{ "id": 8520443, "name": "PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants", "name_abbreviation": "Bryant v. Thalhimer Bros.", "decision_date": "1993-12-21", "docket_number": "No. 9121SC814", "first_page": "1", "last_page": "18", "citations": [ { "type": "official", "cite": "113 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "125 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "257 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565769 ], "year": 1962, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0103-01" ] }, { "cite": "315 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 757", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527951 ], "year": 1984, "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0757-01" ] }, { "cite": "388 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307503 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0356-01" ] }, { "cite": "378 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "235" }, { "page": "236", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528074 ], "year": 1989, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0431-01" ] }, { "cite": "100 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "parenthetical": "counsel's statements that he did not rely on a theory stated in the complaint where the complaint alleged only that theory was not binding on party" } ], "opinion_index": 0 }, { "cite": "247 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626848 ], "year": 1957, "pin_cites": [ { "parenthetical": "counsel's statements that he did not rely on a theory stated in the complaint where the complaint alleged only that theory was not binding on party" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0286-01" ] }, { "cite": "118 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625318 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0204-01" ] }, { "cite": "276 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "302 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568054 ], "year": 1981, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0599-01" ] }, { "cite": "293 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "306 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568776 ], "year": 1981, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0364-01" ] }, { "cite": "284 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "191", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524260 ], "year": 1981, "pin_cites": [ { "page": "594", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0589-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1981, "pin_cites": [ { "page": "330" }, { "page": "444" }, { "page": "330" }, { "page": "336", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "452" }, { "page": "455, n. 11" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "346 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "340 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "cite": "257 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548625 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0048-01" ] }, { "cite": "400 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527889 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0462-01" ] }, { "cite": "307 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762117, 4764688, 4765937, 4761429, 4760601 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0461-04", "/nc/309/0461-03", "/nc/309/0461-01", "/nc/309/0461-02", "/nc/309/0461-05" ] }, { "cite": "303 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522781 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0419-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1992, "pin_cites": [ { "page": "29" }, { "page": "87" }, { "page": "29" }, { "page": "27" }, { "page": "28", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "86" }, { "page": "83" }, { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "394 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526398 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/100/0129-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569541, 8569509, 8569477, 8569391, 8569437 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0306-05", "/nc/305/0306-04", "/nc/305/0306-03", "/nc/305/0306-01", "/nc/305/0306-02" ] }, { "cite": "281 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "688" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523065 ], "year": 1981, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0632-01" ] } ], "analysis": { "cardinality": 1384, "char_count": 40827, "ocr_confidence": 0.754, "pagerank": { "raw": 4.5951469897077277e-07, "percentile": 0.9257574476349779 }, "sha256": "8cb5a2103c50ddc8bf7f7ac28e7c86295d3b4c9d845e9ae0e9b73e545080225b", "simhash": "1:986294a80c1fce5a", "word_count": 6680 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and GREENE concur." ], "parties": [ "PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants" ], "opinions": [ { "text": "ORR, Judge.\nWe note at the onset that we are in our discretion addressing the merits of the defendants\u2019 first argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. The issue has not been raised properly. As a result of incorrect pagination, the page stating the argument and referencing the assignment of error has been omitted. Ordinarily, if a party fails to include references to the assignment of error, the question is deemed abandoned and will not be considered on appeal. However, \u201c[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest . . .\u201d, Rule 2 allows us to waive this requirement and proceed to the merits. See State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), appeal dismissed and cert. denied, 305 N.C. 306, 290 S.E.2d 707 (1982).\nI.