Appeal by plaintiffs from orders and judgments entered 24 June
1997 by Judge Marvin K. Gray in Mecklenburg County Superior Court.
Heard in the Court of Appeals 30 March 1999.
Wood & Francis, PLLC, by John S. Austin; Wyrick, Robbins,
Yates & Ponton, LLP, by Gary V. Mauney; for plaintiff-
appellants.
Jones, Hewson & Woolard, by Harry C. Hewson and Lawrence J.
Goldman, for defendant-appellees Jack L. Crain, Daniel B.
Whitesides, Richard L. Wing, and The Nalle Clinic.
Koy E. Dawkins, P.A., by Koy E. Dawkins, for defendant- appellee Carolyn B. Coulam.
Dean & Gibson, L.L.P., by Michael G. Gibson and John W. Ong,
for defendant-appellee Donald E. Pittaway.
F. Kevin Mauney for defendant-appellees Morgan D. Gainor and
Charles J. Gainor.
McGEE, Judge.
This case arose from a newspaper story entitled "'Miracle
Baby' Attempts Raise Questions" (the story), which was published in
The Charlotte Observer on 15 September 1991. The story was about
infertility treatment, with special emphasis on in vitro
fertilization and the type of medical training expected of
physicians performing that procedure. The story focused on
plaintiffs George L. Gaunt (Gaunt) and the Center for Reproductive
Medicine, P.A. (the Center). Defendants Jack L. Crain, Richard L.
Wing and Daniel B. Whitesides, all of whom were shareholders and
employees of defendant The Nalle Clinic, are infertility
specialists and were interviewed for the newspaper story as to
their opinions of Gaunt's expertise as an infertility specialist
and his work at the Center. Plaintiffs allege that several of the
statements made by defendants Crain, Wing, and Whitesides in the
story, and the interviews leading up to its publication, were
defamatory and constituted unfair and deceptive practices underN.C. Gen. Stat. § 75-1.1.
Defendant Donald E. Pittaway, Director of Reproductive
Endocrinology at Bowman Gray School of Medicine, was similarly
interviewed for the story and made several statements regarding his
opinion of Gaunt's training and expertise in the field of in vitro
fertilization. Pittaway also made statements to the effect that,
in his opinion, Gaunt made a practice of ordering tests that were
unnecessary or excessive. Plaintiffs filed this action alleging
these statements were defamatory and constituted an unfair and
deceptive practice.
Defendants moved to dismiss plaintiffs' claims for unfair and
deceptive practices pursuant to N.C.R. Civ. P. 12(c), and the trial
court granted the motion on 10 May 1994. Defendants then moved for
partial summary judgment pursuant to N.C.R. Civ. P. 56(c) on the
issue of whether plaintiffs were public figures for purposes of the
newspaper story. Plaintiffs moved to strike certain exhibits
defendants offered supporting their motion for partial summary
judgment. Plaintiffs' motion to strike was denied and the trial
court granted defendants' motion for partial summary judgment
determining plaintiffs were public figures for purposes of the
story in orders entered 25 July 1995. Defendants then moved for
summary judgment on plaintiffs' defamation claims. These motionswere subsequently granted in orders and judgments entered on 24
June 1997. Plaintiffs timely filed a notice of appeal of the 24
June 1997 orders and judgments on plaintiffs' defamation claims.
On appeal, plaintiffs argue the trial court erred in: (1)
dismissing plaintiffs' claims of unfair and deceptive practices
under N.C. Gen. Stat. § 75-1.1; (2) granting defendants' motions
for partial summary judgment, thereby establishing plaintiffs'
status as limited purpose public figures; and (3) granting
defendants' motions for summary judgment on plaintiffs' defamation
claims.
I.
[1]/A HREF>Before addressing the arguments, however, we first
consider whether the plaintiffs' appeals are properly before us.
First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242,
246, 507 S.E.2d 56, 59 (1998) (citing
Bailey v. Gooding, 301 N.C.
205, 208, 270 S.E.2d 431, 433 (1980)). Defendants filed a motion
to strike plaintiffs' first assignment of error for plaintiffs'
failure to designate all judgments and orders from which appeal was
taken. Plaintiffs filed a response arguing that the first
assignment of error was properly before our Court.
The substituted notice of appeal in the amended record on
appeal stated: Plaintiffs George L. Gaunt and Center for
Reproductive Medicine, P.A. hereby give notice
of appeal to the North Carolina Court of
Appeals from those Orders and Judgments by the
Honorable Marvin K. Gray signed and filed in
this action on June 24, 1997, granting all the
defendants' motions for summary judgment,
dismissing plaintiffs' actions with prejudice,
and taxing costs against plaintiffs.
