Jones v. City of Greensboro

277 S.E.2d 562, 51 N.C. App. 571, 1981 N.C. App. LEXIS 2305

• Court: Court of Appeals of North Carolina
• Decided: May 5, 1981
• Docket: 8018SC728
• Status: Published

Opinion

HEDRICK, Judge.

Plaintiff first assigns error to the order allowing defendants’ motion for summary judgment with respect to plaintiffs claims for relief nos. 1, 2, 5, 6, 7, 8, and 9.

G.S. § 1-54, the one-year statute of limitations, in pertinent part provides:

Within one year an action or proceeding —

(3) For libel, slander, assault, battery, or false imprisonment.

The record before us demonstrates, as did the record before the trial court at the time of the hearing on defendants’ motion to dismiss and for judgment on the pleadings and, in the alternative, for summary judgment, that plaintiffs alleged claims for false arrest (first claim for relief), false imprisonment (second claim for relief), assault (sixth claim for relief), and libel of the first warrant (seventh claim for relief) were all barred by the one-year statute of limitations, G.S. § 1-54, since these alleged claims against defendants were commenced on 3 April 1975, and the incidents giving rise to these alleged claims occurred on 10 February 1974, more than one year earlier.

Plaintiff contends, however, that a longer statute of limitations controls in the present case, apparently with respect to defendant City of Greensboro. Plaintiff argues that the appropriate statute of limitations is the two-year statute, G.S. § 1-53, which provides that “[a]ll claims against counties, cities and towns of this State” must be brought within two years after the “maturity of such claims.” Yet, plaintiff concedes that her position is contrary to past decisions in this State, most notably Dennis v. City of Albemarle, 242 N.C. 263, 87 S.E. 2d 561 (1955), which hold that G.S. § 1-53 does not apply to tort actions. In support of her argument, plaintiff cites G.S. § 1-539.15, which does provide for a two year statute of limitations in claims against municipalities, including claims in tort; this statute, however, did not become effective until 1 October 1975, after the incidents giving rise to plaintiffs action occurred and indeed after plaintiffs action had been commenced. See 1975 N.C. Sess. Laws, Ch. 361, § 3. G.S. § 1-539.15 is thus not controlling. We see no reason under the circumstances of this case to reach a different conclusion than the court in Dennis v. City of Albemarle, supra. Plaintiff also argues that certain provisions of the Charter of the City of Greensboro relating to notice and to maintenance of suits against the city dictate a longer limitations period; the Charter, however, provides that these provisions should not be construed to prevent any statute of limitations from commencing to run at the time the claim accrued, or to interfere with the running of any statute of limitations. Plaintiffs contentions as to a longer statute of limitations are therefore meritless.

Plaintiffs fifth claim for relief, conspiracy, would not be barred by the one-year statute of limitations, since the claim alleges a continuing conspiracy on the part of defendants up to the time the trial on the second warrant was “nonsuited” on 26 June 1974, less than one year before plaintiff filed her complaint on 3 April 1975. Plaintiff would nevertheless be precluded from maintaining this claim.

In Daniel Boone Complex, Inc. v. Furst, 43 N.C. App. 95, 258 S.E. 2d 379 (1979), disc. rev. denied, 299 N.C. 120, 261 S.E. 2d 923 (1980), Judge Erwin, speaking for this Court, said:

An action for civil conspiracy will lie when there is an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way, resulting in injury inflicted by one or more of the conspirators pursuant to a common scheme. [Citations omitted.]

Id., at 103, 258 S.E. 2d at 386.

Such an action is not one for damages caused by the conspiracy itself, but is one for damages caused by acts committed pursuant to a formed conspiracy; the charge of conspiracy itself does nothing more than associate defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one defendant might be admissible against all. Shope v. Boyer, 268 N.C. 401, 150 S.E. 2d 771 (1966).

