Delgado v. Petruk

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedu re.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-34
Filed: 6 October 2015
Mecklenburg County, No. 13 CVS 10624
JHONNY A. DELGADO, Plaintiff,
v.
LESLIE PETRUK, STEPPING STONES COUNSELING AND CONSULTING OF
CHARLOTTE, PLLC, and THE STONE CENTER FOR COUNSELING AND
LEADERSHIP, PLLC, Defendants.
Appeal by defendants from Order entered 25 September 2014 by Judge Eric L.
Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 12
August 2015.
HORACK, TALLEY, PHARR & LOWNDES, P.A., by Kimberly Sullivan, for
plaintiff.
DAVIS AND HAMRICK, L.L.P., by Jason L. Walters, for defendants.
ELMORE, Judge.
Jhonny A. Delgado (plaintiff) filed a complaint against Leslie Petruk (Petruk),
Stepping Stones Counseling and Consulting of Charlotte, PLLC, and The Stone
Center for Counseling and Leadership, PLLC (together defendants) on 13 June 2013
DELGADO V. PETRUK
Opinion of the Court
alleging three causes of action: (1) negligent infliction of emotional distress; (2)
intentional infliction of emotional distress; and (3) punitive damages.
Defendants filed a motion for summary judgment on 11 July 2014 arguing,
“The North Carolina General Statutes require that suspicion of child abuse be
reported to the county department of social services. The statutes further provide for
immunity from any civil liability provided that the person was acting in good faith.
By statute, good faith is presumed.” The trial court denied defendants’ motion for
summary judgment by the Order entered on 25 September 2014, stating, “[I]t
appear[s] that there are genuine issues of material fact[.]” Defendants filed a notice
of appeal on 3 October 2014. Plaintiff filed a motion to dismiss the appeal, stating
that defendants are appealing from an interlocutory order that does not affect a
substantial right. After careful consideration and consistent with plaintiff’s motion,
we conclude that defendants’ appeal has been taken from an unappealable
interlocutory order and is not properly before us.
I. Background
Plaintiff and Jessica Wright’s (Wright) five-year-old daughter, S.D.W., began
attending play therapy sessions at Stepping Stones in March 2010 to treat a sensory
processing disorder. On two occasions, in April and May 2010, Andrea Miller (Miller),
a licensed counselor and registered play therapist, observed S.D.W. “insert objects in
the anal opening of a doll.” Miller interpreted these actions as “sexualized play” and
-2-
DELGADO V. PETRUK
Opinion of the Court
scheduled a meeting for further evaluation on 15 June 2010 with S.D.W.’s mother,
Wright. Miller did not request that plaintiff attend the meeting. Miller e-mailed
plaintiff that same day “to set up a time to talk on the phone regarding [S.D.W.’s]
progress[.]”
After speaking with Wright, Miller determined that S.D.W. should meet with
Miller’s co-worker, Petruk, for further evaluation regarding concerns of sexual abuse
because Petruk has experience doing “forensic interviews with abused children.” The
next day, Miller asked S.D.W. to draw a picture of a person, and S.D.W. drew the
picture but “left the midriff showing with her belly button exposed.” Miller noted that
this is not “age-appropriate” and “indicate[s] more concern.”
On 17 June 2010, Petruk conducted a forensic interview with S.D.W. where
S.D.W. “eventually stated that her dad had touched her.” Petruk asked S.D.W. to
repeat the disclosure to Wright. Later, S.D.W. inserted a wand in a doll’s vaginal
opening and held it up and said, “Look, she’s a scarecrow.” After the interview,
Wright called the Mecklenburg County Department of Social Services (DSS) to report
what S.D.W. revealed. A DSS case worker instructed Wright that S.D.W. should have
no contact with plaintiff pending the investigation. S.D.W. “was seen by [a] social
worker but not interviewed due to complications that arose from [the] child already
being interviewed by a forensic interviewer that works with the child’s therapist.”
