Cline v. James Bane Home Bldg., LLC

• Decision Date: 15 June 2021
• Docket Number: No. COA20-422,COA20-422
• Citation: 278 N.C.App. 12,862 S.E.2d 54
• Parties: Charles B. CLINE and wife, Danielle C. Cline, Plaintiffs, v. JAMES BANE HOME BUILDING, LLC ; James Bane, Individually; Curtis Hopper, in his individual capacity as an inspector for Gaston County Health Department; Gaston County, North Carolina; LaChelle Crosby and Home Buyers Marketing, II, Inc., Defendants.
• Court: North Carolina Court of Appeals

278 N.C.App. 12

862 S.E.2d 54

Charles B. CLINE and wife, Danielle C. Cline, Plaintiffs,

v.JAMES BANE HOME BUILDING, LLC ; James Bane, Individually; Curtis Hopper, in his individual capacity as an inspector for Gaston County Health Department; Gaston County, North Carolina; LaChelle Crosby and Home Buyers Marketing, II, Inc., Defendants.

No. COA20-422

Court of Appeals of North Carolina.

Filed June 15, 2021

Devore, Acton & Stafford, P.A., by Fred W. DeVore, III, Charlotte, and Brittany N. Conner, for plaintiffs-appellants.

The Law Office of Martha R. Thompson, Gastonia, by Martha Raymond Thompson, for defendants-appellees.

MURPHY, Judge.

¶ 1 Unless waived, a county and its employees acting in their official capacities are protected from tort actions under the doctrine of governmental immunity. Likewise, the doctrine of public official's immunity protects a public official, when sued in his or her individual capacity, from actions for mere negligence in the performance of their duties. However, this immunity does not exist for public employees.

¶ 2 Here, the trial court did not err in granting summary judgment in favor of Gaston County and Curtis Hopper, in his official capacity, based on governmental immunity. However, the trial court erred in granting summary judgment in favor of Curtis Hopper, in his individual capacity, based on public official's immunity since he is a public employee. We affirm in part the trial court's judgment insofar as its ruling is based on governmental immunity, but reverse in part the trial court's decision to grant summary judgment on the basis of public official's immunity.

BACKGROUND

¶ 3 On 12 February 2016, Plaintiffs-Appellants Charles and Danielle Cline ("the Clines") closed on a newly constructed home from non-appealing Defendant James Bane Home Building, LLC ("Bane Homes"). The Clines’ home is located in Gaston County and is serviced by a septic system. Curtis Hopper ("Hopper"), a Gaston County Environmental Health Administrator, had previously approved a septic system permit classified as "provisionally suitable."¹ Within a few months of moving into the home, the Clines started to observe raw sewage bubbling in the yard and running down the driveway. To determine the source and cause of the raw sewage, the Clines hired an expert who opined that the septic system, as constructed, was undersized and insufficient for the size of the home.

¶ 4 The Clines sued Bane Homes and James Bane in his individual capacity for breach of contract and breach of implied warranty of habitability; Bane Homes for rescission; James Bane in his individual capacity for negligence; Hopper, in his individual capacity and official capacity, and Gaston County for negligence; LaChelle Crosby, the real estate agent who marketed the home, for negligence and misrepresentation; and LaChelle Crosby and Home Buyers Marketing, II, Inc. for unfair and deceptive trade practices.² Following discovery, Appellees filed a motion for summary judgment, arguing they were entitled to governmental immunity and public official's immunity.³ In its order filed 19 March 2020 ("Order"), the trial court granted Appellees’ motion for summary judgment, ordering "Defendants Gaston County and Curtis Hopper are entitled to judgment as a matter of law on the bases of governmental immunity and public official[’]s immunity." The Clines timely appealed the Order. Bane Homes, James Bane, LaChelle Crosby, and Home Buyers Marketing, II, Inc. remain Defendants in the case and did not appeal the Order.

ANALYSIS

¶ 5 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c) (2019). When considering a summary judgment motion, "all inferences of fact ... must be drawn against the movant and in favor of the party opposing the motion." Caldwell v. Deese , 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).

¶ 6 We review a trial court's order granting summary judgment de novo. See Builders Mut. Ins. Co. v. N. Main Constr. Ltd. , 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). "Under a de novo review, [we] consider[ ] the matter anew and freely substitute[ ] [our] own judgment" for that of the lower tribunal. In re Greens of Pine Glen Ltd. , 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). "The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim ... would be barred by an affirmative defense ...." Dobson v. Harris , 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).

