               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-111
                                  No. COA16-112

                           Filed: 20 December 2016

Franklin County, No. 14 CVS 354

FREDERICK SAMUEL LOPP, Plaintiff,

           v.

JOEL ANDERSON, Individually and in his Official Capacity; KENT WINSTEAD,
SHERIFF OF FRANKLIN COUNTY, in his Official Capacity; FRANKLIN COUNTY;
GARRETT STANLEY, Individually and in his Official Capacity; ANDY
CASTANEDA, Individually and in his Official Capacity; SHERRI BRINKLEY,
Individually and in her Official Capacity; LOUISBURG POLICE DEPARTMENT;
and THE TOWN OF LOUISBURG, Defendants.

                     ____________________________________

                                  No. COA16-112

                           Filed: 20 December 2016

Franklin County, No. 14 CVS 353

RODDIE McKINLEY LOPP, Plaintiff,

           v.

JOEL ANDERSON, Individually and in his Official Capacity; KENT WINSTEAD,
SHERIFF OF FRANKLIN COUNTY, in his Official Capacity; FRANKLIN COUNTY;
GARRETT STANLEY, Individually and in his Official Capacity; ANDY
CASTANEDA, Individually and in his Official Capacity; SHERRI BRINKLEY,
Individually and in her Official Capacity; LOUISBURG POLICE DEPARTMENT;
and THE TOWN OF LOUISBURG, Defendants.


     Appeal by Plaintiffs from orders entered 3 November 2015 by Judge Robert H.

Hobgood in Superior Court, Franklin County. Heard in the Court of Appeals 22

August 2016.
                      LOPP V. ANDERSON & LOPP V. ANDERSON

                                 Opinion of the Court



      Stainback, Satterwhite & Zollicoffer, PLLC, by Paul J. Stainback, for
      Plaintiffs-Appellants.

      Womble Carlyle Sandridge & Rice, LLP, by Christopher J. Geis, for
      Defendants-Appellees Joel Anderson, Sheriff Kent Winstead, and Franklin
      County.

      Pinto Coates Kyre & Bowers, PLLC, by Richard L. Pinto and Andrew G. Pinto,
      for Defendants-Appellees Garrett Stanley, Andy Castaneda, Sherri Brinkley,
      Louisburg Police Department, and Town of Louisburg.


      McGEE, Chief Judge.


                                      I. Facts

      The events relevant to this appeal occurred on 28 June 2009. On that date,

Roddie McKinley Lopp (“Roddie”) lived with his parents, Mary Lopp and Frederick

Samuel Lopp (“Frederick”) (Frederick together with Roddie, “Plaintiffs”) in

Louisburg. Roddie had two young children (“the children”), whose mother was Jodie

Braddy (“Jodie”). Roddie and Jodie never married, and Jodie subsequently married

Doug Braddy (“Doug”). On 28 June 2009, Roddie and Jodie shared custody of the

children under the terms of a custody order. Pursuant to this custody order, Roddie

was to deliver the children to Jodie by 6:00 p.m. on 28 June 2009. Deviation from

established transfer times could only be made by the “mutual consent” of Roddie and

Jodie. Roddie contends his attorney spoke with Jodie’s attorney prior to 28 June

2009, and an agreement was reached whereby Roddie would keep the children past

28 June 2009 to make up for times when Jodie had kept the children during Roddie’s


                                        -2-
                           LOPP V. ANDERSON & LOPP V. ANDERSON

                                        Opinion of the Court



custodial periods.      The record includes nothing beyond Roddie’s testimony and

affidavit supporting the existence of this agreement.

       According to Jodie, after Roddie failed to appear by 6:00 p.m. on 28 June 2009,

Jodie decided to drive to the Louisburg Police Department for assistance in retrieving

the children. Jodie brought the custody order with her, which she showed to police

officers. Jodi asked for assistance from the officers because she was worried that

Roddie “could possibly get violent because [she and Roddie] had had such a physical

history.” Jodie also informed the officers that Roddie kept firearms in his house.

After speaking with the on-duty magistrate, an officer informed Jodie that the

Louisburg police would assist her.

