An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-744

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

PEDEN GENERAL CONTRACTORS, INC.,
        Plaintiff,

v .                         
                            
CAROL BENNETT, d/b/a
BRIGHTON STABLES,
        Defendant,

    and

PEDEN GENERAL CONTRACTORS, INC.,
        Third-Party Plaintiff,

    v.                            Wake County         & nbsp;                   
                                No. 98-CVS-14297
CECO BUILDING SYSTEMS, A Division
of Robertson-Ceco Corporation;
and J. DEVEREUX JOSLIN, P.E.,
        Third-Party Defendants,

    and

CAROL BENNETT, d/b/a
BRIGHTON STABLES,
        Cross-Claimant,

    v.

CECO BUILDING SYSTEMS, A Division
of Robertson-Ceco Corporation,
        Cross-Defendant.

    Appeal by defendant from order entered 5 August 2002 by Judge Howard Manning and orders entered 19 December 2001, 30 September 2003, 15 October 2003, 9 December 2003, 10 December 2003, 20 January 2004, and 22 January 2004 by Judge Donald W. Stephens in Superior Court, Wake County. Heard in the Court of Appeals 2 March 2005.
     Nicholls & Crampton P.A., by W. Sidney Aldridge, for plaintiff-appellee.

    Carol Bennett, pro se defendant-appellant.

    
Smith Moore LLP, by James L. Gale and Elizabeth Brooks Scherer, for third-party defendant-appellee Ceco Building Systems.

    McGEE, Judge.

    Peden General Contractors, Inc. (plaintiff) and Carol Bennett (defendant) entered into a written agreement (the contract), dated 12 June 1998, for the construction of a pre-engineered steel structure (the building) at Brighton Stables, 1709 Horton Road, Knightdale, North Carolina. The contract specified that defendant agreed to pay plaintiff the sum of $136,568 for construction of the building. Ceco Building Systems (Ceco) was not party to the contract.
    Plaintiff entered into a subcontract with Ceco on 17 July 1999 to design and erect the building. Plaintiff hired another subcontractor to serve as the foundation engineer. Plaintiff supervised the project and supervised the subcontractors. Work on the project was substantially completed by 28 August 1998.
    Defendant paid plaintiff $103,170 on or about 7 August 1998, as partial payment on the contract. Disagreements arose between plaintiff and defendant, and defendant refused to pay the remaining balance of $35,198 owed to plaintiff. Plaintiff filed a labor and materialman's lien on 19 November 1998 and filed a lawsuit to perfect the lien on 19 December 1998, alleging breach of contract, unjust enrichment and other claims. Defendant's amended answer andcounterclaim alleged claims against plaintiff for defects in the construction of the pre-engineered metal structure.
    As a result of defendant's counterclaims, plaintiff filed claims against Ceco as a third-party defendant. Defendant filed cross-claims against Ceco on 20 December 2002.
    Plaintiff attempted to settle the dispute with defendant, and plaintiff and defendant submitted to mediation and non-binding arbitration. In a non-binding arbitration award dated 4 October 2001, the arbitrator concluded that though plaintiff had breached the contract, plaintiff had substantially performed, and was thus entitled to recover the balance of the contract, less the reasonable cost of repairs. Defendant rejected the non-binding arbitration award. Plaintiff and defendant voluntarily entered binding arbitration on 10 September 2002, and an arbitration award concluding that plaintiff owed defendant $13,380.80 was issued on 4 September 2003. Plaintiff tendered the full amount of the arbitration award to defendant, but defendant challenged the arbitration award and sought to modify the award, or have it set aside. The trial court, upon plaintiff's motion, confirmed the arbitration award in an order entered 30 September 2003.
    Defendant moved to alter, amend, or vacate the 30 September 2003 order. The trial court denied defendant's motion in an order entered on 15 October 2003. Defendant subsequently sought relief under Rule 60 of the North Carolina Rules of Civil Procedure, but the motion was denied in an order entered 10 December 2003. The trial court also dismissed defendant's cross-claims against Ceco inan order entered 9 December 2003. Defendant appeals.
    Additional facts are included, as necessary, in the discussion below.

