Brown v. Averette

Annotate this Case

313 S.E.2d 865 (1984)

Inez H. BROWN v. Raymond AVERETTE, Executor of the Estate of Luther M. Ray, and Raymond Averette, J.W. Privette, and Gwendolyn F. Privette, Individually.

No. 8210SC1261.

Court of Appeals of North Carolina.

April 17, 1984.

*866 William A. Smith, Jr., Raleigh, for plaintiff-appellant.

Johnson, Gamble & Shearon by David R. Shearon and M. Blen Gee, Jr., Raleigh, for defendant-appellee Raymond Averette.

J. Michael Weeks, Zebulon, for defendants-appellees J.W. Privette and Gwendolyn F. Privette.


Malicious prosecution claims based on prior court proceedings of a civil nature are enforceable in this state. Byrd, Malicious Prosecution in North Carolina, 47 N.C.Law Review 285 (1969). According to some of the most cited and quoted decisions in this field, such claims have the following requirements: (1) the prior action was against plaintiff; (2) it was brought, instigated or supported by the defendant; (3) in doing so the defendant acted with malice and without probable cause or justification; (4) the action terminated in plaintiff's favor; and (5) because of the action plaintiff was specially damaged in a way different from the way that everyone is damaged who is sued unsuccessfully. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979); Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139 (1964). Though not material to the determination of this appeal, since the plaintiff alleges that the defendants acted maliciously in the prior action, it is interesting that a decision written by one of the state's most venerated jurists more than a century and a quarter ago indicates that requiring malice in these actions is not well founded. In that case, based on an unwarranted attachment of plaintiff's property, one of the earliest involving litigation of this type, Justice (later Chief Justice) Pearson noted that malice is required for cases based on prior criminal prosecutions because it is the policy of the law to encourage people to bring criminals under control of the courts, but that those who wrongfully instigate or pursue spurious civil actions are protected by no such policy. "It is a matter between private citizens, and if the wrongful act of one causes loss to another, there is no reason why compensation should not be made." Kirkham v. Coe, 46 N.C. 423, 429 (1854). Be that as it may, the only requisite listed above that is not indisputably alleged in plaintiff's complaint is the last one concerning special damages. Thus, the outcome of *867 the appeal depends upon that allegation; if it is sufficient the judgment appealed from must be reversed, if it is insufficient the judgment must be affirmed.

Certainly, the allegations that plaintiff was obliged to devote both time and money to the prior case and was greatly embarrassed and upset because of it do not help to lay out a claim that our law can enforce. Embarassment, expense, inconvenience, lost time from work or pleasure, stress, strain and worry are experienced by all litigants, to one degree or another, and by themselves do not justify additional litigation. But the allegations that because of the cloud on her title that the prior suit created she was unable to convey some of the land to her son, as she had promised to do, and was unable to profit from the tobacco acreage on the property, complete the statement of an enforceable claim, in our opinion. An interference with the use, enjoyment, transfer of, and profit from property is not the inherent and usual result of all civil litigation; and her allegation that the case of the defendants had those damaging effects gives her the right, under the law, to try and prove that that is the fact. A holding to the contrary would require a determination that plaintiff could not be entitled to any relief under any evidence that might be presented in support of the claim, Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979), or that her allegations are not supportable by evidence. For reasons that seem obvious to us, we are not prepared to make either determination. Instead, we hold that the special damages requirement for these actions has been adequately alleged and that it was error to dismiss plaintiff's complaint. That we do not know how plaintiff proposes to prove her allegations is beside the point. Our only duty now is to evaluate the adequacy of her allegations; whether she can prove them is another matter that will have to be determined later.

The defendants reliance upon the fact that the complaint does not allege any overt seizure or technical interference with plaintiff's propertysuch as an attachment, as in Brown v. Guaranty Estates Corp., 239 N.C. 595, 80 S.E.2d 645 (1954); or a lis pendens, as in Chatham Estates v. American National Bank, 171 N.C. 579, 88 S.E. 783 (1916); or an injunction, as in Shute v. Shute, 180 N.C. 386, 104 S.E. 764 (1920)is misplaced. The law does not grant redress just when certain civil procedures or devices are used; it grants redress to parties that are damaged in ways that the usual civil litigant is not. Furthermore, there is no reason to believe that the procedures utilized in the cases referred to are the only means by which parties can be damaged by civil litigation. Indeed, when some of these cases were decided tobacco allotments and many other valuable, modern property interests were unknown; and that the owners of such interests can be damaged by civil actions even when no attachment, injunction, or lis pendens is used, is a possibility that we are not prepared to deny. Nor do we accept the defendants' contention that plaintiff could not have been damaged, as alleged, since the public was not technically put on notice of defendants' claim by a lis pendens, and therefore plaintiff could have sold, leased, or given the property or tobacco allotments to someone that did not know of the lawsuit. The title to plaintiff's property was being contested in court, and we reject the notion that everyone, or even most people, would sell, lease or give away land so beclouded, or would encourage or even permit one to start a tobacco crop on it, without disclosing the fact that a burden, instead of a benefit, might be received. The law does not penalize candor and fair dealing, and if it should be established that the defendants' lawsuit prevented plaintiff from conveying her property or profiting from her tobacco acreage in transactions based on a full disclosure of the facts, the law will not deny her redress.


WEBB and EAGLES, JJ., concur.