{ "id": 11205060, "name": "RICHARD EDWARD REIS, Plaintiff-Appellant v. AMELIA WILSON HOOTS, Defendant-Appellee", "name_abbreviation": "Reis v. Hoots", "decision_date": "1998-12-29", "docket_number": "No. COA98-20", "first_page": "721", "last_page": "734", "citations": [ { "type": "official", "cite": "131 N.C. App. 721" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "96", "parenthetical": "quoting Stanback, 297 N.C. at 194, 254 S.E.2d at 620" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "301", "parenthetical": "quoting Stanback, 297 N.C. at 194, 254 S.E.2d at 620" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "246 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552565 ], "year": 1978, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0324-01" ] }, { "cite": "35 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "225 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609943 ], "year": 1945, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0406-01" ] }, { "cite": "464 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917470 ], "year": 1995, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0650-01" ] }, { "cite": "284 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569381 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0523-01" ] }, { "cite": "2 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631756 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0719-01" ] }, { "cite": "451 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "339 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558515 ], "year": 1994, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0441-01" ] }, { "cite": "495 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "736", "parenthetical": "stating that trial court's evidentiary ruling \"will only be reversed on appeal upon a showing that the decision was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision\"" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655468 ], "year": 1998, "pin_cites": [ { "page": "475", "parenthetical": "stating that trial court's evidentiary ruling \"will only be reversed on appeal upon a showing that the decision was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0469-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "440 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "108", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0 }, { "cite": "335 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528296 ], "year": 1994, "pin_cites": [ { "page": "374", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0353-01" ] }, { "cite": "407 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553707 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0764-01" ] }, { "cite": "394 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "459", "parenthetical": "discussing expert testimony" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524328 ], "year": 1990, "pin_cites": [ { "page": "622", "parenthetical": "discussing expert testimony" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0615-01" ] }, { "cite": "452 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526032 ], "year": 1995, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0580-01" ] }, { "cite": "103 S.E. 6", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1920, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "179 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656612 ], "year": 1920, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/179/0514-01" ] }, { "cite": "390 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "173", "parenthetical": "evidence is relevant so long as it assists the jury in understanding the evidence" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520822 ], "year": 1990, "pin_cites": [ { "page": "8", "parenthetical": "evidence is relevant so long as it assists the jury in understanding the evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0001-01" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228", "parenthetical": "this standard gives the trial judge broad discretion to admit evidence" } ], "opinion_index": 0 }, { "cite": "104 N.C. App 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "502", "parenthetical": "this standard gives the trial judge broad discretion to admit evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "27 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1943, "pin_cites": [ { "page": "81" }, { "page": "81" } ], "opinion_index": 0 }, { "cite": "223 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611430 ], "weight": 2, "year": 1943, "pin_cites": [ { "page": "468" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0467-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "343 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "231", "parenthetical": "noting that directed verdict should not have been