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NORTH CAROLINA COURT OF APPEALS
Filed: 5 May 2009
MERRITT, FLEBOTTE, WILSON,
WEBB & CARUSO, PLLC, A North
Carolina Limited Liability
v. Durham county
No. 07 CVS 3697
AARON C. HEMMINGS, KELLY A.
STEVENS, and HEMMINGS & STEVENS,
P.L.L.C., A North Carolina Limited
Third Party Plaintiffs,
PRE-PAID LEGAL SERVICES, INC.,
JAMES MERRITT, DANIEL R. FLEBOTTE,
JOSEPH M. WILSON, JOY RHYNE WEBB,
and HEATHER CARUSO,
Third Party Defendants.
Appeal by Defendants/Third Party Plaintiffs from judgment
entered 9 June 2008 by Judge Ronald L. Stephens in Durham County
Superior Court. Heard in the Court of Appeals 24 March 2009.
Glenn, Mills, Fisher & Mahoney, P.A., by William S. Mills, for
Plaintiff-Appellees/Third Party Defendant-Appellees.
Crawford & Crawford, LLP, by Robert O. Crawford, III, and
Heather J. Williams; and Hemmings & Stevens, P.L.L.C., by
Aaron C. Hemmings and Kelly A. Stevens, for Defendant-
Appellants/Third Party Plaintiff-Appellants.
Defendants/Third Party Plaintiffs (Aaron C. Hemmings, Kelly A.
Stevens, and Hemmings & Stevens, P.L.L.C.) (hereafter Defendants)appeal from an order denying their motion to compel discovery and
granting summary judgment in favor of Plaintiff-Appellees/Third
Party Defendant-Appellees (Merritt, Flebotte, Wilson, Webb &
Caruso, PLLC; Pre-Paid Legal Services, Inc., James Merritt, Daniel
R. Flebotte, Joseph M. Wilson, Joy Rhyne Webb, and Heather Caruso)
(hereafter Plaintiffs). We affirm.
The relevant facts may be summarized as follows: Defendants
Aaron Hemmings and Kelly Stevens are attorneys who are licensed to
practice law in North Carolina. They previously were associates at
the firm of Browne, Flebotte, Wilson & Webb, (Brown, Flebotte) the
predecessor of Plaintiff law firm Merritt, Flebotte, Wilson, Webb
& Caruso (Merritt, Flebotte). In September 2005 Hemmings and
Stevens left Brown, Flebotte to start their own law practice
(Hemmings & Stevens). Defendants kept some former clients after
they left Plaintiff law firm, and disputes arose among the parties
about division of attorney's fees and reimbursement of client costs
that had been advanced by Brown, Flebotte. These disagreements led
to litigation, which ended on 24 February 2006, when the parties
executed a settlement agreement that resolved the parties' claims
and counterclaims, addressed disbursement of fees and repayment of
costs, and provided that its terms would remain confidential and
that the parties would not intentionally or knowingly make any
false statements about each other or statement[s] which would be
considered defamatory, or injurious to the reputation of the other
parties. On 11 June 2007, Plaintiffs filed a new lawsuit against
Defendants, asserting that Defendants had failed to pay Plaintiffs
the money owed under the settlement agreement, and had improperly
disbursed attorney's fees to themselves. Plaintiffs sought an
accounting of the attorney's fees received in cases covered by the
settlement agreement, damages for breach of contract, and an
injunction requiring Defendants to retain in trust the fees and
costs for cases covered by the settlement agreement.
On 24 July 2007, Defendants filed an answer denying the
material allegations of Plaintiffs' complaint and asserting that
Plaintiffs' substantial and material breaches of the parties'
contract excused their non-performance and refusal to make payments
owed under the settlement agreement. With their answer, Defendants
also filed a counterclaim against Plaintiffs for breach of
contract, slander per se, and invasion of privacy or
misappropriation of likeness. Defendants alleged: (1) that after
Defendants left Plaintiff law firm, the Plaintiffs' website
continued to list Defendants as attorneys with the firm; (2) that
Plaintiffs had made a demand for repayment of fraudulent
expenses, and; (3) that Plaintiffs had made false and defamatory
statements about Defendants.
