               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-825

                                 Filed: 7 May 2019

Wake County, No. 17 CVS 14445

BRITTNEY MCCULLERS; and RACHEL GOODLING, as Guardian ad Litem for the
minor child BRI’NAJASHA MCCULLERS, Plaintiffs,

              v.

TAYLORIA LEWIS, in her individual capacity, and MICHAEL AYODELE, in his
individual capacity, Defendants.


        Appeal by Defendants from order entered 10 May 2018 by Judge Henry W.

Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 12 March

2019.


        Legal Aid of North Carolina, Inc., by Thomas Holderness, Hannah Guerrier,
        and Janet McIlwain, for Plaintiffs-Appellees.

        The Francis Law Firm, PLLC, by Charles T. Francis and Ruth A. Sheehan, for
        Defendants-Appellants.


        COLLINS, Judge.


        Defendants Tayloria Lewis and Michael Ayodele appeal from an order denying

their motions to dismiss Plaintiffs’ complaint under North Carolina Rule of Civil

Procedure 12 and on estoppel grounds. Defendants contend that the trial court erred

by failing to conclude that (1) Defendants were shielded from suit by the doctrines of

sovereign immunity and governmental immunity and (2) this lawsuit is an improper

collateral attack on the decision of another trial court judge not to allow Defendants
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                                   Opinion of the Court



to be joined in a separate proceeding. We dismiss in part, affirm in part, and reverse

in part.

                                    I. Background

      On 29 November 2017, Plaintiffs filed their complaint in Wake County

Superior Court against Defendants, who both work for the Raleigh Housing Authority

(“RHA”). In their complaint, Plaintiffs seek damages in connection with Defendants’

alleged failure to transfer Plaintiffs to another apartment following various issues

Plaintiffs allege to have experienced at their RHA-administered apartment, and

bring causes of action for (1) intentional infliction of emotional distress, (2) negligent

infliction of emotional distress, and (3) negligence, as well as a claim for (4) punitive

damages.

      On 19 February 2018, Defendants filed motions to dismiss the complaint under

N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), 12(b)(2), and 12(b)(6) (2017), and on estoppel

grounds, as well as an answer to the complaint. Defendants’ motions were heard on

26 April 2018, and on 10 May 2018 the trial court denied Defendants’ motions in full.

Defendants timely appealed to this Court on 8 June 2018.

                             II. Appellate Jurisdiction

      We first address whether this Court has jurisdiction to hear Defendants’

appeal from the trial court’s denials of their motions to dismiss.




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      The trial court’s denials of Defendants’ motions to dismiss are interlocutory

orders from which there is generally no right of immediate appeal. Goldston v. Am.

Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, the North

Carolina General Statutes set forth certain circumstances in which litigants like

Defendants who are subject to an interlocutory order may immediately appeal,

including when an interlocutory order “[a]ffects a substantial right,” N.C. Gen. Stat.

§§ 1-277(a) (2017), 7A-27(b)(3)(a) (2017), or makes an adverse ruling as to personal

jurisdiction, N.C. Gen. Stat. § 1-277(b) (2017). North Carolina Rule of Appellate

Procedure 28(b) sets forth the required contents for an appellant’s brief, including the

requirement of stating the grounds for appellate review, and specifically sets forth

that “[w]hen an appeal is interlocutory, the statement [of grounds for appellate

review] must contain sufficient facts and argument to support appellate review on

the ground that the challenged order affects a substantial right.” N.C. R. App. P.

28(b)(4) (2018).

      Defendants made motions to dismiss the complaint under Rules 12(b)(1) (lack

of subject matter jurisdiction), 12(b)(2) (lack of personal jurisdiction), and 12(b)(6)

(failure to state a claim upon which relief can be granted), as well as on estoppel

grounds, all of which were denied by the trial court in its interlocutory order. But as

a threshold matter, the statement of the grounds for appellate review in Defendants’

brief only argues that the trial court’s denial of its Rule 12(b)(2) motion affects a



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substantial right. Defendants thus fail to satisfy their burden under Appellate Rule

28(b) as to all but their Rule 12(b)(2) argument, which renders Defendants’ appeal of

the denial of their Rule 12(b)(1), Rule 12(b)(6), and estoppel motions all subject to

dismissal. See Bezzek v. Bezzek, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2019 N.C.

