Rousselo v. Starling

• Citation: 128 N.C.App. 439,495 S.E.2d 725
• Decision Date: 03 February 1998
• Docket Number: No. COA97-304,COA97-304
• Court: Court of Appeal of North Carolina (US)
• Parties: Gary J. ROUSSELO, Plaintiff, v. William J. STARLING, in his official capacity and his individual capacity, Defendant.

Page 725

495 S.E.2d 725

128 N.C.App. 439

Gary J. ROUSSELO, Plaintiff, v. William J. STARLING, in his official capacity and his individual capacity, Defendant.

No. COA97-304.

Court of Appeals of North Carolina.

Feb. 3, 1998.

Attorney General Michael F. Easley by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Jonathan P. Babb, for the defendant.

Elliot, Pishko, Gelbin & Morgan, P.A. by Robert M. Elliot, Winston-Salem, and Deborah K. Ross, for the plaintiff.

WYNN, Judge.

This case arises from a stop and search of Gary J. Rousselo's vehicle on 3 August 1992 by a North Carolina State Highway Patrolman, William J. Starling. In this appeal, Trooper Starling first contends that the trial court erroneously failed to grant summary judgment for him on Rousselo's claim for an alleged violation of his constitutional rights to be free from unlawful search and seizure. We agree and conclude that under the doctrine of qualified immunity Trooper Starling was immune from suit because a reasonable person in his position would not have known that his actions violated a clearly established right. Secondly, Rousselo contends that the trial court erred by granting summary judgment in favor of Trooper Starling on Rousselo's claim for a direct violation of his state constitutional right to be free from unlawful search and seizure. In North Carolina, a direct claim for an alleged violation of a constitutional right is allowed only where there is not an adequate remedy provided by state law. Because the common law claims of false imprisonment and trespass to chattels provide an adequate remedy, we hold that the trial court did not err by dismissing the claim. Finally, we also conclude that the trial court did not err in dismissing Rousselo's claim for false imprisonment because the evidence before the trial court did not show that an illegal restraint had occurred.

The record shows that Rousselo, a resident of California, worked on a film in Tennessee until his job ended on 2 August 1992. The next day, he drove a car that he rented in Tennessee into North Carolina. At approximately 2:10 p.m. on Highway 421 in Wilkes County, Trooper Starling stopped him for driving 70 m.p.h. in a 55 m.p.h. zone.

Thereafter, Rousselo presented his California driver's license and his rental car agreement to Trooper Starling. On the rental agreement from Thrifty Car Rental, the rental car tag number was listed as TF0355. The tag on the rental car, however, was ZLN697. Shortly after stopping him, Trooper Starling asked Rousselo to sit in the patrol vehicle, and Rousselo did so.

For approximately the next twenty minutes, Trooper Starling questioned Rousselo about his background, where he was going, and his occupation. In his deposition, Trooper Starling stated that Rousselo was "evasive" and seemed "real uneasy as he sat there and talked to me, real jittery, real nervous. To me, he seemed more nervous than usual."

Trooper Starling called for backup at 2:34 p.m. Two officers were dispatched. While waiting on backup, Trooper Starling requested several record checks from the State Highway Patrol dispatcher. He called for verification of Rousselo's license, which he received. He also had a check run with the El Paso, Texas Intelligence Center ("EPIC") to determine if Rousselo had been involved with drug trafficking. At 2:42 p.m. the center responded that they had no information on him. During this time he also continued to ask Rousselo questions, and he asked for consent to search Rousselo's vehicle, which was refused.

Trooper Starling's backup, Sergeant Pate and Sergeant Bullock, arrived at 2:50 p.m. The officers conferred amongst themselves and inspected the vehicle from the outside. At 3:02 p.m., the officers requested a canine unit from the Wilkes County Sheriff's Department. At 3:04 p.m., the dispatcher called the car rental company to determine if Rousselo had rented the vehicle.

