{ "id": 11654542, "name": "PRESTON GENE HOUPE, Plaintiff v. CITY OF STATESVILLE, a municipal corporation; JACK KING, in his official capacity as City Manager; ROBERT WARSHAW, individually and in his former official capacity as Chief of Police; DALTON Z. BROWN, in his official Cacpacity as Assistant Chief of Police and formerly Acting Chief of Police; EDWARD JARVIS, individually and in his official capacity as Lieutenant and formerly as Acting Assistant Chief of Police; GREGORY STONE, in his official capacity as an Internal Affairs Investigator, and MICHAEL GRANT, in his official capacity as a criminal investigator, Defendants", "name_abbreviation": "Houpe v. City of Statesville", "decision_date": "1998-01-20", "docket_number": "No. COA96-1272", "first_page": "334", "last_page": "352", "citations": [ { "type": "official", "cite": "128 N.C. App. 334" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "421 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "\"claim against defendant employees [of Department of Human Resources] individually for monetary damages under N.C.G.S. \u00a7 122C-66(b" } ], "opinion_index": 0 }, { "cite": "332 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505409, 2504968, 2504747, 2505141, 2504699 ], "year": 1992, "pin_cites": [ { "parenthetical": "\"claim against defendant employees [of Department of Human Resources] individually for monetary damages under N.C.G.S. \u00a7 122C-66(b" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0345-01", "/nc/332/0345-02", "/nc/332/0345-05", "/nc/332/0345-04", "/nc/332/0345-03" ] }, { "cite": "418 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "287", "parenthetical": "\"claim against defendant employees [of Department of Human Resources] individually for monetary damages under N.C.G.S. \u00a7 122C-66(b" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314074 ], "year": 1992, "pin_cites": [ { "page": "514", "parenthetical": "\"claim against defendant employees [of Department of Human Resources] individually for monetary damages under N.C.G.S. \u00a7 122C-66(b" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0496-01" ] }, { "cite": "258 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "792", "parenthetical": "absolute privilege applicable to communications in administrative proceedings where officer or agency exercises quasi-judicial function" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551248 ], "year": 1979, "pin_cites": [ { "page": "293-94", "parenthetical": "absolute privilege applicable to communications in administrative proceedings where officer or agency exercises quasi-judicial function" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0288-01" ] }, { "cite": "322 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514028, 2518960, 2516821, 2517941, 2513435 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0834-04", "/nc/322/0834-02", "/nc/322/0834-01", "/nc/322/0834-05", "/nc/322/0834-03" ] }, { "cite": "188 F.2d 421", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1218563 ], "year": 1951, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/f2d/188/0421-01" ] }, { "cite": "456 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790248, 790177, 790229, 790134 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0263-01", "/nc/340/0263-04", "/nc/340/0263-03", "/nc/340/0263-02" ] }, { "cite": "454 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917167 ], "year": 1995, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0161-01" ] }, { "cite": "473 U.S. 159", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197246 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "165-66", "parenthetical": "\"[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity\"" }, { "page": "121", "parenthetical": "\"[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity\"" } ], "opinion_index": 0, "case_paths": [ "/us/473/0159-01" ] }, { "cite": "293 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "115" } ], "opinion_index": 0 }, { "cite": "306 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567947 ], "year": 1982, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0187-01" ] }, { "cite": "75 S.E. 34", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1912, "pin_cites": [ { "page": "38", "parenthetical": "historical purpose of provision for penal damages in section is difficulty of proof of compensatory damages" } ], "opinion_index": 0 }, { "cite": "159 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657958 ], "year": 1912, "pin_cites": [ { "page": "252", "parenthetical": "historical purpose of provision for penal damages in section is difficulty of proof of compensatory damages" } ], "opinion_index": 0, "case_paths": [ "/nc/159/0241-01" ] }, { "cite": "453 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "238-39" }, { "page": "239" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526099 ], "year": 1995, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0615-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "431 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 790", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549288, 2548138, 2546705, 2548280, 2546877 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0790-05", "/nc/333/0790-04", "/nc/333/0790-03", "/nc/333/0790-02", "/nc/333/0790-01" ] }, { "cite": "426 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "453" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524720 ], "year": 1993, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0152-01" ] }, { "cite": "209 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "146 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "416", "parenthetical": "definitions contained in \"standard, nonlegal dictionaries may be a more reliable guide to the construction of an insurance contract than definitions found in law dictionaries\"" } ], "opinion_index": 0 }, { "cite": "266 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561069 ], "year": 1966, "pin_cites": [ { "page": "438", "parenthetical": "definitions contained in \"standard, nonlegal dictionaries may be a more reliable guide to the construction of an insurance contract than definitions found in law dictionaries\"" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0430-01" ] }, { "cite": "80 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "252", "parenthetical": "\"lunacy proceeding is a judicial proceeding within the rule of absolute privilege\"" } ], "opinion_index": 0 }, { "cite": "239 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627345 ], "year": 1954, "pin_cites": [ { "page": "472", "parenthetical": "\"lunacy proceeding is a judicial proceeding within the rule of absolute privilege\"" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0468-01" ] }, { "cite": "81 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "149", "parenthetical": "\"the matter to which the privilege does not extend must be so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety\"" }, { "page": "149", "parenthetical": "absolute privilege applies to statements made in pleadings and other papers filed in a judicial proceeding" } ], "opinion_index": 0 }, { "cite": "240 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594883 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "76", "parenthetical": "\"the matter to which the privilege does not extend must be so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety\"" }, { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0073-01" ] }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "841" }, { "page": "842" }, { "page": "842", "parenthetical": "absolute privilege extends to out-of-court communications relevant to proposed judicial proceedings" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "672" }, { "page": "673" }, { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] }, { "cite": "100 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "247 N.C 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626848 ], "year": 1957, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0286-01" ] }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "trial court properly dismissed wrongful discharge and breach of contract claims against individual defendants where plaintiff alleged her employment contract was with Duke University rather than with individual defendants" } ], "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "year": 1985, "pin_cites": [ { "parenthetical": "trial court properly dismissed wrongful discharge and breach of contract claims against individual defendants where plaintiff alleged her employment contract was with Duke University rather than with individual defendants" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "828", "parenthetical": "trial court properly dismissed wrongful discharge and breach of contract claims against individual defendants where plaintiff alleged her employment contract was with Duke University rather than with individual defendants" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "year": 1985, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "341 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "unilaterally promulgated employment manuals or policies not part of employment contract unless expressly included therein" } ], "opinion_index": 0 }, { "cite": "315 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714275, 4718790, 4717073, 4719672, 4715545 ], "year": 1986, "pin_cites": [ { "parenthetical": "unilaterally promulgated employment manuals or policies not part of employment contract unless expressly included therein" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0597-02", "/nc/315/0597-01", "/nc/315/0597-03", "/nc/315/0597-04", "/nc/315/0597-05" ] }, { "cite": "335 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "83-84" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521759 ], "year": 1985, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0253-01" ] }, { "cite": "224 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556400 ], "year": 1976, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0504-01" ] }, { "cite": "222 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "423-24" } ], "opinion_index": 0 }, { "cite": "289 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569569 ], "year": 1976, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0303-01" ] }, { "cite": "447 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1221548 ], "year": 1994, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/ga/259/0447-02" ] }, { "cite": "336 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538080, 2538689, 2537376, 2537868, 2537009 ], "year": 1994, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0615-05", "/nc/336/0615-01", "/nc/336/0615-04", "/nc/336/0615-02", "/nc/336/0615-03" ] }, { "cite": "440 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "125", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523743 ], "year": 1994, "pin_cites": [ { "page": "588", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0579-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "68" }, { "page": "68" }, { "page": "68" } ], "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "538" }, { "page": "538" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "144 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "820" } ], "opinion_index": 0 }, { "cite": "265 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576581 ], "year": 1965, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0634-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "322 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "attached exhibits become part of the pleadings" } ], "opinion_index": 0 }, { "cite": "312 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756490, 4751086, 4754065, 4759031, 4755005 ], "year": 1984, "pin_cites": [ { "parenthetical": "attached exhibits become part of the pleadings" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0495-01", "/nc/312/0495-03", "/nc/312/0495-05", "/nc/312/0495-04", "/nc/312/0495-02" ] }, { "cite": "318 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "867", "parenthetical": "attached exhibits become part of the pleadings" }, { "page": "867" }, { "page": "867" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520365 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "78", "parenthetical": "attached exhibits become part of the pleadings" }, { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0076-01" ] }, { "cite": "429 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "179", "parenthetical": "governmental immunity retained for causes of action excluded by insurance policy" }, { "page": "180", "parenthetical": "citations omitted" }, { "page": "179" }, { "page": "180" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524639 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "44", "parenthetical": "governmental immunity retained for causes of action excluded by insurance policy" }, { "page": "45" }, { "page": "44" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0039-01" ] }, { "cite": "454 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558925, 2556401, 2557239, 2559480, 2556571 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0739-05", "/nc/339/0739-04", "/nc/339/0739-01", "/nc/339/0739-03", "/nc/339/0739-02" ] }, { "cite": "451 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "657-58" }, { "page": "657" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525848 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "504" }, { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0494-01" ] }, { "cite": "477 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867561 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0676-01" ] }, { "cite": "461 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914135 ], "year": 1995, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0096-01" ] }, { "cite": "371 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "366 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521115 ], "year": 1988, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0188-01" ] }, { "cite": "445 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535471 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0077-01" ] }, { "cite": "436 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "278" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523032 ], "year": 1993, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0604-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "678", "parenthetical": "this Court may entertain an interlocutory appeal when doing so \"would expedite the administration of justice\"" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "24", "parenthetical": "this Court may entertain an interlocutory appeal when doing so \"would expedite the administration of justice\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "431 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549696, 2549262, 2548312, 2548187, 2550014 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0795-04", "/nc/333/0795-05", "/nc/333/0795-01", "/nc/333/0795-02", "/nc/333/0795-03" ] }, { "cite": "427 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525532 ], "year": 1993, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0379-01" ] }, { "cite": "209 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "499" }, { "page": "499" } ], "opinion_index": 0 }, { "cite": "286 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563771 ], "weight": 4, "year": 1974, "pin_cites": [ { "page": "137" }, { "page": "137" }, { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0130-01" ] }, { "cite": "477 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867594 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0729-01" ] }, { "cite": "466 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "283" }, { "page": "283" }, { "page": "283" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917864 