Lakins v. W. N.C. Conference of the United Methodist Church, COA21-415

Docket NºCOA21-415
Citation873 S.E.2d 667
Case DateMay 17, 2022
CourtCourt of Appeal of North Carolina (US)

873 S.E.2d 667

Michael LAKINS, Plaintiff,
v.
The WESTERN NORTH CAROLINA CONFERENCE OF the UNITED METHODIST CHURCH (a/k/a Western North Carolina Conference); and The Children's Home, Incorporated (a/k/a The Children's Home, a/k/a The Crossnore School & Children's Home, a/k/a Crossnore Children's Home), Defendants.

No. COA21-415

Court of Appeals of North Carolina.

Filed May 17, 2022


Janet Janet & Suggs, LLC, by Richard Serbin and Matthew White, Winston Salem, for plaintiff-appellee.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Kelly S. Hughes, Charlotte, and Ashley P. Cuttino, pro hac vice, for defendant-appellant The Western North Carolina Conference of the United Methodist Church (a/k/a Western North Carolina Conference).

Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidus, G. Gray Wilson, Winston-Salem, and D. Martin Warf, Raleigh, for defendant-appellant The Children's Home, Incorporated (a/k/a The Children's Home, a/k/a The Crossnore School & Children's Home, a/k/a Crossnore Children's Home).

ZACHARY, Judge.

873 S.E.2d 671

¶ 1 Defendants The Western North Carolina Conference of the United Methodist Church ("UMC") and The Children's Home, Incorporated ("TCH") appeal from the trial court's order granting Plaintiff Michael Lakins's motion to transfer Defendants’ motions to dismiss, which raised constitutional challenges to a portion of the Sexual Assault Fast Reporting and Enforcement Act, to a three-judge panel of the Wake County Superior Court pursuant to N.C. Gen. Stat. §§ 1-267.1(a1), 1-81.1(a1), and 1A-1, Rule 42(b)(4) (2021) (collectively, the "three-judge panel provisions"). After careful review, we vacate and remand to the trial court for further proceedings.

Background

¶ 2 The Sexual Assault Fast Reporting and Enforcement Act ("the Act") was enacted in 2019 to "strengthen and modernize" our sexual assault laws. See An Act to Protect Children from Sexual Abuse and to Strengthen and Modernize Sexual Assault Laws, S.L. 2019-245, 2019 N.C. Sess. Laws 1231. Among other revisions, the Act extended to ten years the statute of limitations for a civil action based on sexual abuse suffered while a minor. Id. § 4.1, 2019 N.C. Sess. Laws at 1234; see N.C. Gen. Stat. §§ 1-17(d), 1-52(16). Further, it provided that "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." S.L. 2019-245, § 4.1, 2019 N.C. Sess. Laws at 1234; see N.C. Gen. Stat. § 1-17(e). The Act also contained a provision, effective from 1 January 2020 to 31 December 2021, that revived "any civil action for child sexual abuse otherwise time-barred under G.S. 1-52 as it existed immediately before" the Act's passage. See S.L. 2019-245, § 4.2(b), 2019 N.C. Sess. Laws at 1235 (the "revival section").

¶ 3 On 15 April 2020, Plaintiff filed a complaint against UMC and TCH, an orphanage that Plaintiff alleged in his complaint was opened and operated by UMC. Plaintiff sought damages for injuries resulting from sexual abuse by his "house parents," which allegedly occurred at TCH when Plaintiff was a minor in the 1970s and residing at the orphanage. In his complaint, Plaintiff asserted claims for negligence; negligent hiring, retention, and supervision; breach of fiduciary duty; and constructive fraud. Plaintiff also maintained that his otherwise time-barred claims were revived by the Act.

¶ 4 Defendants UMC and TCH filed their respective motions to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 26 and 30 June 2020, challenging, inter alia , the constitutionality of the Act's revival section as applied to Defendants. UMC further asserted that the claims should be dismissed pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction.

¶ 5 On 15 December 2020, Plaintiff filed a motion to transfer Defendants’ motions to dismiss challenging the Act's constitutionality to a three-judge panel of the Wake County Superior Court, pursuant to the three-judge panel provisions. On 22 February 2021, Plaintiff's motion to transfer came on for hearing in Mecklenburg County Superior Court. On 22 March 2021, the trial court entered an order granting Plaintiff's motion to transfer, determining that "[t]he constitutional challenges contained in [D]efendants[’] respective motions to dismiss under Rule 12(b)(6) raise facial challenges" to the constitutionality of the Act. The trial court declined to rule on Defendants’ remaining unnoticed and unscheduled Rule 12(b)(6) motions and UMC's unnoticed and unscheduled Rule 12(b)(1) motion, and ordered "a stay of these proceedings pending a ruling from the three-judge panel." Defendants timely filed notices of appeal.

