Moore v. Evans, COA95-862

Citation476 S.E.2d 415,124 N.C.App. 35
Decision Date15 October 1996
Docket NumberNo. COA95-862,COA95-862
PartiesFranklin Allen MOORE, Plaintiff, v. T.H. EVANS, individually and in his official capacity as Police Officer in the Ayden, North Carolina Police Department, and Roger Paul, in his official capacity as Chief of Police of the Ayden, North Carolina Police Department and City of Ayden, North Carolina, et al., Defendants.
CourtCourt of Appeal of North Carolina (US)

Steven M. Fisher and Mark A. Ward, Greenville, for plaintiff-appellee.

Ward and Smith, P.A. by Kenneth R. Wooten and Cheryl A. Marteney, New Bern, for defendants-appellants T.H. Evans and Roger Paul.


On 15 May 1993, Officers K.S. Stewart and T.H. Evans (defendant Evans) of the Ayden Police Department responded to a call regarding a possible breaking and entering at 205 Edge Road in Ayden, North Carolina. Upon arriving at the Edge Road address, Officer Stewart searched the surrounding area and discovered stereo speakers and other household items in the backyard of the residence, behind a fence. At the same time, Officer Evans spoke with Mable Sumpter, the neighbor who had called the Ayden Police Department after hearing noises coming from the 205 Edge Road residence and seeing someone in the backyard. As Mrs. Sumpter knew that her neighbors were out of town, she called the police department.

When Officer Evans questioned Mrs. Sumpter about her call to the police department, she explained that she had seen a black male, "wearing white clothing," in her neighbors' backyard. Mrs. Sumpter noted that she had not seen the suspect's face, and told Officer Evans that she could not identify the person. Officer Evans subsequently left Mrs. Sumpter's home, only to return moments later with plaintiff Franklin Allen Moore in the backseat of a patrol car. Officer Evans had Mr. Moore get out of the vehicle and stand approximately thirty (30) to forty (40) yards from Mrs. Sumpter, in front of the neighboring residence. A row of hedges separated Mrs. Sumpter and Mr. Moore. Mrs. Sumpter nodded her head at Officer Evans to indicate that the person was similarly attired to the person she had seen in her neighbors' backyard earlier.

Thereafter, Officer Evans put Mr. Moore into his patrol car and questioned him about his activities on the evening in question. Although Mr. Moore insisted upon his innocence, Officer Evans encouraged him to confess. Mr. Moore notes that at one point, the officer threatened to hold him in the car all night until he confessed; however, Mr. Moore would not confess. Subsequently, Officer Evans took Mr. Moore to the Ayden Police Department, where Officer Evans and another officer interrogated him. Although the officers insisted that things would go lighter for him if he would confess, Mr Moore maintained his innocence. In fact, he told the officers that one of their fellow officers had seen him at a nightclub at the time that the officers were insisting that he broke into the Edge Road residence.

After interrogating Mr. Moore, Officer Evans took him to a magistrate, and requested that the magistrate "[p]ut him under a high bond, I do not want him to get out." In response, the magistrate issued a warrant, charging Mr. Moore with felonious breaking and entering, and felonious larceny, and placing Mr. Moore under a $20,000.00 secured bond. Notably, the recommended minimum bond pursuant to the Pretrial Release Policies in the Three-A Judicial District for these charges is $7,500.00. Further, no inquiry was made into Mr. Moore's prior criminal record, nor his risk of flight, his finances, family ties, character, length of residence in the community, etc.--factors set forth in North Carolina General Statutes section 15A-534(b) and (c), which may justify such an excessive bond.

Since Mr. Moore could not post bail, he remained in jail. Although Officer Evans' testimony indicates otherwise, once Mr. Moore was arrested, the Ayden Police Department made a determination that no further investigation was necessary in the 15 May 1993 breaking and entering at 205 Edge Road.

On 20 May 1993, four days after Mr. Moore's arrest, an informant told Officer Evans that John Eric Ellis had committed the 15 May crime for which Mr. Moore had been arrested. Thereafter, on 21 May 1993, Ellis confessed to this crime, and indicated to Officer Evans that he had been wearing white shorts and a white shirt on the evening of 15 May 1993. Consequently, Officer Evans arrested Ellis for the 15 May break-in, and although he had a previous criminal record, Ellis was only placed under a $7,500.00 unsecured bond. However, Mr. Moore was not released from jail.

Mr. Moore's probable cause hearing was set for 8 June 1993--some twenty-three (23) days after his arrest and eighteen (18) days after Ellis' confession to the crime for which Mr. Moore had been charged. Officer Evans was not present for the hearing, and therefore, the trial judge continued Mr. Moore's case until 22 June 1993. Mr. Moore's attorney requested a bond reduction for his client at the 8 June hearing, and the judge continued this request until 9 June 1993, so that the assistant district attorney could contact Officer Evans and discuss the logistics of the case. Upon calling Officer Evans, the prosecutor was told that another person had been arrested, and that the case against Mr. Moore should be dismissed. The charges against Mr. Moore were consequently dismissed and he was released on 8 June 1993.