The substituted notice of appeal in the amended record on appeal
clearly did not designate appeal from the orders entered by the
trial court prior to 24 June 1997. The substituted notice of
appeal in the amended record on appeal in this case designates
appeal only from the "Orders and Judgments" the trial court entered
on 24 June 1997. N.C.R. App. P. Rule 3(d) requires that the notice
of appeal "designate the judgment or order from which appeal is
taken[.]" Our Court has stated that a mistake in designating the
judgment, or in designating the part appealed from if only a part
is designated, should not result in loss of the appeal as long as
the intent to appeal from a specific judgment can be fairly
inferred from the notice and the appellee is not misled by the
mistake.
Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392
S.E.2d 422, 424 (1990). Even construing plaintiffs' notice of
appeal liberally, it does not give rise to any inference,
reasonable or otherwise, of an intent to appeal orders issued other
than the 24 June 1997 orders and judgments. The question before us then is whether the orders entered
prior to 24 June 1997, which are not designated in the notice of
appeal, are nevertheless reviewable. Defendants' motion to strike
was directed only to plaintiffs' first assignment of error which
addresses the trial court's order dismissing plaintiffs' claim of
unfair and deceptive practices entered 10 May 1994. However, we
must also determine whether the trial court's partial summary
judgment entered 25 July 1995 on the issue of whether plaintiffs
were public figures for purposes of the newspaper story is
reviewable.
N.C. Gen. Stat. § 1-278 (1996) provides that: "Upon an appeal
from a judgment, the court may review any intermediate order
involving the merits and necessarily affecting the judgment."
Defendants argue in their motion to strike that although plaintiffs
may obtain review of the public figure partial summary judgment,
plaintiffs may not assign error to the unfair and deceptive
practices claim under N.C.G.S. § 1-278 because that claim did not
involve the merits of the remaining claims of defamation and libel
and did not affect the judgment. Plaintiffs disagree, arguing that
case law establishes that the merits were involved, and courts
interpret "necessarily affecting the judgment" broadly.
Our Supreme Court recently set out in
Floyd and Sons, Inc. v.Cape Fear Farm Credit, 350 N.C. 47, 51-52, 510 S.E.2d 156, 158-59
(1999) the conditions under which an interlocutory order may be
reviewed under N.C.G.S. § 1-278: (1) the appellant must have timely
objected to the order; (2) the order must be interlocutory and not
immediately appealable; and (3) the order must have involved the
merits and necessarily affected the judgment.
Our Supreme Court twice noted in
Floyd that the plaintiffs
timely objected to an order that was later found to be reviewable
on appeal under N.C.G.S. § 1-278 despite the order's absence from
the notice of appeal.
Floyd, 350 N.C. at 51-52, 510 S.E.2d at 159.
The order in
Floyd to which the plaintiffs objected was made during
the actual trial of the case and only days before the final
judgment. However, the orders in the case before us were pre-trial
orders dismissing one claim and granting partial summary judgment
as to another issue.
Id. at 49, 510 S.E.2d at 158. The Court
stated in
Floyd that "plaintiffs' timely objection to the order was
overruled[,]" "plaintiffs duly objected to the election of remedies
order at trial" and "it [was] quite clear from the record that
plaintiffs sought appeal of the election order."
Id. at 51-52, 510
S.E.2d at 159. Our Supreme Court concluded that "[t]he objection
at trial to the election order properly preserved the question for
appellate review."
Id. at 52, 510 S.E.2d at 159. The record inthe case before us, unlike
Floyd, reflects nothing that could be
construed as an objection by plaintiffs to the orders entered by
the trial court prior to 24 June 1997.
Citing
Floyd, our Court recently held in
Inman v. Inman, 134
N.C. App. 719, 518 S.E.2d 777 (1999), that the plaintiff did not
preserve his right to appeal from an order which was not issued at
trial and which was omitted from the notice of appeal because,
under N.C.G.S. § 1-278 and the
Floyd opinion, the plaintiff did not
object to the ruling of the trial court denying his relief in part.
The plaintiff in
Inman moved to dismiss a judgment of absolute
divorce on 10 June 1997, and the defendant counterclaimed for
equitable distribution. The trial court found that part of the
separation agreement was void as against public policy and that the
defendant's counterclaim was barred as to some property, and filed
an order with these findings on 11 June 1997. After a bench trial
on the equitable distribution issues on 18 March 1998, the
plaintiff filed notice of appeal to our Court only from the 18
March 1998 judgment and not from the 11 June 1997 order. Regarding
the 11 June 1997 order, our Court stated that "[t]he record
reflects no objection to the order by either party, nor was notice
of appeal entered by either party."
Inman, 134 N.C. App. at 720,
518 S.E.2d at 778. Our Court then held that plaintiff made no such objection to the ruling
of the trial court which partially denied his
plea in bar, nor did he preserve his right to
appeal in any other manner. Thus, assuming
arguendo that the order of 11 June 1997 was an
interlocutory order, that order is not
reviewable on this appeal.
