LULA SANDERS, CYNTHIA EURE, ANGELINE MCINERNY, JOSEPH C. MOBLEY, on behalf of themselves and others similarly situated, Plaintiffs,
STATE PERSONNEL COMMISSION, a body politic; OFFICE OF STATE PERSONNEL, a body politic; LINDA COLEMAN, State Personnel Director (in her official capacity); TEACHERS' AND STATE EMPLOYEES' RETIREMENT SYSTEM OF NORTH CAROLINA, a body politic and corporate; MICHAEL WILLIAMSON, Director of the Retirement System Division and Deputy Treasurer of the State of North Carolina (in his official capacity); JANET COWELL, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the Retirement System (in her official capacity); TEMPORARY SOLUTIONS, a subdivision of the Office of State Personnel, and STATE OF NORTH CAROLINA, Defendants
Heard in the Court of Appeals December 12, 2013.
Wake County. No. 05-CVS-004322.
Kilpatrick Townsend & Stockton LLP, by Adam H. CharnesMr., James H. Kelly, Jr.Mr., Susan H. BoylesMs., Richard D. DietzMr., and Gregg E. McDougal, and North Carolina Justice Center, by Jack HoltzmanMr., for Plaintiffs.
Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. NanceMr. and Special Deputy Attorney General Charles Gibson WhiteheadMr., for Defendants.
State Employees Association of North Carolina, by Mr. Thomas A. Harris, amicus curiae.
Attorney General Roy Cooper, by Special Deputy Attorney General Ms. Valerie L. Bateman, for Defendants.
DILLON, Judge. Judge STROUD concurs. Robert N. HUNTER, JR., Judge, dissenting.
Appeal by Plaintiffs from order entered 18 December
2012 by Judge Kenneth C. Titus in Wake County Superior Court.
This case was commenced in 2005 and has been on appeal before this Court twice previously. See Sanders v. State Personnel Comm'n, 183 N.C.App. 15, 644 S.E.2d 10 (" Sanders I " ), disc. review denied, 361 N.C. 696, 652 S.E.2d 653 (2007); and Sanders v. State Personnel Comm'n, 197 N.C.App. 314, 677 S.E.2d 182 (2009) (" Sanders II " ), disc. review denied, 363 N.C. 806, 691 S.E.2d 19 (2010).
In the present appeal, Plaintiffs Lula Sanders, et al. (" Plaintiffs" ) challenge the trial court's order denying their motion for partial summary judgment and granting summary judgment in favor of Defendants State Personnel Commission, et al. (" Defendants" ). Defendants, on the other hand, have filed a cross-appeal, challenging the trial court's award of costs, including attorneys' fees, in Plaintiffs' favor. For the following reasons, we affirm the trial court's order denying Plaintiffs' motion for partial summary judgment and granting Defendants' motion for summary judgment, and we affirm in part and dismiss in part the issues raised in Defendants' cross-appeal.
I. Factual & Procedural Background
Pursuant to its authority under the State Personnel Act, N.C. Gen. Stat. § 126-4 (2013), the State Personnel Commission (the " Commission" ) has promulgated regulations establishing various types of appointments through which an individual may gain employment with the State of North Carolina. See 25 N.C.A.C. 1C.0400, et seq. For example, some individuals are hired as permanent employees with the State through a permanent appointment, see 25 N.C.A.C. 1C.0402, and others are hired as temporary employees through a temporary appointment, see 25 N.C.A.C. 1C.0405.
There are two differences between temporary employees and permanent employees which are relevant to this case. First, while under the regulations the period of employment for a permanent employee is indefinite, the regulations stipulate that a person may not be employed as a temporary employee for a period " exceed[ing] 12 consecutive months" (hereinafter, the " Twelve-Month Rule" ). 25 N.C.A.C. 1C.0405(a). The second difference is that temporary employees are not eligible to receive certain benefits available to permanent employees, such as leave time, state service credit, health benefits, retirement credit, severance pay, or priority reemployment consideration. 25 N.C.A.C. 1C.0405(b).
Each Plaintiff was employed by the State of North Carolina as a temporary employee for a period exceeding twelve consecutive months, in violation of the Twelve-Month Rule. Plaintiffs commenced this action, alleging that because they had been employed as temporary employees for more than twelve consecutive months -- in violation of the Twelve-Month Rule -- they were entitled to the " rights, compensation, benefits, and status" of permanent employees. Plaintiffs alleged claims for (1) violations of the North Carolina Administrative Code; (2) violations of the North Carolina Constitution; and (3) breach of contract. Based on these claims, Plaintiffs prayed for relief in the form of monetary damages and costs, including attorneys' fees, in addition to declaratory relief. Plaintiffs also sought class certification for inclusion of all similarly-situated individuals, i.e., those who had been employed by the State as temporary employees for more than twelve consecutive months.
