Wrongful Termination Cases

<bold>1. Appeal and Error — appealability —</bold> <bold>discovery order — some documents protected, some not</bold> <bold>— immediately appealable</bold> <block_quote> The immediate appeal of a trial court discovery order protecting some but not all of the documents in question affected a substantial right that would otherwise be lost, and the order was reviewed. However, the order will be upset only by a showing that the trial court abused its discretion.</block_quote> <bold>2. Discovery — emails — attorney-client</bold> <bold>privilege — inapplicability</bold> <block_quote> Emails exchanged between bank officials were not protected from discovery by the attorney-client privilege where they suggested a purely business matter, were not for legal advice, and the attorneys were copied merely for information. A document without privilege in the hands of the client does not become privileged merely because it is handed to the attorney.</block_quote> <bold>3. Discovery — emails — attorney-client</bold> <bold>privilege — applicability</bold> <block_quote> The trial court did not abuse its discretion by finding that certain emails were protected from discovery by the attorney-client privilege where the attorney-client relationship was firmly established at the time the emails were sent; the emails were apparently exchanged in confidence; they related to discovery matters about which the attorneys were being consulted; and they were exchanged in the course of litigation and arbitration.</block_quote><page_number>Page 407</page_number> <bold>4. Discovery — attorney-client privilege —</bold> <bold>applicability</bold> <block_quote> The trial court did not abuse its discretion by ruling that an email from counsel discussing revisions to a draft resolution and an email from in-house counsel were protected from discovery by the attorney-client privilege and that an email from attorneys requesting a meeting and an email from defendant shared with attorneys an

<bold>1. Public Officers and Employees — dismissal of</bold> <bold>state employee — personal misconduct — final</bold> <bold>agency decision</bold> <block_quote> The trial court did not err in a case involving the dismissal of a state employee for personal misconduct by determining that the ALJ's recommended decision became the final decision of the State Personnel Commission under N.C.G.S. § <cross_reference>150B-44</cross_reference>, because:<page_number>Page 216</page_number> (1) after failing to reach a majority vote during its 20 February 2003 meeting, the Commission issued a Memorandum of Consideration on 1 April 2003, and absent any findings of fact or conclusions of law, the Memorandum of Consideration cannot be considered a final decision under N.C.G.S. § <cross_reference>150B-36</cross_reference>(b); (2) in order to protect petitioner dismissed employee from unreasonable delay, N.C.G.S. § <cross_reference>150B-44</cross_reference> provided petitioner the remedy of making the ALJ's recommended decision the final decision of the agency so the administrative appeals process could continue; and (3) this situation, in which an administrative agency failed to issue a final decision within the statutorily prescribed period, is the situation N.C.G.S. § <cross_reference>150B-44</cross_reference> was intended to remedy.</block_quote> <bold>2. Administrative Law — whole record review —</bold> <bold>de novo review — dismissal of state employee</bold> <block_quote> The trial court did not err in a case involving the dismissal of a state employee for personal misconduct by using the whole record standard of review instead of reviewing the matter de novo, because: (1) in cases where petitioner contends the agency decision was not supported by substantial evidence, the whole record test is the proper standard of review, and the first ground for relief in his petition stated that the ALJ's findings of fact and conclusions of law were not supported by evidence in

<bold>1. Immunity; Nurses — sovereign immunity —</bold> <bold>Board of Nursing — wrongful termination</bold> <block_quote> The trial court did not err by dismissing plaintiff's complaint against the N.C. Board of Nursing (Board) for wrongful termination on the basis of sovereign immunity because the legislative enactment, governmental appointment of members to defendant Board, and public purpose performed by the Board make the Board an agency of the state entitled to the defense of sovereign immunity.</block_quote> <bold>2. Appeal and Error — preservation of issues —</bold> <bold>failure to make assignment of error in brief</bold> <block_quote> Although plaintiff contends the trial court erred by relying on documentation submitted by defendant Board of Nursing (Board) in determining whether it is a state agency, this assignment of error is dismissed because: (1) this argument does not relate to plaintiff's assignments of error, and thus, is not a matter properly before the Court of Appeals; and (2) this assignment of error is irrelevant when the Court of Appeals has already determined that the Board is a state agency solely by examining the statutes.</block_quote> <bold>3. Appeal and Error — preservation of issues —</bold> <bold>failure to raise issue</bold> <block_quote> Although the dissent contends that plaintiff's complaint for wrongful termination states a claim for relief under N.C.G.S. § <cross_reference>9-32</cross_reference> which would waive sovereign immunity, this issue is not reached because it was never raised by the parties or addressed<page_number>Page 46</page_number> by the trial court, and plaintiff failed to allege in her complaint that sovereign immunity had been waived.</block_quote> <bold>4. Appeal and Error — preservation of issues —</bold> <bold>failure to state legal basis</bold> <block_quote> Although plaintiff contends the trial court erred by failing to hear or consider plaintiff's other arguments regarding issues rel