1. Pleadings--amendment of complaint--relation back
The trial court erred in an emotional distress action in its
alternate conclusion that any attempt by plaintiff to amend her
complaint would be futile in that the amendment would not relate
back to the original filing. The relevant date is the date of
the filing of the motion for leave to amend, not the date the
court rules on the motion; even assuming that this plaintiff's
claim accrued at the earliest possible date, plaintiff's motion
for leave to amend was filed prior to the running of the statute
of limitations.
2. Pleadings--amendment--motion to dismiss--ruled upon first
The trial court erred in an emotional distress action in its
alternate conclusion that there was no proper amendment of the
complaint where the court ruled on a motion to dismiss before
ruling on the motion for leave to amend.
3. Pleadings--leave to amend
Leave to amend a complaint for emotional distress to add
defendants and claims should have been allowed where the claims
arose from the same occurrence, plaintiff provided notice of the
motion to existing parties, and there was no apparent reason to
deny leave to amend.
4. Emotional Distress--claim for relief--sufficiently stated
The trial court erred by determining that a complaint failed
to state a claim for which relief could be granted as to
defendant Young where the complaint alleged causes of action for
intentional and negligent infliction of emotional distress and
civil conspiracy to deprive plaintiff of her rights as a woman
under N.C.G.S. § 99D-1, and the alleged facts, taken as true,
indicate that Young was responsible for mixing the drinks which
rendered plaintiff physically helpless; that Young knew or should
have known that plaintiff became physically helpless and later
unconscious after drinking the drinks; that Young was present
while plaintiff was stripped naked, filmed, carried to a sofa
gasping for air, examined by a paramedic, and removed from the
house by another defendant; that Young later sought to conceal
her involvement in the incident despite knowing that it was the
subject of a criminal investigation; and that Young acted upon a
common scheme with other defendants to harass and discredit
plaintiff, and to destroy evidence and obstruct justice.
McSurely & Osment, by Alan McSurely and Ashley Osment, for
plaintiff-appellant.
Ward & Smith, P.A., by V. Stuart Couch and A. Charles Ellis,
for defendant-appellee Jeannie Young.
HUDSON, Judge.
Nicole Zenobile (plaintiff) appeals the 23 March 2000 order of
the trial court granting defendant Jeannie Young's motion to
dismiss. We reverse and remand.
On 2 June 1999, plaintiff, a dispatcher for the Elizabeth City
Police Department (ECPD), filed a complaint naming only one
defendant, Brent McKecuen, an officer with the ECPD. The complaint
generally alleges that while plaintiff was at McKecuen's parents'
house for a social gathering in mid-September of 1996, plaintiff
“became helpless” and McKecuen filmed plaintiff with a video camera
after others had removed her bathing suit. The complaint further
alleges that McKecuen displayed the video tape to people at the
house that night, and to members of the ECPD and other individuals
during the next few days. The complaint sets forth claims for
intentional infliction of emotional distress (IIED) and negligent
infliction of emotional distress (NIED), and requests compensatory
and punitive damages.
On 30 July 1999, McKecuen filed an answer denying the
allegations and raising certain defenses. On 30 August 1999,
plaintiff filed a “Motion for Leave to File Amended Complaint,”requesting leave to add two additional defendants, to add two
additional claims, and to add additional allegations to the
original complaint. Plaintiff also attached and filed with the
motion her proposed amended complaint. McKecuen was served with a
copy of plaintiff's motion and a copy of the amended complaint.
The two proposed additional defendants were each served with a
summons and a copy of the amended complaint.
