Blakeley v. The Town of Taylortown

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
 -2-
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 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., (“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.
 -4-
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
 -5-
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
 -6-
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,
 -7-
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.
 -8-
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
 -9-
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 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). “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).
 -10-
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
 -11-
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
 -12-
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
 -13-
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
 -14-
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).
 -15-
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
 -16-
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
 -17-
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.
 -18-
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
 -19-
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
 -20-
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
 -21-
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.
 -22-
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
 -23-
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
 -24-
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.
 -25-
Judges GEER and McCULLOUGH concur.