Painter v. City of MT, COA18-197

Docket NºNo. COA18-197
Citation823 S.E.2d 583
Case DateMarch 05, 2019
CourtCourt of Appeal of North Carolina (US)

823 S.E.2d 583 (Table)

Gregory PAINTER, Plaintiff,
CITY OF MT. HOLLY, Acting as The Mt. Holly Police Department ; Thomas Sperling, Individually and in His Official Capacity as a Police Officer for The City of Mt. Holly; James Allen Benfield, Individually and in His Official Capacity as Police Officer/Captain for The City of Mt. Holly; The City of Belmont, Acting as The City of Belmont Police Department; Chad Austin Alexander; Chris Small ; and Tracy Small, Defendants.

No. COA18-197

Court of Appeals of North Carolina.

Filed: March 5, 2019

Gray, Layton, Kersh, Solomon, Furr & Smith, P.A., Gastonia, by William E. Moore, Jr., for plaintiff-appellee.

Cranfill, Sumner & Hartzog L.L.P., Charlotte, by Patrick H. Flanagan and Stephanie H. Webster, for defendants-appellants, City of Mt. Holly, Thomas Sperling, and James Allen Benfield.

MURPHY, Judge.


This case arises out of events that took place in 2012, leading to the arrest of Plaintiff, Gregory Painter, by Mt. Holly police. Plaintiff owned property in Mt. Holly that is the site of an auto body shop, which Plaintiff also owned (hereinafter "the property"). Plaintiff leased the property and the business to Defendants Chris and Tracy Small ("the Smalls"), who also resided at the property. Defendant Chad Austin also lived on the property. Plaintiff attempted to evict Austin and the Smalls through the commercial lease eviction process, but the magistrate assigned to the proceedings denied the claim and required Plaintiff to use the residential eviction process instead. In his attempts to remove the Smalls and Austin, Plaintiff locked four customers’ cars behind a fence that neither the Smalls nor the customers could open.

Defendant Thomas Sperling ("Sperling") was a police officer for the Mt. Holly Police Department in September 2012 when the Mt. Holly Police Department received a series of calls regarding incidents at the property and reporting that vehicles had been stolen therefrom. Sperling responded to calls from the Smalls and Austin on 10 September 2012 and undertook an investigation. Sperling wrote up two incident reports detailing his investigation, and sought the advice of the District Attorney’s office as to whether he should seek arrest warrants for Plaintiff on charges including felonious breaking and entering and larceny of a motor vehicle. Based on his investigation and the advice of an Assistant District Attorney, Sperling appeared before a magistrate and was granted arrest warrants for Plaintiff. As part of this process, Sperling filled out a probable cause affidavit, but it was rendered unavailable to both parties at some time prior to this appeal and is not included in the record before us.

After arrest warrants were issued for Plaintiff, police officers from the Belmont Police Department executed the warrants and arrested Plaintiff at his residence. Sperling did not take part in the arrest. Assistant District Attorney Jeff Jackson subsequently took voluntary dismissals of all cases against Plaintiff because Austin was unable to testify for the prosecution due to serious illness.

Plaintiff filed this action on 10 September 2015 against the City of Mt. Holly (hereinafter "Mt. Holly"), Mt. Holly police officers James Benfield ("Benfield") and Sperling, the City of Belmont, Austin, and the Smalls. Plaintiff filed an Amended Complaint on 6 December 2015, raising seven causes of action: (1) False Imprisonment and Arrest; (2) Abuse of Process/Malicious Prosecution; (3) Conspiracy to Violate the North Carolina Constitution; (4) Negligent Hiring, Training, Supervision, and Retention; (5) Violation of rights under the U.S. Constitution pursuant to 42 U.S.C. § 1983 ; (6) Conspiracy to Violate Constitutional Rights pursuant to 42 U.S.C. § 1985 ; and (7) Malicious Conduct giving rise to Punitive Damages. Austin and the Smalls are not parties to this appeal, and the City of Belmont was granted summary judgment on 2 October 2017. The only causes of action before us are those Plaintiff brought against Benfield and Sperling (Claims 1-3 and 5-7) and Mt. Holly (Claims 1-4).

