Opinion
No. COA11–1296.
2012-05-15
Carl PICKNEY, Plaintiff, v. DEPARTMENT OF TRANSPORTATION, Defendant.
Bishop & Smith, PLLC, by Keith A. Bishop, for Plaintiff–Appellant. Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth N. Strickland and Assistant Attorney General Thomas H. Moore, for Defendant–Appellee.
Appeal by plaintiff from judgment entered 22 June 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 21 March 2012. Bishop & Smith, PLLC, by Keith A. Bishop, for Plaintiff–Appellant. Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth N. Strickland and Assistant Attorney General Thomas H. Moore, for Defendant–Appellee.
ERVIN, Judge.
Plaintiff Carl Pickney appeals from a judgment entered by the trial court rejecting his breach of contract and state constitutional claims. On appeal, Plaintiff contends that the trial court erred by (1) making findings of fact which lacked adequate evidentiary support; (2) concluding that Defendant had not breached the parties' settlement agreement; and (3) excusing Defendant's non-performance of the settlement agreement. After careful consideration of Plaintiff's challenges to the trial court's decision in light of the record and the applicable law, we conclude that the trial court's judgment should be affirmed.
I. Factual Background
In 2001, Plaintiff was working for Defendant North Carolina Department of Transportation as an Application Development Manager. After Plaintiff unsuccessfully sought a vacant Information Systems Director II position, he filed employment discrimination charges with the Equal Employment Opportunity Commission. Upon receiving a right to sue letter from the EEOC, Plaintiff filed an employment discrimination action against Defendant in the United States District Court for the Eastern District of North Carolina.
In May 2004, the parties entered into a “Settlement Agreement and Release Of All Claims.” The settlement agreement provided, among other things, that (1) Plaintiff would receive a lump sum payment of $24,000.00; (2) Defendant would increase Plaintiff's annual salary to $86,085.00; (3) Plaintiff's job duties would be changed so as to include completing certain projects assigned to Defendant's IT Division; (4) Defendant would provide Plaintiff with his former office or a comparable work space; (5) Defendant would pay $58,500.00 toward Plaintiff's attorney's fees and costs; and (6) Plaintiff would release any claims he had against Defendant and dismiss any pending claims that he had lodged against Defendant in the United States District Court for the Eastern District of North Carolina and the Office of Administrative Hearings. In addition, Paragraph No. 2 of the settlement agreement provided that “[Plaintiff] may request a job re-allocation or pay grade increase as soon as six months from the date that he assumes his new job duties [and Defendant will] cooperate with such a request.” Finally, Paragraph No. 12 of the settlement agreement stated that the parties agreed to “cooperate fully, to execute any and all supplementary documents, and to take all additional actions that may be necessary to give full force and effect to the terms of [the settlement agreement].”
After the execution of the settlement agreement, Plaintiff and Defendant agreed to modify Plaintiff's job duties pursuant to a “Memo of Agreement,” which provided, among other things, that Plaintiff had “accepted other job duties” as the “Manager [of] Transit & Enterprise Document Management Systems.” In addition, Defendant made a $24,000.00 lump sum payment to Plaintiff; increased Plaintiff's annual salary to $86,085.00; provided Plaintiff with a satisfactory office; and paid Plaintiff's attorney $58,500.00.
In 2005, Plaintiff met with Herb Henderson, Defendant's Director of Human Resources, to discuss whether Plaintiff's position could be reclassified in accordance with the job reallocation provisions of the settlement agreement. After that meeting, Mr. Henderson ordered that a reclassification study be conducted. The resulting study concluded that Plaintiff's position was properly classified as managerial and should not be reclassified to the directorship level. After learning of the study results, Mr. Henderson requested that Plaintiff be interviewed for the purpose of determining whether he possessed information concerning his job responsibilities that might change the study's conclusion. However, Defendant did not reclassify Plaintiff's position after the conclusion of the interview given that none of the information received during that conversation resulted in a change in the study outcome.
