ELSIE M. LEE,
Plaintiff
v
.
Wake County
No. 00 CVD 2269
RICHARD O'BRIEN and
wife, HAZEL O'BRIEN,
Defendants
Elsie M. Lee, pro se, plaintiff-appellant.
Davis Flanagan Bibbs & Smith, PLLC, by Rodney Eugene Davis,
Jr. and David C. Smith, for defendants-appellees.
WALKER, Judge.
Plaintiff and defendants are neighbors whose activities
towards each other have escalated over time. Plaintiff filed the
present action pro se alleging that defendants had “persecuted,
harassed, intimidated and threatened the Plaintiff and by involving
others in these acts, have caused the home, property and vehicle
owned by Plaintiff to be vandalized with resulting damage to
these.” Plaintiff's claims included nuisance, trespass against
property, trespass to person, and the necessity for injunctive
relief. Attached to the complaint was a listing of twenty-two
“harassing activities engaged in by [defendants] and their agentset. al.” These alleged harassing activities included defendants
standing on their own property watching plaintiff while she worked
outside and attempting to look into plaintiff's house, defendants
standing in the cul-de-sac with other neighbors conversing and
making disparaging remarks about plaintiff, defendants and their
agents flashing lights into plaintiff's house at night, defendants
placing a sign on their house facing plaintiff's house which stated
“WHAT A BITCH OUR NEIGHBOR IS,” defendants physically trespassing
on plaintiff's property, and defendants and their agents throwing
things at plaintiff, her home, and her property.
The trial court granted a temporary restraining order which
restrained defendants from going onto plaintiff's property and from
assaulting, threatening, or harassing plaintiff. This temporary
restraining order was continued when defendants requested a
continuance of the hearing on the restraining order.
Defendants counterclaimed alleging violation of covenants,
trespass, nuisance, malicious prosecution, intentional infliction
of emotional distress, and asking for injunctive relief, Rule 11
sanctions, and damages. Defendants claimed that plaintiff filed
multiple civil and criminal actions against defendants and
neighbors of defendants, whom plaintiff termed as defendants'
“agents” in her complaint. Although defendants admitted to some of
the actions alleged in the complaint, they contend that any actions
they took were in response to harassing actions taken and caused by
plaintiff. On 28 March 2000, after a hearing, the trial court denied
plaintiff's motion for a preliminary injunction finding that
“Plaintiff has failed to forecast sufficient evidence in support of
her claims and that the Plaintiff is not likely to succeed upon the
merits of her action.” The trial court further found that it was
likely that defendants would succeed on the merits of their
counterclaim and that they would suffer irreparable harm if the
preliminary injunction and restraining order were not granted.
Plaintiff was restrained from violating covenants, from
photographing and videotaping defendants and their guests and
neighbors, from trespassing on defendants' property, from
undressing and standing naked in front of her un-curtained or un-
shuttered windows at night, “[f]rom calling the police to report
unfounded or harassing complaints against Defendants and their
guests” or any of the neighbors who appeared in court on behalf of
defendants, and from filing civil or criminal actions or magistrate
summons against anyone in Wake County without prior written
approval of a Wake County District Court judge.
On 30 June 2000, the trial court found plaintiff in contempt
for violations of the temporary restraining order and preliminary
injunction by photographing and videotaping defendants and their
guests, by installing “a gutter splash block directing her water
runoff toward Defendants' property,” and by trespassing upon
defendants' property and damaging defendants' holly bushes and
grass. The trial court found that “the failure of the Defendant to
comply with the March 24, 2000 order of this Court described iswillful, deliberate, without just cause and is in deliberate
disregard of a court order.” The trial court sentenced plaintiff
to thirty days in the Wake County Jail but ordered that she could
purge herself of the contempt by turning over her video camera to
the police within ten days and by refraining from having any
contact with defendants. Plaintiff did not turn over her video
camera and continued to violate the temporary restraining order and
preliminary injunction. An order for her arrest was issued on 13
September 2000 and plaintiff was ordered to be held in the Wake
County Jail “until she has been sent for a Mental Health evaluation
to determine if she is competent to stand trial for criminal
contempt.”
