Clark v. Clark

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-652

No. COA20-447

Filed 7 December 2021

Cumberland County, No. 18 CVS 5727

ELIZABETH ANN CLARK, Plaintiff,

v.

ADAM MATTHEW CLARK and KIMBERLY RAE BARRETT, Defendants.

Appeal by Defendant from judgment entered 17 September 2019 and order

entered 30 October 2019 by Judge Mary Ann Tally in Cumberland County Superior

Court. Heard in the Court of Appeals 12 May 2021.

The Michael Porter Law Firm, by Michael R. Porter; and The Charleston Law

Group, by Jose A. Coker and R. Jonathan Charleston, for Plaintiff-Appellee.

Tharrington Smith, LLP, by Jeffrey R. Russell and Evan B. Horwitz, for

Defendant-Appellant.

WOOD, Judge.

¶1 On September 17, 2019, a jury found Defendant, Adam Clark, (“Defendant

Clark”) liable for unlawful disclosure of private images, intentional infliction of

emotional distress (“IIED”), and libel. Post-trial, Defendant Clark filed a motion for

judgment notwithstanding the verdict (“JNOV”), and in the alternative, motion for

new trial, which was denied. On appeal, Defendant Clark contends the trial court

erred in admitting expert witness testimony; allowing Plaintiff, Elizabeth Clark,

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(“Plaintiff”) to proceed with an IIED claim; and denying his post-trial motion. After

careful review of the record and applicable law, we disagree.

I. Factual and Procedural Background

¶2 On April 3, 2010, Plaintiff and Defendant Clark were married. At the time of

their marriage, Defendant Clark held the rank of Captain in the United States Army.

In or around May 2010, Plaintiff placed a personal advertisement on the website

Craigslist. Through this advertisement, Plaintiff met a man with whom she had a

sexual affair. According to Plaintiff, her extramarital affair lasted approximately ten

months.

¶3 The couple remained together and attended several “marriage retreats,”

through the U.S. Army. During their marriage retreats, Plaintiff and Defendant

Clark completed “exercises of trying to open up to your spouse, reconnect[ing] . . . .

[T]hey go into forgiveness of things.” Thereafter, the couple procreated two children

in 2014 and 2015, respectively. In October 2015, Defendant Clark was promoted to

Major.

¶4 In the spring of 2016, Defendant Clark attended Army training at Fort Belvoir,

Virginia. While staying at Fort Belvoir, Defendant Clark met Defendant, Kimberly

Barrett, MD (“Defendant Barrett”). Defendant Barrett held the rank of Lieutenant

Colonel in the Army and knew Defendant Clark was married at the time. While at

Fort Belvoir, Defendants Clark and Barrett stayed in barracks. The barracks were

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“like a U shape and it was two floors and [Defendants Clark and Barrett] were [in]

the same long building, but [Defendant Barrett] was down on the other end.” While

attending their training, Defendants Clark and Barrett “had been all alone in each

other’s rooms.”

¶5 Defendant Barrett testified that her relationship with Defendant Clark started

by Defendant Clark “helping [her] with homework or papers. Sometimes [she] had

questions. There is a lot of acronyms in the -- field, but in the military, there are a lot

of acronyms that [she] wasn’t familiar with.” While at Fort Belvoir, Defendant Clark

told Defendant Barrett “he did not have a good relationship” with his wife.

¶6 While Defendant Clark completed his educational program at Fort Belvoir,

Plaintiff “notice[d] a little bit of change” in her husband. Defendant Clark did not

travel home to North Carolina to visit and “wasn’t texting [Plaintiff] as often. One

time [Plaintiff] couldn’t get ahold of him and [she] tried calling his hotel room, [but

he] wouldn’t pick up when he was supposed to be in there . . . . He was short with

[her] on the telephone.”

¶7 Plaintiff used her cellphone to “trace or track” Defendant Clark’s cellphone,

during which time Defendant Clark’s phone was “showing a different location from

where his room was at.” Defendant Clark’s phone was “pinging . . . from the other

end of the hall,” from where Defendant Barrett was staying.

¶8 When Defendant Clark came home from Fort Belvoir for Independence Day,

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Plaintiff discovered he “was texting a female. [She] found a number in his phone.”

When Plaintiff asked Defendant Clark who the female was, he replied, “I don’t know

what you’re talking about.” Finding the phone number caused Plaintiff “a lot of

emotional distress.” The couple argued about it, and Plaintiff experienced “stroke-

like symptoms.” Plaintiff was ultimately diagnosed with “[m]igraines and stress.”

Defendant Clark returned to Fort Belvoir shortly thereafter.

¶9 In September 2016, Plaintiff discovered text messages between Defendants

Clark and Barrett, in which Defendant Clark sent Defendant Barrett a picture of his

penis taken in Plaintiff and Defendant Clark’s home. At the time she discovered the

sexually explicit photograph, Defendant Clark had changed Defendant Barrett’s

name in his cellphone’s contact information to “Jane S.” Plaintiff knew “Jane S.” was

Defendant Barrett because she had matched the cellphone number of “Jane S.” with

that of Defendant Barrett.