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "468" }, { "page": "468" }, { "page": "468-69" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0466-01" ] } ], "analysis": { "cardinality": 1461, "char_count": 45133, "ocr_confidence": 0.773, "pagerank": { "raw": 4.6093911896222157e-07, "percentile": 0.92616693096779 }, "sha256": "56b79f349ecdc3b990e809f0e8d16ec5520ae13001c716718bd671c1221ed22d", "simhash": "1:0339d4ea375eee77", "word_count": 6964 }, "last_updated": "2023-07-14T19:05:25.972365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "PRESTON GENE HOUPE, Plaintiff v. CITY OF STATESVILLE, a municipal corporation; JACK KING, in his official capacity as City Manager; ROBERT WARSHAW, individually and in his former official capacity as Chief of Police; DALTON Z. BROWN, in his official Cacpacity as Assistant Chief of Police and formerly Acting Chief of Police; EDWARD JARVIS, individually and in his official capacity as Lieutenant and formerly as Acting Assistant Chief of Police; GREGORY STONE, in his official capacity as an Internal Affairs Investigator, and MICHAEL GRANT, in his official capacity as a criminal investigator, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant City of Statesville (the City) and co-defendants City Manager Jack King (City Manager King), Statesville police officers former Chief Robert Warshaw (Chief Warshaw), Assistant Chief of Police Dalton Z. Brown (Brown), Investigations Lieutenant Edward Jarvis (Jarvis), Internal Affairs Investigator Gregory Stone (Stone), and criminal investigator Michael Grant (Grant) appeal an order of the trial court denying their motion for judgment on the pleadings. We affirm that order in part and reverse in part.\nOn 21 June 1995, plaintiff, a Statesville police officer, filed suit against defendants alleging eleven causes of action, including, inter alia, wrongful termination, breach of contract, libel, slander, malicious prosecution, false arrest, and violation of civil rights. Chief Warshaw and Jarvis were sued both individually and in their official capacities, while City Manager King, Brown, Stone and Grant were sued solely in their official capacities.\nPertinent factual information as alleged in plaintiffs complaint included the following: Sometime prior to December 1993, plaintiff complained \u201cto third persons employed with the City\u2019s Police Department\u201d (the Department) that a \u201cdouble standard\u201d existed between the disciplinary treatment of high-ranking officers, including Jarvis, and low-ranking officers, with the former being given preference. Chief Warshaw responded by threatening to terminate plaintiff\u2019s employment if he made further accusations regarding the alleged impunity of Jarvis and others in the Department.\nIn January 1994, Jarvis reported to Chief Warshaw that plaintiff had been engaged in \u201ccertain off duty/patrol assistance activities\u201d on 27 December 1993 which, according to Jarvis, may have included criminal activity. Chief Warshaw assigned Jarvis to conduct an internal investigation into plaintiff\u2019s 27 December 1993 activities, notwithstanding the Chief\u2019s knowledge that Jarvis harbored personal prejudice against plaintiff. Stone was assigned to assist Jarvis.\nAccording to plaintiff\u2019s complaint, Jarvis and Stone improperly conducted their investigation into plaintiff\u2019s conduct, failing to interview witnesses or develop physical evidence in a thorough manner. The pair also directed plaintiff to submit to a recorded and videotaped interrogation without the presence of legal counsel, during which inquiry Jarvis misrepresented evidence and statements of witnesses. Although Jarvis subsequently concluded there existed no probable cause to suspect criminal activity on the part of plaintiff, Jarvis wrote and published to Chief Warshaw and others a report that plaintiff had attempted to break into one business and had actually broken into another during the early morning hours of 27 December 1993.\nOn 28 January 1994, Chief Warshaw terminated plaintiff\u2019s employment in retaliation for plaintiff\u2019s complaints about double standards within the Department. Although the City\u2019s charter, ordinances and policies specified that non-probationary Department employees possessed the right to appeal .termination to the City\u2019s Civil Service Board (the Board), plaintiff was afforded no opportunity to pursue such an appeal. The City, by and through the Board, City Manager King, Chief Warshaw and Jarvis, conspired to deny plaintiffs right to a hearing by asserting he was merely a probationary employee. Notwithstanding the City\u2019s denial of a hearing, plaintiff tendered, under the City\u2019s charter and Board policy, timely written notice of appeal of his termination. Immediately upon receipt thereof, Chief Warshaw, in an attempt to intimidate plaintiff into abandoning his appeal, assigned Grant to conduct a criminal investigation concerning plaintiff\u2019s 27 December 1993 activities. On 23 February 1994, Grant reported the findings of his inquiry to Chief Warshaw and Jarvis. No criminal charges were brought against plaintiff at that time.\nSeeking to establish his status as a non-probationary employee, plaintiff filed a declaratory judgment action 18 February 1994 in Iredell County Superior Court. On 11 July 1994, approximately one month prior to the scheduled trial date for that case, Jarvis (then Acting Assistant Chief of Police) instructed Grant to testify before the Iredell County grand jury regarding his investigation of the events of 27 December 1993. Following Grant\u2019s testimony, the grand jury issued two indictments against plaintiff, and the latter was subsequently arrested 13 July 1994 and subjected to significant negative publicity in the local media.\nThereafter, on 26 August 1994, a jury in plaintiff\u2019s declaratory judgment action returned a verdict in plaintiff\u2019s favor, determining he indeed qualified as a non-probationary employee. The Board consequently conducted a hearing 28 November to 8 December 1994, following which the panel determined plaintiff was unjustifiably terminated and reinstated him as a police officer with the City. Early in 1995, the local District Attorney dismissed the criminal charges pending against plaintiff, citing the Board\u2019s findings.\nAs noted above, plaintiff initiated the instant action 21 June 1995. Defendants filed answer denying the essential allegations of the complaint and asserting, inter alia, the defense of governmental immunity. Defendants thereafter filed an amended answer, and the City and the co-defendants sued in their official capacities (hereinafter collectively \u201cdefendants,\u201d excluding Chief Warshaw and Jarvis individually) subsequently moved for judgment on the pleadings (defendants\u2019 motion) 8 March 1996. Defendants\u2019 motion was denied in an order filed 6 September 1996, and defendants timely appealed to this Court.\nA party moving for judgment on the pleadings admits:\n(1) the truth of all well-pleaded facts in the non-movant\u2019s pleading, together with all permissible inferences to be drawn from such facts; and (2) the untruth of his own allegations in so far as they are controverted by the non-movant\u2019s pleading.\nHedrick v. Rains, 121 N.C. App. 466, 468, 466 S.E.2d 281, 283, aff'd per curiam, 344 N.C. 729, 477 S.E.2d 171 (1996). Judgment on the pleadings is not favored in the law because it is both summary and final. Id. The movant is held to a strict standard to show that no material issue of fact exists and that he or she is clearly entitled to judgment. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). While advancing a multiplicity of arguments, defendants in the main contend the trial court properly determined there was no material issue of fact regarding plaintiff\u2019s claims because his complaint revealed each was barred under the doctrine of governmental immunity.