Wind v. City of Gastonia

• Decision Date: 19 March 2013
• Docket Number: No. COA12–421.,COA12–421.
• Citation: 738 S.E.2d 780
• Parties: David B. WIND, Plaintiff, v. The CITY OF GASTONIA, North Carolina, A Municipal Corporation, Defendant.
• Court: North Carolina Court of Appeals

738 S.E.2d 780

David B. WIND, Plaintiff,

v.The CITY OF GASTONIA, North Carolina, A Municipal Corporation, Defendant.

No. COA12–421.

Court of Appeals of North Carolina.

March 19, 2013.

Appeal by defendant from order entered 1 November 2011 by Judge Forrest Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 7 January 2013.

The McGuinness Law Firm, by J. Michael McGuinness, for plaintiff-appellee.

Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham–Hinch, Patrick H. Flanagan, and Bradley P. Kline, for defendant-appellant.

North Carolina State Lodge of the Fraternal Order of Police, by Richard L. Hattendorf, amicus curiae.

MARTIN, Chief Judge.

Defendant City of Gastonia appeals from the trial court's order granting plaintiff David B. Wind's motion for summary judgment, denying defendant's cross-motion for summary judgment, and ordering that defendant disclose to plaintiff unredacted copies of all documents contained in the City of Gastonia Police Department's Internal Affairs Investigative Case Files 2008–265 and 2008–307. We affirm and remand for further proceedings.

According to the record before us, plaintiff joined the Gastonia Police Department in March 2008 as a patrolman, after serving as a detention enforcement officer for the United States Immigration and Naturalization Service, and as an officer and detective with the Coral Springs Police Department in Florida. In the Fall of 2008, two complaints were made against plaintiff and reported to the Gastonia Police Department; one by a citizen, and one by a police officer. The citizen's complaint, which was designated as Internal Affairs (“IA”) Investigative Case File 2008–307, alleged that plaintiff exhibited “Rudeness/Force by Firearm” after plaintiff disarmed the citizen and secured the citizen's firearm while plaintiff conducted an investigation. The officer's complaint, which had been designated as IA Investigative Case File 2008–265, alleged that plaintiff exhibited “Conduct Unbecoming of an Officer” and challenged plaintiff's “Integrity” and “Truthfulness” after the complainant charged that plaintiff falsified grounds for probable cause in order to make an arrest at a traffic stop. The citizen's complaint was investigated by plaintiff's supervisor, while the officer's complaint was investigated by Gastonia Police Department's Office of Professional Standards Unit, formerly its IA Unit.

Gastonia Police Department's Chief of Police Timothy Lee Adams was provided with all of the information collected upon the conclusion of both investigations in order to “adjudicate[ ] the case[s]” and make his final decisions with respect to each complaint. With respect to the citizen's complaint, the allegations “were determined to be NOT SUSTAINED” and the case was “closed.” With respect to the officer's complaint, the allegations were determined to be “unfounded by the Chief [of Police]” and the case was designated as “closed, no further action required.”

In February 2009, after the cases were deemed closed, plaintiff sent a written memorandum to Chief Adams requesting an opportunity to view the complete investigative files associated with the complaints, and met with Chief Adams in person shortly thereafter to request the same. Plaintiff asserts that Chief Adams refused his request to inspect the complete contents of the files. While the record indicates that Chief Adams did provide documents from these files to plaintiff—albeit two years after plaintiff's initial request—the documents provided to plaintiff were significantly redacted. Defense counsel represented to the trial court that the redactions concealed only the identity of the complainants and such information as would enable someone to identify them.

Plaintiff filed his Complaint and First Amended Complaint against defendant City of Gastonia (“Gastonia”) in February 2010, alleging that Gastonia violated N.C.G.S. § 160A–168, the North Carolina Constitution, and Gastonia's own “rules, regulations, policies and procedures” by “refusing to disclose [to plaintiff] the requested documents” comprising IA Investigative Case Files 2008–307 and 2008–265. Plaintiff and Gastonia filed cross-motions for summary judgment, which were heard on 24 October 2011. On 1 November 2011, the trial court entered an order granting plaintiff's motion for summary judgment, denying Gastonia's motion for summary judgment, and retaining for trial “[t]he issue of any damages from the denial of the records....” The court further ordered that plaintiff “is entitled to complete copies of the documents contained in [IA] Files 2008–265 and 2008–307 without any redacted information,” and ordered that Gastonia “disclose these documents to [plaintiff].” Gastonia appealed to this Court, and the trial court entered a consent order staying “all further trial court level proceedings in this matter” until the conclusion of this appeal.

