Locus v. Fayetteville State University

• Court: North Carolina Court of Appeals
• Writing for the Court: WYNN; HEDRICK
• Citation: Locus v. Fayetteville State University, 402 S.E.2d 862, 102 N.C.App. 522 (N.C. App. 1991)
• Decision Date: 16 April 1991
• Docket Number: No. 9012SC381,9012SC381
• Parties: , 66 Ed. Law Rep. 1312 Bessie C. LOCUS v. FAYETTEVILLE STATE UNIVERSITY; Dr. Robert Lemons, individually and in his official capacity as Head, Division of General Studies; Mr. James Scurry, individually and in his official capacity as Director of Career Planning and Placement; Dr. Charles A. Lyons, Jr., individually and in his official capacity as Chancellor of Fayetteville State University; Valeria Fleming, individually and in her official capacity as Provost and Vice-Chancellor for Academic Affairs; Matthew Jarmond, Jr., individually and in his official capacity as Director of Personnel; Robert James, individually and in his official capacity as the Coordinator of the Title III Program; Dr. James E. Carson, individually and in his official capacity as Vice Chancellor for Institutional Development; Harold L. Nixon, individually and in his official capacity as Vice Chancellor of Student Development; and William Clement, individually.

Page 862

402 S.E.2d 862

102 N.C.App. 522, 66 Ed. Law Rep. 1312

Bessie C. LOCUS v. FAYETTEVILLE STATE UNIVERSITY; Dr. Robert Lemons individually and in his official capacity as Head, Division of General Studies; Mr. James Scurry, individually and in his official capacity as Director of Career Planning and Placement; Dr. Charles A. Lyons, Jr., individually and in his official capacity as Chancellor of Fayetteville State University; Valeria Fleming, individually and in her official capacity as Provost and Vice-Chancellor for Academic Affairs; Matthew Jarmond, Jr., individually and in his official capacity as Director of Personnel; Robert James, individually and in his official capacity as the Coordinator of the Title III Program; Dr. James E. Carson individually and in his official capacity as Vice Chancellor for Institutional Development; Harold L. Nixon individually and in his official capacity as Vice Chancellor of Student Development; and William Clement, individually.

No. 9012SC381.

Court of Appeals of North Carolina.

April 16, 1991.

James H. Locus, Clayton, for plaintiff-appellant.

Attorney General Lacy H. Thornburg by Associate Atty. Gen., Lars F. Nance, Raleigh, for defendant-appellee.

WYNN, Judge.

In August 1986, the plaintiff, Bessie C. Locus, resigned from her position as an Administrative Assistant in the Career Planning and Placement Office at Fayetteville State University ("the University"). Thereafter, on 2 September 1988, she commenced this action against the University and nine individual defendants, eight of whom were named both individually and in their official capacities with the University. In her complaint, she asserted claims for intentional infliction of emotional distress, civil conspiracy and constructive discharge, all of which arose out of actions taken by the named defendants.

In essence, the plaintiff alleged that she was the victim of a "civil conspiracy" formed by the defendants and designed to force her to quit her job at the University because she had filed a claim with the Equal Employment Opportunity Commission. The defendants filed an answer to her complaint asserting various defenses, including lack of personal jurisdiction, failure to state a claim upon which relief could be granted, sovereign immunity, qualified immunity and the intra-corporate conspiracy doctrine. The defendants later filed a separate motion to dismiss the complaint pursuant to North Carolina Rules of Civil Procedure 12(b)(2) and 12(b)(6), lack of personal jurisdiction and failure to state a claim upon which relief can be granted.

A hearing on all motions was originally calendared for 6 November 1989, but was continued by the trial court until 27 November 1989 with instructions that the parties submit all material they wished the court to consider prior to the hearing. Subsequent to that instruction, the defendants submitted several depositions in support of their motions to the court. The depositions were also served on the plaintiff. The plaintiff did not make any submissions prior to the hearing.

