DAVIS, Judge.
Virginia Radcliffe ("Plaintiff") initiated this action alleging a violation of her civil rights and the infliction of various types of tortious conduct against her by the Avenel Homeowners Association, Inc. ("the Association"), Carmelo Buccafurri ("Buccafurri"), Stephen Murray ("Murray"), Thomas Dinero ("Dinero"), David Hull ("Hull"), Richard Progelhof ("Progelhof"), and Ron Zanzarella ("Zanzarella") (collectively "Defendants"). Plaintiff appeals from two orders of the trial court dismissing a number of the claims asserted by her in this action pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. After careful review, we (1) affirm the trial court's 21 August 2014 order; (2) reverse the portions of the trial court's 4 February 2015 order dismissing (a) Plaintiff's claims for intentional infliction of emotional distress against Buccafurri, Hull, Dinero, Progelhof, Zanzarella, and Murray; and (b) Plaintiff's tortious interference with prospective economic advantage claims (related to her prospective employment with the United Methodist Church) against Hull, Murray, Progelhof, and Zanzarella; and (3) remand for further proceedings.
We have summarized below the allegations of Plaintiff's second amended complaint,
In March of 2001, Plaintiff moved to the Avenel subdivision ("Avenel") in New Hanover County, North Carolina in order to pursue a career with the United Methodist Church ("the UMC"). Plaintiff had prospects for employment with a local chapter of the UMC and was a certified candidate for ordination as a minister, having recently graduated from Yale Divinity School.
As a resident of Avenel, Plaintiff was required to join the Association and be subject to its covenants and restrictions. In return, Plaintiff was entitled to utilize certain common areas within Avenel, including a pier, a floating dock, a gazebo, an entrance driveway, and several parking lots.
During the time period in which Plaintiff lived in Avenel, the individual Defendants held various positions on the Association's board of directors. Three of the individual Defendants — Buccafurri, Murray, and Hull — were also Plaintiff's neighbors. Beginning in
On 27 March 2003, Plaintiff was walking on the street in front of her house when Zanzarella drove an SUV directly at her while Progelhof sat in the front passenger seat. Buccafurri and Murray confronted Plaintiff at the Avenel gazebo on or about 25 May 2003. They verbally berated her, stating that they (1) "had a plan to get rid of [her] or to cause her to leave Avenel"; (2) "were going to ruin [her] reputation and her career in Christian ministry"; (3) "would turn all of [her] friends against her"; (4) "would fix it so [she] could not walk the streets of Avenel unmolested"; (5) "would drive [her] into a depression so deep that she would commit suicide"; and (6) "would kill [her] to get her out of her house."
Hull and Progelhof on several occasions told Plaintiff that "they did not want a `helpless female' living in the neighborhood." On 20 December 2003, Zanzarella yelled at her: "Hey you fat pig, you better get out of the neighborhood." On another occasion, Zanzarella, Dinero, Murray, and Buccafurri told Plaintiff to "`[e]at s* * * and die[.]'" At one point, Hull also said to Plaintiff that "he could fix it so he could legally take her house away from her and there would be nothing she could do to stop him[.]" In addition, he uttered racial epithets towards her.
At one point in December of 2003, Buccafurri and Dinero shouted disparaging remarks at Plaintiff based on her religious beliefs while she was washing her car in her driveway. That same day, Buccafurri, Dinero, and Murray strung Christmas lights on the bushes outside of Murray's and Buccafurri's home (facing Plaintiff's house) that "[w]hen illuminated ... [were] about 20 feet long and 8 feet high and read WWJD (standing for What Would Jesus Do)." On one or more occasions, Plaintiff was told by various Defendants that "she was one of those `born again' Christians who would bring other undesirable people into the Avenel community."
On 31 December 2003, Buccafurri accosted Plaintiff while she was walking in Avenel and chased her, yelling "I'm gonna kill you, you Christian B* * * *." Plaintiff ran to a nearby neighbor's house and called the police.
On 24 February 2004, the Association held a meeting, which Plaintiff and some or all of the individual Defendants attended. During the meeting, Zanzarella shouted that "[Plaintiff] doesn't deserve to live in Avenel[.]" He and Murray then both yelled "[e]veryone thinks you are crazy" at Plaintiff. Murray shouted "[l]et's get rid of her" to the other attendees of the meeting. At that point, Zanzarella approached Plaintiff with clenched fists and had to be physically removed from the meeting space and taken to the parking lot.
On 8 April 2004, Murray cornered Plaintiff as she was walking on the pier by the Avenel boat facility. He made "crude, sexual, and violent gestures toward [her] while making threats." Murray proceeded to "beat [Plaintiff and] then shouted at [her] `You'll never be a minister now' after he battered [her]." Murray threw Plaintiff to the ground, kicked her, and jumped on her. Plaintiff was transported to a local hospital via ambulance where she was informed she needed surgery for broken ribs, torn knee ligaments, deep bruising, bone contusions, and other related injuries. That same day, Murray filed a lawsuit against her in which he falsely claimed she had assaulted and battered him.
