An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1020 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
FORREST TRAVIS COSTON, Plaintiff,
v. Mecklenburg County No. 11 CVS 22954 UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE; PHILIP L. DUBOIS in his official capacity; GARY W. STINNENT in his individual and official capacity, Defendants.
Appeal by defendants from order entered 6 June 2013 by
Judge Forrest D. Bridges in Mecklenburg County Superior Court.
Heard in the Court of Appeals 5 March 2014.
No brief filed on behalf of plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General Katherine A. Murphy, for defendants-appellants.
HUNTER, Robert C., Judge.
Defendants appeal the order denying their motion to
dismiss. On appeal, defendants contend that: (1) the
interlocutory order is immediately appealable because it
involves sovereign immunity; (2) the trial court erred in -2- denying UNCC’s motion to dismiss based on sovereign immunity;
(3) the trial court erred in denying defendants Dubois’s and
Stinnent’s motion to dismiss based on lack of personal
jurisdiction; and (4) the trial court erred in denying
defendants’ motion to dismiss based on plaintiff’s failure to
state a claim upon which relief can be granted and res judicata.
After careful review, because plaintiff could not assert a
claim of wrongful discharge in violation of public policy as a
state employee, we reverse the order denying defendants’ motion
to dismiss.
Background
As alleged in the amended complaint, plaintiff Forrest
Coston was a police officer at the University of North Carolina
at Charlotte (“UNCC”). On 26 July 2009, while attending a
convention in Norfolk, Virginia, a Virginia state trooper found
plaintiff asleep in his car. Plaintiff was given an alco-sensor
test which registered his blood alcohol level as 0.11. Upon
returning to UNCC, plaintiff realized that he had left his
weapon in his hotel room in Norfolk. However, he lied and told
his supervisors that the weapon was in the hotel safe.
Plaintiff’s supervisors learned the truth, and he was dismissed
for violations of various regulations and police general orders. -3- Plaintiff filed a petition for a contested case hearing in
the Office of Administrative Hearings (“OAH”) on 8 November
2010. The Administrative Law Judge issued a decision on 24
February 2011, concluding that UNCC had just cause to dismiss
plaintiff and that plaintiff was not discriminated against based
on his race.
Plaintiff instituted the current action on 17 December 2012
by filing a complaint against only defendant UNCC. The matter
was removed to the United States District Court for the Western
District of North Carolina on 20 August 2012. Plaintiff amended
his complaint and added defendants Philip Dubois (“Dubois”), in
his official capacity, and Gary Stinnent (“Stinnent”), in his
individual and official capacity. In the amended complaint,
plaintiff sought relief based on the following causes of action:
(1) wrongful discharge in violation of public policy; and (2)
violations of 42 U.S.C. §§ 1981 and 1983. After defendants
filed a motion to dismiss, plaintiff dismissed his federal law
claims with prejudice and moved to remand the state law claim
for wrongful discharge back to Mecklenburg County Superior
Court, which was allowed.
On 15 March 2013, defendants filed a motion to dismiss the
amended complaint, and plaintiff filed a motion to amend his -4- complaint a second time. With regard to defendants’ motion to
dismiss, defendants asserted the following grounds: (1) the
individual defendants had not been served with the complaint or
summons; (2) plaintiff failed to state a claim upon which relief
can be granted; and (3) the wrongful discharge claim is barred
by the statute of limitations, sovereign immunity, and res
judicata.
The matters came on for hearing on 2 May 2013. The trial
court denied both motions. Specifically, the trial court found
that because “state employees may assert a claim for wrongful
discharge in violation of public policy,” the motion to dismiss
was denied. Defendant timely appealed.
Interlocutory Nature of Appeal
Initially, it should be noted that defendants are appealing
an interlocutory order denying their motion to dismiss pursuant
to Rules 12(b)(1), (2), (4), (5), and (6). Thus, we must first
determine whether the order is immediately appealable.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However,
this Court has long held that a denial of a Rule 12(b)(6) motion
to dismiss on the basis of sovereign immunity affects a -5- substantial right and is immediately appealable. Green v.
