Alexander v. Alexander
Alexander v. Alexander
Opinion of the Court
William D. Alexander (“plaintiff’) appeals the trial court’s order granting Linda B. Alexander’s (“defendant”) motion for judgment notwithstanding the verdict on the ground that plaintiff failed to present evidence in support of the element of special damages necessary to maintain a malicious prosecution claim. We reverse.
Plaintiff and defendant were formally husband and wife. They are the parents of two children, one of which is a minor. On 2 May 1994, defendant filed a complaint in which she sought, inter alia, domestic violence protection pursuant to Chapter 50B of the North Carolina General Statutes. Defendant sought and obtained an ex parte domestic violence protective order which evicted plaintiff from the marital home, as well as granted her temporary custody of their children. Plaintiff entered into a consent order on 10 May 1994 that enjoined him from assaulting, harassing, or intimidating defendant. The consent order prohibited plaintiff from coming about the residence or workplace of defendant, and sequestered the former marital home for the temporary use and benefit of defendant and the minor child.
On 15 September 1999, subsequent to the dismissal of defendant’s domestic violence claim, plaintiff asserted claims for abuse of process, malicious prosecution, and alienation of affections against defendant. The court granted defendant’s motion for directed verdict in regards to plaintiff’s abuse of process and alienation of affections claims, but denied defendant’s motion as to the malicious prosecution claim. On 9 November 2000, the jury returned a verdict in favor of plaintiff, finding that defendant maliciously instituted a domestic violence proceeding against plaintiff in 1995. The jury awarded nominal damages of one dollar ($1.00), and punitive damages of one thousand five hundred dollars ($1,500.00). Upon return of the jury verdict, the court granted defendant’s motion for judgment notwithstanding the verdict on the issue of special damages. Plaintiff appeals and assigns error to the trial court’s conclusion that his evidence was not legally sufficient to take the case to the jury and support a verdict in his favor on the issue of special damages.
Plaintiff contends that the trial court erred by granting defendant’s motion for judgment notwithstanding the verdict on his maliciqus prosecution claim. We agree. A motion for judgment notwithstanding the verdict is simply a renewal of a party’s earlier motion for directed verdict. Kearns v. Horsley, 144 N.C. App. 200, 207, 552 S.E.2d 1, 6 (2001). “ ‘On appeal the standard of review for a JNOV [judgment notwithstanding the verdict] is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury.Id. (citation omitted). The standard is high for the moving party as the motion should be denied if there is more than a scintilla of evidence to support the plaintiff’s prima facie case. Id.
In this case, we view plaintiffs evidence as sufficient to meet the prima facie case of malicious prosecution. Therefore, we hold that the trial court erred in granting defendant’s motion for JNOV. Plaintiff argues that his evidence on the issue of special damages is legally sufficient to support a malicious prosecution claim against defendant. We agree. In order to recover for malicious prosecution, the plaintiff must show that the defendant initiated the earlier proceeding, that she did so maliciously, and without probable cause, and that the earlier proceeding terminated in the plaintiffs favor. Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). In civil actions, the plaintiff must show that there was some arrest of his person, seizure of his property, or some other special damage resulting from the action such as would not necessarily result in all similar cases. Id. at 202-03, 254 S.E.2d at 625.
The gist of such special damage is a substantial interference either with the plaintiffs person or his property such as causing execution to be issued against the plaintiffs person, causing an injunction to issue prohibiting plaintiffs use of his property in a certain way, causing a receiver to be appointed to take control of plaintiffs assets, causing plaintiffs property to be attached, or causing plaintiff to be wrongfully committed to a mental institution.
Id. at 203, 254 S.E.2d at 625 (citations omitted). Furthermore, an interference with the use, enjoyment, transfer of, and profit from property is not the inherent and usual result of all civil litigation and could result in special damage. Brown v. Averette, 68 N.C. App. 67, 70, 313 S.E.2d 865, 867 (1984). However, embarrassment, inconvenience, loss of work and leisure time, stress, strain and worry are experienced by all litigants to one degree or another; hence, allegations of this kind would fail to qualify as substantial interference and would not constitute special damage. Id.
Reversed.
Dissenting Opinion
dissenting.
I disagree with the majority that there is substantial evidence plaintiff suffered special damage as a result of the prohibitions in the ex parte domestic violence protective order. I, therefore, dissent.
In a malicious prosecution claim based on the institution of a prior civil proceeding,
In this case, viewing the evidence in the light most favorable to plaintiff, see Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986) (evidence is viewed in the light most favorable to the non-moving party on a motion for judgment notwithstanding the verdict), there was no substantial evidence plaintiff suffered special damage, see Cobb v. Reitter, 105 N.C. App. 218, 220, 412 S.E.2d 110, 111 (1992) (if non-moving party has not presented substantial evidence of the elements of his claim for relief, the moving party is entitled to judgment notwithstanding the verdict). The ex -parte order required plaintiff to not “assault, threaten, abuse, follow, harass or interfere” with defendant, to “stay away from” defendant’s residence, and to stay away from defendant’s place of employment. Plaintiff cannot claim any damage arising from an order that directs he not assault or harass his wife. Furthermore, any restriction on plaintiff’s right to be on the property where defendant resided
. The filing of a complaint for a domestic violence protective order is a civil action. N.C.G.S. § 50B-2(a) (2001).
. The record shows defendant’s residence was owned by plaintiff and defendant and had once served as their marital home. Plaintiff, however, had not resided there in more than a year and indeed had agreed, pursuant to a consent order, that those premises were to be “temporarily sequestered for the exclusive use and benefit” of defendant. The consent order did not fix an expiration date but, because it was entered pursuant to chapter 50B, it expired by operation of law on 11 May 1995. See N.C.G.S. § 50B-3(b) (2001). There is no evidence in the record plaintiff had made any attempt to visit defendant’s residence after the expiration of the consent order.
. The ex parte order was issued on 5 June 1995 and dissolved on 14 June 1995.
. While I do not believe plaintiff has a claim for malicious prosecution, I do note that others who find themselves in situations similar to plaintiff’s situation, without proof of special damage, may move for Rule 11 sanctions to be imposed against the opposing party. This motion may be made if the plaintiff believes the defendant’s complaint for a domestic violence protective order was filed without sufficient basis in fact, existing law, or “a good faith argument for the extension, modification, or reversal of existing law,” or that the complaint was filed for an “improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” N.C.G.S. § 1A-1, Rule 11(a) (2001). These sanctions may include “an order to pay the [plaintiff] . . . the amount of the reasonable expenses incurred because of the filing of the [complaint].. . including a reasonable attorney’s fee.” Id.
Reference
- Full Case Name
- WILLIAM D. ALEXANDER, Plaintiff v. LINDA B. ALEXANDER, Defendant
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- 9 cases
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- Published