Lippard v. Holleman, 051920 NCCA, COA18-873

Docket Nº:COA18-873
Opinion Judge:MURPHY, Judge.
Party Name:KIM and BARRY LIPPARD, Plaintiffs, v. LARRY HOLLEMAN and ALAN HIX, Defendants.
Attorney:Seth B Weinshenker, P.A., by Seth B. Weinshenker, for plaintiffs-appellants. Gibbs & Associates Law Firm, LLC, by Seth J. Kraus and E. Bedford Cannon, for defendants-appellees.
Judge Panel:Judge BERGER concurs. Chief Judge MCGEE concurs in part, dissents in part, and concurs in the judgment in a separate opinion. McGEE, Chief Judge, concurring in part, dissenting in part, and concurring in the judgment.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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KIM and BARRY LIPPARD, Plaintiffs,

v.

LARRY HOLLEMAN and ALAN HIX, Defendants.

No. COA18-873

Court of Appeals of North Carolina

May 19, 2020

Heard in the Court of Appeals 14 March 2019.

Appeal by Plaintiffs from order entered 17 April 2018 by Judge Mark E. Klass in Iredell County No. 13 CVS 2701 Superior Court.

Seth B Weinshenker, P.A., by Seth B. Weinshenker, for plaintiffs-appellants.

Gibbs & Associates Law Firm, LLC, by Seth J. Kraus and E. Bedford Cannon, for defendants-appellees.

MURPHY, Judge.

Kim Lippard ("Mrs. Lippard") and Barry Lippard ("Mr. Lippard") (together, "Plaintiffs") allege multiple claims of defamation against Larry Holleman ("Holleman") and Alan Hix ("Hix") (together, "Defendants"). The First Amendment does not permit courts to hear defamation claims when they were made during an internal religious dispute regarding ecclesiastical matters. We affirm the trial court's grant of summary judgment in favor of Defendants.

BACKGROUND

Plaintiffs were members of Diamond Hill Baptist Church ("DHBC"), where Mrs. Lippard had served as church pianist and vocalist. Holleman was the Pastor of the Church and Hix was Minister of Music. Holleman was DHBC's leader and was "responsible for leading [DHBC] to function as a New Testament Church." This included leading the congregation and DHBC staff to perform their tasks and caring for the DHBC members. Hix directed DHBC's music organization. Its purpose was "to teach music, train persons to lead, sing, and play music, [and] provide music in the [DHBC] and community." Under Hix's direction, the music organization "provide[d] and interpret[ed] information regarding the work of the [DHBC] and denomination."

On 8 August 2012, Mrs. Lippard and Hix had a disagreement over the reassignment of a music solo. The solo was originally assigned to Mrs. Lippard for an upcoming Sunday morning service. Hix, however, asked another choir member to perform the solo and Mrs. Lippard was upset about the reassignment. When an internal conflict between church members arises, DHBC's bylaws maintain that "the pastor and the deacons will take every reasonable measure to resolve the problem in accord with Matthew 18."

As church leader, Holleman began meeting with Mrs. Lippard and Hix to facilitate a "reconciliation" between them and an "improved relationship based on biblical passages." On 26 August 2012, after several unsuccessful reconciliation meetings, Holleman met with the Board of Deacons ("Deacons") to discuss whether Mrs. Lippard should be dismissed from her position as DHBC pianist. At the meeting, the Deacons voted to recommend Mrs. Lippard's dismissal to DHBC's Church Personnel Committee ("the Personnel Committee"). Three days later, Holleman informed Mrs. Lippard that the Deacons had voted to recommend her dismissal.

In response to a voice message from Mr. Lippard, Holleman arranged further counseling sessions between Mrs. Lippard and Hix. The sessions were to continue seeking a "reconciliation" between the two and were scheduled for late September through October 2012.

Ultimately, the Deacons announced its decision to again recommend Mrs. Lippard's dismissal and re-submitted its recommendation to the Personnel Committee. The Personnel Committee met and voted to recommend to the full congregation that Mrs. Lippard be dismissed as DHBC pianist. The decision had to be approved by an affirmative vote of three-fourths of DHBC members. On 13 November 2012, Holleman delivered a letter to Mrs. Lippard, setting forth the reasons for his recommendation to dismiss her as pianist.1

On 25 November 2012, during the morning DHBC church service, Holleman announced to his congregation that there would be a "church-wide" meeting and a vote in three days. At that meeting, DHBC staff would be discussed and it was part of the responsibilities of members to be present for the discussion and to vote. He also said that a written letter explaining a motion and absentee ballots for the motion would be made available.

At the "church-wide" meeting on 28 November 2012, Holleman delivered a sermon on the motion to terminate Mrs. Lippard from the pianist position. He repeatedly stated that the recommendation for Mrs. Lippard's dismissal stemmed from her "unwillingness to commit" to the DHBC's reconciliation process. After the meeting, Holleman left printed copies of his 28 November 2012 sermon in the foyer for members of the congregation. He also made a letter available titled "Concluding Comments to the Present disciplinary Actions by The Body of Deacons and the Personnel Committee (November 13, 2012)." It said, "I (we) have yet to hear you acknowledge any personal responsibility for your failures." The letter concluded that Mrs. Lippard, "by placing conditions upon [her] obedience to the scriptures as they regard reconciliation, ha[s] been the obstacle to that reconciliation."

