DeLoy v. Lekowski

• Court: Court of Appeals of North Carolina
• Decided: October 15, 2025
• Docket: 25-2
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-2

Filed 15 October 2025

Iredell County, No. 22CVS000036-480

DONALD DELOY, Plaintiff,

v.

DARLENE LEKOWSKI, Defendant.

Appeal by Plaintiff from Order entered 5 February 2023, 13 May 2024, and 16

May 2024 by Judge R. Stuart Albright in Iredell County Superior Court. Cross-

Appeal by Defendant from Orders entered 4 and 5 February 2023. Heard in the Court

of Appeals 20 May 2025.

Pope McMillan, P.A., by Christian Kiechel, for Plaintiff-Appellant/Cross- Appellee.

McAngus, Goudelock & Courie, PLLC, by Jeffrey B. Kuykendal, for Defendant- Appellee/Cross-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Donald DeLoy (Plaintiff) appeals from a Judgment entered upon a jury verdict

finding him liable for libel per quod against Darlene Lekowski (Defendant); a DELOY V. LEKOWSKI

Opinion of the Court

Punitive Damages Opinion; an Order denying Plaintiff’s Motion for Judgment

Notwithstanding the Verdict; and a Supplemental Judgment awarding Defendant

certain attorney fees and costs. Defendant also cross-appeals from an Order granting

directed verdict in favor of Plaintiff on Defendant’s counterclaims for libel per se,

slander per se, and slander per quod. The Record before us tends to reflect the

following:

The parties in this case are siblings. The underlying dispute between the

parties began with a disagreement over text message related to the care of their

father. After trading some slights related to the issue, Defendant wrote to Plaintiff:

“I’d be very very careful how you talk to me and treat me as I could completely destroy

your life if you want me to.”1 Defendant then went on to accuse Plaintiff of raping

her when they were children, repeatedly called him a “rapist,” and alleged Plaintiff

had “destroyed my entire childhood and upbringing.” Plaintiff repeatedly denied

these accusations. Defendant continued making the same allegations by text,

including to Plaintiff’s wife who contacted Defendant using Plaintiff’s phone.

On 12 May 2021, Defendant emailed Plaintiff and their three other siblings

generally accusing Plaintiff and another brother of sexually assaulting her when all

parties were children and claimed they had later admitted to the assaults. In

pertinent part, Defendant’s email read as follows:

1 The text messages and emails in this case contain multiple spelling and grammatical errors.

We reproduce them here as originally written.

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Good morning. I’ve been getting calls, texts and emails that a lot of misinformation is being told about the situation so I am sending this email to state the facts:

1) I was mentally and physically sexually assaulted at a very young age by both [brother] and [Plaintiff] who at one point have both admitted to it[.]

....

6) I have never been on psych medication nor have I ever had a nervous breakdown. Those are all lies and I would like to see proof with any medical paperwork either one of you have that would prove this. What happened is I became incredibly frustrated by the way [Plaintiff] was texting and almost screaming at me that dad needed glasses. After all I’ve done for mom & dad, I told him he needed to be extremely careful the way he talks to me going forward as I’m not going to take that behavior anymore.

Again, I’m not going to accept any threats or any lies. We all know the truth and what happened. Again, all that was needed was a very sincere apology by June by [Plaintiff] chose to call me crazy instead and started blowing it up and calling everyone.

Later the same day, Plaintiff responded: “This is complete BS! I have never admitted

to any part of her allegations! . . . [Defendant] you need real help!” After an

intermediary email not relevant to this appeal, Plaintiff wrote:

You are completely consumed by your hate! Facts can be facts as they never happened!

I never admitted to any of your claims at any time!

This has nothing to due without your past and you fake BS! This has to do with the fact that you are a complete Psychopath that could not handle losing control over someone you never had

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control of to begin with!

You really need to get some help! You are completely dilution all!

Two weeks later, Plaintiff sent a final email to Defendant on the email chain, stating:

“You are a psychopathic lier! I never did any of this and you know it! You better pray

to god I do not meet up with you and your family again!”

Plaintiff filed a Complaint on 6 January 2022 alleging Defendant had defamed

him and specifically bringing claims for libel per se, slander per se, and intentional

infliction of emotional distress (IIED), and asking for punitive damages. On 14 March

2022, Defendant filed an Answer and Counterclaims, alleging libel per se, slander per

se, libel per quod, slander per quod, and IIED, and seeking punitive damages.

Plaintiff voluntarily dismissed his claim for IIED prior to trial.

This matter came on for trial on 29 January 2024. At trial, Defendant testified

to the truth of the allegations she had made against Plaintiff. Six other witnesses

testified regarding the underlying sexual assault allegations with conflicting

evidence. Rich Nesbit, a life coach, also testified for Defendant. Nesbit’s testimony

was submitted by video deposition. Nesbit testified he is not a licensed mental health

professional, but he had met Defendant in 2005 and began providing her with,

essentially, marriage counseling and individual counseling. Defendant testified that

her counseling with Nesbit since May 2021 had focused on “[d]ealing with the fact

that [Plaintiff]’s calling me a liar and the fact that all of this has bubbled up and

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surfaced.” Defendant also mentioned two other individuals she had seen for

counseling since May 2021, but neither testified at trial and their substantive

testimony sought to be admitted was excluded. Defendant stated “I’m reliving

everything all over again, and I’ve had to go on medication to help me. I’ve had to

have therapy to help me through this.” Specifically, Defendant testified she had spent

“a little over $17,000.00” on Nesbit and the two therapists. Defendant presented no

other evidence regarding the cost of any mental health treatment she had received.

At the close of both sides’ cases in chief, the trial court heard arguments on

Plaintiff’s Motion for Directed Verdict on all of Defendant’s claims. The trial court

granted directed verdict for Plaintiff on Defendant’s claims for libel per se, slander

per se, and IIED; however, the trial court allowed Defendant’s claims on libel per quod

and slander per quod to go forward. After rebuttal evidence and during the charge

conference, the trial court dismissed Defendant’s claim for slander per quod. The

trial court stated: “One of the elements the defendant has to prove for a slander per

quod claim is that the defendant intended the statement to charge the defendant with

having committed the crime or offense involving moral turpitude and/or impeach the

defendant and the defendant’s trade or profession and/or impute to the defendant a

loathsome disease. None of those were proven in this case or alleged in the

complaint[.]”

On 5 February 2024, the jury returned a verdict rejecting Plaintiff’s claims for

slander and libel. The jury found in favor of Defendant on her claim for libel per quod.

