              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-351

                               Filed: 16 February 2016

Mecklenburg County, No. 14 CVS 3109

MICHAEL C. PIRO, Plaintiff,

             v.

REBECCA HADDEN MCKEEVER, L.C.S.W.; CYNTHIA L. SAPP, Ph.D.; KAREN
BARRY, M.F.T., LMFT; and DAVIDSON COUNSELING ASSOCIATES, Defendants.


      Appeal by plaintiff from order entered 3 November 2014 by Judge Robert C.

Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 22

September 2015.


      Horack Talley Pharr & Lowndes, P.A., by Christopher T. Hood and Gena
      Graham Morris, for plaintiff-appellant.

      The Epstein Law Firm, PLLC, by Andrew J. Epstein, for defendant-appellee
      Rebecca Hadden McKeever, L.C.S.W.


      BRYANT, Judge.


      Where the allegations in the complaint, taken as true, fail to indicate that

defendant’s conduct was extreme and outrageous or that it was reasonably

foreseeable plaintiff would suffer severe emotional distress, we affirm the trial court’s

dismissal of the complaint seeking relief for intentional infliction of emotional

distress or negligent infliction of emotional distress.

      On 24 February 2014, plaintiff Michael C. Piro filed a complaint in

Mecklenburg County Superior Court seeking relief on the basis of negligent infliction
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                                         Opinion of the Court



of emotional distress, intentional infliction of emotional distress, and punitive

damages.      Plaintiff named as defendants Rebecca Hadden McKeever, L.C.S.W.;

Cynthia L. Sapp, Ph.D.; Karen Barry, M.F.T., LMFT; and Davidson Counseling

Associates. Defendant McKeever is a licensed clinical social worker, defendant Sapp

a licensed clinical psychologist, and defendant Barry a licensed marriage and family

therapist.

      In his complaint, plaintiff asserts that plaintiff and Karen Shapiro Piro

(Shapiro) are the parents of three boys: Allen (then 14 years of age); Noah (then 12

years of age); and Michael (then 4 years of age).1 On 28 June 2006, plaintiff filed a

complaint raising issues of child custody, child support, equitable distribution, and

interim distribution. On 16 November 2007, a custody order was entered awarding

plaintiff and Shapiro joint legal and physical custody of Allen and Noah.2

      In April 2011, plaintiff’s eldest child, Allen, began receiving services from

defendant McKeever. Plaintiff alleges that the day after a 7 April 2011 meeting

between defendant McKeever, Shapiro, and Shapiro’s father, Shapiro contacted the

Mecklenburg County Department of Social Services’ Child Protective Services (DSS)

and alleged that plaintiff had sexually assaulted Noah.                      DSS contacted the

Huntersville Police Department (HPD), and both agencies conducted concurrent




      1   Pseudonyms are used to protect the identities of the minor children.
      2   At that time, Michael had yet to be born.

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                                   Opinion of the Court



investigations into Shapiro’s allegations. On 19 April 2011, HPD concluded that no

probable cause existed to charge plaintiff. DSS likewise found the allegations against

plaintiff to be unsubstantiated, and also closed its investigation.

       In May 2011, defendant McKeever conducted her first and second therapy

sessions with Noah.      Thereafter, Shapiro again contacted DSS and reported

additional allegations of sexual abuse upon Noah by plaintiff. DSS declined to reopen

its investigation into Shapiro’s allegations, but HPD commenced a second

investigation.

       On 9 June 2011, defendant McKeever conducted a forensic interview of Noah,

and thereafter, Noah went to Pat’s Place Child Advocacy Center, where a professional

forensic interviewer sought specific details regarding sexual abuse perpetrated by

plaintiff.

       On 27 June 2011, the Honorable Christy T. Mann entered an order that

granted Shapiro sole custody of the children, directed plaintiff to vacate the marital

residence, and prohibited plaintiff from having any contact with Allen, Noah, and

Michael. Judge Mann’s order that plaintiff have no contact with Allen, Noah, and

Michael remained in effect from June 2011 through November 2013.

       In his complaint, plaintiff alleged that defendant McKeever’s conduct and

interview techniques were in contravention of the American Counseling Association

Code of Ethics, and McKeever should have known that the use of such techniques



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                                   Opinion of the Court



substantially increased the risk of erroneous and unreliable results. Plaintiff alleges

that defendant McKeever was an agent and/or servant of defendant Davidson

Counseling Associates and that defendants Sapp and Barry directly participated in

Noah’s treatment by discussing, consulting, and supervising defendant McKeever’s

care of Noah. Plaintiff also asserts that “DSS, HPD, a court-appointed forensic

custody evaluator, and[,] ultimately[,] the Judge presiding over the Domestic Action

found the allegations of sexual abuse to be unsubstantiated,” although nothing in the

record before this Court supports such a finding by a judge. Plaintiff alleges that he

has suffered severe emotional distress, including mental anguish, depression, stress,

embarrassment, humiliation, concern for his sons, substantial monetary expenses,

and other damages.

      Defendants McKeever, Barry, and Sapp filed individual answers to plaintiff’s

complaint, including a motion to dismiss plaintiff’s claims. Defendant Davidson

Counseling Associates also filed a motion to dismiss. On 2 September, 28 October,

and 3 November 2014, the Honorable Robert C. Ervin, Judge presiding in

Mecklenburg County Superior Court, entered orders granting defendants’ individual

motions to dismiss plaintiff’s complaint with prejudice, pursuant to Rule 12(b)(6). In

pertinent part, the trial court concluded that plaintiff’s complaint failed to allege the

“extreme and outrageous conduct” necessary to recover for intentional infliction of

emotional distress and failed to establish that it was reasonably foreseeable



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                                   Opinion of the Court



defendant McKeever’s conduct would cause plaintiff severe emotional distress as

required to recover for a claim of negligent infliction of emotional distress. Plaintiff

appeals only from the order granting defendant McKeever’s motion to dismiss.

                  _____________________________________________

      On appeal, plaintiff raises the following issues: whether the trial court erred

by concluding (I) that defendant McKeever’s alleged conduct did not meet the

threshold for extreme and outrageous; and (II) that the harm caused by defendant

McKeever was unforeseeable.

                                 Standard of Review

                     A pleading which sets forth a claim for relief,
             whether an original claim, counterclaim, crossclaim, or
             third-party claim shall contain . . . [a] short and plain
             statement of the claim sufficiently particular to give the
             court and the parties notice of the transactions,
             occurrences, or series of transactions or occurrences,
             intended to be proved showing that the pleader is entitled
             to relief[.]

N.C. Gen. Stat. § 1A-1, Rule 8(a)(1) (2013). “Under the ‘notice theory of pleading’ a

complainant must state a claim sufficient to enable the adverse party to understand

the nature of the claim, to answer, and to prepare for trial.” Ipock v. Gilmore, 73 N.C.

App. 182, 188, 326 S.E.2d 271, 276 (1985) (citation omitted) (citing N.C. Gen. Stat. §

1A-1, Rule 8(a)(1) (1983); Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)). “ ‘While

the concept of notice pleading is liberal in nature, a complaint must nonetheless state

enough to give the substantive elements of a legally recognized claim or it may be


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                                   Opinion of the Court



dismissed under Rule 12(b)(6).’ ” Highland Paving Co., LLC v. First Bank, ___ N.C.

App. ___, ___, 742 S.E.2d 287, 293 (2013) (quoting Raritan River Steel Co. v. Cherry,

Bekaert & Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988)).

             Our review of the grant of a motion to dismiss under Rule
             12(b)(6) of the North Carolina Rules of Civil Procedure is
             de novo. We consider whether the allegations of the
             complaint, if treated as true, are sufficient to state a claim
             upon which relief can be granted under some legal theory.

Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013) (citation and

quotations omitted). “ ‘[A] complaint should not be dismissed for insufficiency unless

it appears to a certainty that plaintiff is entitled to no relief under any state of facts

which could be proved in support of the claim.’ ” Acosta v. Bynum, 180 N.C. App. 562,

567, 638 S.E.2d 246, 250 (2006) (quoting Sutton, 277 N.C. at 103, 176 S.E.2d at 166).

                                            I

      Plaintiff argues that the trial court erred in dismissing his claim for intentional

infliction of emotional distress. Plaintiff argues his complaint establishes conduct on

the part of defendant McKeever that a jury could find extreme and outrageous.

Specifically, plaintiff contends that defendant McKeever’s conduct resulted in

accusations that plaintiff sexually assaulted Noah and deprived plaintiff of

companionship with his minor children for three years. We disagree.




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                                  PIRO V MCKEEVER

                                   Opinion of the Court



      The tort of intentional infliction of emotional distress was formally recognized

by our Supreme Court in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979),

as noted in Dickens v. Puryear, 302 N.C. 437, 446–47, 276 S.E.2d 325, 331 (1981).

             This tort imports an act which is done with the intention of
             causing emotional distress or with reckless indifference to
             the likelihood that emotional distress may result. A
             defendant is liable for this tort when he desires to inflict
             severe emotional distress or knows that such distress is
             certain, or substantially certain, to result from his conduct
             or where he acts recklessly in deliberate disregard of a high
             degree of probability that the emotional distress will follow
             and the mental distress does in fact result.

Dickens, 302 N.C. at 449, 276 S.E.2d at 333 (citations, quotations, and ellipsis

omitted). “This tort . . . consists of: (1) extreme and outrageous conduct, (2) which is

intended to cause and does cause (3) severe emotional distress to another.” Id. at 452,

276 S.E.2d at 335.

             [Our Supreme Court has also] stated that the severe
             emotional distress required for [intentional infliction of
             emotional distress] is the same as that required for
             negligent infliction of emotional distress, which is:

                     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.

Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 354–355, 452 S.E.2d 233, 243

(1994) (citing Johnson v. Ruark Obstetrics & Gynecology Assoc., 327 N.C. 283, 304,



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                                  Opinion of the Court



395 S.E.2d 85, 97 (1990)). “Conduct is extreme and outrageous when it exceeds all

bounds usually tolerated by a decent society.” Shreve v. Duke Power Co., 85 N.C. App.

253, 257, 354 S.E.2d 357, 359 (1987) (citation and quotations omitted).

      In his complaint, plaintiff made the following assertions:

             9.    Defendant McKeever is a Licensed Clinical Social
                   Worker. Upon information and belief, Defendant
                   McKeever was at all relevant times licensed to
                   render services in the State of North Carolina under
                   license/certification number C003301.

             ...

             16.   Plaintiff’s oldest son, [Allen], and middle son, [Noah]
                   received services from Defendant McKeever from
                   approximately April, 2011 through September 2013.

             17.   During Defendant McKeever’s treatment of [Allen]
                   and [Noah], Defendant McKeever discussed,
                   consulted with, and sought supervision from
                   Defendant Sapp[, a licensed Clinical Psychologist,]
                   and Defendant Barry[, a licensed Marriage and
                   Family    Therapist,]     regarding    [Defendant
                   McKeever’s] treatment of, at a minimum, [Noah].

             ...

             27.   On or about May 19, 2011, Defendant McKeever met
                   [Noah] for the first time. Defendant McKeever had a
                   therapy session with [Noah] that day.

             28.   On or about May 26, 2011, Defendant McKeever
                   conducted a therapy session with [Noah].

             ...

             32.   On June 9, 2011, Defendant McKeever conducted a


                                         -8-
                    PIRO V MCKEEVER

                    Opinion of the Court



      therapy session with [Noah].

33.   Prior to June 9, 2011, [Noah] never reported to
      defendant McKeever that he had been the victim of
      any sexual abuse perpetrated by Plaintiff.

34.   At that June 9, 2011 therapy session, Defendant
      McKeever engaged in and conducted an interview of
      [Noah].      Defendant McKeever conducted that
      interview in the form of a forensic interview aimed
      at eliciting from [Noah] a report of sexual abuse.

35.   Defendant McKeever knew or should have known
      that she should not have conducted that June 9,
      2011 forensic interview.

...

42.   Defendant McKeever’s conduct and interview of
      [Noah] inappropriately used overly suggestive
      questioning, made over-interpretations, and
      otherwise employed means and methods known or
      that should have been known to produce inaccurate
      and unreliable results. Further, the conduct and
      interview engaged in by Defendant McKeever
      specifically targeted Plaintiff and/or was overly
      suggestive of improper behavior by Plaintiff.
      Defendants’ subsequent conduct exacerbated the
      situation.

...

46.   Defendant McKeever had knowledge of the risks
      attendant to her conduct, including the risks that
      DSS and HPD would investigate and prohibit and/or
      limit Plaintiff’s visitation, that Karen Shapiro would
      seek to limit and/or prohibit custody and visitation
      by Plaintiff, that the relationship between Plaintiff
      and the Boys would be adversely affected, that
      Plaintiff would sustain separation from the Boys,


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                                  Opinion of the Court



                   and that Plaintiff would suffer severe emotional
                   distress and other damages.

             ...

             53.   Since and as a result of Defendants’ conduct,
                   Plaintiff has suffered severe emotional distress.

             ...

             58.   As a direct and proximate result of the acts and
                   omissions of Defendants, Plaintiff has suffered and
                   will continue to suffer severe emotional distress,
                   including but not limited to mental anguish,
                   depression, stress, embarrassment, humiliation,
                   concern for his sons, substantial monetary expenses,
                   and other damages to be proven at trial.

      Plaintiff makes conclusory allegations but fails to assert any facts depicting

conduct by defendant McKeever that meet the threshold of extreme and outrageous

conduct, that is, conduct “exceed[ing] all bounds usually tolerated by a decent

society.” Shreve, 85 N.C. App. at 257, 354 S.E.2d at 359. Moreover, plaintiff fails to

assert any facts that would establish defendant McKeever knew or had a substantial

certainty plaintiff would suffer severe emotional distress as a result of McKeever’s

interview and counseling of Noah. See Holloway, 339 N.C. at 354–55, 452 S.E.2d at

243 (defining severe emotional distress 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”). Plaintiff’s complaint



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                                          Opinion of the Court



essentially asks the court to speculate on what action exhibited by defendant was

extreme and outrageous: performing her job as a licensed clinical social worker?; or

meeting with children’s parent or grandparents? We note defendant does not allege

any type of breach of confidentiality. Unwittingly or not, plaintiff’s complaint causes

one to speculate that the allegations of sexual abuse upon his children was a major

concern to the trial court and led to the two year no contact order against plaintiff.

