John M. Kirby
Mathis v. Dowling
In Mathis v. Dowling , decided on November 5, 2013, the plaintiff was the CEO and Executive Director of a Council in Haywood County that provided relief to flood victims. Suspicions were raised that she had improperly used funds to pay for operating expenses. Some of the information leading to these suspicions came from others at the Council. She was charged with several counts of embezzlement. These counts were ultimately dismissed, and the plaintiff sued several persons for malicious prosecution.
The lower court granted summary judgment to the defendants, and the Court of Appeals affirmed. The court held that the defendants did not "initiate" proceedings against the Plaintiff. The court held that providing "honest assistance" to the police was not improperly initiating proceedings. The court also noted the defendant's fiduciary duty regarding the funds. The court also held that there was probable cause; this was based in part on invoices that were not paid, and 401(k) violations. Finally, the court held that there was not sufficient evidence of "malice." The court held that even though one of the defendants did not "care for" the plaintiff, that did not establish that the defendant was motiviated by ill-will, spite or revenge.
John Kirby has represented parties in claims for malicious prosecution in North Carolina.