An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1020
                       NORTH CAROLINA COURT OF APPEALS

                                   Filed: 6 May 2014


FORREST TRAVIS COSTON,
     Plaintiff,

      v.                                        Mecklenburg County
                                                No. 11 CVS 22954
UNIVERSITY OF NORTH CAROLINA AT
CHARLOTTE; PHILIP L. DUBOIS in his
official capacity; GARY W.
STINNENT in his individual and
official capacity,
     Defendants.


      Appeal by defendants from order entered 6 June 2013 by

Judge Forrest D. Bridges in Mecklenburg County Superior Court.

Heard in the Court of Appeals 5 March 2014.


      No brief filed on behalf of plaintiff-appellee.

      Attorney General Roy Cooper, by Assistant Attorney General
      Katherine A. Murphy, for defendants-appellants.


      HUNTER, Robert C., Judge.


      Defendants      appeal       the   order    denying      their    motion    to

dismiss.        On    appeal,       defendants     contend      that:     (1)    the

interlocutory        order    is     immediately       appealable      because    it

involves     sovereign       immunity;    (2)    the   trial    court    erred    in
                                         -2-
denying UNCC’s motion to dismiss based on sovereign immunity;

(3) the trial court erred in denying defendants Dubois’s and

Stinnent’s     motion      to    dismiss       based     on     lack     of    personal

jurisdiction;     and      (4)    the    trial        court     erred     in     denying

defendants’ motion to dismiss based on plaintiff’s failure to

state a claim upon which relief can be granted and res judicata.

       After careful review, because plaintiff could not assert a

claim of wrongful discharge in violation of public policy as a

state employee, we reverse the order denying defendants’ motion

to dismiss.

                                   Background

       As   alleged   in   the    amended       complaint,      plaintiff        Forrest

Coston was a police officer at the University of North Carolina

at    Charlotte   (“UNCC”).        On   26     July    2009,    while    attending       a

convention in Norfolk, Virginia, a Virginia state trooper found

plaintiff asleep in his car.            Plaintiff was given an alco-sensor

test which registered his blood alcohol level as 0.11.                                Upon

returning    to   UNCC,    plaintiff       realized      that    he     had    left    his

weapon in his hotel room in Norfolk.                  However, he lied and told

his    supervisors      that     the    weapon    was     in     the     hotel    safe.

Plaintiff’s supervisors learned the truth, and he was dismissed

for violations of various regulations and police general orders.
                                       -3-
      Plaintiff filed a petition for a contested case hearing in

the   Office   of    Administrative    Hearings   (“OAH”)    on   8   November

2010.    The Administrative Law Judge issued a decision on 24

February 2011, concluding that UNCC had just cause to dismiss

plaintiff and that plaintiff was not discriminated against based

on his race.

      Plaintiff instituted the current action on 17 December 2012

by filing a complaint against only defendant UNCC.                The matter

was removed to the United States District Court for the Western

District of North Carolina on 20 August 2012.              Plaintiff amended

his complaint and added defendants Philip Dubois (“Dubois”), in

his official capacity, and Gary Stinnent (“Stinnent”), in his

individual and official capacity.              In the amended complaint,

plaintiff sought relief based on the following causes of action:

(1) wrongful discharge in violation of public policy; and (2)

violations of 42 U.S.C. §§ 1981 and 1983.                  After defendants

filed a motion to dismiss, plaintiff dismissed his federal law

claims with prejudice and moved to remand the state law claim

for   wrongful      discharge   back   to    Mecklenburg    County    Superior

Court, which was allowed.

      On 15 March 2013, defendants filed a motion to dismiss the

amended complaint, and plaintiff filed a motion to amend his
                                         -4-
complaint a second time.              With regard to defendants’ motion to

dismiss,    defendants     asserted          the    following    grounds:    (1)    the

individual defendants had not been served with the complaint or

summons; (2) plaintiff failed to state a claim upon which relief

can be granted; and (3) the wrongful discharge claim is barred

by   the   statute   of    limitations,            sovereign    immunity,    and    res

judicata.

      The matters came on for hearing on 2 May 2013.                        The trial

court denied both motions.             Specifically, the trial court found

that because “state employees may assert a claim for wrongful

discharge in violation of public policy,” the motion to dismiss

was denied.     Defendant timely appealed.

