Turner v. Thomas

IN THE SUPREME COURT OF NORTH CAROLINA
No. 319PA14

Filed 21 December 2016

KIRK ALAN TURNER

v.
SPECIAL AGENT GERALD R. THOMAS, in his individual capacity and, in the
alternative, in his official capacity; SPECIAL AGENT DUANE DEAVER, in his
individual capacity and, in the alternative, in his official capacity; ROBIN
PENDERGRAFT, in her individual capacity and, in the alternative, in her official
capacity; and JOHN and JANE DOE SBI SUPERVISORS, in their individual
capacities and, in the alternative, in their official capacities

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 235 N.C. App. 520, 762 S.E.2d 252 (2014), affirming in part

and reversing in part an order entered on 11 April 2013 by Judge Stuart Albright in

Superior Court, Forsyth County. Heard in the Supreme Court on 18 May 2015.

Morrow Porter Vermitsky Fowler & Taylor, PLLC, by John C. Vermitsky, for
plaintiff-appellee.

Roy Cooper, Attorney General, by Tammera Hill and J. Joy Strickland,
Assistant Attorneys General, for defendant-appellants Thomas and Deaver.

EDMUNDS, Justice.

In this case, we consider the tort liability of law enforcement agents when their

criminal investigation went awry. Defendants Thomas and Deaver are or were at the

time of the events in question agents of the State Bureau of Investigation (SBI) who

participated in the investigation and prosecution of plaintiff for the murder of his

wife. The remaining defendants are or were SBI policymakers responsible for
 TURNER V. THOMAS

Opinion of the Court

supervising SBI agents, including Thomas and Deaver. After plaintiff was acquitted

on grounds of self-defense, he filed a civil complaint against defendants alleging

numerous claims, including malicious prosecution and intentional infliction of

emotional distress. The trial court granted motions to dismiss filed by all defendants

pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, but the

Court of Appeals reversed as to these two claims against Thomas and Deaver,

reinstating the claims. We conclude that, because probable cause existed for the

State to indict plaintiff for first-degree murder, plaintiff’s suit for malicious

prosecution necessarily would have failed. Accordingly, we reverse the holding of the

Court of Appeals as to this claim. However, we agree with the Court of Appeals that,

taken in the light most favorable to plaintiff, the complaint alleges elements of

intentional infliction of emotional distress sufficient to withstand a motion to dismiss.

Consequently, we affirm the holding of the Court of Appeals as to this claim.

On 12 September 2007, Kirk Alan Turner (plaintiff) and his friend Gregory

Adam Smithson (Smithson) met at plaintiff’s marital residence so Smithson could

retrieve some property stored there. While at the home, plaintiff discussed personal

matters with his wife Jennifer. During the conversation, Jennifer attacked plaintiff

with a large spear, stabbing him multiple times in the thigh and groin area. In

reaction, plaintiff pulled a pocketknife from his right front pocket and cut Jennifer

twice in the neck, inflicting fatal injuries.

-2-
 TURNER V. THOMAS

Opinion of the Court

Smithson called 911 and performed CPR on Jennifer until emergency

personnel arrived. The Davie County Sheriff’s Office responded to the call and

requested the assistance of the SBI. SBI Special Agent E.R. Wall arrived and notified

SBI Assistant Special Agent in Charge K.A. Cline that a blood spatter expert would

be needed to analyze the scene. Several hours later, Agent Wall called Agent Cline

again to suggest that a blood spatter expert might not be needed after all because

closer examination indicated that the blood spatter most likely was caused by arterial

spurting from Jennifer’s throat wound.

Two days later, Special Agent Gerald R. Thomas (defendant Thomas) arrived

at plaintiff’s home to conduct a blood spatter analysis of the scene. Later that day,

he conducted a bloodstain analysis of various articles of clothing collected during the

course of the investigation, including a gray T-shirt worn by plaintiff during the

incident. Before beginning his examinations, defendant Thomas was informed by

SBI Special Agent D.J. Smith that Jennifer apparently stabbed plaintiff with a spear

and, in response, plaintiff cut her throat with a pocketknife. Defendant Thomas

completed his examinations that same day and about two weeks later presented a

written report documenting his findings. The report stated that a large bloodstain

on plaintiff’s gray T-shirt “was consistent with a transfer bloodstain pattern”

resulting from a bloody hand being wiped on the shirt. The report further noted

several smaller bloodstains that were consistent with blood dripping onto the shirt.

-3-
 TURNER V. THOMAS

Opinion of the Court

On 13 December 2007, plaintiff was indicted for the first-degree murder of

Jennifer. He was initially denied bond and detained for one month before being

released on a bond of one million dollars. Plaintiff had to borrow money from family

and friends to post his bond and retain defense counsel.

The following allegations are taken from plaintiff’s complaint. After plaintiff

was indicted, defendant Thomas met on 15 January 2008 with SBI Special Agent

Duane Deaver (defendant Deaver); Captain Jerry Hartman, lead investigator for the

Davie County Sheriff’s Office; a lawyer from the district attorney’s office; and another

individual identified in the pleadings only as “Mr. Marks” to discuss both the

feasibility of plaintiff’s version of the events and their own theory of the case. During

this meeting, defendants Thomas and Deaver and their colleagues theorized that

plaintiff killed Jennifer for the purpose of carrying out a scheme to avoid a divorce

and subsequent equitable distribution proceeding. They additionally theorized that

plaintiff stabbed himself with the spear and staged the scene to make the killing look

like self-defense.

Plaintiff further alleged that, to prove their theory, defendants Thomas and

Deaver needed to show that the bloodstain on plaintiff’s T-shirt was not a mirror

image stain from plaintiff’s hand but was instead a transfer pattern consistent with

plaintiff having wiped a knife on the shirt. With the alleged approval of defendant

Pendergraft, their supervisor, defendants Thomas and Deaver conducted tests for the

purpose of “shor[ing] up” this new theory. Defendant Thomas again took samples

-4-
 TURNER V. THOMAS

Opinion of the Court

from various evidentiary items for a second examination but failed properly to label

his work in such a way that someone reviewing the evidence would be able to

determine the source of each sample. Defendant Thomas also failed to make any

record of the new theory. Defendants Thomas and Deaver videotaped their numerous

attempts to duplicate with a knife the blood smear on the plaintiff’s T-shirt. After a

success, defendant Deaver can be heard on the video saying: “Oh, even better! Holy

cow, that was a good one!” and “Beautiful! That’s a wrap, baby!”

Plaintiff further alleged that, following the knife smear test and a second

review of the evidence, defendant Thomas created a second written report that

altered his initial report by replacing the words “consistent with a bloody hand being

wiped on the shirt” with “consistent with a pointed object being wiped on the shirt.”

This second report purported to convey results of the “examination of clothing for

bloodstain patterns on Friday, September 14, 2007,” even though the true date of the

second examination was 15 January 2008. Defendant Thomas’s second report failed

to indicate either that it was based on a second review of the evidence or that it was

not the original report. Plaintiff alleged that defendants Thomas and Deaver

conducted these tests not only to prove their theory that plaintiff did not act in self-

defense, but “to maintain the appearance of probable cause where none existed and

to obtain a first-degree murder conviction of [plaintiff] despite evidence to the

contrary.”

-5-
 TURNER V. THOMAS

Opinion of the Court

In his report, defendant Thomas stated that Captain Hartman told him “he

was present when emergency services cut the gray T-shirt from Mr. Turner’s body

and that the question [sic] blood stain was observed present in its current condition

on the shirt.” The report further stated that “Hartman said that he took the shirt

from Emergency Medical Services and placed it in a secure area [an adjacent room],

laying flat on the floor to dry.”1

At plaintiff’s trial for Jennifer’s murder, defendant Thomas gave testimony

about plaintiff’s T-shirt that was consistent with his report. However, Captain

Hartman testified that he did not arrive at the crime scene until two hours after

plaintiff was taken to the hospital and that he was not present when plaintiff’s T-

shirt was removed, contradicting defendant Thomas’s account. In addition, crime

scene photographs showed plaintiff’s T-shirt “crumpled on the floor, inside out.”

Plaintiff’s defense expert Stuart James disagreed with defendants’ bloodstain

analysis, giving opinion testimony that the bloodstain was most likely a “mirror

stain” created either when the shirt was folded as emergency medical service

technicians cut off the shirt or when they tossed it onto the floor. On 21 August 2009,

the jury found plaintiff not guilty of the first-degree murder of his wife, by reason of

self-defense.

1 The complaint does not specify whether defendant Thomas included this information
in his initial report or added it following his second examination of the evidence.

-6-
 TURNER V. THOMAS

Opinion of the Court

On 14 November 2011, plaintiff filed his original complaint in Superior Court,

Forsyth County. On 4 April 2012, plaintiff voluntarily dismissed that complaint and

immediately refiled a complaint making the same substantive allegations against the

same defendants. In addition to defendants Thomas and Deaver, plaintiff named

former SBI Director Robin Pendergraft and SBI supervisors John and Jane Doe as

defendants in their individual and official capacities. Plaintiff’s complaint alleged

four causes of action against defendants Thomas and Deaver in their individual

capacities: (1) intentional infliction of emotional distress, (2) abuse of process, (3)

malicious prosecution, and (4) false imprisonment. The complaint also alleged

negligence claims against defendants Pendergraft and John and Jane Doe. Finally,

plaintiff alleged federal constitutional claims under 42 U.S.C. § 1983 against all

defendants in their individual and official capacities, and claims under the North

Carolina Constitution against all defendants in their official capacities.

In response, all defendants filed motions to dismiss all charges. At a hearing

on the motions, plaintiff conceded that dismissal was appropriate for the section 1983

claims against all defendants in their official capacities, for the negligence claims,

and for all claims against supervisors John and Jane Doe. On 11 April 2013, the trial

court granted defendants’ motions to dismiss plaintiff’s remaining claims pursuant

to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure.2

2 It appears from the record that the citation to Rule 12(b)(1), lack of subject matter
jurisdiction, refers to constitutional claims brought against defendants. None of those

-7-
 TURNER V. THOMAS

Opinion of the Court

Plaintiff appealed to the Court of Appeals, which affirmed the trial court’s

dismissal of all claims against defendants Pendergraft and John and Jane Doe.