A. Jurisdiction

1. Subject Matter Jurisdiction

¶ 7 Hopper argues we do not have subject matter jurisdiction over the claims against him, in either capacity, because subject matter jurisdiction over his alleged acts of negligence is vested exclusively in the Industrial Commission pursuant to the State Tort Claims Act, N.C.G.S. Chapter 143, Article 31. We disagree.

¶ 8 In Meyer v. Walls , our Supreme Court decided "whether jurisdiction for [a] suit against [Buncombe County Department of Social Services lied] before the Industrial Commission pursuant to the Tort Claims Act or before the Superior Court as originally filed by [the] plaintiff." Meyer v. Walls , 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997). Our Supreme Court held "the Tort Claims Act applies only to actions against state departments, institutions, and agencies and does not apply to claims against officers, employees, involuntary servants, and agents of the State." Id. at 107-08, 489 S.E.2d at 885-86. Our Supreme Court also explicitly overruled Robinette v. Barriger , which held "Alexander County Health Department is a state agency, rather than a county agency, and that because the Industrial Commission has exclusive jurisdiction of negligence actions against the State, the trial court did not err in granting summary judgment for the county based on a lack of subject matter jurisdiction." Id. at 107, 489 S.E.2d at 886 (citing Robinette v. Barriger , 116 N.C. App. 197, 447 S.E.2d 498 (1994) ). Our Supreme Court ultimately concluded "the Tort Claims Act does not apply to the claim against Buncombe County [Department of Social Services]."

Id. at 107-08, 489 S.E.2d at 885-86. We similarly hold Gaston County's health department is not a state agency or institution.

¶ 9 Here, Hopper was acting as an agent for Gaston County's health department, which is not a state department, or institution, but rather a county agency. The Industrial Commission does not have exclusive jurisdiction over his alleged acts of negligence, and both the trial court and this Court have subject matter jurisdiction.

2. Appellate Jurisdiction

¶ 10 Appellees argue this appeal "should be dismissed as an improper interlocutory appeal as there are insufficient grounds for appellate review." We disagree.

¶ 11 "An interlocutory order is one made during the pendency of an action, which 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. City of Durham , 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). In contrast, "[a] final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Id. at 361-62, 57 S.E.2d at 381. "[T]he entry of summary judgment for fewer than all defendants is not a final judgment[,]" but rather an interlocutory judgment. Long v. Giles , 123 N.C. App. 150, 152, 472 S.E.2d 374, 375 (1996). Although an interlocutory order is ordinarily not immediately appealable, an interlocutory order may be immediately appealed if it affects a substantial right. See N.C.G.S. § 1-277(a) (2019) ; N.C.G.S. § 7A-27(b)(3)(a) (2019).

¶ 12 Here, the Order disposed of only the claims against Gaston County and Hopper, and the remaining claims include: breach of contract and breach of implied warranty of habitability against Bane Homes and James Bane in his individual capacity; rescission against Bane Homes; negligence against James Bane in his individual capacity; negligence and misrepresentation against LaChelle Crosby; and unfair and deceptive trade practices against LaChelle Crosby and Home Buyers Marketing, II, Inc. As the Clines’ various claims against the other Defendants have not been resolved and further action by the trial court is required "in order to settle and determine the entire controversy[,]" the Clines’ appeal from the Order is an appeal from "[a]n interlocutory order ..., which does not dispose of the case[.]" Veazey , 231 N.C. at 362, 57 S.E.2d at 381. The Order must affect a substantial right in order for us to have proper appellate jurisdiction.

¶ 13 The Clines argue the Order affects a substantial right and is immediately appealable because

[a] litigant appealing the denial of a sovereign^{[4 ]} immunity defense need only show that they raised the issue below and that the trial court rejected it in order to establish that the challenged order affects [a] substantial right. [The trial court judge] ruled against [the Clines] exclusively on the issue of "governmental immunity and public official[’s] immunity." Thus, this immediate appeal of governmental immunity is approved by statute and this Court. Applying the Court's logic in [ Greene v. Barrick , 198 N.C. App. 647, 680 S.E.2d 727 (2009) ] ..., [the Clines] need not further explain why, when on the face of [the trial judge's] ruling a substantial right is affected. So long as the issue involves sovereign immunity, an immediate appeal is properly before this Court.

In Greene , we decided an interlocutory order granting summary judgment based on the defense of sovereign immunity was properly before us:

This Court has held that "when the moving party claims sovereign, absolute or qualified immunity, the denial of a motion for summary

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