Defendants responded by moving to dismiss Plaintiffs' claims for lack of personal jurisdiction pursuant to N.C. R. Civ. P. 12(b)(2) on grounds of Defendants' sovereign immunity, and pursuant to N.C. R. Civ. P. 12(b)(6) for failure to state a claim for which relief could be granted. In Sanders I, we
affirmed the trial court's Rule 12(b)(2) dismissal of Plaintiffs' claim based on violations of the North Carolina Administrative Code. 183 N.C.App. at 24, 644 S.E.2d at 16. In Sanders II, we affirmed the trial court's Rule 12(b)(6) dismissal of Plaintiffs' constitutional claims; however, we reversed the trial court's dismissal of Plaintiffs' breach of contract claim and remanded the matter " for a declaratory judgment, to declare plaintiffs' status and rights pursuant to the Uniform Declaratory Judgment Act." 197 N.C.App. at 323, 677 S.E.2d at 189. In analyzing Plaintiffs' breach of contract claim, we determined that the Twelve-Month Rule and the other " relevant regulations of the [Commission]" are part of Plaintiffs' employment contracts with Defendants, id. at 320-21, 677 S.E.2d at 187, noting as follows:
There is an agreement between the parties whose term is known and agreed. What is unknown is what are the legal relationships and status of the parties when the contract continues in effect after the expiration of the agreed upon terms.
Id. Accordingly, we instructed the trial court on remand to determine the legal relationship between the parties, including the precise terms of Plaintiffs' employment with Defendants as of the " twelve month and one day mark and beyond." Id. at 323, 677 S.E.2d at 188.
On remand from Sanders II, the parties engaged in extensive discovery regarding Plaintiffs' breach of contract claim, after which Plaintiffs filed motions seeking partial summary judgment on this claim; a declaratory judgment construing their rights under the contract pursuant to N.C. Gen. Stat. § 1-253; and class action certification. Defendants likewise moved for summary judgment with respect to Plaintiffs' breach of contract claim.
Following a hearing on these matters, the trial court entered an order on 18 December 2012 granting relief to both Plaintiffs and Defendants. Specifically, the trial court declared that Plaintiffs' status as temporary employees did not convert to that of permanent employees after twelve months and that they were entitled only to the wages for which they had bargained and already received for the period that they had worked as temporary employees beyond the permissible twelvemonth period. Accordingly, the trial court granted Defendants' motion for summary judgment on Plaintiffs' breach of contract claim and denied Plaintiffs' motions for partial summary judgment and for class certification.
The trial court, however, also granted Plaintiffs certain relief; namely, the court enjoined Defendants from future violations of the Twelve-Month Rule; it directed the State Personnel Director and the Office of State Personnel to present to the trial court " a comprehensive plan [hereinafter, the " Comprehensive Plan" ] to assure full compliance with the mandates of North Carolina General Statutes 126-3(b)(8) and (9)[; ]" and it taxed Defendants " with the costs of this action, including attorney fees as provided by law [hereinafter, " Attorneys' Fees Award" ]."
In the present appeal, Plaintiffs seek review of the trial court's order granting Defendants' motion for summary judgment and denying their motions for partial summary judgment and for class certification. In Defendants' cross-appeal, Defendants seek review of the trial court's Attorneys' Fees Award.
The threshold issue presented is whether and to what extent this Court has jurisdiction over the parties' appeals. " Generally, an interlocutory order is not immediately appealable." Builders Mut. Ins. Co. v. Meeting Street Builders, LLC, __ N.C.App. __, __, 736 S.E.2d 197, 199 (2012). An order is interlocutory where it " does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). A party may immediately appeal from an interlocutory order, however, where the issue has been certified by the trial court for immediate appellate review pursuant to N.C. R. Civ. P. 54(b) or where the interlocutory order " deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379,
444 S.E.2d 252, 253 (1994) (internal citations omitted).
In the present case, the trial court order resolves the entire controversy except with respect to two matters. First, although the trial court has entered the Attorneys' Fees Award, the court has not yet determined the amount of the Award. Second, further action is required with respect to the Comprehensive Plan, which the trial court has ordered certain Defendants to prepare and present to the court for review.
Our Supreme Court has held that " [a]n order that completely decides the merits of an action  constitutes a final judgment for purposes of appeal even when the trial court reserves for later determination collateral issues such as attorney's fees and costs. " Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801 (2013) (emphasis added). Therefore, while our Supreme Court considers the Attorneys' Fees Award a " collateral issue," it is unclear whether the presentation and review of the Comprehensive Plan also constitutes a " collateral issue." Notwithstanding, the trial court has certified the issues raised in Plaintiffs' appeal for immediate appellate review. Accordingly, we have jurisdiction to address the issues raised in Plaintiffs' appeal.
Regarding Defendants' cross-appeal, Defendants are not challenging the trial court's injunction prohibiting future violations of the Twelve-Month Rule or the directive to present the Comprehensive Plan to the court. Accordingly, we do not address the propriety of those portions of the order. Rather, Defendants only challenge the " collateral issue" of the " Attorneys' Fees Award." In that the trial court left open for future determination the amount Defendants would be taxed, Defendants' appeal of this collateral issue is interlocutory. Since the trial court did not certify the Attorneys' Fees Award issue for immediate ...