McCullers v. Lewis
McCullers v. Lewis
Opinion
*217 Defendants Tayloria Lewis and Michael Ayodele appeal from an order denying their motions to dismiss Plaintiffs' complaint under North Carolina Rule of Civil Procedure 12 and on estoppel grounds. Defendants contend that the trial court erred by failing to conclude that (1) Defendants were shielded from suit by the doctrines of sovereign immunity and governmental immunity and (2) this lawsuit is an improper collateral attack on the decision of another trial court judge not to allow Defendants to be joined in a separate proceeding. We dismiss in part, affirm in part, and reverse in part.
I. Background
On 29 November 2017, Plaintiffs filed their complaint in Wake County Superior Court *529 against Defendants, who both work for the Raleigh Housing Authority ("RHA"). In their complaint, Plaintiffs seek damages in connection with Defendants' alleged failure to transfer Plaintiffs to another apartment following various issues Plaintiffs allege to have experienced at their RHA-administered apartment, and bring causes of action for (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, and (3) negligence, as well as a claim for (4) punitive damages.
On 19 February 2018, Defendants filed motions to dismiss the complaint under N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), 12(b)(2), and 12(b)(6) (2017), and on estoppel grounds, as well as an answer to the complaint. Defendants' motions were heard on 26 April 2018, and on 10 May 2018 the trial court denied Defendants' motions in full. Defendants timely appealed to this Court on 8 June 2018.
*218 II. Appellate Jurisdiction
We first address whether this Court has jurisdiction to hear Defendants' appeal from the trial court's denials of their motions to dismiss.
The trial court's denials of Defendants' motions to dismiss are interlocutory orders from which there is generally no right of immediate appeal.
Goldston v. Am. Motors Corp.
,
Defendants made motions to dismiss the complaint under Rules 12(b)(1) (lack of subject matter jurisdiction), 12(b)(2) (lack of personal jurisdiction), and 12(b)(6) (failure to state a claim upon which relief can be granted), as well as on estoppel grounds, all of which were denied by the trial court in its interlocutory order. But as a threshold matter, the statement of the grounds for appellate review in Defendants' brief only argues that the trial court's denial of its Rule 12(b)(2) motion affects a substantial right. Defendants thus fail to satisfy their burden under Appellate Rule 28(b) as to all but their Rule 12(b)(2) argument, which renders Defendants' appeal of the denial of their Rule 12(b)(1), Rule 12(b)(6), and estoppel motions all subject to dismissal.
See
Bezzek v. Bezzek
, --- N.C. App. ----, ----,
Even had Defendants' brief complied with Appellate Rule 28(b), their appeal of the denial of their Rule 12(b)(1), 12(b)(6), and estoppel
*219
motions would still be dismissed. Regarding the estoppel motion, the denial of a motion to dismiss affects a substantial right when the motion to dismiss "makes a colorable assertion that the claim is barred under the doctrine of collateral estoppel."
Fox v. Johnson
,
This Court's decision in
Can Am South, LLC v. State
,
Here, following
Can Am
, Defendants' appeal of the denials of their Rule 12(b)(1) and Rule 12(b)(6) motions to dismiss are not immediately appealable and thus not properly before us, and are dismissed. However, as Defendants correctly argue, the denial of their Rule 12(b)(2) motion to dismiss is an adverse ruling on personal jurisdiction. Thus Defendants' appeal thereof is properly before us pursuant to
*220 III. Standard of Review
"The standard of review to be applied by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural context confronting the court."
Banc of Am. Sec. LLC v. Evergreen Int'l Aviation, Inc.
,
Generally, when this Court reviews a trial court's denial of a Rule 12(b)(2) motion to dismiss, it considers whether the trial court's findings of fact are supported by competent evidence in the record; if so, the findings of fact are conclusive on appeal.
Inspirational Network
, 131 N.C. App. at 235, 506 S.E.2d at 758. Under N.C. Gen. Stat. § 1A-1, Rule 52(a)(2) (2017), however, the
*531
trial court is not required to make specific findings of fact unless a party so requests.
Banc of Am.
