Sopko v. Stancill,
2015 NCBC 14.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 14 CVS 9047
ROBERT P. SOPKO, D.D.S., Individually
)
and Derivatively on Behalf of ROBERT J.
)
STANCILL, D.D.S., M.S. AND ROBERT P.
)
SOPKO, D.D.S., P.A. )
Plaintiff, )
)
v. ) OPINION AND ORDER
)
SUSAN A. STANCILL, SHELTON ADCOCK, )
LAKE BOONE TRAIL OFFICE CENTER )
ASSOCIATES, ROBERT CHANDLER, )
ERNIE FAULKNER, JOHN SINNETT, JOHN )
KNOX, DOUGLAS CONRAD and JOHN )
HITCH, )
Defendants. )
THIS CAUSE was designated a mandatory complex business case by Order of the
Chief Justice of the North Carolina Supreme Court, pursuant to N.C. Gen. Stat. § 7A-
45.4(b) (hereinafter, references to the North Carolina General Statutes will be to “G.S.”),
and assigned to the undersigned Special Superior Court Judge for Complex Business Cases.
The matter is before the Court upon Plaintiff Robert P. Sopko, D.D.S.’s Motion to Dismiss
(“Motion”) pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure
(“Rule(s)”).
THE COURT, having reviewed the Motion, briefs in support of and opposition to the
Motion, and other appropriate matters of record, CONCLUDES that the Motion should be
GRANTED, without prejudice, for the reasons stated herein.
Hendren & Malone, LLP, by J. Michael Malone, Esq., for Plaintiff/Counterclaim
Defendant.
Smith Moore Leatherwood LLP, by Mark A. Finkelstein, Esq. for
Defendant/Counterclaim Plaintiff.
McGuire, Judge.
PROCEDURAL HISTORY
1. Plaintiff initiated this lawsuit on July 9, 2014, by filing his Verified
Complaint and Motion for Temporary Restraining Order.1 The claims arose out of the
demise of a dental practice in which Plaintiff and Defendant Susan A. Stancill’s husband,
Dr. Stancill, were members. The Verified Complaint contained both individual claims by
Plaintiff Robert P. Sopko, D.D.S., and derivative claims on behalf of Robert J. Stancill,
D.D.S., M.S. and Robert P. Sopko, D.D.S., P.A. (“Practice”).
2. On July 15, 2014, this Court entered a Temporary Restraining Order (“TRO”)
prohibiting Defendants2 from interfering with Plaintiff’s access to certain leased space that
the Practice had previously occupied. This Court later declined to convert the TRO into a
preliminary injunction, finding that Plaintiff had failed to prove that the equities weighed
in favor of injunctive relief.3
3. On August 6, 2014, Susan A. Stancill (hereinafter “Stancill”) filed her
Amended Answer to Complaint, Defenses and Counterclaims (“Answer and Counterclaim”)
on August 6, 2014. Stancill alleged two Counterclaim(s) against Plaintiff: Counterclaim
Count I (Trespass), and Counterclaim Count II (Infliction of Emotional Distress).
4. In his Motion, Plaintiff moves to dismiss Stancill’s Counterclaim for
Intentional Infliction of Emotional Distress.4
5. The Motion has been fully briefed and is ripe for determination.
1 A companion dispute between Plaintiff and Robert J. Stancill, Defendant Stancill’s husband, is
pending in Wake County as Wake County No. 14 CVS 5958. The issues in the two actions are
similar.
2 Plaintiff has since dismissed all of the Defendants other than Stancill, and Plaintiff’s only
remaining claims are the claims against Susan A. Stancill. See Order Allowing Dismissal of
Derivative Claims (Dec. 31, 2014); Pl.’s Vol. Dismissal of Adcock, Lake Boone, Chandler, Faulkner,
Sinnett, Knox, Conrad, Hitch (Jan. 29, 2015).
3 Order on Mot. Prelim. Inj., Aug. 1, 2014.
4 Though the Counterclaim is titled “Infliction of Emotional Distress” and appears to make reference
to both intentional and negligent infliction of emotional distress, the briefs supporting and opposing
the Motion address only the tort of intentional infliction of emotional distress.
