Opinion
No. 06-1571.
Filed February 5, 2008.
Carteret County, No. 04 CVS 523.
Appeal by Plaintiff from orders entered 27 July 2006 by Judge W. Allen Cobb, Jr., in Carteret County Superior Court. Heard in the Court of Appeals 6 June 2007.
Ward and Smith, P.A., by A. Charles Ellis and William Joseph Austin, Jr., for Plaintiff-Appellant. Wallace, Morris, Barwick, Landis Stroud, P.A., by P. C. Barwick, Jr., for Defendant-Appellee Jean Turoci. Lynne Swanson, DVM, pro se. Harris, Creech, Ward and Blackerby, P.A., by C. David Creech and Jay C. Salsman, for Defendant-Appellee Allison Arnoult, DVM. Walker, Allen, Grice, Ammons Foy, L.L.P., by Jeffrey T. Ammons and Ron D. Medlin, Jr., for Defendant-Appellee Beverly Funke. Wallace, Morris, Barwick, Landis Stroud, P.A., by Thomas H. Morris and Kimberly Connor Benton, for Defendant-Appellee Margaret Pennybacker. Poyner Spruill LLP, by Timothy W. Wilson, for Defendant-Appellee Laurie Knoll.
Plaintiff Mildred C. Tuck ("Plaintiff") appeals from orders granting summary judgment in favor of Defendants Jean Turoci ("Turoci"), Lynne Swanson, DVM ("Swanson"), Allison Arnoult, DVM ("Arnoult"), Beverly Funke ("Funke"), Margaret Pennybacker ("Pennybacker"), and Laurie Knoll ("Knoll") (collectively, "Appellees") on her claims of malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. We affirm.
BACKGROUND
In 1976, Plaintiff's daughter incorporated the Carteret County Humane Society, Inc. (the "Society") as a nonprofit corporation "to prevent cruelty to animals, relie[ve] suffering among animals, and extend, through education, humane concepts." Shortly thereafter, the Society built an animal shelter (the "Shelter") on land owned by Carteret County (the "County") and leased to the Society at a cost of one dollar per year. Plaintiff's husband "designed" the Shelter, and Plaintiff was instrumental in raising the money to build it. The Society contracted with the County to provide animal services at the Shelter.
In the summer of 2002, the Shelter employed Defendants Aadel Bussinger ("Bussinger"), Jo Annia Richesin ("Richesin"), and Tommy Murray ("Murray") (collectively, the "employees"). The employees were supervised by Diana Markham ("Markham"). Plaintiff was the Shelter's general manager. The Shelter regularly euthanized animals in its care. Large dogs were typically euthanized by means of an intravenous injection. Cats and puppies, however, were typically euthanized by intracardiac injection, a method by which a lethal dose of sodium pentobarbital is directly injected into the animal's heart. The American Humane Association, the Humane Society of the United States, and the American Veterinary Medical Association, three leading organizations which promote the humane treatment of animals, only approve of euthanasia by intracardiac injection on animals that are "unconscious[,]" "deeply anesthesized[,]" or "comatose[.]" Plaintiff acknowledged that euthanasia by intracardiac injection without first administering an anesthetic was in conformity with the Shelter's procedures.
In performing intracardiac injections on feral cats, the Shelter's policy was to attach a syringe to a pole and to administer the injection through the cats' cages. The wild cats were not sedated or restrained prior to the injection. Plaintiff acknowledged that it was "not easy to hit a heart in a moving animal."
On 9 September 2002, Turoci, Arnoult, Funke, Pennybacker, Knoll, and seven other "concerned citizens" met to discuss what they considered problematic conditions at the Shelter. Turoci, Arnoult, Funke, and Knoll each were aware of the conditions through personal observation. Pennybacker became involved after reading about the Shelter in a newspaper. The group "decided that it was necessary to organize [themselves] in an attempt to improve the conditions at the [S]helter and help the animals." The group organized itself as the Carteret Animal Shelter Action Committee ("CASAC"). On 10 September 2002, Markham decided that one of the Shelter's puppies needed to be euthanized. She asked Murray to administer an intracardiac injection, but Murray refused. She asked Bussinger to perform the procedure, but Bussinger refused. Thereafter, without first administering an anesthetic, Markham attempted to euthanize the puppy by intracardiac injection. Markham missed the puppy's heart, causing the puppy to whimper for ten to thirty minutes before dying.
