Stein v. Asheville City Bd. of Educ.

Decision Date01 February 2005
Docket NumberNo. COA03-1498.,COA03-1498.
Citation608 S.E.2d 80,168 NC App. 243
PartiesKathlyn Marie STEIN and Michael Hootstein, Plaintiffs, v. ASHEVILLE CITY BOARD OF EDUCATION, Cooperative Learning Center (also known as Wolfe Creek School, now Buncombe Community School West, at the time administered jointly by Blue Ridge Human Services Facilities, Inc. and/or Blue Ridge Mental Health and/or Asheville City Board Of Education and/or Buncombe County Board of Education), Buncombe County Board of Education, Blue Ridge Center for Mental Health, and Blue Ridge Area Authority, Defendants.
CourtNorth Carolina Court of Appeals

Orbock, Bowden, Ruark & Dillard, P.C., by Mark A. Leach and Kristen L. Harris, Winston-Salem, for plaintiffs-appellants. Schwartz & Shaw, P.L.L.C., by Richard A. Schwartz and Michael R. Delafield, Raleigh, for defendant-appellee Asheville City Board of Education.

Patrick, Harper & Dixon, L.L.P., by David W. Hood, Hickory, for defendants-appellees Cooperative Learning Center, Blue Ridge Human Services Facilities, Inc., Blue Ridge Mental Health, Blue Ridge Center for Mental Health, and Blue Ridge Area Authority.

Roberts & Stevens, P.A., by Christopher Z. Campbell and K. Dean Shatley, II, Asheville, for defendant-appellee Buncombe County Board of Education. GEER, Judge.

Plaintiffs Kathlyn Marie Stein and Michael Hootstein appeal from the trial courts' orders dismissing their claims against the Buncombe County Board of Education (the "Buncombe County Board") and the Asheville City Board of Education (the "Asheville Board"). Because plaintiffs have not timely appealed from the order dismissing the claims against the Buncombe County Board, we dismiss the appeal from that order. As for the Asheville Board, we hold that the trial court properly concluded that the Industrial Commission has exclusive jurisdiction over those claims and, therefore, affirm the trial court's order dismissing all claims against the Asheville Board.

Plaintiffs also appeal from the trial court's dismissal of their claims against the Blue Ridge Area Authority and programs operated by the Authority, including the Cooperative Learning Center ("CLC") and Blue Ridge Center for Mental Health (collectively "the Blue Ridge defendants"). Because the allegations of the complaint are sufficient to state a claim for relief with respect to the Blue Ridge defendants, we reverse the trial court's order granting the Blue Ridge defendants' motion to dismiss.


Plaintiffs' amended complaint alleged the following facts. Juveniles J.B. and C.N., who were 13 and 15 years old respectively, were behaviorally/emotionally handicapped children. Both had also been identified as having problems with anger and violence. They attended school at CLC and traveled to and from CLC on a public school bus driven by Nancy Patton. The bus monitor was Gail Guzman. The amended complaint alleged (1) that "at all pertinent times, [Patton] was acting as an employee for" the Asheville Board, CLC (including related entities), the Blue Ridge Area Authority, and/or the Buncombe County Board, and (2) that Guzman, at the time of "[a]ny acts or omissions," was acting within "the course and scope of her duties" for the Asheville Board, the Blue Ridge Area Authority, CLC, and the Buncombe County Board.

A week prior to 17 March 1998, Guzman overheard C.N. tell J.B. that he had a gun at his house under his mattress. She also overheard a second conversation in which C.N. suggested to J.B., "Let's rob somebody." When J.B. responded, "Okay," C.N. said, "I have the gun." J.B. stated, "I'll kill them." Guzman reported the conversation to bus driver Patton. Neither Guzman nor Patton informed anyone at CLC, Buncombe County Schools, Asheville City Schools, or the Asheville Police Department about what Guzman had overheard.

On 17 March 1998, from approximately 7:00 p.m. until 8:15 p.m., J.B. and C.N., along with another minor and an 18 year old, began stopping cars at an intersection in Asheville. They approached three different cars with the intent to rob and kill each of the drivers. J.B. used a loaded handgun supplied by C.N. to shoot Stein in the head. As a result of the shooting, Stein has suffered vascular injury, spinal fracture, nerve damage, and post-traumatic stress disorder. All four assailants entered guilty pleas to charges stemming from their assault on Stein.

Procedural History

On 1 March 2001, plaintiffs filed an initial complaint in file number 01 CVS 1219, asserting claims arising out of the shooting against essentially the same defendants sued in this case. The trial court dismissed with prejudice plaintiffs' claims against the Buncombe County Board on 11 June 2001. Plaintiffs filed an interlocutory appeal of that order. On 22 January 2002, prior to receiving a decision from this Court, plaintiffs voluntarily dismissed without prejudice their claims against all the remaining defendants. Plaintiffs did not notify this Court of the voluntary dismissal.

On 16 July 2002, this Court filed an unpublished opinion dismissing as interlocutory plaintiffs' appeal of the Buncombe County Board's dismissal. Stein v. Asheville City Schs., No. COA01-1028, 2002 WL 1546152 (N.C.Ct.App. July 16, 2002) (unpublished). Plaintiffs did not seek rehearing of that dismissal.

