{ "id": 11914042, "name": "JAMES Y. MOORE, trading and doing business as MOORE'S DINETTE, and GRACYE MOORE, Plaintiffs-Appellants v. CITY OF CREEDMOOR, RALPH D. SEAGROVES, Individually and as CHIEF OF POLICE of the CITY OF CREEDMOOR, and VANCE DOUGLAS HIGH, Individually and as a COMMISSIONER OF THE CITY OF CREEDMOOR, Defendants-Appellees", "name_abbreviation": "Moore v. City of Creedmoor", "decision_date": "1995-09-05", "docket_number": "No. 939SC1073", "first_page": "27", "last_page": "53", "citations": [ { "type": "official", "cite": "120 N.C. App. 27" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "105 L. Ed. 2d 721", "category": "reporters:federal", "reporter": "L. 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Ed. 183", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1952, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "342 U.S. 165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 640823 ], "year": 1952, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/us/342/0165-01" ] }, { "cite": "368 U.S. 448", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173353 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "456", "parenthetical": "conscious exercise of some selectivity in enforcement is not necessarily a federal constitutional violation" }, { "page": "453", "parenthetical": "conscious exercise of some selectivity in enforcement is not necessarily a federal constitutional violation" } ], "opinion_index": 0, "case_paths": [ "/us/368/0448-01" ] }, { "cite": "118 U.S. 356", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3519298 ], "weight": 2, "year": 1886, "pin_cites": [ { "page": "373-74" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/us/118/0356-01" ] }, { "cite": "341 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703139, 4699043, 4696042, 4703660, 4704724 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0198-01", "/nc/316/0198-05", "/nc/316/0198-04", "/nc/316/0198-03", "/nc/316/0198-02" ] }, { "cite": "337 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "601-02" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520802 ], "year": 1985, "pin_cites": [ { "page": "266-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0262-01" ] }, { "cite": "386 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "745", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523475 ], "year": 1989, "pin_cites": [ { "page": "550", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0545-01" ] }, { "cite": "358 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "374" }, { "page": "376", "parenthetical": "\"The party who alleges selective enforcement of an ordinance has the burden of showing that the ordinance has been administered 'with an evil eye and an unequal hand.' \"" }, { "page": "376", "parenthetical": "\"Mere laxity in enforcement does not satisfy the elements of a claim of selective or discriminatory enforcement in violation of the equal protection clause.\"" } ], "opinion_index": 0 }, { "cite": "320 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727847 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "442-43" }, { "page": "445" }, { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0439-01" ] }, { "cite": "909 F.2d 1203", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10541177 ], "year": 1990, "pin_cites": [ { "page": "1206", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/909/1203-01" ] }, { "cite": "307 U.S. 496", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6140933 ], "weight": 2, "year": 1939, "pin_cites": [ { "page": "513" }, { "page": "1435" } ], "opinion_index": 0, "case_paths": [ "/us/307/0496-01" ] }, { "cite": "421 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505409, 2504968, 2504747, 2505141, 2504699 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0345-01", "/nc/332/0345-02", "/nc/332/0345-05", "/nc/332/0345-04", "/nc/332/0345-03" ] }, { "cite": "418 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314074 ], "weight": 3, "pin_cites": [ { "page": "513" }, { "page": "506" }, { "page": "506-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0496-01" ] }, { "cite": "61 U.S.L.W. 3370", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1992, "opinion_index": 0 }, { "cite": "61 U.S.L.W. 3369", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1992, "opinion_index": 0 }, { "cite": "61 U.S.L.W. 3287", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1992, "opinion_index": 0 }, { "cite": "121 L. Ed. 2d 431", "category": "reporters:federal", "reporter": "L. 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App.", "case_ids": [ 8526680 ], "year": 1984, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0067-01" ] }, { "cite": "19 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "853", "parenthetical": "\"[A] suit for malicious prosecution will lie where the plaintiffs property or business has been interfered with by . . . the granting of an injunction ....\"" } ], "opinion_index": 0 }, { "cite": "221 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626958 ], "year": 1942, "pin_cites": [ { "page": "196", "parenthetical": "\"[A] suit for malicious prosecution will lie where the plaintiffs property or business has been interfered with by . . . the granting of an injunction ....\"" } ], "opinion_index": 0, "case_paths": [ "/nc/221/0189-01" ] }, { "cite": "327 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720365 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0321-01" ] }, { "cite": "317 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526226 ], "year": 1984, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0315-01" ] }, { "cite": "452 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517250, 2517389 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0525-02", "/nc/338/0525-01" ] }, { "cite": "448 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552093 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0742-01" ] }, { "cite": "436 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "399", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522649 ], "year": 1993, "pin_cites": [ { "page": "552", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0548-01" ] }, { "cite": "261 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "110" }, { "page": "109", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "299 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573247 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "45" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0042-01" ] }, { "cite": "323 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "312 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757224 ], "year": 1984, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0393-01" ] }, { "cite": "397 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499840 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0490-01" ] }, { "cite": "389 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522999 ], "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0115-01" ] }, { "cite": "352 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "257", "parenthetical": "test for determining absence of probable cause is \"whether a [person] of ordinary prudence and intelligence under the circumstances would have known that the charge had no reasonable foundation\"" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168212 ], "year": 1987, "pin_cites": [ { "page": "254", "parenthetical": "test for determining absence of probable cause is \"whether a [person] of ordinary prudence and intelligence under the circumstances would have known that the charge had no reasonable foundation\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0251-01" ] }, { "cite": "57 S.E. 149", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1907, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "144 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660498 ], "year": 1907, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc/144/0424-01" ] }, { "cite": "249 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "379", "parenthetical": "quoting Morgan v. Stewart, 144 N.C. 424, 430, 57 S.E. 149, 151 (1907)" }, { "page": "379", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564665 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "87", "parenthetical": "quoting Morgan v. Stewart, 144 N.C. 424, 430, 57 S.E. 149, 151 (1907)" }, { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0081-01" ] }, { "cite": "435 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530443, 2532332, 2530396, 2531257, 2532508 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0621-03", "/nc/334/0621-02", "/nc/334/0621-05", "/nc/334/0621-04", "/nc/334/0621-01" ] }, { "cite": "431 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "493" }, { "page": "495", "parenthetical": "\"[B]ased on the facts illustrated by [officers'] testimony, probable cause did exist to arrest [plaintiff]. Because the plaintiff has presented no forecast of evidence to the contrary, summary judgment on the malicious prosecution claim was proper.