Both parties proceeded to trial pro se. At the conclusion of
the trial, the trial court granted a permanent injunction against
plaintiff noting that she still continued to violate the
restraining order and injunction. It directed a verdict in favor
of defendants on the claim of “trespass to person” finding there
was no evidence presented on the claim and that “the court is not
aware that this is a valid claim under North Carolina Law.” The
trial court further directed a verdict in favor of plaintiff on
defendants' claim of violation of covenants. It instructed the
jury pursuant to the pattern jury instructions on the remaining
claims.
The jury found that defendants trespassed on plaintiff's
property and that defendants substantially and unreasonably
interfered with the plaintiff's use and enjoyment of her property. Nominal damages of $1 were granted on each claim. As to
defendants' claims, the jury found plaintiff trespassed on
defendants' property, that plaintiff substantially and unreasonably
interfered with defendants' use and enjoyment of their property,
and that plaintiff maliciously filed and proceeded with a civil
proceeding against defendants with actual malice. The jury awarded
nominal damages of $1 on each claim. After finding “Plaintiff's
malicious civil proceeding [was] accompanied by actual malice,” it
awarded punitive damages in the amount of $22,500. However, the
jury found that plaintiff did not intentionally or recklessly cause
severe emotional distress to either defendant.
Plaintiff filed a motion to amend judgment or for a new trial
pursuant to Rules 59 and 60 of the North Carolina Rules of Civil
Procedure. The trial court denied plaintiff's motion.
Although the appellant's brief violated the Rules of Appellate
Procedure, we elect to hear the appeal. On appeal, plaintiff
contends that the trial court erred in failing to dismiss the claim
for malicious civil prosecution. “To recover for malicious
prosecution the [complaining party] must show that [the other
party] initiated the earlier proceeding, that he did so maliciously
and without probable cause, and that the earlier proceeding
terminated in [the complaining party's] favor.” Stanback v.
Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). Either
criminal or civil proceedings may be the basis for a malicious
prosecution claim. Id. If the proceedings are civil in nature,then the complaining party must present evidence of special
damages. Id. at 203, 254 S.E.2d at 625.
Plaintiff first claims there was no evidence of prior
proceedings terminating in favor of defendant. Defendants alleged
in their counterclaim that, prior to the present action being
filed, plaintiff had caused criminal proceedings to be issued
against them and had caused multiple civil proceedings to be issued
against defendants and others whom plaintiff referred to as
“agents” of defendants. On appeal, plaintiff admits that at trial
defendants “claimed that [plaintiff] had filed many lawsuits with
[the] purpose of getting money.” She further admits defendants
testified at trial that they “had been dragged into court numerous
times at a loss of wages and time.” The record indicates that
plaintiff did not prevail on any of these claims.
In the present action, plaintiff brought suit on multiple
charges of harassment including “trespass to person” which the
trial court dismissed “due to the fact that no evidence was
presented on this claim and the court is not aware that this is a
valid claim under North Carolina Law.” Plaintiff also brought suit
for a permanent injunction against defendants. The trial court
issued a temporary restraining order against defendants; however,
after a hearing, it denied the motion for a preliminary injunction,
dismissed the temporary restraining order, and ultimately denied
the claim for a permanent injunction. These were proceedings filed
previous to defendants' claim for malicious prosecution and
ultimately terminated in favor of defendants. Thus, we find thereis sufficient evidence of prior proceedings terminating in favor of
defendants as required for malicious prosecution.
Plaintiff further contends that defendants did not present
evidence of special damages. Special damages are only relevant
when dealing with claims of malicious civil prosecution. Koury v.
John Meyer of Norwich, 44 N.C. App. 392, 397, 261 S.E.2d 217, 221,
disc. rev. denied, 299 N.C. 736, 267 S.E.2d 662 (1980). “The gist
of such special damage is a substantial interference either with
the plaintiff's person or his property.” Stanback, 297 N.C. at
203, 254 S.E.2d at 625. The substantial interference could include
causing an injunction or temporary restraining order to be issued
against the complaining party. Id. Here, evidence of both prior
civil and criminal proceedings initiated by plaintiff was
presented. In the civil proceedings, defendants testified that
they lost wages and time plus the cost of the proceedings. There
was also a temporary restraining order issued against them which
was later dissolved. This restraining order restrained defendants
from going on plaintiff's property and from “harassing assaulting
or threatening the plaintiff” based on the harassing activities
alleged in the complaint. The “harassing” activities listed in the
complaint included defendants standing on their own property
looking and talking to plaintiff, defendants gathering to talk with
guests and neighbors on their own property or in the common areas
and streets of the development, and defendants standing on their
own deck with guests and friends looking at plaintiff's property
and residence. Thus, we find there is sufficient evidence of asubstantial interference with defendants and with the use of their
property. As plaintiff does not assign error to the other elements
of malicious civil prosecution, we find the trial court did not err
in submitting this issue to the jury.
