Armstrong v. Velasquez ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-652
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
ROBERT AND JACKIE ARMSTRONG,
Plaintiffs
Wayne County
v.
No. 10 CVD 1815
GLADYS MARIE VELASQUEZ,
Defendant
Appeal by defendant from order entered 13 February 2013 by
Judge Charles P. Gaylor, III, in Wayne County District Court.
Heard in the Court of Appeals 7 November 2013.
Strickland Lapas & Associates, by Dustin B. Pittman, for
Plaintiffs.
The Webster Law Firm, by Walter S. Webster, for Defendant.
ERVIN, Judge.
Defendant Gladys Marie Velasquez appeals from an order
granting summary judgment in favor of Plaintiffs Robert and
Jackie Armstrong with respect to the claims for breach of
contract and malicious prosecution that they asserted against
Defendant as the result of a series of events originating in a
dispute arising from a contract under which Plaintiffs rented a
tract of real property from Defendant on which a residence was
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situated and had an option to purchase that property. On
appeal, Defendant contends that the trial court erred by
granting summary judgment in Plaintiffs’ favor with respect to
their breach of contract claim on the grounds that Plaintiffs
failed to exercise their option in an effective manner and that
the trial court’s damage award had not been properly calculated
and that the trial court erred by granting summary judgment in
Plaintiffs’ favor with respect to their malicious prosecution
claim on the grounds that the record reveals the existence of a
genuine issue of material fact with respect to the issue of
whether Defendant acted without probable cause and with malice.
After careful consideration of Defendant’s challenges to the
trial court’s order in light of the record and the applicable
law, we conclude that the trial court’s order should be reversed
and that this case should be remanded to the Wayne County
District Court for further proceedings not inconsistent with
this opinion.
I. Factual Background
A. Substantive Facts
On 7 November 2003, Plaintiffs entered into a contract with
Defendant1 which provided that:
1
We are not entirely certain that either the actual contract
between the parties or the request for admissions to which
Defendant allegedly failed to respond were presented for the
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1. [Defendant] agrees to allow [Plaintiffs
to] rent the home and land (3.93 acare)
[sic] at 404 Woodview for the period of
four years.
2. [Plaintiffs] will pay the rent of
$780.00 a month due on the 1st no later
than the 5th of the month until ready to
purchase for the asking price of
$119,000.000.
3. [Plaintiffs] will be responsible for
all maintains [sic] and repairs with
the exception of the central air unit
for three months.
4. [Defendant] agrees to allow
[Plaintiffs] to cut back the tree line
no more than 30 feet from [its] present
area.
5. [Plaintiffs] agree to improve the home
by painting, wall papering, remolding
and landscaping as needed at their own
expense.
6. At the time to purchase the home all
money paid toward principal into rent
plus deposit of $1000.00 will be
applied as down payment at closing.
7. If [Plaintiffs] decide not to buy the
home and land, all money will be
considered rent and the deposit of
$1000.000 will be refunded.
trial court’s consideration at the hearing held in connection
with Plaintiffs’ summary judgment motion. However, given that
there does not appear to be any dispute that the documents that
have been presented for our review on appeal are genuine, given
that we would reach the same result even if we elected not to
consider these documents, and given that a decision to consider
these documents will help us to provide better guidance to the
trial court on remand, we have determined that we should
consider these documents in the course of resolving the matters
at issue between the parties on appeal.
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After entering into the contract, Plaintiffs made a total of 48
rent payments in the amount of $780 per month, resulting in a
total payment of $37,440. In addition, Plaintiffs spent a total
of $8,123 while improving the property. However, Plaintiffs
lost the right to purchase the property from Defendant as the
result of a foreclosure stemming from Defendant’s failure to
make the payments required under a note and deed of trust
applicable to the property.
On 3 June 2009, Defendant obtained the issuance of warrants
for arrest charging Ms. Armstrong with misdemeanor larceny in
File No. 09-CR-53477. The misdemeanor larceny charge that
Defendant had lodged against Ms. Armstrong was dismissed because
Defendant failed to appear and because a similar claim had been
dismissed with prejudice in a civil action. A similar warrant
for arrest charging Mr. Armstrong with misdemeanor larceny and
injury to real property was issued in File No. 09-CR-55791 on 2
October 2009 at Defendant’s request. The misdemeanor larceny
and damage to real property charges that Defendant had lodged
against Mr. Armstrong were dismissed because Defendant failed to
appear and because of the two previous dismissals. Plaintiffs
claimed to have suffered humiliation, mental suffering, and loss
of time and to have incurred attorneys’ fees and court costs as
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a result of Defendant’s decision to initiate these criminal
proceedings against them.
