Lakins v. The Western N.C. Conf. of the United Methodist Church

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-337

No. COA21-415

Filed 17 May 2022

Mecklenburg County, No. 20 CVS 5985

MICHAEL LAKINS, 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.

Appeal by defendants, by writ of certiorari, from order entered 22 March 2021

by Judge Lisa C. Bell in Mecklenburg County Superior Court. Heard in the Court of

Appeals 9 February 2022.

Janet Janet & Suggs, LLC, by Richard Serbin and Matthew White, for plaintiff-

appellee.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Kelly S. Hughes, and

Ashley P. Cuttino, 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,

and D. Martin Warf, 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).

ZACHARY, Judge.

¶1 Defendants The Western North Carolina Conference of the United Methodist

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Church (“UMC”) and The Children’s Home, Incorporated (“TCH”) appeal from the

trial court’s order granting Plaintiff Michael Lakins’s motion to transfer Defendants’

motions to dismiss, which raised constitutional challenges to a portion of the Sexual

Assault Fast Reporting and Enforcement Act, to a three-judge panel of the Wake

County Superior Court pursuant to N.C. Gen. Stat. §§ 1-267.1(a1), 1-81.1(a1), and

1A-1, Rule 42(b)(4) (2021) (collectively, the “three-judge panel provisions”). After

careful review, we vacate and remand to the trial court for further proceedings.

Background

¶2 The Sexual Assault Fast Reporting and Enforcement Act (“the Act”) was

enacted in 2019 to “strengthen and modernize” our sexual assault laws. See An Act

to Protect Children from Sexual Abuse and to Strengthen and Modernize Sexual

Assault Laws, S.L. 2019-245, 2019 N.C. Sess. Laws 1231. Among other revisions, the

Act extended to ten years the statute of limitations for a civil action based on sexual

abuse suffered while a minor. Id. § 4.1, 2019 N.C. Sess. Laws at 1234; see N.C. Gen.

Stat. §§ 1-17(d), 1-52(16). Further, it provided that “a plaintiff may file a civil action

within two years of the date of a criminal conviction for a related felony sexual offense

against a defendant for claims related to sexual abuse suffered while the plaintiff was

under 18 years of age.” S.L. 2019-245, § 4.1, 2019 N.C. Sess. Laws at 1234; see N.C.

Gen. Stat. § 1-17(e). The Act also contained a provision, effective from 1 January 2020

to 31 December 2021, that revived “any civil action for child sexual abuse otherwise

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time-barred under G.S. 1-52 as it existed immediately before” the Act’s passage. See

S.L. 2019-245, § 4.2(b), 2019 N.C. Sess. Laws at 1235 (the “revival section”).

¶3 On 15 April 2020, Plaintiff filed a complaint against UMC and TCH, an

orphanage that Plaintiff alleged in his complaint was opened and operated by UMC.

Plaintiff sought damages for injuries resulting from sexual abuse by his “house

parents,” which allegedly occurred at TCH when Plaintiff was a minor in the 1970s

and residing at the orphanage. In his complaint, Plaintiff asserted claims for

negligence; negligent hiring, retention, and supervision; breach of fiduciary duty; and

constructive fraud. Plaintiff also maintained that his otherwise time-barred claims

were revived by the Act.

¶4 Defendants UMC and TCH filed their respective motions to dismiss pursuant

to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 26 and 30 June

2020, challenging, inter alia, the constitutionality of the Act’s revival section as

applied to Defendants. UMC further asserted that the claims should be dismissed

pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction.