The proposed amended complaint names Alfred Sanderlin and
Jeannie Young as defendants in addition to McKecuen. It alleges
that the three defendants “singly and in concert” engaged in
conduct constituting IIED and NIED, and that they “conspired to
deprive [plaintiff] of her civil rights as a woman” in violation of
N.C.G.S. § 99D-1 (1999), “Interference with Civil Rights.” In
addition, the amended complaint sets forth the alleged incident of
mid-September of 1996 in further detail, including: that plaintiff
was invited by Sanderlin to the house for a pool party; that
Sanderlin asked Young to mix a drink for plaintiff; that Young
mixed two drinks for plaintiff; that plaintiff drank as much as
half of one drink although it “did not taste right”; that plaintiff
was rendered “physically helpless” after ingesting the drink and
became unconscious within thirty minutes; that Sanderlin said to
McKecuen, “Get the camcorder”; that Young said to Sanderlin, “It's
all yours, Al” and, “I need to know which way you're going on this,
because I've got money riding on it”; that at one point plaintiff
was carried to the living room sofa while she was gasping for air;
that a paramedic, who was a personal friend of McKecuen, was called
to the house to examine plaintiff; that plaintiff regainedconsciousness the following morning in an apartment belonging to an
officer of the ECPD; that when she regained consciousness
Sanderlin's fingers were penetrating her vagina; that after
plaintiff reported the incident, defendants met at Young's house
and conspired to cover up the incident.
On 14 October 1999, before the trial court had ruled on
plaintiff's motion for leave to amend, Young filed an answer to the
proposed amended complaint, denying the allegations and raising
certain defenses. Young's first defense requests the court to
dismiss plaintiff's claim against Young for failure to state a
claim upon which relief may be granted pursuant to N.C.R. Civ. P.
12(b)(6). On 29 October 1999, Young filed an amendment to her
answer adding as a defense that plaintiff's claims were barred by
the Statute of Limitations. Following a hearing on Young's motion
to dismiss, the trial court entered an order on 23 March 2000
granting Young's motion to dismiss. This order states, in
pertinent part:
After reviewing the Complaint and Amended
Complaint and hearing arguments of counsel, it
appears to the Court that the Amended
Complaint fails to state a claim for which
relief can be granted against Defendant
Jeannie Young; and, in the alternative, there
has been no proper amendment of the Complaint
alleging claims against Defendant Jeannie
Young; and, in the alternative, any attempt by
Plaintiff to seek amendment by the Court would
be futile in that the amendment would not
relate back to the original filing of the
Complaint.
Plaintiff appeals from this order, assigning error to the trial
court's conclusions that: (1) plaintiff's amended complaint fails
to state a claim against Young upon which relief may be granted;(2) there was no proper amendment of the complaint; and (3) any
attempt by plaintiff to seek amendment would be futile because the
amendment would not relate back to the filing date of the original
complaint.
We note that plaintiff's brief, containing two arguments,
fails to comply with Rule 28(b)(5) of the Rules of Appellate
Procedure, which requires that “[i]mmediately following each
question shall be a reference to the assignments of error pertinent
to the question, identified by their numbers and by the pages at
which they appear in the printed record on appeal.” N.C.R. App. P.
28(b)(5). The Rules of Appellate Procedure are mandatory and a
failure to follow the rules subjects an appeal to dismissal. See,
e.g., Wiseman v. Wiseman, 68 N.C. App. 252, 314 S.E.2d 566 (1984).
However, in our discretion we deem it appropriate to consider
plaintiff's three assignments of error because they correspond to
the substance of the arguments in plaintiff's brief, and because we
believe it is in the interest of justice to do so. See N.C.R. App.
P. 2.
[1]Rule 15 of the North Carolina Rules of Civil Procedure
provides, in pertinent part:
A party may amend his pleading once as a
matter of course at any time before a
responsive pleading is served . . . .
Otherwise a party may amend his pleading only
by leave of court or by written consent of the
adverse party; and leave shall be freely given
when justice so requires.
N.C.R. Civ. P. 15(a). Here, plaintiff sought “leave of court” to
amend her complaint. In its order, the trial court held, in part,that “any attempt by Plaintiff to seek amendment by the Court would
be futile in that the amendment would not relate back to the
original filing of the Complaint.” However, the relation back
principle “only applies where the complaint is amended outside the
relevant statute of limitations. It need not be considered where
a pleading is amended before the statute of limitations expires.”