App. LEXIS 121, *3 (2019) (“When an appeal is interlocutory and not certified for

appellate review pursuant to Rule 54(b), the appellant must include in the statement

of grounds for appellate review sufficient facts and argument to support appellate

review on the ground that the challenged order affects a substantial right. Otherwise,

the appeal is subject to dismissal.”).

      Even had Defendants’ brief complied with Appellate Rule 28(b), their appeal

of the denial of their Rule 12(b)(1), 12(b)(6), and estoppel motions would still be

dismissed. Regarding the estoppel motion, the denial of a motion to dismiss affects a

substantial right when the motion to dismiss “makes a colorable assertion that the

claim is barred under the doctrine of collateral estoppel.” Fox v. Johnson, 243 N.C.

App. 274, 281, 777 S.E.2d 314, 321 (2015). Here, Defendants nowhere asserted that

the prior action upon which they base their estoppel motion has reached final

judgment on the merits, and as such, Defendants failed to make the colorable

assertion necessary to claim that the denial of their estoppel motion affects a

substantial right. See Bishop v. Cty. of Macon, 250 N.C. App. 519, 523, 794 S.E.2d

542, 547 (2016) (elements of collateral estoppel, including “a prior suit resulting in a



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final judgment on the merits”). The trial court’s denial of Defendants’ estoppel motion

is therefore interlocutory and not appealable, and Defendants’ appeal thereof is

accordingly dismissed.

      This Court’s decision in Can Am South, LLC v. State, 234 N.C. App. 119, 759

S.E.2d 304 (2014), is instructive regarding the Rule 12 motions. In Can Am, as here,

the defendants moved to dismiss the plaintiff’s claims under Rules 12(b)(1) and (2),

but not under Rule 12(b)(6), “based on the defense of sovereign immunity,” and moved

to dismiss under Rule 12(b)(6) “for failure of the complaint to adequately plead.” Id.

at 122, 759 S.E.2d at 307. The Can Am Court dismissed the appeal because the denial

of the defendants’ Rule 12(b)(6) motion “involve[d] neither a substantial right under

section 1-277(a) nor an adverse ruling as to personal jurisdiction under section 1-

277(b), and thus is not immediately appealable[.]” Id. at 124, 759 S.E.2d at 308.

Concerning the sovereign-immunity-based motions, the Can Am Court said that “[a]

denial of a Rule 12(b)(1) motion based on sovereign immunity does not affect a

substantial right [and is] not immediately appealable under section 1-277(a),” but

that “denial of a Rule 12(b)(2) motion premised on sovereign immunity constitutes an

adverse ruling on personal jurisdiction and is therefore immediately appealable

under section 1-277(b).” Id. at 122-24, 759 S.E.2d at 307-08 (citations omitted).

      Here, following Can Am, Defendants’ appeal of the denials of their Rule

12(b)(1) and Rule 12(b)(6) motions to dismiss are not immediately appealable and



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thus not properly before us, and are dismissed. However, as Defendants correctly

argue, the denial of their Rule 12(b)(2) motion to dismiss is an adverse ruling on

personal jurisdiction. Thus Defendants’ appeal thereof is properly before us pursuant

to N.C. Gen. Stat. § 1-277(b) and we will determine whether the trial court erred in

denying that motion.

                                   III. Standard of Review

       “The standard of review to be applied by a trial court in deciding a motion

under Rule 12(b)(2) depends upon the procedural context confronting the court.”

Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 693, 611

S.E.2d 179, 182 (2005) (discussing various procedural contexts).                           “[U]pon a

defendant’s motion to dismiss for lack of personal jurisdiction, the plaintiff bears the

burden of making out a prima facie case that jurisdiction exists.” Bauer v. Douglas

Aquatics, Inc., 207 N.C. App. 65, 68, 698 S.E.2d 757, 761 (2010) (internal citation

omitted). Where, as here, the defendant “supplements his motion to dismiss with an

affidavit or other supporting evidence,”1 the plaintiff cannot rest on the unverified

allegations in the complaint; rather, the plaintiff “must respond by affidavit or



       1  Defendants’ memorandum in support of their motions to dismiss appended a number of
exhibits, most notably “job description[s]” describing the duties of those who hold the positions at RHA
that Defendants allegedly held. The record does not reflect any objection by Plaintiffs to Defendants’
submission of these documents, or to any use thereof, and Plaintiffs themselves cite to these documents
in their appellate brief in describing Defendants’ duties at RHA. As such, any argument that these
documents do not accurately describe Defendants’ duties at RHA is waived, Inspirational Network,
Inc. v. Combs, 131 N.C. App. 231, 238-39, 506 S.E.2d 754, 759-60 (1998), and we presume that the trial
court considered these documents as accurately describing Defendants’ duties.

