McCullers v. Lewis , 265 N.C. App. 216 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-825
Filed: 7 May 2019
Wake County, No. 17 CVS 14445
BRITTNEY MCCULLERS; and RACHEL GOODLING, as Guardian ad Litem for the
minor child BRI’NAJASHA MCCULLERS, Plaintiffs,
v.
TAYLORIA LEWIS, in her individual capacity, and MICHAEL AYODELE, in his
individual capacity, Defendants.
Appeal by Defendants from order entered 10 May 2018 by Judge Henry W.
Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 12 March
2019.
Legal Aid of North Carolina, Inc., by Thomas Holderness, Hannah Guerrier,
and Janet McIlwain, for Plaintiffs-Appellees.
The Francis Law Firm, PLLC, by Charles T. Francis and Ruth A. Sheehan, for
Defendants-Appellants.
COLLINS, Judge.
Defendants Tayloria Lewis and Michael Ayodele appeal from an order denying
their motions to dismiss Plaintiffs’ complaint under North Carolina Rule of Civil
Procedure 12 and on estoppel grounds. Defendants contend that the trial court erred
by failing to conclude that (1) Defendants were shielded from suit by the doctrines of
sovereign immunity and governmental immunity and (2) this lawsuit is an improper
collateral attack on the decision of another trial court judge not to allow Defendants
MCCULLERS V. LEWIS
Opinion of the Court
to be joined in a separate proceeding. We dismiss in part, affirm in part, and reverse
in part.
I. Background
On 29 November 2017, Plaintiffs filed their complaint in Wake County
Superior Court against Defendants, who both work for the Raleigh Housing Authority
(“RHA”). In their complaint, Plaintiffs seek damages in connection with Defendants’
alleged failure to transfer Plaintiffs to another apartment following various issues
Plaintiffs allege to have experienced at their RHA-administered apartment, and
bring causes of action for (1) intentional infliction of emotional distress, (2) negligent
infliction of emotional distress, and (3) negligence, as well as a claim for (4) punitive
damages.
On 19 February 2018, Defendants filed motions to dismiss the complaint under
N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), 12(b)(2), and 12(b)(6) (2017), and on estoppel
grounds, as well as an answer to the complaint. Defendants’ motions were heard on
26 April 2018, and on 10 May 2018 the trial court denied Defendants’ motions in full.
Defendants timely appealed to this Court on 8 June 2018.
II. Appellate Jurisdiction
We first address whether this Court has jurisdiction to hear Defendants’
appeal from the trial court’s denials of their motions to dismiss.
-2-
MCCULLERS V. LEWIS
Opinion of the Court
The trial court’s denials of Defendants’ motions to dismiss are interlocutory
orders from which there is generally no right of immediate appeal. Goldston v. Am.
Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, the North
Carolina General Statutes set forth certain circumstances in which litigants like
Defendants who are subject to an interlocutory order may immediately appeal,
including when an interlocutory order “[a]ffects a substantial right,” N.C. Gen. Stat.
§§ 1-277(a) (2017), 7A-27(b)(3)(a) (2017), or makes an adverse ruling as to personal
jurisdiction, N.C. Gen. Stat. § 1-277(b) (2017). North Carolina Rule of Appellate
Procedure 28(b) sets forth the required contents for an appellant’s brief, including the
requirement of stating the grounds for appellate review, and specifically sets forth
that “[w]hen an appeal is interlocutory, the statement [of grounds for appellate
review] must contain sufficient facts and argument to support appellate review on
the ground that the challenged order affects a substantial right.” N.C. R. App. P.
28(b)(4) (2018).
