Opinion
No. COA15-1101
05-03-2016
NANCY ALFORD, Plaintiff, v. RENEE GREEN, Defendant.
Edmundson & Burnette, L.L.P., by James T. Duckworth, III, for plaintiff-appellant. Jackson Lewis P.C., by Ann H. Smith, for defendant-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Granville County, No. 13 CVS 1034 Appeal by plaintiff from order entered 22 May 2015 by Judge Henry W. Hight, Jr. in Granville County Superior Court. Heard in the Court of Appeals 31 March 2016. Edmundson & Burnette, L.L.P., by James T. Duckworth, III, for plaintiff-appellant. Jackson Lewis P.C., by Ann H. Smith, for defendant-appellee. TYSON, Judge.
Nancy Alford ("Plaintiff") appeals from the trial court's order, which awarded attorney's fees incurred by Renee Green ("Defendant") payable by Plaintiff to the Town of Stem. We affirm.
I. Background
Plaintiff was the elected incumbent mayor of Stem, North Carolina in the fall of 2013. Defendant served as an elected Town Commissioner at that time. Plaintiff and Defendant were engaged in competing campaigns for election to the office of mayor. The election was to be held in November of 2013.
In September of 2013, the town's commissioners had considered the installation of a security gate in one of the town's subdivisions to "curb criminal activity." The town's citizens learned of the proposal and a petition in opposition to the installation of the security gate was circulated. Defendant saw Plaintiff's husband present the petition to two of her neighbors.
The issue of the security gate became hotly contested in the town. Many citizens of the Stem attended the regularly scheduled meeting of the Town Commissioners on 21 October 2013. Some of the citizens present at the meeting became angry and unruly while the issue of the security gate was discussed.
Nancy Compton ("Compton"), who was a candidate for election to the Stem Board of Commissioners, was present at the 21 October 2013 meeting of the Commissioners. Plaintiff and Compton supported each other's candidacies in the election and campaigned together. After the meeting concluded, a verbal altercation occurred outside the Stem Town Hall between Defendant and Compton. Following this altercation, Defendant claimed Plaintiff's son "trashed [her] to no end on Facebook," and she decided to press charges against him.
While Defendant was at the courthouse taking out a restraining order against Compton's son, she saw Compton at the courthouse. Compton was attempting to obtain a restraining order against Defendant's son. Defendant overheard Compton telephone Plaintiff to obtain Defendant's son's address.
On 23 October 2013, Defendant sent an email to Robert Hornick, Esq., the attorney for the Town of Stem, and copied Plaintiff, other Town Commissioners, and the Town Clerk. The email accused Plaintiff of malfeasance in office by assisting Compton to press charges against Defendant's son. Defendant sent two subsequent emails to the same group, which accused Plaintiff of acting "unethically."
On 13 December 2013, Plaintiff filed a suit in Superior Court against Defendant concerning Defendant's statements in the emails. Plaintiff brought claims against Defendant for intentional infliction of emotional distress and libel per se, and sought punitive damages. Plaintiff also sought a restraining order to prevent Defendant from "continuing to engage in this libelous and defamatory behavior" against Plaintiff.
On 10 February 2014, Defendant filed a Rule 12(b)(6) motion to dismiss Plaintiff's claims. Defendant argued the allegations in Plaintiff's complaint are insufficient as a matter of law to establish the elements for intentional infliction of emotional distress, defamation, and to recover punitive damages. Plaintiff thereafter amended her complaint to allege claims of negligent infliction of emotional distress and slander per se. By order entered 22 October 2014, the trial court denied Defendant's motion to dismiss and allowed her thirty days from the entry of the order to serve an answer.
Following the denial of Defendant's motion to dismiss, counsel for the parties agreed to mediate prior to Defendant's filing of an answer and counterclaims. By consent order entered 25 June 2014, the parties scheduled mediation for 16 July 2014. If the parties failed to resolve their dispute through mediation, Defendant was allowed thirty days following the conclusion of the mediation to file her answer and counterclaims.
On 20 August 2014, Defendant filed counterclaims against Plaintiff for slander per se and intentional infliction of emotional distress, and sought punitive damages. Defendant alleged Plaintiff had uttered multiple untrue statements to third parties, which had accused Defendant of improprieties in her real estate business. Plaintiff's attorney withdrew from representation of Plaintiff after Defendant filed her answer and counterclaims, citing "irreconcilable differences" with Plaintiff. Plaintiff proceeded before the trial court pro se.
