City-Wide Asphalt Paving v. Alamance County, COA98-573.

• Citation: 513 S.E.2d 335,132 NC App. 533
• Decision Date: 16 March 1999
• Docket Number: No. COA98-573.,COA98-573.
• Court: Court of Appeal of North Carolina (US)
• Parties: CITY-WIDE ASPHALT PAVING, INC. Plaintiff, v. ALAMANCE COUNTY, Defendant.

513 S.E.2d 335

132 NC App. 533

CITY-WIDE ASPHALT PAVING, INC. Plaintiff, v. ALAMANCE COUNTY, Defendant.

No. COA98-573.

Court of Appeals of North Carolina.

March 16, 1999.

Smith, James, Rowlett & Cohen, L.L.P., by J. David James, Greensboro, for plaintiff-appellant.

David I. Smith, Alamance County Attorney, Graham, for defendant-appellee.

EAGLES, Chief Judge.

In its order granting summary judgment, the trial court noted that it had reviewed defendant's motion and had considered the briefs, pleadings, depositions and affidavits filed by the parties, and having heard argument, had determined that there was no genuine issue as to any material fact. On appeal, plaintiff submits arguments on the issues of (I) res judicata and collateral estoppel; (II) laches; (III) the right to bring a private right of action pursuant to G.S. 143-129.2; (IV) sovereign immunity as to plaintiff's constitutional claims; and (V) arguments based on violation of plaintiff's state constitutional rights to (A) substantive due process and (B) equal protection. Plaintiff contends the trial court erred in granting defendant's motion for summary judgment because there were disputed issues of material fact and defendant was not entitled to judgment as a matter of law.

I

We first consider whether plaintiff's claims are barred by res judicata or collateral estoppel. Plaintiff argues that res judicata does not apply because plaintiff's claims were based on the North Carolina Constitution and the federal court decision was based upon the United States Constitution. Accordingly, plaintiff argues that identical issues were not involved, litigated or determined. Plaintiff asserts that federal due process claims are not identical to state due process claims. Evans v. Cowan, 122 N.C.App. 181, 468 S.E.2d 575, aff'd per curiam, 345 N.C. 177, 477 S.E.2d 926 (1996)

. Plaintiff also argues that collateral estoppel does not apply because the standard of review for the state constitutional claims is different from the standard of review for the federal constitutional claims.

Defendant contends that plaintiff's claim alleging violation of state constitutional rights is barred by collateral estoppel. Defendant argues that Article I, Section 19, the law of the land provision of the North Carolina Constitution, is deemed the same as the equal protection and due process clauses of the Fourteenth Amendment. Accordingly, defendant argues that identical issues here were litigated and determined by the federal court. After careful review of the record, briefs and contentions of both parties, we hold that plaintiff's claims are not barred by res judicata or collateral estoppel. The federal court expressly stated that it "decline[d] to exercise supplemental jurisdiction over Plaintiff's state law claims," and dismissed them without prejudice. While the federal court did review federal due process and equal protection claims, this Court has stated that "[o]ur courts ... when construing provisions of the North Carolina Constitution, are not bound by the opinions of the federal courts `construing even identical provisions in the Constitution of the United States ...'" and that "an independent determination of plaintiff's constitutional rights under the state constitution is required." Evans, 122 N.C.App. at 183-84,468 S.E.2d at 577 (citations omitted). Accordingly, plaintiff's state constitutional claims have not been determined and they are not barred by res judicata or collateral estoppel.

II

We next consider whether plaintiff's claims are barred by laches. Plaintiff argues that the laches defense is not available here because it is only available as a defense to an equitable claim and defendant has sought no equitable relief. Plaintiff additionally argues that even if laches was available, the defendant has failed to carry its burden of showing that any alleged delay was unreasonable and prejudicial.

Defendant argues that this Court can apply laches to bar plaintiff's action. Defendant contends that while laches was originally an equitable remedy, equity is no longer "a separate field of study" with "separate chancellors to apply the doctrine" and "such a rule would be an anachronism now." Accordingly, defendant argues that laches is a permissible defense to all actions, whether equitable or legal in nature. Defendant asserts that plaintiff's two year delay in filing suit has worked to the prejudice and disadvantage of defendant and there was no excuse for the delay. Due to the length of time and financial loss defendant argues that laches should bar plaintiff's claim.

