IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-57

Filed 2 January 2024

Mecklenburg County, No. 22-CVS-4643

TYSON BATES AND REGINA BATES, Plaintiffs,

v.

CHARLOTTE-MECKLENBURG HISTORIC LANDMARKS COMMISSION; 

DANIEL MORRILL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS 

CONSULTING DIRECTOR OF THE CHARLOTTE-MECKLENBURG HISTORIC 

LANDMARKS COMMISSION; HAROLD LEONARD NORMAN, INDIVIDUALLY 

AND IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE PROJECTS 

COMMITTEE; AND JACK THOMSON, INDIVIDUALLY AND IN HIS OFFICIAL 

CAPACITY AS DIRECTOR OF THE CHARLOTTE-MECKLENBURG HISTORIC 

LANDMARKS COMMISSION, Defendants.

Appeal by defendants from order entered 14 October 2022 by Judge Reggie E. 

McKnight in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 

September 2023.

Ruff Bond Cobb Wade & Bethune, LLP, by Ronald L. Gibson, for defendantappellants.

Q Byrd Law, by Quintin D. Byrd, for plaintiff-appellees.

THOMPSON, Judge.

In this interlocutory appeal which concerns two failed real estate transactions,

defendants contend that the trial court erred in denying their motion to dismiss some

of plaintiffs’ claims based upon defendants’ assertions of governmental and sovereign 

immunity. As discussed below, in light of controlling precedent and certain 
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deficiencies in plaintiffs’ complaint, we agree in part and therefore we reverse the 

trial court’s denial of defendants’ motion to dismiss (1) claims for negligence in the 

care of historic property and unjust enrichment as to all defendants and (2) the claim 

of conversion as to the entity defendant and the individually named defendants in 

their official capacities. However, we leave undisturbed the trial court’s denial of 

defendants’ motion to dismiss plaintiffs’ (3) claim of breach of the covenant of good 

faith and fair dealing against all defendants and their (4) conversion claim against 

the individual defendants in their individual capacities.

Defendants have also filed a petition for writ of certiorari in this Court, (5) 

seeking consideration of additional issues for which there is no right of immediate 

appeal, which we dismiss as moot in part and deny in part.

I. Factual Background and Procedural History

This case arises from plaintiffs’ attempt to purchase from defendants a 

property located in Huntersville and known as the Torrence-Lytle School. According 

to plaintiffs’ complaint, the property, which is no longer in use as a school and has 

fallen into disrepair, “is one of the oldest remaining African-American school 

buildings in Mecklenburg County” and is therefore of historic significance. In 

November 2007, the property was transferred to defendant Charlotte-Mecklenburg 

Historic Landmarks Commission (HLC),

1 an entity created by the City of Charlotte 

1 The individual defendants are the former consulting director, director, and a member of HLC.
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and Mecklenburg County pursuant to N.C. Gen. Stat. § 160D-941 et seq., for the 

purpose of identifying and preserving historic properties. Plaintiffs attempted to 

purchase the property from HLC by entering into contracts for purchase2 in 2016 and 

again in 2019 but were never able to obtain ownership. As a result of this frustration 

of their purpose, plaintiffs filed a complaint in the Superior Court, Mecklenburg 

County on 22 March 2022 which alleged eight claims against defendants3: 

discriminatory real estate practices, breach of the covenant of good faith and fair 

dealing, breach of contract, negligence in the care of historic property, unfair and 

deceptive trade practices, conversion, unjust enrichment, and punitive damages.

On 10 June 2022, defendants filed a motion for summary judgment on 

plaintiffs’ breach of contract claim and a motion to dismiss all of plaintiffs’ claims 

pursuant to Rule of Civil Procedure 12(b)(1), (2), and (6), raising governmental 

immunity on behalf of HLC and the individual defendants in their official capacities,

and public official immunity on behalf of the individual defendants in their individual 

capacities, along with other defenses. After the motions were heard at the 11 July 

2022 civil session of the Superior Court, Mecklenburg County, the trial court allowed 

defendants’ motion to dismiss plaintiffs’ claims for discriminatory real estate 

2 Preservation commissions such as HLC are authorized to “exchange or dispose of the property 

by public or private sale, lease or otherwise, subject to covenants or other legally binding restrictions 

that will secure appropriate rights of public access and promote the preservation of the property.” N.C. 

