COA Splits Again Over Public Duty Doctrine

In Watts v. N.C. Dep't of Env't & Natural Res., filed today, the COA split again over the application of the public duty doctrine.

The public duty doctrine limits government tort liability even where sovereign immunity has been waived. The doctrine provides that where the government owes a duty to the general public, individual plaintiffs may not enforce the duty through suing in tort.

Notably, the public duty doctrine does not apply where (1) there is a special relationship between the injured party and the governmental entity, and (2) the governmental entity creates a special duty by promising protection, which it then fails to provide despite the other party's detrimental reliance on the promise.

In Watts, the plaintiff bought undeveloped land with the intent to develop a house on it. At the time of purchase, the soil had been tested and a permit allowing for the intended development had been issued. Later, when the plaintiff sought approval for an unrelated change to the development plan, the permit was revoked because the soil was in fact not suitable for the intended development.

The Watts majority held that DENR stipulated to facts that, in and of themselves, supported the application of the special duty exception to the public duty doctrine and opened DENR up to tort liability.

Judge Tyson dissented. Judge Tyson would have held that the public duty doctrine applied and that plaintiff's suit against DENR was barred by the doctrine. In Judge Tyson's view, the plaintiff failed to assert or prove either exception to the public duty doctrine.

Particularly interesting is Judge Tyson's determination that DENR's inspection and issuance of permits is a duty owed to the general public and not to any individual such as the owner of the property subject to the permits. Isn't just about every State duty intended in some way to benefit the public? Couldn't just about every State duty therefore be cast as a public duty, thereby obliterating the exceptions to the public duty doctrine? The pending Multiple Claimants v. N.C. Dep't of Health & Human Servs., in which Judge Tyson also dissented and would have applied the public duty doctrine to bar suit, has already put the public duty doctrine and how to apply exceptions to it before the Supreme Court.

Appeal Dismissed For Insufficient Assignments Of Error, Though COA Still Reviewed Merits

In the unpublished State v Oxendine, filed today, the COA dismissed an appeal for deficient assignments of error. The Court said the assignments failed to specify any legal basis for the alleged errors.

Notably, the Court also looked to the assignments' transcript references, but found those, too, failed to provide any further specification of the basis for the defendant's assignments of error.

Also importantly, while the COA dismissed the appeal due to the deficient assignments of error, which failed to preserve the defendant's arguments, the Court nevertheless reviewed the appeal on the merits and found the appeal to be without merit.

COA Dismisses An Appeal For "Very Substantial" Rules Violations

In Person Earth Movers, Inc. v. Thomas, the COA dismissed an appeal based on "very substantial" appellate rules violations "that impair [the Court's] ability to comprehend this case and the issues."

In Person Earth Movers (in which no brief was filed by the appellee), the COA faulted the appellant for: 1) failure to include a statement of grounds for appellate review; 2) providing a vague 1-paragraph statement of facts without specific page references to the large transcript and record; 3) providing no statement of the applicable standard(s) of review; 4) deficient assignments of error; 5) failure, in part of his argument, to cite any legal authorities; and 6) deficient arguments that would have required the Court to articulate those arguments for the appellant.

Notably, the COA stated that "when viewed in tandem, the nature and significance of plaintiff's rules violations warrant dismissal of the subject appeal." The Court quoted Caldwell v. Branch, __ N.C. App. __, 638 S.E.2d 552 (2007), in which the Court noted a trend to dismiss appeals for substantial, numerous, or multiple violations rather than a single violation.

Dismissal Of Breach Of Contract Action With Ostensibly Fewer Than All Parties Signing Affirmed

In Parker v. Glosson, a divided panel of the COA ruled today that a breach of contract action based on a contract requiring all parties' signatures to be enforceable could not withstand a motion to dismiss where: 1) part of the contract identified 2 sellers and no buyer; and 2) the contract was signed by 1 seller and 1 buyer.

In Parker, the parties had a real estate sale contract. The contract said it "shall become an enforceable contract when a fully executed copy has been communicated to both parties." At the beginning of the contract, there were spaces for identifying the buyer and the seller. In those spaces, 2 sellers, plaintiff and a Sandy Glosson were identified. No buyer was identified. At the end of the contract, there were spaces designated for the signatures of the buyer and the seller. There, only one seller, the plaintiff, and one buyer signed the contract. Sandy Glosson did not sign the document.

The COA majority held that the contract required execution, i.e., the signature, of all parties to become enforceable. Because 2 sellers had been identified at the beginning of the contract but only one had signed, the COA majority held that not all parties had executed the contract and that the contract was therefore not enforceable. Plaintiff's suit based on the unenforceable contract was therefore properly dismissed.

Judge Tyson dissented. Judge Tyson focused on the standard for dismissing a claim under Civil Procedure Rule 12(b)(6). That standard demands that a case should not be dismissed unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim and that the complaint must be liberally construed.

