Blakeley v. The Town of Taylortown

NO. COA13-853
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
TIMOTHY BLAKELEY,
Plaintiff,
v. Moore County
No. 10 CVS 250
THE TOWN OF TAYLORTOWN, NORTH
CAROLINA; a municipal corporation,
Defendant.
Appeal by defendant from order entered 16 March 2012 by
Judge James M. Webb in Moore County Superior Court. Heard in
the Court of Appeals 5 February 2014.
The McGuinness Law Firm, by J. Michael McGuinness, and John
W. Roebuck for plaintiff-appellee.
Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., and
Patrick H. Flanagan for defendant-appellant.
Amicus curiae brief submitted by Narron, O’Hale and
Whittington, P.A., by John P. O’Hale, for the Southern
States Police Benevolent Association and the North Carolina
Police Benevolent Association.
HUNTER, Robert C., Judge.
Defendant the Town of Taylortown (“the Town” or
“defendant”) appeals the order denying its motion for judgment
notwithstanding the verdict or, in the alternative, for
amendment of the judgment and/or a new trial. After careful
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review, we reverse the order denying defendant’s motion to amend
the verdict and remand for the trial court to reduce the jury’s
verdict by $5,886.97. As to all other bases for defendant’s
motions, we find no error.
Background
This action arises out of the termination of plaintiff
Timothy Blakeley (“plaintiff” of “Chief Blakeley”) from his at-
will employment as the Chief of Police for the Town. Plaintiff
was hired in 2003. In 2004, a dispute arose between plaintiff
and the mayor of Taylortown, Ulysses S.G. Barrett, Jr., (“Mayor
Barrett”) regarding the Town’s use of a Cushman ATV (“the ATV”)
on the streets and highways in the Town. Plaintiff had observed
the vehicle being operated by a Town employee on the public
streets and highways. After doing some research, plaintiff
determined that the ATV was not being operated in a lawful
manner. Plaintiff presented his findings to the Town Council
sometime in August 2004. Plaintiff claims that he was told at
the August meeting by Mayor Barrett to not concern himself with
the ATV. After the meeting, plaintiff obtained more information
and called Mayor Barrett up directly to discuss it. Plaintiff
brought the information to Mayor Barrett’s home. The next day,
plaintiff received a “write-up” for failing to follow the chain
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of command. Specifically, plaintiff was written up for failing
to first notify James Thompson, the Police Commissioner, before
contacting Mayor Barrett. After this, members of the Town
Council noticed an increased tension between plaintiff and Mayor
Barrett.
In 2006, plaintiff was contacted by the North Carolina
State Bureau of Investigation (“the SBI”) concerning alleged
corruption by the Taylortown Board. Eventually, as a result of
this investigation, Mayor Barrett was charged with illegally
benefiting from a public contract; these charges were later
dropped. During the SBI investigation, sometime in August 2006,
plaintiff informed the Town Council that he was involved in the
investigation after he received permission from an SBI agent to
do so. Plaintiff alleged that after he informed the Town
Council about his involvement in the investigation, his
professional relationship with Mayor Barrett and certain members
of the Town Council “substantially and materially changed.”
On 29 August 2006, Mayor Barrett sent plaintiff a written
memo informing him that plaintiff’s repeated requests during the
annual budget process needed to stop. Moreover, Mayor Barrett
also informed plaintiff that he had received complaints about
him from several Town citizens.
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During plaintiff’s employment, there was a general concern
about what was characterized as a drug problem in the Town.
Chief Blakeley claimed that, throughout his employment, the
Mayor and certain Town Council members requested confidential
information about ongoing narcotics cases “constant[ly]” and “on
a continuous basis.” Specifically, plaintiff alleged that the
Council members asked him for information about confidential
informants. In November 2006, Commissioner Thompson held a
meeting with Chief Blakeley and pressured him to discuss ongoing
cases. In his monthly chief’s report to the Board, Chief
Blakeley contended that he provided them all the “legally
permissible information” he could with regard to these cases.
