Rollings v. Shelton ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-791
No. COA22-523
Filed 6 December 2022
Carteret County, No. 21 CVD 1040
SHERIKA ROLLINGS, Plaintiff,
v.
RYAN SHELTON, Defendant.
Appeal by plaintiff from order entered 14 December 2021 by Judge Andrew
Kent Wigmore in District Court, Carteret County. Heard in the Court of Appeals 1
November 2022.
Legal Aid of North Carolina, Inc., by Cynthia Sanders, Sandy L. Lee, TeAndra
H. Miller, James Battle Morgan, Jr., and Celia Pistolis, for plaintiff-appellant.
No brief filed for defendant-appellee.
STROUD, Chief Judge.
¶1 Plaintiff Sherika Rollings appeals from an order granting Defendant Ryan
Shelton’s motion to dismiss Plaintiff’s “Complaint and Motion for Domestic Violence
Protective Order” under Rule of Civil Procedure 12(b)(6). (Capitalization altered.)
Because Plaintiff adequately pled all the required elements for a complaint seeking
a Domestic Violence Protective Order (“DVPO”), the trial court erred by dismissing
her complaint based upon failure to state a claim. We therefore reverse the trial
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2022-NCCOA-791
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court’s dismissal and remand for further proceedings.
I. Background
¶2 On 13 October 2021, Plaintiff filed a “Complaint and Motion for Domestic
Violence Protective Order” against Defendant using form AOC-CV-303.
(Capitalization altered.) Plaintiff alleged on 8 October 2021 Defendant “choked [her]
after an argument.” Plaintiff further alleged Defendant was a “threat” to her because
it was not the first time he hit her. Plaintiff then alleged on 12 October 2021
Defendant had keyed her car by carving “[B—]” into it so “[a]t this point” she was
“starting to get scared of what he might do to” her. Finally, Plaintiff alleged
Defendant had a gun and a concealed carry permit and, while drunk, had “threatened
[her] with his gun saying he will kill himself if [she] left him.” Because Defendant
had a gun, Plaintiff alleged she “need[ed] to be careful” and was “afraid for [her] life.”
As a result, Plaintiff stated she “would like a protective order against [Defendant] so
he can stay away from me.” Plaintiff also checked boxes on the form indicating: she
believed “there is danger of serious and immediate injury” to her; Defendant had
firearms; Defendant had threatened her with a deadly weapon (the gun); and
Defendant had threatened to commit suicide.
¶3 Based on those allegations, Plaintiff requested the trial court initially enter an
ex parte order. Plaintiff also requested an order barring Defendant from her
residence, place of employment, and school, and from her “child(ren)[‘s]” day care and
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school. Finally, Plaintiff asked the order include a no contact provision and a
provision requiring Defendant to “attend an abuser treatment program.”
¶4 On the same day Plaintiff filed her Complaint, the trial court granted an “ex
parte Domestic Violence Order of Protection” based on a finding Defendant had
“intentionally caused bodily injury” to Plaintiff on 8 October 2021 as indicated in
Plaintiff’s Complaint.1 The ex parte DVPO was effective until 19 October 2021 and a
hearing was set for that day. But on 19 October, upon Defendant’s request, the trial
court entered an “Order Continuing Domestic Violence Hearing and Ex Parte Order”
to allow Defendant time to hire an attorney. (Capitalization altered.) On 2 November
2021, the trial court entered another order continuing the hearing and ex parte DVPO
for the same reason.
¶5 On 14 December 2021, the trial court held a hearing on Plaintiff’s Complaint
and Motion for a DVPO. At the start of the hearing, Defendant’s counsel moved to
dismiss under Rule of Civil Procedure 12(b)(6) because Plaintiff did not contact police
after the alleged choking incident, waited five days after the alleged choking incident
to file the Complaint, and Plaintiff made “no allegation of any personal knowledge . .
. that she knows” about the car keying incident. Plaintiff’s attorney responded
1 It is not entirely clear which judge issued the ex parte DVPO because only a
signature, which was illegible, was required and the name was not printed or typed. But the
signature on the ex parte DVPO appears to be different from Judge Wigmore’s, so it appears
a different trial judge granted the ex parte DVPO.
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Plaintiff had alleged “on October 8 the Defendant physically assaulted her. Which is
defined by the 50B Statute as an act of domestic violence. Which she’s here to testify
to.” Plaintiff’s attorney also argued the domestic violence statutes do not have “a
requirement . . . as to when” complaints are filed and Plaintiff’s testimony would
“address” the “five-day lag.”
