New Hanover Cnty. Bd. of Educ. v. Stein ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-9
No. 339A18-2
Filed 11 February 2022
THE NEW HANOVER COUNTY BOARD OF EDUCATION
v.
JOSHUA H. STEIN, in his official capacity as Attorney General of the State of
North Carolina, and NORTH CAROLINA COASTAL FEDERATION, INC., and
SOUND RIVERS, INC.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 275 N.C. App. 132 (2020), reversing and remanding an order
entered on 12 October 2017 by Judge Paul C. Ridgeway in Superior Court, Wake
County, granting summary judgment in favor of defendant Joshua H. Stein, Attorney
General. On 14 April 2021, the Supreme Court allowed the Attorney General’s
petition for discretionary review as to additional issues and plaintiff New Hanover
County Board of Education’s conditional petition for discretionary review. Heard in
the Supreme Court on 9 November 2021.
Stam Law Firm, PLLC, by Paul Stam and R. Daniel Gibson, for plaintiff-
appellee.
Joshua H. Stein, Attorney General, by James W. Doggett, Deputy Solicitor
General, and Marc Bernstein, Special Deputy Attorney General, for defendant-
appellant.
The Southern Environmental Law Center, by Mary Maclean Asbill, Brooks
Rainey Pearson, and Blakeley E. Hildebrand, for intervenor-appellants.
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Ward and Smith, P.A., by Christopher S. Edwards and Marcus Gadson, for
amicus curiae Marcus Gadson.
ERVIN, Justice.
¶1 This case arises from the Board of Education’s challenge to the Attorney
General’s administration of an environmental enhancement grant program funded
by payments made by Smithfield Foods, Inc., and several of its subsidiaries pursuant
to a 2000 agreement between the Smithfield companies and the Attorney General.
After the Board of Education filed an amended complaint alleging that the payments
received from the Smithfield companies in accordance with the agreement amounted
to civil penalties that should have been made available to the public schools pursuant
to article IX, section, 7 of the North Carolina Constitution, the trial court granted
summary judgment in favor of the Attorney General. On appeal, the Court of Appeals
reversed, finding that the record disclosed the existence of genuine issues of material
fact that precluded the entry of summary judgment in the Attorney General’s favor.
This Court reversed the Court of Appeals’ decision on the grounds that the record did
not disclose the existence of any genuine issues of material fact and that the Attorney
General was entitled to judgment as a matter of law given that the undisputed
evidence demonstrated that the funds provided by the Smithfield companies did not
constitute civil penalties for purposes of article IX, section 7, of the North Carolina
Constitution and remanded this case to the Court of Appeals for further proceedings
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not inconsistent with its opinion. On remand, the Court of Appeals allowed the Board
of Education’s motion for supplemental briefing and filed an opinion holding that the
funds made available by the agreement were subject to a newly enacted statute
requiring all funds received by the State to be deposited in the State treasury and
that the Board of Education’s amended complaint sufficed to state a claim against
the Attorney General pursuant to this statute. As a result, the determinative issue
before this Court at this point is whether the Board of Education’s amended
complaint suffices to support a claim pursuant to N.C.G.S. § 147-76.1. After careful
consideration of the record in light of the applicable law, we reverse the decision of
the Court of Appeals and remand this case to the Court of Appeals for further remand
to the Superior Court, Wake County, with instructions to reinstate its earlier order
granting summary judgment in favor of the Attorney General.
I. Factual Background
A. Substantive Facts
¶2 After a five-year period during which hog waste lagoons in eastern North
Carolina ruptured or overflowed and spilled millions of gallons of waste into the
State’s waterways, then-Attorney General Michael F. Easley entered into an
agreement with Smithfield Foods, Inc., the state’s largest hog-farming operation, and
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several of its subsidiaries1 on 25 July 2000, pursuant to which the Smithfield
companies agreed to
(1) undertake immediate measures for enhanced
environmental protection on Company-owned
Farms and provide assistance to Contract Farmers
in undertaking these same measures;
(2) commit $15 million for the development of
Environmentally Superior Technologies for the
management of swine waste and to facilitate the
development, testing, and evaluation of potential
technologies on Company-owned Farms;
(3) install Environmentally Superior Technologies on
each Company-owned Farm in North Carolina and
provide financial and technical assistance to
Contract Farmers for the installation of these
technologies
(4) commit $50 million to environmental enhancement
activities;
(5) cooperate fully with the Attorney General to ensure
compliance with applicable laws, regulations,
policies and standards; and
(6) in cooperation with the Attorney General and all
other interested parties, take a leadership role in
enhancing the effectiveness of the Albemarle-
Pamlico National Estuary Program . . . .
In order to provide $50 million for use in funding environmental enhancement
activities in accordance with the agreement, the Smithfield companies agreed “to pay
1 The subsidiaries involved in the agreement include Brown’s of Carolina, Inc.;
Carroll’s Foods, Inc; Murphy Farms, Inc.; Carroll’s Foods of Virginia, Inc.; and Quarter M
Farms, Inc.
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each year for 25 years an amount equal to one dollar for each hog in which the
Companies . . . have had any financial interest in North Carolina during the previous
year, provided, however, that such amount shall not exceed $2 million in any year,”
with these funds to “be paid to such organizations or trusts as the Attorney General
will designate” as long as they were used “to enhance the environment of the State,
including eastern North Carolina, to obtain environmental easements, construct or
maintain wetlands and such other environmental purposes, as the Attorney General
deems appropriate.” In carrying out his obligations under the agreement, the
Attorney General was authorized to consult with representatives from the Smithfield
companies, the North Carolina Department of Environmental Quality,2 and “any
other groups or individuals he deems appropriate and may appoint any advisory
committees he deems appropriate.”
¶3 On 18 October 2002, the Smithfield companies, with the consent of then-
Attorney General Roy A. Cooper, entered an escrow agreement with RBC Centura
Bank3 pursuant to which the Smithfield companies agreed to deposit all funds
provided in accordance with the agreement into a bank account in which those funds
would be held for disbursement directly to recipients by the Attorney General. In
2 At the time the agreement was signed, the North Carolina Department of
Environmental Quality was known as the North Carolina Department of Environment and
Natural Resources.
3 In 2012, RBC Centura Bank was acquired by PNC Financial Services.
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accordance with the terms of the agreement, the Smithfield companies made an
annual deposit into the relevant account around the anniversary of the date upon
which they entered into their agreement with the Attorney General.