-3-
DELGADO V. PETRUK
Opinion of the Court
On 22 June 2010, Wright filed a motion for temporary emergency custody and
sole custody of S.D.W. DSS opened an investigation and referred S.D.W. to Pat’s
Place Child Advocacy Center for evaluation and to Levine Children’s Hospital for a
physical evaluation. On 4 August 2010, Levine Children’s Hospital found a normal
genital and rectal exam, and Pat’s Place and DSS determined that the report of abuse
was unsubstantiated. DSS closed the case on 5 August 2010 and its report disposed
of the case as “service no longer needed” with the following rationale:
The techniques utilized by the therapist to conduct a
forensic interview are questionable. Her notes were
examined by Pats Place and many concern[s] were noted
about the techniques, question sets, and use of anatomical
dolls. The child did have a forensic interview at Pats Place
and denies any inappropriate touching. There is no
evidence at this time to support a finding for sexual abuse.
The case will be unsubstantiated and closed.
Wright requested that DSS review the case again, but DSS decided that the case
would remain closed. As part of plaintiff and Wright’s custody battle, the Honorable
Judge Jena Culler ordered an evaluation of S.D.W. on 8 March 2012 to address
whether she had ever been sexually abused. As a result, the director and assistant
director of the University of North Carolina School of Medicine Program on Childhood
Trauma issued a twenty-four page report on 30 July 2012, stating, “Taken as a whole,
we do not believe the evidence supports a conclusion that [S.D.W.] was sexually
abused by her father.” In their conclusions, they noted several reasons why assessing
the allegations had been difficult:
-4-
DELGADO V. PETRUK
Opinion of the Court
The interview conducted by Leslie Petruk during which
[S.D.W.] initially reported sexual abuse failed to meet
minimal forensic standards. Specifically, highly suggestive
questioning was used, anatomical dolls were misused, and
the interview setting and structure encouraged play and
fantasy.
They also stated, “[W]e recommend a gradual and deliberate process to restore
[S.D.W.]’s and her father’s relationship that keeps both the child and parent safe.”
Plaintiff filed a complaint on 13 June 2013 alleging three causes of action: (1)
negligent infliction of emotional distress; (2) intentional infliction of emotional
distress; and (3) punitive damages. Defendants answered the complaint on 12 August
2013 asserting as a defense that they had an affirmative duty to report abuse under
N.C. Gen. Stat. § 7B-301 (2013). Defendants further stated that under N.C. Gen.
Stat. § 7B-309 (2013), they are immune from liability because anyone who makes a
report pursuant to that Article is immune from liability provided that the person was
acting in good faith and good faith is presumed. Thus, defendants claim that the
statutes cited above bar any recovery by plaintiff, and the trial court erred in denying
their motion for summary judgment.
II. Analysis
Defendants admit that the question of whether this particular statutory
immunity is a substantial right, and the denial of the motion for summary judgment
affects a substantial right, appears to be one of first impression for this Court.
Defendants state, however, that the statutory immunity here is analogous to
-5-
DELGADO V. PETRUK
Opinion of the Court
governmental or sovereign immunity and, thus, an order regarding the immunity is
immediately appealable. They claim that the immunity is more than an affirmative
defense; rather it completely bars any type of recovery. For the reasons discussed
below, we disagree.
A. Interlocutory Order
“Denial of summary judgment is interlocutory because it is not a judgment that
‘disposes of the cause as to all the parties, leaving nothing to be judicially determined
between them in the trial court.’ ” Snyder v. Learning Servs. Corp., 187 N.C. App.
480, 482, 653 S.E.2d 548, 550 (2007) (quoting Veazey v. City of Durham, 231 N.C. 357,
361–62, 57 S.E.2d 377, 381 (1950)). “Generally, there is no right of immediate appeal
from interlocutory orders and judgments.” Goldston v. American Motors Corp., 326
N.C. 723, 725, 392 S.E.2d 735, 736 (1990). N.C. Gen. Stat. § 7A-27(b)(3) (2013) and
N.C. Gen. Stat. § 1-277(a) (2013) provide exceptions to the general rule for orders or
judgments that affect a substantial right. A substantial right is “one which will
clearly be lost or irremediably adversely affected if the order is not reviewable before
final judgment.” Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335,
299 S.E.2d 777, 780 (1983).
“[F]or an interlocutory order to be immediately appealable, it must: (1) affect
a substantial right and (2) work injury if not corrected before final judgment.”
