# Hill v. Medford

> Court of Appeals of North Carolina · July 1, 2003 · 158 N.C. App. 618

URL: https://www.frixlaw.com/law-library/cases/9851931

## Case

- **Full name:** THOMAS WILLIAM HILL, Plaintiff v. BOBBY MEDFORD, Individually and as Sheriff of Buncombe County; And WESTERN SURETY COMPANY, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** July 1, 2003
- **Citations:** 158 N.C. App. 618; 582 S.E.2d 325; 2003 N.C. App. LEXIS 1225
- **Precedential status:** Published
- **Opinion:** Dissent by Martin
- **Judges:** Hudson, Elmore, Martin
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851931

## How later opinions describe it (automated extraction)

- discussing tort of wrongful discharge

## Opinion text

MARTIN, Judge,
dissenting.
I respectfully dissent. As a public official, if sued in his or her official capacity, a sheriff is protected against tort actions by governmental immunity unless the sheriff purchases a bond pursuant to G.S. § 58-76-5, and then, can only be liable on tort claims to the extent of the amount of that bond. N.C. Gen. Stat. § 58-76-5 (2003); Summey v. Barker, 142 N.C. App. 688 , 544 S.E.2d 262 (2001). No such immunity exists as to claims for breach of contract. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412 (1976). Due to defendant Medford’s purchase of a $20,000 bond, pláintiff may potentially recover up to that amount on his tort claim. Plaintiff may recover a greater amount only through his claim for breach of contract.
*624 North Carolina is an employment at will state. See Kurtzman v. Applied Analytical Indus., 347 N.C. 329 , 493 S.E.2d 420 (1997), reh’g denied, 347 N.C. 586 , 502 S.E.2d 594 (1998). Plaintiff admits that he had no contract with defendant Medford for employment for a definite term, rendering him an at-will employee, but contends that he has a viable claim for breach of contract under the “public policy exception.”
As noted by the majority, the public policy exception to the at-will employment doctrine was originally articulated in Sides v. Duke University, 74 N.C. App. 331 , 328 S.E.2d 818 , disc. review denied, 314 N.C. 331 , 335 S.E.2d 13 (1985), overruled on other grounds by Kurtzman, supra. In Sides , this Court reviewed the dismissal of plaintiff’s claims for, inter alia, tort and breach of contract and held that under the facts alleged the plaintiff had stated a claim in tort for wrongful discharge. Id. at 343 , 328 S.E.2d at 826-27 . The Court then analyzed whether the plaintiff had stated a claim for breach of contract:
Even if the employment contract was at will, for the same public policy reasons stated above, we hold that defendant Duke had no right to terminate it for the unlawful purposes alleged in the complaint, and that plaintiffs claim for breach of contract with resulting damages has been sufficiently alleged against the defendant Duke.
Id. at 344-45 , 328 S.E.2d at 828 . The majority-relies on this language in Sides in holding plaintiffs breach of contract claim may stand despite his at-will status. The result is that plaintiff and other at-will employees who find themselves in similar situations hereafter may allege two separate and independent claims for relief, one in tort and one in contract. I cannot agree with this result for several reasons.
First of all, the Court’s holding in Sides that the plaintiff had stated a claim for breach of contract despite her at-will status was unnecessary to its decision and was dictum. After making the statement, the Court went on to say:
The additional consideration that the complaint alleges, [the plaintiff’s] move from Michigan, was sufficient, we believe, to remove plaintiff’s employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties.
*625 Id. at 345 , 328 S.E.2d at 828 . The holding that relocation for employment provides “additional consideration” sufficient to establish employment contract was later overturned in Kurtzman, supra. Admittedly, the opinion in Sides is confusing in that it appears to hold that the plaintiff stated a claim for wrongful discharge in tort, a claim for breach of contract for at-will employment based on wrongful discharge, and a claim for breach of contract based on an alleged contract. Sides , however, should be interpreted in the light of guidance from later case law precedent.
The public policy exception to the at-will employment doctrine was not expressly approved by our Supreme Court until Coman v. Thomas Mfg. Co., 325 N.C. 172 , 381 S.E.2d 445 (1989). Although the Supreme Court’s opinion in Coman does not specify whether the plaintiff’s claim sounded in tort or contract, the opinion of this Court, and the record, makes clear that the plaintiff had alleged a claim in tort. See Coman v. Thomas Mfg. Co., 91 N.C. App. 327 , 371 S.E.2d 731 (1988). Therefore, the Supreme Court’s opinion in Coman recognized the tort of wrongful discharge, but did not “acknowledge [] the possibility” of a breach of contract claim for discharge in violation of public policy by an at-will employee. In addition, the language in Coman and Sides cited by the majority as emphasizing the contractual nature of at-will employment should not be amplified into a basis for a breach of contract claim. An at-will employment relationship may be referred to as a “ ‘contract at will,’ ” Coman, 325 N.C. at 175 , 381 S.E.2d at 447 , without converting it into something it is not.
Finally, although Sides seemingly held that claims for the tort of wrongful discharge and for breach of contract could stand on the same facts, several cases have since clarified this point. In Houpe v. City of Statesville, 128 N.C. App. 334 , 497 S.E.2d 82 , disc. review denied, 348 N.C. 72 , 505 S.E.2d 871 (1998), the Court upheld the denial of the defendant’s motion for judgment on the pleadings for, inter alia, the plaintiff’s claims of wrongful discharge and breach of contract. However, the Court stated that:
