An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.
NO. COA13-1216
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
JUSTICE, HUGH,
Plaintiff
McDowell County
v.
No. 11-CVS-1014
MAYES, LINDA,
Defendant
Appeal by plaintiff from judgment entered 28 March 2013 by
Judge Gary M. Gavenus in McDowell County Superior Court. Heard
in the Court of Appeals 4 March 2014.
Hugh Justice, pro se.
No appellee brief filed.
ERVIN, Judge.
Plaintiff Hugh Justice appeals from a judgment entered
based upon a jury verdict awarding Plaintiff $3,314.00 in
compensatory damages. On appeal, Plaintiff argues that the
trial court erred by requiring the jury to establish a damage
award based solely upon his claim for malicious prosecution
instead of allowing the jury to award damages based upon claims
for other causes of action, such as defamation, which he
-2-
contends were established by Defendant’s failure to respond to
certain requests for admission. After careful consideration of
Plaintiff’s challenge to the trial court’s judgment in light of
the record and the applicable law, we conclude that the trial
court’s judgment should be affirmed.
I. Factual Background
Plaintiff and Defendant Linda Susan Mayes, a/k/a Linda
Hendrix, a/k/a Linda Mayes McPeters, reside in McDowell County
and live adjacent to each other. On approximately 2 December
2010, Defendant asserted that Plaintiff had grabbed her by the
arm and thrown her in a ditch. Subsequently, Defendant asserted
that Plaintiff had threatened to “cut her throat and burn her
house down with her in it.” Although Defendant procured the
issuance of warrants charging Plaintiff with simple assault and
communicating threats,1 these charges were dismissed by the trial
court when Defendant was unable to prove her accusations.
On 24 November 2011, Plaintiff filed a complaint alleging
that he was entitled to recover damages from Defendant for
1
Although the record before us is not entirely clear with
respect to this issue, we assume that the communicating threats
charge upon which Plaintiff’s claim was based stemmed from
Defendant’s statement that Plaintiff had threatened to cut her
throat and burn down her house.
-3-
malicious prosecution,2 with his damage claim including a request
for an award of $150,000 in compensatory damages and an award of
punitive damages in an amount to be determined by the jury. In
his complaint, Plaintiff alleged that the assault and
communicating threats warrants that Defendant had sworn out
against him lacked any legitimate factual basis and had been
obtained with the intent to harm Plaintiff’s reputation.
On 14 December 2011, Defendant filed an answer in which she
denied the material allegations set out in Plaintiff’s
complaint. On 6 August 2012, Plaintiff served an extensive
request for admissions on Defendant. In view of the fact that
Defendant failed to respond to Plaintiff’s request for
admissions, the factual assertions set out in that discovery
request were deemed to have been judicially admitted.
On 26 October 2012, Plaintiff moved for the entry of
summary judgment in his favor, with this request being based on
Defendant’s failure to respond to his request for admissions.
According to the assertions advanced in Plaintiff’s motion,
Defendant’s admissions established the existence of the showing
required to support a recovery for defamation, private nuisance,
2
In spite of the fact that Plaintiff made reference to a
defamation action in the caption of his complaint, the actual
allegations set out in that pleading, which was filed pro se,
clearly reflect an attempt to allege a claim for malicious
prosecution.
-4-
and intentional infliction of emotional distress. Defendant
neither responded to Plaintiff’s summary judgment motion nor
appeared at the 6 November 2012 hearing held for the purpose of
considering Plaintiff’s motion. On 28 November 2012, Judge
Laura J. Bridges entered an order granting summary judgment in
Defendant’s favor.
As a result of the need for a proper determination of the
amount of damages that Plaintiff was entitled to recover from
Defendant, this case came on for hearing before the trial court
and a jury at the 21 February 2013 civil session of the McDowell
County Superior Court. Once again, Defendant failed to appear.
At trial, Plaintiff unsuccessfully argued that he was entitled
to recover damages on the basis of a number of substantive
claims, such as defamation, in addition to malicious
prosecution. After the presentation of Plaintiff’s evidence and
the delivery of the trial court’s instructions, the jury
returned a verdict awarding Plaintiff $3,314.00 in compensatory
damages and declining to award Plaintiff any punitive damages.3
After the return and acceptance of the jury’s verdict,
Plaintiff filed a motion for new trial pursuant to N.C. Gen.
Stat. § 1A-1, Rule 59. Following a hearing concerning the
3
At trial, Plaintiff presented evidence that he had incurred
$3,314.00 in costs as a result of the fact that Defendant
prosecuted him for assault and communicating threats.
-5-
merits of Plaintiff’s motion held at the 26 March 2013 civil
session of McDowell County Superior Court, the trial court
entered an order denying Plaintiff’s motion for new trial on 26
March 2013 and a judgment ordering that Plaintiff have and
recover $3,314.00 from Defendant on 28 March 2013. Plaintiff
noted an appeal to this Court from the trial court’s judgment.
