Elam v Gould, 163 NC App 358 (03-511) 03/16/2004

Appeal by plaintiff from an order entered 20 September 2002 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 January 2004.

Robert E. McCarter for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew Little and Jacob H. Wellman, for defendant-appellee.

    HUNTER, Judge.

    Alan W. Elam (“plaintiff”) appeals the trial court's grant of Dr. Jonathan W. Gould's (“defendant”) motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the reasons stated herein, we affirm.
    At the outset, we note that defendant has filed a motion to dismiss plaintiff's appeal or, in the alternative, strike portions of the appendix to plaintiff's brief. The record on appeal was filed with this Court on 22 April 2003. On 6 June 2003, plaintiff filed his brief which consisted of an appendix containing twenty- seven pages of affidavits and supporting documentation that were not included in the record. By attaching these additionalmaterials to his brief, plaintiff has “violated N.C.R. App. P. 9 and 28, by filing documents that were neither agreed on by the parties to be part of the record, nor submitted by [plaintiff] to this Court pursuant to a motion to amend the record.” Woodburn v. N.C. State Univ., 156 N.C. App. 549, 551, 577 S.E.2d 154, 156, disc. review denied, 357 N.C. 470, 584 S.E.2d 296 (2003). Plaintiff has further violated the appellate rules by filing a brief in this appeal (1) without properly formatted page numbers, (2) using an incorrect type size, and (3) without including a certification stating his brief complies with Rule 28(j). N.C.R. App. P. 28 and Appendices. Therefore, we grant defendant's motion to dismiss plaintiff's appeal. Nevertheless, we consider plaintiff's appeal as a petition for writ of certiorari in order to address the merits of his arguments.
    Plaintiff was formerly married to Nancy Carrol (“Carrol”), and two children were born from that union: Walter and Wingate. During the subsequent dissolution of their marriage in 1991, custody proceedings were initiated. As a result, Wingate was placed in plaintiff's custody, and Walter was placed in Carrol's custody.
    In 1999, plaintiff sought to obtain custody of Walter. The trial court appointed defendant “as the Court's Psychologist with whom Walter Elam may consult concerning any and all matters the child wishes to discuss pertaining to possible change of custody.” After consulting with Walter, defendant submitted a “Forensic Psychological Report” to the trial court which concluded thatplaintiff alienated Walter and did not respect the child. Defendant further concluded that a change in Walter's custody would negatively impact the child's well-being and his relationship with Carrol. The trial court used the report to aid in its determination that Walter should remain in his mother's custody.
    Based on defendant's report, plaintiff filed a complaint against defendant on 20 May 2002 alleging claims for negligence/malpractice, intentional infliction of emotional distress, unfair and deceptive trade practices, fraud, and breach of contract. Defendant answered and moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6). When the motion came on for hearing, the trial court refused to consider supporting documentation offered by plaintiff (which plaintiff later included in the appendix to his appellate brief). Defendant's motion was subsequently granted on 20 September 2002. Plaintiff appeals.
    By his assigned errors, plaintiff essentially questions the trial court's dismissal of his complaint pursuant to Rule 12(b)(6). In reviewing a Rule 12(b)(6) motion, a court must determine “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.” Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 300, 435 S.E.2d 537, 541 (1993) (citation omitted). The trial court may grant this motion if “there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarilydefeat the claim.” Garvin v. City of Fayetteville, 102 N.C. App. 121, 123, 401 S.E.2d 133, 135 (1991) (citation omitted). However, a claim should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Id.

Plaintiff assigns error to the trial court's refusal to consider supporting documentation he offered during the hearing on defendant's motion to dismiss. A court's consideration of matters outside the pleadings, such as plaintiff's supporting documentation, effectively converts a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56 (2003). Yet, a “trial court [i]s not required to convert the Rule 12 motion into one for summary judgment under Rule 56.” Privette v. University of North Carolina, 96 N.C. App. 124, 132, 385 S.E.2d 185, 189 (1989). Thus, it was well within the trial court's discretion not to consider plaintiff's supporting documentation.

II.

    Plaintiff further assigns error to the trial court's dismissal of his claims based on the doctrine of witness immunity. Our Supreme Court has held that parties dissatisfied with the outcome of trials cannot file subsequent lawsuits against witnesses because the possibility of such lawsuits might intimidate witnesses and prevent them from testifying. See Godette v. Gaskill, 151 N.C. 52, 65 S.E. 612 (1909); Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326(1984). Further, in a case analogous to the case sub judice, Sharp v. Miller, 121 N.C. App. 616, 468 S.E.2d 799 (1996), a plaintiff brought an action against defendants based on alleged irregularities in the defendants' expert testimony and in the reports that the defendants prepared to guide their testimony. The Sharp Court concluded:
        Defendants conducted their appraisals and other evaluations in preparation for providing expert witness testimony in the “due course of a judicial proceeding.” The appraisals and reports made by defendants here are absolutely privileged and cannot be made the basis of any cause of action alleged by plaintiff. Accordingly, we conclude that plaintiff's complaint was properly dismissed [by the trial court].

Id. at 617-18, 468 S.E.2d at 801 (citations omitted).
    Based on his expertise as a psychologist, defendant in the instant case was appointed by the court to consult with Walter. Defendant's consultation with the child and the subsequent report he prepared detailing his expert opinion as to Walter's custodial status were used in the “'due course of a judicial proceeding.'” Therefore, like the defendants' in Sharp, defendant is immune from any civil liability arising from his actions as a court appointed expert.
    In conclusion, having determined that the trial court properly dismissed plaintiff's complaint based on the doctrine of witness immunity, this Court need not address his remaining assigned errors.
    Affirmed.
    Judges McCULLOUGH and CALABRIA concur.    Report per Rule 30(e).

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