{ "id": 8527654, "name": "BELL ARTHUR WATER CORPORATION, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant", "name_abbreviation": "Bell Arthur Water Corp. v. North Carolina Department of Transportation", "decision_date": "1991-01-15", "docket_number": "No. 903SC326", "first_page": "305", "last_page": "311", "citations": [ { "type": "official", "cite": "101 N.C. App. 305" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "178 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "590" } ], "opinion_index": 0 }, { "cite": "277 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566507 ], "year": 1971, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0460-01" ] }, { "cite": "196 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "774", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "pin_cites": [ { "page": "500", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "371" }, { "page": "371" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "95" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] } ], "analysis": { "cardinality": 554, "char_count": 14389, "ocr_confidence": 0.749, "pagerank": { "raw": 2.535826978996155e-07, "percentile": 0.8129168920659081 }, "sha256": "70126e8419aaf0bf6ea28ba64d382a7a1eebdb3bfa98fec4d5d39e554b6f797e", "simhash": "1:7a2feb4b0ca1185a", "word_count": 2293 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WELLS concurs.", "Judge COZORT concurs in part and dissents in part." ], "parties": [ "BELL ARTHUR WATER CORPORATION, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiff\u2019s appeal involves three questions: 1) whether the trial court erred in entering summary judgment for defendant as to plaintiffs claim for reimbursement of costs relating to highway 222, 2) whether the trial court erred in ordering that the defendant determine the non-betterment costs for state roads 1124 and 1262 in light of the fact that the plaintiff submitted an uncontradicted affidavit as to the costs, and 3) whether the trial court erred in ruling that an affidavit of a legislator stating the legislature\u2019s intent in passing N.C.G.S. \u00a7 136-27.1 not be admitted into evidence.\nDefendant\u2019s appeal involves the issue of whether the trial court erred in entering summary judgment for plaintiff as to plaintiff\u2019s claim for reimbursement of costs relating to state roads 1124 and 1262.\nThe plaintiff, Bell Arthur Water Corporation, is a nonprofit corporation which owned water and sewer lines located on state roads 1124 and 1262, and North Carolina highway 222. Due to road work, the plaintiff was required by the defendant, North Carolina Department of Transportation, to relocate the water and sewer lines located in the right-of-way roads in question. The work performed by the Department of Transportation on state roads 1124 and 1262 was paving and other incidental work. The work performed on highway 222 was repair of a \u201cblown out\u201d storm drain.\nThe plaintiff brought this action to recover the costs it incurred in relocating its water and sewer lines. Plaintiff cites N.C.G.S. \u00a7 136-27.1 as the authority to allow reimbursement. N.C.G.S. \u00a7 136-27.1 provides:\nThe Department of Transportation shall pay the nonbetterment cost for the relocation of water and sewer lines, located within the existing State highway right-of-way, that are necessary to be relocated for a State highway improvement project and that are owned by: (i) a municipality with a population of 5,500 or less according to the latest decennial census; (ii) any water or sewer association or corporation; or (iii) any water or sewer system organized pursuant to Chapter 162A of the General Statutes.\nN.C.G.S. \u00a7 136-27.1. (Emphasis added.)\nThe plaintiff filed two affidavits. One affidavit is a statement by the president of Bell Arthur Water Corporation which discloses its costs allegedly incurred for each of the three roads and which was derived from \u201ccompany business records.\u201d The second affidavit is a statement by Jeff H. Enloe, Jr. a member of the North Carolina General Assembly who sponsored the legislation that resulted in Section 136-27.1 of the North Carolina General Statutes. Mr Enloe\u2019s affidavit addresses the intent of the legislature in adopting N.C.G.S. \u00a7 136-27.1.\nPlaintiff\u2019s Appeal\nThe first issue is whether the trial court erred in entering summary judgment for defendant as to plaintiff\u2019s claim for reimbursement of the relocation costs relating to highway 222.\nThe 1985 Session Laws state that N.C.G.S. \u00a7 136-27.1 should apply \u201conly to State highway improvement projects let to contract after July 1,1985.\u201d This portion of the session laws was not codified. The defendant claims that the legislature intended that the statute only apply to situations where the state has contracted for the project to be performed, and not in situations, as here, where the project is performed by state personnel and equipment. Although the session laws may indicate the legislature\u2019s 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. In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 (1978). Here, a strict literal interpretation of the language in the session laws would override the clear legislative intent to require the Department of Transportation to pay for non-betterment costs due to relocation of sewer and water lines by nonprofit corporations as a result of a state highway improvement project. Therefore, there is no requirement that the project be \u201clet to contract.