¶ 10 On September 11, 2016, Plaintiff asked Defendant Clark if he “still had

[Defendant Barrett’s] number.” Plaintiff threatened to call Defendant Barrett, and

Defendant Clark “jumped up really fast and chased after [Plaintiff] as [Plaintiff] was

dialing [Defendant Barrett’s] number.” Plaintiff threatened to ask Defendant Barrett

if she and Defendant Clark were having an extramarital affair. Because of this

interaction, the couple fought, and Defendant Clark left their marital home.

¶ 11 Although Plaintiff and Defendant Clark separated on September 11, 2016, the

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couple attempted reconciliation by maintaining an emotionally and sexually intimate

relationship. On March 17, 2017, Plaintiff and Defendant Clark executed a

separation agreement, in which Defendant Clark agreed to pay $1,850 in monthly

child support to Plaintiff. The separation agreement was drafted by Defendant

Clark’s attorney, and Plaintiff was not represented by independent counsel at the

time.

¶ 12 Throughout June and July 2017, Plaintiff and Defendant Clark engaged in

sexual intercourse and recorded themselves doing so. Also in July 2017, Defendant

Clark and Defendant Barrett conceived a child together through in vitro fertilization.

Defendant Clark continued to maintain an intimate and sexual relationship with

both his wife and with his paramour during this time. In August 2017, Defendant

Clark was located in Boston, Massachusetts for additional training. Plaintiff

attempted to videocall Defendant Clark through Facetime, but Defendant Clark did

not answer. When Defendant Clark did not answer, Plaintiff “sent him a topless

photo.” Plaintiff did not send the topless photograph to anyone else.

¶ 13 In September 2017, Plaintiff and Defendant Clark stopped having sexual

intercourse. Around this time, Defendant Clark began complaining about the amount

he paid to Plaintiff in child support. In October 2017, Plaintiff and Defendant Clark

exchanged text messages, in which Plaintiff sent Defendant Clark “a picture of female

genitalia.” Around that same time, Plaintiff discovered Defendant Barrett was

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pregnant with Defendant Clark’s child.1

¶ 14 In January 2018, Plaintiff discovered a Craigslist advertisement and believed

it to be about herself. The advertisement stated,

Liz is super hot! Shows you what plastic surgeons and

eating disorders can do for you in 2018. There’s a reason

she’s been divorced twice and can’t take care of her kids.

She’s a plaything, nothing more. Hope you fellas are

wearing condoms, she’s got herpes.

Plaintiff believed Defendant Clark posted the advertisement, because he “always said

[she] had an eating disorder and when [they] started not getting along, he said that

[she] didn’t take care of [her] children and [she] was a bad mother.” Plaintiff

responded to the advertisement, stating that she knew Defendant Clark posted it.

Whomever posted the advertisement denied being Defendant Clark. However, when

Plaintiff sent insulting language to the poster of the advertisement, Defendant Clark

sent Plaintiff a text message inquiring as to why he received such language.

¶ 15 In the text message, Defendant Clark included a “screenshot” of the message

he received. Plaintiff observed that the message was sent to an email address with

the username “elizabethclark0403.” Plaintiff did not use an email address with that

username but attempted to log into the email account. When Plaintiff attempted to

do so, the “recovery email” matched that of Defendant Clark’s personal email address.

1 Defendants Clark and Barrett had a child together on March 7, 2018.

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¶ 16 In March 2018, Plaintiff began interacting with Defendant Clark, who was

using the alias “Brian Bragg” on the social networking platform, Kik.2 The Brian

Bragg3 account sent Plaintiff the photograph of her nude breasts, saying, “Saw this

floating around the internet in the Fayetteville chat rooms just letting you know.”

“Brian Bragg” also stated the image was “all over the place,” and that he hoped

Plaintiff “[slept] well knowing [her] fun bags [were] hanging out there for the world

to see.”

¶ 17 In May 2018, Plaintiff discovered a Facebook “weight loss” advertisement

depicting Plaintiff. The advertisement was composed of a post-pregnancy photograph

of Plaintiff next to the photograph of Plaintiff’s nude breasts. Prior to Plaintiff finding

the advertisement, “Brian Bragg” had threatened to find and post Plaintiff’s post-

pregnancy photographs on Kik.

¶ 18 Throughout 2018, Plaintiff’s friends and co-workers contacted her when they

saw “Liz Clark” profiles, using a photograph of Plaintiff as a profile picture, in Kik

chatrooms soliciting “no strings attached sex.” Kik business records revealed that

the “Liz Clark” Kik profiles could be traced to an IP address that matched the IP

address of Defendants Clark and Barrett’s residence.

2 When asked if Defendant Clark used the alias “Brian Bragg,” Defendant Clark pled

the Fifth Amendment.

3 Plaintiff believed “Brian Bragg” was Defendant Clark, as the “Brian Bragg” account

used a photograph that Plaintiff took of Defendant Clark as a profile picture.

