City dismissed from McCormick lawsuit

A circuit judge has dismissed a lawsuit against the City of Enterprise but will allow the lawsuit to proceed against its former city prosecutor.

Houston County Circuit Judge Brad Mendheim ruled Thursday afternoon “after hearing and consideration, the court orders that the defendant City of Enterprise’s motion to dismiss is granted.

“Defendants Joshua Pipkin and Katie Pipkin’s motion to dismiss is denied,” Mendheim said in his ruling. “Issues presented (by McCormick) are both legal and factual and therefore inappropriate for consideration through a motion to dismiss.”

Following Mendheim’s ruling Thursday afternoon, City of Enterprise Attorney Rainer Cotter said “the city appreciates the judge recognizing that the applicable law did not allow a claim against the city. No further comment will be made at this time.”

The Chief Justice of the Alabama Supreme Court appointed Mendheim to hear the case filed by McCormick against Pipkin, his wife Katie and the City of Enterprise after all the circuit judges in the 12th Judicial Circuit recused themselves from hearing the case.

Mendheim held a first hearing on the case on Jan. 9 in Coffee County Circuit Court in Enterprise.

During the 45-minute hearing, Rainer Cotter, representing the City of Enterprise, asked Mendheim to exempt the city from the lawsuit filed by McCormick, which charges then city prosecutor Pipkin with “invasion of privacy, fraud, vicarious liability, defamation and slander.”

McCormick filed the lawsuit in Coffee County Circuit Court Nov. 21, 2014, alleging that on or about Nov. 28, 2012, Pipkin contacted her by phone text message using a phone number obtained from court records from the City of Enterprise where he then served as municipal prosecutor.

“The improper use of these private records by (Pipkin) caused (McCormick) to be placed in a false and defamatory position in the public eye.”

McCormick charged further that on or about Nov. 28, 2012, Pipkin used the internet social networking application called “Face Book” to located her and to “willfully deceive” her into believing that he was concerned about her pending case in municipal court.

McCormick charged the City of Enterprise with “vicarious liability,” citing the fact that Pipkin was, at the time, employed as the Enterprise City Prosecutor. “The City breached a duty owed to their citizen by not properly overseeing their employee in accessing information from a City legal file for a wrongful purpose while in the scope of his service or employment.”

The lawsuit against the city should be dismissed, Cotter told the judge, reiterating a motion to dismiss filed Nov. 25, 2014, citing several reasons, to include the fact that it was not filed within the required six months of the alleged incidents.

“Second,” Cotter said, “the face of (McCormick’s) complaint establishes that if her allegations are presumed true, (Pipkin) acted outside the line and scope of his employment as city prosecutor…there is no allegation in the complaint that the city aided or abetted Pipkin as to the alleged actions. Moreover, a city cannot be held liable for the intentional acts of its alleged agents, and hence, (McCormick) does not state any valid claims against the city under Alabama law.

“Nowhere in (McCormick’s) complaint does she allege that the city knew about the alleged conduct of Pipkin, that the conduct was in furtherance of any city business or that the city somehow acted to ratify the alleged conduct,” the motion to dismiss states. “Like any alleged employer or principal, if an agent or employee has committed some wrongful conduct that is wholly outside the bounds of his employment or agency, the city as an employer or principal cannot be held vicariously liable for those acts.”

Alex Holtsford of Montgomery represented both the Pipkins at the Jan. 9 hearing. He said that the alleged phone text message request from Pipkin to send nude photos of herself did not constitute “willful deceit” because no nude photos were ever sent. “Bad manners do not create liability,” Holtsford told the court.

Pipkin’s wife is charged in the lawsuit with defamation, slander and liable because she went to The Southeast Sun May 26, 2014, to claim that the text messages sent to McCormick from her husband’s phone were in fact texted by her.

McCormick’s lawsuit further charges Katie Pipkin with libel in connection with an affidavit to the Alabama State Bar Association “denying the actions which took place and in an attempt to protect her husband’s political aspirations, this affidavit was submitted (to the state bar) with the full knowledge that it was a false statement to the Alabama State Bar.”

McCormick’s attorney, Gregory Sample, told the court that Pipkin used his access to municipal court records to obtain McCormick’s cell phone number was an invasion of privacy and that the subsequent chain of events had caused his client “a sense of fear of repercussion from making what Mr. Pipkin did public—caused her great distress.”

Referencing McCormick’s claim of “invasion of privacy,” Holtsford said that the public awareness about the case has been initiated by McCormick, to include addressing the issue with the city council at a council meeting.

In her lawsuit, McCormick asks the court for an unnamed amount of “compensatory and punitive damage plus costs.”