Brooks v. Martin

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1040
NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

AMANDA HOLT BROOKS,
Plaintiff,

v. Harnett County
No. 13 CVS 25
TIMOTHY EARL MARTIN and
HARNETT COUNTY,
Defendants.

Appeal by plaintiff from judgment entered 14 May 2013 by

Judge Douglas B. Sasser in Harnett County Superior Court. Heard

in the Court of Appeals 6 March 2014.

Doster, Post, Silverman, Foushee & Post, P.A., by Norman C.
Post, Jr., for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P., by Bryan T.
Simpson and Natalia K. Isenberg, for defendants-appellees.

DAVIS, Judge.

Amanda Holt Brooks (“Plaintiff”) appeals from an order (1)

granting the motion to dismiss of Timothy Earl Martin (“Deputy

Martin”) and Harnett County (collectively “Defendants”) pursuant

to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure
 -2-

based on governmental immunity1; and (2) denying her motion for

leave to amend her complaint. On appeal, she argues that the

trial court abused its discretion by denying her leave to amend

her complaint as the proposed amendment would have been

sufficient to overcome the governmental immunity defense and

state a valid claim against Deputy Martin in his individual

capacity. After careful review, we affirm.

Factual Background

We have summarized the pertinent facts below using

Plaintiff’s own statements from her complaint, which we treat as

true in reviewing the trial court’s order dismissing her

complaint under Rule 12(b)(6). See, e.g., Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006)

(“When reviewing a complaint dismissed under Rule 12(b)(6), we

treat a plaintiff’s factual allegations as true.”).

On 29 January 2010, Plaintiff was driving her 2006 Ford

automobile in Lillington, North Carolina. Plaintiff was stopped

at a red light at the intersection of U.S. Highway 421 and Main

1
We note that the trial court’s order incorrectly refers to the
immunity at issue in this case as sovereign immunity rather than
governmental immunity. When a county or county agency is the
named defendant, the immunity is appropriately identified as
governmental immunity. Conversely, the doctrine of sovereign
immunity applies when suit is brought against the State or one
of its agencies. However, the distinction is not outcome
determinative. See Craig ex rel. Craig v. New Hanover Cty. Bd.
of Educ., 363 N.C. 334, 336, 678 S.E.2d 351, 353 (2009); Meyer
v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997).
 -3-

Street when Deputy Martin, a deputy sheriff employed by the

Harnett County Sheriff’s Office, negligently collided into the

rear of Plaintiff’s stopped vehicle while driving his marked law

enforcement vehicle. As a result of the collision, Plaintiff

sustained serious bodily injury.

On 8 January 2013, Plaintiff filed a personal injury action

against Defendants in Harnett County Superior Court. On 7

February 2013, Defendants filed a joint answer containing a

motion to dismiss pursuant to Rule 12(b)(6). On 15 February

2013, Plaintiff filed a motion for leave to amend her complaint.

The proposed amendment sought to add — among other things — an

allegation that Harnett County had waived its governmental

immunity through the purchase of liability insurance and an

allegation making clear that Deputy Martin was being sued not

only in his official capacity but also in his individual

capacity.

On 8 April 2013, the motion to dismiss was heard by the

Honorable Douglas B. Sasser. On 14 May 2013, Judge Sasser

entered an order granting Defendants’ motion to dismiss with

prejudice and denying Plaintiff’s motion for leave to amend her

complaint. Plaintiff filed a timely notice of appeal to this

Court.

Analysis

I. Claim Against Harnett County
 -4-

It is well settled that counties are protected by

“governmental immunity when engaging in activity that is clearly

governmental in nature and not proprietary. One cannot recover

for personal injury against a government entity for negligent

acts of agents or servants while they are engaged in government

functions. However, the county may waive its governmental

immunity by purchasing liability insurance for specific claim

amounts or certain actions.” Wright v. Gaston Cty., 205 N.C.

App. 600, 603-04, 698 S.E.2d 83, 87 (2010) (internal citation

and brackets omitted).

A waiver of governmental immunity must be expressly pled in

the complaint. See Clark v. Burke Cty., 117 N.C. App. 85, 88,

450 S.E.2d 747, 748 (1994) (“When suing a county or its

officers, agents or employees, the complainant must allege this

waiver in order to recover. . . . [A]bsent an allegation to the

effect that immunity has been waived, the complaint fails to

state a cause of action.”).

As Plaintiff acknowledges, her original complaint fails to

allege a waiver of Harnett County’s governmental immunity.

