in the Court of Appeals 2 November 2016.
by plaintiff from order entered 18 December 2015 by Judge J.
Carlton Cole in Chowan County No. 13 CVS 88 Superior Court.
Maginnis Law, PLLC, by Edward H. Maginnis and T. Shawn
Howard, for plaintiff-appellant.
Carlyle Sandridge & Rice, LLP, by Theresa M. Sprain and
Lawrence A. Moye, IV, for defendant-appellee.
Gene Rountree (plaintiff), a former tax administrator,
retired from his employment with Nash County before accepting
a new position with Chowan County (defendant) on a limited
basis. After working for nearly two years, plaintiff learned
that the terms of his employment with defendant had rendered
him ineligible to receive retirement benefits. He resigned
and sued defendant for breach of contract and negligent
misrepresentation. The trial court granted summary judgment
for defendant on both claims.
appeals, arguing that the trial court erred in granting
summary judgment on his negligent misrepresentation claim.
Upon review, we hold that summary judgment for defendant was
proper because (1) plaintiff failed to forecast evidence
which, taken as true, would establish that defendant owed
plaintiff a duty of care apart from defendant's purported
contractual obligation; and (2) assuming the existence of a
separate legal duty, plaintiff failed to produce evidence
tending to show that his reliance was justifiable. Affirmed.
2009, defendant was experiencing financial difficulties. It
had been forced to increase taxes twice in the preceding year
to fund its operations and, to make matters worse, its
longtime tax administrator resigned unexpectedly. Plaintiff
was referred to Peter Rascoe, the Chowan County manager, as a
potential replacement. Plaintiff had served as a tax
administrator, first in Edgecombe County and then Nash
County, before his retirement in February 2009. Impressed
with plaintiff's experience and reputation, Rascoe
contacted plaintiff to discuss the position.
retiree, plaintiff was receiving benefits through the Local
Government Employees' Retirement System (LGERS). During
his initial meeting with Rascoe, plaintiff expressed interest
in the tax administrator position but made clear that he
wanted to protect his retirement benefits. After their
meeting, Rascoe sent plaintiff an offer letter describing the
terms of the proposed employment agreement. The letter
provided in part:
As a retiree realizing benefits from the local government
retirement system and health insurance benefits from your
former employer, you have expressed interest in the position
on a contract basis. I am prepared to offer you such an
arrangement along the parameters we discussed. As such, the
position if accepted by you, would be an "at will"
contract relationship. I am prepared to offer such an
arrangement to you for at least a term of twenty-four months
with the hope that it may continue for a longer period if
both parties are in agreement.
more specific conditions, the letter stipulated that
plaintiff would receive an annual salary of $46, 800.00, or
$30.00 per hour based on the number of actual hours worked
per week, with a target of a thirty-hour work week. Defendant
would not withhold retirement contributions, as plaintiff was
already receiving those benefits.
an attorney, knew the state had employment restrictions in
place for its retirees which, if not observed, could
disqualify them from their retirement benefits. During his
deposition, Rascoe explained that he was acting in
defendant's interest when he drafted the letter although
he tried to address plaintiff's concerns. He did not
represent or guarantee that plaintiff's benefits would be
safe under the proposed terms of employment but he did
believe that plaintiff would find them suitable. Rascoe
testified: "It was my understanding that we had
presented him . . . with an arrangement that he could agree
to that he would have-he could make the determination whether
or not it affected his retirement . . ., but it was our
understanding . . . of the system that this did that. We
himself was also familiar with LGERS. When he prepared to
retire from his position in Nash County, he had consulted the
State Employee Retirement Handbook, which contained the
benefits eligibility requirements, to determine the amount of
money he could expect to receive in retirement. He
acknowledged during his deposition that he would have been
responsible for maintaining his own benefits eligibility.
According to plaintiff's testimony and affidavit,
however, Rascoe "assured" him that the employment
contract would protect his benefits. Beyond his ...