1. Appeal and Error--appealability--denial of summary judgment-
-sovereign immunity
The denial of a motion for summary judgment was immediately
appealable where defendants had asserted a claim of sovereign
immunity.
2. Public Officers and Employees--extension agent--state
employee with valid contract
Defendants were not protected by sovereign immunity and the
trial court did not err by denying defendants' motion for summary
judgment where plaintiff was an Area Education Extension Agent,
the letter which offered plaintiff the appointment indicated that
the position would be evaluated at the end of three years and a
decision made then as to whether to continue the position,
plaintiff began his employment on 1 August 1994, plaintiff was
notified of his dismissal on 31 March 1995, and he filed a
complaint alleging breach of contract in that the appointment
letter constituted a contract for three years. The District
Extension Director had the authority to offer plaintiff the
appointment and the duties of the position, coupled with its
supervision, clearly make the Area Education Extension Agent a
State employee rather than the holder of a public office.
Plaintiff was an employee of the State with a valid employment
contract and the State impliedly consented to be sued for damages
for breach of the contract.
Voerman Law Firm, PLLC, by David P. Voerman and David E.
Gurganus, for plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney GeneralSylvia Thibaut and Assistant Attorney General Thomas O.
Lawton, III, for defendants-appellants.
CAMPBELL, Judge.
Defendants appeal the trial court's denial of their motion to
dismiss and motion for summary judgment.
(See footnote 1)
For the reasons
discussed herein, we affirm the trial court.
By letter dated 26 July 1994 and signed by Everett M. Prosise
(“Prosise”), District Extension Director, North Carolina
Cooperative Extension Service (“NCCES”), plaintiff was offered
appointment as Area Specialized Environmental and Natural Resources
Education Extension Agent (“Area Education Extension Agent”) with
responsibilities in Onslow, Brunswick, New Hanover, Pender,
Carteret, Craven, Pamlico and Beaufort Counties. According to the
letter, the position to which plaintiff was offered appointment was
to be evaluated at the end of three years, at which time a decision
would be made whether to continue the position. Plaintiff's salary
was to be thirty-nine thousand dollars ($39,000) annually, paid
from State sources, and plaintiff was advised that a performance
appraisal was to be conducted at the end of his first year to
assess his effectiveness. Plaintiff accepted the appointment andbegan his employment on or about 1 August 1994. After attending an
orientation program, plaintiff began the performance of his duties,
with his office located in Onslow County.
On or about 31 March 1995, plaintiff was notified by letter
dated 1 March 1995 and signed by F. Daniel Shaw (“Shaw”), County
Extension Director (“CED”) for Onslow County, that he was being
terminated from his position. The termination letter advised
plaintiff that his position had been established on a probationary
basis, and that based on plaintiff's unsatisfactory performance
rating on his six-month performance appraisal, his employment was
being terminated as of 31 March 1995. Plaintiff was informed that
he would continue to receive his salary and employee benefits
through 30 June 1995. By letter dated 4 April 1995 and addressed
to Dr. Billy Caldwell, Director of the NCCES, plaintiff requested
reversal of his termination and relocation to another county.
Despite this request, plaintiff was terminated as of 31 March 1995
and paid through the end of June 1995.
On 31 March 1998, plaintiff filed the complaint in the instant
action against the State of North Carolina, North Carolina State
University, North Carolina State University College of Agriculture
and Life Sciences, NCCES, Prosise, in his official capacity as
District Extension Director of the NCCES, and Shaw, in his official
capacity as CED of Onslow County (collectively, “defendants”). In
his complaint, plaintiff alleged that the 26 July 1994 letter
constituted a contract between him and defendants, whereby he would
be employed for three years at an annual salary of $39,000.00, with
a review of his performance to be conducted in one year. Further,plaintiff alleged that he was never advised of his status as a
probationary employee prior to receiving the termination letter,
and that he had satisfactorily performed all of the requirements of
his position and his termination was not based upon any justifiable
reasons or cause. Plaintiff alleged that defendants had breached
the contract between the parties, and that defendants' breach was
willful, intentional and malicious, entitling plaintiff to recover
punitive damages.
By order dated 20 October 1999 and filed on 12 January 2000,
Judge Jay D. Hockenbury denied defendants' motion for summary
judgment. On 1 February 2000, the parties entered into a final
pretrial order signed by Judge Charles H. Henry, and the trial was
scheduled for 9 October 2000. On 23 March 2000, defendants filed
a motion to dismiss and a motion for summary judgment, claiming
defendants were entitled to sovereign immunity from plaintiff's
suit. Defendants' motion was denied by order entered 12 July 2000
by Judge Charles H. Henry. Defendants appeal, arguing they are
entitled to sovereign immunity. We disagree.