Preliminarily, we assume plaintiff’s wrongful termination and breach of contract claims to have been advanced in the alternative. Wrongful termination may be asserted “only in the context of employees at will,” and not by an employee “employed for a definite term or . . . subject to discharge only for ‘just cause.’ ”
Id. at 343 , 497 S.E.2d at 88-89 (citations omitted) (emphasis added). I note that the present plaintiff seems to acknowledge a mutual exclu *626 sivity for the tort of wrongful discharge and breach of contract in his complaint, wherein he prays, inter alia, for the following:
The damages of defendant, in his official capacity in an amount exceed [sic] $10,000 on his claim for breach of contract, or in the alternative, for damages in a like amount on his claim for wrongful discharge;....
The Houpe Court then went on to declare that:
A viable claim for breach of an employment contract must allege the existence of contractual terms regarding the duration or means of terminating employment. Plaintiff’s complaint addressed this requirement by alleging that the City’s charter, ordinances and written policies created an agreement whereby he would not be terminated except for “good cause”....
Id. at 344 , 497 S.E.2d at 89 . The majority declares that Houpe does not apply to the present case because the plaintiff “alleged breach of an existing contract of employment.” I believe Houpe is relevant because it states that the plaintiff only had an alternative claim for breach of contract because he had alleged an employment contract. To interpret Houpe otherwise, as the majority has apparently done, with respect to the instant case, would lead to the result that plaintiffs who allege wrongful termination of their at-will employment and breach of an employment contract would only be able to recover under one theory or the other, but plaintiffs who allege wrongful termination of their at-will employment and admit to the absence of any employment contract would be able to recover in both tort and contract. See Doyle v. Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 174 , 557 S.E.2d 577, 577 (2001) (noting in context of claim by contractual employee that contractual employee limited to breach of contract and tort of wrongful discharge available only to at-will employee), disc. review denied, 355 N.C. 348 , 562 S.E.2d 278 (2002); Trexler v. Norfolk S. Ry. Co., 145 N.C. App. 466, 471-72 , 550 S.E.2d 540, 543 (2001) (holding union employee subject to discharge pursuant to terms of collective bargaining agreement had cause of action in contract, but not for tort of wrongful discharge).
Although the majority correctly points out that Doyle and Trexler involved allegations of written contracts, they did not involve alternative allegations of at-will employment as did Houpe . To the extent Sides may have appeared to allow a contractual employee to allege both breach of contract and the tort of wrongful discharge, Houpe , *627 Doyle , and Trexler have made clear that such was not the case. Following the logic of these cases, it is a stretch to conclude the reverse: that an at-will employee is entitled to two avenues of relief for wrongful discharge while an employee promised continued employment under contract is limited to only one.
The majority also glosses over Paquette v. County of Durham, 155 N.C. App. 415 , 573 S.E.2d 715 (2002), disc. review denied, 357 N.C. 165 , - S.E.2d — (1 May 2003), and does not confront Vereen v. Holden, 121 N.C. App. 779 , 468 S.E.2d 471 (1996), remanded for reh’g on other grounds, 345 N.C. 646 , 483 S.E.2d 719 (1997). In both of these cases, an at-will employee alleged claims for the tort of wrongful discharge and breach of contract. In Paquette , the plaintiffs claim for breach of contract was upheld because she alleged she had performed work for the defendants for which she had not been paid. In Vereen , the complaint was held to state a claim for the tort of wrongful discharge, but not breach of contract, where allegations in the complaint were insufficient to allege an employment contract. If a claim for breach of contract for termination of at-will employment in violation of public policy was viable, it stands to reason that the Courts in Houpe, Paquette, and Vereen would have held the complaints at issue in those cases did, in fact, state such claims. N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), (c) (2003). At the very least, those cases, along with Doyle and Trexler , are difficult to reconcile with the majority’s holding that the “public policy exception” to the at-will employment doctrine was intended to authorize causes of action in both tort and contract for at-will employees.
For all these reasons, I conclude that an employee terminable at will, who alleges wrongful discharge in violation of public policy, does not have a claim for breach of contract against his or her employer on that basis. The trial court’s denial of defendants’ motion for summary judgment on plaintiff’s contract claim should be reversed. Contrary to the majority’s final assertions, this conclusion would not leave plaintiff without remedy, much less “penalize” him, as his tort claim against defendant is still extant, though his potential recovery is limited by the doctrine of governmental immunity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851931. Public record. Not legal advice.