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  "name": "HUNG NGUYEN, Plaintiff v. BURGERBUSTERS, INC., d/b/a TACO BELL, Defendant",
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    "judges": [
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    "parties": [
      "HUNG NGUYEN, Plaintiff v. BURGERBUSTERS, INC., d/b/a TACO BELL, Defendant"
    ],
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      {
        "text": "BRYANT, Judge.\nBurgerbusters, Inc. (defendant) appeals from a judgment entered 14 November 2005, consistent with a jury verdict finding defendant liable to Hung Nguyen (plaintiff) for malicious prosecution and awarding damages in the amount of $200,000. Defendant also appeals from an order entered 9 December 2005 denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We find defendant received a trial free from error and affirm the judgment and order of the trial court.\nFacts\nPlaintiff was an employee of defendant, working as a General Manager of one of defendant\u2019s Taco Bell franchise restaurants. Plaintiff\u2019s wife was also an employee of defendant, working in the store plaintiff managed. In October 2000, Christakis Paphites, defendant\u2019s President arid Chief Operating Officer, received a letter via facsimile alleging plaintiff was adding hours to his wife\u2019s time records above and beyond what she was actually working. Paphites instituted an investigation into these allegations which was led by Gayle White, the District Manager over the restaurants in which plaintiff and his wife worked.\nBased on information provided by White and an interview with plaintiff by White and Joe Mangano, defendant\u2019s Vice President for Operations, defendant fired plaintiff. Defendant subsequently provided information to Detective Glenn Knight, a fraud/financial crimes investigator for the Greensboro Police Department, alleging that plaintiff had caused defendant to pay $25,000 to a nominal employee who did not work for the company. From the information provided by defendant, the Guilford County District Attorney\u2019s Office obtained an indictment against plaintiff on the charge of embezzling $25,000 from defendant. However, after further investigation into the criminal charge by the Assistant District Attorney (ADA) handling the case, it was determined that there was insufficient evidence to prosecute plaintiff and the charge of embezzlement was dismissed.\nProcedural History\nOn 13 September 2004, plaintiff filed a complaint against defendant seeking compensatory and punitive damages for malicious prosecution and abuse of process. Defendant filed its answer on 15 November 2004. This matter was tried before a jury beginning on 31 October 2005. During the trial, defendant made a motion for a directed verdict, which was granted in part on the claim of abuse of process and as to the issue of punitive damages. The jury returned a verdict on 3 November 2005 finding defendant liable to plaintiff and awarding damages of $200,000. The trial court subsequently entered a judgment for plaintiff consistent with the jury verdict. On 14 November 2005, the trial court entered amended judgment on the verdict, correcting the name of the defendant against whom judgment was entered. Defendant filed a motion for judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial on 17 November 2005. Defendant\u2019s motion was denied by order entered 9 December 2005.' Defendant appeals.\nDefendant raises the issues of whether: (I) the trial court erred in denying defendant\u2019s motion for judgment notwithstanding the verdict because plaintiff failed to prove malicious prosecution; (II) the action should be dismissed because plaintiff did not introduce into evidence the warrant or indictment at trial; and (III) whether the trial court erred in denying defendant\u2019s motion for a new trial.\nI\nDefendant first argues the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiff failed to prove malicious prosecution. \u201c \u2018When determining the correctness of the denial [of a motion] for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party\u2019s favor, or to present a question for the jury.\u2019 \u201d Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 522, 613 S.E.2d 274, 277-78 (2005) (quoting Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991)). To prove a claim for malicious prosecution, a plaintiff must establish four elements: \u201c \u2018(1) the defendant initiated the earlier proceeding; (2) malice on the part of the 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.\u2019 \u201d Beroth Oil Co. v. Whiteheart, 173 N.C. App. 89, 99, 618 S.E.2d 739, 746 (2005) (quoting Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994)), appeal dismissed, disc. rev. denied, 360 N.C. 531, 633 S.E.2d 674 (2006). Defendant contends plaintiff failed to meet his burden of proof on any of these four elements. For the reasons below we find plaintiff presented sufficient evidence to sustain a jury verdict in his favor and overrule this assignment of error.\nDefendant\u2019s Initiation of Earlier Proceeding\nIt is well established that the \u201cact of giving honest assistance and information to prosecuting authorities does not render one liable for malicious prosecution.