In the present case, plaintiff has alleged generally that defendants assaulted, falsely arrested, falsely imprisoned, libeled, and maliciously prosecuted her, as well as abusing pro cess with respect to her. In addition, plaintiff has alleged generally that defendants conspired to do all these things. Yet plaintiff uses the same alleged acts committed by defendants to support her conspiracy claim as she uses to support her claims for assault, false arrest, false imprisonment, libel, malicious prosecution, and abuse of process. Plaintiff cannot, however, use the same alleged acts to form both the basis of a claim for conspiracy to commit certain torts and the basis of claims for those torts. Since the trial court allowed plaintiff to maintain the other claims, except those barred by the statute of limitations, or by absolute privilege as hereinafter discussed, the court properly entered summary judgment for defendants on plaintiff’s claim for conspiracy.

Plaintiffs eighth claim for relief, libel of the second warrant, would not be barred by the one-year statute of limitations, since the second warrant was not issued until 3 April 1974, and plaintiffs complaint was filed 3 April 1975. The record discloses, however, an insurmountable bar to plaintiffs eighth claim, based upon absolute privilege. In actions for defamation, an absolute privilege attends communications made in the due course of judicial proceedings, Mazzucco v. N.C. Board of Medical Examiners, 31 N.C. App. 47, 228 S.E. 2d 529, disc. rev. denied and appeal dismissed, 291 N.C. 323, 230 S.E. 2d 676 (1976), and thus such communications will not support an action for libel. Jarman v. Offutt, 239 N.C. 468, 80 S.E. 2d 248 (1954). The term “judicial proceeding” is not restricted to trials in civil actions or criminal prosecutions, but includes every proceeding of a judicial nature before a competent court or before a tribunal or officer clothed with judicial or quasijudicial powers. Jarman v. Offutt, supra. Moreover, statements in pleadings and other papers filed in a “judicial proceeding” which are relevant or pertinent to the subject matter in controversy are cloaked with this absolute privilege. Scott v. Statesville Plywood & Veneer Co., 240 N.C. 73, 81 S.E. 2d 146 (1954). In the present case, the record demonstrates that a “judicial proceeding” encompassed the second warrant from the time of its issuance through the trial ending in nonsuit, and clearly the statements in the warrant were relevant and pertinent to the subject matter in controversy. Thus, an absolute privilege attached to the warrant such that plaintiffs alleged claim for libel because of the second warrant was barred by such privilege.

Summary judgment for defendants with respect to plaintiffs first, second, fifth, sixth, seventh, and eighth claims for relief must therefore be affirmed. The propriety of summary judgment in defendants’ favor on plaintiffs ninth claim for relief will be discussed elsewhere in this opinion.

Plaintiffs second assignment of error is set out in the record as follows: “The Court erred in allowing defendants’ motion for a protective order in answering the plaintiffs interrogatories and in ruling on defendants’ motion for summary judgment prior to compelling the defendants to answer the interrogatories.” We fail to see, however, how the court could have committed prejudicial error by these actions. As indicated previously, summary judgment for all defendants with respect to plaintiffs claims for relief nos. 1, 2, 6, and 7 was based on the statute of limitations, while summary judgment for all defendants on plaintiffs eighth claim was based upon absolute privilege. The answers to the interrogatories, on the other hand, did not relate to the time of the commencement of the action or the occurrence of the events upon which these claims were based, nor did they relate to any matters regarding libel or absolute privilege. Summary judgment was also granted for defendants on plaintiffs fifth claim, and the answers to the interrogatories would not have shed any light on that claim. Plaintiff has failed to show any prejudicial error, and thus this assignment of error is without merit.

Plaintiffs third and fourth assignments of error relate to the denial of her motions to amend her complaint. A motion to amend is addressed to the discretion of the trial court, and the trial court’s ruling thereon is not reviewable on appeal in the absence of a showing of abuse of discretion. G.S. § 1A-1, Rule 15(a); Helena Chemical Co. v. Rivenbark, 45 N.C. App. 517, 263 S.E. 2d 305 (1980); Willow Mountain Corp. v. Parker, 37 N.C. App. 718, 247 S.E. 2d 11, disc. review denied, 295 N.C. 738, 248 S.E. 2d 867 (1978). Plaintiff has shown no abuse of discretion on the part of the trial court in denying her motions to amend, and thus the court’s rulings are not reviewable. This assignment of error is without merit.

