              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-945

                              Filed: 16 February 2016

Guilford County, No. 14 CVS 7320

ROBERT FUHS, SR., Plaintiff,

             v.

SUMMER FUHS, CONSTANCE C. MOORE and LEGAL AID OF NORTH
CAROLINA, INC., Defendants.


      Appeal by plaintiff from order entered 22 January 2015 by Judge Stanley L.

Allen, and order entered 16 June 2015 by Judge Lindsay R. Davis, Jr. in Guilford

County Superior Court. Heard in the Court of Appeals 27 January 2016.


      Randolph M. James, P.C., by Randolph M. James, for plaintiff-appellant.

      Poyner Spruill LLP, by T. Richard Kane, for defendant-appellees Constance C.
      Moore and Legal Aid of North Carolina, Inc.


      TYSON, Judge.


      Robert Fuhs, Sr. (“Plaintiff”) appeals from: (1) order allowing Constance C.

Moore’s (“Defendant Moore”) and Legal Aid of North Carolina, Inc.’s (collectively,

“Defendants”) motion to dismiss Plaintiff’s malicious prosecution claim; and (2) order

allowing Defendants’ motion for summary judgment challenging Plaintiff’s abuse of

process claim. We affirm.

                               I. Factual Background
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      Plaintiff and Summer Fuhs (“Summer”) were married on or about 1 May 2004,

and lived in Guilford County, North Carolina.            Two children were born of the

marriage: a son, R.F., and a daughter, B.F. On or about 1 August 2012, Summer left

the marital residence due to her “illicit sexual affair” with Doug Posey (“Posey”), a

man she had met on a social media site, Facebook, and who lived in Macon County,

North Carolina. A 10 August 2012 consent order confirmed Plaintiff and Summer

agreed Plaintiff would have physical custody of both R.F. and B.F.

      Much of Plaintiff’s complaint describes numerous false allegations Summer

and Posey made against Plaintiff prior to Defendants’ involvement in this case.

According to the complaint, the false allegations asserted by Summer and Posey

included: (1) three reports to the Guilford County Department of Social Services

(“DSS”), accusing Plaintiff of child neglect, alcoholism, and violence toward the minor

children; one report also alleged Plaintiff’s 15-year-old son from a previous marriage

had engaged in “inappropriate sexual behaviors” with B.F.; (2) two attempted arrests,

including one allegation of indecent liberties with his own daughter, B.F.; and (3)

three actual arrests: one for aggravated assault on a female, one for communicating

threats, and one for violation of a 50B Domestic Violence Protection Order.

      All reports to DSS were investigated, returned as unfounded, and closed. All

criminal charges were dismissed or resulted in verdicts of not guilty.        Relevant




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portions of the above referenced allegations are presented in more detail as they

relate to Defendants’ involvement in this case.

           A. Domestic Violence Complaint and Defendant’s Involvement

      On 26 June 2013, Summer “place[d] a 50B charge” against Plaintiff in Macon

County (the “DVPO Case”). On 30 June 2013, Summer’s grandmother posted a

picture of B.F. on Facebook, and Plaintiff posted a public comment on the picture. As

a result of Plaintiff’s comment, Summer had Plaintiff arrested for violation of the 26

June 2013 domestic violence protection order. These charges were “immediately

dismissed” by the Macon County District Attorney.

      On 9 August 2013, Summer called the Macon County Sheriff’s Department and

alleged Plaintiff had engaged in inappropriate sexual conduct.          According to

Summer’s allegations, Plaintiff, while intoxicated, made B.F. remove her clothes and

he touched B.F. inappropriately.       The Sheriff’s Department investigated and

concluded the allegations were unfounded, but nonetheless referred the case to DSS.

DSS, in turn, conducted interviews and similarly concluded the allegations were

unfounded.

      On 15 August 2013, while Plaintiff was in Macon County defending the alleged

violation of the 50B order, Plaintiff was served with a “First Amended Complaint

Motion for Domestic Violence Order” (the “Amended Complaint”) in the DVPO Case.

