UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROLAND DARNELL; STEPHANIE
DARNELL,
Plaintiffs-Appellants,

v.
                                                                  No. 97-2040
B.P. EXPLORATION & OIL,
INCORPORATED; BP AMERICA,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CA-96-647)

Submitted: January 30, 1998

Decided: March 13, 1998

Before WILKINS and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

D. Thomas Lambeth, Jr., H. Clay Hemric, Jr., HEMRIC, LAMBETH,
CHAMPION & MOSELEY, P.A., Burlington, North Carolina, for
Appellants. Richard J. Keshian, J. Steven Gardner, KILPATRICK
STOCKTON, L.L.P., Winston-Salem, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Roland Darnell appeals from the district court's order granting
summary judgment to the Defendants and dismissing his state law
claims of malicious prosecution and intentional infliction of emo-
tional distress. Stephanie Darnell appeals from the district court's
order granting summary judgment to the Defendants and dismissing
her state law claim of loss of consortium. We affirm.

Roland Darnell was previously employed as the fuel/desk shop
manager at the Truckstops Corporation of America (TA) in North
Carolina. At the time, TA was a wholly-owned subsidiary of Defen-
dant B.P. Exploration & Oil, Inc. (BP), which in turn was a wholly-
owned subsidiary of Defendant B.P. America, Inc. (BP). In January
1993, TA management began to suspect that someone from the com-
pany was generating fraudulent receipts and invoices to obtain cash
from TA.1 An initial investigation conducted by TA employees
revealed that cash had been disbursed for numerous false vendor
receipts and that accounting discrepancies appeared only in the two
departments in which Darnell was manager. Further investigation
revealed that Darnell had signed the receipts for the cash that had
been disbursed in connection with the fraudulent vendor receipts.
Consequently, on January 22, 1993, Darnell's employment was termi-
nated.
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1 Pursuant to TA's cash disbursement procedures, if cash was needed
to purchase a part from a vendor, a manager could obtain the money
from a TA cashier. These petty cash disbursements were called "paid-
outs." The manager obtaining the "paid-out" would leave an "IOU"
known as a "Trendar receipt." Once the paid for item or service was
obtained, the vendor's invoice would be substituted for the Trendar
receipt.

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After further evidence was found implicating Darnell, TA informed
the Gibsonville Police Department (GPD) of its suspicions. The GPD
conducted a follow-up investigation and reported its findings to the
District Attorney's Office. Darnell was subsequently arrested and
indicted for embezzlement. The District Attorney's Office brought
additional charges against Darnell for obtaining money by false pre-
tenses. A jury later acquitted Darnell of these criminal charges.

Darnell initiated this action in state court claiming that the Defen-
dants, acting through their agents and employees, maliciously prose-
cuted him by instituting criminal charges against him and
intentionally caused him to suffer emotional distress.2 Mrs. Darnell
alleged that she suffered loss of consortium as a result of the Defen-
dants' actions against her husband. The Defendants later removed the
action to federal district court on diversity grounds.

This court reviews de novo a district court's grant of summary
judgment and affirms only if the record reveals no genuine issue of
material fact and that the Defendants were entitled to judgment as a
matter of law. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A
"genuine issue of material fact" exists when, viewed in the light most
favorable to the nonmovant, the evidence presents a sufficient dis-
agreement to require submission to a jury. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-49 (1986). At the summary judgment stage,
all issues of credibility are resolved in the plaintiff's favor. Miller v.
Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990).

Under North Carolina law an action for malicious prosecution
requires a plaintiff to show: (1) initiation by the defendant of an ear-
lier proceeding; (2) lack of probable cause for such initiation; (3) mal-
ice, either actual or implied; and (4) termination of the earlier
proceeding in favor of the plaintiff. See Semones v. Southern Bell Tel.
& Tel. Co., 416 S.E.2d 909, 912 (N.C. Ct. App. 1992) (citing Jones
v. Gwynne, 323 S.E.2d 9, 11 (N.C. 1984)). Failure to prove any of
these elements precludes recovery. See id. Despite the possibility that
other employees may have been involved in this fraudulent scheme,
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2 While Darnell also instituted a defamation claim against BP, which
the district court later dismissed as being time-barred, he does not contest
this dismissal on appeal.

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the record reveals that TA had probable cause to institute the criminal
proceeding brought against Roland Darnell. Furthermore, Darnell has
put forth no evidence showing that the Defendants acted with malice.
Consequently, Darnell's malicious prosecution claim cannot be sus-
tained as a matter of law. See id.

We further find that the district court properly dismissed Darnell's
claim of intentional infliction of emotional distress. In North Carolina
a plaintiff can recover for emotional distress caused by another per-
son's intentional or reckless, extreme and outrageous conduct. See
Lorbacher v. Housing Auth. of Raleigh, 493 S.E.2d 74, 81 (N.C. Ct.
App. 1997). We find that neither TA's management nor BP's security
department engaged in the type of extreme and outrageous conduct
necessary to sustain a claim of intentional infliction of emotional dis-
tress. Darnell was charged and indicted based on an investigation con-
ducted by agents and employees of BP pursuant to their employment
duties. Such conduct is neither extreme nor outrageous. Accordingly,
Darnell's claim of intentional infliction of emotional distress is with-
out merit.

Finally, we find that Mrs. Darnell's claim for loss of consortium is
meritless in light of the disposition of her husband's claims. See
Labram v. Havel, 43 F.3d 918, 921 (4th Cir. 1995); Sloan v. Miller
Bldg. Corp., 493 S.E.2d 460, 463 (N.C. Ct. App. 1997).

We therefore affirm the district court order granting summary judg-
ment to the Defendants and dismissing the Darnells' claims. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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