Clark v. Brown

• Decision Date: 03 July 1990
• Docket Number: No. 8927SC514,8927SC514
• Citation: 393 S.E.2d 134,99 N.C.App. 255
• Court: North Carolina Court of Appeals
• Parties: Robert W. CLARK v. Joseph G. BROWN.

Page 134

393 S.E.2d 134

99 N.C.App. 255

Robert W. CLARK v. Joseph G. BROWN.

No. 8927SC514.

Court of Appeals of North Carolina.

July 3, 1990.

Gillespie, Lesesne & Connette by Edward G. Connette, Charlotte, for plaintiff-appellant.

Lacy H. Thornburg, Atty. Gen. by Norma S. Harrell, Asst. Atty. Gen., Raleigh, for the State.

GREENE, Judge.

In this civil action, plaintiff appeals the trial court's grant of summary judgment for defendant on plaintiff's claims of libel, slander, intentional interference with contract and interference with prospective economic advantage.

The evidence, viewed in the light most favorable to plaintiff, tends to show that plaintiff was employed in December 1984, by defendant district attorney as an assistant district attorney for Gaston County. In the spring of 1986, defendant was engaged in a primary re-election campaign and plaintiff was a friend of defendant's opponent in that election. Plaintiff promised defendant that plaintiff would remain neutral in the primary election. During the week of 28 April 1986, plaintiff was prosecuting at a term of criminal superior court in Gaston County over which Judge Sitton presided, and court ended on 30 April 1986, Wednesday morning. Plaintiff told Judge Sitton that he had nothing "else that was ready to go forward for trial." On Saturday, 3 May 1986, a letter from plaintiff's mother was published in the Gastonia Gazette newspaper in support of defendant's primary opponent. Defendant became aware of the letter sometime before he arrived at the office on the following Monday morning, 5 May 1986. On that morning, defendant called plaintiff into his office and told him to "clean out [his] desk." Plaintiff immediately called the Gastonia Gazette and other media offices, informing them that he had been fired by defendant for what he assumed "was for political reasons." Immediately after talking to plaintiff, a reporter for the Gastonia Gazette called defendant, who told defendant that plaintiff had told the newspaper that plaintiff "had been terminated for political reasons," and defendant told the newspaper that "among other things, that [defendant] had let [plaintiff] go because he was incompetent." On 5 May 1986, the Gastonia Gazette published a news article which stated in pertinent part:

[Plaintiff], 32, an assistant district attorney since December 1984, said he was fired from his $36,100 a year job because he supports [defendant]'s opponent ... in Tuesday's Democratic primary.

. . . . .

But [defendant] says it was job performance that caused him to fire [plaintiff].

"Incompetence," [defendant] said. "Capital I-N-C-O-M-P-E-T-E-N-C-E. Last week I assigned him to superior court. He held court Monday and Tuesday, and he quit about Wednesday at 10 a.m. He said he had nothing further for the court to hear.["]

"He hasn't held a full five days of superior court once since I hired him. He just can't seem to get things done. He tries one case and decides he's through."

Plaintiff instituted suit against defendant on the claims set out above. Defendant answered, denying the claims and asserting the affirmative defense of privilege. Defendant moved for summary judgment, offering defendant's deposition, plaintiff's discovery answers, and affidavits by defendant and two other persons.

Defendant's deposition testimony on cross-examination was:

Q. And then did you spell out the word "incompetent" for him?

A. I may have. I saw the story and the way the story was written, it was written as if I had. I don't recall that I did that, but it sounds like me.

Q. Do you have any reason to disagree with the quote?

A. No, it sounds exactly like something I would do.

Q. Why did you fire [plaintiff]?

A. Because of the remarks that he made in court to Judge Sitton and the fact that he did not have enough cases to continue beyond Wednesday morning.

. . . . .

Q. Did you ever say [plaintiff] was incompetent as an attorney?

A. No. I never made the statement that he was incompetent as an attorney.

Q. Would you ever have said that?

A. No.

After plaintiff left employment at the district attorney's office, he started his own private practice in the county. Defendant instituted a policy requiring that when plaintiff was defense counsel in any criminal case, plaintiff must negotiate directly with defendant. Defendant testified that he was concerned that plaintiff "having worked as an assistant district attorney in our office, might get overly sympathetic reactions from some of the assistants he had worked with and that in all fairness his cases should be handled just like any other lawyer's cases had been handled." By 9 June 1986, plaintiff had closed his Gastonia private law practice and joined the district attorney's office in Buncombe County. Plaintiff offered several affidavits at the summary judgment hearing to show that plaintiff enjoyed an excellent reputation as an assistant district attorney and that the fact that a superior court calendar ended on Wednesday was not incompetence by the prosecuting attorney.

