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NO. COA11-905 NORTH CAROLINA COURT OF APPEALS Filed: 7 February 2012 KRISTA DAWN COX et al., Plaintiffs, v. DAVID ROACH et al., Defendants. Forsyth County No. 10 CVS 4366

1.

Immunity -- sovereign -- Virginia -- comity -- encouraged in North Carolina -- no evidence of consent to suit The trial court did not err in allowing defendant University of Virginia's (UVA) motion to dismiss a false arrest, false imprisonment, battery, malicious prosecution, violation of the North Carolina Constitution, conversion, and conspiracy case on the ground of sovereign immunity. Virginia's extension of sovereign immunity to UVA is in line with North Carolina's public policy, comity is encouraged in North Carolina as long as extending comity to a particular situation would not be against public policy, and plaintiffs did not contend nor was there any evidence that defendant UVA consented to the suit.

2.

Pretrial Proceedings -- motion for continuance denied -- no abuse of discretion The trial court did not abuse its discretion in a false arrest, false imprisonment, battery, malicious prosecution, violation of the North Carolina Constitution, conversion, and conspiracy case by denying plaintiffs' motions for continuance of summary judgment motion in order to complete necessary discovery. Plaintiffs failed to state a valid reason for the necessity of a continuance after approximately ten months of litigation, and plaintiffs did not direct the Court of Appeals' attention to any evidence which forecasted prejudice they may have suffered due to the failure of the trial court to allow a continuance.

3.

False arrest -- false imprisonment -- probable cause -- bond summary judgment proper The trial court did not err in a false arrest, false imprisonment, battery, malicious prosecution, violation of the North Carolina Constitution, conversion, and conspiracy case by granting summary judgment in favor of defendants Roach, Adkins, Schatzman, and Hartford. Roach, Adkins, and Schatzman acted with probable cause in determining there was a probability or substantial chance of criminal activity and on such a basis obtaining and acting on the search and arrest warrants. Thus, the claim against Hartford for a bond based upon defendants unfaithful performance and violation of their duties necessarily failed.

NO. COA11-905 NORTH CAROLINA COURT OF APPEALS Filed: 7 February 2012 KRISTA DAWN COX et al., Plaintiffs, v. DAVID ROACH et al., Defendants. Forsyth County No. 10 CVS 4366

Appeal by plaintiffs from orders entered 17 December 2010 by Judge R. Stuart Albright and 25 April 2011 by Judge Judson D. DeRamus, Jr. in Superior Court, Forsyth County. Court of Appeals 14 December 2011. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiffs-appellants. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James C. Adams, II, John S. Buford, and Clint S. Morse, for defendants-appellees David Roach and The Rector & Visitors of the University of Virginia. The Forsyth County Attorney's Office, by Kevin J. McGuckin, for defendant-appellees Joe William Adkins, Jr., William T. Schatzman and the Hartford Fire Insurance Company. STROUD, Judge. Plaintiffs appeal trial court orders allowing a motion to dismiss and granting a summary judgment motion in favor of Heard in the

-2defendants which resulted in the dismissal of all of plaintiffs' claims. For the following reasons, we affirm. I. Background

On 9 and 11 June 2010, plaintiff filed two complaints with different file numbers against defendants1 bringing causes of action for false arrest, false imprisonment, battery, malicious prosecution, violation of the North Carolina Constitution,

conversion, conspiracy, and recovery under the sheriff's bond. On or about 8 July 2010, defendants Joe Williams Adkins, Jr. ("Adkins") plaintiffs' and William T. Schatzman ("Schatzman") denied the answered material

complaint

and

substantially

allegations therein; defendants Adkins and Schatzman also raised various defenses. answered On or about 20 August 2010, also defendant alleged

Travelers

plaintiffs'

complaint

and

various defenses.

On 25 October 2010, Hartford Fire Insurance

Company ("Hartford") was substituted for defendant Travelers. On or about 29 October 2010, defendant David Roach ("Roach") answered material plaintiffs' allegations; complaint defendant by substantially also denying the

Roach

asserted

various

defenses and made a motion to dismiss.
1

Also on or about 29

At the time of the filing of the 9 and 11 June 2010 complaints, defendants included Travelers Insurance Company ("Travelers"); however, defendant Hartford Fire Insurance Company was later substituted for Travelers.

