 Agreement because it concluded that “the 2013
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    Settlement Agreement was a novation of the 1998 Agreement and that Plaintiff’s
    rights under the 1998 Agreement have been extinguished.” We affirm.
    “A novation is the substitution of a new contract for an old one which is thereby
    extinguished.” Carolina Equip. & Parts Co. v. Anders, 
    265 N.C. 393
    , 400, 
    144 S.E.2d 252
    , 257 (1965) (citing Tomberlin v. Long, 
    250 N.C. 640
    , 
    109 S.E.2d 365
     (1959)). “The
    essential requisites of a novation are a previous valid obligation, the agreement of all
    the parties to the new contract, the extinguishment of the old contract, and the
    validity of the new contract.” Tomberlin, 
    250 N.C. at 644
    , 
    109 S.E.2d at
    367–68
    (citation omitted). Further, in determining whether a later contract is a novation of
    a prior contract,
    [t]he intent of the parties governs. . . . If the parties do not
    say whether a new contract is being made, the courts will
    look to the words of the contracts, and the surrounding
    circumstances, if the words do not make it clear, to
    determine whether the second contract supersedes the
    first. If the second contract deals with the subject matter of
    the first so comprehensively as to be complete within itself
    or if the two contracts are so inconsistent that the two
    cannot stand together a novation occurs.
    Whittaker Gen. Med. Corp. v. Daniel, 
    324 N.C. 523
    , 526, 
    379 S.E.2d 824
    , 827 (1989)
    (citing Wilson v. McClenny, 
    262 N.C. 121
    , 
    136 S.E.2d 569
     (1964); Tomberlin, 
    250 N.C. at 644
    , 
    109 S.E.2d at
    367–68; Turner v. Turner, 
    242 N.C. 533
    , 
    89 S.E.2d 245
     (1955);
    Bank v. Supply Co., 
    226 N.C. 416
    , 
    38 S.E.2d 503
     (1946)).
    Here, neither plaintiff nor the State Defendants have argued before this Court
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    that either the 1998 Agreement or the 2013 Settlement Agreement are invalid.3
    Further, plaintiff and the State Defendants both agreed to the 2013 Settlement.
    Therefore, if the parties intended the 2013 Settlement Agreement to be a novation of
    the 1998 Agreement, it extinguished the 1998 Agreement. See Tomberlin, 
    250 N.C. at 644
    , 
    109 S.E.2d at
    367–68; Whittaker Gen. Med. Corp., 
    324 N.C. at 526
    , 
    379 S.E.2d at 827
    .
    The words of the 2013 Settlement Agreement themselves “make it clear . . . the
    second contract supersedes the first.” Whittaker Gen. Med. Corp., 
    324 N.C. at 526
    ,
    
    379 S.E.2d at 827
    . Specifically, the 2013 Settlement Agreement states that it
    “supersedes the 1998 Agreement, attached as Attachment A, and all prior
    agreements between D[N]CR, [plaintiff], and Nautilus regarding the QAR project.”
    (emphases added). Because the language of the 2013 Settlement Agreement so clearly
    demonstrates the parties’ intent that it would function as a novation of the 1998
    Agreement, our analysis can end with the plain wording of the agreement. See
    Whittaker Gen. Med. Corp., 
    324 N.C. at 526
    , 
    379 S.E.2d at 827
     (stating that a court
    will look to the circumstances surrounding the second agreement to determine
    whether it is a novation “if the words [of the agreement] do not make it clear”
    (emphasis added))).
    3 In its brief, plaintiff points to the State Defendants’ second affirmative defense in
    their answer to plaintiff’s original complaint, in which the State Defendants appear to have
    asserted that certain paragraphs of the 1998 Agreement and the 2013 Settlement Agreement
    are unenforceable because they are against public policy. However, plaintiff does not actually
    argue that either agreement is invalid, and neither do the State Defendants.
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    Because the 2013 Settlement Agreement was a novation of the 1998
    Agreement, plaintiff’s breach of contract claims arising from the 1998 Agreement are
    “extinguished.” See Carolina Equip. & Parts Co., 
    265 N.C. at 400
    , 
    144 S.E.2d at
    257
    (citing Tomberlin, 
    250 N.C. at 644
    , 
    109 S.E.2d at 367
    ).
    Accordingly, we affirm the decision of the trial court to dismiss plaintiff’s
    breach of contract claims under the 1998 Agreement.
    C. Tortious Interference
    The trial court dismissed plaintiff’s tortious interference with contract claim
    against FoQAR under the 1998 Agreement and the 2013 Settlement Agreement
    because
    [m]ere allegations that DNCR employees also served as
    members of F[o]QAR’s board of directors, or that DNCR
    permitted F[o]QAR to film recovery operations and post
    videos to its website or to dive the QAR wreck do not
    amount to allegations of purposeful conduct on the part of
    F[o]QAR that was intended to induce DNCR to breach any
    contracts.
    We affirm.
    A claim for tortious interference with contract has the following elements:
    (1) a valid contract between the plaintiff and a third person
    which confers upon the plaintiff a contractual right against
    a third person; (2) the defendant knows of the contract; (3)
    the defendant intentionally induces the third person not to
    perform the contract; (4) and in doing so acts without
    justification; (5) resulting in actual damage to plaintiff.
    Beverage Sys. of the Carolinas, LLC v. Associated Beverage Repair, LLC, 368 N.C.
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    693, 700, 
    784 S.E.2d 457
    , 462 (2016) (quoting United Labs., Inc. v. Kuykendall, 
    322 N.C. 643
    , 661, 
    370 S.E.2d 375
    , 387 (1988)).
    The first theory by which plaintiff asserts that FoQAR tortiously interfered
    with the 1998 Agreement and the 2013 Settlement Agreement appears to be that the
    FoQAR was a mere “shadow corporation of DNCR through which certain upper level
    employees of DNCR sought to profit from contracts, books, tours, personal promotion,
    etc., connected to the QAR Project.” Under this theory, plaintiff claims that certain
    DNCR employees (dual hat employees) with “specific responsibility for oversight of
    QAR Project and [plaintiff’s] El Salvador search permit,” “wore dual hats” as “officers
    and agents of DNCR” while also serving as “office[r]s, agents, and directors of . . .
