{ "id": 4156336, "name": "BERNARD SCARBOROUGH, Plaintiff v. DILLARD'S INC., formerly Dillard Department Stores, Inc., a North Carolina Corporation, Defendant", "name_abbreviation": "Scarborough v. Dillard's Inc.", "decision_date": "2008-02-05", "docket_number": "No. COA07-281", "first_page": "430", "last_page": "441", "citations": [ { "type": "official", "cite": "188 N.C. App. 430" } ], "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": "632 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636400 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "803" }, { "page": "803-04", "parenthetical": "internal citations omitted" }, { "page": "803" }, { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0800-01" ] }, { "cite": "568 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "225" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250786 ], "year": 2002, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0532-01" ] }, { "cite": "323 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "19", "parenthetical": "holding that the jury could have found the employer's superficial and cursory investigation of an employee's alleged embezzlement to be a \"reckless and wanton disregard of the plaintiff's rights\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757224 ], "year": 1984, "pin_cites": [ { "page": "409-10", "parenthetical": "holding that the jury could have found the employer's superficial and cursory investigation of an employee's alleged embezzlement to be a \"reckless and wanton disregard of the plaintiff's rights\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0393-01" ] }, { "cite": "327 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720365 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0321-01" ] }, { "cite": "317 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "20" }, { "page": "20-21" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526226 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "320" }, { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0315-01" ] }, { "cite": "146 S.E. 395", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "196 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628339 ], "year": 1929, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc/196/0562-01" ] }, { "cite": "179 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234666 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "130" }, { "page": "132" }, { "page": "132" }, { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0127-01" ] }, { "cite": "626 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635180, 12635181 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/626/0649-01", "/se2d/626/0649-02" ] }, { "cite": "613 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632990 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "507" }, { "page": "507", "parenthetical": "citations omitted" }, { "page": "560-61" }, { "page": "507-08" }, { "page": "562" }, { "page": "509" }, { "page": "508", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/613/0503-01" ] }, { "cite": "632 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636400 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "803" } ], "opinion_index": 1, "case_paths": [ "/se2d/632/0800-01" ] }, { "cite": "525 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "484" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241064 ], "year": 2000, "pin_cites": [ { "page": "591" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0587-01" ] }, { "cite": "360 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798368, 3793536, 3790594, 3793379, 3793907, 3796086, 3788826, 3791163 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/360/0177-01", "/nc/360/0177-03", "/nc/360/0177-04", "/nc/360/0177-02", "/nc/360/0177-05", "/nc/360/0177-08", "/nc/360/0177-06", "/nc/360/0177-07" ] }, { "cite": "170 N.C. App. 555", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006084 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "559" }, { "page": "559-60" }, { "page": "560" } ], "opinion_index": 1, "case_paths": [ "/nc-app/170/0555-01" ] }, { "cite": "323 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "18", "parenthetical": "holding that the jury could have found the employer's superficial and cursory investigation of an employee's alleged embezzlement \" 'reckless and wanton disregard of the plaintiff's rights' \"" } ], "opinion_index": 1 }, { "cite": "312 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757224 ], "year": 1984, "pin_cites": [ { "page": "409-10", "parenthetical": "holding that the jury could have found the employer's superficial and cursory investigation of an employee's alleged embezzlement \" 'reckless and wanton disregard of the plaintiff's rights' \"" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0393-01" ] }, { "cite": "317 