IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-652
No. COA20-447
Filed 7 December 2021
Cumberland County, No. 18 CVS 5727
ELIZABETH ANN CLARK, Plaintiff,
v.
ADAM MATTHEW CLARK and KIMBERLY RAE BARRETT, Defendants.
Appeal by Defendant from judgment entered 17 September 2019 and order
entered 30 October 2019 by Judge Mary Ann Tally in Cumberland County Superior
Court. Heard in the Court of Appeals 12 May 2021.
The Michael Porter Law Firm, by Michael R. Porter; and The Charleston Law Group, by Jose A. Coker and R. Jonathan Charleston, for Plaintiff-Appellee.
Tharrington Smith, LLP, by Jeffrey R. Russell and Evan B. Horwitz, for Defendant-Appellant.
WOOD, Judge.
¶1 On September 17, 2019, a jury found Defendant, Adam Clark, (“Defendant
Clark”) liable for unlawful disclosure of private images, intentional infliction of
emotional distress (“IIED”), and libel. Post-trial, Defendant Clark filed a motion for
judgment notwithstanding the verdict (“JNOV”), and in the alternative, motion for
new trial, which was denied. On appeal, Defendant Clark contends the trial court
erred in admitting expert witness testimony; allowing Plaintiff, Elizabeth Clark, CLARK V. CLARK
Opinion of the Court
(“Plaintiff”) to proceed with an IIED claim; and denying his post-trial motion. After
careful review of the record and applicable law, we disagree.
I. Factual and Procedural Background
¶2 On April 3, 2010, Plaintiff and Defendant Clark were married. At the time of
their marriage, Defendant Clark held the rank of Captain in the United States Army.
In or around May 2010, Plaintiff placed a personal advertisement on the website
Craigslist. Through this advertisement, Plaintiff met a man with whom she had a
sexual affair. According to Plaintiff, her extramarital affair lasted approximately ten
months.
¶3 The couple remained together and attended several “marriage retreats,”
through the U.S. Army. During their marriage retreats, Plaintiff and Defendant
Clark completed “exercises of trying to open up to your spouse, reconnect[ing] . . . .
[T]hey go into forgiveness of things.” Thereafter, the couple procreated two children
in 2014 and 2015, respectively. In October 2015, Defendant Clark was promoted to
Major.
¶4 In the spring of 2016, Defendant Clark attended Army training at Fort Belvoir,
Virginia. While staying at Fort Belvoir, Defendant Clark met Defendant, Kimberly
Barrett, MD (“Defendant Barrett”). Defendant Barrett held the rank of Lieutenant
Colonel in the Army and knew Defendant Clark was married at the time. While at
Fort Belvoir, Defendants Clark and Barrett stayed in barracks. The barracks were CLARK V. CLARK
“like a U shape and it was two floors and [Defendants Clark and Barrett] were [in]
the same long building, but [Defendant Barrett] was down on the other end.” While
attending their training, Defendants Clark and Barrett “had been all alone in each
other’s rooms.”
¶5 Defendant Barrett testified that her relationship with Defendant Clark started
by Defendant Clark “helping [her] with homework or papers. Sometimes [she] had
questions. There is a lot of acronyms in the -- field, but in the military, there are a lot
of acronyms that [she] wasn’t familiar with.” While at Fort Belvoir, Defendant Clark
told Defendant Barrett “he did not have a good relationship” with his wife.
¶6 While Defendant Clark completed his educational program at Fort Belvoir,
Plaintiff “notice[d] a little bit of change” in her husband. Defendant Clark did not
travel home to North Carolina to visit and “wasn’t texting [Plaintiff] as often. One
time [Plaintiff] couldn’t get ahold of him and [she] tried calling his hotel room, [but
he] wouldn’t pick up when he was supposed to be in there . . . . He was short with
[her] on the telephone.”
¶7 Plaintiff used her cellphone to “trace or track” Defendant Clark’s cellphone,
during which time Defendant Clark’s phone was “showing a different location from
where his room was at.” Defendant Clark’s phone was “pinging . . . from the other
end of the hall,” from where Defendant Barrett was staying.
¶8 When Defendant Clark came home from Fort Belvoir for Independence Day, CLARK V. CLARK
Plaintiff discovered he “was texting a female. [She] found a number in his phone.”
When Plaintiff asked Defendant Clark who the female was, he replied, “I don’t know
what you’re talking about.” Finding the phone number caused Plaintiff “a lot of
emotional distress.” The couple argued about it, and Plaintiff experienced “stroke-
like symptoms.” Plaintiff was ultimately diagnosed with “[m]igraines and stress.”
Defendant Clark returned to Fort Belvoir shortly thereafter.