Turner v. Thomas, 235 N.C. App. 520, 524, 762 S.E.2d 252, 257-58 (2014). In

addition, that court affirmed the trial court’s dismissal of all claims against

defendants Thomas and Deaver except for the claims for malicious prosecution, id. at

530, 762 S.E.2d at 261, and intentional infliction of emotional distress, id. at 537, 762

S.E.2d at 265. The Court of Appeals held that the trial court erred in dismissing

these two claims, concluding plaintiff had alleged sufficient elements of both torts to

survive a motion to dismiss. Id. at 540, 762 S.E.2d at 267. On 22 January 2015, we

allowed petitions for discretionary review filed by defendants Thomas and Deaver

(hereinafter, defendants).

In determining whether the trial court properly dismissed plaintiff’s claims

against defendants for malicious prosecution and intentional infliction of emotional

distress, we consider “whether, as a matter of law, the allegations of the complaint,

treated as true, are sufficient to state a claim upon which relief may be granted.”

Newberne v. Dep’t of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618 S.E.2d 201,

203 (2005) (quoting Meyer v. Walls, 347 N.C. 97, 111, 489 S.E.2d 880, 888 (1997)).

“This Court treats factual allegations in a complaint as true when reviewing a

dismissal under Rule 12(b)(6).” Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C.

constitutional claims are before us now and the parties have made no arguments relating to
jurisdiction. Accordingly, we will address the trial court’s Rule 12(b)(6) rulings only.

-8-
 TURNER V. THOMAS

Opinion of the Court

222, 225, 695 S.E.2d 437, 440 (2010) (citing Stein v. Asheville City Bd. of Educ., 360

N.C. 321, 325, 626 S.E.2d 263, 266 (2006)).

To establish malicious prosecution, a plaintiff must show that the defendant

(1) initiated or participated in the earlier proceeding, (2) did so maliciously, (3)

without probable cause, and (4) the earlier proceeding ended in favor of the plaintiff.

N.C. Farm Bureau Mut. Ins. Co. v. Cully’s Motorcross Park, Inc., 366 N.C. 505, 512,

742 S.E.2d 781, 786 (2013) (citations omitted). Defendants contend that the Court of

Appeals correctly identified the elements of a malicious prosecution claim but erred

in concluding that plaintiff’s complaint sufficiently alleged that probable cause was

lacking to pursue a first-degree murder case against him. Defendants do not

challenge the sufficiency of the evidence as to the other elements of malicious

prosecution. Accordingly, we begin by considering plaintiff’s allegations that

defendants did not have probable cause to initiate criminal proceedings against

plaintiff.

“Where the claim is one for malicious prosecution, ‘[p]robable cause . . . has

been properly defined 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.’ ” Best v. Duke Univ., 337 N.C. 742, 750, 448 S.E.2d 506, 510 (1994)

(alterations in original) (emphasis added) (quoting Cook v. Lanier, 267 N.C. 166, 170,

147 S.E.2d 910, 914 (1966)). We have consistently held that whether or not probable

cause exists is determined at the time prosecution begins. Williams v. Boylan–Pearce,

-9-
 TURNER V. THOMAS

Opinion of the Court

Inc., 69 N.C. App. 315, 318-19, 317 S.E.2d 17, 19 (1984), aff’d per curiam, 313 N.C.

321, 327 S.E.2d 870 (1985); see also Cook, 267 N.C. at 170, 147 S.E.2d at 914 (“In

order to give a cause of action for malicious prosecution, such prosecution must have

been maliciously instituted.” (citing Wingate v. Causey, 196 N.C. 71, 144 S.E. 530

(1928)); Taylor v. Hodge, 229 N.C. 558, 560, 50 S.E. 307, 309 (1948) (establishing that

malicious prosecution claims hinge on whether a defendant “laid the charge”

regardless of facts that should have convinced him of plaintiff’s innocence); Morgan

v. Stewart, 144 N.C. 424, 430, 57 S.E. 149, 151 (1907) (“Probable cause, in cases of

this kind, 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.” (citation omitted)). The subsequent acquittal of a defendant does not,

as a matter of law, automatically negate the existence of probable cause at the time

prosecution was commenced. Bell v. Pearcy, 33 N.C. (11 Ired.) 233, 234 (1850).

The grand jury indicted plaintiff for first-degree murder on 13 December 2007.

Plaintiff argues correctly that a grand jury’s action in returning an indictment is only

prima facie evidence of probable cause and that, as a result, the return of an

indictment does not as a matter of law bar a later claim for malicious prosecution.

See, e.g., Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307 (1948) (holding that even

though a magistrate initially found probable cause, the defendant in a malicious

prosecution suit was not entitled to dismissal as a matter of law after the suit

concluded in the plaintiff’s favor). However, cases cited to us by both parties and

-10-
 TURNER V. THOMAS

Opinion of the Court

referenced in the opinion of the Court of Appeals involve conduct by defendants that

occurred before the return of an indictment. See Williams v. Kuppenheimer Mfg. Co.,

105 N.C. App. 198, 201, 412 S.E.2d 897, 900 (1992) (concluding that criminal

prosecution of the plaintiff would have been unlikely if the defendant had not

provided virtually all the evidence to investigators prior to indictment); see also Jones

v. Gwynne, 312 N.C. 393, 403, 323 S.E.2d 9, 15 (1984) (noting that the malicious

prosecution claim was based on the issuance of arrest warrants that the prosecutor

voluntarily dismissed, not on subsequent grand jury indictments that initiated new

proceedings against the defendant); Stanford v. Grocery Co., 143 N.C. 419, 425, 55

S.E. 815, 817 (1906) (explaining that the action triggering the malicious prosecution

claim was “taking out the warrant and causing the plaintiff’s arrest”). Here, in

contrast, plaintiff’s suit focuses on actions defendants took after the grand jury

returned indictments against him. Accordingly, to determine whether probable cause

existed, we must consider the evidence that was available to the investigators and

presented to the grand jury in December 2007.

That evidence indicated that plaintiff inflicted two lethal slashes to his wife’s

neck, resulting in her death. This evidence was supported by defendants’ original

forensic report, which stated that the bloodstain on plaintiff’s T-shirt was consistent

with a bloody hand being wiped on the shirt. Based on this and other evidence, the

grand jury returned an indictment for first-degree murder. This independent

determination by the grand jury established prima facie the existence of probable

-11-
 TURNER V. THOMAS

Opinion of the Court

cause. See Stanford, 143 N.C. at 426, 55 S.E. at 817. Although plaintiff was

subsequently acquitted on the basis of self-defense, that defense was presented at

trial and does not necessarily negate the existence of probable cause at the time the

case was brought to the grand jury. Plaintiff’s complaint alleges that defendants

failed to investigate the incident properly and generated incorrect and inaccurate

information for presentation to the grand jury. However, the critical actions

complained of took place after the indictment was returned. Based on the facts

known to the investigators at the time of the grand jury proceedings, we are satisfied

that a reasonable and prudent person would believe there was probable cause

sufficient to prosecute plaintiff for first-degree murder.

The concurring opinions argue that this Court should recognize that a

malicious prosecution case can arise after a magistrate or grand jury finds probable

cause if that probable cause later evaporates but the prosecution nevertheless

continues in bad faith (the “continuation theory”). We need not address that theory

here for, assuming arguendo that this Court would adopt it under the proper

circumstances, it is not before us now. Plaintiff’s complaint is not that the original

probable cause dissipated. Instead, the gravamen of plaintiff’s argument is that

probable cause never existed and that defendants’ investigation following indictment

was corrupt and shoddy. However, we have determined that the grand jury correctly

found probable cause, and nothing in the subsequent investigation revealed facts that

-12-
 TURNER V. THOMAS

Opinion of the Court

disproved that probable cause. As a result, we are not faced with facts that invoke

the continuation theory.

Therefore, the trial court properly concluded that plaintiff’s malicious

prosecution claim against defendants should be dismissed under Rule 12(b)(6)

because plaintiff failed to state a claim upon which relief may be granted. We reverse

the holding of the Court of Appeals to the contrary.

We next address plaintiff’s claim of intentional infliction of emotional distress.

Elements of this tort are “(1) extreme and outrageous conduct [by the defendant], (2)

which is intended to cause and does cause (3) severe emotional distress to another.”

Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). The tort also may

be established when a “defendant’s actions indicate a reckless indifference to the

likelihood that they will cause severe emotional distress.” Id. at 452, 276 S.E.2d at

335. Conduct constituting this cause of action may be found in “an abuse by the actor

of a position . . . which gives him . . . power to affect” the interests of another.

Restatement (Second) of Torts § 46 cmt. e (Am. Law Inst. 1965). We have held that

extreme and outrageous conduct is that which “exceeds all bounds of decency

tolerated by society.” West v. King’s Dep’t Store, Inc., 321 N.C. 698, 704, 365 S.E.2d

621, 625 (1988) (citing Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979),

abrogated in part by Dickens, 302 N.C. 437, 276 S.E.2d 325), and is “regarded as

atrocious, and utterly intolerable in a civilized community,” Briggs v. Rosenthal, 73

N.C. App. 672, 677, 327 S.E.2d 308, 311 (1985). Our state has set a “high threshold”

-13-
 TURNER V. THOMAS

Opinion of the Court

to satisfy this element. Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d 710,

715 (1999), rev’d on other grounds, 352 N.C. 77, 530 S.E.2d 829 (2000). Foreseeability

of injury, while not an element of the tort, is a factor to consider in assessing the

outrageousness of a defendant’s conduct. West, 321 N.C. at 705, 365 S.E.2d at 625

(citing Dickens, 302 N.C. 437, 276 S.E.2d 325).

We begin by considering the first element of the tort, whether defendants’

conduct as alleged was extreme and outrageous. According to plaintiff, defendants

concocted a motive for plaintiff to murder his wife and a theory to explain how that

murder was carried out. Defendants then made a calculated decision to conduct and

repeat experiments until they achieved a bloodstain pattern that supported their

theory. When they achieved results they deemed satisfactory, defendant Thomas

then rewrote the conclusion of his earlier blood spatter and bloodstain report without

stating that he was presenting a new or amended version of the original report. To

the contrary, defendant Thomas’s report indicated the conclusion reached resulted

from the original analysis of the evidence conducted on 14 September 2007.

