{ "id": 11433006, "name": "NICOLE ZENOBILE, Plaintiff v. BRENT McKECUEN, ALFRED SANDERLIN, JEANNIE YOUNG, AND OTHER PEOPLE, PRESENTLY UNKNOWN, Defendants", "name_abbreviation": "Zenobile v. McKecuen", "decision_date": "2001-06-05", "docket_number": "No. COA00-739", "first_page": "104", "last_page": "111", "citations": [ { "type": "official", "cite": "144 N.C. App. 104" } ], "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": "439 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "335 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526672 ], "year": 1994, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0526-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "430 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525960 ], "year": 1993, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0519-01" ] }, { "cite": "245 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555360 ], "year": 1978, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0673-01" ] }, { "cite": "381 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "470" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527808 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "721" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0717-01" ] }, { "cite": "289 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "629" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523334 ], "year": 1982, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0638-01" ] }, { "cite": "223 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572488, 8572467, 8572446 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0619-03", "/nc/289/0619-02", "/nc/289/0619-01" ] }, { "cite": "220 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "809" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555982 ], "year": 1975, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0711-01" ] }, { "cite": "482 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11870835 ], "year": 1997, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0637-01" ] }, { "cite": "431 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549385, 2546925, 2547056, 2550452, 2549850 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0792-04", "/nc/333/0792-05", "/nc/333/0792-03", "/nc/333/0792-01", "/nc/333/0792-02" ] }, { "cite": "427 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "138" }, { "page": "138", "parenthetical": "italics in original" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525369 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "324" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0314-01" ] }, { "cite": "314 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526971 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0252-01" ] } ], "analysis": { "cardinality": 730, "char_count": 17603, "ocr_confidence": 0.766, "pagerank": { "raw": 2.937701432152821e-07, "percentile": 0.8478658408270134 }, "sha256": "44e8794eaf0137e586d4ff52a508e9eebf32d21b816d4a9d5088528fd9d402dc", "simhash": "1:ad83dfb0476d8c64", "word_count": 2867 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TIMMONS-GOODSON concur." ], "parties": [ "NICOLE ZENOBILE, Plaintiff v. BRENT McKECUEN, ALFRED SANDERLIN, JEANNIE YOUNG, AND OTHER PEOPLE, PRESENTLY UNKNOWN, Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nNicole Zenobile (plaintiff) appeals the 23 March 2000 order of the trial court granting defendant Jeannie Young\u2019s motion to dismiss. We reverse and remand.\nOn 2 June 1999, plaintiff, a dispatcher for the Elizabeth City Police Department (ECPD), filed a complaint naming only one defendant, Brent McKecuen, an officer with the ECPD. The complaint generally alleges that while plaintiff was at McKecuen\u2019s parents\u2019 house for a social gathering in mid-September of 1996, plaintiff \u201cbecame helpless\u201d and McKecuen filmed plaintiff with a video camera after others had removed her bathing suit. The complaint further alleges that McKecuen displayed the video tape to people at the house that night, and to members of the ECPD and other individuals during the next few days. The complaint sets forth claims for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED), and requests compensatory and punitive damages.\nOn 30 July 1999, McKecuen filed an answer denying the allegations and raising certain defenses. On 30 August 1999, plaintiff filed a \u201cMotion for Leave to File Amended Complaint,\u201d requesting leave to add two additional defendants, to add two additional claims, and to add additional allegations to the original complaint. Plaintiff also attached and filed with the motion her proposed amended complaint. McKecuen was served with a copy of plaintiff\u2019s motion and a copy of the amended complaint. The two proposed additional defendants were each served with a summons and a copy of the amended complaint.\nThe proposed amended complaint names Alfred Sanderlin and Jeannie Young as defendants in addition to McKecuen. It alleges that the three defendants \u201csingly and in concert\u201d engaged in conduct constituting IIED and NIED, and that they \u201cconspired to deprive [plaintiff] of her civil rights as a woman\u201d in violation of N.C.G.S. \u00a7 99D-1 (1999), \u201cInterference with Civil Rights.