       Officers Garrett Stanly1 (“Officer Stanly”), Andy Castaneda (“Officer

Castaneda”), and Sherri Brinkley (“Officer Brinkley”) were in the parking lot of the

police station preparing to leave for Plaintiffs’ house when Deputy Joel Anderson

(“Deputy Anderson”) of the Franklin County Sheriff’s Department (Deputy Anderson,

along with the above three officers “Defendant Officers”), passed by and agreed to join

them. Defendant Officers headed to Plaintiffs’ house, and Jodie and Doug followed

in their own automobile.




       1  Although his name is written as “Garrett Stanley” on the complaint, orders granting
summary judgment, and on notices of appeal, in his affidavit Officer Stanly struck out the spelling of
“Stanley,” and hand-wrote “Stanly,” underneath his signature. We will use the spelling “Stanly”
throughout the body of this opinion.

                                                -3-
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                    Opinion of the Court



      The following is Roddie’s account of the events that occurred at his home on 28

June 2009. Defendant Officers approached Roddie in his yard and “proceeded to

confront him and insisted upon the return of the children to Jodi[e.]” Roddie told

Defendant Officers that he wanted to call his attorney so his attorney could explain

that an agreement had been reached allowing Roddie to keep the children for some

extra period of time. According to Roddie’s deposition testimony, he told Defendant

Officers: “‘Well, I’m going to go in and call . . . my attorney and then get a copy of the

consent order and show you.’” Roddie testified: “There was [sic] no words after that.

All four of them took me down, beat me, kicked me, assaulted me.” Roddie testified

that he had done nothing to provoke Defendant Officers, and that all four Defendant

Officers “assaulted” him. Roddie testified that all four Defendant Officers punched

and kicked him as he was lying on the ground and already handcuffed. Roddie further

testified that he believed Deputy Anderson attempted to shock him with a stun gun

as Roddie was “getting into the [police] car[,]” even though he was not resisting.

According to Roddie, Deputy Anderson placed his stun gun on him, and he felt a small

“jolt,” but “not like what I’m used to seeing on TV[.]” Roddie believed the stun gun

didn’t “work[] completely right.”

      Concerning the treatment of Frederick, Roddie testified that, after he had been

helped off the ground, he “looked back and [Frederick] was down” on the ground.

Roddie testified that Officer Stanly and Deputy Anderson “were roughing [Frederick]



                                           -4-
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



up and cuffing him.” Roddie further testified that by “roughing up” he meant Officer

Stanly and Deputy Anderson were punching Frederick in the face and upper body.

In an affidavit, Roddie stated:

             [A]s I was led away and taken to the police vehicle I saw
             my father, Frederick Lopp, who was then 83 years of age,
             thrown to the ground and assaulted in much the same
             manner as me, and he [had] to be taken to the hospital later
             that same night.

In his verified complaint, Frederick alleged that when he “saw his son . . . being

wrongfully harmed and assaulted by” Defendant Officers, he asked Defendant

Officers if they had a warrant and told Defendant Officers they had no right to be

there. Frederick then walked toward Roddie and Defendant Officers, “but [Frederick]

was thereafter thrown to the ground by [Defendant Officers]” and “beaten,

handcuffed and generally assaulted[.]”       Defendants have included in the record

testimony and affidavits contradicting Plaintiffs’ recitation of the events.

      Plaintiffs filed complaints on 22 April 2014 alleging assault and battery, false

imprisonment, and malicious prosecution against Defendant Officers, in both their

official and individual capacities; and against Defendants Franklin County, the Town

of Louisburg, the Louisburg Police Department, and Jerry Jones, as Sheriff of

Franklin County, in both his official and individual capacity.       By consent order

entered 1 June 2015, Jerry Jones was dismissed as a Defendant in this matter, and

Kent Winstead was substituted as a Defendant for Jerry Jones, solely in his official



                                          -5-
                        LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



capacity as Sheriff of Franklin County. Defendants moved for summary judgment by

motions filed 14 September 2015 and 16 September 2015.

        Defendants argued that Defendant Officers, acting in their individual

capacities, were entitled to public official immunity; and that the municipal

Defendants, along with the individual Defendants acting in their official capacities,

were protected from suit by governmental immunity.           The trial court granted

summary judgment in favor of all Defendants by orders entered 3 November 2015.

Plaintiffs appeal.

                                      II. Analysis

        In Plaintiffs’ sole arguments on appeal they contend that the trial court erred

in allowing Defendants’ motions for summary judgment “based upon issues of

sovereign immunity and public officer immunity.” We agree in part and disagree in

part.

