in the Court of Appeals 17 May 2017.
by plaintiff from order entered 24 August 2016 by Judge Allen
Baddour in Nash County No. 16 CVS 412 Superior Court.
Ekstrand & Ekstrand LLP, by Robert C. Ekstrand, for
Spruill LLP, by J. Nicholas Ellis, for defendants-appellees
Medina, Denton, Whitley, and the City of Rocky Mount.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General David J. Adinolfi II, for defendant-appellee State of
appeal, we consider whether the plaintiff's complaint
stated valid claims for relief both under 42 U.S.C. §
1983 and North Carolina common law based on his allegations
that the defendants caused him to be arrested and indicted
without probable cause by concealing and fabricating
evidence. Plaintiff Phillip Braswell appeals from the trial
court's order granting the motions to dismiss of Brandon
Medina, John W. Denton, Michael A. Whitley and the City of
Rocky Mount (collectively the "Rocky Mount
Defendants") and the State of North Carolina pursuant to
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
For the following reasons, we affirm in part and reverse in
and Procedural Background
summarized - and, at times, quoted - the pertinent facts
below using Plaintiff's statements from his complaint,
which we treat as true in reviewing the trial court's
order granting a motion to dismiss under Rule 12(b)(6).
Feltman v. City of Wilson, 238 N.C.App. 246, 247,
767 S.E.2d 615, 617 (2014).
working at a Ford dealership for 19 years, Braswell left that
job to become a self-employed investor in 1997.
Braswell's uncle, William Greene, subsequently loaned
Plaintiff $10, 000 in 1998 for investment purposes. The loan
was memorialized by an agreement in which Braswell agreed to
repay the loan at an interest rate of 10%. Between 1998 and
2009, this loan was extended or "rolled over" each
year by agreement between Mr. Greene and Braswell. At no time
was Braswell a licensed investment advisor, and he did not
hold himself out to be one.
1998 and 2006, Mr. Greene made additional loans to
Braswell.Braswell's aunt, Ola Beth Greene, also
lent him money during this time period.
August or September of 2009, the Greenes requested repayment
of one of the loans, and Braswell responded that he "did
not have the money, but he was working on it." In
December of that year, Braswell explained to the Greenes that
he could not repay the loans because their money had been
"lost along with [Braswell's] own money in a
collapse of investment markets that finance experts called a
'global financial meltdown.'"
February 2010, the Greenes reported the loss of these funds -
which they claimed totaled $112, 500 - to Officer Medina of
the Rocky Mount Police Department. Officer Medina
subsequently secured a search warrant for Braswell's
home, which was executed on 9 February 2010. During the
search, Officer Medina seized computers; thumb drives; tax
returns for the years 2003 through 2008; financial statements
from RBC, Bank of America, First South, Fidelity Investments,
and MBNA; delinquency notices; and two blank Fidelity
records revealed that Braswell's account with Fidelity
Investments had contained over $100, 000 in early 2008, but
by the end of that year "the financial crisis had taken
its toll on [Braswell]'s investments and the account had
essentially no value." None of the records "seized
from [Braswell's] home tended to show that [he] had done
anything with the money he received from the Greenes other
than invest it in legitimate financial institutions."
Medina proceeded to arrest Braswell pursuant to an arrest
warrant he had obtained. After being read his
Miranda rights, Braswell gave the following
statement to Officer Medina:
I began investing in stocks to try to make a living in late
1998. I had mentioned to my uncle, Willie Greene, that I
could pay him higher interest than a CD so he started
investing some money with me too. I took this money and
invested [in] stocks along with my own. I did real well for a
while but then things started to change. I started losing
money. I began to borrow from real estate  my mom owned
with her permission to recoup my losses. . . . Eventually I
had lost my money along with my mom's and my uncle's
and aunt's. In May 2008, I had an accident [from] which I
was expecting a settlement. I haven't received the
settlement yet, but between that [and] work I was expecting
to make some or all of what I . . . owed my uncle and aunt.
They had been rolling over their investments with me and I
thought I would have several years to come up with the money.
In September 2009, Willie said that he wanted to cash in one
of his investments. I asked him to wait a while and I was
going to try to come up with money but didn't. My aunt
asked me on December 8, 2009 about their investments and I
told them that I had lost their money. I had taken my money
that I borrowed from my mom's property and some other
money she had to try to invest to rectify the situation. But
sadly it went from bad to worse when I had lost that too.