granted dismissing plaintiff's claim for emotional distress where she testified that as a result of defendant's breach of contract she \"became extremely upset. . . nervous and distraught. . . [and] physically ill\"" } ], "opinion_index": 1 }, { "cite": "80 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525309 ], "year": 1986, "pin_cites": [ { "page": "633", "parenthetical": "noting that directed verdict should not have been granted dismissing plaintiff's claim for emotional distress where she testified that as a result of defendant's breach of contract she \"became extremely upset. . . nervous and distraught. . . [and] physically ill\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/80/0629-01" ] }, { "cite": "358 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "109" } ], "opinion_index": 1 }, { "cite": "86 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133609 ], "year": 1987, "pin_cites": [ { "page": "454" } ], "opinion_index": 1, "case_paths": [ "/nc-app/86/0451-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "disapproving Stanback's statements regarding requirements for the tort of intentional infliction of emotional distress" } ], "opinion_index": 1 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "parenthetical": "disapproving Stanback's statements regarding requirements for the tort of intentional infliction of emotional distress" } ], "opinion_index": 1, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "619" }, { "page": "620" }, { "page": "620" } ], "opinion_index": 1 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "192" }, { "page": "194" }, { "page": "194" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "55 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1949, "pin_cites": [ { "page": "813" }, { "page": "811", "parenthetical": "noting that plaintiffs testimony that defendants' breach of contract \"caused her considerable shock and made her extremely nervous as a result of which she became a nervous wreck . . . [and that it] made her so nervous she could hardly stand up\" was sufficient to show emotional distress" } ], "opinion_index": 1 }, { "cite": "231 N.C. 10", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627948 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "14" }, { "page": "12" } ], "opinion_index": 1, "case_paths": [ "/nc/231/0010-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "96" } ], "opinion_index": 1 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "301" } ], "opinion_index": 1, "case_paths": [ "/nc/327/0283-01" ] } ], "analysis": { "cardinality": 1225, "char_count": 30855, "ocr_confidence": 0.758, "pagerank": { "raw": 3.5048834679872363e-07, "percentile": 0.8829850697859218 }, "sha256": "a49a59c30a8cbd9a57e70debc625071042eac3a1aed1a6903e0d988ba8cd1582", "simhash": "1:41a3e4322c1f26d3", "word_count": 4937 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER concurs.", "Judge GREENE concurs in separate opinion." ], "parties": [ "RICHARD EDWARD REIS, Plaintiff-Appellant v. AMELIA WILSON HOOTS, Defendant-Appellee" ], "opinions": [ { "text": "SMITH, Judge.\nThe parties to this appeal were married on 15 November 1977, separated on 13 January 1990, and divorced on 19 February 1991. Pursuant to the parties\u2019 separation, they entered into a Contract of Separation and Property Settlement Agreement (Agreement). This Agreement reads, in pertinent part,\nNO MOLESTATION. That each party shall be free from interference and control, direct or indirect, by the other. Neither party shall molest or harass the other, and further, that neither shall attempt by word or act to influence the life of the other, nor compel or attempt to compel the other, to associate, cohabit or dwell with the other for any reason whatsoever.\nCHILD SUPPORT. That the Husband shall pay One-Hundred Ten Dollars ($110.00) per week in child support payments, to be allocated as follows . . . with the understanding that these support payments will be reduced pro rata as each child reaches eighteen .... In addition, as part of his child support payments, Husband agrees to make each and every house payment due on the former marital home until the youngest minor child reaches the age of eighteen, on April 1, 2000. . . .\nREAL PROPERTY. That the Husband and Wife own a house and tract of land, formerly the marital residence .... That the Husband and Wife each agree that the Wife may reside in the former marital home until the youngest child turns eighteen years old, on April 1, 2000. That the Husband agrees that he will make the full house payment each and every month until April 1, 2000. At that time, three written appraisals shall be obtained... to determine the fair market value of the marital home. At that time the marital home shall be listed with a multiple listing service ... at a price which shall not be less than the average of the three real estate appraisals. .. .