An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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).
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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
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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
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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
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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
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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
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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
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“[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
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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
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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,
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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.
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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).
Brooks v. Martin
Combined Opinion