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otherwise . . . setting forth specific facts showing that the court has [personal]

jurisdiction.” Banc of Am., 169 N.C. App. at 693-94, 611 S.E.2d at 182-83; Bauer, 207

N.C. App. at 69, 698 S.E.2d at 761 (internal quotation marks, brackets, and citation

omitted). If the plaintiff offers no evidence in response, the court considers (1) any

allegations in the complaint that are not controverted by the defendant’s evidence

and (2) all facts in the defendant’s evidence, which are uncontroverted because of the

plaintiff’s failure to offer evidence in response (here, the “Trial Record”). Banc of Am.,

169 N.C. App. at 693-94, 611 S.E.2d at 183.

      Generally, when this Court reviews a trial court’s denial of a Rule 12(b)(2)

motion to dismiss, it considers whether the trial court’s findings of fact are supported

by competent evidence in the record; if so, the findings of fact are conclusive on

appeal. Inspirational Network, 131 N.C. App. at 235, 506 S.E.2d at 758. Under N.C.

Gen. Stat. § 1A-1, Rule 52(a)(2) (2017), however, the trial court is not required to

make specific findings of fact unless a party so requests. Banc of Am., 169 N.C. App.

at 694, 611 S.E.2d at 183. Where, as here, the record contains no indication that the

parties requested that the trial court make specific findings of fact, and the order

appealed from contains no findings, we presume that the trial court made factual

findings sufficient to support its ruling, and it is this Court’s task to review the record

to determine whether it contains evidence that would support the trial court’s legal

conclusions, Banc of Am., 169 N.C. App. at 695, 611 S.E.2d at 183, and to review the



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trial court’s legal conclusions de novo, Lulla v. Effective Minds, LLC, 184 N.C. App.

274, 278, 646 S.E.2d 129, 133 (2007).

                                     III. Analysis

      In their Rule 12(b)(2) motion to dismiss, Defendants state, in relevant part,

that the trial court “lacks . . . personal jurisdiction over them on the basis that they

are or were public employees or public officials at all times pertinent to this action

and [were] therefore cloaked with sovereign or governmental immunity.” By denying

this motion, the trial court implicitly found facts supporting its implicit general

conclusion that Defendants were subject to personal jurisdiction, and its implicit

specific conclusion that Defendants could not shield themselves from suit via the

doctrines of sovereign or governmental immunity.

      As a technical matter, neither doctrine can itself protect Defendants, since

sovereign immunity and governmental immunity only apply in actions brought

against state and local governments, respectively, and not in actions brought against

individuals like Defendants. See Wray v. City of Greensboro, 370 N.C. 41, 47-48, 802

S.E.2d 894, 898-99 (2017) (describing sovereign and governmental immunity). But

Defendants’ Rule 12(b)(2) motion claims they are immune by virtue of their claimed




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status as “public officials,” which refers to a related doctrine known as public official

immunity.2

        Public official immunity is a “‘derivative form’ of governmental immunity” that

insulates a public official from personal liability for mere negligence in the

performance of his duties unless his alleged actions were malicious or corrupt or fell

outside and beyond the scope of his duties. Fullwood v. Barnes, 250 N.C. App. 31, 38,

792 S.E.2d 545, 550 (2016) (citation omitted); Schlossberg v. Goins, 141 N.C. App.

436, 445, 540 S.E.2d 49, 56 (2000).

        This definition is dispositive as to one aspect of this case. Since public official

immunity may only insulate public officials from allegations of mere negligence, only

those of Plaintiffs’ causes of action sounding in negligence come within the doctrine’s

reach. Accordingly, we affirm the trial court’s denial of Defendants’ motion to dismiss

Plaintiffs’ first cause of action for intentional infliction of emotional distress, which is

an intentional tort claim. See Hawkins v. State, 117 N.C. App. 615, 630, 453 S.E.2d

233, 242 (1995) (affirming trial court’s denial of motion to dismiss intentional

infliction of emotional distress claim on public official immunity grounds). Moreover,

we also affirm the trial court’s denial of the motion to dismiss Plaintiffs’ fourth cause



        2  Given the close relationship between the governmental immunity doctrine and the public
official immunity doctrine, Fullwood, 250 N.C. App. at 38, 792 S.E.2d at 550 (“The defense of public
official immunity is a ‘derivative form’ of governmental immunity” (citation omitted)), the fact that
Defendants alleged their status as “public officials” in the text of the motion, and the fact that Plaintiffs
raised no objection in their brief, N.C. R. App. P. 28(a), we consider Defendants’ Rule 12(b)(2) motion
to have stated a defense under the public official immunity doctrine.