\"" }, { "page": "493", "parenthetical": "citations omitted" }, { "page": "495" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526342 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "712" }, { "page": "716" }, { "page": "713-14" }, { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0707-01" ] }, { "cite": "456 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790243, 790151, 790219, 790263, 790076 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0115-05", "/nc/340/0115-01", "/nc/340/0115-04", "/nc/340/0115-03", "/nc/340/0115-02" ] }, { "cite": "450 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525119 ], "year": 1994, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0274-01" ] }, { "cite": "374 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561393, 2561378, 2562195, 2562245 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0629-04", "/nc/323/0629-01", "/nc/323/0629-03", "/nc/323/0629-02" ] }, { "cite": "371 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524967 ], "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0171-01" ] }, { "cite": "429 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544835, 2546724, 2549351, 2547688, 2547675 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0539-02", "/nc/333/0539-01", "/nc/333/0539-03", "/nc/333/0539-04", "/nc/333/0539-05" ] }, { "cite": "424 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "157" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524679 ], "year": 1993, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0486-01" ] }, { "cite": "442 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 766", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532771, 2530792, 2526698, 2532434, 2529619 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0766-02", "/nc/335/0766-05", "/nc/335/0766-03", "/nc/335/0766-01", "/nc/335/0766-04" ] }, { "cite": "435 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521379 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "312" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0307-01" ] }, { "cite": "337 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "685", "parenthetical": "third alteration in original" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522873 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0589-01" ] }, { "cite": "412 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1992, "pin_cites": [ { "page": "899", "parenthetical": "citation omitted" }, { "page": "899", "parenthetical": "citation omitted" }, { "page": "900", "parenthetical": "emphasis added" }, { "page": "899", "parenthetical": "citation omitted" }, { "page": "901" }, { "page": "901", "parenthetical": "alteration in original" }, { "page": "901", "parenthetical": "citation omitted" }, { "page": "901", "parenthetical": "\"legal malice may be inferred from a lack of probable cause\"" }, { "page": "901", "parenthetical": "\"[A] showing of actual malice is only required if plaintiff is seeking punitive damages ...[;] [l]egal malice suffices to support an award of compensatory damages for malicious prosecution.\"" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521997 ], "weight": 8, "year": 1992, "pin_cites": [ { "page": "200", "parenthetical": "citation omitted" }, { "page": "200" }, { "page": "200-01" }, { "page": "200" }, { "page": "202" }, { "page": "202-03" }, { "page": "203" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0198-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "625", "parenthetical": "citations omitted" }, { "page": "625", "parenthetical": "emphasis added" }, { "page": "625", "parenthetical": "citations omitted" }, { "page": "625", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "202-03", "parenthetical": "citations omitted" }, { "page": "203" }, { "page": "203" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "402 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "398 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "333-34", "parenthetical": "citation omitted" }, { "page": "333-34", "parenthetical": "\"[A] claim of malicious prosecution requires proof . . . that there are special damages beyond the ordinary expense and inconvenience of litigation.\"" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527537 ], "year": 1990, "pin_cites": [ { "page": "722", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0718-01" ] }, { "cite": "210 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "291", "parenthetical": "citations omitted" }, { "page": "291", "parenthetical": "citations omitted" }, { "page": "291", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549724 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "206-07", "parenthetical": "citations omitted" }, { "page": "206-07" }, { "page": "206-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0204-01" ] }, { "cite": "317 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "47", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526595 ], "year": 1984, "pin_cites": [ { "page": "537", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0534-01" ] }, { "cite": "345 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773046 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0321-01" ] }, { "cite": "330 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "247", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524742 ], "year": 1985, "pin_cites": [ { "page": "6", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0001-01" ] }, { "cite": "326 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724307 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0098-01" ] }, { "cite": "306 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "149", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526081 ], "year": 1983, "pin_cites": [ { "page": "692", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0689-01" ] }, { "cite": "192 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564520, 8564493, 8564557, 8564467, 8564445 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0304-04", "/nc/282/0304-03", "/nc/282/0304-05", "/nc/282/0304-02", "/nc/282/0304-01" ] }, { "cite": "190 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548463 ], "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0028-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 19-2.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 19-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "69 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "245" } ], "opinion_index": 1 }, { "cite": "235 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622354 ], "year": 1952, "pin_cites": [ { "page": "180-81" } ], "opinion_index": 1, "case_paths": [ "/nc/235/0179-01" ] }, { "cite": "337 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "685", "parenthetical": "action of defendants in procuring earlier civil action filed by third party did not constitute \"initiation\" within meaning of malicious prosecution" } ], "opinion_index": 1 }, { "cite": "78 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522873 ], "year": 1985, "pin_cites": [ { "page": "593", "parenthetical": "action of defendants in procuring earlier civil action filed by third party did not constitute \"initiation\" within meaning of malicious prosecution" } ], "opinion_index": 1, "case_paths": [ "/nc-app/78/0589-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 19-2.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 1 } ], "analysis": { "cardinality": 2014, "char_count": 62533, "ocr_confidence": 0.741, "pagerank": { "raw": 4.530998244008676e-07, "percentile": 0.9239166067210868 }, "sha256": "231dbde15d3251b3ce4cb65cfac33742977fce12bc7e9c3775b842428dfe3859", "simhash": "1:0709d5f8c4fd0456", "word_count": 9676 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD concurs.", "Judge GREENE concurring in part and dissenting in part." ], "parties": [ "JAMES Y. MOORE, trading and doing business as MOORE\u2019S DINETTE, and GRACYE MOORE, Plaintiffs-Appellants v. CITY OF CREEDMOOR, RALPH D. SEAGROVES, Individually and as CHIEF OF POLICE of the CITY OF CREEDMOOR, and VANCE DOUGLAS HIGH, Individually and as a COMMISSIONER OF THE CITY OF CREEDMOOR, Defendants-Appellees" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs James and Gracye Moore (plaintiffs or the Moores) appeal the trial court\u2019s grant of summary judgment in favor of defendants the City of Creedmoor (the City), Police Chief Ralph D. Seagroves (Seagroves or the Chief) and former City Commissioner Vance Douglas High (High or Commissioner High). As discussed herein, we find plaintiffs\u2019 assignments of error regarding their claim of malicious prosecution in the main persuasive, but conclude the remainder cannot be sustained.\nPertinent facts and procedural information include the following: Since 1947, plaintiff James Y. Moore (Moore) has operated a diner known as Moore\u2019s Dinette (the Dinette) in a building located on Lyon Street in Creedmoor, North Carolina. His wife, plaintiff Gracye Moore (Mrs. Moore), is the Dinette\u2019s bookkeeper and cook. During the week, the Dinette functions primarily as an eating establishment patronized predominantly by the black community of Creedmoor. On weekend nights (Friday through Sunday), however, disco-dancing is offered inside the Dinette between the hours of 10:00 p.m. and 1:30 a.m. All applicable ABC licenses for the sale of beer are properly maintained.\nThe City of Creedmoor is governed by a Board of Commissioners (the Board) composed of five Commissioners and headed by the Mayor. The Commission votes on City ordinances and resolutions which, once enacted, represent the official policy of the City. Defendant High was a member of the Board from December 1977 through December 1989, and served as \u201cPolice Commissioner\u201d for a significant portion of that time. Since 17 May 1983, defendant Ralph D. Seagroves has occupied the position of Police Chief. The City\u2019s Police Chief attends all Commission meetings and reports directly to the Board.\nOn 4 November 1982, Moore petitioned the Board to rezone an area adjacent to the Dinette in order to construct a parking lot. Although the local Planning Agency approved the request and recommended it he allowed, the matter ultimately was \u201ctabled\u201d by the Board of Commissioners and thus effectively denied.\nOn 29 December 1982, Moore telephoned for police assistance in quelling a disturbance involving two female customers of the Dinette. However, the two responding officers allegedly merely watched the women fight in the street. Moore subsequently filed an official written grievance, resulting in the reprimand of both officers and suspension of one.\nAlthough the grievance was filed several months before Chief Seagroves assumed his duties, he testified in deposition that he believed the officers should not have been reprimanded. Within a year after his job commenced, Seagroves targeted the Dinette as a \u201cproblem area\u201d because of \u201cthe traffic . . . and the street problem . . . , the fights that you have down there.