Strickland v. Hedrick

• Decision Date: 02 December 2008
• Docket Number: No. COA08-339.,COA08-339.
• Citation: 669 S.E.2d 61
• Court: North Carolina Court of Appeals
• Parties: Mary Jane STRICKLAND and Steven Randall Strickland, Plaintiffs, v. Gregory K. HEDRICK; City of Lexington; Larry Ritz; Michael Noyes, in his individual and official capacities; Shelly Gutierrez, in his individual and official capacities; Bobby Welch, in his individual and official capacities; Chief John Lollis, in his official capacity; and Tabitha Robertson, Defendants.

669 S.E.2d 61

Mary Jane STRICKLAND and Steven Randall Strickland, Plaintiffs, v. Gregory K. HEDRICK; City of Lexington; Larry Ritz; Michael Noyes, in his individual and official capacities; Shelly Gutierrez, in his individual and official capacities; Bobby Welch, in his individual and official capacities; Chief John Lollis, in his official capacity; and Tabitha Robertson, Defendants.

No. COA08-339.

Court of Appeals of North Carolina.

December 2, 2008.

Appeal by Plaintiffs from Orders entered 22 May 2006 and 31 May 2006 by Judge Ronald E. Spivey; and appeal by Plaintiffs and Defendants from Order entered 16 November 2007 by Judge Steve A. Balog, all orders entered in Forsyth County Superior Court. Heard in the Court of Appeals 23 September 2008.

Robertson, Medlin & Blocker, PLLC, by Jonathan Wall, Greensboro, for Plaintiff-Appellants/Appellees.

Womble Carlyle Sandridge & Rice, PLLC, by Allan R. Gitter, Jack M. Strauch, Bradley O. Wood, and Carol B. Templeton, Winston-Salem, for Defendant-Appellants City of Lexington, Michael Noyes, Shelly Gutierrez, and John Lollis.

Frazier, Hill & Fury, RLLP, by William L. Hill, Torin L. Fury, and James Secor, III, Greensboro, for Defendant-Appellee Gregory Hedrick.

ARROWOOD, Judge.

This appeal arises from a complaint filed by Plaintiffs in Forsyth County, North Carolina, in response to criminal charges brought against them in Davidson County. The factual background of Plaintiffs' claims is summarized as follows: In 2002 Plaintiffs (Mary Jane Strickland and her son, Steven Strickland), operated a sign business at 218 Anna Lewis Drive, Lexington, North Carolina, in a commercial space rented from Dr. Gregory Hedrick beginning on 1 January 2002. Plaintiffs concede that by July 2002 they were delinquent on their rent payments, although the parties disagree about the amount of Plaintiffs' debt. In addition to leasing Plaintiffs a commercial office, Hedrick allowed them to leave personal possessions in part of a separate warehouse on the same property; a medical practice used the rest of the warehouse space as a separately enclosed medical records storage facility.

In August 2002 Plaintiffs sold the sign business to Larry Ritz, who assumed the lease obligation on 1 August 2002 and took possession of the property on 15 August 2002. Thereafter, conflicts arose among the parties. On 29 August 2002 Ritz reported to the police that Plaintiffs had stolen computer software included in the sale of the business. Also on 29 August 2002, Plaintiffs learned that Hedrick had changed the locks to the warehouse area. On 30 August 2002 Plaintiffs tried to get into the warehouse, but Hedrick refused them access, asked for payment of the money Plaintiffs owed him, and called the police. Several Lexington law enforcement officers arrived at the warehouse, including Officer Michael Noyes. In Noyes's presence, Hedrick and Ritz accused Plaintiffs of stealing Ritz's computer software. The officers looked in the warehouse for this software, but did not find it.

Plaintiffs assert that during their interaction at the warehouse on 30 August, Noyes addressed them in an abusive manner and appeared to favor Hedrick in the parties' dispute. Noyes denied this in his deposition testimony, stating that he told Plaintiffs to leave or face trespassing charges, but did not raise his voice or speak rudely to Plaintiffs. The parties agree that Noyes' only personal contact with Plaintiffs was on 30 August 2002, and that no charges were filed that night.

On 14 September 2002 Plaintiffs returned to 218 Anna Lewis Drive and entered the warehouse through the medical records office, ignoring the protests of its employees. Plaintiffs stayed for about five minutes and removed several boxes of items. This incident was reported to the police. On 20 September 2002 Hedrick reported that Plaintiffs had broken into the warehouse again that day, and that Plaintiffs had taken Ritz's computer software. Police officers questioned Plaintiffs about this on 20 September 2002, and warned them to stay away from the property at 218 Anna Lewis Drive.

On 24 September 2002, a Davidson County magistrate issued warrants for Plaintiffs' arrest, based upon information provided by Officer Shelley Gutierrez. Plaintiffs were charged with felony breaking or entering of the warehouse on 14 September 2002, felony larceny from the building, and 2nd degree trespass, also on 14 September 2002. In February 2003 Plaintiffs were tried in Davidson County District Court on the charges of 2nd Degree Trespass. On 11 February 2003 Plaintiffs were found not guilty of 2nd Degree Trespass, and the District Attorney voluntarily dismissed the felony charges.

