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McCullers v. Lewis

Court of Appeals of North Carolina

May 7, 2019

BRITTNEY MCCULLERS; and RACHEL GOODLING, as Guardian ad Litem for the minor child BRI'NAJASHA MCCULLERS, Plaintiffs,
TAYLORIA LEWIS, in her individual capacity, and MICHAEL AYODELE, in his individual capacity, Defendants.

          Heard in the Court of Appeals March 12, 2019.

          Appeal by Defendants from order entered 10 May 2018 by Judge Henry W. Hight, Jr., in Wake County No. 17 CVS 14445 Superior Court.

          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 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.

         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 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 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 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 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 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. ...

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