Opinion
No. COA15–455.
01-19-2016
Michael Scott UNDERWOOD, Plaintiff, v. Esperanza Maria ORDONEZ, M.D., Defendant.
John M. Kirby, for Plaintiff–Appellant. Congdon Law, by Jeannette Griffith Congdon, for Defendant–Appellee.
John M. Kirby, for Plaintiff–Appellant.
Congdon Law, by Jeannette Griffith Congdon, for Defendant–Appellee.
Opinion
Appeal by Plaintiff from order entered 10 February 2015 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 7 October 2015. Wake County, No. 14 CVS 6563.
HUNTER, JR., ROBERT N., Judge.
Michael Underwood (“Plaintiff”) appeals from a 10 February 2015 order granting Esperanza Ordonez (“Defendant”) summary judgment denying Plaintiff's claims for relief for alleged malicious prosecution and abuse of process. We reverse the trial court.
I. Standard of Review
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citing Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). “When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.” In re Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576 (quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 382, 385 (2007)). “If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial.” In re Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576 (citations and quotation marks omitted). “Nevertheless, ‘if there is any question as to the weight of evidence summary judgment should be denied.’ “ Id. (citing Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d 320, 325 (1999)) (citation omitted).
II. Procedural History
Plaintiff filed his complaint on 20 May 2014, alleging causes of action for malicious prosecution, abuse of process, and punitive damages. In response, Defendant filed a Rule 12(b)(6) motion to dismiss the complaint.
The parties deposed Plaintiff and Defendant on 5 August 2014. Thereafter, the court denied Defendant's motion to dismiss on 29 August 2014. Defendant filed her answer 12 September 2014 and moved for summary judgment pursuant to Rule 56. Defendant's motion for summary judgment stated the following in relevant part:
There is no genuine issue of material fact as to Plaintiff's allegations of Malicious Prosecution (count 1) as there is no evidence to support several critical elements common to this claim, specifically that Defendant initiated the earlier proceeding, that Defendant acted with malice, and that the Defendant acted without probable cause.
The parties deposed law enforcement officers involved in the case on 21 November 2014 and 28 January 2015. Plaintiff filed two affidavits on 8 December 2014 and 2 February 2015. He attached a dismissal form to the February affidavit, in which the State dismissed a criminal breaking and entering of a motor vehicle charge against him on 6 March 2014. The State's dismissal stated “State not likely to prevail at trial....”
The motion for summary judgment was set for hearing on 5 February 2015. At the hearing, the trial court stated, “I have got the critical case. I really don't need for you all to break your necks to tell me about it because I have already taken the time....” The court did not hear arguments from counsel and took the motion under advisement. On 10 February 2015, the court issued a written order granting Defendant's motion for summary judgment, stating the following:
After reviewing the entire record and following the law relating to malicious prosecution as pronounced by the North Carolina Supreme Court in N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, Inc., 366 N.C. 505 (2013) the Court finds that there are no genuine issues of material fact and that the defendant is entitled to summary judgment on the plaintiff's claims of malicious prosecution and abuse of process as a matter of law.
Plaintiff timely filed his notice of appeal, and contests the order for summary judgment as it relates to his malicious prosecution claim.
III. Factual History
The parties settled the record on 22 April 2015. We review the following facts in the light most favorable to Plaintiff.
Plaintiff worked for Defendant from July to December 2013, performing yard work and other maintenance tasks around Defendant's home. In late 2013, Plaintiff informed Defendant he was beginning a full time job and would have less time to work as Defendant's employee. On 23 December 2013, unknown persons broke into Defendant's home and she accused Plaintiff of the break in. Law enforcement officers determined Plaintiff was not a part of the break in. On 26 December 2013, Plaintiff began his new job as a sous chef.