However, he claimed that he was continually pressured to provide
additional confidential information, which he refused to do.
On 31 October 2006, Mayor Barrett wrote a memo criticizing
plaintiff’s record and claiming that he had no confidence in
plaintiff’s abilities. On 6 February 2007, the Town held a
closed session meeting, which plaintiff attended. The Board
provided plaintiff written notice of the issues they had with
his performance. The Town also passed a motion that plaintiff
would receive a review of his job performance within 30 days.
Plaintiff claims that he never received a review. On 7 March
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2007, the Board met again to consider a resolution to terminate
plaintiff’s employment. By a vote of 3 to 2, the Board voted to
terminate plaintiff. Five days later, the Board voted again and
voted 5 to 0 in favor of termination.
On 9 February 2010, plaintiff filed a complaint against the
Town alleging the following causes of action: (1) common law
wrongful discharge; (2) violations of North Carolina’s Law of
the Land clause; (3) violations of substantive and procedural
due process; (4) common law misrepresentation; and (5) common
law obstruction of justice. Defendant filed an answer and
partial motion for judgment on the pleadings with regard to all
of plaintiff’s claims except the claim of wrongful discharge.
On 7 June 2010, the matter came on for hearing before Judge John
O. Craig, III. Judge Craig granted defendant’s motion for
judgment on the pleadings. On 10 June 2011, defendant moved for
summary judgment as to plaintiff’s remaining claim for wrongful
discharge. This motion was denied in open court on 27 June 2011
by Judge James M. Webb.
The matter was tried during the 27 June 2011 term of court.
After numerous motions regarding the jury instructions, the
trial court instructed the jury on the common law tort of
wrongful discharge of an at-will employee in violation of public
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policy. With regard to what public policy plaintiff claimed he
refused to violate, the trial court instructed the jury on two
statutes: (1) N.C. Gen. Stat. § 14-230, which prohibits a public
official from refusing to discharge his duties; and (2) N.C.
Gen. Stat. § 14-226(a), which prohibits the intimidation or
interference with witnesses. The jury was asked to answer four
issues: (1) Was the plaintiff’s refusal to participate in
conduct which violated public policy a substantial factor in the
defendant’s decision to terminate him?; (2) Would defendant have
terminated plaintiff if he had not refused to participate in
that conduct?; (3) What amount of damages is plaintiff entitled
to recover?; and (4) By what amount should the plaintiff’s
actual damages be reduced? On 7 July 2011, the jury returned a
verdict and answered the issues as: yes, no, $291,000, and
$191,000, respectively. That same day, plaintiff filed a motion
for equitable relief of front pay in lieu of reinstatement.
Defendant filed a motion in response, arguing that plaintiff was
not entitled to recover front pay as an at-will employee because
at-will employees are not entitled to lost wages.
On 29 September 2011, defendant filed a motion for judgment
notwithstanding the verdict or in the alternative for amendment
of the judgment and/or a new trial. Pursuant to Rule 59,
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defendant argued that the trial court should amend the judgment
because: (1) plaintiff failed to meet his burden of establishing
actual damages; (2) the judgment should only include the actual
wages plaintiff would have earned working for the Town up until
the date of trial minus the amount of wages plaintiff actually
earned during that time; and (3) in the alternative, the amount
of the judgment should be amended to reflect the actual wages
plus benefits plaintiff would have earned working for the Town
minus the amount of wages plaintiff actually earned.
Furthermore, defendant alleged that a new trial was warranted to
correct an error of law, prevent a miscarriage of justice,
prevent an erroneous judgment, fix a verdict that was against
the weight of the evidence, fix the erroneous jury instructions,
address plaintiff counsel’s inflammatory and prejudicial
statements during trial, and because the jury’s award of damages
was excessive.