Plaintiffs fifth assignment of error is set out in the record as follows: “The Court erred in allowing defendants’ Paul B. Calhoun’s, City of Greensboro’s, and the Greensboro Coliseum Complexes’ [sic] motion for summary judgment as to all remaining causes of action.” Plaintiff has not advanced any argument with respect to this assignment of error. It is therefore deemed abandoned. Rule 28(a), Rules of Appellate Procedure; State v. Moore, 301 N.C. 262, 271 S.E. 2d 242 (1980).

Plaintiffs sixth assignment of error is set out in the record as follows: “The Court erred in allowing defendants’ motions for a directed verdict as to certain of plaintiffs causes of action at the close of plaintiffs evidence.” The record discloses that plaintiff offered evidence in support of her alleged claims for relief nos. 3 (malicious prosecution with respect to the first warrant), 4 (malicious prosecution with respect to the second warrant), 10 (abuse of process with respect to the first warrant), and 11 (abuse of process with respect to the second warrant) with respect to defendants Apple, Briggs, Wrenn, and City of Greensboro. The evidence presented by plaintiff tended to show the following:

On 10 February 1974, plaintiff, a counselor employed by the Greensboro City Schools, had gone to the Greensboro Coliseum with her husband and son to see a circus scheduled to start at 2:00 p.m. Upon entering the Coliseum parking lot at approximately 1:30 p.m., plaintiff paid fifty cents for a ticket to park. No one told her where she could or could not park. Plaintiff parked her car in the “east section” or “right” of the parking lot, next to a white car. Several other cars were parked in the vicinity, while other people were parking “to the left.” There was no one in the immediate area giving directions as to where to. park and there were no signs that indicated plaintiff could not park there.

Plaintiff locked her car and fixed her hair while her husband and son got out and proceeded toward the Coliseum. The plaintiff got out and walked toward her husband and son. She noticed that they were talking to a uniformed officer, identified as defendant Briggs. Briggs asked plaintiffs husband to move the car, to which plaintiffs husband replied, “I’m not driving the car. She is.” Briggs then said, “Well, it’s going to be towed away,” and plaintiffs husband replied, “Okay.” Plaintiffs husband and son then “kind of moved on” and Briggs approached plaintiff and asked her if she was driving the car. Briggs told her that she needed to move the car. She replied that she “didn’t think” that she was going to move the ear, and she asked who was in charge. Briggs answered, “Lieutenant Apple,” and crossed over to the other side of the lot to confer with another officer, identified as defendant Apple. Apple “yelled back” at plaintiff in a “loud” voice, saying, “Move it.”

Briggs returned and again informed plaintiff that she needed to move the car. Briggs stated that she had an “option,” that she either move the vehicle or it would be towed and she would have to pay $15.00. Plaintiff replied, “Sir, I don’t think Pm going to move the car today and you will have to tow it in.” Plaintiff testified that the reasons for her refusal were that her family did not want to “miss the opening,” and that she felt “rather than wreck somebody else’s car in the parking lot, it was easier to let it stay there” until she could get to her husband to let him come move the car. Briggs did not tell her that she would be arrested if she did not move the car, or why he wanted the car moved.

Plaintiff continued to proceed toward the Coliseum, in order to talk with her husband about moving the car. Then she “felt these two hands” on her and she was “turned around” by Apple and Briggs. One of the officers said, “You’re under arrest,” to which plaintiff replied, “What for?” The officers then escorted plaintiff back through the parking lot, moving her at a pace “much faster than the ordinary pace.” Plaintiff was being held under her armpits. Plaintiff asked if she could go tell her husband and son that she was being arrested, but the officers refused. Plaintiff was placed in the back of a police car parked on the west side of the parking lot “from fifteen to twenty minutes.” While she was sitting in the police car, the officers looked at the contents of her purse. The officers refused to let plaintiff “pull the window down” to talk with her husband. A few minutes later, another officer, identified as defendant Wrenn, drove up, and plaintiff was transferred to Wrenn’s vehicle. Plaintiff asked if they would read her “my rights,” and one of the officers did so. Plaintiff was taken to the magistrate’s office by Wrenn, where Wrenn gave a statement as to “what the situation was” and signed an affidavit. Plaintiff was then served with a warrant and was released from custody. Up until the time she was taken from the Coliseum parking lot to the magistrate’s office in downtown Greensboro, plaintiff testified that she never saw anyone else move a car, any cars get towed, or anyone else get “arrested.”