The Amended Complaint was prepared by Defendant Moore in her capacity as



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Summer’s attorney. At the time, Defendant Moore was serving as a staff attorney for

Legal Aid of North Carolina, Inc. The second paragraph of the Amended Complaint

drafted by Defendant Moore and signed by both Defendant Moore and Summer

stated:

             On August 2, 2013, the minor child [B.F.], age 5, revealed
             to a Franklin Police Office [sic], Tony Hopkins, that when
             [Plaintiff] becomes intoxicated he takes [B.F.’s] pants off
             and touches her vaginal area. The minor child, [R.F.], age
             8, has observed [Plaintiff] engaging in this behavior. These
             allegations are under investigation by [DSS]. Both children
             are afraid of retaliation from [Plaintiff] because of their
             statements.

Much of this allegation was repeated in a document entitled “Supplemental Pleading

for [Summer’s] Motion for Emergency Custody and Motion to Modify and Motion to

Continue” (“Supplemental Pleading”), which was filed on 19 August 2013 in the

pending child custody case between Plaintiff and Summer (the “Child Custody Case”).

On 11 September 2013, a “Temporary Memorandum of Judgment/Order Without

Prejudice” was filed in the Child Custody Case, and stated “that pending the DSS

investigation [into Summer’s 9 August 2013 allegations], [Summer] will have

temporary custody” of R.F. and B.F.

      After receiving the Amended Complaint, Plaintiff called Franklin Police

Department Officer Tony Hopkins (“Officer Hopkins”) to discuss the allegations made

therein. During the course of their conversation, Officer Hopkins revealed to Plaintiff

that B.F. had never made the allegations to him as was stated in the Amended


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Complaint. Defendant Moore later revealed she made no independent investigation

and relied solely on Summer’s statements in drafting the second paragraph of the

Amended Complaint. On 24 October 2014, the DVPO Case against Plaintiff was

dismissed.

      Plaintiff filed the present lawsuit against Summer and Defendants in Guilford

County Superior Court.       Plaintiff alleged claims against each defendant of: (1)

malicious prosecution; (2) abuse of process; (3) intentional infliction of emotional

distress; (4) negligent infliction of emotional distress; (5) libel per se; and (6) slander

per se. On 1 October 2014, the Guilford County Clerk of Superior Court entered

default against Summer for failure to answer, plead, or otherwise appear in the

lawsuit within the time permitted. Summer is not a party to this appeal.

      Defendants filed an answer on 10 September 2014 and alleged Plaintiff’s

complaint failed to state a claim upon which relief may be granted pursuant to Rule

12(b)(6) of the North Carolina Rules of Civil Procedure. On 20 January 2015, the

trial court allowed Defendants’ motion to dismiss Plaintiff’s claims for malicious

prosecution and negligent and intentional infliction of emotional distress, but denied

the motion to dismiss as to the abuse of process, libel and slander per se claims.

      The case proceeded to discovery on Plaintiff’s remaining claims. On 8 June

2015, the trial court granted Defendants’ motion for summary judgment on all of

Plaintiff’s remaining claims. Plaintiff gave timely notice of appeal on 22 June 2015.



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                                         II. Issues

      Plaintiff argues the trial court erred by: (1) allowing Defendants’ motion to

dismiss his claim of malicious prosecution; and (2) allowing Defendants’ motion for

summary judgment on his claim of abuse of process. Plaintiff has not asserted any

argument regarding his other dismissed claims for negligent and intentional

infliction of emotional distress, libel per se or slander per se. The trial court’s orders

are final concerning those claims.

                               III. Malicious Prosecution

      Plaintiff first argues the trial court erred in allowing Defendants’ motion to

dismiss his claim for malicious prosecution. We disagree.

                                 A. Standard of Review

      When we review the trial court’s ruling on a motion to dismiss pursuant to

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure,

             the standard of review is whether, as a matter of law, the
             allegations of the complaint, treated as true, are sufficient
             to state a claim upon which relief may be granted under
             some legal theory. The complaint must be liberally
             construed, and the court should not dismiss the complaint
             unless it appears beyond a doubt that the plaintiff could
             not prove any set of facts to support his claim which would
             entitle him to relief.

Holleman v. Aiken, 193 N.C. App. 484, 491, 668 S.E.2d 579, 584-85 (2008) (citation

and quotation marks omitted).          The Court considers Plaintiff’s complaint “to

determine whether, when liberally construed, it states enough to give the substantive


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elements of a legally recognized claim.” Governors Club, Inc. v. Governors Club Ltd.

P’Ship, 152 N.C. App. 240, 246, 567 S.E.2d 781, 786 (2002) (internal citations

omitted), aff’d per curiam, 357 N.C. 46, 577 S.E.2d 620 (2003).

