Domestic Relations – Abuse of Process – Alienation of Affections

Defendant presented evidence that Plaintiff had an ulterior purpose and committed willful acts that were collateral to the action instituted. Thus, the trial court erroneously granted Plaintiff’s motion for JNOV on Defendant’s abuse of process claim.

We reversed the trial court’s order setting aside the jury verdict.

This matter was before us following a jury verdict finding Defendant not liable for alienation of affections and Plaintiff liable for abuse of process. The jury awarded Defendant compensatory and punitive damages, and Plaintiff moved for judgment notwithstanding the verdict (JNOV). The trial court granted Plaintiff’s motion and Defendant appealed.

Plaintiff met Mary in 2008, and they married in June 2010. Mary had two children from a prior marriage and was a stay-at-home mother. Plaintiff owned a home in Naples, Florida and Mary occasionally vacationed alone at the home. During one of her visits in May 2013, Mary met Defendant, who lived nearby. Following this visit, Mary and Defendant remained in frequent contact through text messages and telephone calls. In November 2013, Plaintiff confronted Mary and accused her of having an affair with Defendant. This encounter resulted in Mary seeking a domestic violence protection order against Plaintiff. The order was granted and Mary and Plaintiff separated. After their separation, Mary remained in the marital home until June 2014, when she and her children moved to Naples, Florida and lived in properties owned by Defendant.

Defendant argued the trial court erred by granting Plaintiff’s motion for JNOV. We had to examine the evidence presented at trial to determine whether there is more than a “scintilla of evidence” to support each element of Defendant’s abuse of process claim.

Plaintiff argued that even if Plaintiff’s filing of the lawsuit and the issuance of the summons “was undertaken maliciously, this is not sufficient to uphold the verdict for abuse of process because the “process was limited to the regular and legitimate function in relation to the cause of action stated in the complaint that initiated the process.” The “abuse” was Plaintiff’s trespass on Defendant’s property and spitting on Defendant while he was at Defendant’s home on the pretext of assisting the process server in serving the complaint. Had Plaintiff merely driven by Defendant’s home, taken photographs of a car, and later had Defendant served in a public place, this would be a very different case. Defendant presented evidence that, after Plaintiff’s complaint was filed, Defendant’s attorney offered to accept service on behalf of Defendant. Rather than letting Defendant’s attorney accept service, Plaintiff used the need to serve Defendant as an excuse to drive to Defendant’s home in Florida allegedly to locate him to assist the process server. But Plaintiff did not merely drive by; he trespassed on Defendant’s property, went into the garage, and confronted Mary. John saw Plaintiff yelling at Mary and backing her against a wall. Plaintiff made verbal threats to John, stating he would hire someone to sexually assault Mary. Plaintiff spat on Defendant before leaving the home. Following this incident, a court in Florida granted Mary’s petition for a domestic violence protection order against Plaintiff. The Florida court found that there was no reason for Plaintiff to be at Defendant’s home and his actions were of a larger scheme of harassment toward Mary and her family. And although the findings of the Florida court are not determinative for purposes of this action, they are part of the evidence presented to the jury and which we must consider in the light most favorable to Defendant for review of the order granting JNOV. From this evidence, a jury could reasonably conclude that Plaintiff used the legal process for an ulterior purpose and committed acts to further that purpose which were not proper in the regular course of proceedings. He used the legal process—his claim he was helping the private process server to serve the summons and complaint on Defendant—as a pretext to trespass on Defendant’s property, to confront Mary and John, and to assault Defendant by spitting on him. This evidence would allow the jury to conclude that Plaintiff brought this suit for an ulterior purpose and then committed an act to further his ulterior purpose in his visit to Defendant’s home for the claimed purpose of serving the complaint.

Reversed.

Ponder v. Been (Lawyers’ Weekly No. 011-172-25, 18 pp.) (Donna Stroud, J.) Appealed from Mecklenburg County Superior Court (Nathaniel J. Poovey, J.) Sodoma Law, P.C., by Amy E. Simpson and Caitlin H. Hickman, for plaintiff-appellee. Womble Bond Dickinson (US) LLP, by James P. Cooney III and Patrick Grayson Spaugh, for defendant-appellant. North Carolina Court of Appeals