IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-642

Filed: 20 December 2016

Orange County, No. 15 CVS 1475

KENNETH I. MOCH, Plaintiff,

v.

A.M. PAPPAS & ASSOCIATES, LLC, ART M. PAPPAS, and FORD S. WORTHY,

Defendants.

Appeal by plaintiff from order entered 25 February 2016 by Judge James E. 

Hardin, Jr. in Orange County Superior Court. Heard in the Court of Appeals 15 

November 2016.

Spilman Thomas & Battle, PLLC, by Jeffrey D. Patton, Nathan B. Atkinson, 

and Erin Jones Adams, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Michael W. 

Mitchell, Christopher G. Smith, and Clifton L. Brinson; and Tharrington 

Smith, LLP, by Wade M. Smith, for defendants-appellees.

ZACHARY, Judge.

Kenneth I. Moch (plaintiff) appeals from an order dismissing his claims against 

A.M. Pappas & Associates, LLC, Art M. Pappas, and Ford S. Worthy (defendants) for 

abuse of process and unfair or deceptive trade practices. Plaintiff’s complaint was 

dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for failure to state a claim 

upon which relief can be granted. On appeal plaintiff argues that the trial court erred
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and that his complaint included factual allegations that established all of the 

elements of both claims. We conclude that the trial court’s order should be affirmed. 

I. Factual and Procedural History

Defendant A.M. Pappas & Associates, LLC, is a company that manages 

investment funds and specializes in investments in the life sciences sector. Defendant 

Art M. Pappas is the company’s managing partner, and defendant Ford S. Worthy is 

the company’s chief financial officer. Beginning in 2011, defendants managed funds 

that included investments in Chimerix, Inc., a corporation involved in the 

development of anti-viral medical treatments. Plaintiff was the president and CEO 

of Chimerix, Inc. from April 2010 until April 2014, when he left Chimerix. 

On 22 October 2014, plaintiff sent an anonymous email to the North Carolina 

State Treasurer, using an email account that plaintiff had created under the name

“pappasventureswhistleblower@gmail.com.” The email stated the following:

To whom it may concern:

I am writing this because of my concerns about the 

activities of Arthur Pappas at Pappas Ventures. I want to 

bring 3 things to your attention:

1. Potential misuse and misappropriation of funds. I have 

reason to believe that Mr. Pappas has diverted somewhere 

around $2 million of funds over the course of time, via 

expenses and payments to others. Mr. Worthy may know 

of this and be involved. I believe this would require an 

audit of the Pappas Ventures financials, as Mr. Pappas is 

skilled in hiding this misuse.
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2. High employee turnover at Pappas Ventures. This is due 

to the instability and unpredictability of Mr. Pappas. There 

has been a very high turnover of personnel - partners and 

investment professionals, more than other venture funds. 

People leave this fund and do not trust him.

3. Perhaps not relevant, but there have been whispers of 

issues of domestic violence/hitting women. This would 

further damage the viability of the fund. I do not wish to be 

a gossip, but this is relevant to Mr. Pappas’s moral code. 

Since there is no whistleblower hotline, I felt an obligation 

to contact people involved with Pappas Ventures and A.M. 

Pappas. I have now done all that I can to bring these issues 

to light, and my conscience is clear. What those of you 

copied on this email do individually or collectively is up to 

you. 

Plaintiff later exchanged follow-up emails with an employee of the Department 

of State Treasurer and forwarded his email to others whom plaintiff describes as 

“investors in or collaborators with the funds managed by” defendants. 

