Carson v. Moody

LEWIS, Judge. Plaintiff contends that the trial court erred in granting summary judgment in favor of defendants. Plaintiff has alleged three causes of action (1) malicious prosecution, (2) abuse of process and (3) violation of the plaintiffs constitutional rights as protected under 42 U.S.C. § 1.983. I. Malicious Prosecution In order for the plaintiff to succeed in an action for malicious prosecution, the plaintiff must show: 1. The defendant initiated the earlier proceeding against the plaintiff; 2. The defendant acted maliciously; — 728 — 3. There was no probable cause to initiate the prior proceeding; and 4. The proceeding ended in plaintiff’s favor. Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). Having established the first element, plaintiff must show that defendants acted with either “legal” or “constructive” malice. Malice is found when one acts with reckless disregard of the rights of others in instituting prosecution without probable cause. Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966). Proof that the prosecution was instituted to accomplish some collateral purpose, or to forward some private interest can show the absence of probable cause and it creates an inference of malice. Dickerson v. Atlantic Refining Co., 201 N.C. 90, 95, 159 S.E. 446, 449 (1931). In the present case, the evidence in the light most favorable to the plaintiff tends to show that defendants Moody and Berry had a collateral purpose in obtaining an arrest warrant for plaintiff. In his deposition, Moody admitted that he “tried to recover the tractor the best way [he] knew how.” Moody also stated that he asked plaintiff to release the tractor “and he was later arrested for it for refusing to do so.” Moody also admitted that he did not know if plaintiff still had possession of the tractor or exactly where the tractor was located at the time of plaintiff’s arrest. Plaintiff’s evidence tends to show that Moody and Berry’s motive in arresting plaintiff was to exert pressure on Carson to secure possession of the tractor. Evidence that the chief aim of the prosecution was to accomplish some collateral purpose, or to forward some private interest, i.e., to obtain possession of property, or to enforce collection of a debt and the like, 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. . . . Id. We find that plaintiff has shown that material issues of fact exist as to whether the proceeding was instituted for a malicious purpose and lacked probable cause. Plaintiff must also show that the prior proceedings were terminated favorably “to the plaintiff.” Stanback v. Stanback, 297 N.C. 181, 203, 254 S.E.2d 611, 626 (1979). “The requirement that — 729 — the former proceeding has been terminated favorably to the Plaintiff in a malicious prosecution action is satisfied in many instances by a disposition of the proceeding prior to consideration of the merits.” Id. In the present case, both proceedings instituted against the plaintiff were dismissed. We find that for purposes of withstanding summary judgment, plaintiff has sufficiently demonstrated that the proceedings against him were terminated in his favor. The trial court improperly entered summary judgment in favor of defendants Moody and Berry on the claim for malicious prosecution. Defendant Nelson had nothing to do with obtaining the warrants against plaintiff. Therefore, summary judgment on this issue in favor of defendant Nelson was proper. II. Abuse Of Process In order to establish a cause of action for abuse of process, the plaintiff must show (1) the issuance of valid process; (2) which was willfully misapplied or misused by the defendant; (3) for some purpose other than for which the process was designed and motivated by bad intent or ulterior motive. Stanback, supra, at 200, 254 S.E.2d 624. Having met the first element, we hold that material issues of fact exist as to whether defendants Moody and Berry misused the summons for an ulterior motive. Plaintiff’s testimony shows that defendants stated that they either wanted the money or the tractor. No effort was made by either defendant Moody or Berry to ascertain whether Carson in fact had possession of the tractor at the time the arrests were made. No search warrant was obtained and the premises were never searched. Moody also admits that he used the summons as secondary leverage to recover the tractor. Neither Moody nor Berry attempted to fully determine whether the tractor had in fact been on consignment as plaintiff had told them or whether it had been stolen. Use of process to obtain payment of a civil claim meets the second prong of the test. Id. at 201, 1 Am. Jur. 2d, Abuse of Process § 15. We find that summary judgment as to this issue was improper as to defendants Moody and Berry; proper as to defendant Nelson for the reasons stated in I. above. III. Civil Conspiracy Finally, plaintiff has alleged a third cause of action for civil conspiracy in violation of 42 U.S.C. § 1983. — 730 — A civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principal element of which is an agreement ... ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damage.’ Hampton v. Hanrahan, 600 F.2d 600, 620 (Seventh Cir. 1979). We find that the plaintiff has failed to show that defendants Moody, Berry and Nelson had a “meeting of the minds” and thus reached an understanding to achieve the conspiracy’s objectives, that is, to inflict injury upon him. Summary judgment as to this claim was proper as to all three defendants. IV. Conclusion We reverse the entry of summary judgment in favor of defendants Moody and Berry as to plaintiff’s claims for malicious prosecution and abuse of process. We affirm the entry of summary judgment as to all claims in favor of defendant Nelson. We affirm entry of summary judgment in favor of all defendants as to plaintiff’s claim for civil conspiracy pursuant to 42 U.S.C. § 1983. Affirmed in part, reversed in ■ part and remanded. Judges WELLS and EAGLES concur.