AMY MCCOMB,
Plaintiff,
v
.
New Hanover County
No. 04 CVS 3250
KENNETH PHELPS,
Defendant.
Bruce H. Robinson, Jr., for plaintiff-appellant.
Pennington & Smith, P.L.L.C., by Ralph S. Pennington, for
defendant-appellee.
HUDSON, Judge.
On 18 August 2004, plaintiff Amy McComb filed a civil
complaint against defendant Kenneth Phelps, alleging fraud and
intentional infliction of emotional distress. Defendant filed a
motion to dismiss the claims pursuant to N.C. R. Civ. P. 12(b)(6)
on 22 October 2004, which motion the court granted on 7 December
2004. Plaintiff appeals. As discussed below, we affirm.
Beginning in 1990, plaintiff began an affair with defendant,
a married man who told plaintiff he was single. Several years
later, plaintiff discovered defendant was married and broke up with
him, but after defendant claimed he was only remaining with his
wife until their daughter was of age, plaintiff agreed to resumethe relationship. Defendant did not leave his wife when his
daughter turned eighteen, and after the daughter turned twenty-one,
plaintiff angrily confronted defendant. Defendant hired an
attorney to send plaintiff a letter instructing her to stay away
from him and his family, and threatening legal action, including
claims for “harassment, intentional infliction of emotional
distress, alienation of affection, criminal conversation, and other
causes of action.” The letter concluded with a statement that if
plaintiff ever contacted defendant's daughter again, “I will serve
you with a lawsuit that will make your head swim. She is just a
child. How dare you write such a nasty and vulgar letter to her?
Shame on you.”
Plaintiff argues that the court erred in dismissing her claims
pursuant to N.C. R. Civ. P. 12(b)(6). Our standard of review for
a motion to dismiss pursuant to Rule 12(b)(6) is “whether, as a
matter of law, the allegations of the complaint, treated as true,
are sufficient to state a claim upon which relief may be granted
under some legal theory.” Block v. County of Person, 141 N.C. App.
273, 277, 540 S.E.2d 415, 419 (2000) (internal quotations and
citations omitted). In addition, “[t]he complaint must be
liberally construed, and the court should not dismiss the complaint
unless it appears beyond a doubt that the plaintiff could not prove
any set of facts to support his claim which would entitle him to
relief.” Id. at 277-78, 540 S.E.2d at 419.
Plaintiff states in her brief that she has abandoned her fraud
claim on appeal. Thus we address only her claim of intentionalinfliction of emotional distress. To recover under the tort of
intentional infliction of emotional distress (“IIED”), a plaintiff
must allege “(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). “Liability arises under this tort when a defendant's
'conduct exceeds all bounds usually tolerated by decent society'
and the conduct 'causes mental distress of a very serious kind.'”
Id. at 447, 276 S.E.2d at 331 (internal citations omitted).
Whether plaintiff alleges conduct which can be considered extreme
and outrageous is a matter of law, and we review this determination
de novo. Guthrie v. Conroy, 152 N.C. App. 15, 21, 567 S.E.2d 403,
408 (2002). Only if the court finds that the behavior could be
considered extreme and outrageous does the complaint properly
withstand dismissal. Id. Behavior which is “annoyingly juvenile,
obnoxious, and offensive, does not rise to the level of 'outrageous
and extreme.'” Id. at 24, 567 S.E.2d at 410.
In her brief, plaintiff focuses her argument entirely on the
letter she received from defendant's counsel, which threatened
lawsuits if plaintiff did not leave defendant alone. Plaintiff
does not attempt to argue that defendant's actions or promises
during their affair constituted IIED. We thus consider whether the
letter sent by defendant's counsel constitutes extreme and
outrageous conduct attributable to defendant. An attorney's threat
to file suit, in itself, does not constitute extreme and outrageous
conduct. Burton v. NCNB Nat'l Bank, 85 N.C. App. 702, 707, 355S.E.2d 800, 803 (1987); Harris v. NCNB Nat'l Bank, 85 N.C. App.
669, 676, 355 S.E.2d 838, 844 (1987) (“sending a letter of demand
to an adverse party in anticipation of litigation together with a
proposed complaint setting forth the basis of its claim may not be
reasonably regarded as extreme and outrageous conduct sufficient to
support a claim for intentional infliction of mental distress.”)
In Johnson v. Bollinger, the plaintiff alleged that defendant, an
armed animal warden, “'approached plaintiff . . . in an angry,
hostile and threatening manner' . . . 'shook his hand in the
plaintiff's face and said in a loud, rude and offensive manner . .
., 'You are a stupid son-of-a-bitch,' and 'You are a liar,' and
stated further 'I will get you.'”. Johnson v. Bollinger, 86 N.C.
App. 1, 3, 356 S.E.2d 378, 380 (1987). This Court held that this
conduct did not rise to the level of extreme and outrageous
conduct, noting that:
The liability clearly does not extend to mere
insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. The
rough edges of our society are still in need
of a good deal of filing down, and in the
meantime, plaintiffs must necessarily be
expected and required to be hardened to a
certain amount of rough language, and to
occasional acts that are definitely
inconsiderate and unkind. There is no occasion
for the law to intervene in every case where
someone's feelings are hurt. There must still
be freedom to express an unflattering opinion.
. . .
Id. at 6, 356 S.E.2d at 382 (citing 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)). We believe that the assertion that “I will serve you with a
lawsuit that will make your head swim,” while arguably
unprofessional, does not exceed the comments discussed in Johnson
v. Bollinger, supra, nor is it an example of “conduct [that]
exceeds all bounds usually tolerated by decent society.” Nor do
the comments in the letter chastising plaintiff for involving
defendant's daughter in the dispute, while perhaps unnecessarily
personal, rise to the level of extreme and outrageous. Because the
court properly concluded that plaintiff had failed to allege the
elements of a claim of intentional infliction of emotional
distress, dismissal pursuant to Rule 12(b)(6) was appropriate.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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