NO. COA13-853

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

TIMOTHY BLAKELEY,

Plaintiff,

v. Moore County

No. 10 CVS 250

THE TOWN OF TAYLORTOWN, NORTH 

CAROLINA; a municipal corporation,

Defendant.

Appeal 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.

The McGuinness Law Firm, by J. Michael McGuinness, and John

W. Roebuck for plaintiff-appellee.

Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., and 

Patrick H. Flanagan for defendant-appellant.

Amicus curiae brief submitted by Narron, O’Hale and 

Whittington, P.A., by John P. O’Hale, for the Southern 

States Police Benevolent Association and the North Carolina 

Police Benevolent Association.

HUNTER, Robert C., Judge.

Defendant the Town of Taylortown (“the Town” or 

“defendant”) 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 
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review, we reverse the order denying defendant’s motion to amend 

the verdict and remand for the trial court to reduce the jury’s 

verdict by $5,886.97. As to all other bases for defendant’s 

motions, we find no error.

Background

This action arises out of the termination of plaintiff 

Timothy Blakeley (“plaintiff” of “Chief Blakeley”) from his atwill 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., (“Mayor 

Barrett”) regarding the Town’s use of a Cushman ATV (“the ATV”) 

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’s home. The next day, 

plaintiff received a “write-up” for failing to follow the chain 
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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.

In 2006, plaintiff was contacted by the North Carolina 

State Bureau of Investigation (“the SBI”) 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 “substantially and materially changed.” 

On 29 August 2006, Mayor Barrett sent plaintiff a written 

memo informing him that plaintiff’s 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. 
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During plaintiff’s 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 “constant[ly]” and “on 

a continuous basis.” 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’s report to the Board, Chief 

Blakeley contended that he provided them all the “legally 

permissible information” 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.

On 31 October 2006, Mayor Barrett wrote a memo criticizing 

plaintiff’s record and claiming that he had no confidence in 

plaintiff’s 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 
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2007, the Board met again to consider a resolution to terminate 

plaintiff’s 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. 

On 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’s 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’s 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’s motion for 

judgment on the pleadings. On 10 June 2011, defendant moved for 

summary judgment as to plaintiff’s remaining claim for wrongful 

discharge. This motion was denied in open court on 27 June 2011 

by Judge James M. Webb. 

The 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 
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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. § 14-230, which prohibits a public 

official from refusing to discharge his duties; and (2) N.C. 

Gen. Stat. § 14-226(a), which prohibits the intimidation or 

interference with witnesses. The jury was asked to answer four 

issues: (1) Was the plaintiff’s refusal to participate in 

conduct which violated public policy a substantial factor in the 

defendant’s 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’s 

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. 

On 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, 
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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’s inflammatory and prejudicial 

statements during trial, and because the jury’s award of damages 

was excessive. 

On 16 March 2012, Judge Webb issued an order, among other 

things: (1) denying plaintiff’s motion for equitable relief in 

the form of front pay; (2) denying defendant’s 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. 
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Standard of Review

On appeal, when defendants move for a new trial pursuant to 

Rule 59(a)(5), (6), and (7), a trial court’s decision “may be 

reversed on appeal only in those exceptional cases where an 

abuse of discretion is clearly shown.” 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). “An appellate court should not disturb a discretionary 

Rule 59 order unless it is reasonably convinced by the cold 

record that the trial judge’s ruling probably amounted to a 

substantial miscarriage of justice.” Anderson v. Hollifield, 

345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997). However, we 

review the trial court’s 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).

Arguments

I. Defendant’s Motion to Amend the Verdict

First, 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’s award was 
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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’s failure to mitigate his 

damages. 

The only claim submitted to the jury was plaintiff’s 

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 publicpolicy 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). “An employer 

wrongfully discharges an at-will employee if the termination is 

done for an unlawful reason or purpose that contravenes public 

policy.” Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 

571, 515 S.E.2d 438, 441 (1999). 
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At 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 “that 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[.]” The trial court went 

on to state that actual damages could include future losses. 

Defendant contends that the trial court’s inclusion of future 

lost wages and emotional distress damages in the measure of 

plaintiff’s actual damages constituted error.

Pursuant to Rule 59(a)(8) (“[e]rror in law occurring at the 

trial and objected to by the party making the motion”), 

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 
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discharge is entitled to these traditional types of tort 

damages.

Initially, it should be noted that “[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.” 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. 

While 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) (“tort claim alleging 

wrongful discharge”); 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 
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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 atwill 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 
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award plaintiff both emotional distress damages and damages for 

future lost wages. 

In support of its argument, defendant contends that the 

tort of wrongful discharge is more similar to a claim of 

intentional infliction of emotional distress (“IIED”) and 

negligent infliction of emotional distress (“NIED”) than other 

types of torts. Accordingly, defendant argues that because 

plaintiff failed to show “extreme and outrageous” conduct by 

defendant or “severe emotional distress,” he did not meet the 

“stringent standard” required for emotional distress recovery. 

