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Houpe v. City of Statesville

January 20, 1998

PRESTON GENE HOUPE, PLAINTIFF,
v.
CITY OF STATESVILLE, A MUNICIPAL CORPORATION; JACK KING, IN HIS OFFICIAL CAPACITY AS CITY MANAGER; ROBERT WARSHAW, INDIVIDUALLY AND IN HIS FORMER OFFICIAL CAPACITY AS CHIEF OF POLICE; DALTON Z. BROWN, IN HIS OFFICIAL CAPACITY AS ASSISTANT CHIEF OF POLICE AND FORMERLY ACTING CHIEF OF POLICE; EDWARD JARVIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS LIEUTENANT AND FORMERLY AS ACTING ASSISTANT CHIEF OF POLICE; GREGORY STONE, IN HIS OFFICIAL CAPACITY AS AN INTERNAL AFFAIRS INVESTIGATOR, AND MICHAEL GRANT, IN HIS OFFICIAL CAPACITY AS A CRIMINAL INVESTIGATOR, DEFENDANTS.



Iredell County. No. 95 CVS 01054. Appeal by defendants from order filed 6 September 1996 by Judge Zoro J. Guice, Jr., in Iredell County Superior Court.

John, Judge. Judges Greene and Walker concur.

The opinion of the court was delivered by: John

JOHN, Judge.

Defendant City of Statesville (the City) and co-defendants City Manager Jack King (City Manager King), Statesville police officers former Chief Robert Warshaw (Chief Warshaw), Assistant Chief of Police Dalton Z. Brown (Brown), Investigations Lieutenant Edward Jarvis (Jarvis), Internal Affairs Investigator Gregory Stone (Stone), and criminal investigator Michael Grant (Grant) appeal an order of the trial court denying their motion for judgment on the pleadings. We affirm that order in part and reverse in part.

On 21 June 1995, plaintiff, a Statesville police officer, filed suit against defendants alleging eleven causes of action, including, inter alia, wrongful termination, breach of contract, libel, slander, malicious prosecution, false arrest, and violation of civil rights. Chief Warshaw and Jarvis were sued both individually and in their official capacities, while City Manager King, Brown, Stone and Grant were sued solely in their official capacities.

Pertinent factual information as alleged in plaintiff's complaint included the following: Sometime prior to December 1993, plaintiff complained "to third persons employed with the City's Police Department" (the Department) that a "double standard" existed between the disciplinary treatment of high-ranking officers, including Jarvis, and low-ranking officers, with the former being given preference. Chief Warshaw responded by threatening to terminate plaintiff's employment if he made further accusations regarding the alleged impunity of Jarvis and others in the Department.

In January 1994, Jarvis reported to Chief Warshaw that plaintiff had been engaged in "certain off duty/patrol assistance activities" on 27 December 1993 which, according to Jarvis, may have included criminal activity. Chief Warshaw assigned Jarvis to conduct an internal investigation into plaintiff's 27 December 1993 activities, notwithstanding the Chief's knowledge that Jarvis harbored personal prejudice against plaintiff. Stone was assigned to assist Jarvis.

According to plaintiff's complaint, Jarvis and Stone improperly conducted their investigation into plaintiff's conduct, failing to interview witnesses or develop physical evidence in a thorough manner. The pair also directed plaintiff to submit to a recorded and videotaped interrogation without the presence of legal counsel, during which inquiry Jarvis misrepresented evidence and statements of witnesses. Although Jarvis subsequently concluded there existed no probable cause to suspect criminal activity on the part of plaintiff, Jarvis wrote and published to Chief Warshaw and others a report that plaintiff had attempted to break into one business and had actually broken into another during the early morning hours of 27 December 1993.

On 28 January 1994, Chief Warshaw terminated plaintiff's employment in retaliation for plaintiff's complaints about double standards within the Department. Although the City's charter, ordinances and policies specified that non-probationary Department employees possessed the right to appeal termination to the City's Civil Service Board (the Board), plaintiff was afforded no opportunity to pursue such an appeal. The City, by and through the Board, City Manager King, Chief Warshaw and Jarvis, conspired to deny plaintiff's right to a hearing by asserting he was merely a probationary employee. Notwithstanding the City's denial of a hearing, plaintiff tendered, under the City's charter and Board policy, timely written notice of appeal of his termination. Immediately upon receipt thereof, Chief Warshaw, in an attempt to intimidate plaintiff into abandoning his appeal, assigned Grant to conduct a criminal investigation concerning plaintiff's 27 December 1993 activities. On 23 February 1994, Grant reported the findings of his inquiry to Chief Warshaw and Jarvis. No criminal charges were brought against plaintiff at that time.

