Ripellino v. North Carolina School Boards Ass'n

•LEVINSON, Judge

concurring in part and dissenting in part.

I concur with the conclusion of the majority opinion that plaintiff’s injuries did not fall within Exclusion 18 of the Coverage Agreement, and that the trial .court’s order must be reversed and remanded for entry of summary judgment in favor of plaintiffs in this respect. However, I disagree with the conclusion that the constitutional claims survived defendants’ Rule 12(c) motions, and therefore respectfully dissent from these portions of the majority opinion. Because it is unnecessary to do so, I make no comment on whether a *457local school board is a “person” within the meaning of 42 U.S.C. § 1983 (2005).

Unlike the majority, I conclude the trial court correctly granted defendants’ N.C. Gen. Stat. § 1A-1, Rule 12(c) (2005) motion for judgment on the pleadings with respect to the constitutional claims, and would therefore affirm the trial court’s order in this respect.

“ A motion for judgment on the pleadings is the proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain.’ ” Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 682, 360 S.E.2d 772, 780 (1987) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974)). “When a motion for judgment on the pleadings is made, the trial court is required to view the facts and permissible inferences in the light most favorable to the non-moving party, and all well pleaded factual allegations in the non-moving party’s pleadings must be taken as true.” Burton v. Kenyon, 46 N.C. App. 309, 310, 264 S.E.2d 808, 809 (1980).

A motion for judgment on the pleadings has some similarities to motions for dismissal for failure to state a claim for relief, under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2005), and summary judgment under N.C. Gen. Stat. § 1A-1, Rule 54 (2005). See Floraday v. Don Galloway Homes, 340 N.C. 223, 224, 456 S.E.2d 303, 304 (1995) (“[Pjursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure, defendant filed a motion for judgment on the pleadings, requesting dismissal of the action on the grounds that the complaint failed to state a claim upon which relief could be granted.”); Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971) (“Motions under Rules 12(b)(6) and 12(c) can be treated as summary judgment motions, the difference being that under Rules 12(b)(6) and 12(c) the motion is decided on the pleadings alone, while under Rule 56 the court may receive and consider various kinds of evidence.”). “The principal difference ... is that a motion under Rule 12(c) ... is properly made after the pleadings are closed while a motion under Rule 12(b)(6) must be made prior to or contemporaneously with the filing of the responsive pleading. Robertson v. Boyd, 88 N.C. App. 437, 440, 363 S.E.2d 672, 675 (1988). Additionally, in addressing a Rule 12(c) motion, the trial court “may consider . . . ‘only the pleadings and exhibits which are attached and incorporated into the pleadings[.]’ ” Davis v. Durham Mental Health/Dev. Disabilities Area Auth., 165 N.C. App. 100, 104, 598 S.E.2d 237, 240 *458(2004) (quoting Helms v. Holland, 124 N.C. App. 629, 633, 478 S.E.2d 513, 516 (1996)) (citation omitted).

Plaintiffs herein sought damages “pursuant to 42 U.S.C. §§ 1983, 1988, the Fifth, the Fourteenth Amendments to the United States Constitution and Article I, [§] 19, of the Constitution of the State of North Carolina.” I conclude that their complaint fails to set forth facts that, accepted as true and allowing all reasonable inferences from those facts, would entitle them to relief under any legal theory, or would demonstrate a genuine issue of material fact.

In reaching this conclusion, I am mindful that in considering a Rule 12(c) motion, “ ‘[w]e are not required ... to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.’ ” Good Hope Hosp. v. Dept. of Health, 174 N.C. App. 266, 274, 620 S.E.2d 873, 880 (2005) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). “Though the trial court is obligated to take all of the allegations of the complaint as true in ruling upon the motion, it is elementary that the trial court must draw its own legal conclusions from those facts, and that it may draw conclusions which may differ from those advocated by plaintiffs.” Affordable Care, Inc. v. N.C. State Bd. of Dental Exam’rs, 153 N.C. App. 527, 532, 571 S.E.2d 52, 57 (2002). See also, Lewis v. College, 23 N.C. App. 122, 127, 208 S.E.2d 404, 407 (1974) (upholding dismissal under Rule 12(b)(6) where alleged facts did not state ground for relief and “[ojther portions of the complaint also contain allegations which, in our view, amount to no more than plaintiffs own unwarranted deductions or conclusions of law”).

