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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
STEVE MASON ENTERPRISES, INC.,
a North Carolina Corporation,
CITY OF GASTONIA,
a North Carolina
Municipal Corporation and
Appeal by Defendants from judgment entered 24 April 2006 by
Judge Timothy Kincaid in Superior Court, Gaston County. Heard in
the Court of Appeals 8 May 2007.
Sigmon, Clark, Mackie, Hutton, Hanvey, & Ferrell, P.A., by
Jason White, for Plaintiff-Appellee.
Stott, Hollowell, Palmer & Windham, L.L.P., by Martha Raymond
Thompson and Aaron C. Low, for Defendants-Appellant.
This Court has previously held that neither this Court nor the
trial court is bound to the insurance carrier's interpretation of
its own policy.
(See footnote 1)
Because the record does not contain the insurance
policy that Defendants ask this Court to review de novo to
determine whether the purchase of insurance waived the sovereign
immunity, we must dismiss this appeal. The relevant facts show that on 10 July 2002, under an Order
to Repair from the Gastonia Office of Code Enforcement, the City of
Gastonia gave the property owner of 3507 Kings Mountain Highway,
Gastonia, North Carolina, ninety days to repair the premise or the
premise would be demolished. In April 2003, the ownership of the
premise was transferred to Plaintiff Steve Mason Enterprises, Inc.
On 8 October 2003, Gastonia filed a complaint against Plaintiff
alleging the premise did not meet the requirements of the Gastonia
Minimum Standard Housing Code.
On 20 November 2003, the Clerk of Superior Court entered an
entry of default because Plaintiff failed to respond to the
complaint. On 17 February 2004, the trial court ordered Plaintiff
to bring the premise into compliance with the Housing Code within
thirty days or Gastonia would enter the property and abate the
unlawful conditions existing. On 20 April 2004, Gastonia
demolished the property.
Following the demolishment of the property, Plaintiff brought
an action on 16 December 2004 against the City of Gastonia and Bill
Rutledge, a code enforcement officer with the City of Gastonia,
alleging trespass, conversion, and breach of contract. After a
hearing, the trial court granted summary judgment in favor of
Gastonia on Plaintiff's breach of contract claim, but denied
summary judgment on the claims of trespass and conversion.
Defendants appeal contending that Plaintiff's claims of trespass
and conversion are barred by sovereign immunity which the City had
not waived by the purchase of a liability insurance policy. We,however, do not reach this issue because the record does not
include the applicable insurance policy.
The record reveals that Plaintiff alleged in its complaint
that Gastonia had purchased liability insurance which purportedly
waived its sovereign immunity. Gastonia acknowledges in its brief
the existence of liability insurance but contends that insurance
coverage was denied in this case by the City of Gastonia's General
Liability Policy with NCLM (GL Policy) and the City of Gastonia's
Public Officials and Employment Practices Liability Coverage with
NCLM (POL coverage). Moreover, Gastonia indicates that the
policy at issue in the instant case contains EXCLUSIONS which
expressly exclude coverage for Plaintiff's claims. Throughout its
brief, Gastonia refers to the policy by citations to a letter to
Plaintiff explaining that the insurance policy does not provide
coverage for its claims. Indeed, Plaintiff correctly points out
that the Defendants failed to include the actual policies with the
record on appeal, instead relying solely upon the letter denying
coverage to prove that sovereign immunity has not been waived.
It is well settled that neither this Court nor the trial court
is bound to the insurance carrier's interpretation of its own
policy. Herdon v. Barrett, 101 N.C. App. 636, 641, 400 S.E.2d 767,
770 (1991). Moreover, under the Rules of Appellate Procedure, the
record on appeal must contain so much of the evidence . . . as is
necessary for an understanding of all errors assigned. N.C. R.
App. P. 9(a)(1)(e). It is the appellant's responsibility to makesure that the record on appeal is complete and in proper form.
Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468
(1988). Because Defendants failed to include the insurance policy
in the record on appeal, this Court cannot conduct a de novo review
to determine whether Defendants waived sovereign immunity.
Accordingly, we dismiss this assignment of error.
Having determined that we cannot review the issue of sovereign
immunity in this matter, we must dismiss Defendants' appeal from
the denial of summary judgment on the claims of trespass and
conversion. Campbell v. Anderson, 156 N.C. App. 371, 374, 576
S.E.2d 726, 728(reiterating that an appeal that raises the issue of
sovereign immunity is an exception to the rule that a denial of a
motion for summary judgment is an interlocutory order), disc.
review denied, 357 N.C. 457, 585 S.E.2d 385 (2003).
Defendant Rutledge further contends that he is entitled to
public official immunity in his individual capacity. However,
Plaintiff's complaint failed to distinguish in what capacity
Defendant Rutledge was being sued, individually or officially.
Thus, Plaintiff sued Defendant Rutledge only in his official
capacity. See Taylor v. Ashburn
, 112 N.C. App. 604, 607-08, 436
S.E.2d 276, 279 (1993)(providing that a complaint that fails to
state any allegations other than those relating to a defendant's
official duties does not state a claim against defendant in his or
her individual capacity, and will be treated as a claim against
defendant in his official capacity), cert. denied
, 336 N.C. 77, 445S.E.2d 46 (1994). Since Defendant Rutledge was not sued in his
individual capacity, the question of whether he is entitled to
public official immunity in his individual capacity is feckless.
Thompson v. Town of Dallas
, 142 N.C. App. 651, 655, 543 S.E.2d 901,
904-05 (2001) (providing that the purpose of this immunity is to
protect officials from individual liability
for mere negligence .
. . in the performance of their official duties) (emphasis in
Moreover, regarding Defendant Rutledge's official capacity,
this Court held in Thompson,
The doctrine of public official's immunity
serves to protect officials from individual
for mere negligence, but not for
malicious or corrupt conduct, in the
performance of their official duties. Thus,
while [defendant] is protected from individual
for mere negligence in the
performance of his duties by the doctrine of
public official's immunity, such immunity does
not extend to protect him from suit in his
official capacity for such negligence to the
extent his employer, defendant Town, has
waived immunity by the purchase of liability
insurance . . ..
(emphasis in original).
Here, because we do not reach the issue of whether Gastonia
waived its sovereign immunity by the purchase of liability
insurance, we likewise cannot determine the extent of Defendant
Rutledge's exposure to liability in his official capacity.
Accordingly, we dismiss this assignment of error.
Judges TYSON and CALABRIA concur.
Report per rule 30(e).
Herdon v. Barrett
, 101 N.C. App. 636, 641, 400 S.E.2d 767,
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