\u201d During the winter of 1983-1984, he hired Vermadine Clark (Clark), a black female officer from nearby Oxford, to conduct undercover surveillance activities. Clark was instructed by the Chief to collect evidence regarding illegal alcohol and drug sales at the Dinette. However, despite substantial effort on her part, Clark found no evidence of illegal activity taking place at the Dinette; moreover, it was her opinion that the Moores would not tolerate unlawful behavior of any kind in their establishment. It is undisputed that until sometime in 1991, the Moores were unaware Clark had visited the Dinette in the capacity of undercover officer.\nIn February 1986, a .38 Special handgun was stolen from the Dinette during a break-in. Following his initial report of the incident, Moore spoke repeatedly with Seagroves and other officers about the status of his weapon. Although the Creedmoor Police Department (the Department) received notification in or around September 1987 that the gun was recovered in Jacksonville, North Carolina, it was subsequently destroyed by Jacksonville authorities. Because he had persistently sought information about the status of the weapon, Moore attributed this destruction to the willful failure of the Department to seek return of the handgun and to the Department\u2019s desire to leave his business defenseless.\nIn June 1988, a fire was deliberately started at the Dinette and the letters \u201cKKK\u201d painted on the dumpster. Although Moore immediately called the Department, he perceived its response to be intentionally slow. When he conveyed this to Seagroves and demanded an investigation, the Chief replied he already knew the fire had not been started by the Ku Klux Klan. The arson case was never resolved.\nFollowing this series of events, Seagroves instructed his officers to begin making written reports regarding any time spent responding to calls at the Dinette. During late 1988 and early 1989, also upon the Chiefs instructions, police began ticketing automobiles of Dinette patrons for parking violations along Lyon Street.\nAt a 24 January 1989 appearance before the Board, Seagroves recommended that the City outlaw all parking along Lyon Street. Commissioner High moved for adoption of the ordinance, which passed without notice to the Moores. In their complaint, plaintiffs allege the ordinance was not enforced on week nights nor during daytime hours, but that when the Dinette opened for disco-dancing on the weekends, officers appeared and immediately began ticketing and towing automobiles of Dinette patrons.\nOn 28 March 1989, Moore formally complained at a Board meeting concerning conduct of the Department. Specifically, he contested the Department\u2019s alleged (1) negligent or deliberate failure to return his stolen gun; (2) intentionally slow response to his calls and the failure on a particular occasion to arrest an unruly customer; (3) selective enforcement of the no-parking ordinance against Dinette customers; and (4) enforcement of the public parking ordinance on a privately-owned vacant lot adjacent to the Dinette. High and Seagroves both were in attendance at this meeting.\nFollowing Moore\u2019s complaint to the Board, City officers continued their practice of recording each incident involving Dinette patrons. In July 1990, two events occurred which, according to Seagroves, \u201cfinalized\u201d his decision to request that the District Attorney commence procedures to close the Dinette.\nIn the first, a driver backed his automobile into a parking lot on Main Street where Seagroves was seated in his patrol car, causing a collision with the Chiefs vehicle. In the second, labelled a \u201cmob scene\u201d or \u201criot\u201d by defendants, two men began fighting in a parking lot behind a drug store on Main Street, a crowd gathered to watch, and shots allegedly were fired into the air. It is undisputed, however, that although these two incidents occurred in an area near the Dinette, they were never directly linked to the Moores, the Dinette or any of its patrons.\nOn 24 July 1990, Seagroves appeared before the Board and recommended it seek to have the Dinette proclaimed a public nuisance and shut down. The Chief submitted a collection of police reports allegedly generated since 1988 as a result of activities at the Dinette or the conduct of its patrons. He also revealed in deposition testimony that he and the Board had previously discussed the \u201cproblem\u201d of the Dinette on numerous occasions.\nAfter hearing from Seagroves, the Board passed a Resolution on 24 July 1990 requesting the local District Attorney to institute a nuisance abatement action against the Moores pursuant to N.C. Gen. Stat. \u00a7 19-1 (1983 & Cum. Supp. 1994) and N.C. Gen. Stat. \u00a7 19-2.1 (1983). High was no longer a Commissioner on the date the Resolution issued and was not involved in its passage.\nSeagroves personally delivered the Resolution to the District Attorney who on 1 August 1990 filed a nuisance abatement action against the Moores in Granville County Superior Court. The complaint was verified by Seagroves. On that same date, the Superior Court issued a temporary restraining order enjoining the Moores from operating the Dinette in any capacity and ordering Seagroves to padlock the premises. Following a hearing, the court entered a preliminary injunction on 10 August 1990 prohibiting operation of the business between the hours of 9:00 p.m. and 7:00 a.m.\nThe nuisance abatement trial commenced 20 March 1991, and on 26 March 1991 the jury returned a verdict finding the Moores\u2019 operation of the Dinette did not constitute a public nuisance. Judgment was entered upon the verdict 11 April 1991, dissolving the preliminary injunction and awarding the Moores attorney fees in the amount of $14,000.00, plus additional costs totalling $578.40.\nOn 24 January 1992, plaintiffs filed the instant action against the City, Seagroves (individually and in his official capacity as Police Chief), and High (individually and in his official capacity as City Commissioner). In their complaint, plaintiffs alleged, inter alia, the following separate claims for relief with respect to each named defendant: malicious prosecution; intentional infliction of emotional distress; and violation of federal constitutional rights secured by the First, Fifth and Fourteenth Amendments to the United States Constitution. Both compensatory and punitive damages were sought from each defendant.\nDefendants answered denying liability. Citing occurrences subsequent to conclusion of the nuisance action, Seagroves separately counterclaimed alleging a new public nuisance action.\nOn 2 December 1992, plaintiffs moved for summary judgment on Seagroves\u2019 counterclaim; on 11 January 1993, defendants likewise filed a motion for summary judgment as to all counts contained in plaintiffs\u2019 complaint. Following a hearing, the trial court granted both motions. Only plaintiffs appeal.\nI. State Claims\nA. Malicious Prosecution\nPlaintiffs first contend the trial court erred by allowing summary judgment on their claim of malicious prosecution. We believe this contention has merit in regards to Seagroves and the City.\nSummary judgment is a procedural device designed to allow penetration of an unfounded claim or defense before trial by exposing a fatal weakness therein. Patrick v. Hurdle, 16 N.C. App. 28, 37, 190 S.E.2d 871, 877 (citation omitted), disc. review denied, 282 N.C. 304, 192 S.E.2d 195 (1972). It is properly granted only when the \u201cpleadings, 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.\u201d See N.C.R. Civ. P. 56(c) (1990).\nThe party moving for summary judgment bears the burden of establishing the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Normile v. Miller and Segal v. Miller, 63 N.C. App. 689, 692, 306 S.E.2d 147, 149 (1983) (citations omitted), modified on other grounds and aff\u2019d, 313 N.C. 98, 326 S.E.2d 11 (1985). A movant may meet its burden by showing either that: (1) an essential element of the non-movant\u2019s case is nonexistent; or (2) based upon discovery, the non-movant cannot produce evidence to support an essential element of its claim; or (3) the movant cannot surmount an affirmative defense which would bar the claim. Watts v. Cumberland County Hosp. System, 75 N.C. App. 1, 6, 330 S.E.2d 242, 247 (1985) (citation omitted), rev\u2019d in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986).\nIn addition, because summary judgment is a drastic remedy, Anderson v. Canipe, 69 N.C. App. 534, 537, 317 S.E.2d 44, 47 (1984) (citation omitted), the record is to be viewed in the light most favorable to the non-movant, giving it the benefit of all inferences which reasonably may be drawn therefrom. Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289, 291 (1974) (citations omitted).\nMalicious prosecution based upon a prior civil proceeding (such as a public nuisance action, see G.S. \u00a7 19-2.1) consists of four elements:\n(1) ... initiat[ion by the defendant of] the [prior] proceedings, (2) . . . [with] malic[e] and without probable cause, (3) . . . termination of those proceedings] in plaintiffs favor, and (4) . . . special damages beyond the ordinary expense and inconvenience of litigation.\nAbram v. Charter Medical Corp. of Raleigh, 100 N.C. App. 718, 722, 398 S.E.2d 331, 333-34 (1990) (citation omitted), disc. review denied, 328 N.C. 328, 402 S.E.2d 828 (1991); see also Stanback v. Stanback, 297 N.C. 181, 202-03, 254 S.E.2d 611, 625 (1979) (citations omitted).\nThe public nuisance action (the prior proceeding) indisputably was resolved in favor of the Moores. How\u00e9ver, defendants maintain plaintiffs\u2019 malicious prosecution claim was fatally deficient because the evidence raised no question of fact (1.) regarding \u201cinitiation\u201d of that action by any of the named defendants (2.) maliciously or without probable cause, or (3.) regarding whether plaintiffs incurred any resultant \u201cspecial damages.\u201d\nWe discuss each of these elements separately.\n1.\nPlaintiffs contend the evidence, viewed in the most favorable light, indicates defendants \u201cinstituted, procured or participated in\u201d the public nuisance action. See Williams v. Kuppenheimer Manufacturing Co., 105 N.C. App. 198, 200, 412 S.E.2d 897, 899 (1992) (citation omitted).