IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-843
No. COA22-455
Filed 20 December 2022
Orange County, No. 21 CVS 22
STERGIOS MOSCHOS
v.
SUSAN MOSCHOS
Appeal by Plaintiff from order entered 11 January 2022 by Judge Richard
Allen Baddour, Jr., in Orange County Superior Court. Heard in the Court of Appeals
16 November 2022.
Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for Plaintiff-Appellant.
Coleman, Gledhill, Hargrave, Merritt, & Rainsford, P.C., by James Rainford, for Defendant-Appellee.
COLLINS, Judge.
¶1 Plaintiff Stergios Moschos appeals from the trial court’s order dismissing his
claims against Defendant Susan Moschos for breach of fiduciary duty, fraud, and
misappropriation of marital assets under Rules of Civil Procedure 12(b)(1) and
12(b)(6), and his claim for intentional infliction of emotional distress under Rule
12(b)(6). Plaintiff has abandoned his argument that the trial court erred by
dismissing his claims under Rule 12(b)(1), and the trial court did not err by granting MOSCHOS V. MOSCHOS
Opinion of the Court
Defendant’s motion to dismiss Plaintiff’s intentional infliction of emotion distress
claim under Rule 12(b)(6). Accordingly, we affirm the trial court’s order.
I. Procedural History and Factual Background
¶2 Soon after Plaintiff and Defendant were married in 2006, they opened a joint
bank account and agreed that Defendant would pay the parties’ expenses from the
joint account. The parties began depositing their employment income into the joint
account, and Defendant paid the couple’s expenses from the account. In May 2016,
after accepting a new job, Defendant opened and began depositing her paychecks into
a separate bank account. At the time of separation, the bank account had a balance
of $60,262.
¶3 In the fall of 2018, after Defendant continuously expressed dissatisfaction in
their marriage, Plaintiff proposed they rehabilitate their marriage by starting new
careers in a warmer location. In early 2019, Plaintiff accepted a job interview in
Tampa, Florida, and he was invited for a second round of interviews scheduled for 30
April 2019.
¶4 On 22 April 2019, Defendant texted Plaintiff, “I am very sorry but our marriage
is not working for me any longer. I am moving out. I left you a letter. . . .” Defendant
left a one-page typed letter, which stated in part:
I do NOT want to fight with you. We can smoothly separate if we are both reasonable. I would be fine with splitting our savings and if you are respectful toward me (e.g. not MOSCHOS V. MOSCHOS
screaming, swearing, name calling), I will not ask for alimony or half your retirement. Condo in Boston is totally yours. I see no need to get attorneys – we can both be respectful and peaceful, even if we are both hurting. . . . I will file separation paperwork, and, in a year, we can divorce. North Carolina is a no-fault state, so we really don’t need to go to court (it would only end in my benefit). I will get the accounts changed so I won’t have access to your paycheck. I will continue to get mail but leave yours in the box until my address is changed. .... I have considered this at length, for a long time and honestly don’t believe we can be a loving couple again. I thank you for the many good years we had together. . . .
¶5 The parties agreed that Defendant would relinquish control of their joint
account into which Plaintiff had deposited his income during their 13 years of
marriage. Before relinquishing control of the account, Defendant withdrew $55,000
one month prior to their separation; paid a deposit for a new apartment the day after
she left him; and withdrew approximately $6,690 to lower the balance remaining on
her student loan. When Plaintiff discovered that Defendant had withdrawn $55,000
from their joint account,
he texted to her his frustration and remorse that he had trusted her with managing the financial accounts. She texted him back: “Do you know how lucky you are in [my] not getting alimony and half you(sic) retirement. No more comments about finances.” When he texted her, “Yes, I am lucky that you are reasonable,” she responded, “All good.”
On 27 April 2019, Defendant texted Plaintiff that she would complete the separation MOSCHOS V. MOSCHOS
agreement which would memorialize her promise not to pursue him for alimony and
half his retirement. Several days later, Defendant texted Plaintiff and said,
So, bad news. My attorney said I’m stupid not to take a settlement, especially since I followed your career. I’m willing to be fair and still don’t want alimony. Do you want me to draw up a proposal or would you like to have your attorney do so?
