defense of sovereign immunity in North Carolina

2018App. 119 , 123–24, 759 S.E.2d 304 , 307–08 (“[T]his Court has consistently held that: (1) the defense of sovereign immunity presents a question of personal, not subject matter, jurisdiction.”); Green v. Kearney, 203 N.C.

2017App. at 123—124, 759 S.E.2d, at 308 (“[T]his Court has consistently held that: (1) the defense of sovereign immunity presents a question of personal, not subject matter, jurisdiction.”); Green v. Kearney, 203 N.C.

2021See Teachy v. Coble Dairies, Inc., 306 N.C. 324, 328 (1982) (stating that “the distinction becomes crucial in North Carolina because” a denial of a Rule 12(b)(2) motion is immediately appealable by statute while a denial of a Rule 12(b)(1) motion is not).

2018Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 327–28, 293 S.E.2d 182, 184 (1982).

2026See Can Am S., LLC v. State, 234 N.C. App. 119, 122 , 759 S.E.2d 304, 307 (2014) (“Had defendants moved to dismiss based on the defense of sovereign immunity pursuant to Rule 12(b)(6), we would be bound by the longstanding rule that the denial of such a motion affects a substantial right and is immediately appealable under [N.C. Gen.

2026See Can Am S., LLC v. State, 234 N.C. App. 119, 122 , 759 S.E.2d 304, 307 (2014) (“Had defendants moved to dismiss based on the defense of sovereign immunity pursuant to Rule 12(b)(6), we would be bound by the longstanding rule that the denial of such a motion affects a substantial right and is immediately appealable under [N.C. Gen.

2021Stat. § 7A- 27(b) (2019). “[T]he denial of a motion to dismiss based upon the defense of sovereign immunity affects a substantial right and is thus immediately appealable.” RPR & Assocs., Inc., 139 N.C. App. at 527 , 534 S.E.2d at 250 (citations omitted). ¶6 In this case, defendant’s motion to dismiss is based in part upon the defense of sovereign immunity.

2021Stat. § 7A- 27(b) (2019). “[T]he denial of a motion to dismiss based upon the defense of sovereign immunity affects a substantial right and is thus immediately appealable.” RPR & Assocs., Inc., 139 N.C. App. at 527 , 534 S.E.2d at 250 (citations omitted). ¶6 In this case, defendant’s motion to dismiss is based in part upon the defense of sovereign immunity.

2021In addition, the State points to the contrast between the language contained in the Charter School Act and that contained in the legislation creating the State Ports Authority, which this Court has determined to be a state agency entitled to assert the defense of sovereign immunity, see Guthrie, 307 N.C. at 528 (1983), with the latter having provided that the State Ports Authority was “created as an instrumentality of the State of North Carolina,” that the Authority was a “division of the Department of Commerce,” and that the Authority provided a means by which “the State of North Carolina may

2021In addition, the State points to the contrast between the language contained in the Charter School Act and that contained in the legislation creating the State Ports Authority, which this Court has determined to be a state agency entitled to assert the defense of sovereign immunity, see Guthrie, 307 N.C. at 528 (1983), with the latter having provided that the State Ports Authority was “created as an instrumentality of the State of North Carolina,” that the Authority was a “division of the Department of Commerce,” and that the Authority provided a means by which “the State of North Carolina may

2009App. at 104 , 545 S.E.2d at 248 , however, this Court rejected Data General’s argument that the County was estopped from asserting the defense of sovereign immunity.

2007App. 97, 100 , 545 S.E.2d 243, 245-46 (2001).] Therefore, our Court held that the denial of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is not immediately appealable, even where the defense of sovereign immunity is raised.

