Appeal by defendant from order entered 1 March 2006 by Judge
W. Robert Bell in Caldwell County Superior Court. Heard in the
Court of Appeals 5 February 2007.
Potter Law Offices, P.A., by Steve B. Potter, for plaintiff
appellee Mark E. Bolick.
Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr., and
Robert T. Numbers, II, for defendant-appellant Caldwell
County.
MARTIN, Chief Judge.
Plaintiff, a former employee of the Caldwell County Sheriff's
Department, brought this action seeking to recover compensation forseverance pay allegedly due by reason of his involuntary separation
from employment. Defendant-appellant Caldwell County moved for
summary judgment and appeals from an order denying its motion. We
affirm.
Briefly summarized, the materials before the trial court at
the hearing on defendant's summary judgment motion tended to show
that plaintiff was first appointed a deputy sheriff in November
1992. He was subsequently reappointed after each election in 1994,
1998 and 2002. He was promoted to sergeant in 1999, and became a
shift supervisor at the jail. At no time did he sign an employment
contract with the sheriff. He was also aware that he served at the
discretion of the elected sheriff, who had the power to terminate
his employment.
In 2002, the incumbent sheriff, Roger Hutchings, was defeated
in the election by Gary Clark. Sheriff Clark retained plaintiff,
but stripped him of his rank. Captain George Marley was the jail
administrator, and reported directly to the elected sheriff.
Marley and plaintiff had been friends for several years.
Plaintiff was sworn in on 26 February 2003. He worked a
regular jail shift on 27 February 2003. During that day, a verbal
exchange occurred between plaintiff and his supervisor, Deborah
Haas, during which Haas apparently considered plaintiff to have
been insubordinate. Plaintiff also had a verbal exchange with
Captain Marley, who informed plaintiff that he would be transferred
to the night shift. On 3 March 2003, Marley terminated plaintiff's
employment. Though plaintiff was subsequently offered theopportunity to return to work, he declined since he had secured
another position in law enforcement in Watauga County.
Plaintiff sought severance pay under the provisions of Article
VII, Section 10 of the Caldwell County Personnel Policy, which
states in relevant part:
No Caldwell County employee shall be
terminated except for cause, as “cause” is
defined in Article VII, Section 5, of the
Caldwell County Personnel Ordinance.
Provided, however, that the County Manager and
the Clerk to the Board of Commissioners, who
serve at the pleasure of the Board of County
Commissioners, and the employees of the
Sheriff and Register of Deeds, who serve at
the pleasure of those elected officials, may
be terminated without cause. In the event that
any Caldwell County employee, including the
County Manager, the Clerk of the Board of
Commissioners and employees of the Sheriff and
the Register of Deeds, is determined to have
been terminated without cause, such terminated
employee shall be paid 6 months of his/her
annual salary as severance pay.
This policy was in effect as a county ordinance.
[1] The order denying defendants' motion for summary judgment
is interlocutory. As a general rule, such orders are not
immediately appealable unless a substantial right of one of the
parties would be affected if the appeal is delayed until a final
judgment. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 164,
265 S.E.2d 240, 244 (1980). However, this Court has repeatedly
held that appeals raising issues of governmental or sovereign
immunity affect a substantial right sufficient to warrant immediate
appellate review. See, e.g., Derwort v. Polk County, 129 N.C. App.789, 792, 501 S.E.2d 379, 381 (1998), Hedrick v. Rains, 121 N.C.
App. 466, 466 S.E.2d 281, aff'd, 344 N.C. 729, 477 S.E.2d 171
(1996). “We allow interlocutory appeals in these situations
because 'the essence of absolute immunity is its possessor's
entitlement not to have to answer for his conduct in a civil
damages action.'” Epps v. Duke University, Inc., 122 N.C. App.
198, 201, 468 S.E.2d 846, 849 (1996). Therefore, to the extent
defendant's appeal is based on an affirmative defense of immunity,
this appeal is properly before us. Price v. Davis, 132 N.C. App.
556, 558-59, 512 S.E.2d 783, 785-86 (1999).
However, as to the
remainder of defendants' contentions with respect to the denial of
summary judgment, defendants have not demonstrated that any
substantial right would be affected absent immediate review and,
therefore, we dismiss their arguments as interlocutory as there is
generally no right of appeal from an order denying summary
judgment. Hill v. Smith, 38 N.C. App. 625, 626, 248 S.E.2d 455,
456 (1978).
