IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-84
Filed: 1 May 2018
Jackson County, No. 15 CVS 123
CURTIS LAMBERT, Plaintiff,
v.
TOWN OF SYLVA, Defendant.
Appeal by plaintiff from order entered 13 June 2016 by Judge Mark E. Powell
in Superior Court, Jackson County. Heard in the Court of Appeals 23 August 2017.
David A. Sawyer for plaintiff-appellant.
Ridenour & Goss, P.A., by Eric Ridenour and Jeffrey Goss, for defendant-
appellee.
STROUD, Judge.
Plaintiff Curtis Lambert (“plaintiff”) appeals from the trial court’s order of
dismissal in favor of defendant Town of Sylva (“defendant”). At the close of plaintiff’s
evidence in a jury trial of the three claims in the complaint, the trial court granted a
directed verdict for defendant on all claims. Plaintiff appealed, and for the reasons
that follow, we reverse and remand for a new trial.
I. Facts
Because this case turns on legal issues, we will present only a brief summary
of the facts based upon plaintiff’s evidence. Plaintiff was employed by defendant as
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Opinion of the Court
a police officer for the Town of Sylva. He was supervised by the Chief of Police Davis
Woodard; Chief Woodard was under the supervision of the Town Manager, Paige
Roberson Dowling. On 17 February 2014, plaintiff filed to run for Jackson County
Sheriff, as a Republican. Plaintiff claims that Chief Woodard ridiculed him for
running for sheriff and took other adverse actions against him for this reason. On 3
March 2014, Chief Woodard called plaintiff in to meet with him, the Town Manager,
and an assistant chief and then demanded that plaintiff resign his position as a police
officer. He refused, so Chief Woodard fired him. When he asked why, Chief Woodard
and the Town Manager claimed to have received complaints about him, although
plaintiff had never been informed of any complaints. Plaintiff then inquired about
his personnel file and found it contained no complaints, reprimands, or counseling
notifications, other than one undated and unsigned memo purportedly from a
detective regarding a traffic checkpoint conducted in November 2013. Plaintiff
sought to appeal his termination with the Town of Sylva, but the Town Manager
affirmed the termination and told him that the decision was final.
Despite the absence of any complaints or disciplinary action in his personnel
file, after plaintiff applied to receive unemployment benefits, defendant provided
information to the North Carolina Employment Security Commission stating that
plaintiff was terminated for excessive absenteeism and claimed that he had been
warned about this, although his personnel file included no such warnings and showed
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that plaintiff’s only absences had been for illness and the birth of his child -- all
approved by defendant under the Town’s usual policies for sick leave.
Plaintiff filed a complaint against defendant on 2 March 2015, alleging claims
under 42 U.S.C. § 1983 based upon defendant’s violations of his state and federal
constitutional rights to free speech and association and for his wrongful termination
in violation of North Carolina public policy as expressed in N.C. Gen. Stat. § 160A-
169, since he was fired based upon his political activity or beliefs. Plaintiff also
alleged that defendant had purchased liability insurance coverage for employment
cases and had waived any defendant of “sovereign immunity to the extent of coverage
under the policy.”
On 7 April 2015, defendant filed its answer, which admitted a few allegations
of the complaint and denied the others. The answer alleged that plaintiff’s
employment was at will and could be terminated at the will of the defendant, without
regard to his performance. But the answer is most notable here for the total absence
of any affirmative defenses, particularly any claim of any sort of governmental
immunity. According to the record before this Court, defendant filed no motion to
dismiss and never moved for summary judgment. The complaint, defendant’s
acceptance of service, and answer were the only documents filed in the case until the
jury trial started.
