Kwan-Sa You v. Roe

• Decision Date: 16 January 1990
• Docket Number: No. 8914SC316,KWAN-SA,8914SC316
• Court: North Carolina Court of Appeals
• Parties: , 58 Ed. Law Rep. 332 YOU, Plaintiff, v. Charles R. ROE, Samuel L. Katz, Dorothy A. Byrd, Corinne A. Houpt, Jeffrey L. Houpt, Alan Stoudemire and Duke University, Defendants.

Page 188

387 S.E.2d 188

97 N.C.App. 1, 58 Ed. Law Rep. 332

KWAN-SA YOU, Plaintiff, v. Charles R. ROE, Samuel L. Katz, Dorothy A. Byrd, Corinne A.

Houpt, Jeffrey L. Houpt, Alan Stoudemire and Duke

University, Defendants.

No. 8914SC316.

Court of Appeals of North Carolina.

Jan. 16, 1990.

Grover C. McCain, Jr. and Phyllis Moore, Chapel Hill, for plaintiff-appellant.

Moore & Van Allen by N.A. Ciompi, Charles R. Holton and Barry L. Creech, Durham, for defendants-appellees Roe, Katz, Byrd, C. Houpt, J. Houpt, and Duke University.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Alene M. Mercer and Susan K. Burkhart, Raleigh, for defendant-appellee Stoudemire.

EAGLES, Judge.

Where a motion for summary judgment is granted, the critical questions for determination on appeal are whether, on the basis of materials presented to the trial court, there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Oliver v. Roberts, 49 N.C.App. 311, 271 S.E.2d 399 (1980), cert. denied, 276 S.E.2d 283 (1981). Here the trial court entered summary judgment on all of plaintiff's claims against all defendants except medical malpractice, false imprisonment and violation of Art. 5A, Ch. 122 (recodified as Ch. 122C, Art. 5, part 7) against Dr. Stoudemire. It is well recognized that an appeal normally does not lie from an interlocutory order. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). An interlocutory order is an order made during the pendency of the case which adjudicates the rights and liabilities of fewer than all the parties, or adjudicates fewer than all claims in the action. Id. at 362, 57 S.E.2d at 381. However, where "partial summary judgment is final as to the matters adjudicated therein, or if it affects a substantial right, it is immediately appealable." Beck v. American Bankers Life Assurance Co., 36 N.C.App. 218, 220, 243 S.E.2d 414, 416 (1978). Entry of summary judgment against plaintiff on all of his claims except the three listed above affects a substantial right of plaintiff. The orders are therefore appealable prior to final adjudication of the remaining claims.

After careful consideration of the record on appeal and plaintiff's arguments, we affirm the trial courts' orders granting summary judgment on the issues of breach of contract, malicious interference with contract, slander, malicious prosecution and abuse of process in favor of defendants. However, we vacate the trial courts' orders on the issues of libel, medical malpractice by Duke University and false imprisonment and remand the case for further proceedings.

I. Discovery Orders.

Plaintiff's first two assignments of error relate to the denial of his motions to compel discovery. Plaintiff concedes in his brief that orders regarding discovery are interlocutory and "appropriate notice has not been given." Therefore, plaintiff asserts that these two assignments of error are not ripe for appeal. We decline to discuss their merits.

II. Breach of Contract, Malicious Interference with

Contract, Defamation and Conspiracy.

Plaintiff argues that the trial court erred in granting partial summary judgment on the issues of breach of contract, malicious interference with contract and defamation. Plaintiff has abandoned his claim for civil conspiracy.

A. Breach of Contract.

Plaintiff alleges that he was denied access to laboratory space for one year during his employment and he asserts that access to laboratory space was part of his employment contract with Duke University. Duke asserts that the record shows plaintiff was offered alternative laboratory space but plaintiff refused the offer. Plaintiff relies on Dr. Katz's letter of appointment (addressed to the Dean of Medical and Allied Health Education, not plaintiff) which states that:

Dr. You will work on a full time 12 month basis and will be entitled to the fringe benefits described in the faculty package for those at his rank. His office and laboratory space will be located in Dr. Roe's area on the second floor of the Bell Building.

Plaintiff asserts that laboratory space in this specific building and area was a term of his employment contract. We cannot agree and therefore we find that, on this record, laboratory space in a specific area was not a term of plaintiff's contract. The trial court correctly granted summary judgment in favor of Duke University on plaintiff's breach of contract claim.

