Miller v. Henderson , 71 N.C. App. 366 ( 1984 )

322 S.E.2d 594 (1984)

Georgia MILLER
v.
James E. HENDERSON, Individually and as Principal of Chocowinity High School; Clifton E. Toler, Jr., Individually and as Superintendent of Beaufort County Schools; William E. Jefferson, Individually and as Chairman of the Beaufort County Board of Education; James R. Raper, Hassell Respass, Charles R. Smith, Jr., and Gary Jordan, Individually and as members of the Beaufort County Board of Education.

No. 842SC168.

Court of Appeals of North Carolina.

November 20, 1984.

Willis A. Talton, Greenville, for plaintiff-appellant.

Tharrington, Smith & Hargrove by Richard A. Schwartz and Ann L. Majestic, Raleigh, for defendants-appellees.

HILL, Judge.

Although not raised by defendant appellees, the first issue we must address is whether plaintiff's appeal is premature. Since the orders appealed from adjudicated the rights and liabilities of fewer than all the parties and did not contain a certification by the trial court pursuant to G.S. 1A-1, Rule 54(b), that there was "no just reason for delay," plaintiff's appeal is premature unless the orders affected a substantial right and will work an injury to the appellant if not corrected before an appeal from the final judgment. G.S. 1-277, 7A-27(d); Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). In determining what constitutes a substantial right, "[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

We first consider the 18 September 1983 order dismissing plaintiff's claims against the defendant appellees. Plaintiff alleged that defendant James Henderson defamed her and maliciously interfered with her contractual rights, and that Henderson's actions were accepted and approved, or adopted, by the defendant appellees. If plaintiff is not allowed to appeal immediately from the order dismissing her claims against the defendant appellees, she may face a second trial based on the same issues and the possibility of inconsistent verdicts in the two trials. For this reason, we hold the 18 September 1983 order affected the substantial right of plaintiff to have all her claims in this action heard by the same judge and jury, and this will work an injury to the plaintiff if it is not corrected before an appeal from the final judgment. It is therefore immediately appealable. See Bernick, supra; Swindell v. Overton, 62 N.C.App. 160, 302 S.E.2d 841 (1983), modified, 310 N.C. 707, 314 S.E.2d 512 (1984).

We further hold the 11 October 1983 order granting defendant appellees' request for attorneys' fees, when considered with the 18 September 1983 order, is immediately appealable. Our courts have held that the entry of a partial summary judgment for a monetary sum against a party affected the substantial right of that party and therefore was immediately appealable. Investments v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (1977); Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, appeal dismissed, 301 N.C. 92 (1980). We believe the two orders appealed from in the present case are substantially equivalent to a partial judgment against plaintiff for a monetary sum, and as such, affect a substantial right of the plaintiff.

We turn now to the merits of plaintiff's appeal. Plaintiff contends the trial court erred in granting defendant appellees' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The only purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleading against which it is directed. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976).

Plaintiff's allegations may be summarized as follows in relevant part: Plaintiff had been employed by the defendant appellees at Chocowinity High School since 1977, and was the bookkeeper in the office of the principal at that school in February, 1981, when the defendant Henderson became the principal. Plaintiff remained employed as the school's bookkeeper until 6 April 1982 when defendant Henderson unlawfully and unjustifiably terminated her employment. Henderson informed plaintiff that her employment was terminated because of unsatisfactory work relationships. Plaintiff alleged that while Henderson was principal he misapplied or mishandled school funds on several occasions and tried to force plaintiff to cooperate with him in accounting for the funds. When Henderson determined that he could not force plaintiff to cooperate with him, he fired her.

Plaintiff requested and received a hearing before the Chocowinity Local School Advisory Committee on 6 April 1982 at which time she requested reasons for her termination but was not given any. Plaintiff has never been informed of the decision reached by the advisory committee regarding her termination. Plaintiff then requested and received a hearing before the Beaufort County Board of Education. At the hearing, plaintiff presented her position and requested reasons for her termination, contending that Henderson had no authority to dismiss her. Henderson was present at the hearing and was offered an opportunity to rebut plaintiff's evidence but refused to say anything. The Board of Education stated that it would take the matter under consideration and that plaintiff would be advised of their decision. Thereafter, plaintiff heard nothing further from the Board of Education until 10 March 1983 when plaintiff's attorney called the Board's attorney who later advised plaintiff's attorney that the Board had declined to grant plaintiff's request that she be reinstated.