Id. at 723, 518 S.E.2d at 780.
The issue in the case now before us is very similar to the
issue in
Inman and
this Court is bound by
Inman. See In The Matter
of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) ("We hold . . . that a panel of the Court of Appeals is
bound by a prior decision of another panel of the same court
addressing the same question, but in a different case, unless
overturned by an intervening decision from a higher court.").
Plaintiffs' request for appellate review of the orders entered
prior to 24 June 1997 under N.C.G.S. § 1-278 is immediately
defeated for plaintiffs' failure to object to the orders, and
discussion of the two other requirements for review of an
intermediate order under
Floyd is obviated. Therefore, pursuant to
N.C.R. App. P. Rule 4(b), we do not address the 10 May 1994 order
dismissing plaintiffs' action for "unfair and deceptive acts or
practices" for failure to state a claim nor the orders entered 25
July 1995 granting defendants' motions for partial summary judgment
on the public figure issue.
II.
[2]Plaintiffs argue that the trial court erred by granting
summary judgment to defendants on plaintiffs' claims of defamation.
Our Court's standard of review on appeal from summary judgment
requires a two-part analysis. Summary judgment is appropriate if
(1) the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, show that there
is no genuine issue as to any material fact; and (2) the moving
party is entitled to judgment as a matter of law. N.C.R. Civ. P.
56(c);
see also Moore v. Coachmen Industries, Inc., 129 N.C. App.
389, 393-94, 499 S.E.2d 772, 775 (1998). Once the party seeking
summary judgment makes the required showing, the burden shifts to
the non-moving party to produce a forecast of evidence
demonstrating specific facts, as opposed to allegations, showing
that he can at least establish a
prima facie case at trial.
Id. at
394, 499 S.E.2d at 775;
see also Dickens v. Puryear, 302 N.C. 437,
276 S.E.2d 325 (1981).
There are two separate torts encompassed by the term
"defamation," being libel and slander. Generally, "libel is
written while slander is oral."
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). "[W]hen defamatory words are spoken with the intent that the words
be reduced to writing, and the words are in fact written, the
publication is both slander and libel."
Id. at 278, 450 S.E.2d at
756,
quoting Clark v. Brown, 99 N.C. App. 255, 261, 393 S.E.2d 134,
137,
disc. review denied, 327 N.C. 426, 395 S.E.2d 675 (1990).
However, since plaintiffs' complaint and arguments on appeal are
based entirely upon libel, we address only the issue 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.
Aycock v. Padgett, 134 N.C. App. 164, 166, 516 S.E.2d 907, 909
(1999).
In its 25 July 1995 order, the trial court determined that
plaintiffs were limited-purpose public figures for purposes of the
newspaper story. That ruling will not be reviewed on appeal for
the reasons stated above. Individuals found to be limited-purpose
public figures bear the burden of proving that alleged defamatory
statements against them were published with actual malice in order
to recover damages.
New York Times Co. v. Sullivan, 376 U.S. 254,
11 L. Ed. 2d 686 (1964);
see also Gertz v. Welch, 418 U.S. 323, 41L. Ed. 2d 789 (1974),
cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467
(1983). The United States Supreme Court has defined "actual
malice" as publication of a statement with knowledge that it was
false or with reckless disregard as to whether it was false.
New
York Times Co. at 279-80, 11 L. Ed. 2d at 706. Proving reckless
disregard requires the plaintiff to offer "sufficient evidence to
permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of [the] publication."
St. Amant v.
Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 267 (1968).
Because plaintiffs are limited-purpose public figures, they
bear the burden of not only showing that defendants knew of the
falsity of their statements, but also of proving that defendants
acted with actual malice. Whether a plaintiff has proven actual
malice on the part of a defendant is a matter that is properly
determined by the trial court.
See Proffitt v. Greensboro News &
Record, 91 N.C. App. 218, 371 S.E.2d 292 (1988). When a public
figure's libel action is considered at the summary judgment stage,
"the appropriate question for the trial judge is whether the
evidence in the record would allow a reasonable finder of fact to
find either that the plaintiff has shown actual malice by clear and
convincing evidence or that the plaintiff has not."
Id. at 221, 371
S.E.2d at 293-94
(citation omitted)
. The United States Supreme Court has held that statements of
opinion relating to matters of public concern which do not contain
provable false connotations are constitutionally protected.
Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L. Ed. 2d 1
(1990). Our review of the record in this matter reveals that the
statements made by defendants are statements of opinion affecting
matters of public concern within the context of
Milkovich. See id.
at 19, 111 L. Ed. 2d at 18. Assuming
arguendo that defendants'
statements were not matters of opinion, plaintiffs failed to show
malice on the part of defendants. For the foregoing reasons, the
trial court did not err in granting summary judgment to the
defendants on plaintiffs' defamation claims.
Affirmed.
Judges GREENE and MARTIN concur.
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