¶6 After hearing those arguments, the trial court made an oral ruling dismissing
Plaintiff’s Complaint:
The problem I got is in her own writing. I mean, it happens
on the eighth, and there’s a delay. And people have delays
for many reasons. Ability to get to the courthouse. Seeking
legal counsel. Trying to decide what they want to do, if they
should go forward or not. But, then, her own words at the
bottom of page 2, her car gets keyed. There’s nothing to
show evidence that in this document that there’s a police
report. That there’s anything that she knows this
individual keyed the car. But the most important part of
the whole document is, “at this point, I am starting to get
scared of him.” So that says on October 8, she wasn’t scared
of him. So that goes back to explain why nothing was done
on the eighth. And that’s basically the essential paragraph
to go forward is the allegation of domestic violence that in
it, you know, is fear of it happening again. So, based on the
Motion, the 12(b)(6) Motion on the four corners of the
complaint, I’m going to dismiss this action.
¶7 Following that ruling, Plaintiff’s attorney again argued Plaintiff’s testimony
would explain the delay. The trial court responded because it was a motion on the
pleading, “the pleading itself has to prove the domestic violence.” Plaintiff’s attorney
countered the domestic violence statute requires only showing “the Defendant
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attempted or physically caused bodily injury” and “[f]ear is not an element.” The trial
court ended the hearing at that time by saying it had already dismissed the
Complaint.
¶8 On the same day as the hearing, 14 December 2021, the trial court entered a
written order dismissing Plaintiff’s Complaint based on Rule 12(b)(6) and voiding the
ex parte order as a result. Plaintiff filed written notice of appeal on or about 12
January 2022.
II. Analysis
¶9 Plaintiff argues on appeal “the Complaint alleges the necessary elements
sufficient for a claim under Chapter 50B.” (Capitalization altered.) Specifically,
Plaintiff contends “the allegations in the complaint that Defendant choked [her] are
sufficient to state a claim upon which relief may be granted under N.C. Gen. Stat. §
50B-1(a)(1)” and the allegations “Defendant had threatened [her] and she was afraid
state a claim upon which relief may be granted under N.C. Gen. Stat. § 50B-1(a)(2).”
(Capitalization altered.)
¶ 10 Plaintiff also argues “under notice pleading, the complaint provided Defendant
sufficient notice of the nature and basis for [her] claim for a” DVPO. (Capitalization
altered.) Specifically, Plaintiff asserts Rule of Civil Procedure 8 “does not require
detailed fact-pleading in Chapter 50B complaints so long as the pleading provides
sufficient notice of the nature and basis of the claim” and she has met that
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requirement. This argument mirrors Plaintiff’s contention her Complaint states a
claim because Rule 12(b)(6) serves to test whether a pleading has met the
requirements of Rule 8. See Westover Products, Inc. v. Gateway Roofing Co., Inc., 94
N.C. App. 63, 70, 380 S.E.2d 369, 374 (1989) (setting out requirements of Rule 8 and
then stating “[t]he first avenue by which a party may properly address the failure to
state a claim is through Rule 12(b)(6)”); see also Quackenbush v. Groat, 271 N.C. App.
249, 256, 844 S.E.2d 26, 31 (2020) (addressing together arguments on the
“sufficiency” of a claim “for purposes of Rule 12(b)(6) and notice pleading” under Rule
8). Thus, the question before us is only whether Plaintiff stated a claim sufficient to
survive a Rule 12(b)(6) motion to dismiss because that covers her Rule 8 argument as
well.
¶ 11 When reviewing a Rule 12(b)(6) motion, the issue is
whether, as a matter of law, the allegations of the
complaint, treated as true, are sufficient to state a claim
upon which relief may be granted under some legal theory.
A complaint may be dismissed pursuant to Rule 12(b)(6) if
no law exists to support the claim made, if sufficient facts
to make out a good claim are absent, or if facts are disclosed
which will necessarily defeat the claim.
Quackenbush, 271 N.C. App. at 251, 844 S.E.2d at 28 (citation and quotation marks
omitted). This Court reviews a Rule 12(b)(6) dismissal of a claim de novo. Holton v.
Holton, 258 N.C. App. 408, 416, 813 S.E.2d 649, 655 (2018). When conducting this
review, we must remember “[o]ur ‘system of notice pleading affords a sufficiently
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liberal construction of complaints so that few fail to survive a motion to dismiss.” Id.(quoting Wray v. City of Greensboro, 370 N.C. 41, 46, 802 S.E.2d 894, 898 (2017)).
¶ 12 In the context of seeking a DVPO specifically, the statutory requirements for
a complaint are as follows:
Any person residing in this State may seek relief under this
Chapter by filing a civil action or by filing a motion in any
existing action filed under Chapter 50 of the General
Statutes alleging acts of domestic violence against himself
or herself or a minor child who resides with or is in the
custody of such person.