Defendants made motions to dismiss the complaint under Rules 12(b)(1) (lack
of subject matter jurisdiction), 12(b)(2) (lack of personal jurisdiction), and 12(b)(6)
(failure to state a claim upon which relief can be granted), as well as on estoppel
grounds, all of which were denied by the trial court in its interlocutory order. But as
a threshold matter, the statement of the grounds for appellate review in Defendants’
brief only argues that the trial court’s denial of its Rule 12(b)(2) motion affects a
-3-
MCCULLERS V. LEWIS
Opinion of the Court
substantial right. Defendants thus fail to satisfy their burden under Appellate Rule
28(b) as to all but their Rule 12(b)(2) argument, which renders Defendants’ appeal of
the denial of their Rule 12(b)(1), Rule 12(b)(6), and estoppel motions all subject to
dismissal. See Bezzek v. Bezzek, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2019 N.C.
App. LEXIS 121, *3 (2019) (“When an appeal is interlocutory and not certified for
appellate review pursuant to Rule 54(b), the appellant must include in the statement
of grounds for appellate review sufficient facts and argument to support appellate
review on the ground that the challenged order affects a substantial right. Otherwise,
the appeal is subject to dismissal.”).
Even had Defendants’ brief complied with Appellate Rule 28(b), their appeal
of the denial of their Rule 12(b)(1), 12(b)(6), and estoppel motions would still be
dismissed. Regarding the estoppel motion, the denial of a motion to dismiss affects a
substantial right when the motion to dismiss “makes a colorable assertion that the
claim is barred under the doctrine of collateral estoppel.” Fox v. Johnson, 243 N.C.
App. 274, 281, 777 S.E.2d 314, 321 (2015). Here, Defendants nowhere asserted that
the prior action upon which they base their estoppel motion has reached final
judgment on the merits, and as such, Defendants failed to make the colorable
assertion necessary to claim that the denial of their estoppel motion affects a
substantial right. See Bishop v. Cty. of Macon, 250 N.C. App. 519, 523, 794 S.E.2d
542, 547 (2016) (elements of collateral estoppel, including “a prior suit resulting in a
-4-
MCCULLERS V. LEWIS
Opinion of the Court
final judgment on the merits”). The trial court’s denial of Defendants’ estoppel motion
is therefore interlocutory and not appealable, and Defendants’ appeal thereof is
accordingly dismissed.
This Court’s decision in Can Am South, LLC v. State, 234 N.C. App. 119, 759
S.E.2d 304 (2014), is instructive regarding the Rule 12 motions. In Can Am, as here,
the defendants moved to dismiss the plaintiff’s claims under Rules 12(b)(1) and (2),
but not under Rule 12(b)(6), “based on the defense of sovereign immunity,” and moved
to dismiss under Rule 12(b)(6) “for failure of the complaint to adequately plead.” Id.
at 122, 759 S.E.2d at 307. The Can Am Court dismissed the appeal because the denial
of the defendants’ Rule 12(b)(6) motion “involve[d] neither a substantial right under
section 1-277(a) nor an adverse ruling as to personal jurisdiction under section 1-
277(b), and thus is not immediately appealable[.]” Id. at 124, 759 S.E.2d at 308.
Concerning the sovereign-immunity-based motions, the Can Am Court said that “[a]
denial of a Rule 12(b)(1) motion based on sovereign immunity does not affect a
substantial right [and is] not immediately appealable under section 1-277(a),” but
that “denial of a Rule 12(b)(2) motion premised on sovereign immunity constitutes an
adverse ruling on personal jurisdiction and is therefore immediately appealable
under section 1-277(b).” Id. at 122-24, 759 S.E.2d at 307-08 (citations omitted).
Here, following Can Am, Defendants’ appeal of the denials of their Rule
12(b)(1) and Rule 12(b)(6) motions to dismiss are not immediately appealable and
-5-
MCCULLERS V. LEWIS
Opinion of the Court
thus not properly before us, and are dismissed. However, as Defendants correctly
argue, the denial of their Rule 12(b)(2) motion to dismiss is an adverse ruling on
personal jurisdiction. Thus Defendants’ appeal thereof is properly before us pursuant
to N.C. Gen. Stat. § 1-277(b) and we will determine whether the trial court erred in
denying that motion.
III. Standard of Review
“The standard of review to be applied by a trial court in deciding a motion
under Rule 12(b)(2) depends upon the procedural context confronting the court.”
Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 693, 611
S.E.2d 179, 182 (2005) (discussing various procedural contexts). “[U]pon a
defendant’s motion to dismiss for lack of personal jurisdiction, the plaintiff bears the
burden of making out a prima facie case that jurisdiction exists.” Bauer v. Douglas
Aquatics, Inc., 207 N.C. App. 65, 68, 698 S.E.2d 757, 761 (2010) (internal citation
omitted). Where, as here, the defendant “supplements his motion to dismiss with an
affidavit or other supporting evidence,”1 the plaintiff cannot rest on the unverified
allegations in the complaint; rather, the plaintiff “must respond by affidavit or
1 Defendants’ memorandum in support of their motions to dismiss appended a number of
exhibits, most notably “job description[s]” describing the duties of those who hold the positions at RHA
that Defendants allegedly held. The record does not reflect any objection by Plaintiffs to Defendants’
submission of these documents, or to any use thereof, and Plaintiffs themselves cite to these documents
in their appellate brief in describing Defendants’ duties at RHA. As such, any argument that these
documents do not accurately describe Defendants’ duties at RHA is waived, Inspirational Network,
Inc. v. Combs, 131 N.C. App. 231, 238-39, 506 S.E.2d 754, 759-60 (1998), and we presume that the trial
court considered these documents as accurately describing Defendants’ duties.
-6-
MCCULLERS V. LEWIS
Opinion of the Court
otherwise . . . setting forth specific facts showing that the court has [personal]
jurisdiction.” Banc of Am., 169 N.C. App. at 693-94, 611 S.E.2d at 182-83; Bauer, 207
N.C. App. at 69, 698 S.E.2d at 761 (internal quotation marks, brackets, and citation
omitted). If the plaintiff offers no evidence in response, the court considers (1) any
allegations in the complaint that are not controverted by the defendant’s evidence
and (2) all facts in the defendant’s evidence, which are uncontroverted because of the
plaintiff’s failure to offer evidence in response (here, the “Trial Record”). Banc of Am.,
169 N.C. App. at 693-94, 611 S.E.2d at 183.
Generally, when this Court reviews a trial court’s denial of a Rule 12(b)(2)
motion to dismiss, it considers whether the trial court’s findings of fact are supported
by competent evidence in the record; if so, the findings of fact are conclusive on
appeal. Inspirational Network, 131 N.C. App. at 235, 506 S.E.2d at 758. Under N.C.
Gen. Stat. § 1A-1, Rule 52(a)(2) (2017), however, the trial court is not required to
make specific findings of fact unless a party so requests. Banc of Am., 169 N.C. App.
at 694, 611 S.E.2d at 183. Where, as here, the record contains no indication that the
parties requested that the trial court make specific findings of fact, and the order
appealed from contains no findings, we presume that the trial court made factual
findings sufficient to support its ruling, and it is this Court’s task to review the record
to determine whether it contains evidence that would support the trial court’s legal
conclusions, Banc of Am., 169 N.C. App. at 695, 611 S.E.2d at 183, and to review the
-7-
MCCULLERS V. LEWIS
Opinion of the Court
trial court’s legal conclusions de novo, Lulla v. Effective Minds, LLC, 184 N.C. App.
274, 278, 646 S.E.2d 129, 133 (2007).
III. Analysis
In their Rule 12(b)(2) motion to dismiss, Defendants state, in relevant part,
that the trial court “lacks . . . personal jurisdiction over them on the basis that they
are or were public employees or public officials at all times pertinent to this action
and [were] therefore cloaked with sovereign or governmental immunity.” By denying
this motion, the trial court implicitly found facts supporting its implicit general
conclusion that Defendants were subject to personal jurisdiction, and its implicit
specific conclusion that Defendants could not shield themselves from suit via the
doctrines of sovereign or governmental immunity.
