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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 August 2007
DR. JANICE JETTON,
No. 04 CVS 795
CALDWELL COUNTY BOARD OF
EDUCATION, DR. TOM MCNEEL,
individually and in his
DR. CARYL BURNS, individually
and in her representative
capacity, JOHN REIMER,
individually and in his
CRYSTAL WILLIAMS, individually
and in her representative
Appeal by Plaintiff from judgment entered 1 April 2005 by
Judge Richard D. Boner in Caldwell County Superior Court. Heard in
the Court of Appeals 16 May 2006.
C. Gary Triggs, P.A., by C. Gary Triggs, for Plaintiff-
Womble Carlyle Sandridge & Rice, PLLC, by Allan R. Gitter and
Bradley R. Johnson, and Groome, Tuttle, Pike & Blair, by
Edward H. Blair, Jr., for Defendants-Appellees.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff appeals from an order entered 1 April 2005 by the
Honorable Richard D. Boner in Caldwell County Superior Court
granting summary judgment in favor of Defendants Dr. Tom McNeel(McNeel), Dr. Caryl Burns (Burns), John Reimer (Reimer), and
Crystal Williams (Williams), in their individual and
representative capacities. At all times relevant to this case,
McNeel was the Superintendent of Caldwell County Schools, Burns was
the principal of South Caldwell High School (the high school),
Reimer was an assistant principal at the high school, and Williams
was an administrative assistant at the high school. In a verified
complaint filed 11 June 2004, Plaintiff made the following
Plaintiff was employed by the Caldwell County Board of
Education (CCBE) as a mathematics teacher and worked at the high
school for twenty-six years. In 1999, Plaintiff became an
assistant principal at the high school and, on 30 May 2002, she and
CCBE entered into a contract for Plaintiff to continue her
employment as a school administrator. Plaintiff alleges that
before signing the 30 May 2002 contract, she was assured by CCBE's
agents that during the duration of her contract, Plaintiff would
work as a school administrator.
During her employment as an assistant principal, Plaintiff
worked to have a positive relationship with Principal Burns.
However, Plaintiff contends that at times Burns refused to speak to
her, slammed doors in her face, refused a personal leave request,
required her to work additional hours, systematically excluded her
from administrative meetings, the decision-making process, and
social events, and treated her differently than male employees,
especially assistant principal Reimer. Additionally, Plaintiffalleges that Burns told faculty and staff members of the high
school that Plaintiff had broken into the high school and stolen
important documents and files. With regard to Reimer, Plaintiff
asserts that during his tenure at the high school, Reimer
interfered with Plaintiff's assigned duties, told Plaintiff that
she should not have any communication with the school counselors,
and angered the staff when he caused a conflict with student
At the end of the 2002-2003 school year, after Burns announced
that she was being transferred to the county office of the Caldwell
County Schools, Plaintiff contends that Williams verbally attacked
her, telling her that Plaintiff was the one who should be
transferred and calling Plaintiff a bald-faced liar. Plaintiff
claims that soon after this confrontation, Williams told Burns that
she was taking [Plaintiff] to the superintendent and that she was
going to get her fired. Williams then met with McNeel.
On or about 2 June 2003, Plaintiff was reassigned to Caldwell
County Schools as a teacher for the 2003-2004 school year. No
reason was given for the demotion. Plaintiff contends that
Superintendent McNeel was openly hostile and unprofessional when
she met with him to discuss her demotion. As a result of the
meeting, Plaintiff believed she had three options: she could
retire, return to teaching, or be terminated for insubordination.
After meeting with McNeel, Plaintiff submitted an application for
retirement effective 1 July 2003. On 25 June 2003, Plaintiff sentMcNeel a letter requesting that he reinstate her as an assistant
principal at the high school. This request was denied.
Based on the foregoing allegations, Plaintiff's complaint
asserted causes of action for (1) breach of contract (as to
Defendant CCBE), (2) tortious interference with contract (as to
Defendants McNeel, Burns, Reimer, and Williams in their individual
capacities), (3) defamation of character (as to Defendants Burns
and Williams), (4) civil conspiracy (as to Defendants McNeel,
Burns, Reimer, and Williams), (5) intentional and negligent
infliction of emotional distress (as to all Defendants), and (6)
tortious intrusion of privacy. She sought compensatory and
By order entered 7 September 2004, the Honorable Robert C.