2022The Court of Appeals affirmed, holding that the Retirees “sufficiently alleged a valid contract between them and the State in their complaint to waive the defense of sovereign immunity.” Lake v. State Health Plan for Tchrs. & State Emps., 234 N.C. App. 368, 375 (2014). ¶ 11 On remand, the trial court certified a class composed of: (1) All members (or their Estates or personal representatives if they have deceased since July 1, 2009) of the N.C. Teachers’ and State Employees’ Retirement System (“TSERS”) who retired before January 1, 1988; (2) TSERS members (or their Estates or personal represen

2022The Court of Appeals affirmed, holding that the Retirees “sufficiently alleged a valid contract between them and the State in their complaint to waive the defense of sovereign immunity.” Lake v. State Health Plan for Tchrs. & State Emps., 234 N.C. App. 368, 375 (2014). ¶ 11 On remand, the trial court certified a class composed of: (1) All members (or their Estates or personal representatives if they have deceased since July 1, 2009) of the N.C. Teachers’ and State Employees’ Retirement System (“TSERS”) who retired before January 1, 1988; (2) TSERS members (or their Estates or personal represen

2022Bd. of Educ. v. Cowell, 225 N.C. App. 583, 586 , 739 S.E.2d 566, 568 (2013) (citation, brackets, and quotation marks omitted).

2022Bd. of Educ. v. Cowell, 225 N.C. App. 583, 586 , 739 S.E.2d 566, 568 (2013) (citation, brackets, and quotation marks omitted).

2022A Rule 12(b)(1) motion may not be viewed in the same manner as a Rule 12(b)(6) motion because under Rule 12(b)(1) “matters outside the pleadings[] . . . may be considered and weighed by the court in determining the existence of jurisdiction over the subject matter.” Tart v. Walker, 38 N.C. App. 500, 502 , 248 S.E.2d 736, 737 (1978). ¶ 23 Here, Plaintiffs specifically contend that Defendant waived the defense of sovereign immunity when it entered into a contract with Plaintiffs.

2022A Rule 12(b)(1) motion may not be viewed in the same manner as a Rule 12(b)(6) motion because under Rule 12(b)(1) “matters outside the pleadings[] . . . may be considered and weighed by the court in determining the existence of jurisdiction over the subject matter.” Tart v. Walker, 38 N.C. App. 500, 502 , 248 S.E.2d 736, 737 (1978). ¶ 23 Here, Plaintiffs specifically contend that Defendant waived the defense of sovereign immunity when it entered into a contract with Plaintiffs.

2022“Our Courts generally recognize immunity as a defense that can be raised under Rules 12(b)(1), 12(b)(2), or 12(b)(6).” Suarez v. Am. Ramp Co. (ARC), 266 N.C. App. 604, 610 , 831 S.E.2d 885, 890 (2019).

2022“Our Courts generally recognize immunity as a defense that can be raised under Rules 12(b)(1), 12(b)(2), or 12(b)(6).” Suarez v. Am. Ramp Co. (ARC), 266 N.C. App. 604, 610 , 831 S.E.2d 885, 890 (2019).

2021In support of this assertion, the State directs our attention to Jackson v. Housing Authority of High Point, 316 N.C. 259, 264 (1986), in which we presumed that the General Assembly was aware of the manner in which a “person” was defined in N.C.G.S. § 12-3 at the time that it enacted N.C.G.S. § 28A- 18-2, which creates a statutory cause of action for wrongful death, so that governmental entities such as municipal corporations constituted “persons” and were, for that reason, subject to liability for wrongful death. ¶ 39 In addition, the State contends that, when the False Claims Act is read con

2021In support of this assertion, the State directs our attention to Jackson v. Housing Authority of High Point, 316 N.C. 259, 264 (1986), in which we presumed that the General Assembly was aware of the manner in which a “person” was defined in N.C.G.S. § 12-3 at the time that it enacted N.C.G.S. § 28A- 18-2, which creates a statutory cause of action for wrongful death, so that governmental entities such as municipal corporations constituted “persons” and were, for that reason, subject to liability for wrongful death. ¶ 39 In addition, the State contends that, when the False Claims Act is read con

2021See Cnty. of Durham, 181 N.C. App. at 349 (reasoning that, “[b]ecause the counties derive their sovereign immunity and all other powers and authority from the State . . . the counties’ sovereign immunity cannot be superior to that of the State”). a defense of sovereign immunity.

2021See Cnty. of Durham, 181 N.C. App. at 349 (reasoning that, “[b]ecause the counties derive their sovereign immunity and all other powers and authority from the State . . . the counties’ sovereign immunity cannot be superior to that of the State”). a defense of sovereign immunity.

