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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.
MERVYN D. LOSING, Plaintiff, v. FOOD LION, L.L.C., a/k/a FOOD
LION and ROBERT JONES, Defendant
Filed: 7 August 2007
1. Libel and Slander--slander per se--affirmative defense of truth
The trial court did not err in a defamation case stemming from plaintiff's drug test on 11
December 2001 by entering summary judgment in favor of defendant on the claim of slander per
se, because defendant definitively proved the affirmative defense of truth to slander per se when:
(1) plaintiff did, under the terms of defendant employer's substance abuse policy, fail a drug test;
(2) although the result was ultimately shown to have been a false positive, the fact remained that
a finding of a substitute sample constituted a failed test under the employer's policy, and
plaintiff's result was of a substituted sample; (3) the statement to another employee that
plaintiff's attorney can get you off a drug test was not slanderous when such an assertion does not
rise to the level of alleging conduct derogatory to plaintiff's character and standing as a business
man, nor does it tend to prejudice him in his business; (4) alleged false statements made by
defendants calling plaintiff dishonest or charging that plaintiff was untruthful and an unreliable
employee are not actionable per se; and (5) the statements were all true even if plaintiff
subsequently showed that they were based on a false underlying premise.
2. Privacy--invasion of privacy--expiration of statute of limitations
The trial court did not err in an invasion of privacy case stemming from plaintiff's drug
test on 11 December 2001 by entering summary judgment in favor of defendant on the claim of
invasion of privacy, because: (1) N.C.G.S. § 1A-1, Rule 41(a)'s tolling of the applicable statute
of limitations applies only to the claims in the original complaint and not to other causes of
action that may arise out of the same set of operative facts; (2) plaintiff first filed a complaint
against defendant in 2003 or 2004, but essentially conceded in his brief that his claim for
invasion of privacy was not made in that complaint; (3) the applicable statute of limitations was
three years under N.C.G.S. § 1-52(5); and (4) given that the statements objected to by plaintiff
were made in December 2001 and early to mid-January 2002, the claim filed on 28 January 2005
was barred by the statute of limitations.
Appeal by plaintiff from order and judgment entered 13 July
2006 by Judge Narley L. Cashwell in Superior Court, Wake County.
Heard in the Court of Appeals 24 April 2007.
Bruce Robinson, for plaintiff-appellant.
Constangy, Brooks & Smith, LLC, by Kenneth P. Carlson, Jr.,
A defendant is entitled to summary judgment when he has shown
that the plaintiff cannot overcome an affirmative defense.
(See footnote 1)
Because we find that the defendant here definitively proved the
affirmative defenses of truth, to slander per se; and expiration of
the statute of limitations, to invasion of privacy; we affirm the
trial court's grant of summary judgment.
On 28 January 2005, Plaintiff Mervyn D. Losing filed a
complaint against his employer, Food Lion, LLC, and his direct
supervisor, Food Lion district manager Robert Jones, alleging
defamation, negligent infliction of emotional distress, negligence,
and invasion of privacy, stemming from a drug test of Mr. Losing on
11 December 2001. According to Mr. Losing, he was selected by Food
Lion and Mr. Jones for a random drug test soon after returning to
work following an accident and injury suffered during the course
and scope of his employment. The drug test returned as
substituted, meaning that it was not consistent with human urine.
Under Food Lion's substance abuse policy, a substituted urine
sample was considered a positive screen. A confirmation test
conducted by the laboratory facility used by Food Lion likewise
found that the sample from Mr. Losing was not consistent with human
urine. In accordance with Food Lion's zero tolerance policy, Mr.
Jones then fired Mr. Losing from his position at Food Lion on 18December 2001. However, Mr. Losing exercised his right to a
retest, which returned negative. Food Lion ultimately admitted
that the initial result was a false positive and reinstated Mr.
Losing to his previous position with the same salary and back pay.
Following his return to Food Lion, Mr. Losing was written up
by Mr. Jones for failing to maintain his store in accordance with
Food Lion policy; he was subsequently suspended for one week in
March 2002. Mr. Losing contends that, since his reinstatement, he
has been continually harassed, assigned positions beneath his
level of competence, given employees to supervise that were
untrained, . . . all because Food Lion desires to have him either
resign or set him up in a position where he can be fired. Mr.
Losing also contends that Mr. Jones made statements concerning his
failed drug test to other Food Lion employees, including that he
tested positive, substituted non-human urine in the drug test, and
was fired for failing the drug test.
Following answers filed by Food Lion and Mr. Jones, Mr. Losing
voluntarily dismissed with prejudice his claim for negligent
infliction of emotional distress on 19 December 2005. On 29 June
2006, Food Lion filed an amended motion for summary judgment,
arguing that Mr. Losing had failed to establish a prima facie case
for defamation, negligence, or invasion of privacy, and that such
claims were also precluded by qualified privilege, an independent
intervening cause, and the statute of limitations, respectively,
among other affirmative defenses. Several affidavits, including
that of Mr. Jones, were submitted with Food Lion's motion forsummary judgment, as well as the interrogatories, requests for
admissions, and documents produced during discovery prior to the
filing of the motion. On 13 July 2006, the trial court granted
Food Lion's motion for summary judgment with prejudice, ordering
that Mr. Losing should recover nothing from Food Lion as to any of
his causes of action.
