Appeal by defendant from a judgment and order entered 14
November 2005 and 9 December 2005, respectively, by Judge W.Douglas Albright in Guilford County Superior Court. Heard in the
Court of Appeals 10 January 2007.
Carruthers & Roth, P.A., by Kenneth R. Keller and William J.
McMahon, IV, for plaintiff-appellee.
Smith Moore, LLP, by James G. Exum, Jr. and Allison O. Van
Laningham, for defendant-appellant.
Burgerbusters, Inc. (defendant) appeals from a judgment
entered 14 November 2005, consistent with a jury verdict finding
defendant liable to Hung Nguyen (plaintiff) for malicious
prosecution and awarding damages in the amount of $200,000.
Defendant also appeals from an order entered 9 December 2005
denying its motion for judgment notwithstanding the verdict or, in
the alternative, for a new trial. We find defendant received a
trial free from error and affirm the judgment and order of the
Plaintiff was an employee of defendant, working as a General
Manager of one of defendant's Taco Bell franchise restaurants.
Plaintiff's wife was also an employee of defendant, working in the
store plaintiff managed. In October 2000, Christakis Paphites,
defendant's President and Chief Operating Officer, received a
letter via facsimile alleging plaintiff was adding hours to his
wife's time records above and beyond what she was actually working.
Paphites instituted an investigation into these allegations whichwas led by Gayle White, the District Manager over the restaurants
in which plaintiff and his wife worked.
Based on information provided by White and an interview with
plaintiff by White and Joe Mangano, defendant's Vice President for
Operations, defendant fired plaintiff. Defendant subsequently
provided information to Detective Glenn Knight, a fraud/financial
crimes investigator for the Greensboro Police Department, alleging
that plaintiff had caused defendant to pay $25,000 to a nominal
employee who did not work for the company. From the information
provided by defendant, the Guilford County District Attorney's
Office obtained an indictment against plaintiff on the charge of
embezzling $25,000 from defendant. However, after further
investigation into the criminal charge by the Assistant District
Attorney (ADA) handling the case, it was determined that there was
insufficient evidence to prosecute plaintiff and the charge of
embezzlement was dismissed.
On 13 September 2004, plaintiff filed a complaint against
defendant seeking compensatory and punitive damages for malicious
prosecution and abuse of process. Defendant filed its answer on 15
November 2004. This matter was tried before a jury beginning on 31
October 2005. During the trial, defendant made a motion for a
directed verdict, which was granted in part on the claim of abuse
of process and as to the issue of punitive damages. The jury
returned a verdict on 3 November 2005 finding defendant liable to
plaintiff and awarding damages of $200,000. The trial courtsubsequently entered a judgment for plaintiff consistent with the
jury verdict. On 14 November 2005, the trial court entered amended
judgment on the verdict, correcting the name of the defendant
against whom judgment was entered. Defendant filed a motion for
judgment notwithstanding the verdict (JNOV) or in the alternative
for a new trial on 17 November 2005. Defendant's motion was denied
by order entered 9 December 2005. Defendant appeals.
Defendant raises the issues of whether: (I) the trial court
erred in denying defendant's motion for judgment notwithstanding
the verdict because plaintiff failed to prove malicious
prosecution; (II) the action should be dismissed because plaintiff
did not introduce into evidence the warrant or indictment at trial;
and (III) whether the trial court erred in denying defendant's
motion for a new trial.
 Defendant first argues the trial court erred in denying
its motion for judgment notwithstanding the verdict because
plaintiff failed to prove malicious prosecution. 'When
determining the correctness of the denial [of a motion] for
directed verdict or judgment notwithstanding the verdict, the
question is whether there is sufficient evidence to sustain a jury
verdict in the non-moving party's favor, or to present a question
for the jury.' Arndt v. First Union Nat'l Bank
, 170 N.C. App.
518, 522, 613 S.E.2d 274, 277-78 (2005) (quoting Davis v. Dennis
, 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991)). Toprove a claim for malicious prosecution, a plaintiff must establish
four elements: '(1) the defendant initiated the earlier
proceeding; (2) malice on the part of the 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.' Beroth Oil Co. v. Whiteheart
, 173 N.C. App.
