Legal Case Summary

We're ready to hear argument in our third case, number 13, 18, 20. Davis versus city of green. Morning, your orders. My name is Ken Kair. I'm an attorney from Greensboro, North Carolina. And I represent the city of Greensboro, North Carolina, and this appeal. I attempted in the initial brief and rep library to address all the matters and issues that I thought that this court should be aware of. And so what I'd like to do on this or argument is cut directly to the chase on several of the interesting issues that we have. And I've actually going to change up my plans. That's what I'm going to argue initially based upon what you all did and said. And the first argument today. And that was that a four circuit panel cannot overrule a prior decision of a different panel. And that actually is exactly the law in the North Carolina. That's an interesting principle. It is. And it's a North Carolina court appeals and embrace that. We can't even overrule a prior opinion of the same panel. Well, of course, unfortunately, North Carolina, there's no inbox if for court appeals. The only recourse is good to Supreme Court. There's no certification. Correct. Correct. You don't have that court of appeals on

. I never have figured out how much story they have, I suppose, that it's a Supreme Court, too. Well, you've got a lot of issues involved in that. I will say they are getting often get away from your case. You bear with that. Well, no, they you only have 20 minutes. Okay. Well, it's not going to take me 20 minutes. The only thing. But again, North Carolina court appeals a subsequent panel cannot overrule a nervous panel. And this court is faced with, do you follow the decision that the plaintiffs want you to follow? And that is the Myers case. Or do you follow the earlier decision that would talk a county case that the city wants you to follow? And specifically, both those cases dealt with the applicability of NCGS, North Carolina General Statue 150, 9-28. And that is when the city, a city sued in North Carolina for breaching a contract, that statute indicates there must be a pre-certification or pre-autistic certification or certificate for there to be a valid contract. And Wittelga held that even though the contract was to be executed in future years, the statute applied. However, the Myers panel, some years later, held that no, that statute applies if the contract is to be executed that very same year that the contract was executed. How did you get this case up here? Got this up here because we had to be... You're up here on a cladder water dog. That is correct. And what did the judge..

. You invoked a sovereign immunity claim. A governmental immunity claim. A governmental immunity claim. And how did the judge rule on your government immunity claim? Obviously, denied. And... Well, she says here on their opinion, she says the community evidences, therefore, inappropriate for resolution at this stage. She won't pay for her for main opinion. That is correct. So, how did she... She says it's inappropriate for resolution. But it's not here because she... She... Because she failed to follow the law, which is in our brief, that as a matter of law, that the plaintiff had failed to plead that the city had a pre-ordered certificate. Now, but how did she rule on your immunity defense if she says it's inappropriate to rule on your immunity defense? Well, the best record is that she denied

... A language of her order. Right. Her opinion. Well, because this court has to decide the issue de novo. Well, but the cladder water dog from the first elements of it is that the immunity claim that was invoked has been conclusively resolved against the claimant of the immunity. And that's Green City of Greensboro. So, did she conclusively resolve it when she said she wasn't going to resolve it? Well, she resolved it in the sense that she did not follow North Carolina law. So, she implied they've resolved it? Absolutely. In face of the proposition that she said I'm not going to resolve it, you're saying she's still resolved it. Exactly. But you don't explain that. I mean, I just... Well, actually... We've recklessly guard this jurisdictional stuff. Ununderstandable. For strictly on these interlocutorial appeals, because we get enough fields of final orders

. We don't have to get into these interlocutorial things if we don't need to. We don't want to... We want to final order. We don't like piecemeal appeals. But that's... In this interlocutorial cladder water doctrine is an exception. But you've got a case here where the judge says I ain't going to resolve the immunity defense. I'm not going to resolve the immunity. That's what I'm talking about, like I'm West Virginia. And then you say, well, she resolved it anyway in the face of that, because she ultimately said everything else was denied. That's what she said in her order. Correct. And actually... So, you're saying that's what it is that gives you the rights come up. You said we've got immunity. She didn't explain anything about why she was denied immunity, but she resolved it enough that you can take the appeal

. Absolutely. In fact... Maybe you're right, but the judge says it's inappropriate for resolution. So she didn't conclusively be resolved if I don't think if she said it was inappropriate for resolution. Well, from the city standpoint, she did resolve it. We feel we have an absolute right that the government immunity not to be sued for the breach of contract claim. I understand it. Claiming it, but the judge says it's inappropriate for resolution. But your judge down there said it was inappropriate. By her denied our motion. Now you want us to resolve it when she says she didn't. But by the judge doing what she did, she did effectively deny our right to be free from suit, which is a whole concept of the very concept of the different immunity. And I address that by way. It's a lot easier for us to review a decision where judges analyzed, particularly when it would implicate some state law, where the judges analyzed some state law principles with respect to governmental immunity in North Carolina, which would help us a lot. If we had a judge, if we had a 20 page opinion analyzed in governmental immunity in North Carolina, rather than opinion that says the immunity defense is inappropriate for resolution, then in order that says, I'll grant a couple things here, but I'm going to deny everything else. We would have preferred that here on an issue that had been explained to us. Well, but the fact that the judge denied our motion. And then both sides here kind of sweeping under the rug. You say there's immunity. There's immunity

. There's immunity. So we got right to appeal. And they say, well, we don't think that right. But feel but nobody analyzes why we do it done. Actually, in the date, in the Davis case, in the brief, initial brief, footnote three on page 17, I actually addressed the issue because I was concerned, well, maybe the plaintiff in the argue, hold it. It's a jury issue. And there's a factual dispute. And that's what the courts are saying is, gosh, this is 1.59-28 seems to be so facts specific. Maybe we should develop some more facts. Well, the court in a state of cardiovascular Detroit, six-circuit case, was talking about if as a matter of law that the court should have acknowledged and accepted the governmental immunity defense, then even though the lower court went off on a tangent and said, well, there's a dispute of fact. And a pellet court can still, under his denobo right, hold that there is a governmental immunity based upon the plaintiffs' failure to properly plead a complaint. So I think, again, why should we do that? Sorry, what did you quote from? Oh, yeah, that's a page. Yeah, I got it. Okay. Footnote three. Why shouldn't we just treat, I understand the district court's order uses the word deny. But as Judge King was suggesting to you, did the district court actually just defer consideration? No, they did not. What could have done, yes, say? Where's the evidence, wait, wait, where's the evidence that it was denied other than the use of the word deny? I think that's pretty strong evidence that she denied it by using the word deny in her order. And if I disagree with that interpretation, and I interpret her deferral of the motion on governmental immunity, do you have a fallback argument? Well, the fallback argument, I respectfully disagree that the judge, if she really wanted to defer it, she would not have denied it. I understand you disagree and that I shouldn't do that. But if I did that, do you have a fallback argument? Well, the fallback is that the judge could have not denied it