\u201d\nPlaintiff contends that the work done on highway 222 was a \u201chighway improvement project\u201d within the meaning of N.C.G.S. \u00a7 136-27.1. \u201cIn construing the language of statutes we are guided by the primary rule of construction that the intent of the Legislature controls.\u201d In re Hardy, 294 N.C. at 95, 240 S.E.2d at 371. \u201cUnless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.\u201d Lafayette Transp. Serv., Inc. v. County of Robeson, 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973) (citations omitted). Webster\u2019s Dictionary defines \u201cimprovement\u201d to mean \u201cthe enhancement or augmentation of value or quality: an increasing of profitableness, excellence, or desirability.\u201d It is unclear from the record exactly what work was done to highway 222. If a larger or improved drain pipe was constructed in its place, this would be considered an improvement. The only description in the record of the work performed on highway 222 is that it was work performed to replace a \u201cblown out\u201d storm drain pipe. Thus, there remained a material issue of fact as to whether the work done on highway 222 was actually work that was an improvement. We hold that the trial court erred in granting summary judgment as to that claim and remand the case to determine whether or not the work was an \u201cimprovement\u201d or merely \u201crepair or maintenance.\u201d\nThe plaintiff contends that the trial court erred in ordering that the defendant determine the non-betterment costs for state roads 1124 and 1262 in light of the fact that plaintiff submitted an uncontradicted affidavit as to the costs. The affidavit of the president of Bell Arthur Water Corporation stated that the business records reflect that the total necessary non-betterment costs for highways 1124 and 1262 were $11,985.00 and $6,666.75, respectively. Rule 56(e) provides that \u201c[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(e). Plaintiff\u2019s affidavit stated that he was familiar with the projects in question and that he had reviewed the business records before giving his affidavit. The defendant presented no contradicting affidavit. We hold that the plaintiff adequately met his burden. The trial judge should have also entered summary judgment in plaintiff\u2019s favor with respect to the costs as indicated in the plaintiff\u2019s affidavit.\nThe plaintiff also contends that the trial court erred in refusing to allow an affidavit of a legislator to show the intent of the legislature in passing N.C.G.S. \u00a7 136-27.1. The Supreme Court of North Carolina has stated that \u201c[t]he intention of the legislature cannot be shown by the testimony of a member.\u201d Styers v. Phillips, 277 N.C. 460, 472, 178 S.E.2d 583, 590 (1971). The plaintiff clearly intended to use the affidavit to show the intent of the legislature. Therefore, we hold that the trial judge was correct in refusing to allow the affidavit of the legislator into evidence.\nDefendant\u2019s Appeal\nThe defendant\u2019s assignment of error concerns whether the trial court erred in entering summary judgment for the plaintiff as to the plaintiff\u2019s claims for reimbursement of costs relating to state roads 1124 and 1262. The defendant first states that the trial court erred in entering summary judgment because the doctrine of sovereign immunity barred the plaintiff from suing the defendant. N.C.G.S. \u00a7 136-27.1 expressly provides that the Department of Transportation shall pay certain costs. We hold that the statute logically implies waiver of sovereign immunity as to those costs the Department of Transportation is obligated to pay.\nThe defendant also contends that the statute only applies to projects which have been \u201clet to contract,\u201d that we are bound to give these words their full effect, and that we should consider the fact that the agency administering the law interpreted the statute to apply only to projects \u201clet to contract.\u201d We have already addressed this argument and find that the statute is not limited to situations where the project is \u201clet to contract.\u201d Also, we are not bound by the agency\u2019s interpretation of the statute.\nThe defendant claims that N.C.G.S. \u00a7 136-27.1 must be strictly construed because it is in derogation of the common law rule \u201cthat a public utility is required to vacate and/or adjust at its own expense its utilities located in public streets when such relocation and/or adjustment is necessary to facilitate street and highway improvements.\u201d We have held that if the statute only applies to projects \u201clet to contract,\u201d the intent of the legislature would be overridden. Thus, we are bound to construe the statute as we believe the legislature intended.\nLastly, the defendant claims that the issue of costs had not been determined and, thus, summary judgment was improper. We have already addressed this issue and held that the trial judge should have also entered summary judgment for the plaintiff as to the costs involved in highways 1124 and 1262.