,
III. Analysis
In their Rule 12(b)(2) motion to dismiss, Defendants state, in relevant part, that the trial court "lacks ... personal jurisdiction over them on the basis that they are or were public employees or public officials at all times pertinent to this action and [were] therefore cloaked with sovereign or governmental immunity." By denying this motion, the trial court implicitly found facts supporting its implicit general conclusion that Defendants were subject to personal jurisdiction, and its implicit specific conclusion that Defendants could not shield themselves from suit via the doctrines of sovereign or governmental immunity.
As a technical matter, neither doctrine can itself protect Defendants, since sovereign immunity and governmental immunity only apply in actions brought against state and local governments, respectively, and not in actions brought against individuals like Defendants.
See
Wray v. City of Greensboro
,
Public official immunity is a " 'derivative form' of governmental immunity" that insulates a public official from personal liability for mere negligence in the performance of his duties unless his alleged actions were malicious or corrupt or fell outside and beyond the scope of his duties.
Fullwood v. Barnes
,
*222
This definition is dispositive as to one aspect of this case. Since public official immunity may only insulate public officials from allegations of mere negligence, only those of Plaintiffs' causes of action sounding in negligence come within the doctrine's reach. Accordingly, we affirm the trial court's denial of Defendants' motion to dismiss Plaintiffs' first cause of action for intentional infliction of emotional distress, which is an intentional tort claim.
See
Hawkins v. State
,
Regarding Plaintiffs' second and third causes of action, for negligent infliction of emotional distress and negligence respectively, we must review the Trial Record to determine *532 whether it supports a conclusion that Defendants (1) were not public officials (i.e., were mere public employees), (2) acted outside and beyond the scope of their official authority, or (3) acted with malice or corruption.
We address each element in turn.
a. Public Officials
Although public officials may not be held individually liable for mere negligence in actions taken without malice or corruption and within the scope of their duties, public employees may be held individually liable for such actions.
Isenhour v. Hutto
,
Our Supreme Court has "recognized several basic distinctions between a public official and a public employee, including: (1) a public office is a position created by the constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties."
Id. at 610,
*223
Leonard v. Bell
, --- N.C. App. ----, ----,
We have also noted that, in addition to the
Isenhour
factors, public officials also are often required to take an oath of office, while a public employee is not required to do so.
Fraley v. Griffin
,
1. Position Created by Constitution or Statute
"A position is considered created by statute when the officer's position ha[s] a clear statutory basis or the officer ha[s] been delegated a statutory duty by a person or organization created by statute or the Constitution."
Id
. at 428,
Defendants argue that their positions are "created by"
Our case law makes clear that where a statute expressly creates the authority to delegate a duty, a person or organization who is delegated and performs the duty on behalf of the person or organization in whom the statute vests the authority to delegate passes the first the
Isenhour
factor.
Baker
,
*224
created by [the North Carolina] Constitution" (emphasis omitted) );
Hobbs v. N.C. Dep't of Hum.
Res.
,
The Trial Record shows that many of Defendants' duties were created by
The significant overlap between RHA's delegable duties and Defendants' duties as described in Exhibits 3 and 4-which Plaintiffs did not contest with their own proffer of evidence, and which the uncontroverted allegations of Plaintiffs' complaint do not call into question-leads us to conclude that Defendants held positions created by statute.
2. Exercise of a Portion of the Sovereign Power
While the contours of what the sovereign power includes are not clearly defined by our case law, it is evident that a defendant claiming themself a public official for immunity purposes must show that they
*225
have exercised a portion of some power that only the sovereign may exercise, as granted to the sovereign by either the Constitution or a statute.
Compare
Baker
,
Plaintiffs concede that the "sovereign powers associated with housing authorities are set forth in
We accordingly conclude that Defendants exercised a portion of the sovereign power.
*534 3. Discretion
Our Supreme Court has said that public officials "exercise a certain amount of discretion, while employees perform ministerial duties. Discretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts."
Meyer v. Walls
,
The Trial Record shows that Defendants were tasked with, inter alia , "independently" (1) planning, directing, and coordinating the management of RHA housing units, (2) developing, implementing, and executing management plans, (3) formulating various policies and procedures, (4) evaluating overall program and employee performance, (5) recommending and preparing budgets, (6) inspecting properties for conformance with applicable regulations, (7) planning the work of and supervising staff, (8) analyzing rents, (9) counseling residents, and (10) resolving disputes involving residents, duties which led RHA to seek applicants with experience in "management" and "decision making."
