Soderlund v. Kuch

• Decision Date: 15 May 2001
• Docket Number: No. COA00-361.,COA00-361.
• Citation: 143 NC App. 361,546 S.E.2d 632
• Parties: Christopher SODERLUND, Plaintiff, v. Richard KUCH and Richard Gain, Defendants.
• Court: North Carolina Court of Appeals

546 S.E.2d 632

143 NC App. 361

Christopher SODERLUND, Plaintiff, v. Richard KUCH and Richard Gain, Defendants.

No. COA00-361.

Court of Appeals of North Carolina.

May 15, 2001.

Elliott, Pishko, Gelbin & Morgan, P.A., by J. Griffin Morgan and Ellen R. Gelbin, Winston-Salem, for plaintiff-appellant.

Wells Jenkins Lucas & Jenkins, by Susan H. Gray, Winston-Salem, for defendant-appellees.

HUNTER, Judge.

Christopher Soderlund ("plaintiff") appeals from an order granting summary judgment in favor of Richard Kuch and Richard Gain (collectively "defendants") dismissing plaintiff's claims for intentional and negligent infliction of emotional distress. Plaintiff assigns error to the trial court's grant of defendants' summary judgment motion on three grounds: (1) the applicable statute of limitations had not expired, (2) plaintiff's alleged incompetence tolled the applicable statute of limitations, and (3) plaintiff forecasted sufficient evidence that established each essential element of his claims of intentional and negligent infliction of emotional distress. After a careful review of the record, briefs, and arguments, we disagree with plaintiff's contentions, and therefore, we affirm the trial court.

The relevant allegations of the complaint show that in 1983, plaintiff, then age fifteen (15), was admitted to the North Carolina School of the Arts ("NCSA"), where he began his studies as a ballet major. Sexual relationships between students and teachers were common knowledge at NCSA, and plaintiff believed that such relationships were a normal and acceptable part of studying at the school. In the spring of 1984, plaintiff, then age sixteen (16), began a sexual relationship with Gain, a NCSA faculty member in the modern dance department. During the relationship, Kuch, a NCSA assistant dean and faculty member, encouraged plaintiff to sexually submit to Gain, humiliated plaintiff by making suggestive remarks to him in front of other students, and then publicized plaintiff's sexual relationship with Gain. Later during the spring of 1984, Gain ended the relationship with plaintiff. Thereafter, defendants ridiculed plaintiff about his appearance and dancing skills. As a result, plaintiff became emotionally upset, and began over-eating, drinking excessively, and smoking.

At the end of the school year in 1984, plaintiff was informed that he was not going to be invited back for the next school year. In an attempt to continue his studies at NCSA, plaintiff requested and was allowed to transfer to the modern dance department for the summer semester. During this time, defendants flirted with plaintiff on some occasions and ridiculed him on others. Finally, when the summer session was complete, Kuch refused to allow plaintiff back into school for the fall semester.

Approximately two years passed when in 1986, plaintiff, then eighteen (18) years of age, returned to NCSA for a summer session in hopes of earning the respect and praise of defendants. During the summer, however, Gain did not speak to plaintiff, and Kuch verbally abused him.

As a result of defendants' treatment, plaintiff felt severe guilt and shame, and for the next seven years of his life, continued on a self-destructive course. During these years, plaintiff suffered several mental breakdowns, contemplated suicide, and was unable to lead a normal life or to form mature, healthy relationships. Ultimately, on 22 July 1992, plaintiff told his mother about his relationship with defendants. Based on this conversation, plaintiff allegedly understood for the first time that defendants' actions were improper. Subsequently in the fall of 1993, plaintiff was evaluated by a psychologist who diagnosed him with post-traumatic stress disorder ("PTSD") directly caused by the actions of defendants. The psychologist determined that until plaintiff told his mother about defendants' actions and the diagnosis was made, plaintiff was not aware that defendants' actions were improper, that there was a link between defendants' actions and his mental condition, and that he had a cause of action against defendants.

