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App.", "case_ids": [ 8525976 ], "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0531-01" ] }, { "cite": "542 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155847, 1155564, 1155892, 1155639, 1155705 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0352-03", "/nc/351/0352-02", "/nc/351/0352-05", "/nc/351/0352-01", "/nc/351/0352-04" ] }, { "cite": "519 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "546", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239532 ], "year": 1999, "pin_cites": [ { "page": "167", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0159-01" ] }, { "cite": "548 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "542 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439459 ], "year": 2001, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0048-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "251 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "year": 1979, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "603 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "543", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410721 ], "year": 2004, "pin_cites": [ { "page": "53", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0048-01" ] }, { "cite": "560 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "385", "parenthetical": "\"A defense raised by a defendant in answer to a plaintiff's complaint is not a 'claim' for purposes of Rule 54(b).\"" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127038 ], "year": 2002, "pin_cites": [ { "page": "231", "parenthetical": "\"A defense raised by a defendant in answer to a plaintiff's complaint is not a 'claim' for purposes of Rule 54(b).\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0230-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "year": 1983, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0419-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "579", "parenthetical": "second alteration original" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "162", "parenthetical": "second alteration original" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "261" }, { "page": "262" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "164-65" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23", "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-336", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-332.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "pin_cites": [ { "page": "(a)(4)", "parenthetical": "stating that the Act does not apply to \"[a]ny person counseling as a supervised counselor in a supervised professional practice\"" }, { "page": "(a)(4)" }, { "page": "(a)(5)", "parenthetical": "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\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1700, "char_count": 56341, "ocr_confidence": 0.761, "pagerank": { "raw": 2.412960682254436e-07, "percentile": 0.8001364172196912 }, "sha256": "590b08e8142c68674c99915a2161fa36cb1a53007537cadc06be3e64a281c184", "simhash": "1:bb59d67244324673", "word_count": 8846 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEPHENS concur.", "Judge STEPHENS concurred prior to 31 December 2006." ], "parties": [ "FREIDA FOSTER, TAMI BORLAND, and KATHY BOWEN, Plaintiffs v. JASON M. CRANDELL and PSIMED, P.A., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThis 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\u2019 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\u2019s claims; and (2) the entry of summary judgment on plaintiffs\u2019 claims for punitive damages. We dismiss the parties\u2019 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.\n\u2022 With respect to Foster\u2019s 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 (\u201cNIED\u201d) claim against defendant Jason M. Crandell, M.D. The trial court\u2019s entry of summary judgment is, therefore, reversed only as to Foster\u2019s NIED claim against defendant Crandell. We also uphold the trial court\u2019s entry of summary judgment as to plaintiffs\u2019 punitive damages claims based on plaintiffs\u2019 failure to forecast sufficient evidence to meet the standard for punitive damages set forth in N.C. Gen. Stat. \u00a7 1D-I5(a) (2005).\nFacts\nIn the early 1990s, Michael Rivest was the pastor of a small congregation of the Charismatic Episcopal Church and had established Isaiah 61 Ministries, Inc. (\u201cIsaiah 61\u201d), which was providing Christian counseling as the St. Matthew\u2019s Institute for Healing and Growth (\u201cSt. Matthew\u2019s Institute\u201d). In 1994, Crandell agreed to work more closely with Rivest as a referral for any of Rivest\u2019s clients who could potentially benefit from medical management.\nCrandell thereafter became the medical director of Isaiah 61, and a brochure for Isaiah 61 and St. Matthew\u2019s Institute listed him as the organization\u2019s psychiatrist. In that position, Crandell provided general advice on conducting a counseling practice, made periodic review of Rivest\u2019s 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\u2019s personal physician.