An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-797
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
GERRY THOMAS PEEK
Plaintiff
v. Chatham County
No. 11 CVS 482
JAMES MICHAEL WATSON and
KELLY M. WATSON
Defendants.
Appeal by defendants from judgment entered 26 November 2012
by Judge Elaine M. Bushfan in Chatham County Superior Court.
Heard in the Court of Appeals 12 December 2013.
Nichols & Satterfield, PLLC, by Daron D. Satterfield, for
plaintiff-appellee.
Gunn & Messick, LLP, by Paul S. Messick, Jr., for
defendants-appellants.
HUNTER, JR., Robert N., Judge.
Defendants James Michael Watson (“James Michael”) and his
cousin Kelly M. Watson (“Kelly”) (collectively “Defendants”)
appeal from the trial court’s decision to deny their motion for
directed verdict and their motion for judgment notwithstanding
the verdict (“JNOV”). Defendants made these motions on Gerry
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Peek’s (“Mr. Peek”) malicious prosecution claim against
Defendants. Based on our review of the evidence, we find no
error.
I. Facts & Procedural History
The evidence presented at trial tended to show the
following. Mr. Peek manages a cattle farm off of Bear Creek
Church Road in Chatham County on behalf of a trust. The farm
borders property previously owned by defendant James Michael’s
father, James Franklin Watson (“James Franklin”). Mr. Peek
enjoyed a longstanding business and personal relationship with
James Franklin. As James Franklin’s health declined, Mr. Peek
and James Franklin’s brother Aubrey Clyde Watson (“Clyde”)
performed the physical labor on both Mr. Peek and James
Franklin’s farms, while James Franklin managed his own farm’s
administrative duties. Mr. Peek maintained that the close
relationship between Clyde, James Franklin, and himself led to
the parties openly sharing farm equipment for as long as five
years. After James Franklin’s death in November 2007, James
Michael administered his father’s estate and assumed ownership
of the farm.
The trust owned a driveway and Mr. Peek allowed James
Franklin, and later James Michael, to use the driveway.
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Disputes over the driveway began after James Michael took
ownership. Mr. Peek said James Michael invited friends onto his
land to shoot firearms and they passed through the shared
driveway. Mr. Peek stated James Michael left the driveway gate
open, creating a possibility that Mr. Peek’s cattle would
escape. Mr. Peek denied James Michael access to the driveway,
and litigation ensued. Eventually, James Michael purchased land
and constructed a separate driveway at his own expense.
After the driveway dispute, Mr. Peek and his home were
searched pursuant to a search warrant in May 2008. Chatham
County Deputy Sheriff Daniel Tilley (“Dep. Tilley”) requested
and received authorization for the search warrant, which
concerned four pieces of farming equipment. The search warrant
application was accompanied by an affidavit from Kelly stating
that he helped James Michael inventory farm equipment from James
Franklin’s estate, that the two developed a list of missing
equipment, and that the equipment was last seen on Mr. Peek’s
property.
Mr. Peek was arrested after Dep. Tilley’s search revealed
the listed equipment; he was later released on bond. All of the
parties stipulated that the criminal case against Mr. Peek was
terminated in his favor.
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On 25 May 2011 Mr. Peek filed a civil complaint against
both Defendants for malicious prosecution resulting from the
above criminal action. Defendants moved for summary judgment on
22 February 2012. Superior Court Judge Allen Baddour entered an
order on 2 April 2013 denying summary judgment on Mr. Peek’s
claim for malicious prosecution based on these events. A jury
trial resolved factual disputes arising from the complaint on 5
November 2012.
At the jury trial, Mr. Peek testified and identified
several photographic exhibits of the farm equipment at issue in
his criminal prosecution, which included an auger, a bush hog, a
log splitter, and two power generators. These items were
purchased by James Franklin, but were shared freely between
James Franklin, Clyde, and Mr. Peek to perform their farming
tasks. Mr. Peek said he never received a letter or
communication from James Michael or Kelly about the equipment,
which he had shared with James Franklin over a period of years.
Mr. Peek was 52-years-old when arrested. Mr. Peek felt his name
was besmirched as a result of being arrested, and that the
arrest interfered with his work, caused monetary losses, and
caused him to lose sleep.1
1
Mr. Peek also called his girlfriend Kimberly Rollick to
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On cross-examination of Mr. Peek, Defendants’ counsel
attempted to introduce Defendant’s Exhibit 3 into evidence. The
jury left the courtroom and counsel discussed this evidence.