¶4 In January 2003, then-Attorney General Cooper established the
Environmental Enhancement Grants Program for the purpose of “improv[ing] the air,
water and land quality of North Carolina by funding environmental projects that
address the goals of the agreement between Smithfield and the Attorney General.”
On an annual basis, the program solicits applications from governmental agencies
and nonprofit entities, which are then reviewed by a panel consisting of
representatives of the North Carolina Department of Justice, the North Carolina
Department of Environmental Quality, the North Carolina Department of Natural
and Cultural Resources, various academic institutions, and certain nonprofit
organizations involved in conservation efforts. After the panel makes
recommendations to the Attorney General concerning the manner in which the
available grant funds should be disbursed, representatives of the Smithfield
companies have the opportunity to make recommendations to the Attorney General
as well. At the conclusion of this process, the Attorney General selects the recipients
of the grants to be awarded in the exercise of his discretion and may designate up to
$500,000 for use by the individual grant recipients. During the period from 2000 to
2016, the Attorney General awarded more than $25 million pursuant to the
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agreement for the purpose of funding more than 100 separate initiatives that
addressed a variety of environmental problems, with the work to be performed using
these grant payments having included rehabilitating abandoned waste lagoons,
conserving wildlife habitats, improving water quality, reducing pollution from
agricultural and stormwater runoff, funding environmental research, and restoring
forests, shorelines, wetlands, and streams across North Carolina.
B. Procedural History
1. The First Appeal
¶5 On 18 October 2016, Francis X. De Luca filed a complaint in the Superior
Court, Wake County, in which he alleged that the payments made by the Smithfield
companies pursuant to the agreement constituted penalties for purposes of article IX,
section 7, of the North Carolina Constitution, which requires that the “proceeds of all
penalties and forfeitures and of all fines collected in the several counties for any
breach of the penal laws of the State . . . shall be faithfully appropriated and used
exclusively for maintaining free public schools.” In his complaint, Mr. De Luca
requested that the Attorney General “be preliminarily and permanently enjoined
from distributing payments made pursuant to [the agreement] to anyone other than
to the Civil Penalty and Forfeiture Fund” and that the Attorney General be required
to recover all program-related funds that had been distributed to grant recipients
within the last three years and deposit those monies into the Civil Penalties and
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Forfeiture Fund. On 25 January 2017, Mr. De Luca filed an amended complaint that
added the New Hanover County Board of Education as an additional party plaintiff
and substituted the current Attorney General, Joshua H. Stein, acting in his official
capacity, as a party defendant.
¶6 On 12 October 2017, the trial court entered an order granting summary
judgment in favor of the Attorney General on the grounds that payments made
pursuant to the program did not constitute “penalties,” “forfeitures,” or “fines” that
had been collected for “any breach of the penal laws of the State” subject to article IX,
section 7, of the North Carolina Constitution. On the same date, the trial court
entered an order allowing the North Carolina Coastal Federation, Inc., and Sound
Rivers, Inc., to intervene as party-defendants. Mr. De Luca and the Board of
Education noted an appeal from the trial court’s summary judgment order to the
Court of Appeals.
¶7 On 4 September 2018, a divided panel of the Court of Appeals filed an opinion
holding that, while Mr. De Luca lacked standing to assert a claim against the
Attorney General pursuant to article IX, section 7, of the North Carolina
Constitution, the Board of Education was entitled to assert such a claim on the theory
that, in the event that its claim against the Attorney General proved successful, it
was entitled to receive a portion of the funds at issue in this case. De Luca v. Stein,
261 N.C. App. 118, 128 (2018). In addition, the Court of Appeals held that the record
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disclosed the existence of “genuine issues of material fact” concerning the extent to
which payments made pursuant to the agreement were intended to penalize the
Smithfield companies or to deter them from violating the State’s environmental laws
in the future, rendering them subject to the requirements of article IX, section 7, of
the North Carolina Constitution. Id. at 136. As a result, the Court of Appeals
reversed the trial court’s summary judgment order and remanded this case to the
Superior Court, Wake County, for a trial on the merits with respect to the Board of
Education’s claim. Id.¶8 After the Attorney General and the environmental intervenors noted an appeal
to this Court on the basis of a dissent by former Judge Wanda Bryant and after we
granted petitions for discretionary review with respect to additional issues filed by
all of the parties to this case, this Court filed an opinion on 3 April 2020 in which it
reversed the Court of Appeals’ decision and remanded this case to the Court of
Appeals for further proceedings not inconsistent with its opinion. New Hanover Cty.
Bd. of Educ. v. Stein, 374 N.C. 102 (2020). Although this Court agreed that the Board
of Education was authorized to assert a claim against the Attorney General pursuant
to article IX, section 7, of the North Carolina Constitution, we noted that it did not
have standing “to assert that the Attorney General lacked the authority to enter the
agreement at all and appropriately made no such argument.” Id. at 117. In addition,
we held that the Court of Appeals had erred by determining that the record disclosed
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the existence of a genuine issue of material fact concerning the extent, if any, to which
payments made pursuant to the agreement constituted penalties for purposes of N.C.
Const. art. IX, § 7, and concluded that the trial court had not erred by granting
summary judgment in favor of the Attorney General with respect to the Board of
Education’s civil penalties clause claim. Id. at 123. As a result, we reversed the Court
of Appeals’ decision and remanded this case to the Court of Appeals “for any
additional proceedings not inconsistent with this opinion.” Id. at 123–24.
¶9 In a footnote that appeared at the end of our opinion, we acknowledged that
the General Assembly had recently enacted N.C. Sess. L. 2019-250, which took effect
on 1 July 2019, id. at 124 n.8, and that the statutory provision in question had
amended chapter 147, article 6, of the North Carolina General Statutes by adding a
new section that provided, in pertinent part, that, “[e]xcept as otherwise provided by
law, all funds received by the State, including cash gifts and donations, shall be
deposited in the State treasury,” N.C.G.S. § 147-76.1(b) (2021); that, “[e]xcept as
otherwise provided by subsection (b) of this section, the terms of an instrument
evidencing a cash gift or donation are a binding obligation of the State,” N.C.G.S.
§ 147-76.1(c); and that “[n]othing in this section shall be construed to supersede, or
authorize a deviation from the terms of an instrument evidencing a gift or donation
setting forth the purpose for which the funds may be used,” N.C.G.S. § 147-76.1(c).
