{ "id": 6768192, "name": "TIMOTHY BLAKELEY, Plaintiff v. TOWN OF TAYLORTOWN, NORTH CAROLINA; a municipal corporation, Defendant", "name_abbreviation": "Blakeley v. Town of Taylortown", "decision_date": "2014-04-15", "docket_number": "No. COA13-853", "first_page": "441", "last_page": "454", "citations": [ { "type": "official", "cite": "233 N.C. App. 441" } ], "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": "611 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632630 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "221" }, { "page": "221-22", "parenthetical": "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\"" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0217-01" ] }, { "cite": "670 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642371 ], "year": 2009, "pin_cites": [ { "page": "306", "parenthetical": "wrongful discharge in violation of public policy is a tort claim" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0302-01" ] }, { "cite": "631 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636049 ], "year": 2006, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0114-01" ] }, { "cite": "652 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639683 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "282" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0277-01" ] }, { "cite": "511 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237671 ], "year": 1999, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0307-01" ] }, { "cite": "141 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "246" } ], "opinion_index": 0 }, { "cite": "264 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571705 ], "year": 1965, "pin_cites": [ { "page": "156-57" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0149-01" ] }, { "cite": "690 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "723", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175593 ], "year": 2010, "pin_cites": [ { "page": "80", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0075-01" ] }, { "cite": "557 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138507 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0568-01" ] }, { "cite": "551 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437314 ], "year": 2001, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0314-01" ] }, { "cite": "359 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "44" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12138476 ], "year": 1987, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0613-01" ] }, { "cite": "193 S.E. 267", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "268", "parenthetical": "\" Actual damages' are synonymous with 'compensatory damages' and with 'general damages.' Damages for mental suffering are actual or compensatory. They are not special nor punitive, and are given to indemnify the plaintiff for the injury suffered.\"" } ], "opinion_index": 0 }, { "cite": "212 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610741 ], "year": 1937, "pin_cites": [ { "page": "371", "parenthetical": "\" Actual damages' are synonymous with 'compensatory damages' and with 'general damages.' Damages for mental suffering are actual or compensatory. They are not special nor punitive, and are given to indemnify the plaintiff for the injury suffered.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0369-01" ] }, { "cite": "516 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "350 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132071 ], "year": 1999, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0621-01" ] }, { "cite": "752 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "706", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 776", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473621 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "780" }, { "page": "780" }, { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0776-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "437 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520443 ], "year": 1993, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0001-01" ] }, { "cite": "86 A.L.R.5th 397", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "year": 2001, "opinion_index": 0 }, { "cite": "547 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434189 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0228-01" ] }, { "cite": "279 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170477 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0579-01" ] }, { "cite": "194 N.C. App 674", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162645 ], "year": 2009, "pin_cites": [ { "page": "678", "parenthetical": "wrongful discharge in violation of public policy is a tort claim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0674-01" ] }, { "cite": "412 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "102-103", "parenthetical": "\"tort claim alleging wrongful discharge\"" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 652", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523555 ], "year": 1991, "pin_cites": [ { "page": "662", "parenthetical": "\"tort claim alleging wrongful discharge\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0652-01" ] }, { "cite": "311 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "310 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396078 ], "year": 1984, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0184-01" ] }, { "cite": "360 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795905 ], "year": 2006, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0518-01" ] }, { "cite": "515 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "441" }, { "page": "441", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132244 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "571" }, { "page": "571", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0567-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "year": 1985, "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, "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "182 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "279 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566604 ], "year": 1971, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0254-01" ] }, { "cite": "750 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "565" }, { "page": "565" } ], "opinion_index": 0 }, { "cite": "480 