Shore v. Farmer

• Decision Date: 01 June 1999
• Docket Number: No. COA98-408.,COA98-408.
• Citation: 515 S.E.2d 495,133 NC App. 350
• Court: North Carolina Court of Appeals
• Parties: Jenny Barbee SHORE, Plaintiff, v. Ray FARMER, t/d/b/a Ray Farmer Bonding, Defendant.

515 S.E.2d 495

133 NC App. 350

Jenny Barbee SHORE, Plaintiff, v. Ray FARMER, t/d/b/a Ray Farmer Bonding, Defendant.

No. COA98-408.

Court of Appeals of North Carolina.

June 1, 1999.

David Y. Bingham and Thomas M. King, Salisbury, for plaintiff-appellee.

The Holshouser Law Firm by John L. Holshouser, Jr., Salisbury, for defendant-appellant.

JOHN, Judge.

Defendant Ray Farmer, t/d/b/a/ Ray Farmer Bonding, appeals the judgment of the trial court, arguing the court (1) "abused its discretion in allowing [p]laintiff to [a]mend her [c]omplaint ... after the close of all of the evidence;" and (2) "erred by submitting the issue of [p]unitive [d]amages to the [j]ury." Defendant also assigns error to certain comments by the trial court. Plaintiff Jenny Barbee Shore cross-assigns as error the court's "failure to submit the issue of... unfair and deceptive trade practice[s] to the jury." We conclude the trial court committed no prejudicial error.

Pertinent facts and procedural history include the following: During a June 1991 vacation in Myrtle Beach, South Carolina, plaintiff and her husband were arrested on North Carolina warrants. The couple waived extradition and were transported to the Ashe County jail. Three days later, plaintiff was transferred to the Watauga County jail.

Defendant, a professional bail bondsman, subsequently represented to plaintiff that $75,000.00 in premiums would procure the requisite bail bonds to secure her release. On 25 June 1991, plaintiff advanced defendant a portion of the specified amount and promised tender of the balance within ten (10) days of her release. Upon defendant's posting of plaintiff's bail, she was released and subsequently paid defendant the amount due on 29 June 1991. At that time, plaintiff and defendant discussed bond for plaintiff's husband. The latter was released two days later upon defendant's posting of bail upon receipt of a $10,000.00 premium procured by placing a charge in that amount on the Gold Master Credit Card of Bob LaBianca (LaBianca). On 26 July 1991, however, defendant was informed by LaBianca's bank that LaBianca had signed a statement indicating he did not authorize the $10,000.00 credit.

On 12 August 1991, Shore and her husband, along with their two children, traveled to the Allegheny County courthouse for a scheduled bond hearing. However, defendant and two other bondsmen were waiting to arrest and surrender plaintiff and her husband into custody. While handcuffing plaintiff in the presence of her children and other onlookers, defendant stated he was causing her to be surrendered because her husband had not paid his bond in consequence of LaBianca's recission of the $10,000.00 credit card charge.

On 16 October 1995, plaintiff filed the instant action alleging breach of contract, unfair and deceptive trade practices, and false imprisonment or wrongful arrest resulting in "severe emotional distress." By answer filed 9 January 1996, defendant generally denied plaintiff's allegations and asserted that "all actions taken by [d]efendant with respect to plaintiff were fully authorized and prescribed by law."

At trial, upon oral motion by plaintiff to amend after presentation of all evidence, the trial court submitted an issue of punitive damages to the jury. Plaintiff thereafter filed a written amendment to her complaint so as to assert a claim for "punitive damages in an amount in excess of Ten Thousand Dollars ($10,000.00)." The jury found in plaintiff's favor and awarded, inter alia, $150,000.00 in punitive damages. Plaintiff and defendant filed timely notice of appeal.

We first consider defendant's contention that the trial court "abused its discretion in allowing plaintiff-appellee to amend her complaint to request punitive damages." We disagree.

