Opinion
CIVIL 1:22-cv-00028-MR-WCM 1:22-cv-00029-MR-WCM 1:22- cv-00030-MR-WCM 1:22- cv-00031-MR-WCM 1:22- cv-00032-MR-WCM 1:22- cv-00033-MR-WCM 1:22- cv-00034-MR-WCM 1:22- cv-00035-MR-WCM 1:22- cv-00036-MR-WCM 1:22- cv-00037-MR-WCM
08-17-2023
DARRYL K. MCMAHAN, Plaintiff, v. LOWELL S. GRIFFIN, WESTERN SURETY COMPANY, and KENNETH B. CLAMSER, Defendants.
AMENDED MEMORANDUM OF DECISION AND ORDER
Martin Reidinger, Chief United States District Judge
THIS MATTER is before the Court on the Defendants' Motions for Summary Judgment. [Case Nos. 1:22-cv-00028-MR-WCM, Doc. 29; 1:22-cv-00029-MR-WCM, Doc. 24; 1:22-cv-00030-MR-WCM, Doc. 24; 1:22-cv-00031-MR-WCM, Doc. 23; 1:22-cv-00032-MR-WCM, Doc. 23; 1:22-cv-00033-MR-WCM, Doc. 23; 1:22-cv-00034-MR-WCM, Doc. 23; 1:22-cv-00035-MR-WCM, Doc. 23; 1:22-cv-00036-MR-WCM, Doc. 23; 1:22-cv-00037-MR-WCM, Doc. 23].
I. PROCEDURAL BACKGROUND
These civil actions involve federal claims for violations of 42 U.S.C. § 1983 and state law claims of malicious prosecution, abuse of process, and negligence arising from the arrest of the Plaintiff Darryl K. McMahan (“McMahan”) on charges of obtaining property by false pretenses after he failed to deliver gravestone markers and similar items to a number of customers. McMahan owns and operates Custom Monuments, Inc. (“Custom Monuments”), formerly known as McMahan Memorials, Inc., a company involved in the production and installation of granite and bronze monuments and signs.
McMahan filed these ten civil actions in North Carolina state court against Lowell S. Griffin, in his capacity as Sheriff of Henderson County (“Sheriff Griffin”); Western Surety Company, as surety for the Sheriff (“Western Surety”); and Henderson County Sheriff's Deputy Kenneth B. Clamser (“Deputy Clamser”) (collectively, “Defendants”). The Defendants removed each of these actions to this Court, alleging federal question jurisdiction pursuant to 28 U.S.C. § 1331. Thereafter, the Defendants filed their Answers to the respective Complaints.
Upon motion of the Defendants, the Magistrate Judge consolidated these actions for discovery. Upon the completion of discovery, the Defendants moved to consolidate these cases for the purpose of filing dispositive motions, which McMahan opposed. On December 7, 2022, the Magistrate Judge granted in part the motion to consolidate, ordering the parties to file a consolidated memorandum of law in support of any and all motions for summary judgment in the ten cases and a separate brief applying the law to the facts in each of the cases. The consolidated memorandum of law was to be filed in the earliest-filed case, 1:22-cv-00028, and the factspecific briefs were to be filed respectively in the other cases.
On December 21, 2022, the Defendants filed a motion for summary judgment in each of the cases, as well as a consolidated memorandum of law and a fact-specific memorandum in support of each motion. On January 17, 2023, McMahan filed a consolidated memorandum of law in opposition to each motion for summary judgment and a fact-specific memorandum in opposition applying the relevant law to the facts of this case [Doc. 34]. On January 21, 2023, the Defendants filed a reply to McMahan's consolidated memorandum of law in opposition and a reply to McMahan's fact-specific 3 memorandum. Thus, these matters have been fully briefed and are now ripe for disposition.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers, admissions, stipulations, affidavits, and other materials on the record show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)&(c). “As the Supreme Court has observed, ‘this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
“Facts are material when they might affect the outcome of the case, and a genuine issue exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020) (quoting News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)). The Court does not make credibility determinations or weigh the evidence when ruling on a motion for summary judgment. Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). “Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact.” Bouchat, 346 F.3d at 522. If this showing is made, the burden then shifts to the nonmoving party who must convince the Court that a triable issue does exist. Id.
In considering the facts on a motion for summary judgment, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. Smith v. Collins, 964 F.3d 266, 274 (4th Cir. 2020).