When Plaintiff responded that he would like to draw up a proposal consistent with
her previous promise not to pursue him for alimony and half his retirement, she
responded:
F**k off, dude. You’re getting off easy and you have plenty of earning potential. This can be cheap and easy or long and expensive. I didn’t realize how foolish I was being until everybody told me so I have absolutely every right to alimony as well so you’re better off just to suck it up and move on. You have 500k in retirement. I’ll take 300k if we go to a mediator, write it up, and settle fast.
Defendant filed an action for absolute divorce a year after their separation, which
was granted. Defendant also filed an action for equitable distribution, seeking over
half of Plaintiff’s retirement assets.
¶6 On 8 January 2021, Plaintiff sued for breach of fiduciary duty, fraud,
defamation, intentional infliction of emotional distress, and misappropriation of
marital funds. Defendant moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6)
of the Rules of Civil Procedure. Plaintiff later voluntarily dismissed his defamation
claim. After a hearing, the trial court granted Defendant’s motions to dismiss the MOSCHOS V. MOSCHOS
remaining claims.
II. Discussion
¶7 Plaintiff asserts that “[t]he trial court erred in granting Defendant’s motions
to dismiss the complaint” and recites the applicable standard of review of an order
granting a motion to dismiss under Rules 12(b)(1) and 12(b)(6). However, Plaintiff
states no reason or argument, and cites no legal authority, in support of his assertion
that the trial court erred by dismissing the breach of fiduciary duty, fraud, and
misappropriation of marital funds claims under Rule 12(b)(1). Accordingly, any
challenge to the trial court’s dismissal of those claims under Rule 12(b)(1) is deemed
abandoned. See N.C. R. App. P. 28(a) (2022); N.C. R. App. P. 28(b)(6) (2022). The
trial court’s order dismissing the breach of fiduciary duty, fraud, and
misappropriation of marital funds claims under Rule 12(b)(1) is thus affirmed, and
we need not address Plaintiff’s argument that the trial court erred by dismissing
those claims under Rule 12(b)(6).
¶8 As the trial court did not dismiss the intentional infliction of emotional distress
claim under Rule 12(b)(1), we address Plaintiff’s argument that the trial court erred
by dismissing that claim under Rule 12(b)(6).
¶9 In ruling on a motion to dismiss for failure to state a claim, the allegations of
fact are taken as true. Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d
166, 168 (1992). Dismissal is proper when (1) the complaint on its face reveals that MOSCHOS V. MOSCHOS
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IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-843
No. COA22-455
Filed 20 December 2022
Orange County, No. 21 CVS 22
STERGIOS MOSCHOS
v.
SUSAN MOSCHOS
Appeal by Plaintiff from order entered 11 January 2022 by Judge Richard
Allen Baddour, Jr., in Orange County Superior Court. Heard in the Court of Appeals
16 November 2022.
Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for Plaintiff-Appellant.
Coleman, Gledhill, Hargrave, Merritt, & Rainsford, P.C., by James Rainford, for Defendant-Appellee.
COLLINS, Judge.
¶1 Plaintiff Stergios Moschos appeals from the trial court’s order dismissing his
claims against Defendant Susan Moschos for breach of fiduciary duty, fraud, and
misappropriation of marital assets under Rules of Civil Procedure 12(b)(1) and
12(b)(6), and his claim for intentional infliction of emotional distress under Rule
12(b)(6). Plaintiff has abandoned his argument that the trial court erred by
dismissing his claims under Rule 12(b)(1), and the trial court did not err by granting MOSCHOS V. MOSCHOS
Opinion of the Court
Defendant’s motion to dismiss Plaintiff’s intentional infliction of emotion distress
claim under Rule 12(b)(6). Accordingly, we affirm the trial court’s order.
I. Procedural History and Factual Background
¶2 Soon after Plaintiff and Defendant were married in 2006, they opened a joint
bank account and agreed that Defendant would pay the parties’ expenses from the
joint account. The parties began depositing their employment income into the joint
account, and Defendant paid the couple’s expenses from the account. In May 2016,
after accepting a new job, Defendant opened and began depositing her paychecks into
a separate bank account. At the time of separation, the bank account had a balance
of $60,262.
¶3 In the fall of 2018, after Defendant continuously expressed dissatisfaction in
their marriage, Plaintiff proposed they rehabilitate their marriage by starting new
careers in a warmer location. In early 2019, Plaintiff accepted a job interview in
Tampa, Florida, and he was invited for a second round of interviews scheduled for 30
April 2019.
