An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1419


Filed: 16 August 2005


v .                                 Graham County
                                    No. 03 CVS 111

    Appeal by plaintiff from judgment entered 23 August 2004 by Judge Zoro J. Guice, Jr., in Graham County Superior Court. Heard in the Court of Appeals 15 June 2005.

    Adams Hendon Carson Crow and Saenger, P.A., by Martin Reidinger and Matthew S. Roberson, for plaintiff appellant.

    McKinney & Tallant, P.A., by Zeyland G. McKinney Jr., for defendant appellees.

    MCCULLOUGH, Judge.

    Plaintiff, Thomas L. Thrash, appeals from an order granting a directed verdict and costs to defendants Nina Zimbelman and Peter Zimbelman. We affirm in part and vacate in part.

    On 12 December 1972 plaintiff Thomas Thrash purchased a deed for a seventy-five-acre parcel of land in the Mountain Creek area of Graham County, North Carolina. Starting in 1995 and continuing into 1996, defendant Peter Zimbelman purchased several parcels of land in Graham County. A portion of the land purchased by Mr. Zimbelman lay adjacent to the real property owned by Mr. Thrash.After acquiring the parcels in Graham County, Mr. Zimbelman transferred possession of this land to codefendant Nina Zimbelman in August 2000.
    Subsequent to Mr. Zimbelman's purchase of the land, the Zimbelmans hired a surveyor to measure the boundary lines of their property. The surveyor later reported to the Zimbelmans that he believed the previous boundary line to be incorrect, and indicated that a gap existed between the Zimbelmans' property and the property of Thomas Thrash. After the surveyor informed the Zimbelmans he could find no one with record title to the land, defendants claimed possession of the 14.78-acre tract of land (the tract) located between their property and the property owned by Mr. Thrash. On 24 October 2000, Nina and Peter Zimbelman recorded a quitclaim deed transferring title of the tract to Nina Zimbelman.     Mr. Thrash learned of the quitclaim deed around the end of October, and contacted Peter Zimbelman to voice his concerns about the recorded deed. Mr. Thrash contended that the tract belonged to him, and that the two parties should obtain surveys of the property to resolve the boundary dispute. As a result of this conversation, Mr. Thrash hired a survey crew to determine the border between the two properties. Before the survey was completed, Mr. Thrash discovered that improvements (such as the cutting of trees and the construction of roads) had been made to the tract at the Zimbelmans' behest. In response to his discovery, Mr. Thrash issued two letters on 22 November 2000, through his attorney, informing the Zimbelmans that he owned the tract in question. Theletters further requested that the Zimbelmans stop work on the tract and relinquish their claim to Mr. Thrash's property. Following this letter, the Zimbelmans temporarily halted work on the tract.
    After discovering the Zimbelmans had resumed work on the tract, Mr. Thrash once again sent them a letter on 11 September 2002, this time requesting the Zimbelmans remove certain personal items from the tract, including miscellaneous construction equipment, a trailer, and a water tank. Subsequent to sending the letter, Mr. Thrash entered the tract on 3 October 2002 for the purpose of logging, building roads, and checking the property line. While Mr. Thrash was working on the property, Peter Zimbelman drove onto the tract and told Mr. Thrash to leave, as he was trespassing. Mr. Thrash refused to leave the property, causing Mr. Zimbelman to call the police. When the police arrived they asked each party who owned the property, and after both parties claimed ownership of the tract, the police informed the parties they should seek legal counsel and then left the scene.
    Shortly after the police left, Mr. Thrash once again started to perform logging operations on the tract. In response to the resumed operations, Mr. Zimbelman placed himself in the path of Mr. Thrash's construction equipment. Though not present on the tract at the time of the confrontation, Mrs. Zimbelman was contacted by a neighbor who informed her of the events that had transpired. After hearing Mr. Thrash had once again started logging operations on the tract, she contacted the local magistrate and procured an arrestwarrant against Mr. Thrash for alleged damage to her real property.
    Subsequently a deputy sheriff arrived on the scene and arrested Mr. Thrash on a charge of injury to real property. Mr. Thrash was then taken to the Graham County jail where he was fingerprinted, questioned, and then released with a promise to appear in court. Mr. Thrash appeared in court for the charge of injury to real property on 27 January 2003, and the case was subsequently dismissed.
