               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-357

                                Filed: 18 October 2016

Guilford County, No. 15 CVS 2951

JASON FULLWOOD, Plaintiff,

              v.

SHON F. BARNES, Individually and in his Official Capacity, Defendant.


      Appeal by defendant from order entered 9 October 2015 by Judge Anderson D.

Cromer in Guilford County Superior Court.         Heard in the Court of Appeals 21

September 2016.


      Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiff-
      appellee.

      Office of the City Attorney, by James A. Clark and Marion J. Williams, certified
      legal intern pursuant to 27 N.C.A.C. 1C.0207, for defendant-appellant.


      TYSON, Judge.


      Shon F. Barnes (Shawn F. Barnes) (“Defendant”) appeals from order denying

his motion for summary judgment. We affirm in part, reverse in part, and remand.

                                I. Factual Background

      Greensboro Police Department Captain Shon F. Barnes arrested Plaintiff on

31 January 2014 for felony possession and intent to sell and deliver cocaine,

maintaining    dwelling   for   controlled   substances,   and   possession   of   drug

paraphernalia. Plaintiff’s arrest occurred after a raid of premises located at 310 West
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                                  Opinion of the Court



Meadowview Street (“Heritage House”), a privately-owned, multi-unit apartment

building.   More than thirty individuals owned, maintained, and rented their

respective apartments in Heritage House. The common areas were maintained by a

homeowner’s association (“HOA”).      Plaintiff’s father owned twenty units located

within Heritage House, which Plaintiff managed. Plaintiff maintained an office on

the third floor of Heritage House and visited the property on a regular basis.

      The Greensboro Police Department (“GDP”) designated the neighborhood

surrounding Heritage House to be a “district crime priority, with drug sales and social

disorder as the underlying cause of the problem.” This designation was implemented

after 865 calls for police response concerning incidents occurring near Heritage House

were received within one year. Many of these calls involved illegal drug sales.

      GDP officers met with Heritage House unit owners upon multiple occasions

and requested the owners consider changing their rental policies to reduce crime.

Landlords were asked to submit a list of their tenants to the HOA. The GDP also

requested that homeowners require all adult guests and visitors to present photo

identification at the front desk or when they were approached by a police officer on

the grounds. Plaintiff was present for at least one of these meetings.

      On 31 January 2014, the GDP conducted a raid on Heritage House involving

approximately 65 law enforcement officers and executed search warrants on five

different units, including unit 308 managed by Plaintiff. Plaintiff arrived at the unit



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shortly after the raid began. The search of unit 308 yielded 25 dosage units of crack

cocaine, various drug paraphernalia, and a significant quantity of cash found inside

a hat. None of these items were tied or connected directly to Plaintiff.

      No one was present inside unit 308 at the time the search occurred and the

unit was found to be in uninhabitable condition. Another officer informed Defendant

the unit was vacant. Defendant questioned Plaintiff about unit 308 prior to arresting

him. Defendant’s affidavit stated Plaintiff never informed Defendant that documents

showing the identity of the renter of unit 308 were available and Plaintiff was unable

to name any tenant or occupant living there.

                                  A. Defendant’s Affidavit

      Defendant’s affidavit stated he was aware of Plaintiff’s previous convictions for

drug related offenses, and that Plaintiff had failed to make good faith efforts to stop

the use of his father’s units for drug dealing and prostitution. Defendant also believed

Plaintiff was personally engaged in drug activity and was a member of the Bloods

criminal gang. Defendant alleged his belief upon Plaintiff’s tendency to wear red and

black clothing, indicative of membership in the Bloods. Defendant also alleged that

North Carolina Department of Corrections (“DOC”) records indicated DOC personnel

had confirmed Plaintiff’s membership in the Bloods gang, while Defendant was

incarcerated. Defendant also asserted Plaintiff had previously impeded police officers




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by intervening on behalf of tenants occupying his units, and by refusing to cooperate

with officers or by providing information concerning criminal investigations.

      Based upon his previous knowledge of Plaintiff and the results of the search

and seizure of contraband from unit 308, Defendant instructed an officer to call the

magistrate and request a finding of probable cause to arrest Plaintiff. The magistrate

found probable cause and issued an order for Plaintiff’s arrest.        Plaintiff was

handcuffed and transported to the Guilford County Jail. Defendant’s affidavit claims

Plaintiff was cooperative and no force was needed to detain or arrest him.

                                B. Plaintiff’s Affidavit

      Plaintiff denies many of the statements contained in Defendant’s affidavits.

Plaintiff submitted an affidavit to deny Defendant’s allegations and to “correct some

of the false statements” made in the Defendant’s affidavits. In particular, Plaintiff

alleges he possessed lease records for unit 308 and offered to retrieve them for

Defendant when he was questioned about tenants of the unit, but Defendant had

refused Plaintiff’s request to retrieve that information.