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Plaintiff’s claims came on for a jury trial on 23 May 2016, with the jury
impaneled on 24 May 2016. On 25 May 2016, at the close of plaintiff’s evidence,
defendant filed a written motion for directed verdict “pursuant to Rule 50, Rule
12(b)(6) and Rule 12(b)(7) of the North Carolina Rules of Civil Procedure.” Defendant
made four arguments for directed verdict, which we will summarize briefly:
(1) The doctrine of respondeat superior does not apply to plaintiff’s claims
under 42 U.S.C. § 1983 or termination in violation of public policy, because “the Town
itself must have a custom or policy that is in violation of the law” and the Town had
no policy that a “Town employee could not run for political office.”
(2) Under Rule 12(b)(6), plaintiff’s complaint failed to state a claim upon
which relief could be granted due to the lack of a “pattern, practice, custom or usage”
in violation of his constitutional rights.
(3) Under Rule 12(b)7), “Town Officials” made the decisions plaintiff alleges
are in violation of his rights and they were not made parties.
(4) Plaintiff’s evidence is too “speculative” to “rebut the Employment at Will
presumption.”
Once again, defendant did not mention any claim of governmental immunity
in its written motion for directed verdict or in argument to the trial court. The trial
court granted defendant’s motion for directed verdict. We have had difficulty
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Opinion of the Court
discerning why, although the trial court’s order essentially tracks defendant’s motion.
The order says:
[I]t appearing that after the Plaintiff had presented
all of Plaintiff’s evidence to the jury and Plaintiff had
rested, the Defendant moved to dismiss the Plaintiff’s case.
Based upon the pleadings, facts and arguments of counsel,
viewed in the light most favorable to the Plaintiff, the
Court finds that Plaintiff has shown no lawful claim, and
that Defendant’s motion should be granted pursuant Rules
l2(b)6, 12(b)7 and Rule 50 of the North Carolina Rules of
Civil Procedure.
In seeking to understand this order, we have also considered the trial court’s
comments to the jury upon granting directed verdict. He stated:
Members of the jury, I appreciate your attention to
this case so far, but at the end of the plaintiff’s evidence
I’ve dismissed the lawsuit, so there will be nothing for you
to hear. I want to explain why I did that because I -- well,
you’re probably wondering about it and you’re entitled to
an explanation.
He first addressed the § 1983 claims:
[For] the Town of Sylva commissioners -- to be
responsible for what their employees do that the plaintiff
alleges was wrong, the commissioners either had to have a
custom or policy that allowed it or directed it, they had to
know it was happening -- these are alternatives -- or they
had to know it was happening and did nothing about it,
maybe a reckless indifference type standard, or perhaps
they failed to adequately train their employees and that’s
why it was happening, but just because a municipal
employee allegedly violated someone’s rights under that
federal statute does not make the town liable, and I think
you understand what I’m saying.
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I’ve heard -- perhaps there’s been some testimony
about some communication from a commissioner, but I
didn’t hear any evidence that the commissioners were the
moving force behind any of this.
Now maybe employees, if you believe the plaintiff’s
evidence, were, but not the commissioners themselves, and
that’s why I dismissed the federal claims.
He then addressed the claim for wrongful discharge:
Well, North Carolina law makes it clear you can’t
fire someone because of political things they do when
they’re not at work; that’s wrong.
But you’ve also heard of sovereign immunity. You’ve
heard of the cases where a -- for example, a state employee
was driving a truck during his business and he hit
somebody and hurts them. So that person says, “I’m going
to sue the state.” And perhaps you’ve heard about those
cases where that lawsuit was thrown out because the judge
says, “You cannot sue the state without their permission.”
I remember I read some of those cases and I thought,
well, that’s kind of unfair. Well, it depends on who hits
you, who runs over you, whether you get money back or not
for your damages. And there’s an exception for that. If the
state or municipality has purchased liability insurance,
then those lawsuits can proceed. But there’s been no
evidence about liability insurance in this case.
So that doctrine goes back to the common law and
the law concerning the King of England. You couldn’t sue
the king without his permission. And there’s all kinds of
exceptions. I know you want me to go into them, but I
won’t.