-3October 2010, defendant The Rector and Visitors of the

University of Virginia ("UVA") made a motion to dismiss alleging several defenses, including sovereign immunity. On 22 November AMENDED 2010, plaintiff FOR filed a "MOTION TO The

SUBSTITUTE

COMPLAINT

ORIGINAL

COMPLAINT[.]"

amended complaint alleged: 10. A principal business of plaintiff is to recover x-ray films from hospital radiology departments which are being discarded, to remove and shred all papers containing patient identification and medical information, to process and dissolve the film with heated chemicals, and remove therefrom silver, which this plaintiff sells. Over the years plaintiff Chesapeake Microfilm, Inc., has provided these services for hundreds of hospitals. 11. At all times material hereto, plaintiffs Krista Dawn Cox and Joshua Scott Wallace were employees of plaintiff Chesapeake Microfilm, Inc. . . . . 13. On or about June 1, 2007, plaintiff Krista Dawn Cox called defendant University of Virginia's radiology department and asked if there were any radiological film to be discarded. An agent and employee of defendant University of Virginia, then and there acting within the course and scope of his authority, told Krista Dawn Cox that defendant University of Virginia had 32 drums of radiological film that was being discarded and needed to be picked up. Arrangements were made between plaintiff Krista Dawn Cox and this employee

-4of defendant University of Virginia for the film to be picked up on June 2, 2007. 14. On June 2, 2007, pursuant to the above arrangements, plaintiff Joshua Scott Wallace, driving a truck belonging to plaintiff Chesapeake Microfilm, Inc., went to the radiology department of defendant University of Virginia in Charlottesville, Virginia; with the assistance of employees of defendant University of Virginia, who were then and there acting within the course and scope of their agency and authority, picked up the 32 barrels of radiological film, which defendant University of Virginia desired to discard; and transported that film back to the place of business of plaintiff Chesapeake Microfilm, Inc., in Forsyth County, North Carolina. 15. Soon after the radiological film from defendant University of Virginia arrived at the place of business of plaintiff Chesapeake Microfilm, Inc., employees of this plaintiff shredded and destroyed the paper film jackets and all other paper accompanying the film bearing any identifying information of patients or medical information of any type. . . . . 17. On June 13, 2007, defendants David Roach and the University of Virginia, knowing that plaintiffs had been acting lawfully in all respects and had not violated the laws of any jurisdiction, caused to be issued a felony warrant of arrest for plaintiff Joshua Scott Wallace, charging him with theft in violation of Article 18.2-95 of the Code of Virginia. 18. On June 26, 2007, defendants David Roach and the University of Virginia,

-5knowing that plaintiffs had been acting lawfully in all respects and had not violated the laws of any jurisdiction, caused to be issued a felony warrant of arrest for plaintiff Krista Dawn Cox, charging her with theft in violation of Article 18.2-95 of the Code of Virginia. 19. Defendant David Roach came to Forsyth County, North Carolina, and obtained the assistance and participation of defendants Joe William Adkins, Jr., and William T. Schatzman in arresting plaintiff Joshua Scott Wallace, causing him to be placed in the Forsyth County jail, causing him to be transported to Charlottesville, Virginia, causing him to be placed in a jail in Charlottesville, Virginia, and causing him to be brought to the criminal court of the Commonwealth of Virginia. 20. Defendant David Roach came to Forsyth County, North Carolina, and obtained the assistance and participation of defendants Joe William Adkins, Jr., and William T. Schatzman in arresting plaintiff Krista Dawn Cox, causing her to be placed in the Forsyth County jail, requiring her to drive to Charlottesville, Virginia, causing her to be placed in a jail in Charlottesville, Virginia, and causing her to be brought to the criminal court of the Commonwealth of Virginia. 21. Incidental to the arrest of plaintiff Joshua Scott Wallace, defendants acting in concert and cooperation, arranged for the seizure, and carried out the seizure, of silver owned by plaintiff Chesapeake Microfilm, Inc., from the safe at its place of business with a value of approximately $15,000, approximately 30,000 pounds of radiological film owned by plaintiff Chesapeake Microfilm, Inc., at its

-6place of business with a value of approximately $30,000, a panel truck owned by plaintiff Chesapeake Microfilm, Inc., with a value of approximately $25,000, and silver owned by plaintiff Chesapeake Microfilm, Inc., at the premises controlled by it in Knoxville, Tennessee, with a value of approximately $300,000. 22. Plainly no crime whatever had been committed by plaintiffs or anyone else in connection with the radiological film which defendant University of Virginia was discarding. In the course of making the arrests and the seizures, additional information came to the attention of defendants, which made it even more clear, definite, and certain, that no crime had been committed, or could have been committed. Nevertheless, in the complete absence of probable cause that any criminal activity had taken place, defendants in concert and participation proceeded in the manner described above. Defendants displayed malicious motivations in various ways, including discussing how the forfeitures of the money and property would be split between the law enforcement agencies, trying to coerce a guilty plea from Ronnie W. Cox, the chief executive officer of plaintiff Chesapeake Microfilm, Inc., (even though he had not been and never was charged with any crime), threatening plaintiff Krista Dawn Cox that her father Ronnie W. Cox would be put in prison for the rest of his life if she did not cooperate, timing the arrest of Krista Dawn Cox for a Friday evening to insure that she could not get out of jail until the following Monday, causing false testimony to be given at probable cause hearing in criminal court in Charlottesville, Virginia, and threatening to have additional criminal charges brought against plaintiffs Joshua Scott Wallace and

