Presnell v. Pell

• Citation: 251 S.E.2d 692,39 N.C.App. 538
• Decision Date: 06 February 1979
• Docket Number: No. 7817SC325,7817SC325
• Parties: Mary Alice PRESNELL v. Joe A. PELL, Jr., Clinton W. Moseley, Grover W. Hanes, Jr., James R. Marion, Claude V. Ayers, Fred A. Holder, Billy Smith, Doyle Key, Talmage Crouse, James S. Nixon, Individuals and Surry County Board of Education, Dennis Smitherman, Individually and as Principal of Mountain Park Elementary School, and Charles C. Graham, Individually and as the Superintendent of Surry County School System.
• Court: Court of Appeal of North Carolina (US)

Page 692

251 S.E.2d 692

39 N.C.App. 538

Mary Alice PRESNELL v. Joe A. PELL, Jr., Clinton W. Moseley, Grover W. Hanes, Jr. James R. Marion, Claude V. Ayers, Fred A. Holder, Billy Smith, Doyle Key, Talmage Crouse, James S. Nixon Individuals and Surry County Board of Education, Dennis Smitherman, Individually and as Principal of Mountain Park Elementary School, and Charles C. Graham, Individually and as the Superintendent of Surry County School System.

No. 7817SC325.

Court of Appeals of North Carolina.

Feb. 6, 1979.

Franklin Smith, Elkin, for plaintiff-appellant.

Faw, Folger, Sharpe & White by Fredrick G. Johnson, Dobson, for defendants-appellees.

MITCHELL, Judge.

The plaintiff assigns as error the trial court's dismissal of her claim for relief for "slander and defamation" based upon her allegations that the principal of Mountain Park Elementary School, the defendant Smitherman, falsely accused her of bringing liquor into her place of employment in the public school and distributing it to others present. She contends that these false allegations caused her to be discharged and reflected discredit upon her character related to her employment. The defendant responds that the trial court's ruling was proper as any statements made about the defendant by the principal were protected as qualifiedly or conditionally privileged communications made in good faith concerning matters which arose from the principal's duties under law. In the present case, however, the plaintiff specifically alleged in her complaint that the actions of the principal were taken in bad faith and maliciously. Such allegations are sufficient at the pleading stage of an action to overcome the defense of conditional or qualified privilege which arises only from good faith actions. 8 Strong's N.C. Index 3d, Libel and Slander § 9, p. 343. A communication which is qualifiedly privileged is actionable upon a showing of actual malice. R. H. Bouligny, Inc. v. United Steel Workers of America, 270 N.C. 160, 154 S.E.2d 344 (1967). Therefore, the plaintiff's specific allegation of malice was sufficient when taken with the other allegations of her complaint to overcome the defendants' motion to dismiss based upon qualified or conditional privilege.

The plaintiff alleged in the complaint that the principal, the defendant Smitherman, falsely and maliciously accused her of bringing liquor into the area of the public school in which she was employed as cafeteria manager and dispensing the liquor to other county employees present. She also alleged that the principal unnecessarily and excessively publicized these false accusations by relating them to the plaintiff's fellow employees, who apparently had no responsibility concerning the determination as to whether the plaintiff's employment should be terminated. Such allegedly false accusations imputed conduct derogatory to the character and standing of the plaintiff as a public employee and tended to prejudice her in her capacity as a public employee and were actionable per se. Badame v. Lampke, 242 N.C. 755, 89 S.E.2d 466 (1955); Stewart v. Nation-Wide Check Corp., 9 N.C.App. 172, 175 S.E.2d 615 (1970), Rev'd on other grounds, 279 N.C. 278, 182 S.E.2d 410 (1971); Annot., 6 A.L.R.2d 1008 (1949); Annot., 58 A.L.R. 1157 (1929). The allegations of the plaintiff's complaint set forth a claim for relief for slander which, for the reasons previously stated herein, was not defeated by the defendants' defense of conditional or qualified privilege.

