Boyce & Isley, PLLC v. Cooper

• Decision Date: 17 September 2002
• Docket Number: No. COA01-880.,COA01-880.
• Citation: 568 S.E.2d 893,153 NC App. 25
• Court: North Carolina Court of Appeals
• Parties: BOYCE & ISLEY, PLLC, Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, Plaintiffs, v. Roy A. COOPER, III, The Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, Defendants.

568 S.E.2d 893

153 NC App. 25

BOYCE & ISLEY, PLLC, Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, Plaintiffs, v. Roy A. COOPER, III, The Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, Defendants.

No. COA01-880.

Court of Appeals of North Carolina.

September 17, 2002.

Boyce & Isley, PLLC, by G. Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, pro se, Raleigh, plaintiff-appellants.

Brooks, Pierce, McLendon, Humphrey, & Leonard, L.L.P., by Jim W. Phillips, Jr., Raleigh, and David Kushner, and Smith Helms Mulliss & Moore, L.L.P., by Alan W. Duncan, Greensboro, for defendant-appellees.

TIMMONS-GOODSON, Judge.

The law firm of Boyce & Isley, PLLC, and its member attorneys G. Eugene Boyce, R. Daniel Boyce, Philip R. Isley and Laura B. Isley (collectively, "plaintiffs") appeal from an order of the trial court dismissing plaintiffs' complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the reasons set forth herein, we reverse in part the order of the trial court.

The facts relevant to this appeal are as follows: On 2 November 2000, plaintiffs filed a complaint with the State Board of Elections. The complaint alleged that a political advertisement sponsored by the campaign of Roy Cooper, the Democratic nominee for the Office of Attorney General of North Carolina, violated section 163-274(8) of the North Carolina General Statutes, which prohibits "any person to publish ... derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity[.]" N.C. Gen.Stat. § 163-274(8) (2001).

During the pendency of the action before the State Board of Elections, plaintiffs filed a similar complaint in Wake County Superior Court alleging that Roy Cooper, along with the Cooper Committee (collectively, "defendants") published a false and fraudulent political television advertisement during the North Carolina election campaign for the Office of Attorney General. Plaintiffs alleged that the advertisement defamed R. Daniel Boyce ("Dan Boyce"), the Republican nominee for the Office of Attorney General, as well as the member attorneys of the Boyce & Isley law firm. The complaint recited verbatim the content of the advertisement at issue, the audio portion of which is reproduced here as follows:

I'm Roy Cooper, candidate for Attorney General, and I sponsored this ad.

....

Dan Boyce—his law firm sued the state, charging $28,000 an hour in lawyer fees to the taxpayers.

The Judge said it shocks the conscience.

Dan Boyce's law firm wanted more than a police officer's salary for each hour's work.

Dan Boyce, wrong for Attorney General.

Plaintiffs alleged that defendants' publication of the above-stated advertisement was defamatory per se and constituted unfair and deceptive trade practices. Further, plaintiffs accused defendants of conspiring to violate statutory section 163-274(8), referenced supra, and requested a declaratory judgment regarding defendants' alleged violation of such statute.

On 20 December 2000, the State Board of Elections dismissed plaintiffs' complaint. On 6 April 2000, the trial court also granted defendants' motion to dismiss plaintiffs' complaint on all claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. From this order, plaintiffs appeal.

On appeal, plaintiffs bring forth two assignments of error, arguing that the trial court erred in dismissing their claims against defendants for defamation and for unfair and deceptive trade practices. By cross-appeal, defendants assign error to the trial court's refusal to take judicial notice of the order of the State Board of Elections dismissing plaintiffs' complaint. We examine plaintiffs' and defendants' arguments in turn.

I. Plaintiffs' Appeal

In their first assignment of error, plaintiffs contend that the trial court erred by dismissing their claim for defamation. Plaintiffs argue that their complaint states a valid claim for defamation against defendants upon which relief may be granted. We agree.

A motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure tests the legal sufficiency of the complaint. See N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2001); Fuller v. Easley, 145 N.C.App. 391, 397-98, 553 S.E.2d 43, 48 (2001). When ruling on a motion to dismiss, "the trial court must take the complaint's allegation[s] as true and determine whether they `are sufficient to state a claim upon which relief may be granted under some legal theory.' " Id. (quoting Taylor v. Taylor, 143 N.C.App. 664, 668, 547 S.E.2d 161, 164 (2001)). The ultimate issue on a motion to dismiss is not " `whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.' " Johnson v. Bollinger, 86 N.C.App. 1, 4, 356 S.E.2d 378, 381 (1987)(quoting Concrete Service Corp. v. Investors Group, Inc., 79 N.C.App. 678, 681, 340 S.E.2d 755, 758, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986)). Thus, a claim should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Garvin v. City of Fayetteville, 102 N.C.App. 121, 123, 401 S.E.2d 133, 134-35 (1991)

.

In the instant case, plaintiffs' complaint set forth a claim for defamation against defendants, including libel per se and slander per se. In order to recover for defamation, a plaintiff must allege that the defendant caused injury to the plaintiff by making false, defamatory statements of or concerning the plaintiff, which were published to a third person. See Tyson v. L'eggs Products, Inc., 84 N.C.App. 1, 10-11, 351 S.E.2d 834, 840 (1987)

. There is no dispute in the instant case that the statements made by defendants were intentionally published to the public at large. Therefore, we address the first three elements of plaintiffs' defamation claim, namely that the statements were (1) false, (2) defamatory, and (3) of or concerning plaintiffs. We therefore turn to the facts as alleged in plaintiffs' complaint.

In support of the first element for defamation, that of falsity, plaintiffs argue that their complaint sets forth specific facts that, if true, demonstrate that defendants' advertisement misstated several fundamental facts. Specifically, the complaint alleged that, contrary to the stated facts of the advertisement, "Dan Boyce's law firm" did not exist in November of 1997, the time period during which, according to the advertisement, the law firm sued the state. Further, the complaint denied that "Dan Boyce's law firm" had ever "charg[ed] $28,000 an hour in lawyer fees[,]" as stated in the advertisement.

We conclude that plaintiffs set forth sufficient specific facts to support their claim that the statements made by defendants were false. If proven, the above-stated facts would show that defendants' advertisement contained several central errors of fact, publication of which tended to falsely imply that plaintiffs had sued the state and demanded excessive fees for their work at the expense of taxpayers. We next determine whether plaintiffs have set forth sufficient facts alleging defamation.

In North Carolina, the term defamation applies to the two distinct torts of libel and slander. Libel per se is "a publication which, when considered alone without 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." Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C.App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. review denied, 340 N.C. 115, 456 S.E.2d 318 (1995). Slander per se is "an oral communication to a third party which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease." Id. When the defamatory words are spoken with an intent that the words be reduced to writing, and the words are in fact written, the publication is both libelous and slanderous. See Clark v. Brown, 99 N.C.App. 255, 261, 393 S.E.2d 134, 137,

disc. review denied, 327 N.C. 426, 395 S.E.2d 675 (1990). "[F]alse words imputing to a merchant or business man conduct derogatory to his character and standing as a business man and tending to prejudice him in his business are actionable, and words so uttered may be actionable per se." Badame v. Lampke, 242 N.C. 755, 757, 89 S.E.2d 466, 468 (1955); see also Ausley v. Bishop, 133 N.C.App. 210, 214-15, 515 S.E.2d 72, 76 (1999) (holding that, where the plaintiff moved for summary judgment on the defendant's counterclaim for slander per se, there was sufficient evidence to support the defendant's claim where the defamatory statements made by the plaintiff had the capacity to adversely affect the defendant in his profession). In an action for libel or slander per se, malice and damages are deemed presumed by proof of publication, with no further evidence required as to any resulting injury. See Andrews v. Elliot, 109 N.C.App. 271, 274, 426 S.E.2d 430, 432 (1993).

Plaintiffs alleged in their complaint that, the statements by defendants that "Dan Boyce's law firm" had "sued the state" and "charg[ed]" the taxpayers an hourly rate greater "than a police officer's salary" plainly and falsely accused plaintiffs of unethical billing practices in their profession. The complaint alleged that defendants' advertisement was defamatory per se in that it tended to "disparage Boyce & Isley, PLLC and its member attorneys' professional reputation and honesty in billing clients, and states that they engage in unethical conduct[,]" thereby depriving p...