Appeal by defendants from order entered 25 January 2002 by
Judge Russell G. Walker, Jr., in Guilford County Superior Court.
Heard in the Court of Appeals 12 May 2003.
Eloral Hennis, pro se, for plaintiff-appellee.
Guilford County Attorney's Office, by Mercedes O. Chut, for
defendants-appellants.
LEVINSON, Judge.
Defendants appeal from the trial court's partial denial of
their motion for dismissal of plaintiff's claims. For the reasons
that follow, we reverse and remand.
Plaintiff (Eloral Hennis) is a citizen of Guilford County.
Defendants are Guilford County; Roger Cotten, County Manager; Edwin
Pons, the Deputy County Manager at the time plaintiff's complaint
was filed; and Mark Kirstner, the Chief of the Zoning Section of
the County Planning Department at the time plaintiff's complaint
was filed. In 1998, Guilford County filed a complaint against
plaintiff alleging that plaintiff's operation of a scrap processingsalvage yard (the scrap yard), at a location zoned for agricultural
use, constituted a violation of the County's zoning regulations.
In July, 1998, judgment was entered against plaintiff permanently
enjoining him from operating the scrap yard, and ordering him to
remove all of the scrap yard materials from the premises. When
plaintiff failed to remove the items from the scrap yard, Guilford
County instituted contempt proceedings. In September, 1998, a
judgment was entered in Guilford County Superior Court that (1)
imposed upon plaintiff $48,775.00 in civil money penalties, and (2)
ordered Guilford County to abate the zoning violation by removing
all offending items from plaintiff's premises. Thereafter,
Guilford County hauled away the scrap yard materials, and in
November, 1998, the county filed another action against plaintiff
to recover the cost of the abatement. Plaintiff's answer asserted
that he was the victim of harassment and of “hate crimes,” and that
defendants had destroyed his property in the course of conducting
the abatement. A bench trial was conducted on issues associated
with the abatement order, and in March, 2000, judgment was entered,
stating in relevant part that:
1. The Order of Abatement . . . directing
[Guilford County] to abate the zoning
violation was carried out by [Guilford County
employees] in a workmanlike manner consistent
with the Abatement Order and in good faith.
2. Each and every item of property removed
from the site . . . was within the scope of
the Abatement Order. . . .
Plaintiff filed the present action against defendants on 6
September 2001, asserting new claims arising out of defendants'execution of the abatement order. His complaint alleged that in
September, 1998, while “acting in accordance and under the
authority of and on behalf of defendant Guilford County” the
defendants had “perpetrate[d] ambiguous acts, miss-conduct, and
crimes” [sic] in the course of their abatement of plaintiff's
zoning violations. Plaintiff sought damages for “losses,
suffering, mental distress and anguish, damage to reputation and
viability for elective office, damage from slander, loss of income,
and loss of future income due to destruction of property and
damaged reputation.”
On 8 October 2001, defendants moved for dismissal of
plaintiff's complaint under N.C.G.S. § 1A-1, Rule 12(b)(1),
12(b)(2), and 12(b)(6), and sought sanctions under N.C.G.S. § 1A-1,
Rule 11. Defendants' motion asserted in pertinent part that:
. . . .
3. Pursuant to Rule 12(b)(1)and 12(b)(2), . .
. this Court lacks subject matter jurisdiction
over this action and does not have personal
jurisdiction over the Defendants. [Plaintiff]
has not alleged waiver of immunity through the
purchase of insurance or participation in a
local government risk sharing pool pursuant to
N.C.G.S. § 153A-435. Therefore, all
Defendants have sovereign and governmental
immunity from this suit. . . . Plaintiff has
not alleged waiver of any immunity on the part
of [defendants]. . . .
4. Pursuant to Rule 12(b)(6) . . . the
Complaint fails to state a cause of action
over the [d]efendants. . . . In the
alternative . . . these claims are barred as
the Plaintiff has not alleged waiver of
immunity. . . .