On 10 February 2006 Plaintiffs filed suit against Defendants Larry Ritz; Dr. Gregory Hedrick; Tabitha Robertson; the City of Lexington; Lexington Police Chief John Lollis; and Lexington Police Officers Shelley Gutierrez, Michael Noyes, and Bobby Welch. Noyes, Gutierrez, and Welch were sued in their official and individual capacities. Plaintiffs brought claims of civil conspiracy and malicious prosecution against all Defendants; claims of abuse of process against Hedrick and Ritz; claims of conversion and unfair or deceptive trade practices against Hedrick; and a claim against the police officers under 42 U.S.C. § 1983, for violation of their U.S. Constitutional rights.

The complaint generally asserted that the Defendants had conspired to knowingly provide false testimony in support of "bogus warrants" charging Plaintiffs with criminal offenses. Plaintiffs alleged that Defendants acted maliciously or recklessly and had continued to prosecute Plaintiffs "after it became apparent the claims were bogus[.]" The complaint also asserted that Hedricks acted with the collateral purpose of collecting the debt owed him. Plaintiffs sought compensatory and punitive damages.

On 14 March 2006 Defendants City of Lexington, and Officers Lollis, Noyes, Gutierrez, and Welch (the municipal Defendants), filed a motion under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2007), seeking dismissal of Plaintiffs' claims, on the grounds that the claims were barred by the applicable statute of limitations and otherwise failed to state a claim for relief. On 22 May 2006 Judge Ronald Spivey ruled on their motion in an order stating in pertinent part:

1. Count I of plaintiffs' Complaint, ... for civil conspiracy, is not barred by the statute of limitations and otherwise states a claim ... [against] Noyes, Gutierrez and Welch[.] ... [The] motion to dismiss ... is DENIED;

2. Count II of plaintiffs' Complaint, ... for malicious prosecution, states a claim ... against the moving defendants[.] ... [The] motion to dismiss as to Count II is DENIED 3. Count III of plaintiffs' Complaint ... for abuse of process, is barred by the applicable statute of limitations[.] ... [These] claims ... [are] DISMISSED WITH PREJUDICE;

. . . .

5. Count VI of plaintiffs' Complaint ... pursuant to 42 § U.S.C.1983, is barred by the applicable statute of limitations, and, with respect to defendants City of Lexington and John Lollis, is also barred [by] the lack of any allegations in plaintiffs' Complaint that ... deprivation of plaintiffs' rights ... occurred pursuant to any policy or custom of defendants City of Lexington or John Lollis[.] ... [Plaintiffs' claims under § 1983] are hereby DISMISSED WITH PREJUDICE[.]

On 10 April 2006 Ritz moved to dismiss Plaintiffs' claims against him, under Rule 12(b)(6). Judge Spivey granted Ritz's motion on 31 May 2006, dismissing all of Plaintiffs' claims against Ritz.

The 22 May 2006 order denied the municipal Defendants' motion for dismissal of Plaintiffs' claims for malicious prosecution and civil conspiracy. Defendants answered on 12 June 2006, denying the material allegations of Plaintiffs' complaint and raising various defenses. On 22 June 2006 Plaintiffs filed a notice of appeal from the orders of 22 May and 31 May 2006. The municipal Defendants moved to dismiss Plaintiffs' appeal from the 22 May 2006 order. Judge L. Todd Burke granted their motion on 15 September 2006, dismissing Plaintiffs' appeal of the 22 May 2006 order as untimely. On 15 December 2006 Plaintiffs withdrew their remaining appeal, from the 31 May 2006 order.

On 10 October 2007 the municipal Defendants filed a motion on behalf of Officers Lollis, Noyes, Gutierrez, and Welch in their official capacities, seeking summary judgment on Plaintiffs' claims of malicious prosecution and civil conspiracy. Defendants asserted that the claims were barred by governmental immunity. On 20 October 2007 the municipal Defendants filed a second summary judgment motion, this time seeking summary judgment for these Defendants in both their individual and official capacities. Defendants asserted that Plaintiffs had produced no evidence to support their claims, and reiterated that Defendants were entitled to governmental immunity.

On 17 April 2006 Hedrick answered Plaintiffs' complaint, denying its material allegations, asserting various defenses, and seeking dismissal of the claims against him. On 19 June 2006 Judge Richard W. Stone entered an order granting Hedrick's motion for dismissal of Plaintiffs' claims of conversion and abuse of process, but denying his motion for dismissal of the claims of civil conspiracy, malicious prosecution, and unfair or deceptive trade practices. On 30 October 2007 Hedrick filed a motion for summary judgment on the three remaining claims.

On 16 November 2007 Judge Steve A. Balog entered an order granting Hedrick's summary judgment motion and denying the municipal Defendants' summary judgment motions. The municipal Defendants have appealed from the denial of their summary judgment motions. The Plaintiffs appeal from: the part of the 22 May 2006 order dismissing Plaintiffs' claims under 42 U.S.C. § 1983; the 31 May 2006 order granting Ritz's motion for dismissal under Rule 12(b)(6), and; the 16 November 2007 order granting summary...