Plaintiffs evidence further tended to show that following the events of 10 February 1974, plaintiff made a motion to quash the warrant on 6 March 1974, and the motion was allowed on 3 April 1974. While plaintiff was present at court on 3 April 1974, she was served with a second warrant, signed by Briggs. Plaintiff was brought to trial on the second warrant on 26 June 1974, but the case was “nonsuited.” Calling the above-described events “humiliating and intimidating,” plaintiff testified that there had been several “repercussions” from the incident, such as her son was now “frightened to death” of every police officer he saw, and that plaintiff was “worried” that her chances for promotion at work had been affected. At the close of plaintiffs evidence, the court directed a verdict for these four defendants on plaintiffs third, tenth, and eleventh claims, and for defendant Wrenn on plaintiffs fourth claim.

In order to recover in an action for malicious prosecution, the plaintiff must establish that the defendant instituted or caused to be instituted against him a criminal proceeding (or, in certain instances, civil actions) with malice and without probable cause, and that such proceeding has been terminated in the plaintiffs favor. Koury v. John Meyer of Norwich, 44 N.C. App. 392, 261 S.E. 2d 217, disc. rev. denied, 299 N.C. 736, 267 S.E. 2d 662 (1980); Denning v. Lee, 35 N.C. App. 565, 241 S.E. 2d 706 (1978). An action for malicious prosecution must be based upon valid process, Bassinov v. Finkle, 261 N.C. 109, 134 S.E. 2d 130 (1964), and if a warrant does not accurately and clearly allege all the constituent elements of an offense, the warrant is invalid and cannot be used as the basis for a malicious prosecution action. Hawkins v. Reynolds, 236 N.C. 422, 72 S.E. 2d 874 (1952). To recover in an action for abuse of process, the plaintiff must establish (1) the existence of an ulterior purpose on the part of the defendant, and (2) an act in the use of the process which is not proper in the regular prosecution of the proceeding. Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223 (1955).

We are of the view that the evidence presented by plaintiff, when considered in the light most favorable to plaintiff, is insufficient to require submission to the jury of the claims for malicious prosecution and abuse of process with respect to the first warrant and for abuse of process with respect to the second warrant, or to require submission to the jury of the claim for malicious prosecution based on the second warrant with respect to defendant Wrenn. The record demonstrates that the first warrant, issued 10 February 1974, did not accurately and clearly allege all the constituent elements of an offense, as evidenced by the court’s granting plaintiffs motion to quash the warrant on 3 April 1974. Furthermore, we have examined the warrant which was quashed and conclude that it does not accurately and clearly allege the elements of an offense. The first warrant was therefore invalid and could not support an action for malicious prosecution. Also, plaintiff presented no evidence upon which an inference could be drawn as to either ulterior purpose on the part of defendants Apple, Briggs, Wrenn, and City of Greensboro or any improper act by them in the use of either warrant in the course of plaintiffs prosecution. In addition, the evidence clearly indicates that defendant Wrenn had nothing to do with the prosecution of plaintiff after the issuance of the first warrant. The trial court properly directed verdicts in favor of defendants Apple, Briggs, Wrenn, and City of Greensboro on plaintiffs claims nos. 3, 10, and 11, and in favor of defendant Wrenn on plaintiffs fourth claim. This assignment of error is without merit.

Plaintiff next contends, based upon her seventh assignment of error, that the trial court erred in instructing the jury at the close of plaintiffs evidence that it had allowed certain of defendants’ motions for a directed verdict. Plaintiff argues that such information is “not necessary for the jury to fully understand the proceedings before it” and to bring such information to the attention of the jury is “prejudicial.” We, however, disagree, and find no prejudicial error in the court’s comments, and this assignment of error will not be sustained.