On 11 September 2002, CASAC composed a letter to the County Board of Commissioners in which they proposed "to take over the administration of [the Society] and its current contract with the County to ensure the proper operation [of the Shelter] in a humane and responsible manner." Arnoult, Funke, Pennybacker, and Knoll met with County Manager John Whitehurst ("Whitehurst") that day to discuss the Shelter's operation.
On 16 September 2002, the employees expressed concerns over the Shelter's management to Plaintiff. Unsatisfied with Plaintiff's response, the employees "walked off the job." After quitting, the employees met with Walter Westbrook, DVM ("Westbrook"), the Shelter's veterinarian, and told him that they had quit. After meeting with Westbrook, the employees went to Arnoult's office to let her know about the walkout. Arnoult called Turoci, and all five people went to speak with one of the County's Commissioners. On the County Commissioner's recommendation, the group then met with Whitehurst to tell him what had happened. On 17 September 2002, Whitehurst sent Plaintiff a letter notifying her that the County was going to terminate its contract with the Society in thirty days. Whitehurst advised Plaintiff that at that time the County would exercise its options under the contract and that the Society would be required to return County funds and to vacate the Shelter.
On 19 September 2002, the employees and Turoci met with Detective Jason Wank ("Wank") of the Carteret County Sherriff's Department. The employees described multiple acts of what they considered to be problematic conditions at the Shelter. Turoci, Bussinger, and Murray told Wank they wanted Plaintiff and Markham charged with cruelty to animals. Wank told the group that he would have to investigate their complaints, research the law, and speak with an assistant district attorney before pressing charges. Turoci suggested that Wank call Arnoult as part of his investigation.
Wank called Arnoult after the meeting, as suggested. Arnoult told Wank that euthanasia by intracardiac injection was not an acceptable procedure. Arnoult provided material and information to Wank concerning the procedure, and indicated that she would be willing to testify as an expert at trial. Continuing his investigation, Wank interviewed Plaintiff and Markham. Markham "freely admitted that on September 10, 2002[,] she gave the subject puppy an intracardiac injection without first administering anesthesia." Finally, Wank met with District Attorney David McFadyen and Assistant District Attorney Katherine Taylor ("Taylor") to review the findings of his investigation. After the meeting, Taylor "told [Wank] to proceed with the criminal summonses against [Plaintiff] and [Markham]."
On 24 September 2002, "upon information furnished under oath by [Wank,]" a magistrate found that there was probable cause to believe that on or about 10 September 2002 Plaintiff did unlawfully and willfully promote an act of cruelty to animals in the care of the Shelter "by instigating and promoting employees under her supervision to conduct inhumane euthanasia and thereby causing [unnecessary] pain and suffering[.]" The magistrate issued a criminal summons against Plaintiff charging her with the misdemeanor offense of instigating or promoting cruelty to animals in violation of N.C. Gen. Stat. § 14-361.
The magistrate also issued a summons against Markham. According to a newspaper article, the summons against Markham stated that she unlawfully and willfully did "torment, kill and deprive of necessary sustenance to an animal, a puppy in the care of [the Society], by failing to administer anesthesia prior to performing the act of intracardiac euthanasia, and did stab the heart of the animal with sodium phenobarbital, causing unnecessary suffering and unjustifiable pain."
After the summons was issued, Wank called Swanson to further research euthanasia by intracardiac injection. Swanson agreed to testify concerning the procedure at Plaintiff's trial. Additionally, Arnoult, Funke, Pennybacker, and Knoll submitted letters to the editor of a local newspaper which called for a change in the Shelter's management. These Appellees also sent Plaintiff a letter on 1 November 2002 calling for her resignation. Plaintiff was tried in district court on 7 May 2003. Both Swanson and Arnoult testified at Plaintiff's trial under subpoena. At the close of the State's evidence, the trial court dismissed the charge against Plaintiff.