\nIn June 1995, the North Carolina Board of Licensed Professional Counselors (the \u201cBoard\u201d) sent Rivest a letter directing him to cease and desist from providing counseling services, 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 \u201cdirect supervision\u201d of Crandell. Crandell sent a similar letter to the Board, noting that he was employed by Isaiah 61 \u201cto provide a supervisory relationship\u201d to Rivest and, therefore, that Rivest was exempted from the Act\u2019s licensure requirement under N.C. Gen. Stat. \u00a7 90-332.1(a)(4) (2005) (stating that the Act does not apply to \u201c[a]ny person counseling as a supervised counselor in a supervised professional practice\u201d). The Board agreed to this arrangement and sent Rivest a letter stating that he was exempt from the Act.\nIn September 1996, however, the Board sent Crandell another letter indicating that it had reinterpreted the exemption found in N.C. Gen. Stat. \u00a7 90-332.1(a)(4) for supervised unlicensed counseling. The Board\u2019s new interpretation construed the exemption as apply: ing only to counselors who were under temporary supervision while attempting to meet the licensure requirements of N.C. Gen. Stat. \u00a7 90-336(b)(2) (2005). According to Crandell, he'then terminated his employment with Isaiah 61, but continued to review counseling session reports \u201c[a]s a courtesy\u201d until 1998. Plaintiffs, on the other hand,, contend Crandell\u2019s supervisory relationship extended beyond 1998 for an unspecified period.\nIn December 1998, the Board sent Rivest another cease and desist letter, copied to Crandell, that again noted N.C. Gen. Stat. \u00a7 '90-332.1(a) (4) no longer applied to Rivest\u2019s situation. Rivest\u2019s response, also copied to Crandell, stated that Isaiah 61 and St. Matthew\u2019s Institute were no longer charging fees for counseling services, and, therefore, were now exempt from the Act under N.C. Gen. Stat. \u00a7 90-332.1(a)(5) (stating that the Act does not apply to \u201c[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\u201d). Foster later testified that, in lieu of fees, she and the other plaintiffs were, at that time, expected to make \u201cdonations\u201d to Rivest for his counseling services.\nPlaintiff Tami Borland began Christian counseling at the St. Matthew\u2019s Institute in 1994 in an effort to save her marriage. After first receiving counseling from another counselor, Borland began regular counseling with Rivest\u2019s wife, Kathleen. By 1996, however, Borland had begun counseling exclusively with Rivest and, by 1997, had joined his religious sect, the \u201cCistercian Oblates,\u201d which required that she wear a nun\u2019s habit.\nIn 1998, Rivest informed Borland that he believed she was experiencing \u201cstigmata pain,\u201d which, according to Rivest, was \u201cpain associated with that of Christ when Christ was nailed to the cross.\u201d Rivest told Borland that she needed medication and personally took her to see Crandell. Rivest explained that he \u201chad a business relationship\u201d with Crandell in which Crandell supervised Rivest\u2019s counseling sessions, reviewed his counseling notes and records, served as his advi-sor, and \u201csign[ed] off\u201d on everything Rivest did.\nWhile in Crandell\u2019s office, Rivest explained stigmata pain and provided Crandell \u201cwith literature and written documents that pertained to stigmata so that Dr. Crandell could educate himself. . . .\u201d Crandell explained to Borland that Rivest was \u201cvery qualified\u201d and that \u201che deferred to [Rivest\u2019s] recommendations on a regular basis with regard to diagnoses.\u201d 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 \u201ctalk[] about [the] pain associated with [her] stigmata.\u201d\nIn 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 \u201cseek treatment elsewhere because he did have an ongoing supervisory relationship\u201d with Rivest. Crandell thereafter referred Borland to another mental health facility.\nPlaintiff Kathy Bowen began grief counseling with Rivest in 1997, following the death of her mother. Rivest told Bowen that he and Crandell \u201chad a psychiatric/counseling business\u201d and that Crandell oversaw Rivest\u2019s 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 \u201caware of everything that was going on with [her]\u201d because \u201che shared information with . . . Rivest due to his supervisory relationship over Rivest.\u201d Bowen also joined the Cistercian Oblates and began wearing a nun\u2019s habit.\nIn July 1999, Rivest notified Bowen in writing that he had \u201cconsulted today with both our Medical Director and Clinical Supervisor regarding [her] case,\u201d 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 \u201cneeded [any] medication.\u201d\nIn 1998, following the death of her fianc\u00e9e, plaintiff Frieda Foster began grief counseling with Rivest. Rivest told her that Crandell provided Rivest with \u201coutside supervision\u201d and, according to Rivest, reviewed Rivest\u2019s 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 Crandell.\nFoster continued to seek treatment with Rivest over the following year, visited his church, and soon also wore a nun\u2019s 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.\nFoster ultimately began to doubt the efficacy of Rivest\u2019s 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 Rivest.\nOn 26 October 2001, Borland, Bowen, and Foster filed suit against Isaiah 61 and Rivest, each alleging: (1) Rivest had taken \u201ccertain indecent liberties\u201d with them that \u201cwere intended for the sexual gratification of Rivest\u201d; (2) they had engaged in \u201cintimate acts\u201d with Rivest \u201cinvoluntarily and without consent\u201d; and (3) Rivest had used \u201cmind control techniques, threats and intimidation to illegally obtain money\u201d 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.