On 16 March 2012, Judge Webb issued an order, among other
things: (1) denying plaintiff’s motion for equitable relief in
the form of front pay; (2) denying defendant’s Rule 59 motions;
and (3) awarding plaintiff the amount of the verdict $100,000
plus $6,811.45 in costs and fees. Defendant timely appealed on
16 April 2012.
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Standard of Review
On appeal, when defendants move for a new trial pursuant to
Rule 59(a)(5), (6), and (7), a trial court’s decision “may be
reversed on appeal only in those exceptional cases where an
abuse of discretion is clearly shown.” Greene v. Royster, 187
N.C. App. 71, 78, 652 S.E.2d 277, 282 (2007); see also
Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602
(1982). “An appellate court should not disturb a discretionary
Rule 59 order unless it is reasonably convinced by the cold
record that the trial judge’s ruling probably amounted to a
substantial miscarriage of justice.” Anderson v. Hollifield,
345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997). However, we
review the trial court’s denial of a motion for a new trial
pursuant to Rule 59(a)(8) de novo. Auto. Grp., LLC v. A-1 Auto
Charlotte, LLC, __ N.C. App. __, __, 750 S.E.2d 562, 565 (2013).
Arguments
I. Defendant’s Motion to Amend the Verdict
First, defendant argues that the trial court erred in
denying its motion to amend the verdict pursuant to Rule 59
because: (1) plaintiff failed to meet his burden of establishing
the amount of actual damages he was entitled to; (2) even
assuming plaintiff proved actual damages, the jury’s award was
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in excess of any actual damages proven at trial and the jury
must have improperly considered either hypothetical future wages
or emotional distress damages, neither of which constitute
actual damages; and (3) the jury failed to properly adjust the
damage award based on plaintiff’s failure to mitigate his
damages.
The only claim submitted to the jury was plaintiff’s
wrongful discharge claim in violation of public policy.
Ordinarily, an employee without a definite term of employment is
an employee at-will and may be discharged without reason. Still
v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971).
However, the employee-at-will rule is subject to certain
exceptions. Our appellate Courts first recognized a public-
policy exception to the employment-at-will doctrine in Sides v.
Duke Univ., 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied,
314 N.C. 331, 333 S.E.2d 490 (1985), and Coman v. Thomas Mfg.
Co., 325 N.C. 172, 381 S.E.2d 445 (1989). “An employer
wrongfully discharges an at-will employee if the termination is
done for an unlawful reason or purpose that contravenes public
policy.” Garner v. Rentenbach Constructors Inc., 350 N.C. 567,
571, 515 S.E.2d 438, 441 (1999).
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At trial, the jury was instructed that the amount of
damages plaintiff may be entitled to included nominal damages
and actual damages. Furthermore, the trial court went on to
instruct that should plaintiff prove by the greater weight of
the evidence that he has suffered actual damages by reasons of
the wrongful termination and the amount, those damages would
include “that amount of money necessary to place the plaintiff
in the same economic position in which he would have been if the
wrongful termination had not occurred. Actual damages also
means some actual loss, hurt, or harm[.]” The trial court went
on to state that actual damages could include future losses.
Defendant contends that the trial court’s inclusion of future
lost wages and emotional distress damages in the measure of
plaintiff’s actual damages constituted error.
Pursuant to Rule 59(a)(8) (“[e]rror in law occurring at the
trial and objected to by the party making the motion”),
defendant argues that the trial court committed an error of law
in allowing plaintiff to recover damages for emotional distress
and future lost wages because those types of damages at not
available for a claim of wrongful discharge. Thus, the issue is
whether a plaintiff asserting a cause of action for wrongful
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discharge is entitled to these traditional types of tort
damages.