¶5 On 15 December 2020, Plaintiff filed a motion to transfer Defendants’ motions

to dismiss challenging the Act’s constitutionality to a three-judge panel of the Wake

County Superior Court, pursuant to the three-judge panel provisions. On 22 February

2021, Plaintiff’s motion to transfer came on for hearing in Mecklenburg County

Superior Court. On 22 March 2021, the trial court entered an order granting

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Plaintiff’s motion to transfer, determining that “[t]he constitutional challenges

contained in [D]efendants[’] respective motions to dismiss under Rule 12(b)(6) raise

facial challenges” to the constitutionality of the Act. The trial court declined to rule

on Defendants’ remaining unnoticed and unscheduled Rule 12(b)(6) motions and

UMC’s unnoticed and unscheduled Rule 12(b)(1) motion, and ordered “a stay of these

proceedings pending a ruling from the three-judge panel.” Defendants timely filed

notices of appeal.

Grounds for Appellate Review

¶6 As a preliminary matter, we address this Court’s jurisdiction to review

Defendants’ appeals of the trial court’s order granting Plaintiff’s motion to transfer.

Plaintiff maintains that Defendants’ appeals should be dismissed as interlocutory.

Defendants concede that the appeals are interlocutory, but each initially contended

that the trial court’s order affected substantial rights and therefore was immediately

appealable.1 In the event that this Court determines that the trial court’s orders do

not affect a substantial right, Defendants have filed separate petitions for writ of

1 As discussed below, during the pendency of this case, this Court addressed the

substantial right that TCH initially alleged was affected by the trial court’s order in Cryan

v. National Council of Young Men’s Christian Association of the United States of America,

2021-NCCOA-612, ¶ 16. TCH candidly admitted in its reply to Plaintiff’s motion to dismiss

this appeal that Cryan “foreclosed” its substantial right argument. Accordingly, TCH now

relies upon its petition for writ of certiorari as its sole avenue for invoking this Court’s

jurisdiction.

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certiorari, asking this Court to assert jurisdiction and address the merits of their

arguments.

I. Interlocutory Appeals

¶7 Generally, this Court only hears appeals from final judgments. See N.C. Gen.

Stat. § 7A-27(b)(1)–(2). “A final judgment is one which disposes of the cause as to all

the parties, leaving nothing to be judicially determined between them in the trial

court.” Veazey v. City of Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381, reh’g

denied, 232 N.C. 744, 59 S.E.2d 429 (1950). By contrast, “[a]n interlocutory order is

one made during the pendency of an action, which does not dispose of the case, but

leaves it for further action by the trial court in order to settle and determine the entire

controversy.” Id. at 362, 57 S.E.2d at 381. Because an interlocutory order is not yet

final, with few exceptions, “no appeal lies to an appellate court from an interlocutory

order or ruling of the trial judge[.]” N.C. Consumers Power v. Duke Power Co., 285

N.C. 434, 437, 206 S.E.2d 178, 181 (1974).

¶8 Nonetheless, an interlocutory order may be immediately appealed if “the trial

court certifies, pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is no just reason

for delay of the appeal[,]” Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681

S.E.2d 770, 773 (2009), or if “the order affects some substantial right and will work

injury to [the] appellant if not corrected before appeal from final judgment[,]”

Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citation

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omitted); accord N.C. Gen. Stat. §§ 1-277(b), 7A-27(b)(3)(a). Our Supreme Court has

defined a “substantial right” as “a legal right affecting or involving a matter of

substance as distinguished from matters of form: a right materially affecting those

interests which a man is entitled to have preserved and protected by law: a material

right.” Oestreicher v. Am. Nat’l Stores Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805

(1976) (citation omitted). The burden is on the appellant to affirmatively establish

this Court’s jurisdiction to accept an interlocutory appeal. Jeffreys v. Raleigh Oaks

Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).

¶9 In the instant case, the trial court did not certify for immediate appellate

review the order granting Plaintiff’s motion to transfer, pursuant to Rule 54(b). See

Turner, 363 N.C. at 558, 681 S.E.2d at 773. Nevertheless, Defendants initially argued

that the interlocutory order from which they appeal affects a substantial right and

should be immediately reviewed.