On 7 May 2004, Plaintiff filed a complaint against Turoci, Swanson, Arnoult, Bussinger, Richesin, and Murray. Plaintiff later amended her complaint to add Funke, Pennybacker, and Knoll as Defendants. In the amended complaint, Plaintiff alleged that Defendants, acting in concert, caused the criminal summons to issue against Plaintiff. Plaintiff alleged that in procuring the summons, the employees acted out of spite and for vengeance due to employment disputes at the Shelter, and that Appellees procured the summons with the ulterior motive of forcing Plaintiff to disassociate herself from the Shelter. Plaintiff further alleged that the actions of all Defendants caused Plaintiff severe emotional distress.
After proceeding through discovery, Appellees filed motions for summary judgment. The last of these motions was filed on or about 7 June 2006. On 19 July 2006, Plaintiff voluntarily dismissed Murray from the action without prejudice. On 27 July 2006, the trial court entered separate orders granting summary judgment in favor of each Appellee.
On 23 August 2006, Plaintiff filed a notice of appeal from the summary judgment orders. On 27 September 2006, Plaintiff voluntarily dismissed Bussinger and Richesin from the action without prejudice and re-filed her notice of appeal from the summary judgment orders.
I. INTERLOCUTORY APPEAL
Funke and Knoll contend that this appeal is interlocutory and should be dismissed. These Appellees argue that since Plaintiff voluntarily dismissed the employees without prejudice, Plaintiff's claims against the employees are "outstanding" as Plaintiff "still has the opportunity to refile her action against them." Conversely, Plaintiff asserts that the summary judgment orders "became final judgments" when the voluntary dismissals were taken.
Generally, parties may appeal any "final judgment" of a superior court to the Court of Appeals. N.C. Gen. Stat. § 7A-27(b) (2005). "`A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.'" McCutchen v. McCutchen, 360 N.C. 280, 282, 624 S.E.2d 620, 622-23 (2006) (quoting Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)); see also N.C. Gen. Stat. § 1A-1, Rule 54 (2005). An interlocutory judgment, on the other hand, "is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey, 231 N.C. at 362, 57 S.E.2d at 381 (citing Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231 (1916)).
A party may appeal an interlocutory order under two circumstances. First, [pursuant to N.C. Gen. Stat. § 1A-1, Rule 54] the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims orparties in an action. Second, a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him [or her] if not corrected before an appeal from the final judgment.
Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006) (quotation marks and citations omitted).
In Hill v. West, 168 N.C. App. 595, 608 S.E.2d 416 (2005) (unpublished), as in the case at bar, plaintiffs brought suit against multiple defendants. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), the trial court dismissed two of the six defendants with prejudice, for plaintiffs' failure to state a claim upon which relief could be granted. After the trial court granted summary judgment in favor of three of the remaining four defendants, plaintiffs appealed. This Court dismissed the appeal as interlocutory because plaintiffs' claim against one defendant was still outstanding. The trial court then entered a consent order which dismissed the remaining defendant without prejudice and which stated, in part:
9. This Court specifically orders, with the consent of all parties, that if this case is remanded for trial, all claims against [the voluntarily dismissed defendant] may be reinstated as the Plaintiffs deem necessary and that the prior dismissals without prejudice will not be pled as a bar to said claims.
Hill v. West, 177 N.C. App. 132, 135, 627 S.E.2d 662, 664 (2006) (" Hill II") (emphasis added). Plaintiffs thereafter brought a second appeal to this Court. In Hill II, this Court again dismissed the appeal, stating "we believe that by entering into the consent order as to [the remaining defendant], counsel are manipulating the Rules of Civil Procedure in an attempt to appeal the [summary judgment order] that otherwise would not be appealable." Id. We stated that the "language" of the consent order revealed that it was not a "final" order within the meaning of N.C. Gen. Stat. § 1A-1, Rule 54. Id. at 136, 627 S.E.2d at 664. We suggested that "the General Assembly never contemplated or intended that parties would be allowed an appeal under the circumstances" of that case. Id. Finally, we stated that plaintiffs were "violating the spirit of our Rules and are attempting to do indirectly what they cannot do directly." Id.
