Glenn v. Johnson , 247 N.C. App. 660 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-523
Filed: 7 June 2016
Orange County, No. 13 CVS 2082
NORMAN GLENN, Plaintiff,
v.
EDGAR JOHNSON, Individually and as Chairman of the Board of Trustees;
EVERETTE W. JOHNSON, JR., individually and as Chairman of the Board of
Deacons; and NEW RED MOINTAIN MISSIONARY BABTIST CHURCH, INC.,
Defendants.
Appeal by plaintiff from orders entered 29 April 2014 by Judge R. Allen
Baddour, Jr., and 24 February 2015 by Judge Elaine M. O’Neal Bushfan in Orange
County Superior Court. Heard in the Court of Appeals 22 October 2015.
Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for plaintiff-
appellant.
Teague Campbell Dennis & Gorham, LLP, by Jacob H. Wellman, for defendant-
appellees Edgar Johnson and Everette W. Johnson, Jr.
Bailey & Dixon, LLP, by Philip A. Collins and G. Lawrence Reeves, for
defendant-appellee New Red Mountain Missionary Baptist Church, Inc.
McCULLOUGH, Judge.
Norman Glenn (“plaintiff”) appeals from the trial court’s order to dismiss in
part and order granting summary judgment in favor of Edgar Johnson (“Edgar”),
Everette W. Johnson, Jr. (“Everette”), and New Red Mountain Missionary Baptist
Church, Inc. (the “Church”) (together “defendants”). Upon review, we affirm.
GLENN V. JOHNSON
Opinion of the Court
I. Background
At all times relevant to this appeal, the Church was a nonprofit corporate
entity operating as a church in Durham, Edgar was a member of the Church and
Chairman of the Board of Trustees, Everette was a member of the Church and
Chairman of the Board of Deacons, and plaintiff was a member of the church.
Plaintiff also served as the treasurer of the Church and was a member of the Board
of Trustees. It was disagreements between defendants and plaintiff while he was
treasurer that allegedly resulted in harm to plaintiff and caused plaintiff to initiate
this action against defendants.
That contentious relationship is summarized as follows: The Church bylaws
require the Board of Trustees to obtain an audit annually. Edgar proposed an audit
at the quarterly Church conference in July 2012 and the proposal was approved by
the Church body. Yet, over plaintiffs’ objection, that vote of approval was later
rescinded at the quarterly Church conference in October 2012 after concerns were
raised over the cost of an audit. Also over plaintiff’s objection, Edgar then moved to
have a less costly “compilation” of the Church’s financial records completed. After
Edgar’s motion carried at the October 2012 conference, in November 2012, Edgar
requested that plaintiff write a check for a $250 retainer for the accountant who
would perform the compilation. Plaintiff refused to do so. Aware of Edgar’s request
in November 2012, in early December 2012, the Board of Deacons, chaired by
Everette, sent a letter to plaintiff requesting that he write the retainer check.
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Plaintiff again refused to do so and did not respond. As a result of plaintiff’s repeated
refusal, the Board of Deacons sent plaintiff another letter in early January 2013
requesting that plaintiff meet with the Board of Deacons to discuss the matter.
Plaintiff, however, did not attend the meeting. At the quarterly Church conference
in January 2013, the Board of Deacons then read and presented a letter to the Church
body asking for plaintiff’s resignation from the position of treasurer. Plaintiff, who
was surprised by the request, then stood up in front of the Church body, handed over
his keys, and renounced further responsibilities as treasurer. Since that time,
plaintiff has sought on numerous occasions for the Church to clarify the reasons the
Board of Deacons requested his resignation, but defendants never did so to the
satisfaction of plaintiff.
Based on these facts, plaintiff asserted the following claims for relief in the
complaint against defendants filed on 20 December 2013
(1) Injunctive relief to enjoin the Church from “conducting any financial
transactions by the treasurer until such time as it has legally
replaced plaintiff as treasurer following the bylaws and established
church procedure[]” and to enjoin the individual defendants from “in
any way retaliating against plaintiff, or defaming plaintiff[.]”
