Middleton v. Myers

• Decision Date: 08 January 1980
• Docket Number: No. 110,110
• Parties: Herman Clayton MIDDLETON v. James Woodrow MYERS and Lou Williams, Jr.
• Court: North Carolina Supreme Court

Page 108

261 S.E.2d 108

299 N.C. 42

Herman Clayton MIDDLETON v. James Woodrow MYERS and Lou Williams, Jr.

No. 110.

Supreme Court of North Carolina.

Jan. 8, 1980.

Wilson, Biesecker, Tripp & Wall by Joe E. Biesecker, Lexington, for plaintiff-appellant.

Rosbon D. B. Whedbee, Ahoskie, for defendant-appellee Williams.

BROCK, Justice.

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.

HUSKINS, Justice, dissenting.

The court is not authorized on a motion for summary judgment to decide issues of fact and credibility. Moore v. Fieldcrest Mills, 296 N.C. 467, 251 S.E.2d 419 (1979); Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). It is authorized to determine only whether genuine issues of fact or credibility exist. The party moving for summary judgment has the burden of "clearly establishing the lack of any triable issue of fact by the record properly before the Court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." 6 Moore's Federal Practice § 56.15(8) at 642 (2d ed. 1976). Accord, Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978). A motion for summary judgment must be denied if the opposing party submits affidavits or other supporting materials which materially contradict the factual showing made by movant or which cast doubt on the credibility of movant's witness. Kidd v. Early, supra.

In the instant case the dispositive question is whether the affidavit offered by plaintiff in opposition to defendant's motion for summary judgment raises a material question of fact with respect to the element of malice. In my opinion, plaintiff's evidentiary showing raises a factual controversy as to whether or not defendant Williams maliciously caused plaintiff to be prosecuted and casts doubt on the credibility of defendant Williams.

The affidavit offered by plaintiff tends to show that two weeks before Mr. Middleton's arrest, Mr. Williams, a pharmacist, had a conversation with Officer Myers, a member of the Lexington Police Department assigned to the drug squad. In the affidavit Officer Myers asserts that "(i)n the conversation, Mr. Williams and I were discussing information or just who had given me information. I asked him did he ever have any information for me, And he asked me did I ever get any information on Mr. Middleton." (Emphasis added.) Sometime later Mr. Williams got word to Officer Myers that he wanted to see him at the pharmacy. At that time Mr. Williams informed Officer Myers that Middleton had drugs in his truck:

"I asked him how did he know that 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 wording. That's all I remember Mr. Williams telling me on that occasion. Mr. Williams made no statement to me that he had overheard any previous conversation from other persons concerning Mr. Middleton, and he did not relate to me how he knew the drugs would be there. He just responded, 'If I tell you they will be there, they will be there.' He did not tell me how he learned this information." (Emphasis added.)

Thus, defendant...