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NO. COA98-446
NORTH CAROLINA COURT OF APPEALS
Filed:                                                                                                  21 September  1999
REGINALD L. FRAZIER, Plaintiff v. MAUREEN DEMAREST MURRAY, HENRY
C. BABB, JR., JAMES LEE BURNEY, and the DISCIPLINARY HEARING
COMMISSION OF THE NORTH CAROLINA STATE BAR, Defendants
1.                                                                                                      Tort Claims Act--only claims against the state--no liability for individual officers--
Disciplinary Hearing Commission--statutory authority to enforce disbarment by
criminal contempt
The Industrial Commission did not err in dismissing plaintiff’s claims against the
individual defendants under the Tort Claims Act for false imprisonment, intentional infliction of
emotional distress, and negligent infliction of emotional distress based on defendants’ exercise
of the Disciplinary Hearing Commission’s statutory authority to enforce an order of disbarment
by criminal contempt powers because the Tort Claims Act applies only to claims against the
state, and not for the liability of individual officers.
2.                                                                                                      Tort Claims Act--jurisdiction of Industrial Commission--not for intentional acts--
Disciplinary Hearing Commission--statutory authority to enforce disbarment by
criminal contempt
The Industrial Commission did not err in dismissing plaintiff’s claims against defendant
Disciplinary Hearing Commission under the Tort Claims Act for false imprisonment and
intentional infliction of emotional distress based on defendants’ exercise of its statutory authority
to enforce its order of disbarment by criminal contempt powers because the Tort Claims Act
does not give the Industrial Commission jurisdiction to award damages based on intentional acts.
3.                                                                                                      Tort Claims Act--negligence--public duty doctrine bars--Disciplinary Hearing
Commission--statutory authority to enforce disbarment by criminal contempt
The Industrial Commission did not err in dismissing plaintiff’s claims against defendant
Disciplinary Hearing Commission under the Tort Claims Act for negligent infliction of
emotional distress based on defendants’ exercise of its statutory authority to enforce its order of
disbarment by criminal contempt powers because negligence claims arising in the performance
of duties for the public at large are barred by the public duty doctrine unless the claim falls
within the exceptions of a special relationship or a special duty.
Judge TIMMONS-GOODSON concurs in part and dissents in part.




Plaintiff appeals from decision and order entered  14 January
1998 by the North Carolina Industrial Commission.    Heard in the
Court of Appeals  17 February  1999.
Michaux & Michaux, P.A., by Eric C. Michaux, for plaintiff-
appellant.
Attorney General Michael F. Easley, by Assistant Attorney
General D. Sigsbee Miller, for defendant-appellees.
HUNTER, Judge.
Plaintiff Reginald L. Frazier appeals from a decision by the
North Carolina Industrial Commission dismissing his complaints
against Maureen Demarest Murray, Henry C. Babb, Jr., James Lee
Burney and the Disciplinary Hearing Commission of the North
Carolina State Bar for false imprisonment, intentional infliction
of emotional distress and negligent infliction of emotional
distress.
The Disciplinary Hearing Commission disbarred the plaintiff
from the practice of law on  6 November  1989.    Plaintiff’s license
to practice law has not been reinstated.    When allegations were
made that plaintiff continued to practice law, the Disciplinary
Hearing Commission attempted to have the Craven County District
Attorney prosecute the plaintiff for the unauthorized practice of
law.    The district attorney refused to take action against the
plaintiff.    The Disciplinary Hearing Commission then requested
that Superior Court Judge D. Marsh McClelland hold plaintiff in
criminal contempt.    Judge McClelland found no legal basis to
enforce the disbarment order by a contempt proceeding and ruled
that the Disciplinary Hearing Commission was without authority to