As a technical matter, neither doctrine can itself protect Defendants, since
sovereign immunity and governmental immunity only apply in actions brought
against state and local governments, respectively, and not in actions brought against
individuals like Defendants. See Wray v. City of Greensboro, 370 N.C. 41, 47-48, 802
S.E.2d 894, 898-99 (2017) (describing sovereign and governmental immunity). But
Defendants’ Rule 12(b)(2) motion claims they are immune by virtue of their claimed
-8-
MCCULLERS V. LEWIS
Opinion of the Court
status as “public officials,” which refers to a related doctrine known as public official
immunity.2
Public official immunity is a “‘derivative form’ of governmental immunity” that
insulates a public official from personal liability for mere negligence in the
performance of his duties unless his alleged actions were malicious or corrupt or fell
outside and beyond the scope of his duties. Fullwood v. Barnes, 250 N.C. App. 31, 38,
792 S.E.2d 545, 550 (2016) (citation omitted); Schlossberg v. Goins, 141 N.C. App.
436, 445, 540 S.E.2d 49, 56 (2000).
This definition is dispositive as to one aspect of this case. Since public official
immunity may only insulate public officials from allegations of mere negligence, only
those of Plaintiffs’ causes of action sounding in negligence come within the doctrine’s
reach. Accordingly, we affirm the trial court’s denial of Defendants’ motion to dismiss
Plaintiffs’ first cause of action for intentional infliction of emotional distress, which is
an intentional tort claim. See Hawkins v. State, 117 N.C. App. 615, 630, 453 S.E.2d
233, 242 (1995) (affirming trial court’s denial of motion to dismiss intentional
infliction of emotional distress claim on public official immunity grounds). Moreover,
we also affirm the trial court’s denial of the motion to dismiss Plaintiffs’ fourth cause
2 Given the close relationship between the governmental immunity doctrine and the public
official immunity doctrine, Fullwood, 250 N.C. App. at 38, 792 S.E.2d at 550 (“The defense of public
official immunity is a ‘derivative form’ of governmental immunity” (citation omitted)), the fact that
Defendants alleged their status as “public officials” in the text of the motion, and the fact that Plaintiffs
raised no objection in their brief, N.C. R. App. P. 28(a), we consider Defendants’ Rule 12(b)(2) motion
to have stated a defense under the public official immunity doctrine.
-9-
MCCULLERS V. LEWIS
Opinion of the Court
of action for punitive damages, because if Plaintiffs are successful with their
intentional infliction of emotional distress claim, they may also establish a right to
punitive damages. See Thompson v. Town of Dallas, 142 N.C. App. 651, 656-57, 543
S.E.2d 901, 905-06 (2001) (affirming denial of summary judgment motion claim
seeking relief from punitive damages cause of action brought by public official sued
in his individual capacity who raised public official immunity as a defense).
Regarding Plaintiffs’ second and third causes of action, for negligent infliction
of emotional distress and negligence respectively, we must review the Trial Record to
determine whether it supports a conclusion that Defendants (1) were not public
officials (i.e., were mere public employees), (2) acted outside and beyond the scope of
their official authority, or (3) acted with malice or corruption.
We address each element in turn.
a. Public Officials
Although public officials may not be held individually liable for mere
negligence in actions taken without malice or corruption and within the scope of their
duties, public employees may be held individually liable for such actions. Isenhour v.
Hutto, 350 N.C. 601, 608-10, 517 S.E.2d 121, 127 (1999) (quotation marks and citation
omitted).
Our Supreme Court has “recognized several basic distinctions between a public
official and a public employee, including: (1) a public office is a position created by the
- 10 -
MCCULLERS V. LEWIS
Opinion of the Court
constitution or statutes; (2) a public official exercises a portion of the sovereign power;
and (3) a public official exercises discretion, while public employees perform
ministerial duties.” Id. at 610, 517 S.E.2d at 127. Courts applying this framework
have recently held that a defendant seeking to establish public official immunity
must demonstrate that all three of the Isenhour factors are present. Leonard v. Bell,
___ N.C. App. ___, ___, 803 S.E.2d 445, 453 (2017) (“Because we hold that defendants’
positions are not created by statute, we need not address the remaining elements to
reach the conclusion that defendants are not public officials entitled to immunity.”).