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¶ 19 When Plaintiff’s friends and co-workers notified her that they saw the saw “Liz

Clark” Kik profiles, she “was extremely embarrassed” and her “heart started racing.”

Plaintiff also received photographs from “Brian Bragg” depicting herself and her

vehicle. Attached to these photographs were messages discussing how people were

following Plaintiff. One message from “Brian Bragg” stated, “We are going to

continue doing everything in our power to make your life miserable.”

¶ 20 In August 2018, Plaintiff brought the instant action, asserting claims against

both Defendants Clark and Barrett for libel per se; intentional and negligent infliction

of emotional distress; and a violation of N.C. Gen. Stat. § 14-190.5A, a statute

providing criminal sanctions for what is commonly known as “revenge porn.” Plaintiff

asserted additional causes of action against Defendant Barrett for alienation of

affection and criminal conversation. In April 2019, Defendant Clark was arrested for

stalking and cyberstalking Plaintiff in violation of N.C. Gen. Stat. §§ 14-277.3(A)(c)

and 14-196.3.

¶ 21 In July 2019, the Cumberland County Superior Court barred the use of expert

witness testimony in the civil actions filed by Plaintiff based upon a motion filed by

Defendants Clark and Barrett to strike Plaintiff’s tardy designation of an expert

witness.

¶ 22 The case proceeded to trial in August 2019. During trial, Derek Ellington

(“Ellington”) was permitted to testify. Ellington is a digital forensics examiner in

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Cumberland County. During Ellington’s testimony, he laid the foundation for the

entry of a flash drive containing nearly 32,000 files. Ellington preserved the files from

Plaintiff’s electronic devices, and social media and email accounts. The data

Ellington gathered and saved demonstrated that Plaintiff had only sent the “topless

photo” of herself to Defendant Clark.

¶ 23 After a jury trial, the trial court entered judgment against Defendant Clark for

libel per se, unlawful disclosure of private images/revenge porn, and IIED on

September 17, 2019. Plaintiff was awarded $1,510,000.00 in compensatory damages

and $500,000.00 in punitive damages. Defendant Clark filed a motion for judgment

notwithstanding the verdict (“JNOV”), and in the alternative, a motion for a new trial

on September 26, 2019. The trial court denied Defendant Clark’s motions on October

30, 2019. Defendant Clark appeals from both the September 17, 2019 judgment and

the October 30, 2019 order denying his post-trial motion.

II. Discussion

¶ 24 Defendant Clark raises several arguments on appeal. Each will be addressed

in turn.

A. Ellington’s Testimony

¶ 25 Defendant Clark first contends the trial court erred “by admitting evidence

and testimony from an expert witness who was not qualified as such.” We disagree.

1. Standard of Review

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¶ 26 As a preliminary matter, the parties dispute the proper appellate standard of

review. Defendant Clark contends the appropriate standard of review is de novo,

because “[w]here the plaintiff contends the trial court’s decision is based on an

incorrect reading and interpretation of the rule governing admissibility of expert

testimony, the standard of review on appeal is de novo.” Cornett v. Watauga Surgical

Grp., P.A., 194 N.C. App. 490, 493, 669 S.E.2d 805, 807 (2008) (citations omitted).

Conversely, Plaintiff asks this Court to review the admission of Ellington’s testimony

for an abuse of discretion. Rule 104(a) of our rules of evidence provides that

“preliminary questions concerning the qualifications of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall be determined by the

court.” N.C. Gen. Stat. § 8C-1, Rule 104(a) (2020). Decisions made under Rule 104(a)

are addressed to the sound discretion of the trial court. See State v. Fearing, 315 N.C.

167, 174, 337 S.E.2d 551, 554 (1985).

¶ 27 After careful review of the applicable law, we review de novo whether Ellington

testified as an expert witness. See State v. Broyhill, 254 N.C. App. 478, 488, 803

S.E.2d 832, 839 (2017) (citation omitted); see also State v. Jackson, 258 N.C. App. 99,

107, 810 S.E.2d 397, 402 (2018) (noting that the Court applied a de novo standard of

review “because determining whether the State’s experts’ testimonies constituted

expert opinions . . . was a question” of law.) (citing State v. Davis, 368 N.C. 794, 797-

98, 785 S.E.2d 312, 314-15 (2015)). “Under a de novo review, the court considers the

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matter anew and freely substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and

internal quotation marks omitted). However, whether the trial court erroneously

admitted Ellington’s testimony is reviewed for an abuse of discretion. See Crocker v.

Roethling, 363 N.C. 140, 143, 675 S.E.2d 625, 628-29 (2009) (citation omitted); see

also State v. Turbyfill, 243 N.C. App. 183, 185-86, 776 S.E.2d 249, 252 (2015) (citation

omitted). “Abuse of discretion results where the Court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.” Turbyfill, 243 N.C. App. at 185-86, 776 S.E.2d at 252 (citation

omitted).