Gen. Stat. § 160D-942(3) (2021).

3 The individual defendants were sued in both their official and individual capacities.
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practices, unfair and deceptive trade practices, and punitive damages. The trial court, 

however, denied the motion to dismiss as to plaintiffs’ claims for breach of the 

covenant of good faith and fair dealing, breach of contract, negligence in the care of 

historic property, conversion of earnest money deposits, and unjust enrichment. No 

ruling by the trial court on defendants’ motion for summary judgment appears in the 

record on appeal. Defendants filed their notice of appeal on 2 November 2022.

II. Analysis

Defendants argue that the trial court erred in denying their motion to dismiss 

plaintiffs’ claims for breach of the covenant of good faith and fair dealing, negligence 

in the care of historic property, conversion, and unjust enrichment based upon 

defendants’ assertion of sovereign immunity defenses: governmental immunity on 

behalf of HLC and the individual defendants in their official capacities and public 

official immunity on behalf of the individual defendants in their individual capacities. 

As to HLC and the individual defendants in their official capacities, we agree as to 

plaintiffs’ claims for negligence in the care of historic property, conversion, and unjust 

enrichment, but we conclude that neither governmental nor public official immunity 

is a defense to a claim of breach of the covenant of good faith and fair dealing. As to 

the claim of conversion against the individual defendants in their individual 

capacities, we hold that the trial court properly denied defendants’ motion to dismiss, 

as plaintiffs’ complaint was sufficient to survive those defendants’ immunity defense

at the pleading stage, and accordingly, we reverse the trial court’s order as to that 
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portion of that claim. Plaintiffs’ petition for writ of certiorari seeking review of other 

issues is denied in part and dismissed as moot in part.

A. Appellate jurisdiction

The order from which this appeal is taken is interlocutory. See, e.g., Bartley v. 

City of High Point, 381 N.C. 287, 293, 873 S.E.2d 525, 532 (2022) (“An 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 to settle and determine the 

entire controversy.” (citation omitted)). “As a general proposition, interlocutory 

orders are not immediately appealable unless the order in question affects a 

substantial right.” State ex rel. Stein v. Kinston Charter Academy, 379 N.C. 560, 571, 

866 S.E.2d 647, 655 (2021) (citing N.C. Gen. Stat. § 7A-27(b)(3)(a) (2019)). See also 

N.C. Gen. Stat. § 1-277(a) (2021) (providing that “[a]n appeal may be taken from every 

judicial order or determination of a judge of a superior . . . court, upon or involving a 

matter of law or legal inference . . . that affects a substantial right”).

“Where a defendant asserts a form of sovereign immunity,4 “such immunity is 

more than a mere affirmative defense, as it shields a defendant entirely from having 

to answer for its conduct at all in a civil suit, for damages.” Craig v. New Hanover 

4

“The doctrine of sovereign/governmental immunity provides the State, its counties, and its 

public officials with absolute and unqualified immunity from suits against them in their official 

capacity,” with sovereign immunity applying to claims against the State and governmental immunity

applying to claims against counties and cities. Wray v. City of Greensboro, 247 N.C. App. 890, 892, 787 

S.E.2d 433, 436 (2016) (citations omitted), affirmed, 370 N.C. 41, 802 S.E.2d 894 (2017). In turn, “[t]he 

defense of public official immunity is a ‘derivative form’ of governmental immunity.” Fullwood v. 

Barnes, 250 N.C. App. 31, 38, 792 S.E.2d 545, 550 (2016) (citation omitted). 
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Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citing Mitchell v. 

