Appeal by plaintiff from an order entered 1 March 2002 by
Judge Peter M. McHugh in Montgomery County Superior Court and an
order entered 13 June 2003 by Judge Russell G. Walker, Jr. in
Montgomery County Superior Court. Heard in the Court of Appeals 31
Allen and Pinnix, P.A., by M. Jackson Nichols and Angela Long
Carter, for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan,
Jr., Robert D. Mason, Jr. and Alison R. Bost, for defendant-
Ruth Holroyd (plaintiff) appeals from an order entered 1
March 2002 granting summary judgment to Montgomery County, et. al.
(defendant) as to plaintiff's claim for blacklisting, and an
order entered 13 June 2003 denying monetary damages as a matter oflaw. For the reasons stated herein, we affirm the trial court's
On 19 February 1997, plaintiff was hired as a probationary
employee for a Social Worker III position by Montgomery County
Department of Social Services. Plaintiff was injured in a car
accident on the job in March of that year. Plaintiff was unable to
come to an agreement with her supervisor concerning revised working
conditions as a result of the accident and took Worker's
Compensation leave on 29 May 1997. Defendant terminated
plaintiff's employment on 31 August 1997.
Plaintiff filed a grievance for the dismissal with the Office
of Administrative Hearings on 4 December 1997. Defendant failed to
respond in a timely manner to plaintiff's discovery requests and a
default judgment was entered as a sanction against defendant on 27
May 1998. The judgment ordered defendant to reinstate plaintiff
into a comparable position to the one from which she had been
terminated, and to pay appropriate attorney fees. The order
specifically denied plaintiff's request for further damages of back
pay and reinstatement of lost benefits, however.
Defendant failed to appeal the order and initially believed it
to be an advisory opinion, rather than a final order. After
confirmation from the administrative law judge that the order was
final, defendant sent a letter to plaintiff regarding compliance
with the order on 15 January 1999.
Plaintiff filed a complaint on 21 August 2000 against
defendant, (1) requesting a writ of mandamus to enforce the order
of the administrative law judge and award damages for the delay incompliance, and (2) alleging a cause of action for blacklisting by
defendant. The trial court granted defendant's motion for summary
judgment as to the blacklisting cause of action on 26 February
2002. On 22 October 2002, the trial court issued a writ of
mandamus for enforcement of the prior order, but denied damages for
delay in compliance as a matter of law in an order issued 13 June
2003. Plaintiff now appeals from the denial of damages and the
grant of summary judgment in the respective orders.
The issues in this case are whether: (I) the trial court
erred in concluding as a matter of law that plaintiff was not
entitled to recover monetary damages for a delay in compliance in
this action for a writ of mandamus, and (II) the trial court erred
in granting defendant's motion for summary judgment for the second
cause of action of blacklisting and interference with contract. As
we find no error by the trial court, we do not reach plaintiff's
additional assignments of error as to the trial court's alternative
findings denying damages.
 Plaintiff first contends that the trial court's denial as
a matter of law of an award of monetary damages for delay in
compliance in an action for a writ of mandamus was in error. We
The issue of whether damages may be awarded to a successful
plaintiff in an action for mandamus is one of first impression
before this Court and we therefore carefully review the development
of this extraordinary remedy in reaching this conclusion. The writ of mandamus originated as a common law action. See
Tucker v. Justices of Iredell
, 46 N.C. 451, 459 (1854). At common
law, the petitioner was not permitted to deny facts alleged in the
return to a writ of mandamus, and if the return was sufficient in
law, the matter was resolved without further proceedings. See
, 46 N.C. at 459 (holding a writ of mandamus
could not be
traversed; and if the matters set forth were sufficient in law, the
defendant ha[s] judgment to go without day). As the aggrieved
party could not contradict the writ, they were permitted to recover
damages and costs from the defendant when a false return was made
by bringing a separate action on the case. Id
. In 1836, the North
Carolina General Assembly codified the writ of mandamus using
language similar to that of the English Statute of 9 Anne, ch. 20,
which had abolished the common law rule prohibiting traverse to the
writ. See State v. King
, 23 N.C. 22, 23 (1840), North Carolina
Code ch. 97, Quo Warranto
, § 5 (1836). The statute eliminated the
need for a separate action, and permitted an aggrieved party to
recover damages and costs in a case where the party could show a
traverse of any of the material facts in a return to the writ.
North Carolina Code ch. 97, Quo Warranto
, § 5, see Tucker
, 46 N.C.