\nWife acknowledges that the Husband paid Ten-Thousand Four-Hundred Dollars ($10,400.00) toward the purchase of said home prior to their marriage, and therefore the first Ten-Thousand Four-Hundred Dollars ($10,400.00) of the net proceeds of the sale of the marital home shall go to the Husband individually; the remaining net proceeds shall be divided equally between Husband and Wife.\nIn the event Wife moves a male companion into the home, then at the election of Husband, the home may be sold immediately under the condition set forth above.\nDuring the time the Wife occupies the marital home, Wife agrees not to cause waste to said marital home. Both Husband and Wife agree to maintain the marital home in its present condition, and to share equally in any maintenance expenses. . . .\nLEGAL FEES. That if either party breaches any of the terms of this agreement, the breaching party shall be required to pay reasonable attorney fees for the party whose rights were violated as a result of said breach.\nFollowing the parties\u2019 divorce, defendant remarried and her new husband moved into the marital home. Plaintiff filed several civil actions against defendant to construe the terms of the Agreement, namely whether defendant\u2019s new husband was considered a \u201cmale companion,\u201d thus rendering the house subject to sale at plaintiff\u2019s election. Each action was dismissed by plaintiff. Plaintiff then conveyed his interest in the home to a third party, who subsequently harassed defendant, demanding that she and her family vacate the premises, even going so far as filing a criminal trespass action and an ejectment action, both of which were dismissed. When the third party\u2019s attempts proved unsuccessful, he reconveyed the interest to plaintiff. On 8 February 1993, plaintiff obtained an order from the district court, which construed the language of the Agreement to encompass new husbands within the meaning of \u201cmale companion\u201d and directed that the residence be sold pursuant to the Agreement.\nThe residence was sold and the proceeds held by the Clerk\u2019s office for determination of distribution.\nOn 14 February 1995, plaintiff filed a complaint against defendant alleging breach of the Agreement (by delaying or interfering with the sale of the residence prior to the court order directing the sale) and waste with regard to the parties\u2019 former marital residence. Defendant answered and counterclaimed alleging, among other things, breach of the \u201cNo Molestation\u201d clause of the Agreement. Specifically, defendant claimed that plaintiff breached the provision of the Agreement by: (a) causing a warrant to be issued for defendant\u2019s arrest; (b) filing numerous lawsuits against defendant, most of which were dismissed prior to disposition; and (c) intercepting her mail and disrupting the delivery of the same. Defendant sought recovery for monies expended on attorney\u2019s fees defending the multiple lawsuits filed against her and for mental anguish. All claims and counterclaims were dismissed prior to trial except for defendant\u2019s breach of Agreement claim. This issue was tried by jury during the 2 June 1997 civil session of Henderson County Superior Court. The jury returned a verdict finding that plaintiff had breached the Agreement and awarded defendant damages in the amount of $30,000. The judge entered judgment in accordance therewith and awarded defendant attorney\u2019s fees in the sum of $8,351,50 in accordance with the Agreement. Plaintiff appeals.\nI.\nPlaintiff, in three separate assignments of error, argues that certain evidence, which was admitted over objection during trial, should have been excluded as irrelevant and that the trial judge\u2019s failure to exclude such evidence amounted to prejudicial error.\nThe evidentiary rule of relevance is quite broad. Rule 401 states, \u201c \u2018[r]elevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (1992). The Federal Advisory Committee\u2019s Note to the federal rule, which is identical to the North Carolina rule, provides some clarification:\nProblems of relevancy call for an answer to the question whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence ....\nRelevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? . . .\nThe rule uses the phrase \u201cfact that is of consequence to the determination of the action\u201d to describe the kind of fact to which proof may properly be directed. The language is that of California Evidence Code \u00a7 210; it has the advantage of avoiding the loosely used and ambiguous word \u201cmaterial.\u201d . . . The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action ....