\nThe defendants have raised eight assignments of error for review by this Court. Initially, we address those issues which revolve around the applicable statute of limitations and the exclusion of evidence of conduct of Defendant Colvin which occurred prior to 5 December 1986.\nDefendants first contend that the trial court committed reversible error in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiff\u2019s claim arising out of the defendants\u2019 conduct prior to 5 December 1986 was barred by the three-year statute of limitations applying to claims of intentional infliction of emotional distress. Secondly, they argue that plaintiff\u2019s counsel made admissions during the arguments on preliminary motions that effectively foreclosed plaintiff seeking damages for events occurring prior to 5 December 1986. Third, they argue that the trial judge committed error in refusing to instruct the jury on the applicable statute of limitations. Finally, they assert that the trial court\u2019s denial of the defendants\u2019 motion in limine to exclude evidence of events prior to 5 December 1986 was reversible error.\nWe hold that the evidence of conduct occurring prior to the 5 December 1986 date was not evidence of complete and separate torts, but rather was evidence of the elements of the claim itself and therefore, was not barred by the statute of limitations. Accordingly, we overrule the defendants\u2019 assignments of error based on the statute of limitations.\nA.\nThe defendants assert that the plaintiffs claim for intentional infliction of emotional distress is barred by the three-year statute of limitations found at N.C. Gen. Stat. \u00a7 1-52(5). See also Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683 (1990), aff\u2019d in part and reversed in part on other grounds, 331 N.C. 73, 414 S.E.2d 22 (1992).\nIt is well settled in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, the plaintiff\u2019s evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiffs favor. Hornby v. Pennsylvania National Mutual Casualty Insurance Co., 62 N.C. App. 419, 303 S.E.2d 332, cert. denied, 309 N.C. 461, 307 S.E.2d 364 (1983). Where more than a scintilla of evidence has been presented by the plaintiff which supports each element of his prima facie case, a directed verdict should be denied. Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). A motion for a judgment notwithstanding the verdict is essentially the renewal of the directed verdict motion, and the standards are the same. Miller v. Cannon Motors, Inc., 40 N.C. App. 48, 257 S.E.2d 925 (1979). Both motions serve to test the sufficiency of the evidence presented at trial, first after the plaintiff\u2019s case in chief and then again after the jury\u2019s decision.\nIn order to prove a claim for intentional infliction of emotional distress, the plaintiff is required to show that the defendant (1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress. Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.E.2d 116, review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The tort may also lie where a \u201cdefendant\u2019s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress.\u201d Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 330 (1981). The statute of limitations for the tort of intentional infliction of emotional distress is three years. Id. at 444, 276 S.E.2d at 330. \u201cCivil actions can only be commenced . . . [within the three-year period], after the cause of action has accrued, . . . .\u201d N.C. Gen. Stat. \u00a7 l-15(a) (1983).\nThe recent decision by the North Carolina Supreme Court, Waddle, 331 N.C. 73, 414 S.E.2d 22, held that where the plaintiff could not show that \u201cany of the specific incidents\u201d took place within the statutory period, she could not survive a motion for summary judgment. In Waddle, suit was filed on 20 April 1988. Both plaintiffs alleged intentional infliction of emotional distress in response to repeated harassment and sexual innuendoes by the defendant Sparks. The purported harassment began sometime in 1983. Both the defendants pleaded the statute of limitations as an affirmative defense in their answer and moved for summary judgment on that basis after depositions of the plaintiffs were taken. The co-plaintiff, Simpson, could not produce evidence of any specific acts of harassment within three years of the filing of the suit. \u201cNot only could she not remember a day or month when any of defendant\u2019s alleged comments of a sexually suggestive nature occurred, but she also failed to recall the year they occurred.\u201d Waddle, 331 N.C. at 86, 414 S.E.2d at 29. \u201cIf plaintiff Simpson could have testified that any of the specific incidents with Sparks occurred as late as February of 1986, her evidentiary forecast . . . would have been sufficient to survive a summary judgment motion based on the statute of limitations.\u201d Id. at 87, 414 S.E.2d at 29.\nThe issue in Waddle, as to the plaintiff Simpson, was whether there was sufficient evidence of each element of the tort to create an issue for the jury to decide at trial. Simpson could not show any evidence of one of the elements of the tort, and therefore, summary judgment was appropriate. However, the Court in no way suggested that the prior occurrences would have been excluded at trial, nor was the issue of exclusion of evidence before the Court. Moreover, in the case at bar, there were two incidents occurring on or after 5 December 1986. Therefore, there was sufficient evidence to create an issue to be decided at trial, certainly when combined with evidence of the incidents of alleged conduct which took place in 1985.