SMITH & SONS PAVING COMPANY,
Plaintiff,
v
.
Wake County
No. 01 CVS 3264
NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION,
Defendant.
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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