From this, one could further infer that plaintiff’s own actions, not those of defendant

McKeever, provided the impetus for what plaintiff claims as the denial of

“substantive and meaningful contact with the Boys.”3 Thus, as plaintiff failed to

allege facts to show that defendant’s conduct amounted to extreme and outrageous

behavior, it was proper for the trial court to dismiss plaintiff’s claim of intentional

infliction of emotional distress. Further, plaintiff has not shown that he suffered from

severe emotional distress (neurosis, psychosis, chronic depression, phobia, or any

other type of severe and disabling emotional or mental condition).

        For the aforementioned reasons, we overrule plaintiff’s argument.

                                                    II




        3  It is noted that both the dissent and the concurring opinion react to the above comments in
this majority opinion that are essentially dicta, as they are speculative and not necessary to a proper
de novo review of the complaint. The majority opinion does reason, separate and apart from the dicta,
that the “facts” in the complaint, as alleged by plaintiff, when taken in the light most favorable to
plaintiff, fail to support plaintiff’s claim for intentional infliction of emotional distress. The dicta
merely reveals how plaintiff’s complaint not only fails to allege facts to establish his claim, but alleges
facts that support an inference as to why relief cannot be granted.

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                                  PIRO V MCKEEVER

                                  Opinion of the Court



      Next, plaintiff argues that the trial court erroneously usurped the function of

the fact-finder by concluding the harm caused by defendant McKeever was

unforeseeable.    Alternatively, plaintiff argues that the complaint establishes

foreseeable harm sufficient to state a claim for negligent infliction of emotional

distress. We disagree.

                    Our cases have established that to state a claim for
             negligent infliction of emotional distress, a plaintiff must
             allege that (1) the defendant negligently engaged in
             conduct, (2) it was reasonably foreseeable that such
             conduct would cause the plaintiff severe emotional distress
             (often referred to as “mental anguish”), and (3) the conduct
             did in fact cause the plaintiff severe emotional distress.
             Although an allegation of ordinary negligence will suffice,
             a plaintiff must also allege that severe emotional distress
             was the foreseeable and proximate result of such
             negligence in order to state a claim[.]

Ruark Obstetrics, 327 N.C. at 304, 395 S.E.2d at 97 (citations omitted).

      On appeal, plaintiff contends that his complaint makes numerous allegations

that, when treated as true, establish defendant McKeever had a duty to refrain from

negligently interacting with Noah and Ms. Shapiro. Defendant appears to argue,

albeit indirectly, that his allegations show that it was foreseeable to defendant

McKeever that plaintiff would be subject “to multiple investigations by the

authorities [that] would unreasonably interfere with, and suspend for nearly three

years, Plaintiff[]’s relationship with his children.” We disagree.




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                                 Opinion of the Court



      There are no allegations in plaintiff’s complaint which indicate that it was

reasonably foreseeable that McKeever’s conduct—i.e. her interview and counseling

of plaintiff’s child—would cause plaintiff severe emotional distress or mental

anguish. See Holloway, 339 N.C. at 354–355, 452 S.E.2d at 243 (defining “severe

emotional distress” 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”). Accordingly, we overrule plaintiff’s

argument.

      AFFIRMED.

      Judge GEER concurs in result by separate opinion.

      Judge TYSON dissents.




                                        - 13 -
No. COA15-351 – Piro v. McKeever


      GEER, Judge, concurring in the result.

      I agree with the majority opinion that the trial court properly granted

defendant McKeever’s motion to dismiss, but I reach this conclusion based on

somewhat different reasoning. I, therefore, respectfully concur in the result.

      With regard to plaintiff’s claim for intentional infliction of emotional distress

(“IIED”), the majority opinion holds that plaintiff has failed to state a claim upon

which relief can be granted because “Plaintiff [made] conclusory allegations but

fail[ed] to assert any facts depicting conduct by defendant McKeever that meet the

threshold of extreme and outrageous conduct[.]” While I agree with this conclusion,

I agree with the dissent that the following reasoning from the majority opinion is

inconsistent with the standard applicable to a motion to dismiss:

             Plaintiff’s complaint essentially asks the court to speculate
             on what action exhibited by defendant was extreme and
             outrageous: performing her job as a licensed clinical social
             worker?; or meeting with children’s parent or
             grandparents? We note defendant does not allege any type
             of breach of confidentiality. Unwittingly or not, plaintiff’s
             complaint causes one to speculate that the allegations of
             sexual abuse upon his children was a major concern to the
             trial court and led to the two year no contact order against
             plaintiff. From this, one could further infer that plaintiff’s
             own actions, not those of defendant McKeever, provided the
             impetus for what plaintiff claims as the denial of
             “substantive and meaningful contact with the Boys.”
                                 PIRO V. MCKEEVER

                             GEER, J., concurring in the result



In deciding a motion to dismiss, the factual allegations must be read in the light most

favorable to the plaintiff. The majority opinion, however, draws an inference in favor

of defendant McKeever.

