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Viking Utilities Corp., Inc. v. Onslow Water & Sewer Auth.

Court of Appeals of North Carolina

March 4, 2014

VIKING UTILITIES CORPORATION, INC., GARLAND W. TUTON, AND SUE C. TUTON, Plaintiffs,
v.
ONSLOW WATER AND SEWER AUTHORITY, Defendant

Heard in the Court of Appeals October 9, 2013.

Counsel Amended March 4, 2014.

Onslow County. No. 12 CVS 3846. Allen Cobb Jr., Judge.

Ward and Smith, P.A., by Ryal W. Tayloe and Jeremy M. Wilson, for plaintiff-appellees.

Turrentine Law Firm, PLLC, by S.C. Kitchen, for defendant-appellant.

STEELMAN, Judge. Judges HUNTER, ROBERT C., and BRYANT concur.

OPINION

Page 63

STEELMAN, Judge.

Appeal by defendant from order filed 18 February 2013 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court.

Where further development of the record is necessary for determination of whether the defendant is entitled to assert the defense of governmental immunity, the trial court did not err by denying defendant's motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), (2), and (6).

I. Factual and Procedural Background

On 16 November 2007, Viking Utilities Corporation, Inc., Garland W. Tuton, and Sue C. Tuton (collectively plaintiffs), entered into an " Asset Purchase Agreement for the Acquisition of the Wastewater System Assets of Viking Utilities Corporation, Inc., by Onslow Water and Sewer Authority." The parties amended the agreement on 17 April 2008. The agreement provided that Onslow

Page 64

Water and Sewer Authority (defendant) would purchase Viking's wastewater system, including real property owned by plaintiffs, for $5,550,000. Defendant paid plaintiffs $500,000 at closing, and the parties agreed that most of the balance of the purchase price, $4,800,000, would be donated to defendant by plaintiffs. The agreement also contained a specific provision that defendant would receive a credit of $250,000 towards the purchase price in return for allowing plaintiffs to connect over the next five years to the wastewater system at any location served by defendant without payment of a " Tap Fee." The credit would be used at the rate of $2,500 per connection. The agreement also contained a specific representation by ...


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