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "345 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53948 ], "year": 1997, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0480-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "187 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371895 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0071-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-226", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-230", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 } ], "analysis": { "cardinality": 1179, "char_count": 33996, "ocr_confidence": 0.7, "pagerank": { "raw": 5.996710541164124e-08, "percentile": 0.37263176347346894 }, "sha256": "1166d0540794111706c01dd787a288aaa021688f707cba4ef74fa52095436f37", "simhash": "1:8debd42e36df97fe", "word_count": 5409 }, "last_updated": "2023-07-14T17:57:00.832613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and McCULLOUGH concur." ], "parties": [ "TIMOTHY BLAKELEY, Plaintiff v. TOWN OF TAYLORTOWN, NORTH CAROLINA; a municipal corporation, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant the Town of Taylortown (\u201cthe Town\u201d or \u201cdefendant\u201d) 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 review, we reverse the order denying defendant\u2019s motion to amend the verdict and remand for the trial court to reduce the jury\u2019s verdict by $5,886.97. As to all other bases for defendant\u2019s motions, we find no error.\nBackground\nThis action arises out of the termination of plaintiff Timothy Blakeley (\u201cplaintiff\u2019 of \u201cChief Blakeley\u201d) 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., (\u201cMayor Barrett\u201d) regarding the Town\u2019s use of a Cushman ATV (\u201cthe ATV\u201d) 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\u2019s home. The next day, plaintiff received a \u201cwrite-up\u201d for failing to follow the chain 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.\nIn 2006, plaintiff was contacted by the North Carolina State Bureau of Investigation (\u201cthe SBI\u201d) 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 \u201csubstantially and materially changed.\u201d\nOn 29 August 2006, Mayor Barrett sent plaintiff a written memo informing him that plaintiff\u2019s 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.\nDuring plaintiff\u2019s 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 \u201cconstantly]\u201d and \u201con a continuous basis.\u201d 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\u2019s report to the Board, Chief Blakeley contended that he provided them all the \u201clegally permissible information\u201d 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.\nOn 31 October 2006, Mayor Barrett wrote a memo criticizing plaintiff\u2019s record and claiming that he had no confidence in plaintiff\u2019s 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 2007, the Board met again to consider a resolution to terminate plaintiff\u2019s 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.\nOn 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\u2019s 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\u2019s 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\u2019s motion for judgment on the pleadings. On 10 June 2011, defendant moved for summary judgment as to plaintiff\u2019s remaining claim for wrongful discharge. This motion was denied in open court on 27 June 2011 by Judge James M. Webb.\nThe 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 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. \u00a7 14-230, which prohibits a public official from refusing to discharge his duties; and (2) N.C. Gen. Stat. \u00a7 14-226(a), which prohibits the intimidation or interference with witnesses. The jury was asked to answer four issues: (1) Was the plaintiffs refusal to participate in conduct which violated public policy a substantial factor in the defendant\u2019s 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\u2019s 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.\nOn 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, 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\u2019s inflammatory and prejudicial statements during trial, and because the jury\u2019s award of damages was excessive.\nOn 16 March 2012, Judge Webb issued an order, among other things: (1) denying plaintiff\u2019s motion for equitable relief in the form of front pay; (2) denying defendant\u2019s 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.\nStandard of Review\nOn appeal, when defendants move for a new trial pursuant to Rule 59(a)(5), (6), and (7), a trial court\u2019s decision \u201cmay be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.\u201d 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). \u201cAn appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997). However, we review the trial court\u2019s 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).\nArguments\nI. Defendant\u2019s Motion to Amend the Verdict\nFirst, 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\u2019s award was 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\u2019s failure to mitigate his damages.\nThe only claim submitted to the jury was plaintiff\u2019s 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). \u201cAn employer wrongfully discharges an at-will employee if the termination is done for an unlawful reason or purpose that contravenes public policy.\u201d Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 571, 515 S.E.2d 438, 441 (1999).\nAt 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 \u201cthat 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[.]\u201d The trial court went on to state that actual damages could include future losses. Defendant contends that the trial court\u2019s inclusion of future lost wages and emotional distress damages in the measure of plaintiff\u2019s actual damages constituted error.\nPursuant to Rule 59(a)(8) (\u201c[e]rror in law occurring at the trial and objected to by the party making the motion\u201d), 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 discharge is entitled to these traditional types of tort damages.\nInitially, it should be noted that \u201c[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.\u201d 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.