Lippard v. Holleman

• Decision Date: 02 May 2017
• Docket Number: No. COA16-886,COA16-886
• Citation: 798 S.E.2d 812 (Table)
• Court: North Carolina Court of Appeals
• Parties: Kim and Barry LIPPARD, Plaintiffs, v. Larry HOLLEMAN and Alan Hix, Defendants.

798 S.E.2d 812 (Table)

Kim and Barry LIPPARD, Plaintiffs,

v.Larry HOLLEMAN and Alan Hix, Defendants.

No. COA16-886

Court of Appeals of North Carolina.

Filed: May 2, 2017

Seth B. Weinshenker, P.A., Concord, by Seth B. Weinshenker, for Plaintiff-Appellants.

Gibbs & Associates Law Firm, LLC, by Seth J. Krause (admitted pro hac vice) and E. Bedford Cannon, Statesville, for Defendant-Appellees.

HUNTER, JR., Robert N., Judge.

Kim ("Kim") and Barry ("Barry") Lippard ("Plaintiffs") appeal the trial court's 5 April 2016 order dismissing with prejudice their defamation claim against Larry Holleman ("Holleman") and Alan Hix ("Hix") ("Defendants"). After de novo review, we vacate the 5 April 2016 order dismissing this action on jurisdictional grounds and remand this matter for a trial on the merits.

I. Facts and Background

On 16 December 2013, Plaintiffs, congregants of the Diamond Hill Baptist Church ("DHBC") filed a verified complaint in Iredell County Superior Court alleging DHBC, along with Holleman, the Senior Minister, and Hix, the Minister of Music, publically defamed Plaintiffs to their church community. Plaintiffs also alleged DHBC engaged in ultra vires activity when its Board of Deacons and Personnel Committee voted to recommend Kim be dismissed as church pianist.

According to the complaint, Kim served as the church pianist and vocalist for thirty-four years, while Barry served as a deacon and as a member of several church committees. Although Kim and Hix had worked together for many years, their relationship was strained following a 2010 confrontation involving Kim's need for greater flexibility in her schedule. On 8 August 2012, after a rehearsal for a Sunday morning service, Kim and Hix began to argue about the assignment of a solo. Seeking to resolve the conflict, Holleman held a meeting between Plaintiffs and Hix in which he attempted an unsuccessful mediation. Holleman subsequently asked the church's board of deacons to recommend dismissing Kim from her position as church pianist. The board of deacons recommended dismissal, but stayed its recommendation pending a sustained attempt at reconciliation based on "biblical passages."

From the end of August until November 2012, Holleman counseled Kim and Hix, urging them to "commit unconditionally to the Biblically described pathway to reconciliation[.]" After initial progress, the process broke down, as Holleman claimed Kim failed to fully commit to an examination of her character.

After reconciliation failed, the board of deacons again recommended Kim be dismissed as church pianist. The matter was referred to the church's personnel committee. The personnel committee approved the recommendation and sent the issue to the entire congregation for a vote, pursuant to DHBC's constitution and by-laws. On 13 November 2012, Holleman sent Kim a letter accusing her of failing to take responsibility for her part in the breakdown of the reconciliation process.

Holleman called a meeting of the congregation on 28 November 2012 to vote on Kim's dismissal. At the meeting, he "delivered a nearly two (2) hour lecture to the Church congregation in which he published untrue statements regarding the Lippards by reading a twenty page diatribe." Holleman subsequently made written copies of the lecture ("the November 28 letter") available to the congregation. In the lecture, Holleman

misrepresented that [Kim] was unwilling to engage in reconciliation and the attempts at reconciliation between Hix, [Kim], and Holleman were unsuccessful and falsely depicted events involving [Plaintiffs], including that [Kim] had been involved with disputes with the Church for more than two years, that [Kim] maliciously slandered another choir member, and that [Kim] accused Hix of lying and intentionally hiding her sheet music[.]

Following the meeting, Holleman provided each member with a ballot which asked them to vote on Kim's dismissal after considering three questions:

1. Have Kim's actions been clearly demonstrated to her and to you as wrong according to the Scriptures?

2. Have the efforts of the Deacons, Personnel Committee and Pastor to restore her into the fellowship of the Body of Christ been sufficiently exercised with careful deliberation, patience, and graciousness, and according to the Scriptures?

3. Has Kim responded positively as instructed by the Scriptures?

The congregation voted to keep Kim as church pianist. Unsatisfied by the result, Defendants continued to discuss Plaintiffs' character and alleged failings with the other congregants.

