in the Court of Appeals 10 January 2017.
by petitioner from order entered 22 December 2015 by Judge
William H. Coward in Buncombe County No. 14 CVS 4300 Superior
McGuire, Wood & Bissette, P.A., by Sabrina Presnell
Rockoff, and Asheville City Attorney Robin Currin, Deputy
City Attorney Kelly Whitlook, and Assistant City Attorney
John Maddux, for petitioner-appellant.
C. Hunter for respondent-appellee.
North Carolina Session Law 2009-401 specifically provides
that a petitioner may request a trial by jury and then
provides that the matter shall proceed "as any other
civil action, " the specificity of the session law
controls and the trial court erred in denying
petitioner's motion to strike respondent's demand for
a jury trial.
matter was first brought before the Civil Service Board of
the City of Asheville ("the Civil Service Board")
as a quasi-judicial matter on 9 September 2014. The Civil
Service Board was tasked with a review of the process by
which Senior Police Officer Robert H. Frost had been
terminated from employment on 12 March 2014. Officer
Frost's termination resulted from an accusation of
order entered 25 September 2014, the Civil Service Board made
findings of fact which indicated that on 2 February 2014,
Officer Frost was in uniform, driving a marked police
vehicle, working as a patrol officer for the Asheville Police
Department when he was "flagged down" by a store
clerk for the "Hot Spot" located at 70 Asheland
Avenue. The clerk directed Officer Frost's attention to a
woman, Amber Banks, who had previously been banned from the
store. As Banks was leaving the area, Officer Frost yelled
for her to stop and ran to catch up with her as she kept
walking away. Officer Frost arrested Banks for trespassing.
escorted Banks back toward his vehicle, a struggle ensued.
Officer Frost took Banks to the ground with a leg sweep,
called for backup, and placed Banks in handcuffs. As they
again proceeded toward the police vehicle, it appeared to
Officer Frost that Banks was getting ready to kick him. In
order to defend himself, he began running with Banks and then
pushed her onto the hood of his police vehicle. On the car
hood, Banks rolled over and Officer Frost believed she was
attempting to bite him. So, he took her to the pavement,
admitting that he lost his grip and that Banks landed harder
than he had intended. Banks laid still and quiet on the
ground until another officer arrived. Emergency Medical
Services also arrived, checked Banks at the scene, and
cleared her to go to the detention facility.
same day of the incident, Officer Frost completed an
"Asheville PD Use of Force Report." The report was
reviewed by Officer Frost's chain of command, and
ultimately, the incident was investigated by the State Bureau
of Investigation and Office of Professional Standards. On 14
February 2014, Officer Frost was placed on paid
non-disciplinary investigative suspension. Following a 28
February 2014 panel hearing convened upon a supervisor's
recommendation of disciplinary action, a recommendation was
made that Officer Frost be terminated from employment. On 12
March 2014, Officer Frost was terminated from employment with
the City of Asheville Police Department. Officer Frost timely
appealed the termination to the Civil Service Board. The
Civil Service Board found that termination of Officer Frost
was improper and in violation of city policies as Officer
Frost was not provided adequate due process protection.
Therefore, the Civil Service Board concluded that the
City's termination of Officer Frost was not justified,
that the termination should be rescinded, and that Officer
Frost should be reinstated with back pay and all benefits.
October 2014, the City of Asheville filed a civil summons and
a petition for trial de novo in Buncombe County Superior
Court. Shortly thereafter, on the same day, Officer Frost
likewise filed with Buncombe County Superior Court a petition
for a trial de novo.
petition for a trial de novo, Officer Frost requested a trial
by jury pursuant to Section 8(g) of the Asheville Civil
Service Law. In its petition, the City of Asheville did not
request a trial by jury. However, on 12 November 2014, in
response to Officer Frost's petition for trial de novo,
the City filed an answer, a motion to dismiss, and a motion
to strike. The City challenged Officer Frost's standing
to appeal, given that the order he attempted to appeal ruled
in his favor-that his termination was not justified and he
was to be reinstated with full back pay. The City further
challenged that due to the City's appeal-filed before
Officer Frost's appeal-involving the same parties and
relating to the same subject matter, Officer Frost's
petition was unlawful and "wholly unnecessary."
a hearing in Buncombe County Superior Court, the Honorable
Mark E. Powell entered a 25 February 2015 order granting the
City's motion to dismiss with prejudice Officer
Frost's petition for a de novo trial by jury, as Officer
Frost lacked standing and his petition was abated by the
doctrine of prior pending action.
November 2015, a hearing was held on Officer Frost's
demand for a jury trial in response to the City of
Asheville's petition for a trial de novo, the Honorable
William H. Coward, Judge presiding. On 22 December 2015,
Judge Coward entered an order noting that the City of
Asheville filed a 9 November 2015 motion to strike Officer
Frost's demand for a jury trial "on the grounds that
the [Asheville Civil Service Law, 1953 N.C. Session Laws
Chapter 747, as amended by 2009 N.C. Session Law Chapter 401
("the Act")] only allows the 'petitioner'
to request a jury trial." The court acknowledged the
language of the Act, stating "either party may appeal to
the Superior Court Division . . . for a trial de novo. . . .
If the petitioner desires a trial by jury, the petitioner
shall so state. . . . [And] [t]here[after], the matter shall
proceed to trial as any other civil action." The court
reasoned that because the Act directs "the matter shall
proceed . . . as any other civil action, " Rule 38 of
our Rules of Civil Procedure ("Jury trial of
right"), allows Officer Frost, as the respondent, to
request a trial by jury. Thus, the trial court denied
petitioner City of Asheville's motion to strike
respondent Officer Frost's demand for a jury trial.
Petitioner City of Asheville appeals.
Judgments and orders of the Superior Court are divisible into
these two classes: (1) Final judgments; and (2) interlocutory
orders. . . . 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 in order
to settle and determine the entire controversy.
Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d
377, 381 (1950) (citations omitted). "An appeal may be
taken from every judicial order or determination of a judge
of a superior or district court, upon or involving a matter
of law or legal inference, whether made in or out of session,
which affects a substantial right claimed in any action or
proceeding[.]" N.C. Gen. Stat. § 1-277(a) (2015).
"[A]ppeal lies of right directly to the Court of Appeals
. . . (3) [f]rom any interlocutory order or judgment of a
superior court or district court in a civil action or
proceeding that . . .: a. Affects a substantial right."
Id. § 7A-27(b)(3)a.
Supreme Court has held that a trial court order denying
"the defendant's motion that the plaintiffs'
demand for a jury trial be invalidated as an interlocutory
order which does not affect a substantial right" is
properly overruled, as "an order denying a jury trial is
appealable, an order requiring a jury trial should be
appealable." Faircloth v. Beard, 320 N.C. 505,
506-07, 358 S.E.2d 512, 513-14 (1987) (citing In re
McCarroll, 313 N.C. 315, 327 S.E.2d 880 (1985); In
re Ferguson, 50 N.C.App. 681, 274 S.E.2d 879 (1981)).
See generally In re Foreclosure of Elkins, 193
N.C.App. 226, 227, 667 ...