                     Interlocutory Nature of Appeal

      Initially, it should be noted that defendants are appealing

an interlocutory order denying their motion to dismiss pursuant

to Rules 12(b)(1), (2), (4), (5), and (6).                      Thus, we must first

determine      whether     the        order        is    immediately      appealable.

“Generally,     there      is    no    right        of    immediate    appeal      from

interlocutory orders and judgments.”                     Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).                        However,

this Court has long held that a denial of a Rule 12(b)(6) motion

to   dismiss    on   the    basis       of     sovereign       immunity   affects     a
                                           -5-
substantial     right   and    is    immediately         appealable.       Green   v.

Kearney, 203 N.C. App. 260, 266, 690 S.E.2d 755, 761 (2010);

Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 384, 677

S.E.2d 203, 207 (2009).            Moreover, although this appeal presents

additional issues other than sovereign immunity, it is well-

established that this Court may, in the interest of judicial

economy, entertain the entirety of an appeal involving an issue

which affects a         substantial right, even though the remaining

issues on appeal do not, in and of themselves, affect such a

right.    Block v. Cnty. of Person, 141 N.C. App. 273, 277, 540

S.E.2d 415, 419 (2000); Houpe v. City of Statesville, 128 N.C.

App. 334, 340, 497 S.E.2d 82, 87 (1998).                    Thus, in the interest

of   judicial   economy,      we    also    will       address    defendants’   other

arguments on appeal, which relate                     to the sufficiency of the

complaint.

                                     Arguments

      Defendants   argue      that    the    trial       court    erred   in   denying

their motion to dismiss             because plaintiff failed to state a

claim    upon   which     relief      can        be    granted.       Specifically,

defendants contend that the claim of wrongful discharge is only

available to at-will employees; since plaintiff could only be

dismissed with cause as a state employee, he was not entitled to
                                             -6-
assert      a    claim     for    relief     based    on   the     tort    of     wrongful

discharge. We agree.

      “The motion to dismiss under N.C.R. Civ. P. 12(b)(6) tests

the legal sufficiency of the complaint. In ruling on the motion,

the allegations of the complaint must be viewed as admitted, and

on   that       basis    the    court     must    determine   as    a    matter    of   law

whether the allegations state a claim for which relief may be

granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d

611, 615 (1979) (citations omitted), overruled on other grounds

by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).                             Our

review is de novo.              Leary v. N.C. Forest Prods., Inc., 157 N.C.

App. 396, 400, 580 S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567,

597 S.E.2d 673 (2003).

      In its order, with regard to whether a state employee can

assert      a     claim     for     wrongful       discharge,      the     trial    court

specifically found that state employees are entitled to this

cause    of      action.       However,    this    Court   has     specifically      noted

that: “the tort of wrongful discharge arises only in the context

of employees at will. Breach of contract is the proper claim for

a wrongfully discharged employee who is employed for a definite

term or an employee subject to discharge only for ‘just cause.’”

Wagoner v. Elkin City School Bd. of Educ., 113 N.C. App. 579,
                                           -7-
588, 440 S.E.2d 119, 125 (1994); see also Coman v. Thomas Mfg.

Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (noting

that    the   claim      of     wrongful    discharge   is   a   public    policy

exception     to   the        employee-at-will    doctrine).       Here,    since

plaintiff was a permanent state employee subject to chapter 126

of the North Carolina General Statutes, he could only be fired

for just cause.       N.C. Gen. Stat. § 126-35(a) (2013).            Therefore,

as a matter of law, plaintiff was not entitled to assert a cause

of action for wrongful discharge in violation of public policy.

Accordingly, the trial court erred in denying defendants’ motion

to dismiss based on plaintiff’s failure to state a claim upon

which relief can be granted, and we reverse the trial court’s

order.1

                                     Conclusion

       Because plaintiff, an employee who could only be discharged

for just cause, was not entitled to assert a cause of action for

wrongful discharge in violation of public policy, we reverse the

trial court’s order denying defendants’ motion to dismiss.



       REVERSED.



1
   As we are reversing the trial court’s order as to all
defendants, it is not necessary to address defendants’ remaining
arguments on appeal.
                         -8-
Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).
