Priest v. Sobeck

Decision Date05 November 2002
Docket NumberNo. COA01-1476.,COA01-1476.
Citation153 NC App. 662,571 S.E.2d 75
CourtNorth Carolina Court of Appeals
PartiesPamela PRIEST and Betty Lou Skinner, plaintiff's, v. Thomas SOBECK and Make-Up Artists and Hair Stylists Local 798, of the International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, Defendants.

Barringer, Barringer, Stephenson & Schiller by David G. Schiller and Marvin Schiller, Cary, for plaintiff's.

Smith, James, Rowlett & Cohen by Seth R. Cohen, Greensboro, and Stanford, Fagan & Giolito, L.L.C., by Robert S. Giolito and Jeffrey D. Sodko, Atlanta, GA, for defendants.

WYNN, Judge.

This appeal concerns a defamation action brought by labor union members Pamela Priest and Betty Lou Skinner against their labor union and its representative. They appeal from the trial court's grant of partial summary judgment in favor of defendants; likewise, defendants appeal from that part of the summary judgment that was not granted in their favor. On review, notwithstanding the trial court's certification of this matter for immediate review under Rule 54(b), we conclude that the partial grant of summary judgment neither constitutes a final judgment nor affects a substantial right. Accordingly, we dismiss this appeal as interlocutory.

The underlying facts to this appeal show that defendant Make-up Artists and Hair Stylists Local 798, of the International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, hereinafter "Local 798," is the collective bargaining representative of most make-up artists and hairstylists in the film industry throughout the eastern half of the United States. Defendant Thomas Sobeck is the District Field Representative for Local 798; Priest and Skinner have been members of Local 798 for several years.

In June 1999, Priest was hired as head of the hair department on the CBS film "Shake, Rattle & Roll," a production governed by a collective bargaining agreement with Local 798. Priest then hired Skinner as "third hair" and filled all of the positions in her department with union members. When Priest arrived in Charlotte, North Carolina, to begin work on the production, she learned that a non-union worker had been hired as "second" in the make-up department. Priest later learned that Kelly Gore Jefferson, head of the make-up department, was dissatisfied with the selection of the non-union worker. Priest advised her to speak with the union production manager about her concerns.

Meanwhile, Sobeck, the union district representative, had been receiving complaints from union members about non-union members working on the production. Sobeck called Priest to find out what she knew about the hiring of non-union make-up employees. Priest asked Sobeck if they could speak at a later time since she was fatigued from working that day. In response, Sobeck faxed Priest and Skinner a letter informing them they could not be forced to work with or hire non-union workers. The next day Priest approached the unit production manager and told him that he needed to call Sobeck about the hiring of non-union workers. According to Priest, the unit production manager (in a previous conversation), informed her that Sobeck was aware of the situation and that the non-union worker had been hired at the request of the film's producer. The unit production manager called Sobeck and after the phone conversation, told Priest the matter had been resolved.

However, in the next union newsletter, Sobeck stated the following:

I received a call from one of our members in the Carolina's. She was asking me, why as a paid up dues paying member of our local, she was not hired, but passed over for a non-member make-up person.
. . .
I was aware of the problem and sent faxes to both Heads of the Department, Pam Priest and Kelly Gore Jefferson, stating that the Production cannot force them to hire non-members. I have not heard one word from either Head of Department. It is time you, the Membership file complaints and get rid of these not thinking members.
. . .
So there it is. Now it's up to you, the Membership, to advise this Local how you all would like to proceed on these issues when they arise.
. . .
Kelly Gore Jefferson did in fact hire non-union make-up over her own sisters and brothers and gave permission to the person to hire additional make-up and that the other Head of the Hair Department stood by, along with two other Local 798 Members, Roy Bryson and Betty Lou Skinner, on the production "Shake Rattle & Roll" being shot in Charlotte, North Carolina.
. . .
O.K. now all of you Members who have been complaining about this kind of problem can put a stop to it. Write your Business Agent and advise him how you want him to deal with this problem.
I have given you Members the ammunition now it's up to you to use it.