Plaintiff timely filed a notice of appeal from the trial court’s order granting
directed verdict.
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II. Analysis
a. Standard of review
The order on appeal was entered after presentation of the plaintiff’s evidence
at trial and is based upon Rule 50, despite its reference to Rules (12)(b)(6) and (7), so
we must consider all of the evidence presented at trial in the light most favorable to
plaintiff.
The standard of review of directed verdict is whether the
evidence, taken in the light most favorable to the non-
moving party, is sufficient as a matter of law to be
submitted to the jury. When determining the correctness
of the denial for directed verdict or judgment
notwithstanding the verdict, the question is whether there
is sufficient evidence to sustain a jury verdict in the non-
moving party’s favor, or to present a question for the jury.
Davis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (citations
omitted).
In determining the sufficiency of the evidence to withstand
a motion for a directed verdict, all of the evidence which
supports the non-movant’s claim must be taken as true and
considered in the light most favorable to the non-movant,
giving the non-movant the benefit of every reasonable
inference which may legitimately be drawn therefrom and
resolving contradictions, conflicts, and inconsistencies in
the non-movant’s favor.
Turner v. Duke University, 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989). If the
plaintiff has presented “more than a scintilla of evidence” to support each element of
a claim, the trial court should deny directed verdict. Bryant v. Thalhimer Bros., Inc.,
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113 N.C. App. 1, 6, 437 S.E.2d 519, 522 (1993). The trial court’s ruling presents a
question of law which we review de novo and “[t]his Court’s review is limited to those
grounds asserted by the moving party at the trial level.” Maxwell v. Michael P. Doyle,
Inc., 164 N.C. App. 319, 323, 595 S.E.2d 759, 761-62 (2004) (citation and quotation
marks omitted).
Our Supreme Court has noted that “where the question of granting a directed
verdict is a close one, . . . the better practice is for the trial court to reserve its decision
on the motion and allow the case to be submitted to the jury.” Turner, 325 N.C. at
158, 381 S.E.2d at 710. If the case is submitted to the jury and the jury should return
a verdict for the plaintiff, reserving the ruling on the motion for directed verdict and
then granting a judgment notwithstanding the verdict also has the advantage of
avoiding the need for another trial, should the directed verdict be reversed on appeal.
See N.C. R. Civ. P. Rule 50 Comment, Comment to this Rule as Originally Enacted
(“Under [Rule 50], whenever a motion for a directed verdict made at the close of all
the evidence is not granted, it will be deemed that the judge submitted the case to the
jury having reserved for later determination the legal question raised by the motion.
Thus, if there is a verdict for the nonmovant or if for some reason a verdict is not
returned, the judge can reconsider the sufficiency of the evidence and, if convinced
that it is insufficient, can grant the motion. If, on appeal it should prove that the
judge was correct, that is, that he properly granted the motion, then the appellate
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court can affirm and, in appropriate cases, order judgment entered for the movant.
On the other hand, if it should prove that the trial judge improperly granted the
motion, the appellate court is not restricted to granting a new trial, as under the prior
practice, but can order judgment entered on the verdict.”).
b. Procedural posture
As we noted above, we need not dwell on details of the facts as presented at
trial. Viewing the evidence in the light most favorable to plaintiff, he has presented
“more than a scintilla” of evidence to support his claim he was fired because he was
running for sheriff as a Republican. Bryant, 113 N.C. App. at 6, 437 S.E.2d at 522.
His evidence also shows that the Chief’s decision was supported by the Town
Manager, so her review of the termination was just a “rubber stamping” of the Chief’s
decision, and that the defendant did not permit plaintiff to appeal this decision.
Defendant certainly claims otherwise, but again, we must take plaintiff’s evidence as
true and must draw all reasonable inferences in his favor. See Davis, 330 N.C. at
322, 411 S.E.2d at 138.
