Appeal by plaintiffs and cross-appeal by defendants from order
entered 13 June 2005 by Judge Lindsay R. Davis, Jr. and appeal by
defendants from order entered 20 August 2004 by Judge A. MosesMassey in Forsyth County Superior Court. Heard in the Court of
Appeals 9 May 2006.
Gray Newell, LLP, by Angela Newell Gray, for plaintiffs.
Carruthers & Roth, P.A., by Jack B. Bayliss, Jr. and William
J. McMahon, for defendants.
This appeal arises out of an order of the trial court granting
summary judgment to defendants in part, denying summary judgment in
part, and excluding one of plaintiffs' expert witnesses. All
parties have appealed. Because this is an interlocutory appeal, we
have limited our review only to those questions over which we have
jurisdiction: (1) the entry of summary judgment on all of Freida
Foster's claims; and (2) the entry of summary judgment on
plaintiffs' claims for punitive damages. We dismiss the parties'
appeals with respect to the remaining issues since they are not
properly the subject of a Rule 54(b) certification and do not
affect a substantial right.
With respect to Foster's claims, we hold that she has
presented sufficient evidence to raise an issue of fact as to
whether she has complied with the statute of limitations and the
statute of repose. We agree with defendants, however, that she has
submitted sufficient evidence to support only a negligent
infliction of emotional distress ("NIED") claim against defendant
Jason M. Crandell, M.D. The trial court's entry of summary
judgment is, therefore, reversed only as to Foster's NIED claimagainst defendant Crandell. We also uphold the trial court's entry
of summary judgment as to plaintiffs' punitive damages claims based
on plaintiffs' failure to forecast sufficient evidence to meet the
standard for punitive damages set forth in N.C. Gen. Stat. § 1D-
In the early 1990s, Michael Rivest was the pastor of a small
congregation of the Charismatic Episcopal Church and had
established Isaiah 61 Ministries, Inc. ("Isaiah 61"), which was
providing Christian counseling as the St. Matthew's Institute for
Healing and Growth ("St. Matthew's Institute"). In 1994, Crandell
agreed to work more closely with Rivest as a referral for any of
Rivest's clients who could potentially benefit from medical
Crandell thereafter became the medical director of Isaiah 61,
and a brochure for Isaiah 61 and St. Matthew's Institute listed him
as the organization's psychiatrist. In that position, Crandell
provided general advice on conducting a counseling practice, made
periodic review of Rivest's counseling reports, and answered
counseling-related questions from Rivest and other counselors at
Isaiah 61. From late 1996 until 2001, Crandell was also involved
in a Bible-study group with Rivest and was Rivest's personal
In June 1995, the North Carolina Board of Licensed
Professional Counselors (the "Board") sent Rivest a letter
directing him to cease and desist from providing counselingservices, as he appeared to be engaged in the unlicensed practice
of counseling in violation of the North Carolina Licensed
Professional Counselors Act. Rivest responded to the Board by
stating that he was under the "direct supervision" of Crandell.
Crandell sent a similar letter to the Board, noting that he was
employed by Isaiah 61 "to provide a supervisory relationship" to
Rivest and, therefore, that Rivest was exempted from the Act's
licensure requirement under N.C. Gen. Stat. § 90-332.1(a)(4) (2005)
(stating that the Act does not apply to "[a]ny person counseling as
a supervised counselor in a supervised professional practice").
The Board agreed to this arrangement and sent Rivest a letter
stating that he was exempt from the Act.
In September 1996, however, the Board sent Crandell another
letter indicating that it had reinterpreted the exemption found in
N.C. Gen. Stat. § 90-332.1(a)(4) for supervised unlicensed
counseling. The Board's new interpretation construed the exemption
as applying only to counselors who were under temporary supervision
while attempting to meet the licensure requirements of N.C. Gen.
Stat. § 90-336(b)(2) (2005). According to Crandell, he then
terminated his employment with Isaiah 61, but continued to review
counseling session reports "[a]s a courtesy" until 1998.
Plaintiffs, on the other hand, contend Crandell's supervisory
relationship extended beyond 1998 for an unspecified period.
In December 1998, the Board sent Rivest another cease and
desist letter, copied to Crandell, that again noted N.C. Gen. Stat.
§ 90-332.1(a)(4) no longer applied to Rivest's situation. Rivest'sresponse, also copied to Crandell, stated that Isaiah 61 and St.
Matthew's Institute were no longer charging fees for counseling
services, and, therefore, were now exempt from the Act under N.C.
Gen. Stat. § 90-332.1(a)(5) (stating that the Act does not apply to
"[a]ny ordained minister or other member of the clergy while acting
in a ministerial capacity who does not charge a fee for the
service"). Foster later testified that, in lieu of fees, she and
the other plaintiffs were, at that time, expected to make
"donations" to Rivest for his counseling services.
Plaintiff Tami Borland began Christian counseling at the St.
Matthew's Institute in 1994 in an effort to save her marriage.
After first receiving counseling from another counselor, Borland
began regular counseling with Rivest's wife, Kathleen. By 1996,
however, Borland had begun counseling exclusively with Rivest and,
by 1997, had joined his religious sect, the "Cistercian Oblates,"
which required that she wear a nun's habit.