On 4 June 2015, defendants filed suit against the sender of the anonymous 

emails, whom defendants identified as “John Doe or Jane Doe,” seeking damages for 

libel per se and libel per quod. On 12 October 2015, the law firm of Smith, Anderson, 

Blount, Dorsett, Mitchell & Jernigan, L.L.P. (hereafter “Smith Anderson”) sent a 

letter to plaintiff on the law firm’s letterhead. The letter bore the heading 

“CONFIDENTIAL” and “FOR PURPOSES OF SETTLEMENT ONLY.” (use of all 

capital letters and underlining in original). The letter stated the following: 

Re: A.M. Pappas & Associates, LLC, et al. v. John Doe or 

Jane Doe
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In the Superior Court of Durham County, North County; 

15 CVS 3383

Dear Mr. Moch:

 This law firm represents Pappas Capital, LLC (f/k/a A. 

M. Pappas & Associates, LLC), its affiliates, Arthur Pappas 

and Ford Worthy. We obtained evidence demonstrating 

that you are responsible for the defamatory and malicious 

emails from the previously anonymous email account: 

pappasventureswhistleblower@gmail.com, as described in 

the “Doe” lawsuit that we filed June 4 in Durham County 

Superior Court. A copy of that lawsuit is enclosed. 

 We will amend the “Doe” Complaint and name you as a 

defendant and immediately commence public litigation 

against you unless you agree to the following material 

settlement terms in principle by Friday, October 16, 2015:

[1.] A written retraction and apology;

[2.] Payment of $10 million, which is a figure discounted 

for settlement purposes of the net present value of the 

economic harm done to our clients. At trial, we will seek at 

least $25 million;

[3.] Complete disclosure and sharing of information that 

identifies anyone else involved with you in the defamatory 

emails. Based on the nature and quality of this 

information, we may be willing to compromise the financial 

settlement demand; and

[4.] Our clients will refrain from reporting you to law 

enforcement authorities or regulatory agencies for 

violation of [N.C. Gen. Stat. §] 14-196.3 and all other 

potential criminal violations, including federal violations. 

Also enclosed with this letter is a document subpoena to 

you. That subpoena requires you to produce certain 

materials to us at our offices on October 20, 2015. You may 
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not destroy or alter any evidence identified in the subpoena 

or that is relevant to this matter. You are obligated by law

to preserve all relevant evidence. Failure to comply with 

this obligation is a criminal offense. You are on notice of 

this duty by virtue of receipt of this correspondence. We 

are, however, willing to work with you on the timing, scope, 

and method of production to ensure that the subpoena does 

not impose any undue burden and to protect the 

confidentiality of your personal information.

Also enclosed is a testimony subpoena requiring you to 

appear at our offices on Saturday, October 24, 2015 to give 

your testimony in the lawsuit under oath. 

Separately, we are serving your spouse with a document 

subpoena for any relevant electronic and documentary 

evidence she may possess.

This is a very serious matter.

The defamatory, baseless accusations have caused serious 

damage to our clients and their business partners and they 

will be made whole.

I urge you or your counsel to contact me immediately to 

begin the process of addressing this matter. My office 

number is on the letterhead. My cellphone is [omitted]. 

(emphasis in original). 

On 19 October 2015, the law firm of Nelson Mullins Riley & Scarborough LLP 

(hereafter “Nelson Mullins”) sent a letter to a Smith Anderson attorney, stating that

the Nelson Mullins firm represented plaintiff, and objecting to the subpoenas issued 

by defendants on various grounds, including attorney-client privilege, spousal 

privilege, and an assertion that the subpoenas’ production requests were unduly 
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burdensome. On 6 November 2015, defendants filed a motion to compel plaintiff’s 

production of the documents sought in their subpoenas. On the same day, Smith 

Anderson sent a letter to an attorney with the law firm Spilman Thomas & Battle, 

PLLC.1 The letter was headed “SETTLEMENT CONFIDENTIAL” and “FOR YOUR 

EYES AND YOUR CLIENTS’ EYES ONLY” and stated that: 

Re: A.M. Pappas & Associates, LLC, et al. v. John Doe or 

Jane Doe 

Durham County - 15 CVS 3383

Dear Jeff:

Thank you for our conversation Wednesday 

afternoon. Our clients are very frustrated at the pace and 

the missed expectations and were prepared to take decisive 

action prior to your last minute phone call. But you 

provided meaningful information which has altered our 

trajectory in a way that preserves for a very short period 

the possibility of keeping the horse in the barn. In 

particular, you confirmed that Mr. Moch is the malicious 

emailer and that he will acknowledge that.