In a sermon on 2 December 2012, Holleman advocated for the DHBC congregation to remove Mrs. Lippard from the pianist position. Ballots were distributed stating the Deacons recommended the dismissal of Mrs. Lippard "due to her unwillingness to admit to any wrongdoing, or to commit unconditionally to the process of reconciliation." The congregation voted against dismissal, and Mrs. Lippard remained in her position. Holleman and Hix also continued in their respective leadership positions.

Plaintiffs allege that, after the vote, Holleman and the Deacons unsuccessfully sought to remove them as members of DHBC, and that Defendants continued to speak with members of the congregation about Plaintiffs. Plaintiffs contend that in Holleman's sermons he "continued . . . to defame [Plaintiffs] by consistently preaching against those who would not commit to reconciliation," alluding to Plaintiffs. Plaintiffs further contend Hix said to a DHBC member that "[Mr.] Lippard is a liar and you and other people like you are believing him instead of the Scripture." On 8 January 2013, Hix also emailed DHBC member Tony Brewer ("Brewer") about the situation, stating Plaintiffs were "openly denying" "verifiable facts" about the reconciliation process.

Holleman also communicated with others about Plaintiffs. When Brewer complained of the efforts to remove Plaintiffs, Holleman sent a letter to him alleging that Mrs. Lippard "refuses to acknowledge any wrongdoing, and that she was unwilling to commit unconditionally to the process of reconciliation." In a 6 April 2013 email, Holleman claimed Mr. Lippard once "blocked [Hix's] exit from the music room and was aggressively going after [Hix], pointing his finger in [Hix]'s face, an action [Holleman] recently learned was illegal and could have very well been reported as a crime." Holleman also emailed DHBC member A.W. Myers ("Myers"), stating Mrs. Lippard failed to acknowledge her own role in the dispute between her and Hix. In August 2013, Mrs. Lippard resigned her position as DHBC pianist and Plaintiffs began attending another church.

A. Unpublished Lippard

Shortly after Mrs. Lippard's resignation, Plaintiffs filed this action against DHBC and Defendants, alleging they were defamed by Defendants, who Plaintiffs also allege committed ultra vires corporate activities. In their answer, Defendants moved to dismiss Plaintiffs' complaint under N.C. G.S. § 1A-1, Rule 12(b)(1) for lack of subject matter jurisdiction. Plaintiffs voluntarily dismissed their claim against DHBC without prejudice, leaving only their claims against Defendants. Defendants' Rule 12(b)(1) motion to dismiss was denied by Judge Anna Mills Wagoner on 25 May 2014. Defendants later moved to dismiss Plaintiffs' second cause of action for ultra vires activities, and Judge Theodore Royster granted Defendants' motion, leaving only the claims for defamation against Defendants.

After retaining new counsel, Plaintiffs filed a separate civil action (No. 15-CVS-606) against Defendants and DHBC upon nearly identical claims of defamation, ultra vires activities, and negligent supervision while the claims in the 2013 case were still active. Defendants moved to dismiss the claims in No. 15-CVS-606 and made an oral motion to dismiss the claims in this case as well. Judge Michael Duncan dismissed the claims in No. 15-CVS-606 while refusing to rule on Defendants' oral motion to dismiss the claims in this case, finding that Judge Wagoner had previously ruled on that issue.

Defendants filed an additional motion to dismiss Plaintiffs' remaining defamation claims in this case on 16 February 2016 for lack of subject matter jurisdiction under N.C. G.S. § 1A-1, Rule 12(b)(1) and failure to state a claim upon which relief can be granted under N.C. G.S. § 1A-1, Rule 12(b)(6). Judge Martin B. McGee heard the motion on 21 March 2016 and dismissed Plaintiffs' defamation claim in an order, stating "[t]he First Amendment deprives the [c]ourt of jurisdiction to resolve this dispute involving internal communications between church leadership and members of the congregation relating to issues of membership and music leadership."

Plaintiffs appealed and we vacated and remanded the judgment to the trial court in an unpublished opinion. Lippard v. Holleman, No. COA16-886, 253 N.C.App. 407, 798 S.E.2d 812, 2017 WL 1629377, at *3 (2017) (unpublished) (hereinafter Unpublished Lippard).2 In vacating and remanding the trial court's dismissal of Plaintiffs' claims under Rule 12(b)(1), we held that Judge McGee's grant of Defendants' motion to dismiss impermissibly overruled Judge Wagoner's denial of Defendants' motion to dismiss in the same action. We reasoned subject matter jurisdiction is not an exception to the general rule that "one Superior Court judge may not correct another's errors of law; and . . . ordinarily one judge may not modify...

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