Doe v. City of Charlotte, No. COA19-497

Docket NºNo. COA19-497
Citation848 S.E.2d 1
Case DateAugust 18, 2020
CourtCourt of Appeal of North Carolina (US)

848 S.E.2d 1

Jane DOE and John Doe, Plaintiffs,
v.
CITY OF CHARLOTTE and G.M. Smith, officially and individually, Defendants.

No. COA19-497

Court of Appeals of North Carolina.

Filed: August 18, 2020


Tin, Fulton, Walker & Owen, PLLC, Charlotte, by S. Luke Largess, for plaintiffs-appellants.

Parker Poe Adams & Bernstein LLP, Charlotte, by Daniel E. Peterson, for defendant-appellee City of Charlotte.

Law Offices of Lori Keeton, by Lori R. Keeton, for defendant-appellee G.M. Smith.

DIETZ, Judge.

Plaintiff Jane Doe got lost while driving her children to a birthday party. She stopped in a parking lot, hopped out of her car, and asked someone nearby for directions. Witnesses said Doe was gone from her car somewhere between one and two minutes.

During that time, Captain G.M. Smith, a law enforcement officer, arrived. According to Doe's evidence, Captain Smith was inexplicably angry and hostile towards Doe for leaving her children in an unattended car. Captain Smith ignored other officers who said Doe had done nothing wrong and ultimately charged Doe with misdemeanor child abuse.

After the State dropped the charges and the police department reprimanded Captain Smith, Doe and her husband sued Smith and his employer, the City of Charlotte. The trial court dismissed a number of their claims based on public official immunity, finding that there was insufficient evidence that Captain Smith acted with malice.

A central issue in this appeal is our authority to hear it at all. As explained below, Plaintiffs made a series of avoidable mistakes that deprived this Court of jurisdiction to hear the case—their appeal was untimely; their Rule 54(b) certification was defective; their statement of the grounds for appellate review is inadequate; and instead of petitioning for a writ of certiorari, they requested that this Court "treat this appeal as writ for certiorari." Nevertheless, because this case raises important issues and Plaintiffs have a meritorious argument, we exercise our discretion to issue a writ of certiorari and address the merits of this appeal.

Reaching the merits, we reverse. Plaintiffs’ evidence, viewed in their favor, is sufficient to create a genuine issue of material fact on the issue of malice. We acknowledge that Defendants have their own evidence indicating that Captain Smith acted properly and without malice. But this Court cannot choose between that competing evidence—a jury must do that. Accordingly, we reverse the trial court's grant of summary judgment and remand for further proceedings.

848 S.E.2d 5

Facts and Procedural History

The following recitation of facts represents Plaintiffs’ version of events, viewed in the light most favorable to them. As the non-movants at the summary judgment stage, Plaintiffs are entitled to have disputed facts resolved in their favor during our appellate review. See Dobson v. Harris , 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). We note that Defendants have their own evidence and witness testimony disputing many of these facts. Under the applicable standard of review, we must ignore Defendants’ competing evidence at this stage in the case. Id.

Plaintiff Jane Doe1 got lost while driving her young children to a birthday party inside a large nature preserve in Mecklenburg County. Realizing that she must have missed a turn, Doe pulled into a parking area, hopped out of her car, and asked a nearby park employee for directions. Two Charlotte-Mecklenburg Police Department officers, Aaron Deroba and David Gathings, were on patrol duty in the park and saw Doe drive up, exit her car, and walk toward a wooden fence to ask a park employee for directions.

Doe left her children unattended in her car while she asked for directions. According to a park employee who witnessed these events, it took about sixty seconds for Doe to walk to the fence, get directions, and jog back to her car.

As Doe returned to her car, another Charlotte-Mecklenburg Police Department officer, Captain G.M. Smith,2 drove into the parking area in his patrol car and saw Doe's children unattended in her car. He then signaled for Officers Deroba and Gathings to come to him. According to Officer Gathings, no more than two minutes passed from the time they saw Doe leave her car to ask for directions and the time they responded to Captain Smith.

