220 N.C. App. 212
N.C. Ct. App.2012Background
- Plaintiff insured the Building owned by Defendants for $60,000 and incurred a fire loss in Sept. 2008.
- Ms. Volpe was president and sole shareholder of Cully's; Mr. Volpe was secretary.
- Plaintiff investigated the claim and questioned whether a $6,500 purchase-money deed of trust on the Building was disclosed.
- Ms. Volpe provided a sworn proof of loss and statements denying knowledge of the fire; Mr. Volpe refused examinations under oath.
- Sgt. Lucas arrested Ms. Volpe for obtaining property by false pretenses based on evidence provided by Plaintiff; charges were dismissed.
- Bench trial led to judgment awarding Ms. Volpe damages for malicious prosecution and for unfair trade practices under § 75-1.1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Initiation of criminal proceedings by Plaintiff | Plaintiff did not initiate; it merely informed police. | Loftin's information led to the arrest; initiation by Plaintiff. | Plaintiff initiated the proceedings. |
| Probable cause for the criminal charge | There was probable cause to charge Volpe. | No reasonable belief of probable cause existed. | Probable cause lacking. |
| Immunity under § 58-79-40 | Immunity applies absent fraud or malice. | Malice can be inferred from lack of probable cause; immunity does not bar claim. | Immunity not available given lack of probable cause and malice inference. |
| Section 75-1.1 damages tied to malicious prosecution | Damages barred because malicious prosecution failed. | Damages remain for unfair trade practices independent of breach claims. | Ms. Volpe awarded damages under § 75-1.1; separate damages affirmed. |
| Noerr-Pennington doctrine applicability | Doctrine immunizes Plaintiff’s actions. | Case facts differ from Noerr-Pennington scenarios. | Noerr-Pennington inapplicable. |
Key Cases Cited
- Kirschbaum v. McLaurin Parking Co., 188 N.C.App. 782 (N.C. App. 2008) (four elements of malicious prosecution; initiation presence)
- Harris v. Barham, 35 N.C.App. 13 (N.C. App. 1978) (no initiation by bank employees; mere informant activity insufficient)
- Shillington v. K-Mart Corp., 102 N.C.App. 187 (N.C. App. 1991) (insufficient evidence of initiation where arresting officers acted on police information)
- Best v. Duke University, 337 N.C. 742 (N.C. 1994) (probable cause determinations; mixed question of law/fact)
- Cook v. Lanier, 267 N.C. 166 (N.C. 1966) (malice inferred from want of probable cause)
- Reichhold Chems., Inc. v. Goel, 146 N.C.App. 137 (N.C. App. 2001) (Noerr-Pennington applied to § 75-1.1; objective reasonableness standard)
- Forro Precision, Inc. v. Intern. Bus. Machines Inc., 673 F.2d 1045 (9th Cir. 1982) (Noerr-Pennington/Noerr rationale; information to police case)
- Good Hope Hosp., Inc. v. N.C. Dept. of Health & Human Servs., 174 N.C.App. 266 (N.C. App. 2005) (Noerr applies in state court contexts)