Dunn v. Harris

ARNOLD, Judge. The issue dispositive of this appeal is whether the trial court erred in denying defendant’s motion for a directed verdict at the close of all the evidence. We believe that defendant’s motion [139] should have been allowed. Thus, we reverse the judgment of the trial court. The question presented by the defendant’s motion for a directed verdict is whether the evidence, when considered in the light most favorable to plaintiff, is sufficient to submit the case to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971); Horne v. Trivette, 58 N.C. App. 77, 293 S.E. 2d 290, disc. rev. denied, 306 N.C. 741, 295 S.E. 2d 759 (1982). “To recover for malicious prosecution the plaintiff must show that defendant initiated the earlier proceeding, that he did so maliciously and without probable cause and that the earlier proceeding terminated in plaintiffs favor.” Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E. 2d 611, 625 (1979). To recover for malicious prosecution in civil cases plaintiff also must show special damages such as substantial interference with either his person or property. Id. at 203, 254 S.E. 2d at 625. Defendant argues that she was entitled to a directed verdict because inter alia plaintiff failed to offer any evidence that she initiated the earlier proceeding maliciously and without probable cause. The malice necessary to support a claim for malicious prosecution is not express or particular malice such as ill will, grudge or a desire for revenge, but is rather general malice which consists of a wrongful act done intentionally, and without excuse or just cause. Byrd, Malicious Prosecution in North Carolina, 47 N.C. L. Rev. 285, 302 (1969). See also, Gaither v. Carpenter, 143 N.C. 240, 55 S.E. 625 (1906). Malice has also been found when the earlier proceeding was begun primarily for a purpose other than the adjudication of the claim in suit and where the defendant’s conduct is a clear abuse of defendant’s position of power or an exploitation of the plaintiffs position of weakness. W. Keeton, Prosser and Keeton on Torts § 120 (5th Edition 1984). The only evidence to which plaintiff can point to show that the earlier proceeding was initiated maliciously and without probable cause is that the defendant discovered the alleged forgeries in 1976; that she and her attorney knew before plaintiff bought the property that he was going to buy the property but failed to inform him of her claim to a one-eighth (1/8) interest in the property; that she thought he might have been a middleman purchasing the property for her ex-husband, and that even though she [140] knew of other forged deeds, she had not brought actions against the owners of those properties. We hold that this evidence is insufficient to support a finding that the defendant initiated the earlier proceeding maliciously and without probable cause. The defendant had no duty to inform the plaintiff of her claim prior to his purchase of the property. Furthermore, the fact that she instituted an action to obtain her interest in this property and not the other properties does not show the requisite malice. We find no evidence in the record that would support a finding that the action was instituted without probable cause. Finally, the defendant’s actions in taking the voluntary dismissal without prejudice after she learned her claim was barred by the statute of limitations may have subjected her to liability for damages under a theory of abuse of process. See, Stanback, 297 N.C. at 200, 254 S.E. 2d at 624. See also Byrd, supra. However, these actions may not be used to support the malicious prosecution claim, and an abuse of process claim was not submitted to the jury. Thus, we hold the trial court erred in failing to grant a directed verdict in favor of defendant at the close of all the evidence. Reversed. Judges Whichard and Johnson concur.