    FoQAR.” Therefore, plaintiff asserts that any action that the dual hat employees took
    in their capacities at DNCR (1) was the result of a “conflict of interest” and an
    “unethical relationship[ ]”; and (2) was also imputed to FoQAR. Plaintiff’s complaint
    appears to attempt to support the imputation theory by invoking the doctrine of
    respondeat superior. However, neither plaintiff’s complaint, nor its briefs filed in this
    Court, cite any authority to support its application of that doctrine to these facts.
    We conclude that the trial court correctly determined that “[m]ere allegations
    that DNCR employees also served as members of F[o]QAR’s board of directors” do not
    amount to allegations that FoQAR intentionally induced DNCR to not perform its
    obligations under either the 1998 Agreement or the 2013 Settlement Agreement.
    Specifically, plaintiff has alleged that the dual hat employees (1) had “specific
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    responsibility for oversight of QAR Project and [plaintiff’s] El Salvador search
    permit,” (2) were serving as employees of DNCR and FoQAR under a “conflict of
    interest” and an “unethical relationship[ ],” and (3) were conspiring “with FoQAR to
    violate multiple provisions of the QAR Settlement Agreement.” However, plaintiff
    has not alleged how the dual hat employees intentionally used their positions to
    induce DNCR to breach either the 1998 Agreement or the 2013 Settlement
    Agreement. See Beverage Sys. of the Carolinas, LLC, 368 N.C. at 700, 784 S.E.2d at
    462 (citing United Labs., Inc., 
    322 N.C. at 661
    , 
    370 S.E.2d at 387
    ). We are persuaded
    that plaintiff’s allegations show, at most, that the dual hat employees “induced
    themselves to breach the 1998 Agreement and [2013] Settlement Agreement.”
    In addition to its overarching shadow corporation theory, plaintiff alleged that
    FoQAR tortiously interfered with the 1998 Agreement when, in mid-2013, FoQAR
    agreed to pay third party companies to produce “various materials, including videos
    and a website” about the QAR Project. Plaintiff also alleged that some of the payment
    pursuant to the agreement went to the spouse of a dual hat employee. However, these
    allegations—involving an agreement between FoQAR and third parties, which did
    not include DNCR—are devoid of any conduct by FoQAR that “intentionally
    induce[d]” DNCR to not perform on its contract with plaintiff. Beverage Sys. of the
    Carolinas, LLC, 368 N.C. at 700, 784 S.E.2d at 462 (quoting United Labs., Inc., 
    322 N.C. at 661
    , 
    370 S.E.2d at 387
    ).
    Moreover, plaintiff alleged that FoQAR tortiously interfered with the 2013
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    Agreement by: (1) contracting with an independent media company to film QAR
    recovery operations and posting the footage on the FoQAR Facebook page without a
    time code stamp, watermark, or website link; and (2) bringing the crew of a local radio
    show to dive the QAR shipwreck and shoot footage from aboard the recovery vessel.
    As with the allegations addressed above, plaintiff’s allegations here—involving
    agreements with third parties other than DNCR, and involving FoQAR’s own conduct
    in posting footage of the recovery operation to its own Facebook page—fail to mention
    any conduct by FoQAR that intentionally induced DNCR to not perform on its
    contract with plaintiff.
    Accordingly, we affirm the decision of the trial court to dismiss plaintiff’s
    tortious interference with contract claim.
    D. Breach of Contract: QAR Media Rights Under the 2013 Settlement Agreement
    The trial court dismissed for lack of subject matter jurisdiction plaintiff’s claim
    that DNCR breached the 2013 Settlement Agreement by violating plaintiff’s QAR
    media rights. Specifically, the trial court concluded that plaintiff (1) failed to exhaust
    administrative remedies; and (2) did not allege that administrative exhaustion would
    be futile. The trial court reached this conclusion because plaintiff dismissed its second
    petition for a contested case hearing under the North Carolina Administrative
    Procedure Act (the APA) and then filed a breach of contract claim in superior court
    without a final decision by the OAH. We reverse.
    Our analysis of whether a plaintiff may bring a breach of contract claim against
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    a State agency in superior court begins with our holding in Smith v. State “that
    whenever the State of North Carolina, through its authorized officers and agencies,
    enters into a valid contract, the State implicitly consents to be sued for damages on
    the contract in the event it breaches the contract[,]” and accordingly, the State cannot
    invoke the doctrine of sovereign immunity as a defense. 
    289 N.C. 303
    , 320, 
    222 S.E.2d 412
    , 423–24 (1976).
    We later concluded, however, that the holding in Smith was “superfluous”
    where “statutory provisions . . . permit an aggrieved party, after exhausting certain
    administrative remedies, to institute a civil contract action in Superior Court.”
    Middlesex Const. Corp. v. State ex rel. State Art Museum Bldg. Comm’n, 
    307 N.C. 569
    ,
    573–74, 
    299 S.E.2d 640
    , 643 (1983) (emphasis added). In Middlesex, we ultimately
    held that the superior court lacked subject matter jurisdiction to adjudicate plaintiff’s
    breach of contract claims arising from its construction contract with the State in the
    first instance. Id. at 575, 
    299 S.E.2d at 644
    . We reasoned that the plaintiff was
    ultimately required to pursue its claims under the provisions of N.C.G.S. § 143-135.3,
    which provided the requisite procedure “[w]hen a claim arises prior to the completion
    of any contract for construction or repair work awarded by any State board to any
    contractor under the provisions of this Article.” Id. at 571, 
    299 S.E.2d at 641
     (quoting
    N.C.G.S. § 143-135.3 (Supp. 1981)). In support of this reasoning, we determined that
    the language of N.C.G.S. § 143-135.3
    could not be clearer: although a contractor may ultimately
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    file an action in Superior Court, the exhaustion of
    administrative remedies as provided [by the statute] is a
    condition precedent to such action, and the provisions
    become a part of every contract entered into between the
    State and the contractor.
