Fox v. Johnson
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Opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-489
No. COA20-438
Filed 21 September 2021
Guilford County, No. 12 CVS 4940
WILLIAM THOMAS FOX and SCOTT EVERETT SANDERS, Plaintiffs,
v.
THE CITY OF GREENSBORO; MITCHELL JOHNSON, individually and in his officially capacities; TIMOTHY R. BELLAMY, individually and in his officially capacities; GARY W. HASTINGS, individually and in his officially capacities; ERNEST L. CUTHBERTSON, individually and in his officially capacities; JOHN D. SLONE, individually and in his officially capacities; NORMAN O. RANKIN, individually and in his officially capacities; AND MARTHA T. KELLY, individually and in her officially capacities, Defendants.
Appeal by Plaintiffs from order entered 14 August 2012 by Judge Joseph
Turner and order entered 18 December 2019 by Judge David L. Hall in Guilford
County Superior Court. Heard in the Court of Appeals 10 March 2021.
Morrow, Porter, Vermitsky, & Taylor, PLLC, by John C. Vermitsky, for Plaintiffs-Appellants.
Nelson Mullins Riley & Scarborough, LLP, by G. Gray Wilson, Stuart H. Russell, and Lorin J. Lapidus, for Defendants-Appellees.
WOOD, Judge.
¶1 Plaintiffs William Fox (“Fox”) and Scott Sanders (“Sanders”) (collectively,
“Plaintiffs”) appeal two separate orders. Plaintiffs first appeal an order dismissing
their civil conspiracy and abuse of process claims. Plaintiffs also appeal an order FOX V. JOHNSON
Opinion of the Court
granting summary judgment in favor of Defendants with respect to their malicious
prosecution cause of action. After careful review of the record and applicable law, we
affirm in part and reverse in part.
I. Factual and Procedural Background
¶2 In 1984, Defendant Mitchell Johnson (“Defendant Johnson”) became employed
by the City of Greensboro. In early 2000, Defendant Johnson became the Deputy City
Manager. While Defendant Johnson was the Deputy City Manager, the City
Manager Ed Kitchen (“Kitchen”) asked Defendant Johnson “to review a letter from
the NAACP expressing concerns” of racial misconduct within the Greensboro Police
Department (“GPD”). In the summer of 2005, while Defendant Johnson’s review of
the concerns raised was ongoing, Kitchen retired, and Defendant Johnson became the
City Manager.
¶3 In 2005, Plaintiffs were law enforcement officers with the GPD. Plaintiffs were
assigned to the “Special Intelligence Section” (“SIS”), a subdivision of the Special
Investigations Division (“SID”) within the GPD. The SIS was “a unit designed to
investigate, among other things, allegations of criminal police misconduct, outlaw
motorcycle gangs, street gangs, dangerous persons, organized crime,” and to “protect
celebrities or high risk targets visiting Greensboro, North Carolina.”
¶4 In or around June 2005, GPD Officer James Hinson (“Hinson”) and other
African American officers raised concerns that Chief of Police David Wray (“Chief FOX V. JOHNSON
Wray”) and “a group of Caucasian officers coined the ‘Secret Police’ ” were racially
targeting African American police officers. Hinson alleged the SIS, including
Plaintiffs, were involved in the “Secret Police.”
¶5 The allegations of racial discrimination and targeting centered around the
SIS’s use of an alleged “Black Book.” The “Black Book” was a black binder containing
pictures of nineteen African American officers and various male African American
individuals allegedly used “as part of an effort to target African American police
officers for criminal investigations.” The SIS asserted that the “Black Book” was a
legitimate investigative tool being used to investigate an allegation of sexual assault
by an on-duty African American officer. The “Black Book” contained photographs of
minority male officers who were on-duty during the alleged sexual assault of an
informant.
¶6 Due to the allegations of racial misconduct, Defendant Johnson asked Chief
Wray about the NAACP’s concerns and the existence of the Black Book. Chief Wray’s
written response led Defendant Johnson to “believe that [Wray] denied the existence
of anything matching the description of the ‘Black Book.’ ” Defendant Johnson
reported to the NAACP that the “Black Book” did not exist.
¶7 In August 2005, Defendant Johnson attended a meeting with African
American GPD officers at their request. During this meeting, Defendant Johnson
heard the officers’ concerns regarding the Wray administration. Around this time, FOX V. JOHNSON
Defendant Johnson also learned of concerns regarding the SID from the State Bureau
of Investigation (“SBI”). Due to repeated concerns regarding the GPD, Defendant
Johnson contacted City Attorneys “to find an outside entity to review the conduct of
the Wray administration to determine if there was any truth to the concerns.” The
City’s legal department (“City Legal”), in response, recommended Risk Management
Associates (“RMA”), an independent consulting company, to review the Wray
administration. Defendant Johnson hired RMA to “review the conduct of the . . .
Wray [a]dministration[,]” but “did not ask RMA to investigate any particular
individual.”
¶8 While the RMA investigation was ongoing, Defendant Johnson “had the legal
department of the City of Greensboro investigate general administrative issues in the
GPD.” The RMA report caused Defendant Johnson to believe Chief Wray “had not
been truthful about the ‘Black Book’ and raised other serious concerns about the
leadership of the [GPD].” As a result, Defendant Johnson then “chose to place Wray
on administrative leave” on January 6, 2006. At that time, Defendant Timothy
Bellamy (“Defendant Bellamy”), the Assistant Chief of Police, became the interim
Chief of Police. Shortly after Chief Wray was placed on administrative leave, he FOX V. JOHNSON
resigned as Chief of Police on January 9, 2006.1 After Chief Wray’s resignation,
Defendant Bellamy was tasked with reviewing the RMA and City Legal reports.
¶9 Upon his review of the RMA report, Defendant Bellamy had “very serious
concerns about the leadership of the Wray administration.” According to the report,
Officer Randall Brady (“Brady”) revealed to the RMA that “he was keeping in the
trunk of his police car a book that matched the description of the ‘Black Book.’ ”
According to Sanders, Brady secured the “Black Book” in the trunk of his patrol
vehicle to avoid speculation that the “Secret Police” were showing the “Black Book”
to a variety of individuals in an effort to incriminate minority officers.
¶ 10 Upon securing the “Black Book” from Brady’s trunk, Defendant Bellamy gave
the “Black Book” to Internal Affairs (“IA”). IA then began its investigation.
Thereafter, Defendant Bellamy assigned Captain Gary Hastings (“Defendant
Hastings”) “with the task of securing and reviewing materials within [SID] . . . for
possible criminal activity.” Defendant Hastings “put together a team” of officers from
the Criminal Investigation Division (“CID”) to review the activity of the SID and
Wray administration.
¶ 11 While Defendant Hastings was investigating the SID, Defendant Bellamy met
1 The Federal Bureau of Investigation (“FBI”) began an investigation of the Wray administration on January 12, 2006. The FBI did not substantiate any violation of civil rights or federal law. FOX V. JOHNSON
with Guilford County District Attorney Doug Henderson (“Henderson”) about the
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IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-489
No. COA20-438
Filed 21 September 2021
Guilford County, No. 12 CVS 4940
WILLIAM THOMAS FOX and SCOTT EVERETT SANDERS, Plaintiffs,
v.
THE CITY OF GREENSBORO; MITCHELL JOHNSON, individually and in his officially capacities; TIMOTHY R. BELLAMY, individually and in his officially capacities; GARY W. HASTINGS, individually and in his officially capacities; ERNEST L. CUTHBERTSON, individually and in his officially capacities; JOHN D. SLONE, individually and in his officially capacities; NORMAN O. RANKIN, individually and in his officially capacities; AND MARTHA T. KELLY, individually and in her officially capacities, Defendants.
Appeal by Plaintiffs from order entered 14 August 2012 by Judge Joseph
Turner and order entered 18 December 2019 by Judge David L. Hall in Guilford
County Superior Court. Heard in the Court of Appeals 10 March 2021.
Morrow, Porter, Vermitsky, & Taylor, PLLC, by John C. Vermitsky, for Plaintiffs-Appellants.
Nelson Mullins Riley & Scarborough, LLP, by G. Gray Wilson, Stuart H. Russell, and Lorin J. Lapidus, for Defendants-Appellees.
WOOD, Judge.
¶1 Plaintiffs William Fox (“Fox”) and Scott Sanders (“Sanders”) (collectively,
“Plaintiffs”) appeal two separate orders. Plaintiffs first appeal an order dismissing
their civil conspiracy and abuse of process claims. Plaintiffs also appeal an order FOX V. JOHNSON
Opinion of the Court
granting summary judgment in favor of Defendants with respect to their malicious
prosecution cause of action. After careful review of the record and applicable law, we
affirm in part and reverse in part.
I. Factual and Procedural Background
¶2 In 1984, Defendant Mitchell Johnson (“Defendant Johnson”) became employed
by the City of Greensboro. In early 2000, Defendant Johnson became the Deputy City
Manager. While Defendant Johnson was the Deputy City Manager, the City
Manager Ed Kitchen (“Kitchen”) asked Defendant Johnson “to review a letter from
the NAACP expressing concerns” of racial misconduct within the Greensboro Police
Department (“GPD”). In the summer of 2005, while Defendant Johnson’s review of
the concerns raised was ongoing, Kitchen retired, and Defendant Johnson became the
City Manager.
¶3 In 2005, Plaintiffs were law enforcement officers with the GPD. Plaintiffs were
assigned to the “Special Intelligence Section” (“SIS”), a subdivision of the Special
Investigations Division (“SID”) within the GPD. The SIS was “a unit designed to
investigate, among other things, allegations of criminal police misconduct, outlaw
motorcycle gangs, street gangs, dangerous persons, organized crime,” and to “protect
celebrities or high risk targets visiting Greensboro, North Carolina.”
¶4 In or around June 2005, GPD Officer James Hinson (“Hinson”) and other
African American officers raised concerns that Chief of Police David Wray (“Chief FOX V. JOHNSON
Wray”) and “a group of Caucasian officers coined the ‘Secret Police’ ” were racially
targeting African American police officers. Hinson alleged the SIS, including
Plaintiffs, were involved in the “Secret Police.”
¶5 The allegations of racial discrimination and targeting centered around the
SIS’s use of an alleged “Black Book.” The “Black Book” was a black binder containing
pictures of nineteen African American officers and various male African American
individuals allegedly used “as part of an effort to target African American police
officers for criminal investigations.” The SIS asserted that the “Black Book” was a
legitimate investigative tool being used to investigate an allegation of sexual assault
by an on-duty African American officer. The “Black Book” contained photographs of
minority male officers who were on-duty during the alleged sexual assault of an
informant.