Kearney, 203 N.C. App. 260, 266, 690 S.E.2d 755, 761 (2010);
Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 384, 677
S.E.2d 203, 207 (2009). Moreover, although this appeal presents
additional issues other than sovereign immunity, it is well-
established that this Court may, in the interest of judicial
economy, entertain the entirety of an appeal involving an issue
which affects a substantial right, even though the remaining
issues on appeal do not, in and of themselves, affect such a
right. Block v. Cnty. of Person, 141 N.C. App. 273, 277, 540
S.E.2d 415, 419 (2000); Houpe v. City of Statesville, 128 N.C.
App. 334, 340, 497 S.E.2d 82, 87 (1998). Thus, in the interest
of judicial economy, we also will address defendants’ other
arguments on appeal, which relate to the sufficiency of the
complaint.
Arguments
Defendants argue that the trial court erred in denying
their motion to dismiss because plaintiff failed to state a
claim upon which relief can be granted. Specifically,
defendants contend that the claim of wrongful discharge is only
available to at-will employees; since plaintiff could only be
dismissed with cause as a state employee, he was not entitled to -6- assert a claim for relief based on the tort of wrongful
discharge. We agree.
“The motion to dismiss under N.C.R. Civ. P. 12(b)(6) tests
the legal sufficiency of the complaint. In ruling on the motion,
the allegations of the complaint must be viewed as admitted, and
on that basis the court must determine as a matter of law
whether the allegations state a claim for which relief may be
granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d
611, 615 (1979) (citations omitted), overruled on other grounds
by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Our
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1020 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
FORREST TRAVIS COSTON, Plaintiff,
v. Mecklenburg County No. 11 CVS 22954 UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE; PHILIP L. DUBOIS in his official capacity; GARY W. STINNENT in his individual and official capacity, Defendants.
Appeal by defendants from order entered 6 June 2013 by
Judge Forrest D. Bridges in Mecklenburg County Superior Court.
Heard in the Court of Appeals 5 March 2014.
No brief filed on behalf of plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General Katherine A. Murphy, for defendants-appellants.
HUNTER, Robert C., Judge.
Defendants appeal the order denying their motion to
dismiss. On appeal, defendants contend that: (1) the
interlocutory order is immediately appealable because it
involves sovereign immunity; (2) the trial court erred in -2- denying UNCC’s motion to dismiss based on sovereign immunity;
(3) the trial court erred in denying defendants Dubois’s and
Stinnent’s motion to dismiss based on lack of personal
jurisdiction; and (4) the trial court erred in denying
defendants’ motion to dismiss based on plaintiff’s failure to
state a claim upon which relief can be granted and res judicata.
After careful review, because plaintiff could not assert a
claim of wrongful discharge in violation of public policy as a
state employee, we reverse the order denying defendants’ motion
to dismiss.
Background
As alleged in the amended complaint, plaintiff Forrest
Coston was a police officer at the University of North Carolina
at Charlotte (“UNCC”). On 26 July 2009, while attending a
convention in Norfolk, Virginia, a Virginia state trooper found
plaintiff asleep in his car. Plaintiff was given an alco-sensor
test which registered his blood alcohol level as 0.11. Upon
returning to UNCC, plaintiff realized that he had left his
weapon in his hotel room in Norfolk. However, he lied and told
his supervisors that the weapon was in the hotel safe.
Plaintiff’s supervisors learned the truth, and he was dismissed
for violations of various regulations and police general orders. -3- Plaintiff filed a petition for a contested case hearing in
the Office of Administrative Hearings (“OAH”) on 8 November
2010. The Administrative Law Judge issued a decision on 24
February 2011, concluding that UNCC had just cause to dismiss
plaintiff and that plaintiff was not discriminated against based
on his race.
Plaintiff instituted the current action on 17 December 2012
by filing a complaint against only defendant UNCC. The matter
was removed to the United States District Court for the Western
District of North Carolina on 20 August 2012. Plaintiff amended
his complaint and added defendants Philip Dubois (“Dubois”), in
his official capacity, and Gary Stinnent (“Stinnent”), in his
individual and official capacity. In the amended complaint,
plaintiff sought relief based on the following causes of action:
(1) wrongful discharge in violation of public policy; and (2)
violations of 42 U.S.C. §§ 1981 and 1983. After defendants
filed a motion to dismiss, plaintiff dismissed his federal law
claims with prejudice and moved to remand the state law claim
for wrongful discharge back to Mecklenburg County Superior
Court, which was allowed.