    Id. at 573, 
    299 S.E.2d at 642
    .
    The State Defendants rely on our decision in Middlesex, along with our decision
    in Abrons Family Practice and Urgent Care, PA v. N.C. Dep’t of Health and Human
    Servs., 
    370 N.C. 443
    , 
    810 S.E.2d 224
     (2018), in arguing that the trial court was correct
    to dismiss plaintiff’s claim because plaintiff failed to exhaust administrative
    remedies. The State Defendants argue that the APA provided plaintiff with an
    administrative remedy here under N.C.G.S. § 150B-23(a). The State Defendants’
    argument is unavailing.
    First, we note that our decision in Middlesex does not support the conclusion
    that plaintiff was required to exhaust any administrative remedy under N.C.G.S. §
    150B-23(a) before filing a common law breach of contract claim in superior court. As
    an initial matter—and unlike the relevant statute in Middlesex—N.C.G.S. § 150B-
    23(a) provides no administrative procedure which specifically applies to plaintiff’s
    contract claim. Compare N.C.G.S. § 150B-23(a) (2017), with N.C.G.S. § 143-135.3
    (Supp. 1981) (specifically creating an administrative procedure for “[w]hen a claim
    arises prior to the completion of any contract for construction or repair work awarded
    by any State board to any contractor under the provisions of this Article”).
    Accordingly—and also unlike the relevant statute in Middlesex—neither N.C.G.S. §
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    150B-23(a) nor our decision in Smith explicitly make any specific administrative
    procedure a “condition precedent” to bringing a contract claim in superior court.
    Compare N.C.G.S. § 150B-23(a) (2017), with N.C.G.S. § 143-135.3 (Supp. 1981)
    (specifically stating that following the administrative procedure set forth in the
    statute “shall be a condition precedent” to filing suit in superior court). Additionally—
    and also unlike the relevant statute in Middlesex—N.C.G.S. § 150B-23(a) does not
    explicitly make a specific administrative procedure part of every contract entered into
    between the State and a private citizen. Compare N.C.G.S. § 150B-23(a) (2017), with
    N.C.G.S. § 143-135.3 (Supp. 1981) (specifically stating that the administrative
    procedure “shall . . . form a part of every contract entered into between any board of
    the State and any contractor”). Accordingly, N.C.G.S. § 150B-23(a) does not disturb
    the superior court’s “original general jurisdiction of all justiciable matters of a civil
    nature.”4 N.C.G.S. § 7A-240 (2017) (emphasis added). We decline to read N.C.G.S. §
    150B-23 as creating a specific requirement for the exhaustion of administrative
    remedies. Accordingly, in the absence of a specific statutory exhaustion requirement,
    4 Under the General Statutes, it is the General Court of Justice—not an “independent,
    quasi-judicial agency” such as the OAH, N.C.G.S. § 7A-750 (2017) (emphasis added)—which
    is presumed to have “general jurisdiction” over “matters of a civil nature.” N.C.G.S. § 7A-240;
    see also Reaves v. Earle-Chesterfield Mill Co., 
    216 N.C. 462
    , 465, 
    5 S.E.2d 305
    , 306 (1939)
    (concluding that an “administrative [body], with quasi-judicial functions,” and with “special
    or limited jurisdiction created by statute[,]” is not a court of general jurisdiction and its
    jurisdiction can be “enlarged or extended only by the power creating the court.” (citations
    omitted)).
    DNCR acknowledged this state of the law in its motion to dismiss plaintiff’s second
    petition for a contested case.
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    we affirm our holding in Smith that, generally, where the State enters into a contract,
    it consents to be sued in the event of a breach of the contract.
    Moreover, the text of the 2013 Settlement Agreement does not make the
    exhaustion of a specific administrative procedure a condition precedent to filing a
    breach of contract claim in superior court, nor does it provide a specific procedure for
    settling disputes under the contract. The only provision in the 2013 Settlement
    Agreement concerning breach provides that, “[i]n the event D[N]CR, [plaintiff], or
    Nautilus breaches this Agreement, D[N]CR, [plaintiff], or Nautilus may avail
    themselves of all remedies provided by law or equity.”
    Accordingly, here—unlike in Middlesex—plaintiff’s ability to bring a common
    law breach of contract claim in superior court was not restricted by any statutory or
    contractual provision. As a result, the State Defendants cannot rely on Middlesex for
    the proposition that plaintiff was barred from bringing its claim in superior court in
    the first instance. See Middlesex, 307 N.C. at 570, 229 S.E.2d at 641.
    The State Defendants’ reliance on Abrons is also misplaced. In Abrons,
    plaintiffs—all of whom were health care providers—filed suit against the North
    Carolina Department of Health and Human Services (DHHS), and Computer
    Sciences Corporation (CSC). Abrons, 370 N.C. at 444–45, 810 S.E.2d at 226. DHHS
    entered into a contract with CSC to develop a new Medicaid Management
    Information System (later named NCTracks). Id. at 445, 810 S.E.2d at 226. After the
    system went live, plaintiffs began submitting claims to DHHS for Medicaid
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    reimbursements. Id. at 445, 810 S.E.2d at 226. However, “[i]n the first few months of
    being in operation, [the system] experienced over 3,200 software errors, resulting in
    delayed, incorrectly paid, or unpaid reimbursements to plaintiffs.” Id. As a result,
    plaintiffs filed claims—including claims for monetary damages—alleging “that CSC
    was negligent in its design and implementation of [the system] and that DHHS
    breached its contracts with each of the plaintiffs by failing to pay Medicaid
    reimbursements.” Id. Further, plaintiffs alleged that “they had a contractual right to
    receive payment for reimbursement claims and that this was ‘a property right that
    could not be taken without just compensation.’ ” Id. Moreover, plaintiffs “sought a
    declaratory judgment that the methodology for payment of Medicaid reimbursement
    claims established by DHHS violated Medicaid reimbursement rules.” Id.