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of action for punitive damages, because if Plaintiffs are successful with their

intentional infliction of emotional distress claim, they may also establish a right to

punitive damages. See Thompson v. Town of Dallas, 142 N.C. App. 651, 656-57, 543

S.E.2d 901, 905-06 (2001) (affirming denial of summary judgment motion claim

seeking relief from punitive damages cause of action brought by public official sued

in his individual capacity who raised public official immunity as a defense).

       Regarding Plaintiffs’ second and third causes of action, for negligent infliction

of emotional distress and negligence respectively, we must review the Trial Record to

determine whether it supports a conclusion that Defendants (1) were not public

officials (i.e., were mere public employees), (2) acted outside and beyond the scope of

their official authority, or (3) acted with malice or corruption.

       We address each element in turn.

                                    a. Public Officials

       Although public officials may not be held individually liable for mere

negligence in actions taken without malice or corruption and within the scope of their

duties, public employees may be held individually liable for such actions. Isenhour v.

Hutto, 350 N.C. 601, 608-10, 517 S.E.2d 121, 127 (1999) (quotation marks and citation

omitted).

       Our Supreme Court has “recognized several basic distinctions between a public

official and a public employee, including: (1) a public office is a position created by the



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constitution or statutes; (2) a public official exercises a portion of the sovereign power;

and (3) a public official exercises discretion, while public employees perform

ministerial duties.” Id. at 610, 517 S.E.2d at 127. Courts applying this framework

have recently held that a defendant seeking to establish public official immunity

must demonstrate that all three of the Isenhour factors are present. Leonard v. Bell,

___ N.C. App. ___, ___, 803 S.E.2d 445, 453 (2017) (“Because we hold that defendants’

positions are not created by statute, we need not address the remaining elements to

reach the conclusion that defendants are not public officials entitled to immunity.”).

      We have also noted that, in addition to the Isenhour factors, public officials

also are often required to take an oath of office, while a public employee is not

required to do so. Fraley v. Griffin, 217 N.C. App. 624, 627, 720 S.E.2d 694, 696

(2011). But courts considering claims of public official immunity have made clear

that, unlike the Isenhour factors, an oath of office is not “absolutely necessary[.]”

Baker v. Smith, 224 N.C. App. 423, 431 n.5, 737 S.E.2d 144, 149 n.5 (2012).

                   1. Position Created by Constitution or Statute

      “A position is considered created by statute when the officer’s position ha[s] a

clear statutory basis or the officer ha[s] been delegated a statutory duty by a person

or organization created by statute or the Constitution.” Id. at 428, 737 S.E.2d at 148

(internal quotation marks, citations, and emphasis omitted).




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      Defendants argue that their positions are “created by” N.C. Gen. Stat. § 157

(2017), but point to no language in our Constitution or any statute expressly creating

their positions. Defendants also argue that they have been delegated statutory duties

by RHA,3 which is statutorily authorized to (1) “employ . . . such other officers, agents,

and employees, permanent and temporary, as it may require” and (2) “delegate to one

or more of its agents or employees such powers or duties as it may deem proper.” N.C.

Gen. Stat. § 157-5(e); see also N.C. Gen. Stat. § 157-9(a) (authorizing RHA to “exercise

any or all of the powers herein conferred upon it, either generally or with respect to

any specific housing project or projects, though or by an agent or agents which it may

designate”).

      Our case law makes clear that where a statute expressly creates the authority

to delegate a duty, a person or organization who is delegated and performs the duty

on behalf of the person or organization in whom the statute vests the authority to

delegate passes the first the Isenhour factor. Baker, 224 N.C. App. at 428-30, 737

S.E.2d at 148-49 (holding that where the relevant statute (1) gave the

constitutionally-created sheriff the duty to take “care and custody of the jail” and (2)

provided the sheriff with authority to “appoint a deputy or employ others to assist

him in performing his official duties[,]” an assistant jailer’s “position [was] created by

[the North Carolina] Constitution” (emphasis omitted)); Hobbs v. N.C. Dep’t of Hum.