\u201d Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 201, 412 S.E.2d 897, 900 (1992); see also Harris v. Barham, 35 N.C. App. 13, 16, 239 S.E.2d 717, 719 (1978) (\u201c[I]t cannot be said that one who reports suspicious circumstances to the authorities thereby makes himself responsible for their subsequent action, . . . even when . . . the suspected persons are able to establish their innocence.\u201d). \u201cHowever, where \u2018it is unlikely there would have been a criminal prosecution of [a] plaintiff\u2019 except for the efforts of a defendant, this Court has held a genuine issue of fact existed and the jury should consider the facts comprising the first element of malicious prosecution.\u201d Becker v. Pierce, 168 N.C. App. 671, 675, 608 S.E.2d 825, 829 (2005) (quoting Williams, 105 N.C. App. at 201, 412 S.E.2d at 900).\nViewing the evidence of record before this Court in the light most favorable to the nonmovant, plaintiff has met his burden with respect to this element. As in Becker and Williams, defendant provided all of the information upon which the arrest warrant, indictment, and initial prosecution were all based. Defendant\u2019s agents contacted the police and presented information tending to show that plaintiff\u2019s wife was not an employee of defendant. Without the initial contact from defendant, it is unlikely there would have been a criminal prosecution of plaintiff. Thus, a genuine issue of fact existed as to whether defendant initiated the criminal proceeding and the trial court properly submitted this issue to the jury.\nDefendant\u2019s Lack of Probable Cause\nRegarding a claim for malicious prosecution,\nprobable 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. Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court.\nBest, 337 N.C. at 750, 448 S.E.2d at 511 (internal citations and quotations omitted). However, \u201c \u2018[w]hen the facts are in dispute the question of probable cause is one of fact for the jury.\u2019 \u201d Martin v. Parker, 150 N.C. App. 179, 182, 563 S.E.2d 216, 218 (2002) (quoting Pitts v. Village Inn Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379 (1978)).\nHere, the evidence establishes plaintiff\u2019s wife was an employee of defendant. Further, plaintiff produced evidence that under an agreement with White, plaintiff was permitted to charge his time working at a second restaurant to his wife. Plaintiff disclosed to Mangano his agreement with White prior to defendant\u2019s contact with the police. However, defendant chose to rely on White\u2019s investigation and assertions to substantiate its allegations of embezzlement by plaintiff.\nDefendant\u2019s allegations of embezzlement were based upon its belief that plaintiff\u2019s wife was not an employee of defendant. At trial, White admitted she informed the police that \u201c[plaintiff\u2019s wife] .was not an employee and had never worked at the premises.\u201d Given defendant\u2019s position as the actual employer of both plaintiff and his wife, defendant was in the best position to determine whether plaintiff\u2019s wife was or was not one of its employees. Instead, defendant presented information to the police alleging plaintiff\u2019s wife was not an employee and that plaintiff was embezzling money from defendant by paying her wages. Viewing the evidence in the light most favorable to plaintiff, the trial court properly submitted to the jury the issue of whether defendant lacked probable cause to commence a prosecution because plaintiff had been given permission by one of defendant\u2019s agents to charge his time to his wife.\nMalice on the Part of Defendant\n\u201cIn an action for malicious prosecution, the malice element may be satisfied by a showing of either actual or implied malice.\u201d Beroth Oil, 173 N.C. App. at 99, 618 S.E.2d at 746 (citation omitted). \u201cImplied malice . . . may be inferred from want of probable cause in reckless disregard of the plaintiffs rights.\u201d Id; see also Williams, 105 N.C. App. at 203, 412 S.E.2d at 901 (\u201cIt is well settled that legal malice may be inferred from a lack of probable cause.\u201d). Thus, the same evidence supporting the trial court\u2019s submission of the element of lack of probable cause to the jury also supports the submission of the issue regarding malice on the part of defendant in initiating embezzlement charges against plaintiff.\nTermination of Earlier Proceeding in Plaintiff\u2019s Favor\n\u201c[A] plaintiff in a malicious prosecution case has shown a favorable termination of a criminal proceeding when he shows that the prosecutor voluntarily dismissed the charges against him.\u201d Jones v. Gwynne, 312 N.C. 393, 400, 323 S.E.2d 9, 13 (1984) (citation omitted). Further, our Courts have held that\n[t]he essential thing is that the prosecution on which the action for damages is based should have come to an end. How it came to an end is not important to the party injured, for whether it ended in a verdict in his favor, or was quashed, or a [nolle prosequi] was entered, he has been disgraced, imprisoned and put to expense, and the difference in the cases is one of degree, affecting the amount of recovery.\nOrdinarily the termination of the proceeding must result in a discharge of the plaintiff so that new process must issue in order to revive the proceeding against him.\nId. (internal citations and quotations omitted).