On 18 March 2015, Defendant filed a motion for summary judgment, which the trial court granted, dismissing all of Plaintiff's claims with prejudice. Plaintiff failed to present any affidavits or other evidence in opposition to Defendant's motion for summary judgment. Defendant voluntarily dismissed her counterclaims, without prejudice, following the court's ruling on summary judgment. Defendant also filed a motion and sought an order to award her costs and reasonable attorney's fees she had incurred in litigation. Defendant made numerous attempts to settle this matter with Plaintiff before the hearing on her motion for summary judgment and thereafter. Plaintiff refused to settle this action.
In addition to the costs incurred, Defendant incurred attorney's fees in excess of $73,033.90. Pursuant to N.C. Gen. Stat. § 160A-167, the Town of Stem Board of Commissioners approved a resolution for the taxpayers of the town to pay Defendant's attorney's fees. By order entered 22 May 2015, the trial court directed Plaintiff to pay costs in the amount of $4,690.15 and Defendant's attorney's fees in the amount of $73,033.90. Plaintiff was ordered to pay these sums directly to the town to reimburse the town for paying Defendant's attorney's fees.
Plaintiff appeals from the trial court's award of attorney's fees in favor of Defendant under N.C. Gen. Stat. § 6-21.5 and N.C. Gen. Stat. § 1A-1, Rule 11. She does not challenge the amount of attorney's fees she was ordered to pay or the trial court's award of costs in favor of Defendant pursuant to N.C. Gen. Stat. §§ 6-19, 6-20, and 7A-305.
II. Issues
Plaintiff argues the trial court erred by: (1) finding and concluding Plaintiff's complaint presented a complete absence of a justiciable issue and ordering her to pay Defendant's attorney's fees under N.C. Gen. Stat. § 6-21.5; (2) finding and concluding Plaintiff's complaint was filed for an improper purpose and was not accurate, and ordering her to pay Defendant's attorney's fees under Rule 11 of the Rules of Civil Procedure; and, (3) failing to make findings of fact and conclusions of law that Defendant was eligible to have the Town of Stem pay her attorney's fees under N.C. Gen. Stat. § 160A-167.
III. Award of Attorney's Fees
A. N.C. Gen. Stat. § 6-21.5
N.C. Gen. Stat. § 6-21.5 governs "[a]ttorney's fees in nonjusticiable cases," and provides:
In any civil action . . . the court, upon motion of the prevailing party, may award a reasonable attorney's fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading. The filing of a general denial or the granting of any preliminary motion, such as a motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12, a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), a motion for a directed verdict pursuant to G.S. 1A-1, Rule 50, or a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, is not in itself a sufficient reason for the court to award attorney's fees, but may be evidence to support the court's decision to make such an award. A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney's fees. The court shall make findings of fact and conclusions of law to support its award of attorney's fees under this section.N.C. Gen. Stat. § 6-21.5 (2015) (emphasis supplied).
1. Standard of Review
"The trial court's findings of fact are conclusive on appeal if supported by competent evidence, even when the record includes other evidence that might support contrary findings." Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002) (citation omitted). "Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding." Eley v. Mid/East Acceptance Corp. of N.C., 171 N.C. App. 368, 369, 614 S.E.2d 555, 558 (2005) (citation and internal quotation marks omitted).
This Court engages in a two-step analysis to review the trial court's award of attorney's fees under N.C. Gen. Stat. § 6-21.5. "The presence or absence of justiciable issues in the pleadings is . . . a question of law that this Court reviews de novo." Wayne St. Mobile Home Park, LLC v. N. Brunswick Sanitary Dist., 213 N.C. App. 554, 561, 713 S.E.2d 748, 753 (2011) (citation omitted). If the Court finds the absence of a justiciable issue, the trial court's decision to award attorney's fees is reviewed for an abuse of discretion. Persis Nova Constr., Inc. v. Edwards, 195 N.C. App. 55, 67, 671 S.E.2d 23, 30 (2009).
