Opinion
No. COA11–1471.
2012-08-7
Dr. Janice Elizabeth Barron RUSHING, Plaintiff, v. Dr. John I. BARRON, Individually and as Co–Trustee of the Nelle W. Barron Revocable Trust Agreement, The Nelle Barron Revocable Trust, The Nelle W. Barron Amended Revocable Trust, William Ellis Barron, Individually and as Co–Trustee of the Nelle W. Barron Trust, Defendants.
Mr. Clyde Gary Triggs, attorney for plaintiff. Mr. Forrest A. Ferrell and Mr. Stephen L. Palmer, of Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, PA, attorneys for defendants.
Appeal by plaintiff from an order entered 22 March 2010 by Judge Forrest D. Bridges, and from orders entered 15 April 2010, and 6 April 2011 by Judge Beverly T. Beal, all in Burke County Superior Court. Heard in the Court of Appeals 10 May 2012. Mr. Clyde Gary Triggs, attorney for plaintiff. Mr. Forrest A. Ferrell and Mr. Stephen L. Palmer, of Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, PA, attorneys for defendants.
ELMORE, Judge.
Dr. Janice Elizabeth Barron Rushing (plaintiff) appeals from a collection of orders from the trial court 1) granting summary judgment in favor of her father and brother, 2) ruling in favor of her father, Dr. John Barron, on her defamation claim, and 3) awarding attorney's fees in favor of her father and brother. After careful consideration, we affirm.
I. Background
Plaintiff is the daughter of Nelle W. Barron (who is deceased) and Dr. John Barron. She has two brothers, John Barron, Jr. (also deceased) and William E. Barron. Plaintiff had a poor relationship with her family, and she was estranged from them for many years. From 1981 until 1994, plaintiff had no contact with anyone in her immediate family. During this time, her mother executed a last will and testament (the will) and a revocable trust, which entirely excluded plaintiff from inheritance.
However, in 1994, plaintiff met with her parents, and she then began having intermittent contact with them. In December 2004, her mother died. In 2006, plaintiff filed a caveat action contesting her mother's will. In that action she alleged that her mother lacked testamentary capacity and that her will was the product of undue influence and duress committed by her father and brother. Plaintiff also filed a civil action against her father and brother for 1) defamation, 2) civil conspiracy, 3) intentional infliction of emotional distress, 4) breach of fiduciary duty, and 5) unfair and deceptive trade practices. In that action, she also sought injunctive relief, punitive damages, and attorney's fees. Plaintiff based these claims on her belief that her father and brother turned her mother against her.
On 22 March 2010, the trial court entered an order granting summary judgment in favor of plaintiff's father and brother for all claims except one part of the defamation claim. The trial court allowed plaintiff to proceed, in part, with her defamation claim against her father for a statement he allegedly made about her stealing her mother's money. Plaintiff then appealed the trial court's decision to grant summary judgment, and she also filed a motion to stay trial on the remaining defamation claim pending her appeal. On 15 April 2010, the trial court issued an order denying plaintiff's motion to stay, and the defamation claim proceeded to trial. At the conclusion of the trial, the trial court ruled in favor of plaintiff's father. The trial court then issued an order on 6 April 2011, assessing both her father's and her brother's attorney's fees against plaintiff. In that order, the trial court found that plaintiff had improperly used the legal process to harass her family. Plaintiff now appeals.
II. Arguments
A. Summary judgment
Plaintiff first argues that the trial court erred by granting partial summary judgment in favor of defendants. We disagree.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
Here, the trial court granted summary judgment in favor of defendants on the following claims: 1) civil conspiracy, 2) intentional infliction of emotional distress, 3) motion to set aside conveyances, 4) injunctive relief, 5) unfair and deceptive trade practices, and 6) punitive damages. The trial court also granted summary judgment in favor of defendants on plaintiff's defamation claim, except with regards to statements allegedly made by her father. We will address each claim in turn.
i. Civil Conspiracy
With regards to her civil conspiracy claim, plaintiff alleged that her father and brother engaged in a civil conspiracy to alienate her mother's affection and to convince her mother to exclude plaintiff from inheritance. However, “[t]here is no independent cause of action for civil conspiracy.” Toomer v. Garrett, 155 N.C.App. 462, 483, 574 S.E.2d 76, 92 (2002). “Only where there is an underlying claim for unlawful conduct can a plaintiff state a claim for civil conspiracy by also alleging the agreement of two or more parties to carry out the conduct and injury resulting from that agreement.” Id. at 483, 574 S.E.2d at 92.
