Ward v. Jett Properties, LLC, No. COA08-1508 (N.C. App. 2/2/2010)

Decision Date02 February 2010
Docket NumberNo. COA08-1508.,COA08-1508.
PartiesMARK A. WARD, Plaintiff, v. JETT PROPERTIES, LLC, Defendant.
CourtNorth Carolina Court of Appeals

Mark A. Ward, pro se, plaintiff-appellant.

Hinshaw & Jacobs, LLP, by Robert D. Hinshaw, for defendant-appellee.

GEER, Judge.

Plaintiff Mark A. Ward appeals the trial court's order dismissing his defamation claim against defendant Jett Properties, LLC, and imposing Rule 11 sanctions against him. Because plaintiff's complaint fails to allege all of the essential elements of libel per se or libel per quod, we affirm the trial court's dismissal of his complaint. We also hold that the trial court's findings of fact support its conclusion that plaintiff filed his complaint for an improper purpose. The trial court, however, failed to make sufficient findings of fact explaining the basis for the particular amount of the sanction imposed, and we are, therefore, required to remand for the necessary findings of fact.


On 3 July 2008, plaintiff, proceeding pro se, filed a complaint against defendant in Forsyth County Superior Court, seeking damages for intentional infliction of emotional distress and defamation. Plaintiff lives in Unit #21 at Buckeye Manor Townhomes, which are owned and operated by defendant. In his complaint, plaintiff alleged that he sent a letter to defendant several months prior to the filing of the complaint in which he notified defendant of a dispute with neighboring tenants. In that letter, plaintiff complained that his neighbors were parking their vehicles in unassigned spots, blocking his vehicle, and engaging in hostile conduct towards him. He asked in this letter that defendant take action to prevent these incidents in the future.

Plaintiff's complaint alleged that defendant, in response to his letter, sent him a letter threatening to evict him, to direct the homeowners' association to take over his parking space, and to have him targeted by law enforcement officers for driving a vehicle without North Carolina tags. Plaintiff's complaint further alleged that he "reasonably believed that defendant intended to carry out the threats, and as a result, plaintiff lived in constant fear that plaintiff would suffer physical harm at the hands of defendant." According to the complaint, plaintiff "suffered severe mental pain, fright, distress, shock, anxiety, and anguish as a consequence, to plaintiff's damage."

Plaintiff's complaint also alleged that the letter sent by defendant to him contained false and defamatory statements. Specifically, the complaint alleged that the following statements in defendant's letter were false and defamatory:

"The letter you sent via Certified Mail seems an expensive way for you to complain but since this kind of thing seems to be a hobby for you let us assure you that we are taking your continued harassment very seriously.

Please be advised that we have contacted our attorney once again about your continued pestering behavior.

Your harassment has caused several tenants to move from Buckeye and be warned that if your continued threats or frivolous civil summons cause one of our tenants to move out we will seek from you and win recovery for loss of income for as long as the townhouse remains unoccupied, attorney fees, any cost to prepare the vacated townhouse for new tenant move in, and any awards that the court may deem suitable for the harassment we have put up with.

It is sad that the children of our tenants do not feel safe in their own yard (the Common Grounds of Buckeye Townhomes) because they feel they are being stalked by you and your constant gawking, picture taking, threats, etc.

We have advised our attorney to do whatever it takes to stop your nuisance behavior and to take any legal action for harassment and any other legitimate complaint we can bring before you.

We have also contacted the president of the Home Owners association regarding your irritating and unwarranted complaints.

From our understanding he has met with you more than once regarding the problems you have created since you have been a Buckeye tenant.

The Home Owners Association President also informed us that he is going to contact your landlord about the constant trouble you seem to instigate.

We are pressing to have you removed from Buckeye Townhomes for causing so many unjustified problems.

We look forward to seeing you in court again for the other civil summons filed against our tenants in #11 and hope to see you even more embarrassed this time than last when the judge orders you to stop this harassment and reimburse us for the time and effort we have wasted enduring your nonsense."

(Emphasis original.)

The complaint alleged that "[s]uch defamatory matter was delivered by defendant to Robert D. Hinshaw, Buckeye Townhomes Homeowners Association, and Deputy James G. Teague, to be read by those persons who understood that the communication referred to the plaintiff." The complaint further alleged that "[i]n making this communication, defendant intended it to mean that plaintiff was unworthy and was intended to deprive plaintiff of his good name, reputation, to bring the plaintiff into scandal, ridicule and disrepute before his friends, neighbors, acquaintances, and the public in general, and to hold plaintiff up to public scorn, contempt, ridicule and disgrace."

The complaint alleged that plaintiff's reputation was injured and that he had "suffered a tremendous amount of embarrassment, humiliation, and mental agony" and "been held in contempt, calumny, distrust, and ridicule." Finally, the complaint alleged that "[a]t the time of the willful defamatory publication, defendant knew that the words were untrue, and in making the willful defamatory publication, defendant acted with malice toward plaintiff with such recklessness and carelessness as to amount to a wanton disregard of the rights of plaintiff" and to warrant punitive damages.

In response, defendant filed a motion to dismiss pursuant to Rule 12(b)(6), contending that plaintiff had failed to allege the essential elements of a claim for defamation or for intentional infliction of emotional distress. Defendant also filed a motion for sanctions pursuant to Rule 11, alleging that plaintiff had filed a previous lawsuit against defendant that was dismissed and resulted in plaintiff being sanctioned in the amount of $2,000.00 and that plaintiff had filed over 50 actions in the last six years, some of which were for identical complaints.

On 3 September 2008, the trial court granted defendant's motion to dismiss plaintiff's claims with prejudice. The trial court also imposed Rule 11 sanctions on plaintiff of $2,000.00 for defendant's attorneys' fees and costs. Plaintiff timely appealed to this Court.


Plaintiff first contends that his complaint sufficiently stated a claim for defamation to survive defendant's motion to dismiss.1 This Court reviews a trial court's ruling on a motion to dismiss de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). We must, therefore, determine whether the allegations in plaintiff's complaint, if treated as true, are sufficient to state a legal claim for relief. Id.

"To be actionable, a defamatory statement must be false and must be communicated to a person or persons other than the person defamed." Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993). In addition, in North Carolina, our courts

"recognize[] three classes of libel: (1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous, which are termed libels per quod."

Craven v. SEIU Cope, 188 N.C. App. 814, 816-17, 656 S.E.2d 729, 732 (2008) (quoting Daniels v. Metro Magazine Holding Co., 179 N.C. App. 533, 538, 634 S.E.2d 586, 590 (2006), appeal dismissed and disc. review denied, 361 N.C. 692, 654 S.E.2d 251 (2007)).

On appeal, plaintiff argues only generally that defendant "published derogatory statements to third parties about Plaintiff[,]" that the complaint "contained allegations sufficient to show that the matter complained of was defamatory as to the Plaintiff[,]" and that "the defamatory matter was communicated to third persons who understood that it referred to the Plaintiff." (Internal citation to the record omitted.) Plaintiff's complaint purports to allege claims for libel per se and libel per quod. Plaintiff does not, however, on appeal, specifically explain in what way his complaint's allegations are sufficient to fall into one of those two categories of libel.

This Court has defined libel per se as

"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."

Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002) (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)), appeal dismissed and disc. review denied, 357 N.C. 163, 580 S.E.2d 361, cert. denied, 540 U.S. 965, 157 L. Ed. 2d 310, 124 S. Ct. 431 (2003).

A court reviewing an allegedly defamatory statement must review the words "as ordinary people would understand" them. Renwick v. News & Observer Pub. Co., 310 N.C. 312, 319, 312 S.E.2d...

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