Bennett v. News and Observer Publishing Company, No. COA08-1212 (N.C. App. 7/7/2009)

• Decision Date: 07 July 2009
• Docket Number: No. COA08-1212,COA08-1212
• Parties: CAROL BENNETT, Plaintiff, v. NEWS AND OBSERVER PUBLISHING COMPANY, d/b/a <I>The News & Observer,</I> Defendant.
• Court: North Carolina Court of Appeals

Page 1

Unpublished Opinion

CAROL BENNETT, Plaintiff, v. NEWS AND OBSERVER PUBLISHING COMPANY, d/b/a The News & Observer, Defendant.

No. COA08-1212

Court of Appeals of North Carolina

Filed: July 7, 2009.

This case not for publication

Wake County, No. 06 CVS 14229.

Appeal by plaintiff from orders entered 14 December 2006, 21 February 2007, 19 July 2007, and 9 October 2007 by Judge Donald W. Stephens; 18 December 2006 by Judge Carl R. Fox; 19 October 2007 by Judge Ripley Rand; and 10 October 2007, 26 November 2007, 4 December 2007, and 4 February 2008 by Judge Kenneth C. Titus in Wake County Superior Court. Appeal by defendant from an order entered 4 February 2008 by Judge Kenneth C. Titus in Wake County Superior Court. Heard in the Court of Appeals 21 April 2009.

Carol Dalenko, Pro se.

Everett Gaskins Hancock & Stevens, LLP, by Hugh Stevens, for defendant-appellee.

JACKSON, Judge.

Carol Bennett, now Carol Dalenko, ("plaintiff") appeals the 10 October 2007 order in her defamation lawsuit against News and Observer Publishing Co. ("defendant") allowing summary judgment in defendant's favor, and other associated orders of the trial court. Defendant cross-appeals the 4 February 2008 order denying, in part, its motion for attorney fees. For the reasons stated below, we affirm in part, and reverse and remand in part.

On 4 May 2004, plaintiff filed a federal civil rights lawsuit against defendant and others. On 11 May 2004, defendant published a news article about the suit. Plaintiff made a written request for a retraction of the article, but no retraction was made. On 11 May 2005, plaintiff filed a complaint against defendant for defamation. Plaintiff took a voluntary dismissal without prejudice of that action on 27 September 2005 pursuant to Rule 41 of the North Carolina Rules of Civil Procedure.

On or about 29 August and 12 September 2006, plaintiff again made written requests that defendant retract the article. Defendant did not do so. Plaintiff filed the instant action against defendant on 27 September 2006. Her complaint alleged that the article made statements tending to "disgrace and degrade the plaintiff and to hold her out to public hatred, ridicule, and contempt." These statements included:

(a) That plaintiff is banned from "filing anything in the local trial courts without a lawyer" by a "gatekeeper" order issued against her in June 2001 for repeatedly abusing the legal process;

(b) That plaintiff "had been involved in at least 18 lawsuits the previous seven years" before June 2001;

(c) That the state Court of Appeals "rejected" plaintiffs appeal from the "gatekeeper" order, and others, citing her "history of filing frivolous lawsuits" (d) That plaintiff filed an application in 2003 to extend the deadline for a lawsuit against defendant that its lawyer said "a lawyer had not certified" as "required" by the "gatekeeper" order, and then plaintiff "missed" the filing deadline;

(e) That plaintiff "seeks money" from each of the 12 defendants in her federal lawsuit, accusing them of "undertaking cooperative efforts amongst each other to harass, intimidate, and threaten the Plaintiff and anyone on her behalf."

Defendant filed its answer on 11 October 2006.

In the ensuing months, the parties filed several motions and in response the trial court issued several orders from which plaintiff now appeals:

(1) On 12 December 2006 defendant filed a motion for a protective order to prevent plaintiff from deposing its counsel. Plaintiff countered on 14 December 2006 with a motion to compel the deposition. Senior Resident Superior Court Judge Donald W. Stephens ("Judge Stephens") issued an order on 14 December 2006 assigning Judge Carl R. Fox ("Judge Fox") to hear these motions. On 18 December 2006, Judge Fox allowed defendant's motion for protective order, impliedly denying plaintiff's motion to compel. Plaintiff appeals both orders.

(2) Defendant filed a motion for summary judgment on 1 February 2007. Plaintiff filed affidavits and exhibits in opposition to the motion on 7 September 2007. The matter was heard on 10 September 2007. On 13 September 2007, plaintiff filed an objection to entry of a summary judgment order out of session. The motion for summary judgment was allowed by order filed 10 October 2007. Plaintiff appeals the order.

(3) On 9 February 2007, while the summary judgment motion was pending, plaintiff filed a motion to extend the time for discovery. The motion was denied by order filed 21 February 2007. On 12 September 2007, plaintiff filed a motion to reopen discovery. That motion was denied by order filed 9 October 2007. Plaintiff appeals both orders.