Exhibit 3 was a pro se filed “Specific Affidavit of Negative
Averment” lawsuit filed against several public officials
involved in prosecuting the criminal case. Mr. Peek objected to
introduction of Exhibit 3 because it was irrelevant and more
prejudicial than probative. The court reviewed the document and
denied admission due to the possibility that the evidence would
confuse the issues, create unfair prejudice, and that “those
risks substantially outweigh the probative value” of the
evidence. Defendants’ Exhibit 4, which granted the Defendants’
Motion to Dismiss Mr. Peek’s “Specific Affidavit of Negative
Averment” was admitted into evidence, and Mr. Peek was cross-
examined about the lawsuit contained in Exhibit 3 by Defendants’
counsel.
Dep. Tilley also received multiple communications from
James Michael advising him in how to execute the search warrant
against Mr. Peek. At trial, Dep. Tilley read aloud an e-mail
testify. She averred that the arrest caused Mr. Peek anguish,
that Mr. Peek “has eaten, drank, and slept all of this,” and
that he lost friendships due to the arrest.
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from James Michael typical of their correspondence. The e-mail
read:
Also when you are ready to approach Peek
with a [arrest warrant] . . . [l]et me know
and I can give you a key to the main gate.
Like we talked about, you can set up and
wait for him to come out. I would suggest
waiting him out because my cop sense tells
me he has the potential to freak out if a
bunch of police approach him at home.
. . . .
I know he has guns because he makes a point
of firing them when I come down to the farm.
. . . Clyde Watson has a loaded .38 revolver
in his glove box.
. . . .
Again, be careful with Peek as well as Mr.
Clyde Watson. They may be lambs or lions.
They may have already disposed of my
property, but the potential for violence
really exists with them, especially Peek.
Both are anti-government, common law
citizens and probably will not recognize
your authority.
Defendants told Dep. Tilley that Mr. Peek had fired fully
automatic weapons on the property. As a result, Dep. Tilley was
concerned for his safety in executing the search warrant and
enlisted the assistance of seventeen SWAT team officers to
execute the search warrant. Upon executing the warrant, Mr.
Peek was not belligerent, and the search uncovered no illegal
weapons.
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James Michael told Dep. Tilley that Mr. Peek denied having
any of James Michael’s property. James Michael did not tell
Dep. Tilley there was a property sharing relationship and that
Mr. Peek possessed the property in question for a number of
years. James Michael spoke with Mr. Peek on several occasions
about the missing equipment. James Michael said Mr. Peek
represented that he did not have any of James Franklin’s
property and that James Franklin did not owe Mr. Peek any money.
Mr. Peek rested his case, and Defendants moved for a directed
verdict pursuant to Rule 50. Mr. Peek objected, arguing there
was sufficient evidence to be heard by the jury. The trial
court denied Defendants’ motions.
Defendants called Dolores Watson (“Dolores”), James
Michael’s wife. Dolores was present during a conversation
between James Michael and Mr. Peek where Mr. Peek denied having
any of James Franklin’s property. Dolores described the visit
as cordial. Defendants rested.
Both parties presented closing arguments and the trial
court gave jury instructions. Thereafter, the jury found in
favor of Mr. Peek and awarded him $20,000 from each defendant.
After the jury was excused, Defendants moved for a JNOV, arguing
the verdict was contrary to the weight of the evidence, there
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was not evidence of actual damages in the case, and the judgment
amount was excessive. The trial court denied Defendants’
motion. On 26 November 2012 Judge Elaine Bushfan entered a
judgment in favor of Mr. Peek. Written notice of appeal was
filed by Defendants on 11 December 2012.
II. Jurisdiction & Standard of Review
The judgment entered upon a jury verdict is a final
judgment. Thus, this Court has jurisdiction to review the
matter pursuant to N.C. Gen. Stat. § 7A–27(b) (2013).
The first issue is whether the trial court erred in denying
Defendants’ motion for a directed verdict and Defendants’ motion
for JNOV. Both the motion for directed verdict and the motion
for JNOV on the malicious prosecution claim are reviewed under a
sufficiency of the evidence standard: “On appeal our standard of
review for a judgment notwithstanding the verdict is the same as
that for a directed verdict; that is, whether the evidence was
sufficient to go to the jury.” Whitaker v. Akers, 137 N.C. App.
274, 277, 527 S.E.2d 721, 724 (2000) (citation and quotation
marks omitted). This Court must view the evidence in the light
most favorable to the non-movant, and the non-movant is entitled
to every reasonable inference therefrom. Papadopoulos v. State
Capital Ins. Co., 183 N.C. App. 258, 262, 644 S.E.2d 256, 259
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(2007). Any conflicts or inconsistencies apparent in the
evidence must be construed in favor of the non-movant. Jernigan
v. Herring, 179 N.C. App. 390, 392, 633 S.E.2d 874, 877 (2006);
Cannon v. Day, 165 N.C. App. 302, 306, 598 S.E.2d 207, 211
(2004).