On 29 May 2004, Buccafurri and Zanzarella accosted Plaintiff and a friend of hers at the Avenel gazebo, shouting obscenities and threats. They followed Plaintiff and her friend as they were walking back to her house, continuing to shout at and threaten her along the way.
On 23 June 2004, while Plaintiff was at the Avenel gazebo, Hull, Zanzarella, and Progelhof surrounded her and "physically prevented" her from leaving while shouting disparaging and threatening remarks at her. Plaintiff called 911 and received an escort home from law enforcement officers. The following day, Progelhof and Zanzarella instituted criminal proceedings against Plaintiff in which they falsely accused her of communicating threats. That same day, Buccafurri
On 18 October 2004, Buccafurri and Murray shouted loudly at Plaintiff and her friend as they stood in Plaintiff's driveway. They "began waving their arms wildly and chased [Plaintiff] and her friend from [her] yard."
At some point in time, Buccafurri sent a packet of documents to UMC representatives containing false information about Plaintiff that was damaging to her reputation "in order to prevent [Plaintiff's] ordination[.]" The UMC did, in fact, revoke Plaintiff's ordination candidate certification on 2 February 2005.
Plaintiff was also denied employment by the Boys and Girls Home of North Carolina ("Boys and Girls Home") — an organization that was a "local Christian ministry." Plaintiff had sought a position as a "mentor supervisor" at the Boys and Girls Home but was denied a job offer on 1 July 2005 due to the false criminal charges previously filed against her by Buccafurri, Progelhof, and Zanzarella. On 18 July 2005, Buccafurri accosted Plaintiff at a local grocery store and stated "that he would make sure she never got a job anywhere."
On 14 June 2006, the North Carolina Human Relations Commission ("the NCHRC") brought a lawsuit ("the NCHRC Lawsuit") on Plaintiff's behalf in Wake County Superior Court asserting a cause of action against Defendants for interference with Plaintiff's civil rights in violation of N.C. Gen.Stat. § 99D-1. On 4 January 2007, the NCHRC lawsuit was voluntarily dismissed.
On 26 March 2007, Plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina ("the Federal Action") against all of the same individuals and entities named as Defendants in the present action. In her federal complaint, Plaintiff alleged claims for (1) violation of the Fair Housing Act ("FHA") against all Defendants; (2) interference with Plaintiff's civil rights pursuant to N.C. Gen.Stat. § 99D-1 against all Defendants; (3) assault and battery against Murray relating to the 8 April 2004 incident at the pier in which he physically beat her; (4) false imprisonment against Hull, Zanzarella, and Progelhof; (5) malicious prosecution against Murray, Progelhof, Zanzarella, and Buccafurri; (6) intentional infliction of emotional distress ("IIED") against the individual Defendants; (7) negligent infliction of emotional distress ("NIED") against all Defendants; and (8) tortious interference with a prospective economic advantage against Buccafurri, Murray, Hull, Progelhof, and Zanzarella.
All of the defendants filed motions for summary judgment, and on 12 February 2013, the Honorable James C. Fox entered an order granting summary judgment in favor of Defendants on Plaintiff's FHA claim. Having disposed of the only claim asserted by Plaintiff arising under federal law, Judge Fox expressly declined to rule on Plaintiff's supplemental state law claims and dismissed these claims without prejudice.
On 14 March 2013, Plaintiff initiated the present action in New Hanover County Superior Court. On 10 May 2013, Plaintiff filed her first amended complaint, and she amended her complaint once more on 5 August 2013. In her second amended complaint, Plaintiff alleged the following causes of action: (1) IIED claims against all Defendants; (2) assault claims against Progelhof and Zanzarella related to the SUV incident occurring on 27 March 2003 in which Zanzarella drove his SUV directly at Plaintiff, causing her to run away ("the First SUV Incident"); (3) an assault claim against Zanzarella regarding the incident occurring on 2 June 2004 in which Zanzarella once again drove his SUV toward Plaintiff ("the Second SUV incident"); (4) an assault claim against Buccafurri based on the incident in which he chased her on 31 December 2003 ("the First Chasing Incident"); (5) assault claims against Buccafurri and Murray in connection with the incident in which they chased her on 18 October 2004 ("the Second Chasing Incident"); (6) assault
On 6 September 2013, the Association filed an answer and motion to dismiss Plaintiff's second amended complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted and Rule 12(b)(7) based on Plaintiff's alleged failure to join a necessary party. The individual Defendants subsequently filed answers containing similar motions.