89, 99, 618 S.E.2d 739, 746 (2005) (quoting Best v. Duke Univ.
N.C. 742, 749, 448 S.E.2d 506, 510 (1994)), appeal dismissed, disc.
, 360 N.C. 531, 633 S.E.2d 674 (2006). Defendant
contends plaintiff failed to meet his burden of proof on any of
these four elements. For the reasons below we find plaintiff
presented sufficient evidence to sustain a jury verdict in his
favor and overrule this assignment of error.
Defendant's Initiation of Earlier Proceeding
It is well established that the act of giving honest
assistance and information to prosecuting authorities does not
render one liable for malicious prosecution. Williams v.
Kuppenheimer Mfg. Co.
, 105 N.C. App. 198, 201, 412 S.E.2d 897, 900
(1992); see also Harris v. Barham
, 35 N.C. App. 13, 16, 239 S.E.2d
717, 719 (1978) ([I]t cannot be said that one who reports
suspicious circumstances to the authorities thereby makes himself
responsible for their subsequent action, . . . even when . . . the
suspected persons are able to establish their innocence.).
However, where 'it is unlikely there would have been a criminal
prosecution of [a] plaintiff' except for the efforts of a
defendant, this Court has held a genuine issue of fact existed andthe jury should consider the facts comprising the first element of
malicious prosecution. Becker v. Pierce
, 168 N.C. App. 671, 675,
608 S.E.2d 825, 829 (2005) (quoting Williams
, 105 N.C. App. at 201,
412 S.E.2d at 900).
Viewing the evidence of record before this Court in the light
most favorable to the nonmovant, plaintiff has met his burden with
respect to this element. As in Becker
provided all of the information upon which the arrest warrant,
indictment, and initial prosecution were all based. Defendant's
agents contacted the police and presented information tending to
show that plaintiff's wife was not an employee of defendant.
Without the initial contact from defendant, it is unlikely there
would have been a criminal prosecution of plaintiff. Thus, a
genuine issue of fact existed as to whether defendant initiated the
criminal proceeding and the trial court properly submitted this
issue to the jury.
Defendant's Lack of Probable Cause
Regarding a claim for malicious prosecution,
probable cause . . . has been properly defined
as the existence of such facts and
circumstances, known to the defendant at the
time, as would induce a reasonable man to
commence a prosecution. 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.
, 337 N.C. at 750, 448 S.E.2d at 511 (internal citations and
quotations omitted). However, '[w]hen the facts are in dispute
the question of probable cause is one of fact for the jury.' Martin v. Parker
, 150 N.C. App. 179, 182, 563 S.E.2d 216, 218
(2002) (quoting Pitts v. Village Inn Pizza, Inc.
, 296 N.C. 81, 87,
249 S.E.2d 375, 379 (1978)).
Here, the evidence establishes plaintiff's wife was an
employee of defendant. Further, plaintiff produced evidence that
under an agreement with White, plaintiff was permitted to charge
his time working at a second restaurant to his wife. Plaintiff
disclosed to Mangano his agreement with White prior to defendant's
contact with the police. However, defendant chose to rely on
White's investigation and assertions to substantiate its
allegations of embezzlement by plaintiff.
Defendant's allegations of embezzlement were based upon its
belief that plaintiff's wife was not an employee of defendant. At
trial, White admitted she informed the police that [plaintiff's
wife] was not an employee and had never worked at the premises.
Given defendant's position as the actual employer of both plaintiff
and his wife, defendant was in the best position to determine
whether plaintiff's wife was or was not one of its employees.
Instead, defendant presented information to the police alleging
plaintiff's wife was not an employee and that plaintiff was
embezzling money from defendant by paying her wages. Viewing the
evidence in the light most favorable to plaintiff, the trial court
properly submitted to the jury the issue of whether defendant
lacked probable cause to commence a prosecution because plaintiff
had been given permission by one of defendant's agents to charge
his time to his wife.