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The jury awarded compensatory damages of $150,000.00 and punitive damages of

$60,000.00 to Defendant. The same day, the trial court entered a Punitive Damages

Opinion upholding the jury’s award.

On 14 February 2024, Plaintiff filed a Motion for Judgment Notwithstanding

Verdict (JNOV), Motion for Amendment of Findings, Motion for New Trial, and

Motion for Relief from Judgment. On 13 May 2024, the trial court entered an Order

denying Plaintiff’s post-trial Motions and a Supplemental Judgment awarding

$9,794.15 in costs and $30,000.00 in attorney fees to Defendant. Plaintiff timely filed

Notice of Appeal on 28 May 2024, appealing the Supplemental Judgment, the Order

denying his post-trial Motions, the Judgment, and the Punitive Damages Opinion.

On 7 June 2024, Defendant filed Cross-Notice of Appeal from the trial court’s grant

of directed verdict for Plaintiff on Defendant’s claims for libel per se, slander per se,

and slander per quod.

Issues

The issues on appeal are whether the trial court erred by: (I) declining to grant

directed verdict or JNOV for Plaintiff on Defendant’s counterclaim for libel per quod

and granting directed verdict in favor of Plaintiff on Defendant’s claims for libel per

se, slander per se, slander per quod, and intentional infliction of emotional distress;

and (II) declining to reduce the damages awarded to Defendant.

Analysis

I. Directed Verdicts and JNOV

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“When considering the denial of a directed verdict or JNOV, the standard of

review is the same.” Green v. Freeman, 367 N.C. 136, 140, 749 S.E.2d 262, 267 (2013).

“In determining the sufficiency of the evidence to withstand a motion for directed

verdict, all of the evidence which supports the non-movant’s claim must be taken as

true and considered in the light most favorable to the non-movant, giving the non-

movant the benefit of every reasonable inference which may legitimately be drawn

therefrom and resolving contradictions, conflicts, and inconsistencies in the non-

movant’s favor.” Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989).

“To survive a motion for directed verdict or JNOV, the non-movant must

present ‘more than a scintilla of evidence’ to support its claim.” Morris v. Scenera

Rsch., LLC, 368 N.C. 857, 861, 788 S.E.2d 154, 157 (2016) (quoting Stark ex rel.

Jacobsen v. Ford Motor Co., 365 N.C. 468, 480, 723 S.E.2d 753, 761 (2012)). “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) (citation omitted). Still, the non-movant’s

evidence must “do more than raise a suspicion, conjecture, guess, surmise, or

speculation as to the pertinent facts in order to justify its submission to the jury.”

Jenrette Transp. Co. v. Atl. Fire Ins. Co., 236 N.C. 534, 539, 72 S.E.2d 481, 485 (1952)

(citation omitted). We review de novo a trial court’s determination on a motion for

directed verdict or JNOV. Morris, 368 N.C. at 861, 788 S.E.2d at 158 (citation

omitted).

Here, Plaintiff challenges the denial of his Motion for Directed Verdict and

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Motion for JNOV on Defendant’s claim for libel per quod. Defendant, in turn, contests

the trial court’s grant of directed verdict for Plaintiff on Defendant’s claims for libel

per se, slander per se, slander per quod, and IIED. We address each in turn.

A. Libel Per Quod

Plaintiff argues the trial court erred by denying his Motions for Directed

Verdict and JNOV on Defendant’s claim for libel per quod. “In North Carolina, the

term defamation applies to the two distinct torts of libel and slander.” Boyce & Isley,

PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002). “Generally, to

make out a prima facie case for defamation, plaintiff must allege and prove that the

defendant made false, defamatory statements of or concerning the plaintiff, which

were published to a third person, causing injury to the plaintiff’s reputation.” Griffin

v. Holden, 180 N.C. App. 129, 133, 636 S.E.2d 298, 302 (2006) (citation and quotation

marks omitted).

“Libel is generally divided into three classes: (1) publications obviously

defamatory which are called libel per se; (2) publications susceptible of two

interpretations one of which is defamatory and the other not; and (3) publications not

obviously defamatory but when considered with innuendo, colloquium, and

explanatory circumstances become libelous, which are termed libel per quod.” Id. at

133-34, 636 S.E.2d at 302-03 (quoting Renwick v. News & Observer Publ’g Co., 310

N.C. 312, 316, 312 S.E.2d 405, 408 (1984)). “The elements of [claimant]’s prima facie

case for libel per quod . . . include the following: (1) defendant published false

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statements, (2) the statements were defamatory, (3) the statements were of or

concerning the [claimant], (4) the statements were published to a third person, [and]

(5) the publication caused special damage to [claimant].” Id. at 136, 636 S.E.2d at

304.

“[W]hen a publication is libelous per quod, the injurious character of the words

and some special damage must be pleaded and proved.” Id. at 134, 636 S.E.2d at 303

(citing Renwick, 310 N.C. at 316, 312 S.E.2d at 408). “[W]henever an allegedly

defamatory publication is ambiguous or capable of a meaning other than the obvious

one, it is for the jury to determine how it was understood by the recipient. However,

it is the province of the court to determine in the first instance whether a

communication is capable of a defamatory meaning.” Tyson v. L’Eggs Prods. Inc., 84

N.C. App. 1, 13, 351 S.E.2d 834, 841 (1987) (citing Bell v. Simmons, 247 N.C. 488,

495, 101 S.E.2d 383, 388 (1958)). “In determining whether a published article is

libelous, it must be read and considered in its setting.” Id. (citing Yancey v. Gillespie,

242 NC. 227, 230, 87 S.E.2d 210, 212 (1955)). “The circumstances of the publication

are pertinent, as well as the hearers’ knowledge of facts which would influence their

understanding of the words used.” Id. (citing Oates v. Wachovia Bank & Trust Co.,

205 N.C. 14, 17, 169 S.E. 869, 871 (1933)).

For example, in Tyson, employees made allegations of “terrible working

conditions” at their workplace to the editor of a local newspaper and a local news

network. Id. at 9, 351 S.E.2d at 839. The defendant employer “responded directly to

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these assertions ‘as a bunch of hogwash.’ ” Id. The employer further challenged

employees to “ ‘come out of the woodwork and speak their own minds,’ and caustically

criticized people who ‘want the money but don’t want to work for it.’ ” Id. at 10, 351

S.E.2d at 839. In determining the letter was not defamatory as a matter of law, this

Court noted the employer’s statement was “a direct response to the plaintiffs’ own

statements which by their nature invited response, and which were published on the

editorial page of the local newspaper, a forum in which plaintiffs knew others would

have an opportunity to state a contrary view.” Id. at 13, 351 S.E.2d at 841. The Court

further acknowledged the opinions of the individual defendants were “expressed in a

robust manner and with some anger or hostility toward the plaintiffs. However, the

plaintiffs having publicly expressed their own strong feelings on a controversial issue

of public interest, must have some ‘thickness of skin’ when the response is less than

favorable.” Id. Indeed, the Court concluded “the words used do not go beyond the

bounds of proper debate, and . . . the letter read as a whole and considered in its

setting is not reasonably susceptible of the defamatory meaning alleged by the

plaintiffs.” Id.

