The opinion
Judge Walker
concurring in part and dissenting in part.
I agree that some of the trial court’s questions and remarks made during the defendant’s evidence showed some impatience on the part of the court. However, I agree with the majority that these comments were not sufficiently prejudicial to warrant a new trial. I respectfully dissent from the majority’s conclusion that the trial court did not err in allowing plaintiff’s motion to amend her pleadings to conform to the evidence as the evidence in this case does not support a claim for punitive damages.
In her complaint, plaintiff alleged a cause of action for breach of contract, unfair and deceptive trade practices, and intentional infliction of emotional distress. At the close of all the evidence, the trial court refused plaintiff’s request to submit the issues of unfair and deceptive trade practices and intentional infliction of emotional distress to the jury. However, over defendant’s objection, the trial court allowed plaintiff’s motion to amend her complaint to conform to the evidence and request punitive damages.
*360 The majority states that the issue of whether the trial court abused its discretion in allowing the plaintiff to amend her complaint to request punitive damages is not properly before this Court since the defendant did not further object after the trial court instructed the jury. N.C.R. App. P. 10(b)(1) provides as follows:
General. In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection or motion. . . .
The record is clear that defendant objected to plaintiffs motion to amend her complaint to assert a claim for punitive damages. No further objection by the defendant was required in order to preserve this issue for appeal. In support of its position, the majority points to State v. Hayes, 350 N.C. 79 , 511 S.E.2d 302 (1999) in which our Supreme Court held that a motion in limine will not be sufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to object to the evidence when it is offered at trial. In that case, the Court reasoned that a motion in limine is “preliminary in nature and subject to change at trial, depending on the evidence offered. . . .” Id. at 80 , 511 S.E.2d at 303 . In contrast, the trial court may allow the pleadings to be amended to conform to the evidence. N.C. Gen. Stat. § 1A-1, Rule 15(b) (1990). The trial court’s ruling on a motion to amend will only be reversed on a showing of abuse of discretion. Tyson v. Ciba-Geigy Corp., 82 N.C. App. 626, 629 , 347 S.E.2d 473, 476 (1986). Thus, since all the evidence has been presented, a motion to amend at this stage is not preliminary in nature; therefore, defendant was not required to object a second time in order to preserve this issue for review on appeal.
Plaintiff’s evidence tended to show that in 1991 she and her husband were arrested in South Carolina on North Carolina warrants. Defendant, a bail bondsman, posted the required bond to secure plaintiffs release and she paid the premium. Subsequently, defendant posted a bond for plaintiff’s husband after receiving the appropriate premium on a credit card. Later, the charge on the credit card was denied. Defendant offered evidence that plaintiff and her husband concealed themselves from defendant by failing to keep him accurately apprised of their location and by being unable to be reached by telephone for the period from the time of their release in June 1991 *361 until defendant learned they were to appear in court on 12 August 1991. At that time, the defendant surrendered the plaintiff and her husband to the custody of law enforcement.
It is well-settled that punitive damages are generally not allowed for a breach of contract with the exception of breach of contract to marry. Newton v. Insurance Co., 291 N.C. 105, 111 , 229 S.E.2d 297, 301 (1976); Taha v. Thompson, 120 N.C. App. 697, 704-05 , 463 S.E.2d 553 -58 (1995), disc. review denied, 344 N.C. 443 , 476 S.E.2d 130 -31 (1996). Punitive damages are not allowed even when the breach is wilful, malicious or oppressive. Newton, 291 N.C. at 111 , 229 S.E.2d at 301 . However, “when the breach of contract also constitutes or is accompanied by an identifiable tortious act, the tort committed may be grounds for recovery of punitive damages.” Taha, 120 N.C. App. at 704-05 , 463 S.E.2d at 558 . Mere allegations of an identifiable tort are “insufficient alone to support a claim for punitive damages.” Id. Furthermore, in order to sustain a claim for punitive damages, there must be an identifiable tort which is accompanied by or partakes of some element of aggravation. McDaniel v. Bass-Smith Funeral Home, Inc., 80 N.C. App. 629, 634 , 343 S.E.2d 228, 231 (1986). Here, there was no identifiable tortious act since the trial court refused to submit the issues of unfair and deceptive trade practices and intentional infliction of emotional distress to the jury. Therefore, even if the actions of the defendant amounted to a breach of contract, there was no identifiable tort to support punitive damages.
