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
Case Details
- Citation
- 171 N.C. App. 150
- Judge(s)
- Judge McGEE concurs.; Judge WYNN concurs in part, dissents in part.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Court of Appeals reversed in part and affirmed in part. Defendants prevailed on wrongful termination, state constitutional rights violations, and § 1983 claims based on at-will employment and immunity doctrines. Trial court's denials of summary judgment on malicious interference with contractual relations, punitive damages, and Western Surety bond claims were reversed.
Excerpt
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 (Filed 5 July 2005) 1. Appeal and Error— appealability — preservation of issues— failure to argue — interlocutory order The cross-assignments of error that plaintiff failed to argue in his brief are deemed abandoned under N.C. R. App. P. 28(a) and plaintiffs cross-appeals, except for wrongful discharge, are interlocutory and dismissed under N.C. R. App. P. 10. 2. Appeal and Error— appealability — denial of summary judgment — immunity—substantial right Although an appeal from the denial of a motion for summary judgment is generally an appeal from an interlocutory order, defendants’ appeal is properly before the Court of Appeals because defendants’ answer and arguments assert the affirmative defenses of immunity and qualified immunity which affect a substantial right sufficient to warrant immediate appellate review. 3. Wrongful Interference— malicious interference with contractual relations — summary judgment The trial court erred by denying defendant sheriff’s motion for summary judgment on plaintiff’s claim for malicious interference with contractual relations in defendant’s official and individual capacity, because: (1) plaintiff’s allegations fail to establish the element of “no justification” to support his claims for malicious interference with contract as an investigatorial assistant in the district attorney’s office; (2) plaintiff’s allegations do not show that defendant sheriff did not have an official or personal justification in requesting plaintiff to be reassigned or terminated and that defendant, as a constitutionally elected officer, enjoyed a qualified immunity from tort in communicating with defendant district attorney who was also a constitutionally elected officer; (3) plaintiff offered no evidence to show that the district attorney terminated him because of the sheriff’s request or that he suffered recoverable damages as a result of the sheriff requesting plaintiffs termination; and (4) the district attorney’s affidavit and answers to plaintiffs interrogatories set forth objective and substantial reasons for terminating plaintiff, none of which were based upon the sheriffs request to do so. 4. Constitutional Law— North Carolina — suit against district attorney in individual and personal capacity — summary judgment The trial court erred by concluding that defendant district attorney was not entitled to summary judgment on plaintiffs claim for relief under violations of the North Carolina Constitution in defendant’s individual and personal capacity, because: (1) it is well settled in North Carolina that no direct cause of action for monetary damages exists against officials sued in their individual capacities who have allegedly violated a plaintiff’s constitutional rights; and (2) plaintiff concedes that his complaint does not set forth a cause of action against defendant in his individual and personal capacity for this claim. 5. Public Officers and Employees— wrongful termination— investigatorial assistant in district attorney’s office The trial court did not err by granting summary judgment for defendant district attorney on plaintiff’s wrongful termination claim based on defendant firing plaintiff as an investigatorial assistant after plaintiff’s unsuccessful candidacy for sheriff, because: (1) plaintiff did not show that he was discharged for any reason that contravenes public policy; (2) plaintiff was not restrained by defendant from running for public office, making any speech, or engaging in a protected activity which furthers a public policy; (3) as an at-will and exempt employee under N.C.G.S. § 126-5(cl)(2) based on his employment in the Judicial Department, plaintiff’s public opposition to his superior’s discretionary decisions and his inability to work cooperatively with law enforcement agencies with which the district attorney must communicate and coordinate on a daily basis is a legally sufficient reason for defendant to terminate plaintiff’s employment; (4) plaintiff did not allege that his candidacy for sheriff, speeches, and activities, for which he was allegedly terminated, resulted from his employer’s demand that he conduct some unlawful activity or was in retaliation for cooperating with a law enforcement agency conducting an investigation; (5) plaintiff’s allegations and evidence did not show how his candidacy for sheriff immunized his speech as political expression that is protected by a public policy exception to bar his termination when that speech publicly exuded insubordination and directly criticized his supervisor’s prosecutorial discretion whether to bring criminal charges; (6) plaintiffs public statements criticizing defendant’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate plaintiff’s at-will employment; and (7) defendant’s decision to terminate plaintiff rested within his lawful and discretionary scope of authority under N.C.G.S. § 7A-69. 