Cryan v. Nat'l Council of Young Men's Christian Associations of the U.S., COA20-696

• Docket Nº: No. COA20-696
• Citation: 867 S.E.2d 354
• Case Date: November 16, 2021
• Court: Court of Appeal of North Carolina (US)

867 S.E.2d 354

Joseph CRYAN, Samuel Cryan, Kerry Helton, Thomas Hole, Rickey Huffman, Joseph Perez, Joshua Sizemore, Dustin Sprinkle, and Michael Taylor, Plaintiffs,
v.
NATIONAL COUNCIL OF YOUNG MEN'S CHRISTIAN ASSOCIATIONS OF the UNITED STATES of America ; Young Men's Christian Association of Northwest North Carolina d/b/a Kernersville Family YMCA and Michael Todd Pegram, Respondent.

No. COA20-696

Court of Appeals of North Carolina.

Filed November 16, 2021

Lanier Law Group, P.A., Durham, by Donald S. Higley, II, for Petitioner-Appellee.

Nelson Mullins Riley & Scarborough LLP, Winston-Salem, by Lorin J. Lapidus, for Respondent-Appellant.

GORE, Judge.

867 S.E.2d 356

¶ 1 The claims in the present matter arise from acts of sexual abuse by Defendant Pegram, while he was employed by the YMCA, on Plaintiffs, who were minors at the time of the abuse. The last act of sexual abuse by Pegram occurred approximately twenty years ago.

¶ 2 Based on Plaintiffs’ allegations, all claims became time-barred in 2015 under the then-applicable statute of limitations. The youngest Plaintiff turned 18 years of age in 2005. The longest limitations period for any of the claims was ten years. Accordingly, all claims in this action became time-barred by 2015.

¶ 3 Four years later, though, in 2019, our General Assembly enacted Section 1-17(e), which allows a person who was a victim of sexual abuse when (s)he was a minor to bring an action for claims "related to [the] sexual abuse" "within two years of the date of a criminal conviction" of the perpetrator of the sexual abuse. N.C. Gen. Stat. § 1-17(e) (2020). Here, the Complaint alleges that the perpetrator, Defendant Pegram, was convicted of various sex offenses. Defendant challenges the constitutionality of Section 1-17(e) which was enacted in 2019. And Plaintiffs commenced their previous time-barred claims in 2020, within two years of Pegram's conviction pursuant to Section 1-17(e).

I. Factual & Procedural Background

¶ 4 This is a case in which multiple victims allege they were sexually assaulted by Michael Todd Pegram ("Pegram") while he worked as an employee of Defendant-Appellant Young Men's Christian Association of Northwest North Carolina d/b/a Kernersville Family YMCA ("YMCA" or "Defendant"). In 2019, Pegram was convicted for those crimes. On 14 February 2020, Plaintiffs-Appellees Joseph Cryan, Samuel Cryan, Kerry Helton, Thomas Hole, Rickey Huffman, Joseph Perez, and Michael Taylor (collectively, "Plaintiffs") filed a complaint seeking compensatory and punitive damages from Defendant for assault, battery, negligent hiring retention and supervision of Pegram, negligent infliction of emotional distress, and intentional infliction of emotional distress.

¶ 5 On 1 June 2020, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on the basis that Plaintiffs’ claims are time barred because the North Carolina General Assembly's amendments to N.C. Gen. Stat. § 1-17(e) (2019) and N.C. Gen. Stat. § 1-52(5), (16) and (19) (2019) (collectively "2019 amendments") were in violation of the North Carolina Constitution. See SAFE Child Act, N.C. Session Law 2019-245, S.B. 199 (2019). N.C. Gen. Stat. § 1-17(e) states:

(e) Notwithstanding the provisions of subsections (a), (b), (c), and (d) of this section, a plaintiff may file a civil action within two years of the date of a criminal conviction for a related felony sexual offense against a defendant for claims related to sexual abuse suffered while the plaintiff was under 18 years of age.

N.C. Gen. Stat. § 1-17(e).

¶ 6 On 18 June 2020, Plaintiffs filed a motion pursuant to N.C. R. Civ. P. 42(b)(4) and N.C. Gen. Stat. § 1-267.1(a1) to transfer Defendant's motion to dismiss to the Wake County Superior Court for the appointment of a three-judge panel to determine the constitutionality of the amendments. N.C. Gen. Stat. § 1-267.1(a1) states:

(a1) Except as otherwise provided in subsection (a) of this section, any facial challenge to the validity of an act of the General Assembly shall be transferred pursuant to G.S. 1A-1, Rule 42(b)(4), to the Superior Court of Wake County and shall be heard and determined by a three-judge panel of the Superior Court of Wake County, organized as provided by subsection (b2) of this section.