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "20-21", "parenthetical": "holding that the jury could find that the plaintiff-employee was prosecuted in a reckless and wanton manner where the employee who had plaintiff arrested for theft failed to seek out existing evidence in plaintiff's favor" } ], "opinion_index": 1 }, { "cite": "69 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526226 ], "year": 1984, "pin_cites": [ { "page": "320", "parenthetical": "holding that the jury could find that the plaintiff-employee was prosecuted in a reckless and wanton manner where the employee who had plaintiff arrested for theft failed to seek out existing evidence in plaintiff's favor" } ], "opinion_index": 1, "case_paths": [ "/nc-app/69/0315-01" ] }, { "cite": "179 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234666 ], "year": 2006, "pin_cites": [ { "page": "132" } ], "opinion_index": 1, "case_paths": [ "/nc-app/179/0127-01" ] } ], "analysis": { "cardinality": 869, "char_count": 26957, "ocr_confidence": 0.753, "pagerank": { "raw": 6.680858031100589e-08, "percentile": 0.4065320024449302 }, "sha256": "d0e99782b7afbb2a61347996dd2214e05e546bc57aee9aa3567b7f3f89848e76", "simhash": "1:d16aa26adf757dd7", "word_count": 4308 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs.", "Judge HUNTER dissents in a separate opinion." ], "parties": [ "BERNARD SCARBOROUGH, Plaintiff v. DILLARD\u2019S INC., formerly Dillard Department Stores, Inc., a North Carolina Corporation, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nA motion for judgment notwithstanding the verdict should be denied if there is more than a scintilla of evidence to support the plaintiffs prima facie case. Here, the plaintiff argues the trial court erred in granting the defendant\u2019s motion for judgment notwithstanding the verdict as to punitive damages because there was sufficient evidence to support the jury\u2019s punitive damages award. Because we find more than a scintilla of evidence to support the jury\u2019s punitive damages award, we must reverse the trial court\u2019s grant of judgment notwithstanding the verdict as to punitive damages.\nThe evidence presented at trial tended to show that on 27 October 1997, Plaintiff Bernard Scarborough worked in the ladies\u2019 shoe department of Dillard\u2019s Department Store, where he had been employed part-time for approximately two years. Around 8:00 p.m., Mr. Scarborough waited on two women for approximately thirty-five to forty minutes, showing them about twenty pairs of shoes. When one of the women decided to purchase two pairs of shoes, Mr. Scarborough took the shoes to the register, scanned the shoes, and placed the two pairs in a bag. As Mr. Scarborough completed the transaction, the other woman came to the register and asked him about trying on a pair of shoes. Mr. Scarborough voided the first transaction so that he could check the price of the shoes for the second woman, and so that his employee number would not remain in the register when he went into the stockroom to look for the shoes. Mr. Scarborough was unable to find shoes in the woman\u2019s width and agreed to stretch the shoes for her. The two women stated that they would return for the third pair in a few minutes. The two women then left Dillard\u2019s with two pairs of shoes that were not paid for.\nThe women later returned and asked Mr. Scarborough if he could hold the third pair of shoes until the next day. Mr. Scarborough agreed, and the woman wanting the shoes wrote her name down on a piece of paper, which Mr. Scarborough attached to the shoe box along with his employee number so he could receive credit for the sale.\nAfter the two women left, two employees who had watched the transaction, Lynette Withers and Selma Brown, looked at the journal tape and confirmed that the women had taken the first two pair of shoes without paying for them. Ms. Brown told Mr. Scarborough that the sales transaction was missing, so he called Steven Gainsboro, the manager on duty that night, to tell him what happened. Mr. Gainsboro told Mr. Scarborough that he would discuss the incident the next day with David Hicklin, the shoe department manager.\nWhen Mr. Scarborough arrived at Dillard\u2019s the next evening, he met with Mr. Hicklin, Kevin McClusky, the store manager, and Officer Cullen Wright, a Dillard\u2019s loss prevention employee, who also worked full time as an officer for the Charlotte-Mecklenburg Police Department. During the two-hour interview, Mr. Scarborough explained that he had made a mistake, took responsibility for the incident, and offered to pay Dillard\u2019s for the shoes. Mr. Scarborough also offered to submit to a polygraph exam. Mr. McClusky accused Mr. Scarborough of knowing the two women and threatened to have him prosecuted for embezzlement and ruin his full-time job at First Union Bank if he did not provide the names of the women. Mr. Scarborough stated that he did not know the women and therefore was unable to provide their names, although he did mention the name \u201cBetty.