Hewes v. Wolfe, 8427SC749

• Decision Date: 21 May 1985
• Docket Number: No. 8427SC749,8427SC749
• Court: North Carolina Court of Appeals
• Parties: Mr. and Mrs. Charles F. HEWES v. W.B. WOLFE. Mr. and Mrs. Charles F. HEWES v. Hugh W. JOHNSTON.

Page 16

330 S.E.2d 16

74 N.C.App. 610

Mr. and Mrs. Charles F. HEWES v. W.B. WOLFE.

Mr. and Mrs. Charles F. HEWES v. Hugh W. JOHNSTON.

No. 8427SC749.

Court of Appeals of North Carolina.

May 21, 1985.

Parker, Poe, Thompson, Bernstein, Gage & Preston by William L. Rikard, Jr., and Sally Nan Barber, Charlotte, for plaintiffs-appellees.

Basil L. Whitener and Anne M. Lamm, Gastonia, for defendant-appellant Wolfe.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Michael E. Weddington and Susan M. Parker, Raleigh, for defendant-appellant Johnston.

MARTIN, Judge.

Defendants bring forth assignments of error relating to the denial of their motions, instructions to the jury, evidentiary rulings, and the submission of the issue of punitive damages to the jury. We have examined each of the assignments and find no basis for reversal.

I. JOHNSTON'S APPEAL

Defendant Johnston assigns error to the trial court's denial of his motions for a directed verdict and for judgment notwithstanding the verdict. Defendant Johnston's assignment is based on two contentions: (1) failure to state a claim of abuse of process, and (2) insufficiency of the evidence.

In order to state a claim for the tort of abuse of process, plaintiffs must sufficiently allege (1) an ulterior motive, and (2) an act in the use of the legal process not proper in the regular prosecution of the proceeding. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). The ulterior motive requirement is satisfied when the plaintiff alleges that the prior action was initiated by the defendant or used by him to achieve a purpose not within the intended scope of the process used. Id. The act requirement is satisfied when the plaintiff alleges that during the course of the prior proceeding, the defendant committed some wilful act whereby he sought to use the proceeding as a vehicle to gain advantage of the plaintiff in respect to some collateral matter. Edwards v. Jenkins, 247 N.C. 565, 101 S.E.2d 410 (1958).

Plaintiffs' amended complaint alleges that through the partnership action, defendants maliciously filed notices of lis pendens and notices of lien on property owned by plaintiffs "for the purpose of injuring and destroying the credit business of the plaintiffs and in general to oppress the plaintiffs." These allegations sufficiently allege an ulterior motive and a wilful act not proper in the regular course of defendants' civil proceeding, i.e., defendants allegedly filed the notices of lis pendens in order to coerce plaintiffs and to achieve a purpose for which lis pendens was never intended. "[O]ne who wantonly, maliciously, without cause, commences a civil action and puts upon record a complaint and a lis pendens for the purpose of injuring and destroying the credit and business of another" warrants the court to grant relief to the victim of such coercion through the tort of abuse of process. Austin v. Wilder, 26 N.C.App. 229, 233, 215 S.E.2d 794, 797 (1975), quoting Estates v. Bank, 171 N.C. 579, 582, 88 S.E. 783, 784 (1916). Plaintiffs' complaint states a claim upon which relief may be granted.

Defendant Johnston also contends that his motion for directed verdict should have been granted due to the insufficiency of the evidence. This contention raises the question of whether the evidence, when considered in the light most favorable to the plaintiffs, is sufficient for submission to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). Plaintiff offered evidence through the testimony of Charles Hewes that defendant Johnston told the Hewes, "I'm going to ruin everything you've got if I can," and that defendant Wolfe stated at an earlier trial that he had the liens filed in order to "cut off my [Hewes'] money." An attorney who represented the Hewes in the earlier civil action brought against them by the Wolfes stated that defendant Johnston said he would "get" the Hewes, and defendant Johnston also refused a request for assurances that additional liens would not be filed regarding a proposed construction project by Mr. Hewes which was unrelated to any business transaction with the Wolfes. While it is true that defendant Johnston's evidence denied the testimony of plaintiffs' witnesses, "such variance presented issues of fact for the jury and not solely questions of law for the court." Ellis v. Wellons, 224 N.C. 269, 272, 29 S.E.2d 884, 886 (1944). The evidence was sufficient for submission to the jury; defendant Johnston's motions for a directed verdict and judgment notwithstanding the verdict were properly denied.

