Appeal by plaintiff from an order entered 11 October 2006 by
Judge Donald Stephens in Wake County Superior Court. Heard in the
Court of Appeals 11 October 2007.
Thomas Hicks & Associates, PLLC, by Thomas S. Hicks, for
Tharrington Smith, L.L.P., by Jonathan A. Blumberg and Deborah
A. Stagner, for defendant-appellee.
Vonnie Monroe Hicks, III (plaintiff) appeals from an order
entered 11 October 2006 granting summary judgment in favor of the
Wake County Board of Education (defendant). For the reasons stated
herein, we affirm the order of the trial court.
In August of 1999, plaintiff was hired to teach at Enloe High
School in the Wake County Public School System (WCPSS). Plaintiff
previously taught at a variety of public and private schools in
both North Carolina and California. As part of the hiring process,
plaintiff submitted a written application to WCPSS Human Resources,
to which he attached a multi-page resume. While plaintiff's resume
states he taught in Winston-Salem/Forsyth County schools from 1984
through 1996, his application form indicates he was a teacher there
from 1994 through 1996. The WCPSS application form also contains
the questions Have you ever received tenure in another school
system? and If so, when and where? Plaintiff left both
questions blank. Plaintiff knew that he had previously obtained
career status in a North Carolina school system, but he did not
reveal this information during the application and hiring process
Plaintiff was aware by the summer of 2001 that he should have
received career status in WCPSS. In December 2002, plaintiff
received an e-mail from a secretary at his school asking if 2003
was his tenure year. Plaintiff replied that he thought this had
already happened, but that I am easy - just want to get it right.
In the Spring of 2003, near the end of plaintiff's fourth year
at Enloe High School, plaintiff was informed by an assistant
principal that he would be observed frequently because he was in
his tenure year. Again, plaintiff responded that he thought he
already had tenure. On 2 April 2003, plaintiff sent a memorandum
to Enloe High School's administration stating, in pertinent part,that he was concerned to hear once again that he was considered
a probationary teacher and that he preferred teaching at Enloe to
receiving two years of monthly salary cheques for not doing so.
The Wake County Board of Education subsequently voted to grant
plaintiff career status as a teacher in WCPSS, and plaintiff was
notified of this decision by letter dated 27 May 2003. Plaintiff
admits that he has received his full salary from WCPSS and was not
On 15 June 2005, plaintiff filed a complaint in Wake County
Superior Court alleging claims for a declaratory judgment as to his
rights under N.C. Gen. Stat. § 115C-325 and for breach of contract.
Defendant filed an answer on 19 August 2005, raising, inter alia
the affirmative defenses of estoppel and a two-year statute of
limitations applicable to contract claims against school boards.
Defendant filed a motion for summary judgment on 22 June 2006, once
again raising, inter alia
, the affirmative defenses of estoppel and
a two-year statute of limitations applicable to contract claims
against school boards pursuant to N.C. Gen. Stat. § 1-53(1).
Plaintiff filed a response to the motion for summary judgment on 28
September 2006. On 11 October 2006, the trial court entered an
order granting summary judgment based upon the two-year statute of
limitations and the doctrine of estoppel. Plaintiff appeals.
Plaintiff raises the issues of whether the trial court erred
by granting summary judgment in favor of defendant based upon: (I)plaintiff's claim being barred by a two-year statute of limitations
as his right to bring this action accrued on 16 June 2001; and (II)
the doctrine of estoppel.
Standard of Review
Under Rule 56(c) of the North Carolina Rules of Civil
Procedure, summary judgment shall be rendered forthwith 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) (2005). 'The burden is upon the moving party to
show that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law.'
Esposito v. Talbert & Bright, Inc.
, 181 N.C. App. 742, 744, 641
S.E.2d 695, 696 (2007) (quoting McGuire v. Draughon
, 170 N.C. App.
422, 424, 612 S.E.2d 428, 430 (2005)). One means by which the
moving party may meet its burden is by showing the opposing party
'cannot surmount an affirmative defense which would bar the
(quoting Collingwood v. Gen. Elec. Real Estate
, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). On
appeal, this Court reviews an order granting summary judgment de
at 744, 641 S.E.2d at 697 (citing McCutchen v.
, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006)).
Plaintiff first argues the trial court erred in applying the
wrong statute of limitations to his claim for declaratory judgmentand in holding this claim was barred by this statute of
limitations. Plaintiff concedes that the trial court did not err
in granting summary judgment as to his claim for relief for breach
of contract. We agree that the trial court applied the wrong
statute of limitations to his claim for declaratory judgment;
however, even using the correct statute of limitations, plaintiff
is still barred from bringing his claim.
Plaintiff's claim for declaratory judgment is founded upon the
requirements set forth in N.C. Gen. Stat. § 115C-325, the
applicable version of which provided:
Employment of a Career Teacher. -- A teacher
who has obtained career status in any North
Carolina public school system need not serve
another probationary period of more than two
years. The board may grant career status
immediately upon employing the teacher, or
after the first or second year of employment.
If a majority of the board votes against
granting career status, the teacher shall not
teach beyond the current term. If after two
years of employment, the board fails to vote
on the issue of granting career status:
a. It shall not reemploy [sic] the
teacher for a second consecutive
b. As of June 16, the teacher shall
be entitled to one month's pay as
compensation for the board's failure
to vote upon the issue of granting
career status; and
c. The teacher shall be entitled to
one additional month's pay for every
30 days beyond June 16 that the
board fails to vote upon the issue
of granting career status.
N.C. Gen. Stat. § 115C-325(c)(2) (2001). The trial court held plaintiff's claim was barred by a two-
year statute of limitations pursuant to N.C. Gen. Stat. § 1-53(1)
(2005) (stating a plaintiff must file an action within two years
when the claim is against a local unit of government upon a
contract, obligation or liability arising out of a contract,
express or implied). Plaintiff's claim for declaratory judgment
is not based upon any contract with defendant, but rather is based
on a liability created by statute and thus a three-year statute of
limitations applies. N.C. Gen. Stat. § 1-52(2) (2005) (stating a
plaintiff must file an action within three years when the claim is
[u]pon a liability created by statute); see also Rose v.
Currituck County Bd. of Educ.
, 83 N.C. App. 408, 411-12, 350 S.E.2d
376, 378-79 (1986) (holding the applicable statute of limitations
for a claim brought under N.C.G.S. 115C-325 is the three-year
statute in N.C.G.S. 1-52(2)). However, plaintiff's claim for
declaratory judgment is still barred by the three-year statute of
limitations as the trial court did not err in finding plaintiff's
right to bring this claim arose on 16 June 2001.
Defendant hired plaintiff as a teacher in August of 1999 and
because plaintiff had obtained career status in the Winston-
Salem/Forsyth public school system, defendant was required to vote
on plaintiff's career status by 15 June 2001. N.C.G.S. § 115C-
325(c)(2) (2001). Defendant did not vote on plaintiff's career
status by 15 June 2001 and the consequences for its failure to do
so, including plaintiff's right to sue, began on 16 June 2001.
; Williams v. Blue Cross Blue Shield of N.C.
, 357 N.C. 170, 178-79, 581 S.E.2d 415, 423 (2003) (a cause of action accrues as soon
as the right to institute and maintain a suit arises). Plaintiff
argues, however, that defendant's failure to vote on his career
status constitutes a continuing wrong or continuing violation
tolling the statute of limitations.
Our Supreme Court has recognized the 'continuing wrong' or
'continuing violation' doctrine as an exception to the general
, 357 N.C. at 179, 581 S.E.2d at 423 (citing
Faulkenbury v. Teachers' & State Employees' Ret. Sys.
, 345 N.C.
683, 694-95, 483 S.E.2d 422, 429-30 (1997)). When this doctrine
applies, a statute of limitations does not begin to run until the
violative act ceases. Id.
(citations and quotations omitted). To
determine whether plaintiff is subject to a continuing violation,
we examine [the] case under a test that
considers the particular policies of the
statute of limitations in question, as well as
the nature of the wrongful conduct and harm
alleged . . . . In particular, we must examine
the wrong alleged by [plaintiff] to determine
if the purported violation is the result of
continual unlawful acts, each of which
restarts the running of the statute of
limitations, or if the alleged wrong is
instead merely the continual ill effects from
an original violation.
(internal citations and quotations omitted).
Defendant contends that because N.C.G.S. § 115C-325(c)(2)(c)
provides that a teacher is entitled to an additional month's pay
every thirty days that a school board fails to vote upon the issue
of granting the teacher's career status, each month a school board
fails to vote constitutes a new and continuing wrong against
plaintiff. We disagree. N.C. Gen. Stat. § 115C-325(c)(2)(c) provides a mechanism for
calculating the amount of a school board's liability for failing to
timely vote on a teacher's career status. There is no statutory
requirement that a school board must consider a teacher's career
status once each month following the original 15 June deadline.
Rather, a teacher's entitlement to an additional month's pay for
every thirty days that a school board fails to vote upon the issue
of granting the teacher's career status is a continual ill effect
from the original violation. Therefore, plaintiff's right to bring
his claim under N.C.G.S. § 115C-325(c)(2) arose on 16 June 2001.
Plaintiff did not file his complaint until 15 June 2005 and his
claim is barred by the three-year statute of limitations. This
assignment of error is overruled.
In light of our ruling on this assignment of error, we need
not address plaintiff's remaining argument.
Judges STEELMAN and GEER concur.
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