. And simply, there's no requirement to judge actually rule and decide the rule 12b6 motion. She could have actually said, you know what, I'm not even going to rule on this right now. I'm wearing essence holding the advance. I'm going to let you do some more. But that put it sounds like when she says the immunity defense is therefore inappropriate for resolution at this stage. That sounds like she's not going to rule on it now. But again, maybe later at this stage, the tension comes over and it is an order not, if this is the right order, it says as to all other causes of action, the motion is denied. Not exactly. And again, the question about that, that's what we got. I mean, that's what we got here. And you say that gives us the right or an obligation to hear your interlocutorial appeal on a claim of sovereign immunity or governmental immunity. As we remember when the North Carolina law, she says she was having some problems deciding it because of a factual issue that she wanted the facts to be developed some more. That is no different than the court. And that's one of the other reasons. If the fact relates to the immunity claim, we shouldn't hear it now. We ought to let the facts be determined and let it come up here on the facts. The reason why I'm here today is that respectfully with the judge is she was just wrong that there did not need to be developed in the facts. This court can look at the complaint and nothing else. And that's what you should do. But if we don't have a conclusive determination of the immunity claim, we don't have jurisdiction to decide anything else. If we stop there and the resolution of this appeal is appealed this miss. I'd agree if she's not denied the motion

. If there is no order to deny the motion, I can't appeal that. There's for circuit president that helps you. I don't know why you would agree to that. The fact that it was so. I think she got something going out here. The fact that it was so sort of granted that the fact she denied it, I could actually bring this up to the court appeals. That's why I didn't even make a big issue of it. In fact, relegated the issue about factual dispute and a footnote. And the fact that the defense counsel did not mean the plaintiff's counsel and their responsibility also did not address that specific issue. Again, that's why I did not address it. But I do think that. Well, you do understand that you all can't decide whether we have jurisdiction. Oh, absolutely, absolutely. But I think the case law, certainly, and I cited and now that I hear, just referring to some for certain cases, I feel confident that this court does have jurisdiction. Again, if she had not denied it, she not entered the denial, I would not be here on this issue, whatsoever. But I thought it was very clear that she did not. I mean, what she was saying, frankly, is city Greensboro, as a matter of law, this complaint is satisfactory enough to get past 12b6. And what we're saying is no, you're honored. And we're coming to this court for correction that on the face of the complaint, which you have to look at at 12b6, the government to immunity stands. The plaintiff has failed to eledge sufficiently a contract that would basically have no governing immunity. So I do think that this court does have jurisdiction to hear this appeal. And if we were to agree with you, what would be left of everything? Right

. But these two- Equal protections out of the case, right? What else would be left? Everything? Right. So you're just here on the three-breacher contract. That is it. Which council are they? They actually differ from case to case. Okay. I'm sorry. We can figure that out. Yeah. That's somewhat confusing because as your honor is a part of the four different complaints, they're pretty much the same thing, but they have different paragraph numbers, et cetera. In fact, if you had the unfortunate exercise having to read each one of these four briefs, they all basically said the same thing. You're up here on three counts in each complaint. Yeah. Basically. And you admit that the rest of them don't have anything to do with it. No, we didn't appeal it. I mean, that's down in the four-circ. I mean, down in the middle district. Sort of because I did not think that we had a right to appeal anything that was not related to government immunity. That would be an appeal into the locker-tour. So that's down there. We are just on those issues that I appealed on those calls of action with respect to- Was that mainly just the slow-to-case down? Not at all. I don't want to- Case is not slowed down, believe me

. We've had this outside the record. The discovery is continuing. The discovery is continuing. The position is taken, et cetera. That is not slow-to-case down what's left. We can hear from you in Rebellul unless you want to use your Rebellul time right now. Oh. No, I do want to talk about a little bit about the dispute between the Wattaga and Myers, but I can do that with your vote. Okay, thank you. May I please the court? My name is Torin Furri and I represent the plaintiff, Apalees, and the four various suits. I'm going to primarily focus on the Davis case because I think that is the one that was the main opinion that all of the other opinions basically followed. And- Why were different complaints lost? I mean, it's just- when you get this file, it's just kind of crazy. Well, I wasn't involved in that initial decision, but I will say I think part of it was you were dealing with different departments, meaning some are police officers, some are firefighters, we were dealing with different entities at that particular time. And I think we had different times as to when they came and signed up as far as being willing to proceed. You had limited questions if you didn't go for- I mean, I would just sort of think you wait till you got everybody. Well, anyway, absolutely. Obviously, yes. We might have- and it was mentioned in the brief that was one of the reasons why we mentioned in the delay was the fact that obviously there would be a potential statute of limitations for some folks if they didn't file in a particular time. So that's just logistically the way we had to do it. With regard to Judge King's questions, obviously that was raised in our brief, but I'm not aware of any four circuit cases that were cited. Obviously, if the court doesn't have jurisdiction because it's not appealable, then at this point there is no basis for this court to proceed with this opinion. Now with regard to- answered your question regarding Judge Eagles' opinion, it clearly left open for a later time as to whether she could decide that sovereign immunity could apply at the summer judgment stage once the facts were further developed through discovery. So in that sense, there hasn't been any final decision on that particular issue. Does that make it different? And to be honest with you, I don't know the answer to that. To better answer the question of what's left Judge Davis in this particular case, according to the briefs, basically you're dealing with the contract issues for the long-jeb of EPI. That's what's left for this court's decision. There are other claims that will still remain open regardless of this court's ruling that will proceed. Does this mean you regard the contract claims as being the heart of the- No, there's- Because it was just hard to understand exactly why we were having an interlock story appeal on what seemed to be three of many. Well, there's multiple issues. There's issues of whether they- At my point, but I thought maybe you were saying will these contract issues for the ones that are driving the club? No, I'm sorry. They're the ones that we're dealing with on this appeal. That's what the appeal is dealing with the long-jeb of issues and whether the breach of contract claims can proceed against the City of Greensboro. And the two basic issues there, once you get past the jurisdictional issue, is the 159-28A issue, which is the pre-audit certificate. For a couple of reasons, the plaintiffs would submit that the claim can proceed. One is the Myers case, which the Myers case specifically held in interpreting the specific provision of 159-28A, which says where the contract obligation cannot be completed within the same year. That it's an exception. And specifically in the Myers case, the court said that because the severance provision or obligation did not occur in the same year, the pre-audit certificate requirement did not apply. They say that this earlier case, what Toggle County was contrary to that? Well, I think that the difference is, is the distinguishing factor. The what Toggle County case doesn't deal with that particular exception in the statute. It's not even discussed. And I think one important thing to note about the Myers case is the fact that it was decided 15 years ago. Legislature has not stepped in and amended that exception to the statute. And it makes some sense. Because in this particular instance, there's no dispute