Plaintiff’s Claim (1) alleges Sperling and Benfield, "individually and on behalf of their employer, the Mt. Holly PD ..., handcuffed Plaintiff and locked him in a police car, sequestering him in his own residence and took him to jail[,]" amounting to false imprisonment and arrest. Claim (2) alleges Sperling and Benfield "violated their duty of care to Plaintiff ... in arresting Plaintiff without probable cause (knowing him to be innocent of the charges levied) and in prosecuting Plaintiff for unlawful, illegitimate and malicious reasons." In Claim (3), Plaintiff contends Sperling and Benfield "intentionally acted, combined and conspired to deprive Plaintiff of his constitutional rights to the equal protection of the laws; ... subjected Plaintiff to an unlawful search and seizure ... depriving him of his liberty and freedom (including free speech on matters of public interest) ...."

Claim (4) is brought solely against Mt. Holly, and alleges:

Mt. Holly failed to properly screen applicants for positions involving law enforcement and/or failed to properly train and supervise said personnel .... Further, [Mt. Holly] knew or should have known of the inadequacy of the training, and of [Benfield and Sperling’s] inability to properly execute his duties involving the investigation and arrest of citizens and members of the public.

Plaintiff also alleges Mt. Holly is vicariously liable for Claims (1)-(3).

In Claims (5) and (6), Plaintiff asserts federal claims against Benfield and Sperling.1 Claim (5) alleges in relevant part, "Defendants deprived Plaintiff of his civil rights while acting under color of state law, as proscribed by 42 U.S.C. § 1983, by ... depriving Plaintiff of his liberty and property without due process ... in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution ... and Article I, § 16 of the North Carolina Constitution...." Claim (6) is likewise grounded in the United States Code, alleging, "two or more of the named Defendants willfully and intentionally combined and conspired to retaliate against Plaintiff ...." Finally, Claim (7) alleges Sperling and Benfield "are each guilty of malicious, willful, and wanton conduct directed toward [Plaintiff] .... As a result of egregiously wrongful conduct, said Defendants are subject to the imposition of punitive damages in such amounts as may be properly awarded by a jury ...."

In their answer to the amended complaint, Sperling, Benfield, and Mt. Holly denied Plaintiff’s allegations and asserted a number of defenses, including: lack of subject matter jurisdiction; failure to state a claim upon which relief can be granted; governmental immunity; qualified immunity; public official immunity; the public duty doctrine; unclean hands; and the statute of limitations. Sperling, Benfield, and Mt. Holly later moved for summary judgment, arguing:

Defendants did not engage in tortious conduct towards the [P]laintiff nor violate is [sic] civil rights; Plaintiff’s tort claims are barred by governmental immunity; Plaintiff has failed to establish that a lack of probable cause existed for his arrest and there is no showing of malice; and the claims against [Sperling and Benfield] are barred by qualified immunity and public official’s immunity.

Defendants’ Motion for Summary Judgment was denied on 2 October 2017. Now, Defendants timely appeal the denial of the motion for summary judgment and argue the trial court erred in denying that motion. On appeal, Defendants allege they are entitled to both public official and qualified immunity, there was sufficient probable cause to support Plaintiff’s arrest, Plaintiff failed to make prima facie cases regarding Claims (4) and (5), and Plaintiff had an adequate state law remedy that bars him from bringing Claim (3).


A. Interlocutory Review

Defendants appeal the trial court’s interlocutory order denying Defendants’ motion for summary judgment without waiting for a final judgment. "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Royal Oak Concerned Citizens Ass’n v. Brunswick County , 233 N.C. App. 145, 148, 756 S.E.2d 833, 835 (2014). Defendants assert they are entitled to an interlocutory appeal because the trial court’s order affects Defendants’ substantial right of immunity. We agree.

"[A]ppeal lies of right directly to the Court of Appeals ... [f]rom any interlocutory order or judgment of a superior court or district court in a civil action or proceeding that ... [a]ffects a substantial right." N.C.G.S. § 7A-27(b)(3) (2017). Generally, a substantial right argument requires a case-specific analysis of the facts and procedural context of the appeal, but our courts have repeatedly held that "claims of immunity ... affect a substantial right for purposes of appellate review." See Royal Oak Concerned Citizens Ass’n , 233 N.C. App. at 149, 756 S.E.2d at 836. This Court "has neither held ‘that non-immunity-related issues [will] always be considered on the merits in the course of deciding an immunity-related interlocutory appeal’ nor ‘recognized the existence of a substantial right to have multiple issues addressed in the course of an...

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