III. FACTUAL BACKGROUND
Viewing the forecast of evidence in the light most favorable to McMahan, the facts are as follows.
Beginning in the spring of 2019, deputies at the Henderson County Sheriff's Office began receiving reports from customers of Custom Monuments, complaining that they had paid for but not received a gravestone marker or similar item from McMahan's business. These calls only increased after a local news station broadcast a story about one of McMahan's customers who had paid for, but had not received, a gravestone monument. [Case No. 1:22-cv-29, Doc. 25-4: Clamser Dep. at 22-23].
After receiving numerous complaints about McMahan's business practices, Deputy Clamser. who was the Henderson County Sheriff's Property Crimes Supervisor, began seeking to bring charges against McMahan. In Deputy Clamser's view, “one time is a mistake. Multiple times is a pattern.” [Case No. 1:22-cv-29, Doc. 25-4: Clamser Dep. at 60].
The present civil actions represent ten of these criminal charges, each involving a different customer transaction. While the charges were brought at different times, they were ultimately all dismissed in August and September 2020 pursuant to an agreement arranged by McMahan's defense attorney. The following is a summary of the undisputed facts related to these transactions and the subsequent criminal investigation and prosecution of each.
A. Susan Roberts (Case No. 1:22cv28)
On November 18, 2018, Custom Monuments entered into a contract with Susan Roberts (“Roberts”) for the production of a gravestone monument for Roberts's late husband. [Case No. 1:22cv28, Doc. 34-12: Roberts Contract at 2]. The contract provided an estimated completion time of twenty to twenty-four weeks. [Id.]. The contract noted a “cemetery fee” of $665.24 and a “net fee” of $2,395.00. [Id.]. Next to the cemetery fee amount, there was a handwritten notation that “customer will pay.” [Id]. Under these monetary amounts, there was a handwritten notation of “paid in full.” [Id.]. The contract, like all of the contracts at issue in the present cases, also included a disclaimer that “[t]his contract is subject to delays occasioned by fire, accident, strikes, inclement weather or other causes beyond the control of the company” (hereinafter “the standard disclaimer”). [Id.]. McMahan's signature appeared on the contract. [Id.].
McMahan submitted an order to Excel Granites, Inc. (“Excel Granites”), for the monument, and Excel Granites prepared a proof of the design, which Roberts signed. [Case No. 1:22cv28, Doc. 34-14: Roberts Proof]. On May 29, 2019, McMahan texted Roberts's daughter, Kayla Hall (“Hall”), stating: “Stone is ready. I'm short on help. My Nephew's wife had a major surgical procedure and he is out till next Monday. I have no one else to fill in.” [Case No. 1:22cv28, Doc. 34-15: Hall Texts at 13]. Hall responded to ask when the monument would be set, but McMahan did not respond. [Id.]. Hall texted on several subsequent days to ask when the monument could be set and to ask for updates, noting that she had called Custom Monuments' office and received no answer. [Id. at 14]. On June 11, 2019, McMahan replied, stating: “I had an accident and was in the hospital for a while today.” [Id.]. On June 17, 2019, McMahan texted Hall a photo of the completed monument but informed her that he was still “working on” procuring the foundation cover 7 for the monument. [Id. at 17-18]. On July 3, 2019, Hall told McMahan that she wanted the monument set “ASAP” and was not “getting any answers” from McMahan or Custom Monuments. [Id. at 19]. McMahan replied that he was still hospitalized and that all of his employees were on vacation. [Id.]. On July 22, 2019, Hall texted McMahan saying: “I been [sic] trying to reach out to you and your company with no answer and phones disconnected. Weeks ago I was told everything was ready it just needed to be picked up. Dads stone needs to be set.” [Id. at 21]. McMahan did not reply to this message and the text message records do not show further correspondence between the two. [Id.]
On July 25, 2019, Hall met with Henderson County Sheriff's Deputy Brittany Owen (“Deputy Owen”) and reported that Roberts had not received the monument she had ordered from Custom Monuments. [Case No. 1:22cv28, Doc. 31-3: Owen Dep. at 15]. Hall gave Deputy Owen a copy of the Custom Monuments contract but did not provide her with any photographs of the completed monument. [Id. at 15-16]. Deputy Owen did not ask Hall if there was a reason for the delay in the monument delivery, nor did the two discuss whether the cemetery fee had been paid. [Case No. 1:22cv28, Doc. 34-4: Owen Dep. at 19-20]. Deputy Owen prepared an intake report based on this conversation but did not perform any follow-up investigation. [Id. at 21].