. So in that sense, there hasn't been any final decision on that particular issue. Does that make it different? And to be honest with you, I don't know the answer to that. To better answer the question of what's left Judge Davis in this particular case, according to the briefs, basically you're dealing with the contract issues for the long-jeb of EPI. That's what's left for this court's decision. There are other claims that will still remain open regardless of this court's ruling that will proceed. Does this mean you regard the contract claims as being the heart of the- No, there's- Because it was just hard to understand exactly why we were having an interlock story appeal on what seemed to be three of many. Well, there's multiple issues. There's issues of whether they- At my point, but I thought maybe you were saying will these contract issues for the ones that are driving the club? No, I'm sorry. They're the ones that we're dealing with on this appeal. That's what the appeal is dealing with the long-jeb of issues and whether the breach of contract claims can proceed against the City of Greensboro. And the two basic issues there, once you get past the jurisdictional issue, is the 159-28A issue, which is the pre-audit certificate. For a couple of reasons, the plaintiffs would submit that the claim can proceed. One is the Myers case, which the Myers case specifically held in interpreting the specific provision of 159-28A, which says where the contract obligation cannot be completed within the same year. That it's an exception. And specifically in the Myers case, the court said that because the severance provision or obligation did not occur in the same year, the pre-audit certificate requirement did not apply. They say that this earlier case, what Toggle County was contrary to that? Well, I think that the difference is, is the distinguishing factor. The what Toggle County case doesn't deal with that particular exception in the statute. It's not even discussed. And I think one important thing to note about the Myers case is the fact that it was decided 15 years ago. Legislature has not stepped in and amended that exception to the statute. And it makes some sense. Because in this particular instance, there's no dispute. The longevity payments were not going to occur in the same year that the person was hired under the employment contract that were alleging. And the rationale for that is that another legislative session could appropriate the money. Is that it? Well, it's not the legislative. Basically, each local government applied jurisdiction. They could appropriate new money in the next year. Exactly. You could do a new budget each year. And not only that, Judge Montz, I think the other thing that's important is obviously with the longevity pay, there's a lot of contingencies that are going to occur as a result of that, meaning that you may hire 100 employees in the first year, but you may have 10 that are still there five years later. Yeah, but the exception doesn't go to your particular facts situation. The exception goes to not that doesn't have to be within one year. Well, correct. But I think in that instance, it encompasses more than our facts situation, but certainly it does encompass our facts situation. Because the first longevity payment would have occurred five years. I see what you think. Yeah. And I think what my point is is that if you get hired in your one, you may not have 20 people that are still in the police department or the fire department or other city entity that would still exist. So you're not going to budget all of those in five years from now. And that's the reason, in my opinion, for the exception. And also the RSB case, again, cites this particular opinion with authority for the same proposition and would contend to this court that the Myers case. And you're bound by the Myers case. It's North Carolina law. And that's what exists and that's what we have

. The longevity payments were not going to occur in the same year that the person was hired under the employment contract that were alleging. And the rationale for that is that another legislative session could appropriate the money. Is that it? Well, it's not the legislative. Basically, each local government applied jurisdiction. They could appropriate new money in the next year. Exactly. You could do a new budget each year. And not only that, Judge Montz, I think the other thing that's important is obviously with the longevity pay, there's a lot of contingencies that are going to occur as a result of that, meaning that you may hire 100 employees in the first year, but you may have 10 that are still there five years later. Yeah, but the exception doesn't go to your particular facts situation. The exception goes to not that doesn't have to be within one year. Well, correct. But I think in that instance, it encompasses more than our facts situation, but certainly it does encompass our facts situation. Because the first longevity payment would have occurred five years. I see what you think. Yeah. And I think what my point is is that if you get hired in your one, you may not have 20 people that are still in the police department or the fire department or other city entity that would still exist. So you're not going to budget all of those in five years from now. And that's the reason, in my opinion, for the exception. And also the RSB case, again, cites this particular opinion with authority for the same proposition and would contend to this court that the Myers case. And you're bound by the Myers case. It's North Carolina law. And that's what exists and that's what we have. The other issue with regard to 159-28A, which is dealt with in a footnote, one of the stories, there's a specific provision dealing with payroll accounts, where if it's in an impressed account where in that particular instance, it's paid as a payroll account, then in that instance, you don't have to have the separate pre-audit certificate for the individual contract in this particular instance. And I think that's one of the things that bothered judge. I was not at the argument, but I obviously was reported back to me. One of the things that sort of concerns judge eagles with the city's position is that you could hire an employee on day one, and then on day 31, just say, okay, you don't have a pre-audit certificate. So therefore, we're going to change your rate of pay, because we didn't, at that point, you didn't have, we're not going to pay you $15 an hour because it wasn't a pre-audit certificate. We're going to pay you minimum wage instead. And she had a concern with that being the city's position in this particular circumstance. And ultimately, one thing that I think is somewhat key with regard to the prior cases dealing with $15, $59,000, $28,000, in addition to the more than one year obligation is the fact. And all of those cases pretty much there was some other evidence that the certificate didn't exist either. There was an affidavit from the city. There was where the party withdrew the claim of breach of contract where the Howard case, specifically, where they admitted that the person that went to the mediation didn't have the authority to enter into the agreement. You had the ABC board case where specifically the contract, then, of itself, was ultra-voters. It wasn't something that the city or county could do. And therefore, the contract never would have been valid to begin with regardless of any other requirements. And in this instance, it's interesting that unlike at least one of the other cases, there was no affidavit filed by the city to indicate that the pre-audit certificate didn't exist. And that's one of the reasons why, I think, again, the court wanted to develop some facts to be able to determine everything from a contract that was by our allegation 20 years ago, which you have to accept is true. At least for Officer Smedzick, and I don't remember all the other higher dates for the other ones. And so for that reason, 159-28A just doesn't apply. And I think the Myers case is by far the easiest way to decide that. The other area in the brief that I want to address briefly, it wasn't addressed in great length, and either one of these particular briefs, was the allegation that, because the word written contract wasn't in the allegation of the complaint that that's enough for this court to reverse Judge Eagles. And one, I think, goes back to your point, Judge King, which is, in this instance, certainly that hasn't been decided other than the fact that we have alleged there's a valid contract, which plaintiffs would argue means that you've met all of the requirements of a contract, meaning that it's in writing if it's required to be. If it's that it's got adequate consideration, that it was formed by somebody that was bound by it

. The other issue with regard to 159-28A, which is dealt with in a footnote, one of the stories, there's a specific provision dealing with payroll accounts, where if it's in an impressed account where in that particular instance, it's paid as a payroll account, then in that instance, you don't have to have the separate pre-audit certificate for the individual contract in this particular instance. And I think that's one of the things that bothered judge. I was not at the argument, but I obviously was reported back to me. One of the things that sort of concerns judge eagles with the city's position is that you could hire an employee on day one, and then on day 31, just say, okay, you don't have a pre-audit certificate. So therefore, we're going to change your rate of pay, because we didn't, at that point, you didn't have, we're not going to pay you $15 an hour because it wasn't a pre-audit certificate. We're going to pay you minimum wage instead. And she had a concern with that being the city's position in this particular circumstance. And ultimately, one thing that I think is somewhat key with regard to the prior cases dealing with $15, $59,000, $28,000, in addition to the more than one year obligation is the fact. And all of those cases pretty much there was some other evidence that the certificate didn't exist either. There was an affidavit from the city. There was where the party withdrew the claim of breach of contract where the Howard case, specifically, where they admitted that the person that went to the mediation didn't have the authority to enter into the agreement. You had the ABC board case where specifically the contract, then, of itself, was ultra-voters. It wasn't something that the city or county could do. And therefore, the contract never would have been valid to begin with regardless of any other requirements. And in this instance, it's interesting that unlike at least one of the other cases, there was no affidavit filed by the city to indicate that the pre-audit certificate didn't exist. And that's one of the reasons why, I think, again, the court wanted to develop some facts to be able to determine everything from a contract that was by our allegation 20 years ago, which you have to accept is true. At least for Officer Smedzick, and I don't remember all the other higher dates for the other ones. And so for that reason, 159-28A just doesn't apply. And I think the Myers case is by far the easiest way to decide that. The other area in the brief that I want to address briefly, it wasn't addressed in great length, and either one of these particular briefs, was the allegation that, because the word written contract wasn't in the allegation of the complaint that that's enough for this court to reverse Judge Eagles. And one, I think, goes back to your point, Judge King, which is, in this instance, certainly that hasn't been decided other than the fact that we have alleged there's a valid contract, which plaintiffs would argue means that you've met all of the requirements of a contract, meaning that it's in writing if it's required to be. If it's that it's got adequate consideration, that it was formed by somebody that was bound by it. And if you take the argument of the city to one step further, then arguably you have to alleging the complaint that the particular contract was signed by somebody that was authorized to bind the city as a specific allegation in the complaint. And it's our contention in this particular instance that we have alleged enough to get passed 12v6 to do additional discovery on. In addition, briefly to mention the 4.111, clearly at the whole city charter wasn't included in that particular attachment. And also the fact that we alleged that there was an employee handbook that was in writing, that at that point the city would be bound by, at least if we have a valid contract with vested benefits, that was in writing alleging the longevity payments. And again, I think if you look at the entire city charter, there are specific provisions dealing with employee salaries. And again, I think if you take the city's position of the burden that it would put on the cities as far as having a written contract for every single employee that they've ever hired, since they've worked for that, it is going to be something that in that instance is going to be potentially an awful lot to require of the cities in those particular instances. But given that it was fairly finite issues, I think that's generally what I've sort of wanted to point out. I think the briefs cover most of what I've said. If there are any additional questions, I'm more than happy to answer them to the best that I can. Thank you. He did not use, but I know that's not the way to. I have five minutes to talk about six cases. First, Howard Case, that case I think completely disputes what he has just said. That was where the complaint actually alleged a contract. And the court of appeals said not good enough. 12b6 granted because the complaint did not expressly state that there was a pre-order certificate. Now, with respect to whether a pre-order certificate applies to contracts that are to be executed beyond just the year that it's signed. What case are you talking about? I'm sorry, which one is that? The first one? What case you just talked about. I've only talked about one so far. The Howard Case. I believe that that was page 14 of my brief and date