Here, viewing the evidence in the light most favorable to Defendant as the non-

movant, Defendant presented more than a scintilla of evidence to support each

element of her libel per quod claim. Defendant alleges as defamatory Plaintiff’s

statements that Defendant was lying when she wrote that Plaintiff sexually

assaulted her when they were children. There is no question Plaintiff’s statements

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were of or concerning Defendant or that they were published to a third party. As to

the remaining elements of libel per quod, Defendant’s testimony is sufficient to

support her claim that Plaintiff’s statements were false. Although there may be

significant contradictory evidence and evidence calling into question the credibility

of Defendant’s and others’ testimony, such issues are the purview of the jury, and this

Court will not reweigh credibility determinations on appeal. State v. Borlase, 387

N.C. 295, 307-08, 912 S.E.2d 795, 806 (2025) (“[A]n important aspect of the trial

court’s role as finder of fact is assessing the demeanor and credibility of witnesses,

often in light of inconsistencies or contradictory evidence. It is in part because the

trial court is uniquely situated to make this credibility decision that appellate courts

may not reweigh the underlying evidence presented at trial.”) (quoting Matter of

A.A.M., 379 N.C. 167, 174, 864 S.E.2d 509, 515 (2021)). Our Courts have consistently

noted that statements calling another a liar may be defamatory per quod. See, e.g.,

Stutts v. Duke Power Co., 47 N.C. App. 76, 82, 266 S.E.2d 861, 865 (1980). Moreover,

Plaintiff’s statements went beyond mere accusations of lying; rather, Plaintiff’s

statements, considered in context, claiming Defendant was a “psychopathic liar,”

“consumed by hate,” and “delusional” could be viewed as sufficiently derogatory to be

defamatory. And, indeed, Plaintiff acknowledged that if his statements were false,

they would be defamatory.

Defendant also sufficiently supported her claim for special damages in her

testimony regarding the costs of her therapy and other mental health services related

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to Plaintiff’s statements. As we will explain in greater detail below, although mental

anguish and emotional suffering alone are insufficient to support special damages,

costs pertaining to mental health treatment can constitute special damages. See

Tallent v. Blake, 57 N.C. App. 249, 255, 291 S.E.2d 336, 341 (1982) (“Special damages

include illness sufficient to require medical care and expense.”). Although Plaintiff’s

statements were not obviously defamatory on their face, when considered in context—

the private family setting and the nature of the underlying allegations—they may be

reasonably interpreted as defamatory. Thus, Defendant presented sufficient

evidence to submit her claim for libel per quod to the jury.

Plaintiff argues his statements were “unactionable rhetorical hyperbole.”

“Rhetorical hyperbole and expressions of opinion not asserting provable facts are

protected speech.” Daniels v. Metro Magazine Holding Co., LLC, 179 N.C. App. 533,

539, 634 S.E.2d 586, 590 (2006). Further, rhetorical hyperbole “might appear to make

an assertion, but a reasonable reader or listener would not construe that assertion

seriously.” Id. Yet the example Plaintiff points to only serves to underscore the

difference between such rhetorical hyperbole and Plaintiff’s statements here. In

Daniels, the defendant stated an insurance adjustor “intended to take [the defendant]

to a ‘gas chamber[.]’ ” Id. at 541, 634 S.E.2d at 591. This Court in that case held that

statement, as well as the defendant’s statements the insurance adjustor’s actions

“were equivalent to those of the ‘former Soviet security police’ ” or that she was a

fascist, were hyperbole that could not reasonably have been interpreted as stating an

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actual fact. Id.

In contrast, whether Defendant was lying about her previous sexual assaults

is a provable fact. See Lewis v. Rapp, 220 N.C. App. 299, 306, 725 S.E.2d 597, 603

(2012) (holding publication stating a candidate violated Code of Judicial Conduct was

defamatory because it could be investigated and proven false); Desmond v. News &

Observer Publ’g Co., 375 N.C. 21, 39, 846 S.E.2d 647, 659 (2020) (statements that

“imply a false assertion of fact” may be actionable for defamation even where

expressed as opinion); Milkovich v. Lorain J. Co., 497 U.S. 1, 21, 111 L. Ed. 2d 1

(1990) (allegations petitioner had lied in testimony before OSHAA board was “not the

sort of loose, figurative, or hyperbolic language” that would preclude a defamation

claim). Moreover, calling someone a “psychopathic liar” is in no way comparable to

stating someone intended to take another “to the gas chamber.” Plaintiff’s statements

should also be considered in their entirety: not only did Plaintiff call Defendant a

“psychopathic liar,” he also told Defendant she “need[ed] serious help[.]” Given the

severity of the allegations, a person could reasonably infer Plaintiff meant seriously

that Defendant was mentally unwell. Thus, Plaintiff’s statements were “capable of a

defamatory meaning,” which is the threshold question. Tyson, 84 N.C. App. at 13,

351 S.E.2d at 841 (citing Bell, 247 N.C. at 495, 101 S.E.2d at 388) (emphasis in

original).

Likewise, Plaintiff’s argument suggesting his statements could not be libelous

because he was merely responding to or denying Defendant’s allegations is mistaken.

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Although it is true the cases to which Plaintiff cites all concern allegedly defamatory

statements made in the first instance by the defendant, Plaintiff points to no case

articulating that such distinction is at all relevant in a defamation action. Indeed,

Plaintiff devotes substantial argument to Tyson; however, that case makes no

mention of the fact the defendant-employer was responding to the plaintiff-

employees’ statements being material to determining whether the employer’s

statements were defamatory. In effect, Plaintiff asks us to infer a rule based on the

circumstances of several cases where no rule has ever been articulated. We decline

to do so.

Thus, Defendant presented sufficient evidence to submit her claim for libel per

quod to the jury. Therefore, the trial court did not err in declining to grant Plaintiff’s

Motion for Directed Verdict or Motion for JNOV.