¶9 In September 2016, Plaintiff discovered text messages between Defendants
Clark and Barrett, in which Defendant Clark sent Defendant Barrett a picture of his
penis taken in Plaintiff and Defendant Clark’s home. At the time she discovered the
sexually explicit photograph, Defendant Clark had changed Defendant Barrett’s
name in his cellphone’s contact information to “Jane S.” Plaintiff knew “Jane S.” was
Defendant Barrett because she had matched the cellphone number of “Jane S.” with
that of Defendant Barrett.
¶ 10 On September 11, 2016, Plaintiff asked Defendant Clark if he “still had
[Defendant Barrett’s] number.” Plaintiff threatened to call Defendant Barrett, and
Defendant Clark “jumped up really fast and chased after [Plaintiff] as [Plaintiff] was
dialing [Defendant Barrett’s] number.” Plaintiff threatened to ask Defendant Barrett
if she and Defendant Clark were having an extramarital affair. Because of this
interaction, the couple fought, and Defendant Clark left their marital home.
¶ 11 Although Plaintiff and Defendant Clark separated on September 11, 2016, the CLARK V. CLARK
couple attempted reconciliation by maintaining an emotionally and sexually intimate
relationship. On March 17, 2017, Plaintiff and Defendant Clark executed a
separation agreement, in which Defendant Clark agreed to pay $1,850 in monthly
child support to Plaintiff. The separation agreement was drafted by Defendant
Clark’s attorney, and Plaintiff was not represented by independent counsel at the
time.
¶ 12 Throughout June and July 2017, Plaintiff and Defendant Clark engaged in
sexual intercourse and recorded themselves doing so. Also in July 2017, Defendant
Clark and Defendant Barrett conceived a child together through in vitro fertilization.
Defendant Clark continued to maintain an intimate and sexual relationship with
both his wife and with his paramour during this time. In August 2017, Defendant
Clark was located in Boston, Massachusetts for additional training. Plaintiff
attempted to videocall Defendant Clark through Facetime, but Defendant Clark did
not answer. When Defendant Clark did not answer, Plaintiff “sent him a topless
photo.” Plaintiff did not send the topless photograph to anyone else.
¶ 13 In September 2017, Plaintiff and Defendant Clark stopped having sexual
intercourse. Around this time, Defendant Clark began complaining about the amount
he paid to Plaintiff in child support. In October 2017, Plaintiff and Defendant Clark
exchanged text messages, in which Plaintiff sent Defendant Clark “a picture of female
genitalia.” Around that same time, Plaintiff discovered Defendant Barrett was CLARK V. CLARK
pregnant with Defendant Clark’s child.1
¶ 14 In January 2018, Plaintiff discovered a Craigslist advertisement and believed
it to be about herself. The advertisement stated,
Liz is super hot! Shows you what plastic surgeons and eating disorders can do for you in 2018. There’s a reason she’s been divorced twice and can’t take care of her kids. She’s a plaything, nothing more. Hope you fellas are wearing condoms, she’s got herpes.
Plaintiff believed Defendant Clark posted the advertisement, because he “always said
[she] had an eating disorder and when [they] started not getting along, he said that
[she] didn’t take care of [her] children and [she] was a bad mother.” Plaintiff
responded to the advertisement, stating that she knew Defendant Clark posted it.
Whomever posted the advertisement denied being Defendant Clark. However, when
Plaintiff sent insulting language to the poster of the advertisement, Defendant Clark
sent Plaintiff a text message inquiring as to why he received such language.
¶ 15 In the text message, Defendant Clark included a “screenshot” of the message
he received. Plaintiff observed that the message was sent to an email address with
the username “elizabethclark0403.” Plaintiff did not use an email address with that
username but attempted to log into the email account. When Plaintiff attempted to
do so, the “recovery email” matched that of Defendant Clark’s personal email address.
1 Defendants Clark and Barrett had a child together on March 7, 2018. CLARK V. CLARK
¶ 16 In March 2018, Plaintiff began interacting with Defendant Clark, who was
using the alias “Brian Bragg” on the social networking platform, Kik.2 The Brian
Bragg3 account sent Plaintiff the photograph of her nude breasts, saying, “Saw this
floating around the internet in the Fayetteville chat rooms just letting you know.”
“Brian Bragg” also stated the image was “all over the place,” and that he hoped
Plaintiff “[slept] well knowing [her] fun bags [were] hanging out there for the world
to see.”
¶ 17 In May 2018, Plaintiff discovered a Facebook “weight loss” advertisement
depicting Plaintiff. The advertisement was composed of a post-pregnancy photograph
of Plaintiff next to the photograph of Plaintiff’s nude breasts. Prior to Plaintiff finding
the advertisement, “Brian Bragg” had threatened to find and post Plaintiff’s post-
pregnancy photographs on Kik.
¶ 18 Throughout 2018, Plaintiff’s friends and co-workers contacted her when they
saw “Liz Clark” profiles, using a photograph of Plaintiff as a profile picture, in Kik
chatrooms soliciting “no strings attached sex.” Kik business records revealed that
the “Liz Clark” Kik profiles could be traced to an IP address that matched the IP
address of Defendants Clark and Barrett’s residence.
2 When asked if Defendant Clark used the alias “Brian Bragg,” Defendant Clark pled
the Fifth Amendment. 3 Plaintiff believed “Brian Bragg” was Defendant Clark, as the “Brian Bragg” account
used a photograph that Plaintiff took of Defendant Clark as a profile picture. CLARK V. CLARK
¶ 19 When Plaintiff’s friends and co-workers notified her that they saw the saw “Liz
Clark” Kik profiles, she “was extremely embarrassed” and her “heart started racing.”
Plaintiff also received photographs from “Brian Bragg” depicting herself and her
vehicle. Attached to these photographs were messages discussing how people were
following Plaintiff. One message from “Brian Bragg” stated, “We are going to
continue doing everything in our power to make your life miserable.”
¶ 20 In August 2018, Plaintiff brought the instant action, asserting claims against
both Defendants Clark and Barrett for libel per se; intentional and negligent infliction
of emotional distress; and a violation of N.C. Gen. Stat. § 14-190.5A, a statute
providing criminal sanctions for what is commonly known as “revenge porn.” Plaintiff
asserted additional causes of action against Defendant Barrett for alienation of
affection and criminal conversation. In April 2019, Defendant Clark was arrested for
stalking and cyberstalking Plaintiff in violation of N.C. Gen. Stat. §§ 14-277.3(A)(c)
and 14-196.3.
¶ 21 In July 2019, the Cumberland County Superior Court barred the use of expert
witness testimony in the civil actions filed by Plaintiff based upon a motion filed by
Defendants Clark and Barrett to strike Plaintiff’s tardy designation of an expert
witness.
¶ 22 The case proceeded to trial in August 2019. During trial, Derek Ellington
(“Ellington”) was permitted to testify. Ellington is a digital forensics examiner in CLARK V. CLARK
Cumberland County. During Ellington’s testimony, he laid the foundation for the
entry of a flash drive containing nearly 32,000 files. Ellington preserved the files from
Plaintiff’s electronic devices, and social media and email accounts. The data
Ellington gathered and saved demonstrated that Plaintiff had only sent the “topless
photo” of herself to Defendant Clark.
¶ 23 After a jury trial, the trial court entered judgment against Defendant Clark for
libel per se, unlawful disclosure of private images/revenge porn, and IIED on
September 17, 2019. Plaintiff was awarded $1,510,000.00 in compensatory damages
and $500,000.00 in punitive damages. Defendant Clark filed a motion for judgment
notwithstanding the verdict (“JNOV”), and in the alternative, a motion for a new trial
on September 26, 2019. The trial court denied Defendant Clark’s motions on October
30, 2019. Defendant Clark appeals from both the September 17, 2019 judgment and
the October 30, 2019 order denying his post-trial motion.
II. Discussion
¶ 24 Defendant Clark raises several arguments on appeal. Each will be addressed
in turn.
A. Ellington’s Testimony
¶ 25 Defendant Clark first contends the trial court erred “by admitting evidence
and testimony from an expert witness who was not qualified as such.” We disagree.
1. Standard of Review CLARK V. CLARK
¶ 26 As a preliminary matter, the parties dispute the proper appellate standard of
review. Defendant Clark contends the appropriate standard of review is de novo,
because “[w]here the plaintiff contends the trial court’s decision is based on an
incorrect reading and interpretation of the rule governing admissibility of expert
testimony, the standard of review on appeal is de novo.” Cornett v. Watauga Surgical
Grp., P.A., 194 N.C. App. 490, 493, 669 S.E.2d 805, 807 (2008) (citations omitted).
Conversely, Plaintiff asks this Court to review the admission of Ellington’s testimony
for an abuse of discretion. Rule 104(a) of our rules of evidence provides that
“preliminary questions concerning the qualifications of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be determined by the
court.” N.C. Gen. Stat. § 8C-1, Rule 104(a) (2020). Decisions made under Rule 104(a)
are addressed to the sound discretion of the trial court. See State v. Fearing, 315 N.C.
167, 174, 337 S.E.2d 551, 554 (1985).
¶ 27 After careful review of the applicable law, we review de novo whether Ellington
testified as an expert witness. See State v. Broyhill, 254 N.C. App. 478, 488, 803
S.E.2d 832, 839 (2017) (citation omitted); see also State v. Jackson, 258 N.C. App. 99,
107, 810 S.E.2d 397, 402 (2018) (noting that the Court applied a de novo standard of
review “because determining whether the State’s experts’ testimonies constituted
expert opinions . . . was a question” of law.) (citing State v. Davis, 368 N.C. 794, 797-
98, 785 S.E.2d 312, 314-15 (2015)). “Under a de novo review, the court considers the CLARK V. CLARK
matter anew and freely substitutes its own judgment for that of the lower tribunal.”