After noting that “the parties [had] agreed that the provisions of newly-enacted
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N.C.G.S. § 147-76.1 would not have the effect of mooting this appeal,” we stated that
we would not attempt to construe the new statute or to apply it to the facts of this
case and expressed “no opinion as to what effect, if any, N.C.G.S. § 147-76.1 has on
the agreement or any past or future payments made thereunder.” Stein, 374 N.C. at
260.4
2. The Second Appeal
¶ 10 On 26 May 2020, the Board of Education filed a motion with the Court of
Appeals seeking leave to file a supplemental brief addressing the applicability of
N.C.G.S. § 147-76.1 to this case. The Court of Appeals allowed the Board of
Education’s motion for supplemental briefing on 18 June 2020. In its supplemental
brief, the Board of Education argued that N.C.G.S. § 147-76.1 applied to payments
made pursuant to the agreement on the grounds that those payments constituted
“funds received by the State” in the form of a “cash gift” and that the Attorney General
was required to deposit payments made pursuant to the agreement in the State
treasury. After acknowledging that the General Assembly had not enacted § 147-
76.1 until after the amended complaint had been filed, the Board of Education argued
that appellate courts “must apply the law in effect at the time it renders its decision,”
4 On 18 May 2020, this Court entered an order denying the Board of Education’s
petition for rehearing while modifying the wording contained in Footnote No. 8 as it appeared
in our original opinion. The language quoted in the text of this opinion reflects the wording
change that resulted from the modification that we made to the relevant footnote. See 374
N.C. 260 (2020).
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citing State v. Currie, 19 N.C. App. 241, 243 (1973), aff’d, 284 N.C. 562 (1974). As a
result, the Board of Education urged the Court of Appeals to hold that § 147-76.1
applied to the agreement and required the Attorney General to deposit all payments
that had been received from the Smithfield companies since 1 July 2019 and all future
payments received pursuant to the agreement into the State treasury.
¶ 11 In response, the Attorney General argued that, while it was “unclear if new
section 147-76.1 applies to Smithfield’s funding of the grant program,” he would, “out
of an abundance of caution,” transfer the only payment that had been received from
the Smithfield companies since 1 July 2019 to the State treasury and committed to
ensuring that all future payments received from the Smithfield companies would be
deposited into the State treasury as well. The Attorney General also asserted that
N.C.G.S. § 147-76.1 had “no effect on the only claim that the [Board of Education had]
assert[ed] in its complaint,” which was that payments made pursuant to the
agreement were “subject to [the civil penalties clause] of the Constitution and must
go to the Civil Penalty and Forfeiture Fund.” For that reason, the Attorney General
contended that “[n]othing about the enactment of section 147-76.1 or the deposit of
the funding for the grant program into the state treasury” altered this Court’s
decision with respect to the civil penalties issue, so that “this case [was] over,” and
that, by asking the Court of Appeals to “apply” § 147-76.1 to this case, the Board of
Education was asking the Court of Appeals “to do nothing less than resolve a new
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claim” that was completely unrelated to the claim asserted in the amended complaint
despite the fact that “no such claim [had been] pleaded” in the Board of Education’s
amended complaint.
¶ 12 In addition, the Attorney General contended that, even if any claim that the
Board of Education might assert pursuant to N.C.G.S. § 147-76.1 was properly before
the Court of Appeals, that claim lacked merit. More specifically, the Attorney
General contended that the Board of Education lacked standing to assert a claim
pursuant to § 147-76.1 on the theory that, unlike article IX, section 7, of the North
Carolina Constitution, § 7, N.C.G.S. § 147-76.1 did not confer any “financial interest”
upon the Board of Education, with “some generalized grievance about the operation
of the grant program” being insufficient to support the assertion of a claim pursuant
to 147-76.1. Moreover, the Attorney General argued that a decision to deposit funds
received pursuant to the agreement into the State treasury would have no effect upon
the operation of the grant program because § 147-76.1(b) expressly provided that “the
terms of an instrument evidencing a cash gift or donation are a binding obligation of
the State.” For that reason, the Attorney General contended that the terms of his
agreement with the Smithfield companies, including the provisions giving him the
authority to administer the grant program, remained in effect even after the funds
provided pursuant to the agreement had been deposited into the State treasury.
Finally, the Attorney General claimed that, in the event that the Board of Education
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was merely seeking to have funds received pursuant to the agreement deposited into
the State treasury, any such claim had been rendered moot by virtue of the fact that
the relevant funds had already been placed there.
¶ 13 On 15 December 2020, a divided panel of the Court of Appeals filed an opinion
in which it reversed the trial court’s summary judgment order and remanded this
case to Superior Court, Wake County, for the entry of an order compelling the
Attorney General to transfer “all funds presently held” and “all funds received under
the [a]greement in the future” into the State treasury as required pursuant to
N.C.G.S. § 147-76.1. New Hanover Cty. Bd. of Educ. v. Stein, 275 N.C. App. 132, 141
(2020). After noting that this Court had remanded this case to the Court of Appeals
for “any additional proceedings not inconsistent with this opinion” and that
compliance with this instruction “include[d] determination of the applicability of
[§ 147-76.1],” the Court of Appeals concluded that it was entitled to resolve the issue
posited in the Board of Education’s supplemental brief on the merits without the
necessity for a remand to Superior Court, Wake County, given that “[n]either party
asserts there are any disputed facts” and that the issue of the applicability of § 147-
76.1 to the monies that the Attorney General received pursuant to the agreement
raised “purely a question of law.” Id. at 136–38.
¶ 14 In reaching this conclusion, the Court of Appeals began by observing that the
Attorney General had agreed that he had accepted the funds that had been made
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available pursuant to the agreement on behalf of the State and that N.C.G.S. § 147-
76.1 provided that “all funds received by the State, including cash gifts and donations,
shall be deposited into the State treasury.” Id. at 137; § 147-76.1(b). In light of that
set of facts, the Court of Appeals concluded that “[t]he statute clearly mandates these
are public funds, [that] they belong to taxpayers of the State, and [that they] are
required ‘to be deposited into the State treasury.’ ” Stein, 275 N.C. App. at 137
(quoting § 147-76.1(b)). According to the Court of Appeals, the fact that § 147-76.1
had not been enacted until after the filing of the amended complaint had no bearing
upon the proper resolution of this case given that the Attorney General did not raise
this issue on appeal and that, in any event, “[o]ur courts have held[ ] ‘[t]he general
rule is an appellate court must apply the law in effect at the time it renders its
decision.’ ” Id. (quoting Currie, 19 N.C. App. at 243). After acknowledging that
current law should not be applied in the event that doing so “would result in manifest
injustice or there is a statutory direction or legislative history to the contrary,” Bradly
v. Sch. Bd. of Richmond, 416 U.S. 696, 711 (1974), the Court of Appeals noted that
the Attorney General had not argued that applying § 147-76.1 to the facts of this case
would be manifestly unfair and that there was no “legislative history to indicate that
[§ 147-76.1] does not apply to these admittedly public funds.” Stein, 275 N.C. at 137.
