Epps v. Duke University, Inc.

• Decision Date: 06 September 1994
• Docket Number: No. 9314SC971,9314SC971
• Citation: 447 S.E.2d 444,116 N.C.App. 305
• Court: North Carolina Court of Appeals
• Parties: , 93 Ed. Law Rep. 1002 Hamlet EPPS, Robert Epps, Mary Montgomery, Jennifer Daniel, and Hazel Gadson, Plaintiffs, v. DUKE UNIVERSITY, INC., A North Carolina Corporation, Private Disgnostic Clinic, a North Carolina Partnership, John Peter Longabaugh, M.D., Nathan Pulkingham, M.D., Russell Hjelmstad, M.D., Michael Wilson, M.D., and Kathryn Lane, M.D., Defendants.

Page 444

447 S.E.2d 444

116 N.C.App. 305, 93 Ed. Law Rep. 1002

Hamlet EPPS, Robert Epps, Mary Montgomery, Jennifer Daniel and Hazel Gadson, Plaintiffs, v. DUKE UNIVERSITY, INC., A North Carolina Corporation, Private Disgnostic [sic] Clinic, a North Carolina Partnership, John Peter Longabaugh, M.D., Nathan Pulkingham, M.D., Russell Hjelmstad, M.D., Michael Wilson, M.D., and Kathryn Lane M.D., Defendants.

No. 9314SC971.

Court of Appeals of North Carolina.

Sept. 6, 1994.

Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A. by Adam Stein, Chapel Hill, for plaintiffs-appellees.

Atty. Gen. Michael F. Easley by Sp. Deputy Atty. Gen. Mabel Y. Bullock, Raleigh, for defendant-appellant Russell Hjelmstad, M.D.

Newsom, Graham, Hedrick, Kennon & Cheek, P.A. by Lewis A. Cheek and Joel M. Craig, Durham, for defendants-appellants Duke University, Inc., Private Diagnostic Clinic, John Peter Longabaugh, M.D., Nathan Pulkingham, M.D., Michael Wilson, M.D. and Kathryn Lane, M.D.

LEWIS, Judge.

All defendants attempted to appeal from the trial court's denial of defendant Hjelmstad's motion to dismiss. On 3 November 1993 this Court dismissed the appeal of all defendants except Russell Hjelmstad (hereinafter "Hjelmstad").

On appeal, Hjelmstad asserts that (1) the trial court erred in entering an order which went beyond the permissible scope of a ruling on a motion to dismiss, and (2) the court erred in denying the motion to dismiss, because Hjelmstad is entitled to immunity. An appeal from the denial of a motion to dismiss is interlocutory. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982). However, if the appeal involves questions of immunity, it affects a substantial right and becomes immediately appealable. See N.C.G.S. § 1-277 (1983); N.C.G.S. § 7A-27 (1989); EEE-ZZZ Lay Drain Co. v. North Carolina Dep't of Human Resources, 108 N.C.App. 24, 422 S.E.2d 338 (1992). We find the order to be immediately appealable.

Plaintiffs' action arises from the alleged wrongful autopsy of their decedent, Dora Epps McNair, who died at Duke University Hospital on 17 April 1990. Plaintiffs contend that defendants failed to advise them of the scope of the autopsy when they sought plaintiffs' consent and that defendants "mishandled and mutilated" the body of the decedent. They seek compensatory and punitive damages.

Hjelmstad filed a motion to dismiss on 18 March 1993, contending that he was immune from suit because he was acting in his capacity as Durham County Medical Examiner at the time of the autopsy. In his order denying the motion to dismiss, Judge Greene included several conclusions of law. He concluded that none of the defendants was entitled to the protection of statutes authorizing autopsies, and that Hjelmstad was not entitled to immunity because plaintiffs sued him in his individual capacity and because "it is sufficiently alleged that he acted outside of and beyond the scope of his duties as Durham County Medical Examiner."

I.

Hjelmstad first argues that the trial court erred in entering an order which exceeded the scope of a ruling on a motion to dismiss. Hjelmstad objects to Judge Greene's entry of conclusions of law that Hjelmstad acted outside the scope of his authority and that he was not entitled to immunity. He asks that the statements be considered "gratuitous and surplusage," and that we vacate the order and remand for further proceedings. See O'Neill v. Southern Nat'l Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979) (stating that a court's findings of fact and conclusions of law entered in an interlocutory order of dismissal were "gratuitous" and "surplusage" and did not constitute a basis for an immediate appeal where the order was not otherwise appealable). Plaintiffs, on the other hand, contend that the court's order was "precisely responsive" to the arguments raised by defendant's memorandum in support of the motion.

