Bolick v. County of Caldwell

• Decision Date: 06 March 2007
• Docket Number: No. COA06-693.,COA06-693.
• Citation: Bolick v. County of Caldwell, 641 S.E.2d 386, 182 N.C. App. 95 (N.C. App. 2007)
• Parties: Mark E. BOLICK, Plaintiff-Appellee v. COUNTY OF CALDWELL, Defendant-Appellant.
• Court: North Carolina Court of Appeals

641 S.E.2d 386

Mark E. BOLICK, Plaintiff-Appellee v. COUNTY OF CALDWELL, Defendant-Appellant.

No. COA06-693.

Court of Appeals of North Carolina.

March 6, 2007.

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, Lenoir, for plaintiff appellee Mark E. Bolick.

Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr., and Robert T. Numbers, II, Winston-Salem, 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 for severance 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 the opportunity 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.

Interlocutory Appeal

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).

Standard of Review

"[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).

Analysis

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 of sovereign 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. 462, 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.

Defendant next argues that...