The mandamus statute was amended significantly in 1872,
eliminating the early language which provided limited grounds for
damages in cases of false returns, but ensuring an expeditious
determination by the court. See
1872 N.C. Sess. Laws ch. 1234, §
3. The revised statute specified that where the plaintiff sought
relief other than enforcement of payment of a money demand, thesummons was to be made returnable, heard, and determined within ten
days by the trial court as to matters of both law and fact. Id
The revised statute provided that the matter could be held over to
the next term of court only for jury determination of factual
. The new amendments eliminated the possibility
of recovery of damages for a false return, or any other grounds.
The statute remained unchanged with regards to a writ of
mandamus for relief other than enforcement of a money judgment
until all statutory authority for the special remedy of mandamus
was repealed, effective 1 January 1970. See Fleming v. Mann
N.C. App. 418, 420, 209 S.E.2d 366, 368 (1974), 1967 N.C. Sess.
Laws ch. 954, § 4. The legislation further specified that the
repeal did not constitute a reenactment of the common law. 1967
N.C. Sess. Laws ch. 954, § 7.
In 1971, the North Carolina Supreme Court held there was no
practical difference in the results to be obtained by the common-
law remedy of mandamus and the equitable remedy of mandatory
injunction[,] and the writ of mandamus therefore remains available
as an extraordinary remedy issued by a court of competent
jurisdiction to command the performance of a specified official
duty issued by law. See Sutton v. Figgatt
, 280 N.C. 89, 92, 185
S.E.2d 97, 99 (1971).
The writ may therefore still be issued by our courts, and the
substantive grounds for granting the remedy as developed under our
former practice still control. Fleming
, 23 N.C. App. at 420, 209
S.E.2d at 368. The purpose of a writ of mandamus remains, however,a limited and extraordinary remedy to provide a swift enforcement
of a party's already established legal rights. Mandamus
lie unless the party seeking the writ has a clear legal right to
the performance of the act sought to be enforced, and the party to
be coerced is under a positive legal obligation to do what he is
asked to be made to do. See Steele v. Cotton Mills
, 231 N.C. 636,
639, 58 S.E.2d 620, 623 (1950). 'The function of [a] writ [of
mandamus] is to compel the performance of a ministerial duty -- not
to establish a legal right, but to enforce one which has been
established.' Moody v. Transylvania County
, 271 N.C. 384, 390,
156 S.E.2d 716, 720 (1967) (citations omitted).
Here, plaintiff's only remedy to enforce the legal right
created by order of the administrative law judge awarding
reinstatement of plaintiff without back pay was through a writ of
mandamus. See N.C. Dept. of Transporation v. Davenport
, 334 N.C.
428, 432 S.E.2d 303 (1993) (holding that an administrative agency
is not subject to a contempt proceeding for failure to comply with
Our courts have not, however, revived a right to damages on
any grounds since the repeal of the statutory authority for the
(See footnote 1)
As our own Rules of Appellate Procedure indicate, mandamus
is intended as a swift remedy, filed without unreasonable delayby the party seeking relief. N.C.R. App. P. 22(b). As the
underlying history of the writ demonstrates, the remedy should be
promptly sought for enforcement of the improperly denied legal
right. An award of damages for delay in compliance with the legal
duty is therefore not authorized in North Carolina in an action for
the writ of mandamus.
Further, although not controlling authority, decisions of our
sister jurisdictions provide guidance on this question of first
impression. We find that other jurisdictions which, like North
Carolina, lack specific statutory authority for award of damages in
a mandamus action have similarly determined such a right does not
exist as a matter of law.
(See footnote 2)
See Hayes v. Civ. Ser. Com'n of Metro
, 907 S.W.2d 826 (Tenn. App. 1995) (holding when the state
statute did not abrogate the common law rule, the only available
damage remedy in a mandamus action was one for making a false
return, and damages for the delay in doing the thing the mandamus
sought to command could not be sought in the mandamus action), see
also Smith v. Berryman
, 199 S.W. 165 (Mo. 1917) (holding that,
absent a false return, no damages could be recovered in an action
Therefore, we find that the trial court properly concluded
damages are not recoverable in an action for an award of a writ of
mandamus as a matter of law. As a result, we do not reachplaintiff's remaining assignments of error with regards to denial
 Plaintiff next contends the trial court erred in granting
summary judgment to defendant with regards to the second cause of
action in the complaint for blacklisting and interference with
Summary judgment is properly granted only 'if 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.' Kent v. Humphries
, 303 N.C. 675,
677, 281 S.E.2d 43, 45 (1981) (quoting N.C. Gen. Stat. § 1A-1, Rule
56(c); Caldwell v. Deese
, 288 N.C. 375, 218 S.E.2d 379 (1975)).