¶ 15 The Court of Appeals rejected the Attorney General’s contention that the Board
of Education’s claim pursuant to N.C.G.S. § 147-76.1 represented a new claim for
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relief that had not been alleged in the amended complaint on the grounds that “[t]he
Board’s allegations are sufficient to provide the Attorney General with notice of the
transactions and occurrences showing entitlement to relief and is well within the
scope of [the Court of Appeals’] jurisdiction.” Id. In support of this determination,
the Court of Appeals pointed out that pleadings only needed to contain a “short and
plain statement of the claim sufficiently particular to give the court and the parties
notice of the transactions, occurrences, or series of transactions or occurrences,
intended to be proved showing that the pleader is entitled to relief,” N.C.G.S. § 1A-1,
Rule 8(a), so that “[t]he only question is whether the complaint ‘gives notice of the
events and transactions’ that allows ‘the adverse party to understand the nature of
the claim.’ ” Stein, 275 at 138 (quoting Haynie v. Cobb, 207 N.C. App. 143, 149 (2010)).
In addition, the Court of Appeals directed the parties’ attention to N.C.G.S. § 1A-1.
Rule 54(c), which provides that “every final judgment shall grant the relief to which
the party in whose favor it is rendered is entitled, even if the party has not demanded
such relief in his pleadings[,]” N.C.G.S. § 1A-1, Rule 54(c), and this Court’s opinion in
Holloway v. Wachovia Bank & Trust Co., in which we held that “[t]he prayer for relief
does not determine what relief ultimately will be awarded” but that, “[i]nstead, the
court should grant the relief to which a party is entitled, whether or not demanded in
his pleading,” 339 N.C. 338, 346 (1994). As a result, the Court of Appeals held that,
“[i]f the party makes a demand for relief, it is ‘not crucial that the wrong relief has
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been demanded’ ” given that the purpose of Rule 54(c), “is to provide ‘whatever relief
is supported by the complaint’s factual allegations and proof at trial.’ ” Stein, 275
N.C. at 138 (quoting Holloway, 339 N.C. at 346).
¶ 16 In applying these legal principles to the facts of this case, the Court of Appeals
stated that “[t]he Board’s original prayer for relief seeks deposit of [the funds received
pursuant to the agreement] into the State treasury in the Civil Penalty and Forfeiture
Fund,” that the Smithfield companies are “depositing $2 million dollars of admittedly
public funds per year into a private bank account for public environmental purposes,”
and that, “under the [a]greement, the Attorney General purports to exercise sole
authority to allocate and distribute these sums to his chosen recipients.” Id. at 139.
In addition, the Court of Appeals noted that the Board of Education had “requested
a preliminary and permanent injunction against the Attorney General to prevent
future distribution of these funds” and alleged that there was “a current and ongoing
course of future payments of public funds under the [a]greement.” Id. According to
the Court of Appeals,
[w]hether the funds should be deposited into the State
treasury for further appropriation and distribution or be
earmarked for the Civil Penalty and Forfeiture Fund is
immaterial as juxtaposed with deposits of public funds into
a private bank account with distributions therefrom and
recipients thereof within the Attorney General’s sole
discretion and control.
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Id. As a result, the Court of Appeals held that the allegations contained in the
amended complaint sufficed to state a claim for relief pursuant to N.C.G.S. § 147-
76.1. Id.
¶ 17 In addition, the Court of Appeals noted that it had recently held that the
General Assembly, rather than the Governor, had the authority to decide how certain
federal block grant awards should be spent; that “North Carolina courts have not
permitted members of the executive branch to exercise unbridled appropriation or
expenditure of unbudgeted public funds”; and that N.C.G.S. § 147-76.1 “mandates the
location and depository where the public money is to be deposited and held.” Stein,
275 N.C. App. at 140 (citing Cooper v. Berger, 268 N.C. App. 468 (2019), aff’d 376 N.C.
22 (2020)). In light of that set of circumstances, the Court of Appeals concluded that
“[t]he State Treasurer must receive, hold, and account for the disbursement of these
funds in accordance with the stated environmental purposes of the [a]greement” and
that “ ‘[n]o money shall be drawn from the State treasury but in consequence of
appropriations made by law . . . .’ ” Id. (quoting N.C. Const. art. V, § 7(1)). As a result,
the Court of Appeals reversed the trial court’s summary judgment order and
remanded this case to Superior Court, Wake County, “for entry of an order to compel
[the Smithfield companies] and the Attorney General to transfer and deposit all funds
presently held and those to be paid and received from [the Smithfield companies]
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under the [a]greement in the future into the State treasury in compliance with [§ 147-
76.1].” Id. at 141.5
¶ 18 In dissenting from the Court of Appeals’ decision, Judge Bryant concluded that
the Board of Education lacked standing to assert a claim against the Attorney
General pursuant to N.C.G.S. § 147-76.1. Id. at 142 (Bryant, J., dissenting). In Judge
Bryant’s view, the Board of Education had failed to advance any claim pursuant to
§ 147-76.1 at the time of its initial appeal, that the Board of Education could not have
done so because the relevant legislation had not been enacted at that time, and that
this Court had not addressed the issue at the time of its initial consideration of this
case. Id. According to Judge Bryant, “[t]he issue raised by the Board concerning
[N.C.G.S. § 147-76.1] is novel” and “is not, therefore, an ‘additional proceeding’ as
contemplated by the Supreme Court’s mandate” but is, instead, “an entirely new
proceeding which a trial court of competent jurisdiction must rule on before this Court
may consider arguments.” Id. at 142–43.
