IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-111 No. COA16-112
Filed: 20 December 2016
Franklin County, No. 14 CVS 354
FREDERICK SAMUEL LOPP, Plaintiff,
v.
JOEL ANDERSON, Individually and in his Official Capacity; KENT WINSTEAD, SHERIFF OF FRANKLIN COUNTY, in his Official Capacity; FRANKLIN COUNTY; GARRETT STANLEY, Individually and in his Official Capacity; ANDY CASTANEDA, Individually and in his Official Capacity; SHERRI BRINKLEY, Individually and in her Official Capacity; LOUISBURG POLICE DEPARTMENT; and THE TOWN OF LOUISBURG, Defendants.
____________________________________
No. COA16-112
Franklin County, No. 14 CVS 353
RODDIE McKINLEY LOPP, Plaintiff,
JOEL ANDERSON, Individually and in his Official Capacity; KENT WINSTEAD, SHERIFF OF FRANKLIN COUNTY, in his Official Capacity; FRANKLIN COUNTY; GARRETT STANLEY, Individually and in his Official Capacity; ANDY CASTANEDA, Individually and in his Official Capacity; SHERRI BRINKLEY, Individually and in her Official Capacity; LOUISBURG POLICE DEPARTMENT; and THE TOWN OF LOUISBURG, Defendants.
Appeal by Plaintiffs from orders entered 3 November 2015 by Judge Robert H.
Hobgood in Superior Court, Franklin County. Heard in the Court of Appeals 22
August 2016. LOPP V. ANDERSON & LOPP V. ANDERSON
Opinion of the Court
Stainback, Satterwhite & Zollicoffer, PLLC, by Paul J. Stainback, for Plaintiffs-Appellants.
Womble Carlyle Sandridge & Rice, LLP, by Christopher J. Geis, for Defendants-Appellees Joel Anderson, Sheriff Kent Winstead, and Franklin County.
Pinto Coates Kyre & Bowers, PLLC, by Richard L. Pinto and Andrew G. Pinto, for Defendants-Appellees Garrett Stanley, Andy Castaneda, Sherri Brinkley, Louisburg Police Department, and Town of Louisburg.
McGEE, Chief Judge.
I. Facts
The events relevant to this appeal occurred on 28 June 2009. On that date,
Roddie McKinley Lopp (“Roddie”) lived with his parents, Mary Lopp and Frederick
Samuel Lopp (“Frederick”) (Frederick together with Roddie, “Plaintiffs”) in
Louisburg. Roddie had two young children (“the children”), whose mother was Jodie
Braddy (“Jodie”). Roddie and Jodie never married, and Jodie subsequently married
Doug Braddy (“Doug”). On 28 June 2009, Roddie and Jodie shared custody of the
children under the terms of a custody order. Pursuant to this custody order, Roddie
was to deliver the children to Jodie by 6:00 p.m. on 28 June 2009. Deviation from
established transfer times could only be made by the “mutual consent” of Roddie and
Jodie. Roddie contends his attorney spoke with Jodie’s attorney prior to 28 June
2009, and an agreement was reached whereby Roddie would keep the children past
28 June 2009 to make up for times when Jodie had kept the children during Roddie’s
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custodial periods. The record includes nothing beyond Roddie’s testimony and
affidavit supporting the existence of this agreement.
According to Jodie, after Roddie failed to appear by 6:00 p.m. on 28 June 2009,
Jodie decided to drive to the Louisburg Police Department for assistance in retrieving
the children. Jodie brought the custody order with her, which she showed to police
officers. Jodi asked for assistance from the officers because she was worried that
Roddie “could possibly get violent because [she and Roddie] had had such a physical
history.” Jodie also informed the officers that Roddie kept firearms in his house.
After speaking with the on-duty magistrate, an officer informed Jodie that the
Louisburg police would assist her.