\nThe defendants rely on the rule of Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, which established that three years is the applicable statute of limitations for claims of intentional infliction of emotional distress and that evidence of the defendants\u2019 intentional torts against the plaintiff which took place prior to the applicable limitations period may not be considered in determining damages. However, both the law and the facts of Dickens are distinguishable from the case at bar.\nIn Dickens, the plaintiff alleged intentional infliction of emotional distress in his complaint which was filed more than one year and less than three years after the incident complained of took place. The action arose out of a single occurrence during which the defendant not only committed an assault and battery (governed by the one-year statute of limitations of G.S. \u00a7 1-54(3)) against the plaintiff, but also made significant threats of future harm. The defendant argued that the action was only one for assault and battery, although cast as one for intentional infliction of emotional distress. They further argued that even if the plaintiff had alleged a cause of action for emotional distress, that it, too, was governed by the one-year statute. The Supreme Court disagreed, finding that the more general language of G.S. \u00a7 1-52(5) controlled the intentional infliction claim and that the plaintiff\u2019s showing was sufficient to create an actionable claim for emotional distress. The Court concluded that \u201c[although the assaults and batteries serve to color and give impetus to the future threat and its impact on plaintiff\u2019s emotional condition, plaintiff may not recover damages flowing directly from the assaults and batteries themselves.\u201d Dickens, 302 N.C. at 455, n. 11, 276 S.E.2d at 336 (emphasis added). The Court further stated that, \u201c[although plaintiff\u2019s recovery for injury, mental or physical, directly caused by the assaults and batteries is barred by the statute of limitations, these assaults and batteries may be considered in determining the outrageous character of the ultimate threat and the extent of plaintiff\u2019s mental or emotional distress caused by it.\u201d Id. Thus, while the Court did not allow damages for the separate torts, it did allow the evidence of the extreme and outrageous conduct of the defendant as an element of the plaintiffs emotional distress claim, even though an assault and battery claim was barred.\nIn the case sub judice, the evidence presented at trial tended to indicate that incidents between the plaintiff and Defendant Colvin began in early 1985, soon after he was hired by Thalhimers in 1984. According to the plaintiffs testimony, the first conversation of a sexual nature was-on a trip to Sears in Hanes Mall in Winston-Salem to pick up supplies for the Hanes Mall Thalhimers location. The defendant asked her if she\u2019d ever had an affair with anyone. She responded that she had not. The plaintiff also testified to the following:\nA. He told me he liked women with large breasts.\nQ. When he made that statement to you, can you tell the ladies and gentlemen of the jury what he was looking at?\nA. He was looking down at my breast area.\nOn another occasion of sexually related conduct, the plaintiff testified that\n[w]e were moving the desk. And I was on one side and he was on the other. And I had hold of the desk and he came around on my side and he rubbed his penis across my hand. And I don\u2019t know how, but it got caught in my ring and I jerked my hand away because was \u2014 it just flew all over me, embarrassed me. I was just humiliated. I mean it just \u2014 it just embarrassed me to death.\nThe plaintiff also testified that the next day\nhe called me down to the office. And he was sitting on my desk facing me. And he told me to pull my pants down because he wanted to see a bee sting. And he didn\u2019t smile. He had that same dirty grin on his face.\nShe told him at that time that he made her sick to her stomach. He then \u201cjerked my door open and slammed it and left.\u201d Except for the last incident, which plaintiff testified could have been an accident, the defendant never physically touched the plaintiff.\nOn 24 September 1985, the plaintiff submitted some twenty-two complaints about Mr. Colvin to Tida Williams, personnel manager. She told Ms. Williams that she would be hiring an attorney to bring harassment, charges against Colvin. Ms. Williams recorded the complaints and the conversation with the plaintiff in a file memorandum and spoke to Colvin about his behavior.\nIncidents continued between the plaintiff and the defendant throughout 1986 until her resignation in 1987. According to the plaintiffs testimony, the occurrences ceased to be sexual in nature, but began to follow a retaliatory scheme. She testified that, \u201cHe would call me and hang up on me. He wouldn\u2019t say bye. He would slam the phone down.\u201d She further stated that the defendant\u2019s behavior \u201cgot worse and worse until I left the company.\u201d She testified that he called her \u201ca hangman, gestapo, Nazi, . . . any kind of demoralizing name.\u201d\nThe evidence indicated that the plaintiff notified upper management again in early 1986 about Colvin\u2019s behavior towards her. Shortly after she spoke with those individuals, Colvin came into her office and told her that he knew of her accusations. She testified that the defendant clenched his fists \u201cand put his finger up in front of me and he told me he was going to get me fired.\u201d\nThe plaintiff testified that after the above meeting, Mr. Colvin\u2019s behavior became \u201cmore extreme and more intent.\u201d She testified that once he called her office ten times in thirty minutes and that on another occasion, she was required to hire unqualified employees and then was told she had improperly trained them when they were asked to resign.