Court of Appeals of North Carolina Cases

Moschos v. Moschos

• 2022-12-20

Date Filed2022-12-20

Docket22-455

Cited0 times

StatusPublished

Syllabus

plaintiff abandoned 12(b)(1) argument intentional infliction of emotional distress claim properly dismissed because plaintiff failed to allege that he suffered severe emotional distress

Full Opinion (html_with_citations)

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-843

No. COA22-455

Filed 20 December 2022

Orange County, No. 21 CVS 22

STERGIOS MOSCHOS

SUSAN MOSCHOS

Appeal by Plaintiff from order entered 11 January 2022 by Judge Richard

Allen Baddour, Jr., in Orange County Superior Court. Heard in the Court of Appeals

16 November 2022.

Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for
Plaintiff-Appellant.

Coleman, Gledhill, Hargrave, Merritt, & Rainsford, P.C., by James Rainford,
for Defendant-Appellee.

COLLINS, Judge.

¶1 Plaintiff Stergios Moschos appeals from the trial court’s order dismissing his

claims against Defendant Susan Moschos for breach of fiduciary duty, fraud, and

misappropriation of marital assets under Rules of Civil Procedure 12(b)(1) and

12(b)(6), and his claim for intentional infliction of emotional distress under Rule

12(b)(6). Plaintiff has abandoned his argument that the trial court erred by

dismissing his claims under Rule 12(b)(1), and the trial court did not err by granting
MOSCHOS V. MOSCHOS

2022-NCCOA-843

Opinion of the Court

Defendant’s motion to dismiss Plaintiff’s intentional infliction of emotion distress

claim under Rule 12(b)(6). Accordingly, we affirm the trial court’s order.

I. Procedural History and Factual Background

¶2 Soon after Plaintiff and Defendant were married in 2006, they opened a joint

bank account and agreed that Defendant would pay the parties’ expenses from the

joint account. The parties began depositing their employment income into the joint

account, and Defendant paid the couple’s expenses from the account. In May 2016,

after accepting a new job, Defendant opened and began depositing her paychecks into

a separate bank account. At the time of separation, the bank account had a balance

of $60,262.

¶3 In the fall of 2018, after Defendant continuously expressed dissatisfaction in

their marriage, Plaintiff proposed they rehabilitate their marriage by starting new

careers in a warmer location. In early 2019, Plaintiff accepted a job interview in

Tampa, Florida, and he was invited for a second round of interviews scheduled for 30

April 2019.

¶4 On 22 April 2019, Defendant texted Plaintiff, “I am very sorry but our marriage

is not working for me any longer. I am moving out. I left you a letter. . . .” Defendant

left a one-page typed letter, which stated in part:

I do NOT want to fight with you. We can smoothly separate
if we are both reasonable. I would be fine with splitting
our savings and if you are respectful toward me (e.g. not
MOSCHOS V. MOSCHOS

2022-NCCOA-843

Opinion of the Court

screaming, swearing, name calling), I will not ask for
alimony or half your retirement. Condo in Boston is totally
yours. I see no need to get attorneys – we can both be
respectful and peaceful, even if we are both hurting.
. . . I will file separation paperwork, and, in a year, we can
divorce. North Carolina is a no-fault state, so we really
don’t need to go to court (it would only end in my benefit).
I will get the accounts changed so I won’t have access to
your paycheck. I will continue to get mail but leave yours
in the box until my address is changed.
....
I have considered this at length, for a long time and
honestly don’t believe we can be a loving couple again. I
thank you for the many good years we had together. . . .

¶5 The parties agreed that Defendant would relinquish control of their joint

account into which Plaintiff had deposited his income during their 13 years of

marriage. Before relinquishing control of the account, Defendant withdrew $55,000

one month prior to their separation; paid a deposit for a new apartment the day after

she left him; and withdrew approximately $6,690 to lower the balance remaining on

her student loan. When Plaintiff discovered that Defendant had withdrawn $55,000

from their joint account,

he texted to her his frustration and remorse that he had
trusted her with managing the financial accounts. She
texted him back: “Do you know how lucky you are in [my]
not getting alimony and half you(sic) retirement. No more
comments about finances.” When he texted her, “Yes, I am
lucky that you are reasonable,” she responded, “All good.”