On July 30, 2019, Deputy Roger Aly (“Deputy Aly”) contacted Roberts to investigate Deputy Owen's report. [Case No. 1:22cv28, Doc. 31-4: Aly Dep. at 10-11]. Roberts told Deputy Aly that her last contact with McMahan's company was with the office manager, who she felt had just made excuses, and that she had since made ten to fifteen attempts to contact Custom Monuments regarding when the monument would be ready but had not received an answer. [Id. at 11]. Roberts also told Deputy Aly that she had been informed that “the stone was ready but the base was delayed” and sent Deputy Aly a photo she received of the stone. [Case No. 1:22cv28, Doc. 345: Aly Dep. at 11].
Deputy Aly provided this information to Deputy Clamser. [Id. at 12-13]. Deputy Clamser did not attempt to contact McMahan regarding these allegations. [Case No. 1:22cv28, Doc. 34-6: Clamser Dep. at 66]. Deputy Clamser also did not attempt to contact the cemetery at which the monument was to be placed. [Case No. 1:22cv28, Doc. 31-5: Clamser Dep. at 71].
On July 31, 2019, Deputy Clamser sought an arrest warrant from Magistrate Susan Oates (“Magistrate Oates”). [Id. at 66]. Deputy Clamser informed Magistrate Oates that Roberts paid McMahan $2,395 for a gravestone memorial that was never delivered. [Case No. 1:22cv28, Doc. 31-7: Oates Dep. at 13]. Deputy Clamser also informed her that Roberts had tried to get in touch with McMahan and had not gotten a response. [Id.]. Based on the information provided, Magistrate Oates issued an arrest warrant for McMahan, charging him with obtaining property by false pretenses in violation of North Carolina General Statute § 14-100. [Case No. 1:22cv28, Doc. 34-17: Arrest Warrant].
On August 8, 2019, McMahan was arrested on the charge at issue in this case as well as charges in three similar cases. [Case No. 1:22cv28, Doc. 31-6: McMahan Dep. at 306-07]. After his arrest, McMahan contacted the cemetery and requested written documentation that the cemetery fee had not been paid. [Id.]. On August 13, 2019, McMahan received a letter confirming that the cemetery fees at Blue Ridge Gardens of Memory had not been paid and stating that the monument could not be installed until such fees were paid in full. [Case No. 1:22cv28, Doc. 34-18: Blue Ridge Gardens Letter].
In August 2020, one of Roberts's family members made an arrangement with Blue Ridge Gardens to pay the cemetery fee, and the monument was installed. [Case No. 1:22cv28, Doc. 34-11: McMahan Decl. at ¶ 15]. On August 14, 2020, the charge at issue in this case was dismissed pursuant to an agreement arranged by McMahan's defense attorney. [Case No. 1:22cv28, Doc. 34-19: Dismissal Record; Case No. 1:22cv28, Doc. 363: McMahan Dep. at 305-06]. As part of the agreement, McMahan submitted a form signed by Roberts confirming the monument had been delivered and indicating that she agreed to have the charge dismissed. [Case No. 1:22cv28, Doc. 36-3: McMahan Dep. at 305-06].
B. Irene McMinn (Case No. 1:22cv29)
On October 10, 2018, Custom Monuments entered into a contract with Irene McMinn (“McMinn”) for the production of a bronze grave marker. [Case No. 1:22cv29, Doc. 27-11: McMinn contract at 2]. The contract provided an estimated completion time of sixteen to twenty weeks. [Id.]. The contract stated a total cost of $1,495.00 and included a “paid” notation. [Id.]. The contract included the standard disclaimer language and was signed by McMahan. [Id.]. As the marker was for a U.S. military marker, McMahan and McMinn also completed a Department of Veteran's Affairs form (the “VA form”), requesting authorization for a government marker. [Case No. 1:22cv29, Doc. 27-12: VA Form].
On November 1, 2018, McMahan placed an order with Granit Bronz for the production of the marker. [Case No. 1:22cv29, Doc. 27-13: Granit Bronz Order Form]. On December 17, 2018, McMinn signed a proof of the marker. [Case No. 1:22cv29, Doc. 27-14: signed proof].