B. Libel Per Se and Slander Per Se

Defendant argues the trial court erred by granting Plaintiff’s Motions for

Directed Verdict or JNOV on Defendant’s claims for libel and slander per se. “[A] 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, 310

N.C. at 317, 312 S.E.2d at 408-09 (citation omitted). Similarly, “[s]lander per se is ‘an

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oral communication to a third party which amounts to (1) an accusation that

impeaches the plaintiff committed a crime involving moral turpitude; (2) an

allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an

imputation that the plaintiff has a loathsome disease.’ ” Boyce & Isley, 153 N.C. App.

at 29-30, 568 S.E.2d at 898 (quoting Phillips v. Winston-Salem/Forsyth Cnty. Bd. of

Educ., 117 N.C. App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. rev. denied, 340 N.C.

115, 456 S.E.2d 318 (1995)).

Our Courts have consistently held that “ ‘alleged false statements . . . calling

[a party] dishonest or charging that [a party] was untruthful and an unreliable

employee, are not actionable per se.’ ” Izydore v. Tokuta, 242 N.C. App. 434, 445, 775

S.E.2d 341, 349 (2015) (quoting Stutts, 47 N.C. App. at 82, 266 S.E.2d at 865). Our

Courts have so held with respect to both libel and slander. See, e.g., Gibson v. Mut.

Life Ins. Co. of N.Y., 121 N.C. App. 284, 289, 465 S.E.2d 56, 60 (1996) (slander); Pierce

v. Atl. Grp., Inc., 219 N.C. App. 19, 35, 724 S.E.2d 568, 579 (2012) (libel); Morris v.

Bruney, 78 N.C. App. 668, 677, 338 S.E.2d 561, 567 (1986) (slander); Ringgold v.

Land, 212 N.C. 369, 370-71, 193 S.E. 267, 268 (1937) (slander); Greensboro Scuba

Sch., LLC v. Robertson, 242 N.C. App. 383, 776 S.E.2d 363, 2015 WL 4429665, *4

(2015) (unpublished) (libel); Richardson v. Mancil, 208 N.C. App. 569, 706 S.E.2d 843,

2010 WL 5464905, *5 (unpublished) (2010) (libel and slander). While most of these

opinions deal with conflict between employees and employers, our Courts have also

applied this principle outside of the employment context. See Bruney, 78 N.C. App.

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at 677, 338 S.E.2d at 567 (allegations by child’s mother that child’s father had libeled

her to other family members and the minor child); Ringgold, 212 N.C. at 370-71, 193

S.E.2d at 267-68 (allegations defendant called plaintiff “a damn common dishonest

man”); Richardson, 208 N.C. App. 569, 2010 WL 5464905, *5 (allegations defendant

HOA board member failed to pay bills to third parties). Thus, consistent with our

caselaw, we conclude Plaintiff’s statements were not defamatory per se.

Moreover, with respect to Defendant’s claim for slander per se, we note slander

is defined in a more limited fashion than libel. “This Court has consistently stated

that only three types of defamatory statements, if published to a person other than

the one defamed, will support an action for slander per se: ‘those which (1) charge

[claimant] with a crime or offense involving moral turpitude, (2) impeach his trade or

profession, or (3) impute to him a loathsome disease.’ ” Donovan v. Fiumara, 114

N.C. App. 524, 527-28, 442 S.E.2d 572, 575 (1994). Compare Renwick, 310 N.C. at

317, 312 S.E.2d at 408-09 (stating libel per se encompasses the same three above

categories as well as those statements which “(4) otherwise tend[ ] to subject one to

ridicule, contempt or disgrace.”). Indeed, “[t]he policy of the law has much restricted

the range of defamatory utterances which are actionable per se.” Penner v. Elliott,

225 N.C. 33, 34, 33 S.E.2d 124, 125 (1945). “Consequently courts have consistently

refrained from expanding the number or the scope of categories of spoken defamatory

words which are actionable without allegation and proof of damages.” Donovan, 114

N.C. App. at 528, 442 S.E.2d at 575 (citing Hayes v. Smith, 832 P.2d 1022, 1024-25

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(Colo. Ct. App. 1991)). The statements at issue do not fall into any of the three

categories of slander per se established in our caselaw.

Defendant contends, however, that the first category of slander per se is more

expansive than the above-quoted language in Donovan. Specifically, Defendant

points to West v. King’s Dep’t Store, Inc., 321 N.C. 698, 703, 365 S.E.2d 621, 624-25

(1988), for the proposition that slander per se includes “defamatory words which

tended to prejudice [claimant] in his reputation, office, trade business or means of

livelihood or to hold him up to disgrace, ridicule or contempt[.]” (emphasis added)

(citing Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979) and Morrow v. Kings Dep’t

Stores, Inc., 57 N.C. App. 13, 290 S.E.2d 732 (1982), disc. rev. denied, 306 N.C. 385,

294 S.E.2d 210 (1982)). This argument was squarely raised by the appellant in

Donovan and rejected by our Supreme Court.

In Donovan, the appellant relied on the identical italicized portion of West “to

support their argument that the traditional classifications of slander per se were

broadened by the Court.” 114 N.C. App. at 532, 442 S.E.2d at 577. First, the Donovan

Court looked to contemporary decisions from the Court of Appeals that had cited to

or quoted from West and determined none of them “concern themselves, directly or

indirectly, with whether there now exists a judicially created fourth category of

defamatory utterances deemed slander per se—those tending to hold a person up to

‘disgrace, ridicule or contempt.’ ” Id. at 532-33, 442 S.E.2d at 577-78. The Court went

on to determine the portion of West in question was dicta because that language “was

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unnecessary to the court’s holding[.]” Id. at 533, 442 S.E.2d at 578 (citing BLACK’S

LAW DICTIONARY 454 (6th ed. 1990) (“Statements and comments in an opinion

concerning some rule of law or legal proposition not necessarily involved nor essential

to determination of the case in hand are obiter dicta, and lack the force of an

adjudication.”)). Underscoring this point, the Court added “[n]otably absent was any

indication by the [West] Court of its intent to establish a new category of slander per

se,” which was “significant in light of the lack of prior case authority[.]” Id. Finally,

the Donovan Court noted the cases to which West cited—Presnell, 298 N.C. 715, 260

S.E.2d 611 (1979) and Morrow, 57 N.C. App. 13, 290 S.E.2d 732 (1982)—do not

contain the language at issue. Id. at 533-34, 442 S.E.2d at 578. Accordingly, our