[1]We note initially that the order denying defendants'
motion for summary judgment is interlocutory, and, as a general
rule, such orders are not immediately appealable. Price v. Davis,
132 N.C. App. 556, 558, 512 S.E.2d 783, 785 (1999). If, however,
“the trial court's decision deprives the appellant of a substantial
right which would be lost absent immediate review[,]” an immediate
appeal is permitted under N.C. Gen. Stat. §§ 1-277(a) and 7A-
27(d)(1). N.C. Dept. of Transportation v. Page, 119 N.C. App. 730,
734, 460 S.E.2d 332, 334 (1995). We have repeatedly held “thatappeals raising issues of governmental or sovereign immunity affect
a substantial right sufficient to warrant immediate appellate
review.” Price, 132 N.C. App. at 558-59, 512 S.E.2d at 785 (1999);
See also Derwort v. Polk County, 129 N.C. App. 789, 501 S.E.2d 379
(1998). In the instant case, defendants have asserted a claim of
sovereign immunity and, therefore, this appeal is properly before
us.
[2]Defendants argue that summary judgment should have been
granted as to plaintiff's breach of contract claim. Summary
judgment is properly granted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C. R. Civ. P. 56(c)(2000). The movant bears
the burden of proving that no triable issue exists, and he may do
this “by proving that an essential element of the opposing party's
claim is nonexistent, or by showing through discovery that the
opposing party cannot produce evidence to support an essential
element of his claim or cannot surmount an affirmative defense
which would bar the claim.” Collingwood v. G.E. Real Estate
Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).
Defendants contend that the doctrine of sovereign immunity
protects them from plaintiff's suit. It has long been the
established law of North Carolina that the State and its agencies
cannot be sued except with consent or upon waiver of sovereign
immunity. Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412,414 (1998); Truesdale v. University of North Carolina, 91
N.C. App.
186, 192, 371 S.E.2d 503, 506 (1988), disc. review denied, 323 N.C.
706, 377 S.E.2d 229, cert. denied, 493 U.S. 808, 107 L. Ed. 2d 19
(1989). This immunity from suit also protects public officials
sued in their official capacity. Messick v. Catawba County, 110
N.C. App. 707, 714, 431 S.E.2d 489, 493, disc. review denied, 334
N.C. 621, 435 S.E.2d 336 (1993). However, the North Carolina
Supreme Court has held “that whenever the State of North Carolina,
through its authorized officers and agencies, enters into a valid
contract, the State implicitly consents to be sued for damages on
the contract in the event it breaches the contract.” Smith v.
State, 289 N.C. 303, 320, 222 S.E.2d 412, 423-24 (1976). In
Whitfield v. Gilchrist, 348 N.C. 39, 497 S.E.2d 412 (1998), the
Supreme Court held that the State's waiver of sovereign immunity
only applies to express contracts and that contracts implied in
law, such as a claim in quantum meruit, are insufficient to
constitute a waiver of the State's sovereign immunity. Thus,
“[o]nly when the State has implicitly waived sovereign immunity by
expressly entering into a valid contract through an agent of the
State expressly authorized by law to enter into such contract may
a plaintiff proceed with a claim against the State upon the State's
breach.” Whitfield, 348 N.C. at 43, 497 S.E.2d at 415 (emphasis in
original).
Defendants argue that Prosise, as District Extension Director
of NCCES, did not have the actual authority to enter into anemployment contract with plaintiff, or anyone else, on behalf of
the State of North Carolina or North Carolina State University.
Therefore, defendants contend that the alleged employment contract
in the instant case is not a valid contract expressly authorized by
law and, thus, the State has not consented to being sued upon its
breach. We disagree.
In his complaint, plaintiff alleges that Prosise, as District
Extension Director, had the authority to enter into contracts with
employees of the NCCES. In their answer, defendants admit that the
26 July 1994 appointment letter offered plaintiff employment as
Area Education Extension Agent, and that plaintiff accepted
employment with the NCCES. By affidavit dated 16 June 1999,
Prosise admits that, as with all other CED and County Extension
Agent (“CEA”) positions, the final decision to hire plaintiff was
a joint decision made by Prosise, as District Extension Director of
the NCCES, and the NCCES Director of County Operations, with the
advice and approval of the NCCES Personnel Director. In his later
affidavit, dated 21 March 2000, Prosise again admits that he
offered plaintiff appointment as Area Education Extension Agent.
However, in this subsequent affidavit, Prosise states that the
appointment letter was not an offer of an employment contract,
because he had no authority to offer a contract of employment to
anyone under his supervision. Defendants also introduced the
affidavit of Larry K. Monteith (“Monteith”), Chancellor of North
Carolina State University (“NCSU”) at the time plaintiff was
offered appointment as Area Education Extension Agent. In this
affidavit, Monteith states that he never granted Prosise theauthority to enter into employment contracts on behalf of NCSU, but
that as District Extension Director of NCCES, Prosise did have the
authority to make offers of appointment to County Extension Agents.