(2) Libel and/or slander per se because “[t]he acts of defendants . . . have
been committed with malice and intent to cause plaintiff to suffer
humiliation and damage his reputation within the church
community. They have been defamatory per se, constituting
publications by the defendants to third persons which, when
considered alone . . . untruthfully charge that plaintiff has committed
wrongdoing that amounts to a crime or otherwise has subjected
plaintiff to ridicule, contempt, or disgrace in his church community.”
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(3) Libel and/or slander per quod because “defendants’ actions have
constituted publications by defendants of statements to third parties
which, when considered with innuendo, colloquium, and explanatory
circumstances, have become defamatory, causing plaintiff to suffer
ridicule, contempt, or disgrace, and further causing special damages
. . . .”
(4) Negligent infliction of emotional distress (“NIED”) in that
“defendants negligently engaged in the . . . wrongful conduct. It was
reasonably foreseeable that said conduct would cause the plaintiff
severe emotional distress, and the conduct did in fact cause the
plaintiff severe emotional distress, necessitating professional
treatment being rendered to plaintiff . . . .”
(5) Intentional infliction of emotional distress (“IIED”) in that the
“conduct of defendants was extreme and outrageous, intended to
cause severe emotional distress, or committed with a reckless
indifference to the likelihood that such conduct would cause severe
emotional distress, and which did cause severe emotional distress to
the plaintiff.”
Defendant further alleged grounds existed to justify awards of compensatory, special,
and punitive damages.
On 24 February 2014, the Church filed a motion to dismiss and answer and
Edgar and Everette filed a separate joint motion to dismiss and answer. In response,
plaintiff filed an affidavit on 7 April 2014. Plaintiff’s affidavit reasserted the factual
bases of his claims and included copies of the Church constitution and bylaws, letters
to him from the Board of Deacons, and documentation of Church meetings as
attachments to support his claims.
Following a 7 April 2014 hearing in Orange County Superior Court on
defendants’ motions to dismiss, on 29 April 2014, Judge R. Allen Baddour, Jr., filed
an order granting defendants’ motions to dismiss in part after determining that
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Opinion of the Court
plaintiff “failed to state claims for . . . (1) [l]ibel and slander per se against all
defendants; and (2) [l]ibel and slander per quod against defendants Everette . . . and
[the Church], to the extent that such claim(s) are founded upon statements made by
. . . Everette . . . .” Thus, the judge dismissed those claims with prejudice and allowed
plaintiff’s other claims to proceed.
Defendants then filed motions to exclude expert testimony and for summary
judgment on the remaining claims on 9 January 2015. In support of the summary
judgment motions, defendants submitted numerous depositions with exhibits for the
trial court’s consideration. Following a 9 February 2015 hearing on defendants’
motions for summary judgment, on 24 February 2015, Judge Elaine M. O’Neal
Bushfan filed an order granting summary judgment in favor of defendants.
Specifically, the trial court “determined that there are no genuine issues of material
fact and that defendants are entitled to judgment as a matter of law as to all of
plaintiff’s remaining claims for [NIED], [IIED], slander per quod, injunctive relief
and punitive damages.”
Plaintiff filed notice of appeal on 18 March 2015 from the 29 April 2014 order
dismissing some of his claims and from the 24 February 2015 summary judgment
order.
II. Discussion
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Opinion of the Court
On appeal, plaintiff contends the trial court erred in entering summary
judgment in favor of defendants on his claims for NIED, IIED, and libel and/or
slander per quod. We address plaintiff’s arguments in order.
As noted above, plaintiff also appealed from the 29 April 2014 order dismissing
his libel and slander per se claims against all defendants and his libel and slander
per quod claims against Everette and the Church. Plaintiff, however, has not raised
any issues in his brief on appeal concerning the dismissal order and has abandoned
any issues concerning the dismissed claims. See N.C. R. App. P. 28(b)(6) (2016)
(“Issues not presented in a party's brief, or in support of which no reason or argument
is stated, will be taken as abandoned.”). Plaintiff has also abandoned any issues
concerning summary judgment on his claims for injunctive relief and punitive
damages by failing to raise arguments on appeal.
