Daisy Abbott ("plaintiff) appeals from an order of the trial court dismissing on sovereign immunity grounds her claim for relief against her employer, the North Carolina Board of Nursing ("the Board"). Plaintiff contends the Board is not a state agency to which sovereign immunity applies. We affirm the order of the trial court.
On 27 May 2004, plaintiff filed a complaint in Franklin County Superior Court alleging, inter alia, that the Board wrongfully terminated her employment. The complaint contained no allegations regarding any waiver of sovereign immunity by the Board. The Board filed a motion to dismiss pursuant to Rules 12(b)(1), (2), and (6) of the North Carolina Rules of Civil Procedure. By order entered 12 November 2004, the trial court concluded that plaintiff's claims were barred by the doctrine of sovereign immunity and dismissed the complaint. Plaintiff appeals.
Plaintiff argues that the trial court erred in dismissing her claims on the basis of sovereign immunity and in failing to hear or consider her other arguments prior to ruling. "Under the doctrine of sovereign *Page 47 immunity, the State is immune from suit absent waiver of immunity." Meyer v. Walls, 347 N.C. 97, 104,489 S.E.2d 880, 884 (1997). The doctrine also applies to state agencies being sued for the performance of a governmental function.Vest v. Easley, 145 N.C. App. 70, 73, 549 S.E.2d 568,572 (2001). Plaintiff contends that the Board is not a state agency and, therefore, sovereign immunity does not apply. We disagree.
The Board was created by the General Assembly. N.C. Gen. Stat. § 90-171.21 (2005). The Board's duties include: (1) licensing nurses in the state, (2) establishing criteria for nursing programs in the state, (3) prosecuting persons violating the Nursing Practice Act, (4) reviewing and approving nursing programs in the state, and (5) approving continuing education for nurses. N.C. Gen. Stat. § 90-171.23(b) (2005). The Governor and General Assembly appoint three members of the Board. N.C. Gen. Stat. § 90-171.21(b). The legislative enactment, governmental appointment of members to the Board, and public purpose performed by the Board make the Board an agency of the state entitled to the defense of sovereign immunity.See Mazzucco v. Board of Medical Examiners,31 N.C. App. 47, 49, 228 S.E.2d 529, 531 (1976) (citation omitted) (stating that the Board of Medical Examiners was created by statute "`to properly regulate the practice of medicine and surgery[,]'" and is a state agency). We therefore overrule this assignment of error.
Plaintiff next argues that the trial court erred in relying on documentation submitted by the Board in determining whether it is a state agency. This argument does not relate to plaintiff's assignments of error. "[T]he `scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in theappellant's brief does not correspond to a proper assignment oferror, the matter is not properly considered by the appellatecourt.'" Walker v. Walker, 174 N.C. App. 778, 781,624 S.E.2d 639, 641 (2005) (quoting Bustle v. Rice,116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)). Moreover, as we have already determined that the Board is a state agency solely by examining the statutes, this assignment of error is irrelevant. Accordingly, this assignment of error is dismissed.
The dissent contends that plaintiff's complaint states a claim for relief pursuant to section 9-32 of the General Statutes, which, the dissent would hold, waives the State's sovereign immunity. Although the dissent's interpretation of section 9-32 is compelling, we do not reach *Page 48 this issue, as it was never raised by the parties. It was not the basis of any assignment of error; it was never addressed or argued by the parties, nor was it ever considered by the trial court. Indeed, plaintiff failed to allege in her complaint that sovereign immunity had been waived. See Paquette v. Countyof Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717 (2002) (citation omitted) (stating that, "[i]n order to overcome a defense of governmental immunity, the complaint must specifically allege a waiver of governmental immunity. Absent such an allegation, the complaint fails to state a cause of action"). Rather, the issue was raised for the first time by the dissent during oral argument of the case. The dissent's position in effect creates an appeal for plaintiff and places the Board at a distinct disadvantage. Indeed, the Board has filed a "Motion for Leave to File Additional Authority and Argument" in which it requests the opportunity to address the question of whether section 9-32 waives sovereign immunity, because when the issue was raised by the dissent at oral argument, "[c]ounsel had not researched this specific issue and were able only to provide discussion of generally applicable law in response to the Court's questions." "It is not the role of the appellate courts . . . to create an appeal for an appellant." Viar v. N.C.Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). "[T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule." Id.
The dissent nevertheless asserts that the Board moved to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) (subject matter jurisdiction) and Rule 12(b)(2) (personal jurisdiction). The dissent reasons that, as jurisdictional issues may be addressed for the first time on appeal, we may therefore properly address the issue of waiver ex mero motu. However, the Board only moved to dismiss plaintiff's third claim, negligent infliction of emotional distress, pursuant to Rules 12(b)(1) and (2). The Board moved to dismiss plaintiff's statutory claim, violation of section 9-32, pursuant to Rule 12(b)(6) (failure to state a claim). On appeal, the parties moreover stipulated that the trial court had both subject matter jurisdiction and personal jurisdiction over the matter. Because the question of whether section 9-32 waives sovereign immunity was never addressed by the trial court or the parties, the issue is not properly before us.
Plaintiff's remaining assignment of error states: "The lower court erred in failing to hear or consider [plaintiff's] other arguments regarding issues relating to [the Board's] motion to dismiss." This *Page 49 assignment of error fails to state the "legal basis upon which error is assigned." N.C.R. App. P. 10(c)(1); see alsoWalker, 174 N.C. App. at 780, 624 S.E.2d at 641. We therefore dismiss this assignment of error.
The order of the trial court dismissing plaintiff's complaint is hereby affirmed.
Affirmed.
Judge JACKSON concurs.
Judge WYNN concurs in part and dissents in part in a separate opinion.