\u201d Officer Wright also participated in questioning Mr. Scarborough about the incident and took a written statement from him. At the end of the interview, Mr. McClusky terminated Mr. Scarborough for embezzlement.\nAfter Mr. Scarborough\u2019s termination, Officer Ken Schul, another Dillard\u2019s security guard who was employed full time as a sergeant for the Charlotte-Mecklenburg Police Department, took statements from three Dillard\u2019s employees \u2014 Ms. Withers, Ms. Brown, and Mr. Gainsboro \u2014 about Mr. Scarborough\u2019s failed transaction. On 12 November 1997, Officer Schul met with Assistant District Attorney Nathaniel Proctor to present a case against Mr. Scarborough. Assistant District Attorney Proctor then authorized the prosecution of Mr. Scarborough for embezzlement.\nApproximately two weeks after his termination from Dillard\u2019s, Mr. Scarborough was arrested in the atrium of One First Union Center in Charlotte, on his way to his office. Uniformed police officers handcuffed Mr. Scarborough and escorted him outside to a police car. Upon his release from jail, Mr. Scarborough returned to First Union to find that his employment was terminated because of his arrest for embezzlement, and he would only be eligible to return to work if the charges against him were cleared.\nOn 27-28 May 1998, Mr. Scarborough was tried for embezzlement in Superior Court, Mecklenburg County resulting in a jury verdict of. not guilty.\nOn 4 April 2001, Mr. Scarborough initiated this action for malicious prosecution. Following a trial in January 2005, the jury returned a verdict in Mr. Scarborough\u2019s favor, awarding him $30,000 in compensatory damages and $77,000 in punitive damages for malicious prosecution. On 24 February 2005, the trial court granted Dillard\u2019s motion for judgment notwithstanding the verdict and entered an order setting aside the punitive damages award. Mr. Scarborough appealed, and on 1 August 2006, this Court remanded the case because, contrary to N.C. Gen. Stat. \u00a7 1D-50, the trial court\u2019s 24 February 2005 order contained no reasons as to why the trial court set aside the jury verdict. Scarborough v. Dillard\u2019s, Inc., 179 N.C. App. 127, 130, 632 S.E.2d 800, 803 (2006). Upon remand, the trial court filed an order on 8 January 2007 indicating the basis for its judgment not withstanding the verdict. Mr. Scarborough appealed from' that order.\nOn appeal, Mr. Scarborough contends the trial court erred by granting the judgment not withstanding the verdict because there was sufficient evidence to support the jury\u2019s punitive damages award. We must agree.\nWe review the trial court\u2019s grant of a judgment notwithstanding the verdict de novo, and the standard of review is well established:\nOn appeal the standard of review for a judgment notwithstanding the verdict is the same as that for a directed verdict, whereby this Court determines whether the evidence was sufficient to go to the jury. The standard is high for the moving party, as the motion should be denied if there is more than a scintilla of evidence to support the plaintiffs prima facie case. The evidence supporting the plaintiffs claims must be taken as true, and all contradictions, conflicts, and inconsistencies must be resolved in the plaintiffs favor, giving the plaintiff the benefit of every reasonable inference.\nId. at 132, 632 S.E.2d at 803-04 (internal citations omitted). Our Supreme Court has defined \u201cscintilla of evidence\u201d as \u201cvery slight evidence.\u201d State v. Lawrence, 196 N.C. 562, 582, 146 S.E. 395, 405 (1929).\nPunitive damages may only be awarded where the claimant proves the defendant is liable for compensatory damages and proves the existence of fraud, malice, or willful or wanton conduct by clear and convincing evidence. N.C. Gen. Stat. \u00a7 1D-15. A party need only show one of the aggravating factors to recover punitive damages. Scarborough, 179 N.C. App. at 132, 632 S.E.2d at 804 (citing Williams v. Boylan-Pearce, Inc., 69 N.C. App. 315, 320, 317 S.E.2d 17, 20 (1984), aff'd per curiam, 313 N.C. 321, 327 S.E.2d 870 (1985)). Under our General Statutes, punitive damages may be awarded against a corporation only if \u201cthe officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.\u201d N.C. Gen. Stat. \u00a7 1D-15(c).\nMr. Scarborough first argues that the judgment notwithstanding the verdict was in error because there was sufficient evidence of willful or wanton conduct. We agree.\nAs defined in our punitive damages statute, willful or wanton means \u201cthe conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.