An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-652
                       NORTH CAROLINA COURT OF APPEALS
                               Filed:     1 April 2014
ROBERT AND JACKIE ARMSTRONG,
     Plaintiffs

                                                Wayne County
      v.
                                                No. 10 CVD 1815

GLADYS MARIE VELASQUEZ,
     Defendant


      Appeal by defendant from order entered 13 February 2013 by

Judge Charles P. Gaylor, III, in Wayne County District Court.

Heard in the Court of Appeals 7 November 2013.


      Strickland Lapas & Associates, by Dustin B. Pittman, for
      Plaintiffs.

      The Webster Law Firm, by Walter S. Webster, for Defendant.


      ERVIN, Judge.


      Defendant     Gladys     Marie     Velasquez      appeals   from    an   order

granting    summary     judgment    in    favor    of    Plaintiffs     Robert    and

Jackie     Armstrong    with    respect    to     the   claims    for    breach    of

contract and malicious prosecution that they asserted against

Defendant as the result of a series of events originating in a

dispute arising from a contract under which Plaintiffs rented a

tract of real property from Defendant on which a residence was
                                           -2-
situated     and     had   an    option    to    purchase    that      property.       On

appeal,      Defendant      contends      that    the   trial       court   erred     by

granting summary judgment in Plaintiffs’ favor with respect to

their breach of contract claim on the grounds that Plaintiffs

failed to exercise their option in an effective manner and that

the trial court’s damage award had not been properly calculated

and that the trial court erred by granting summary judgment in

Plaintiffs’ favor with respect to their malicious prosecution

claim on the grounds that the record reveals the existence of a

genuine issue of material fact with respect to the issue of

whether Defendant acted without probable cause and with malice.

After     careful    consideration        of    Defendant’s      challenges     to    the

trial court’s order in light of the record and the applicable

law, we conclude that the trial court’s order should be reversed

and   that    this    case      should    be    remanded    to   the    Wayne   County

District     Court    for    further      proceedings      not   inconsistent        with

this opinion.

                                I. Factual Background

                                A. Substantive Facts

      On 7 November 2003, Plaintiffs entered into a contract with

Defendant1 which provided that:

      1
      We are not entirely certain that either the actual contract
between the parties or the request for admissions to which
Defendant allegedly failed to respond were presented for the
                              -3-
         1.   [Defendant] agrees to allow [Plaintiffs
              to] rent the home and land (3.93 acare)
              [sic] at 404 Woodview for the period of
              four years.

         2.   [Plaintiffs] will pay the rent of
              $780.00 a month due on the 1st no later
              than the 5th of the month until ready to
              purchase   for   the  asking   price  of
              $119,000.000.

         3.   [Plaintiffs] will be responsible for
              all maintains [sic] and repairs with
              the exception of the central air unit
              for three months.

         4.   [Defendant]     agrees     to     allow
              [Plaintiffs] to cut back the tree line
              no more than 30 feet from [its] present
              area.

         5.   [Plaintiffs] agree to improve the home
              by painting, wall papering, remolding
              and landscaping as needed at their own
              expense.

         6.   At the time to purchase the home all
              money paid toward principal into rent
              plus   deposit  of   $1000.00  will be
              applied as down payment at closing.

         7.   If [Plaintiffs] decide not to buy the
              home and land, all money will be
              considered rent and the deposit of
              $1000.000 will be refunded.

trial court’s consideration at the hearing held in connection
with Plaintiffs’ summary judgment motion.   However, given that
there does not appear to be any dispute that the documents that
have been presented for our review on appeal are genuine, given
that we would reach the same result even if we elected not to
consider these documents, and given that a decision to consider
these documents will help us to provide better guidance to the
trial court on remand, we have determined that we should
consider these documents in the course of resolving the matters
at issue between the parties on appeal.
                                    -4-


After entering into the contract, Plaintiffs made a total of 48

rent payments in the amount of $780 per month, resulting in a

total payment of $37,440.      In addition, Plaintiffs spent a total

of $8,123 while improving the property.                 However, Plaintiffs

lost the right to purchase the property from Defendant as the

result of a foreclosure stemming from Defendant’s failure to

make   the   payments   required    under   a   note    and   deed    of   trust

applicable to the property.

