Opinion
No. COA09-1050
Filed 15 June 2010 This case not for publication
Appeal by plaintiff from an order entered 28 April 2009 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 9 December 2009.
Hilbert Law Firm, PLLC, by Heather J. Williams, for plaintiff-appellant. Templeton Raynor, P.A., by Kenneth R. Raynor, for defendants-appellees.
Cabarrus County No. 08 CVS 4137.
Karlene Ayerza ("plaintiff") appeals from an order dismissing her complaint for intentional infliction of emotional distress and defamation upon a motion to dismiss made by Cabarrus County Department of Social Services ("DSS"), Angie Lassiter ("Lassiter"), Kim Frederick ("Frederick"), and Jane Doe ("Doe") (collectively, "defendants") pursuant to North Carolina Rules of Civil Procedure, Rule 12(b)(6). For the reasons set forth below, we affirm.
Plaintiff is a California resident and the cousin of E.H. and J.H., two juveniles who were taken into custody by DSS in 2007. On or about 5 April 2007, plaintiff spoke to DSS to express her interest in adopting E.H. if N.H., the mother of E.H. and J.H., failed to regain custody. Plaintiff inquired about the adoption process and asked DSS if she needed to file any documents regarding custody. During the same conversation, plaintiff asked to be updated if D.C., J.H.'s biological father, allowed J.H. to be adopted.
In a conversation on 7 May 2007 with Lassiter, a DSS employee, plaintiff stated that she wanted to adopt E.H. as soon as possible, but did not want to remove E.H. until DSS had an opportunity to pursue reunification efforts with N.H. Lassiter informed plaintiff that she would order a home study of plaintiff's home. In June 2007, plaintiff and Lassiter also had additional conversations regarding adoption of J.H. by another individual.
In July 2007, plaintiff spoke multiple times with DSS through Lassiter and Frederick regarding E.H. and J.H. In those conversations, DSS informed plaintiff that there was a high probability of her gaining custody of E.H., but it likely would be a struggle to obtain custody of J.H. because J.H. had a good relationship with the biological father.
In July, August, and October 2007, plaintiff continued to inquire as to the status of the home study, the process of juvenile placement, and the status of and general information regarding the juveniles, as well as to express her concern about not being able to visit E.H. and J.H. Plaintiff also asked whether she could provide anything for the children or whether she should attend hearings regarding the children. Furthermore, in a conversation with Frederick, plaintiff stated that, if she adopted E.H., she would allow N.H. to visit so long as N.H. was "clean and sober." Plaintiff stated she was unsure whether J.H.'s biological father could visit because she did not know him well. Plaintiff also expressed concern that it might be difficult for the children to visit North Carolina if she was able to adopt them.
In her December 2007 report to the court, Frederick stated that plaintiff had requested "to become [an] adoptive placement for E.H." At this time, plaintiff's home study had been completed. In January, February, and March 2008, plaintiff continued to request information regarding E.H. and J.H and the process of adoption.
On 13 March 2008, plaintiff flew to North Carolina for the juveniles' termination of parental rights ("TPR") hearings. Plaintiff was allowed to present evidence and to testify during the "best interests" phase of the hearings. During the TPR hearings, plaintiff came to believe that DSS, Frederick, and Lassiter had "grossly mischaracterized" conversations with plaintiff. DSS stated that plaintiff (1) did not want the juveniles until they were "free and clear for adoption," (2) "had no plans to return to North Carolina" to allow the biological parents' visitation, (3) had no interest in placement of the juveniles until it was clearly headed towards adoption, and (4) had rejected the option of legal guardianship notwithstanding that this option never had been discussed with her.
Plaintiff also alleged that Frederick testified that (1) plaintiff was not interested in adopting J.H.; (2) J.H. "was never a focus[,]" but was "always an afterthought" for plaintiff; (3) plaintiff did not want the children until they were "free and clear for adoption[;]" and (4) plaintiff did not ask for visitation with the juveniles until 4 January 2008. Additionally, DSS, through Doe, stated that plaintiff would take J.H., and the biological father would never see her and that plaintiff would "lock [J.H.] in a basement and not feed her." After the TPR hearing, DSS refused to consider plaintiff as an adoptive placement, J.H and E.H. were adopted into separate foster homes, and all ties with plaintiff were severed.
