Opinion
No. COA12–1004.
2013-04-2
Frances P. RED ARROW, Plaintiff, v. PINE LAKE PREPARATORY, INC. BOARD OF DIRECTORS and Katie Alice Dunaway, individually, Defendants.
Homesley, Gaines, & Dudley, LLP, by Christina Clodfelter and Edmund Gaines, for Plaintiff. Schwartz & Shaw, P.L.L.C., by Rachel B. Hitch, for Defendants.
Appeal by Plaintiff from Order entered 12 April 2012 by Judge Christopher W. Bragg in Iredell County Superior Court. Heard in the Court of Appeals 9 January 2013. Homesley, Gaines, & Dudley, LLP, by Christina Clodfelter and Edmund Gaines, for Plaintiff. Schwartz & Shaw, P.L.L.C., by Rachel B. Hitch, for Defendants.
STEPHENS, Judge.
Facts and Procedural History
Frances P. Red Arrow (“Plaintiff”) is a licensed social worker and was employed at Pine Lake Preparatory Charter School (“Pine Lake”) as a guidance counselor. She began working at Pine Lake on 1 July 2009. The next year, on 14 May 2010, the school renewed her contract. Her employment was terminated that June.
Plaintiff alleges that her termination stems from the fact that a Pine Lake course, Advanced Placement (“AP”) Government, had never been approved for AP credit. When Plaintiff learned this fact, she met with school officials—including Pine Lake's Head of School, Ms. Katie Alice Dunaway (“Dunaway”)—and informed them of her intention to notify certain colleges and universities that the course was not AP accredited. Plaintiff also communicated to the officials her belief that Pine Lake was required to send updated transcripts and school profiles to colleges and universities in order to make them aware of this discrepancy. Plaintiff contends that the officials instructed her not to do so “until after the students had been informed of their acceptance to the colleges and universities to which they applied.” Plaintiff further alleges that she was “mistreated and verbally abused by [Pine Lake] officials” because of her statements about this matter. In particular, she asserts that Dunaway “maliciously, intentionally and spitefully caused [the Pine Lake Board of Directors (“the Board”) ] to believe that Plaintiff's allegations had no merit.”
Plaintiff's employment was terminated on 24 June 2010, after entering her second contract. She filed a complaint against the Board and Dunaway (collectively, “Defendants”) on 6 December 2011 as a result. In her complaint, Plaintiff alleges causes of action for wrongful termination, breach of contract, and tortious interference with contract, among other things. On 5 January 2012, Defendants filed motions to dismiss Plaintiff's actions for wrongful termination and tortious interference under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, asserting that Plaintiff had failed to state a claim upon which relief could be granted. SeeN.C. Gen.Stat. § 1A–1, Rule 12(b)(6) (2011). Defendants did not challenge the sufficiency of Plaintiff's pleading with regard to the breach of contract claim. Two months later, on 19 March 2012, Plaintiff moved for leave to amend her complaint pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure. Leave was granted on 26 March 2012, and Plaintiff filed her amended complaint that same day. One month later, on 12 April 2012, the trial court entered an order granting Defendants' motion to dismiss as to wrongful termination “for both the 2009–10 and 2010–11 school years” and denying Defendants' motion to dismiss Plaintiff's claim against Dunaway for tortious interference with contract. Plaintiff and Dunaway appealed.
Discussion
Plaintiff appeals the trial court's grant of Defendants' motion to dismiss her claim for wrongful termination, and Defendants appeal the trial court's denial of their motion to dismiss Plaintiff's claim for tortious interference on the part of Dunaway. We address Plaintiff's appeal first.
I. Defendants' Motion to Strike
Before considering the merits of Plaintiff's argument, we address Defendants' motion to strike Plaintiff's reply brief under Rule 28(h)(2) of the North Carolina Rules of Appellate Procedure. N.C.R.App. P. 28(h)(2) (2012). Rule 28(h)(2) states “[n]o reply brief will be received or considered by the court, except ... [i]f the appellee has presented in its brief new or additional issues[.]” Id. In the case of Newsome v. N.C. State Bd. of Elections, 105 N.C.App. 499, 415 S.E.2d 201 (1992), we determined that the appellee had presented new or additional issues on appeal when those issues “[did] not arise naturally and logically from the record and question presented [by the appellant].” Id. at 504, 415 S.E.2d at 204.
Here, Plaintiff uses her reply brief to respond to Defendants' argument that her appeal is interlocutory and not subject to immediate review. In her principal brief, Plaintiff asserted as grounds for appellate review that the order dismissing her claim for wrongful termination was a final judgment of the trial court. She did not acknowledge or discuss the interlocutory nature of her appeal. Defendants contend in their motion to strike that Plaintiff's reply brief—which addresses the interlocutory nature of her appeal for the first time—is improper because it does not respond to new or additional issues raised in Defendants' brief. They assert that Plaintiff's reply brief, instead, impermissibly reacts to Defendants' argument that Plaintiff's appeal is interlocutory. We agree.