\nDefendants counter, however, that the contours of the first element of a malicious prosecution claim based upon an earlier civil proceeding differ from one grounded upon a prior criminal proceeding. More particularly, they argue a plaintiff in circumstances such as those sub judice \u201cmust show . . . that defendant initiated [in the sense of actually filed] the prior civil proceeding ....\u201d Stanback, 297 N.C. at 203, 254 S.E.2d at 625 (emphasis added) (citations omitted). In other words, plaintiffs\u2019 malicious prosecution claim cannot be based upon defendants\u2019 \u201cprocuring\u201d the prior civil proceeding, or \u201ccausing\u201d it to be brought by someone other than the named defendants, such as the District Attorney. Defendants cite language in Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985), as follows:\nthere is no allegation that defendants . . . ever initiated a prior action against [plaintiff]; rather, [plaintiff] alleges that defendants \u201cprocured or caused to be instituted against [him]\u201d the third party indemnity actions filed by the Bank. This does not, in our estimation, satisfy the requirement that the defendant initiate a prior proceeding.\nHawkins, 78 N.C. App. at 593, 337 S.E.2d at 685 (third alteration in original) (emphasis added) (Court was examining the propriety of trial court\u2019s Rule 12(b)(6) dismissal of plaintiff\u2019s malicious prosecution claim.).\nDefendants rely upon the District Attorney\u2019s affidavit submitted to the trial court asserting that \u201cin [his] opinion, after a review of the police reports and available information, [he] was satisfied that probable cause existed for the filing of such a nuisance abatement action and the seeking of injunctive relief.\u201d It is not disputed that based upon this conclusion, the District Attorney filed the complaint against plaintiffs on behalf of the State of North Carolina. Therefore, defendants argue, although the matter was initially brought to the prosecutor\u2019s attention by Seagroves and the Board, the ultimate decision to file (i.e., \u201cinitiate\u201d) the action was made solely by the District Attorney in the exercise of his discretion. Accordingly, defendants continue, neither the City, Seagroves, nor High can be held responsible for having \u201cinitiated\u201d the prior nuisance proceeding.\nWe do not interpret the \u201cinitiation\u201d requirement as narrowly as defendants, nor do we read either Stanback or Hawkins as creating a rule of law that whenever a malicious prosecution claim is based upon a prior civil (as opposed to criminal) proceeding, a plaintiff must put forth evidence that the defendant initiated, in the sense of actually filed, the earlier action.\nWe first note that Webster\u2019s defines \u201cto initiate\u201d as \u201cto begin or set going: make a beginning of: perform or facilitate the first actions, steps, or stages of....\u2019\u2019 Webster\u2019s Third New International Dictionary 1164 (1966). Black\u2019s Law Dictionary ascribes the following meaning to the term: \u201cCommence, start; originate; introduce .... To propose for approval. . . Black\u2019s Law Dictionary 705 (5th ed. 1979).\nMoreover, when discussing the tort of malicious prosecution generally, our cases indicate a liberal reading of the requirement that the defendant have \u201cinitiated\u201d the earlier proceeding. For example, while some of our decisions involving a claim based upon a prior criminal action have stated a plaintiff must prove the defendant initiated the prior criminal proceeding, see, e.g., Alt v. Parker, 112 N.C. App. 307, 312, 435 S.E.2d 773, 776 (1993), disc. review denied, 335 N.C. 766, 442 S.E.2d 507 (1994), and others have said a plaintiff must show defendant instituted the prior proceeding, see, e.g., Juarez-Martinez v. Deans, 108 N.C. App. 486, 491, 424 S.E.2d 154, 157, disc. review denied, 333 N.C. 539, 429 S.E.2d 558 (1993), still others have held a plaintiff must establish that the defendant \u201cinstituted, procured or participated in the criminal proceeding against plaintiff.\u201d Williams, 105 N.C. App. at 200, 412 S.E.2d at 899 (citation omitted) (emphasis added).\nAdditional decisions indicate this Court evaluates the \u201cinitiate\u201d or \u201cinstitute, procure or participate in\u201d element of malicious prosecution claims based upon prior civil or criminal actions in the same manner. See U v. Duke University, 91 N.C. App. 171, 177, 371 S.E.2d 701, 706 (\u201cTo recover for malicious prosecution based on all types of actions, the plaintiff must show that the defendant initiated the earlier proceeding . . . .\u201d) (emphasis added) (citation omitted), disc. review denied, 323 N.C. 629, 374 S.E.2d 590 (1988).\nWe hold that, notwithstanding that the prior proceeding herein was a civil nuisance action, evidence considered in the light most favorable to plaintiffs tending to show defendants \u201cinitiated\u201d or \u201cinstituted, procured or participated in\u201d that action would suffice, for purposes of surviving summary judgment, to present the first element of a malicious prosecution claim. Accordingly, we examine the evidence as to each defendant.\nChief Seagroves\nIt was uncontroverted below that at a Board meeting held 24 July 1990, Seagroves suggested the Dinette be declared a public nuisance and permanently closed. In support of his proposal, Seagroves submitted a collection of police reports concerning the Dinette and its patrons which officers had compiled over the years at his direction. After the Board passed a resolution requesting the District Attorney to undertake a nuisance abatement action, Seagroves himself took that document and the list of \u201cIncidents involving Moore\u2019s [Dinette] or Moore\u2019s Patrons from the Creedmoor Police Log\u201d to the District Attorney. The Chief thus single-handedly provided both the Board and the District Attorney with the information upon which their respective determinations ultimately were based. Moreover, in deposition testimony, Seagroves characterized himself as \u201cthe motivating force\u201d behind the nuisance action. He also verified the complaint against plaintiffs, attesting that all information contained therein was \u201ctrue to the best of his knowledge . . . .\u201d\nWe believe consideration of the foregoing in the light most favorable tp plaintiffs, Whitley, 24 N.C. App. at 206-07, 210 S.E.2d at 291 (citations omitted), raises a genuine issue of material fact regarding whether Seagroves \u201cinitiated\u201d (or \u201cinstituted, procured or participated in\u201d) the nuisance abatement action. In this regard, the following language from the Williams case is instructive:\n[DJefendant contends it did not institute, procure or participate in the prior..! proceeding, rather it merely provided assistance and information to the prosecuting authorities. The act of giving honest assistance and information to prosecuting authorities does not render one liable for malicious prosecution. However, in the present case, the jury could find defendant\u2019s actions went further than merely providing assistance and information. Defendant brought all the documents used in the prosecution to the police. . . . Except for the efforts of defendant, it is unlikely there would-have been a criminal prosecution of plaintiff Under these circumstances, the trial court was correct in determining this was a factual matter for the jury.\nWilliams, 105 N.C. App. at 200-01, 412 S.E.2d at 900 (emphasis added) (citations omitted).\nSimilarly, in the case sub judice, \u201c[e]xcept for the efforts of\u2019 Seagroves, it is unlikely the Board would have adopted the nuisance resolution nor would the District Attorney have filed the nuisance abatement action against plaintiffs. A jury could thus reasonably find that the Chief \u201cbeg[a]n or set going: ma[d]e a beginning of: perform [ed] or facilitate[d] the first actions, steps, or stages of\u201d the public nuisance action. See Webster\u2019s at 1164.\nThe City\nThe deposition testimony of Seagroves and High indicated that the Board frequently discussed closing plaintiffs\u2019 Dinette. For example, while serving as Police Commissioner for the Board, High often met in conference with Seagroves and spoke about the \u201cproblem\u201d the Dinette was creating in the Creedmoor community. Further, both men acknowledged the Board discussed specific methods of closing the Dinette on numerous occasions during High\u2019s tenure as a Commissioner, including on one occasion asking the town attorney about the plausibility of using the nuisance laws against plaintiffs. Moreover, when presented with Seagroves\u2019 24 July 1990 recommendation, the Board voted to adopt the resolution and directed the Chief to confer with the District Attorney about the matter.\nFinally, plaintiff alleged, and the evidence at a minimum tended to show that, at all relevant times, \u201cSeagroves acted as the agent and employee of the Police Department of the City of Creedmoor and acted within the course and scope of his agency.\u201d In that event, the City would be vicariously liable for the actions of Seagroves, see, e.g., Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 279, 450 S.E.2d 753, 757 (1994), disc. review denied, 340 N.C. 115, 456 S.E.2d 318 (1995), which we have previously determined to be sufficient for purposes of summary judgment on the first element of a claim of malicious prosecution.\nConstrued in the light most favorable to plaintiffs, therefore, Whitley, 24 N.C. App. at 206-07, 210 S.E.2d at 291 (citations omitted), the evidence adequately raised an issue of fact as to whether defendant City (i.e., the Board) \u201cinitiated\u201d the public nuisance action.\nCommissioner High\nWith respect to defendant High, however, we believe the evidentiary showing was insufficient.\nIt is undisputed that High served on the Board from December 1977 through December 1989. As he was thus no longer a Commissioner in January 1990, High neither voted on the resolution nor was he involved in its passage. Even though High may have voiced his disapproval of the Dinette at earlier Board meetings, such expressions of opinion do not as a matter of law constitute evidence of \u201cinitiation\u201d of (or \u201cinstitu\u00ed[ion] [of], procure[ment] [of] or participation] in\u201d) the public nuisance action. See Williams, 105 N.C. App. at 200, 412 S.E.2d at 899 (citation omitted).