B. Procedural Facts
On 30 July 2010, Plaintiffs filed a complaint seeking to
recover damages from Defendant on the basis of breach of
contract and malicious prosecution claims. On 28 February 2011,
Defendant filed a responsive pleading in which she sought to
have Plaintiffs’ complaint dismissed, denied the material
allegations of Plaintiffs’ complaint, and asserted the statute
of frauds and equitable estoppel as affirmative defenses. On 6
November 2012, Plaintiffs served a set of requests for
admissions upon Defendant. On 2 January 2013, Plaintiffs filed
a motion, which was accompanied by an unverified copy of their
complaint, a copy of a discovery request that Plaintiffs had
served upon Defendant, and affidavits signed by both Plaintiffs,
seeking the entry of summary judgment in their favor.
After holding a hearing concerning the merits of
Plaintiffs’ motion on 4 February 2013, the trial court entered
an order on 13 February 2013 granting Plaintiffs’ motion for
summary judgment and requiring Defendant to pay $46,563 in
compensatory damages stemming from Plaintiffs’ breach of
contract claim and $10,000 in compensatory damages stemming from
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Plaintiffs’ malicious prosecution claim. Defendant noted an
appeal to this Court from the trial court’s order.
II. Legal Analysis
A. Standard of Review
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule
56(c). In reviewing an order granting summary judgment, our
task is to “determine, on the basis of the materials presented
to the trial court, whether there is a genuine issue as to any
material fact and whether the moving party is entitled to
judgment as a matter of law.” Coastal Plains Utils., Inc. v.
New Hanover Cnty., 166 N.C. App. 333, 340, 601 S.E.2d 915, 920
(2004) (citing Oliver v. Roberts, 49 N.C. App. 311, 314, 271
S.E.2d 399, 401 (1980), cert. denied, __ N.C. __, 276 S.E.2d 283
(1981)). The evidence that may be considered in deciding
whether to grant or deny a summary judgment motion “includes
admissions in the pleadings, depositions on file, answers to . .
. interrogatories, admissions on file . . ., and any other
material which would be admissible in evidence or of which
judicial notice may properly be taken.” Kessing v. Nat’l
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Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971).
Although “‘[a] verified complaint may be treated as an affidavit
if it (1) is made on personal knowledge, (2) sets forth such
facts as would be admissible in evidence, and (3) shows
affirmatively that the affiant is competent to testify to the
matters stated therein,’” Merritt, Flebotte, Wilson, Webb &
Caruso, PLLC v. Hemmings, 196 N.C. App. 600, 605, 676 S.E.2d 79,
83-84 (quoting Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d
189, 194 (1972)), disc. review denied, 363 N.C. 655, 686 S.E.2d
518 (2009), “the trial court may not consider an unverified
pleading when ruling on a motion for summary judgment.” Allen
R. Tew, P.A. v. Brown, 135 N.C. App. 763, 767, 522 S.E.2d 127,
130 (1999), disc. review improvidently allowed, 352 N.C. 145,
531 S.E.2d 213 (2000).
When a motion for summary judgment is made
and supported as provided in this rule, an
adverse party may not rest upon the mere
allegations or denials of his pleading, but
his response, by affidavits or as otherwise
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial. If he does not so
respond, summary judgment, if appropriate,
shall be entered against him.
N.C. Gen. Stat. § 1A-1, Rule 56(e). In order for this principle
to become applicable, however, the moving party must “show the
lack of a triable issue of fact and . . . that he is entitled to
judgment as a matter of law.” Moore v. Crumpton, 306 N.C. 618,
-8-
624, 295 S.E.2d 436, 441 (1982) (citing Oestreicher v. Am. Nat’l
Stores, Inc., 290 N.C. 118, 131, 225 S.E.2d 797, 806 (1976),
mod. on other grounds in Green v. Duke Power Co., 305 N.C. 603,
606-08, 290 S.E.2d 593, 595-96 (1982)).2 “All inferences of
fact from the proofs offered at the hearing must be drawn
against the movant and in favor of the party opposing the
motion.” Boudreau v. Baughman, 322 N.C. 331, 343, 368 S.E.2d
849, 858 (1988) (citing Page, 281 N.C. at 706, 190 S.E.2d at
194). As a result of the fact that “[s]ummary judgment is a
‘somewhat drastic remedy,’” Phelps-Dickson Builders, L.L.C. v.