A court is not required to make findings of fact and conclusions of law when ruling on preliminary motions, but it has the discretion to do so. See N.C.G.S. § 1A-1, Rule 52(a)(2) (1990); Watkins v. Hellings, 321 N.C. 78, 361 S.E.2d 568 (1987). If a court does enter conclusions of law, they must be supported by adequate findings. See Appalachian Poster Advertising Co. v. Harrington, 89 N.C.App. 476, 366 S.E.2d 705 (1988). However, in State ex rel. Lewis v. Lewis, 63 N.C.App. 98, 303 S.E.2d 627 (1983) aff'd, 311 N.C. 727, 319 S.E.2d 145 (1984), Judge Becton clearly stated that a ruling on the merits cannot be made on a motion to dismiss for failure to state a claim. See Wilkes v. North Carolina State Bd. of Alcoholic Control, 44 N.C.App. 495, 261 S.E.2d 205 (1980).

We agree with defendant that Judge Greene erred in entering conclusions of law in his order. Judge Greene's order contained no findings of fact and therefore did not comply with the requirement of Rule 52 that conclusions of law be supported by findings of fact. Furthermore, Judge Greene's order constituted a ruling on the merits. His conclusion that Hjelmstad acted outside the scope of the duties of a medical examiner and that he is not entitled to immunity established Hjelmstad's liability for any damages. See Dickens v. Thorne, 110 N.C.App. 39, 429 S.E.2d 176 (1993) (a public officer not entitled to governmental immunity is liable for damages if, among other things, he acted outside the scope of his official duties). This order had the same effect as granting a plaintiff's motion for summary judgment on the issue of liability. We therefore vacate the portions of Judge Greene's order containing conclusions of law, including the conclusions that (1) Hjelmstad and the other defendants acted outside and beyond the scope of their duties, and that (2) Hjelmstad is not entitled to immunity.

II.

Hjelmstad also contends that the court erred in denying his motion to dismiss, because he believes he is entitled to immunity. At all relevant times, Hjelmstad was employed as a resident physician at Duke and also served as Durham County Medical Examiner pursuant to N.C.G.S. § 130A-382 (1992). Both parties conceded at oral argument that Hjelmstad is being sued for his activities as a medical examiner. At oral argument, plaintiffs' counsel stipulated that Hjelmstad ordered the autopsy while acting as the county medical examiner, and in their brief plaintiffs argued that Hjelmstad acted "outside of his authority as medical examiner."

A medical examiner is a public officer, Cherry v. Harris, 110 N.C.App. 478, 429 S.E.2d 771, disc. review denied, 335 N.C. 171, 436 S.E.2d 371 (1993), and is entitled to governmental immunity if sued in his official capacity. Whitaker v. Clark, 109 N.C.App. 379, 427 S.E.2d 142, disc. review denied and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993). Actions against officers of the State in their official capacities are actions against the State for the purposes of applying the doctrine of governmental immunity. Dickens, 110 N.C.App. at 45, 429 S.E.2d at 180. Governmental immunity is impossible to overcome absent consent or waiver. Messick v. Catawba County, 110 N.C.App. 707, 431 S.E.2d 489, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). There are no allegations of waiver here. Thus, if plaintiffs sued Hjelmstad solely in his official capacity, the case should have been dismissed by the trial court. See Whitaker, 109 N.C.App. at 384, 427 S.E.2d at 145 (stating that failure to allege waiver of immunity results in a finding of failure to state a claim).

However, if a public officer is sued in his individual capacity, he is entitled to immunity for actions constituting mere negligence, Cherry, 110 N.C.App. at 480, 429 S.E.2d at 722, but may be subject to liability for actions which are corrupt, malicious or outside the scope of his official duties. Dickens, 110 N.C.App. at 45, 429 S.E.2d at 180. See also Reid v. Roberts, 112 N.C.App. 222, 435 S.E.2d 116 (listing bad faith and willful and deliberate conduct as additional bases for liability), disc. review denied, 335 N.C. 559, 439 S.E.2d 151 (1993). On appeal, plaintiffs contend that Hjelmstad acted "far beyond the scope of that permitted by the [relevant] statute."

In order to determine whether or not the court correctly denied Hjelmstad's motion to dismiss, we must determine in what capacity he was sued. If Hjelmstad was sued...