In addition, Defendants filed a third party complaint against
James Merritt, Daniel R. Flebotte, Joseph M. Wilson, Joy Rhyne
Webb, Heather Caruso, and Pre-Paid Legal Services, Inc. The third
party complaint made essentially the same assertions as the
counterclaim, and sought similar relief. Defendants laterdismissed their claims against Pre-Paid Legal Services, which is
not a party to this appeal. Defendants also moved for dismissal of
Plaintiffs' claims for insufficiency of service of process, failure
to state a claim for relief, previous dismissal of the same claims,
false and scandalous allegations, res judicata and collateral
estoppel; their motions to dismiss were denied by the trial court
on 11 September 2007.
On 26 September 2007 Plaintiffs filed a reply to Defendants'
counterclaim and an answer to Defendants' third party complaint.
Plaintiffs denied the material allegations, asserted defenses, and
moved for dismissal of Defendants' claims. On 28 March 2008
Defendants filed a motion to compel discovery, seeking an order
compelling Pre-Paid Legal Services to respond to Defendants'
interrogatories and requiring Defendant Joy Webb to answer
questions about the firing of an employee. On 16 May 2008
Plaintiffs filed a motion for summary judgment on all claims and
On 9 June 2008 the trial court entered an order granting
Plaintiffs' motions for summary judgment and denying Defendants'
motion to compel discovery. The order granted summary judgment in
favor of Plaintiffs, ordered Defendants to pay $256,834 for
attorney's fees and $17,642.76 for costs advanced, and dismissed
all of Defendants' counterclaims, defenses, and third party claims
against Plaintiffs. Defendants have appealed the denial of their
motion to compel discovery, the dismissal of their claims againstPlaintiffs, and the entry of summary judgment in favor of
Standard of Review
Summary judgment is properly granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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)(2007). The purpose of the rule is to avoid a formal trial
where only questions of law remain and where an unmistakable
weakness in a party's claim or defense exists. . . . '[A]n issue
is genuine if it is supported by substantial evidence,' which is
that amount of relevant evidence necessary to persuade a reasonable
mind to accept a conclusion. . . . '[A]n issue is material if the
facts alleged would constitute a legal defense, or would affect the
result of the action, or if its resolution would prevent the party
against whom it is resolved from prevailing in the action.'
Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d
118, 123-24 (2002) (quoting DeWitt v. Eveready Battery Co., 355
N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of
Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972))
The moving party bears the initial burden of coming forward
with a forecast of evidence tending to establish that no triable
issue of material fact exists. Briley v. Farabow, 348 N.C. 537,
543, 501 S.E.2d 649, 653 (1998) (citation omitted). The movantmay meet this burden by proving that an essential element of the
opposing party's claim is nonexistent, or by showing through
discovery that the opposing party cannot produce evidence to
support an essential element of his claim or cannot surmount an
affirmative defense which would bar the claim. Collingwood v.
G. E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427
(1989) (citation omitted). When a motion for summary judgment is
made and supported as provided in this rule, an adverse party may
not rest upon the mere allegations or denials of his pleading, but
his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue
for trial. N.C. Gen. Stat. § 1A-1, Rule 56(e) (2007).
When considering a motion for summary judgment, the trial
judge must view the presented evidence in a light most favorable to
the nonmoving party. Dalton v. Camp, 353 N.C. 647, 651, 548
S.E.2d 704, 707 (2001) (citations omitted). All inferences of
fact must be drawn against the movant and in favor of the
nonmovant. Roumillat v. Simplistic Enterprises, Inc., 331 N.C.
57, 63, 414 S.E.2d 339, 342 (1992) (citations omitted).
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Rule 56(e).
A verified complaint may be treated as an affidavit if it (1) is
made on personal knowledge, (2) sets forth such facts as would be
admissible in evidence, and (3) shows affirmatively that theaffiant is competent to testify to the matters stated therein.
Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972)
Our Supreme Court has stated that a mediated settlement
agreement constitutes a valid contract between the settling parties
which is 'governed by general principles of contract law.'