In addition, this case comes to us in a very unusual procedural posture,
particularly for the legal issues involved. Although there are other cases addressing
wrongful termination and 42 U.S.C. § 1983 claims, we cannot find any other case in
North Carolina in which a directed verdict has been granted for a defendant,
primarily based upon governmental immunity, where the defendant has neither pled
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nor argued governmental immunity as a defense. Moreover, while Rule 12(b)(6) was
noted in defendant’s motion and the order granting directed verdict, a motion to
dismiss under Rule 12(b)(6) considers whether the plaintiff’s complaint has stated a
claim upon which relief may be granted, and this case had already proceeded to trial.
Nevertheless, with those caveats, we will address the arguments on appeal.
c. Governmental Immunity
We will first address the trial court’s ex mero motu dismissal of plaintiff’s state
law claim for wrongful discharge based upon governmental immunity.1 Defendant
did not plead governmental immunity as an affirmative defense and did not move to
dismiss on this basis. In all fairness to defendant, defendant did not seek to defend
the trial court’s ruling on governmental immunity in its brief before this Court either.
According to the trial court’s rendition of the reasons for dismissal and reference in
the order to Rule(12)(b)(6)2, the trial court relied solely or primarily on governmental
immunity for the dismissal of plaintiff’s wrongful termination claim under state law,
so we must address it.
1 It is not clear if the trial court relied upon governmental immunity to dismiss the other
claims, but to the extent that the trial court’s rendition and order could be construed this way, the
same analysis would apply.
2 Although governmental immunity is normally raised under either Rule12(b)(1) or (2), it can
be raised under Rule 12(b)(6) as well. See, e.g., Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380,
385, 677 S.E.2d 203, 207 (2009). In Meherrin, this Court addressed the defense of sovereign immunity
under all three subsections of Rule 12, since the distinction was important in that case which involved
an interlocutory appeal from an order denying the defendants’ motion to dismiss based on sovereign
immunity. Id. at 384-85, 677 S.E.2d at 207. The distinction is not important here, since the trial court
granted the motion to dismiss and entered a final order.
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Governmental immunity is an affirmative defense, and like other forms of
immunity, must be plead by the defendant.
First, as a complete bar to liability, governmental
immunity constitutes an affirmative defense. As a defense,
governmental immunity cannot, by definition, be raised
until there is a lawsuit to defend against. Affirmative
defenses are raised by a party’s responsive pleading.
Clayton v. Branson, 170 N.C. App. 438, 449, 613 S.E.2d 259, 268 (2005) (citations
omitted). Where a defendant does not raise the affirmative defense of governmental
immunity, normally by a motion to dismiss or answer, it is waived. See Burwell v.
Giant Genie Corp., 115 N.C. App. 680, 684-85, 446 S.E.2d 126, 129 (1994) (“Qualified
immunity is an affirmative defense that must be pleaded by the defendant.
Ordinarily, the failure to plead an affirmative defense results in a waiver unless the
parties agree to try the issue by express or implied consent. . . . Where a defendant
does not raise an affirmative defense in his pleadings or in the trial, he cannot present
it on appeal.” (Citations and quotation marks omitted)).
Even if defendant had a potential affirmative defense of governmental
immunity, defendant would have had to raise this defense or it is waived; the trial
court cannot raise it for the defendant. And as defendant tacitly acknowledges and
plaintiff notes, his 42 U.S.C. § 1983 claim under the United States Constitution would
not be barred by governmental immunity absent an adequate state remedy. See
Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 338, 678 S.E.2d 351, 354
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(2009) (“This Court could hardly have been clearer in its holding in Corum [v.