N.C. Gen. Stat. § 50B-2(a) (2021) (emphasis added). Allegations of domestic violence
include
the commission of one or more of the following acts upon
an aggrieved party or upon a minor child residing with or
in the custody of the aggrieved party by a person with
whom the aggrieved party has or has had a personal
relationship, but does not include acts of self-defense:
(1) Attempting to cause bodily injury, or
intentionally causing bodily injury; or
(2) Placing the aggrieved party or a member of the
aggrieved party’s family or household in fear of
imminent serious bodily injury or continued
harassment, as defined in G.S. 14-277.3A, that rises
to such a level as to inflict substantial emotional
distress; or
(3) Committing any act defined in G.S. 14-27.21
through G.S. 14-27.33.
N.C. Gen. Stat. § 50B-1(a) (2021).
¶ 13 Thus, to survive a motion to dismiss under Rule 12(b)(6), a complaint seeking
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a DVPO must allege (1) the plaintiff resides in North Carolina, (2) the plaintiff and
the defendant have or have had a “personal relationship,” and (3) the defendant has
committed an act of domestic violence as defined in § 50B-1(a)(1)–(3). N.C. Gen. Stat.
§§ 50B-1(a), -2(a) (2021). The first two requirements are not in dispute. Plaintiff
clearly pled them in the first two paragraphs of the Complaint when she listed her
county of residence in North Carolina and checked the box indicating she and
Defendant “are persons of the opposite sex who are in or have been in a dating
relationship.” The only question before us is whether the Complaint adequately pled
Defendant committed an act of domestic violence.
¶ 14 Here, the Complaint adequately pled such an act of domestic violence.
Accepting the Complaint’s allegations as true, the 8 October incident where
Defendant “choked” Plaintiff “after an argument” aligns with the plain language of §
50B-1(a)(1) because it involved either “attempting to cause bodily injury, or
intentionally causing bodily injury.” N.C. Gen. Stat. § 50B-1(a)(1). This alleged
incident also resembles the only binding precedent applying § 50B-1(a)(1). In In re
A.L.T., this Court employed the definition of domestic violence from § 50B-1(a) when
reviewing an argument the trial court had mischaracterized a father’s actions as
domestic violence in a child protection case. See In re A.L.T., 241 N.C. App. 443, 448–
50, 774 S.E.2d 316, 319–20 (2015) (applying definition under heading on
“Adjudication of Neglect”). Specifically, the In re A.L.T. Court found the father’s
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actions were “properly characterized” as domestic violence under § 50B-1(a)(1) when
he “struck” one child and “hit” another “in the mouth, causing her to suffer a busted
lip.” Id. at 450, 774 S.E.2d at 320. Here, the alleged choking incident resembles the
strikes in A.L.T. in scope and force. See id.¶ 15 As Plaintiff argues on appeal, her Complaint included other allegations such
as Defendant threatening Plaintiff with a gun in the past and carving an insulting
epithet on her car causing Plaintiff to fear for her life. Those allegations, which we
must take as true for purposes of review of the ruling on a motion to dismiss, do tend
to support Plaintiff’s request for a protective order and may be relevant to a trial
court’s ultimate determination as to the terms of the DVPO, but we do not need to
address them to review the trial court’s decision to grant Defendant’s motion to
dismiss. Plaintiff only needed to allege one act of domestic violence, and the choking
incident alone meets the pleading requirement as already discussed. See N.C. Gen.
Stat. §§ 50B-1(a) (“Domestic violence means the commission of one or more of the
following acts . . . .” (emphasis added)).
¶ 16 The trial court’s stated reasoning for granting the motion to dismiss also
indicates the trial court failed to apply the appropriate analysis for a motion to
dismiss under Rule 12(b)(6). Instead of taking the allegations of the Complaint as
true, as required for purposes of a motion to dismiss, see Quackenbush, 271 N.C. App.
at 251, 844 S.E.2d at 28, the trial court’s comments tend to indicate that it both
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imposed a legal requirement not found in Chapter 50—a specific timing requirement
for the Plaintiff’s fear—and made a credibility assessment of the allegations without
hearing any testimony from Plaintiff. The trial court primarily focused on Plaintiff’s
“delay” in filing the Complaint after the October 8 choking incident. Specifically, the
trial court believed Plaintiff delayed filing the pleading because she was not scared
of Defendant on October 8 since she wrote, immediately after detailing the October
12 car keying incident, “At this point I am starting to get scared of what [Defendant]
might do to me.” (Emphasis added.) The trial court then indicated the lack of fear
after the October 8 incident was an issue because “basically the essential paragraph
to go forward is the allegation of domestic violence that in it, you know, is fear of it
happening again.”
¶ 17 The trial court erred in its reasoning about the delay in filing in several ways.