Standard of Review
“Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that ‘there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting
Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
In order to prevail on a motion for summary judgment, a
moving party meets its burden by proving that an essential
element of the opposing party's claim is non-existent, or by
showing through discovery that the opposing party cannot
produce evidence to support an essential element of his
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Opinion of the Court
claim or cannot surmount an affirmative defense which
would bar the claim. Once the moving party meets this
burden, the burden is then on the opposing party to show
that a genuine issue of material fact exists. . . . If the
opponent fails to forecast such evidence, then the trial
court's entry of summary judgment is proper.
Finley Forest Condo. Ass’n v. Perry, 163 N.C. App. 735, 738-39, 594 S.E.2d 227, 230
(2004) (internal quotation marks and citations omitted).
Emotional Distress Claims
Plaintiff first contends the trial court erred by granting defendants’ motions
for summary judgment as to his NIED and IIED claims. Plaintiff claims he has raised
genuine issues of material fact as to the essential elements of both claims.
NIED
We first address plaintiff’s argument with respect to his claim for NIED.
Our cases have established that 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 the plaintiff severe emotional distress
(often referred to as “mental anguish”), and (3) the conduct
did in fact cause the plaintiff severe emotional distress.
Although an allegation of ordinary negligence will suffice,
a plaintiff must also allege that severe emotional distress
was the foreseeable and proximate result of such
negligence in order to state a claim; mere temporary fright,
disappointment or regret will not suffice. In this context,
the term “severe emotional distress” means any emotional
or mental disorder, such as, for example, neurosis,
psychosis, chronic depression, phobia, or any other type of
severe and disabling emotional or mental condition which
may be generally recognized and diagnosed by
professionals trained to do so.
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Opinion of the Court
Johnson v. Ruark Obstetrics and Gynecology Associates, P.A., 327 N.C. 283, 304, 395
S.E.2d 85, 97 (1990) (internal citations omitted). Thus, summary judgment in favor
of defendants on the NIED claim is proper where the evidence does not establish
negligence by defendants or establishes that the alleged negligent conduct was not
the foreseeable and proximate cause of plaintiff’s severe emotional distress. Robblee
v. Budd Services, Inc., 136 N.C. App. 793, 795, 525 S.E.2d 847, 849, disc. review
denied, 352 N.C. 676, 545 S.E.2d 228 (2000).
Now on appeal, plaintiff asserts he has suffered severe emotional distress that
was both a foreseeable result of and proximately caused by defendants’ negligent
conduct. Plaintiff cites various cases and points to evidence tending to show that
there was sufficient evidence of severe emotional distress for the questions of
foreseeability and proximate cause to be determined by a jury.
Upon review of the record, it is clear that there was evidence in the record from
which the jury could determine plaintiff had suffered severe emotional distress.
Furthermore, plaintiff is correct that foreseeability and proximate cause are
generally questions for the jury. See Acosta v. Byrum, 180 N.C. App. 562, 568, 638
S.E.2d 246, 251 (2006) (“Questions of proximate cause and foreseeability are
questions of fact to be decided by the jury.”). Plaintiff’s arguments on appeal,
however, only address the second and third elements of NIED. Plaintiff never clearly
identifies in what way defendants’ conduct was negligent.
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GLENN V. JOHNSON
Opinion of the Court
It is clear from the elements listed above that “[a] claim of negligent infliction
of emotional distress requires proof of negligent conduct.” Pittman v. Hyatt Coin &
Gun, Inc., 224 N.C. App. 326, 330, 735 S.E.2d 856, 859 (2012). In reviewing a trial
court’s grant of a motion to dismiss a NIED claim, this Court has explained that “[t]he
first element of an NIED claim requires allegations that the defendant failed to
exercise due care in the performance of some legal duty owed to [the] plaintiff under
the circumstances[.]” Horne v. Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142,
148, 746 S.E.2d 13, 19 (2013) (internal quotation marks and citation omitted).
