Appeal and Error--appealability--denial of motion to dismiss--defamation action--
concluded political campaign
An appeal from the denial of a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6)
was itself dismissed as interlocutory where the action arose from a television advertisement
during a political campaign. This case is governed by Boyce v. Cooper, 169 N.C. App. 572
(2005), from which it is indistinguishable.
Marshall Hurley for plaintiff-appellee.
Parker, Poe, Adams & Bernstein, L.L.P. by Robert W. Spearman
and Aretha V. Blake, and Everett, Gaskins, Hancock & Stevens,
by Hugh Stevens, for defendants-appellants.
STEELMAN, Judge.
Defendants appeal the trial court's denial of their motion to
dismiss plaintiff's defamation claim. For the reasons discussed
herein, we dismiss the appeal as interlocutory.
In the fall of 2002, plaintiff Carolyn Grant (Grant) and
defendant Bradley Miller (Miller) were opponents in an election for
a new seat in the United States House of Representatives. During
the campaign, defendants ran a political campaign advertisement
containing certain statements and opinions with regard to Grant's
fitness as a candidate for that office. Grant instituted this action against defendants, asserting
claims for declaratory judgment, conspiracy to violate her rights
under N.C. Gen. Stat. § 163-274 et seq, libel per se, slander per
se, and unfair and deceptive trade practices. Defendants moved for
dismissal pursuant to Rule 12(b)(6) of the Rules of Civil
Procedure. The trial court expressly refused to consider Grant's
affidavit, and elected in its discretion not to convert defendants'
motion into a motion for summary judgment as allowed under Rule
12(b). Defendants' motion to dismiss was granted, with the
exception of plaintiff's claims for libel per se and slander per
se, based upon the following statement contained in an October 2002
television advertisement: “Carolyn Grant even admitted in court
that she took $40,000 of her son's college money because she wanted
to buy a new car.”
Defendants appeal the denial of their motion to dismiss as to
this one advertisement. The trial court's dismissal of Grant's
remaining claims is not before this Court.
We first address whether defendants' appeal is interlocutory.
Ordinarily, a trial court's denial of a motion to dismiss pursuant
to Rule 12(b)(6) of the Rules of Civil Procedure is an
interlocutory order from which there is no right of appeal. Bolton
Corp. v. T. A. Loving Co., 317 N.C. 623, 629, 347 S.E.2d 369, 373
(1986). However, an interlocutory order is immediately appealable
when the order being challenged affects a substantial right of the
appellant, which would be lost absent immediate appellate review.
N.C. Gen. Stat. § 1-277(a) (2004); Lambe Realty Inv., Inc. v.Allstate Ins. Co., 137 N.C. App. 1, 3, 527 S.E.2d 328, 330 (2000).
The question of whether an interlocutory appeal affects a
substantial right must be considered in light of the “'particular
facts of that case and the procedural context in which the order
from which appeal is sought was entered.'” Sharpe v. Worland, 351
N.C. 159, 162-63, 522 S.E.2d 577, 579 (1999) (citations omitted).
The reason for these rules is to prevent fragmentary and
unnecessary appeals by permitting the trial division to dispose of
a case fully before it is presented to an appellate court. Waters
v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).
In Veazey v. Durham, the landmark case on interlocutory appeals,
Justice Ervin wrote “[t]here is no more effective way to
procrastinate the administration of justice than that of bringing
cases to an appellate court piecemeal through the medium of
successive appeals from intermediate orders.” 231 N.C. 357, 363,
57 S.E.2d 377, 382 (1950).
In Boyce v. Cooper, ___ N.C. App. ___, ___ S.E.2d ___ (2005)
(COA03-1542) (Boyce II), the plaintiff brought suit against the
defendant for defamation related to a political television
advertisement broadcast during the 2000 election for the office of
North Carolina Attorney General. The defendant moved for judgment
on the pleadings pursuant to Rule 12(c) of the Rules of Civil
Procedure. The trial court denied the motion and defendant
appealed. Defendant contended the appeal was not interlocutory
under the holding in Priest v. Sobeck, 357 N.C. 159, 579 S.E.2d 250
(2002) (per curiam adoption of the dissent at 153 N.C. App. 662,670-71, 571 S.E.2d 75, 80-81 (2003)(Greene, J., dissenting)).
After considering the particular facts of the case and the
procedural posture in which the case arose, this Court held the
denial of defendant's motion for judgment on the pleadings pursuant
to Rule 12(c) of the Rules of Civil Procedure did not affect a
substantial right, and determined the appeal was interlocutory.
Boyce II, ___ N.C. App. at ___, ___ S.E.2d at ___. The Court found
Priest distinguishable from the facts and procedural context of
Boyce II because in Priest the trial court granted defendant's
motion for summary judgment, whereas Boyce II dealt with the denial
of a 12(c) motion. Id. at ___, ___ S.E.2d at ___. This Court
found the difference in the procedural posture to be significant,
stating:
On a motion for summary judgment the forecast
of evidence is set. A court can more
adequately determine whether the forecast
evidence (affidavits, depositions, exhibits,
and the like) presents a factual issue under
the correctly applied legal standard for
actual malice. In reviewing the allegations
of the pleadings as in ruling on a 12(c)
motion, the court need only decide if the
elements of the claim, perhaps including
actual malice, have been alleged, not how to
apply that standard. An incorrect application
of the actual malice standard to deny summary
judgment results in trial, whereas denial of a
12(c) motion results in further discovery and
possibly summary judgment or other
proceedings.
Id. at ___, ___ S.E.2d at ___.
“Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned bya higher court.” In the matter of Appeal from Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989). The facts of this case
are indistinguishable from those in Boyce II. Both cases involve:
(1) a suit for defamation in which one candidate for North Carolina
political office ran a television advertisement against their
opponent, which that opponent contends was defamatory and made with
actual malice; (2) litigation over a political ad that had already
been run in an election, but which does not involve an injunction
preventing the defendant from running the ad in an upcoming
election; and (3) implications concerning the First Amendment right
of free speech. Most importantly, both cases came to this Court in
the same procedural posture. The appeal in Boyce II stemmed from
the denial of a 12(c) motion for judgment on the pleadings, and
this case arose from a denial of a 12(b)(6) motion for failure to
state a claim upon which relief can be granted. A Rule 12(b)(6)
motion for failure to state a claim is more akin to a 12(c) motion
for judgment on the pleadings than a motion for summary judgment.
See Boyce II, ___ N.C. App. at ___, ___ S.E.2d at ___. This is so
because “at the time of filing typically no discovery has occurred,
no evidence or affidavits are submitted, and a ruling is based on
the [complaint], along with any properly submitted exhibits.” Id.
Thus, “[a]ny defenses or arguments that plaintiff[] cannot actually
prove [her] allegations in the complaint due to lack of evidence
regarding malice will not be immediately lost if this case
proceeds.” Id. at ___, ___ S.E.2d at ___. Further, the same reasons the panel in Boyce II gave for
finding Priest inapplicable apply equally to this case. Defendants
rely solely upon Priest for their assertion that their
constitutional defenses will be lost due to the trial court's
denial of their 12(b)(6) motion, thus requiring an immediate
appeal. Accord id. We are bound by the holding of the prior
panel of this Court in Boyce II, and conclude defendants' appeal
from the denial of their 12(b)(6) motion does not affect a
substantial right which will be lost absent immediate appellate
review. Since defendants' appeal is interlocutory and is not
properly before this Court, it must be dismissed.
DISMISSED.
Judges MCGEE AND BRYANT concur.
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