In 1998, Rivest informed Borland that he believed she was
experiencing "stigmata pain," which, according to Rivest, was "pain
associated with that of Christ when Christ was nailed to the
cross." Rivest told Borland that she needed medication and
personally took her to see Crandell. Rivest explained that he "had
a business relationship" with Crandell in which Crandell supervised
Rivest's counseling sessions, reviewed his counseling notes and
records, served as his advisor, and "sign[ed] off" on everything
Rivest did. While in Crandell's office, Rivest explained stigmata pain and
provided Crandell "with literature and written documents that
pertained to stigmata so that Dr. Crandell could educate himself .
. . ." Crandell explained to Borland that Rivest was "very
qualified" and that "he deferred to [Rivest's] recommendations on
a regular basis with regard to diagnoses." Crandell also told
Borland that, if Rivest believed she was experiencing stigmata
pain, then that was surely the source of her problem. Crandell
thereafter started Borland on a treatment plan that included
medication and regular counseling sessions with Crandell to "talk
about [the] pain associated with [her] stigmata."
In early 2000, Borland had a falling out with Rivest and
terminated their relationship. Although she continued her sessions
with Crandell, she became concerned that he was communicating with
Rivest about her therapy without her permission. When Borland
expressed this concern to Crandell in February 2000, he advised her
that she should "seek treatment elsewhere because he did have an
on-going supervisory relationship" with Rivest. Crandell
thereafter referred Borland to another mental health facility.
Plaintiff Kathy Bowen began grief counseling with Rivest in
1997, following the death of her mother. Rivest told Bowen that he
and Crandell "had a psychiatric/counseling business" and that
Crandell oversaw Rivest's counseling and advised Rivest with
respect to all of his clients. Bowen was ultimately treated by
both Rivest and Crandell. During several of her therapy sessions
with Crandell, he indicated to Bowen that he was "aware ofeverything that was going on with [her]" because "he shared
information with . . . Rivest due to his supervisory relationship
over Rivest." Bowen also joined the Cistercian Oblates and began
wearing a nun's habit.
In July 1999, Rivest notified Bowen in writing that he had
"consulted today with both our Medical Director and Clinical
Supervisor regarding [her] case," and that they had concluded her
therapy sessions should be terminated. A copy of the letter was
sent to Crandell. Bowen ended her relationship with both Rivest
and Crandell in 2000. Nevertheless, in April 2001, after not
having treated Bowen as a patient for nearly six months and just
after she had filed a complaint with the Charismatic Episcopal
Church alleging sexual abuse by Rivest, Crandell unexpectedly
called Bowen at home and asked if she "needed [any] medication."
In 1998, following the death of her fiancée, plaintiff Frieda
Foster began grief counseling with Rivest. Rivest told her that
Crandell provided Rivest with "outside supervision" and, according
to Rivest, reviewed Rivest's counseling notes, was aware of matters
discussed in therapy, and assisted Rivest with developing treatment
plans. Rivest told Foster that, if it became necessary during her
counseling for her to receive medication, Rivest could refer her to
Foster continued to seek treatment with Rivest over the
following year, visited his church, and soon also wore a nun's
habit as a member of the Cistercian Oblates, which by that time
consisted entirely of Rivest, Borland, Bowen, and Foster. By mid-1999, Foster had become estranged from her family, who believed she
was developing an obsession with Rivest, and was attending
counseling with Rivest five to six days per week. By 2000, Foster
had given Rivest over $50,000.00.
Foster ultimately began to doubt the efficacy of Rivest's
counseling services and terminated their relationship in 2001.
Although Rivest had mentioned Crandell to Foster several times, she
never had a conversation with Crandell pertaining to her therapy,
and Crandell never took part in her counseling sessions with
On 26 October 2001, Borland, Bowen, and Foster filed suit
against Isaiah 61 and Rivest, each alleging: (1) Rivest had taken
"certain indecent liberties" with them that "were intended for the
sexual gratification of Rivest"; (2) they had engaged in "intimate
acts" with Rivest "involuntarily and without consent"; and (3)
Rivest had used "mind control techniques, threats and intimidation
to illegally obtain money" from them. The parties settled in May
2004, and Borland, Bowen, and Foster voluntarily dismissed their
suit against Rivest and Isaiah 61 with prejudice on 9 June 2004.
On 27 December 2002, prior to their settlement with Rivest and
Isaiah 61, Borland, Bowen, and Foster filed their initial suit (02
CVS 8569) against Crandell and his employer, PsiMed, P.A. In their
complaint, plaintiffs again alleged inappropriate acts by Rivest,
but also added allegations regarding Crandell's supervisory
authority over Rivest's practices, claiming they were entitled to
recover for the injuries they incurred under Rivest's counselingfrom Crandell as a result of his inadequate supervision of Rivest
and from PsiMed as a result of its inadequate supervision of
On 16 June 2003, plaintiffs voluntarily dismissed that action
without prejudice pursuant to N.C.R. Civ. P. 41(a)(1)(i). They
subsequently filed a second action (04 CVS 3741) against Crandell
and PsiMed on 14 January 2004, containing substantially the same
allegations. Plaintiffs amended their complaint on 16 September
2004 to provide additional detail with respect to Crandell's
supervision of Rivest.
After answering plaintiffs' complaint, defendants moved for
judgment on the pleadings, claiming that plaintiffs' prior
settlement with Rivest and Isaiah 61 precluded recovery in this
action. Judge A. Moses Massey denied defendants' motion on 20
August 2004. On 18 April 2005, following discovery, defendants
moved for summary judgment, again arguing, among other grounds,
that the prior settlement barred plaintiffs' recovery, but also
seeking judgment on all of plaintiffs' claims based on the statute
of limitations, the statute of repose, and insufficient evidence.