¶ 19 In addition, Judge Bryant disagreed with the Court of Appeals’ reliance upon
N.C.G.S. § 1A-1, Rules 8 and 54(c), on the theory that “[t]he Rules of Civil Procedure
5Although the Court of Appeals remand order mandated that all funds presently held
by the Attorney General pursuant to the agreement be deposited in the State treasury, the
Board of Education acknowledges that this portion of the Court of Appeals’ decision was
erroneous given that the enacting legislation specified that § 147-76.1 would “appl[y] to funds
received on or after” 1 July 2019 and asks that the Court refrain from affirming the Court of
Appeals decision with respect to funds received by the Attorney General prior to 1 July 2019.
See 2019 N.C. Sess. Laws 250, § 5.7.(c).
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apply to our trial courts,” citing N.C.G.S. § 1A-1, Rule 1 (“Scope of Rules”), and that,
while the appellate courts “are authorized to determine whether the trial courts
properly applied the Rules of Civil Procedure,” they “are not authorized to substitute
those rules for the rules which govern [their] review on appeal.” Id. at 143–44. As a
result, Judge Bryant concluded that the Court of Appeals had prematurely addressed
the effect of § 146-76.1 upon the funds received pursuant to the agreement and should
have refused to consider that issue on ripeness grounds. Id. at 144.
¶ 20 The Attorney General and environmental intervenors noted appeals to this
Court from the Court of Appeals’ decision based upon Judge Bryant’s dissent. In
addition, the Attorney General, the environmental intervenors, and the Board of
Education filed separate petitions seeking discretionary review with respect to
additional issues. On 14 April 2021, this Court allowed the discretionary review
petitions filed by the Attorney General and the Board of Education while dismissing
the environmental intervenors’ discretionary review petition as moot.
II. Substantive Legal Analysis
A. Standard of Review
¶ 21 This Court reviews decisions of the Court of Appeals for errors of law. N.C. R.
App. P. 16(a); State v. Melton, 371 N.C. 750, 756 (2018). In determining whether a
complaint states a claim for which relief can be granted, we use a de novo standard
of review, taking as true the factual allegations contained in the complaint. See, e.g.,
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Krawiec v. Manly, 370 N.C. 602, 604 (2018) (taking as true the factual allegations
contained in a complaint in reviewing an order concerning a motion to dismiss for
failure to state a claim for which relief can be granted pursuant to N.C.G.S. § 1A-1,
Rule 12(b)(6)); see also Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400 (2003),
aff’d per curiam, 357 N.C. 567 (2003) (holding that appellate courts “must conduct a
de novo review of the pleadings to determine their legal sufficiency and to determine
whether the trial court’s ruling on the motion to dismiss was correct”).
B. The Board’s Complaint
¶ 22 An analysis of the extent to which the Board of Education’s amended complaint
states a claim for relief pursuant to N.C.G.S. § 147-76.1 must begin with an
examination of N.C.G.S. § 1A-1, Rule 8, which provides that a pleading must contain
(1) “[a] short and plain statement of the claim sufficiently particular to give the court
and the parties notice of the transactions, occurrences, or series of transactions or
occurrences, intended to be proved showing that the pleader is entitled to relief” and
(2) “[a] demand for judgment for the relief to which [the plaintiff] deems himself
entitled.” As we have previously stated, “when the allegations in the complaint give
sufficient notice of the wrong complained of[,] an incorrect choice of legal theory
should not result in dismissal of the claim if the allegations are sufficient to state a
claim under some legal theory.” Stanback v. Stanback, 297 N.C. 181, 202 (1970)
(emphasis added), overruled on other grounds by Dickens v. Puryear, 302 N.C. 437,
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448 (1981); see also Sutton v. Duke, 277 N.C. 94, 100 (1970). “[T]he policy behind
notice pleading is to resolve controversies on the merits, after an opportunity for
discovery, instead of resolving them based on the technicalities of pleadings.” Ellison
v. Ramos, 130 N.C. App. 389, 395 (1998). In evaluating whether a complaint
adequately states a claim for relief for purposes of N.C.G.S. § 1A-1, Rule 12(b)(6), we
take the allegations in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor. N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434,
439 (1974); see also Kaleel Builders, Inc v. Ashby, 161 N.C. App. 34, 37 (2003) (noting
that, in reviewing a trial court’s decision to dismiss a claim for failure to state a claim
for which relief can be granted pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), “we read
all allegations in the light most favorable to plaintiff”).
¶ 23 In seeking to persuade us that the amended complaint fails to state a claim for
relief pursuant to N.C.G.S. § 147-76.1, the Attorney General argues that, even though
the applicable standard of review is a liberal one, it “does not relieve plaintiffs of the
burden of making factual allegations that provide defendants with sufficient notice
of the specific claims that plaintiffs might assert.” In support of this assertion, the
Attorney General directs our attention to Sutton, in which we recognized that the
General Assembly intended “to require a more specific statement, or notice in more
detail” by enacting N.C.G.S. § 1A-1, Rule 8, compared to the requirements of Rule
8(a)(2) of the Federal Rules of Civil Procedure. Sutton, 277 N.C. at 100.
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¶ 24 According to the Attorney General, the amended complaint failed to provide
notice that the Board of Education was asserting a claim pursuant to N.C.G.S § 147-
76.1, which had been enacted three years after the filing of the amended complaint,
or any other claim relating to the location in which funds provided under the
agreement were being deposited other than the Civil Penalties and Forfeiture Fund.
On the contrary, the Attorney General argues that “the only ground that the Board
identifies that provides it with standing to sue the Attorney General relates to a claim
under the civil-penalty clause” of the state constitution. More specifically, the
Attorney General notes that the factual allegations set out in the amended complaint
revolve around the Board of Education’s contention that the payments that the
Smithfield companies had made pursuant to the agreement constituted civil penalties
and that the only relief that the Board of Education had requested was that the
payments that the Smithfield companies had made pursuant to the agreement should
be deposited in the Civil Penalties and Forfeiture Fund. In the Attorney General’s
view, the absence of any allegation that the funds provided by the Smithfield
companies under the agreement were being held outside the State treasury
necessitated a conclusion that the Attorney General had not been provided with
sufficient notice that the Board of Education was contending that the trial court
should have ordered the Attorney General to deposit any funds that had been received
pursuant to the agreement in the State treasury.