¶6 Due to the allegations of racial misconduct, Defendant Johnson asked Chief
Wray about the NAACP’s concerns and the existence of the Black Book. Chief Wray’s
written response led Defendant Johnson to “believe that [Wray] denied the existence
of anything matching the description of the ‘Black Book.’ ” Defendant Johnson
reported to the NAACP that the “Black Book” did not exist.
¶7 In August 2005, Defendant Johnson attended a meeting with African
American GPD officers at their request. During this meeting, Defendant Johnson
heard the officers’ concerns regarding the Wray administration. Around this time, FOX V. JOHNSON
Defendant Johnson also learned of concerns regarding the SID from the State Bureau
of Investigation (“SBI”). Due to repeated concerns regarding the GPD, Defendant
Johnson contacted City Attorneys “to find an outside entity to review the conduct of
the Wray administration to determine if there was any truth to the concerns.” The
City’s legal department (“City Legal”), in response, recommended Risk Management
Associates (“RMA”), an independent consulting company, to review the Wray
administration. Defendant Johnson hired RMA to “review the conduct of the . . .
Wray [a]dministration[,]” but “did not ask RMA to investigate any particular
individual.”
¶8 While the RMA investigation was ongoing, Defendant Johnson “had the legal
department of the City of Greensboro investigate general administrative issues in the
GPD.” The RMA report caused Defendant Johnson to believe Chief Wray “had not
been truthful about the ‘Black Book’ and raised other serious concerns about the
leadership of the [GPD].” As a result, Defendant Johnson then “chose to place Wray
on administrative leave” on January 6, 2006. At that time, Defendant Timothy
Bellamy (“Defendant Bellamy”), the Assistant Chief of Police, became the interim
Chief of Police. Shortly after Chief Wray was placed on administrative leave, he FOX V. JOHNSON
resigned as Chief of Police on January 9, 2006.1 After Chief Wray’s resignation,
Defendant Bellamy was tasked with reviewing the RMA and City Legal reports.
¶9 Upon his review of the RMA report, Defendant Bellamy had “very serious
concerns about the leadership of the Wray administration.” According to the report,
Officer Randall Brady (“Brady”) revealed to the RMA that “he was keeping in the
trunk of his police car a book that matched the description of the ‘Black Book.’ ”
According to Sanders, Brady secured the “Black Book” in the trunk of his patrol
vehicle to avoid speculation that the “Secret Police” were showing the “Black Book”
to a variety of individuals in an effort to incriminate minority officers.
¶ 10 Upon securing the “Black Book” from Brady’s trunk, Defendant Bellamy gave
the “Black Book” to Internal Affairs (“IA”). IA then began its investigation.
Thereafter, Defendant Bellamy assigned Captain Gary Hastings (“Defendant
Hastings”) “with the task of securing and reviewing materials within [SID] . . . for
possible criminal activity.” Defendant Hastings “put together a team” of officers from
the Criminal Investigation Division (“CID”) to review the activity of the SID and
Wray administration.
¶ 11 While Defendant Hastings was investigating the SID, Defendant Bellamy met
1 The Federal Bureau of Investigation (“FBI”) began an investigation of the Wray administration on January 12, 2006. The FBI did not substantiate any violation of civil rights or federal law. FOX V. JOHNSON
with Guilford County District Attorney Doug Henderson (“Henderson”) about the
RMA report and Defendant Hastings’s investigative findings. Henderson informed
Defendant Bellamy that the Guilford County District Attorney’s Office could not
participate in the investigation and that the North Carolina Attorney General’s Office
would need to be contacted about the concerns regarding alleged criminal conduct
within the GPD.
¶ 12 Henderson drafted a letter to Assistant Attorney General James Coman
(“Coman”) in March 2006. Henderson also wrote a letter to the Director of the SBI,
requesting a criminal investigation of the Wray administration on March 13, 2006.
On April 4, 2006, Coman responded to Henderson, “accepting responsibility to
determine whether or not a criminal investigation should be undertaken by the
[SBI].” Coman and a Special Deputy Attorney General traveled to Greensboro
throughout April and May 2006 to review police reports and tapes. On June 9, 2006,
a meeting was held at the SBI District Office in Greensboro, where it was determined
the SBI would mount an investigation of the Wray administration.
¶ 13 Throughout the SBI investigation, agents met with and interviewed
approximately seventy-five individuals, including Plaintiffs and Defendants Johnson,
Bellamy, and Hastings. Agents also reviewed “69 CDs of audio recordings that were
retrieved from Detective Scott Sanders’ city computer and other sources.” One
witness, Dana Bailey (“Bailey”), discussed how Sanders asked her to create lineups FOX V. JOHNSON
of male African American officers.
¶ 14 Bailey was employed by the GPD in 2000 and worked as an investigative
specialist. In or around January 2003, Sanders asked Bailey to put together lineups
consisting of five officers. Bailey believed the officers were Hinson, Snipes, Wallace,
Fulmore and Norman Rankin (“Defendant Rankin”). Bailey stated her lineups were
created using Department of Motor Vehicles (“DMV”) photographs, and she cropped
any photograph of an officer in uniform “so it looked similar to others in the lineup.”
¶ 15 In January 2005, Sanders asked Bailey to put together a list of every officer
who had worked on a particular date and shift. Bailey did so, and Sanders requested
“16 or 17 more lineups,” and told her “the request was by the authority of Deputy
Chief Brady.” Bailey created the lineups, and she mentioned in her SBI interview
that “all of the officers she did lineups on were black.” Sanders did not mention what
the lineups were for, nor did Bailey “want to know what they were for.” During the
investigation of the GPD, Bailey reported some computers were taken for
investigation, but one of hers was not. “[I]t bothered [Bailey] that a complete
investigation would not be done if that computer was not taken and looked at.”
¶ 16 Defendant Hastings was also interviewed by the SBI. Defendant Hastings’s
interview revealed Defendant Bellamy “designated Hastings as the operational
commander for the inventory, review, and analysis of the seized property belonging
to the [SID].” Defendant Hastings “was made the commander for any subsequent FOX V. JOHNSON
criminal investigation involving any allegation or evidence of a crime.” Defendant
Hastings stated the CID “seized a ‘ton’ of stuff including electronic media, such as
audio cassette tapes, VHS tapes, other video tapes, recordable CDs, computer drives,
cellular telephones, and recordable DVDs.” While Defendant Hastings was
investigating the SID, Defendant Bellamy re-assigned members of the SIS and SID
to other divisions.
¶ 17 While Defendant Hastings and his team were reviewing the materials seized
from the SID, Defendant Hastings “recalled that one of his homicide detectives,
[Defendant Rankin], had been transferred from his division to Special Intelligence.”
Defendant “Hastings ha[d] received information that Officer John Sloan2 [sic]
(“Defendant Slone”) had been instructed to keep [Defendant Rankin] busy in some
investigation that he had been assigned to handle.” Defendant Hastings “suspected
[Defendant] Rankin was placed in Special Intelligence and assigned some
investigation as window-dressing to offset the perception that black officers in that
unit were not allowed to investigate other officers.”
¶ 18 Defendant Rankin was also interviewed during the SBI investigation. Brady
assigned Defendant Rankin to the SID to work on a special assignment on June 23,
2005. Defendant Rankin was tasked with investigating “a sensitive matter,”
2Throughout the record, Defendant Slone is referred to as “Sloan.” It appears from the complaint and the parties’ briefing that the appropriate spelling is “Slone.” FOX V. JOHNSON
involving an informant. When Brady assigned Defendant Rankin to the SID, he
called Fox and Ernest Cuthbertson (“Defendant Cuthbertson”) to help investigate the
case. During this meeting, Brady “made some comment about [Sanders] being tied
up on the . . . Hinson investigation and some other things and that was why he needed
to assign the case to [Defendants] Rankin and Cuthbertson.”
¶ 19 Defendant Rankin was assigned to investigate allegations that certain GPD
officers solicited prostitutes. Defendant Rankin was instructed to contact Sanders
because Sanders had additional information about the case. Defendant Rankin did
so, and Sanders provided him with names and contact information. The allegations
regarding prostitution came from an informant who went by the name “CC.”
Defendant Rankin recalled CC would only speak with Defendant Slone.
¶ 20 Defendants Slone and Rankin discussed CC, and why CC was important to the
investigation. Defendant Slone later told Defendant Rankin that “Sloan [sic] had
been instructed to lead [Defendants] Rankin and Cuthbertson in the wrong direction
and give them false information to keep them from ever meeting with [the
informant].”
¶ 21 In his SBI interview, Defendant Slone discussed a phone call he received from
Sanders. Sanders told Defendant Slone the SID was not working the investigation,
but Chief Wray had assigned Defendants Rankin and Cuthbertson to investigate the
case. Defendant Slone detailed a meeting he had with Plaintiffs, where Plaintiffs FOX V. JOHNSON
expressed concerns regarding Defendants Rankin and Cuthbertson’s competency.
Defendant Slone was led to believe “by Brady, Fox, and Sanders” that Defendants
Cuthbertson and Rankin were “dirty cops.” According to Defendant Slone, he was
assigned to work the case, and was tasked with ensuring Defendants Rankin and
Cuthbertson did not obtain certain evidence. Defendant Slone also told SBI agents
that Plaintiffs were to be blind copied on any e-mails between Defendants Slone,
Rankin, and Cuthbertson.
¶ 22 Winston-Salem law enforcement officer Theodore Hill (“Hill”) corroborated
Defendant Slone’s statements.3 Hill recounted a meeting he attended with Defendant
Slone and two detectives at a gas station parking lot. “Hill related that [Defendant
Slone] was trying to give the other detectives some information he had obtained,” but
the detectives “did not want it because if they took the information, they would have
to give it to whoever was working on some case.” Hill recalled the information
Defendant Slone was trying to give to the detectives “was supposed to be a picture of
a police officer with a stripper or someone else.”
