An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-279 NORTH CAROLINA COURT OF APPEALS Filed: 17 February 2015 CURTIS JON BUCK, Sr., Plaintiff v. Rowan County No. 11 CVS 1361 ALICE PAIGE BUCK, Defendant Appeal by defendant from judgment and orders entered 1 August 2013 by Judge Bradley B. Letts in Rowan County Superior Court. Heard in the Court of Appeals 10 September 2014. No brief filed for plaintiff-appellee. Ferguson, Scarbrough, Hayes, Hawkins & DeMay, PLLC, by Edwin H. Ferguson, Jr., for defendant-appellant. CALABRIA, Judge. Alice Paige Buck ( defendant ) appeals from (1) an amended judgment based upon a jury verdict finding her liable for malicious prosecution and abuse of process; and (2) the trial court s orders denying defendant s motions for judgment notwithstanding the verdict ( JNOV ) and for a new trial. We find no error.
-2- I. Background Plaintiff and defendant were married on 4 October 1997. During their marriage, they had two children. On 23 November 2009, the parties separated and plaintiff moved out of the marital residence located at 602 Mulberry Lane in Salisbury, North Carolina. Defendant remained in the residence with the children. On 14 January 2010, plaintiff entered the unoccupied marital residence at 602 Mulberry Lane through an unlocked front door, which defendant had attempted to secure with a barricade consisting of a chair and drum set. Defendant had scheduled for a locksmith to change the front door locks later that day. Plaintiff did not inform defendant that he would be in the residence at that time, and defendant never gave plaintiff permission to enter the residence when she was not present. As a result, defendant initiated domestic criminal trespass proceedings against plaintiff in Rowan County District Court. Defendant also sought and was granted temporary emergency custody of the parties minor children. Plaintiff was found not guilty of domestic criminal trespass in district court on 25 March 2010. The parties resumed shared custody of the minor children.
-3- On 3 August 2010, the parties met at the marital residence and engaged in sexual relations. According to plaintiff, the sex was consensual. However, the next day defendant reported to Sergeant R.T. Taylor ( Sgt. Taylor ) of the Granite Quarry Police Department that plaintiff used a knife to threaten her and force her to have sex. Based upon defendant s statement, Sgt. Taylor sought and obtained arrest warrants against plaintiff for first degree sex offense, first degree rape, and first degree kidnapping. On 4 August 2010, defendant filed a complaint seeking a domestic violence protective order ( DVPO ) against plaintiff. On 9 August 2010, the trial court issued an ex parte temporary DVPO and awarded temporary custody of the minor children to defendant. After a trial on the merits, the trial court dismissed the DVPO. On 16 March 2011, the criminal charges filed by Sgt. Taylor were also dismissed after the trial court determined that the charges were not supported by probable cause. On 10 May 2011, plaintiff filed a complaint against defendant alleging claims of malicious prosecution and abuse of process based upon the domestic trespass charge and DVPO complaint initiated by defendant, as well as the criminal
-4- charges procured by Sgt. Taylor. Defendant filed an answer which included counterclaims for assault and battery and false imprisonment. On 24 October 2012, the trial court granted summary judgment in favor of defendant as to the claim for malicious prosecution of the DVPO. The remaining claims and counterclaims were tried by a jury beginning 22 January 2013. At the close of plaintiff s evidence, defendant made a motion for directed verdict as to all of plaintiff s claims, and the trial court denied the motion. Defendant renewed her motion for directed verdict at the close of all the evidence, and the trial court again denied the motion. On 28 February 2013, the trial court entered judgment in favor of plaintiff based upon jury verdicts in plaintiff s favor for each claim and counterclaim. The jury awarded plaintiff $131,056 in damages. On 11 March 2013, defendant filed a motion for JNOV and a motion for a new trial. Based upon a recently issued opinion by the North Carolina Supreme Court in N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, Inc., 366 N.C. 505, 742 S.E.2d 781 (2013), the trial court granted defendant s motion for JNOV as to the malicious prosecution claim relating to the charges of first degree rape, first degree kidnapping, and first degree
-5- sexual offense that had been initiated by Sgt. Taylor. trial court denied the remainder of defendant s motions. The The court entered an amended judgment which awarded plaintiff $16,055. [R pp 207-13] Defendant appeals. II. Standard of Review On appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000). A motion for either a directed verdict or JNOV should be denied if there is more than a scintilla of evidence supporting each element of the non-movant s claim. Springs v. City of Charlotte, 209 N.C. App. 271, 275, 704 S.E.2d 319, 323 (2011) (internal quotations and citations omitted). While an order for new trial pursuant to Rule 59 which satisfies the procedural requirements of the Rule may ordinarily be reversed on appeal only in the event of a manifest abuse of discretion, when the trial court grants or denies a new trial due to some error of law, then its decision is fully reviewable. Chiltoski v. Drum, 121 N.C. App. 161, 164, 464 S.E.2d 701, 703 (1995) (quoting Garrison v. Garrison, 87 N.C.