        “Our standard of review of a trial court’s order granting or denying summary

judgment is de novo. Under a de novo review, the [C]ourt considers the matter anew

and freely substitutes its own judgment for that of the lower tribunal.” Bryson v.

Coastal Plain League, LLC, 221 N.C. App. 654, 656, 729 S.E.2d 107, 109 (2012)

(citations and quotation marks omitted).

              “On appeal from summary judgment, the applicable
              standard of review is whether there is any genuine issue of
              material fact and whether the moving party is entitled to a
              judgment as a matter of law.” Summary judgment is


                                          -6-
                          LOPP V. ANDERSON & LOPP V. ANDERSON

                                       Opinion of the Court



               appropriate “if 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
               judgment as a matter of law.” If there is any evidence of a
               genuine issue of material fact, a motion for summary
               judgment should be denied. “[W]e review the record in a
               light most favorable to the party against whom the order
               has been entered to determine whether there exists a
               genuine issue as to any material fact.”

Smith v. Harris, 181 N.C. App. 585, 587, 640 S.E.2d 436, 438 (2007) (citations

omitted). However, this Court will only consider those arguments properly set forth

in an appellant’s brief. Bryson, 221 N.C. App. at 655, 729 S.E.2d at 108.

                                   A. Sovereign Immunity

       The trial court granted summary judgment in favor of the municipal

Defendants and the individual Defendants in their official capacities based upon

sovereign immunity. The trial court based its orders granting summary judgment on

the following:2

               1. Defendants Joel Anderson, Sheriff Kent Winstead,
               Garrett Stanley, Andy Castaneda, and Sherri a/k/a Shari
               Brinkley, in their official capacities, by reason of sovereign
               and/or governmental immunity, because there was no
               liability insurance providing indemnity coverage because
               the only policy of insurance for Franklin County and the
               only policy of insurance for the Town of Louisburg for the
               time in question did not provide liability coverage for the
               alleged actions of Defendants Anderson, Winstead,
               Stanley, Castaneda, and Brinkley against Plaintiff.


       2  The orders granting summary judgment in Roddie’s case and Frederick’s case are identical
in every relevant way, though there are some minor wording differences.

                                              -7-
                     LOPP V. ANDERSON & LOPP V. ANDERSON

                                 Opinion of the Court



            2. Franklin County and the Town of Louisburg are entitled
            to sovereign and/or governmental immunity because the
            only policy of insurance for Franklin County and the only
            policy of insurance for the Town of Louisburg for the time
            in question preserves sovereign and/or governmental
            immunity for Plaintiff’s claims, and, additionally, under
            North Carolina Law, a county may not be liable for the acts
            or omissions of a sheriff or his deputies.

            3. Defendants Joel Anderson, Garrett Stanley, Andy
            Castaneda, and Sherri a/k/a Shari Brinkley, in their
            individual capacities, are entitled to public officer
            immunity in that said defendants did not act with malice,
            were not corrupt, and were not acting outside of or beyond
            the scope of their duties. Furthermore, Defendants
            Stanley, Castaneda, and Brinkley conducted the arrest of
            Plaintiff based on probable cause for acts committed in
            their presence which would induce a reasonable police
            officer to arrest Plaintiff. Additionally, because there was
            probable cause for the arrest of Plaintiff, none of the
            Plaintiff’s North Carolina State Constitutional Rights have
            been violated as Defendants Anderson, Stanley,
            Castaneda, and Brinkley used the minimum amount of
            force necessary to safely arrest Plaintiff.

            4. Defendant Louisburg Police Department is not a public
            entity that can be sued.

      Concerning the issue of sovereign immunity, Plaintiffs make identical

arguments. Their entire arguments are as follows:

            The Defendants have all asserted governmental immunity,
            and contend that they are entitled to immunity unless it is
            waived through the purchase of insurance. It is clear that
            both Franklin County and the City of Louisburg had
            acquired insurance, but the Defendants all contend that
            the acquisition of this insurance purportedly did not waive
            as a defense the defense of governmental immunity, and
            therefore the County and City are still entitled to that


                                        -8-
                      LOPP V. ANDERSON & LOPP V. ANDERSON

                                  Opinion of the Court



             defense. That is absurd, in that it is a fallacy and contrary
             to public policy. Why would you purchase insurance which
             had a provision in it that it would allow the County to not
             waive governmental immunity as a defense? If that is the
             case, the County and City are spending money for feckless
             reasons.