Thus, this Court’s analysis of whether the trial court erred by dismissing plaintiffs’ complaint requires us to distinguish between factual allegations and conclusions of law. “Findings of fact are statements of what happened in space and time.” State ex rel. Utilities Comm. v. Eddleman, 320 N.C. 344, 351, 358 S.E.2d 339, 346 (1987). “Matters of judgment are not factual; they are conclusory and based ultimately on various factual considerations.... [Facts] can be objectively ascertained by one or more of the five senses or by mathematical calculation.” State ex rel. Utilities Comm. v. Public Staff, 322 N.C. 689, 693, 370 S.E.2d 567, 570 (1988).

The majority cites the following allegations of plaintiffs’ complaint in support of its conclusion that the trial court erred by dismissing plaintiffs’ claim:

*45915. Upon information and belief, in the past, the Association, Trust Defendants and the Johnston County Board of Education could have raised the doctrine of immunity on many tort claims, but chose instead, for various reasons that will be proven at trial, to pay claims even in light of the immunity defense. Upon information and belief, the Association, Trust Defendants, in conjunction with the Johnston County Board of Education, would examine each claim to see if the immunity doctrine could be raised. Upon information and belief, if the immunity doctrine would be raised, it was raised, but thereafter some claims were nevertheless paid. This disparate treatment of claimholders is prohibited by the United States and North Carolina Constitutions, as well as 42 U.S.C. § 1983.
44. At all times pertinent hereto, [defendants] ... in claiming immunity as to the Plaintiffs’ claims for personal injury and medical expenses, . . . have subjected these Plaintiffs to the deprivation of their equal protection and substantive due process rights under the United States Constitution, as enforced by 42 U.S.C'. § 1983, and Article I, [§] 19 of the North Carolina Constitution.
45. These Plaintiffs have been denied due process and equal protection of the law as the Defendants have paid the property damage, but have asserted immunity in the remaining portion of Plaintiffs’ claim, but have, upon information and belief, customarily waived it for similarly situated individuals who have been compensated for tort damages.
46. [Defendants’] policy and custom of paying some claims but not paying others, when immunity could be raised in each one, has played a part in the violation of federal and state law. Additionally, the Defendants’ conduct in this case, of paying the property damage, and assuming liability for the claim, and then refusing to pay the personal injury and medical expense portion of the claim, is a violation of Plaintiffs’ federal and state constitutional rights, as a matter of law.
47. Upon information and belief, the [Defendants] have what amounts to be unbridled discretion to resolve claims filed with the local board of education.
*46048. As a result of the conduct of these Defendants, the Plaintiffs have been deprived of their right to recover for the bodily injury and medical expenses portion of the Ripellino claim.
49. The Fourteenth Amendment to the United States Constitution, Article I, [§] 19 of the North Carolina Constitution, and 42 U.S.C. § 1983 protect these Plaintiffs against intentional and arbitrary discrimination, being the conduct of the [defendants] as to these Plaintiffs.
50. As a proximate result of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, [§] 19 of the Constitution of the State of North Carolina, and 42 U.S.C. § 1983 violations by [defendants], Plaintiffs are entitled to recover damages[.]

In reviewing the trial court’s dismissal under Rule 12(c), I rely in part on this Court’s recent opinion in Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259 (2005), disc. review denied, 360 N.C. 174, — S.E.2d — (2005). The opinion in Branson sets out a comprehensive legal “roadmap” for review of constitutional claims based on a governmental unit’s settlement policies and practices. Although (1) the instant case involves a Rule 12(c) motion while Branson reviewed the trial court’s ruling on a motion for JNOV, and (2) different facts are present in each case, I conclude that Branson resolves certain legal issues raised in both cases.

