{ "id": 8527922, "name": "JOHN EDWARDS v. ADVO SYSTEMS, INC., and TIM SCHEVERS", "name_abbreviation": "Edwards v. Advo Systems, Inc.", "decision_date": "1989-03-07", "docket_number": "No. 8826SC487", "first_page": "154", "last_page": "158", "citations": [ { "type": "official", "cite": "93 N.C. App. 154" } ], "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": "112 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "251 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626336 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/251/0498-01" ] }, { "cite": "332 S.E. 2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690404, 4686826, 4689527, 4687736, 4688381 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0114-05", "/nc/314/0114-02", "/nc/314/0114-04", "/nc/314/0114-03", "/nc/314/0114-01" ] }, { "cite": "327 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525414 ], "year": 1985, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0672-01" ] }, { "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": "29 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "885" } ], "opinion_index": 0 }, { "cite": "224 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599907 ], "year": 1944, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0269-01" ] }, { "cite": "265 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574949, 8574919, 8574897, 8574934, 8574908 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0332-05", "/nc/299/0332-03", "/nc/299/0332-01", "/nc/299/0332-04", "/nc/299/0332-02" ] }, { "cite": "260 S.E. 2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "133" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554035 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "658" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0655-01" ] }, { "cite": "313 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526680 ], "year": 1984, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0067-01" ] }, { "cite": "254 S.E. 2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "625" }, { "page": "626" }, { "page": "622" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "271 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521088 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0311-01" ] } ], "analysis": { "cardinality": 524, "char_count": 11249, "ocr_confidence": 0.764, "pagerank": { "raw": 7.58054072700893e-08, "percentile": 0.4493827632421813 }, "sha256": "be273e558d41852f3de1793f94a989ed243b40887e979c95f5f120c05d679307", "simhash": "1:1817fd08cccf4575", "word_count": 1771 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and GREENE concur." ], "parties": [ "JOHN EDWARDS v. ADVO SYSTEMS, INC., and TIM SCHEVERS" ], "opinions": [ { "text": "EAGLES, Judge.\nWhere a motion for summary judgment is granted the question on appeal is whether, on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law. Oliver v. Roberts, 49 N.C. App. 311, 271 S.E. 2d 399 (1980). After careful review of the record on appeal, we find there is no genuine issue of material fact as to any of plaintiff\u2019s claims and that the defendants are entitled to judgment as a matter of law. Therefore, we affirm.\nI. Malicious Prosecution\nIn an action for malicious prosecution the plaintiff must show that the defendant had initiated an earlier proceeding, maliciously and without probable cause, and that the earlier proceeding terminated in plaintiff\u2019s favor. Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979). When plaintiff\u2019s claim for malicious prosecution is based on a prior civil proceeding against him, plaintiff must also show \u201cthat there was some arrest of his person, seizure of his property, or some other element of special damage resulting from the action such as would not necessarily result in all similar cases.\u201d Id. at 203, 254 S.E. 2d at 625. As our Supreme Court has stated\n[t]he gist of such special damage is a substantial interference either with the plaintiff\u2019s person or his property such as causing execution to be issued against the plaintiff\u2019s person, causing an injunction to issue prohibiting plaintiff\u2019s use of his property in a certain way, causing a receiver to be appointed to take control of plaintiff\u2019s assets, causing plaintiff\u2019s property to be attached, or causing plaintiff to be wrongfully committed to a mental institution. [Citations omitted.]\nId.\nPlaintiff has failed to assert any basis on which special damages could possibly be found. Plaintiff\u2019s evidence relates that defendants\u2019 actions have caused \u201cmental anguish, loss of income, injury to reputation, and legal expenses.