Tuck v. Turoci, No. COA06-1571 (N.C. App. 2/5/2008)
| Decision Date | 05 February 2008 |
| Docket Number | No. COA06-1571,COA06-1571 |
| Parties | MILDRED C. TUCK, Plaintiff, v. JEAN TUROCI; LYNNE SWANSON, DVM; ALLISON ARNOULT, DVM; AADEL BUSSINGER; JO ANNIA RICHESIN; TOMMY MURRAY; BEVERLY FUNKE; MARGARET PENNYBACKER; and LAURIE KNOLL, Defendants. |
| Court | North Carolina Court of Appeals |
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.
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 meansof 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.1
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. § 14-361.2
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.
Funke and Knoll contend that this appeal is interlocutory and should be dismissed. These Appellees argue that since Plainti...
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