Murphy v. McIntyre, 69 N.C. App. 323

69 N.C. App. 323

N.C. Ct. App.

1984

EAGLES, Judge.

Plaintiff first assigns as error the trial court’s entry of summary judgment for defendant with respect to plaintiffs claims that defendant had violated her constitutional rights to due process under the fifth and fourteenth amendments. Plaintiff concedes that she had no property right in her job but contends that she has a liberty interest in seeking and obtaining future employment. Plaintiff contends that she was deprived of this liberty interest in violation of her constitutional rights when the School Board decided not to rehire her without affording her an opportunity to contest her evaluation, the sole basis of the Board’s decision.

We disagree. This issue was considered in Presnell v. Pell, 298 N.C. 715, 260 S.E. 2d 611 (1979). Presnell involved the dismissal of a public school employee by the principal on the basis of allegedly unsubstantiated statements. There, our Suprеme Court held that, while there was no property right to the job, plaintiff did have a liberty interest in seeking and obtaining future employment. The Court held that that liberty interest was adequately protected by the administrative remedy prescribed in G.S. 115-34.

We note that G.S. 115-34 was repealed effective 1 July 1981 and rеplaced by G.S. 115C-45(c). Because plaintiffs right, if any, to an administrative remedy arose on 24 June 1981, 6 days before the effective date of the new statute, we assume without deciding that G.S. 115-34 applies to this case. We note also that G.S. 115C-45(c) does not vary materially from G.S. 115-34.

G.S. 115-34 provides for a two-steр appeal process as follows:

An appeal shall lie from the decision of all school personnel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the appropriate county or city board of education.

An appeal shall lie from the decision of a county or city board of education to the superior court of the State in any action of a county or city board of education affecting one’s character оr right to teach.

Plaintiff argues that the present case is distinguishable from Presnell v. Pell in that the decision not to rehire plaintiff was made by the School Board while the employee in Presnell was discharged by the principal. Still v. Lance, 279 N.C. 254, 182 S.E. 2d 403 (1971) holds that G.S. 115-34 has no application where the decision complained of is the decision of a county board оf education. With this in mind, plaintiff argues that Presnell v. Pell does not control and that the administrative remedy of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍G.S. 115-34 does not protect her liberty interest.

Plaintiffs argument, while accurately distinguishing Presnell, overlooks the fact that the action complained of is not the School Board’s decision not to rehire her, but the principal’s evaluation оf her that influenced the School Board’s decision. We hold that Presnell v. Pell does control here; plaintiffs constitutional claim was properly dismissed fоr failure to exhaust her administrative remedies. See Snuggs v. Stanly Co. Dept. of Public Health, 310 N.C. 739, 314 S.E. 2d 528 (1984) (plaintiffs claim under 42 U.S.C. § 1983 properly dismissed under G.S. 1A-1, Rule 12(b)(6) for failure to alleged lack of adequate State administrative remedies).

Plaintiff next contends that it was error for the trial court to allow defendant’s motion for a directed verdict at the сlose of plaintiffs evidence. Plaintiff argues that, viewed as required, her evidence is sufficient to establish a prima facie case of malicious interference with contract. Plaintiff argues that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the evidence shows that defendant’s actions were wrongful and that they were taken with the intent of adversely affecting her chances for employment in the Sampson County School System for the 1981-82 school year. Plaintiff submits that this evidence establishes the element of malice necessary for a prima facie case of malicious interference with contract and to withstand defendant’s motion for dirеcted verdict. We disagree.

In order to establish a prima facie case of malicious interference with contract, a plaintiff must establish that the defendant’s actions were malicious in the legal sense. Here, malice means intentionally doing a wrongful act or exceeding one’s legal right or authority in order to prevent the making of a contract between two parties. The action must be taken with the design of injuring one of the parties to the contract or of gaining some ad vantage at the expense of a party. Johnson v. Gray, 263 N.C. 507, 139 S.E. 2d 551 (1965); Childress v. Abeles, 240 N.C. 667, 84 S.E. 2d 176 (1954); Coleman v. Whisnant, 225 N.C. 494, 35 S.E. 2d 647 (1945). Plaintiffs evidence must show that defendant had no legal justification for his action; proof of actual malice is not suffiсient. Childress v. Abeles, supra.

Indeed, actual malice and freedom from liability for this tort may coexist. If the outsider has a sufficient lawful reason for inducing the breach оf contract, he is exempt from liability ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for so doing, no matter how malicious in actuality his conduct may be. A “malicious motive makes a bad act worse but it cannot make that wrong which, in its own essence, is lawful.”

Id. at 675, 84 S.E. 2d at 182, quoting Bruton v. Smith, 225 N.C. 584 at 586, 36 S.E. 2d 9 at 10 (1945). Recent cases hold that one need not be an outsider in order to be held liable for malicious interference with contract. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E. 2d 282, 79 A.L.R. 3d 651 (1976).

Viewing the evidence in the light most favorable to the plaintiff, see, e.g., Cook v. Export Leaf Tobacco Co., 50 N.C. App. 89, 272 S.E. 2d 883, rev. denied, 302 N.C. 396, 279 S.E. 2d 350 (1981); Hart v. Warren, 46 N.C. App. 672, 266 S.E. 2d 53, rev. denied, 301 N.C. 89, --- S.E. 2d --- (1980), there can be no doubt that defendant McIntyre lowered plaintiffs performance evaluation without consulting or informing Ms. Sykes, the teacher who had co-signed the form. It is likеwise undisputed that the lowered evaluation resulted in plaintiff not being rehired for the 1981-82 school year. The trial court aptly characterizеd defendant’s actions as “reprehensible,” “underhanded,” “below the board,” and “not fair to the parties.”

However, there is no evidence that defendant acted maliciously in the legal sense. The school superintendent, plaintiffs witness, testified on direct and cross-examination that, although consultation with the supervising teacher was expected and encouraged, the final responsibility for the evaluation rested with the principal. He further testified that, while the policy regarding the evaluations was not clearly spelled out, a principal was not required tо consult the supervising teacher before changing a particular aide’s evaluation. The superintendent testified on cross-examinatiоn that Mr. McIntyre had not “done anything wrong” and had in fact complied with the policy of involving teachers in the evaluations.

The record does not disclose defendant’s motives. However, his actions were within the scope of his authority and, for that reason, were not legally malicious. In viеw of defendant’s position as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍principal, plaintiffs evidence permits the inference that defendant had the responsibility and, indeed, the оbligation to act as he did, even though another person might have acted differently. Dawson v. Radewicz, 63 N.C. App. 731, 306 S.E. 2d 171 (1983).

Plaintiffs evidence fails to establish malice on the part of defendant sufficiently to make out a prima facie case of malicious interference with contract. The trial court properly granted defendant’s motion for directed verdict with respect to this claim. Plaintiffs argument to the contrary is without merit.

l — f H — i I — I

Although the trial court ruled that plaintiff had pleаded her claims of libel and slander sufficiently to withstand defendant’s motion for summary judgment, plaintiff on appeal does not contest the directеd verdict for defendant with respect to those claims. Plaintiff has apparently abandoned her exceptions and assignments of error insоfar as they relate to the libel and slander issues and we will not consider them here. We hold that the trial court’s grant of defendant’s motion for direсted verdict was proper in all respects and that plaintiffs action was properly dismissed.

For the reasons stated above, the judgment of the trial court is

Affirmed.

Judges Webb and Johnson concur.