Nguyen v. Burgerbusters, Inc.

• Decision Date: 03 April 2007
• Docket Number: No. COA06-607.,COA06-607.
• Citation: 642 S.E.2d 502
• Court: North Carolina Court of Appeals
• Parties: Hung NGUYEN, Plaintiff, v. BURGERBUSTERS, INC., d/b/a Taco Bell, Defendant.

642 S.E.2d 502

Hung NGUYEN, Plaintiff, v. BURGERBUSTERS, INC., d/b/a Taco Bell, Defendant.

No. COA06-607.

Court of Appeals of North Carolina.

April 3, 2007.

Appeal by defendant from a judgment and order entered 14 November 2005 and 9 December 2005, respectively, by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 10 January 2007.

Carruthers & Roth, P.A., by Kenneth R. Keller and William J. McMahon, IV, Greensboro, for plaintiff-appellee.

Smith Moore, L.L.P., by James G. Exum, Jr. and Allison O. Van Laningham, Greensboro, for defendant-appellant.

BRYANT, Judge.

Burgerbusters, Inc. (defendant) appeals from a judgment entered 14 November 2005, consistent with a jury verdict finding defendant liable to Hung Nguyen (plaintiff) for malicious prosecution and awarding damages in the amount of $200,000. Defendant also appeals from an order entered 9 December 2005 denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We find defendant received a trial free from error and affirm the judgment and order of the trial court.

Facts

Plaintiff was an employee of defendant, working as a General Manager of one of defendant's Taco Bell franchise restaurants. Plaintiff's wife was also an employee of defendant, working in the store plaintiff managed. In October 2000, Christakis Paphites, defendant's President and Chief Operating Officer, received a letter via facsimile alleging plaintiff was adding hours to his wife's time records above and beyond what she was actually working. Paphites instituted an investigation into these allegations which was led by Gayle White, the District Manager over the restaurants in which plaintiff and his wife worked.

Based on information provided by White and an interview with plaintiff by White and Joe Mangano, defendant's Vice President for Operations, defendant fired plaintiff. Defendant subsequently provided information to Detective Glenn Knight, a fraud/financial crimes investigator for the Greensboro Police Department, alleging that plaintiff had caused defendant to pay $25,000 to a nominal employee who did not work for the company. From the information provided by defendant, the Guilford County District Attorney's Office obtained an indictment against plaintiff on the charge of embezzling $25,000 from defendant. However, after further investigation into the criminal charge by the Assistant District Attorney (ADA) handling the case, it was determined that there was insufficient evidence to prosecute plaintiff and the charge of embezzlement was dismissed.

Procedural History

On 13 September 2004, plaintiff filed a complaint against defendant seeking compensatory and punitive damages for malicious prosecution and abuse of process. Defendant filed its answer on 15 November 2004. This matter was tried before a jury beginning on 31 October 2005. During the trial, defendant made a motion for a directed verdict, which was granted in part on the claim of abuse of process and as to the issue of punitive damages. The jury returned a verdict on 3 November 2005 finding defendant liable to plaintiff and awarding damages of $200,000. The trial court subsequently entered a judgment for plaintiff consistent with the jury verdict. On 14 November 2005, the trial court entered amended judgment on the verdict, correcting the name of the defendant against whom judgment was entered. Defendant filed a motion for judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial on 17 November 2005. Defendant's motion was denied by order entered 9 December 2005. Defendant appeals.

Defendant raises the issues of whether: (I) the trial court erred in denying defendant's motion for judgment notwithstanding the verdict because plaintiff failed to prove malicious prosecution; (II) the action should be dismissed because plaintiff did not introduce into evidence the warrant or indictment at trial; and (III) whether the trial court erred in denying defendant's motion for a new trial.

