An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-16


Filed: 1 March 2005


    v .                                 Orange County
                                        No. 02 CVS 622< br> THE UNIVERSITY OF NORTH
Ph.D., SAMUEL WEIR, M.D., and

    Appeal by plaintiff from order entered 3 September 2003 by Judge Ronald L. Stephens in Orange County Superior Court. Heard in the Court of Appeals 22 September 2004.

    Brenner & Brenner, P.A., by Lawrence H. Brenner; and Essex, Richards, P.A., by James C. Fuller, for plaintiff appellant.

    Carruthers & Bailey, P.A., by Joseph T. Carruthers, for defendant appellees.

    McCULLOUGH, Judge.

    Plaintiff Christopher Patrick Ryan, M.D. appeals the trial court's order which granted summary judgment for defendants. This case is before us for the second time. Some of the facts which give rise to this dispute can be found in our first opinion. See Ryan v. U.N.C. Hospitals [Ryan I], 128 N.C. App. 300, 494 S.E.2d 789, disc. review improvidently allowed, 349 N.C. 349, 507 S.E.2d39 (1998). However, a brief summary of the pertinent facts is necessary to provide context for the issues now on appeal.
    The forecast of evidence tended to show that plaintiff graduated from medical school in 1990 and entered the North Carolina Family Medicine Residency Program. The relationship between plaintiff and UNC Hospitals was contractual, and each year, the parties executed a written agreement. During plaintiff's second year of residency, members of the faculty became concerned about his performance. Plaintiff was habitually late, slow in seeing patients, difficult to reach through the paging system, and resistant to feedback from others. The Chairman of the Family Medicine Department at UNC Hospitals, Dr. Kenneth Reeb, convened a review board for the purpose of evaluating plaintiff's performance as a resident. At that time, plaintiff declined to exercise his right to appoint a faculty member of his choice to the board.
    After considering plaintiff's performance, the review board determined that if plaintiff modified his behavior and improved his performance, he could continue in the program and be in good standing when he started his senior year. However, plaintiff committed an error of judgment when he failed to return on time from Christmas vacation. This resulted in plaintiff missing a scheduled workday during his pediatrics rotation at Wake Medical Center.
    Dr. Reeb organized another meeting to discuss plaintiff's future with the residency program. The committee recommendedunanimously that plaintiff's residency contract not be renewed for the next academic year; Dr. Reeb accepted that recommendation.
    On 6 March 1992, Dr. Reeb met with plaintiff and notified him that his contract would not be renewed for the coming year. Additionally, plaintiff received a letter confirming this decision a few days later. Plaintiff disputed this decision through the University's internal appeals procedure.
    At that time, plaintiff retained an attorney who executed a contract with UNC Hospitals. Pursuant to that contract, plaintiff agreed to the following pertinent provisions:
            1. Dr. Ryan is admitted to the Family Medicine residency on a probationary status, the term of which shall be determined by a group of three Attending faculty members: Dr. Warren Newton, Dr. Peter Curtis and Dr. Sam Weir, but which shall not exceed six (6) months.

            2.     Dr. Ryan's residency training may be, but does not have to be, extended by six (6) months, the period of time he is on probation and receiving remedial training, or may be extended by some shorter period of time, as determined by Drs. Newton, Curtis and Weir.