Plaintiff’s allegations do not portray agents vigorously pursuing an

investigation with a determination to find the truth, a practice law-abiding citizens

not only endorse but expect. Instead, plaintiff’s allegations paint a picture of law

enforcement officials deliberately abusing their authority as public officials to

manipulate evidence and distort a case for the purpose of reaching a foreordained

conclusion of guilt. We do not doubt that plaintiff’s complaint alleged extreme and

-14-
 TURNER V. THOMAS

Opinion of the Court

outrageous conduct by these defendants sufficient to withstand a Rule 12(b)(6) motion

to dismiss.

As to the second element of the tort, plaintiff alleged that defendants acted

with intent to inflict emotional distress. While standing trial for first-degree murder

is unquestionably stressful for anyone, plaintiff’s complaint does not allege that

defendants were merely negligent or that their investigation was inadequate.

Instead, the complaint alleges sinister motives and conduct by defendants specifically

aimed toward the improper purpose of wrongfully convicting plaintiff of murder. See

Needham v. Price, ___ N.C. ___, 780 S.E.2d 549, 551 (2015) (holding that the

“defendant’s conduct did not rise to the level of willful and malicious conduct” in the

context of parent-child immunity because the evidence did not show the defendant’s

“conduct was directed towards the [injured children]”). Specifically, the complaint,

which we read in the light most favorable to plaintiff, alleges that defendants

“wantonly and maliciously conducted unscientific tests to ‘shore up’ ” their theory of

the case, “wantonly failed to label [their] work properly,” altered and manipulated

evidence, and acted “to maintain the appearance of probable cause where none

existed and to obtain a first-degree murder conviction of [plaintiff] despite evidence

to the contrary.” These allegations do not describe an investigation that was

incompetent or incomplete, or one that skeptically explored the validity of plaintiff’s

self-defense claim. Instead, the complaint contends that defendants knew the results

they wanted before they began and disregarded all evidence to the contrary. That

-15-
 TURNER V. THOMAS

Opinion of the Court

plaintiff would suffer mental anguish as a result of defendants’ conduct is readily

foreseeable. Moreover, plaintiff’s allegations indicated that defendants were

recklessly indifferent to the consequences of their actions. Accordingly, plaintiff’s

allegation of the intent element of his claim is sufficient to survive a Rule 12(b)(6)

motion to dismiss.

Finally, we consider whether plaintiff has sufficiently alleged that he suffered

severe emotional distress. The complaint states, among other things, that severe

emotional distress manifested itself “in diagnosable form . . . including, inter alia: a.

Depression; b. Anxiety; c. Loss of sleep; d. Loss of appetite; e. Lack of concentration;

f. Difficulty remembering things; g. Feeling alienated from loved ones; h. Shame; and

i. Loss of respect with the community and co-workers.” Plaintiff further alleged that

defendants’ conduct caused him damages “in excess of $10,000.00.” We find that

these are sufficient allegations of severe emotional distress.

Taking all of plaintiff’s allegations in the light most favorable to him, as we

must at the pleading stage, we hold plaintiff has alleged elements of intentional

infliction of emotional distress sufficient to withstand a motion to dismiss made

pursuant to Rule 12(b)(6). As this case moves forward to summary judgment or trial,

plaintiff will have to prove that his allegations are true, including that defendants’

conduct amounted to more than substandard police work and was, instead, directed

at plaintiff for an improper purpose. Accordingly, we affirm the decision of the Court

of Appeals holding the trial court erred in dismissing this claim. This case is

-16-
 TURNER V. THOMAS

Opinion of the Court

remanded to the Court of Appeals for further remand to the trial court for additional

proceedings consistent with this opinion.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.

Justice ERVIN concurring, in part, and concurring in the result, in part.

Although I concur in the Court’s decision with respect to plaintiff’s intentional

infliction of emotional distress claim and in the Court’s determination that plaintiff

has failed to sufficiently state a malicious prosecution claim in his complaint, I am

unable to agree with the logic that the Court has employed in upholding the dismissal

of plaintiff’s malicious prosecution claim. As a result, I concur in the Court’s opinion,

in part, and concur in the result reached by the Court, in part.

In determining that plaintiff’s complaint fails to state a malicious prosecution

claim, the Court begins by stating that “[w]hether or not probable cause exists is

determined at the time prosecution begins.”3 After noting that “plaintiff’s suit focuses

on actions defendants took after the grand jury returned indictments against him”

3 Although the majority relies on Williams v. Boylan-Pearce, Inc., 69 N.C. App. 315,
318-19, 317 S.E.2d 17, 19 (1984), aff’d per curiam on other grounds, 313 N.C. 321, 327 S.E.2d
870 (1985), in support of this proposition, I do not view the opinion in that case as holding
that the issue of probable cause in a malicious prosecution case must be resolved based solely
upon an analysis of the facts in existence during a window of time between the commission
of the underlying criminal act and the point at which the prosecution of the plaintiff began.
Moreover, the only issue before this Court in that matter, which came to us by way of a partial
dissenting opinion, related to the availability of punitive damages rather than the sufficiency
of the plaintiff’s showing of a want of probable cause. Id. at 322-23, 317 S.E.2d at 21-22
(Johnson, J., concurring in part and dissenting in part).

-17-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

and stating that, “to determine whether probable cause existed, we must consider the

evidence that was available to the investigators and presented to the grand jury in

December 2007,” the Court points out that the fact that the Davie County grand jury

returned a bill of indictment charging plaintiff with first-degree murder in connection

with the death of his wife “established prima facie the existence of probable cause.”

In addition, after acknowledging that plaintiff has alleged “that defendants failed to

investigate the incident properly and generated incorrect and inaccurate information

for presentation to the grand jury,” the Court notes that “the critical actions

complained of took place after the indictment was returned” and holds that, “[b]ased

on the facts known to the investigators at the time of the grand jury proceedings,” “a

reasonable and prudent person would believe there was probable cause sufficient to

prosecute plaintiff for first-degree murder.”

The Court’s focus upon the necessity for plaintiff to establish the absence of

probable cause at the time that criminal charges were initially lodged against him

takes an unduly narrow view of the scope of the malicious prosecution claim that

plaintiff has attempted to assert in his complaint. Simply put, the Court reads

plaintiff’s malicious prosecution claim as being focused entirely upon the fact that he

was indicted for murdering his wife. I do not, however, believe that plaintiff’s claim

is limited in the manner described by the Court.4 A significant component of

4In fact, a careful study of the brief that plaintiff filed before this Court causes me to
question the extent to which plaintiff attempted to state a malicious prosecution claim

-18-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

plaintiff’s allegations against defendants5 consists of a description of their conduct in

concocting and performing a supplemental blood smear “test” for the purpose of

producing results that validated the State’s decision to proceed against plaintiff.

According to plaintiff’s complaint, “[t]his evidence was crucial to maintain probable

cause for a first-degree murder charge,” with the underlying “test” having been

conducted in order “to maintain the appearance of probable cause where none

existed.” In addition, plaintiff has alleged that both defendants should be found liable

to plaintiff for malicious prosecution on the grounds that they “participated in and

caused the institution of criminal proceedings against” plaintiff, with their

misconduct having included, among other things, a failure “to properly investigate

the circumstances of” the death of plaintiff’s wife and plaintiff’s “claim of self-

defense”; the inclusion of “false and misleading information in investigative reports”;

and a failure to “remain fair, neutral and truthful prior to and after the institution of

criminal proceedings against” plaintiff. As a result, I am inclined to believe that

against either defendant arising from the Davie County grand jury’s initial decision to charge
him with murdering his wife. However, I do not believe that we need to make a definitive
determination of the exact nature of the malicious prosecution claim that plaintiff has
attempted to state in his complaint given his failure to allege a viable malicious prosecution
claim against defendants on the basis of either of the two theories discussed in the text of
this separate opinion.

5 Special Agent Deaver did not become involved in the prosecution of plaintiff until
sometime after the Davie County grand jury charged plaintiff with murdering his wife. For
that reason, the fact that plaintiff sought to obtain a malicious prosecution recovery against
Special Agent Deaver clearly indicates that plaintiff’s claim rested upon more than an
assertion that he was initially indicted for murdering his wife in the absence of probable
cause.

-19-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

plaintiff seeks to obtain a malicious prosecution recovery from defendants based upon

claims that criminal charges were both initially instituted against him and continued

against him without probable cause and cannot, for that reason, agree with the

Court’s decision to limit its analysis to a determination of the sufficiency of the

allegations that defendants participated in the institution of criminal charges against

plaintiff despite the absence of probable cause to believe that he was guilty of the

offense with which he was charged and conclude, for that reason, that we must

evaluate the validity of plaintiff’s effort to plead a “continuation” claim in order to

fully resolve the issues that have been properly presented for our consideration in

this case.

“To make out a case of malicious prosecution [based upon a prior criminal

prosecution,] the plaintiff must allege and prove that the defendant instituted, or

procured, or participated in, a criminal prosecution against him maliciously, without

probable cause, which ended in failure.” Cook v. Lanier, 267 N.C. 166, 169, 147 S.E.2d

910, 913 (1966) (citing Greer v. Skyway Broad. Co., 256 N.C. 382, 124 S.E.2d 98

(1962); Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609 (1950); and Dickerson v. Atl.

