Livingood v. Meece

• Decision Date: 12 November 1991
• Docket Number: No. 910033,910033
• Citation: 477 N.W.2d 183
• Parties: Virginia LIVINGOOD, Plaintiff and Appellant, v. Henry C. MEECE, Jr., personally and as Superintendent of the Grafton State School; John Graham, Director of the North Dakota Department of Human Services; Richard Rayl, Director of Institutions, State of North Dakota, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 183

477 N.W.2d 183

Virginia LIVINGOOD, Plaintiff and Appellant, v. Henry C. MEECE, Jr., personally and as Superintendent of the

Grafton State School; John Graham, Director of the North

Dakota Department of Human Services; Richard Rayl, Director

of Institutions, State of North Dakota, Defendants and Appellees.

Civ. No. 910033.

Supreme Court of North Dakota.

Nov. 12, 1991.

Neil W. Fleming (argued), of Fleming, DuBois & Trenbeath, Cavalier, for plaintiff and appellant.

Gary R. Thune (argued), of Pearce & Durick, Bismarck, for defendant and appellee Henry C. Meece, Jr., individually.

Sidney J. Hertz Fiergola (argued), Asst. Atty. Gen., Attorney General's Office, Bismarck, for defendants and appellees Henry C. Meece, Jr., Superintendent of Grafton State School; John Graham, Director of the LEVINE, Justice.

Dept. of Human Services; and Richard Rayl, Director of Institutions.

Virginia Livingood appeals from a district court order dismissing her civil rights, breach of contract, and tort claims against Henry C. Meece, Jr., personally and as superintendent of the Grafton State School; John Graham, director of the Department of Human Services; and Richard Rayl, director of Institutions. We affirm in part and reverse in part.

Livingood was employed as a "Unit Director" at the Grafton State School, now known as the State Developmental Center. On January 6, 1986, her position was changed from a "Unit Director" to an "Administrative Resident Living Supervisor III" and her salary was reduced from $2,148 per month to $1,856 per month. She retired in 1989.

In June 1990, Livingood brought this action against the defendants seeking to recover damages for violations of her constitutional rights and breach of contract based upon her alleged demotion without notice or opportunity to appeal. She alleged that: (1) the defendants violated internal and state policies depriving her of property without due process in contravention of the fifth and fourteenth amendments to the United States Constitution and "corresponding state" constitutional provisions; (2) the defendants reduced her salary depriving her of property without due process in violation of the fifth and fourteenth amendments and corresponding state constitutional provisions; (3) the defendants demoted her without first providing notice and an opportunity for a hearing violating provisions of the Grafton State School Policy Manual and state personnel policies and constituting a breach of her employment agreement; (4) the defendants reduced her salary violating the provisions of the Grafton State School Policy Manual and amounting to a breach of her employment contract; and (5) Meece "intentionally instigated the breach of contract."

Livingood sought $30,000 for lost income and retirement benefits for the breach of contract claim; $30,000 for lost income and retirement benefits for the intentional interference with contractual relations claim; $50,000 in compensatory damages for violation of her civil rights; and injunctive relief requiring the state to "adjust [her] retirement benefits to correspond with her salary contributions prior to demotion" and to "retrospectively reinstate [her] salary and provide her with backpay."

The defendants, in their official capacities, subsequently moved for dismissal of the complaint pursuant to NDRCivP 12(b) for lack of jurisdiction and failure to state a claim upon which relief can be granted on the grounds that the suit was barred by sovereign immunity and by Livingood's failure to comply with NDCC Secs. 32-12-02 and 32-12-03. Meece, in his personal capacity, also moved for dismissal under Rule 12(b) alleging failure to state a claim upon which relief can be granted. Meece asserted that Livingood was not "demoted," but was "transferred," and that by accepting the transfer she had waived any rights under the alleged employment contract. Meece contended the "transfer" was necessitated "by a reduction in the population of the State School as required by federal court order in the ARC lawsuit." Meece also asserted that he was entitled to either absolute or qualified immunity.

The trial court granted the motions for dismissal. Although the court refused to apply the doctrine of sovereign immunity to bar the suit, the court determined, among other things, that Livingood voluntarily relinquished her job classification by accepting less pay in her new position, thereby precluding any claim of violation of civil rights or breach of contract. The court also determined that Livingood's signing of an "Employee Change of Status" form indicated acquiescence that "belies her claim of outrageous conduct attributed to Meece." This appeal followed.

