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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DR. GENE COUCH, JR., Plaintiff, v. DAVID E. BRADLEY, Defendant
Filed: 17 October 2006
1. Trials_specific findings_not made in the absence of specific request
A colloquy between counsel and the judge did not amount to a request for specific
findings, and the trial court did not err by not making those findings.
2. Libel and Slander_consent judgment_presumption of
communication_findings not requested
Defendant's contention that the court erred by granting a motion to enforce a
consent judgment in a libel case on nonexistent facts was without merit because defendant
did not request specific findings; it is presumed that the trial court found facts from the
evidence to support its conclusions. There was sufficient evidence to support the court's
conclusions in that defendant did not rebut the presumption of communication contained
in the express terms of the judgment.
Appeal by defendant from order entered 10 October 2005 by
Judge Charles P. Ginn in Jackson County Superior Court. Heard
in the Court of Appeals 20 September 2006.
Eric Ridenour, for plaintiff-appellee.
Karla M. Wood, for defendant-appellant.
David E. Bradley (defendant) appeals from order entered
enforcing and awarding damages for violation of a consent
judgment entered on 3 November 2004. We affirm.
During February 2000, Dr. Gene Couch, Jr. (plaintiff)
and defendant were employed by Southwestern Community College.
Plaintiff served as Vice President and defendant was an
Instructor in Health and Physical Education and BuildingConstruction. In February 2000, defendant resigned from his
position. After defendant resigned, he allegedly disseminated
two separate memoranda throughout campus which alleged
plaintiff had used cocaine and had engaged in an affair with
a former Southwestern Community College employee. On 20
September 2000, plaintiff sent defendant a cease and desist
letter. Defendant continued his libelous actions against
On 3 March 2004, plaintiff filed a complaint against
defendant for libel and sought an injunction. On 3 November
2004, plaintiff and defendant entered into a consent and
forbearance agreement (the consent judgment). The consent
1) Plaintiff agrees to take no collection
or other adverse action against Defendant,
including the judgment filed in Jackson or
Buncombe County unless this agreement is
triggered by any of the following:
a) Defendant shall cease and desist in any
and all libelous, slanderous, demeaning,
defaming, or otherwise derogatory
communications about the Plaintiff,
whether factual or not, written, verbal,
or otherwise communicated about the
Plaintiff for a period of 10 years from
the date of this agreement.
b) In the event that any above referenced
material or information is communicated,
disseminated or otherwise published about
Plaintiff within the next 10 years, there
shall be a rebuttable presumption that
such publication or communication was the
responsibility of the Defendant, unless
proven otherwise by Plaintiff or
Defendant, and Plaintiff is free to pursue
collection of the judgment in accordance
with the terms herein.
(Emphasis supplied). The consent judgment expressly provided
for payment of damages by defendant in the amount of
$15,000.00 and costs and attorney fees in the event of breach.
On 28 July and 2 August 2005, plaintiff applied for the
position of president at Mayland Community College and Haywood
Community College. One week later, Tiara Lance (Lance),
defendant's neighbor and employer, inquired of defendant about
plaintiff's complaint against defendant and the consent
judgment. Upon her request, defendant gave Lance a copy of
the consent judgment.
Lance wrote a letter to both Mayland Community College
and Haywood Community College that discussed the complaint
plaintiff had filed against defendant. Lance's letter stated,
[t]he [l]aw [s]uit was settled in agreement that [defendant]
shall not make any derogatory comments, as to the same
agreement [plaintiff] agreed to make no religious
discriminatory statements. The letter included a copy of the
On 17 August 2005, plaintiff filed a motion in the cause
to enforce the consent judgment. Plaintiff relied upon
Lance's letters and copies of the consent judgment Lance had
sent to both community colleges. On 6 October 2005, the trial
court heard plaintiff's motion and found:
The Defendant has failed to meet the
burden of proof to sufficiently rebut the
presumption that the Defendant [has not]
ceased and desisted from any and all
libelous, slanderous, demeaning, defaming,
or otherwise derogatory communicationabout the Plaintiff, whether factual or
not, written, verbal or otherwise
communicated about the Plaintiff, in
accordance with Paragraph 1(a) of that
Consent and Forbearance Agreement dated
November 3rd 2004 and attached to
Plaintiffs Motion as Exhibit 1.