       On 3 June 2009, Defendant obtained the issuance of warrants

for arrest charging Ms. Armstrong with misdemeanor larceny in

File   No.   09-CR-53477.     The    misdemeanor       larceny   charge     that

Defendant had lodged against Ms. Armstrong was dismissed because

Defendant failed to appear and because a similar claim had been

dismissed with prejudice in a civil action.               A similar warrant

for arrest charging Mr. Armstrong with misdemeanor larceny and

injury to real property was issued in File No. 09-CR-55791 on 2

October 2009 at Defendant’s request.             The misdemeanor larceny

and damage to real property charges that Defendant had lodged

against Mr. Armstrong were dismissed because Defendant failed to

appear and because of the two previous dismissals.                   Plaintiffs

claimed to have suffered humiliation, mental suffering, and loss

of time and to have incurred attorneys’ fees and court costs as
                                           -5-
a   result     of    Defendant’s       decision    to     initiate     these       criminal

proceedings against them.

                                B. Procedural Facts

       On 30 July 2010, Plaintiffs filed a complaint seeking to

recover      damages     from       Defendant    on     the   basis     of        breach    of

contract and malicious prosecution claims.                     On 28 February 2011,

Defendant filed a responsive pleading in which she sought to

have    Plaintiffs’       complaint        dismissed,         denied        the    material

allegations of Plaintiffs’ complaint, and asserted the statute

of frauds and equitable estoppel as affirmative defenses.                              On 6

November       2012,     Plaintiffs       served      a    set    of        requests       for

admissions upon Defendant.               On 2 January 2013, Plaintiffs filed

a motion, which was accompanied by an unverified copy of their

complaint, a copy of a discovery request that Plaintiffs had

served upon Defendant, and affidavits signed by both Plaintiffs,

seeking the entry of summary judgment in their favor.

       After        holding     a     hearing     concerning          the     merits        of

Plaintiffs’ motion on 4 February 2013, the trial court entered

an order on 13 February 2013 granting Plaintiffs’ motion for

summary      judgment     and       requiring    Defendant       to    pay    $46,563       in

compensatory         damages        stemming     from     Plaintiffs’         breach        of

contract claim and $10,000 in compensatory damages stemming from
                                           -6-
Plaintiffs’     malicious      prosecution        claim.           Defendant        noted   an

appeal to this Court from the trial court’s order.

                               II. Legal Analysis

                              A. Standard of Review

      Summary judgment is proper “if 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.”                    N.C. Gen. Stat. § 1A-1, Rule

56(c).     In reviewing an order granting summary judgment, our

task is to “determine, on the basis of the materials presented

to the trial court, whether there is a genuine issue as to any

material    fact      and   whether   the        moving    party         is   entitled      to

judgment as a matter of law.”                Coastal Plains Utils., Inc. v.

New Hanover Cnty., 166 N.C. App. 333, 340, 601 S.E.2d 915, 920

(2004) (citing Oliver v. Roberts, 49 N.C. App. 311, 314, 271

S.E.2d 399, 401 (1980), cert. denied, __ N.C. __, 276 S.E.2d 283

(1981)).        The   evidence      that    may    be     considered          in    deciding

whether to grant or deny a summary judgment motion “includes

admissions in the pleadings, depositions on file, answers to . .

.   interrogatories,        admissions      on    file    .    .    .,    and      any   other

material    which     would    be   admissible       in       evidence        or   of    which

judicial    notice     may    properly      be    taken.”           Kessing        v.    Nat’l
                                       -7-
Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971).