A Wilkes County deputy arrived with a drug dog at 3:15 p.m. A few minutes after he arrived, the deputy informed the officers that the dog alerted to the presence of drugs. Also at 3:15 p.m., Thrifty Car Rental informed the dispatcher that Rousselo did rent the vehicle. From the time of the alert until 3:47 p.m., Trooper Starling searched Rousselo's car and his suitcase. No contraband was found. After the search was completed, Trooper Starling was informed of the confirmation from Thrifty. At 3:47, the deputy and the dog left the scene. Shortly thereafter, Rousselo left, followed by Trooper Starling at 3:49 p.m. From the time of the initial stop until the troopers left, a total of 99 minutes elapsed. Rousselo was cited for driving 70 m.p.h. in a 55 m.p.h. zone, and he waived his court appearance and paid the fine and court costs.

On 25 July 1995, Rousselo filed in Wake County a complaint against Trooper Starling in his official and individual capacity and against several other defendants, including the State of North Carolina and the North Carolina State Highway Patrol. The complaint raised three claims for relief arising from the stop and search: one for violation of 42 U.S.C. § 1983, another for a violation of the North Carolina State Constitution, and the third for false imprisonment. On a motion for change of venue by Trooper Starling, the action was transferred to Wilkes County. The claims against the defendants other than Trooper Starling were dismissed for failure to state a claim. On 17 September 1996, Trooper Starling moved for summary judgment. On 19 December 1996, Judge Julius A. Rousseau, Jr., denied the motion for summary judgment as to the section 1983 claim, and granted it as to all remaining claims. From this order, both parties appeal.

I.

Although not discussed by either party in the briefs, we first must consider the interlocutory nature of these appeals.

"An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C.App. 730, 733, 460 S.E.2d 332, 334 (1995). Furthermore, "[a] grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). There are a few exceptions to this rule, one of which is that an interlocutory order can be appealed if the trial court's order deprives the appellant of a substantial right which would be lost absent immediate review. See Page, 119 N.C.App. at 734, 460 S.E.2d at 334 (citing N.C. Gen.Stat. §§ 1-277(a), 7A-27(d)(1)).

Trooper Starling appeals the denial of his motion for summary judgment on the section 1983 claim, and asserts on appeal the defense of qualified immunity. In Corum v. University of North Carolina, 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), our Supreme Court held that "a denial of a summary judgment motion is normally not immediately appealable; however, under the case of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), when a motion for summary judgment based on immunity defenses to a section 1983 claim is denied, such an interlocutory order is immediately appealable before final judgment." Id. at 767, 413 S.E.2d at 280. Therefore, because Trooper Starling's motion raised the qualified immunity defense its denial affects a substantial right and is immediately appealable.

Mr. Rousselo's appeal raises a more complicated question. He appeals a decision that defeated two of three claims that arose from the same factual situation.

Our Supreme Court has held that the right to avoid two trials on the same issue may be a substantial right. Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982). The Court stated that "the possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue." Id.

This Court has interpreted the language of Green and subsequent cases as creating a two-part test to see if a substantial right is affected. A party is required to show that (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists. Moose v. Nissan of Statesville, 115 N.C.App. 423, 426, 444 S.E.2d 694, 697 (1994).

In this case, as all three of Rousselo's claims arose from the same transaction, the first element is met. The second element is also met because one jury could hear the facts for the section 1983 claim and rule one way while another jury could hear the same set of facts for the second two claims and rule differently, even though all three claims are based on the same facts. Accordingly, a substantial right is affected and Rousselo's appeal, although interlocutory, is properly before us.

Before turning to the merits of the appeal, we note that in Jeffreys v. Raleigh Oaks Joint Venture, we said that "[i]t is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994). Failure to make this showing subjects an appeal to dismissal. Id. Although we have decided to consider this appeal notwithstanding the lack of a showing, we caution appellants to remember its necessity in the future.

II.

We first consider Trooper Starling's appeal, which presents the question of whether the trial court erred by...