State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and
internal quotation marks omitted). However, whether the trial court erroneously
admitted Ellington’s testimony is reviewed for an abuse of discretion. See Crocker v.
Roethling, 363 N.C. 140, 143, 675 S.E.2d 625, 628-29 (2009) (citation omitted); see
also State v. Turbyfill, 243 N.C. App. 183, 185-86, 776 S.E.2d 249, 252 (2015) (citation
omitted). “Abuse of discretion results where the Court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” Turbyfill, 243 N.C. App. at 185-86, 776 S.E.2d at 252 (citation
omitted).
2. Whether Ellington’s Testimony Constitutes Expert Testimony
¶ 28 The parties next dispute whether Ellington testified as an expert or gave a lay
opinion. “Our Supreme Court . . . explained the threshold difference between expert
opinion and lay witness testimony.” Broyhill, 254 N.C. App. at 485, 803 S.E.2d at 839
(citing Davis, 368 N.C. at 798, 785 S.E.2d at 315). “[W]hen an expert witness moves
beyond reporting what he saw or experienced through his senses, and turns to
interpretation or assessment ‘to assist’ the jury based on his ‘specialized knowledge,’
he is rendering an expert opinion.” Davis, 368 N.C. at 798, 785 S.E.2d at 315 (quoting
N.C. Gen. Stat § 8C-1, Rule 702(a)). “Ultimately, ‘what constitutes expert opinion
testimony requires a case-by-case inquiry’ through an examination of ‘the testimony CLARK V. CLARK
as a whole and in context.’ ” Broyhill, 254 N.C. App. at 485, 803 S.E.2d at 839 (quoting
Davis, 368 N.C. at 798, 785 S.E.2d at 315).
¶ 29 Here, Ellington testified about the general process for making a forensic or
digital copy of electronic devices and specifically testified as to how he made a copy of
Plaintiff’s electronic devices. Ellington’s testimony laid the foundation 4 for a flash
drive containing files from Plaintiff’s devices, demonstrating Plaintiff did not send
the “topless photo” to anyone other than Defendant Clark. A review of Ellington’s
testimony reveals that he testified not as an expert, but as a lay witness. Ellington
testified as to what he “saw or experienced” in creating copies of Plaintiff’s devices
and accounts. He did not interpret or assess the devices or accounts but explained the
process he used for Plaintiff’s devices was one that he did daily.
¶ 30 Presuming arguendo Ellington testified as an expert, Defendant Clark failed
to sufficiently demonstrate prejudice. See State v. Babich, 252 N.C. App. 165, 172,
797 S.E.2d 359, 364 (2017) (“Where it does not appear that the . . . admission of
evidence played a pivotal role in determining the outcome of the trial, the error is
harmless.”) (quoting State v. Mason, 144 N.C. App. 20, 27-28, 550 S.E.2d 10, 16
(2001)). Here, Plaintiff testified about the text messages, emails, and social media
messages and postings. Ellington’s testimony was not “pivotal” in determining
4 Defendant Clark does not argue that the flash drive was improperly authenticated
under N.C. Gen. Stat. § 8C-1, Rule 901. CLARK V. CLARK
whether Defendants Clark and Barrett posted Plaintiff’s nude breasts on the
internet; rather, it corroborated Plaintiff’s testimony that she sent the topless
photograph to Defendant Clark. Therefore, we find no error in the trial court’s
decision to allow Ellington to testify.
B. IIED Claims
¶ 31 Next, Defendant Clark contends the trial court erred by allowing Plaintiff’s
IIED claim to proceed “when the conduct is subsumed by other causes of action,” and
by denying Defendant Clark’s post-trial motion “because there was insufficient
evidence for the claim of IIED to be submitted to the jury.” We disagree.
¶ 32 Whether Plaintiff’s IIED cause of action is subsumed by her other asserted
torts is a question of law reviewed de novo. See Piazza v. Kirkbride, 246 N.C. App.
576, 579, 785 S.E.2d 695, 698 (2016), modified, 372 N.C 137, 827 S.E.2d 479 (2019).
“The standard of review of a ruling entered upon a motion for judgment
notwithstanding the verdict is ‘whether, upon examination of all the evidence in the
light most favorable to the nonmoving party, and that party being given the benefit
of every reasonable inference drawn therefrom, the evidence is sufficient to be
submitted to the jury.’ ” Everhart v. O’Charley’s Inc., 200 N.C. App. 142, 148-49, 683
S.E.2d 728, 735 (2009) (quoting Branch v. High Rock Realty, Inc., 151 N.C. App. 244,
249-50, 565 S.E.2d 248, 252 (2002)). Generally, “[i]f there is more than a scintilla of
evidence supporting each element of the nonmoving party’s claim, the motion for CLARK V. CLARK
directed verdict or JNOV should be denied.” Horner v. Byrnett, 132 N.C. App. 323,
325, 511 S.E.2d 342, 344 (1999) (citation omitted); see also Norman Owen Trucking,
Inc. v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998). “A scintilla of
evidence is defined as very slight evidence.” Hayes v. Waltz, 246 N.C. App. 438, 442-
43, 784 S.E.2d 607, 613 (2016).
