1. Schools and Education_teacher's contract_appeal of nonrenewal_timeliness
A teacher's appeal of the nonrenewal of her contract was not timely when it came more
than six months after notification, and summary judgment was properly granted for defendants.
N.C.G.S. § 115(c)-325(n).
2. Appeal and Error_constitutional claim_not raised below_not heard
A constitutional claim not raised in the court below was not heard on appeal.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for plaintiff-appellant.
Hogue, Hill, Jones, Nash & Lynch, by Wayne A. Bullard, for
defendant-appellees.
Tharrington Smith L.L.P., by Ann L. Majestic & Lisa Lukasik,
and North Carolina School Boards Association, by Allison B.
Schafer, for North Carolina School Boards Association, amicus
curiae.
WYNN, Judge.
Section 115C-325(n) of the North Carolina General Statutes
mandates that a probationary teacher must appeal a school board's
decision to not renew her contract within thirty days of
notification. In this case, because Plaintiff did not appeal from
the school board's nonrenewal decision until some six months after
she received the notification, we must uphold the trial court's
grant of summary judgment in favor of Defendants. The underlying facts tend to show that Plaintiff Amy Gattis
was hired as a probationary teacher at Carver Middle School for the
2002-2003 school year. At the end of the school year, the Scotland
County School Board voted not to renew her contract as a
probationary teacher. Thereafter, Freddie Williamson, Head of
Personnel for Scotland County Schools, orally informed Ms. Gattis
of the decision and on 4 June 2003, mailed a letter to her
notifying her of the Board's decision not to renew her contract.
On 28 January 2004, Ms. Gattis filed a Complaint alleging that
Defendant James M. Tapp's recommendation and the Board's decision
to not renew her contract was arbitrary and capricious and in
violation of section 115C-325(m) of the North Carolina General
Statutes. In August 2004, Defendants filed a Motion for Summary
Judgment along with supporting affidavits. From the trial court's
grant of summary judgment in favor of Defendants, Ms. Gattis
appeals.
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“[T]he standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether the
moving party is entitled to a judgment as a matter of law.”
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998). The court should grant summary judgment
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 anyparty is entitled to a judgment as a matter of law.” N.C. Gen.
Stat. § 1A-1, Rule 56(c) (2004).
Section 115C-325(n) of the North Carolina General Statutes
provides in pertinent part:
[A]ny probationary teacher whose contract is
not renewed under G.S. 115C-325(m)(2) shall
have the right to appeal from the decision of
the board to the superior court for the
superior court district or set of districts as
defined in G.S. 7A-41.1 in which the career
employee is employed. This appeal shall be
filed within a period of 30 days after
notification of the decision of the board.
N.C. Gen. Stat. § 115C-325(n) (2004). Thus, the statute mandates
that a probationary teacher must appeal a school board's decision
within thirty days of notification. See State v. Brown, 357 N.C.
382, 390, 584 S.E.2d 278, 283 (2003) (“language of Rule 609(a)
('shall be admitted') is mandatory, leaving no room for the trial
court's discretion.”), cert. denied, 540 U.S. 1194, 158 L. Ed. 2d
106 (2004).
In this case, on 4 June 2003, Mr. Williamson mailed a letter
to Ms. Gattis notifying her of the Board's decision to not renew
her contract. Before mailing the letter, he personally notified
her of the decision. Ms. Gattis did not appeal from the decision
until 28 January 2004. Since she did not appeal within the time
required by section 115C-325(n) of the North Carolina General
Statutes, her suit is barred. N.C. Gen. Stat. § 115C-325(n).
Nonetheless, Ms. Gattis cites to Spry v. Winston-Salem/Forsyth
County Bd. of Educ., 105 N.C. App. 269, 412 S.E.2d 687, aff'd per
curiam, 332 N.C. 661, 422 S.E.2d 575 (1992), arguing that thethree-year statute of limitations under section 1-52(n) of the
North Carolina General Statutes applies because there is no
statutory right to appeal the non-renewal of her contract. But
Spry was decided before the 1997 amendments to section 115C-325(n)
which created a statutory right for a probationary teacher to
appeal the non-renewal of a contract. See 1997 N.C. Sess. Laws
221. Accordingly, Spry no longer applies.
Ms. Gattis also argues that section 115C-325(n) of the North
Carolina General Statutes violated her Constitutional due process
rights because it “would be impossible for her to have established
a record from which she could even present an appeal to the
Superior Court judge for review.” But Ms. Gattis did not argue her
constitutional claim to the trial court. “It is a well settled
rule of this Court that we will not pass upon a constitutional
question unless it affirmatively appears that such question was
raised and passed upon in the court below.” Powe v. Odell, 312
N.C. 410, 416, 322 S.E.2d 762, 765 (1984); see also State v. Woods,
307 N.C. 213, 219-20, 297 S.E.2d 574, 578 (1982); City of Durham v.
Manson, 285 N.C. 741, 743, 208 S.E.2d 662, 664 (1974). Since Ms.
Gattis failed to make the constitutional argument to the trial
court, we do not address it.
Affirmed.
Judges CALABRIA and LEVINSON concur.
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