Block v. County of Person, No. COA99-1306.

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1306.
• Citation: 141 NC App. 273,540 S.E.2d 415
• Court: North Carolina Court of Appeals
• Parties: Raymond H. BLOCK and Dorothy M. Block, Plaintiffs, v. COUNTY OF PERSON; Person County Health Department; Thomas D. Bridges, Individually and in his official capacity as Director of the Person County Health Department; Marc Kolman, in his official capacity as Director of the Person County Health Department; Connie Pixley, Individually and in her official capacity as Environmental Health Supervisor with the Person County Health Department; Will Dunn, Individually and in his official capacity as Environmental Health Supervisor with the Person County Health Department; Randall Barnett, Individually and in his official capacity as Environmental Health Specialist with the Person County Health Department, Defendants.

540 S.E.2d 415

141 NC App. 273

Raymond H. BLOCK and Dorothy M. Block, Plaintiffs, v. COUNTY OF PERSON; Person County Health Department; Thomas D. Bridges, Individually and in his official capacity as Director of the Person County Health Department; Marc Kolman, in his official capacity as Director of the Person County Health Department; Connie Pixley, Individually and in her official capacity as Environmental Health Supervisor with the Person County Health Department; Will Dunn, Individually and in his official capacity as Environmental Health Supervisor with the Person County Health Department; Randall Barnett, Individually and in his official capacity as Environmental Health Specialist with the Person County Health Department, Defendants.

No. COA99-1306.

Court of Appeals of North Carolina.

December 29, 2000.

Alan S. Hicks, P.A., by Alan S. Hicks, Roxboro, for plaintiff-appellees.

Faison & Gillespie, by Reginald B. Gillespie, Jr., Durham, for defendant-appellants.

EDMUNDS, Judge.

Defendants appeal from an order denying their motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. We affirm.

Because this appeal is based on defendants' motion to dismiss, we treat plaintiffs' factual allegations as true. See Lovelace v. City of Shelby, 351 N.C. 458, 526 S.E.2d 652 (2000)

. According to these allegations, on 16 January 1995, plaintiffs Raymond and Dorothy Block purchased a 1.37 acre residential building lot in Person County, North Carolina. The lot had been approved for installation of a conventional septic system on 4 August 1994 by defendant Randall Barnett (Barnett), an Environmental Health Specialist with defendant Person County Health Department (the Health Department). Plaintiffs thereafter constructed a residence on the property. The construction included a conventional septic system in accordance with the requirements of the permit, and on 29 February 1996, Barnett approved the septic system.

After occupying the residence for approximately one year, plaintiffs observed wastewater effluent surfacing on the property in the area of the septic system's drain field. Barnett inspected the area and recommended that plaintiffs spread additional dirt in the drain field area to remedy the problem. Plaintiffs also contacted defendant Connie Pixley (Pixley), an Environmental Health Supervisor for the Health Department, who visited the property along with soil scientist Fred Smith (Smith) of the North Carolina Department of Environmental and Natural Resources. Although test pits were dug both on and off plaintiffs' property, no suitable soil could be found for a conventional septic system. As such, Pixley and Smith advised plaintiffs to consult a private soil scientist.

On 24 September 1997, the Health Department issued a wastewater violation notice to plaintiffs, giving them thirty days to remedy the noncompliant septic system; in addition, any repairs had to be approved by the Health Department. Accordingly, in October 1997, plaintiffs consulted soil scientist Neal Floyd (Floyd) who recommended a new low pressure pipe system. Floyd forwarded a preliminary design of the new system to the Health Department where defendant Will Dunn (Dunn), who had replaced Pixley as Environmental Health Supervisor with the Health Department, preliminarily approved the design, subject to receipt of a more detailed description. Dunn advised plaintiffs that the new system would be constructed without cost to them. In April 1998, Jimmy Lewis Contracting, Inc. presented to the Health Department an estimate of $9,180 to construct the new system. Plaintiffs obtained a second estimate of $8,805 from Carrington Brothers, Inc. after Dunn advised that the initial estimate was too high. At this time, Smith and defendant Thomas Bridges (Bridges), then Director of the Health Department, advised plaintiffs to hire an attorney, which led plaintiffs to conclude that defendant Person County (Person County) would not pay for the new system after all. Plaintiffs purchased an additional .33 acre of land in June 1998 to be used as a future repair area. The new septic system was constructed by Carrington Brothers, Inc. in July 1998 at plaintiffs' expense and was approved by Dunn on 17 July 1998.