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¶ 25 The Attorney General asserts that the Court of Appeals’ reliance upon
N.C.G.S. § 1A-1, Rule 54(c), which directs trial courts to award a prevailing party the
relief to which it was entitled “even if the party has not demanded such relief in its
pleadings,” has no bearing upon the proper resolution of this case given that “it is
‘well-settled’ that relief granted under Rule 54 ‘must be consistent with the claims
pleaded.’ ” N.C. Nat’l Bank v. Carter, 71 N.C. App. 118, 121 (1984)). In the Attorney
General’s view, the Board of Education’s request for relief in the form of an order that
funds paid by the Smithfield companies pursuant to the agreement be deposited in
the State treasury was not consistent with its original claim that the monies that the
Smithfield companies had paid pursuant to the agreement violated article IX, section
7, of the North Carolina Constitution given that “a violation of the civil-penalty clause
cannot be remedied simply by placing the proceeds of civil penalties into the state
treasury.”
¶ 26 In seeking to convince us that the amended complaint did, in fact, sufficiently
allege a claim for relief predicated upon N.C.G.S. § 147-76.1, the Board of Education
contends that it had “allege[d] that the Attorney General [was] receiving and
disbursing State funds.” According to the Board of Education, a complaint should not
be dismissed simply because it fails to cite the statutory provision upon which the
claim that it asserts rests and that a complaint is sufficient in the event that it alleges
the relevant facts even though the claim being asserted is either mislabeled or not
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labeled at all, citing in support of that proposition Enoch v. Inman, 164 N.C. App.
415, 417–18 (2004). In the Board of Education’s view, as long as the complaint alleges
facts that give the opposing party sufficient notice to permit it to understand the
nature of the claim that is being asserted, that claim has been sufficiently stated.
¶ 27 According to the Board of Education, the “elements” of a claim pursuant to
N.C.G.S § 147-76.1 are “(1) receipt of State funds and (2) those funds not being
deposited into the State Treasury or those funds not being properly appropriated.”
In the Board of Education’s view, the allegation in the amended complaint that the
Smithfield companies “pa[id] North Carolina and deliver[ed] to the Attorney General
of North Carolina up to $2 million per year” that was “distribute[d] . . . to grant
recipients for Supplemental Environmental Programs” sufficed to put the Attorney
General on notice that he had improperly received and spent State money, thereby
effectively informing the Attorney General that a claim has been stated pursuant to
§ 147-76.1 despite the absence of any reference to the relevant statutory provisions
in the relevant pleading. Similarly, the Board of Education argues that the amended
complaint sufficiently requests that the funds that the Smithfield companies provided
under the agreement be deposited in the State treasury on the theory that a trial
court should provide “whatever relief is supported by the complaint’s factual
allegations and proof at trial.” Holloway, 339 N.C. at 346. As a result, the Board of
Education contends that, since the factual allegations set out in the amended
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complaint show that it is entitled to relief pursuant to § 147-76.1, the Court of Appeals
appropriately ordered the Attorney General to deposit funds received pursuant to the
agreement into the State treasury.
¶ 28 In an amicus curiae brief submitted in support of the Board of Education,
Professor Marcus Gadson of the Campbell Law School argues that “the policy behind
the notice theory of the present [pleading] rules is to resolve controversies on the
merits, following opportunity for discovery, rather than resolving them on
technicalities of pleading.” Smith v. City of Charlotte, 79 N.C. App. 517, 528 (1986).
According to Professor Gadson, the Board of Education’s allegation that “the Attorney
General ha[d] distributed [the funds provided the Smithfield companies] to grant
recipients” was, in the event that all reasonable inferences are made in the Board of
Education’s favor, sufficient to “suggest[] that the Attorney General has taken the
funds and then given them to grant recipients without the intermediate step of
putting the money in the [State] treasury first.” In addition, Professor Gadson claims
a complaint is “not insufficient because it does not provide facts to expressly
correspond to each element of a . . . claim” and that the proper test for determining
the sufficiency of a complaint is “whether it is clear from the complaint’s face that the
[plaintiff] can never satisfy each element.” Finally, Professor Gadson contends that
a complaint should survive a dismissal motion in the event that “no insurmountable
bar to recovery on the claim alleged appears on the face of the complaint and where
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the allegations contained therein are sufficient to give a defendant notice of the
nature and basis of plaintiffs’ claim so as to enable him to answer and prepare for
trial.” Forbis v. Honeycutt, 301 N.C. 699, 702 (1979). According to Professor Gadson,
the Board of Education’s complaint passes muster in light of these criteria.
¶ 29 We agree with the Attorney General that the Board of Education’s amended
complaint did not suffice to state a claim for relief pursuant to N.C.G.S. § 147-76.1.
The fundamental flaw in the arguments advanced by both the Board of Education
and Professor Gadson is their reliance upon decisions addressing the role of the trial
court in evaluating the sufficiency of pleadings. In Enoch, for example, the trial court
dismissed a complaint alleging racial discrimination by a local government employee
on the grounds that the plaintiff had based her claim on the Fourteenth Amendment
to the United States Constitution rather than 42 U.S.C. § 1983, which is the means
by which relief can be sought for federal constitutional violations by state and local
government officials. Enoch, 164 N.C. App. at 417. Similarly, the issue before the
Court in Holloway was whether the plaintiffs’ failure to explicitly request an award
of punitive damages in their prayer for relief precluded the recovery of such damages
even though the factual allegations set out in the complaint and evidence elicited at
trial supported an award of punitive damages. Holloway, 339 N.C. at 342. Finally,
in N.C. Consumer Power, upon which Professor Gadson relies for the “cardinal
principle that the Court should give the Board the benefit of all reasonable inferences
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when evaluating the complaint,” this Court was faced with whether the trial court
had erroneously denied the defendant’s dismissal motion in the face of an assertion
that the plaintiff had failed to allege the existence of a justiciable controversy. 285
N.C. at 439.
¶ 30 In this case, however, the trial court was never asked to consider whether the
Board of Education’s complaint sufficed to state a claim pursuant to N.C.G.S. § 147-
76.1 and could not have done so because the relevant statutory provision did not exist
at the time that the trial court decided to grant summary judgment in the Attorney
General’s favor. As a result, this case does not involve “mislabel[ing]” or a “fail[ing]
to label” a claim properly; instead, the Board of Education could not have asserted a
claim based upon § 147-76.1 before the trial court because the amended complaint
was filed years before the relevant statutory provision was enacted. In other words,
the Court of Appeals lacked the authority to address and decide a wholly new claim
that had been asserted for the first time on remand from this Court’s initial decision.
As Judge Bryant recognized in her dissenting opinion, “[t]he Rules of Civil Procedure
apply to our trial courts” and “[w]e are not authorized to substitute those rules [for
the rules that] govern our review on appeal[,]” i.e., the North Carolina Rules of
Appellate Procedure. Stein, 275 N.C. App. at 143–44.