Instead, on 17 January 2003, plaintiffs filed this action against the Buncombe County Board, the Asheville Board, the Blue Ridge defendants, and the Asheville City Schools. Plaintiffs' amended complaint, filed 21 January 2003, dropped the Asheville City Schools as a defendant. On 11 April 2003, the Buncombe County Board moved to dismiss the amended complaint under N.C.R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. The Blue Ridge defendants simultaneously answered and moved to dismiss under Rule 12(b)(6) on 22 April 2003. On 13 June 2003, the Asheville Board also filed a motion to dismiss under Rule 12(b)(6) and under Rule 12(b)(7) for failure to join a necessary party.

The trial court granted the Buncombe County Board's motion on 8 August 2003, the Asheville Board's motion to dismiss on 13 August 2003, and the Blue Ridge defendants' motion on 8 September 2003. Plaintiffs appeal all three dismissals.

The Buncombe County Board

Plaintiffs contend, in this appeal, that the trial court erred in dismissing their claims against the Buncombe County Board in the order filed 11 June 2001. The Buncombe County Board argues in response that the appeal from this order, filed 5 September 2003, is untimely. We agree with the Buncombe County Board.

In its 11 June 2001 order in the 01 CVS 1219 action, the trial court directed "that plaintiffs' Complaint against ... the Buncombe County Board of Education is dismissed, with prejudice." On 2 July 2001, plaintiffs filed notice of appeal of that order. This Court's dismissal of that appeal on 16 July 2002 explained:

In the instant case, the order appealed from is interlocutory as there has been no final judgment as to all of the parties. While the trial court's order does not constitute a final adjudication of the claims against the City of Asheville and the Buncombe County Board of Education, the record does not indicate that plaintiffs' claims against the other named defendants (Asheville City Schools, Blue Ridge Center for Mental Health, Blue Ridge Area Authority, Buncombe County and Buncombe County Department of Social Services) have been dismissed or otherwise adjudicated. The trial court did not certify the order pursuant to Rule 54(b), and plaintiffs have failed to present any argument in their brief to this Court that a substantial right will be affected if this appeal is not accepted at this time. Accordingly, plaintiffs' appeal must be dismissed.

As a result of this dismissal, plaintiffs could still appeal the 11 June 2001 order once a final adjudication was entered in the underlying case.

Plaintiffs' voluntary dismissal of the "remaining claim[s]... ha[d] the effect of making the trial court's grant of partial summary judgment a final order." Combs & Assocs., Inc. v. Kennedy, 147 N.C.App. 362, 367, 555 S.E.2d 634, 638 (2001). Ordinarily, with the filing of the voluntary dismissal, plaintiffs would have had 30 days in which to appeal the trial court's Buncombe County Board order. Significantly, however, this voluntary dismissal occurred while the initial appeal of that order was still pending before this Court and four months before the filing of the decision dismissing the appeal as interlocutory.

Once they filed their voluntary dismissal of the remaining claims, plaintiffs had various options with respect to the Buncombe County Board order. First, immediately after the filing and prior to this Court's rendering its decision, they could have notified the Court of the voluntary dismissal and filed a motion to amend the record to include the voluntary dismissal. See Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C.App. 504, 507-08, 593 S.E.2d 808, 811

(declining to dismiss appeal from partial summary judgment order, even though initially interlocutory, because of plaintiff's voluntary dismissal of the remaining claims prior to the Court's ruling), disc. review denied, 358 N.C. 739, 603 S.E.2d 126 (2004).

Alternatively, plaintiffs could have petitioned this Court for rehearing pursuant to N.C.R.App. P. 31(a) following issuance of this Court's decision holding the appeal to be interlocutory. In the recent case of McManus v. Kluttz, ___ N.C.App. ___, 599 S.E.2d 438 (2004), this Court had dismissed as interlocutory an appeal from an order granting partial summary judgment to the plaintiff, unaware that a voluntary dismissal had been filed resulting in the appealed order becoming a final judgment. The Court subsequently withdrew its first opinion and reached the merits of the appeal. Id. The Court, however, sanctioned the appellants' counsel pursuant to N.C.R.App. P. 34(a)(3) and 34(b)(2) for failing to inform the Court of the voluntary...

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6 cases
  • Stein v. Asheville City Bd. of Educ.
    • United States
    • North Carolina Supreme Court
    • 3 Marzo 2006
    ...Carolina. March 3, 2006. Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 168 N.C.App. 243, 608 S.E.2d 80 (2005), on orders entered 8 August 2003, 13 August 2003, and 8 September 2003 by Judge Zoro J. Guice, Jr. and an order signed by Judg......
  • Martinez v. Wake Cnty. Bd. of Educ.
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    • North Carolina Court of Appeals
    • 20 Marzo 2018
    ...concurrent jurisdiction between the Industrial Commission and North Carolina’s superior courts. See Stein v. Asheville City Bd. of Educ ., 168 N.C. App. 243, 251, 608 S.E.2d 80, 86 (2005) ("[I]f a plaintiff’s claim against a Board of Education falls within the scope of N.C. Gen. Stat. § 143......
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    • North Carolina Court of Appeals
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    ...... ha [d] the effect of making the trial court's grant of partial summary judgment a final order.’ ” Stein v. Asheville City Bd. of Educ., 168 N.C.App. 243, 247, 608 S.E.2d 80, 83 (2005), rev'd on other grounds,360 N.C. 321, 626 S.E.2d 263 (2006) (quoting Combs & Assocs., Inc. v. Kennedy, ......
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    • North Carolina Court of Appeals
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