    After receiving adverse determinations on their reimbursement claims,
    plaintiffs failed to request a reconsideration review or file a petition for a contested
    case, as specifically required by DHHS procedures. Abrons, 370 N.C. at 448, 810
    S.E.2d at 228; see also id. at 446–47, 810 S.E.2d at 227–28 (discussing DHHS
    regulations and provisions of the APA which specifically require Medicaid providers
    to request a reconsideration review and file a petition for a contested case hearing
    before obtaining judicial review). As a result, we held that the trial court correctly
    dismissed plaintiffs’ claims because they failed to exhaust their administrative
    remedies and failed to demonstrate that such exhaustion would be futile. Id. at 453,
    810 S.E.2d at 232.
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    Here, plaintiff has filed a claim against the State Defendants for their alleged
    violations of plaintiff’s media rights under the 2013 Settlement Agreement. Unlike
    the relevant claims in Abrons, this claim is exclusively one for common law breach of
    contract and, therefore, it is not a mere “insertion of a prayer for monetary damages”
    into what is otherwise a claim that is primarily administrative. See id. at 452, 810
    S.E.2d at 231.
    Because plaintiffs’ claim here is a common law breach of contract claim, and
    the State Defendants have failed to demonstrate that this case is governed by our
    holdings in either Middlesex or Abrons, or any other provision requiring plaintiff to
    exhaust administrative procedures, we conclude that plaintiff was not required to
    exhaust administrative remedies before bringing its breach of contract claim in
    superior court.
    Our conclusion that the trial court had subject matter jurisdiction over
    plaintiff’s claim is supported by the APA. Specifically, the APA provides that
    “[n]othing in this Chapter shall prevent any party or person aggrieved from invoking
    any judicial remedy available to the party or person aggrieved under the law to test
    the validity of any administrative action not made reviewable under this Article.”
    N.C.G.S. § 150B-43 (2017) (emphases added); see also Pachas v. N.C. Dep’t of Health
    & Human Servs., 
    822 S.E.2d 847
    , 855 (N.C. 2019).
    Here, the relevant judicial remedy available to plaintiff is a common law
    breach of contract claim. As addressed above, we reject the State Defendants’
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    argument that the APA makes such a common law claim reviewable through the
    administrative process under N.C.G.S. § 150B-23(a)—which provides the procedure
    for commencing a contested case.
    As a result, the trial court erred in concluding that it lacked subject matter
    jurisdiction over plaintiff’s claim. Because the trial court had jurisdiction to
    adjudicate plaintiff’s claim, plaintiff need not have demonstrated that exhaustion of
    administrative remedies would be futile. See Pachas, 822 S.E.2d at 857 (“Because we
    conclude that the trial court had jurisdiction over petitioner’s motion and petition, we
    need not determine whether exhaustion of administrative remedies was inadequate
    or futile here.”). Accordingly, we reverse the trial court’s conclusion that it lacked
    subject matter jurisdiction over plaintiff’s claim.
    E. Breach of Contract: El Salvador Permit
    The trial court dismissed plaintiff’s breach of contract claim based on DNCR’s
    failure to renew the El Salvador permit because it concluded that the claim was
    barred by the trial court’s 7 November 2016 order under “the doctrine of res judicata”5
    5 Even though the trial court’s order discussed “the doctrine of collateral estoppel, or
    issue preclusion” at some length, it ultimately concluded only that plaintiff’s breach of
    contract claim as to the El Salvador permit was “barred by the doctrine of res judicata.”
    Accordingly, of the two doctrines, we will address only whether plaintiff’s claim is barred by
    the doctrine of res judicata. These two doctrines, although historically recognized “as species
    of a broader category of ‘estoppel by judgment,’ ” are not interchangeable. Whitacre P’ship v.
    Biosignia, Inc., 
    358 N.C. 1
    , 15, 
    591 S.E.2d 870
    , 880 (2004) (quoting Bockweg v. Anderson, 
    333 N.C. 486
    , 491–92, 
    428 S.E.2d 157
    , 161 (1993)). Specifically, res judicata, or claim preclusion,
    functions to bar a plaintiff’s entire “cause of action,” whereas collateral estoppel, or issue
    preclusion, bars only “the subsequent adjudication of a previously determined issue, even if
    the subsequent action is based on an entirely different claim.” Id. at 15, 
    591 S.E.2d at
    880
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    because “[p]laintiff’s breach of contract claim was raised in the contested case
    proceeding” that ultimately reached the trial court on judicial review, and the order
    constituted “a final adjudication on the merits in the administrative matter.” We
    reverse.
    As an initial matter, “[t]he fact that the original claim arose in a quasi-judicial
    administrative hearing” does not preclude the applicability of res judicata. See Batch
    v. Town of Chapel Hill, 
    326 N.C. 1
    , 14–15, 
    387 S.E.2d 655
    , 664 (1990). “Under the
    doctrine of res judicata or ‘claim preclusion,’ a final judgment on the merits in one
    action precludes a second suit based on the same cause of action between the same
    parties or their privies.” Whitacre P'ship v. Biosignia, Inc., 
    358 N.C. 1
    , 15, 
    591 S.E.2d 870
    , 880 (2004) (quoting State ex rel. Tucker v. Frinzi, 
    344 N.C. 411
    , 413, 
    474 S.E.2d 127
    , 128 (1996); Hales v. North Carolina Ins. Guar. Ass'n, 
    337 N.C. 329
    , 333, 
    445 S.E.2d 590
    , 594 (1994)). Further, “[t]he doctrine prevents the relitigation of ‘all
    matters . . . that were or should have been adjudicated in the prior action.’ ” Id. at 15,
    
    591 S.E.2d at 880
     (quoting Thomas M. McInnis & Assocs. v. Hall, 
    318 N.C. 421
    , 428,
    
    349 S.E.2d 552
    , 556 (1986)). However, neither Whitacre nor McInnis provide guidance
    on what “matters,” are considered to be barred by a prior action. See id. at 15, 
    591 S.E.2d at 880
     (ultimately applying the separate doctrine of judicial estoppel); see also
    (emphases added) (citing Hales v. North Carolina Ins. Guar. Ass’n, 
    337 N.C. 329
    , 333, 
    445 S.E.2d 590
    , 594 (1994)). Therefore, although “[t]he two doctrines are complimentary,” they
    are not the same. 
