An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1065
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


CELESTINE L. SIMMONS,
     Plaintiff

       v.                                     Guilford County
                                              No. 12 CVS 10339
CITY OF GREENSBORO,
HOUSING AND COMMUNITY DEVELOPMENT
(HCD) DEPARTMENT,
CITY ATTORNEY, MUJEEB SHAH-KHAN,
CITY MANAGER, DENISE TURNER-ROTH,
     Defendants.


       Appeal by plaintiff Celestine L. Simmons from order entered

16    April   2013   by   Judge    A.   Moses   Massey     in   Guilford    County

Superior Court.       Heard in the Court of Appeals 3 February 2014.


       Celestine L. Simmons, pro se, for plaintiff-appellant.

       Greensboro City Attorney’s Office, by Becky Jo Peterson-
       Buie, for defendants-appellees.


       HUNTER, JR., Robert N., Judge.


       Celestine L. Simmons (“Plaintiff”) appeals from a 16 April

2013 order granting a motion to dismiss under N.C. R. Civ. P.

12(b)(1), (2), and (6) in favor of the City of Greensboro and

the    City    of    Greensboro     Housing     and    Community      Development
                                            -2-
Department (“HCD”) (collectively “Defendants”).                       Upon review, we

affirm.

                        I. Facts & Procedural History

       Plaintiff      filed   a    complaint      in    Guilford      County   Superior

Court    on   5   November        2012   alleging      financial,        economic,   and

emotional damages stemming from the disposition of her property

at 919 Pearson Street in Greensboro.                   Plaintiff requested relief

under N.C. Gen. Stat. § 143-291 (2013), Article 31 (commonly

referred to as the “Tort Claims Act”), and sought a monetary

judgment against the City of Greensboro “as a result of the

negligence of [its] officer, employee, involuntary servant or

agent of the State.”          The complaint alleged that Defendants were

negligent and Plaintiff was entitled to damages pursuant to N.C.

Gen.    Stat.     §   143-291.           Plaintiff’s         complaint     alleged   the

following facts.

       The property at issue is located at 919 Pearson Street in

Greensboro.       On 8 September 2003, Plaintiff submitted a Rental

Property Lead Grant Application to the City of Greensboro.                            At

that    time,     Plaintiff       averred    that      she    owned   the    respective

property and believed that her name was listed on the deed.

       Over     the   next    year,      Plaintiff       and    HCD      exchanged   the

following communications.                Plaintiff received a letter on 12
                                            -3-
December      2003        informing     Plaintiff           that     she       must     establish

ownership of the property before proceeding.                           HCD sent Plaintiff

a Rental Property Eligibility Screening Form dated 9 February

2004.      Thereafter, Plaintiff discovered that her name was not on

the deed and took steps to have the property deeded in her name.

Plaintiff recorded the deed to 919 Pearson Street on 9 March

2005.

      Plaintiff subsequently completed the Eligibility Screening

Form and returned it to HCD via fax on 10 March 2005.                                   Plaintiff

then received a Tenant Information Form dated 6 April 2005,

which she returned on 8 April 2005.                         Plaintiff next received a

Greensboro       Lead       Safe      Housing     Program          Application          Approval

Notification         on    14   April    2005.         On     25    May        2005,    HCD   sent

Plaintiff a Summary Notice of Lead-Based Paint Risk Assessment

and     two    sets       of    the     Comprehensive          XRF        Lead-Based          Paint

Inspection       &     Risk     Assessment        Report           regarding          Plaintiff’s

property at 919 Pearson Street.                       Plaintiff then contacted HCD

staff      members        multiple     times     to     schedule           a    work    write-up

inspection      for       the   property,       but     the        inspection          was    never

scheduled.

      In      August       2005,     Plaintiff        was     notified          of     Greensboro

Minimum Housing Code violations concerning the property at 919
                                       -4-
Pearson Street.      From August 2005 until November 2008, Plaintiff

attended    multiple      meetings   of     the   Greensboro    Minimum   Housing

Standards Commission regarding the condition of her property.

Nevertheless,       the     Greensboro         Minimum     Housing      Standards

Commission entered an Order to Repair or Demolish the property

at 919 Pearson Street.

       Plaintiff’s property was later evaluated by the City and

its    affiliates    on     multiple      occasions.       The    property     was

evaluated twice by the HCD Loan Committee.                     The property was

also separately evaluated by the City of Greensboro’s outside

adjustment company, a city-appointed mediator, and the City of

Greensboro Legal Department.           Ultimately, Plaintiff accepted the

City   of   Greensboro’s     offer     to    purchase    the   property   at   919

Pearson Street for its appraised value of $13,000.                   In addition,

the City extended Plaintiff a $22,500 non-negotiable settlement

offer for all claims involving the 919 Pearson Street property.