In addition, defendants moved to exclude the testimony of
plaintiffs' two expert witnesses: clinical pharmacist Thomas E.
Henry, III and psychiatrist Dr. James F. T. Corcoran.
On 13 June 2005, Judge Lindsay R. Davis, Jr. entered an order
(the "Partial Summary Judgment Order") and a detailed memorandum of
decision. With respect to the effect of the prior settlement,
Judge Davis ruled that defendants' motion for summary judgmentpresented no new arguments and resolution of the motion in
defendants' favor on that basis would effectively overrule Judge
Massey's order. For that reason, Judge Davis denied defendants'
motion for summary judgment to the extent it relied on the prior
As for Foster's claims, the trial court determined that they
were barred by the four-year statute of repose for medical
malpractice actions and, therefore, granted defendants summary
judgment as to those claims. The court concluded that Borland's
and Bowen's claims were not time-barred and that Borland and Bowen
had presented sufficient evidence to defeat summary judgment except
for their claim of negligence in the management of their
(See footnote 1)
The trial court further granted summary judgment as
to plaintiffs' claims for punitive damages.
Plaintiffs and defendants have both appealed from the Partial
Summary Judgment Order. Additionally, defendants have appealed
from Judge Massey's order denying their motion for judgment on the
Interlocutory Nature of the Appeal
 We first observe that this appeal is interlocutory. An
order is interlocutory if it does not dispose fully of a case, but
rather requires further action by the trial court in order tofinally determine the rights of all the parties involved in the
controversy. Veazey v. City of Durham,
231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950). Because the Partial Summary Judgment Order
left intact Borland's and Bowen's claims for intentional and
negligent infliction of emotional distress, negligent supervision,
and medical malpractice, the parties' appeal is interlocutory. See
Liggett Group Inc. v. Sunas
, 113 N.C. App. 19, 23, 437 S.E.2d 674,
677 (1993) ("A grant of partial summary judgment, because it does
not completely dispose of the case, is an interlocutory order from
which there is ordinarily no right of appeal.").
This Court has jurisdiction over an interlocutory appeal only
if (1) the trial court certified the order for immediate review
under North Carolina Rule of Civil Procedure 54(b), or (2) the
order affects a substantial right that would be lost without
immediate review. Embler v. Embler
, 143 N.C. App. 162, 164-65, 545
S.E.2d 259, 261 (2001). Here, the Partial Summary Judgment Order
included a Rule 54(b) certification.
Rule 54(b), in pertinent part, provides:
When more than one claim for relief is
presented in an action, . . . the court may
enter a final judgment as to one or more but
fewer than all of the claims . . . only if
there is no just reason for delay and it is so
determined in the judgment. Such judgment
shall then be subject to review by appeal or
as otherwise provided by these rules or other
N.C.R. Civ. P. 54(b). "Nonetheless, the trial court may not, by
[Rule 54(b)] certification, render its decree immediately
appealable if '[it] is not a final judgment.'" Sharpe v. Worland
,351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (second alteration
original) (quoting Lamb v. Wedgewood South Corp.
, 308 N.C. 419,
425, 302 S.E.2d 868, 871 (1983)).
Since the Partial Summary Judgment Order entered a final
judgment as to all of Foster's claims, her appeal is properly
before this Court pursuant to the trial court's Rule 54(b)
certification. We reach a different conclusion, however, with
respect to the remaining parties' appeals.
Borland's and Bowen's claims premised upon Crandell's alleged
negligent medication management do not represent a separate claim
for relief, but rather constitute simply one factual theory, among
others, as to how Crandell committed medical malpractice. In the
absence of a final judgment on plaintiffs' medical malpractice
claim for relief, there is no basis for appeal under Rule 54(b) of
the exclusion of the negligent medicine management theory.
Likewise, the trial court's evidentiary ruling regarding Mr. Henry
does not constitute a final judgment as to a claim for relief.
Similarly, with respect to both defendants' cross-appeal from
the Partial Summary Judgment Order as well as defendants' appeal
from the order denying their motion for judgment on the pleadings,
no final judgment has been entered with respect to any defendant or
claim for relief. See Yordy v. N.C. Farm Bureau Mut. Ins. Co.
N.C. App. 230, 231, 560 S.E.2d 384, 385 (2002) ("A defense raised
by a defendant in answer to a plaintiff's complaint is not a
'claim' for purposes of Rule 54(b)."). Consequently, the trial
court's Rule 54(b) certification is also ineffective to bringdefendants' appeals properly before this Court. See, e.g.
, Wood v.
, 166 N.C. App. 48, 53, 603 S.E.2d 539, 543 (2004)
(addressing, under Rule 54(b) certification, the plaintiff's appeal
from an order granting the defendants partial summary judgment, but
dismissing the defendants' cross-appeal as interlocutory).
We next turn to the question whether the parties have
demonstrated the existence of a substantial right. The Supreme
Court has previously held that plaintiffs have a substantial right
in having their "claim for punitive damages determined, if at all,
before the same judge and jury which heard the claim for
compensatory damages." Tridyn Indus., Inc. v. Am. Mut. Ins. Co.