¶ 33 In determining whether the trial court erred in denying a JNOV, “we must
take the plaintiff's evidence as true, and view all of the evidence in the light most
favorable to him/her, giving him/her the benefit of every reasonable inference which
may be legitimately drawn therefrom, with conflicts, contradictions, and
inconsistencies being resolved in the plaintiff's favor.” Watson v. Dixon, 130 N.C.
App. 47, 52, 502 S.E.2d 15, 19 (1998) (citations and internal quotation marks
3. Election of Remedies
¶ 34 Defendant Clark contends the trial court erred in permitting Plaintiff to
pursue her claim for IIED, “when the conduct is subsumed by other causes of action.”
Defendant Clark specifically contends that Plaintiff cannot recover under both IIED
and another tort for the same conduct. Plaintiff argues Defendant Clark failed to
preserve this argument for appellate review, as it “was never raised in [Defendant]
Clark’s post-trial motions.”
¶ 35 “One is held to have made an election of remedies when he chooses with CLARK V. CLARK
knowledge of the facts between two inconsistent remedial rights.” Lamb v. Lamb, 92
N.C. App. 680, 685, 375 S.E.2d 685, 687 (1989) (citation omitted). “The purpose of
the doctrine of election of remedies is to prevent more than one redress for a single
wrong.” Triangle Park Chiropractic v. Battaglia, 139 N.C. App. 201, 204, 532 S.E.2d
833, 835 (2000) (citation omitted). The doctrine of “[e]lection of remedies is an
affirmative defense which must be pleaded by the party relying on it.” North Carolina
Federal Sav. & Loan Ass’n v. Ray, 95 N.C. App. 317, 323, 382 S.E.2d 851, 856 (1989)
(citations omitted).
¶ 36 While Defendant Clark contends Plaintiff’s IIED claim should not have been
submitted to a jury because it was subsumed by other causes of action, Defendant
Clark did not raise the defense of election of remedies at trial or in his post-trial
motions. Therefore, he may not raise this argument on appeal. Id.; see also State ex
rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 704, 535 S.E.2d 84, 92-93
(2000).
4. Sufficiency
¶ 37 Next, Defendant Clark contends the trial court erred in denying his post-trial
motions because Plaintiff did not present evidence to support each element of IIED.
We disagree.
¶ 38 “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 CLARK V. CLARK
cause (3) severe emotional distress to another.” Norton v. Scotland Mem’l Hosp., Inc.,
250 N.C. App. 392, 397, 793 S.E.2d 703, 708 (2016) (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.” Id. (citation omitted).
a. Severe Emotional Distress
¶ 39 Defendant Clark first argues Plaintiff failed to present evidence that she
suffered from “severe emotional distress.” We disagree.
¶ 40 “[T]he term ‘severe emotional distress’ means 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.” Waddle v.
Sparks, 331 N.C. 73, 83, 414 S.E.2d 22, 27 (1992) (citation and emphasis omitted).
However, severe emotional distress does not require medical expert testimony.
Williams v. HomEq Serv. Corp., 184 N.C. App. 413, 419, 646 S.E.2d 381, 385 (2007).
Testimony of a plaintiff’s “friends, family, and pastors can be sufficient to support a
claim. . . .” Id. (citations omitted).
¶ 41 Here, Plaintiff testified at trial that she cried hysterically, hyperventilated,
and sought out a counselor at a local clinic in response to the conduct of Defendants
Clark and Barrett. One of Plaintiff’s friends testified that Plaintiff was “very CLARK V. CLARK
emotionally distraught and crying” on a weekly basis and that Plaintiff experienced
anxiety. Although Plaintiff did not attend counseling for her anxiety on a regular
basis, she testified this was out of fear that such treatment would negatively impact
her probability of maintaining shared custody of her children. Taking the evidence
in the light most favorable to Plaintiff, we hold there was more than a scintilla of
evidence she suffered severe emotional distress as a result of the conduct of
Defendants Clark and Barrett.
b. Causation
¶ 42 Defendant Clark further contends the trial court erred in denying his post-trial
motion because Plaintiff failed to show a causal link between Defendant Clark’s
conduct and Plaintiff’s emotional harm. We disagree.
¶ 43 Intentional infliction of emotional distress requires outrageous conduct that is
intended to cause and does cause severe emotional distress. See Hogan v. Forsyth
Country Club Co., 79 N.C. App. 483, 487-88, 340 S.E.2d 116, 119-20 (1986) (citation
The tort may also exist where defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress. Recovery may be had for the emotional distress so caused and for any other bodily harm which proximately results from the distress itself.
Id. (citation omitted).