\nThe plaintiff stated that she called Steve Loomis, Vice-President of Loss Prevention, on 15 November 1986, to discuss Colvin\u2019s continued harassment. On 3 December 1986, Mr. Loomis and Mr. Colvin met with the plaintiff. She testified that during that meeting she became aware that all of the management personnel with whom she had spoken had also discussed her confidential conversations with Colvin. At the meeting, Loomis said that she had a serious attitude problem. She had not previously met Loomis (except briefly at a meeting), nor had she ever been under his supervision. Loomis told her that her accusations against Colvin were not true. She testified that Loomis and Colvin began walking \u201caround me and around me. And when I would try to say something, he [Colvin] would tell me to shut up. He said \u2018you are here to listen and not to talk.\u2019 \u201d She further testified that Loomis called her a \u201cgestapo and Nazi\u201d and that Colvin would then laugh. She became so upset during that meeting that she could not recall how it ended.\nThe plaintiff testified that approximately two weeks later, on 16 December 1986, Tida Williams, Steve Loomis, and Colvin arrived late in the day without notice and delivered to her a completed performance evaluation. She was told to sign the document even though the evaluation was negative and she disputed the contents. On 10 January 1987, the plaintiff was called into Thalhimers\u2019 personnel office by Mr. Colvin and was placed on probation. Tida Williams, the Personnel Manager, was present and was taking notes. On 5 February 1987, the plaintiff resigned. At the time of her resignation, she had been under a doctor\u2019s care since December. She stated in her resignation letter the following:\nMy reasons for my resignation are: I cannot return to Thalhimers\u2019 because I feel it would be harmful to my mental and physical health. This is due to the direct actions of Bud Colvin, my present supervisor, and also comments made to me \u2014against me and to me by Steve Loomis, vice president of loss prevention, in the past few months.\nWhen I went to the company and complained to them about serious problems with Bud Colvin, I was punished for this. Bud Colvin even told me that he was going to get me! I was spoken to over and over again as if I was nothing.\nSteve Loomis called me a \u201changman, Rambo, and the final blow, the gestapo!\u201d Bud Colvin has also called me these words before.\nI feel I have lost my self esteem and self worth as an employee and as a person. All these months of extreme stress has caused me mental and physical harm. It has also affected my personal life at home.\n(Emphasis in original.) It is clear that the plaintiff presented evidence of specific incidents occurring within three years of the filing of the suit against Thalhimers. Both the evaluation meeting and the probationary meeting occurred within that period. The evaluation meeting was a direct result of the meeting two weeks before between Loomis, Colvin, and the plaintiff. Further, the plaintiff then produced evidence that the actions of her employer that occurred in December caused her to seek medical attention from two doctors shortly thereafter.\nIn order to survive the defendants\u2019 motion for directed verdict, the plaintiff, in addition to showing the intentional acts of the defendants, was also required to produce evidence of \u201cemotional 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.\u201d Waddle, 331 N.C. at 83, 414 S.E.2d at 27, quoting Johnson v. Ruark Obstetrics & Gynecology Assoc., 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990) (emphasis in original).\nSince \u201c[t]he claim [for intentional infliction of emotional distress] exists \u2018when a defendant\u2019s conduct exceeds all bounds usually tolerated by decent society\u2019 and the conduct \u2018causes mental distress of a very serious kind,\u2019 \u201d Hogan, 79 N.C. App. at 487, 340 S.E.2d at 119; conversely, the tort does not come into existence until the continued conduct of the defendant causes extreme emotional distress. While as defendants point out in their brief, \u201c[pjlaintiff was aware of each of the acts of Defendant Colvin at the time it occurred,\u201d the plaintiff could not create a cause of action at the time if no cause of action had accrued. If she brought suit in September of 1985, having suffered no emotional distress, she might very well have met the same result on summary judgment as the plaintiff in Waddle.\nIndeed, prior to the plaintiff\u2019s visits to medical professionals, she would have been unable to meet the necessarily high standard set forth in Waddle. In reversing the Court of Appeals\u2019 decision in Waddle, the Supreme Court stated that the plaintiff Waddle showed no forecast of severe emotional distress, \u201cany medical documentation . . .\u201d or \u201cevidence of \u2018severe and disabling\u2019 psychological problems within the meaning of the test laid down in Johnson v. Ruark.\" 331 N.C. at 85, 414 S.E.2d at 28 (emphasis added). The Court concluded that plaintiff Waddle \u201cfailed to forecast sufficient evidence of the \u2018severe emotional distress\u2019 element of the tort . . .\u201d and therefore that summary judgment against the plaintiff was appropriate.\nIn the case at bar, the defendants argue that the acts of Defendant Colvin that occurred prior to December 1986 are barred by the three-year statute. However, this assertion is premised on the action being complete at the time of each of those events and that the events constituted a separate tort in and of themselves. If all of the elements of the tort were not present, then no cause of action for intentional infliction of emotional distress existed at that time.