Initially, it should be noted that “[i]n order to obtain
relief under Rule 59(a)(8), a defendant must show a proper
objection at trial to the alleged error of law giving rise to
the Rule 59(a)(8) motion.” Davis v. Davis, 360 N.C. 518, 522,
631 S.E.2d 114, 118 (2006). Here, even though defendant did not
object to the instructions after the trial court read them to
the jury, the record indicates that defendant properly objected
to these jury instructions at the charge conference, and the
trial court refused to alter the instructions on damages; thus,
defendant properly preserved this issue for appellate review,
Wall v. Stout, 310 N.C. 184, 189, 311 S.E.2d 571, 575 (1984),
and our review is de novo, Auto. Grp., LLC, __ N.C. App. at __,
750 S.E.2d at 565.
While our Courts clearly recognize that a claim for
wrongful discharge of an at-will employee constitutes a tort
claim, see Salt v. Applied Analytical, Inc., 104 N.C. App. 652,
662, 412 S.E.2d 97, 102-103 (1991) (“tort claim alleging
wrongful discharge”); McDonnell v. Guilford County Tradewind
Airlines, 194 N.C. App 674, 678, 670 S.E.2d 302, 306 (2009)
(wrongful discharge in violation of public policy is a tort
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claim), exactly what type of damages a plaintiff may be entitled
to and whether it includes all traditional types of damages
allowed in other tort claims has not been explicitly addressed.
Defendant contends that emotional distress damages and future
lost wage damages are not available for the tort of wrongful
discharge of an at-will employee. In support of this argument,
defendant cites two cases, Bennett v. Eastern Rebuilders, Inc.,
52 N.C. App. 579, 279 S.E.2d 46 (1981), and Block v. Paul
Reverse Life Ins. Co., 143 N.C. App. 228, 547 S.E.2d 51 (2001),
for the proposition that at-will employees are not entitled to
back pay or lost wage damages. However, the plaintiffs in these
cases sued their former employers for breach of contract, not
based on a claim of wrongful discharge. Bennett, 52 N.C. App.
at 582, 279 S.E.2d at 49; Block, 143 N.C. App. at 238, 547
S.E.2d at 59. We note that, in the majority of jurisdictions
that recognize the common law tort of wrongful discharge for at-
will employees, plaintiffs may recover for lost wages, future
lost earnings, and emotional distress. See 86 A.L.R.5th 397(2001). Moreover, we find no reason why these types of tort
damages would not be available to a plaintiff seeking relief for
wrongful discharge in violation of public policy. Therefore,
the trial court did not err by instructing the jury that it may
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award plaintiff both emotional distress damages and damages for
future lost wages.
In support of its argument, defendant contends that the
tort of wrongful discharge is more similar to a claim of
intentional infliction of emotional distress (“IIED”) and
negligent infliction of emotional distress (“NIED”) than other
types of torts. Accordingly, defendant argues that because
plaintiff failed to show “extreme and outrageous” conduct by
defendant or “severe emotional distress,” he did not meet the
“stringent standard” required for emotional distress recovery.
However, defendant’s argument confuses the distinction between
emotional distress as a type of tort damage with emotional
distress constituting a specific element in a cause of action.
To prove a claim of IIED, a plaintiff must show, among other
things, that a defendant engaged in “extreme and outrageous
conduct,” which caused “severe emotional distress.” Bryant v.
Thalhimer Bros., Inc., 113 N.C. App. 1, 7, 437 S.E.2d 519, 522
(1993). Similarly, in an NIED claim, one of the required
elements is that the plaintiff suffer “severe emotional
distress.” Johnson v. Ruark Obstetrics & Gynecology Associates,
P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). In contrast,
emotional distress damages, sometimes referred to as “pain and
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suffering” damages, is a “basis for recovery.” Iadanza v.
Harper, 169 N.C. App. 776, 780, 611 S.E.2d 217, 221 (2005).
“Moreover, physical injury is only one aspect of ‘pain and
suffering,’ which also may include emotional suffering[.]” Id.Thus, there is a difference when emotional distress is a
required element of a claim and when it is a type of damage.
Moreover, there is no requirement that a plaintiff must show
severe emotional distress in order to recover pain and suffering
damages. See Iadanza, 169 N.C. App. at 780, 611 S.E.2d at 221-
22 (rejecting the argument that “the psychological component of
damages for ‘pain and suffering’ must meet the same standard as
the element of ‘severe emotional distress’ that is part of
claims for infliction of emotional distress”). Thus, plaintiff
was not required to show either “severe emotional distress” or
“extreme and outrageous conduct” by defendant to be awarded
emotional distress or pain and suffering damages.