¶ 23 Defendant Slone and Hill’s statements to the SBI are further corroborated by
Defendant Rankin’s interview. Defendant Rankin was assigned to investigate
3 Fox filed “truthfulness concerns” regarding Defendant Slone, alleging Defendant Slone’s statements were inconsistent. GPD Sergeant Mike Loy (“Loy”), working in IA, drafted a memorandum regarding Defendant Slone’s inconsistent statements. Notably, Defendant Slone’s statements are corroborated, in part, by Hill and Defendant Rankin. FOX V. JOHNSON
allegations of police officers soliciting prostitutes. After Defendant Rankin received
his assignment, he thought “it was like an invisible wall was being put up to keep
him from talking to” the informant. Later, Defendant Slone admitted to Defendant
Rankin he was asked to “lead [Defendants] Rankin and Cuthbertson in the wrong
direction and give them false information to keep them from ever meeting with the
informant.”
¶ 24 Fox also participated in the SBI investigation. Fox denied knowing Sanders
was getting blind copies of e-mails between officers and claimed he was led to believe
CC “and [Defendant Rankin] did not get along.” He further denied “setting
[Defendant] Rankin up to fail.”
¶ 25 Throughout their investigation, SBI agents became concerned that Plaintiffs
obstructed investigations and unlawfully accessed a federal government computer.
Specifically, the agents were concerned Sanders accessed a federal computer assigned
to officer Julius Fulmore (“Fulmore”).
¶ 26 Fulmore had been assigned a laptop computer by an agent of the Department
of Housing and Urban Development (“HUD”) and used the laptop until June 4, 2004.
Fulmore did not allow any other officer to use the computer, and it was in his sole
possession. Fulmore told SBI agents that Sanders went to the HUD agent for consent
to search the HUD laptop twice. The HUD agent did not consent to a search and told
Sanders he would need Fulmore’s permission or a letter from Sanders’s supervisor FOX V. JOHNSON
requesting permission to access the computer. Fulmore did not consent to any
individual searching the HUD computer and the record does not reveal a request from
Sanders or his supervisor for permission to access the laptop.
¶ 27 On December 20, 2003, Sanders asked SBI agent Gary Rick Cullop (“Cullop”)
to examine a computer for him. Cullop stated he removed the hard drive from the
computer and made a “mirror copy” of the hard drive. According to Cullop’s SBI
interview, “he did not know by what consent he searched the computer for Sanders.”
Cullop believed “someone in Sanders’ chain of command gave permission for the
search.” Cullop did not know the computer was owned by HUD and the federal
government.
¶ 28 On September 18, 2006, the SBI agents investigating the Wray administration
presented Cullop with a computer. The computer SBI agents presented to Cullop was
the same computer given to Fulmore by the HUD agent. Cullop confirmed that the
computer he inspected for Sanders was the same computer presented to him on
September 18, 2006.4
¶ 29 On September 17, 2007, Sanders was indicted for one count of accessing a
government computer in violation of N.C. Gen. Stat. § 14-454.1(b); felonious
obstruction of justice; and felonious conspiracy “to undermine a legitimate criminal
4 Cullop was able to confirm the computer presented by the SBI agents was the same computer
he examined for Sanders by matching the serial number from the computer to his notes. FOX V. JOHNSON
investigation.” That same day, Fox was indicted for felonious obstruction of justice
and felonious conspiracy to obstruct justice. Plaintiffs were arrested on September
21, 2007.5 Consequently, Plaintiffs were suspended without pay and were instructed
not to issue any comments regarding the investigation.
¶ 30 Sanders’s criminal trial for one count of accessing a government computer
began on February 16, 2009. During Sanders’s trial, Defendant Hastings testified on
his behalf and was believed to be a beneficial witness for Sanders. Four days later,
Sanders was acquitted of accessing a government computer. The remaining charges
against both Plaintiffs were dismissed on February 23, 2009.6
¶ 31 On April 1, 2011, Plaintiffs brought suit against the City of Greensboro;
Defendants Bellamy, Hastings, Slone, Cuthbertson, Johnson, and Martha Kelly
(“Defendant Kelly”); and the RMA in the federal district court for the Middle District
of North Carolina. The District Court dismissed all of Plaintiffs’ asserted causes of
action, upon motion by the named defendants, on August 27, 2011. See Fox v. City of
Greensboro, et al., 807 F. Supp. 2d 476 (M.D.N.C. 2011).
¶ 32 On January 20, 2012, Plaintiffs filed suit against Defendants Johnson,
5 Plaintiffs speculate that former Attorney General Roy Cooper, judges, politicians, and the
SBI’s political motivations caused Coman to seek criminal indictments. 6 Coman’s affidavit demonstrates he “told the attorneys for Sanders and Fox that if Sanders
was acquitted, [Coman] would drop all remaining criminal charges against Sanders and Fox.” Plaintiffs’ attorney, Seth Cohen, submitted an affidavit corroborating this statement. FOX V. JOHNSON
Bellamy, Hastings, Kelly,7 Slone, Rankin, and Cuthbertson in Forsyth County
Superior Court (collectively, “all Defendants”). Plaintiffs asserted a civil conspiracy
cause of action against all Defendants in both their official and individual capacities.
Plaintiffs further alleged abuse of process and malicious prosecution causes of action
against Defendants Johnson, Bellamy, Hastings, and Kelly in both their official and
individual capacities. Plaintiffs asserted additional claims for declaratory judgment
and punitive damages.
¶ 33 Plaintiffs allege Defendant Johnson wrongfully ordered the investigation of
Plaintiffs, directed City Attorneys to lie to Plaintiffs, controlled the flow of
information to the SBI, instigated Plaintiffs’ arrest, and failed to provide the SBI with
exculpatory information. It was further alleged Defendant Johnson provided City
Council with false and misleading information about the “Black Book,” and
improperly provided the media and public with false and misleading information.8
¶ 34 Regarding Defendant Bellamy, Plaintiffs contend he “help[ed] to create false
accusations that [Plaintiffs] were wrongfully targeting minority officers”; controlled
7 We need not address the merits of Plaintiffs’ claims regarding Defendant Kelly. Plaintiffs voluntarily dismissed their claims against Defendant Kelly on October 8, 2018. See Hous. Auth. of City of Wilmington v. Sparks Eng’g. PLLC, 212 N.C. App. 184, 187, 711 S.E.2d 180, 182 (2011). 8 Throughout the investigations of the Wray administration, Defendants Johnson and Bellamy
engaged in press releases regarding the “Black Book.” Plaintiffs contend the statements made to the press, as well as statements made to City Council, were inflammatory, misleading, and false. Plaintiffs further contend these statements played a role in the SBI investigation and the decision to criminally indict Plaintiffs. FOX V. JOHNSON
the flow of information to the RMA, City Attorneys, and SBI; and provided false and
misleading information during the multiple investigations of the Wray
administration. According to Plaintiffs’ complaint, Defendant Bellamy “helped to
create a false transcript” of an audio recording between Sanders, Wray, and others;
failed to provide exculpatory information regarding Plaintiffs’ criminal charges; and
“[failed] to timely act to investigate . . . truthfulness allegations” that Defendant Slone
provided false information during the investigations.
¶ 35 Defendant Hastings was accused of aiding in the creation of false accusations
against Plaintiffs; “[a]uthoring memorandum accusing [Plaintiffs] of illegal and
immoral conduct”; instructing Defendant Kelly to destroy memoranda regarding the
investigation of Plaintiffs; and helped to create a false transcript of an audio recording
involving Sanders. Plaintiffs further alleged Defendant Hastings provided false and
misleading information to City Council and police personnel.
¶ 36 Plaintiffs contend Defendants Slone, Rankin, and Cuthbertson participated in
creating false accusations against Plaintiffs, and knowingly provided the RMA and
SBI with false or misleading information during the investigations of the Wray
administration. It was further alleged that Defendant Kelly, a GPD Captain, knew
of the false information provided during the SBI investigation and failed to take
appropriate action. Defendant Kelly was further accused of destroying memoranda
regarding the investigations, including a memorandum referred to as “Memo 9.” FOX V. JOHNSON
Memo 9 allegedly “contained exculpatory evidence that [Plaintiffs] had not acted
improperly.”
¶ 37 All Defendants moved to dismiss Plaintiffs’ complaint for improper venue,
failure to state a claim upon which relief can be granted, and failure to comply with
Rule 9 of our rules of civil procedure. The case was transferred to Guilford County
Superior Court by consent order in March 2012.
¶ 38 The Guilford County Superior Court granted all Defendants’ motion to dismiss
in part, dismissing Plaintiffs’ civil conspiracy and abuse of process claims on August
13, 2012. The trial court denied Defendants Johnson, Bellamy, and Hastings’s motion
to dismiss Plaintiff’s malicious prosecution cause of action. Plaintiffs appealed to this
Court on September 13, 2012.
¶ 39 Plaintiffs’ appeal was dismissed as interlocutory on October 1, 2013.9 See Fox
v. City of Greensboro, No. 13-171-2, 2013 N.C. App. LEXIS 1321 (N.C. Ct. App. Dec.
17, 2013). Plaintiffs filed a petition for discretionary review with the North Carolina
Supreme Court on January 21, 2014. This petition was denied in April 2014.
¶ 40 Defendants Johnson, Bellamy, Hastings, and Kelly moved for judgment on the
pleadings on the basis of collateral estoppel in the Guilford County Superior Court on
9 Plaintiffs’ appeal was originally heard on August 13, 2013, and an opinion was filed on October 1, 2013. Plaintiffs filed a petition for rehearing on November 1, 2013, which was allowed on November 21, 2013. On December 17, 2013, a superseding opinion was issued, dismissing Plaintiffs’ appeal as interlocutory. FOX V. JOHNSON
August 4, 2014. These Defendants contended Plaintiffs’ malicious prosecution claim
was barred by the doctrine of collateral estoppel “given the final judgment in the prior
case Fox v. City of Greensboro, 807 F. Supp. 2d 476 (M.D.N.C. 2011).” This motion
was denied.
¶ 41 On October 16, 2014, Defendants Johnson, Bellamy, Hastings, and Kelly
appealed to this Court. This Court issued its opinion on October 6, 2015, holding,
“Plaintiffs are not collaterally estopped from bringing their malicious prosecution
claims under state law.” Fox v. Johnson, 243 N.C. App. 274, 288, 777 S.E.2d 314, 325
(2015). These Defendants petitioned our Supreme Court for discretionary review on
November 9, 2015. The petition for discretionary review was denied on January 28,
2016. On May 12, 2016, this case was designated as exceptional pursuant to Rule
2.1(a) of the General Rules of Practice. Thereafter, the parties engaged in discovery.
