An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-403

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2003

SMITH & SONS PAVING COMPANY,
        Plaintiff,

v .                             Wake County
                                No. 01 CVS 3264
NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION,
        Defendant.

    Appeal by plaintiff from order entered 14 September 2001 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 10 February 2003.

    Smith, Currie & Hancock, LLP, by Harry R. Bivens, for plaintiff-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General, Joseph E. Herrin, for the State.

    EAGLES, Chief Judge.

    Smith & Sons Paving Company (“plaintiff”) appeals from order dismissing their action with prejudice pursuant to Rules 12(b)(1), (2), (6), and (h)(3). After careful consideration of the briefs and record, we affirm.
    The North Carolina Department of Transportation (“defendant”) awarded plaintiff, a North Carolina corporation, contracts in several projects prior to the summer of 1999. These projects included: Project No. 6.732466 (SR1511A, Caldwell County); Project No. 6.752001B (SR1131A, Watauga County); Project No. 6.752055T (SR1550B, Watauga County); and Project No. 9.8111947 (NC18/268,Wilkes County). On plaintiff's summer 1999 work schedule, the Caldwell County project preceded the remaining three projects.
    Plaintiff and defendant subsequently entered into a Supplemental Agreement for the Caldwell County project. Plaintiff contends that the “extra work” involved with the Supplemental Agreement “destroyed [plaintiff's] schedule for the remainder of the year” and caused plaintiff to start work late on the other three projects.
    Because plaintiff completed the work late on the Watauga projects and the Wilkes project, defendant assessed liquidated damages for each of these projects in the amount of: $58,450.00 for Project No. 6.752001B; $46,200.00 for Project No. 6.752055T; and $45,500.00 for Project No. 9.8111947. Plaintiff alleges he submitted a verified claim pursuant to G.S. § 136-29(a) for these three projects to the State Highway Administrator.
    The plaintiff, pursuant to G.S. § 136-29(c), commenced this action in superior court. The plaintiff alleges in its complaint that defendant's “conduct constituted a constructive 'alteration of the plans or details of construction' and/or 'extra work' under the Contract” and that defendant's “failure to extend the completion date constituted a substantial and material breach . . . of the Work Order.”
    Defendant moved to dismiss pursuant to Rules 12(b)(1), (2), (6) and (h)(3) of the North Carolina Rules of Civil Procedure. The trial court granted defendant's motion to dismiss. Plaintiff appeals.    On appeal, plaintiff contends that the trial court erred in granting defendant's Rule 12(b)(1), (2), (6) and (h)(3) motion to dismiss. Plaintiff also contends that the trial court erred in granting defendant's motion to dismiss based on sovereign immunity when the plaintiff alleged “a breach of a contract outside those breaches for which damages are specifically assigned in defendant's standard specification” and alleged sufficient facts to establish a breach of contract “under the defendant's standard specifications.” Plaintiff further contends that the trial court erred in granting defendant's motion to dismiss because the public policy of North Carolina “precludes defendant from avoiding its contractual obligations through a sovereign immunity defense.” After careful consideration, we disagree.
    Plaintiff first contends that the trial court erred in granting defendant's Rule 12(b)(1) motion to dismiss. Plaintiff argues that it followed the procedures established by statute which would provide the trial court with subject matter jurisdiction.
    “An appellate court's review of an order of the trial court denying or allowing a Rule 12(b)(1) motion is de novo . . . .” Smith v. Privette, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998).
    The North Carolina Department of Transportation “is not subject to suit except in the manner provided by statute.” Bridge Co. v. Highway Comm., 30 N.C. App. 535, 547, 227 S.E.2d 648, 655 (1976). “The sole statutory grounds that allow suit against the State Highway Administrator are provided in [G.S. § 136-29].” Inre Thompson Arthur Paving Co., 81 N.C. App. 645, 648, 344 S.E.2d 853, 855, disc. review denied, 318 N.C. 506, 349 S.E.2d 874 (1986). G.S. § 136-29 (2001) states that:
         Adjustment and resolution of highway construction contract claim.