\nOn 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\u2019s supervisory authority, over Rivest\u2019s practices, claiming they were entitled to recover for the injuries they incurred under Rivest\u2019s counseling from Crandell as a result of his inadequate supervision of Rivest and from PsiMed as a result of its inadequate supervision of Crandell.\nOn 16 June 2003, plaintiffs voluntarily dismissed that action without prejudice pursuant to N.C.R. Civ. P. 41(a)(l)(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\u2019s supervision of Rivest.\nAfter answering plaintiffs\u2019 complaint, defendants moved for judgment on the pleadings, claiming that plaintiffs\u2019 prior settlement with Rivest and Isaiah 61 precluded recovery in this action. Judge A. Moses Massey denied defendants\u2019 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\u2019 recovery, but also seeking judgment on all of plaintiffs\u2019 claims based on the statute of limitations, the statute of repose, and insufficient evidence. In addition, defendants moved to exclude the testimony of plaintiffs\u2019 two expert witnesses: clinical pharmacist Thomas E. Henry, III and psychiatrist Dr. James F. T. Corcoran.\nOn 13 June 2005, Judge Lindsay R. Davis, Jr. entered an order (the \u201cPartial Summary Judgment Order\u201d) and a detailed memorandum of decision. With respect to the effect of the prior settlement, Judge Davis ruled that defendants\u2019 motion for summary judgment presented no new arguments and resolution of the motion in defendants\u2019 favor on that basis would effectively overrule Judge Massey\u2019s order. For that reason, Judge Davis denied defendants\u2019 motion for summary judgment to the extent it relied on the prior settlement.\nAs for Foster\u2019s 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\u2019s and Bowen\u2019s 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-medications. The trial court further granted summary judgment as to plaintiffs\u2019 claims for punitive damages.\nPlaintiffs and defendants have both appealed from the Partial Summary Judgment Order. Additionally, defendants have appealed from Judge Massey\u2019s order denying their motion for judgment on the pleadings.\nInterlocutory Nature of the Appeal\nWe 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 to finally 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\u2019s and Bowen\u2019s claims for intentional and negligent infliction of emotional distress, negligent supervision, and medical malpractice, the parties\u2019 appeal is interlocutory. See Liggett Group Inc. v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (\u201cA 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.\u201d).\nThis 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.\nRule 54(b), in pertinent part, provides:\nWhen 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 reasbn 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 statutes.\nN.C.R. Civ. P. 54(b). \u201cNonetheless, the trial court may not, by [Rule 54(b)] certification, render its decree immediately appealable if \u2018[it] is not a final judgment.\u2019 \u201d 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)).\nSince the Partial Summary Judgment Order entered a final judgment as to all of Foster\u2019s claims, her appeal is properly before this Court pursuant to the trial court\u2019s Rule 54(b) certification. We reach a different conclusion, however, with respect to the remaining parties\u2019 appeals.\nBorland\u2019s and Bowen\u2019s claims premised upon Crandell\u2019s 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\u2019 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\u2019s evidentiary ruling regarding Mr. Henry does not constitute a final judgment as to a claim for relief.\nSimilarly, with respect to both defendants\u2019 cross-appeal from the Partial Summary Judgment Order as well as defendants\u2019 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., 149 N.C. App. 230, 231, 560 S.E.2d 384, 385 (2002) (\u201cA defense raised by a defendant in answer to a plaintiff\u2019s complaint is not a \u2018claim\u2019 for purposes of Rule 54(b).\u201d). Consequently, the trial court\u2019s Rule 54(b) certification is also ineffective to bring defendants\u2019 appeals properly before this Court. See, e.g., Wood v. McDonald\u2019s Corp., 166 N.C. App. 48, 53, 603 S.E.2d 539, 543 (2004) (addressing, under Rule 54(b) certification, the plaintiff\u2019s appeal from an order granting the defendants partial summary judgment, but dismissing the defendants\u2019 cross-appeal as interlocutory).\nWe 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 \u201cclaim for punitive damages determined, if at all, before the same judge and jury which heard the claim for compensatory damages.\u201d 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\u2019s entry of summary judgment on the issue of punitive damages. As for Borland\u2019s and Bowen\u2019s arguments regarding negligence in medicine management and the exclusion of Mr. Henry\u2019s 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, Embler, 143 N.C. App. at 166, 545 S.E.2d at 262, and, as we have previously stressed, \u201c[i]t is not the duty of this Court to construct arguments for or find support for appellant\u2019s right to appeal from an interlocutory order ....