*1 43 THE COURT OF IN v. FEAZIEE App. (1999)] 43
[135 S.E.2d 578, 586, reh’g 360 534, 546, losses party alleged has business caused (1987). Where a appropriate inquiry is whether the conduct, the intentional tortious probable of the consequences the natural and result defendants’ were parties’ within the consequences whether were conduct and not Meiselman, contemplation. legal Steffan spec- As not remote or long as evidence is S.E.2d anticipated jury profits is to aid the ulative, evidence of admissible injury and not the measure estimating the extent sustained may show S.E.2d at 629-30.Parties also damages. See id. profits regularly busi- proving the of a established damages usual prior ness to the tortious conduct. Id. non-moving party, we con- all in favor of the
Taking inferences plaintiff presented has sufficient evidence of clude that the expert summary Plaintiff’s witness judgment. to survive a motion for ninety eighty thou- had five testified that suffered She based as the result of defendants’ conduct. sand dollars losses plaintiff prior to the conduct this on revenues earned conclusion possible We con- on future revenues. of defendants and evidence overly speculative sufficient to clude this evidence summary See id. judgment. a motion for withstand part, and remanded. part, reversed Affirmed WALKERand concur. Judges McGEE MURRAY, FRAZIER, HENRY C. v. MAUREEN DEMAREST L. REGINALD BURNEY, BABB, JR., DISCIPLINARY HEARING COMMIS- JAMES LEE BAR, Defendants THE CAROLINA STATE SION OF NORTH No. COA98-446 September 1999) (Filed 21 lia- only the state — no Act— 1. Tort Claims Com- bility for individual officers — disbarment to enforce mission — plain- dismissing not err in Commission did The Industrial under the Tort defendants against the individual tiff’s claims *2 imprisonment, Claims Act for false intentional infliction of emo- distress, tional of emotional distress based Hearing on defendants’ exercise of the statutory authority Commission’s to enforce an order of disbar- by contempt powers ment criminal because Tort Claims Act applies only against state, to claims and not for the of individual officers. jurisdiction
2. Tort Claims Act— of Industrial Commission— for intentional Commis- acts — statutory authority by to enforce disbarment crimi- sion — contempt nal plain- The Industrial Commission did not err in dismissing tiff’s claims defendant Commission imprisonment under the Tort Claims Act false for and intentional infliction of on emotional distress based defendants’ exercise of statutory authority its by to enforce its order disbarment crim- contempt powers inal give because the Tort Claims Act does not jurisdiction the Industrial Commission award based on intentional acts. Tort negligence
3. Claims Act— doctrine bars— — Disciplinary Hearing Commission — enforce disbarment criminal plain-
The Industrial Commission did not err in dismissing tiff’s claims defendant Hearing Commission under the Tort Claims Act for negligent infliction of emotional distress based statutory authority on defendants’ exercise its enforce its contempt powers order disbarment arising performance because in the of duties for large are barred unless the exceptions special claim falls within the of a relation- ship special duty. or a Judge part concurs dissents Timmons-Goodson
part. appeals Plaintiff January from decision and order entered by the North Carolina Industrial Commission. Heard the Court of Appeals February 1999. THE OF APPEALS
IN COURT FRAZIER - Michaux, Michaux, P.A., by C. & Eric
Michaux for appellant. Attorney Easley, by F. Assistant Attorney General Michael Miller, defendant-appellees. Sigsbee D. General HUNTER,Judge. Reginald appeals L. from a decision the North Frazier complaints against dismissing his
Carolina Industrial Commission Burney Murray, Henry Babb, Jr., C. James Lee Maureen Demarest of the North Carolina State Bar imprisonment, infliction of emotional distress for false intentional distress. *3 emotional plaintiff Disciplinary Hearing The Commission disbarred practice practice of law on 6 November 1989.Plaintiffs license to plain- When were made that allegations law has not been reinstated. law, Disciplinary Commission practice Hearing to tiff continued Attorney attempted County prosecute District to have the Craven attorney practice of law. The plaintiff for the unauthorized district plaintiff. Disciplinary Hearing against the The refused to take action Superior D. Marsh requested Judge that Court Commission then contempt. Judge McClelland plaintiff hold in criminal McClelland by contempt order a legal to enforce the disbarment found no basis Disciplinary Hearing Commission was that proceeding ruled punish plaintiff contempt. The State Bar did to for without appeal ruling. not allegations plaintiff was response in to August