Supreme Court rejected the appellant’s argument and declined to disturb the trial

court’s decision.2

We find Donovan persuasive and controlling: the statement in West that

2 Since Donovan, our Courts have overwhelmingly turned toward it and away from West for

guidance on this issue. Of the twenty cases that cite to West since Donovan’s publication, only five cite to West for the contested language. See Smith v. Carolina Coach Co., 120 N.C. App. 106, 461 S.E.2d 362 (1995); White v. Trew, 217 N.C. App. 574, 720 S.E.2d 713 (2011); rFactr, Inc. v. McDowell, 2020 WL 7235101 (N.C. Bus. Ct.); rFactr, Inc. v. McDowell, 2023 WL 576534 (N.C. Bus. Ct.); Hwang v. Carins, 915 S.E.2d 425 (2025). Two of those cases—Smith and White—concern a publication issue. Both rFactr cases actually quote Donovan and note in their citation that the quoted portion of Donovan quotes White, which suggests the Court did not consider the substantive issue in that portion of Donovan. Further, those opinions are not binding authority on this Court. See Estate of Browne v. Thompson, 219 N.C. App. 637, 640, 727 S.E.2d 573, 576 (2012) (noting the North Carolina Business Court “is a special Superior Court, the decisions of which have no precedential value in North Carolina.”), disc. rev. denied, 366 N.C. 426, 736 S.E.2d 495 (2013). The final case citing to West is the concurrence in Hwang, which quotes the contested portion of West, but goes on to conclude the plaintiff had a colorable claim for slander per se because the plaintiff’s livelihood was negatively impacted. 915 S.E.2d at 434.

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slander per se may include statements which “hold [a claimant] up to disgrace,

ridicule or contempt” is dicta and, therefore, is disregarded. This leaves us with the

three traditional, well-established categories of slander per se. Plaintiff’s statements

do not fit in any of them; thus, even were our caselaw not clear that calling another

dishonest is not actionable as slander per se, we would reach the same conclusion

here. Thus, Defendant did not establish a prima facie case for libel per se or slander

per se. Therefore, the trial court did not err in dismissing Defendant’s claims.

C. Slander Per Quod

Defendant also argues the trial court erred in granting Plaintiff’s Motion for

Directed Verdict or JNOV on her claim for slander per quod. In contrast to slander

per se, “[s]lander per quod relates to false remarks which may ‘sustain an action only

when causing some special damages (per quod), in which case both the malice and

the special damage must be alleged and proved.’ ” Izydore, 242 N.C. App. at 445, 775

S.E.2d at 349 (quoting Beane v. Weiman Co., 5 N.C. App. 276, 277, 168 S.E.2d 236,

237 (1969)). “This latter class comprises a remark which is not defamatory on its face

but causes injury with ‘extrinsic, explanatory facts.’ ” Id. (quoting Donovan, 114 N.C.

App. at 527, 442 S.E.2d at 574-75). “To prevail on a slander per quod claim, ‘the

injurious character of the words and some special damage must be pleaded and

proved.’ ” Id. (quoting Beane, 5 N.C. App. at 278, 168 S.E.2d at 238).

It is axiomatic that a single statement, if defamatory, must be either libel or

slander, depending on whether it was oral or written—but it cannot be both

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simultaneously. See Tallent, 57 N.C. App. at 251, 291 S.E.2d at 338 (“In general, libel

is written while slander is oral.” (citation omitted)). A statement made in one format

may be repeated in another and thus give rise to claims for both torts, but this would

require two separate transactions. See id. at 251-52, 291 S.E.2d at 338 (“[A]n

interview given to a newspaper reporter may support an action for libel as well as

slander. The speaking of defamatory words to a newspaper reporter will support an

action for slander. However, the speaking of such words to a reporter will also

support an action for libel if the speaker intends that his words be embodied forthwith

in a physical form and the words are subsequently so embodied.” (citation omitted)).

Thus, it appears the trial court’s decision to submit only the charge of libel per quod

to the jury is consistent with the law in categorizing the statements in Plaintiff’s

emails as written rather than oral and served to limit the confusion of the jury.

Even assuming arguendo that directed verdict in Plaintiff’s favor on the claim

of slander per quod was error, any error would be harmless because the damages

alleged for each claim were the same—the cost of Defendant’s therapy, her mental

anguish, etc. See N.C.R. Civ. P. Rule 61 (2023) (“[N]o error or defect in any ruling or

order or in anything done or omitted by any of the parties is ground for granting a

new trial or for setting aside a verdict or for vacating, modifying, or otherwise

disturbing a judgment or order, unless refusal to take such action amounts to the

denial of a substantial right.”). Moreover, because Defendant’s claims for libel per

quod and slander per quod stem from the same statements, even had the jury found

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for Defendant on both claims, Defendant would have had to choose which would be

the basis for her recovery under the doctrine of election of remedies. “The purpose of

the doctrine of election of remedies is not to prevent recourse to any remedy, but to

prevent double redress for a single wrong.” Smith v. Gulf Oil Corp., 239 N.C. 360,79

S.E.2d 880, 885 (1954).

Thus, even if the trial court’s grant of directed verdict on Defendant’s claim for

slander per quod was erroneous, Defendant has not established any error prejudiced

her or otherwise amounted to the “denial of a substantial right.” N.C.R. Civ. P. Rule

61 (2023). Therefore, any error as to this claim was harmless error.

D. Intentional Infliction of Emotional Distress

Defendant argues the trial court erred by granting Plaintiff’s Motion for

Directed Verdict or JNOV on her claim for IIED.

Defendant’s Notice of Cross-Appeal, however, stated Defendant “hereby gives

notice of her cross-appeal to the North Carolina Court of Appeals from the oral order

on the record of the Honorable R. Stuart Albright . . . which granted directed verdict

to Plaintiff/Counterclaim Defendant, Donald Deloy, as to Lekowski’s counterclaims

for Libel per se, Slander per se, and Slander per quod.” Defendant’s Cross Notice of

Appeal, thus, did not include any reference to appeal from the grant of directed

verdict for Plaintiff on her claim for IIED. Rule 3(d) of the North Carolina Rules of

Appellate procedure provides a notice of appeal “shall designate the judgment or

order from which appeal is taken[.]” N.C.R. App. P. 3(d) (2025). “Rule 3 is

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jurisdictional, and if the requirements of the rule are not complied with, the appeal

must be dismissed.” Foreman v. Sholl, 113 N.C. App. 282, 291, 439 S.E.2d 169, 175

(1994) (citation omitted). “[T]he appellant must appeal from each part of the

judgment or order appealed from which appellant desires the appellate court to

consider[.]” Smith v. Indep. Life Ins. Co., 43 N.C. App. 269, 272, 258 S.E.2d 864, 866

(1979).