Ref. Co., 201 N.C. 90, 159 S.E. 446 (1931)). Consistently with this Court’s reference

to the possibility of malicious prosecution liability for “participation” in a wrong

prosecution, a divided panel of the Court of Appeals upheld the sufficiency of the

evidence to support a trial court judgment awarding the plaintiff $12,500 in damages

in a malicious prosecution case in which the defendant continued to pursue a criminal

-20-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

citation charging the plaintiff with shoplifting several packs of cigarettes despite the

fact that the plaintiff, on the day after the issuance of the shoplifting citation,

presented the defendant with a receipt indicating that he had purchased the

cigarettes that he had been charged with concealing. Allison v. Food Lion, Inc., 84

N.C. App. 251, 252-55, 352 S.E.2d 256, 256-58 (1987). Although then-Judge Parker

dissented from the court’s decision on the grounds that, “[a]t the critical time, i.e., the

moment at which [the] plaintiff was apprehended in [the] defendant’s store, the

undisputed evidence” tended to support a determination that the plaintiff had

shoplifted the cigarettes in question, id. at 256, 352 S.E.2d at 258 (Parker, J.,

dissenting), and that “[t]he pertinent inquiry is not whether [the] defendant’s store

manager should have believed [the] plaintiff, but rather whether under the

circumstances existing at the time the criminal action was instituted, the store

manager acted as a person of reasonable prudence in concluding that the crime

charged had been committed,” id. at 256, 352 S.E.2d at 259, this Court was

apparently never asked to examine the correctness of the majority’s decision. As a

result, the Court of Appeals’ determination that a malicious prosecution action could

properly be maintained in the event that the plaintiff demonstrated, based upon

events occurring after the institution of the underlying criminal case, that the

defendant persisted in pursuing a prosecution that had become groundless, has been

an established and unquestioned part of North Carolina malicious prosecution

-21-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

jurisprudence since 1987.6 See 2 N.C.P.I. – Civ. 801.00 (gen. civ. vol. June 2014)

(“Malicious Prosecution–Criminal Proceeding”), at 1 & n.2 (allowing a finding of

liability in the event that the jury determines, among other things, that the defendant

“[caused a criminal proceeding to be continued] against the plaintiff without probable

cause” (citing Allison, 84 N.C. App. at 254, 352 S.E.2d at 257) (majority opinion))); 7

see also Charles E. Day & Mark W. Morris, North Carolina Law of Torts § 9.40, at

105 (3d ed. 2012) (stating that, in light of Allison, “it can be suggested that a

continuation of prosecution after probable cause is known not to exist may be a basis

for a malicious prosecution action, notwithstanding that probable cause might have

existed when the prosecution was initiated”); 1 William S. Haynes, North Carolina

Tort Law § 14-3(A), at 513-14 (1989) (stating that “[t]he gist of an action for malicious

prosecution is the wrongful initiation, encouragement or continuation, of a prior valid

process or proceeding” (citation omitted), and that “[a] defendant may also be found

liable for the tort of malicious prosecution, notwithstanding the fact that he initially

6 Before the trial court, plaintiff’s counsel argued that defendants lacked “a very good
answer” for Allison, which he described as holding that “[m]alicious prosecution is either the
initiation of a criminal proceeding without probable cause or the continuation of a proceeding
when it is discovered that probable case no longer exists,” and stated that plaintiff’s
complaint “clearly alleged” a claim stemming from defendants’ involvement in the
continuation of the criminal charges that had earlier been lodged against plaintiff in the
absence of the necessary probable cause.

7 Although the “Pattern Jury Instructions are not binding on this Court,” Stark v. Ford
Motor Co., 365 N.C. 468, 478, 723 S.E.2d 753, 760 (2012) (citation omitted), they do express
“ ‘the long-standing, published understanding’ of . . . case law and statutes,” State v. Walston,
367 N.C. 721, 731, 766 S.E.2d 312, 319 (2014) (quoting Stark, 365 N.C. at 478, 723 S.E.2d at
760).

-22-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

had probable cause to instigate a criminal prosecution, if he afterwards secures

knowledge that the charge is not well founded and thereafter fails to intervene for

the purpose of having the criminal prosecution discontinued or to do all that is

reasonably possible to do to sever his connection with the prosecution”).

Aside from the well-established nature of the “continuation” theory for

purposes of North Carolina law, the logic underlying that theory has been

consistently recognized by leading encyclopedias and treatises addressing American

tort law. See Restatement (Second) of Torts § 655 (Am. Law. Inst. 1977) (stating that

“[a] private person who takes an active part in continuing or procuring the

continuation of criminal proceedings initiated by himself or by another is subject to

the same liability for malicious prosecution as if he had then initiated the

proceedings”); id. § 655 cmt. b (pointing out that “[t]he rule stated in this Section

applies when the defendant has himself initiated criminal proceedings against

another or procured their institution, upon probable cause and for a proper purpose,

and thereafter takes an active part in pressing the proceedings after he has

discovered that there is no probable cause for them,” and “applies also when the

proceedings are initiated by a third person, and the defendant, knowing that there is

no probable cause for them, thereafter takes an active part in procuring their

continuation”); 52 Am. Jur. 2d Malicious Prosecution § 21, at 207-08 (2011) (stating

that a malicious prosecution action can be maintained in the event that “the

defendant instigated or encouraged, commenced or continued, initiated or procured,

-23-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

or caused or assisted in causing the prosecution complained of, or advised, aided,

cooperated, or assisted in the prosecution of the case” and that “[a] person who had

no part in the commencement of the action, but who participated in it at a later time,

may be held liable for malicious prosecution” (footnotes omitted)); id. § 26, at 211-12

(stating that “[a] person who plays an active role in continuing an unfounded criminal

proceeding is liable for malicious prosecution, and even if there was probable cause

for the commencement of an action, if the person afterwards acquires the means of

asserting the charge was not well founded, his or her failure to intervene and have

the prosecution discontinued or to sever his or her connection with it subjects that

person to malicious prosecution liability” (footnotes omitted)); id. § 54, at 236 (stating

that, although “the critical time” in some jurisdictions “for determining whether

probable cause existed . . . is when the prosecution was initiated or began,” in other

jurisdictions, “liability for malicious prosecution may arise, even though the lawsuit

was commenced with probable cause, if the suit is prosecuted after it later appears

there is no probable cause” (citations omitted)); 54 C.J.S. Malicious Prosecution § 13,

at 747 (2010) (stating that “[a] cause of action for malicious prosecution is not limited

to the situation where the present defendant initiated the prior proceeding, and one

who plays an active role in continuing an unfounded criminal proceeding when

otherwise it would have been terminated may be liable for malicious prosecution”

(footnotes omitted)); id. § 18, at 751 (stating that, even if “the defendant is granted

immunity for complying with a statute governing disclosure of information to a

-24-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

prosecutorial officer, the defendant may nevertheless be liable for malicious

prosecution where he or she fails to request termination of the proceeding after

learning facts regarding [the] accused’s innocence subsequent to swearing out a

complaint leading to the accused’s arrest” (citation omitted)); id. § 29, at 762 (stating

that “[c]ontinuation of a prosecution in the face of facts that undermine probable

cause can support a malicious prosecution claim” (citation omitted)); 3 Dan B. Dobbs,

Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 587, at 389 (2d ed. 2011)

(stating that “[m]alicious prosecution can be established only if [ ] the defendant has

instigated or continued to pursue a criminal proceeding”); id. § 588, at 396 (stating

that, “[w]hen liability is based upon continuance rather than initiation of the

prosecution, probable cause must be judged on appearances at the time the accuser

acts to continue the prosecution, as where he refuses to withdraw his complaint even

after he has learned of the accused’s innocence” (citation omitted)); 1 Fowler V.

Harper et al., Harper, James and Gray on Torts § 4.3, at 467-68 (3d ed. 2006) (stating

that “continuing to prosecute [criminal] proceedings maliciously after learning of

their groundless nature will result in liability, although they had been begun in good

faith and with probable cause,” since “it is as much a wrong against the victim, and

as socially or morally unjustifiable to take an active part in a prosecution after

knowledge that there is no factual foundation for it, as to instigate such proceedings

in the first place” (citations omitted)); id. § 4.5, at 481 (stating that “only facts known

at the time the defendant initiated the prosecution or wrongfully continued an action

-25-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

are pertinent” in the probable cause determination (citations omitted)); W. Page

Keeton et al., Prosser and Keeton on the Law of Torts § 119, at 872 (5th ed. 1984)

(stating that “[t]he defendant may be liable either for initiating or for continuing a

criminal prosecution without probable cause” (footnote omitted)).8 As a result, a wide

variety of recognized secondary authorities in the field of tort law uphold the validity

of the “continuation” theory adopted in Allison.

An analysis of the reported decisions concerning this issue clearly indicates

that the vast majority of American jurisdictions that have considered the viability of

the “continuation” theory have recognized its existence. As the Supreme Court of

California stated in Zamos v. Stroud, 32 Cal. 4th 958, 87 P.3d 802 (2004), “the rule

in every other state that ha[d] addressed the question [at the time the Supreme Court

of California rendered its decision was], and in many states has long been, that the

tort of malicious prosecution does include continuing to prosecute a lawsuit

discovered to lack probable cause,” id. at 966, 87 P.3d at 807, that “[t]he

Restatement’s position on this question has been adopted or was anticipated by the

courts of a substantial number of states,” id. at 967, 87 P.3d at 808 (citations omitted),

and that the defendants had not presented, nor had the Court as of that point found,

8 To be sure, the authors of the same treatise also state that “[p]robable cause is judged
by appearances to the defendant at the time he initiates prosecution, not by facts discovered
later,” with such subsequently discovered facts being “relevant only to show the entirely
different defense based on the accused’s guilt in fact.” Id. § 119, at 876 (footnote omitted).
However, I do not believe that this statement undercuts the argument advanced in the text
of this separate opinion given that, when read literally, it only applies to situations involving
the initiation of the underlying criminal proceeding rather than to its continuation.

-26-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

“a single state that has declined to adopt the Restatement’s view in this regard,” id.

at 967, 87 P.3d at 808. The states noted in Zamos include Alabama, Laney v. Glidden

Co., 239 Ala. 396, 399, 194 So. 849, 851 (1940) (stating that “[a] suit for malicious

prosecution may lie, not only for the commencement of the original proceeding, but

for its continuance as well” (citations omitted)); Arizona, Smith v. Lucia, 173 Ariz.

290, 294, 295, 842 P.2d 1303, 1307, 1308 (Ct. App. 1992) (defining the tort of malicious

prosecution without making any reference to the continuation rule, noting that

“comment c to Restatement [Second of Torts] section 674 recognizes that an attorney

who has properly commenced a civil action may be liable for continuing it without

probable cause” and stating that “that rule is not applicable here” for the reasons

stated in the court’s opinion); Arkansas, Harold McLaughlin Reliable Truck Brokers,

Inc. v. Cox, 324 Ark. 361, 368, 922 S.W.2d 327, 331 (1996) (stating that “the essential

elements of malicious prosecution are: ‘(1) [a] proceeding instituted or continued by

the defendant against the plaintiff[;] (2) [t]ermination of the proceeding in favor of

the plaintiff[;] (3) [a]bsence of probable cause for the proceedings[;] (4) [m]alice on the

part of the defendant[;] (5) [d]amages’ ” (alterations in original) (quoting Farm Serv.