On 16 May 1994, Mr. Moore filed this action in Pitt County Superior Court against defendants T.H. Evans, individually and in his official capacity as a police officer with the City of Ayden Police Department, Roger Paul, in his official capacity as Chief of Police of the City of Ayden Police Department, and the City of Ayden, alleging false imprisonment, malicious prosecution and deprivation of his civil rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983. Defendants answered, denying the material allegations of the complaint and raising the defenses of qualified and official immunity. Thereafter, defendants Evans and Paul moved for partial summary judgment, contending that they were entitled to such relief on the grounds of qualified and official immunity. By order entered 7 June 1995, Judge David Q. LaBarre denied the motion. Defendants Evans and Paul appeal.

At the outset, we must note that an order which does not completely dispose of a case is interlocutory and generally not appealable. Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). The purpose of this rule prohibiting interlocutory appeals is to " 'prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.' " Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). "The denial of a motion for summary judgment is not a final judgment and is generally not immediately appealable, even if the trial court has attempted to certify it for appeal under Rule 54(b) of the North Carolina Rules of Civil Procedure." Henderson v. LeBauer, 101 N.C.App. 255, 264, 399 S.E.2d 142, 147 (citing Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983)), disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991).

However, when the moving party claims sovereign, absolute or qualified immunity, the denial of a motion for summary judgment is immediately appealable. See, e.g., Davis v. Town of Southern Pines, 116 N.C.App. 663, 449 S.E.2d 240 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995); Herndon v. Barrett, 101 N.C.App. 636, 400 S.E.2d 767 (1991); Corum v. University of North Carolina, 97 N.C.App. 527, 389 S.E.2d 596, aff'd in part and rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). In fact, the United States Supreme Court has previously held that a claim of qualified immunity to the extent that it is based on legal questions of whether a violation of clearly established law occurred is immediately appealable since it is immunity from suit rather than a defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411, 424 (1985). As such, defendants' appeal is properly before this Court.

I. State Claims

On appeal, defendants Evans and Paul first contend that the trial court erred in denying their motion for partial summary judgment regarding Mr. Moore's claims for malicious prosecution and false imprisonment (collectively referred to as "state claims" herein). Specifically, defendants contend that they were entitled to governmental and/or official immunity on these claims. We do not agree.

Summary judgment is properly granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." N.C.Gen.Stat. § 1A-1, Rule 56(c)(1990). The moving party has the burden of "positively and clearly" establishing the absence of any genuine issue of material fact. James v. Clark, 118 N.C.App. 178, 180, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). A movant may meet this burden by showing that (1) an essential element of the nonmovant's case is nonexistent; or (2) based upon discovery, the nonmovant cannot produce evidence to support an essential element of his claim; or (3) the movant cannot surmount an affirmative defense which would bar the claim. Watts v. Cumberland County Hosp. System, 75 N.C.App. 1, 6, 330 S.E.2d 242, 247 (1985), rev'd on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986). In making its decision on the motion, the trial court must consider the evidence in the light most favorable to the...

To continue reading

Request your trial
63 cases
  • Hines v. Johnson
    • United States
    • U.S. District Court — Middle District of North Carolina
    • March 30, 2020
    ...N.C. App. 426, 431, 784 S.E.2d 211, 215 (2016), disc. rev. denied, 369 N.C. 69, 793 S.E.2d 223 (2016) (quoting Moore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996)). If the "cloak of official immunity has been pierced," a public official is "'then liable for simple negligence' a......
  • Groce v. Jackson
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 24, 2022
    ... ... genuine factual dispute exists and summary judgment is ... improper.” Evans v. Technologies Applications & ... Serv. Co. , 80 F.3d 954, 959 (4th Cir. 1996) ... F.3d at 656-57 ... (citing Moore v. Evans , 124 N.C.App. 35, 41, 476 ... S.E.2d 415, 421 (1996)). “As long as a public ... ...
  • White v. City of Burlington
    • United States
    • U.S. District Court — Middle District of North Carolina
    • September 30, 2019
    ...(2) without probable cause; (3) with malice; and (4) the prior proceeding terminated in favor of [the] plaintiff." Moore v. Evans, 124 N.C.App. 35, 476 S.E.2d 415, 421 (1996) (alterations in original) (quoting Williams v. Kuppenheimer Mfg. Co., Inc., 105 N.C.App. 198, 412 S.E.2d 897, 899 (1......
  • Howard v. City of Durham
    • United States
    • U.S. District Court — Middle District of North Carolina
    • September 16, 2020
    ...[him]; (2) without probable cause; (3) with malice; and (4) the prior proceeding terminated" in Howard's favor. Moore v. Evans, 124 N.C.App. 35, 476 S.E.2d 415, 421 (1996) (quoting Williams v. Kuppenheimer Mfg. Co., Inc., 105 N.C.App. 198, 412 S.E.2d 897, 899 (1992) ).Dowdy argues that Howa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT