Corum v. University of North Carolina

• Decision Date: 20 March 1990
• Docket Number: No. 8924SC120,8924SC120
• Citation: 97 N.C.App. 527,389 S.E.2d 596
• Court: North Carolina Court of Appeals
• Parties: , 59 Ed. Law Rep. 224 Dr. Alvis L. CORUM, Plaintiff-Appellee, v. UNIVERSITY OF NORTH CAROLINA through its Board of Governors; C.D. Spangler, President of the University of North Carolina in his official capacity; Appalachian State University; and John Thomas, Chancellor of Appalachian State University, and Harvey Durham, Defendants.

Page 596

389 S.E.2d 596

97 N.C.App. 527, 59 Ed. Law Rep. 224

Dr. Alvis L. CORUM, Plaintiff-Appellee, v. UNIVERSITY OF NORTH CAROLINA through its Board of Governors C.D. Spangler, President of the University of North Carolina in his official capacity; Appalachian State University; and John Thomas, Chancellor of Appalachian State University, and Harvey Durham, Defendants.

No. 8924SC120.

Court of Appeals of North Carolina.

March 20, 1990.

Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A. by John W. Gresham, Charlotte, for plaintiff-appellee.

Attorney General Lacy H. Thornburg by Asst. Attys. Gen. Laura E. Crumpler and Thomas J. Ziko, Raleigh, for defendants-appellants.

JOHNSON, Judge.

Viewing the evidence in the light most favorable to plaintiff (the nonmoving party) as we are required to do, the evidence tends to show the following: For approximately fourteen years prior to June of 1984, plaintiff, Dr. Alvis Corum, held the position of Dean of Learning Resources at Appalachian State University ("ASU"). His duties included supervision of a diversified collection of books, manuscripts, and artifacts known as the Appalachian Collection (the "Collection"). In 1983, various ASU administrators began discussing the possibility of relocating the Collection from its present location in Dougherty Library because of the need to use that space for other purposes. The move was the subject of faculty debate and received attention in the campus newspaper. ASU Vice Chancellor for Academic Affairs Harvey Durham, a defendant in this action, was ultimately responsible for deciding where the Collection would be housed. Plaintiff, along with some other persons involved, felt strongly that the Collection should not be split in two, with the artifacts being separated from the written materials. He expressed this view to defendant Durham on occasion. During a meeting on 21 June 1984, defendant Durham informed plaintiff that the Collection would be moved immediately to University Hall and that responsibility for the Collection would be transferred to another department.

Plaintiff accepted the decision and set up a meeting, as requested by defendant Durham, to work out details of the move. This meeting, which occurred on 25 June, was attended by plaintiff, two ASU librarians and Dr. Clinton Parker, Associate Vice Chancellor of Academic Affairs who attended as defendant Durham's representative.

Dr. Parker announced at the meeting that the artifacts and written materials would be moved to two separate ASU locations. The next day a second meeting was held. Exactly what took place at this meeting is somewhat in dispute. It appears, however, that plaintiff proposed an alternative relocation plan in which the entire Collection would be housed in one location. Dr. Parker stated that he did not have the authority to entertain an alternative proposal, but agreed to relay the plan to defendant Durham.

Dr. Parker relayed the proposal to defendant Durham by telephone that evening. The following morning defendant Durham removed plaintiff from his position as Dean of Learning Resources. Plaintiff retained his position as a tenured faculty member.

Before turning to the merits of this case, we are obliged to address a threshold issue not raised in the briefs of either party, namely, the appealability of the denial of a summary judgment motion. Generally, the denial of summary judgment does not affect a substantial right and is not appealable. Hill v. Smith, 38 N.C.App. 625, 248 S.E.2d 455 (1978); Oil Co. v. Smith, 34 N.C.App. 324, 237 S.E.2d 882 (1977). In the instant case, however, we hold that the denial of summary judgment affected a substantial right and is subject to review. We reach this conclusion in light of the holding of the United States Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), a case in which the defendant federal official's summary judgment motions, on the grounds of absolute and qualified immunity, had been denied in District court. In Mitchell, the Supreme Court held that "denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." 472 U.S. at 525, 105 S.Ct. at 2815, 86 L.Ed.2d at 424 (citations omitted). Similarly, the Court concluded that denial of a public official's claim of qualified immunity from suit, to the extent that it turns on the legal questions of whether the conduct complained of violated "clearly established law" (a standard set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)), is also appealable as a "final decision" within the meaning of 28 U.S.C. sec. 1291. In so holding, the Court stated that

entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court's decision is effectively unreviewable on appeal from a final judgment.