Subsequently, Defendant's IT Division adopted a banding system for the purpose of making classification and compensation decisions. Under the banding system, employees performing similar work and possessing similar knowledge, skills and abilities were placed into broad classification groups which were assigned pay ranges based upon current labor market information. The pay grade assigned to each employee was determined based upon the competencies that he or she had demonstrated in his or her particular field, with those competencies categorized as ranging from “contributing” to “journey” to “advanced.” After the adoption of the banding system, Plaintiff's position was reclassified and Plaintiff was categorized as functioning at an “advanced” level. In light of the fact that Plaintiff's $90,002.00 salary was comparable to the salaries paid to other “advanced” IT managers, Plaintiff did not receive a salary increase at that time.
On 19 October 2007, Plaintiff sent a memorandum to Dan DeVane, Defendant's Chief Deputy, requesting that the two “work together on the job reallocation and pay grade increase as specified in the settlement agreement,” that his current position “be reallocated upward to Information Technology Director,” and that his annual salary be adjusted “by a minimum of 10 [percent] reflecting said promotion.” On 25 October 2007, Chief Deputy DeVane responded that “there is a specific process that all employees must follow when seeking to have their positions reallocated or reclassified” and that the previous study concerning Plaintiff's position had determined that the position should not be reclassified to the directorship level. As a result, Chief Deputy DeVane stated that he “[would] have someone from the Classification, Compensation & Policy Unit reevaluate [Plaintiff's] position to see if [his] duties ha [d]increased, particularly [his] supervisory responsibilities, since the job was last studied in 2005 [and that Plaintiff would] be contacted for an interview very soon.” Chief Deputy DeVane did not, however, inform Angela Faulk, Defendant's Human Resources Director, that another reclassification study should be conducted. As a result, Defendant never conducted a reclassification study of the type described in Chief Deputy DeVane's letter.
On 9 December 2008, Plaintiff filed a complaint against Defendant in which he alleged breach of contract and state constitutional claims. More specifically, Plaintiff alleged that Defendant had materially breached the settlement agreement by “(a) failing to grant Plaintiff a raise in pay[;] (b) failing to re-allocate Plaintiff's position[;] (c) limiting, reducing and eliminating many of Plaintiff['s] job duties and responsibilities[;] and (d) failing to engage in the ‘[f]ull [c]ooperation’ promised in [p]aragraph 12 of the [s]ettlement [a]greement.” On two occasions after the filing of Plaintiff's complaint, Defendant's Human Resources Department contacted Plaintiff for the purpose of discussing the possible reclassification of his position. However, Plaintiff indicated that he would prefer to wait until the claims asserted in his complaint had been resolved before engaging in such discussions.
On 12 February 2009, Defendant filed a dismissal motion. On 8 May 2009, Plaintiff filed a motion for partial summary judgment in which he alleged that there were no genuine issues of material fact concerning the extent to which a contract existed between the parties and the extent to which Defendant had materially breached that contract. Defendant's dismissal motion and Plaintiff's motion for partial summary judgment came on for hearing before Judge Kenneth C. Titus at the 2 October 2009 session of Wake County Superior Court. At the conclusion of that hearing, Judge Titus (1) granted Plaintiff's motion for partial summary judgment with respect to the issue of whether a valid contract existed between the parties; (2) denied Plaintiff's motion for partial summary judgment concerning the issue of whether Defendant had materially breached the contract; and (3) denied Defendant's dismissal motion.
On 8 March 2010, Defendant filed its answer to Plaintiff's complaint. On 20 September 2010, Defendant filed a summary judgment motion. Defendant's motion for summary judgment came on for hearing before Judge Paul C. Ridgeway at the 25 October 2010 session of Wake County Superior Court. Subsequently, Judge Ridgeway denied Defendant's motion. On 7 April 2011, Defendant filed a motion to dismiss Plaintiff's constitutional claim on jurisdictional grounds.
The remaining issues in this case came on for trial before the trial court, sitting without a jury, at the 11 April 2011 civil session of Wake County Superior Court. Prior to hearing evidence, the trial court denied Defendant's motion to dismiss Plaintiff's constitutional claim. However, the trial court also indicated that it would allow Defendant to renew its dismissal motion after the presentation of evidence. At the close of the Plaintiff's evidence, Defendant successfully renewed its motion to dismiss Plaintiff's state constitutional claim.
