An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-797
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 March 2014


GERRY THOMAS PEEK
     Plaintiff

      v.                                      Chatham County
                                              No. 11 CVS 482
JAMES MICHAEL WATSON and
KELLY M. WATSON
     Defendants.


      Appeal by defendants from judgment entered 26 November 2012

by Judge Elaine M. Bushfan in Chatham County Superior Court.

Heard in the Court of Appeals 12 December 2013.


      Nichols & Satterfield, PLLC, by Daron D. Satterfield, for
      plaintiff-appellee.

      Gunn & Messick, LLP,              by   Paul    S.    Messick,     Jr.,    for
      defendants-appellants.


      HUNTER, JR., Robert N., Judge.


      Defendants James Michael Watson (“James Michael”) and his

cousin     Kelly   M.   Watson    (“Kelly”)     (collectively      “Defendants”)

appeal from the trial court’s decision to deny their motion for

directed verdict and their motion for judgment notwithstanding

the verdict (“JNOV”).            Defendants made these motions on Gerry
                                          -2-
Peek’s      (“Mr.     Peek”)       malicious       prosecution          claim        against

Defendants.         Based on our review of the evidence, we find no

error.

                       I. Facts & Procedural History

      The     evidence    presented         at     trial     tended      to     show    the

following.      Mr. Peek manages a cattle farm off of Bear Creek

Church Road in Chatham County on behalf of a trust.                             The farm

borders property previously owned by defendant James Michael’s

father,     James    Franklin      Watson    (“James       Franklin”).          Mr.     Peek

enjoyed a longstanding business and personal relationship with

James Franklin.        As James Franklin’s health declined, Mr. Peek

and   James    Franklin’s       brother      Aubrey        Clyde      Watson    (“Clyde”)

performed     the     physical      labor    on     both        Mr.    Peek    and     James

Franklin’s farms, while James Franklin managed his own farm’s

administrative       duties.        Mr.     Peek    maintained         that    the     close

relationship between Clyde, James Franklin, and himself led to

the parties openly sharing farm equipment for as long as five

years.      After James Franklin’s death in November 2007, James

Michael administered his father’s estate and assumed ownership

of the farm.

      The    trust    owned    a    driveway       and   Mr.     Peek    allowed       James

Franklin,      and    later     James     Michael,         to    use    the     driveway.
                                         -3-
Disputes     over    the    driveway     began    after     James   Michael    took

ownership.     Mr. Peek said James Michael invited friends onto his

land    to   shoot    firearms   and     they     passed    through   the    shared

driveway.     Mr. Peek stated James Michael left the driveway gate

open,    creating     a    possibility    that     Mr.     Peek’s   cattle    would

escape.      Mr. Peek denied James Michael access to the driveway,

and litigation ensued.         Eventually, James Michael purchased land

and constructed a separate driveway at his own expense.

       After the driveway dispute,              Mr. Peek and his home were

searched pursuant to a search warrant in May 2008.                           Chatham

County Deputy Sheriff Daniel Tilley (“Dep. Tilley”) requested

and     received     authorization     for       the   search   warrant,      which

concerned four pieces of farming equipment.                  The search warrant

application was accompanied by an affidavit from Kelly stating

that he helped James Michael inventory farm equipment from James

Franklin’s estate, that the two                developed a list of missing

equipment, and that the equipment was last seen on Mr. Peek’s

property.

       Mr. Peek was arrested after Dep. Tilley’s search revealed

the listed equipment; he was later released on bond.                  All of the

parties stipulated that the criminal case against Mr. Peek was

terminated in his favor.
                                                 -4-
       On 25 May 2011 Mr. Peek filed a civil complaint against

both      Defendants       for    malicious         prosecution     resulting        from    the

above criminal action.                 Defendants moved for summary judgment on

22 February 2012.            Superior Court Judge Allen Baddour entered an

order on 2 April 2013 denying summary judgment on Mr. Peek’s

claim for malicious prosecution based on these events.                                 A jury

trial resolved factual disputes arising from the complaint on 5

November 2012.