-7Krista Dawn Cox directly to the grand jury in Charlottesville, Virginia. 23. Plaintiff Joshua Scott Wallace was acquitted for all charges in the circuit court of the city of Charlottesville, Virginia, on July 16, 2008. 24. The charges against Krista Dawn Cox did not come to trial, but defendants have agreed to the entry of an order in the Superior Court of Forsyth County, North Carolina, that no crime was committed in the state of North Carolina, and for the expunction of all of the criminal records of plaintiffs Krista Dawn Cox and Joshua Scott Wallace in the Commonwealth of Virginia. 25. Defendants agreed to, and eventually did, return all of the property of Chesapeake Microfilm, Inc., that had been seized. 26. Defendants made contact with other hospital radiology departments from which plaintiff Chesapeake Microfilm, Inc., picked up radiological film to be discarded on a regular basis. Defendant told these hospitals that the plaintiffs had been engaged in criminal conduct in picking up the radiological film. Directly and proximately as a result of these contacts by defendants, plaintiff Chesapeake Microfilm, Inc., lost one of its most valuable sources for radiological film to be discarded, causing this plaintiff to lose net profit in the amount of approximately $250,000 per year. Plaintiffs brought causes of action for false arrest, false

imprisonment, battery, and malicious prosecution, on behalf of Joshua Scott Wallace ("Wallace") and Krista Dawn Cox ("Cox");

-8conversion on behalf of Chesapeake Microfilm, Inc.

("Chesapeake"); and conspiracy, gross negligence, and recovery under the sheriff's bond on behalf of all plaintiffs. On 29

November 2010, the trial court consolidated the two cases which were a result of the two complaints originally filed under

different file numbers, into one. the trial court granted

On or about 14 December 2010, motion to substitute

plaintiffs'

complaints. On 17 December 2010, the trial court allowed UVA's motion to dismiss based upon sovereign immunity. On or about 21

December 2010, defendant Hartford answered plaintiffs' complaint and raised various Roach defenses. On or about amended 13 January 2011, again

defendant

answered

plaintiffs'

complaint

substantially denying the material allegations of plaintiffs' complaint and asserting various defenses. On or about 10 March 2011, defendant Roach made a motion for summary judgment "based on the existence of probable cause." On or about 18 March 2011, defendants Adkins, Schatzman, and Hartford made a motion for summary judgment "based upon the

existence of probable cause, public officer's immunity, [and] qualified immunity[.]" Thus, all defendants remaining in the Plaintiffs made a

case filed a motion for summary judgment.

-9"MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT HEARING IN ORDER TO OBTAIN EVIDENTIARY MATERIALS PURSUANT TO RULE 56(f) OF THE RULES OF CIVIL PROCEDURE" ("Rule 56(f) motion"). On 25 April 2011,

the trial court denied plaintiffs' Rule 56(f) motion and granted defendants' motions for summary judgment. dismissed plaintiffs' case with prejudice. The trial court then Plaintiffs appeal

both the 17 December 2010 order allowing defendant UVA's motion to dismiss and the 25 April 2011 order denying plaintiffs' Rule 56(f) motion and granting the remaining defendants' summary

judgment motions. II. Plaintiffs first Motion to Dismiss that the trial court erred in of

contend

allowing defendant UVA's motion sovereign immunity.

to dismiss

on the ground

Rule 12(b)(1) of the Rules of Civil Procedure allows for dismissal based upon a trial court's lack of jurisdiction over the subject matter of the claim. Our Court has held that the defense of sovereign immunity is a Rule 12(b)(1) jurisdiction defense. The standard of review on a motion to dismiss under Rule 12(b)(1) for lack of jurisdiction is de novo. The standard of review on a motion to dismiss under Rule 12(b)(6) is whether, if all the plaintiff[s'] allegations are taken as true, the plaintiff[s are] entitled to recover under some legal theory. Welch Contr'g, Inc. v. N.C. Dep't. of Transp., 175 N.C. App. 45,

-1050, 622 S.E.2d 691, 694 (2005) (citations, quotation marks, and brackets omitted). Sovereign immunity is "[a] government's immunity from being sued in its own courts without its consent." Black's Law