2. Whether Ellington’s Testimony Constitutes Expert Testimony

¶ 28 The parties next dispute whether Ellington testified as an expert or gave a lay

opinion. “Our Supreme Court . . . explained the threshold difference between expert

opinion and lay witness testimony.” Broyhill, 254 N.C. App. at 485, 803 S.E.2d at 839

(citing Davis, 368 N.C. at 798, 785 S.E.2d at 315). “[W]hen an expert witness moves

beyond reporting what he saw or experienced through his senses, and turns to

interpretation or assessment ‘to assist’ the jury based on his ‘specialized knowledge,’

he is rendering an expert opinion.” Davis, 368 N.C. at 798, 785 S.E.2d at 315 (quoting

N.C. Gen. Stat § 8C-1, Rule 702(a)). “Ultimately, ‘what constitutes expert opinion

testimony requires a case-by-case inquiry’ through an examination of ‘the testimony

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as a whole and in context.’ ” Broyhill, 254 N.C. App. at 485, 803 S.E.2d at 839 (quoting

Davis, 368 N.C. at 798, 785 S.E.2d at 315).

¶ 29 Here, Ellington testified about the general process for making a forensic or

digital copy of electronic devices and specifically testified as to how he made a copy of

Plaintiff’s electronic devices. Ellington’s testimony laid the foundation 4 for a flash

drive containing files from Plaintiff’s devices, demonstrating Plaintiff did not send

the “topless photo” to anyone other than Defendant Clark. A review of Ellington’s

testimony reveals that he testified not as an expert, but as a lay witness. Ellington

testified as to what he “saw or experienced” in creating copies of Plaintiff’s devices

and accounts. He did not interpret or assess the devices or accounts but explained the

process he used for Plaintiff’s devices was one that he did daily.

¶ 30 Presuming arguendo Ellington testified as an expert, Defendant Clark failed

to sufficiently demonstrate prejudice. See State v. Babich, 252 N.C. App. 165, 172,

797 S.E.2d 359, 364 (2017) (“Where it does not appear that the . . . admission of

evidence played a pivotal role in determining the outcome of the trial, the error is

harmless.”) (quoting State v. Mason, 144 N.C. App. 20, 27-28, 550 S.E.2d 10, 16

(2001)). Here, Plaintiff testified about the text messages, emails, and social media

messages and postings. Ellington’s testimony was not “pivotal” in determining

4 Defendant Clark does not argue that the flash drive was improperly authenticated

under N.C. Gen. Stat. § 8C-1, Rule 901.

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whether Defendants Clark and Barrett posted Plaintiff’s nude breasts on the

internet; rather, it corroborated Plaintiff’s testimony that she sent the topless

photograph to Defendant Clark. Therefore, we find no error in the trial court’s

decision to allow Ellington to testify.

B. IIED Claims

¶ 31 Next, Defendant Clark contends the trial court erred by allowing Plaintiff’s

IIED claim to proceed “when the conduct is subsumed by other causes of action,” and

by denying Defendant Clark’s post-trial motion “because there was insufficient

evidence for the claim of IIED to be submitted to the jury.” We disagree.

¶ 32 Whether Plaintiff’s IIED cause of action is subsumed by her other asserted

torts is a question of law reviewed de novo. See Piazza v. Kirkbride, 246 N.C. App.

576, 579, 785 S.E.2d 695, 698 (2016), modified, 372 N.C 137, 827 S.E.2d 479 (2019).

“The standard of review of a ruling entered upon a motion for judgment

notwithstanding the verdict is ‘whether, upon examination of all the evidence in the

light most favorable to the nonmoving party, and that party being given the benefit

of every reasonable inference drawn therefrom, the evidence is sufficient to be

submitted to the jury.’ ” Everhart v. O’Charley’s Inc., 200 N.C. App. 142, 148-49, 683

S.E.2d 728, 735 (2009) (quoting Branch v. High Rock Realty, Inc., 151 N.C. App. 244,

249-50, 565 S.E.2d 248, 252 (2002)). Generally, “[i]f there is more than a scintilla of

evidence supporting each element of the nonmoving party’s claim, the motion for

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directed verdict or JNOV should be denied.” Horner v. Byrnett, 132 N.C. App. 323,

325, 511 S.E.2d 342, 344 (1999) (citation omitted); see also Norman Owen Trucking,

Inc. v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998). “A scintilla of

evidence is defined as very slight evidence.” Hayes v. Waltz, 246 N.C. App. 438, 442-

43, 784 S.E.2d 607, 613 (2016).

¶ 33 In determining whether the trial court erred in denying a JNOV, “we must

take the plaintiff's evidence as true, and view all of the evidence in the light most

favorable to him/her, giving him/her the benefit of every reasonable inference which

may be legitimately drawn therefrom, with conflicts, contradictions, and

inconsistencies being resolved in the plaintiff's favor.” Watson v. Dixon, 130 N.C.

App. 47, 52, 502 S.E.2d 15, 19 (1998) (citations and internal quotation marks

omitted).