Officers Garrett Stanly1 (“Officer Stanly”), Andy Castaneda (“Officer
Castaneda”), and Sherri Brinkley (“Officer Brinkley”) were in the parking lot of the
police station preparing to leave for Plaintiffs’ house when Deputy Joel Anderson
(“Deputy Anderson”) of the Franklin County Sheriff’s Department (Deputy Anderson,
along with the above three officers “Defendant Officers”), passed by and agreed to join
them. Defendant Officers headed to Plaintiffs’ house, and Jodie and Doug followed
in their own automobile.
1 Although his name is written as “Garrett Stanley” on the complaint, orders granting summary judgment, and on notices of appeal, in his affidavit Officer Stanly struck out the spelling of “Stanley,” and hand-wrote “Stanly,” underneath his signature. We will use the spelling “Stanly” throughout the body of this opinion.
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The following is Roddie’s account of the events that occurred at his home on 28
June 2009. Defendant Officers approached Roddie in his yard and “proceeded to
confront him and insisted upon the return of the children to Jodi[e.]” Roddie told
Defendant Officers that he wanted to call his attorney so his attorney could explain
that an agreement had been reached allowing Roddie to keep the children for some
extra period of time. According to Roddie’s deposition testimony, he told Defendant
Officers: “‘Well, I’m going to go in and call . . . my attorney and then get a copy of the
consent order and show you.’” Roddie testified: “There was [sic] no words after that.
All four of them took me down, beat me, kicked me, assaulted me.” Roddie testified
that he had done nothing to provoke Defendant Officers, and that all four Defendant
Officers “assaulted” him. Roddie testified that all four Defendant Officers punched
and kicked him as he was lying on the ground and already handcuffed. Roddie further
testified that he believed Deputy Anderson attempted to shock him with a stun gun
as Roddie was “getting into the [police] car[,]” even though he was not resisting.
According to Roddie, Deputy Anderson placed his stun gun on him, and he felt a small
“jolt,” but “not like what I’m used to seeing on TV[.]” Roddie believed the stun gun
didn’t “work[] completely right.”
Concerning the treatment of Frederick, Roddie testified that, after he had been
helped off the ground, he “looked back and [Frederick] was down” on the ground.
Roddie testified that Officer Stanly and Deputy Anderson “were roughing [Frederick]
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up and cuffing him.” Roddie further testified that by “roughing up” he meant Officer
Stanly and Deputy Anderson were punching Frederick in the face and upper body.
In an affidavit, Roddie stated:
[A]s I was led away and taken to the police vehicle I saw my father, Frederick Lopp, who was then 83 years of age, thrown to the ground and assaulted in much the same manner as me, and he [had] to be taken to the hospital later that same night.
In his verified complaint, Frederick alleged that when he “saw his son . . . being
wrongfully harmed and assaulted by” Defendant Officers, he asked Defendant
Officers if they had a warrant and told Defendant Officers they had no right to be
there. Frederick then walked toward Roddie and Defendant Officers, “but [Frederick]
was thereafter thrown to the ground by [Defendant Officers]” and “beaten,
handcuffed and generally assaulted[.]” Defendants have included in the record
testimony and affidavits contradicting Plaintiffs’ recitation of the events.
Plaintiffs filed complaints on 22 April 2014 alleging assault and battery, false
imprisonment, and malicious prosecution against Defendant Officers, in both their
official and individual capacities; and against Defendants Franklin County, the Town
of Louisburg, the Louisburg Police Department, and Jerry Jones, as Sheriff of
Franklin County, in both his official and individual capacity. By consent order
entered 1 June 2015, Jerry Jones was dismissed as a Defendant in this matter, and
Kent Winstead was substituted as a Defendant for Jerry Jones, solely in his official
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capacity as Sheriff of Franklin County. Defendants moved for summary judgment by
motions filed 14 September 2015 and 16 September 2015.