Dictionary 818 (9th ed. 2009); see also Carl v. State, 192 N.C. App. 544, 550, 665 S.E.2d 787, 793 (2008) ("Sovereign immunity protects the State and its agencies from suit absent waiver or consent." (citation and quotation marks omitted)), disc. review and cert. denied, 363 N.C. 123, 672 S.E.2d 684 (2009);

DiGiacinto v. Rector and Visitors of GMU, 704 S.E.2d 365, 370 (Va. 2011) ("Sovereign immunity is an established principle of sovereignty that a sovereign State cannot be sued in its own courts without its consent and permission." (citation, quotation marks, ellipses, and brackets omitted)). The Supreme Court of Virginia has stated, "As an agency of the Commonwealth, UVA is entitled to sovereign immunity under the common law absent an express constitutional or statutory provision to the contrary. or elsewhere."2 There is no such waiver in the Act

The Rector And Visitors v. Carter, 591 S.E.2d Indeed, plaintiffs concede in their brief

76, 78 (Va. 2004).

that "under Virginia law, the University of Virginia would be
2

The "Act" refers to the Virginia Tort Claims Act. See The Rector And Visitors v. Carter, 591 S.E.2d 76, 77 (Va. 2004).

-11shielded by sovereign immunity for the acts it and its agents committed within its own jurisdiction[.]" Therefore, the

question before us as presented by plaintiffs is whether or not the sovereign immunity that applies to the University of Virginia within the confines of that state, spreads to its wrongful conduct outside its own territory and within the boundaries of another sovereign state, the state of North Carolina, when it has been hailed before the courts of that state. In Nevada v. Hall, the Supreme Court concluded that though states were welcome to recognize the sovereign immunity of one another, they were not required to do so. L.Ed. 2d 416 (1979). Alden v. Maine: In Hall we considered whether California could subject Nevada to suit in California's courts and determined the Constitution did not bar it from doing so. We noted that the doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign. We acknowledged that the immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign's own consent could qualify the absolute character of that immunity, that the notion that immunity from suit is an attribute of sovereignty is reflected in our cases, and that this explanation adequately supports the conclusion that no sovereign 440 U.S. 410, 59

Hall was later summarized by the Court in

-12may be sued in its own courts without its consent. We sharply distinguished, however, a sovereign's immunity from suit in the courts of another sovereign: But this explanation affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity. Since we determined the Constitution did not reflect an agreement between the States to respect the sovereign immunity of one another, California was free to determine whether it would respect Nevada's sovereignty as a matter of comity. 527 U.S. 706, 738, 144 L.Ed. 2d 636, 668 (1999) (citations, quotation marks, and brackets omitted). Therefore, though North

Carolina courts are not required to respect Virginia's claim of sovereign immunity, they may do so "as a matter of comity." As to comity, our Supreme Court has stated, While comity is a rule of practice and not a rule of law, it has substantial value in securing uniformity of decision; it does not command, but it persuades; it does not declare how a case shall be decided, but how with propriety it may be decided. It is more than mere deference to the opinion of another, for by virtue of the doctrine rights acquired under a statute enacted or a judgment rendered in one State will be given force and effect in another, if not against Id.

-13public policy; and, as pointed out in R. R. v. Babcock, 154 U.S., 190, 38 Law Ed., 958, to justify a court in refusing to enforce a right which accrued under the law of another State, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens. And this is a matter which each State must decide for itself. In re Chase, 195 N.C. 143, 148, 141 S.E. 471, 473 (citations omitted), cert denied, 278 U.S. 600, 73 L.Ed. 529 (1928); see Cannaday v. Atlantic Coast Line R. Co., 55 S.E. 836, 838 (N.C. 1906) ("[T]he rule of comity is not a right of any state or country, but is permitted and accepted by all civilized

communities from mutual interest and convenience, and from a sense of the inconvenience which would otherwise result, and from moral necessity to do justice in order that justice may be done in return.") Accordingly, comity is encouraged in North

Carolina as long as extending comity to a particular situation would not be against public policy. 141 S.E. at 473. Furthermore, See Chase, 195 N.C. at 148,

the mere fact that the law of the forum differs from that of the other jurisdiction does not mean that the foreign statute is contrary to the public policy of the forum. To render foreign law unenforceable as contrary to public policy, it must violate some prevalent conception of good morals or

-14fundamental principle of natural justice or involve injustice to the people of the forum state. This public policy exception has generally been applied in cases such as those involving prohibited marriages, wagers, lotteries, racing, gaming, and the sale of liquor. Boudreau v. Baughman, 322 N.C. 331, 342, 368 S.E.2d 849, 857-58 (1988) (citations omitted). As North Carolina extends sovereign immunity to its own public universities, we conclude that Virginia's extension of sovereign immunity to UVA is in line with North Carolina's

public policy.