On 16 June 2014, a hearing was held before the Honorable D. Jack Hooks, Jr. On 21 August 2014, Judge Hooks entered an order denying Defendants' Rule 12(b)(7) motions and granting Defendants' motions to dismiss Plaintiff's claims under N.C. Gen.Stat. § 99D-1 pursuant to Rule 12(b)(6).
A second hearing was held before Judge Hooks on 25 September 2014. On 4 February 2015, Judge Hooks entered an order dismissing (1) Plaintiff's IIED claims; (2) all of her assault claims against Progelhof, Zanzarella, Buccafurri, and Hull and all but one of her assault claims against Murray; (3) Plaintiff's tortious interference with prospective economic advantage claims against all Defendants except for Buccafurri with regard to Plaintiff's potential employment with the UMC; (4) her tortious interference with prospective economic advantage claims in connection with her potential employment with the Boys and Girls Home; and (5) Plaintiff's NIED claims.
Plaintiff filed a notice of appeal as to both of Judge Hooks' orders on 5 March 2015. On 18 March 2015, Defendants filed a notice of cross-appeal as to the 21 August 2014 order.
Initially, we must determine whether we have jurisdiction over Plaintiff's appeal and Defendants' cross-appeal. See Hous. Auth. of City of Wilmington v. Sparks Eng'g, PLLC, 212 N.C. App. 184, 187, 711 S.E.2d 180, 182 (2011) ("As an initial matter, we must address the extent, if any, to which Defendant's appeal is properly before us. An appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte." (citation, quotation marks, and brackets omitted)).
On 15 October 2015, Defendants filed a joint motion to dismiss Plaintiff's appeal on the ground that it is an impermissible interlocutory appeal from orders that are not final judgments. For the reasons set out below, we deny Defendant's motion.
Our caselaw makes clear that a substantial right is affected "where a possibility of inconsistent verdicts exists if the case proceeds to trial." Heritage Operating, L.P. v. N.C. Propane Exch., LLC, 219 N.C. App. 623, 627, 727 S.E.2d 311, 314 (2012) (citation and quotation marks omitted).
Id. at 627-28, 727 S.E.2d at 314-15 (citation, quotation marks, and brackets omitted).
We have further held that "so long as a claim has been finally determined, delaying the appeal of that final determination will ordinarily affect a substantial right if there are overlapping factual issues between the claim determined and any claims which have not yet been determined." Carcano v. JBSS, LLC, 200 N.C. App. 162, 168, 684 S.E.2d 41, 47 (2009) (citation and quotation marks omitted). "Issues are the `same' if facts relevant to their resolution overlap in such a way as to create a risk that separate litigation of those issues might result in inconsistent verdicts." Hamilton v. Mortg. Info. Serv., Inc., 212 N.C. App. 73, 79, 711 S.E.2d 185, 190 (2011).
We are satisfied that Plaintiff has sufficiently alleged a common factual nexus between all of her claims such that there exists a possibility of inconsistent verdicts absent immediate appeal of the trial court's orders. See Carcano, 200 N.C.App. at 168, 684 S.E.2d at 47 ("Because there are overlapping factual issues, inconsistent verdicts could result. We hold, thus, that ... plaintiff's appeal is properly before us.").
Defendants also argue that Plaintiff's appeal from the trial court's 21 August 2014 order is time-barred. As a result, Defendants contend, the portion of her appeal arising from that order must be dismissed.
Plaintiff filed a notice of appeal on 5 March 2015 that referenced both of the trial court's orders. Therefore, while her appeal of the 4 February 2015 order was timely, her notice of appeal as to the 21 August 2014 order was filed well beyond the applicable thirty-day deadline. See N.C.R.App. P. 3(c) ("In civil actions and special proceedings, a party must file and serve a notice of appeal ... within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure[.]").
However, because of the factually overlapping nature of Plaintiff's claims, we elect in the interest of judicial economy to exercise our discretion under Rule 21 of the North
Defendant's cross-appeal — which is based entirely on the trial court's 21 August 2014 order denying their motions to dismiss under Rule 12(b)(7) — is also interlocutory. The trial court's order was not certified for immediate appeal pursuant to Rule 54(b), and Defendants have failed to show a substantial right that would be lost if they had to wait until entry of a final judgment to appeal the denial of their Rule 12(b)(7) motions.
Nevertheless, in furtherance of the principles of equity and fairness to the parties, we elect to similarly treat Defendant's cross-appeal as a petition for certiorari and consider the merits of the cross-appeal. Therefore, we proceed to address the merits of both Plaintiff's appeal and Defendants' cross-appeal.
The only claims left undisturbed by the trial court's 21 August 2014 and 4 February 2015 orders are Plaintiff's (1) assault claim against Murray in connection with the Pier Incident; (2) battery claim against Murray in connection with the Pier Incident; (3) false imprisonment claims against Progelhof, Hull and Zanzarella related to the Second Gazebo Incident; (4) tortious interference with prospective economic advantage claim against Buccafurri relating to her potential employment with the UMC; and (5) malicious prosecution claims against Murray, Progelhof, Zanzarella, and Buccafurri.