(emphasis added). Defendants also asserted, as alternative grounds
for dismissal of plaintiff's complaint, the doctrines of resjudicata and collateral estoppel, and defendant's failure to raise
compulsory counterclaims in the prior civil action regarding
execution of the abatement order. Further, defendants asserted
that plaintiff's claim was “not well grounded in facts and is not
warranted by existing law or a good faith argument for the
extension, modification or reversal of existing law” and that the
complaint apparently “was filed to harass the Defendants.” On 25
January 2002, the trial court dismissed “all of Plaintiff's claims
against the Defendants for damage to his real and personal
property” but “denie[d] the Defendants' Motion with respect to the
remaining claims of the Plaintiff's Complaint.” The trial court
deferred its ruling on defendants' motion for sanctions. From this
order defendants appeal.
Defendants appeal from the trial court's denial in part of
defendants' motion to dismiss plaintiff's complaint, pursuant to
N.C.G.S. § 1A-1, Rule 12(b)(6) (2001). An order “is either
interlocutory or the final determination of the rights of the
parties.” N.C.G.S. § 1A-1, Rule 54(a) (2001). A final judgment
“disposes of the cause as to all the parties, leaving nothing to be
judicially determined between them in the trial court[,]” but an
interlocutory order “does not dispose of the case, but leaves it
for further action by the trial court in order to settle and
determine the entire controversy.”
Veazey v. Durham, 231 N.C. 357,
361-362, 57 S.E.2d 377, 381 (1950). “A ruling denying a motion to
dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) is ordinarily anonappealable interlocutory order.”
Bolton Corp. v. T. A. Loving
Co., 317 N.C. 623, 629, 347 S.E.2d 369, 373 (1986) (citation
omitted). However, in the instant case, defendants have appealed
an order denying their motion to dismiss based on sovereign
immunity. As this Court noted in
Price v. Davis, 132 N.C. App.
556, 558-559, 512 S.E.2d 783, 785-786 (1999):
[T]his Court has repeatedly held that appeals
raising issues of governmental or sovereign
immunity affect a substantial right sufficient
to warrant immediate appellate review. “We
allow interlocutory appeals in these
situations because the 'essence of absolute
immunity is its possessor's entitlement not to
have to answer for his conduct in a civil
damages action.'”
(quoting
Epps v. Duke University, 122 N.C. App. 198, 201, 468
S.E.2d 846, 849,
disc. review denied, 344 N.C. 436, 476 S.E.2d 115
(1996)). We conclude that defendants' appeal is properly before
us.
“'The rule of sovereign immunity applies when the governmental
entity is being sued for the performance of a governmental, rather
than proprietary, function.'”
Dalenko v. Wake County Dep't of
Human Servs., __ N.C. App. __, __, 578 S.E.2d 599,__ (2003)
(quoting
Paquette v. County of Durham, __ N.C. App. __, __, 573
S.E.2d 715, 717 (2002),
disc. review denied, __ N.C. __, __ S.E.2d
__ (2003)). Therefore, “[i]n deciding whether a governmental
entity may claim immunity from suit, we must first determine
whether the nature of the complained-of act is proprietary or
governmental.”
Stephenson v. Town of Garner, 136 N.C. App. 444,
454, 524 S.E.2d 608, 615,
disc. review denied, 352 N.C. 156, 544S.E.2d 243 (2000). “In enacting and enforcing zoning regulations,
a municipality acts as a governmental agency[.]”
Raleigh v.
Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950)
. In
Baucom's
Nursery Co. v. Mecklenburg County, 89 N.C. App. 542, 544, 366
S.E.2d 558, 560,
disc. review denied, 322 N.C. 834, 371 S.E.2d 274
(1988), this Court considered “plaintiff's alleged causes of action
for actual and punitive damages occurring as a result of the
enactment and enforcement of the amended zoning ordinance.” The
Court held:
In this regard, the county, as a governmental
agency, exercises the police power of the
State and is thus exempt from liability under
the common law rule of governmental immunity.