Coop. v. Goshen Farms, 267 Ark. 324, 331-32, 590 S.W.2d 861, 865 (1979))); Colorado,

Slee v. Simpson, 91 Colo. 461, 465, 15 P.2d 1084, 1085 (1932) (stating that “one of the

essential elements of a malicious prosecution is the commencement or continuance of

an original criminal or civil judicial proceeding” (citations omitted)); Idaho, Badell v.

Beeks, 115 Idaho 101, 102-04, 765 P.2d 126, 127-29 (1988) (defining the tort of

-27-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

malicious prosecution without making any reference to the continuation rule, noting

that “the Restatement [Second of Torts] speaks in terms of initiating or continuing

the proceeding” and “affirm[ing] the trial court’s ruling that [the defendant] possessed

probable cause, as a matter of law, to initiate and carry forward the malpractice

action against” the plaintiff (citation omitted)); Iowa, Wilson v. Hayes, 464 N.W.2d

250, 259-61, 264 (Iowa 1990) (defining the tort of malicious prosecution without

making any reference to the continuation rule, and stating that, “[t]o subject a person

to liability for wrongful civil proceedings, the proceedings must have been initiated

or continued primarily for a purpose other than that of securing the proper

adjudication of the claim on which they are based” (quoting Restatement (Second) of

Torts § 676); that “under the Restatement rule as expressed in comment d [to section

674], an attorney would only be liable if the attorney knowingly initiated or continued

a suit for a clearly improper purpose”; and that “[e]ven though a lawsuit is

commenced with probable cause, if the suit is prosecuted after it later appears there

is in fact no probable cause, liability may arise” (citation omitted)); Kansas, Nelson v.

Miller, 227 Kan. 271, 276, 607 P.2d 438, 443 (1980) (stating that “[t]o maintain an

action for malicious prosecution of a civil action the plaintiff must prove,” among

other things, “[t]hat the defendant initiated, continued, or procured civil

[proceedings] against the plaintiff,” with it being “sufficient if it is shown that the

defendant continued or procured the filing of the action” on the grounds that “[a]

person may also be held liable for the wrongful continuance of the original

-28-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

proceeding” (citations omitted)); Mississippi, Benjamin v. Hooper Elec. Supply Co.,

568 So. 2d 1182, 1188, 1189 n.6 (Miss. 1990) (stating that the tort of malicious

prosecution requires proof, among other things, of the “institution [or continuation]

of a criminal proceeding” since, “[w]ithout doubt, it is as much a wrong against the

victim and as socially or morally unjustifiable to take an active part in a prosecution

after knowledge that there is no factual foundation for it, as to instigate such

proceedings in the first place” (first alteration in original) (citations omitted)); New

York, Broughton v. State, 37 N.Y.2d 451, 457, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87,

94 (stating that “[t]he elements of the tort of malicious prosecution” include “the

commencement or continuation of a criminal proceeding by the defendant against the

plaintiff” (citation omitted)), cert. denied, 423 U.S. 929, 46 L. Ed. 2d 257 (1975); Ohio,

Siegel v. O.M. Scott & Sons Co., 73 Ohio App. 347, 351, 56 N.E.2d 345, 346-47 (1943)

(stating that “[t]he general rule is that to maintain an action for malicious

prosecution,” the plaintiff must show, among other things, “[t]he institution or

continuation of original judicial proceedings, either civil or criminal,” with “the

continuation of an original judicial proceeding . . . after acquiring means of

ascertaining that the charge is not well founded” being sufficient to support a finding

of liability (citations omitted)); Oregon, Wroten v. Lenske, 114 Or. App. 305, 308-09,

835 P.2d 931, 933-34 (defining the tort of malicious prosecution without making any

reference to the continuation rule and holding that the trial court had erred by

directing a verdict in favor of the defendant on the grounds that “there is evidence

-29-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

that continuation of the action was without probable cause” given that, after

“plaintiff’s counsel wrote to defendant and informed him that plaintiff’s letter had not

been published, a question was raised whether a reasonable person would have

investigated to verify the accuracy of that statement” (footnote omitted) and that

“[t]here is an issue of fact regarding whether defendant should have investigated

before continuing with the action” (citing Lampos v. Bazar, Inc., 270 Or. 256, 268, 527

P.2d 376, 381-82 (1974) (en banc), and Restatement (Second) of Torts § 674 cmt. c

(1977))), rev. denied, 314 Or. 574, 840 P.2d 1296 (1992); Pennsylvania, Wenger v.

Phillips, 195 Pa. 214, 219, 45 A. 927, 927 (Pa. 1900) (stating that the fact “[t]hat the

binding over was after the prosecution was barred by the statute of limitations did

not make the defendant liable unless it appeared that he had persisted in the

prosecution after he knew it was barred”); and Washington, Banks v. Nordstrom, Inc.,

57 Wash. App. 251, 255, 787 P.2d 953, 956 (stating that “to maintain an action for

malicious prosecution, the plaintiff must establish,” among other things, “ ‘that the

prosecution claimed to have been malicious was instituted or continued by the

defendant’ ” (quoting Peasley v. Puget Sound Tug & Barge Co. 13 Wash. 2d 485, 497,

125 P.2d 681, 687 (1942))), rev. denied, 115 Wash. 2d 1008, 797 P.2d 511 (1990). In

addition to the decisions from the thirteen states referenced in Zamos, the

continuation rule also appears to have been recognized in Alaska, Greywolf v. Carroll,

151 P.3d 1234, 1241 (Alaska 2007) (stating that “[t]he following elements are required

to maintain a cause of action for the tort of malicious prosecution” and include, but

-30-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

are not limited to, “ ‘a criminal proceeding instituted or continued by the defendant

against the plaintiff’ ” (citations omitted)); Florida, Fischer v. Debrincat, 169 So. 3d

1204, 1206 (Fla. Dist. Ct. App. 2015) (stating that “[t]o prevail in a malicious

prosecution action, a plaintiff must establish,” among other things, that “ ‘an original

criminal or civil judicial proceeding against the present plaintiff was commenced or

continued’ ” (quoting Alamo Rent–A–Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla.

1994)));9 Georgia, Horne v. J.H. Harvey Co., 274 Ga. App. 444, 446, 448, 617 S.E.2d

648, 650, 652 (2005) (defining the tort of malicious prosecution without making any

reference to the continuation rule, stating that “even if a defendant has probable

cause to initiate a criminal proceeding, if afterward, the defendant ‘acquired

knowledge, or the reasonable means of knowledge, that the charge was not well

founded, his continuation of the prosecution is evidence of the want of probable cause,

requiring that the question be submitted to the jury’ ” (quoting Fuller v. Jennings,

213 Ga. App. 773, 776-77, 445 S.E.2d 796, 799, cert. denied, Ga. LEXIS 1114 (Ga. Oct.

17, 1994)), and holding that while the defendant “could have formed a reasonable

belief that probable cause existed to initiate the prosecution . . . an issue arises as to

whether [the defendant] could reasonably believe that probable cause existed to

pursue the prosecution”); Hawaii, Arquette v. State, 128 Haw. 423, 433, 290 P.3d 493,

503 (2012) (holding that “the tort of the continuation of a malicious prosecution is not

9 The Supreme Court of Florida has “accepted jurisdiction” over Debrincat, but has
not yet decided it. 182 So. 3d 631 (2015).

-31-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

an unwarranted enlargement of the current doctrine but, rather, logically stems from

the policies underlying the tort”); Illinois, Grundhoefer v. Sorin, 2014 IL App (1st)

131276, ¶ 11, 20 N.E.3d 775, 780 (2014) (stating that “[t]he elements of a cause of

action for malicious prosecution” include “the commencement or continuance by the

defendant of an original judicial proceeding against the plaintiff” (citing Miller v.

Rosenberg, 196 Ill. 2d 50, 58, 749 N.E.2d 946, 952 (2001))); Maine, Trask v. Devlin,

2002 ME 10, ¶ 11, 788 A.2d 179, 182 (2002) (stating that “[t]o prevail in a malicious

prosecution action, a plaintiff must prove, by a preponderance of the evidence, that,”

among other things, “[t]he defendant initiated, procured or continued a criminal

action without probable cause” (citations omitted)); Maryland, Safeway Stores, Inc. v.

Barrack, 210 Md. 168, 173, 122 A.2d 457, 460 (1956) (stating that “[t]he necessary

elements of a case for malicious prosecution of a criminal charge are well established”

and include, among other things, that there was “a criminal proceeding instituted or

continued by the defendant against the plaintiff” (citations omitted)), abrogated on

other grounds by Montgomery Ward v. Wilson, 339 Md. 701, 732-36, 664 A.2d 916,

931-33 (1995); Michigan, Fort Wayne Mortg. Co. v. Carletos, 95 Mich. App. 752, 757,

291 N.W.2d 193, 195 (1980) (stating that “[t]he elements of malicious prosecution

are,” among other things, “ ‘a criminal proceeding instituted or continued by the

defendant against the plaintiff’ ” (quoting Wilson v. Yono, 65 Mich. App. 441, 443, 237

N.W.2d 494, 496 (1975))); Montana, Plouffe v. Mont. Dep’t of Pub. Health & Human

Servs., 2002 MT 64, ¶ 16, 309 Mont. 184, 190, 45 P.3d 10, 14 (2002) (stating that, “[i]n

-32-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

a civil action for malicious prosecution, the plaintiff’s burden at trial is to introduce

proof sufficient to allow reasonable jurors to find each of the six following elements,”

including that “a judicial proceeding was commenced and prosecuted against the

plaintiff” and that “the defendant was responsible for instigating, prosecuting or

continuing such proceeding” (citations omitted)); Nebraska, McKinney v. Okoye, 287

Neb. 261, 271-72, 842 N.W.2d 581, 591 (2014) (stating that “[i]n a malicious

prosecution case, the conjunctive elements for the plaintiff to establish” include,

among other things, “the commencement or prosecution of the proceeding against the

plaintiff” (citation omitted)); Nevada, LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d

877, 879-80 (2002) (stating that “[a] malicious prosecution claim requires that the

defendant initiated, procured the institution of, or actively participated in the

continuation of a criminal proceeding against the plaintiff” (citations omitted)); New

Jersey, LoBiondo v. Schwartz, 199 N.J. 62, 89, 90, 970 A.2d 1007, 1022 (2009) (stating

that “[m]alicious prosecution provides a remedy for harm caused by the institution or

continuation of a criminal action that is baseless” before stating the elements of the

tort without mentioning the continuation rule (citation omitted));10 North Dakota,

10 In its earlier decision in Lind v. Schmid, the New Jersey Supreme Court defined
the tort of malicious prosecution without making any mention of the continuation rule. 67
N.J. 255, 262, 337 A.2d 365, 368 (1975). Aside from the fact that Lind preceded LoBiondo,
nothing in Lind expressly rejects the validity of the continuation rule and some of the Court’s
language may tend to show its validity. Lind, 67 N.J. at 263, 337 A.2d at 368 (stating that
“[t]he fallacy of this rationale is that it fails to recognize that the concept of probable cause
in malicious prosecution is not fixed from one frame of reference”). As a result, it appears to
me that New Jersey does, in fact, accept the validity of the continuation rule.

