Lambert v. Town of Sylva

• Decision Date: 01 May 2018
• Docket Number: No. COA17-84,COA17-84
• Citation: 816 S.E.2d 187,259 N.C.App. 294
• Court: North Carolina Court of Appeals
• Parties: Curtis LAMBERT, Plaintiff, v. TOWN OF SYLVA, Defendant.

259 N.C.App. 294

816 S.E.2d 187

Curtis LAMBERT, Plaintiff,

v.TOWN OF SYLVA, Defendant.

No. COA17-84

Court of Appeals of North Carolina.

Filed: May 1, 2018

David A. Sawyer, Bryson City, for plaintiff-appellant.

Ridenour & Goss, P.A., by Eric Ridenour, Sylva, and Jeffrey Goss, for defendant-appellee.

STROUD, Judge.

Plaintiff 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.

I. Facts

Because 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 final.

Despite 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.

Plaintiff 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 defense of "sovereign immunity to the extent of coverage under the policy."

On 7 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 trial started.

Plaintiff's 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."

Once 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 says:

[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 12(b) 6, 12(b)7 and Rule 50 of the North Carolina Rules of Civil Procedure.

In 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.

He 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'm saying.

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 the moving force behind any of this.

Now maybe employees, if you believe the plaintiff's evidence, were, but not the commissioners themselves, and that's why I dismissed the federal claims.

He then addressed the claim for wrongful discharge:

Well, North Carolina law makes it clear you can't fire someone because of political things they do when they're not at work; that's wrong.

But you've also heard of sovereign immunity. You've heard of the cases where a—for example, a state employee was driving a truck during his business and he hit somebody and hurts them. So that person says, "I'm going to sue the state." And perhaps you've heard about those cases where that lawsuit was thrown out because the judge says, "You cannot sue the state without their permission."

I remember I read some of those cases and I thought, well, that's kind of unfair. Well, it depends on who hits you, who runs over you, whether you get money back or not for your damages. And there's an exception for that. If the state or municipality has purchased liability insurance, then those lawsuits can proceed. But there's been no evidence about liability insurance in this case.

So that doctrine goes back to the common law and the law concerning the King of England. You couldn't sue the king without his permission. And there's all kinds of exceptions. I know you want me to go into them, but I won't.

Plaintiff timely filed a notice of appeal from the trial court's order granting directed verdict.

II. Analysis

a. Standard of review

The order on appeal was entered after presentation of the plaintiff's evidence at trial and is based upon Rule 50, despite its reference to Rules (12)(b)(6) and (7), so we must consider all of the evidence presented at trial in the light most favorable to plaintiff.

The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, or to present a question for the jury.

Davis v. Dennis Lilly Co. , 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (citations omitted).

In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the non-movant's claim must be taken as true and considered in the light most favorable to the non-movant, giving the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the non-movant's favor.

Turner v. Duke University , 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989). If the plaintiff has...