We note initially that this issue, as argued by defendant in his appellate brief and discussed by the dissent, is not properly before us. The parties recite only that plaintiff's oral motion to amend her complaint to allege a claim for punitive damages was allowed by the trial court, over defendant's objection, during an unrecorded, in-chambers conference during which the court's charge to the jury was discussed. Both defendant and the dissent presently challenge the action of the trial court on grounds, in the words of defendant, that "punitive damages are not recoverable in a mere breach-of-contract case."

However, as noted below, defendant lodged no objection on the record to the submission of a punitive damages issue to the jury either at the recorded charge conference or subsequent to the trial court's jury charge. See N.C.R.App. P. 10(b)(2) ("[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict"). We do not believe defendant may now properly attempt to bootstrap his unpreserved argument regarding submission of punitive damages to the jury onto his challenge to the court's allowance of plaintiff's motion to amend. See State v. Trull, 349 N.C. 428, 446, 509 S.E.2d 178, 191 (1998) (where evidence admitted over objection and later admitted without objection, "the benefit of the objection is lost"), and State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (pre-trial motion in limine fails to preserve issue for appellate review when no objection lodged at time challenged evidence is introduced at trial). Accordingly, it is unnecessary to address either defendant's contentions or the exhaustive commentary by the dissent regarding the propriety of punitive damages in a case wherein a surety is accused of wrongfully surrendering a principal.¹ Turning to the question actually before us, we observe that

[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

N.C.G.S. § 1A-1, Rule 15(b) (1990) (Rule 15(b)) (emphasis added).

The effect of Rule 15(b)

is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case.

Roberts v. Memorial Park, 281 N.C. 48, 59, 187 S.E.2d 721, 727 (1972). Further, the trial court's ruling on a motion to amend pleadings may be reversed on appeal only upon a showing of abuse of discretion. See Hassett v. Dixie Furniture Co., 104 N.C.App. 684, 688, 411 S.E.2d 187, 190 (1991),

rev'd on other grounds,

333 N.C. 307, 425 S.E.2d 683 (1993).

In the case sub judice, plaintiff's complaint alleged defendant wrongfully arrested her thereby inflicting "severe emotional distress," and that his acts were "deliberate, vicious, malicious, and without just cause or excuse." The specific language of the complaint thus sufficiently articulated a claim for punitive damages as to put defendant on notice of such a claim. See Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 348, 452 S.E.2d 233, 238 (1994)

(complaint alleging intentional infliction of emotional distress and "intentional acts of the type ... giving rise to punitive damages" sufficiently put defendants on notice of plaintiffs' punitive damages claim); see also Stanback v. Stanback, 297 N.C. 181, 196-98, 254 S.E.2d 611, 621-24 (1979) (plaintiff's punitive damages claim properly submitted to jury where "plaintiff's complaint with respect to punitive damages [was] sufficient at least to state a claim for damages for an identifiable tort accompanying a breach of contract" and also alleged defendant acted "wilful[ly], malicious[ly]... recklessly and irresponsibly and with full knowledge").

Moreover, we note defendant has advanced no suggestion of additional witnesses he might have called, further cross-examination he would have conducted, supplementary exhibits he would have introduced, or how amendment otherwise prejudiced him in maintaining his defense. See Trucking Co. v. Phillips, 51 N.C.App. 85, 90, 275 S.E.2d 497, 500 (1981)

("defendants failed to show how the amendments [to pleadings so as to conform to the evidence] would [have] prejudice[d] them in maintaining their defense").

Accordingly, we cannot say the trial court abused its discretion in allowing plaintiff's motion to amend her pleadings so as to conform to the evidence presented. Rather, it appears defendant was afforded adequate notice of plaintiff's claim for punitive damages and that he had "fair opportunity" to defend against such claim. See Roberts, 281 N.C. at 59,

187 S.E.2d at 727.

Returning to defendant's argument as presented in his appellate brief that the trial court "erred by submitting the issue of punitive damages to the jury," we reiterate that the record reflects no objection by defendant to any evidence tending to support plaintiff's claim for punitive damages or, as previously noted, to the court's instruction of the jury on that issue. Indeed, the transcript reflects the following multiple opportunities at which defendant might have lodged objection to a jury instruction on punitive damages:

The Court: I'll hear each of you ... does anybody want to say anything at all

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