¶ 31 Although the Board of Education argues that it did not mislabel the claims
that it asserted against the Attorney General “[b]ecause the law changed while [its]
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appeal was pending,” it cites no authority in support of the proposition that a plaintiff
may assert for the first time in the appellate division that a complaint alleges the
existence of a cause of action that did not exist at the time the plaintiff filed his or
her complaint in the trial division. Aside from the chaotic conditions that could result
in the appellate courts in the event that the procedures utilized by the Court of
Appeals in this case became commonplace, allowing such a result to occur would
effectively deprive the trial court of the ability to perform its primary role—either
through the judge or a jury—as the finder of fact, since the trial court would not have
had the opportunity to decide the issue of whether the record contains sufficient
factual support for the proposed claim for relief. See Carolina Power & Light Co. v.
City of Asheville, 358 N.C. 512, 517 (2004) (stating that, “[o]n appeal, this Court is
bound by the facts found by the trial court if supported by the evidence”) (emphasis
added); Nate v. Ethan Allen, 199 N.C. App. 511, 521 (2009) (noting that “[i]t is not the
role of the appellate courts to make findings of fact.”); see also Winston Affordable
Hous., LLC v. Roberts, 374 N.C. 395, 403–04 (2020) (remanding a case to the trial
court for additional factfinding after determining that the trial court had erroneously
concluded that the plaintiff had waived the right to assert certain breach of contract
claims).
¶ 32 In addition, the Court of Appeals’ decision cannot be sustained upon the basis
of the legal theory upon which the Board of Education has relied in attempting to
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persuade us to affirm that decision. As this Court has previously held, “[u]nder the
notice theory of pleading a statement of a claim is adequate if it gives sufficient notice
of the claim asserted to enable the adverse party to answer and prepare for trial . . .
and to show the type of case brought.” Sutton, 277 N.C. at 102 (emphasis added).
Although “the concept of notice pleading is liberal in nature, a complaint must
nonetheless state enough to give the substantive elements of a legally recognized
claim.” Estate v. Savino v. Charlotte-Mecklenburg Hospital Authority, 375 N.C. 288,
297 (2020) (emphasis added) (quoting Raritan River Steel Co. v. Cherry, Bekaert &
Holland, 322 N.C. 200, 205 (1988)). In spite of the fact that the amended complaint
sufficed to put the Attorney General on notice that the Board of Education contended
that he had violated article IX, section 7, of the North Carolina Constitution, we are
completely unable to see how the allegations set out in the amended complaint would
have permitted the Attorney General to “prepare for trial” with respect to a claim
that did not, at that time, exist or how the Board of Education could have pled or
proved the elements of a “legally recognized claim” based upon a statutory provision
that had not yet been enacted or even proposed.
¶ 33 In addition, after carefully analyzing the allegations set out in the amended
complaint and after assuming, without in any way deciding, that the Board of
Education has properly stated the elements of any claim for relief that might be
available to it pursuant to N.C.G.S. § 147-76.1, we conclude that the Board of
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Education would have been required to allege that the Attorney General had failed
to deposit the funds that the Smithfield companies have paid in accordance with the
agreement into the State treasury. The amended complaint is, however, completely
devoid of any such allegation. Instead, the amended complaint simply alleges that
the Attorney General had failed to deposit the relevant funds into the Civil Penalty
and Forfeiture Fund, which is an entirely different kettle of fish. In addition, any
contention that the allegation in the amended complaint that “the Attorney General
has distributed these sums to grant recipients for Supplemental Environment[al]
Programs” necessarily “suggests that the Attorney General has taken the funds and
then given them to grant recipients without the intermediate step of putting the
money in the treasury first” involves a logical leap that we are unable to take and
rests upon an after-the-fact attempt to imply the existence of a factual allegation that
would not have had any bearing upon the claim that the Board of Education actually
asserted in the amended complaint had it been made.
¶ 34 The Court of Appeals’ determination that the amended complaint suffices to
assert a claim for relief pursuant to N.C.G.S § 147-76.1 seems even more dubious
when one considers that the original cause of action that the Board of Education
asserted in the amended complaint was constitutional, rather than statutory, in
nature. In Enoch, the Court of Appeals determined that the factual allegations
underlying the plaintiff’s claim that a local employee had violated her federal
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constitutional rights in contravention of the Fourteenth Amendment sufficed to
support a claim for relief pursuant to 42 U.S.C. § 1983, a statute that provides the
exclusive remedy for the infringement of federal constitutional rights by a state or
local employee. Enoch, 164 N.C. App. at 418–19; Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 731 (1989). Simultaneously, however, the Court of Appeals rejected the
plaintiff’s contention that her complaint sufficed to state a claim for relief pursuant
to 42 U.S.C. § 1981, which confers upon “[a]ll persons within the jurisdiction of the
United States” the right to enter into and enforce contracts and to the “full and equal
benefit of all laws and proceedings for the security of persons and property . . . ,”
reasoning that “the wrong complained of” in the complaint was repeatedly
characterized as resting upon an alleged violation of the plaintiff’s federal
constitutional rights, with there being “no indication” that the plaintiff was
attempting to enforce a statutory right pursuant to 42 U.S.C. § 1981. Id. at 428–29
(quoting Stanback, 297 N.C. at 202). Similarly, the “wrong complained of” in the
amended complaint is an alleged violation of the Board of Education’s constitutional
rights as a beneficiary of the Civil Penalties and Forfeitures Fund, into which it
believed that the funds provided by the Smithfield companies under the agreement
had to be deposited, with there being “no indication” that the Board of Education
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sought to enforce any substantive right pursuant to § 147-76.1 (to the extent that it
had the ability to assert such a claim at all)6 or any other statutory provision.
