in the Court of Appeals 23 August 2017.
by plaintiff from order entered 13 June 2016 by Judge Mark E.
Powell in Superior Court, Jackson County No. 15 CVS 123.
A. Sawyer for plaintiff-appellant.
Ridenour & Goss, P.A., by Eric Ridenour and Jeffrey Goss,
Curtis Lambert ("plaintiff") appeals from the trial
court's order of dismissal in favor of defendant Town of
Sylva ("defendant"). At the close of
plaintiff's evidence in a jury trial of the three claims
in the complaint, the trial court granted a directed verdict
for defendant on all claims. Plaintiff appealed, and for the
reasons that follow, we reverse and remand for a new trial.
this case turns on legal issues, we will present only a brief
summary of the facts based upon plaintiff's evidence.
Plaintiff was employed by defendant as a police officer for
the Town of Sylva. He was supervised by the Chief of Police
Davis Woodard; Chief Woodard was under the supervision of the
Town Manager, Paige Roberson Dowling. On 17 February 2014,
plaintiff filed to run for Jackson County Sheriff, as a
Republican. Plaintiff claims that Chief Woodard ridiculed him
for running for sheriff and took other adverse actions
against him for this reason. On 3 March 2014, Chief Woodard
called plaintiff in to meet with him, the Town Manager, and
an assistant chief and then demanded that plaintiff resign
his position as a police officer. He refused, so Chief
Woodard fired him. When he asked why, Chief Woodard and the
Town Manager claimed to have received complaints about him,
although plaintiff had never been informed of any complaints.
Plaintiff then inquired about his personnel file and found it
contained no complaints, reprimands, or counseling
notifications, other than one undated and unsigned memo
purportedly from a detective regarding a traffic checkpoint
conducted in November 2013. Plaintiff sought to appeal his
termination with the Town of Sylva, but the Town Manager
affirmed the termination and told him that the decision was
the absence of any complaints or disciplinary action in his
personnel file, after plaintiff applied to receive
unemployment benefits, defendant provided information to the
North Carolina Employment Security Commission stating that
plaintiff was terminated for excessive absenteeism and
claimed that he had been warned about this, although his
personnel file included no such warnings and showed that
plaintiff's only absences had been for illness and the
birth of his child -- all approved by defendant under the
Town's usual policies for sick leave.
filed a complaint against defendant on 2 March 2015, alleging
claims under 42 U.S.C. § 1983 based upon defendant's
violations of his state and federal constitutional rights to
free speech and association and for his wrongful termination
in violation of North Carolina public policy as expressed in
N.C. Gen. Stat. § 160A-169, since he was fired based
upon his political activity or beliefs. Plaintiff also
alleged that defendant had purchased liability insurance
coverage for employment cases and had waived any defendant of
"sovereign immunity to the extent of coverage under the
April 2015, defendant filed its answer, which admitted a few
allegations of the complaint and denied the others. The
answer alleged that plaintiff's employment was at will
and could be terminated at the will of the defendant, without
regard to his performance. But the answer is most notable
here for the total absence of any affirmative defenses,
particularly any claim of any sort of governmental immunity.
According to the record before this Court, defendant filed no
motion to dismiss and never moved for summary judgment. The
complaint, defendant's acceptance of service, and answer
were the only documents filed in the case until the jury
claims came on for a jury trial on 23 May 2016, with the jury
impaneled on 24 May 2016. On 25 May 2016, at the close of
plaintiff's evidence, defendant filed a written motion
for directed verdict "pursuant to Rule 50, Rule 12(b)(6)
and Rule 12(b)(7) of the North Carolina Rules of Civil
Procedure." Defendant made four arguments for directed
verdict, which we will summarize briefly:
(1) The doctrine of respondeat superior does not apply to
plaintiff's claims under 42 U.S.C. § 1983 or
termination in violation of public policy, because "the
Town itself must have a custom or policy that is in violation
of the law" and the Town had no policy that a "Town
employee could not run for political office."
(2) Under Rule 12(b)(6), plaintiff's complaint failed to
state a claim upon which relief could be granted due to the
lack of a "pattern, practice, custom or usage" in
violation of his constitutional rights.
(3) Under Rule 12(b)7), "Town Officials" made the
decisions plaintiff alleges are in violation of his rights
and they were not made parties.
(4) Plaintiff's evidence is too "speculative"
to "rebut the Employment at Will presumption."
again, defendant did not mention any claim of governmental
immunity in its written motion for directed verdict or in
argument to the trial court. The trial court granted
defendant's motion for directed verdict. We have had
difficulty discerning why, although the trial court's
order essentially tracks defendant's motion. The order
[I]t appearing that after the Plaintiff had presented all of
Plaintiff's evidence to the jury and Plaintiff had
rested, the Defendant moved to dismiss the Plaintiff's
case. Based upon the pleadings, facts and arguments of
counsel, viewed in the light most favorable to the Plaintiff,
the Court finds that Plaintiff has shown no lawful claim, and
that Defendant's motion should be granted pursuant Rules
l2(b)6, 12(b)7 and Rule 50 of the North Carolina Rules of
seeking to understand this order, we have also considered the
trial court's comments to the jury upon granting directed
verdict. He stated:
Members of the jury, I appreciate your attention to this case
so far, but at the end of the plaintiff's evidence
I've dismissed the lawsuit, so there will be nothing for
you to hear. I want to explain why I did that because I --
well, you're probably wondering about it and you're
entitled to an explanation.
first addressed the § 1983 claims:
[For] the Town of Sylva commissioners -- to be responsible
for what their employees do that the plaintiff alleges was
wrong, the commissioners either had to have a custom or
policy that allowed it or directed it, they had to know it
was happening -- these are alternatives -- or they had to
know it was happening and did nothing about it, maybe a
reckless indifference type standard, or perhaps they failed
to adequately train their employees and that's why it was
happening, but just because a municipal employee allegedly
violated someone's rights under that federal statute does
not make the town liable, and I think you understand what
I've heard -- perhaps there's been some testimony
about some communication from a commissioner, but I
didn't hear any evidence that the commissioners were ...