\nAlthough defendants\u2019 appeal of the trial court\u2019s order denying defendants\u2019 motion is interlocutory,\nwe have held that orders denying dispositive motions grounded on the defense of governmental immunity are immediately reviewable as affecting a substantial right.\nHedrick, 121 N.C. App. at 468, 466 S.E.2d at 283; see also Whitaker v. Clark, 109 N.C. App. 379, 381, 427 S.E.2d 142, 143, disc. review and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993). We therefore entertain defendants\u2019 appeal to the extent it is based upon the defense of governmental immunity. Moreover, where it would be in the interests of judicial economy to do so, see Liggett Group v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674, 678 (1993) (this Court may entertain an interlocutory appeal when doing so \u201cwould expedite the administration of justice\u201d), we will in our discretion address defendants\u2019 alternative arguments.\nGovernmental immunity shields municipalities and the officers or employees thereof sued in their official capacities from suits based on torts committed while performing a governmental function. Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). This Court has previously held that the provision of police services, Coleman v. Cooper, 89 N.C. App. 188, 192, 366 S.E.2d 2, 5, disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988), and the training and supervision of police officers, Lyles v. City of Charlotte, 120 N.C. App. 96, 100, 461 S.E.2d 347, 350 (1995), rev\u2019d on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996), constituted governmental functions. We believe the actions of a city and its officials in investigating and disciplining a city police officer accused of criminal activity are likewise encompassed within the rubric of \u201cgovernmental functions.\u201d\nA municipality may waive governmental immunity for tort actions by the purchase of liability insurance. N.C.G.S. \u00a7 160A-485(a) (1994). However, the purchase of such insurance must be alleged in order for a complaint to set forth a claim against a governmental entity or its officers or employees in their official capacities. Morrison-Tiffin v. Hampton, 117 N.C. App. 494, 504, 451 S.E.2d 650, 657-58, appeal dismissed and disc. review denied, 339 N.C. 739, 454 S.E.2d 654 (1995). Notwithstanding presence of the requisite allegation in the instant complaint, defendants contend plaintiff\u2019s tort claims are excluded from coverage by the alleged policies of insurance (defendants\u2019 policies) underwritten by General Star National Insurance Company (General Star policy) and National Casualty Company (National Casualty policy). See Dickens v. Thorne, 110 N.C. App. 39, 44, 429 S.E.2d 176, 179 (1993) (governmental immunity retained for causes of action excluded by insurance policy). These policies were attached to defendants\u2019 answer and incorporated therein. See Minor v. Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865, 867, disc. review denied, 312 N.C. 495, 322 S.E.2d 558 (1984) (attached exhibits become part of the pleadings).\nWe emphasize defendants\u2019 motion was directed at plaintiff\u2019s claims against City Manager King, Chief Warshaw, Brown, Jarvis, Stone and Grant, in their official capacities. It is well-settled that\nan action . . . brought against individual officers in their official capacities ... is one against the state for the purposes of applying the doctrine of sovereign immunity.\nDickens, 110 N.C. App. at 45, 429 S.E.2d at 180 (citations omitted). Thus, while we discuss the propriety of defendants\u2019 motion as to the City and the individual defendants in their official capacities, we do not consider plaintiff\u2019s claims against Chief Warshaw and Jarvis in their individual capacities.\nWe address each of plaintiff\u2019s eleven claims in turn.\nI. Wrongful Termination\nPlaintiff first alleged the City by and through Chief Warshaw terminated plaintiff in consequence of his statements asserting a \u201cdouble standard\u201d of discipline within the Department. Plaintiff further alleged the City, City Manager King and Chief Warshaw knew or should have known that plaintiffs termination and denial of hearing before the Board \u201cwould be ... violation[s] of the public policy of this state.\u201d We affirm the trial court\u2019s denial of defendants\u2019 motion as to this claim.\nWe first consider defendants\u2019 policies. The General Star policy excludes \u201c[p]ersonal injury arising out of any . . . [termination of employment.\u201d The tort of wrongful discharge is thus unambiguously excluded by this policy, and governmental immunity as to that tort was not waived thereunder.\nApplicability of the National Casualty policy, however, is less easily resolved. The meaning of specific language used in a policy of insurance is a question of law. Trust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). When language is clear and unambiguous, as in the General Star policy exclusion, a policy provision will be accorded its plain meaning. Walsh v. Insurance Co., 265 N.C. 634, 639, 144 S.E.2d 817, 820 (1965). However, when language is subject to more than one interpretation, a policy provision is to be liberally construed so as to afford coverage whenever possible by reasonable construction. State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986). Further, it is well settled in this jurisdiction that exclusionary provisions are not favored in the law and will be construed against the insurer if ambiguous. Id.\nDefendants rely on the following section of the National Casualty policy which excludes any claim made against the insured\n[f]or any damage arising from bodily injury, sickness, emotional distress, mental anguish, disease or death of any person, or for damage to or destruction of any property, including diminution of value or loss of use thereof.\nDefendants argue that an interrogatory response of plaintiff indicated he sought recovery for emotional distress and mental anguish, and that plaintiff\u2019s wrongful termination claim is thus excluded under the National Casualty policy. However, consideration of interrogatories by the trial court is not proper in ruling on a motion for judgment on the pleadings, see Minor, 70 N.C. App. at 78, 318 S.E.2d at 867, and the record in any event does not reflect the trial court\u2019s consideration thereof in ruling on defendants\u2019 motion. We are therefore unpersuaded by this argument.\nIn addition, defendants have failed otherwise to show how the foregoing provision would operate to preclude plaintiff\u2019s claim for wrongful termination. In view of the requirements that insurance exclusions be strictly construed, State Capital, 318 N.C. at 538, 350 S.E.2d at 68, and for a judgment on the pleadings movant to show \u201cclear[] entitle[ment]\u201d to a favorable ruling, Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499, we cannot conclude that defendants \u201cclearly\u201d demonstrated lack of waiver of governmental immunity by the City\u2019s purchase of the National Casualty policy. The trial court\u2019s denial of defendants\u2019 motion on plaintiff\u2019s wrongful termination claim is therefore affirmed.\nII. Breach of Contract\nPlaintiff\u2019s second cause of action asserted breach of contract by virtue of defendants\u2019 contravention of City policies and ordinances which prohibited termination of a non-probationary employee except for good cause and also provided immediate review of any termination by the Board. We affirm the trial court\u2019s denial of defendants\u2019 motion as to the City, but reverse the ruling with respect to the individual defendants sued in their official capacities.\nPreliminarily, we assume plaintiff\u2019s wrongful termination and breach of contract claims to have been advanced in the alternative. Wrongful termination may be asserted \u201conly in the context of employees at will,\u201d and not by an employee \u201cemployed for a definite term or ... subject to discharge only for \u2018just cause.