867 S.E.2d 743
N.C. Ct. App.2021Background
- Elizabeth Clark discovered her husband, Adam Clark (an Army Major), had exchanged sexually explicit messages/photos with another soldier and later found her own topless photo circulating online and in ads.
- Digital forensics (Derek Ellington) preserved data from Plaintiff’s devices and social accounts showing Plaintiff had only sent the topless photo to Adam; other posts/profiles (Kik, Craigslist, Facebook) traced to the IP of Clark/Barrett’s residence.
- Plaintiff sued Adam Clark and Kimberly Barrett for libel per se, unlawful disclosure of private images (N.C. Gen. Stat. § 14-190.5A), IIED, and related torts; Clark was criminally arrested for stalking/cyberstalking during the case.
- At trial a jury found Clark liable for libel per se, unlawful disclosure of private images (revenge porn), and IIED, awarding $1,510,000 compensatory and $500,000 punitive damages; Clark moved for JNOV/new trial and appealed.
- On appeal Clark challenged admission of the digital-forensics testimony, submission and sufficiency of the IIED claim, libel publication/authentication, revenge-porn proof, applicability of a preexisting separation release, and the damages award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Ellington’s testimony | Ellington testified to what he observed and preserved (lay testimony); his work corroborated Plaintiff’s account | Ellington was an unqualified expert and his testimony should have been excluded | Court treated testimony as lay; even if expert, any error was harmless; admission affirmed |
| IIED claim—subsumption and sufficiency | IIED supported by extreme, outrageous conduct, causation, and severe emotional distress | IIED is subsumed by other torts and evidence was insufficient | Election-of-remedies defense not preserved; more than a scintilla of evidence for IIED elements; claim properly submitted |
| Libel per se—publication & authentication | Craigslist and Facebook posts were published and authenticated by Plaintiff’s testimony and account-recovery evidence | Insufficient proof Clark published or authenticated the posts | Jury could find publication; Rule 901 authentication via Plaintiff’s firsthand knowledge sufficient |
| N.C. Gen. Stat. § 14-190.5A (revenge porn) | Image(s) showed intimate parts/shared without consent to humiliate; statute elements met across postings | Facebook ad’s emoji obscured a nipple so statutory element not met | Sufficient evidence across posts (including unaltered Kik image) for jury to decide; submission proper |
| Separation agreement release | Claims arise from post-agreement conduct, so release doesn’t bar them | Separation agreement released pre-execution claims | Release limited to pre-execution matters; inapplicable to 2018 conduct; error denied |
| Damages and punitive award | Libel per se supports presumed damages; punitive award permissible | Awards excessive; punitive unsupported by statutory factors | Trial court did not abuse discretion denying new trial; no clear miscarriage of justice; damages affirmed |
Key Cases Cited
- State v. Davis, 368 N.C. 794, 785 S.E.2d 312 (expert opinion vs. lay testimony distinction)
- State v. Broyhill, 254 N.C. App. 478, 803 S.E.2d 832 (case-by-case review whether testimony is expert)
- Watson v. Dixon, 130 N.C. App. 47, 502 S.E.2d 15 (examples of extreme/outrageous conduct supporting IIED)
- Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (definition of "severe emotional distress")
- Renwick v. News & Observer Pub. Co., 310 N.C. 312, 312 S.E.2d 405 (elements and concept of libel per se)
- Satterfield v. McLellan Stores Co., 215 N.C. 582, 2 S.E.2d 709 (publication requirement for libel)
- Norton v. Scotland Mem'l Hosp., Inc., 250 N.C. App. 392, 793 S.E.2d 703 (elements of IIED)
- Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (appellate review standard for trial-court denial of new trial on damages)