\u201d In addition, the amended complaint sets forth the alleged incident of mid-September of 1996 in further detail, including: that plaintiff was invited by Sanderlin to the house for a pool party; that Sanderlin asked Young to mix a drink for plaintiff; that Young mixed two drinks for plaintiff; that plaintiff drank as much as half of one drink although it \u201cdid not taste right\u201d; that plaintiff was rendered \u201cphysically helpless\u201d after ingesting the drink and became unconscious within thirty minutes; that Sanderlin said to McKecuen, \u201cGet the camcorder\u201d; that Young said to Sanderlin, \u201cIt\u2019s all yours, Al\u201d and, \u201cI need to know which way you\u2019re going on this, because I\u2019ve got money riding on it\u201d; that at one point plaintiff was carried to the living room sofa while she was gasping for air; that a paramedic, who was a personal friend of McKecuen, was called to the house to examine plaintiff; that plaintiff regained consciousness the following morning in an apartment belonging to an officer of the ECPD; that when she regained consciousness Sanderlin\u2019s fingers were penetrating her vagina; that after plaintiff reported the incident, defendants met at Young\u2019s house and conspired to cover up the incident.\nOn 14 October 1999, before the trial court had ruled on plaintiff\u2019s motion for leave to amend, Young filed an answer to the proposed amended complaint, denying the allegations and raising certain defenses. Young\u2019s first defense requests the court to dismiss plaintiff\u2019s claim against Young for failure to state a claim upon which relief may be granted pursuant to N.C.R. Civ. P. 12(b)(6). On 29 October 1999, Young filed an amendment to her answer adding as a defense that plaintiff\u2019s claims were barred by the Statute of Limitations. Following a hearing on Young\u2019s motion to dismiss, the trial court entered an order on 23 March 2000 granting Young\u2019s motion to dismiss. This order states, in pertinent part:\nAfter reviewing the Complaint and Amended Complaint and hearing arguments of counsel, it appears to the Court that the Amended Complaint fails to state a claim for which relief can be granted against Defendant Jeannie Young; and, in the alternative, there has been no proper amendment of the Complaint alleging claims against Defendant Jeannie Young; and, in the alternative, any attempt by Plaintiff to seek amendment by the Court would be futile in that the amendment would not relate back to the original filing of the Complaint.\nPlaintiff appeals from this order, assigning error to the trial court\u2019s conclusions that: (1) plaintiff\u2019s amended complaint fails to state a claim against Young upon which relief may be granted; (2) there was no proper amendment of the complaint; and (3) any attempt by plaintiff to seek amendment would be futile because the amendment would not relate back to the filing date of the original complaint.\nWe note that plaintiff\u2019s brief, containing two arguments, fails to comply with Rule 28(b)(5) of the Rules of Appellate Procedure, which requires that \u201c[i]mmediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal.\u201d N.C.R. App. P. 28(b)(5). The Rules of Appellate Procedure are mandatory and a failure to follow the rules subjects an appeal to dismissal. See, e.g., Wiseman v. Wiseman, 68 N.C. App. 252, 314 S.E.2d 566 (1984). However, in our discretion we deem it appropriate to consider plaintiffs three assignments of error because they correspond to the substance of the arguments in plaintiff\u2019s brief, and because we believe it is in the interest of justice to do so. See N.C.R. App. P. 2.\nRule 15 of the North Carolina Rules of Civil Procedure provides, in pertinent part:\nA party may amend his pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\nN.C.R. Civ. P. 15(a). Here, plaintiff sought \u201cleave of court\u201d to amend her complaint. In its order, the trial court held, in part, that \u201cany attempt by Plaintiff to seek amendment by the Court would be futile in that the amendment would not relate back to the original filing of the Complaint.\u201d However, the relation back principle \u201conly applies where the complaint is amended outside the relevant statute of limitations. It need not be considered where a pleading is amended before the statute of limitations expires.\u201d Simpson v. Hatteras Island Gallery Restaurant, 109 N.C. App. 314, 324, 427 S.E.2d 131, 138, disc. review denied, 333 N.C. 792, 431 S.E.2d 27 (1993). Instead, the issue is whether plaintiff filed her motion for leave to amend within the applicable statute of limitations period. \u201cThe relevant date for measuring the statute of limitations where an amendment to a pleading is concerned ... is the date of the filing of the motion, not the date the court rules on that motion.