However, defendant’s 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 “extreme and outrageous 

conduct,” which caused “severe emotional distress.” 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 “severe emotional 

distress.” 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 “pain and 
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suffering” damages, is a “basis for recovery.” Iadanza v. 

Harper, 169 N.C. App. 776, 780, 611 S.E.2d 217, 221 (2005). 

“Moreover, physical injury is only one aspect of ‘pain and 

suffering,’ which also may include emotional suffering[.]” 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 “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”). Thus, plaintiff 

was not required to show either “severe emotional distress” or 

“extreme and outrageous conduct” by defendant to be awarded 

emotional distress or pain and suffering damages.

Next, defendant contends that the trial court erred in not 

granting his motion to amend the verdict because the jury 

“manifestly disregarded” 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). 
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Our review of this issue on appeal is abuse of discretion. 

Greene, 187 N.C. App. at 78, 652 S.E.2d at 282.

Here, 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, 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. 

While defendant claims that the jury “manifestly 

disregarded” the instructions in awarding these types of 

damages, as discussed above, these types of traditional tort 
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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 “manifestly disregarded” the 

instructions. Furthermore, although it is unclear exactly how 

the jury reached its overall figure, the jury’s verdict was 

consistent with plaintiff’s 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’s motion to amend the 

verdict pursuant to Rule 59(a)(5) and (6).

Additionally, defendant contends that the jury disregarded 

the trial court’s instructions because they did not reduce the 

award based on plaintiff’s 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. 

“Under the law in North Carolina, an injured plaintiff must 

exercise reasonable care and diligence to avoid or lessen the 
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consequences of the defendant’s wrong. If plaintiff fails to 

mitigate his damages, for any part of the loss incident to such 

failure, no recovery can be had.” Lloyd v. Norfolk Southern 

Railway Co., __ N.C. App. __, __, 752 S.E.2d 704, 706 (2013)

(internal quotation marks omitted).

At trial, the court instructed the jury that plaintiff’s 

damages must be reduced by the amount which he could have earned 

from similar employment using reasonable diligence and that 

“reasonable diligence requires that an employee seek and accept 

similar employment in the same locality.” Given the testimony 

at trial concerning plaintiff’s attempts to find new employment, 

defendant’s 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’s 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. 
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Next, 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. 

At trial, plaintiff’s 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, the trial court 

abused its discretion in denying defendant’s 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’s motion to amend on this basis and 

remand to the trial court to reduce the verdict by $5,886.97—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.

II. Defendant’s Motion for a New Trial
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Next, 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’s 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’s statements during 

closing argument were highly inflammatory and prejudicial. 

As noted above, we review the trial court’s denial of 

defendant’s 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). 

With regard to defendant’s 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) (“‘Actual damages’ are synonymous with ‘compensatory 

damages’ and with ‘general damages.’ Damages for mental 

suffering are actual or compensatory. They are not special nor 
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punitive, and are given to indemnify the plaintiff for the 

injury suffered.”) (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, “[c]ompensatory damages provide 

recovery for, inter alia, mental or physical pain and suffering, 

lost wages and medical expenses.” 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’s argument that 

“actual damages” do not include emotional distress damages and 

damages for future lost wages is without merit. 

Next, 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. 

To state a claim for wrongful discharge in violation of 

public policy, an employee has the burden of showing that his 

“dismissal occurred for a reason that violates public policy.” 

Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551 

S.E.2d 179, 181, aff’d per curiam, 354 N.C. 568, 557 S.E.2d 528 

(2001). However, “something more than a mere statutory 
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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.” 

Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 571, 515 

S.E.2d 438, 441 (1999) (internal quotation marks omitted). 

While 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’s request, 

(2) for engaging in a legally protected 

activity, or (3) based on some activity by 

the employer contrary to law or public 

policy.

Combs v. City Elec. Supply Co., 203 N.C. App. 75, 80, 690 S.E.2d 

719, 723 (2010) (internal quotation marks omitted). 

Contrary to defendant’s 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. 
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Gen. Stat. § 14-230. N.C. Gen. Stat. § 14-230 provides, in 

pertinent part that “[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.” Initially, we note that “a 

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. § 14-230[.]” 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. 

Plaintiff testified that he was repeatedly asked by members 

of the Town Council to provide confidential information on “an 

ongoing basis.” 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 
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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. §

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.

Finally, defendant contends that the trial court erred in 

denying his motion for a new trial based on plaintiff counsel’s

inflammatory and prejudicial remarks during closing arguments. 

Since defendant did not object at trial to these remarks, 

where a party fails to object during closing arguments, “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.” O'Carroll v. Texasgulf, 

Inc., 132 N.C. App. 307, 315, 511 S.E.2d 313, 319 (1999). 

In its brief, defendant cites several statements made by 

plaintiff counsel that it characterized as grossly improper. We 
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agree with defendant that those statements made by plaintiff’s 

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. 

Conclusion

With regard to defendant’s motion to amend the verdict 

based on the jury’s 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’s motion to amend the verdict and motion for 

a new trial, we find no error.

REVERSED AND REMANDED IN PART; NO ERROR IN PART.
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Judges GEER and McCULLOUGH concur.