McMahan contacted Shepherd's Memorial Park (“Shepherd's Park”), the cemetery where the marker was to be placed. [Case No. 1:22cv29, Doc. 27-3: McMahan Dep. at 103-04]. McMahan learned from Shepherd's Park that the cemetery was no longer allowing “duplicate” markers, or markers meant to mark the gravesites of two people, like the marker ordered by McMinn. [Id. at 104]. McMahan informed McMinn about this policy change but told her he would “work on it.” [Id. at 104-05]. McMahan contacted the owner of Shepherd's Park, but she refused to speak with him. [Id. at 105]. McMahan also verbally complained about the policy to the North Carolina Cemetery Commission. [Id.].
McMahan had also not yet received the bronze marker from Granit Bronz, so he contacted the company and learned that the marker had been mistakenly sent to a prior business address. [Id. at 107-08]. However, when McMahan contacted the new tenants at that address, he was informed that they had not received the marker. [Id. at 108].
On March 26, 2019, McMinn contacted Henderson County Sheriff's Deputy Terry Patterson (“Deputy Patterson”) and informed him that she paid McMahan for a grave marker in December but had not received the marker and that McMahan was not returning her calls about her order. [Case No. 1:22cv29, Doc. 27-4: Patterson Report at 5; Case No. 1:22cv29, Doc. 27-4: Patterson Dep. at 27]. On April 17, 2019, Deputy Clamser contacted McMinn regarding Deputy Patterson's report but did not learn any more from her than what she had originally reported to Deputy Patterson. [Case No. 1:22cv29, Doc. 27-5: Clamser Dep. at 29-31]. Deputy Clamser, who noted in his report that this was the third case he had investigated regarding Custom Monuments, contacted McMahan who informed him that “this was nothing more than a civil matter” and cited Shepherd's Park as the “roadblock” to fulfilling the contract. [Id. at 31-32; Case No. 1:22cv29, Doc. 25-4: Clamser Report at 14]. Deputy Clamser also contacted Shepherd's Park and spoke with an employee who claimed the cemetery had nothing to do with the delay. [Case No. 1:22cv29, Doc. 25-4: Clamser Dep. at 34]. Several weeks later, Deputy Clamser called McMahan again and inquired about the status of the marker. [Case No. 1:22cv29, Doc. 25-5: McMahan Dep. at 71]. McMahan informed Deputy Clamser that he was still working on McMinn's order and that he had run into “roadblocks.” [Id.]. Deputy Clamser then noted in his report that “[a]t this point case will be closed due to no crime has been committed just bad business practices.” [Case No. 1:22cv29, Doc. 275: Clamser Report at 13]. On June 1, 2019, McMinn called Deputy Clamser and informed him that she still had not received the marker. [Id.]. At this point, Deputy Clamser contacted an assistant district attorney who declined to prosecute the matter. [Case No. 1:22cv29, Doc. 25-4: Clamser Dep. at 22].
On June 7, 2019, McMahan refunded McMinn because of the delay in delivery and because of the Shepherd's Park policy. [Case No. 1:22cv29, Doc. 27-2: Plaintiff's Responses to Interrogatories at 3]. On July 15, 2019, McMinn contacted Deputy Clamser and informed him that she had received a refund. [Case No. 1:22cv29, Doc. 27-5: Clamser Report at 14].
On August 1, 2019, Deputy Clamser testified before Magistrate Monica Jernigan (“Magistrate Jernigan”). [Case No. 1:22cv29, Doc. 27-18: Arrest Warrant]. He informed her that McMinn paid McMahan for a gravesite marker and that she had not received the marker. [Case No. 1:22cv29, Doc. 25-6: Jernigan Dep. at 11]. Deputy Clamser did not inform Magistrate Jernigan that there had been an issue with the Shepherd's Park policy because he felt that this was irrelevant to the case. [Case No. 1:22cv229, Doc. 27-5: Clamser Dep. at 53, 54, 55]. He further could not recall if he advised the magistrate that McMinn had already received a refund. [Id. at 57, 58]. Based on the information provided, Magistrate Jernigan issued an arrest warrant for McMahan, charging him with obtaining property by false pretenses in violation of North Carolina General Statute § 14-100. [Case No. 1:22cv29, Doc. 27-18: Arrest Warrant]. In her subsequent deposition, however, Magistrate Jernigan testified that she would have made a different decision if she had been told about a problem with the installation at Shepherd's Park and that McMinn's money had been refunded. [Case No. 1:22cv29, Doc. 27-6: Jernigan Dep. at 17-18].
