NO. COA02-1656

NORTH CAROLINA COURT OF APPEALS

Filed: 20 April 2004

    Appeal by defendants from judgment entered 28 August 2002 by Judge Jesse B. Caldwell in Gaston County Superior Court. Heard in the Court of Appeals 15 October 2003.

    J. Thomas Hunn and William A. Anthony, III for plaintiff- appellee.

    Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Robert D. Mason, Jr., for defendant-appellants Jim Hope and City of Mt. Holly.

    Hedrick Eatman Gardner & Kincheloe, LLP, by Kevin P. Collins     for defendant-appellant J.B. Davis.

    STEELMAN, Judge.

    Defendants, Jim Hope, J.B. Davis, and the City of Mount Holly, appeal denials of their motions for summary judgment based ongovernmental immunity. For the reasons discussed herein, we affirm
in part and reverse in part.
    Plaintiff, William Hope, is the father of defendant, Jim Hope. For years there has been a strained relationship between father and son. Jim Hope was, at all times relevant to this case, an elected councilman of the City of Mount Holly, in Gaston County. Defendant Davis was employed by the City of Mount Holly as a police officer.
    Discovery in this case reveals two different versions of events, which transpired on 3 June 2000. Defendants' version of the events is as follows: Jim Hope's daughter was to be married at the Second Baptist Church in Mount Holly on 3 June 2000. Plaintiff was not invited to the wedding, but learned of it from an announcement in a local newspaper. Upon learning of the wedding, plaintiff became upset and made statements to family members that he intended to disrupt his granddaughter's wedding. Jim Hope contacted the Mt. Holly Police Department and discussed with them his concerns that plaintiff would attempt to disrupt his daughter's wedding. As a result of these conversations, police officers were in the vicinity of the church at the scheduled time of the wedding.
    Plaintiff's version of the events of 3 June 2000 is quite different. He denies threatening to disrupt the wedding and contends he was attempting to locate and purchase a burial plot in a cemetery located near the Second Baptist Church in Mt. Holly. Plaintiff happened to go to the cemetery on 3 June 2000, at the approximate time of his granddaughter's wedding to view the plot. Police arrested plaintiff and charged him with trespass. Plaintiff asserts he was not on church property at the time of his arrest. These charges were subsequently dismissed.
    On 22 August 2001, plaintiff filed a complaint in this action, alleging the individual defendants conspired to have him arrested. The complaint seeks monetary damages for trespass to the person, malicious prosecution, unlawful arrest and restraint, and intentional infliction of emotional distress. The complaint also seeks punitive damages from the individual defendants and compensatory damages from the City of Mount Holly for negligent supervision and ratification of the actions of the individual defendants.
    Each of the defendants filed motions for summary judgment seeking dismissal of plaintiff's claims based upon governmental immunity. The trial court denied each of these motions. In their sole assignment of error, defendants argue the trial court erred in denying their motion for summary judgment. We reverse the trial court in part, and affirm in part.
    An order denying a motion for summary judgment is interlocutory and generally not appealable. Campbell v. Anderson, 156 N.C. App. 371, 374, 576 S.E.2d 726, 728 (2003), disc. rev.denied, 357 N.C. 457, 585 S.E.2d 385 (2003). However, where the motion is based upon a defense of sovereign immunity, our courts have held that a substantial right is affected and immediate appellate review is warranted. Id. (citing Peverall v. County of Alamance, 154 N.C. App. 426, 429, 573 S.E.2d 517, 519 (2002), disc. rev. denied, 356 N.C. 676, 577 S.E.2d 632 (2003)). Thus, the only matters properly before this Court are those involving sovereign immunity.
    Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). The moving party bears the burden of demonstrating the lack of triable issues of fact. Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). Once the movant satisfies its burden of proof, the burden then shifts to the non-movant to present specific facts showing triable issues of material fact. Lowe v. Bradford, 305 N.C. 366, 369-70, 289 S.E.2d 363, 366 (1982). On appeal from summary judgment, we review the record before us in the light most favorable to the non-movant. Bradley v. Hidden Valley Transp., Inc., 148 N.C. App. 163, 165, 557 S.E.2d 610, 612 (2001), aff'd per curiam, 355 N.C. 485, 562 S.E.2d 422 (2002).    Defendants, Hope and Davis, argue that the claims against them in their official capacities are barred by sovereign or governmental immunity.
    In evaluating governmental immunity claims, we must first determine whether the defendants are being sued in their individual capacity, official capacity, or both. Generally a plaintiff will designate in the caption of their complaint in what capacity a defendant is being sued. Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). However, the caption alone is not determinative of whether a defendant is actually being sued in their individual or official capacity, or both. Id. Thus, we must examine the complaint in its entirety to determine the true nature of the claim. Id. If the plaintiff does not assert any claims in their complaint except those relating to a defendant's official duties, the complaint does not state a claim against a defendant in their individual capacity. Id. at 607-08, 436 S.E.2d at 279.
    After review of the complaint as a whole, we hold plaintiff has asserted claims against both defendants in their individual and official capacities. The caption of the complaint states plaintiff is suing both defendants in their individual and official capacities. Plaintiff's complaint states in several places that all defendants were acting within the scope of theirresponsibilities and/or employment as a city official and police officer. However, there are other places where plaintiff alleges defendants' conduct individually was “wanton, and/or in reckless disregard of and with indifference to Plaintiff's rights....” Based on our review of the record and briefs, we find that plaintiff has sued both defendants in their individual and official capacities.

