An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-799


Filed: 5 August 2003



v .                         Pasquotank County
                            No. 01 CVS 579
individually and in his
official capacity as City Manager,
individually and in his
official capacity as Chief
of Police, and THE CITY


    Appeal by plaintiff from orders entered 5 March 2002 by Judge Quentin T. Sumner in Pasquotank County Superior Court. Heard in the Court of Appeals 25 March 2003.

    Anthony Lambert, pro se plaintiff.

    Hornthal, Riley, Ellis & Maland, L.L.P., by L. Phillip Hornthal, III for the defendants.

    ELMORE, Judge.

    Plaintiff was convicted by a jury on 4 March 1998 of the unauthorized practice of law. On appeal, the conviction was affirmed, but the case was remanded for resentencing in an unpublished opinion filed 16 November 1999 and reported as State v. Lambert, 135 N.C. App. 633, 528 S.E.2d 646 (1999), disc. review denied, 351 N.C. 478, 543 S.E.2d 503 (2000). Plaintiff wasresentenced on 22 May 2000 and timely filed a notice of appeal of that sentence. Plaintiff brought to the Superior Court a motion to appoint counsel in his appeal. In an order dated 14 February 2001, the Superior Court did not appoint counsel, but concluded that the appeal had not been perfected and was accordingly dismissed. On 28 February 2001 the Superior Court issued an order for the plaintiff's arrest based on probation violations occurring on 14, 15, 16, 17, 19, 22, and 26 February 2001.
    In pursuit of its duty to serve arrest warrants issued by the court, the Elizabeth City Police Department provided information to the City of Elizabeth City, which was then broadcast on local public access channel 11. The information included plaintiff's picture, name, address, and that he was wanted for probation violation, and was broadcast on 14, 15, 16, and 17 May 2001. On 14 May 2001, however, this Court vacated the 14 February 2001 order dismissing plaintiff's appeal and the 28 February 2001 order for arrest.
    Plaintiff brought the present action alleging libel, slander, and civil conspiracy based on the wrongful and malicious broadcast of the plaintiff's wanted status. Defendants answered with several defenses and moved for summary judgment. Plaintiff moved to amend the complaint. The trial court heard the motions simultaneously and denied the plaintiff's motion to amend, and granted summary judgment in favor of all defendants. Plaintiff brings this appeal.

I.     Motion to Amend
    Plaintiff first assigns error to the trial court's denial of his motion to amend the complaint. The trial court in its order cited as the basis for denying the motion that it was filed after the date that defendant's motion for summary judgment was filed and calendared for hearing and that defendant's summary judgment motion was granted before the motion to amend was heard.
    Since defendants had already filed a responsive pleading, plaintiffs could amend their complaint only by the defendants' written consent, which was never given, or by leave of court. Duncan v. Ammons Construction Co., 87 N.C. App. 597, 600, 361 S.E.2d 906, 908 (1987). Although leave to amend should be freely given, the motion is addressed to the discretion of the trial judge and is not reviewable on appeal in the absence of a showing of an abuse of discretion. Id.
    In addition, subsection (d) of Rule 6 of the North Carolina Rules of Civil Procedure provides that:
        [a] written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.

N.C. Gen. Stat. § 1A-1, Rule 6(d) (2001). Not only was plaintiff's motion to amend filed after a responsive pleading, plaintiff also failed to serve notice of hearing on the defendants.
    Plaintiff cites Carolina Builders v. Gelder & Associates, 56 N.C. App. 638, 289 S.E.2d 628 (1982) in support of the notion that it is an abuse of discretion for a judge to not rule on a motion to amend prior to entering summary judgment. We note that in theCarolina Builders case the motion to amend was filed a full eight months before the hearing on defendant's motion for summary judgment. Id. at 641, 289 S.E.2d at 629. In the case at bar, plaintiff served his motion to amend on the defendants the Thursday before the Monday hearing of the summary judgment motion. No notice of hearing was served on the defendants. The trial court heard the motions simultaneously and denied the motion to amend. The trial court did not abuse its discretion in so ruling.
II.     Summary Judgment
    Plaintiff also asserts that the trial court erred in granting defendants' motion for summary judgment.
    Summary judgment is appropriate when “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 that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). On appeal, the standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law. See Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). The evidence presented is viewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).
    The material facts in this case are undisputed. The broadcast of plaintiff's status as wanted for probation violation ran on May 14, 15, 16, and 17, 2001. When the defendants received the statutorily authorized official notice that the Court of Appealshad vacated the order of the Superior Court mandating the arrest warrant, they immediately pulled the broadcast. See N.C. Gen. Stat. § 15A-1452. Local government officials must comply with the mandates of their Superior Court, and until valid notice of the recision of that mandate is given. A hand delivered copy of the Court of Appeals order brought by the plaintiff is not valid, but must come through the Clerk of Court and the proper local officials. The defendants then had the complete defense of truth against the defamation claim since the Superior Court had issued the order for arrest and so the plaintiff was in fact wanted. Even if the order for arrest was in error, which this Court later determined it to be, until official notice of that determination is given, litigants must follow the mandates of the Superior Court. Since the defendants had an affirmative defense that the plaintiff cannot surmount, summary judgment was appropriate. Shuping v. Barber, 89 N.C. App. 242, 244, 365 S.E.2d 712, 714 (1988).
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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