Although “‘[a] verified complaint may be treated as an affidavit

if it (1) is made on personal knowledge, (2) sets forth such

facts     as    would    be   admissible     in   evidence,   and   (3)    shows

affirmatively that the affiant is competent to testify to the

matters    stated       therein,’”   Merritt,     Flebotte,   Wilson,     Webb   &

Caruso, PLLC v. Hemmings, 196 N.C. App. 600, 605, 676 S.E.2d 79,

83-84 (quoting Page v. Sloan,              281 N.C. 697, 705, 190 S.E.2d

189, 194 (1972)), disc. review denied, 363 N.C. 655, 686 S.E.2d

518 (2009), “the trial court may not consider an unverified

pleading when ruling on a motion for summary judgment.”                    Allen

R. Tew, P.A. v. Brown, 135 N.C. App. 763, 767, 522 S.E.2d 127,

130 (1999), disc. review improvidently allowed, 352 N.C. 145,

531 S.E.2d 213 (2000).

               When a motion for summary judgment is made
               and supported as provided in this rule, an
               adverse party may not rest upon the mere
               allegations or denials of his pleading, but
               his response, by affidavits or as otherwise
               provided in this rule, must set forth
               specific facts showing that there is a
               genuine issue for trial. If he does not so
               respond, summary judgment, if appropriate,
               shall be entered against him.

N.C. Gen. Stat. § 1A-1, Rule 56(e).               In order for this principle

to become applicable, however, the moving party must “show the

lack of a triable issue of fact and . . . that he is entitled to

judgment as a matter of law.”           Moore v. Crumpton, 306 N.C. 618,
                                          -8-
624, 295 S.E.2d 436, 441 (1982) (citing Oestreicher v. Am. Nat’l

Stores, Inc., 290 N.C. 118, 131, 225 S.E.2d 797, 806 (1976),

mod. on other grounds in Green v. Duke Power Co., 305 N.C. 603,

606-08, 290 S.E.2d           593, 595-96 (1982)).2              “All inferences of

fact       from   the   proofs   offered    at    the   hearing     must       be   drawn

against       the   movant   and   in    favor    of    the    party     opposing    the

motion.”          Boudreau v. Baughman, 322 N.C. 331, 343, 368 S.E.2d

849, 858 (1988) (citing Page, 281 N.C. at 706, 190 S.E.2d at

194).        As a result of the fact that “[s]ummary judgment is a

‘somewhat drastic remedy,’” Phelps-Dickson Builders, L.L.C. v.

Amerimann Partners, 172 N.C. App. 427, 434-35, 617 S.E.2d 664,

669 (2005) (quoting Kessing, 278 N.C. at 534, 180 S.E.2d at

830), trial courts should avoid granting summary judgment except

in   appropriate        cases.     A    trial    court’s      decision    to    grant   a

summary judgment motion is reviewed by this Court on a de novo

basis.       Va. Elec. & Power Co. v. Tillett, 80 N.C. App. 383, 385,



       2
      Although Plaintiffs attempt to dissuade us from even
considering Defendant’s challenges to the trial court’s order on
the grounds that the arguments that she now advances were not
presented to the trial court, we are not persuaded to act in the
manner that Plaintiffs have suggested given that Defendant did
appear at the hearing held with respect to Plaintiffs’ summary
judgment motion, that we have not been presented with any
transcript of the proceedings held before the trial court, and
that Plaintiffs at all times retained the obligation to
establish the absence of a genuine issue of material fact as a
prerequisite for obtaining the entry of summary judgment in
their favor.
                                                -9-
343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457

(1986).

     An award of summary judgment is appropriate in a contract

case “when the language of a contract is not ambiguous [and] no

factual issue appears.”                  Metcalf v. Black Dog Realty, LLC, 200

N.C. App. 619, 633, 684 S.E.2d 709, 719 (2009).                                “A contract

which is plain and unambiguous on its face will be interpreted

as a matter of law by the court”; on the other hand, ”[i]f the

agreement is ambiguous,” “interpretation of the contract is a

matter    for        the   jury.”         Dockery       v.    Quality      Plastic   Custom

Molding, Inc., 144 N.C. App. 419, 421-22, 547 S.E.2d 850, 852

(2001).         “The       trial     court’s         determination      of    whether     the

language in a [contract] is ambiguous is a question of law . . .

.”   Duke Energy Corp. v Malcolm, 178 N.C. App. 62, 65, 630

S.E.2d 693, 695 (citing Bicket v. McLean Sec., Inc., 124 N.C.

App. 548, 553, 478 S.E.2d 518, 521 (1996), disc. review denied,

346 N.C. 275, 487 S.E.2d 538 (1997)), aff’d, 361 N.C. 111, 637

S.E.2d 538 (2006).                 “An ambiguity exists in a contract when

either    the    meaning      of     words      or    the    effect   of     provisions    is

uncertain       or    capable       of    several      reasonable     interpretations.”