First, fear is not an element Plaintiff was required to plead. Plaintiff only had to
plead: she resided in the State; she had a personal relationship with Defendant; and
Defendant had committed an act of domestic violence. N.C. Gen. Stat. §§ 50B-1(a), -
2(a). While fear is part of the definition of some of the possible acts of domestic
violence, see N.C. Gen. Stat. § 50B-1(a)(2) (“Placing the aggrieved party . . . in fear of
imminent serious bodily injury or continued harassment . . . .”), it is not part of the
definition in § 50B-1(a)(1). See N.C. Gen. Stat. § 50B-1(a)(1) (“Attempting to cause
bodily injury, or intentionally causing bodily injury.”). And as we have already
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discussed, the alleged choking incident falls under § 50B-1(a)(1). Second, even if an
allegation of fear were required, Plaintiff wrote she was “afraid for [her] life” and was
“starting to get scared of what he might do to” her. Plaintiff also checked the box on
the form indicating she “believe[d] there [was] danger of serious and immediate injury
to me or my child(ren).”
¶ 18 Further, the trial court’s focus on the timing of her fear was misguided because
it is undisputed Plaintiff pled she was afraid at the time of her Complaint, which is
the document reviewed by a Rule 12(b)(6) motion. Finally as to any delay, we take
judicial notice of the calendar for the month of October 2021. See Simpson v.
Simpson, 209 N.C. App. 320, 325–26, 703 S.E.2d 890, 894 (2011) (permitting judicial
notice of “the days, weeks, and months of the calendar” (citations and quotation
marks omitted)). While the trial court expressed concern about a delay, we note 8
October 2021 was a Friday and Plaintiff filed her Complaint the following Wednesday
morning, 13 October 2021. The weekend in between the choking incident and filing
of the Complaint might explain part of the delay. It is possible an extended
unexplained delay—which would still not include the five day delay here—between
an alleged act and filing of a complaint may present an issue if the only allegation of
domestic violence is under North Carolina General Statute § 50B-1(a)(2), “Placing the
aggrieved party or a member of the aggrieved party’s family or household in fear of
imminent serious bodily injury or continued harassment.” N.C. Gen. Stat. § 50B-
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1(a)(2) (emphasis added). Here Plaintiff alleged a specific incident of choking only
five days prior to filing the Complaint, in addition to other allegations—which we
must consider as true for purposes of a motion to dismiss, see Quackenbush, 271 N.C.
App. at 251, 844 S.E.2d at 28, which would tend to indicate an escalation of the threat
since the choking occurred. But here, five days, including a weekend, can barely be
characterized as a delay.
¶ 19 Beyond its focus on delay, the trial court noted there was “nothing to show
evidence that in this document that there’s a police report. That there’s anything
that she knows this individual keyed the car.” Chapter 50B does not require a
plaintiff to report incidents to police prior to filing a complaint, nor does it require
Plaintiff to state in the complaint all the facts and circumstances which led her to
believe that Defendant was the person who keyed her car. In addition to the
sufficiency of the allegation of the choking incident alone, even without reference to
the car keying incident, the trial court did not correctly account for the procedural
posture of the case. Since the trial court was addressing a Rule 12(b)(6) motion to
dismiss, the court was required to treat all the allegations in the Complaint as true.
See Quackenbush, 271 N.C. App. at 251, 844 S.E.2d at 28 (stating the allegations in
a complaint are “treated as true” when reviewing a Rule 12(b)(6) motion). Since the
Complaint alleged Defendant carved a derogatory epithet into Plaintiff’s car, the trial
court had to accept that allegation as true when reviewing the motion to dismiss. The
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trial court’s comments reveal it did not do that. Instead, the trial court proceeded to
make an evaluation of Plaintiff’s credibility and the weight of her evidence, based on
the bare allegations of the Complaint. If the trial court had held a hearing and heard
all the evidence, it then would have the duty to consider the credibility and weight of
the evidence and could make finding of fact accordingly, see, e.g., Stancill v. Stancill,
241 N.C. App. 529, 543, 773 S.E.2d 890, 899 (2015) (“[d]eferring to the trial court on
the issue of credibility” based on the plaintiff’s testimony she feared for her life and
finding competent evidence to support its determination the plaintiff suffered
substantial emotional distress because of the defendant’s actions), but for purposes
of a motion to dismiss, the allegations must be taken as true. See Quackenbush, 271
N.C. App. at 251, 844 S.E.2d at 28.
III. Conclusion
¶ 20 After our de novo review, the trial court erred in granting Defendant’s motion
to dismiss under Rule 12(b)(6). Plaintiff pled all the required elements in her
Complaint, including an act of domestic violence under North Carolina General
Statute § 50B-1(a)(1) because she pled Defendant choked her. Therefore, we reverse
the trial court’s order dismissing Plaintiff’s Complaint and remand for further
proceedings.
REVERSED AND REMANDED.
Judges HAMPSON and JACKSON concur.