Lincoln Construction Co. v. Property Control & Construction Division of the Department of Administration ( 1969 )

165 S.E.2d 338 (1969) 3 N.C. App. 551

LINCOLN CONSTRUCTION COMPANY
v.
The PROPERTY CONTROL AND CONSTRUCTION DIVISION OF the DEPARTMENT OF ADMINISTRATION of the State of North Carolina.

No. 681SC405.

Court of Appeals of North Carolina.

February 5, 1969.

Pittman, Staton & Betts, by William W. Staton, Sanford, and Stevens, Burgwin, McGhee & Ryals, by Granville Ryals, Wilmington, for plaintiff appellee.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Parks H. Icenhour, and Staff Atty. William B. Ray, Raleigh, for defendant appellant.

FRANK M. PARKER, Judge.

Appellant's first assignment of error is directed to the court's order overruling defendant's demurrer to plaintiff's complaint. Defendant's demurrer challenged the jurisdiction of the superior court to adjudicate the matters alleged in the complaint.

It is settled as a general rule that the State may not be sued unless by statute it has consented to be sued or has otherwise waived its immunity from suit. Teer Co. v. North Carolina State Highway Commission, 265 N.C. 1, 143 S.E.2d 247; Ferrell v. North Carolina State Highway Commission, 252 N.C. 830, 115 S.E.2d 34. The defendant in this case is an agency of the State. It is not subject to suit on contract or for breach thereof unless and except in the manner expressly authorized by statute. Moreover, statutes permitting suit, being in derogation of the sovereign right of immunity, are to be strictly construed. Floyd v. North Carolina State Highway, etc., Commission, 241 N.C. 461, 85 S.E.2d 703. The question presented by this appeal must be decided in the light of the foregoing well-recognized principles.

Plaintiff's cause of action is founded on contract. Plaintiff contends that it is authorized to maintain this suit by G.S. § 143-135.3. This statute was originally enacted as Chapter 1022 of the 1965 Session Laws which was entitled "An Act To Provide For The Equitable And Expeditious Settlement Of Controversies Arising Between Boards Of Governing Bodies Of The State Government Or Of A State Institution, And The Awardees Of Building Construction Contracts Which Are Subject To Article 8 Of Chapter 143 Of The General Statutes." The statutes first became effective upon its ratification on 14 June 1965. It was reenacted with slight modifications, none of which are material to a decision of this appeal, by Chapter 860 of the Session Laws of 1967, which Act rewrote Article 8 of Chapter 143 of the General Statutes. G.S. § 143-135.3 does authorize the filing of an action in the superior court in certain cases and subject to conditions precedent as specified in the statute. This appeal presents, therefore, the question whether plaintiff's action is authorized by G.S. § 143-135.3.

For present purposes the pertinent portions of this statute are as follows:

"Upon completion of any contract for construction or repair work awarded by any State board to any contractor, under the provisions of this article, should the contractor fail to receive such settlement as he claims to be entitled to under terms of his contract, he may, within 60 days from the time of receiving written notice as to the disposition to be made of his claim, submit to the Director of the Department of Administration a written and verified claim for such amount as he deems himself entitled to under the terms of said contract, setting forth the facts upon which said claim is based. * * *

"As to such portion of the claim which may be denied by the Director of the Department of Administration, the contractor may, within six months from receipt of the decision, institute a civil action for such sum as he claims to be entitled to under said contract by the filing of a verified complaint and issuance of summons in the Superior Court of Wake County or in the superior court of any county wherein the work under said contract was performed. * * *

* * * * * *

"`A contract for construction or repair work,' as used in this section, is defined as any contract for the construction of buildings and appurtenances thereto, including, but not by way of limitation, utilities, plumbing, heating, electrical, air conditioning, elevator, excavation, grading, paving, roofing, masonry work, tile work and painting, and repair work." (Emphasis added.)

It is apparent, therefore, that the statute by virtue of its express language is applicable only to contracts for the construction of buildings and appurtenances thereto which have been awarded under the provisions of Article 8 of Chapter 143 of the General Statutes. Article 8 relates to contracts for public buildings.

By express statutory definition G.S. § 143-135.3 does not apply to contracts for grading and paving unless such grading and paving is an appurtenance to a public building. The contract under which plaintiff sues in this case relates to the grading and paving of an airport and called for construction of a 3000 foot runway, a taxiway, apron and turnaround, and an access road. These were not "appurtenances" to any building, and plaintiff's contract does not fall within the statutory definition provided in G.S. § 143-135.3.

In view of our opinion that G.S. § 143-135.3 is in any event by virtue of the statutory definition contained therein not applicable to the type of contract here sued upon, we have not found it necessary to decide whether the statute is retroactively applicable to any contracts made and performed prior to its enactment. Since plaintiff's suit is not authorized by G.S. § 143-135.3 and since we find no other statute by which the State's sovereign immunity has been waived in this case, defendant's demurrer to plaintiff's complaint should have been sustained.

The order which overruled the demurrer is

Reversed.

BROCK and BRITT, JJ., concur.