Ervin dismissed with prejudice the claims of tortious interference
with contract, civil conspiracy, and tortious intrusion of
(See footnote 1)
On 24 January 2005, Defendants McNeel, Burns, Reimer,
and Williams filed motions for summary judgment on all claims
remaining against them. On 1 April 2005, Judge Boner granted the
motion of each Defendant, ruling that Defendants McNeel, Burns, and
Reimer were protected against suits brought against them in their
'individual capacity' on the grounds of public official immunity
because there is no genuine issue of material fact that [each] is
a public official whose conduct . . . was neither corrupt,
malicious, nor outside the scope of their duties. Judge Boner
also ruled that Defendants McNeel, Burns, Reimer, and Williams wereprotected from claims against them in their 'official' capacity on
the grounds of governmental immunity in that the Board's insurance
policy specifically excludes claims for slander, emotional
distress, claims of one insured against another, and punitive
damages[.] Finally, Judge Boner entered summary judgment for the
additional reason that plaintiff's forecast of the evidence failed
to show any justiciable issue of fact or law for her claims against
[McNeel, Burns, Reimer, or Williams] in any capacity.
On 8 April 2005, Plaintiff filed notice of appeal to this
Court from Judge Boner's 1 April 2005 order. Defendants then moved
the trial court to dismiss the appeal as arising from an
interlocutory order not affecting a substantial right. By order
dated 25 July 2005, Judge Boner ruled that his 1 April 2005 order
was based in part on governmental and public official immunities
barring plaintiff's tort claims against the individual defendants,
and is therefore immediately appealable to the Court of
(See footnote 2)
Thereafter, by motion filed 8 February 2006,
Defendants moved this Court to dismiss Plaintiff's appeal for
various appellate rule violations. For the reasons which follow,
we affirm Judge Boner's order granting summary judgment in favor of
APPELLATE RULES VIOLATIONS
As a threshold matter, we address Defendants' motion to
dismiss Plaintiff's appeal. In support of this motion, Defendantsargue that Plaintiff failed to preserve issues for appellate review
through proper assignments of error, and thus, violated Rule 10 of
the North Carolina Rules of Appellate Procedure.
Rule 10 provides in pertinent part that the scope of review
on appeal is confined to a consideration of those assignments of
error set out in the record on appeal[.] N.C. R. App. P. 10(a).
This rule further provides that
[e]ach assignment of error shall, so far as
practicable, be confined to a single issue of
law; and shall state plainly, concisely and
without argumentation the legal basis upon
which error is assigned. An assignment of
error is sufficient if it directs the
attention of the appellate court to the
particular error about which the question is
made, with clear and specific record or
N.C. R. App. P. 10(c)(1). Rule 10 is intended to identify for the
appellee's benefit all the errors possibly to be urged on
appeal . . . so that the appellee may properly assess the
sufficiency of the proposed record on appeal to protect his
position. Rogers v. Colpitts, 129 N.C. App. 421, 422, 499 S.E.2d
789, 790 (1998) (citation omitted). Additionally, Rule 10 is
intended to relieve some of the burden on the judiciary by allowing
appellate courts to determine the legal questions involved in the
case fairly and expeditiously[,] without having to make a voyage
of discovery through the record. Id. In reviewing a trial
court's grant of summary judgment, however, the purpose of the Rule
10 requirements is no longer present. Addressing this point, our
Supreme Court has held: On appeal, review of summary judgment is
necessarily limited to whether the trial
court's conclusions as to these questions of
law were correct ones. It would appear, then,
that notice of appeal adequately apprises the
opposing party and the appellate court of the
limited issues to be reviewed. Exceptions and
assignments of error add nothing.
Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987)
(internal citations omitted) (emphasis added); see also Nelson v.