As a result of the newsletter comments and its dissemination to union members, Priest and Skinner brought this action alleging libel per se, class two libel and libel per quod. In granting partial summary judgment in favor of the defendants, the trial court stated:

There are no genuine issues of material fact with respect to any of the claims alleged except as to whether the defendant Sobeck with malice published in the August newsletter and subsequent newsletters that plaintiff's stood by when Henrita Jones, not a member of Local 798, was hired in mid to late June 1999 when such hiring was actually initially approved by union representative Vincent Callaghan and when defendant Sobeck himself later allegedly approved, explicitly or implicitly, the hiring of Ms. Jones. . . . Except with respect to the hiring of Ms. Jones and defendant Sobeck's assertion that plaintiff's stood by while Ms. Jones was hired, when he allegedly knew that he had himself approved the hire, no malice has been shown on the part of the defendants as to any other factual scenario.

Thus, the court granted partial summary judgment as to any and all claims "except any claim based upon the limited assertion that defendant Sobeck maliciously published that it was plaintiff's who stood by when Ms. Jones was hired when he knew he had approved the hire himself." Thereafter, the trial court, exercising its discretion under N.C. Gen.Stat. § 1A-1, Rule 54(b), determined that there was no just reason for delay of appellate review of this judgment which determined less than all of the claims of the plaintiff's.

plaintiff's' Interlocutory Appeal

It is well settled that a "grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group, Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). However, there are two situations in which one may seek appellate review of an interlocutory order. First, in claims involving multiple claims or multiple parties, if a final judgment is entered as to one, but not all, of the claims or parties and the trial judge certifies in the judgment that "there is no just reason for delay," such judgment is then subject to judicial review. N.C. Gen.Stat. § 1A-1, Rule 54(b) (2001). Second, if delaying the appeal would prejudice a substantial right, then there may be judicial review. Liggett, 113 N.C.App. at 23-24, 437 S.E.2d at 677.

In general, a trial court's certification of an order for immediate appeal under Rule 54(b) permits the parties to prosecute an interlocutory appeal. Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999)(quoting DKH Corp. v. Rankin-Patterson Oil Comp., Inc., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)). "Nonetheless, the trial court may not, by certification, render its decree immediately appealable if `[it] is not a final judgment.'" Sharpe, 351 N.C. at 162, 522 S.E.2d at 579; Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983); see Tridyn Indus. v. American Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979)

("That the trial court declared it to be a final, declaratory judgment does not make it so.").

In this case, plaintiff's presented three causes of action, libel per se, class 2 libel, and libel per quod based on the essence of one statement in the union newsletter: Defendants' statement that "plaintiff's Priest and Skinner `stood by' while `Jefferson . . . hire[d] non-union make-up' on the Production is false."

In granting partial summary judgment, the trial judge dismissed all claims "except any claim based upon the limited assertion that defendant Sobeck maliciously published that it was plaintiff's who stood by when Ms. Jones was hired when he knew he had approved the hire himself." Thus, the trial judge's order of partial summary judgment essentially left in tact the plaintiff's' defamation allegations based on the statement that they "stood by" while the non-union member was hired. Accordingly, there has not been a final judgment and the plaintiff's' appeal must be dismissed as interlocutory.

Defendants' Interlocutory Appeal

Defendants appeal the trial court's partial denial of summary judgment. It is well settled that "[d]enial of a motion for summary judgment is not a final judgment and is generally (unless affecting a "substantial right") not immediately appealable, even if the trial court has attempted to certify it for appeal under Rule 54(b)." First Atlantic v. Dunlea Realty, 131 N.C.App. 242, 247, 507 S.E.2d 56, 60 (1998)(quoting Cagle v. Teachy, 111 N.C.App. 244, 247, 431 S.E.2d 801, 803 (1993)). In this case, the trial court's denial of summary judgment was not a final judgment. Since this appeal arises from a non-final judgment, we hold that the trial court's certification under Rule 54(b) does not render it ready for appeal.

Nonetheless, as an alternative basis for their appeal, defendants' argue the partial denial of summary judgment affects their substantial right to free speech.

It is well settled that an
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    ...666-67 (1969). When First Amendment rights are asserted, this Court has allowed appeals from interlocutory orders. Priest v. Sobeck, 153 N.C.App. 662, 571 S.E.2d 75 (2002), rev'd per curiam, 357 N.C. 159, 579 S.E.2d 250 (2003) (for reasons stated in the dissenting opinion, thus finding in a......
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