            (a) A contractor who has completed a contract with the Department of Transportation to construct a State highway and who has not received the amount he claims is due under the contract may submit a verified written claim to the State Highway Administrator for the amount the contractor claims is due. The claim shall be submitted within 60 days after the contractor receives his final statement from the Department and shall state the factual basis for the claim.

            . . . The State Highway Administrator may allow, deny, or compromise the claim, in whole or in part. The State Highway Administrator shall give the contractor a written statement of the State Highway Administrator's decision on the contractor's claim.

            (b) A contractor who is dissatisfied with the State Highway Administrator's decision on the contractor's claim may commence a contested case on the claim under Chapter 150B of the General Statutes. The contested case shall be commenced within 60 days of receiving the State Highway Administrator's written statement of the decision.

            (c) As to any portion of a claim that is denied by the State Highway Administrator, the contractor may, in lieu of the procedures set forth in subsection (b) of this section, within six months of receipt of the State Highway Administrator's final decision, institute a civil action for the sum he claims to be entitled to under the contract by filing a verified complaint and the issuance of a summons in the Superior Court of Wake County or in the superior court of any county where the work under the contract was performed. The procedure shall be the same as in all civil actions except that all issues shall be tried by the judge, without a jury. Specifically, G.S. § 136-29(c) states that “[a]s to any portion of a claim that is denied by the State Highway Administrator, the contractor may . . . institute a civil action for the sum he claims to be entitled.” (Emphasis added.) This Court has held that a plaintiff is bound by the theory of recovery that the plaintiff presents to the State Highway Administrator and cannot develop additional theories in the superior court. Bridge Co., 30 N.C. App. at 547, 227 S.E.2d at 655. See also In re Thompson Arthur Paving Co., 81 N.C. App. at 649, 344 S.E.2d at 855. “This strict reading is in accordance with the principle of retaining to the State all sovereign immunity that is not expressly waived.” In re Thompson Arthur Paving Co., 81 N.C. App. at 649, 344 S.E.2d at 855.
    “Before a party may pursue a judicial action against the state for money claimed to be due under a highway construction contract, it must first pursue its administrative remedies.” In re Huyck Corp. v. Mangum, Inc., 309 N.C. 788, 792, 309 S.E.2d 183, 186 (1983). “These conditions must be satisfied to vest the trial court with jurisdiction to hear the action.” C. W. Matthews Contracting Co., Inc. v. State of North Carolina, 75 N.C. App. 317, 319, 330 S.E.2d 630, 631 (1985).
    “When reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), a trial court may consider and weigh matters outside the pleadings.” Department of Transp. v. Blue, 147 N.C. App. 596, 603, 556 S.E.2d 609, 617 (2001), disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). Plaintiff's verified complaint to the State Highway Administrator for each ofthe three projects stated that: “[t]he administration of Purchase Order Contracts in Division 11 has caused delays on several projects, including this project. We request immediate action be taken on our claims, so that future Purchase Order Contracts can be administrated properly.”
    Here, the plaintiff's complaint alleged in a conclusory manner that plaintiff has “properly pursued” its administrative remedies pursuant to G.S. § 136-29. Plaintiff alleged in its complaint in Superior Court two theories of recovery for each project. The first theory was that the conduct by defendant “constituted a constructive 'alteration of the plans or details of construction' and/or 'extra work' under the Contract.” The second theory was that the “failure to extend the completion date constituted a substantial and material breach by the [defendant] of terms of the Work Order.”
    Plaintiff did not raise either of these allegations in its verified complaint to the State Highway Administrator. The plaintiff may not develop new or additional theories of recovery at the trial court level. See Bridge Co., 30 N.C. App. at 547, 227 S.E.2d at 655; In re Thompson Arthur Paving Co., 81 N.C. App. at 649, 344 S.E.2d at 855. The trial court does not have jurisdiction over these new and additional claims and defendant retains its sovereign immunity.
    Accordingly, the decision of the trial court is affirmed.
    Affirmed.
    Judges MARTIN and GEER concur.    
    Report per Rule 30(e).

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