. And if you take the argument of the city to one step further, then arguably you have to alleging the complaint that the particular contract was signed by somebody that was authorized to bind the city as a specific allegation in the complaint. And it's our contention in this particular instance that we have alleged enough to get passed 12v6 to do additional discovery on. In addition, briefly to mention the 4.111, clearly at the whole city charter wasn't included in that particular attachment. And also the fact that we alleged that there was an employee handbook that was in writing, that at that point the city would be bound by, at least if we have a valid contract with vested benefits, that was in writing alleging the longevity payments. And again, I think if you look at the entire city charter, there are specific provisions dealing with employee salaries. And again, I think if you take the city's position of the burden that it would put on the cities as far as having a written contract for every single employee that they've ever hired, since they've worked for that, it is going to be something that in that instance is going to be potentially an awful lot to require of the cities in those particular instances. But given that it was fairly finite issues, I think that's generally what I've sort of wanted to point out. I think the briefs cover most of what I've said. If there are any additional questions, I'm more than happy to answer them to the best that I can. Thank you. He did not use, but I know that's not the way to. I have five minutes to talk about six cases. First, Howard Case, that case I think completely disputes what he has just said. That was where the complaint actually alleged a contract. And the court of appeals said not good enough. 12b6 granted because the complaint did not expressly state that there was a pre-order certificate. Now, with respect to whether a pre-order certificate applies to contracts that are to be executed beyond just the year that it's signed. What case are you talking about? I'm sorry, which one is that? The first one? What case you just talked about. I've only talked about one so far. The Howard Case. I believe that that was page 14 of my brief and date. It should, in fact, just came out May 7, 2013 shortly before the hearing before Judge Eagles. That's the court of appeals, okay? North County Court of Appeals clearly says plaintiff alleged in the contract, I mean, in the complaint there was a contract still dismissed 12b6 because of failure to say affirmatively that there was a pre-order certificate. Yeah, but we have the Myers case talking about this exception to the rule. Is there any case that also talks about the exception to the rule and says for some reason it doesn't apply? First of all, the statute doesn't have an exception. This is a court-made exception. In fact, the Myers case stated at page 7.4. It looks to me like General Statue 159-28 per NBA is the statute. Maybe it's not. It is, but it says provides that statute. This is quoting the Myers case. Provides no guidance as to whether pre-order certificate is required for obligation that will come due in future years. They're saying the statute doesn't say it. So the court appeals and that panel came up with this exception. The problem though is that, what was it, seven years before another panel in the Wattaga County case directly was faced with a contract that was to be executed in the future. But they talked about the act being outside the powers of the town council. That was the basis for the decision there. Well, that was one of the basis of the decision there. But the other basis was in subpart or part two where it would have talked about 159-28. So specifically, now if you say that that's a dicta, then definitely the Wattaga County case that was decided seven years earlier definitely is a precedent that this court should apply. And in Wattaga, they had a contract with two cities that would have been executed in the future. In fact, actually it was executed for at least three years

. It should, in fact, just came out May 7, 2013 shortly before the hearing before Judge Eagles. That's the court of appeals, okay? North County Court of Appeals clearly says plaintiff alleged in the contract, I mean, in the complaint there was a contract still dismissed 12b6 because of failure to say affirmatively that there was a pre-order certificate. Yeah, but we have the Myers case talking about this exception to the rule. Is there any case that also talks about the exception to the rule and says for some reason it doesn't apply? First of all, the statute doesn't have an exception. This is a court-made exception. In fact, the Myers case stated at page 7.4. It looks to me like General Statue 159-28 per NBA is the statute. Maybe it's not. It is, but it says provides that statute. This is quoting the Myers case. Provides no guidance as to whether pre-order certificate is required for obligation that will come due in future years. They're saying the statute doesn't say it. So the court appeals and that panel came up with this exception. The problem though is that, what was it, seven years before another panel in the Wattaga County case directly was faced with a contract that was to be executed in the future. But they talked about the act being outside the powers of the town council. That was the basis for the decision there. Well, that was one of the basis of the decision there. But the other basis was in subpart or part two where it would have talked about 159-28. So specifically, now if you say that that's a dicta, then definitely the Wattaga County case that was decided seven years earlier definitely is a precedent that this court should apply. And in Wattaga, they had a contract with two cities that would have been executed in the future. In fact, actually it was executed for at least three years. And so when the plaintiff sued for a breach of that contract that was actually to be executed in the future, the court said no 159-28 requires a pre-order certificate. There is none there. There's none alleged there. Therefore, case dismissed. But yet the court did not expressly in the words that the Myers case did talk about whether it only applies to executable contracts in one year or not. But the fact is the court appeals in Wattaga had the same statute looked at the same wording and decided that even though the contract was to be executed in future years, you still need a pre-order certificate. And frankly, what was it four years later in the LNS leasing incorporated case, same thing. And obligation was to be executed the following year, not in the same year. And yet the court said one-dash 159-28 applies. What do you say about the town on Mount Pleasant case? Excuse me. Town on Mount Pleasant, which followed Myers seemingly. Well, I think in that case that what they, you've told me to one inside Myers is, yes. This is the problem we have in North Carolina. Yeah, but now it's a problem for this court. If that North Carolina court is all over the place. Why shouldn't we defer to the Let's Stay Court working out? Exactly. Well, because I think under the press in North Carolina where a subsequent panel cannot overrule another, it is an easy task for you to simply follow Wattaga County, which is directly on point. It's the first one to decide. In fact, later in 2001, data general followed that same principle. What does it mean under North Carolina law discretionary review improbidately granted? According to the appellate courts, first of all, you're not to read anything into that at all. Of course. But