On 22 June 2011, the trial court entered a judgment rejecting Plaintiff's breach of contract claim and ordering that “Plaintiff recover nothing on his claims against the Defendant.” In reaching this determination, the trial court concluded, in pertinent part, that (1) Defendant had complied with all the remaining terms of the settlement agreement; (2) Defendant's failure to conduct another reclassification study did not constitute a material breach of the parties' contract given that the failure to perform the study did not substantially defeat the purpose sought to be achieved by that agreement; (3) the provision allowing Plaintiff to request a reclassification study was not at the “very heart of the [s] ettlement [a] greement;” (4) Defendant had not substantially failed to perform its obligations under the settlement agreement given that it had “previously ... conducted a reclassification study in ... September 2005, and had in fact reclassified the Plaintiff's position in February 2006 via the banding process;” (5) if Defendant's failure to conduct another reclassification study constituted a material breach of the settlement agreement, its failure to conduct the requested study should be excused given that neither Chief Deputy DeVane nor Plaintiff had notified the Classification, Compensation and Policy Unit that such a reevaluation of Plaintiff's position should occur; (6) if Defendant's failure to conduct another reclassification study constituted a material breach of the settlement agreement, Plaintiff had failed to mitigate his damages by requesting that a reclassification study be performed; (7) if Defendant's failure to conduct another reclassification study constituted a material breach of the settlement agreement, Plaintiff's ability to recover for the alleged breach of contract was barred by his failure to notify Chief Deputy DeVane and the Classification, Compensation and Policy Unit that a reclassification study should be performed; and (8) if Defendant's failure to conduct a reclassification study constituted a material breach of the settlement agreement, Plaintiff failed to prove that he was entitled to recover any amount of damages. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
On appeal, Plaintiff contends that the trial court erred by concluding that (1) Defendant did not breach the settlement agreement and (2) any failure on Defendant's part to comply with the settlement agreement was excused. More specifically, Plaintiff argues that Defendant's failure to “take action” on his reallocation request breached the “future cooperation” provision of the settlement agreement, that Defendant had failed to assert a valid defense to that breach, and that the trial court misapprehended the doctrine of prevention in the course of concluding that Defendant's non-compliance with the settlement agreement should be excused. Assuming, without deciding, that Plaintiff's arguments otherwise have merit, we must still affirm the trial court's judgment given that “Plaintiff failed to put on any evidence at trial establishing that he suffered any measureable financial damages because of the Defendant's” breach of the settlement agreement.
“In order to prevail on a claim for breach of contract, a plaintiff's evidence must show a valid contract existed between the parties, the defendant breached the terms of the contract, the facts constituting the breach, and damages resulted from the breach.” Lee Cycle Ctr., Inc., v. Wilson Cycle Ctr., Inc., 143 N.C.App. 1, 10, 545 S.E.2d 745, 751 (citing Claggett v. Wake Forest University, 126 N.C.App. 602, 608, 486 S.E.2d 443, 446 (1997)), aff'd,354 N.C. 565, 556 S.E.2d 293 (2001). “In order to recover compensatory damages in a contract action, plaintiff must show that the damages were the natural and probable result of the acts complained of and must show loss with a reasonable certainty, and damages may not be based upon mere speculation or conjecture.” Pike v. Trust Co., 274 N.C. 1, 17–18, 161 S.E.2d 453, 466 (1968) (citations omitted). “[T]he reasonable certainty standard requires something more than ‘hypothetical or speculative forecasts,’ [but] does not require absolute certainty.” Matthews v. Davis, 191 N.C.App. 545, 551, 664 S.E.2d 16, 21 (2008) (citing McNamara v. Wilmington Mall Realty Corp., 121 N.C.App. 400, 407–08, 466 S.E.2d 324, 329,disc. review denied, 343 N.C. 307, 471 S.E.2d 72 (1996)), disc. review denied,363 N.C. 374, 678 S.E.2d 666 (2009). “So long as the party claiming damages introduces sufficient evidence to permit a reasonable calculation, the fact finder may be left to determine the proper measure of damages.” White v. Thompson, 196 N.C.App. 568, 574, 676 S.E.2d 104, 109–10 (2009) (citing Beroth Oil Co. v. Whiteheart, 173 N.C.App. 89, 96, 618 S.E.2d 739, 745 (2005), appeal dismissed and disc. review denied,360 N.C. 531, 633 S.E.2d 674 (2006)), aff'd, 364 N.C. 47, 691 S.E.2d 676 (2010).
