Hawkins v. Webster
| Decision Date | 31 December 1985 |
| Docket Number | No. 8521SC331,8521SC331 |
| Citation | 78 N.C.App. 589,337 S.E.2d 682 |
| Court | North Carolina Court of Appeals |
| Parties | Olin D. HAWKINS v. Richard S. WEBSTER and Benny M. Church. |
Wilson, DeGraw, Johnson & Miller by Gordon A. Miller, Winston-Salem, for plaintiff-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard by Howard L. Williams and Jill R. Wilson, Greensboro, for defendant-appellee.
The question before us is whether the trial court properly dismissed plaintiff's claims under Rule 12(b)(6).
The background to the present lawsuit follows. In July 1981, plaintiff Olin Hawkins, past president of United Citizens Bank (hereafter "the Bank") was convicted in federal court of five counts of banking violations, three of which related to Hawkins' allowing defendants Richard Webster and Benny Church to sign notes made payable to a J.R. Richards when Hawkins knew that defendants were signing the notes. In January 1983, the Bank filed two civil lawsuits, in one of which both Webster and Church were named among the defendants, and in the other, Webster was named as defendant. These actions were for amounts allegedly due on notes executed by defendants. Defendants filed answers containing counterclaims stating that defendants had signed the notes at the request and instruction of Hawkins, the bank's agent. The Bank asserted third-party complaints against Hawkins for indemnity on the counterclaims. In the first lawsuit, the claims of all parties were voluntarily dismissed with prejudice. In the second, Hawkins was dropped from the lawsuit by stipulation of the parties, and the trial resulted in a directed verdict against Webster.
In the present action, Hawkins sets forth sixteen causes of action based on malicious prosecution, abuse of process, emotional distress, fraud, outrageous and negligent conduct, unfair and deceptive acts, conspiracy, perjury and invasion of privacy resulting from the earlier criminal and civil proceedings. More particularly, each of the claims is essentially derived from allegations that the defendants knowingly gave false information to the FBI and IRS agents who conducted the investigation that resulted in criminal charges being filed against Hawkins; that defendants gave perjured testimony at Hawkins' criminal trial; and that defendants' answers to the Bank's civil complaints contained information that defendants knew to be false. For the reasons stated below, we hold the trial court properly granted the motion to dismiss, and we affirm.
The essential question on a Rule 12(b)(6) motion is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory. Benton v. Construction Co., 28 N.C.App. 91, 220 S.E.2d 417 (1975). In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). Rule 12(b)(6) generally precludes dismissal except in those instances in which the face of the complaint discloses some insurmountable bar to recovery. Brown v. Brown, 21 N.C.App. 435, 204 S.E.2d 534 (1974). We apply these principles to each of the claims advanced by Hawkins in his complaint.
Hawkins alleges that he suffered damages as a result of his criminal conviction for various illegal banking activities "based on and obtained through the perjured testimony of Defendants Webster and Church." The rule in North Carolina is that "a civil action in tort will not lie for perjury or subornation of perjury." Henry v. Deen, 61 N.C.App. 189, 196, 300 S.E.2d 707, 711 (1983), rev'd on other grounds, 310 N.C. 75, 310 S.E.2d 326 (1984); 1 Accord Gillikin v. Springle, 254 N.C. 240, 118 S.E.2d 611 (1961) (). As the law of this State does not recognize a civil cause of action based on perjury, this claim was properly dismissed.
In his claim based on civil conspiracy, Hawkins alleges that defendants conspired to engage in a series of unlawful bank transactions, conspired to give false information to the FBI and IRS, conspired to commit perjury at Hawkins' criminal trial, and conspired to place false information in their answers to the Bank's civil actions. A civil action may not be maintained for a conspiracy to give false testimony. Henry v. Deen. Furthermore, statements in pleadings filed in a judicial proceeding which are relevant to the subject matter are absolutely privileged. Jones v. City of Greensboro, 51 N.C.App. 571, 584, 277 S.E.2d 562, 571 (1981); Perry v. Perry, 153 N.C. 265, 69 S.E. 130 (1910) (). Thus, there is no legal theory upon which Hawkins might prevail on his claim of civil conspiracy.
In the above claims, Hawkins has simply taken allegations of perjury and relabeled them as recognized causes of action. For example, Hawkins charges that lies and misrepresentations made by the defendants to federal agents and the federal courts caused him "severe emotional distress, disorientation and despair." Since the basis of the foregoing claims is civil perjury, a cause of action North Carolina has expressly declined to recognize, the entry of dismissal as to these claims was proper. Furthermore, in his brief, Hawkins has failed to present and discuss any questions pertaining to fraud, outrageous and negligent conduct, and unfair and deceptive trade practices, as required by Rule 28(a), N.C. Rules of Appellate Procedure. Thus, Hawkins' appeal on those claims is deemed abandoned.
The elements of malicious prosecution, when the claim is based on a civil action, are:
(1) That the defendant initiated an earlier proceeding;
(2) That the defendant did so maliciously and without probable cause;
(3) That the earlier proceeding terminated in the plaintiff's favor;
(4) That there was some element of special damage resulting from the action the gist thereof being substantial interference either with the plaintiff's person or property.
Stanback v. Stanback, 297 N.C. 181, 203, 254 S.E.2d 611, 625 (1979).
In the instant case, there is no allegation that defendants Webster and Church ever initiated a prior action against Hawkins; rather, Hawkins alleges that defendants "procured or caused to be instituted against [him]" the third party indemnity actions filed by the Bank. This does not, in our estimation, satisfy the requirement that the defendant initiate a prior proceeding.
Furthermore, the insufficient allegations of special damages make this claim susceptible to dismissal. The only arguably colorable allegation of special damages...
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...the defendant's "use of process was done in an unauthorized manner, but only that [its] motive was improper"); Hawkins v. Webster, 78 N.C.App. 589, 337 S.E.2d 682, 685 (1985) (holding that the defendant's filing of "answers, which contained falsehoods," was not the type of improper act upon......
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