Summary
affirming entry of summary judgment on malicious prosecution where defendant's "affidavit averred that the prosecution of the plaintiff was instigated in good faith . . . and the plaintiff failed to present counter-affidavits or other evidence creating factual issues"
Summary of this case from Strickland v. HedrickOpinion
No. 110
Filed 8 January 1980
Malicious Prosecution 13.3 — no genuine issue as to malice — summary judgment In an action for malicious prosecution based upon allegations that defendant planted illegal drugs in plaintiff's truck and thereafter caused the prosecution of plaintiff for unlawful possession of the drugs, summary judgment was properly entered for defendant where malice on the part of defendant was negated by defendant's affidavit that he overheard portions of a conversation in a restaurant among three young people in which they mentioned that plaintiff, a school teacher, was a distributor of drugs and would deliver drugs, and that he acted in good faith and out of a civic duty in telling a police officer that drugs would be found in plaintiff's truck, and where no specific factual controversies as to the maliciousness of defendant's actions were presented by the testimony of plaintiff's witness, the police officer, that defendant first questioned him as to plaintiff's involvement in the drug trade and that defendant refused to tell him how defendant knew that drugs would be in plaintiff's truck but stated only that the drugs would be there if defendant said they were there.
ON plaintiff's petition for discretionary review of an opinion of the Court of Appeals, reported at 41 N.C. App. 543, 255 S.E.2d 255 (1979), affirming summary judgment for the defendant Williams entered by Collier, Judge on 16 June 1978 in the Superior Court, DAVIDSON County.
Wilson, Biesecker, Tripp and Wall, by Joe E. Biesecker, for plaintiff appellant.
Rosbon D.B. Whedbee for defendant appellee Williams.
Ted Royster for defendant appellee Myers.
Justice HUSKINS dissenting.
Justices EXUM and COPELAND join in the dissenting opinion.
Justice EXUM dissenting.
Justice COPELAND joins in the dissenting opinion.
This is an action for malicious prosecution brought by plaintiff, a school teacher in Davidson County, against the defendant Myers, a Lexington police officer, and the defendant Williams, a pharmacist in Lexington. On March 3, 1975, based on information supplied by defendant Williams, plaintiff was arrested by City of Lexington police officers, one of whom was the defendant Myers. Plaintiff was charged with an offense related to the illegal possession of narcotics. From the record before us we are unable to determine the exact nature of the criminal charges, however illegal drugs were discovered by the officers in a motor vehicle belonging to the plaintiff. In the subsequent criminal proceeding against the plaintiff, the evidence of the controlled substance was suppressed and the charges were thereafter dismissed. Following the dismissal, plaintiff instituted this action alleging the defendants caused the illegal drugs to be placed in plaintiff's vehicle, and thereafter caused the unlawful, illegal and malicious prosecution of the plaintiff.
On defendant Williams' motion, and after considering the affidavit of defendant Williams and testimony from defendant Myers offered by plaintiff, Judge Collier granted summary judgment in favor of the defendant Williams, and the granting of this motion was affirmed by the Court of Appeals ( 41 N.C. App. 543, 255 S.E.2d 255 (1979)). Plaintiff's petition for discretionary review of the opinion of the Court of Appeals was allowed September 10, 1979.
An action in tort for malicious prosecution is based upon a defendant's malice in causing process to issue. In Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955), this Court set out the essential elements needed to establish a cause of action for malicious prosecution as follows: (1) malice in the defendant's prosecuting the action, (2) want of probable cause for bringing the action, and (3) termination of the criminal proceedings instigated by the defendant in favor of the plaintiff. See also, Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97 (1936); Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609 (1950); Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307 (1948). In the present case we are of the opinion that defendant's affidavit negates malice on his part and the forecast of evidence by plaintiff failed to show any evidence of the essential element of malice on the part of the defendant and thus the granting of summary judgment in favor of the defendant was proper.
In Zimmerman v. Hogg and Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974), this Court held that a party moving for summary judgment may prevail on his motion by showing that there is no triable issue of fact before the court. We noted that "[t]his burden may be carried by movant by proving that an essential element of the opposing party's claim is nonexistent . . . . (Emphasis added.) If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing." See also, Moore v. Fieldcrest Mills, 296 N.C. 467, 470, 251 S.E.2d 419, 421 (1979).