       At    the     jury    trial,       Mr.       Peek    testified       and    identified

several photographic exhibits of the farm equipment at issue in

his criminal prosecution, which included an auger, a bush hog, a

log    splitter,       and       two    power     generators.         These       items     were

purchased      by    James       Franklin,       but     were    shared     freely    between

James Franklin, Clyde, and Mr. Peek to perform their farming

tasks.         Mr.     Peek       said      he      never       received     a     letter     or

communication from James Michael or Kelly about the equipment,

which he had shared with James Franklin over a period of years.

Mr. Peek was 52-years-old when arrested.                         Mr. Peek felt his name

was    besmirched      as    a     result      of      being    arrested,    and     that    the

arrest interfered with his work, caused monetary losses, and

caused him to lose sleep.1



1
    Mr.     Peek    also     called      his      girlfriend       Kimberly       Rollick     to
                                       -5-
    On      cross-examination     of    Mr.    Peek,    Defendants’    counsel

attempted to introduce Defendant’s Exhibit 3 into evidence.                  The

jury left the courtroom and counsel discussed this evidence.

Exhibit 3 was a pro se filed “Specific Affidavit of Negative

Averment”     lawsuit    filed    against      several      public    officials

involved in prosecuting the criminal case.              Mr. Peek objected to

introduction of Exhibit 3 because it was irrelevant and more

prejudicial than probative.        The court reviewed the document and

denied admission due to the possibility that the evidence would

confuse the issues, create unfair prejudice, and that “those

risks    substantially     outweigh     the     probative    value”    of   the

evidence.     Defendants’ Exhibit 4, which granted the Defendants’

Motion to Dismiss Mr. Peek’s “Specific Affidavit of Negative

Averment” was admitted into evidence, and Mr. Peek was cross-

examined about the lawsuit contained in Exhibit 3 by Defendants’

counsel.

    Dep.     Tilley     also   received      multiple   communications      from

James Michael advising him in how to execute the search warrant

against Mr. Peek.        At trial, Dep. Tilley read aloud an e-mail




testify.   She averred that the arrest caused Mr. Peek anguish,
that Mr. Peek “has eaten, drank, and slept all of this,” and
that he lost friendships due to the arrest.
                                     -6-
from James Michael typical of their correspondence.               The e-mail

read:

           Also when you are ready to approach Peek
           with a [arrest warrant] . . . [l]et me know
           and I can give you a key to the main gate.
           Like we talked about, you can set up and
           wait for him to come out.    I would suggest
           waiting him out because my cop sense tells
           me he has the potential to freak out if a
           bunch of police approach him at home.

           . . . .

           I know he has guns because he makes a point
           of firing them when I come down to the farm.
           . . . Clyde Watson has a loaded .38 revolver
           in his glove box.

           . . . .

           Again, be careful with Peek as well as Mr.
           Clyde Watson. They may be lambs or lions.
           They may have     already disposed of my
           property, but the potential for violence
           really exists with them, especially Peek.
           Both   are   anti-government,  common  law
           citizens and probably will not recognize
           your authority.

Defendants   told    Dep.   Tilley    that   Mr.   Peek   had    fired   fully

automatic weapons on the property.           As a result, Dep. Tilley was

concerned for his safety in executing the search warrant and

enlisted   the   assistance   of     seventeen     SWAT   team   officers   to

execute the search warrant.           Upon executing the warrant, Mr.

Peek was not belligerent, and the search uncovered no illegal

weapons.
                                           -7-
    James Michael told Dep. Tilley that Mr. Peek denied having

any of James Michael’s property.                   James Michael did not tell

Dep. Tilley there was a property sharing relationship and that

Mr. Peek possessed the property in question for a number of

years.    James Michael spoke with Mr. Peek on several occasions

about    the   missing    equipment.             James   Michael    said    Mr.    Peek

represented      that    he   did    not    have     any    of   James     Franklin’s

property and that James Franklin did not owe Mr. Peek any money.

Mr. Peek rested his case, and Defendants moved for a directed

verdict pursuant to Rule 50.               Mr. Peek objected, arguing there

was sufficient evidence to be heard by the jury.                           The trial

court denied Defendants’ motions.

    Defendants          called      Dolores       Watson     (“Dolores”),         James

Michael’s      wife.     Dolores     was     present       during   a   conversation

between James Michael and Mr. Peek where Mr. Peek denied having

any of James Franklin’s property.                  Dolores described the visit

as cordial.      Defendants rested.

