#### PROPST CONSTRUCTION CO. v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION

No. 291PA82

(Filed 3 November 1982)

Highways and Cartways § 9— action on completed highway construction contract — trial by judge without jury

The Court of Appeals erred in remanding for trial by jury a case concerning a completed contract for the construction of a state highway, since under G.S. 136-29(c) such an action is to be tried by a judge without a jury.

On discretionary review of the decision of the Court of Appeals, 56 N.C. App. 759, 290 S.E. 2d 387 (1982), reversing summary judgment for defendant entered by Wood, J., at the 21 April 1981 Session of Superior Court, MONTGOMERY County.

Kluttz, Hamlin, Reamer, Blankenship & Kluttz, by Clarence Kluttz and Malcolm B. Blankenship, Jr., for plaintiff appellee.

Rufus L. Edmisten, Attorney General, by Blackwell M. Brog-den, Jr., Assistant Attorney General, for defendant appellant.

PER CURIAM.

The Court of Appeals erred in remanding this case for trial by jury. Under N.C.G.S. 136-29(c), any controversy concerning a completed contract for the construction of a state highway is to be tried by a judge without a jury. Therefore, the opinion of the Court of Appeals is modified to the extent that the controversy is remanded for trial by a judge sitting as the finder of fact. Except as modified herein, the opinion of the Court of Appeals is affirmed and adopted by this Court.

Modified and affirmed.