In his affidavit filed with the motion for summary judgment, defendant Williams averred that he overheard a conversation between three young people in which they were discussing the fact that they could obtain drugs from a school teacher named Middleton. Williams states that he then reported the conversation to Officer Myers of the Lexington Police Department Vice Squad. Defendant Williams by his affidavit further swears that, "I feel it is my civic duty to give you (Officer Myers) this information and I hope it will help prevent or stop some of the drug problems in our community. As a druggist, I know the danger of drug misuse and would hate to see young people (sic) and kid's lives ruined." The affidavit also states that "[a]t no time prior to the day in question did I know Mr. Middleton nor had I ever seen him before that date to my knowledge."
In his motion for summary judgment defendant Williams submitted the above noted affidavit as evidence negating the essential element of malice in plaintiff's case of malicious prosecution. Pursuant to G.S. 1A-1, Rule 56 (Summary Judgment), after defendant submitted this affidavit, plaintiff as the adverse party to the motion for summary judgment could not rest on the allegations of his pleadings. He was required to come forward with his own affidavits or evidence setting forth specific facts as to the maliciousness of defendant's prosecution. To withstand the defendant's summary judgment motion, these facts must show the existence of genuine issues for trial. See Zimmerman v. Hogg and Allen, supra, Pitts v. Pizza, Inc., 296 N.C. 81, 85, 249 S.E.2d 375, 378 (1978); Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 193 (1972). In response to defendant Williams' affidavit, plaintiff submitted the testimony of the defendant Myers. Plaintiff contends this testimony presents evidence of defendant Williams' malice toward the plaintiff, creating a factual issue and thereby making summary judgment inappropriate. We disagree.
Plaintiff alleges first that Myers' testimony creates an issue of fact as to the element of malice in that approximately two weeks before the arrest of Middleton at a meeting between Williams and Myers it was Williams who first asked Myers if he (defendant Myers) ever "[got] any information on Mr. Middleton." Secondly, Myers' testimony contains statements concerning the conversation he had with defendant Williams on March 3 just prior to the arrest of the plaintiff. Plaintiff contends defendant Myers' recollection of this conversation creates a question of fact as to whether or not the defendant Williams instigated this prosecution with malice. Concerning this conversation, the testimony of Myers was as follows:
". . . I went by to see Mr. Williams. When I went by to see Mr. Williams, he made certain statements to me concerning Mr. Middleton. The statements are not at all that plain to me now, but it was in reference to Mr. Middleton having drugs in his truck; that was the context of the statements. I can't remember the exact words right now . . . . I asked him how did he know the drugs would be there, and he responded and said `If I say they will be there they will be there', or something to that effect." (Emphasis ours.)
Viewing this testimony offered by the plaintiff, the non-moving party, indulgently, and giving him the benefit of every reasonable inference to be drawn therefrom, [See Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 193 (1972)], we are of the opinion that plaintiff's evidence presents no specific facts which could be found by the trier of fact to show that the defendant instigated this prosecution with malice. Therefore by his affidavit, defendant Williams has met his burden of showing the lack of any triable issue of fact with regard to his alleged malice in prosecuting this action, and is entitled to judgment as a matter of law.
The counter-testimony offered by plaintiff does not show specific factual controversies as to the maliciousness of defendant's actions which require a trial for the resolution thereof. First, no reasonable inference of malice may be drawn simply from the fact that defendant Myers avers defendant Williams first questioned him as to the plaintiff's involvement in the drug trade. Second, we find that even when viewed in the light most favorable to the plaintiff, the fact that when defendant Williams and defendant Myers discussed plaintiff's involvement in drug trafficking, Williams apparently refused to tell Myers how he knew the drugs would be in plaintiff's truck (although from the equivocal statements in Myers' testimony we cannot be sure just what the defendant Williams told Myers) is not sufficient to establish a factual controversy as to whether or not defendant Williams maliciously caused plaintiff to be prosecuted.
Since defendant Williams' affidavit averred that the prosecution of the plaintiff was instigated in good faith as a civic duty, and the plaintiff failed to present counter-affidavits or other evidence creating factual issues as to the maliciousness of the defendant Williams' action, summary judgment was properly granted for defendant Williams. The opinion of the Court of Appeals is therefore.
Affirmed.