¶ 10 Originally, both Defendants contended that the trial court’s order affected

their substantial right to have the case heard in the proper venue. However, as TCH

promptly acknowledged in its reply to Plaintiff’s motion to dismiss this appeal as

interlocutory, this Court recently addressed the issue of whether the transfer of a

motion to dismiss to a three-judge panel of Wake County Superior Court implicated

a substantial right. Cryan, 2021-NCCOA-612, ¶ 16.

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¶ 11 In Cryan, the defendant argued that appellate jurisdiction was proper in this

Court because the trial court’s order changed the venue of the case, thereby affecting

a substantial right. Id. ¶ 10. Although the defendant was “correct in its contention

that the right to venue established by statute is a substantial right[,]” the Cryan

Court concluded that an order transferring a defendant’s motion to dismiss to a three-

judge panel of the Wake County Superior Court does “not grant, deny, change, or

otherwise affect venue, and therefore d[oes] not affect a substantial right.” Id. ¶ 13.

Thus, in the instant case, Defendants’ argument to the contrary is unavailing.

¶ 12 UMC presents an alternative substantial-right argument: UMC posits that the

trial court effectively denied its Rule 12(b)(1) motion by holding the motion in

abeyance, thus threatening UMC’s First Amendment right to immunity “from judicial

meddling in ecclesiastical disputes” and warranting immediate appeal as a matter of

subject-matter jurisdiction.

¶ 13 Indeed, there are numerous appellate decisions holding that, although

interlocutory, the denial of a Rule 12(b)(1) motion to dismiss grounded in the

ecclesiastical-entanglement doctrine is immediately appealable. See, e.g., Harris v.

Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007); Doe v. Diocese of Raleigh,

242 N.C. App. 42, 46–47, 776 S.E.2d 29, 34 (2015). However, unlike those cases, in

the present case the trial court has not yet ruled on whether the ecclesiastical-

entanglement doctrine provides UMC with immunity from this suit; UMC’s Rule

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12(b)(1) motion remains pending. See N.C.R. App. P. 10(a)(1) (“It is . . . necessary for

the complaining party to obtain a ruling upon the party’s request, objection, or

motion” in order to preserve an issue for appellate review.). Thus, the ecclesiastical-

entanglement doctrine cannot provide the basis for the substantial right needed to

confer jurisdiction upon this Court to enable our review of UMC’s interlocutory

appeal.

¶ 14 Accordingly, and consistent with our precedent, we allow Plaintiff’s motion to

dismiss this appeal. However, this does not end our inquiry. We now turn to

Defendants’ petitions for writ of certiorari requesting review of the trial court’s order.

II. Petitions for Writ of Certiorari

¶ 15 In their petitions, Defendants maintain that the trial court erred in finding

that their motions to dismiss challenged the facial validity of the Act, prompting an

erroneous decision to transfer to a three-judge panel; hence, it is proper and in the

interest of justice for this Court to issue a writ of certiorari. For the reasons explained

below, we allow Defendants’ petitions for writ of certiorari to permit review of

Defendants’ arguments.

¶ 16 Pursuant to Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure,

this Court may in its discretion issue a writ of certiorari “in appropriate

circumstances . . . to permit review of the judgments and orders of trial tribunals . . .

when no right of appeal from an interlocutory order exists[.]” N.C.R. App. P. 21(a)(1).

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Such “appropriate circumstances” exist when “review will serve the expeditious

administration of justice or some other exigent purpose.” Amey v. Amey, 71 N.C. App.

76, 79, 321 S.E.2d 458, 460 (1984) (citation omitted). Further, the writ of certiorari

“is a discretionary writ, to be issued only for good and sufficient cause shown.” State

v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959), cert. denied, 362 U.S. 917, 4 L.

Ed. 2d 738 (1960). “A petition for the writ must show merit or that error was probably

committed below.” Id.