\nHere, the assistant district attorney prosecuting the underlying criminal case against plaintiff dismissed the criminal charges against plaintiff. At trial, the ADA testified that he dismissed the charges against plaintiff only after personally interviewing two witnesses who produced evidence undercutting the theory of his case. Thus, plaintiff has presented sufficient evidence to establish the final element of his claim for malicious prosecution. Id. (holding \u201conce the plaintiff presented evidence in this case that the assistant district attorney had voluntarily dismissed the embezzlement charges against him, he had shown a termination of the criminal proceedings favorable to him\u201d); see also Taylor v. Hodge, 229 N.C. 558, 560, 50 S.E.2d 307, 308 (1948) (\u201cFavorable termination of criminal action against the plaintiff is sufficiently shown by nolle prosequi in the Superior Court.\u201d).\nII\nDefendant next argues \u201c[t]he action should be dismissed for failure to introduce into evidence the warrant or indictment.\u201d In the assignment of error defendant brings forward as the basis of this argument, defendant states: \u201cThe trial court\u2019s denial of Defendant\u2019s Motions for Directed Verdict and Motion for Judgment Notwith: standing the Verdict on the ground that neither the warrant nor the indictment against Plaintiff that formed the basis for his malicious prosecution claim were offered into evidence.\u201d However, in its argument to this Court, defendant does not address the trial court\u2019s denial of its motions for directed verdict or motion for judgment notwithstanding the verdict. Rather, defendant argues plaintiff\u2019s claim for malicious prosecution should be dismissed. This argument does not comport with defendant\u2019s assignment of error and we deem this assignment of error abandoned. N.C. R. App. P. 28(a) (\u201cQuestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d); N.C. R. \u00c1pp. P. 28(b)(6) (\u201cAssignments of error ... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\nIll\nDefendant next argues the trial court erred in denying defendant\u2019s motion for a new trial. Defendant presents four arguments as to why the trial court erred in denying its motion for a new trial: (1) plaintiff failed to produce sufficient evidence to satisfy the four elements of malicious prosecution; (2) the jury was allowed to consider improper evidence; (3) the jury manifestly disregarded the instructions of the trial court; and (4) the verdict reflects excessive damages.\nIt is well established that \u201c \u2018[a] trial judge\u2019s discretionary order made pursuant to Rule 59 for or against a new trial may be reversed only when an abuse of discretion is clearly shown.\u2019 \u201d City of Charlotte v. Ertel, 170 N.C. App. 346, 353, 612 S.E.2d 438, 444 (2005) (quoting Hanna v. Brady, 73 N.C. App. 521, 525, 327 S.E.2d 22, 24 (1985)). \u201cA trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.\u201d Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citation and internal quotations omitted). Furthermore, \u201c[a]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d In re Will of Buck, 350 N.C. 621, 625, 516 S.E.2d 858, 861 (1999) (citation and quotations omitted).\nEvidence of Elements of Malicious Prosecution\nDefendant first argues the trial court erred in denying its motion for a new trial because plaintiff did not present sufficient evidence to establish malicious prosecution. However, a review of the record evidence before this Court shows that while defendant presented evidence in support of its position, plaintiff\u2019s evidence was sufficient to support the jury verdict. See Issue I, supra. The jury verdict is not contrary to the greater weight of the evidence nor contrary to law, and defendant has not shown that the trial court abused its discretion in denying defendant\u2019s motion for a new trial. This assignment of error is overruled.\nAdmission of Prejudicial Hearsay Evidence\nDefendant next argues it is entitled to a new trial because the trial court admitted a letter which was inadmissible hearsay and highly prejudicial. However, defendant did not obtain a ruling as to the admissibility of this evidence at trial. When it became evident that the letter had been written for plaintiff by a third party, defendant brought this matter to the attention of the trial court, but never actually argued the letter should be excluded from evidence. At the close of the discussion between defendant\u2019s trial attorney and the trial court, the court stated, \u201cBut at this point, it\u2019s sort of in the record, without objection.\u201d Defendant\u2019s attorney did not attempt to argue an objection, but merely said, \u201cThank you, Your Honor.\u201d From the record before this Court, it is questionable whether defendant properly objected to the admissibility of the letter when it was discovered that the letter was actually written by someone other than plaintiff. It is clear, however, that defendant never received a ruling on any objection or motion concerning the admissibility of the letter and thus this question is not properly before this Court. N.C. R. App. P. 10(b)(1) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, . . . [and] obtain a ruling upon the party\u2019s request, objection or motion.\u201d) This assignment of error is dismissed.