B. Malicious Interference with Contract.

Plaintiff also alleges that Dr. Roe maliciously interfered with his employment contract by recommending that plaintiff be terminated. Plaintiff asserts that there is a genuine issue of fact whether Dr. Roe acted with malice. Dr. Roe asserts that since he was not an "outsider" to the employment contract he cannot be liable for malicious interference with that contract. Although we do not agree with defendant Roe's argument as to the significance of not being an outsider to the contract, the trial court was correct in granting summary judgment on this issue.

Under North Carolina law, a third party who induces one party to terminate or fail to renew a contract with another may be held liable for malicious interference with the party's contractual rights if the third party acts without justification. "Recent cases hold that one need not be an outsider in order to be held liable for malicious interference with contract." Murphy v. McIntyre, 69 N.C.App. 323, 329, 317 S.E.2d 397, 401 (1984). In order to establish the tort of malicious interference with a contract right, the plaintiff must prove:

First, that a valid contract existed between the plaintiff and a third person.... Second, that the outsider had knowledge of the plaintiff's contract with the third person. Third, that the outsider intentionally induced the third person not to perform his contract with the plaintiff. Fourth, that in so doing the outsider acted without justification. Fifth, that the outsider's act caused the plaintiff actual damages.

Smith v. Ford Motor Co., 289 N.C. 71, 84-85, 221 S.E.2d 282, 290 (1976). Plaintiff contends that the existence of his contract, defendant Roe's knowledge of that contract and Roe's role in inducing the contract's termination have all been established. Plaintiff argues that the materials before the court raise a genuine issue on the element of justification. Plaintiff asserts that a forecast of evidence of legal malice will rebut a showing by defendant of justification for his actions. See Ramsey v. Rudd, 49 N.C.App. 670, 673, 272 S.E.2d 162, 164 (1980), disc. rev. denied, 302 N.C. 220, 276 S.E.2d 917 (1981). Legal malice means

intentionally doing a wrongful act or exceeding one's legal right or authority in order to prevent the making of a contract between two parties. The action must be taken with the design of injuring one of the parties to the contract or of gaining some advantage at the expense of a party. Plaintiff's evidence must show that defendant had no legal justification for his action; proof of actual malice is not sufficient.

Murphy, 69 N.C.App. at 328-29, 317 S.E.2d at 401 (citations omitted).

The record is replete with allegations of defendant Roe's motives. However, there is no evidence that defendant's actions were outside the scope of his authority as Director of the Pediatric Metabolism Laboratory. Therefore defendant Roe's actions were not legally malicious. There is no genuine issue of fact on this issue and summary judgment was properly granted in favor of defendant.

C. Defamation.

(1) Slander.

Plaintiff also alleges that statements made by various defendants were false, and were maliciously made to discredit plaintiff. Specifically, plaintiff argues that defendants Roe, Katz and Byrd made the following "untrue and defamatory statements" about him:

1. He was threatening staff members of the Pediatric Metabolism Laboratory with acids;

2. He was making bombs in the laboratory;

3. He had a history of violently abusing his wife; [and]

4. He wrote letters to his wife threatening to kill her and the children.

Plaintiff argues that these statements constitute slander per se because they involve allegations of moral turpitude. The defendants have asserted in defense the truth of the statements and a qualified privilege in making the statements. Plaintiff asserts that the facts before the trial court raised a genuine issue regarding the truth of the statements and the declarants' actual malice.

The record before us shows that the statements related above were true. There is evidence that plaintiff acted peculiarly on two occasions when in the laboratory, mixing acid and another substance together and placing the hot and smoking flask in the employees' hands. These instances were the basis of the statement that plaintiff was threatening employees with acid. The statement regarding a bomb also has a basis in fact. Although the facts tend to show that the statement was a misunderstanding of what plaintiff meant, there is no dispute that plaintiff stated that "the bomb has been dropped" and the "wires are burning." The statements regarding plaintiff's abuse of his wife and threats to her and their children are also based on fact. There is plenary evidence in the record to support the statements that plaintiff had abused his wife physically and had written threatening letters to her while she was out of the country. Because we find no facts that raise a genuine issue regarding the statements' truthfulness, we need not discuss defendants' assertion of a qualified privilege and plaintiff's assertion of actual malice.

(2 ) Libel.

Plaintiff argues in his brief that the termination letter written by Dr. Roe constituted libel per se because it tended to impeach plaintiff in his trade or profession. The letter stated that plaintiff was being terminated because he abandoned his responsibilities as assistant director of the clinical laboratory, he was reluctant to push himself toward grant deadlines...