An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1216

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

JUSTICE, HUGH,

Plaintiff

v.

McDowell County

No. 11-CVS-1014

MAYES, LINDA,

Defendant

Appeal by plaintiff from judgment entered 28 March 2013 by 

Judge Gary M. Gavenus in McDowell County Superior Court. Heard 

in the Court of Appeals 4 March 2014.

Hugh Justice, pro se.

No appellee brief filed.

ERVIN, Judge.

Plaintiff Hugh Justice appeals from a judgment entered

based upon a jury verdict awarding Plaintiff $3,314.00 in

compensatory damages. On appeal, Plaintiff argues that the 

trial court erred by requiring the jury to establish a damage 

award based solely upon his claim for malicious prosecution

instead of allowing the jury to award damages based upon claims 

for other causes of action, such as defamation, which he 
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contends were established by Defendant’s failure to respond to 

certain requests for admission. After careful consideration of 

Plaintiff’s challenge to the trial court’s judgment in light of 

the record and the applicable law, we conclude that the trial 

court’s judgment should be affirmed.

I. Factual Background

Plaintiff and Defendant Linda Susan Mayes, a/k/a Linda 

Hendrix, a/k/a Linda Mayes McPeters, reside in McDowell County 

and live adjacent to each other. On approximately 2 December 

2010, Defendant asserted that Plaintiff had grabbed her by the 

arm and thrown her in a ditch. Subsequently, Defendant asserted

that Plaintiff had threatened to “cut her throat and burn her 

house down with her in it.” Although Defendant procured the 

issuance of warrants charging Plaintiff with simple assault and 

communicating threats,1 these charges were dismissed by the trial 

court when Defendant was unable to prove her accusations.

On 24 November 2011, Plaintiff filed a complaint alleging

that he was entitled to recover damages from Defendant for 

 

1Although the record before us is not entirely clear with 

respect to this issue, we assume that the communicating threats 

charge upon which Plaintiff’s claim was based stemmed from 

Defendant’s statement that Plaintiff had threatened to cut her 

throat and burn down her house.
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malicious prosecution,2 with his damage claim including a request 

for an award of $150,000 in compensatory damages and an award of

punitive damages in an amount to be determined by the jury. In 

his complaint, Plaintiff alleged that the assault and 

communicating threats warrants that Defendant had sworn out

against him lacked any legitimate factual basis and had been

obtained with the intent to harm Plaintiff’s reputation.

On 14 December 2011, Defendant filed an answer in which she 

denied the material allegations set out in Plaintiff’s 

complaint. On 6 August 2012, Plaintiff served an extensive

request for admissions on Defendant. In view of the fact that 

Defendant failed to respond to Plaintiff’s request for 

admissions, the factual assertions set out in that discovery

request were deemed to have been judicially admitted.

On 26 October 2012, Plaintiff moved for the entry of 

summary judgment in his favor, with this request being based on 

Defendant’s failure to respond to his request for admissions. 

According to the assertions advanced in Plaintiff’s motion, 

Defendant’s admissions established the existence of the showing 

required to support a recovery for defamation, private nuisance, 

 

2In spite of the fact that Plaintiff made reference to a 

defamation action in the caption of his complaint, the actual 

allegations set out in that pleading, which was filed pro se, 

clearly reflect an attempt to allege a claim for malicious 

prosecution.
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and intentional infliction of emotional distress. Defendant

neither responded to Plaintiff’s summary judgment motion nor 

appeared at the 6 November 2012 hearing held for the purpose of 

considering Plaintiff’s motion. On 28 November 2012, Judge 

Laura J. Bridges entered an order granting summary judgment in 

Defendant’s favor.

As a result of the need for a proper determination of the 

amount of damages that Plaintiff was entitled to recover from 

Defendant, this case came on for hearing before the trial court 

and a jury at the 21 February 2013 civil session of the McDowell 

County Superior Court. Once again, Defendant failed to appear. 

At trial, Plaintiff unsuccessfully argued that he was entitled 

to recover damages on the basis of a number of substantive 

claims, such as defamation, in addition to malicious 

prosecution. After the presentation of Plaintiff’s evidence and 

the delivery of the trial court’s instructions, the jury 

returned a verdict awarding Plaintiff $3,314.00 in compensatory 

damages and declining to award Plaintiff any punitive damages.3

After the return and acceptance of the jury’s verdict, 

Plaintiff filed a motion for new trial pursuant to N.C. Gen. 

Stat. § 1A-1, Rule 59. Following a hearing concerning the 

 

3At trial, Plaintiff presented evidence that he had incurred 

$3,314.00 in costs as a result of the fact that Defendant 

prosecuted him for assault and communicating threats.
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merits of Plaintiff’s motion held at the 26 March 2013 civil 

session of McDowell County Superior Court, the trial court

entered an order denying Plaintiff’s motion for new trial on 26 

March 2013 and a judgment ordering that Plaintiff have and 

recover $3,314.00 from Defendant on 28 March 2013. Plaintiff 

noted an appeal to this Court from the trial court’s judgment.