\u201d These types of injury do not constitute a substantial interference with either the plaintiff\u2019s property or person as contemplated by the special damage requirement. See Id. at 204, 254 S.E. 2d at 626. \u201cEmbarrassment, expense, inconvenience, lost time from work or pleasure, stress, strain and worry are experienced by all litigants, to one degree or another, and by themselves do not justify additional litigation\u201d in the form of a malicious prosecution claim. Brown v. Averette, 68 N.C. App. 67, 70, 313 S.E. 2d 865, 867 (1984). Furthermore, \u201c[t]he mere termination of a lawsuit in favor of an adverse party does not mean that there was a want of probable cause to believe on a set of stated facts that a cause of action did exist.\u201d Petrou v. Hale, 43 N.C. App. 655, 658, 260 S.E. 2d 130, 133 (1979), cert. denied, 299 N.C. 332, 265 S.E. 2d 397 (1980). Because plaintiff has failed to raise a genuine issue of fact concerning special damages or absence of probable cause, defendant is entitled to judgment on the malicious prosecution claim as a matter of law.\nII. Abuse of Process\n\u201cThere are two essential elements for an action for abuse of process, (1) the existence of an ulterior motive, and (2) an act in the use of the process not proper in the regular prosecution of the proceeding.\u201d Ellis v. Wellons, 224 N.C. 269, 271, 29 S.E. 2d 884, 885 (1944). \u201c[T]he gravamen of a cause of action for abuse of process is the improper use of the process after it has been issued.\u201d Petrou v. Hale, 43 N.C. App. at 659, 260 S.E. 2d at 133. Plaintiff has raised no issue of fact concerning an abuse of the judicial system after the institution of the prior counterclaims. All of plaintiff\u2019s evidence concerns the alleged motives of the defendants in filing the counterclaims. As we have stated before, \u201c[a]n ulterior motive alone is not sufficient\u201d to sustain an abuse of process claim. Id. Therefore, plaintiff has raised no genuine issue of material fact and summary judgment was proper on the abuse of process claim.\nIII. Intentional Infliction of Emotional Distress\nIntentional infliction of emotional distress consists of: \u201c(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another. The tort may also exist where defendant\u2019s actions indicate; a reckless indifference to the likelihood that they will cause' severe emotional distress.\" Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E. 2d 325, 335 (1981). The \u201cextrem\u00e9 and outrageous cond\u00fact\u201d necessary for recovery has been characterized as conduct which \u201c\u00e9xceeds all bounds usually tolerated by decent society.\u201d Stanback v. Stanback, 297 N.C. at 196, 254 S.E. 2d at 622. Whether or not the conduct complained of may reasonably be regarded as \u201cextreme and outrageous\u201d is initially a question of law for the court. Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E. 2d 308, cert. denied, 314 N.C. 114, 332 S.E. 2d 479 (1985). We conclude that the defendants\u2019 act of filing counterclaims against plaintiff may not be reasonably regarded as extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress. Summary judgment for defendant was proper on this claim.\nIV. Negligent Infliction of Mental Distress\nFor a plaintiff to recover for emotional or mental distress in an ordinary negligence case, he must prove that the mental distress was the proximate result of some physical impact or physical injury to himself which also resulted from the defendants\u2019 negligence. Williamson v. Bennett, 251 N.C. 498, 112 S.E. 2d 48 (1960). Plaintiff has failed to raise any genuine issue as to a physical impact or physical injury resulting from defendants\u2019 actions. His deposition testimony included in the record relates only vague statements about loss of sleep, worry and some uncertain amount of weight loss that may have occurred during the previous litigation. Plaintiff himself characterized his emotional distress in general terms, not requiring medical care and no more severe than that endured by litigants generally. These vague statements do not evince the type of emotional distress on which claims for negligent infliction of emotional distress have been successful in the past. On these facts, we decline to expand the tort to include this type of general distress. Therefore, summary judgment on plaintiff\u2019s negligent infliction of mental distress claim was proper.\nPlaintiff has failed to argue in his brief the trial court\u2019s summary judgment in favor of defendants on the punitive damages claim. That assignment of error is therefore deemed abandoned. Rule 28(b), Rules of App. Proc.\nFor the reasons stated the order of the trial court is affirmed.\nAffirmed.