-6- App. 591, 594, 361 S.E.2d 921, 923 (1987)). Appellate courts thus must utilize the abuse of discretion standard only in those instances where there is no question of law or legal inference. Id. (quoting Seaman v. McQueen, 51 N.C. App. 500, 505, 277 S.E.2d 118, 121 (1981)). III. Malicious Prosecution Defendant argues that the trial court erred by denying her motions for directed verdict, JNOV, and new trial with regards to plaintiff s claim for malicious prosecution of the charge of domestic criminal trespass. We disagree. A. Directed Verdict/JNOV An action in tort for malicious prosecution is based upon a defendant s malice in causing process to issue. Middleton v. Myers, 299 N.C. 42, 44, 261 S.E.2d 108, 109 (1980). To prove a claim for malicious prosecution, a plaintiff must establish four elements: (1) the defendant instituted, procured, or participated in a criminal proceeding against the plaintiff; (2) without probable cause; (3) with malice; and (4) the criminal proceeding terminated in favor of the plaintiff. Cook v. Lanier, 267 N.C. 166, 169, 147 S.E.2d 910, 913 (1966). In the instant case, defendant concedes that she instituted a domestic criminal trespass proceeding against plaintiff and that the proceeding
-7- terminated in favor of plaintiff. However, defendant contends that there was no evidence of either malice or lack of probable cause. Probable cause, as it applies to claims of malicious prosecution, 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. It is not essential that the person bringing the action knows the facts necessary to insure a conviction, but that there are known to him sufficient grounds to suspect that the person he charges was guilty of the offense. Gupton v. Son-Lan Dev. Co., Inc., 205 N.C. App. 133, 138, 695 S.E.2d 763, 768 (2010) (internal quotations and citations omitted). Pursuant to N.C. Gen. Stat. 14-134.3 (2013), an individual who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse is guilty of domestic criminal trespass. In the instant case, plaintiff testified that, prior to defendant s initiation of criminal proceedings, he had visited her home almost daily, had spent the night at the marital home on multiple occasions, and that he had a key to the home. He further testified that defendant never stated that he was not permitted in her home. Plaintiff s
-8- testimony provided more than a scintilla of evidence that a reasonable person would not have commenced a domestic criminal trespass proceeding against him. Thus, there was sufficient evidence that defendant lacked probable cause when she instituted criminal proceedings against plaintiff. Moreover, while the evidence that defendant lacked probable cause did not definitively establish that she acted with malice in instituting the criminal proceedings, it was sufficient to create a jury question as to the element of malice. See Cook, 267 N.C. at 170, 147 S.E.2d at 914 ( Although a want of probable cause may not be inferred from malice, the rule is well settled that malice may be inferred from want of probable cause, e.g., as where there was a reckless disregard of the rights of others in proceeding without probable cause. ). Thus, plaintiff presented sufficient evidence of each element of malicious prosecution to submit the claim to the jury and the trial court did not err by denying defendant s motions for directed verdict and JNOV. Defendant further argues that plaintiff provided insufficient evidence of damages to support the jury s award of $2,250 in damages for malicious prosecution. Defendant notes that plaintiff testified that he spent $800 defending against
-9- the domestic criminal trespass charge, and she contends that that amount should constitute the entirety of plaintiff s damages. However, it is well established that, in an action for malicious prosecution, the plaintiff may recover any loss which was proximately caused by the defendant s improper initiation of a criminal proceeding. See Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139 (1964). In the instant case, plaintiff testified that as a result of defendant s actions, he was arrested, spent a night in jail, and became physically ill. This testimony was sufficient to support the jury s award of additional damages beyond the costs of defending against defendant s action. This argument is overruled. B. New Trial Defendant next argues that the trial court erred by denying her motion for a new trial on plaintiff s malicious prosecution claim because the jury s verdict was contradictory and contrary to the trial court s instructions. In support of this argument, defendant notes that by finding her liable for malicious prosecution, the jury necessarily determined that defendant acted with malice, and yet, the jury refused to award plaintiff punitive damages. However, there is no requirement that a jury award punitive damages, even if aggravating factors are present.
-10- See Harrell v. Bowen, 362 N.C. 142, 148, 655 S.E.2d 350, 354 (2008) ( Once the plaintiff meets the requirements of this section, the jury must determine in its discretion whether or not to award punitive damages. (citing N.C. Gen. Stat. 1D-35 (2007)). Thus, the jury s verdict is neither contradictory nor contrary to the trial court s instructions. Accordingly, the trial court properly denied defendant s motion for a new trial. This argument is overruled. IV. Abuse of Process Defendant argues that the trial court erred by denying her motions for directed verdict, JNOV, and new trial with regards to plaintiff s claim for abuse of process. We disagree. A. Directed Verdict/JNOV One who uses legal process to compel a person to do some collateral act not within the scope of the process or for the purpose of oppression or annoyance is liable in damages in a common law action for abuse of process. Melton v. Rickman, 225 N.C. 700, 703, 36 S.E.2d 276, 278 (1945). [A]buse of process requires both an ulterior motive and an act in the use of the legal process not proper in the regular prosecution of the proceeding, and that [b]oth requirements relate to the defendant s purpose to achieve through the use of the process some end foreign to those it was designed to effect. The ulterior
-11- motive requirement is satisfied when the plaintiff alleges that the prior action was initiated by defendant or used by him to achieve a collateral purpose not within the normal scope of the process used. The act requirement is satisfied when the plaintiff alleges that once the prior proceeding was initiated, the defendant committed some wilful act whereby he sought to use the existence of the proceeding to gain advantage of the plaintiff in respect to some collateral matter. Stanback v. Stanback, 297 N.C. 181, 201, 254 S.E.2d 611, 624 (1979) (internal quotations and citations omitted), overruled on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). In the instant case, defendant contends that (1) plaintiff s complaint failed to adequately state a claim for abuse of process and (2) plaintiff provided insufficient evidence of the elements of abuse of process. Defendant s first contention is not properly before us, as it is well established that where there has been a trial, a party cannot on appeal interpose the defense that the complaint fails to state a claim upon which relief can be granted. Dale v. Lattimore, 12 N.C. App. 348, 351-52, 183 S.E.2d 417, 419 (1971). At trial, plaintiff presented evidence that, after initiating domestic criminal trespass proceedings against
-12- plaintiff, defendant sought and obtained emergency custody of the couple s minor children. After plaintiff was found not guilty, the parties resumed shared custody. Similarly, after plaintiff was charged with rape, kidnapping, and first degree sexual offense, defendant obtained a temporary DVPO and emergency custody of the children. All of the criminal charges and the DVPO were subsequently dismissed and the parties again resumed shared custody. This evidence provides more than a scintilla of evidence that defendant misused legal process with an ulterior motive to achieve a collateral purpose not within the normal scope of the process used. Stanback, 297 N.C. at 201, 254 S.E.2d at 625. Consequently, the trial court properly denied defendant s motions for directed verdict and JNOV. B. New Trial Finally, defendant argues that the trial court abused its discretion by denying her motion for new trial as to plaintiff s abuse of process claims regarding the offenses of first degree rape, first degree sexual offense, and first degree kidnapping, after granting defendant s motion for JNOV for the malicious prosecution of those same offenses. Defendant cites no authority to support this argument. Moreover, while claims for
-13- malicious prosecution and abuse of process are similar, they ultimately remain distinct torts, with differing elements. See Barnette v. Woody, 242 N.C. 424, 431, 88 S.E.2d 223, 227 (1955). As noted above, plaintiff presented sufficient evidence to support his abuse of process claims, regardless of whether his malicious prosecution claims for the same offenses had merit. Accordingly, the trial court did not abuse its discretion by denying defendant s motion for a new trial as to plaintiff s claims for abuse of process. This argument is overruled. V. Conclusion Plaintiff provided more than a scintilla of evidence that defendant was liable for the malicious prosecution of a domestic criminal trespass proceeding, and thus, the trial court properly denied defendant s motions for directed verdict and JNOV as to that claim. Additionally, there was no evidence that the jury failed to follow the trial court s instructions regarding malicious prosecution, and as a result, the trial court properly denied defendant s motion for a new trial. Plaintiff presented more than a scintilla of evidence that defendant misused legal process with an ulterior motive to achieve a collateral purpose not within the scope of the process, and thus, the trial court properly denied defendant s
-14- motions for directed verdict and JNOV as to that claim. In addition, the trial court did not abuse its discretion in denying defendant s motion for a new trial as to the abuse of process claim. Defendant received a fair trial, free from error. No error. Judges ELMORE and STEPHENS concur. Report per Rule 30(e).