Brown v. Miller
| Decision Date | 07 June 2011 |
| Docket Number | No. COA10–315.,COA10–315. |
| Citation | 714 S.E.2d 154,17 Wage & Hour Cas.2d (BNA) 1641 |
| Parties | Lloyd G. BROWN, Nancy L. Blackwood, Chad Brandon, Richard C. Cockerham, Carolyn M. Dawson, Trent William Duncan, Roger J. Hart, Lisa Hartrick, Kevin Harvell, Alan W. Hill, Adam Huffman, Chris Liv, John McRae McBryde, Roger V. Miller, Ronald J. Myers, Jr., William Pickens, William S. Powell, Laura Prevatte, Dennis K. Register, Joseph Swartz, Sara Ellis Thompson, Eric P. Welker, Stephen L. Williams, David Amaral, Jody Brady, Richard Chellberg, Gary M. Curcio, Shane Hardee, James M. Hendricks, William R. Hildreth, John P. Howard, Anthony Russell Meadows, James Schlenker, Peter C. Steponkus, on behalf of themselves and all others similarly situated, Plaintiffs,v.NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, an agency of The State of North Carolina; Dee Freeman, Secretary of the North Carolina Department of Environment and Natural Resources, in his official capacity; and the State of North Carolina, Defendants. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by plaintiffs from order entered 30 November 2009 by Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 29 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General Scott A. Conklin and Assistant Attorney General Ward Zimmerman, for the State.
Elliot Pishko Morgan, P.A., Winston–Salem, by Robert M. Elliot, for plaintiff-appellants.
Where the State has conferred a right to overtime compensation to state foresters under North Carolina General Statutes, section 113–56.1, the State has waived its sovereign immunity, and we reverse the trial court's dismissal of plaintiffs' claim for overtime compensation pursuant to Rule 12(b)(1). Further, where N.C. Gen.Stat. § 143–300.35(a) authorizes the maintenance of a separate action in the trial division of the General Courts of Justice for claims brought by state employees against state agencies under the Fair Labor Standards Act, we reverse the trial court's dismissal of plaintiffs' claims.
Pursuant to the allegations of the complaint, each named plaintiff is a resident of North Carolina, employed as a forester in the Division of Forest Resources, a division of the North Carolina Department of Environment and Natural Resources (NCDENR). On 1 December 2008, plaintiffs instituted a class action complaint on behalf of themselves and a proposed class of “professional” employees of the NCDENR, alleging violations of state and federal wage and hour laws, naming as defendants NCDENR, NCDENR Secretary Dee Freeman, and the State. Plaintiffs sought overtime compensation (1) for all hours worked in fighting forest fires pursuant to N.C. Gen.Stat. § 113–56.1; (2) for firefighting and other disaster relief work under the Fair Labor and Standards Act (FLSA), 29 U.S.C. § 201 et seq. ; and (3) for their regular duties under the FLSA. In lieu of an answer, defendants filed a motion to dismiss pursuant to Rule 12(b)(1), 12(b)(2), and 12(b)(6) alleging sovereign immunity, failure to state a claim upon which relief can be granted, and failure to exhaust administrative remedies. Memoranda were submitted in support of their respective positions. On 20 November 2009, following a 6 November 2009 hearing, the trial court entered an order which granted defendants' motion to dismiss plaintiffs' complaint: plaintiffs' first claim for compensation, under N.C.G.S. § 113–56.1, was dismissed pursuant to Rule 12(b)(1), on grounds of sovereign immunity; plaintiffs' second and third claims were dismissed pursuant to Rules 12(b)(1) and 12(b)(6), for, respectively, failure to exhaust administrative remedies and failure to state a claim under the FLSA for which relief could be granted. Plaintiffs appeal.
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On appeal, plaintiffs argue the trial court erred in dismissing their action for overtime compensation where (I) the State waived its sovereign immunity; (II) plaintiffs are not exempt from the FLSA; and (III) plaintiffs are not required to exhaust administrative remedies.
Plaintiffs argue that the trial court erred in dismissing their claim for overtime compensation pursuant to Rule 12(b)(1), by ruling that the court lacked jurisdiction based on the doctrine of sovereign immunity. Plaintiffs contend the State waived its sovereign immunity by conferring rights to overtime compensation on state foresters under N.C.G.S. § 113–56.1. We agree.