Hartford Underwriters Ins. Co., 177 N.C. App. 595, 603, 630 S.E.2d
221, 227 (2006) (This Court is required to follow the decisions of
our Supreme Court. . . . Accordingly, we follow Ellis[.]); but
see Shook v. County of Buncombe, 125 N.C. App. 284, 285, 480 S.E.2d
706, 707 (1997) (In our view, Ellis is no longer the law.). We
conclude that because Plaintiff is appealing from a summary
judgment order, her appeal is not subject to dismissal, under Ellis
and Nelson, on grounds that her assignments of error did not
comport with the requirements of Rule 10. Accordingly, Defendants'
motion to dismiss Plaintiff's appeal is denied.
STANDARD OF REVIEW
Summary judgment is proper where there is no genuine disputed
factual issue and the party is entitled to judgment as a matter of
law[.] Volkman v. DP Assocs., 48 N.C. App. 155, 157, 268 S.E.2d
265, 267 (1980) (citing Kessing v. Nat'l Mortgage Co., 278 N.C.
523, 180 S.E.2d 823 (1971)). In a summary judgment proceeding, the
movant has the burden of showing that, when the evidence is viewed
in the light most favorable to the non-movant, summary judgment in
favor of the movant is appropriate. Leake v. Sunbelt Ltd. of
Raleigh, 93 N.C. App. 199, 377 S.E.2d 285, disc. review denied, 324N.C. 578, 381 S.E.2d 774 (1989). This burden may be met by showing
(1) the non-existence of an essential element of the non-movant's
case; or (2) the non-movant cannot produce evidence to support an
essential element of its claim; or (3) the non-movant cannot
overcome an affirmative defense that would bar the claim. Moore v.
City of Creedmoor, 120 N.C. App. 27, 460 S.E.2d 899 (1995), aff'd
in part, rev'd in part on other grounds, 345 N.C. 356, 481 S.E.2d
14 (1997). Once the party seeking summary judgment makes the
required showing, the burden shifts to the nonmoving party to
produce a forecast of evidence demonstrating specific facts, as
opposed to allegations, showing that he can at least establish a
prima facie case at trial. Gaunt v. Pittaway, 139 N.C. App. 778,
784-85, 534 S.E.2d 660, 664, appeal dismissed and disc. review
denied, 353 N.C. 262, 546 S.E.2d 401 (2000), cert. denied, 353 N.C.
371, 547 S.E.2d 810, cert. denied, 534 U.S. 950, 151 L. Ed. 2d 261
(2001). On appeal, our review of an order granting summary
judgment is de novo. Litvak v. Smith, ___ N.C. App. ___, 636
S.E.2d 327 (2006).
In his 1 April 2005 order, Judge Boner ruled that summary
judgment was appropriate for all claims asserted against Defendants
McNeel, Burns, Reimer, and Williams in their official capacities
because each Defendant could successfully assert governmental
immunity. We agree.
Governmental immunity protects the governmental entity and
its officers or employees sued in their 'official capacity.'Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279
(1993) (quoting Whitaker v. Clark, 109 N.C. App. 379, 382, 427
S.E.2d 142, 144, disc. review and cert. denied, 333 N.C. 795, 431
S.E.2d 31 (1993)), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994).
A county or city board of education is a governmental agency and
its employees are not ordinarily liable in a tort action unless the
board has waived its sovereign immunity. Herring v. Liner, 163
N.C. App. 534, 537, 594 S.E.2d 117, 119 (2004) (citing Ripellino v.
N.C. Sch. Boards Ass'n, 158 N.C. App. 423, 581 S.E.2d 88 (2003),
cert. denied, 358 N.C. 156, 592 S.E.2d 695 (2004)). Section 115C-
42 of our General Statutes allows a local board of education to
waive governmental immunity by securing liability insurance to
cover claims for
damage by reason of death or injury to person
or property caused by the negligence or tort
of any agent or employee of such board of
education when acting within the scope of his
authority or within the course of his
employment. Such immunity shall be deemed to
have been waived by the act of obtaining such
insurance, but such immunity is waived only to
the extent that said board of education is
indemnified by insurance for such negligence
N.C. Gen. Stat. § 115C-42 (2001). The act of purchasing liability
insurance is not sufficient to completely waive sovereign immunity:
Immunity is only waived to the extent that the liability insurance
policy actually indemnifies the board of education or its
employees. Herring, 163 N.C. App. at 537, 594 S.E.2d at 120.