The circumstances of Hill II are readily distinguishable from the case at bar, and we conclude that Hill II does not control the resolution of this case. The rights of the voluntarily dismissed Defendants in this case are not "in limbo[,]" id. at 135, 627 S.E.2d at 664, as were the rights of the dismissed defendant in Hill II. Until Plaintiff commences a new action against the employees, if she ever does, there is nothing left for the trial court to determine or resolve. See N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2005) ("If an action . . . is dismissed without prejudice . . . a new action based on the same claim may be commenced within one year. . . ."). In this case, the parties did not create an artificial mechanism which Plaintiff can invoke to circumvent the Rules of Civil Procedure and reinstate her claims against the employees. We discern no violation of the spirit of our Rules by Plaintiff in the case at bar. We conclude that the summary judgment orders became final judgments within the meaning of Rule 54 when Bussinger and Richesin were voluntarily dismissed without prejudice from the action. We note that this conclusion comports with a recent decision of this Court. See Noblot v. Timmons, 177 N.C. App. 258, 628 S.E.2d 413 (2006) (reaching merits of an appeal from an order granting summary judgment in favor of some, but not all, parties to an action after remaining parties were voluntarily dismissed without prejudice). This appeal, therefore, is not interlocutory, and the argument of Funke and Knoll is overruled.
II. SUMMARY JUDGMENT
Plaintiff argues that the trial court erred in granting Appellees' motions for summary judgment on each of her claims. We disagree.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). "`The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense.'" Dawes v. Nash Cty., 357 N.C. 442, 445, 584 S.E.2d 760, 762 (2003) (quoting Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). "The trial court may not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact." Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citing Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972)). "Moreover, all inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion." Id. (quotation marks and citation omitted). "The standard of review for summary judgment is de novo." Id. (citing Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006)).
A. CIVIL CONSPIRACY
In her brief, Plaintiff argues that "it is not necessary for Plaintiff to prove that each and every [Appellee] independently satisfies each and every element of each of Plaintiff's claims" because Appellees "acted in concert and thus may be held responsible for each other's actions through the doctrine of civil conspiracy." Plaintiff also argues that Arnoult, Pennybacker, and Knoll destroyed documentation about CASAC after the charges against Plaintiff were dismissed and that this destruction, through the principle of spoliation of evidence, creates an inference that Appellees were acting in concert.
"There 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) (citing Shope v. Boyer, 268 N.C. 401, 150 S.E.2d 771 (1966)), appeal dismissed and disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003). "The charge of conspiracy itself does nothing more than associate the defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one might be admissible against all." Shope, 268 N.C. at 405, 150 S.E.2d at 774 (1966) (citations omitted).
A claim for damages resulting from a conspiracy exists where there is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way, and, as a result of acts done in furtherance of, and pursuant to, the agreement, damage occurs to the plaintiff. In such a case, all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.
Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987) (citations omitted). "The existence of a conspiracy requires proof of an agreement between two or more persons." Henderson v. LeBauer, 101 N.C. App. 255, 261, 399 S.E.2d 142, 145 (citing Fox, 85 N.C. App. 292, 354 S.E.2d 737), disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991). "Although civil liability for conspiracy may be established by circumstantial evidence, the evidence of the agreement must be sufficient to create more than a suspicion or conjecture in order to justify submission to a jury." Id. (citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)).
Plaintiff has not forecast sufficient evidence of an agreement between Appellees to perform an unlawful act or to perform a lawful act in an unlawful way. While the evidence supports Plaintiff's assertion that Appellees shared a "common cause to bring about change at the Shelter," the evidence does not show that such a common cause constitutes an unlawful act nor does it show that Appellees intended to bring about a change at the Shelter in an unlawful manner. In sum, there is no evidence that Appellees entered into an agreement to maliciously prosecute Plaintiff or to cause her severe emotional distress.
Plaintiff is not aided by her spoliation argument. The principle of spoliation of evidence provides that a party's destruction of evidence in its control before it is made available to the adverse party may give rise to an inference that the evidence destroyed would injure the destroyer's case. McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000).
While Arnoult's, Pennybacker's, and Knoll's destruction of certain documents may give rise to an inference that the documents would injure their cases, the principle of spoliation does not give rise to an inference that Appellees as a group were acting in concert.