Simpson v. Hatteras Island Gallery Restaurant, 109 N.C. App. 314,
324, 427 S.E.2d 131, 138, disc. review denied, 333 N.C. 792, 431
S.E.2d 27 (1993). Instead, the issue is whether plaintiff filed
her motion for leave to amend within the applicable statute of
limitations period. “The relevant date for measuring the statute
of limitations where an amendment to a pleading is concerned . . .
is the date of the filing of the motion, not the date the court
rules on that motion.” Simpson, 109 N.C. App. at 325, 427 S.E.2d
at 138 (italics in original). Causes of action for emotional
distress must be brought within three years from the date on which
the action accrues. See N.C.G.S. § 1-52(5) (1999); Russell v.
Adams, 125 N.C. App. 637, 640, 482 S.E.2d 30, 33 (1997). Here, the
earliest date on which plaintiff's claim could have accrued is the
date of the alleged incident, or mid-September of 1996. See
N.C.G.S. § 1-52(16) (1999). Even assuming plaintiff's claim did
accrue at the earliest possible date, plaintiff's motion for leave
to amend, filed 30 August 1999, was filed prior to the running of
the three-year statute of limitations. Thus, the court erred in
concluding that any attempt by plaintiff to amend her complaint
would have been futile. [2]We next address the trial court's conclusion that “there
has been no proper amendment of the Complaint alleging claims
against Defendant Jeannie Young.” It appears from the record that
the trial court failed to rule on plaintiff's motion for leave to
amend. The trial court's decision to rule on Young's motion to
dismiss before ruling on plaintiff's motion for leave to amend
constitutes reversible error. “The Rules of Civil Procedure
achieve their purpose of assuring a speedy trial by providing for
and encouraging liberal amendments to the pleadings under Rule 15.”
Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 714, 220
S.E.2d 806, 809 (1975), disc. review denied, 289 N.C. 619, 223
S.E.2d 396 (1976). “Failure to rule on a motion to amend
contravenes this purpose by inviting piecemeal litigation and
preventing consideration of the merits of the action on all the
evidence available.” Carolina Builders v. Gelder & Associates, 56
N.C. App. 638, 640, 289 S.E.2d 628, 629 (1982). The trial court
should have declined to rule on Young's motion to dismiss until
after ruling on plaintiff's motion.
[3]We further hold that plaintiff's motion for leave to amend
should have been allowed here. As noted above, Rule 15(a) of the
Rules of Civil Procedure states that leave to amend pleadings
“shall be freely given when justice so requires.” Where a
plaintiff moves to amend a pleading in order to add a defendant to
the lawsuit, there must be a claim asserted against the proposed
defendant which “aris[es] out of the same transaction, occurrence,
or series of transactions or occurrences” underlying the claimasserted against the original defendant. See N.C.R. Civ. P. 20(a
);
Coffey v. Coffey, 94 N.C. App. 717, 721, 381 S.E.2d 467, 470
(1989). In addition, the plaintiff must provide notice of the
motion to the existing parties. See Coffey, 94 N.C. App. at 721,
381 S.E.2d at 470. These requirements were satisfied here. Even
where these requirements are satisfied, however, leave to amend a
pleading may be properly denied under certain circumstances,
including but not limited to undue delay, bad faith on the part of
the movant, or undue prejudice to the opposing party by virtue of
allowance of the amendment. See Public Relations, Inc. v.
Enterprises, Inc., 36 N.C. App. 673, 678, 245 S.E.2d 782, 785
(1978). Here, we perceive no apparent reason why plaintiff's
motion for leave to amend her complaint should be denied,
particularly since plaintiff could have filed a separate action
against Young and then moved to consolidate that action with her
original suit against McKecuen. Accordingly, we remand for the
trial court to enter an order granting plaintiff's motion to amend.