\nAs to the trial court\u2019s ruling of summary judgment for defendant concerning highway 222 \u2014 Reversed and Remanded.\nAs to the trial court\u2019s order that defendant determine the non-betterment costs for highways 1124 and 1262 \u2014 Reversed.\nAs to the trial court\u2019s exclusion of affidavit of the legislature\u2014 Affirmed.\nAs to the trial court\u2019s ruling of summary judgment for the plaintiff concerning highways 1124 and 1262 \u2014 Affirmed and also remanded for entry of judgment as to the non-betterment costs of highways 1124 and 1262.\nJudge WELLS concurs.\nJudge COZORT concurs in part and dissents in part.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge COZORT\nconcurring in part and dissenting in part.\nI concur with all of the majority\u2019s 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) \u201cit appears that $2,765.00 could be considered as betterment . . and (2) \u201cit appears that $2,545.00 could be considered as betterment . . . .\u201d In my opinion judgment should not be entered based on what \u201cappears . . . could be considered as betterment\u201d 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.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge COZORT" } ], "attorneys": [ "Speight, Watson and Brewer, by William H. Watson and James M. Stanley, Jr., for plaintiff-appellant and plaintiff-appellee.", "Attorney General Lacy H. Thornburg, by Senior Deputy Attorney General Eugene A. Smith, for defendant-appellee and defendant-appellant." ], "corrections": "", "head_matter": "BELL ARTHUR WATER CORPORATION, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant\nNo. 903SC326\n(Filed 15 January 1991)\n1. Highways and Cartways \u00a7 9 (NCI3d)\u2014 state highway improvement project \u2014 relocation of water and sewer lines \u2014 nonbet-terment costs to be paid by Dept. \u2014 no requirement that project be \u201clet to contract\u201d\nIn enacting N.C.G.S. \u00a7 136-27.1 it was the clear intent of the legislature to require the Department of Transportation to pay for nonbetterment costs due to relocation of sewer and water lines by nonprofit corporations as a result of a state highway improvement project; therefore, there is no requirement that the project be \u201clet to contract.\u201d\nAm Jur 2d, Highways, Streets, and Bridges \u00a7\u00a7 125, 278.\n2. Highways and Cartways \u00a7 9 (NCI3d)\u2014 relocation of water and sewer lines \u2014 reimbursement of nonbetterment costs \u2014 work as \u201cimprovement\u201d \u2014 summary judgment improper\nThe trial court erred in entering summary judgment for defendant as to plaintiff\u2019s claim for reimbursement of the costs for relocation of water and sewer lines along Highway 222 since the only description in the record of the work performed on the highway was that it was work performed to replace a \u201cblown out\u201d storm drain pipe, and there thus remained a material issue of fact as to whether the work done was actually an improvement within the meaning of N.C.G.S. \u00a7 136-27.1.\nAm Jur 2d, Highways, Streets, and Bridges \u00a7\u00a7 125, 278.\n3. Highways and Cartways \u00a7 9 (NCI3d)\u2014 relocation of water and sewer lines \u2014 reimbursement of nonbetterment costs \u2014 uncontradicted affidavit submitted by plaintiff\nThe trial court erred in ordering that defendant determine the nonbetterment costs relating to state roads 1124 and 1262 in light of the fact that plaintiff submitted an uncontradicted affidavit as to the costs.\nAm Jur 2d, Highways, Streets, and Bridges \u00a7\u00a7 125, 278.\n4. Statutes \u00a7 5.1 (NCI3d)\u2014 legislative intent \u2014 legislator\u2019s affidavit inadmissible\nThe trial court did- not err in refusing to allow an affidavit of a legislator to show the intent of the legislature in passing N.C.G.S. \u00a7 136-27.1.\nAm Jur 2d, Statutes \u00a7\u00a7 161, 169.\n5. Highways and Cartways \u00a7 9 (NCI3d)\u2014 relocation of water and sewer lines \u2014reimbursement of nonbetterment costs \u2014 action not barred by doctrine of sovereign immunity\nIn an action for reimbursement of costs incurred in relocating water and sewer lines during improvement to roads, there was no merit to defendant\u2019s contention that the doctrine of sovereign immunity barred plaintiff from suing defendant, since N.C.G.S. \u00a7 136-27.1 expressly provides that the Department of Transportation shall pay certain costs, and the statute logically implies waiver of sovereign immunity as to those costs the Department of Transportation is obligated to pay.\nAm Jur 2d, Highways, Streets, and Bridges \u00a7\u00a7 125, 228.\nJudge COZORT concurring in part and dissenting in part.\nAPPEAL by both plaintiff and defendant from a judgment entered 26 February 1990 in Superior Court, PITT County by Judge Thomas S. Watts. Heard in the Court of Appeals 23 October 1990.\nSpeight, Watson and Brewer, by William H. Watson and James M. Stanley, Jr., for plaintiff-appellant and plaintiff-appellee.\nAttorney General Lacy H. Thornburg, by Senior Deputy Attorney General Eugene A. Smith, for defendant-appellee and defendant-appellant." }, "file_name": "0305-01", "first_page_order": 333, "last_page_order": 339 }