\u2019\u2019 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\u2019s and Bowen\u2019s arguments regarding negligent medicine management and the exclusion of Mr. Henry\u2019s testimony. They may assert those arguments on any appeal from the entry of a final judgment.\nDefendants, 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\u2019 claims are barred by res judicata and collateral estoppel as a result of plaintiffs\u2019 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 \u201ccan affect a substantial right and may be immediately appealed.\u201d 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.\nThis 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, e.g., Country Club of Johnston County, Inc. v. U.S. Fid. & Guar. Co., 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 \u201csubstantial right\u201d 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, 542 S.E.2d 207 (2000); Northwestern Fin. Group, Inc. v. County of Gaston, 110 N.C. App. 531, 536, 430 S.E.2d 689, 692 (holding that the defense of res judicata gives rise to a \u201csubstantial right\u201d 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 \u201csubstantial right\u201d 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\u2019t, 165 N.C. App. 587, 589-90, 599 S.E.2d 422, 426 (2004).\nWe need not, however, reconcile Country Club, Northwestern, and Williams in this case, since they all involve a prior determination on the merits by either a jury or a judge \u2014 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\u2019s 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).\nIn Allen, 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\u2019 contention that the trial court\u2019s order denying their motion 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: \u201cThis 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.\u201d Id. Robinson 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 Allen, 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 \u201cno decision by any court or jury that could prove to be inconsistent with a future decision.\u201d Robinson, 167 N.C. App. at 769, 606 S.E.2d at 453.\nLike the defendants in Robinson and Allen, 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 and Allen control and, therefore, we hold that defendants have failed to demonstrate the existence of a substantial right with respect to their appeal.\nDefendants requested at oral argument before this Court that we nevertheless grant certiorari to review their contentions. An application for a writ of certiorari \u201cshall 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 or parts 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.\u201d N.C.R. App. P. 21(c). Defendants\u2019 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 \u201cclearly d[id] not meet the requirements set forth in Rule 21(c)\u201d), appeal dismissed, 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\u2019s discretion to suspend the requirements of Rule 21 under N.C.R. App. P. 2. Defendants\u2019 appeal is, therefore, dismissed.\nSummary Judgment as to Plaintiff Foster\nWe first consider plaintiffs\u2019 argument that the trial court erred by granting defendants summary judgment on all of Foster\u2019s claims. Summary judgment is appropriate if \u201cthe 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.\u201d 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. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). Moreover, \u201c \u2018all inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion.\u2019 \u201d Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 Moore\u2019s Federal Practice \u00a7 56.15[3], 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 (1999).\nA. Statutes of Repose arid Limitations\nThe trial court concluded that Foster\u2019s 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 \u201cin 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. \u00a7 l-15(c) (2005). See also Bowlin v. Duke Univ., 119 N.C. App. 178, 183, 457 S.E.2d 757, 760 (noting that \u201ca 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\u201d and that, in any event, there is \u201ca period of repose of four years\u201d), disc. review denied, 342 N.C. 190, 463 S.E.2d 233 (1995).\nOn appeal, plaintiffs assert that Foster\u2019s 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\u2019s improper conduct. See N.C. Gen. Stat. \u00a7 1-52(16) (2005) (\u201c[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.\u201d). We disagree.\nA medical malpractice action is \u201ca 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.\u201d N.C. Gen. Stat. \u00a7 90-21.11 (2005). Here, Foster has asserted personal injury claims against Crandell that are premised entirely upon Crandell\u2019s negligent or reckless failure, as the supervising clinical psychiatrist, to adequately utilize his specialized knowledge and skill to supervise Rivest\u2019s counseling practices.\nAs these claims all implicate the furnishing of Crandell\u2019s professional services in a supervisory context, they are sufficient to establish that plaintiff Foster\u2019s claims are medical malpractice claims for purposes of the statute of limitations and the statute of repose. Compare Mozingo v. Pitt County Mem\u2019l Hosp., Inc., 101 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. review denied, 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\u2019s failure to adequately supervise plaintiffs elderly mother while smoking cigarettes was not malpractice because such supervision did not require the furnishing of professional services), disc. review denied, 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.