{ "id": 8374974, "name": "VONNIE MONROE HICKS, III, Plaintiff v. WAKE COUNTY BOARD OF EDUCATION, Defendant", "name_abbreviation": "Hicks v. Wake County Board of Education", "decision_date": "2007-12-04", "docket_number": "No. COA07-243", "first_page": "485", "last_page": "491", "citations": [ { "type": "official", "cite": "187 N.C. App. 485" } ], "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": "624 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634918 ], "year": 2006, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0620-01" ] }, { "cite": "612 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632828 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0428-01" ] }, { "cite": "641 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637918 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "696", "parenthetical": "quoting McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005)" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0695-01" ] }, { "cite": "483 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "429-30" }, { "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "345 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53926 ], "year": 1997, "pin_cites": [ { "page": "694-95" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0683-01" ] }, { "cite": "581 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "423", "parenthetical": "\"a cause of action accrues as soon as the right to institute and maintain a suit arises\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491505 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "178-79", "parenthetical": "\"a cause of action accrues as soon as the right to institute and maintain a suit arises\"" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0170-01" ] }, { "cite": "350 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "378-79", "parenthetical": "holding the applicable statute of limitations for a claim brought under N.C.G.S. 115C-325 is the three-year statute in N.C.G.S. 1-52(2)" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358665 ], "year": 1986, "pin_cites": [ { "page": "411-12", "parenthetical": "holding the applicable statute of limitations for a claim brought under N.C.G.S. 115C-325 is the three-year statute in N.C.G.S. 1-52(2)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0408-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(2)", "parenthetical": "stating a plaintiff must file an action within three years when the claim is \"[u]pon a liability created by statute\"" } ], "opinion_index": 0 }, { "cite": "360 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790975 ], "year": 2006, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0280-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "170 N.C. App. 422", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005714 ], "year": 2005, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0422-01" ] }, { "cite": "181 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376264 ], "year": 2007, "pin_cites": [ { "page": "744", "parenthetical": "quoting McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0742-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(1)" }, { "page": "(1)", "parenthetical": "stating a plaintiff must file an action within two years when the claim is \"against a local unit of government upon a contract, obligation or liability arising out of a contract, express or implied\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 579, "char_count": 12556, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20319736787743223 }, "sha256": "9e7bee2d3a2b8039fec3232bd9ac79f03f6bcfb8a2c8e070e4b9b16c62924d47", "simhash": "1:80ef56d287abb460", "word_count": 2060 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and GEER concur." ], "parties": [ "VONNIE MONROE HICKS, III, Plaintiff v. WAKE COUNTY BOARD OF EDUCATION, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nVonnie Monroe Hicks, III (plaintiff) appeals from an order entered 11 October 2006 granting summary judgment in favor of the Wake County Board of Education (defendant). For the reasons stated herein, we affirm the order of the trial court.\nFacts\nIn August of 1999, plaintiff was hired to teach at Enloe High School in the Wake County Public School System (WCPSS). Plaintiff previously taught at a variety of public and private schools in both North Carolina and California. As part of the hiring process, plaintiff submitted a written application to WCPSS Human Resources, to which he attached a multi-page resume. While plaintiffs resume states he taught in Winston-Salem/Forsyth County schools from 1984 through 1996, his application form indicates he was a teacher there from 1994 through 1996. The WCPSS application form also contains the questions \u201cHave you ever received tenure in another school system?\u201d and \u201cIf so, when and where?\u201d Plaintiff left both questions blank. Plaintiff knew that he had previously obtained career status in a North Carolina school system, but he did not reveal this information during the application and hiring process with WCPSS.\nPlaintiff was aware by the summer of 2001 that he should have received career status in WCPSS. In December 2002, plaintiff received an e-mail from a secretary at Ms school asMng if 2003 was his tenure year. Plaintiff replied that he thought this had already happened, but that \u201cI am easy \u2014 -just want to get it right.\u201d\nIn the Spring of 2003, near the end of plaintiff\u2019s fourth year at Enloe High School, plaintiff was informed by an assistant principal that he would be observed frequently because he was in his \u201ctenure year.