Horne v. Town of Blowing Rock

• Decision Date: 02 October 2012
• Docket Number: No. COA12–196.,COA12–196.
• Citation: 732 S.E.2d 614
• Parties: Richard HORNE and wife, Meredith Horne, Parker Horne, by and through his GAL, Scott W. Heintzelman, Plaintiffs, v. TOWN OF BLOWING ROCK d/b/a Blowing Rock Park, Defendant.
• Court: North Carolina Court of Appeals

732 S.E.2d 614

Richard HORNE and wife, Meredith Horne, Parker Horne, by and through his GAL, Scott W. Heintzelman, Plaintiffs,

v.TOWN OF BLOWING ROCK d/b/a Blowing Rock Park, Defendant.

No. COA12–196.

Court of Appeals of North Carolina.

Oct. 2, 2012.

Appeal by defendant from order entered 22 November 2011 by Judge R. Greg Horne in Watauga County District Court. Heard in the Court of Appeals 16 August 2012.

The Roberts Law Firm, P.A., Gastonia, by Scott W. Roberts, for plaintiff appellees.

Cranfill Sumner & Hartzog LLP, by Patrick H. Flanagan, Charlotte, and Kelly Beth Smith, for defendant appellant.

McCULLOUGH, Judge.

The Town of Blowing Rock, d/b/a Blowing Rock Park (“defendant”) appeals from an order of the trial court converting its Rule 12(c) motion to dismiss into a motion for summary judgment and denying its motion to dismiss plaintiffs' action on the basis of governmental immunity. We affirm.

I. Background

Blowing Rock Park is a municipal recreation area located in Blowing Rock, North Carolina, and is maintained by the Town of Blowing Rock. On 25 February 2011, plaintiffs filed a complaint against defendant alleging that on 20 June 2011, the minor plaintiff Parker Horne was walking through Blowing Rock Park when he “stepped into a drain hole that was completely obscured from his view by overgrown grass and grass clippings,” which caused him to sustain injuries to his left ankle and other portions of his body. Plaintiffs asserted, inter alia, that defendant was negligent in failing to inspect the park's premises, failing to warn visitors of hidden perils or unsafe conditions, and failing to properly maintain the grass around the drain hole. Plaintiffs Richard and Meredith Horne, parents of the minor plaintiff, sought recovery for all medical bills incurred on behalf of the minor, and the minor plaintiff Parker Horne sought a money judgment for his pain and suffering.

In their complaint, plaintiffs alleged that defendant had “waived its immunity for the suit by the purchase of liability insurance.” On 26 April 2011, defendant filed an answer and motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6), and 12(c) of the North Carolina Rules of Civil Procedure. In its motion to dismiss, defendant asserted that it was entitled to governmental immunity, and therefore plaintiffs' claims were barred. In support of its motion to dismiss based on governmental immunity, defendant attached a copy of an endorsement clause contained in its insurance policy titled “Sovereign Immunity Non–Waiver Endorsement,” as well as an affidavit from its insurance adjuster, Laurie Scheel (“Scheel”), attesting to the authenticity of the insurance policy and its endorsement clause. The endorsement clause at issue states that “[n]othing in this policy, coverage part or coverage form waives sovereign immunity for any insured[,]” and that the policy provides “no coverage” for any claim or suit for which defendant would otherwise have no liability because of sovereign immunity.

On 19 September 2011, a hearing was held on defendant's motion to dismiss. On 22 November 2011, the trial court entered an order stating that “[b]ased on receipt of the affidavit [of Scheel], the court will treat Defendant's Rule 12(c) motion as a motion for summary judgment (Rule 56).” Based on its “review of the pleadings, the sole affidavit and exhibit tendered, and arguments of counsel[,]”the trial court granted partial summary judgment in favor of defendant as to plaintiffs' claim that defendant had waived its governmental immunity by the purchase of liability insurance. However, citing this Court's opinion in Estate of Williams v. Pasquotank County, ––– N.C.App. ––––, 711 S.E.2d 450 (2011), vacated and remanded,––– N.C. ––––, 732 S.E.2d 137 (2012), the trial court found there remained genuine issues of material fact and denied the remainder of defendant's motion to dismiss. On 22 December 2011, defendant gave timely written notice of appeal to this Court from the trial court's order.

II. Appealability

Because defendant appeals the trial court's denial of its motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6) and 12(c), an interlocutory order, we must first address the issue of appealability. See Data Gen. Corp. v. Cty. of Durham, 143 N.C.App. 97, 100, 545 S.E.2d 243, 245 (2001) (noting that the denial of a motion to dismiss is interlocutory and ordinarily is not immediately appealable). Plaintiffs argue defendant's appeal should be dismissed as interlocutory, since defendant is admittedly appealing the trial court's denial of its motion to dismiss pursuant to Rule 12(b)(1), and this Court has expressly held that “the denial of a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is not immediately appealable.” Id. at 100, 545 S.E.2d at 246.

