Reis v. Hoots , 131 N.C. App. 721 ( 1998 )

Judge Greene

concurring.

I concur with the majority opinion, but write separately on the issue of damages in order to emphasize that it is rarely the case that damages for mental anguish are recoverable under a breach of contract theory. See, e.g., Lamm v. Shingleton, 231 N.C. 10, 14, 55 S.E.2d 810, 813 (1949). This is so because “contracts are usually commercial in nature,” id., and “fpjecuniary interests are paramount," Stanback v. Stanback, 297 N.C. 181, 192, 254 S.E.2d 611, 619 (1979), disap-, proved of on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981) (disapproving Stanback’s statements regarding requirements for the tort of intentional infliction of emotional distress). But where the contract is not one for profit and the matters contracted for directly relate to “matters of dignity, mental concern or solicitude, or the sensibilities of the party to whom the duty is owed,” and the contract directly involves interests “recognized by all as involving great probability of resulting mental anguish if not respected, . . . [then] mental anguish damages are a natural and probable consequence of breach, and it can reasonably be said that such damages were within the contemplation of the parties at the time they contracted.” Stanback, 297 N.C. at 194, 254 S.E.2d at 620. It is also important to note that expert medical testimony is not always necessary to prove mental anguish. McKnight v. Simpson’s Beauty Supply, Inc., 86 N.C. App. 451, 454, 358 S.E.2d 107, 109 (1987) (noting that evidence that plaintiff was “shocked” and “upset” following defendant’s actions was sufficient to show emotional distress, but expert medical testimony is necessary if the injury claimed is “an unusual emotional state, not within the common knowledge and experience of laymen, that in itself requires medical diagnosis”); Lamm, 231 N.C. at 12, 55 S.E.2d at 811 (noting that plaintiffs testimony that defendants’ breach of contract “caused her considerable shock and made her extremely nervous as a result of which she became a nervous wreck . . . [and that it] made her so nervous she could hardly stand up” was sufficient to show emotional distress); McDaniel v. Bass-Smith Funeral Home, Inc., 80 N.C. App. 629, 633, 343 S.E.2d 228, 231 (1986) (noting that directed verdict should not have been granted dismissing plaintiff’s claim for emotional distress where she testified that as a result of defendant’s breach of contract she “became extremely upset. . . nervous and distraught. . . [and] physically ill”).

In this case, the separation agreement entered by the parties contained a clause which stated:

NO MOLESTATION. That each party shall be free from interference and control, direct or indirect, by the other. Neither party shall molest or harass the other, and further, that neither shall attempt by word or act to influence the life of the other, nor compel or attempt to compel the other, to associate, cohabit or dwell with the other for any reason whatsoever.

This agreement is not one concerned with trade, commerce, or profit; the benefits conferred pursuant to this section of the separation agreement are “other than pecuniary”; and the benefits contracted for in this section of the agreement “relate directly to matters of dignity, mental concern or solicitude, or the sensibilities of the party to whom the duty is owed” which directly involve “interests and emotions recognized by all as involving great probability of resulting mental anguish if not respected.” See Johnson v. Ruark Obstetrics, 327 N.C. 283, 301, 395 S.E.2d 85, 96 (quoting Stanback, 297 N.C. at 194, 254 S.E.2d at 620), reh’g denied, 327 N.C. 644, 399 S.E.2d 133 (1990). The non-molestation clause of the parties’ separation agreement is therefore one of those rare contracts which allows recovery for mental anguish.

Defendant’s testimony presented evidence from which the jury could find that plaintiff had breached the non-molestation clause of the separation agreement by repeatedly having lawsuits filed against defendant for the purpose of harassing her and by having defendant arrested for criminal trespass of the marital residence (which charge was later dismissed). Defendant’s children were present at the time of her arrest, and “were crying, . . . were very upset . . . [and were] embarrassed.” Defendant testified that plaintiff schemed to successfully delay her receipt of her share of the proceeds from the subsequent sale of the marital home for approximately two years. Defendant also presented evidence from which the jury could find that plaintiff had stolen her mail for a period of over eighteen months following their separation. An investigator who testified that he had caught plaintiff stealing defendant’s mail stated that defendant was “irate and upset” over the situation. Defendant further testified that plaintiffs breach of the non-molestation clause “was upsetting me and tearing the kids up.” Defendant testified that the effect of plaintiff’s breach of the non-molestation clause had caused “constant litigation, turmoil and upset since he and I separated.” She further testified that “[t]he children have been upset. It’s been one day to the next wondering what is he going to pull next, what is he going to do next, what is he going to put us through next and it’s been that way for seven years.” Defendant testified that plaintiff’s breach of the separation agreement had affected her health, and the health of her children, resulting in the hospitalization of one child for acute colitis caused by extreme stress. This evidence is sufficient to show that defendant suffered mental anguish as a result of plaintiff’s breach of the non-molestation clause of the parties’ separation agreement. Accordingly, the trial court properly denied plaintiff’s motion for directed verdict.