Plaintiffs’ arguments consist of declaratory statements unsupported by any citation

to authority. Plaintiffs do not discuss the provisions of the insurance policies and,

subsequently, Plaintiffs also fail to make any argument concerning the specific

provisions of the policies that they contend served to waive sovereign immunity.

Plaintiffs further fail to cite to any authority in support of any contention that the

relevant insurance policies served to waive sovereign immunity.              Plaintiffs’

arguments violate Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure,

and these arguments are therefore abandoned. McKinnon v. CV Indus., Inc., 228

N.C. App. 190, 196, 745 S.E.2d 343, 348 (2013) (citation omitted) (“Although plaintiff

makes a passing reference to these statutes in his brief, he makes no specific

argument that the trial court erred in denying his motion for attorney’s fees under

them. We therefore deem these issues abandoned. N.C.R. App. P. 28(b)(6) (‘Issues

not presented in a party’s brief, or in support of which no reason or argument is

stated, will be taken as abandoned.’)”); N.C. Farm Bureau Mut. Ins. Co. v. Smith,

227 N.C. App. 288, 292, 743 S.E.2d 647, 649 (2013) (“[Appellant] fail[s] to cite any

controlling authority in support of this contention or otherwise explain why it has

merit, and we accordingly deem the issue abandoned. See N.C.R. App. P. 28(b)(6)


                                         -9-
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



(2013) (providing that an appellant’s argument ‘shall contain citations of the

authorities upon which the appellant relies’).”).

      Because Plaintiffs fail to properly argue that relevant insurance policies served

to waive sovereign immunity with respect to Defendants Franklin County, Town of

Louisburg, Louisburg Police Department, or Defendants Joel Anderson, Garrett

Stanly, Andy Castaneda, Sherri Brinkley, and Kent Winstead, acting in their official

capacities, any such arguments are abandoned. McKinnon, 228 N.C. App. at 196, 745

S.E.2d at 348. We affirm the grant of summary judgment in favor of the municipal

Defendants, and the individual Defendants in their official capacities.          Because

Plaintiffs agreed, by consent order, to pursue Defendant Kent Winstead in his official

capacity only, no claims remain against Defendant Kent Winstead.

                         B. Additional Abandoned Arguments

      Further, Plaintiffs do not argue on appeal that Franklin County can be held

liable for the acts of its elected Sheriff or his deputies, so any such arguments are also

abandoned. Id. In addition, Plaintiffs make no arguments in their briefs concerning

Defendant Louisburg Police Department. Plaintiffs have therefore abandoned any

arguments that the trial court erred in granting summary judgment in favor of

Defendant Louisburg Police Department. Id.

                              C. Public Official Immunity




                                          - 10 -
                        LOPP V. ANDERSON & LOPP V. ANDERSON

                                    Opinion of the Court



      Plaintiffs also contend the trial court erred in granting summary judgment in

favor of Defendant Officers Garrett Stanly, Andy Castaneda, Sherri Brinkley, and

Joel Anderson, in their individual capacities.

      Defendants contend that, because the individual Defendants were public

officials conducting their public duties, their actions were protected by public official

immunity. Police officers engaged in performing their duties are public officials for

the purposes of public official immunity: “a police officer is a public official who enjoys

absolute immunity from personal liability for discretionary acts done without

corruption or malice.” Campbell v. Anderson, 156 N.C. App. 371, 376, 576 S.E.2d 726,

730 (2003) (citations omitted).

             The North Carolina rule is that a public official engaged in
             the performance of governmental duties involving the
             exercise of judgment and discretion may not be held liable
             unless it is alleged and proved that his act, or failure to act,
             was corrupt or malicious, or that he acted outside of and
             beyond the scope of his duties.

Showalter v. N.C. Dep’t of Crime Control & Pub. Safety, 183 N.C. App. 132, 136, 643

S.E.2d 649, 652 (2007) (citation omitted). Plaintiffs have specifically alleged that

Defendant Officers acted with malice.

             “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.” As the moving party, defendants
             had “the burden of showing that no material issues of fact
             exist, such as by demonstrating through discovery that the
             opposing party cannot produce evidence to support an


                                           - 11 -
                           LOPP V. ANDERSON & LOPP V. ANDERSON

                                    Opinion of the Court



             essential element of his claim or defense.”

