Chidnese v. Chidnese
210 N.C. App. 299
N.C. Ct. App.2011Background
- Plaintiff and defendant were spouses; separation occurred in 2009 with plaintiff leaving the marital home.
- Defendants initiated a civil action in Buncombe County in January 2009; utilities to the home were turned off shortly after.
- An ex parte restraining order barred plaintiff from entering the home or removing marital property pending a hearing.
- Plaintiff later discovered missing items; defendants obtained a warrant for her arrest based on alleged break-and-enter allegations.
- Plaintiff sued McDonald for malicious prosecution, abuse of process, and IIED; the trial court dismissed those claims with prejudice, prompting this interlocutory appeal by plaintiff against McDonald.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Malicious prosecution against McDonald | Chidnese procured the arrest without probable cause; McDonald aided this action. | McDonald did not participate in initiating the criminal process; she merely provided legal advice. | The malicious prosecution claim against McDonald survives. |
| Abuse of process in the civil action | Defendants used ex parte TRO and related motions to harass plaintiff. | The actions were within proper judicial processes and purposes. | Abuse of process in the civil action stated plausibly. |
| Abuse of process in the criminal action | McDonald aided in improper continuance and submission of false letters. | Continuance motion and letters were for proper adjudication of client’s claim. | Abuse of process in the criminal action not stated; claims to that effect affirmed dismissal. |
| IIED against McDonald | Conduct was extreme and outrageous. | Conduct did not exceed the bounds of decency. | IIED claim properly dismissed. |
Key Cases Cited
- Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979) (distinguishes abuse of process vs. malicious prosecution; improper use after process issued is required for abuse)
- Jackson v. Jackson, 201 S.E.2d 722 (1974) (attorney liability for malicious prosecution when advising a client to initiate prosecution; vicarious liability limited)
- Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950) (finality concept for Rule 54(b) judgments in multi-party actions)
- Hoots v. Pryor, 106 N.C.App. 397, 417 S.E.2d 269 (1992) (Rule 54(b) final judgment certification reviewability; no just reason to delay)
- Dobson v. Harris, 134 N.C.App. 573, 521 S.E.2d 710 (1999) (high threshold for extreme and outrageous conduct; IIED requires more than mere wrongdoing)
- Moore v. City of Creedmoor, 120 N.C.App. 27, 460 S.E.2d 899 (1995) (IIED requires extreme and outrageous conduct; not satisfied here)
- Pinewood Homes, Inc. v. Harris, 184 N.C.App. 597, 646 S.E.2d 826 (2007) (abuse of process requires post-initiation misuse of process; attempting coercion through process must be shown)
- Hewes v. Johnston, 61 N.C.App. 603, 330 S.E.2d 120 (1985) (abuse of process principles relating to ulterior motive and improper use)
- Petrou v. Hale, 43 N.C.App. 655, 260 S.E.2d 130 (1979) (illustrates improper use after initiation in abuse of process)