2. Absence of a Justiciable Issue
The trial court made the following findings based upon Plaintiff's deposition testimony:
9. In the lawsuit, Plaintiff alleged that the contents of the email were defamatory and caused her emotional distress.
10. However when questioned at her deposition, Plaintiff admitted that the statements Defendant made in the email were true:
Q: [D]o you disagree with any of the information that's in these emails?
A: I have [the emails], and I do not.
Q: You don't agree with any - disagree?
A: I do not disagree.
Q: Did you have a problem with the emails?
A: Yes, ma'am.
Q: And what was the problem with that?
A: When she was asking [the attorney] to fire me for malfeasance. . .
Q: . . . Let me ask just a few questions them [sic] to make sure that I understand your testimony. So as far as you're concerned everything that is said in this email is correct. The only problem with the email that you have is that Ms. Green was threatening to file these criminal charges against you - or that she was saying "I think criminal charges should be filed immediately."
A: Yes , Yes.
Q: And that's the only problem you had with the email?
A: Yes. Yes. Yes. At that time, I took her for her word. I figured if I did not do it first, she would have did it to me.
. . . .
11. Plaintiff further testified that she filed the lawsuit because she "jumped to the trigger first":
Q: So even though the email - in the email, Ms. Green said, "I think criminal charges should be filed," no criminal charges, in fact, were ever filed against you?
A: No, ma'am, because I jumped to the trigger first. God told me to do unto others before they did unto you. . . And then again, God told me that if I don't do this right here it may have been filed against me.
Q: And when you say, "If I don't do this right here," what do you -
A: If I don't file my lawsuit, it may be done against me.
Q: So your testimony is you filed your lawsuit because you were trying to prevent -
A: I was in fear of -
Q: Renee from -
A: Yes, of being - filed one against me. But it didn't bother me that much, because Renee is mayor now and she's been to -to the mayor classes and all, and you cannot be uprooted in that office.
. . . .
41. As demonstrated by Plaintiff's deposition testimony, Plaintiff's claims were nonjusticiable at the time she filed her Complaint in this action as Plaintiff admitted that the statements made in Defendant's email were true.
42. Indeed, the deposition testimony verifies a complete absence of any justiciable issues - a fact which Plaintiff knew before she ever filed her Verified Complaint.
43. Under N.C. Gen. Stat. §6-21.5, attorney's fees may be awarded by the trial court in its discretion, where "upon motion of the prevailing party, . . . the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading." N.C. Gen. Stat. § 6-21.5.(underline and bold emphasis original). The trial court ordered Plaintiff to pay Defendant's attorney's fees under both Rule 11 and N.C. Gen. Stat. § 6-21.5.
44. Sanctions under N.C. Gen. Stat. §1A-1, Rule 11, may be imposed if an action is filed for an improper purpose.
45. Plaintiff has not proffered any facts to support her claims. Plaintiff's Complaint is absolutely nonjusticiable, and she is subject to this court entering an order requiring her to pay costs and Defendant's attorney's fees.
46. Here, Plaintiff's deposition testimony reveals that at the time she signed the verification to her Complaint, Plaintiff knew that the allegations in the Complaint were not factually accurate in violation of the mandates of Rule 11.
47. Further, the timing of the filing of the Verified Complaint - immediately prior to Defendant assuming her office as Mayor - supports a finding that Plaintiff filed this action in bad faith and for an improper purpose.
Plaintiff argues findings of fact 41, 42, and 45 set forth supra are inaccurate and unsupported by competent evidence, and the trial court erred by finding and concluding Plaintiff's claims were nonjusticiable under N.C. Gen. Stat. § 6-21.5 at the time she filed her complaint.
"'In order to find complete absence of a justiciable issue it must conclusively appear that such issues are absent even giving the pleadings the indulgent treatment they receive on motions for summary judgment or to dismiss.'" Credigy Receivables, Inc. v. Whittington, 202 N.C. App. 646, 655, 689 S.E.2d 889, 895 (2010) (quoting K & K Development Corp. v. Columbia Banking Fed. Savings & Loan, 96 N.C. App. 474, 479, 386 S.E.2d 226, 229 (1989)).