The second issue is whether the trial court erred in
barring Defendants from introducing Exhibit 3 into evidence.
“We review a trial court’s decision to exclude evidence under
Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C.
156, 160, 655 S.E.2d 388, 390 (2008). “Abuse of discretion
results where the court’s ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result
of a reasoned decision.” State v. Trull, 349 N.C. 428, 445, 509
S.E.2d 178, 190 (1998) (citation and quotation marks omitted).
III. Analysis
A. Motion for Directed Verdict and JNOV
Defendants argue the trial court erred by denying their
motion for directed verdict at the close of Mr. Peek’s evidence
and their motion for JNOV at the close of the trial. We
disagree.
“In order to support a malicious prosecution claim,
plaintiff must establish the following four elements: ‘(1)
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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.’” Martin v.
Parker, 150 N.C. App. 179, 182, 563 S.E.2d 216, 218 (2002)
(quoting Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506,
510 (1994)).
Defendants only argue Mr. Peek failed to establish the
2
first and third elements at trial. Defendants first argue they
did not initiate prosecution of Mr. Peek. Defendants argue they
simply reported stolen property and assisted law enforcement by
confirming its location on Mr. Peek’s property. We disagree.
The first element of a malicious prosecution claim, that
defendant initiated the prosecution, is not met if the defendant
simply “[gave] honest assistance and information to prosecuting
authorities.” Williams v. Kuppenheimer Mfg. Co., 105 N.C. App.
2
Defendants stipulated to the fourth element and do not argue
that Mr. Peek failed to prove malice by Defendants in seeking
prosecution. “Malice in a malicious prosecution claim may be
shown by offering evidence that defendant was motivated by
personal spite and a desire for revenge or that defendant acted
with reckless and wanton disregard for plaintiffs’ rights.”
Becker v. Pierce, 168 N.C. App. 671, 676, 608 S.E.2d 825, 829
(2005) (citation and quotation marks omitted). As Defendants do
not raise this issue, we do not address it further. Viar v.
N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005) (“It is not the role of the appellate courts, however, to
create an appeal for an appellant.”).
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198, 201, 412 S.E.2d. 897, 900 (1992). In Kuppenheimer, the
defendant provided law enforcement officers with the
documentation used to effectuate an arrest, and the trial court
ultimately found that were it not for the defendant’s efforts,
there would not likely have been a prosecution of the plaintiff.
Id. Thus, the trial court in Kuppenheimer found that whether
the defendant initiated a prosecution against the defendant was
properly a matter for the jury. Id.
Here, Mr. Peek presented ample evidence of the first
element. Defendants initially provided Dep. Tilley with
information that four items of property were missing.
Defendants told Dep. Tilley they believed Mr. Peek took the
equipment. James Michael stated that Mr. Peek denied having any
of James Franklin’s property. James Michael instructed Dep.
Tilley to “use caution” when interacting with Mr. Peek. James
Michael described Mr. Peek and Clyde as dangerous and described
the sounds of automatic rifles being fired on Mr. Peek’s
property. James Michael offered to provide keys to the gate to
gain access to Mr. Peek’s property. James Michael advised Dep.
Tilley to execute the search warrant by waiting for Mr. Peek to
come out of his home “[l]ike we talked about,” and neglected to
tell Dep. Tilley at any point of the investigation that James
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Franklin, Clyde, and Mr. Peek often shared farm equipment for
long periods of time without incident. The foregoing is
sufficient evidence of the first element.
Defendants next argue Mr. Peek did not produce sufficient
evidence showing Defendants lacked probable cause to seek
prosecution of Mr. Peek. “The test for determining probable
cause is whether a man of ordinary prudence and intelligence
under the circumstances would have known that the charge had no
reasonable foundation.” Strickland v. Hedrick, 194 N.C. App. 1,
17, 669 S.E.2d 61, 71 (2008) (citations and quotation marks
omitted). “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.” Best, 337 N.C. at 750, 448 S.E.2d at
510 (citations, alterations, and quotation marks omitted). “The
critical time for determining whether or not probable cause
existed is when the prosecution begins.” Strickland, 194 N.C.
App. at 17, 669 S.E.2d at 71 (quotation marks and citation
omitted). “Moreover, in an action for malicious prosecution,
the acquittal of defendant by a court of competent jurisdiction
does not make out a prima facie case of want of probable cause.”
Fowle v. Fowle, 263 N.C. 724, 729, 140 S.E.2d 398, 402 (1965).