An appealable interlocutory decision must satisfy two additional criteria: it must "conclusively determine the disputed question," Coopers & Lybrand v. Livesay, 437 US 463, 468, 57 LEd2d 351, 98 S.Ct. 2454 [2457] (1978), and that question must involve a "clai[m] of right separable from, and collateral to, rights asserted in the action," [Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 93 L.Ed. 1528, 69 S.Ct. 1221, 1225 (1949).] The denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements.

472 U.S. at 526-27, 105 S.Ct. at 2815-16, 86 L.Ed.2d at 425-26.

In the case sub judice, the defendants advance a substantial claim of absolute immunity as well as qualified immunity as grounds for their summary judgment motion. Further, the qualified immunity argument turns on the issue of whether "clearly established law" has been violated. Harlow, supra. In accord with Mitchell v. Forsyth, these contentions, if successful, entitle defendants to "immunity from suit rather than a mere defense to liability." Mitchell, supra. They could not, therefore, be vindicated after a trial and are appealable at this stage. We do not find it distinguishable that the defendants in the instant case are asserting state rather than federal immunities. We therefore hold that denial of defendants' summary judgment motion on the grounds of sovereign and qualified immunity is immediately appealable.

We first address defendants' assignment of error that the trial court erred in denying their summary judgment motion on grounds of sovereign immunity. Plaintiff's complaint alleges that defendants violated 42 U.S.C. sec. 1983 and that they violated plaintiff's right to freedom of speech as guaranteed by the North Carolina Constitution. In addition to defendants UNC and ASU, named in plaintiff's complaint, defendant Spangler has been sued in his official capacity only, while defendants Thomas and Durham have been sued in both their official and individual capacities.

We find that many of the issues raised in this assignment of error have previously been addressed by this Court in Truesdale v. University of North Carolina, 91 N.C.App. 186, 371 S.E.2d 503 (1988), disc. rev. denied, 323 N.C. 706, 377 S.E.2d 229 (1989), and we are bound by the holding of Truesdale.

The doctrine of sovereign immunity prevents the State or its agencies from being sued without its consent. Id. The Truesdale Court observed that G.S. sec. 116-3 allows UNC and its constituent institutions to sue and be sued, but only as specifically provided by law. It further concluded that the action brought pursuant to 42 U.S.C. sec. 1983 against UNC and Winston-Salem State University was barred by the doctrine of sovereign immunity. We find this holding applicable to the facts of the instant case and hold that the trial court erred in denying defendants' motion for summary judgment as to defendants UNC and ASU regarding the 42 U.S.C. sec. 1983 cause of action.

We are unpersuaded that the case sub judice is controlled by Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976), in which our Supreme Court abolished the defense of sovereign immunity in breach of contract actions. Plaintiff's action is based upon defendants' alleged violations of his constitutional rights. Plaintiff's complaint makes no reference to any employment contract or allegation that one was breached. We do not believe that statements in plaintiff's brief that he served as Dean pursuant to a contract is sufficient to bring this case under the rule of Smith v. State when the action is clearly based on alleged constitutional violations and plaintiff's complaint makes no mention of a contract.

We turn now to the issue of whether plaintiff's claim for monetary damages, including back pay, against individual defendants Spangler, Thomas and Durham, named in their official capacities, is barred by sovereign immunity. Again, pursuant to Truesdale, supra, we hold that this action is barred. The rationale for this is that an action against a State employee in his official capacity for monetary damages would actually be an award against the State since the award would be paid from the State treasury. Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 8 S.E.2d 619 (1940); Truesdale, supra, 91 N.C.App. at 193, 371 S.E.2d at 507.

As to these same three defendants in their official capacities, however, plaintiff's section 1983 claim, as it relates to prospective injunctive relief, is not barred by sovereign immunity. Id. at 194-95, 371 S.E.2d at 508. In this situation, sovereign...