concurring in part and dissenting in part.
I concur with the majority that the plaintiff is entitled to summary judgment on defendants’ claims for intentional and negligent infliction of emotional distress. However, I dissent from the portion of the *325opinion which finds that plaintiff is not entitled to summary judgment on defendants’ counterclaim for violation of their constitutional rights.
Summary judgment is properly granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990). A movant may meet its burden by showing that (1) an essential element of the plaintiff’s claim is nonexistent; or (2) based on discovery, the plaintiff cannot produce evidence to support an essential element of its claim; or (3) the plaintiff cannot surmount an affirmative defense which would bar the claim. Watts v. Cumberland County Hosp. System, 75 N.C. 1, 6, 330 S.E.2d 242, 247 (1985), rev’d in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986). In the present case, the defendants have failed to allege any constitutional deprivation. I find no allegations in defendants’ counterclaim that they have been deprived of their property. At most, defendants assert a possibility of future harm to their property if foreclosure occurs. Since defendants have not alleged any constitutional deprivation, it is unnecessary to reach the issue of immunity. Accordingly, I would hold that plaintiff is entitled to summary judgment on defendants’ counterclaim in its entirety.
Although I would find that plaintiff is entitled to summary judgment on defendants’ counterclaim, the defendants are not without a remedy in this case. The legislature has provided that “[t]he tax lien on real property shall continue until the principal amount of the taxes plus penalties, interest, and costs allowed by law have [sic] been fully paid.” N.C. Gen. Stat. § 105-362(a) (1995). Further, the term “costs” is to be construed to include a reasonable attorney’s fee. N.C. Gen. Stat. § 105-374(i) (1995). Defendants assert in their answer that the plaintiff should be required to accept their tender of payment of the taxes and interest due and that plaintiff’s liens should be released without requiring payment of attorney’s fees. The plaintiff is not authorized under N.C. Gen. Stat. § 105-374 to assess the $1,600.00 in attorney’s fees as part of the taxes and the collection of those fees cannot be the basis of any foreclosure action. Upon defendants’ denial that attorney’s fees were owed, it was incumbent upon the trial court to determine under N.C. Gen. Stat. § 105.374 whether plaintiff was entitled to an award of attorney’s fees. Thereafter, upon payment by plaintiffs of the taxes and any court-ordered attorney’s fees, they were entitled to have the tax liens cancelled on the four parcels of land in question.