Not overruled or negatively treated on appealinfoCoverage
North Carolina Court of AppealsAug 7, 2007
185 N.C. App. 159 (N.C. Ct. App. 2007)

No. 05-1389.

Filed August 7, 2007.

Caldwell County No. 04 CVS 795.

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-Appellant. 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.


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 pertinent allegations:

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, Plaintiff alleges 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 testing procedures.

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 sent McNeel 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 punitive damages.

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 privacy." 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 were protected 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."

Plaintiff has not filed an appeal from this order.

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 Appeals[.]" 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 Defendants.

Appeal was not taken from this order and, therefore, we do not address the propriety of Judge Boner's 25 July 2005 order in this opinion.


As a threshold matter, we address Defendants' motion to dismiss Plaintiff's appeal. In support of this motion, Defendants argue 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 transcript references.

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.


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, 324 N.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 or tort.

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 School Entity[.]"

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 proper.


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. Butler, 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. Halford, ___ 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 v. Hutto, 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 reh'g, 115 N.C. App. 331, 444 S.E.2d 685 (1994), disc. review denied, 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 personal deliberation, 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, we 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 with malice 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."

Dempsey, ___ N.C. App. at ___, 645 S.E.2d at 205 (quoting Dobson v. Harris, 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 that Defendants McNeel, Burns, or Reimer acted outside of their job responsibilities.

Plaintiff has also failed to establish that any Defendant acted maliciously or in a corrupt manner. As noted supra, to establish malice, Plaintiff must demonstrate that Defendants acted contrary to their duties while intending injury to Plaintiff. See Grad, supra. 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 collateral consequence.

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. See Greene, supra. 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 was proper. 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 (1975).

For all of the reasons stated, Judge Boner's order granting summary judgment in favor of Defendants is affirmed.


Judges WYNN and GEER concur.

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