Forsyth, 472 U.S. 511, 525 (1985)). For this reason, a trial court’s ruling “on grounds 

of sovereign immunity is immediately appealable, though interlocutory, because it 

represents a substantial right, as ‘[t]he entitlement is an immunity from suit rather 

than a mere defense to liability; and . . . it is effectively lost if a case is erroneously 

permitted to go to trial.’ ” Craig, 363 N.C. at 338, 678 S.E.2d at 354 (quoting Mitchell, 

472 U.S. at 526).

We are mindful, however, that “[o]rders denying Rule 12(b)(1) motions to 

dismiss based on sovereign immunity, and therefore public official immunity, ‘are not 

immediately appealable because they neither affect a substantial right nor constitute 

an adverse ruling as to personal jurisdiction.’ ” Green v. Howell, 274 N.C. App. 158, 

164, 851 S.E.2d 673, 668 (2020) (quoting Can Am South, LLC v. State, 234 N.C. App. 

119, 124, 759 S.E.2d 304, 308 (citation omitted), disc. review denied, 367 N.C. 791, 

766 S.E.2d 624 (2014)). See also Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 

S.E.2d 182, 184 (1982) (holding, in the context of interlocutory appeals implicating 

sovereign immunity, that “while [N.C. Gen. Stat. §] 1-277(b)[

5] permits the immediate 

appeal of an order denying a motion made pursuant to Rule 12(b)(2) to dismiss for 

lack of jurisdiction over the person, that statute does not apply to orders denying 

motions made pursuant to Rule 12(b)(1) to dismiss for lack of subject matter 

5

“Any interested party has the right of immediate appeal from an adverse ruling as to the 

jurisdiction of the court over the person or property of the defendant.” N.C. Gen. Stat. § 1-277(b).
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jurisdiction”). However, 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). 

As noted above, defendants’ motion to dismiss asserting governmental and 

public official immunity was made pursuant to Rule of Civil Procedure 12(b)(1), (2), 

and (6), but although the trial court’s order allowing in part and denying in part 

defendants’ motion cites all three subsections of Rule 12 as the basis for the motion, 

the order does not specifically state the ground or grounds upon which the court ruled.

Accordingly, we dismiss defendants’ appeal from the trial court’s order to the extent 

it was premised upon Rule 12(b)(1) but allow the appeal to the extent that the trial 

court’s ruling was based upon Rule 12(b)(2) and (6).

B. Standard of review

When reviewing a trial court’s ruling on a motion to dismiss, this Court must 

consider all of the allegations in the complaint as true. Taylor v. Bank of Am., N.A., 

382 N.C. 677, 679, 878 S.E.2d 798, 800 (2022). We then consider legal questions, such 

as the applicability of governmental and public official immunity, de novo. Wray, 370 

N.C. at 47, 787 S.E.2d at 436.
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C. Governmental immunity

HLC and the individual defendants in their official capacities contend that the 

trial court erred in denying their motion to dismiss the claims for breach of the 

covenant of good faith and fair dealing, negligence in the care of historic property, 

conversion, and unjust enrichment because plaintiffs’ complaint fails to allege that 

defendants waived their governmental immunity.6 We agree in part, but we are not 

persuaded that governmental immunity is a defense to a claim of breach of the 

covenant of good faith and fair dealing.

“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,” Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997) 

(citations omitted), and in turn, “a municipal corporation has immunity for acts 

committed in its governmental capacity.” Evans v. Hous. Auth. of City of Raleigh, 359 

N.C. 50, 53, 602 S.E.2d 668, 670 (2004).

In order to overcome a defense of governmental 

immunity, the complaint must specifically allege a waiver 

of governmental immunity. Absent such an allegation, the 

complaint fails to state a cause of action. No particular 

language is required to allege a waiver of governmental 

immunity, but the complaint must allege facts that, if 

6 Defendants do not contest the trial court’s denial of their motion to dismiss the breach of 

contract claim on the basis of their assertion of sovereign immunity because “[a] State or local 

government . . . waives that immunity when it enters into a valid contract, to the extent of that 

contract.” Wray, 370 N.C. at 47, 802 S.E.2d at 899 (citations omitted). Thus, sovereign immunity is not 

a defense to a breach of contract claim. Id. Accordingly, that claim is not before the Court in this 

interlocutory appeal and remains pending in the trial court.
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taken as true, are sufficient to establish a waiver by the 

State of governmental immunity.