¶ 17 For the reasons that follow, we conclude that Defendants’ appeals present the

appropriate circumstances contemplated by Rule 21(a)(1), and that Defendants have

shown the requisite “good and sufficient cause” for this Court to issue the writ. Id.

Thus, in our discretion, we allow Defendants’ petitions for writ of certiorari pursuant

to Rule 21(a)(1), and proceed to the merits of their appeals.

Discussion

¶ 18 On appeal, Defendants argue that the trial court erred by concluding that they

raised facial constitutional challenges to the Act. UMC further argues that the trial

court erred by granting Plaintiff’s motion to transfer prior to hearing UMC’s Rule

12(b)(1) motion to dismiss for lack of subject-matter jurisdiction.

I. Standard of Review

¶ 19 Under the three-judge panel provisions, when a party properly advances a

facial challenge to the constitutionality of a statute, the trial court lacks jurisdiction

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to rule on the facial challenge “because sole jurisdiction to decide that matter resides

with the Superior Court of Wake County, and the matter is required to be heard and

determined by a three-judge panel of the Superior Court of Wake County,” as

provided by N.C. Gen. Stat. § 1-267.1(b2). Holdstock v. Duke Univ. Health Sys., Inc.,

270 N.C. App. 267, 281, 841 S.E.2d 307, 317 (2020) (citation and internal quotation

marks omitted). The trial court’s order thus raises issues concerning subject-matter

jurisdiction and statutory construction, each of which this Court reviews de novo.

McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). When

conducting de novo review, the appellate court “considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover

Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citation and internal

quotation marks omitted).

II. The Three-Judge Panel Provisions

¶ 20 The three-judge panel provisions create special procedures for hearing facial

challenges to the constitutionality of certain acts of our General Assembly.

¶ 21 Section 1-267.1(a1) provides that, except for actions challenging an act that

apportions or redistricts state legislative or congressional districts, “any facial

challenge to the validity of an act of the General Assembly shall be transferred

pursuant to G.S. 1A-1, Rule 42(b)(4), to the Superior Court of Wake County and shall

be heard and determined by a three-judge panel of” that court. N.C. Gen. Stat. § 1-

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267.1(a1). Section 1-81.1(a1) similarly provides that venue for such facial challenges

“lies exclusively with the Wake County Superior Court” in accordance with §§ 1-

267.1(a1) and 1A-1, Rule 42(b)(4). Id. § 1-81.1(a1).

¶ 22 Rule 42(b)(4)—which “is written in such a manner that not all its requirements

are clear on a first reading[,]” Holdstock, 270 N.C. App. at 272, 841 S.E.2d at 312—

sets forth the procedural requirements for the transfer of a facial challenge to an act

of the General Assembly to a three-judge panel. Rule 42(b)(4) provides, in pertinent

part:

Pursuant to G.S. 1-267.1, any facial challenge to the

validity of an act of the General Assembly . . . shall be heard

by a three-judge panel in the Superior Court of Wake

County if a claimant raises such a challenge in the

claimant’s complaint or amended complaint in any court in

this State, or if such a challenge is raised by the defendant

in the defendant’s answer, responsive pleading, or within

30 days of filing the defendant’s answer or responsive

pleading. In that event, the court shall, on its own motion,

transfer that portion of the action challenging the validity

of the act of the General Assembly to the Superior Court of

Wake County for resolution by a three-judge panel if, after

all other matters in the action have been resolved, a

determination as to the facial validity of an act of the

General Assembly must be made in order to completely

resolve any matters in the case. The court in which the

action originated shall maintain jurisdiction over all

matters other than the challenge to the act’s facial validity.

For a motion filed under Rule 11 or Rule 12(b)(1) through

(7), the original court shall rule on the motion, however, it

may decline to rule on a motion that is based solely upon

Rule 12(b)(6). If the original court declines to rule on a Rule

12(b)(6) motion, the motion shall be decided by the three-

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judge panel. The original court shall stay all matters that

are contingent upon the outcome of the challenge to the

act’s facial validity pending a ruling on that challenge and

until all appeal rights are exhausted.

