An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-358


Filed: 20 January 2004


v .                         Mecklenburg County
                            No. 01 CVD 6496
DILLARD'S, INC., formerly
Dillard Department Stores,
Inc., a North Carolina

    Appeal by plaintiff from judgment entered 29 July 2002 by Judge Nancy B. Norelli in Mecklenburg County District Court. Heard in the Court of Appeals 3 December 2003.

    David Q. Burgess, for plaintiff-appellant.

    Poyner & Spruill, L.L.P., by David W. Long and Joseph E. Zeszotarski, Jr., for defendant-appellee.

    CALABRIA, Judge.

    This appeal arises from the trial court's entry of summary judgment for Dillard's, Inc. (“defendant”) against Bernard Scarborough (“plaintiff”) on his claim for damages based on malicious prosecution. We reverse.
    On the evening of 27 October 1997, plaintiff was working in the ladies shoe department of defendant's store, where he had been employed on a part-time basis for over two years. Plaintiff was employed full-time at First Union National Bank for five years. As plaintiff prepared to close the department for the evening, he realized one of his sales transactions was missing and calledSteven Gainsboro (“Gainsboro”), the assistant sales manager. Plaintiff explained to Gainsboro that he had made a mistake. Although Gainsboro said he could understand how a mistake like that could happen, he decided to turn the problem over to loss prevention.
    It is uncontested that plaintiff began a transaction for the sale of ladies shoes to a customer but voided the transaction prior to its completion. It is likewise uncontested that the customer spent a great deal of time trying on shoes and then walked out of the store with two pairs of shoes without paying for them because the transaction was never completed. Whether this occurred because the customer wanted to see additional shoes and plaintiff mistakenly allowed the customer to leave under the impression that the transaction had been appropriately consummated or because plaintiff colluded with the customer to allow her to leave the store without paying for the merchandise was the issue ultimately resulting in the State's criminal prosecution of plaintiff for embezzlement.
    On the following day, 28 October 1997, plaintiff called David Hicklin (“Hicklin”), defendant's sales manager, to inform him of the failed transaction. Hicklin reviewed the sales receipts. Thereafter, Hicklin and Kevin McClusky (“McClusky”), defendant's store manager, agreed further investigation was necessary. Later that day, a woman called and reported that she had not gotten a receipt for her two pairs of shoes. She described the shoes and plaintiff. Although she gave her name and phone number to Hicklin,rather than handling the matter personally Hicklin “got Officer Ken [Schul] involved.” Ken Schul (“Schul”) was employed as a sergeant with the Charlotte-Mecklenburg Police Department as well as a part- time security officer with defendant. Schul, in turn, informed S.C. Wright (“Wright”), also dually employed by the Charlotte- Mecklenburg Police Department and defendant, of the investigation of plaintiff's failed transaction.
    When plaintiff returned to work on the evening following the incident, he consented to an interview with McClusky, Wright, and Hicklin. The interview was conducted primarily by Wright in the break room area of defendant's store. At approximately 8:11 P.M., Wright completed questioning plaintiff concerning the failed transaction and took plaintiff's statement in writing, which plaintiff signed and Hicklin witnessed. During the interview, plaintiff took responsibility for his mistake and explained to them that he was willing to pay defendant the price of the shoes to compensate defendant for the loss incurred. Nonetheless, McCluskey threatened to fire plaintiff from his part-time job, to have him fired from his job at First Union National Bank, and to charge him with the crime of embezzlement if he refused to tell him the names of the customers involved in the transaction. Since plaintiff claimed he did not know the women, he was terminated at the end of the meeting.
    Schul submitted an affidavit indicating he was assigned plaintiff's case and presented his affidavit to the Assistant District Attorney in Mecklenburg County in his capacity as anofficer for the Charlotte-Mecklenburg Police Department. The Assistant District Attorney authorized the prosecution of plaintiff for embezzlement. Defendant was tried and acquitted by a jury. On 4 April 2001, plaintiff filed suit against defendant for malicious prosecution. On 5 June 2002, defendant moved for summary judgment, which the trial court granted on 29 July 2002. Plaintiff appeals.
    Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003).
        A defendant moving for summary judgment bears the burden of showing either that (1) an essential element of the plaintiff's claim is nonexistent; (2) the plaintiff is unable to produce evidence that supports an essential element of [his] claim; or, (3) the plaintiff cannot overcome affirmative defenses raised in contravention of [his] claims.