¶ 42 Plaintiffs and Defendants Johnson, Bellamy, Hastings, and Kelly were
deposed. Sanders conceded in his deposition that he had “no personal knowledge of
any discussion or conversation any defendant had with anyone at the SBI,” other
than reading through their SBI interviews “after the fact.” Sanders further conceded
that he “had no personal knowledge of any of these [D]efendants” instructing other
law enforcement officers “not to provide information to the SBI.” When asked about
the contents of Memo 9, Sanders admitted he did not know if it related to the criminal
charges brought against him. FOX V. JOHNSON
¶ 43 During Fox’s deposition, he conceded he did not know the contents of Memo 9,
and he “[did not] know what that memo had to do with.” Fox testified he had “very
little contact” with Defendants Bellamy and Hastings. Fox conceded that he did not
believe “the charges were personal against [him,]” but that the charges “were just a
means to an end.” Further, Fox stated his belief that Defendant Hastings’s “actions
or motivation was prompted by [Hastings’s] relationship with Wray.”
¶ 44 Defendants Johnson, Bellamy, and Hastings moved for summary judgment
with respect to Plaintiffs’ malicious prosecution claim in July 2019. The trial court
granted this motion on November 6, 2019. Plaintiffs appealed on December 31, 2019.
II. Discussion
¶ 45 Plaintiffs raise several arguments on appeal, each will be addressed in turn.
A. Motion for Summary Judgment
¶ 46 Plaintiffs first contend the trial court erred in granting summary judgment in
favor of Defendants Johnson, Bellamy, and Hastings with respect to Plaintiffs’
malicious prosecution cause of action. Defendants Johnson, Bellamy, and Hastings
contend Plaintiffs’ claim is barred by the affirmative defense of governmental
immunity.
¶ 47 We review the “grant of a motion for summary judgment . . . [to determine]
whether any genuine issue of material fact exists and whether the moving party is
entitled to judgment as a matter of law.” Becker v. Pierce, 168 N.C. App. 671, 674, FOX V. JOHNSON
608 S.E.2d 825, 828 (2005) (quoting Hoffman v. Great Am. Alliance Ins. Co., 166 N.C.
App. 422, 425, 601 S.E.2d 908, 911 (2004)).
A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.
Hoffman, 166 N.C. App. at 424-26, 601 S.E.2d at 911 (internal quotation marks and
citations omitted). Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that any party is
entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021).
In order to support a malicious prosecution claim, [a] plaintiff must establish the following four elements: “(1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.”
Martin v. Parker, 150 N.C. App. 179, 182, 563 S.E.2d 216, 218 (2002) (quoting Best v.
Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994)); see also Cook v. Lanier,
267 N.C. 166, 169, 147 S.E.2d 910, 914 (1966). “In cases for malicious prosecution in FOX V. JOHNSON
which the earlier proceeding is civil, rather than criminal, in nature, our courts
require a plaintiff to additionally plead and prove a fifth element: ‘special damages.’
” Fuhs, v. Fuhs, 245 N.C. App. 367, 372, 782 S.E.2d 385, 388 (2016).
¶ 48 Here, the parties do not dispute the “earlier proceeding” terminated “in favor
of the plaintiff,” as Sanders was acquitted of accessing a federal computer and the
remaining charges against Plaintiffs were dismissed. Nor do the parties dispute that
the earlier proceeding was criminal in nature. Thus, our review is limited to the
remaining elements.
1. Governmental Immunity
¶ 49 Because Defendants Johnson, Bellamy, and Hastings contend Plaintiffs’
malicious prosecution and civil conspiracy claims are barred by the affirmative
defense of governmental immunity, we first determine whether these Defendants
acted with malice. See Lambert v. Town of Sylva, 259 N.C. App. 294, 301, 816 S.E.2d
187, 193 (2018) (“Governmental immunity is an affirmative defense.”); see also Turner
v. City of Greenville, 197 N.C. App. 562, 566, 677 S.E.2d 480, 483 (2009). “An
affirmative defense is a defense that introduces a new matter in an attempt to avoid
a claim, regardless of whether the allegations of the claim are true.” Strickland v.
Hedrick, 194 N.C. App. 1, 10, 669 S.E.2d 61, 37 (2008) (quoting Williams v. Pee Dee
Elec. Membership Corp., 130 N.C. App. 298, 301-02, 502 S.E.2d 645, 647-48 (1998)).
¶ 50 “Under the doctrine of governmental immunity, a municipality is not liable for FOX V. JOHNSON
the torts of its officers and employees if the torts are committed while they are
performing a governmental function.” Taylor v. Ashburn, 112 N.C. App. 604, 607,
436 S.E.2d 276, 278 (1993) (citations omitted). When individual officers are named
as defendants, the action “is one against the State for the purposes of applying the
doctrine of sovereign immunity.” Houpe v. City of Statesville, 128 N.C. App. 334, 341,
497 S.E.2d 82, 87 (1998). “[T]he actions of a city and its officials in investigating and
disciplining a city police officer accused of criminal activity are likewise encompassed
within the rubric of ‘governmental functions.’ ” Id. at 341, 497 S.E.2d at 87.
¶ 51 While police officers are “public officials” for the purposes of governmental
immunity, they “are not shielded from liability if their alleged actions were corrupt
or malicious . . . .” Shuping v. Barber, 89 N.C. App. 242, 248, 365 S.E.2d 712, 716
(1988) (citations omitted); see also Strickland, 194 N.C. App. at 10, 669 S.E.2d at 67;
Cline v. James Bane Home Bldg., LLC., ___ N.C. App. ___, 2021-NCCOA-266, ¶26
(“Public official’s immunity precludes suits against public officials in their individual
capacities and protects them from liability ‘[a]s long as a public officer lawfully
exercises the judgment and discretion with which he is invested by virtue of his office,
keeps within the scope of his official authority, and acts without malice or corruption
. . . .’ ” (citation omitted)). “[A]n official may be held liable when he acts maliciously
or corruptly, when he acts beyond the scope of his duties, or when he fails to act at
all.” Turner, 197 N.C. App. at 566, 677 S.E.2d at 483 (citation omitted). Thus, only FOX V. JOHNSON
tortious “actions that are malicious, corrupt, or outside the scope of official duties will
pierce the cloak of official immunity.” Id. (citation, internal quotation marks,
brackets, and ellipsis omitted). “[I]f the plaintiff alleges an intentional tort claim, a
determination of governmental immunity is unnecessary since, in such cases, neither
a public official nor a public employee is immunized from suit in his individual
capacity.” Beck v. City of Durham, 154 N.C. App. 221, 230, 573 S.E.2d 183, 189 (2002)
(citation, internal quotation marks, and brackets omitted).
¶ 52 A plaintiff alleging malicious or intentional acts by a governmental official
faces a high bar:
It is well settled that absent evidence to the contrary, it will always be presumed that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. This presumption places a heavy burden on the party challenging the validity of public officials’ actions to overcome this presumption by competent and substantial evidence. Moreover, evidence offered to meet or rebut the presumption of good faith must be sufficient by virtue of its reasonableness, not by mere supposition. It must be factual, not hypothetical; supported by fact, not by surmise.
Strickland, 194 N.C. App. at 10-11, 669 S.E.2d at 68 (citations, internal quotation
marks, and brackets omitted.) Thus, to determine whether Plaintiffs’ malicious
prosecution claim against Defendants Johnson, Bellamy, and Hastings in their
official capacities is barred under the doctrine of government immunity, we must first
determine whether Defendants Johnson, Bellamy, and Hastings acted with malice. FOX V. JOHNSON
¶ 53 “In order to give a cause of action for malicious prosecution, such prosecution
must have been maliciously instituted.” Cook, 267 N.C. at 170, 147 S.E.2d at 914
(citations omitted). “ ‘Malice’ in a malicious prosecution claim may be shown by
offering evidence that defendant ‘was motivated by personal spite and a desire for
revenge’ or that defendant acted with ‘ “reckless and wanton disregard” ’ for plaintiffs’
rights.” Becker, 168 N.C. App. at 676, 608 S.E.2d at 829 (citation omitted); see also
Moore v. City of Creedmoor, 345 N.C. 356, 371, 481 S.E.2d 14, 24 (1997) (citation
omitted).
¶ 54 Plaintiffs must “offer evidence tending to prove that the wrongful action of
instituting the prosecution was done for actual malice in the sense of personal ill-will,
or under the circumstances of insult, rudeness or oppression, or in a manner which
showed the reckless and wanton disregard of [Plaintiffs’] rights.” Mathis v. Dowling,
230 N.C. App. 311, 316, 749 S.E.2d 284, 288 (2013) (citation omitted). “In an action
for malicious prosecution, the malice element may be satisfied by a showing of either
actual or implied malice. Implied malice may be inferred from want of probable cause
in reckless disregard of the plaintiff's rights.” Kirschbaum v. McLaurin Parking Co.,
188 N.C. App. 782, 789-90, 656 S.E.2d 683, 688 (2008) (quoting Nguyen v.
Burgerbusters, Inc., 182 N.C. App. 447, 452, 642 S.E.2d 502, 506-07 (2007)).
Evidence that the chief aim of the prosecution was to accomplish some collateral purpose, or to forward some private interest, e.g., to enforce collection of a debt is FOX V. JOHNSON
admissible both to show the absence of probable cause and to create an inference of malice, and such evidence is sufficient to establish a prima facie want of probable cause.
Cook, 267 N.C. at 170, 147 S.E.2d at 914 (citation, internal ellipses, and alteration
¶ 55 Here, Plaintiffs contend Defendants Johnson, Bellamy, and Hastings acted
with ill-will by “with[holding] exculpatory evidence from the SBI in an effort to incite
criminal charges against Plaintiffs”; “destroy[ing] exculpatory evidence”;
“manipulating the ‘black book’ by providing a modified version to the SBI”; and
providing false or misleading statements to the SBI, media, and to fellow law
enforcement officers.
¶ 56 A review of the record, however, demonstrates that Plaintiffs lack specific
knowledge of what information Defendants Johnson, Bellamy, and Hastings provided
to the SBI. Specifically, Sanders conceded in his deposition that he had “no personal
knowledge of any discussion or conversation any defendant had with anyone at the
SBI,” other than reading through their SBI interviews “after the fact.” Sanders
further conceded that he “had no personal knowledge of any of these defendants”
instructing other law enforcement officers “not to provide information to the SBI.”