\nWhile 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) (\u201ctort claim alleging wrongful discharge\u201d); 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 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 award plaintiff both emotional distress damages and damages for future lost wages.\nIn support of its argument, defendant contends that the tort of wrongful discharge is more similar to a claim of intentional infliction of emotional distress (\u201cIIED\u201d) and negligent infliction of emotional distress (\u201cNIED\u201d) than other types of torts. Accordingly, defendant argues that because plaintiff failed to show \u201cextreme and outrageous\u201d conduct by defendant or \u201csevere emotional distress,\u201d he did not meet the \u201cstringent standard\u201d required for emotional distress recovery. However, defendant\u2019s 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 \u201cextreme and outrageous conduct,\u201d which caused \u201csevere emotional distress.\u201d 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 \u201csevere emotional distress.\u201d 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 \u201cpain and suffering\u201d damages, is a \u201cbasis for recovery.\u201d Iadanza v. Harper, 169 N.C. App. 776, 780, 611 S.E.2d 217, 221 (2005). \u201cMoreover, physical injury is only one aspect of \u2018pain and suffering,\u2019 which also may include emotional suffering[.]\u201d 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 \u201cthe psychological component of damages for \u2018pain and suffering\u2019 must meet the same standard as the element of \u2018severe emotional distress\u2019 that is part of claims for infliction of emotional distress\u201d). Thus, plaintiff was not required to show either \u201csevere emotional distress\u201d or \u201cextreme and outrageous conduct\u201d by defendant to be awarded emotional distress or pain and suffering damages.\nNext, defendant contends that the trial court erred in not granting his motion to amend the verdict because the jury \u201cmanifestly disregarded\u201d 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).\nOur review of this issue on appeal is abuse of discretion. Greene, 187 N.C. App. at 78, 652 S.E.2d at 282.\nHere, 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,\u2019 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.\nWhile defendant claims that the jury \u201cmanifestly disregarded\u201d the instructions in awarding these types of damages, as discussed above, these types of traditional tort 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 \u201cmanifestly disregarded\u201d the instructions. Furthermore, although it is unclear exactly how the jury reached its overall figure, the jury\u2019s verdict was consistent with plaintiff\u2019s 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\u2019s motion to amend the verdict pursuant to Rule 59(a) (5) and (6).\nAdditionally, defendant contends that the jury disregarded the trial court\u2019s instructions because they did not reduce the award based on plaintiff\u2019s 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.\n\u201cUnder the law in North Carolina, an injured plaintiff must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant\u2019s wrong. If plaintiff fails to mitigate his damages, for any part of the loss incident to such failure, no recovery can be had.\u201d Lloyd v. Norfolk Southern Railway Co.,_N.C. App._,_, 752 S.E.2d 704, 706 (2013) (internal quotation marks omitted).\nAt trial, the court instructed the jury that plaintiff\u2019s damages must be reduced by the amount which he could have earned from similar employment using reasonable diligence and that \u201creasonable diligence requires that an employee seek and accept similar employment in the same locality.\u201d Given the testimony at trial concerning plaintiff\u2019s attempts to find new employment, defendant\u2019s 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\u2019s 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.\nNext, 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.\nAt trial, plaintiff\u2019s 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, t\u00edre trial court abused its discretion in denying defendant\u2019s 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\u2019s motion to amend on this basis and remand to the trial court to reduce the verdict by $5,886.97 \u2014 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.\nII. Defendant\u2019s Motion for a New Trial\nNext, 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\u2019s 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\u2019s statements during closing argument were highly inflammatory and prejudicial.\nAs noted above, we review the trial court\u2019s denial of defendant\u2019s 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).\nWith regard to defendant\u2019s 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) (\u201c Actual damages\u2019 are synonymous with \u2018compensatory damages\u2019 and with \u2018general damages.\u2019 Damages for mental suffering are actual or compensatory. They are not special nor punitive, and are given to indemnify the plaintiff for the injury suffered.\u201d) (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, \u201c[c]ompensatoiy damages provide recovery for, inter alia, mental or physical pain and suffering, lost wages and medical expenses.\u201d 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\u2019s argument that \u201cactual damages\u201d do not include emotional distress damages and damages for future lost wages is without merit.\nNext, 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.\nTo state a claim for wrongful discharge in violation of public policy, an employee has the burden of showing that his \u201cdismissal occurred for a reason that violates public policy.\u201d Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551 S.E.2d 179, 181, aff\u2019d per curiam, 354 N.C. 568, 557 S.E.2d 528 (2001). However, \u201csomething more than a mere statutory 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.\u201d Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 571, 515 S.E.2d 438, 441 (1999) (internal quotation marks omitted).\nWhile 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\u2019s request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy.\nCombs v. City Elec. Supply Co., 203 N.C. App. 75, 80, 690 S.E.2d 719, 723 (2010) (internal quotation marks omitted).