“Generally, where the facts are undisputed, [t]he issue of whether a duty exists is a
question of law for the court.” Finley Forest Condo. Ass’n, 163 N.C. App. at 739, 594
S.E.2d at 230 (internal quotation marks and citation omitted).
In Horne, the plaintiff’s failure to allege such a legal duty owed by the
defendant to the plaintiff was fatal to the plaintiff’s NIED claim. Horne, 228 N.C.
App. at 149, 746 S.E.2d at 19. In addition to failing to allege a legal duty, this Court
also explained in Horne that “[b]eyond the conclusory assertion that ‘[the defendant]
negligently engaged in the aforementioned conduct against [the] plaintiff,’ [the]
plaintiff’s complaint recounts only intentional conduct on the part of [the defendant].”
Id. (alterations in original omitted) (emphasis in original). As a result, the plaintiff
in Horne “failed to properly plead an element essential to her NIED claim[]” because
“[a]llegations of intentional conduct, . . . even when construed liberally on a motion
to dismiss, cannot satisfy the negligence element of an NIED claim.” Id.
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Opinion of the Court
Although defendants did not move to dismiss plaintiff’s NIED claim in the
present case, Horne is instructive in our review of the trial court’s grant of defendants’
motions for summary judgment.
The evidence in this case is that plaintiff was a member of the Church and
served as treasurer and a member of the Board of Trustees. Edgar and Everette were
also members of the Church and members of church boards. As in Horne, plaintiff
does not assert that defendants owed him a legal duty and fails to cite any authority
showing that a legal duty exists between church members. The only conceivable duty
owed by defendants to plaintiff was to act in accordance with the bylaws of the
Church, but it is clear from the record that any conduct by the individual defendants
in contravention to the bylaws was intentional, rather than negligent.
In arguing the trial court erred in granting summary judgment for defendants
on the NIED claim, plaintiff glosses over the first element of NIED, stating that “[he]
satisfie[d] the first two elements by offering evidence showing that it was reasonably
foreseeable that such negligence would proximately cause [his] severe emotional
distress.” Yet, as noted above, plaintiff never identifies defendants’ negligent
conduct. Even in his NIED claim in the complaint, plaintiff merely incorporates the
factual allegations and asserts as follows:
28. The defendants negligently engaged in the above
wrongful conduct. It was reasonably foreseeable that said
conduct would cause the plaintiff severe emotional
distress, and the conduct did in fact cause the plaintiff
severe emotional distress, necessitating professional
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Opinion of the Court
treatment being rendered to plaintiff . . . .
We hold these conclusory allegations and the evidence presented are insufficient to
avoid summary judgment.
Where defendant failed to allege a duty owed by defendants and there is no
evidence of negligent acts by defendants, plaintiff has failed to establish a prima facie
case of NIED and summary judgment was proper. See Smith-Price v. Charter
Behavioral Health Sys., 164 N.C. App. 349, 354, 595 S.E.2d 778, 782 (2004) (Summary
judgment was proper because an essential element of NIED was unsupported by the
evidence where the plaintiff presented no evidence that the defendant owed a duty of
care or that there was a breach such a duty.) Thus, we hold the trial court did not
err in entering summary judgment in favor of defendants on plaintiff’s NIED claim.
IIED
We next address plaintiff’s argument regarding to his claim for IIED. “A claim
for [IIED] exists when a defendant's conduct exceeds all bounds usually tolerated by
decent society and the conduct causes mental distress of a very serious kind.” Watson
v. Dixon, 130 N.C. App. 47, 52, 502 S.E.2d 15, 19 (1998) (internal quotation marks
and citations omitted). Broken down into its elements, IIED consists of: “(1) extreme
and outrageous conduct, (2) which is intended to cause and does cause (3) severe
emotional distress to another. 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).