      3   Plaintiffs concede that RHA is an organization created by statute.

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Res., 135 N.C. App. 412, 421, 520 S.E.2d 595, 602 (1999) (holding that because the

relevant statute gave the director of social services the authority “to delegate to one

or more members of his staff the authority to act as his representative,” social workers

were acting as public officials for public official immunity purposes (citation

omitted)). In their brief, Plaintiffs concede that N.C. Gen. Stat. § 157-5(e) “allows a

housing authority to delegate its powers and duties to one or more of its agents,” but

argue that “it does not require that all employees . . . actually receive any delegated

duties.”

       The Trial Record shows that many of Defendants’ duties were created by N.C.

Gen. Stat. § 157, and must therefore have been delegated them by RHA. For example,

N.C. Gen. Stat. § 157-9 empowers the RHA to “prepare, carry out and operate housing

projects”4 and to “manage as agent of any city or municipality . . . any housing project

constructed or owned by such city.”            N.C. Gen. Stat. § 157-9(a).         Exhibit 3 to

Defendants’ memorandum in support of their motion to dismiss describes Lewis’

duties as including, inter alia, “[p]lann[ing], direct[ing], and coordinat[ing] the work

of [subordinates] in facilitating the orderly management and operations of all housing

units” and “[d]evelop[ing] and implement[ing] management plans,” and Exhibit 4

describes Ayodele’s duties as including, inter alia, “managing one or more public



       4 “Housing project” is statutorily defined as including “all real and personal property” and
“buildings” “constructed [inter alia] [t]o provide safe and sanitary dwelling accommodations” for
persons of modest incomes. N.C. Gen. Stat. § 157-3(12).

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housing and/or affordable market rate communities” and “overall management of [a

public housing and/or affordable market rate community] including planning,

budgeting, marketing, and fiscal management.” Such job descriptions parrot the

duties expressly granted to RHA to operate and manage housing projects, which

Plaintiffs concede RHA was authorized to delegate by statute.

      The significant overlap between RHA’s delegable duties and Defendants’

duties as described in Exhibits 3 and 4—which Plaintiffs did not contest with their

own proffer of evidence, and which the uncontroverted allegations of Plaintiffs’

complaint do not call into question—leads us to conclude that Defendants held

positions created by statute.

                  2. Exercise of a Portion of the Sovereign Power

      While the contours of what the sovereign power includes are not clearly defined

by our case law, it is evident that a defendant claiming themself a public official for

immunity purposes must show that they have exercised a portion of some power that

only the sovereign may exercise, as granted to the sovereign by either the

Constitution or a statute. Compare Baker, 224 N.C. App. at 430, 737 S.E.2d at 149

(holding that an assistant jailer exercises a portion of the sovereign power “by

detaining misdemeanants and those awaiting trial in the jail”), with Mullis v.

Sechrest, 126 N.C. App. 91, 98, 484 S.E.2d 423, 427 (1997) (denying a public school

teacher immunity “because his duties at the time the alleged negligence occurred are



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not considered in the eyes of the law to involve the exercise of the sovereign power”),

rev’d on other grounds, 347 N.C. 548, 495 S.E.2d 721 (1998); see also Leonard, ___

N.C. App. at ___, 803 S.E.2d at 453 (noting that “there is nothing uniquely sovereign

about the health services provided by [the defendant, a physician,] to plaintiff in this

case, except that plaintiff was an inmate” in a state prison).

      Plaintiffs concede that the “sovereign powers associated with housing

authorities are set forth in N.C. Gen. Stat. § 157-9.” See N.C. Gen. Stat. § 157-9

(listing the “public powers” of housing authorities like RHA). As noted above, the

Trial Record demonstrates significant overlap between the N.C. Gen. Stat. § 157-9

sovereign powers and the duties delegated to Defendants. Plaintiffs’ argument that

“there is little overlap between the powers listed and Defendants’ duties” is actually

a concession regarding the second Isenhour factor, since any overlap between RHA’s

public powers and the delegable duties performed by Defendants on RHA’s behalf

compels a conclusion that Defendants exercised “a portion of the sovereign power.”

Isenhour, 350 N.C. at 610, 517 S.E.2d at 127 (1999) (emphasis added); see also State

v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965) (“the incumbent of an office

shall involve the exercise of some portion of the sovereign power”) (emphasis added)).