I. Governmental Immunity

    Generally, governmental immunity protects a municipality and its officers or employees sued in their official capacity for torts committed while performing a governmental function. Taylor, 112 N.C. App. at 607, 436 S.E.2d at 278. However, “[a] governmental entity may waive immunity by the purchase of liability insurance, thereby subjecting itself to liability for the tortious acts of its officers and employees.” Sellers v. Rodriguez, 149 N.C. App. 619, 623, 561 S.E.2d 336, 339 (2002) (citations omitted); N.C. Gen. Stat. § 160A-485(a) (2001). Nevertheless, “[i]mmunity [is] waived only to the extent that the city is indemnified by the insurance contract from tort liability.” N.C. Gen. Stat. § 160A-485 (2003). A plaintiff asserting claims against a governmental entity and its employees acting in their official capacities must allege that the officials have waived their governmental immunity or otherwise consented to suit. Id. It should also be noted that plaintiff'sofficial capacity claims against defendants, Jim Hope and J.B. Davis, are in reality a suit against the City of Mount Holly. See Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 725 (1998) (noting official-capacity suits are another way of pleading an action against the governmental entity).
    A. Defendant Jim Hope in His Official Capacity
    Defendant Hope contends that at the time of the incident, the city maintained a Public Officials Liability Policy, which was the only policy the city maintained for lawsuits against public officials. An insured under this policy included elected officials, such as Jim Hope, who were members of “commissions, boards or other units operated by and under the jurisdiction of such NAMED INSURED while acting within the scope of their duties for the NAMED INSURED....” This policy was a “claims-made” policy, in which the insurer agreed to only pay claims “resulting from a WRONGFUL ACT but only with respect to CLAIMS first made against the INSURED during the POLICY PERIOD.” This policy became effective 1 July 2000 and expired after one year, on 1 July 2001. This suit was filed on 22 August 2001. Based on the record before us, there was no policy of insurance when the claim was made. Thus, this policy cannot be the basis of any waiver of governmental immunity.
    We then turn to the provisions of the Law Enforcement Policy to determine whether defendant Hope was an “insured” under thatpolicy.
    The Law Enforcement Policy defines an “Insured” as: “All full- or part-time employees of the NAMED INSURED and all persons who were, now are, or shall be lawfully elected, appointed or employed officials of the NAMED INSURED with respect to liability arising out of LAW ENFORCEMENT ACTIVITIES.” (emphasis added). Plaintiff contends this language provided liability coverage for Jim Hope because he was an elected member of the city council. This interpretation is incorrect. The law enforcement policy defines “law enforcement activities” as “[t]hose activities conducted by the NAMED INSURED'S Law Enforcement Department or Agency shown under Item 7 of the Declarations ....” Item 7 of the declarations only identifies the “City of Mount Holly Police Department” as the law enforcement agency covered by the policy.
    Even considering the facts in the light most favorable to plaintiff, Jim Hope was not engaged in law enforcement activities. While he was an elected councilman of the City of Mt. Holly, there was no evidence he was a full or part-time employee of the city, or an elected, appointed or employed official of the city with respect to law enforcement activities. Jim Hope, in his official capacity, was not an insured under the Law Enforcement Liability Policy, thus the policy provided no coverage for plaintiff's claims against Jim Hope in his official capacity.     Jim Hope, and thus, the City of Mount Holly are entitled to governmental immunity as to plaintiff's official capacity claims against Jim Hope, and the trial court erred in not dismissing these claims.
    B. J.B. Davis In His Official Capacity
    As to defendant Davis in his official capacity, defendants acknowledge he was an insured under the Law Enforcement Liability Policy, but contend there is no coverage by virtue of an exclusion contained in the policy. When insurance is present, but a claim of governmental immunity is raised based on an asserted exclusion from coverage, plaintiff's claims must be analyzed to determine whether the alleged conduct is covered under the terms of the policy. Dawes v. Nash County, 357 N.C. 442, 448-49, 584 S.E.2d 760, 764 (2003).
    The provision which defendant relies on to demonstrate exclusion from coverage reads as follows:
        The Company shall not be obligated to make any payment nor to defend any SUIT in connection with any claim made against the INSURED: ...
        2. Arising out of the deliberate violation of any federal, state or local statute, or ordinance, rule, or regulation committed by or with the knowledge and consent of the INSURED;

