Cashion v. Texas Gulf, Inc. , 79 N.C. App. 632 ( 1986 )

339 S.E.2d 797 (1986)

Frank CASHION and Ruffin Keyes
v.
TEXAS GULF, INC., and Dwayne Pergrem.

No. 852SC711.

Court of Appeals of North Carolina.

March 4, 1986.

Sumrell, Sugg & Carmicheal by Rudolph A. Ashton, III, New Bern, for plaintiffs-appellants.

McMullan & Knott by Lee E. Knott, Jr., Washington, for defendants-appellees.

JOHNSON, Judge.

The only issue we must decide is whether there was a genuine material issue of fact which would preclude the trial court's allowance of defendants' motion for summary judgment. After careful consideration of the record herein, we conclude that there is no genuine material issue of fact in the case sub judice.

It is well settled that a Rule 56 motion for summary judgment should be allowed only when there exists no triable genuine issue of material fact and the movant's forecast of the evidence demonstrates that it is entitled to a judgment as a matter of law. Feibus & Co. v. Godley Construction Co., 301 N.C. 294, 271 S.E.2d 385, rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1980). In pertinent part, G.S. 1A-1, Rule 56(c) provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Rule 56(c), N.C. Rules Civ.P. The moving party has the burden of establishing a lack of triable issues of fact but the nonmoving party may not rest upon mere allegations of his pleadings. Taylor v. Greensboro News Co., 57 N.C.App. 426, 291 S.E.2d 852, disc. rev. granted, 306 N.C. 751, 295 S.E.2d 486 (1982), appeal dismissed, 307 N.C. 459, 298 S.E.2d 385 (1983). Bearing these principles in mind we now turn to the propriety of the court's granting defendants' motion for summary judgment. There are four elements essential to establishing a claim of malicious prosecution: "[1] [D]efendant initiated the earlier proceeding, [2] that he did so maliciously and [3] without probable cause, and [4] that the earlier proceeding terminated in plaintiff's favor." Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). Plaintiffs' primary argument is that there are material facts in dispute as to whether defendants falsely and maliciously had warrants issued for plaintiffs' arrests. What the plaintiffs fail to realize is that "want of probable cause is an essential element of malicious prosecution." Priddy v. Cooks United Dept. Store, 17 N.C.App. 322, 324, 194 S.E.2d 58, 59 (1973). Probable cause is a reasonable suspicion in the mind of a prudent person in light of known facts and circumstances. State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981). Unless plaintiffs can establish that their convictions were obtained through fraud or other unfair means, their convictions establish the existence of probable cause. Priddy, 17 N.C.App. at 324, 194 S.E.2d at 59. The fact that this Court reversed their convictions for a fatal variance between the indictment and the proof the State presented at trial does not serve to show that the criminal proceedings were initiated without probable cause; nor does it defeat defendants' motion for summary judgment. The State has the responsibility for charging plaintiffs with a crime based on the facts supplied. We are satisfied that in the absence of any showing that the convictions were obtained through fraud or other unfair means defendants were entitled to summary judgment as a matter of law.

Affirmed.

WHICHARD, J., concurs.

PHILLIPS, J., concurs in the result.