Pedro L. Martinez (plaintiff) appeals from an order granting a motion to dismiss in favor of The University of North Carolina (defendant). We reverse and remand.
In August 2008, plaintiff was employed as provost of Winston Salem State University (WSSU), a constituent institution of defendant. Sometime that month, plaintiff was approached by the chancellor of WSSU and asked to resign from his position as provost, and to accept a full-time faculty position. Plaintiff agreed, and he entered into a written contract with WSSU (the contract). The contract, titled “Settlement Agreement,” governed the terms of plaintiffs transition from provost to full-time faculty member. The contract provided that plaintiff “shall continue to receive full administrative annual salary of $180,000.00 . . . from September 1, 2008 and ending June 30, 2009,” after which, plaintiff would then “retreat to the Faculty of the School of Education at a salary commensurate with comparable salaries of senior faculty in the School of Education as determined at that time.”
In May 2009, WSSU notified plaintiff that he would be paid an. annual salary of $85,000.00 per year as a full-time faculty member. However, plaintiff was not satisfied with that salary. According to plaintiff, that amount was “not a salary commensurate with salaries paid to other senior tenured faculty members employed by defendant who have retreated from an administrative position[.]” Plaintiff then initiated a grievance, and a faculty grievance committee investigated his argument. The committee determined that plaintiffs salary was appropriate, and plaintiff appealed this decision to the new provost of WSSU. The new provost affirmed the decision on 1 March 2010. Plaintiff then continued his appeal to the chancellor of WSSU, who also affirmed the decision on 23 March 2010.
On 17 May 2011, plaintiff filed suit against defendant for 1) breach of contract and 2) violation of the Wage and Hour Act. However, on 14 September 2011, plaintiff amended his complaint, alleging only a claim for breach of contract. On 21 September 2011, defendant filed a motion to dismiss 1) pursuant to Rules 12(b)(1) and (2) of the North Carolina Rules of Civil Procedure under the theory of sovereign immunity and 2) pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted. On 18 January 2012, the trial court entered an order granting defendant’s motion. Plaintiff now appeals.
A. Sovereign immunity
Plaintiff first argues that the trial court erred in dismissing his amended complaint pursuant to Rules 12(b)(1) and (2) because defendant waived its sovereign immunity. We agree.
i- 12(b)(2)
“[A]n appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject matter jurisdiction[.]” Data Gen. Corp. v. Cnty. of Durham,
It is a well established rule that “ [t]he State cannot be sued in its own courts or elsewhere unless it has expressly consented to such suits.” Stahl-Rider, Inc. v. State,
whenever the State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract. Thus, in this case, and in causes of action on contract arising after the filing date of this opinion, 2 March 1976, the doctrine of sovereign immunity will not be a defense to the State. The State will occupy the same position as any other litigant.
Smith v. State,
Here, defendant, an agency of the State, entered into a contract with plaintiff regarding employment and salary. As such, defendant waived its sovereign immunity to suit based on a claim for breach of that contract. Accordingly, we conclude that the trial court erred in dismissing plaintiff’s complaint pursuant to Rule 12(b)(2).
i- 12(b)(n
Likewise, we also conclude that the trial court erred in dismissing plaintiff’s complaint pursuant to Rule 12(b)(1). “An action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies. An appellate court’s review of such a dismissal is de novo.” Johnson v. Univ. of N.C.,
Here, it is clear from the record that plaintiff exhausted the administrative remedies available to him. Before filing suit, plaintiff initiated a grievance with the faculty grievance committee, an appeal with the provost, and a further appeal with the chancellor.
B. Failure to state a claim
Plaintiff next argues that the trial court erred in dismissing his amended complaint pursuant to 12(b)(6) because the amended complaint adequately pled all elements of a cause of action for breach of contract. 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,
Here, plaintiffs amended complaint alleged 1) “plaintiff contracted with defendant to receive, upon his return to a full time
III. Conclusion
In sum, we conclude that the trial court erred in dismissing plaintiffs claim pursuant to Rules 12(b)(1), (2), and (6). We reverse the trial court’s order and remand for further proceedings.
Reversed and Remanded.