3. Election of Remedies

¶ 34 Defendant Clark contends the trial court erred in permitting Plaintiff to

pursue her claim for IIED, “when the conduct is subsumed by other causes of action.”

Defendant Clark specifically contends that Plaintiff cannot recover under both IIED

and another tort for the same conduct. Plaintiff argues Defendant Clark failed to

preserve this argument for appellate review, as it “was never raised in [Defendant]

Clark’s post-trial motions.”

¶ 35 “One is held to have made an election of remedies when he chooses with

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knowledge of the facts between two inconsistent remedial rights.” Lamb v. Lamb, 92

N.C. App. 680, 685, 375 S.E.2d 685, 687 (1989) (citation omitted). “The purpose of

the doctrine of election of remedies is to prevent more than one redress for a single

wrong.” Triangle Park Chiropractic v. Battaglia, 139 N.C. App. 201, 204, 532 S.E.2d

833, 835 (2000) (citation omitted). The doctrine of “[e]lection of remedies is an

affirmative defense which must be pleaded by the party relying on it.” North Carolina

Federal Sav. & Loan Ass’n v. Ray, 95 N.C. App. 317, 323, 382 S.E.2d 851, 856 (1989)

(citations omitted).

¶ 36 While Defendant Clark contends Plaintiff’s IIED claim should not have been

submitted to a jury because it was subsumed by other causes of action, Defendant

Clark did not raise the defense of election of remedies at trial or in his post-trial

motions. Therefore, he may not raise this argument on appeal. Id.; see also State ex

rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 704, 535 S.E.2d 84, 92-93

(2000).

4. Sufficiency

¶ 37 Next, Defendant Clark contends the trial court erred in denying his post-trial

motions because Plaintiff did not present evidence to support each element of IIED.

We disagree.

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

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

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cause (3) severe emotional distress to another.” Norton v. Scotland Mem’l Hosp., Inc.,

250 N.C. App. 392, 397, 793 S.E.2d 703, 708 (2016) (citation omitted). “Extreme and

outrageous conduct is defined as conduct that is ‘so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.” Id. (citation omitted).

a. Severe Emotional Distress

¶ 39 Defendant Clark first argues Plaintiff failed to present evidence that she

suffered from “severe emotional distress.” We disagree.

¶ 40 “[T]he term ‘severe emotional distress’ means any emotional or mental

disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any

other type of severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by professionals trained to do so.” Waddle v.

Sparks, 331 N.C. 73, 83, 414 S.E.2d 22, 27 (1992) (citation and emphasis omitted).

However, severe emotional distress does not require medical expert testimony.

Williams v. HomEq Serv. Corp., 184 N.C. App. 413, 419, 646 S.E.2d 381, 385 (2007).

Testimony of a plaintiff’s “friends, family, and pastors can be sufficient to support a

claim. . . .” Id. (citations omitted).

¶ 41 Here, Plaintiff testified at trial that she cried hysterically, hyperventilated,

and sought out a counselor at a local clinic in response to the conduct of Defendants

Clark and Barrett. One of Plaintiff’s friends testified that Plaintiff was “very

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emotionally distraught and crying” on a weekly basis and that Plaintiff experienced

anxiety. Although Plaintiff did not attend counseling for her anxiety on a regular

basis, she testified this was out of fear that such treatment would negatively impact

her probability of maintaining shared custody of her children. Taking the evidence

in the light most favorable to Plaintiff, we hold there was more than a scintilla of

evidence she suffered severe emotional distress as a result of the conduct of

Defendants Clark and Barrett.

b. Causation

¶ 42 Defendant Clark further contends the trial court erred in denying his post-trial

motion because Plaintiff failed to show a causal link between Defendant Clark’s

conduct and Plaintiff’s emotional harm. We disagree.

¶ 43 Intentional infliction of emotional distress requires outrageous conduct that is

intended to cause and does cause severe emotional distress. See Hogan v. Forsyth

Country Club Co., 79 N.C. App. 483, 487-88, 340 S.E.2d 116, 119-20 (1986) (citation

omitted).

The tort may also exist where defendant’s actions indicate

a reckless indifference to the likelihood that they will cause

severe emotional distress. Recovery may be had for the

emotional distress so caused and for any other bodily harm

which proximately results from the distress itself.

Id. (citation omitted).

¶ 44 Defendant Clark argues Plaintiff failed to show his conduct caused Plaintiff

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severe emotional distress because Plaintiff experienced “stroke-like symptoms” and

was diagnosed with “migraines and stress” prior to the complained of conduct to

support her IIED claim. While the trial court noted Plaintiff’s emotional distress

included “stroke-like symptoms,” it did not solely rely on such symptoms in finding

Plaintiff produced evidence of severe emotional distress. Specifically, the trial court

noted, “that Defendant Clark’s conduct did cause severe emotional distress to

Plaintiff in the form of anxiety and also physical manifestations, including stroke like

symptoms.” Plaintiff presented evidence that Defendant Clark acted with a disregard

to Plaintiff’s emotional state and that there was a high possibility of emotional

distress in that, Defendant Clark posed as “Brian Bragg” and engaged in “long-term

electronic harassment of . . . Plaintiff to include, inter alia, calling the Plaintiff

disparaging names, including ‘whore’ and ‘white trash’ ”; Defendant Clark created a

fake Kik profile and posed as Plaintiff, causing the profile to become a member in

various chatrooms intended for “no strings attached sex”; and Defendant Clark posted

libelous social media postings about Plaintiff on Craigslist and Facebook.

