Lopp v. Anderson

• Decision Date: 20 December 2016
• Docket Number: No. COA16-111,No. COA16-112,COA16-111,COA16-112
• Citation: 251 N.C.App. 161,795 S.E.2d 770
• Parties: Frederick Samuel LOPP, Plaintiff, v. Joel ANDERSON, Individually and in his Official Capacity; Kent Winstead, Sheriff of Franklin County, in his Official Capacity; Franklin County; Garrett Stanley, Individually and in his Official Capacity; Andy Castaneda, Individually and in his Official Capacity; Sherri Brinkley, Individually and in her Official Capacity; Louisburg Police Department; and The Town of Louisburg, Defendants. Roddie McKinley Lopp, Plaintiff, v. Joel Anderson, Individually and in His Official Capacity; Kent Winstead, Sheriff of Franklin County, in his Official Capacity; Franklin County; Garrett Stanley, Individually and in His Official Capacity; Andy Castaneda, Individually and in his Official Capacity; Sherri Brinkley, Individually and in Her Official Capacity; Louisburg Police Department; and The Town of Louisburg, Defendants.
• Court: North Carolina Court of Appeals

251 N.C.App. 161

795 S.E.2d 770

Frederick Samuel LOPP, Plaintiff,

v.Joel ANDERSON, Individually and in his Official Capacity; Kent Winstead, Sheriff of Franklin County, in his Official Capacity; Franklin County; Garrett Stanley, Individually and in his Official Capacity; Andy Castaneda, Individually and in his Official Capacity; Sherri Brinkley, Individually and in her Official Capacity; Louisburg Police Department; and The Town of Louisburg, Defendants.

Roddie McKinley Lopp, Plaintiff,

v.Joel Anderson, Individually and in His Official Capacity; Kent Winstead, Sheriff of Franklin County, in his Official Capacity; Franklin County; Garrett Stanley, Individually and in His Official Capacity; Andy Castaneda, Individually and in his Official Capacity; Sherri Brinkley, Individually and in Her Official Capacity; Louisburg Police Department; and The Town of Louisburg, Defendants.

No. COA16-111

No. COA16-112

Court of Appeals of North Carolina.

Filed: December 20, 2016

Stainback, Satterwhite & Zollicoffer, PLLC, by Paul J. Stainback, for Plaintiffs-Appellants.

Womble Carlyle Sandridge & Rice, LLP, by Christopher J. Geis, for Defendants-Appellees Joel Anderson, Sheriff Kent Winstead, and Franklin County.

Pinto Coates Kyre & Bowers, PLLC, by Richard L. Pinto and Andrew G. Pinto, for Defendants-Appellees Garrett Stanley, Andy Castaneda, Sherri Brinkley, Louisburg Police Department, and Town of Louisburg.

McGEE, Chief Judge.

I. Facts

The events relevant to this appeal occurred on 28 June 2009. On that date, Roddie McKinley Lopp ("Roddie") lived with his parents, Mary Lopp and Frederick Samuel Lopp ("Frederick") (Frederick together with Roddie, "Plaintiffs") in Louisburg. Roddie had two young children ("the children"), whose mother was Jodie Braddy ("Jodie"). Roddie and Jodie never married, and Jodie subsequently married Doug Braddy ("Doug"). On 28 June 2009, Roddie and Jodie shared custody of the children under the terms of a custody order. Pursuant to this custody order, Roddie was to deliver the children to Jodie by 6:00 p.m. on 28 June 2009. Deviation from established transfer times could only be made by the "mutual consent" of Roddie and Jodie. Roddie contends his attorney spoke with Jodie's attorney prior to 28 June 2009, and an agreement was reached whereby Roddie would keep the children past 28 June 2009 to make up for times when Jodie had kept the children during Roddie's custodial periods. The record includes nothing beyond Roddie's testimony and affidavit supporting the existence of this agreement.

According to Jodie, after Roddie failed to appear by 6:00 p.m. on 28 June 2009, Jodie decided to drive to the Louisburg Police Department for assistance in retrieving the children. Jodie brought the custody order with her, which she showed to police officers. Jodi asked for assistance from the officers because she was worried that Roddie "could possibly get violent because [she and Roddie] had had such a physical history." Jodie also informed the officers that Roddie kept firearms in his house. After speaking with the on-duty magistrate, an officer informed Jodie that the Louisburg police would assist her.

Officers Garrett Stanly¹ ("Officer Stanly"), Andy Castaneda ("Officer Castaneda"), and Sherri Brinkley ("Officer Brinkley") were in the parking lot of the police station preparing to leave for Plaintiffs’ house when Deputy Joel Anderson ("Deputy Anderson") of the Franklin County Sheriff's Department (Deputy Anderson, along with the above three officers "Defendant Officers"), passed by and agreed to join them. Defendant Officers headed to Plaintiffs’ house, and Jodie and Doug followed in their own automobile.