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“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999), on remand,137 N.C.App. 82, 527 S.E.2d 75 (2000); see also id. (“Interlocutory orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.” (internal quotation marks omitted)). However, “[n]otwithstanding this cardinal tenet of appellate practice, immediate appeal ... is available from an interlocutory order or judgment which affects a substantial right.” Sharpe, 351 N.C. at 161–62, 522 S.E.2d at 579 (citations and internal quotation marks omitted); see alsoN.C. Gen.Stat. § 1–277(a) (2011); N.C. Gen.Stat. § 7A–27(d)(1) (2011). “It is well settled that an interlocutory order affects a substantial right if the order deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered.” Sharpe, 351 N.C. at 162, 522 S.E.2d at 579 (alteration in original) (internal quotation marks omitted).

Here, Gastonia concedes that the present appeal is interlocutory. However, Gastonia argues that such appeal is properly before this Court for immediate review because the trial court's order affects a substantial right “that would be forever lost by [Gastonia] if the matter proceeded[ ] by having to turn over documents which [Gastonia] claims are statutorily privileged.” We recognize that “if [Gastonia] is required to disclose the very documents that it alleges are protected from disclosure by the statutory privilege, then a right materially affecting those interests which a [person] is entitled to have preserved and protected by law—a substantial right—is affected,” and “the substantial right asserted by [Gastonia] will be lost if the trial court's order is not reviewed before entry of a final judgment.” See id. at 164–65, 522 S.E.2d at 580–81 (second alteration in original) (internal quotation marks omitted). Thus, because the trial court's interlocutory order compels production of files which may be privileged pursuant to N.C.G.S. § 160A–168, we conclude that the trial court's order affects a substantial right and is immediately appealable to this Court. See Hayes v. Premier Living, Inc., 181 N.C.App. 747, 751, 641 S.E.2d 316, 318 (2007). We further conclude, since the sole argument advanced by the parties regarding the grounds for immediate appellate review is Gastonia's argument that protecting the requested files from disclosure affects a substantial right pursuant to a statutory privilege arising under N.C.G.S. § 160A–168, only the issues of whether N.C.G.S. § 160A–168 requires Gastonia to disclose the requested files to plaintiff, and whether Gastonia is statutorily exempt from the requirement, if any, to disclose the same, are properly before us.

Gastonia first argues that it did not violate N.C.G.S. § 160A–168 by denying plaintiff's request to inspect the documents at issue, because the documents requested fall within a subsection of the statute, N.C.G.S. § 160A–168(c1)(4), which, according to Gastonia's argument, exempts it from any disclosure obligations arising under the other subsections of the statute. “Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990); see also Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (“Nothing else appearing, the Legislature is presumed to have used the words of a statute to convey their natural and ordinary meaning.” (internal quotation marks omitted)). “[H]owever, where a statute is ambiguous or unclear as to its meaning, we must interpret the statute to give effect to the legislative intent.” N.C. Dep't of Revenue v. Hudson, 196 N.C.App. 765, 767, 675 S.E.2d 709, 711 (2009). Additionally, “[w]ords and phrases of a statute may not be interpreted out of context, but individual expressions must be construed as a part of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.” In re Hardy, 294 N.C. 90, 95–96, 240 S.E.2d 367, 371–72 (1978) (internal quotation marks omitted).

According to N.C.G.S. § 160A–168(a), employee personnel files “maintained by a city are subject to inspection and may be disclosed only as provided by [N.C.G.S. § 160A–168].” N.C. Gen.Stat. § 160A–168(a) (2011). “[A]n employee's personnel file” “consists of any information in any form gathered by the city with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and...