\nAs indicated in Waddle, actions such as the one in the case sub judice often take years to manifest the severe emotional results required to complete the tort. To preclude the evidence of the very actions giving rise to the resulting damage defies common sense. The statutes of limitations serve to bar claims, not evidence of contributing factors to an ultimate claim that has not yet come into existence. \u201cAs our courts have frequently noted, in no event can a statute of limitations begin to run until the plaintiff is entitled to institute action. . . . Ordinarily, the period of the statute of limitations begins to run when the plaintiff\u2019s right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete. ...\u201d Bolick v. American Barmag Corp., 54 N.C. App. 589, 594, 284 S.E.2d 188, 191, decision modified on other grounds, 306 N.C. 364, 293 S.E.2d 415 (1981) (emphasis in original). Obviously, outrageous conduct by the defendant alone would confer no cause of action on the plaintiff in the case until she suffered extreme emotional distress caused by his actions.\nIn the instant case, only one cause of action accrued at the time that the actions of the defendant did in fact cause emotional distress of the calibre set out in Waddle. Prior to the last few months of the plaintiff\u2019s employment, there was insufficient evidence of the third prong of an intentional infliction claim and thus no separate and complete tort. Evidence of the elements of the tort would not be barred by the statute of limitations of G.S. \u00a7 1-52(5) unless the elements were part of a completely separate cause of action that was in fact time barred. To parse out the intentional or reckless acts of a defendant due to the statute of limitations, when those acts have not yet caused the damage required to complete the tort, would allow persons to continually harass potential plaintiffs until such time as the emotional damage became severe enough to cause the extreme result, then exclude much of their conduct giving rise to the damage.\nWhether certain evidence should be admitted rests in the able hands of the trial court and its application of the Rules of Evidence. In summary, we hold that the trial court properly admitted the evidence of defendants\u2019 actions during 1985 and 1986 as evidence of the first element of the tort of intentional infliction of emotional distress. We also hold that, based on the above reasoning, the trial judge\u2019s denial of the defendants\u2019 motion in limine was correct. Accordingly, we overrule the defendants\u2019 assignment of error with respect to the pretrial motion. Further, for the same reasons, we hold that the trial court properly instructed the jury on the issues to be decided at trial.\nB.\nThe defendants also allege that if the statute of limitations does not operate to preclude recovery for events occurring on or before 5 December 1986, then the arguments of the plaintiff\u2019s counsel made during pretrial hearings constitute judicial admissions and serve to limit the cause of action to the later events. We disagree and accordingly overrule this assignment of error.\n\u201cA judicial admission is a formal concession which is made by a party in the course of litigation for the purpose of withdrawing a particular fact from the realm of the dispute.\u201d Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 604, 276 S.E.2d 375, 379 (1981). \u201cSuch an admission is not evidence, but it, instead, serves to remove the admitted fact from the trial by formally conceding its existence.\u201d Id. A stipulation as to the law is not binding on the parties or the court. State ex rel. Carringer v. Alverson, 254 N.C. 204, 118 S.E.2d 408 (1961). Generally, admissions are \u201cordinarily made by a pleading [or lack thereof], or by a response [or failure to respond] to a pretrial demand for admissions, or by stipulation entered into before or at trial.\u201d 2 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 166 (2d ed. 1982); see also \u00a7 171. \u201c[I]n the absence of express authority, an attorney generally has no power, by stipulation, agreement, or otherwise, to waive or surrender the substantial legal rights of his client . . . .\u201d Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957) (counsel\u2019s statements that he did not rely on a theory stated in the complaint where the complaint alleged only that theory was not binding on party).\nThe defendants argue that the statements made to the trial court by plaintiff\u2019s counsel during the summary judgment hearing had the effect of constituting an admission. The attorney\u2019s statements all concerned the legal effect of the statute of limitations on their client\u2019s claim. Specifically, the attorneys told the trial judge repeatedly that they were not attempting to recover for damages arising out of events that occurred prior to the three-year statutory proscription.\nNotwithstanding the resolution of this issue that appears in Part A of this opinion, those statements made by counsel during summary judgment arguments were not judicial admissions and were not binding on the plaintiff in the subsequent action. The statements were not formal concessions nor were they intended to withdraw a particular fact from the realm of dispute. Rather, the comments were intended to respond to the court\u2019s questions regarding the defendants\u2019 summary judgment motion. \u201cStipulations will receive a reasonable construction so as to effect the intentions of the parties, but in ascertaining the intentions of the parties, the language employed in the agreement will not be construed in such a manner that a fact which is obviously intended to be controverted is admitted or that a right which is plainly not intended to be waived is relinquished.