. And so when the plaintiff sued for a breach of that contract that was actually to be executed in the future, the court said no 159-28 requires a pre-order certificate. There is none there. There's none alleged there. Therefore, case dismissed. But yet the court did not expressly in the words that the Myers case did talk about whether it only applies to executable contracts in one year or not. But the fact is the court appeals in Wattaga had the same statute looked at the same wording and decided that even though the contract was to be executed in future years, you still need a pre-order certificate. And frankly, what was it four years later in the LNS leasing incorporated case, same thing. And obligation was to be executed the following year, not in the same year. And yet the court said one-dash 159-28 applies. What do you say about the town on Mount Pleasant case? Excuse me. Town on Mount Pleasant, which followed Myers seemingly. Well, I think in that case that what they, you've told me to one inside Myers is, yes. This is the problem we have in North Carolina. Yeah, but now it's a problem for this court. If that North Carolina court is all over the place. Why shouldn't we defer to the Let's Stay Court working out? Exactly. Well, because I think under the press in North Carolina where a subsequent panel cannot overrule another, it is an easy task for you to simply follow Wattaga County, which is directly on point. It's the first one to decide. In fact, later in 2001, data general followed that same principle. What does it mean under North Carolina law discretionary review improbidately granted? According to the appellate courts, first of all, you're not to read anything into that at all. Of course. But. And I get that. But in reality, I'll just say what reality is. But I've heard other judges and justices have sent to me. They've decided, you know what, the time's not right to make this decision. We're going to wait to another case. So it's like, sir, sir dismissed. Correct. You cannot, it does not create any precedent at all. We want somebody wants to do a rebuttal. Your brother over here apparently takes a different view. Well, and I think that yes, one of your questions, the only time you do have, like, you know, one way to deal with that. When there's a descent, but the sit is when there's a descent, or if there's a substantial constitution, but other than that, that it's not uncommon in the courts to take a look at it. And then, so I wish it to take it to get. Right. There the Nile doesn't make it. It doesn't change. Right. So, so Myers is out there. My and the court of appeals is citing Myers, even as late as 2012. The Supreme Court of North Carolina looks at it says, we don't want to get into this. And I understand that's not precedent. It was not binding on us in any way, shape or form

. And I get that. But in reality, I'll just say what reality is. But I've heard other judges and justices have sent to me. They've decided, you know what, the time's not right to make this decision. We're going to wait to another case. So it's like, sir, sir dismissed. Correct. You cannot, it does not create any precedent at all. We want somebody wants to do a rebuttal. Your brother over here apparently takes a different view. Well, and I think that yes, one of your questions, the only time you do have, like, you know, one way to deal with that. When there's a descent, but the sit is when there's a descent, or if there's a substantial constitution, but other than that, that it's not uncommon in the courts to take a look at it. And then, so I wish it to take it to get. Right. There the Nile doesn't make it. It doesn't change. Right. So, so Myers is out there. My and the court of appeals is citing Myers, even as late as 2012. The Supreme Court of North Carolina looks at it says, we don't want to get into this. And I understand that's not precedent. It was not binding on us in any way, shape or form. But you know what? If they won't fix it, I don't know how we can. Well, I think your honors as every federal court does, you have to predict what the North Country Supreme Court is going to do. And what you have now is you have the Natalga case and their line of cases with Natalga, LNS and data general on the city side when we want you to follow. And you have the Myers and the two 2012 case on the plaintiffs side. And I think your honors can try to predict what the North Country Supreme Court is going to do. Why would you do it? Well, to be able to decide this case. The North Carolina Supreme Court has had at least two as I read the record, at least two opportunities to get rid of Myers. And they took a close enough look at it to know what was going on. And they decided not to. I read the other way. They had a chance to get rid of a tall guy and data general in LNS and they decided not to. Now, I can't explain why our Supreme Court does not want to get addressed this. I can assure you though, this issue will be back up here if you're if you're a motion. We don't want to be clear on. Right. We would only decide state law issues that we had to. I mean, particularly we don't even have a certification procedure with that. That is true. What I'm saying is if your honors decide we're not going to put on this one. Do we give you a down or a lot of do any deference to the North Carolina judges? I mean, they've been down. They practice law down there and they've been dealing with it. We don't know the bus reading from down there

. But you know what? If they won't fix it, I don't know how we can. Well, I think your honors as every federal court does, you have to predict what the North Country Supreme Court is going to do. And what you have now is you have the Natalga case and their line of cases with Natalga, LNS and data general on the city side when we want you to follow. And you have the Myers and the two 2012 case on the plaintiffs side. And I think your honors can try to predict what the North Country Supreme Court is going to do. Why would you do it? Well, to be able to decide this case. The North Carolina Supreme Court has had at least two as I read the record, at least two opportunities to get rid of Myers. And they took a close enough look at it to know what was going on. And they decided not to. I read the other way. They had a chance to get rid of a tall guy and data general in LNS and they decided not to. Now, I can't explain why our Supreme Court does not want to get addressed this. I can assure you though, this issue will be back up here if you're if you're a motion. We don't want to be clear on. Right. We would only decide state law issues that we had to. I mean, particularly we don't even have a certification procedure with that. That is true. What I'm saying is if your honors decide we're not going to put on this one. Do we give you a down or a lot of do any deference to the North Carolina judges? I mean, they've been down. They practice law down there and they've been dealing with it. We don't know the bus reading from down there. Well, I'm not sure how you all decide who gets what which panel gets what cases. But a circuit law that says we do give different. A question of state law. Well, again, the dilemma you have, I don't envy you, is you've got two very distinct divergent. You can't harmonize them together. You got, but the thing you do have is an earlier case. But there were tall, mechanic case. That's never going to change. Never. Myers will always be later. Thank you. Thank you. We will come down and greet the lawyers and then go directly to our last.