As Doe approached her car, Captain Smith ordered her to stop. Captain Smith was visibly angry and confronted Doe for leaving her children unattended in a car with the windows rolled up. Doe explained that she had only been gone for a moment and opened the driver's door to demonstrate that the car was still cool. Captain Smith briefly stuck his arm inside the car and responded, "No, it's not."

Captain Smith then informed Doe that he was charging her with child abuse. Both Officer Gathings and Officer Deroba told Captain Smith that they had observed Doe and that she had not left her children in the car for a dangerous amount of time. Captain Smith responded, "That doesn't matter." Captain Smith was "angry" and "aggressive" and he "bullied" the other officers on the scene throughout the encounter.

According to an internal police department investigation, Officers Gathings and Deroba spoke outside Captain Smith's presence and agreed that there was no probable cause to arrest Doe. Doe also asked the officers "why Captain Smith was being so mean to her" and Officer Deroba responded that "he did not know why."

Ultimately, Captain Smith instructed Officer Gathings to issue Doe a citation for misdemeanor child abuse. Both Officer Deroba and Officer Gathings believed that Doe had not done anything wrong and told Captain Smith that they did not think there was probable cause to issue a citation. The officers later reported to departmental investigators that "Captain Smith overreacted and wasn't being objective or listening to what we observed." Officer Deroba told investigators, "It didn't seem like Captain Smith wanted to listen to anything I had to say." Because Officer Gathings felt bound to obey a superior officer, he issued Doe the citation for misdemeanor child abuse.

In December 2014, the State dismissed the criminal case against Doe. In 2015, following an investigation, Captain Smith received a written reprimand from the Charlotte-Mecklenburg Police Department for making an arrest that Smith knew, or should have

848 S.E.2d 6

known, was not in accordance with the law or department procedure.

In 2017, Jane Doe and her husband John Doe filed a complaint against Captain Smith in his individual and official capacities and against the City of Charlotte, his employer, alleging claims for negligence, loss of consortium, false imprisonment, malicious prosecution, and claims under 42 U.S.C. § 1983.

Defendants later moved for summary judgment. On 15 January 2019, the trial court entered partial summary judgment, dismissing all claims in the complaint except the Section 1983 claim against Smith.

Plaintiffs then filed a "Motion to Reconsider," citing Rule 59 of the Rules of Civil Procedure. On 4 February 2019, the trial court denied the motion. Several weeks after the trial court denied Plaintiffs’ motion to reconsider, Plaintiffs moved to certify the original summary judgment order for immediate appeal pursuant to Rule 54(b) of the Rules of Civil Procedure.

On 1 March 2019, the trial court entered a stand-alone order granting Plaintiffs’ motion and stating that the trial court "hereby certifies that its Summary Judgment Order is a final judgment as to all claims against the City of Charlotte and as to the state law claims against Defendant Smith, and that there is no just reason for delay in entering that final judgment."

That same day, 1 March 2019, Plaintiffs appealed the trial court's 15 January 2019 summary judgment order, based on the newly entered Rule 54(b) certification. Plaintiffs’ notice of appeal states that it is an appeal from "that Order granting partial Summary Judgment as to less than all claims and less than all parties in this action." The notice of appeal does not mention the 4 February 2019 denial of the motion to reconsider.

Analysis

I. Appellate Jurisdiction

We begin our analysis by addressing Defendants’ challenge to this Court's jurisdiction. As explained below, Plaintiffs made a series of avoidable mistakes that deprived this Court of jurisdiction to reach the merits of the appeal. Although this Court frequently excuses ordinary, non-jurisdictional rules violations by litigants, jurisdictional defects are different. This Court cannot excuse a jurisdictional mistake; that mistake "precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co. , 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Because jurisdictional defects compel such severe consequences, we discuss the mistakes that occurred here for the benefit of the parties in this case and for future litigants.

