              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA16-611

                                Filed: 18 April 2017

Wake County, No. 15 CVS 10825

JONATHAN PAGE, a minor, by and through his Guardian ad Litem, JOHN M.
McCABE, and LOREE OLIVER, Plaintiffs,

             v.

SHU CHAING, Ph.D., individually and in her individual capacity, and SUSAN
BOWMAN, individually and in her individual capacity, Defendants.


      Appeal by defendants from order entered 7 March 2016 by Judge W. Osmond

Smith III in Wake County Superior Court.              Heard in the Court of Appeals

1 December 2016.


      Abrams & Abrams, P.A., by Douglas B. Abrams, Noah B. Abrams, and Melissa
      N. Abrams, and Raynes McCarty, by Charles Hehmeyer and Martin
      McLaughlin, for plaintiff-appellees.

      Attorney General Joshua H. Stein, by Assistant Attorney General John P.
      Barkley and Special Deputy Attorney General Gerald K. Robbins, for
      defendant-appellants.


      McCULLOUGH, Judge.


      Shu Chaing, Ph.D., and Susan Bowman (together “defendants”) appeal from

an interlocutory order denying their motions to dismiss the case on grounds of public

official immunity. For the following reasons, we dismiss the appeal.

                                 I.       Background
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                                   Opinion of the Court



      Jonathan Page (“juvenile”) and Loree Oliver (“mother”) (together “plaintiffs”)

first filed a complaint in this matter on 10 August 2015. Plaintiffs then filed an

amended complaint on 18 August 2015 (the “first amended complaint”) with the sole

purpose to correct the last name of one of the defendants. In the first amended

complaint, plaintiffs asserted negligence, gross negligence, punitive damages,

negligent infliction of emotional distress, and medical malpractice claims based on

allegations that after juvenile was born to mother on 8 September 2010, defendants,

both North Carolina Department of Health and Human Services employees in the

State Laboratory of Public Health, followed newborn screening procedures that they

knew to be inadequate to evaluate older infants. Plaintiffs allege, in the present case

this failure resulted in a missed diagnosis of a treatable inborn metabolism error in

juvenile that later caused juvenile to suffer a medical emergency, resulting in severe

and permanent brain damage.

      Defendants filed motions to dismiss and motions to strike on 21 October 2015.

Pertinent to this appeal, defendants’ motions to dismiss asserted that the court lacks

subject matter jurisdiction because (1) defendants are being sued in their official

capacity and the State has not waived sovereign immunity, (2) plaintiffs have not

specifically pleaded that the State waived sovereign immunity, and (3) defendants

are public officials and are entitled to all immunities afforded public officials. Notice




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of hearing filed 11 December 2015 indicated defendants’ motions to dismiss would be

heard on 1 February 2016.1

       Prior to the hearing on defendants’ motion to dismiss, plaintiffs filed a motion

to amend the first amended complaint and then filed a notice of hearing on

21 January 2016 indicating the motion to amend would also be heard on

1 February 2016. Plaintiffs then filed an amended motion to amend the first amended

complaint on 29 January 2016. Pertinent to this appeal, the amended motion sought

to insert the words “individually and in her individual capacity” after the names of

each defendant, each time the name of a defendant appeared in the first amended

complaint.

       The motions came on for hearing in Wake County Superior Court before the

Honorable W. Osmond Smith III on 1 February 2016. At the beginning of the hearing,

defendants informed the judge that they were proceeding on their motions to dismiss

on the bases that (1) the court lacked subject matter jurisdiction, Rule 12(b)(1),

because plaintiffs failed to allege in the original complaint and the first amended

complaint in what capacity defendants were being sued and (2) plaintiffs’ failed to

state a claim, Rule 12(b)(6), because there was no duty owed to plaintiffs by

defendants. Defendants withdrew the remainder of their motions to dismiss. In


       1 The notice of hearing actually states the matter will be heard “1 February 2015.” However,
because the notice was filed on 11 December 2015, well after the indicated hearing date, it is obvious
that the hearing date was recorded in error. It appears from the rest of the record that the court
intended to notice a hearing for 1 February 2016.