When counsel for defendants had concluded his direct examination of defendant Apple, the trial court directed further questions to Apple concerning the flow of traffic in the Coliseum parking lot and the effect of not parking in accordance with the plan used to park cars in the lot when there are consecutively scheduled events at the Coliseum. In addition, while defendant Briggs was on the stand as a defense witness, the court asked questions of Briggs concerning whether he and defendant Apple had told plaintiff “to move her car.” These questions by the court form the basis of plaintiffs eighth assignment of error. Plaintiff argues that the questions directed to Apple were “hypothetical questions” which “adjudicated defendant [Apple] an expert entitled to speak to hypothetical situations and have his opinion believed as an expert,” and that the testimony of Apple in response to the questions was irrelevant. With respect to the questions directed to Briggs, plaintiff argues that Briggs’ answers were “non-responsive” and should have been limited for “corroboration.” As a result of the court’s questions, plaintiff contends she was “prejudiced.” We do not agree.

The questions asked by the court were for the purpose of clarifying the testimony of Apple and Briggs, and the testimony elicited in response was relevant to the matters in issue. We note that plaintiff was allowed in each instance to ask questions of the witness following the examination by the court. In our view, plaintiff has failed to show any prejudicial error in the court’s questioning of Apple and Briggs, and this assignment of error is without merit.

By her ninth, tenth, and eleventh assignments of error, plaintiff contends that the court erred in denying her motions as to defendants Apple, Briggs, and City of Greensboro for a directed verdict on plaintiff’s fourth claim, and for peremptory instructions on the elements of malicious prosecution, including such an instruction on the issue of “malice imputed.” We disagree. Defendants Apple, Briggs, and City of Greensboro offered evidence tending to show the following: Defendant Briggs was the only officer present at the court hearings on the criminal charges arising out of the incident. At the 3 April 1974 hearing, the first warrant was quashed “for some technicality” and the District Attorney instructed Briggs on how the warrant should have been drawn. Briggs then went to the magistrate’s office and had the second warrant drawn in accordance with the instructions. Briggs brought it back to the courtroom and served it upon plaintiff. Briggs testified at the 26 June 1974 trial on the second warrant, after which the trial judge dismissed the case.

We are of the opinion that the foregoing evidence, together with any inferences raised in defendants’ favor from plaintiffs evidence, is sufficient to raise questions for the jury to deter mine regarding the existence of malice, either actual or imputed, and the existence of the other essential elements of malicious prosecution. The court’s rulings challenged by these assignments of error were therefore proper, and these assignments of error are without merit.

Plaintiffs twelfth assignment of error is addressed to the court’s instructions to the jury. Based on this assignment of error, plaintiff argues (1) the court should have peremptorily instructed on each element of malicious prosecution; (2) the court’s definition of “probable cause” should have referred to a “cautious man” instead of a “person of ordinary prudence”; (3) the court failed to charge that advice of counsel does not preclude recovery for plaintiff; (4) the court should have charged that defendants Apple and Briggs were “off-duty working as private citizens in the capacity of parking lot attendants;” (5) the court should have peremptorily charged that “the parking lot was private property owned by the city in its proprietary function,” such that defendants Apple and Briggs were without authority to arrest plaintiff under G.S. § 20-114.1; (6) the court’s definition of malice was “inaccurate and incomplete”; (7) the court should have charged that malice could be imputed from, and that damages could be based upon, the actions of defendants beginning 10 February 1974, and not 3 April 1974, when the warrant upon which the claim was based was issued; (8) the court should have repeated verbatim the instructions given with respect to the first issue when instructing upon the second issue; and (9) the court should not have repeated the erroneous instructions in response to a question from the jury, when the answer to the question asked did not require such repetition. We have examined the trial court’s charge in light of plaintiffs contentions, and find that the charge, when considered contextually as a whole, is fair, correct, and adequate, and is free from prejudicial error. Plaintiffs twelfth assignment of error is without merit.

Plaintiffs thirteenth assignment of error, contending that the court erred in failing to set aside the verdict and in not entering judgment for plaintiff notwithstanding the verdict is meritless.