Defendants argued that Defendant Officers, acting in their individual
capacities, were entitled to public official immunity; and that the municipal
Defendants, along with the individual Defendants acting in their official capacities,
were protected from suit by governmental immunity. The trial court granted
summary judgment in favor of all Defendants by orders entered 3 November 2015.
Plaintiffs appeal.
II. Analysis
In Plaintiffs’ sole arguments on appeal they contend that the trial court erred
in allowing Defendants’ motions for summary judgment “based upon issues of
sovereign immunity and public officer immunity.” We agree in part and disagree in
part.
“Our standard of review of a trial court’s order granting or denying summary
judgment is de novo. Under a de novo review, the [C]ourt considers the matter anew
and freely substitutes its own judgment for that of the lower tribunal.” Bryson v.
Coastal Plain League, LLC, 221 N.C. App. 654, 656, 729 S.E.2d 107, 109 (2012)
(citations and quotation marks omitted).
“On appeal from summary judgment, the applicable standard of review is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Summary judgment is
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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.” If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. “[W]e review the record in a light most favorable to the party against whom the order has been entered to determine whether there exists a genuine issue as to any material fact.”
Smith v. Harris, 181 N.C. App. 585, 587, 640 S.E.2d 436, 438 (2007) (citations
omitted). However, this Court will only consider those arguments properly set forth
in an appellant’s brief. Bryson, 221 N.C. App. at 655, 729 S.E.2d at 108.
A. Sovereign Immunity
The trial court granted summary judgment in favor of the municipal
Defendants and the individual Defendants in their official capacities based upon
sovereign immunity. The trial court based its orders granting summary judgment on
the following:2
1. Defendants Joel Anderson, Sheriff Kent Winstead, Garrett Stanley, Andy Castaneda, and Sherri a/k/a Shari Brinkley, in their official capacities, by reason of sovereign and/or governmental immunity, because there was no liability insurance providing indemnity coverage because the only policy of insurance for Franklin County and the only policy of insurance for the Town of Louisburg for the time in question did not provide liability coverage for the alleged actions of Defendants Anderson, Winstead, Stanley, Castaneda, and Brinkley against Plaintiff.
2 The orders granting summary judgment in Roddie’s case and Frederick’s case are identical in every relevant way, though there are some minor wording differences.
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2. Franklin County and the Town of Louisburg are entitled to sovereign and/or governmental immunity because the only policy of insurance for Franklin County and the only policy of insurance for the Town of Louisburg for the time in question preserves sovereign and/or governmental immunity for Plaintiff’s claims, and, additionally, under North Carolina Law, a county may not be liable for the acts or omissions of a sheriff or his deputies.
3. Defendants Joel Anderson, Garrett Stanley, Andy Castaneda, and Sherri a/k/a Shari Brinkley, in their individual capacities, are entitled to public officer immunity in that said defendants did not act with malice, were not corrupt, and were not acting outside of or beyond the scope of their duties. Furthermore, Defendants Stanley, Castaneda, and Brinkley conducted the arrest of Plaintiff based on probable cause for acts committed in their presence which would induce a reasonable police officer to arrest Plaintiff. Additionally, because there was probable cause for the arrest of Plaintiff, none of the Plaintiff’s North Carolina State Constitutional Rights have been violated as Defendants Anderson, Stanley, Castaneda, and Brinkley used the minimum amount of force necessary to safely arrest Plaintiff.
4. Defendant Louisburg Police Department is not a public entity that can be sued.
Concerning the issue of sovereign immunity, Plaintiffs make identical
arguments. Their entire arguments are as follows:
The Defendants have all asserted governmental immunity, and contend that they are entitled to immunity unless it is waived through the purchase of insurance. It is clear that both Franklin County and the City of Louisburg had acquired insurance, but the Defendants all contend that the acquisition of this insurance purportedly did not waive as a defense the defense of governmental immunity, and therefore the County and City are still entitled to that
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defense. That is absurd, in that it is a fallacy and contrary to public policy. Why would you purchase insurance which had a provision in it that it would allow the County to not waive governmental immunity as a defense? If that is the case, the County and City are spending money for feckless reasons.