\nIt 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 \u2014 a date three years before plaintiffs filed their original complaint on 27 December 2002.\nBorland\u2019s affidavit, submitted in opposition to summary judgment, states that Crandell advised her in February 2000 that she should \u201cseek treatment elsewhere because he did have an on-going supervisory relationship with Michael Rivest.\" (Emphasis 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\u2019s supervisory relationship with Rivest had continued into 2000. As a result, an issue of fact exists as to whether Foster\u2019s claims were filed within the three-year statute of limitations.\nWith respect to the longer four-year statute of repose, Rivest sent Bowen a letter on 13 July 1999 \u2014 copied to Crandell \u2014 stating that Rivest had consulted with \u201cour Medical Director and Clinical Supervisor regarding [her] case\u201d and that Rivest and the Medical Director/Clinical Supervisor believed \u201cthat counseling at St. Matthew\u2019s Institute will not decrease [her] problems at this time.\u201d Crandell does not dispute that he was the Medical Director/Clinical Supervisor, but contends that this letter was merely an outdated \u201cform letter\u201d 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\u2019 contention would require that we construe the evidence in a light favorable to Crandell \u2014 an approach not permissible at the summary judgment stage.\nIn addition, Bowen\u2019s affidavit also provides that on \u201ca number of occasions\u201d after July 1999, Crandell indicated to her that he was familiar with her situation \u201cbecause he shared information with Michael Rivest due to his supervisory relationship over Rivest.\u201d Indeed, Foster\u2019s own affidavit states that in mid-1999, she saw Crandell interact with Rivest at church functions and \u201ccome over for meetings.\u201d 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.\nThus, 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\u2019s award of summary judgment to defendants on Foster\u2019s claims on statutes of limitations or repose grounds was in error.\nB. Alternative Grounds for Upholding the Judgment\nDefendants nevertheless argue that, even if the trial court erred by concluding Foster\u2019s claims were time-barred, defendants were entitled to summary judgment as to Foster\u2019s claims for intentional infliction of emotional distress (\u201cIIED\u201d), NIED, negligent supervision by Crandell, and negligent supervision by PsiMed. If, as here, an appellee is not otherwise entitled to bring an appeal, the \u201cappellee 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.\u201d N.C.R. App. P. 10(d). Defendants have properly cross-assigned error to the Partial Summary Judgment Order\u2019s failure to award them summary judgment on Foster\u2019s 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.\n\u201cThe essential elements of intentional infliction of emotional distress are \u2018(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress[.]\u2019 \u201d 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.\nThe question before us is not whether Rivest\u2019s improper sexual conduct constitutes \u201cextreme and outrageous\u201d behavior, but rather whether evidence of a failure by Crandell to properly supervise Rivest meets that test. \u201c \u2018Conduct 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.\u2019 \u201d Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy, 152 N.C. App. 15, 22, 567 S.E.2d 403, 408-09 (2002)), disc. review denied, 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.\nFoster argues \u201cthat Crandell\u2019s willful failure to disclose critical information from the NC LPC Board constituted extreme and outrageous conduct.\u201d 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\u2019s demand that Rivest cease the practice of counseling. Foster cites no authority \u2014 and we have found none \u2014 supporting her contention that a failure to disclose information under the circumstances of this case \u201cexceeds all bounds of decency tolerated by society . . . .\u201d West v. King\u2019s Dep\u2019t 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\u2019 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\u2019s IIED claim, and this portion of the Partial Summary Judgment Order is affirmed.\nAn 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\u2019s 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, but instead argue only that Foster presented no evidence of foreseeability of severe emotional distress or that Crandell\u2019s conduct in fact caused her severe emotional distress.\nWith respect to the foreseeability element, Foster must have presented evidence indicating that her \u201cemotional distress was a reasonably foreseeable result of [Crandell\u2019s] negligent acts.\u201d 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 \u201cFoster has offered no evidence or explanation as to how defendant Crandell\u2019s alleged negligent supervision caused her serious emotional distress\u201d 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.