The record on appeal includes the liability insurance policy
purchased by CCBE. This policy contains specific exclusions forclaims arising out of defamation of character and emotional
distress. Furthermore, the policy specifically excludes any claim
brought by one Insured against another Insured[.] CCBE's
insurance policy defines an Insured to include employees of the
The pleadings, affidavits, and deposition testimony considered
by the trial court on Defendants' motions for summary judgment
establish that Plaintiff's causes of action against McNeel, Burns,
Reimer, and Williams in their official capacities constitute claims
for defamation and emotional distress, and are claims brought by
one Insured against another Insured[.] As such, Plaintiff's
causes of action against McNeel, Burns, Reimer, and Williams in
their official capacities are excluded by the plain language of
CCBE's insurance policy. Therefore, governmental immunity has not
been waived. See Herring, 163 N.C. App. at 537, 594 S.E.2d at 120
(holding that [i]mmunity is only waived to the extent that the
liability insurance policy actually indemnifies the board of
education or its employees). Accordingly, summary judgment in
favor of the individual Defendants in their official capacities was
PUBLIC OFFICIAL IMMUNITY
In his order granting summary judgment in favor of Defendants
McNeel, Burns, and Reimer in their individual capacities, Judge
Boner ruled that each Defendant could successfully assert public
official immunity. Again, we agree. When evaluating the affirmative defense of public official
immunity, our courts distinguish between public employees and
public officers in determining negligence liability. Hare v.
, 99 N.C. App. 693, 699-700, 394 S.E.2d 231, 236 (citations
omitted), disc. review denied
, 327 N.C. 634, 399 S.E.2d 121 (1990).
A public official is someone whose position is created by 'the
constitution or statutes of the sovereignty' and who executes some
portion of the sovereign power and discretion. Dempsey v.
, ___ N.C. App. ___, ___, 645 S.E.2d 201, 204 (2007)
(quoting State v. Hord
, 264 N.C. 149, 155, 141 S.E.2d 241, 245
(1965)). Discretionary acts are those requiring personal
deliberation, decision[,] and judgment . . . . Ministerial duties,
on the other hand, are absolute and involve merely the execution of
a specific duty arising from fixed and designated facts. Isenhour
, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999) (quotation
marks and citations omitted).
In Gunter v. Anders
, 114 N.C. App. 61, 441 S.E.2d 167, on
, 115 N.C. App. 331, 444 S.E.2d 685 (1994), disc. review
, 339 N.C. 612, 454 S.E.2d 250 (1995),
this Court held that
the superintendent of a school district and the school principal
could assert public official immunity. Additionally, in Farrell v.
Transylvania County. Bd. of Educ.
, 175 N.C. App. 689, 696, 625
S.E.2d 128, 134 (2006), this Court held that a school
administrator, other than the principal, could successfully raise
the defense of public official immunity because her job
responsibilities included discretionary acts involving personaldeliberation, decision, and judgment in a position created by the
statutes of our State[.]
Based on Gunter
, it is clear that
Defendant McNeel, as the Superintendent of Caldwell County Schools,
and Defendant Burns, as the principal of the high school, each may
claim public official immunity. Furthermore, based on Farrell
hold that Defendant Reimer, as an assistant principal, may also
assert public official immunity because his employment
responsibilities included discretionary acts involving personal
deliberation, decision, and judgment in a position created by the
statutes of our State[.] See id.
; see also
N.C. Gen. Stat. § 115C-
287.1(a)(3) (2001) (defining a school administrator as a Principal,
Assistant Principal, Supervisor, or Director).
Although generally shielded from liability, [a] public
official, engaged in the performance of governmental duties
involving the exercise of discretion, may be held personally liable
if it is alleged and proved that his act, or failure to act, was
corrupt or malicious, or that he acted outside of and beyond the
scope of his authority. Golden Rule Ins. Co. v. Long
, 113 N.C.
App. 187, 194, 439 S.E.2d 599, 603 (1993). As a general rule it
is presumed that a public official in the performance of his
official duties 'acts fairly, impartially, and in good faith and in
the exercise of sound judgment or discretion, for the purpose of
promoting the public good and protecting the public interest.'
