{ "id": 8524841, "name": "WILLIAM H. WOODARD, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES' RETIREMENT SYSTEM, A corporation; BOARD OF TRUSTEES OF THE NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES' RETIREMENT SYSTEM, A body politic and corporate; DENNIS DUCKER, Director of the Retirement Systems Division and Deputy Treasurer of the State of North Carolina (in his official capacity); HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the North Carolina Local Governmental Employees' Retirement System (in his individual and official capacities); STATE OF NORTH CAROLINA, Defendants-Appellants", "name_abbreviation": "Woodard v. North Carolina Local Governmental Employees' Retirement System", "decision_date": "1993-05-04", "docket_number": "No. 9210SC202", "first_page": "83", "last_page": "87", "citations": [ { "type": "official", "cite": "110 N.C. App. 83" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "424 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524345 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0357-01" ] }, { "cite": "424 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524375 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0378-01" ] }, { "cite": "121 L.Ed.2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "360 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357977 ], "year": 1987, "pin_cites": [ { "page": "133-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0132-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 }, { "cite": "36 S.E. 287", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1900, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "126 N.C. 852", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662847 ], "year": 1900, "pin_cites": [ { "page": "858" } ], "opinion_index": 0, "case_paths": [ "/nc/126/0852-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "382", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "363", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "273 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "258", "parenthetical": "quoting Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950) (emphasis added" }, { "page": "258" } ], "opinion_index": 0 }, { "cite": "301 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569785 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "580", "parenthetical": "quoting Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950) (emphasis added" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0561-01" ] }, { "cite": "325 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526783 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0363-01" ] }, { "cite": "187 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547056 ], "year": 1972, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0107-01" ] }, { "cite": "212 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553287 ], "year": 1975, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0307-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-294", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 494, "char_count": 10233, "ocr_confidence": 0.728, "pagerank": { "raw": 5.161971735144276e-07, "percentile": 0.9395669400030658 }, "sha256": "b6629119aef8fc963da6418d26e6484594548ac90ba5f37b284830778dbd58f5", "simhash": "1:ab29d763156f88e8", "word_count": 1660 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WYNN concur." ], "parties": [ "WILLIAM H. WOODARD, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES\u2019 RETIREMENT SYSTEM, A corporation; BOARD OF TRUSTEES OF THE NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES\u2019 RETIREMENT SYSTEM, A body politic and corporate; DENNIS DUCKER, Director of the Retirement Systems Division and Deputy Treasurer of the State of North Carolina (in his official capacity); HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the North Carolina Local Governmental Employees\u2019 Retirement System (in his individual and official capacities); STATE OF NORTH CAROLINA, Defendants-Appellants" ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiff filed a declaratory judgment action against defendants to determine benefits due him following an amendment to the retirement disability statute which covers local government employees in this State. Defendants filed a motion to dismiss the action; the motion was denied. Defendants appealed the denial of their motion to dismiss to this Court. While the appeal was pending, the trial court entered an order granting plaintiff partial and full summary judgment, and denying defendants\u2019 motion for summary judgment. Because the trial court lacked jurisdiction to determine the summary judgment motions, we vacate the order of the trial court. Pertinent facts and procedural history follow.\nPlaintiff brought this action on 11 January 1991 seeking a declaratory judgment and damages relating to an amendment, effective 1 July 1982, to the retirement disability statute which governs local government employees in North Carolina. On 28 June 1991, the trial court granted plaintiff\u2019s motion for class certification, and denied defendants\u2019 motion to dismiss plaintiff\u2019s complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b). Defendants filed notice of appeal from the orders denying their motion to dismiss on 3 July 1991. On 26 August 1991, plaintiff filed a motion for partial summary judgment on the issue of impairment of contract. In response, on 3 September, the defendants moved to remove the motion from the calendar for lack of jurisdiction or in the alternative to continue the hearing on the motion until the case was resolved on appeal. In an order dated 22 November, the trial court denied defendants\u2019 motion for removal of the case from the calendar or for a continuance. The trial court proceeded to hear arguments on plaintiff\u2019s motion for partial summary judgment and on defendants\u2019 motion for summary judgment as to all liability claims. On 16 January 1992, the trial court granted plaintiff\u2019s motion for partial summary judgment on the impairment of contract claim, denied defendants\u2019 motion for summary judgment, and granted summary judgment to plaintiff as to all issues of liability. Defendants filed notice of appeal on 23 January 1992; plaintiff cross-appealed.