Preliminarily, we observe that summary judgment is properly
granted when the evidence, viewed in the light most favorable to
the non-moving party, shows no genuine issue of material fact.
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998) (citation omitted); see also N.C. Gen. Stat.
§ 1A-1, Rule 56(c) (2005). Additionally, a defendant may show he
is entitled to summary judgment by: (1) proving that an essential
element of the plaintiff's case is non-existent, or (2) showing
through discovery that the plaintiff cannot produce evidence to
support an essential element of his or her claim, or (3) showing
that the plaintiff cannot surmount an affirmative defense.
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 708, 582
S.E.2d 343, 345 (2003) (internal quotation and citation omitted),
aff'd per curiam, 358 N.C. 137, 591 S.E.2d 520, reh'g denied, 358
N.C. 381, 597 S.E.2d 129 (2004).
In his appeal, Mr. Losing argues that summary judgment was
improper because a genuine issue of material fact remains as to
each element of his claim against Food Lion for (I) slander per seand (II) invasion of privacy.
(See footnote 2)
 First, Mr. Losing argues that a genuine issue of material
fact remains as to each element of his claim for slander per se
against Food Lion, such that summary judgment was improper. We
Under North Carolina law, slander per se is an oral
communication to a third party which amounts to (1) an accusation
that the plaintiff committed a crime involving moral turpitude; (2)
an allegation that impeaches the plaintiff in his trade, business,
or profession; or (3) an imputation that the plaintiff has a
loathsome disease. Boyce & Isley, PLLC v. Cooper, 153 N.C. App.
25, 29-30, 568 S.E.2d 893, 898 (2002) (quotation and citation
omitted), disc. review denied, dismissed, 357 N.C. 163, 580 S.E.2d
361, cert. denied, 540 U.S. 965, 157 L. Ed. 2d 310 (2003). False
words imputing to a merchant or business man conduct derogatory to
his character and standing as a business man and tending to
prejudice him in his business are actionable, and words so uttered
may be actionable per se. Id. at 30, 568 S.E.2d at 898 (quotation
and citation omitted). Thus, an essential element of a slander perse claim based on defaming an individual's business reputation is
that the statements are false; truth is therefore an affirmative
defense to such a claim. Long v. Vertical Technologies, Inc., 113
N.C. App. 598, 602-03, 439 S.E.2d 797, 801 (1994) ([I]n order to
be actionable, the defamatory statement must be false. The truth
of a statement is a complete defense.).
In the instant case, Mr. Losing specifically alleged in his
complaint that Mr. Jones had made statements including, but not
a. That [Mr. Losing] had been fired for
substituting non human urine on a drug
b. That he had failed a drug test.
c. That he was failing to follow store
d. That he was fired over a drug test.
e. That, through Brian Sloan, you need to
get [Mr. Losing's] attorney, he can get
you off of a drug test.
In his deposition statements, Mr. Losing refers to the rumors . .
. around the whole store after he was fired, which he acknowledges
were recounted to him by others.
He admits that he never heard Mr. Jones tell anyone that his sample
showed non-human urine; rather, his evidence that Mr. Jones made
the slanderous statements is that if him [sic] and I are in the
room and I'm told I have non-human urine and I'm being fired for
it, there's only two people in that room. Just him and me [sic].
I told nobody.
In his brief to this Court, Mr. Losing states that, [t]he
simple question is whether or not [Mr.] Losing failed a drug test.
If [Mr.] Losing did fail a drug test, then truth would be adefense. Nevertheless, Mr. Losing asserts that the drug test was
not completed after the initial test and confirmation test
conducted by Food Lion. Rather, Mr. Losing contends that the drug
test was not completed until he exercised his right to the retest
and found that the original results had been false positives. We
find this argument to be without merit.
The evidence in this case is incontrovertible that Mr. Losing
did, under the terms of Food Lion's substance abuse policy, fail a
drug test. Although the result was ultimately shown to have been
a false positive, the fact remains that a finding of a
substituted sample constituted a failed test under Food Lion's
policy. Mr. Losing's result was of a substituted sample;
therefore, he failed the test. Under the express terms of Food
Lion's zero tolerance policy, Mr. Losing was then fired for failing
a drug test. These were all true statements, notwithstanding the
underlying falsity of the positive drug test.
Moreover, in the depositions submitted to the trial court for
consideration of Food Lion's motion for summary judgment, Mr.
Losing recounted that Mr. Jones told him, I'm going to have to
fire you for non-human urine that came back - non-human urine on a
drug test. I have to fire you because it's a positive drug test.
Likewise, Mr. Losing admitted in one of his depositions that he was
suspended for a week in March 2002 for failure to follow store
operating procedures. Even assuming arguendo that Food Lion has
respondeat superior liability for statements made about Mr. Losing
by Mr. Jones - and even acknowledging that such statements mighthave been uncalled-for, unfair, and perhaps cruel gossip - any
statements made by Mr. Jones regarding Mr. Losing's failing a drug
test due to non-human urine, being fired for such, and failing to
follow store procedures were still strictly true. As such, they
are not slanderous per se.