      Dismissal is warranted “(1) when the face of the complaint reveals that no law

supports plaintiffs’ claim; (2) when the face of the complaint reveals that some fact

essential to plaintiffs’ claim is missing; or (3) when some fact disclosed in the

complaint defeats plaintiffs’ claim.” Walker v. Sloan, 137 N.C. App. 387, 392, 529

S.E.2d 236, 241 (2000) (citation and quotation marks omitted).

      The complaint is reviewed in the light most favorable to the non-moving party.

Ford v. Peaches Entm’t Corp., 83 N.C. App. 155, 156, 349 S.E.2d 82, 83 (1986). “[T]he

trial court regards all factual allegations of the complaint as true. Legal conclusions,

however, are not entitled to a presumption of truth.” Walker, 137 N.C. App. at 392,

529 S.E.2d at 241. (citations omitted).

      This Court “conducts a de novo review of the pleadings to determine their legal

sufficiency and to determine whether the trial court’s ruling on the motion to dismiss

was correct.” Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App.

70, 74, 752 S.E.2d 661, 663-64 (2013) (citation omitted).

                                      B. Analysis

      To assert a claim for malicious prosecution, a plaintiff must establish four

elements: “that the defendant ‘(1) instituted, procured or participated in the criminal



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proceeding against [the] plaintiff; (2) without probable cause; (3) with malice; and (4)

the prior proceeding terminated in favor of [the] plaintiff.’” Hill v. Hill, 142 N.C. App.

524, 537, 545 S.E.2d 442, 451 (Tyson, J., dissenting) (citing Moore v. Evans, 124 N.C.

App. 35, 42, 476 S.E.2d 415, 421 (1996)), rev’d for the reasons stated in dissenting

opinion, 354 N.C. 348, 553 S.E.2d 679 (2001); see also Stanback v. Stanback, 297 N.C.

181, 202, 254 S.E.2d 611, 625 (1979). In cases for malicious prosecution in which the

earlier proceeding is civil, rather than criminal, in nature, our courts require a

plaintiff to additionally plead and prove a fifth element: “special damages.” See Dunn

v. Harris, 81 N.C. App. 137, 139, 344 S.E.2d 128, 129 (1986).

      In this case, the parties do not dispute Plaintiff’s complaint alleges the second,

third, and fourth elements of a malicious prosecution claim. The complaint on its face

alleges a proceeding was instituted against Plaintiff without probable cause, with

malice, and that the proceeding terminated in favor of Plaintiff.

      Plaintiff argues the trial court erred in dismissing his claim because the

allegations in his complaint were also sufficient to satisfy the first and fifth elements

of a malicious prosecution claim. Presuming, without deciding, the allegations of the

first were sufficient, we review whether Plaintiff’s complaint sufficiently alleged

special damages, the essential fifth element of malicious prosecution.

                                   Special Damages

      Our Supreme Court has held:



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               [W]hen the plaintiff’s claim for malicious prosecution is
               based on the institution of a prior civil proceeding against
               him he must show . . . that there was some arrest of his
               person, seizure of his property, or some other element of
               special damage resulting from the action such as would not
               necessarily result in all similar cases.

Stanback, 297 N.C. at 203, 254 S.E.2d at 625 (citations omitted). “[T]he requirement

that a plaintiff show some special damage resulting from a prior lawsuit filed against

him ‘is an essential, substantive element of the claim.’” Stikeleather v. Willard, 83

N.C. App. 50, 51, 348 S.E.2d 607, 608 (1986) (citing Stanback, 297 N.C. at 204, 254

S.E.2d at 626).

      Prior cases where our appellate courts have found special damages are

instructive:

               The gist of such special damage is a substantial
               interference either with the plaintiff’s person or his
               property such as causing execution to be issued against the
               plaintiff’s person, causing an injunction to issue
               prohibiting plaintiff’s use of his property in a certain way,
               causing a receiver to be appointed to take control of
               plaintiff's assets, causing plaintiff's property to be
               attached, or causing plaintiff to be wrongfully committed
               to a mental institution.

Stanback, 297 N.C. at 203, 254 S.E.2d at 625 (citations omitted).              A plaintiff’s

allegation that he “suffered injury to his reputation, embarrassment, loss of work and

leisure time and that he has incurred expenses in defending the claim” has been held

to be insufficient to show special damages. Stikeleather, 83 N.C. App. at 52, 348

S.E.2d at 608.