\nJury\u2019s Disregard of Instructions\nDefendant also argues it is entitled to a new trial because the jury manifestly disregarded the trial court\u2019s instructions. Defendant contends that because of the \u201cuncontroverted facts\u201d concerning the element of probable cause for plaintiff\u2019s claim for malicious prosecution, \u201cthe jury\u2019s verdict can only be explained by manifest disregard of the trial court\u2019s instructions.\u201d In light of the reasons stated in Issue I, supra, we find that plaintiff presented sufficient evidence to meet his burden of proof as to the element of probable cause. While defendant presented evidence tending to show it had probable cause to initiate the prior proceedings, plaintiff presented evidence to the contrary. \u201cIt is the jury\u2019s function to weigh the evidence and to determine the credibility of witnesses.\u201d Suarez v. Wotring, 155 N.C. App. 20, 34, 573 S.E.2d 746, 755 (2002), cert. denied, disc. rev. denied, 357 N.C. 66, 579 S.E.2d 107 (2003). Thus the jury could have returned a verdict in favor of plaintiff without disregarding the trial court\u2019s instructions. This assignment of error is overruled.\nExcessive Damages\nDefendant lastly argues the jury\u2019s damage award was excessive and justifies a new trial. However, defendant has not cited any authority in support of this assignment of error and we deem it abandoned. See N.C. R. App. P. 28(b)(6) (\u201cAssignments of error ... in support of which no . . . authority [is] cited, will be taken as abandoned.\u201d); Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (\u201cIt is not the role of the appellate courts ... to create an appeal for an appellant.\u201d), reh\u2019g denied, 359 N.C. 643, 617 S.E.2d 662 (2005).\nNo error at trial; the Judgment and Order of the trial court are affirmed.\nJudges McGEE and ELMORE concur.",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "Carruthers & Roth, RA., by Kenneth R. Keller and William J. McMahon, TV, for -plaintiff-appellee.",
      "Smith Moore, LLP, by James G. Exum, Jr. and Allison O. Van Laningham, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "HUNG NGUYEN, Plaintiff v. BURGERBUSTERS, INC., d/b/a TACO BELL, Defendant\nNo. COA06-607\n(Filed 3 April 2007)\n1. Malicious Prosecution\u2014 motion for judgment notwithstanding verdict \u2014 genuine issue of material fact\nThe trial court did not err by denying defendant\u2019s motion for judgment notwithstanding the verdict even though defendant contends plaintiff failed to prove malicious prosecution of an embezzlement case because: (1) a genuine issue of fact existed as to whether defendant initiated the criminal proceeding when defendant provided all of the information upon which the arrest warrant, indictment, and initial prosecution were based, and defendant\u2019s agents contacted the police and presented information tending to show that plaintiff\u2019s wife was not an employee of defendant; (2) a genuine issue of fact existed as to whether defendant lacked probable cause to commence a prosecution when plaintiff had been given permission by one of defendant\u2019s agents to charge his time to his wife; (3) the same evidence supporting the trial court\u2019s submission of the element of lack of probable cause to the jury also supports the submission of the issue regarding malice on the part of defendant in initiating embezzlement charges against plaintiff; and (4) the assistant district attorney prosecuting the underlying criminal case against plaintiff dismissed the criminal charges against plaintiff.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to comport with assignment of error\nAlthough defendant contends the trial court should have dismissed a claim for malicious prosecution based on plaintiff\u2019s failure to introduce into evidence the warrant or indictment, this issue is dismissed because it does not comport with defendant\u2019s assignment of error as required by N.C. R. App. R 28(a).\n3. Malicious Prosecution\u2014 motion for new trial \u2014 sufficiency of evidence \u2014 letter\u2014instructions\u2014excessive damages\nThe trial court did not abuse its discretion in a malicious prosecution case by denying defendant\u2019s motion for a new trial, because: (1) while defendant presented evidence in support of its position, plaintiff\u2019s evidence was sufficient to support the verdict; (2) although defendant contends the trial court admitted a letter which was allegedly inadmissible hearsay, it is questionable whether defendant properly objected to the admissibility of the letter when it was discovered that the letter was actually written by someone other than plaintiff; (3) although defendant contends the jury manifestly disregarded the trial court\u2019s instructions, the jury could have returned a verdict in favor of plaintiff without disregarding the trial court\u2019s instructions; and (4) although defendant contends the jury\u2019s damage award was excessive, defendant has not cited any authority in support of this assignment of error as required by N.C. R. App. P. 28(b)(6).\nAppeal by defendant from a judgment and order entered 14 November 2005 and 9 December 2005, respectively, by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 10 January 2007.\nCarruthers & Roth, RA., by Kenneth R. Keller and William J. McMahon, TV, for -plaintiff-appellee.\nSmith Moore, LLP, by James G. Exum, Jr. and Allison O. Van Laningham, for defendant-appellant."
  },
  "file_name": "0447-01",
  "first_page_order": 479,
  "last_page_order": 487
}