North Carolina has never recognized alienation of affection for any relationship other than that of spouses. “[A] lienation of affection involves a wrongful act that deprives a married person of the affection, love, society, companionship, and comfort of the spouse. The tort protects a spouse's interest in having a peaceful and uninterrupted marriage.” Am. Mfrs. Mut. Ins. Co. v. Morgan, 147 N.C.App. 438, 443, 556 S.E.2d 25, 28 (2001) (quotations and citations omitted). Thus, because plaintiff has not alleged an unlawful act recognized in the state of North Carolina, a civil conspiracy claim necessarily could not have arisen between the parties. As such, we conclude that the trial court did not err by granting summary judgment in favor of defendants with regards to this claim.
ii. Intentional Infliction of Emotional Distress
With regards to plaintiff's next claim, she alleged that years of emotional distress arising from the strained relationship with her family was intentionally directed at her by 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.’ “ Denning–Boyles v. WCES, Inc., 123 N.C.App. 409, 412, 473 S.E.2d 38, 40–41 (1996) (citations omitted). “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.” Guthrie v. Conroy, 152 N.C.App. 15, 22, 567 S.E.2d 403, 408–09 (2002) (quotations and citations omitted).
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities .... plaintiffs must necessarily be expected and required to be hardened to ... occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt.
Briggs v. Rosenthal, 73 N.C.App. 672, 677, 327 S.E.2d 308, 311 (1985).
Here, plaintiff alleged, in sum, that her father and brother “systematically exclud[ed][her] from family functions” and “treated [her] as though [she] did not exist[.]” However, this conduct, while perhaps painful to plaintiff, is not of the extreme or outrageous nature contemplated by this cause of action. Plaintiff may have in fact suffered some painful and hurtful emotions following years of strained relations with her family, but she has not alleged that it resulted from acts so egregious as to be utterly intolerable in a civilized community. Thus, we conclude that summary judgment as to this claim was proper.
iii. Motion to Set Aside Conveyances
Plaintiff's next claim was a motion to set aside conveyances. Here, she alleged that conveyances of property to her mother's revocable trust were invalid due to fraud, duress, or undue influence by her father and brother. In the alternative, plaintiff alleged that the revocable trust agreement was invalid from the time of its creation due to her mother's alleged incapacity.
However, our General Statutes require that actions contesting the validity of a revocable trust must be made within three years of the settlor's death or, at the trustee's election, 120 days after the settlor's death if the trustee gives proper notice. SeeN.C. Gen.Stat. § 36C–6–604 (2011).
Here, Nelle Barron died on 13 December 2004 and this action was filed on 18 July 2008. Thus, it is clear that plaintiff failed to timely file this action within the statute of limitations prescribed by N.C. Gen.Stat. § 36C–6–604. Accordingly, we conclude that the trial court did not err in granting summary judgment in favor of defendants for this claim.
iv. Injunctive Relief
Plaintiff next sought injunctive relief to prevent the distribution of assets from her mother's revocable trust. However, again N.C. Gen.Stat. § 36C–6–604 requires that actions contesting the distribution of trust property be made within three years of the settlor's death or, at the trustee's election, 120 days after the settlor's death if the trustee gives proper notice. Id. Thus, for the same reason set forth supra with regard to plaintiff's motion to set aside conveyances, we conclude that summary judgment was properly entered as to plaintiff's claim for injunctive relief.
v. Unfair/Deceptive Trade Practices
Plaintiff next alleged that the creation of her mother's revocable trust and conveyances of certain real property to it constituted an unfair or deceptive trade practice, because they were done under circumstances of fraud, duress, or undue influence. However, in order to show a prima facie case for unfair or deceptive trade practices, a plaintiff must allege, “1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs.” Walker v. Fleetwood Homes of N. Carolina, Inc., 362 N.C. 63, 71–72, 653 S.E.2d 393, 399 (2007).
Here, plaintiff argues that the transfer of real property to her mother's trust meets the “in commerce” requirement of this test. We disagree.
“Our courts have established that the private sale of a residence by an individual is not an act ‘in or affecting commerce,’ and is thus beyond the purview of G.S. 75–1.1. The law is otherwise as to persons who offer or sell real estate for a business.” Stephenson v. Warren, 136 N.C.App. 768, 773, 525 S.E.2d 809, 812–13 (2000) (citation omitted). The conveyance in this case was a private transaction between plaintiff's parents and a trust they established, which in no way affected commerce. “Although commerce is defined broadly under G.S. § 75–1.1(b) as ‘all business activities, however denominated,’ the fundamental purpose of G.S. § 75–1.1 is to protect the consuming public.” Durling v. King, 146 N.C.App. 483, 488, 554 S.E.2d 1, 4 (2001) (quotations and citations omitted). The transactions in the case sub judice were not business transactions nor did they involve the “consuming public.”
As a result, we conclude that plaintiff has failed to establish a claim for unfair or deceptive trade practices. Summary judgment was properly entered in favor of defendants as to this claim.
vi. Defamation
Next, with regards to plaintiff's defamation claim, the trial court granted summary judgment in favor of defendants on all parts, except to a statement made by plaintiff's father on 8 December 2007. That statement was that “[plaintiff] stole all of her mother's money, and she stole from me. Now she is trying to take my land. She will tell you those things are not true but they are.” Plaintiff argues that the trial court erred in limiting her defamation claim to only this statement. We disagree.
