Cox v. Roach

• Citation: 723 S.E.2d 340
• Decision Date: 07 February 2012
• Docket Number: No. COA11–905.,COA11–905.
• Parties: Krista Dawn COX et al., Plaintiffs, v. David ROACH et al., Defendants.
• Court: North Carolina Court of Appeals

723 S.E.2d 340

Krista Dawn COX et al., Plaintiffs,

v.David ROACH et al., Defendants.

No. COA11–905.

Court of Appeals of North Carolina.

Feb. 7, 2012.

Appeal by plaintiffs from orders entered 17 December 2010 by Judge R. Stuart Albright and 25 April 2011 by Judge Judson D. DeRamus, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 14 December 2011.

Smith, James, Rowlett & Cohen, LLP, Greensboro, by Norman B. Smith, for plaintiffs-appellants.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, by James C. Adams, II, John S. Buford, and Clint S. Morse, for defendants-appellees David Roach and The Rector & Visitors of the University of Virginia.

The Forsyth County Attorney's Office, Winston–Salem, by Kevin J. McGuckin, for defendant-appellees Joe William Adkins, Jr., William T. Schatzman and the Hartford Fire Insurance Company.

STROUD, Judge.

Plaintiffs appeal trial court orders allowing a motion to dismiss and granting a summary judgment motion in favor of defendants which resulted in the dismissal of all of plaintiffs' claims. For the following reasons, we affirm.

I. Background

On 9 and 11 June 2010, plaintiff filed two complaints with different file numbers against defendants ¹ bringing causes of action for false arrest, false imprisonment, battery, malicious prosecution, violation of the North Carolina Constitution, conversion, conspiracy, and recovery under the sheriff's bond. On or about 8 July 2010, defendants Joe Williams Adkins, Jr. (“Adkins”) and William T. Schatzman (“Schatzman”) answered plaintiffs' complaint and substantially denied the material allegations therein; defendants Adkins and Schatzman also raised various defenses. On or about 20 August 2010, defendant Travelers answered plaintiffs' complaint and also alleged various defenses. On 25 October 2010, Hartford Fire Insurance Company (“Hartford”) was substituted for defendant Travelers. On or about 29 October 2010, defendant David Roach (“Roach”) answered plaintiffs' complaint by substantially denying the material allegations; defendant Roach also asserted various defenses and made a motion to dismiss. Also on or about 29 October 2010, defendant The Rector and Visitors of the University of Virginia (“UVA”) made a motion to dismiss alleging several defenses, including sovereign immunity.

On 22 November 2010, plaintiff filed a “MOTION TO SUBSTITUTE AMENDED COMPLAINT FOR ORIGINAL COMPLAINT[.]” The amended complaint alleged:

10. A principal business of plaintiff is to recover x-ray films from hospital radiology departments which are being discarded, to remove and shred all papers containing patient identification and medical information, to process and dissolve the film with heated chemicals, and remove therefrom silver, which this plaintiff sells. Over the years plaintiff Chesapeake Microfilm, Inc., has provided these services for hundreds of hospitals.

11. At all times material hereto, plaintiffs Krista Dawn Cox and Joshua Scott Wallace were employees of plaintiff Chesapeake Microfilm, Inc.

....

13. On or about June 1, 2007, plaintiff Krista Dawn Cox called defendant University of Virginia's radiology department and asked if there were any radiological film to be discarded. An agent and employee of defendant University of Virginia, then and there acting within the course and scope of his authority, told Krista Dawn Cox that defendant University of Virginia had 32 drums of radiological film that was being discarded and needed to be picked up. Arrangements were made between plaintiff Krista Dawn Cox and this employee of defendant University of Virginia for the film to be picked up on June 2, 2007.

14. On June 2, 2007, pursuant to the above arrangements, plaintiff Joshua Scott Wallace, driving a truck belonging to plaintiff Chesapeake Microfilm, Inc., went to the radiology department of defendant University of Virginia in Charlottesville, Virginia; with the assistance of employees of defendant University of Virginia, who were then and there acting within the course and scope of their agency and authority, picked up the 32 barrels of radiological film, which defendant University of Virginia desired to discard; and transported that film back to the place of business of plaintiff Chesapeake Microfilm, Inc., in Forsyth County, North Carolina.

15. Soon after the radiological film from defendant University of Virginia arrived at the place of business of plaintiff Chesapeake Microfilm, Inc., employees of this plaintiff shredded and destroyed the paper film jackets and all other paper accompanying the film bearing any identifying information of patients or medical information of any type.

....

