Bryant v. Thalhimer Bros., Inc.

• Decision Date: 21 December 1993
• Docket Number: No. 9121SC814,9121SC814
• Citation: 437 S.E.2d 519,113 N.C.App. 1
• Parties: Peggy S. BRYANT, Plaintiff, v. THALHIMER BROTHERS, INC. and Scruggs Colvin, Defendants.
• Court: North Carolina Court of Appeals

Page 519

437 S.E.2d 519

113 N.C.App. 1

Peggy S. BRYANT, Plaintiff, v. THALHIMER BROTHERS, INC. and Scruggs Colvin, Defendants.

No. 9121SC814.

Court of Appeals of North Carolina.

Dec. 21, 1993.

Kennedy, Kennedy, Kennedy & Kennedy by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, Winston-Salem, for plaintiff-appellee.

Haynsworth, Baldwin, Johnson and Greaves, P.A. by Charles P. Roberts, III and Gregory P. McGuire, Greensboro, for defendants-appellants.

ORR, Judge.

We note at the onset that we are in our discretion addressing the merits of the defendants' first argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. The issue has not been raised properly. As a result of incorrect pagination, the page stating the argument and referencing the assignment of error has been omitted. Ordinarily, if a party fails to include references to the assignment of error, the question is deemed abandoned and will not be considered on appeal. However, "[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest ...", Rule 2 allows us to waive this requirement and proceed to the merits. See State v. Shelton, 53 N.C.App. 632, 635, 281 S.E.2d 684, 688 (1981), appeal dismissed and cert. denied, 305 N.C. 306, 290 S.E.2d 707 (1982).

I.

The defendants have raised eight assignments of error for review by this Court. Initially, we address those issues which revolve around the applicable statute of limitations and the exclusion of evidence of conduct of Defendant Colvin which occurred prior to 5 December 1986.

Defendants first contend that the trial court committed reversible error in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiff's claim arising out of the defendants' conduct prior to 5 December 1986 was barred by the three-year statute of limitations applying to claims of intentional infliction of emotional distress. Secondly, they argue that plaintiff's counsel made admissions during the arguments on preliminary motions that effectively foreclosed plaintiff seeking damages for events occurring prior to 5 December 1986. Third, they argue that the trial judge committed error in refusing to instruct the jury on the applicable statute of limitations. Finally, they assert that the trial court's denial of the defendants' motion in limine to exclude evidence of events prior to 5 December 1986 was reversible error.

We hold that the evidence of conduct occurring prior to the 5 December 1986 date was not evidence of complete and separate torts, but rather was evidence of the elements of the claim itself and therefore, was not barred by the statute of limitations. Accordingly, we overrule the defendants' assignments of error based on the statute of limitations.

A.

The defendants assert that the plaintiff's claim for intentional infliction of emotional distress is barred by the three-year statute of limitations found at N.C.Gen.Stat. § 1-52(5). See also Waddle v. Sparks, 100 N.C.App. 129, 394 S.E.2d 683 (1990), aff'd in part and reversed in part on other grounds, 331 N.C. 73, 414 S.E.2d 22 (1992).

It is well settled in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, the plaintiff's evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiff's favor. Hornby v. Pennsylvania National Mutual Casualty Insurance Co., 62 N.C.App. 419, 303 S.E.2d 332, cert. denied, 309 N.C. 461, 307 S.E.2d 364 (1983). Where more than a scintilla of evidence has been presented by the plaintiff which supports each element of his prima facie case, a directed verdict should be denied. Snead v. Holloman, 101 N.C.App. 462, 400 S.E.2d 91 (1991). A motion for a judgment notwithstanding the verdict is essentially the renewal of the directed verdict motion, and the standards are the same. Miller v. Cannon Motors, Inc., 40 N.C.App. 48, 251 S.E.2d 925 (1979). Both motions serve to test the sufficiency of the evidence presented at trial, first after the plaintiff's case in chief and then again after the jury's decision.