(Brackets and ellipses in original.)
addition to this statement, Braswell "provided [Officer]
Medina [with] records, documents and electronically stored
information proving that he invested his and the Greenes'
funds in legitimate financial institutions."
Nevertheless, Officer Medina instituted criminal proceedings
against Braswell, which ultimately resulted in a grand jury
indicting him on 5 April 2010 on the charge of obtaining
property by false pretenses in excess of $100, 000.
the indictment alleged that Braswell "unlawfully,
willfully and feloniously did knowingly and designedly with
the intent to cheat and defraud, obtain $112, 500.00 in U.S.
Currency from William Irvin Green [sic] and Ola Beth Green
[sic], by means of a false pretense which was calculated to
deceive and did deceive" - the false pretense being that
the "property was obtained by [Braswell] guaranteeing a
six percent return on all invested monies from William Irvin
Green [sic] and Ola Beth Green [sic], when in fact
[Braswell] did not invest the monies into legitimate
financial institutions." (Emphasis added.)
was held in pre-trial detention until his trial on 6 February
2012. He was convicted and sentenced to 58 to 79 months
imprisonment. On appeal, this Court vacated his conviction,
explaining as follows:
[T]he "false pretense" or "false
representation" which [Braswell] allegedly made to the
Greenes consisted of a statement that [Braswell] was
borrowing money from the Greenes for investment-related
purposes despite the fact that he did not actually intend to
invest the money that he received from them in any
"legitimate financial institution." A careful
review of the record developed at trial reveals the complete
absence of any support for this allegation.
State v. Braswell, 225 N.C.App. 734, 741, 738 S.E.2d
229, 234 (2013).
noted that the State did not present any records seized from
the search of Braswell's home showing that he had failed
to invest the Greenes' money in legitimate financial
institutions and observed that "the fact that
[Braswell]'s account with Fidelity Investments contained
$100, 000 in early 2008 suggests that he did, in fact, make
investments with such institutions." Id.
Moreover, we explained, "the State offered no direct or
circumstantial evidence tending to show that, instead of
investing the money he borrowed from the Greenes, [Braswell]
converted it to his own use." Id. at 742, 738
S.E.2d at 234.
March 2016, Braswell filed a civil lawsuit in Nash County
Superior Court from which the present appeal arises. In his
complaint, Braswell alleged, in pertinent part, that
[o]n 5 April 2010, Defendants Medina, Denton, and . . .
Whitley[ ] fabricated probable cause to mislead a Nash County
grand jury into returning a bill of indictment charging
[Braswell] with felony obtaining property by false pretenses.
At the time they caused the indictment to issue, Medina,
Denton, and Whitley knew they did not have probable cause to
believe [Braswell] committed that or any other crime.
alleged federal claims under 42 U.S.C. § 1983 against
Officers Medina, Denton, and Whitley (collectively the
"Officers") in their individual
capacities. Additionally, Braswell asserted state law
claims against the Rocky Mount Defendants for malicious
prosecution, obstruction of justice, negligence, intentional
infliction of emotional distress, and negligent infliction of
emotional distress. Finally, his complaint contained claims
against the City and the State of North Carolina for
violations of the North Carolina Constitution.
April 2016, the State filed a motion to dismiss pursuant to
Rules 12(b)(1) and (6). The Rocky Mount Defendants filed a
motion to dismiss on 15 April 2016 seeking dismissal of all
of Braswell's claims against them pursuant to Rule
12(b)(6). Following a hearing before the Honorable Allen
Baddour on 5 August 2016, the trial court issued an order on
24 August 2016 dismissing this entire action pursuant to Rule
12(b)(6). Braswell filed a timely notice of
initial matter, we conclude that Braswell has abandoned any
challenges to the trial court's dismissal of his claims
against the Rocky Mount Defendants for negligence,
intentional infliction of emotional distress, and negligent
infliction of emotional distress because he failed to address
the dismissal of these claims in his principal brief on
appeal. See N.C. R. App. P. 28(b)(6) ("Issues
not presented in a party's brief, or in support of which
no reason or argument is stated, will be taken as
we consider only whether the trial court erred in dismissing
Braswell's § 1983 claims; state law claims for
malicious prosecution and obstruction of justice; and claim
under the North Carolina Constitution.
The standard of review of an order granting a Rule 12(b)(6)
motion is whether the complaint states a claim for which
relief can be granted under some legal theory when the
complaint is liberally construed and all the allegations
included therein are taken as true. On appeal, we review the
pleadings de novo to determine their legal
sufficiency and ...