The majority holds that a separate identifiable tortious act is not required to support an award of punitive damages in a breach of contract case, citing Dailey v. Integon Ins. Corp., 75 N.C. App. 387 , 331 S.E.2d 148 , disc. review denied, 314 N.C. 664 , 336 S.E.2d 399 (1985) in support of this proposition. However, in that case, this Court found that the tort alleged the defendant’s bad faith refusal to settle, “not only accompanied the breach of contract, it also was a breach of contract that was accomplished or accompanied by some element of aggravation.” Id. at 396, 331 S.E.2d at 154 . This Court further found that “the record is replete with evidence of defendant’s malice, oppression, wilfulness and reckless indifference to consequences.” Id. at 396 , 331 S.E.2d at 155 . Therefore, this Court found an identifiable tort from the plaintiff’s allegations sufficient to support a claim for punitive damages in a breach of contract action.
Furthermore, the defendant acted within his rights as a bail bondsman when he surrendered the plaintiff to the custody of law enforcement. The concept of bail is rooted in English common law. *362 Bail bondsmen and the bounty hunters they employ to track down fugitives are essential in the American judicial system. Bounty hunters return to custody over ninety-nine percent of the criminal defendants who contract with a bondsman and then “jump” bail which amounts to well over 25,000 fugitives a year. Andrew DeForest Patrick, Note, Running From the Law: Should Bounty Hunters be Considered State Actors and Thus Subject to Constitutional Restraints?, 52 Vand. L. Rev. 171 , 176 (1999). Due to a state’s limited resources and the efficiency of bail bondsmen, it is clear what a critical role they play in the criminal justice system. Id.
Traditionally, the bail bondsman or surety was granted the same rights and powers as a sheriff capturing an escaped prisoner. State v. Mathis, 349 N.C. 503, 509 , 509 S.E.2d 155, 158 (1998). Since the defendant or “principal was never out of the ‘custody’ of the surety, the surety could take him at any time, ‘when and where he pleases.’ ” Id. (quoting Read v. Case, 4 Conn. 166, 170 (1822)). The United States Supreme Court has summarized the powers of bail bondsmen as follows:
When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuation of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him wp in their discharge; and if that cannot be done at once, they may imprison him until it can be done.
It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern it is said: “The bail have their principal on a string, and may pull the string whenever they please and render him in their discharge.”
Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371-72 , 21 L. Ed. 287, 290 (1872) (emphasis added).
The broad power given to bail bondsmen is derived from a contractual relationship between the surety and the principal. Mathis, 349 N.C. at 510 , 509 S.E.2d at 159 . As our Supreme Court stated “the bond agreement provides that the surety post the bail, and in return, the principal agrees that the surety can retake him at any time, even before forfeiture of the bond.’’ Id. (emphasis added). The government is not to interfere with this private right to recapture on the part of the surety and the “seizure of the principal by the surety is *363 technically not an ‘arrest’ at all and may be accomplished without process of law.” Id.
The common law of North Carolina has always recognized the broad powers of bail bondsmen. Id. at 511 , 509 S.E.2d at 160 . In addition, N.C. Gen. Stat. § 58-71-20 (Cum. Supp. 1998) provides as follows:
At any time before there has been a breach of the undertaking in any type of bail or fine and cash bond the surety may surrender the defendant to the official to whose custody the defendant was committed at the time bail was taken, or to the official into whose custody the defendant would have been given had he been committed; in such case the full premium shall be returned within 72 hours after the surrender. The defendant may be surrendered without the return of the premium for the bond if the defendant does any of the following:
(1) Willfully fails to pay the premium to the surety or willfully fails to make a premium payment under the agreement specified in G.S. 58-71-167.
(2) Changes his or her address without notifying the surety before the address change.
(3) Physically hides from the surety.
(4) Leaves the State without the permission of the surety.
(5) Violates any order of the court.
Thus, it is clear that a bail bondsman may take a defendant into custody at any time. Bail bondsmen usually base their decision to surrender a principal based on concern that the defendant will “jump” bail and fail to appear; however, they are not required to do so. If a bail bondsman turns in a defendant without justification, he is liable only in contract. As the statute provides, the bail bondsman would be required to refund the bond premium to the principal. In this case, regardless of whether or not plaintiff has a valid claim for a breach of contract, when the defendant surrendered the plaintiff, he was within his right to do so. Therefore, there can be nothing aggravating about defendant’s conduct to warrant punitive damages since he acted within the bounds of the law when he surrendered plaintiff. Any further restraints placed on the broad powers accorded bail bondsmen should be done by the legislature, not by subjecting them to punitive damages where juries do not have an understanding of *364 the rights of the bail bondsmen or of the role they perform in the criminal justice system.