Burton v. NCNB Nat. Bank of North CarolinaBurton v. NCNB Nat. Bank of North Carolina
This is a civil action for alleged libel, intentional infliction of emotional distress, “threat of criminal prosecution” and "false light” invasion of privacy. The trial court dismissed plaintiffs cause of action for “false light” invasion of privacy and granted summary judgment for defendants on each of plaintiffs other actions. Plaintiff appeals from the summary judgment.
The issues are: (1) whether plaintiffs appeal should be dismissed for failure to comply with North Carolina Rules of Appellate Procedure, Rule 10(a) and (2) whether summary judgment for defendants was proper.
I
Plaintiff failed to set out any assignments of error in the record. Defendants contend plaintiffs appeal should be dismissed under Rule 10(a) of the Appellate Rules of Procedure.
An appeal from entry of summary judgment presents the question of whether the judgment is supported by the conclusions of law and therefore constitutes an exception to the general requirement of Rule 10(a) that assignments of error must appear in the record.
Beaver v. Hancock,
II
A
Plaintiff first argues that summary judgment should not have been entered
The denial of the motion to dismiss under Rule 12(b)(6) does not prevent the trial court from granting a subsequent motion for summary judgment.
Barbour v. Little, 37
N.C. App. 686, 692,
B
Summary judgment is appropriate when there is no genuine issue as to any material fact and any party is entitled to judgment as a matter of law. N.C.G.S. Sec. 1A-1, Rule 56(c) (Nov. 1983).
It is undisputed that, at the time of the alleged libel, plaintiff was the defendant in a lawsuit initiated by defendant NCNB. The suit was for collection of a debt plaintiff had allegedly guaranteed. Defendant Brown, an attorney, represented NCNB in the matter and wrote a letter to plaintiffs attorney concerning the suit. It was the opinion of Brown and NCNB that a financial statement filed by plaintiff with the bank did not accurately reflect plaintiffs financial holdings at the time of its filing. Brown’s letter set forth that opinion and further contained this sentence: “I write at the request of the bank to let you know that criminal prosecution under 18 U.S.C. Sec. 1014 as a result of the foregoing described discrepancies remains a viable option which is being given serious consideration.” Copies of the letter were sent to two officers of defendant NCNB.
Plaintiff contends the letter libeled him in his business and the court erred in granting defendants’ summary judgment on plaintiffs cause of action for libel. We hold that defendants are protected by an absolute privilege. Therefore, the court’s summary judgment regarding the cause of action for libel must be affirmed.
The general rule in North Carolina is that a defamatory statement is absolutely privileged if it was “made in due course of a judicial proceeding,” even if it was made with express malice.
Jarman v. Offutt,
Our courts have held that statements are “made in due course of a judicial proceeding” if they are submitted to the court presiding over litigation or to the government agency presiding over an administrative hearing and are relevant or pertinent to the litigation or hearing.
See Scott v. Veneer Co.,
Our courts have not addressed the question of whether out-of-court communications between parties or their attorneys during the course of a judicial proceeding are “made in due course of a judicial proceeding” and, therefore, absolutely privileged.
Absolute privilege is restricted to cases in which the public has a strong interest in allowing the defendant to “speak out his mind fully and freely.”
Ramsey,
At the time Brown wrote the letter, NCNB and plaintiff were parties in an action brought by NCNB to recover a debt from plaintiff as its guarantor. Brown represented NCNB in the action and addressed the letter to plaintiff s counsel. Copies of the letter were sent only to NCNB officials intimately involved in the action to recover on the debt. The financial statement referred to in the allegedly defamatory letter was part of the bank’s requirements in order to give a loan. Any discrepancies in it were relevant to the action on the debt. We do not find, in the words of
Scott v. Veneer Co.,
that the letter is “so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety.”
C
Plaintiff contends the trial court erred in granting summary judgment for defendants on the cause of action for intentional infliction of emotional distress.
The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct, (2) which is intended to cause and does cause, (3) severe emotional distress.
Dickens v. Puryear,
Plaintiff contends the statement by Brown that NCNB was considering criminal prosecution for the filing of an inaccurate financial statement was extreme and outrageous conduct, intending to cause and causing severe emotional distress. We find the statement does not, under the facts of this case, exceed “all bounds usually tolerated by decent society.” We find as a matter of law that the statement was not extreme and outrageous conduct. Therefore, summary judgment on the cause of action for intentional infliction of emotional distress is affirmed.
D
Lastly, plaintiff contends the trial court erred in granting summary judgment for defendants on the cause of action for “threat of criminal prosecution.” Plaintiff suggests several bases for this cause of action in his brief but fails either to point the Court to authority which acknowledges the existence of such a tort or to support his contention with any reasoning or argument. We, therefore, hold that plaintiff has abandoned this assignment of error under Rule 28(b)(5) of the Rules of Appellate Procedure.
Ill
The entry of summary judgment as to all of plaintiffs claims was appropriate and that judgment is
Affirmed.