Glenn-Robinson v. Acker, 140 N.C. App. 606, 611, 538 S.E.2d 601, 607 (2000). “In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, taking the non-movant's asserted facts as true, and drawing all reasonable inferences in [his] favor.” Id.
    With these principles in mind, we turn to defendant's motion for summary judgment on plaintiff's claim for malicious prosecution. The elements of malicious prosecution are as follows: “(1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for theinitiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.” Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994). Neither side disputes that the criminal prosecution of plaintiff terminated in his favor. Accordingly, we examine whether there are genuine issues of material fact concerning the first three elements of this claim which would preclude the trial court from granting summary judgment.
    Defendant first contends summary judgment was properly rendered by the trial court because there were no genuine issues of material fact concerning whether defendant initiated the proceedings against plaintiff. Specifically, defendant contends the evidence shows defendant made an employee, who was also a police officer, aware of plaintiff's conduct during the course of an in-house investigation but did not initiate or have initiated criminal proceedings against plaintiff. The initiation of the earlier proceeding has been held to encompass instituting, procuring, or participating in a criminal prosecution. Cook v. Lanier, 267 N.C. 166, 169, 147 S.E.2d 910, 913 (1966). While the “act of giving honest assistance and information to prosecuting authorities does not render one liable for malicious prosecution[,]” see Williams v. Kuppenheimer Manufacturing Co., 105 N.C. App. 198, 201, 412 S.E.2d 897, 900 (1992) (citing Shillington v. K-Mart Corp., 102 N.C. App. 187, 402 S.E.2d 155 (1991)), where “it is unlikely there would have been a criminal prosecution of [a] plaintiff” except for the efforts of a defendant, we have held thefirst element of the charge is a factual matter for the jury. Id. Looking at the evidence in the light most favorable to the nonmovant, plaintiff has met his burden with respect to this element.
    Both police officers involved in the investigation of plaintiff's case were employees of defendant. In his capacity as an employee of defendant, Wright questioned plaintiff at defendant's place of business in the presence of defendant's store manager and sales manager. During that interview, there is evidence that McCluskey threatened to have a criminal prosecution for embezzlement brought against plaintiff. Moreover, it is undisputed that Hicklin “got Officer Ken [Schul] involved” in the investigation prior to his assignment on the case or presentation of the case to the Assistant District Attorney. While defendant asserts it is undisputed that Schul instituted a criminal investigation resulting in the criminal charge against plaintiff “of his own accord and in his capacity as a Charlotte-Mecklenburg police officer,” Hicklin's testimony clearly supports the proposition that Schul initially became involved at defendant's request and not of his own accord. We find the question of how Schul initially became involved to be more relevant to a determination of whether defendant initiated plaintiff's prosecution than the question of Schul's subsequent capacity in investigating the case. Finally, nothing in the record shows independent involvement by law enforcement in investigating or procuring evidence used in support of the criminal charges broughtagainst defendant. Taken in the light most favorable to plaintiff, the evidence is sufficient under our holding in Kuppenheimer to raise genuine issues of material fact as to whether there would have been a criminal prosecution of plaintiff except for the efforts of defendant.
    The next element of a claim of malicious prosecution we consider is that the defendant lacked probable cause at the time he initiated the earlier proceeding. Probable cause, for purposes of malicious prosecution claims, has been defined as “'the existence of such facts and circumstances, known to him at the time, as would induce a reasonable man to commence a prosecution.'” Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966) (quoting Morgan v. Stewart, 144 N.C. 424, 430, 57 S.E. 149, 151 (1907)). “Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court.” Best, 337 N.C. at 750, 448 S.E.2d at 510. The record clearly indicates factual questions remain concerning the lack of probable cause at the time the prosecution was initiated.
    As to the nonexistence of probable cause, our Supreme Court has stated
        “[e]vidence that the chief aim of the prosecution was to accomplish some collateral purpose, or to forward some private interest, . . . is admissible, both to show the absence of probable cause and to create an inference of malice, and such evidence is sufficient to establish a prima facie want of probable cause.”
Cook, 267 N.C. at 170, 147 S.E.2d at 914 (quoting Dickerson v. Refining Co., 201 N.C. 90, 95, 159 S.E. 446, 449 (1931)). Plaintiff stated in his affidavit that defendant threatened to “charge [him] with the crime of embezzlement, if [he] did not tell him the names of the women that had taken the shoes.” If established, such motivation would constitute, as a collateral purpose, evidence to show the absence of probable cause. However, we also note from the record that some evidence tended to show prima facie the existence of probable cause. This evidence includes an indictment by the grand jury and the trial court's denial of plaintiff's motion to dismiss the embezzlement charge at the close of the State's evidence and again at the close of all the evidence.
    “Of course, a prima facie showing does not necessarily mean that the plaintiff is entitled to recover. It is sufficient to carry the case to the jury, and it is for the jury to say whether or not the crucial and necessary facts have been established.” Cook, 267 N.C. at 171, 147 S.E.2d at 914 (citations omitted). Viewing the evidence in the light most favorable to plaintiff, genuine issues remain concerning whether defendant possessed probable cause at the time of initiating the prosecution; therefore, this matter is best left for resolution by a jury.
    Finally, regarding the malice element of this claim, it is unquestioned that “legal malice may be inferred from a lack of probable cause.” Williams, 105 N.C. App. at 203, 412 S.E.2d at 901; Shillington v. K-Mart Corp., 102 N.C. App. 187, 197, 402S.E.2d 155, 161 (1991). It would be premature, in light of the foregoing discussion, to grant summary judgment based upon this element. Because genuine issues of material fact remain, we hold the trial court improperly granted defendant's motion for summary judgment.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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