Register    v.       White,    358       N.C.   691,     695,   599     S.E.2d   549,     553

(2004).

                            B. Breach of Contract Claim
                                              -10-
    In     their     first       challenge       to     the    trial     court’s        order,

Defendant    contends          that     the     trial      court     erred    by   granting

summary    judgment       in    Plaintiffs’          favor    with    respect      to    their

breach of contract claim.               More specifically, Defendant contends

that the trial court erroneously granted summary judgment in

favor of Plaintiffs given that the record developed before the

trial     court     contained         no      evidence       tending     to     show     that

Plaintiffs ever properly exercised the option contained in the

parties’    agreement          even     though       the     alternative      of   properly

exercising the option was left open for a reasonable time and

given that the trial court erroneously allowed Plaintiffs to

recover     their    rental        payments          and     their    expenditures         for

maintenance of and improvements to the property as damages with

respect     to    their        breach      of    contract       claim.         Defendant’s

arguments have merit.

            “An option to purchase real property may be
            defined as a contract by which an owner of
            real property agrees with another person
            that the latter shall have the privilege of
            buying the property at a specified price
            within a specified time, or within a
            reasonable time in the future, and which
            imposes no obligation to purchase upon the
            person to whom it is given.        Until the
            holder or owner of an option for the
            purchase of property exercises it, he has
            nothing but a mere right to acquire an
            interest, and has neither the ownership of
            nor any interest in the property itself.”
                                     -11-
Sandlin v. Weaver, 240 N.C. 703, 707, 83 S.E.2d 806, 809 (1954)

(quoting 55 Am. Jur., Vendor and Purchaser § 27).                  In the event

that an option or contract to purchase, like the option contract

at issue here, does not specify the time within which the right

to buy may be exercised, the right must be exercised within a

reasonable time, Lewis v. Allred, 249 N.C. 486, 490, 106 S.E.2d

689, 692 (1959), with time being of the essence of an option

contract, Douglass v. Brooks, 242 N.C. 178, 185, 87 S.E.2d 258,

263 (1955), and with the determination of whether an option was

exercised within a reasonable time being a mixed question of law

and fact unless the relevant facts are simple and do not permit

the trier of fact to reach more than one determination.                  Yancey

v. Watkins, 17 N.C. App. 515, 519-20, 195 S.E.2d 89, 93, cert.

denied,   283   N.C.   394,   196    S.E.2d      277     (1973).     Similarly,

“‘[w]here no terms are stated, it would seem that the contract

should be interpreted to mean payment in cash since this would

be in accord with common practice.’”              Kidd v. Earley, 289 N.C.

343, 359, 222 S.E.2d 392, 403 (1976) (quoting T. Christopher,

Options to Purchase Real Property in North Carolina, 44 N.C.L.

Rev. 63, 72 (1965)).

    Although the parties agree that a valid option agreement

existed between them, the record contains conflicting evidence

concerning   the   extent,    if    any,    to   which    Plaintiffs   properly
                                                -12-
exercised their rights under that agreement in a timely manner.

On the one hand, Defendant contends that Plaintiffs’ failure to

tender      the    $119,000       purchase       price        within    a     reasonable        time

meant that they failed to exercise their option to purchase the

property in a proper manner and cannot successfully maintain a

breach      of     contract        action       against         her     for     that     reason.

Plaintiffs,         on    the     other      hand,      contend       that    the     fact      that