See, e.g., Kawai Am. Corp. v. Univ. of N.C. at

Chapel Hill, 152 N.C. App. 163, 165, 567 S.E.2d 215, 217 (2002) ("The University [of North Carolina at Chapel Hill] is a state agency to which the doctrine of sovereign immunity applies.

Therefore, unless the University consented to suit or waived its immunity (citations regarding these claims, the claims are barred." cite

omitted)).

Furthermore,

although

plaintiffs

Corum v. Univ. of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992) to support the proposition that "sovereign immunity would have been no bar" to their claims in North Carolina, we find Corum to be inapplicable as it was based upon claims under the North Carolina Constitution, and plaintiffs have not raised

-15constitutional claims in this case.3 See id. at 785-86, 413

S.E.2d at 291-92. ("The doctrine of sovereign immunity cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed by the Declaration of

Rights. . . . [W]e hold that plaintiff does have a direct cause of action under the State Constitution for alleged violations of his freedom of speech rights, guaranteed by Article I, Section 14." (emphasis added)), cert. denied, 506 U.S. 985, 121 L.Ed. 2d 431 (1992). Accordingly, we choose to exercise comity as to As plaintiffs do defendant UVA

defendant UVA's claim of sovereign immunity. not contend nor is there any evidence

that

consented to this suit, the trial court did not err in allowing defendant UVA's motion to dismiss, as plaintiffs are barred from recovering against defendant UVA due to sovereign immunity. generally Carl, 192 N.C. App. at 550, 665 S.E.2d at 793.4 See As

3

Plaintiffs' 9 June and 11 June 2010 complaints both had causes of action for violations of the North Carolina Constitution. However, plaintiffs dropped these claims in their amended complaint. Plaintiffs acknowledge that they dropped their constitutional claims as they state in their brief that "[t]he amended complaint . . . eliminated claims for violation of the state constitution."
4

We note that plaintiffs' argument regarding the 17 December 2010 order allowing defendant UVA's motion to dismiss heavily focused on the actions of defendant Roach as an employee of defendant UVA. However, defendant Roach was not a party to the motion to dismiss but was instead dismissed from the case due to

-16such, this argument is overruled. III. Motion for Continuance Plaintiffs next contend that "the Superior Court abused its discretion summary in denying plaintiffs' in all motions to "A for continuance of

judgment

motion in

order caps.)

complete trial

necessary is not

discovery." barred in

(Original every case

court

from

granting

summary

judgment

before

discovery is completed.

Further, the decision to grant or deny

a continuance is solely within the discretion of the trial judge and will be reversed only when there is a manifest abuse of discretion." Young v. Fun Services-Carolina, Inc., 122 N.C.

App. 157, 162-63, 468 S.E.2d 260, 264 (citations and quotation marks omitted), disc. review denied, 344 N.C. 444, 476 S.E.2d 134 (1996). "A trial court may be reversed for abuse of

discretion only upon a showing that its actions are manifestly unsupported by reason." Stovall v. Stovall, ___ N.C. App. ___,

___, 698 S.E.2d 680, 683 (2010) (citation and quotation marks omitted). Plaintiffs' argument focuses on the lack of harm that

would have been created if their motion had been granted; this is irrelevant. The fact that the trial court may have allowed

his own summary judgment motion; therefore, we will consider all arguments regarding defendant Roach when we address plaintiffs' arguments regarding the 25 April 2011 summary judgment order.

-17plaintiffs' motion without abusing its discretion does not mean that the trial court must have abused its discretion by not allowing the motion. valid reason for Furthermore, plaintiffs fail to state a the necessity of a continuance after

approximately ten months of litigation, and plaintiffs do not direct this Court's attention to any evidence which forecasts prejudice they may have suffered due to the failure of the trial court to allow a continuance; accordingly, we do not conclude that the trial court abused its discretion. See Young, 122 N.C.

App. at 162-63, 468 S.E.2d at 263-64 (determining that the trial court had not erred in granting a summary judgment motion simply "because discovery was incomplete": "Plaintiffs filed their

complaint on 18 April 1994. Summary judgment was granted in a judgment filed 16 March 1995, fully eleven months later. There

is no evidence in the record that the trial judge abused her discretion in granting the motion for summary judgment, and we hold that she did not.") IV. Lastly, Motion for Summary Judgment contend the trial court erred in

plaintiffs

granting summary judgment in favor of defendants Roach, Adkins, Schatzman, and Hartford. We review a trial court order granting or denying a summary judgment motion on a de