After the vote, Holleman sought to ban Plaintiffs from worship services and to terminate their membership in the congregation. He also spoke with church members about the matter, allegedly telling one member Barry was a "liar" not to be believed "instead of Scripture." Holleman and Hix both exchanged emails with concerned parishioners regarding Kim's status at DHBC, repeating the allegations from the November 28 letter. In one of these emails, Holleman accused Barry of physically preventing Hix from leaving the church's music room and "aggressively going after" Hix following a meeting, characterizing this behavior as "illegal."

On 5 February 2014, Defendants filed an answer and motion to dismiss under North Carolina Rule of Civil Procedure 12(b)(1). Defendants argued the trial court lacked subject matter jurisdiction because Plaintiff's entire complaint involved an "ecclesiastical or ecumenical question of church governance." On 18 March 2014, Plaintiffs voluntarily dismissed all causes of action against DHBC. On 24 March 2014, Judge Anna Mills Wagoner heard Defendants' Rule 12(b)(1) motion to dismiss. Immediately before the hearing, Plaintiffs' counsel withdrew, and Plaintiffs appeared at the hearing pro se. Judge Wagoner summarily denied the motion to dismiss in a written order following the hearing. On 29 September 2014, Judge Theodore Royster dismissed the remaining ultra vires claims insofar as they applied to Holleman and Hix, leaving the defamation claims for resolution.

While the 2013 claims were still active, Plaintiffs hired a new attorney who filed a new civil action (15-CVS-606) containing nearly identical theories for relief based upon defamation, ultra vires corporate action, and negligent supervision against DHBC, Holleman, and Hix. Because the record does not contain the second complaint, we are unable to determine whether the second complaint involved identical facts.

Defendants subsequently filed a motion to dismiss in 15-CVS-606, which was heard before Judge Michael Duncan. At the hearing, Defendants argued all three claims brought in 15-CVS-606 should be dismissed for lack of subject matter jurisdiction. Defendants also made an oral motion to dismiss the defamation claim in the 2013 case. While the trial court granted the motion to dismiss in 15-CVS-606, holding all three claims were barred by lack of subject matter jurisdiction, the court refused to rule on the oral motion to dismiss the 2013 case, finding "Judge Anna Mills Wagoner previously ruled on that issue as a matter of law[.]"¹

On 16 February 2016, Holleman and Hix filed another motion to dismiss in the instant case under Rule 12(b)(1), again contending the trial court lacked subject matter jurisdiction over an "ecclesiastical or ecumenical question[ ] of church governance...." Judge Martin B. McGee heard the motion on 21 March 2016. [R. Defendants advanced two arguments for overruling Judge Wagoner's order. First, they argued the order was vulnerable because of circumstances surrounding the first hearing: Plaintiffs' counsel withdrew on the day of the original motion to dismiss, forcing them to appear pro se at the hearing, and Plaintiffs voluntarily dismissed DHBC as a defendant only two days prior to the hearing. Second, Defendants argued the trial court had the authority to hear challenges to its jurisdiction at any time, regardless of whether the issue had been raised previously.

In an order filed 5 April 2016, Judge McGee granted Defendant's motion to dismiss, holding the issue of subject matter jurisdiction was an exception to the general rule against one superior court judge overruling another. Further, Judge McGee found it was "not entirely clear if Judge Wagoner was leaving the issue of subject matter jurisdiction open to be reconsidered by denying the motion to dismiss ‘at this point’ given the circumstances of the hearing [.]" With respect to Plaintiff's defamation claim, the court held "[a]ll of the alleged defamatory statements involve internal communication between leaders of the church and church members regarding matters of church governance, leadership, and membership." Plaintiffs filed a notice of appeal of Judge McGee's order on 5 May 2016.

II. Jurisdiction

Plaintiffs appeal the order of a superior court in a civil action that disposes of all the issues as to all parties. As a result, jurisdiction is proper in this Court under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b) (2015).

III. Standard of Review

"We review Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings." Harris v. Matthews , 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007). In our review, "we view the allegations as true and the supporting record in the light most favorable to the non-moving party." Mangum v. Raleigh Bd. of Adjustment , 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008).

IV. Analysis

Although the parties have not raised a key jurisdictional issue, we address ex mero motu whether Judge McGee's order dismissing the case for lack of subject matter jurisdiction violated the "well-established rule" that no appeal lies from one superior court judge to another. Calloway v. Ford Motor Co. , 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972).

"The power of one judge of the superior court is equal to and coordinate with that of another." Michigan Nat'l Bank v. Hanner , 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1960). Thus, "one Superior Court judge may...