N.C. Gen. Stat. § 1A-1, Rule 42(b)(4).

III. Facial or As-Applied Challenge

¶ 23 Prior to invoking the three-judge panel provisions, “it is the duty of the trial

court to first determine whether [the party] raised a facial challenge” to the validity

of a statute in accordance with Rule 42(b)(4). Holdstock, 270 N.C. App. at 281, 841

S.E.2d at 317 (internal quotation marks omitted). “A facial challenge is an attack on

a statute itself as opposed to a particular application.” Id. at 272, 841 S.E.2d at 311

(quoting City of Los Angeles v. Patel, 576 U.S. 409, 415, 192 L. Ed. 2d 435, 443 (2015)).

“[A]n as-applied challenge represents a [party]’s protest against how a statute was

applied in the particular context in which [the party] acted or proposed to act, while

a facial challenge represents a [party]’s contention that a statute is incapable of

constitutional application in any context.” LeTendre v. Currituck Cty., 259 N.C. App.

512, 534, 817 S.E.2d 73, 89 (2018), appeal dismissed, supersedeas and disc. review

denied, 372 N.C. 54, 822 S.E.2d 641 (2019).

¶ 24 On appeal, Defendants argue that the trial court erred by concluding that they

raised facial, rather than as-applied, challenges to the constitutionality of the Act in

their motions to dismiss. For example, UMC alleged, in pertinent part:

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1. Plaintiff’s claims are time-barred. While he

alleges that this is a revival action brought pursuant to

[the Act], the Act does not salvage Plaintiff’s untimely

claims. The Act impermissibly amends preexisting (and

expired) limitations and repose periods. See N.C. Gen.

Stat. §§ 1-17(e), 1-52(5), (16), and (19), and 1-56 (2019).

As such, these sections of the Act should be declared

unconstitutional as applied to [UMC] under the facts as

alleged in this case, and . . . Plaintiff’s claims should be

dismissed pursuant to Rule 12(b)(6) as barred under the

statutes of limitations and repose.

2. The plain language of the statutory

amendments establishes that the Act reopens any

statutes of limitations or repose to bring claims against

the alleged abusers only for the assault and abuse, and

not against third parties for ancillary claims, and so

Plaintiff’s claims against [UMC] fail.

3. Plaintiff makes no allegation that either of his

alleged abusers has a criminal record, and so he cannot

meet a condition precedent to pleading his claims under

N.C. Gen. Stat. § 1-17(e).

(First emphasis added).

¶ 25 Similarly, in its motion to dismiss, TCH moved the trial court “for an order

decreeing that the General Assembly’s 2019 amendments” to N.C. Gen. Stat. §§ 1-52

and 1-56(b) “are unconstitutional as applied to this defendant[.]” (Emphasis added).

In support of its motion to dismiss, TCH alleged, in pertinent part:

1. Plaintiff’s claims are time barred and thus fail

as a matter of law. The General Assembly amended

portions of, inter alia, N.C. Gen. Stat[.] §§ . . . 1-52 and

1-56 in [the Act]. These statutory amendments purport

to revive civil claims that were otherwise time barred

under the preexisting statutes of limitation and repose.

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2. In this case, the General Assembly’s

amendments to [N.C. Gen. Stat.] §§ 1-52 and 1-56(b),

are unconstitutional only as applied to this defendant on

the particular facts of this case because they contravene

fundamental state substantive due process

requirements enshrined in N.C. CONST. Art. 1, § 19

and N.C. CONST. Art. IV, § 13(2).