Plaintiffs’ factual allegations, considered singly or together, in conjunction with inferences logically drawn from these facts, do not state a claim for relief. Plaintiffs assert in paragraph No. 15 that defendants examined each claim to determine if the defense of governmental immunity would be available. Plaintiffs allege, in paragraphs Nos. 15, 45, and 46, that plaintiffs have paid damages to certain tort claimants, but would not pay plaintiffs’ claim. And, in paragraphs Nos. 45 and 46, plaintiffs allege that defendants paid part of their claim, but did not pay all of it. These factual allegations, taken as true, do not give rise to liability as discussed below.

Plaintiffs further allege that by settling some claims defendants thereby “waived” the defense of governmental immunity, and that by refusing to offer plaintiffs a settlement, defendants were “raising” the defense of governmental immunity. Plaintiffs’ characterization of defendants’ actions is a conclusion of law, which the court is not required to accept as true, and is, in any event, simply an erroneous conclusion of law.

*461Branson observed that, as an affirmative defense, “governmental immunity cannot, by definition, be raised until there is a lawsuit to defend against.” Id. at 449, 613 S.E.2d at 268. On this basis, Branson held that “the execution of settlement contracts between a municipality and tort claimants do not constitute waivers of the affirmative defense of governmental immunity.” Id. This reasoning is applicable to the instant case. Accordingly, plaintiffs’ allegation, that defendants may have compensated other tort claimants, does not support an inference that defendants raised the defense of immunity in response to a lawsuit, nor that they subsequently waived the defense.

Plaintiffs herein also state that defendants have “unbridled discretion” to decide whether to settle claims. In other words, plaintiffs complain that defendants’ authority over tort claims is not subject to regulation, and is constrained only by state and federal constitutional prohibitions on discrimination. Plaintiffs further assert that defendants’ “unbridled discretion” violates their constitutional right to substantive and procedural due process. Again, this is not a statement of fact, but is a legal conclusion that need not be accepted at face value.

Plaintiffs’ position, that defendants’ freedom to decide when to compensate claimants violates their constitutional rights, rests on the premise that there is a right to recover damages that cannot be abrogated without procedural due process, and that such right must be administered according to definite objective criteria. “However, § 1983 does not create constitutional rights, and is available only to enforce constitutional rights whose source may be identified[.]” Id. at 451-52, 613 S.E.2d at 269. Consequently, plaintiffs’ statement that defendants enjoy the discretion to decide when to settle claims does not support recovery unless plaintiffs also allege facts supporting an inference that they have a constitutionally protected legal right at issue.

As discussed in Branson, the right to procedural due process arises only upon the existence of a constitutionally protected property right and, absent a valid waiver of governmental immunity, a plaintiff has no “right” to recover damages from a governmental defendant. Therefore, plaintiffs clearly have no protected property right that would give rise to procedural due process rights:

Plaintiff herein claims a constitutionally protected property interest in his right to recover damages from the city. .... As discussed above, absent a waiver of governmental immunity by the *462purchase of liability insurance, plaintiff is barred from maintaining a lawsuit against the city. As plaintiff has no right to maintain a suit against the city, under the facts set forth in this opinion, he cannot have a “constitutionally protected” property right to do so.

Id. at 452-53, 613 S.E.2d at 270. Inasmuch as plaintiffs have no constitutionally protected right to recover from defendants, and therefore have no procedural due process rights, defendants’ freedom to exercise discretion does not support an inference that plaintiffs rights to procedural due process are being violated:

[I]t is undisputed that settlement offers, if any, are in the discretion of the city. Simple logic dictates that a party cannot have a right or entitlement to a benefit whose dispensation rests entirely in the discretion of the city[.]... Accordingly, the city’s discretion to choose whether to settle with a claimant is not a constitutional violation of procedural due process[.]

Id.

Moreover, defendants’ payment of damages to certain tort claimants does not constitute the granting of a “right” akin to a person’s right to, e.g., a license issued by a government zoning board or the receipt of welfare benefits. In each of these circumstances a governmental unit, although not constitutionally required to do so, has extended a right to its- citizens, subject to conditions articulated by statute or ordinance. However, in the present case, no “right” to compensation is identified. Where the existence of a right is clearly established, its administration may not depend on the whim or unlimited discretion of a government official. Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590 (2000). However, Dobrowolska did not hold that, whenever a state or local governmental employee takes any action, makes a decision, or compensates a citizen for any loss, that a new “right” is thereby established, or that such decisions are per se unconstitutional if they are discretionary decisions by a government employee.