B. MALICIOUS PROSECUTION
"An action in tort for malicious prosecution is based upon a defendant's malice in causing process to issue." Middleton v. Myers, 299 N.C. 42, 44, 261 S.E.2d 108, 109 (1980). To prove a claim for malicious prosecution, a plaintiff must establish four elements: (1) the defendant instituted, procured, or participated in a criminal proceeding against the plaintiff; (2) without probable cause; (3) with malice; and (4) the criminal proceeding terminated in favor of the plaintiff. Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966). The fourth element is not at issue in this case as the charge against Plaintiff was dismissed at the conclusion of the State's evidence. See Best v. Duke Univ., 337 N.C. 742, 448 S.E.2d 506 (1994) (stating that the dismissal of a charge at the close of the State's evidence satisfies the fourth element of the claim).
North Carolina also recognizes an action for malicious prosecution based on the wrongful institution of civil proceedings. See, e.g., Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979) ("In . . . North Carolina, the protection afforded by an action for malicious prosecution has been extended to include an action for wrongful institution of civil proceedings.") (citations omitted). Where the claim of malicious prosecution is based on a prior civil proceeding, the plaintiff must also show "special damage[.]" Id. at 203, 254 S.E.2d at 625.
1. Instituted, Procured, or Participated in Criminal Proceeding
Plaintiff argues Appellees caused the criminal summons to issue against Plaintiff because they "persuaded [the employees] to press animal cruelty charges against Plaintiff, provided opinions to Wank regarding the criminality of the Shelter's euthanasia procedures, and/or offered to provide expert testimony for Wank in the trial." Plaintiff cites two cases in support of her argument, Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 412 S.E.2d 897 (1992), and Becker v. Pierce, 168 N.C. App. 671, 608 S.E.2d 825 (2005).
In Williams, defendant's loss prevention manager contacted the Charlotte Police Department after discovering evidence which led her to believe that plaintiff, one of defendant's store managers, was embezzling money from the store. The loss prevention manager gave the police copies of the sales documents which had aroused her suspicion and the names of customers involved in three of the suspicious transactions. A warrant was issued, and plaintiff was indicted. The only investigation performed by the police investigator before seeking the warrant was to call the three customers identified by the loss prevention manager. At trial, the charge against plaintiff was dismissed at the close of the State's evidence.
Subsequently, plaintiff brought a malicious prosecution action against defendant. A jury found that defendant had initiated the prior criminal proceeding against plaintiff, and the trial court entered judgment in plaintiff's favor. On appeal, this Court held that the trial court did not err in denying defendant's motion for directed verdict because "the jury could find defendant's actions went further than merely providing assistance and information" to the police. Williams, 105 N.C. App. at 201, 412 S.E.2d at 900. The Court pointed out that defendant brought all of the documents used in plaintiff's prosecution to the police and noted that, besides speaking with the three customers identified by the loss prevention manager, "[l]aw enforcement officials never interviewed other customers, store employees[,] or plaintiff prior to" plaintiff's arrest. Id. The Court further noted that law enforcement officials testified that they relied on the evidence compiled by the loss prevention manager. We concluded that "[e]xcept for the efforts of defendant, it is unlikely there would have been a criminal prosecution of plaintiff[,]" and that under the circumstances of that case, the trial court properly determined that the first element of the claim was a factual matter for the jury to resolve. Id.
In Becker, 168 N.C. App. 671, 608 S.E.2d 825, defendant was a confidential informant to the North Carolina Department of Motor Vehicles ("DMV"). He sent two letters and one fax to the DMV accusing plaintiffs of, inter alia, possessing stolen vehicles, operating an unlicensed junkyard, and selling vehicles without a dealer's license. A DMV inspector conducted a visual inspection of plaintiffs' property and determined that the information provided in defendant's communications was accurate. Thereafter, DMV employees, together with North Carolina Highway Patrol officers and Gates County Sheriff's deputies, entered plaintiffs' property without a warrant to investigate the alleged illegal activities. Plaintiffs were arrested and indicted on two offenses, but the criminal proceedings terminated in their favor.