¶ 44 Defendant Clark argues Plaintiff failed to show his conduct caused Plaintiff CLARK V. CLARK
severe emotional distress because Plaintiff experienced “stroke-like symptoms” and
was diagnosed with “migraines and stress” prior to the complained of conduct to
support her IIED claim. While the trial court noted Plaintiff’s emotional distress
included “stroke-like symptoms,” it did not solely rely on such symptoms in finding
Plaintiff produced evidence of severe emotional distress. Specifically, the trial court
noted, “that Defendant Clark’s conduct did cause severe emotional distress to
Plaintiff in the form of anxiety and also physical manifestations, including stroke like
symptoms.” Plaintiff presented evidence that Defendant Clark acted with a disregard
to Plaintiff’s emotional state and that there was a high possibility of emotional
distress in that, Defendant Clark posed as “Brian Bragg” and engaged in “long-term
electronic harassment of . . . Plaintiff to include, inter alia, calling the Plaintiff
disparaging names, including ‘whore’ and ‘white trash’ ”; Defendant Clark created a
fake Kik profile and posed as Plaintiff, causing the profile to become a member in
various chatrooms intended for “no strings attached sex”; and Defendant Clark posted
libelous social media postings about Plaintiff on Craigslist and Facebook.
¶ 45 There is no dispute Plaintiff experienced “stroke-like symptoms” prior to the
parties’ execution of the separation agreement. Plaintiff experienced anxiety,
hyperventilation, and other emotional distress as a result of the conduct of
Defendants Clark and Barrett. Plaintiff testified this was caused by Defendants
Clark and Barrett messaging her that they would do “everything in [their] power to CLARK V. CLARK
make [her] life miserable” and by discovering fake “Liz Clark” Kik profiles soliciting
“no strings attached” sexual intercourse. Accordingly, we hold there was more than a
scintilla of evidence to find a causal link between the complained of conduct and
Plaintiff’s emotional distress.
c. Outrageous Conduct
¶ 46 Next, Defendant Clark argues Plaintiff failed to present sufficient evidence of
extreme and outrageous conduct because trading mere insults does not give rise to a
claim of IIED. We disagree.
¶ 47 “[T]he initial determination of whether conduct is extreme and outrageous is a
question of law,” to be determined by the court. Johnson v. Bollinger, 86 N.C. App.
1, 6, 356 S.E.2d 378, 381 (1987) (citing Briggs v. Rosenthal, 73 N.C. App. 672, 676,
327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985)). Conduct is
considered extreme or outrageous “when a defendant’s conduct exceeds all bounds
usually tolerated by decent society.” Watson, 130 N.C. App. at 52, 502 S.E.2d at 19
(citation omitted). Conduct has also been deemed “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.” Chidnese v. Chidnese, 210 N.C. App. 299, 316, 708 S.E.2d 725,
738 (2011) (internal quotation marks and citation omitted).
The liability clearly does not extend to mere insults, CLARK V. CLARK
indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime, plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. There must still be freedom to express an unflattering opinion . . . .
Id. (citation omitted). In Watson v. Dixon, this Court found sufficient evidence of
“extreme and outrageous behavior” where the defendant “harass[ed]” the plaintiff,
and “frightened and humiliated [the plaintiff] with cruel practical jokes, which
escalated to obscene comments and behavior of a sexual nature . . . .” 130 N.C. App.
at 53, 502 S.E.2d at 20.
¶ 48 Viewing the evidence in the light most favorable to Plaintiff, and taking that
evidence as true, the evidence tends to show that Defendant Clark began harassing
and stalking Plaintiff after the date of separation; frightened Plaintiff by stating, “We
are going to continue doing everything in our power to make your life miserable”; and
humiliated Plaintiff by posting advertisements and photographs of Plaintiff online,
containing Plaintiff’s personal information. Thus, we hold the trial court did not err
in denying Defendant Clark’s JNOV, as Plaintiff presented more than a scintilla of
evidence of “extreme and outrageous behavior.” See Watson, 130 N.C. App. at 53, 502
S.E.2d at 20 (citing Denning-Boyles v. WCES, Inc., 123 N.C. App. 409, 473 S.E.2d 38
(1996); Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232 (1989), CLARK V. CLARK
disc. review improvidently allowed, 326 N.C. 356, 388 S.E.2d 769 (1990); Hogan, 79
N.C. App. 483, 340 S.E.2d 116).
C. Plaintiff’s Libel Claim
¶ 49 Next, Defendant Clark contends the trial court erred in denying his post-trial
motion with respect to Plaintiff’s libel claim. Defendant Clark brings forth two
arguments with respect to Plaintiff’s claim for libel per se; namely, whether Plaintiff
failed to prove the libelous statements were published and whether two libelous
publications were properly authenticated.
¶ 50 “North Carolina law recognizes three classes of libel . . . . [P]ublications
obviously defamatory . . . are called libel per se.” Daniels v. Metro Magazine Holding
Co., L.L.C., 179 N.C. App. 533, 538, 634 S.E.2d 586, 590 (2006) (citation omitted).
