An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1440


Filed: 7 October 2003


v .                         Forsyth County
                            No. 01 CVS 9133

    Appeal by plaintiffs from judgment entered 30 July 2002 by Judge Judson D. DeRamus, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 26 August 2003.

    Biesecker, Tripp, Sink, & Fritts, L.L.P., by Joe E. Biesecker, for plaintiffs-appellants.

    Womble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan, Jr., for defendants-appellants Forsyth County, Forsyth County Department of Social Services, Sonny Thomas, Roxanne Littlejohn, and Susan Kern.

    CALABRIA, Judge.

    David H. Wagner (“Mr. Wagner”) and his wife, Evelyn C. Wagner (“Mrs. Wagner”) (collectively “plaintiffs”), appeal the granting of a summary judgment motion brought by Forsyth County, Forsyth CountyDepartment of Social Services (“DSS”), Sonny Thomas (“Thomas”), Roxanne Littlejohn (“Littlejohn”) and Susan Kern (“Kern”) on their claims arising out of an arrest and prosecution for first-degree trespass. The claims against WRH Mortgage, Inc. (“WRH”) and all remaining defendants were disposed of and are not presently before this Court. We find no error and affirm.
    Plaintiffs owned and operated a corporation named Azalea Garden Board and Care, Inc. (“Azalea Garden”), which owned, operated, and managed the Brookside of Winston-Salem Rest Home (the “Rest Home”), an adult care facility. When Azalea Garden filed for Chapter 11 bankruptcy, ownership of the Rest Home passed to WRH. An agent of WRH instructed Mr. Wagner to vacate the Rest Home. Plaintiffs believed their license to operate the Rest Home entitled them to remain. Despite warnings that WRH would take steps to have plaintiffs arrested if they continued to remain on the property, they refused to leave.
    On 10 July 2000, the Adult Placement Unit of DSS learned WRH planned on assuming control of the Rest Home. Fearing that some or all of the staff might leave, causing the residents to be without food or medications, DSS sent all available personnel to the Rest Home, including Thomas, Kern, and Littlejohn (collectively the “social workers”). Agents of WRH returned to the Rest Home and again asked plaintiffs to vacate the premises. Plaintiffs refused, contending they were entitled to stay in legal possession until a court ordered them to leave.    Law enforcement officers arrived at the Rest Home and informed plaintiffs that agents of WRH were seeking a warrant from the magistrate's office to remove them from the premises. Plaintiffs were invited to accompany them but refused. Most of the social workers who arrived at the Rest Home issued instructions to the Rest Home staff and procured residents' files. Only one social worker, Littlejohn, went to the magistrate's office. Subsequently, law enforcement officers arrested plaintiffs, removed them from the property, and prohibited them from returning without a court order allowing them to return.
    In their complaint, plaintiffs accused the social workers of assisting WRH in the transfer of control of the Rest Home and of assisting, causing and initiating criminal proceedings against the plaintiffs for first-degree trespass. Plaintiffs' claims for relief included false arrest, false imprisonment, malicious prosecution, abuse of process, conversion, violation of civil rights, and intentional and negligent infliction of emotional distress. Plaintiffs also sought punitive damages from the social workers in their individual capacities.