In the instant case, I conclude that plaintiffs failed to allege facts that would support an inference that they enjoyed a constitutionally protected right to compensation by defendants. The factual allegations of plaintiffs’ complaint, reduced to their essentials, are that:

1. Defendants examine tort claims against them to ascertain the applicability of the affirmative defense of governmental immunity to the facts of the case.
*4632. Defendants customarily pay damages to some tort claimants, % but not to all of them.
3. Defendants have the power to decide if and how they will offer a settlement to a tort claimant.
4. Defendants paid part of the damages asserted by plaintiffs, but not the whole claim.

These facts do not give rise to liability, and the remaining paragraphs from plaintiffs’ complaint cited above consist of unwarranted legal conclusions that plaintiffs attempt to draw from these facts. For example, plaintiffs make the conclusory statements that defendants’ conduct violates their rights to substantive due process, and that defendants violated their rights under the Equal Protection Clause by denying their claim but paying damages to “similarly situated” claimants.

It is true that appropriate factual allegations can support a claim of violation of Equal Protection rights, based on disparate treatment of similarly situated individuals:

[M]ost laws differentiate in some fashion between classes of persons. The Equal Protection Clause . . . simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.

Branson, 170 N.C. App. at 456-57, 613 S.E.2d at 272 (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1, 12 (1992)). However, in the instant case, as in Branson, plaintiffs “[did] not identify any classification upon which [they were] denied equal protection[,] ... [or allege] the use of any inherently suspect criteria, such as race, religion, or disability status.” Branson, id. Indeed, plaintiffs wholly fail to indicate, even in the most general terms, the kind of discrimination they allege, or the nature of the “relevant respects” in which other tort claimants were allegedly “similarly situated.” Consequently, the allegations of their complaint provide no notice to defendants as to what actions or transactions are allegedly discriminatory. Do plaintiffs mean to suggest that defendants only' compensate tort claimants if they are from a particular part of the county; are school employees; belong to a particular political party; are of a certain race or gender; go to church with a school board member; or only if the damages claimed are below a certain amount? Because plaintiffs fail to allege any facts, there is no way to know.

*464The standard for sufficiency of a complaint under our theory of “notice pleading” has been stated as follows:

In order for plaintiffs’ complaint to have withstood defendant’s motion to dismiss, the complaint must. . . provide defendant sufficient notice of the conduct on which the claim is based to enable defendant to respond and prepare for trial[.] . . . For the purpose of ruling on a motion to dismiss . . . conclusions of law or unwarranted deductions of fact are not admitted. Under the notice theory of pleadings, a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial[.]

Hill v. Perkins, 84 N.C. App. 644, 647, 353 S.E.2d 686, 688 (1987) (emphasis added) (citations omitted). “ ‘In reviewing a dismissal of a complaint for failure to státe a claim, the appellate court must determine whether the complaint alleges the substantive elements of a legally recognized claim and whether it gives sufficient notice of the events which produced the claim to enable the adverse party to prepare for trial.’ ” Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002) (quoting Brandis v. Lightmotive Fatman, Inc., 115 N.C. App. 59, 62, 443 S.E.2d 887, 888 (1994)).

In the instant case, the “fallacy with plaintiffs’ . . . complaint, is that statements of law . . . substitute for alleging sufficient facts from .which it may be determined what liability forming conduct is being complained of and what injury plaintiffs have suffered.” Hill, 84 N.C. App. at 648, 353 S.E.2d at 689.1 conclude that plaintiffs failed to state a claim for violation of their equal protection rights, even under the liberal standards of notice pleading.

Finally, I respectfully observe that the majority opinion’s statement that the “allegations [in the complaint] amount to more than ‘conclusory, unwarranted deductions of fact, or unreasonable inferences’ ” fails to meet the legal implications of Branson. I conclude that, under Branson and cases cited therein, plaintiffs failed to allege facts that, if proved, would entitle them to relief under their constitutional claims. Accordingly, I would uphold the trial court’s dismissal of plaintiffs’ constitutional claims.