¶4 On 22 April 2019, Defendant texted Plaintiff, “I am very sorry but our marriage
is not working for me any longer. I am moving out. I left you a letter. . . .” Defendant
left a one-page typed letter, which stated in part:
I do NOT want to fight with you. We can smoothly separate if we are both reasonable. I would be fine with splitting our savings and if you are respectful toward me (e.g. not MOSCHOS V. MOSCHOS
screaming, swearing, name calling), I will not ask for alimony or half your retirement. Condo in Boston is totally yours. I see no need to get attorneys – we can both be respectful and peaceful, even if we are both hurting. . . . I will file separation paperwork, and, in a year, we can divorce. North Carolina is a no-fault state, so we really don’t need to go to court (it would only end in my benefit). I will get the accounts changed so I won’t have access to your paycheck. I will continue to get mail but leave yours in the box until my address is changed. .... I have considered this at length, for a long time and honestly don’t believe we can be a loving couple again. I thank you for the many good years we had together. . . .
¶5 The parties agreed that Defendant would relinquish control of their joint
account into which Plaintiff had deposited his income during their 13 years of
marriage. Before relinquishing control of the account, Defendant withdrew $55,000
one month prior to their separation; paid a deposit for a new apartment the day after
she left him; and withdrew approximately $6,690 to lower the balance remaining on
her student loan. When Plaintiff discovered that Defendant had withdrawn $55,000
from their joint account,
he texted to her his frustration and remorse that he had trusted her with managing the financial accounts. She texted him back: “Do you know how lucky you are in [my] not getting alimony and half you(sic) retirement. No more comments about finances.” When he texted her, “Yes, I am lucky that you are reasonable,” she responded, “All good.”
On 27 April 2019, Defendant texted Plaintiff that she would complete the separation MOSCHOS V. MOSCHOS
agreement which would memorialize her promise not to pursue him for alimony and
half his retirement. Several days later, Defendant texted Plaintiff and said,
So, bad news. My attorney said I’m stupid not to take a settlement, especially since I followed your career. I’m willing to be fair and still don’t want alimony. Do you want me to draw up a proposal or would you like to have your attorney do so?
When Plaintiff responded that he would like to draw up a proposal consistent with
her previous promise not to pursue him for alimony and half his retirement, she
responded:
F**k off, dude. You’re getting off easy and you have plenty of earning potential. This can be cheap and easy or long and expensive. I didn’t realize how foolish I was being until everybody told me so I have absolutely every right to alimony as well so you’re better off just to suck it up and move on. You have 500k in retirement. I’ll take 300k if we go to a mediator, write it up, and settle fast.
Defendant filed an action for absolute divorce a year after their separation, which
was granted. Defendant also filed an action for equitable distribution, seeking over
half of Plaintiff’s retirement assets.
¶6 On 8 January 2021, Plaintiff sued for breach of fiduciary duty, fraud,
defamation, intentional infliction of emotional distress, and misappropriation of
marital funds. Defendant moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6)
of the Rules of Civil Procedure. Plaintiff later voluntarily dismissed his defamation
claim. After a hearing, the trial court granted Defendant’s motions to dismiss the MOSCHOS V. MOSCHOS
remaining claims.
II. Discussion
¶7 Plaintiff asserts that “[t]he trial court erred in granting Defendant’s motions
to dismiss the complaint” and recites the applicable standard of review of an order
granting a motion to dismiss under Rules 12(b)(1) and 12(b)(6). However, Plaintiff
states no reason or argument, and cites no legal authority, in support of his assertion
that the trial court erred by dismissing the breach of fiduciary duty, fraud, and
misappropriation of marital funds claims under Rule 12(b)(1). Accordingly, any
challenge to the trial court’s dismissal of those claims under Rule 12(b)(1) is deemed
abandoned. See N.C. R. App. P. 28(a) (2022); N.C. R. App. P. 28(b)(6) (2022). The
trial court’s order dismissing the breach of fiduciary duty, fraud, and
misappropriation of marital funds claims under Rule 12(b)(1) is thus affirmed, and
we need not address Plaintiff’s argument that the trial court erred by dismissing
those claims under Rule 12(b)(6).