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response, plaintiffs argued that they believed the amended complaint was sufficient

to show that defendants were being sued in their individual capacities; but in any

event, plaintiffs filed the amended motion to amend the first amended complaint to

address defendants’ confusion and avoid “this kind of hypertechnical argument about

the form of the complaint.” Upon considering the arguments, the court granted

plaintiffs’ amended motion to amend the first amended complaint. The court then

heard and considered arguments on defendants’ motions to dismiss. The court held

the subject matter jurisdiction portion of defendants’ motions to dismiss was moot as

a result of its granting plaintiffs’ motion to amend. The court then denied defendants’

Rule 12(b)(6) motion based on the argument that defendants owed no duty to

plaintiffs.

       On 2 February 2016, the court filed an order allowing plaintiffs’ amended

motion to amend the first amended complaint. That same day, plaintiffs filed the

second amended complaint against defendants individually and in their individual

capacities. Defendants filed separate answers to the second amended complaint on

2 March 2016. On 7 March 2016, the court filed an order denying “each and every of

the Motions to Dismiss by [defendants].”

       Defendants filed notice of appeal from the order denying their motions to

dismiss on 1 April 2016. The notice specifically referenced “motions to dismiss based




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on claims of public official and sovereign immunity under Rule 12(b)(2) and (6) of the

North Carolina Rules of Civil Procedure.”

                                   II.    Discussion

      The sole issue raised on appeal is whether the trial court erred in denying

defendants’ motions to dismiss based on assertions of public official immunity.

Defendants contend they are immune from suit because they are public officials and

not employees. Yet, it appears the trial court never decided that issue below. Thus,

we must first address whether defendants’ arguments are proper for appeal.

      “Typically, the denial of a motion to dismiss is not immediately appealable to

this Court because it is interlocutory in nature.” Reid v. Cole, 187 N.C. App. 261, 263,

652 S.E.2d 718, 719 (2007). “An interlocutory order is one made during the pendency

of an action, which does not dispose of the case, but leaves it for further action by the

trial court in order to settle and determine the entire controversy.” Veazey v. City of

Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).

      In this case, defendants acknowledge that the order denying their motions to

dismiss is interlocutory. Nevertheless, defendants contend that immediate appeal of

the interlocutory order is available pursuant to N.C. Gen. Stat. § 1-277(a) and (b)

because the denial of their motions to dismiss on grounds of public official immunity

affects a substantial right.




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      “[I]mmediate appeal is available from an interlocutory order or judgment

which affects a substantial right.” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d

577, 579 (1999) (quotation marks omitted); see also N.C. Gen. Stat. § 1-277 (2015).

This court has held that,

             “[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). A substantial
             right is affected because “[a] valid claim of immunity is
             more than a defense in a lawsuit; it is in essence immunity
             from suit. Were the case to be erroneously permitted to
             proceed to trial, immunity would be effectively lost.” Slade
             v. Vernon, 110 N.C. App. 422, 425, 429 S.E.2d 744, 746
             (1993), implied overruling based on other grounds, Boyd v.
             Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005).

Farrell v. Transylvania Cnty. Bd. of Educ., 175 N.C. App. 689, 694, 625 S.E.2d 128,

132-33 (2006); see also Royal Oak Concerned Citizens Ass’n v. Brunswick Cnty., 233

N.C. App. 145, 149, 756 S.E.2d 833, 836 (2014) (“As an initial matter, we note that

claims of immunity . . . affect a substantial right for purposes of appellate review.”).

However, this Court has also made it clear that it matters how a motion to dismiss

based on immunity is presented to the court.

      Recently in Murray v. University of North Carolina at Chapel Hill, __ N.C. App.