I.
    Defendant first argues that the trial court erred in granting plaintiff's motion for summary judgment on defendant's counterclaim for recission of contract because there was a genuine issue of material fact that the agreement included the sale of "goods" within the purview of the Uniform Commercial Code (UCC). Defendant's sixth counterclaim against plaintiff sought recission of contract by revocation of acceptance. Plaintiff moved for summary judgment on this counterclaim on the grounds that the building constructed by plaintiff did not constitute "goods" under the UCC and was therefore not subject to recission. In an order entered 5 August 2002, the trial court granted plaintiff's motion for summary judgment on defendant's sixth claim, stating "the contract in question was for the construction of a building, which is not 'goods' within the purview of the Uniform Commercial Code and the remedy of Revocation of Acceptance is not available to [defendant]." Defendant argues that the trial court erred in determining that the building was not "goods" when (1) the "steel columns, wall and roof sheeting, end-wall fans, gutters and downspouts and other items included in the contract . . . were movable at the time of identification to the contract[,]" and (2) the building was constructed with pre-engineered components on site. We disagree.    Summary judgment should 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. Gen. Stat. § 1A-1, Rule 56(c) (2003). A moving party "has the burden of establishing the lack of any triable issue of fact. His papers are carefully scrutinized and all inferences are resolved against him." Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976). In the present case, defendant sought recission of contract by revocation of acceptance pursuant to N.C. Gen. Stat. § 25-2.608, which is part of the Sales article of the UCC. N.C. Gen. Stat. § 25-2.101 (2003). The Sales "article applies to transactions in goods[,]" N.C. Gen. Stat. § 25- 2.102 (2003), but does not apply to contracts for services. Hensley v. Ray's Motor Co. of Forest City, Inc., 158 N.C. App. 261, 265, 580 S.E.2d 721, 724 (2003).
    In reviewing contracts that involve both the sale of goods and the provision of services, as does the one in this case, our Court has adopted the predominant factor test set forth in Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974) to determine whether the UCC controls. Hensley, 158 N.C. App. at 265, 580 S.E.2d at 724. Specifically, Bonebrake establishes that:
        The test for inclusion or exclusion [by the UCC] is not whether [the sale of goods and the provision of services] are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved . . . or is a transaction of sale, with laborincidentally involved.