II. Substantive Legal Analysis
In the sole argument advanced in his brief, Plaintiff
argues that the trial court erred by refusing to allow the jury
to award him damages on the basis of claims other than malicious
prosecution, such as defamation.4 In support of that contention,
Plaintiff argues that Defendant’s failure to respond to his
request for admissions established the validity of claims other
than malicious prosecution and that the trial court should have
allowed the jury to base its damage award on these additional
claims rather than limiting his damage award to one which
compensated him for having been maliciously prosecuted for
assault and communicating threats. Plaintiff’s argument lacks
merit.
A. Standard of Review
4
In his brief, Plaintiff asserts that the admissions to
which Defendant failed to respond established that he had
twenty-six valid claims against Defendant in addition to
malicious prosecution. However, the only specific additional
claim that Plaintiff discusses in his brief is one for
defamation.
-6-
Although the form and number of the issues submitted to the
jury is, as a general proposition, within the sound discretion
of the trial court, Wilson v. Pearce, 105 N.C. App. 107, 112,
412 S.E.2d 148, 150, disc. review denied, 331 N.C. 291, 417
S.E.2d 72 (1992), the trial court is required “to instruct the
jury upon the law with respect to every substantial feature of
the case” that arises upon the evidence. Mosley & Mosley
Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361 S.E.2d
608, 612 (1987), cert. dismissed, 322 N.C. 607, 370 S.E.2d 416
(1988). As a result, “[i]f a party contends that certain acts
or omissions constitute a claim for relief or a defense against
another, the trial court must submit the issues with appropriate
instructions if there is evidence which, when considered in the
light most favorable to the proponent, will support a reasonable
inference of each essential element of the claim or defense
asserted.” Cockrell v. Cromartie Transp. Co., 295 N.C. 444,
449, 245 S.E.2d 497, 500 (1978) (citations omitted). “A
specific jury instruction should be given when ‘(1) the
requested instruction was a correct statement of law and (2) was
supported by the evidence, and that (3) the instruction given,
considered in its entirety, failed to encompass the substance of
the law requested[,] and (4) such failure likely misled the
jury.’” Outlaw v. Johnson, 190 N.C. App. 233, 243, 660 S.E.2d
-7-
550, 559 (2008) (quoting Liborio v. King, 150 N.C. App. 531,
534, 564 S.E.2d 272, 274, disc. review denied, 356 N.C. 304, 570
S.E.2d 726 (2002)). On the other hand, “when the issues
submitted cover the factual matters disputed under the pleadings
and enable the parties to fairly present their contentions in
regard to them it is not error to refuse to submit other
issues.” Nolen Concrete Supply, Inc. v. Buchanan, 78 N.C. App.
409, 411, 337 S.E.2d 129, 130 (1985). We review challenges to
the legal correctness of a trial court’s jury instructions using
a de novo standard of review. State v. Osorio, 196 N.C. App.
458, 466, 675 S.E.2d 144, 149 (2009).
B. Validity of Trial Court’s Instructions
1. Relevant Legal Principles
“The most fundamental tenet of modern pleading rules is
that the pleadings should give ‘sufficient notice of the claim
asserted to enable the adverse party to answer and prepare for
trial . . . and to show the type of case brought.’” Holloway v.
Wachovia Bank & Trust Co., N.A., 339 N.C. 338, 347, 452 S.E.2d
233, 238 (1994) (quoting Sutton v. Duke, 277 N.C. 94, 102, 176
S.E.2d 161, 165 (1970) (internal quotation omitted)). “‘A
plaintiff must make out his case secundum allegata,’” so that
“‘[t]here can be no recovery except on [a] case made by [the]
pleadings,’” with “‘[p]roof without allegation [being] no better
-8-
than allegation without proof.’” Moody v. Kersey, 270 N.C. 614,
618, 155 S.E.2d 215, 218 (1967) (quoting Andrews v. Bruton, 242
N.C. 93, 95, 86 S.E.2d 786, 788 (1955)). As a result, in most
instances, the trial court’s judgments must be based upon issues
raised in the party’s pleadings and supported by sufficient
record evidence.