    After the charges against him were dismissed, Thomas Thrash filed a complaint on 16 July 2003 alleging Nina and Peter Zimbelman initiated the previous criminal prosecution maliciously and without probable cause. The matter was heard in the Superior Court of Graham County on 24 May 2004. At the close of plaintiff's evidence, the trial court granted the Zimbelmans' motion for a directed verdict on the ground that Mr. Thrash's evidence failed to show the existence of a lack of probable cause for the issuance of a warrant against him.
    Plaintiff Thomas Thrash now appeals.
    In his first argument on appeal, Mr. Thrash contends that the trial court erred by granting the defendants' motion for a directed verdict. Specifically, Mr. Thrash argues that the trial court wrongly concluded that he had failed to show that the Zimbelmans lacked probable cause when initiating the earlier charge of injury to real property. We have reviewed Mr. Thrash's argument and find it to be without merit.    “Plaintiff must establish four elements to support a malicious prosecution claim: (1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.” Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510, reh'g denied, 338 N.C. 525, 452 S.E.2d 807 (1994). Probable cause has been defined as the existence of such facts and circumstances, known to the defendant at the time, as would induce a reasonable man to commence criminal proceedings. Id. at 750, 448 S.E.2d at 510. The burden of proving want of probable cause is on the party pursuing the action for malicious prosecution. Flippo v. Hayes, 98 N.C. App. 115, 118, 389 S.E.2d 613, 615, aff'd, 327 N.C. 490, 397 S.E.2d 512 (1990). "Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court." Best, 337 N.C. at 750, 448 S.E.2d at 510.
    In the case sub judice, Mr. Thrash asserts that the Zimbelmans had no basis for claiming ownership of the tract, and thus, had no probable cause for charging him with injury to real property. It is not disputed that the Zimbelmans initiated the earlier action for injury to real property and that said action terminated in Mr. Thrash's favor. However, Mr. Thrash has failed to show that the Zimbelmans lacked probable cause for initiating the criminal proceeding against him. Indeed, the record evidence tends to show that the Zimbelmans possessed a quitclaim deed describing theproperty in question, that the boundary between the properties owned by the two parties was in dispute, and that the Zimbelmans made improvements to the property before the action for injury to real property was initiated. Under these circumstances, a reasonable person in the Zimbelmans' position would have possessed sufficient probable cause to support a charge of injury to real property. This assignment of error is overruled.
    In his next argument on appeal, Mr. Thrash contends that the trial court erred in granting a directed verdict in favor of defendant Peter Zimbelman. Specifically, Mr. Thrash asserts that the directed verdict was erroneous because there was evidence that Mr. Zimbelman "acted in concert" with Mrs. Zimbelman to have Mr. Thrash arrested and prosecuted. Because we have held that the action versus the Zimbelmans could not proceed based on Mr. Thrash's failure to show a lack of probable cause, it follows that no action could be maintained against Mr. Zimbelman on a theory that he was "acting in concert" with Mrs. Zimbelman. In either case, probable cause was not lacking. This assignment of error is overruled.
    In his next argument on appeal, Mr. Thrash contends that the trial court erred in awarding the Zimbelmans an expert witness fee for Terry James as part of the costs of the action because he was not subpoenaed. While the trial court has broad discretion to award costs pursuant to N.C. Gen. Stat. § 6-20 (2003), it mayexercise that discretion "only within the bounds of its statutory authority." Wade v. Wade, 72 N.C. App. 372, 384, 325 S.E.2d 260, 271 (1985), disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). "Unless an expert witness is subpoenaed ... the witness' fees are not generally recognized as costs. Id. On appeal, the Zimbelmans concede that no subpoena was issued for Terry James. As such, the portion of the trial court's judgment awarding this item of costs is vacated.
    In his final argument on appeal, Mr. Thrash contends that the trial court erred by awarding deposition expenses to the Zimbelmans. Mr. Thrash makes no argument concerning this Court's decision in Department of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461, 586 S.E.2d 780 (2003) (only statutory costs may be taxed), and instead argues only that the Zimbelmans failed to show deposition expenses were either reasonable or necessary. As such, any argument with respect to Department of Transp. has been waived. The Zimbelmans concede that Mr. Thrash is the only party who took depositions and that the award of costs was related to the expense incurred by the Zimbelmans in copying these depositions. As they were Mr. Thrash's depositions, he is in no position to argue that they were unnecessary, and we are unable to conclude that the Zimbelmans' copying expenses were unreasonable. This assignment of error is overruled.

    Affirmed in part; vacated in part.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***