The trial court entered judgment against defendant for
$15,000.00 and awarded plaintiff $631.25 for attorney fees.
Defendant argues the trial court erred by: (1) not
finding specific facts and (2) granting plaintiff's motion
based on non-existent facts.
III. Standard of Review
When this court reviews an order from the trial court,
sitting without a jury:
the court's findings of fact have the
force and effect of a verdict by a jury
and are conclusive on appeal if there is
evidence to support them, even though the
evidence might sustain findings to the
contrary. The trial judge acts as both
judge and jury and considers and weighs
all the competent evidence before him. If
different inferences may be drawn from the
evidence, he determines which inferences
shall be drawn and which shall be
Williams v. Pilot Life Ins. Co., 288 N.C. 338, 342, 218 S.E.2d
368, 371 (1975) (internal citations omitted).
IV. Request for Specific Findings of Fact
 Defendant argues the trial court erred by not finding
specific facts. We disagree. N.C. Gen. Stat. . 1A-1, Rule 52(a)(2) (2005) states, in
part: Findings of fact and conclusions of law are necessary
on decisions of any motion or order ex mero motu only when
requested by a party and as provided by Rule 41(b). This
Court has stated, absent a specific request made pursuant to
Rule 52(a)(2), a trial court is not required to either state
the reasons for its decision or make findings of fact showing
those reasons. Strickland v. Jacobs, 88 N.C. App. 397, 399,
363 S.E.2d 229, 230 (1988) (citing Edge v. Metropolitan Life
Ins. Co., 78 N.C. App. 624, 337 S.E.2d 672 (1985)). When
there is no suggestion in the record that defendant asked for
findings of fact or conclusions of law to be included in the
trial court's order, the court's failure to do so is not
reversible error. Granville Med. Ctr. v. Tipton, 160 N.C.
App. 484, 494, 586 S.E.2d 791, 798 (2003).
Defendant contends he requested specific findings of fact
during the following colloquy:
Defense counsel: Mr. Bradley is not
responsible for the Consent Forbearance
Agreement being sent to Mayland and
Haywood Community College. Ms. Lance is,
she said many times --
The Court: What about the communication
to Ms. Lance?
Defense counsel: Which communication?
The Court: The communication that would
give her the information that - - enough
to send this? Communication that this
gentleman was anti-Christian.
. . . .
The Court: . . . the slander has occurred
not in the publication of the letters, but
in the communication with [Lance][.]
Upon review of the transcript, including defense
counsel's above-referenced colloquy and the record, defendant
failed to request that the trial court enter specific findings
of fact. Under N.C. Gen. Stat. . 1A-1, Rule 52, the trial
court was not required to make any specific findings of fact
in its order allowing judgment in the absence of a motion or
request. This assignment of error is overruled.
V. Granting Plaintiff's Motion
 Defendant argues the trial court erred by granting
plaintiff's motion based on non-existent facts. We disagree.
This Court has stated, when the [trial court] is not
required to find facts and make conclusions of law and does
not do so, that the court on proper evidence found facts to
support its judgment. Sherwood v. Sherwood, 29 N.C. App. 112,
113-14, 223 S.E.2d 509, 510-11 (1976) (citing Williams v.
Bray, 273 N.C. 198, 159 S.E.2d 556 (1968)).
As defendant failed to request specific findings of fact,
his second assignment of error is without merit. Further, the
record contains sufficient evidence to support the trial
court's conclusions of law. Under the express terms of the
consent judgment, defendant failed to rebut the presumption
that he communicated with Lance about plaintiff and provided
her a copy of the consent judgment. This assignment of error
Defendant failed to request specific findings of fact
pursuant to N.C. Gen. Stat. . 1A-1, Rule 52(a)(2). In the
absence of a motion or request, the trial court properly
entered an order allowing judgment against defendant without
making specific findings of facts. Without a request for
specific findings of fact, it is presumed the trial court
found facts from the evidence to support its conclusions of
law and enter judgment thereon. Id. The trial court's order
Judges BRYANT and LEVINSON concur.
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