\u201d N.C. Gen. Stat. \u00a7 1D-5(7) (2005). Willful or wanton conduct is \u201cmore than gross negligence.\u201d Id. An employer\u2019s failure to fully investigate an incident before causing an employee to be prosecuted for embezzlement is sufficient for a finding of reckless and wanton disregard of the employee\u2019s rights. See Jones v. Gwynne, 312 N.C. 393, 409-10, 323 S.E.2d 9, 19 (1984) (holding that the jury could have found the employer\u2019s superficial and cursory investigation of an employee\u2019s alleged embezzlement to be a \u201creckless and wanton disregard of the plaintiff\u2019s rights\u201d); Williams, 69 N.C. App. at 320, 317 S.E.2d at 20-21 (holding that the jury could find the plaintiff-employee was prosecuted in a reckless and wanton manner, where the employee who had plaintiff arrested failed to take an inventory, did not check plaintiffs sales book, and did not check with anyone regarding plaintiff\u2019s personnel record or character).\nMr. Scarborough argues that Dillard\u2019s acted willfully and wantonly by quickly procuring his prosecution for embezzlement, despite evidence that Mr. Scarborough made a mistake due to forgetfulness, and knowing that it would cause him to lose his full-time job at First Union Bank. Mr. Scarborough testified that during the meeting the day after the failed transaction, Mr. McClusky accused him of knowing the two women and repeatedly threatened to \u201cmess up\u201d his job at First Union if Mr. Scarborough did not tell him who the customers were. Mr. Scarborough testified that he told Mr. McClusky that he did not know the women, but he believed one of them was named Betty. At the time of the meeting, Dillard\u2019s was already in possession of the piece of paper with the name Betty Jordan on it, as Mr. Scarborough had placed it on the shoe box he had put on hold for one of the women. Officer Wright testified that although he did not personally find the paper with \u201cBetty Jordan\u201d written on it, a document was found in a pair of shoes that was in Dillard\u2019s possession.\nThat Mr. McClusky threatened to \u201cmess up\u201d Mr. Scarborough\u2019s full-time job is also evidence that he knew prosecuting him for embezzlement would harm Mr. Scarborough. Giving Mr. Scarborough the benefit of every reasonable inference, Dillard\u2019s possession of the paper with the name \u201cBetty Jordan,\u201d its failure to attempt to find or contact Ms. Jordan, and Mr. McClusky\u2019s threats to \u201cmess up\u201d Mr. Scarborough\u2019s full-time job at First Union, present more than a scintilla of evidence that Dillard\u2019s showed a conscious and intentional disregard for Mr. Scarborough\u2019s rights. See N.C. Gen. Stat. \u00a7 1D-5(7).\nMr. Scarborough next argues that the judgment notwithstanding the verdict was in error because there was sufficient evidence of malice. We agree.\nAs defined by the punitive damages statute, malice means \u201ca sense of personal ill will toward the claimant that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the claimant.\u201d N.C. Gen. Stat. \u00a7 1D-5(5).\nHere, Mr. Scarborough argues that the jury could have inferred ill will from evidence of a prior difficulty between Mr. Scarborough and Mr. McClusky and from evidence that Dillard\u2019s considered him to be inept. Mr. Scarborough testified that when he met with Dillard\u2019s management the day after his failed transaction, the first thing Mr. McClusky said to him was, \u201cI cannot believe you\u2019re in my office again.\u201d Mr. McClusky was referring to Mr. Scarborough\u2019s recent written reprimand for referring a customer to another store for tennis shoes. Taking the evidence supporting Mr. Scarborough\u2019s claims as true and resolving any inconsistencies in his favor, we find that Mr. McClusky\u2019s mention of a prior difficulty with Mr. Scarborough is more than a scintilla of evidence of his personal ill will toward Mr. Scarborough.\nAlthough we conclude there is sufficient evidence of malice and willful and wanton conduct, for punitive damages to be awarded against Dillard\u2019s, we must also determine whether Dillard\u2019s officers, directors, or managers participated in or condoned the conduct giving rise to punitive damages. N.C. Gen. Stat. \u00a7 1D-15. We have defined \u201cmanager\u201d as \u201cone who conducts, directs, or supervises something.\u201d Miller v. B.H.B. Enterprises, Inc., 152 N.C. App. 532, 540, 568 S.E.2d 219, 225 (2002).\nHere, the record shows that Mr. McClusky was the store manager of Dillard\u2019s at the time Mr. Scarborough was terminated and prosecuted. Mr. Scarborough testified that during his meeting with Mr. McClusky, Mr. Hicklin, and Officer Wright, Mr. McClusky repeatedly threatened to charge him with embezzlement and \u201cmess up\u201d his full-time job at First Union if he did not tell him the names of the customers. Mr. Scarborough also testified that Mr. McClusky stated to him, \u201cI cannot believe you\u2019re in my office again.