Libel per se is
a publication by writing, printing, signs or pictures which, when considered alone without innuendo, colloquium or explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt, or disgrace.
Renwick v. News & Observer Pub. Co., 310 N.C. 312, 317-18, 312 S.E.2d 405, 409
(1984) (citation omitted). “It is an elementary principle of law that there can be no
libel without a publication of the defamatory matter.” Satterfield v. McLellan Stores
Co., 215 N.C. 582, 584, 2 S.E.2d 709, 711 (1939). “To constitute a publication, such CLARK V. CLARK
as will give rise to a civil action, there must be a communication of the defamatory
matter to some third person or persons.” Id. (citation omitted).
a. Publication
¶ 51 Defendant Clark first contends Plaintiff failed to present sufficient “evidence
that Defendant Clark publicized the alleged content to Facebook or Craigslist.” We
disagree.
¶ 52 There are two libelous electronic social media postings at issue: a Craigslist
advertisement and the Facebook “weight loss” advertisement. Craigslist itself is a
website in which individuals can post personal advertisements for third-party
viewing. Plaintiff testified she discovered the Craigslist advertisement, and
presumably, other individuals observed the personal advertisement as well. Thus,
there was sufficient evidence that the Craigslist advertisement was published.
¶ 53 Plaintiff further testified that she responded to the Craigslist ad online with
an insulting message directed at Defendant Clark. Defendant Clark, in response,
text messaged a picture of Plaintiff’s message, inquiring as to why she had sent him
such a message. From Defendant Clark’s response, Plaintiff was able to see that the
“poster” of the personal ad used the email “elizabethclark0403.” This was not
Plaintiff’s personal email, but she attempted to log into the email account. Because
Plaintiff did not have the login information for “elizabethclark0403,” she attempted CLARK V. CLARK
to “recover” the login information through Google’s email system.5 Upon doing so,
Plaintiff discovered the “recovery email” for “elizabethclark0403” was Defendant
Clark’s personal email address. Therefore, we hold there was more than a scintilla of
evidence that Defendant Clark published the Craigslist advertisement.
¶ 54 Defendant Clark further argues there was insufficient evidence that
Defendant Clark published the Facebook “weight loss” advertisement. We disagree.
¶ 55 Plaintiff testified a third party sent Plaintiff the Facebook advertisement,
establishing that the ad was indeed published. Plaintiff further testified that both
photographs used in the advertisement were in the sole possession of Defendant
Clark. Further, “Brian Bragg” mentioned Plaintiff’s post-pregnancy photographs and
that he would “make sure to find” such photographs shortly before the Facebook
advertisement was posted. As Plaintiff presented more than a scintilla of evidence
that Defendant Clark published the Facebook advertisement, we find no error.
b. Authentication
¶ 56 Defendant Clark next argues the trial court erred by denying his motion for
JNOV because Plaintiff did not properly authenticate the libelous postings. We
5 If a “gmail” or Google email account holder forgot their password or username, they
can recover their Google account by entering certain information such as their username, their “recovery” email address, or a phone number. See How to recover your Google account or Gmail, https://support.google.com/accounts/answer/7682439?hl=en. A “recovery email” is a separate email account Google account holders can use to recover their lost username or password. CLARK V. CLARK
¶ 57 Under Rule 901 of our evidentiary rules, “[t]he requirement of authentication
. . . is satisfied by evidence sufficient to support a finding that the matter in question
is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2020). Rule 901(b)
provides examples of authentication methods that satisfy the requirements of
Subsection (a), including testimony of a witness with knowledge “that a matter is
what it is claimed to be.” N.C. Gen. Stat. § 8C-1, Rule 901(b)(1). Here, Plaintiff
authenticated the libelous electronic postings through her own testimony. Plaintiff
testified that she personally saw the advertisement, recognized it to be about her, and
made a copy of the ad. Likewise, Plaintiff authenticated the Facebook advertisement
by testifying the advertisement was sent directly to her by a third party and the
advertisement exhibits characteristics of Facebook as a social media site, in that it
demonstrates where viewers can interact with the posting. Accordingly, we hold
Plaintiff sufficiently authenticated each libelous posting through first-hand
knowledge under Rule 901(b)(1).
D. N.C. Gen. Stat. § 14-190.5A
¶ 58 Next, Defendant Clark contends the trial court erred by denying his post-trial
motion as there was insufficient evidence for the issue of “revenge porn” to be
submitted to the jury. Specifically, Defendant Clark argues Plaintiff failed to show
that he shared an image of “intimate parts” under N.C. Gen. Stat. § 14-190.5A. CLARK V. CLARK
¶ 59 N.C. Gen. Stat. § 14-190.5A prohibits the “disclosure of private images” and is
commonly known as the “revenge porn” statute. Section 14-190.5A provides,
A person is guilty of disclosure of private images if all of the following apply:
(1) The person knowingly discloses an image of another person with the intent to do either of the following:
a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.