However, the amended complaint she sought leave to file

contained allegations that Harnett County had, in fact, waived

its governmental immunity through the purchase of liability

insurance. Therefore, the question of whether Plaintiff’s claim

against Harnett County was properly dismissed hinges on whether
 -5-

the trial court abused its discretion in denying her motion to

amend.

A motion to amend is left to the sound
discretion of the trial court, and a denial
of such motion is reviewable only upon a
clear showing of abuse of discretion. The
trial court's ruling is to be accorded great
deference and will be upset only upon a
showing that it was so arbitrary that it
could not have been the result of a reasoned
decision.

Brown v. N.C. DMV, 155 N.C. App. 436, 438-39, 573 S.E.2d 246,

248 (2002) (internal citations and quotation marks omitted),

disc. review denied, 357 N.C. 62, 579 S.E.2d 271 (2003).

We addressed a similar issue in Gunter v. Anders, 115 N.C.

App. 331, 444 S.E.2d 685 (1994), disc. review denied, 339 N.C.

611, 454 S.E.2d 250 (1995). In Gunter, a high school student

was struck by an automobile and suffered severe injuries while

crossing a driveway on school grounds. A negligence action was

brought against a number of defendants, including several school

employees and the Surry County Board of Education (“the Board”).

Id. at 332-33, 444 S.E.2d 686-87. The school defendants filed a

Rule 12(b)(6) motion to dismiss on the ground that the

plaintiffs had failed to allege in their complaint a waiver of

the Board’s governmental immunity through the purchase of

liability insurance. Id. The plaintiffs sought leave to amend

their complaint to allege such a waiver. Id. at 333-34, 444
 -6-

S.E.2d 687. The trial court denied the plaintiffs’ motion and

granted the motion to dismiss. Id.

On appeal, the plaintiffs contended that the trial court’s

ruling was erroneous, arguing that delay by itself is an

insufficient basis to justify the denial of a motion to amend

and that the proposed amendment would have resulted in no

prejudice to the defendants, merely curing a “technical defect.”

On appeal, we affirmed the trial court’s ruling, holding that

the plaintiffs had failed to show an abuse of discretion. Id.

at 333-34, 444 S.E.2d at 687-88.

We likewise hold in the present case that the trial court

did not abuse its discretion in denying Plaintiff’s motion. The

accident giving rise to this action took place on 29 January

2010. Plaintiff’s complaint was filed on 8 January 2013.

Therefore, Plaintiff had almost three years to investigate the

factual and legal basis for filing a negligence action against

Defendants. Moreover, after filing suit on 8 January 2013,

Plaintiff then had an additional 21 days to cure any defects in

her complaint by filing an amendment to her complaint prior to

the expiration of the applicable three-year statute of

limitations set out in N.C. Gen. Stat. § 1-52(16). Because

Defendants did not file a responsive pleading until 7 February

2013, Rule 15(a) of the North Carolina Rules of Civil Procedure

would have entitled her to file such an amended complaint prior
 -7-

to the expiration of the limitations period as of right without

the need to seek either leave of court or the consent of

Defendants. See N.C.R. Civ. P. 15(a) (“A party may amend his

pleading once as a matter of course at any time before a

responsive pleading is served . . . Otherwise a party may amend

his pleading only by leave of court or by written consent of the

adverse party.”).

Instead, however, Plaintiff waited until 15 February 2013 —

17 days after the expiration of the limitations period — to seek

leave of court to amend her complaint. Plaintiff has failed to

offer any explanation as to why she was unable to ascertain

whether a good faith basis existed for her to allege that

Harnett County had waived its immunity through the purchase of

liability insurance before the statute of limitations expired.

Under these circumstances, as in Gunter, we cannot say that

the trial court abused its discretion in denying her leave to

amend her complaint to belatedly allege a waiver of Harnett

County’s governmental immunity. Accordingly, Plaintiff’s

argument on this issue is overruled.

II. Claim Against Deputy Martin

Plaintiff also argues that the trial court erred in

dismissing her claim against Deputy Martin, asserting that her

complaint should be construed as stating a claim against him in

his individual capacity. However, because we conclude that her
 -8-

complaint stated only a claim against Deputy Martin in his

official capacity, we reject Plaintiff’s argument.

Plaintiff failed to indicate with specificity in either the

caption, prayer for relief, or body of her complaint whether she

was suing Deputy Martin in his official or individual capacity.

Our Supreme Court has recently held “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.” White v. Trew, 366 N.C.

360, 360-61, 736 S.E.2d 166, 166-67 (2013).

