IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1350
Filed: 2 August 2016
Cherokee County, No. 15 CVS 50
RONALD KEITH LOVIN, Plaintiff,
v.
CHEROKEE COUNTY, RANDY WIGGINS, COUNTY MANAGER, in his official
capacity, CANDY R. ANDERSON, CHEROKEE COUNTY FINANCE DIRECTOR, in
her official capacity, MELODY JOHNSON, CHEROKEE COUNTY HUMAN
RESOURCES DIRECTOR, in her official capacity, and ROY G. DICKEY; DANIEL
M. EICHENBAUM; DAVID F. MCKINNON (C.B. MCKINNON); CALVIN H.
STILES; GARY W. WESTMORELAND, CHEROKEE COUNTY-COUNTY
COMMISSIONERS, each in their official capacity as commissioners, Defendants.
Appeal by defendants from order entered 14 October 2015 by Judge Jeff Hunt
in Cherokee County Superior Court. Heard in the Court of Appeals 25 May 2016.
Frank G. Queen, PLLC, by Frank G. Queen, and David A. Wijewickrama for
plaintiff-appellee.
Womble, Carlyle, Sandridge & Rice, LLP, by Sean F. Perrin, for defendants-
appellants.
ELMORE, Judge.
Defendants appeal from the trial court’s order of partial summary judgment
awarding plaintiff a special separation allowance for 36 years of creditable service
through two North Carolina retirement systems: TSERS and LGERS. On appeal,
defendants argue that because plaintiff was not a member of TSERS when he retired,
LOVIN V. CHEROKEE CNTY.
Opinion of the Court
he was not entitled to receive a special separation allowance for his service under
TSERS. We agree and reverse the trial court’s order.
I. Background
Ronald Keith Lovin (plaintiff) served as a Hickory police officer for 14 months
and a North Carolina state trooper for 22 years and 10 months. During this time,
plaintiff was a member of the Teachers’ and State Employees’ Retirement System
(TSERS). In 2009, however, he began drawing his retirement benefits from TSERS.
In 2002, plaintiff was elected sheriff of Cherokee County where he served for
approximately 12 years. As sheriff, plaintiff was a member of the Local Government
Employment Retirement System (LGERS). His term ended on 1 December 2014, and
he retired in January 2015. Upon plaintiff’s retirement, the Cherokee County human
resources director, Melody Johnson, determined that he was eligible for a special
separation allowance under N.C. Gen. Stat. § 143-166.42. The County paid plaintiff
based on his 12 years of LGERS service, but excluded his nearly 24 years of TSERS
service because he was not a member of TSERS when he retired.1
Plaintiff sued the County and various County officials (defendants), alleging
that defendants miscalculated the correct amount of his special separation allowance.
Plaintiff argued that his special separation allowance should be based on 36 years of
creditable service, representing the 12 years of LGERS service and the 24 years of
1Plaintiff had 23.6667 years of service with TSERS and 12.0833 years of service with LGERS. We
have rounded these numbers to 24 and 12, respectively, for ease of reading.
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Opinion of the Court
TSERS service. The parties moved for partial summary judgment on plaintiff’s claim
for declaratory relief. The trial court granted plaintiff’s motion, concluding that
plaintiff’s special separation allowance should be based on his 36 years of total service
and not merely his 12 years of service as a member of LGERS.
Defendants appealed, arguing that the trial court erred in granting plaintiff’s
motion for partial summary judgment and denying defendants’ motion for the same.
The court certified the order for immediate appeal pursuant to Rule 54(b) of the North
Carolina Rules of Civil Procedure. Because the judgment was final as to plaintiff’s
claim for declaratory relief, we have jurisdiction to review the merits. N.C. Gen. Stat.
§ 1A-1, Rule 54(b) (2015); Tridyn Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 491,
251 S.E.2d 443, 447 (1979).
II. Discussion
The sole issue is whether plaintiff’s special separation allowance should be
based on 36 years of service, which includes 24 years of state service through TSERS
and 12 years of local government service through LGERS, or just 12 years of service
through LGERS.
We review the trial court’s grant of summary judgment de novo. In re Will of
Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Summary judgment “is
appropriate only when the record shows that ‘there is no genuine issue as to any
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Opinion of the Court
material fact and that any party is entitled to a judgment as a matter of law.’ ” Id.
(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
This case begins and ends with the statutory language. “When the language
of a statute is clear and unambiguous, there is no room for judicial construction, and
the courts must give it its plain and definite meaning.” Lemons v. Old Hickory
Council, Boy Scouts of Am., Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988)
(citations omitted). “[A] statute clear on its face must be enforced as written.” Bowers
v. City of High Point, 339 N.C. 413, 419–20, 451 S.E.2d 284, 289 (1994) (citation
omitted). If a statute “contains a definition of a word used therein, that definition
controls.” In re Appeal of Clayton-Marcus Co., Inc., 286 N.C. 215, 219, 210 S.E.2d
199, 202 (1974) (citation omitted).