On 10 request- motion, law, Bar a show-cause practicing the State filed still Hearing issue an order com- Disciplinary Commission ing that the why appear show cause as to he should plaintiff to manding practice in viola- continuing to law contempt for be held in criminal Murray, of the order. chair 1989 disbarment tion plaintiff ordering Commission, the show-cause order issued and the order were Both the motion appear on 3 October 1994. to personal service of plaintiff certified mail and served on County Department. Craven Sheriffs hearing. Burney the show-cause conducted
Murray, Babb and by Fred Williams.The represented present, was Plaintiff was not but plaintiff guilty of sixteen found Hearing Commission Disciplinary Hearing Commis- contempt. counts of IN OF THE COURT thirty jail days $200.00 sion sentenced in and a fine of Disciplinary Hearing for each of the sixteen counts. The Commis- requested consecutively served, resulting sion that the sentences be days a jail, $3,200.00 combined sentence of 480 in fines and costs. January
Plaintiff was arrested and incarcerated on 25 1995. corpus Pursuant to writ of habeas issued the United States Carolina, plaintiff District Court for Eastern District of North was ordered released on 13 1995. November That Court made the follow- disposition: ing
Accordingly, this court orders the issuance of a writ of habeas corpus releasing Mr. Frazier from the conviction and sentence imposed heretofore Hearing Commission of Bar, the North State days entry Carolina unless within 30 from the order, of this the DHC affords Mr. right Frazier notice of his appeal Superior County upon Court Wake the times and provided terms the General Statues North Carolina. French, 5:95-HC-463-BO, Frazier v. (E.D.N.C., No. 1996) filed Nov. slip op. at 13. The gave Commission notice and plaintiff appealed County Superior the Wake appeal Court. The now pending that forum.
Plaintiff filed a Act, under the Tort Claims Gen. (1999), against 143-291 individual defendants and the imprisonment alleging false *4 intentional Disciplinary The distress. Commission filed a to pur- motion dismiss on behalf of all defendants suant to Gen. 1A-1, N.C. Stat. 12(b)(1), (2) (6) § Rules and and on behalf of the defendants as individuals 12(b)(4) (5). under Rules and Plaintiff an complaint filed amended to include negligent infliction of emotional distress. The amended was authorized in an order Commissioner S. Bernadine Ballance. The Hearing Commission filed a motion to dismiss the amended com- plaint. Commissioner Ballance denied Commission’s motion. After a hearing, the Industrial Commission January entered an order 14 on reversing 1998 Commissioner Ballance granting and Hearing Commission’s motion appeals. dismiss all claims. Plaintiff [1] Plaintiff’s sole argument on appeal is whether the dismissal by the plaintiff’s Industrial Commission of claims under N.C. Gen. 47 OF APPEALS
IN THE COURT N.C. reversible error. 1A-1, (2), (4), (5) (6) and was 12(b)(1), Rules § Stat. proper. was We conclude that dismissal reversal of that the Industrial Commission’s argues dis order and the Industrial Commission’s Commissioner Ballance’s 1A-1, pursuant to Gen. Rules claims N.C. Stat. missal of supported error not (2), (4), (5) (6) and was reversible 12(b)(1), applicable Specifically, plaintiff argues that he was law or the record. and pursue his Industrial Commission remedies before the entitled against the individual defendants the dismissal of his claims both that (2), 12(b)(1), under Rule Commission only agencies was counter that (4), (5) (6) in error. Defendants Commission Claims Act and the Industrial can be sued under Tort jurisdiction to review the determinations of had no Hearing Commission. Act, jurisdiction is in the Industrial Tort Claims vested
Under the departments, institutions against hear state Commission to claims any per- personal injuries or sustained agencies employee officer, or agent of a state negligence son as a result of employment. v. State Ports scope of his Guthrie acting within the Industrial Authority, S.E.2d 618 alleged wrong: must decide whether any officer, employee, negligence a result of the [A]rose acting within involuntary agent or of the State while servant authority, employment, service, agency scope office, of his pri- Carolina, if State of North circumstances where the under with in accordance person, would be liable to claimant vate . . . laws of North Carolina. Act Tort Claims embraces (a) (1999). The 143-291 Sellars, 273 N.C. v. agencies. Givens only claims state it Claims Act under the Tort (1968). In order recover S.E.2d 530 identify allegedly plaintiff’s affidavit essential upon, N.C. Gen. relied forth the employee and set 100, 153 Highway Commission, 270 N.C. Ayscue (1999); v. 143-297 apply However, Act “does the Tort Claims S.E.2d 823 involuntary servants, agents officers, employees, Walls, Meyer of the State.” *5 dismissed all properly Therefore, the Industrial 12(b)(1) to Rule according defendants against
claims the individual so defendants processed against these Summonses were proper against 12(b)(4) (5) was pursuant to Rules the dismissal liability the well. individual defendants as There is no for individual applies only against officials as the Act Tort Claims the state.