Feltman, 238 N.C.App. at ___, 767 S.E.2d at 619 (citation omitted). "Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim." Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 74, 752 S.E.2d 661, 663 (2013) (citation omitted).
Before we discuss Plaintiff's specific claims for relief, it is necessary to address the threshold issue of whether the running of the statute of limitations has been tolled or otherwise rendered inapplicable to Plaintiff's claims. The specific incidents set out in Plaintiff's second amended complaint all occurred approximately nine years before the present action was filed. Defendants contend on appeal that many of Plaintiff's claims were properly dismissed as time barred.
Waddle v. Sparks, 331 N.C. 73, 85-86, 414 S.E.2d 22, 28-29 (1992) (citation and quotation marks omitted).
Plaintiff asserts that the statute of limitations defense is inapplicable in this case based on two theories. First, she attempts to invoke the continuing wrong doctrine. Second, she contends that the running of the applicable limitations periods for her claims was tolled by virtue of her filing the Federal Action. We discuss each of these arguments in turn.
With regard to the continuing wrong doctrine, our Supreme Court has recognized this
Birtha v. Stonemor, N.C., LLC, 220 N.C. App. 286, 292, 727 S.E.2d 1, 7 (2012) (internal citations, quotation marks, and ellipses omitted), disc. review denied, 366 N.C. 570, 738 S.E.2d 373 (2013).
First, Plaintiff was not subjected to a longstanding policy of discrimination for purposes of the doctrine. While her second amended complaint alleges insulting language and threats referencing her religion and gender that were made by Defendants, Judge Fox's order in the Federal Action — as discussed below — expressly rejected Plaintiff's argument that the tortious conduct she alleged was motivated by discrimination based on her gender or religious beliefs. While Plaintiff contends that the wrongful acts giving rise to this action all derive from Defendants' common scheme to force her to leave Avenel, we do not believe this allegation is sufficient to invoke the continuing wrong doctrine.
Nor does the second category of conduct referred to in Birtha apply here. Plaintiff has alleged the commission of various intentional torts by Defendants as opposed to a series of separate obligations all stemming from the same original contractual — or other — legal obligation. See Marzec v. Nye, 203 N.C. App. 88, 94-95, 690 S.E.2d 537, 542 (2010) (failure to make each successive monthly salary payment as it became due following defendant's breach of original payment obligation constituted new continuing wrong); Babb v. Graham, 190 N.C. App. 463, 481, 660 S.E.2d 626, 637 (2008) (trustee's recurring refusal to make distributions under trust constituted continuing wrong), disc. review denied, 363 N.C. 257, 676 S.E.2d 900 (2009).
Therefore, the continuing wrong doctrine is inapplicable to the present case. See Morrison-Tiffin v. Hampton, 117 N.C. App. 494, 499-500, 451 S.E.2d 650, 655 (finding "no evidence to support the application of the continuing wrong doctrine" where plaintiffs alleged violation of constitutional rights under 42 U.S.C. § 1983 based on several years of sexual harassment and discrimination by defendant (internal citations and quotation marks omitted)), appeal dismissed and disc. review denied, 339 N.C. 739, 454 S.E.2d 654 (1995).
With regard to Plaintiff's tolling argument, this Court has recently addressed the application of tolling principles to situations where a plaintiff's state court action is filed following a federal court's dismissal without prejudice of the plaintiff's state law claims in a
Glynne v. Wilson Med. Ctr., 236 N.C. App. 42, 48, 762 S.E.2d 645, 649 (2014) (internal citations, quotation marks, brackets, and ellipses omitted).
The tolling provision of 28 U.S.C. § 1367(d), however, applies only to state law claims that were actually asserted in a federal lawsuit. It does not apply to claims arising out of the same set of facts that could have been brought in the federal lawsuit but were not. Instead, the statute of limitations for such claims continues to run during the pendency of the federal action.
Our decision in Renegar v. R.J. Reynolds Tobacco Co., 145 N.C. App. 78, 549 S.E.2d 227, disc. review denied, 354 N.C. 220, 554 S.E.2d 344 (2001) is instructive. In Renegar, the plaintiff was fired from his job with the defendant. He brought several federal claims against the defendant in federal court as a result of the termination of his employment. Id. at 78-79, 549 S.E.2d at 229. He later voluntarily dismissed the federal action without prejudice and then filed a lawsuit in North Carolina superior court for wrongful discharge in violation of public policy — a claim arising under State law. The trial court granted summary judgment in favor of the defendant on statute of limitations grounds. The court reasoned that because the plaintiff had failed to assert his wrongful discharge claim as a supplemental claim in his federal action, the limitations period for that claim had not been tolled during the pendency of the federal action. Id. at 79, 549 S.E.2d at 229.