\nJudges BECTON and GREENE concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "W. James Chandler and Brian deBrun for plaintiff-appellant.", "Horack, Talley, Pharr and Lowndes, by Neil C. Williams and Christopher J. Culp, for defendant-appellees." ], "corrections": "", "head_matter": "JOHN EDWARDS v. ADVO SYSTEMS, INC., and TIM SCHEVERS\nNo. 8826SC487\n(Filed 7 March 1989)\n1. Malicious Prosecution \u00a7\u00a7 12,13.2\u2014 insufficient showing of special damages and probable cause\nDefendants were entitled to summary judgment on plaintiff\u2019s claim for malicious prosecution based on counterclaims against him in a prior civil action because plaintiff failed to raise a genuine issue of fact concerning special damages or absence of probable cause. Plaintiffs evidence relating to mental anguish, loss of income, injury to reputation and legal expenses did not show a substantial interference with either plaintiffs property or person as contemplated by the special damage requirement, and termination of the counterclaims in plaintiffs favor did not show an absence of probable cause.\n2. Process \u00a7 19\u2014 abuse of process \u2014 insufficient evidence\nSummary judgment was properly entered for defendants in an action for abuse of process based on counterclaims in a civil action where all of plaintiffs evidence concerned the alleged motives of defendants in filing the counterclaims but plaintiff raised no issue of fact concerning an abuse of the judicial system after the counterclaims were filed.\n3. Trespass \u00a7 2\u2014 filing of counterclaims \u2014no intentional infliction of emotional distress\nDefendants\u2019 filing of counterclaims against plaintiff in a civil action did not constitute extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress.\n4. Damages \u00a7 3.4\u2014 negligent infliction of mental distress \u2014insufficient showing of physical impact or physical injury\nPlaintiff failed to raise a genuine issue of material fact as to physical impact or physical injury sufficient to support a claim for the negligent infliction of mental distress based on counterclaims filed against plaintiff in a prior civil action where plaintiff\u2019s deposition testimony related only vague statements about loss of sleep, worry and some uncertain amount of weight loss that may have occurred during the previous litigation.\nAPPEAL by plaintiff from Snepp, Judge. Order entered 18 December 1987 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 30 November 1988.\nPlaintiff sued defendants for malicious prosecution, abuse of process, intentional infliction of emotional distress, negligent infliction of mental distress and punitive damages. Plaintiff\u2019s suit here is based on the filing of counterclaims by defendants against plaintiff in prior litigation. Plaintiff had sued defendant Advo Systems, Inc. to recover sales commissions. Advo counterclaimed for damages that the company allegedly incurred because of plaintiff\u2019s negligence in handling his advertising accounts. Two of the counterclaims were disposed of by summary judgment and the remaining two were dismissed at the close of defendant\u2019s evidence.\nPlaintiff alleged that the counterclaims were brought with no foundation in law or fact, exclusively for the purpose of intimidating plaintiff and other salespeople who may have been owed sales commissions by Advo. Plaintiff alleged that these actions by the corporate defendant were at the direction of the individual defendant, Tim Schevers. Plaintiff also alleged that defendants\u2019 action caused mental anguish, loss of income, injury to his reputation and legal expenses. Plaintiff claims that the actions by defendants constitute malicious prosecution and abuse of process. On his emotional distress claims plaintiff alleged that defendants knew or should have known that institution of the counterclaims would inflict upon the plaintiff severe emotional and mental distress. In addition, plaintiff alleged that defendants\u2019 actions were willful and intentional and were designed to intimidate and discourage plaintiff from pursuing his claim for sales commissions due. Plaintiff further alleged that filing the counterclaims caused emotional distress which produced physical injury, loss of income, and \u201cresulting damages.\u201d Plaintiff also asked for punitive damages based on defendants\u2019 malicious actions which plaintiff alleged were prosecuted \u201cunder circumstances of insult, rudeness or oppression, and in a manner which showed a reckless and wanton disregard of the rights of the plaintiff.\u201d After discovery, the trial court granted defendants\u2019 motion for summary judgment. Plaintiff appeals.\nW. James Chandler and Brian deBrun for plaintiff-appellant.\nHorack, Talley, Pharr and Lowndes, by Neil C. Williams and Christopher J. Culp, for defendant-appellees." }, "file_name": "0154-01", "first_page_order": 184, "last_page_order": 188 }