      Plaintiff also denied statements in both the HOA’s president’s and landlord’s

affidavits, which asserted Plaintiff was “always in a hurry to go upstairs” and

appeared to be sneaking into the building. Plaintiff counters he had no reason to

sneak into the building and was present at Heritage House between four and five

times a week to manage the twenty units his father owned.



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      Plaintiff’s affidavit claims he cooperated with the HOA’s requests to provide a

complete tenant list, and had worked to make Heritage House “a better place.”

Plaintiff felt harassed by police officers, who patrolled Heritage House. Plaintiff was

constantly required to present photo identification, even though the officers knew his

identity and that he managed several of the Heritage House units. Plaintiff asserted

he was not concerned about being searched by officers patrolling Heritage House, but

believed on several occasions the officers would have attempted to search him in

violation of his rights. He tried to limit his engagements with the officers.

      Plaintiff denies any affiliation with gang activity. Plaintiff states he never

wore gang colors or insignias. While incarcerated by the DOC, he never was accused

of or participated in any gang activity.

      Plaintiff also asserts the magistrate appeared unwilling to issue a criminal

warrant when Plaintiff was brought before him for the criminal charges at issue. The

magistrate questioned the GPD officers on “whether this was the right thing to do”

since Plaintiff only managed the apartment and was not either the owner or the

tenant of unit 308.

      The charges against Plaintiff were ultimately dismissed by the Guilford

County District Attorney on 16 September 2014. On 21 January 2015, Plaintiff filed

this complaint against Defendant. Plaintiff asserted claims against Defendant, in

both his official and individual capacities, for the following: (1) assault and battery,



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(2) false arrest and false imprisonment, and (3) malicious prosecution. Plaintiff

sought punitive damages for all three claims “[b]ecause defendant acted with actual

malice in the sense of personal ill will, and acted with conscious and intentional

disregard to plaintiff’s rights, which he knew was reasonably likely to result in

injury.”

      On 24 February 2015, Defendant answered Plaintiff’s complaint and filed a

Rule 12(b)(6) motion to dismiss. Defendant alleged he was entitled to the defenses of

governmental immunity, public official immunity, necessity, and probable cause.

Defendant filed a subsequent motion for summary judgment on 8 September 2015.

      The trial court heard Defendant’s motion for summary judgment in October

2015. Prior to ruling, the trial court considered six affidavits, the pleadings, legal

authority submitted by each party, and arguments of counsel.          The trial court

concluded Defendant’s motion for summary judgment “should be denied as there are

genuine issues of material fact and [defendant is] not entitled to judgment as a matter

of law.” Defendant appeals.

                                      II. Issues

      Defendant argues the trial court erred by denying his motion for summary

judgment asserting affirmative defenses of governmental immunity and public

official immunity.

                               III. Standard of Review



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      Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A–1, Rule 56(c) (2015); see Draughon

v. Harnett Cnty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003)

(citation omitted), aff’d per curium, 358 N.C. 131, 591 S.E.2d 521 (2004).

      In reviewing a motion for summary judgment, the trial court must “view the

pleadings and all other evidence in the record in the light most favorable to the

nonmovant and draw all reasonable inferences in that party’s favor.” N.C. Farm

Bureau Mut. Ins. Co. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 117 (2011) (citation

omitted).

             An issue is “genuine” if it can be proven by substantial
             evidence and a fact is “material” if it would constitute or
             irrevocably establish any material element of a claim or a
             defense.

             A party moving for summary judgment may prevail if it
             meets the burden (1) of proving an essential element of the
             opposing party’s claim is nonexistent, or (2) of showing
             through discovery that the opposing party cannot produce
             evidence to support an essential element of his or her
             claim. Generally this means that on undisputed aspects of
             the opposing evidential forecast, where there is no genuine
             issue of fact, the moving party is entitled to judgment as a
             matter of law. If the moving party meets this burden, the
             non-moving party must in turn either show that a genuine
             issue of material fact exists for trial or must provide an
             excuse for not doing so.



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Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations and

internal quotation marks omitted).      This Court reviews a trial court’s summary

judgment order de novo. Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624, 626,

652 S.E.2d 302, 304 (2007), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).

                                     IV. Analysis

                                    A. Jurisdiction

       Generally, “the denial of a motion for summary judgment is a nonappealable

interlocutory order.” Northwestern Fin. Grp. v. Cnty. of Gaston, 110 N.C. App. 531,

535, 430 S.E.2d 689, 692 (citation omitted), disc. review denied, 334 N.C. 621, 435

S.E.2d 337 (1993). This Court will only address the merits of such an appeal if “a

substantial right of one of the parties would be lost if the appeal were not heard prior

to the final judgment.” Id.

