                     MARK W. WHITE v. ROBERT J. TREW

                                    No. 33PA12

                              (Filed 25 January 2013)

Immunity — sovereign immunity — libel — ambiguous complaint — suit in
    official or individual capacity

            The trial court erred in a libel action by denying defendant’s motion to
      dismiss plaintiff’s claim because the complaint indicated that plaintiff filed
      suit against defendant in his official, rather than individual capacity, and
      thus, sovereign immunity barred plaintiff’s claim. When a complaint does
      not specify the capacity in which a public official is being sued for actions
      taken in the course and scope of his employment, the court will presume that
      the public official is being sued only in his official capacity.


      On discretionary review pursuant to N.C.G.S. ' 7A-31 of a unanimous

decision of the Court of Appeals, ___ N.C. App. ___, 720 S.E.2d 713 (2011), affirming

an order denying defendant’s motion to dismiss entered on 22 December 2010 by

Judge W. Osmond Smith, III in Superior Court, Wake County.            Heard in the

Supreme Court on 16 October 2012.


      Stevens Martin Vaughn & Tadych, PLLC, by C. Amanda Martin; and Everett
      Gaskins Hancock LLP, by James M. Hash, for plaintiff-appellee.

      Roy Cooper, Attorney General, by Thomas J. Ziko, Senior Deputy Attorney
      General, and Brian R. Berman, Assistant Attorney General, for defendant-
      appellant.

      Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by C. Matthew Keen, for
      North Carolina Associated Industries, Inc., amicus curiae.


      JACKSON, Justice.
                                     WHITE V. TREW

                                    Opinion of the Court



      In this appeal we consider whether sovereign immunity bars a libel suit by a

tenured public university professor against his department head for an unfavorable

annual review when the complaint does not specify whether the department head is

being sued in his official or individual capacity. We hold that when the complaint

does not specify the capacity in which a public official is being sued for actions

taken in the course and scope of his employment, we will presume that the public

official is being sued only in his official capacity.      Accordingly, we reverse the

decision of the Court of Appeals.


      During the 2006-2007 academic year, defendant Robert J. Trew was head of

the Department of Electrical and Computer Engineering at North Carolina State

University (“N.C. State”).    Plaintiff Mark W. White was a tenured associate

professor in the department. At that time N.C. State required that every faculty

member receive an annual review. N.C. State, Reg. 05.20.3(1) (2005). Specifically,

the University’s regulation stated: “It is the responsibility of each department head

to review the performance of each faculty member and to keep the appropriate dean

apprised of the status of the reviews.” Id. The regulation further provided that

when writing the annual review, the department head “may consult with the

tenured faculty of the department and may seek such other advice as the

department head deems appropriate in the conduct of the review.” Id. 05.20.3(2.3)

(2005). The regulation also stated: “The department head will provide a written

summary of the review and the faculty member may provide a written response.

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                                  Opinion of the Court



The written summary and any response will become part of the personnel file.” Id.

05.20.3(2.4) (2005). Once it became part of the personnel file, this information was

“open for inspection and examination” by “any individual in the chain of

administrative authority above” the faculty member. 25 NCAC 1C .0304(d) (June

2008); see also N.C.G.S. § 126-24 (2011).


       In accordance with N.C. State’s regulations, defendant, in his role as

department head, wrote an annual review of plaintiff for the 2006-2007 academic

year. In the annual review defendant concluded that plaintiff did not meet the

department’s expectations and had “engaged in extremely disruptive behavior and

conduct.” Defendant also listed “[s]pecific instances of unprofessional behavior” by

plaintiff. Defendant shared the annual review with College of Engineering Dean

Louis Martin-Vega and N.C. State’s in-house counsel.


       On 17 September 2007, plaintiff received a copy of the annual review. In

response, plaintiff sent a “rebuttal letter” to Dean Martin-Vega, demanding that the

dean correct alleged “falsities” in the annual review. Dean Martin-Vega took no

action. As a result, on 14 November 2007, plaintiff filed a university grievance

petition pursuant to section 126-25 of the North Carolina General Statutes, alleging

that defendant had made “highly inaccurate and misleading” statements in the

annual review and demanding that the review be corrected or removed from

plaintiff’s personnel file.