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Defendants cite Best in support of their assertion. The
comparison is inapposite. In Best, a detective saw Mr. Best
“acting suspiciously” around the Duke University Faculty Club
early in the morning. 337 N.C. at 750, 448 S.E.2d. at 510. Mr.
Best drove his vehicle off the main road and onto the Duke
Faculty Club driveway, turned off the headlights, and moved
closer to the hotel. Id. When the detective attempted to stop
Mr. Best, Mr. Best “sped” away from the detective’s vehicle and
began a chase on the Duke campus. Id. at 750, 448 S.E.2d at
510–11. When Mr. Best stopped his vehicle, wrought-iron
furniture was found in his vehicle. Id. at 750, 448 S.E.2d at
511. Another officer at the scene checked the Duke Faculty Club
that evening and, finding no evidence of furniture missing,
released the defendant. Id. at 746, 448 S.E.2d at 508.
The next morning, officers learned wrought-iron furniture
was indeed stolen from the Duke Faculty Club and initiated a
prosecution of Mr. Best. Id. The Court found these
“uncontroverted facts fully established that a reasonable person
would be induced thereby to commence a prosecution against” Mr.
Best. Id. at 751, 448 S.E.2d at 511. The prosecuting officer
in Best had no prior knowledge concerning Mr. Best or his
intentions, nor did his initiation of a prosecution result from
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anything other than the observation of an individual located
near where property was reported missing holding similar
property.
By contrast, here Mr. Peek provided evidence that civilian
Defendants initiated the action against Mr. Peek. Mr. Peek
presented evidence showing Defendants knew James Franklin and
Mr. Peek often shared property. Mr. Peek presented evidence
that Mr. Peek and Defendants had few interactions concerning Mr.
Peek’s possession of James Franklin’s property and that
Defendants never requested that Mr. Peek return the four items
specifically prior to initiating prosecution of Mr. Peek.
After review of the foregoing facts, we hold Mr. Peek
introduced sufficient evidence of Defendants’ lack of probable
cause, satisfying the third element. As sufficient evidence was
presented, the trial court not err in denying both the motion
for directed verdict and the motion for JNOV.3
3
Defendants also argue that “[t]he evidence in this case
regarding damages is non-existent.” Defendants do not cite any
authority for this proposition in their brief. This Court will
not “create an appeal for an appellant,” Viar, 359 N.C. at 402,
610 S.E.2d at 361.
Regardless, Defendants’ argument is without merit. See Raymond
U v. Duke Univ., 91 N.C. App. 171, 177, 371 S.E.2d 701, 706
(1988) (“To recover for malicious prosecution based on all types
of actions, the plaintiff must show that the defendant initiated
the earlier proceeding, that he did so maliciously and without
probable cause, and that the earlier proceeding terminated in
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B. Subsequent Lawsuit Exclusion
“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” N.C. R. Evid.
403. The “[a]pplication of the Rule 403 balancing test remains
entirely within the inherent authority of the trial court.”
Warren v. Jackson, 125 N.C. App. 96, 98, 479 S.E.2d 278, 280,
disc. review denied, 345 N.C. 760, 485 S.E.2d 310 (1997).4
We hold the trial court acted within its discretion in
denying admission of Exhibit 3 for “confusion of the issues” and
“unfair prejudice.” The “specific averment” was filed seven
months after the criminal prosecution of Mr. Peek and was not
timely. Further, Defendants cross-examined Plaintiff using
the plaintiff’s favor. Additionally, in malicious prosecution
cases based on underlying civil actions, the plaintiff must
prove special damages.” (internal citation omitted) (emphasis
added)).
4
We note that the trial court may admit evidence of earlier or
subsequent proceedings in this civil case, but the proceedings
may be barred if irrelevant or if they otherwise violate Rule
403. Hummer v. Pulley, Watson, King & Lischer, P.A., 157 N.C.
App. 60, 68, 577 S.E.2d 918, 924 (2003). In Hummer, evidence of
the prior proceeding was allowed because it was used to
substantiate the elements of a claim in the case. Id. Thus, in
Hummer, the prior proceedings were relevant to the case at bar
and would not confuse the underlying issues at hand. No such
relevant purpose is present here.
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Exhibit 4, which was admitted, which described Exhibit 3 as
“frivolous,” and which required Plaintiff to pay $1,300 in fees
for initiating the earlier lawsuit. The jury heard that
Plaintiff’s suit was dismissed, meaning the jury made its
decision with full knowledge that Plaintiff had previously
raised a lawsuit and that the lawsuit was dismissed, so
Defendants’ impeachment purpose was not affected. Thus, the
trial court’s ruling was not an abuse of discretion.
IV. Conclusion
For the reasons stated above, we find
NO ERROR.
Judges STROUD and DILLON concur.
Report per Rule 30(e).