FACTUAL BACKGROUND
Among other things, Stancill’s Answer and Counterclaim alleges that:
6. Defendant Stancill was the lowest compensated employee of the Practice, a
professional association co-owned by her husband, Dr. Robert J. Stancill, and Plaintiff
Sopko.5 The Practice operated out of leased space (“Premises”).6
7. In April 2014, Defendant Stancill obtained a lease to the Premises in her own
name.7 This lease terminated Plaintiff’s legal right to access the Premises.8 Since that time,
Plaintiff entered the Premises on multiple occasions without authorization from Stancill.9
On these occasions, Sopko did not leave the Premises when asked to do so.10
8. Sopko yelled at Stancill while her teenage daughter was present in the
Premises.11
9. Sopko instigated a fraud investigation against Stancill and her husband.
Though this investigation revealed financial improprieties caused by Sopko, not the
Stancills, Sopko feigned ignorance of these improprieties.12
10. Sopko knew that his behavior would cause Stancill severe emotional distress,
in part because his behavior had already caused Stancill’s husband to reduce the amount of
work that he performed in the vicinity of Sopko.13
11. Sopko’s behavior caused Stancill to experience severe emotional distress.14
5 Ans. ¶ 3.
6 Ans. ¶ 25.
7 Countercl. ¶ 2.
8 See Ans. ¶¶ 29, 53.
9 Countercl. ¶ 4.
10 Countercl. ¶ 6.
11 Id. ¶ 9.
12 Id. ¶ 9.
13 Id. ¶ 10.
14 Id. ¶ 13.
DISCUSSION
12. Plaintiff has moved to dismiss Stancill’s Counterclaim for intentional
infliction of emotional distress pursuant to Rule 12(b)(6). In deciding a Rule 12(b)(6)
Motion to Dismiss for failure to state a claim, the court treats the well-pleaded allegations
of the complaint as true and admitted. However, conclusions of law or unwarranted
deductions of fact are not deemed admitted. Sutton v. Duke, 277 N.C. 94, 98 (1970). The
court views the allegations in the light most favorable to the nonmovant. Ford v. Peaches
Entertainment Corp.,
83 N.C. App. 155, 156 (1986). A claim should not be dismissed under
Rule 12(b)(6) unless it “affirmatively appears that [claimaint] is entitled to no relief under
any state of facts which could be presented in support of the claim.” Ladd v. Estate of
Kellenberger ,
314 N.C. 477, 481 (1985) (quoting Presnell v. Pell,
298 N.C. 715, 719 (1979)).
13. Stancill’s Counterclaim alleges that Plaintiff, by his conduct, both
intentionally and negligently caused her severe emotional distress.15 Generally, the same
alleged conduct cannot form the basis of a claim for both intentional and negligent infliction
of emotional distress. See Barbier v. Durham Cnty. Bd. of Educ., 225 F. Supp. 2d 617, 631
(M.D.N.C. 2002). Nevertheless, and although Plaintiff appears to seek dismissal of the
Counterclaim only insofar as it alleges intentional infliction of emotional distress,16 the
Court will review the allegations in the entirety of Counterclaim II in ruling on the Motion.
14. To state a claim for intentional infliction of emotional distress, a claimant
must allege that the adverse party 1) intentionally or recklessly engaged in extreme and
outrageous conduct that was 2) intended to cause and did cause 3) severe emotional
distress. Dickens v. Puryear, 302 N.C. 437, 453(1981); Wilson v. Pearce,
105 N.C. App. 107,
15 Countercl. ¶¶ 9-10, 12.
16 Br. Supp. Mot. Dismiss 1 (“Specifically, Plaintiff requests that this Court dismiss Count II of
Defendant Susan A. Stancill’s Counterclaim which seeks relief for Intentional Infliction of Emotional
Distress”).
115 (1992). A claim for negligent infliction of emotional distress requires a party to allege 1)
the defendant negligently engaged in conduct 2) that could foreseeably cause the party
severe emotional distress, and 3) the conduct did, in fact, cause severe emotional distress.