\u201d Outer Banks, 302 N.C. at 605, 276 S.E.2d at 380.\nWe hold that these principles of law apply in the instant case, and that statements of counsel did not constitute admissions to be used against the plaintiff in the subsequent trial. We accordingly overrule this assignment of error.\nII.\nDefendants contend in their fourth assignment of error that even assuming arguendo that the conduct of the defendants was not excluded by the statute of limitations; as a matter of law, there was insufficient evidence to establish the plaintiff\u2019s claim for intentional infliction of emotional distress. They further argue that the evidence does not support the claim that Thalhimers ratified the acts of Defendant Colvin and therefore Thalhimers could not be held liable for his actions. We find this argument without merit and accordingly affirm the trial court\u2019s decision.\nAs indicated in Part I of this opinion, there was ample evidence presented at trial from which the jury could reasonably determine that Colvin\u2019s acts were extreme and outrageous, and that his actions intended to cause the plaintiff emotional distress. As pointed out in Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 436, 378 S.E.2d 232, 235 (1989), disc. review improvidently allowed, 326 N.C. 356, 388 S.E.2d 769 (1990), \u201conce conduct is shown which may be reasonably regarded as extreme and outrageous, it is for the jury to determine, upon proper instruction, whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability.\u201d\nFurther, as to the defendants\u2019 contention that the plaintiff failed to produce sufficient evidence of defendants\u2019 intent, as noted earlier, the claim for intentional infliction of emotional distress may also lie where the defendant\u2019s actions indicate a reckless indifference to the likelihood that they will cause emotional distress to the plaintiff. :\nLikewise, we find that the record indicates that the plaintiff testified regarding repeated conversations with various supervisory personnel along the management chain at Thalhimers and that as early as 1985 reported to the personnel manager that Colvin was harassing her. She stated that discussions she thought were held in confidence were reported to Colvin. She further testified that \u201cnothing was done\u201d during the subsequent eighteen months that she worked for Thalhimers. Testimony also indicated that supervisors told her that complaints of that nature were not welcome from employees. \u201cThe jury may find ratification from any course of conduct on the part of the principal which reasonably tends to show an intention on his part to ratify the agent\u2019s unauthorized acts. Such course of conduct may involve an omission to act.\u201d Brown at 437, 378 S.E.2d at 236 (citations omitted).\nWe find that the trial court correctly sent the case to the jury and was also correct in accepting its verdict. Ample evidence was presented to the jury on the issues of conduct, intent, and ratification by Colvin and his employer to establish a prima facie case of intentional infliction of emotional distress. We accordingly affirm the trial court\u2019s decision and overrule this assignment of error.\nIII.\nIn their fifth assignment of error, defendants appeal the trial court\u2019s denial of their motions for mistrial and a new trial. They contend that the verdict was rendered by a ten-person jury thereby denying their client\u2019s constitutional right to a jury of twelve persons. Alternatively, they argue that the misconduct of the plaintiff\u2019s counsel that resulted in the elimination of two of the jurors was grounds for a mistrial and new trial. We find no error in the trial court\u2019s decision.\nDefendants admit in their brief to this Court that the trial judge on the first morning of the trial before any evidence was presented \u201cinquired of counsel for both parties as to whether they would agree to a jury down to ten persons and the counsel for both parties agreed.\u201d However, they argue that the agreement by defendants to a jury of ten persons was in order to allow the trial to proceed in the event of illness or emergency of jurors, an \u201cinnocent reason\u201d, rather than because two jurors read newspaper reports regarding evidence excluded by pretrial motion. They contend that plaintiff\u2019s counsel intentionally \u201cleaked\u201d information to the press after pretrial motions hearings, and that information was in turn inaccurately reported by the Winston-Salem Journal, and the jurors reading the newspaper article (who were excused by the trial court) inherently tainted the entire trial proceedings.\nWe do not agree with this argument. The disputed newspaper article reported that \u201c[i]n pretrial motions, McGuire and lead counsel Charles Roberts asked Judge James A. Beaty, Jr. to prevent Mrs. Bryant\u2019s attorneys from using evidence that they say will show Colvin was sexually involved with other women at other Thalhimers stores in North Carolina. Beaty ruled that no such evidence could be introduced unless . . . [the plaintiff\u2019s counsel] can show it is relevant.\u201d The article continued with a report of the plaintiff\u2019s first day of testimony.\nThe defendants argued to the trial judge that plaintiff\u2019s counsel told the reporter the basis of the excluded evidence even though the defendants were aware that the motions were argued in open court the previous day and that those motions were a part of the public record. Plaintiff\u2019s counsel denied the allegation and stated that he had only told the reporter that the motion was granted. The trial court polled the jury with regard to the newspaper article and determined that two jurors who had read the article should be excused. Those jurors were excused over the defendants\u2019 objection.