On appeal, we affirmed the trial court's ruling, holding that
Id. at 85, 549 S.E.2d at 232-33 (internal citations, quotation marks, and brackets omitted).
Thus, the limitations period for any claim that Plaintiff is asserting in the present action against a particular Defendant that she also asserted against that Defendant in the Federal Action was tolled until thirty days after the Federal Action was dismissed. However, such tolling would not apply to any claims asserted by Plaintiff in the present action against a particular Defendant that were not brought in the Federal Action. Furthermore, because (1) the Federal Action was not filed until 26 March 2007; and (2) all of Plaintiff's tort claims are governed by a three-year statute of limitations, only claims
With these principles in mind, we next consider whether those claims in Plaintiff's second amended complaint dismissed by the trial court were properly subject to dismissal.
We first address Plaintiff's argument that the trial court erred in dismissing her claim under N.C. Gen.Stat. § 99D-1. Defendants contend that the dismissal of this claim was proper based on collateral estoppel. We agree.
The doctrine of collateral estoppel prevents issues that were actually litigated and necessary to the outcome of a prior suit from being relitigated in a later action between the original parties or their privies. Hedgepeth v. Parker's Landing Prop. Owners Ass'n, Inc., 236 N.C. App. 56, 66, 762 S.E.2d 865, 871 (2014). The party alleging collateral estoppel must demonstrate
Tucker v. Frinzi, 344 N.C. 411, 414, 474 S.E.2d 127, 128-29 (1996) (citation and brackets omitted). Collateral estoppel only applies to "matters in issue or points controverted, upon the determination of which the finding or verdict was rendered." City of Asheville v. State, 192 N.C. App. 1, 17, 665 S.E.2d 103, 117 (2008) (citation, quotation marks, and emphasis omitted), appeal dismissed and disc. review denied, 363 N.C. 123, 672 S.E.2d 685 (2009).
N.C. Gen.Stat. § 99D-1 provides, in pertinent part, as follows:
N.C. Gen.Stat. § 99D-1(a) (2015). Therefore, § 99D-1 expressly provides that in order for a claim to arise thereunder, the defendant's conduct must be motivated by either a racial, religious, ethnic, or gender-based discriminatory animus.
In the Federal Action, Judge Fox dismissed Plaintiff's FHA claim based on the following reasoning:
In McCallum v. N.C. Co-op. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, appeal dismissed and disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001), the plaintiff brought retaliatory discharge and equal protection claims against the defendants based on the United States Constitution, claims for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, and a claim alleging violation of his rights under several provisions of the North Carolina Constitution. The defendants removed the case to federal court and later moved for summary judgment. Id. at 49, 542 S.E.2d at 230.
The federal court granted summary judgment on all claims arising under federal law and dismissed without prejudice the claims alleging violations of the North Carolina Constitution. In its order, the federal court ruled that the plaintiff had failed to show any discriminatory intent by the defendants. Id. at 49-50, 542 S.E.2d at 230.
Approximately one month later, the plaintiff filed a new complaint in North Carolina superior court in which he once again alleged that his discharge had been based on discrimination and retaliation in violation of the North Carolina Constitution. The defendants moved for summary judgment, contending that these claims were barred by collateral estoppel because of the federal court's ruling. The trial court denied the motion and defendants appealed. Id. at 50, 542 S.E.2d at 230.
In reversing the trial court, we held as follows:
Id. at 54-56, 542 S.E.2d at 233-34 (internal citation, quotation marks, and brackets omitted).
Plaintiff's § 99D-1 claims in the present case are based upon the same facts and circumstances that were before the federal court in its consideration of her FHA claims. Therefore, we conclude that the issue of whether Plaintiff was discriminated against by Defendants based upon her religious beliefs or gender has already been fully determined in the Federal Action and decided adversely to her. Accordingly, we hold that Plaintiff is collaterally estopped from asserting her § 99D-1 claims in the present action and that the trial court correctly dismissed these claims.
Plaintiff next contends that the trial court erred in dismissing her claims for IIED against all Defendants. "The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Holleman v. Aiken, 193 N.C. App. 484, 501, 668 S.E.2d 579, 590 (2008) (citation and quotation marks omitted). "The tort may also exist where defendant's actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981).
"Conduct is extreme and outrageous when it is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The determination of whether conduct rises to the level of extreme and outrageous is a question of law." Johnson v. Colonial Life & Acc. Ins. Co., 173 N.C. App. 365, 373, 618 S.E.2d 867, 872-73 (2005) (internal citations and quotation marks omitted), disc. review denied, 360 N.C. 290, 627 S.E.2d 620 (2006).