McClure Lumber Co. v. Helmsman Constr., Inc., 160 N.C. App. 190,
197, 585 S.E.2d 234, 238 (2003) (quoting Chappell v. Roth, 353 N.C.
690, 692, 548 S.E.2d 499, 500 (2001)). In resolving the issues
raised on appeal, we treat the settlement agreement as a contract.
Defendants argue first that the trial court erred by granting
summary judgment in favor of Plaintiffs on the parties' claims and
counterclaims for breach of contract. We disagree.
As discussed above, [t]he party moving for summary judgment
has the burden of showing that there is no triable issue of
material fact. Nicholson v. American Safety Utility Corp
N.C. 767, 774, 488 S.E.2d 240, 244 (1997) (citations omitted). If
the movant demonstrates the absence of a genuine issue of material
fact, the burden shifts to the nonmovant to present specific facts
which establish the presence of a genuine factual dispute for
trial. In re Will of Jones
, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (citation omitted).
In the instant case, Defendants do not dispute that they have
failed to pay the full amount of attorney's fees due to Plaintiffs
under the terms of the contract. Defendants assert that theirnonperformance is excused by Plaintiffs' substantial and material
breaches of the contract. Defendants contend that they presented
evidence of three breaches of the contract. With respect to each
of these we conclude that (1) Plaintiffs supported their summary
judgment motion with evidence showing that Defendants could not
prove that there had been a breach of contract, and; (2) Defendants
failed to produce evidence showing any issue of material fact.
Preliminarily, we address the scope of our review. In their
answer and counterclaim to Plaintiffs' complaint, Defendants
asserted that Plaintiffs had materially and substantially breached
the parties' settlement agreement by breaching the contract's non-
disparagement clause and by making a fraudulent demand for expense
payments. At the summary judgment hearing, Defendants relied on
the same allegations. On appeal Defendants again argue that
Plaintiffs breached the contract by violating the non-disparagement
clause and by demanding expenses that were not actually covered
under the contract. We will address Defendants' arguments on these
issues, which were asserted in Defendants' complaint and argued to
the trial court.
However, on appeal Defendants also argue that Plaintiffs
violated the parties' contract by failing to timely accept or
reject payments under the contract and by failing to act in good
faith under the contract. These alleged breaches of contract were
neither asserted in Defendants' pleadings nor argued before the
trial court. The Supreme Court has long held that issues and
theories of a case not raised below will not be considered onappeal[.] Westminster Homes, Inc. v. Town of Cary Zoning Bd. of
., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) (citation
omitted). See also
N.C.R. App. P. 10(b)(1) (to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
. . . [and] obtain[ed] a ruling upon the party's request, objection
or motion). Accordingly, we do not consider these arguments.
Defendants contend that the evidence raised genuine issues of
material fact about whether the Plaintiffs violated a non-
disparagement clause in the settlement agreement. This clause
states that the parties agree that they will not intentionally or
knowingly make any false statements about each other or
statement[s] which would be considered defamatory, or injurious to
the reputation of the other parties. Accordingly, the clause does
not apply to every disparaging remark, but only to statements of
, and only if the party intentionally (1) makes a false
statement about another party, or (2) makes a statement about
another party that is defamatory or injurious to the party's
reputation. 'Presumably the words which the parties select [for
inclusion in a contract are] deliberately chosen and are to be
given their ordinary significance.' Wise v. Harrington Grove
, 357 N.C. 396, 405, 584 S.E.2d 731, 738 (2003) (quoting
Briggs v. American & Efird Mills, Inc
., 251 N.C. 642, 644, 111
S.E.2d 841, 843 (1960)). Defendants assert that Brad Rhyne, the office administrator
for Plaintiff law firm, violated the clause in a conversation with
Adrienne Lopez, a social acquaintance of his. Lopez's deposition
testimony may be summarized in pertinent part as follows: Lopez
previously dated Aaron Hemmings. She knew Rhyne as a casual social
acquaintance whom she sometimes saw at a bar or restaurant. Lopez
recalled a conversation with Rhyne that took place at a Raleigh
bar, White Collar Crimes, between 9:00 p.m. and midnight on a
night in February or March of 2006. Lopez had gone to the bar with
friends. When she noticed that Rhyne was there, she approached him
and they talked for about ten minutes. During the conversation,
Rhyne commented that Aaron had changed and was untrustworthy
and made another remark about which Lopez recalled only that it
suggested that Aaron did something wrong or committed some sort
of crime when he left the firm.