On 27 April 2019, Defendant texted Plaintiff that she would complete the separation
MOSCHOS V. MOSCHOS

2022-NCCOA-843

Opinion of the Court

agreement which would memorialize her promise not to pursue him for alimony and

half his retirement. Several days later, Defendant texted Plaintiff and said,

So, bad news. My attorney said I’m stupid not to take a
settlement, especially since I followed your career. I’m
willing to be fair and still don’t want alimony. Do you want
me to draw up a proposal or would you like to have your
attorney do so?

When Plaintiff responded that he would like to draw up a proposal consistent with

her previous promise not to pursue him for alimony and half his retirement, she

responded:

F**k off, dude. You’re getting off easy and you have plenty
of earning potential. This can be cheap and easy or long
and expensive. I didn’t realize how foolish I was being until
everybody told me so I have absolutely every right to
alimony as well so you’re better off just to suck it up and
move on. You have 500k in retirement. I’ll take 300k if we
go to a mediator, write it up, and settle fast.

Defendant filed an action for absolute divorce a year after their separation, which

was granted. Defendant also filed an action for equitable distribution, seeking over

half of Plaintiff’s retirement assets.

¶6 On 8 January 2021, Plaintiff sued for breach of fiduciary duty, fraud,

defamation, intentional infliction of emotional distress, and misappropriation of

marital funds. Defendant moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6)

of the Rules of Civil Procedure. Plaintiff later voluntarily dismissed his defamation

claim. After a hearing, the trial court granted Defendant’s motions to dismiss the
MOSCHOS V. MOSCHOS

2022-NCCOA-843

Opinion of the Court

remaining claims.

II. Discussion

¶7 Plaintiff asserts that “[t]he trial court erred in granting Defendant’s motions

to dismiss the complaint” and recites the applicable standard of review of an order

granting a motion to dismiss under Rules 12(b)(1) and 12(b)(6). However, Plaintiff

states no reason or argument, and cites no legal authority, in support of his assertion

that the trial court erred by dismissing the breach of fiduciary duty, fraud, and

misappropriation of marital funds claims under Rule 12(b)(1). Accordingly, any

challenge to the trial court’s dismissal of those claims under Rule 12(b)(1) is deemed

abandoned. See N.C. R. App. P. 28(a) (2022); N.C. R. App. P. 28(b)(6) (2022). The

trial court’s order dismissing the breach of fiduciary duty, fraud, and

misappropriation of marital funds claims under Rule 12(b)(1) is thus affirmed, and

we need not address Plaintiff’s argument that the trial court erred by dismissing

those claims under Rule 12(b)(6).

¶8 As the trial court did not dismiss the intentional infliction of emotional distress

claim under Rule 12(b)(1), we address Plaintiff’s argument that the trial court erred

by dismissing that claim under Rule 12(b)(6).

¶9 In ruling on a motion to dismiss for failure to state a claim, the allegations of

fact are taken as true. Amos v. Oakdale Knitting Co.,

331 N.C. 348, 351

416 S.E.2d 166, 168

 (1992). Dismissal is proper when (1) the complaint on its face reveals that
                                       MOSCHOS V. MOSCHOS

                                           2022-NCCOA-843

                                          Opinion of the Court



       no law supports plaintiff’s claim, (2) the complaint reveals on its face that some fact

       essential to plaintiff’s claim is missing, and (3) when some fact disclosed in the

       complaint defeats the plaintiff’s claim.      Schloss Outdoor Advert. Co. v. City of

       Charlotte,

50 N.C. App. 150, 152

272 S.E.2d 920, 922

 (1980). We review an order

       allowing a motion to dismiss for failure to state a claim upon which relief can be

       granted de novo. Halterman v. Halterman,

276 N.C. App. 66

, 2021-NCCOA-38, ¶ 10.