For example, in Rite Color Chem. Co. v. Velvet Textile Co., the trial court

entered an order determining the contract at issue in the case was not unconscionable

and entered a directed verdict for the plaintiff on the defendant’s counterclaim for

unfair and deceptive trade practices. 105 N.C. App. 14, 16, 411 S.E.2d 645, 646

(1992). The defendant filed for leave to amend its answer and counterclaim, which

was denied by a written order. Id. at 15, 411 S.E.2d at 646. Because the defendant’s

notice of appeal identified only the issues of unconscionability and unfair and

deceptive trade practices, we held we were without jurisdiction to review the denial

of the motion to amend. Id. at 17, 411 S.E.2d at 647.

It is unclear from our caselaw whether the trial court’s simultaneous oral

resolution of multiple causes of action constitutes a single order or multiple orders

for the purposes of Rule 3(d), such that an appellant must identify each individual

ruling made by the trial court in their notice of appeal. We have stated: “As a general

rule, the appellate court obtains jurisdiction only over the rulings specifically

designated in the notice of appeal as the ones from which the appeal is being taken.”

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Chee v. Estes, 117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994) (emphasis added).

However, Chee and other opinions using this language do not rely on that distinction,

as they address separate orders. Id. (no jurisdiction over motion for new trial when

notice of appeal designates only trial judgment); Ochsner v. N.C. Dep’t of Revenue,

268 N.C. App. 391, 399, 835 S.E.2d 491, 497 (2019) (notice designating final order of

trial court did not confer jurisdiction to review grant of protective order). “Language

in an opinion not necessary to the decision is obiter dictum and later decisions are not

bound thereby.” Trs. of Rowan Tech. College v. J. Hyatt Hammond Assocs., Inc., 313

N.C. 230, 242, 328 S.E.2d 274, 281 (1985). As noted above, we have also stated that

“the appellant must appeal from each part of the judgment or order appealed from

which appellate desires the appellate court consider in order for the appellate court

to be vested with jurisdiction to determine such matters.” Smith, 43 N.C. App. at

272, 258 S.E.2d at 866 (citing N.C. R. App. P. Rule 3(d)). However, in Smith we held

the appellant was not required to notice the portion of the trial court’s order ruling

on the defendant’s motion to dismiss because the notice of appeal identified the trial

court’s summary judgment ruling, which the motion to dismiss had merged with

under Rule 12(b)(6). Id. Our caselaw does not appear to resolve the question of

whether Defendant is limited to appealing only those claims identified in the Notice

of Appeal or may raise arguments related to the claim simultaneously resolved by the

trial court in its oral ruling.

Assuming we have jurisdiction to review this issue, the trial court did not err

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in granting directed verdict on Defendant’s counterclaim for Intentional Infliction of

Emotional Distress.

“The essential elements of an action for [IIED] are 1) extreme and outrageous

conduct by the defendant, 2) which is intended to cause and does in fact cause 3)

severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27

(1992) (citation and quotation marks omitted). We address the first and third

elements of the claim.

Defendant has failed to produce evidence showing Plaintiff’s conduct was

extreme and outrageous. “The liability clearly does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities. . . .

[P]laintiffs 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.” Chidnese v. Chidnese, 210 N.C. App. 299, 316, 708 S.E.2d 725, 738

(2011) (quoting Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311 (1985)

(citation omitted)). “Conduct 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.” Id.

(citing Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 373, 618

S.E.2d 867, 872 (2005)). “[T]his Court has set a high threshold for a finding that

conduct meets the standard” of extreme and outrageous conduct. Dobson v. Harris,

134 N.C. App. 573, 578, 521 S.E.2d 710, 715 (1999), rev’d on other grounds, 352 N.C.

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77, 530 S.E.2d 829 (2000). “The determination whether conduct rises to the level of

extreme and outrageous behavior is a question of law.” Foster v. Crandell, 181 N.C.

App. 152, 168, 638 S.E.2d 526, 537 (2007). Id. As above, we review questions of law

de novo. Stark, 365 N.C. at 480, 723 S.E.2d at 158.

In her briefing to this Court, Defendant identifies “telling third parties that a

woman lied about being sexually assaulted and raped as a child” as the conduct at

issue. Defendant initially opened this topic of conversation by accusing Plaintiff, who

denied the allegations. Even assuming Plaintiff’s denial was untrue, we have held

similar misrepresentations as failing to constitute extreme and outrageous conduct.

See, e.g., Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d 710, 715 (1999), rev’d

on other grounds, 352 N.C. 77, 530 S.E.2d 829 (2000) (holding falsely reporting child

abuse does not constitute extreme and outrageous conduct).

Defendant has identified no authority tending to show Plaintiff’s conduct was

extreme or outrageous. We cannot hold Plaintiff’s denial of allegations that he

committed sexual assault as a child to be so outrageous as to go “beyond all possible

bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized

community.” Chidnese at 316, 708 S.E.2d at 738.

Defendant has also not provided evidence she experienced severe emotional

distress. Severe emotional distress is “any emotional or mental disorder, such as . . .

neurosis, psychosis, chronic depression, phobia, or any other type of severe and

disabling emotional or mental condition which may be generally recognized and

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diagnosed by professionals trained to do so.” Johnson v. Ruark Obstetrics &

Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). “It is only where

[emotional distress] is extreme that the liability arises: the distress inflicted must be

“so severe that no reasonable man could be expected to endure it.” Waddle, 331 N.C.

at 84, 414 S.E.2d at 27-28 (citing Restatement (Second) of Torts § 46 comt. j (1965)).

The evidence Defendant identifies as showing severe emotional distress is her

own testimony that she sought counseling from her minister and mental health

professionals. While she also identifies on appeal her testimony that she experienced

“nightmares, sleepless nights, trauma, depression, and psychological issues,” this

evidence appears to have been excluded by the trial court. She presented no evidence

of a medical diagnosis, and no mental health professional testified at trial.

We note that, although the definition of severe emotional distress is rooted in

diagnosable conditions, an actual diagnosis by medical professionals is not always

required or necessary. Soderland v. Kuch 143 N.C. App. 361, 371, 546 S.E.2d 632,

639 (2001). See also Coffman v. Roberson, 153 N.C. Ap. 618, 627-28, 571 S.E.2d 255,

261 (2002) (“[P]roof of severe emotional distress does not require medical expert

testimony.”).

However, we have previously held evidence similar to Defendant’s to be

insufficient to support a finding of severe emotional distress. We have affirmed the

trial court’s grant of summary judgment on IIED when the plaintiff produced as

evidence of emotional distress only her own statement that she suffered from

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nightmares, was afraid of the dark, and suffered stress-related illness. Johnson v.