\nAs evidence in support of an essential element of plaintiffs\u2019 malicious prosecution action against High was nonexistent, the trial court properly entered summary judgment in his favor as to that particular claim. See, e.g., Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 493, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993).\n2.\nWe next consider the second element of a claim for malicious prosecution \u2014 i.e., that defendants initiated the public nuisance proceeding \u201cmaliciously and without probable cause.\u201d\n(a.) Probable Cause\nIn a malicious prosecution action, \u201cprobable cause \u2018has been properly defined as the existence of such facts and circumstances, known to [defendants] at the time, as would induce a reasonable man to commence a prosecution.\u2019 \u201d Pitts v. Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379 (1978) (quoting Morgan v. Stewart, 144 N.C. 424, 430, 57 S.E. 149, 151 (1907)); see also Allison v. Food Lion, Inc., 84 N.C. App. 251, 254, 352 S.E.2d 256, 257 (1987) (test for determining absence of probable cause is \u201cwhether a [person] of ordinary prudence and intelligence under the circumstances would have known that the charge had no reasonable foundation\u201d) (citation omitted).\nDefendants contend probable cause was evidenced by the allegations contained in the nuisance action, including the list of incidents compiled by the Department, which defendants maintain sets out dozens of events constituting \u201cbreaches of the peace.\u201d See G.S. \u00a7 19-1. In addition, defendants point to the trial court\u2019s issuance of a preliminary injunction and its denial of plaintiffs\u2019 dismissal motion at the nuisance trial.\nHowever, plaintiffs\u2019 evidence indicated that many of the listed incidents involved neither the Dinette nor its patrons. Moreover, neither of the two occurrences which Seagroves stated \u201cfinalized\u201d his decision to seek action from the Board, that is, the wreck of Seagroves\u2019 patrol car and the parking lot \u201criot\u201d near Main Street, were shown by any evidence to be linked to the Moores or the Dinette. Therefore, because the factual matters upon which defendants relied to establish \u201cprobable cause\u201d are disputed, the existence of probable cause is properly a question for the jury. Flippo v. Hayes, 98 N.C. App. 115, 118, 389 S.E.2d 613, 615 (citation omitted), aff\u2019d, 327 N.C. 490, 397 S.E.2d 512 (1990).\nFurther, when evidence is presented showing both the existence and the absence of probable cause, a malicious prosecution action should proceed to trial. Williams, 105 N.C. App. at 202, 412 S.E.2d at 901; see also, e.g., Jones v. Gwynne, 312 N.C. 393, 403, 323 S.E.2d 9, 18 (1984). Thus, where prima facie evidence of the existence and the absence of probable cause respectively is produced, the issue should be left to determination by the jury and not ruled upon as a matter of law. Id.) see also Messick, 110 N.C. App. at 716, 431 S.E.2d at 495 (\u201c[B]ased on the facts illustrated by [officers\u2019] testimony, probable cause did exist to arrest [plaintiff]. Because the plaintiff has presented no forecast of evidence to the contrary, summary judgment on the malicious prosecution claim was proper.\u201d) (emphasis added).\nIn the case sub judice, both direct and circumstantial evidence was presented tending to show a lack of probable cause for the institution of the public nuisance proceedings. In addition to the disputed evidence mentioned above, for example, Seagroves in deposition testimony specifically admitted he had no reason to believe the Moores themselves ever created a nuisance. Further, in uncontradicted affidavits, several individuals residing on Lyon Street indicated they were not disturbed by operation of the Dinette, and that the Moores were \u201cdecent law-abiding citizens who work very hard to conduct a business where people can meet, socialize, eat, dance and assemble on weekends.\u201d Undercover officer Clark pointedly asserted that neither plaintiff tolerated illegal activity or breaches of the peace in the Dinette or on its premises. Similarly, by way of petition, some fifty-seven citizens from Creedmoor and surrounding communities stated \u201cMoore operates [the] Dinette in a manner that is peaceful, safe, lawful. He does not permit. . . anyone else to conduct acts which create and constitute breaches of the peace.\u201d Indeed, it appears the jury deliberated a mere ten minutes before rejecting the public nuisance claims against plaintiffs.\nAccordingly, as evidence before the trial court reflected both the presence and absence of probable cause for the bringing of a public nuisance action against defendants Seagroves and the City, we agree with plaintiffs that the trial court erred in entering summary judgment in favor of those defendants insofar as this portion of the malicious prosecution claim is concerned.\n(b.) Malice\nIn the trial court, defendants proffered certain affidavits tending to show the public nuisance action against plaintiffs was commenced with probable cause and not maliciously. Citing Middleton v. Myers, 299 N.C. 42, 45, 261 S.E.2d 108, 110 (1980), defendants assert that once they submitted such evidence negating the element of malice, plaintiffs were \u201crequired to come forward with [their] own affidavits or evidence setting forth specific facts as to the maliciousness of defendants\u2019] prosecution.\u201d Id. We do not disagree with defendants\u2019 general statement of law. However, the circumstances sub judice mandate a result different from that reached in Middleton.\nIn an action for malicious prosecution, the malice element may be satisfied by a showing of either actual or implied (legal) malice. See, e.g., Best v. Duke University, 112 N.C. App. 548, 552, 436 S.E.2d 395, 399 (1993) (citation omitted), aff\u2019d in part, rev\u2019d in part on other grounds, 337 N.C. 742, 448 S.E.2d 506, reh\u2019g denied, 338 N.C. 525, 452 S.E.2d 807 (1994); see also Alt, 112 N.C. App. at 312, 435 S.E.2d at 776 (citation omitted). \u201cActual malice ... is defined as \u2018ill-will, spite, or desire for revenge, or under circumstances of insult, rudeness or oppression, or in a manner evidencing a reckless and wanton disregard of [plaintiff\u2019s] rights.\u2019 \u201d Williams, 105 N.C. App. at 202-03, 412 S.E.2d at 901 (alteration in original) (quoting Williams v. Boylan-Pearce, Inc., 69 N.C. App. 315, 319, 317 S.E.2d 17, 20 (1984), aff\u2019d per curiam, 313 N.C. 321, 327 S.E.2d 870 (1985)). Actual malice, which \u201cis more difficult to substantiate ... is only required if plaintiff is seeking punitive damages.\u201d Id. at 202-03, 412 S.E.2d at 901 (citation omitted).\nImplied (or legal) malice, on the other hand, \u201cmay be inferred from want of probable cause in reckless disregard of plaintiff[s\u2019] rights.\u201d Pitts, 296 N.C. at 86-87, 249 S.E.2d at 379 (citations omitted); see also Williams, 105 N.C. App. at 203, 412 S.E.2d at 901 (\u201clegal malice may be inferred from a lack of probable cause\u201d) (citations omitted).\nOur determination above that the evidence (detailed supra) raised a justiciable issue of fact as to whether defendants initiated the nuisance abatement action without probable cause resolves the implied malice question as well. Id. Based upon the inference of implied malice arising from evidence of the absence of probable cause, plaintiffs presented sufficient factual evidence to support an award of compensatory damages and to withstand defendants\u2019 motion for summary judgment.\nAs there was no showing of actual malice, however, plaintiffs\u2019 claim for punitive damages based upon their malicious prosecution action must fail. See Williams, 105 N.C. App. at 203, 412 S.E.2d at 901 (\u201c[A] showing of actual malice is only required if plaintiff is seeking punitive damages ...[;] [l]egal malice suffices to support an award of compensatory damages for malicious prosecution.\u201d) (citations omitted).\nNotwithstanding, plaintiffs contend that because the evidence construed in their favor demonstrates the public nuisance action was commenced in \u201cretaliation for the exercise of [the Moores\u2019] First Amendment rights and/or corruption within the municipal government and/or racial prejudice,\u201d they have presented sufficient evidence of actual malice. As discussed further infra at section II, however, we are not persuaded by this argument.\n3.\nDefendants also maintain the evidence failed to forecast the sort of special damages necessary when a malicious prosecution action is based upon a prior civil proceeding. We disagree.\nOur Supreme Court has explained: Stanback, 297 N.C. at 203, 254 S.E.2d at 625 (citations omitted); see also Abram, 100 N.C. at 722, 398 S.E.2d at 333-34 (\u201c[A] claim of malicious prosecution requires proof . . . that there are special damages beyond the ordinary expense and inconvenience of litigation.\u201d) (citation omitted); see also Finance Corp. v. Lane, 221 N.C. 189, 196, 19 S.E.2d 849, 853 (1942) (\u201c[A] suit for malicious prosecution will lie where the plaintiffs property or business has been interfered with by . . . the granting of an injunction ....\u201d) (quotation omitted).\nThe gist of such special damage is a substantial interference either with the plaintiff\u2019s person or his property such as . . . causing an injunction to issue prohibiting plaintiffs use of his property in a certain way.\nDefendants respond that because \u201c[i]n the unique facts of a nuisance abatement case, a restraining order is inherent as the means by which the plaintiff would prevail if it won. . . . Being enjoined from operating the alleged nuisance is . . . not a special damage as contemplated for the malicious prosecution tort.\u201d See G.S. \u00a7 19-1. In addition, defendants argue that a malicious prosecution action cannot be grounded upon \u201c[e]mbarrassment, expense, inconvenience, lost time from work or pleasure, stress, strain and worry [such as] are experienced by all litigants, to one degree or another . . . Brown v. Averette, 68 N.C. App. 67, 70, 313 S.E;2d 865, 867 (1984).