3. Specifically, under these portions of the North

Carolina Constitution, [TCH] has a vested

constitutional right to freedom from civil liability after

an existing statutory limitation or repose period on

claims has already expired. Here, the preexisting three-

year limitation and ten-year repose periods applicable

to [P]laintiff’s claims filed against [TCH] have long

since expired. Even liberally construing the complaint,

that pleading conclusively establishes that the events

alleged therein occurred between 1970 and 1973. Such

previously terminated civil liability cannot be revived

now by an act of the General Assembly without

violating North Carolina’s substantive due process

protections, particularly when such revival attempts to

reinstate claims against [TCH] that are almost fifty

years old.

4. Accordingly, [P]laintiff’s claims against

[TCH] are barred by the applicable statutes of

limitations and repose codified in N.C. Gen. Stat. §§ 1-

52(5), (16), (19), and 1-56(a) prior to the enactment of

the legislation which is subject to this applied state

constitutional challenge.

WHEREFORE, [TCH] respectfully prays the Court

for an order decreeing that the 2019 amendments to

N.C. Gen. Stat. §§ 1-52 (Session Laws 2019-245 s. 4(b)[)]

and 1-56(b) are unconstitutional as applied to [TCH] in

this case . . . .

(Second and third emphases added).

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¶ 26 In each of these motions to dismiss, Defendants repeatedly state that their

constitutional challenges are as-applied. UMC argued that the relevant provisions “of

the Act should be declared unconstitutional as applied to [UMC] under the facts as

alleged in this case,” and specifically contended that “the Act reopens any statutes of

limitations or repose to bring claims against the alleged abusers only for the assault

and abuse, and not against third parties for ancillary claims[.]” (First emphasis

added). UMC thus did not contend that the Act “is incapable of constitutional

application in any context.” LeTendre, 259 N.C. App. at 534, 817 S.E.2d at 89 (citation

omitted). Rather, UMC argued “against how [the Act] was applied in the particular

context” of Plaintiff’s claims. Id. (citation omitted).

¶ 27 Similarly, TCH moved the trial court to dismiss on the grounds that the Act

was “unconstitutional as applied to this defendant[.]” TCH further argued that the

Act was “unconstitutional only as applied to this defendant on the particular facts of

this case” and explained its specific objections to Plaintiff’s invocation of the Act as

applied to the facts of this case. As with UMC, TCH plainly argued “against how [the

Act] was applied in the particular context” of the present case and did not assert that

the Act was “incapable of constitutional application in any context.” Id. (citation

omitted).

¶ 28 Nevertheless, the trial court concluded that “[t]he constitutional challenges

contained in [D]efendants[’] respective motions to dismiss under Rule 12(b)(6) raise

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facial challenges” to the Act. Yet in Cryan—which was released after the trial court

entered its transfer order in this case and which opinion the court accordingly did not

have the benefit of reviewing when it ruled on this issue—this Court reversed a trial

court’s determination that a defendant had raised a facial challenge to N.C. Gen. Stat.

§ 1-17(e) where the defendant “d[id] not challenge the authority of the General

Assembly to create disabilities as a means of extending the time during which a

sufferer of sexual abuse may sue. Rather, [the d]efendant only challenge[d]

subsection (e)’s application to claims that had already become time-barred prior to its

enactment in 2019.” Cryan, 2021-NCCOA-612, ¶ 22.

¶ 29 Defendants urge us to conclude that the constitutional challenges raised in

their motions to dismiss were as-applied challenges and not facial challenges.

However, to the extent that this Court’s opinion in Cryan provides new and additional

insight on this question of law, the proper disposition is for our Court to vacate the

trial court’s order and remand for the trial court’s reconsideration in light of Cryan.

See Blitz v. Agean, Inc., 197 N.C. App. 296, 312, 677 S.E.2d 1, 11 (2009) (“Where a

ruling is based upon a misapprehension of the applicable law, the cause will be

remanded in order that the matter may be considered in its true legal light.” (citation

omitted)), disc. review and cert. denied, 363 N.C. 800, 690 S.E.2d 530 (2010).

Accordingly, we vacate the trial court’s order and remand for reconsideration of

Plaintiff’s motion to transfer in light of Cryan.