\nOur courts have followed this interpretation and apply the rule of relevance broadly. See, e.g., Farmers Federation, Inc. v. Morris, 223 N.C. 467, 468, 27 S.E.2d 80, 81 (1943) (pre-rule case stating that evidence need not bear directly on the question in issue to be admissible; it is competent if it relates to one of the circumstances surrounding the parties and necessary to be known to properly understand the issues or to weigh the reasonableness of their contentions); State v. Wallace, 104 N.C. App 498, 502, 410 S.E.2d 226, 228 (1991) (this standard gives the trial judge broad discretion to admit evidence); State v. Hall, 99 N.C. App. 1, 8, 390 S.E.2d 169, 173 (1990) (evidence is relevant so long as it assists the jury in understanding the evidence).\nThus, according to the Rules of Evidence, \u201c[a]ll relevant evidence is admissible, except as otherwise provided . . . .\u2019\u2019N.C. Gen. Stat. \u00a7 8C-1, Rule 402 (1992). The Rules then set forth a number of exceptions to admissibility. Most importantly, for the arguments set forth in this case, is Rule 403, which states, \u201c [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.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1992).\nThe first admission of evidence that plaintiff assigns as error relates to the conveyance of the marital residence to Mr. Henry Clay Ritter. He asserts that defendant\u2019s testimony regarding the transfers of the marital residence to and from Mr. Ritter and Mr. Ritter\u2019s actions in attempting to eject defendant from the property was irrelevant and inadmissible. Because the rule of relevance is so broad, we only consider whether this testimony \u201c \u2018is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions.\u2019 \u201d Farmers Federation, 223 N.C. at 469, 27 S.E.2d at 81 (quoting Bank v. Stack, 179 N.C. 514, 516, 103 S.E. 6, 7 (1920)). Defendant\u2019s counterclaim relating to plaintiff\u2019s breach of the Agreement was based upon allegations of harassment by plaintiff. Among other things, defendant presented evidence of plaintiff\u2019s relationship with Mr. Ritter. Plaintiff\u2019s mother and Mr. Ritter and his wife had been \u201cclose family friends\u201d for upwards of twenty years. Furthermore, plaintiff had known Mr. Ritter for approximately ten years. Defendant also presented evidence that the transfers to and from Mr. Ritter were for little or no consideration. Excise tax paid on the transfer to Mr. Ritter was ten dollars, and none was paid on the transfer back to plaintiff. Defendant\u2019s assertion at trial was that Mr. Ritter was acting on plaintiff\u2019s behalf and under plaintiff\u2019s control. Plaintiff made general objections to the admission of the evidence, which were overruled.\nThe evidence at issue was presented to prove defendant\u2019s counterclaim of harassment. Although circumstantial, it was relevant to determine the underlying issue in the case; that is, whether plaintiff breached the Agreement by molesting or harassing defendant. This assignment of error is overruled.\nWith regard to this evidence, appellant contends, in the alternative, that if relevant, its probative value is substantially outweighed by the danger of undue prejudice. Whether to exclude evidence on this ground is within \u201cthe sound discretion of the trial court.\u201d Pittman v. Barker, 117 N.C. App. 580, 588, 452 S.E.2d 326, 331 (1995). In determining whether to exclude evidence on the grounds of undue prejudice, the trial court should consider \u201cthe probable effectiveness or lack of effectiveness of a limiting instruction.\u201d Fed. R. Evid. 403, Advisory Committee\u2019s Note. In this case, the trial judge instructed the jury as follows:\nYou cannot hold the plaintiff, Mr. Reis, responsible for the actions of Mr. Ritter, no matter what such actions might have been, unless you find by the greater weight of the evidence that Mr. Ritter was acting in concert with, as the agent of or under the direction of Mr. Reis[.]\nSo, if you find .. . that Mr. Henry Clay Ritter was acting under the direction of, in concert with or as the agent of Mr. Reis, you are permitted but not required to find the actions violated the terms of the contract between the parties. It is for you to decide if such actions constituted a violation of the terms of the separation contract.\nBecause the trial judge gave a limiting instruction with regard to the evidence in dispute, it follows that he recognized the potential for prejudice and exercised his discretion in permitting its introduction. This Court will not intervene where the trial court properly appraises the probative and prejudicial values of evidence under Rule 403. See State v. Cotton, 99 N.C. App. 615, 622, 394 S.E.2d 456, 459 (1990) (discussing expert testimony), aff\u2019d, 329 N.C. 764, 407 S.E.2d 514 (1991). \u201cIt is only \u2018where the trial court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision\u2019 that the trial judge\u2019s ruling will be overturned on appeal.