The statute of limitations for defamation actions including libel and slander is one year. N.C. Gen.Stat. § 1–54(3) (2011). Plaintiff's complaint was filed 22 April 2008, thus the only actionable instances of defamation are those which occurred on or after 22 April 2007. Defendants correctly note in their brief that plaintiff did not allege any specific instances of defamation occurring within this time period, except the statement by her father. Additionally, plaintiff concedes in her reply brief that most of the defamatory statements she alleged were made outside of the statute of limitations. Thus, we conclude that the trial court correctly granted summary judgment in favor of defendants for this claim.
However, in her reply brief, plaintiff argues in the alternative that evidence of other alleged instances of defamation should have been considered as evidence at trial. But we decline to address this additional argument, as it was not presented in plaintiff's principal brief, and it is not a response to any new issue raised by appellee in their brief. See Beckles–Palomares v. Logan, 202 N.C.App. 235, 246, 688 S.E.2d 758, 765,disc. review denied,364 N.C. 434, 702 S.E.2d 219 (2010) (holding that defendant, by its failure to advance the issue in its principal brief, has abandoned its assignment of error relating to the denial of its motion for summary judgment).
vii. Punitive Damages
Finally, we address plaintiff's claim for punitive damages. “Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud. (2) Malice. (3) Willful or wanton conduct.” N.C. Gen.Stat. § 1D–15 (2011).
Here, we have already determined that summary judgment was proper for each of plaintiff's substantive claims. As such, the trial court did not err in granting summary judgment in favor of defendants on plaintiff's claim for punitive damages.
B. Motion to Continue, Motion to Stay Pending Appeal
Plaintiff next argues that the trial court abused its discretion by denying a motion to continue pending appeal and a motion to stay pending appeal. We disagree.
“Whether to grant a motion to continue is within the sound discretion of the trial court.” Skelly v. Skelly, –––– N.C.App. ––––, ––––, 715 S.E.2d 618, 620 (2011) (quotation and citations omitted). Likewise, “the denial of a motion to stay or dismiss rests within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion.” Park E. Sales, LLC v. Clark–Langley, Inc., 186 N.C.App. 198, 202, 651 S.E .2d 235, 238 (2007) (quotations and citations omitted). Furthermore, this Court has held that an appeal from an order “granting partial summary judgment is interlocutory.” Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338,aff'd,360 N.C. 53, 619 S.E.2d 502 (2005). And “there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (citations omitted).
Here, plaintiff appealed from an order “granting Partial Summary Judgment in favor of the Defendants[.]” Thus, plaintiff's appeal was interlocutory. As such, the trial court's denial of plaintiff's motion to stay and motion to continue pending appeal was proper. We conclude that the trial court did not err with regards to this issue.
C. Attorney's Fees
Lastly, plaintiff argues that the trial court abused its discretion by awarding attorney's fees to defendants in the amount of $42,213.50. We disagree.
“Our review of the trial court's award is limited to the determination of whether the record demonstrates a manifest abuse of discretion by the judge. The trial court's discretion is practically unlimited.” Ollo v. Mills, 136 N.C.App. 618, 623, 525 S.E.2d 213, 216 (2000) (citation omitted). If a pleading is signed in violation of Rule 11 of our Rules of Civil Procedure, a trial court may impose appropriate sanctions, including attorney's fees. SeeN.C. Gen.Stat. § 1A–1, Rule 11 (2011).
According to Rule 11, the signer certifies that three distinct things are true: the pleading is (1) well grounded in fact; (2) warranted by existing law, or a good faith argument for the extension, modification, or reversal of existing law (legal sufficiency); and (3) not interposed for any improper purpose. A breach of the certification as to any one of these three prongs is a violation of the Rule.
Bryson v. Sullivan, 330 N.C. 644, 655, 412 S.E.2d 327, 332 (1992) (quotations omitted).
Here, the trial court found that “this action was brought in furtherance of [plaintiff's] pursuit of an inter-family dispute which began in the 1970's” and that plaintiff filed suit “for an improper purpose, namely to harass, persecute, or otherwise vex the Defendants.” Thus, the trial court found that plaintiff violated the third prong of Rule 11, that plaintiff advanced her claims for an improper purpose. As such, we conclude that the trial court did not abuse its discretion in awarding attorney's fees to defendants.
III. Conclusion
In sum, we conclude that the trial court properly granted summary judgment in favor of defendants with regards to each of plaintiff's claims. Furthermore, we conclude that the trial court did not abuse its discretion in denying plaintiff's motions to continue or stay pending appeal. Lastly, we conclude that the trial court did not abuse its discretion in awarding attorney's fees to defendants.
Affirmed. Judges GEER and THIGPEN concur.
Report per Rule 30(e).