We have also noted that, in addition to the Isenhour factors, public officials
also are often required to take an oath of office, while a public employee is not
required to do so. Fraley v. Griffin, 217 N.C. App. 624, 627, 720 S.E.2d 694, 696
(2011). But courts considering claims of public official immunity have made clear
that, unlike the Isenhour factors, an oath of office is not “absolutely necessary[.]”
Baker v. Smith, 224 N.C. App. 423, 431 n.5, 737 S.E.2d 144, 149 n.5 (2012).
1. Position Created by Constitution or Statute
“A position is considered created by statute when the officer’s position ha[s] a
clear statutory basis or the officer ha[s] been delegated a statutory duty by a person
or organization created by statute or the Constitution.” Id. at 428, 737 S.E.2d at 148
(internal quotation marks, citations, and emphasis omitted).
- 11 -
MCCULLERS V. LEWIS
Opinion of the Court
Defendants argue that their positions are “created by” N.C. Gen. Stat. § 157(2017), but point to no language in our Constitution or any statute expressly creating
their positions. Defendants also argue that they have been delegated statutory duties
by RHA,3 which is statutorily authorized to (1) “employ . . . such other officers, agents,
and employees, permanent and temporary, as it may require” and (2) “delegate to one
or more of its agents or employees such powers or duties as it may deem proper.” N.C.
Gen. Stat. § 157-5(e); see also N.C. Gen. Stat. § 157-9(a) (authorizing RHA to “exercise
any or all of the powers herein conferred upon it, either generally or with respect to
any specific housing project or projects, though or by an agent or agents which it may
designate”).
Our case law makes clear that where a statute expressly creates the authority
to delegate a duty, a person or organization who is delegated and performs the duty
on behalf of the person or organization in whom the statute vests the authority to
delegate passes the first the Isenhour factor. Baker, 224 N.C. App. at 428-30, 737
S.E.2d at 148-49 (holding that where the relevant statute (1) gave the
constitutionally-created sheriff the duty to take “care and custody of the jail” and (2)
provided the sheriff with authority to “appoint a deputy or employ others to assist
him in performing his official duties[,]” an assistant jailer’s “position [was] created by
[the North Carolina] Constitution” (emphasis omitted)); Hobbs v. N.C. Dep’t of Hum.
3 Plaintiffs concede that RHA is an organization created by statute.
- 12 -
MCCULLERS V. LEWIS
Opinion of the Court
Res., 135 N.C. App. 412, 421, 520 S.E.2d 595, 602 (1999) (holding that because the
relevant statute gave the director of social services the authority “to delegate to one
or more members of his staff the authority to act as his representative,” social workers
were acting as public officials for public official immunity purposes (citation
omitted)). In their brief, Plaintiffs concede that N.C. Gen. Stat. § 157-5(e) “allows a
housing authority to delegate its powers and duties to one or more of its agents,” but
argue that “it does not require that all employees . . . actually receive any delegated
duties.”
The Trial Record shows that many of Defendants’ duties were created by N.C.
Gen. Stat. § 157, and must therefore have been delegated them by RHA. For example,
N.C. Gen. Stat. § 157-9 empowers the RHA to “prepare, carry out and operate housing
projects”4 and to “manage as agent of any city or municipality . . . any housing project
constructed or owned by such city.” N.C. Gen. Stat. § 157-9(a). Exhibit 3 to
Defendants’ memorandum in support of their motion to dismiss describes Lewis’
duties as including, inter alia, “[p]lann[ing], direct[ing], and coordinat[ing] the work
of [subordinates] in facilitating the orderly management and operations of all housing
units” and “[d]evelop[ing] and implement[ing] management plans,” and Exhibit 4
describes Ayodele’s duties as including, inter alia, “managing one or more public
4 “Housing project” is statutorily defined as including “all real and personal property” and
“buildings” “constructed [inter alia] [t]o provide safe and sanitary dwelling accommodations” for
persons of modest incomes. N.C. Gen. Stat. § 157-3(12).