    Additionally, plaintiff agreed that Drs. Newton, Curtis, and Weir would monitor his performance. Furthermore, there was no guarantee that plaintiff would successfully complete his residency requirements because that decision remained with the residency program faculty.
    Before the start of the probation period, plaintiff's classmates expressed their concerns about his behavior. During the time plaintiff was on probation, he continued to engage ininappropriate behavior. Dr. Newton determined that plaintiff could graduate on 30 September 1993.
    Plaintiff filed suit in 1994 asserting a number of causes of action. In our first decision, this Court affirmed dismissal of all of plaintiff's claims except for plaintiff's claim of breach of contract. Ryan I, 128 N.C. App. at 302-03, 494 S.E.2d at 791. In reversing the dismissal of that claim, we noted that “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id.
Plaintiff filed suit again, and the trial court eventually held a hearing on 14 July 2003. After considering the materials in the file and hearing arguments of the parties, the trial judge granted defendants' motion for summary judgment on all issues. Plaintiff appeals.
    On appeal, plaintiff argues that the trial court erred by granting defendants' motion for summary judgment because there were genuine issues of material fact regarding (1) whether the hospital breached its contract with plaintiff by failing to provide a gynecology rotation, (2) whether defendants induced UNC Hospitals to fail to renew Dr. Ryan's contract for his final year, (3) whether defendants breached a fiduciary duty to plaintiff, and (4) whether defendants defamed plaintiff. We disagree and affirm the decision of the trial court.

I. Breach of Contract
    Plaintiff argues that the trial court should not have granted defendants' motion for summary judgment because there was a genuineissue of material fact regarding whether defendants breached their contract in failing to provide a gynecology rotation. We disagree.     The standard of review is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 393-94, 499 S.E.2d 772, 775 (1998).
    In this case, it is undisputed that plaintiff graduated from an accredited residency program. Plaintiff accepted his diploma and never asked to stay in the residency program longer to obtain further training in gynecology; to the contrary, plaintiff asked to finish as soon as possible. For their part, defendants helped plaintiff get through the process in spite of some difficulties along the way. Under these circumstances, both sides have performed their duties under the contract. Since there is no triable issue left for the jury to decide, defendants were entitled to judgment on this issue as a matter of law. This assignment of error is overruled.
II. Tortious Interference With a Contractual Relationship
    Plaintiff contends that there was a genuine issue of material fact regarding whether defendants tortiously interfered with the contract. The elements of this claim are:
        (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) defendant knows of the contract; (3) the defendant intentionally induces thethird person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to the plaintiff.

Embree Construction Group v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992).
    Plaintiff contends that he has made a viable claim because defendants, Dr. Reeb and Dr. Newton, induced UNC Hospitals to fail to renew Dr. Ryan's contract for his final year.         This argument is unpersuasive. Although UNC Hospitals initially decided not to renew plaintiff's contract for the third year, UNC Hospitals honored the existing contract for the second academic year. Furthermore, the parties did execute a contract for the third academic year, and both sides performed their duties under the contract. Therefore, we cannot conclude that there was any tortious interference with a contractual relationship.   (See footnote 1)  We overrule this assignment of error.
III. Breach of Fiduciary Duty
    Plaintiff claims that there is a genuine issue of material fact as to whether defendants breached a fiduciary duty to him. In North Carolina, the term “fiduciary relationship” is not clearly defined. However, our Supreme Court has explained that a fiduciary relationship        exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.

Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931).
    The determination of whether a fiduciary relationship exists often depends on the circumstances of each case. Hajmm Co. v. House of Raeford Farms, 328 N.C. 578, 588, 403 S.E.2d 483, 489 (1991). Therefore, our courts have stated that the existence of a fiduciary relationship is often a question of fact for the jury. Stamm v. Salomon, 144 N.C. App. 672, 680, 551 S.E.2d 152, 158 (2001), disc. review denied, appeal dismissed, 355 N.C. 216, 560 S.E.2d 139 (2002).
    On the other hand, there have been cases in which the determination of a fiduciary relationship was not sent to the jury. In Dalton v. Camp, 353 N.C. 647, 652, 548 S.E.2d 704, 708 (2001), our Supreme Court held that a fiduciary relationship is generally not found in the workplace. Thus, the trial court properly granted summary judgment for defendant. Id. Similarly, this Court rejected the notion that the jury was to decide the issue of whether there was a fiduciary relationship between mutually interdependent businesses. Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C. App. 663, 665, 391 S.E.2d 831, 832 (1990). Since there were no North Carolina cases which found a fiduciary relationship in these circumstances, this Court refused to extend the concept there. Id. at 666, 391 S.E.2d at 833.     “Courts have historically declined to offer a rigid definition of a fiduciary relationship in order to allow imposition of fiduciary duties where justified.Hajmm Co., 328 N.C. at 588, 403 S.E.2d at 489 (emphasis added). The issue is whether the imposition of a fiduciary duty would be justified in this case.
Plaintiff has not cited, and we are not aware of, a North Carolina case which determined that the interactions between educators/supervisors and medical residents created a fiduciary relationship. As was the case in Tin Originals, Inc., we are reluctant to extend the concept in the present case. Tin Originals, Inc., 98 N.C. App. at 666, 391 S.E.2d at 833.
    Although defendants were plaintiff's teachers and advisors, they also had to serve other interests. First, defendants had to serve the objectives of the institution by ensuring that its rules and regulations were followed. Second, defendants were required to protect the public by ensuring that only qualified doctors graduated from the program. Because defendants had divided loyalties, this case is unlike other fiduciary relationships in which the fiduciary must act primarily for the benefit of another. See 37 C.J.S. Fraud § 6 at 178 (1997) (noting that a fiduciary must act primarily for the benefit of another in matters connected with the undertaking).
    Other jurisdictions have been reluctant to find fiduciary relationships in academic settings. Although these decisions are not binding on this Court, we are guided by the analyses set forth therein.     For example, the South Carolina Supreme Court did not believe that the relationship between a student and an academic advisor at Clemson University was fiduciary in nature:
        Historically, this Court has reserved imposition of fiduciary duties to legal or business settings, often in which one person entrusts money to another, such as with lawyers, brokers, corporate directors, and corporate promoters. We decline to recognize the relationship between advisor and student as a fiduciary one.

Hendricks v. Clemson University, 353 S.C. 449, 459, 578 S.E.2d 711, 716 (2003). A court in Missouri reached a similar result. Shapiro v. Butterfield, 921 S.W.2d 649, 651 (Mo. App. E.D. 1996) (noting that plaintiff, a graduate student, failed to allege a fiduciary relationship, because she cited no cases finding a fiduciary relationship between a student and faculty advisor and the petition contained only bare allegations).
    Based on the law in North Carolina and the additional guidance from other jurisdictions, we decline to extend the concept of fiduciary relationships to the facts of the present case. Plaintiff has not persuaded this Court that a fiduciary relationship exists between educator/supervisors and medical residents.
    Even if we assume arguendo that a fiduciary relationship could exist between these parties, plaintiff has not presented any evidence showing that defendants breached this duty. In his brief, plaintiff asserts that Dr. Reeb breached a fiduciary duty by convening a review board while serving as his advisor. Similarly,plaintiff suggests that Dr. Newton should not have taken charge of his probation while serving as his advisor. These claims are not evidence that defendants breached a fiduciary duty. Instead, they underscore the fact that defendants responded to serious concerns about plaintiff's behavior. We conclude that defendants acted in good faith and for the mutual benefit of plaintiff, UNC Hospitals, and the public-at-large. Under these circumstances, there could not be a breach of fiduciary duty. This assignment of error is dismissed.
IV. Defamation
    Plaintiff's final argument is that there is a genuine issue of material fact with respect to whether defendants defamed plaintiff. This contention is without merit.
    At the outset, we note that in Ryan I, plaintiff asserted a number of causes of action which the lower court dismissed. Ryan I, 128 N.C. App. at 301, 494 S.E.2d at 790. One of those claims was for “self-defamation,” and defendants did not appeal the trial court's dismissal of that claim. Id.
    After Ryan I was filed, plaintiff tried to assert a claim for defamation in his 16 May 2002 complaint and later in an amended complaint. However, this claim was not based on the traditional elements of defamation, but was rooted in the notion of self- defamation, a claim that is not recognized in North Carolina and was previously dismissed in Ryan I. The allegations in the present case included:


            Plaintiff hereby realleges and reincorporates paragraphs 1 through 92 of this Complaint as if same were fully set forth therein.


