Radcliffe v. Avenel Homeowners Ass'n, Inc.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-884
Filed: 2 August 2016
New Hanover County, No. 13 CVS 1073
VIRGINIA RADCLIFFE, Plaintiff,
v.
AVENEL HOMEOWNERS ASSOCIATION, INC., CARMELO (TONY)
BUCCAFURRI, STEPHEN MURRAY, THOMAS DINERO, DAVID HULL,
RICHARD PROGELHOF, and RON ZANZARELLA, Defendants.
Appeal by plaintiff and cross-appeal by defendants from orders entered 21
August 2014 and 4 February 2015 by Judge D. Jack Hooks, Jr. in New Hanover
County Superior Court. Heard in the Court of Appeals 13 January 2016.
Hester, Grady & Hester, P.L.L.C., by H. Clifton Hester, for Virginia Radcliffe.
StephensonLaw, LLP, by James B. Stephenson II and Philip T. Gray, for Avenel
Homeowners Association, Inc.
Ennis, Baynard, Morton, & Medlin, PA, by Donald W. Ennis, for Carmelo
Buccafurri and Stephen Murray.
Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Clay Allen Collier, for
Thomas Dinero.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Reid Russell, and Brown,
Crump, Vanore & Tierney, L.L.P., by Derek M. Crump, for David Hull.
Anderson, Johnson, Lawrence, & Butler, LLP, by Stacey E. Tally, for Richard
Progelhof.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Jeffrey H. Blackwell, for Ron
Zanzarella.
DAVIS, Judge.
RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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.
Factual and Procedural Background
I. Allegations of Plaintiff’s Second Amended Complaint
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Opinion of the Court
We have summarized below the allegations of Plaintiff’s second amended
complaint,1 which we take as true in reviewing the trial court’s Rule 12(b)(6) orders.
Feltman v. City of Wilson, __ N.C. App. __, __, 767 S.E.2d 615, 617 (2014).
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 the spring of 2003, Defendants allegedly embarked on a
campaign to force Plaintiff to leave Avenel and “engaged in a systemic pattern of
1 Because of the numerous incidents of harassment described throughout Plaintiff’s second
amended complaint, we reference only a portion of them here as representative samples of her
allegations. At various times throughout this opinion, we discuss other incidents alleged by Plaintiff.
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Opinion of the Court
harassment, threats, violence, and intimidation” designed to induce Plaintiff to move
out of the subdivision.
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
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Opinion of the Court
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
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Opinion of the Court
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 filed false charges
against Plaintiff for trespass.
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.”
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Opinion of the Court
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 2005.2
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.”
II. Prior Lawsuits Brought by Plaintiff or on Her Behalf
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
2 An ordination certification is a prerequisite to becoming an ordained minister in the UMC.
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Opinion of the Court
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.
III. The Present Lawsuit
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,
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Opinion of the Court
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 claims against
Buccafurri and Zanzarella for the incident occurring at the gazebo on 29 May 2004
where they yelled obscenities at Plaintiff and her friend and followed them home
while continuing to verbally berate them (“the First Gazebo Incident”); (7) an assault
claim against Murray regarding the incident at the pier on 8 April 2004 during which
he physically beat her while simultaneously verbally berating her (“the Pier
Incident”); (8) a battery claim against Murray for the Pier Incident; (9) assault claims
against Hull, Zanzarella, and Progelhof for the incident at the gazebo on 23 June 2004
during which they prevented her from leaving, requiring her to call 911 for assistance
(“the Second Gazebo Incident”); (10) false imprisonment claims against Hull,
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Opinion of the Court
Zanzarella, and Progelhof for the Second Gazebo Incident; (11) tortious interference
with prospective economic advantage claims against all Defendants for interfering
with her potential employment contract with the UMC; (12) tortious interference with
prospective economic advantage claims against the Association, Buccafurri, Hull,
Progelhof, and Zanzarella based on their interference with her potential employment
with the Boys and Girls Home; (13) a malicious prosecution claim against Murray
due to his filing of criminal charges against Plaintiff for assault and battery shortly
after the Pier Incident; (14) a malicious prosecution claim against Progelhof based on
his filing of a communicating threats charge against her on 24 June 2004; (15) a
malicious prosecution claim against Zanzarella in connection with his filing on 24
June 2004 of a communicating threats charge against her; (16) a malicious
prosecution claim against Buccafurri due to his filing of a trespass claim against her
on 24 June 2004; (17) NIED claims against all Defendants; and (18) a claim under
N.C. Gen. Stat. § 99D-1 against all Defendants alleging a violation of her civil rights.