17. On June 13, 2007, defendants David Roach and the University of Virginia, knowing that plaintiffs had been acting lawfully in all respects and had not violated the laws of any jurisdiction, caused to be issued a felony warrant of arrest for plaintiff Joshua Scott Wallace, charging him with theft in violation of Article 18.2–95 of the Code of Virginia.

18. On June 26, 2007, defendants David Roach and the University of Virginia, knowing that plaintiffs had been acting lawfully in all respects and had not violated the laws of any jurisdiction, caused to be issued a felony warrant of arrest for plaintiff Krista Dawn Cox, charging her with theft in violation of Article 18.2–95 of the Code of Virginia.

19. Defendant David Roach came to Forsyth County, North Carolina, and obtained the assistance and participation of defendants Joe William Adkins, Jr., and William T. Schatzman in arresting plaintiff Joshua Scott Wallace, causing him to be placed in the Forsyth County jail, causing him to be transported to Charlottesville, Virginia, causing him to be placed in a jail in Charlottesville, Virginia, and causing him to be brought to the criminal court of the Commonwealth of Virginia.

20. Defendant David Roach came to Forsyth County, North Carolina, and obtained the assistance and participation of defendants Joe William Adkins, Jr., and William T. Schatzman in arresting plaintiff Krista Dawn Cox, causing her to be placed in the Forsyth County jail, requiring her to drive to Charlottesville, Virginia, causing her to be placed in a jail in Charlottesville, Virginia, and causing her to be brought to the criminal court of the Commonwealth of Virginia.

21. Incidental to the arrest of plaintiff Joshua Scott Wallace, defendants acting in concert and cooperation, arranged for the seizure, and carried out the seizure, of silver owned by plaintiff Chesapeake Microfilm, Inc., from the safe at its place of business with a value of approximately $15,000, approximately 30,000 pounds of radiological film owned by plaintiff Chesapeake Microfilm, Inc., at its place of business with a value of approximately $30,000, a panel truck owned by plaintiff Chesapeake Microfilm, Inc., with a value of approximately $25,000, and silver owned by plaintiff Chesapeake Microfilm, Inc., at the premises controlled by it in Knoxville, Tennessee, with a value of approximately $300,000.

22. Plainly no crime whatever had been committed by plaintiffs or anyone else in connection with the radiological film which defendant University of Virginia was discarding. In the course of making the arrests and the seizures, additional information came to the attention of defendants, which made it even more clear, definite, and certain, that no crime had been committed, or could have been committed. Nevertheless, in the complete absence of probable cause that any criminal activity had taken place, defendants in concert and participation proceeded in the manner described above. Defendants displayed malicious motivations in various ways, including discussing how the forfeitures of the money and property would be split between the law enforcement agencies, trying to coerce a guilty plea from Ronnie W. Cox, the chief executive officer of plaintiff Chesapeake Microfilm, Inc., (even though he had not been and never was charged with any crime), threatening plaintiff Krista Dawn Cox that her father Ronnie W. Cox would be put in prison for the rest of his life if she did not cooperate, timing the arrest of Krista Dawn Cox for a Friday evening to insure that she could not get out of jail until the following Monday, causing false testimony to be given at probable cause hearing in criminal court in Charlottesville, Virginia, and threatening to have additional criminal charges brought against plaintiffs Joshua Scott Wallace and Krista Dawn Cox directly to the grand jury in Charlottesville, Virginia.

23. Plaintiff Joshua Scott Wallace was acquitted for all charges in the circuit court of the city of Charlottesville, Virginia, on July 16, 2008.

24. The charges against Krista Dawn Cox did not come to trial, but defendants have agreed to the entry of an order in the Superior Court of Forsyth County, North Carolina, that no crime was committed in the state of North Carolina, and for the expunction of all of the criminal records of plaintiffs Krista Dawn Cox and Joshua Scott Wallace in the Commonwealth of Virginia.

25. Defendants agreed to, and eventually did, return all of the property of Chesapeake Microfilm, Inc., that had been seized.

26. Defendants made contact with other hospital radiology departments from which plaintiff Chesapeake Microfilm, Inc., picked up radiological film to be discarded on a regular basis. Defendant told these hospitals that the plaintiffs had been engaged in criminal conduct in picking up the radiological film. Directly and proximately as a result of these contacts by defendants, plaintiff Chesapeake Microfilm, Inc., lost one of its most valuable sources for radiological film to be discarded, causing this plaintiff to lose net profit in the amount of approximately $250,000 per year.

Plaintiffs brought causes of action for false arrest, false imprisonment, battery, and malicious prosecution, on behalf of Joshua Scott Wallace (“Wallace”) and Krista Dawn Cox (“Cox”);...