Id. (citations omitted).

                                 1. Roddie McKinley Lopp

      As discussed in greater detail above, Roddie testified and averred that all four

Defendant Officers participated in taking him to the ground and punching and

kicking him even though he was not resisting. Roddie further testified he was treated

in that manner simply because he stated he was going to call his attorney to help

clear up a misunderstanding about the custody agreement and his right to keep the

children on 28 June 2009. There are multiple accounts from other witnesses who

contradict Roddie’s description of the events surrounding his arrest, but we must view

the evidence in the light most favorable to Plaintiffs, since they are the non-moving

parties. Smith, 181 N.C. App. at 587, 640 S.E.2d at 438. This Court previously

addressed a similar fact situation in Showalter, where this Court held that denial of

the police officer defendant, Trooper Emmons’, motion for summary judgment was

proper based upon the following evidence:

             In support of their motion for summary judgment,
             defendants offered the deposition testimony of plaintiff and
             his wife, and the affidavit of Trooper Emmons. Although
             Trooper Emmons averred in his affidavit that he did not
             act maliciously or with reckless indifference toward
             plaintiff, and that all of his actions were “based on probable
             cause,” plaintiff testified in his deposition that the officer
             was angry, was “very loud and spitting,” and that when he
             opened his car door in response to the officer’s command,
             Trooper Emmons “maced” him, with some of the spray


                                           - 12 -
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



             going inside plaintiff’s car and contacting his wife. Plaintiff
             also testified that he told the officer that he needed his
             crutches, but the officer jerked him out of the car and
             handcuffed him, notwithstanding plaintiff’s wife telling the
             trooper that plaintiff was disabled. The court must
             consider the evidence “in a light most favorable to the
             nonmoving party,” and “[a]ll inferences of fact must be
             drawn against the movant and in favor of the nonmovant.”
             When so considered, the foregoing evidentiary materials
             are sufficient to create a genuine issue of fact, material to
             the issue of immunity, as to whether Trooper Emmons
             actions were done with malice.

Showalter, 183 N.C. App. at 136, 643 S.E.2d at 652 (citations omitted).

      In the present case, Roddie’s deposition testimony was as follows: Defendant

Officers came to his home and informed him that they were going to take his children

from him and arrest him. Roddie tried to explain that his attorney and Jodie’s

attorney had reached an agreement whereby Roddie would keep the children for a

few days beyond 28 June 2009, to make up for extra time Jodie had kept the children

in the past. Defendant Officers were not interested in listening to Roddie, so Roddie

said he was going to go inside and call his attorney so his attorney could explain the

situation to Defendant Officers. At that moment, according to Roddie: “They took me

down and assaulted me.” Roddie testified that all four Defendant Officers “took him

down” and then punched and kicked him in front of his children.                Roddie was

handcuffed and placed in the back of a police vehicle. Roddie testified that a stun gun

was deployed for no reason while Defendant Officers were attempting to place him in

the vehicle, but he did not think the stun gun functioned properly.


                                          - 13 -
                           LOPP V. ANDERSON & LOPP V. ANDERSON

                                         Opinion of the Court



        Although there is both affidavit and deposition testimony challenging Roddie’s

recitation of events, we must look at the evidence in the light most favorable to

Roddie, as the non-moving party. We hold that, similar to the facts in Showalter, the

record evidence raises an issue of material fact concerning whether Defendant

Officers acted with malice. See also Thompson v. Town of Dallas, 142 N.C. App. 651,

656–57, 543 S.E.2d 901, 905–06 (2001) (unnecessarily rough treatment of the plaintiff

by defendant officer, as forecast in the plaintiff’s complaint, sufficient to survive

summary judgment even though defendant forecast evidence to the contrary).

Therefore, relevant to Roddie’s complaint, it was error for the trial court to grant

Defendants’ motion for summary judgment in favor of Defendant Officers, acting in

their individual capacities, based upon public official immunity.3

                                    2. Frederick Samuel Lopp

        Defendants tried to depose Frederick on two occasions — 15 January 2015 and

8 September 2015. Unfortunately, Frederick, who turned eighty-nine years old on 26

June 2015, was unable to answer coherently the questions asked of him on either




        3We also note that much of Roddie’s argument in his brief before this court focuses on his
contention that the officers had no legal authority to assist Jodie in retrieving the children according
to the custody order, so the officers were acting “outside of and beyond the scope of [their] duties”
simply by entering his property to assist Jodie in retrieving the children. The forecast of evidence does
not show that the officers were acting outside or beyond the scope of their duties simply by assisting
Jodie according to an existing custody order; it shows only that the officers may have used
inappropriate force in dealing with Roddie and Frederick.