296 N.C. 486, 493, 251 S.E.2d 443, 448 (1979). Accordingly, we
have jurisdiction to review the trial court's entry of summary
judgment on the issue of punitive damages. As for Borland's and
Bowen's arguments regarding negligence in medicine management and
the exclusion of Mr. Henry's testimony, they have made no assertion
that those rulings affect a substantial right. An appellant bears
the burden of establishing the existence of a substantial right,
, 143 N.C. App. at 166, 545 S.E.2d at 262, and, as we have
previously stressed, "[i]t is not the duty of this Court to
construct arguments for or find support for appellant's right to
appeal from an interlocutory order . . . ." Jeffreys v. Raleigh
Oaks Joint Venture
, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994). Accordingly, we do not address Borland's and Bowen's
arguments regarding negligent medicine management and the exclusionof Mr. Henry's testimony. They may assert those arguments on any
appeal from the entry of a final judgment.
Defendants, on the other hand, have specifically argued that
both the order denying their motion for judgment on the pleadings
and the Partial Summary Judgment Order affect a substantial right
because, according to defendants, plaintiffs' claims are barred by
res judicata and collateral estoppel as a result of plaintiffs'
settlement and voluntary dismissal with prejudice of their claims
against Rivest and Isaiah 61. When a trial court enters an order
rejecting the affirmative defenses of res judicata and collateral
estoppel, the order "can affect a substantial right and may be
immediately appealed." McCallum v. N.C. Coop. Extension Serv. of
N.C. State Univ.
, 142 N.C. App. 48, 51, 542 S.E.2d 227, 231, appeal
dismissed and disc. review denied
, 353 N.C. 452, 548 S.E.2d 527
(2001). Incantation of the two doctrines does not, however,
automatically entitle a party to an interlocutory appeal of an
order rejecting those two defenses.
This Court has previously limited interlocutory appeals to the
situation when the rejection of those defenses gave rise to a risk
of two actual trials resulting in two different verdicts. See,
, Country Club of Johnston County, Inc. v. U.S. Fid. & Guar.
, 135 N.C. App. 159, 167, 519 S.E.2d 540, 546 (1999) (holding
that an order denying a motion based on the defense of res judicata
gives rise to a "substantial right" only when allowing the case to
go forward without an appeal would present the possibility of
inconsistent jury verdicts), disc. review denied
, 351 N.C. 352, 542S.E.2d 207 (2000); Northwestern Fin. Group, Inc. v. County of
, 110 N.C. App. 531, 536, 430 S.E.2d 689, 692 (holding that
the defense of res judicata gives rise to a "substantial right"
only when there is a risk of two actual trials resulting in two
different verdicts), disc. review denied
, 334 N.C. 621, 435 S.E.2d
337 (1993). One panel, however, has held that a "substantial
right" was affected when defendants raised defenses of res judicata
and collateral estoppel based on a prior federal summary judgment
decision rendered on the merits. See Williams v. City of
Jacksonville Police Dep't
, 165 N.C. App. 587, 589-90, 599 S.E.2d
422, 426 (2004).
We need not, however, reconcile Country Club
in this case, since they all involve a prior
determination on the merits by either a jury or a judge _ a
circumstance lacking in this case. Because defendants rely solely
on a settlement agreement with an accompanying dismissal, there is
no possibility of a result inconsistent with a prior jury verdict
or a prior decision by a judge. This case more closely resembles
this Court's decisions in Allen v. Stone
, 161 N.C. App. 519, 522,
588 S.E.2d 495, 497 (2003), and Robinson v. Gardner
, 167 N.C. App.
763, 769, 606 S.E.2d 449, 453, disc. review denied
, 359 N.C. 322,
611 S.E.2d 417 (2005).
, the plaintiff had previously twice dismissed her
claims under N.C.R. Civ. P. 41(a)(1), with the result that the
second dismissal was with prejudice. This Court rejected the
defendants' contention that the trial court's order denying theirmotion to dismiss the action based on the prior dismissal affected
a substantial right. Allen
, 161 N.C. App. at 522, 588 S.E.2d at
497. The Court explained: "This Court has previously stated that
avoidance of a trial, no matter how tedious or unnecessary, is not
a substantial right entitling an appellant to immediate review."
involved the same procedural facts as Allen
, but the
defendants based their claim of a substantial right on their
argument that the prior dismissal with prejudice gave rise to the
defense of res judicata. This Court held that it was bound by
, but, in any event, explained that the fact defendants were
specifically asserting the defense of res judicata did not entitle
them to an interlocutory appeal because there was "no decision by
any court or jury that could prove to be inconsistent with a future
, 167 N.C. App. at 769, 606 S.E.2d at 453.
Like the defendants in Robinson
, defendants in this
case base their claim of res judicata on a prior voluntary
dismissal with prejudice that does not reflect a ruling on the
merits by any jury or judge. Robinson
therefore, we hold that defendants have failed to demonstrate the
existence of a substantial right with respect to their appeal.
Defendants requested at oral argument before this Court that
we nevertheless grant certiorari to review their contentions. An
application for a writ of certiorari "shall contain a statement of
the facts necessary to an understanding of the issues presented by
the application; a statement of the reasons why the writ should
issue; and certified copies of the judgment, order or opinion orparts of the record which may be essential to an understanding of
the matters set forth in the petition. The petition shall be
verified by counsel or the petitioner." N.C.R. App. P. 21(c).
Defendants' request at oral argument falls short of the
requirements of Rule 21. See State v. McCoy
, 171 N.C. App. 636,
638, 615 S.E.2d 319, 321 (concluding footnote in appellate brief
was insufficient to request writ of certiorari because it "clearly
d[id] not meet the requirements set forth in Rule 21(c)"), appeal
, 360 N.C. 73, 622 S.E.2d 626 (2005). Moreover,
defendants have pointed to no circumstances that would justify the
exercise of this Court's discretion to suspend the requirements of
Rule 21 under N.C.R. App. P. 2. Defendants' appeal is, therefore,
Summary Judgment as to Plaintiff Foster
We first consider plaintiffs' argument that the trial court
erred by granting defendants summary judgment on all of Foster's
claims. Summary judgment is appropriate if "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.R. Civ. P. 56(c). The trial
court may not resolve issues of fact and must deny the motion if
there is a genuine issue as to any material fact. Singleton v.
, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). Moreover,
"'all inferences of fact . . . must be drawn against the movant and
in favor of the party opposing the motion.'" Caldwell v. Deese
,288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 Moore's
§ 56.15, at 2337 (2d ed. 1971)). This Court
reviews orders granting summary judgment de novo. Falk Integrated
Techs., Inc. v. Stack
, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574
A. Statutes of Repose and Limitations
 The trial court concluded that Foster's claims were barred
under the four-year statute of repose applicable to medical
malpractice actions. Although the statute of limitations
applicable to medical malpractice actions is three years, the
General Assembly has further provided that "in no event shall [a
medical malpractice] action be commenced more than four years from
the last act of the defendant giving rise to the cause of action .
. . ." N.C. Gen. Stat. § 1-15(c) (2005). See also Bowlin v. Duke
, 119 N.C. App. 178, 183, 457 S.E.2d 757, 760 (noting that "a
medical malpractice cause of action must be filed within three
years of the date of the last act giving rise to the cause of
action" and that, in any event, there is "a period of repose of
four years"), disc. review denied
, 342 N.C. 190, 463 S.E.2d 233
On appeal, plaintiffs assert that Foster's claims do not
constitute a medical malpractice action, but, rather, are personal
injury claims that enjoy a 10-year statute of repose and for which
the statute of limitations did not begin to run until Foster was
diagnosed with injuries as a result of Crandell's improper conduct.
N.C. Gen. Stat. § 1-52(16) (2005) ("[F]or personal injury . .. the cause of action . . . shall not accrue until bodily harm to
the claimant . . . becomes apparent or ought reasonably to have
become apparent to the claimant, whichever event first occurs.
Provided that no cause of action shall accrue more than 10 years
from the last act or omission of the defendant giving rise to the
cause of action."). We disagree.
A medical malpractice action is "a civil action for damages
for personal injury or death arising out of the furnishing or
failure to furnish professional services in the performance of
medical, dental, or other health care by a health care provider."
N.C. Gen. Stat. § 90-21.11 (2005). Here, Foster has asserted
personal injury claims against Crandell that are premised entirely
upon Crandell's negligent or reckless failure, as the supervising
clinical psychiatrist, to adequately utilize his specialized
knowledge and skill to supervise Rivest's counseling practices.
As these claims all implicate the furnishing of Crandell's
professional services in a supervisory context, they are sufficient
to establish that plaintiff Foster's claims are medical malpractice
claims for purposes of the statute of limitations and the statute
of repose. Compare Mozingo v. Pitt County Mem'l Hosp., Inc.
N.C. App. 578, 588-89, 400 S.E.2d 747, 753 (physician subject to
malpractice claim when he had supervisory responsibility over the
physicians that actually provided plaintiffs with care), disc.
, 329 N.C. 498, 407 S.E.2d 537 (1991), aff'd
, 331 N.C.
182, 415 S.E.2d 341 (1992), with Taylor v. Vencor, Inc.
, 136 N.C.
App. 528, 530, 525 S.E.2d 201, 203 (nursing home's failure toadequately supervise plaintiff's elderly mother while smoking
cigarettes was not malpractice because such supervision did not
require the furnishing of professional services), disc. review
, 351 N.C. 646, 543 S.E.2d 889 (2000). The question remains,
however, whether Foster has offered sufficient evidence that she
asserted those claims in a timely fashion.
 It is undisputed that Crandell never treated Foster
directly and that Foster bases her claims solely on his negligent
supervision of Rivest. Consequently, in order to survive the
motion for summary judgment based on the statutes of limitations
and repose, Foster must point to evidence suggesting that Crandell
continued to supervise Rivest after 27 December 1999 _ a date three
years before plaintiffs filed their original complaint on 27
Borland's affidavit, submitted in opposition to summary
judgment, states that Crandell advised her in February 2000 that
she should "seek treatment elsewhere because he did have an on-
going supervisory relationship with Michael Rivest
added.) When this evidence is viewed in the light most favorable
to Foster, the non-moving party, it is sufficient to raise an issue
of fact as to whether Crandell's supervisory relationship with
Rivest had continued into 2000. As a result, an issue of fact
exists as to whether Foster's claims were filed within the three-
year statute of limitations.
With respect to the longer four-year statute of repose, Rivest
sent Bowen a letter on 13 July 1999 _ copied to Crandell _ statingthat Rivest had consulted with "our Medical Director and Clinical
Supervisor regarding [her] case" and that Rivest and the Medical
Director/Clinical Supervisor believed "that counseling at St.
Matthew's Institute will not decrease [her] problems at this time."
Crandell does not dispute that he was the Medical Director/Clinical
Supervisor, but contends that this letter was merely an outdated
"form letter" and any reference to Crandell should be disregarded.
The fact that the letter was, in handwriting, specifically copied
to Crandell runs counter to this argument. To accept defendants'
contention would require that we construe the evidence in a light
favorable to Crandell _ an approach not permissible at the summary
In addition, Bowen's affidavit also provides that on "a number
of occasions" after July 1999, Crandell indicated to her that he
was familiar with her situation "because he shared information with
Michael Rivest due to his supervisory relationship over Rivest."