\nWe believe the uncontroverted evidence that the Moores\u2019 disco-dancing business was enjoined from operation for seven months pending trial adequately establishes \u201ca substantial interference with . . . plaintiffs\u2019] . . . property,\u201d Stanback, 297 N.C. at 203, 254 S.E.2d at 625 (citations omitted), sufficient to withstand defendants\u2019 motion for summary judgment. Indeed, at the hearing in the trial court, counsel for defendants conceded that \u201cbecause of the injunction . . . there is probably enough to get [them] into the door to talk about some special damages.\u201d\nImmunities\nIn the event we were to determine, as we have, that plaintiffs\u2019 action for malicious prosecution survives the foregoing summary judgment hurdles, defendants Seagroves and the City argue the claim is nonetheless barred by virtue of certain immunities. In other words, they maintain plaintiffs cannot surmount an applicable affirmative defense. See, e.g., Taylor v. Ashburn, 112 N.C. App. 604, 606-07, 436 S.E.2d 276, 278 (1993) (citation omitted), disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994).\na. The City\n\u201cUnder the doctrine of governmental immunity, a municipality is not liable for the torts of its officers and employees if the torts are committed [in the performance of] a governmental function.\u201d Id. at 607, 436 S.E.2d at 278 (citations omitted); see also Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985) (citations omitted). Our cases have long held that \u201c[a] police officer in the performance of his duties is engaged in a governmental function.\u201d Mullins v. Friend, 116 N.C. App. 676, 680, 449 S.E.2d 227, 230 (1994) (citation omitted). When enacting resolutions and ordinances, a City\u2019s Board of Commissioners and the officers of which it is composed are likewise engaged in a governmental function. Accordingly, the City would ordinarily not be liable for the torts (such as malicious prosecution) of Seagroves or the Board. See, e.g., Davis v. Messer, 119 N.C. App. 44, 52, 457 S.E.2d 902, 907 (1995).\nHowever, a municipality may waive governmental immunity by the purchase of liability insurance, see Gregory v. City of Kings Mountain, 117 N.C. App. 99, 103, 450 S.E.2d 349, 353 (1994) (citations omitted); but \u201c[ijmmunity is waived only to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged.\u201d Combs v. Town of Belhaven, 106 N.C. App. 71, 73, 415 S.E.2d 91, 92 (1992) (citations omitted); see also N.C. Gen. Stat. \u00a7 160A-485 (1994).\nIn the case sub judice, plaintiffs presented uncontroverted evidence establishing that the City purchased liability insurance covering the malicious prosecution claim, and defendants concede as much in their appellate brief. The City, therefore, has waived any defense of governmental immunity with respect to this cause of action to the extent plaintiffs damages do not exceed the amount of coverage. See, e.g., Mullins, 116 N.C. App. at 681, 449 S.E.2d at 230 (citation omitted).\nb. Chief Seagroves\nSeagroves was sued in both his official and his individual capacities. Since public officers, such as policemen, share in the immunity of their governing municipality, they are generally \u201cimmune from suit for torts committed while . . . performing a governmental function.\u201d Id. at 680, 449 S.E.2d at 230 (citation omitted); Taylor, 112 N.C. App. at 607, 436 S.E.2d at 278 (citations omitted). This is because \u201c[a]n action brought against individual officers in their official capacities is an action against the municipality.\u201d Gregory, 117 N.C. App. at 102, 450 S.E.2d at 352-53 (citation omitted). However, where, as here, the City has waived its sovereign immunity with the purchase of liability insurance, public officers such as Seagroves axe likewise not entitled to raise governmental immunity as a defense to liability, at least as to the amount of coverage purchased. See Mullins, 116 N.C. App. at 680-81, 449 S.E.2d at 230.\nAs to the claim against Seagroves in his individual capacity, it is uncontroverted that a public official sued individually is \u201cshielded from liability\u201d unless his conduct was \u201c \u2018corrupt or malicious,\u2019 \u201d or he \u201c \u2018acted outside of and beyond the scope of his duties.\u2019 \u201d See, e.g, Wiggins, 73 N.C. App. at 49, 326 S.E.2d at 43 (quoting Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952)).\nMoreover, our courts have repeatedly observed that \u201can action in tort for malicious prosecution is based upon a defendant\u2019s malice in causing process to issue.\u201d Middleton, 299 N.C. at 44, 261 S.E.2d at 109 (emphasis added). As we have determined, the forecast of evidence regarding plaintiffs\u2019 malicious prosecution claim against Seagroves to be sufficient to withstand summary judgment, we also hold the evidence raised an issue of material fact as to whether his conduct was \u201ccorrupt or malicious.\u201d Seagroves\u2019 affirmative defense notwithstanding, summary judgment was improperly entered in his favor.\nIn sum, we hold the trial court erred by granting summary judgment in favor of the City and Seagroves as to plaintiffs\u2019 malicious prosecution cause of action for compensatory damages only. However, summary judgment as to those defendants for punitive damages and as'to defendant High on this claim is affirmed.\nB. Intentional Infliction of Emotional Distress\nPlaintiffs next argue the trial court erred by allowing each defendant\u2019s motion for summary judgment with respect to plaintiffs\u2019 intentional infliction of emotional distress claim. This argument cannot be sustained.\nThe elements of a claim for intentional infliction of emotional dis-' tress are that the defendant \u201c(1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress.\u201d Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 6-7, 437 S.E.2d 519, 522 (1993) (citation omitted), disc. review denied, appeal dismissed, 336 N.C. 71, 445 S.E.2d 29 (1994). Assuming arguendo sufficient evidence supported the third element, evidentiary infirmities with respect to the remaining elements nonetheless rendered summary judgment appropriate.\nIn particular, as this Court stated recently:\nTo. meet the essential element of extreme and outrageous conduct, the conduct must go beyond all possible bounds of decency, and \u201cbe regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats . . . .\u201d\nWagoner v. Elkin City Schools\u2019 Bd. of Education, 113 N.C. App. 579, 586, 440 S.E.2d 119, 123 (quoting Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 383, 430 S.E.2d 306, 310, rev\u2019d in part, 335 N.C. 233, 436 S.E.2d 835 (1993)), disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). Further, plaintiffs must set forth \u201cspecific incidents\u201d of conduct, see Bryant, 113 N.C. App. at 7, 437 S.E.2d at 523 (citation omitted), which \u201cgo beyond all possible bounds of decency,\u201d and are such as could be considered \u201c \u2018atrocious, and utterly intolerable.\u2019 \u201d Wagoner, 113 N.C. App. at 586, 440 S.E.2d at 123 (quotation omitted).\nSuffice it to observe that we do not believe the record discloses any evidence which raises a question of fact as to whether defendants\u2019 conduct was \u201cextreme and outrageous.\u201d Nor is there evidence indicating that by their conduct defendants intended for plaintiffs to suffer severe emotional distress. Accordingly, the trial court properly entered summary judgment as to all defendants on plaintiffs\u2019 cause of action for intentional infliction of emotional distress.\nII. Federal Constitutuional Claims\nPlaintiffs next contend summary judgment was improperly granted 4as to their claims for violations of the United States Constitution. More particularly, plaintiffs assert their First Amendment rights to free speech and to petition the government for redress of grievances as well as their Fourteenth Amendment rights to equal protection and to substantive due process were violated by defendants\u2019 conduct. We are not persuaded by plaintiffs\u2019 arguments relative to this assignment of error.\n\u201cSection 1983 affords the claimant a civil remedy for a deprivation of federally protected rights by persons acting under the color of state law.\u201d Majebe v. N.C. Bd. of Medical Examiners, 106 N.C. App. 253, 259, 416 S.E.2d 404, 407, disc. review denied, appeal dismissed, 332 N.C. 484, 421 S.E.2d 355 (1992). See 42 U.S.C. \u00a7 1983. However, as \u201c[t]he text of section 1983 permits actions only against a \u2018person,\u2019 \u201d Corum v. University of North Carolina, 330 N.C. 761, 771, 413 S.E.2d 276, 282 (citation omitted), reh\u2019g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 121 L. Ed. 2d 431, 61 U.S.L.W. 3287, 61 U.S.L.W. 3369, 61 U.S.L.W. 3370 (1992), our cases have held that:\nwhen an action is brought under section 1983 in state court against the State, its agencies, and/or its officials acting in their official capacities, neither a State nor its officials acting in their official capacity are \u201cpersons\u201d under section 1983 when the remedy sought is monetary damages.\nId. at 771, 413 S.E.2d at 282-83 (citation omitted); see also Lenzer v. Flaherty, 106 N.C. App. 496, 513, 418 S.E.2d 276, 287 (citation omitted), disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Because plaintiffs in the case sub judice seek monetary damages for alleged violation of their constitutional rights, they are not entitled to relief under section 1983 against the City, or against Seagroves and High in their official capacities, Corum, 330 N.C. at 771, 413 S.E.2d at 283; see also Messick, 110 N.C. App. at 713-14, 431 S.E.2d at 493 (citations omitted), and summary judgment was proper as to those claims.\nHowever, as public officials, Seagroves and High \u201cwill be personally answerable for damages under section 1983 . . . where qualified immunity is not available to shield [them] from liability for deprivation of federal rights.\u201d Lenzer, 106 N.C. App. at 506, 418 S.E.2d at 282-83 (emphasis added) (citation omitted).