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GLENN V. JOHNSON
Opinion of the Court
Although plaintiff acknowledges that, “[a]s to the first element, a
determination at summary judgment of whether ‘alleged acts may be reasonably
regarded as extreme and outrageous is initially a question of law[,]’ ” Phillips v. Rest.
Mgmt. of Carolina, L.P., 146 N.C. App. 203, 213, 552 S.E.2d 686, 693 (2001) (quoting
Shreve v. Duke Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987)), disc.
rev. denied, 355 N.C. 214, 560 S.E.2d 132 (2002), plaintiff asserts the trial court in
this case could not determine, as a matter of law, that defendants’ conduct did not
rise to the level of “extreme and outrageous” and, therefore, the issue should have
been determined by the jury, along with the issues of intent, or reckless indifference,
and severe emotional distress. See also Johnson v. Bollinger, 86 N.C. App. 1, 6, 356
S.E.2d 378, 381-82 (1987) (“[T]his Court held the initial determination of whether
conduct is extreme and outrageous is a question of law for the court: If the court
determines that it may reasonably be so regarded, then it is for the jury to decide
whether, under the facts of a particular case, defendants' conduct . . . was in fact
extreme and outrageous.”) (internal quotation marks, citation, and emphasis in
original omitted). Consequently, plaintiff concludes summary judgment on his IIED
claim was improper. In support of his arguments, defendant relies solely on Phillips,
in which the plaintiff alleged IIED after consuming food that had been spit on.
Phillips, 146 N.C. App. at 207, 552 S.E.2d at 689. On appeal of the trial court’s grant
of summary judgment in favor of the restaurant owner/operator, this Court agreed
that the trial court erred in granting summary judgment in favor of the
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Opinion of the Court
owner/operator. Id. at 213, 552 S.E.2d at 693. Recognizing that other states had
made similar conduct criminal or determined similar conduct toward prisoners was
unconstitutional, this Court “[could not] say, as a matter of law, that a food preparer
surreptitiously spitting in food intended for a patron’s consumption [did] not rise to
the level of ‘extreme and outrageous.’ ” Id. We are not convinced that the present
case is comparable to Phillips.
This Court has explained that
[c]onduct 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 behavior must be more than mere insults,
indignities, threats, and plaintiffs must necessarily be
expected and required to be hardened to a certain amount
of rough language, and to occasional acts that are definitely
inconsiderate or unkind.
Smith-Price, 164 N.C. App. at 354, 595 S.E.2d at 782 (internal quotation marks,
citations, and alterations in original omitted).
In this case, plaintiff asserts that the same conduct that was alleged to be the
basis of his NIED claim is intentional, extreme, and outrageous to support a claim of
IIED. Specifically, after incorporating by reference the factual allegations, plaintiff
asserted as follows in his complaint:
31. The above-described conduct of defendants was
extreme and outrageous, intended to cause severe
emotional distress, or committed with a reckless
indifference to the likelihood that such conduct would
cause severe emotional distress, and which did cause
severe emotional distress to the plaintiff.
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Opinion of the Court
The conduct by defendants alleged to be extreme and outrageous includes the
following: requesting that plaintiff, as treasurer of the Church, write a check for a
compilation although plaintiff was against conducting a compilation instead of a full
audit; requesting through letters that plaintiff write a check and meet with the Board
of Deacons to discuss his refusal to write a check; requesting plaintiff’s resignation
through a letter read and presented to the Church body at the quarterly conference;
ignoring, refusing, or laughing at efforts by plaintiff for reconciliation or mediation.
These acts by defendants are simply not comparable to spitting in food and we
now hold that, as a matter of law, plaintiff has failed to allege or present evidence
that defendants’ conduct in this case rose to the level of extreme and outrageous. As
a result, the trial court did not err in entering summary judgment in favor of
defendant on plaintiff’s IIED claim.
Defamation Claims
In the last issue on appeal, plaintiff contends the trial court erred in granting
summary judgment as to his claims for libel and slander per quod. We disagree.