-33-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

Richmond v. Haney, 480 N.W.2d 751, 755 (N.D. 1992) (stating that “[i]n order to

maintain an action for malicious prosecution one must establish,” among other

things, that “ ‘[a] criminal proceeding [was] instituted or continued by the defendant

against the plaintiff’ ” (quoting W. Page Keeton et al., Prosser and Keeton on the Law

of Torts § 119, at 871 (5th ed. 1984))); Oklahoma, Empire Oil & Ref. Co. v. Williams,

1938 OK 654, ¶ 5, 184 Okla. 172, 173, 86 P.2d 291, 292 (1938) (stating that “[t]he

essential elements in a cause of action for malicious prosecution” include, but are not

limited to, “[t]he commencement or continuance of an original criminal or civil

proceeding” (citing Sawyer v. Shick, 1911 OK 475, ¶ 4, 30 Okla. 353, 354, 120 P. 581,

582 (1911)));11 South Carolina, Eaves v. Broad River Elec. Coop., 277 S.C. 475, 477,

289 S.E.2d 414, 415 (1982) (stating that “[t]o maintain an action for malicious

prosecution, a plaintiff must establish,” among other things, “the institution or

continuation of original judicial proceedings . . . by or at the instance of the defendant”

11 In two decisions, the Oklahoma Supreme Court omitted any reference to the
continuation rule in stating the elements of the tort of malicious prosecution. Greenberg v.
Wolfberg, 1994 OK 147, ¶¶ 13-15, 890 P.2d 895, 901-92 (1994); Imo Oil & Gas Co. v. Knox,
1931 OK 440, ¶ 9, 154 Okla. 100, 102, 6 P.2d 1062, 1064 (1931). I do not believe that a failure
to expressly incorporate the continuation rule into the definition of the tort of malicious
prosecution in those cases can be understood as a refusal to recognize the existence of the
continuation rule. Greenberg, 1994 OK 147, ¶ 14 n.22, 890 P.2d at 902 n.22, expressly relies
upon Sawyer v. Shick, in which the continuation rule is expressly recognized, 1911 OK 475,
¶ 4, 30 Okla. 353, 354, 120 P. 581, 582 (1911). Similarly, the omission of any reference to the
continuation rule in Imo Oil, 1931 OK 440, ¶ 9, 154 Okla. at 102, 6 P.2d at 1064, appears to
be an anomaly given that one of the two cases cited in support of the definition of malicious
prosecution utilized in that decision incorporates the continuation rule, Sawyer, 1911 OK
475, ¶ 4, 30 Okla. at 354, 120 P. at 582, and the other case does not define the elements of
the tort of malicious prosecution at all, Robberson v. Gibson, 1917 OK 131, 62 Okla. 306, 162
P. 1120 (1917).

-34-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

(citation omitted)); Tennessee, Pera v. Kroger Co., 674 S.W.2d 715, 722 (Tenn. 1984)

(stating that “[i]t is well settled in the law of torts that even though one has probable

cause to initiate criminal charges, there can be liability for the malicious continuation

of a criminal proceeding”);12 Texas, Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207

(Tex. 1996) (stating that “[t]o prevail in a suit alleging malicious prosecution of a civil

claim, the plaintiff must establish,” among other things, “the institution or

continuation of civil proceedings against the plaintiff” (citation omitted));13 Utah,

Cline v. State, 2005 UT App 498, ¶ 30, 142 P.3d 127, 137 (2005) (stating that the first

element of a malicious prosecution claim “requires a plaintiff to establish that there

is ‘[a] criminal proceeding instituted or continued by the defendant against the

plaintiff’ ” (alteration in original) (quoting Amica Mut. Ins. Co. v. Schettler, 768 P.2d

12 To be sure, there is no reference to the continuation rule in the definition of the tort
of malicious prosecution set out in Roberts v. Federal Express Corp., 842 S.W.2d 246, 247-48
(Tenn. 1992). However, the fact that Roberts does not question Pera and the fact that the
Tennessee Court of Appeals has reiterated the validity of the continuation rule in reliance
upon Pera within the past five years, Bovat v. Nissan N. Am., No. M2013-00592-COA-R3-CV,
2013 WL 6021458, at *3 (Tenn. Ct. App. Nov. 8, 2013) (stating that, despite the absence of
any reference to the continuation rule in the definition of malicious prosecution set out in
Roberts, 842 S.W.2d at 248, and Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992), and
“even though one has probable cause to initiate criminal charges, there can be liability for
the malicious continuation of a criminal proceeding” (quoting Pera, 674 S.W.2d at 722)), I
believe that Tennessee recognizes the viability of the continuation rule.

13 In Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997), the tort of
malicious prosecution was defined without reference to the continuation rule. However, since
Richey did not overrule Texas Beef Cattle and focused upon an issue other than the viability
of the continuation rule, I do not believe that Richey can properly be understood as holding
that Texas has rejected the validity of the continuation rule.

-35-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

950, 959 (Utah Ct. App. 1989)), cert. denied, 133 P.3d 437 (Utah 2006);14 Wisconsin,

Elmer v. Chicago & Nw. Ry. Co., 257 Wis. 228, 231, 43 N.W.2d 244, 246 (1950) (stating

that “[t]he six essential elements in an action for malicious prosecution” include, but

are not limited to, “a prior institution or continuation of some regular judicial

proceedings against the plaintiff” (citations omitted)); and Wyoming, Toltec

Watershed Improvement Dist. v. Johnston, 717 P.2d 808, 811 (Wyo. 1986) (stating

that “the following elements [are] necessary to sustain a cause of action for malicious

prosecution,” including “ ‘[t]he institution or continuation of original judicial

proceedings, either criminal or civil’ ” (quoting Consumers Filling Station Co. v.

Durante, 79 Wyo. 237, 248, 333 P.2d 691, 694 (1958))). Admittedly, a number of states

have defined the tort of malicious prosecution without making reference to the

continuation doctrine. See Bhatia v. Debek, 287 Conn. 397, 404, 948 A.2d 1009, 1017

(2008);15 Crosson v. Berry, 829 N.E.2d 184, 189 (Ind. Ct. App. 2005); Williamson v.

Gueuntzel, 584 N.W.2d 20, 23 (Minn. Ct. App. 1998); DeVaney v. Thriftway Mktg.

Corp., 1998-NMSC-001, ¶ 17, 124 N.M. 512, 518, 953 P.2d 277, 283 (1997), overruled

14 The Utah Supreme Court made no mention of the continuation rule in reciting the
elements of the tort of malicious prosecution in Neff v. Neff, 2011 UT 6, ¶ 52, 247 P.3d 380,
394 (2011), but did not overrule either Cline or Schettler.
15 The Connecticut Court of Appeals did hold in Diamond 67, LLC v. Oatis, 167 Conn.

App. 659, 681, 144 A.3d 1055, 1069 (2016), that the related tort of vexatious litigation
permitted a finding of liability predicated on a defendant’s “initiation, continuation, and/or
procurement” of a prior civil action, while suggesting that the continuation rule did not apply
in malicious prosecution cases, id. at 683, 144 A.3d at 1070-71, which, in Connecticut, are
limited to claims for relief based upon the initiation of baseless criminal charges, see Bhatia,
287 Conn. at 404-05, 948 A.2d at 1017.

-36-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

in part by Durham v. Guest, 2009-NMSC-007, ¶ 29, 145 N.M. 694, 701, 204 P.3d 19,

26 (2009);16 Henshaw v. Doherty, 881 A.2d 909, 915 (R.I. 2005); Czechorowski v. State,

2005 VT 40, ¶ 30, 178 Vt. 524, 533, 872 A.2d 883, 895 (2005); Hudson v. Lanier, 255

Va. 330, 333, 497 S.E.2d 471, 473 (1998); Norfolk S. Ry. Co. v. Higginbotham, 228 W.

