Opinion
No. 06-1339.
Filed June 19, 2007.
Gaston County No. 04 CVS 4719.
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. 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.
Herdon v. Barrett, 101 N.C. App. 636, 641, 400 S.E.2d 767, 770 (1991).
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.
I.
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).
II.
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, 445 S.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 original).
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 liability for mere negligence, but not for malicious or corrupt conduct, in the performance of their official duties. Thus, while [defendant] is protected from individual liability 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. . . . Id. (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.
Dismissed.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).