- 13 -
MCCULLERS V. LEWIS
Opinion of the Court
housing and/or affordable market rate communities” and “overall management of [a
public housing and/or affordable market rate community] including planning,
budgeting, marketing, and fiscal management.” Such job descriptions parrot the
duties expressly granted to RHA to operate and manage housing projects, which
Plaintiffs concede RHA was authorized to delegate by statute.
The significant overlap between RHA’s delegable duties and Defendants’
duties as described in Exhibits 3 and 4—which Plaintiffs did not contest with their
own proffer of evidence, and which the uncontroverted allegations of Plaintiffs’
complaint do not call into question—leads us to conclude that Defendants held
positions created by statute.
2. Exercise of a Portion of the Sovereign Power
While the contours of what the sovereign power includes are not clearly defined
by our case law, it is evident that a defendant claiming themself a public official for
immunity purposes must show that they have exercised a portion of some power that
only the sovereign may exercise, as granted to the sovereign by either the
Constitution or a statute. Compare Baker, 224 N.C. App. at 430, 737 S.E.2d at 149
(holding that an assistant jailer exercises a portion of the sovereign power “by
detaining misdemeanants and those awaiting trial in the jail”), with Mullis v.
Sechrest, 126 N.C. App. 91, 98, 484 S.E.2d 423, 427 (1997) (denying a public school
teacher immunity “because his duties at the time the alleged negligence occurred are
- 14 -
MCCULLERS V. LEWIS
Opinion of the Court
not considered in the eyes of the law to involve the exercise of the sovereign power”),
rev’d on other grounds, 347 N.C. 548, 495 S.E.2d 721 (1998); see also Leonard, ___
N.C. App. at ___, 803 S.E.2d at 453 (noting that “there is nothing uniquely sovereign
about the health services provided by [the defendant, a physician,] to plaintiff in this
case, except that plaintiff was an inmate” in a state prison).
Plaintiffs concede that the “sovereign powers associated with housing
authorities are set forth in N.C. Gen. Stat. § 157-9.” See N.C. Gen. Stat. § 157-9(listing the “public powers” of housing authorities like RHA). As noted above, the
Trial Record demonstrates significant overlap between the N.C. Gen. Stat. § 157-9sovereign powers and the duties delegated to Defendants. Plaintiffs’ argument that
“there is little overlap between the powers listed and Defendants’ duties” is actually
a concession regarding the second Isenhour factor, since any overlap between RHA’s
public powers and the delegable duties performed by Defendants on RHA’s behalf
compels a conclusion that Defendants exercised “a portion of the sovereign power.”
Isenhour, 350 N.C. at 610, 517 S.E.2d at 127 (1999) (emphasis added); see also State
v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965) (“the incumbent of an office
shall involve the exercise of some portion of the sovereign power”) (emphasis added)).
We accordingly conclude that Defendants exercised a portion of the sovereign
power.
3. Discretion
- 15 -
MCCULLERS V. LEWIS
Opinion of the Court
Our Supreme Court has said that public officials “exercise a certain amount of
discretion, while employees perform ministerial duties. Discretionary acts are those
requiring personal deliberation, decision and judgment; duties are ministerial when
they are absolute, certain, and imperative, involving merely the execution of a specific
duty arising from fixed and designated facts.” Meyer v. Walls, 347 N.C. 97, 113, 489
S.E.2d 880, 889 (1997) (internal quotation marks and citations omitted). The decision
making involved must be substantial, as “a mere employee doing a mechanical job,
. . . must exercise some sort of judgment in plying his shovel or driving his truck --
but he is in no sense invested with a discretion which attends a public officer in the
discharge of public or governmental duties, not ministerial in their character.” Miller
v. Jones, 224 N.C. 783, 787, 32 S.E.2d 594, 597 (1945).