punish plaintiff for contempt.    The State Bar did not appeal the
ruling.
On  10 August  1994, in response to allegations that plaintiff
was still practicing law, the State Bar filed a show-cause
motion, requesting that the Disciplinary Hearing Commission issue
an order commanding plaintiff to appear and show cause as to why
he should not be held in criminal contempt for continuing to
practice law in violation of the  1989 disbarment order.    Murray,
chair of the Disciplinary Hearing Commission, issued the show-
cause order ordering plaintiff to appear on  3 October  1994.    Both
the motion and the order were served on plaintiff by certified
mail and by personal service of the Craven County Sheriff’s
Department.
Murray, Babb and Burney conducted the show-cause hearing.
Plaintiff was not present, but was represented by Fred Williams.
The Disciplinary Hearing Commission found plaintiff guilty of
sixteen counts of criminal contempt.    The Disciplinary Hearing
Commission sentenced plaintiff to thirty days in jail and a fine
of  $200.00 for each of the sixteen counts.    The Disciplinary
Hearing Commission requested that the sentences be consecutively
served, resulting in a combined sentence of  480 days in jail,
$3,200.00 in fines and costs.
Plaintiff was arrested and incarcerated on  25 January  1995.
Pursuant to a writ of habeas corpus issued by the United States
District Court for the Eastern District of North Carolina,
plaintiff was ordered released on  13 November  1995.    That Court
made the following disposition:




Accordingly, this court orders the issuance
of a writ of habeas corpus releasing Mr.
Frazier from the conviction and sentence
heretofore imposed by the Disciplinary
Hearing Commission of the North Carolina
State Bar, unless within  30 days from the
entry of this order, the DHC affords Mr.
Frazier notice of his right to appeal to the
Superior Court of Wake County upon the times
and terms provided for in the General Statues
of North Carolina.
Frazier v. French, No.  5:95-HC-463-BO,  (E.D.N.C., filed Nov.
25,  1996) slip op. at  13.    The Disciplinary Hearing Commission
gave notice and plaintiff appealed to the Wake County Superior
Court.    The appeal is now pending in that forum.
Plaintiff filed a complaint under the Tort Claims Act, N.C.
Gen. Stat.  §  143-291  (1999), against individual defendants and
the Disciplinary Hearing Commission alleging false imprisonment
and the intentional infliction of emotional distress.    The
Disciplinary Hearing Commission filed a motion to dismiss on
behalf of all defendants pursuant to N.C. Gen. Stat.  §  1A-1,
Rules  12(b)(1),  (2) and  (6) and on behalf of the defendants as
individuals under Rules  12(b)(4) and  (5).    Plaintiff filed an
amended complaint to include negligent infliction of emotional
distress.    The amended complaint was authorized in an order by
Commissioner Bernadine S. Ballance.    The Disciplinary Hearing
Commission filed a motion to dismiss the amended complaint.
Commissioner Ballance denied the Disciplinary Hearing
Commission’s motion.    After a hearing, the Industrial Commission
entered an order on  14 January  1998 reversing Commissioner
Ballance and granting the Disciplinary Hearing Commission’s
motion to dismiss all claims.    Plaintiff appeals.




[1] Plaintiff’s sole argument on appeal is whether the
dismissal by the Industrial Commission of plaintiff’s claims
under N.C. Gen. Stat.  §  1A-1, Rules  12(b)(1),  (2),  (4),  (5) and
(6) was reversible error.    We conclude that the dismissal was
proper.
Plaintiff argues that the Industrial Commission’s reversal
of Commissioner Ballance’s order and the Industrial Commission’s
dismissal of plaintiff’s claims pursuant to N.C. Gen. Stat.  §  1A-
1, Rules  12(b)(1),  (2),  (4),  (5) and  (6) was reversible error not
supported by applicable law or the record.    Specifically,
plaintiff argues that he was entitled to pursue his remedies
before the Industrial Commission and that the dismissal of his
claims against both the individual defendants and the
Disciplinary Hearing Commission under Rule  12(b)(1),  (2),  (4),
(5) and  (6) was in error.    Defendants counter that only agencies
can be sued under the Tort Claims Act and the Industrial
Commission had no jurisdiction to review the determinations of
the Disciplinary Hearing Commission.
Under the Tort Claims Act, jurisdiction is vested in the
Industrial Commission to hear claims against state departments,
institutions and agencies for personal injuries or damages
sustained by any person as a result of the negligence of a state
officer, agent or employee acting within the scope of his
employment.    Guthrie v. State Ports Authority,  307 N.C.  522,  299
S.E.2d  618  (1983).    The Industrial Commission must decide whether
the alleged wrong:




[A]rose as a result of the negligence of any
officer, employee, involuntary servant or
agent of the State while acting within the
scope of his office, employment, service,
agency or authority, under circumstances
where the State of North Carolina, if a
private person, would be liable to the
claimant in accordance with the laws of North
Carolina.  .  .
N.C. Gen. Stat.  §  143-291(a)  (1999).    The Tort Claims Act
embraces only claims against state agencies.    Givens v. Sellars,
273 N.C.  44,  159 S.E.2d  530  (1968).    In order to recover under
the Tort Claims Act it is essential that plaintiff’s affidavit
identify the allegedly negligent employee and set forth the
negligence relied upon, N.C. Gen. Stat.  §  143-297  (1999); Ayscue
v. Highway Commission,  270 N.C.  100,  153 S.E.2d  823  (1967).
However, the Tort Claims Act  “does not apply to claims against
officers, employees, involuntary servants, and agents of the
State.”    Meyer v. Walls,  347 N.C.  97,  107,  489 S.E.2d  880,  886
(1997).    Therefore, the Industrial Commission properly dismissed
all claims against the individual defendants according to Rule
12(b)(1) and  (2).    Summonses were not processed against these
defendants so the dismissal pursuant to Rules  12(b)(4) and  (5)
was proper against the individual defendants as well.    There is
no liability for individual officials as the Tort Claims Act
applies only to claims against the state.
[2] Plaintiff brings forth claims of false imprisonment,
intentional infliction of emotional distress and negligent
infliction of emotional distress against the Disciplinary Hearing
Commission.    The Tort Claims Act does not give the Industrial
Commission jurisdiction to award damages based on intentional




acts.    Jenkins v. Department of Motor Vehicles,  244 N.C.  560,  94
S.E.2d  577  (1956).    Injuries intentionally inflicted by employees
of a state agency are not compensable under the Tort Claims Act.
Intentional acts are legally distinguishable from negligent acts.
Id.    Thus, the Industrial Commission correctly dismissed the
claims of false imprisonment and intentional infliction of
emotional distress against the Disciplinary Hearing Commission.
[3] As for negligent infliction of emotional distress, that
claim, too, was properly dismissed.    The claim is barred by the
public duty doctrine.
Tort liability for negligence attaches to the state and its
agencies under the Tort Claims Act only  “where the State of North
Carolina, if a private person, would be liable to the claimant in
accordance with the laws of North Carolina.”    N.C. Gen. Stat.  §
143-291(a).    Our Supreme Court has made it clear that the Tort
Claims Act incorporates existing common law rules of negligence,
including the public duty doctrine.    Hunt v. N.C. Dept. of Labor,
348 N.C.  192,  499 S.E.2d  747  (1998); Stone v. N.C. Dept. of
Labor,  347 N.C.  473,  495 S.E.2d  711, reh’g denied,  348 N.C.  79,
502 S.E.2d  836, cert. denied,  525 U.S.  1016,  142 L. Ed.  2d  449
(1998).    In Stone, the Court stated:
Private persons do not possess public
duties.    Only governmental entities possess
authority to enact and enforce laws for the
protection of the public.  .  .                                         .      If the
State were held liable for performing or
failing to perform an obligation to the
public at large, the State would have
liability when a private person could not.
The public duty doctrine, by barring