                                                 - 14 -
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



occasion. Therefore, the only evidence in support of Frederick’s claims consists of his

verified complaint, and the deposition testimony and affidavit of Roddie.

      Although Frederick could not participate in his attempted depositions,

Frederick’s verified complaint alleges that he was “thrown to the ground[,]” then

“beaten, handcuffed and generally assaulted[.]” Frederick’s complaint alleges that

he suffered “severe injuries” including “lacerations to his face, head, back, knees, legs

and wrists” that required medical attention.          Further, Roddie’s testimony and

affidavit include testimony that Roddie witnessed Frederick being assaulted by

Deputy Anderson and Officer Stanly and, more specifically, that these two officers

were punching Frederick in the head and upper body as he was subdued on the

ground.

      For the same reasons discussed above concerning Roddie, we hold that,

because there is a material conflict in the evidence asserted by Plaintiffs and

Defendants, summary judgment in favor of Deputy Anderson and Officer Stanly

based upon public official immunity relating to Frederick’s complaint, was error. We

further hold, however, that Frederick failed to present the trial court sufficient facts

to support a finding of malice on the part of Officers Brinkley and Castaneda.

Roddie’s deposition testimony only implicated Deputy Anderson and Officer Stanly

in the alleged mistreatment of Frederick, and Frederick was unable to give any

testimony at all. We affirm the trial court’s grant of summary judgment in favor of



                                          - 15 -
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



Officers Brinkley and Castaneda, in their individual capacities, based upon public

official immunity, for Frederick’s claims.

                       D. Specific Individual Capacity Claims

      We must now consider whether summary judgment should have been granted

in favor of the individual Defendants for any of the specific claims Plaintiffs filed

against them. Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989) (citation

omitted) (“If the granting of summary judgment can be sustained on any grounds, it

should be affirmed on appeal. If the correct result has been reached, the judgment

will not be disturbed even though the trial court may not have assigned the correct

reason for the judgment entered.”). We reiterate that none of the following analysis

applies to Officers Castaneda or Brinkley for Frederick’s individual capacity claims

because, as held above, they were protected by public official immunity from

Frederick’s individual capacity claims.

                                1. Assault and Battery

      A law enforcement officer may be held liable for assault and battery in the

course of an arrest if he or she uses excessive force in the course of that arrest.

             [A] civil action for damages for assault and battery is
             available at common law against one who, for the
             accomplishment of a legitimate purpose, such as justifiable
             arrest, uses force which is excessive under the given
             circumstances.

             Under the common law, a law enforcement officer has the
             right, in making an arrest and securing control of an


                                          - 16 -
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                  Opinion of the Court



             offender, to use only such force as may be reasonably
             necessary to overcome any resistance and properly
             discharge his duties. “[H]e may not act maliciously in the
             wanton abuse of his authority or use unnecessary and
             excessive force.” Although the officer has discretion, within
             reasonable limits, to judge the degree of force required
             under the circumstances, “when there is substantial
             evidence of unusual force, it is for the jury to decide
             whether the officer acted as a reasonable and prudent
             person or whether he acted arbitrarily and maliciously.”
             Further, an assault and battery need not necessarily be
             perpetuated      with   maliciousness,      willfulness    or
             wantonness, and actual physical injury need not be shown
             in order to recover.

Myrick v. Cooley, 91 N.C. App. 209, 215, 371 S.E.2d 492, 496 (1988) (citations

omitted). There are questions of material fact concerning whether Defendant Officers

used excessive force, such as punching or kicking Plaintiffs, or deploying a stun gun,

while facilitating the arrest of Plaintiffs. The trial court erred in granting summary

judgment in favor of all Defendant Officers in their individual capacities for Roddie’s

assault and battery claims, and further erred in granting summary judgment in favor

of Deputy Anderson and Officer Stanly in their individual capacities for Frederick’s

assault and battery claims.