Assuming arguendo that there were inconsistencies in Defendants Johnson, Bellamy,
and Hastings’s SBI, IA, and RMA interviews, Plaintiffs failed to establish these
inconsistencies were intentional and not mere misstatements over the course of an FOX V. JOHNSON
approximately two-year long investigation.
¶ 57 Further, Plaintiffs thought Chief Wray was “the real target of the SBI’s
investigation.” Fox testified during his deposition that he had “very little contact,”
with Defendants Bellamy and Hastings. Fox conceded that he did not believe “the
charges were personal against [him,]” but that the charges “were just a means to an
end.” Further, Fox stated his belief that Defendant Hastings’s “actions or motivation
was prompted by [Defendant Hastings’s] relationship with Wray.” Moreover,
Defendant Hastings testified in Sanders’s criminal trial, and was found to be “a
helpful witness” for Sanders.
¶ 58 Notably, Plaintiffs do not argue the actions taken by Defendants Johnson,
Bellamy, and Hastings were against departmental policy or standard procedure
where there are concerns of racial and criminal misconduct within a police
department. While Plaintiffs take issue with their suspension; a “gag order,” that
prevented them from speaking about their pending criminal charges; and statements
made during several investigations, Plaintiffs do not argue this was an unusual
response to public concerns of corruption and racial misconduct. Because Plaintiffs
failed to show any statement was made maliciously, “in the sense of personal ill-will,”
we find Plaintiffs’ malicious prosecution claim against Defendants Johnson, Bellamy,
and Hastings in their official capacities is barred by the doctrine of governmental
immunity. FOX V. JOHNSON
2. Probable Cause
¶ 59 “Where the claim is one for malicious prosecution, probable cause has been
properly defined as the existence of such facts and circumstances, known to the
defendants at the time, as would induce a reasonable man to commence a
prosecution.” Best, 337 N.C. at 749, 448 S.E.2d at 510 (internal quotation marks,
alterations, and citations omitted); see also Cook, 267 N.C. at 170, 147 S.E.2d at 914
(citation omitted). “Whether probable cause exists is a mixed question of law and
fact,” however, “the existence of probable cause is a question of law for the court.”
Best, 337 N.C. at 750, 448 S.E.2d at 510 (citing Cook, 367 N.C. at 171, 147 S.E.2d at
914).
¶ 60 To determine probable cause, we must consider “whether a man of ordinary
prudence and intelligence under the circumstance would have known that the charge
had no reasonable foundation.” Wilson v. Pearce, 105 N.C. App. 107, 113-14, 412
S.E.2d 148, 151 (1992) (citation omitted). “The critical time for determining whether
or not probable cause existed is when the prosecution begins.” Hill v. Winn-Dixie
Charlotte, Inc., 100 N.C. App. 518, 521, 397 S.E.2d 347, 349 (1990) (citation omitted).
The existence of probable cause will defeat a malicious prosecution claim. Adams v.
City of Raleigh, 245 N.C. App. 330, 335, 782 S.E.2d 108, 113 (2016). “Probable cause
does not demand any showing that such a belief be correct or more likely true than
false. A practical, nontechnical probability that incriminating evidence is involved is FOX V. JOHNSON
all that is required.” Id. at 337, 782 S.E.2d at 114 (internal quotation marks and
citation omitted). “A probability of illegal activity . . . is sufficient.” Id. (citation
¶ 61 Here, there was substantial evidence to support a “probability” that Sanders
had impermissibly accessed a government computer. While Plaintiffs contend all
Defendants provided false and misleading information during the SBI investigation,
Plaintiffs do not contest Cullop’s assertions that Sanders asked Cullop to make a
“mirror copy” of a laptop computer. Nor do Plaintiffs argue Cullop’s notes regarding
the serial number of the laptop he examined are inaccurate. Further, the HUD agent
that allowed Fulmore to use the laptop in question made several statements to the
SBI regarding Sanders’s requests to access Fulmore’s computer. Moreover, Sanders
conceded in his IA interview that he “placed [a] monitoring device[]” on a city
computer. Sanders further stated he put a “key-catcher” device on two officers’
computers, in order to capture these officers’ usernames and passwords.
¶ 62 There was also evidence presented that would lead “a man of ordinary
prudence and intelligence” to believe Plaintiffs obstructed justice and conspired to do
so. Defendant Slone stated in his SBI interview Sanders had instructed him not to
provide certain evidence to Defendant Rankin during a meeting between Defendant
Slone and Plaintiffs. While Plaintiffs argue this statement was false, misleading, and
inconsistent with Defendant Slone’s statements during the IA and RMA FOX V. JOHNSON
investigations, Hill corroborated Defendant Slone’s statements. Hill recounted the
meeting he attended with Defendant Slone and two detectives. “Hill related that
[Defendant Slone] was trying to give the other detectives some information he had
obtained,” but the detectives “did not want it because if they took the information,
they would have to give it to whoever was working on some case.” Hill recalled the
information Defendant Slone was trying to give to the detectives “was supposed to be
a picture of a police officer with a stripper or someone else.”
¶ 63 Defendant Slone and Hill’s statements to the SBI are further corroborated by
Defendant Rankin’s interview. Defendant Rankin was assigned to investigate
allegations of police officers soliciting prostitutes. After Defendant Rankin received
his assignment, he thought “it was like an invisible wall was being put up to keep
him from talking to” an informant. Later, Defendant Slone admitted he was asked
to “lead [Defendants] Rankin and Cuthbertson in the wrong direction and give them
false information to keep them from ever meeting with the informant.”
¶ 64 Based upon Defendants Slone and Rankin’s statements to the SBI,
corroborated in part by Hill, “a reasonable and prudent man, under the
circumstances” would believe the obstruction of justice charge was not without a
foundation. Our review reveals Plaintiffs failed to meet their burden to show that
Defendants Johnson, Bellamy, and Hastings acted with malice or without probable
cause. We hold the trial court did not err by granting summary judgment with FOX V. JOHNSON
respect to Plaintiffs’ malicious prosecution cause of action.
B. Motion to Dismiss
¶ 65 Plaintiffs contend that the trial court erred in granting Defendants’ motions to
dismiss their civil conspiracy and abuse of process claims. We review an order
granting a motion to dismiss de novo. S.N.R. Mgmt. Corp. v. Danube Partners, 141,
LLC, 189 N.C. App. 601, 606, 659 S.E.2d 442, 447 (2008). We consider “whether the
complaint states a claim for which relief can be granted under some legal theory when
the complaint is liberally construed and all the allegations included therein are taken
as true.” Chidnese v. Chidnese, 210 N.C. App. 299, 304, 708 S.E.2d 725, 730 (2011).
¶ 66 As a preliminary matter, we note, “North Carolina is a notice pleading state.”
White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013) (citation omitted).
Under the “notice theory of pleading” a statement of claim is adequate if it gives sufficient notice of the claim asserted “to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine res judicata, and to show the type of case brought.”
Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 165 (1970) (citation and internal
alteration omitted); see also Hill v. Perkins, 84 N.C. App. 644, 647, 353 S.E.2d 686,
688 (1987). Under our State’s notice theory of pleading, plaintiffs must allege facts,
not mere conclusions, to support their asserted causes of action. See Sutton, 277 N.C.
at 98-99, 176 S.E.2d at 163. “While the concept of notice pleading is liberal in nature,
a complaint must nonetheless state enough to give the substantive elements of a FOX V. JOHNSON
legally recognized claim or it may be dismissed under Rule 12(b)(6).” Raritan River
Steel Co. v. Cherry, Bekart, & Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988)
(citation omitted). However, “if a complaint pleads facts which serve to defeat the
claim it should be dismissed.” Id. (citing Sutton, 277 N.C. at 102, 176 S.E.2d at 166).
3. Civil Conspiracy
¶ 67 Plaintiffs contend the trial court erred in dismissing their civil conspiracy
cause of action against Defendants Johnson, Bellamy, Hastings, Kelly, Slone, Rankin,
and Cuthbertson. Specifically, Plaintiffs contend they sufficiently alleged the cause
of action under Rule 8 of our rules of civil procedure. See N.C. Gen. Stat. § 1A-1, Rule
8(a) (2021). All Defendants contend that if Plaintiffs sufficiently pled factual
allegations to survive a motion to dismiss, Plaintiffs’ civil conspiracy claim is barred
by the doctrines of intra-corporate or government immunity.
¶ 68 We note “that there is not a separate civil action for civil conspiracy in North
Carolina.” Dove v. Harvey, 168 N.C. App. 687, 690, 608 S.E.2d 798, 800 (2005) (citing
Shope v. Boyer, 268 N.C. 401, 404-05, 150 S.E.2d 771, 773-74 (1966); Fox v. Wilson,
85 N.C. App. 292, 300, 354 S.E.2d 737, 742-43 (1987)).
In civil conspiracy, recovery must be on the basis of sufficiently alleged wrongful overt acts. The charge of conspiracy itself does nothing more than associate the defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one might be admissible against all. FOX V. JOHNSON
Shope, 268 N.C. at 405, 150 S.E.2d at 773-74 (citation omitted); Fox, 85 N.C. App. at
301, 354 S.E.2d at 743 (citation and quotation marks omitted); see also Dickens v.
Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981) (“The common law action for
civil conspiracy is for damages caused by acts committed pursuant to a conspiracy
rather than for the conspiracy, i.e., the agreement, itself.” (citation and internal
alteration omitted)).
A threshold requirement in any cause of action for damages caused by acts committed pursuant to a conspiracy must be the showing that a conspiracy in fact existed. The existence of a conspiracy requires proof of an agreement between two or more persons. Although civil liability for conspiracy may be established by circumstantial evidence, the evidence of the agreement must be sufficient to create more than a suspicion or conjecture in order to justify submission to a jury.
Dove, 168 N.C. App. at 690-91, 608 S.E.2d at 801 (internal citations and quotation
marks omitted). “Thus to create civil liability for conspiracy,” Dickens, 302 N.C. at
456, 276 S.E.2d at 357, the Plaintiffs must have alleged “(1) an agreement between
two or more individuals; (2) to do an unlawful act or to do an lawful act in an unlawful
way; (3) resulting in injury to plaintiff inflicted by one or more of the conspirators;
and (4) pursuant to a common scheme.” Privette v. Univ. of North Carolina, 96 N.C.