    DSS, Forsyth County, and the social workers (collectively “defendants”) answered, averring plaintiffs' claims were barred by a number of defenses, including inter alia, sovereign and governmental immunity and public officer's immunity. Subsequently, defendants moved for summary judgment. In affidavits supporting this motion, the social workers stated their “sole purpose in going out to [the Rest Home] on July 10, 2000 was to make sure that theresidents continued to be cared for, and that there was no interruption in service to the residents.” Each social worker expressly denied plaintiffs' allegations and affirmatively stated that all actions performed on 10 July 2000 were undertaken in their capacity as representatives of Forsyth County Director of Social Services pursuant to N.C. Gen. Stat. § 108A-14(b) (2001). Additionally, each social worker stated that the actions were undertaken in good faith, without malice or corruption, and were fair, impartial, and in accordance with the applicable laws and regulations. The trial court granted defendants' motion for summary judgment, and plaintiffs appeal.
    Summary judgment is appropriate when the forecasted evidence “reveals no genuine issue as to any material fact, and when the moving party is entitled to a judgment as a matter of law.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). “[A] genuine issue is one which can be maintained by substantial evidence.” Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). “The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of her claim.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). “'[W]hen a movant makes out a convincing showing that genuine issues of fact are lacking, [it is] require[d] that the adversary adequately demonstrate byreceivable facts that a real, not formal, controversy exists, and [that is not accomplished] by mere denial or holding back evidence.'” Patrick v. Hurdle, 16 N.C. App. 28, 36, 190 S.E.2d 871, 876-77 (1972) (quoting Bruce Construction Corp. v. United States, 242 F.2d 873, 875 (5th Cir. 1957)).
    North Carolina General Statute § 108A-1 (2001) mandates the creation of “a board of social services or a consolidated human services board created pursuant to G.S. 153A-77(b)” to establish “county policies for the programs established by [the Social Services Chapter of the North Carolina General Statutes] . . . .” Each county's board of social services must “appoint a director . . . .” N.C. Gen. Stat. § 108A-12 (2001). The county director of social services is charged with the duty to “supervise adult care homes under the rules and regulations of the Social Services Commission[.]” N.C. Gen. Stat. § 108A-14(a)(8) (2001). In turn, this director “may delegate to one or more members of his staff the authority to act as his representative.” N.C. Gen. Stat. § 108A- 14(b) (2001).
I. Individual Liability
    The county director of Social Services is a public official with a substantial amount of discretionary authority. Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 236 (1990). “Duties of a public officer . . . are classified as either discretionary or ministerial.” Id. “Discretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are 'absolute, certain, and imperative,involving merely the execution of a specific duty arising from fixed and designated facts.'” Id. (quoting Jensen v. S.C. Dept. of Social Services, 297 S.C. 323, 377 S.E.2d 102 (1988)). Supervising adult care homes involves determining the appropriate response to a myriad of circumstances and problems, not the administration of specific duties applicable to all adult care homes under fixed and designated facts. Accordingly, the social workers' duty to supervise adult care homes on behalf of the county director pursuant to N.C. Gen. Stat. § 108A-14(b) is discretionary in nature, and the social workers are entitled to the protections and immunities extended to public officials exercising judgment and discretion.
        It is settled law in this jurisdiction that a public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto. The rule in such cases is that an official may not be held liable unless it be alleged and proved that his act, or failure to act, was corrupt or malicious (cites omitted), or that he acted outside of and beyond the scope of his duties.

Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952). Accordingly, since plaintiffs do not argue defendants' actions were corrupt, we examine whether the social workers' conduct was malicious or outside the scope of their duties.
A. Negligence
1. Scope of Duties
    Plaintiffs assert the social workers acted outside the scope of their duties at the Rest Home on 10 July 2000. The affidavitsof the social workers in support of the summary judgment motion expressly state their intent in going to the Rest Home was to insure proper care for the residents and to prevent an interruption of services.
    Plaintiffs' deposition testimony fails to contradict that the social workers were engaged in activities contrary to their statutory mandate. Mr. Wagner stated in his deposition that Littlejohn told him they were present because they were “concerned about the safety and well-being of the residents.” While Mr. Wagner personally observed DSS workers taking notes, inspecting resident files, going into the medicine room, giving instructions to the staff on hand, and dealing with residents, this testimony fails to show the social workers were doing anything other than their normal duties. Indeed, in characterizing the social workers' actions on 10 July 2000, Mr. Wagner candidly admitted “they were doing what I see them do every time I saw them in the building. Previous times, that time and _ I mean, they were going about doing what they would normally do if they come (sic) into the facility.” Moreover, Mrs. Wagner stated in her deposition that, other than “pleasantries,” DSS personnel “basically didn't say anything. They just stood there.” She further conceded she was in a separate location and did not have personal knowledge of the actions of the social workers in the Rest Home.
    Plaintiffs also allege the social workers failed to properly discharge their duties because WRH did not have a license and, if plaintiffs were removed from possession of the property, theoperation of the Rest Home would be in violation of N.C. Gen. Stat. § 131D-2(b)(2) (2001) (making it a Class 3 misdemeanor to operate a facility subject to licensure without a license). The error in plaintiffs' argument is manifest: plaintiffs' removal was wholly unrelated to the social workers' performance of their duties. Plaintiffs were removed because a magistrate, based on the representations of an agent of WRH, issued an arrest warrant for trespass. Regardless of whether WRH's operation of the Rest Home violated the applicable rules and regulations, plaintiffs still would have been removed from the property by law enforcement officers pursuant to the arrest warrant. The duty of the social workers to supervise adult care home facilities under the applicable rules and regulations encompasses neither reconciling provisions of adult care home facility licensure with criminal trespass nor determining the propriety of an arrest warrant issued by a neutral and detached magistrate. Plaintiffs' argument to the contrary is without merit.
2. Malicious Conduct
    Plaintiffs also assert summary judgment was inappropriate because there were genuine issues of material fact as to whether the social workers' actions were malicious. Specifically, plaintiffs assert malice can be inferred from the absence of probable cause to support the prosecution of plaintiffs for trespass or the social workers' participation in a prosecution for a purpose other than bringing plaintiffs to justice. Plaintiffsfurther assert a conspiracy existed to have plaintiffs removed from the Rest Home.
            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. “An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.”

