Isley v. Cooper

• Decision Date: 03 May 2011
• Docket Number: No. COA10–243.,COA10–243.
• Citation: 710 S.E.2d 309
• Court: North Carolina Court of Appeals
• Parties: BOYCE & ISLEY, PLLC, Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, Plaintiffs,v.Roy A. COOPER, III, the Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, Defendants.

710 S.E.2d 309

BOYCE & ISLEY, PLLC, Eugene Boyce, R. Daniel Boyce, Philip R. Isley, and Laura B. Isley, Plaintiffs,

v.Roy A. COOPER, III, the Cooper Committee, Julia White, Stephen Bryant, and Kristi Hyman, Defendants.

No. COA10–243.

Court of Appeals of North Carolina.

May 3, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendants from order entered 8 May 2009 by Judge W. Osmond Smith, III in Wake County Superior Court. Heard in the Court of Appeals 1 September 2010.

Boyce & Isley, PLLC, Raleigh, by G. Eugene Boyce and R. Daniel Boyce; Patterson Dilthey, LLP, Raleigh, by Ronald C. Dilthey; and Blanchard, Miller, Lewis & Isley, PA, Raleigh, by Philip R. Isley, for Plaintiffs–Appellees.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Raleigh, by Jim W. Phillips, Jr. and Charles E. Coble; and Smith Moore Leatherwood, LLP, Greensboro, by Alan W. Duncan, Allison O. Van Laningham, and Stephen M. Russell, Jr., for Defendants–Appellants.Everett, Gaskins, Hancock & Stevens, Raleigh, by Hugh Stevens, for Amicus The North Carolina Press Foundation, Inc.

BEASLEY, Judge.

Defendants appeal from a trial court order denying their motion for summary judgment. After a review of the record evidence and relevant authority, we affirm the trial court's order.

The underlying facts of this appeal have been discussed at length in Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 568 S.E.2d 893 (2002) ( “ Boyce I”) and Boyce & Isley, PLLC v. Cooper, 169 N.C.App. 572, 611 S.E.2d 175 (2005) (“ Boyce II”). The relevant factual and procedural background is as follows: In 2000, Defendant, Roy A. Cooper, III and Daniel Boyce, respectively, sought election to the Office of North Carolina Attorney General. Dan Boyce ran in opposition to Cooper. Beginning in late October 2000, the following television advertisement was broadcasted throughout North Carolina:

I'm Roy Cooper, candidate for Attorney General, and I sponsored this ad.

....

Dan Boyce—his law firm sued the state, charging $28,000 an hour in lawyer fees to the taxpayers.

The Judge said it shocks the conscience.

Dan Boyce's law firm wanted more than a police officer's salary for each hour's work.

Dan Boyce, wrong for Attorney General.

On 22 November 2000, Plaintiffs filed suit raising, in relevant part, defamation per se and unfair and deceptive trade practices causes of action against Defendants. In their complaint Plaintiffs alleged that:

[t]he Defendants conspired and acted in concert to publish knowingly false words defaming Boyce & Isley, PLLC, the member attorneys of Boyce & Isley, PLLC and Dan Boyce, as candidate for the position of North Carolina Attorney General. Said spoken and written words intentionally placed in the negative attack ad were known by Defendants to be false and defamatory at the time they were made, and were made with reckless disregard for whether they were true [or] false.

On 6 April 2000, the trial court granted a motion to dismiss made by Defendants pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiffs appealed from the trial court's order. In Boyce I our Court reversed the portion of a trial court order that dismissed Plaintiffs' defamation and unfair and deceptive trade practices causes of action, holding that “[t]he allegations in plaintiffs' complaint sufficiently pled their claim of defamation by defendants to overcome a Rule 12(b)(6) motion to dismiss.” Boyce I, 153 N.C.App. at 35, 568 S.E.2d at 901. Both the Supreme Court of North Carolina and the United States Supreme Court declined to hear Defendants' appeal from our decision in Boyce I.