Fullwood, 250 N.C. App. at 37, 792 S.E.2d at 550 (emphasis added) (citations, 

quotation marks, and brackets omitted). 

Here, the complaint does not allege a waiver of governmental immunity. In 

their brief to this Court, plaintiffs acknowledge their failure to include such an 

allegation in their pleading and agree that precedent holds, “[a]bsent an allegation of 

waiver of immunity, . . . HLC is entitled to governmental immunity” on their claims 

of negligence in the care of historic property, conversion, and unjust enrichment. But 

while conceding error by the trial court in denying defendants’ motion to dismiss as 

to the claims for negligence in the care of historic property, conversion, and unjust 

enrichment, as against HLC and the individual defendants in their official capacities, 

plaintiffs contend that governmental immunity is not available as a defense to claims

of breach of the covenant of good faith and fair dealing because that cause of action 

arises from a contract, and thus plaintiffs ask that we leave the trial court’s ruling as 

to that claim undisturbed. We find merit in this argument.

The specific question of whether governmental immunity is potentially 

applicable upon a claim of breach of the covenant of good faith and fair dealing

appears to be a matter of first impression in North Carolina. No party cites, and our 

research has not revealed, any North Carolina appellate decision explicitly 

addressing this specific issue. However, reasoning from our precedent regarding the 
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implied covenant, breach of contract, and sovereign immunity, we hold that sovereign 

immunity in its various forms is not a defense to this contract-based claim.

“In every contract there is an implied covenant of good faith and fair dealing 

that neither party will do anything which injures the right of the other to receive the 

benefits of the agreement.” Bicycle Transit Authority v. Bell, 314 N.C. 219, 228, 333 

S.E.2d 299, 305 (1985) (citation and internal quotation marks omitted). Because the 

covenant of good faith and fair dealing is in effect an unstated term of every contract, 

where, as here, the underlying factual allegations supporting both causes of action 

are the same, appellate courts in North Carolina have treated a claim of breach of the 

implied covenant in a similar manner to a traditional breach of contract claim:

As a general proposition, where a party’s claim for 

breach of the implied covenant of good faith and fair 

dealing is based upon the same acts as its claim for breach 

of contract, we treat the former claim as “part and parcel”

of the latter. Murray v. Nationwide Mut. Ins. Co., 123 N.C. 

App. 1, 19, 472 S.E.2d 358, 368 (1996), disc. review denied, 

345 N.C. 344, 483 S.E.2d 173 (1997); see Suntrust Bank v. 

Bryant/Sutphin Props., LLC, 222 N.C. App. 821, 833, 732 

S.E.2d 594, 603 (“As the jury determined that plaintiff did 

not breach any of its contracts with defendants, it would be 

illogical for this Court to conclude that plaintiff somehow 

breached implied terms of the same contracts.”), disc. 

review denied, 366 N.C. 417, 735 S.E.2d 180 (2012).

Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 38–39, 817 S.E.2d 247, 256, 

disc. review denied, 371 N.C. 788, 821 S.E.2d 181 (2018). See also Arnesen v. Rivers 

Edge Golf Club & Plantation, Inc., 368 N.C. 440, 451, 781 S.E.2d 1, 9 (2015). Further, 

our Supreme Court has recently clarified:
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A plaintiff may rely on the implied covenant [of good 

faith and fair dealing] when there is a gap in the contract 

and a defendant behaves in an unexpected manner, 

thereby frustrating the fruits of the bargain that the 

asserting party reasonably expected. Stated another way, 

breach of the implied covenant is a claim available to a 

plaintiff who could not have contracted around a 

defendant’s allegedly arbitrary or unreasonable behavior.

Value Health Sols., Inc. v. Pharm. Rsch. Assocs., 385 N.C. 250, 268, 891 S.E.2d 100, 

115 (2023) (citation omitted).