Goldston, 326 N.C. at 728, 392 S.E.2d at 737 (citing Investments v. Housing, Inc., 292
-6-
DELGADO V. PETRUK
Opinion of the Court
N.C. 93, 100, 232 S.E.2d 667, 672 (1977)). “Whether an interlocutory appeal affects
a substantial right is determined on a case by case basis.” McConnell v. McConnell,
151 N.C. App. 622, 625, 566 S.E.2d 801, 803–04 (2002) (citing McCallum v. N.C. Coop.
Extensive Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231 (2001)). “The burden to
establish that a substantial right will be affected unless he is allowed immediate
appeal from an interlocutory order is on the appellant.” Id. at 625, 566 S.E.2d at 804
(citing Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d
252, 253 (1994)). “Our courts have generally taken a restrictive view of the
substantial right exception.” Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526
S.E.2d 666, 670 (2000) (citing Blackwelder, 60 N.C. App. at 334, 299 S.E.2d at 780).
“[I]f the defense of governmental immunity is asserted as grounds for the
summary judgment motion, the denial of the motion has been held to affect a
substantial right, and the order is immediately appealable[.]” Hallman v. Charlotte-
Mecklenburg Bd. of Educ., 124 N.C. App. 435, 437, 477 S.E.2d 179, 180 (1996) (citing
Hickman v. Fuqua, 108 N.C. App. 80, 82, 422 S.E.2d 449, 450 (1992)). “As a general
rule, the doctrine of governmental, or sovereign immunity bars actions against, inter
alia, the state, its counties, and its public officials sued in their official capacity.”
Lucas v. Swain Cty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 540 (2002)
(internal quotation marks and citation omitted). “According to well-established
North Carolina law, governmental immunity is an immunity from suit rather than a
-7-
DELGADO V. PETRUK
Opinion of the Court
mere defense to liability[.]” Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C. App.
359, 363, 731 S.E.2d 245, 248 (2012) (internal quotation marks and citations omitted).
B. Statutory Immunity v. Sovereign or Governmental Immunity
Plaintiff contends that defendants “must prove as a matter of law that they
meet all of the statutory requirements of N.C.G.S. § 7B-309 in order to receive
statutory immunity.” Plaintiff maintains that because defendants have failed to meet
this burden, they have not proven that a substantial right is affected. Therefore,
plaintiff argues that the order denying defendant’s motion for summary judgment is
not immediately appealable.
Defendants maintain that the statutory immunity claimed here affects a
substantial right because it is more than an affirmative defense. Instead, defendants
claim it completely bars any type of recovery.
The statutes in question include: N.C. Gen. Stat. § 7B-301, titled, “Duty to
report abuse, neglect, dependency, or death due to maltreatment,” and N.C. Gen.
Stat. § 7B-309, titled, “Immunity of persons reporting and cooperating in an
assessment.”
Section 7B-301(a) provides,
Any person or institution who has cause to suspect that any
juvenile is abused, neglected, or dependent, as defined by
G.S. 7B-101, or has died as the result of maltreatment,
shall report the case of that juvenile to the director of the
department of social services in the county where the
juvenile resides or is found.
-8-
DELGADO V. PETRUK
Opinion of the Court
N.C. Gen. Stat. § 7B-301(a) (2013). Section 7B-309 states,
Anyone who makes a report pursuant to this Article,
cooperates with the county department of social services in
a protective services assessment, testifies in any judicial
proceeding resulting from a protective services report or
assessment, or otherwise participates in the program
authorized by this Article, is immune from any civil or
criminal liability that might otherwise be incurred or
imposed for that action provided that the person was acting
in good faith. In any proceeding involving liability, good
faith is presumed.