6. Civil Rights— § 1983 claim — failure to show deprivation of constitutionally protected rights The trial court erred by denying summary judgment for defendants on plaintiff’s 42 U.S.C. § 1983 claim, because: (1) plaintiff failed to show any public policy exception which cloaks him from termination of his at-will employment as an investiga-torial assistant who serves at the pleasure of the district attorney as provided by N.C.G.S. § 7A-69; (2) there is no genuine issue of material fact as to whether plaintiff was deprived of any rights, privileges, or immunities secured by the Constitution and laws as a terminated at-will employee of defendant district attorney (DA); (3) plaintiff’s right to say whatever he wanted was not restrained by defendant DA or anyone else; and (4) defendant DA had the right to terminate plaintiff’s employment for any reason, for no reason, or for an arbitrary or irrational reason so long as his actions did not violate a recognized public policy. 7. Damages and Remedies— punitive damages — summary judgment The trial court’s denial of defendants’ motions for summary judgment on the remainder of plaintiff’s claims, including those for punitive damages, that have not been previously dismissed are reversed. Judge Wynn concurring in part and dissenting in part. 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., 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, 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 publically 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 sheriffs position, plaintiff was instructed by Yates not to work on pending cases involving the Randolph County sheriffs 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, plaintiffs 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 pub-lically 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 sheriffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 783, 785 (1999) (citations omitted). We recognize the non-prevailing party’s right to immediate review because “ ‘the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.’ ” Id. (quoting Epps v. Duke University, Inc., 122 N.C. App. 198, 201, 468 S.E.2d 846, 849, disc. rev. denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citing Herndon v. Barrett, 101 N.C. App. 636, 639, 400 S.E.2d 767, 769 (1991))). Defendants’ answer and arguments assert the affirmative defense of immunity and qualified immunity. This appeal is properly before this Court. Id. IV. Standard of Review . In a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: “1) Proving that an essential element of the opposing party’s claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.” Price v. Davis, 132 N.C. App. 556, 559, 512 S.E.2d 783, 786 (1999) (citing Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93, disc. rev. denied, 334 N.C. 621, 435 S.E.2d 336 (1993)). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. N.C. Gen. Stat. § 1A-1, Rule 56(e) (2003). V. Interference with Contract Hurley asserts the trial court erred in its order denying his motion for summary judgment on plaintiffs claim against him for malicious interference with contractual relations in his official and individual capacity. We agree. The five essential elements a plaintiff must show for a viable claim for malicious interference with contract are: (1) a valid contract existed between plaintiff and a third person, (2) defendant knew of such contract, (3) defendant intentionally induced the third person not to perform his or her contract with plaintiff, (4) defendant had no justification for his or her actions, and (5) plaintiff suffered damage as a result. Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 587, 440 S.E.2d 119, 124 (1994) (citing McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 308, 382 S.E.2d 836, 841, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 463, 337 S.E.2d 639, 643 (1985), cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986)). Plaintiffs complaint alleges “[a]t all times herein alleged, Hurley was the duly elected Sheriff of Randolph County.” Plaintiff’s claim for malicious interference with contractual relations asserts Hurley “acted without any proper purpose related to his duties as Sheriff . . . solely for reasons of ill will and malice ... to intentionally and maliciously cause defendant Yates to terminate plaintiffs employment.” Hurley argues public official immunity and qualified immunity bar this claim. “Governmental immunity protects the governmental entity and its officers or employees sued in their ‘official capacity.’ ” Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279 (1993) (quoting Whitaker v. Clark, 109 N.C. App. 379, 382, 427 S.E.2d 142, 144, disc. rev. and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993)), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). We have held “absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action.” Clark v. Burke C
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