Chapter 143, Article 12D grants a special separation allowance for qualifying
law enforcement officers upon their retirement. N.C. Gen. Stat. § 143-166.40–42
(2015). An eligible officer is entitled to receive, beginning in the month he retires,
“an annual separation allowance equal to eighty-five hundredths percent (0.85%) of
the annual equivalent of the base rate of compensation most recently applicable to
him for each year of creditable service.” N.C. Gen. Stat. § 143-166.42(a) (2015)
(emphasis added). “Creditable service” is defined as “the service for which credit is
allowed under the retirement system of which the officer is a member.” N.C. Gen. Stat.
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Opinion of the Court
§ 143-166.42(b) (2015) (emphasis added). The two retirement systems in issue are
TSERS and LGERS.
A. Teachers’ and State Employees’ Retirement System (TSERS)
Defendants argue that because plaintiff was not a “member” of TSERS when
he retired, he was not entitled to receive a special separation allowance for his service
through TSERS as a police officer and a state trooper.
A TSERS “member” is “any teacher or State employee included in the
membership of the System.” N.C. Gen. Stat. § 135-1(13) (2015). “System,” as that
term is used in Chapter 135, refers specifically to TSERS. N.C. Gen. Stat. § 135-1(22)
(2015). If a member withdraws his accumulated contributions or becomes a
beneficiary, he is no longer a member of TSERS. N.C. Gen. Stat. § 135-3(3) (2015).
“Beneficiary” is defined as “any person in receipt of a pension, an annuity, a
retirement allowance or other benefit as provided by this Chapter.” N.C. Gen. Stat.
§ 135-1(6) (2015).
In 2009, prior to his retirement from the sheriff’s department, plaintiff began
receiving retirement benefits from TSERS. At that point, he became a “beneficiary”
and ceased to be a “member” of TSERS. Plaintiff essentially concedes that he was
not a member of TSERS when he retired, but argues that “creditable service,” as
defined in section 143-166.42(b), should be interpreted as “service for which credit is
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Opinion of the Court
allowed under the retirement system of which the officer is a member when the credit
is accumulated.” But that is not how the statute is written.
Based on its definition, membership in TSERS is not perpetual. Instead, it
may terminate upon the happening of some event, e.g., withdrawing contributions or
receiving retirement benefits. Subsections 143-166.42(a) and (b) couch creditable
service in terms of current membership in the system at the time of retirement. The
legislature could have easily defined creditable service under Chapter 143 in the
manner urged by plaintiff, but it did not. In computing plaintiff’s creditable service,
therefore, his 24 years of service under TSERS should have been excluded.
B. Local Government Employees’ Retirement System (LGERS)
Defendants do not dispute that plaintiff is a member of LGERS. Accordingly,
for the purpose of calculating the special separation allowance, we must determine
plaintiff’s creditable service under LGERS.
In LGERS, “creditable service” means the sum of three things: (1) “prior
service”; (2) “membership service”; and (3) “service, both noncontributory and
purchased, for which credit is allowable as provided in G.S. 128-26.” N.C. Gen. Stat.
§ 128-21(8) (2015). “Prior service” means “the service of a member rendered before
the date he becomes a member of the [LGERS], certified on his prior service certificate
and allowable as provided by G.S. 128-26.” N.C. Gen. Stat. § 128-21(17), (21) (2015).
“Membership service” means “service as an employee rendered while a member of the
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[LGERS] or membership service in a North Carolina Retirement System that has
been transferred into [LGERS].” N.C. Gen. Stat. § 128-21(14), (21) (2015). Section
128-26 gives participating employers the option to “allow prior service credit to any
of its employees” for “earlier service to the aforesaid employer; or their earlier service
to any other employer as . . . defined in G.S. 128-21(11); or, their earlier service to
any state, territory, or other governmental subdivision of the United States other
than this State.” N.C. Gen. Stat. § 128-26(a) (2015). The statute also allows members
to transfer to LGERS their credits for membership and prior service in TSERS, N.C.
Gen. Stat. § 128-34(b) (2015), and provides for situations in which an employee may
purchase creditable service, see e.g., N.C. Gen. Stat. § 128-26(h1) (2015).
Plaintiff has 12 years of membership service in LGERS, calculated from the
time he became sheriff in December 2002 until his retirement in January 2015.
According to the undisputed statements in Ms. Johnson’s affidavit, however, the
County never issued plaintiff a prior service certificate pursuant to section 128-26(e),
plaintiff never transferred membership of his TSERS service to LGERS pursuant to
section 128-34, and the County never gave plaintiff credit for prior service pursuant
to section 128-26(a). Plaintiff does not dispute these facts or otherwise claim any
prior service or service allowable under section 128-26. Therefore, plaintiff’s
creditable service under LGERS is limited to his 12 years of membership service as
sheriff.
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III. Conclusion
The trial court erred in granting partial summary judgment in favor of
plaintiff. His special separation allowance should have been based on 12.0833 years
of creditable service because plaintiff was not a member of TSERS when he retired.
The trial court’s order is reversed.
REVERSED.
Judges DAVIS and DIETZ concur.
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