Moore v. City of Creedmoor

• Court: North Carolina Court of Appeals
• Writing for the Court: JOHN; ARNOLD; GREENE; GREENE
• Citation: Moore v. City of Creedmoor, 460 S.E.2d 899, 120 N.C.App. 27 (N.C. App. 1995)
• Decision Date: 05 September 1995
• Docket Number: No. 939SC1073,939SC1073
• Parties: James Y. MOORE, trading and doing business as Moore's Dinette, and Gracye Moore, Plaintiffs-Appellants, v. CITY OF CREEDMOOR, Ralph D. Seagroves, Individually and as Chief of Police of the City of Creedmoor, and Vance Douglas High, Individually and as a Commissioner of the City of Creedmoor, Defendants-Appellees.

Page 899

460 S.E.2d 899

120 N.C.App. 27

James Y. MOORE, trading and doing business as Moore's Dinette, and Gracye Moore, Plaintiffs-Appellants, v. CITY OF CREEDMOOR, Ralph D. Seagroves, Individually and as Chief of Police of the City of Creedmoor, and Vance Douglas High, Individually and as a Commissioner of the City of Creedmoor, Defendants-Appellees.

No. 939SC1073.

Court of Appeals of North Carolina.

Sept. 5, 1995.

Glenn, Mills & Fisher, P.A. by Stewart W. Fisher, Durham, for plaintiffs-appellants.

McDaniel & Anderson by William E. Anderson, Raleigh, for defendants-appellees.

JOHN, Judge.

Plaintiffs James and Gracye Moore (plaintiffs or the Moores) appeal the trial court's grant of summary judgment in favor of defendants the City of Creedmoor (the City), Police Chief Ralph D. Seagroves (Seagroves or the Chief) and former City Commissioner Vance Douglas High (High or Commissioner High). As discussed herein, we find plaintiffs' assignments of error regarding their claim of malicious prosecution in the main persuasive, but conclude the remainder cannot be sustained.

Pertinent facts and procedural information include the following: Since 1947, plaintiff James Y. Moore (Moore) has operated a diner known as Moore's Dinette (the Dinette) in a building located on Lyon Street in Creedmoor, North Carolina. His wife, plaintiff Gracye Moore (Mrs. Moore), is the Dinette's bookkeeper and cook. During the week, the Dinette functions primarily as an eating establishment patronized predominantly by the black community of Creedmoor. On weekend nights (Friday through Sunday), however, disco-dancing is offered inside the Dinette between the hours of 10:00 p.m. and 1:30 a.m. All applicable ABC licenses for the sale of beer are properly maintained.

The City of Creedmoor is governed by a Board of Commissioners (the Board) composed of five Commissioners and headed by the Mayor. The Commission votes on City ordinances and resolutions which, once enacted, represent the official policy of the City. Defendant High was a member of the Board from December 1977 through December 1989, and served as "Police Commissioner" for a significant portion of that time. Since 17 May 1983, defendant Ralph D. Seagroves has occupied the position of Police Chief. The City's Police Chief attends all Commission meetings and reports directly to the Board.

On 4 November 1982, Moore petitioned the Board to rezone an area adjacent to the Dinette in order to construct a parking lot. Although the local Planning Agency approved the request and recommended it be allowed, the matter ultimately was "tabled" by the Board of Commissioners and thus effectively denied.

On 29 December 1982, Moore telephoned for police assistance in quelling a disturbance involving two female customers of the Dinette. However, the two responding officers allegedly merely watched the women fight in the street. Moore subsequently filed an official written grievance, resulting in the reprimand of both officers and suspension of one.

Although the grievance was filed several months before Chief Seagroves assumed his duties, he testified in deposition that he believed the officers should not have been reprimanded. Within a year after his job commenced, Seagroves targeted the Dinette as a "problem area" because of "the traffic ... and the street problem ..., the fights that you have down there." During the winter of 1983-1984, he hired Vermadine Clark (Clark), a black female officer from nearby Oxford, to conduct undercover surveillance activities. Clark was instructed by the Chief to collect evidence regarding illegal alcohol and drug sales at the Dinette. However despite substantial effort on her part, Clark found no evidence of illegal activity taking place at the Dinette; moreover, it was her opinion that the Moores would not tolerate unlawful behavior of any kind in their establishment. It is undisputed that until sometime in 1991, the Moores were unaware Clark had visited the Dinette in the capacity of undercover officer.