“[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 burden is upon the moving party to
show that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1,Rule 56(c) (2006); Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d
363, 366 (1982).
We review a trial court's order for summary judgment de novo
to determine whether there is a “genuine issue of material fact”
and whether either party is “entitled to judgment as a matter of
law.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249
(2003).
[2] Defendant first argues that it is entitled to summary
judgment on the grounds of sovereign immunity because plaintiff's
complaint fails to allege that Caldwell County waived its
governmental immunity. The State and its constituting counties
have traditionally enjoyed complete immunity from being sued in
court.
Smith v. State, 289 N.C. 303, 309-10, 222 S.E.2d 412, 417
(1976). However, this immunity is not unrestricted. Our Supreme
Court has noted that our jurisprudence has long reflected “a
respect for the sanctity of private and public obligations.”
Bailey v. State, 348 N.C. 130, 142, 500 S.E.2d 54, 61 (1998).
Indeed, scholars have credited our Supreme Court with being the
first state or federal tribunal to interpret the phrase “due
process” as a protection of private rights against the lawmaking
power of the legislature.
Id.
In the contractual context, our Supreme Court has specifically
abolished state sovereign immunity.
Smith, 289 N.C. at 320-21, 222
S.E.2d at 424. Plaintiff argues that his claim against defendant
is of a contractual nature. If correct, the abrogation ofsovereign immunity for contractual disputes would mean that the
plaintiff is under no requirement to plead a waiver of sovereign
immunity. Indeed, defendant could not waive an immunity that it
did not possess. This Court has specifically held that the
complaint of a plaintiff who alleged the existence and breach of a
contract could not be dismissed on the basis of its failure to
explicitly plead a waiver of sovereign immunity.
Toomer v.
Garrett, 155 N.C. App. 463, 482 574 S.E.2d 76, 92 (2002).
While it is true that a
quantum-meruit contract is not
sufficient to support a waiver of sovereign immunity,
Paul L.
Whitfield, P.A. v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414
(1998), this is not such a case. We have previously held that
analogous claims for benefits are contractual.
Simpson v.
Government Emp. Retire. Sys., 88 N.C. App. 218, 223, 363 S.E.2d 90,
93 (1987)(“[W]e... hold that the relationship between plaintiffs
and the Retirement System is one of contract.”). In determining
whether the plaintiff's claim is of a contractual nature, the most
apposite case is
Pritchard v. Elizabeth City, 81 N.C. App. 543, 344
S.E.2d 821,
disc. rev. denied, 318 N.C. 417, 349 S.E.2d 598 (1986).
Our Supreme Court subsequently cited
Pritchard with approval,
noting that there, “the Court of Appeals held that oral
representations to municipal employees by city officials regarding
accrual of benefits, upon which the employees relied, constituted
a contractual agreement to which the city was bound.”
Bailey, 348
N.C. at 144, 500 S.E.2d at 62. Applying this law to the case before us, the record shows that
Section 10 of the Caldwell County Personnel Ordinance, as in effect
at the time of plaintiff's employment, provided that any Caldwell
County Employee dismissed without cause would be entitled to
severance pay. If oral representation regarding accrual of
benefits could constitute a contractual agreement, a county
ordinance would present a much stronger argument. Indeed, our
Supreme Court has spoken specifically to this, noting:
[I]t is a matter of established law that a
legislative enactment in the ordinary form of
a statute may contain provisions which, when
accepted as the basis of action by individuals
or corporations, become contracts between them
and the State within the protection of the
clause of the Federal Constitution forbidding
impairment of contract obligations; rights may
accrue under a statute or even be conferred by
it, of such character as to be regarded as
contractual, and such rights cannot be
defeated by subsequent legislation.
Ogelsby v. Adams, 268 N.C. 272, 273-74, 150 S.E.2d 383, 385 (1966).
We believe the nature of the ordinance at issue here turns this
action into one based on contract, and pleading a waiver of
sovereign immunity is not necessary. “When the state comes into
its courts seeking their aid in annulling a contract, it is
governed, in general, by the same rules as the citizen.”
Blount v.
Spencer, 114 N.C. 770, 772, 19 S.E. 93, 96 (1894). Thus,
plaintiff's action is not barred by sovereign immunity.
[3] Defendant next argues that the Caldwell County Ordinance
could confer no benefits upon plaintiff because the policy was not
expressly included in any employment contract. We cannot agree.
