Hines v. Yates

• Decision Date: 05 July 2005
• Docket Number: No. COA04-775.,COA04-775.
• Citation: 614 S.E.2d 385
• Parties: Hugh Kevin HINES, Plaintiff, v. Garland N. YATES, in his Individual and Personal Capacity and in His Official Capacity as the District Attorney for the 19-B Prosecutorial District, State of North Carolina; Litchard D. Hurley, in His Individual and Personal Capacity and in His Official Capacity as the Sheriff of Randolph County, North Carolina; Western Surety Company, a South Dakota Corporation, Defendants.
• Court: North Carolina Supreme Court

614 S.E.2d 385

Hugh Kevin HINES, Plaintiff, v. Garland N. YATES, in his Individual and Personal Capacity and in His Official Capacity as the District Attorney for the 19-B Prosecutorial District, State of North Carolina; Litchard D. Hurley, in His Individual and Personal Capacity and in His Official Capacity as the Sheriff of Randolph County, North Carolina; Western Surety Company, a South Dakota Corporation, Defendants.

No. COA04-775.

Court of Appeals of North Carolina.

July 5, 2005.

COPYRIGHT MATERIAL OMITTED

Appeals by defendants and cross appeals by plaintiff from order entered 26 February 2004 by Judge John O. Craig, III, in Randolph County Superior Court. Heard in the Court of Appeals 2 February 2005.

Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., Greensboro, for plaintiff-appellee/cross-appellant.

Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for defendant-appellant/cross-appellee Garland N. Yates.

Womble Carlyle Sandridge & Rice, A Professional Limited Liability Company, by Allan R. Gitter and Douglas R. Vreeland, Winston-Salem, for defendants-appellants/cross-appellees Litchard D. Hurley and Western Surety Company.

TYSON, Judge.

Garland N. Yates ("Yates"), Litchard D. Hurley ("Hurley"), and Western Surety Company (collectively, "defendants") appeal from an order denying their motions for summary judgment. We affirm in part, reverse in part, and dismiss plaintiff's complaint.

I. Background

From 7 January 1999 to 31 December 2002, Hugh Kevin Hines ("plaintiff") worked as an investigatorial assistant in the district attorney's office for 19-B Prosecutorial District. Plaintiff's job duties included locating and interviewing witnesses, serving subpoenas for attendance at trials, and acting as a liaison between the district attorney's office and law enforcement agencies. Prior to working for Yates, plaintiff worked as a lieutenant for the sheriff of Randolph County.

During the 2002 election, plaintiff became a candidate in the republican primary election for sheriff of Randolph County and challenged Hurley, the incumbent sheriff. Over the course of the campaign, plaintiff publicly criticized Yates for his prosecutorial decisions in prior cases and publicly announced his disagreement with Yates' decision to not criminally charge a sheriff's deputy who had collided with a motorcyclist during a pursuit. The motorcyclist died from injuries sustained from the collision. Plaintiff also publicly expressed his disagreement with the sheriff's department's investigation and handling of an unrelated and unsolved murder case.

Plaintiff's affidavit states that:

Yates, on numerous occasions personally stated to me that he intended to discharge me from my employment . . . due to my seeking the office of Sheriff of Randolph County . . . after each occasion on which I made a public appearance or there was some news media attention in connection with my election campaign.

After plaintiff appeared at a public event to express interest in running for the sheriff's position, plaintiff was instructed by Yates not to work on pending cases involving the Randolph County sheriff's department.

In the primary election held 10 September 2002, Hurley defeated plaintiff, secured the republican party's nomination, and won reelection as sheriff of Randolph County in the November general election. On 16 September 2002, less than one week after the primary election, plaintiff's annual employee performance report was completed. On 26 September 2002, Kay Lovin, Yates' administrative assistant and plaintiff's supervisor, informed plaintiff of his impending termination. Yates extended the termination date to 31 October 2002, and again to 31 December 2002, and offered plaintiff the opportunity to resign. Yates also offered to provide a reference to other law enforcement agencies. Plaintiff refused to resign and continued to criticize the sheriff's department after the election.

In his sworn affidavit, Yates stated, "[Plaintiff] continued to criticize the Sheriff and even accused him of voter fraud" and "stated publically that he intended to run against the Sheriff again in 2006." On 31 December 2002, plaintiff received a separation notice from Yates stating as grounds that "[e]mployee is no longer able to function effectively in his position. To wit: cooperate and maintain an effective and confidential relationship with all law enforcement agencies in the judicial district." Yates listed as a second reason for plaintiff's separation as "[e]mployee further directly criticized supervisor's decision in the media concerning a law enforcement matter."

