An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.



Filed: 3 February 2004


v .                         Lincoln County
                            No. 01 CVS 784
Individually and as a Member of

    Appeal by defendants from judgment entered 18 June 2002 by Judge Forrest D. Bridges in Lincoln County Superior Court. Heard in the Court of Appeals 10 September 2003 and opinion filed 4 November 2003. Beatenhead v. Lincoln County, __ N.C. App. __, __ S.E.2d __ (4 Nov. 2003) (No. COA02-1610). Defendants petitioned the Court of Appeals for rehearing, and this Court granted that petition 6 January 2004.

    Suzanne Beatenhead, plaintiff-appellee, pro se.

    Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L. Eatman, Jr. and W. James Flynn, for defendant-appellants.

    HUDSON, Judge.

    In 1997, plaintiff Suzanne Beatenhead worked for the Lincoln County school system as a cafeteria manager. In February of that year, defendants Lincoln County Board of Education and Martin Eaddy, a member of the board, contacted the Lincolnton Police Department about the results of an internal investigation intothefts from the school cafeteria. Based on defendants' report, police charged plaintiff with felony larceny by an employee, and arrested her. The prosecution began, but police ultimately dropped all charges against plaintiff on 25 May 1999.
    In June 2001, plaintiff filed a complaint against defendants alleging malicious prosecution, intentional infliction of emotional distress and negligent infliction of emotional distress. She contended that defendants' accusations against her were false, that the accusations were made for an improper purpose, and that they constituted extreme and outrageous conduct. Plaintiff also alleged that defendants' internal investigation was negligently conducted and that the emotional distress the resulting charges created was reasonably foreseeable.
    Defendants answered, denying plaintiff's allegations and asserting a number of affirmative defenses, including the statute of limitations and governmental immunity. Defendants also counterclaimed against plaintiff alleging conversion and breach of contract. On 5 March 2002, defendants moved for summary judgment on all of plaintiff's causes of action on the basis of governmental immunity. The trial court granted partial summary judgment for defendants on the negligent and intentional infliction of emotional distress claims because plaintiff filed her lawsuit more than three years after the claims arose. However, the court found that genuine issues of material fact remained regarding plaintiff's malicious prosecution claim, and that governmental immunity did not bar that action. Defendants appeal from the grant of partialsummary judgment. For the reasons discussed below, we affirm the denial of summary judgment to Martin Eaddy in his individual capacity, but reverse as to Mr. Eaddy in his official capacity and as to the Lincoln County Board of Education.
    “A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). The general prohibition on interlocutory appeals seeks “to prevent fragmented, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.” Lee v. Baxter, 147 N.C. App. 517, 519, 556 S.E.2d 36, 37 (2001) (internal citation omitted). However, interlocutory orders may be appealed when the denial of an appeal would affect a substantial right of an appellant. Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983); N.C. Gen. Stat. § 1-277 (2001).
    When an order “declines to recognize a claim of governmental immunity on the part of defendants, it is subject to immediate appeal on that issue, as a substantial right is affected.” Andrews v. Crump, 144 N.C. App. 68, 74, 547 S.E.2d 117, 122, disc. review denied, 354 N.C. 215, 553 S.E.2d 907 (2001). We permit interlocutory appeals in such 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.” Epps v. Duke University, 122 N.C. App. 198, 201, 468 S.E.2d 846, 849, denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (internal citations omitted). Thus, defendants' appeal, though interlocutory, is properly before this Court.
    Summary judgment is proper if there is “no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). The moving party bears the burden of showing that there is no triable issue of fact. Pembee Mfg. Corp. V. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). A defendant may show entitlement to summary judgment by “showing that the plaintiff cannot surmount an affirmative defense.” James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Here, defendants contend that plaintiff cannot surmount their assertion of governmental immunity.
    Governmental immunity protects municipalities from civil liability. “A local board of education is immune from suit and may not be liable in a tort action unless the Board has duly waived its governmental immunity.” Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C. App. 435, 437, 477 S.E.2d 179, 180 (1996). A local board of education waives its immunity by securing liability insurance, and such waivers may cover liability from any negligence or tort by employees acting within the scope of their employment. N.C. Gen. Stat. § 115C-42 (2001). The scope of such a waiver of immunity extends only as far as the limits of insurance indemnification. Id.     However, not all tortious actions by public officials are shielded by the doctrine of governmental immunity. “Despite public officials being shielded from liability in their official capacities, 'they remain personally liable for any actions which may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties.'” Beck v. City of Durham, 154 N.C. App. 221, 230, 573 S.E.2d 183, 190 (2002) (quoting Locus v. Fayetteville State University, 102 N.C. App. 522, 526, 402 S.E.2d 862, 865 (1991)). “Immunity of public officials to state law claims therefore involves a determination of the subjective state of mind of the governmental actor, i.e., whether his actions were corrupt or malicious.” Andrews, 144 N.C. App. at 76, 547 S.E.2d at 123. Mr. Eaddy, as a member of the school board, is a public official, and may be liable in his individual capacity for his actions if they fall outside and beyond the scope of his official duties.
    Plaintiff's claim against Mr. Eaddy is for malicious prosecution, a claim necessarily involving a factual inquiry into defendant's state of mind. Thus, the trial court properly denied the motion for summary judgment on plaintiff's malicious prosecution claim as to Mr. Eaddy. However, “[u]nless and until a school administrative unit has waived its immunity by procuring an applicable policy of liability insurance, it may not be held responsible under respondeat superior for the intentional torts of its employees.” Presnell v. Pell, 298 N.C. 715, 721 260 S.E.2d 611, 614 (1979). The Lincoln County Board of Education has notwaived its immunity, and thus, the court erred in failing to grant summary judgment to the remaining defendants.
    Affirmed as to defendant Eaddy and reversed as to the remaining defendants.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report as per Rule 30(e).

*** Converted from WordPerfect ***