\nContrary to defendant\u2019s 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. Gen. Stat. \u00a7 14-230. N.C. Gen. Stat. \u00a7 14-230 provides, in pertinent part that \u201c[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.\u201d Initially, we note that \u201ca 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. \u00a7 14-230[.]\u201d 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.\nPlaintiff testified that he was repeatedly asked by members of the Town Council to provide confidential information on \u201can ongoing basis.\u201d 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 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. \u00a7 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.\nFinally, defendant contends that the trial court erred in denying his motion for a new trial based on plaintiff counsel\u2019s inflammatory and prejudicial remarks during closing arguments.\nSince defendant did not object at trial to these remarks, where a party fails to object during closing arguments, \u201cour 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.\u201d O\u2019Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 315, 511 S.E.2d 313, 319 (1999).\nIn its brief, defendant cites several statements made by plaintiff counsel that it characterized as grossly improper. We agree with defendant that those statements made by plaintiffs 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.\nConclusion\nWith regard to defendant\u2019s motion to amend the verdict based on the jury\u2019s 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\u2019s motion to amend the verdict and motion for a new trial, we find no error.\nREVERSED AND REMANDED IN PART; NO ERROR IN PART.\nJudges GEER and McCULLOUGH concur.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "The McGuinness Law Firm, by J. Michael McGuinness, and John W. Roebuck for plaintiff-appellee.", "CranjUl Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., and Patrick H. Flanagan for defendant-appellant.", "Amicus curiae brief submitted by Narron, O\u2019Hale and Whittington, P.A., by John P. O\u2019Hale, for the Southern States Police Benevolent Association and the North Carolina Police Benevolent Association." ], "corrections": "", "head_matter": "TIMOTHY BLAKELEY, Plaintiff v. TOWN OF TAYLORTOWN, NORTH CAROLINA; a municipal corporation, Defendant\nNo. COA13-853\nFiled 15 April 2014\n1. Damages and Remedies \u2014 termination of employment \u2014 emotional distress\nThe trial court did not err by instructing the jury that it could award plaintiff both emotional distress damages and damages for future lost wages in an action arising from the termination of a police chiefs at-will employment. There is a difference when emotional distress is a required element of a claim and when it is a type of damage. Plaintiff was not required to show either \u201csevere emotional distress\u201d or \u201cextreme and outrageous conduct\u201d by defendant to be awarded emotional distress or pain and suffering damages.\n2: Damages and Remedies \u2014 jury\u2019s methodology not clear \u2014 consistent with evidence\nDefendant was unable to meet its burden of showing that the trial court abused its discretion in denying defendant\u2019s motion to amend the verdict pursuant to Rule 59(a)(5) and (6) in an action arising from the dismissal of an at-will police chief. Although it was unclear exactly how the jury reached its overall figure, the jury\u2019s verdict was consistent with plaintiff\u2019s evidence, and defendant failed to show that the award was so excessive that it could have only resulted from passion or prejudice.\n3. Damages and Remedies \u2014 mitigation\u2014reasonable care and diligence\nIn an action arising from the dismissal of a police chief, the trial court did not abuse its discretion in denying defendant\u2019s motion to amend the verdict based on plaintiff\u2019s failure to mitigate his damages where the evidence clearly established that plaintiff used reasonable care and diligence when trying to find a new job.\n4. Damages and Remedies \u2014 discharge from employment\u2014 amount earned after discharge\nIn an action arising from the termination of an at-will police chief\u2019s employment, the trial court abused its discretion by denying defendant\u2019s motion to amend the verdict with regard to the amount plaintiff earned after his employment with the town ended.\n5. Damages and Remedies \u2014 compensatory damages \u2014 emotional distress included\nIn an action arising from the termination of an at-will police chiefs employment, defendant\u2019s argument that \u201cactual damages\u201d do not include emotional distress damages and damages for future lost wages was without merit. Compensatory and actual damages are synonymous and compensatory damages include emotional distress and lost wages.\n6. Police Officers \u2014 termination of employment \u2014 refusal to provide information\nIn an action arising from the termination of an at-will police chiefs employment, the evidence was sufficient to go to the jury on the issue of whether plaintiff was discharged based on his refusal to provide town officials with confidential information on the status of ongoing drug cases. There is a difference between being asked on the progress of the drug cases versus being asked to provide information about confidential informants.\n7. Criminal Law \u2014 closing argument \u2014 improper remarks\u2014 not prejudicial\nThere was no gross impropriety requiring intervention ex mero motu in plaintiff\u2019s closing arguments in an action arising from the termination of a police chief\u2019s at-will employment. Statements that characterized the Town and at-will employment in an unflattering way and highly inflammatory remarks about the mayor, among others, were improper, but not so prejudicial as to entitle defendant to a new trial.\nAppeal 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.\nThe McGuinness Law Firm, by J. Michael McGuinness, and John W. Roebuck for plaintiff-appellee.\nCranjUl Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., and Patrick H. Flanagan for defendant-appellant.\nAmicus curiae brief submitted by Narron, O\u2019Hale and Whittington, P.A., by John P. O\u2019Hale, for the Southern States Police Benevolent Association and the North Carolina Police Benevolent Association." }, "file_name": "0441-01", "first_page_order": 451, "last_page_order": 464 }