2021As additional support for this contention, the Academy directs our attention to N.C. Insurance Guaranty Ass’n v. Board of Trustees of Guilford Technical Community College, 364 N.C. 102, 112 (2010), in which this Court held that the General Assembly had clearly waived sovereign immunity by making the Workers’ Compensation Act applicable to claims brought by governmental employees.

2021As additional support for this contention, the Academy directs our attention to N.C. Insurance Guaranty Ass’n v. Board of Trustees of Guilford Technical Community College, 364 N.C. 102, 112 (2010), in which this Court held that the General Assembly had clearly waived sovereign immunity by making the Workers’ Compensation Act applicable to claims brought by governmental employees.

2021Analysis A. Sovereign immunity ¶ 12 When reviewing a trial court’s order granting a motion to dismiss pursuant to Rule 12(b)(1), “we apply de novo review, accepting the allegations in the complaint as true and viewing them in the light most favorable to the non-moving party.” Corwin, 371 N.C. at 611 .1 We review de novo “[q]uestions of law regarding the applicability of sovereign or governmental immunity.” Wray v. City of Greensboro, 370 N.C. 41, 47 (2017) (alteration in original) (quoting Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611 (2016)). ¶ 13 Defendants are not entitled

2021Analysis A. Sovereign immunity ¶ 12 When reviewing a trial court’s order granting a motion to dismiss pursuant to Rule 12(b)(1), “we apply de novo review, accepting the allegations in the complaint as true and viewing them in the light most favorable to the non-moving party.” Corwin, 371 N.C. at 611 .1 We review de novo “[q]uestions of law regarding the applicability of sovereign or governmental immunity.” Wray v. City of Greensboro, 370 N.C. 41, 47 (2017) (alteration in original) (quoting Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611 (2016)). ¶ 13 Defendants are not entitled

2021See Orange Cty. v. Heath, 282 N.C. 292, 296 (1972) (holding that sovereign immunity cannot be “abrogated, abridged, or surrendered, except in deference to plain, positive legislative declarations to that effect”). ¶ 31 The Academy argues that the relevant authorities provide no support for the State’s claim that “lesser sovereigns” are not entitled to assert a defense of sovereign immunity in opposition to claims advanced by the State given that both the State and its agencies enjoy “absolute and unqualified” sovereign immunity, citing Guthrie, 307 N.C. at 534-35.

2021See Orange Cty. v. Heath, 282 N.C. 292, 296 (1972) (holding that sovereign immunity cannot be “abrogated, abridged, or surrendered, except in deference to plain, positive legislative declarations to that effect”). ¶ 31 The Academy argues that the relevant authorities provide no support for the State’s claim that “lesser sovereigns” are not entitled to assert a defense of sovereign immunity in opposition to claims advanced by the State given that both the State and its agencies enjoy “absolute and unqualified” sovereign immunity, citing Guthrie, 307 N.C. at 534-35.

2021In Greene, we decided an interlocutory order granting summary judgment based on the defense of sovereign immunity was properly before us: This Court has held that “when the moving party claims sovereign, absolute or qualified immunity, the denial of a motion for summary judgment is immediately appealable.” Moore v. Evans, 124 N.C. App. 35, 39 , 476 S.E.2d 415, 420 (1996) (citations omitted).

2021In Greene, we decided an interlocutory order granting summary judgment based on the defense of sovereign immunity was properly before us: This Court has held that “when the moving party claims sovereign, absolute or qualified immunity, the denial of a motion for summary judgment is immediately appealable.” Moore v. Evans, 124 N.C. App. 35, 39 , 476 S.E.2d 415, 420 (1996) (citations omitted).

2021See State Highway Comm’n. v. Greensboro City Bd. of Educ., 265 N.C. 35 , 39-40 (1965) (holding that the State Highway Commission, which was a “State agency or instrumentality,” was entitled to use the State’s power of eminent domain to take property belonging to a local school board); see also N.C. DOT v. Cnty. of Durham, 181 N.C. App. 346 , 349 (2007) (reasoning that, “[b]ecause the counties derive their sovereign immunity and all other powers and authority from the State” “the counties’ sovereign immunity cannot be superior to that of the State”).

2021See State Highway Comm’n. v. Greensboro City Bd. of Educ., 265 N.C. 35 , 39-40 (1965) (holding that the State Highway Commission, which was a “State agency or instrumentality,” was entitled to use the State’s power of eminent domain to take property belonging to a local school board); see also N.C. DOT v. Cnty. of Durham, 181 N.C. App. 346 , 349 (2007) (reasoning that, “[b]ecause the counties derive their sovereign immunity and all other powers and authority from the State” “the counties’ sovereign immunity cannot be superior to that of the State”).

2021On 6 December 2018, Defendants filed their answer to Plaintiff’s complaint, generally denying Plaintiff’s claims and asserting several defenses, including the defense of sovereign immunity. ¶6 On 13 May 2019, the Supreme Court of the United States filed its opinion in Franchise Tax Board of California v. Hyatt (“Hyatt III”), holding that “States retain their sovereign immunity from private suits brought in the courts of other States.” ___ U.S. ___, ___, 203 L. Ed. 2d 768, 774 (2019).

2021On 6 December 2018, Defendants filed their answer to Plaintiff’s complaint, generally denying Plaintiff’s claims and asserting several defenses, including the defense of sovereign immunity. ¶6 On 13 May 2019, the Supreme Court of the United States filed its opinion in Franchise Tax Board of California v. Hyatt (“Hyatt III”), holding that “States retain their sovereign immunity from private suits brought in the courts of other States.” ___ U.S. ___, ___, 203 L. Ed. 2d 768, 774 (2019).

2021Analysis A. Sovereign immunity ¶ 12 When reviewing a trial court’s order granting a motion to dismiss pursuant to Rule 12(b)(1), “we apply de novo review, accepting the allegations in the complaint as true and viewing them in the light most favorable to the non-moving party.” Corwin, 371 N.C. at 611 .1 We review de novo “[q]uestions of law regarding the applicability of sovereign or governmental immunity.” Wray v. City of Greensboro, 370 N.C. 41, 47 (2017) (alteration in original) (quoting Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611 (2016)). ¶ 13 Defendants are not entitled

2021Analysis A. Sovereign immunity ¶ 12 When reviewing a trial court’s order granting a motion to dismiss pursuant to Rule 12(b)(1), “we apply de novo review, accepting the allegations in the complaint as true and viewing them in the light most favorable to the non-moving party.” Corwin, 371 N.C. at 611 .1 We review de novo “[q]uestions of law regarding the applicability of sovereign or governmental immunity.” Wray v. City of Greensboro, 370 N.C. 41, 47 (2017) (alteration in original) (quoting Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611 (2016)). ¶ 13 Defendants are not entitled

2017See also Green v. Kearney , 203 N.C.App. 260 , 266, 690 S.E.2d 755 , 761 (2010) ("This Court has held that a denial of a Rule 12(b)(6) motion to dismiss on the basis of sovereign immunity affects a substantial right and is immediately appealable."), aff'd per curiam , 367 N.C. 113 , 748 S.E.2d 143 (2013).

2016See also Green v. Kearney, 203 N.C.App. 260 , 266, 690 S.E.2d 755 , 761 (2010) ("This Court has held that a denial of a Rule 12(b)(6) motion to dismiss on the basis of sovereign immunity affects a substantial right and is immediately appealable."), aff'd per curiam, 367 N.C. 113 , 748 S.E.2d 143 (2013).

2017See also Green v. Kearney , 203 N.C.App. 260 , 266, 690 S.E.2d 755 , 761 (2010) ("This Court has held that a denial of a Rule 12(b)(6) motion to dismiss on the basis of sovereign immunity affects a substantial right and is immediately appealable."), aff'd per curiam , 367 N.C. 113 , 748 S.E.2d 143 (2013).

2016See also Green v. Kearney, 203 N.C.App. 260 , 266, 690 S.E.2d 755 , 761 (2010) ("This Court has held that a denial of a Rule 12(b)(6) motion to dismiss on the basis of sovereign immunity affects a substantial right and is immediately appealable."), aff'd per curiam, 367 N.C. 113 , 748 S.E.2d 143 (2013).

2017See, e.g., Can Am S., LLC v. State , 234 N.C.App. 119 , 123-24, 759 S.E.2d 304 , 308 (2014) ("[B]eginning with Sides v. Hosp. , 22 N.C.App. 117 , 205 S.E.2d 784 (1974), mod. on other grounds , 287 N.C. 14 , 213 S.E.2d 297 (1975), this Court has consistently held that: (1) the defense of sovereign immunity presents a question of personal, not subject matter jurisdiction, and (2) denial of Rule 12(b)(2) motions premised on sovereign immunity are sufficient to trigger immediate appeal under section 1-277(b)."); Data Gen.

2017See, e.g., Can Am S., LLC v. State , 234 N.C.App. 119 , 123-24, 759 S.E.2d 304 , 308 (2014) ("[B]eginning with Sides v. Hosp. , 22 N.C.App. 117 , 205 S.E.2d 784 (1974), mod. on other grounds , 287 N.C. 14 , 213 S.E.2d 297 (1975), this Court has consistently held that: (1) the defense of sovereign immunity presents a question of personal, not subject matter jurisdiction, and (2) denial of Rule 12(b)(2) motions premised on sovereign immunity are sufficient to trigger immediate appeal under section 1-277(b)."); Data Gen.

2017See, e.g., Can Am S., LLC v. State , 234 N.C.App. 119 , 123-24, 759 S.E.2d 304 , 308 (2014) ("[B]eginning with Sides v. Hosp. , 22 N.C.App. 117 , 205 S.E.2d 784 (1974), mod. on other grounds , 287 N.C. 14 , 213 S.E.2d 297 (1975), this Court has consistently held that: (1) the defense of sovereign immunity presents a question of personal, not subject matter jurisdiction, and (2) denial of Rule 12(b)(2) motions premised on sovereign immunity are sufficient to trigger immediate appeal under section 1-277(b)."); Data Gen.

2017See, e.g., Can Am S., LLC v. State , 234 N.C.App. 119 , 123-24, 759 S.E.2d 304 , 308 (2014) ("[B]eginning with Sides v. Hosp. , 22 N.C.App. 117 , 205 S.E.2d 784 (1974), mod. on other grounds , 287 N.C. 14 , 213 S.E.2d 297 (1975), this Court has consistently held that: (1) the defense of sovereign immunity presents a question of personal, not subject matter jurisdiction, and (2) denial of Rule 12(b)(2) motions premised on sovereign immunity are sufficient to trigger immediate appeal under section 1-277(b)."); Data Gen.

2025Similar to a Rule 12(b)(6) dismissal based on sovereign immunity, we have consistently held “denial of a Rule 12(b)(2) motion premised on sovereign immunity constitutes an adverse ruling on personal jurisdiction and is therefore immediately appealable under section 1-277(b).” Green v. Howell, 274 N.C. App. 158 , 164, 851 -6- S.E.2d 673, 678 (2020) (citation and internal marks omitted); see also Torres v. City of Raleigh, 288 N.C. App. 617 , 620, 887 S.E.2d 429 , 433 (2023) (“This Court has consistently stated that a denial of governmental immunity should be classified as an issue of personal j

2024However, the “ ‘denial of a Rule 12(b)(2) motion premised on sovereign immunity constitutes an adverse ruling on personal jurisdiction and is therefore immediately appealable under section 1-277(b),’ ” while “the denial of a 12(b)(6) motion based on the defense of sovereign immunity affects a substantial right and is immediately appealable under section 1-277(a).” Green, 274 N.C. App. at 164, 851 S.E.2d at 668 (quoting Can Am South, LLC, 234 N.C. App. at 124 , 759 S.E.2d at 308 ) (other citations omitted).

2014It is well established that -7- "'[t]he denial of a motion to dismiss based upon the defense of sovereign immunity affects a substantial right and is thus immediately appealable.'" Carl v. State, 192 N.C.

2013This Court has consistently held that “ ‘[t]he denial of a motion to dismiss based upon the defense of sovereign immunity affects a substantial right and is thus immediately appealable.’ ” Carl, 192 N.C.