Defendants assert that Plaintiffs are liable for Rhyne's late
night comments at the White Collar Crimes bar, on the grounds that
Rhyne was acting as an agent of Plaintiffs' law firm. However, it
is axiomatic that a principal is not liable when the agent is
about his own business, or is acting beyond the scope and range of
his employment. This is true irrespective of the intent of the
agent. Snow v. Equitable distribution Butts
, 212 N.C. 120, 123,
193 S.E. 224, 227 (1937).
In support of their summary judgment motion, Plaintiffs
submitted the affidavits of James Merritt and Joy Rhyne Webb, whoare members of Plaintiff law firm. Regarding Rhyne's employment
and the scope of his authority, each averred that:
Brad Rhyne is an employee of the Merritt
Flebotte [law firm.] He is the firm's office
administrator. . . . He is not authorized to
speak on behalf of the law firm of Merritt
Flebotte except to employees in his role as
human resource manager and to vendors of
supplies and services to the firm. Other than
those situations he has no authority to speak
on behalf of the firm. Nor does he have the
authority to sign checks for the firm or incur
financial obligations. . . . [T]o the extent
that Brad Rhyne spoke with Ms. Lopez about
Aaron Hemmings at a bar in Raleigh during
evening hours, it was not within the course
and scope of his employment to have such a
At this point, in our opinion, movant's evidence that [Rhyne]
was not acting as the agent of the [Plaintiff law firm] within the
scope of his authority at the times complained of carried the
burden placed upon it by Rule 56(c) by showing the absence of one
of the essential elements of [Defendants'] claim. Zimmerman v.
Hogg & Allen
, 286 N.C. 24, 27-28, 209 S.E.2d 795, 803 (1974).
Defendants offer no evidence suggesting that Plaintiffs'
description of Rhyne's job was inaccurate; nor do they contend that
his conversation with Lopez might fall within his job description.
Rather, Defendants assert that Rhyne was the plaintiff's office
administrator. As such, he was an agent of [Plaintiff law firm].
As their agent he was bound by the contractual non-disparagement
clause whether he was sitting in his office or socializing at a
bar. Defendants note that Rhyne had actual knowledge of the terms
of the settlement agreement and was the brother of an attorney in
Plaintiff law firm, but articulate no legal connection betweenthese facts and the legal relationship of principal and agent.
Defendants offered no evidence that the scope of Rhyne's employment
included barroom gossip about members of the firm, and cite no
appellate opinions suggesting that an employee is considered an
agent of his employer even when he acts far outside the scope of
We conclude that Defendants failed to produce any evidence
raising an issue of fact as to whether Rhyne acted as Plaintiffs'
agent during his conversation with Lopez.
Next, we consider Defendants' contention that Rhyne breached
the contract by sending an email to members of Plaintiff law firm,
in which he complained about Defendants' failure to reimburse
Plaintiffs for some of the costs that had been advanced. The email
was addressed to Partners and was received by three members of
the firm; Joy Webb, Dan Flebotte, and Joey Wilson. It stated:
Dan, Please find the attached advanced costs
reports for Kelly and Aaron. These reports
show that on several cases such as [redacted]
that they paid us $261.05 for reimbursement
for advance costs when in fact they owed us
$476.25. They need to go back and pay us for
all the cases that they neglected to even pay
a dime in advanced costs (to date they have
only paid advanced costs in three out of
Even more frustrating, as I was talking to
Jennie Phillips, I found out that Stephanie
Minor and Tiffany Doster had been emailing
Jennie to get the advanced costs of cases they
settled. Even worse than that . . . several
were cases that they have paid us for attorney
fees already but have neglected to pay
advanced costs . . . so they knew what the
advanced costs were and just didn't pay it.
