Stallings v Daniels, (02-1154) 08/05/2003

Appeal by plaintiff from order entered 6 May 2002 by Judge Paul L. Jones in Superior Court, New Hanover County. Heard in the Court of Appeals 22 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General William McBlief, for defendants-appellees.

Eric C. Stallings, plaintiff-appellant, pro se.

    McGEE, Judge.

    Eric C. Stallings (plaintiff) filed a complaint against Dawn Daniels and Brenda A. Tucker (defendants) on 25 March 2002 seeking an order compelling the disclosure of public records. (R.p. 1). Plaintiff requested that the trial court order defendants to release a copy of the backup tape made during a hearing in a separate lawsuit filed by plaintiff (No. 01 CVS 4910, New Hanover County) that had been dismissed by Judge James R. Vosburgh. (T.p. 8). A hearing was held on 1 April 2002 and defendants argued that plaintiff's action should be dismissed for lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim. (T.p. 8). Plaintiff moved the trial court to entera temporary restraining order to prevent defendants from destroying the backup tape. (T.p. 4-5). The trial court entered an order on 6 May 2002 dismissing the case for lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim. The trial court also denied plaintiff's motion for a temporary restraining order. (R.p. 10). Plaintiff appeals.
    Plaintiff first argues the trial court erred in ruling that the trial court lacked personal jurisdiction over defendants. Defendants conceded this issue in their brief and we decline to address this argument.
    Plaintiff next argues the trial court erred in dismissing plaintiff's case for lack of subject matter jurisdiction. Plaintiff alleged in his complaint and stated at the hearing that his request for a copy of the backup tape made during a hearing in a separate lawsuit filed by plaintiff was denied by the clerk of court and the court reporter. N.C. Gen. Stat. § 132-9(a) (2001) states:
            Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts.

    Defendants argue that the trial court lacks subject matter jurisdiction because the backup tape stems from another proceeding where appellate review is pending. Defendants contend that JudgeVosburgh, the judge in the previous case, is responsible for settling the record on appeal and cannot be overruled by another superior court judge.
    Defendants are correct that "the judge from whose judgment, order, or other determination appeal was taken" settles the record on appeal. N.C.R. App. P. 11(c). Defendants are also correct in stating that one superior court judge may not "modify, overrule, or change the judgment of another Superior Court judge previously made in the same action." N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983). However, defendants have failed to cite any authority or otherwise show that the trial court lacks subject matter jurisdiction in the present case. There has been no order entered by Judge Vosburgh regarding the backup tape that could be overruled by an order in the present case. Additionally, plaintiff's present action only seeks a release of a copy of the backup tape for defendant's inspection and does not involve settling the record on appeal in the previous case.
    N.C.G.S. § 132-9(a) provides that the superior court has jurisdiction to hear a case and issue an order when any person has been denied access to public records and seeks an order compelling disclosure or copying. Plaintiff properly alleged sufficient facts to establish subject matter jurisdiction in this case. The trial court erred in dismissing plaintiff's claim for lack of subject matter jurisdiction.
    Plaintiff next argues that the trial court erred in dismissing his suit for failure to state a claim upon which relief can begranted. "The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient." State of Tennessee v. Environmental Management Comm., 78 N.C. App. 763, 765, 338 S.E.2d 781, 782 (1986). "A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim." Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Governor's Club Inc. v. Governor's Club Ltd. Part., 152 N.C. App. 240, 253, 567 S.E.2d 781, 790 (2002), aff'd, 357 N.C. 46, 577 S.E.2d 620 (2003).
            Persons requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. No request for copies of public records in a particular medium shall be denied on the grounds that the custodian has made or prefers to make the public records available in another medium. The public agency may assess different fees for different media as prescribed by law.

N.C. Gen. Stat. § 132-6.2(a) (2001). N.C. Gen. Stat. § 132-6(a) (2001) further provides:
            Every custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.

    A "public record" is defined as        all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.

N.C. Gen. Stat. § 132-1(a) (2001).
    The North Carolina General Assembly has established these procedures for the inspection and examination of public documents. Through these statutes, "'the legislature intended to provide that, as a general rule, the public would have liberal access to public records.'" News and Observer Publishing Co. v. Poole, 330 N.C. 465, 475, 412 S.E.2d 7, 13 (1992) (citing News & Observer v. State ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984)). As defined by statute, the backup tape of plaintiff's earlier court proceeding is a public record because it is a sound recording of public business conducted by a subdivision of North Carolina government. N.C.G.S. § 132-1(a). Accordingly, plaintiff has correctly stated a cause of action and defendants must permit plaintiff to examine and inspect the backup tape. N.C.G.S. § 132.6(a). Defendants also must provide a copy of the recording in the media requested by plaintiff, subject to defendants' capability of providing a copy of the record in the requested media. N.C.G.S.§ 132-6.2(a).
    As previously stated, any person who is denied access or copies of public records may file suit seeking an order compelling disclosure or copying. N.C.G.S. § 132.9(a). Plaintiff's complaint properly sought an order compelling disclosure and copying of the backup tape due to defendants' refusal to provide access to or copies of the tape. The trial court erred in dismissing plaintiff's claim for failure to state a claim upon which relief could be granted. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
    Plaintiff also argues the trial court erred in denying plaintiff's motion for a temporary restraining order. Plaintiff failed to develop this argument in his brief and cited no authority in support thereof. Accordingly, this assignment of error is dismissed. N.C.R. App. P. 28(b)(6).
    Having reversed and remanded the trial court's order dismissing plaintiff's claim for release of a copy of the backup tape, we do not address plaintiff's remaining arguments.
    Reversed and remanded in part.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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