In February 1986, a .38 Special handgun was stolen from the Dinette during a break-in. Following his initial report of the incident, Moore spoke repeatedly with Seagroves and other officers about the status of his weapon. Although the Creedmoor Police Department (the Department) received notification in or around September 1987 that the gun was recovered in Jacksonville, North Carolina, it was subsequently destroyed by Jacksonville authorities. Because he had persistently sought information about the status of the weapon, Moore attributed this destruction to the willful failure of the Department to seek return of the handgun and to the Department's desire to leave his business defenseless.

In June 1988, a fire was deliberately started at the Dinette and the letters "KKK" painted on the dumpster. Although Moore immediately called the Department, he perceived its response to be intentionally slow. When he conveyed this to Seagroves and demanded an investigation, the Chief replied he already knew the fire had not been started by the Ku Klux Klan. The arson case was never resolved.

Following this series of events, Seagroves instructed his officers to begin making written reports regarding any time spent responding to calls at the Dinette. During late 1988 and early 1989, also upon the Chief's instructions, police began ticketing automobiles of Dinette patrons for parking violations along Lyon Street.

At a 24 January 1989 appearance before the Board, Seagroves recommended that the City outlaw all parking along Lyon Street. Commissioner High moved for adoption of the ordinance, which passed without notice to the Moores. In their complaint, plaintiffs allege the ordinance was not enforced on week nights nor during daytime hours, but that when the Dinette opened for disco-dancing on the weekends, officers appeared and immediately began ticketing and towing automobiles of Dinette patrons.

On 28 March 1989, Moore formally complained at a Board meeting concerning conduct of the Department. Specifically, he contested the Department's alleged (1) negligent or deliberate failure to return his stolen gun; (2) intentionally slow response to his calls and the failure on a particular occasion to arrest an unruly customer; (3) selective enforcement of the no-parking ordinance against Dinette customers; and (4) enforcement of the public parking ordinance on a privately-owned vacant lot adjacent to the Dinette. High and Seagroves both were in attendance at this meeting.

Following Moore's complaint to the Board, City officers continued their practice of recording each incident involving Dinette patrons. In July 1990, two events occurred which, according to Seagroves, "finalized" his decision to request that the District Attorney commence procedures to close the Dinette.

In the first, a driver backed his automobile into a parking lot on Main Street where Seagroves was seated in his patrol car, causing a collision with the Chief's vehicle. In the second, labelled a "mob scene" or "riot" by defendants, two men began fighting in a parking lot behind a drug store on Main Street, a crowd gathered to watch, and shots allegedly were fired into the air. It is undisputed, however, that although these two incidents occurred in an area near the Dinette, they were never directly linked to the Moores, the Dinette or any of its patrons.

On 24 July 1990, Seagroves appeared before the Board and recommended it seek to have the Dinette proclaimed a public nuisance and shut down. The Chief submitted a collection of police reports allegedly generated since 1988 as a result of activities at the Dinette or the conduct of its patrons. He also revealed in deposition testimony that he and the Board had previously discussed the "problem" of the Dinette on numerous occasions.

After hearing from Seagroves, the Board passed a Resolution on 24 July 1990 requesting the local District Attorney to institute a nuisance abatement action against the Moores pursuant to N.C.Gen.Stat. § 19-1 (1983 & Cum.Supp.1994) and N.C.Gen.Stat. § 19-2.1 (1983). High was no longer a Commissioner on the date the Resolution issued and was not involved in its passage.

Seagroves personally delivered the Resolution to the District Attorney who on 1 August 1990 filed a nuisance abatement action against the Moores in Granville County Superior Court. The complaint was verified by Seagroves. On that same date, the Superior Court issued a temporary restraining order enjoining the Moores from operating the Dinette in any capacity and ordering Seagroves to padlock the premises. Following a hearing, the court entered a preliminary injunction on 10 August 1990 prohibiting operation of the business between the hours of 9:00 p.m. and 7:00 a.m.

The nuisance abatement trial commenced 20 March 1991, and on 26 March 1991 the jury returned a verdict finding the Moores' operation of the Dinette did not constitute a public nuisance. Judgment was entered upon the verdict 11 April 1991, dissolving the preliminary injunction and awarding the Moores attorney fees in the amount of $14,000.00, plus additional costs totalling $578.40.

On 24 January 1992, plaintiffs filed the instant action against the City, Seagroves (individually and in his official capacity as Police Chief), and High (individually and in his official capacity as City Commissioner). In their complaint, plaintiffs alleged, inter alia, the following separate claims for relief with respect to each named defendant: malicious prosecution; intentional infliction of emotional distress; and violation of federal constitutional rights secured by the First, Fifth and Fourteenth Amendments to the United States Constitution. Both compensatory and punitive damages were sought from each defendant.

Defendants answered denying liability. Citing occurrences subsequent to conclusion of the nuisance action, Seagroves separately counterclaimed alleging a new public nuisance action.

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