Please don't forget that we need the trustledgers for the cases that they have already
paid us for and for the ones that they send us
checks [for] in the future. If we could
simply get the trust ledger, then we can see
the disbursements that were made and verify
the amount that we received. It's that
The settlement agreement provides that the terms of the
contract are to remain confidential, but that the parties shall be
allowed to discuss such provisions of this Agreement as is deemed
necessary with those members, employees and financial/legal
advisors on a need to know basis. As conceded by Defendants
Stevens and Hemmings in their respective depositions, this clause
permits in-house communication about the terms of the agreement.
In support of their summary judgment motion, Plaintiffs
tendered a copy of the email showing that it was sent only to
members of the firm, and the deposition of Rhyne, in which he
testified that he sent the email only to the recipients shown on
the copy of the email. Plaintiffs' evidence, which shows that the
email was not a breach of the parties' agreement, made incumbent
upon Defendants to respond with evidence raising an issue of fact
about the email.
When Dan Flebotte, a member of Plaintiff law firm, received
the email, he sent a copy to Defendants as part of their ongoing
attempts to resolve issues arising from the settlement agreement.
The email copy that Hemmings received did not include the names of
the original recipients. On this basis, Defendants speculate that
perhaps the email had been sent to others outside the firm.
However, Defendants failed to produce any evidence that this hadoccurred, and offered no evidence to contradict Plaintiffs' sworn
testimony that the email was only sent to members of the firm.
We conclude that the uncontradicted evidence was that this
email was from an employee of Plaintiff law firm to members of the
firm. Such communications are permitted under the settlement
agreement. Defendants failed to demonstrate any genuine issue of
material fact about this email. Accordingly, Plaintiffs were
entitled to entry of summary judgment on this issue.
Defendants also argue that Plaintiffs breached contract by
making a fraudulent demand for payment of expenses. This
argument is without merit.
The settlement agreement required Defendants to reimburse
Plaintiffs for costs advanced in certain cases. It provided that
Defendants would submit a check for the dollar amount that they
determined was owed, and if Plaintiffs deposited or cashed the
check, they were deemed to have accepted Defendants' proposed
amount of expenses. Defendants concede that Plaintiffs had no
obligation under the settlement agreement to provide accounting
information to Defendants, calculate costs, or otherwise assist
Defendants in determining the amount of costs owed. Plaintiffs'
role was simply to accept or reject the proffered amount.
Nonetheless, Defendants asked Plaintiffs for information about
expenses. In response, Plaintiffs used QuickBooks. software to
generate a list of all checks written for the cases at issue and
sent the resulting document to Defendants in a loose-leaf binder. It is this ledger which Defendants characterize as a fraudulent
demand for money.
Defendants concede that the ledger does not include a demand
for payment, that it was not accompanied by a letter demanding
payment, and that Plaintiffs never expressed a demand for payment
of the costs set out in the notebook. Thus, it is undisputed that
Plaintiffs sent this listing unaccompanied by a letter, invoice, or
any demand or request to be paid any particular amount.
We conclude that the evidence offered on summary judgment did
not raise a genuine issue of material fact on Plaintiffs' alleged
breaches of the settlement agreement. We specifically conclude
that Defendants failed to produce evidence that (1) Rhyne's alleged
remarks to Lopez were a breach of the settlement agreement; (2)
Rhyne's email to members of the firm was a breach of the settlement
agreement, or that; (3) the ledger records compiled by Plaintiffs
constituted a demand or a fraudulent demand for money. As we
have concluded that Defendants failed to present evidence that
Plaintiffs had breached the settlement agreement, we do not reach
the issues of whether the alleged breaches were material and
substantial; or whether a material and substantial breach, if one
had been shown, would have entitled Defendants to suspend payments
due under the settlement agreement.
We conclude that the trial court did not err by entering
summary judgment in favor of Plaintiffs on Defendants' assertions
and defenses predicated on Plaintiffs' alleged breaches of the
Defendants brought counterclaims against Plaintiffs for
slander per se, breach of contract, and for invasion of privacy and
misappropriation of likeness. Defendants argue on appeal that the
trial court erred by entering summary judgment for Plaintiffs on
these claims. We disagree.