Next, defendant contends that the trial court erred in not
granting his motion to amend the verdict because the jury
“manifestly disregarded” the jury instructions, pursuant to Rule
59(a)(5), and because the award was in excess of the evidence at
trial, under Rule 59(a)(6).
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Our review of this issue on appeal is abuse of discretion.
Greene, 187 N.C. App. at 78, 652 S.E.2d at 282.
Here, it is unclear from the jury verdict how the jury
reached the $291,000 award for damages. With regard to the
damages for lost wages, plaintiff testified that he lost
$140,462 in wages and benefits from the Town between the time of
termination and trial. In calculating this number, plaintiff
excluded the money he earned while he was employed as a police
captain in Afghanistan. Furthermore, plaintiff claimed he lost
approximately $6,626 in lost 401K benefits. Plaintiff also
testified that his termination affected his future ability to
obtain work in the field. Specifically, plaintiff contended
that he had applied for approximately twenty-four other jobs in
law enforcement in various parts of North Carolina and had four
pending applications at the time of trial. Finally, plaintiff
claimed that he suffered emotional distress as a result of the
termination, including depression. It appears that the jury
awarded plaintiff approximately $150,000 in either future lost
wages, emotional distress, or a combination of both.
While defendant claims that the jury “manifestly
disregarded” the instructions in awarding these types of
damages, as discussed above, these types of traditional tort
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damages may be awarded in a wrongful discharge action. The
trial court specifically instructed the jury that it could award
these types of damages; thus, there is no basis for the
contention that the jury “manifestly disregarded” the
instructions. Furthermore, although it is unclear exactly how
the jury reached its overall figure, the jury’s verdict was
consistent with plaintiff’s evidence, and defendant has failed
to show that the award was so excessive that it could have only
resulted from passion or prejudice. Accordingly, defendant is
unable to meet its burden of showing that the trial court abused
its discretion in denying defendant’s motion to amend the
verdict pursuant to Rule 59(a)(5) and (6).
Additionally, defendant contends that the jury disregarded
the trial court’s instructions because they did not reduce the
award based on plaintiff’s failure to mitigate his damages.
Defendant claims that, while plaintiff applied for other law
enforcement positions, he only applied for chief of police
positions. By failing to apply for other types of law
enforcement positions, the jury should have reduced his award
accordingly.
“Under the law in North Carolina, an injured plaintiff must
exercise reasonable care and diligence to avoid or lessen the
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consequences of the defendant’s wrong. If plaintiff fails to
mitigate his damages, for any part of the loss incident to such
failure, no recovery can be had.” Lloyd v. Norfolk Southern
Railway Co., __ N.C. App. __, __, 752 S.E.2d 704, 706 (2013)
(internal quotation marks omitted).
At trial, the court instructed the jury that plaintiff’s
damages must be reduced by the amount which he could have earned
from similar employment using reasonable diligence and that
“reasonable diligence requires that an employee seek and accept
similar employment in the same locality.” Given the testimony
at trial concerning plaintiff’s attempts to find new employment,
defendant’s argument is without merit. Plaintiff testified that
he had applied for several types of positions, including a
position as Chief of Police and an instructor of law enforcement
at a college. In fact, plaintiff eventually took a contract
position in Afghanistan as a police advisor for the Department
of State. Furthermore, plaintiff listed twenty-four places he
had applied to without specifying what type of position he
applied for. Thus, the trial court did not abuse its discretion
in denying defendant’s motion to amend the verdict on this basis
because the evidence clearly established that plaintiff used
reasonable care and diligence when trying to find a new job.