On August 8, 2019, McMahan was arrested on the charge at issue in this case as well as charges in three similar cases. [Case No. 1:22cv29, Doc. 25-5: McMahan Dep. at 307]. On August 14, 2020, the charge at issue in this case was dismissed pursuant to an agreement arranged by McMahan's defense attorney. [Case No. 1:22cv29, Doc. 27-19: Dismissal Record; Doc. 25-5: McMahan Dep. at 306]. As part of the agreement, McMahan submitted a form signed by McMinn indicating that she agreed to have the charge dismissed. [Case No. 1:22cv29, Doc. 25-5: McMahan Dep. at 306].
C. Wanda Payne (Case No. 1:22cv30)
On April 11, 2019, Custom Monuments entered into a contract with Wanda Payne (“Payne”) to engrave a stone monument. [Case No. 1:22cv30, Doc. 27-12: Payne Contract at 2]. Specifically, Payne was to provide McMahan with a field rock from her property and he was to have it engraved. [Case No. 1:22cv30, Doc. 27-3: McMahan Dep. at 112]. The contract provided an estimated completion time of eight to ten weeks. [Case No. 16 1:22cv30, Doc. 27-12: Payne Contract at 2]. The contract stated a total cost of $495.00 and included a “paid in full” notation. [Id.]. The contract included the standard disclaimer and was signed by McMahan. [Id.].
In late May 2019, McMahan delivered the field stone to Faith Customized Monuments in Georgia so that it could be engraved. [Case No. 1:22cv30, Doc. 27-2: Plaintiff's Responses to Interrogatories at 2]. However, Faith Customized Monuments informed McMahan that they would be unable to engrave the stone because they were worried about damaging it. [Id.]. In mid-July 2019, McMahan retrieved the stone from Faith Customized Monuments. [Id.]. McMahan informed Payne that Faith Customized Monuments was unable to complete the engraving but assured her he would “get the problem fixed.” [Id.].
On July 27, 2019, Payne contacted the Henderson County Sherriff's Department and spoke with Deputy Jose Jimenez (“Deputy Jimenez”). [Case No. 1:22cv30, Doc. 27-5: Jimenez Dep. at 9]. Payne informed Deputy Jimenez that she had provided McMahan with a field stone and paid him $495 to have the stone engraved but had not received the finished stone within the time frame anticipated in her contract. [Case No. 1:22cv30, Doc. 27-5: Payne Investigation Rep. at 6]. Payne also informed Deputy Jimenez that she had made multiple attempts to contact McMahan for a status update but had been unable to reach him. [Id.].
Deputy Clamser instructed Deputy Travis Pierce (“Deputy Pierce”) to follow up with Payne. [Case No. 1:22cv30, Doc. 27-4: Clamser Dep. at 91]. Deputy Clamser asked Deputy Pierce to ask Payne five specific questions. [Id.]. On August 5, 2019, Deputy Pierce called Payne and asked her the questions as instructed. [Doc. 27-6: Pierce Dep. at 19]. Specifically, Deputy Pierce asked Payne: “(1) How many calls did you make to Custom Monuments?; (2) How many return calls did you receive from Darryl McMahan?; (3) What was his excuse?; (4) What was your method of payment?; and (5) did he offer/ or make things right?” [Case No. 1:22cv30, Doc. 27-6: Payne Investigation Rep. at 11-12]. In response, Payne said that she had made a dozen calls to Custom Monuments and received no return calls from McMahan. [Id.]. She noted that McMahan had informed her that he was “behind due to the wet weather”; however, it is unclear when she received that explanation. [Id.]. Payne also told Deputy Pierce that she paid McMahan with a personal check and that McMahan had not offered to “make things right.” [Id.]. In the report he made of that call, Deputy Pierce wrote that Payne would mail him a copy of the contract with Custom Monuments and a copy of the check; however, Deputy Pierce testified in his deposition that he was unsure if the Sheriff's Department ever received those documents. [Id.].