We conclude that Defendants' counterclaim against Plaintiffs
for slander per se was barred by the statute of limitations.
Under N.C. Gen. Stat. § 1-54(3) (2007), the statute of
limitations for a claim of slander or libel is one year. On
appeal, Defendants assert that sometime in February-March 2006,
Brad Rhyne . . . made derogatory statements in public to Adrianne
Lopez, an acquaintance of Aaron Hemmings. In her deposition,
Lopez testified that the allegedly slanderous remarks were part of
a conversation with Rhyne in February or March of 2006.
Defendants' counterclaim was not filed until 24 July 2007, which is
several months after 31 March 2007.
Defendants argue that the cause of action did not accrue until
Hemmings discovered the slanderous remarks. This argument has
been rejected by our appellate courts. 'To escape the bar of the
statute of limitations, an action for libel or slander must be
commenced within one year from the time the action accrues, G.S.
1-54(3), and the action accrues at the date of the publication of
the defamatory words, regardless of the fact that plaintiff may
discover the identity of the author only at a later date.' Gibson
v. Mutual Life Ins. Co. of N.Y., 121 N.C. App. 284, 287, 465 S.E.2d56, 58 (1996) (quoting Price v. Penney Co., 26 N.C. App. 249, 252,
216 S.E.2d 154, 156 (1975)).
Moreover, Defendants did not argue to the trial court that the
statute of limitations should be tolled until Defendants learned of
Rhyne's statements, and cannot raise this issue for the first time
on appeal. N.C. R. App. P. 10(b)(1). We conclude that Defendants'
claim for slander per se was barred by the statute of limitations.
Therefore we do not reach the issue of whether Rhyne's remarks
constituted slander per se.
Defendants next argue that the trial court erred by entering
summary judgment, on the grounds that there were genuine issues of
material fact as to Defendants' counterclaim/third party claim for
invasion of privacy and misappropriation of the Defendants' names
and likenesses. We disagree.
It is well known that the concept of a right of privacy
recognizable in law appears to have originated in a law review
article by Louis D. Brandeis, later a Justice of the Supreme Court
of the United States, and his law partner, Samuel D. Warren.
Warren & Brandeis, The Right to Privacy
, 4 Harv. L. Rev. 193
(1890). Hall v. Post
, 323 N.C. 259, 262, 372 S.E.2d 711, 713
(1988). The Supreme Court of North Carolina has recognized that
'an invasion of privacy by the appropriation of a plaintiff's
photographic likeness for the defendant's advantage as a part of an
advertisement constitutes a tort giving rise to a claim for relief
recognizable at law.' Renwick v. News and Observer and Renwick v.Greensboro News
, 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984)
(citing Flake v. Greensboro News Co
., 212 N.C. 780, 195 S.E. 55
Plaintiff law firm, Merritt Flebotte, maintains a website that
displays information about the firm, including information about
its attorneys. While Hemmings and Stevens worked at the firm, the
website had links to brief biographical sketches of each.
Defendants contend that Plaintiffs continued to display Defendants'
photographs and biographical information on the Merritt Flebotte
website after Defendants left the firm. On this basis, Defendants
assert that Plaintiffs invaded their privacy by misappropriating
their images and professional reputation. However, Plaintiffs
supported their motion for summary judgment with uncontradicted
[a]fter Hemmings and Stevens left the firm,
Rhyne contacted the firm's technical support
service, and asked them to delete Stevens and
Hemmings from the firm's website.
On 13 September 2005 the technical support
staff deleted Defendants' names and
biographical information from the website, and
removed all links on Plaintiffs' website that
connected to information about Defendants.
After Defendants were deleted from the firm's
website, it was no longer possible to navigate
from the firm's homepage to pages about the
Defendants. A visitor to the firm's website
would not see Defendants names among the
attorneys and none of the links on the website
led to information or pages about Defendants.
In her 3 April 2006 email to Defendant Joy Webb, Stevens
stated I understand you took our names off the actual web page[.]