Plaintiffs’ arguments consist of declaratory statements unsupported by any citation
to authority. Plaintiffs do not discuss the provisions of the insurance policies and,
subsequently, Plaintiffs also fail to make any argument concerning the specific
provisions of the policies that they contend served to waive sovereign immunity.
Plaintiffs further fail to cite to any authority in support of any contention that the
relevant insurance policies served to waive sovereign immunity. Plaintiffs’
arguments violate Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure,
and these arguments are therefore abandoned. McKinnon v. CV Indus., Inc., 228
N.C. App. 190, 196, 745 S.E.2d 343, 348 (2013) (citation omitted) (“Although plaintiff
makes a passing reference to these statutes in his brief, he makes no specific
argument that the trial court erred in denying his motion for attorney’s fees under
them. We therefore deem these issues abandoned. N.C.R. App. P. 28(b)(6) (‘Issues
not presented in a party’s brief, or in support of which no reason or argument is
stated, will be taken as abandoned.’)”); N.C. Farm Bureau Mut. Ins. Co. v. Smith,
227 N.C. App. 288, 292, 743 S.E.2d 647, 649 (2013) (“[Appellant] fail[s] to cite any
controlling authority in support of this contention or otherwise explain why it has
merit, and we accordingly deem the issue abandoned. See N.C.R. App. P. 28(b)(6)
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(2013) (providing that an appellant’s argument ‘shall contain citations of the
authorities upon which the appellant relies’).”).
Because Plaintiffs fail to properly argue that relevant insurance policies served
to waive sovereign immunity with respect to Defendants Franklin County, Town of
Louisburg, Louisburg Police Department, or Defendants Joel Anderson, Garrett
Stanly, Andy Castaneda, Sherri Brinkley, and Kent Winstead, acting in their official
capacities, any such arguments are abandoned. McKinnon, 228 N.C. App. at 196, 745
S.E.2d at 348. We affirm the grant of summary judgment in favor of the municipal
Defendants, and the individual Defendants in their official capacities. Because
Plaintiffs agreed, by consent order, to pursue Defendant Kent Winstead in his official
capacity only, no claims remain against Defendant Kent Winstead.
B. Additional Abandoned Arguments
Further, Plaintiffs do not argue on appeal that Franklin County can be held
liable for the acts of its elected Sheriff or his deputies, so any such arguments are also
abandoned. Id. In addition, Plaintiffs make no arguments in their briefs concerning
Defendant Louisburg Police Department. Plaintiffs have therefore abandoned any
arguments that the trial court erred in granting summary judgment in favor of
Defendant Louisburg Police Department. Id.
C. Public Official Immunity
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Plaintiffs also contend the trial court erred in granting summary judgment in
favor of Defendant Officers Garrett Stanly, Andy Castaneda, Sherri Brinkley, and
Joel Anderson, in their individual capacities.
Defendants contend that, because the individual Defendants were public
officials conducting their public duties, their actions were protected by public official
immunity. Police officers engaged in performing their duties are public officials for
the purposes of public official immunity: “a police officer is a public official who enjoys
absolute immunity from personal liability for discretionary acts done without
corruption or malice.” Campbell v. Anderson, 156 N.C. App. 371, 376, 576 S.E.2d 726,
730 (2003) (citations omitted).
The North Carolina rule is that a public official engaged in the performance of governmental duties involving the exercise of judgment and discretion may not be held liable unless it is alleged and proved that his act, or failure to act, was corrupt or malicious, or that he acted outside of and beyond the scope of his duties.
Showalter v. N.C. Dep’t of Crime Control & Pub. Safety, 183 N.C. App. 132, 136, 643
S.E.2d 649, 652 (2007) (citation omitted). Plaintiffs have specifically alleged that
Defendant Officers acted with malice.
