An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-844


Filed: 7 June 2005



v .                         Guilford County
                            No. 02 CVS 5841


    Appeal by plaintiffs from an order entered 25 February 2004 by Judge Anderson Cromer in Guilford County Superior Court. Heard in the Court of Appeals 8 March 2005.

    Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff-appellants.

    Womble Carlyle Sandridge & Rice, P.L.L.C., by James M. Powell, Lucretia D. Guia, and J. Mark Sampson, for defendant- appellees.

    ELMORE, Judge.

    Kimberly and Scott Coremin (plaintiffs) are former sales representatives of Precedent Furniture (Precedent), a district division of defendant Sherrill Furniture Company (Sherrill Furniture). Plaintiffs, a married couple, worked according to contracts with Sherrill Furniture. Defendant Ralph “Woody” Williams was, at all times relevant to this action, the chief executive officer of Precedent.     On 25 April 2001, Williams held a meeting with plaintiffs to address their criticism of a new furniture line introduced earlier that day. Williams informed plaintiffs that he had spoken with Buddy Sherrill, owner of Sherrill Furniture, and that their sales relationship with the company would be terminated if plaintiffs did not change their negative attitude.
    Plaintiff Kim Coremin thereafter complained of sexual harassment by Williams to Mike Powers, chief financial officer of Sherrill Furniture. Powers met with plaintiffs to discuss the sexual harassment incidents involving Kim Coremin and then interviewed several other employees of Precedent as part of his investigation of the complaint. Mike Powers reported his findings to Buddy Sherrill but did not recommend any specific course of action regarding Williams. Kim Coremin testified that no further incidents of sexual harassment occurred after this investigation.
    Plaintiffs requested a formal meeting with Buddy Sherrill and Mike Powers, which occurred on 23 July 2001. Melanie Cooper, the vice president of creative design at Sherrill Furniture, was also present at this meeting. Buddy Sherrill asked Kim Coremin to go through the allegations one by one. Once Kim had finished, Melanie Cooper questioned her about the context of Williams's comments. Ms. Cooper asked Kim why she had permitted another male employee, Larry Payne, to “hug and grab [her] on the ass” and was able to laugh off that conduct but not the actions of Williams. Ms. Cooper also inquired about an incident where Kim playfully flicked the handcuffs of a police officer outside where company employees wereunloading furniture prior to a market. At the conclusion of the meeting, Kim Coremin requested that Williams be terminated.
    At the 2001 fall furniture market, Scott Coremin and Andy Leeds, the former Director of Sales and Marketing at Sherrill Furniture, were involved in a dispute which resulted in Scott pushing Andy up against the wall. Williams, standing in a nearby room, observed the incident and intervened. After learning of this incident two days later, Buddy Sherrill spoke to Andy Leeds about it. Immediately thereafter, Buddy notified plaintiffs that he was terminating their relationship with Sherrill Furniture.
    Plaintiffs filed their complaint on 12 April 2002 in Guilford County Superior Court. Plaintiffs Kim and Scott Coremin alleged tortious interference with contract and unfair and deceptive trade practices against Williams and Sherrill Furniture. Kim Coremin also alleged the following claims: intentional infliction of emotional distress (against Williams and Sherrill Furniture); negligent retention and supervision (against Williams and Sherrill Furniture); and slander per se (against Melanie Cooper and Sherrill Furniture). On 13 November 2003, defendants filed a motion for summary judgment. The summary judgment hearing was scheduled for 9 January 2004, and plaintiff Kim Coremin submitted an affidavit on 7 January 2004. The trial court granted defendants' summary judgment motion on all claims. From this order entered 25 February 2004, plaintiffs appeal.
    We review plaintiffs' arguments on each claim separately. Summary judgment is properly granted 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) (2003). “A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982).
     I. Intentional Infliction of Emotional Distress
    The elements of an action for intentional infliction of emotional distress (IIED) are “1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quotation omitted). “Conduct is extreme and outrageous when it is 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Guthrie v. Conroy, 152 N.C. App. 15, 22, 567 S.E.2d 403, 408 (2002) (quoting Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985)). The determination of whether conduct rises to the level of extreme and outrageous is a question of law. Id. at 21, 567 S.E.2d at 408. In the context of alleged sexual harassment as the conduct underlying a claim for IIED, a plaintiff may create agenuine issue of material fact as to whether the conduct was extreme and outrageous if the evidence shows:
        an unfair power relationship between defendant and plaintiff; explicitly obscene or “X rated” language; sexual advances towards plaintiff; statements expressing desire to engage in sexual relations with plaintiff, or; defendant either touching plaintiff's private areas or touching any part of the plaintiff's body with his private parts.