In her deposition testimony, Stevens conceded that it was notpossible to access any web links or information about her or
Hemmings after they were deleted from the website, and that she had
no evidence to contradict Plaintiffs' evidence that this was done
on 13 September 2005. When Hemmings was deposed, he also admitted
that there was no way to navigate from Plaintiffs' website to any
information about him or Stevens. Plaintiffs also offered
testimony showing that when Hemmings and Stevens quit the firm,
Plaintiffs wanted to remove all references to Defendants from
Plaintiffs' website and took action to accomplish this removal, and
that after Defendants left the firm, Plaintiffs did not use
information about Defendants for any purpose.
Thus, Plaintiffs' uncontradicted evidence established that:
(1) shortly after Defendants left the law firm, Plaintiffs directed
their technical support service to delete Defendants from the
Plaintiffs' website; (2) on 13 September 2005 the technical service
deleted Defendants' names and informational pages from Plaintiffs'
website; (3) after Defendants were deleted from the website, there
was no information about Defendants on the website, and no way to
navigate from Plaintiffs' website to information about Hemmings or
Stevens, and; (4) after Defendants left Plaintiffs' law firm,
Plaintiffs made no use of information about Defendants. This
evidence, which showed that Defendants could not prove that
Plaintiffs had misappropriated or used Defendants' photographs or
biographical information after Defendants quit Plaintiffs' law
firm, met Plaintiffs' initial burden of proving that an essential
element of the opposing party's claim is nonexistent, or . . . thatthe opposing party cannot produce evidence to support an essential
element of his claim[.] Collingwood
, 324 N.C. at 66, 376 S.E.2d
at 427 (citations omitted). This shifted the burden to Defendants
to produce evidence showing a genuine issue of material fact
regarding their counterclaim.
Defendants did not produce evidence contradicting Plaintiffs'
evidence that, when Plaintiffs instructed the technical support
service to delete Defendants from the website, the consultant
removed links referring to Defendants from the website. The files
for these documents were stored as html code files on another
computer, called a server. Plaintiffs did not own the server, and
no evidence was presented to suggest that Plaintiffs intended to
preserve a copy of the deleted files. But, because the actual html
code was not removed from the server, it was theoretically possible
to use Google or another search engine to retrieve and view the
deleted pages. Defendants offered no evidence that any member of
the public had accessed these files.
Defendants did not allege that Plaintiffs were negligent, but
instead brought a claim for the intentional tort of invasion of
privacy. Assuming, arguendo
, that after Plaintiffs removed all
information and links pertaining to Defendants from Plaintiffs'
website, an internet search engine might return links to some of
the deleted biographical pages, Defendants fail to articulate how
this would constitute misappropriation of their image or
biographies for any commercial purpose:
[a]ccording to [Defendant] he was able to
access [documents deleted from Plaintiffs'website] by entering the extended URL address
. . . [Defendant] claims he was also able to
access the [documents] through various website
searches conducted through Google. . . .
[Defendant] was able to unearth what is for
all practical purposes a cyberspace
artifact[.] . . . Indeed, it is undisputed
that after the [13 September file deletions]
the link[s] on [Plaintiffs'] website to
[Defendants] . . . [were] deleted[.] . . .
Beyond saying that his Google searches took
him to [a] link that took him to [a copy of
the deleted files,] . . . [Defendant] explains
nothing that would constitute clear and
convincing evidence of contumacy by
Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc.
U.S. Dist. LEXIS 29082 (N.D. Ill. May 10, 2006) , aff'd
745, 2006 U.S. App. LEXIS 30271 (7th Cir. Ill. 2006). We conclude
that Defendants failed to produce evidence of Plaintiffs' invasion
of their privacy by misappropriation of likeness. This assignment
of error is overruled.
Finally, Defendants argue that the trial court erred by
denying their motion to compel discovery, on the grounds that it
was reasonably likely to lead to admissible evidence. We have
reviewed this assertion and find it to be without merit. This
assignment of error is overruled.
For the reasons discussed above, we conclude that the trial
court did not err and that its order should be
Judges McGEE and GEER concur.
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