negligence actions against a governmental
entity absent a  “special relationship” or a
“special duty” to a particular individual,
serves the legislature’s express intention to
permit liability against the State only when
a private person could be liable.    Thus, the
plain words of the statute indicate an intent
that the doctrine apply to claims brought
under the Tort Claims Act.
Id. at  478-79,  495 S.E.2d at  714  (citations omitted)  (emphasis in
original).
Under the public duty doctrine, a governmental entity
exercising its statutory powers is ordinarily held to act for the
benefit of the general public rather than for the benefit of any
individual, and, therefore, cannot be held liable for negligence
in performance of, or failure to perform, its duties.    Stone,  347
N.C. at  482,  495 S.E.2d at  716.
The Disciplinary Hearing Commission clearly had authority to
discipline and disbar plaintiff.    N.C. Gen. Stat.  §§  84-28,  84-
28.1  (1995).    N.C. Gen. Stat.  §  84-28.1(b) authorizes the
Disciplinary Hearing Commission to  “hold hearings in discipline,
incapacity and disability matters, to make findings of fact and
conclusions of law after such hearings, and to enter orders
necessary to carry out the duties delegated to it by the
council.”    N.C. Gen. Stat.  §  84-28.1(b)  (1995).    Moreover, the
General Assembly intended to vest the Disciplinary Hearing
Commission with the statutory authority to enforce its order of
disbarment by criminal contempt powers comparable to those of the
general courts of justice.    N.C. Gen. Stat.  §  84-28.1(b1)




provides that  “[t]he disciplinary hearing commission of the North
Carolina State Bar, or any committee thereof, acting through its
chairman, shall have the power to hold persons, firms or
corporations in contempt as provided in Chapter  5A.”    N.C. Gen.
Stat.  §  84-28.1(b1)  (emphasis added).    Chapter  5A outlines the
criminal contempt powers of the general courts of justice.    Since
the Disciplinary Hearing Commission was acting within its
statutory authority in exercising its contempt powers, any claim
for negligence in the performance of its duties would come within
the public duty doctrine.
There are two recognized exceptions to the public duty
doctrine, both of which are narrowly applied.    The exceptions
exist where  (1) there is a special relationship between the
injured party and the state; and  (2) where the state creates a
special duty by virtue of an express promise to the injured
individual, the state fails to perform the promise, and the
individual’s reliance on the promise is causally related to the
injury suffered.    Hunt v. Dept. of Labor,  348 N.C.  192,  197,  499
S.E.2d  747,  750; see Stafford v. Barker,  129 N.C. App.  576,  577,
502 S.E.2d  1,  2, disc. review denied,  348 N.C.  695,  511 S.E.2d
650  (1998)  (quoting Braswell v. Braswell,  330 N.C.  363,  371,  410
S.E.2d  897,  902  (1991)).    Neither exception is applicable to this
case.
“In order to survive the application of the public duty
doctrine, the plaintiff’s allegations must fit within an




exception to the doctrine.”    Lovelace v. City of Shelby,  133 N.C.
App.  408,  412,  515 S.E.2d  722,  725  (1999).    The  “special
relationship” exception must be specifically alleged, and is not
created merely by a showing that the state undertook to perform
certain duties.    See Derwort v. Polk County,  129 N.C. App.  789,
793,  501 S.E.2d  379,  382  (1998).    To determine whether there is a
special relationship, the Court must consider whether the state’s
duty flowed to the plaintiff or the public at large, and where
the duty is statutory, the Court looks at the language of the
statute to determine whether the duty is intended to protect
individuals or the public at large.    Hasty,  348 N.C. at  198,  499
S.E.2d at  750.    There can be no doubt that the statutory duties
of the State Bar and its Disciplinary Hearing Commission in
disciplinary matters are intended for the protection of the
public from unworthy practitioners.    State v. Spivey,  213 N.C.
45,  195 S.E.  1  (1938).    To properly allege the  “‘special duty’
exception, the complaint must allege an  ‘overt promise’ of
protection by defendant, detrimental reliance on the promise, and
a causal relation between the injury and the reliance.”
Lovelace,  133 N.C. App. at  412-13,  515 S.E.2d at  725  (citation
omitted).
Plaintiff has not alleged any set of facts which, taken as
true, create a special relationship between plaintiff and the
Disciplinary Hearing Commission nor does the complaint allege the
elements of any special duty owed plaintiff by the Disciplinary