\nThis 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\u2019s supervisory relationship continued into at least 2000. Further, plaintiffs submitted an affidavit by James F. T. Corcoran, M.D., in which he stated:\nAssuming 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\u2019s counseling records based upon the information Crandell provided to the NCBLPC. If Crandell properly reviewed Rivest\u2019s counseling notes as he was required, he knew or should have known Rivest\u2019s clients, including Freida Foster. Therefore, he had a duty to advise her of Rivest\u2019s standing with the LPC board. If Crandell did not review Rivest\u2019s counseling records as was required by the NCBLPC, he breached the standard of care as it pertains to treatment and supervision.\nCorcoran added: \u201cIt is my further opinion that the plaintiffs\u2019 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.\u201d This testimony explains how Crandell\u2019s conduct caused Foster\u2019s emotional distress and \u2014 together with plaintiffs\u2019 other summary judgment evidence \u2014 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\u2019s clients, including Foster.\nRegarding the third element, our courts have defined \u201csevere emotional distress\u201d to \u201cmean[] 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.\u201d Ruark Obstetrics, 327 N.C. at 304, 395 S.E.2d at 97. Put more succinctly, a plaintiff must \u201cpresent[] evidence ... of diagnosable mental health conditions.\u201d 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 result of Crandell\u2019s 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\u2019s conduct.\nDefendants were not, therefore, entitled to summary judgment with respect to the merits of Foster\u2019s claim for NIED. Accordingly, we reverse the trial court\u2019s grant of partial summary judgment to defendant Crandell on Foster\u2019s NIED claim.\nFinally, 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)):\nNorth Carolina recognizes a claim for negligent employment or retention when the plaintiff proves:\n\u201c(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 incompetency proved.\u201d\nWe cannot see how the Medlin theory of liability \u2014 a basis for imposing liability upon an employer for negligently hiring or retaining an employee \u2014 applies in this case.\nThe 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 (\u201c[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.\u201d), aff\u2019d 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.\nAlthough it might be tempting to analyze Foster\u2019s claims under Mozingo, a case not relied upon by Foster, our Supreme Court has recently reminded this Court that \u201c[i]t is not the role of the appellate courts ... to create an appeal for an appellant\u201d by addressing an issue not raised or argued by the appellant. Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam). To do otherwise would leave an appellee \u201cwithout notice of the basis upon which an appellate court might rule.\u201d 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.\nIn sum, we reverse the trial court\u2019s determination that Foster\u2019s 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\u2019s claim for NIED and, therefore, reverse the entry of summary judgment on that cause of action.\nPunitive Damages\nAll three plaintiffs- argue that the trial court erred when it granted defendants summary judgment as to plaintiffs\u2019 claims for punitive damages. Under\u2019N.C. Gen. Stat. \u00a7 1D-I5(a), punitive damages may be awarded only when a claimant proves that a defendant is liable for compensatory damages and that one of three \u201caggravating factors\u201d\u2014 fraud, malice, or willful or wanton conduct \u2014 was both present and related to the injury for which compensatory damages were awarded. Our General Assembly has defined \u201cmalice\u201d as \u201ca 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.\u201d N.C. Gen. Stat. \u00a7 lD-5(5) (2005). \u201cWillful or wanton conduct,\u201d in turn, \u201cmeans 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.\u201d N.C. Gen. Stat. \u00a7 lD-5(7). More specifically, it \u201cmeans more than gross negligence.\u201d Id. The claimant must prove the existence of the aggravating factor by clear and convincing evidence. N.C. Gen. Stat. \u00a7 1D-I5(b).\nFurther, \u201c[p]unitive damages shall not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another.\u201d N.C. Gen. Stat. \u00a7 1D-I5(c). Instead, \u201c[p]unitive damages may be awarded against a person only if that person participated in the conduct . . . giving rise to the punitive damages . . . .\u201d Id. As a result, Rivest\u2019s behavior \u2014 including any sexual misconduct \u2014 cannot serve as a basis for plaintiffs to obtain punitive damages from Crandell.\nHere, plaintiffs do not contend that either fraud or malice exists, but rather rely upon the \u201cwillful or wanton conduct\u201d aggravating factor. In support of their claim for punitive damages, plaintiffs argue only that (1) \u201csince they alleged a claim of intentional infliction of emotional distress, those allegations are sufficient to support a claim for punitive damages,\u201d and (2) \u201cCrandell\u2019s conduct as it pertained to his reckless supervision of Rivest evidences a disregard and indifference to the rights and safety of others.