\u201d State v. Mlo, 335 N.C. 353, 374, 440 S.E.2d 98, 108 (1994) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)); see also State v. Jordan, 128 N.C. App. 469, 475, 495 S.E.2d 732, 736 (1998) (stating that trial court\u2019s evidentiary ruling \u201cwill only be reversed on appeal upon a showing that the decision was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision\u201d). Plaintiff- has not demonstrated any abuse of discretion, and therefore, the trial court\u2019s ruling will not be disturbed on appeal.\nNext, plaintiff argues that evidence admitted regarding his relationship with his children was irrelevant and should have been excluded. The evidence at issue on this assignment of error is as follows:\nQ: After the separation, did Mr. Reis have difficulty with his relationship with his three children?\nA: Yes.\nMr. Redden: Objection.\nThe Court: Overruled.\nA: Yes, my 18 year old especially. At the time he was about 12 and Mr. Reis wouldn\u2019t even let him go and visit at his house. He would take the other two on weekends at first and he picked them up at day camp and one incident in particular he would pick all three of them up at day camp and he would drop Drew off where I was working and he dropped the kid off about half a mile from where I worked in a pouring down rain thunder storm and even that Christmas, Drew called his father and ask [sic] him if he couldn\u2019t at least come over at Christmas time. He said \u201cdon\u2019t worry about it, I\u2019ll send you a present.\u201d\nMr. Redden: Objection and motion to strike.\nThe Court: Objection is overruled but I think we\u2019re losing the relevance of this.\nQ: Had the continued lawsuits and the problems you\u2019ve testified about in this Courtroom had any effect on your health?\nA: Yes, and it has on my children as well.\nMr. Redden: Objection, may it please the Court. She\u2019s asking did it effect [sic] her health, yes and also effected [sic] my children.\nThe Court: Objection is overruled.\nA: My 16 year old was hospitalized in 1995 because of acute colitis. The Doctor said it was caused from\u2014\nMr. Redden: Objection.\n\u2014extreme stress.\nThe Court: Overruled. Go ahead.\nThe issue before the jury was whether plaintiff breached the provision in the separation agreement that prohibited him from molesting or harassing defendant. To receive damages for mental anguish, defendant had to prove the emotional effect that plaintiffs harassment had on defendant. The evidence presented, while directly relating to the effect plaintiffs alleged conduct had on the parties\u2019 children, was relevant circumstantial evidence of the emotional effect plaintiffs harassment caused defendant. Having to cope with the pain and emotional distresses of her minor children would be almost certain to cause defendant emotional turmoil. Defendant\u2019s attorney elicited testimony regarding the parties\u2019 children\u2019s pain in order to prove the impact that plaintiff\u2019s conduct had on defendant.\nAppellant contends, in the alternative, that if the evidence was relevant, its probative value was substantially outweighed by the danger for unfair prejudice. He argues that \u201cthis testimony would naturally cause the jury to be prejudiced against the Appellant simply because he was a \u2018bad\u2019 father.\u201d This argument is without merit. The evidence goes straight to the heart of the damages issue, i.e., the emotional strain placed on defendant due to plaintiff\u2019s alleged harassment. Although its admission would prejudice plaintiff, any evidence that is favorable to defendant will necessarily be prejudicial to plaintiff. See State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994). The question is whether the evidence is unduly prejudicial. We hold that it is not.\nII.\nIn appellant\u2019s next assignment of error, he argues that an out-of-court identification of him was inadmissible hearsay. We agree. During defendant\u2019s introduction of evidence, she sought to introduce evidence of plaintiff\u2019s interference with defendant\u2019s mail. She allegedly had multiple problems with \u201clost\u201d mail, about which she complained to the postmaster. While on direct examination, defendant testified:\nA. I talked with the Postmaster and as a result of that conversation, I went home and got a picture of Mr. Reis and she identified him-\u2014\nMr. Redden: Objection.\nThe Court: Overruled.\nA. \u2014 as someone she had seen sitting in the parking lot everyday at lunch time and she saw him going into the Post Office as she would leave for lunch. It\u2019s a small Post Office and she\u2019s the only one that [sic] works in there.