Va. 522, 526-27, 721 S.E.2d 541, 545-46 (2011). However, I am not convinced that

the failure of these decisions to mention the continuation rule in the course of defining

the tort of malicious prosecution necessarily means that the courts in question would

refuse to recognize the continuation rule in the event that the issue of its viability

was squarely presented to them, as is evidenced by the fact that the continuation rule

16 The New Mexico Supreme Court has consolidated what are, in most jurisdictions,
the separate torts of malicious prosecution and abuse of process into the tort of malicious
abuse of process. Durham, 2009-NMSC-007, ¶ 18, 145 N.M. at 698, 204 P.3d at 23. Although
the New Mexico Supreme Court initially held in DeVaney that the elements of the tort of
malicious abuse of process of process are “the initiation of judicial proceedings against the
plaintiff by the defendant,” “an act by the defendant in the use of process other than such as
would be proper in the regular prosecution of the claim,” “a primary motive by the defendant
in misusing the process to accomplish an illegitimate end,” and “ damages,” 1998-NMSC-001,
¶ 17, 124 N.M. at 518, 953 P.2d at 283, that court subsequently overruled its prior decision
in DeVaney and modified the definition of the first element of the consolidated tort so as to
delete the requirement that “the defendant . . . have initiated a judicial proceeding against
the plaintiff,” Durham, 2009-NMSC-007, ¶ 29, 145 N.M. at 701, 204 P.3d at 26, and to replace
it with “the use of process in a judicial proceeding that would be improper in the regular
prosecution or defense of a claim or charge,” with this improper use of process consisting of
either the “filing [of] a complaint without probable cause,” or “ ‘an irregularity or impropriety
suggesting extortion, delay, or harassment’ or other conduct formerly actionable under the
tort of abuse of process,” id. at ¶ 29, 145 N.M. at 701, 204 P.3d at 26 (quoting Fleetwood
Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 12, 142 N.M. 150, 154, 164 P.3d 31, 35
(2007)). Although one could argue that this restatement of the elements of the tort of
malicious abuse of process suffices to recognize something akin to the continuation rule for
malicious abuse of process claims, the validity of that argument has not, to my knowledge,
been tested.

-37-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

was recognized in Smith, 173 Ariz. at 294-95, 842 P.2d at 1308; Badell, 115 Idaho at

102-04, 765 P.2d at 127-29; Wilson, 464 N.W.2d at 259-64; and Wroten, 114 Or. App.

at 308-09, 835 P.2d at 933-34, despite the fact that the tort of malicious prosecution

was defined in each of those cases without making any reference to the continuation

rule and the fact that two other courts have refused to decide whether to accept or

reject the continuation rule given the absence of any need to do so in order to resolve

the case under consideration, Maynard v. 84 Lumber Co., 657 N.E.2d 406, 408 (Ind.

Ct. App. 1995); Williamson, 584 N.W.2d at 24-25.17 As far as I have been able to

determine, only Delaware appears to have explicitly rejected the “continuation”

theory. See Blue Hen Mech., Inc. v. Christian Bros. Risk Pooling Tr., 117 A.3d 549,

557 (Del. 2015) (rejecting a request for recognition of a claim for malicious prosecution

“based on the wrongful continuation of proceedings after probable cause no longer

exists” because the Court could see “no reason to extend the tort of malicious

prosecution beyond the limited scope given to it by long-standing Delaware case law,

and many reasons” for declining to do so (footnote omitted)). At an absolute

minimum, these decisions make it clear to me that the overwhelming majority of

American jurisdictions recognize the viability of the continuation rule in malicious

prosecution cases.

17 I do not wish to be understood as making any claim that the discussion of the
decisions made by other jurisdictions with respect to the validity of the continuation rule set
out in the text of this separate opinion is complete. I merely offer it in support of my general
belief that the validity of the continuation rule is well recognized across the United States.

-38-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

In spite of the well-established nature of the “continuation” theory both

nationally and in North Carolina, the Court refrains from commenting upon its

viability on the grounds that, since “[p]laintiff’s complaint is not that the original

probable cause dissipated” and focuses, instead, upon a claim that “probable cause

never existed,” “[w]e need not address [the viability of] that theory in this jurisdiction.

I am not, given my belief that plaintiff has, in fact, attempted to assert a valid

“continuation” claim; the breadth of the authorities that recognize the validity of the

“continuation” theory; the fact that neither party has openly questioned the validity

of that theory in their briefs or during oral argument; and the fact that the logic

underlying the “continuation” theory strikes me as fully consistent with this Court’s

malicious prosecution jurisprudence, comfortable with such a result, which seems to

cast the validity of the “continuation” theory in North Carolina into unnecessary

doubt. As a result, in light of my understanding of the allegations set forth in

plaintiff’s complaint, I believe that our analysis of the “lack of probable cause”

allegations contained in plaintiff’s complaint must necessarily focus upon both the

allegations concerning the time at which plaintiff was originally charged with the

murder of his estranged wife by the Davie County grand jury and the time at which

the decision was made to continue proceeding against plaintiff on the charge of

murdering his wife following the additional blood smear “tests” conducted by

defendants.

According to well-established North Carolina law,

-39-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

[a] pleading complies with [N.C. R. Civ. P. Rule 8(a)(1)] if
it gives sufficient notice of the events or transactions which
produced the claim to enable the adverse party to
understand the nature of it and the basis for it, to file a
responsive pleading, and—by using the rules provided for
obtaining pretrial discovery—to get any additional
information he may need to prepare for trial.

Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970). Although notice

pleading pursuant to Rule 8(a)(1) of the North Carolina Rules of Civil Procedure does

not require “detailed fact-pleading,” id. at 104, 176 S.E.2d at 167, it does “manifest

the legislative intent to require a more specific statement, or notice in more detail,

than Federal Rule 8(a)(2) requires,” id. at 100, 176 S.E.2d at 164, so that “no amount

of liberalization should seduce the pleader into failing to state enough to give the

substantive elements of his claim or of his defense,” id. at 105, 176 S.E.2d at 167

(quoting William C. Myers & James E. Humphreys, Jr., Pleadings and Motions, 5

Wake Forest Intramural L. Rev. 70, 73 (1969)). As a result, our precedent suggests

that at least some allegations supplying a factual basis for a malicious prosecution

claim are necessary to preclude dismissal for failure to state a claim for which relief

can be granted. See Stanback v. Stanback, 297 N.C. 181, 204, 254 S.E.2d 611, 626

(1979) (stating that “a complaint must nonetheless state enough to give the

substantive elements of at least some legally recognized claim” to preclude dismissal

for failure to state a claim for which relief can be granted), disapproved on other

grounds by Dickens v. Puryear, 302 N.C. 437, 447-48, 276 S.E.2d 325, 331-32 (1981).

In view of the fact that “the well-pleaded material allegations of the complaint are

-40-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

taken as admitted” while the “conclusions of law or unwarranted deductions of

fact[ ] are not admitted,” Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E.2d 843, 851 (1979)

(quoting Sutton, 277 N.C. at 98, 176 S.E.2d at 163), “it is our task to determine

whether” plaintiff’s factual “allegations as a matter of law demonstrate the adequacy,

or lack thereof, of” plaintiff’s claim” id. at 427, 251 S.E.2d at 851. Thus,

[d]ismissal under Rule 12(b)(6) is proper when one of the
following three conditions is satisfied: (1) the complaint on
its face reveals that no law supports the plaintiff’s claim;
(2) the complaint on its face reveals the absence of facts
sufficient to make a good claim; or (3) the complaint
discloses some fact that necessarily defeats the plaintiff’s
claim.

Wood v. Guilford County, 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates

v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)). When considered in light

of the applicable legal standard, I believe plaintiff’s complaint fails to allege a valid

claim for malicious prosecution against defendants arising from either the initiation

of criminal charges against plaintiff or the decision to continue prosecuting him

following the performance of the unscientific blood smear “tests.”

“It is certainly the general rule, applicable to [malicious prosecution cases],

that when a committing magistrate has bound the party over or a grand jury has

found a true bill against him, such action prima facie makes out a case of probable

cause, and the jury should be directed to consider the evidence as affected by this

principle.” Stanford v. Grocery Co., 143 N.C. 419, 426, 55 S.E. 815, 817 (1906)

(citations omitted). In view of plaintiff’s acknowledgement that the Davie County

-41-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

grand jury returned a bill of indictment charging him with murder, he has, in effect,

pleaded a fact that serves to defeat his malicious prosecution claim in the absence of

an allegation providing some basis for overcoming the prima facie case of probable

cause that he has set out in his complaint. Although plaintiff asserts that he acted

in self-defense at the time that he killed his wife and that defendants “fail[ed] to

properly investigate the circumstances of [Mrs.] Turner’s death” and plaintiff’s “claim

of self-defense,” these conclusory allegations provide no support for the legal

conclusion stated in his complaint to the effect that “there was a lack of probable

cause to sustain an indictment on first-degree murder and but for the malicious,

intentional acts of [defendants, plaintiff] would not have been indicted and tried for

first-degree murder.” See Carson, 231 N.C. at 633, 58 S.E.2d at 612 (stating that,

“when the facts are admitted or established, the question of probable cause is one of

law for the court” (citing Rawls v. Bennett, 221 N.C. 127, 130, 19 S.E.2d 126, 128

(1942); Morgan v. Stewart, 144 N.C. 424, 425, 57 S.E. 149, 149 (1907)). For example,

plaintiff failed to allege that defendants unreasonably declined to believe his

protestations of innocence, that he did nothing to provoke the attack that he claimed

that his wife had made upon him, or that defendants had no basis whatsoever for

failing to accept plaintiff’s assertion that he acted in perfect self-defense. As a result,

given that plaintiff has failed to allege any factual support for his assertion that,

despite the grand jury’s decision to charge him with murdering his wife, there was no

probable cause to believe that he was guilty of murder, plaintiff’s complaint fails to

-42-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

give defendants sufficient notice of the events or transactions which produced the

claim so as to enable defendants to understand the nature of plaintiff’s claim and the

basis for it, and consequently, plaintiff’s complaint must be deemed fatally defective.

Similarly, I do not believe that plaintiff has stated a malicious prosecution

claim against defendants arising from the unlawful continuation of the underlying

murder prosecution without probable cause stemming from the actions taken in the

aftermath of the 15 January 2008 meeting. In essence, plaintiff alleges that,

following this meeting, defendants “wantonly and maliciously conducted unscientific

tests to ‘shore up’ the new theory that [plaintiff’s] wounds were self-inflicted and

therefore, not a result of self-defense.” Although the allegations set forth in plaintiff’s

complaint clearly describe a highly unethical attempt to manufacture evidence in

support of the State’s attempt to convict plaintiff of first-degree murder, the

complaint provides no indication whatsoever that the machinations in which

defendants allegedly engaged had any effect beyond bolstering the State’s existing

case against plaintiff. Put another way, the existence of additional, albeit

manufactured, evidence, while certainly enhancing the likelihood that plaintiff would

be wrongly convicted of murdering his wife, could not have done anything to detract

from the existing evidence that had resulted in the Davie County grand jury’s decision

to charge plaintiff with murder.18 Thus, I do not believe that plaintiff has stated a

18Although plaintiff has argued that he had alleged that defendants had “a collateral
purpose in initiating or continuing the proceedings” against him and that this fact provides

-43-
 TURNER V. THOMAS

ERVIN, J., concurring in part and concurring in the result in part

claim for relief sounding in malicious prosecution arising from the additional

“unscientific” blood smear testing that defendants performed in early 2008.