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      Plaintiff argues the assertions in his complaint sufficiently alleged special

damages. Plaintiff asserts the second paragraph in the Amended Complaint, drafted

by Defendant Moore, which alleges Plaintiff sexually assaulted B.F., branded him as

an “evil child molester,” injured his reputation and good name, and required him to

remove damaging information posted on the internet accusing him of a crime.

Plaintiff also argues an interference with his person occurred because he was

required to travel to, and attend, two hearings to defend the DVPO Case. We cannot

agree. Plaintiff’s allegations do not constitute or assert “special damages” as that

term has been interpreted by controlling precedents.

      This Court has held that injury to a plaintiff’s reputation and good name are

not special damages. Stikeleather, 83 N.C. App. at 52, 348 S.E.2d at 608. Removing

damaging information from the internet is a predictable result of alleged reputational

damage, and will almost always “necessarily result in all similar cases.” Stanback,

297 N.C. at 203, 254 S.E.2d at 625.

      Likewise, having to travel to defend oneself will necessarily be the result in

similar cases. Having to travel to court on two occasions is meaningfully different

from causing execution to be issued against a plaintiff’s person, causing a plaintiff to

be wrongfully committed to a mental institution, and the other instructive examples

of the kind of injuries which rise to special damages highlighted in Stanback. Id. at

203, 254 S.E.2d at 625.



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      Plaintiff has failed to allege special damages that are different from those

which would “necessarily result in all similar cases,” a substantive element of the

claim of malicious prosecution. Id. Plaintiff’s argument to the contrary is overruled.

The trial court’s ruling on Plaintiff’s malicious prosecution claim is affirmed.

                                 IV. Abuse of Process

      Plaintiff argues the trial court erred by allowing Defendants’ motion for

summary judgment as to his claim for abuse of process. We disagree.

                                A. Standard of Review

      Summary judgment is proper where:

             the pleadings, depositions, answers to interrogatories, and
             admissions on file, together with the affidavits, if any, show
             that there is no genuine issue as to any material fact and
             that any party is entitled to a judgment as a matter of law.

                   In a motion for summary judgment, the evidence
             presented to the trial court must be . . . viewed in a light
             most favorable to the non-moving party.

                    An issue is “genuine” if it can be proven by
             substantial evidence and a fact is “material” if it would
             constitute or irrevocably establish any material element of
             a claim or a defense.

                     A party moving for summary judgment may prevail
             if it meets the burden (1) of proving an essential element of
             the opposing party’s claim is nonexistent, or (2) of showing
             through discovery that the opposing party cannot produce
             evidence to support an essential element of his or her
             claim. Generally this means that on undisputed aspects of
             the opposing evidential forecast, where there is no genuine
             issue of fact, the moving party is entitled to judgment as a


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             matter of law. If the moving party meets this burden, the
             non-moving party must in turn either show that a genuine
             issue of material fact exists for trial or must provide an
             excuse for not doing so.

                  This Court reviews an order granting summary
             judgment de novo.

Hedgepeth v. Parker’s Landing Prop. Owners Ass’n, ___ N.C. App. ___, ___ S.E.2d ___,

2016 N.C. App. LEXIS 47, at *6-7 (COA15-683 decided 5 January 2016) (citations and

internal quotation marks omitted).

                                     B. Analysis

      Our Supreme Court has stated “abuse of process is the misuse of legal process

for an ulterior purpose.” Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398, 401

(1965). The claim “consists in the malicious misuse or misapplication of that process

after issuance to accomplish some purpose not warranted or commanded by the writ.”

Id. (emphasis original).

             [A]buse of process requires both an ulterior motive and an
             act in the use of the legal process not proper in the regular
             prosecution of the proceeding, and that both requirements
             relate to the defendant’s purpose to achieve through the
             use of the process some end foreign to those it was designed
             to effect. The ulterior motive requirement is satisfied when
             the plaintiff alleges that the prior action was initiated by
             defendant or used by him to achieve a collateral purpose
             not within the normal scope of the process used. The act
             requirement is satisfied when the plaintiff alleges that
             once the prior proceeding was initiated, the defendant
             committed some wilful act whereby he sought to use the
             existence of the proceeding to gain advantage of the
             plaintiff in respect to some collateral matter.


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Stanback, 297 N.C. at 201, 254 S.E.2d at 625 (emphasis original) (internal quotations

and citations omitted).