      I do not believe that drawing this inference is necessary given that the

allegations in the complaint are not sufficient standing alone to rise to the level of

IIED. “[T]he initial determination of whether conduct is extreme and outrageous is

a question of law for the court: ‘If the court determines that it may reasonably be so

regarded, then it is for the jury to decide whether, under the facts of a particular case,

defendants’ conduct . . . was in fact extreme and outrageous.’ ” Johnson v. Bollinger,

86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987) (quoting Briggs v. Rosenthal, 73 N.C.

App. 672, 676, 327 S.E.2d 308, 311 (1985)). “ ‘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.’ ” Johnson v. Colonial Life & Accident Ins. Co., 173 N.C.

App. 365, 373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy, 152 N.C. App.

15, 22, 567 S.E.2d 403, 408-09 (2002)). “[T]his Court has set a high threshold for a

finding that conduct meets the standard.” 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).




                                            -2-
                                 PIRO V. MCKEEVER

                             GEER, J., concurring in the result



      In deciding whether the conduct alleged here was extreme and outrageous, it

is necessary to parse through our existing case law to determine exactly what kind of

conduct alleged is sufficiently “atrocious” or “intolerable in a civilized community” in

order to withstand a motion to dismiss for failure to state a claim for relief. Johnson,

173 N.C. App. at 373, 618 S.E.2d at 872. In West v. King’s Dep’t Store, Inc., 321 N.C.

698, 705-06, 365 S.E.2d 621, 625-26 (1988), our Supreme Court found that the

behavior of a store manager in publicly accusing two patrons of shoplifting and

threatening legal action against them, even after they presented their receipt for

purchase, was sufficient to withstand a motion for a directed verdict dismissing their

claims for IIED. Likewise, in Turner v. Thomas, ___ N.C. App. ___, ___, 762 S.E.2d

252, 264 (2014), disc. review allowed, 367 N.C. 810, 767 S.E.2d 523 (2015), this Court

found a plaintiff’s complaint sufficiently pled a claim for IIED when the complaint

alleged that “defendants . . . -- public officers -- essentially manufactured evidence to

negate plaintiff’s self defense claim” in plaintiff’s “highly publicized” prosecution for

a murder of which he was later exonerated.

      In Turner, we juxtaposed the facts of that case with the facts in Dobson, where

a department store employee exaggerated a report of child abuse against a store

customer and reported it to the Department of Social Services. Dobson, 134 N.C. App.

at 575, 521 S.E.2d at 713. We found that “[i]n Dobson, the defendant was a private

citizen whose false accusations of criminal conduct merely served to initiate an



                                            -3-
                                 PIRO V. MCKEEVER

                             GEER, J., concurring in the result



investigatory process.    The defendant’s conduct in Dobson was not considered

outrageous in part due to the existence of an independent investigatory process that

served to protect the plaintiff from further proceedings based on false accusations.”

Turner, ___ N.C. App. at ___, 762 S.E.2d at 265.

       I find the distinction between Turner and Dobson applicable here. Defendant

McKeever was not a “public officer,” as were the state agents in Turner, but was a

private citizen performing her work as a licensed clinical social worker, leaving

further investigation of the child abuse allegations to the appropriate authorities.

Furthermore, I would point out that plaintiff makes no allegations that defendant

McKeever intentionally “manufactured evidence” against plaintiff and makes no

allegations that defendant had knowledge of -- and ignored -- prior unsubstantiated

allegations of child abuse against plaintiff. Thus, there is a common element in

Turner and West that is not alleged against defendant McKeever here: the intentional

and knowing disregard of facts that could potentially exonerate or call into question

plaintiff’s allegedly criminal conduct.

      Therefore, I agree with the majority opinion that plaintiff has failed to

sufficiently allege conduct rising to the level of IIED, but I reach that conclusion based

on the similarity of this case to Dobson and the material distinctions between this

case and Turner and West. I cannot agree with the dissenting opinion which states

that “defendant McKeever used suggestive questioning and other techniques



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                                 PIRO V. MCKEEVER

                             GEER, J., concurring in the result



specifically aimed at eliciting a false allegation of sexual abuse . . . .” Although the

allegations in the complaint indicate defendant McKeever’s questioning was

professionally negligent, the complaint does not allege facts sufficient to allow an

inference that defendant McKeever’s conduct was intentionally aimed at eliciting a

false accusation from N.P. or that defendant McKeever willfully and knowingly

disregarded facts that would exonerate plaintiff, as was alleged in Turner and West.

I, therefore, would hold, as the majority does, that the trial court properly dismissed

plaintiff’s IIED claim as asserted against defendant McKeever.

      Turning to plaintiff’s claim for negligent infliction of emotional distress

(“NIED”), I would hold that the trial court properly dismissed that claim on the

grounds that plaintiff has failed to allege facts sufficient to show that he has suffered

severe emotional distress amounting, as required by the Supreme Court, to a “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 & Gynecology Assocs., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Plaintiff

has alleged only that he “has suffered and will continue to suffer severe emotional

distress, including . . . mental anguish[] [and] depression. I would hold that this

allegation is not sufficient to meet the standard set in Johnson.

