ANNE H. CRAIG v. THE ASHEVILLE CITY BOARD OF EDUCATION
No. COA00-175
Appeal by defendant from order denying summary judgment
entered 6 December 1999 by Judge Loto G. Caviness in Buncombe
County Superior Court. Heard in the Court of Appeals 11 January
2001 .
Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, by S. Luke
Largess for plaintiff-appellee
Roberts & Stevens, by Elizabeth N. Rich for defendant-
appellant
THOMAS, Judge.
The Asheville City Board of Education, defendant, appeals from
a denial of its summary judgment motion. For the reasons discussed
herein, we affirm the trial court.
The facts are as follows: Plaintiff Anne Craig began workingas a probationary third-grade teacher at Isaac Dickson
Elementary
School in 1993. A probationary teacher is one who has not
achieved career-teacher status, but is certificated. See N.C. Gen.
Stat. § 155C-325(a)(5) (1999). At the end of plaintiff's third
year, Dickson principal Robert McGrattan and assistant principal
Elaine Poovey recommended the non-renewal of plaintiff's contract
to Superintendent Karen Campbell. Campbell concurred with them in
her recommendation to defendant, which declined to renew
plaintiff's contract. Defendant then denied plaintiff's request
for a hearing before the full board.
Plaintiff brought suit against defendant, seeking damages for
lost wages, humiliation, emotional distress and other compensable
injuries. She alleged the board's decision not to renew her
contract was arbitrary and capricious and unlawfully based on
personal reasons, all in violation of N.C. Gen. Stat. § 115C-
325(m)(2). Defendant moved for summary judgment, which the trial
court denied.
[1]Although neither party briefs the question, an issue
exists concerning plaintiff's appeal from the board's decision.
The legislature amended Chapter 115C in 1997 and set forth a
specific appeal process for claimants in plaintiff's circumstances.
See N.C. Gen. Stat. § 115C-325(n) (1999). However, in the instant
case, plaintiff's alleged injury occurred in 1996 when there was no
special statutory appeal procedure for probationary teachers.
Claims alleging a violation of section 115C-325(m)(2) give
rise to a right of action that should be resolved by the court and
not the school board. See Sigmon v. Poe, 528 F.2d 311 (4th Cir.1975). Thus, because the amendment to section 115C-325(n) was not
yet codified, plaintiff's claim was properly before the superior
court even though the complaint was filed approximately two years
after the non-renewal decision by defendant. This brings us to the
present argument.
[2]Defendant contends the trial court erred in denying its
motion for summary judgment because it is entitled to governmental
immunity. Governmental immunity is an affirmative defense that
serves to bar the plaintiff's tort claims against a sovereign.
Johnson v. York, 134 N.C. App. 332, 335, 517 S.E.2d 670, 672
(1999). Plaintiff, however, contends this issue is interlocutory
and not immediately appealable because plaintiff is not asserting
a tort claim.
A ruling is interlocutory if it does not determine the issues
but directs some further proceeding preliminary to a final decree.
Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299
S.E.2d 777 (1983). In general, interlocutory orders are not
immediately appealable to an appellate court. State ex rel.
Employment Security Commission v. IATSE Local 574, 114 N.C. App.
662, 663, 442 S.E.2d 339, 340 (1994). However, an interlocutory
order may be heard in appellate courts if it affects a substantial
right. See N.C. Gen. Stat. § 1-277(a) (1999). This Court has held
that denial of a motion for summary judgment grounded on
governmental immunity affects a substantial right and is
immediately appealable. Schmidt v. Breeden, 134 N.C. App. 248,
517 S.E.2d 171 (1999).
We thus find defendant's claim is immediately appealable tothis Court because it has claimed governmental immunity
as an
affirmative defense. See Moore v. Evans, 124 N.C. App. 35, 476
S.E.2d 415 (1996).
[3]As to defendant's assignment of error, however, we
disagree. Defendant sought to dismiss all of plaintiff's claims via
governmental immunity. Yet governmental immunity is only effective
as an affirmative defense against tort claims. See Hallman v.
Charlotte-Mecklenburg Board of Education, 124 N.C. App. 435, 477
S.E.2d 179 (1996); Orange County v. Heath, 282 N.C. 292, 294, 192
S.E.2d 308, 309 (1972); see also N.C. Gen. Stat. § 115C-42 (1999).
Plaintiff's claim for damages involved only a statutory violation.
No tort was alleged in her complaint.
Defendant argues that plaintiff's claim for a statutory
violation should be treated as a tort claim because traditional
tort remedies such as damages for emotional distress and future
lost wages are requested. We note section 115C-325(m)(2) does not
set out exclusive remedies. Accordingly, any remedy available to
plaintiff would be based on common law. See Buchanan v. Hight, 133
N.C. App. 299, 305, 515 S.E.2d 225, 230 (1999). The question of
available remedies is not now before the Court and, therefore, we
do not pass judgment on what specific remedies would be available.
We further note that because defendant cites no authority to
support its argument, it is deemed waived. See N.C.R. App. P.
28(b)(5) (1999).
Governmental immunity does not bar plaintiff's claims since
this is not a suit in tort but an allegation of a statutory
violation. We affirm the trial court's denial of defendant'smotion for summary judgment.
AFFIRMED.
Judges MARTIN and TIMMONS-GOODSON concur.
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