Ausley v. Bishop

• Decision Date: 18 May 1999
• Docket Number: No. COA98-922.,COA98-922.
• Citation: 515 S.E.2d 72,133 NC App. 210
• Parties: Andrew H. AUSLEY, d/b/a Ausley Appraisal Services, Plaintiff-Appellee, v. Bryan M. BISHOP, Defendant-Appellant.
• Court: North Carolina Court of Appeals

515 S.E.2d 72

133 NC App. 210

Andrew H. AUSLEY, d/b/a Ausley Appraisal Services, Plaintiff-Appellee, v. Bryan M. BISHOP, Defendant-Appellant.

No. COA98-922.

Court of Appeals of North Carolina.

May 18, 1999.

Haywood, Denny & Miller, L.L.P., by John R. Kincaid and Thomas H. Moore, Durham, for plaintiff-appellee.

Randolph M. James, P.C., by Randolph M. James and David E. Shives, Winston-Salem, for defendant-appellant.

EDMUNDS, Judge.

Plaintiff is a state-certified appraiser of real estate. Defendant, seeking to become a certified appraiser, was employed by plaintiff in November 1994 as an apprentice, a requisite step in defendant's training and certification process. Between November 1994 and April 1997, defendant prepared and signed appraisal reports, as required by the North Carolina Appraisal Board (the Board). For each report, defendant also prepared and retained a log sheet. The Board required that these log sheets be signed and stamped by a supervising appraiser to certify that each apprentice's report was completed under his or her general supervision.

In November 1994, plaintiff signed and stamped the first report and log sheet prepared by defendant. Plaintiff instructed defendant to let subsequent reports accumulate, however, and plaintiff would sign them simultaneously. In June 1996, defendant passed the State registered trainee examination. In April 1997, defendant was qualified to receive a license, subject only to plaintiff forwarding the supervising appraiser's certification. However, on 12 April 1997, at a meeting of the parties, plaintiff conditioned his certification of defendant's reports upon defendant's signing a newly-drafted employment contract, which included a provision relating to compensation and a non-compete clause. After examining the contract and having an attorney review it, defendant, claiming to have "no other choice," signed on 14 April 1997. Plaintiff then signed and stamped defendant's log sheets, and on 30 April 1997, the State issued defendant his official license.

On 1 June 1997, plaintiff opened a new branch office, which was to be run by defendant, and placed a new trainee there to work under defendant's supervision. It was only at this point that defendant began receiving the compensation guaranteed him pursuant to the April 14 contract. On 22 September 1997, plaintiff called for another meeting with defendant. During this meeting, after expressing concerns about misspellings and outdated data in some of defendant's reports, plaintiff proposed renegotiating their contract under terms that would result in decreased income to defendant. Defendant declined to agree to the new terms, and the employment relationship between the parties ended. On 24 September 1997, defendant began to operate his own appraisal business.

On 13 October 1997, plaintiff filed a complaint against defendant alleging breach of contract and unfair and deceptive trade practices. On 17 November 1997, defendant filed an answer and counterclaim, asserting nine claims against plaintiff: (1) breach of oral contract, (2) breach of written contract, (3) fraudulent misrepresentation, (4) negligent misrepresentation, (5) unfair and deceptive trade practices, (6) intentional infliction of emotional distress, (7) malicious prosecution, (8) libel, and (9) slander. On 5 December 1997, defendant filed a motion for partial summary judgment against plaintiff, which was granted on 11 February 1998. This summary judgment order has not been appealed. On 23 April 1998, plaintiff filed a motion for summary judgment as to defendant's counterclaim, which was granted on 11 May 1998. From the judgment dismissing his counterclaim, defendant appeals.

A trial court's grant of summary judgment is fully reviewable by this Court. See Va. Electric and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986). "The standard of review for whether summary judgment is proper is whether the trial court properly concluded that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law." Phelps v. Spivey, 126 N.C.App. 693, 696, 486 S.E.2d 226, 228 (1997) (citation omitted). The record is to be viewed in the light most favorable to the non-movant, giving it the benefit of all inferences reasonably arising therefrom. See Averitt v. Rozier, 119 N.C.App. 216, 458 S.E.2d 26 (1995). After reviewing each claim in accordance with this standard, we conclude that the trial court correctly granted summary judgment as to most of defendant's claims; however, we also conclude that summary judgment was improper as to one claim and as to parts of two others, and reverse in part and remand for further proceedings.