“A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” As the moving party, defendants had “the burden of showing that no material issues of fact exist, such as by demonstrating through discovery that the opposing party cannot produce evidence to support an
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essential element of his claim or defense.”
Id. (citations omitted).
1. Roddie McKinley Lopp
As discussed in greater detail above, Roddie testified and averred that all four
Defendant Officers participated in taking him to the ground and punching and
kicking him even though he was not resisting. Roddie further testified he was treated
in that manner simply because he stated he was going to call his attorney to help
clear up a misunderstanding about the custody agreement and his right to keep the
children on 28 June 2009. There are multiple accounts from other witnesses who
contradict Roddie’s description of the events surrounding his arrest, but we must view
the evidence in the light most favorable to Plaintiffs, since they are the non-moving
parties. Smith, 181 N.C. App. at 587, 640 S.E.2d at 438. This Court previously
addressed a similar fact situation in Showalter, where this Court held that denial of
the police officer defendant, Trooper Emmons’, motion for summary judgment was
proper based upon the following evidence:
In support of their motion for summary judgment, defendants offered the deposition testimony of plaintiff and his wife, and the affidavit of Trooper Emmons. Although Trooper Emmons averred in his affidavit that he did not act maliciously or with reckless indifference toward plaintiff, and that all of his actions were “based on probable cause,” plaintiff testified in his deposition that the officer was angry, was “very loud and spitting,” and that when he opened his car door in response to the officer’s command, Trooper Emmons “maced” him, with some of the spray
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going inside plaintiff’s car and contacting his wife. Plaintiff also testified that he told the officer that he needed his crutches, but the officer jerked him out of the car and handcuffed him, notwithstanding plaintiff’s wife telling the trooper that plaintiff was disabled. The court must consider the evidence “in a light most favorable to the nonmoving party,” and “[a]ll inferences of fact must be drawn against the movant and in favor of the nonmovant.” When so considered, the foregoing evidentiary materials are sufficient to create a genuine issue of fact, material to the issue of immunity, as to whether Trooper Emmons actions were done with malice.
Showalter, 183 N.C. App. at 136, 643 S.E.2d at 652 (citations omitted).
In the present case, Roddie’s deposition testimony was as follows: Defendant
Officers came to his home and informed him that they were going to take his children
from him and arrest him. Roddie tried to explain that his attorney and Jodie’s
attorney had reached an agreement whereby Roddie would keep the children for a
few days beyond 28 June 2009, to make up for extra time Jodie had kept the children
in the past. Defendant Officers were not interested in listening to Roddie, so Roddie
said he was going to go inside and call his attorney so his attorney could explain the
situation to Defendant Officers. At that moment, according to Roddie: “They took me
down and assaulted me.” Roddie testified that all four Defendant Officers “took him
down” and then punched and kicked him in front of his children. Roddie was
handcuffed and placed in the back of a police vehicle. Roddie testified that a stun gun
was deployed for no reason while Defendant Officers were attempting to place him in
the vehicle, but he did not think the stun gun functioned properly.
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Although there is both affidavit and deposition testimony challenging Roddie’s
recitation of events, we must look at the evidence in the light most favorable to
Roddie, as the non-moving party. We hold that, similar to the facts in Showalter, the
record evidence raises an issue of material fact concerning whether Defendant
Officers acted with malice. See also Thompson v. Town of Dallas, 142 N.C. App. 651,
656–57, 543 S.E.2d 901, 905–06 (2001) (unnecessarily rough treatment of the plaintiff
by defendant officer, as forecast in the plaintiff’s complaint, sufficient to survive
summary judgment even though defendant forecast evidence to the contrary).