Defendant's reliance on this exclusion is incorrect, as plaintiff does not assert violations of any specific statutes, but bringscommon law claims. Defendant asserts that the gravamen of each of plaintiff's claims is that defendant's Hope and Davis agreed to have plaintiff unlawfully arrested and detained. Defendant alleges this act was in violation of N.C. Gen. Stat. § 15A-401, thus excluding coverage under the provision listed above. This argument is unpersuasive as N.C. Gen. Stat. § 15A-401 is merely the general arrest statute. Plaintiff has shown that defendants, J.B. Davis and the City of Mount Holly, have waived governmental immunity by the purchase of liability insurance. However, defendants have failed to demonstrate that an exclusion in that policy is applicable. Thus, the trial court properly denied summary judgment as to plaintiff's claims against J.B. Davis in his official capacity.

II. Public Officer's Immunity

    As to the claims against defendants in their individual capacities, the public officers' immunity doctrine shields public officials from personal liability in their individual capacity for mere negligence in the performance of their duties. Schlossberg v. Goins, 141 N.C. App. 436, 445, 540 S.E.2d 49, 56 (2000), disc. rev. denied, 355 N.C. 215, 560 S.E.2d 136 (2002). Public officers however, may be held liable if their actions were corrupt or malicious or if they acted outside and beyond the scope of their duties. Id. Therefore, to withstand a public officer's motion forsummary judgment on the issue of individual capacity, plaintiff “must allege and forecast evidence demonstrating the officers acted maliciously, corruptly, or beyond the scope of duty.” Prior v. Pruett, 143 N.C. App. 612, 623, 550 S.E.2d 166, 173-74 (2001), disc. rev. denied, 355 N.C. 493, 563 S.E.2d 572 (2002).
    “Mere allegations of malice without more are insufficient to overcome a motion for summary judgment.” Slade v. Vernon, 110 N.C. App. 422, 428, 429 S.E.2d 744, 747 (1993). To survive a motion for summary judgment, an adverse party “must set forth specific facts showing there is a genuine issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e). If the adverse party merely relies on the allegations in his complaint, it is appropriate for summary judgment to be entered against him. Id.
    In his complaint, plaintiff alleged defendant Jim Hope acted “knowingly” and “falsely, with bad intent,” and that both Jim Hope and J.B. Davis, individually, acted “wanton[ly], and/or in reckless disregard of, and with indifference to the Plaintiff's rights.” However, plaintiff failed to provide specific facts in support of these allegations, instead relying solely on those allegations in his complaint. Without more, plaintiff's naked assertion that defendants conspired to arrest him, is not a sufficient forecast of evidence to withstand a motion for summary judgment. Thus, we find the trial court erred in denying defendants' motion for summaryjudgment on this issue.

III. Negligent Supervision

    The trial court denied defendant's motion for summary judgment as to plaintiff's claim against the City of Mount Holly for negligent supervision. As stated above, the only claims properly before this Court are those involving sovereign immunity. The basis of defendant's argument regarding negligent supervision is insufficiency of the evidence as to the elements of the claim, not governmental immunity. There are several reasons why this issue is not properly before us. First, in the record on appeal, plaintiff does not include an assignment of error dealing with negligent supervision. See N.C. R. App. P. 10(c)(1) (requiring there to be a list of the assignments of error upon which an appeal is predicated at the conclusion of the record on appeal). Second, defendant presents no argument that the trial court should have dismissed the case based on governmental immunity, but instead based his argument on insufficiency of the evidence. Finally, the denial of summary judgment is an interlocutory order and generally not appealable, unless it affects a substantial right of the party, which would be lost if the ruling or order is not reviewed before final judgment." Lee v. Baxter, 147 N.C. App. 517, 519, 556 S.E.2d 36, 37 (2001); N.C. Gen. Stat. § 1-277(a) (2002). The issue of negligent supervision does not affect a substantial right andtherefore, it is not properly before us at this time.
    REVERSED IN PART AND AFFIRMED IN PART.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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