Plaintiff instituted this action seeking damages from defendants for various torts: (1) wrongful discharge against Yates in both his official and individual capacity; (2) malicious interference with contractual relations against Hurley; (3) violation of plaintiff's State constitutional rights by Yates and Hurley in their official capacities; (4) violation of plaintiff's federal constitutional rights under 42 U.S.C. § 1983 against Yates and Hurley in their official and personal individual capacities; and (5) claims for punitive damages for Hurley's and Yates' conduct in their official and personal individual capacities. Plaintiff asserted claims against Western Surety Company on Hurley's official bond. Defendants answered and asserted defenses of sovereign immunity, qualified immunity, and that plaintiff was an "at will employee."

Defendants moved for summary judgment. Hurley's sworn affidavit, filed with his motion for summary judgment, admits he asked Yates to reassign plaintiff from the sheriff's department's cases due to "[his] concern that a conflict of interest was arising by plaintiff's reportedly questioning crime victims as to whether they were satisfied with response times, friendliness, etc. of deputy investigators . . . for the time during the election campaign." Hurley denies requesting Yates to terminate plaintiff. Yates' sworn affidavit states, "[a]t no time did Sheriff Hurley or anyone on his behalf ask me to fire [plaintiff]. I made the decision."

The trial court granted defendants' motions regarding: (1) "plaintiff's first claim for relief as against defendant Yates in his official capacity and in his individual and personal capacity" (wrongful discharge); (2) "plaintiff's third claim for relief as against defendant Hurley in his official capacity and in his individual and personal capacity" (denial of State constitutional rights); (3) "plaintiff's third claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity" (denial of State constitutional rights); (4) "plaintiff's fourth claim for relief as against defendant Yates in his official capacity for all forms of relief except injunctive relief, but not as against defendant Yates in his individual and personal capacity" (denial of federal constitutional rights under color of State law); (5) "plaintiff's sixth claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity" (punitive damages); and (6) plaintiff's sixth claim for relief as against defendant Hurley in his official capacity but not as against defendant Hurley in his individual and personal capacity (punitive damages).

The trial court denied defendants' motions for summary judgment on plaintiff's: (1) second claim of relief for malicious interference with contractual relations against Hurley; (2) injunctive relief for violation of plaintiff's State constitutional rights by Yates in his individual and personal capacities; (3) violation of plaintiff's federal constitutional rights under 42 U.S.C. § 1983 against Yates in his individual and personal capacities limited to injunctive relief; (4) plaintiff's fifth claim for relief on the sheriff's bond against Western Surety Company (for wrongful conduct by Hurley in his official capacity as sheriff); and (5) punitive damages against both Hurley and Yates in their individual and personal capacities. Defendants appeal and plaintiff cross appeals.

II. Issues

The common issues presented by defendants are whether the trial court erred in denying defendants' summary judgment motions on plaintiff's claims for violation under 42 U.S.C. § 1983 and punitive damages. Defendants Hurley and Western Surety separately assert the trial court erred in denying summary judgment on plaintiff's malicious interference with contractual relations as plaintiff failed to allege a waiver of immunity.

Plaintiff assigned cross assignments of error on the granting of defendants' motions for summary judgment dismissing plaintiff's claims for: (1) wrongful discharge by Yates; (2) punitive damage charge against Hurley in his official capacity; (3) all forms of relief except injunction in regards to his 42 U.S.C. § 1983 action; and (4) punitive damages against Yates and Hurley in their official capacities. Except for the trial court's granting Yates summary judgment and dismissing plaintiff's claims for wrongful discharge, plaintiff's arguments in his brief assert solely alternative grounds to support the trial court's partial summary judgment in his favor. Plaintiff abandoned his remaining cross assignments of error by not arguing them in his brief. N.C.R.App. P. 28(a) (2004); Summers v. City of Charlotte, 149 N.C.App. 509 n. 8, 562 S.E.2d 18 n. 8 (2002). Also, plaintiff's cross appeals, except the wrongful discharge, are interlocutory and are dismissed. N.C.R.App. P. 10 (2004).

III. Interlocutory Appeal

Defendants' appeal of an order denying their motions for summary judgment is interlocutory. 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." Price v. Davis, 132 N.C.App. 556, 558-59, 512 S.E.2d...