Therefore, relevant to Roddie’s complaint, it was error for the trial court to grant
Defendants’ motion for summary judgment in favor of Defendant Officers, acting in
their individual capacities, based upon public official immunity.3
2. Frederick Samuel Lopp
Defendants tried to depose Frederick on two occasions — 15 January 2015 and
8 September 2015. Unfortunately, Frederick, who turned eighty-nine years old on 26
June 2015, was unable to answer coherently the questions asked of him on either
3We also note that much of Roddie’s argument in his brief before this court focuses on his contention that the officers had no legal authority to assist Jodie in retrieving the children according to the custody order, so the officers were acting “outside of and beyond the scope of [their] duties” simply by entering his property to assist Jodie in retrieving the children. The forecast of evidence does not show that the officers were acting outside or beyond the scope of their duties simply by assisting Jodie according to an existing custody order; it shows only that the officers may have used inappropriate force in dealing with Roddie and Frederick.
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occasion. Therefore, the only evidence in support of Frederick’s claims consists of his
verified complaint, and the deposition testimony and affidavit of Roddie.
Although Frederick could not participate in his attempted depositions,
Frederick’s verified complaint alleges that he was “thrown to the ground[,]” then
“beaten, handcuffed and generally assaulted[.]” Frederick’s complaint alleges that
he suffered “severe injuries” including “lacerations to his face, head, back, knees, legs
and wrists” that required medical attention. Further, Roddie’s testimony and
affidavit include testimony that Roddie witnessed Frederick being assaulted by
Deputy Anderson and Officer Stanly and, more specifically, that these two officers
were punching Frederick in the head and upper body as he was subdued on the
ground.
For the same reasons discussed above concerning Roddie, we hold that,
because there is a material conflict in the evidence asserted by Plaintiffs and
Defendants, summary judgment in favor of Deputy Anderson and Officer Stanly
based upon public official immunity relating to Frederick’s complaint, was error. We
further hold, however, that Frederick failed to present the trial court sufficient facts
to support a finding of malice on the part of Officers Brinkley and Castaneda.
Roddie’s deposition testimony only implicated Deputy Anderson and Officer Stanly
in the alleged mistreatment of Frederick, and Frederick was unable to give any
testimony at all. We affirm the trial court’s grant of summary judgment in favor of
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Officers Brinkley and Castaneda, in their individual capacities, based upon public
official immunity, for Frederick’s claims.
D. Specific Individual Capacity Claims
We must now consider whether summary judgment should have been granted
in favor of the individual Defendants for any of the specific claims Plaintiffs filed
against them. Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989) (citation
omitted) (“If the granting of summary judgment can be sustained on any grounds, it
should be affirmed on appeal. If the correct result has been reached, the judgment
will not be disturbed even though the trial court may not have assigned the correct
reason for the judgment entered.”). We reiterate that none of the following analysis
applies to Officers Castaneda or Brinkley for Frederick’s individual capacity claims
because, as held above, they were protected by public official immunity from
Frederick’s individual capacity claims.
1. Assault and Battery
A law enforcement officer may be held liable for assault and battery in the
course of an arrest if he or she uses excessive force in the course of that arrest.
[A] civil action for damages for assault and battery is available at common law against one who, for the accomplishment of a legitimate purpose, such as justifiable arrest, uses force which is excessive under the given circumstances.
Under the common law, a law enforcement officer has the right, in making an arrest and securing control of an
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offender, to use only such force as may be reasonably necessary to overcome any resistance and properly discharge his duties. “[H]e may not act maliciously in the wanton abuse of his authority or use unnecessary and excessive force.” Although the officer has discretion, within reasonable limits, to judge the degree of force required under the circumstances, “when there is substantial evidence of unusual force, it is for the jury to decide whether the officer acted as a reasonable and prudent person or whether he acted arbitrarily and maliciously.” Further, an assault and battery need not necessarily be perpetuated with maliciousness, willfulness or wantonness, and actual physical injury need not be shown in order to recover.
