Lewis v. Rapp

• Decision Date: 01 May 2012
• Docket Number: No. COA11–1188.,COA11–1188.
• Parties: Ola M. LEWIS, Plaintiff, v. Edward Lee RAPP, Defendant.
• Court: North Carolina Court of Appeals

725 S.E.2d 597

40 Media L. Rep. 1805

Ola M. LEWIS, Plaintiff,

v.Edward Lee RAPP, Defendant.

No. COA11–1188.

Court of Appeals of North Carolina.

May 1, 2012.

Appeal by plaintiff from order entered 19 July 2011 by Judge William R. Pittman in Brunswick County Superior Court. Heard in the Court of Appeals 7 February 2012.

Marshall, Williams & Gorham, L.L.P., Wilmington, by Lonnie B. Williams, and Stratas & Weathers, L.L.P., Raleigh, by Nicholas A. Stratas, Jr., for plaintiff-appellant.

Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, Raleigh, for defendant-appellee.

HUNTER, ROBERT C., Judge.

Ola M. Lewis (“plaintiff”) appeals from the trial court's 19 July 2011 order denying her partial motion for summary judgment and granting Edward Lee Rapp's (“defendant”) motion for summary judgment. After careful review, we affirm in part, and reverse and remand in part.

Background

In April 2010, plaintiff was the serving Senior Resident Judge of Judicial District 13B in North Carolina and was engaged in a campaign to retain her seat in the November 2010 election. She was also a vocal supporter of William Rabon who was running for the North Carolina State Senate. Defendant, a citizen of North Carolina, was a known supporter of Rabon's opponent, Bettie Fennell. Defendant also volunteered to serve as Fennell's “Media Strategist” without receiving compensation.

On 9 April 2010, defendant posted a blog entry on Facebook titled “Dirty Politics by the good ol boys.” The blog entry was also posted on Carolina Talk Network. In this post, defendant criticized Rabon and further stated: “When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics” (hereinafter referred to as “the 9 April publication”). That same day, plaintiff's attorney emailed defendant and informed him that plaintiff was a candidate for office and that Canon 7B(2) of the Code of Judicial Conduct allows a candidate to endorse any other candidate seeking election to any office. Plaintiff's attorney also cited a memorandum issued by Chief Judge John Martin on 26 February 2010 in which he reiterated to members of the judiciary what conduct was permissible and what conduct was prohibited by the Code of Judicial Conduct during the 2010 election cycle. The memorandum specifically cited to Canon 7B(2) and stated that a judge was permitted to endorse any candidate seeking office so long as the judge is also a judicial candidate.

On 12 April 2010, defendant posted another blog entry on Facebook and Carolina Talk Network titled: “Apologies, Corrections, Explanations and Amplifications on my Blogs.” Defendant stated in pertinent part:

I have spent this past weekend in prayer, mediation [sic], and contemplation.... First, let me apologize for my comment about the sitting judge being in violation [of] The North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind.... It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.

(hereinafter referred to as “the 12 April publication”) (Emphasis omitted). Defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry; however, he did not include Canon 7B(2).

On 14 April 2010, plaintiff filed a complaint alleging that defendant's publications were libelous per se because the false accusations damaged plaintiff's reputation as a judge. Plaintiff sought monetary damages as well as a temporary restraining order, a preliminary injunction, and a permanent injunction.

After discovery was complete, defendant moved for summary judgment on 3 February 2011. On 9 June 2011, plaintiff moved for partial summary judgment, asking the trial court to enter judgment “as a matter of law as to Defendant's words constituting libel per se.” On 19 July 2011, the trial court denied plaintiff's motion for partial summary judgment and granted defendant's motion for summary judgment. Plaintiff timely appealed to this Court.

Discussion

Plaintiff argues on appeal that the trial court erred in denying her motion for partial summary judgment and granting defendant's motion for summary judgment. “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). Consequently, we review de novo the trial court's determination that defendant did not commit libel per se in the 9 April and 12 April publications.

“In order to recover for defamation, a plaintiff must allege that the defendant caused injury to the plaintiff by making false, defamatory statements of or concerning the plaintiff, which were published to a third person.” Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 29, 568 S.E.2d 893, 897 (2002).

In North Carolina, the term defamation applies to the two distinct torts of libel and slander. Libel per se is “a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.”

Id. at 29, 568 S.E.2d at 898 (quoting Phillips v. Winston–Salem/Forsyth County Bd. of Educ., 117 N.C.App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. review denied,340 N.C. 115, 456 S.E.2d 318 (1995)). “Whether a publication is libelous per se is a question of law for the court.” Id. at 31, 568 S.E.2d at 899.

“[I]n order to be libelous per se, defamatory 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, or cause him to be shunned and avoided.’ ” Id. at 30–31, 568 S.E.2d at 898–99 (quoting Flake v. News Co., 212 N.C. 780, 786, 195 S.E. 55, 60 (1938)) (emphasis added). “When examining an allegedly defamatory statement, the court must view the words within their full context and interpret them ‘as ordinary people would understand’ them.” Id. at 31, 568 S.E.2d at 899 (quoting Renwick v. News and Observer, 310 N.C. 312, 319, 312 S.E.2d 405, 409,cert. denied,469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984)).

“In actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards.” Proffitt v. Greensboro News & Record, 91 N.C.App. 218, 221, 371 S.E.2d 292, 293 (1988). “[T]he First Amendment sets limits on a public figure's ability to recover for defamation.” Wells v. Liddy, 186 F.3d 505, 532 (4th Cir.1999).

Where the plaintiff is a public official and the allegedly defamatory statement concerns his official conduct, he must prove that the statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The rule requiring public officials to prove actual malice is based on First Amendment principles and reflects the Court's consideration of our national commitment to robust and wide-open debate of public issues.

Varner v. Bryan, 113 N.C.App. 697, 703, 440 S.E.2d 295, 299 (1994) (emphasis added) (internal citation and quotation marks omitted). “When a defamation action brought by a ‘public official’ is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence presented is sufficient to allow a jury to find that actual malice had been shown with convincing clarity.” Id. at 704, 440 S.E.2d at 299.

It is important to acknowledge that “evidence of personal hostility does not constitute evidence of ‘actual malice’ ” Id. at 704, 440 S.E.2d at 300. Additionally, “reckless [disregard] is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968).

A. 9 April Publication

We will first address the 9 April publication, which plaintiff contends was libelous per se and disseminated with actual malice. Defendant admits that this publication contained the false statement that plaintiff was in violation of the Code of Judicial Conduct, but defendant argues that plaintiff cannot forecast any evidence that defendant acted with actual malice, an essential element of her claim. We agree with defendant.

Defendant claims that he did not have actual knowledge at the time of the publication that plaintiff was a candidate for office and therefore permitted by the Code of Judicial Conduct to endorse another candidate running for office. Defendant claims that he believed the statement he made to be true when he made it. There is no evidence to show otherwise. Defendant was consistent in his deposition, stating that he did not know...