An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1216
                         NORTH CAROLINA COURT OF APPEALS
                                Filed:    19 August 2014
JUSTICE, HUGH,
     Plaintiff

                                                      McDowell County
      v.
                                                      No. 11-CVS-1014

MAYES, LINDA,
     Defendant


      Appeal by plaintiff from judgment entered 28 March 2013 by

Judge Gary M. Gavenus in McDowell County Superior Court.                      Heard

in the Court of Appeals 4 March 2014.


      Hugh Justice, pro se.

      No appellee brief filed.


      ERVIN, Judge.


      Plaintiff     Hugh    Justice       appeals    from   a   judgment    entered

based    upon   a   jury    verdict       awarding     Plaintiff   $3,314.00      in

compensatory     damages.          On    appeal,    Plaintiff   argues     that   the

trial court erred by requiring the jury to establish a damage

award   based    solely     upon    his    claim    for   malicious   prosecution

instead of allowing the jury to award damages based upon claims

for   other     causes     of    action,     such    as   defamation,    which     he
                                         -2-
contends were established by Defendant’s failure to respond to

certain requests for admission.                After careful consideration of

Plaintiff’s challenge to the trial court’s judgment in light of

the record and the applicable law, we conclude that the trial

court’s judgment should be affirmed.

                              I. Factual Background

       Plaintiff       and   Defendant   Linda     Susan   Mayes,   a/k/a   Linda

Hendrix, a/k/a Linda Mayes McPeters, reside in McDowell County

and live adjacent to each other.                 On approximately 2 December

2010, Defendant asserted that Plaintiff had grabbed her by the

arm and thrown her in a ditch.            Subsequently, Defendant asserted

that Plaintiff had threatened to “cut her throat and burn her

house down with her in it.”               Although Defendant procured the

issuance of warrants charging Plaintiff with simple assault and

communicating threats,1 these charges were dismissed by the trial

court when Defendant was unable to prove her accusations.

       On 24 November 2011, Plaintiff filed a complaint alleging

that       he   was   entitled   to   recover    damages   from   Defendant   for




       1
      Although the record before us is not entirely clear with
respect to this issue, we assume that the communicating threats
charge upon which Plaintiff’s claim was based stemmed from
Defendant’s statement that Plaintiff had threatened to cut her
throat and burn down her house.
                                         -3-
malicious prosecution,2 with his damage claim including a request

for an award of $150,000 in compensatory damages and an award of

punitive damages in an amount to be determined by the jury.                          In

his       complaint,       Plaintiff     alleged     that     the        assault    and

communicating        threats      warrants   that    Defendant      had    sworn    out

against him lacked any legitimate factual basis and had been

obtained with the intent to harm Plaintiff’s reputation.

      On 14 December 2011, Defendant filed an answer in which she

denied      the     material      allegations       set    out      in    Plaintiff’s

complaint.          On 6 August 2012, Plaintiff served an extensive

request for admissions on Defendant.                 In view of the fact that

Defendant         failed     to   respond      to   Plaintiff’s          request    for

admissions, the factual assertions set out in that discovery

request were deemed to have been judicially admitted.

      On     26    October    2012,    Plaintiff     moved    for    the    entry   of

summary judgment in his favor, with this request being based on

Defendant’s failure to respond to his request for admissions.

According      to    the    assertions    advanced    in     Plaintiff’s      motion,

Defendant’s admissions established the existence of the showing

required to support a recovery for defamation, private nuisance,

      2
      In spite of the fact that Plaintiff made reference to a
defamation action in the caption of his complaint, the actual
allegations set out in that pleading, which was filed pro se,
clearly reflect an attempt to allege a claim for malicious
prosecution.
                                               -4-
and    intentional           infliction       of    emotional         distress.      Defendant

neither        responded       to    Plaintiff’s       summary         judgment    motion    nor

appeared at the 6 November 2012 hearing held for the purpose of

considering        Plaintiff’s            motion.      On    28       November    2012,    Judge

Laura J. Bridges entered an order granting summary judgment in

Defendant’s favor.