Malice on the Part of Defendant
In an action for malicious prosecution, the malice element
may be satisfied by a showing of either actual or implied malice.
, 173 N.C. App. at 99, 618 S.E.2d at 746 (citation
omitted). Implied malice . . . may be inferred from want of
probable cause in reckless disregard of the plaintiff's rights.
; see also Williams
, 105 N.C. App. at 203, 412 S.E.2d at 901
(It is well settled that legal malice may be inferred from a lack
of probable cause.). Thus, the same evidence supporting the trial
court's submission of the element of lack of probable cause to the
jury also supports the submission of the issue regarding malice on
the part of defendant in initiating embezzlement charges against
Termination of Earlier Proceeding in Plaintiff's Favor
[A] plaintiff in a malicious prosecution case has shown a
favorable termination of a criminal proceeding when he shows that
the prosecutor voluntarily dismissed the charges against him.
Jones v. Gwynne
, 312 N.C. 393, 400, 323 S.E.2d 9, 13 (1984)
(citation omitted). Further, our Courts have held that
[t]he essential thing is that the prosecution
on which the action for damages is based
should have come to an end. How it came to an
end is not important to the party injured, for
whether it ended in a verdict in his favor, or
was quashed, or a [nolle prosequi
entered, he has been disgraced, imprisoned and
put to expense, and the difference in the
cases is one of degree, affecting the amount
Ordinarily the termination of the proceeding
must result in a discharge of the plaintiff sothat new process must issue in order to revive
the proceeding against him.
(internal citations and quotations omitted).
Here, the assistant district attorney prosecuting the
underlying criminal case against plaintiff dismissed the criminal
charges against plaintiff. At trial, the ADA testified that he
dismissed the charges against plaintiff only after personally
interviewing two witnesses who produced evidence undercutting the
theory of his case. Thus, plaintiff has presented sufficient
evidence to establish the final element of his claim for malicious
(holding once the plaintiff presented evidence
in this case that the assistant district attorney had voluntarily
dismissed the embezzlement charges against him, he had shown a
termination of the criminal proceedings favorable to him); see
also Taylor v. Hodge
, 229 N.C. 558, 560, 50 S.E.2d 307, 308 (1948)
(Favorable termination of criminal action against the plaintiff is
sufficiently shown by nolle prosequi
in the Superior Court.).
 Defendant next argues [t]he action should be dismissed
for failure to introduce into evidence the warrant or indictment.
In the assignment of error defendant brings forward as the basis of
this argument, defendant states: The trial court's denial of
Defendant's Motions for Directed Verdict and Motion for Judgment
Notwithstanding the Verdict on the ground that neither the warrant
nor the indictment against Plaintiff that formed the basis for his
malicious prosecution claim were offered into evidence. However,
in its argument to this Court, defendant does not address the trialcourt's denial of its motions for directed verdict or motion for
judgment notwithstanding the verdict. Rather, defendant argues
plaintiff's claim for malicious prosecution should be dismissed
This argument does not comport with defendant's assignment of error
and we deem this assignment of error abandoned. N.C. R. App. P.
28(a) (Questions raised by assignments of error in appeals from
trial tribunals but not then presented and discussed in a party's
brief, are deemed abandoned.); N.C. R. App. P. 28(b)(6)
(Assignments of error . . . in support of which no reason or
argument is stated or authority cited, will be taken as
 Defendant next argues the trial court erred in denying
defendant's motion for a new trial. Defendant presents four
arguments as to why the trial court erred in denying its motion for
a new trial: (1) plaintiff failed to produce sufficient evidence
to satisfy the four elements of malicious prosecution; (2) the jury
was allowed to consider improper evidence; (3) the jury manifestly
disregarded the instructions of the trial court; and (4) the
verdict reflects excessive damages.