Best v. Duke Univ.,
337 N.C. 742, 752 (1994); Johnson v. Ruark Obstetrics,
327 N.C. 283,
304 (1990). As will be discussed below, both claims require allegations of “severe emotional
distress,” and this element, if lacking, is thus fatal to both types of claims.
15. The Court finds that Stancill’s Counterclaims fail to properly allege the
“extreme and outrageous conduct” necessary to support a claim for intentional infliction of
emotional distress and the “severe emotional distress” necessary to both intentional and
negligent infliction claims. The Court will discuss each of these elements in turn.
Extreme and Outrageous Conduct
16. Whether conduct is “extreme and outrageous” is a question of law for the
court. Johnson v. Bollinger, 86 N.C. App. 1, 6 (1987). “To establish a claim for intentional
infliction of emotional distress, a party must show that a defendant’s conduct exceeds all
bounds of decency tolerated by a society and the conduct causes mental distress of a very
serious kind.” Wilson,
105 N.C. App. at 115 (internal citations omitted). However, “mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities” will not be
found to constitute extreme and outrageous conduct. Johnson v. Bollinger,
86 N.C. App. at 6
(quoting Briggs v. Rosenthal,
73 N.C. App. 672, 676 (1985)). Stancill alleges that Plaintiff
repeatedly entered the Premises even after he no longer had a legal right to do so and that
he refused her instructions to leave; that Plaintiff yelled at Defendant while her teenage
daughter was present; and that Plaintiff improperly initiated a fraud investigation against
Defendant and her husband. 17
17 Defendant urges the Court to take note of the exact words spoken by Plaintiff to Stancill’s
daughter, and other facts that are not alleged in the Counterclaims but contained in Plaintiff’s brief.
17. These allegations describe conduct that, at most, might be characterized as
offensive, irritating or rude behavior. The conduct, however, falls short of the type of
conduct North Carolina courts have required in order to state a claim for intentional
infliction of severe emotional distress. See North Carolina Law of Torts (Bender) § 5.30[1]
(4th ed. 2014). Without more, the Court finds that the allegations are insufficient to survive
a motion to dismiss this claim.
Severe Emotional Distress
18. Claims for intentional and negligent infliction of emotional distress both
require that the claimant allege that she has suffered severe emotional distress. See, e.g.,
Waddle v. Sparks, 331 N.C. 73, 83 (1992). The courts of this State have held that severe
emotional distress “means 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.” Id.; Johnson v. Ruark Obstetrics,
327 N.C. at 304. Allegations that fail to
identify a recognized and diagnosable mental or emotional disorder are not sufficient. See
Pierce v. Atl. Group, Inc.,
219 N.C. App. 19, 32-33 (2012) (finding that an allegation of
“serious on and off the job stress, severely affecting his relationship with his wife and
family members” was insufficient to allege a claim for infliction of emotional distress); cf.
Zenobile v. McKecuen,
144 N.C. App. 104, 111 (2001) (reversing dismissal of a plaintiff’s
claim for infliction of emotional distress when she alleged that she suffered extreme
emotional distress consisting of “anxiety disorder, depression, and post-traumatic stress
disorder”).
See Def. Stancill’s Brief Opp. Pl.’s Mot. Dismiss Pursuant to Rule 12(b)(6) at 4-5. In reviewing a Rule
12(b)(6) Motion, the Court reviews only the Complaint. See Sutton v. Duke,
277 N.C. 94 (1970).
19. In her Counterclaims, Stancill merely alleges that she suffered “severe
mental anguish” and “severe emotional distress.” 18 Stancill does not allege any specific
manifestations of this distress or anguish, let alone a recognized and diagnosable mental or
emotional injury. Accordingly, Stancill has failed to allege a necessary element of claims
for both intentional and negligent infliction of emotional distress as recognized by North
Carolina law, and both Counterclaims should be dismissed.
CONCLUSION
20. Based upon the foregoing, the Court concludes that Defendant has failed to
state a claim upon which relief can be granted for intentional infliction of emotional
distress or for negligent infliction of emotional distress. Accordingly, Stancill’s
Counterclaim Count II for Infliction of Emotional Distress is DISMISSED without
prejudice.
SO ORDERED, this the 10th day of February, 2015.
18 Countercl. ¶¶ 6, 10, 12, 13.