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.
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Opinion of the Court
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.
Analysis
I. Appellate Jurisdiction
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
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Opinion of the Court
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.
It is undisputed that the present appeal is interlocutory. See Mecklenburg Cty.
v. Simply Fashion Stores, Ltd., 208 N.C. App. 664, 667, 704 S.E.2d 48, 51 (2010) (“An
order is interlocutory when it does not dispose of the entire case but instead, leaves
outstanding issues for further action at the trial level.”), appeal dismissed and disc.
review denied, 365 N.C. 187, 707 S.E.2d 231 (2011). Generally, there is no right of
immediate appeal from an interlocutory order. Goldston v. Am. Motors Corp., 326
N.C. 723, 725, 392 S.E.2d 735, 736 (1990). “An interlocutory order may be appealed,
however, if the order implicates a substantial right of the appellant that would be lost
if the order was not reviewed prior to the issuance of a final judgment.”3 Keesee v.
3 An interlocutory order may also be appealed where the trial court certifies the order for
immediate appeal pursuant to Rule 54(b). See Tands, Inc. v. Coastal Plains Realty, Inc., 201 N.C. App.
139, 142, 686 S.E.2d 164, 166 (2009) (“[A]n interlocutory order can be immediately appealed if the
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Opinion of the Court
Hamilton, __ N.C. App. __, __, 762 S.E.2d 246, 249 (2014). It is the appealing party’s
burden to establish that a substantial right would be jeopardized unless an
immediate appeal is allowed. Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d
259, 262 (2001).
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, __ N.C. App. __, __, 727 S.E.2d 311, 314
(2012) (citation and quotation marks omitted).
To demonstrate that a second trial will affect a substantial
right, [the appellant] must show not only that one claim
has been finally determined and others remain which have
not yet been determined, but that (1) the same factual
issues would be present in both trials and (2) the possibility
of inconsistent verdicts on those issues exists.
Id. at __, 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
order is final as to some but not all of the claims and the trial court certifies there is no just reason to
delay the appeal pursuant to North Carolina Rules of Civil Procedure, Rule 54(b).” (citation, brackets,
and ellipses omitted)). However, in the present case, neither of the trial court’s orders contain any
such certification.
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Opinion of the Court
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
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Opinion of the Court
the North Carolina Rules of Appellate Procedure and treat Plaintiff’s appeal of the
trial court’s 21 August 2014 order as a petition for certiorari. See Carolina Bank v.
Chatham Station, Inc., 186 N.C. App. 424, 428, 651 S.E.2d 386, 389 (2007) (“[B]ecause
the case sub judice is one of those exceptional cases where judicial economy will be
served by reviewing the interlocutory order, we will treat the appeal as a petition for
a writ of certiorari and consider the order on its merits.”); In re I.S., 170 N.C. App.
78, 84, 611 S.E.2d 467, 471 (2005) (“Failure to comply with the requirements of Rule
3 of our Rules of Appellate Procedure requires the dismissal of the appeal as this rule
is jurisdictional. However, under appropriate circumstances this Court is authorized
to issue a writ of certiorari to review the orders of a trial tribunal when the right of
appeal has been lost due to failure to take timely action. This Court can exercise its
discretion and treat an appellant’s appeal as a petition for a writ of certiorari.”
(internal citations omitted)).
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.
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Opinion of the Court
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.
II. Plaintiff’s 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.4 On appeal, Plaintiff contends that the trial court’s
dismissal of her remaining claims constituted error.
The standard of review of an order granting a Rule
12(b)(6) motion is whether the complaint states a claim for
which relief can be granted under some legal theory when
the complaint is liberally construed and all the allegations
included therein are taken as true. On appeal, we review
the pleadings de novo to determine their legal sufficiency
and to determine whether the trial court’s ruling on the
motion to dismiss was correct.
4 The question of whether the trial court properly denied Defendants’ motions to dismiss these
claims pursuant to Rule 12(b)(6) is not before us in this appeal.
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Opinion of the Court
Feltman, __ 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).
A. Applicability of Statute of Limitations to Plaintiff’s Claims
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.
All Defendants asserted the statute of limitations as an affirmative defense in
their answers. It is well established that
[o]nce a defendant has properly [pled] the statute of
limitations, the burden is then placed upon the plaintiff to
offer a forecast of evidence showing that the action was
instituted within the permissible period after the accrual
of the cause of action.
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Opinion of the Court
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
doctrine as an exception to the general rule that a claim
accrues when the right to maintain a suit arises. For the
continuing wrong doctrine to apply, the plaintiff must show
a continuing violation by the defendant that is occasioned
by continual unlawful acts, not by continual ill effects from
an original violation. Courts view continuing violations as
falling into two narrow categories. One category arises
when there has been a long-standing policy of
discrimination. In the second continuing violation
category, there is a continually recurring violation.
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).5 We do not believe that either of these categories
applies here.
5 “Under the continuing wrong doctrine, the statute of limitations does not start running until
the violative act ceases.” Marzec v. Nye, 203 N.C. App. 88, 94, 690 S.E.2d 537, 542 (2010) (citation and
quotation marks omitted).
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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).
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Opinion of the Court
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 federal lawsuit arising out of the same nucleus of facts.
According to 28 U.S.C. § 1367(d), the period of limitations
for any supplemental state law claim asserted in a federal
action . . . shall be tolled while the claim is pending and for
a period of 30 days after it is dismissed unless State law
provides for a longer tolling period. As a result of the fact
that North Carolina does not provide for a longer tolling
period than the thirty day interval specified in 28 U.S.C. §
1367(d), this Court has interpreted 28 U.S.C. § 1367(d) to
provide that, in the event that the statute of limitations
applicable to a plaintiff’s state law claim expires while a
federal action in which that claim has been asserted is
pending, the plaintiff has thirty days following the
dismissal of the federal action to reassert his or her state
law claims in the General Court of Justice.
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Opinion of the Court
Glynne v. Wilson Med. Ctr., __ N.C. App. __, __, 762 S.E.2d 645, 649 (2014) (internal
citations, quotation marks, brackets, and ellipses omitted).6
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.
6Here, Judge Fox dismissed Plaintiff’s state law claims without prejudice on 12 February 2013
and Plaintiff filed her initial complaint in the present action on 14 March 2013 — exactly 30 days later.
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Opinion of the Court
On appeal, we affirmed the trial court’s ruling, holding that
the claims set forth in plaintiff’s federal and state actions
arose from the same event, his discharge by [the
defendant]. However, the claim of wrongful discharge
alleged in the state action and the federal statutory and
constitutional claims alleged in the federal action each
constitute independent causes of action with unique
elements which must be proven by plaintiff, and [the
defendant] thus was not placed on notice by plaintiff’s
federal action that it would be asked to defend plaintiff’s
state wrongful discharge claim within the time required by
the statute of limitations. In short, plaintiff’s state action
thus was not based on the same claims alleged in his
federal action. . . . [Therefore, the p]laintiff’s state action .
. . was not timely filed, and the trial court properly granted
summary judgment in favor of [the defendant].
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
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Opinion of the Court
statute of limitations, only claims for relief based on acts that occurred on or after 26
March 2004 would not be time barred.7
B. Plaintiff’s 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.
1. Claims under N.C. Gen. Stat. § 99D-1
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., __ N.C. App. __, __, 762 S.E.2d 865, 871 (2014). The party alleging
collateral estoppel must demonstrate
that the earlier suit resulted in a final judgment on the
merits, that the issue in question was identical to an issue
actually litigated and necessary to the judgment, and that
both the party asserting collateral estoppel and the party
against whom collateral estoppel is asserted were either
parties to the earlier suit or were in privity with parties.
7 As discussed throughout the remainder of this opinion, we conclude that the statute of
limitations does, in fact, bar a number of the claims Plaintiff has asserted in this action.
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Opinion of the Court
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:
(a) It is a violation of this Chapter if:
(1) Two or more persons, motivated by race, religion,
ethnicity, or gender, but whether or not acting under
color of law, conspire to interfere with the exercise
or enjoyment by any other person or persons of a
right secured by the Constitutions of the United
States or North Carolina, or of a right secured by a
law of the United States or North Carolina that
enforces, interprets, or impacts on a constitutional
right; and
(2) One or more persons engaged in such a
conspiracy use force, repeated harassment, violence,
physical harm to persons or property, or direct or
indirect threats of physical harm to persons or
property to commit an act in furtherance of the
object of the conspiracy; and
(3) The commission of an act described in
subdivision (2) interferes, or is an attempt to
interfere, with the exercise or enjoyment of a right,
described in subdivision (1), of another person.
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Opinion of the Court
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 this case, Plaintiff asserts direct evidence of
discrimination. However, for over a year before any of the
complained of behavior occurred, Plaintiff and her
neighbors tolerated, and in some instances were friendly
with, one another. Then, on or after December 2, 2002, the
relationships soured and the above-described feud ensued.
It is abundantly clear that much animosity existed
between Plaintiff and Defendants. Further, it may well be
that, because of their quarrel with Plaintiff, some
derogatory gender-specific, religious-specific, and
disability-specific comments were made by one or more
Defendants. However, the evidence contained in the record
demonstrates that these comments were made, not because
Defendants were intentionally discriminating against
women, Christians, or disabled persons, or retaliating
against Plaintiff for filing a discrimination claim, but
rather because they knew such comments would personally
offend Plaintiff. In this case, the prior amicable
relationships, the several individuals in Avenel similarly
situated to Plaintiff but not harassed, and the fact that
some Defendants, rather than Plaintiff, have since moved
from their homes, belie the contention of Plaintiff that the
actions of Defendants were motivated by illegal
discrimination or retaliation. As such, the Court finds that
Plaintiff’s evidence is insufficient for a reasonable jury to
conclude that the hostility was a product of genuine
discriminatory or retaliatory animus rather than the kind
of personality conflict that exists in neighborhoods across
the country. Accordingly, Plaintiff cannot prove the third
and fourth elements of her FHA claim. The Court will
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Opinion of the Court
therefore grant Defendants’ motions for summary
judgment with regard to Plaintiff’s claim under the FHA.
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.
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Opinion of the Court
In reversing the trial court, we held as follows:
In the instant case, the issue of whether defendants
intentionally discriminated against plaintiff was fully
litigated in the federal court. After reviewing all of the
evidence, the federal court found that plaintiff failed to
present any direct evidence of a purpose by defendants to
discriminate against plaintiff or circumstantial evidence of
sufficiently probative force to raise a genuine issue of
material fact. The federal court then granted defendants’
motion for summary judgment on plaintiff’s claim for racial
discrimination. We hold that the issue of discriminatory
intent by defendants was conclusively determined in the
federal court, and thus plaintiff is collaterally estopped
from re-litigating that issue in this action.
Plaintiff’s failure in federal court to establish
discriminatory intent by defendants also bars litigation of
his equal protection violation claim in state court. In order
to prevail upon an equal protection violation claim under
the North Carolina Constitution, the burden is upon the
complainant to show the intentional, purposeful
discrimination upon which he relies. As the federal court
has already conclusively ruled against plaintiff upon the
issue of discriminatory intent by defendants, collateral
estoppel prevents the plaintiff from proceeding on this
claim.
....
[T]he federal court ruled against plaintiff on the exact issue
that plaintiff now raises in state court. Plaintiff is
therefore collaterally estopped from seeking a state court
resolution on the issue of a causal connection between
plaintiff’s constitutionally protected activities and the
adverse employment action taken by defendants. Because
the lack of a causal connection is fatal to plaintiff’s claim
for retaliatory discharge, defendants are entitled to
summary judgment on this claim.
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Opinion of the Court
The issues of defendants’ discriminatory intent and
improper motivation were tried in the federal court after
full discovery; resolution of those issues was material and
necessary to the judgment in that court. The doctrine of
collateral estoppel therefore bars the re-litigation of these
issues in our state trial courts. Because plaintiff cannot, as
a matter of law, succeed on his claims, the trial court erred
when it refused to grant defendants’ motion for summary
judgment on plaintiff’s claims of racial discrimination,
equal protection violations, and retaliatory discharge.
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.
2. IIED 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
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Opinion of the Court
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).
a. The Association
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.
b. Buccafurri, Dinero, Hull, Progelhof, Zanzarella, and
Murray
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Opinion of the Court
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, and derision heaped
upon her by these Defendants — acts that at times spilled over into physical
confrontation and attack — lasting until June 2006. Her allegations in support of
her IIED claims include the following:
 Buccafurri, Murray, Dinero, Hull, Progelhof and Zanzarella habitually
threatened, harassed, and intimidated Plaintiff. Murray, Buccafurri,
Zanzarella, and Dinero shouted at Plaintiff that “she was a Christian B****
and a Christian C***” and “threatened [her] by saying [w]hat would Jesus do
if we screwed your Christian C***” and “what would Jesus do if we sodomized
you[?]”
 Murray, Buccafurri, Zanzarella, Dinero, Progelhof, and Hull told Plaintiff she
“was one of those ‘born again’ Christians who would bring other undesirable
people into the Avenel community[.]”
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Opinion of the Court
 Murray, Buccafurri, Zanzarella, Dinero, Progelhof, and Hull “threatened
[Plaintiff] not to bring her African-Americans or low-income friends and
associates from Christian Ministries into Avenel because they did not want
those kind of people in Avenel[.]”
 Zanzarella, Dinero, Murray, and Buccafurri shouted at her to “[e]at s*** and
die[.]”
 On one occasion while Plaintiff was walking her dog, Zanzarella and Hull
shouted: “Look there is a pig walking a dog[.]”
 Murray and Buccafurri told her “she better lose weight in a hurry and marry
an already married white male friend of hers or else[.]”
 At one point, Hull told Plaintiff “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[.]”
On another occasion, he uttered racial epithets at Plaintiff and “asked if she
was going to marry an African-American male who was at that time a guest at
[her] home[.]”
 Buccafurri mocked Plaintiff at one point by asking her “if she would still have
large breasts if she lost weight[.]” On another occasion he “followed [Plaintiff]
inside a grocery store yelling loudly, ‘I’ll keep on making sure you never get a
job anywhere!’ ”
 Defendants charged Plaintiff with false crimes five times over a two year
period.
 On or about April 8, 2004 Murray physically beat Plaintiff and then shouted
at her “[y]ou’ll never be a minister now[.]” Plaintiff was then transported to
the hospital via ambulance where she was informed her injuries would require
surgery.
 On 23 June 2004, while Plaintiff was sitting at the Avenel gazebo, Hull,
Zanzarella, and Progelhof surrounded her, thereby physically preventing her
from leaving, while simultaneously shouting insults and threats at her.
Plaintiff was forced to call 911 as a result and be escorted home by law
enforcement officers.
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Opinion of the Court
 On 18 October 2004, Defendants saw Plaintiff meeting a friend for coffee.
While they were having coffee, Defendants “placed a dismembered doll on the
car belonging to Plaintiff’s friend. [Plaintiff] and her friend were standing in
[her] driveway discussing the dismembered doll when Defendants Buccafurri
and Murray shouted at them. Defendants Buccafurri and Murray taunted and
chased [Plaintiff] and her friend from [Plaintiff’s] yard. [Plaintiff] and her
friend were forced to drive away.”
 On 13 February 2005, Plaintiff returned home from church to find her back
door — which had been bolted and locked — open. Upon inspection, she
observed that “[s]omeone had written inside of her large picture window by the
open door, the letters ‘MUR.’ [Her] private detective showed her a videotape
that shows Defendant Murray running across her back property on this same
day[.]”
 On 18 July 2005, Buccafurri accosted Plaintiff at a local grocery store,
threatened her, and told her that he would make sure she never got a job
anywhere.
 Zanzarella drove by Plaintiff on another occasion and “called [her] a b**** and
shouted at her to ‘[g]et out of the neighborhood.’ ”
 At one point “Hull accosted [her] at her home and told her she should move
because he did not want a ‘helpless female’ with medical problems living alone
next door to him.”
 Murray contacted Plaintiff’s former husband and requested any information
he possessed regarding her that could be used to blackmail her into leaving
Avenel.
 On 2 April 2006, while Plaintiff was sitting at the gazebo, Zanzarella accosted
Plaintiff and screamed at her. Hull subsequently told Plaintiff that “the
authorities would not help [her] because he was a close personal friend of the
New Hanover County district attorney and sheriff.”
 Buccafurri sent a package of documents to UMC officials containing false
information about her in order to prevent her ordination.
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Opinion of the Court
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
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Opinion of the Court
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
hold that the above behaviors by the Pearces are extreme
and outrageous conduct which intentionally or recklessly
caused severe emotional distress to Mr. (and Mrs.) Wilson.
. . . No one in a civilized society should be expected to take
the kind of harassment the evidence shows the Pearces
have forced upon the Wilsons . . . .
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
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Opinion of the Court
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 a complaint of sexual harassment against [the supervisor]”); Guthrie
v. Conroy, 152 N.C. App. 15, 24, 567 S.E.2d 403, 410 (2002) (affirming summary
judgment in favor of defendant on plaintiff’s IIED claim where defendant “(1) held
plaintiff from behind, and touched or rubbed her neck and shoulders; (2) ‘irritated’
her by placing a lampshade on her head when she fell asleep with her head on her
desk; (3) threw potting soil and water on plaintiff while she was planting flowers at
work, remarking when he threw a cup of water on plaintiff that he’d ‘always wanted
to see [her] in a wet T shirt’; and (4) placed a Styrofoam ‘peanut’ and other small
objects between the legs of a ‘naked man’ statuette that plaintiff displayed on her
windowsill at work and asked her ‘how she liked it’ with the addition”); Johnson v.
Bollinger, 86 N.C. App. 1, 5-6, 356 S.E.2d 378, 381-82 (1987) (IIED claim properly
dismissed where defendant approached plaintiff in angry and threatening manner
while carrying pistol, shook his hand in plaintiff’s face, and said in loud voice, “I will
get you”); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493-94, 340 S.E.2d
116, 122-23 (affirming summary judgment for defendants as to IIED claims where
allegations involved screaming and shouting, name-calling, throwing menus, and
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Opinion of the Court
various hostile acts toward pregnant employee), disc. review denied, 317 N.C. 334,
346 S.E.2d 140 (1986).
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.8
8
In her second amended complaint, Plaintiff alleges that “[she] is now disabled, in pain, suffers
from post-traumatic stress disorder and major depression from the attacks and harassment against
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Opinion of the Court
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.9 Therefore, we reverse the trial court’s dismissal of
Plaintiff’s IIED claims as to these Defendants.
3. Assault Claims
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.10 The statute of limitations for an assault claim is three
years. N.C. Gen. Stat. § 1-52(19) (2015). The most recent incident she alleges in
support of these assault claims occurred in 2004. In the Federal Action, Plaintiff did
not assert any assault claims except for the one brought against Murray in relation
to the Pier Incident, and, for this reason, her deadline for asserting the remaining
assault claims was not tolled. Consequently, since the present action was not filed
until 2013, these assault claims are barred by the statute of limitations and were
her, and is unemployable in her field. . . .” Defendants do not argue that Plaintiff has failed to
sufficiently plead the third element of an IIED claim.
9It remains to be seen, of course, whether Plaintiff will be able to offer admissible evidence in
support of these allegations at the summary judgment stage or at trial.
10Multiple assault claims were asserted by Plaintiff against Murray, but the only one left
undisturbed by the trial court’s 4 February 2015 Order was the assault claim related to the Pier
Incident.
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Opinion of the Court
correctly dismissed by the trial court. See Renegar, 145 N.C. App. at 85, 549 S.E.2d
at 232-33.
4. Claims for Tortious Interference with Potential Economic
Advantage
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).
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
a. The Association and Dinero
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.
b. Hull, Progelhof, Zanzarella, Murray, and Buccafurri
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.
i. Potential Employment with the UMC
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
Plaintiff’s TIPEA claims against Hull, Progelhof, Zanzarella, Murray, and
Buccafurri11 related to her potential employment with the UMC alleged, in pertinent
part, the following:
42. Defendants Association, Buccafurri, Murray, Dinero,
Hull, Progelhof, and Zanzarella knew that [Plaintiff] was a
graduate of the Yale Divinity School, that she had achieved
official certification as a candidate for ordained ministry in
the United Methodist Church, and that she was an active
participant in several local Christian ministries.
....
159. Upon information and belief, the Church officials
revoked [Plaintiff’s] certification because Defendant
Buccafurri collected libelous materials previously written
by Hull, Dinero, Progelhof, Zanzarella and Murray exactly
for this purpose and sent false information about [her] to
Church officials.
160. Upon information and belief, the decision to revoke
[Plaintiff’s] certification was also based upon the false
criminal charges filed against [her] by Defendants Murray,
Buccafurri, Hull, Progelhof, and Zanzarella.
....
162. Defendants Buccafurri, Murray, Dinero, Hull,
Progelhof, and Zanzarella had knowledge of the facts and
circumstances associated with [Plaintiff’s] prospective
entry into a contract with the United Methodist Church.
163. Defendants Buccafurri, Murray, Dinero, Hull,
Progelhof, and Zanzarella instituted false criminal charges
11 As noted above, the trial court denied Buccafurri’s motion to dismiss the TIPEA claim
alleging interference with Plaintiff’s potential employment with the UMC. Therefore, we must address
the validity of Plaintiff’s TIPEA claim regarding her employment opportunity with the UMC only as
to Hull, Progelhof, Zanzarella, and Murray.
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
against [Plaintiff], and deliberately caus[ed her] to suffer
emotional distress severe enough to preclude her
ordination in the United Methodist Church.
164. Upon information and belief, Defendants Buccafurri,
Dinero, Hull, Progelhof, Murray, and Zanzarella compiled
documents containing false and misleading statements
that besmirched [Plaintiff’s] reputation.
165. This package of documents contained false statements
that Defendants Buccafurri, Dinero, Hull, Progelhof,
Murray and Zanzarella knew to be false.
166. Defendants Buccafurri, Murray, Dinero, Hull,
Progelhof, and Zanzarella maliciously induced [the] United
Methodist Church not to enter into the prospective contract
with [Plainitff].
167. But for the tortious interference of Defendants
Association, Buccafurri, Murray, Dinero, Hull, Progelhof,
and Zanzarella [Plaintiff] and the United Methodist
Church would have entered into a valid contract.