\u201d\nSince we have held that summary judgment was properly granted as to Foster\u2019s 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\u2019s claim for punitive damages.\nWith respect to Borland\u2019s and Bowen\u2019s IIED claims, we note that plaintiffs rely only upon their \u201callegations\u201d of IIED. In opposing a motion for summary judgment, however, the non-moving party \u201cmay 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.\u201d N.C.R. Civ. P. 56(e). Accordingly, the issue is whether plaintiffs were able to \u201cproduce a forecast of evidence demonstrating that [they] will be able to make out at least a prima facie case at trial.\u201d 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\u2019d, 352 N.C. 343, 532 S.E.2d 175 (2000), plaintiffs\u2019 reliance upon mere allegations regarding their IIED claim rather than on evidence of that claim \u2014 including clear and convincing evidence of willful or wanton conduct \u2014 precludes us from reversing the trial court\u2019s 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 party.\nWith respect to plaintiffs\u2019 \u201creckless supervision\u201d claim, plaintiffs again cite to no particular evidence, but rather assert in conclu-sory fashion that \u201cCrandeH\u2019s conduct as it pertained to his 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.\u201d As this Court has previously held, \u201cthe mere characterization by [plaintiffs] of defendants\u2019 negligence as conscious and reckless [does] not create a genuine issue of material fact.\u201d 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).\nWhile plaintiffs have set out in the statement of facts the evidence that they contend supports their claim for negligent supervision and negligence in Crandell\u2019s professional treatment of Borland and Bowen, plaintiffs have not explained how that evidence rises above negligence \u2014 or even gross negligence \u2014 to reach the level of \u201cconscious and intentional disregard of and indifference to the rights and safety of others.\u201d N.C. Gen. Stat. \u00a7 lD-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 N.C.R. App. 28(b)(6) (\u201cAssignments of error ... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d). We, therefore, cannot conclude that the trial court erred in entering summary judgment for defendants as to plaintiffs\u2019 claim for punitive damages.\nConclusion\nWe dismiss defendants\u2019 appeal and plaintiffs Bowen\u2019s and Borland\u2019s appeal as to the rulings on Mr. Henry\u2019s testimony and their arguments regarding medicine management as interlocutory. We affirm the trial court\u2019s entry of summary judgment as to all of Foster\u2019s claims except for her claim for NIED against defendant Crandell. As to Foster\u2019s NIED claim against defendant Crandell, we reverse. We affirm the entry of summary judgment as to all plaintiffs\u2019 claims for punitive damages.\nAffirmed in part; reversed in part; dismissed in part.\nJudges WYNN and STEPHENS concur.\nJudge STEPHENS concurred prior to 31 December 2006.\n. In connection with the medical management issue, the trial court granted defendants\u2019 motion to exclude the testimony of Thomas Henry, a licensed pharmacist and one of plaintiffs\u2019 expert witnesses. The court, however, denied the motion to exclude the testimony of plaintiffs\u2019 second expert witness, James Corcoran, M.D.\n. We note that although Foster sued both PsiMed and Crandell, Foster makes no argument on appeal as to why summary judgment was improper as to PsiMed. Accordingly, Foster has abandoned her claims against PsiMed.\n. See Mozingo, 331 N.C. at 190-91, 415 S.E.2d at 346 (doctor who assumed responsibility for supervising resident physicians owed duty of reasonable care to patients who were actually cared for by residents).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Gray Newell, LLP, by Angela Newell Gray, for plaintiffs.", "Carruthers & Roth, P.A., by Jack B. Bayliss, Jr. and William J. McMahon, for defendants." ], "corrections": "", "head_matter": "FREIDA FOSTER, TAMI BORLAND, and KATHY BOWEN, Plaintiffs v. JASON M. CRANDELL and PSIMED, P.A., Defendants\nNo. COA05-1140\n(Filed 2 January 2007)\n1. Appeal and Error\u2014 appealability \u2014 partial summary judgment \u2014 Rule 54(b) certification \u2014 substantial right\nAlthough plaintiff Foster\u2019s appeal from the entry of partial summary judgment is properly before the Court of Appeals based on the trial court\u2019s Rule 54(b) certification, and all three plaintiffs\u2019 issues of punitive damages can be reviewed based on a substantial right to have the claim determined by the same judge and jury which heard the claim for compensatory damages, the remaining appeals are from interlocutory orders and are premature because: (1) there is no basis for appeal under Rule 54(b) of the exclusion of the negligent medicine management theory in the absence of a final judgment on the remaining plaintiffs\u2019 medical malpractice claim for relief, and the trial court\u2019s evidentiary ruling regarding plaintiffs\u2019 clinical pharmacist expert witness did not constitute a final judgment as a claim for relief; (2) with respect to both defendants\u2019 cross-appeal from the partial summary judgment order as well as defendants\u2019 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; (3) the remaining plaintiffs made no assertion that rulings regarding negligence in medicine management and the exclusion of an expert witness\u2019s testimony affect a substantial right; (4) defendants rely solely on a settlement agreement with an accompanying dismissal, meaning there was no possibility of a result inconsistent with a prior jury verdict or a prior decision by a judge; (5) defendants failed to demonstrate the existence of a substantial right with respect to their appeal when they 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; and (6) defendants\u2019 request during oral arguments that the Court of Appeals grant certiorari to review their contentions falls short of the requirements of N.C. R. App. R 21, and defendants have pointed to no circumstances that would justify the exercise of the Court of Appeals\u2019 discretion to suspend the requirements of Rule 21 under N.C. R. App. R. 2.