-18novo basis, with our examination of the trial court's order focused on determining whether there is a genuine issue of material fact and whether either party is entitled to judgment as a matter of law. As part of that process, we view the evidence in the light most favorable to the nonmoving party. Arrington v. Martinez, ___ N.C. App. ___, ___, 716 S.E.2d 410, 414 (2011) (citations, quotation marks, and brackets omitted). Plaintiffs argue that defendants Roach, Adkins, and Schatzman acted without probable cause. Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances strong in themselves to warrant a cautious man in believing the accused to be guilty. The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. State v. Teate, 180 N.C. App. 601, 606-07, 638 S.E.2d 29, 33 (2006) (citations, quotation marks, and brackets omitted). As

to search warrants, it has been said that "[t]he existence of probable cause is a commonsense, practical question that should be answered using a totality-of-the-circumstances approach.

Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely

-19true than false." S.E.2d 868, 874-75 State v. McKinney, 361 N.C. 53, 62, 637 (2006) (citations and quotation marks

omitted).

Virginia law is in accord with North Carolina law as

it has determined that as to arrests probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. The determination of probable cause by police officers depends upon practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act[.] West v. Com., 678 S.E.2d 836, 840 (Va. Ct. App. 2009) (citation and quotation marks omitted) and as to search warrants [p]robable cause, as the very name implies, deals with probabilities. These are not technical; they are factual and practical considerations in every day life on which reasonable and prudent men, not legal technicians, act. Probable cause exists where the totality of the circumstances set forth in the affidavit supports a common sense decision by the magistrate that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Because it is a fluid concept based on probabilities, the continued existence of probable cause at a particular time is

-20dependent upon the circumstances. So long as probable cause continues to exist, the search will be valid. Maye v. Com., 605 S.E.2d 353, 362 (Va. Ct. App. 2004)

(citations, quotation marks, and brackets omitted). A. Defendant Roach As to defendant Roach, plaintiffs contend that he "knew, or recklessly failed to realize, that he was presenting false and misleading information to the magistrates and judges" in

obtaining warrants.

Plaintiffs direct this Court's attention to

Franks v. Delaware, 438 U.S. 154, 57 L.E. 2d 667 (1978) arguing Franks and its progeny make it plain that, as a constitutional matter, officers cannot be insulated from inquiry into the truthfulness [of] their affidavits and testimony supporting warrants. The court held that where a substantial preliminary showing is made that a false statement was knowingly or recklessly made and is included in the affidavit or testimony to support the warrant, and if that statement is necessary to a finding of probable cause, the subject of the warrant is entitled to a hearing to challenge the truthfulness of the factual statements. In Franks, the Supreme Court actually stated, There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must

-21be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. Id. at 171-72, 57 L.E. 2d at 682 (footnote omitted). turn to plaintiffs' "offer of proof" showing We thus

"deliberate

falsehood or . . . reckless disregard for the truth" on behalf of defendant Roach. Id. at 171, 57 L.E. 2d at 682.

Plaintiffs' first piece of self-proclaimed "ample evidence" is that defendant Roach informed the court "that plaintiff . . . Wallace had given false identification, handing the security

-22guard a business card and telling him he was from a company located in Roanoke." video recording, However," in truth, as is evidenced by a Wallace handed nothing to the

plaintiff

security guard and "indeed plaintiff Wallace's hands were in his pockets the entire time of the discussion." Plaintiffs fail to

direct our attention to any evidence in the record, such as an affidavit or the alleged videotape, which would substantiate

their assertions. "offer of proof."

Plaintiffs have thus failed to provide an Id. Furthermore, even if such evidence were

before us, we do not find it to be the sort of evidence which would eviscerate probable cause on behalf of defendant Roach; rather, this would be evidence that the security guard either mistakenly remembered his interaction with plaintiff Wallace or at worst, fabricated it; in either case it does not implicate defendant Roach. Second, plaintiffs argue that "[w]hen defendant Roach was shown the tape and saw that no card had been handed by Mr. Wallace to the security guard, defendant Roach said, `I guess he lied, too.'" Plaintiff's evidence here is based upon the

deposition of Ronnie Cox ("Mr. Cox"), president of Chesapeake, wherein Mr. Cox admits he was not present for the statement by defendant Roach but was informed of it by another individual.