The Trial Record shows that Defendants were tasked with, inter alia,
“independently” (1) planning, directing, and coordinating the management of RHA
housing units, (2) developing, implementing, and executing management plans, (3)
formulating various policies and procedures, (4) evaluating overall program and
employee performance, (5) recommending and preparing budgets, (6) inspecting
properties for conformance with applicable regulations, (7) planning the work of and
supervising staff, (8) analyzing rents, (9) counseling residents, and (10) resolving
disputes involving residents, duties which led RHA to seek applicants with
experience in “management” and “decision making.”
- 16 -
MCCULLERS V. LEWIS
Opinion of the Court
Plaintiffs list certain of Defendants’ duties that arguably require little
judgment, and argue that Defendants “executed ministerial tasks[.]” But as
Plaintiffs note, we cannot single out a handful of Defendants’ duties in deciding
whether they require discretion, but must consider Defendants’ duties as a whole.
Baker, 224 N.C. App. at 431, 737 S.E.2d. at 150. Moreover, Plaintiffs’ argument
conflicts with the fact that their complaint, distilled to its essence, alleges that
Defendants harmed Plaintiffs by refusing or failing to exercise their discretionary
authority to move Plaintiffs to another apartment: Plaintiffs allege therein that
Defendants “refused,” “ignored,” or “denied” Plaintiffs’ requests for accommodation.
Such allegations speak the language of discretion. The Trial Record contains nothing
tending to show that Defendants had any specific, fixed duty to transfer Plaintiffs
such that Defendants’ denials of Plaintiffs’ requests constituted refusals or failures
to execute already-made decisions, and any effort to hold Defendants liable for
refusing or failing to make a decision that was not theirs to make clearly must fail.
We accordingly conclude that Defendants’ positions were discretionary in
nature, and that Defendants were public officials in the meaning of Isenhour.5
b. Scope of Authority
5The Trial Record contains no clear indication of whether Defendants took an oath of office or
not. But since this consideration is not dispositive to the Isenhour public-official analysis, see Baker,
224 N.C. App. at 431 n.5, 737 S.E.2d at 149 n.5, and we find the other Isenhour factors support our
conclusion, we need not analyze this consideration.
- 17 -
MCCULLERS V. LEWIS
Opinion of the Court
Even as public officials, sovereign immunity will not shield Defendants from
suit for actions they took that fell outside and beyond the scope of their official
authority.
But the Trial Record contains no evidence that Defendants exceeded their
authority in this case. Plaintiffs’ conclusory allegation that “[u]pon information and
belief, [Defendants] also exceeded their authority” is insufficient as a matter of
pleading to withstand Defendants’ motion to dismiss. Meyer, 347 N.C. at 114, 489
S.E.2d at 890 (noting that conclusory allegations are insufficient to withstand a
motion to dismiss, and that “[t]he facts alleged in the complaint must support such a
conclusion”). The complaint elsewhere alleges that Defendants were public housing
managers at RHA, and as discussed above, the thrust of Plaintiffs’ argument is that
Defendants harmed Plaintiffs by refusing or failing to exercise the discretionary
authority Defendants had, as RHA public housing managers, to move Plaintiffs to
another apartment. Without a clear duty to exercise that authority, which the Trial
Record does not reflect, the trial court lacked evidence to conclude that Defendants
acted outside and beyond the scope of their authority by not moving Plaintiffs to
another apartment. See Clouse v. Gordon, 115 N.C. App. 500, 509, 445 S.E.2d 428,
433 (1994) (“the law is such that mere inaction does not constitute negligence in the
absence of a duty to act” (internal quotation marks and citations omitted)).
- 18 -
MCCULLERS V. LEWIS
Opinion of the Court
We accordingly conclude that the Trial Record does not support a conclusion
that Defendants acted outside and beyond the scope of their official authority.
c. Malice or Corruption
Finally, even as public officials acting within the scope of their official
authority, sovereign immunity will not shield Defendants from suit for actions they
took which were malicious or corrupt. Plaintiffs make no allegation that Defendants’
actions or inactions were corrupt, and we accordingly analyze only whether the Trial
Record contains evidence that Defendants’ actions or inactions were malicious.