On 19 July 1995, plaintiff filed suit against Kuch, Gain, NCSA, and the University of North Carolina ("UNC") alleging intentional, reckless, and negligent infliction of emotional distress, negligence, constitutional violations, and seeking punitive damages. All defendants filed motions to dismiss which the trial court granted pursuant to N.C.R. Civ. P. 12(b)(1), (2), and (6) (1999). Plaintiff appealed the dismissal of his claims against Kuch and Gain, but he subsequently abandoned his civil claims against NCSA and UNC, and instead pursued them for negligence under the Tort Claims Act, N.C. Gen. Stat. § 143-291(a) (1996).

This case first came before us in Soderlund v. N.C. School of the Arts, 125 N.C.App. 386, 481 S.E.2d 336 (1997), after the trial court's grant of defendants' motions to dismiss pursuant to N.C.R. Civ. P. 12(b)(1), (2), and (6). In our previous opinion, this Court found that defendants had sufficient notice from the allegations in plaintiff's complaint that he may have been prevented from filing his claims due to his alleged incompetence, as defined in N.C. Gen. Stat. § 35A-1101(7) (1999). Soderlund, 125 N.C.App. 386, 481 S.E.2d 336. Therefore, we reversed the trial court's dismissal and remanded the case for a determination of whether plaintiff's condition rose to the level of incompetence as defined in § 35A-1101(7), thus tolling the applicable statute of limitations. Id.

Upon remand, discovery was conducted. Then, on 16 April 1999, defendants filed a motion for summary judgment. The motion was heard at the 23 August 1999 Civil Session of Forsyth County Superior Court, the Honorable Judson D. DeRamus, Jr. presiding. By order dated 30 December 1999, Judge DeRamus granted defendants' summary judgment motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 56 (1999). With respect to the applicability of the statute of limitations and the existence of all necessary elements of both intentional and negligent infliction of emotional distress, the trial court found that plaintiff's claim lacked a genuine issue of material fact. In finding no genuine issue of material fact as to the statute of limitations, we conclude that Judge DeRamus was necessarily ruling that plaintiff's alleged incompetence did not rise to the level of incompetence, as defined in § 35A-1101(7), necessary to toll the statute of limitations. Judge DeRamus thereby dismissed plaintiff's claims with prejudice, and plaintiff now appeals to this Court.

In his first assignment of error, plaintiff claims that the trial court erred when it granted summary judgment based on the expiration of the applicable statute of limitations. Plaintiff argues that his causes of action for intentional and negligent infliction of emotional distress did not accrue, thus the statute of limitations did not begin to run until his injury became apparent or ought reasonably to have become apparent to him—which was only after his conversation with his mother in 1992 or his diagnosis by his psychologist in 1993. We disagree.

"At the outset, we note that the standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998). Furthermore, "the evidence presented by the parties must be viewed in the light most favorable to the non-movant." Id. Therefore, summary judgment is only proper when "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) (1999).

"Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C.App. 505, 508, 317 S.E.2d 41, 43 (1984), aff'd, 313 N.C. 488, 329 S.E.2d 350 (1985). However, when "the statute of limitations is properly pleaded, and the facts with reference to it are not in conflict, it becomes a matter of law, and summary judgment is appropriate." Id. (citation omitted). Here, defendants filed, and the trial court granted, a motion for summary judgment pursuant to Rule 56 upon the grounds that there was a lack of a genuine issue of material fact with respect to the applicability of the statute of limitations, inter alia. "`Once a defendant has properly pleaded 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.'" Waddle v. Sparks, 331 N.C. 73, 85-86, 414 S.E.2d 22, 28-29 (1992) (quoting Pembee, 313 N.C. 488, 491, 329 S.E.2d 350, 353).

In an action for intentional infliction of emotional distress, a plaintiff must prove "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). Similarly, in an action for negligent infliction of emotional distress, a plaintiff must prove "(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress ..., and (3) the conduct did in fact cause the plaintiff severe emotional distress." Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Assuming arguendo, for the sake of this appeal, that plaintiff has established each essential element of both torts, plaintiff has the burden of showing that his action was brought within the applicable statute of limitations.

Because emotional distress claims are not specifically denominated under any...