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IV. UMC’s Rule 12(b)(1) Motion

¶ 30 Below, UMC moved to dismiss Plaintiff’s action pursuant to Rule 12(b)(1) for

lack of subject-matter jurisdiction, but did not notice or schedule it for hearing. In its

appellate brief to this Court, UMC explains that “for a judge or a jury to determine

what, if any, employment relationship existed” between UMC and the individuals

who Plaintiff alleges abused him as a minor, that judge or jury “will have to engage

in examinations of The Book of Discipline, religious doctrine, doctrines and practices

regarding ordination of clergy, Christian principles, and governing structures and

processes of The United Methodist Church in 1970.”

¶ 31 Because the trial court declined to rule on UMC’s Rule 12(b)(1) motion, we

express no opinion on the merits of UMC’s ecclesiastical-entanglement argument. As

UMC acknowledges, the merits of this argument are “not the point at this juncture.”

Rather, UMC merely argues on appeal that, as a challenge to the trial court’s subject-

matter jurisdiction to even hear this action, its Rule 12(b)(1) motion is “not contingent

upon the outcome of the challenge to the act’s facial validity.” Holdstock, 270 N.C.

App. at 278, 841 S.E.2d at 315 (citation omitted). Accordingly, UMC argues that the

trial court was required to resolve its Rule 12(b)(1) motion prior to transferring any

portion of this matter pursuant to Rule 42(b)(4). We agree.

¶ 32 Once a trial court determines that a party has sufficiently raised a facial

constitutional challenge in order to invoke the three-judge panel provisions, Rule

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42(b)(4) sets forth the procedure that the trial court must follow in transferring the

facial challenge to a three-judge panel of the Wake County Superior Court. Under

Rule 42(b)(4), the trial court “shall, on its own motion, transfer that portion of the

action” raising the facial challenge “if, after all other matters in the action have been

resolved, a determination as to the facial validity of an act of the General Assembly

must be made in order to completely resolve any matters in the case.” N.C. Gen. Stat.

§ 1A-1, Rule 42(b)(4) (emphasis added).

¶ 33 Rule 42(b)(4) thus “requires [that] the transfer for the facial constitutional

challenge should not happen until after a trial on the other unaffected claims in the

lawsuit.” Hull v. Brown, 2021-NCCOA-525, ¶ 12 (citation and internal quotation

marks omitted). “ ‘All other matters’ under Rule 42(b)(4) means ‘all matters that are

not contingent upon the outcome of the challenge to the act’s facial validity.’ ”

Holdstock, 270 N.C. App. at 278, 841 S.E.2d at 315 (citation omitted).

¶ 34 The ecclesiastical-entanglement doctrine is rooted in the First Amendment to

the Constitution of the United States. “The Establishment Clause and the Free

Exercise Clause of the First Amendment prohibit any ‘law respecting an

establishment of religion, or prohibiting the free exercise thereof.’ ” Doe, 242 N.C.

App. at 47, 776 S.E.2d at 34 (quoting U.S. Const. amend. I). “As applied to the states

through the Fourteenth Amendment, the First Amendment also restricts action by

state governments and the servants, agents and agencies, of state governments.” Id.

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(citation omitted). “As such, the civil courts of North Carolina are prohibited from

becoming entangled in ecclesiastical matters and have no jurisdiction over disputes

which require an examination of religious doctrine and practice in order to resolve

the matters at issue.” Id. (citation and internal quotation marks omitted). This

prohibition arises under both the Free Exercise and Establishment Clauses, as “(1)

by hearing religious disputes, a civil court could influence associational conduct,

thereby chilling the free exercise of religious beliefs; and (2) by entering into a

religious controversy and putting the enforcement power of the state behind a

particular religious faction, a civil court risks establishing a religion.” Id. at 48, 776

S.E.2d at 34 (citation and internal quotation marks omitted).