II. Substantive Legal Analysis

In the sole argument advanced in his brief, Plaintiff 

argues that the trial court erred by refusing to allow the jury 

to award him damages on the basis of claims other than malicious 

prosecution, such as defamation.4 In support of that contention, 

Plaintiff argues that Defendant’s failure to respond to his 

request for admissions established the validity of claims other 

than malicious prosecution and that the trial court should have 

allowed the jury to base its damage award on these additional 

claims rather than limiting his damage award to one which 

compensated him for having been maliciously prosecuted for 

assault and communicating threats. Plaintiff’s argument lacks 

merit.

A. Standard of Review

 

4In his brief, Plaintiff asserts that the admissions to 

which Defendant failed to respond established that he had 

twenty-six valid claims against Defendant in addition to 

malicious prosecution. However, the only specific additional 

claim that Plaintiff discusses in his brief is one for 

defamation.
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Although the form and number of the issues submitted to the 

jury is, as a general proposition, within the sound discretion 

of the trial court, Wilson v. Pearce, 105 N.C. App. 107, 112, 

412 S.E.2d 148, 150, disc. review denied, 331 N.C. 291, 417 

S.E.2d 72 (1992), the trial court is required “to instruct the

jury upon the law with respect to every substantial feature of 

the case” that arises upon the evidence. Mosley & Mosley 

Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361 S.E.2d 

608, 612 (1987), cert. dismissed, 322 N.C. 607, 370 S.E.2d 416 

(1988). As a result, “[i]f a party contends that certain acts 

or omissions constitute a claim for relief or a defense against 

another, the trial court must submit the issues with appropriate 

instructions if there is evidence which, when considered in the 

light most favorable to the proponent, will support a reasonable 

inference of each essential element of the claim or defense 

asserted.” Cockrell v. Cromartie Transp. Co., 295 N.C. 444, 

449, 245 S.E.2d 497, 500 (1978) (citations omitted). “A 

specific jury instruction should be given when ‘(1) the 

requested instruction was a correct statement of law and (2) was 

supported by the evidence, and that (3) the instruction given, 

considered in its entirety, failed to encompass the substance of 

the law requested[,] and (4) such failure likely misled the 

jury.’” Outlaw v. Johnson, 190 N.C. App. 233, 243, 660 S.E.2d 
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550, 559 (2008) (quoting Liborio v. King, 150 N.C. App. 531, 

534, 564 S.E.2d 272, 274, disc. review denied, 356 N.C. 304, 570 

S.E.2d 726 (2002)). On the other hand, “when the issues 

submitted cover the factual matters disputed under the pleadings 

and enable the parties to fairly present their contentions in 

regard to them it is not error to refuse to submit other 

issues.” Nolen Concrete Supply, Inc. v. Buchanan, 78 N.C. App. 

409, 411, 337 S.E.2d 129, 130 (1985). We review challenges to 

the legal correctness of a trial court’s jury instructions using 

a de novo standard of review. State v. Osorio, 196 N.C. App. 

458, 466, 675 S.E.2d 144, 149 (2009).

B. Validity of Trial Court’s Instructions

1. Relevant Legal Principles

“The most fundamental tenet of modern pleading rules is 

that the pleadings should give ‘sufficient notice of the claim 

asserted to enable the adverse party to answer and prepare for 

trial . . . and to show the type of case brought.’” Holloway v. 

Wachovia Bank & Trust Co., N.A., 339 N.C. 338, 347, 452 S.E.2d 

233, 238 (1994) (quoting Sutton v. Duke, 277 N.C. 94, 102, 176 

S.E.2d 161, 165 (1970) (internal quotation omitted)). “‘A 

plaintiff must make out his case secundum allegata,’” so that 

“‘[t]here can be no recovery except on [a] case made by [the] 

pleadings,’” with “‘[p]roof without allegation [being] no better 
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than allegation without proof.’” Moody v. Kersey, 270 N.C. 614, 

618, 155 S.E.2d 215, 218 (1967) (quoting Andrews v. Bruton, 242 

N.C. 93, 95, 86 S.E.2d 786, 788 (1955)). As a result, in most 

instances, the trial court’s judgments must be based upon issues 

raised in the party’s pleadings and supported by sufficient

record evidence.

In recognition of the fact that he failed to allege any 

substantive claim in his complaint other than malicious 

prosecution, Plaintiff argues that the other claims that he 

contends that the trial court should have allowed the jury to 

consider were properly before the court and jury under a 

“litigation by consent” theory. According to that theory, “when 

a non-objecting party allows evidence to be presented at trial 

outside the scope of the pleadings, the pleadings are deemed 

amended to conform to the evidence, and no formal amendment is 

required.” McDevitt v. Stacy, 148 N.C. App. 448, 455, 559 

S.E.2d 201, 208 (2002) (citing Roberts v. Memorial Park, 281 

N.C. 48, 59, 187 S.E.2d 721, 727 (1972)). As a result, “‘[w]hen 

issues not raised by the pleadings are tried by the express or 

implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings[,]’” Taylor 

v. Gillespie, 66 N.C. App. 302, 304, 311 S.E.2d 362, 364

(quoting N.C. Gen. Stat. § 1A-1, Rule 15(b)), disc. review 
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denied, 310 N.C. 748, 315 S.E.2d 710 (1984), since N.C. Gen.

