The opinion
Judge VAUGHN
dissenting.
I vote to grant discretionary review of this interlocutory order denying appellants’ motion to dismiss and to reverse the same. Such claims as Mangum may have against appellants arise out of the written contract — whether for breach of the contract by failing to remove the gas lines or for the liquidated delay damage withheld by appellants. In that contract, Mangum agreed that the timely filing of a claim with the State Highway Administrator “shall be a condition precedent to bringing” an action for any claim “under the said contract.” G.S. 136-29. Since Mangum did not comply with the condition precedent, the Superior Court had no subject matter jurisdiction.
I do not, as the majority states, understand the State to argue that the Tort Claims Act “is the only substantive law waiving the State’s sovereign immunity.” Obviously it is not. The question of sovereign immunity does not arise in the case and State v. Smith, quoted by the majority, does not appear to be relevant. Indeed, the Court in Smith expressly referred to the statute in question as follows:
“The legislature has already consented to be sued in many important contractual situations for example . . . G.S. 136-29(b) allows a road construction contractor to sue if his contract claim is denied by the State Highway Administrator. . . .” (Emphasis added.)
*539 Smith v. State, 289 N.C. 303, 321 .
Mangum could not have filed its suit directly against appellants because it did not comply with the contract and the statute. Even if the State could be made a third party defendant in a contract action, and it cannot in the absence of legislative authorization, the failure to meet the condition precedent would still bar the suit.