On 6 November 2008, plaintiff filed a complaint seeking relief upon claims for intentional infliction of emotional distress and defamation. On 5 March 2009, defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On 28 April 2009, the trial court filed an order granting the motion to dismiss. Plaintiff appeals.
Our standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. In ruling upon such a motion, the complaint is to be liberally construed, and the trial court should not dismiss the complaint unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.
Meyer v. Walls, 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997) (internal citations and quotation marks omitted). We review the trial court's decision to dismiss plaintiff's complaint de novo. S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 606, 659 S.E.2d 442, 447 (2008) (citation omitted).
On appeal, plaintiff first argues that the trial court erred by dismissing her complaint with respect to her allegations for intentional infliction of emotional distress. We disagree.
Intentional infliction of emotional distress requires "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress[.]" Foster v. Crandell, 181 N.C. App. 152, 167, 638 S.E.2d 526, 537, disc. rev. denied, 361 N.C. 567, 650 S.E.2d 602 (2007) (citations and internal quotation marks omitted). "[L]iability arises under this tort when a defendant's `conduct exceeds all bounds usually tolerated by decent society.'" Dickens v. Puryear, 302 N.C. 437, 447, 276 S.E.2d 325, 331 (1981) (quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)). Extreme and outrageous conduct goes beyond "all possible bounds of decency . . . [and is] atrocious, and utterly intolerable in a civilized community." Guthrie v. Conroy, 152 N.C. App. 15, 22, 567 S.E.2d 403, 409-10 (2002) (internal citation omitted). The intent may be satisfied when defendants have "reckless indifference to the likelihood they will cause severe emotional distress." Dickens, 302 N.C. at 452, 276 S.E.2d at 335. To satisfy the third element, plaintiff "must `present[] evidence . . . of diagnosable mental health conditions.'" Foster, 181 N.C. App. at 170, 638 S.E.2d at 538 (quoting Fox-Kirk v. Hannon, 142 N.C. App. 267, 274, 542 S.E.2d 346, 352, disc. rev. denied, 353 N.C. 725, 551 S.E.2d 437 (2001)).
In the case sub judice, in support of her intentional infliction of emotional distress claim, plaintiff complained that defendants (1) made false statements to the trial court and in court documents; (2) misled plaintiff into believing that she had taken proper steps to obtain adoptive placement of the juveniles; (3) provided false information to plaintiff, including having told her that she should not attend court hearings; (4) failed to notify plaintiff about the "new policy" adopted by DSS regarding relative visitation, but told plaintiff to be patient or that visitation would be available "when the time is right" in response to plaintiff's visitation requests; (5) failed to notify the court about plaintiff's visitation requests and falsely informed the court that plaintiff had not made a request for visitation until January 2008; (6) gave false testimony at the TPR hearings regarding conversations with plaintiff; and (7) grossly mischaracterized other conversations with plaintiff and portrayed her as either uninterested in the juveniles or interested only for selfish reasons. Plaintiff alleged that the foregoing conduct all was done intentionally or with a reckless indifference for the likelihood that it would cause severe emotional distress to her and that it was "intentionally designed to prevent [plaintiff] from receiving any serious consideration as an adoptive placement for the juveniles."
Plaintiff alleged that, as a result of these events, she suffered (1) shock and emotional stress so severe that it impaired her ability to work for a period of at least five months after the TPR hearings and negatively impacted her work performance for an extended period of time beyond the five-month period; (2) depression; (3) loss of interest in work and everyday activities and substantial loss of energy; (4) weight gain, disruption of sleep, migraine headaches, and lack of concentration; (5) back pain; and (6) increased susceptibility to illness due to weakened immune system.