-23Accordingly, such evidence is hearsay, and is not properly

considered during a summary judgment hearing or by this Court. See Rankin v. Food Lion, ___ N.C. App. ___, ___, 706 S.E.2d 310, 315 (2011) (considering a summary judgment motion before the trial court and stating "hearsay [is] a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted" and determining that documents containing hearsay were "inadmissible at trial and were properly ignored by the trial court" and thus "[i]n view of the inadmissibility we need not of the

documents

upon

which

Plaintiff

relies, their

address

Plaintiff's

arguments

concerning

legal

significance"

(quotation marks omitted)). Third, [p]laintiff Wallace left about 20 empty barrels at the University of Virginia Medical Center, when he picked up the full barrels of film. Later, defendant Roach and his colleagues listed the empty barrels as evidence which link plaintiffs to the alleged "crime scene." It is entirely inconsistent with criminal behavior for plaintiff Wallace to have left behind empty containers that could have been traced to his place of work. Though we could list ad nauseam the numerous cases in which criminals have left behind evidence linking them to the crime

-24scene, we will not do so here. Suffice it to say that we do not

conclude that plaintiffs leaving evidence at the crime scene is necessarily evidence of an innocent intent such that defendant Roach did not have probable cause to believe that a crime had been committed. Next, plaintiffs note that the arrest warrants for Mr. Cox were eventually "quashed on the basis of mistaken identity[;]" the "mistake could have been avoided if the University's staff had done what it should have done, by calling a supervisor or a manager prior to allowing made clear the his film loading to proceed[,]" and his

"Defendant

Roach

personal

animosity

personal intention of harming the plaintiffs[;]" and "defendants Roach and Adkins were overheard discussing how the forfeiture of money and property agencies." would We be do split not between any the of two law

enforcement

find

plaintiffs'

remaining arguments to be persuasive or to have any impact on a determination of probable cause: The fact that Mr. Cox's arrest

warrants were quashed for mistaken identity has no bearing on whether defendant Roach acted with probable cause regarding

plaintiffs; whether this "mistake" could have been avoided is also irrelevant in analyzing whether defendant Roach acted with probable cause; any "animosity" or bad intent on the part of

-25defendant Roach towards plaintiffs would still not demonstrate that defendant Roach acted without probable cause; and

defendants Roach's and Adkins'

discussion regarding splitting

"the forfeiture of money and property" is entirely consistent with defendant Roach's belief that there was probable cause, that plaintiffs would be convicted, and thus the law enforcement agencies would be able to keep the money and property. Franks, 438 U.S. at 171, 57 L.E. 2d at 682 (stating See that

"mistake[s]" and "deliberate falsity or reckless disregard" on the part of those other than the affiant are insufficient bases to challenge probable cause). not presented a single piece In conclusion, plaintiffs have of evidence indicating that a

defendant Roach lacked probable cause;

i.e., that he told

"deliberate falsehood or . . . "reckless[ly] disregard[ed] . . . the truth[.]" Id.

Here, plaintiffs do not contest that defendant Roach was informed that some property was stolen; furthermore, plaintiffs do not claim that they did not take the missing property, but instead conclude argue that that the taking Roach was acted lawful. with Accordingly, probable cause we in

defendant

determining there was "a probability or substantial chance of criminal activity" and on such a basis obtaining and acting on

-26the search and arrest warrants. Teate, 180 N.C. App. at 606-07,

638 S.E.2d at 33; see McKinney, 361 N.C. at 62, 637 S.E.2d at 874-75, Here, plaintiffs brought causes of action against defendant Roach for false arrest, false imprisonment, battery, malicious prosecution, gross negligence, conversion, and conspiracy.

Plaintiffs have not made allegations of conduct out of the norm for law enforcement officers in performing their duties; thus, all of plaintiffs' claims against defendant Roach stem from the normal course of search, arrest, and prosecution thereafter.

However, "[p]robable cause is an absolute bar to a claim for false arrest." Williams v. City of Jacksonville Police Dept.,

165 N.C. App. 587, 596, 599 S.E.2d 422, 430 (2004). Furthermore, probable cause is also a bar for recovery for false imprisonment in both North Carolina and Virginia. See

Thomas v. Sellers, 142 N.C. App. 310, 316, 542 S.E.2d 283, 287 (2001) ("Officer Morton had probable cause to make the arrest, and the trial court did not err in granting summary judgment dismissing plaintiff's claim for false imprisonment."); Lewis v. Kei, 708 S.E.2d 884, 891 (Va. 2011) ("Kei had sufficient, if minimal, probable cause to obtain the warrant, properly issued by the magistrate, under which Lewis was arrested. Thus, we

-27hold that Kei did not falsely imprison Lewis[.]"). As plaintiffs' claims for battery hinge upon the "bodily contact" due to the alleged claims false arrest fail. and imprisonment, See State v.

plaintiffs'

battery

must

also

Thompson, 27 N.C. App. 576, 577-78, 219 S.E.2d 566, 568 (1975) ("A battery is the unlawful application of force to the person of another by the aggressor himself or by some substance which he puts in motion." (emphasis added)), disc. review denied, 289 N.C. 141, 220 S.E.2d 800 (1976); 258, 261 (Va. which 2003) is ("The tort Koffman v. Garnett, 574 S.E.2d of battery to, is an unwanted nor

touching

neither

consented

excused,

justified.") Plaintiffs However, Wallace cause and is Cox a were to prosecuted a claim in for Virginia. malicious

probable

bar

prosecution in Virginia.