Judge Tyson would have held that the fact that Sandy Glosson, whose identity, status, and interest weren't defined and who wasn't a party to the law suit, did not sign the contract did not make the contract per se unenforceable. For example, if the plaintiff signed the contract as Sandy's agent, a fact that could perhaps be proven with parol evidence, the contract might not be unenforceable. Moreover, Judge Tyson would also hold that the contract was enforceable against the defendant seller, Douglas Glosson, to the extent of his interest in the property (a fact not established). And to the extent the trial court's dismissal of the plaintiff's suit was based on the statute of frauds, which requires a written contract for a land sale, Judge Tyson would hold that the statute of frauds cannot support a 12(b)(6) dismissal but must be raised in an answer and argued, e.g., at the summary judgment stage.

Governor Not Required To Disclose Clemency Materials

The COA ruled today, in a suit the News & Observer brought against Governor Easley, that clemency materials the N&O sought access to via the Public Records Act are not subject to the Act and do not need to be disclosed.

The COA noted that the power to grant or deny clemency lies in the sole discretion of the Governor, and the NC constitution provides that this power is subject only to regulations prescribed by law relative to the manner of applying for pardons.

The Public Records Act provides a right of access to public records and public information compiled by the agencies of North Carolina government.

At issue here was whether the Public Records Act constituted a regulation to which the Governor's clemency powers were subject, making all records related to clemency subject to public disclosure. The COA held they weren't.

The COA noted that the Public Records Act didn't reference or pertain specifically to pardons and was not a law "relative to the manner of applying for pardons." The couple of laws that do specifically pertain to the manner of applying for pardons do not specify that related records are public, and clemency materials beyond those statutes are also not subject to any other specific disclosure regime. In the absence of a specific disclosure law, and in the face of the legislature's limited powers regarding clemency and separation of powers concerns, the COA refused to infer mandatory disclosure.

COA Slaps Counsel With Fine, But Doesn't Dismiss, For Rules Violation

In Vignola v. Apogee Construction, filed today the COA reached the merits of an appeal where the appellant clearly violated the appellate rules. Specifically, the appellant failed to provide the applicable standard of review for any of its assignments of error. Nevertheless, the COA didn't dismiss but instead ordered defendant's counsel to pay the printing costs of the appeal.

This case may further evidence a softening toward rules violations by some judges, who may be inclined to dismiss appeals only where violations are “substantial,” “numerous,” or “multiple." (Though this softening is hard to square with In re C.T. and B.T. , and Ribble before it, where even inconsequential omission of a certificate of service is grounds for dismissal.)

Party Challenging Liquidated Damages Provision Bears Burden

In Seven Seventeen HB Charlotte Corp. v. Shrine Bowl of the Carolinas, the COA held today that a party challenging a liquidated damages provision (a contract provision pre-determining the amount of damages in the event of a breach) bears the burden of proving that the provision is unenforceable.

In Seven Seventeen HB Charlotte, the defendant appellant argued that the plaintiff had failed to offer evidence on the amount of damages the plaintiff claimed it was entitled to. The COA indicated that the very nature of liquidated damages blunted the defendant's argument: If the liquidated damages provision were enforceable, the amount of damages to which the plaintiff would be entitled would be established by contract.

As to the enforceability of the liquidated damages provision, the COA put the burden of establishing whether a liquidated damages provision is enforceable on the party seeking to invalidate the provision. The court said "the purpose of a liquidated damages provision is to obviate the need for the nonbreaching party to prove actual damages" and "placing the burden on the party seeking to invalidate a stipulated damages provision [is] appropriate because that party . . . initially agreed to it."

Missing Certificate Of Service Sends Another Appeal Sailing

In In re C.T. and B.T., filed today, the COA offered up a Ribble redux, dismissing another appeal because the certificate of service for the notice of appeal was not included in the record on appeal.

Sean posted several months back on Ribble v. Ribble, ___ N.C. App. ___, ___, 637 S.E.2d 239, 240 (2006).

In In re C.T. and B.T., as in Ribble, the notice of appeal was included in the record, but the certificate of service for the notice was not. Citing Ribble and Viar, the COA dismissed the appeal due to the appellant's failure to include in the record the certificate of service for the notice.

In In re C.T. and B.T. as in Ribble, the Court indicated that in the wake of Viar, the failure to include a certificate of service is no inconsequential appellate rules violation. The Court rejected precedent indicating otherwise, including Hale v. Afro-American Arts Int'l, 110 N.C. App. 621, 430 S.E.2d 457 (Wynn, J., dissenting), rev'd per curiam for the reasons stated in the dissent, 335 N.C. 231, 436 S.E.2d 588 (1993). And the appellate rules the Court indicated had been violated were Rules 3 and 26, neither of which speaks (at least directly) to the contents of the record on appeal.

Judge Wynn, the author of the Hale dissent, dissented in In re C.T. and B.T., too, citing to the reasoning in his Hale dissent (i.e., that service of the notice of appeal is analogous to service of process and may be waived, and failure to include the proof of service in the record may be inconsequential). Judge Wynn also stated that Viar did not, and Ribble could not, overrule Hale.

NC SCT Will Issue Orders This Friday, March 9

This Friday the NC SCT will issue orders in pending matters. Presumably opinions too.