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Next, defendant argues that the trial court abused its
discretion in denying his motion to amend the verdict because
the jury failed to properly reduce the amount of damages awarded
by the amount of money plaintiff earned after his employment
with the Town ended from substitute employment and unemployment
benefits. Specifically, defendant contends that the award
should have been reduced by $196,886.97, not $191,000.
At trial, plaintiff’s tax records for the years 2008-2010
were submitted which showed that plaintiff earned approximately
$186,772.97 from his employment with DynCorp and Trigger Time.
Furthermore, he received $10,114 in unemployment benefits. In
total, he earned $196,886.97. Consequently, the trial court
abused its discretion in denying defendant’s motion to amend the
verdict with regard to this issue because the evidence clearly
established that plaintiff earned $196,886.97 from other
employers and unemployment benefits. Accordingly, we reverse
the order denying defendant’s motion to amend on this basis and
remand to the trial court to reduce the verdict by $5,886.97—the
difference between $191,000, the amount the jury reduced its
award by, and $196,886.97, the amount that the award should have
been reduced by as established by the evidence.
II. Defendant’s Motion for a New Trial
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Next, defendant argues that the trial court erred in
denying its motion for a new trial because: (1) the trial court
erred in instructing the jury that it may include damages for
emotional distress in plaintiff’s award of actual damages; (2)
the evidence was not sufficient to justify the verdict because
plaintiff failed to meet his burden of establishing that
defendant requested him to participate in conduct which violated
public policy; and (3) plaintiff counsel’s statements during
closing argument were highly inflammatory and prejudicial.
As noted above, we review the trial court’s denial of
defendant’s motion for a new trial on these bases for abuse of
discretion. In re Will of Buck, 350 N.C. 621, 627, 516 S.E.2d
858, 862 (1999).
With regard to defendant’s argument concerning the jury
instructions, as discussed, plaintiff was entitled to seek
emotional distress damages and future lost wage damages in his
claim for wrongful discharge. Furthermore, our Courts have
repeatedly held that actual damages include emotional distress
damages. See Ringgold v. Land, 212 N.C. 369, 371, 193 S.E. 267,
268 (1937) (“‘Actual damages’ are synonymous with ‘compensatory
damages’ and with ‘general damages.’ Damages for mental
suffering are actual or compensatory. They are not special nor
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punitive, and are given to indemnify the plaintiff for the
injury suffered.”) (internal citations omitted); see also First
Value Homes, Inc. v. Morse, 86 N.C. App. 613, 617, 359 S.E.2d
42, 44 (1987). Furthermore, “[c]ompensatory damages provide
recovery for, inter alia, mental or physical pain and suffering,
lost wages and medical expenses.” Iadanza, 169 N.C. App. at
780, 611 S.E.2d at 221. Therefore, since compensatory and
actual damages are synonymous and compensatory damages include
emotional distress and lost wages, defendant’s argument that
“actual damages” do not include emotional distress damages and
damages for future lost wages is without merit.
Next, defendant contends that the evidence was insufficient
to establish that defendant requested plaintiff participate in
conduct which violated public policy. Specifically, defendant
characterizes the evidence as too vague and unspecific to submit
the issue to the jury.
To state a claim for wrongful discharge in violation of
public policy, an employee has the burden of showing that his
“dismissal occurred for a reason that violates public policy.”
Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551
S.E.2d 179, 181, aff’d per curiam, 354 N.C. 568, 557 S.E.2d 528(2001). However, “something more than a mere statutory
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violation is required to sustain a claim of wrongful discharge
under the public-policy exception. An employer wrongfully
discharges an at-will employee if the termination is done for an
unlawful reason or purpose that contravenes public policy.”
Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 571, 515
S.E.2d 438, 441 (1999) (internal quotation marks omitted).
While there is no specific list that
enumerates what actions fall within this
exception, wrongful discharge claims have
been recognized in North Carolina where the
employee was discharged (1) for refusing to
violate the law at the employer’s request,
(2) for engaging in a legally protected
activity, or (3) based on some activity by
the employer contrary to law or public
policy.