In the Federal Action, Plaintiff did not assert an IIED claim against the Association and, therefore, based on the tolling principles discussed above, her deadline for asserting this claim against the Association was not tolled. "The statute of limitations for [an] intentional infliction of [emotional] distress [claim] is three years." Waddle, 331 N.C. at 85, 414 S.E.2d at 28. Accordingly, because the present action was not filed until 2013, her IIED claim against the Association is barred by the statute of limitations. See Renegar, 145 N.C.App. at 85, 549 S.E.2d at 232-33.
Plaintiff's IIED claims against Buccafurri, Dinero, Hull, Progelhof, Murray, and Zanzarella were, conversely, tolled during the pendency of the Federal Action because these claims were asserted by Plaintiff in that lawsuit. As a result, we must determine whether Plaintiff has stated viable IIED claims against these individual Defendants based on acts alleged by her to have been committed on or after 26 March 2004.
After carefully reviewing the allegations contained in her pleadings, we conclude that Plaintiff has, in fact, pled valid claims for IIED against each of the individual Defendants. Even excluding from our consideration her references to conduct by these Defendants occurring prior to 26 March 2004, she has alleged a virtually unending barrage of abuse, harassment, threats, scorn,
In analyzing the validity of her IIED claims, we are guided by our decision in Wilson v. Pearce, 105 N.C. App. 107, 412 S.E.2d 148, disc. review denied, 331 N.C. 291, 417 S.E.2d 72 (1992). In Wilson, the plaintiffs brought an IIED claim against their next door neighbors, Carl and Wanda Pearce. The defendants, who believed that the plaintiffs' fence was impermissibly encroaching on their property, engaged in a campaign of harassment for several years in an attempt to cause the plaintiffs to move the fence. Id. at 110-11, 412 S.E.2d at 149-50.
The plaintiffs presented evidence at trial of the following acts by the defendants: (1) Mr. Pearce would stand in his yard and raise his fists at Plaintiffs while making obscene gestures and loudly cursing at them; (2) Mr. Pearce frequently stood in front of his window in full view of Mrs. Wilson and "made obscene gestures with his `private parts' at her and then laughed at her reaction" while simultaneously mouthing obscene words; (3) "[the d]efendants have for several years piled firewood against the Wilsons' fence to the point that the firewood is taller than the fence and bulges the fence into the Wilsons' yard" despite the fact that the defendants did not own a fireplace; (4) Mr. Pearce threw broken glass into the plaintiffs' yard; (5) the defendants filed false police reports against the plaintiffs; (6) Mr. Pearce threatened to kill Mr. Wilson by "knock[ing] his god damned brains out" with a rock; (7) Mr. Pearce fired his handgun past Mr. Wilson into his yard; and (8) the defendants regularly left their lawnmower running outside of the plaintiffs' bedroom window at 6:00 a.m. in the morning. Id. at 115-16, 412 S.E.2d at 152-53.
On appeal, we summarized the plaintiffs' evidence as follows: "Generally, defendants... cursed and threatened plaintiffs, reported them to the City of Durham for untrue and alleged violations of city ordinances, threw items into plaintiffs' yard, made obscene gestures to plaintiffs and their children and generally disturbed their peace." Id. at 111, 412 S.E.2d at 150. We proceeded to
Id. at 117, 412 S.E.2d at 153.
We believe the alleged acts of Buccafurri, Dinero, Hull, Progelhof, Murray, and Zanzarella in the present case are analogous to the defendants' conduct in Wilson. Plaintiff has alleged that the individual Defendants perpetuated a prolonged multi-year campaign of harassment, threats, and abuse that grossly exceeded the bounds of propriety.
We find Plaintiff's allegations distinguishable from the cases relied upon by Defendants in which this Court rejected IIED claims. See Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 355, 595 S.E.2d 778, 783 (2004) (affirming summary judgment on IIED claim by supervisor against former employee where "[the supervisor] confronted [the employee], [and] he [responded by] threaten[ing] to make accusations against her, yelled at her, walked off his assignment and then, when he returned, threw a package of papers at [the supervisor]" and "[t]he next day [the employee] filed
We cannot agree with Defendants that-Smith-Price, Guthrie, Johnson, or Hogan compel the dismissal of Plaintiff's IIED claims in the present case. In none of these cases was the conduct of the defendants akin to the multi-year systematic pattern of harassment, intimidation, and abuse alleged to have been inflicted upon Plaintiff by the individual Defendants here. While Defendants are correct that isolated incidents of insults, threats, and similar conduct are insufficient to support a claim for IIED under North Carolina law, see Chidnese v. Chidnese, 210 N.C. App. 299, 316, 708 S.E.2d 725, 738 (2011), Plaintiff has alleged far more here. Although some of her allegations of insults and indignities would not by themselves rise to the level of extreme and outrageous conduct necessary for an IIED claim, her allegations — when considered in their entirety — assert not merely isolated insults but rather unrelenting abuse that involved her being beaten, physically restrained, threatened, and subjected to extraordinarily vulgar and offensive comments. For these reasons, Plaintiff has satisfied the pleading requirements for this tort. Her allegations describe a prolonged exposure to intolerable conduct that no human being should be forced to endure.