As noted previously, “[a] State or local government . . . waives [sovereign or 

governmental] immunity when it enters into a valid contract, to the extent of that 

contract.” Wray, 370 N.C. at 47, 802 S.E.2d at 899 (citations omitted). Thus, because 

every contract—including those to which a governmental entity is a party—includes 

as an implied term a covenant of good faith and fair dealing, we hold that the general 

rule—that sovereign immunity is waived upon the entry by a government entity into 

a valid contract—encompasses a waiver of immunity against suit for a breach of the 

implied covenant term just as it does for the explicit terms of the contract.

Accordingly, we reverse the trial court’s order denying the motion to dismiss 

plaintiffs’ claims for negligence in the care of historic property, conversion, and unjust 

enrichment as to HLC and the individual defendants in their official capacities, but 

affirm the denial of defendants’ motion to dismiss plaintiffs’ claim for a breach of the 

covenant of good faith and fair dealing.

D. Public official immunity
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The individual defendants in their individual capacities contend that the trial 

court should have dismissed the remaining claims against them on the basis of public 

official immunity because plaintiffs failed to allege malice, corruption, or actions 

outside defendants’ official duties—and facts supporting such allegations—that if 

true would be sufficient to rebut the applicable presumption of good faith accorded to 

public officials. Our review of the complaint reveals that the individual defendants 

are correct, both as to the controlling precedent on this point and the contents of 

plaintiffs’ complaint.

It is settled law in this jurisdiction that a public official, 

engaged in the performance of governmental duties 

involving the exercise of judgment and discretion, may not 

be held personally liable for mere negligence in respect 

thereto. The rule in such cases is that an official may not 

be held liable unless it be alleged and proved that his act, 

or failure to act, was corrupt or malicious . . . , or that he 

acted outside of and beyond the scope of his duties. . . . As 

long as a public officer lawfully exercises the judgment and 

discretion with which he is invested by virtue of his office, 

keeps within the scope of his official authority, and acts 

without malice or corruption, he is protected from liability.

Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (citations and quotation 

marks omitted). Moreover,

absent evidence to the contrary, it will always be presumed 

that public officials will discharge their duties in good faith 

and exercise their powers in accord with the spirit and 

purpose of the law. This presumption places a heavy 

burden on the party challenging the validity of public 

officials’ actions to overcome this presumption by 

competent and substantial evidence.
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To rebut the presumption and hold a public official 

liable in his individual capacity, a plaintiff’s complaint 

must allege, and the facts alleged must support a 

conclusion, that the official’s act, or failure to act, was 

corrupt or malicious, or that the official acted outside of and 

beyond the scope of his duties.

Green, 274 N.C. App. at 165–66, 851 S.E.2d at 679 (emphasis added) (citations, 

quotation marks, and brackets omitted).

7

Here, plaintiffs’ complaint fails to allege that any of the individual defendants 

acted outside the scope of their duties or acted with malice or corruption, a point they 

appear to concede given that their entire appellate argument regarding public official 

immunity is as follows:

Defendants’ argument for the denial of personal 

liability for the individual defendants should be discarded 

by this Court as they focus solely on the issue of malice or 

corruption. This Court has repeatedly held that the normal 

analysis of whether a public official acted with malice or 

corruption sufficient to remove qualified immunity is 

“unnecessary” when they are being sued (1) in their 

individual capacities and (2) for intentional torts. Wells v. 

N.C. Dep’t of Corr., 152 N.C. App. 307, 320–21, 567 S.E.2d 

803, 812–13 (2002); see also Beck v. City of Durham, 154 

N.C. App. 221, 230, 573 S.E.2d 183, 190 (2002) and 

Richmond v. City of Asheville, 2015 N.C. App. LEXIS 551, 

at *9, 242 N.C. App. 252, 775 S.E.2d 925 (2015) 

(unpublished).