University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992)]: ‘[I]n the absence
of an adequate state remedy, one whose state constitutional rights have been
abridged has a direct claim against the State under our Constitution.’ Id. at 782, 413
S.E.2d at 289.”). Whether defendant had waived immunity for this type of claim by
purchasing liability insurance coverage is irrelevant, since for a constitutional claim
of this type, defendant would have had no immunity either way.
d. Violation of constitutional rights under 42 U.S.C. § 1983
Although we have determined that the trial court erred to the extent it
dismissed plaintiff’s claims based on governmental immunity, both the order and the
trial court’s explanation of its ruling included another reason for dismissal, so we
must consider if another legal basis could support a directed verdict order. The trial
court’s order did not address the sufficiency of the evidence, but based upon its
statements to the jury, it appears that the trial court did not find the evidence to be
insufficient to support plaintiff’s claim. The trial court stated to the jury, “if we would
have gone forward, I don’t know what you would have decided, whether you would
have decided that the firing was in response to [plaintiff] filing for sheriff, or maybe
you wouldn’t, I don’t know. So I’m not basing my decision on whether someone was
treated correctly or incorrectly.” This statement implies that plaintiff presented
sufficient evidence that the jury could potentially have ruled in his favor, if they found
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his evidence to be credible. The trial court also noted that the evidence showed that
town employees had taken certain actions, but “not the commissioners themselves,
and that’s why I dismissed the federal claims.” The trial court granted directed
verdict based upon the defendant’s argument that the doctrine of respondeat superior
does not apply to plaintiff’s claims under 42 U.S.C. § 1983 or termination in violation
of public policy, because “the Town itself must have a custom or policy that is in
violation of the law” and no evidence was presented that the Town in this case had a
policy that a “Town employee could not run for political office.” But plaintiff did not
need to prove that the Town had a policy that Town employees could not run for
political office. Plaintiff’s claim was based on his allegation and evidence that Chief
Woodard was the official with final policy-making authority as to hiring or firing in
the police department, and that the Town Manager also concurred in the allegedly
unconstitutional firing.
The United States Supreme Court explained this distinction in Pembaur v.
City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986), with an
analysis of a prior United States Supreme Court case, Monell v. Dept. of Soc. Serv. of
City of N.Y., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978):
Monell is a case about responsibility. In the first
part of the opinion, we held that local government units
could be made liable under § 1983 for deprivations of
federal rights, overruling a contrary holding in Monroe v.
Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).
In the second part of the opinion, we recognized a
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limitation on this liability and concluded that a
municipality cannot be made liable by application of the
doctrine of respondeat superior. See Monell, 436 U.S., at
691, 98 S. Ct., at 2036. In part, this conclusion rested upon
the language of § 1983, which imposes liability only on a
person who “subjects, or causes to be subjected,” any
individual to a deprivation of federal rights; we noted that
this language “cannot easily be read to impose liability
vicariously on government bodies solely on the basis of the
existence of an employer-employee relationship with a
tortfeasor.” Id., at 692, 98 S.Ct., at 2036. . . .
The conclusion that tortious conduct, to be the basis
for municipal liability under § 1983, must be pursuant to a
municipality’s “official policy” is contained in this
discussion. The “official policy” requirement was intended
to distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the
municipality is actually responsible. Monell reasoned that
recovery from a municipality is limited to acts that are,
properly speaking, acts “of the municipality” -- that is, acts
which the municipality has officially sanctioned or ordered.
With this understanding, it is plain that municipal
liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances. No one has
ever doubted, for instance, that a municipality may be
liable under § 1983 for a single decision by its properly
constituted legislative body -- whether or not that body had
taken similar action in the past or intended to do so in the
future -- because even a single decision by such a body
unquestionably constitutes an act of official government
policy. . . . Monell’s language makes clear that it expressly
envisioned other officials “whose acts or edicts may fairly be
said to represent official policy,” Monell, supra, 436 U.S., at
694, 98 S. Ct. at 2037-2038, and whose decisions therefore
may give rise to municipal liability under § 1983.