\nHearsay is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (1992). In this case, the out-of-court declarant is the postmaster, and the statement is offered not for impeachment or corroboration purposes, but to prove that plaintiff was the person seen by declarant. The evidence is classic hearsay prohibited by Rule 802, see N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (1992), and does not fall within any of the statutorily defined exceptions, see N.C. Gen. Stat. \u00a7 8C-1, Rules 803, 804 (1992). No evidence was offered regarding the unavailability of the postmaster, nor did defendant offer any other basis for qualification of this testimony under any exception to the hearsay rule. Admission of this testimony was error.\nThis does not end our inquiry, however, for the appellant bears the burden to show error sufficient to enable the court to see that he was prejudiced or that the evidence probably influenced the verdict of the jury. See Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863 (1939); State v. Murvin, 304 N.C. 523, 284 S.E.2d 289 (1981). In this case, appellant has failed to prove that admission of this testimony prejudiced the outcome of this case. Looking to the facts of the case, even without this testimony, there is sufficient evidence of plaintiff tampering with defendant\u2019s mail. In fact, evidence was admitted showing (1) that plaintiff, although he had a primary post office box at another location, acquired a different box nearly adjacent to plaintiff\u2019s; (2) that a local detective caught plaintiff in the act of tampering with defendant\u2019s mail; and (3) that plaintiff was federally charged and tried for mail fraud, a charge to which he pled guilty. Therefore, it cannot be said that the inadmissible hearsay testimony prejudiced the outcome of the case. This assignment of error is overruled.\nIII.\nFinally, appellant argues that the trial court erred in denying plaintiff\u2019s motions for directed verdict and judgment notwithstanding the verdict with regard to damages. He argues that defendant\u2019s evidence was \u201cinsufficient to prove that Appellee suffered any compensable damage as a result of those actions which could serve as a basis of a breach of contract.\u201d We disagree. To recover damages, defendant must prove that she suffered special damages as a result of the breach of contract. See Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 673, 464 S.E.2d 47, 63 (1995). Such damages must have been within the contemplation of the parties. See Troitino v. Goodman, 225 N.C. 406, 412, 35 S.E.2d 277, 281 (1945). Furthermore, defendant must prove the amount of her special damages with a reasonable degree of certainty. See Stanback v. Stanback, 37 N.C. App. 324, 327, 246 S.E.2d 74, 78 (1978). In this case, defendant testified as to the monies expended on defending the multitude of lawsuits filed against her by either plaintiff or Mr. Ritter. Because defendant\u2019s claim was that plaintiff harassed her, thus breaching the Agreement, the costs related to such harassment are certainly compensable.\nAdditionally, appellant argues that defendant\u2019s evidence regarding her mental suffering was speculative at best. To recover damages for mental anguish in a breach of contract action, the claimant must show:\n\u201cFirst, that the contract was not one concerned with trade and commerce with concomitant elements of profit involved. Second, that the contract was one in which the benefits contracted for were other than pecuniary, i.e., one in which pecuniary interests were not the dominant motivating factor in the decision to contract. And third, the contract must be one in which the benefits contracted for relate directly to matters of dignity, mental concern or solicitude, or the sensibilities of the party to whom the duty is owed, and which directly involves interests and emotions recognized by all as involving great probability of resulting mental anguish if not respected.\u201d\nJohnson v. Ruark Obstetrics, 327 N.C. 283, 301, 395 S.E.2d 85, 96 (1990) (quoting Stanback, 297 N.C. at 194, 254 S.E.2d at 620)). No physical injury or impact must be shown. See id. This is the law and the jury was so instructed. Defendant testified as to the stress, both financial and emotional, caused by the numerous lawsuits and mail tampering. She testified as to the mental anguish she had suffered either directly or indirectly (by having to cope with the pain and turmoil plaintiffs actions caused the parties\u2019 children). Her testimony constituted sufficient evidence of damages to submit the case to the jury. The jury received and weighed the evidence and rendered a verdict and damage award in accordance therewith. Accordingly, the trial court did not err in denying plaintiffs motions and we find no prejudicial error.\nNo error.\nJudges WALKER concurs.\nJudge GREENE concurs in separate opinion.", "type": "majority", "author": "SMITH, Judge." }, { "text": "Judge Greene\nconcurring.