App. 124, 139, 385 S.E.2d 185, 193 (1989) (citation omitted); see also Elliott v. Elliott,
200 N.C. App. 259, 264, 683 S.E.2d 405, 409 (2009). Circumstantial evidence may be
used to prove the existence of an agreement; however, “the evidence of the agreement FOX V. JOHNSON
must be sufficient to create more than a suspicion or conjecture in order to justify
submission of the issue to a jury.” Dickens, 302 N.C. at 456, 276 S.E.2d at 337 (citing
Edwards v. Ashcraft, 201 N.C. 246, 159 S.E. 355 (1931). See also State v. Martin, 191
N.C. 404, 132 S.E. 16 (1926)).
¶ 69 “We must judge the sufficiency of the complaint by the facts alleged and not by
the pleader’s conclusions. . . . The repeated use of the words combined, conspired, and
agreed together to injure [Plaintiffs] . . . [are] insufficient.” Shope, 268 N.C. at 405,
150 S.E.2d at 774 (internal citation omitted). Recovery, in the context of a civil
conspiracy claim, “must be on the basis of [the sufficiency] of [the] alleged wrongful
overt acts.” Dove, 168 N.C. App. at 690, 608 S.E.2d at 800 (citation omitted).
¶ 70 Here, Plaintiffs’ “claims [are] essentially derived from allegations that
[Defendants] knowingly gave false information” to the RMA and SBI. See Hawkins
v. Webster, 78 N.C. App. 589, 590, 337 S.E.2d 682, 683 (1985). This Court, however,
has previously held that “[a] civil action may not be maintained for a conspiracy to
give false testimony.” Id. at 592, 337 S.E.2d at 684 (citation omitted). In Hawkins,
this Court affirmed the dismissal of a civil conspiracy claim where the plaintiff
alleged “defendants knowingly gave false information to the FBI and IRS agents who
conducted the investigation that resulted in criminal charges being filed against [the
plaintiff].” Id. at 590, 337 S.E.2d at 683. Similarly, this Court declined to find a civil
conspiracy cause of action where a plaintiff alleged “the Defendants conspired FOX V. JOHNSON
together to commit the unlawful acts of having Plaintiffs falsely arrested and
assert[ed] that Defendants ‘knowingly provid[ed] false and misleading affidavits and
other false information in order to secure the issuance of [] bogus arrest warrants.”
Strickland, 194 N.C. App. at 19, 669 S.E.2d at 72-73 (internal quotation marks
¶ 71 Moreover, Plaintiffs failed to allege any specific factual allegations about the
purported conspiracy. Plaintiffs’ complaint is devoid of any factual allegations
regarding a meeting or agreement between all Defendants. While Plaintiffs pleaded
all Defendants “reached an agreement,” and “agreed to gather information,” such
claims constitute mere conclusions regarding an alleged agreement. See Shope, 268
N.C. at 405, 150 S.E.2d at 774. The complaint is devoid of any factual allegations
regarding how or when all Defendants reached such an agreement.
¶ 72 Viewing Plaintiffs’ complaint in light of our precedent, “a conspiracy to provide
false [statements] in order to secure Plaintiffs’ arrest . . . is not recognized in North
Carolina.” Strickland, 194 N.C. App. at 19, 669 S.E.2d at 73. Therefore, the trial
court did not err when it dismissed Plaintiffs’ civil conspiracy cause of action. As
Plaintiffs failed to sufficiently plead factual allegations to support their claim of civil
conspiracy, we need not address whether Plaintiffs’ claim is barred by the affirmative
defenses of intra-corporate immunity or government immunity.
C. Abuse of Process FOX V. JOHNSON
¶ 73 Next, Plaintiffs contend the trial court erred in dismissing their abuse of
process claim asserted against Defendants Johnson, Bellamy, and Hastings. The
trial court’s order dismissing Plaintiffs’ claim for abuse of process does not provide its
reasoning for granting the motion to dismiss. On appeal, however, Plaintiffs first
address whether their claim was barred by the applicable statute of limitations. The
parties dispute whether Plaintiffs preserved any remaining arguments regarding the
sufficiency of their pleadings with respect to this cause of action.
1. Statute of Limitations
¶ 74 Plaintiffs first contend their abuse of process claim is not barred by the
applicable statute of limitations because the limitations period commences upon “the
termination of the acts which constitute the abuse complained of.” See 1 AM.JUR.2d,
Abuse of Process, § 27. Because to support a claim of abuse of process, Plaintiffs must
sufficiently plead acts that occur after the institution of the process, we conclude that
the limitations period commences upon the last tortious act about which Plaintiffs
complained.
Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff’s cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all.
The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. In some instances, it may operate FOX V. JOHNSON
to bar the maintenance of meritorious causes of action. When confronted with such a cause, the urge is strong to write into the statute exceptions that do not appear therein. In such case, we must bear in mind Lord Campbell’s caution: Hard cases must not make bad law.
Congleton v. City of Asheboro, 8 N.C. App. 571, 573-74, 174 S.E.2d 870, 872 (1970)
(internal quotation marks and citations omitted).
¶ 75 Abuse of process is an intentional tort, and the tort of abuse of process has a
three-year limitations period. See Barnette v. Woody, 242 N.C. 424, 431, 88 S.E.2d
223, 227 (1955) (citation omitted); see also Cox v. Jefferson-Pilot, 80 N.C. App. 122,
124, 341 S.E.2d 608, 610 (1986). “Ordinarily, the period of the statute of limitations
begins to run when the plaintiff’s right to maintain an action for the wrong alleged
accrues.” Rafferty v. Wm. C. Vick Constr. Co., 291 N.C. 184, 184, 230 S.E.2d 405, 407
(1976) (internal quotation marks, citation, and emphasis omitted). “[A] cause of
action accrues to an injured party so as to start the running of the statute of
limitations when he is at liberty to sue . . . .” Id. at 182, 230 S.E.2d at 407 (citation
¶ 76 Plaintiffs, relying on secondary sources and Barnette v. Woody, argue the
applicable limitations period commenced upon “the termination of the acts which
constitute the abuse complained of.” See 1 AM.JUR.2d, Abuse of Process, § 27 (1994);
see also J.A. Brock, Annotation, When the Statute of Limitations Begins to Run
Against Action for Abuse of Process, 1 A.L.R.3d 953 (2016). In Barnette, the plaintiff FOX V. JOHNSON
alleged the defendant conspired “to procure the admission of the plaintiff to the State
Hospital.” 242 N.C. at 426, 88 S.E.2d at 224. The plaintiff was committed to the State
Hospital on March 21, 1950 and was released on June 8, 1950. Id. The plaintiff
brought a civil action seeking punitive and actual damages, but it was not clear
“whether [the plaintiff] is seeking to recover on an action for malicious prosecution,
abuse of process, or for false imprisonment.” Id. at 430, 88 S.E.2d at 227. Our
Supreme Court proceeded to apply a three-year statute of limitations from the date
of the plaintiff’s release from a state hospital. Id. at 431, 88 S.E.2d at 227 (“Hence,
the three-year statute of limitations pleaded by the defendants, G.S. § 1-52, would
not be a bar to an action for malicious prosecution or abuse of process.”).
¶ 77 Plaintiffs contend Barnette supports the proposition that the applicable
statute of limitations commenced when the claim for abuse of process accrued, that
is, upon the last tortious act after process was instituted. We agree.
¶ 78 Defendants Johnson, Bellamy, and Hastings argue Plaintiffs’ claim accrued
upon their arrest on September 21, 2007, and thus, is time barred. Defendants
Johnson, Bellamy, and Hastings rely on Cox v. City of Jefferson-Pilot to argue
Plaintiffs’ claim accrued upon their arrest date. In Cox, the dispositive issue was
whether the plaintiff was mentally competent to enter into a general release of
liability. See Cox, 80 N.C. App. at 124-25, 341 S.E.2d at 610. The plaintiff argued he
was mentally incompetent at the time he executed a release of liability and, thus, the FOX V. JOHNSON
statute of limitations was tolled during his incompetency. Id. The plaintiff’s wife had
previously been arrested for embezzling approximately $152,000.00 from her
employer. Id. at 122, 341 S.E.2d at 609. The plaintiff was subsequently arrested and
jailed for approximately two weeks. Id. After the plaintiff’s arrest, his wife’s
employer and its insurance company filed a civil suit against the plaintiff and his
wife, attaching the couple’s property. Id. at 123, 341 S.E.2d at 609. The civil suit
was settled by a consent judgment, signed by both the plaintiff and his wife. Id.
Thereafter, on September 26, 1978, the plaintiff executed a release of liability in favor
of the employer and insurance company. Id.
¶ 79 In 1983, the plaintiff filed a civil action in which he did not specify a cause of
action but alleged his wife’s employer and its insurance company wrongfully initiated
his arrest and the seizure of his property. Id. The plaintiff further alleged he was
mentally incompetent at the time he executed the release. Id. On appeal, he asserted
he sufficiently pleaded an abuse of process claim. Id. at 124, 341 S.E.2d at 610. This
Court found the plaintiff was mentally competent at the time he entered into a
general release of liability. Id. at 126, 341 S.E.2d at 611. As such, the limitations
period was not tolled, and Plaintiff’s abuse of process cause of action was time barred.
Id. at 128, 341 S.E.2d at 612.
¶ 80 Here, in contrast, Plaintiffs did not execute a release of liability in favor of any
named defendant. Instead, Plaintiffs “pleaded continuing tortious acts after the FOX V. JOHNSON
arrest date,” the last of which concluded upon the dismissal of all remaining charges
against Plaintiffs on February 23, 2009. These acts include Defendants Johnson,
Bellamy, and Hastings’s purported failure to provide exculpatory information during
the course of the investigations and Sanders’ criminal trial; and the continuous use
of the pending criminal prosecution of Sanders and Fox “in an attempt to elicit
information from Fox and Sanders,” and force them out of the GPD. Thus, the statute
of limitations for Plaintiffs’ abuse of process cause of action did not run until February
23, 2012, three years after the termination of the last alleged act of abuse of process
of which the Plaintiffs complained.
¶ 81 While our dissenting colleague proposes that we conclude the limitations
period commenced upon the institution of the process, to do so would muddle the
distinction between the claims of malicious prosecution and abuse of process and
would ignore precedent establishing an improper act after the initiation of the process
as an essential element of a colorable abuse of process claim. See Chidnese, 210 N.C.
