211 N.C. App. 469
N.C. Ct. App.2011Background
- Defendants appeal a trial court denial of their summary judgment motion in a defamation/UDTP action arising from a 2000 political ad.
- The ad accused Boyce & Isley firm and Dan Boyce of unethical billing and sued the state, asserting false and defamatory statements.
- Plaintiffs alleged the ad was knowingly false and published with reckless disregard for truth.
- Boyce I (2002) held the statements were defamatory per se as to the plaintiffs and sufficient to survive dismissal.
- On remand, Defendants sought summary judgment arguing issues including actual malice, falsity, and liability under chapter 75.
- The Court affirms the trial court, finding genuine issues of material fact remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Boyce I controls as law of the case | Boyce I settled the defamation issue | Law of the case doesn't bind at this stage | Law of the case applies for identical issues |
| Whether the ad was false | Ad falsely asserts Boyce’s firm sued the state | Statements were true or not false | Genuine issues of material fact on falsity exist |
| Whether defendants acted with actual malice | E-mails show knowledge of falsity or reckless disregard | Cannot prove actual malice for all plaintiffs | Genuine issues of material fact on actual malice for at least some plaintiffs |
| Whether the ad was ‘of or concerning’ each plaintiff | References to 'Dan Boyce's law firm' identified firm and thus all plaintiffs | Not all plaintiffs identified individually | Advertisement was ‘of or concerning’ plaintiffs—law of the case supports this |
| Whether plaintiffs have established an unfair and deceptive trade practices claim | Defamation per se supports U&DPT claim | Need separate proof of unfair/deceptive act | Defendants’ motion denied; evidence supports U&DPT claim |
Key Cases Cited
- Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25 (2002) (defamatory per se findings settled; law of the case principles apply in review on remand)
- Boyce & Isley, PLLC v. Cooper, 169 N.C.App. 572 (2005) (remand context; summary judgment standards differ but defamation law remains controlling)
- Priest v. Sobeck, 357 N.C. 159 (2003) (substantial rights implicated in First Amendment/defamation context)
- Goldston v. American Motors Corp., 326 N.C. 723 (1990) (two-step test for interlocutory appeal; substantial right requirement)
- Gaunt v. Pittaway, 139 N.C.App. 778 (2000) (limited public figure analysis; ‘vortex’ concept for public controversy)
- Arnold v. Sharpe, 296 N.C. 533 (1979) (defamatory statements must refer to an ascertainable person)
- Carter v. King, 174 N.C. 549 (1917) (even when referring to a class, members may sue if identifiable through reference)
- Renwick v. News and Observer Pub. Co., 310 N.C. 312 (1984) (defamation standard; single interpretation requirement)