We review a trial court's dismissal of a claim pursuant to Civil Procedure Rule 12(b)(1) de novo. Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007) (citations omitted). And, in so doing, we may consider matters outside the pleadings. Id.
“It is an established principle of jurisprudence, resting on grounds of sound public policy, that a state may not be sued in its own courts or elsewhere unless by statute it has consented to be sued or has otherwise waived its immunity from suit.” Smith v. Hefner, 235 N.C. 1, 6, 68 S.E.2d 783, 787 (1952) (citations omitted). “ ‘By application of this principle, a subordinate division of the state, or agency exercising statutory governmental functions ... may be sued only when and as authorized by statute.’ ” N.C. Ins. Guar. Asssn. v. Bd. of Trs. of Guilford Technical Cmty. Coll., 364 N.C. 102, 107, 691 S.E.2d 694, 697 (2010) (quoting Smith v. Hefner, 235 N.C. 1, 6, 68 S.E.2d 783, 787 (1952)). Such a waiver may not be lightly inferred, “and statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed.” Battle Ridge Cos. v. N.C. Dep't of Transp., 161 N.C.App. 156, 157, 587 S.E.2d 426, 427 (2003) (quoting Guthrie v. State Ports Auth., 307 N.C. 522, 537–8, 299 S.E.2d 618, 627 (1983)); see, e.g., N.C. Ins. Guar. Asssn v. Bd. of Trs. of Guilford Technical Cmty. Coll., 364 N.C. 102, 104, 691 S.E.2d 694, 695 (2010) () ” Sanders v. State Pers. Comm'n, 183 N.C.App. 15, 19, 644 S.E.2d 10, 13 (2007) (quoting Fabrikant v. Currituck Cnty., 174 N.C.App. 30, 38, 621 S.E.2d 19, 25 (2005) (citations omitted)).
Our Supreme Court, in addressing whether the State was immune from suit in a breach of contract action brought by an employee of a state agency, held “that whenever the State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.” Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 423 (1976).
(1) To deny the party who has performed his obligation under a contract the right to sue the state when it defaults is to take his property without compensation and thus to deny him due process; (2) To hold that the state may arbitrarily avoid its obligation under a contract after having induced the other party to change his position or to expend time and money in the performance of his obligations, or in preparing to perform them, would be judicial sanction of the highest type of governmental tyranny; (3) To attribute to the General Assembly the intent to retain to the state the right, should expedience seem to make it desirable, to breach its obligation at the expense of its citizens imputes to that body “bad faith and shoddiness” foreign to a democratic government; (4) A citizen's petition to the legislature for relief from the state's breach of contract is an unsatisfactory and frequently a totally inadequate remedy for an injured party; and (5) The courts are a proper forum in which claims against the state may be presented and decided upon known principles.
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Thus, in this case, and in causes of action on contract arising after the filing date of this opinion, 2 March 1976, the doctrine of sovereign immunity will not be a defense to the State.
Id. at 320, 222 S.E.2d at 423–4.
As to its contract, the State should be held to the same rules and principles of construction and application of contract provisions as govern private persons and corporations in contracting with each other. But ... a contract of the State must ordinarily rest upon some legislative enactment and in this respect is distinguished from contracts with individuals ... Unless there is an appropriation, courts have no power to enforce a contract of a state, even though they do not doubt its validity.
Id. at 310–11, 222 S.E.2d at 417–8 (internal citations omitted).
In Hubbard v. County of Cumberland, 143 N.C.App. 149, 150–1, 544 S.E.2d 587, 589 (2001), the plaintiffs, deputy sheriffs, alleged that the County failed to comply with its statutory duties in the administration of the Sheriff's Department longevity pay plan such that the plaintiffs were wrongfully deprived of compensation. The defendant County's motion for summary judgment was denied. On appeal, the appellant-defendant County argued that it was immune from suit because no statute waived its right to sovereign immunity nor had it otherwise consented to the action. Id. at 151, 544 S.E.2d at 589. This Court reasoned that where the County had statutorily committed itself to provide salaries to deputy sheriffs and those salaries served as the consideration necessary for the deputy sheriffs' employment contracts, the County, after having availed itself of the law enforcement officers' services, was prohibited from using sovereign immunity as a defense to its statutory obligation and contractual commitment. Id. at 153–4, 544 S.E.2d at 590.
In the instant case, plaintiffs allege that at all times relevant to this action, each plaintiff and putative class member “has been employed as a forester in the ...
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