       As a result of the need for a proper determination of the

amount of damages that Plaintiff was entitled to recover from

Defendant, this case came on for hearing before the trial court

and a jury at the 21 February 2013 civil session of the McDowell

County Superior Court.                    Once again, Defendant failed to appear.

At trial, Plaintiff unsuccessfully argued that he was entitled

to    recover     damages       on     the    basis    of    a     number    of   substantive

claims,         such     as         defamation,       in         addition    to      malicious

prosecution.           After the presentation of Plaintiff’s evidence and

the     delivery        of    the     trial        court’s       instructions,       the    jury

returned a verdict awarding Plaintiff $3,314.00 in compensatory

damages and declining to award Plaintiff any punitive damages.3

       After      the    return       and    acceptance          of   the   jury’s    verdict,

Plaintiff filed a motion for new trial pursuant to N.C. Gen.

Stat.      §   1A-1,    Rule        59.      Following       a    hearing    concerning      the

       3
      At trial, Plaintiff presented evidence that he had incurred
$3,314.00 in costs as a result of the fact that Defendant
prosecuted him for assault and communicating threats.
                                             -5-
merits of Plaintiff’s motion held at the 26 March 2013 civil

session    of    McDowell          County   Superior     Court,       the   trial     court

entered an order denying Plaintiff’s motion for new trial on 26

March    2013    and    a     judgment      ordering    that     Plaintiff      have      and

recover $3,314.00 from Defendant on 28 March 2013.                             Plaintiff

noted an appeal to this Court from the trial court’s judgment.

                        II. Substantive Legal Analysis

     In    the    sole       argument       advanced    in    his     brief,   Plaintiff

argues that the trial court erred by refusing to allow the jury

to award him damages on the basis of claims other than malicious

prosecution, such as defamation.4                   In support of that contention,

Plaintiff   argues          that    Defendant’s       failure    to     respond      to   his

request for admissions established the validity of claims other

than malicious prosecution and that the trial court should have

allowed the jury to base its damage award on these additional

claims    rather       than    limiting       his    damage     award    to    one    which

compensated      him     for       having    been     maliciously       prosecuted        for

assault and communicating threats.                     Plaintiff’s argument lacks

merit.

                               A. Standard of Review
     4
      In his brief, Plaintiff asserts that the admissions to
which Defendant failed to respond established that he had
twenty-six valid claims against Defendant in addition to
malicious prosecution.  However, the only specific additional
claim that Plaintiff discusses in his brief is one for
defamation.
                                         -6-
       Although the form and number of the issues submitted to the

jury is, as a general proposition, within the sound discretion

of the trial court, Wilson v. Pearce, 105 N.C. App. 107, 112,

412 S.E.2d 148, 150, disc. review denied, 331 N.C. 291, 417

S.E.2d 72 (1992), the trial court is required “to instruct the

jury upon the law with respect to every substantial feature of

the    case”    that    arises   upon    the     evidence.      Mosley   &   Mosley

Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361 S.E.2d

608, 612 (1987), cert. dismissed, 322 N.C. 607, 370 S.E.2d 416

(1988).       As a result, “[i]f a party contends that certain acts

or omissions constitute a claim for relief or a defense against

another, the trial court must submit the issues with appropriate

instructions if there is evidence which, when considered in the

light most favorable to the proponent, will support a reasonable

inference of each essential element of the claim or defense

asserted.”       Cockrell v. Cromartie Transp. Co., 295 N.C. 444,

449,    245    S.E.2d    497,    500    (1978)     (citations    omitted).       “A

specific       jury    instruction      should     be   given    when    ‘(1)   the

requested instruction was a correct statement of law and (2) was

supported by the evidence, and that (3) the instruction given,

considered in its entirety, failed to encompass the substance of

the law requested[,]            and (4) such failure likely misled the

jury.’”       Outlaw v. Johnson, 190 N.C. App. 233, 243, 660 S.E.2d
                                         -7-
550, 559 (2008) (quoting Liborio v. King, 150 N.C. App. 531,