      This Court has held that in order to withstand a motion to dismiss for failure

to state a claim, the allegations of distress must contain “the type, manner, or degree



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                                 PIRO V. MCKEEVER

                             GEER, J., concurring in the result



of severe emotional distress [the plaintiff] claims to have experienced.” Horne v.

Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142, 149, 746 S.E.2d 13, 20 (2013).

Although “chronic depression” is a condition identified in Johnson as sufficient to

support a claim for NIED, 327 N.C. at 304, 395 S.E.2d at 97, plaintiff here has not

alleged any other facts indicating a diagnosis of or treatment for his depression or

that his depression was disabling in any respect. See Fox v. Sara Lee Corp., 210 N.C.

App. 706, 715, 709 S.E.2d 496, 502 (2011) (“Thus, Plaintiff’s allegations, construed

liberally in her favor, suggest that she had been placed on medical leave, had ‘a

complete nervous breakdown[,]’ and became unable to manage her affairs, all at

around the same time.”) Even construing the complaint liberally, I cannot find

plaintiff’s allegations of severe emotional distress sufficient to establish a claim for

NIED and, therefore, agree with the majority opinion that the trial court properly

dismissed that claim as well. See also Pierce v. Atl. Grp., Inc., 219 N.C. App. 19, 32,

724 S.E.2d 568, 577 (2012) (holding that plaintiff failed to sufficiently allege severe

emotional distress when complaint simply alleged that plaintiff experienced serious

stress that severely affected his relationship with his wife and family members).

Consequently, I concur in the result.




                                            -6-
 No. COA15-351 – Piro v. McKeever

       TYSON, Judge, dissenting.


       The plurality and the concurring in the result only opinions uphold the trial

court’s dismissal of plaintiff’s claims of intentional and negligent infliction of

emotional distress for failure to state a claim pursuant to Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure. Their opinions hold plaintiff: (1) failed to allege

sufficient facts depicting conduct by defendant McKeever to “meet the threshold of

extreme and outrageous conduct;” and (2) failed to allege sufficient facts to indicate

it was reasonably foreseeable to defendant McKeever that her conduct would cause

Plaintiff severe emotional distress. I respectfully dissent from both conclusions.

       I vote to hold plaintiff’s complaint, taken as true, alleged sufficient facts under

“notice pleading” to assert defendant McKeever engaged in extreme and outrageous

conduct to satisfy that element of the tort of intentional infliction of emotional

distress. I also vote to hold plaintiff alleged sufficient facts to assert it was reasonable

for defendant McKeever to foresee her conduct could cause plaintiff severe emotional

distress to satisfy that element of the tort of negligent infliction of emotional distress.

I would reverse the Rule 12(b)(6) failure to state a claim dismissal by the trial court

and remand for further proceedings.

                                  I. Standard of Review
                                   PIRO V. MCKEEVER

                                    Tyson, J., dissenting



      The majority’s plurality opinion correctly notes this Court’s review of a trial

court’s grant of a motion to dismiss under North Carolina Rule of Civil Procedure

12(b)(6) is de novo. Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013).

      Numerous cases from our Supreme Court highlight the pleading standard a

plaintiff must comply with to survive a Rule 12(b)(6) motion to dismiss: “A complaint

is adequate, under notice pleading, if it gives a defendant sufficient notice of the

nature and basis of the plaintiff’s claim and allows the defendant to answer and

prepare for trial.” Burgess v. Busby, 142 N.C. App. 393, 399, 544 S.E.2d 4, 7, disc.

review improv. allowed, 354 N.C. 351, 553 S.E.2d 579 (2001) (citing Redevelopment

Comm. v. Grimes, 277 N.C. 634, 645, 178 S.E.2d 345, 351-52 (1971)). As a general

rule, “a complaint should not be dismissed for insufficiency unless it appears to a

certainty that plaintiff is entitled to no relief under any state of facts which could be

proved in support of the claim.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d

611, 615 (1979) (emphasis original) (citation omitted); see also Fussell v. N.C. Farm

Bureau Mut. Ins. Co., 364 N.C. 222, 227, 695 S.E.2d 437, 441 (2010) (“A trial court

should not grant a motion to dismiss unless it is certain that the plaintiff could prove

no set of facts that would entitle him or her to relief.” (citation omitted)).

                         II. Extreme and Outrageous Conduct

      Applying this standard of review as enunciated by our Supreme Court, the

allegations in plaintiff’s complaint are sufficient to support the “extreme and



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                                   Tyson, J., dissenting



outrageous” element of an intentional infliction of emotional distress claim. This

Court has held that “whether the alleged conduct on the part of the defendant ‘may

reasonably be regarded as extreme and outrageous’” is “initially a question of law[.]”

Burgess, 142 N.C. App. at 399, 544 S.E.2d at 7 (citation omitted). The alleged conduct

in an intentional infliction of emotional distress claim must “exceed[] all bounds of

decency tolerated by society[.]” West v. King’s Dept. Store, Inc., 321 N.C. 698, 704, 365

S.E.2d 621, 625 (1988).