\nI concur with the majority opinion, but write separately on the issue of damages in order to emphasize that it is rarely the case that damages for mental anguish are recoverable under a breach of contract theory. See, e.g., Lamm v. Shingleton, 231 N.C. 10, 14, 55 S.E.2d 810, 813 (1949). This is so because \u201ccontracts are usually commercial in nature,\u201d id., and \u201cfpjecuniary interests are paramount,\" Stanback v. Stanback, 297 N.C. 181, 192, 254 S.E.2d 611, 619 (1979), disap-, proved of on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981) (disapproving Stanback\u2019s statements regarding requirements for the tort of intentional infliction of emotional distress). But where the contract is not one for profit and the matters contracted for directly relate to \u201cmatters of dignity, mental concern or solicitude, or the sensibilities of the party to whom the duty is owed,\u201d and the contract directly involves interests \u201crecognized by all as involving great probability of resulting mental anguish if not respected, . . . [then] mental anguish damages are a natural and probable consequence of breach, and it can reasonably be said that such damages were within the contemplation of the parties at the time they contracted.\u201d Stanback, 297 N.C. at 194, 254 S.E.2d at 620. It is also important to note that expert medical testimony is not always necessary to prove mental anguish. McKnight v. Simpson\u2019s Beauty Supply, Inc., 86 N.C. App. 451, 454, 358 S.E.2d 107, 109 (1987) (noting that evidence that plaintiff was \u201cshocked\u201d and \u201cupset\u201d following defendant\u2019s actions was sufficient to show emotional distress, but expert medical testimony is necessary if the injury claimed is \u201can unusual emotional state, not within the common knowledge and experience of laymen, that in itself requires medical diagnosis\u201d); Lamm, 231 N.C. at 12, 55 S.E.2d at 811 (noting that plaintiffs testimony that defendants\u2019 breach of contract \u201ccaused her considerable shock and made her extremely nervous as a result of which she became a nervous wreck . . . [and that it] made her so nervous she could hardly stand up\u201d was sufficient to show emotional distress); McDaniel v. Bass-Smith Funeral Home, Inc., 80 N.C. App. 629, 633, 343 S.E.2d 228, 231 (1986) (noting that directed verdict should not have been granted dismissing plaintiff\u2019s claim for emotional distress where she testified that as a result of defendant\u2019s breach of contract she \u201cbecame extremely upset. . . nervous and distraught. . . [and] physically ill\u201d).\nIn this case, the separation agreement entered by the parties contained a clause which stated:\nNO MOLESTATION. That each party shall be free from interference and control, direct or indirect, by the other. Neither party shall molest or harass the other, and further, that neither shall attempt by word or act to influence the life of the other, nor compel or attempt to compel the other, to associate, cohabit or dwell with the other for any reason whatsoever.\nThis agreement is not one concerned with trade, commerce, or profit; the benefits conferred pursuant to this section of the separation agreement are \u201cother than pecuniary\u201d; and the benefits contracted for in this section of the agreement \u201crelate directly to matters of dignity, mental concern or solicitude, or the sensibilities of the party to whom the duty is owed\u201d which directly involve \u201cinterests and emotions recognized by all as involving great probability of resulting mental anguish if not respected.\u201d See Johnson v. Ruark Obstetrics, 327 N.C. 283, 301, 395 S.E.2d 85, 96 (quoting Stanback, 297 N.C. at 194, 254 S.E.2d at 620), reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990). The non-molestation clause of the parties\u2019 separation agreement is therefore one of those rare contracts which allows recovery for mental anguish.\nDefendant\u2019s testimony presented evidence from which the jury could find that plaintiff had breached the non-molestation clause of the separation agreement by repeatedly having lawsuits filed against defendant for the purpose of harassing her and by having defendant arrested for criminal trespass of the marital residence (which charge was later dismissed). Defendant\u2019s children were present at the time of her arrest, and \u201cwere crying, . . . were very upset . . . [and were] embarrassed.\u201d Defendant testified that plaintiff schemed to successfully delay her receipt of her share of the proceeds from the subsequent sale of the marital home for approximately two years. Defendant also presented evidence from which the jury could find that plaintiff had stolen her mail for a period of over eighteen months following their separation. An investigator who testified that he had caught plaintiff stealing defendant\u2019s mail stated that defendant was \u201cirate and upset\u201d over the situation. Defendant further testified that plaintiffs breach of the non-molestation clause \u201cwas upsetting me and tearing the kids up.