WILLIAM D. ALEXANDER,
Plaintiff
v
.
LINDA B. ALEXANDER,
Defendant
Kenneth T. Davies for plaintiff-appellant.
No brief for defendant-appellee.
HUNTER, Judge.
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 oftheir 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 5 June 1995, upon the expiration of the consent order,
defendant initiated a complaint and motion for a domestic violence
protective order in which she requested that plaintiff be ordered
not to come about her, the residence, her work place, or the
child's school. The judge issued an ex parte domestic violence
protective order against plaintiff which enjoined him from
assaulting, threatening, abusing, following, harassing or
interfering with defendant. Additionally, a law enforcement
officer was instructed to arrest plaintiff if there was probable
cause to believe he had violated the protective order. After
defendant's evidence was presented, when the hearing came before
the trial judge on 14 June 1995, the court found that she failed to
prove any acts of domestic violence. Hence, her claim for domestic
violence against plaintiff was involuntarily dismissed.
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 asto 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
malicious 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. Moreover, our Supreme Court has
held that when ruling on a motion for directed verdict pursuant to
N.C. Gen. Stat. § 1A-1, Rule 50(a) (2001), the trial court must
consider the evidence in the light most favorable to the plaintiff. Newton v. New Hanover County Bd. Of Education, 342 N.C. 554, 563,
467 S.E.2d 58, 65 (1996). “The evidence supporting the plaintiff's
claims must be taken as true, and all contradictions, conflicts,
and inconsistencies must be resolved in the plaintiff's favor,
giving the plaintiff the benefit of every reasonable inference.”
Id.
In this case, we view plaintiff's 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 plaintiff's 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
plaintiff's person or his property such as
causing execution to be issued against the
plaintiff's person, causing an injunction to
issue prohibiting plaintiff's use of his
property in a certain way, causing a receiver
to be appointed to take control of plaintiff's
assets, causing plaintiff's property to beattached, 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.
In the instant case, the special damage requirement of the
plaintiff's malicious prosecution claim is at issue. The ex parte
domestic violence protective order was an injunction that
substantially interfered with the plaintiff's person and property.
This order enjoined plaintiff from assaulting, threatening,
abusing, following, harassing or interfering with defendant, and
plaintiff was ordered to stay away from the marital home.
Moreover, a law enforcement officer was instructed to arrest
plaintiff if there was probable cause to believe plaintiff had
violated these injunction provisions. Consequently, these
restrictions significantly interfered with plaintiff's rights of
free movement, and communication with defendant, his then spouse.
Moreover, these prohibitions greatly interfered with the use and
enjoyment of plaintiff's personal property by ordering him to stay
away from his home that he then shared with defendant. Afteranalyzing all evidence in the light most favorable to plaintiff,
and giving him the benefit of all reasonable inferences, we
conclude that the prohibitions stemming from the ex parte domestic
violence protective order are sufficient to find the plaintiff
suffered substantial interference resulting in special damages.
Reversed.
Judge TIMMONS-GOODSON concurs.
Judge GREENE dissents in a separate opinion.
GREENE, Judge, 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,
(See footnote 1)
a plaintiff must prove “that there was
some arrest of his person, seizure of his property, or some other
element of special damage resulting from the action such as would
not necessarily result in all similar cases.” Stanback v.
Stanback, 297 N.C. 181, 203, 254 S.E.2d 611, 625 (1979). “The gist
of such special damage is a substantial interference either with
the plaintiff's person or his property such as . . . causing an
injunction to issue prohibiting [the] plaintiff's use of his
property in a certain way.” Id. (citations omitted). A slightinterference with a person's movement is not enough to cause
special damage as there must be a substantial interference with the
plaintiff's right of movement. U v. Duke Univ., 91 N.C. App. 171,
179, 371 S.E.2d 701, 707 (no special damage where the plaintiff was
restricted from entering a building owned by the defendant and from
using the defendant's instrument), disc. review denied, 323 N.C.
629, 374 S.E.2d 590 (1988). Likewise, if the interference is
“merely an interference with some right of use” and not with the
plaintiff's property, a party has suffered no special damage. Id.
at 180, 371 S.E.2d at 707.
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 theproperty where defendant resided
(See footnote 2)
and the place where she worked
was not substantial. In fact, as long as plaintiff did not harass,
follow, or interfere with defendant, he remained free to move about
in any place other than defendant's residence and her place of
employment. In any event, the ex parte order was valid for only
ten days and thus any interference was minimal.
(See footnote 3)
See N.C.G.S. §
50B-2(c) (2001).
Accordingly, I would affirm the trial court's judgment
determining there was insufficient evidence to establish plaintiff
suffered special damage.
(See footnote 4)
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