Myrick v. Cooley, 91 N.C. App. 209, 215, 371 S.E.2d 492, 496 (1988) (citations
omitted). There are questions of material fact concerning whether Defendant Officers
used excessive force, such as punching or kicking Plaintiffs, or deploying a stun gun,
while facilitating the arrest of Plaintiffs. The trial court erred in granting summary
judgment in favor of all Defendant Officers in their individual capacities for Roddie’s
assault and battery claims, and further erred in granting summary judgment in favor
of Deputy Anderson and Officer Stanly in their individual capacities for Frederick’s
assault and battery claims.
2. False Imprisonment
Defendant Officers did not have a warrant to arrest Plaintiffs and, according
to Defendants’ evidence, they were not intending to arrest Plaintiffs when they
arrived at Plaintiffs’ residence. Defendants’ evidence suggests that Roddie
“aggressively initiated contact with the [individual Defendants.]” However, Roddie’s
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evidence, if believed, suggests that immediately after Roddie indicated that he
wanted to call his attorney in order to clear up the custody issue, Defendant Officers
“surrounded [Roddie], threw him to the ground, handcuffed him, [and] arrested
him[.]” Roddie claims he did not initiate contact with Defendant Officers. Roddie
further claims that he was beaten by Defendant Officers. Frederick, in his verified
complaint, contended that, when he saw Defendant Officers assaulting Roddie, he
“asked the said Defendants if they had a warrant and stated they had no right to be
at said premises without a warrant.” “Thereupon [Frederick] turned to walk toward
the location within his yard where all of said persons were located, but [Frederick]
was thereafter thrown to the ground by the individual Defendants[,]” and then
“assaulted.”
False imprisonment is the illegal restraint of a person against his will. A restraint is illegal if not lawful or consented to. A false arrest is an arrest without legal authority and is one means of committing a false imprisonment. The existence of legal justification for a deprivation of liberty is determined in accordance with the law of arrest, which is set forth in Chapter 15A of the General Statutes.
N.C.G.S. § 15A–401(b)(1) (Cum. Supp. 1994) provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed a criminal offense in the officer’s presence. A warrantless arrest without probable cause is unlawful. Thus, the dispositive issue is whether defendant had probable cause to believe that plaintiffs had committed assaults upon him.
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The existence or nonexistence of probable cause is a mixed question of law and fact. If the facts are admitted or established, it is a question of law for the court. However, if the facts are in dispute, the question of probable cause is one of fact for the jury. In this case, the material facts surrounding the incident are in dispute, and therefore the existence or nonexistence of probable cause is for the jury to determine. Accordingly, defendant was not entitled to summary judgment on this ground.
Marlowe v. Piner, 119 N.C. App. 125, 129, 458 S.E.2d 220, 223 (1995) (citations
omitted). As in Marlowe, in the present case the facts are in dispute concerning
probable cause to arrest Plaintiffs on 28 June 2009. The trial court erred in granting
summary judgment in favor of all Defendant Officers in their individual capacities
for Roddie’s false imprisonment claims, and further erred in granting summary
judgment in favor of Deputy Anderson and Officer Stanly in their individual
capacities for Frederick’s false imprisonment claims.
3. Malicious Prosecution
As this Court explained in Moore v. Evans, 124 N.C. App. 35, 476 S.E.2d 415
(1996):
In order to maintain an action for malicious prosecution, the plaintiff must demonstrate that the defendant “(1) instituted, procured or participated in the criminal proceeding against [the] plaintiff; (2) without probable cause; (3) with malice; and (4) the prior proceeding terminated in favor of [the] plaintiff.” “[M]alice can be inferred from the want of probable cause alone.” As it is undisputed that defendant Evans initiated the criminal prosecution against Mr. Moore and that the prosecution ended with a dismissal of the charges against him, the only
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issue as to Mr. Moore’s claim for malicious prosecution is whether defendant Evans had probable cause to initiate the criminal prosecution against him. Hence, a common element of each of the state claims alleged (false imprisonment and malicious prosecution) is the absence of probable cause.
