Thomas v. Sellers

• Decision Date: 20 February 2001
• Docket Number: No. COA00-337.,COA00-337.
• Citation: Thomas v. Sellers, 142 N.C. App. 310, 542 S.E.2d 283 (N.C. App. 2001)
• Parties: Steve THOMAS and the State of North Carolina, ex rel. Steve Thomas, Plaintiffs, v. James SELLERS, Sheriff of Anson County, in his official capacity, Deputy Sheriff David Morton, in his individual and official capacity, and Fidelity and Deposit Co. of Maryland, as surety, Defendants.
• Court: North Carolina Court of Appeals

542 S.E.2d 283

142 NC App. 310

Steve THOMAS and the State of North Carolina, ex rel. Steve Thomas, Plaintiffs, v. James SELLERS, Sheriff of Anson County, in his official capacity, Deputy Sheriff David Morton, in his individual and official capacity, and Fidelity and Deposit Co. of Maryland, as surety, Defendants.

No. COA00-337.

Court of Appeals of North Carolina.

February 20, 2001.

Drake and Pleasant, by Henry T. Drake, Wadesboro, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr., Winston-Salem, for defendant-appellees.

MARTIN, Judge.

Plaintiff appeals from the entry of summary judgment in favor of defendants, dismissing plaintiff's claims for malicious prosecution, assault, and false imprisonment. The pleadings, depositions, and affidavits before the trial court at the summary judgment hearing tended to show that ancillary to litigation pending in the Superior Court of Anson County between Edwards Timber Company, Inc., and Jerry Wayne Flake, the Clerk of Superior Court issued, on 1 July 1997, an Order of Seizure In Claim And Delivery directing the Sheriff of Anson County to seize certain property belonging to Mr. Flake, including a 711 E Hydro-Axe with 20" Koehring saw (hereinafter "Hydro-Axe"). The Hydro-Axe was located at a repair shop owned by plaintiff Steve Thomas, which was located adjacent to his residence. On 7 July 1997, Deputy Sheriff David Morton went to plaintiff's home to seize the Hydro-Axe. Deputy Morton first spoke with plaintiff's wife, Saundra, who told him that her husband's lawyer had informed them that the police could not lawfully seize the Hydro-Axe. Mrs. Thomas told Deputy Morton that plaintiff was on his way home and warned him that plaintiff had a violent temper. Deputy Morton called for assistance.

When plaintiff arrived at his shop, he told Deputy Morton that he had performed repair work on the Hydro-Axe, possessed a mechanic's lien on the equipment, and that the officer had no right to seize the Hydro-Axe because removal of it from plaintiff's possession would abolish the lien. When Deputy Morton responded that the order gave him the right to seize the Hydro-Axe regardless of the mechanic's lien, plaintiff moved a tandem dump truck and a track loader next to the Hydro-Axe to prevent the officer from removing it. Plaintiff refused to move the truck and track loader despite Morton's repeated requests. Shortly thereafter, numerous other law enforcement officers arrived and Deputy Morton warned plaintiff that he would arrest him for resisting, delaying and obstructing a police officer if he did not move the equipment that was blocking the Hydro-Axe. When plaintiff did not comply despite at least ten such warnings, Morton arrested him. Plaintiff was patted down and handcuffed; the keys to the truck and track loader were taken from his pockets and were used to move the vehicles away from the Hydro-Axe. Plaintiff was transported to the Anson County sheriff's office, where a magistrate judge issued an arrest warrant charging him with resisting, obstructing and delaying a public officer. After a hearing in district court, however, the charges against plaintiff were dismissed.

Plaintiff's single assignment of error is to the order granting summary judgment in favor of defendants. In ruling on a motion for summary judgment, the court must "view the pleadings, affidavits and discovery materials available in the light most favorable to the non-moving party to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law." Pine Knoll Ass'n, Inc. v. Cardon, 126 N.C.App. 155, 158, 484 S.E.2d 446, 448, disc. review denied, 347 N.C. 138, 492 S.E.2d 26 (1997); N.C.R. Civ. P. 56 (2000).

I.

Plaintiff asserted claims against Deputy Morton both individually and in his official capacity. "In order to hold an officer personally liable in his individual capacity, a plaintiff must make a prima facie showing that the officer's conduct is malicious, corrupt, or outside the scope of his official authority." McCarn v. Beach, 128 N.C.App. 435, 437, 496 S.E.2d 402, 404, disc. review denied, 348 N.C. 73, 505 S.E.2d 874 (1998). Plaintiff contends Deputy Morton is liable individually because he acted with malice when he arrested plaintiff for resisting, obstructing and delaying a public officer in the performance of his duties.

"A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another." Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). In this case, Deputy Morton testified by affidavit that he acted in good faith and without malice; there is no contrary evidence in the record before us which would sustain a finding that Morton acted in a manner which he should have known would be contrary to his duty or that he intended to prejudice or injure plaintiff. Both plaintiff and Deputy Morton testified that plaintiff effectively prevented the officers from removing the Hydro-Axe, and that Deputy Morton repeatedly urged plaintiff to remove the obstacles, warning him at least ten times that he would be arrested if he did not comply.

Moreover, "officers cannot be deemed to act maliciously when they enforce a court order that is valid on its face. They are not expected to go behind the face of the order." Jacobs v. Sherard, 36 N.C.App. 60, 65, 243 S.E.2d 184, 188, disc. review denied, 295 N.C. 466, 246 S.E.2d 12 (1978). Officer Morton's attempt to execute the order of seizure in claim and delivery, therefore, cannot in itself be deemed malicious. Even when the evidence is viewed in the light most favorable to plaintiff, plaintiff has not shown any genuine issue of material fact as to his claims against Deputy Morton in his individual capacity and defendants' motion for summary judgment as to those claims was properly granted.

II.

Plaintiff also asserted claims against Deputy Morton and Sheriff Sellers in their official capacities and against Fidelity Deposit Company as surety. The general rule is that suits against public officials are barred by the doctrine of governmental immunity where the official is performing a governmental function, such as providing police services. Messick v. Catawba County, 110 N.C.App. 707, 431 S.E.2d 489, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). However, G.S. § 58-76-5 provides that a sheriff and his officers can be sued in their official capacities.

Every person injured by the neglect, misconduct, or misbehavior in office of any... sheriff, ... or other officer, may institute a suit or suits against said officer or any of them and their sureties upon their respective bonds for the due performance of their duties in office in the name of the State, without any assignment thereof....

N.C. Gen.Stat. § 58-76-5. This statute removes the sheriff and officer "from the protective embrace of governmental immunity" where, as here, the surety is added as a party to the action. Messick, 110 N.C.App. at 715,431 S.E.2d at 494. Thus, we must determine whether a genuine issue of material fact exists with regard to plaintiff's tort claims against d...