Plaintiff further contends that the trial court erred in
granting a permanent injunction which denied her access to the
police and to the courts. The preliminary injunction, which the
trial court converted to a permanent injunction, found the
following in part:
2. That it appears from the evidence presented
that the Plaintiff has filed multiple actions
against the homeowners association in Spring
Pines Subdivision and that she has caused
several criminal magistrate summons to be
issued against her neighbors and that such
actions were either dismissed or finally
determined against the Plaintiff. That it
appears that the motive behind such filings
was for the purpose of harassment and
annoyance and that these complaints were made
with malicious intent. That it further appears
that unless enjoined, the Plaintiff will
continue to engage in such actions and that
the ends of justice will not be served by the
unfettered filing of such actions by the
Plaintiff;
. . .
4. . . . that she repeatedly falsely reports
the Defendants, their guests, and her
neighbors to the police for various alleged
crimes and that these reports are made solely
to harass the Defendants; . . . .
In the trial court's order, plaintiff was restrained from the
following in part:
5) From calling the police to report unfounded
or harassing complaints against Defendants and
their guests and any neighbors who appeared in
court on behalf of the Defendants, includingPamela Joslin and Nancy Smith or any of their
guests or members of their families[;]
6) From filing any civil actions, criminal
complaints or magistrate summons against
anyone in Wake County, without the prior
written approval of a District Court Judge of
Wake County[.]
After the trial, the trial court found and ordered the following in
part:
8. On June 30, 2000, Judge Calabria entered an
order finding that the plaintiff was in
contempt for having violated the preliminary
injunction.
. . .
10. On September 13, 2000, Judge Calabria
issued an order for the plaintiff's arrest for
her failure to comply with the order of June
30, 2000.
. . .
12. The restraining order and preliminary
injunction entered by Judge Gessner remains in
effect.
13. The defendants and their witnesses at
trial testified that the plaintiff continues
to violate the restraining order and
preliminary injunction[.]
14. Based on the evidence at trial and the
history of the plaintiff's violations, it
appears that nothing less than permanent
incarceration or a permanent separation from
the defendants will be sufficient to prevent
the plaintiff from continuing to violate the
restraining order and preliminary injunction.
15. The plaintiff shall be permanently
enjoined from engaging in the acts prohibited
by the restraining order and preliminary
injunction and from having any further contact
with the defendants.
Thus, plaintiff is not denied access to the police by this order.
Instead, after finding that plaintiff made false reports solely for
the purpose of harassment, the trial court restrained her from
calling the police with “unfounded or harassing complaints.”
Plaintiff retains the ability to call the police with legitimate
complaints which are not for harassing purposes. Also, the trial
court's order was limited to defendants, their guests, and those
neighbors who testified at trial.
Similarly, the trial court's order does not deny plaintiff
access to the courts. Instead, it required plaintiff, prior to
filing a complaint in Wake County, to have the written approval of
the Wake County District Court. This requirement came after
finding multiple abuses of the legal processes. The trial court
found that plaintiff had initiated multiple civil and criminal
actions solely for the purpose of harassment and that “Plaintiff
will continue to engage in such actions and that the ends of
justice will not be served by the unfettered filing of such actions
by the Plaintiff.” It further found that, by continually violating
orders and injunctions already in place, plaintiff has failed and
will continue to fail to respect the authority of the courts.
Based on the facts and circumstances present in this case, we find
the trial court's permanent injunction and restraining order does
not deny plaintiff access to the police or to the courts.
In conclusion, we find the trial court did not err in denying
plaintiff's motion to dismiss the malicious civil prosecution claim
nor in the issuance of its permanent injunction and restrainingorder against plaintiff. Because plaintiff's remaining assignments
of error are based on the proposition that there was no evidence of
malicious civil prosecution, we overrule the remaining assignments
of error.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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