867 S.E.2d 357

¶ 7 N.C. Gen. Stat. § 1-267.1(a1) (2019). N.C. R. Civ. P. 42(b)(4) further provides:

(b) Separate trials

...

(4) Pursuant to G.S. 1-267.1, any facial challenge to the validity of an act of the General Assembly , other than a challenge to plans apportioning or redistricting State legislative or congressional districts, shall be heard by a three-judge panel in the Superior Court of Wake County if a claimant raises such a challenge in the claimant's complaint or amended complaint in any court in this State, or if such a challenge is raised by the defendant in the defendant's answer, responsive pleading, or within 30 days of filing the defendant's answer or responsive pleading. In that event, the court shall, on its own motion, transfer that portion of the action challenging the validity of the act of the General Assembly to the Superior Court of Wake County for resolution by a three-judge panel if, after all other matters in the action have been resolved, a determination as to the facial validity of an act of the General Assembly must be made in order to completely resolve any matters in the case. The court in which the action originated shall maintain jurisdiction over all matters other than the challenge to the act's facial validity. For a motion filed under Rule 11 or Rule 12(b)(1) through (7), the original court shall rule on the motion, however, it may decline to rule on a motion that is based solely upon Rule 12(b)(6). If the original court declines to rule on a Rule 12(b)(6) motion, the motion shall be decided by the three-judge panel. The original court shall stay all matters that are contingent upon the outcome of the challenge to the act's facial validity pending a ruling on that challenge and until all appeal rights are exhausted. Once the three-judge panel has ruled and all appeal rights have been exhausted, the matter shall be transferred or remanded to the three-judge panel or the trial court in which the action originated for resolution of any outstanding matters, as appropriate.

N.C. R. Civ. P. 42(b)(4) (2019) (emphasis added).

¶ 8 Defendant's motion to dismiss, as well as Plaintiffs’ motion to transfer Defendant's motion to dismiss to the three-judge panel in Wake County came on for hearing and oral argument on 17 July 2020 in Forsyth County Superior Court before the Honorable Richard S. Gottlieb. Because Defendant's motion to dismiss was based solely upon Rule 12(b)(6), the trial court, declined to rule on the Rule 12(b)(6) motion, and granted Plaintiffs’ motion to transfer Defendant's motion to dismiss to Wake County pursuant to N.C. R. Civ. P. 42(b)(4). The trial court entered an order transferring "the action" to the three-judge panel of the Wake County Superior Court on 21 July 2020, and issued an amended order entered 22 July 2020, correcting a typographical error.

¶ 9 On 17 August 2020, Defendant filed a notice of appeal. On 16 December 2020, Plaintiffs filed a motion to dismiss Defendant's appeal, contending Defendant's appeal is interlocutory and does not affect a substantial right. On 4 January 2021, Plaintiffs’ motion to dismiss Defendant's appeal was referred to this Panel. Also on 4 January 2021, Defendant petitioned this Court to issue a writ of certiorari pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure.

II. Jurisdiction

A. Interlocutory Nature of Defendant's Appeal

¶ 10 Defendant argues the trial court's order granting Plaintiffs’ motion to transfer Defendant's motion to dismiss ("trial court's order") changed the venue of the case. Defendant contends since the right to venue established by statute is a substantial right, Defendant's appeal of the trial court's order is jurisdictionally proper before this Court. Plaintiff contends Defendant's appeal is interlocutory and should be dismissed by this Court.

¶ 11 "An order is interlocutory ‘if it does not determine the issues but directs some further proceeding preliminary to final decree.’ " Waters v. Qualified Pers., Inc. , 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (quoting Greene v. Laboratories, Inc. , 254 N.C. 680, 693, 120 S.E. 2d 82, 91 (1961) ). "As

867 S.E.2d 358

a general proposition, only final judgments, as opposed to interlocutory orders, may be appealed to the appellate courts." Hamilton v. Mortg. Info. Servs., Inc. , 212 N.C. App. 73, 77, 711 S.E.2d 185, 188 (2011) (citations omitted). "Appeals from interlocutory orders are only available in exceptional circumstances." Hamilton , 212 N.C. App. at 77, 711 S.E.2d at 188, (citation and internal quotations omitted). "The rule against interlocutory appeals seeks to prevent fragmentary, premature and unnecessary appeals by allowing the trial court to bring a case to final judgment before its presentation to the appellate courts." Turner v. Norfolk S. Corp. , 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (citing Waters v. Personnel, Inc. , 294 N.C. 200, 240 S.E.2d 338 (1978) ).

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