At the hearing on the motions, the defendants requested the court to convert their 12(b)(6) motion to one for summary judgment under Rule 56 and offered the previously submitted depositions in support of that motion. Thereafter, the plaintiff sought to present the deposition testimony of several of her witnesses. However, the trial court refused to consider the plaintiff's depositions for the reason that the plaintiff had failed to timely submit the depositions prior to the motions hearing date in accordance with the trial court's earlier instructions. The trial court then reviewed the defendants' depositions and entered an order which found that the principle of sovereign immunity shielded both the University and the defendants named in their official capacities from liability and that there were no genuine issues of material fact. The order concluded by dismissing the plaintiff's complaint against all defendants. The plaintiff now appeals.

I

We must note at the outset that since there was no court reporter present to record the proceedings below, our review of this case is limited by the absence of a verbatim transcript. We must therefore rely upon the scant record and the parties' briefs for an explanation of the proceedings below. Secondly, the trial judge's written Order concluded that dismissal was warranted under Rules 12(b)(2) and 12(b)(6); however, it did not set forth which rule applied to the defendants in their official capacities and which applied to defendants in their individual capacities. Thirdly, although the Order found as fact that there were no genuine issues of material fact, it did not conclude by granting summary judgment.

Notwithstanding these imprecisions, we have concluded that the 12(b)(2) dismissal for lack of personal jurisdiction applied to the University and the named defendants in their official capacities under the sovereign immunity doctrine. It has been recognized that whether sovereign immunity presents a question of subject matter jurisdiction or personal jurisdiction is unsettled in North Carolina." Zimmer v. North Carolina Dept. of Transp., 87 N.C.App. 132, 133, 360 S.E.2d 115, 116 (1987). Nonetheless, on at least three occasions this court has treated sovereign immunity as presenting a question of personal jurisdiction. See Id. at 134, 360 S.E.2d at 116; Stahl-Rider, Inc. v. State, 48 N.C.App. 380, 269 S.E.2d 217 (1980); Sides v. Cabarrus Memorial Hosp., Inc., 22 N.C.App. 117, 205 S.E.2d 784 (1974), modified and aff'd, 287 N.C. 14, 213 S.E.2d 297 (1975). Our treatment of the trial court's 12(b)(2) dismissal as applying to the University and the named defendants in their official capacities is consistent with the parties' treatment of this issue in their briefs. Moreover, the plaintiff concedes in her brief that based upon the principle of sovereign immunity, the trial court's 12(b)(2) dismissal was proper as applied to the University and the named defendants in their official capacities. We therefore need not address the propriety of that ruling.

It follows that this appeal is limited to the defendants in their individual capacities. Correspondingly, in their briefs, the parties addressed the 12(b)(6) motion, and the ruling thereon, as a motion and decision for summary judgment in favor of the named defendants in their individual capacities. We are of the opinion that the parties also correctly treated this issue and will address it accordingly.

II

The plaintiff's sole assignment of error on appeal is that the trial court erred by failing to give her a reasonable opportunity to oppose the defendants' summary judgment motion with the proffered depositions. We agree.

Here, the trial court converted the defendants' 12(b)(6) motion to a motion for summary judgment when it considered and partially based its decision upon an affidavit and depositions submitted by the defendants. This conversion is quite permissible where matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim. Our Supreme Court has held that such a motion shall be treated as one for summary judgment under Rule 56. DeArmon v. B. Mears Corp., 312 N.C. 749, 758, 325 S.E.2d 223, 229 (1985); See also N.C.R.Civ.P. 12(b). Moreover, North Carolina General Statutes section 1A-1, Rule 12(b) states, in pertinent part, that,

If, on a [12(b)(6) ] motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

N.C.Gen.Stat. § 1A-1, Rule 12(b) (1990) (emphasis added).

It is the plaintiff's contention that even though the named defendants may be shielded from liability in their official capacities, they remain personally liable for any actions which may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties. The truth of this assertion cannot be denied:

While personal liability for mere negligence turns on the question of whether the individual is a public officer or an employee, this distinction is immaterial if the individual's actions are "corrupt or malicious" or are "outside and beyond the scope of his duties." (citation omitted) Both employees and public officers are liable for damages proximately caused by such actions.

Hare v. Butler, 99 N.C.App. 693, 701, 394 S.E.2d 231, 237, disc. review denied, 327 N.C. 634,...