    Both       parties   presented     closing       arguments      and    the    trial

court gave jury instructions.                 Thereafter, the jury found in

favor of Mr. Peek and awarded him $20,000 from each defendant.

After the jury was excused, Defendants moved for a JNOV, arguing

the verdict was contrary to the weight of the evidence, there
                                        -8-
was not evidence of actual damages in the case, and the judgment

amount    was    excessive.      The    trial       court   denied    Defendants’

motion.     On 26 November 2012 Judge Elaine Bushfan entered a

judgment in favor of Mr. Peek.                Written notice of appeal was

filed by Defendants on 11 December 2012.

                  II. Jurisdiction & Standard of Review

    The     judgment      entered   upon      a    jury   verdict     is   a   final

judgment.       Thus,    this   Court   has       jurisdiction   to    review    the

matter pursuant to N.C. Gen. Stat. § 7A–27(b) (2013).

    The first issue is whether the trial court erred in denying

Defendants’ motion for a directed verdict and Defendants’ motion

for JNOV.       Both the motion for directed verdict and the motion

for JNOV on the malicious prosecution claim are reviewed under a

sufficiency of the evidence standard: “On appeal our standard of

review for a judgment notwithstanding the verdict is the same as

that for a directed verdict; that is, whether the evidence was

sufficient to go to the jury.”           Whitaker v. Akers, 137 N.C. App.

274, 277, 527 S.E.2d 721, 724 (2000) (citation and quotation

marks omitted).         This Court must view the evidence in the light

most favorable to the non-movant, and the non-movant is entitled

to every reasonable inference therefrom.                  Papadopoulos v. State

Capital Ins. Co., 183 N.C. App. 258, 262, 644 S.E.2d 256, 259
                                                -9-
(2007).        Any     conflicts         or    inconsistencies          apparent      in    the

evidence must be construed in favor of the non-movant.                               Jernigan

v. Herring, 179 N.C. App. 390, 392, 633 S.E.2d 874, 877 (2006);

Cannon v. Day, 165 N.C. App. 302, 306, 598 S.E.2d 207, 211

(2004).

      The     second    issue       is    whether         the   trial       court   erred    in

barring     Defendants       from    introducing           Exhibit      3    into   evidence.

“We review a trial court’s decision to exclude evidence under

Rule 403 for abuse of discretion.”                         State v. Whaley, 362 N.C.

156, 160, 655 S.E.2d 388, 390 (2008).                             “Abuse of discretion

results where the court’s ruling is manifestly unsupported by

reason or is so arbitrary that it could not have been the result

of a reasoned decision.”             State v. Trull, 349 N.C. 428, 445, 509

S.E.2d 178, 190 (1998) (citation and quotation marks omitted).

                                     III. Analysis

                 A. Motion for Directed Verdict and JNOV

      Defendants argue the trial court erred by denying their

motion for directed verdict at the close of Mr. Peek’s evidence

and   their    motion     for   JNOV          at    the   close    of       the   trial.    We

disagree.

      “In     order     to    support           a     malicious    prosecution         claim,

plaintiff      must     establish         the       following     four       elements:     ‘(1)
                                      -10-
defendant initiated the earlier proceeding; (2) malice on the

part of defendant in doing so; (3) lack of probable cause for

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

the earlier proceeding in favor of the plaintiff.’”                       Martin v.

Parker,   150   N.C.   App.   179,    182,       563    S.E.2d    216,   218   (2002)

(quoting Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506,

510 (1994)).

    Defendants     only   argue      Mr.   Peek        failed    to   establish   the
                                             2
first and third elements at trial.                Defendants first argue they

did not initiate prosecution of Mr. Peek.                  Defendants argue they

simply reported stolen property and assisted law enforcement by

confirming its location on Mr. Peek’s property.                   We disagree.

    The first element of a malicious prosecution claim, that

defendant initiated the prosecution, is not met if the defendant

simply “[gave] honest assistance and information to prosecuting

authorities.”     Williams v. Kuppenheimer Mfg. Co., 105 N.C. App.