534, 564 S.E.2d 272, 274, disc. review denied, 356 N.C. 304, 570

S.E.2d   726    (2002)).         On    the   other   hand,    “when   the    issues

submitted cover the factual matters disputed under the pleadings

and enable the parties to fairly present their contentions in

regard   to    them    it   is   not    error   to   refuse    to   submit   other

issues.”      Nolen Concrete Supply, Inc. v. Buchanan, 78 N.C. App.

409, 411, 337 S.E.2d 129, 130 (1985).                We review challenges to

the legal correctness of a trial court’s jury instructions using

a de novo standard of review.                State v. Osorio, 196 N.C. App.

458, 466, 675 S.E.2d 144, 149 (2009).

                B. Validity of Trial Court’s Instructions

                        1. Relevant Legal Principles

    “The most fundamental tenet of modern pleading rules is

that the pleadings should give ‘sufficient notice of the claim

asserted to enable the adverse party to answer and prepare for

trial . . . and to show the type of case brought.’”                   Holloway v.

Wachovia Bank & Trust Co., N.A., 339 N.C. 338, 347, 452 S.E.2d

233, 238 (1994) (quoting Sutton v. Duke, 277 N.C. 94, 102, 176

S.E.2d   161,    165    (1970)    (internal     quotation      omitted)).      “‘A

plaintiff must make out his case secundum allegata,’” so that

“‘[t]here can be no recovery except on [a] case made by [the]

pleadings,’” with “‘[p]roof without allegation [being] no better
                                              -8-
than allegation without proof.’”                    Moody v. Kersey, 270 N.C. 614,

618, 155 S.E.2d 215, 218 (1967) (quoting Andrews v. Bruton, 242

N.C. 93, 95, 86 S.E.2d 786, 788 (1955)).                           As a result, in most

instances, the trial court’s judgments must be based upon issues

raised   in    the   party’s       pleadings         and    supported       by     sufficient

record evidence.

      In recognition of the fact that he failed to allege any

substantive      claim       in        his    complaint          other    than     malicious

prosecution,     Plaintiff         argues       that      the    other    claims     that    he

contends that the trial court should have allowed the jury to

consider      were   properly          before    the       court    and     jury    under    a

“litigation by consent” theory.                  According to that theory, “when

a non-objecting party allows evidence to be presented at trial

outside the scope of the pleadings, the pleadings are deemed

amended to conform to the evidence, and no formal amendment is

required.”       McDevitt         v.    Stacy,      148    N.C.    App.     448,    455,    559

S.E.2d 201, 208 (2002) (citing Roberts v. Memorial Park, 281

N.C. 48, 59, 187 S.E.2d 721, 727 (1972)).                         As a result, “‘[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[,]’” Taylor

v.   Gillespie,      66     N.C.       App.   302,     304,       311    S.E.2d     362,    364

(quoting      N.C.   Gen.    Stat.       §    1A-1,       Rule    15(b)),    disc.     review
                                          -9-
denied, 310 N.C. 748, 315 S.E.2d 710 (1984), since N.C. Gen.

Stat. § 1A-1, Rule 15(b) “allows issues to be raised by liberal

amendments to pleadings, and, in some cases, by the evidence,

the    effect    of   the    rule    being   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.”       Id. at 305, 311 S.E.2d at 364.           On the other hand, where

“issue[s] purportedly raised by the evidence [are] not tried by

the consent of the parties, it [is] not error for the court to

refuse to amend the pleadings.”                 Paris v. Michael Kreitz, Jr.,

P.A., 75 N.C. App. 365, 376, 331 S.E.2d 234, 242, disc. review

denied, 315 N.C. 185, 337 S.E.2d 858 (1985).