\u201d Because Mr. McClusky participated in the conduct constituting the aggravating factors of willful and wanton conduct and malice, we find that section 1D-15(c) is satisfied, thereby subjecting Dillard\u2019s to punitive damages. N.C. Gen. Stat. \u00a7 1D-15(c).\nIn sum, because we find sufficient evidence of malice, willful and wanton conduct, and manager participation to support the jury\u2019s punitive damages award, we must reverse the trial court\u2019s grant of judgment notwithstanding the verdict as to punitive damages.\nReversed.\nJudge JACKSON concurs.\nJudge HUNTER dissents in a separate opinion.\n. Scarborough v. Dillard\u2019s, Inc., 179 N.C. App. 127, 132, 632 S.E.2d 800, 803 (2006); N.C. Gen. Stat. \u00a7 1D-15 (2005).\n. The register journal tape showed that the transaction for the first two pairs of shoes had been voided but not re-rung. The tape also showed that the transaction for the third pair of shoes had not included sales tax, which would support the contention that it was a price check.\n. We note that Gainsboro is also spelled \u201cGainesborough\u201d in the transcript.\n. We deny Dillard\u2019s motion to dismiss because Mr. Scarborough correctly appeals from the trial court\u2019s 8 January 2007 order. As we stated in the previous Scarborough case, the 24 February 2005 order was in error because \u201c[cjontrary to the requirements of section ID-50 . .. [it] contains no reasons as to why the trial court set aside the jury\u2019s verdict on the punitive damages claim.\u201d Scarborough, 179 N.C. App. at 130, 632 S.E.2d at 803.\n. The trial court\u2019s 8 January 2007 order concluded \u201c[t]here was no clear and convincing evidence that Dillard\u2019s (the corporation) instituted a malicious prosecution of the plaintiff,\u201d but it is not clear whether the order was based on insufficient evidence of malice, of willful and wanton conduct, or of management involvement.", "type": "majority", "author": "WYNN, Judge." }, { "text": "HUNTER, Judge,\ndissenting.\nBecause I believe Bernard Scarborough (\u201cplaintiff\u2019) did not prove by clear and convincing evidence that defendant\u2019s actions constituted willful or wanton conduct or malice warranting punitive damages, I respectfully dissent.\nI.\nThe majority states that our standard of review is whether or not a scintilla of evidence existed to support the jury\u2019s award. This is true for our review of the granting of a motion for judgment notwithstanding the verdict. However, per statute, the evidentiary standard for punitive damages is whether the existence of an aggravating factor \u2014 fraud, malice, or willful or wanton conduct- \u2014 -was proven by \u201cclear and convincing evidence.\u201d N.C. Gen. Stat. \u00a7 1D-15(b) (2005). One of this Court\u2019s previous cases is particularly helpful in clarifying the interaction between these standards.\nIn Schenk v. HNA Holdings, Inc., 170 N.C. App. 555, 559, 613 S.E.2d 503, 507, disc. review denied, 360 N.C. 177, 626 S.E.2d 649 (2005), this Court considered a trial court\u2019s grant of the defendant\u2019s motion for directed verdict on the issue of punitive damages. As we have noted many times, \u201c[o]n appeal, the standard of review for a judgment notwithstanding the verdict is the same as that for a directed verdict[.]\u201d Scarborough v. Dillard\u2019s, Inc., 179 N.C. App. 127, 132, 632 S.E.2d 800, 803 (2006).\n\u201cThe standard of review... is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient \u00e1s a matter of law to be submitted to the jury.\u201d Our North Carolina statutes establish the requirements for punitive damages as follows:\nPunitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:\n(1) Fraud.\n(2) Malice.\n(3) Willful or wanton conduct.\nN.C. Gen. Stat. \u00a7 1D-15(a) (2003). The existence of the aggravating factor must be proved by clear and convincing evidence. N.C. Gen. Stat. \u00a7 1D-15(b) (2003). ... To award punitive damages against a corporation, \u201cthe officers, directors, or managers of the corporation [must have] participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.\u201d N.C. Gen. Stat. \u00a7 1D-15(c) (2003). . . . [T]he issue on appeal is whether there was sufficient evidence that the officers, directors, or managers of defendant, HNA Holdings, Inc., participated in or condoned willful or wanton conduct. See id.\nPlaintiffs contend Winter\u2019s order to destroy Whitlock\u2019s memorandum constituted willful and wanton conduct by defendant. However, plaintiffs have not proved by clear and convincing evidence that destruction of the memorandum constituted \u201cconscious and intentional disregard of and indifference to the rights and safety of others.