We believe that this evidence indicates that Prosise in fact
had the actual authority to offer plaintiff appointment as Area
Education Extension Agent. By their sworn affidavits, both Prosise
and former Chancellor Monteith admit that Prosise was authorized to
offer the appointment. Having found no genuine issue of material
fact, we conclude as a matter of law that Prosise was authorized to
offer plaintiff the appointment. Therefore, the only way
defendants can prevail on summary judgment on their claim of
sovereign immunity is if plaintiff's appointment can properly be
considered not to constitute an employment contract.
Defendants briefly address in their brief the argument that
plaintiff's appointment does not constitute an employment contract.
However, we are not persuaded by defendants' argument.
In order for plaintiff's breach of contract action against the
State for the salary and other benefits he alleges he would have
earned during the remainder of his unexpired three-year term as
Area Education Extension Agent to be tenable, it must be based upon
his status as a State employee under a valid contract of
employment. See Smith v. State, 289 N.C. 303, 222 S.E.2d 412
(1976). In Smith, Chief Justice Sharp reiterated “the law of this
State that 'an appointment or election to public office does not
establish contract relations between the persons appointed or
elected and the State.'” Smith, 289 N.C. at 307, 222 S.E.2d at 416(quoting Mial v. Ellington, 134 N.C. 131, 149, 46 S.E
. 961, 967
(1903) (citation omitted)).
In drawing the distinction between public office and
employment, Chief Justice Sharp wrote:
“[A] position is a public office when it is
created by law, with duties cast on the
incumbent which involves some portion of the
sovereign power and in the performance of
which the public is concerned. . . .”
Id. at 307-08, 222 S.E.2d at 416 (citation omitted). Based on this
distinction, the Court in Smith held that the plaintiff,
Superintendent of Broughton Hospital, was an employee of the State,
and, upon his appointment as superintendent, the State had entered
into an employment contract with the plaintiff. The Court reasoned
that, as Superintendent of Broughton Hospital, the plaintiff was
simply a medical expert employed to supervise a psychiatric
hospital owned and operated by the State. The plaintiff had no
duties which required or permitted him to exercise any portion of
the sovereign power of the State, such duties being exercised by
the State Board of Mental Health.
In the instant case, plaintiff was appointed by the District
Extension Director of the NCCES to the newly created position of
Area Education Extension Agent. According to the affidavit of
Prosise dated 16 June 1999, this position was created to serve as
a consultant to County Extension Agents in the Southeast District
on environmental and natural resources issues, with a focus on
those issues affecting coastal counties. The office for the
position was to be located in Onslow County, with the positionbeing directly supervised by the Onslow County CED. The position
was to be treated like any other CEA and CED position, with the
final hiring decision to be made by the NCCES District Extension
Director and the NCCES Director of County Operations, with advice
and approval of the NCCES Personnel Director. Having been approved
for funding, the position was advertised to the public by way of a
vacancy announcement that read as follows:
The individual in this position will monitor
environmental regulations and the programming
opportunities that affect North Carolina's
counties. This position will be charged with
supporting county programs with environmental
information, developing grants to support
programming for critical needs, coordinating
state specialists, interpreting regulations,
and assisting county staffs with special
projects that affect their counties. Areas of
responsibilities include: waste water and
residuals management, storm water management,
drinking water, solid waste, and environmental
assessment. . . .
The foregoing duties that the Area Education Extension Agent
was expected to perform, coupled with the fact that the position
was to be directly supervised by the Onslow County CED, with
further supervision from the NCCES District Extension Director and
the NCCES Director of County Operations, clearly make the Area
Education Extension Agent a State employee, as opposed to the
holder of a public office. The position of Area Education
Extension Agent was not responsible for duties which require or
permit the exercise of any portion of the sovereign power of the
State. Therefore, we hold that plaintiff, through his appointment
as Area Education Extension Agent, was an employee of the State
with a valid employment contract.
Having found that plaintiff's appointment as Area EducationExtension Agent constituted an employment contract betwe
en him and
the State, and that Prosise had actual authority to offer plaintiff
the appointment, we hold that the State has impliedly consented to
be sued for damages on the contract in the event it breaches the
contract. Therefore, defendants are not protected by the doctrine
of sovereign immunity, and the trial court did not err in denying
defendants' motion for summary judgment.
At this stage of the case, we are not concerned with the
underlying controversy between plaintiff and defendants and thus
want to emphasize that we are expressing no opinion as to whether
the State breached its employment contract with plaintiff.
However, we do hold that plaintiff was a State employee under an
authorized and valid contract and that he is not precluded from
presenting his claims against the State by the State's plea of
sovereign immunity.
Affirmed.
Judges WYNN and BIGGS concur.
*** Converted from WordPerfect ***