               2. Lack of Litigation by Consent in this Case

       The    essential      argument     advanced   in    Plaintiff’s        brief    is

that Defendant’s admissions were sufficient to establish several

additional causes of action not set forth in his complaint and

that, given Defendant’s failure to respond to these requests for

admission or to lodge an objection to the consideration of these

additional       claims      at     any   other    time,    Defendant     impliedly

consented to the litigation of these additional claims.                          Based

upon    this    logic,      Plaintiff     argues   that    the   trial   court        was

required to allow the jury to award damages arising from these
                                            -10-
additional claims in addition to the damages arising from his

malicious prosecution claims.                  Plaintiff’s argument stretches

the concept of an implied amendment to the pleadings past the

breaking point.

      As   we   have    already       noted,       the    only   claim    asserted    in

Plaintiff’s complaint was one for malicious prosecution.                           After

having asserted nothing more than a malicious prosecution claim

in his complaint, Plaintiff sought and obtained the entry of

summary judgment based upon an evidentiary showing consisting of

Defendant’s failure to respond to his requests for admission,

all   of   which      were     relevant       to     aspects      of    his   malicious

prosecution claim.          Although Defendant did assert in his summary

judgment motion that he had established the validity of other

claims for relief, he did not seek to amend his complaint at

that time to assert any of the other claims that he mentioned in

that filing.         Instead, Plaintiff did not explicitly attempt to

assert these additional claims until after summary judgment had

been granted in his favor, the case had been called for trial on

the sole issue of the amount of damages that he was entitled to

receive    based       upon     his    malicious          prosecution     claim,     and

Defendant failed to appear.             Under this set of circumstances, we

are   unable    to    say     that    the    issue       of   whether   Plaintiff    was

entitled to recover damages from Defendant based upon claims
                                   -11-
other   than   malicious     prosecution   was   ever     really    tried    by

consent, an event that generally occurs when the parties both

participate in the litigation of the issue in question.                Simply

put, having asserted nothing more than a claim for malicious

prosecution in his original complaint and having failed to put

Defendant on notice of his intentions in advance of trial by

seeking leave to amend his complaint to assert the additional

claims, we are unable to accept Plaintiff’s contention that his

attempt to substantially expand the scope of this litigation to

include multiple additional claims that he had never attempted

to assert in his pleadings and that Defendant had never agreed,

explicitly or implicitly, to have heard, amounted to nothing

more    than   the   trial   of   additional     issues    by    consent     as

authorized by N.C. Gen. Stat. § 1A-1, Rule 15(b).               As this Court

has previously noted, “‘[d]espite the broad remedial purposes of

this provision, however, [N.C. Gen. Stat. § 1A-1,] Rule 15(b)

does not permit judgment by ambush.’”            Paris, 75 N.C. App. at

375, 331 S.E.2d at 242 (quoting Eudy v. Eudy, 288 N.C. 71, 76,

215 S.E.2d 782, 786 (1975), partially overruled on other grounds

by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)).                   As a

result, given the manner in which Plaintiff attempted to assert

his right to recover damages on the basis of additional claims

never asserted in his pleadings, the absence of any legitimate
                              -12-
indication that these additional claims were actually litigated

by consent, and the obvious prejudice to Defendant that would

result from acceptance of Plaintiff’s argument, we conclude that

the trial court did not err by failing to instruct the jury that

it was entitled to award damages to Plaintiff on the basis of

the additional theories upon which Plaintiff now seeks to rely.

                         III. Conclusion

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

Plaintiff’s challenge to the trial court’s judgment lacks merit.

As a result, the trial court’s judgment should be, and hereby

is, affirmed.

    AFFIRMED.

    Judges McGEE and STEELMAN concur.

    Report per Rule 30(e).