(4) On 19 July 2007, Judge Stephens issued an order assigning Judge Kenneth C. Titus ("Judge Titus") to "preside over all aspects of [this] case through final judgment." Plaintiff appeals this order.

(5) On 19 October 2007, plaintiff filed a motion to appeal as an indigent. That motion was denied by order filed 19 October 2007. Plaintiff filed another motion to appeal as an indigent on 10 December 2007. The second such motion was denied by order filed 17 December 2007. Plaintiff appeals.¹

(6) On 22 October 2007, plaintiff filed a motion to vacate the summary judgment order. The motion was denied by order filed 4 December 2007. Plaintiff appeals.

(7) Defendant filed a motion for attorney fees and sanctions on 29 October 2007. The matter was heard on 26 November 2007. On 3 December 2007, plaintiff filed an objection to entry of an order out of session on the matter. The trial court denied defendant's motion as to sanctions on 4 December 2007. On 4 February 2008, the trial court filed its order awarding attorney fees. Plaintiff appeals. Defendant appeals the portion of the order denying attorney fees for the period 27 September 2006 to 10 October 2007.

(8) Plaintiff filed a motion to disqualify Judge Titus on 26 November 2007. The motion was denied by order filed 26 November 2007. Plaintiff appeals.

On 27 June 2001, Judge Narley Cashwell ("Judge Cashwell") imposed sanctions in an unrelated case in excess of $27,000.00 upon plaintiff and decreed:

5. So long as [plaintiff] does not qualify as an indigent pursuant to N.C.G.S. 1-110, [she] shall not file, or attempt to file, any documents with the Office of the Clerk of Superior Court of Wake County unless such document contains a certification by an attorney licensed under the laws of the State of North Carolina to practice law in North Carolina that in the opinion of that attorney the document complies with Rule 11 of the Rules of Civil Procedure. The certification shall also contain a recitation that the attorney has read and is aware of the requirements of this Order. A failure to comply with the certification requirement as set forth herein shall result in the dismissal or striking of the pleading or pleadings and the denial of the motion or motions.

6. The restrictions contained herein shall be as to all filings in Wake County, not just initial filings.

7. Violation of this Order by [plaintiff], or anyone on her behalf, shall be punishable by criminal and/or civil [contempt]. (Emphasis added.)

This "gatekeeper order" stated that special limitations were required to be placed on plaintiff's access to the Wake County courts because of her "repeated abuse of legal process."

This Court repeatedly has affirmed the validity of this "gatekeeper order." See Dalenko v. Peden Gen. Contr., Inc., ___ N.C. App. ___, ___, 676 S.E.2d 625, 633 (2009) (noting that although an attorney originally had provided the required certification, that certification subsequently was revoked such that an amended complaint not filed with the required certification was properly dismissed); Estate of Dalenko v. Monroe, ___ N.C. App. ___, 676 S.E.2d 670 (2009), 2009 WL 1383333, at *6 (unpublished) ("[T]he language of the Gatekeeper Order . . . clearly bars Ms. Dalenko from filing, in a pro se capacity, any document with the Office of the Clerk of Wake County Superior Court without first obtaining a Rule 11 certification from an attorney in all matters due to her repeated and substantial abuse of the Wake County Court system." (emphasis added)); Bennett v. News & Observer Publ'g Co., 167 N.C. App. 370, 605 S.E.2d 267 (2004), 2004 WL 2793247, at *2 (unpublished) ("Judge Cashwell's order . . . was appealed by plaintiff to this Court and her appeal was dismissed. . . . As plaintiff has exhausted all avenues of appeal, including to the United States Supreme Court, and since the Wake County Superior Court had jurisdiction over the subject matter in the earlier action, Judge Cashwell's order is not subject to collateral attack." (internal citation omitted)), appeal dismissed, 359 N.C. 320, 611 S.E.2d 170 (2005).

Pursuant to the North Carolina Rules of Appellate Procedure, "review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, . . . and any items filed with the record on appeal pursuant to Rule 9(c) and 9(d)." N.C. R. App. P. 9(a) (2007). "It is the duty of the appellant to ensure that the record is complete." Hicks v. Alford, 156 N.C. App. 384, 389, 576 S.E.2d 410, 414 (2003) (citing State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983)).

Upon the record before this Court, of the documents plaintiff filed with the superior court in this case and relevant to this appeal, only two were accompanied by Rule 11 certifications pursuant to the "gatekeeper order" — the complaint and the motion to compel discovery. Absent this certification, the trial court was authorized by the "gatekeeper order" to dismiss or strike any non-compliant pleading or pleadings and deny any non-compliant motion or motions.

Included in the plethora of documents plaintiff filed without accompanying Rule 11 certifications were her three notices of appeal. Although the trial court was authorized by the "gatekeeper order" to strike these non-compliant notices of appeal, it did not elect...