\nDuring the discussions following the trial court\u2019s questioning of the jury, counsel for the defendants stated to the trial court that they \u201cwould prefer to proceed with the full jury than to have it reduced by either of those gentlemen,\u201d even though admittedly they had stipulated to a jury of less than twelve. However, they requested that they be allowed to withdraw their stipulation because the loss of the two male jury members was the result of an alleged violation of ethical rules by plaintiffs counsel. We do not feel that an agreement to have a verdict by less than twelve jurors should depend on whether the jurors are excused by the court for an \u201cinnocent\u201d reason or a so called \u201cguilty\u201d reason. The purpose of a jury trial is to ensure that the issues are fairly decided for all parties; it appears here that the actions of plaintiff\u2019s counsel, while not approved by this Court, did not jeopardize the proceedings.\n\u201c[A] trial judge in a civil case has the power, in his discretion, to order a mistrial at any time before the verdict is returned.\u201d Elks v. Hannan, 68 N.C. App. 757, 758, 315 S.E.2d 553, 554 (1984). Additionally, \u201c[t]he granting or denial of a motion for a new trial . . . is generally regarded as resting within the sound discretion of the triaFjudge, and his ruling will not be disturbed on appeal in the absence of a manifest abuse of such discretion, or as sometimes stated, unless it is clearly erroneous.\u201d Stone v. Griffin Baking Co., 257 N.C. 103, 105, 125 S.E.2d 363, 365 (1962). In the instant case, the trial court individually polled all the jurors before concluding that the trial could proceed fairly with the ten remaining jurors. He further ensured that those remaining on the jury were made aware of their responsibility to render a fair and impartial decision through curative instructions at the close of the evidence. Based on our review of the record, we find no abuse of discretion by the trial judge in refusing the motions for a mistrial and a new trial.\nWe have reviewed the defendants\u2019 remaining assignments of error and find no merit in those contentions.\nNo error.\nJudges WELLS and GREENE concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellee.", "Haynsworth, Baldwin, Johnson and Greaves, P.A., by Charles P. Roberts III and Gregory P. McGuire, for defendant-appellants." ], "corrections": "", "head_matter": "PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants\nNo. 9121SC814\n(Filed 21 December 1993)\n1. Intentional Infliction of Mental Distress \u00a7 2 (NCI4th)\u2014 statute of limitations \u2014 acts more than three years before claim filed\nEvidence of sexual harassment and retaliation which occurred more than three years prior to the filing of plaintiff\u2019s claim against her supervisor and employer for intentional infliction of emotional distress did not constitute evidence of complete and separate torts but was evidence of elements of the claim itself and was not barred by the three-year statute of limitations. Furthermore, plaintiff\u2019s claim was not barred by the statute of limitations where she presented evidence of specific incidents which occurred within three years of the filing of her claim and of medical treatment for emotional distress that she received during that time as a result of her supervisor\u2019s conduct.\nAm Jur 2d, Fright, Shock, and Mental Disturbance \u00a7 17.\n2. Evidence and Witnesses \u00a7 1174 (NCI4th) \u2014 summary judgment hearing \u2014statements by attorney \u2014 not judicial admissions\nStatements made by plaintiff\u2019s counsel to the trial court during a summary judgment hearing to the effect that plaintiff was not seeking damages for events occurring more than three years before the complaint was filed did not constitute judicial admissions and were not binding on the plaintiff in the subsequent trial.\nAm Jur 2d, Evidence \u00a7\u00a7 597, 615, 665.\n3. Intentional Infliction of Mental Distress \u00a7 3 (NCI4th) \u2014 sufficiency of evidence against supervisor \u2014 employer\u2019s ratification of supervisor\u2019s acts\nPlaintiff\u2019s evidence of conduct and intent was sufficient for submission to the jury of plaintiff\u2019s claim against her former supervisor for intentional infliction of emotional distress where it tended to show that when plaintiff rebuffed sexual advances by defendant supervisor, he began treating plaintiff unfairly, repeatedly threatened her and her job, and created situations in which she could not effectively do the work assigned to her; plaintiff received unfavorable evaluations, was required to hire staff persons she felt were unqualified, and was called names such as \u201cNazi,\u201d \u201cRambo,\u201d and \u201cGestapo\u201d by defendant supervisor; and defendant supervisor\u2019s conduct caused plaintiff to seek medical attention from two doctors and to resign from her job. Furthermore, the evidence supported plaintiff\u2019s claim that defendant employer ratified the acts of defendant supervisor so that the employer was liable for his actions where it tended to show that plaintiff submitted twenty-two complaints about her supervisor to the employer\u2019s personnel manager and held conversations with other management personnel about defendant\u2019s conduct; plaintiff\u2019s discussions with management personnel which she thought were held in confidence were reported to defendant supervisor; management personnel told plaintiff that complaints of that nature were not welcome from employees; nothing was ever done about defendant supervisor\u2019s conduct toward plaintiff; plaintiff was told that she had a bad attitude and was placed on probation; and plaintiff thereafter resigned her job.