Combs v. City Elec. Supply Co., 203 N.C. App. 75, 80, 690 S.E.2d
719, 723 (2010) (internal quotation marks omitted).
Contrary to defendant’s characterization of the evidence,
we conclude that the evidence was sufficient to go to the jury
on the issue of whether plaintiff was discharged based on his
refusal to provide confidential information on the status of
ongoing drug cases. Plaintiff claims that he was discharged in
retaliation for his refusal to provide members of the Town
Council and Mayor Barrett with confidential information about
ongoing narcotics cases. Had he chosen to provide this
information, plaintiff argued that he would have violated N.C.
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Gen. Stat. § 14-230. N.C. Gen. Stat. § 14-230 provides, in
pertinent part that “[i]f any . . . official . . . of any city
or town . . . shall willfully omit, neglect or refuse to
discharge any of the duties of his office, for default whereof
it is not elsewhere provided that he shall be indicted, he shall
be guilty of a Class 1 misdemeanor.” Initially, we note that “a
chief of police as well as a policeman is an officer of the
municipality which engages his services, within the meaning of
the provisions of G.S. § 14-230[.]” State v. Hord, 264 N.C.
149, 156-57, 141 S.E.2d 241, 246 (1965). As Chief of Police,
plaintiff had a duty to protect the integrity of ongoing
criminal cases. In doing so, plaintiff was required to ensure
that information about those cases, particularly information
about informants, remain confidential. Otherwise, the safety of
those informants would be jeopardized.
Plaintiff testified that he was repeatedly asked by members
of the Town Council to provide confidential information on “an
ongoing basis.” Commissioner Lonnie Jones testified that one of
the reasons plaintiff was discharged was based on his failure to
keep the Board properly apprised of the status of investigations
even after being repeatedly requested to do so. There is a
difference between being asked on the progress of the drug cases
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versus being asked to provide information about confidential
informants. By asking him to provide this information,
defendant was not only asking him to violate N.C. Gen. Stat. §
14-230, but it was also asking him to violate public policy
which protects the safety of confidential informants. Given
that plaintiff believed and testified that defendant wanted
confidential information which he was legally not allowed to
share and the fact that, had he done so, plaintiff would have
violated the law and public policy, defendant is unable to
establish that the trial court abused its discretion in denying
its motion for a new trial.
Finally, defendant contends that the trial court erred in
denying his motion for a new trial based on plaintiff counsel’s
inflammatory and prejudicial remarks during closing arguments.
Since defendant did not object at trial to these remarks,
where a party fails to object during closing arguments, “our
review is limited to discerning whether the statements were so
grossly improper that the trial court abused its discretion in
failing to intervene ex mero motu.” O'Carroll v. Texasgulf,
Inc., 132 N.C. App. 307, 315, 511 S.E.2d 313, 319 (1999).
In its brief, defendant cites several statements made by
plaintiff counsel that it characterized as grossly improper. We
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agree with defendant that those statements made by plaintiff’s
counsel that characterized the Town and at-will employment in an
unflattering way and the highly inflammatory remarks regarding
Mayor Barrett, among others, were improper. Upon review,
however, these statements were not so prejudicial as to entitle
defendant to a new trial. Defendant did not object to this
argument at trial, and our review is limited to discerning
whether the statements were so grossly improper that the trial
court abused its discretion in failing to intervene ex mero
motu. Id. We do not believe the argument rises to the level of
gross impropriety, and, thus, the trial court did not abuse its
discretion by failing to intervene.
Conclusion
With regard to defendant’s motion to amend the verdict
based on the jury’s failure to properly offset the amount of
damages by the amount of money plaintiff earned in other jobs
and in unemployment benefits, we remand for the trial court to
reduce the judgment by $5,886.97. As to all other bases for the
denial of defendant’s motion to amend the verdict and motion for
a new trial, we find no error.
REVERSED AND REMANDED IN PART; NO ERROR IN PART.
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Judges GEER and McCULLOUGH concur.