In order to prove a claim for intentional infliction of emotional distress, the plaintiff is required to show that the defendant (1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress. Hogan v. Forsyth Country Club, 79 N.C.App. 483, 340 S.E.2d 116, review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The tort may also lie where a "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, 330 (1981). The statute of limitations for the tort of intentional infliction of emotional distress is three years. Id. at 444, 276 S.E.2d at 330. "Civil actions can only be commenced ... [within the three-year period], after the cause of action has accrued,...." N.C.Gen.Stat. § 1-15(a) (1983).

The recent decision by the North Carolina Supreme Court, Waddle, 331 N.C. 73, 414 S.E.2d 22, held that where the plaintiff could not show that "any of the specific incidents" took place within the statutory period, she could not survive a motion for summary judgment. In Waddle, suit was filed on 20 April 1988. Both plaintiffs alleged intentional infliction of emotional distress in response to repeated harassment and sexual innuendoes by the defendant Sparks. The purported harassment began sometime in 1983. Both the defendants pleaded the statute of limitations as an affirmative defense in their answer and moved for summary judgment on that basis after depositions of the plaintiffs were taken. The co-plaintiff, Simpson, could not produce evidence of any specific acts of harassment within three years of the filing of the suit. "Not only could she not remember a day or month when any of defendant's alleged comments of a sexually suggestive nature occurred, but she also failed to recall the year they occurred." Waddle, 331 N.C. at 86, 414 S.E.2d at 29. "If plaintiff Simpson could have testified that any of the specific incidents with Sparks occurred as late as February of 1986, her evidentiary forecast ... would have been sufficient to survive a summary judgment motion based on the statute of limitations." Id. at 87, 414 S.E.2d at 29.

The issue in Waddle, as to the plaintiff Simpson, was whether there was sufficient evidence of each element of the tort to create an issue for the jury to decide at trial. Simpson could not show any evidence of one of the elements of the tort, and therefore, summary judgment was appropriate. However, the Court in no way suggested that the prior occurrences would have been excluded at trial, nor was the issue of exclusion of evidence before the Court. Moreover, in the case at bar, there were two incidents occurring on or after 5 December 1986. Therefore, there was sufficient evidence to create an issue to be decided at trial, certainly when combined with evidence of the incidents of alleged conduct which took place in 1985.

The defendants rely on the rule of Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, which established that three years is the applicable statute of limitations for claims of intentional infliction of emotional distress and that evidence of the defendants' intentional torts against the plaintiff which took place prior to the applicable limitations period may not be considered in determining damages. However, both the law and the facts of Dickens are distinguishable from the case at bar.

In Dickens, the plaintiff alleged intentional infliction of emotional distress in his complaint which was filed more than one year and less than three years after the incident complained of took place. The action arose out of a single occurrence during which the defendant not only committed an assault and battery (governed by the one-year statute of limitations of G.S. § 1-54(3)) against the plaintiff, but also made significant threats of future harm. The defendant argued that the action was only one for assault and battery, although cast as one for intentional infliction of emotional distress. They further argued that even if the plaintiff had alleged a cause of action for emotional distress, that it, too, was governed by the one-year statute. The Supreme Court disagreed, finding that the more general language of G.S. § 1-52(5) controlled the intentional infliction claim and that the plaintiff's showing was sufficient to create an actionable claim for emotional distress. The Court concluded that "[a]lthough the assaults and batteries serve to color and give impetus to the future threat and its impact on plaintiff's emotional condition, plaintiff may not recover damages flowing directly from the assaults and batteries themselves." Dickens, 302 N.C. at 455, n. 11, 276 S.E.2d at 336 (emphasis added). The Court further stated that, "[a]lthough plaintiff's recovery for injury, mental or physical, directly caused by the assaults and batteries is barred by the statute of limitations, these assaults and batteries may be considered in determining the outrageous character of the ultimate threat and the extent of plaintiff's mental or emotional distress caused by it." Id. Thus, while the Court did not allow damages for the separate torts, it did allow the evidence of the extreme and outrageous conduct of the defendant as an element of the plaintiff's emotional distress claim, even though an assault and battery claim was barred.

In the case sub judice, the evidence presented at trial tended to indicate that incidents between the plaintiff and Defendant Colvin began in early 1985, soon after he was hired by Thalhimers in 1984. According to the plaintiff...