Blacklisting is governed by N.C. Gen. Stat. § 14-355 (2003)
which defines both the offense and an affirmative defense to the
If any person, agent, company or
corporation, after having discharged any
employee from his or its service, shall
prevent or attempt to prevent, by word or
writing of any kind, such discharged employee
from obtaining employment with any other
person, company or corporation, such person,
agent or corporation shall be guilty of a
. . . misdemeanor and . . . punished by a fine
. . . and . . . shall be liable in penal
damages to such discharged person, to be
recovered by civil action. This section shall
not be construed as prohibiting any person or
agent of any company or corporation from
furnishing in writing, upon request, any other
person, company or corporation to whom such
discharged person or employee has applied for
employment, a truthful statement of the reason
for such discharge.
The purpose of the blacklisting statute is not to prohibit
employers from communicating truthful information as to the nature
and character of former employees. See Goins v. Sargent
, 196 N.C.
478, 483, 146 S.E. 131, 133 (1929). In Friel v. Angell Care Inc.
113 N.C. App. 505, 440 S.E.2d 111 (1994), this Court interpreted §
14-355, holding that [f]or the statute to be violated . . .
statements to the prospective employer would have [to be]
, 113 N.C. App. at 511, 440 S.E.2d at 115.
When truthful oral statements were made by the defendant in
response to an inquiry from a prospective employer as to whether
they would rehire a former employee, the Friel
Court held that §
14-355 did not apply as a matter of law. Id
Here, a careful review of the record shows that defendant's
comments regarding plaintiff were made in response to inquiries by
prospective employers. Depositions submitted by plaintiff indicate
that prospective employers contacted defendant concerning
plaintiff's job applications, including a neighboring county's
department of social services. During these solicited
conversations, plaintiff alleges that defendant revealed the
pending worker's compensation claim and lawsuit. Such truthful
statements made by defendant in the course of such inquires were
privileged under § 14-355. Therefore the trial court's grant of
summary judgment was appropriate.
 Plaintiff next contends the trial court erred in granting
summary judgment on the claim of interference with contract. This
argument is not properly before the Court. '[A] defendant is
entitled to know from the complaint the character of the injury forwhich he must answer.' Walker v. Sloan
, 137 N.C. App. 387, 394-
95, 529 S.E.2d 236, 242 (2000) (quoting Thacker v. Ward
, 263 N.C.
594, 599, 140 S.E.2d 23, 28 (1965)). Failure to plead or argue a
theory of recovery before the trial court precludes the assertion
of that theory on appeal. Broyhill v. Aycock & Spence
, 102 N.C.
App. 382, 391, 402 S.E.2d 167, 173 (1991).
Plaintiff's complaint specified that plaintiff sought relief
for blacklisting under § 14-355, but failed to plead with the
required particularity a claim for interference with contract. The
elements of a tortious interference with contract action are:
(1) a valid contract between the plaintiff
and a third person which confers upon the
plaintiff a contractual right against a third
person; (2) the defendant knows of the
contract; (3) the defendant intentionally
induces the third person not to perform the
contract; (4) and in doing so acts without
justification; (5) resulting in actual damage
Beck v. City of Durham
, 154 N.C. App. 221, 232, 573 S.E.2d 183, 191
(2002) (quoting United Laboratories, Inc. v. Kuykendall
, 322 N.C.
643, 661, 370 S.E.2d 375, 387 (1988)). Plaintiff did not allege
the existence of any contractual relationship in her complaint.
For a claim of tortious interference with prospective advantage,
'[p]laintiff must show that Defendants induced a third party to
refrain from entering into a contract with Plaintiff without
justification. Additionally, Plaintiff must show that the contract
would have ensued but for Defendants' interference.' Id
(citation omitted). Plaintiff fails to allege the existence of a
contract which would have ensued but for defendant's interference.
Nor do we find that plaintiff raised this issue before the trialcourt or moved to amend her complaint to include such allegations.
As plaintiff failed to properly plead an action for tortious
interference with contract in her complaint, plaintiff's second
claim on this assignment of error is not properly before the Court
As the trial court committed no error in denying damages as a
matter of law in a writ of mandamus and in granting defendant's
motion for summary judgment as to the claim of blacklisting, we
therefore affirm both appealed orders.
Judges TIMMONS-GOODSON and McCULLOUGH concur.