¶ 10         “To state a claim for intentional infliction of emotional distress, a plaintiff must

       allege: (1) extreme and outrageous conduct (2) which is intended to cause and does

       cause (3) severe emotional distress to another.” Clark v. Clark,

280 N.C. App. 403

,

       2021-NCCOA-653, ¶ 37 (internal quotation marks and citation omitted). “Extreme

       and outrageous conduct is defined as conduct that 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.” Norton v.

       Scotland Mem’l Hosp., Inc.,

250 N.C. App. 392, 397

793 S.E.2d 703, 708

 (2016)

       (internal quotation marks and citation omitted).

¶ 11         Severe emotional distress has been defined as “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.” Johnson v.

       Ruark Obstetrics,

327 N.C. 283, 304

395 S.E.2d 85, 97

 (1990). Allegations that fail
                                         MOSCHOS V. MOSCHOS

                                            2022-NCCOA-843

                                           Opinion of the Court



       to identify a severe and disabling emotional or mental condition which may be

       generally recognized and diagnosed by professionals trained to do so are not

       sufficient. See Pierce v. Atl. Grp., Inc.,

219 N.C. App. 19, 32

724 S.E.2d 568, 577


       (2012) (concluding plaintiff’s allegation of “serious on and off the job stress, severely

       affecting his relationship with his wife and family members” was insufficient to allege

       severe emotional distress in the context of a claim for negligent or intentional

       infliction of emotional distress); cf. Zenobile v. McKecuen,

144 N.C. App. 104, 111

548 S.E.2d 756, 760

 (2001) (reversing dismissal of plaintiff’s claim for negligent and

       intentional infliction of emotional distress where she alleged extreme emotional

       distress consisting of “anxiety disorder, depression, and post-traumatic stress

       disorder”). Moreover, without factual allegations regarding the type, manner, or

       degree of severe emotional distress a plaintiff claims to have experienced, a plaintiff’s

       complaint fails to sufficiently allege severe emotional distress. Cauley v. Bean,

282 N.C. App. 443

, 2022-NCCOA-202, ¶¶ 21-22, disc. review denied,

871 S.E.2d 281

(2022)

(affirming dismissal of negligent infliction of emotional distress claim where “[t]he

only allegations in Plaintiff’s complaint regarding her emotional distress are that

Defendant’s actions ‘proximately caused the negligent infliction of emotional distress

of [P]laintiff’ and that ‘[P]laintiff suffered severe emotional distress’”).

¶ 12 Here, Plaintiff alleges that he suffered severe emotional distress from

Defendant’s “sudden abandonment” of him. In support of this contention, Plaintiff
MOSCHOS V. MOSCHOS

2022-NCCOA-843

Opinion of the Court

alleges that he was “stunned[,] . . . utterly distraught[,] . . . and had to undertake

psychological treatment as a result of [Defendant]’s conduct.” These allegations fail

to identify a severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by professionals trained to do so, and fail to allege

sufficient facts concerning the type, manner, or degree of severe emotional distress

Plaintiff claims to have experienced. Accordingly, Plaintiff failed to allege that he

suffered severe emotional distress due to Defendant’s conduct. As Plaintiff fails to

allege a necessary element of intentional infliction of emotional distress, this claim

was properly dismissed under Rule 12(b)(6).

III. Conclusion

¶ 13 Plaintiff abandoned any argument that the trial court erred by dismissing the

breach of fiduciary duty, fraud, and misappropriation of marital assets claims under

Rule 12(b)(1). Plaintiff failed to state a claim for intentional infliction of emotional

distress, and the trial court did not err by dismissing that claim under Rule 12(b)(6).

Accordingly, the trial court’s order is affirmed.

AFFIRMED.

Judges DIETZ and MURPHY concur.