Subsequently, plaintiffs brought a malicious prosecution action against defendant. The trial court granted summary judgment in defendant's favor, but this Court reversed the trial court on appeal. In reversing, this Court noted that an affidavit submitted by the DMV inspector stated that defendant's communications spurred his investigation, and we concluded that there was "no dispute that defendant provided the initial information that led to the warrantless search of plaintiffs' property and their arrest." Id. at 675, 608 S.E.2d at 829. Citing Williams, we held that a jury should be allowed to consider the factual issue of whether defendant initiated the criminal proceedings.
The Court also held that genuine issues of material fact existed on the elements of probable cause and malice.
Neither Williams nor Becker support Plaintiff's contention that the actions of Appellees in this case can be said to have initiated the criminal proceeding against Plaintiff. The defendants in both of those cases personally contacted the authorities to provide information and evidence concerning suspicious activities. In the case at bar, the communications of the employees, and arguably Turoci, instigated Wank's investigation. Plaintiff makes no allegation that the initial communications with Wank were in any way dishonest. "The act of giving honest assistance and information to prosecuting authorities does not render one liable for malicious prosecution." Williams, 105 N.C. App. at 201, 412 S.E.2d at 900 (citing Shillington v. K-Mart Corp., 102 N.C. App. 187, 402 S.E.2d 155 (1991); Harris v. Barham, 35 N.C. App. 13, 239 S.E.2d 717 (1978)).
Furthermore, we are wholly unpersuaded by Plaintiff's argument that Appellees, insofar as they persuaded the employees to speak to Wank, initiated the criminal proceeding. First, Plaintiff's argument is not supported by the evidence. According to Murray's uncontroverted affidavit and deposition testimony, he made the decision to speak to Wank on his own. Thus, it cannot be said that "[e]xcept for" the efforts of Appellees, it is unlikely there would have been a criminal proceeding against Plaintiff. Williams, 105N.C. App. at 201, 412 S.E.2d at 900. Second, even assuming arguendo that each Appellee persuaded each employee to speak to Wank, such persuasion is too remote to be considered the cause of the issuance of criminal summons against Plaintiff. After speaking with the employees, Wank called Arnoult to gather information regarding euthanasia by intracardiac injection. Wank then spoke to both Plaintiff and Markham and specifically questioned them regarding the incident with the puppy. Wank brought all of his investigation's findings to the District Attorney's office and was told to seek the issuance of a summons. Under these circumstances, there is no genuine issue of material fact that Appellees did not cause the criminal summons to issue against Plaintiff. Middleton, 299 N.C. 42, 261 S.E.2d 108. Because Appellees have made a showing that an essential element of Plaintiff's claim does not exist, the trial court properly granted summary judgment in favor of Appellees on Plaintiff's claim of malicious prosecution. Dawes, 357 N.C. 442, 584 S.E.2d 760.
2. Probable Cause
Even if there were a genuine issue of material fact on the issue of whether Appellees initiated the criminal proceeding, we also conclude that there is no genuine issue of material fact that Appellees had probable cause to initiate the prior proceeding. In a malicious prosecution action, "[p]robable cause . . . has been properly defined as the existence of such facts and circumstances, known to [the defendant] at the time, as would induce a reasonable [person] to commence a prosecution." Best, 337 N.C. at 750, 448 S.E.2d at 510 (quotation marks and citation omitted). "Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court." Id. (citing Cook, 267 N.C. at 171, 147 S.E.2d at 914).
In this case, Appellees knew that Shelter employees, acting under Plaintiff's management, routinely performed intracardiac injections for the purpose of euthanasia on animals that were not sedated, unconscious, or comatose. Appellees also knew that the American Humane Association, the Humane Society of the United States, and the American Veterinary Medical Association disapprove of this method of euthanasia in such situations. Under these facts and circumstances, a reasonable person would be induced to report the Shelter's euthanasia policy to the authorities. Thus, even if it can be said that Appellees initiated the criminal proceeding, Appellees acted with probable cause, and the orders of the trial court could be affirmed on this ground alone. Dawes, 357 N.C. 442, 584 S.E.2d 760.
N.C. Gen. Stat. § 130A-192 provides that a city or county animal control officer shall dispose of a dog or cat impounded for not wearing a rabies vaccination tag by, inter alia, returning the animal to its owner, arranging for the adoption of the animal by a new owner, or putting the animal to death by a procedure approved by one of these three organizations. N.C. Gen. Stat. § 130A-192 (2005).