    Id.
     at 15–16, 
    591 S.E.2d at 880
    .
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    McInnis, 318 N.C. at 428, 
    349 S.E.2d at 556
     (holding that the doctrine of res judicata
    was inapplicable in that action).
    Our decision in Bockweg v. Anderson, 
    333 N.C. 486
    , 
    428 S.E.2d 157
     (1993),
    provides guidance on what matters are barred by res judicata. Specifically, in
    Bockweg, we stated that “[w]hile it is true that a ‘judgment is conclusive as to all
    issues raised by the pleadings,’ . . . the judgment is not conclusive as to issues not
    raised by the pleadings which serve as the basis for the judgment.” Bockweg, 
    333 N.C. at 492
    , 
    428 S.E.2d at
    161–62 (citation omitted). In Tyler v. Capehart, we stated that
    a
    judgment is decisive of the points raised by the pleadings,
    or which might properly be predicated upon them. . . .[but]
    does not embrace any matters which might have been
    brought into the litigation, or any causes of action which
    the plaintiff might have joined, but which in fact are
    neither joined nor embraced by the pleadings.
    
    125 N.C. 64
    , 70, 
    34 S.E. 108
    , 109 (1899).
    Here, there is no dispute that the trial court’s order was (1) “a final judgment”6;
    6  Plaintiff does argue, without citing to authority, that the trial court’s order was
    somehow a “deferral” to DNCR’s decision to deny the El Salvador permit and, therefore, the
    order was not a final judgment. However, this argument is without merit because the order
    specifically granted summary judgment in the State Defendants’ favor, while denying and
    dismissing plaintiff’s petition. Therefore, the trial court’s order constitutes a final judgment.
    See Veazey v. City of Durham, 
    231 N.C. 357
    , 361–62, 
    57 S.E.2d 377
    , 381 (1950) (“A final
    judgment is one which disposes of the cause as to all the parties, leaving nothing to be
    judicially determined between them in the trial court.” (citing Sanders v. May, 
    173 N.C. 47
    ,
    49, 
    91 S.E. 526
    , 527 (1917); Bunker v. Bunker, 
    140 N.C. 18
    , 22–24, 
    52 S.E. 237
    , 238–39 (1905);
    McLaurin v. McLaurin, 
    106 N.C. 331
    , 335, 
    10 S.E. 1056
    , 1057 (1890); Flemming v. Roberts,
    
    84 N.C. 532
    , 538–39 (1881)).
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    and (2) that the final judgment was “between the same parties or their privies.”
    Whitacre, 
    358 N.C. at 15
    , 
    591 S.E.2d at 880
    . The issues are whether the final
    judgment was “on the merits” and whether that judgment concerned the “same cause
    of action”—namely plaintiff’s breach of contract claim arising from DNCR’s denial of
    plaintiff’s permit to search for El Salvador. Bockweg, 
    333 N.C. at
    492–93, 
    428 S.E.2d at
    162 (citing and quoting Tyler, 
    125 N.C. at 70
    , 
    34 S.E. at 109
    ).
    We conclude that the trial court’s order was not a final judgment on the merits
    of plaintiff’s breach of contract claim because that claim is a separate cause of action
    which was not raised by plaintiff’s pleadings before the trial court, and which cannot
    be “properly predicated upon [those pleadings].” Bockweg, 
    333 N.C. at
    492–93, 
    428 S.E.2d at
    162 (citing Tyler, 
    125 N.C. at 70
    , 
    34 S.E. at 109
    ). Specifically, in its petition
    for judicial review, plaintiff only ever asserted that DNCR was “contractually bound,”
    to continue renewing the El Salvador permit in support of plaintiff’s argument that
    the OAH’s final agency decision affirming the denial of the permit was “in violation
    of constitutional provisions, in excess of the statutory authority or jurisdiction of the
    agency or the administrative law judge, made upon unlawful procedure, affected by
    other error of law, unsupported by substantial evidence and is arbitrary, capricious
    and is an abuse of discretion.” In this vein, plaintiff asserted that “[DNCR] had
    previously entered into an agreement with [plaintiff], known as the [2013] Settlement
    Agreement, in which [DNCR] bound itself to continue renewing [the El Salvador
    permit] ‘through the year in which the QAR archaeology recovery phase is declared
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    complete so long as the requirements contained in [the El Salvador permit] are
    fulfilled.’ ”
    Further, nowhere in plaintiff’s petition for judicial review did it make the
    following necessary allegations for a breach of contract claim: “[(1)] the existence of a
    contract between plaintiff and defendant, [(2)] the specific provisions breached, [(3)]
    the facts constituting the breach, and [(4)] the amount of damages resulting to
    plaintiff from such breach.” RGK, Inc. v. U.S. Fid. & Guar. Co., 
    292 N.C. 668
    , 675,
    
    235 S.E.2d 234
    , 238 (1977) (quoting Cantrell v. Woodhill Enterprises, Inc., 
    273 N.C. 490
    , 497, 
    160 S.E.2d 476
    , 481 (1968)). Even assuming—without deciding—that
    plaintiff’s aforementioned assertions were allegations concerning the existence of the
    2013 Settlement Agreement, as well as the specific provision of the contract at issue,
    plaintiff’s petition for judicial review still failed to sufficiently allege that the denial
    of the permit constituted a breach of the 2013 Settlement Agreement, and failed to
    allege an amount of damages. Therefore, the pleading before the trial court did not
    raise plaintiff’s breach of contract claim, and plaintiff could not have “properly
    predicate[d]” a breach of contract claim upon that pleading. Bockweg, 
    333 N.C. at 493
    ,
    
    428 S.E.2d at 162
     (citation omitted). Accordingly, the trial court erred in dismissing
    plaintiff’s breach of contract claim based on DNCR’s failure to renew the El Salvador
    permit through the doctrine of res judicata.