\u201d Defendant testified that the effect of plaintiff\u2019s breach of the non-molestation clause had caused \u201cconstant litigation, turmoil and upset since he and I separated.\u201d She further testified that \u201c[t]he children have been upset. It\u2019s been one day to the next wondering what is he going to pull next, what is he going to do next, what is he going to put us through next and it\u2019s been that way for seven years.\u201d Defendant testified that plaintiff\u2019s breach of the separation agreement had affected her health, and the health of her children, resulting in the hospitalization of one child for acute colitis caused by extreme stress. This evidence is sufficient to show that defendant suffered mental anguish as a result of plaintiff\u2019s breach of the non-molestation clause of the parties\u2019 separation agreement. Accordingly, the trial court properly denied plaintiff\u2019s motion for directed verdict.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "Prince, Youngblood & Massagee, by Sharon B. Alexander, for plaintiff-appellant.", "No brief for defendant-appellee." ], "corrections": "", "head_matter": "RICHARD EDWARD REIS, Plaintiff-Appellant v. AMELIA WILSON HOOTS, Defendant-Appellee\nNo. COA98-20\n(Filed 29 December 1998)\n1. Evidence\u2014 relevance \u2014 conveyance of marital residence\nThe trial court did not err in an action arising from a separation agreement which had both a no molestation clause and a marital residence transfer clause by admitting evidence regarding transfers of plaintiffs interest in the marital residence to and from a third party and the third party\u2019s actions in attempting to eject defendant from the property. The evidence at issue was presented to prove defendant\u2019s counterclaim of harassment and, although circumstantial, was relevant to determine the underlying issue in the case.\n2. Evidence\u2014 not unduly prejudicial \u2014 separation agreement \u2014 harassment\nThe trial court did not abuse its discretion in an action arising from a separation agreement with a no molestation clause and a marital residence transfer clause by admitting evidence concerning plaintiff\u2019s transfer of his interest in the residence to a third party who attempted to eject defendant. Although plaintiff contends that the probative value of the evidence is substantially outweighed by the danger of undue prejudice, the trial judge gave a limiting instruction, which indicates that he recognized the potential for prejudice and exercised his discretion.\n3. Evidence\u2014 relevance \u2014 marital harassment \u2014 relationship with children\nThe trial court did not err in a counterclaim under the no molestation clause of a separation agreement by admitting evidence regarding plaintiff\u2019s relationship with his children where defendant sought damages for mental anguish and had to prove the emotional effect of plaintiff\u2019s harassment. The evidence was relevant in that having to cope with the pain and emotional distresses of the minor children would be almost certain to cause defendant emotional turmoil. Moreover, while the evidence was necessarily prejudicial to plaintiff, it was not unduly prejudicial.\n4. Evidence\u2014 hearsay \u2014 identification\u2014marital harassment\nThere was no prejudicial error in a harassment counterclaim under a separation agreement where defendant, who alleged problems with lost mail, testified that a postmaster had identified a photograph of plaintiff. The evidence is classic hearsay; however, it was not prejudicial due to other sufficient evidence of plaintiff tampering with defendant\u2019s mail, including a guilty plea to a federal charge of mail fraud.\n5. Damages and Remedies\u2014 contract \u2014 separation agreement \u2014 cost of lawsuit \u2014 mental suffering\nThe trial court did not err by denying plaintiffs motions for directed verdict and judgment n.o.v. in a harassment counterclaim arising from a separation agreement where plaintiff contended that defendant\u2019s evidence was insufficient to prove damages, but defendant testified as to monies expended on defending the multitude of lawsuits filed against her and testified as to the mental anguish she had suffered directly or indirectly.\nJudge Greene concurring.\nAppeal by plaintiff from judgment entered 2 July 1997 by Judge Raymond A. Warren in Henderson County Superior Court. Heard in the Court of Appeals 20 October 1998.\nPrince, Youngblood & Massagee, by Sharon B. Alexander, for plaintiff-appellant.\nNo brief for defendant-appellee." }, "file_name": "0721-01", "first_page_order": 755, "last_page_order": 768 }