Amerimann Partners, 172 N.C. App. 427, 434-35, 617 S.E.2d 664,
669 (2005) (quoting Kessing, 278 N.C. at 534, 180 S.E.2d at
830), trial courts should avoid granting summary judgment except
in appropriate cases. A trial court’s decision to grant a
summary judgment motion is reviewed by this Court on a de novo
basis. Va. Elec. & Power Co. v. Tillett, 80 N.C. App. 383, 385,
2
Although Plaintiffs attempt to dissuade us from even
considering Defendant’s challenges to the trial court’s order on
the grounds that the arguments that she now advances were not
presented to the trial court, we are not persuaded to act in the
manner that Plaintiffs have suggested given that Defendant did
appear at the hearing held with respect to Plaintiffs’ summary
judgment motion, that we have not been presented with any
transcript of the proceedings held before the trial court, and
that Plaintiffs at all times retained the obligation to
establish the absence of a genuine issue of material fact as a
prerequisite for obtaining the entry of summary judgment in
their favor.
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343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457
(1986).
An award of summary judgment is appropriate in a contract
case “when the language of a contract is not ambiguous [and] no
factual issue appears.” Metcalf v. Black Dog Realty, LLC, 200
N.C. App. 619, 633, 684 S.E.2d 709, 719 (2009). “A contract
which is plain and unambiguous on its face will be interpreted
as a matter of law by the court”; on the other hand, ”[i]f the
agreement is ambiguous,” “interpretation of the contract is a
matter for the jury.” Dockery v. Quality Plastic Custom
Molding, Inc., 144 N.C. App. 419, 421-22, 547 S.E.2d 850, 852
(2001). “The trial court’s determination of whether the
language in a [contract] is ambiguous is a question of law . . .
.” Duke Energy Corp. v Malcolm, 178 N.C. App. 62, 65, 630
S.E.2d 693, 695 (citing Bicket v. McLean Sec., Inc., 124 N.C.
App. 548, 553, 478 S.E.2d 518, 521 (1996), disc. review denied,
346 N.C. 275, 487 S.E.2d 538 (1997)), aff’d, 361 N.C. 111, 637
S.E.2d 538 (2006). “An ambiguity exists in a contract when
either the meaning of words or the effect of provisions is
uncertain or capable of several reasonable interpretations.”
Register v. White, 358 N.C. 691, 695, 599 S.E.2d 549, 553
(2004).
B. Breach of Contract Claim
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In their first challenge to the trial court’s order,
Defendant contends that the trial court erred by granting
summary judgment in Plaintiffs’ favor with respect to their
breach of contract claim. More specifically, Defendant contends
that the trial court erroneously granted summary judgment in
favor of Plaintiffs given that the record developed before the
trial court contained no evidence tending to show that
Plaintiffs ever properly exercised the option contained in the
parties’ agreement even though the alternative of properly
exercising the option was left open for a reasonable time and
given that the trial court erroneously allowed Plaintiffs to
recover their rental payments and their expenditures for
maintenance of and improvements to the property as damages with
respect to their breach of contract claim. Defendant’s
arguments have merit.
“An option to purchase real property may be
defined as a contract by which an owner of
real property agrees with another person
that the latter shall have the privilege of
buying the property at a specified price
within a specified time, or within a
reasonable time in the future, and which
imposes no obligation to purchase upon the
person to whom it is given. Until the
holder or owner of an option for the
purchase of property exercises it, he has
nothing but a mere right to acquire an
interest, and has neither the ownership of
nor any interest in the property itself.”