In her deposition, Defendant testified to the following. On 1 January 2014, Defendant was sleeping in her home. She woke up around 4:00 am and looked out a window towards her truck parked in the driveway. She saw “a figure” near the truck. “It was dark [and she] couldn't see the face, but [she] could tell it was a very tall, thin person.” She could see the “outlines” of the person's clothing, but not the color of the clothes or anything specific. She saw a dog sitting on the passenger seat of the truck that had “[Plaintiff's] dog's face.” The person walked towards the garage and Defendant called the police. The person walked back to the truck, sat in the driver's seat, and Defendant could no longer “clearly see” the person's face. The person started the truck, moved up the driveway “a little bit,” and then back to where it was originally parked. The person exited the truck and left with the dog.
Deputy Joshua Taylor, of the Wake County Sheriff's Office, responded to the 911 call and traveled to Defendant's house. The truck was parked in the driveway, illuminated by lights attached to the house, and the driver side door was unlocked, but the truck did not have any “pry marks” on the door or the ignition, or any other damage indicative of forcible entry.
Deputy Taylor previously traveled to Defendant's house on 23 December 2013, when Defendant accused Plaintiff of breaking and entering into her house.
When Defendant spoke to Deputy Taylor, she “positively ... identified the subject [who broke into the truck] as being Mr. Michael Underwood [Plaintiff], the man which [sic] worked for her.” Defendant told Deputy Taylor, “[Plaintiff] was the only person that would have access to the truck, other than her, due to him working for her around her house. [Defendant] stated that she believed that [Plaintiff] has made a copy of the key to the truck while working for her.” In his deposition, Deputy Taylor testified “[Defendant] stated that [Plaintiff] did get into the truck and attempt to start the truck. He was unsuccessful in doing so, and, allegedly, [Plaintiff] then fled on foot leaving the scene.” Further, Defendant's vague descriptions of a “tall, thin person” were “inconsistent” with the positive identification she gave Deputy Taylor.
In his affidavit, Plaintiff testified he was sleeping at his residence during the alleged truck break in. The following day, 2 January 2014, Plaintiff was arrested at his workplace and fired from his job. Plaintiff was incarcerated in jail for four days before his release.
IV. Analysis
Under North Carolina law, a plaintiff must prove four elements to prevail on a malicious prosecution claim: (1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff. Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994) (citation omitted). The case cited by the trial court, N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, Inc., 366 N.C. 505 (2013), solely concerns the first element of malicious prosecution—whether Defendant initiated the earlier proceeding against Plaintiff.
Reviewing this Court's opinion in N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, Inc., 220 N.C.App. 212, 725 S.E.2d 638 (2012), the North Carolina Supreme Court vacated our decision because our but-for “interpretation of the element of initiation ... does not account adequately for the roles played by police and prosecutorial discretion.” Cully's Motocross Park, 366 N.C. at 513, 742 S.E.2d at 787. To remedy this, our Supreme Court adopted “a more comprehensive analysis” found in the Restatement (Second) of Torts, Section 653. Id. Section 653 provides the following:
A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if
(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and
(b) the proceedings have terminated in favor of the accused.
Restatement (Second) of Torts § 653 (1977).
Elaborating upon this new approach, our Supreme Court quoted the following portion of Section 653, Comment (g):
Influencing a public prosecutor. A private person who gives to a public official information of another's supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving the information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not. When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this Section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings.
Cully's Motocross Park, 366 N.C. at 513, 742 S.E.2d at 787 (quoting Restatement (Second) of Torts § 653 (cmt.g) (1977)).