\u201d N.C. Gen. Stat. \u00a7 1D-5(7).\nSchenk, 170 N.C. App. at 559-60, 613 S.E.2d at 507 (citations omitted) (emphasis added). The Court went on to examine the other evidence brought by the defendant under a clear and convincing standard. Id. at 560-61, 613 S.E.2d at 507-08. When the Court concluded no sufficient evidence had been presented, it overruled the plaintiffs\u2019 assignment of error regarding the directed verdict. Id. at 562, 613 S.E.2d at 509.\n.11.\nAs such, it seems clear that the question before this Court is whether plaintiff provided clear and convincing evidence of willful or wanton conduct or malice on the part of defendant. Because I believe no such evidence was presented, I would affirm.\n\u201cThe clear and convincing evidence standard is greater than a preponderance of the evidence standard required in most civil cases and requires \u2018evidence which should \u201cfully convince.\u201d \u2019 \u201d Schenk, 170 N.C. App. at 560, 613 S.E.2d at 508 (citation omitted). Punitive damages may be awarded against a corporation only if \u201cthe officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.\u201d N.C. Gen. Stat. \u00a7 1D-15(c). Thus, plaintiff must prove that (1) the officers, directors, or managers of defendant Dillard\u2019s participated in or condoned (2) conduct that was (a) fraudulent, (b) malicious, or (c) willful and wanton. This he cannot do.\nA.\nFirst, as to the conduct of Dillard\u2019s employees, we note that plaintiff did not assign error to any of the trial court\u2019s findings of fact, and as such, they are presumed to be correct. See Okwara v. Dillard Dep\u2019t Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000). Among these unchallenged findings of fact are these: Schul met with the assistant district attorney solely in his capacity with the Charlotte-Mecklenburg Police Department, not as a part-time employee of Dillard\u2019s; Dillard\u2019s would not have been allowed to take part in any way in the initiation of a felony prosecution; Dillard\u2019s took no part in the proceedings before the grand jury to obtain an indictment against plaintiff; and there was no evidence at trial that Dillard\u2019s had any role in the location, timing, or circumstances of plaintiff\u2019s arrest. Taking these findings as true, it is clear that plaintiff did not provide clear and convincing evidence to the trial court that Dillard\u2019s officers, directors, or managers took part in the actions complained of. As such, he has not satisfied the first element to obtain punitive damages.\nB.\nPlaintiff next argues that there was sufficient evidence of (a) willful or wanton or (b) malicious conduct. I disagree.\n1.\nIn 1995, our legislature enacted a statute regarding punitive damages that heightened the standard of proof for the \u201caggravating factors\u201d \u2014 fraud, malice, or willful or wanton conduct \u2014 to clear and convincing evidence, and also established that punitive damages will not be awarded on the basis of vicarious liability. 1995 N.C. Sess. Laws ch. 514, \u00a7 1D-15. \u201cWillful or wanton\u201d means \u201cthe conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.\u201d N.C. Gen. Stat. \u00a7 1D-5(7) (2005). Willful or wanton conduct is \u201cmore than gross negligence.\u201d Id.\nPlaintiff argues that Dillard\u2019s acted willfully and wantonly by quickly procuring his prosecution for embezzlement, despite evidence that plaintiff made a mistake due to forgetfulness and knowing that it would cause him to lose his full-time job at First Union Bank. In support of this claim, plaintiff cites two cases in which our Supreme Court found sufficient evidence for punitive damages based on \u201ca reckless and wanton disregard of plaintiff\u2019s rights.\u201d See Jones v. Gwynne, 312 N.C. 393, 409-10, 323 S.E.2d 9, 18 (1984) (holding that the jury could have found the employer\u2019s superficial and cursory investigation of an employee\u2019s alleged embezzlement \u201c \u2018reckless and wanton disregard of the plaintiff\u2019s rights\u2019 \u201d); Williams v. Boylan-Pearce, Inc., 69 N.C. App. 315, 320, 317 S.E.2d 17, 20-21 (1984) (holding that the jury could find that the plaintiff-employee was prosecuted in a reckless and wanton manner where the employee who had plaintiff arrested for theft failed to seek out existing evidence in plaintiff\u2019s favor).\nHowever, these cases were decided prior to the enactment of our current punitive damages statute in 1995, discussed above. As such, the standard of proof in those cases was not clear and convincing, and these cases are no longer applicable.