¶ 45 There is no dispute Plaintiff experienced “stroke-like symptoms” prior to the

parties’ execution of the separation agreement. Plaintiff experienced anxiety,

hyperventilation, and other emotional distress as a result of the conduct of

Defendants Clark and Barrett. Plaintiff testified this was caused by Defendants

Clark and Barrett messaging her that they would do “everything in [their] power to

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make [her] life miserable” and by discovering fake “Liz Clark” Kik profiles soliciting

“no strings attached” sexual intercourse. Accordingly, we hold there was more than a

scintilla of evidence to find a causal link between the complained of conduct and

Plaintiff’s emotional distress.

c. Outrageous Conduct

¶ 46 Next, Defendant Clark argues Plaintiff failed to present sufficient evidence of

extreme and outrageous conduct because trading mere insults does not give rise to a

claim of IIED. We disagree.

¶ 47 “[T]he initial determination of whether conduct is extreme and outrageous is a

question of law,” to be determined by the court. Johnson v. Bollinger, 86 N.C. App.

1, 6, 356 S.E.2d 378, 381 (1987) (citing Briggs v. Rosenthal, 73 N.C. App. 672, 676,

327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985)). Conduct is

considered extreme or outrageous “when a defendant’s conduct exceeds all bounds

usually tolerated by decent society.” Watson, 130 N.C. App. at 52, 502 S.E.2d at 19

(citation omitted). Conduct has also been deemed “extreme and outrageous when it

is so outrageous in character, and so extreme in degree, as to go beyond all possible

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

civilized community.” Chidnese v. Chidnese, 210 N.C. App. 299, 316, 708 S.E.2d 725,

738 (2011) (internal quotation marks and citation omitted).

The liability clearly does not extend to mere insults,

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indignities, threats, annoyances, petty oppressions, or

other trivialities. The rough edges of our society are still

in need of a good deal of filing down, and in the meantime,

plaintiffs must necessarily be expected and required to be

hardened to a certain amount of rough language, and to

occasional acts that are definitely inconsiderate and

unkind. There is no occasion for the law to intervene in

every case where someone’s feelings are hurt. There must

still be freedom to express an unflattering opinion . . . .

Id. (citation omitted). In Watson v. Dixon, this Court found sufficient evidence of

“extreme and outrageous behavior” where the defendant “harass[ed]” the plaintiff,

and “frightened and humiliated [the plaintiff] with cruel practical jokes, which

escalated to obscene comments and behavior of a sexual nature . . . .” 130 N.C. App.

at 53, 502 S.E.2d at 20.

¶ 48 Viewing the evidence in the light most favorable to Plaintiff, and taking that

evidence as true, the evidence tends to show that Defendant Clark began harassing

and stalking Plaintiff after the date of separation; frightened Plaintiff by stating, “We

are going to continue doing everything in our power to make your life miserable”; and

humiliated Plaintiff by posting advertisements and photographs of Plaintiff online,

containing Plaintiff’s personal information. Thus, we hold the trial court did not err

in denying Defendant Clark’s JNOV, as Plaintiff presented more than a scintilla of

evidence of “extreme and outrageous behavior.” See Watson, 130 N.C. App. at 53, 502

S.E.2d at 20 (citing Denning-Boyles v. WCES, Inc., 123 N.C. App. 409, 473 S.E.2d 38

(1996); Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232 (1989),

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disc. review improvidently allowed, 326 N.C. 356, 388 S.E.2d 769 (1990); Hogan, 79

N.C. App. 483, 340 S.E.2d 116).

C. Plaintiff’s Libel Claim

¶ 49 Next, Defendant Clark contends the trial court erred in denying his post-trial

motion with respect to Plaintiff’s libel claim. Defendant Clark brings forth two

arguments with respect to Plaintiff’s claim for libel per se; namely, whether Plaintiff

failed to prove the libelous statements were published and whether two libelous

publications were properly authenticated.

¶ 50 “North Carolina law recognizes three classes of libel . . . . [P]ublications

obviously defamatory . . . are called libel per se.” Daniels v. Metro Magazine Holding

Co., L.L.C., 179 N.C. App. 533, 538, 634 S.E.2d 586, 590 (2006) (citation omitted).

Libel per se is

a publication by writing, printing, signs or pictures which,

when considered alone without innuendo, colloquium or

explanatory circumstances: (1) charges that a person has

committed an infamous crime; (2) charges a person with

having an infectious disease; (3) tends to impeach a person

in that person’s trade or profession; or (4) otherwise tends

to subject one to ridicule, contempt, or disgrace.