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                                  Opinion of the Court



      Subsequently, on 11 September 2008, while the grievance process was on

hold, plaintiff filed a complaint in Superior Court, Wake County, alleging that the

annual review “contained numerous false and defamatory statements.” Plaintiff

alleged that these “statements ha[d] been published and made available to faculty

and administrators at NCSU.”       Plaintiff further alleged that “defendant’s false

accusations about the plaintiff . . . were willful, unjustified and malicious, and were

motivated by personal hatred, spite or ill-will vis-à-vis the plaintiff.” On 13 October

2008, defendant filed an answer and motion to dismiss pursuant to various

provisions of Rule 12(b) of the North Carolina Rules of Civil Procedure. Defendant

denied the material allegations of the complaint and asserted a number of defenses,

including qualified privilege and sovereign immunity.       After a hearing the trial

court denied defendant’s motion to dismiss on 22 December 2010.


      Defendant appealed to the Court of Appeals, which unanimously affirmed the

trial court’s order denying defendant’s motion to dismiss. White v. Trew, __ N.C.

App. __, __, 720 S.E.2d 713, 720 (2011).         The court concluded that sovereign

immunity did not bar plaintiff’s claim because “plaintiff sought to sue defendant in

his individual capacity and drafted the complaint in such a way that clearly

indicated this intent.” Id. at __, 720 S.E.2d at 718. The court also held that “giving

the review to the Dean and the staff of the office of general counsel constitute[d]

publication for the purposes of libel.” Id. at __, 720 S.E.2d at 720. We allowed

defendant’s petition for discretionary review.

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                                  Opinion of the Court



        Defendant argues that the trial court erred by denying his motion to dismiss

because the complaint indicates that plaintiff filed suit against defendant in his

official, rather than individual, capacity, and thus, sovereign immunity bars

plaintiff’s claim.   Previously we have not set forth the appropriate standard of

review for a trial court’s denial of a motion to dismiss that raises sovereign

immunity as grounds for dismissal; however, we have reviewed de novo a trial

court’s denial of other Rule 12 motions to dismiss that also were immediately

appealable. See Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007).

Moreover, although not explicitly stated previously, it is apparent that we have

employed a de novo standard of review in other cases involving sovereign immunity.

See, e.g., Meyer v. Walls, 347 N.C. 97, 104-14, 489 S.E.2d 880, 883-90 (1997);

Harwood v. Johnson, 326 N.C. 231, 237-38, 388 S.E.2d 439, 442-43 (1990).

Therefore, we review the trial court’s denial of defendant’s motion to dismiss de

novo.


        It is well settled that pursuant to “the doctrine of sovereign immunity, the

State is immune from suit absent waiver of immunity.” Meyer, 347 N.C. at 104, 489

S.E.2d at 884. The North Carolina Torts Claims Act provides a limited waiver of

immunity and authorizes recovery against the State for negligent acts of its

“officer[s], employee[s], involuntary servant[s] or agent[s].” N.C.G.S. § 143-291(a)

(2011). But intentional acts of these individuals are not compensable. Collins v.

N.C. Parole Comm’n, 344 N.C. 179, 183, 473 S.E.2d 1, 3 (1996) (citing Jenkins v.

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                                    Opinion of the Court



N.C. Dep’t of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956)). A suit against a

public official in his official capacity “is a suit against the State.” Harwood, 326

N.C. at 238, 388 S.E.2d at 443. Therefore, sovereign immunity bars an intentional

tort claim against a public official in his official capacity. See id.


       In the case sub judice defendant, as head of the Department of Electrical and

Computer Engineering at N.C. State, a public university position that certainly

requires “deliberation, decision and judgment,” falls within the definition of a public

official.   Meyer, 347 N.C. at 113, 489 S.E.2d at 889 (quotation marks omitted)

(distinguishing a public official who “exercise[s] a certain amount of discretion” from

an employee who “perform[s] ministerial duties” (quotation marks omitted)).