\u201d Again, plaintiff responded that he thought he already had tenure. On 2 April 2003, plaintiff sent a memorandum to Enloe High School\u2019s administration stating, in pertinent part, that he was concerned to hear \u201conce again\u201d that he was considered a probationary teacher and that he preferred \u201cteaching at Enloe to receiving two years of monthly salary cheques for not doing so.\u201d\nThe Wake County Board of Education subsequently voted to grant plaintiff career status as a teacher in WCPSS, and plaintiff was notified of this decision by letter dated 27 May 2003. Plaintiff admits that he has received his full salary from WCPSS and was not financially prejudiced.\nProcedural History\nOn 15 June 2005, plaintiff filed a complaint in Wake County Superior Court alleging claims for a declaratory judgment as to his rights under N.C. Gen. Stat. \u00a7 115C-325 and for breach of contract. Defendant filed an answer on 19 August 2005, raising, inter alia, the affirmative defenses of estoppel and a two-year statute of limitations applicable to contract claims against school boards. Defendant filed a motion for summary judgment on 22 June 2006, once again raising, inter alia, the affirmative defenses of estoppel and a two-year statute of limitations applicable to contract claims against school boards pursuant to N.C. Gen. Stat. \u00a7 1-53(1). Plaintiff filed a response to the motion for summary judgment on 28 September 2006. On 11 October 2006, the trial court entered an order granting summary judgment based upon the two-year statute of limitations and the doctrine of estoppel. Plaintiff appeals.\nPlaintiff raises the issues of whether the trial court erred by granting summary judgment in favor of defendant based upon: (I) plaintiff\u2019s claim being barred by a two-year statute of limitations as his right to bring this action accrued on 16 June 2001; and (II) the doctrine of estoppel.\nStandard, of Review\nUnder Rule 56(c) of the North Carolina Rules of Civil Procedure, summary judgment \u201cshall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). \u201c \u2018The burden is upon the moving party to show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.\u2019 \u201d Esposito v. Talbert & Bright, Inc., 181 N.C. App. 742, 744, 641 S.E.2d 695, 696 (2007) (quoting McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005)). One means by which the moving party may meet its burden is by showing the opposing party \u201c \u2018cannot surmount an affirmative defense which would bar the claim.\u2019 \u201d Id. (quoting Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). \u201cOn appeal, this Court reviews an order granting summary judgment de novo.\u201d Id. at 744, 641 S.E.2d at 697 (citing McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006)).\n/\nPlaintiff first argues the trial court erred in applying the wrong statute of limitations to his claim for declaratory judgment and in holding this claim was barred by this statute of limitations. Plaintiff concedes that the trial court did not err in granting summary judgment as to his claim for relief for breach of contract. We agree that the trial court applied the wrong statute of limitations to his claim for declaratory judgment; however, even using the correct statute of limitations, plaintiff is still barred from bringing his claim.\nPlaintiff\u2019s claim for declaratory judgment is founded upon the requirements set forth in N.C. Gen. Stat. \u00a7 115C-325, the applicable version of which provided:\nEmployment of a Career Teacher. \u2014 A teacher who has obtained career status in any North Carolina public school system need not serve another probationary period of more than two years. The board may grant career status immediately upon employing the teacher, or after the first or second year of employment. If a majority of the board votes against granting career status, the teacher shall not teach beyond the current term. If after two years of employment, the board fails to vote on the issue of granting career status:\na. It shall not reemploy [sic] the teacher for a second consecutive year;\nb. As of June 16, the teacher shall be entitled to one month\u2019s pay as compensation for the board\u2019s failure to vote upon the issue of granting career status; and\nc. The teacher shall be entitled to one additional month\u2019s pay for every 30 days beyond June 16 that the board fails to vote upon the issue of granting career status.\nN.C. Gen. Stat. \u00a7 115C-325(c)(2) (2001).\nThe trial court held plaintiff\u2019s claim was barred by a two-year statute of limitations pursuant to N.C. Gen. Stat. \u00a7 1-53(1) (2005) (stating a plaintiff must file an action within two years when the claim is \u201cagainst a local unit of government upon a contract, obligation or liability arising out of a contract, express or implied\u201d). Plaintiff\u2019s claim for declaratory judgment is not based upon any contract with defendant,. but rather is based on a liability created by statute and thus a three-year statute of limitations applies. N.C. Gen. Stat. \u00a7 1-52(2) (2005) (stating a plaintiff must file an action within three years when the claim is \u201c[u]pon a liability created by statute\u201d); see also Rose v. Currituck County Bd. of Educ., 83 N.C. App. 408, 411-12, 350 S.E.2d 376, 378-79 (1986) (holding the applicable statute of limitations for a claim brought under N.C.G.S. 115C-325 is the three-year statute in N.C.G.S. 1-52(2)). However, plaintiff\u2019s claim for declaratory judgment is still barred by the three-year statute of limitations as the trial court did not err in finding plaintiff\u2019s right to bring this claim arose on 16 June 2001.