The News & Observer Publ'g Co. v. McCroryÂ
251 N.C. App. 211
N.C. Ct. App.2016Background
- Plaintiffs (media organizations and public-interest nonprofits) sued the Governor and several cabinet secretaries under North Carolina’s Public Records Act (Ch. 132), alleging systematic delays, denials, overcharging, and other procedures that frustrated access to public records.
- Plaintiffs sought declaratory relief, mandamus-like relief to compel production, and attorneys’ fees under §132-9.
- Defendants (the Administration) moved for partial judgment on the pleadings; the trial court’s 29 April 2016 order granted and denied parts of that motion and left some issues for further discovery.
- The trial court’s order contained an ambiguous reference to sovereign immunity; the court later issued a supplemental order clarifying that sovereign immunity had not been properly raised below and therefore was not decided.
- The Administration appealed the interlocutory order, asserting that a ruling on sovereign immunity (an interlocutory order affecting a substantial right) entitled it to immediate appellate review.
- The Court of Appeals dismissed the appeal because sovereign immunity had not been properly pled or argued in the trial court and thus the interlocutory order did not present a reviewable sovereign-immunity ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the interlocutory order is immediately appealable because it decides sovereign immunity | Plaintiffs argued sovereign immunity was not decided below and was not properly raised, so no appeal on that ground is available | Administration argued the order involved sovereign immunity (a substantial right) and so immediate appeal is proper | Held: Not appealable on that ground—sovereign immunity was not properly pled or argued below, so interlocutory review is unavailable |
| Whether sovereign immunity was properly preserved/raised below | Plaintiffs: Defendants failed to plead sovereign immunity in their answer or move to amend, and Plaintiffs had no opportunity to respond | Defendants: Cited cases allowing unpled defenses to be considered at summary judgment or raised at hearing; argued the court implicitly addressed immunity | Held: Sovereign immunity is an affirmative defense that must ordinarily be pleaded or properly raised; here it was not pleaded, briefed, or properly argued, so it was not before the trial court |
| Whether exceptions (e.g., Gillespie/Dickens/Mullis) allow consideration of unpled sovereign-immunity defenses | Plaintiffs: Exceptions in those cases are narrow and fact-specific; they don’t apply because Plaintiffs were surprised and had no chance to respond | Defendants: Relied on those cases to argue an unpled immunity defense may be considered where the issue was before the court or evident from the record | Held: Exceptions do not apply—those cases involved circumstances where the opposing party was aware and had an opportunity to address the defense; that was not true here |
| Whether the trial court’s supplemental order cured any ambiguity and allowed appeal | Plaintiffs: Supplemental order shows court never ruled on immunity; appeal premature | Defendants: Timely appealed after the original order; supplemental order came after the notice of appeal and was meant only to clarify | Held: Supplemental order confirms immunity was not decided; there is no interlocutory ruling on immunity to support immediate appeal; appeal dismissed |
Key Cases Cited
- Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334 (N.C. 2009) (sovereign immunity shields government from suit unless waived)
- Can Am S., LLC v. State, 234 N.C. App. 119 (N.C. Ct. App. 2014) (interlocutory appeal available when order affects a substantial right)
- Webb v. Nicholson, 178 N.C. App. 362 (N.C. Ct. App. 2006) (denial of Rule 12(c) motion based on sovereign immunity affects a substantial right)
- Dickens v. Puryear, 302 N.C. 437 (N.C. 1981) (unpled affirmative defenses may be considered at summary judgment only when opposing party was not surprised and had full opportunity to address them)
- N.C. Nat’l Bank v. Gillespie, 291 N.C. 303 (N.C. 1976) (liberal amendment of pleadings to conform to proof at summary judgment in limited circumstances)
- Mullis v. Sechrest, 126 N.C. App. 91 (N.C. Ct. App. 1997) (unpled sovereign-immunity defense may be considered at summary judgment where the issue was clearly before the court)
- Nat Harrison Assocs., Inc. v. N.C. State Ports Auth., 280 N.C. 251 (N.C. 1972) (when state consent to suit is statutory, the statutory procedures and remedies are exclusive)
- Shella v. Moon, 125 N.C. App. 607 (N.C. Ct. App. 1997) (remedy under §132-9 is opportunity to inspect public records; case dismissed as moot when records were produced)
- Veazey v. City of Durham, 231 N.C. 357 (N.C. 1950) (definition and limits of interlocutory orders)
- Goldston v. American Motors Corp., 326 N.C. 723 (N.C. 1990) (general rule against immediate appeals from interlocutory orders)
- Burwell v. Giant Genie Corp., 115 N.C. App. 680 (N.C. Ct. App. 1994) (failure to plead affirmative defense results in waiver)
- Forbes v. Par Ten Group, Inc., 99 N.C. App. 587 (N.C. Ct. App. 1990) (failure to plead an affirmative defense bars raising it on appeal)
- Paquette v. County of Durham, 155 N.C. App. 415 (N.C. Ct. App. 2002) (claims barred where complaint fails to allege waiver of sovereign immunity)