Finally, plaintiff contends that the court erred in entering summary judgment for all defendants on plaintiffs ninth claim for relief. We note at the outset that the court considered only the pleadings in entering summary judgment for defendants with respect to this claim for relief, but defendants’ motion was one for dismissal pursuant to Rule 12(b)(6), for judgment on the pleadings, and in the alternative for summary judgment. We therefore treat the court’s order pursuant to defendants’ motion, insofar as it dealt with plaintiffs ninth claim, as an order dismissing plaintiffs ninth claim pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted.

With respect to her ninth claim for relief, plaintiff argues that dismissal was improper because this claim, despite the fact that a specific reference to 42 U.S.C. § 1983 was not made, stated a claim for relief under that statute. Section 1983 at the time this suit was instituted, provided:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Municipalities have been held to be “persons” under 42 U.S.C. § 1983, such that they are amenable to suit under the statute. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); see also Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398, rehearing denied, — U.S. —, 64 L. Ed. 2d 850, 100 S. Ct. 2979 (1980). State courts have concurrent jurisdiction with federal courts to entertain actions under § 1983, and thus § 1983 claims can be instituted and maintained in the courts of this State. Williams v. Greene, 36 N.C. App. 80, 243 S.E. 2d 156, disc. rev. denied and appeal dismissed, 295 N.C. 471, 246 S.E. 2d 12 (1978).

In Presnell v. Pell, 298 N.C. 715, 260 S.E. 2d 611 (1979), the Supreme Court of this State (per Justice Exum) stated:

A complaint is deemed sufficient to withstand a motion to dismiss under Rule 12(b)(6) where no insurmountable bar to recovery appears on the face of the complaint and the complaint’s allegations give adequate notice of the nature and extent of the claim. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970).

Id., at 719, 260 S.E. 2d at 613. In addition, a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Presnell v. Pell, supra; Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970). In testing the sufficiency of the claim, the complaint must be liberally construed, Benton v. W.H. Weaver Construction Co., 28 N.C. App. 91, 220 S.E. 2d 417 (1975), and when the allegations give sufficient notice of the wrong of which plaintiff complains, the incorrect choice of the legal theory upon which the claim is bottomed should not result in dismissal if the allegations are sufficient to state a claim under some legal theory. Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979).

The above stated rules are no different for claims under § 1983. See Slavin v. Curry, 574 F. 2d 1256, rehearing denied, 583 F. 2d 779 (5th Cir., 1978); Williams v. Vincent, 508 F. 2d 541 (2d Cir. 1974); Cruz v. Cardwell, 486 F. 2d 550 (8th Cir. 1973); Kauffman v. Moss, 420 F. 2d 1270 (3d Cir. 1970), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970).

When the allegations in plaintiffs complaint are liberally construed in light of the foregoing rules of substance and procedure, we hold they are sufficient to state a claim for relief under 42 U.S.C. § 1983 against defendants Apple, Briggs, Wrenn, Calhoun, and City of Greensboro. Defendants Greensboro Police Department and Greensboro Coliseum Complex would not be amenable to suit under § 1983 since they are component parts of defendant City of Greensboro and as such lack the capacity to be sued. Thus, we hold the trial court erred in dismissing plaintiffs ninth claim for relief for failure to state a claim upon which relief could be granted with respect to defendants Apple, Briggs, Wrenn, Calhoun, and City of Greensboro.

The result is: Summary judgment for all defendants with respect to claims for relief nos. 1, 2, 5, 6, 7, and 8 is affirmed; summary judgment for defendants Calhoun, Greensboro Police Department, and Greensboro Coliseum Complex on the remaining claims for relief (except for plaintiffs ninth claim for relief with respect to Calhoun) is affirmed; judgment directing verdict in favor of defendants Apple, Briggs, Wrenn, and City of Greensboro on claims for relief nos. 3,10, and 11 is affirmed; no error in the trial with respect to the fourth claim for relief; judgment dismissing the ninth claim for relief as to defendants Apple, Briggs, Wrenn, Calhoun, and City of Greensboro is reversed and the cause is remanded to the Superior Court, Guilford County, for further proceedings.

Affirmed in part; no error in part; reversed and remanded in part.

Judges Webb and Hill concur.