\u2019 \u201d Wagoner v. Elkin City Schools\u2019 Bd. of Education, 113 N.C. App. 579, 588, 440 S.E.2d 119, 125, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994) (citation omitted).\nWe further note that sovereign immunity does not apply to breach of contract claims. Whenever a sovereign enters into a valid contract, it \u201cimplicitly consents to be sued for damages on the contract in the event it breaches the contract.\u201d Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412, 423-24 (1976). Although Smith specifically refers only to contracts entered into by the \u201cState,\u201d id., municipal sovereign immunity is attained in derivation of state sovereign immuity. See 18 Eugene McQuillin, The Law of Municipal Corporations \u00a7 53.24, at 310 (3d ed. 1993) (\u201c[a] municipality derives its general tort immunity from the state because it is deemed to act as the state\u2019s arm or agent when performing governmental functions\u201d), and 63 C.J.S.2d Municipal Corporations \u00a7 746, at 30-32 (\u201cthe city in exercising governmental functions does so under delegated powers from the state or as an agency of the sovereign, and acts under the same immunity, if any, enjoyed by the state\u201d). Thus, the rule of Smith v. State applies to municipalities.\nA viable claim for breach of an employment contract must allege the existence of contractual terms regarding the duration or means of terminating employment. Tatum v. Brown, 29 N.C. App. 504, 505, 224 S.E.2d 698, 699 (1976). Plaintiff\u2019s complaint addressed this requirement by alleging that the City\u2019s charter, ordinances and written policies created an agreement whereby he would not be terminated except for \u201cgood cause\u201d and that termination would be subject to review by the Board.\nDefendants, citing N.C.G.S. \u00a7 160A-16 (1994), respond that, the foregoing allegations notwithstanding, plaintiff fell afoul of the rule that \u201c[a]ll contracts made by or on behalf of a city [must] be in writing\u201d in order to be enforceable. However, plaintiff further specifically alleged the City policies entitling him to a Board hearing were \u201cwritten.\u201d Moreover, as defendants conceded at oral argument, whether the City\u2019s charter, ordinances and personnel policies became a part of plaintiff\u2019s employment contract would not be an issue properly adjudicated on the pleadings. See Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986) (unilaterally promulgated employment manuals or policies not part of employment contract unless expressly included therein). Judgment on the pleadings is improper where there exists a material issue of fact, Hedrick, 121 N.C. App. at 468-69, 466 S.E.2d at 283, and we therefore affirm the trial court\u2019s denial of defendant City\u2019s motion as to plaintiff\u2019s breach of contract claim.\nHowever, the trial court erred in denying defendants\u2019 motion with respect to the individual defendants. The complaint alleged plaintiff was hired by the City for employment as a City police officer, not by any of the individual defendants. See Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (trial court properly dismissed wrongful discharge and breach of contract claims against individual defendants where plaintiff alleged her employment contract was with Duke University rather than with individual defendants). Accordingly, we reverse the trial court\u2019s denial of defendants\u2019 motion with respect to the claim for breach of contract against the individual defendants sued in their official capacities.\nIII. Libel and Slander\nPlaintiff next asserted that (1) on or about 27 January 1994, Jarvis prepared and published a memorandum stating plaintiff had engaged in criminal activities and (2) in July 1994, Grant testified before the Iredell County Grand Jury concerning these same criminal accusations. Plaintiff further alleged the actions of Jarvis and Grant and the resulting criminal charges damaged his reputation and constituted libel and slander per se. We reverse the trial court\u2019s denial of defendants\u2019 motion regarding these claims.\nThe National Casualty policy excludes claims against the insured for libel and slander and thus does not waive governmental immunity. Dickens, 110 N.C. App. at 44, 429 S.E.2d at 179. The General Star policy sets out an exclusion for \u201cpersonal injury\u201d arising out of any \u201c[c]oercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination or other employment-related practices, policies, acts or omissions.\u201d This policy further excludes coverage for \u201c[p]ersonal injury\u201d to an \u201cemployee of the insured . . . arising out of and in the course of employment by the insured.\u201d The definitional section defines personal injury to include \u201c[o]ral or written publication of material that slanders or libels a person.\u201d\nAllegations in plaintiff\u2019s complaint that Jarvis, in his role as a Department supervisor, had prepared and disseminated a memorandum which contained statements defamatory to plaintiff, thus constituted assertion of an employment-related defamation excluded by the General Star policy. Accordingly, governmental immunity was not waived by the City\u2019s purchase of that policy, see id., and the trial court erred in denying defendants\u2019 motion as to plaintiff\u2019s libel and slander claims against Jarvis in his official capacity.\nWith respect to Grant\u2019s testimony to the grand jury, we note initially that the parties do not address the obstacles which plaintiff might face in attempting to present evidence in support of his slander claim against Grant should we decide defendants\u2019 motion was properly denied as to such claim. See N.C.G.S. \u00a7 15A-623(e) (1997) (grand jury proceedings secret and \u201call persons present . . . shall keep its secrets and refrain from disclosing anything which transpires\u201d during sessions thereof). As defendants\u2019 motion was based solely upon the allegations of plaintiff\u2019s complaint, we likewise do not discuss this issue.\nThe law is settled in this jurisdiction that\na defamatory statement made by a witness in the due course of a judicial proceeding, which is material to the inquiry, is absolutely privileged, and cannot be made the basis of an action for libel or slander, even though the testimony is given with express malice and knowledge of its falsity.\nBailey v. McGill, 247 N.C 286, 293, 100 S.E.2d 860, 866 (1957).\nThe public policy and rationale underlying the privilege is grounded upon the proper and efficient administration of justice. 50 Am. Jur. 2d Libel and Slander \u00a7 299 (1964). Participants in the judicial process must be able to testify or otherwise take part without being hampered by fear of defamation suits. Id.\nIn determining whether or not a statement is made in the course of a judicial proceeding, the court must decide as a matter of law whether the alleged defamatory statements are sufficiently relevant to the issues involved in a proposed or ongoing judicial proceeding,\nHarris v. NCNB, 85 N.C. App. 669, 672, 355 S.E.2d 838, 841 (1987), so as to qualify for the privilege. The test for relevancy is generous. See Scott v. Veneer Co., 240 N.C. 73, 76, 81 S.E.2d 146, 149 (1954) (\u201cthe matter to which the privilege does not extend must be so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety\u201d). Further, \u201cjudicial proceeding\u201d has been liberally defined, encompassing much more than civil litigation or criminal trials. Harris, 85 N.C. App. at 673, 355 S.E.2d at 842. See, e.g., Scott, 240 N.C. at 76, 81 S.E.2d at 149 (absolute privilege applies to statements made in pleadings and other papers filed in a judicial proceeding); Jarman v. Offutt, 239 N.C. 468, 472, 80 S.E.2d 248, 252 (1954) (\u201clunacy proceeding is a judicial proceeding within the rule of absolute privilege\u201d); Harris, 85 N.C. App. at 674, 355 S.E.2d at 842 (absolute privilege extends to out-of-court communications relevant to proposed judicial proceedings); and Angel v. Ward, 43 N.C. App. 288, 293-94, 258 S.E.2d 788, 792 (1979) (absolute privilege applicable to communications in administrative proceedings where officer or agency exercises quasi-judicial function).