Indeed, any other conclusion would be inconsistent
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with the principles underlying § 1983. . . . However, . . . a
government frequently chooses a course of action tailored
to a particular situation and not intended to control
decisions in later situations. If the decision to adopt that
particular course of action is properly made by that
government’s authorized decisionmakers, it surely
represents an act of official government “policy” as that
term is commonly understood. More importantly, where
action is directed by those who establish governmental
policy, the municipality is equally responsible whether that
action is to be taken only once or to be taken repeatedly.
To deny compensation to the victim would therefore be
contrary to the fundamental purpose of § 1983.
....
Having said this much, we hasten to emphasize that
not every decision by municipal officers automatically
subjects the municipality to § 1983 liability. Municipal
liability attaches only where the decisionmaker possesses
final authority to establish municipal policy with respect to
the action ordered. The fact that a particular official -- even
a policymaking official -- has discretion in the exercise of
particular functions does not, without more, give rise to
municipal liability based on the exercise of that discretion.
See, e.g., Oklahoma City v. Tuttle, 471 U.S., at 822-824, 105
S. Ct., at 2435-2436. The official must also be responsible
for establishing final government policy respecting such
activity before the municipality can be held liable.
Pembaur, 475 U.S. at 478-83, 89 L .Ed. 2d at 462-65, 106 S. Ct. at 1297-1300
(emphasis added).
According to plaintiff’s evidence, defendant provided no process for its
Commissioners to review the decisions of the Chief or Town Manager. Essentially,
defendant’s position is that even if its chief of police and town manager knowingly
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violated the constitutional rights of an employee, defendant can insulate itself from
responsibility by having a policy it leaves these final decisions to these employees and
it will not review any appeal by the wronged employee. This is not the law as
established by the United States Supreme Court.
When, however, an allegedly unconstitutional decision is
made by an official with “final policy making authority,”
then the municipality may be held liable for that official’s
decision, so long as the decision was made by “the official
or officials responsible under state law for making policy in
that area of the city’s business.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 99 L. Ed. 2d
107 (1988). Furthermore, as the Supreme Court explained
in Praprotnik, the hallmark of municipal liability is the
finality of the decision being reviewed: When an official’s
discretionary decisions are constrained by policies not of
that official’s making, those policies, rather than the
subordinate’s departures from them, are the act of the
municipality. Similarly, when a subordinate’s decision is
subject to review by the municipality’s authorized
policymakers, they have retained the authority to measure
the official’s conduct for conformance with their policies. If
the authorized policymakers approve a subordinate’s
decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is
final. Id. at 127, 108 S. Ct. 915. In other words, even if the
allegedly unconstitutional decision is initially made by a
subordinate official, when that decision is appealed to and
affirmed by an official with final authority over a matter,
the municipality may be held liable for this affirmance.
Arendale v. City of Memphis, 519 F.3d 587, 601-02 (6th Cir. 2008).
We realize that defendant’s evidence may present a very different picture of
defendant’s policies and procedures governing hiring and termination of employees,
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but unfortunately, since this case was dismissed after plaintiff’s evidence, we do not
have the benefit of that evidence. We must take the plaintiff’s evidence as true and
draw every reasonable inference in plaintiff’s favor, and if we do so, plaintiff
presented sufficient evidence to survive the motion for directed verdict on his claims
under 42 U.S.C. § 1983.
e. Failure to Join Necessary Party
The trial court also noted that its order was based upon Rule 12(b)(7) of the
Rules of Civil Procedure. Rule 12(b)(7) provides that “[e]very defense, in law or fact,
to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or
third-party claim, shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the pleader be made
by motion: (7) Failure to join a necessary party.” Just as for Rule 12(b)(6), this is a
rule normally invoked at the very beginning of a lawsuit, at the pleading stage, and
defendant never requested joinder of any other parties. But even though defendant
never requested joinder of any other parties, the trial court has the authority, and
even the duty, to order joinder ex mero motu. See Morganton v. Hutton &
Bourbonnais Co., 247 N.C. 666, 668, 101 S.E.2d 679, 682 (1958) (“Whenever, as here,
a fatal defect of parties is disclosed, the Court should refuse to deal with the merits
of the case until the absent parties are brought into the action, and in the absence of
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a proper motion by a competent person, the defect should be corrected by ex mero
motu ruling of the Court.”).