I. SLANDER

Defendant contended at oral argument that his strongest claim was slander. We agree. Defendant alleged in his counterclaim that plaintiff committed slander by communicating to defendant's personal mortgage lender statements to the effect that defendant had committed loan fraud. This Court has held that "[a]mong statements which are slanderous per se are accusations of crimes or offenses involving moral turpitude, defamatory statements about a person with respect to his trade or profession, and imputation that a person has a loathesome [sic] disease." Gibby v. Murphy, 73 N.C.App. 128, 131, 325 S.E.2d 673, 675 (1985). When a statement falls into one of these categories, a prima facie presumption of malice and a conclusive presumption of legal injury and damage arise; allegation and proof of special damages are not required. See Donovan v. Fiumara, 114 N.C.App. 524, 528, 442 S.E.2d 572, 575 (1994).

Defendant avers that the statements allegedly made by plaintiff adversely affected defendant's business and personal reputation. Plaintiff admitted in his deposition that he made statements that impeached defendant in his trade. During a line of questions pertaining to a form signed by plaintiff and submitted by defendant to mortgage broker Southern Fidelity to finance defendant's own home, plaintiff was asked, "Did you suggest, infer, or imply to Robert [Phillips] at Southern Fidelity that your signature was procured by fraud or some other unlawful means on that appraisal report?" Plaintiff responded, "Correct." However, other questioning revealed that there was no evidence that the signature had been obtained improperly; instead, plaintiff admitted voluntarily signing the form without reading it. Further, plaintiff also admitted telling the same Robert Phillips at Southern Fidelity that "Mr. Bishop had not been truthful about his income in qualifying for the loan that Southern Fidelity brokered, arranged or gave to the Bishops," when there was evidence that plaintiff previously had verified defendant's income to Southern Fidelity. Additionally, defendant stated in his affidavit that "[plaintiff] contacted several of my clients and potential clients and advised them, untruthfully, that I had engaged in various unethical conduct." Because defendant was launching his own business as an appraiser, plaintiff's incorrect statements to defendant's clients and potential clients undoubtedly had the capacity to harm defendant in his trade or profession.

In a second episode, plaintiff admitted reporting to police that defendant had stolen client files. The evidence to support plaintiff's report was that defendant was seen leaving his old office at plaintiff's business with a box, and that later a Rolodex was no longer on defendant's desk, and files containing defendant's resumes and sample appraisal files were also missing from a file cabinet. Although the investigation subsequently was dropped without any charges being brought, plaintiff admitted communicating to at least one person at Piedmont Home Equity that he suspected defendant had taken files, and had called the police. Again, this statement to a potential client of defendant was capable of harming him in his trade or profession. We therefore conclude that defendant has "`forecast sufficient evidence of all essential elements of [his] claim[ ]' to make a prima facie case at trial" to survive plaintiff's motion for summary judgment. Camalier v. Jeffries, 340 N.C. 699, 711, 460 S.E.2d 133, 138 (1995) (quoting Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992)) (second alteration in original). We reverse as to this issue and remand for further proceedings.

II. UNFAIR AND DECEPTIVE TRADE PRACTICES

Defendant's next claim is that the trial court erred in granting plaintiff's summary judgment motion as to defendant's claim that plaintiff engaged in unfair and deceptive trade practices. Defendant's counterclaim alleged events happening both while defendant was working with plaintiff and after the employment relationship terminated. In granting plaintiff's motion for summary judgment, the trial judge found as a matter of law that defendant had not made out a claim. We disagree in part, concluding that defendant's claim as to plaintiff's activities after they separated should have been submitted to a jury.

This Court has held that "employer-employee relationships do not fall within the intended scope of [N.C. Gen.Stat. § 75-1.1]... [because] ... [e]mployment practices fall within the purview of other statutes adopted for that express purpose." Buie v. Daniel International, 56 N.C.App. 445, 448, 289 S.E.2d 118, 119-20, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982). Therefore, any portion of defendant's claim for unfair and deceptive trade practices relating to events occurring before 23 September 1997 were properly dismissed.

However, upon termination of the employer-employee relationship, the parties became business competitors. N.C. Gen.Stat. § 75-1.1(a) (1994) declares: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." Defendant alleged that he undertook...