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Sandlin v. Weaver, 240 N.C. 703, 707, 83 S.E.2d 806, 809 (1954)
(quoting 55 Am. Jur., Vendor and Purchaser § 27). In the event
that an option or contract to purchase, like the option contract
at issue here, does not specify the time within which the right
to buy may be exercised, the right must be exercised within a
reasonable time, Lewis v. Allred, 249 N.C. 486, 490, 106 S.E.2d
689, 692 (1959), with time being of the essence of an option
contract, Douglass v. Brooks, 242 N.C. 178, 185, 87 S.E.2d 258,
263 (1955), and with the determination of whether an option was
exercised within a reasonable time being a mixed question of law
and fact unless the relevant facts are simple and do not permit
the trier of fact to reach more than one determination. Yancey
v. Watkins, 17 N.C. App. 515, 519-20, 195 S.E.2d 89, 93, cert.
denied, 283 N.C. 394, 196 S.E.2d 277 (1973). Similarly,
“‘[w]here no terms are stated, it would seem that the contract
should be interpreted to mean payment in cash since this would
be in accord with common practice.’” Kidd v. Earley, 289 N.C.
343, 359, 222 S.E.2d 392, 403 (1976) (quoting T. Christopher,
Options to Purchase Real Property in North Carolina, 44 N.C.L.
Rev. 63, 72 (1965)).
Although the parties agree that a valid option agreement
existed between them, the record contains conflicting evidence
concerning the extent, if any, to which Plaintiffs properly
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exercised their rights under that agreement in a timely manner.
On the one hand, Defendant contends that Plaintiffs’ failure to
tender the $119,000 purchase price within a reasonable time
meant that they failed to exercise their option to purchase the
property in a proper manner and cannot successfully maintain a
breach of contract action against her for that reason.
Plaintiffs, on the other hand, contend that the fact that
Defendant allowed a creditor to foreclose upon the property
before the expiration of the time within which they were
entitled to exercise their rights under the option obviated the
necessity for them to make a showing that they properly
exercised the option in a timely manner. However, given that
the record does not contain any evidence concerning the date on
which Defendant defaulted on her obligations relating to the
property, the date upon which the foreclosure proceeding was
instituted or completed, the date upon which the foreclosure
sale took place, or the date upon which Plaintiffs learned that
any of these events had occurred or were occurring, we are
simply unable to determine whether Plaintiffs failed to properly
exercise their rights under the option contract in a timely
manner or whether Defendant’s conduct deprived them of an
adequate opportunity to do so.3
3
Although Defendant contends that “a period of eighteen
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Aside from the fact that the record discloses the existence
of genuine issues of material fact concerning the extent to
which Plaintiffs properly exercised their rights under the
option agreement in a timely manner or were deprived of the
ability to do so by Defendant’s conduct, the record discloses
the existence of an even more fundamental factual issue that
must be resolved in order for their relative rights under the
option agreement to be properly adjudicated. On the one hand,
Plaintiffs argue that, since the option contract provided that
they would pay rent “until [they were] ready to purchase [the
home] for the asking price of $119,000.00,” the agreement
between the parties allowed them to exercise their rights
whenever they were ready to do so rather than within a
“reasonable time.” On the other hand, Defendant argues that the
fact that the option agreement provided that the property would
only be rented “for the period of four years” contradicts
Plaintiffs’ contention that they had an indefinite period within
months or a year-and-a-half elapsed between the last payment of
rent on 7 November 2007 and foreclosure on 14 May 2009,” the
date of foreclosure upon which Defendant relies stems from
allegations asserted in Plaintiffs’ unverified complaint that
Defendant declined to admit in her answer. As a result, the
evidentiary forecast presented for the trial court’s
consideration simply does not establish the validity of either
party’s position concerning the issue of whether Plaintiffs
failed to properly exercise their rights under the option in a
timely manner or were deprived of the ability to do so by
Defendant’s conduct.
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which to exercise their right to purchase the property. On the
basis of the present record, we are unable to reach any
conclusion other than that either position rests upon a
reasonable interpretation of the language of the option
agreement and that the presence of these potentially
inconsistent contractual provisions suffices to render the
option agreement ambiguous, effectively creating another issue
of fact that must be resolved before the relative rights of the
parties under that agreement can be established. As a result,
for both of these reasons, we conclude that the trial court
erred by granting summary judgment in favor of Plaintiffs with
respect to their breach of contract claim.4
C. Malicious Prosecution
Secondly, Defendant contends that the trial court erred by
granting summary judgment in favor of Plaintiffs with respect to
their malicious prosecution claim on the grounds that the record
4
Aside from the issues highlighted in the text of this
opinion, we note the existence of other factual issues that may
have some bearing upon the proper resolution of Plaintiffs’
breach of contract claim, such as the fact that the record does
not establish the date upon which Plaintiffs apparently ceased
making rental payments or the factors that led them to cease
making those payments. Moreover, without making any conclusive
determination concerning the lawfulness of the damage award
approved in the trial court’s order, we question the
appropriateness of the trial court’s decision to include the
amount of their rental payments and the entire amount that
Plaintiffs paid to improve the property in calculating the
amount of damages that Plaintiffs were entitled to receive in
compensation for Defendant’s alleged breach of contract.