¶8 As the trial court did not dismiss the intentional infliction of emotional distress
claim under Rule 12(b)(1), we address Plaintiff’s argument that the trial court erred
by dismissing that claim under Rule 12(b)(6).
¶9 In ruling on a motion to dismiss for failure to state a claim, the allegations of
fact are taken as true. Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d
166, 168 (1992). Dismissal is proper when (1) the complaint on its face reveals that MOSCHOS V. MOSCHOS
no law supports plaintiff’s claim, (2) the complaint reveals on its face that some fact
essential to plaintiff’s claim is missing, and (3) when some fact disclosed in the
complaint defeats the plaintiff’s claim. Schloss Outdoor Advert. Co. v. City of
Charlotte, 50 N.C. App. 150, 152, 272 S.E.2d 920, 922 (1980). We review an order
allowing a motion to dismiss for failure to state a claim upon which relief can be
granted de novo. Halterman v. Halterman, 276 N.C. App. 66, 2021-NCCOA-38, ¶ 10.
¶ 10 “To state a claim for intentional infliction of emotional distress, a plaintiff must
allege: (1) extreme and outrageous conduct (2) which is intended to cause and does
cause (3) severe emotional distress to another.” Clark v. Clark, 280 N.C. App. 403,
2021-NCCOA-653, ¶ 37 (internal quotation marks and citation omitted). “Extreme
and outrageous conduct is defined as conduct that is so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Norton v.
Scotland Mem’l Hosp., Inc., 250 N.C. App. 392, 397, 793 S.E.2d 703, 708 (2016)
(internal quotation marks and citation omitted).
¶ 11 Severe emotional distress has been defined as “any emotional or mental
disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any
other type of severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do so.” Johnson v.
Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Allegations that fail MOSCHOS V. MOSCHOS
to identify a severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do so are not
sufficient. See Pierce v. Atl. Grp., Inc., 219 N.C. App. 19, 32, 724 S.E.2d 568, 577
(2012) (concluding plaintiff’s allegation of “serious on and off the job stress, severely
affecting his relationship with his wife and family members” was insufficient to allege
severe emotional distress in the context of a claim for negligent or intentional
infliction of emotional distress); cf. Zenobile v. McKecuen, 144 N.C. App. 104, 111, 548
S.E.2d 756, 760 (2001) (reversing dismissal of plaintiff’s claim for negligent and
intentional infliction of emotional distress where she alleged extreme emotional
distress consisting of “anxiety disorder, depression, and post-traumatic stress
disorder”). Moreover, without factual allegations regarding the type, manner, or
degree of severe emotional distress a plaintiff claims to have experienced, a plaintiff’s
complaint fails to sufficiently allege severe emotional distress. Cauley v. Bean, 282
N.C. App. 443, 2022-NCCOA-202, ¶¶ 21-22, disc. review denied, 871 S.E.2d 281 (2022)
(affirming dismissal of negligent infliction of emotional distress claim where “[t]he
only allegations in Plaintiff’s complaint regarding her emotional distress are that
Defendant’s actions ‘proximately caused the negligent infliction of emotional distress
of [P]laintiff’ and that ‘[P]laintiff suffered severe emotional distress’”).
¶ 12 Here, Plaintiff alleges that he suffered severe emotional distress from
Defendant’s “sudden abandonment” of him. In support of this contention, Plaintiff MOSCHOS V. MOSCHOS
alleges that he was “stunned[,] . . . utterly distraught[,] . . . and had to undertake
psychological treatment as a result of [Defendant]’s conduct.” These allegations fail
to identify a severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do so, and fail to allege
sufficient facts concerning the type, manner, or degree of severe emotional distress
Plaintiff claims to have experienced. Accordingly, Plaintiff failed to allege that he
suffered severe emotional distress due to Defendant’s conduct. As Plaintiff fails to
allege a necessary element of intentional infliction of emotional distress, this claim
was properly dismissed under Rule 12(b)(6).
III. Conclusion
¶ 13 Plaintiff abandoned any argument that the trial court erred by dismissing the
breach of fiduciary duty, fraud, and misappropriation of marital assets claims under
Rule 12(b)(1). Plaintiff failed to state a claim for intentional infliction of emotional
distress, and the trial court did not err by dismissing that claim under Rule 12(b)(6).
Accordingly, the trial court’s order is affirmed.
AFFIRMED.
Judges DIETZ and MURPHY concur.