      We accordingly conclude that Defendants exercised a portion of the sovereign

power.

                                      3. Discretion



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      Our Supreme Court has said that public officials “exercise a certain amount of

discretion, while employees perform ministerial duties. Discretionary acts are those

requiring personal deliberation, decision and judgment; duties are ministerial when

they are absolute, certain, and imperative, involving merely the execution of a specific

duty arising from fixed and designated facts.” Meyer v. Walls, 347 N.C. 97, 113, 489

S.E.2d 880, 889 (1997) (internal quotation marks and citations omitted). The decision

making involved must be substantial, as “a mere employee doing a mechanical job,

. . . must exercise some sort of judgment in plying his shovel or driving his truck --

but he is in no sense invested with a discretion which attends a public officer in the

discharge of public or governmental duties, not ministerial in their character.” Miller

v. Jones, 224 N.C. 783, 787, 32 S.E.2d 594, 597 (1945).

      The Trial Record shows that Defendants were tasked with, inter alia,

“independently” (1) planning, directing, and coordinating the management of RHA

housing units, (2) developing, implementing, and executing management plans, (3)

formulating various policies and procedures, (4) evaluating overall program and

employee performance, (5) recommending and preparing budgets, (6) inspecting

properties for conformance with applicable regulations, (7) planning the work of and

supervising staff, (8) analyzing rents, (9) counseling residents, and (10) resolving

disputes involving residents, duties which led RHA to seek applicants with

experience in “management” and “decision making.”



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        Plaintiffs list certain of Defendants’ duties that arguably require little

judgment, and argue that Defendants “executed ministerial tasks[.]”                            But as

Plaintiffs note, we cannot single out a handful of Defendants’ duties in deciding

whether they require discretion, but must consider Defendants’ duties as a whole.

Baker, 224 N.C. App. at 431, 737 S.E.2d. at 150. Moreover, Plaintiffs’ argument

conflicts with the fact that their complaint, distilled to its essence, alleges that

Defendants harmed Plaintiffs by refusing or failing to exercise their discretionary

authority to move Plaintiffs to another apartment: Plaintiffs allege therein that

Defendants “refused,” “ignored,” or “denied” Plaintiffs’ requests for accommodation.

Such allegations speak the language of discretion. The Trial Record contains nothing

tending to show that Defendants had any specific, fixed duty to transfer Plaintiffs

such that Defendants’ denials of Plaintiffs’ requests constituted refusals or failures

to execute already-made decisions, and any effort to hold Defendants liable for

refusing or failing to make a decision that was not theirs to make clearly must fail.

        We accordingly conclude that Defendants’ positions were discretionary in

nature, and that Defendants were public officials in the meaning of Isenhour.5

                                       b. Scope of Authority




        5The Trial Record contains no clear indication of whether Defendants took an oath of office or
not. But since this consideration is not dispositive to the Isenhour public-official analysis, see Baker,
224 N.C. App. at 431 n.5, 737 S.E.2d at 149 n.5, and we find the other Isenhour factors support our
conclusion, we need not analyze this consideration.

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      Even as public officials, sovereign immunity will not shield Defendants from

suit for actions they took that fell outside and beyond the scope of their official

authority.

      But the Trial Record contains no evidence that Defendants exceeded their

authority in this case. Plaintiffs’ conclusory allegation that “[u]pon information and

belief, [Defendants] also exceeded their authority” is insufficient as a matter of

pleading to withstand Defendants’ motion to dismiss. Meyer, 347 N.C. at 114, 489

S.E.2d at 890 (noting that conclusory allegations are insufficient to withstand a

motion to dismiss, and that “[t]he facts alleged in the complaint must support such a

conclusion”). The complaint elsewhere alleges that Defendants were public housing

managers at RHA, and as discussed above, the thrust of Plaintiffs’ argument is that

Defendants harmed Plaintiffs by refusing or failing to exercise the discretionary

authority Defendants had, as RHA public housing managers, to move Plaintiffs to

another apartment. Without a clear duty to exercise that authority, which the Trial

Record does not reflect, the trial court lacked evidence to conclude that Defendants

acted outside and beyond the scope of their authority by not moving Plaintiffs to

another apartment. See Clouse v. Gordon, 115 N.C. App. 500, 509, 445 S.E.2d 428,

433 (1994) (“the law is such that mere inaction does not constitute negligence in the

absence of a duty to act” (internal quotation marks and citations omitted)).