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discloses the existence of a genuine issue of material fact
concerning the extent to which Defendant initiated criminal
proceedings against Plaintiffs in the absence of probable cause
and with malice. Once again, we believe that Defendant’s
argument has merit.
The maintenance of a successful malicious prosecution claim
requires the plaintiff to show that “(1) [the] defendant
initiated the earlier proceeding; (2) malice on the part of
[the] defendant in doing so; (3) [a] lack of probable cause for
the initiation of the earlier proceeding; and (4) termination of
the earlier proceeding in favor of the plaintiff.” Best v. Duke
Univ., 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994). A
defendant has probable cause to initiate a criminal proceeding
against the plaintiff for purposes of a malicious prosecution
action in the event that the defendant was aware of “‘the
existence of such facts and circumstances, known to [the
defendant] at the time, as would induce a reasonable man to
commence a prosecution.’” Cook v. Lanier, 267 N.C. 166, 170,
147 S.E.2d 910, 914 (1966) (quoting Morgan v. Stewart, 144 N.C.
424, 430, 57 S.E. 149, 151 (1907)). Although the absence of
probable cause and the existence of malice are separate
components of a malicious prosecution claim, “implied malice may
be inferred from want of probable cause in reckless disregard of
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plaintiff’s rights.” Pitts v. Village Inn Pizza, 296 N.C. 81,
86-87, 249 S.E.2d 375, 379 (1978), clarified in Best, 337 N.C.
at 751, 448 S.E.2d at 511. For that reason, “constructive
malice may be inferred from want of probable cause and reckless
disregard of plaintiff’s rights under reasonable notice
thereof.” Taylor v. Hodge, 229 N.C. 558, 560, 50 S.E.2d 307,
308 (1948). On the other hand, while “[i]t is true that malice,
in the sense the term is used in actions for malicious
prosecution, may be inferred from want of probable cause, . . .
it is not presumed from such fact alone.” Mitchem v. Nat.
Weaving Co., 210 N.C. 732, 733, 188 S.E.2d 329, 329 (1936).
In the affidavits that they offered in support of their
request for the entry of summary judgment in their favor with
respect to their malicious prosecution claims, Plaintiffs
forecast evidence that Defendant initiated criminal charges
against them and that both charges or sets of charges were
dismissed based upon Defendant’s failure to appear and the fact
that the issues before the court in those criminal cases had
already been addressed in prior civil or criminal cases.5 As a
5
Although the parties have extensively discussed the extent
to which certain inconsistencies between the information
contained in Plaintiffs’ complaint and in Plaintiffs’ affidavits
concerning the exact charges that Defendant initiated against
Plaintiffs suffice to preclude an award of summary judgment in
Plaintiffs’ favor with respect to the malicious prosecution
issue, we need not resolve that dispute given our determination
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result, the undisputed evidence presented for the trial court’s
consideration at the summary judgment hearing shows that
criminal proceedings were initiated against both Plaintiffs and
that those cases were terminated in Plaintiffs’ favor. E.g.,
Cook, 267 N.C. at 170, 147 S.E.2d at 913 (holding that “[t]he
dismissal of the criminal proceeding . . . by reason of the
failure of the complainant to appear and prosecute is a
sufficient termination thereof to support an action for
malicious prosecution based thereon”). As a result, the only
remaining question that we must resolve is whether the
undisputed evidence contained in the present record sufficed to
show that Defendant initiated the criminal proceedings
underlying Plaintiffs’ malicious prosecution claims with malice
and without probable cause.
In support of their contention that the undisputed evidence
established a lack of probable cause and the existence of
malice, Plaintiffs rely on Defendant’s failure to respond to
their requests for admissions, one of which requested Defendant
to admit that:
you failed to truly assess the basis,
specifically for probable cause, for your
criminal matter against the Plaintiff
following the first dismissal of her action,
that the trial court erred by granting summary judgment in
Plaintiffs’ favor with respect to their malicious prosecution
claims on other grounds.