Our Supreme Court stated “[t]his formulation balances and protects important public interests. It allows citizens to make reports in good faith to police and prosecutors without fear of retaliation if the information proves to be incomplete or inaccurate .” Id. at 513–14, 742 S.E.2d at 787. Attempting to establish a limiting principle, our Supreme Court stated:
If the information is false, this formulation only protects a reporting party who believes it to be true, thus preserving the element of malice both to deter those who would subvert to their own ends the power held by police and prosecutors and to protect citizens from “one [who] resorts to the process of the law without probable cause, willfully and maliciously, for the purpose of injuring his neighbor.” Chatham Estates v. Am. Nat'l Bank, 171 N.C. 648, 651, 171 N.C. 579, 582, 88 S.E. 783, 785 (1916). This sensible approach encourages independent investigation by those in law enforcement who receive the information. Unlike the “but for” test employed by the trial court and the Court of Appeals, the Restatement recognizes that police and prosecutors have discretionary authority that can insulate from liability those who provide erroneous or mistaken information. Accordingly, we recognize and apply here the principles set out in Comment (g). See Stanback v. Stanback, 297 N.C. 181, 204, 254 S.E.2d 611, 626 (1979) (citing the Restatement of Torts for the proposition that to establish that the former proceeding terminated favorably, a plaintiff in a malicious prosecution action need assert only that the prior case was dismissed), disapproved of for other reasons by Dickens v. Puryear, 302 N.C. 437, 447–48, 276 S.E.2d 325, 331–33 (1981).
Id. at 514, 742 S.E.2d at 787–88.
Comment (g) provides the following in whole part, which our Supreme Court did not quote in Cully's Motocross Park:
If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.
Illustrations:
2. A goes to B, a district attorney, and informs him that C has committed a battery upon A. A believes his statement to be true. The district attorney asks him whether he wishes C to be prosecuted. A says, “I leave that entirely to you.” The district attorney files an information against C. A has not procured the institution of the proceedings.
3. The same facts as in Illustration 2, except that A knows that the battery was not committed by C, but by D. A has procured the institution of the proceedings.
4. A goes to B, a district attorney and informs him that C has committed a battery upon A. A is a political boss to whom B owes his election. A demands that B prosecute C. The battery is one that has created no public disturbance and is therefore an offense for which a public prosecutor would not ordinarily institute proceedings. In compliance with A's demand, B files an information against C. A has procured the institution of the proceedings.
5. A goes to B, a district attorney, and says to him, “C has struck me with a club. I want you to prosecute him.” Upon the strength of A's story, B secures an indictment against C from the grand jury. A has procured the institution of the proceedings.
Restatement (Second) of Torts § 653 (cmt.g) (1977).
Under Cully's Motocross Park, Defendant is absolved of civil liability if she subjectively believes her information is true and the public official uses “his uncontrolled discretion” to initiate “criminal proceedings based upon that information.” Cully's Motocross Park, 366 N.C. at 513, 742 S.E.2d at 787 (quoting Restatement (Second) of Torts § 653 (cmt.g) (1977)). This absolute protection endures even if Defendant's subjective belief is one “that a reasonable man [or woman] would not entertain.” Id. Despite our Supreme Court's best intentions, this formulation does not “only protect[ ] a reporting party” who maintains such a subjective belief. Cully's Motocross Park, 366 N.C. at 514, 742 S.E.2d at 787 (emphasis added). Rather, this formulation protects all parties who claim to believe their information is true, regardless of how unreasonable the belief may be.
Defendant's sworn deposition testimony materially differs from the information she gave to law enforcement officers. When Deputy Taylor talked to Defendant, he asked her, “How can you be sure that was him?” Defendant responded, “I saw his face. I saw his face. It was right there underneath the light.... That was him. That was [Plaintiff].” However, in her deposition, she vaguely described a “tall, thin person,” and testified she could not see their face. She “was pretty sure it was [Plaintiff]” when she talked to Deputy Taylor. Deputy Taylor testified Defendant's vague deposition testimony was “inconsistent” with her accusations on 1 January 2014. These discrepancies suggest Defendant's report to Deputy Taylor was conjecture and not truthful information she believed. This conflict in evidence, viewed in the light most favorable to Plaintiff, requires jury resolution of a genuine issue of material fact.
V. Conclusion
For the foregoing we reverse the trial court. REVERSED.
Judges GEER and DILLON concur.
Report per Rule 30(e).