In recognition of the fact that he failed to allege any
substantive claim in his complaint other than malicious
prosecution, Plaintiff argues that the other claims that he
contends that the trial court should have allowed the jury to
consider were properly before the court and jury under a
“litigation by consent” theory. According to that theory, “when
a non-objecting party allows evidence to be presented at trial
outside the scope of the pleadings, the pleadings are deemed
amended to conform to the evidence, and no formal amendment is
required.” McDevitt v. Stacy, 148 N.C. App. 448, 455, 559
S.E.2d 201, 208 (2002) (citing Roberts v. Memorial Park, 281
N.C. 48, 59, 187 S.E.2d 721, 727 (1972)). As a result, “‘[w]hen
issues not raised by the pleadings are tried by the express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings[,]’” Taylor
v. Gillespie, 66 N.C. App. 302, 304, 311 S.E.2d 362, 364
(quoting N.C. Gen. Stat. § 1A-1, Rule 15(b)), disc. review
-9-
denied, 310 N.C. 748, 315 S.E.2d 710 (1984), since N.C. Gen.
Stat. § 1A-1, Rule 15(b) “allows issues to be raised by liberal
amendments to pleadings, and, in some cases, by the evidence,
the effect of the rule being to allow amendment by implied
consent to change the legal theory of the cause of action so
long as the opposing party has not been prejudiced in presenting
his case, i.e., where he had a fair opportunity to defend his
case.” Id. at 305, 311 S.E.2d at 364. On the other hand, where
“issue[s] purportedly raised by the evidence [are] not tried by
the consent of the parties, it [is] not error for the court to
refuse to amend the pleadings.” Paris v. Michael Kreitz, Jr.,
P.A., 75 N.C. App. 365, 376, 331 S.E.2d 234, 242, disc. review
denied, 315 N.C. 185, 337 S.E.2d 858 (1985).
2. Lack of Litigation by Consent in this Case
The essential argument advanced in Plaintiff’s brief is
that Defendant’s admissions were sufficient to establish several
additional causes of action not set forth in his complaint and
that, given Defendant’s failure to respond to these requests for
admission or to lodge an objection to the consideration of these
additional claims at any other time, Defendant impliedly
consented to the litigation of these additional claims. Based
upon this logic, Plaintiff argues that the trial court was
required to allow the jury to award damages arising from these
-10-
additional claims in addition to the damages arising from his
malicious prosecution claims. Plaintiff’s argument stretches
the concept of an implied amendment to the pleadings past the
breaking point.
As we have already noted, the only claim asserted in
Plaintiff’s complaint was one for malicious prosecution. After
having asserted nothing more than a malicious prosecution claim
in his complaint, Plaintiff sought and obtained the entry of
summary judgment based upon an evidentiary showing consisting of
Defendant’s failure to respond to his requests for admission,
all of which were relevant to aspects of his malicious
prosecution claim. Although Defendant did assert in his summary
judgment motion that he had established the validity of other
claims for relief, he did not seek to amend his complaint at
that time to assert any of the other claims that he mentioned in
that filing. Instead, Plaintiff did not explicitly attempt to
assert these additional claims until after summary judgment had
been granted in his favor, the case had been called for trial on
the sole issue of the amount of damages that he was entitled to
receive based upon his malicious prosecution claim, and
Defendant failed to appear. Under this set of circumstances, we
are unable to say that the issue of whether Plaintiff was
entitled to recover damages from Defendant based upon claims
-11-
other than malicious prosecution was ever really tried by
consent, an event that generally occurs when the parties both
participate in the litigation of the issue in question. Simply
put, having asserted nothing more than a claim for malicious
prosecution in his original complaint and having failed to put
Defendant on notice of his intentions in advance of trial by
seeking leave to amend his complaint to assert the additional
claims, we are unable to accept Plaintiff’s contention that his
attempt to substantially expand the scope of this litigation to
include multiple additional claims that he had never attempted
to assert in his pleadings and that Defendant had never agreed,
explicitly or implicitly, to have heard, amounted to nothing
more than the trial of additional issues by consent as
authorized by N.C. Gen. Stat. § 1A-1, Rule 15(b). As this Court
has previously noted, “‘[d]espite the broad remedial purposes of
this provision, however, [N.C. Gen. Stat. § 1A-1,] Rule 15(b)
does not permit judgment by ambush.’” Paris, 75 N.C. App. at
375, 331 S.E.2d at 242 (quoting Eudy v. Eudy, 288 N.C. 71, 76,
215 S.E.2d 782, 786 (1975), partially overruled on other grounds
by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)). As a
result, given the manner in which Plaintiff attempted to assert
his right to recover damages on the basis of additional claims
never asserted in his pleadings, the absence of any legitimate
-12-
indication that these additional claims were actually litigated
by consent, and the obvious prejudice to Defendant that would
result from acceptance of Plaintiff’s argument, we conclude that
the trial court did not err by failing to instruct the jury that
it was entitled to award damages to Plaintiff on the basis of
the additional theories upon which Plaintiff now seeks to rely.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Plaintiff’s challenge to the trial court’s judgment lacks merit.
As a result, the trial court’s judgment should be, and hereby
is, affirmed.
AFFIRMED.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
Justice v. Mayes
Combined Opinion