\nWhether a grand jury hearing constitutes a judicial proceeding within the meaning of the absolute privilege rule appears to be an issue of first impression in this jurisdiction. We are satisfied, however, given the broad definition of \u201cjudicial proceeding\u201d and the policy bases supporting the rule of privilege accorded to statements rendered in the course of such a proceeding, that the question is resolved in the affirmative.\nWe note first that the Restatement (Second) of Torts \u00a7 589, comment f (1977), provides that witnesses testifying before a grand jury are afforded absolute immunity. Further, the liberal definition of relevancy sustains the protection of the absolute privilege rule to Grant\u2019s statements to the grand jury regarding plaintiffs alleged criminal conduct. We therefore reverse the trial court\u2019s denial of defendants\u2019 motion regarding plaintiff\u2019s slander claim against Grant.\nIV. Malicious Prosecution and False Arrest\nPlaintiff\u2019s fourth claim for relief maintained the City, with the knowledge and intentional actions of City Manager King, Chief Warshaw and Jarvis, caused criminal charges to be brought maliciously against plaintiff without probable cause and with the intent to intimidate plaintiff into withdrawing or dismissing his declaratory judgment action. Plaintiff further alleged said charges were terminated in plaintiff\u2019s favor.\nThe National Casualty policy specifically excludes coverage for \u201cfalse arrest\u201d and \u201cmalicious prosecution,\u201d thereby preserving the defense of governmental immunity as to those claims. We therefore turn to the General Star policy.\nDefendants argue the exclusion therein of personal injury \u201carising out of and in the course of employment\u201d and for claims against \u201can insured for acts of another officer or employee unless said officer or employee is also insured for said acts in a policy of insurance issued by us\u201d applies to plaintiff\u2019s malicious prosecution and false arrest claims, which are thereby precluded by governmental immunity. We cannot agree.\nAs stated above, exclusionary provisions are not favored in the law and will be strictly construed in favor of coverage. State Capital, 318 N.C. at 538, 350 S.E.2d at 68. Both exclusions relied upon by defendants appear contingent upon plaintiff having been employed at the time of the complained injury.\nThe first provision excludes claims \u201carising out of and in the course of employment.\u201d Nowhere in the policy is this phraseology defined. However, the American Heritage Dictionary (1982) indicates the term \u201cin the course of\u2019 means duration. See Insurance Co. v. Insurance Co., 266 N.C. 430, 438, 146 S.E.2d 410, 416 (1966) (definitions contained in \u201cstandard, nonlegal dictionaries may be a more reliable guide to the construction of an insurance contract than definitions found in law dictionaries\u201d). The provision, then, would apply to personal injuries occurring within the duration of employment, or during the employment of the complainant. The second provision, excluding claims for \u201cacts of another officer or employee,\u201d likewise suggests the injury must have occurred while plaintiff was an employee so as to have been injured by \u201canother\u201d employee.\nIt is undisputed that plaintiff was terminated 28 January 1994. His complaint alleged Grant testified before the grand jury at least four times between February 1994 and June 1994. Further, it is uncontra-dicted that plaintiff was arrested 13 July 1994. Thus, the events constituting the injuries as alleged in the complaint occurred at a time when plaintiff was no longer in the employ of the City. Accordingly, any injury alleged by plaintiff may not fairly be characterized as having occurred \u201cin the course of employment\u201d so as to be excluded under the General Star policy, and defendants have otherwise failed to demonstrate their \u201cclear\u201d entitlement to judgment on the pleadings. Ragsdale, 286 N.C. at 137, 209 S.E.2d 499. We therefore affirm the trial court\u2019s denial of defendants\u2019 motion as to plaintiff\u2019s malicious prosecution and false arrest claims.\nV. Negligent Supervision and Negligent Retention\nPlaintiff claimed the City was negligent in exercising its supervisory responsibilities. He contends the National Casualty policy provides coverage for this claim and that no exclusion applies, except as to emotional distress. Plaintiff separately alleged the City knew or should have known of \u201cthe alleged actions and inactions\u201d of its supervisory employees in the Department, and that the City\u2019s negligent retention of such supervisors was a proximate cause of plaintiff\u2019s damages. We analyze these separate claims jointly in the interest of judicial economy and affirm the trial court\u2019s ruling with respect to each.\nDefendants assert that plaintiffs negligent supervision and negligent retention claims are excluded under the General Star policy\u2019s exclusion for personal injury arising out of and in the course of employment by the insured, and that governmental immunity was not waived by the City\u2019s purchase of that policy. We do not disagree and therefore proceed to consider the provisions of the National Casualty policy.\nDefendants rely on the National Casualty policy exclusion for claims\n[a]rising out of operational law enforcement functions and activities including the operation of adult and juvenile detention facilities.\nHowever, this exclusion is ambiguous as applied to the facts sub judice.\nFirst, the terminology \u201coperational law enforcement functions\u201d is nowhere defined in the policy. Moreover, the phrase in context suggests connection with the operation of institutional facilities. Further, we again note that ambiguity in a contract of insurance is to be resolved in favor of the insured. Durham City Bd. of Education v. National Union Fire Ins. Co., 109 N.C. App. 152, 156, 426 S.E.2d 451, 453, disc. review denied, 333 N.C. 790, 431 S.E.2d 22 (1993). This is especially true where, as here, the ambiguity occurs in an exclusion; exclusions are not favored in the law and are to be strictly construed to provide coverage otherwise afforded by the policy. Id. Defendants have therefore failed to show there is no material issue of fact and that they are clearly entitled to judgment as a matter of law on plaintiff\u2019s claims of negligent supervision and negligent retention. Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499.\nDefendants\u2019 further argument that these claims are excluded from coverage by National Casualty\u2019s exclusion \u201c[f]or any damage arising from... emotional distress,\u201d and that governmental immunity thus was not waived, is similarly unpersuasive. Defendants repeat their assertion that plaintiff seeks damages for emotional distress as evidenced by plaintiff\u2019s interrogatory responses. We reiterate that interrogatories are not properly considered by the trial court in ruling on a motion for judgment on the pleadings, see Minor, 70 N.C. App. at 78, 318 S.E.2d at 867, and the record in any event fails to reflect the trial court\u2019s consideration thereof on defendants\u2019 motion.