An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
THOMAS L. THRASH,
No. 03 CVS 111
NINA PULEO ZIMBELMAN and
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
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
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
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
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
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,
, 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
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).
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