    The State Defendants argue to the contrary, stating that our prior decision in
    Batch is controlling here and requires the Court to conclude that plaintiff’s claim was
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    barred by res judicata. Because Batch is distinguishable from this case, we do not
    agree. In Batch, a property owner submitted an application to subdivide her property
    to the Town of Chapel Hill. Batch, 
    326 N.C. at 4
    , 
    387 S.E.2d at 657
    . In its ultimate
    resolution concerning the property owner’s subdivision application, the planning
    board denied the application on the grounds that the subdivision application was not
    consistent with several aspects of the town’s development ordinance. 
    Id.
     at 7–8, 
    387 S.E.2d at
    659–60. After the planning board denied her application, the property
    owner filed a “combined complaint and petition for writ of certiorari” in Superior
    Court, Orange County. 
    Id. at 8
    , 
    387 S.E.2d at 660
    . The trial court determined that
    the claims were properly joined and issued the writ of certiorari. 
    Id. at 8
    , 
    387 S.E.2d at 660
    . After that, the property owner moved for summary judgment and the trial
    court ordered the town to approve the property owner’s preliminary plat with a minor
    exception. See 
    id. at 10
    , 
    387 S.E.2d at 661
    .
    On appeal, this Court first held that the trial court erred in joining the
    proceedings pursuant to the writ of certiorari and the complaint. Batch, 
    326 N.C. at 11
    , 
    387 S.E.2d at
    661–62. Even though we determined that it was error to join the
    two proceedings, we did not remand the entire case on that basis but, instead,
    addressed the remaining issues. 
    Id. at 11
    , 
    387 S.E.2d at 662
    . In reviewing the issues
    raised pursuant to the property owner’s petition for writ of certiorari, we held, in
    pertinent part, that “the Town Council properly denied [the property owner’s] petition
    for approval of her subdivision,” and, accordingly, we reversed the decision of the
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    Court of Appeals. 
    Id. at 13
    , 
    387 S.E.2d at 663
    . In reviewing the issues raised by the
    property owner’s complaint, we determined that (1) “summary judgment should have
    been entered for the [town]”; and (2) “[the property owner’s] complaint should be
    dismissed.” 
    Id. at 14
    , 
    387 S.E.2d at
    663–64.
    The basis for the Court’s conclusions that summary judgment should have been
    granted in favor of the town, pursuant to the property owner’s complaint, and that
    the property owner’s complaint should be dismissed, was that “[i]t having been
    determined in this opinion that the Town Council of Chapel Hill properly denied
    approval of [the property owner’s] subdivision plan,” Batch, 
    326 N.C. at 14
    , 
    387 S.E.2d at 663
     (emphasis added), under the issues raised by the petition for writ of certiorari,
    “[t]he foundation of [the property owner’s] alleged causes of action [in her complaint]
    [was] determined against her,” 
    id. at 14
    , 
    387 S.E.2d at
    663–64.
    In describing how the Court’s holdings on the issues raised by the petition for
    writ of certiorari resolved the issues raised by the complaint, we discussed the
    doctrine of res judicata. Batch, 
    326 N.C. at 14
    , 
    387 S.E.2d at
    663–64 (concluding that
    it was unnecessary to review “any of [the property owner’s] constitutional claims or
    other issues arising upon her complaint” because they were “based solely upon the
    alleged improper refusal by the Town Council to approve her subdivision plans”).
    Specifically, we determined that our holding under the issues raised by the property
    owner’s petition for writ of certiorari—that “the Town Council properly denied [the
    property owner’s] petition for approval of her subdivision”—barred, within the same
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    INTERSAL, INC. V. HAMILTON
    Opinion of the Court
    opinion, any conclusion that she was entitled to summary judgment on the
    constitutional statutory claims raised by her complaint. See 
    id.
     at 13–14, 
    387 S.E.2d at
    663–64. As such, our application of res judicata in Batch resulted from a complex,
    fact-specific, procedural posture that is not applicable to the facts here.
    Accordingly, we reverse the trial court’s conclusion that plaintiff’s breach of
    contract claim based upon the State Defendants’ refusal to renew the El Salvador
    permit was barred by res judicata.
    Conclusion
    For the above reasons, we conclude that the trial court (1) properly dismissed
    plaintiff’s breach of contract claims against the State Defendants which arose from
    the 1998 Agreement; (2) properly dismissed plaintiff’s tortious interference with
    contract claim against FoQAR; (3) erred in dismissing plaintiff’s breach of contract
    claim against the State Defendants concerning its QAR media rights under the 2013
    Settlement Agreement for lack of subject matter jurisdiction; and (4) erred in
    dismissing plaintiff’s breach of contract claim against the State Defendants arising
    from DNCR’s failure to renew plaintiff’s El Salvador permit. Accordingly, we affirm
    in part, reverse in part, and remand to the trial court for further proceedings not
    inconsistent with this opinion.
    AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
    -33-
    Justice MORGAN concurring in part and dissenting in part.
    While I fully concur with my learned colleagues of the majority with respect to
    plaintiff’s claims for breach of the 1998 Agreement, breach of the contractual
    provisions relating to media rights contained in the 2013 Settlement Agreement, and
    tortious interference with contract, I respectfully dissent from their determination
    that the Business Court erred in concluding that plaintiff’s breach of contract claim
    arising from DNCR’s refusal to renew plaintiff’s permit to search for the shipwreck
    remains of the El Salvador was barred by the doctrine of res judicata. In my view,
    our longstanding precedent regarding claim preclusion in conjunction with the record
    on appeal in this matter indicates that this principle applies to plaintiff’s El Salvador
    claim. Accordingly, I would affirm the Business Court on this issue.