Under this deferential review of the pleadings, a plaintiff must either: (1) "reasonably have been aware, at the time the complaint was filed, that the pleading contained no justiciable issue"; or (2) be found to have "persisted in litigating the case after the point where [he] should reasonably have become aware that pleading [he] filed no longer contained a justiciable issue."Id. (quoting Brooks v. Giesey, 334 N.C. 303, 309, 432 S.E.2d 339, 342 (1993)).
"The mere fact that [Plaintiff's] complaint survived a Rule 12(b)(6) motion to dismiss is not determinative proof of justiciability." Winston-Salem Wrecker Ass'n v. Barker, 148 N.C. App. 114, 119, 557 S.E.2d 614, 618 (2001). Our Supreme Court has explained:
[I]t is . . . possible that a pleading which, when read alone sets forth a justiciable controversy, may, when read with a responsive pleading, no longer present a justiciable controversy . . . . Had [the] defendant failed to answer, the allegations in plaintiff's complaint would have been deemed admitted, and a default judgment would have been possible. See N.C.G.S. § 1A-1, Rules 8 and 55 (1990). Thus, until an answer was filed, [the] plaintiff's complaint . . . did set forth a justiciable issue. However, when [the] defendant's answer . . . was filed and served, it should have
become apparent to plaintiff that . . . the complaint no longer contained a justiciable issue.Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 258, 400 S.E.2d 435, 438 (1991).
Plaintiff argues the trial court erred by finding and concluding her libel per se claim was nonjusticiable. She does not argue the other claims she included in her complaint were justiciable and those claims are abandoned.
Libel per se is
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.Phillips v. Winston-Salem/Forsyth Cnty. 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) (citation omitted).
Plaintiff cites the following statements Defendant wrote in her email to the Town Attorney as defamatory:
As our town attorney we all fully expect you to step in and do something with the Mayor [Plaintiff] immediately. I THINK CRIMINAL CHARGES SHOULD BE FILED AGAINST HER IMMEDIATELY. This is not a game! She has jeopardized our town long enough.
. . . .
MALFENANCIES [sic] OF OFFICE IS AN UNDERSTATEMENT FOR WHAT THE MAYOR HAS DONE THIS TIME. I am researching criminal charge [sic] that I can have the mayor charged with as to her actions as Mayor . . .(emphasis in original). The conduct Defendant complains of in the email pertains to Plaintiff's "helping [Compton] press charges against [Defendant's] son."
Plaintiff argues Defendant's accusations are libel per se because malfeasance is an offense of moral turpitude. Plaintiff cites to Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986) in support of her argument. In Talbert, this Court held the defendant's statements that the plaintiff "forged his letters of credit," and was a "drug dealer" constituted slander per se. Id. at 481, 343 S.E.2d at 8-9. These crimes are felonies. See N.C. Gen. Stat. §§ 14-119 and 90-95. The Court explained, "[a]ccusations of crime or offenses involving moral turpitude or defamatory statements about a person with respect to his trade, occupation or business are slander per se; the injurious character of the words and special damage they have caused need not be proved." Id.
"A crime is 'infamous' . . . if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duties and a mind fatally bent on mischief[.]" State v. Mann, 317 N.C. 164, 170, 345 S.E.2d 365, 369 (1986) (citation omitted). Plaintiff cites no authority and fails to show that malfeasance in office, which is a misdemeanor offense, is an "infamous crime" or one involving moral turpitude. See N.C. Gen. Stat. § 14-230 (2015) (A public official who "shall willfully omit, neglect or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, . . . shall be guilty of a Class 1 misdemeanor.")
Furthermore, the statements contained in Defendant's email are expressions of opinion. It is clear from the context of the email that Defendant expressed nothing more than her opinion that Plaintiff had committed malfeasance in office when she assisted Compton by providing her with Defendant's son's address. "[A] pure expression of opinion is protected because it fails to assert actual fact. Rhetorical hyperbole, in contrast, might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously." Daniels v. Metro Magazine Holding Co., 179 N.C. App. 533, 539, 634 S.E.2d 586, 590 (2006). This argument is overruled.
B. Rule 11
In addition to N.C. Gen. Stat. § 6-21.5, the trial court concluded an award of Defendant's attorney's fees was proper under Rule 11 of the Rules of Civil Procedure because Plaintiff's complaint was filed for an improper purpose and she knew the allegations were not factually accurate. See N.C. Gen. Stat. § 1A-1, Rule 11 (2015).