\nAm Jur 2d, Fright, Shock, and Mental Disturbance \u00a7 17.\n4. Jury \u00a7 68 (NCI4th)\u2014 jury less than twelve \u2014stipulation \u2014 excusal of jurors for \u201cguilty\u201d rather than \u201cinnocent\u201d reasons\nWhere the parties in an action for intentional infliction of emotional distress stipulated at the beginning of the trial that the trial could proceed with a jury of ten persons if necessary, the trial court did not abuse its discretion in the denial of defendants\u2019 motions for a mistrial and a new trial because the verdict was rendered by a ten-person jury after the trial court excused two jurors who had read a newspaper article reporting that the court had allowed defendants\u2019 pretrial motion to suppress evidence of the individual defendant\u2019s sexual involvement with other women employed by defendant employer. There was no merit to defendants\u2019 argument that their agreement to a jury of ten persons was only to allow the trial to proceed in the event of illness or emergency of jurors, an \u201cinnocent\u201d reason, and not to allow a jury of less than twelve for the \u201cguilty\u201d reason that two jurors had read a newspaper article about evidence excluded by pretrial motion, since an agreement to have a verdict by less than twelve jurors does not depend on whether the jurors are excused for an \u201cinnocent\u201d rather than a \u201cguilty\u201d reason.\nAm Jur 2d, Jury \u00a7 124 et seq.\nAppeal by defendants from judgment entered 25 January 1991 in Forsyth County Superior Court by Judge James A. Beaty, Jr. Heard in the Court of Appeals 15 September 1992.\nThis action arises out of a female employee\u2019s complaints against a male supervisor at Thalhimer Brothers in Winston-Salem. Plaintiff was employed by Thalhimers from September 1982 until her resignation in February 1987.\nThe plaintiff filed suit on 5 December 1989, seeking damages for intentional infliction of emotional distress, wrongful termination, and negligent retention. The complaint alleged that the defendant Scruggs Colvin, who was employed by Thalhimers as the regional manager in loss prevention in 1984, began harassing her sexually in early 1985.\nThe plaintiff further alleged that when she rebuffed the sexual advances of her supervisor, he began treating her unfairly in an attempt to force her resignation. From 1986 until her resignation, the complaint alleged that he repeatedly threatened her and her job, while creating situations in which she could not effectively do the work assigned to her. She received unfavorable evaluations, she was required to hire staff persons that she felt were unqualified, and she was called names such as \u201cNazi\u201d, \u201cRambo\u201d, and \u201cGestapo\u201d by the defendant. Plaintiff contended that during this period she complained to supervisory personnel with the corporation about these incidents of harassment and retaliation.\nThe defendants\u2019 answer denied the material allegations of the complaint and raised, inter alia, the affirmative defense of the three-year statute of limitations. The defendants asserted that the statute barred recovery for damages for events which occurred prior to 5 December 1986. Defendants moved for summary judgment on that basis. The motion was denied on 15 November 1990.\nJust prior to trial, the defendants filed motions in limine seeking to exclude evidence of Defendant Colvin\u2019s prior sexual relationships with other employees of Thalhimers and to exclude evidence of events that was barred by the statute of limitations. Additionally, they filed a motion to compel admissions based on representations made by plaintiff\u2019s counsel during the earlier summary judgment hearing to the effect that the plaintiff was not seeking damages for events occurring prior to 5 December 1986. The motion to exclude the evidence of past relationships was allowed, while the motion to exclude the incidents prior to December 1986 and the motion to compel admissions were denied.\nJury selection was completed on 9 January 1991. The next day, an article appeared in the Winston-Salem Journal which reported the evidence of the prior sexual relationships of Defendant Colvin and that it had been excluded from the trial. Two of the jurors had read the article and were excused by the judge. Three other jurors were aware of the article, and one juror had been told by her husband not to read the article. Defendants moved for a mistrial, having produced evidence that the plaintiff\u2019s counsel had released the excluded evidence to the newspaper. That motion was denied. The trial proceeded with ten jurors.\nAt the close of plaintiff\u2019s evidence, defendants moved for a directed verdict which was denied and subsequently renewed at the close of all the evidence. At that time, the trial court allowed the motion with respect to the wrongful termination claim.\nThe claim for intentional infliction of emotional distress went to the jury on 23 January 1991. The trial judge denied the defendants\u2019 request for an instruction on the three-year statute of limitations. The following day, the jury returned a verdict for the plaintiff of $25,000.00 in compensatory damages and $225,000.00 in punitive damages. On 1 February 1991, the defendants filed motions for judgment notwithstanding the verdict and a new trial. These motions were denied by the trial judge. Defendants appeal from the judgment entered upon the jury verdict.\nKennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellee.\nHaynsworth, Baldwin, Johnson and Greaves, P.A., by Charles P. Roberts III and Gregory P. McGuire, for defendant-appellants." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 48 }