We're ready to hear argument in our third case, number 13, 18, 20. Davis versus city of green. Morning, your orders. My name is Ken Kair. I'm an attorney from Greensboro, North Carolina. And I represent the city of Greensboro, North Carolina, and this appeal. I attempted in the initial brief and rep library to address all the matters and issues that I thought that this court should be aware of. And so what I'd like to do on this or argument is cut directly to the chase on several of the interesting issues that we have. And I've actually going to change up my plans. That's what I'm going to argue initially based upon what you all did and said. And the first argument today. And that was that a four circuit panel cannot overrule a prior decision of a different panel. And that actually is exactly the law in the North Carolina. That's an interesting principle. It is. And it's a North Carolina court appeals and embrace that. We can't even overrule a prior opinion of the same panel. Well, of course, unfortunately, North Carolina, there's no inbox if for court appeals. The only recourse is good to Supreme Court. There's no certification. Correct. Correct. You don't have that court of appeals on. I never have figured out how much story they have, I suppose, that it's a Supreme Court, too. Well, you've got a lot of issues involved in that. I will say they are getting often get away from your case. You bear with that. Well, no, they you only have 20 minutes. Okay. Well, it's not going to take me 20 minutes. The only thing. But again, North Carolina court appeals a subsequent panel cannot overrule a nervous panel. And this court is faced with, do you follow the decision that the plaintiffs want you to follow? And that is the Myers case. Or do you follow the earlier decision that would talk a county case that the city wants you to follow? And specifically, both those cases dealt with the applicability of NCGS, North Carolina General Statue 150, 9-28. And that is when the city, a city sued in North Carolina for breaching a contract, that statute indicates there must be a pre-certification or pre-autistic certification or certificate for there to be a valid contract. And Wittelga held that even though the contract was to be executed in future years, the statute applied. However, the Myers panel, some years later, held that no, that statute applies if the contract is to be executed that very same year that the contract was executed. How did you get this case up here? Got this up here because we had to be... You're up here on a cladder water dog. That is correct. And what did the judge... You invoked a sovereign immunity claim. A governmental immunity claim. A governmental immunity claim. And how did the judge rule on your government immunity claim? Obviously, denied. And... Well, she says here on their opinion, she says the community evidences, therefore, inappropriate for resolution at this stage. She won't pay for her for main opinion. That is correct. So, how did she... She says it's inappropriate for resolution. But it's not here because she... She... Because she failed to follow the law, which is in our brief, that as a matter of law, that the plaintiff had failed to plead that the city had a pre-ordered certificate. Now, but how did she rule on your immunity defense if she says it's inappropriate to rule on your immunity defense? Well, the best record is that she denied... A language of her order. Right. Her opinion. Well, because this court has to decide the issue de novo. Well, but the cladder water dog from the first elements of it is that the immunity claim that was invoked has been conclusively resolved against the claimant of the immunity. And that's Green City of Greensboro. So, did she conclusively resolve it when she said she wasn't going to resolve it? Well, she resolved it in the sense that she did not follow North Carolina law. So, she implied they've resolved it? Absolutely. In face of the proposition that she said I'm not going to resolve it, you're saying she's still resolved it. Exactly. But you don't explain that. I mean, I just... Well, actually... We've recklessly guard this jurisdictional stuff. Ununderstandable. For strictly on these interlocutorial appeals, because we get enough fields of final orders. We don't have to get into these interlocutorial things if we don't need to. We don't want to... We want to final order. We don't like piecemeal appeals. But that's... In this interlocutorial cladder water doctrine is an exception. But you've got a case here where the judge says I ain't going to resolve the immunity defense. I'm not going to resolve the immunity. That's what I'm talking about, like I'm West Virginia. And then you say, well, she resolved it anyway in the face of that, because she ultimately said everything else was denied. That's what she said in her order. Correct. And actually... So, you're saying that's what it is that gives you the rights come up. You said we've got immunity. She didn't explain anything about why she was denied immunity, but she resolved it enough that you can take the appeal. Absolutely. In fact... Maybe you're right, but the judge says it's inappropriate for resolution. So she didn't conclusively be resolved if I don't think if she said it was inappropriate for resolution. Well, from the city standpoint, she did resolve it. We feel we have an absolute right that the government immunity not to be sued for the breach of contract claim. I understand it. Claiming it, but the judge says it's inappropriate for resolution. But your judge down there said it was inappropriate. By her denied our motion. Now you want us to resolve it when she says she didn't. But by the judge doing what she did, she did effectively deny our right to be free from suit, which is a whole concept of the very concept of the different immunity. And I address that by way. It's a lot easier for us to review a decision where judges analyzed, particularly when it would implicate some state law, where the judges analyzed some state law principles with respect to governmental immunity in North Carolina, which would help us a lot. If we had a judge, if we had a 20 page opinion analyzed in governmental immunity in North Carolina, rather than opinion that says the immunity defense is inappropriate for resolution, then in order that says, I'll grant a couple things here, but I'm going to deny everything else. We would have preferred that here on an issue that had been explained to us. Well, but the fact that the judge denied our motion. And then both sides here kind of sweeping under the rug. You say there's immunity. There's immunity. There's immunity. So we got right to appeal. And they say, well, we don't think that right. But feel but nobody analyzes why we do it done. Actually, in the date, in the Davis case, in the brief, initial brief, footnote three on page 17, I actually addressed the issue because I was concerned, well, maybe the plaintiff in the argue, hold it. It's a jury issue. And there's a factual dispute. And that's what the courts are saying is, gosh, this is 1.59-28 seems to be so facts specific. Maybe we should develop some more facts. Well, the court in a state of cardiovascular Detroit, six-circuit case, was talking about if as a matter of law that the court should have acknowledged and accepted the governmental immunity defense, then even though the lower court went off on a tangent and said, well, there's a dispute of fact. And a pellet court can still, under his denobo right, hold that there is a governmental immunity based upon the plaintiffs' failure to properly plead a complaint. So I think, again, why should we do that? Sorry, what did you quote from? Oh, yeah, that's a page. Yeah, I got it. Okay. Footnote three. Why shouldn't we just treat, I understand the district court's order uses the word deny. But as Judge King was suggesting to you, did the district court actually just defer consideration? No, they did not. What could have done, yes, say? Where's the evidence, wait, wait, where's the evidence that it was denied other than the use of the word deny? I think that's pretty strong evidence that she denied it by using the word deny in her order. And if I disagree with that interpretation, and I interpret her deferral of the motion on governmental immunity, do you have a fallback argument? Well, the fallback argument, I respectfully disagree that the judge, if she really wanted to defer it, she would not have denied it. I understand you disagree and that I shouldn't do that. But if I did that, do you have a fallback argument? Well, the fallback is that the judge could have not denied it. And simply, there's no requirement to judge actually rule and decide the rule 12b6 motion. She could have actually said, you know what, I'm not even going to rule on this right now. I'm wearing essence holding the advance. I'm going to let you do some more. But that put it sounds like when she says the immunity defense is therefore inappropriate for resolution at this stage. That sounds like she's not going to rule on it now. But again, maybe later at this stage, the tension comes over and it is an order not, if this is the right order, it says as to all other causes of action, the motion is denied. Not exactly. And again, the question about that, that's what we got. I mean, that's what we got here. And you say that gives us the right or an obligation to hear your interlocutorial appeal on a claim of sovereign immunity or governmental immunity. As we remember when the North Carolina law, she says she was having some problems deciding it because of a factual issue that she wanted the facts to be developed some more. That is no different than the court. And that's one of the other reasons. If the fact relates to the immunity claim, we shouldn't hear it now. We ought to let the facts be determined and let it come up here on the facts. The reason why I'm here today is that respectfully with the judge is she was just wrong that there did not need to be developed in the facts. This court can look at the complaint and nothing else. And that's what you should do. But if we don't have a conclusive determination of the immunity claim, we don't have jurisdiction to decide anything else. If we stop there and the resolution of this appeal is appealed this miss. I'd agree if she's not denied the motion. If there is no order to deny the motion, I can't appeal that. There's for circuit president that helps you. I don't know why you