## Facts

- Thurman Ellis asserted that Elmer Wellons owed him money and had sold crops subject to an agricultural lien without paying the lien.
- Ellis initiated a criminal complaint; a warrant issued charging Wellons with selling encumbered crops, and Wellons was arrested and prosecuted.
- After process issued, Ellis allegedly told Wellons on multiple occasions that the criminal charge would be dropped if Wellons paid the claimed debt.
- Wellons denied owing Ellis and sued Ellis for (1) malicious prosecution and (2) abuse of process, alleging the criminal case was used to pressure payment of a private obligation.

## Issues

1. Whether a plaintiff may recover for abuse of process when the factfinder determines there was probable cause for the underlying criminal prosecution (defeating malicious prosecution).
2. Whether the trial court erred by failing to segregate or limit evidence admitted on the malicious-prosecution claim from the jury’s consideration of the abuse-of-process claim, and by allegedly misstating or conflating the elements in its instructions.

## Decision

- The court affirmed judgment for Wellons on the abuse-of-process claim.
- A finding of probable cause (defeating malicious prosecution) does not bar an abuse-of-process claim because the torts address different wrongs.
- The jury’s verdicts—defense verdict on malicious prosecution and plaintiff’s verdict on abuse of process—were legally consistent.
- Considering the jury charge as a whole, the instructions adequately distinguished the claims and did not constitute prejudicial error.

## Legal Principles

- Abuse of process requires: (1) an ulterior motive and (2) an act in the use of process not proper in the regular prosecution of the proceeding.
- Abuse of process focuses on misuse of process after it issues; it does not require lack of probable cause for issuance.
- Malicious prosecution focuses on wrongful institution of proceedings and generally requires want of probable cause (and malice); it is analytically distinct from abuse of process.
- Using criminal process as leverage to collect a private debt may satisfy abuse of process when accompanied by an improper act in using the process (beyond mere bad motive).
- Jury instructions are reviewed in context; reversal requires a showing that the charge, read as a whole, failed to present the issues fairly or likely misled the jury.

## Conclusion

The court held that probable cause to initiate a criminal prosecution defeats malicious prosecution but does not preclude liability for abuse of process when, after issuance, the process is used for an improper collateral purpose such as coercing payment of a private debt, and it found no prejudicial instructional error warranting a new trial.


Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (N.C. 1944)