Peek v. Watson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
 -2-
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.
 -3-
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.
 -4-
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
 -5-
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.
 -6-
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.
 -7-
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
 -8-
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
 -9-
(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)
 -10-
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.”).
 -11-
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
 -12-
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).
 -13-
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
 -14-
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
 -15-
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.
 -16-
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).