Defendant         allowed    a    creditor       to     foreclose       upon     the     property

before      the     expiration         of    the       time    within       which     they      were

entitled to exercise their rights under the option obviated the

necessity         for     them    to     make      a    showing        that    they      properly

exercised the option in a timely manner.                               However, given that

the record does not contain any evidence concerning the date on

which Defendant defaulted on her obligations relating to the

property, the date upon which the foreclosure proceeding was

instituted or completed, the date upon which the foreclosure

sale took place, or the date upon which Plaintiffs learned that

any   of    these        events    had      occurred      or    were    occurring,        we    are

simply unable to determine whether Plaintiffs failed to properly

exercise their rights under the option contract in a timely

manner      or     whether       Defendant’s           conduct    deprived       them      of    an

adequate opportunity to do so.3

      3
          Although       Defendant       contends       that     “a    period       of   eighteen
                                         -13-
       Aside from the fact that the record discloses the existence

of genuine issues of material fact concerning the extent to

which    Plaintiffs     properly      exercised         their   rights     under    the

option agreement in a timely manner or were deprived of the

ability to do so by Defendant’s conduct, the record discloses

the existence of an even more fundamental factual issue that

must be resolved in order for their relative rights under the

option agreement to be properly adjudicated.                      On the one hand,

Plaintiffs argue that, since the option contract provided that

they would pay rent “until [they were] ready to purchase [the

home]    for    the   asking     price     of     $119,000.00,”     the     agreement

between      the   parties     allowed     them    to    exercise    their     rights

whenever       they   were    ready   to    do     so    rather    than    within    a

“reasonable time.”           On the other hand, Defendant argues that the

fact that the option agreement provided that the property would

only    be   rented    “for     the   period      of    four    years”    contradicts

Plaintiffs’ contention that they had an indefinite period within


months or a year-and-a-half elapsed between the last payment of
rent on 7 November 2007 and foreclosure on 14 May 2009,” the
date of foreclosure upon which Defendant relies stems from
allegations asserted in Plaintiffs’ unverified complaint that
Defendant declined to admit in her answer.     As a result, the
evidentiary   forecast   presented  for    the   trial  court’s
consideration simply does not establish the validity of either
party’s position concerning the issue of whether Plaintiffs
failed to properly exercise their rights under the option in a
timely manner or were deprived of the ability to do so by
Defendant’s conduct.
                                         -14-
which to exercise their right to purchase the property.                        On the

basis    of   the    present    record,     we    are    unable    to    reach       any

conclusion     other     than     that     either    position      rests      upon     a

reasonable     interpretation         of    the     language      of    the    option

agreement     and      that     the      presence       of   these      potentially

inconsistent        contractual    provisions       suffices      to    render       the

option agreement ambiguous, effectively creating another issue

of fact that must be resolved before the relative rights of the

parties under that agreement can be established.                       As a result,

for both of these reasons, we conclude that the trial court

erred by granting summary judgment in favor of Plaintiffs with

respect to their breach of contract claim.4

                          C. Malicious Prosecution

     Secondly, Defendant contends that the trial court erred by

granting summary judgment in favor of Plaintiffs with respect to

their malicious prosecution claim on the grounds that the record
     4
      Aside from the issues highlighted in the text of this
opinion, we note the existence of other factual issues that may
have some bearing upon the proper resolution of Plaintiffs’
breach of contract claim, such as the fact that the record does
not establish the date upon which Plaintiffs apparently ceased
making rental payments or the factors that led them to cease
making those payments. Moreover, without making any conclusive
determination concerning the lawfulness of the damage award
approved   in  the   trial  court’s   order,   we   question the
appropriateness of the trial court’s decision to include the
amount of their rental payments and the       entire amount that
Plaintiffs paid to improve the property in calculating the
amount of damages that Plaintiffs were entitled to receive in
compensation for Defendant’s alleged breach of contract.
                                             -15-
discloses the existence of a genuine issue of material fact

concerning     the     extent    to        which    Defendant     initiated       criminal

proceedings against Plaintiffs in the absence of probable cause

and   with    malice.         Once     again,       we   believe      that    Defendant’s

argument has merit.

      The maintenance of a successful malicious prosecution claim

requires      the    plaintiff        to     show     that    “(1)    [the]       defendant

initiated the earlier proceeding; (2) malice on the part of

[the] defendant in doing so; (3) [a] lack of probable cause for

the initiation of the earlier proceeding; and (4) termination of

the earlier proceeding in favor of the plaintiff.”                           Best v. Duke

