Dickerson, Inc. v. Board of Transportation

215 S.E.2d 870 (1975) 26 N.C. App. 319

DICKERSON, INCORPORATED
v.
BOARD OF TRANSPORTATION (Formerly State Highway Commission).

No. 7510SC80.

Court of Appeals of North Carolina.

June 18, 1975.

Koy E. Dawkins, Monroe, for plaintiff appellant.

Atty. Gen. Rufus L. Edmisten by Associate Attys. C. Diederich Heidgerd and Robert W. Kaylor, Raleigh, for the State.

MARTIN, Judge.

Much argument has been directed toward the trial court's denial of plaintiff's motion for summary judgment. This Court has held that ordinarily the denial of a motion for summary judgment does not affect a substantial right so that an appeal may be taken. Stonestreet v. Motors, Inc., 18 N.C.App. 527, 197 S.E.2d 579 (1973); Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970). We will not consider the trial court's failure to grant summary judgment in plaintiff's favor.

The sole question for determination is whether the trial court erred in granting summary judgment for defendant. Summary judgment, when appropriate, may be rendered against the moving party. G.S. § 1A-1, Rule 56(c). Rule 56 provides for the disposition of cases where there is no genuine issue of fact, and its purpose is to eliminate formal trials where only questions of law are involved. Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1972). In passing upon a motion for summary judgment, all affidavits, depositions, answers to interrogatories and other material filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in his favor which may be reasonably drawn from such material. Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974). When so considered, did the evidentiary material show that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law? We think not.

"Obviously, as an elementary general proposition, a contractor is not liable under a clause for liquidated damages based on a time limit if his failure to complete the contract within the specified time was wholly due to the act or omission of the other party in delaying the work, whether by omitting to provide the faculties or conditions contemplated in the contract to be provided by him, or by those for whom he is responsible, or by interfering with the work after the contractor has begun, or otherwise." Reynolds Co. v. Highway Commission, 271 N.C. 40, 155 S.E.2d 473 (1967).

In a "construction inspection report" made by A. L. Barnett, an area construction engineer employed by defendant, it is admitted that plaintiff was behind in its work because the site was not available to it until July. In addition, Mr. Barnett states in the report that he finally got to the bridge site on 16 September 1971 after "at least one-half dozen previous attempts" and that he was unable to reach the site because the access road was impassable due to either rock removal or rain. In response to plaintiff's request for admission of facts, defendant admits the genuineness of said report and also admits that it was kept in the regular and due course of its business.

While plaintiff failed in its motion for summary judgment, it did not follow necessarily that defendant was entitled to summary judgment.

Reversed.

BRITT and HEDRICK, JJ., concur.