Plaintiffs filed suit on 29 March 1999 against defendants Person County; the Health Department; Bridges, individually and in his official capacity as Director of the Health Department;¹ Marc Kolman, in his official capacity as Director of the Health Department (Bridges and Kolman were directors of the Health Department at different times); Pixley, individually and in her official capacity as Environmental Health Supervisor with the Health Department; Dunn, individually and in his official capacity as Environmental Health Supervisor with the Health Department; and Barnett, individually and in his official capacity as Environmental Health Specialist with the Health Department. Plaintiffs asserted claims for negligence against Barnett, negligent misrepresentation against Dunn, negligent supervision and retention against Pixley and Bridges, and vicarious liability against Person County, the Health Department, Bridges, and Kolman pursuant to the theory of respondeat superior. On or about 3 May 1999, defendants filed a motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (1999). The motion was granted on 23 July 1999 as to defendant Bridges in his individual capacity and defendant Dunn in his individual and official capacities. The motion was denied as to all other defendants, who now appeal.

Preliminarily, we note that in general "a denial of a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) [ ], is an interlocutory order from which no appeal may be taken immediately." Bardolph v. Arnold, 112 N.C.App. 190, 192, 435 S.E.2d 109, 112 (1993) (citation omitted). The rationale behind this rule is that "no final judgment is involved in such a denial and the movant is not deprived of any substantial right that cannot be protected by a timely appeal from a final judgment which resolves the controversy on its merits." Flaherty v. Hunt, 82 N.C.App. 112, 113, 345 S.E.2d 426, 427 (1986) (citation omitted). However, this Court has reviewed an interlocutory appeal when the case involves a legal issue of public importance or where the issue presented would expedite the administration of justice. See id. at 113-14, 345 S.E.2d at 427; Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975). Additionally, this Court has held that "orders denying dispositive motions grounded on the defense of governmental immunity are immediately reviewable as affecting a substantial right." Hedrick v. Rains, 121 N.C.App. 466, 468, 466 S.E.2d 281, 283,aff'd,344 N.C. 729, 477 S.E.2d 171 (1996) (citations omitted). This exception has been applied in cases where a defendant has asserted governmental immunity from suit through the public duty doctrine. See id.; Derwort v. Polk County, 129 N.C.App. 789, 501 S.E.2d 379 (1998)

. The reason for the exception "stems from the nature of the immunity defense." Clark v. Red Bird Cab Co., 114 N.C.App. 400, 403, 442 S.E.2d 75, 77 (1994). "A valid claim of immunity is more than a defense in a lawsuit; it is in essence immunity from suit. Were the case to be erroneously permitted to proceed to trial, immunity would be effectively lost." Slade v. Vernon, 110 N.C.App. 422, 425, 429 S.E.2d 744, 746 (1993) (citation omitted).

Accordingly, we will address defendants' second and third assignments of error, which pertain to qualified immunity and the public duty doctrine. In the interest of judicial economy, we also will address defendants' first assignment of error, which relates to the sufficiency of the complaint. See Houpe v. City of Statesville, 128 N.C.App. 334, 340, 497 S.E.2d 82, 87 (1998)

(in case where court considered interlocutory appeal based on defense of governmental immunity, "where it would be in the interests of judicial economy to do so ... we will in our discretion address defendants' alternative arguments").

On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is "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." Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987) (citation omitted). The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief. See Dixon v. Stuart, 85 N.C.App. 338, 354 S.E.2d 757 (1987)

.

I.

Defendants first argue that the trial court erred in failing to dismiss plaintiffs' claims brought against defendants Barnett, Pixley, and Kolman in their individual capacities, contending that the complaint only stated a claim against these defendants in their official capacities. Our Supreme Court previously has analyzed the distinction between official and individual capacity claims.

The crucial question for determining whether a defendant is sued in an individual or official capacity is the nature of the relief sought, not the nature of the act or omission alleged. If the plaintiff seeks an injunction requiring the defendant to take an action involving the exercise of a governmental power, the defendant is named in an official capacity. If money damages are sought, the court must ascertain whether the complaint indicates that the damages are sought from the government or from the pocket of the individual defendant. If the former, it is an official-capacity claim; if the latter, it is an individual-capacity claim; and if it is both, then the claims proceed in both capacities.

Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (...