# Farmer v. Troy Univ.

> Court of Appeals of North Carolina · March 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10486290

## Case

- **Court:** Court of Appeals of North Carolina
- **Decided:** March 2, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-36

No. COA19-1015

Filed 2 March 2021

Cumberland County, No. 18 CVS 5146

SHARELL FARMER, Plaintiff,

v.

TROY UNIVERSITY, PAMELA GAINEY, AND KAREN TILLERY, Defendants.

Appeal by plaintiff from order entered 1 July 2019 by Judge Andrew T. Heath

in Cumberland County Superior Court. Heard in the Court of Appeals 20 October

2020.

Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and
Harold L. Kennedy, III, for plaintiff-appellant.

Ford & Harrison LLP, by Julie K. Adams, and Wesley C. Redmond, pro hac
vice, for defendants-appellees.

ZACHARY, Judge.

¶1 Plaintiff Sharell Farmer appeals from an order granting Defendants’ motion

to dismiss pursuant to Rules 12(b)(2) and (6) of the North Carolina Rules of Civil

Procedure, on the grounds of interstate sovereign immunity. After careful review, we

affirm the trial court’s order.

Background

¶2 From May 2014 until 9 September 2015, Plaintiff was employed as a college
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recruiter for Defendant Troy University. Troy University is a public university,

incorporated and primarily located in the State of Alabama. However, Troy

University has a recruiting office in Fayetteville, North Carolina, out of which

Plaintiff was based, and where Plaintiff worked with Defendants Pamela Gainey and

Karen Tillery (the “individual Defendants”).

¶3 Plaintiff alleges that, while he was employed by Troy University, the

individual Defendants committed several acts of “sexual harassment and fraudulent

conduct” against him, and that such conduct began “his first day on the job” and

continued “throughout his employment,” with the individual Defendants making

“frequent sexually suggestive remarks to” him. Plaintiff reported the individual

Defendants’ actions to “the appropriate officials” at Troy University, but following his

complaint, Defendant Gainey “immediately retaliated” and suspended him from work

for two days for poor performance. On 9 September 2015, Defendant Gainey

terminated Plaintiff’s employment with Troy University.

¶4 On 24 July 2018, Plaintiff filed suit against Troy University and the individual

Defendants. Plaintiff asserted claims against Troy University for (1) wrongful

discharge from employment, in violation of public policy; and (2) negligent retention

and/or supervision of an employee. Plaintiff asserted claims against all Defendants

for (1) intentional infliction of mental and emotional distress; and (2) tortious

interference with contractual rights. In the event that the trial court determined that
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his claims were barred by the doctrine of sovereign immunity, Plaintiff also asserted

an alternative claim against all Defendants, alleging a violation of his rights under

the North Carolina Constitution.

¶5 On 3 October 2018, Defendants filed a motion to dismiss pursuant to Rule

12(b)(6) for failure to state a claim, which the trial court denied by order entered on

9 November 2018. On 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). On 15 May 2019, citing Hyatt III,

Defendants filed another motion to dismiss on the grounds of interstate sovereign

immunity, pursuant to Rules 12(b)(2) (lack of personal jurisdiction) and (6) (failure to

state a claim). In the alternative, Defendants moved for judgment on the pleadings,

pursuant to Rule 12(c). On 24 May 2019, Defendants filed an amended motion to

dismiss, or in the alternative, for judgment on the pleadings. On 3 June 2019,

Plaintiff filed his response.

¶7 On 1 July 2019, the trial court entered its order granting Defendants’ motion

to dismiss pursuant to Rules 12(b)(2) and (6), citing Hyatt III in support of its ruling.
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Plaintiff timely filed his notice of appeal.

Discussion

¶8 Plaintiff asserts that the trial court erred in granting Defendants’ motion to

dismiss. Specifically, Plaintiff argues that (1) the doctrine of interstate sovereign

immunity does not apply in this case; (2) Defendants waived sovereign immunity

when Troy University registered in North Carolina as a nonprofit corporation; (3)

Hyatt III must be construed prospectively, not retroactively; (4) Plaintiff’s claim

under the North Carolina Constitution survives, regardless of whether Defendants’

sovereign immunity defense succeeds; and (5) the trial court committed reversible

error in dismissing the individual Defendants from the lawsuit. After careful review,

we affirm the trial court’s order.

I. Standard of Review

¶9 When a trial court grants a motion to dismiss for lack of personal jurisdiction

under Rule 12(b)(2), we must review the record to determine whether there is

evidence that would support the trial court’s determination that exercising its

jurisdiction would be inappropriate. See Martinez v. Univ. of N.C., 223 N.C. App. 428,

430, 741 S.E.2d 330, 332 (2012).

¶ 10 On appeal from a trial court’s order on a motion to dismiss for failure to state

a claim pursuant to Rule 12(b)(6), this Court conducts de novo review to determine

“whether, as a matter of law, the allegations of the complaint . . . are sufficient to
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state a claim upon which relief may be granted.” Green v. Kearney, 203 N.C. App. 260,

266, 690 S.E.2d 755, 761 (2010) (citation and internal quotation marks omitted).

II. Sovereign Immunity

¶ 11 Plaintiff first argues that Defendants cannot avail themselves of the doctrine

of interstate sovereign immunity, in that the Supreme Court’s holding in Hyatt III is

inapplicable to the present case. We begin with a brief overview of Hyatt III.

A. Hyatt III

¶ 12 Hyatt claimed to have moved from California to Nevada, a state that “collects

no personal income tax,” after obtaining a patent that Hyatt anticipated would yield

him millions of dollars in royalties. Hyatt III, ___ U.S. at ___, 203 L. Ed. 2d at 772.

However, the “Franchise Tax Board of California (Board), the state agency

responsible for assessing personal income tax, suspected that Hyatt’s move was a

sham,” and it accused Hyatt of misrepresenting his residency in order to avoid paying

income taxes in California. Id. The Board audited Hyatt, who later “sued the Board

in Nevada state court for torts he alleged the agency committed during the audit.” Id.

at ___, 203 L. Ed. 2d at 773. The Board invoked the State of California’s sovereign

immunity as a defense. Id.

¶ 13 Applying Nevada immunity law, “[t]he Nevada Supreme Court rejected [the

Board’s sovereign immunity] argument and held that, under general principles of

comity, the Board was entitled to the same immunity that Nevada law afforded
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Nevada agencies[.]” Id. And pursuant to then-existing Supreme Court precedent,

“each State [was permitted] to decide whether to grant or deny its sister States

sovereign immunity” as a matter of comity. Id. at ___, 203 L. Ed. 2d at 783 (Breyer,

J., dissenting) (citing Nevada v. Hall, 440 U.S. 410, 59 L. Ed. 2d 416 (1979)).

¶ 14 In Hyatt III, however, the United States Supreme Court explicitly overruled

Hall, holding that “States retain their sovereign immunity from private suits brought

in the courts of other States.” Id. at ___, 203 L. Ed. 2d at 774 (majority opinion). “The

Constitution does not merely allow States to afford each other immunity as a matter

of comity; it embeds interstate sovereign immunity within the constitutional design.”

Id. at ___, 203 L. Ed. 2d at 780.

B. Application

¶ 15 Plaintiff first attempts to distinguish the facts of the instant case from the facts

of Hyatt III, in the hopes of defeating the application of interstate sovereign

immunity. Plaintiff argues that in Hyatt III, “the legal dispute had its genesis in the

State of California. The state taxes owed to California were based on business

activities that occurred within the [S]tate of California. The [S]tate of California was

involved solely in governmental activity, i.e., collecting state taxes.” By contrast,

Plaintiff asserts that here, “all the tortious conduct occurred within the sovereign

boundaries of North Carolina. The individual tort feasors [sic] were residents in

North Carolina.” This argument is without merit.
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¶ 16 It is evident that for purposes of interstate sovereign immunity, the state in

which the allegedly tortious conduct was committed is not a distinguishing fact of any

relevance; the dispositive issue is whether one state has been “haled involuntarily”

into the courts of another state. Id. at ___, 203 L. Ed. 2d at 776. The approach to

interstate sovereign immunity laid out in Hyatt III is “absolute.” Id. at ___, 203 L. Ed.

2d at 783 (Breyer, J., dissenting). Regardless, in both the present case and in Hyatt

III, the tortious conduct occurred in the state in which the plaintiff filed suit. Here,

Plaintiff alleges that he was injured by Defendants in North Carolina, where he filed

suit; in Hyatt III, “[t]he Franchise Tax Board sent its California employees into the

state of Nevada[,]” where the employees allegedly committed the torts for which

Hyatt sought compensation in the Nevada courts. Id. at ___, 203 L. Ed. 2d at 772–73

(majority opinion). Thus, Plaintiff’s first argument is inapt.

¶ 17 Plaintiff further contends that allowing the doctrine of sovereign immunity to

bar his suit against Defendants erroneously extends the scope of the Alabama

Constitution to embrace illegal conduct by North Carolina residents in North

Carolina, rather than properly limiting the Alabama Constitution’s application to

“conduct within the sovereign boundaries of Alabama.” Plaintiff then proclaims that

[t]he sovereignty of North Carolina controls conduct within
this state. . . . The sovereignty of North Carolina is
sacrosanct. It is absolute. For this Court to apply Alabama
sovereign immunity under Article I, § 14 of the Alabama
Constitution to conduct which occurred exclusively within
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the sovereign boundaries of North Carolina would
constitute an intrusion on the sovereignty of this State.

¶ 18 However, the United States Supreme Court succinctly foreclosed this

argument in Hyatt III:

The problem with [Plaintiff’s] argument is that the
Constitution affirmatively altered the relationships
between the States, so that they no longer relate to each
other solely as foreign sovereigns. Each State’s equal
dignity and sovereignty under the Constitution implies
certain constitutional limitations on the sovereignty of all
of its sister States. One such limitation is the inability of
one State to hale another into its courts without the latter’s
consent.

Id. at ___, 203 L. Ed. 2d at 779–80 (citation and internal quotation marks omitted).

Under Hyatt III, it is clear that the “intrusion”—if any—upon the sovereignty of

North Carolina occurred upon the ratification of the United States Constitution, and

not upon the trial court’s dismissal of Plaintiff’s claims on the grounds of interstate

sovereign immunity.

¶ 19 Plaintiff next argues that the doctrine of interstate sovereign immunity does

not apply in this instance because Troy University was not exercising a governmental

function, but rather “came into North Carolina and leased office space in Fayetteville

for a business and commercial venture.” (Emphasis added). This argument is

similarly unavailing.

¶ 20 To begin, Alabama courts consider the State’s universities, including Troy
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University, to be arms of the State of Alabama entitled to the sovereign immunity

enjoyed by the State. See, e.g., Ex parte Troy Univ., 961 So. 2d 105, 109–10 (Ala. 2006);

Stark v. Troy State Univ., 514 So. 2d 46, 50 (Ala. 1987). Like North Carolina, Alabama

does not recognize a “business and commercial ventures” exception to its sovereign

immunity. Ex parte Troy Univ., 961 So. 2d at 109–10.

¶ 21 In addition, although the Hyatt III Court did not address the governmental

and proprietary function distinction, the United States Supreme Court has previously

made clear that a state’s waiver of its sovereign immunity must be explicit; as will be

more thoroughly explained below, states cannot implicitly waive sovereign immunity.

See Sossamon v. Texas, 563 U.S. 277, 284, 179 L. Ed. 2d 700, 709 (2011); Coll. Sav.

Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682, 144 L. Ed.

2d 605, 620 (1999).

¶ 22 Finally, we note that in advancing this argument, Plaintiff conflates our

jurisprudence regarding the doctrines of sovereign immunity and governmental

immunity.

Under the doctrine of sovereign immunity, the State is
immune from suit absent waiver of immunity. Under the
doctrine of governmental immunity, a county is immune
from suit for the negligence of its employees in the exercise
of governmental functions absent waiver of immunity.
These immunities do not apply uniformly. The State’s
sovereign immunity applies to both its governmental and
proprietary functions, while the more limited governmental
immunity covers only the acts of a municipality or a
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municipal corporation committed pursuant to its
governmental functions.

Evans v. Hous. Auth., 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004) (emphasis added)

(citation and internal quotation marks omitted).

¶ 23 As an arm of the State of Alabama,1 Troy University is immune from suit under

the doctrine of sovereign immunity, not governmental immunity. This immunity

applies to both its proprietary and governmental functions, see id., unless that

immunity is explicitly waived, see Sossamon, 563 U.S. at 284, 179 L. Ed. 2d at 709.

¶ 24 Accordingly, Plaintiff’s argument that interstate sovereign immunity does not

apply in this case lacks merit. Having so concluded, we address Plaintiff’s argument

that Troy University waived sovereign immunity.

III. Waiver of Sovereign Immunity

¶ 25 Plaintiff next argues that the trial court erred in granting Defendants’ motion

to dismiss because Troy University waived its sovereign immunity by registering with

the North Carolina Secretary of State as a nonprofit corporation, thus enabling it to

sue and be sued in its corporate name. We disagree.

¶ 26 As an Alabama nonprofit corporation, Troy University applied for and received

a certificate of authority to conduct its affairs in North Carolina as a foreign nonprofit

corporation, pursuant to Article 15 of the Nonprofit Corporation Act. See N.C. Gen.

1 See Ala. Code § 16-56-1 (2018).
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Stat. § 55A-15-03 (2019). The Nonprofit Corporation Act states, in pertinent part:

(a) Unless its articles of incorporation or this Chapter
provides otherwise, every corporation has perpetual
duration and succession in its corporate name and has
the same powers as an individual to do all things
necessary or convenient to carry out its affairs,
including without limitation, power:

(1) To sue and be sued, complain and defend in its
corporate name[.]

Id. § 55A-3-02(a)(1) (emphasis added).2

¶ 27 The United States Supreme Court has held that a state’s waiver of its

sovereign immunity cannot be implied; it must be explicitly expressed. Sossamon,

563 U.S. at 284, 179 L. Ed. 2d at 708–09. “Courts indulge every reasonable

presumption against waiver of fundamental constitutional rights.” Coll. Sav. Bank,

527 U.S. at 682, 144 L. Ed. 2d at 620 (citation and internal quotation marks omitted).

¶ 28 The Hyatt III Court held that one state may not be “haled involuntarily” into

the courts of a sister state without its consent. See ___ U.S. at ___, 203 L. Ed. 2d at

2 Article 15 of the Nonprofit Corporation Act further states:

Except as otherwise provided by this Chapter, a foreign
corporation with a valid certificate of authority has the same but
no greater rights and has the same but no greater privileges as,
and is subject to the same duties, restrictions, penalties, and
liabilities now or later imposed on, a domestic corporation of like
character.

N.C. Gen. Stat. § 55A-15-05(b).
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780. Here, Alabama has explicitly not consented to be sued:

The wall of immunity erected by [Ala. Const. 1901] § 14 is
nearly impregnable. This immunity may not be waived.
This means not only that the state itself may not be sued,
but that this cannot be indirectly accomplished by suing its
officers or agents in their official capacity, when a result
favorable to plaintiff would be directly to affect the
financial status of the state treasury.

Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002) (citations omitted).

¶ 29 Our Supreme Court has similarly held that “[w]aiver of sovereign immunity

may not be lightly inferred and State statutes waiving this immunity, being in

derogation of the sovereign right to immunity, must be strictly construed.” Guthrie v.

N.C. State Ports Auth., 307 N.C. 522, 537–38, 299 S.E.2d 618, 627 (1983). “Statutory

authority to ‘sue or be sued’ is not always construed as an express waiver of sovereign

immunity and is not dispositive of the immunity defense when suit is brought against

an agency of the State.” Id. at 538, 299 S.E.2d at 627.

¶ 30 In Guthrie, our Supreme Court determined that an enabling statute that “vests

the Ports Authority with the authority to ‘sue or be sued,’ ” when read together with

the provisions of the State Torts Claims Act, N.C. Gen. Stat. § 143-291 et seq., did not

constitute “consent for the Ports Authority to be sued in the courts of the State[,]”

Guthrie, 307 N.C. at 538, 299 S.E.2d at 627. Rather, the Court concluded that the

statutes evince “a legislative intent that the Authority be authorized to sue as [a]

plaintiff in its own name in the courts of the State but contemplates that all tort
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claims against the Authority for money damages will be pursued under the State Tort

Claims Act.” Id.

¶ 31 Plaintiff’s argument in the case at bar is no more successful than that

considered and rejected by our Supreme Court in Guthrie. Assertions of statutory

waivers of state sovereign immunity are subject to strict construction. Id. at 537–38,

299 S.E.2d at 627. Unlike Guthrie, which concerned a suit against an agency of the

State of North Carolina upon which the enabling legislation explicitly bestowed the

authority to “sue or be sued,” id., Plaintiff here has not shown any similarly explicit

waiver of state sovereign immunity, either in the Alabama statutes authorizing Troy

University’s activities or in our General Statutes.

¶ 32 In that interstate sovereign immunity is a fundamental right “embed[ded] . . .

within the constitutional design,” Hyatt III, ___ U.S. at ___, 203 L. Ed. 2d at 780, we

must “indulge every reasonable presumption against [its] waiver,” Coll. Sav. Bank,

527 U.S. at 682, 144 L. Ed. 2d at 620. Accordingly, we will not read into the Nonprofit

Corporation Act a blanket waiver of interstate sovereign immunity for an arm of

another state that registers as a nonprofit corporation in the State of North Carolina,

absent clear and express statutory authority to do so.

¶ 33 Troy University has not waived its interstate sovereign immunity by

registering with the North Carolina Secretary of State as a nonprofit corporation. We

therefore proceed to Plaintiff’s next issue presented: whether the Supreme Court’s
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decision in Hyatt III may be applied retroactively.

IV. Retroactive Application of Hyatt III

¶ 34 Plaintiff next asserts that Hyatt III “must be construed prospectively such that

it only applies to causes of action that accrue after May 13, 2019, the date of the

Supreme Court Opinion,” and consequently, the decision cannot affect his case,

because his “legal rights vested on September 9, 2015,” the date Defendant Gainey

terminated Plaintiff’s employment with Troy University. We disagree.

¶ 35 To support this contention, Plaintiff cites the landmark case of Smith v. State,

in which our Supreme Court held that when the State enters into a valid contract, it

implicitly waives its sovereign immunity with regard to claims for breach of that

contract. 289 N.C. 303, 320, 222 S.E.2d 412, 424 (1976). In Smith, the Court also

denied retroactive application of its holding, stating that “in this case, and in causes

of action on contract arising after the filing date of this opinion, . . . the doctrine of

sovereign immunity will not be a defense to the State.” Id.

¶ 36 Our Supreme Court’s decision in Smith is clearly distinguishable from Hyatt

III and the case before us. Smith addressed the sovereign immunity of the State of

North Carolina, in its own courts, from suits arising out of contracts into which the

State entered voluntarily. See id. at 309–11, 222 S.E.2d at 417–18. Interpreting such

questions of intrastate sovereign immunity is a matter of state law. See id. at 313–

20, 222 S.E.2d at 419–23.
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¶ 37 Conversely, Hyatt III concerns the federal constitutional implications of

interstate sovereign immunity, in which one state is haled into the courts of another

state without its consent. ___ U.S. at ___, 203 L. Ed. 2d at 774. As the Supreme Court

explained, “although the [federal] Constitution assumes that the States retain their

sovereign immunity except as otherwise provided, it also fundamentally adjusts the

States’ relationship with each other and curtails their ability, as sovereigns, to decline

to recognize each other’s immunity.” Id. at ___, 203 L. Ed. 2d at 775. Stated another

way, “[i]nterstate immunity . . . is implied as an essential component of federalism.”

Id. at ___, 203 L. Ed. 2d at 781 (citation and internal quotation marks omitted).

Accordingly, in that Smith addressed intrastate sovereign immunity—a matter of

state law—and not interstate sovereign immunity with its attendant federal

constitutional concerns, Smith is not persuasive on the issue of whether Hyatt III

applies retroactively, or merely prospectively, as Plaintiff contends.

¶ 38 Furthermore, Smith stands as a clear exception to our appellate courts’

traditional adherence to the “Blackstonian Doctrine”:

Under a long-established North Carolina law, a decision of
a court of supreme jurisdiction overruling a former decision
is, as a general rule, retrospective in its operation. This
rule is based on the so-called “Blackstonian Doctrine” of
judicial decision-making: courts merely discover and
announce law; they do not create it; and the act of
overruling is a confession that the prior ruling was
erroneous and was never the law.
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Cox v. Haworth, 304 N.C. 571, 573, 284 S.E.2d 322, 324 (1981) (citations omitted).

The presumption of retrospectivity “is one of judicial policy, and should be determined

by a consideration of such factors as reliance on the prior decision, the degree to which

the purpose behind the new decision can be achieved solely through prospective

application, and the effect of retroactive application on the administration of justice.”

Id.

¶ 39 Hyatt III appears to portend its own retroactive application. In considering the

effect of overruling Nevada v. Hall, the Supreme Court “acknowledge[d] that some

plaintiffs, such as Hyatt,” had demonstrated reliance upon Hall “by suing sovereign

States.” Hyatt III, ___ U.S. at ___, 203 L. Ed. 2d at 782. Yet, despite this recognition,

the Court noted the unfortunate reality that “in virtually every case that overrules a

controlling precedent, the party relying on that precedent will incur the loss of

litigation expenses and a favorable decision below.” Id. “Those case-specific costs are

not among the reliance interests that would persuade . . . an incorrect resolution of

an important constitutional question.” Id.

¶ 40 Moreover, the Court was quite clear that its prior holding in Hall was

“irreconcilable with our constitutional structure and with the historical evidence

showing a widespread preratification understanding that States retained immunity

from private suits, both in their own courts and in other courts.” Id.

¶ 41 After careful consideration of the Supreme Court’s opinion in Hyatt III, and in
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light of our courts’ presumption that the decision of a higher court generally operates

retroactively, Cox, 304 N.C. at 573, 284 S.E.2d at 324, we conclude that retroactive

application of Hyatt III is required to achieve the purpose of the Court’s holding. In

so concluding, this Court simply recognizes the interstate sovereign immunity—an

implicit and “essential component of federalism[,]” Hyatt III, ___ U.S. at ___, 203 L.

Ed. 2d at 781—which the State of Alabama never waived.

¶ 42 We find additional support for our conclusion in the opinions of other states

that have already decided this issue. “In the absence of persuasive and binding North

Carolina cases, we examine the law of other states.” Russell v. Donaldson, 222 N.C.

App. 702, 706, 731 S.E.2d 535, 538 (2012).

¶ 43 Several other states have applied Hyatt III retroactively. The Supreme Court

of Kentucky applied Hyatt III retroactively, reversing the denial of the State of Ohio’s

motion to dismiss claims against it in a lawsuit filed in Kentucky before Hyatt III was

decided. Ohio v. Great Lakes Minerals, LLC, 597 S.W.3d 169, 171–73 (Ky. 2019), cert.

denied, ___ U.S. ___, 208 L. Ed. 2d 87 (2020). The Appellate Court of Connecticut

similarly applied Hyatt III retroactively, affirming the dismissal of a suit filed in 2018

by one of its citizens against the State of Rhode Island, one of its agencies, and several

of its agents. Reale v. State, 218 A.3d 723, 726–27 (Conn. App. Ct. 2019). And the

Supreme Court of New York, Appellate Division, applied Hyatt III retroactively in

affirming a New York trial court’s pre-Hyatt III grants of motions to dismiss made by
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an agency of the State of Arizona and one of its employees. Trepel v. Hodgins, 121

N.Y.S.3d 605, 606 (N.Y. App. Div. 2020).

¶ 44 Recognizing that “sovereign immunity is a jurisdictional issue[,]” M Series

Rebuild, LLC v. Town of Mount Pleasant, N.C., 222 N.C. App. 59, 62, 730 S.E.2d 254,

257, disc. review denied, 366 N.C. 413, 735 S.E.2d 190 (2012), and consonant with

Hyatt III’s analysis of interstate sovereign immunity as a “fundamental aspect” of

each state’s sovereignty, ___ U.S. at ___, 203 L. Ed. 2d at 775, as well as our courts’

presumption of retrospectivity, see Cox, 304 N.C. at 573, 284 S.E.2d at 324, we

conclude that Hyatt III is appropriately applied retroactively, and that Plaintiff’s

argument to the contrary must fail.

V. North Carolina Constitutional Claim

¶ 45 Plaintiff also contends that the trial court erred in granting Defendants’

motion to dismiss his claim under Article 1, Section 19 of the North Carolina

Constitution alleging “a violation of equal protection of the law,” which he asserted

in the event that the trial court determined that his other claims were barred by

sovereign immunity. Citing our Supreme Court’s decision in Corum v. Univ. of N.C.,

330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992),

Plaintiff maintains that his “alternative state constitutional claim . . . trump[s] the

doctrine of sovereign immunity.” We disagree.

¶ 46 It is well established that a plaintiff may not proceed with a claim directly
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under the North Carolina Constitution when an adequate alternative remedy is

available. Corum, 330 N.C. at 784, 413 S.E.2d at 291. In Corum, a North Carolina

resident complaining of injury resulting from the actions of an arm of the State of

North Carolina asserted a direct constitutional claim, which the State contended was

barred by the doctrine of sovereign immunity. Id. at 766, 413 S.E.2d at 280. Our

Supreme Court determined that “[t]he doctrine of sovereign immunity cannot stand

as a barrier to North Carolina citizens who seek to remedy violations of their rights

guaranteed by the Declaration of Rights” of our State Constitution. Id. at 785–86, 413

S.E.2d at 291. “[W]hen there is a clash between these constitutional rights and

sovereign immunity, the constitutional rights must prevail.” Id. at 786, 413 S.E.2d at

292. Thus, “in the absence of an adequate state remedy, one whose state

constitutional rights have been abridged has a direct claim against the State under

[the North Carolina] Constitution.” Id. at 782, 413 S.E.2d at 289.

¶ 47 Nonetheless, Corum, like Smith discussed above, involved issues of intrastate

sovereign immunity, and is therefore similarly inapplicable to the case at bar. Again,

the instant case raises an issue of interstate sovereign immunity, in that Plaintiff has

asserted claims against an arm of the State of Alabama and its agents, the individual

Defendants. While the Declaration of Rights in the North Carolina Constitution may

indeed trump our State’s intrastate sovereign immunity, in the interstate context, the

federal Constitution protects the several states’ sovereign immunity vis-à-vis one
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another; indeed, it is “embed[ded] . . . within the [federal] constitutional design.”

Hyatt III, ___ U.S. at ___, 203 L. Ed. 2d at 780.

Interstate sovereign immunity is . . . integral to the
structure of the Constitution. Like a dispute over borders
or water rights, a State’s assertion of compulsory judicial
process over another State involves a direct conflict
between sovereigns. The Constitution implicitly strips
States of any power they once had to refuse each other
sovereign immunity, just as it denies them the power to
resolve border disputes by political means. Interstate
immunity, in other words, is implied as an essential
component of federalism.

Id. at ___, 203 L. Ed. 2d at 781 (emphasis added) (citation and internal quotation

marks omitted).

¶ 48 Accordingly, Plaintiff’s Corum claim is without merit. The trial court did not

err in granting Defendants’ motion to dismiss this claim.

VI. The Individual Defendants

¶ 49 Lastly, Plaintiff argues that the trial court committed reversible error by

granting Defendants’ motion to dismiss with respect to the individual Defendants as

well as Troy University. Two of Plaintiff’s assertions on this issue sound from his

prior arguments: (1) that Troy University is not entitled to sovereign immunity, so

“the individual Defendants, who are residents and citizens of North Carolina, cannot

legitimately raise the issue of sovereign immunity”; and (2) the individual Defendants

committed intentional torts as “employees of a non-profit corporation doing business
FARMER V. TROY UNIV.

2021-NCCOA-36

Opinion of the Court

in North Carolina” and “should be treated like any other employees of a non-profit

corporation in this state.” These arguments lack merit.

¶ 50 “A suit against a public official in [her] official capacity is a suit against the

State.” White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013) (citation and

internal quotation marks omitted). Our Supreme Court has held that “when the

complaint does not specify the capacity in which a public official is being sued for

actions taken in the course and scope of [her] employment, we will presume that the

public official is being sued only in [her] official capacity.” Id. at 360–61, 736 S.E.2d

at 167.

¶ 51 In his complaint, Plaintiff avers that the individual Defendants were “agent[s]

and employee[s]” of Troy University. At no point in his complaint, however, does

Plaintiff specify that he is suing either individual Defendant in her personal capacity.

Accordingly, we must presume that he sued the individual Defendants in their official

capacities. Id. As such, his claims against the individual Defendants are as much

against the State of Alabama as are his claims against Troy University, see id. at 363,

736 S.E.2d at 168, and his argument to the contrary is without merit. Thus, the

individual Defendants are protected by the sovereign immunity afforded to Troy

University, and the trial court did not err in dismissing Plaintiff’s claims against the

individual Defendants.

Conclusion
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2021-NCCOA-36

Opinion of the Court

¶ 52 For the foregoing reasons, Plaintiff has not shown that the trial court erred in

granting Defendants’ motion to dismiss. Accordingly, we affirm the trial court’s order.

AFFIRMED.

Judges MURPHY and COLLINS concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10486290. Public record. Not legal advice.