                               2. False Imprisonment

      Defendant Officers did not have a warrant to arrest Plaintiffs and, according

to Defendants’ evidence, they were not intending to arrest Plaintiffs when they

arrived at Plaintiffs’ residence.     Defendants’ evidence suggests that Roddie

“aggressively initiated contact with the [individual Defendants.]” However, Roddie’s


                                         - 17 -
                        LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



evidence, if believed, suggests that immediately after Roddie indicated that he

wanted to call his attorney in order to clear up the custody issue, Defendant Officers

“surrounded [Roddie], threw him to the ground, handcuffed him, [and] arrested

him[.]” Roddie claims he did not initiate contact with Defendant Officers. Roddie

further claims that he was beaten by Defendant Officers. Frederick, in his verified

complaint, contended that, when he saw Defendant Officers assaulting Roddie, he

“asked the said Defendants if they had a warrant and stated they had no right to be

at said premises without a warrant.” “Thereupon [Frederick] turned to walk toward

the location within his yard where all of said persons were located, but [Frederick]

was thereafter thrown to the ground by the individual Defendants[,]” and then

“assaulted.”

               False imprisonment is the illegal restraint of a person
               against his will. A restraint is illegal if not lawful or
               consented to. A false arrest is an arrest without legal
               authority and is one means of committing a false
               imprisonment. The existence of legal justification for a
               deprivation of liberty is determined in accordance with the
               law of arrest, which is set forth in Chapter 15A of the
               General Statutes.

               N.C.G.S. § 15A–401(b)(1) (Cum. Supp. 1994) provides that
               an officer may arrest a person without a warrant if the
               officer has probable cause to believe that the person has
               committed a criminal offense in the officer’s presence. A
               warrantless arrest without probable cause is unlawful.
               Thus, the dispositive issue is whether defendant had
               probable cause to believe that plaintiffs had committed
               assaults upon him.



                                          - 18 -
                      LOPP V. ANDERSON & LOPP V. ANDERSON

                                  Opinion of the Court



             The existence or nonexistence of probable cause is a mixed
             question of law and fact. If the facts are admitted or
             established, it is a question of law for the court. However,
             if the facts are in dispute, the question of probable cause is
             one of fact for the jury. In this case, the material facts
             surrounding the incident are in dispute, and therefore the
             existence or nonexistence of probable cause is for the jury
             to determine. Accordingly, defendant was not entitled to
             summary judgment on this ground.

Marlowe v. Piner, 119 N.C. App. 125, 129, 458 S.E.2d 220, 223 (1995) (citations

omitted). As in Marlowe, in the present case the facts are in dispute concerning

probable cause to arrest Plaintiffs on 28 June 2009. The trial court erred in granting

summary judgment in favor of all Defendant Officers in their individual capacities

for Roddie’s false imprisonment claims, and further erred in granting summary

judgment in favor of Deputy Anderson and Officer Stanly in their individual

capacities for Frederick’s false imprisonment claims.

                               3. Malicious Prosecution

      As this Court explained in Moore v. Evans, 124 N.C. App. 35, 476 S.E.2d 415

(1996):

             In order to maintain an action for malicious prosecution,
             the plaintiff must demonstrate that the defendant “(1)
             instituted, procured or participated in the criminal
             proceeding against [the] plaintiff; (2) without probable
             cause; (3) with malice; and (4) the prior proceeding
             terminated in favor of [the] plaintiff.” “[M]alice can be
             inferred from the want of probable cause alone.” As it is
             undisputed that defendant Evans initiated the criminal
             prosecution against Mr. Moore and that the prosecution
             ended with a dismissal of the charges against him, the only


                                         - 19 -
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



             issue as to Mr. Moore’s claim for malicious prosecution is
             whether defendant Evans had probable cause to initiate
             the criminal prosecution against him. Hence, a common
             element of each of the state claims alleged (false
             imprisonment and malicious prosecution) is the absence of
             probable cause.

             The test for whether probable cause exists is an objective
             one—whether the facts and circumstances, known at the
             time, were such as to induce a reasonable police officer to
             arrest, imprison, and/or prosecute another. In Pitts, our
             Supreme Court stated:

                 The existence or nonexistence of probable cause is a
                 mixed question of law and fact. If the facts are admitted
                 or established it is a question of law for the court.
                 Conversely, when the facts are in dispute the question
                 of probable cause is one of fact for the jury.