Laches is an equitable defense and is not available in an action at law. Rudisail v. Allison, 108 N.C.App. 684, 688, 424 S.E.2d 696, 699-700 (1993) (citing G.S. 1-52(3)(1983); Coppersmith v. Upton, 228 N.C. 545, 548, 46 S.E.2d 565, 567 (1948); United States v. Mack, 295 U.S. 480, 489, 55 S.Ct. 813, 818, 79 L.Ed. 1559, 1565 (1935) (laches within the term of the statute of limitation is not a defense to action at law); 30A C.J.S. Equity § 128, at 351-52 (1992)). Plaintiff's claims are legal in nature, not equitable. Accordingly, the defense of laches cannot support summary judgment for defendant.

III

We next consider whether plaintiff has a private right of action under G.S. 143-129.2. Plaintiff contends that defendant violated G.S. 143-129.2 when it failed to award the contract to plaintiff as the lowest bidder. Plaintiff argues that while the statute does allow a local government to make a contract award to someone other than the lowest bidder, it is allowed only "[u]pon the determination that the selected proposal is more responsive to the Request for Proposals." Plaintiff argues that defendant has failed to prove that Mace's proposal was more responsive than plaintiff's proposal.

Defendant contends that G.S. 143-129.2 does not provide for a civil cause of action for damages. Additionally, defendant argues that sovereign immunity and the public duty doctrine bar plaintiff's claim.

While our research discloses no case law discussing whether there is a private right of action under G.S. 143-129.2, this Court has allowed a similar action under a related statute, G.S. 143-128(b). Kinsey Contracting Co. v. City of Fayetteville, 106 N.C.App. 383, 416 S.E.2d 607 (1992). In Kinsey, this Court affirmed a trial court's order denying plaintiff's motion for a preliminary injunction, dissolving plaintiff's temporary restraining order and finding that the award of a contract to build a pumping station to a party who was not the lowest responsible bidder was not an abuse of discretion. Id. However, it is not readily apparent on the face of Kinsey whether the plaintiff in Kinsey sued for damages. Only equitable remedies are mentioned. Therefore, Kinsey is not dispositive on whether a private right of action for damages lies under G.S. 143-129.2.

Here, plaintiff did not allege that Alamance County had waived its sovereign immunity. "As required by law, if the plaintiff fails to allege a waiver of immunity ..., the plaintiff has failed to state a claim against a governmental unit or employee." Whitaker v. Clark, 109 N.C.App. 379, 384, 427 S.E.2d 142, 145, disc. review denied, cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993). Accordingly, we hold that as a matter of law sovereign immunity bars plaintiff's claims for damages asserted for violation of G.S. 143-129.2.

IV

We next consider whether defendant has sovereign immunity as to plaintiff's constitutional claims. Plaintiff relies on Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992) and argues that the doctrine of sovereign immunity cannot be asserted against a party seeking to remedy violations of its constitutional rights.

Defendant argues that plaintiff's claim for damages from the alleged violation of the state constitution is barred because plaintiff had an adequate remedy in state law, and in such a situation a direct constitutional claim is not warranted. Corum, 330 N.C. at 782, 413 S.E.2d at 289; Barnett v. Karpinos, 119 N.C.App. 719, 728, 460 S.E.2d 208, 213, disc. review denied, 342 N.C. 190, 463 S.E.2d 232 (1995). Here, defendant contends that if the bid process and awarding of the contract to Mace was illegal, plaintiff could have immediately sued in state court to have the contract declared void or to enjoin performance.

We hold that the doctrine of sovereign immunity does not bar plaintiff's equal protection and due process claims. Defendant suggests that plaintiff should have filed suit to enjoin the contract or have it declared void. However, these remedies are equitable in nature and do not provide plaintiff with an avenue to pursue money damages. Plaintiff's direct action against defendant pursuant to the North Carolina Constitution provides plaintiff's only adequate legal remedy. Plaintiff's direct constitutional action against defendant "completes his remedies." Corum, 330 N.C. at 789, 413 S.E.2d at 294. Accordingly, plaintiff is not precluded from pursuing an action directly under the North Carolina Constitution.

V

We next consider plaintiff's state constitutional claims on their merits. Plaintiff contends that violations of Article I, Section 19 of the North Carolina Constitution are measured by the arbitrary and capricious standard. Plaintiff contends that there was an issue of fact as to whether the defendant acted arbitrarily or capriciously. Plaintiff cites the testimony of State Representative Cary Allred, a former Alamance County Commissioner, that defendant was looking for reasons to reject plaintiff's bid and that the whole bid process was "a farce." Plaintiff argues that this testimony, coupled with the evidence of long time preferential treatment afforded to Mace, raised a factual question of arbitrariness and capriciousness. Furthermore, plaintiff asserts that the defendant's rejection of the low bid was very unusual, and defendant's own purchasing director recommended that the bid be...