We note that the allegations of the plaintiff's complaint also presented a claim for relief for the common-law wrong of malicious interference with contractual rights, as it indicates that some of the allegedly false statements were maliciously employed as the means of bringing about the plaintiff's discharge from her employment. The plaintiff has not, however, sought to pursue a claim for relief based upon this theory by exception, assignment of error or argument and we deem it abandoned.

In Johnson v. Graye, 251 N.C. 448, 111 S.E.2d 595 (1959), the Supreme Court of North Carolina held that a complaint by a teacher against a principal setting forth allegations similar to those presented by the complaint of the plaintiff in the present case established a claim for relief for malicious interference with contractual rights and not a claim for libel or slander. We do not, however, view Johnson as authority for the proposition that one course of conduct cannot support claims for relief on both theories of slander and malicious interference with contractual rights. That case presented a fact situation in which the allegedly false accusations functioned only as a means employed in procuring the plaintiff's discharge from employment. Here, on the other hand, the plaintiff specifically alleged that, in addition to being used as the means to secure her discharge, the false and malicious accusations were published to her fellow employees who had no responsibility for or participation in her discharge thereby causing additional damages. We do not think that the holding in Johnson in any way prevented the plaintiff from properly pursuing a claim for relief for both defamation and malicious interference with contractual rights based on the allegations set forth in her complaint. Nor do we think Johnson provided authority for the trial court's judgment dismissing the claim for relief for slander which she chose to pursue.

For purposes of a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the allegations of the complaint must be treated as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). A complaint is sufficient to withstand the motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and the allegations contained therein are sufficient to give the defendant sufficient notice of the nature and basis of the plaintiff's claim to enable him to answer and prepare for trial. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). A plaintiff's claim for relief should not be dismissed unless it affirmatively appears that the plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). Viewed in light of these rules, we find that the plaintiff's claim for relief for defamation was sufficient to withstand the defendants' motion to dismiss made pursuant to G.S. 1A-1, Rule 12(b)(6) and that the trial court erred in granting that motion.

The plaintiff also assigns as error the dismissal by the trial court of her claim for relief based upon her allegations that she was wrongfully discharged from her employment as cafeteria manager of Mountain Park Elementary School. In support of this assignment, the plaintiff contends that she was wrongfully discharged without the opportunity for a prior hearing and that her discharge in this manner violates G.S. 115-34. The defendants respond that the plaintiff failed to exhaust her administrative remedies as provided by G.S. 115-34. They further contend that this failure to exhaust the administrative remedies provided by that statute deprived the trial court of subject matter jurisdiction over the plaintiff's claim for relief for wrongful discharge and that the trial court's ruling dismissing this claim for relief pursuant to G.S. 1A-1, Rule 12(b)(1) and (6) was, therefore, correct.

For purposes of this appeal, it is unnecessary for us to consider or determine whether any group or person other than the Surry County Board of Education had authority to discharge the plaintiff. Compare G.S. 115-35(b) With G.S. 115-58. The plaintiff has alleged in her complaint that she was in fact denied continued employment in the school by the alleged acts of the defendant Smitherman and others and has, therefore, presented a colorable claim of "discharge" from employment.

No General Statute of North Carolina specifically requires that a hearing be afforded individuals employed as cafeteria workers or managers in public schools Prior to their discharge from employment. G.S. 115-34 does provide such individuals the right to appeal any such discharge to the appropriate county or city board of education. That statute further provides that such individuals may appeal the resulting decision by the county or city board of education to superior court if the decision is one affecting the individual's "character or right to teach." Instead of pursuing the procedure set forth in G.S. 115-34 and later appealing an adverse decision to superior court, the plaintiff chose to initiate this action by filing a complaint in superior court. As no statute provides the plaintiff the right to a hearing prior to discharge, and she has failed to pursue the exclusive administrative remedy and appeal therefrom as required by G.S. 115-34, her complaint presented no basis under G.S. 115-34 for the appellate jurisdiction of the trial court over this claim. King v. Baldwin, 276 N.C. 316, 172 S.E.2d 12 (197...