I

Defendant first argues the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiff failed to prove malicious prosecution. "`When determining the correctness of the denial [of a motion] for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, or to present a question for the jury.'" Arndt v. First Union Nat'l Bank, 170 N.C.App. 518, 522, 613 S.E.2d 274, 277-78 (2005) (quoting Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991)). To prove a claim for malicious prosecution, a plaintiff must establish four elements: "`(1) the defendant initiated the earlier proceeding; (2) malice on the part of the 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.'" Beroth Oil Co. v. Whiteheart, 173 N.C.App. 89, 99, 618 S.E.2d 739, 746 (2005) (quoting Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994)), appeal dismissed, disc. rev. denied, 360 N.C. 531, 633 S.E.2d 674 (2006). Defendant contends plaintiff failed to meet his burden of proof on any of these four elements. For the reasons below we find plaintiff presented sufficient evidence to sustain a jury verdict in his favor and overrule this assignment of error.

Defendant's Initiation of Earlier Proceeding

It is well established that the "act of giving honest assistance and information to prosecuting authorities does not render one liable for malicious prosecution." Williams v. Kuppenheimer Mfg. Co., 105 N.C.App. 198, 201, 412 S.E.2d 897, 900 (1992); see also Harris v. Barham, 35 N.C.App. 13, 16, 239 S.E.2d 717, 719 (1978) ("[I]t cannot be said that one who reports suspicious circumstances to the authorities thereby makes himself responsible for their subsequent action, ... even when ... the suspected persons are able to establish their innocence."). "However, where `it is unlikely there would have been a criminal prosecution of [a] plaintiff' except for the efforts of a defendant, this Court has held a genuine issue of fact existed and the jury should consider the facts comprising the first element of malicious prosecution." Becker v. Pierce, 168 N.C.App. 671, 675, 608 S.E.2d 825, 829 (2005) (quoting Williams, 105 N.C.App. at 201, 412 S.E.2d at 900).

Viewing the evidence of record before this Court in the light most favorable to the nonmovant, plaintiff has met his burden with respect to this element. As in Becker and Williams, defendant provided all of the information upon which the arrest warrant, indictment, and initial prosecution were all based. Defendant's agents contacted the police and presented information tending to show that plaintiff's wife was not an employee of defendant. Without the initial contact from defendant, it is unlikely there would have been a criminal prosecution of plaintiff. Thus, a genuine issue of fact existed as to whether defendant initiated the criminal proceeding and the trial court properly submitted this issue to the jury.

Defendant's Lack of Probable Cause

Regarding a claim for malicious prosecution,

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. Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court.

Best, 337 N.C. at 750, 448 S.E.2d at 511 (internal citations and quotations omitted). However, "`[w]hen the facts are in dispute the question of probable cause is one of fact for the jury.'" Martin v. Parker, 150 N.C.App. 179, 182, 563 S.E.2d 216, 218 (2002) (quoting Pitts v. Village Inn Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379 (1978)).

Here, the evidence establishes plaintiff's wife was an employee of defendant. Further, plaintiff produced evidence that under an agreement with White, plaintiff was permitted to charge his time working at a second restaurant to his wife. Plaintiff disclosed to Mangano his agreement with White prior to defendant's contact with the police. However, defendant chose to rely on White's investigation and assertions to substantiate its allegations of embezzlement by plaintiff.

Defendant's allegations of embezzlement were based upon its belief that plaintiff's wife was not an employee of defendant. At trial, White admitted she informed the police that "[plaintiff's wife] was not an employee and had never worked at the premises." Given defendant's position as the actual employer of both plaintiff and his wife, defendant was in the best position to determine whether plaintiff's wife was or was not one of its employees. Instead, defendant presented information to the police alleging plaintiff's wife was not an employee and that plaintiff was embezzling money from defendant by paying her wages. Viewing the evidence in the light most favorable to plaintiff, the trial court properly submitted to the jury the issue of whether defendant lacked probable cause to commence a prosecution because plaintiff had been given permission by one of defendant's agents to charge his time to his wife.

Malice on the Part of Defendant

"In an action for malicious prosecution, the malice element may be satisfied by a showing of either actual or implied malice." Beroth Oil, 173 N.C.App. at 99, 618 S.E.2d at 746 (citation omitted). "Implied malice ... may be inferred from want of probable cause in reckless disregard of the plaintiff's rights." Id.; see also Williams, 105 N.C.App. at 203, 412 S.E.2d at 901 ("It is well settled that legal malice may be inferred from a lack of probable cause."). Thus, the same evidence supporting the trial court's submission of the element of...