\nDefendant hired plaintiff as a teacher in August of 1999 and because plaintiff had obtained career status in the Winston-Salem/Forsyth public school system, defendant was required to vote on plaintiff\u2019s career status by 15 June 2001. N.C.G.S. \u00a7 115C-325(c)(2) (2001). Defendant did not vote on plaintiff\u2019s career status by 15 June 2001 and the consequences for its failure to do so, including plaintiff\u2019s right to sue, began on 16 June 2001. Id.; Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 178-79, 581 S.E.2d 415, 423 (2003) (\u201ca cause of action accrues as soon as the right to institute and maintain a suit arises\u201d). Plaintiff argues, however, that defendant\u2019s failure to vote on his career status constitutes a continuing wrong or continuing violation tolling the statute of limitations.\nOur Supreme Court has \u201crecognized the \u2018continuing wrong\u2019 or \u2018continuing violation\u2019 doctrine as an exception to the general rule.\u201d Williams, 357 N.C. at 179, 581 S.E.2d at 423 (citing Faulkenbury v. Teachers\u2019 & State Employees\u2019 Ret. Sys., 345 N.C. 683, 694-95, 483 S.E.2d 422, 429-30 (1997)). \u201cWhen this doctrine applies, a statute of limitations does not begin to run until the violative act ceases.\u201d Id,. (citations and quotations omitted). To determine whether plaintiff is subject to a continuing violation,\nwe examine [the] case under a test that considers the particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm alleged .... In particular, we must examine the wrong alleged by [plaintiff] to determine if the purported violation is the result of continual unlawful acts, each of which restarts the running of the statute of limitations, or if the alleged wrong is instead merely the continual ill effects from an original violation.\nId. (internal citations and quotations omitted).\nDefendant contends that because N.C.G.S. \u00a7 115C-325(c)(2)(c) provides that a teacher is entitled to an additional month\u2019s pay every thirty days that a school board fails to vote upon the issue of granting the teacher\u2019s career status, each month a school board fails to vote constitutes a new and continuing wrong against plaintiff. We disagree.\nN.C. Gen. Stat. \u00a7 115C-325(c)(2)(c) provides a mechanism for calculating the amount of a school board\u2019s liability for failing to timely vote on a teacher\u2019s career status. There is no statutory requirement that a school board must consider a teacher\u2019s career status once each month following the original 15 June deadline. Rather, a teacher\u2019s entitlement to an additional month\u2019s pay for every thirty days that a school board fails to vote upon the issue of granting the teacher\u2019s career status is a continual ill effect from the original violation. Therefore, plaintiff\u2019s right to bring his claim under N.C.G.S. \u00a7 115C-325(c)(2) arose on 16 June 2001. Plaintiff did not file his complaint until 15 June 2005 and his claim is barred by the three-year statute of limitations. This assignment of error is overruled.\nIn light of our ruling on this assignment of error, we need not address plaintiff\u2019s remaining argument.\nAffirmed.\nJudges STEELMAN and GEER concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Thomas Hicks & Associates, PLLC, by Thomas S. Hicks, for plaintiff-appellant.", "Tharrington Smith, L.L.P., by Jonathan A. Blumberg and Deborah A. Stagner, for defendant-appellee." ], "corrections": "", "head_matter": "VONNIE MONROE HICKS, III, Plaintiff v. WAKE COUNTY BOARD OF EDUCATION, Defendant\nNo. COA07-243\n(Filed 4 December 2007)\nStatutes of Limitation and Repose\u2014 declaratory judgment\u2014 liability created by statute instead of contract\nAlthough the trial court erred by applying the wrong statute of limitations in a declaratory judgment action to determine plaintiff teacher\u2019s rights under N.C.G.S. \u00a7 115C-325, even using the correct statute of limitations plaintiff is still barred from bringing his complaint, because: (1) plaintiff\u2019s claim for declaratory judgment was not based upon any contract with defendant, but rather was based on a liability created by statute requiring a three-year statute of limitations under N.C.G.S. \u00a7 1-52(2); (2) plaintiff\u2019s right to bring this claim arose on 16 June 2001 based on defendant\u2019s failure to vote on plaintiff\u2019s career status by 15 June 2001, and plaintiff did not file his complaint until 15 June 2005; and (3) although plaintiff contends defendant\u2019s failure to vote on his career status constituted a continuing wrong or continuing violation tolling the statute of limitations, there was no statutory requirement that a school board must consider a teacher\u2019s career status once each month following the original 15 June deadline since N.C.G.S. \u00a7 115C-325(c)(2)(c) provides a mechanism for calculating the amount of a school board\u2019s liability for failing to timely vote on a teacher\u2019s career status.\nAppeal by plaintiff from an order entered 11 October 2006 by Judge Donald Stephens in Wake County Superior Court. Heard in the Court of Appeals 11 October 2007.\nThomas Hicks & Associates, PLLC, by Thomas S. Hicks, for plaintiff-appellant.\nTharrington Smith, L.L.P., by Jonathan A. Blumberg and Deborah A. Stagner, for defendant-appellee." }, "file_name": "0485-01", "first_page_order": 515, "last_page_order": 521 }