    As noted in the majority opinion, the 2013 Agreement provided that DNCR
    would
    continue to issue to Intersal an exploration and recovery
    permit for the shipwreck El Salvador . . . . through the year
    in which the QAR [Queen Anne’s Revenge] archaeology
    recovery phase is declared complete so long as the
    requirements contained in the permit are fulfilled. Subject
    to the provisions of Article 3 of Chapter 121 of the North
    Carolina General Statutes . . . and the North Carolina
    Administrative Code, [DNCR] agrees to recognize
    lntersal’s efforts and participation in the QAR [P]roject as
    sufficient to satisfy any performance requirements
    associated with annual renewal of Intersal’s permit for the
    El Salvador.
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    In sum, to the extent that it would be consistent with our General Statutes and the
    North Carolina Administrative Code, plaintiff’s work on the QAR project would be
    deemed to “satisfy any performance requirements” for renewal of the El Salvador
    permit. However, when plaintiff applied for a renewal of the permit in 2015, the
    application was denied. DNCR gave two reasons for the denial: 1) plaintiff’s failure
    “to fulfill material requirements set forth in” the El Salvador permit and 2) that
    renewal was “not deemed to be in the best interest of the State” due to its receipt of
    a letter dated 30 November 2015 from the Kingdom of Spain which “expressed [the
    Kingdom of Spain’s] intent on maintaining control of the shipwreck and cargo of the
    El Salvador and asserted its position to defend its title,” along with stressing Spain’s
    claim that the State of North Carolina lacked the authority to issue a permit to
    recover the El Salvador. Plaintiff believed that this refusal to renew the permit
    violated the terms of the 2013 Settlement Agreement as quoted above.
    As a result of, inter alia, DNCR’s refusal to renew the permit to search for the
    El Salvador, plaintiff filed a petition for a contested case hearing in the Office of
    Administrative Hearings (OAH), seeking to compel DNCR to renew the permit.1 The
    majority recognizes this development in its opinion in stating that plaintiff had
    1   The contested case filing in 15DCR09742 is not part of the record on appeal, but
    plaintiff’s assertion in the OAH that DNCR was “contractually bound” to issue the permit
    renewal is referenced in decisions issued by the Administrative Law Judge (ALJ), the
    superior court which undertook the judicial review of the final agency decision, and the
    Business Court.
    -2-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    “asserted that DNCR was ‘contractually bound’ to continue renewing the El Salvador
    permit” under terms of the 2013 Settlement Agreement and had failed to do so.
    DNCR moved to dismiss the contested case. In a “Final Decision Order of
    Dismissal” dated 27 May 2016, the ALJ assigned to the contested case by the OAH
    did not address DNCR’s subject matter jurisdiction argument. Instead, the ALJ
    resolved the contested case upon the finding, inter alia, that plaintiff “failed to allege
    that it had permission from the Kingdom of Spain to engage in the exploration and
    recovery of the historic shipwreck site of the El Salvador,” citing the November 2015
    letter from the Kingdom of Spain and, among other authorities, Sea Hunt v.
    Unidentified Shipwrecked Vessel, 
    221 F.3d 634
    , 640–41 (4th Cir. 2000) (stating “that
    a shipwreck is abandoned only where the owner has relinquished ownership rights. .
    . . [and w]hen an owner comes before the court to assert his rights, relinquishment
    would be hard, if not impossible, to show”) (citing 
    43 U.S.C. § 2101
    (b)). As a result,
    the ALJ granted DNCR’s motion to dismiss the contested case for failure to state a
    claim upon which relief can be granted. See N.C.G.S. § 1A-1, Rule 12(b)(6) (2017).
    Pursuant to N.C.G.S. § 150B-45, plaintiff sought judicial review of the OAH
    final decision, asserting that “continued renewal of [the El Salvador permit] is
    required by the terms of the QAR Settlement Agreement (2013)” and that DNCR
    “refused to renew [the El Salvador permit] on November 1, 2015, giving rise to this
    contested case.” In its petition for judicial review, plaintiff further alleged:
    -3-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    The ALJ ignored several additional Petitioner’s arguments
    raised in briefs, exhibits and oral arguments, including,
    without limitation, that . . . [DNCR] is contractually bound
    by the [2013] Settlement Agreement to continue renewing
    [the El Salvador permit] “through the year in which the
    QAR archaeology recovery phase is declared complete so
    long as the requirements contained in [the El Salvador
    permit] are fulfilled.”
    The matter was heard in the Superior Court, Wake County. In an order
    entered 7 November 2016, the superior court noted that the ALJ had determined a
    broader issue than that presented in plaintiff’s petition for a contested case hearing,
    in that the ALJ purported to resolve the ownership of the El Salvador, while the
    actual issue raised by plaintiff’s OAH contested case petition was whether or not
    DNCR’s asserted reason for its denial of the permit renewal—that it would not be in
    the best interest of the State of North Carolina to issue such a permit given the
    assertion of ownership by the Kingdom of Spain—was arbitrary or capricious, as
    plaintiff had couched the administrative controversy in those terms in its OAH
    petition. However, the superior court determined that remand to the OAH was not
    necessary despite this error, because the North Carolina General Statutes provide
    that “[i]n reviewing a final decision allowing judgment on the pleadings or summary
    judgment, the court may enter any order allowed by G.S. 1A-1, Rule 12(c) or Rule 56.”
    N.C.G.S. § 150B-51(d) (2017). In its order, the superior court then 1) determined that
    the record in the matter was fully developed and all issues were thoroughly briefed,
    such that it could resolve defendant’s motion for summary judgment which was filed
    -4-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    in the alternative to its motion to dismiss on the pleadings and 2) held that the denial
    of the El Salvador permit renewal was not arbitrary and capricious, but instead was
    in the best interest of the State in light of the ownership assertion of the Kingdom of
    Spain.     With this analysis, the superior court affirmed OAH’s dismissal of the
    contested case. Plaintiff did not appeal from this determination.
    However, in the subsequent civil suit which was brought before the Business
    Court and which this Court has now been engaged to address, plaintiff pursued a
    breach of contract claim, contending that defendants breached the 2013 Settlement
    Agreement when defendants denied the plaintiff’s request for the renewal of the El
    Salvador permit in 2015. The Business Court viewed this claim as barred by the
    operation of the doctrine of res judicata, holding that the superior court’s “[o]rder was
    a final adjudication on the merits in the administrative matter” and that “[p]laintiff’s
    breach of contract claim was raised in the contested case proceeding.”