Indeed, Foster's own affidavit states that in mid-1999, she saw
Crandell interact with Rivest at church functions and "come over
for meetings." Collectively, this evidence is sufficient to raise
an issue of fact as to whether Crandell was supervising Rivest
after 27 December 1998, four years prior to the date plaintiffs
filed their original complaint.
Thus, Foster submitted sufficient evidence to raise issues of
fact as to both the statute of limitations and the statute of
repose. Accordingly, the trial court's award of summary judgmentto defendants on Foster's claims on statutes of limitations or
repose grounds was in error.
B. Alternative Grounds for Upholding the Judgment
 Defendants nevertheless argue that, even if the trial
court erred by concluding Foster's claims were time-barred,
defendants were entitled to summary judgment as to Foster's claims
for intentional infliction of emotional distress ("IIED"), NIED,
negligent supervision by Crandell, and negligent supervision by
PsiMed. If, as here, an appellee is not otherwise entitled to
bring an appeal, the "appellee may cross-assign as error any action
or omission of the trial court which was properly preserved for
appellate review and which deprived the appellee of an alternative
basis in law for supporting the . . . order . . . from which appeal
has been taken." N.C.R. App. P. 10(d). Defendants have properly
cross-assigned error to the Partial Summary Judgment Order's
failure to award them summary judgment on Foster's claims on
grounds other than the statutes of limitations and repose. We,
therefore, consider whether Foster has presented sufficient
evidence on the merits of her claims to defeat summary judgment.
(See footnote 2)
"The essential elements of intentional infliction of emotional
distress are '(1) extreme and outrageous conduct, (2) which is
intended to cause and does cause (3) severe emotional distress[.]'"
Burgess v. Busby
, 142 N.C. App. 393, 399, 544 S.E.2d 4, 7(alteration original) (quoting Dickens v. Puryear
, 302 N.C. 437,
452, 276 S.E.2d 325, 335 (1981)), appeal dismissed
, 353 N.C. 525,
549 S.E.2d 216, disc. review improvidently allowed
, 354 N.C. 351,
553 S.E.2d 679 (2001). We hold that Foster has failed to present
sufficient evidence of the first element.
The question before us is not whether Rivest's improper sexual
conduct constitutes "extreme and outrageous" behavior, but rather
whether evidence of a failure by Crandell to properly supervise
Rivest meets that test. "'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.'"
Johnson v. Colonial Life & Accident Ins. Co.
, 173 N.C. App. 365,
373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy
N.C. App. 15, 22, 567 S.E.2d 403, 408-09 (2002)
), disc. review
, 360 N.C. 290, 627 S.E.2d 620 (2006). The determination
whether conduct rises to the level of extreme and outrageous
behavior is a question of law. Id.
, 618 S.E.2d at 872-73.
Foster argues "that Crandell's willful failure to disclose
critical information from the NC LPC Board constituted extreme and
outrageous conduct." She does not suggest that Crandell failed to
disclose any information of sexual misconduct by Rivest, but rather
rests her argument on the failure to disclose the Board's demand
that Rivest cease the practice of counseling. Foster cites no
authority _ and we have found none _ supporting her contention that
a failure to disclose information under the circumstances of thiscase "exceeds all bounds of decency tolerated by society . . . ."
West v. King's Dep't Store, Inc.
, 321 N.C. 698, 704, 365 S.E.2d
621, 625 (1988). Compare Burgess
, 142 N.C. App. at 400, 544 S.E.2d
at 8 (holding that plaintiffs had sufficiently alleged a claim for
IIED when defendant sent a letter to every physician having
hospital admitting privileges in the county, including plaintiffs'
primary care physicians, listing names and addresses of plaintiffs,
who were jurors that rendered a verdict against him). Accordingly,
defendants were entitled to summary judgment on Foster's IIED
claim, and this portion of the Partial Summary Judgment Order is
 An action for NIED has three elements: (1) defendant
engaged in negligent conduct; (2) it was reasonably foreseeable
that such conduct would cause the plaintiff severe emotional
distress; and (3) defendant's conduct, in fact, caused plaintiff
severe emotional distress. Johnson v. Ruark Obstetrics &
Gynecology Assocs., P.A.
, 327 N.C. 283, 304, 395 S.E.2d 85, 97
(1990). In order to meet the requirements of the first element, a
plaintiff must establish that the defendant breached a duty of care
owed to the plaintiff. Guthrie
, 152 N.C. App. at 25, 567 S.E.2d at
411. Defendants do not contend that Foster has failed to present
sufficient evidence of negligence,
(See footnote 3)
but instead argue only that
Foster presented no evidence of foreseeability of severe emotionaldistress or that Crandell's conduct in fact caused her severe
With respect to the foreseeability element, Foster must have
presented evidence indicating that her "emotional distress was a
reasonably foreseeable result of [Crandell's] negligent acts."
Robblee v. Budd Servs. Inc.
, 136 N.C. App. 793, 797, 525 S.E.2d
847, 850, disc. review denied
, 352 N.C. 676, 545 S.E.2d 228
(2000). Defendants argue that "Foster has offered no evidence or
explanation as to how defendant Crandell's alleged negligent
supervision caused her serious emotional distress" because Crandell
did not review her records or have any professional relationship
with her and because Crandell concluded his supervision of Rivest
in November 1998.