Id. at 42–43, 476 S.E.2d at 421–22 (citations omitted). Defendants do not dispute

that the criminal proceedings were subsequently terminated in Plaintiffs’ favor. We

hold there is sufficient evidence to survive summary judgment on the fourth element

of malicious prosecution.

      Concerning the first element, Officers Stanly, Castaneda, and Brinkley do not

dispute that they were involved in instituting the criminal proceedings. Deputy

Anderson argues that he did not “institute” the criminal proceedings because neither

he nor the Franklin County Sheriff’s Office brought charges against Plaintiffs.

However, it is not necessary that an individual be directly involved in charging a

person, or filing civil claims against that person, in order to have participated

sufficiently in “institut[ing], procur[ing] or participat[ing] in the criminal proceeding


                                          - 20 -
                       LOPP V. ANDERSON & LOPP V. ANDERSON

                                   Opinion of the Court



against [the] plaintiff[.]” Id. at 42, 476 S.E.2d at 421. “[W]here ‘it is unlikely there

would have been a criminal prosecution of [a] plaintiff’ except for the efforts of a

defendant, this Court has held a genuine issue of fact existed and the jury should

consider the facts comprising the first element of malicious prosecution.” Becker v.

Pierce, 168 N.C. App. 671, 675, 608 S.E.2d 825, 829 (2005) (citation omitted). Because

Deputy Anderson is identified by Plaintiffs as having participated in the subduing

and arrests of both Roddie and Frederick, we hold there is sufficient evidence to

survive summary judgment that Deputy Anderson instituted, procured or

participated in the criminal charges brought against Plaintiffs.

      Concerning the third element – probable cause:

             Our Supreme Court has defined probable cause with
             respect to malicious prosecution as:

                “the existence of such facts and circumstances, known
                to [the defendant] at the time, as would induce a
                reasonable man to commence a prosecution.” Whether
                probable cause exists is a mixed question of law and
                fact, but where the facts are admitted or established,
                the existence of probable cause is a question of law for
                the court.

             The test for determining probable cause is “‘whether a man
             of ordinary prudence and intelligence under the
             circumstances would have known that the charge had no
             reasonable foundation.’”

Id. at 677, 608 S.E.2d at 829–30 (citations omitted). When we take the evidence in

the light most favorable to Plaintiffs, as we must, Smith, 181 N.C. App. at 587, 640



                                          - 21 -
                           LOPP V. ANDERSON & LOPP V. ANDERSON

                                    Opinion of the Court



S.E.2d at 438, we hold there is sufficient evidence, as set out above, for a trier of fact

to determine that the charges against Plaintiffs “had no reasonable foundation.”

Becker, 168 N.C. App. at 677, 608 S.E.2d at 830.

       Concerning the second element, Defendants argue there was insufficient

evidence of malice to survive summary judgment. “‘Malice’ in a malicious prosecution

claim may be shown by offering evidence that defendant ‘was motivated by personal

spite and a desire for revenge’ or that defendant acted with ‘reckless and wanton

disregard’ for plaintiffs’ rights.” Id. at 676, 608 S.E.2d at 829 (citations and quotation

marks omitted).     If Plaintiffs’ allegations are taken as true, Defendant Officers’

actions could be found to have been done with “‘reckless and wanton disregard’ for

plaintiffs’ rights.” Id.

       We hold there was sufficient evidence, when viewed in the light most favorable

to Plaintiffs, to survive Defendants’ motions for summary judgment on the individual

capacity claims of assault and battery, false imprisonment, and malicious prosecution

against all Defendant Officers in Roddie’s action, and against Officer Stanly and

Deputy Anderson in Frederick’s action. We stress that our holdings should not be

taken as the opinion of this Court concerning the relative strength of Plaintiffs’

evidence as compared to the evidence supporting Defendant Officers. We simply hold

that Plaintiffs have sufficiently forecast evidence creating issues of material fact,

which must be decided by the trier of fact. We remand for further action on Plaintiffs’



                                           - 22 -
                    LOPP V. ANDERSON & LOPP V. ANDERSON

                               Opinion of the Court



individual capacity claims against Defendant Officers, excepting Frederick’s

individual capacity claims against Officers Castaneda and Brinkley, which were

properly disposed of on summary judgment.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Judges STROUD and INMAN concur.




                                      - 23 -