    As the majority decision correctly notes,
    Under the doctrine of res judicata or “claim
    preclusion,” a final judgment on the merits in one action
    precludes a second suit based on the same cause of action
    between the same parties or their privies. State ex rel.
    Tucker v. Frinzi, 
    344 N.C. 411
    , 413, 
    474 S.E.2d 127
    , 128
    (1996); Hales v. North Carolina Ins. Guar. Ass’n, 
    337 N.C. 329
    , 333, 
    445 S.E.2d 590
    , 594 (1994). The doctrine
    prevents the relitigation of “all matters . . . that were or
    should have been adjudicated in the prior action.” [Thomas
    M.] McInnis [& Assocs. v. Hall], 318 N.C. [421,] 428, 349
    S.E.2d [552,] 556 [(1986)].
    -5-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    Whitacre P’ship v. BioSignia, Inc., 
    358 N.C. 1
    , 15, 
    591 S.E.2d 870
    , 880 (2004)
    (emphasis added; first alteration in original); see also Bockweg v. Anderson, 
    333 N.C. 486
    , 492, 
    428 S.E.2d 157
    , 161 (1993) (holding that a judgment is conclusive on all
    issues raised by the pleadings). In Bockweg, we further explored the doctrine’s
    application in observing that “subsequent actions which attempt to proceed by
    asserting a new legal theory or by seeking a different remedy are prohibited under
    the principles of res judicata.” 
    333 N.C. at 494
    , 
    428 S.E.2d at 163
     (addressing a case
    in which the “[p]laintiffs did not merely change their legal theory or seek a different
    remedy. . . . [but r]ather, [were] seeking a remedy for a separate and distinct negligent
    act leading to a separate and distinct injury”).
    The disputed question in the present case is whether the pertinent claim—
    breach of the El Salvador permit renewal provision of the 2013 Settlement
    Agreement—was “or should have been adjudicated in the” OAH proceeding that
    concluded with the superior court order dismissing plaintiff’s petition; if so, then it
    cannot be revisited in this case. In the view of the majority, the well-established
    principle of res judicata or claim preclusion does not apply here to bar plaintiff from
    re-litigating the question of whether DNCR breached the 2013 Settlement Agreement
    by failing to renew the El Salvador permit, based upon the majority’s deductive
    reasoning that the breach of contract claim “was never considered” because the
    superior court’s order did not expressly address the issue, but instead focused upon
    the alternative basis for plaintiff’s challenge of the permit denial by defendants
    -6-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    regarding the superior court’s determination that the renewal of the permit was not
    in the best interest of the State. Further, although the majority acknowledges that
    in the OAH proceeding plaintiff “asserted that DNCR was ‘contractually bound’ to
    continue renewing the El Salvador permit,” my colleagues with the majority view
    take the position that plaintiff did not make allegations to support a breach of
    contract claim in its petition for judicial review and therefore conclude that “the
    pleading before [the superior court] did not raise plaintiff’s breach of contract claim.”
    The majority also focuses on the concept that plaintiff did not plead an amount of
    damages—an element of a civil breach of contract claim—and therefore that the OAH
    could not have awarded monetary damages to plaintiff in the contested case
    proceeding, in an effort to fortify the rationale for this case outcome. However, the
    majority misapprehends both our precedent and the procedural posture of the case
    on this point.
    As an initial matter, contrary to the majority’s reasoning, plaintiff’s petition
    for judicial review was not a “pleading” as that term is construed in the appellate case
    law which applies the doctrine of res judicata when discussing what issues were
    raised and what “matters . . . were or should have been adjudicated in the prior
    action.” Thomas M. McInnis & Assocs., 318 N.C. at 428, 
    349 S.E.2d at 556
    . Here, the
    petition for judicial review which afforded the superior court its jurisdiction is more
    properly viewed as an appeal document initiating appellate review, instead of a
    pleading initiating a legal controversy in the first instance. In this regard, the
    -7-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    contested case petition filed in the OAH was the “pleading” for purposes of proper
    evaluation of the application of res judicata.
    More importantly, in the OAH contested case proceeding, plaintiff asserted
    that the 2013 Settlement Agreement “contractually” bound DNCR to renew the El
    Salvador search permit and that DNCR did not renew said permit. See Bockweg, 
    333 N.C. at 492
    , 
    428 S.E.2d at 161
     (holding that, generally, a judgment is conclusive on
    all issues that are raised or could have been raised by the pleadings). However, the
    fact that plaintiff sought one remedy—renewal of the permit—in the OAH proceeding
    and a different remedy—money damages—in the civil suit does not remove plaintiff’s
    essential claim—that the contract as evidenced by the 2013 Settlement Agreement
    was breached—from the bar of res judicata.              See 
    id. at 494
    , 
    428 S.E.2d at 163
    (“[S]ubsequent actions which attempt to proceed by asserting a new legal theory or
    by seeking a different remedy are prohibited under the principles of res judicata”);
    see also Cannon v. Durham Cty. Bd. of Elections, 
    959 F. Supp. 289
    , 292 (E.D.N.C.)
    (“[R]es judicata operates to bar all related claims and thus plaintiffs are not entitled
    to a separate suit merely by shifting legal theories”), aff’d, 
    129 F.3d 116
     (4th Cir.
    1997).
    In sum, plaintiff had the opportunity to fully argue its contract-based claim
    regarding DNCR’s refusal to renew the permit to search for the El Salvador in the
    OAH proceeding, and the Business Court correctly held that the doctrine of res
    judicata dictates that plaintiff could not have a second bite at that particular apple
    -8-
    INTERSAL, INC. V. HAMILTON
    Morgan, J., concurring in part and dissenting in part
    in its civil court action. Accordingly, I dissent from the majority on this issue and
    would affirm the Business Court regarding it.
    Justice ERVIN joins in this separate opinion.
    -9-