Plaintiffs list certain of Defendants' duties that arguably require little judgment, and argue that Defendants "executed ministerial tasks[.]" But as Plaintiffs note, we cannot single out a handful of Defendants' duties in deciding whether they require discretion, but must consider Defendants' duties as a whole.
Baker
,
We accordingly conclude that Defendants' positions were discretionary in nature, and that Defendants were public officials in the meaning of Isenhour . 5
b. Scope of Authority
Even as public officials, sovereign immunity will not shield Defendants from suit for actions they took that fell outside and beyond the scope of their official authority.
*227
But the Trial Record contains no evidence that Defendants exceeded their authority in this case. Plaintiffs' conclusory allegation that "[u]pon information and belief, [Defendants] also exceeded their authority" is insufficient as a matter of pleading to withstand Defendants' motion to dismiss.
Meyer
, 347 N.C. at 114,
We accordingly conclude that the Trial Record does not support a conclusion that Defendants acted outside and beyond the scope of their official authority.
c. Malice or Corruption
Finally, even as public officials acting within the scope of their official authority, sovereign immunity will not shield Defendants from suit for actions they took which were malicious or corrupt. Plaintiffs make no allegation that Defendants' actions or inactions were corrupt, and we accordingly analyze only whether the Trial Record contains evidence that Defendants' actions or inactions were malicious.
"A malicious act is one which is: (1) done wantonly, (2) contrary to the actor's duty, and (3) intended to be injurious to another."
Fullwood
, 250 N.C. App. at 38,
It is well settled that absent evidence to the contrary, it will always be presumed that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. This presumption places a heavy burden on the party challenging *228 the validity of public officials actions to overcome this presumption by competent and substantial evidence. Moreover, [e]vidence offered to meet or rebut the presumption of good faith must be sufficient by virtue of its reasonableness, not by mere supposition. It must be factual, not hypothetical; supported by fact, not by surmise.
Strickland v. Hedrick
,
Beyond a conclusory allegation that Defendants "acted with malice," which is insufficient standing alone to withstand Defendants' motion to dismiss,
Meyer
, 347 N.C. at 114,
In sum, we conclude that the Trial Record does not support a conclusion that Defendants acted with malice or corruption.
IV. Conclusion
Because we conclude that Defendants (1) were not mere public employees, (2) did not act outside and beyond the scope of their official authority, and (3) did not act with malice or corruption, we conclude that Defendants were shielded from Plaintiffs' causes of action sounding in negligence by the public official immunity doctrine, and the trial court erred in denying Defendants' Rule 12(b)(2) motion to dismiss Plaintiffs' second and third causes of action for lack of personal jurisdiction.
*229 Defendants' appeal of the denial of their Rule 12(b)(1), 12(b)(6), and estoppel motions is dismissed, the denial of Defendants'
*536 Rule 12(b)(2) motion is affirmed as to Plaintiffs' first and fourth causes of action, and the denial of Defendants' Rule 12(b)(2) motion is reversed as to Plaintiffs' second and third causes of action. This case is remanded to the trial court for entry of an order dismissing Plaintiffs' second and third causes of action and for further proceedings consistent with this opinion.
DISMISSED IN PART, AFFIRMED IN PART, AND REVERSED IN PART.
Chief Judge MCGEE and Judge DIETZ concur.
Defendants' memorandum in support of their motions to dismiss appended a number of exhibits, most notably "job description[s]" describing the duties of those who hold the positions at RHA that Defendants allegedly held. The record does not reflect any objection by Plaintiffs to Defendants' submission of these documents, or to any use thereof, and Plaintiffs themselves cite to these documents in their appellate brief in describing Defendants' duties at RHA. As such, any argument that these documents do not accurately describe Defendants' duties at RHA is waived,
Inspirational Network, Inc. v. Combs
,
Given the close relationship between the governmental immunity doctrine and the public official immunity doctrine,
Fullwood
, 250 N.C. App. at 38,
Plaintiffs concede that RHA is an organization created by statute.
"Housing project" is statutorily defined as including "all real and personal property" and "buildings" "constructed [
inter alia
] [t]o provide safe and sanitary dwelling accommodations" for persons of modest incomes.
The Trial Record contains no clear indication of whether Defendants took an oath of office or not. But since this consideration is not dispositive to the
Isenhour
public-official analysis,
see
Baker
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.