Burton v. NCNB Nat. Bank of North Carolina, 8621SC1039

• Decision Date: 19 May 1987
• Docket Number: No. 8621SC1039,8621SC1039
• Citation: 85 N.C.App. 702,355 S.E.2d 800
• Parties: Elvin O. BURTON v. NCNB NATIONAL BANK OF NORTH CAROLINA and B. Ervin Brown, II.
• Court: North Carolina Court of Appeals

Page 800

355 S.E.2d 800

85 N.C.App. 702

Elvin O. BURTON v. NCNB NATIONAL BANK OF NORTH CAROLINA and B. Ervin Brown, II.

No. 8621SC1039.

Court of Appeals of North Carolina.

May 19, 1987.

James M. Hayes, Winston-Salem and Cahoon and Swisher by Robert S. Cahoon, Greensboro, for plaintiff-appellant.

Smith, Helms, Mulliss & Moore by Benjamin F. Davis, Jr., and Robert H. Slater, Greensboro, for defendant NCNB National Bank of North Carolina.

Bell, Davis & Pitt, P.A. by William Kearns Davis, Winston-Salem, for defendant B. Ervin Brown, II.

GREENE, Judge.

This is a civil action for alleged libel, intentional infliction of emotional distress, "threat of criminal prosecution" and "false light" invasion of privacy. The trial court dismissed plaintiff's cause of action for "false light" invasion of privacy and granted summary judgment for defendants on each of plaintiff's other actions. Plaintiff appeals from the summary judgment.

The issues are: (1) whether plaintiff's appeal should be dismissed for failure to comply with North Carolina Rules of Appellate Procedure, Rule 10(a) and (2) whether summary judgment for defendants was proper.

I

Plaintiff failed to set out any assignments of error in the record. Defendants contend plaintiff's appeal should be dismissed under Rule 10(a) of the Rules Appellate of Procedure.

An appeal from entry of summary judgment presents the question of whether the judgment is supported by the conclusions of law and therefore constitutes an exception to the general requirement of Rule 10(a) that assignments of error must appear in the record. Beaver v. Hancock, 72 N.C.App. 306, 309-10, 324 S.E.2d 294, 297-98 (1985). Therefore, plaintiff's appeal should not be dismissed under Rule 10(a) of the Appellate Rules of Procedure.

II

A

Plaintiff first argues that summary judgment should not have been entered against him because the court had earlier denied defendants' motion to dismiss the actions for failure to state a claim under Rule 12(b) (6) of the Rules of Civil Procedure. N.C.G.S. Sec. 1A-1,l Rule 12(b)(6) (Nov. 1983).

The denial of the motion to dismiss under Rule 12(b)(6) does not prevent the trial court from granting a subsequent motion for summary judgment. Barbour v. Little, 37 N.C.App. 686, 692, 247 S.E.2d 252, 255-56, disc. rev. denied, 295 N.C. 733, 248 S.E.2d 862 (1978). Plaintiff's argument is without merit.

B

Summary judgment is appropriate when there is no genuine issue as to any material fact and any party is entitled to judgment as a matter of law. N.C.G.S. Sec. 1A-1, Rule 56(c) (Nov. 1983).

It is undisputed that, at the time of the alleged libel, plaintiff was the defendant in a lawsuit initiated by defendant NCNB. The suit was for collection of a debt plaintiff had allegedly guaranteed. Defendant Brown, an attorney, represented NCNB in the matter and wrote a letter to plaintiff's attorney concerning the suit. It was the opinion of Brown and NCNB that a financial statement filed by plaintiff with the bank did not accurately reflect plaintiff's financial holdings at the time of its filing. Brown's letter set forth that opinion and further contained this sentence: "I write at the request of the bank to let you know that criminal prosecution under 18 U.S.C. Sec. 1014 as a result of the foregoing described discrepancies remains a viable option which is being given serious consideration." Copies of the letter were sent to two officers of defendant NCNB.

Plaintiff contends the letter libeled him in his business and the court erred in granting defendants' summary judgment on plaintiff's cause of action for libel. We hold that defendants are protected by an absolute privilege. Therefore, the court's summary judgment regarding the cause of action for libel must be affirmed.

The general rule in North Carolina is that a defamatory statement is absolutely privileged if it was "made in due course of a judicial proceeding," even if it was made with express malice. Jarman v. Offutt, 239 N.C. 468, 472, 80 S.E.2d 248, 251 (1954).

Our courts have held that statements are "made in due course of a judicial proceeding" if they are submitted to the court presiding over litigation or to the government agency presiding over an administrative hearing and are relevant or pertinent to the litigation or hearing. See Scott v. Veneer Co., 240 N.C. 73, 81 S.E.2d 146 (1954) (statement made in a judicial pleading); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954) (a lunacy hearing is a judicial proceeding within the rule); Williams v. Congdon, 43 N.C.App. 53, 257 S.E.2d 677 (1979) (psychiatrist's report submitted to court). See also Ramsey v. Cheek, 109 N.C. 270, 273, 13 S.E. 775, 775 (1891) (setting out the general rule and including statements of the judge from the bench and statements of a witness on the stand). If the defamatory statement is "so related to the subject matter of the controversy that it may become the subject of inquiry in the course of the trial," the statement is relevant to the judicial proceeding. Whether the statement is relevant is a matter of law for the courts. Scott, 240 N.C. at 76, 81 S.E.2d at 149.

Our courts have not addressed the question of whether out-of-court communications between parties or their attorneys during the course of a judicial proceeding are "made in due course of a judicial proceeding" and, therefore, absolutely privileged.

Absolute privilege is restricted to cases in which the public has a strong interest in allowing the defendant to "speak out his mind fully and freely." Ramsey, 109 N.C. at 273, 13 S.E. at 775. If the privilege were extended to out-of-court communications between parties to a judicial proceeding or their attorneys, it would serve the same public interest it serves by making statements which are submitted to the court privileged. See Restatement (Second) of Torts Sec. 586, comment a at 247 (1977). To fail to extend the absolute privilege to out-of-court statements which are between parties to an action or their attorneys and which are relevant to the proceeding would hinder the disclosure of facts necessary to the disposition of the suit and, thus, discourage settlement. Therefore, if an out-of-court statement is (1) between parties to a judicial proceeding or their attorneys and (2) relevant to the proceeding, it is absolutely privileged and not actionable on grounds of defamation.

At the time Brown wrote the letter, NCNB and plaintiff were parties in an action brought by NCNB to recover a debt from plaintiff as its guarantor. Brown represented NCNB in the action and addressed the letter to plaintiff's counsel. Copies of the letter were sent only to NCNB officials intimately involved in the action to recover on the debt. The financial statement referred to in the allegedly defamatory letter was part of the bank's requirements in order to give a loan. Any discrepancies in it were relevant to the action on the debt. We do not find, in the words of Scott v. Veneer Co., that the letter is "so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety." 240 N.C. at 76, 81 S.E.2d at 149....