Plaintiff is suing defendant for libel, an intentional tort. See Dobson v. Harris, 352

N.C. 77, 87, 530 S.E.2d 829, 837 (2000) (stating that in a defamation action, “the

[defendant]’s state of mind, motive, or subjective intent is an element of [the]

plaintiff’s claim”). Therefore, plaintiff’s claim is barred by sovereign immunity if it

is one against defendant in his official capacity.


       In Mullis v. Sechrest, 347 N.C. 548, 495 S.E.2d 721 (1998), we considered

whether the “defendant Sechrest [wa]s being sued in his official capacity, individual

capacity, or both” when both the initial and amended complaints “failed to specify in

the caption whether [the] plaintiffs were suing [the] defendant Sechrest in his

individual or official capacity.”   Id. at 551, 495 S.E.2d at 723.       Ultimately, we


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                                   Opinion of the Court



concluded that “[t]aken as a whole, the amended complaint, along with the course of

proceedings . . . indicate[d] an intent by [the] plaintiffs to sue [the] defendant

Sechrest in his official capacity.” Id. at 554, 495 S.E.2d at 725. We recognized that

North Carolina is a notice pleading state and observed that “in order for [the]

defendant Sechrest to have [had] an opportunity to prepare a proper defense, the

pleading should have clearly stated the capacity in which he was being sued.” Id. at

554, 495 S.E.2d at 724. We added:

                     It is a simple matter for attorneys to clarify the
             capacity in which a defendant is being sued. Pleadings
             should indicate in the caption the capacity in which a
             plaintiff intends to hold a defendant liable. For example,
             including the words “in his official capacity” or “in his
             individual capacity” after a defendant’s name obviously
             clarifies the defendant’s status. In addition, the
             allegations as to the extent of liability claimed should
             provide further evidence of capacity. Finally, in the
             prayer for relief, plaintiffs should indicate whether they
             seek to recover damages from the defendant individually
             or as an agent of the governmental entity. These simple
             steps will allow future litigants to avoid problems such as
             the one presented to us by this appeal.

Id. at 554, 495 S.E.2d at 724-25. Given the rationale underlying this language—

namely, affording the defendant proper notice to prepare a defense—and our goal of

avoiding similar uncertainty for future litigants, we conclude that Mullis’s directive

is mandatory, rather than precatory. Therefore, we further conclude that if such

clarity is lacking, we must presume that the defendant is being sued only in his

official capacity. See id. at 552, 495 S.E.2d at 723; see also Warren v. Guilford



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                                   Opinion of the Court



Cnty., 129 N.C. App. 836, 839, 500 S.E.2d 470, 472, disc. rev. denied, 349 N.C. 241,

516 S.E.2d 610 (1998).

      In this case the complaint does not specify whether plaintiff is suing

defendant in his individual or official capacity. The caption does not include the

words “in his official capacity” or “in his individual capacity,” nor do the allegations

“provide further evidence of capacity.” Mullis, 347 N.C. at 554, 495 S.E.2d at 724-

25. In addition, plaintiff does not indicate in the prayer for relief whether he

“seek[s] to recover damages from . . . defendant individually or as an agent of the

governmental entity.” Id. at 554, 495 S.E.2d at 725. Instead, the caption and

prayer for relief merely name “ROBERT J. TREW, Defendant” and “Dr. Trew,”

respectively. Furthermore, the allegations detail actions taken by defendant in his

capacity as department head and make no mention of “individual capacity.”

Because the indicia of capacity mandated by Mullis are absent from the caption,

allegations, and prayer for relief, we must presume that defendant is being sued in

only his official capacity. Consequently, plaintiff’s claim is barred by sovereign

immunity.