_____

The issues presented are whether summary judgment for defendant was appropriate, based on (I) defendant's affirmative defense of qualified immunity for libel and slander and (II) plaintiff's failure to show a material issue of fact on his claims of interference with contractual relations.

Summary judgment is appropriate when there is no genuine issue of material fact and any party is entitled to judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56(c) (Cum.Supp.1989). The evidence must be viewed in the light most favorable to the non-movant, with the jury resolving questions of credibility. Shuping v. Barber, 89 N.C.App. 242, 244, 365 S.E.2d 712, 714 (1988) (citations omitted). As movant, defendant has the burden of showing at least one of the three grounds justifying summary judgment in his favor: (1) "an essential element of plaintiff's claim is nonexistent ... plaintiff cannot produce evidence to support an essential element of his claim, or ... plaintiff cannot surmount an affirmative defense which would bar the claim." Id. (citations omitted).

I

A Libel and slander

Plaintiff first asserts that defendant's statement was libel per se or slander per se. We agree.

In construing the publication, we are guided by the rule that to be actionable per se, the words:

'must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule

. . . . .

The question always is how would ordinary men naturally understand the publication

. . . . .

[T]he [publication] ... must be ... stripped of all insinuations, innuendo, colloquium, and explanatory circumstances. The article must be defamatory on its face "within the four corners thereof." '

Tyson v. L'Eggs Products, Inc., 84 N.C.App. 1, 12, 351 S.E.2d 834, 840-41 (1987) (citation omitted).

"[F]alse words imputing to a merchant or business man conduct derogatory to his character and standing as a business man 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) (slander per se: Shreve v. Duke Power Co., 97 N.C.App. 648, 650, 389 S.E.2d 444, 446 (1990); libel per se: Ellis v. Northern Star Co., 326 N.C. 219, 223, 388 S.E.2d 127, 130 (1990)). The false words

(1) must touch the plaintiff in his special trade or occupation, and (2) must contain an imputation necessarily hurtful in its effect on his business. That is to say, it is not enough that the words used tend to injure a person in his business. To be actionable per se, they must be uttered of him in his business relation.

Id.

Whe[n] such words are spoken, the law raises a prima facie presumption of malice and a conclusive presumption of legal injury and damage, entitling the victim of the defamation to recover damages, nominal at least, without specific proof of injury or damage.

Badame, 242 N.C. at 756, 89 S.E.2d at 467 (citation omitted).

As here, when defamatory words are spoken with the intent that the words be reduced to writing, and the words are in fact written, the publication is both slander and libel. Bell v. Simmons, 247 N.C. 488, 494, 101 S.E.2d 383, 387 (1958) (defamatory statements made to a newspaper reporter with the intent that the newspaper publish them, which are published, are both slander and libel).

First, we determine as a matter of law that ordinary men would naturally understand defendant's statements to the newspaper reporter as disgracing plaintiff in his profession as an attorney and hurtful to his reputation. "Incompetent" means "[o]f inadequate ability or fitness; not having the requisite capacity or qualification; incapable." Oxford English Dictionary 166 (1st ed. 1971). On its face, the statement has but one meaning, defamatory per se, which degrades plaintiff's legal ability and disgraces him in his capacity as an attorney. Such imputations tend to prejudice plaintiff in his livelihood.

Second, reviewing the evidence in the light most favorable to plaintiff, we determine that plaintiff introduced evidence showing that defendant's words were false, that plaintiff was competent as an attorney, and that termination of superior court after only two days of trial did not show incompetence as a matter of law.

B Qualified privilege

Plaintiff next argues that he introduced evidence showing material issues of fact concerning defendant's affirmative defense of qualified privilege. We agree.

Qualified privilege is a defense for a defamatory publication, which:

grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person.

Stukuls v. State, 42 N.Y.2d 272, 397...