¶ 35 Accordingly, the ecclesiastical-entanglement doctrine potentially implicates

the subject-matter jurisdiction of the courts of this state in this case. It is a “universal

principle as old as the law” that the proceedings of a court without subject-matter

jurisdiction “are a nullity.” Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808

(1964). “Put another way, subject[-]matter jurisdiction is the indispensable

foundation upon which valid judicial decisions rest, and in its absence a court has no

power to act.” 4U Homes & Sales, Inc. v. McCoy, 235 N.C. App. 427, 433, 762 S.E.2d

308, 312 (2014) (citation and internal quotation marks omitted).

¶ 36 The issue of the trial court’s subject-matter jurisdiction over this case is “not

contingent upon the outcome of the challenge to the act’s facial validity.” Holdstock,

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270 N.C. App. at 278, 841 S.E.2d at 315 (citation omitted). Instead, the issue of the

facial challenge is arguably contingent upon the outcome of the Rule 12(b)(1) motion:

if the trial court determines that UMC’s ecclesiastical-entanglement arguments have

merit, the trial court has the “duty to take notice of the defect and stay, quash or

dismiss the suit[,]” at least with respect to UMC. Burgess, 262 N.C. at 465, 137 S.E.2d

at 808.

¶ 37 Further, Rule 42(b)(4) itself explicitly envisions Rule 12(b) motions as not being

matters “contingent upon the outcome of the challenge to the act’s facial validity.”

Holdstock, 270 N.C. App. at 278, 841 S.E.2d at 315 (citation omitted). Discussing the

procedure for “all matters other than the challenge to the act’s facial validity[,]” Rule

42(b)(4) states:

For a motion filed under Rule 11 or Rule 12(b)(1) through

(7), the original court shall rule on the motion, however, it

may decline to rule on a motion that is based solely upon

Rule 12(b)(6). If the original court declines to rule on a Rule

12(b)(6) motion, the motion shall be decided by the three-

judge panel.

N.C. Gen. Stat. § 1A-1, Rule 42(b)(4).

¶ 38 “Under the doctrine of expressio unius est exclusio alterius, when a statute lists

the situations to which it applies, it implies the exclusion of situations not contained

in the list.” Cooper v. Berger, 371 N.C. 799, 810, 822 S.E.2d 286, 296 (2018) (citation

omitted). Rule 42(b)(4) specifically authorizes the trial court to decline to rule on a

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motion that is based solely upon Rule 12(b)(6), in which case, “the motion shall be

decided by the three-judge panel.” N.C. Gen. Stat. § 1A-1, Rule 42(b)(4). By

implication, however, Rule 42(b)(4) does not authorize a trial court to decline to rule

on a Rule 12(b)(1) motion, as the trial court did here. See id.

¶ 39 The trial court has neither heard nor ruled on UMC’s Rule 12(b)(1) motion to

dismiss for lack of subject-matter jurisdiction; instead, the present appeal is from the

trial court’s order on Plaintiff’s motion to transfer Defendants’ motions to dismiss.

However, when the trial court concluded that Defendants sufficiently raised facial

challenges to warrant the invocation of the three-judge panel provisions, under the

order of operations established by Rule 42(b)(4) and this Court’s precedents in Hull

and Holdstock, the trial court should have ruled on UMC’s Rule 12(b)(1) motion prior

to ordering any transfer. See Hull, 2021-NCCOA-525, ¶ 12; Holdstock, 270 N.C. App.

at 278, 841 S.E.2d at 315.

Conclusion

¶ 40 For the foregoing reasons, we vacate the trial court’s transfer order and

remand this case to the trial court for reconsideration of Plaintiff’s motion to transfer,

in light of Cryan. On remand, the trial court shall also consider UMC’s Rule 12(b)(1)

motion to dismiss as a threshold issue with regard to UMC.

VACATED AND REMANDED.

Judges COLLINS and CARPENTER concur.