168. Defendants Buccafurri, Murray, Dinero, Hull,
Progelhof, and Zanzarella made false statements about
[Plaintiff] to the United Methodist Church.
169. Defendants Buccafurri’s, Murray’s, Dinero’s, Hull’s,
Progelhof’s, and Zanzarella’s actions were not done in the
legitimate exercise of their own rights, but with a malicious
design to injure [Plaintiff].
170. Defendants Buccafurri, Murray, Dinero, Hull,
Progelhof, and Zanzarella acted without justification.
171. Defendants Buccafurri’s, Murray’s, Dinero’s, Hull’s,
Progelhof’s, and Zanzarella’s actions resulted in actual
damages to [Plaintiff].
172. On or about February 2, 2005, United Methodist
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
Church officials revoked [Plaintiff’s] ordination candidate
certification.
173. An ordination certificate is a prerequisite to becoming
an ordained minister in the United Methodist Church.
174. Defendant’s [sic] caused [Plaintiff] to lose substantial
economic benefits in the form of salary and fringe benefits.
(Emphasis added).
In Walker, we elaborated on the pleading requirements applicable to TIPEA
claims:
We think the general rule prevails that unlawful
interference with the freedom of contract is actionable,
whether it consists in maliciously procuring breach of a
contract, or in preventing the making of a contract when
this is done, not in the legitimate exercise of the
defendants’ own rights, but with design to injure the
plaintiffs, or gaining some advantage at their expense. . . .
Maliciously inducing a person not to enter into a contract
with another, which he would otherwise have entered into,
is actionable if damage results. The word “malicious” used
in referring to malicious interference with formation of a
contract does not import ill will, but refers to an
interference with design of injury to plaintiffs or gaining
some advantage at their expense. Thus, 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.
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
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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 false and misleading statements about her
for the purpose of preventing her from being hired by the UMC and that but for their
actions she would have entered into a valid employment contract with the UMC.
Moreover, she alleges these actions were taken by Defendants with full knowledge
that she was pursuing a position with the UMC and that their intention was to
undermine — without justification — her job prospects with the UMC. Finally, she
has alleged that as a result of these actions she suffered actual damages in the form
of loss of employment opportunity, salary, and fringe benefits.
We believe these allegations satisfy the pleading requirements for a TIPEA
claim. It is well settled that
[a] pleading adequately sets forth a claim for relief if it
contains: (1) A short and plain statement of the claim
sufficiently particular to give the court and the parties
notice of the transactions, occurrences, or series of
transactions or occurrences, intended to be proved showing
that the pleader is entitled to relief, and (2) a demand for
judgment for the relief to which he deems himself entitled.
The general standard for civil pleadings in North Carolina
is notice pleading. Pleadings should be construed liberally
and are sufficient if they give notice of the events and
transactions and allow the adverse party to understand the
nature of the claim and to prepare for trial.
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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.
ii. Potential Employment with Boys and Girls Home
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, __ N.C. App. __, __, 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
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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 omitted)). For these
reasons, we affirm the trial court’s dismissal of Plaintiff’s TIPEA claims against Hull,
Progelhof, Zanzarella and Buccafurri arising out of her failure to obtain employment
with the Boys and Girls Home.
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
5. NIED Claims
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:
210. Defendants Association, Buccafurri, Murray, Dinero,
Hull, Progelhof, and Zanzarella were negligent in that they
failed to use ordinary care not to inflict emotional distress
on [Plaintiff].
211. Defendants Association, Buccafurri, Murray, Dinero,
Hull, Progelhof, and Zanzarella breached this duty by
participating in a systematic pattern of harassment,
threats, violence, and intimidation against [Plaintiff].
(Emphasis added).
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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”).
III. Defendants’ Cross-Appeal
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).
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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 did not err in denying Defendants’ Rule 12(b)(7) motions.
Conclusion
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
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RADCLIFFE V. AVENEL HOMEOWNERS ASSN., INC.
Opinion of the Court
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.
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