¶ 35 Furthermore, we reject the Court of Appeals’ determination that it was entitled
to consider the applicability of N.C.G.S. § 147-76.1 on remand because “[t]he general
rule is that an appellate court must apply the law in effect at the time it renders its
decision.” Currie, 19 N.C. App. at 243. The language upon which the Court of
Appeals relied in making this statement is derived from the decision of the Supreme
Court of the United States in Thorpe v. Housing Authority of Durham, in which the
Supreme Court considered whether a regulation that had been promulgated by the
Department of Housing and Urban Development, which required that a tenant facing
eviction from a federally assisted housing project be provided with notice of the
reasons for the proposed eviction and an opportunity to respond to the allegations
upon which the proposed eviction rested, applied to eviction proceedings that had
been initiated before the regulation took effect. 393 U.S. 268, 269–70 (1969). In
addressing this issue, the Supreme Court quoted Chief Justice John Marshall for the
proposition that, “if subsequent to the judgment and before the decision of the
6 As we have already discussed, the Board of Education has failed to cite any authority
tending to suggest that it has any substantive rights under or the ability to assert a claim
pursuant to § 147-76.1. Although we do not reach the question of the Board of Education’s
standing to assert a claim against the Attorney General pursuant to § 147-76.1, the absence
of statutory language authorizing the Board of Education to assert such a claim casts further
doubt upon the validity of its argument that the allegations that it made in support of the
state constitutional claim asserted in the amended complaint sufficed to support a separate
state statutory claim.
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appellate court, a law intervenes and positively changes the rule which governs, the
law must be obeyed, or its obligation denied.” Id. at 282 (emphasis added) (quoting
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801)). The principle
stated in Thorpe upon which the Court of Appeals relied in Currie and in this case
has no application here.
¶ 36 The issue that the Board of Education attempted to raise in the amended
complaint was whether payments made by the Smithfield companies in accordance
with the agreement constituted civil penalties for purposes of article IX, section 7, of
the North Carolina Constitution, which is an issue that this Court definitively
resolved in its earlier decision in this case. As far as we have been able to ascertain,
nothing in N.C.G.S. § 147-76.1 “positively changes the rule which governs” the proper
resolution of the civil penalties issue. For that reason, nothing in Currie or the
decisions upon which it relies provides any support for a determination that the
enactment of a statute during the pendency of an appeal that does not have any direct
bearing upon the proper resolution of the issue that is before the appellate court on
appeal allows a party to assert a completely new claim for the first time in an
intermediate appellate court on remand from the decision of a state court of last
resort. As a result, the enactment of § 147-76.1 does not constitute a change in the
applicable legal principles governing the claim asserted in the amended complaint
that was addressed in the first round of appellate decisions in this case
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¶ 37 Our decision to reverse the Court of Appeals and order the reinstatement of
the trial court’s original summary judgment order does not, contrary to the
contentions that have been advanced by the Board of Education and Professor
Gadson, completely deprive the Board of Education of the ability to assert any claim
that might be available to it pursuant N.C.G.S. § 147-76.1. Instead, the Board of
Education remains free under our decision in this case to file a new complaint in the
Trial Division of the General Court of Justice asserting any claims that might
otherwise be available to it pursuant to § 147-76.1 or any other statutory provision.
See Stein, 275 N.C. App. at 144 (Bryant, J., dissenting) (noting that “the appropriate
venue for the Board’s claim under [§ 147-76.1] is the trial court.”). Instead, our
decision in this case reflects nothing more than a recognition that the Board of
Education is not free to raise a completely new claim for the first time on appeal from
a trial court order granting summary judgment in favor of the opposing party, a result
that reaffirms the long-standing principle that a party cannot “swap horses between
courts in order to get a better mount in the Supreme Court.” Weil v. Herring, 207
N.C. 6, 10 (1934). As a result, we hold that the Court of Appeals erred by considering
and granting the Board of Education’s request for relief pursuant to N.C.G.S. § 147-
76.1.
¶ 38 We are unable to conclude our consideration of this case without taking notice
of the unusual procedural posture in which it arrived at this Court. After “revers[ing]
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the decision of the Court of Appeals and remand[ing] this case to the Court of Appeals
for any additional proceedings not inconsistent with [that] opinion[,]” in our original
decision, Stein, 374 N.C. at 124, we stated in a footnote that,
[a]lthough 2019 N.C. Sess. Laws 250, § 5.7.(c) provided that
newly-enacted N.C.G.S. § 147-76.1 became effective on 1
July 2019, and would be applicable to all funds received on
or after that date, the parties agreed that the provisions of
newly-enacted N.C.G.S. § 147-76.1 would not have the
effect of mooting this appeal. As a result, we will refrain
from attempting to construe N.C.G.S. § 147-76.1 or to apply
its provisions to the facts of this case. We express no
opinion as to what effect, if any, N.C.G.S. § 147-76.1 has on
the agreement or on any past or future payments made
thereunder.
Id. at 260.7 On remand, the Court of Appeals determined that the language contained
in this footnote had “remanded to [the Court of Appeals] the task of determining
additional proceedings regarding [§ 147-76.1].” Stein, 275 N.C. App. at 139. In
reaching this conclusion, the Court of Appeals misapprehended the purpose for which
we included Footnote No. 8 in our original opinion. Instead of requesting the Court
of Appeals to consider any issues relating to § 147-76.1 on remand, Footnote No. 8
simply acknowledged the enactment of § 147-76.1 while expressing no opinion
concerning the manner in which that newly enactment statutory provision should be
construed or applied with respect to funds received from the Smithfield companies
pursuant to the agreement. Although this Court does, on occasion, remand cases to
7 See Footnote 4 above.
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the lower courts for the consideration of additional issues, see, e.g., Farm Bureau v.
Cully’s Motorcross Park, 366 N.C. 505, 514 (2013) (noting that, “[w]hen this Court
implements a new analysis to be used in future cases, we may remand the case to the
lower courts to apply that analysis”), we did not take any such step in this case and
clarify that, in the event that we remand a case to the Court of Appeals or a trial
court “for further proceedings not inconsistent with [its] opinion,” such language
should not be interpreted as an invitation to consider new claims that are unrelated
to any contention that had been advanced before this Court, the Court of Appeals, or
the trial court to that point in the litigation.
III. Conclusion
¶ 39 Thus, for the reasons set forth above, we hold that the Court of Appeals erred
by concluding that the Board of Education’s amended complaint sufficed to support a
claim for relief pursuant to N.C.G.S. § 147-76.1 and remanding this case to Superior
Court, Wake County, for the entry of an order requiring compliance with the Court
of Appeals’ interpretation of that newly enacted statutory provision. In light of this
determination, we need not address the other arguments that have been advanced
for our consideration by the parties. As a result, we reverse the decision of the Court
of Appeals and remand this case to the Court of Appeals for further remand to
Superior Court, Wake County, with instructions to reinstate the trial court’s order
granting summary judgment in favor of the Attorney General.
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REVERSED AND REMANDED.
Justice BERGER did not participate in the consideration or decision of this
case.