2
  Defendants stipulated to the fourth element and do not argue
that Mr. Peek failed to prove malice by Defendants in seeking
prosecution.   “Malice in a malicious prosecution claim may be
shown by offering evidence that defendant was motivated by
personal spite and a desire for revenge or that defendant acted
with reckless and wanton disregard for plaintiffs’ rights.”
Becker v. Pierce, 168 N.C. App. 671, 676, 608 S.E.2d 825, 829
(2005) (citation and quotation marks omitted). As Defendants do
not raise this issue, we do not address it further.      Viar v.
N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005) (“It is not the role of the appellate courts, however, to
create an appeal for an appellant.”).
                                      -11-
198, 201, 412 S.E.2d. 897, 900 (1992).                   In Kuppenheimer, the

defendant      provided      law     enforcement         officers       with     the

documentation used to effectuate an arrest, and the trial court

ultimately found that were it not for the defendant’s efforts,

there would not likely have been a prosecution of the plaintiff.

Id.   Thus, the trial court in Kuppenheimer found that whether

the defendant initiated a prosecution against the defendant was

properly a matter for the jury.            Id.

      Here,    Mr.   Peek    presented       ample    evidence     of   the    first

element.        Defendants       initially       provided   Dep.      Tilley    with

information      that     four     items     of      property    were     missing.

Defendants told Dep. Tilley           they believed         Mr. Peek      took the

equipment.     James Michael stated that Mr. Peek denied having any

of James Franklin’s property.                James Michael instructed Dep.

Tilley to “use caution” when interacting with Mr. Peek.                         James

Michael described Mr. Peek and Clyde as dangerous and described

the   sounds    of   automatic      rifles    being     fired    on     Mr.    Peek’s

property.      James Michael offered to provide keys to the gate to

gain access to Mr. Peek’s property.                James Michael advised Dep.

Tilley to execute the search warrant by waiting for Mr. Peek to

come out of his home “[l]ike we talked about,” and neglected to

tell Dep. Tilley at any point of the investigation that James
                                          -12-
Franklin, Clyde, and Mr. Peek often shared farm equipment for

long   periods     of     time     without      incident.          The    foregoing        is

sufficient evidence of the first element.

       Defendants next argue Mr. Peek did not produce sufficient

evidence    showing       Defendants       lacked    probable           cause    to    seek

prosecution of Mr. Peek.                 “The test for determining probable

cause is whether a man of ordinary prudence and intelligence

under the circumstances would have known that the charge had no

reasonable foundation.”            Strickland v. Hedrick, 194 N.C. App. 1,

17, 669 S.E.2d 61, 71 (2008) (citations and quotation marks

omitted).     “Probable cause has been properly defined as the

existence    of     such    facts        and    circumstances,           known   to       the

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

commence a prosecution.”             Best, 337 N.C. at 750, 448 S.E.2d at

510 (citations, alterations, and quotation marks omitted).                             “The

critical    time    for    determining         whether   or       not    probable     cause

existed is when the prosecution begins.”                      Strickland, 194 N.C.

App.   at   17,    669    S.E.2d    at    71   (quotation         marks    and   citation

omitted).     “Moreover, in an action for malicious prosecution,

the acquittal of defendant by a court of competent jurisdiction

does not make out a prima facie case of want of probable cause.”

Fowle v. Fowle, 263 N.C. 724, 729, 140 S.E.2d 398, 402 (1965).
                                         -13-
       Defendants cite Best in support of their assertion.                         The

comparison is inapposite.              In Best, a detective saw Mr. Best

“acting suspiciously” around the Duke University Faculty Club

early in the morning.            337 N.C. at 750, 448 S.E.2d. at 510.              Mr.

Best drove his vehicle off the main road and onto the Duke

Faculty     Club    driveway,     turned    off    the   headlights,    and    moved

closer to the hotel.           Id.     When the detective attempted to stop

Mr. Best, Mr. Best “sped” away from the detective’s vehicle and

began a chase on the Duke campus.                   Id. at 750, 448 S.E.2d at

510–11.       When       Mr.   Best    stopped     his    vehicle,    wrought-iron

furniture was found in his vehicle.                 Id. at 750, 448 S.E.2d at

511.    Another officer at the scene checked the Duke Faculty Club

that    evening     and,   finding     no   evidence     of    furniture     missing,

released the defendant.           Id. at 746, 448 S.E.2d at 508.