(3) The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.
(4) The person discloses the image without the affirmative consent of the depicted person.
N.C. Gen. Stat. § 14-190.5A(b) (2020). “Intimate parts” is statutorily defined as “[a]ny
of the following naked human parts: (i) male or female genitals, (ii) male or female
pubic area, (iii) male or female anus, or (iv) the nipple of a female over the age of 12.”
N.C. Gen. Stat. § 14-190.5A(a)(3).
¶ 60 Defendant Clark argues in his brief that the issue of revenge porn should not
have been submitted to the jury, because the Facebook “weight loss” advertisement CLARK V. CLARK
had a star emoji6 covering one of Plaintiff’s nipples and did not violate the “revenge
porn” statute or Facebook’s “Community Standards.” However, Defendant Clark
ignores that the topless photograph that appeared on Facebook with a star is the
same photograph shared through Kik, sans star emoji. We hold that there was
sufficient evidence as to each element contained within the “revenge porn” statute
such that the trial court did not err in submitting the issue to the jury.
E. Separation Agreement & Property Settlement
¶ 61 In his sixth argument on appeal, Defendant Clark contends that “[t]o the
extent that the factual basis for any of Plaintiff’s claims against Defendant Clark
occur prior to March 16, 2017, they are waived by a provision in the parties’
separation agreement entitled ‘Mutual Release.’ ”
¶ 62 The “Mutual Release” provision provides,
[E]ach party does hereby release and discharge the other of and from all causes of action, claims, rights or demands whatsoever, at law or in equity, which either of the parties ever had or now has against the other, known or unknown, by reason of any matter, cause, or thing up to the date of the execution of this agreement, except the cause of action for divorce based upon the separation of the parties. It is the intention of the parties that henceforth there shall be, as between them, only such rights and obligations as are specifically provided for in this agreement, the right of
6 The Merriam-Webster dictionary defines an “emoji” as “any of various small images,
symbols, or icons used in text fields in electronic communication (such as text messages, email, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc.” CLARK V. CLARK
action for divorce, and such rights and obligations as are specifically provided for in any deed or other instrument executed contemporaneously or in connection herewith.
However, Plaintiff’s claims arise from Defendant Clark’s conduct that occurred after
the parties executed the agreement in March 2017. Plaintiff’s claims arise from
Defendant Clark’s posting of libelous statements and explicit photographs in 2018.
Therefore, this assignment of error is without merit.
F. Damages
¶ 63 In Defendant Clark’s final argument on appeal, he contends the trial court
erred in denying his motion for JNOV “because the damages awarded to Plaintiff
were improper and not supported by the evidence.” We disagree.
¶ 64 The trial court has discretion to grant a new trial where the jury awards
“[e]xcessive or inadequate damages appearing to have been given under the influence
of passion or prejudice.” N.C. R. Civ. P. 59(a)(6). However,
our appellate courts should place great faith and confidence in the ability of our trial judges to make the right decision, fairly and without partiality, regarding the necessity for a new trial. Due to their active participation in the trial, their first-hand acquaintance with the evidence presented, their observances of the parties, the witnesses, the jurors and the attorneys involved, and their knowledge of various other attendant circumstances, presiding judges have the superior advantage in best determining what justice requires in a certain case.
Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982).
“Consequently, an appellate court should not disturb a Rule 59 order unless it is CLARK V. CLARK
reasonably convinced by the cold record that the trial judge’s ruling probably
amounted to a substantial miscarriage of justice.” Id.
¶ 65 Here, there is no evidence of a “substantial miscarriage of justice.” Although
the jury awarded $1,000,0000 in damages for libel per se, libel per se allows for
presumed damages for pain and suffering without a showing of special damages. See
Iadanza v. Harper, 169 N.C. App. 776, 779-80, 611 S.E.2d 217, 221 (2005).
¶ 66 Defendant Clark also contends that the award of punitive damages was
inappropriate as the trial court failed to receive evidence or make findings of fact
concerning all of the factors enumerated in N.C. Gen. Stat. § 1D-35. However, the
jury is not mandated to consider all factors enumerated in Section 1D-35. The plain
language of the statute allows the trier of fact to consider such factors, but it is not a
requirement. Accordingly, we hold the trial court did not err in denying Defendant
Clark’s post-trial motion with respect to damages.
III. Conclusion
¶ 67 After careful review of the record and applicable law, we conclude there was
no error at trial. Additionally, we hold the trial court did not err in denying
Defendant Clark’s motion for JNOV. Plaintiff presented more than a scintilla of
evidence in support of each asserted cause of action. We further hold the trial court
did not err in denying Defendant Clark’s post-trial motion because the separation
agreement is inapplicable to the complained of conduct and the damages awarded to CLARK V. CLARK
Plaintiff were proper.
NO ERROR AND AFFIRMED.
Judges TYSON and HAMPSON concur.