Livingood asserts that the trial court erred in apparently converting the defendants' Rule 12(b) motions for dismissal into motions for summary judgment under NDRCivP 56, and that, in any event, genuine issues of material fact exist which precluded If, on a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b), matters outside the pleadings are presented to and not excluded by the court, the motion should be treated as one for summary judgment and disposed of as provided in Rule 56. Union State Bank v. Woell, 434 N.W.2d 712, 715 (N.D.1989). Of course, when this occurs, each party must be allowed a reasonable opportunity to present material pertinent to the motion under Rule 56. Eck v. City of Bismarck, 283 N.W.2d 193, 196-197 (N.D.1979).

the entry of summary judgment in this case. Although it is not entirely clear whether the trial court intended to treat the motions as motions for summary judgment, we disagree with Livingood that the trial court could not do so.

In this case, Meece in his personal capacity submitted various materials outside the pleadings along with his Rule 12(b) motion for dismissal. These materials included selected portions of the Grafton State School Personnel Policies and North Dakota Personnel Policies as well as a form, signed by Livingood, entitled "Employee Change of Status." The form indicates a change of position from "Unit Director" with a monthly salary rate of $2,148 handwritten underneath, to "RLS III, Administrative" with a monthly salary rate of $1,856 handwritten underneath. Under "Remarks concerning change" is typed "Change of job from Unit Director of Pleasant View which is closing down to administrative assistant for Education Department to same things as RLS III Administrative does on Units. At the discretion of the Superintendent and those administrators assisting him in the transfer process, this employee will be transferred to the Education Department." "Top of the range pay grade 19" is also handwritten on the document.

The trial court, relying on matters outside the pleadings, dismissed the action on the basis that the Employee Change of Status form showed Livingood had voluntarily relinquished her job classification and accepted less pay. Livingood then moved for reconsideration and submitted her affidavit stating that at the time she signed the document, "the salary information ... was not filled in," nor were the typewritten and handwritten comments. Livingood also submitted an affidavit of her supervisor and an internal office memo which supported her assertions. She also submitted portions of the Grafton State School Personnel Policies and a "Report to Director of Institutions Regarding Investigation at Grafton and San Haven." In the order affirming its previous dismissal, the trial court indicated that it had "reconsidered its decision" in light of the additional materials. Based on this record, we believe that Livingood was given a reasonable opportunity to present material pertinent to the motion under Rule 56.

We agree with Livingood, however, that the trial court erred in ruling as a matter of law that she voluntarily relinquished her job position and accepted lower pay, thereby requiring dismissal of her claims. Summary judgment is proper when, after viewing the evidence in the light most favorable to the opposing party and giving that party the benefit of all favorable reasonable inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts. Volk v. Wisconsin Mortgage Assurance Co., 474 N.W.2d 40, 43 (N.D.1991). Livingood presented evidence showing that she was unaware when she signed the document that she would suffer a reduction in pay. This created a reasonable inference that she did not voluntarily relinquish her position and accept lower pay. In damage suits, issues of voluntariness and acquiescence generally are treated as questions of fact. See Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 794 (N.D.1987); Century Park Condo. v. Norwest Bank, 420 N.W.2d 349, 352 (N.D.1988). Summary judgment disposition of this issue was therefore improper.

The appellees assert that, at the very least, judgment in favor of some of the defendants on some of the claims was proper as a matter of law even under Rule A complaint should not be dismissed under Rule 12(b)(5) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. United Plainsmen v. N.D. State Water Cons., 247 N.W.2d 457, 459 (N.D.1976). The complaint must be construed in the light most favorable to the plaintiff, and the well-pleaded allegations in the complaint are taken as true. Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763, 765 (N.D.1980). The motion should be granted only if it is disclosed with certainty the impossibility of proving a claim for which relief can be granted. Williams v. State, 405 N.W.2d 615 (N.D.1987).

12(b) standards. An appellee is entitled on appeal to attempt to save the judgment by urging any ground asserted in the trial court. Tkach v. American Sportsman, Inc., 316 N.W.2d 785, 787 (N.D.1982).

BREACH OF CONTRACT CLAIM

This court has held that no...