Grounds for Appellate Review

¶ 6 As a preliminary matter, we address this Court's jurisdiction to review Defendants’ appeals of the trial court's order

873 S.E.2d 672

granting Plaintiff's motion to transfer. Plaintiff maintains that Defendants’ appeals should be dismissed as interlocutory. Defendants concede that the appeals are interlocutory, but each initially contended that the trial court's order affected substantial rights and therefore was immediately appealable.1 In the event that this Court determines that the trial court's orders do not affect a substantial right, Defendants have filed separate petitions for writ of certiorari, asking this Court to assert jurisdiction and address the merits of their arguments.

I. Interlocutory Appeals

¶ 7 Generally, this Court only hears appeals from final judgments. See N.C. Gen. Stat. § 7A-27(b)(1)–(2). "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." Veazey v. City of Durham , 231 N.C. 357, 361–62, 57 S.E.2d 377, 381, reh'g denied , 232 N.C. 744, 59 S.E.2d 429 (1950). By contrast, "[a]n 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." Id. at 362, 57 S.E.2d at 381. Because an interlocutory order is not yet final, with few exceptions, "no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge[.]" N.C. Consumers Power v. Duke Power Co. , 285 N.C. 434, 437, 206 S.E.2d 178, 181 (1974).

¶ 8 Nonetheless, an interlocutory order may be immediately appealed if "the trial court certifies, pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is no just reason for delay of the appeal[,]" Turner v. Hammocks Beach Corp. , 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009), or if "the order affects some substantial right and will work injury to [the] appellant if not corrected before appeal from final judgment[,]" Goldston v. Am. Motors Corp. , 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citation omitted); accord N.C. Gen. Stat. §§ 1-277(b), 7A-27(b)(3)(a). Our Supreme Court has defined a "substantial right" as "a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right." Oestreicher v. Am. Nat'l Stores Inc. , 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (citation omitted). The burden is on the appellant to affirmatively establish this Court's jurisdiction to accept an interlocutory appeal. Jeffreys v. Raleigh Oaks Joint Venture , 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).

¶ 9 In the instant case, the trial court did not certify for immediate appellate review the order granting Plaintiff's motion to transfer, pursuant to Rule 54(b). See Turner , 363 N.C. at 558, 681 S.E.2d at 773. Nevertheless, Defendants initially argued that the interlocutory order from which they appeal affects a substantial right and should be immediately reviewed.

¶ 10 Originally, both Defendants contended that the trial court's order affected their substantial right to have the case heard in the proper venue. However, as TCH promptly acknowledged in its reply to Plaintiff's motion to dismiss this appeal as interlocutory, this Court recently addressed the issue of whether the transfer of a motion to dismiss to a three-judge panel of Wake County Superior Court implicated a substantial right. Cryan , 2021-NCCOA-612, ¶ 16, 867 S.E.2d 354.

¶ 11 In Cryan , the defendant argued that appellate jurisdiction was proper in this Court because the trial court's order changed the venue of the case, thereby affecting a substantial right. Id. ¶ 10. Although the defendant was "correct in its contention that the right to venue established by statute is a

873 S.E.2d 673

substantial right[,]" the Cryan Court concluded that an order transferring a defendant's motion to dismiss to a three-judge panel of the Wake County Superior Court does "not grant, deny, change, or otherwise affect venue, and therefore d[oes] not affect a substantial right." Id. ¶ 13. Thus, in the instant case, Defendants’ argument to the...

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1 practice notes
  • Fox v. Fox, COA21-534
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 17, 2022
    ...review. ¶ 48 While generally speaking, "[a] party may amend his pleading once as a matter of course at any time before a responsive 873 S.E.2d 667 pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the tria......
1 cases
  • Fox v. Fox, COA21-534
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 17, 2022
    ...review. ¶ 48 While generally speaking, "[a] party may amend his pleading once as a matter of course at any time before a responsive 873 S.E.2d 667 pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the tria......

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