App. at 304, 708 S.E.2d at 731; see also Fox v. Barrett, 90 N.C. App. 135, 138, 367
S.E.2d 412, 414 (1988) (affirming the dismissal of an abuse of process cause of action
where the plaintiff failed to allege “any improper act by defendant occurring
subsequent to the initiation of the prior lawsuit.” (emphasis in original)).
2. Sufficiency of the Pleadings
¶ 82 Plaintiffs further contend they sufficiently pleaded actions by Defendants FOX V. JOHNSON
Johnson, Bellamy, and Hastings that arose to abuse of process.10 We agree.
Protection against wrongful litigation is afforded by a cause of action for either abuse of process or malicious prosecution. The legal theories underlying the two actions parallel one another to a substantial degree, and often the facts of a case would support a claim under either theory. The distinction between an action for malicious prosecution and one for abuse of process is that malicious prosecution is based upon malice in causing the process to issue, while abuse of process lies for its improper use after it has been issued.
Chidnese, 210 N.C. App. at 304, 708 S.E.2d at 731 (citations and internal quotation
marks omitted). “Abuse of process is the misuse of legal process for an ulterior
purpose. It consists in the malicious misuse or misapplication of that process . . . to
accomplish some purpose not warranted or commended by the writ.” Fowle v. Fowle,
263 N.C. 724, 728, 140 S.E.2d 398, 401 (1965) (citations omitted); see also Melton v.
Rickman, 225 N.C. 700, 703, 36 S.E.2d 276, 278 (1945) (“[M]alicious prosecution is
the prosecution with malice and without probable cause, abuse of process is the
misuse of legal process for an ulterior purpose.”). Thus, the distinction between
malicious prosecution and abuse of process is that malicious prosecution requires a
claim to be improperly instituted, whereas abuse of process requires a wrongful or
10 Defendants Johnson, Bellamy, and Hastings contend this argument is not preserved for
appellate review, see N.C. R. App. P. 28(a), because Plaintiffs’ “abuse of process argument in their principal appellants concerns only the statute of limitations.” (emphasis in original). However, in their appellate brief, Plaintiffs argue several alleged acts by Defendants Johnson, Bellamy, and Hastings constitute tortious acts for an abuse of process cause of action. FOX V. JOHNSON
improper act after the institution of process. Chidnese, 210 N.C. App. at 304, 708
S.E.2d at 731 (citations omitted); see also Fox, 90 N.C. App. at 138, 367 S.E.2d at 414.
¶ 83 “Abuse of process requires both an ulterior motive and an [improper] act in the
use of the legal process . . . [during] the regular prosecution of the proceeding, and
that both . . . relate to . . . defendant’s purpose to achieve . . . [using] the process some
end foreign to those it was designed to effect.” Fuhs v. Fuhs, 245 N.C. App. 367, 375,
782 S.E.2d 385, 390 (2016) (citation and emphasis omitted); see also Klander v. West,
205 N.C. 524, 529, 171 S.E.2d 782, 783 (1933) (recognizing “the two essential
elements are the existence of an ulterior purpose and an act in the use of the process
not proper in the regular prosecution of the proceeding”). The “ulterior motive”
requirement for an abuse of process claim is satisfied “when the plaintiff alleges that
the prior action was initiated by defendant or used by him to achieve a collateral
purpose not within the normal scope of the process used.” Fuhs, 245 N.C. App. at
375, 782 S.E.2d at 390 (citation omitted). “The act requirement is satisfied when the
plaintiff alleges that once the prior proceeding was initiated, the defendant committed
some willful act whereby he sought to use the existence of the proceeding to gain
advantage of the plaintiff in respect to some collateral matter.” Id. (emphasis added).
¶ 84 Defendants Johnson, Bellamy, and Hastings contend Plaintiffs’ claim must fail
as Plaintiffs did not plead any improper act by these Defendants after Plaintiffs’
indictment. See Fox, 90 N.C. App. at 138, 367 S.E.2d at 414 (affirming the dismissal FOX V. JOHNSON
of an abuse of process cause of action where the plaintiff failed to allege “any improper
act by defendant occurring subsequent to the initiation of the prior lawsuit.”
(emphasis in original)); see also Hewes v. Wolfe, 74 N.C. App. 610, 610-13, 330 S.E.2d
16, 18-20 (1985) (affirming the denial of a motion to dismiss the plaintiff’s abuse of
process cause of action where defendant brought an earlier civil action for the
misappropriation of partnership assets and subsequently filed a notice of lis pendens
on the plaintiff’s property). “[T]he gravamen of a cause of action for abuse of process
is the improper use of the process after it has been issued.” Chidnese, 210 N.C. App.
at 311, 708 S.E.2d at 735 (citation omitted) (emphasis in original).
¶ 85 In the instant case, Plaintiffs alleged
73. Defendants Johnson, Bellamy, . . . and Hastings, acting in their official capacities as duly assigned agents of the City of Greensboro, and the City of Greensboro willfully and maliciously took actions in the use of the legal process that were not proper in the regular prosecution of the proceeding by, inter alia,
i. Using the threat of prosecution, and the proceeding itself, as leverage against Fox and Sanders in an attempt to elicit information from Fox and Sanders;
ii. Using the threat of prosecution, and the proceeding itself, as leverage to pressure Fox and Sanders out of the [GPD]; and
iii. Failing to produce exculpatory information with respect to the charges against Fox and Sanders despite defendants’ affirmative duty to provide said information. Defendants were charged with an affirmative duty to provide said information due to: FOX V. JOHNSON
1. The fiduciary relationship between the defendants and Fox and Sanders;
2. The defendants’ involvement in the initiation of the investigation of Fox and Sanders; and
3. The defendant’s involvement in the investigation of Fox and Sanders.
74. Defendants Johnson, Bellamy, . . . Hastings, and the City of Greensboro acted with an ulterior motive or purpose by taking the aforementioned actions for the purposes of discrediting former Chief of Police David Wray, advancing the defendants’ own careers, and for the purpose of appeasing a segment of the African American community.
While Defendants Johnson, Bellamy, and Hastings are correct in that Plaintiffs must
allege acts after the initiation of the proceeding, Plaintiffs satisfied this requirement
by pleading Defendants Johnson, Bellamy, and Hastings failed to produce
exculpatory information during the investigation of Plaintiffs and Sanders’
subsequent criminal trial.11
¶ 86 Additionally, Plaintiffs asserted allegations that Defendants Johnson,
Bellamy, and Hastings “acted with an ulterior motive” by failing to produce such
information in order to gain “leverage to pressure Fox and Sanders out of the [GPD],”
11 While the record on appeal reveals Defendant Hastings testified on Sanders’s behalf during
Sanders’s trial for impermissibly accessing a government computer, we do not consider this fact in our analysis. Plaintiffs’ abuse of process claim was dismissed on August 13, 2012. In reviewing the grant of a motion to dismiss, we consider “whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true.” Chidnese, 210 N.C. App. at 304, 708 S.E.2d at 730 (emphasis added) (citation omitted). FOX V. JOHNSON
and “in an attempt to elicit information from Fox and Sanders.” These acts constitute
continuous actions by Defendants Johnson, Bellamy, and Hastings, as the duty to
provide exculpatory information arose during the investigation of the Wray
administration and did not cease until Plaintiffs were no longer under the threat of
criminal prosecution. Because Plaintiffs sufficiently alleged Defendants Johnson,
Bellamy, and Hastings acted with an ulterior motive, we hold the trial court erred in
dismissing Plaintiffs’ abuse of process claim. See Hewes v. Wolfe, 74 N.C. App. 610,
614, 330 S.E.2d 16, 19 (1985) (finding allegations the defendant acted “for the purpose
of injuring and destroying the credit business of the plaintiffs and in general to
oppress the plaintiffs[]” sufficient to survive a motion to dismiss). Accordingly, we
reverse the trial court’s order with respect to this cause of action, and remand for
further proceedings.
III. Conclusion
¶ 87 After careful review, we hold the trial court did not err by dismissing Plaintiffs’
civil conspiracy claim against all Defendants. Nor did the trial court err in granting
summary judgment with respect to Plaintiffs’ malicious prosecution claim against
Defendants Johnson, Bellamy, and Hastings. However, the trial court erred in
dismissing Plaintiffs’ abuse of process cause of action, as the claim was not time
barred and Plaintiffs sufficiently pleaded facts to support their claim. Accordingly,
we affirm in part, reverse in part, and remand to the trial court for further FOX V. JOHNSON
proceedings not inconsistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Judge ZACHARY concurs.
Judge JACKSON concurs in part and dissents in part by separate opinion. No. COA20-438 – Fox v. Johnson
JACKSON, Judge, concurring in part and dissenting in part.
¶ 88 I concur in part, joining the majority opinion except for the portion holding that
the statute of limitations for Plaintiffs’ abuse of process claim had not run until 23
February 2012. In my view, the allegations pleaded in the fourth count of Plaintiffs’
complaint allege two separate abuse of process claims: (1) for the threat and initiation
of criminal proceedings against Plaintiffs in September 2007; and (2) for alleged
violations of Brady v. Maryland, 373 U.S. 83 (1963), in the trial of Plaintiff Sanders,
while Plaintiff Fox was awaiting trial.
¶ 89 With respect to the first claim, I would hold that the statute of limitations had
run on 17 September 2010—three years after Plaintiffs were indicted on these
charges in Guilford County Superior Court. I would therefore affirm the trial court’s
grant of the motion to dismiss this claim because it was tolled until 20 September
2011, and Plaintiffs did not initiate this action until January 2012—well after
September 2010, when the three-year statute of limitations had run, and several
months after the September 2011 re-filing deadline, when the tolling period had
expired.12
¶ 90 With respect to the second claim, however, I would hold that the allegations in
12 On 23 March 2010, Plaintiffs filed a federal lawsuit asserting this claim. Fox v. City of Greensboro, 807 F. Supp.2d 476, 480 (M.D.N.C. 2011). Under 28 U.S.C. § 1367(d), it was tolled during the pendency of the federal case until 30 days after 27 August 2011, when the case was dismissed. See 28 U.S.C. § 1367(d) (2019) (providing for tolling of state law claims brought in federal court “while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period”); Fox, 807 F. Supp.2d at 500-01 (dismissing Plaintiffs’ state law claims without prejudice). FOX V. JOHNSON
JACKSON, J., concurring in part and dissenting in part
the complaint fail to demonstrate whether or when the claim for abuse of process
because of the Brady violation accrued. I would therefore vacate the trial court’s
order granting the motion to dismiss in part and remand the case to the trial court
for further proceedings on this claim. Accordingly, I respectfully dissent from the
portion of the majority opinion related to the statute of limitations on Plaintiffs’ abuse
of process claim(s).