We begin our analysis of this final issue by noting that it not entirely clear
what ruling by the trial court is being challenged. In his brief on appeal, plaintiff
asserts that “Judge Bushfan allowed dismissal of all claims, including per quod
defamation claims[,]” and contends that “Judge Bushfan, ruling on Rule 56 motions,
should have denied those motions as to defamation per quod, because she had actual
evidence before her which went beyond the mere allegations of the complaint and
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Opinion of the Court
created genuine issues of material fact as to per quod defamation among all three
defendants.” However, Judge Bushfan did not dismiss any claims, but instead
granted summary judgment in favor of defendants. Moreover, the only defamation
claims addressed in the summary judgment order were plaintiff’s libel and slander
per quod claims against Edgar and the Church, as the other defamation claims were
previously dismissed by Judge Baddour. It is the grant of summary judgment on the
libel and slander per quod claims against Edgar and the Church that we now review
on appeal.
Libel and slander are both forms of defamation – libel is written and slander
is oral. Aycock v. Padgett, 134 N.C. App. 164, 165, 516 S.E.2d 907, 909 (1999). “ ‘To
be actionable, a defamatory statement must be false and must be communicated to a
person or persons other than the person defamed.’ ” Daniels v. Metro Magazine
Holding Co., L.L.C., 179 N.C. App. 533, 538-39, 634 S.E.2d 586, 590 (2006) (quoting
Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993)), appeal
dismissed and disc. rev. denied, 361 N.C. 692, 654 S.E.2d 251 (2007); see also
Desmond v. News and Observer Pub. Co., __ N.C. App. __, __, 772 S.E.2d 128, 135,
appeal dismissed and disc. rev. denied, __ N.C. __, 776 S.E.2d 195 (2015).
Where the injurious character of the words do not appear
on their face as a matter of general acceptance, but only in
consequence of extrinsic, explanatory facts showing their
injurious effect, such utterance is actionable only per quod.
Where the words spoken or written are actionable only per
quod, the injurious character of the words and some special
damage must be pleaded and proved.
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Opinion of the Court
Beane v. Weiman Co., 5 N.C. App. 276, 278, 168 S.E.2d 236, 237-38 (1969).
In this case, it is not clear what plaintiff contends to be libelous or slanderous.
Plaintiff identifies both the letter from the Board of Deacons requesting his
resignation that was read and presented at the Church conference and prior
statements by Edgar concerning whether plaintiff had used church funds to purchase
a home and an automobile. Plaintiff then asserts that the sudden demand that he
resign after he refused to write a check fueled innuendo and speculation that he must
have done something wrong. Plaintiff further asserts that any misperception was
magnified by the refusal of the Board of Deacons and Board of Trustees to explain
their actions and to dispel any misunderstandings about plaintiff’s resignation.
Yet, upon review of the record, there is no evidence of any conduct that could
be construed as libel or slander per quod. First, concerning Edgar’s prior questions
insinuating plaintiff’s misuse of church funds allegedly made in 2009 or early 2010,
there is no evidence that the statements were made to anyone other than plaintiff.
In fact, plaintiff indicated Edgar’s statements were made directly to him.
Furthermore, any defamation claim based on those statements in 2009 or early 2010
is now barred by the statute of limitations. See N.C. Gen. Stat. § 1-54(3) (2015)
(providing a one year statute of limitations for libel and slander). Second, concerning
the Board of Deacons’ letter requesting plaintiff’s resignation, Edgar was not a
member of the Board of Deacons and plaintiff has failed to identify any false
statement in the letter.
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Opinion of the Court
As the individual defendants assert, plaintiff’s “primary argument seems to be
that the letter, [or defendants in general,] did not do enough to prevent others from
speculating that [p]laintiff may have done something wrong.” But where there is no
evidence of actionable defamation in the record, the trial court did not err in granting
summary judgment in favor of defendants on the claims of libel and slander per quod
against Edgar and the Church.
III. Conclusion
For the reasons discussed above, we hold the trial court did not err in entering
summary judgment on plaintiffs’ claims for NIED, IIED, or defamation per quod.
AFFIRMED.
Judges DIETZ and TYSON concur.
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