would agree to that. The fact that it was so. I think she got something going out here. The fact that it was so sort of granted that the fact she denied it, I could actually bring this up to the court appeals. That's why I didn't even make a big issue of it. In fact, relegated the issue about factual dispute and a footnote. And the fact that the defense counsel did not mean the plaintiff's counsel and their responsibility also did not address that specific issue. Again, that's why I did not address it. But I do think that. Well, you do understand that you all can't decide whether we have jurisdiction. Oh, absolutely, absolutely. But I think the case law, certainly, and I cited and now that I hear, just referring to some for certain cases, I feel confident that this court does have jurisdiction. Again, if she had not denied it, she not entered the denial, I would not be here on this issue, whatsoever. But I thought it was very clear that she did not. I mean, what she was saying, frankly, is city Greensboro, as a matter of law, this complaint is satisfactory enough to get past 12b6. And what we're saying is no, you're honored. And we're coming to this court for correction that on the face of the complaint, which you have to look at at 12b6, the government to immunity stands. The plaintiff has failed to eledge sufficiently a contract that would basically have no governing immunity. So I do think that this court does have jurisdiction to hear this appeal. And if we were to agree with you, what would be left of everything? Right. But these two- Equal protections out of the case, right? What else would be left? Everything? Right. So you're just here on the three-breacher contract. That is it. Which council are they? They actually differ from case to case. Okay. I'm sorry. We can figure that out. Yeah. That's somewhat confusing because as your honor is a part of the four different complaints, they're pretty much the same thing, but they have different paragraph numbers, et cetera. In fact, if you had the unfortunate exercise having to read each one of these four briefs, they all basically said the same thing. You're up here on three counts in each complaint. Yeah. Basically. And you admit that the rest of them don't have anything to do with it. No, we didn't appeal it. I mean, that's down in the four-circ. I mean, down in the middle district. Sort of because I did not think that we had a right to appeal anything that was not related to government immunity. That would be an appeal into the locker-tour. So that's down there. We are just on those issues that I appealed on those calls of action with respect to- Was that mainly just the slow-to-case down? Not at all. I don't want to- Case is not slowed down, believe me. We've had this outside the record. The discovery is continuing. The discovery is continuing. The position is taken, et cetera. That is not slow-to-case down what's left. We can hear from you in Rebellul unless you want to use your Rebellul time right now. Oh. No, I do want to talk about a little bit about the dispute between the Wattaga and Myers, but I can do that with your vote. Okay, thank you. May I please the court? My name is Torin Furri and I represent the plaintiff, Apalees, and the four various suits. I'm going to primarily focus on the Davis case because I think that is the one that was the main opinion that all of the other opinions basically followed. And- Why were different complaints lost? I mean, it's just- when you get this file, it's just kind of crazy. Well, I wasn't involved in that initial decision, but I will say I think part of it was you were dealing with different departments, meaning some are police officers, some are firefighters, we were dealing with different entities at that particular time. And I think we had different times as to when they came and signed up as far as being willing to proceed. You had limited questions if you didn't go for- I mean, I would just sort of think you wait till you got everybody. Well, anyway, absolutely. Obviously, yes. We might have- and it was mentioned in the brief that was one of the reasons why we mentioned in the delay was the fact that obviously there would be a potential statute of limitations for some folks if they didn't file in a particular time. So that's just logistically the way we had to do it. With regard to Judge King's questions, obviously that was raised in our brief, but I'm not aware of any four circuit cases that were cited. Obviously, if the court doesn't have jurisdiction because it's not appealable, then at this point there is no basis for this court to proceed with this opinion. Now with regard to- answered your question regarding Judge Eagles' opinion, it clearly left open for a later time as to whether she could decide that sovereign immunity could apply at the summer judgment stage once the facts were further developed through discovery. So in that sense, there hasn't been any final decision on that particular issue. Does that make it different? And to be honest with you, I don't know the answer to that. To better answer the question of what's left Judge Davis in this particular case, according to the briefs, basically you're dealing with the contract issues for the long-jeb of EPI. That's what's left for this court's decision. There are other claims that will still remain open regardless of this court's ruling that will proceed. Does this mean you regard the contract claims as being the heart of the- No, there's- Because it was just hard to understand exactly why we were having an interlock story appeal on what seemed to be three of many. Well, there's multiple issues. There's issues of whether they- At my point, but I thought maybe you were saying will these contract issues for the ones that are driving the club? No, I'm sorry. They're the ones that we're dealing with on this appeal. That's what the appeal is dealing with the long-jeb of issues and whether the breach of contract claims can proceed against the City of Greensboro. And the two basic issues there, once you get past the jurisdictional issue, is the 159-28A issue, which is the pre-audit certificate. For a couple of reasons, the plaintiffs would submit that the claim can proceed. One is the Myers case, which the Myers case specifically held in interpreting the specific provision of 159-28A, which says where the contract obligation cannot be completed within the same year. That it's an exception. And specifically in the Myers case, the court said that because the severance provision or obligation did not occur in the same year, the pre-audit certificate requirement did not apply. They say that this earlier case, what Toggle County was contrary to that? Well, I think that the difference is, is the distinguishing factor. The what Toggle County case doesn't deal with that particular exception in the statute. It's not even discussed. And I think one important thing to note about the Myers case is the fact that it was decided 15 years ago. Legislature has not stepped in and amended that exception to the statute. And it makes some sense. Because in this particular instance, there's no dispute. The longevity payments were not going to occur in the same year that the person was hired under the employment contract that were alleging. And the rationale for that is that another legislative session could appropriate the money. Is that it? Well, it's not the legislative. Basically, each local government applied jurisdiction. They could appropriate new money in the next year. Exactly. You could do a new budget each year. And not only that, Judge Montz, I think the other thing that's important is obviously with the longevity pay, there's a lot of contingencies that are going to occur as a result of that, meaning that you may hire 100 employees in the first year, but you may have 10 that are still there five years later. Yeah, but the exception doesn't go to your particular facts situation. The exception goes to not that doesn't have to be within one year. Well, correct. But I think in that instance, it encompasses more than our facts situation, but certainly it does encompass our facts situation. Because the first longevity payment would have occurred five years. I see what you think. Yeah. And I think what my point is is that if you get hired in your one, you may not have 20 people that are still in the police department or the fire department or other city entity that would still exist. So you're not going to budget all of those in five years from now. And that's the reason, in my opinion, for the exception. And also the RSB case, again, cites this particular opinion with authority for the same proposition and would contend to this court that the Myers case. And you're bound by the Myers case. It's North Carolina law. And that's what exists and that's what we have. The other issue with regard to 159-28A, which is dealt with in a footnote, one of the stories, there's a specific provision dealing with payroll accounts, where if it's in an impressed account where in that particular instance, it's paid as a payroll account, then in that instance, you don't have to have the separate pre-audit certificate for the individual contract in this particular instance. And I think that's one of the things that bothered judge. I was not at the argument, but I obviously was reported back to me. One of the things that sort of concerns judge eagles with the city's position is that you could hire an employee on day one, and then on day 31, just say, okay, you don't have a pre-audit certificate. So therefore, we're going to change your rate of pay, because we didn't, at that point, you didn't have, we're not going to pay you $15 an hour because it wasn't a pre-audit certificate. We're going to pay you minimum wage instead. And she had a concern with that being the city's position in this particular circumstance. And ultimately, one thing that I think is somewhat key with regard to the prior cases dealing with $15, $59,000, $28,000, in addition to the more than one year obligation is the fact. And all of those cases pretty much there was some other evidence that the certificate didn't exist either. There was an affidavit from the city. There was where the party withdrew the claim of breach of contract where the Howard case, specifically, where they admitted that the person that went to the mediation didn't have the authority to enter into the agreement. You had the ABC board case where specifically the contract, then, of