From here, there are two possible paths forward. 

The first is the settlement path which to be successful must 

be completed by November 30th. We are willing to meet 

November 17 and the incentive to Mr. Moch and Ms. 

Stolzman is that our clients will negotiate a significant 

reduced cap on damages -- including potentially a minimal 

settlement amount -- if you will provide the information 

that I mentioned to you on the phone. The document that I 

previously mentioned when we first spoke is Exhibit C to 

the complaint filed in the business court. You will want to 

look at paragraph 11. You and I can arrive at a method to 

ensure that your clients will receive the value for the 

 

1 The contents of the letter indicate that on 6 November 2015 plaintiff was represented by this 

law firm. 
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information if it is disclosed and that they will not be in the 

position of giving information without receiving any 

promised value, nor us giving value for information that is 

not valuable.

That is the basic path to settlement. What follows is 

the immediate litigation alternative. 

We have noticed your motion to quash the Google 

subpoena before Judge Hudson in Durham Superior Court 

on Monday, November 16. That notice is enclosed. That 

notice makes no reference to your client. Upon receiving 

your motion, we reviewed the Tolling Agreement to see if 

your action constituted a breach and concluded as you must 

have that the Tolling Agreement has no effect whatsoever 

on the Doe litigation.

Accordingly, we also enclose with this letter our 

motions to compel on the subpoenas to Mr. Moch and Ms. 

Stolzman, which do reference your clients. We have not 

filed these with the Court, but if we do not receive a 

satisfactory response from your clients by close of business 

Wednesday of next week, we will file them with the Court 

and bring these on for hearing also. 

At the hearing on the 16th, we will definitively 

identify Mr. Moch as the malicious emailer using cyberfingerprints that definitively place him at the FedEx 

Kinko’s at 114 West [Franklin Street,] Chapel Hill[,] on 

January 23 and accessing the Gmail account from that 

location, as well as the bevy of AT&T geolocation data 

placing Mr. Moch’s cellphone in The Siena Hotel and the 

Durham South Regional Library when he conducted his 

malicious email activities from those locations.

We are pursuing every option and will exhaust them 

all. I also include the subpoena for video surveillance of the 

Public Storage self-storage facility at 515 S. Greensboro 

Road visited by Ms. Stolzman the day after she and her 

husband received their subpoenas, and the day before one 
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of their vehicles went to Eubanks Road, the location of the 

Chapel Hill dump. I previously raised a concern about 

document preservation with your clients’ prior counsel. If 

there is an issue, we will pursue every remedy.

We will also report Mr. Moch to the appropriate law 

enforcement authorities for cyberstalking. As we’ve 

discussed, Mr. Moch’s email campaign, which was intended 

to harass and embarrass Mr. Pappas and Mr. Worthy, 

constitutes criminal cyberstalking in violation of N.C. Gen. 

Stat. 14-196.3. Mr. Pappas and Mr. Worthy have thus far 

refrained from reporting Mr. Moch to law enforcement. 

And, consistent with 2008 Formal Ethics Opinion 15, Mr. 

Pappas and Mr. Worthy are prepared as part of a 

settlement permanently to refrain from reporting Mr. 

Moch to law enforcement. If, however, we are unable to 

agree on the next steps in the settlement process as set 

forth in this letter, Mr. Moch’s conduct will immediately be 

reported to the proper authorities.

In addition to all of the foregoing, by at latest 

November 30 we will have no choice but to file a complaint 

publicly identifying Mr. Moch as the anonymous emailer 

and describing in detail his malicious intent and his failed 

attempts to hide his tracks. At that point, we will bring this 

matter to the attention of Chimerix for indemnity to which 

Mr. Pappas is entitled, and Mr. Moch is contractually 

obligated to respond to Chimerix’ requests for information. 