      The plurality opinion concludes plaintiff has “fail[ed] to assert any facts

depicting conduct[] that meet[s] the threshold of extreme and outrageous conduct[.]”

I disagree and conclude the allegations presented in plaintiff’s complaint alleged

sufficient facts that, if proven, tend to show defendant McKeever’s conduct

“exceed[ed] all bounds usually tolerated by a decent society[.]” Id.

      Plaintiff alleged the following facts in his complaint: Noah’s mother, and

plaintiff’s former wife, Shapiro, contacted DSS during the pendency of child custody

litigation and alleged, without any foundation, Plaintiff had sexually assaulted Noah.

      DSS involved the Huntersville Police Department (“HPD”), and both agencies

conducted concurrent investigations into Shapiro’s allegations. On 19 April 2011,

HPD concluded there was no probable cause to arrest or charge plaintiff and closed

its investigation after interviewing, among others, plaintiff, Shapiro, and Noah. The




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                                  Tyson, J., dissenting



same day, DSS also found the allegations against plaintiff to be unsubstantiated, and

closed its investigation.

       Defendant McKeever is a licensed clinical social worker who conducted therapy

sessions with plaintiff’s sons, including 10-year-old Noah, beginning a month later on

19 May 2011. During all therapy sessions, Noah never displayed any signs nor

reported to defendant McKeever he had ever been the victim of any sexual abuse

perpetrated by Plaintiff or anyone else.

       On 9 June 2011, defendant McKeever conducted a forensic interview with

Noah “aimed at eliciting. . . a report of sexual abuse” from him. Plaintiff alleged

defendant McKeever “knew or should have known” she should not have conducted

the 9 June 2011 interview in which she allegedly used “overly suggestive

questioning,” “over-interpretations,” and other “means and methods known or that

she should have known to produce inaccurate and unreliable results.” Plaintiff

attempted to communicate with defendant McKeever by leaving a voicemail

requesting she contact him, but defendant McKeever never responded or returned

plaintiff’s call.

       As our Supreme Court has stated, when an appellate court reviews “a motion

to dismiss for failure to state a claim upon which relief can be granted, N.C. R. Civ.

P. 12(b)(6), all allegations of fact are taken as true[.]” Jackson v. Bumgardner, 318

N.C. 172, 174-75, 347 S.E.2d 743, 745 (1986). Taking these allegations as true, as we



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                                   Tyson, J., dissenting



must, plaintiff contends defendant McKeever, a licensed therapist, and in the total

absence of any history, signs, or factual basis, used suggestive questioning and other

unreliable methods to purposefully elicit an allegation of sexual abuse by a ten-year-

old boy against his father.     Noah had never previously made any allegation to

defendant McKeever.

      Defendant McKeever is alleged to have, along with the other defendants,

thereafter “engaged in further conduct that perpetuated and/or reinforced [Noah’s]

report, causing further damage.” The trial court in plaintiff’s and Shapiro’s child

custody case found as fact the allegations of sexual abuse against plaintiff “were false

and that plaintiff ‘unequivocally did not sexually abuse [Noah].’” Piro v. Piro, ___ N.C.

App. ___, 770 S.E.2d 389, 2015 N.C. App. LEXIS 118, *2 (2015) (unpublished)

(emphasis original).

      The plurality posits: “Unwittingly or not, plaintiff’s complaint causes one to

speculate that the allegations of sexual abuse upon his children was a major concern

to the trial court and led to the two year no contact order against plaintiff.” “[O]ne

could. . . infer,” the plurality continues, “that plaintiff’s own actions, not those of

defendant McKeever, provided the impetus for what plaintiff claims as the denial of

‘substantive and meaningful contact with the Boys.’”

       Under the required standard of review, the trial court and this Court must

take all allegations of fact as true and cannot weigh those facts. Jackson, 318 N.C. at



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                                    Tyson, J., dissenting



174-75, 347 S.E.2d at 745. In his complaint, plaintiff alleged that as a result of

defendant McKeever’s conduct, he was denied substantive and meaningful contact

with his sons for years and was also forced to spend years in litigation regarding

custody and visitation. It is not the duty, nor the province, of this Court under our

standard of review of the order dismissing plaintiff’s claims pursuant to Rule 12(b)(6)

to speculate or question the reason for the no contact order in contravention of

plaintiff’s well-pleaded allegations of fact stating the reason therefore.

      This 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. 77, 530 S.E.2d 829

(2000); see also Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 373,

618 S.E.2d 867, 872 (2005) (“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.” (citations omitted)).

      Our Supreme Court has held conduct to be extreme and outrageous in

circumstances I find to be much less “atrocious” or “intolerable” than the allegations

made by plaintiff here.