Deputy Clamser reviewed the reports of Deputies Jimenez and Pierce and, on August 6, 2019, testified in front of Magistrate Brenda Ray (“Magistrate Ray”) regarding Payne's allegations. [Case No. 1:22cv30, Doc. 27-4: Clamser Dep. at 90]. Deputy Clamser testified about Payne's initial report that she had not received an engraved stone within the anticipated time frame and about Payne's answers to the five questions posed by Deputy Pierce. [Case No. 1:22cv30, Doc. 25-5: Clamser Dep. at 123-24, 173]. Based on the information provided, Magistrate Ray issued an arrest warrant for McMahan, charging him with obtaining property by false pretenses in violation of North Carolina General Statute § 14-100. [Case No. 1:22cv30, Doc. 27-14: Arrest Warrant]. The warrant reads: “The false pretense consisted of the following: Purchased a grave stone/monument that was never delivered, nor money refunded or telephone calls returned to victim.” [Id.]
On August 8, 2019, McMahan was arrested on the charge at issue in this case as well as charges in three similar cases. [Case No. 1:22cv30, Doc. 25-6: McMahan Dep. at 307]. At some point after August 6, 2019, McMahan brought the stone to another engraving company and was able to have the stone engraved and installed. [Case No. 1:22cv30, Doc. 27-2: Plaintiff's Responses to Interrogatories at 3]. On September 6, 2019, Payne called the Sheriff's Department and stated that she had received the engraved stone. [Case No. 1:22cv30, Doc. 27-4: Clamser Dep. at 96]. On December 8, 2020, the charge at issue in this case was dismissed pursuant to an agreement arranged by McMahan's defense attorney. [Case No. 1:22cv30, Doc. 27-16: Dismissal Record; Case No. 1:22cv30, Doc. 25-6: McMahan Dep. at 141]. As part of the agreement, McMahan submitted a form signed by Payne indicating that she agreed to have the charge dismissed. [Case No. 1:22cv30, Doc. 25-6: McMahan Dep. at 306].
D. Sherri Freeman (Case No. 1:22cv31)
On November 28, 2017, Custom Monuments entered into a contract with Sherri Freeman (“Freeman”) to produce two headstones, one for Freeman and one for her late husband. [Case No. 1:22cv31, Doc. 26-12: Freeman Contract at 2-3]. Each headstone was to have a dachshund engraving. [Id.]. The contract provided an estimated completion time of twelve to sixteen weeks. [Id.]. The contract stated a cost of $346.93 for each headstone and included a “paid” notation for each. [Id.]. The contract also included the standard disclaimer. [Id.].
Also on November 28, 2017, Custom Monuments prepared an order form for the headstones, and on December 1, 2017, Custom Monuments faxed the order form to Faith Customized Monuments. [Case No. 1:22cv31, Doc. 26-13: Faith Monuments Order Form; Case No. 1:22cv31, Doc. 26-14: Order Form Fax Confirmation]. In February 2018, Faith Customized Monuments sent Custom Monuments proofs of the headstones, which Custom Monuments then provided to Freeman. [Case No. 1:22cv31, Doc. 26-11: McMahan Decl. at ¶ 6; Case No. 1:22cv31, Doc. 26-15: Headstone Proofs]. Freeman provided Custom Monuments with an image of a dachshund head that she preferred to the one on the proof, and Custom Monuments sent that image to Faith Customized Monuments in February 2018. [Case No. 1:22cv31, Doc. 26-11: McMahan Decl. at ¶¶ 8-9; Doc. 2616: Dachshund Head Image]. Freeman also sent Custom Monuments a full-body dachshund image, and Custom Monuments faxed that image to Faith Customized Monuments in May 2018. [Case No. 1:22cv31, Doc. 26-11: McMahan Decl. at ¶ 10-12; Doc. 26-17: Dachshund Full-Body Image; Case No. 1:22cv31, Doc. 26-18: May Fax Confirmation]. However, Custom Monuments learned from Faith Customized Monuments that the size of the gravestone would not accommodate the full-body dachshund image. [Case No. 1:22cv31, Doc. 26-2: Plaintiff's Responses to Interrogatories at 2]. Freeman approved the final gravestone proof on May 10, 2018, and sent the approved proofs to Faith Customized Monuments. [Id.].