      Well-settled precedents hold “[o]rders denying dispositive motions based on the

defenses of governmental and public official’s immunity affect a substantial right and

are immediately appealable.” Thompson v. Town of Dallas, 142 N.C. App. 651, 653,

543 S.E.2d 901, 903 (2001) (citing Corum v. Univ. of North Carolina, 97 N.C. App.

527, 389 S.E.2d 596 (1990)), aff’d in part, reversed in part, and remanded, 330 N.C.

761, 413 S.E.2d 276, reh’g denied, 331 N.C. 558, 418 S.E.2d 664 (1992). This Court

allows interlocutory appeals of orders denying motions based on these defenses

because “the essence of absolute immunity is its possessor’s entitlement not to have



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to answer for his conduct in a civil damages action.” Epps v. Duke Univ., Inc., 122

N.C. App. 198, 201, 468 S.E.2d 846, 849 (citations and internal quotation marks

omitted), disc. review denied, 344 N.C. 436, 476 S.E.2d 115 (1996). Defendant’s

appeal is properly before this Court. Id.

                             B. Governmental Immunity

      “In North Carolina, governmental immunity serves to protect a municipality,

as well as its officers or employees who are sued in their official capacity, from suits

arising from torts committed while the officers or employees are performing a

governmental function.” Schlossberg v. Goins, 141 N.C. App. 436, 439, 540 S.E.2d 49,

52 (2000) (emphasis supplied). Governmental immunity is “absolute unless the City

has consented to [suit] or otherwise waived its right to immunity.” Id. at 440, 540

S.E.2d at 52.

      In order to “overcome a defense of governmental immunity, the complaint must

specifically allege a waiver of governmental immunity. Absent such an allegation,

the complaint fails to state a cause of action.” Paquette v. Cnty. of Durham, 155 N.C.

App. 415, 418, 573 S.E.2d 715, 717 (2002) (internal citations omitted), disc. review

denied, 357 N.C. 165, 580 S.E.2d 695 (2003). No particular language is required to

allege a waiver of governmental immunity, but the complaint must “allege facts that,

if taken as true, are sufficient to establish a waiver by the State of [governmental]




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immunity.” Green v. Kearney, 203 N.C. App. 260, 268, 690 S.E.2d 755, 762 (2010)

(internal quotation marks and citation omitted).

      Here, Plaintiff questions why Defendant raises governmental immunity in its

brief “since neither the City of Greensboro nor any other governmental unit was sued

in this case, and no issue of governmental immunity arises.” A defendant’s assertion

of governmental immunity not only protects a municipality, but also “its officers or

employees who are sued in their official capacity.” See Schlossberg, 141 N.C. App. at

439, 540 S.E.2d at 52.

      Plaintiff may have intended to sue Defendant only in his individual capacity,

but Plaintiff’s complaint sues Defendant both “[i]ndividually and in his Official

Capacity as Captain of the Greensboro Police Department.” Regarding the claim

against Defendant in his official capacity, Plaintiff’s complaint failed to specifically

allege any waiver of governmental immunity. Defendant was entitled to entry of

summary judgment on his affirmative defense of governmental immunity for

Plaintiff’s claims in his official capacity. In the absence of Plaintiff’s allegation of

waiver, the trial court should have granted Defendant’s motion on this ground. That

portion of the trial court’s order judgment is reversed.

                             C. Public Official Immunity

      The defense of public official immunity is a “derivative form” of governmental

immunity. Epps, 122 N.C. App. at 203, 468 S.E.2d at 850. Public official immunity



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precludes suits against public officials in their individual capacities and protects

them from liability “[a]s long as a public officer lawfully exercises the judgment and

discretion with which he is invested by virtue of his office, keeps within the scope of

his official authority, and acts without malice or corruption[.]” Smith v. State, 289

N.C. 303, 331, 222 S.E.2d 412, 430 (1976) (citation omitted).         “Actions that are

malicious, corrupt or outside of the scope of official duties will pierce the cloak of

official immunity[.]” Moore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996)

(citations omitted).

      A malicious act is one which is: “(1) done wantonly, (2) contrary to the actor’s

duty, and (3) intended to be injurious to another.” Wilcox v. City of Asheville, 222 N.C.

App. 285, 289, 730 S.E.2d 226, 230 (2012), disc. review denied and appeal dismissed,

366 N.C. 574, 738 S.E.2d 363 (2013); see In re Grad v. Kaasa, 312 N.C. 310, 313, 321

S.E.2d 888, 890 (1984) (“A defendant acts with malice when he wantonly does that

which a man of reasonable intelligence would know to be contrary to his duty and

which he intends to be prejudicial or injurious to another.”).

