Andrews v. Elliot
| Decision Date | 02 March 1993 |
| Docket Number | No. 9221DC74,9221DC74 |
| Court | North Carolina Court of Appeals |
| Parties | F. Mickey ANDREWS v. Robert M. ELLIOT. |
F. Mickey Andrews, pro se.
Elliott, Pishko, Gelbin & Morgan, P.A. by J. Griffin Morgan, Winston-Salem, for defendant-appellee.
Plaintiff appeals from an order of the trial court filed 26 September 1991, granting defendant's motion to dismiss plaintiff's complaint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6).
On 28 August 1991, plaintiff, a Winston-Salem attorney, filed a complaint alleging that defendant, a licensed attorney, "maliciously, willfully and wantonly made and published slanderous and libelous statements about the Plaintiff to persons other than the Plaintiff by mailing a copy of a letter to the newspaper, the Winston-Salem Chronicle" which was seen and read by at least three persons who worked at the newspaper. Paragraph seven of plaintiff's complaint provides that the statements in the letter included, but are not limited to, the following:
a. [Defendant's] clients intend to file a complaint against [plaintiff] with the North Carolina State Bar.
b. [Defendant] accused [plaintiff] of misleading the reporter by not informing the reporter of vital facts.
c. [Defendant] accused [plaintiff] of lying to the reporter.
d. [Defendant] says the "State Bar thoroughly investigated the issue" (perjury and unethical conduct by Legal Aid lawyers) at [plaintiff's] request.
e. [Defendant] says [plaintiff] has not produced "a shred of evidence" to support charges of fraud and perjury by Legal Aid lawyers in Court proceedings.
f. [Defendant] accuses [plaintiff] of unethical conduct in talking to a reporter.
g. [Defendant] accuses [plaintiff] of criminal conduct in talking to a reporter.
h. [Defendant] says [plaintiff] has committed libel and slander per se.
i. [Defendant] threatens [plaintiff] (apparently with criminal action and civil suit) if [plaintiff] again communicates with the reporter.
j. [Defendant] says his clients will file a complaint against [plaintiff] (for his talking to the reporter) with the North Carolina State Bar.
k. [Defendant] says [plaintiff] has violated Rule 7.7 and other rules of the Rules of Professional Conduct.
According to plaintiff's complaint, defendant allegedly talked to additional individuals and repeated the aforementioned accusations. Plaintiff further alleges that defendant's statements were false and made with actual malice, tended to subject plaintiff to ridicule, contempt, public hatred, and disgrace and to impeach plaintiff in his profession, and charged offenses on the part of plaintiff involving moral turpitude. According to plaintiff's complaint, plaintiff suffered "nervousness, headaches, anxiety, loss of self esteem and depression and other physical injury for which he received medical treatment" as a direct and proximate cause of defendant's statements, as well as pecuniary losses, mental suffering, humiliation, and embarrassment and injury to his reputation. Plaintiff did not attach the alleged defamatory letter or a copy of it as an exhibit to his complaint.
On 13 September 1991, defendant filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On 23 September 1991, defendant filed an answer to plaintiff's complaint, in which he denied the allegations in paragraph seven of plaintiff's complaint regarding the statements made by defendant "to the extent that such allegations are literally or contextually inconsistent with defendant's letter." Defendant also asserted in his answer that the letter was written in the performance of defendant's professional duties as attorney for his clients, and was therefore protected by an absolute or qualified privilege. Defendant's motion to dismiss was heard during the 23 September 1991 session of Forsyth County District Court, The Honorable Margaret L. Sharpe presiding. Judge Sharpe granted defendant's motion to dismiss. Nothing in the record indicates that Judge Sharpe considered anything other than the complaint in ruling on the motion.
______
The sole issue is whether plaintiff's complaint states a claim upon which relief can be granted against defendant for defamation.
A motion made pursuant to Rule 12(b)(6) tests the legal sufficiency of the plaintiff's complaint. Renwick v. The News and Observer Publishing Co., 310 N.C. 312, 315, 312 S.E.2d 405, 408, cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984). Dismissal under Rule 12(b)(6) is proper when on its face the complaint reveals either no law supports the plaintiff's claim or the absence of fact sufficient to make a good claim, or when some fact disclosed in the complaint necessarily defeats the plaintiff's claim. Johnson v. Bollinger, 86 N.C.App. 1, 4, 356 S.E.2d 378, 380 (1987) (citation omitted). A plaintiff's complaint should not be dismissed under Rule 12(b)(6) "unless it affirmatively appears plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim." Id. (citation omitted).
In North Carolina, publications or statements which are susceptible of but one meaning, when considered alone without innuendo, colloquium, or explanatory circumstances, and that tend to "disgrace and degrade the party or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned and avoided" are defamatory per se. Flake v. Greensboro News Co., 212 N.C. 780, 786, 195 S.E. 55, 60 (1938). To be actionable, a defamatory statement must be false and must be communicated to a person or persons other than the person defamed. Morrow v. Kings Dep't Stores, Inc., 57 N.C.App. 13, 20, 290 S.E.2d 732, 736, disc. rev. denied, 306 N.C. 385, 294 S.E.2d 210 (1982). In an action for libel or slander per se, "malice and damages are presumed from the fact of publication and no proof is required as to any resulting injury." Flake, 212 N.C. at 785, 195 S.E. at 59; Morrow, 57 N.C.App. at 20, 290 S.E.2d at 736. The alleged defamatory statement or statements made or published by the defendant need not be set out verbatim in plaintiff's defamation complaint if alleged "substantially in haec verba, or with sufficient particularity to enable the court to determine whether the statement was defamatory." Stutts v. Duke Power Co., 47 N.C.App. 76, 83-84, 266 S.E.2d 861, 866 (1980); accord Morrow, 57 N.C.App. at 21, 290 S.E.2d at 737.
In the instant case, plaintiff in his complaint alleges that defendant mailed a copy of a letter to the Winston-Salem Chronicle and that the letter was "seen and read by at least three persons at the...
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