# Holloway v. Wachovia Bank & Trust Co., N.A.

> Court of Appeals of North Carolina · April 6, 1993 · 109 N.C. App. 403

URL: https://www.frixlaw.com/law-library/cases/9852961

## Case

- **Full name:** HALLIE K. HOLLOWAY, SUE HOLLOWAY and Minors: DAMIEN LEE HOLLOWAY and SWANZETT HOLLOWAY, Plaintiffs-Appellants v. WACHOVIA BANK & TRUST COMPANY, N.A., and JEAN DAWSON, Defendants-Appellees
- **Court:** Court of Appeals of North Carolina
- **Decided:** April 6, 1993
- **Citations:** 109 N.C. App. 403; 428 S.E.2d 453; 1993 N.C. App. LEXIS 432
- **Precedential status:** Published
- **Opinion:** Dissent by Lewis
- **Judges:** Eagles, Wells, Lewis
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852961

## How later opinions describe it (automated extraction)

- concluding, in case of first impression, that transferred intent doctrine applied to a civil assault claim when defendant bank agent brandished firearm at people in car, including plaintiff, during attempt to repossess car, but did not point firearm directly at plaintiff

## Opinion text

Judge Lewis
dissenting.
I respectfully dissent from Part VIII of the majority opinion, which allows Damien Holloway and Swanzette Holloway to go forward on the issue of punitive damages as to Damien Holloway’s battery claim and Swanzette Holloway’s assault claim. In their Prayer for Relief, plaintiffs requested judgment in their favor and “[t]hat each judgment amount assessed be increased by treble the amount fixed.” Never did plaintiffs indicate they were seeking punitive damages anywhere in their Complaint or Prayer for Relief. Under the “notice theory” of pleading, I believe plaintiffs should *424 specifically request punitive damages to put defendants on notice of the possibility of unlimited damages.
The majority cites Huff v. Chrismon, 68 N.C. App. 525 , 315 S.E.2d 711 , disc. rev. denied, 311 N.C. 756 , 321 S.E.2d 134 (1984), for the position that under notice pleading it is no longer necessary to allege the specific aggravating circumstances giving rise to a claim for punitive damages. However, in that case the plaintiffs specifically requested punitive damages in their complaint, thus leaving no question that defendants were on notice plaintiffs were seeking punitive damages. Id. at 528, 315 S.E.2d at 713 . In Holley v. Hercules, Inc., 86 N.C. App. 624 , 359 S.E.2d 47 (1987), this Court stated that “our courts have usually not required the pleader to specifically plead, by name, punitive damages; they have rather held that it is enough that the facts tending to establish the aggravated character of the wrong are alleged . . . .” 86 N.C. App. at 627 , 359 S.E.2d at 49 . On the other hand, in Warren v. Colombo, 93 N.C. App. 92 , 377 S.E.2d 249 (1989), another panel of this Court stated that under the notice theory of pleading, plaintiff “need not allege circumstances justifying recovery of punitive damages.” 93 N.C. App. at 102 , 377 S.E.2d at 255 . The Court, however, found plaintiff’s allegations insufficient even under notice pleading standards. The allegation of willful and wanton conduct was “buried among negligence allegations,” and plaintiff did not request punitive damages against that defendant in any claim or prayer for relief. Id.
The law is less than clear on the requisites for properly pleading punitive damages under notice pleading standards. From the cases mentioned it appears that punitive damages must be mentioned by name in the complaint, or the language of the complaint must clearly set forth the aggravating factors entitling plaintiffs to punitive damages. The majority relied on the latter method in allowing the claim for punitive damages to go forward.
I would hold that plaintiffs must specifically claim punitive damages in their complaint or prayer for relief in order to put defendants on notice of the possibility of unlimited damages. In this case, plaintiffs’ request for treble damages was consistent with their Chapter 75 claim for unfair and deceptive trade practices. A request for treble damages is for a specific and limited amount, whereas a request for punitive damages is for an unlimited amount of damages. Defendants would certainly prepare for trial much differently if they knew they were potentially subject to punitive *425 damages. Moreover, there is no authority for the proposition that pointing a gun at someone automatically gives rise to a claim for punitive damages where there is no alleged injury, either physical or emotional. Punitive damages should not be sprung on unsuspecting defendants at the instruction conference. They should be clearly pled without “hidden” notice.
For this reason, I respectfully dissent as to Part VIII of the majority opinion; I concur with all other sections.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852961. Public record. Not legal advice.