This analysis, however, views the evidence in a light most
favorable to defendants. As set out above, the record contains
evidence that would allow a jury to find that Crandell's
supervisory relationship continued into at least 2000. Further,
plaintiffs submitted an affidavit by James F. T. Corcoran, M.D., in
which he stated:
Assuming Crandell continued to supervise
Rivest after December 3, 1998, my opinion is
that Dr. Crandell breached his standard of
care with regard to Freida Foster, not only
because Rivest was not qualified to treat
Foster, but also because he knew that the LPC
board had ordered Rivest to cease and desist
the practice of counseling. I am aware that
Crandell was responsible for reviewing
Rivest's counseling records based upon the
information Crandell provided to the NCBLPC.
If Crandell properly reviewed Rivest's
counseling notes as he was required, he knew
or should have known Rivest's clients,including Freida Foster. Therefore, he had a
duty to advise her of Rivest's standing with
the LPC board. If Crandell did not review
Rivest's counseling records as was required by
the NCBLPC, he breached the standard of care
as it pertains to treatment and supervision.
Corcoran added: "It is my further opinion that the plaintiffs'
emotional trauma was exacerbated by the treatment that they
received from Michael Rivest as well as Dr. Crandell. Crandell
placed Rivest in a position to harm others, and Rivest in fact, did
harm the plaintiffs." This testimony explains how Crandell's
conduct caused Foster's emotional distress and _ together with
plaintiffs' other summary judgment evidence _ is sufficient
evidence to raise a genuine issue of material fact as to whether it
was reasonably foreseeable that if Crandell negligently failed to
supervise Rivest, severe emotional distress could result in
Rivest's clients, including Foster.
Regarding the third element, our courts have defined "severe
emotional distress" to "mean any emotional or mental disorder,
such as, for example, neurosis, psychosis, chronic depression,
phobia, or any other type of severe and disabling emotional or
mental condition which may be generally recognized and diagnosed by
professionals trained to do so." Ruark Obstetrics, 327 N.C. at
304, 395 S.E.2d at 97. Put more succinctly, a plaintiff must
"present evidence . . . of diagnosable mental health conditions."
Fox-Kirk v. Hannon, 142 N.C. App. 267, 274, 542 S.E.2d 346, 352,
disc. review denied, 353 N.C. 725, 551 S.E.2d 437 (2001). Here,
Foster offered evidence from both her therapist and Dr. Corcoran
that she suffered diagnosable mental health conditions as a resultof Crandell's alleged negligence. Under Ruark Obstetrics and Fox-
Kirk, this evidence is sufficient to give rise to a genuine issue
of material fact as to whether Foster suffered severe emotional
distress as a result of Crandell's conduct.
Defendants were not, therefore, entitled to summary judgment
with respect to the merits of Foster's claim for NIED.
Accordingly, we reverse the trial court's grant of partial summary
judgment to defendant Crandell on Foster's NIED claim.
 Finally, Foster contends that she offered sufficient
evidence to make out a prima facie case of negligent supervision.
With respect to this cause of action, Foster does not rely upon the
theory recognized in Mozingo, 331 N.C. at 190-91, 415 S.E.2d at
346, but rather bases her claim on Medlin v. Bass, 327 N.C. 587,
590-91, 398 S.E.2d 460, 462 (1990) (omissions original) (internal
quotation marks and emphasis omitted) (quoting Walters v. Durham
Lumber Co., 163 N.C. 536, 541, 80 S.E. 49, 51 (1913)):
North Carolina recognizes a claim for
negligent employment or retention when the
"(1) the specific negligent act on
which the action is founded . . .
(2) incompetency, by inherent
unfitness or previous specific acts
of negligence, from which
incompetency may be inferred; and
(3) either actual notice to the
master of such unfitness or bad
habits, or constructive notice, by
showing that the master could have
known the facts had he used ordinary
care in oversight and supervision, .
. .; and (4) that the injury
complained of resulted from the
We cannot see how the Medlin theory of liability _ a basis for
imposing liability upon an employer for negligently hiring or
retaining an employee _ applies in this case.
The record contains no evidence that Crandell employed Rivest
either as an employee or independent contractor. See Little v.
Omega Meats I, Inc., 171 N.C. App. 583, 586, 615 S.E.2d 45, 48
("[I]n certain limited situations an employer may be held liable
for the negligence of its independent contractor. Such a claim is
not based upon vicarious liability, but rather is a direct claim
against the employer based upon the actionable negligence of the
employer in negligently hiring a third party."), aff'd per curiam,
360 N.C. 164, 622 S.E.2d 494 (2005). At most, Crandell was, at one
point, a co-employee of Rivest. Consequently, there can be no
argument that Crandell negligently employed or retained Rivest.
Although it might be tempting to analyze Foster's claims under
Mozingo, a case not relied upon by Foster, our Supreme Court has
recently reminded this Court that "[i]t is not the role of the
appellate courts . . . to create an appeal for an appellant" by
addressing an issue not raised or argued by the appellant. Viar v.
N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005) (per curiam). To do otherwise would leave an appellee
"without notice of the basis upon which an appellate court might
rule." Id. Because Medlin is inapplicable under these facts and
Foster has presented no other legal basis for her negligent
supervision claim, we hold that summary judgment was properly
entered on this claim. In sum, we reverse the trial court's determination that
Foster's claims are barred by the statutes of limitations or
repose. We agree with Crandell, however, that Foster has presented
insufficient evidence to support her claims for IIED and negligent
supervision. We disagree, however, with respect to Foster's claim
for NIED and, therefore, reverse the entry of summary judgment on
that cause of action.