N.C. Gen. Stat. § 7B-309 (2013).
At the heart of defendants’ appeal is their argument that for appealability
purposes statutory immunity is the equivalent of governmental immunity, and
without an immediate appeal they lose the benefit of immunity. Defendants’
argument, however, is not supported by case law. Defendants cite to Craig v. New
Hanover Cty. Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (2009), where the defendant-
Board of Education raised “the complete defense of government immunity,” which our
Supreme Court reiterated “is more than a mere affirmative defense, as it shields a
defendant entirely from having to answer for its conduct at all in a civil suit for
damages.” Id. at 337, 678 S.E.2d at 354. Neither Craig nor any case cited by
defendants state that statutory immunity is afforded the same shield as governmental
immunity.
Plaintiff cites to Wallace v. Jarvis, 119 N.C. App. 582, 585, 459 S.E.2d 44, 47
-9-
DELGADO V. PETRUK
Opinion of the Court
(1995), to show that defendants have failed to meet the statutory requirements for
immunity as a matter of law. In Wallace, the defendant, an attorney, contacted the
North Carolina State Bar to report possible problems with the plaintiff, an associate
attorney at the defendant’s law firm. Id. at 583, 459 S.E.2d at 45. The plaintiff filed
suit alleging, among other things, slander and malicious prosecution. Id. The
defendant moved for summary judgment, and the trial court denied his motion. Id.
at 583, 459 S.E.2d at 45–46. The defendant appealed, arguing that “his
communication to the State Bar was absolutely privileged and he is therefore immune
from suit” based on statutory immunity. Id. at 584, 459 S.E.2d at 46. The defendant
relied on Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993), where this Court
held that the defendants were entitled to an immediate appeal from a denial of
summary judgment because “[a] valid claim of immunity is more than a defense in a
lawsuit; it is in essence immunity from suit.” Wallace, 119 N.C. App. at 584, 459
S.E.2d at 46 (quoting Slade, 110 N.C. App. at 425, 429 S.E.2d at 746) (quotation
marks omitted).
The Wallace Court distinguished Slade, however, stating, “Slade involved
sovereign immunity, which is a common law theory or defense established by [the]
Court to protect the sovereign or the State and its agents from suit.” Id. at 585, 459
S.E.2d at 46 (quoting Slade, 110 N.C. App. at 426, 429 S.E.2d at 746) (quotation
marks omitted). But in Wallace, the immunity claimed by the defendant was
- 10 -
DELGADO V. PETRUK
Opinion of the Court
“statutory in nature and is available to him if he satisfies all of the requirements of
N.C. Gen. Stat. § 84-28.2. Thus, defendant would be immune from suit only if his
communications to the State Bar were made without malice.” Id. at 585, 459 S.E.2d
at 46–47. This Court dismissed the defendant’s appeal as not affecting a substantial
right, stating, “[W]e cannot conclude that defendant is entitled as a matter of law to
immunity from suit under [the statute].” Id. at 585, 459 S.E.2d at 47.
Here, like in Wallace, we must dismiss the appeal as not affecting a substantial
right because we cannot conclude that defendants are entitled to immunity as a
matter of law under N.C. Gen. Stat. § 7B-309. Although in defendants’ motion for
summary judgment they assert that they are entitled to statutory immunity based
on the presumption of good faith, they have failed to satisfy the statutory
requirements as a matter of law that must first be met before reaching the good faith
analysis.
III. Conclusion
Defendants are not entitled to statutory immunity as a matter of law because
there are genuine issues of material fact surrounding whether they are shielded from
liability. Therefore, the denial of defendants’ summary judgment motion did not
affect a substantial right entitling them to an immediate right of appeal. We dismiss
defendants’ appeal as it has been taken from an unappealable interlocutory order.
DISMISSED.
- 11 -
DELGADO V. PETRUK
Opinion of the Court
Judge CALABRIA concurs.
Judge DILLON concurs in the result.
Report per Rule 30(e).
- 12 -