      Viewed in the light most favorable to Plaintiff, his complaint fails to show any

genuine issue of material fact, which would entitle him to relief on his claim of abuse

of process. The pleadings and other documents in the record show Plaintiff cannot

prove the second essential element of this claim.

      The second essential element to support an abuse of process claim is the “act

requirement,” which is satisfied when the plaintiff shows “that once the prior

proceeding was initiated, the defendant committed some wilful act whereby he sought

to use the existence of the proceeding to gain advantage of the plaintiff in respect to

some collateral matter.” Stanback, 297 N.C. at 201, 254 S.E.2d at 625 (emphasis

supplied). Here, Plaintiff’s complaint alleges Defendants sought “temporary custody

orders based upon the false allegations” in the DVPO case.

      While the Supplemental Pleading in the Child Custody Case makes reference

to and describes the underlying allegation of sexual abuse by Summer against

Plaintiff, the Supplemental Pleading itself does not mention the Amended Complaint

Defendant Moore drafted and signed in the DVPO Case. The record shows Summer

was not represented by Defendants in the Child Custody Case, but rather employed

a different attorney and law firm, Catherine F. Stalker Esq. (“Attorney Stalker”) and

Forrester Law Firm, to represent her in that proceeding.



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      Presuming, without deciding, Plaintiff made sufficient allegations to meet the

“ulterior motive” requirement of an abuse of process claim, the pleadings and other

documents clearly show Defendants did not commit “some wilful act” to use the

existence of the Amended Complaint in the DVPO Case to gain an advantage over

Plaintiff in a collateral proceeding, the Child Custody Case.

      While the allegations presented in the second paragraph of the Amended

Complaint were recounted in the Supplemental Pleading, the Amended Complaint is

not mentioned.     Further, it was Summer and Attorney Stalker, rather than

Defendants, who drafted the Supplemental Pleading containing the same allegations,

which was filed in the Child Custody Case. Plaintiff’s arguments are overruled.

                             Counsel’s Conduct and Duty

      Our holdings regarding Plaintiff’s failure to allege or show facts to support

essential elements of both claims presented in this appeal should not be construed as

condonation of Defendant Moore’s or any other attorney’s actions regarding these and

the related actions which, if true, may violate the North Carolina Rules of Civil

Procedure and the North Carolina Rules of Professional Conduct. See N.C. Gen. Stat.

§ 1A-1, Rule 11 (2013) (“The signature of an attorney. . . constitutes a certificate by

him that he has read the pleading. . . ; that to the best of his knowledge, information,

and belief formed after reasonable inquiry it is well grounded in fact[.] . . . If a

pleading. . . is signed in violation of this rule, the court. . . shall impose upon the



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person who signed it. . . an appropriate sanction[.]”) (emphasis supplied); N.C. Rev.

R. Prof. Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or

controvert an issue therein, unless there is a basis in law and fact for doing so that is

not frivolous.”); see also N.C. Rev. R. Prof. Conduct 3.1, cmt. [2] (“The filing of an

action or defense. . . taken for a client is not frivolous merely because the facts have

not first been fully substantiated[.] . . . What is required of lawyers, however, is that

they inform themselves about the facts of their clients’ cases. . . and determine that

they can make good faith arguments in support of their clients' positions.”) (emphasis

supplied).

                                     V. Conclusion

      The trial court properly granted Defendants’ motion to dismiss Plaintiff’s claim

for malicious prosecution. Presuming, without deciding, Plaintiff alleged sufficient

facts to satisfy the first four elements of a malicious prosecution claim, the damages

Plaintiff alleged in his complaint would “necessarily result in all similar cases.”

Stanback, 297 N.C. at 203, 254 S.E.2d at 625. These allegations do not rise to the

level of “special damages” required to support the essential fifth element of the claim

for malicious prosecution. Id.

      The trial court properly allowed Defendants’ motion for summary judgment on

Plaintiff’s claim for abuse of process. No genuine issue of material fact exists and the

pleadings clearly show Defendants did not willfully act to use the existence of the



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Amended Complaint to gain an advantage of Plaintiff in the Child Custody Case, a

collateral matter. Stanback, 297 N.C. at 201, 254 S.E.2d at 625. Defendants were

entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013).

      The orders and judgments of the trial courts are affirmed.

      AFFIRMED.

      Judges CALABRIA and DAVIS concur.




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