\nVI. Violations of 42 U.S.C. \u00a7 1983\nPlaintiff\u2019s complaint also asserted, pursuant to 42 U.S.C. \u00a7 1983 (\u00a7 1983), violation of his civil and constitutional rights by denial of the right to immediate appeal of his termination to the Board as provided in the charter, ordinances and policies of the City. Plaintiffs claimed violations fell under two headings, due process and compelled statement; however, it is unnecessary to address each individually. Likewise, we need not address defendants\u2019 policies in discussing these claims.\nMunicipalities enjoy no immunity from suit, either absolute or qualified, under \u00a7 1983. Hawkins v. State of North Carolina, 117 N.C. App. 615, 625, 453 S.E.2d 233, 238-39 (1995). However, a municipality may not be held liable under \u00a7 1983 unless a municipal policy or custom caused the constitutional injury. Id. at 625, 453 S.E.2d at 239. Plaintiff herein has failed to allege he was harmed pursuant to a custom or policy of the City, and plaintiff thus has asserted no viable \u00a7 1983 claim against the City.\nIn addition, a \u00a7 1983 claim against local government officials is essentially an alternative way of pleading such action against the local governmental entity itself. Morrison-Tiffin, 117 N.C. App. at 503, 451 S.E.2d at 657. Because plaintiff has not alleged he was injured pursuant to a custom or a policy of the City, his \u00a7 1983 claim must also fail as against the defendants in their official capacity. Id. Accordingly, we reverse the trial court\u2019s denial of defendants\u2019 motion with respect to plaintiff\u2019s \u00a7 1983 claims.\nVII. Violations ofN.C.G.S. \u00a7 160A-168\nPlaintiff also alleged Warshaw and Jarvis published information from the Internal Affairs investigation to certain officers in Statesville, to the Department and to the Charlotte/Mecklenburg Police Department in violation of N.C.G.S. \u00a7 160A-168 (1994). Without turning to defendants\u2019 policies, we note the statute specifies violation thereof to be criminal, i.e., a \u201cmisdemeanor,\u201d G.S. \u00a7 160A-168 (e) and (f), and authorizes fines of no more than $500 in the discretion of the court upon conviction. Plaintiff insists the section creates a civil cause of action when neither the language of the statute nor any case law cited by plaintiff interpreting the statute so provide. See also Lenzer v. Flaherty, 106 N.C. App. 496, 514, 418 S.E.2d 276, 287, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992) (\u201cclaim against defendant employees [of Department of Human Resources] individually for monetary damages under N.C.G.S. \u00a7 122C-66(b),\u201d which provides as misdemeanor punishable by fine the failure to report abuse of patients in facilities licensed under Chapter 122C, properly dismissed because the \u201cstatutory provision is criminal in nature and does not create the sweeping remedy urged by plaintiff\u2019). The trial court\u2019s denial of defendants\u2019 motion as to plaintiff\u2019s claim under G.S. \u00a7 160A-168 is therefore reversed.\nVIII. Blacklisting\nPlaintiff further asserted Chief Warshaw intentionally interfered with plaintiff\u2019s employment opportunities by written and oral publication of false and erroneous information in violation of N.C.G.S. \u00a7 14-355 (1993).\nThe section authorizes a cause of action for \u201cpenal,\u201d that is, punitive, see Black\u2019s Law Dictionary 1019-20 (5th ed. 1979), damages only. See Seward v. R.R., 159 N.C. 241, 252, 75 S.E. 34, 38 (1912) (historical purpose of provision for penal damages in section is difficulty of proof of compensatory damages). However, punitive damages may not be recovered against a municipality absent statutory authorization, Long v. City of Charlotte, 306 N.C. 187, 208, 293 S.E.2d 101, 115 (1982), which G.S. \u00a7 14-355 fails to provide. Further, because a cause of action against an officer in his official capacity is essentially a claim against the City, plaintiff likewise may not seek punitive damages from Chief Warshaw in his official capacity. See Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 121 (1985) (\u201c[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity\u201d). The trial court therefore erred in denying defendants\u2019 motion as to plaintiff\u2019s claims against defendants based upon G.S. \u00a7 14-355.\nIX. Civil Conspiracy\nFinally, plaintiff\u2019s complaint alleged the individual defendants, as employees of the City, conspired to deprive him of his employment, to deprive him of a Board hearing and to bring criminal charges against him. We believe the trial court erroneously denied defendants\u2019 motion as applied to this claim.\nPlaintiff correctly states that a civil conspiracy claim consists of an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way, which agreement resulted in injury to the plaintiff. Stewart v. Kopp, 118 N.C. App. 161, 165, 454 S.E.2d 672, 675, disc. review denied, 340 N.C. 263, 456 S.E.2d 838 (1995). However, \u201c[a] municipality as such may not ordinarily be a party to a conspiracy.\u201d 18 McQuillin \u00a7 53.13 at 222; see also Charlton v. City of Hialeah, 188 F.2d 421, 422 (5th Cir. 1951) (\u201c[i]t is easy to understand how officers exercising the authority delegated to a town or city might, in their individual capacity, be a party to a conspiracy; but a municipal corporation, which is limited by law to the purposes and objects of its creation . . . cannot in its sovereign or municipal capacity be a party to a conspiracy\u201d). Plaintiff\u2019s complaint contained no allegation the asserted conspiracy fell outside the general rule. Similarly, because a claim against persons in their official capacities is essentially one against the state for purposes of applying governmental immunity, Dickens, 110 N.C. App. at 45, 429 S.E.2d at 180, such persons in their official capacities also cannot ordinarily be parties to a conspiracy. We therefore reverse the trial court\u2019s denial of defendants\u2019 motion on this claim.\nPrior to concluding, we note plaintiff\u2019s brief discusses twelve claims for relief. The twelfth claim was added in an amended complaint allowed by order entered 6 September 1996 and filed 9 September 1996. The instant appeal is from denial of defendants\u2019 motion in an order entered 3 September 1996 and filed 6 September 1996. Plaintiff\u2019s twelfth claim thus was not before the trial court at the time of the order from which defendants appeal. Arguments addressed to that claim therefore are not properly before us, and we do not address them.\nTo summarize, the trial court\u2019s denial of defendants\u2019 motion with respect to plaintiff\u2019s claims of wrongful termination, breach of contract against the City, malicious prosecution, false arrest, negligent supervision and negligent retention is affirmed. Denial of the motion regarding plaintiff\u2019s claims of breach of contract against the individual defendants sued in their official capacities, and against defendants for libel and slander, violation of \u00a7 1983, violation of G.S. \u00a7 160A-168, blacklisting and civil conspiracy is reversed.\nAffirmed in part, reversed in part.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Eisele & Ashburn, P.A., by John D. Greene, for plaintiff - appellee.", "Womble Carlyle Sandridge & Rice, by Allan R. Gitter and Jack M. Strauch, for defendants-appellants." ], "corrections": "", "head_matter": "PRESTON GENE HOUPE, Plaintiff v. CITY OF STATESVILLE, a municipal corporation; JACK KING, in his official capacity as City Manager; ROBERT WARSHAW, individually and in his former official capacity as Chief of Police; DALTON Z. BROWN, in his official Cacpacity as Assistant Chief of Police and formerly Acting Chief of Police; EDWARD JARVIS, individually and in his official capacity as Lieutenant and formerly as Acting Assistant Chief of Police; GREGORY STONE, in his official capacity as an Internal Affairs Investigator, and MICHAEL GRANT, in his official capacity as a criminal investigator, Defendants\nNo. COA96-1272\n(Filed 20 January 1998)\n1. Municipal Corporations \u00a7 413 (NCI4th)\u2014 police officers\u2014 investigation and discipline \u2014 governmental function\nThe actions of the City and its officials in investigating and disciplining a police officer who was accused of criminal activity were within the rubric of \u201cgovernmental functions\u201d for governmental immunity.