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      We accordingly conclude that the Trial Record does not support a conclusion

that Defendants acted outside and beyond the scope of their official authority.

                                c. Malice or Corruption

      Finally, even as public officials acting within the scope of their official

authority, sovereign immunity will not shield Defendants from suit for actions they

took which were malicious or corrupt. Plaintiffs make no allegation that Defendants’

actions or inactions were corrupt, and we accordingly analyze only whether the Trial

Record contains evidence that Defendants’ actions or inactions were malicious.

      “A malicious act is one which is: (1) done wantonly, (2) contrary to the actor’s

duty, and (3) intended to be injurious to another.” Fullwood, 250 N.C. App. at 38, 792

S.E.2d at 550 (internal quotation marks and citations omitted). This Court has said

that public officials are presumed to have executed their duties in good faith, absent

substantial evidence to the contrary:

             It is well settled that absent evidence to the contrary, it will
             always be presumed that public officials will discharge
             their duties in good faith and exercise their powers in
             accord with the spirit and purpose of the law. This
             presumption places a heavy burden on the party
             challenging the validity of public officials actions to
             overcome this presumption by competent and substantial
             evidence. Moreover, [e]vidence offered to meet or rebut the
             presumption of good faith must be sufficient by virtue of its
             reasonableness, not by mere supposition. It must be
             factual, not hypothetical; supported by fact, not by surmise.




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                                 MCCULLERS V. LEWIS

                                   Opinion of the Court



Strickland v. Hedrick, 194 N.C. App. 1, 10-11, 669 S.E.2d 61, 68 (2008) (internal

quotation marks and citations omitted).

      Beyond a conclusory allegation that Defendants “acted with malice,” which is

insufficient standing alone to withstand Defendants’ motion to dismiss, Meyer, 347

N.C. at 114, 489 S.E.2d at 890, the complaint alleges only that Defendants (1) “acted

with . . . reckless indifference to the [Plaintiffs’] rights” and (2) refused or failed to

exercise their discretionary authority to transfer Plaintiffs to another apartment,

which Plaintiffs allege was “intended . . . to cause [Plaintiffs] extreme emotional

distress.” This Court has made clear that a plaintiff may not satisfy its burden of

pleading malice by alleging the defendant was recklessly indifferent. Schlossberg v.

Goins, 141 N.C. App. 436, 446, 540 S.E.2d 49, 56 (2000) (citations omitted). And

Plaintiffs’ other conclusory allegations that Defendants’ actions or inactions were

intended to cause them harm are insufficient to overcome the presumption that public

officials act in good faith. See Mitchell v. Pruden, 251 N.C. App. 554, 561-62, 796

S.E.2d 77, 83 (2017) (noting the plaintiffs’ “bare, conclusory allegations that

defendant acted with malice” in holding that, “[b]ecause we presume that defendant

discharged his duties in good faith and exercised his power in accordance with the

spirit and purpose of the law and plaintiffs have not shown any evidence to the

contrary, we hold that the [] complaint failed to allege facts which would support a

legal conclusion that defendant acted with malice”).



                                          - 20 -
                                 MCCULLERS V. LEWIS

                                   Opinion of the Court



      In sum, we conclude that the Trial Record does not support a conclusion that

Defendants acted with malice or corruption.

                                    IV. Conclusion

      Because we conclude that Defendants (1) were not mere public employees, (2)

did not act outside and beyond the scope of their official authority, and (3) did not act

with malice or corruption, we conclude that Defendants were shielded from Plaintiffs’

causes of action sounding in negligence by the public official immunity doctrine, and

the trial court erred in denying Defendants’ Rule 12(b)(2) motion to dismiss Plaintiffs’

second and third causes of action for lack of personal jurisdiction.

      Defendants’ appeal of the denial of their Rule 12(b)(1), 12(b)(6), and estoppel

motions is dismissed, the denial of Defendants’ Rule 12(b)(2) motion is affirmed as to

Plaintiffs’ first and fourth causes of action, and the denial of Defendants’ Rule 12(b)(2)

motion is reversed as to Plaintiffs’ second and third causes of action. This case is

remanded to the trial court for entry of an order dismissing Plaintiffs’ second and

third causes of action and for further proceedings consistent with this opinion.

      DISMISSED IN PART, AFFIRMED IN PART, AND REVERSED IN PART.

      Chief Judge MCGEE and Judge DIETZ concur.




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