On 15 March 2013, defendants filed a motion to dismiss the
amended complaint, and plaintiff filed a motion to amend his -4- complaint a second time. With regard to defendants’ motion to
dismiss, defendants asserted the following grounds: (1) the
individual defendants had not been served with the complaint or
summons; (2) plaintiff failed to state a claim upon which relief
can be granted; and (3) the wrongful discharge claim is barred
by the statute of limitations, sovereign immunity, and res
judicata.
The matters came on for hearing on 2 May 2013. The trial
court denied both motions. Specifically, the trial court found
that because “state employees may assert a claim for wrongful
discharge in violation of public policy,” the motion to dismiss
was denied. Defendant timely appealed.
Interlocutory Nature of Appeal
Initially, it should be noted that defendants are appealing
an interlocutory order denying their motion to dismiss pursuant
to Rules 12(b)(1), (2), (4), (5), and (6). Thus, we must first
determine whether the order is immediately appealable.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However,
this Court has long held that a denial of a Rule 12(b)(6) motion
to dismiss on the basis of sovereign immunity affects a -5- substantial right and is immediately appealable. Green v.
Kearney, 203 N.C. App. 260, 266, 690 S.E.2d 755, 761 (2010);
Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 384, 677
S.E.2d 203, 207 (2009). Moreover, although this appeal presents
additional issues other than sovereign immunity, it is well-
established that this Court may, in the interest of judicial
economy, entertain the entirety of an appeal involving an issue
which affects a substantial right, even though the remaining
issues on appeal do not, in and of themselves, affect such a
right. Block v. Cnty. of Person, 141 N.C. App. 273, 277, 540
S.E.2d 415, 419 (2000); Houpe v. City of Statesville, 128 N.C.
App. 334, 340, 497 S.E.2d 82, 87 (1998). Thus, in the interest
of judicial economy, we also will address defendants’ other
arguments on appeal, which relate to the sufficiency of the
complaint.
Arguments
Defendants argue that the trial court erred in denying
their motion to dismiss because plaintiff failed to state a
claim upon which relief can be granted. Specifically,
defendants contend that the claim of wrongful discharge is only
available to at-will employees; since plaintiff could only be
dismissed with cause as a state employee, he was not entitled to -6- assert a claim for relief based on the tort of wrongful
discharge. We agree.
“The motion to dismiss under N.C.R. Civ. P. 12(b)(6) tests
the legal sufficiency of the complaint. In ruling on the motion,
the allegations of the complaint must be viewed as admitted, and
on that basis the court must determine as a matter of law
whether the allegations state a claim for which relief may be
granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d
611, 615 (1979) (citations omitted), overruled on other grounds
by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Our
review is de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C.
App. 396, 400, 580 S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567,
597 S.E.2d 673 (2003).
In its order, with regard to whether a state employee can
assert a claim for wrongful discharge, the trial court
specifically found that state employees are entitled to this
cause of action. However, this Court has specifically noted
that: “the tort of wrongful discharge arises only in the context
of employees at will. Breach of contract is the proper claim for
a wrongfully discharged employee who is employed for a definite
term or an employee subject to discharge only for ‘just cause.’”
Wagoner v. Elkin City School Bd. of Educ., 113 N.C. App. 579, -7- 588, 440 S.E.2d 119, 125 (1994); see also Coman v. Thomas Mfg.
Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (noting
that the claim of wrongful discharge is a public policy
exception to the employee-at-will doctrine). Here, since
plaintiff was a permanent state employee subject to chapter 126
of the North Carolina General Statutes, he could only be fired
for just cause. N.C. Gen. Stat. § 126-35(a) (2013). Therefore,
as a matter of law, plaintiff was not entitled to assert a cause
of action for wrongful discharge in violation of public policy.
Accordingly, the trial court erred in denying defendants’ motion
to dismiss based on plaintiff’s failure to state a claim upon
which relief can be granted, and we reverse the trial court’s
order.1
Conclusion
Because plaintiff, an employee who could only be discharged
for just cause, was not entitled to assert a cause of action for
wrongful discharge in violation of public policy, we reverse the
trial court’s order denying defendants’ motion to dismiss.
REVERSED.
1 As we are reversing the trial court’s order as to all defendants, it is not necessary to address defendants’ remaining arguments on appeal. -8- Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).