__, 782 S.E.2d 531 (2016) (Tyson, J. dissenting), this court addressed whether it had

jurisdiction to hear the defendant’s appeal from a denial of a motion to dismiss. In

Murray, this Court explained that the defendant filed a motion to dismiss “in which

defendant asserted that pursuant to Rules 12(b)(1) and/or 12(b)(6) . . . , plaintiff’s

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complaint should be dismissed for ‘mootness, lack of standing, lack of subject matter

jurisdiction, and failure to state a claim upon which relief may be granted.’ ” Id. at__,

782 S.E.2d at 534. When the defendant’s motion came on for hearing, the defendant

argued for the first time that “the complaint should be dismissed pursuant to Rules

12(b)(1) and 12(b)(2) based on the doctrine of sovereign immunity.” Id. at__, 782

S.E.2d at 535. In denying the defendant’s motion, the trial court addressed Rules

12(b)(1) and 12(b)(6), finding “that it possesses subject matter jurisdiction over this

action and that the Plaintiff’s complaint has made allegations sufficient to state a

claim upon which relief may be granted under some legal theory.” Id. at__, 782 S.E.2d

at 535. On appeal from the denial of its motion to dismiss, the defendant argued the

appeal was properly before this Court because the trial court rejected its claim that

the action was barred by sovereign immunity and, therefore, the order affects a

substantial right. Id. at__, 782 S.E.2d at 535. Over dissent, this Court held that it

did not have jurisdiction.

      In so holding, this Court relied on its decision in Can Am South, LLC v. State,

234 N.C. App. 119, 759 S.E.2d 304, disc. review denied, 367 N.C. 791, 766 S.E.2d 624

(2014). As this court explained in Murray,

             [i]n Can Am, the defendants moved to dismiss on sovereign
             immunity grounds under Rule 12(b)(1) for lack of subject
             matter jurisdiction and Rule 12(b)(2) for lack of personal
             jurisdiction, “but notably not Rule 12(b)(6) . . . .” 234 N.C.
             App. at 122, 759 S.E.2d at 307. Although the defendants
             had moved to dismiss for failure to state a claim for relief


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under Rule 12(b)(6), they based their Rule 12(b)(6) motion
on the plaintiff's failure to adequately plead an actual
controversy and not on the sovereign immunity doctrine.
Id. at 123-24, 759 S.E.2d at 308.

This Court held in Can Am that “[h]ad defendants moved
to dismiss based on the defense of sovereign immunity
pursuant to Rule 12(b)(6), we would be bound by the
longstanding rule that the denial of such a motion affects a
substantial right and is immediately appealable under
section 1-277(a).” Id. at 122, 759 S.E.2d at 307. See also
Green v. Kearney, 203 N.C. App. 260, 266, 690 S.E.2d 755,
761 (2010) (“This Court has held that a denial of a Rule
12(b)(6) motion to dismiss on the basis of sovereign
immunity affects a substantial right and is immediately
appealable.”), aff’d per curiam, 367 N.C. 113, 748 S.E.2d
143 (2013). However, since the defendants had only based
their sovereign immunity defense on a lack of either
subject matter jurisdiction under Rule 12(b)(1) or personal
jurisdiction under Rule 12(b)(2), that longstanding rule
was inapplicable. Can Am, 234 N.C. App. at 122, 759
S.E.2d at 307.

The Court next concluded that the defendants’ Rule
12(b)(1) motion could not justify an interlocutory appeal
because “[a] denial of a Rule 12(b)(1) motion based on
sovereign immunity does not affect a substantial right
[and] is therefore not immediately appealable under
section 1-277(a).” Id. at 122, 759 S.E.2d at 307. See also
Green, 203 N.C. App. at 265-66, 690 S.E.2d at 760 (“[T]his
Court has declined to address interlocutory appeals of a
lower court’s denial of a Rule 12(b)(1) motion to dismiss
despite the movant’s reliance upon the doctrine of
sovereign immunity.”); Meherrin Indian Tribe v. Lewis, 197
N.C. App. 380, 385, 677 S.E.2d 203, 207 (2009) (holding
“defendants’ appeal from the denial of their Rule 12(b)(1)
motion based on sovereign immunity is neither
immediately appealable pursuant to N.C. Gen. Stat. § 1-
277(b), nor affects a substantial right.”).



