N.C.P.I.—Civil 801.10

NOTE WELL: Use this instruction in conjunction with

all claims for relief arising prior to January 1, 1996.

Claims for relief arising on or after January 1, 1996 are

governed by N.C. Gen. Stat. § 1D-1 et seq., effective

January 1, 1996. For such cases, use N.C.P.I.-Civil

810.96.

This (state number) issue reads:

Was the defendant's malicious prosecution accompanied by actual

malice?

You are to answer this issue only if you have answered the (state

number) issue1 "Yes" in favor of the plaintiff.

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, that

the defendant's malicious prosecution was accompanied by actual

malice.2 "Actual malice" exists when a person [institutes] [continues] a

wrongful proceeding out of a motive of ill will, spite, grudge, revenge or

oppression.3 (Without one or more of these motives being present, a

person's [institution] [continuation] of a wrongful proceeding, even if

intentional and without excuse or just cause,4 is not accompanied by

"actual malice".)

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the

defendant's malicious prosecution was accompanied by actual malice,

then it would be your duty to answer this issue "Yes" in favor of the

plaintiff.5

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.