At the outset, we note that virtually all authority cited bydefendant in support of its argument concerns wrongful discharge
claims, and not a claim for benefits conferred upon termination of
employment as is the case here. The concern in wrongful discharge
cases centered on the potential judicial infringement on our
traditional employment-at-will doctrine. That is not the issue
here. Thus, we find those cases inapposite.
See e.g.
Paschal v.
Myers, 129 N.C. App. 23, 28-29, 497 S.E.2d 311, 315 (1998)(adoption
of Handbook as an ordinance insufficient to overcome presumption of
at-will employment where plaintiff could not show receipt of
Handbook or an understanding of its contents; however, ordinance
sufficient to create enforceable property interest in continued
employment);
Black v. Western Carolina Univ., 109 N.C. App. 209,
214, 426 S.E.2d 733, 736 (1993)(provisions of university code were
not incorporated into professor's employment contract, where
neither contract nor professor's employee handbook expressly
incorporated code, and provisions of contract mentioning code were
not marked to indicate that they had become part of contract);
Howell v. Town of Carolina Beach, 106 N.C. App. 410, 415, 417
S.E.2d 277, 280 (1992)(in breach of contract claim for wrongful
discharge, no evidence that employee could only be discharged “for
cause”)
.
The outcome of cases seeking severance pay rather than
employment as of right has been different. In a case dealing with
a severance pay provision similar to the instant case, we held the
following:
In its affidavit in support of its motion for
summary judgment, defendant has admittedplaintiff's employment in a management
position and admitted that it had in effect a
termination allowance applicable to management
employees....
Such an employment contract
provision, recognizably cancellable at will by
an employer, would nevertheless operate to
protect employees within its coverage during
their employment and during the effective
operation of such a provision.
Brooks v. Carolina Tel. & Tel. Co., 56 N.C. App. 801, 804, 290
S.E.2d 370, 372 (1982)(emphasis added).
See also Pritchard,
81
N.C. App. at 543, 344 S.E.2d at 821 (oral promise of benefits by
county officials to employees sufficient to vest rights in the
benefits). We have previously held that employees have contractual
rights to benefits already earned.
See Simpson, 88 N.C. App. at
223-24, 363 S.E.2d at 94 (citing
Insurance Co. v. Johnson, Comm'r
of Revenue, 257 N.C. 367, 126 S.E.2d 92 (1962))(“If a pension is
but deferred compensation, already in effect earned, merely
transubstantiated over time into a retirement allowance, then an
employee has contractual rights to it. The agreement to defer the
compensation is the contract. Fundamental fairness also dictates
this result.”)
Therefore, we distinguish between wrongful
termination claims and those seeking compensation allegedly due
under a contract.
[4] Next, defendant argues that the Caldwell County Personnel
Ordinance does not apply to plaintiff as it only covers employees,
and not deputy sheriffs. Defendants cite
Styers v. Forsyth County
212 N.C. 558, 560, 194 S.E. 305, 306 (1937) as authority for their
argument that, by law, deputy sheriffs are not employees. The
comparison between
Styers and this case is inapposite.
Styers,
aWorkers Compensation Act case, dealt with the difference between
“fee deputies”, then employed by Forsyth County, and “salaried
deputies.”
Id. at 565, 194 S.E. at 309. (“Whether this
responsibility has been shifted to the county in the case of
salaried deputies, we make no decision, as the question is not
presently before us.”) In this case, the Caldwell County Personnel
Ordinance refers by its terms to “any Caldwell County employee.”
Plaintiff was routinely referred to as an employee.
See, e.g.
“Caldwell County Employee Status Change Form.” This argument is
also rejected.
The defendant has briefed two other arguments. However, these
pertain to factual determinations rather than the denial of
sovereign immunity. As to these, defendants have failed to meet
their burden of identifying a substantial right which would be
affected were this Court to decline review of the remaining grounds
in the instant appeal.
See Flitt v. Flitt, 149 N.C. App. 475, 477,
561 S.E.2d 511, 513 (2002) (noting that“moving party must show that
the affected right is a substantial one, and that deprivation of
that right, if not corrected before appeal from final judgment,
will potentially injure the moving party”). Therefore, the
remaining grounds of the appeal are not properly before us, and
must be dismissed as interlocutory.
The order denying summary judgment is affirmed, and the case
remanded back to the superior court for further proceedings
consistent with this opinion.
Affirmed in part, dismissed in part, and remanded. Judges HUNTER and STROUD concur.
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