So we will be able to get by right through the Court or 

potentially Chimerix all information for which we

presently are willing to give your clients significant value 

in order to avoid full litigation.

We will stand down on all these immediate litigation 

issues for the Tolling Period and withdraw our notice of 

hearing for November 16 on all issues if we can follow the 

roadmap that we initially discussed, i.e., (i) you provide 

fulsome document production as we have discussed before 

our November 17 meeting, which includes third party 

involvement (indicating and fully disclosing whether you 
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have the Linsley information we are requesting, but not 

producing the information yet); (ii) we simultaneously give 

[you] our detailed damages disclosure; (iii) we meet

November 17 and discuss a method to ensure value is 

received for third-party information to be provided by Mr. 

Moch by both Mr. Moch and us, and we address the 

required acknowledgement.

All of this would be settlement confidential 

disclosures and discussions. 

On 18 November 2015, defendants filed an amended complaint naming

plaintiff as the defendant instead of “John Doe or Jane Doe.” On the same date, 

plaintiff filed suit against defendants, asserting claims for abuse of process and unfair 

or deceptive trade practices. On 30 November 2015, defendants filed a motion to 

dismiss plaintiff’s complaint pursuant to N.C. Gen. Stat. § 1A-1 Rule 12(b)(6).

Plaintiff filed an amended complaint on 7 January 2016 and defendants filed an 

amended motion for dismissal on 8 January 2016. Following a hearing conducted on 

13 January 2016, the trial court entered an order on 25 February 2016, granting 

defendants’ motion and dismissing plaintiff’s claims with prejudice. Plaintiff noted a 

timely appeal to this Court. 

II. Standard of Review

N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2015) allows a party to move for dismissal 

of a claim or claims based on the complaint’s “[f]ailure to state a claim upon which 

relief can be granted[.]” “The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests 

the legal sufficiency of the complaint. In ruling on the motion the allegations of the 
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complaint must be viewed as admitted, and on that basis the court must determine 

as a matter of law whether the allegations state a claim for which relief may be 

granted.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) 

(citations omitted). “[T]he well-pleaded material allegations of the complaint are 

taken as admitted; but conclusions of law or unwarranted deductions of fact are not 

admitted.” Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970) (internal 

quotation omitted). “When the complaint on its face reveals that no law supports the 

claim, reveals an absence of facts sufficient to make a valid claim, or discloses facts 

that necessarily defeat the claim, dismissal is proper.” Arnesen v. Rivers Edge Golf 

Club & Plantation, Inc., 368 N.C. 440, 448, 781 S.E.2d 1, 7-8 (2015) (citing Wood v. 

Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (other citation omitted)). 

“This Court must conduct a de novo review of the pleadings to determine their legal 

sufficiency and to determine whether the trial court’s ruling on the motion to dismiss 

was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 

4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).

“When documents are attached to and incorporated into a complaint, they 

become part of the complaint and may be considered in connection with a Rule 12(b) 

(6) motion without converting it into a motion for summary judgment.” Schlieper v. 

Johnson, 195 N.C. App. 257, 261, 672 S.E.2d 548, 551 (2009). Moreover: 

Although it is true that the allegations of [the plaintiff’s]

complaint are liberally construed and generally treated as 
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true, the trial court can reject allegations that are 

contradicted by the documents attached, specifically 

referred to, or incorporated by reference in the complaint. 

Furthermore, the trial court is “not required . . . to accept 

as true allegations that are merely conclusory, 

unwarranted deductions of fact, or unreasonable 

inferences.”

Laster v. Francis, 199 N.C. App. 572, 577, 681 S.E.2d 858, 862 (2009) (citing Schlieper

and quoting Strickland v. Hedrick, 194 N.C. App. 1, 20, 669 S.E.2d 61, 73 (2008)). 