Id. at 23, 567 S.E.2d at 409 (citations omitted) (reviewing case law on IIED claims based upon allegations of sexual harassment).     Here, the evidence shows the following incidents in support of plaintiff Kim Coremin's IIED claim: Williams touched Kim's hair, shoulders, and the small of her back; in the presence of both plaintiffs, Williams told Kim that she had a great figure for her appetite and remarked to Scott that he liked her legs; after Kim blew drywall dust off of a catalog, Williams stated, “Scott, you never told me that Kim gave blow jobs[]”; and while Kim was standing on a ladder, Williams stood below her with his face near hear buttocks.   (See footnote 1)  In each instance, the conduct fell short of sexual touching, sexual advances, or “X rated” obscene language. The “blow job” comment, although insulting and offensive, does not constitute conduct which is so egregious as to go “beyond all possible bounds of decency.” See Guthrie, 152 N.C. App. at 22, 567S.E.2d at 408 (stating that “mere insults, indignities, and threats” are not extreme and outrageous acts).     
    Plaintiff Kim Coremin presents no evidence that Williams made sexual advances, touched his private parts to her body, or touched her private parts. Cf. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 490-91, 340 S.E.2d 116, 121, disc. review denied, 317 N.C. 334, 346 S.E.2d 141 (1986) (summary judgment improper where plaintiff's evidence of extreme and outrageous conduct showed that co-worker asked her to have sex with him, rubbed his penis against her buttocks and touched her buttocks with his hands).
    The remaining “facts” plaintiffs allege as supporting the IIED claim are contradictory to Kim Coremin's deposition testimony. In particular, plaintiffs state that Williams asked a male sales representative at the April 2000 furniture market if he was trying to “score” with Kim. However, Kim Coremin testified in her deposition that when Williams overheard the sales representative offer to mail some catalogs to Kim's house to assist her in purchasing new lamps for the showroom, Williams asked him if he was trying to “score brownie points” with her. Thus, the comment was not of a sexual nature as implied by plaintiffs in their brief. This Court has previously held that “a party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.” Pinczkowski v. Norfolk S. Ry. Co., 153 N.C. App. 435, 440, 571 S.E.2d 4, 7 (2002). Accordingly, we do not consider the “facts”presented by plaintiffs which contradict the previously submitted deposition testimony.
    As plaintiffs have failed to present sufficient evidence of the extreme and outrageous element necessary to maintain a claim for IIED, the trial court properly granted summary judgment to defendants on this claim.
    II. Negligent Retention
    Next, plaintiffs allege that Sherrill Furniture retained Williams and failed to adequately supervise him following notice of the sexual harassment allegations against him. However, plaintiffs' claim for negligent retention and supervision must fail because they cannot maintain the IIED tort claim against Williams. See Hogan, 79 N.C. App. at 496-97, 340 S.E.2d at 124-25 (where evidence does not establish that employee of defendant committed tortious act alleged, intentional infliction of emotional distress, plaintiff may not maintain action against defendant employer based upon negligence in retaining the employee).
    III. Slander Per Se
    Next, plaintiffs contend that the statements by Melanie Cooper during the 23 July 2001 meeting constitute slander per se. In North Carolina, “[s]lander per se is an oral communication to a third person which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease.” Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C.App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. review denied, 340 N.C. 115, 456 S.E.2d 318 (1995).
    Here, the statements by Melanie Cooper at the July 2001 meeting do not fall into one of these three categories. Specifically, the statement regarding Kim's allegedly flirting with and expressing affections to a male co-worker does not impeach Kim in her business capacity. See Johnson v. Bollinger, 86 N.C. App. 1, 10, 356 S.E.2d 378, 384 (1987) (statement must “touch” plaintiff in respect to his business occupation or trade). Furthermore, plaintiffs concede in their brief that the statements made by Ms. Cooper are subject to a qualified privilege. Indeed, Ms. Cooper was speaking in her capacity as a vice president of Sherrill Furniture during an internal investigation into sexual harassment allegations. As such, it was incumbent upon plaintiffs to set forth specific facts to show that Ms. Cooper acted with actual malice. See Dobson v. Harris, 352 N.C. 77, 86, 530 S.E.2d. 829, 836-37 (2000) (in order to overcome qualified privilege, plaintiff must present more than conclusory, subjective allegation that defendant acted with actual malice). Plaintiffs have failed to negate the good faith presumption of qualified privilege, and the trial court properly granted summary judgment on this claim.
    IV. Tortious Interference with Contractual Rights
    The requisite elements of an action for interference with contract are:
        (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of thecontract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff.