Seeking to establish his status as a non-probationary employee, plaintiff filed a declaratory judgment action 18 February 1994 in Iredell County Superior Court. On 11 July 1994, approximately one month prior to the scheduled trial date for that case, Jarvis (then Acting Assistant Chief of Police) instructed Grant to testify before the Iredell County grand jury regarding his investigation of the events of 27 December 1993. Following Grant's testimony, the grand jury issued two indictments against plaintiff, and the latter was subsequently arrested 13 July 1994 and subjected to significant negative publicity in the local media.

Thereafter, on 26 August 1994, a jury in plaintiff's declaratory judgment action returned a verdict in plaintiff's favor, determining he indeed qualified as a non-probationary employee. The Board consequently conducted a hearing 28 November to 8 December 1994, following which the panel determined plaintiff was unjustifiably terminated and reinstated him as a police officer with the City. Early in 1995, the local District Attorney dismissed the criminal charges pending against plaintiff, citing the Board's findings.

As noted above, plaintiff initiated the instant action 21 June 1995. Defendants filed answer denying the essential allegations of the complaint and asserting, inter alia, the defense of governmental immunity. Defendants thereafter filed an amended answer, and the City and the co-defendants sued in their official capacities (hereinafter collectively "defendants," excluding Chief Warshaw and Jarvis individually) subsequently moved for judgment on the pleadings (defendants' motion) 8 March 1996. Defendants' motion was denied in an order filed 6 September 1996, and defendants timely appealed to this Court.

A party moving for judgment on the pleadings admits:

(1) the truth of all well-pleaded facts in the non-movant's pleading, together with all permissible inferences to be drawn from such facts; and (2) the untruth of his own allegations in so far as they are controverted by the non-movant's pleading.

Hedrick v. Rains, 121 N.C. App. 466, 468, 466 S.E.2d 281, 283, aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). Judgment on the pleadings is not favored in the law because it is both summary and final. Id. The movant is held to a strict standard to show that no material issue of fact exists and that he or she is clearly entitled to judgment. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). While advancing a multiplicity of arguments, defendants in the main contend the trial court properly determined there was no material issue of fact regarding plaintiff's claims because his complaint revealed each was barred under the doctrine of governmental immunity.

Although defendants' appeal of the trial court's order denying defendants' motion is interlocutory,

we have held that orders denying dispositive motions grounded on the defense of governmental immunity are immediately reviewable as affecting a substantial right.

Hedrick, 121 N.C. App. at 468, 466 S.E.2d at 283; see also Whitaker v. Clark, 109 N.C. App. 379, 381, 427 S.E.2d 142, 143, disc. review and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993). We therefore entertain defendants' appeal to the extent it is based upon the defense of governmental immunity. Moreover, where it would be in the interests of judicial economy to do so, see Liggett Group v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674, 678 (1993)(this Court may entertain an interlocutory appeal when doing so "would expedite the administration of Justice"), we will in our discretion address defendants' alternative arguments.

Governmental immunity shields municipalities and the officers or employees thereof sued in their official capacities from suits based on torts committed while performing a governmental function. Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). This Court has previously held that the provision of police services, Coleman v. Cooper, 89 N.C. App. 188, 192, 366 S.E.2d 2, 5, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988), and the training and supervision of police officers, Lyles v. City of Charlotte, 120 N.C. App. 96, 100, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996), constituted governmental functions. We believe the actions of a city and its officials in investigating and disciplining a city police officer accused of criminal activity are likewise encompassed within the rubric of "governmental functions."

A municipality may waive governmental immunity for tort actions by the purchase of liability insurance. N.C.G.S. § 160A-485(a)(1994). However, the purchase of such insurance must be alleged in order for a complaint to set forth a claim against a governmental entity or its officers or employees in their official capacities. Morrison-Tiffin v. Hampton, 117 N.C. App. 494, 504, 451 S.E.2d 650, 657-58 , appeal dismissed and disc. review denied, 339 N.C. 739, 454 S.E.2d 654 (1995). Notwithstanding presence of the requisite allegation in the instant complaint, defendants contend plaintiff's tort claims are excluded from coverage by the alleged policies of insurance (defendants' policies) underwritten by General Star National Insurance Company (General Star policy) and National Casualty Company (National Casualty policy). See Dickens v. Thorne, 110 N.C. App. 39, 44, 429 S.E.2d 176, 179 (1993)(governmental immunity retained for causes of action excluded by insurance policy). These policies were attached to defendants' answer and incorporated therein. See Minor v. Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865, 867, disc. review denied, 312 N.C. 495, 322 S.E.2d 558 (1984)(attached exhibits become part of the pleadings).

We emphasize defendants' motion was directed at plaintiff's claims against City Manager King, Chief Warshaw, Brown, Jarvis, Stone and Grant, in their official capacities. It is well-settled that an action . . . brought against individual officers in their official capacities . . . is one against the state for the purposes of applying the doctrine of sovereign immunity.

Dickens, 110 N.C. App. at 45, 429 S.E.2d at 180 (citations omitted). Thus, while we discuss the propriety of defendants' motion as to the City and the individual defendants in their official capacities, we do not consider plaintiff's claims ...


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