It is well established that '[a] trial judge's discretionary
order made pursuant to Rule 59 for or against a new trial may be
reversed only when an abuse of discretion is clearly shown.' City
of Charlotte v. Ertel
, 170 N.C. App. 346, 353, 612 S.E.2d 438, 444
(2005) (quoting Hanna v. Brady
, 73 N.C. App. 521, 525, 327 S.E.2d
22, 24 (1985)). A trial court may be reversed for abuse ofdiscretion only upon a showing that its actions are manifestly
unsupported by reason. Davis v. Davis
, 360 N.C. 518, 523, 631
S.E.2d 114, 118 (2006) (citation and internal quotations omitted).
Furthermore, [a]n appellate court should not disturb a
discretionary Rule 59 order unless it is reasonably convinced by
the cold record that the trial judge's ruling probably amounted to
a substantial miscarriage of justice. In re Will of Buck
N.C. 621, 625, 516 S.E.2d 858, 861 (1999) (citation and quotations
Evidence of Elements of Malicious Prosecution
Defendant first argues the trial court erred in denying its
motion for a new trial because plaintiff did not present sufficient
evidence to establish malicious prosecution. However, a review of
the record evidence before this Court shows that while defendant
presented evidence in support of its position, plaintiff's evidence
was sufficient to support the jury verdict. See
Issue I, supra
The jury verdict is not contrary to the greater weight of the
evidence nor contrary to law, and defendant has not shown that the
trial court abused its discretion in denying defendant's motion for
a new trial. This assignment of error is overruled.
Admission of Prejudicial Hearsay Evidence
Defendant next argues it is entitled to a new trial because
the trial court admitted a letter which was inadmissible hearsay
and highly prejudicial. However, defendant did not obtain a ruling
as to the admissibility of this evidence at trial. When it became
evident that the letter had been written for plaintiff by a thirdparty, defendant brought this matter to the attention of the trial
court, but never actually argued the letter should be excluded from
evidence. At the close of the discussion between defendant's trial
attorney and the trial court, the court stated, But at this point,
it's sort of in the record, without objection. Defendant's
attorney did not attempt to argue an objection, but merely said,
Thank you, Your Honor. From the record before this Court, it is
questionable whether defendant properly objected to the
admissibility of the letter when it was discovered that the letter
was actually written by someone other than plaintiff. It is clear,
however, that defendant never received a ruling on any objection or
motion concerning the admissibility of the letter and thus this
question is not properly before this Court. N.C. R. App. P.
10(b)(1) (In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, . . . [and] obtain a ruling upon the party's
request, objection or motion.) This assignment of error is
Jury's Disregard of Instructions
Defendant also argues it is entitled to a new trial because
the jury manifestly disregarded the trial court's instructions.
Defendant contends that because of the uncontroverted facts
concerning the element of probable cause for plaintiff's claim for
malicious prosecution, the jury's verdict can only be explained by
manifest disregard of the trial court's instructions. In light of
the reasons stated in Issue I, supra
, we find that plaintiffpresented sufficient evidence to meet his burden of proof as to the
element of probable cause. While defendant presented evidence
tending to show it had probable cause to initiate the prior
proceedings, plaintiff presented evidence to the contrary. It is
the jury's function to weigh the evidence and to determine the
credibility of witnesses. Suarez v. Wotring
, 155 N.C. App. 20,
34, 573 S.E.2d 746, 755 (2002), cert. denied, disc. rev. denied
357 N.C. 66, 579 S.E.2d 107 (2003). Thus the jury could have
returned a verdict in favor of plaintiff without disregarding the
trial court's instructions. This assignment of error is overruled.
Defendant lastly argues the jury's damage award was excessive
and justifies a new trial. However, defendant has not cited any
authority in support of this assignment of error and we deem it
N.C. R. App. P. 28(b)(6) (Assignments of error .
. . in support of which no . . . authority [is] cited, will be
taken as abandoned.); Viar v. N.C. Dep't of Transp.
, 359 N.C.
400, 402, 610 S.E.2d 360, 361 (It is not the role of the appellate
courts . . . to create an appeal for an appellant.), reh'g denied
359 N.C. 643, 617 S.E.2d 662 (2005).
No error at trial; the Judgment and Order of the trial court
Judges McGEE and ELMORE concur.
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