In either October 2018 or spring 2019, McMahan retrieved the completed gravestones from Faith Customized Monuments. [Case No. 1:22cv31, Doc. 26-2: Plaintiff's Responses to Interrogatories at 2; Case No. 1:22cv31, Doc. 26-3: McMahan Dep. at 123-24]. McMahan was not “working [in] the office much in 2019” and testified that it was his employees' responsibility to arrange with Freeman to have the gravestones set. [Case No. 1:22cv31, Doc. 26-3: McMahan Dep. at 123-24]. His employees informed him at the time that they were trying to contact Freeman in the Spring of 2019 but that they were unable to reach her and had to leave messages. [Id. at 127].
On July 31, 2019, Freeman contacted the Henderson County Sherriff's Department and spoke with Deputy Owen. [Case No. 1:22cv31, Doc. 24-3: Owen Dep. at 24]. Freeman informed Deputy Owen that she had paid cash for two gravestones and had received an email finalizing the stones in May 2018. [Id.]. Freeman also informed Deputy Owen that she met with McMahan's brother in June 2019 and that the brother “showed her the contract and it said that the stones were ready to be picked up and installed.” [Id.]. Freeman stated that she had not “heard anything since” and had not received the monuments. [Id.].
On August 5, 2019, Deputy Pierce called Freeman to investigate Deputy Owen's initial report. [Case No. 1:22cv31, Doc. 24-4: Pierce Dep. at 27]. Freeman told Deputy Pierce that she had made one hundred calls to Custom Monuments during the preceding year and had only received one call back from a receptionist. [Civil Case No. 1:22cv31, Doc. 26-5: Pierce 23 Investigation Rep. at 9-10]. She also told Deputy Pierce that Custom Monuments gave her the excuse that “[t]he weather was too wet to set stones.” [Id. at 10]. Deputy Clamser reviewed Deputy Pierce's report and testified before Magistrate Ray regarding Freeman's allegations on August 6, 2019. [Civil Case No. 1:22cv31, Doc. 26-7: Clamser Dep. at 84]. Deputy Clamser testified about Freeman's initial report that she had not received gravestones for which she had paid and testified about the information Deputy Pierce learned during his investigation. [Civil Case No. 1:22cv31, Doc. 24-5: Clamser Dep. at 123-24, 173].
Based on the information provided, Magistrate Ray issued an arrest warrant for McMahan, charging him with obtaining property by false pretenses in violation of North Carolina General Statute § 14-100. [Civil Case No. 1:22cv31, Doc. 26-19: Arrest Warrant]. The warrant reads: “The false pretense consisted of the following: Victim purchased a grave stone/monument and it was never delivered nor money refunded. Defendant has not returned telephone calls to victim.” [Id.].
On August 8, 2019, McMahan was arrested on the charge at issue in this case as well as charges in three similar cases. [Civil Case No. 1:22cv31, Doc. 24-6: McMahan Dep. at 307]. A year later, in August 2020, McMahan spoke with Freeman and installed the two monuments. [Civil Case No. 24 1:22cv31, Doc. 26-2: Plaintiff's Responses to Interrogatories at 2]. On August 14, 2020, the charge at issue in this case was dismissed pursuant to an agreement arranged by McMahan's defense attorney. [Civil Case No. 1:22cv31, Doc. 26-21: Dismissal Record; Civil Case No. 1:22cv31, Doc. 246 McMahan Dep. at 141]. As part of the agreement, McMahan submitted a form signed by Freeman indicating that she agreed to have the charge dismissed. [Civil Case No. 1:22cv31, Doc. 26-3: McMahan Dep. at 306].
E. Sheila Ensley (Case No. 1:22cv32)
On July 28, 2018, Custom Monuments entered into a contract with Sheila Ensley (“Ensley”) to produce a gravestone monument. [Case No. 1:22cv32, Doc. 26-11: Ensley Contract at 2]. The contract provided an estimated completion time of sixteen to twenty weeks. [Id.]. The contract noted a “cemetery fee” of $100.00, a “net sale” of $1,870, sales tax of $126.23, a “total” of $1996.23, and a “discount” of $126.23. [Id.]. Under those amounts, “1,870” was written again, presumably the total after the discount was applied. [Id.]. Next to the cemetery fee amount, there was a handwritten notation reading “customer will pay.” [Id.]. Under these monetary amounts, there was a handwritten notation that read “paid.” [Id.]. The contract also included the standard disclaimer and was signed by McMahan. [Id.].