\n2. Municipal Corporations \u00a7 445 (NCI4th)\u2014 police officer\u2014 wrongful termination \u2014 waiver of immunity \u2014 insurance exclusionary clause\nIn an action by a police officer for wrongful termination, the trial court did not err in denying defendants\u2019 motion for judgment on the pleadings where one of the City\u2019s two insurance clauses excluded emotional distress and mental anguish and plaintiff admitted in interrogatories that he sought recovery on those bases. Consideration of interrogatories is not proper in a motion for judgment on the pleadings and the record does not reflect the trial court\u2019s consideration of interrogatories; moreover, in view of the requirement that insurance exclusions be strictly construed, it cannot be concluded that defendants clearly demonstrated that governmental immunity was not waived by purchase of that policy.\n3. State \u00a7 27 (NCI4th)\u2014 dismissal of police officer \u2014 breach of contract \u2014 sovereign immunity \u2014 not applicable\nThe trial court did not err in denying defendants\u2019 motion for judgment on the pleadings as to a breach of contract claim where the complaint alleged that the City\u2019s charter, ordinances and written policies created an agreement whereby plaintiff would not be terminated except for \u201cgood cause.\u201d Sovereign immunity is not applicable to breach of contract claims and plaintiff met this requirement by alleging that the City\u2019s charter, ordinances and written polices created an agreement; whether the charter, ordinances and written policies became a part of the contract is not an issue properly adjudicated on the pleadings.\n4. Municipal Corporations \u00a7 453 (NCI4th)\u2014 police officer \u2014 dismissal\u2014employment contract \u2014 judgment on the pleadings\nThe trial court erred in an action arising from the dismissal of a police officer by denying defendants\u2019 motion for judgment on the pleadings as to breach of contract claims with respect to the individual defendants where plaintiff alleged that the City and not the individuals had hired him.\n5.,Municipal Corporations \u00a7 445 (NCI4th)\u2014 dismissal of police officer \u2014 libel and slander action \u2014 not covered by insurance \u2014 immunity not waived\nGovernmental immunity was not waived by the City\u2019s purchase of two insurance policies and the trial court erred by denying defendants\u2019 motion for judgment on the pleadings as to claims for libel and slander per se against defendant Jarvis in his official capacity arising from the dismissal of a police officer where Jarvis, in his role as a supervisor, prepared and disseminated a memo which contained defamatory statements. One policy excludes claims for libel and slander and the other excludes coverage for employment-related defamation.\n6. Libel and Slander \u00a7 26 (NCI4th)\u2014 slander \u2014 grand jury testimony \u2014 privileged\nThe trial court erred in an action arising from the dismissal of a police officer by denying defendants\u2019 motion for judgment on the pleadings regarding plaintiff police officer\u2019s slander claim against defendant police officer Grant arising from Grant\u2019s grand jury testimony. Defamatory statements made by a witness in a judicial proceeding fall within the absolute privilege rule.\n7. Municipal Corporations \u00a7 445 (NCI4th)\u2014 dismissed police officer \u2014 malicious prosecution and false arrest claims\u2014 governmental immunity \u2014 insurance exclusion \u2014 employment claims\nThe trial court properly denied defendants\u2019 motion for judgment on the pleadings as to plaintiff police officer\u2019s malicious prosecution and false arrest claims where the claims against the City and its police officers were not precluded by governmental immunity since one of the City\u2019s insurance policies excludes claims arising out of and in the course of employment but plaintiff\u2019s complaint alleged that the events constituting his injuries happened when he was no longer employed by the City.\n8. Municipal Corporations \u00a7 445 (NCI4th)\u2014 dismissal of police officer \u2014 immunity\u2014insurance exclusion \u2014 operational law enforcement\nThe trial court did not err by denying defendants\u2019 motion for judgment on the pleadings on a claim for negligent supervision and negligent retention against the City and several of its police officers where governmental immunity was not waived. One of defendant\u2019s insurance policies excluded causes of action arising out of \u201coperational law enforcement function\u201d but did not provide a definition for the terminology. Exclusionary clauses are strictly construed to provide coverage and defendants did not show that they are entitled to judgment as a matter of law.\n9. Constitutional Law \u00a7 85 (NCI4th)\u2014 dismissal of police officer \u2014 \u00a7 1983 claim \u2014 custom or policy of city not alleged\nThe trial court erred in denying defendants\u2019 motion for judgment on the pleadings as to a 42 U.S.C.\u00a7 1983 claim arising from the dismissal of a police officer where plaintiff failed to allege that he was harmed pursuant to a custom or policy of the defendant City.\n10. Municipal Corporations \u00a7 360 (NCI4th)\u2014 dismissal of police officer \u2014 violation of N.C.G.S. \u00a7 160A-168 \u2014 not a civil action\nThe trial court erred in an action arising from the dismissal of a police officer by denying defendants\u2019 motion for judgment on the pleadings as to plaintiff\u2019s claim that two of the defendants violated N.C.G.S. \u00a7 160A-168 by publishing information from an Internal Affairs investigation to other officers. That statute does not create a civil cause of action.\n11. Labor and Employment \u00a7 90 (NCI4th)\u2014 dismissed police officer \u2014 N.C.G.S. \u00a7 14-355 \u2014 punitive damages claim against City \u2014 judgment on the pleadings\nThe trial court erred by denying defendants\u2019 motion for judgment on the pleadings in an action alleging that a police chief intentionally interfered with plaintiff\u2019s employment opportunities by written and oral publication of false and erroneous information in violation of N.C.G.S. \u00a7 14-355. The statute clearly authorizes a cause of action for \u201cpenal,\u201d or punitive damages, a cause of action against an officer in his official capacity is essentially a claim against the City, and punitive damages may not be recovered against a municipality absent statutory authorization.\n12. Municipal Corporations \u00a7 413 (NCI4th)\u2014 dismissal of police officer \u2014 conspiracy\u2014municipal corporation \u2014 not a party\nThe trial court erred in an action arising from a police officer\u2019s dismissal by denying defendants\u2019 motion for judgment on the pleadings as to plaintiffs\u2019s claim that defendants as employees conspired to deprive him of his employment, to deprive him of a Board hearing and to bring criminal charges against him. A cause of action against an officer in his official capacity is essentially a claim against the City, the general rule is that an municipal corporation cannot in its sovereign or municipal capacity be a party to a conspiracy, and plaintiff\u2019s complaint did not contain an allegation that the asserted conspiracy fell outside this general rule.\nAppeal by defendants from order filed 6 September 1996 by Judge Zoro J. Guice, Jr., in Iredell County Superior Court. Heard in the Court of Appeals 21 May 1997.\nEisele & Ashburn, P.A., by John D. Greene, for plaintiff - appellee.\nWomble Carlyle Sandridge & Rice, by Allan R. Gitter and Jack M. Strauch, for defendants-appellants." }, "file_name": "0334-01", "first_page_order": 370, "last_page_order": 388 }