State v. Fayetteville St. Christian School

• Decision Date: 01 February 1980
• Docket Number: No. 125,125
• Citation: 261 S.E.2d 908,299 N.C. 351
• Parties: The STATE of North Carolina, the Child Day-Care Licensing Commission of the Department of Administration and Joseph W. Grimsley, Secretary of the Department of Administration, ex rel. Rufus L. EDMISTEN, Attorney General of North Carolina v. FAYETTEVILLE STREET CHRISTIAN SCHOOL and its Operator Mr. Bruce D. Phipps; Gospel Light Christian School and its Operator Mrs. Delores B. Yokely; Grace Christian School and its Operator Mr. Earl R. Eaton; Immanuel Day Care Center and its Operator Mrs. Elizabeth Harrell; Baptist Temple School and its Operator Mr. Donald R. Carter; Grace Christian School and its Operator Mr. Robert Durham; Bethany Church School and its Operator Reverend Gene Woodall; Tabernacle Christian School Day Care and its Operator Mr. Randall Shook; South Park Baptist School and its Operator Mr. Daniel D. Carr; Gospel Light Baptist Church and its Operator Reverend Gary Blackburn; Friendship Christian Schools and its Operator Mr. Charles Stanley; and all others similarly situated.
• Court: North Carolina Supreme Court

Page 908

261 S.E.2d 908

299 N.C. 351

The STATE of North Carolina, the Child Day-Care Licensing Commission of the Department of Administration and Joseph W Grimsley, Secretary of the Department of Administration, ex rel. Rufus L. EDMISTEN, Attorney General of North Carolina v. FAYETTEVILLE STREET CHRISTIAN SCHOOL and its Operator Mr Bruce D. Phipps; Gospel Light Christian School and its Operator Mrs. Delores B. Yokely; Grace Christian School and its Operator Mr. Earl R. Eaton; Immanuel Day Care Center and its Operator Mrs. Elizabeth Harrell; Baptist Temple School and its Operator Mr. Donald R. Carter; Grace Christian School and its Operator Mr. Robert Durham; Bethany Church School and its Operator Reverend Gene Woodall; Tabernacle Christian School Day Care and its Operator Mr. Randall Shook; South Park Baptist School and its Operator Mr. Daniel D. Carr; Gospel Light Baptist Church and its Operator Reverend Gary Blackburn; Friendship Christian Schools and its Operator Mr. Charles Stanley; and all others similarly situated.

No. 125.

Supreme Court of North Carolina.

Feb. 1, 1980.

Rufus L. Edmisten, Atty. Gen. by Andrew A. Vanore, Jr., Senior Deputy Atty. Gen. and Ann Reed, Sp. Deputy Atty. Gen., Raleigh, for the state.

Strickland & Fuller by Thomas E. Strickland, Goldsboro and Lake & Nelson, P. A. by I. Beverly Lake, Jr., and I. Beverly Lake, Raleigh, for defendants-appellants.

EXUM, Justice.

This is a suit brought by the state for declaratory and injunctive relief against the class represented by the individually named defendants and "all others similarly situated." The state seeks a declaration that the defendants, church-operated day-care centers and their administrators, are subject to the provisions of the Day-Care Facilities Act of 1977 (Act), G.S. 110-85 Et seq., and prays for an injunction restraining defendants from operating any day-care facilities until such time as they shall, pursuant to the Act, obtain day-care licenses from the North Carolina Child Day-Care Licensing Commission. Defendants appeal from (1) the superior Court's denial of their motion to dismiss, and (2) the superior Court's granting of the state's motion for a preliminary injunction.

Upon a careful review of the record and oral arguments, we conclude that both the denial of defendants' motion to dismiss and the granting of the preliminary injunction constitute nonappealable interlocutory orders. Defendants' purported appeal therefrom should be dismissed and the Court of Appeals' opinion vacated. Accordingly, we dissolve our writ of supersedeas and remand the case to the superior court for further proceedings.

At the center of this controversy is the scope of the state's constitutional power to regulate certain aspects of the operation of child day-care centers by churches and religious organizations. The Act in question establishes under the Department of Administration the Child Day-Care Licensing Commission and provides for mandatory annual licensing by the Commission of any day-care center which provides care on a regular basis for more than four hours per day for more than five children, "wherever operated and whether or not operated for profit." G.S. 110-86(3). Licenses are to be issued by the Secretary of Administration to operators of day-care facilities covered by the Act upon a showing of the facility's compliance with minimal standards relating to such matters as health and sanitation, capacity for emergency medical care, physical safety, staff-child ratio, and qualifications of facility staff. G.S. 110-91, 93. The purpose of these requirements is to ensure a "comprehensive approach" to the state's protection of "the growing number of children who are placed in day-care facilities" under the supervision and care of persons other than their parents or legal guardians. G.S. 110-85.