Bonebrake, 499 F.2d at 960. In Hensley, our Court explained that "where the predominant factor of a contract is the rendition of services with the sale of goods incidentally involved, the UCC is not applicable. However, where the predominant factor of the contract is the sale of goods with the provision of services incidentally involved, the UCC controls." Hensley, 158 N.C. App. at 266, 580 S.E.2d at 724. The following factors are relevant to determining the predominant thrust of a contract: "(1) the language of the contract, (2) the nature of the business of the supplier, and (3) the intrinsic worth of the materials." Id. at 266, 580 S.E.2d at 724-25 (quoting Princess Cruises, Inc. v. General Elec. Co., 143 F.3d 828, 833 (4th Cir. 1998), cert. denied, 525 U.S. 982, 142 L. Ed. 2d 399 (1998)).
    In the present case, the contract language indicates that this contract is for the rendition of services; namely, the construction of a building. The first line of the contract states: "Peden General Contractors proposes to construct a 17,000 square foot building on [defendant's] site . . . for the sum of $136, 568.00, . . . as described herein." The contract also includes general conditions of the contract and a provision for building risk and liability insurance. Additionally, specific services necessary for the construction are described in the contract. For instance, plaintiff had the responsibility of providing foundation and structural drawings, and the subcontractors hired by plaintiff had the responsibilities of designing and constructing thefoundation, and designing and manufacturing the components for the pre-engineered building. The majority of the remaining provisions of the contract describe the specifications of the pre-engineered metal building that was to be built, including the building's dimensions. Thus, the language of the contract indicates that it is predominantly a contract for services.
    Furthermore, plaintiff, the supplier of services, is a general contractor. The nature of plaintiff's business involves constructing buildings, not the sale of goods. Finally, we cannot separate out the intrinsic worth of the materials included in the contract from the overall contract price for the construction of the building. Some items, included in the specifications, such as "Galvalume panels" for the roof, are arguably "goods" as defined by N.C. Gen. Stat. § 25-2.105 (2003) ("'Goods' means all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale[.]"). However, none of these items are listed with an associated unit price. Rather, they are items included as part of the building that plaintiff was hired to construct. The only price in the contract is the price of $136,568 for the construction of the building, not the fair market value of the materials alone. Therefore, the intrinsic worth of the items in the contract must be considered as part and parcel of the construction.
    For the foregoing reasons, the predominant thrust of the contract was for the rendition of services. The sale of goods, if any, was merely incidental. Cf. Hensley, 158 N.C. App. at 266, 580S.E.2d at 725 (concluding contract for sale of mobile home was sale of goods under the UCC where the language of the contract dealt with "the price, warranties, description and model of the mobile home," and other terms of sale; the supplier was in business of selling and distributing mobile homes; and the intrinsic worth of the mobile home was approximately the fair market value of a mobile home). The trial court did not err in determining that the UCC did not apply to the contract, or in granting summary judgment to plaintiff on defendant's sixth counterclaim.
II.
    Defendant next argues that the trial court committed reversible error when it dismissed defendant's sixth counterclaim on the ground that defendant's allegations in the sixth counterclaim supported a claim for recission of contract under theories of breach of contract, fraud, and mistake. However, defendant did not provide these legal theories as bases for relief in her sixth counterclaim, as amended. Nor did she argue these theories to the trial court as reasons the trial court should not grant summary judgment on her sixth counterclaim. Thus, as defendant has not properly preserved this assignment of error, we do not review it on appeal. N.C.R. App. P. 10(a) & (b)(1).
III.
    Defendant next argues that the trial court erred in granting defendant's motion to file cross-claims against Ceco as a third- party defendant in an order entered on 20 December 2002. Defendant now seeks to have her cross-claims against Ceco declared void abinitio and a nullity. First, defendant asserts that the trial court lacked jurisdiction to grant defendant's motion to file cross-claims because the action was no longer pending before the trial court because plaintiff and defendant had mutually agreed to binding arbitration on 10 September 2002. However, the Uniform Arbitration Act does not divest a trial court of jurisdiction. Henderson v. Herman, 104 N.C. App. 482, 486, 409 S.E.2d 739, 741 (1991) (stating that a trial court has authority to act before and after but not during the arbitration, but "[a]t no time does the trial court lose jurisdiction"), disc. review denied, 330 N.C. 851, 413 S.E.2d 551 (1992); Adams v. Nelsen, 313 N.C. 442, 446 n.3, 329 S.E.2d 322, 324 n.3 (1985) (stating that nothing in the Uniform Arbitration Act indicates that "the [trial] court does not retain jurisdiction once a party invokes his privilege to arbitrate"); see also N.C. Gen. Stat. § 1-569.26 (2003). Moreover, even if the trial court had been divested of jurisdiction for claims between plaintiff and defendant because of their agreement to enter binding arbitration, the trial court was not divested of jurisdiction over claims relating to Ceco because Ceco was not a party to the agreement for binding arbitration.
    Second, defendant argues her cross-claims against Ceco should be declared a nullity because the trial court lacked personal jurisdiction over Ceco. We first note that defendant may not challenge whether the trial court has personal jurisdiction over Ceco. See Leroy v. Great Western United Corp., 443 U.S. 173, 180, 61 L. Ed. 2d 464, 472 (1979) (stating that both venue and personaljurisdiction are personal privileges of the defendant). Moreover, though Ceco initially challenged the trial court's jurisdiction on the grounds of personal jurisdiction, Ceco waived this challenge when it consented to the trial court's judgment by not appealing the matter. See Jones v. Summers, 117 N.C. App. 415, 418, 450 S.E.2d 920, 922 (1994) (stating that the defendant was bound to the part of the order that he had not appealed), disc. review denied, 340 N.C. 112, 456 S.E.2d 315 (1995). Thus, the trial court had jurisdiction to grant defendant's motion to file cross-claims against Ceco and defendant cannot now seek to have her cross-claims declared null and void. Defendant's arguments are without merit.
IV.
    Defendant next argues that the trial court erred when it entered orders after plaintiff and defendant had voluntarily submitted their dispute to binding arbitration. Defendant again argues that orders entered by the trial court after plaintiff and defendant entered into binding arbitration are void ab initio because the trial court lacked jurisdiction. Specifically, defendant argues that the following six orders entered by Judge Stephens in Wake County Superior Court are void: (1) order confirming arbitration award entered on 30 September 2003; (2) order denying defendant's motion to alter, amend, or vacate the 30 September 2003 order entered on 15 October 2003; (3) order granting Ceco's motion to dismiss defendant's cross-claims entered on 9 December 2003; (4) order denying defendant's Rule 60 motion entered 10 December 2003; (5) order denying defendant's motion to vacateentered on 31 December 2003; and (6) order striking prior order of discontinuance entered 22 January 2004.
    However, as we discussed above, the trial court is not divested of jurisdiction when parties enter binding arbitration. Rather, although the trial court must "take a 'hands-off' attitude during the arbitration proceeding[,]" Henderson, 104 N.C. App. at 486, 409 S.E.2d at 741, the trial court is expressly given jurisdiction by statute to confirm, vacate or modify the arbitration award following the arbitration process. See N.C. Gen. Stat. §§ 1-569.22, 1-569.23, & 1-569.24 (2003). In the present case, plaintiff sought to confirm the arbitration award, which we note was favorable to defendant. The trial court acted within its authority when it confirmed the arbitration award in an order entered 30 September 2003, and when it issued all subsequent orders challenged by defendant.
    Nevertheless, defendant argues that the trial court's order of discontinuance entered 18 September 2002 is evidence that the trial court no longer had jurisdiction when plaintiff and defendant entered into binding arbitration. The trial court wrote:
        It having been made to appear to the undersigned that this action [between plaintiff and defendant] has been submitted to binding arbitration by agreement of counsel and that no just cause presently exists for the maintenance of this action.

        It is, therefore, ordered that this action be dismissed without prejudice to reinstate or reopen the same in the event the action is not disposed of as aforesaid.