[2] brings
forth claims of false
imprisonment,
intentional
negligent
infliction of emotional
of
distress and
emotional
against
distress
the
Commission. The Tort
give
jurisdiction
Claims Act does not
the Industrial Commission
Department
award
based on intentional acts. Jenkins v.
of
Vehicles,
560,
Injuries
Motor
244 N.C.
Tort agencies attaches to the state and its only under the Tort Claims Act Carolina, “where the State of if North private person, would be liable to the claimant accordance with laws North Carolina.” Gen. 143-291(a). Our Supreme Court has clear incorpo made it that the Tort Act Claims existing rates negligence, common law rules of including public Dept. Labor, 192, doctrine. Hunt N.C. 348 N.C. 499 S.E.2d 747 (1998); Dept. Labor, Stone v. N.C. 495 S.E.2d reh’g denied, cert. U.S. L. 142 Ed. 2d 449 (1998). Stone, In the Court stated: persons possess
Private Only do not govern- duties. possess authority mental entities enact enforce laws for protection public. ... If the State were held liable for performing failing perform an obligation to the large, liability private State would person have when a could not. The doctrine, barring negligence actions against a governmental entity “special relationship” absent a or a “special duty” particular to a individual, legislature’s serves the express permit intention to only the State when a private person Thus, plain could be liable. words of the statute an indicate intent apply to claims brought under the Tort Claims Act. *6 49 App. (1999)] N.C. 43
[135
478-79,
Id. at
Under the
doctrine,
governmental entity
a
exercising
statutory powers
ordinarily
its
is
held to act for the
gen-
benefit of the
eral
rather than
any
for the benefit
individual, and,
there-
fore, cannot be held liable for negligence
performance
of, or failure
perform,
its
Stone,
duties.
347
482,
N.C. at
The Hearing clearly authority had discipline plaintiff. and disbar N.C. Gen. 84-28, Stat. §§ 84-28.1 84-28.1(b) § authorizes the Commission to “hold hearings discipline, incapacity disability matters, to findings make of fact and conclusions of law after such hearings, and necessary to enter carry orders out the duties dele- gated to it the council.” N.C. Gen. Stat. 84-28.1(b) (1995). Moreover, the General Assembly intended to vest Hearing Commission statutory authority with the to enforce its order of disbarment contempt powers comparable to those of general justice. courts of N.C. Gen. provides 84-28.1(bl) disciplinary hearing commission of the North “[t]he Carolina Bar, any State or thereof, committee acting through chairman, its power shall have the persons, to hold corporations in con- firms tempt provided Chapter 5A.” N.C. Gen. Stat. 84-28.1(bl) (emphasis added). Chapter 5A contempt powers outlines the criminal general of the justice. courts of Since the acting Commission was within its in exercising its any powers, performance claim for in the of its duties would come within the doctrine.
There are two recognized exceptions public duty doctrine, to the narrowly both of applied. exceptions which are The (1) exist where special relationship there is a injured party between the state; and the (2) special duty by where the state express creates a virtue of an promise injured individual, to the perform the state fails to promise, promise causally individual’s reliance on the injury Dept. related to the Labor, suffered. Hunt v. 192, 348 N.C. 197, 747, 750; 499 S.E.2d Barker, App. 576, see v. 129 N.C. Stafford 577, 1, 2, S.E.2d disc. review 511 S.E.2d 650 (1998) (quoting Braswell, 410 S.E.2d Braswell (1991)). exception applicable Neither to this case. application
“In order to survive the doctrine, allegations exception must fit within an to the doc OF IN THE COURT
FRAZIEK v. App. 408, 412, Shelby, City Lovelace v. trine.” specifi exception be relationship” must “special that the state merely showing is not created cally alleged, *7 County, 129 v. Polk See Derwort perform certain duties. to undertook whether (1998). To determine App. 789, 793, 501 S.E.2d the consider whether relationship, Court must special the is a there where large, at plaintiff public the duty the or flowed to state’s to of the statute language at the duty statutory, Court looks the the or the duty protect individuals intended to determine whether can be at 750. There 198,499 S.E.2d Hasty, 348 N.C. at public large. at Bar and its duties of the State that the no doubt pro for the matters are intended disciplinary in Hearing Commission Spivey, unworthy practitioners. State public tection of “ duty’ ‘special properly allege the To 195 S.E. protection promise’ of an ‘overt allege must exception, the promise, and a causal rela defendant, reliance on detrimental Lovelace, App. at injury reliance.” and the tion between omitted). (citation 412-13, S.E.2d at true, which, taken as cre- any facts alleged set of Plaintiff has not plaintiff and the relationship special between ate a complaint allege the elements nor does the Hearing Commission duty any special owed plaintiff’s Tort bars Therefore,
Commission. Disciplinary Hearing Commission Act claim Claims properly the claim was distress and of emotional negligent Stone, 1A-1, 12(b)(6). Rule See pursuant § dismissed per- performing failing liable for supra were held (“If the State have liabil- State would large, obligation an to the form ity 143-291(a). not.”'), N.C. Gen. Stat. private person could when a Affirmed. MARTINconcurs.