Scott, 137 N.C. App. 534, 539, 528 S.E.2d 402, 405 (2000). We held similarly when

the only evidence offered by the plaintiffs was “their testimony stating they suffer

from chronic depression.” Williams v. HomEq Servicing Corp., 184 N.C. App. 413,

419, 646 S.E.2d 381, 385 (2007). These uncorroborated statements were insufficient

to support an IIED claim in that the plaintiffs had “fail[ed] to produce any real

evidence of severe emotional distress.” Pacheco v. Rogers & Breece, Inc., 157 N.C.

App. 445, 450, 579 S.E.2d 505, 508 (2003). Compare Coffman, 153 N.C. App. at 628,

571 S.E.2d at 261 (holding plaintiff had presented sufficient evidence of severe

emotional distress when testimony was corroborated by that of “her friends, her

family, and her pastor.”).

Defendant likewise has presented only uncorroborated testimony that she

sought counseling. Because she has offered no real evidence of severe emotional

distress, the trial court did not err in granting Plaintiff’s motion for directed verdict

on Defendant’s IIED claim.

II. Special Damages

As an initial matter, Defendant contends Plaintiff’s challenge to the award of

special damages was not preserved for our review because Plaintiff failed to object to

the jury instruction on special damages. We disagree.

Under our Rules of Appellate Procedure, “A party may not make any portion

of the jury charge or omission therefrom the basis of an issue presented on appeal

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unless the party objects thereto before the jury retires to consider its verdict, stating

distinctly that to which objection is made and the grounds of the objection[.]” N.C.R.

App. P. 10(a)(2) (2025). While Defendant accurately notes Plaintiff did not object to

the jury instructions, the basis of Plaintiff’s appeal is not the instructions but rather

the amount of damages awarded. Indeed, Plaintiff’s complaint is the trial court’s

decision not to reduce the special damages award because, in his view, the award did

not conform with the evidence. Plaintiff could not have objected to the damages

award prior to the jury’s verdict. Only once the jury announced its award and the

trial court entered Judgment accordingly could Plaintiff have sought to reduce the

damages amount, which he did by filing a Motion for New Trial Pursuant to Rule 59.

In that Motion, Plaintiff expressly argued, as here, that the damages award was

excessive in light of the evidence presented. The trial court denied that Motion, and

Plaintiff timely filed Notice of Appeal from that Order. Thus, Plaintiff’s challenge is

preserved for our review.

As above, because Plaintiff’s challenge stems from the denial of his Motions for

Directed Verdict and JNOV, “the proper inquiry . . . is whether the evidence was

sufficient to go to the jury.” Brennan Station 1671, LP v. Borovsky, 262 N.C. App. 1,

6, 821 S.E.2d 640, 644-45 (2018) (citation and quotation marks omitted). Again, “[t]he

hurdle is high for the moving party as the motion should be denied if there is more

than a scintilla of evidence to support the [nonmovant’s] prima facie case.” Id. at 6,

821 S.E.2d at 645 (citation omitted).

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“In publications which are libelous per quod . . . special damages must be

alleged and proved.” Renwick, 310 N.C. at 316, 312 S.E.2d at 408 (quoting Flake v.

Greensboro News Co., 212 N.C. 780, 785, 195 S.E. 55, 59 (1938)). This Court has

distinguished special damages and general damages:

General damages are the natural and necessary result of the wrong, are implied by law, and may be recovered under a general allegation of damages. But special damages, those which do not necessarily result from the wrong, must be pleaded, and the facts giving rise to the special damages must be alleged so as to fairly inform the defendant of the scope of [claimant]’s demand.

Rodd v. W.H. King Drug Co., 30 N.C. App. 564, 568, 228 S.E.2d 35, 38 (1976).

“In the context of an action for defamation, special damage means pecuniary

loss; emotional distress and mental suffering are not alone sufficient[.]” Donovan,

114 N.C. App. at 527, 442 S.E.2d at 575 (citation omitted). Still, “[s]pecial damages

include illness sufficient to require medical care and expense.” Tallent, 57 N.C. App.

at 255, 291 S.E.2d at 341. Plaintiff contends these holdings are contradictory. We

disagree.

Donovan articulates that emotional or mental suffering, standing alone, is

insufficient to support special damages. Our caselaw, however, reflects our Courts

have consistently concluded healthcare, supported by evidence of the expense

incurred for such care, constitutes special damages. See, e.g., Bell, 247 N.C. at 493,

101 S.E.2d at 387 (“It is noted that plaintiff both alleged and offered evidence tending

to show that she had suffered special damages, to wit, illness sufficient to require

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medical and hospital care and expense.”); Tallent, 57 N.C. App. at 255, 291 S.E.2d at

341 (“Special damages include illness sufficient to require medical care and

expense.”); Lippard v. Holleman, 271 N.C. App. 401, 450-51, 844 S.E.2d 591, 624

(2020) (McGee, J., dissenting in part) (noting emotional and mental suffering alone

are insufficient to establish special damages, but “[o]f course, some pecuniary

damages may stem from mental anguish and humiliation, such as the cost of

psychological treatment attributable to the defamatory statement.” (citations

omitted)). Although the Court in Tallent observed illness requiring medical care or

expenses can support special damages, in that case the Court concluded the plaintiff

had failed to show special damages because he had not provided any evidence of

damages prior to the date of her complaint “and fail[ed] to show the amount of any

medical expenses incurred thereafter.” Id.

Plaintiff’s argument on this issue is not novel. Indeed, a federal district court

has already considered this argument and determined North Carolina law recognizes

special damages include expenses related to emotional or mental harms stemming

from libelous or defamatory statements. Araya v. Deep Dive Media, LLC, 966

F.Supp.2d 582, 599-600 (2013). Although Araya is not controlling authority on this

Court, we find it persuasive.

In Araya, the court considered a case in which the plaintiff alleged special

damages “including but not limited to the cost of treatment and counseling for

psychological damages stemming from the ridicule, contempt, public scorn, disgrace,

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and humiliation, which arose as a result of [Defendant]’s publication.” Id. at 599.

The defendant in that case asserted damages arising from emotional distress and

mental suffering do not constitute pecuniary loss, relying principally on Johnson v.