Nor is Mr. Losing's claim that Brian Sloan's alleged statement
to get [Mr. Losing's] attorney, he can get you off of a drug
test slanderous. Such an assertion does not rise to the level
of alleging conduct derogatory to [Mr. Losing's] character and
standing as a business man, nor does it tend to prejudice him
in his business. Boyce & Isley, 153 N.C. App. at 30, 568 S.E.2d
at 898. For that reason, we have held consistently that alleged
false statements made by defendants, calling plaintiff 'dishonest'
or charging that plaintiff was untruthful and an unreliable
employee, are not actionable per se. Tallent v. Blake, 57 N.C.
App. 249, 253, 291 S.E.2d 336, 339-40 (1982) (quotation and
In sum, the statements objected to by Mr. Losing do not rise
to the level of slander per se. Moreover, the statements were all
true, even if Mr. Losing subsequently showed that they were based
on a false underlying premise. As such, because Mr. Losing could
not overcome the affirmative defense of truth, we must uphold the
trial court's grant of summary judgment to Food Lion.
 Mr. Losing also argues that the trial court erred by
granting summary judgment because a genuine issue of material factremains as to his claim for invasion of privacy against Food Lion.
Under North Carolina law, a plaintiff may refile within one
year a lawsuit that was previously voluntarily dismissed, and the
refiled case will relate back to the original filing for purposes
of tolling the statute of limitations.
N.C. Gen. Stat. § 1A-1,
Rule 41(a)(1) (2005); see Brisson v. Kathy A. Santoriello, M.D.,
351 N.C. 589, 594, 528 S.E.2d 568, 571 (2000) ([U]nder Rule
41, a plaintiff may dismiss an action that originally was filed
within the statute of limitations and then refile the action after
the statute of limitations ordinarily would have expired.
(quotation and citation omitted)).
However, the relate back doctrine applies only to a new
action based on the same claim
. . . commenced within one year[.]
N.C. Gen. Stat. § 1A-1, Rule 41(a)(1).
This Court has long held
that the Rule 41(a) tolling of the applicable statute of
limitations applies only to the claims in the original complaint,
and not to other causes of action that may arise out of the same
set of operative facts. See Stanford v. Owens
, 76 N.C. App. 284,
289, 332 S.E.2d 730, 733 (Plaintiffs' contention that the fraud
claim has in effect been before the court all along, since it rests
upon somewhat the same allegations that were made in support of the
negligent misrepresentation claim when the action was first filed,
though appealing to some extent is nevertheless unavailing.),
disc. review denied
, 314 N.C. 670, 336 S.E.2d 402 (1985).
In the instant case, Mr. Losing first filed a complaintagainst Food Lion in 2003 or 2004,
(See footnote 3)
but he essentially concedes in
his brief that his claim for invasion of privacy was not made in
that complaint. After voluntarily dismissing that complaint
without prejudice, Mr. Losing refiled his complaint against Food
Lion on 28 January 2005, including a new claim for invasion of
privacy. The applicable statute of limitations for the tort of
invasion of privacy is three years. See
N.C. Gen. Stat. § 1-52(5)
(2005) (specifying a three-year statute of limitations for any
other injury to the person or rights of another, not arising on
contract and not hereafter enumerated.). Given that the
statements objected to by Mr. Losing were made in December 2001 and
early to mid-January 2002, we hold that his claim for invasion of
privacy is time-barred, and summary judgment was thus proper.
Judges TYSON and CALABRIA concur.
See Draughon v. Harnett Cty. Bd. of Educ.
, 158 N.C. App.
705, 708, 582 S.E.2d 343, 345 (2003) (holding that a defendant
may prove entitlement to summary judgment by showing that the
plaintiff cannot surmount an affirmative defense
quotation and citation omitted))
, aff'd per curiam
, 358 N.C. 137,
591 S.E.2d 520, reh'g denied
, 358 N.C. 381, 597 S.E.2d 129
Although Mr. Losing's sole assignment of error asserts
that a genuine issue of material fact remains as to each
contention and argument made . . . except for those causes of
action which were voluntarily withdrawn[,] Mr. Losing has made
no argument to this Court concerning his negligence claim against
Food Lion. Accordingly, we deem that argument abandoned and
dismiss that portion of his assignment of error that included his
negligence claim. See
N.C. R. App. P. 28(b)(6) (Assignments of
error not set out in the appellant's brief, or in support of
which no reason or argument is stated or authority cited, will be
taken as abandoned.).
This complaint, although referred to by both Mr. Losing
and Food Lion in their briefs, is not included in the record
before us. Indeed, although Mr. Losing argues that his invasion
of privacy claim should relate back to the filing of this
complaint for purposes of tolling the applicable statute of
limitations, nowhere does he provide an actual date on which the
initial lawsuit was filed. Our estimate is based on affidavits
in the record that were sworn during the course of the first
lawsuit, before it was voluntarily dismissed.
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