Appeal by plaintiff from order entered 27 October 2003 by
Judge E. Lynn Johnson in Robeson County Superior Court. Heard in
the Court of Appeals 21 September 2004.
Barry Nakell for plaintiff-appellant.
Hedrick and Morton, by B. Danforth Morton, for defendant-
appellee Robeson County Board of Elections.
Attorney General Roy Cooper, by Special Deputy Attorney
General Susan K. Nichols, for North Carolina State Board of
Elections, defendant-appellee.
THORNBURG, Judge.
This appeal arises from the grant of summary judgment in favor
of defendants dismissing plaintiff's cause of action. For the
reasons stated herein, we affirm.
Background
Plaintiff Pearlean Revels was appointed Supervisor of
Elections for the Robeson County Board of Elections (“Robeson BOE”)
on 17 September 1991. Prior to that appointment, plaintiff had
served as Assistant Supervisor for the Robeson BOE for twelve
years. On 27 June 2002, plaintiff completed an application for
service retirement from the position of Supervisor of Elections for
Robeson County. The application indicated that plaintiff's last
day of employment would be 28 June 2002 and that her retirement
would be effective as of 1 July 2002. Also on 27 June 2002,
plaintiff completed a form entitled “Robeson County Request for
Post Retirement Employment.” On that form, plaintiff indicated
that her service would begin on 1 July 2002, and that she would
work forty hours per week. Finally, on 1 July 2002, plaintiff and
Robeson County Manager T.Y. Hester both signed a memorandum of
agreement indicating that plaintiff would be a former employee of
Robeson County, effective her retirement date of 30 June 2002, and
that Robeson County would employ plaintiff as a temporary employee
for an initial term of twelve months. Plaintiff then continued
performing the duties of Supervisor of Elections and also started
to receive retirement benefits as of 1 July 2002.
On 13 September 2002, the members of the Robeson BOE (the
“board members”) submitted a petition to the North Carolina Board
of Elections (the “State BOE”) with the heading “Petition to
Terminate Employment of Director of Elections”
(See footnote 1)
. According to thepetition, on or about 5 September 2002 the board members became
aware that plaintiff had retired from the position of Director of
the Robeson BOE. The petition also recited the board members'
opinion that plaintiff, by retiring, resigned as Director and had
not been re-appointed in accordance with N.C. Gen. Stat. . 163-
35(a). In addition, the petition noted that plaintiff had been
dismissed from her new contract with Robeson County. Accordingly,
the board members requested that the State BOE allow the Robeson
BOE to begin the process of filling the position of Director of
Elections for Robeson County in accordance with N.C. Gen. Stat. .
163-35(a). The petition also contained a request in the
alternative, which asked for the termination of plaintiff's
employment as Director of Elections for failure to adequately
perform her duties. On 17 September 2002, the State BOE met and
determined that the employment contract between plaintiff and
Robeson County was not effective to re-employ plaintiff as Director
of Elections after she had retired. Accordingly, the State BOE
concluded that plaintiff had not been Director of the Robeson BOE
since 30 June 2002 and ordered plaintiff not to appear at the
Robeson BOE office without permission of the Robeson BOE.
Plaintiff filed a complaint alleging that the Robeson and
State Boards of Elections terminated her employment in violation of
N.C. Gen. Stat. . 163-35 and requesting compensatory and punitive
damages. Plaintiff and defendants both moved for summary judgment.
Plaintiff appeals from an order entered by Judge E. Lynn Johnson
granting summary judgment in favor of defendants and dismissing the
action.
Standard of Review
Summary judgment is appropriate 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.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). The purpose of the rule is to avoid a formal trial where
only questions of law remain and where an unmistakable weakness in
a party's claim or defense exists.
Dalton v. Camp, 353 N.C. 647,
650, 548 S.E.2d 704, 707 (2001). “When considering a motion for
summary judgment, the trial judge must view the presented evidence
in a light most favorable to the nonmoving party.”
Id. at 651, 548
S.E.2d at 707 (2001). “All inferences of fact must be drawn
against the movant and in favor of the nonmovant.”
Roumillat v.
Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342
(1992).
Analysis
Plaintiff brings forth two arguments for our review. First,
plaintiff argues that the trial court erred in denying her motion
for summary judgment and in granting summary judgment for
defendants in that defendants failed to follow the procedure
required by N.C. Gen. Stat. . 163-35(b) when terminating
plaintiff's employment as Director of Elections for Robeson County.
We disagree. Plaintiff's application for retirement indicates that
her last day of employment was 28 June 2002. In her deposition,
plaintiff expressed her understanding that she had retired from her
position and then was re-employed as a contract employee of RobesonCounty. Plaintiff also agreed that she was never re-employed by
either the Robeson County or North Carolina State Board of
Elections.
Section 163-35(a) provides:
In the event a vacancy occurs in the office of
county director of elections in any of the
county boards of elections in this State, the
county board of elections shall submit the
name of the person it recommends to fill the
vacancy, in accordance with provisions
specified in this section, to the Executive
Director of the State Board of Elections who
shall issue a letter of appointment.
N.C. Gen. Stat. . 163-35(a)(2003). As plaintiff retired from the
position of Director of Elections for Robeson County and was never
re-appointed to that position under the procedure mandated by
section 163-35(a), we conclude that the Board of Elections was not
required to follow the procedure provided for in section 163-35(b)
in order to end plaintiff's employment.
See Walker v. Bd. of
Trustees of the N.C. Local Gov't Emp. Ret. Sys., 348 N.C. 63, 66,
499 S.E.2d 429, 431 (1998)(“Retirement ends employment.”). Thus,
the trial court correctly determined that defendants were entitled
to judgment as a matter of law. This assignment of error is
overruled.
Plaintiff's final argument is that defendants ratified and,
thus, should be estopped from denying plaintiff's continued
appointment as Director of Elections for Robeson County. A review
of the record on appeal does not indicate that the theories of
estoppel or ratification were before the trial court. “We are
therefore left to assume, then, that plaintiff is asking us to pass
on these theories . . . for the first time on appeal. This wecannot do.”
Henderson v. LeBauer, 101 N.C. App. 255, 264, 399
S.E.2d 142, 147 (1991),
disc. review denied, 328 N.C. 731, 404
S.E.2d 868 (1991); N.C. R. App. P. 10(b)(1)(2003). This assignment
of error is dismissed.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Footnote: 1