In light of our holding that the trial court did not err by ordering Plaintiff to pay Defendant's attorney's fees under N.C. Gen. Stat. § 6-21.5, it is unnecessary to address whether the award of attorney's fees pursuant to Rule 11 was error.
IV. Findings and Conclusions Under N.C. Gen. Stat. § 160A-167
Plaintiff argues the trial court erred by failing to make required findings of fact and conclusions of law to rule Defendant was eligible to have the Town of Stem pay her attorney's fees pursuant to N.C. Gen. Stat. § 160A-167.
The statute provides:
(a) Upon request made by or on behalf of any member . . . of the governing body of any . . . city . . . [the city] may provide for the defense of any civil or criminal action or proceeding brought against him either in his official or in his individual capacity, or both, on account of any act done or omission made or any act allegedly done or omission allegedly made, in the scope and course of his employment or duty as an employee or officer of the city. . . . Nothing in this section shall be deemed to require any city . . . to provide for the defense of any action or proceeding of any nature.N.C. Gen. Stat. § 160A-167 (2015).
The trial court found:
39. As voted on and allowed by a resolution of the Town of Stem Board of Commissioners as authorized by N.C. Gen. Stat. § 160A-167, Defendant's [attorney's] fees were paid by the taxpayers of the Town of Stem. The fees were not paid by an insurance company.
40. These fees were reasonable and necessary to the defense of this action.
Plaintiff argues the trial court erred by failing to make any findings of fact or conclusions of law regarding Defendant's eligibility to receive a defense at taxpayers' expense under the statute.
By resolution, the town authorized the payment of Defendant's attorney's fees by taxpayers pursuant to N.C. Gen. Stat. § 160A-167. The record does not show this resolution was challenged in the trial court below. Plaintiff was not present at the hearing on Defendant's motion for attorney's fees, and was unrepresented by counsel. Plaintiff's husband appeared at the hearing, informed the court that Plaintiff was absent due to a medical issue, and requested a continuance. Plaintiff has not challenged the trial court's denial of the continuance.
Defendant's attorney informed the trial court at the hearing on the motion for attorney's fees that the town had paid Defendant's attorney's fees. Defendant's counsel stated Defendant would reimburse the town if she were to receive an award of attorney's fees. The trial court did not address, nor rule upon, whether Defendant was eligible to receive a defense under the statute. Plaintiff cannot now raise this issue for the first time on appeal. See N.C. R. App. P. 10(a)(1); Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) ("This Court has long held that issues and theories of a case not raised below will not be considered on appeal[.]").
As discussed supra, Plaintiff is liable for the payment of Defendant's attorney's fees pursuant to N.C. Gen. Stat. § 6-21.5. Pursuant to the unchallenged resolution, the town paid Defendant's attorney's fees. Instead of ordering Plaintiff to pay the attorney's fees to either Defendant or her attorney, the trial court ordered her to pay them directly to the town. The award of attorney's fees under N.C. Gen. Stat. § 6-21.5 is wholly separate from the issue of whether the town properly passed the resolution under N.C. Gen. Stat. § 160A-167 to pay Defendant's attorney's fees. The latter issue is not before us. The trial court simply ordered Plaintiff to reimburse the town for the payment of Defendant's attorney's fees, which is consistent with the purpose of N.C. Gen. Stat. § 6-21.5 "to discourage frivolous legal action." Short v. Bryant, 97 N.C. App. 327, 329, 388 S.E.2d 205, 206 (1990). This argument is dismissed.
V. Conclusion
Plaintiff has failed to show the trial court erred in finding and concluding her complaint presented "a complete absence of a justiciable issue" on her claim of libel per se and awarding attorney's fees under N.C. Gen. Stat. § 6-21.5. Plaintiff has failed to preserve for appellate review any issue pertaining to the propriety of the portion of the trial court's order that directs Plaintiff to pay the attorney's fees to the Town of Stem to reimburse the town for its payment of Defendant's attorney's fees under N.C. Gen. Stat. § 160A-167. The trial court's award of Defendant's attorney's fees, to be paid by Plaintiff to the Town of Stem, is affirmed.
AFFIRMED.
Chief Judge McGEE and INMAN concur.
Report per Rule 30(e).