Fore v. W. N.C. Conference of the United Methodist Church

875 S.E.2d 32

Lisa Biggs FORE, Plaintiff,

v.The WESTERN NORTH CAROLINA CONFERENCE OF the UNITED METHODIST CHURCH (a/k/a Western North Carolina Conference); and The Children's Home, Incorporated (a/k/a The Children's Home, a/k/a The Crossnore School & Children's Home, a/k/a Crossnore Children's Home), Defendants.

No. COA21-546

Court of Appeals of North Carolina.

Filed June 21, 2022

Janet Janet & Suggs, LLC, by Richard Serbin and Matthew White, Winston Salem, for plaintiff-appellee.

Ogletree Deakins, by Kelly S. Hughes, Charlotte, and Ashley P. Cuttino, admitted pro hac vice, for defendant-appellant The Western North Carolina Conference of the United Methodist Church (a/k/a Western North Carolina Conference).

Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidus, G. Gray Wilson, Winston-Salem, and D. Martin Warf, Raleigh, for defendant-appellant The Children's Home, Incorporated (a/k/a The Children's Home, a/k/a The Crossnore School & Children's Home, a/k/a Crossnore Children's Home).

TYSON, Judge.

¶ 1 The Western North Carolina Conference of the United Methodist Church ("WNCCUMC") and The Crossnore School & Children's Home ("Children's Home") (together "Defendants") purport to appeal a trial court's ex parte order directing disclosure of non-joined, third-party records of alleged child sexual abuse. We dismiss this interlocutory appeal without prejudice.

I. Background

¶ 2 Plaintiff asserts she was sexually abused as a minor, while she resided at The Children's Home in Winston-Salem during the 1970s. Plaintiff claims she reported the alleged abuse by her former Children's Home employee-parents to officials in Rockingham County. Plaintiff filed a civil action in Mecklenburg County Superior Court against Defendants on 6 January 2021. Plaintiff claims Defendants negligently supervised the staff and breached fiduciary duties they owed to her.

¶ 3 Defendants filed motions to dismiss Plaintiff's complaint under Rule 12(b)(6), contending 2019 N.C. Sess. Laws 5 § 4.2(b) and N.C. Gen. Stat. § 1-56(b) (2021) are unconstitutional as-applied to them under Article I, Section 19 of the North Carolina Constitution. WNCCUMC moved to dismiss Plaintiff's claims pursuant to Rule 12(b)(1). These motions remain pending before the trial court.

¶ 4 On 3 June 2021, Plaintiff filed a motion for production of criminal investigation records pursuant to N.C. Gen. Stat. § 132-1.4 (2021). Plaintiff's motion sought confidential records of alleged child sexual abuse by any Children's Home employee against any minor residing therein from the surrounding counties’ sheriff's offices, Departments of Social Services, and police departments.

¶ 5 Plaintiff prepared a proposed order and submitted it along with her motion, which was mailed to the Mecklenburg County Clerk's Office for filing. Plaintiff did not file nor serve a notice of hearing on her motion for production of records on Defendants. On 11 June 2021, the trial court entered Plaintiff's proposed order, ex parte. The order decreed the various agencies and departments:

shall produce any and all information in whatever form it exists in connection with the alleged child sexual abuse committed by [employee parents] or other employees of the Children's Home alleged to have sexually abused and/or engaged in sexual activities with a minor while a resident of the home. (emphasis supplied).

¶ 6 Defendants filed notice of appeal, separately sought and obtained a temporary stay, and petitioned for and obtained a writ of supersedeas.

II. Jurisdiction

¶ 7 Defendants’ appeal is clearly interlocutory. Appellate review is proper pursuant to N.C. Gen. Stat. § 7A-27(b)(3) if the party proves one of the requirements therein.

¶ 8 "An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy." Flitt v. Flitt , 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (citation omitted). Defendant is entitled to review "where ‘the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review.’ " Id. (citation omitted).

III. Argument

¶ 9 Defendants argue their substantial rights are violated because they were not given prior notice and an opportunity to oppose Plaintiff's motion for the production of alleged child sexual abuse records of non-joined third parties from surrounding county public entities. For nearly seventy years, the courts of this state have held:

The notice required by these constitutional provisions in such proceedings is the notice inherent in the original process whereby the court acquires original jurisdiction, and not notice of the time when the jurisdiction vested in the court by the service of the original process will be exercised ... After the court has once obtained jurisdiction in a cause through the service of original process, a party has no constitutional right to demand notice of further proceedings in the cause.