      In Stanback v. Stanback, our Supreme Court held a plaintiff had properly

stated a claim for intentional infliction of emotional distress sufficient to survive a



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                                  Tyson, J., dissenting



Rule 12(b)(6) motion by alleging the defendant breached a contract, the breach was

“wilful, malicious, calculated, deliberate and purposeful,” and that such breach

caused him to suffer “great mental anguish and anxiety.” Stanback, 297 N.C. 181,

198, 254 S.E.2d 611, 622-23 (1979).

      Likewise, in West v. King’s Dept. Store, Inc., Mr. and Mrs. West (“the

plaintiffs”) traveled to a discount department store looking for bargains. West, 321

N.C. at 699, 365 S.E.2d 621, 622. While at the store, the manager accused Mr. West

of stealing merchandise, and threatened to have him arrested if the goods were not

returned. Id.   Mr. West showed the manager a receipt for the allegedly stolen

merchandise and asked him not to involve his wife in the dispute, because she was

an outpatient at a local hospital and could not handle the aggravation and anxiety.

Id. at 700, 365 S.E.2d at 623. Ignoring the warning, the manager confronted Mrs.

West and also accused her of stealing merchandise. Id.

      The plaintiffs sued the store for, inter alia, intentional infliction of emotional

distress. Id. The trial court granted the defendant’s motion for a directed verdict as

to the claim, and this Court affirmed. Id. at 704, 365 S.E.2d at 625. Quoting the

dissenting Judge at the Court of Appeals, our Supreme Court reversed and held the

conduct of the store manager was sufficiently extreme and outrageous to survive a

motion for a directed verdict:

             Few things are more outrageous and more calculated to
             inflict emotional distress on innocent store customers that


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                                    Tyson, J., dissenting



              have paid their good money for merchandise and have in
              hand a document to prove their purchase than for the seller
              or his agent, disdaining to even examine their receipt, to
              repeatedly tell them in a loud voice in the presence of
              others that they stole the merchandise and would be
              arrested if they did not return it.

Id. (quoting West v. King, 86 N.C. App. 485, 358 S.E.2d 386 (Phillips, J., dissenting).

        I believe the allegations that defendant McKeever used suggestive questioning

and other techniques specifically aimed at eliciting a false allegation of sexual abuse

by a ten-year-old boy against his father, are more “atrocious” and “intolerable” than

the facts our Supreme Court found to be extreme and outrageous in Stanback and

West.    Plaintiff has alleged facts that, if proven, would constitute extreme and

outrageous conduct and fabrication of a false history by defendant McKeever which

“exceeds all bounds of decency tolerated by society[.]” West, 321 N.C. at 704, 365

S.E.2d at 625.      The plurality’s opinion erroneously weighs the evidence and

“speculates” to reach its conclusion to the contrary.

             III. Reasonably Foreseeable Nature of Plaintiff's Emotional Distress

        The plurality opinion also concludes plaintiff’s complaint contains “no

allegations. . . which would indicate that it was reasonably foreseeable that

McKeever’s conduct – i.e. her interview and counseling of plaintiff’s child – would

cause plaintiff severe emotional distress and anguish.” I disagree.

        Sufficient allegations in plaintiff’s complaint, if proven, would show plaintiff’s

severe emotional distress was, or should have been, reasonably foreseeable to


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                                  Tyson, J., dissenting



defendant McKeever. Plaintiff alleged defendant McKeever: (1) “specifically targeted

plaintiff and/or was overly suggesting of improper behavior by Plaintiff” in her

questioning of Noah; (2) conducted an interview with Noah “aimed at eliciting. . . a

report of sexual abuse” against plaintiff; (3) had “knowledge of the risks attendant to

her conduct including the risks that DSS. . . would investigate and prohibit” plaintiff

from visiting his sons; and (4) had knowledge that the risks were imminent and

closely related to” her conduct and such risks were “the reasonably foreseeable result

of [her] conduct.” Plaintiff further alleges defendant McKeever knew or reasonably

should have known her conduct failed to follow proper policies and procedures.

      Taken as true, plaintiff alleges defendant McKeever used inappropriate means

and methods in contravention of applicable policies and procedures, to intentionally

elicit a false criminal report of sexual abuse by a ten-year-old boy against his father

while knowing this conduct imminently risked plaintiff’s ability to parent and

interact with his sons. These allegations are sufficient to show defendant McKeever’s

actions were “reasonably foreseeable” to “cause the plaintiff severe emotional

distress.” Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304,

395 S.E.2d 85, 97 (1990) (citations omitted).

                                   IV. Conclusion

      “All allegations of fact are taken as true[.]” Jackson, 318 N.C. at 174-75, 347

S.E.2d at 745. At this very early point in the proceedings, plaintiff’s allegations,



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                                   Tyson, J., dissenting



taken as true, are sufficient to show defendant engaged in extreme and outrageous

conduct, and that it was reasonably foreseeable her conduct would cause plaintiff

severe emotional distress to survive a Rule 12(b)(6) motion to dismiss.

      I vote to reverse the judgment of the trial court and remand for further

proceedings on plaintiff’s claims. I respectfully dissent.




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