“When reviewing pleadings with documentary attachments on a Rule 12(b)(6) motion, 

the actual content of the documents controls, not the allegations contained in the 

pleadings[.]” Schlieper at 265, 672 S.E.2d at 552 (citing Oberlin Capital, L.P. v. 

Slavin, 147 N.C. App. 52, 60, 554 S.E.2d 840, 847 (2001)).

III. Plaintiff’s UDTPA Claim

N.C. Gen. Stat. § 75-1.1 (2015) provides in relevant part that:

(a) Unfair methods of competition in or affecting commerce, 

and unfair or deceptive acts or practices in or affecting 

commerce, are declared unlawful.

(b) For purposes of this section, “commerce” includes all 

business activities, however denominated, but does not 

include professional services rendered by a member of a 

learned profession. 

“In order to establish a prima facie claim for unfair trade practices, a plaintiff 

must show: (1) [the] defendant committed an unfair or deceptive act or practice, (2) 

the action in question was in or affecting commerce, and (3) the act proximately 

caused injury to the plaintiff.” Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 
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711 (2001) (citation omitted). In the present case, we conclude that plaintiff’s 

complaint discloses on its face that the acts upon which plaintiff rests his claim were 

not “in or affecting commerce.” 

As noted above, N.C. Gen. Stat. § 75-1.1(b) provides that, for purposes of the 

statute, “commerce” “does not include professional services rendered by a member of 

a learned profession.” “[T]he practice of law has traditionally been considered a 

learned profession, as indeed it is. Furthermore, this Court has . . . applied the 

exemption in the context of a law firm. Thus, we conclude that . . . a law firm and its 

attorneys . . . are members of a learned profession.” Reid v. Ayers, 138 N.C. App. 261, 

266, 531 S.E.2d 231, 235 (2000) (citing Sharp v. Gailor, 132 N.C. App. 213, 217, 510 

S.E.2d 702, 704 (1999). “Although no bright line exists, we think that the exemption 

applies anytime an attorney or law firm is acting within the scope of the traditional 

attorney-client role.” Reid, 138 N.C. App. at 267, 531 S.E.2d at 236. 

We have carefully examined the allegations of plaintiff’s complaint and have 

accepted as true the factual allegations in the complaint. We have, however,

disregarded conclusory allegations that state legal conclusions or unwarranted 

inferences of fact, such as plaintiff’s assertion that defendants acted “in retaliation 

for [plaintiff’s] exercising his First Amendment rights[.]” We have also disregarded 

allegations with no obvious relevance to the issue of whether plaintiff’s complaint 

states a claim for unfair or deceptive trade practices. For example, the complaint 
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contains a number of allegations that appear to be included in order to establish 

matters such as (1) the basis for plaintiff’s alleged concerns about defendants’ 

business practices; (2) the fact that the policies of the North Carolina State Treasurer 

support transparency and accountability; (3) the sufficiency of an audit conducted by 

defendants in response to plaintiff’s anonymous emails; (4) plaintiff’s speculations as 

to the amount of damages that defendants incurred as a result of the emails; and (5) 

whether defendants’ counsel acted in violation of the Code of Professional 

Responsibility. Allegations addressed to these issues or to similarly peripheral 

matters do not contribute to the determination of whether the material factual 

allegations of plaintiff’s complaint state a claim for relief. 

Moreover, we have disregarded allegations that are directly contradicted by 

the documents attached to or referenced in plaintiff’s complaint. For example, 

plaintiff’s complaint alleges that the letters from defendants’ counsel regarding 

settlement negotiations “falsely threaten[ed]” plaintiff that failure to obey their 

subpoenas would “be a criminal offense.” In fact, the letters do not state that “failure 

to obey” a subpoena is a criminal offense, but only that the destruction of evidence

that had been subpoenaed is a violation of criminal law. Having conducted a detailed 

review of plaintiff’s complaint, accepting its well-pleaded factual allegations as true 

while disregarding other allegations as discussed above, we conclude that plaintiff’s 
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claim for unfair or deceptive acts rests entirely upon the contents of the two letters 

sent from defendants’ counsel to plaintiff or plaintiff’s counsel. 