Collins v. Highway Commission, 237 N.C. 277, 281, 74 S.E.2d 709, 713 (1953) (emphasis supplied).

¶ 10 Defendants cite Mission Hosps., Inc. v. N.C. Dep't of Health & Hum. Servs. , 189 N.C. App. 263, 270, 658 S.E.2d 277, 281 (2008), and Pask v. Corbitt , 28 N.C. App. 100, 104, 220 S.E.2d 378, 382 (1975), to support their contention they were entitled to prior notice of the hearing. Defendants’ reliance on these cases is misplaced.

¶ 11 Mission Hospital was a DHHS agency appeal, in which the party had directly violated North Carolina statutes forbidding a "member or employee of the agency making a final decision in the case [from] communicat[ing], directly or indirectly , in connection with any issue of fact, or question of law, with any person or party or his representative, except on notice and opportunity for all parties to participate. " Mission Hosps., Inc. , 189 N.C. App. at 270, 658 S.E.2d at 281 (emphasis supplied) (citation omitted).

¶ 12 In Pask , the plaintiff filed a motion to add parties to the action pursuant to Rule 21 of our Rules of Civil Procedure, and this Court noted, "[l]ong prior to the adoption of G.S. 1A-1, Rule 21, North Carolina has held that existing parties to a lawsuit are entitled to notice of a motion to bring in additional parties." Pask , 28 N.C. App. at 103, 220 S.E.2d at 381. The facts and issues in Mission Hospital and Pask are wholly inapposite from those before us and do not show a substantial right to immediate review.

¶ 13 Here, both Defendants have been haled into court by five different plaintiffs under recent legislation titled SAFE Child Act, 2019 N.C. Sess. Laws 5 § 4.2(b). This statute revived previously time-barred claims for child sexual abuse for a period of two years. Id. The plaintiffs in the first two cases filed and served written discovery requests on Defendants. Defendants failed to produce any responses to discovery to date, instead delaying with objections to each request and a reference to pending motions for a protective order which they have not noticed for hearing.

¶ 14 Before Plaintiff could serve any written discovery requests, Defendants filed a motion to stay discovery pending the outcome of their motions to dismiss. Plaintiff was left with the choice to proceed without discovery or to file the contested motion seeking alternative means of locating evidence to support her claims.

¶ 15 Unlike the requirements in Mission Hospital and Pask , no statute or constitutional provision under these facts requires Plaintiff to provide prior notice to Defendants for a hearing seeking criminal records of non-joined third parties from public entities, and which may affect Defendants’ prior employees, who are not joined as parties herein. Further, Defendants were aware through prior discovery requests of Plaintiff's demand and intent to obtain the evidence. No formal notice was needed, because the order to produce was related and made to, and was obtained from, non-joined third parties.

¶ 16 Defendants’ arguments are without merit asserting prior notice of a records request to public entities concerning non-joined third parties as a substantial right to an immediate appeal. As further discussed below, Defendants have shown no "substantial right which would be lost absent immediate review." Flitt , 149 N.C. App. at 477, 561 S.E.2d at 513 (citations and internal quotation marks omitted).

IV. Jus Tertii

¶ 17 Purported claims or rights of a third party cannot be asserted as a defense by an unrelated litigant. "In general, jus tertii cannot be set up as a defense by the defendant, unless he can in some way connect himself with the third party." Comm. to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 592, 2021-NCSC-6, ¶ 60, 853 S.E.2d 698, 723 (2021) (quoting Holmes v. Godwin , 69 N.C. 467, 470 (1873) ).

¶ 18 Jus Tertii is a principle of law prohibiting a party from raising the claims or rights of third parties. Id. (citation omitted). Jus Tertii is defined as: "The right of a third party. The doctrine that [...] courts do not decide what they do not need to decide." Jus Tertii, Black's Law Dictionary (11th ed. 2019). "A jus tertii situation arises when the defendant has no defense of his own but wishes to defeat the plaintiff's action by alleging a defect in the plaintiff's title or the fact that the plaintiff has no title at all." Jus Tertii Under Common Law and the N.I.L. , 26 St. John's L. Rev. 135, 135 (1951).

¶ 19 The Idaho Supreme Court provides persuasive guidance in an illustrative case of mistaken assertion by a defendant of rights owned by a non-joined third party. Gissel v. State , 111 Idaho 725, 727 P.2d 1153, 1154 (1986). Gissel had unlawfully harvested wild rice growing on lands jointly owned by the State of Idaho and the United States National Forest Service. Id. Gissel was convicted in state court of trespass. Id. Idaho officials seized and sold the harvested rice. Id. Because the State of Idaho...