United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988).
    First, plaintiffs contend that Sherrill Furniture is liable for the tort of interference with contract; however, this Court has held that a plaintiff cannot maintain an action for interference with contract against a party to that contract. See Wagoner v. Elkin City Schools' Bd. of Education, 113 N.C. App. 579, 587, 440 S.E.2d 119, 124 (citing Smith v. Ford Motor Co., 289 N.C. 71, 87, 221 S.E.2d 282, 292 (1976)), disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). As such, plaintiffs' claim against Sherrill Furniture, a party to the contracts, must fail. Second, plaintiffs assert a claim of tortious interference with contract against Williams, alleging that Williams and Andy Leeds “contrived an altercation [with Scott Coremin] as a basis for terminating the [plaintiffs'] contract.”
    A “non-outsider” to a contract, such as a manager or supervisor with a legitimate business interest in the subject matter of the contract, may be liable for interference with contract only if he acted with legal malice. See Smith v. Ford Motor Co., 289 N.C. 71, 87-88, 221 S.E.2d 282, 292 (1976) (defining non-outsider); Varner v. Bryan, 113 N.C. App. 697, 702, 440 S.E.2d 295, 298 (1994) (explaining legal malice standard applicable to non-outsider). Accordingly, “[t]he plaintiff's evidence must showthat the defendant acted without any legal justification for his action.” Varner, 113 N.C. App. at 702, 440 S.E.2d at 298. Here, plaintiffs set forth no specific facts to support their allegation that Williams reported the incident between Scott Coremin and Andy Leeds for retaliatory purposes, rather than legitimate business reasons. Additionally, plaintiffs cannot forecast evidence that Williams induced Buddy Sherrill to terminate plaintiffs' contracts. See Dalton v. Camp, 353 N.C. 647, 655, 548 S.E.2d 704, 710 (2001) (where nothing in record shows inducement by defendant beyond mere speculation, plaintiff has failed to establish essential element of tortious interference with contract). Indeed, Buddy Sherrill testified that he did not speak to Williams at any time in the period between the Leeds incident and plaintiffs' termination. Therefore, plaintiffs cannot establish prima facie evidence of each element of their claim for tortious interference with contract. V. Unfair and Deceptive Trade Practices
    “In order to establish a prima facie claim for unfair trade practices [under N.C. Gen. Stat. § 75-1.1], a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff.” Dalton, 353 N.C. at 656, 548 S.E.2d at 711. Slander per se and tortious interference with contract are unfair or deceptive acts or practices within the meaning of the statute. See Ausley v. Bishop, 133 N.C. App. 210, 515 S.E.2d 72 (1999); United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988). Here, plaintiffs have not forecast evidence of any fraudulent act or other tortious conduct by Williams or Sherrill Furniture coming within the purview of N.C. Gen. Stat. § 75-1.1. In particular, plaintiffs cannot forecast prima facie evidence of their claims for slander per se or contractual interference. Thus, plaintiffs have failed to show the existence of an unfair act or practice.
    In sum, defendants have established that plaintiffs cannot produce evidence to support each essential element of their claims. The trial court, therefore, properly granted summary judgment to defendants in this matter.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
     Kim Coremin also testified that Williams rubbed a magazine picture of a naked woman over his crotch. However, she stated that this incident occurred in a crowd of sales associates at a company party. Evidence of this particular incident does not support the IIED claim, as Williams's gesture was not directed at her. See Briggs, 73 N.C. App. at 678, 327 S.E.2d at 312.

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