The record developed at trial provided no basis upon which the trial court could have properly calculated an appropriate damage award. See Greensboro Masonic Temple v. McMillan, 142 N.C.App. 379, 382, 542 S.E.2d 676, 679 (2001) (affirming a trial court's decision to involuntarily dismiss a plaintiff's breach of contract claim given that the plaintiff had “failed to prove the damages suffered in the breach of contract claim”). The settlement agreement provided that Plaintiff could “request a job reallocation or pay grade increase” and that Defendant would “cooperate with such a request.” The settlement agreement did not, however, provide Plaintiff with any guarantee that he would, in fact, receive a job reallocation or pay grade increase upon request. As the trial court, in an unchallenged finding of fact, determined, the settlement agreement “contained no provisions ... that the Defendant would either reallocate ... Plaintiff's job position or grant him a pay grade increase if he made a request for either action. The language ... is clear that there was no guaranteed outcome for any request for position reallocation or salary grade increase[.]” Simply put, any claim that Plaintiff had suffered damages stemming from Defendant's failure to conduct a reclassification study would amount to a “hypothetical or speculative forecast[ ]” that necessarily assumed that the performance of the requested study would have resulted in the reclassification of Plaintiff's position to the directorship level. Matthews, 191 N.C.App. at 551, 664 S.E.2d at 21. Thus, even if the trial court erred by failing to find that Defendant breached the settlement agreement, we must still affirm its judgment given Plaintiff's failure to elicit any evidence tending to show that he suffered measurable financial damages as the result of the alleged breach of the settlement agreement.
In light of this determination, we need not address Plaintiff's contention that Findings of Fact Nos. 6, 9, 11, 12, 15, 20, 21, 24, 25, and 26 lacked adequate evidentiary support. As we understand his brief, Plaintiff has challenged these findings for the purpose of persuading us that the trial court erred by concluding that Defendant had not materially breached the settlement agreement and that any failure on Defendant's part to comply with the settlement agreement should be excused. Since a successful challenge to the evidentiary support for these findings of fact would have no bearing on the issue of whether Plaintiff failed to present sufficient evidence of damages, we need not determine the extent, if any, to which the record did or did not adequately support these findings of fact.
Aside from his failure to elicit any evidence tending to show that he sustained damages as a result of Defendant's alleged breach of the settlement agreement, Plaintiff also failed to challenge a number of the grounds upon which the trial court concluded that judgment should be entered in favor of Defendant. More particularly, Plaintiff has not challenged the trial court's conclusions that, even if Defendant materially breached the settlement agreement, Plaintiff had (1) breached the settlement agreement himself and (2) failed to mitigate his damages. “It is not the role of the appellate courts ... to create an appeal for an appellant.” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). According to well-established North Carolina law, the Court has no obligation “to supplement an appellant's brief with legal authority or arguments not contained therein.” Goodson v. P.H. Glatfelter Co., 171 N.C.App. 596, 606, 615 S.E.2d 350, 358,disc. review denied,360 N.C. 63, 623 S.E.2d 582 (2005). By failing to address certain other conclusions upon which the trial court relied in ruling in favor of Defendant, Plaintiff is precluded from obtaining relief from the trial court's order on appeal, since reaching a contrary result would require us to “create an appeal for an appellant.” Viar, 359 N.C. at 402, 610 S.E.2d at 361. Thus, we believe that Plaintiff is not entitled to relief from the trial court's judgment for this reason as well.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Plaintiff has failed to demonstrate that he is entitled to relief from the trial court's judgment. As a result, the trial ourt's judgment should be, and hereby is, affirmed.
AFFIRMED. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).