Opinion
No. COA02-475
Filed 15 July 2003 This case not for publication
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.
Guilford County No. 01 CVS 10233.
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 processing salvage 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 res judicata 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 an on appealable 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, 544 S.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 to immunity, 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 the Board 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).