Consequently, we hold that the acts of Buccafurri, Murray, Hull, Dinero, Progelhof, and Zanzarella as alleged by Plaintiff are sufficient to form the basis for IIED claims against them.
Plaintiff also argues that the trial court erred by dismissing her assault claims against Zanzarella, Progelhof, Buccafurri, and Hull and all but one of her assault claims against Murray.
Plaintiff next contends that the trial court erred in dismissing her two claims for tortious interference with prospective economic advantage ("TIPEA"). Plaintiff asserted these claims based on two separate theories.
Her first claim was brought against all Defendants and was based on their alleged interference with Plaintiff's job opportunity with the UMC. The trial court dismissed this claim as to all Defendants except Buccafurri. Plaintiff's second TIPEA claim was brought only against the Association, Buccafurri, Hull, Progelhof, and Zanzarella and concerned her potential employment with the Boys and Girls Home as a mentor supervisor.
"An action for tortious interference with prospective economic advantage is based on conduct by the defendants which prevents the plaintiffs from entering into a contract with a third party." Walker v. Sloan, 137 N.C. App. 387, 392-93, 529 S.E.2d 236, 241 (2000). In order "to state a claim for wrongful interference with prospective advantage, the plaintiffs must allege facts to show that the defendants acted without justification in inducing a third party to refrain from entering into a contract with them which contract would have ensued but for the interference." Id. at 393, 529 S.E.2d at 242 (citation and quotation marks omitted).
The statute of limitations for TIPEA claims is three years. See N.C. Gen.Stat. § 1-52. The allegations in the second amended complaint relevant to these claims concern actions taken sometime prior to 1 July 2005. In the Federal Action, Plaintiff did not assert a TIPEA claim against either the Association or Dinero and, therefore, no tolling of the limitations period occurred as to these claims. See Renegar, 145 N.C.App. at 85, 549 S.E.2d at 232-33. Therefore, the trial court correctly dismissed her TIPEA claims against the Association and Dinero as time barred.
Plaintiff's TIPEA claims against Hull, Progelhof, Zanzarella, Murray, and Buccafurri were brought in the Federal Action. Therefore, unlike her claims against the Association and Dinero, the statute of limitations was tolled as to her TIPEA claims brought against these Defendants.
We address separately each of Plaintiff's two theories supporting her TIPEA claims against these Defendants.
Plaintiff's TIPEA claims against Hull, Progelhof, Zanzarella, Murray, and Buccafurri
(Emphasis added).
In Walker, we elaborated on the pleading requirements applicable to TIPEA claims:
Walker, 137 N.C.App. at 393, 529 S.E.2d at 241-42 (internal citations, quotation marks, brackets, and ellipses omitted). See Owens v. Pepsi Cola Bottling Co. of Hickory, N.C. Inc., 330 N.C. 666, 680, 412 S.E.2d 636, 644 (1992) (a claim for "tortious interference with prospective economic advantage may be based on conduct which prevents the making of contracts").
Here, Plaintiff has alleged sufficient facts tending to show that Hull, Progelhof, Zanzarella, and Murray knowingly wrote
We believe these allegations satisfy the pleading requirements for a TIPEA claim. It is well settled that
Haynie v. Cobb, 207 N.C. App. 143, 148-49, 698 S.E.2d 194, 198 (2010) (internal citations and quotation marks omitted); see also Fournier v. Haywood Cty. Hosp., 95 N.C. App. 652, 654, 383 S.E.2d 227, 228 (1989) ("Pleadings must be liberally construed to do substantial justice, and must be fatally defective before they may be rejected as insufficient.").
In applying this liberal standard to Plaintiff's allegations, we conclude the trial court erred in dismissing her TIPEA claims against Hull, Progelhof, Zanzarella, and Murray based on her prospective employment with the UMC, and we therefore reverse this portion of the trial court's 4 February 2015 order.
We reach a contrary result with regard to Plaintiff's TIPEA claims relating to her potential employment with the Boys and Girls Home. It is well established that "[w]hile we treat plaintiffs' factual allegations as true, we may ignore plaintiffs' legal conclusions." Skinner v. Reynolds, 237 N.C. App. 150, 152, 764 S.E.2d 652, 655 (2014) (citation and quotation marks omitted).
Plaintiff has failed to make specific factual allegations as to acts by Defendants Hull, Progelhof, Zanzarella, and Buccafurri that would give rise to a valid TIPEA claim based on her failure to obtain employment with the Boys and Girls Home. As discussed above, Plaintiff expressly alleged that these Defendants were aware that she had achieved official certification as a candidate for ordained ministry within the UMC and were responsible for a packet containing false information about her being sent to the UMC that resulted in the UMC's decision to revoke her ordination candidate certification.
