Richard PITTS
v.
VILLAGE INN PIZZA, INC.
No. 10.
Supreme Court of North Carolina.
November 28, 1978.*378 Barnes, Braswell & Haithcock by Michael A. Ellis, Goldsboro, for plaintiff-appellant.
Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr., Goldsboro, for defendant-appellee.
HUSKINS, Justice:
Upon argument of the case in this Court plaintiff's counsel stated that he was not pursuing any claim for wrongful discharge or for punitive damages but was seeking only actual damages of $5,000 for malicious prosecution. We therefore treat as abandoned his claim for damages for wrongful discharge and his claim for punitive damages for malicious prosecution. There remains for determination by this Court the question whether the Court of Appeals erred in affirming the order of Judge Tillery allowing defendant's motion for summary judgment as to plaintiff's claim for actual damages based upon the tort of malicious prosecution.
We have applied the guiding principles applicable to summary judgment under Rule 56, Rules of Civil Procedure, in many cases including Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).
Our Rule 56 and its federal counterpart are practically identical. Decisions both state and federal hold that the party moving for summary judgment has the burden of "clearly establishing the lack of any triable issue of fact by the record properly before the Court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." 6 Moore's Federal Practice § 56.15[8] at 642 (2d ed. 1976). The language of the rule itself conditions rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. G.S. 1A-1, Rule 56(b); Kessing v. Mortgage Corp., supra.
Rule 56(e) provides, among other things: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Thus, plaintiff here cannot rely on his complaint alone to defeat defendant's motion for summary judgment since the motion is accompanied by competent evidentiary matters in support of it.
Even so, the movant always has the burden of showing that there is no triable issue of fact and that movant is entitled to judgment as a matter of law; and the party opposing the motion "may yet succeed in defending against the motion for summary judgment if the evidence produced *379 by the movant and considered by the court is insufficient to satisfy the burden." Page v. Sloan, supra, 281 N.C. at 705, 190 S.E.2d at 194, and cases cited. "Where by the nature of things, the moving papers themselves demonstrate that there is inherent in the problem a factual controversy then, while it is certainly the part of prudence for the advocate to file one, a categorical counter-affidavit is not essential." Inglett and Co. v. Everglades Fertilizer Co., 255 F.2d 342, 348 (5th Cir. 1958). Or, as stated differently but to the same effect in Murphy v. Light, 257 F.2d 323, 326 (5th Cir. 1958): "Where the moving papers affirmatively disclose that the nature of the controversy presents good faith, actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used."
In light of the foregoing principles, we now consider the materials and documents presented in support of defendant's motion together with the agreement of the parties with respect thereto.
Due consideration of the documents and materials offered by defendant, I. e., the "exhibits" and the agreement of counsel for Judge Tillery to examine them, leads us to conclude that the granting of summary judgment by the trial court was erroneous. The evidence produced and considered by the court is insufficient to satisfy movant's burden of showing no triable issue of fact and that movant is entitled to judgment as a matter of law. The documents and materials were presented by agreement of the parties and must therefore be considered as supporting evidence for both sides.
To make out a case of malicious prosecution, plaintiff must show (a) malice, (b) want of probable cause, and (c) a favorable termination of the proceeding upon which the action is based. Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307 (1948), and cases therein cited.
Aside from express malice, which plaintiff may or may not be able to show at trial, implied malice may be inferred from want of probable cause in reckless disregard of plaintiff's rights. Taylor v. Hodge, supra; Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446 (1931). Favorable termination of the embezzlement charge against plaintiff is sufficiently shown by a voluntary dismissal of the charge in the superior court. Taylor v. Hodge, supra; Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740 (1912); Hatch v. Cohen, 84 N.C. 602 (1881). Hence, the case here must rise or fall on the question of probable cause for the embezzlement prosecution.
In cases grounded on malicious prosecution, probable cause "has been properly defined as the existence of such facts and circumstances, known to him at the time, as would induce a reasonable man to commence a prosecution." Morgan v. Stewart, 144 N.C. 424, 430, 57 S.E. 149, 151 (1907). The existence or nonexistence of probable cause is a mixed question of law and fact. Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966); Taylor v. Hodge, supra. If the facts are admitted or established it is a question of law for the court. Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609 (1950). Conversely, when the facts are in dispute the question of probable cause is one of fact for the jury.
A portion of the evidence placed before Judge Tillery tends to show prima facie the existence of probable cause, I. e., that after a hearing before Judge Hardy probable cause was found and defendant was bound over to superior court for trial and the grand jury thereafter found a true bill of indictment. Newton v. McGowan, 256 N.C. 421, 124 S.E.2d 142 (1962). A different portion of the evidence placed before Judge Tillery tends to show prima facie the absence of probable cause, i. e., a voluntary dismissal of the prosecution by the assistant district attorney in charge of the case with no reason assigned for the dismissal. In this posture, we hold that there remains a genuine issue of material fact as to the existence of probable cause to prosecute plaintiff for embezzlement. The conflicts in the evidence before Judge Tillery present a jury question and summary judgment for defendant was improvidently granted.
*380 When supporting documents and materials are stipulated into evidence for consideration by the court upon motion for summary judgment, and the stipulated materials are in conflict and support opposing conclusions with respect to a material fact, the non-moving party may not be charged with failure to offer rebuttal evidence and thus incur dismissal by way of summary judgment. See generally, 6 Moore's Federal Practice §§ 56.23 at 1388, 56.11[1.8] at 202 (2d ed. 1976); F & D Property Co. v. Alkire, 385 F.2d 97, 100 (10th Cir. 1967).
For the reasons stated the decision of the Court of Appeals upholding summary judgment for defendant is
REVERSED.