      Absent evidence to the contrary, this Court presumes public officials

“discharge their duties in good faith and exercise their powers in accord with the

spirit and purpose of the law.” Strickland v. Hedrick, 194 N.C. App. 1, 10, 669 S.E.2d

61, 68 (2008) (quoting Leete v. County of Warren, 341 N.C. 116, 119, 462 S.E.2d 476,

478 (1995)). Any evidence presented to rebut this presumption “must be sufficient by



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virtue of its reasonableness, not by mere supposition.       It must be factual, not

hypothetical; supported by fact, not by surmise.” Id. at 11, 669 S.E.2d at 68 (quoting

Dobson v. Harris, 352 N.C. 77, 85, 530 S.E.2d 829, 836 (2000); see Vest v. Easley, 145

N.C. App. 70, 75, 549 S.E.2d 568, 573 (2001) (“A mere allegation is not sufficient to

overcome summary judgment.”).

      In Strickland, this Court held where public officers adequately produced

evidence of good faith supporting their motion for summary judgment, it “trigger[ed]

the opposing party’s responsibility to come forward with facts, as distinguished from

allegations, sufficient to indicate he will be able to sustain his claim at trial.”

Strickland, 194 N.C. App. at 14, 669 S.E.2d at 70 (internal quotation marks and

citations omitted). The plaintiff in Strickland failed to produce such evidence. Id.

Rather, the plaintiff’s testimony “largely corroborated that of the [d]efendants” and

“proffered no evidence of actions by these officers outside the scope of their

employment, no evidence of corruption, and no evidence supporting their contention

that the warrants were issued upon false testimony.” Id. at 15, 669 S.E.2d at 70. This

Court emphasized the officers never met the plaintiffs and their interactions with the

plaintiffs were limited to the night the incident occurred and routine police

procedures following the incident. Id. at 13, 669 S.E.2d at 69.

      Unlike in Strickland, Plaintiff’s complaint and affidavit raise a genuine issue

of material fact regarding whether Defendant acted with malice toward Plaintiff.



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Plaintiff’s affidavit largely contradicts, not corroborates, the statements asserted in

the affidavits produced by Defendant. See id. at 14, 669 S.E.2d at 70. Plaintiff denies

Defendant’s statements that he refused to present Defendant with information

regarding the lease for unit 308. He denies any allegation of gang-related activity

and asserts Defendant produced no documentation from DOC tending to show

Plaintiff’s involvement in such activity.

      Plaintiff also denies not cooperating with and impeding the officers’

investigations. He claims he had previously been harassed by officers and had simply

made other tenants aware of their rights.            Furthermore, Plaintiff asserts the

magistrate questioned the officers’ arrest and pursuit of charges against Plaintiff and

who seemed unwilling to issue the warrant, and that all the charges were dismissed

by the District Attorney.       These sworn assertions almost wholly contradict

statements in the affidavits produced by Defendant. While not determinative, and

viewed in the light of the non-moving party, these assertions raise genuine issues of

material fact and tend to show Defendant’s actions against Plaintiff may have been

improperly motivated.

      Also unlike in Strickland, Defendant and the other officers involved had

previously interacted with Plaintiff on many occasions. Id. at 13, 669 S.E.2d at 69.

Defendant relied on his prior knowledge and reputation of Plaintiff, most of which

Plaintiff asserts to be incorrect, to make the arrest. Again, this evidence tends to



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raise genuine issues of material fact regarding whether Defendant’s actions against

Plaintiff were improperly motivated by malice due to his previous interactions with

Plaintiff.

       After considering the evidence presented in the pleadings, affidavits, and

hearing arguments of counsel, the trial court found genuine issues of material fact

existed regarding Plaintiff’s tort claims against Defendant. Based upon our de novo

review of the record and Defendant’s burden on appeal to show error, the trial court

properly denied Defendant’s motion for summary judgment concerning Plaintiff’s

claims against Defendant in his individual capacity.

                                    V. Conclusion

       The trial court erred in denying Defendant’s motion for summary judgment on

the ground of governmental immunity.          Plaintiff sued Defendant in his official

capacity and failed to meet the pleading requirements of alleging waiver to overcome

Defendant’s claim of governmental immunity.

       The trial court did not err by denying Defendant’s motion for summary

judgment concerning Plaintiff’s tort claims against Defendant in his individual

capacity. Plaintiff’s complaint and affidavit forecast triable issues of fact that exist

on whether Defendant’s actions were improperly motivated by malice.

       The order denying summary judgment appealed from is reversed in part, as it

concerns Defendant’s affirmative defense of governmental immunity. The order is



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affirmed in part, as it concerns Defendant’s affirmative defense of public official

immunity. This case is remanded for entry of judgment of dismissal on Defendant’s

affirmative defense of governmental immunity in his official capacity, and for further

proceedings on Plaintiff’s claims against Defendant in his individual capacity.

      AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

      Judges CALABRIA and DAVIS concur.




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