Metric Constructors, Inc. v. Lentz

• Citation: 31 N.C.App. 88,228 S.E.2d 533
• Decision Date: 06 October 1976
• Docket Number: No. 7610SC364,7610SC364
• Court: Court of Appeal of North Carolina (US)
• Parties: 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.

Page 533

228 S.E.2d 533

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.

Oct. 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 While Chapter 143 of Article 33 was repealed by the 1973 General Assembly, effective 1 February 1976, the material provisions of said chapter are now set forth in Article 4 of Chapter 150A.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...