“A malicious act is one which is: (1) done wantonly, (2) contrary to the actor’s
duty, and (3) intended to be injurious to another.” Fullwood, 250 N.C. App. at 38, 792
S.E.2d at 550 (internal quotation marks and citations omitted). This Court has said
that public officials are presumed to have executed their duties in good faith, absent
substantial evidence to the contrary:
It is well settled that absent evidence to the contrary, it will
always be presumed that public officials will discharge
their duties in good faith and exercise their powers in
accord with the spirit and purpose of the law. This
presumption places a heavy burden on the party
challenging the validity of public officials actions to
overcome this presumption by competent and substantial
evidence. Moreover, [e]vidence offered to meet or rebut the
presumption of good faith must be sufficient by virtue of its
reasonableness, not by mere supposition. It must be
factual, not hypothetical; supported by fact, not by surmise.
- 19 -
MCCULLERS V. LEWIS
Opinion of the Court
Strickland v. Hedrick, 194 N.C. App. 1, 10-11, 669 S.E.2d 61, 68 (2008) (internal
quotation marks and citations omitted).
Beyond a conclusory allegation that Defendants “acted with malice,” which is
insufficient standing alone to withstand Defendants’ motion to dismiss, Meyer, 347
N.C. at 114, 489 S.E.2d at 890, the complaint alleges only that Defendants (1) “acted
with . . . reckless indifference to the [Plaintiffs’] rights” and (2) refused or failed to
exercise their discretionary authority to transfer Plaintiffs to another apartment,
which Plaintiffs allege was “intended . . . to cause [Plaintiffs] extreme emotional
distress.” This Court has made clear that a plaintiff may not satisfy its burden of
pleading malice by alleging the defendant was recklessly indifferent. Schlossberg v.
Goins, 141 N.C. App. 436, 446, 540 S.E.2d 49, 56 (2000) (citations omitted). And
Plaintiffs’ other conclusory allegations that Defendants’ actions or inactions were
intended to cause them harm are insufficient to overcome the presumption that public
officials act in good faith. See Mitchell v. Pruden, 251 N.C. App. 554, 561-62, 796
S.E.2d 77, 83 (2017) (noting the plaintiffs’ “bare, conclusory allegations that
defendant acted with malice” in holding that, “[b]ecause we presume that defendant
discharged his duties in good faith and exercised his power in accordance with the
spirit and purpose of the law and plaintiffs have not shown any evidence to the
contrary, we hold that the [] complaint failed to allege facts which would support a
legal conclusion that defendant acted with malice”).
- 20 -
MCCULLERS V. LEWIS
Opinion of the Court
In sum, we conclude that the Trial Record does not support a conclusion that
Defendants acted with malice or corruption.
IV. Conclusion
Because we conclude that Defendants (1) were not mere public employees, (2)
did not act outside and beyond the scope of their official authority, and (3) did not act
with malice or corruption, we conclude that Defendants were shielded from Plaintiffs’
causes of action sounding in negligence by the public official immunity doctrine, and
the trial court erred in denying Defendants’ Rule 12(b)(2) motion to dismiss Plaintiffs’
second and third causes of action for lack of personal jurisdiction.
Defendants’ appeal of the denial of their Rule 12(b)(1), 12(b)(6), and estoppel
motions is dismissed, the denial of Defendants’ Rule 12(b)(2) motion is affirmed as to
Plaintiffs’ first and fourth causes of action, and the denial of Defendants’ Rule 12(b)(2)
motion is reversed as to Plaintiffs’ second and third causes of action. This case is
remanded to the trial court for entry of an order dismissing Plaintiffs’ second and
third causes of action and for further proceedings consistent with this opinion.
DISMISSED IN PART, AFFIRMED IN PART, AND REVERSED IN PART.
Chief Judge MCGEE and Judge DIETZ concur.
- 21 -