\u201d Simpson, 109 N.C. App. at 325, 427 S.E.2d at 138 (italics in original). Causes of action for emotional distress must be brought within three years from the date on which the action accrues. See N.C.G.S. \u00a7 1-52(5) (1999); Russell v. Adams, 125 N.C. App. 637, 640, 482 S.E.2d 30, 33 (1997). Here, the earliest date on which plaintiff\u2019s claim could have accrued is the date of the alleged incident, or mid-September of 1996. See N.C.G.S. \u00a7 1-52(16) (1999). Even assuming plaintiff\u2019s claim did accrue at the earliest possible date, plaintiff\u2019s motion for leave to amend, filed 30 August 1999, was filed prior to the running of the three-year statute of limitations. Thus, the court erred in concluding that any attempt by plaintiff to amend her complaint would have been futile.\nWe next address the trial court\u2019s conclusion that \u201cthere has been no proper amendment of the Complaint alleging claims against Defendant Jeannie Young.\u201d It appears from the record that the trial court failed to rule on plaintiff\u2019s motion for leave to amend. The trial court\u2019s decision to rule on Young\u2019s motion to dismiss before ruling on plaintiff\u2019s motion for leave to amend constitutes reversible error. \u201cThe Rules of Civil Procedure achieve their purpose of assuring a speedy trial by providing for and encouraging liberal amendments to the pleadings under Rule 15.\u201d Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 714, 220 S.E.2d 806, 809 (1975), disc. review denied, 289 N.C. 619, 223 S.E.2d 396 (1976). \u201cFailure to rule on a motion to amend contravenes this purpose by inviting piecemeal litigation and preventing consideration of the merits of the action on all the evidence available.\u201d Carolina Builders v. Gelder & Associates, 56 N.C. App. 638, 640, 289 S.E.2d 628, 629 (1982). The trial court should have declined to rule on Young\u2019s motion to dismiss until after ruling on plaintiff\u2019s motion.\nWe further hold that plaintiff\u2019s motion for leave to amend should have been allowed here. As noted above, Rule 15(a) of the Rules of Civil Procedure states that leave to amend pleadings \u201cshall be freely given when justice so requires.\u201d Where a plaintiff moves to amend a pleading in order to add a defendant to the lawsuit, there must be a claim asserted against the proposed defendant which \u201caris[es] out of the same transaction, occurrence, or series of transactions or occurrences\u201d underlying the claim asserted against the original defendant. N.C. R. Civ. P. 20(a); see Coffey v. Coffey, 94 N.C. App. 717, 721, 381 S.E.2d 467, 470 (1989). In addition, the plaintiff must provide notice of the motion to the existing parties. See Coffey, 94 N.C. App. at 721, 381 S.E.2d at 470. These requirements were satisfied here. Even where these requirements are satisfied, however, leave to amend a pleading may be properly denied under certain circumstances, including but not limited to undue delay, bad faith on the part of the movant, or undue prejudice to the opposing party by virtue of allowance of the amendment. See Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 678, 245 S.E.2d 782, 785 (1978). Here, we perceive no apparent reason why plaintiff\u2019s motion for leave to amend her complaint should be denied, particularly since plaintiff could have filed a separate action against Young and then moved to consolidate that action with her original suit against McKecuen. Accordingly, we remand for the trial court to enter an order granting plaintiffs motion to amend.\nWe turn now to the question of whether the trial court erred in determining that \u201cthe Amended Complaint fails to state a claim for which relief can be granted against Defendant Jeannie Young.\u201d Young asserts as a defense in her answer that plaintiffs complaint fails to state a claim upon which relief may be granted, and that plaintiffs action against Young should therefore be dismissed pursuant to Rule 12(b)(6). \u201cThe question presented by a motion to dismiss is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted.\u201d Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 524, 430 S.E.2d 476, 480 (1993). Furthermore, in analyzing the sufficiency of a complaint to withstand a Rule 12(b)(6) motion, the complaint must be liberally construed and should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. See id.\nWith respect to Young, plaintiffs amended complaint alleges three causes of action: IIED, NIED, and civil conspiracy to deprive plaintiff of her civil rights as a woman in violation of G.S. \u00a7 99D-1. The essential elements of the tort of IIED are (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another. See Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). To state a claim for NIED, a plaintiff must allege (1) negligent conduct on the part of defendants, (2) which defendants should have reasonably foreseen would cause plaintiff severe emotional distress, and (3) that the conduct did actually cause plaintiff to suffer severe emotional distress. See Andersen v. Baccus, 335 N.C. 526, 531, 439 S.E.2d 136, 139 (1994). G.S. \u00a7 99D-1 provides a civil cause of action where two or more persons, motivated by gender, conspire to interfere with the exercise or enjoyment by any other person of a constitutional right, and where one or more persons engaged in the conspiracy, in order to commit any act in furtherance of the conspiracy, uses force, repeated harassment, violence, physical harm, or threats of physical harm. See N.C.G.S. \u00a7 99D-1.