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09 CR 52832, by prosecutors.
According to well-established North Carolina law, a matter “is
admitted unless, within 30 days after service of the request
. . . the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection.”
N.C. Gen. Stat. § 1A-1, Rule 36(a); see also Town of Chapel Hill
v. Burchette, 100 N.C. App. 157, 162, 394 S.E.2d 698, 701 (1990)
(stating that, “[i]n order to avoid having requests for
admissions deemed admitted, a party must respond within the
period of the rule if there is any objection whatsoever to the
request”). As a result, given that Defendant appears to have
failed to respond to Plaintiffs’ requests for admissions, we are
required to assume for the purpose of deciding the issues raised
by Defendant’s challenge to the trial court’s order that
Defendant “failed to truly assess the basis, specifically for
probable cause,” for the criminal charges that she initiated
against Plaintiffs.
Although Plaintiffs contend that a determination that
Defendant failed to adequately investigate the validity of the
charges that she initiated against them conclusively establishes
that Defendant acted maliciously and lacked probable cause, we
are not persuaded by that argument. In essence, Plaintiffs
assume that Defendant’s failure to conduct an adequate
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investigation establishes that Defendant’s claim lacked adequate
factual support, an argument which, we believe, confuses proof
of a deficiency in the procedures that Defendant utilized before
initiating criminal proceedings against Plaintiffs with proof of
a substantive deficiency in the validity of the charges that
Defendant brought against Plaintiffs. Simply put, we do not
believe that the mere fact that a litigant failed to conduct an
adequate investigation before initiating criminal proceedings
against someone else conclusively establishes that the
litigant’s claim was baseless. Thus, the evidentiary forecast
that Plaintiffs provided to the trial court did not, in fact,
establish that Defendant lacked probable cause at the time that
she initiated criminal charges against Plaintiffs.
In addition, even if we were to assume that the evidentiary
forecast that Plaintiffs presented to the trial court sufficed
to establish a lack of probable cause, we are not persuaded
that, at least in this instance, Plaintiffs forecast sufficient
evidence to support a determination that Defendant acted with
malice. Although, as we have already noted, a trier of fact may
infer “constructive malice . . . from want of probable cause and
reckless disregard of [a] plaintiff’s rights under reasonable
notice thereof,” Taylor, 229 N.C. at 560, 50 S.E.2d at 308,
“[t]he absence of probable cause is not the equivalent of
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malice, nor does it establish malice per se, though it is
evidence from which malice may be inferred,” so that “[t]he
presence or absence of malice in its final analysis is a
question of fact to be determined by the jury, while probable
cause is a mixed question of law and fact.”) Turnage v. Austin,
186 N.C. 266, 268, 119 S.E. 359, 361 (1923). In other words,
while a showing that Defendant acted in the absence of probable
cause would support a jury determination that she acted with
malice, it does not suffice to support an award of summary
judgment in Plaintiffs’ favor with respect to the malice issue.
As a result, since the record reveals the existence of a genuine
issue of material fact concerning the extent to which Defendant
initiated criminal proceedings against Plaintiffs with malice
and without probable cause, the trial court erred by granting
summary judgment in favor of Plaintiffs with respect to their
malicious prosecution claim.6
6
Although we need not address the damages issue in any
detail given our decision to reverse the trial court’s decision
to grant summary judgment in Plaintiffs’ favor with respect to
their malicious prosecution claim on liability-related grounds,
we note that the trial court awarded Plaintiffs $10,000 in
compensatory damages with respect to that claim based solely on
Plaintiffs’ conclusory assertions that they had “suffered
humiliation, mental suffering, loss of time, attorney’s fees and
court costs” and had “been damaged in the amount of $10,000.00.”
At an absolute minimum, there is serious question about the
extent to which such conclusory assertions provided adequate
support for the damage award contained in the trial court’s
summary judgment order.
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III. Conclusion
Thus, for the reasons set forth above, we conclude that the
trial court erred by granting summary judgment in favor of
Plaintiffs with respect to both their breach of contract and
malicious prosecution claims. As a result, the trial court’s
order should be, and hereby is, reversed and this case should
be, and hereby is, remanded to the Wayne County District Court
for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).