This Court has held that a party may not bring a claim for unfair or deceptive 

practices based upon the actions of the defendant’s counsel. In Davis Lake 

Community Ass’n v. Feldmann, 138 N.C. App. 292, 530 S.E.2d 865 (2000), the 

plaintiff, the homeowners’ association of a planned development community, sued 

residents of the community to recover delinquent homeowners’ assessments. The 

homeowners filed a counterclaim against the plaintiff for unfair debt collection and 

later sought to amend their counterclaim to join plaintiff’s counsel as a required 

party. The Davis Lake opinion reviewed Reid v. Ayers, in which this Court held that 

in order to state a claim for unfair debt collection, a complaint must not only allege 

facts stating a violation of the specific regulations applicable to debt collection but 

must also satisfy “the more generalized requirements of all unfair or deceptive trade 

practice claims,” which exclude from the definition of “commerce” the “professional 

services rendered by a member of a learned profession.” Davis Lake, 138 N.C. App. at 

296, 530 S.E.2d at 868-69. The Davis Lake Court held that the exception for learned 

professions stated in N.C. Gen. Stat. § 75-1.1 precluded the defendants from joining 

plaintiff’s counsel in their counterclaim. We then held that: 

We again emphasize that defendants only have a valid 

claim against plaintiff, not its counsel. Thus, in proceeding 

with their claim, defendants must focus on those alleged 

unfair debt collection practices employed exclusively by 
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plaintiff. Any acts engaged in by plaintiff’s counsel, even if 

cloaked in terms of a principal-agent relationship, fall 

within the learned profession exemption and thus outside 

the purview of the NCDCA.

Davis Lake, 138 N.C. App. at 297, 530 S.E.2d at 869 (emphasis added). We conclude 

that Davis Lake is controlling on the issue of whether plaintiff can bring a claim 

against defendants based upon letters sent by defendants’ counsel, and that plaintiff 

may not do so. 

In arguing for a different result, plaintiff does not cite controlling authority to 

the contrary. Plaintiff makes the conclusory assertion that the holding of Davis Lake

“was not unbridled or without limits,” but fails to articulate how the present case 

exceeds the “limits” of that case. Plaintiff also identifies factual differences between 

the alleged actions of the counsel in Davis Lake and those of counsel in the present 

case, without proffering a basis upon which these factual differences would change 

our legal analysis. In addition, plaintiff cites Huff v. Gallagher, 521 B.R. 107 (Bankr. 

E.D.N.C. 2014), in support of his position. “We note initially that a decision of the 

Bankruptcy Court is not binding on this Court.” In re Foreclosure of Bass, 217 N.C. 

App. 244, 254, 720 S.E.2d 18, 26 (2011), rev’d on other grounds, 366 N.C. 464, 738 

S.E.2d 173 (2013). Furthermore, the opinion in Huff fails to acknowledge our holding 

in Davis Lake, or to distinguish it. As a result, Huff is neither controlling nor 

persuasive authority.
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Moreover, plaintiff fails to identify any specific acts alleged in his complaint 

that (1) were undertaken by defendants alone and not by defendants’ counsel, and (2) 

could support a claim for unfair or deceptive practices. In his reply brief, plaintiff 

states that his complaint “asserted various acts undertaken directly by Defendants 

that underlie his claims,” citing paragraphs Nos. 1, 26, 38, 41, 45, 46, 59, 72, 81, 82, 

and 86. We have examined these allegations and conclude that they consist of general 

background information, the discussion of irrelevant matters such as plaintiff’s

speculation on the extent of the damages suffered by defendants, conclusory 

assertions that are not supported by factual allegations, and the merits of the terms 

of settlement that were offered by defendants’ counsel in their letters. We hold that 

plaintiff’s complaint failed to allege facts that, if true, would establish that the acts 

complained of were “in commerce” as the term is defined in N.C. Gen. Stat. § 75-

1.1(b), and that the trial court did not err by dismissing this claim. As a result, we 

need not address the parties’ arguments regarding whether plaintiff’s complaint 

stated facts supporting the other elements of a claim for unfair or deceptive trade 

practices. 