No comparable allegations exist with regard to her TIPEA theory relating to the Boys and Girls Home. Instead, Plaintiff essentially argues that the Boys and Girls Home declined to hire her because of the fact that criminal charges had been previously filed against her. While her second amended complaint does contend that these Defendants were responsible for the filing of the false charges, she has failed to adequately allege that the charges were taken out against her for the specific purpose of thwarting her chances of obtaining employment with the Boys and Girls Home.
Moreover, although the section of Plaintiff's second amended complaint addressing this cause of action contains a number of conclusory allegations that track the elements of a TIPEA claim, such conclusions alone are insufficient to state a legally sufficient claim for TIPEA. See Walker, 137 N.C.App. at 392, 529 S.E.2d at 241 ("In ruling on a Rule 12(b)(6) motion to dismiss [a TIPEA claim], the trial court regards all factual allegations of the complaint as true. Legal conclusions, however, are not entitled to a presumption of truth." (internal citation
Plaintiff next challenges the trial court's dismissal of her claims for NIED against all Defendants. "In order to state a claim for negligent infliction of emotional distress, a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause plaintiff severe emotional distress, and (3) the conduct did in fact cause plaintiff severe emotional distress." Fields v. Dery, 131 N.C. App. 525, 526-27, 509 S.E.2d 790, 791 (1998) (citation, quotation marks, and ellipses omitted), disc. review denied, 350 N.C. 308, 534 S.E.2d 590 (1999).
The fatal flaw with Plaintiff's NIED claims is that the allegations in her second amended complaint repeatedly reference a pattern of intentional conduct by Defendants. Moreover, the NIED section of her pleadings states, in pertinent part, as follows:
(Emphasis added).
These allegations demonstrate the invalidity of Plaintiff's NIED claims. It is nonsensical to assert that one or more of the Defendants were negligent by engaging in a purposeful scheme to harass, threaten, and intimidate her. Therefore, Plaintiff's NIED claims fail as a matter of law and were properly dismissed by the trial court. See Horne v. Cumberland Cty. Hosp. Sys., Inc., 228 N.C. App. 142, 149, 746 S.E.2d 13, 19 (2013) (affirming dismissal of NIED claim where "plaintiff's NIED claim is premised on allegations of intentional — rather than negligent — conduct").
The only remaining issue for resolution by this Court concerns Defendants' cross-appeal. In their cross-appeal, Defendants contend that the trial court erred in failing to dismiss Plaintiff's complaint in its entirety under Rule 12(b)(7) because Plaintiff failed to join a necessary party — the V. Duncan Radcliffe Trust (the "Trust"). We disagree.
Pursuant to Rule 12(b)(7), a defendant may move to dismiss an action for "[f]ailure to join a necessary party." N.C.R. Civ. P. 12(b)(7). "When faced with a motion under Rule 12(b)(7), the court will decide if the absent party should be joined as a party. If it decides in the affirmative, the court will order him brought into the action." Fairfield Mountain Prop. Owners Ass'n, Inc. v. Doolittle, 149 N.C. App. 486, 487, 560 S.E.2d 604, 605 (2002) (citation and quotation marks omitted).
It is well settled that "[a] `necessary' party is one whose presence is required for a complete determination of the claim, and is one whose interest is such that no decree can be rendered without affecting the party." Godette v. Godette, 146 N.C. App. 737, 739, 554 S.E.2d 8, 9 (2001) (citation and quotation marks omitted). Defendants contend that "the V. Duncan Radcliffe Trust [was] the true owner of the residence located at 1421 Avenel Drive, Wilmington, NC 28411 at all relevant times and [Plaintiff], Trustee of the V. Duncan Radcliffe Trust was the acting trustee at all relevant times." They therefore argue that Plaintiff's failure to join the Trust as a party mandates the dismissal of this action under Rule 12(b)(7). This argument is meritless.
This lawsuit involves intentional tort claims asserted by Plaintiff for acts allegedly inflicted upon her that caused her to personally suffer emotional distress, physical injuries, and financial harm. Therefore, because Plaintiff's claims are personal and unique to her, the Trust cannot be characterized as a necessary party. Accordingly, the trial court
For the reasons stated above, we reverse the portions of the trial court's 4 February 2015 order dismissing Plaintiff's (1) IIED claims against Buccafurri, Dinero, Hull, Progelhof, Zanzarella, and Murray; and (2) TIPEA claims concerning her potential employment with the UMC against Murray, Hull, Progelhof and Zanzarella. We affirm the trial court's 21 August 2014 order.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Judges CALABRIA and TYSON concur.