Bollinger, 86 N.C. App. 1, 356 S.E.2d 378 (1987); Moore v. Cox, 341 F.Supp.2d 570

(2004); and Williams v. Rutherford Freight Lines, Inc., 10 N.C. App. 384, 179 S.E.2d

319 (1971). Id. However, the Araya court concluded “[i]n all three of these cases,

though, the court goes only so far as to posit that allegations of emotional distress

and mental suffering, by themselves, do not evidence pecuniary loss.” Id. (emphasis

in original). Our review of these cases leads us to the same conclusion.

In Johnson, this Court held “[e]motional distress and mental suffering are not

sufficient allegations to establish a basis for relief in cases which are only actionable

per quod.” 86 N.C. App. at 11, 356 S.E.2d at 384-85. There, the plaintiff alleged

“ridicule, humiliation, public contempt, loss of reputation, damage to his trade or

business, and loss of business income, all to the plaintiff’s damage in the sum of

$20,000.” Id. at 11, 356 S.E.2d at 385. The Court determined “[o]f these allegations,

only the purported business damages and loss of business income constitute the

pecuniary losses necessary for special damages arising from defamation.” Id.

Similarly, in Moore, the court noted “[t]o prove special damages from defamation, a

plaintiff’s allegations must evidence a pecuniary loss rather than simple

humiliation.” 341 F.Supp.2d at 574. Finally, in Williams, this Court stated: “It is

clear that many of the damages alleged in the later pleadings are not ‘special’ within

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the meaning of that term as used in the law of defamation, in that emotional distress

and mental suffering are not alone sufficient to establish a basis for relief in cases

which are actionable only Per quod.” 10 N.C. App. at 390, 179 S.E.2d at 324.

None of these cases dealt with allegations of pecuniary loss stemming from

mental anguish or emotional distress, as is the case here. Indeed, each of the

aforementioned cases by their own terms cabin those holdings to “simple humiliation”

or “ridicule” and the like “alone.” These are meaningfully distinct from costs and

losses arising from such distress and ridicule. Such losses are readily understood as

medical expenses, which our caselaw affirms can constitute special damages. See

Tallent, 57 N.C. App. at 255, 291 S.E.2d at 340-41 (special damages awarded where

the plaintiff “testified she suffered worry, loss of sleep, and emotional problems that

led her to go to the doctor.”); Bell, 247 N.C. at 493, 101 S.E.2d at 387 (affirming special

damages award where the plaintiff “offered evidence tending to show that she had

suffered special damages, to wit, illness sufficient to require medical and hospital

care and expense.”). Likewise, in this case, Defendant testified Plaintiff’s statements

caused her mental anguish and emotional distress that led her to need mental health

treatment. She also testified to the actual costs associated with those services. Under

our caselaw, this is sufficient—more than a scintilla of evidence—to submit the issue

of special damages to the jury.

Plaintiff argues, without support, that Defendant failed to establish special

damages because she did not introduce evidence of a medical diagnosis. We know of

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no case that so holds. Rather, special damages require only a showing of “pecuniary

loss.” See Williams, 10 N.C. App. at 387, 179 S.E.2d at 322 (“Special damage, as that

term is used in the law of defamation, means pecuniary loss, as distinguished from

humiliation.”). Again, we will not create a requirement for special damages where

none clearly exists.

Plaintiff also contends Defendant failed to show his defamatory statements

proximately caused Defendant’s special damages. “Proximate cause is ordinarily a

question of fact for the jury, to be solved by the exercise of good common sense in the

consideration of the evidence of each particular case.” Estate of Long v. Fowler, 378

N.C. 138, 150, 861 S.E.2d 686, 696 (2021) (quoting McAllister v. Khie Sem Ha, 347

N.C. 638, 645, 496 S.E.2d 577, 582 (1998)). Here, Defendant testified she sought

mental health services from Nesbit after May 2021 to help her “deal[ ] with the fact

that my brother’s calling me a liar and the fact that all of this has bubbled up and

surfaced.” (emphasis added) Further, she testified she felt she needed mental health

treatment because Plaintiff “is attacking me. He’s viciously telling me I’m a liar. He’s

telling everybody I’ve gone crazy. And so I needed more help.” This testimony points

to Plaintiff’s statements as at least one cause of Defendant’s emotional suffering and

consequent need for mental health services. Thus, Defendant presented more than a

scintilla of evidence that Plaintiff’s statements proximately caused her special

damages.

Finally, Plaintiff argues the maximum amount of compensatory damages the

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jury was entitled to award was $17,000.00—the amount Defendant testified she had

incurred seeing various mental health providers. Here, the jury was correctly

instructed “Actual damages means fair compensation to any actual loss, hurt, or

harm resulting from the defamation including pecuniary damages and actual harm

damages.” The trial court further explained: “You may award pecuniary damages to

the extent you find the defendant has suffered such tangible monetary losses. . . . .

Actual harm damages include such things as impairment of reputation and standing

in the community, personal humiliation, and mental anguish and suffering. You may

award such actual harm damages to the extent you find the defendant has suffered

such actual injury.” This is consistent with our caselaw, as this Court has noted: “For

a defamation claim, ‘compensatory damages include (1) pecuniary loss direct or

indirect, i.e., special damages; (2) damages for physical pain and inconvenience; (3)

damages for mental suffering; and (4) damages for injury to reputation.’ ” Hien

Nguyen v. Taylor, 219 N.C. App. 1, 10, 723 S.E.2d 551, 559 (2012) (quoting Roth v.

Greensboro News Co., 217 N.C. 13, 23, 6 S.E.2d 882, 889 (1940)). See also Hawkins

v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 474-75 (1991) (“We define actual

damage to mean some actual loss, hurt or harm resulting from the illegal invasion of

a legal right.”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 3012,

41 L. Ed. 2d 789 (1974) (“[A]ctual injury is not limited to out-of-pocket loss. Indeed,

the more customary types of actual harm inflicted by defamatory falsehood include

impairment of reputation and standing in the community, personal humiliation, and

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mental anguish and suffering.”).

Here, although Defendant’s testimony supports only $17,000.00 in pecuniary

loss, the jury was entitled to compensate Defendant for actual harm damages beyond

the specific costs she incurred. Further, Defendant’s testimony supports actual harm

damages. She testified to ongoing mental anguish, nightmares, and impairment of

her relationships. Thus, the jury was not limited to awarding Defendant $17,000.00

in compensatory damages.3

Conclusion

Accordingly, for the foregoing reasons, we conclude there was no error in the

trial and affirm the Judgment and Orders.

AFFIRMED.

Chief Judge DILLON and Judge ARROWOOD concur.

Report per Rule 30(e).

3 Because we conclude the trial court did not err in denying Plaintiff’s Motions for Directed

Verdict and for JNOV, we need not address his remaining argument on attorney fees and court costs.

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