\nThe facts alleged in plaintiffs complaint and amended complaint, taken as true, indicate the following: that Young was responsible for mixing the drinks which rendered plaintiff physically helpless; that Young knew or should have known that plaintiff became physically helpless, and later unconscious, after ingesting the drinks; that Young said to Sanderlin, \u201cIt\u2019s all yours, Al\u201d and, \u201cI need to know which way you\u2019re going on this, because I\u2019ve got money riding on it\u201d; that Young was present while plaintiff, physically helpless, was stripped naked, filmed, carried to the sofa gasping for air, examined by a paramedic, and removed from the house by Sanderlin; that Young later sought to conceal her involvement in the incident despite knowing that the incident was the subject of a potential criminal investigation; and that after plaintiff reported the incident, Young along with the other two defendants acted upon a common scheme to harass and discredit plaintiff, and to destroy evidence and obstruct justice, in furtherance of the common scheme to interfere with plaintiff\u2019s exercise and enjoyment of her civil rights as a woman. Furthermore, plaintiff\u2019s amended complaint specifically alleges that defendants\u2019 conduct was \u201ccommitted with reckless disregard,\u201d was \u201cintentional,\u201d and constituted \u201cextreme and outrageous conduct exceeding all bounds of decency tolerated by society\u201d and was \u201cintended to cause and did cause emotional and mental distress\u201d to plaintiff. Plaintiff also states in her amended complaint that she has suffered extreme emotional distress as a proximate cause of defendants\u2019 acts, including anxiety disorder, depression, and post-traumatic stress disorder.\nPlaintiff\u2019s allegations, taken as true, are sufficient to state claims against Young for IIED, NIED, and a violation of G.S. \u00a7 99D-1, and it was error for the trial court to dismiss these claims. The trial court\u2019s order dismissing plaintiff\u2019s claims as to defendant Young is therefore reversed and we remand for further proceedings.\nReversed.\nJudges WYNN and TIMMONS-GOODSON concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff-appellant.", "Ward & Smith, P.A., by V. Stuart Couch and A. Charles Ellis, for defendant-appellee Jeannie Young." ], "corrections": "", "head_matter": "NICOLE ZENOBILE, Plaintiff v. BRENT McKECUEN, ALFRED SANDERLIN, JEANNIE YOUNG, AND OTHER PEOPLE, PRESENTLY UNKNOWN, Defendants\nNo. COA00-739\n(Filed 5 June 2001)\n1. Pleadings\u2014 amendment of complaint \u2014 relation back\nThe trial court erred in an emotional distress action in its alternate conclusion that any attempt by plaintiff to amend her complaint would be futile in that the amendment would not relate back to the original filing. The relevant date is the date of the filing of the motion for leave to amend, not the date the court rules on the motion; even assuming that this plaintiffs claim accrued at the earliest possible date, plaintiffs motion for leave to amend was filed prior to the running of the statute of limitations.\n2. Pleadings\u2014 amendment \u2014 motion to dismiss \u2014 ruled upon first\nThe trial court erred in an emotional distress action in its alternate conclusion that there was no proper amendment of the complaint where the court ruled on a motion to dismiss before ruling on the motion for leave to amend.\n3. Pleadings\u2014 leave to amend\nLeave to amend a complaint for emotional distress to add defendants and claims should have been allowed where the claims arose from the same occurrence, plaintiff provided notice of the motion to existing parties, and there was no apparent reason to deny leave to amend.\n4. Emotional Distress\u2014 claim for relief \u2014 sufficiently stated\nThe trial court erred by determining that a complaint failed to state a claim for which relief could be granted as to defendant Young where the complaint alleged causes of action for intentional and negligent infliction of emotional distress and civil conspiracy to deprive plaintiff of her rights as a woman under N.C.G.S. \u00a7 99D-1, and the alleged facts, taken as true, indicate that Young was responsible for mixing the drinks which rendered plaintiff physically helpless; that Young knew or should have known that plaintiff became physically helpless and later unconscious after drinking the drinks; that Young was present while plaintiff was stripped naked, filmed, carried to a sofa gasping for air, examined by a paramedic, and removed from the house by another defendant; that Young later sought to conceal her involvement in the incident despite knowing that it was the subject of a criminal investigation; and that Young acted upon a common scheme with other defendants to harass and discredit plaintiff, and to destroy evidence and obstruct justice.\nAppeal by plaintiff from order entered 23 March 2000 by Judge Jerry R. Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 18 April 2001.\nMcSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff-appellant.\nWard & Smith, P.A., by V. Stuart Couch and A. Charles Ellis, for defendant-appellee Jeannie Young." }, "file_name": "0104-01", "first_page_order": 132, "last_page_order": 139 }