Since joinder of necessary parties is the only issue addressed by Rule 12(b)(7),
and the order cites this rule, we assume that the trial court determined that there
was some other person who was a necessary party.
A person is a necessary party to an action when he
is so vitally interested in the controversy involved in the
action that a valid judgment cannot be rendered in the
action completely and finally determining the controversy
without his presence as a party. When a complete
determination of the matter cannot be had without the
presence of other parties, the court must cause them to be
brought in.
Booker v. Everhart, 294 N.C. 146, 156, 240 S.E.2d 360, 365-66 (1978) (citations
omitted).
We cannot determine from the transcript, record, or order whom the trial court
believed to be a necessary party or why, even if they may be proper parties, they
would be necessary, so we cannot analyze whether they would be necessary parties.
We express no opinion on whether any parties should be joined on remand. But in
any event, if the trial court determined a necessary party had not been joined,
dismissal of plaintiff’s case with prejudice would not be the appropriate result.
Instead, the trial court should have continued the trial and ordered that any
necessary party be joined. “[D]ismissal under Rule 12(b)(7) is proper only when the
defect cannot be cured, and the court ordinarily should order a continuance for the
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absent party to be brought into the action and plead.” Howell v. Fisher, 49 N.C. App.
488, 491, 272 S.E.2d 19, 22 (1980).
There is nothing in the record to indicate that “the defect” (if any) could not be
cured, since we do not know who the alleged necessary party or parties are. And if a
necessary party is not subject to the court’s jurisdiction, dismissal with prejudice still
would not be the appropriate result. Even if a party ordered to be joined as a
necessary party is not subject to the court’s jurisdiction, the
dismissal for failure to join a necessary party is not a
dismissal on the merits and may not be with prejudice. The
same is true, of course, where the party ordered joined is
not a necessary party but is a proper party which the court,
in its discretion, decides should be joined. The following
language relating to Rule 12(b)(7) of the Federal Rules of
Civil Procedure is applicable also to our Rule 12(b)(7):
When faced with a motion under Rule 12(b)(7), the court
will decide if the absent party should be joined as a party.
If it decides in the affirmative, the court will order him
brought into the action. However, if the absentee cannot
be joined, the court must then determine, by balancing the
guiding factors set forth in Rule 19(b), whether to proceed
without him or to dismiss the action. A dismissal under
Rule 12(b)(7) is not considered to be on the merits and is
without prejudice.
Carding Developments v. Gunter & Cooke, 12 N.C. App. 448, 453-54, 183 S.E.2d 834,
838 (1971) (citations, quotation marks, and ellipses omitted).
To the extent that the trial court dismissed plaintiff’s claims based upon failure
to join a necessary party, it erred, and we must reverse the order.
III. Conclusion
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LAMBERT V. TOWN OF SYLVA
Opinion of the Court
Because the trial court granted directed verdict based upon a misapprehension
of the law regarding plaintiff’s claims under 42 U.S.C. § 1983 and erred in dismissing
any claims based upon governmental immunity since it was never pled by defendant,
we reverse the order granting directed verdict and remand for a new trial on all
claims. On remand, before proceeding with another trial, the trial court should allow
the parties to be heard on whether any necessary or proper parties should be joined,
and the trial court should enter any appropriate orders regarding those parties so all
parties may be joined before the matter is set again for trial. But again, we express
no opinion on whether any necessary or proper parties should be joined; we address
this issue only because the trial court’s order addressed it and to provide procedural
guidance on remand.
REVERSED AND REMANDED.
Judges ELMORE and TYSON concur.
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