The record discloses that all of the individually named defendants were licensed in compliance with the Act sometime prior to the initiation of this suit. By verified complaint filed 20 October 1978, the state alleges that these defendants have now "asserted their refusal to be licensed or to apply for renewal of their licenses to operate day-care facilities" in accordance with the Act. The complaint prays both for a declaration that the Act may be applied to defendants without unconstitutionally interfering with their religious freedoms and for a preliminary and a permanent injunction restraining defendants from further noncompliance with the Act's provisions. Without filing answer, defendants moved on 7 December 1978 to dismiss the complaint on several grounds. On 11 December 1978 Judge Smith denied the motion to dismiss and allowed the state's motion for a preliminary injunction. Defendants appeal from these two orders.

I. THE MOTION TO DISMISS

Defendants assert on appeal that Judge Smith should have granted their motion to dismiss on the following grounds: (1) the Act cannot be constitutionally applied to church-operated day-care centers; (2) defendant institutions are not "day-care facilities" as defined in the Act and hence are not subject to its provisions; (3) the state has failed to obtain proper venue and the superior court lacks subject matter jurisdiction; and (4) the case has not been and cannot be properly certified as a class action. Although Judge Smith's order of 11 December 1978 rejected each of these arguments, his denial of defendants' motion with regard to ground (3), improper venue and lack of jurisdiction, and ground (4), failure to certify class action status, was specifically "without prejudice to defendants to file such additional motions as they think necessary should this action not be certified as a class action." The Court of Appeals affirmed Judge Smith's denial of the motion to dismiss and went on to hold, Inter alia, that the challenged Act is constitutional on its face and as applied to defendants.

We note that the first two grounds asserted by defendants in support of their motion to dismiss clearly serve to attack the legal sufficiency of the state's complaint to set forth a claim upon which relief may be granted. As to these grounds, defendants' motion is properly characterized as one under G.S. 1A-1, Rule 12(b)(6). See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Hodges v. Wellons, 9 N.C.App. 152, 175 S.E.2d 690 (1970). Ordinarily, a denial of a motion to dismiss under Rule 12(b)(6) merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on its merits. Thus, an adverse ruling on a Rule 12(b)(6) motion is in most cases an interlocutory order from which no direct appeal may be taken. Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Godley Auction Co. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979). In the case before us, we find that Judge Smith's refusal to allow defendants' motion to dismiss based upon grounds (1) and (2) above did not finally determine any issue in the case or threaten to impair any right of defendants that could not be later protected. As to those grounds, then, the denial of the motion to dismiss was clearly an interlocutory order from which any purported appeal is premature. G.S. 1-277; G.S. 7A-27. ¹

Nor did Judge Smith's denial of that part of defendants' motion "to dismiss" based upon ground (3), improper venue and lack of jurisdiction, and ground (4), lack of class action certification, constitute final judgments for purposes of appellate review. With regard to ground (3), defendants argue that the state must proceed under G.S. 110-104, which provides that injunctive relief against the continuing operation of a day-care center not in compliance with the Act may be sought in the superior court of the county in which the day-care center is located. ² Defendants point out that while the present action was instituted in the Superior Court of Wake County, ten of the eleven day-care centers named in the complaint are situated in counties other than Wake. Thus, defendants contend, the state has not obtained proper venue under section 104 of the Act; the state has no "standing" to maintain an action for injunctive relief apart from the express provisions of the statutory plan; and the Wake County Superior Court therefore lacks jurisdiction over the subject matter of the suit. We cannot agree that defendants' quarrel with venue raises an issue of jurisdiction. Matters of venue do not Per se trigger questions of jurisdictional power. And neither the spirit and intent of the Act nor section 104 permit, much less compel, a conclusion that the Act is intended to restrict the general statewide jurisdiction of the superior court or to limit the scope of relief normally available in declaratory judgment actions. ³ Defendants' motion "to dismiss" for lack of proper venue thus presents no challenge to the trial court's power to entertain the subject matter of the suit. At best, the motion serves only to question the propriety of the state's choice of Wake County as venue for the action. The motion should accordingly be treated as one to remove the action, not dismiss it. Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965); State ex rel. Cloman v. Staton, 78 N.C. 235 (1878).

It is true that an appeal from a final denial of a motion for change of venue is not premature. Coats v. Hospital, supra; Klass v. Hayes, 29 N.C.App. 658, 225 S.E.2d 612 (1976). In the instant case, however, the trial court's rejection of defendants' contentions both as to improper venue and failure to certify class action status was specifically without prejudice to defendants' right to file additional motions should class action certification ultimately be denied. Judge Smith's order in this regard was clearly tentative. He, in effect, postponed his ultimate...