Even taking plaintiff's allegations as true, the allegations are not sufficient to state a claim for intentional infliction of emotional distress. Plaintiff's allegations do not rise to the level of extreme and outrageous conduct. While arguably inconsiderate conduct, this does not rise to the requisite level of being "utterly intolerable" or "go[ing] beyond all possible bounds of decency." Johnson v. Colonial Life Accident Ins. Co., 173 N.C. App. 365, 373, 618 S.E.2d 867, 872 (2005) (internal citation omitted) (explaining that threats concerning plaintiff's losing his job and his health insurance and insults to plaintiff regarding his wife's history of cancer were not extreme and outrageous), disc. rev. denied, 360 N.C. 290, 627 S.E.2d 620 (2006). See also Guthrie, 152 N.C. App. at 21-25, 567 S.E.2d at 408-10 (explaining that the alleged conduct of a coworker (1) in touching or rubbing a former employee's neck and shoulders; (2) in placing a lampshade on her head when she fell asleep at her desk; (3) throwing potting soil and water on her while she was planting flowers at work; (4) remarking that he had "always wanted to see [her] in a wet T shirt[;]" and (5) placing small objects between the legs of a "naked man" statutette that the employee displayed on her windowsill at work, and asking her "how she liked it" with the addition, were "annoyingly juvenile, obnoxious, and offensive," but did not rise to the level of "outrageous and extreme[.]"). Cf. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 490-95, 340 S.E.2d 116, 121-23 (1985) (noting there was a forecast of extreme and outrageous conduct when an employee (1) made sexually suggestive remarks to plaintiff while she was working; (2) attempted to coax plaintiff to have sex with him; (3) rubbed against plaintiff and touched her on her buttocks; and (4) yelled profane names at her, threatened her, and, on one occasion, "advanced toward her with a knife and slammed it down on a table in front of her[.]").
Accordingly, without alleging extreme and outrageous conduct, as that conduct has been interpreted by our courts, plaintiff failed to state a claim for intentional infliction of emotional distress, and the trial court properly granted defendants' motion to dismiss with respect to this cause of action.
Next, plaintiff argues that the trial court erred by dismissing her complaint with respect to her allegations for defamation. We disagree.
To plead a case for defamation properly, plaintiff must allege that defendants made "`false, defamatory statements of or concerning the plaintiff, which were published to a third person.'" Craven v. Cope, 188 N.C. App. 814, 816, 656 S.E.2d 729, 732 (2008) (quoting Boyce Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 897 (2002)). To be actionable, the statement must be one communicating actual facts regarding the plaintiff, and those facts must be false. Id. at 817, 656 S.E.2d at 732. "`In determining whether a statement can be reasonably interpreted as stating actual facts about an individual, courts look to the circumstances in which the statement is made.'" Id. (quoting Daniels v. Metro Magazine Holding Co., L.L.C., 179 N.C. App. 533, 539, 634 S.E.2d 586, 590 (2006)). Furthermore, the statement regarding the plaintiff must be communicated to someone other than the plaintiff. Id.
Our courts have long recognized two actionable classes of oral defamation: slander per se and slander per quod:
That is, the false remarks in themselves ( per se) may form the basis of an action for damages, in which case both malice and damage are, as a matter of law, presumed; or the false utterance may be such as to sustain an action only when causing some special damage ( per quod), in which case both the malice and the special damage must be alleged and proved.
Donovan v. Fiumara, 114 N.C. App. 524, 527, 442 S.E.2d 572, 574 (1994) (quoting Beane v. Weiman Co., Inc., 5 N.C. App. 276, 277, 168 S.E.2d 236, 237 (1969)).
Specifically, slander per se is "`an oral communication to a third party which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease.'" Losing v. Food Lion, L.L.C., 185 N.C. App. 278, 281, 648 S.E.2d 261, 263 (2007) (quoting Boyce Isley, PLLC v. Cooper, 153 N.C. App. 25, 29-30, 568 S.E.2d 893, 898 (2002)).
Slander per quod is a spoken statement that is not defamatory on its face but with "extrinsic, explanatory facts" causes injury. Donovan, 114 N.C. App. at 527, 442 S.E.2d at 574-75 (quoting Badame v. Lampke, 242 N.C. 755, 757, 89 S.E.2d 466, 467 (1955)). "In such cases, `the injurious character of the words and some special damage must be pleaded and proved.'" Id. at 527, 442 S.E.2d at 575 (quoting Beane v. Weiman Co., Inc., 5 N.C. App. 276, 278, 168 S.E.2d 236, 238 (1969)); see also Stanford v. Owens, 46 N.C. App. 388, 398, 265 S.E.2d 617, 624 (1980) ("[S]pecial damages must be pleaded with sufficient particularity to put defendant on notice."). In the context of defamation, it is insufficient to allege emotional or mental distress to prove special damages — there must be showing of "pecuniary loss." Donovan, 114 N.C. App. at 527, 442 S.E.2d at 575 (quoting Williams v. Freight Lines, 10 N.C. App. 384, 387, 179 S.E.2d 319, 322 (1971)).
In the case sub judice, plaintiff alleged the following:
72. Upon information and belief, [DSS] case worker Jane Doe told D.C. that if J.H. was placed with [plaintiff], she would go to California and he would never see her again.