Greene v. Town of Valdese
, 306 N.C. 79, 82, 291 S.E.2d 630, 632
(1982) (quoting Huntley v. Potter
, 255 N.C. 619, 122 S.E.2d 681
(1961)). Our Supreme Court has held that [a] defendant acts withmalice when he wantonly does that which a man of reasonable
intelligence would know to be contrary to his duty and which he
intends to be prejudicial or injurious to another. Grad v. Kaasa
312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). An act is wanton if
it is done with a wicked purpose or with reckless indifference to
the rights of others. Id.
Evidence offered to meet or rebut the
presumption of good faith must be sufficient
by virtue of its reasonableness, not by mere
supposition. It must be factual, not
hypothetical; supported by fact, not by
surmise. If plaintiff's forecast of evidence
of malice is not sufficient to permit
reasonable minds to conclude that the . . .
presumed good faith was nonexistent, then
summary judgment for defendant is proper.
, ___ N.C. App. at ___, 645 S.E.2d at 205 (quoting Dobson v.
, 352 N.C. 77, 85, 530 S.E.2d 829, 836 (2000) (internal
quotation marks omitted)).
Here, by the pleadings, affidavits, and portions of the
deposition testimony submitted for our review, Plaintiff has failed
to establish that Defendants McNeel, Burns, or Reimer acted outside
the scope of their duties. On the contrary, the evidence
establishes that Plaintiff and Defendant Reimer only associated
inside the high school and their confrontations pertained to
internal staff communication and testing procedures. Furthermore,
any actions on the part of Defendants McNeel and Burns pertained to
Plaintiff's job responsibilities at the high school, the
maintenance of school records, and her continued employment with
CCBE. Accordingly, Plaintiff has failed to establish thatDefendants McNeel, Burns, or Reimer acted outside of their job
Plaintiff has also failed to establish that any Defendant
acted maliciously or in a corrupt manner. As noted supra
establish malice, Plaintiff must demonstrate that Defendants acted
contrary to their duties while intending injury to Plaintiff. See
. Here, all of Defendants' actions were directed toward
the completion of their duties for CCBE and were intended to
promote the smooth function of the school or school system.
Moreover, Plaintiff has failed to make any showing that Defendants
acted in a way intending to harm her. While Defendants may not
have always acted in a professional manner, or treated Plaintiff
with patience, respect, or kindness, there is no evidence that they
intended to hurt Plaintiff. Any alleged harm resulting to
Plaintiff from Defendants' allegedly improper conduct was simply a
Finally, Plaintiff has not established that Defendants'
actions were corrupt. To successfully establish corrupt action,
Plaintiff must show that Defendants' actions were in bad faith.
. Again, since the evidence shows that all of
Defendants' actions were directed at promoting the function of the
high school on a day-to-day basis or in managing the affairs of the
district as a whole, Plaintiff's bare assertions that Defendants
acted in bad faith are insufficient to survive a motion for summary
judgment. Accordingly, summary judgment in favor of Defendants
McNeel, Burns, and Reimer in their individual capacities wasproper. We note that Plaintiff cited no authority suggesting that
evidence of the type she presented is sufficient to defeat a motion
for summary judgment on the ground of public official immunity.
Because the affirmative defenses of governmental immunity and
public official immunity successfully defeat all of Plaintiff's
claims against the individual Defendants, we need not address
Plaintiff's forecast of evidence on her individual causes of
action. Plaintiff also contends that the summary judgment order is
improper because it fails to include findings of fact. It is,
however, well established that findings of fact are not necessary
on a motion for summary judgment[.] Hyde Ins. Agency, Inc. v.
Dixie Leasing Corp.
, 26 N.C. App. 138, 142, 215 S.E.2d 162, 165
For all of the reasons stated, Judge Boner's order granting
summary judgment in favor of Defendants is affirmed.
Judges WYNN and GEER concur.
Report per rule 30(e).
Plaintiff has not filed an appeal from this order.
Appeal was not taken from this order and, therefore, we do
not address the propriety of Judge Boner's 25 July 2005 order in
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