Contrary to defendant's argument, the order of discontinuance didnot divest the trial court of jurisdiction. As the trial court wrote in its 22 January 2004 order striking the order of discontinuance, its 18 September 2002 order of discontinuance was "an administrative order of discontinuance . . . to remove the case from the list of active cases to [ensure] that the case would not be inadvertently re-calendared." Additionally, the trial court subsequently ordered the 18 September 2002 order of discontinuance "stricken, nunc pro tunc, as the date of such order." The order of discontinuance did not remove the trial court's jurisdiction over the matter, and we overrule defendant's assignments of error on this issue.
V.
    Defendant similarly argues that the trial court erred when it entered orders on 9 December 2003 and 22 January 2004 on the ground that the trial court had been divested of jurisdiction when defendant filed notice of appeal. Defendant filed notice of appeal on 30 October 2003 from the order confirming the arbitration award entered 30 September 2003 and from the order denying defendant's Rule 59 motion to alter, amend, or vacate the 30 September 2003 order entered 15 October 2003. Subsequently, in an order entered 9 December 2003 the trial court dismissed defendant's cross-claims against Ceco because there was no "basis in law or fact to support" the claims. The trial court also entered an order on 22 January 2004 striking a prior order of discontinuance nunc pro tunc. Defendant asserts that the trial court lacked jurisdiction to issue these two orders because defendant had filed a notice of appeal.     Generally, "once a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio." RPR & Assocs. v. University of N.C.-Chapel Hill, 153 N.C. App. 342, 346, 570 S.E.2d 510, 513 (2002), disc. review denied, 357 N.C. 166, 579 S.E.2d 882 (2003). However, "[w]here a party appeals from a nonappealable interlocutory order . . . such appeal does not deprive the trial court of jurisdiction, and thus the [trial] court may properly proceed with the case." Id. at 347, 570 S.E.2d at 514. "An order is interlocutory if it does not determine the entire controversy between all of the parties." Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). As a general rule, "there is no right of immediate appeal from an interlocutory order." Id. However, interlocutory orders may be immediately appealed when: (1) "the trial court enters 'a final judgment as to one or more but fewer than all of the claims or parties' and the trial court certifies in the judgment that there is no just reason to delay the appeal[,]" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (quoting N.C. Gen. Stat. § 1A-1, Rule 54(b) (1993)), or (2) "delaying the appeal will prejudice a substantial right." Abe, 130 N.C. App. at 334, 502 S.E.2d at 881.
    In the present case, the orders from which defendant gave notice of appeal were interlocutory because they only involved claims between plaintiff and defendant. Ceco was not party to the binding arbitration. Therefore, the order confirming thearbitration award and the order denying defendant's motion to alter, amend or vacate the order confirming the arbitration award did not "determine the entire controversy between all of the parties ." See id. Regardless of whether the orders from which defendant appealed were immediately appealable, they did not deprive the trial court of jurisdiction to hear claims between defendant and Ceco. The trial court had the authority to dismiss defendant's cross-claims against Ceco in its 9 December 2003 order.
    Similarly, the trial court retained jurisdiction to determine procedural issues and remaining claims between plaintiff and defendant. Nothing in the record indicates that the interlocutory orders from which defendant appealed on 30 October 2003 were immediately appealable. The trial court did not certify the orders entered on 30 September 2003 and 15 October 2003 as being final judgments from which appeal could be taken without delay. Nor is there any evidence that delaying the appeal of these orders would have prejudiced a substantial right of defendant. Moreover, defendant did not pursue her interlocutory appeal; she waited until the trial court entered final judgment resolving all claims between all parties before docketing her appeal to our Court. Defendant waived her right to pursue an interlocutory appeal, and defendant's notice of appeal for the 30 September 2003 and 15 October 2003 orders did not divest the trial court of jurisdiction to strike its previous order of discontinuance nunc pro tunc.
VI.
    Defendant finally argues that the trial court erred inpresiding over matters affecting defendant's rights under the contract when the trial court denied defendant her right to a fair hearing before an unbiased court. Defendant asserts that she was therefore denied due process of law. However, defendant does not cite any legal or factual basis for her claim that she was denied her due process rights. Since defendant does not present any argument or any authority in support of this assignment of error, it is abandoned pursuant to N.C.R. App. P. 28(b)(6).
VII.
    In addition to making the above arguments, defendant filed various motions regarding her appeal. Defendant filed three motions for sanctions against plaintiff and Ceco pursuant to N.C.R. App. P. 34(a)(3). Upon review, we do not find anything in plaintiff's or Ceco's briefs, or any other document submitted in the appeal, that warrants sanctions. Defendant's three motions for sanctions are denied.
    We also deny all of defendant's additional motions.
    Affirmed.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***