Univ.,   337    N.C.    742,     749,       448     S.E.2d    506,    510    (1994).      A

defendant has probable cause to initiate a criminal proceeding

against the plaintiff for purposes of a malicious prosecution

action   in    the    event     that       the     defendant    was    aware      of   “‘the

existence      of    such    facts         and     circumstances,       known     to   [the

defendant] at the time, as would induce a reasonable man to

commence a prosecution.’”                  Cook v. Lanier, 267 N.C. 166, 170,

147 S.E.2d 910, 914 (1966) (quoting Morgan v. Stewart, 144 N.C.

424, 430, 57 S.E. 149, 151 (1907)).                          Although the absence of

probable      cause    and      the    existence         of    malice       are   separate

components of a malicious prosecution claim, “implied malice may

be inferred from want of probable cause in reckless disregard of
                                             -16-
plaintiff’s rights.”            Pitts v. Village Inn Pizza, 296 N.C. 81,

86-87, 249 S.E.2d 375, 379 (1978), clarified in Best, 337 N.C.

at   751,   448       S.E.2d   at     511.     For     that    reason,      “constructive

malice may be inferred from want of probable cause and reckless

disregard        of     plaintiff’s          rights     under     reasonable        notice

thereof.”        Taylor v. Hodge, 229 N.C. 558, 560, 50 S.E.2d 307,

308 (1948).        On the other hand, while “[i]t is true that malice,

in   the    sense       the    term     is    used     in     actions      for   malicious

prosecution, may be inferred from want of probable cause, . . .

it is not presumed from such fact alone.”                             Mitchem v. Nat.

Weaving Co., 210 N.C. 732, 733, 188 S.E.2d 329, 329 (1936).

      In the affidavits that they offered in support of their

request for the entry of summary judgment in their favor with

respect     to     their       malicious       prosecution       claims,         Plaintiffs

forecast     evidence         that    Defendant       initiated       criminal     charges

against     them      and   that     both    charges    or     sets   of    charges   were

dismissed based upon Defendant’s failure to appear and the fact

that the issues before the court in those criminal cases had

already been addressed in prior civil or criminal cases.5                             As a

      5
      Although the parties have extensively discussed the extent
to which certain inconsistencies between the information
contained in Plaintiffs’ complaint and in Plaintiffs’ affidavits
concerning the exact charges that Defendant initiated against
Plaintiffs suffice to preclude an award of summary judgment in
Plaintiffs’ favor with respect to the malicious prosecution
issue, we need not resolve that dispute given our determination
                                            -17-
result, the undisputed evidence presented for the trial court’s

consideration         at    the    summary       judgment       hearing     shows     that

criminal proceedings were initiated against both Plaintiffs and

that those cases were terminated in Plaintiffs’ favor.                               E.g.,

Cook, 267 N.C. at 170, 147 S.E.2d at 913 (holding that “[t]he

dismissal of the criminal proceeding . . . by reason of the

failure     of    the      complainant      to     appear      and    prosecute      is     a

sufficient        termination        thereof       to     support     an    action        for

malicious prosecution based thereon”).                        As a result, the only

remaining        question     that     we    must        resolve      is   whether        the

undisputed evidence contained in the present record sufficed to

show    that       Defendant       initiated            the   criminal      proceedings

underlying Plaintiffs’ malicious prosecution claims with malice

and without probable cause.

       In support of their contention that the undisputed evidence

established       a   lack    of   probable        cause      and    the   existence      of

malice, Plaintiffs rely on Defendant’s failure to respond to

their requests for admissions, one of which requested Defendant

to admit that:

            you failed to truly assess the basis,
            specifically for probable cause, for your
            criminal   matter   against  the   Plaintiff
            following the first dismissal of her action,

that the trial court erred by granting summary judgment in
Plaintiffs’ favor with respect to their malicious prosecution
claims on other grounds.
                                        -18-
            09 CR 52832, by prosecutors.

According to well-established North Carolina law, a matter “is

admitted unless, within 30 days after service of the request

. . . the party to whom the request is directed serves upon the

party requesting the admission a written answer or objection.”