Plaintiff did not respond to the City’s settlement offer within

the time it was available to her.

       Defendants   moved     to     dismiss      Plaintiff’s    claims   on    29

November 2012.      The matter came on for hearing before Guilford

County Superior Court Judge A. Moses Massey on 19 March 2013.

The trial court entered an order granting Defendants’ motion to
                                        -5-
dismiss on 16 April 2013.             Written notice of appeal was timely

filed by Plaintiff on 26 April 2013.

              II. Jurisdiction and Standard of Review

    Jurisdiction lies in this Court pursuant to N.C. Gen. Stat.

§ 7A–27(b) (2013) as Plaintiff appeals from a final order of the

superior court as a matter of right.

    The    first    issue     on     appeal   is   whether   the    trial   court

properly   granted    Defendants’        motion    to    dismiss    for   lack    of

subject matter jurisdiction.             A motion to dismiss for lack of

subject matter jurisdiction is reviewed by this Court de novo.

Burgess v. Burgess, 205 N.C. App. 325, 327, 698 S.E.2d 666, 668

(2010) (citing Harper v. City of Asheville, 160 N.C. App. 209,

215, 585 S.E.2d 240, 244 (2003)).             When a trial court reviews a

motion to dismiss for lack of subject matter jurisdiction and

confines its evaluation to the pleadings, it must accept the

allegations in the complaint as true and construe them in a

light most favorable to the Plaintiff.                  Smith v. Privette, 128

N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998); see also Johnson

v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 510, 714

S.E.2d 806, 809 (2011).

    “Under    the     de      novo    standard     of     review,    this       Court

‘considers   the     matter    anew     and   freely     substitutes      its    own
                                            -6-
judgment for that of the [trial court].’”                           Burgess, 205 N.C.

App. at 327, 698 S.E.2d at 668 (quoting In re Appeal of the

Greens of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d

316, 319 (2003)) (alteration in original).                         Because this issue

is   dispositive,      we    do   not      consider       the    remaining   issues    on

appeal.

                                   III. Analysis

       In this case, Plaintiff specifically alleges that she is

asserting her       claims    against the City of Greensboro and HCD

pursuant to N.C. Gen. Stat.                 § 143-291,          the Tort Claims      Act,

which     creates      authority      in     the     North        Carolina   Industrial

Commission to review “tort claims against the State Board of

Education,       the    Board      of      Transportation,           and     all    other

departments, institutions and agencies of the State.”                         N.C. Gen.

Stat. § 143-291(a).          Therefore, only agencies of the State are

subject to liability under the statute.                         Wirth v. Bracey, 258

N.C.    505,   507,    128   S.E.2d     810,       813    (1963)    (“The    only   claim

authorized by the Tort Claims Act is a claim against the State

agency.”); see also Frazier v. Murray, 135 N.C. App. 43, 47, 519

S.E.2d    525,   528    (1999)     (“The     Tort        Claims    Act   embraces    only

claims against state agencies.”).
                                         -7-
       Here, neither the City of Greensboro nor HCD is an agency

of the State.      Rather, under North Carolina law, a “city” is “a

municipal corporation organized under the laws of this State.”

N.C. Gen. Stat. § 160A-1(2) (2013).               Thus, the Tort Claims Act

does not authorize claims against cities or departments thereof.

See Yow v. Asheboro Police Department, I.C. No. TA-22337, 2012

WL 2339107 (2012) (dismissing Plaintiff’s claim under the Tort

Claims Act against the City of Asheboro).

       Further, the Tort Claims Act does not grant jurisdiction to

hear such claims in Superior Court.              Subject matter jurisdiction

of claims under the Tort Claims Act is “within the exclusive and

original    jurisdiction     of    the    Industrial    Commission”     and    “not

within the jurisdiction of the Superior Court.”                 Guthrie v. N.C.

State    Ports   Auth.,    307    N.C.    522,   540,   299    S.E.2d   618,   628

(1983).

       As the trial court lacked subject matter jurisdiction to

hear     Plaintiff’s      asserted       claim   in     this    case,   granting

Defendants’ 12(b)(1) motion was proper and we affirm the trial

court.     Because the trial court properly dismissed Plaintiff’s

case under Rule 12(b)(1), we do not address the remaining issues

on appeal.

                                  IV. Conclusion
                             -8-
    For the reasons stated above, the decision of the trial

court is

    AFFIRMED.

    Chief Judge MARTIN and Judge ELMORE concur.

    Report per Rule 30(e).