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             In Can Am, this Court concluded its analysis of the
             jurisdictional issue by addressing Rule 12(b)(2) motions
             invoking the sovereign immunity doctrine. This Court
             pointed out that “beginning with Sides v. Hospital, 22 N.C.
             App. 117, 205 S.E.2d 784 (1974), mod. on other grounds,
             287 N.C. 14, 213 S.E.2d 297 (1975), this Court has
             consistently held that: (1) the defense of sovereign
             immunity presents a question of personal, not subject
             matter, jurisdiction, and (2) denial of Rule 12(b)(2) motions
             premised on sovereign immunity are sufficient to trigger
             immediate appeal under section 1-277(b).” 234 N.C. App.
             at 124, 759 S.E.2d at 308.

             As a result, the Court concluded in Can Am that it could
             consider the merits of the defendants’ Rule 12(b)(2) motion
             to dismiss, concluding “[a]s has been held consistently by
             this Court, [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 125, 759 S.E.2d
             at 308. See also Data Gen. Corp. v. Cnty. of Durham, 143
             N.C. App. 97, 100, 545 S.E.2d 243, 245-46 (2001) (“[T]his
             Court has held that an appeal of a motion to dismiss based
             on sovereign immunity presents a question of personal
             jurisdiction rather than subject matter jurisdiction, and is
             therefore immediately appealable.”).

Murray, __ N.C. App. at__, 782 S.E.2d at 535-36.

      Similar to Can Am, in Murray, this Court held defendant could not rely on its

motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) because, “[d]uring the oral

argument, where [the] defendant raised the sovereign immunity doctrine for the first

time, [the] defendant relied only on Rules 12(b)(1) and 12(b)(2) in arguing that the

complaint was barred by sovereign immunity and did not rely upon Rule 12(b)(6)[]”

and, “[a]s Can Am emphasizes, to the extent that defendant relied on Rule 12(b)(1) in


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moving to dismiss on sovereign immunity grounds, that motion does not support an

interlocutory appeal.” Id. at __, 782 S.E.2d at 536. Concerning defendant’s oral

assertion of a sovereign immunity defense based on personal jurisdiction pursuant to

Rule 12(b)(2), this Court held that “the trial court reasonably confined its order to the

bases asserted in the motion: Rules 12(b)(1) and 12(b)(6).” Id. at __, 782 S.E.2d at

536. Furthermore, “[s]ince [the] defendant did not take any action to obtain a ruling

on its oral Rule 12(b)(2) motion, [the] defendant did not preserve for appellate review

the question whether the trial court erred in not applying the sovereign immunity

doctrine under Rule 12(b)(2).” Id. at __, 782 S.E.2d at 537.

      The dissenting opinion in Murray disagreed that the defendant did not

preserve its sovereign immunity argument under Rule 12(b)(6) by obtaining a ruling.

Id. at __, 782 S.E.2d at 538. The dissent concluded that because “[the] [d]efendant’s

motion to dismiss states [the] defendant ‘moves to dismiss [p]laintiff's [c]omplaint

pursuant to Rules 12(b)(1) and/or 12(b)(6) of the North Carolina Rules of Civil

Procedure for mootness, lack of standing, lack of subject matter jurisdiction, and

failure to state a claim upon which relief may be granted[,]’ ” Id. at __, 782 S.E.2d at

538 (emphasis in original), the defendant’s subsequent argument at the hearing that

the plaintiff’s complaint “neither alleged a waiver of immunity nor demonstrated the

basis for such a waiver[]” was sufficient to assert sovereign immunity under Rule

12(b)(6) for failure to state a claim because “[i]t is well-settled that ‘[i]n order to



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overcome a defense of [sovereign] immunity, the complaint must specifically allege a

waiver of [sovereign] immunity. Absent such an allegation, the complaint fails to

state a cause of action.’ ” Id. at __, 782 S.E.2d at 538 (quoting Green, 203 N.C. App.

at 268, 690 S.E.2d at 762).

      As a result of the dissenting opinion in Murray, that case is currently before

our Supreme Court for review. Yet, it is even more clear in the present case that

dismissal of this appeal for lack of jurisdiction is appropriate.

