Metric Constructors, Inc. v. Lentz

228 S.E.2d 533 (1976) 31 N.C. App. 88

In the Matter of METRIC CONSTRUCTORS, INC., and Aetna Casualty and Surety Company
v.
Bruce A. LENTZ, Secretary of the Department of Administration, State of North Carolina.

No. 7610SC364.

Court of Appeals of North Carolina.

October 6, 1976.

Fleming, Robinson & Bradshaw, P.A. by J. Carlton Fleming and Joyner & Howison by Robert C. Howison, Jr., Charlotte, for plaintiffs-appellees.

Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Gen. T. Buie Costen, Raleigh, for the State.

BRITT, Judge.

Inasmuch as defendant is challenging the jurisdiction of the superior court to consider and determine this cause, we hold that he has the right of immediate appeal from the orders in question. G.S. 1-277(b).

Defendant contends that his decision is not subject to judicial review and that the trial court erred in denying the motion to dismiss. We find no merit in this contention.

Former G.S. 143-307 (now 150A-43) provides that: "Any person who is aggrieved by a final administrative decision, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this Article . . .." In the case of In re Appeal of Harris, 273 N.C. 20, 159 S.E.2d 539 (1968), the Supreme Court held that (former) Chapter 143, Article 33, of the General Statutes entitled "Judicial Review of Decisions of Certain Administrative Agencies" is to be liberally construed to preserve and effectuate a person's right of review by the courts. While Chapter 143 of Article 33 was repealed by the 1973 General Assembly, effective 1 February 1976, the material provisions of said chapter are now set forth in Article 4 of Chapter 150A.

Defendant argues that his action was not an "administrative decision" within the contemplation of the statute providing for judicial review. We reject this argument and hold that the decision was rendered under former G.S. 143-306(2) in a proceeding in which the rights and duties of the parties were necessarily determined. To obtain judicial review under the former or present chapter, the party must also be an aggrieved person. As stated in In re Assessment of Sales Tax, 259 N.C. 589, 595, 131 S.E.2d 441, 446 (1963): "The expression `person aggrieved' has no technical meaning. What it means depends on the circumstances involved. It has been variously defined: "Adversely or injuriously affected; damnified, having a grievance, having suffered a loss or injury, or injured; prejudiced; also having cause for complaint. More specifically the word(s) may be employed meaning adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights.'" Petitioners were aggrieved persons under former G.S. 143-307 when defendant ordered them to forfeit their $316,600.00 bid bond or be subject to liability for twice that amount.

Defendant next contends that this action is barred by the doctrine of sovereign immunity. This contention also lacks merit. We note the action complained of took place before 2 March 1976 from which date the Supreme Court has held that sovereign immunity will no longer be a defense in an action against the State for breach of contract. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976). Under the doctrine of sovereign immunity, "[t]he State is immune from suit unless and until it has expressly consented to be sued. It is for the General Assembly to determine when and under what circumstances the State may be sued." Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. 168, 173, 118 S.E.2d 792, 795 (1961). The General Assembly has expressly provided a means of judicial review from administrative decisions, plaintiffs have properly followed the procedures set forth by the statutes, therefore, the present action is not barred by sovereign immunity.

Defendant further argues that the court erred by issuing a writ of certiorari. Generally, where there is no provision for appeal from an order of an administrative agency, the proper method for review is by certiorari. Where statutes provide for appeal or review, certiorari will not lie. 1 Strong, N.C. Index 2d, Administrative Law § 5. In this case, the writ of certiorari was unnecessary for judicial review but it was not issued for that purpose. As stated in Sanford v. Oil Co., 244 N.C. 388, 390, 93 S.E.2d 560, 562 (1956): "The writ of certiorari may likewise be used as an ancillary writ to require a lower court or administrative agency to send up to the Superior Court records, papers, documents, and other matter necessary to dispose of the appeal.. . ." Here, statutory authority has provided for judicial review. Nevertheless, the issuance of the writ of certiorari was a proper auxiliary process to enable the court to obtain the necessary information required to dispose of the matter already properly before it. See 2 McIntosh, N.C. Practice and Procedure 2d § 1861.

Defendant's final contention is that the court erred in staying implementation of his order pending judicial review of the administrative decision. We find no merit in this contention. G.S. 143-312 (now 150A-48) provides that: "At any time before or during the review proceeding the aggrieved person may apply to the reviewing court for an order staying the operation of the administrative decision pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper." We hold that the court properly entered the stay order.

On judicial review, the superior court must determine the issue whether Metric's bid was based upon an honest and good faith mistake, immediately communicated to the State before any change of position, and upon which equitable relief should be granted.

For the reasons stated, the orders appealed from are affirmed and this cause is remanded to the superior court for further proceedings.

Orders affirmed and cause remanded.

PARKER and CLARK, JJ., concur.