In White, a professor filed a libel action against the head

of his department, who had allegedly published false information

about him in his annual performance review. Id. at 361, 736

S.E.2d at 167. The trial court denied the defendant’s motion to

dismiss on immunity grounds, and the defendant appealed the

trial court’s ruling. Id. at 362, 736 S.E.2d at 167. On

appeal, the plaintiff argued that he had intended to sue the

defendant in his individual — rather than his official —

capacity. Id. at 364, 736 S.E.2d at 169. Our Supreme Court

noted that “[t]he caption [of the complaint did] not include the

words ‘in his official capacity’ or ‘in his individual

capacity,’ nor [did] the allegations ‘provide further evidence

of capacity.’” Id. (citation omitted). The Court ruled that
 -9-

“[b]ecause the indicia of capacity . . . 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.” Id.

The Supreme Court also addressed this issue in Mullis v.

Sechrest, 347 N.C. 548, 495 S.E.2d 721 (1998):

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.

In the present case, Plaintiff points to the following

italicized language in her complaint in an effort to show that

she did, in fact, specify that she was suing Deputy Martin in

his individual capacity:

6. That at all times relevant herein,
Defendant Martin, who was employed and on
 -10-

duty with the Harnett County Sheriff’s
Department, was acting individually and for
and on behalf of Defendant Harnett County
and during the course and scope of his
employment/agency relationship with
Defendant Harnett County; that all acts of
Defendant Martin, negligent or otherwise,
are imputed to Defendant Harnett County
because of Defendants’ agency/employment
relationship.

(Emphasis added.)

Based on White and Mullis, we believe the brief reference

in paragraph 6 to Deputy Martin “acting individually” falls well

short of the specificity required to designate that he was being

sued in his individual capacity. Despite the insertion of the

words “acting individually” in this paragraph of the complaint,

the overall tenor of paragraph 6 suggests an official capacity

claim premised on the notion that the collision occurred while

he was on duty and acting in the course and scope of his

employment.

Furthermore, the words “individual capacity” appear nowhere

in the complaint and the word “individually” is not used

anywhere other than in paragraph 6. Moreover, we note that in

addition to the fact that the caption does not explicitly

reference an individual capacity claim against Deputy Martin,

the prayer for relief likewise contains no express indication

that damages are being sought from Deputy Martin in his

individual capacity. Accordingly, we conclude that, taken as a
 -11-

whole, Plaintiff’s complaint states a claim against Deputy

Martin solely in his official capacity. See White, 366 N.C. at

364, 736 S.E.2d at 169 (holding that where lack of clarity

exists over capacity in which defendant is being sued, “we must

presume that the defendant is being sued only in his official

capacity”).

It is well settled that an official capacity complaint

against an officer is deemed to be a claim against the entity of

which the officer is employed. See Moore v. City of Creedmoor,

345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (“[An] official-

capacity claim against [a] public officer is [a] claim against

the office held by that person, rather than against the

particular individual who occupies that office at the time the

claim [arises.]”). Therefore, for the same reasons that

governmental immunity bars Plaintiff’s claim against Harnett

County, her official capacity claim against Deputy Martin is

similarly foreclosed.

Plaintiff also claims the trial court abused its discretion

in denying her motion for leave to file the proposed amendment

to her complaint containing more specific allegations of an

individual capacity claim against Deputy Martin. Once again, we

disagree.

As discussed above, her motion to amend was filed after the

expiration of the statute of limitations. As explained below,
 -12-

even if the trial court had allowed her amendment containing

specific allegations of an individual capacity claim against

Deputy Martin, the amendment would not have related back to the

date the original complaint was filed and thus would have been

time-barred due to the expiration of the three-year limitations

period on 29 January 2013.

In White v. Crisp, 138 N.C. App. 516, 530 S.E.2d 87 (2000),

the plaintiffs sought to amend their personal injury complaint

against the defendant after the statute of limitations had

expired so as to clarify that the action was being brought

against the defendant in his individual, rather than his

official, capacity. This Court held that “the amended

complaint, which named [the] defendant . . . in his individual

capacity, had the effect of adding a new party and [therefore]

does not relate back to the filing of the original complaint.”

Id. at 521, 530 S.E.2d at 90. We reasoned that the amended

complaint naming the officer in his individual capacity “had the

effect of adding a new party” and that Rule 15(c) permitted the

relation back only of new claims and did not authorize the

relation back of a claim being asserted against new parties.

Id. at 520-21, 530 S.E.2d at 89-90. Therefore, the trial court

did not abuse its discretion in denying Plaintiff’s motion for

leave to amend her complaint to state an individual capacity

claim against Deputy Martin.
 -13-

Conclusion

For the reasons stated above, the trial court’s 14 May 2013

order is affirmed.

AFFIRMED.

Judges CALABRIA and STROUD concur.

Report per Rule 30(e).