 All three plaintiffs argue that the trial court erred when
it granted defendants summary judgment as to plaintiffs' claims for
punitive damages. Under N.C. Gen. Stat. § 1D-15(a), punitive
damages may be awarded only when a claimant proves that a defendant
is liable for compensatory damages and that one of three
"aggravating factors" _ fraud, malice, or willful or wanton conduct
_ was both present and related to the injury for which compensatory
damages were awarded. Our General Assembly has defined "malice" as
"a sense of personal ill will toward the claimant that activated or
incited the defendant to perform the act or undertake the conduct
that resulted in harm to the claimant." N.C. Gen. Stat. § 1D-5(5)
(2005). "Willful or wanton conduct," in turn, "means the conscious
and intentional disregard of and indifference to the rights and
safety of others, which the defendant knows or should know is
reasonably likely to result in injury, damage, or other harm."
N.C. Gen. Stat. § 1D-5(7). More specifically, it "means more than
gross negligence." Id.
The claimant must prove the existence ofthe aggravating factor by clear and convincing evidence. N.C. Gen.
Stat. § 1D-15(b).
Further, "[p]unitive damages shall not be awarded against a
person solely on the basis of vicarious liability for the acts or
omissions of another." N.C. Gen. Stat. § 1D-15(c). Instead,
"[p]unitive damages may be awarded against a person only if that
person participated in the conduct . . . giving rise to the
punitive damages . . . ." Id.
As a result, Rivest's behavior _
including any sexual misconduct _ cannot serve as a basis for
plaintiffs to obtain punitive damages from Crandell.
 Here, plaintiffs do not contend that either fraud or
malice exists, but rather rely upon the "willful or wanton conduct"
aggravating factor. In support of their claim for punitive
damages, plaintiffs argue only that (1) "since they alleged a claim
of intentional infliction of emotional distress, those allegations
are sufficient to support a claim for punitive damages," and (2)
"Crandell's conduct as it pertained to his reckless supervision of
Rivest evidences a disregard and indifference to the rights and
safety of others."
Since we have held that summary judgment was properly granted
as to Foster's claims for IIED and negligent supervision, Foster
has, on appeal, made no argument that would support her claim for
punitive damages. We therefore hold the trial court properly
entered summary judgment on Foster's claim for punitive damages.
With respect to Borland's and Bowen's IIED claims, we note
that plaintiffs rely only upon their "allegations" of IIED. Inopposing a motion for summary judgment, however, the non-moving
party "may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is
a genuine issue for trial." N.C.R. Civ. P. 56(e). Accordingly,
the issue is whether plaintiffs were able to "produce a forecast of
evidence demonstrating that [they] will be able to make out at
least a prima facie case at trial." Collingwood v. Gen. Elec. Real
Estate Equities, Inc.
, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).
Plaintiffs Borland and Bowen have not, however, made any argument
on appeal as to what evidence supports their claim for IIED.
Although evidence supportive of such a claim has been held
sufficient to establish the necessary aggravating factor for a
claim for punitive damages, Watson v. Dixon
, 132 N.C. App. 329,
334, 511 S.E.2d 37, 41, disc. review denied
, 351 N.C. 191, 541
S.E.2d 727 (1999), aff'd
, 352 N.C. 343, 532 S.E.2d 175 (2000),
plaintiffs' reliance upon mere allegations regarding their IIED
claim rather than on evidence of that claim _ including clear and
convincing evidence of willful or wanton conduct _ precludes us
from reversing the trial court's determination that summary
judgment was appropriate as to their punitive damages claim. It is
not the responsibility of this Court to construct arguments for a
With respect to plaintiffs' "reckless supervision" claim,
plaintiffs again cite to no particular evidence, but rather assert
in conclusory fashion that "Crandell's conduct as it pertained tohis reckless supervision of Rivest evidences a disregard and
indifference to the rights and safety of others. This behavior
falls within the scope of willful and wanton conduct." As this
Court has previously held, "the mere characterization by
[plaintiffs] of defendants' negligence as conscious and reckless
[does] not create a genuine issue of material fact." Lashlee v.
White Consol. Indus., Inc.
, 144 N.C. App. 684, 694, 548 S.E.2d 821,
828, disc. review denied
, 354 N.C. 574, 559 S.E.2d 179 (2001).
While plaintiffs have set out in the statement of facts the
evidence that they contend supports their claim for negligent
supervision and negligence in Crandell's professional treatment of
Borland and Bowen, plaintiffs have not explained how that evidence
rises above negligence _ or even gross negligence _ to reach the
level of "conscious and intentional disregard of and indifference
to the rights and safety of others." N.C. Gen. Stat. § 1D-5(7).
Further, plaintiffs have cited no authority supporting their
conclusory claim that their evidence is sufficient to meet the
requirements for willful or wanton conduct. See
28(b)(6) ("Assignments of error . . . in support of which no reason
or argument is stated or authority cited, will be taken as
abandoned."). We, therefore, cannot conclude that the trial court
erred in entering summary judgment for defendants as to plaintiffs'
claim for punitive damages.
We dismiss defendants' appeal and plaintiffs Bowen's and
Borland's appeal as to the rulings on Mr. Henry's testimony andtheir arguments regarding medicine management as interlocutory. We
affirm the trial court's entry of summary judgment as to all of
Foster's claims except for her claim for NIED against defendant
Crandell. As to Foster's NIED claim against defendant Crandell, we
reverse. We affirm the entry of summary judgment as to all
plaintiffs' claims for punitive damages.
Affirmed in part; reversed in part; dismissed in part.
Judges WYNN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.