Opinion

Bell Arthur Water Corp. v. North Carolina Department of Transportation

  • 101 N.C. App. 305
  • 399 S.E.2d 353
  • 1991 N.C. App. LEXIS 3
Court
Court of Appeals of North Carolina
Filed
Jan 15, 1991
Status
Published
Author
Cozort
On the bench
Lewis, Wells, Cozort
Cited by
6 cases

holding that a statute requiring DOT to pay certain costs of water and sewer line relocation “logically implies waiver of sovereign immunity as to those costs the [DOT] is obligated to pay”

How later courts described this case

  • holding that a statute requiring DOT to pay certain costs of water and sewer line relocation “logically implies waiver of sovereign immunity as to those costs the [DOT] is obligated to pay”
  • state implicitly waived immunity by law requiring DOT to compensate injured party
  • “Although the session laws may indicate the legislature’s intent in passing a statute, if a strict literal interpretation of the language of a statute conflicts with the purpose of the legislature, the purpose of the statute should control.”

Written by the judges who cited it.

The opinion

Judge COZORT

concurring in part and dissenting in part.

I concur with all of the majority’s opinion except that portion which remands the cause to the trial court for entry of judgment for plaintiff in the amounts of $11,985.00 and $6,666.75 for reimbursement of necessary non-betterment costs for State Roads 1124 and 1262, respectively. The affidavit of the president of plaintiff did not sufficiently establish those figures as accurate non-betterment costs. His affidavit is conclusory in nature and fails to include the specific business records, presumably statements, invoices, and billings, from which accurate costs can be ascertained. His affidavit contains these two statements: (1) “it appears that $2,765.00 could be considered as betterment . . and (2) “it appears that $2,545.00 could be considered as betterment . . . .” In my opinion judgment should not be entered based on what “appears . . . could be considered as betterment” to the president of plaintiff. Rather, the trial court should view the records and receive testimony, if necessary, to find precisely the betterment and non-betterment costs. I vote to remand that particular issue to the trial court for appropriate findings and conclusions.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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