Hearing Commission.    Therefore, the public duty doctrine bars
plaintiff’s Tort Claims Act claim against the Disciplinary
Hearing Commission for negligent infliction of emotional distress
and the claim was properly dismissed pursuant to N.C. Gen. Stat.
§  1A-1, Rule  12(b)(6).    See Stone, supra  (“If the State were held
liable for performing or failing to perform an obligation to the
public at large, the State would have liability when a private
person could not.”), N.C. Gen. Stat.  §  143-291(a).
Affirmed.
Judge MARTIN concurs.
Judge TIMMONS-GOODSON concurs in part and dissents in part.
TIMMONS-GOODSON, Judge, concurring in part and dissenting in
part.
I agree with the majority that plaintiff’s claims against
the individual defendants and the Disciplinary Hearing Commission
(“DHC”) of the North Carolina State Bar for false imprisonment
and intentional infliction of emotional distress were properly
dismissed.    However, I do not agree that plaintiff’s claim
against the DHC for negligent infliction of emotional distress
was barred by the public duty doctrine and properly dismissed.
Therefore, I must respectfully dissent from the portion of the
majority opinion which affirms the Industrial Commission’s
dismissal of that claim.
The majority asserts that the General Assembly intended to




vest the DHC with criminal contempt powers.    I disagree and, like
Judge McClelland, am unable to detect any statutory authority
which would allow the DHC to punish by contempt a disbarred
attorney for the unauthorized practice of law. Therefore, in my
opinion, the DHC is subject to liability because it clearly acted
beyond its authority.
The duties of the DHC are delegated to it by the Council of
the North Carolina State Bar  (“Council”).    N.C. Gen. Stat.  §  84-
28.1(b)  (1995).    The Council is  “vested  .  .  . with the authority
to regulate the professional conduct of licensed attorneys.”
N.C. Gen. Stat.  §  84-23  (1995).    Therefore, it is clear that the
authority of the DHC extends only to licensed attorneys.    The DHC
may not exceed that authority which has been granted to it by the
Council.    The power of the DHC to  “hold persons, firms or
corporations in contempt as provided in Chapter  5A” does not
apply to non-lawyers.    N.C.G.S.  §  28.1(b1).
In addition, a well settled principle of statutory
interpretation is that a particular statute controls over a
general one.    Food Stores v. Board of Alcoholic Control,  268 N.C.
624,  151 S.E.2d  582  (1966).
Where one statute deals with a subject in detail with
reference to a particular situation  .  .  . and another
statute deals with the same subject in general and
comprehensive terms  .  .  .  , the particular statute will
be construed as controlling in the particular situation
unless it clearly appears that the General Assembly
intended to make the general act controlling in regard
thereto.




State v. Leeper,  59 N.C. App.  199,  202,  296 S.E.2d  7,  9, disc.
review denied,  307 N.C.  272,  299 S.E.2d  218  (1982).
Therefore, even if N.C.G.S.  §  84-37 is construed to be in
conflict with N.C.G.S.  §                                              84-28.1(b1), the former is controlling.
Section  84-37 specifically addresses the issue of the
unauthorized practice of law. Section  84-28.1(b1), on the other
hand, is a generalized statement regarding the DHC's power to
hold people, firms or corporations in contempt. As section  84-37
makes reference to the particular situation in issue, the DHC
must comply with the mandate that actions to enjoin unauthorized
practice be brought in superior court:
The venue for actions brought under this section shall
be the superior court of any county in which the acts
constituting unauthorized or unlawful practice of law
are alleged to have been committed or in which there
appear reasonable grounds that they will be committed
or in the county where the defendants in the action
reside or in Wake County.
N.C. Gen.Stat.  §  84-37(c)  (1995)  (emphasis added).
The DHC acted improperly in holding plaintiff in contempt in
a forum other than superior court. Therefore, the DHC was not
acting pursuant to a statutory duty, and the public purpose
doctrine does not shield it from liability for its negligent
acts.
Taking all the allegations and averments of plaintiff’s
complaint and amended complaint as true, and liberally construing
those allegations and averments, I believe the allegations are
sufficient to support the negligent infliction of emotional




distress claim.    Accordingly, I would reverse the Industrial
Commission’s dismissal of plaintiff’s claim of negligent
infliction of emotional distress against the DHC and in all other
regards affirm.

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