\n2. Medical Malpractice\u2014 negligent supervision \u2014 statutes of limitation and repose\nPlaintiff Foster\u2019s claims against defendant medical director of a Christian counseling service for injuries allegedly received during counseling by a pastor constituted medical malpractice claims for purposes of the statutes of limitation and repose where plaintiff asserted personal injury claims against defendant director that are premised entirely upon defendant\u2019s negligent or reckless failure, as the supervising clinical psychiatrist, to adequately utilize his specialized knowledge and skill to supervise the pastor\u2019s counseling practices.\n3. Statutes of Limitation and Repose\u2014 medical malpractice claims \u2014 issue of material fact\nPlaintiff presented sufficient evidence to present genuine issues of material fact as to whether plaintiff\u2019s medical malpractice claims against the medical director of a Christian counseling service were filed within the three-year statute of limitations and the four-year statute of repose. N.C.G.S. \u00a7 l-15(c).\n4. Emotional Distress\u2014 intentional infliction \u2014 improper supervision \u2014 insufficient showing of outrageous conduct\nPlaintiff\u2019s evidence of the failure of defendant medical director of a Christian counseling service to properly supervise the pastor who counseled plaintiff did not constitute extreme and outrageous conduct necessary to establish a claim for intentional infliction of emotional distress where plaintiff did not suggest that defendant failed to disclose information about sexual misconduct by the pastor but contended that defendant failed to disclose that the N.C. Board of Licensed Counselors had demanded that the pastor cease the practice of counseling.\n5. Emotional Distress\u2014 negligent infliction \u2014 failure to supervise counselor\nPlaintiff presented a sufficient forecast of evidence to present a genuine issue of material fact supporting her claim for negligent infliction of emotional distress by defendant medical director of a Christian counseling service based upon his failure to properly supervise the pastor who counseled plaintiff where defendant does not contend that plaintiff failed to present sufficient evidence of negligence; a physician\u2019s affidavit explained how defendant\u2019s negligence caused plaintiff severe emotional distress and, with plaintiff\u2019s other summary judgment evidence, was sufficient to raise a genuine issue of material fact as to whether it was reasonably foreseeable that severe emotional distress could result in the pastor\u2019s clients if defendant negligently failed to supervise him; and plaintiff offered evidence that she suffered diagnosable mental health conditions as a result of defendant\u2019s alleged negligence.\n6. Employer and Employee\u2014 negligent hiring or retention\u2014 insufficient evidence\nDefendant medical director of a Christian counseling service could not be liable for negligent hiring or retention of a pastor who counseled plaintiff where there was no evidence that defendant employed the pastor either as an employee or an independent contractor, and the evidence showed, at most, that defendant and the pastor were at one point co-employees.\n7. Damages and Remedies\u2014 punitive damages \u2014 requirement of participation\nA pastor\u2019s behavior in counseling plaintiffs, including any sexual misconduct, cannot serve as a basis for plaintiffs to obtain punitive damages from the medical director of a Christian counseling service because punitive damages may be awarded against a person only if that person participated in the conduct giving rise to the punitive damages.\n8. Damages and Remedies\u2014 punitive damages \u2014 insufficient evidence showing genuine issue\nPlaintiff Foster did not establish a claim for punitive damages where summary judgment was properly entered for defendant on her claims for intentional infliction of emotional distress and negligent supervision. Furthermore, the other two plaintiffs failed to established claims for punitive damages where they relied only upon their allegations of intentional infliction of emotional distress and \u201creckless supervision\u201d and failed to present clear and convincing evidence of willful or wanton conduct in support of their claims.\nAppeal 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. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 9 May 2006.\nGray Newell, LLP, by Angela Newell Gray, for plaintiffs.\nCarruthers & Roth, P.A., by Jack B. Bayliss, Jr. and William J. McMahon, for defendants." }, "file_name": "0152-01", "first_page_order": 184, "last_page_order": 206 }