The individual county commissioners are
likewise engaged in the performance of a
governmental function in either enacting or
enforcing the amended zoning ordinance. Thus,
they also are protected from liability by the
doctrine of governmental immunity.
Id. We conclude that, in its enforcement of Guilford County's
zoning regulations, defendants were engaged in a governmental
function, and thus were protected by sovereign immunity from
liability.
“Sovereign immunity ordinarily grants the state, its counties,
and its public officials, in their official capacity, an
unqualified and absolute immunity from law suits.”
Paquette, __
N.C. App. at __, 573 S.E.2d at 717
. Pursuant to N.C.G.S. §
153A-435 (2001), a county may elect to waive its sovereign immunity
by purchasing liability insurance. “However, 'waiver of sovereign
immunity may not be lightly inferred and State statutes waiving
this immunity, being in derogation of the sovereign right toimmunity, must be strictly construed.'”
Kennedy v. Haywood County,
__ N.C. App. __, __, __ S.E.2d __, __ (filed 17 June 2003) (quoting
Guthrie v. State Ports Authority, 307 N.C. 522, 537-538, 299 S.E.2d
618, 627 (1983)).
A complaint against a governmental entity that fails to allege
waiver of governmental immunity does not state a claim for relief,
and should be dismissed.
Vest v. Easley, 145 N.C. App. 70, 74, 549
S.E.2d 568, 573 (2001) (“It is well-established law that with no
allegation of waiver in a plaintiff's complaint, the plaintiff is
absolutely barred from suing the state and its public officials in
their official capacities in an action for negligence.”);
Gunter v.
Anders, 115 N.C. App. 331, 444 S.E.2d 685 (1994) (“'in the absence
of an allegation in the complaint in a tort action against
[government defendant that it] . . . has waived its immunity by
the procurement of liability insurance to cover such alleged
negligence or tort . . . such complaint does not state a cause of
action'”) (quoting
Fields v. Board of Education, 251 N.C. 699, 701,
111 S.E.2d 910, 912 (1960)),
disc. review denied, 339 N.C. 612, 454
S.E.2d 250 (1995).
Gunter was cited with approval in
Clark v.
Burke County, 117 N.C. App. 85, 88, 450 S.E.2d 747, 748 (1994). In
Clark, the plaintiff argued that “her failure to plead waiver of
immunity through the purchase of liability insurance [did] not
subject her claim to dismissal[.]” This Court disagreed, and held:
When suing a county or its officers, agents or
employees, the complainant must allege this
waiver in order to recover. In
Gunter v.
Anders, 115 N.C. App. 331, this Court upheld
the dismissal of plaintiff's action . . .
after plaintiff failed to allege that theBoard had purchased liability insurance and
waived its immunity. . . . We held that absent
an allegation to the effect that immunity has
been waived, the complaint fails to state a
cause of action.
Id.; see also Paquette, __ N.C. App. at __, 573 S.E.2d at 717 (“to
overcome a defense of governmental immunity, the complaint must
specifically allege a waiver of governmental immunity[; otherwise,]
the complaint fails to state a cause of action.”).
In the case
sub judice, plaintiff's complaint, which asserted
claims against all defendants in their official capacities, did not
allege that defendants had waived sovereign immunity. Therefore,
his complaint failed to state a cause of action, and should have
been dismissed. Accordingly, the trial court's order denying
defendants' motion for dismissal must be reversed.
In view of our resolution of this case, we are not required to
rule on defendants' motion to dismiss based on,
inter alia,
collateral estoppel,
res judicata, or plaintiff's failure to raise
compulsory counterclaims. We also note that the trial court
reserved its ruling on defendants' motion for sanctions under
N.C.G.S. § 1A-1, Rule 11 (2001), and that consideration of Rule 11
sanctions may be appropriate upon remand.
For the reasons discussed above, the trial court's denial of
defendants' motion to dismiss all of plaintiff's claims is
Reversed and Remanded.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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