In summary, while I am unable to agree with the manner in which the Court

has analyzed the sufficiency of plaintiff’s complaint to allege a malicious prosecution

claim against defendants, I do agree that plaintiff failed to state a malicious

prosecution claim against them in his complaint. Despite the presence of an

allegation that makes out a prima facie showing that probable cause was not lacking,

plaintiff has completely failed to provide any factual support for his conclusory

allegation that plaintiff’s prosecution was initiated and continued in the absence of

the requisite probable cause. As a result, I concur in the Court’s opinion with respect

to the sufficiency of plaintiff’s complaint to state a claim for intentional infliction of

emotional distress and concur in the result that the Court has reached with respect

to the sufficiency of plaintiff’s complaint to state a malicious prosecution claim

against defendants.

“prima facie evidence of a lack of probable cause,” citing Taylor v. Hodge, 229 N.C. 558, 50
S.E.2d 307 (1948) and Wilson v. Pearce, 105 N.C. App. 107, 412 S.E.2d 148, disc. rev. denied,
331 N.C. 291, 417 S.E.2d 72 (1992), that logic does not suffice to resuscitate plaintiff’s
malicious prosecution claim in this case given that defendants’ desire “to secure a conviction
[in] a high publicity murder case regardless of guilt to further [defendants’] careers” and “to
assist the District Attorney in winning a very public case for political purposes” does not seem
to me to rise to the level of personal malice and effort to obtain personal gain present in the
cases upon which plaintiff relies.

-44-
 TURNER V. THOMAS

HUDSON, J., concurring in part, and dissenting in part

Justice HUDSON concurring in part, and dissenting in part.

I agree with the majority’s disposition of the claims for intentional infliction of

emotional distress, which affirms the Court of Appeals’ reversal of the dismissal of

these claims as to defendants Thomas and Deaver. I disagree with the majority’s

analytical framework for malicious prosecution claims; therefore, I agree with Justice

Ervin’s analysis in his concurring opinion, which recognizes that North Carolina has

long allowed malicious prosecution claims under a “continuation theory.” Even

under the majority’s theory of malicious prosecution, in my view, plaintiff has

sufficiently stated claims for malicious prosecution to survive dismissal under Civil

Procedure Rule 12(b)(6) and proceed with his claim against Thomas. I also conclude

that under the law previous to this opinion, as well as under the framework explained

by Justice Ervin, the complaint sufficiently states a claim for malicious prosecution

against Deaver as well. Therefore, as to the malicious prosecution claims against

Thomas and Deaver, I respectfully dissent.

As the majority states, a claim for malicious prosecution requires a showing

that “the defendant (1) initiated or participated in the earlier proceeding, (2) did so

maliciously, (3) without probable cause, and (4) the earlier proceeding ended in favor

of the plaintiff.” (Emphasis added.) Furthermore, I agree with the majority’s

discussion of the applicable principles regarding a motion to dismiss under Rule

12(b)(6). The relevant inquiry is “whether, as a matter of law, the allegations of the

complaint, treated as true, are sufficient to state a claim upon which relief may be

-45-
 TURNER V. THOMAS

HUDSON, J., concurring in part, and dissenting in part

granted.” Newberne v. Dep’t of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618

S.E.2d 201, 203 (2005) (quoting Meyer v. Walls, 347 N.C. 97, 111, 489 S.E.2d 880, 888

(1997)).

As noted in the concurring opinion, North Carolina adopted notice pleading

many years ago. Civil Procedure Rule 8(a)(1) does not require “detailed fact-

pleading,” but rather requires only that a pleading give “sufficient notice of the events

or transactions which produced the claim to enable the adverse party to understand

the nature of it and the basis for it.” Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d

161, 167 (1970); see Pyco Supply Co. v. Am. Centennial Ins. Co., 321 N.C. 435, 442,

364 S.E.2d 380, 384 (1988) (“Through [Rule 8(a)(1) of the North Carolina Rules of

Civil Procedure], the General Assembly of North Carolina adopted the concept of

notice pleading.”) Although there is some precedent for requiring that allegations

supply a factual basis for extreme conduct in a claim of intentional infliction of

emotional distress, see Chidnese v. Chidnese, 210 N.C. App. 299, 317, 708 S.E.2d 725,

738 (2011) (“Plaintiff’s complaint and brief simply state that defendants’ previously

discussed behavior was extreme and outrageous, without providing any support or

case for this assertion. However, ‘this Court has set a high threshold for a finding

that conduct meets the standard’ of extreme and outrageous conduct.” (quoting

Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d 710, 715 (1999), rev’d on other

grounds, 352 N.C. 77, 530 S.E.2d 829 (2000)), a claim of malicious prosecution must

satisfy only the basic requirements of notice pleading. To the extent that the majority

-46-
 TURNER V. THOMAS

HUDSON, J., concurring in part, and dissenting in part

goes beyond treating the allegations as true and analyzing evidence of probable cause,

I conclude it has gone too far.

The majority also states that “plaintiff’s suit focuses on actions defendants took

after” the grand jury indicted him. I do not accept this characterization because a

number of specific allegations against Thomas address what he knew and did before

plaintiff was indicted. As to Deaver, specific allegations address his “participation”

in the continuing prosecution after plaintiff’s indictment.19

Turning to the complaint, the allegations that in my view adequately state a

claim for malicious prosecution include the following:

14. Acting in self-defense, Dr. Kirk Turner grabbed a
pocketknife from his right front pocket and made two
cuts in rapid succession to Jennifer Turner's neck area
which resulted in her death.

....

26. Prior to examining any evidence for bloodstains or
bloodstain patterns, SA Thomas was informed by
Special Agent D. J. Smith that Jennifer Turner had
apparently stabbed Dr. Kirk Turner with the spear and
in response Dr. Kirk Turner reached into his right
front pocket of his pants and retrieved a knife which
Dr. Kirk Turner used to cut Jennifer Turner causing
her death.

....

19 Although the majority correctly states that a claim for malicious prosecution may
be based on participation in a proceeding, it then (improperly, as noted in the concurring
opinion) limits that participation to pre-indictment activities. Defendant Deaver’s alleged
involvement in these events, which began after the indictment, nonetheless can constitute
malicious prosecution by participation, both under existing law and as discussed in the
concurring opinion.

-47-
 TURNER V. THOMAS

HUDSON, J., concurring in part, and dissenting in part

43. Upon information and belief, SA Thomas and SA
Deaver conducted these additional tests in an effort to
prove the new theory that Dr. Kirk Turner had
planned the murder of Jennifer Turner, to maintain
the appearance of probable cause where none existed
and to obtain a first-degree murder conviction of Dr.
Kirk Turner despite evidence to the contrary.

....

67. SA Thomas and SA Deaver, acting in their individual
capacities, participated in and caused the institution of
criminal proceedings against Dr. Kirk Turner for the
murder of his wife Jennifer Turner by, inter alia:

a. Failing to properly investigate the circumstances
of Jennifer Turner’s death;

b. Failing to properly investigate Dr. Kirk Turner’s
claim of self-defense;

c. Hiding and/or attempting to hide pertinent
information about evidence collected at the
scene;

d. Failing to adhere to the administrative practices
of SBI report writing;

e. Including false and misleading information in
investigative reports; and

f. Otherwise failing to remain fair, neutral and
truthful prior to and after the institution of
criminal proceedings against Dr. Kirk Turner.

68. In an effort to secure a first-degree murder indictment
and conviction, SA Thomas and SA Deaver
intentionally, maliciously, and without just cause,
failed to take the appropriate measures described
above.

-48-
 TURNER V. THOMAS

HUDSON, J., concurring in part, and dissenting in part

69. At all times relevant to the investigation and
prosecution of Dr. Kirk Turner, there was a lack of
probable cause to sustain an indictment on first-
degree murder and but for the malicious, intentional
acts of SA Thomas and SA Deaver, Dr. Kirk Turner
would not have been indicted and tried for first-degree
murder.

In my view, these allegations are sufficient to state claims for malicious

prosecution against Thomas and Deaver under existing North Carolina law. The

allegations set forth in the last two paragraphs, when taken together with the

complaint as a whole and particularly those in paragraph 67(a)-(e), allege a lack of

probable cause and knowledge of the same on the part of defendants, and also provide

“sufficient notice of the events or transactions which produced the claim.” Sutton,

277 N.C. at 104, 176 S.E.2d at 167.

The majority asserts that it “must consider the evidence that was available to

the investigators and presented to the grand jury in December 2007” and concludes,

“[b]ased on the facts known to the investigators at the time of the grand jury

proceedings, we are satisfied that a reasonable and prudent person would believe

there was probable cause.” (Emphases added.) The majority further states that the

grand jury properly found probable cause and that “nothing in the subsequent

investigation revealed facts that disproved that.” Again, the focus of our review

should be on the allegations in the complaint, taken as true. In considering whether

the complaint has adequately stated claims for malicious prosecution, I do not think

-49-
 TURNER V. THOMAS

HUDSON, J., concurring in part, and dissenting in part

we need to consider the evidence or subsequent investigation at all. Instead, we must

look at the allegations of the complaint and, taking them as true, determine if they

have stated the elements of the claims. I express no opinion concerning the

sufficiency of the evidence or the potential merits of plaintiff’s claims at trial. Rather,

looking solely at the allegations in the complaint, and taking them as true, I conclude

that plaintiff has sufficiently stated claims for malicious prosecution against Thomas

and Deaver. Accordingly, I would affirm the Court of Appeals’ holding reversing

dismissal under Rule 12(b)(6) of these claims, as well as the claims for intentional

infliction of emotional distress. I would allow plaintiff’s claims for malicious

prosecution to proceed as to Thomas and Deaver.

As such, I respectfully dissent as to these two claims but concur in the

majority’s decision regarding plaintiff’s claims for intentional infliction of emotional

distress.

Justice BEASLEY joins in this opinion.

-50-