# Moore v. City of Creedmoor

> Court of Appeals of North Carolina · September 5, 1995 · 120 N.C. App. 27

URL: https://www.frixlaw.com/law-library/cases/9589672

## Case

- **Full name:** JAMES Y. MOORE, Trading and Doing Business as MOORE’S DINETTE, and GRACYE MOORE, Plaintiffs-Appellants v. CITY OF CREEDMOOR, RALPH D. SEAGROVES, Individually and as CHIEF OF POLICE of the CITY OF CREEDMOOR, and VANCE DOUGLAS HIGH, Individually and as a COMMISSIONER OF THE CITY OF CREEDMOOR, Defendants-Appellees
- **Court:** Court of Appeals of North Carolina
- **Decided:** September 5, 1995
- **Citations:** 120 N.C. App. 27; 460 S.E.2d 899; 1995 N.C. App. LEXIS 708
- **Precedential status:** Published
- **Opinion:** Concurring in part by Greene
- **Judges:** John, Arnold, Greene
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed in part, on other grounds by Moore v. City of Creedmoor, 345 N.C. 356 (1997).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9589672

## Opinion text

Judge Greene
concurring in part and dissenting in part.
I believe the trial court correctly entered summary judgment for all defendants on each of the claims asserted by the plaintiffs. I therefore disagree with the majority that the trial court erred in granting summary judgment for defendants Seagroves and the City on the malicious prosecution claim.
The majority concludes that the nuisance abatement action filed by the district attorney on 1 August 1990 was in fact “initiated” by the City and Seagroves. I disagree. The civil abatement action, which is the basis of the present malicious prosecution action, was filed pursuant to N.C. Gen. Stat. § 19-2.1 and the plaintiff in that action was “The State of North Carolina on relation of David R. Waters, District Attorney.” Although the abatement action is required to be filed in the name of the State, “the Attorney General, district attorney, or any private citizen of the county,” N.C.G.S. § 19-2.1 (1983), can “become rela-tors and prosecute the-cause in the name of the State.” Dare County v. Mater, 235 N.C. 179, 180-81 , 69 S.E.2d 244, 245 (1952). Instead of becoming a relator in the case, Seagroves on behalf of the City presented the information to the district attorney who reviewed the material and “was satisfied that probable cause existed for the filing of ... a nuisance abatement action” and filed and signed the complaint seeking the injunction. The abatement action was thus “initiated” by the district attorney and the fact that the City supplied the information to the district attorney is not dispositive. See Hawkins v. Webster, 78 N.C. App. 589, 593, 337 S.E.2d 682, 685 (1985) (action of defendants in procuring earlier civil action filed by third party did not constitute “initiation” within meaning of malicious prosecution).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9589672. Public record. Not legal advice.