The test for whether probable cause exists is an objective one—whether the facts and circumstances, known at the time, were such as to induce a reasonable police officer to arrest, imprison, and/or prosecute another. In Pitts, our Supreme Court stated:
The existence or nonexistence of probable cause is a mixed question of law and fact. If the facts are admitted or established it is a question of law for the court. Conversely, when the facts are in dispute the question of probable cause is one of fact for the jury.
Id. at 42–43, 476 S.E.2d at 421–22 (citations omitted). Defendants do not dispute
that the criminal proceedings were subsequently terminated in Plaintiffs’ favor. We
hold there is sufficient evidence to survive summary judgment on the fourth element
of malicious prosecution.
Concerning the first element, Officers Stanly, Castaneda, and Brinkley do not
dispute that they were involved in instituting the criminal proceedings. Deputy
Anderson argues that he did not “institute” the criminal proceedings because neither
he nor the Franklin County Sheriff’s Office brought charges against Plaintiffs.
However, it is not necessary that an individual be directly involved in charging a
person, or filing civil claims against that person, in order to have participated
sufficiently in “institut[ing], procur[ing] or participat[ing] in the criminal proceeding
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against [the] plaintiff[.]” Id. at 42, 476 S.E.2d at 421. “[W]here ‘it is unlikely there
would have been a criminal prosecution of [a] plaintiff’ except for the efforts of a
defendant, this Court has held a genuine issue of fact existed and the jury should
consider the facts comprising the first element of malicious prosecution.” Becker v.
Pierce, 168 N.C. App. 671, 675, 608 S.E.2d 825, 829 (2005) (citation omitted). Because
Deputy Anderson is identified by Plaintiffs as having participated in the subduing
and arrests of both Roddie and Frederick, we hold there is sufficient evidence to
survive summary judgment that Deputy Anderson instituted, procured or
participated in the criminal charges brought against Plaintiffs.
Concerning the third element – probable cause:
Our Supreme Court has defined probable cause with respect to malicious prosecution as:
“the existence of such facts and circumstances, known to [the defendant] at the time, as would induce a reasonable man to commence a prosecution.” Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court.
The test for determining probable cause is “‘whether a man of ordinary prudence and intelligence under the circumstances would have known that the charge had no reasonable foundation.’”
Id. at 677, 608 S.E.2d at 829–30 (citations omitted). When we take the evidence in
the light most favorable to Plaintiffs, as we must, Smith, 181 N.C. App. at 587, 640
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S.E.2d at 438, we hold there is sufficient evidence, as set out above, for a trier of fact
to determine that the charges against Plaintiffs “had no reasonable foundation.”
Becker, 168 N.C. App. at 677, 608 S.E.2d at 830.
Concerning the second element, Defendants argue there was insufficient
evidence of malice to survive summary judgment. “‘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.” Id. at 676, 608 S.E.2d at 829 (citations and quotation
marks omitted). If Plaintiffs’ allegations are taken as true, Defendant Officers’
actions could be found to have been done with “‘reckless and wanton disregard’ for
plaintiffs’ rights.” Id.
We hold there was sufficient evidence, when viewed in the light most favorable
to Plaintiffs, to survive Defendants’ motions for summary judgment on the individual
capacity claims of assault and battery, false imprisonment, and malicious prosecution
against all Defendant Officers in Roddie’s action, and against Officer Stanly and
Deputy Anderson in Frederick’s action. We stress that our holdings should not be
taken as the opinion of this Court concerning the relative strength of Plaintiffs’
evidence as compared to the evidence supporting Defendant Officers. We simply hold
that Plaintiffs have sufficiently forecast evidence creating issues of material fact,
which must be decided by the trier of fact. We remand for further action on Plaintiffs’
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individual capacity claims against Defendant Officers, excepting Frederick’s
individual capacity claims against Officers Castaneda and Brinkley, which were
properly disposed of on summary judgment.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges STROUD and INMAN concur.
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