Griffin v. Holden

• Decision Date: 07 November 2006
• Docket Number: No. COA05-1608.,COA05-1608.
• Court: North Carolina Court of Appeals
• Parties: Michael GRIFFIN, Plaintiff-Appellant, v. Michael HOLDEN, Defendant-Appellee.

636 S.E.2d 298

Michael GRIFFIN, Plaintiff-Appellant, v. Michael HOLDEN, Defendant-Appellee.

No. COA05-1608.

Court of Appeals of North Carolina.

November 7, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by plaintiff from judgment entered 6 June 2005 by Judge John R. Jolly, Jr. in Moore County Superior Court. Heard in the Court of Appeals 16 August 2006.

Van Camp, Meachem & Newman, PLLC, by Thomas M. Van Camp, Pinehurst, for plaintiff-appellant.

Garris Neil Yarborough, Fayetteville, for defendant-appellee.

ELMORE, Judge.

Michael Griffin (plaintiff) brought an action against Michael Holden (defendant) for libel per se, libel per quod, and intentional interference with contract. Defendant filed a motion for summary judgment, which the trial court granted. Plaintiff appeals. After careful review of the record, we affirm the trial court's ruling.

Beginning in July 1994, plaintiff was employed as Deputy County Manager/Finance Officer of Moore County. In that same year, the Moore Parks Foundation (the Foundation) was created to raise money for the construction of Hillcrest Park. The Foundation was not a department or agent of the county, but the funds donated to the Foundation were transferred to the county and held in the Hillcrest Park Capital Project Fund (the fund). Beginning in 1998, the county began to match the donations collected by the Foundation and, between 1998 and 2000, contributed $190,000.00 to the fund.

Hillcrest Park was substantially complete by 2001, with $63,000.00 still remaining in the fund. In July 2002, representatives of the Foundation discussed with plaintiff the return of $43,617.00 of the unspent donations. The Foundation based this amount on a pro rata calculation of the Foundation's contribution to the fund (roughly 70%). According to Foundation representatives, the remaining balance, roughly $19,000.00, belonged to the county. Plaintiff conferred with County Manager David McNeil about the transaction, and then, in his capacity as Finance Officer of Moore County, plaintiff authorized $43,617.00 to be returned to the Foundation.

County Manager McNeil resigned in November 2002. From December 2002 to May 2003, plaintiff served as Interim County Manager of Moore County. In May 2003, Steven Wyatt (Wyatt) was named permanent County Manager of Moore County, and plaintiff resumed his duties as Deputy County Manager/Finance Officer.

In March 2004, defendant, the Chairman of the County Board of Commissioners, asked Wyatt to look into paving the entranceway to Hillcrest Park. Defendant warned Wyatt that "somebody told [him] that some money got moved around." Wyatt asked plaintiff about the funds, and plaintiff sent Wyatt an email message detailing the available funds and the transfer to the Foundation. Plaintiff told Wyatt in the email that "some of the [fund] money had been given back to the parks foundation." When Wyatt asked specifically about the process, plaintiff informed him that a budget amendment had been approved by the Board. Wyatt asked plaintiff for a copy of the budget amendment, but did not hear back from plaintiff for "a couple of weeks, maybe 10 days, 14 days." Wyatt then asked Carol Thomas, the clerk, to get him a copy of the budget amendment. Thomas returned and said that she could not find the amendment. Wyatt asked John Frye about the budget amendment, and Frye sent an email saying that "staff had done [the transfer of money to the Foundation]." Wyatt believed that plaintiff had lied to him about the budget amendment. Wyatt contacted David Lawrence at the University of North Carolina Chapel Hill School of Government for advice. After hearing Wyatt's account of the transfer, Wyatt stated that Lawrence said "that was an unauthorized transaction."

At this point, Wyatt directed the county attorney to retain an outside firm to conduct an "arm's length" examination of the $43,000.00 transaction. "[T]he county attorney's office entered into an agreement with Dixon Hughes to audit this particular transaction." According to then County Attorney Lesley Moxley, "it was to be an independent audit."