Defendants presented no new or additional issues in their brief; rather, they advanced a different argument on the question of Plaintiff's right to immediate appellate review. Plaintiff's assertion that this is an appeal from a final judgment, while incorrect, was the point where the issue of the proper grounds for appellate review originated. The fact that Plaintiff was not prepared for Defendants' rebuttal, i.e., that the appeal is interlocutory in nature, does not mean that Defendants presented new or additional issues sufficient to justify Plaintiff's submission of a reply brief under Rule 28(h)(2). Defendants' argument concerning the grounds for Plaintiff's appeal arose naturally and logically from her erroneous assertion that there were adequate grounds for appellate review. We therefore grant Defendants' motion to strike the reply brief submitted by Plaintiff.
II. Plaintiff's Wrongful Termination Appeal
Plaintiff seeks to appeal the trial court's order granting Defendants' motion to dismiss her wrongful termination claim, but incorrectly characterizes her appeal as one from a final judgment. Rather than arising from a final judgment, Plaintiff's appeal is from the trial court's interlocutory order. “An order ... is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.” N.C. Dep't of Transp. v. Page, 119 N.C.App. 730, 733, 460 S.E.2d 332, 334 (1995) (citation omitted). In this case, Defendants did not seek to have Plaintiff's breach of contract claim dismissed. Accordingly, that element of her complaint remains open. In addition, the trial court's order, which granted Defendants' motion to dismiss Plaintiff's wrongful termination action for failure to state a claim, but denied Defendants' motion as to tortious interference with contract, is “plainly an interlocutory order” because further action is required to finally determine the entire controversy as to tortious interference with contract. See Pratt v. Stanton, 147 N.C.App. 771, 773, 556 S.E.2d 621, 623 (2001) (“An order, such as the orders sub judice, granting a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutory order.”) (citation omitted).
As a general rule, this Court will not review an interlocutory order on appeal. N.C.R. Civ. P. 54(b) (2011); Liggett Grp. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). We will, however, consider an interlocutory appeal when the trial court (1) “enters a final judgment as to one or more but fewer than all of the claims or parties” and provides a Rule 54(b) certification in its order that there is no just reason to delay the appeal, or (2) “deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994) (citations and quotation marks omitted). “[I]t is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal[.]” Id.
.Rule 54(b) provides, in pertinent part:
When more than one claim for relief is presented in an action ..., the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal....
Here, the trial court's order contains no Rule 54(b) certification, and Plaintiff has failed to allege that a substantial right would be jeopardized absent immediate review by this Court. “It is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order....” Id. at 380, 444 S.E.2d at 254. Accordingly, we dismiss Plaintiff's interlocutory appeal.
III. Defendants' Tortious Interference Appeal
For the same reasons, Defendants' appeal is likewise interlocutory. However, “[o]rders denying dispositive motions based on public official's immunity affect a substantial right and are immediately appealable.” Summey v. Barker, 142 N.C.App. 688, 689, 544 S.E.2d 262, 264 (2001) (commenting that “the essence of absolute immunity is the possessor's entitlement not to have to answer for his conduct in a civil damages action” and electing to review the defendants' appeal of the denial of their 12(b)(6) motion on grounds that they enjoyed public official immunity) (citations omitted). Here, Defendants contend they are entitled to immediate review of the trial court's order because Dunaway's motion to dismiss implicates a substantial right. To the extent that Defendants' appeal relies on public official immunity, we agree.
Defendants argue that (1) Plaintiff did not allege facts sufficient to state a claim of tortious interference with contract, (2) Dunaway is immune from suit because she is protected by both (a) public official immunity and (b) qualified immunity, and (3) Plaintiff's complaint states facts which necessarily defeat her claim. In their statement of grounds for appellate review, Defendants argue a substantial right based solely on Dunaway's status as a public official who may assert immunity. Accordingly, we address their appeal only to the extent it arises from Dunaway's defense of public official immunity. See Jeffreys, 115 N.C.App. at 380, 444 S.E.2d at 254 (“It is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order....”).
In North Carolina, “[p]ublic officials cannot be held individually liable for damages caused by mere negligence in the performance of their governmental or discretionary duties[.]” Meyer v. Walls, 347 N.C. 97, 112, 489 S.E.2d 880, 888 (1997). That immunity is not so broad, however, as to protect public officials from liability for corrupt or malicious acts. Hawkins v. State, 117 N.C.App. 615, 629–30, 453 S.E.2d 233, 241–42 (1995) ( “An official may not be held liable unless the plaintiff alleges and proves that the official's act, or failure to act, was corrupt or malicious or that he acted outside of and beyond the scope of his duties.”) (quotation marks, citation, brackets, and ellipses omitted). Malice is present when an official intends to do “a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.” Id. (citation omitted). Because malice incorporates intent, we have concluded that “the doctrine of qualified immunity does not immunize public officials or public employees from suit in their individual capacities” when a party alleges an intentional tort claim. Id. (affirming the trial court's denial of the defendants' motion to dismiss the plaintiff's intentional tort claim on grounds of public official immunity).