\nN.C. Gen. Stat. \u00a7 1-294 (1983) states:\nWhen an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.\nThe scope of the stay, which becomes operative following the appeal of a judgment, is well-established by case law. In general, an appeal takes the case out of the jurisdiction of the trial court. Carpenter v. Carpenter, 25 N.C. App. 307, 308, 212 S.E.2d 915, 916 (1975). An appeal removes a case from the trial court which is thereafter without jurisdiction to proceed on the matter until the case is returned by mandate of the appellate court. Upton v. Upton, 14 N.C. App. 107, 109, 187 S.E.2d 387, 388 (1972). See also, Jenkins v. Wheeler, 72 N.C. App. 363, 325 S.E.2d 4 (1985). \u201cIt is also well settled that an appeal, even of an interlocutory order, \u2018operates as a stay of all proceedings in the [lower court] relating to issues included therein until the matters are determined in the [appellate court].\u2019 \u201d Lowder v. Mills, Inc., 301 N.C. 561, 580, 273 S.E.2d 247, 258 (1981) (quoting Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950) (emphasis added).\nOn the other hand, the statute permits the court below to \u201cproceed upon any other matter included in the action and not affected by the judgment appealed from,\u201d N.C. Gen. Stat. \u00a7 1-294 (emphasis added), including the jurisdiction to hear motions and orders, so long as they do not concern the subject matter of the suit. See Herring v. Pugh, 126 N.C. 852, 858, 36 S.E. 287, 289 (1900). Plaintiff argues the trial court was not divested of its jurisdiction to hear the summary judgment motions following the appeal of the motions to dismiss. We disagree.\nDefendants advanced several grounds in their motions to dismiss plaintiff\u2019s cause of action. Defendants asserted that (1) defendants other than the State were not parties to and had not breached any contract with plaintiff which may exist; (2) defendants were not persons subject to suit within the meaning of 42 U.S.C. \u00a7 1983; (3) defendants were protected from suit under 42 U.S.C. \u00a7 1983 by reason of the doctrine of qualified immunity; (4) defendants were protected from suit for any state claims by reason of the doctrine of official immunity; (5) plaintiff had not stated a claim for breach of fiduciary duty against certain defendants; and (6) plaintiffs suit was barred pursuant to the doctrine of sovereign immunity. Although normally the denial of a motion to dismiss is interlocutory and not immediately appealable, this Court has held that the doctrine of sovereign immunity presents a question of personal jurisdiction and an appeal of a motion to dismiss based on this ground is immediately appealable. See Zimmer v. North Carolina Dep\u2019t of Transp., 87 N.C. App. 132, 133-34, 360 S.E.2d 115, 116 (1987). Furthermore, our Supreme Court has held recently that the denial of a motion for summary judgment which was based upon an immunity defense to a section 1983 claim affects a substantial right and is also immediately appealable. Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied, Durham v. Corum, --- U.S. ---, 121 L.Ed.2d 431 (1992).\nThe issues raised and arguments furthered by the parties at the summary judgment hearing were virtually identical to those relating to the defendants\u2019 motion to dismiss. We cannot say that the matters reviewed by the lower court at the summary judgment hearing were unaffected by the appeal of the denial of defendants\u2019 motion to dismiss. Admittedly, the defendants\u2019 appeal of the motion to dismiss presented questions which were interlocutory. However, this Court, in the interest of judicial economy and pursuant to N.C.R. App. P. 21(a)(1), addressed these untimely iss\u00faes when rendering its opinion in Woodard et al. v. North Carolina Local Governmental Employees\u2019 Retirement System et al., 108 N.C. App. 378, 424 S.E.2d 431 (1993), and in the companion case of Faulkenbury et al. v. Teachers\u2019 and State Employees\u2019 Retirement System of North Carolina, et al., 108 N.C. App. 357, 424 S.E.2d 420 (1993). In Woodard and Faulkenbury, we reversed the lower court\u2019s denial of defendants\u2019 motion to dismiss plaintiff\u2019s action pursuant to 42 U.S.C. \u00a7 1983 and plaintiff\u2019s claim for breach of fiduciary duty. We affirmed the trial court\u2019s denial of defendants\u2019 motion to dismiss on the issue of constitutional impairment of obligation of contract.\nThe perfection of, or docketing of, an appeal relates back to the time of giving notice of the appeal and operates as a stay of proceedings within the meaning of the statute. Lowder, 301 N.C. at 580, 273 S.E.2d at 258. In this case, the notice of the appeal of the denial of defendants\u2019 motion to dismiss was given on 2 July 1991. The entry of the order granting partial summary judgment to plaintiffs, denying defendants\u2019 motion for summary judgment, and entering summary judgment for plaintiff occurred on 16 January 1992. Because the stay was in force at the time when the trial court heard the motions for summary judgment, the court lacked jurisdiction to enter the 16 January order. The order of the trial court must be\nVacated.\nJudges GREENE and WYNN concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Marvin Schiller; and Womble Carlyle Sandridge & Rice, by G. Eugene Boyce, Donald L. Smith, and Susan S. McFarlane, for plaintiff appellee, cross-appellant.", "Attorney General Lacy H. Thornburg, by Senior Deputy Attorney General Edwin M. Speas, Jr., Special Deputy Attorneys General Tiare B. Smiley and Norma S. Harrell, for defendant appellants, cross-appellees." ], "corrections": "", "head_matter": "WILLIAM H. WOODARD, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES\u2019 RETIREMENT SYSTEM, A corporation; BOARD OF TRUSTEES OF THE NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES\u2019 RETIREMENT SYSTEM, A body politic and corporate; DENNIS DUCKER, Director of the Retirement Systems Division and Deputy Treasurer of the State of North Carolina (in his official capacity); HARLAN E. BOYLES, Treasurer of the State of North Carolina and Chairman of the Board of Trustees of the North Carolina Local Governmental Employees\u2019 Retirement System (in his individual and official capacities); STATE OF NORTH CAROLINA, Defendants-Appellants\nNo. 9210SC202\n(Filed 4 May 1993)\nAppeal and Error \u00a7 191