IV. Standard of Review
The standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint’s material factual allegations are taken as true. Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim. On appeal of a 12(b)(6) motion to dismiss, this Court conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court’s ruling on the motion to dismiss was correct.
Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428-29 (2007) (internal
marks and citations omitted).
V. Analysis
D. Abuse of Process Compared to Malicious Prosecution
¶ 91 “The distinction between an action for malicious prosecution and one for abuse FOX V. JOHNSON
of process is that malicious prosecution is based upon malice in causing [] process to
issue, while abuse of process lies for its improper use after it has been issued.”
Barnette v. Woody, 242 N.C. 424, 431, 88 S.E.2d 223, 227 (1955). Whereas “[i]n an
action for malicious prosecution the plaintiff must prove malice, want of probable
cause and termination of the prosecution or proceeding in plaintiff’s favor[,] . . . the
only essential elements of abuse of process are[] . . . the existence of an ulterior
purpose and . . . an act in the use of the process not proper in the regular prosecution
of the proceeding.” Id., 88 S.E.2d at 227-28 (citations omitted). Thus, while a claim
of malicious prosecution requires a showing that “the defendant (1) initiated or
participated in the earlier proceeding, (2) did so maliciously, (3) without probable
cause, and (4) the earlier proceeding ended in favor of the plaintiff[,]” Turner v.
Thomas, 369 N.C. 419, 425, 794 S.E.2d 439, 444 (2016) (citation omitted), in an action
for abuse of process, the plaintiff need only show “(1) that the defendant had an
ulterior motive to achieve a collateral purpose not within the normal scope of the
process used, and (2) that the defendant committed some act that is a malicious
misuse or misapplication of that process after issuance to accomplish some purpose
not warranted or commanded by the writ[,]” Pinewood Homes, Inc. v. Harris, 184 N.C.
App. 597, 602, 646 S.E.2d 826, 831 (2007) (internal marks and citation omitted).
Accordingly, unlike an action for malicious prosecution, which can only be brought
after a prior proceeding terminates in the plaintiff’s favor, Turner, 369 N.C. at 425, FOX V. JOHNSON
794 S.E.2d at 444, an action for abuse of process can be commenced as soon as the
process at issue is filed or interposed, see e.g., Hewes v. Wolfe, 74 N.C. App. 610, 614,
330 S.E.2d 16, 19 (1985) (holding that assertion of a claim for abuse of process was
proper once the defendants “filed notices of lis pendens and notices of lien on property
owned by [the] plaintiffs”).
E. When the Statute of Limitations Begins to Run
¶ 92 Generally speaking, “a cause of action accrues [] and the statute of limitations
begins to run as soon as the right to institute and maintain a suit arises.” Penley v.
Penley, 314 N.C. 1, 20, 332 S.E.2d 51, 62 (1985) (citations omitted). Application of
this general rule to a claim for abuse of process suggests that the statute of limitations
for abuse of process begins to run as soon as the plaintiff’s cause of action accrues,
i.e., upon the filing or interposition of the allegedly abusive process. Cf. Hewes, 74
N.C. App. at 614, 330 S.E.2d at 19. Yet the question of when the three-year statute
of limitations begins to run appears unsettled under North Carolina law, as the
parties’ divergent positions and the authority cited in support of these positions
illustrates.
¶ 93 Plaintiffs cite our Supreme Court’s decision in Barnette v. Woody, 242 N.C. 424,
88 S.E.2d 223 (1955), in support of their argument that the statute of limitations
began to run “from the termination of the acts which constitute[d] the abuse
complained of.” (Citation omitted.) The plaintiff in Barnette was involuntarily FOX V. JOHNSON
committed to a mental institution for 76 days and subsequently brought an action for
abuse of process against various individuals involved in her involuntary commitment.
Id. at 426-31, 88 S.E.2d at 224-27. The defendants pleaded the three-year statute of
limitations in defense because the process at issue was filed with the Clerk of
Superior Court of Person County on 21 March 1950 and the plaintiff did not initiate
the action until 26 May 1953—three years, two months, and five days after the
process was filed. See id. at 428, 431, 88 S.E.2d at 225, 227. Our Supreme Court
rejected the argument that the plaintiff’s claim was time-barred because it was filed
more than three years after the date the process was filed with the Clerk of Superior
Court, seeming to reason that the statute of limitations began to run upon the
plaintiff’s release, or on some other day after 21 March 1950. Id. at 431, 88 S.E.2d at
227.
¶ 94 Defendants cite our Court’s decision in Cox v. Jefferson-Pilot, 80 N.C. App. 122,
341 S.E.2d 608 (1986), in support of their argument that the statute of limitations
began to run on the date of Plaintiffs’ arrests. In Cox, the plaintiff was interrogated,
arrested, and jailed for 14 days after his wife was charged with embezzling funds
from her employer. Id. at 122, 341 S.E.2d at 609. After the charges against him were
dismissed, the plaintiff brought an action against his wife’s employer for abuse of
process. Id. at 123, 341 S.E.2d at 609-10. Our Court held that the statute of
limitations for the plaintiff’s claim began to run on the day the plaintiff was arrested FOX V. JOHNSON
and charged in connection with his wife’s embezzlement. See id. at 122-24, 341 S.E.2d
at 609-10. Thus, while consistent with the general rule that statutes of limitation
begin to run when the underlying cause of action accrues, our holding in Cox appears
to conflict with our Supreme Court’s decision in Barnette.
¶ 95 I believe that the comments to the Second Restatement of Torts suggest a
resolution of this apparent conflict. See Restatement 2d of Torts § 682 cmt. a. These
comments state that “[t]he gravamen of the misconduct [in an action for abuse of
process] . . . is the misuse of process, no matter how properly obtained, for any
purpose other than that which it was designed to accomplish.” Id. That is,
“subsequent misuse of [] process, [] properly obtained, constitutes the misconduct for
which [] liability is imposed[.]” Id. Accordingly, I interpret our Supreme Court’s
decision in Barnette to describe a situation where process was properly filed, but the
process was subsequently abused, despite being filed for a proper purpose at the
outset. The recitation of the facts that precedes the Court’s opinion in Barnette
supports this interpretation, in my view: in the facts, it is noted that the Clerk of
Superior Court of Person County had initially ordered the plaintiff to be involuntarily
committed for 30 days, and subsequently ordered that she continue to be committed
for an additional 30 days; our Supreme Court also stated, however, that the plaintiff
was not released until after being confined in the mental institution for 76 days—16
days longer than ordered. See 242 N.C. at 428, 431, 88 S.E.2d at 225-26, 227. FOX V. JOHNSON
¶ 96 I would therefore hold that the three-year statute of limitations for abuse of
process begins to run at the time the cause of action accrues, which is as soon as the
process is improperly filed or interposed, see Hewes, 74 N.C. App. at 614, 330 S.E.2d
at 19, or when process properly filed or interposed becomes misused subsequently, as
I believe happened in Barnette.
F. Abuse of Process Alleged in Plaintiffs’ Complaint
¶ 97 As noted above, I believe the allegations pleaded in the fourth count of
Plaintiffs’ complaint allege two separate claims for abuse of process: (1) for the threat
and initiation of criminal proceedings against Plaintiffs in September 2007; and (2)
for alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), in the trial of Plaintiff
Sanders, while Plaintiff Fox was awaiting trial. Plaintiffs alleged in the fourth count
of their complaint in relevant part as follows:
73. Defendants Johnson, Bellamy, Kelly and Hastings, acting in their official capacities as duly assigned agents of the City of Greensboro, and the City of Greensboro willfully and maliciously took actions in the use of legal process that were not proper in the regular prosecution of the proceeding by, inter alia,
i. Using the threat of prosecution, and the proceeding itself, as leverage against Fox and Sanders in an attempt to elicit information from Fox and Sanders;
ii. Using the threat of prosecution, and the proceeding itself, as leverage to pressure Fox and Sanders out of the Greensboro Police Department; and
iii. Failing to produce exculpatory information with FOX V. JOHNSON
respect to the charges against Fox and Sanders despite defendants’ affirmative duty to provide said information. Defendants were charged with an affirmative duty to provide said information due to:
1. The fiduciary relationship between the defendants and Fox and Sanders;
2. The defendants’ involvement in the initiation of the investigation of Fox and Sanders; and
3. The defendants’ involvement in the investigation of Fox and Sanders.
¶ 98 Regarding the first claim—the actions alleged in subsections i. and ii. of
paragraph 73 of Plaintiffs’ complaint—I would hold that the statute of limitations
had run on 17 September 2010, three years after Plaintiffs were indicted on the
charges in Guilford County Superior Court. Assuming the truth of the allegations in
the complaint, as we must when reviewing a motion to dismiss, Burgin, 181 N.C. App.
at 512, 640 S.E.2d at 428-29, I believe Plaintiffs’ cause of action for abuse of process
stemming from the charges in September 2007 accrued on the date they were
indicted—17 September 2007—because as I understand it, this claim is that the
indictment itself was legal process improperly filed in Guilford County Superior
Court with an ulterior motive. Accordingly, I would affirm the trial court’s grant of
the motion to dismiss on this claim because Plaintiffs did not initiate this action until
January 2012, several months after the expiration of the 30-day deadline to re-file FOX V. JOHNSON
the claim after the federal lawsuit was dismissed without prejudice to state-law
claims on 27 August 2011.
¶ 99 Regarding the second claim—the actions alleged in subsection iii. of paragraph
73 of Plaintiffs’ complaint—I would hold that the allegations in the complaint fail to
demonstrate whether or when the claim for abuse of process because of the Brady
violation accrued. The allegations in subsection iii. of paragraph 73 do not specify
when the alleged failure to produce exculpatory information occurred, and it appears
that this alleged failure to produce exculpatory information could have occurred
within the three-year statute of limitations, and it might be likely that it did. I would
therefore vacate the trial court’s order granting the motion to dismiss in part and
remand the case to the trial court for further proceedings on this claim.
VI. Conclusion
¶ 100 In sum, I concur in the majority opinion in part, and dissent from it in part,
because the allegations in the complaint allege two separate abuse of process claims,
and I would hold that the statute of limitations has run on one, but it is impossible to
tell whether it has on the other.
Related
Cite This Page — Counsel Stack
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