IV. Plaintiff’s Claim for Abuse of Process

“Abuse of process is the misapplication of civil or criminal process to 

accomplish some purpose not warranted or commanded by the process.” Pinewood 

Homes, Inc. v. Harris, 184 N.C. App. 597, 602, 646 S.E.2d 826, 831 (2007) (internal 
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quotation omitted). “Two elements must be proved to find abuse of process: (1) that 

the defendant had an ulterior motive to achieve a collateral purpose not within the 

normal scope of the process used, and (2) that the defendant committed some act that 

is a ‘malicious misuse or misapplication of that process after issuance to accomplish 

some purpose not warranted or commanded by the writ.’ ” Id. (quoting Stanback, 297 

N.C. at 200, 254 S.E.2d at 624) (emphasis in original). However, “[t]here is no abuse 

of process where it is confined to its regular and legitimate function in relation to the 

cause of action stated in the complaint.” Stanback at 201, 254 S.E.2d at 624. 

On appeal, plaintiff makes a number of arguments to support his contention 

that the letters sent by defendants’ counsel and defendants’ issuance of subpoenas 

constitute “abuse of process in violation of North Carolina law.” Plaintiff asserts that 

defendants should not have issued subpoenas in connection with their “John Doe” 

lawsuit, given that defendants had information indicating that plaintiff was the 

person who had sent the emails; that the subpoenas were issued with the “ulterior 

motive” of “forc[ing plaintiff] to the negotiating table,” or, alternatively, were issued 

with the “ulterior purpose” of pressuring plaintiff to provide testimony for defendants 

in another civil case. However, at the hearing on this matter, plaintiff’s counsel made 

the following argument regarding plaintiff’s claim for abuse of process: 

PLAINTIFF’S COUNSEL: To touch on the abuse of process 

very quickly: The defendants want to characterize it as a 

mere issuance of a subpoena. That’s not the im-- that’s not 

the abuse of the process. It’s the totality of the 
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circumstances and the idea that you have to appear within 

-- appear on a Saturday for a deposition, produce some 55 

subsets of documents and, oh, yeah, by the way, this is all 

coming under the context of a letter which will demand 

money again as we have alleged that you’re not entitled to. 

That’s the abuse of the process. 

“Our appellate courts have ‘long held that where a theory argued on appeal was not 

raised before the trial court, the law does not permit parties to swap horses between 

courts in order to get a better mount [on appeal].’ ” State v. Portillo, __ N.C. App. __, 

__, 787 S.E.2d 822, 832 (2016) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 

3, 5 (1996) (internal quotation omitted)). Before the trial court, plaintiff argued that 

the “totality of the circumstances” of the issuance of subpoenas constituted an abuse 

of process, based on the facts that the subpoenas required the taking of a deposition 

on a Saturday, the subpoenas requested the production of numerous documents, and 

the subpoenas were attached to a letter that conditioned an offer to settle upon 

plaintiff’s payment of money to defendants. Having relied upon this argument at 

trial, plaintiff may not raise new arguments on appeal, to which defendants had no 

chance to respond at trial and on which the trial court had no opportunity to rule. On 

appeal, plaintiff fails to articulate how the facts noted above would support a claim 

for abuse of process, and we conclude that plaintiff is not entitled to relief on the basis 

of this argument. 

For the reasons discussed above, we conclude that the trial court did not err by 

dismissing plaintiff’s complaint, and that its order should be
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AFFIRMED.

Judges CALABRIA and INMAN concur.