73. Upon information and belief, [DSS] case worker Jane Doe made comments to D.C. that [plaintiff] did not care about J.H. and only cared about E.H., and that [plaintiff] could take J.H. to California and "lock her in a basement and not feed her."
. . . .
93. The statements made by social worker Jane Doe to the effect that [plaintiff] (1) would take J.H. to California and D.C. would never see her again; (2) that [plaintiff] did not want J.H. and only wanted E.H.; and (3) that [plaintiff] could take J.H. to California and lock her in a basement and not feed her were all false and defamatory.
94. The foregoing statements implied, directly and indirectly, that [plaintiff] would not allow D.C. any contact with J.H. that [plaintiff] had no concern for the welfare of J.H., and that [plaintiff] would treat J.H. in an abusive fashion.
95. Upon information and belief, the statements set forth in paragraph 93 were made to the biological father of J.H., D.C.
96. Jane Doe made the foregoing defamatory statement in reckless disregard of the injury and damage such statement would cause to [plaintiff] in the context of the juvenile cases.
97. Jane Doe made the foregoing defamatory statements willfully, knowingly, and with malice to impede and interfere with the [p]laintiff's ability to be considered as an adoptive placement for J.H.
98. By reason of the foregoing defamatory statements made by [d]efendant Jane Doe, the [p]laintiff has been injured in good name and reputation, specifically in that the negative statements adversely impacted the biological father's opinion of her and his testimony during the TPR hearings in these juvenile matters.
99. As a direct and proximate result of the foregoing defamatory statements, the [p]laintiff has suffered physical and emotional pain and distress, damage to her good name and reputation, and has suffered other damages in an amount in excess of Ten Thousand Dollars ($10,000.00).
The allegations in plaintiff's complaint fail to meet the test set forth supra to constitute slander per se. They do not allege that DSS or case worker Jane Doe accused her of any crime; stated that she had an infectious disease; mentioned her trade or profession; or otherwise subjected her to ridicule, contempt, or disgrace. Therefore, the allegations in her complaint are not sufficient to meet the test for slander per se.
They also fail to meet the test for slander per quod as she clearly makes no allegation that she has suffered pecuniary loss other than the broadside allegation that she "has suffered other damages in an amount in excess of Ten Thousand Dollars ($10,000.00)." Such a broadside allegation, standing alone, is insufficient to sustain an action for slander per quod. Accordingly, plaintiff's argument is without merit.
Finally, plaintiff argues that the trial court erred by dismissing her complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure after characterizing several of plaintiff's pleadings as "conclusory" rather than treating them as true pursuant to the proper standard of review. We disagree.
When ruling upon a 12(b)(6) motion, the trial court is "`not required . . . to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.'" Laster v. Francis, ___ N.C. App. ___, ___, 681 S.E.2d 858, 862 (2009) (quoting Strickland v. Hedrick, 194 N.C. App. 1, 20, 669 S.E.2d 61, 73 (2008)). Furthermore, a trial court "will not accept mere conclusory allegations on the legal effect of the events a plaintiff has set out if those allegations do not reasonably follow from the plaintiff's description of what happened." Jordan v. Crew, 125 N.C. App. 712, 718, 482 S.E.2d 735, 738 (1997) (citing Beasley v. National Savings Life Ins. Co., 75 N.C. App. 104, 106, 330 S.E.2d 207, 208 (1985)).
Upon review, we are satisfied that the trial court took "the factual allegations set forth in the complaint as true" when it reviewed plaintiff's complaint. The trial court's order reflects that it only rejected "conclusory allegations unsupported by the facts alleged . . . [and] characterizations not based upon factual allegations." Plaintiff acknowledged the correct standard of review in her brief — the same standard as that employed by the trial court — but plaintiff fails to show how the trial court erred. In applying this standard, plaintiff attempts to fashion an argument on appeal by improperly characterizing the trial court's order as having treated several of "the allegations in the plaintiff's complaint as conclusory[.]" We are satisfied that the trial court appropriately rejected any conclusory or unsupported allegations and treated the rest as true in ruling upon defendants' motion to dismiss. Plaintiff's argument to the contrary is without merit.
For the foregoing reasons, we affirm the trial court's order dismissing plaintiff's complaint for intentional infliction of emotional distress and defamation pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
Affirmed.
Judges HUNTER, Robert C. and BRYANT concur.
Report per Rule 30(e).