[4]We turn now to the question of whether the trial court
erred in determining that “the Amended Complaint fails to state a
claim for which relief can be granted against Defendant Jeannie
Young.” Young asserts as a defense in her answer that plaintiff's
complaint fails to state a claim upon which relief may be granted,
and that plaintiff's action against Young should therefore be
dismissed pursuant to Rule 12(b)(6). “The question presented by a
motion to dismiss is whether, as a matter of law, the allegations
of the complaint, treated as true, are sufficient to state a claimupon which relief may be granted.” Driver v. Burlington Aviation,
Inc., 110 N.C. App. 519, 524, 430 S.E.2d 476, 480 (1993).
Furthermore, in analyzing the sufficiency of a complaint to
withstand a Rule 12(b)(6) motion, the complaint must be liberally
construed and should not be dismissed for insufficiency unless it
appears to a certainty that the plaintiff is entitled to no relief
under any state of facts which could be proved in support of the
claim. Id.
With respect to Young, plaintiff's amended complaint alleges
three causes of action: IIED, NIED, and civil conspiracy to deprive
plaintiff of her civil rights as a woman in violation of G.S. §
99D-1. The essential elements of the tort of IIED are (1) extreme
and outrageous conduct, (2) which is intended to cause and does
cause (3) severe emotional distress to another. See Dickens v.
Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). To state
a claim for NIED, a plaintiff must allege (1) negligent conduct on
the part of defendants, (2) which defendants should have reasonably
foreseen would cause plaintiff severe emotional distress, and (3)
that the conduct did actually cause plaintiff to suffer severe
emotional distress. See Andersen v. Baccus, 335 N.C. 526, 531, 439
S.E.2d 136, 139 (1994). G.S. § 99D-1 provides a civil cause of
action where two or more persons, motivated by gender, conspire to
interfere with the exercise or enjoyment by any other person of a
constitutional right, and where one or more persons engaged in the
conspiracy, in order to commit any act in furtherance of the
conspiracy, uses force, repeated harassment, violence, physicalharm, or threats of physical harm. See G.S. § 99D-1.
The facts alleged in plaintiff's complaint and amended
complaint, taken as true, indicate the following: that Young was
responsible for mixing the drinks which rendered plaintiff
physically helpless; that Young knew or should have known that
plaintiff became physically helpless, and later unconscious, after
ingesting the drinks; that Young said to Sanderlin, “It's all
yours, Al” and, “I need to know which way you're going on this,
because I've got money riding on it”; that Young was present while
plaintiff, physically helpless, was stripped naked, filmed, carried
to the sofa gasping for air, examined by a paramedic, and removed
from the house by Sanderlin; that Young later sought to conceal her
involvement in the incident despite knowing that the incident was
the subject of a potential criminal investigation; and that after
plaintiff reported the incident, Young along with the other two
defendants acted upon a common scheme to harass and discredit
plaintiff, and to destroy evidence and obstruct justice, in
furtherance of the common scheme to interfere with plaintiff's
exercise and enjoyment of her civil rights as a woman.
Furthermore, plaintiff's amended complaint specifically alleges
that defendants' conduct was “committed with reckless disregard,”
was “intentional,” and constituted “extreme and outrageous conduct
exceeding all bounds of decency tolerated by society” and was
“intended to cause and did cause emotional and mental distress” to
plaintiff. Plaintiff also states in her amended complaint that she
has suffered extreme emotional distress as a proximate cause of
defendants' acts, including anxiety disorder, depression, and post-traumatic stress disorder.
Plaintiff's allegations, taken as true, are sufficient to
state claims against Young for IIED, NIED, and a violation of G.S.
§ 99D-1, and it was error for the trial court to dismiss these
claims. The trial court's order dismissing plaintiff's claims as
to defendant Young is therefore reversed and we remand for further
proceedings.
Reversed.
Judges WYNN and TIMMONS-GOODSON concur.
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