To the contrary, defendant argues that this Court has consistently allowed immediate appellate review of “orders denying dispositive motions grounded on the defense of governmental immunity,” as they affect a substantial right. Hedrick v. Rains, 121 N.C.App. 466, 468, 466 S.E.2d 281, 283 (1996). Our review of relevant case law reveals defendant's assertion is correct in the context of appeals from orders denying a party's motion to dismiss under Rules 12(b)(2) (personal jurisdiction), 12(b)(6) (failure to state a claim), and 12(c) (judgment on the pleadings), and for summary judgment under Rule 56(c). See, e.g., Transportation Servs. of N.C., Inc. v. Wake Cnty. Bd. of Educ., 198 N.C.App. 590, 593, 680 S.E.2d 223, 225 (2009) (allowing interlocutory review of trial court's denial of motion to dismiss under Rules 12(b)(2) and 12(b)(6)); Davis v. Dibartolo, 176 N.C.App. 142, 144, 625 S.E.2d 877, 879 (2006) (“The denial of a 12(b)(6) motion to dismiss for failure to state a claim is immediately appealable where the motion raises the defense of sovereign immunity.”); Hedrick, 121 N.C.App. at 468, 466 S.E.2d at 283 (allowing interlocutory review of denial of Rule 12(c) motion for judgment on the pleadings asserting governmental immunity); Owen v. Haywood Cnty., 205 N.C.App. 456, 458, 697 S.E.2d 357, 358–59 (denial of motion for summary judgment on grounds of governmental immunity is immediately appealable as affecting a substantial right), disc. review denied,364 N.C. 615, 705 S.E.2d 361 (2010).

However, as plaintiffs correctly contend, this Court has expressly held that “the denial of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is not immediately appealable, even where the defense of sovereign immunity is raised.” Davis, 176 N.C.App. at 144–45, 625 S.E.2d at 880 (citing Data Gen. Corp., 143 N.C.App. at 100, 545 S.E.2d at 246). In Meherrin Indian Tribe v. Lewis, 197 N.C.App. 380, 677 S.E.2d 203 (2009), this Court reiterated this point in holding that “defendants' appeal from the denial of their Rule 12(b)(1) motion based on sovereign immunity is neither immediately appealable pursuant to N.C. Gen.Stat. § 1–277(b), nor affects a substantial right.” Id. at 385, 677 S.E.2d at 207.

Here, defendant's motion to dismiss was asserted pursuant to Rules 12(b)(1), 12(b)(6), and 12(c). We may properly review the trial court's denial of defendant's motion to dismiss under Rule 12(b)(6) or Rule 12(c). However, in light of this Court's holdings in Data Gen. Corp.,Davis, and Lewis, an interlocutory review of the trial court's order denying defendant's motion to dismiss pursuant to Rule 12(b)(1) is not properly before this Court.

We note that in its brief, defendant first asserts that the trial court erred in denying its Rule 12(b)(1) motion to dismiss. Throughout its argument on the issue, however, defendant simply argues the trial court erred in denying its “motion to dismiss,” without specifying under which Rule, and at times, defendant asserts the trial court erred in denying summary judgment in its favor on the grounds of governmental immunity. Given this Court's preference for reaching the merits of an appeal, see Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 199, 657 S.E.2d 361, 366 (2008), and in light of the trial court's order converting defendant's Rule 12(c) motion into a motion for summary judgment we will allow defendant's appeal and consider defendant's argument as contending the trial court erred either in denying its motion to dismiss under Rule 12(c) or in denying summary judgment in its favor on the grounds of governmental immunity.

III. Conversion of Motion to Dismiss Into Motion for Summary Judgment

Defendant's first argument on appeal is that the trial court erred in converting its Rule 12(c) motion to dismiss into a Rule 56 motion for summary judgment. We disagree.

Rule 12(b) provides that a motion to dismiss for failure to state a claim under Rule 12(b)(6) “shall be treated as one for summary judgment and disposed of as provided in Rule 56” where “matters outside the pleading are presented to and not excluded by the court” in ruling on the motion. N.C. Gen.Stat. § 1A–1, Rule 12(b) (2011); see also Data Gen. Corp., 143 N.C.App. at 102, 545 S.E.2d at 247.Rule 12(c) contains an identical provision, stating that “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]” N.C. Gen.Stat. § 1A–1, Rule 12(c) (2011).

The general rules about which documents can be considered on a Rule 12(c) motion are as follows: if documents are attached to and incorporated within a complaint, they become part of the complaint. They may, therefore, be considered in connection with a Rule ... 12(c) motion without converting it into a motion for summary judgment. A document attached to the moving party's pleading may not be considered in connection with a Rule 12(c) motion unless the nonmoving party has made admissions regarding the document.

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