In re Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890-91 (1984) (quoting Givens v. Sellars, 273 N.C. 44, 50, 159 S.E.2d 530, 535 (1968)). Here, the undisputed evidence shows the social workers independently arrived at the Rest Home on 10 July 2000. While present, they instructed the staff on hand, interacted with residents, and otherwise inspected the premises and insured the residents' care was not compromised. These actions comport with their statutory duties.
    Plaintiffs make much of the fact that Littlejohn went to the magistrate's office. However, the uncontradicted evidence shows she did not speak with the magistrate who issued the arrest warrants. Moreover, plaintiffs' argument concerning any involvement in a criminal prosecution against plaintiffs is impossible to reconcile with the facts presented in the case at bar. No social worker was listed as a complaining witness on the arrest warrant, nor was any social worker involved in charging or prosecuting plaintiffs.
    Plaintiffs' argument, in essence, is that Littlejohn was required to defend plaintiffs' right to remain at the Rest Home because they were license holders. As previously stated, it doesnot fall within the purview of DSS' duties to resolve complex legal issues concerning criminal trespass or reconcile those laws with promulgated licensure standards. The record reveals no evidence that any of the social workers acted contrary to their duty. While plaintiffs' pleadings are to be viewed indulgently at the summary judgment stage, plaintiffs, in the face of contrary evidence tending to establish defendants are entitled to judgment as a matter of law, “may not rest upon the mere allegations . . . of [their] pleadings . . . .” Enterprises v. Russell, 34 N.C. App. 275, 278, 237 S.E.2d 859, 861 (1977). As stated before, a genuine issue is one supported by substantial evidence. Kessing, 278 N.C. 523, 535, 180 S.E.2d 823, 830 (1971). Accordingly, we hold summary judgment was properly granted to the social workers concerning personal liability.
B. Intentional Torts
    Plaintiffs assert the social workers are individually liable for the commission of intentional torts connected with their actions on and subsequent to 10 July 2000. Plaintiffs' intentional tort claims and civil rights claim were premised on the social workers' alleged participation in plaintiffs' arrest, imprisonment, and prosecution. The social workers were not complaining witnesses on the arrest warrant, did not participate in the hearing before the magistrate, and did not participate in, initiate, or contribute to the initiation of proceedings against plaintiffs. The social workers, by David Wagner's admission, were engaged in acts usually performed by DSS at the Rest Home, and the social workers'activities comported with the scope of their duties. Plaintiffs' claims are premised on the erroneous assertion that the social workers had some duty to inform the magistrate of plaintiffs' license and thereby defend plaintiffs' belief that they were entitled to remain in possession. For reasons already given, this argument fails.
    Plaintiffs also assert claims against the social workers based on intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are: '(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress.'” Denning-Boyles v. WCES, Inc., 123 N.C. App. 409, 412, 473 S.E.2d 38, 40-41 (1996) (quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 487-88, 340 S.E.2d 116, 119 (1986)). “Conduct is extreme and outrageous when it '“exceeds all bounds usually tolerated by a decent society.”'” Shreve v. Duke Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987) (citations omitted). “The determination of what is extreme and outrageous conduct is a question of law for the court.” Murray v. Justice, 96 N.C. App. 169, 175, 385 S.E.2d 195, 200 (1989). The record reveals the social workers were present at the Rest Home on 10 July 2000 and engaged in supervisory activities to prevent a cessation of services to the residents. None of the actions by the social workers could be characterized as exceeding all bounds usually tolerated by a decent society.
    Finally, plaintiffs assert claims against the social workers for conversion. Conversion is “'an unauthorized assumption andexercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.'” Peed v. Burleson's, Inc., 244 N.C. 437, 439, 94 S.E.2d 351, 353 (1956) (quoting 89 C.J.S., Trover & Conversion § 1). Plaintiffs maintain this cause of action against the social workers is warranted because the social workers “contributed to the conversion of plaintiffs' property by assisting . . . in the takeover of [the Rest Home]” and that the social workers “were obligated to prohibit WRH . . . from taking control of [the Rest Home].” Plaintiffs again fail to recognize the scope of the duty imposed on the social workers in the supervision of adult care homes, and this argument is without merit. Accordingly, there is no genuine issue of material fact concerning plaintiffs' intentional tort and civil rights claims, and the trial court properly granted summary judgment to the social workers for these claims. II. Official capacity     Plaintiffs also assert claims against the social workers for their official acts. Where claims are brought against an official for her official acts, there is a rebuttable presumption that the official discharged his duties in good faith. Dobson v. Harris, 352 N.C. 77, 84, 530 S.E.2d 829, 836 (2000). Where a movant for summary judgment is “endowed with the presumption of good faith . . . benefiting public officials . . . , sufficient evidence must be introduced by the opposing party to allow reasonable minds to conclude that the privileged party acted in bad faith or . . . withmalice.” Id. (citations omitted); see also N.C. Gen. Stat. § 8C-1, Rule 301 (2001). “'Every reasonable intendment will be made in support of the presumption[.]'” Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961) (quoting 31 C.J.S. Evidence § 146). “'[T]he burden is upon the party asserting the contrary to overcome the presumption by competent and substantial evidence[.]'” Styers v. Phillips, 277 N.C. 460, 473, 178 S.E.2d 583, 591 (1971) (quoting 6 N.C. Index 2d Public Officers § 8 (1968)).
    Plaintiffs rely on the same general allegations in their suit against the social workers in their official capacities as they assert against them in their individual capacities. Summary judgment is “most appropriate where plaintiff[s], who, assuming the burden of production to negate defendant[s]' presumption of good faith . . . , set[] forth no specific fact showing an issue as to defendant[s]' motive, but rest[] upon bare allegation and suspicion.” Dobson, 352 N.C. at 87, 530 S.E.2d at 837. Accordingly, we hold the trial court correctly granted summary judgment for the social workers in their official capacity. III. Forsyth County
    Plaintiffs' remaining claims, asserted on the principle of respondeat superior, rest on the presumption that the social workers engaged in wrongful conduct. Having held that there is no genuine issue of material fact concerning the propriety of the social workers' performance of their duties, plaintiffs' claims based upon respondeat superior must also fail. We have carefully considered the remaining claims asserted by plaintiffs and findthem to be without merit. The judgment of the trial court is affirmed.
    Affirmed. Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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