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The essential elements of a claim for intentional infliction of emotional distress are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another." Dickens, 302 N.C. at 452, 276 S.E.2d at 335. As this Court stated in Briggs v. Rosenthal, 73 N.C. App. 672, 327 S.E.2d 308, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985), the initial determination of whether conduct is extreme and outrageous is a question of law for the court. "If the court determines that it may reasonably be so regarded, then it is for the jury to decide whether under the facts of a particular case, defendants' conduct . . . was in fact extreme and outrageous." Id. at 676, 327 S.E.2d at 311. We further stated:
"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to express an unflattering opinion. . . ."
Id. at 677, 327 S.E.2d at 311 (quoting Restatement (Second) of Torts § 46 cmt. d).
Extreme and Outrageous Conduct
Plaintiff contends that Appellees' conduct was extreme and outrageous. In support of this contention, Plaintiff cites Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757 (1987), and 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).
Plaintiff argues that her case "is conceptually the same as Dixon[.]" In Dixon, a plaintiff filed a complaint alleging that defendants "ridicul[ed]" and "harass[ed]" him in the workplace and that defendants' behavior was intended to cause and did cause severe emotional distress. Dixon, 85 N.C. App. at 340, 354 S.E.2d at 759. "[T]he specific acts constituting the ridicule and harassment were not alleged" in plaintiff's complaint. Id. The trial court dismissed plaintiff's action pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for plaintiff's failure to state a claim upon which relief could be granted. This Court reversed the trial court, stating that we could not "say that it appears beyond doubt that plaintiff can prove no set of facts in support of these allegations which would entitle him to relief[,]" and that "[e]xtreme and outrageous ridiculing and harassing has been grounds for recovery under [the] tort before." Id. (citations omitted).
Aside from the difference in procedural posture between Dixon and the case at bar, Plaintiff in the case at bar has identified the specific acts which she alleges constitute extreme and outrageous conduct. Upon review, we conclude that none of these acts constitute extreme and outrageous conduct. Plaintiff contends Appellees "engineered a vicious campaign to remove Plaintiff from the Shelter[,]" "devise[d] a plan to take over the Shelter, procure[d] criminal charges against Plaintiff, incite[d] a media campaign against Plaintiff, and work[ed] toward Plaintiff's removal from the Shelter[.]" We have determined that Appellees did not procure criminal charges against Plaintiff. We further conclude that persuading the employees to speak to Wank, submitting letters to the editor regarding the Shelter's conditions, writing a letter to Plaintiff calling for her resignation, and announcing and holding public meetings of CASAC do not constitute extreme and outrageous conduct. Plaintiff points to no other specific act which could reasonably be considered extreme and outrageous, and we have found none in our review of the copious record.
Moreover, we are not persuaded by Plaintiff's reliance on Wilson, 105 N.C. App. 107, 412 S.E.2d 148, for the proposition that "[d]irecting attacks at an elderly woman is not tolerable to decent society." No act of any Appellee remotely approaches any of the behavior exhibited by the defendants, the Pearces, toward the elderly plaintiffs, the Wilsons, in that case:
On numerous occasions, Mr. Pearce would stand in his yard, raise his fists to the Wilsons if they were in their yard and make an obscene gesture. Mr. Pearce repeatedly cursed the Wilsons loud enough for several neighbors to hear. Mr. Pearce frequently stood in his window in full view of Mrs. Wilson and made obscene gestures with his "private parts" at her and then laughed at her reaction. At the time he was making these gestures, he "mouthed" obscene words.
Defendants 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. The evidence shows that the Pearces do not own a fireplace and that rats inhabit the woodpile.
Mr. Pearce has on more than one occasion told both Mr. and Mrs. Wilson to "suck my dick" while rubbing his "private parts." In January 1987, Mr. Pearce accused Mr. Wilson of knocking over some wood in his yard and began loudly cursing Mr. Wilson. Mr. Pearce then told Mrs. Pearce to "go get my gun." Mrs. Pearce went into the house and came back with what appeared to be a pistol covered by atowel. Mr. Wilson has also observed Mr. Pearce throwing broken glass into his yard.