Renwick v. News & Observer Pub. Co., 310 N.C. 312, 317-18, 312 S.E.2d 405, 409

(1984) (citation omitted). “It is an elementary principle of law that there can be no

libel without a publication of the defamatory matter.” Satterfield v. McLellan Stores

Co., 215 N.C. 582, 584, 2 S.E.2d 709, 711 (1939). “To constitute a publication, such

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as will give rise to a civil action, there must be a communication of the defamatory

matter to some third person or persons.” Id. (citation omitted).

a. Publication

¶ 51 Defendant Clark first contends Plaintiff failed to present sufficient “evidence

that Defendant Clark publicized the alleged content to Facebook or Craigslist.” We

disagree.

¶ 52 There are two libelous electronic social media postings at issue: a Craigslist

advertisement and the Facebook “weight loss” advertisement. Craigslist itself is a

website in which individuals can post personal advertisements for third-party

viewing. Plaintiff testified she discovered the Craigslist advertisement, and

presumably, other individuals observed the personal advertisement as well. Thus,

there was sufficient evidence that the Craigslist advertisement was published.

¶ 53 Plaintiff further testified that she responded to the Craigslist ad online with

an insulting message directed at Defendant Clark. Defendant Clark, in response,

text messaged a picture of Plaintiff’s message, inquiring as to why she had sent him

such a message. From Defendant Clark’s response, Plaintiff was able to see that the

“poster” of the personal ad used the email “elizabethclark0403.” This was not

Plaintiff’s personal email, but she attempted to log into the email account. Because

Plaintiff did not have the login information for “elizabethclark0403,” she attempted

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to “recover” the login information through Google’s email system.5 Upon doing so,

Plaintiff discovered the “recovery email” for “elizabethclark0403” was Defendant

Clark’s personal email address. Therefore, we hold there was more than a scintilla of

evidence that Defendant Clark published the Craigslist advertisement.

¶ 54 Defendant Clark further argues there was insufficient evidence that

Defendant Clark published the Facebook “weight loss” advertisement. We disagree.

¶ 55 Plaintiff testified a third party sent Plaintiff the Facebook advertisement,

establishing that the ad was indeed published. Plaintiff further testified that both

photographs used in the advertisement were in the sole possession of Defendant

Clark. Further, “Brian Bragg” mentioned Plaintiff’s post-pregnancy photographs and

that he would “make sure to find” such photographs shortly before the Facebook

advertisement was posted. As Plaintiff presented more than a scintilla of evidence

that Defendant Clark published the Facebook advertisement, we find no error.

b. Authentication

¶ 56 Defendant Clark next argues the trial court erred by denying his motion for

JNOV because Plaintiff did not properly authenticate the libelous postings. We

5 If a “gmail” or Google email account holder forgot their password or username, they

can recover their Google account by entering certain information such as their username,

their “recovery” email address, or a phone number. See How to recover your Google account

or Gmail, https://support.google.com/accounts/answer/7682439?hl=en.

A “recovery email” is a separate email account Google account holders can use to

recover their lost username or password.

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disagree.

¶ 57 Under Rule 901 of our evidentiary rules, “[t]he requirement of authentication

. . . is satisfied by evidence sufficient to support a finding that the matter in question

is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2020). Rule 901(b)

provides examples of authentication methods that satisfy the requirements of

Subsection (a), including testimony of a witness with knowledge “that a matter is

what it is claimed to be.” N.C. Gen. Stat. § 8C-1, Rule 901(b)(1). Here, Plaintiff

authenticated the libelous electronic postings through her own testimony. Plaintiff

testified that she personally saw the advertisement, recognized it to be about her, and

made a copy of the ad. Likewise, Plaintiff authenticated the Facebook advertisement

by testifying the advertisement was sent directly to her by a third party and the

advertisement exhibits characteristics of Facebook as a social media site, in that it

demonstrates where viewers can interact with the posting. Accordingly, we hold

Plaintiff sufficiently authenticated each libelous posting through first-hand

knowledge under Rule 901(b)(1).

D. N.C. Gen. Stat. § 14-190.5A

¶ 58 Next, Defendant Clark contends the trial court erred by denying his post-trial

motion as there was insufficient evidence for the issue of “revenge porn” to be

submitted to the jury. Specifically, Defendant Clark argues Plaintiff failed to show

that he shared an image of “intimate parts” under N.C. Gen. Stat. § 14-190.5A.

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¶ 59 N.C. Gen. Stat. § 14-190.5A prohibits the “disclosure of private images” and is

commonly known as the “revenge porn” statute. Section 14-190.5A provides,

A person is guilty of disclosure of private images if all of

the following apply:

(1) The person knowingly discloses an image of another

person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or

cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean,

humiliate, or cause financial loss to the depicted person.

(2) The depicted person is identifiable from the disclosed

image itself or information offered in connection with the

image.