      Even if defendant had been sued in his individual capacity, we note that

deference must be paid to the statutory scheme that the General Assembly has put

in place regarding state employees and the documents pertaining to their

employment. The General Statutes mandate that each department of the State—

including public universities—“shall maintain a record of each of its employees.”


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                                  Opinion of the Court



N.C.G.S. § 126-23 (2011). These records are accessible to employee supervisors, and

department heads may, in their discretion, allow others to read the records if doing

so “is essential to maintaining the integrity of such department or to maintaining

the level or quality of services provided by such department.” N.C.G.S. § 126-24. It

is clear that section 126-24 contemplates the circumstances when a department, or

in this case a university, may release otherwise confidential information to the

public in order to “maintain[ ] the integrity of such department or to maintain[ ] the

level or quality of services provided by such department.” Id. However, that is not

the situation we confront in this case. Instead, the question presented is whether

one individual in the employee’s direct chain of command—the dean of the College

of Engineering—may review plaintiff’s performance review and whether the

University’s in-house counsel may be involved in the review as well

      According to these statutory provisions, as well as the regulatory provisions

discussed earlier, defendant, in his capacity as department head, was required to

write and maintain a public record of plaintiff’s official status at N.C. State. See

N.C.G.S. § 126-23; N.C. State, Reg. 05.20.3(1).          The dean of the College of

Engineering had a clear statutory right to review the full contents of that record

pursuant to section 126-24(2) and 25 NCAC 1C .0304(d), as well as a mandate to do

so according to N.C. State, Reg. 05.20.3(1). In addition, we cannot say that it was

unreasonable for defendant to seek guidance from the University’s in-house counsel

given the contentious nature of his relationship with plaintiff. In fact, were we to

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                                   Opinion of the Court



follow plaintiff’s line of reasoning, supervisors in state government effectively would

be prohibited from seeking legal counsel in preparing performance reviews for state

employees without fear of being subjected to a lawsuit for seeking such counsel.

This result is untenable.

        Clearly, requiring defendant to keep information of plaintiff’s allegedly

hostile and aggressive workplace behavior to himself is contrary to the General

Assembly’s statutory and the regulatory directives that flow therefrom. It cannot

be the case that, when state employees have statutory rights and obligations

regarding the maintenance of employee records, communication in conformity with

those rights and obligations constitutes publication for a libel suit.

        As we have determined that plaintiff’s claim is barred by sovereign

immunity, we reverse the decision of the Court of Appeals.

        REVERSED.

        Justice BEASLEY did not participate in the consideration or decision of this

case.




        Justice EDMUNDS dissenting.

        As the majority acknowledges, this Court has never before required that a

complaint designate whether a defendant is being sued as an individual or in his or

her official capacity. See, e.g., Meyer v. Walls, 347 N.C. 97, 110-11, 489 S.E.2d 880,


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                                    WHITE V. TREW

                                 EDMUNDS, J., dissenting



887-88 (1997) (allegations in complaint reviewed to determine capacity in which a

defendant is sued). While I agree that the best practice is for a complaint to be

specific on that point, the Court today mandates what it only suggested yesterday.

See Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724-25 (1998) (advising,

but not requiring, that a complaint state the capacity in which a defendant is being

sued).

         In light of our deferential review of complaints under notice pleading, see,

e.g., Embree Constr. Grp., Inc. v. Rafcor, Inc., 330 N.C. 487, 491, 411 S.E.2d 916,

920 (1992), I believe the complaint provided adequate notice that defendant was

being sued in his individual capacity. For instance, the complaint states that “[t]his

is an action against a natural person.” Thus, when drafted, filed, and served, this

complaint met every pleading requirement set out in the North Carolina Rules of

Civil Procedure and in our cases. Although plaintiff acknowledges that his burden

of proof in a libel action is high, I believe he should have the opportunity to make

his case. If this Court chooses to impose an additional pleading requirement in

future cases of this type, so be it. But I do not believe that plaintiff should lose his

day in court because he was unable to predict what the majority would hold. I

respectfully dissent.

         Justice HUDSON joins in this dissenting opinion.




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