A. Improper use of Rule 59(e) motion to alter or amend a judgment

We begin with Defendants’ argument that this appeal is untimely. "A timely notice of appeal is required to confer jurisdiction upon this Court." Raymond...

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14 practice notes
  • R.A. v. Johnson, 21-1972
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 7, 2022
    ...be sufficient by virtue of its reasonableness, not by mere supposition.’ " Id. (quoting Doe v. City of Charlotte , 273 N.C. App. 10, 24, 848 S.E.2d 1 (2020) ).R.A. has not alleged any facts as to the third element of malice: intent. Nowhere has R.A. asserted that the school officials had an......
  • Knibbs v. Momphard, 20-2243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 30, 2022
    ...of malice "must be sufficient by virtue of its reasonableness, not by mere supposition." Doe v. City of Charlotte , 273 N.C.App. 10, 848 S.E.2d 1, 12 (2020) (quoting Strickland v. Hedrick , 194 N.C.App. 1, 669 S.E.2d 61, 68 (2008) ).Deputy Momphard argues that he could not have acted malici......
  • Butterfield v. Haylee Gray, RN, S. Health Partners, Inc., COA20-218
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...appellate review on the ground that the challenged order affects a substantial right.’ " Doe v. City of Charlotte , 273 N.C. App. 10, 21, 848 S.E.2d 1, 9 (2020) (quoting Denney v. Wardson Constr., Inc. , 264 N.C. App. 15, 17, 824 S.E.2d 436, 438 (2019) ); see also N.C. R. App. P. 28(b)(4). ......
  • Butterfield v. Gray, COA20-218
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...appellate review on the ground that the challenged order affects a substantial right.'" Doe v. City of Charlotte, 273 N.C.App. 10, 21, 848 S.E.2d 1, 9 (2020) (quoting Denney v. Wardson Constr., Inc., 264 N.C.App. 15, 17, 824 S.E.2d 436, 438 (2019)); see also N.C. R. App. P. 28(b)(4). The ap......
  • Request a trial to view additional results
14 cases
  • R.A. v. Johnson, 21-1972
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 7, 2022
    ...be sufficient by virtue of its reasonableness, not by mere supposition.’ " Id. (quoting Doe v. City of Charlotte , 273 N.C. App. 10, 24, 848 S.E.2d 1 (2020) ).R.A. has not alleged any facts as to the third element of malice: intent. Nowhere has R.A. asserted that the school officials had an......
  • Knibbs v. Momphard, 20-2243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 30, 2022
    ...of malice "must be sufficient by virtue of its reasonableness, not by mere supposition." Doe v. City of Charlotte , 273 N.C.App. 10, 848 S.E.2d 1, 12 (2020) (quoting Strickland v. Hedrick , 194 N.C.App. 1, 669 S.E.2d 61, 68 (2008) ).Deputy Momphard argues that he could not have acted malici......
  • Butterfield v. Haylee Gray, RN, S. Health Partners, Inc., COA20-218
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...appellate review on the ground that the challenged order affects a substantial right.’ " Doe v. City of Charlotte , 273 N.C. App. 10, 21, 848 S.E.2d 1, 9 (2020) (quoting Denney v. Wardson Constr., Inc. , 264 N.C. App. 15, 17, 824 S.E.2d 436, 438 (2019) ); see also N.C. R. App. P. 28(b)(4). ......
  • Butterfield v. Gray, COA20-218
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...appellate review on the ground that the challenged order affects a substantial right.'" Doe v. City of Charlotte, 273 N.C.App. 10, 21, 848 S.E.2d 1, 9 (2020) (quoting Denney v. Wardson Constr., Inc., 264 N.C.App. 15, 17, 824 S.E.2d 436, 438 (2019)); see also N.C. R. App. P. 28(b)(4). The ap......
  • Request a trial to view additional results

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