7

“A defendant acts with malice when he wantonly does that which a man of reasonable 

intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious 

to another. An act is corrupt when it is done with a wrongful design to acquire some pecuniary profit 

or other advantage.” Green, 274 N.C. App. at 167, 851 S.E.2d at 679–80 (citations and internal 

quotation marks omitted).
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We find the cases cited by plaintiffs inapposite as to all but one of their claims against 

the individual defendants in their individual capacities given that the rules on which 

plaintiffs rely apply only where intentional torts are alleged. In such cases, “[b]ecause 

malice encompasses intent, . . . if a party alleges an intentional tort claim, the doctrine 

of qualified immunity does not immunize public officials . . . from suit in their 

individual capacities.” Hawkins v. State, 117 N.C. App. 615, 630, 453 S.E.2d 233, 242

(applying the rule in a case where the plaintiff alleges, inter alia, intentional infliction 

of emotional distress), disc. rev. denied, 342 N.C. 188, 463 S.E.2d 79 (1995); see also 

Wells, 152 N.C. App. at 320, 567 S.E.2d at 813 (applying the rule in a case where the 

plaintiff alleges, inter alia, intentional infliction of emotional distress) and Beck, 154 

N.C. App. at 230, 573 S.E.2d at 190 (applying the rule to claims of constructive willful 

discharge, intentional infliction of emotional distress, tortious interference with 

contract, and tortious interference with prospective advantage).

As noted above, because a claim for breach of the covenant of good faith and 

fair dealing is treated in this context as akin to a breach of contract claim, public 

official immunity, a derivative form of governmental immunity, is not an available 

defense for the individual defendants in any capacity. Two of the other claims which 

are the subject of this appeal—negligence in the care of historic properties and unjust 

enrichment—are not intentional torts. One claim, negligence in the care of historic 

property, specifically concerns the individual defendants’ official duties, as 

demonstrated by the pertinent allegations in the complaint which concern various 
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votes, the review of expert recommendations, and the consideration of cost in 

stabilizing the historic property in question, and moreover asserts negligence rather 

than intentional acts by the individual defendants. Further, there is no inferred 

malice in the tort of unjust enrichment, which the Supreme Court has defined as 

having

five elements[:] First, one party must confer a benefit upon 

the other party[; s]econd, the benefit must not have been 

conferred officiously, that is it must not be conferred by an 

interference in the affairs of the other party in a manner 

that is not justified in the circumstances[; t]hird, the 

benefit must not be gratuitous[; f]ourth, the benefit must 

be measurable[; and l]ast, the defendant must have 

consciously accepted the benefit.

JPMorgan Chase Bank, N.A. v. Browning, 230 N.C. App. 537, 541–42, 750 S.E.2d 

555, 559 (2013) (citations and quotation marks omitted).

Because negligence in the care of historic properties and unjust enrichment

are not intentional torts, there is no “stand-in” implication of bad intent which could 

serve to cover for the absence in the complaint of allegations of malice, corruption, or 

acting outside of the scope of official duties by the individual defendants as to those 

claims. Accordingly, we reverse the portion of the trial court’s order which denied the 

motion to dismiss plaintiffs’ claims for negligence in the care of historic properties

and unjust enrichment against the individual defendants.

“Conversion, however, is an intentional tort.” Kawai Am. Corp. v. Univ. of N.C. 

at Chapel Hill, 152 N.C. App. 163, 167, 567 S.E.2d 215, 218 (2002) (citations 
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omitted).8 Thus, under Hawkins, there was no need for plaintiffs to allege malice in 

order to surmount the affirmative defense of public official immunity as to their claim 

of conversion against the individual defendants in their individual capacities. See 

Hawkins, 117 N.C. App. at 630, 453 S.E.2d at 242. The trial court’s denial of the 

motion to dismiss is therefore affirmed as to the claim of conversion against the 

individual defendants in their individual capacities.9

III. Defendants’ Petition for Writ of Certiorari

In addition to their interlocutory appeal, defendants seek review by certiorari 

of two issues which they acknowledge are not immediately appealable: whether the 

trial court erred in denying defendants’ motion for summary judgment on plaintiffs’

breach of contract claim and whether the trial court erred in denying defendants’ 

motion to dismiss plaintiffs’ claims for breach of the covenant of good faith and fair 

dealing, negligence in the care of historic property, conversion of two earnest money 

payments, and unjust enrichment. Defendants contend that these matters should be 

addressed by this Court now because these issues are interrelated with those raised 

8

“[T]he tort of conversion is well defined as an unauthorized assumption and exercise of the 

right of ownership over goods or personal chattels belonging to another, to the alteration of their 

condition or the exclusion of an owner’s rights.” Peed v. Burleson’s, Inc., 244 N.C. 437, 439, 94 S.E.2d 

351, 353 (1956) (citation and internal quotation marks omitted); see also Variety Wholesalers, Inc. v. 

Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 523, 723 S.E.2d 744, 747 (2012) (“There are, in 

effect, two essential elements of a conversion claim: ownership in the plaintiff and wrongful possession 

or conversion by the defendant.” (citation omitted)).

9 As discussed in section II-C, plaintiffs’ conversion claim against the individual defendants in 

their official capacities is barred by governmental immunity, see, e.g., DeMurry v. N.C. Dep’t of Corr., 

195 N.C. App. 485, 492, 673 S.E.2d 374, 380 (2009), and the portion of the trial court’s order to the 

contrary is reversed. 
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in their appeal based upon governmental and public official immunity such that 

immediate review would “serve the expeditious administration of justice,” citing 

Jessee v. Jessee, 212 N.C. App. 426, 431, 713 S.E.2d 28, 32–33 (2011), and because 

defendants believe that they “have meritorious defenses in addition to governmental 

and public official immunity.”

As an initial matter, we cannot review by certiorari, or otherwise, any ruling 

on defendants’ motion for summary judgment on plaintiffs’ breach of contract claim

because no order resolving that motion appears in the record before this Court.

10 The 

order entered by the trial court on 14 October 2022 and appealed from as a matter of 

right is captioned as resolving defendants’ motion to dismiss and addresses only that

motion, as defendants themselves note in their “Statement of the Organization of the 

Trial Court.” Accordingly, there is simply nothing for this Court to review regarding 

defendants’ motion for summary judgment.

In this decision, we have reversed the trial court’s denial of defendants’ motion 

to dismiss plaintiffs’ claims for negligence in the care of historic property, conversion 

of two earnest money payments, and unjust enrichment, and thus the petition for 

writ of certiorari regarding those issues is rendered moot. As for the trial court’s 

10 If the trial court did not in fact rule on defendants’ summary judgment motion and 

defendants wished to obtain such a ruling on their motion for summary judgment, they could have 

filed a motion with the trial court alleging a mistake pursuant to Rule of Civil Procedure 60(b)(1) or a 

petition with this Court seeking a writ of mandamus pursuant to Rule of Appellate Procedure 22.

Defendants did not elect to do either.
BATES V. CHARLOTTE-MECKLENBURG HIST. LANDMARKS COMM’N

Opinion of the Court

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denial of defendants’ motion to dismiss plaintiffs’ claim for breach of the covenant of 

good faith and fair dealing, defendants do not explain how that matter is

“interrelated” with the issues of governmental and public official immunity which are 

before this Court as a matter of right and instead focus the majority of their petition 

for writ of certiorari on their “meritorious defenses in addition to governmental and 

public official immunity.” We see no obvious overlap between the immunity issues 

addressed above and the defenses presented in defendants’ certiorari petition, and 

accordingly, we leave for the trial court an evaluation of their merits.

IV. Conclusion

For the reasons discussed above, we reverse the trial court’s order denying 

defendants’ motion to dismiss plaintiffs’ claims for negligence in the care of historic 

property and unjust enrichment against all defendants, and the claim for conversion 

against HLC and the individual defendants in their official capacities, but we affirm 

the denial of the motion to dismiss as to the claims for breach of the covenant of good 

faith and fair dealing against all defendants and for conversion against the individual 

defendants in their individual capacities. Put simply, plaintiffs’ case may proceed on 

their breach of contract and breach of the covenant of good faith and fair dealing 

claims against all defendants and on their claim of conversion against the individual 

defendants in their individual capacities. 

Defendant’s petition for writ of certiorari is dismissed as moot in part and 

denied in part.
BATES V. CHARLOTTE-MECKLENBURG HIST. LANDMARKS COMM’N

Opinion of the Court

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REVERSED IN PART; AFFIRMED IN PART; DISMISSED IN PART; 

DENIED IN PART; REMANDED.

Judges HAMPSON and STADING concur.