            As a physician, Plaintiff sought employment and medical licensing to practice medicine and will seek to be credentialed and privileged at health care facilities.


            As a result of the wrongful activities of the Defendants, individually and collectively, whenever Plaintiff seeks licensure, employment, or to be credentialed and privileged, he will be forced to disclose the following, including but not limited to:

            (a)    That he had been terminated from his residency program;

                         (b)     That he was placed on probation;

                            (c)    That his residency training program was extended and that he was not allowed to graduate with his residency class;

                    (d)    That all of the above was the result of a determination that he was incompetent, lacked qualifications, suffered from a mental disorder, was immature and in other respects a “troubled” or “problem” physician.


95. [sic]

            That all the above were false but despite the lack of truth of these statements, Plaintiff will be compelled to relate them to third parties in such a way that it will substantially and negatively affect his professional career.
    Even if true, these allegations are not sufficient to state a claim for defamation.
    Plaintiff's brief also suggests, however, that there is additional evidence which creates a genuine issue of material fact. First, we must consider whether any statements could be considered slander per se.
“To establish a claim for slander per se, a plaintiff must prove: (1) defendant spoke base or defamatory words which tended to prejudice him in his reputation, office, trade, business or means of livelihood or hold him up to disgrace, ridicule or contempt; (2) the statement was false; and (3) the statement was published or communicated to and understood by a third person.”

Friel v. Angell Care Inc., 113 N.C. App. 505, 509, 440 S.E.2d 111, 113-14 (1994) (citation omitted).
    Plaintiff mentions three statements which he claims constitute slander per se. First, defendants described plaintiff's work as “unacceptable.” Second, defendants considered plaintiff to be a “problem resident.” And, finally, one of the defendants believed that plaintiff should be considered for drug testing.
    Plaintiff's argument is unpersuasive because there is no showing that these statements are untrue. The record was replete with concerns from doctors, patients, and fellow classmates about plaintiff's job performance. Because plaintiff has failed to establish one of the elements of the claim (falsity of the statement), the trial court acted appropriately in granting summary judgment for defendants.    Plaintiff's final contention is that Dr. Newton wrote a libelous letter which accused Dr. Ryan of errors of judgment which harmed patients. This argument is meritless. “A publication of a libel, procured or invited by the plaintiff, is not sufficient to support an action for defamation.” Pressley v. Can Company, 39 N.C. App. 467, 469, 250 S.E.2d 676, 678, disc. review denied, 297 N.C. 177, 254 S.E.2d 37, 37-38 (1979). Plaintiff invited the publication of this letter by participating in the residency program and subjecting himself to defendants' evaluation of his work. This assignment of error is overruled.   (See footnote 2) 
    After careful consideration, we conclude that there was no genuine issue of material fact and that defendants were entitled to summary judgment on all issues as a matter of law. The decision of the trial court is
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    To the extent that plaintiff characterizes the lengthening of his third year as a “tortious interference,” we note that plaintiff voluntarily entered into the agreement which led to this result. The parties' contract stated unambiguously that plaintiff's training could be extended by up to six months.
Footnote: 2
    We believe that plaintiff's argument is unconvincing for another reason. Dr. Warren Newton drafted the letter at issue after four separate incidents that occurred between March and April of 1993. All of these incidents involve plaintiff, and they are verified in the record. Plaintiff has presented no evidence showing that the statement was untrue. In fact, Dr. Newton's letter indicates that plaintiff declined the opportunity to meet with the committee to discuss these incidents. If plaintiff did not make errors of judgment, we cannot understand why he would not meet with the committee.

*** Converted from WordPerfect ***