The following is Roddie's account of the events that occurred at his home on 28 June 2009. Defendant Officers approached Roddie in his yard and "proceeded to confront him and insisted upon the return of the children to Jodi[e.]" Roddie told Defendant Officers that he wanted to call his attorney so his attorney could explain that an agreement had been reached allowing Roddie to keep the children for some extra period of time. According to Roddie's deposition testimony, he told Defendant Officers: " ‘Well, I'm going to go in and call ... my attorney and then get a copy of the consent order and show you.’ " Roddie testified: "There was [sic] no words after that. All four of them took me down, beat me, kicked me, assaulted me." Roddie testified that he had done nothing to provoke Defendant Officers, and that all four Defendant Officers "assaulted" him. Roddie testified that all four Defendant Officers punched and kicked him as he was lying on the ground and already handcuffed. Roddie further testified that he believed Deputy Anderson attempted to shock him with a stun gun as Roddie was "getting into the [police] car[,]" even though he was not resisting. According to Roddie, Deputy Anderson placed his stun gun on him, and he felt a small "jolt," but "not like what I'm used to seeing on TV[.]" Roddie believed the stun gun didn't "work[ ] completely right."

Concerning the treatment of Frederick, Roddie testified that, after he had been helped off the ground, he "looked back and [Frederick] was down" on the ground. Roddie testified that Officer Stanly and Deputy Anderson "were roughing [Frederick] up and cuffing him." Roddie further testified that by "roughing up" he meant Officer Stanly and Deputy Anderson were punching Frederick in the face and upper body. In an affidavit, Roddie stated:

[A]s I was led away and taken to the police vehicle I saw my father, Frederick Lopp, who was then 83 years of age, thrown to the ground and assaulted in much the same manner as me, and he [had] to be taken to the hospital later that same night.

In his verified complaint, Frederick alleged that when he "saw his son ... being wrongfully harmed and assaulted by" Defendant Officers, he asked Defendant Officers if they had a warrant and told Defendant Officers they had no right to be there. Frederick then walked toward Roddie and Defendant Officers, "but [Frederick] was thereafter thrown to the ground by [Defendant Officers]" and "beaten, handcuffed and generally assaulted[.]" Defendants have included in the record testimony and affidavits contradicting Plaintiffs’ recitation of the events.

Plaintiffs filed complaints on 22 April 2014 alleging assault and battery, false imprisonment, and malicious prosecution against Defendant Officers, in both their official and individual capacities; and against Defendants Franklin County, the Town of Louisburg, the Louisburg Police Department, and Jerry Jones, as Sheriff of Franklin County, in both his official and individual capacity. By consent order entered 1 June 2015, Jerry Jones was dismissed as a Defendant in this matter, and Kent Winstead was substituted as a Defendant for Jerry Jones, solely in his official capacity as Sheriff of Franklin County. Defendants moved for summary judgment by motions filed 14 September 2015 and 16 September 2015.

Defendants argued that Defendant Officers, acting in their individual capacities, were entitled to public official immunity; and that the municipal Defendants, along with the individual Defendants acting in their official capacities, were protected from suit by governmental immunity. The trial court granted summary judgment in favor of all Defendants by orders entered 3 November 2015. Plaintiffs appeal.

II. Analysis

In Plaintiffs’ sole arguments on appeal they contend that the trial court erred in allowing Defendants’ motions for summary judgment "based upon issues of sovereign immunity and public officer immunity." We agree in part and disagree in part.

"Our standard of review of a trial court's order granting or denying summary judgment is de novo. Under a de novo review, the [C]ourt considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." Bryson v. Coastal Plain League, LLC , 221 N.C.App. 654, 656, 729 S.E.2d 107, 109 (2012) (citations and quotation marks omitted).

"On appeal from summary judgment, the applicable standard of review is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. "[W]e review the record in a light most favorable to the party against whom the order has been entered to determine whether there exists a genuine issue as to any material fact."

Smith v. Harris , 181 N.C.App. 585, 587, 640 S.E.2d 436, 438 (2007) (citations omitted). However, this Court will only consider those arguments properly set forth in an appellant's brief. Bryson , 221 N.C.App. at 655, 729 S.E.2d at 108.

A. Sovereign Immunity

The trial court granted summary judgment in favor of the municipal Defendants and the individual Defendants in their official capacities based upon sovereign immunity. The trial court based its orders granting summary judgment on the following:²

1. Defendants Joel Anderson, Sheriff Kent Winstead, Garrett Stanley, Andy Castaneda, and Sherri a/k/a Shari Brinkley, in their official capacities, by reason of sovereign and/or governmental immunity, because there was no liability insurance providing indemnity coverage because the only policy of insurance for Franklin County and the only policy of insurance for the Town of Louisburg for the time in question did not provide liability coverage for the alleged actions of Defendants Anderson, Winstead, Stanley, Castaneda, and Brinkley against Plaintiff.

2. Franklin County and the Town of Louisburg are entitled to sovereign and/or governmental immunity because the only policy of insurance for Franklin County and the only

...