See O'Connor v. Tice, 704 S.E.2d 572,

575 (Va. 2011) ("To prevail in a malicious prosecution action, Tice had to prove by a preponderance of the evidence that the prosecution was (1) malicious, (2) instituted by or with the cooperation of the O'Connors, (3) without probable cause, and (4) terminated in a manner not unfavorable to him." (emphasis added)). Furthermore, plaintiffs' claims for gross negligence are

-28dependent upon defendant Roach falsely arresting, falsely

imprisoning, battering, and maliciously prosecuting plaintiffs. Plaintiffs negligence, alleged when he that defendant "Roach acted with gross

committed

actions

that

caused

criminal

process to be issued against" plaintiffs.

As the "criminal

process" plaintiffs were subject to was lawful, plaintiffs have no wrongful action upon which to base their claim of gross

negligence. Probable conversion cause would an also be a bar to conversion of as

requires

"unauthorized"

taking

property.

Stratton v. Royal Bank of Canada, ___ N.C. App. ___, ___, 712 S.E.2d 221, 227 (2011) ("A conversion is an unauthorized

assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights."

(emphasis added) (citation and quotation marks omitted)). Lastly, plaintiffs' conspiracy claim was also dependent on plaintiffs' other claims which we have already rejected.

Plaintiffs alleged "[e]ach of the defendants agreed with each of the other defendants, to do unlawful acts, including committing false arrests and false imprisonments, committing batteries, As

committing malicious prosecutions, and converting property."

-29we have already determined that none of plaintiffs' other claims would entitle them to relief, this conspiracy claim must also fail. As plaintiffs are not "entitled to recover" upon any of their claims against defendant Roach, the trial court properly granted summary judgment in defendant Roach's favor.5 Welch

Contracting, 175 N.C. App. at 50, 622 S.E.2d at 694. B. Defendants Adkins and Schatzman As to defendants Adkins and Schatzman, plaintiffs also

argue that they acted without probable cause; plaintiffs present no evidence to support their assertion beyond that offered

regarding defendant Roach.

As we have already determined that

plaintiffs' evidence is not sufficient to show a "deliberate falsehood or [a] reckless disregard for the truth[,]" Franks at 171, 57 L.E. 2d at 682, on the part of defendant Roach, it is certainly not enough to show the same for defendants Adkins and Schatzman; not only do the facts regarding defendant Roach

support our determination that defendants Adkins and Schatzman acted with probable cause, but defendants Adkins and Schatzman had an additional basis for probable cause as they were properly relying on the statements and actions in obtaining warrants made
5

As we have concluded that the trial court properly granted summary judgment in favor of defendant Roach on the basis of probable cause, we need not address plaintiffs' arguments regarding defendant Roach and sovereign immunity.

-30by another law enforcement officer acting with probable cause, defendant Roach. The causes of action against defendant Adkins as those against defendant Roach As we have already determined that

and Schatzman are the same except for gross negligence.

all of the torts claimed against defendant Roach were properly dismissed via summary judgment upon the basis of probable cause, we conclude the same as to defendant Adkins and Schatzman. C. Defendant Hartford Lastly, while it is unclear exactly which causes of action plaintiffs are bringing against defendant Hartford, it is

apparent that defendant Hartford is the insurance company which provided a public official bond for defendants Adkins and

Schatzman; thus defendant Hartford could only be liable to the extent of any wrongful conduct on the part of defendants Adkins and Schatzman. As we have already determined that all of the

causes of action against defendants Adkins and Schatzman were properly disposed of through the trial court's summary judgment order on the basis of probable cause, and the only remaining claim against and Hartford Schatzman's is for a bond based upon defendants . . .

Adkins'

"unfaithful

performance

and

violation of their duties[,]" this cause of action must also necessarily fail as defendants Adkins and Schatzman were acting

-31with probable cause, and thus not in violation of their duties, so that the trial court properly granted summary judgment in favor of defendant Hartford. V. Conclusion

For the foregoing reasons, we conclude that the trial court properly allowed defendant UVA's motion to dismiss on the

grounds of sovereign immunity, properly denied plaintiffs' Rule 56(f) motion, and properly granted summary judgment in favor of defendants Roach, Adkins, Schatzman, and Hartford on the grounds of the existence of probable cause. AFFIRMED. Judges BRYANT and CALABRIA concur. Therefore, we affirm.



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