Defendant Johnston, through several assignments of error, contends the trial court erred in various evidentiary rulings. First, on redirect examination defendant Johnston was not permitted to testify about his method of doing legal research; defendant contends his defense of a good faith effort to protect partnership property was thereby thwarted. We disagree. On direct examination, defendant Johnston testified regarding his method of research and the steps he took in determining a course of action for Mr. Wolfe and the partnership. He claims that exclusion of this same testimony on redirect examination prevented him from showing his good faith. "A trial court has discretionary power to exclude or limit the repetition of questions and answers, however proper such questions and answers may have been in the first instance." Spivey v. Newman, 232 N.C. 281, 285-86, 59 S.E.2d 844, 848 (1950). Defendant Johnston has failed to demonstrate prejudicial error by this contention.

Defendant Johnston's remaining evidentiary assignments of error assert error in the admission of a notice of lien filed on a house owned by one Frank Laye, a notice of lien filed on plaintiffs' residence, testimony as to attorney fees for legal work performed to acquire removal of the liens, testimony as to costs incurred by plaintiffs for a land survey and plat in seeking another construction project, testimony as to expenses incurred by Hewes in starting a new business, testimony as to the amount of a proposed construction contract with one Mrs. Whitworth which was prevented because of defendant Johnston's refusal to agree not to place a lien, and previous orders by trial judges reciting that the notices of lien were without statutory authority. We have carefully examined these assignments and find that they involve exhibits which contain the very matters constituting the misuse of judicial process, evidence which is relevant to damages incurred by plaintiffs because of the liens and lis pendens, and evidence tending to show defendant Johnston's motive and misuse of judicial process. The evidence was therefore relevant and admissible, and the assignments are overruled.

Next, defendant Johnston contends the trial court erred in precluding his counsel from reading to the jury, during closing argument, a portion of a statute and part of a case opinion. He argues that the jury, after hearing the law which he relied on, could have reasonably concluded his actions in filing the liens were based on a good faith effort to protect his client's interests. Arguments of counsel to the jury are within the discretion of the trial judge, and rulings regarding those arguments will not be disturbed in the absence of an abuse of discretion. State v. Monk 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Small, 31 N.C.App. 556, 230 S.E.2d 425 (1976), disc. rev. denied, 291 N.C. 715, 232 S.E.2d 207 (1977). The statute defendant Johnston sought to read to the jury set forth a partner's right to insist that partnership assets be applied in payment of partnership debts, not the allowance of the filing of notices of lien and lis pendens against real property when the action does not affect title to the real property of the partnership; and the case which he sought to read to the jury involved an attorney's liability for abuse of process from the filing of a malpractice suit, not the misuse of judicial process after the institution of an action. As such, both involved principles of law which were irrelevant to the case and had no application to the facts in evidence. See State v. Crisp, 244 N.C. 407, 94 S.E.2d 402 (1956). Therefore, the trial judge did not abuse his discretion in sustaining plaintiffs' objections to portions of defendant Johnston's closing argument.

Defendant Johnston also contends the trial court erred in failing to summarize for the jury evidence with regard to the specific statutes and cases which defendant Johnston researched prior to filing the liens. This assignment of error is without merit. In his summary of the evidence, the trial judge instructed the jury.

[t]hat prior to filing liens and notices of lis pendens ... Mr. Johnston did considerable research.... [H]e consulted the North Carolina Uniform Partnership Act and ... he read numerous cases of the North Carolina Appellate Court.

Thus, the evidence tending to show that defendant Johnston researched the law prior to filing notices of...