      To elaborate on the background above, in defendants’ motions to dismiss,

defendants labeled all immunity defenses as issues of subject matter jurisdiction. In

those defenses, defendants contended the trial court “lacks jurisdiction of the subject

matter presented by the complaint” in that (1) defendants are being sued in their

official capacity and the State had not waived sovereign immunity; (2) plaintiffs did

not specifically plead waiver of sovereign immunity; and (3) defendants’ are public

officials and entitled to all immunities afforded public officials. Defendants also

moved to dismiss for failure to state a claim on the bases that (1) defendants owed no

duty to plaintiffs; (2) the negligence claims are, or should be, determined to be claims

for medical malpractice; and (3) the medical malpractice claims fail to allege a

physician/patient relationship.

      At the 1 February 2016 hearing on defendants’ motions to dismiss, defendants

stated they wanted to proceed only on their motions to dismiss for lack of subject



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matter jurisdiction and for failure to state a claim. In regards to subject matter

jurisdiction, defendants clarified that the Rule 12(b)(1) motion was on the basis that

plaintiffs failed to allege whether defendants were being sued in their individual or

official capacity. In regards to failure to state a claim, defendants clarified that the

Rule 12(b)(6) motion was on the basis that defendants owed no duty to plaintiffs to

support the negligence claims. Defendants withdrew the remainder of their motions

at that time.

      Thereafter, the court granted plaintiffs’ motion to file a second amended

complaint that made clear that plaintiffs were suing defendants in their individual

capacities. The court then considered arguments on defendants’ two motions to

dismiss based on “subject matter” and “duty.” As a result of allowing the motion to

amend, the court held that defendants’ subject matter jurisdiction argument was

moot. Defense counsel appeared to agree, replying “[i]t’s been dealt with[]” and “[y]es,

sir.” The court then held the second amended complaint survived defendants’ motion

to dismiss for failure to state a claim, indicating the issue of duty would be “litigated

significantly down the road.”

      Following the filing of plaintiffs’ second amended complaint, defendants never

filed further motions to dismiss. The trial courts written order, filed on 7 March 2016,

indicates defendants’ motions to dismiss came on for hearing with plaintiffs’ motion

to amend the complaint and that all of defendants’ motions to dismiss are denied.



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      Upon review, it is evident that defendants’ immunity arguments in this case

were presented to the trial court and decided solely as motions to dismiss for lack of

subject matter jurisdiction. In keeping with Murray, Can Am, and the cases cited

therein, we hold that the interlocutory denial of a motion to dismiss for lack of subject

matter jurisdiction based on immunity is not immediately appealable. Moreover,

contrary to the assertion in defendants’ notice of appeal that the trial court denied

“motions to dismiss based on claims of public official and sovereign immunity under

Rule 12(b)(2) and (6) of the North Carolina Rules of Civil Procedure[,]” nothing in the

record shows that defendants’ argued for a dismissal based on immunity pursuant to

Rules 12(b)(2) or 12(b)(6). Defendants’ motion to dismiss pursuant to Rule 12(b)(6)

was argued solely on the basis that defendants owed no duty to plaintiffs. Dismissal

on grounds of immunity for lack of personal jurisdiction pursuant to Rule 12(b)(2)

was never mentioned in defendants’ motion to dismiss or in defendants’ arguments

to the trial court. The first mention in the record of personal jurisdiction as grounds

for dismissal is in defendants’ notice of appeal.

      As this Court stated in Murray, “since our role is simply to review the actions

of the court below, we find no basis for concluding that this Court has jurisdiction

over the appeal pursuant to Rule 12(b)(2) [or Rule 12(b)(6)].” __ N.C. App. at __, 782

S.E.2d at 537. As a result, we must dismiss the appeal.

                                   III.   Conclusion



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      For the reasons discussed, we dismiss defendants’ appeal from the trial court’s

order denying their motions to dismiss.

      DISMISSED.

      Judges DILLON and TYSON concur.




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