Plaintiff alleged that Henderson's actions constituted a malicious interference with her contractual rights, that his actions were adopted by defendant appellees, and that the termination of her employment by the defendants without affording her due process was a wilful and wanton violation of her constitutional rights. She further alleged that Henderson defamed her and that some of his defamatory statements were accepted and approved by the defendant appellees, as office holders and as individuals.

After carefully examining the complaint, we conclude that even when plaintiff's allegations are taken as true they are not sufficient to state a claim against any of the defendant appellees upon which relief can be granted. To begin with, the complaint is not sufficient to impute liability to the defendant appellees for defamation. Plaintiff's allegations of defamation relate solely to the conduct of Henderson. Plaintiff failed to allege any affirmative action or personal involvement on the part of defendant appellees in the alleged defamatory publication; therefore, they may not be held individually accountable for the actions taken by Henderson alone. See Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979).

Furthermore, plaintiff failed to set forth any allegations which support her remaining claims against defendant appellees for malicious interference with her contractual rights and violation of her due process rights. Plaintiff's claim against Clifton Toler, Jr., individually and as Superintendent of Beaufort County Schools, is fatally flawed because there is no allegation in the complaint that Toler took any part in the termination of plaintiff's employment or that he even had authority to take any action with respect to her employment. Plaintiff's claims against the remaining defendant appellees, as individuals and as members of the Beaufort County Board of Education, fail because the actions and omissions which form the basis for her claims against them were those of the Board of Education as a corporate entity and not those of the individual members of the Board. The Beaufort County Board of Education is a corporate body which has a legal existence separate and apart from its members. See G.S. 115C-40; Edwards v. Board of Education, 235 N.C. 345, 70 S.E.2d 170 (1952); McLaughlin v. Beasley, 250 N.C. 221, 108 S.E.2d 226 (1959). As such, it has the power and obligation to prosecute and defend suits for and against the corporation and is vested with the authority to control and supervise all matters pertaining to the public schools in the Beaufort County School administrative unit. See G.S. 115C-40. Plaintiff's claims, if brought against anyone other than Henderson, should have been brought against the Beaufort County Board of Education as a corporate entity and not against the individual board members. Since plaintiff did not set forth any allegations of wrongful action taken by the defendant appellees as individual board members or as individuals, she did not state a claim against them upon which relief can be granted. We hold the trial court correctly granted defendant appellees' motion to dismiss.

Plaintiff next assigns as error the court's denial of her motion for summary judgment. Plaintiff did not present any argument or authority in support of this contention in her brief; therefore, it is deemed abandoned. Rule 28(a), North Carolina Rules of Appellate Procedure.

In her next assignment of error, plaintiff contends the court erred in granting defendant appellees' motion for attorneys' fees pursuant to 42 U.S.C. § 1988. In its order of 11 October 1983, the court found that plaintiff's complaint alleged the defendant appellees acted under color of state law so as to violate plaintiff's constitutional and other rights, and on that basis the court properly concluded the complaint alleged a claim pursuant to 42 U.S.C. § 1983. 42 U.S.C. § 1988 provides that in an action to enforce certain provisions of federal law, including 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fees as part of the costs." The test for determining whether a party is a prevailing party within the meaning of § 1988 is whether the party has been successful on a significant issue in the case. Lotz Realty Co., Inc. v. United States Department of Housing and Urban Development, 717 F.2d 929 (4th Cir.1983); Bonnes v. Long, 599 F.2d 1316, 1318 (4th Cir.1979), cert. denied, 455 U.S. 961, 71 L. Ed. 2d 681, 102 S. Ct. 1476 (1982).

It is clear prevailing defendants as well as plaintiffs are entitled to an award of fees under § 1988. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978); Lotz, supra. In order to be entitled to attorney's fees, however, a defendant must show that the action brought against him was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg, supra at 422, 54 L. Ed. 2d at 657, 98 S.Ct. at 701. The defendant does not have to show the action was brought in subjective bad faith. Christiansburg, supra at 421, 54 L.Ed.2d at 657, 98 S. Ct. at 701.

The court in the present case concluded that the defendant appellees were the prevailing parties with respect to the claim brought against them, that plaintiff's claim against each of them was meritless, and on that basis granted their request for attorneys' fees. We feel it is clear the defendant appellees were prevailing parties with respect to the claims asserted against them, and agree that plaintiff's claims were meritless or groundless as is demonstrated by the fact they were dismissed pursuant to Rule 12(b)(6). For this reason, we conclude the court did not abuse its discretion in awarding attorneys' fees to the defendant appellees. The orders of the trial court are

Affirmed.

HEDRICK and WEBB, JJ., concur.