       The next morning, officers learned wrought-iron furniture

was indeed stolen from the Duke Faculty Club and initiated a

prosecution        of    Mr.   Best.        Id.       The     Court   found    these

“uncontroverted facts fully established that a reasonable person

would be induced thereby to commence a prosecution against” Mr.

Best.     Id. at 751, 448 S.E.2d at 511.                 The prosecuting officer

in   Best   had     no   prior    knowledge       concerning    Mr.   Best    or   his

intentions, nor did his initiation of a prosecution result from
                                         -14-
anything other than the observation of an individual located

near     where    property      was    reported   missing        holding    similar

property.

       By contrast, here Mr. Peek provided evidence that civilian

Defendants initiated the action against                 Mr. Peek.          Mr. Peek

presented evidence showing Defendants knew James Franklin and

Mr. Peek often shared property.                 Mr. Peek presented evidence

that Mr. Peek and Defendants had few interactions concerning Mr.

Peek’s     possession      of    James     Franklin’s      property      and     that

Defendants never requested that Mr. Peek return the four items

specifically prior to initiating prosecution of Mr. Peek.

       After     review   of    the   foregoing   facts,    we    hold     Mr.   Peek

introduced sufficient evidence of Defendants’ lack of probable

cause, satisfying the third element.              As sufficient evidence was

presented, the trial court not err in denying both the motion

for directed verdict and the motion for JNOV.3


3
   Defendants also argue that “[t]he evidence in this case
regarding damages is non-existent.” Defendants do not cite any
authority for this proposition in their brief. This Court will
not “create an appeal for an appellant,” Viar, 359 N.C. at 402,
610 S.E.2d at 361.
Regardless, Defendants’ argument is without merit.   See Raymond
U v. Duke Univ., 91 N.C. App. 171, 177, 371 S.E.2d 701, 706
(1988) (“To recover for malicious prosecution based on all types
of actions, the plaintiff must show that the defendant initiated
the earlier proceeding, that he did so maliciously and without
probable cause, and that the earlier proceeding terminated in
                                       -15-
                    B. Subsequent Lawsuit Exclusion

       “Although    relevant,    evidence     may   be    excluded     if    its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”                 N.C. R. Evid.

403.    The “[a]pplication of the Rule 403 balancing test remains

entirely   within    the    inherent    authority   of   the   trial   court.”

Warren v. Jackson, 125 N.C. App. 96, 98, 479 S.E.2d 278, 280,

disc. review denied, 345 N.C. 760, 485 S.E.2d 310 (1997).4

       We hold the trial court acted within its discretion in

denying admission of Exhibit 3 for “confusion of the issues” and

“unfair prejudice.”         The “specific averment” was filed seven

months after the criminal prosecution of Mr. Peek and was not

timely.     Further,       Defendants    cross-examined    Plaintiff        using

the plaintiff’s favor.  Additionally, in malicious prosecution
cases based on underlying civil actions, the plaintiff must
prove special damages.” (internal citation omitted) (emphasis
added)).
4
  We note that the trial court may admit evidence of earlier or
subsequent proceedings in this civil case, but the proceedings
may be barred if irrelevant or if they otherwise violate Rule
403.   Hummer v. Pulley, Watson, King & Lischer, P.A., 157 N.C.
App. 60, 68, 577 S.E.2d 918, 924 (2003). In Hummer, evidence of
the prior proceeding was allowed because it was used to
substantiate the elements of a claim in the case. Id. Thus, in
Hummer, the prior proceedings were relevant to the case at bar
and would not confuse the underlying issues at hand.    No such
relevant purpose is present here.
                                           -16-
Exhibit 4, which was admitted, which described Exhibit 3 as

“frivolous,” and which required Plaintiff to pay $1,300 in fees

for   initiating      the       earlier     lawsuit.    The     jury    heard    that

Plaintiff’s       suit    was      dismissed,     meaning   the   jury    made   its

decision       with   full      knowledge    that   Plaintiff     had    previously

raised     a    lawsuit      and    that    the   lawsuit   was   dismissed,       so

Defendants’ impeachment purpose was not affected.                        Thus, the

trial court’s ruling was not an abuse of discretion.

                                    IV. Conclusion

      For the reasons stated above, we find

      NO ERROR.

      Judges STROUD and DILLON concur.

      Report per Rule 30(e).