In this case, Plaintiff's claim of tortious interference with contract is an intentional tort and, thus, could be sufficient to pierce Dunaway's immunity. See Beck v. City of Durham, 154 N.C.App. 221, 230, 573 S.E.2d 183, 190 (2002) (affirming the trial court's denial of the defendants' motion to dismiss and concluding that they were potentially liable to the plaintiff because “tortious interference with contract .... [is an] intentional tort claim”). Therefore, we need only address the trial court's ruling on Defendants' motion to dismiss to the extent that it correctly or incorrectly determined whether Plaintiff properly alleged the elements of tortious interference with contract under Rule 12(b)(6).
The motion to dismiss under [Rule] 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). “This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4,aff'd per curiam,357 N.C. 567, 597 S.E.2d 673 (2003).
The elements of tortious interference with contract are:
(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person;
(2) defendant knows of the contract;
(3) the defendant intentionally induces the third person not to perform the contract;
(4) and in doing so acts without justification;
(5) resulting in actual damage to the plaintiff.
Embree Constr. Grp., Inc. v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992) (citations omitted).
Defendants contend that Plaintiff's claim of tortious interference with contract failed to properly state a claim because it offers “scant—if any— factual support for Plaintiff's [ ]assertion that [ ]Dunaway induced the Board to terminate its contracts with Plaintiff.” In particular, Defendants focus their argument on the fourth element of the claim, asserting that Plaintiff's “bare allegation[s]” are not sufficient to state a valid claim. We are unpersuaded.
In order to survive a motion to dismiss, Plaintiff must “allege[ ] the substantive elements of a legally recognized claim and [give] sufficient notice of the events which produced the claim to enable the adverse party to prepare for trial.” Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C. 216, 218, 367 S.E.2d 647, 648–49 (1988). “[A] conclusory allegation that a public official acted willfully and wantonly should not be sufficient, by itself, to withstand a Rule 12(b)(6) motion to dismiss.” Farrell v. Transylvania Cnty. Bd. of Ed., 175 N.C.App. 689, 696, 625 S.E.2d 128, 134 (2006) (“The facts alleged in the complaint must support the conclusion.”) (emphasis added).
Here, Plaintiff asserts that Dunaway (1) expressed a desire to see Plaintiff terminated, (2) withheld information, (3) fabricated information about Plaintiff, (4) presented that information to the Board, and (5) disparaged Plaintiff to the Board. These allegations are not merely conclusory. They represent references to particular factual events that Plaintiff contends she is able to prove and that would—if proven—constitute tortious interference with contract. We agree. Plaintiff's allegations are sufficient to give Dunaway notice of the events to which Plaintiff is referring and constitute a proper allegation of the substantive elements of tortious interference with contract.
Plaintiff specifically contends, inter alia, that Dunaway “intentionally induced the Charter School and the Board to not perform the contract,” acted “without justification and exceeded the authority of her supervisory position,” and caused Plaintiff to experience actual damages. In support of those allegations, Plaintiff asserts that Dunaway “had an improper purpose and improper motives in terminating Plaintiff and in having induced the Charter School to and the Board to terminate Plaintiff .... [and] expressed a desire to see Plaintiff terminated.” Plaintiff supports that assertion by claiming that Dunaway “bypassed Plaintiff and withheld pertinent job information[ ], disparaged Plaintiff to other school officials and the Board, and fabricated information about Plaintiff and [her] employment to the Board and others,” all resulting in her eventual termination.
Acts of fabricating information about a party to a contract and disparaging that party are intentional in nature and could have caused the Board to commit the alleged breach. The fact that Plaintiff's allegations could have been more specific does not, in and of itself, mean that they amount to an insufficiently pleaded complaint. If found to be true and supported by further detail in discovery or at trial, Plaintiff's assertions could show that Dunaway tortiously interfered with the contract between Plaintiff and the Board. See Stunzi v. Medlin Motors, Inc., ––– N.C.App. ––––, ––––, 714 S.E.2d 770, 773 (2011) (citation omitted) (“The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.”). Accordingly, we affirm the trial court's denial of Defendants' motion to dismiss Plaintiff's claim of tortious interference with contract.
The American Heritage College dictionary defines “disparage” as “[t]o reduce in esteem or rank.” American Heritage College Dictionary 400 (3d ed.1997).
DISMISSED IN PART; AFFIRMED IN PART. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).