On remand from Boyce I, Defendants answered Plaintiffs' complaint raising several constitutional defenses and moved for judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure. Boyce II, 169 N.C.App. at 573, 611 S.E.2d at 176. The trial court denied Defendants' motion for judgment on the pleadings and Defendants appealed. Id. In Boyce II, dismissing Defendant's appeal as interlocutory, our Court held that “[D]efendants have failed to carry their burden of showing that this case affects a substantial right which will be lost if the substance of this appeal is not heard now.” Id. at 578, 611 S.E.2d at 179. On 15 April 2009, following a second remand to the trial court, Defendants moved for summary judgment arguing that no genuine issues of material fact existed with respect to Plaintiffs' defamation and unfair and deceptive trade practices cause of action. On 8 May 2009, the trial court denied Defendants' motion for summary judgment as to Roy A. Cooper, III, The Cooper Committee, and Julia White. Defendants filed their notice of appeal to this Court on 11 May 2009. On appeal, Defendants argue that: (I) “the trial court erred by treating obiter dictum from a prior appellate decision as law of the case;” (II) “the trial court erred by denying [their] motion for summary judgment because Plaintiffs cannot prove the political ad is false;” (III) “The trial court erred by denying [their] motion for summary judgment because Plaintiffs cannot prove Defendants acted with actual malice;” (IV) “the trial court erred by denying [their] motion for summary judgment as to all Plaintiffs other than Dan Boyce because they cannot prove [that] the political ad was ‘of and concerning’ them;” and (V) “the trial court erred by denying [their] motion for summary judgment because Plaintiffs cannot establish liability under chapter 75.”

Interlocutory Order and Motion to Dismiss

By motion filed with this Court, Plaintiffs seek to dismiss Defendants' appeal from the denial of the trial court's summary judgment order.¹ Plaintiffs argue that Defendants' appeal from the order is “interlocutory” and “premature.” We disagree.

Generally, interlocutory trial court orders are not immediately appealable to this Court. Duval v. OM Hospitality, LLC, 186 N.C.App. 390, 392, 651 S.E.2d 261, 263 (2007). “An interlocutory order or judgment is one which is ‘made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.’ ” Carcano v. JBSS, LLC, 200 N.C.App. 162, 167, 684 S.E.2d 41, 47 (2009) (quoting Bob Timberlake Collection, Inc. v. Edwards, 176 N.C.App. 33, 37, 626 S.E.2d 315, 320 (2006)). Our Court has recognized that an order denying a litigant's request for summary judgment is interlocutory in nature. McCallum v. N.C. Coop. Extension Serv., 142 N.C.App. 48, 542 S.E.2d 227 (2001). While immediate appeals from interlocutory orders are generally impermissible, there are two exceptions:

First, a party may appeal where the trial court enters a final judgment with respect to one or more, but less than all of the parties or claims, and the court certifies the judgment as immediately appealable under Rule 54(b) of the North Carolina Rules of Civil Procedure. A party may also appeal an interlocutory order if it affects a substantial right and will work injury to the appellant if not corrected before final judgment.

Romig v. Jefferson–Pilot Life Ins. Co., 132 N.C.App. 682, 685, 513 S.E.2d 598, 601 (1999) (internal quotations and citations omitted). “[I]t is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal....” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 254 (1994).

In the present case, the trial court's order affects a substantial right belonging to Defendants. Our Courts apply a two-step test to determine whether an interlocutory order affects a substantial right and is therefore immediately appealable. Goldston v. American Motors Corp., 326 N.C. 723, 392 S.E.2d 735 (1990). “[T]he right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment.” Id. at 726, 392 S.E.2d at 736. Whether a substantial right is affected depends upon the particular facts, circumstances, and procedural context presented in each case. Estrada v. Jaques, 70 N.C.App. 627, 642, 321 S.E.2d 240, 250 (1984); Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

Our Courts have recognized that because a misapplication of the actual malice standard when considering a motion for summary judgment “would have a chilling effect” on a defendant's right to free speech, a substantial right is implicated. Priest v. Sobeck, 357 N.C. 159, 579 S.E.2d 250 (2003) ( per curiam adoption of dissent 153 N.C.App. 662, 670–71, 571 S.E.2d 75, 80–81 (2002) (Greene, J., dissenting)). In Boyce II, our Court addressed this issue as it related to Defendants' motion for judgment on the pleadings. There, citing Priest, Defendants argued that “our Supreme Court has recently recognized that the constitutional defenses available to a defendant in a defamation case affect a substantial right and are immediately appealable on the merits.” Boyce, 169 N.C.App. at 575, 611 S.E.2d at 177 (internal quotation marks omitted). Our Court declined to extend the holding in Priest to Defendants' appeal from a motion for judgment on the pleadings. Id. at 576, 611 S.E.2d at 177. Likening a motion for judgment on the pleadings to a motion to dismiss, we reasoned that because in a motion to dismiss the trial court was not actually required to “apply” the actual malice standard, the Court's reasoning in Priest was inapplicable. See id. at 577, 611 S.E.2d at 178 (explaining that “on a [motion to dismiss], the court need only decide if the elements of the claim, perhaps including actual malice, have been [properly] alleged, not how to apply that standard.”). In the present case, Defendants appealed from a trial court's order denying their motion to dismiss an order for summary judgment. In the motion, Defendants generally sought to apply the defense of actual malice to Plaintiffs' cause of action. As a candidate for a public office, Dan Boyce was...