On 5 May 2004, the auditors presented their findings to the Board of Commissioners in closed session. The auditors reported to the Board that all of the remaining $63,000.00 of the fund had belonged to Moore County, meaning that plaintiff was required to obtain Board approval before transferring funds to any third party, including the Foundation. Plaintiff had not obtained Board approval before making the transfer.

The Board of Commissioners decided to release the consulting report to the public. Immediately after the closed session, defendant, as chairman, was asked several questions by the media. Some of his responses were later published in local newspapers.

On 19 May 2004, Wyatt gave plaintiff the opportunity to submit his resignation. Plaintiff elected not to resign. On 20 May 2004, a article appeared in The Fayetteville Observer, publishing the results of the consulting report released by the Board and containing a series of statements made by defendant regarding the money transferred to the Foundation. On 21 May 2004, another article appeared in The Pilot, containing an additional statement made by defendant regarding the transfer. The relevant statements are as follows:

Fayetteville Observer, 20 May 2004:

(a) "Today we are making sure that procedures and policies are in place to make sure that the money that belongs to taxpayers of Moore County are properly in place."

(b) "If you do something like this, you do it for a good reason. And there doesn't seem to be a good reason."

(c) "It was Moore County money and they took it and gave it to someone outside the control of Moore County."

(d) "The Board authorized its lawyer, Lesley Moxley, to deliver the audit report to the District Attorney's Office."

(e) "It appears to me that this is the kind of mischief that we were trying to stop the lame-duck Board of Commissioners from carrying out."

(f) "My belief here, today, is there are some County employees that were doing things and moving money around for various and sundry motives."

The Pilot, 21 May 2004:

(g) "We told you so, I said at the time that they would leave scorched earth behind them going out the door."

On 28 May 2004, Wyatt issued a letter to plaintiff terminating his employment for "grossly inefficient job performance" and "unacceptable personal conduct."

On 1 July 2004, plaintiff filed a complaint against defendant for libel per se and libel per quod, alleging both special and punitive damages. Plaintiff also filed an action against defendant for intentional interference with contract, alleging that defendant orchestrated plaintiff's termination by arranging for an unfavorable audit/consulting report to be presented to the Board of Commissioners. On 25 April 2005, defendant filed a motion for summary judgment on all claims. The trial court granted defendant's motion for summary judgment. Plaintiff now appeals, contending that the trial court erred by granting defendant's motion for summary judgment, on the grounds that there existed genuine issues of material fact regarding all of his claims. Plaintiff's arguments are without merit, and we affirm the trial court's grant of summary judgment.

Summary judgment is appropriate when all the evidentiary materials before the court "show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c)(2005). "The moving party has the burden of establishing the absence of any genuine issue of material fact, and the evidence presented should be viewed in the light most favorable to the nonmoving party." Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999) (citing Holley v. Burroughs Wellcome Co., 318 N.C. 352, 355-56, 348 S.E.2d 772, 774 (1986); Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)). "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim...." Bolick v. Bon Worth, Inc., 150 N.C.App. 428, 429, 562 S.E.2d 602, 603 (2002) (quoting Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)). Once defendant meets this burden, plaintiff must "produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial." Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp., ___ N.C.App. ___, ___, 624 S.E.2d 380, 383 (2006) (quoting Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).

Generally, to make out a prima facie case for defamation, "plaintiff must allege and prove that the defendant made false, defamatory statements of or concerning the plaintiff, which were published to a third person, causing injury to the plaintiff's reputation." Smith-Price v. Charter Behavioral Health Sys., 164 N.C.App. 349, 356, 595 S.E.2d 778, 783 (2004) (quoting Tyson v. L'Eggs Prods., Inc., 84 N.C.App. 1, 10-11, 351 S.E.2d 834, 840 (1987)). Libel is generally divided into three classes:

(1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous, which are termed libels per quod.

Renwick v. News & Observer Pub. Co., 310 N.C. 312, 316, 312 S.E.2d 405, 408 (1984) (quoting Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979)). Plaintiff brings two actions for libel: libel per se and libel per quod.

As an initial matter, we must determine "[w]hether a publication is one of the type that properly may be deemed libelous per se." Ellis v. Northern...