Warren Bros. Co. v. NC DEPT. OF TRANSP.

307 S.E.2d 836 (1983)

WARREN BROTHERS COMPANY, A DIVISION OF ASHLAND OIL, INC. v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.

No. 8221SC1159.

Court of Appeals of North Carolina.

October 18, 1983.

*837 Miller, Johnston, Taylor & Allison by Robert J. Greene, Jr., Charlotte, for plaintiff, appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Blackwell M. Brogden, Jr., Raleigh, for defendant, appellee, cross-appellant.

HEDRICK, Judge.

PLAINTIFF'S APPEAL

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. RULES CIV.PROC. 56(c). Where the pleadings or proof of either party disclose that no claim or defense exists, summary judgment is proper. McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972). In such cases the claim or defense of a party is said to be insurmountably barred. See e.g., Jones v. City of Greensboro, 51 N.C.App. 571, 277 S.E.2d 562 (1981). Our examination of the record in the instant case discloses such a bar to plaintiff's claim and dictates that the trial court's grant of summary judgment for defendant be affirmed.

It is undisputed that plaintiff brings this action on behalf of its subcontractor, Lancaster, and that any recovery by plaintiff *838 from defendant will inure to the benefit of Lancaster. Also undisputed is that the contract entered into by plaintiff and defendant contains the following provision:

The Contractor shall not sublet, sell, transfer, assign, or otherwise dispose of the contract or any portion thereof, or of his right, title or interest therein, without written consent of the Engineer.... The approval of any subcontract will not release the Contractor of his liability under the contract and bonds, nor will the Sub-contractor have any claim against the Commission (now NCDOT) by reason of the approval of the subcontract.

Under this provision, Lancaster has no claim against the defendant; plaintiff thus has no claim on behalf of Lancaster. Because the record discloses an insurmountable bar to any claim by plaintiff on behalf of Lancaster, summary judgment for defendant was proper.

Plaintiff cites Blount Bros. Constr. Co. v. United States, 348 F.2d 471, 172 Ct.Cl. 1 (1965) and Seger v. United States, 469 F.2d 292, 199 Ct.Cl. 766 (1972) in support of its argument that summary judgment was inappropriate. We find these cases inaposite. The contract in the instant case provides that plaintiff's subcontractor may not assert a claim against the defendant. The subcontractor may not do indirectly through plaintiff what it could not do directly by suit against the defendant.

DEFENDANT'S APPEAL

The defendant's appeal is moot upon the affirmation of summary judgment in its favor.

Affirmed.

WEBB and HILL, JJ., concur.