Judge part dissenting concurring in TIMMONS-GOODSON Judge part. part. part and dissents concurs
Judge Timmons-Goodson against the indi- majority that agree I with the (“DHC”) Disciplinary Hearing Commission vidual defendants imprisonment and inten- false State Bar for of the North Carolina properly dismissed. distress were tional FRAZIER v.
However, agree plaintiffs I do not claim neg- the DHCfor ligent infliction of emotional distress was barred properly doctrine and Therefore, dismissed. I respectfully must dis- portion sent from majority opinion which affirms the Industrial Commission’s dismissal of that claim. majority asserts Assembly that the General intended to vest
the DHC with contempt powers. I disagree and, Judge like McClelland, am any unable to statutory authority detect which would punish by allow the DHC attorney disbarred for the practice unauthorized Therefore, of law. my opinion, the DHC is subject clearly beyond because it acted authority. its
The duties of the delegated DHC are to it the Council of the North Carolina State Bar (“Council”). N.C. Gen. Stat. 84-28.1(b) (1995). The Council is “vested . . . with the to regulate the professional attorneys.” conduct of licensed N.C. Gen. Stat. 84-23 *8 (1995). Therefore, it authority is clear that the of the DHC extends only to attorneys. licensed may The DHC exceed that which has granted been to it power the Council. The of the DHCto persons, “hold corporations firms or in contempt provided as in Chapter 5A” apply non-lawyers. does not N.C.G.S. 28.1(bl). addition,
In principle a well-settled statutory interpretation of particular that a statute general controls over a one. Food Stores v. Board Control, 268 Alcoholic S.E.2d 582
Where one subject statute deals with a in detail with reference to particular a . . . situation and another statute deals with the same subject general comprehensive , particular terms . . . statute will be controlling particular construed as in the situation clearly appears unless it Assembly that the General intended to general make the controlling act in regard thereto. Leeper, App. 199,
State v.
7, 9,
disc. review
STATE be the this section shall brought under actions The venue constituting unau- county acts any in which the superior court alleged to have been practice of law are or unlawful thorized they appear grounds reasonable there or in which committed county in the where the defendants in the will be committed County. in Wake reside or action added). (1995) (emphasis 84~37(c) contempt in plaintiff in holding improperly DHC acted acting Therefore, the DHC was not superior court. forum other than purpose does not duty, and the pursuant to a negligent acts. for its shield it from plaintiffs complaint allegations and averments Taking all the liberally alle- construing those true, and and amended sup- allegations are sufficient averments, I believe the gations Accordingly, distress claim. infliction of emotional port negligent dismissal the Industrial Commission’s I would reverse the DHC distress claim of regards affirm. and in all other v. BARRY DOUGLAS CLAPP NORTH CAROLINA
STATE OF No. COA98-1099 1999) (Filed 21 September impaired driving in limine —habitual motion Evidence— —driv- *9 operation of vehicle ing license while revoked — motion in allowing the State’s trial court did not err of evidence defendant prohibit the introduction limine to opera- operating was not alleged to have been vehicle he was driving while impaired driving and involving habitual ble in a case evidence was sufficient because the State’s license revoked presence police of a operated vehicle in the show defendant officer. concurring the result.
Judge Greene 16 October 1997 Appeal by judgment entered defendant County Superior Court. Llewellyn Hanover D. in New Judge James