The Pearces have also complained to the Durham City Housing Inspector about the condition of the Wilsons' yard. The official involved in that inspection refused to cite the Wilsons for any violations. While the inspector was present, Mr. Pearce came out of his house and began cursing Mr. Wilson in a loud voice. Also, in June 1988, the Pearces reported a "juvenile disturbance" at the Wilsons to the Durham Police Department. Upon investigation, the only juvenile police discovered at the Wilsons was their eleven day old grandchild.
On numerous occasions, Mr. Pearce cursed the Wilsons' grown children in the Wilsons' presence. On another occasion, after being informed by his wife that Mr. Wilson was working in his rosebed, Mr. Pearce yelled at Mr. Wilson "I'm gonna get me some god damn rocks and knock his god damned brains out." Mr. Pearce also fired a pistol from his yard into the Wilsons' yard in Mr. Wilson's presence. Mr. Pearce was allegedly firing at a stray dog. Since 1980, Mrs. Pearce has been photographing the Wilsons in their yard and on their property and keeping a file on the Wilsons for court purposes.
After the Wilsons filed their initial complaint in July 1989, Mr. and Mrs. Pearce continued to escalate their harassment of the Wilsons. Mr. Pearce was served with a temporary restraining order on 3 July 1989 to stop his alleged harassment of the Wilsons. However, after the restraining order, Mr. Pearce was found in wilfull contempt for the following acts. In August 1989, Mr. Pearce threatened to kill Mr. Wilson. Mr. Pearce also threatened another neighbor and attempted to have that neighbor arrested for criminal trespass because that neighbor was helping Mr. Wilson cut his lawn. Mr. Pearce "mowed his lawn" nine times in two weeks in August 1989 around 6:00 a.m. and parked his lawn mower as close as possible to the Wilsons' bedroom window for the purpose of disturbing the Wilsons' peace. On 14 August 1989, Mr. Pearce attempted to take out a warrant for arrest for the Wilsons' daughter, Andrea, but the magistrate refused to issue the warrant. Mrs. Pearce then filed a civil action against Andrea Wilson.
Id. at 115-16, 412 S.E.2d at 152-53. Moreover, there is no discussion in Wilson that suggests the acts of the defendants were extreme and outrageous because they were directed toward an elderly couple. We stated that " [n]o one in a civilized society should be expected to take [that] kind of harassment[.]" Id. at 117, 412 S.E.2d at 153 (emphasis added).
There is no genuine issue of material fact that any action of any Appellee amounted to extreme and outrageous conduct. Plaintiff's argument to the contrary is overruled, and we affirm the trial court's grant of summary judgment in favor of each Appellee on Plaintiff's claim of intentional infliction of emotional distress.
D. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The essential elements of a claim for negligent infliction of emotional distress are "(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as `mental anguish'), and (3) the conduct did in fact cause the plaintiff severe emotional distress." Johnson v. Ruark Obstetrics Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). "Negligence is the breach of a legal duty owed by defendant that proximately causes injury to plaintiff." Guthrie v. Conroy, 152 N.C. App. 15, 25, 567 S.E.2d 403, 410 (2002). "`In order to establish actionable negligence, a plaintiff must show that: (1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligen[t] breach of such duty was the proximate cause of the injury.'" Id. at 25, 567 S.E.2d at 410-11 (quoting Gordon v. Garner, 127 N.C. App. 649, 660-61, 493 S.E.2d 58, 65 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 86 (1998)).
In her brief, Plaintiff argues Appellees failed to implement their "goal of taking over the Shelter" with due care and, therefore, were negligent. Plaintiff points to no specific act of any particular Appellee that she contends amounts to negligence. Plaintiff generally suggests that Appellees may be found negligent because CASAC's mission statement referred to Plaintiff by name, because CASAC engaged in a "media crusade" to effect change in the Shelter's leadership, and because Appellees criticized "the Shelter." The evidence which possibly supports these allegations does not amount to negligence. Moreover, having reviewed all the evidence in this case, we cannot conclude that the acts of any Appellee amounted to negligent behavior. Accordingly, Plaintiff's argument is overruled, and the trial court's orders are affirmed.
Affirmed.
Judges McGEE and SMITH concur.
Report per Rule 30(e).