\nAs discussed below, we find the evidentiary forecast insufficient with respect to plaintiffs\u2019 federal constitutional claims brought against defendants Seagroves and High in their individual capacities. It is therefore unnecessary to address the issue of qualified immunity. See, e.g., Messick, 110 N.C. App. at 717, 431 S.E.2d at 495.\nA.\nConcerning the alleged violation of their First Amendment right to free speech and to petition the government for redress of grievances, plaintiffs\u2019 primary contention is that defendants\u2019 efforts to close the Dinette originated in retaliation for Moore\u2019s complaints against the Department. In this context, plaintiffs correctly observe that a citizen\u2019s right to criticize government includes the right to criticize police officials in the performance of their duties. See, e.g., Hague v. C.I.O., 307 U.S. 496, 513, 83 L. Ed. 1423, 1435 (1939), and. that decisions by public officials made in retaliation for the exercise of such constitutionally protected rights are actionable under \u00a7 1983. Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990) (citations omitted).\nHowever, as this Court has stated:\nTo maintain [a] claim [for violation of federal free speech rights] under section 1983, [a] plaintiff must first establish that the conduct was protected by showing that (i) the speech pertained to a matter of public concern and (ii) the public concern outweighed the governmental interest in efficient operations.\nLenzer, 106 N.C. App. at 506-07, 418 S.E.2d at 283 (citation omitted). Assuming arguendo that Moore\u2019s complaints about the Department\u2019s handling of his calls for assistance \u201cpertained to a matter of public concern,\u201d id. (emphasis added), we nevertheless hold summary judgment was proper as to this claim because there was no evidentiary showing, nor do plaintiffs argue the point in their brief, that this \u201cpublic concern\u201d outweighed \u201cthe governmental interest in efficient operations.\u201d\nWe observe at this juncture that a municipality and its officers have a \u201cduty to keep the public streets . . . open for travel and free from unnecessary obstructions.\u201d See N.C. Gen. Stat. \u00a7 160A-296(a)(2) (1994). Further, a city is authorized to enact ordinances which \u201cdefine, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.\u201d See N.C. Gen. Stat. \u00a7 160A-174(a) (1994); see also Grace Baptist Church v. City of Oxford, 320 N.C. 439, 442-43, 358 S.E.2d 372, 374 (1987). Similarly, the officers of a municipality, such as Seagroves and High, are entitled to take reasonable actions incident to enforcement of the city\u2019s proclamations.\nB.\nAs to the Fourteenth Amendment right to equal protection under the law, plaintiffs contend defendants conspired to discriminate against them on the basis of race and selectively enforced the no-parking ordinance enacted by the Board in 1989. We are not persuaded by plaintiffs\u2019 arguments relative to this assignment of error.\nTo support the proposition of impermissible racial discrimination, plaintiffs are able to point only to the circumstance that the Dinette is owned, operated and primarily frequented by members of the black race, coupled with the assertion that Seagroves, High and the Board conspired to close it, and the bald, unsupported suggestion that Seagroves and High were motivated by racist leanings or tendencies. The evidence is wholly inadequate on the claim of racial discrimination.\nRegarding their argument that the no-parking ordinance was selectively enforced, plaintiffs refer to evidence that while vehicles of Dinette patrons were routinely ticketed or towed if left along Lyon Street during the Dinette\u2019s weekend operating hours, automobiles were regularly parked along Lyon Street on weekday nights and Sunday mornings during church without being ticketed or towed.\nHowever, our courts have frequently pointed out that \u201cselective enforcement of a law is not itself a constitutional violation....\u201d State v. Davis, 96 N.C. App. 545, 550, 386 S.E.2d 743, 745 (1989) (citation omitted); rather, a plaintiff must present evidence that the defendant was motivated by \u201can invidious purpose\u201d in selectively enforcing the particular law. Id. Stated otherwise, plaintiffs must have been:\nsingled out for prosecution while others similarly situated and committing the same acts [were] not.. . [and] the discriminatory selection for [enforcement must have been] invidious and done in bad faith in that it restfed] upon such impermissible considerations as race, religion or the desire to prevent [their] exercise of constitutional rights.\nMajebe, 106 N.C. App. at 260-61, 416 S.E.2d at 408 (emphasis added) (quoting State v. Howard, 78 N.C. App. 262, 266-67, 337 S.E.2d 598, 601-02 (1985), disc. review denied, appeal dismissed, 316 N.C. 198, 341 S.E.2d 581 (1986)); see also Grace, 320 N.C. at 445, 358 S.E.2d at 376 (\u201cThe party who alleges selective enforcement of an ordinance has the burden of showing that the ordinance has been administered \u2018with an evil eye and an unequal hand.\u2019 \u201d) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 30 L. Ed. 220, 227 (1886)).\nDefendants relied in the trial court upon Seagroves\u2019 deposition testimony as indicating a legitimate purpose for the enactment of the no-parking ordinance on Lyon Street and for the manner in which it was enforced. In particular, defendants presented substantial and uncontroverted evidence to the effect that Lyon Street was obstructed only during hours the Dinette offered disco-dancing, and further that the Department had received citizen complaints about parking, noise and frightening crowds only during those same late night, early morning weekend hours.\nNo evidence countered the foregoing so as to indicate an \u201cinvidious purpose\u201d on the part of defendants in their enforcement of the no-parking ordinance. Absent evidence of a discriminatory purpose or effect, no material issue of fact was raised concerning violation of plaintiffs\u2019 rights to equal protection under the law, see Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 453 (1962) (conscious exercise of some selectivity in enforcement is not necessarily a federal constitutional violation); see also Grace, 320 N.C. at 445, 358 S.E.2d at 376 (\u201cMere laxity in enforcement does not satisfy the elements of a claim of selective or discriminatory enforcement in violation of the equal protection clause.\u201d) (citation omitted), and summary judgment against them on this claim was proper.\nIn view of the foregoing holding, we decline to address plaintiffs\u2019 related contention that because the public nuisance action was instituted with the intent to deprive them of equal protection under the law, their malicious prosecution claim was also cognizable under \u00a7 1983.\nC.\nFinally, although plaintiffs allege their constitutional right to substantive due process was violated by defendants\u2019 conduct, no evidence of record establishes on any defendant\u2019s part the sort of abuses of governmental authority amounting to \u201cconduct which shocks the conscience\u201d necessary to sustain plaintiffs\u2019 claim of a due process violation. See Rochin v. California, 342 U.S. 165, 172, 96 L. Ed. 183, 190 (1952); see also Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (In order to be litigable, substantive due process claims must relate to action which \u201camountjs] to a brutal and inhumane abuse of official power literally shocking to the conscience.\u201d).\nBased on the foregoing, we hold there was no error in the trial court\u2019s entry of summary judgment on plaintiffs\u2019 federal constitutional claims in favor of the City as well as Seagroves and High in both their official and individual capacities.\nConclusion\nFor the reasons discussed hereinabove, the trial court erred by granting summary judgment in favor of defendants Seagroves and the City on plaintiffs\u2019 state tort claim of malicious prosecution. Upon remand, however, plaintiffs are entitled to pursue only compensatory damages against those defendants. The court properly entered summary judgment in favor of all defendants on plaintiffs\u2019 remaining claims.\nAffirmed in part; reversed and remanded in part.\nChief Judge ARNOLD concurs.\nJudge GREENE concurring in part and dissenting in part.", "type": "majority", "author": "JOHN, Judge." }, { "text": "Judge Greene\nconcurring in part and dissenting in part.\nI believe the trial court correctly entered summary judgment for all defendants on each of the claims asserted by the plaintiffs. I therefore disagree with the majority that the trial court erred in granting summary judgment for defendants Seagroves and the City on the malicious prosecution claim.\nThe majority concludes that the nuisance abatement action filed by the district attorney on 1 August 1990 was in fact \u201cinitiated\u201d by the City and Seagroves. I disagree. The civil abatement action, which is the basis of the present malicious prosecution action, was filed pursuant to N.C. Gen. Stat. \u00a7 19-2.1 and the plaintiff in that action was \u201cThe State of North Carolina on relation of David R. Waters, District Attorney.\u201d Although the abatement action is required to be filed in the name of the State, \u201cthe Attorney General, district attorney, or any private citizen of the county,\u201d N.C.G.S. \u00a7 19-2.1 (1983), can \u201cbecome rela-tors and prosecute the-cause in the name of the State.