itself, was ultra-voters. It wasn't something that the city or county could do. And therefore, the contract never would have been valid to begin with regardless of any other requirements. And in this instance, it's interesting that unlike at least one of the other cases, there was no affidavit filed by the city to indicate that the pre-audit certificate didn't exist. And that's one of the reasons why, I think, again, the court wanted to develop some facts to be able to determine everything from a contract that was by our allegation 20 years ago, which you have to accept is true. At least for Officer Smedzick, and I don't remember all the other higher dates for the other ones. And so for that reason, 159-28A just doesn't apply. And I think the Myers case is by far the easiest way to decide that. The other area in the brief that I want to address briefly, it wasn't addressed in great length, and either one of these particular briefs, was the allegation that, because the word written contract wasn't in the allegation of the complaint that that's enough for this court to reverse Judge Eagles. And one, I think, goes back to your point, Judge King, which is, in this instance, certainly that hasn't been decided other than the fact that we have alleged there's a valid contract, which plaintiffs would argue means that you've met all of the requirements of a contract, meaning that it's in writing if it's required to be. If it's that it's got adequate consideration, that it was formed by somebody that was bound by it. And if you take the argument of the city to one step further, then arguably you have to alleging the complaint that the particular contract was signed by somebody that was authorized to bind the city as a specific allegation in the complaint. And it's our contention in this particular instance that we have alleged enough to get passed 12v6 to do additional discovery on. In addition, briefly to mention the 4.111, clearly at the whole city charter wasn't included in that particular attachment. And also the fact that we alleged that there was an employee handbook that was in writing, that at that point the city would be bound by, at least if we have a valid contract with vested benefits, that was in writing alleging the longevity payments. And again, I think if you look at the entire city charter, there are specific provisions dealing with employee salaries. And again, I think if you take the city's position of the burden that it would put on the cities as far as having a written contract for every single employee that they've ever hired, since they've worked for that, it is going to be something that in that instance is going to be potentially an awful lot to require of the cities in those particular instances. But given that it was fairly finite issues, I think that's generally what I've sort of wanted to point out. I think the briefs cover most of what I've said. If there are any additional questions, I'm more than happy to answer them to the best that I can. Thank you. He did not use, but I know that's not the way to. I have five minutes to talk about six cases. First, Howard Case, that case I think completely disputes what he has just said. That was where the complaint actually alleged a contract. And the court of appeals said not good enough. 12b6 granted because the complaint did not expressly state that there was a pre-order certificate. Now, with respect to whether a pre-order certificate applies to contracts that are to be executed beyond just the year that it's signed. What case are you talking about? I'm sorry, which one is that? The first one? What case you just talked about. I've only talked about one so far. The Howard Case. I believe that that was page 14 of my brief and date. It should, in fact, just came out May 7, 2013 shortly before the hearing before Judge Eagles. That's the court of appeals, okay? North County Court of Appeals clearly says plaintiff alleged in the contract, I mean, in the complaint there was a contract still dismissed 12b6 because of failure to say affirmatively that there was a pre-order certificate. Yeah, but we have the Myers case talking about this exception to the rule. Is there any case that also talks about the exception to the rule and says for some reason it doesn't apply? First of all, the statute doesn't have an exception. This is a court-made exception. In fact, the Myers case stated at page 7.4. It looks to me like General Statue 159-28 per NBA is the statute. Maybe it's not. It is, but it says provides that statute. This is quoting the Myers case. Provides no guidance as to whether pre-order certificate is required for obligation that will come due in future years. They're saying the statute doesn't say it. So the court appeals and that panel came up with this exception. The problem though is that, what was it, seven years before another panel in the Wattaga County case directly was faced with a contract that was to be executed in the future. But they talked about the act being outside the powers of the town council. That was the basis for the decision there. Well, that was one of the basis of the decision there. But the other basis was in subpart or part two where it would have talked about 159-28. So specifically, now if you say that that's a dicta, then definitely the Wattaga County case that was decided seven years earlier definitely is a precedent that this court should apply. And in Wattaga, they had a contract with two cities that would have been executed in the future. In fact, actually it was executed for at least three years. And so when the plaintiff sued for a breach of that contract that was actually to be executed in the future, the court said no 159-28 requires a pre-order certificate. There is none there. There's none alleged there. Therefore, case dismissed. But yet the court did not expressly in the words that the Myers case did talk about whether it only applies to executable contracts in one year or not. But the fact is the court appeals in Wattaga had the same statute looked at the same wording and decided that even though the contract was to be executed in future years, you still need a pre-order certificate. And frankly, what was it four years later in the LNS leasing incorporated case, same thing. And obligation was to be executed the following year, not in the same year. And yet the court said one-dash 159-28 applies. What do you say about the town on Mount Pleasant case? Excuse me. Town on Mount Pleasant, which followed Myers seemingly. Well, I think in that case that what they, you've told me to one inside Myers is, yes. This is the problem we have in North Carolina. Yeah, but now it's a problem for this court. If that North Carolina court is all over the place. Why shouldn't we defer to the Let's Stay Court working out? Exactly. Well, because I think under the press in North Carolina where a subsequent panel cannot overrule another, it is an easy task for you to simply follow Wattaga County, which is directly on point. It's the first one to decide. In fact, later in 2001, data general followed that same principle. What does it mean under North Carolina law discretionary review improbidately granted? According to the appellate courts, first of all, you're not to read anything into that at all. Of course. But. And I get that. But in reality, I'll just say what reality is. But I've heard other judges and justices have sent to me. They've decided, you know what, the time's not right to make this decision. We're going to wait to another case. So it's like, sir, sir dismissed. Correct. You cannot, it does not create any precedent at all. We want somebody wants to do a rebuttal. Your brother over here apparently takes a different view. Well, and I think that yes, one of your questions, the only time you do have, like, you know, one way to deal with that. When there's a descent, but the sit is when there's a descent, or if there's a substantial constitution, but other than that, that it's not uncommon in the courts to take a look at it. And then, so I wish it to take it to get. Right. There the Nile doesn't make it. It doesn't change. Right. So, so Myers is out there. My and the court of appeals is citing Myers, even as late as 2012. The Supreme Court of North Carolina looks at it says, we don't want to get into this. And I understand that's not precedent. It was not binding on us in any way, shape or form. But you know what? If they won't fix it, I don't know how we can. Well, I think your honors as every federal court does, you have to predict what the North Country Supreme Court is going to do. And what you have now is you have the Natalga case and their line of cases with Natalga, LNS and data general on the city side when we want you to follow. And you have the Myers and the two 2012 case on the plaintiffs side. And I think your honors can try to predict what the North Country Supreme Court is going to do. Why would you do it? Well, to be able to decide this case. The North Carolina Supreme Court has had at least two as I read the record, at least two opportunities to get rid of Myers. And they took a close enough look at it to know what was going on. And they decided not to. I read the other way. They had a chance to get rid of a tall guy and data general in LNS and they decided not to. Now, I can't explain why our Supreme Court does not want to get addressed this. I can assure you though, this issue will be back up here if you're if you're a motion. We don't want to be clear on. Right. We would only decide state law issues that we had to. I mean, particularly we don't even have a certification procedure with that. That is true. What I'm saying is if your honors decide we're not going to put on this one. Do we give you a down or a lot of do any deference to the North Carolina judges? I mean, they've been down. They practice law down there and they've been dealing with it. We don't know the bus reading from down there. Well, I'm not sure how you all decide who gets what which panel gets what cases. But a circuit law that says we do give different. A question of state law. Well, again, the dilemma you have, I don't envy you, is you've got two very distinct divergent. You can't harmonize them together. You got, but the thing you do have is an earlier case. But there were tall, mechanic case. That's never going to change. Never. Myers will always be later. Thank you. Thank you. We will come down and greet the lawyers and then go directly to our last