(3) The depicted person’s intimate parts are exposed or the

depicted person is engaged in sexual conduct in the

disclosed image.

(4) The person discloses the image without the affirmative

consent of the depicted person.

N.C. Gen. Stat. § 14-190.5A(b) (2020). “Intimate parts” is statutorily defined as “[a]ny

of the following naked human parts: (i) male or female genitals, (ii) male or female

pubic area, (iii) male or female anus, or (iv) the nipple of a female over the age of 12.”

N.C. Gen. Stat. § 14-190.5A(a)(3).

¶ 60 Defendant Clark argues in his brief that the issue of revenge porn should not

have been submitted to the jury, because the Facebook “weight loss” advertisement

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had a star emoji6 covering one of Plaintiff’s nipples and did not violate the “revenge

porn” statute or Facebook’s “Community Standards.” However, Defendant Clark

ignores that the topless photograph that appeared on Facebook with a star is the

same photograph shared through Kik, sans star emoji. We hold that there was

sufficient evidence as to each element contained within the “revenge porn” statute

such that the trial court did not err in submitting the issue to the jury.

E. Separation Agreement & Property Settlement

¶ 61 In his sixth argument on appeal, Defendant Clark contends that “[t]o the

extent that the factual basis for any of Plaintiff’s claims against Defendant Clark

occur prior to March 16, 2017, they are waived by a provision in the parties’

separation agreement entitled ‘Mutual Release.’ ”

¶ 62 The “Mutual Release” provision provides,

[E]ach party does hereby release and discharge the other

of and from all causes of action, claims, rights or demands

whatsoever, at law or in equity, which either of the parties

ever had or now has against the other, known or unknown,

by reason of any matter, cause, or thing up to the date of

the execution of this agreement, except the cause of action

for divorce based upon the separation of the parties. It is

the intention of the parties that henceforth there shall be,

as between them, only such rights and obligations as are

specifically provided for in this agreement, the right of

6 The Merriam-Webster dictionary defines an “emoji” as “any of various small images,

symbols, or icons used in text fields in electronic communication (such as text messages,

email, and social media) to express the emotional attitude of the writer, convey information

succinctly, communicate a message playfully without using words, etc.”

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action for divorce, and such rights and obligations as are

specifically provided for in any deed or other instrument

executed contemporaneously or in connection herewith.

However, Plaintiff’s claims arise from Defendant Clark’s conduct that occurred after

the parties executed the agreement in March 2017. Plaintiff’s claims arise from

Defendant Clark’s posting of libelous statements and explicit photographs in 2018.

Therefore, this assignment of error is without merit.

F. Damages

¶ 63 In Defendant Clark’s final argument on appeal, he contends the trial court

erred in denying his motion for JNOV “because the damages awarded to Plaintiff

were improper and not supported by the evidence.” We disagree.

¶ 64 The trial court has discretion to grant a new trial where the jury awards

“[e]xcessive or inadequate damages appearing to have been given under the influence

of passion or prejudice.” N.C. R. Civ. P. 59(a)(6). However,

our appellate courts should place great faith and

confidence in the ability of our trial judges to make the

right decision, fairly and without partiality, regarding the

necessity for a new trial. Due to their active participation

in the trial, their first-hand acquaintance with the evidence

presented, their observances of the parties, the witnesses,

the jurors and the attorneys involved, and their knowledge

of various other attendant circumstances, presiding judges

have the superior advantage in best determining what

justice requires in a certain case.

Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982).

“Consequently, an appellate court should not disturb a Rule 59 order unless it is

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reasonably convinced by the cold record that the trial judge’s ruling probably

amounted to a substantial miscarriage of justice.” Id.

¶ 65 Here, there is no evidence of a “substantial miscarriage of justice.” Although

the jury awarded $1,000,0000 in damages for libel per se, libel per se allows for

presumed damages for pain and suffering without a showing of special damages. See

Iadanza v. Harper, 169 N.C. App. 776, 779-80, 611 S.E.2d 217, 221 (2005).

¶ 66 Defendant Clark also contends that the award of punitive damages was

inappropriate as the trial court failed to receive evidence or make findings of fact

concerning all of the factors enumerated in N.C. Gen. Stat. § 1D-35. However, the

jury is not mandated to consider all factors enumerated in Section 1D-35. The plain

language of the statute allows the trier of fact to consider such factors, but it is not a

requirement. Accordingly, we hold the trial court did not err in denying Defendant

Clark’s post-trial motion with respect to damages.

III. Conclusion

¶ 67 After careful review of the record and applicable law, we conclude there was

no error at trial. Additionally, we hold the trial court did not err in denying

Defendant Clark’s motion for JNOV. Plaintiff presented more than a scintilla of

evidence in support of each asserted cause of action. We further hold the trial court

did not err in denying Defendant Clark’s post-trial motion because the separation

agreement is inapplicable to the complained of conduct and the damages awarded to

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Plaintiff were proper.

NO ERROR AND AFFIRMED.

Judges TYSON and HAMPSON concur.