Stat. § 1A-1, Rule 15(b) “allows issues to be raised by liberal 

amendments to pleadings, and, in some cases, by the evidence, 

the effect of the rule being to allow amendment by implied 

consent to change the legal theory of the cause of action so 

long as the opposing party has not been prejudiced in presenting 

his case, i.e., where he had a fair opportunity to defend his 

case.” Id. at 305, 311 S.E.2d at 364. On the other hand, where 

“issue[s] purportedly raised by the evidence [are] not tried by 

the consent of the parties, it [is] not error for the court to 

refuse to amend the pleadings.” Paris v. Michael Kreitz, Jr., 

P.A., 75 N.C. App. 365, 376, 331 S.E.2d 234, 242, disc. review 

denied, 315 N.C. 185, 337 S.E.2d 858 (1985).

2. Lack of Litigation by Consent in this Case

The essential argument advanced in Plaintiff’s brief is 

that Defendant’s admissions were sufficient to establish several 

additional causes of action not set forth in his complaint and

that, given Defendant’s failure to respond to these requests for 

admission or to lodge an objection to the consideration of these 

additional claims at any other time, Defendant impliedly 

consented to the litigation of these additional claims. Based 

upon this logic, Plaintiff argues that the trial court was 

required to allow the jury to award damages arising from these 
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additional claims in addition to the damages arising from his 

malicious prosecution claims. Plaintiff’s argument stretches 

the concept of an implied amendment to the pleadings past the 

breaking point.

As we have already noted, the only claim asserted in 

Plaintiff’s complaint was one for malicious prosecution. After 

having asserted nothing more than a malicious prosecution claim

in his complaint, Plaintiff sought and obtained the entry of

summary judgment based upon an evidentiary showing consisting of 

Defendant’s failure to respond to his requests for admission, 

all of which were relevant to aspects of his malicious 

prosecution claim. Although Defendant did assert in his summary 

judgment motion that he had established the validity of other 

claims for relief, he did not seek to amend his complaint at 

that time to assert any of the other claims that he mentioned in 

that filing. Instead, Plaintiff did not explicitly attempt to 

assert these additional claims until after summary judgment had 

been granted in his favor, the case had been called for trial on 

the sole issue of the amount of damages that he was entitled to 

receive based upon his malicious prosecution claim, and 

Defendant failed to appear. Under this set of circumstances, we 

are unable to say that the issue of whether Plaintiff was 

entitled to recover damages from Defendant based upon claims 
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other than malicious prosecution was ever really tried by 

consent, an event that generally occurs when the parties both 

participate in the litigation of the issue in question. Simply 

put, having asserted nothing more than a claim for malicious 

prosecution in his original complaint and having failed to put 

Defendant on notice of his intentions in advance of trial by 

seeking leave to amend his complaint to assert the additional 

claims, we are unable to accept Plaintiff’s contention that his 

attempt to substantially expand the scope of this litigation to 

include multiple additional claims that he had never attempted

to assert in his pleadings and that Defendant had never agreed, 

explicitly or implicitly, to have heard, amounted to nothing 

more than the trial of additional issues by consent as 

authorized by N.C. Gen. Stat. § 1A-1, Rule 15(b). As this Court 

has previously noted, “‘[d]espite the broad remedial purposes of 

this provision, however, [N.C. Gen. Stat. § 1A-1,] Rule 15(b) 

does not permit judgment by ambush.’” Paris, 75 N.C. App. at 

375, 331 S.E.2d at 242 (quoting Eudy v. Eudy, 288 N.C. 71, 76, 

215 S.E.2d 782, 786 (1975), partially overruled on other grounds 

by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982)). As a 

result, given the manner in which Plaintiff attempted to assert 

his right to recover damages on the basis of additional claims 

never asserted in his pleadings, the absence of any legitimate 
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indication that these additional claims were actually litigated 

by consent, and the obvious prejudice to Defendant that would 

result from acceptance of Plaintiff’s argument, we conclude that 

the trial court did not err by failing to instruct the jury that 

it was entitled to award damages to Plaintiff on the basis of 

the additional theories upon which Plaintiff now seeks to rely.

III. Conclusion

Thus, for the reasons set forth above, we conclude that 

Plaintiff’s challenge to the trial court’s judgment lacks merit. 

As a result, the trial court’s judgment should be, and hereby 

is, affirmed.

AFFIRMED.

Judges McGEE and STEELMAN concur.

Report per Rule 30(e).