\u201d Dare County v. Mater, 235 N.C. 179, 180-81, 69 S.E.2d 244, 245 (1952). Instead of becoming a relator in the case, Seagroves on behalf of the City presented the information to the district attorney who reviewed the material and \u201cwas satisfied that probable cause existed for the filing of ... a nuisance abatement action\u201d and filed and signed the complaint seeking the injunction. The abatement action was thus \u201cinitiated\u201d by the district attorney and the fact that the City supplied the information to the district attorney is not dispositive. See Hawkins v. Webster, 78 N.C. App. 589, 593, 337 S.E.2d 682, 685 (1985) (action of defendants in procuring earlier civil action filed by third party did not constitute \u201cinitiation\u201d within meaning of malicious prosecution).", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge Greene" } ], "attorneys": [ "Glenn, Mills & Fisher, P.A., by Stewart W. Fisher, for plaintiffs-appellants.", "McDaniel & Anderson, by William E. Anderson, for defendants-appellees." ], "corrections": "", "head_matter": "JAMES Y. MOORE, trading and doing business as MOORE\u2019S DINETTE, and GRACYE MOORE, Plaintiffs-Appellants v. CITY OF CREEDMOOR, RALPH D. SEAGROVES, Individually and as CHIEF OF POLICE of the CITY OF CREEDMOOR, and VANCE DOUGLAS HIGH, Individually and as a COMMISSIONER OF THE CITY OF CREEDMOOR, Defendants-Appellees\nNo. 939SC1073\n(Filed 5 September 1995)\n1. Malicious Prosecution \u00a7 4 (NCI4th)\u2014 malicious prosecution claim based on civil nuisance action \u2014 action \u201cinitiated\u201d by defendants\nNotwithstanding that the prior proceeding herein was a civil nuisance action, evidence considered in the light most favorable to plaintiffs tending to show defendants \u201cinitiated\u201d or \u201cinstituted, procured or participated in\u201d that action would suffice, for purposes of surviving summary judgment, to present the first element of a malicious prosecution claim.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 7, 10.\n2. Malicious Prosecution \u00a7 17 (NCI4th)\u2014 nuisance abatement action \u2014 initiation by police chief \u2014 sufficiency of evidence\nThe evidence was sufficient to raise a genuine issue of material fact regarding whether defendant police chief \u201cinitiated\u201d or \u201cinstituted, procured, or participated in\u201d an earlier nuisance abatement action upon which this malicious prosecution action was based where it tended to show that, at a meeting of the City Board of Commissioners, defendant suggested that plaintiffs\u2019 dinette be declared a public nuisance and permanently closed; in support of his proposal, defendant submitted a collection of police reports concerning the dinette and its patrons which officers had compiled over the years at his direction; after the Board passed a resolution requesting the district attorney to undertake a nuisance abatement action, defendant himself took that document and the list of incidents from the police log to the district attorney; and defendant characterized himself as \u201cthe motivating force\u201d behind the nuisance action.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 139, 140, 150, 184.\n3. Malicious Prosecution \u00a7 17 (NCI4th)\u2014 nuisance abatement action \u2014 initiation by defendants \u2014 sufficiency of evidence\nThe evidence was sufficient to raise a genuine issue of material fact regarding whether defendant city initiated an earlier nuisance abatement action upon which this malicious prosecution action was based where it tended to show that the Board of Commissioners frequently discussed closing plaintiffs\u2019 dinette; the Board member who served as Police Commissioner often met in conference with the police chief and spoke about the \u201cproblem\u201d the dinette was creating in the community; the Board discussed specific methods of closing the dinette on numerous occasions; when presented with the police chiefs recommendation, the Board voted to adopt the resolution and directed the chief to confer with the district attorney about the matter; and at all times the chief acted as the agent and employee of the police department and acted within the course and scope of his agency.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 139, 140, 150, 184.\n4. Malicious Prosecution \u00a7 17 (NCI4th)\u2014 nuisance abatement action \u2014 initiation by defendant city commissioner\u2014 insufficiency of evidence\nThe evidence was insufficient to raise a genuine issue of material fact regarding whether defendant city commissioner initiated an earlier nuisance abatement action upon which this malicious prosecution action was based where defendant was no . longer a commissioner and thus neither voted on nor was involved in the passage of the resolution requesting the district attorney to institute the nuisance abatement action.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 139, 184.\n5. Malicious Prosecution \u00a7 19 (NCI4th)\u2014 evidence of presence and absence of probable cause for underlying action\u2014 summary judgment improper\nSince the evidence before the trial court reflected both the presence and absence of probable cause for the bringing of a pub-lie nuisance abatement action by defendants, the trial court in a malicious prosecution action erred in entering summary judgment in favor of defendants.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 159, 169, 184.\n6. Malicious Prosecution \u00a7 19 (NCI4th) \u2014 absence of probable cause \u2014 sufficiency of evidence of malice\nSince the evidence raised a justiciable issue of fact as to whether defendants initiated a nuisance abatement action without probable cause, and based upon the inference of implied malice arising from evidence of the absence of probable cause, plaintiffs presented sufficient factual evidence to support an award of compensatory damages and to withstand defendants\u2019 motion for summary judgment in the malicious prosecution action.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 152, 169, 184.\n7. Malicious Prosecution \u00a7 21 (NCI4th)\u2014 action based on prior civil proceeding \u2014 sufficiency of evidence of special damages\nThe evidence was sufficient to forecast the sort of special damages necessary when a malicious prosecution action is based upon a prior civil proceeding where the uncontroverted evidence showed that plaintiffs\u2019 disco-dancing business was enjoined from operation for seven months pending trial.\nAm Jur 2d, Malicious Prosecution \u00a7 10.\n8. Municipal Corporations \u00a7\u00a7 444, 446 (NCI4th)\u2014 claim against city \u2014 no governmental immunity \u2014 claim against police chief \u2014 no governmental immunity \u2014 issue as to whether conduct corrupt of malicious\nPlaintiffs\u2019 malicious prosecution claim against defendant city was not barred by governmental immunity where the city had purchased liability insurance; nor was their claim against defendant police chief barred in his official capacity, as public officers share in the immunity of their governing municipality, or in his individual capacity, as the evidence raised an issue of material fact as to whether his conduct was corrupt or malicious.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 37, 38.\nLiability or indemnity insurance carried by governmental unit as affecting immunity from tort liability. 68 ALR2d 1437.\n9.Intentional Infliction of Mental Distress \u00a7 2 (NCI4th)\u2014 intentional infliction of emotional distress \u2014 insufficiency of evidence of outrageous conduct\nThe trial court did not err in allowing the motion for summary judgment by defendant city and defendant police chief with respect to plaintiffs\u2019 intentional infliction of emotional distress claim where plaintiffs\u2019 evidence that defendants \u201cmanufactured\u201d complaints about plaintiffs\u2019 business, sought and obtained an injunction for the abatement of a nuisance, and shut plaintiffs\u2019 dance and disco business down for seven months did not raise a question of fact as to whether defendants\u2019 conduct was \u201cextreme and outrageous,\u201d nor was there evidence that defendants intended for plaintiffs to suffer severe emotional distress.\nAm Jur 2d, Fright, Shock, and Mental Disturbance \u00a7\u00a7 4, 5.\nModern status of intentional infliction of mental distress as independent tort; \u201coutrage\u201d. 38 ALR4th 998.\n10. Constitutional Law \u00a7 86 (NCI4th)\u2014 monetary damages for alleged violations of constitutional rights \u2014 no relief against city or city employees in official capacities\nBecause plaintiffs sought monetary damages for alleged violation of their constitutional, rights, they were not entitled to relief under 42 U.S.C. \u00a7 1983 against a city or the individual defendants in their official capacities, as the city and the individual defendants were not \u201cpersons.\u201d\nAm Jur 2d, Civil Rights \u00a7 4.\nSupreme Court\u2019s views as to who is \u201cperson\u201d under civil rights statute (42 USCS sec. 1983) providing private right of action for violation of federal rights. 105 L. Ed. 2d 721.\n11. Constitutional Law \u00a7 115 (NCI4th)\u2014 violation of constitutional rights by city employees \u2014 matter of public concern outweighed by governmental interest\nThe trial court properly granted summary judgment for the defendant police commissioner and defendant police chief in their individual capacities on plaintiffs\u2019 claims that defendants violated their First Amendment right to free speech and to petition the government for redress of grievances, since there was no showing that plaintiffs complaints about the police department\u2019s handling of his calls for assistance pertained to a matter of public concern which outweighed the governmental interest in efficient operations.\nAm Jur 2d, Consitutional Law \u00a7\u00a7 496, 501, 510.\n12. Constitutional Law \u00a7 86 (NCI4th)\u2014 alleged racial discrimination \u2014 summary judgment for defendants proper\nSummary judgment was properly granted for. defendant police commissioner and defendant police chief in their individual capacities on .plaintiffs\u2019 claim that their Fourteenth Amendment right to equal protection was violated by defendants\u2019 conspiracy to discriminate against them on the basis of race and defendants\u2019 selective enforcement of a no parking ordinance.\nAm Jur 2d, Civil Rights \u00a7 3; Constitutional Law \u00a7\u00a7 735, 738.\nJudge Greene concurring in part and dissenting in part.\nAppeal by plaintiffs from summary judgment entered 25 May 1993 by Judge B. Craig Ellis in Granville County Superior Court. Heard in the Court of Appeals 26 May 1994.\nGlenn, Mills & Fisher, P.A., by Stewart W. Fisher, for plaintiffs-appellants.\nMcDaniel & Anderson, by William E. Anderson, for defendants-appellees." }, "file_name": "0027-01", "first_page_order": 61, "last_page_order": 87 }