\nPlaintiff further argues that Dillard\u2019s acted willfully and wantonly by failing to inquire into his character or record and failing to obtain statements from all possible witnesses, including Betty Jordan, one of the two women who received the shoes, before terminating him and procuring his prosecution for embezzlement. Plaintiff also argues that Dillard\u2019s failed to present exculpatory evidence to the police, as the police officers were not told that Mr. Gainsboro, the manager on duty on the night of the incident, stated that he thought Mr. Scarborough made \u201ca mistake.\u201d\nHowever, Officers Wright and Schul took various steps to investigate plaintiff\u2019s possible embezzlement. The day after the incident, before plaintiff was terminated, he was interviewed by Mr. Hicklin, Mr. McClusky, and Officer Wright, and Officer Wright took a written statement from him. At that time, Dillard\u2019s had the register tape from the previous evening confirming that no payment was received for the shoes, and Mr. Gainsboro had spoken to witnesses Ms. Brown and Ms. Withers, the latter of whom believed Mr. Scarborough had purposely given away the shoes. Before Officer Schul met with Assistant District Attorney Proctor to discuss the embezzlement charge, he interviewed and obtained written statements from Ms. Brown, Ms. Withers, and Dillard\u2019s manager Mr. Gainsboro. Ms. Withers stated that Mr. Gainsboro seemed to think that Mr. Scarborough made \u201ca mistake,\u201d but Mr. Gainsboro did not assert such in his statement to police. Although Dillard\u2019s could have conducted a more thorough investigation, including interviewing positive character witnesses and Betty Jordan, Mr. Scarborough has not proven by clear and convincing evidence that Dillard\u2019s actions constituted a reckless and wanton disregard of his rights.\n2.\nPlaintiff next argues that there was sufficient evidence of malice. I disagree.\n\u201cMalice\u201d is defined by statute as \u201ca sense of personal ill will toward the claimant that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the claimant.\u201d N.C. Gen. Stat. \u00a7 1D-5(5) (2005). Plaintiff argues that the jury could have inferred such ill will from evidence that Dillard\u2019s store manager, Mr. McClusky, had previously reprimanded him for referring a customer to another shoe store, and from evidence that Dillard\u2019s considered plaintiff to be inept. These rationales are speculative and depend on a series of inferences that could have been made by the jury, but certainly do not constitute clear and convincing evidence that defendant acted with malice.\nIII.\nBecause I believe that the correct standard in this case is the clear and convincing standard set out by statute, and that plaintiff has not met that standard, I would affirm.", "type": "dissent", "author": "HUNTER, Judge," } ], "attorneys": [ "David Q. Burgess, for plaintiff-appellant.", "Poyner & Spruill, L.L.P., by David W. Long and Douglas M. Martin, for defendant-appellee." ], "corrections": "", "head_matter": "BERNARD SCARBOROUGH, Plaintiff v. DILLARD\u2019S INC., formerly Dillard Department Stores, Inc., a North Carolina Corporation, Defendant\nNo. COA07-281\n(Filed 5 February 2008)\nMalicious Prosecution\u2014 punitive damages \u2014 willful or wanton conduct \u2014 malice\nThe trial court erred by granting judgment notwithstanding the verdict (JNOV) in a malicious prosecution case in regard to the jury\u2019s punitive damages award, and the grant of JNOV as to punitive damages is reversed, because: (1) an employer\u2019s failure to fully investigate an incident before causing an employee to be prosecuted for embezzlement is sufficient for a finding of reckless and wanton disregard of the employee\u2019s rights, and there was sufficient evidence of willful or wanton conduct including defendant store\u2019s possession of the paper with the customer name they were attempting to retrieve from plaintiff, defendant\u2019s failure to attempt to find or contact the customer, and the store manager\u2019s threats to \u201cmess up\u201d plaintiff\u2019s full-time job; (2) there was sufficient evidence of malice including the store manager mentioning a prior difficulty with plaintiff evidencing personal ill-will; and (3) the requirement under N.C.G.S. \u00a7 1D-I5(c) that the officers, directors, or managers participated in or condoned the conduct giving rise to punitive damages was satisfied since the store manager participated in the conduct constituting the aggravating factors of willful and wanton conduct and malice.\nJudge HUNTER dissenting.\nAppeal by plaintiff from order entered 8 January 2007 by Judge Hugh B. Campbell, Jr. in District Court, Mecklenburg County. Heard in the Court of Appeals 18 September 2007.\nDavid Q. Burgess, for plaintiff-appellant.\nPoyner & Spruill, L.L.P., by David W. Long and Douglas M. Martin, for defendant-appellee." }, "file_name": "0430-01", "first_page_order": 460, "last_page_order": 471 }