N.C. Gen. Stat. § 1A-1, Rule 36(a); see also Town of Chapel Hill

v. Burchette, 100 N.C. App. 157, 162, 394 S.E.2d 698, 701 (1990)

(stating     that,    “[i]n   order       to    avoid    having        requests    for

admissions    deemed    admitted,     a   party    must      respond     within    the

period of the rule if there is any objection whatsoever to the

request”).        As a result, given that Defendant appears to have

failed to respond to Plaintiffs’ requests for admissions, we are

required to assume for the purpose of deciding the issues raised

by   Defendant’s      challenge    to     the    trial       court’s     order    that

Defendant “failed to truly assess the basis, specifically for

probable cause,” for the criminal charges that she initiated

against Plaintiffs.

     Although       Plaintiffs    contend       that     a    determination       that

Defendant failed to adequately investigate the validity of the

charges that she initiated against them conclusively establishes

that Defendant acted maliciously and lacked probable cause, we

are not persuaded by that argument.                     In essence, Plaintiffs

assume     that     Defendant’s     failure       to     conduct       an   adequate
                                     -19-
investigation establishes that Defendant’s claim lacked adequate

factual support, an argument which, we believe, confuses proof

of a deficiency in the procedures that Defendant utilized before

initiating criminal proceedings against Plaintiffs with proof of

a substantive deficiency in the validity of the charges that

Defendant brought against Plaintiffs.              Simply put, we do not

believe that the mere fact that a litigant failed to conduct an

adequate   investigation        before   initiating   criminal   proceedings

against    someone       else    conclusively      establishes     that     the

litigant’s claim was baseless.            Thus, the evidentiary forecast

that Plaintiffs provided to the trial court did not, in fact,

establish that Defendant lacked probable cause at the time that

she initiated criminal charges against Plaintiffs.

    In addition, even if we were to assume that the evidentiary

forecast that Plaintiffs presented to the trial court sufficed

to establish a lack of probable cause, we are not persuaded

that, at least in this instance, Plaintiffs forecast sufficient

evidence to support a determination that Defendant acted with

malice.    Although, as we have already noted, a trier of fact may

infer “constructive malice . . . from want of probable cause and

reckless disregard of [a] plaintiff’s rights under reasonable

notice thereof,” Taylor, 229 N.C. at 560, 50 S.E.2d at 308,

“[t]he    absence   of   probable    cause    is   not   the   equivalent   of
                                         -20-
malice,    nor    does    it   establish      malice     per    se,    though    it    is

evidence from which malice may be inferred,” so that “[t]he

presence    or    absence      of   malice    in   its    final       analysis    is   a

question of fact to be determined by the jury, while probable

cause is a mixed question of law and fact.”)                    Turnage v. Austin,

186 N.C. 266, 268, 119 S.E. 359, 361 (1923).                      In other words,

while a showing that Defendant acted in the absence of probable

cause would support a jury determination that she acted with

malice,    it    does    not   suffice   to     support    an   award     of    summary

judgment in Plaintiffs’ favor with respect to the malice issue.

As a result, since the record reveals the existence of a genuine

issue of material fact concerning the extent to which Defendant

initiated criminal proceedings against Plaintiffs with malice

and without probable cause, the trial court erred by granting

summary judgment in favor of Plaintiffs with respect to their

malicious prosecution claim.6

     6
      Although we need not address the damages issue in any
detail given our decision to reverse the trial court’s decision
to grant summary judgment in Plaintiffs’ favor with respect to
their malicious prosecution claim on liability-related grounds,
we note that the trial court awarded Plaintiffs $10,000 in
compensatory damages with respect to that claim based solely on
Plaintiffs’ conclusory assertions that they had “suffered
humiliation, mental suffering, loss of time, attorney’s fees and
court costs” and had “been damaged in the amount of $10,000.00.”
At an absolute minimum, there is serious question about the
extent to which such conclusory assertions provided adequate
support for the damage award contained in the trial court’s
summary judgment order.
                                   -21-
                             III. Conclusion

    Thus, for the reasons set forth above, we conclude that the

trial   court   erred   by   granting    summary   judgment   in   favor   of

Plaintiffs with respect to both their breach of contract and

malicious prosecution claims.           As a result, the trial court’s

order should be, and hereby is, reversed and this case should

be, and hereby is, remanded to the Wayne County District Court

for further proceedings not inconsistent with this opinion.

    REVERSED and REMANDED.

    Judges GEER and STEPHENS concur.

    Report per Rule 30(e).
