JAMES HWANG, MD, Plaintiff, v. BRUCE CAIRNS, THE UNIVERSITY OF NORTH CAROLINA, THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL and UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM, Defendants.
No. COA22-31-2
IN THE COURT OF APPEALS OF NORTH CAROLINA
Filed 17 December 2025
Durham County, No. 18CVS002942-310
Appeal by plaintiff from orders entered 6 August 2021 by Judge John M. Dunlow in Durham County Superior Court, and cross-appeal by defendants from order entered 4 April 2019 by Judge Lora Cubbage in Durham County Superior Court. Originally heard in the Court of Appeals 2 November 2022, with opinion issued 17 January 2023. On 23 May 2025, the Supreme Court reversed the decision of the Court of Appeals affirming the trial court’s grant of summary judgment in favor of Defendant Cairns and remanded to this Court for reconsideration of the parties’ remaining arguments.
Zaytoun Ballew & Taylor, PLLC, by John R. Taylor, Robert E. Zaytoun, Matthew D. Ballew, and Clare F. Kurdys, for plaintiff-appellant/cross appellee.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Eric M. David, for defendants-appellees/cross-appellants the University of North Carolina and the University of North Carolina at Chapel Hill, UNC Office of University Counsel, by Marla S. Bowman, for defendant-appellee/cross-appellant the University of North Carolina at Chapel Hill, and University of North Carolina, by Laura E. Dean, for defendant-appellee/cross-appellant the University of North Carolina.
Attorney General Jeff Jackson, by Assistant Attorney General Robert T. Broughton, and Wyrick Robbins Yates & Ponton LLP, by T. Cullen Stafford and Michael D. DeFrank, for defendant-appellee/cross-appellant the University of North Carolina Health Care System.
ZACHARY, Judge.
This case returns to us for reconsideration of limited issues following remand by our Supreme Court. In the first appeal to this Court, Plaintiff James Hwang, M.D., appealed from the trial court’s 6 August 2021 orders granting summary judgment in favor of Defendants the University of North Carolina Health Care System and Bruce Cairns, M.D., and its order granting Defendants the University of North Carolina and the University of North Carolina at Chapel Hill’s motions to dismiss and for summary judgment.1 Plaintiff also appealed from the court’s 6 August 2021 order
In Hwang v. Cairns (”Hwang I“), 287 N.C. App. 521, 882 S.E.2d 153, 2023 WL 192912 (2023) (unpublished), a unanimous, unpublished opinion filed on 17 January 2023, this Court, inter alia: (1) affirmed the trial court’s grant of summary judgment in favor of the University Defendants, Hwang I, 2023 WL 192912 at *8–*9; (2) affirmed the court’s grant of summary judgment in favor of Defendant, id. at *11; (3) determined that Plaintiff had abandoned any arguments on appeal concerning the grant of summary judgment on his claims for slander per quod and his request for punitive damages against Defendant, as well as the joint and several liability of all Defendants, id.; (4) concluded that “[w]hile it was error for the trial court to grant the motions for summary judgment without first ruling on Plaintiff’s motion to amend his pleadings under
Plaintiff filed a petition for discretionary review on 21 February 2023, and Defendants filed a conditional petition for discretionary review on 6 March 2023. Hwang v. Cairns (”Special Order“), 385 N.C. 298, 298, 890 S.E.2d 913, 914 (2023). In a special order filed 30 August 2023, our Supreme Court allowed limited review of Plaintiff’s “first proposed issue“: “Did the Court of Appeals err in affirming the order
On 23 May 2025, our Supreme Court reversed our decision affirming the trial court’s grant of summary judgment in favor of Defendant. Hwang v. Cairns (”Hwang II“), 387 N.C. 448, 449, 915 S.E.2d 425, 427 (2025). The Court concluded that “Defendant is not a public official, and he is not entitled to public official immunity” and “decline[d] the parties’ invitation to address additional issues.” Id. at 457–58, 915 S.E.2d at 432. The Court remanded the matter to this Court for reconsideration of the parties’ remaining arguments. Id. at 458, 915 S.E.2d at 432.
In light of our Supreme Court’s conclusion that Defendant is not entitled to public official immunity, we now reverse the trial court’s grant of summary judgment
I. Background
The full facts and procedural history of this matter are set forth in Hwang I and II. We recite here only those facts necessary for our analysis of the trial court’s grant of summary judgment in favor of Defendant on Plaintiff’s claims of slander per se and tortious interference with contract.
“Plaintiff was a surgeon with the UNC Burn Center from 2010 until 2017. In June 2017, [he] resigned to accept a similar position with another medical center. Plaintiff alleged that his decision to leave resulted from, in part, [D]efendant’s relentless harassment and creation of a hostile work environment.” Hwang II, 387 N.C. at 449–50, 915 S.E.2d at 427. “When [P]laintiff announced that he was leaving the UNC Burn Center, three of [his] colleagues planned and paid for a surprise going-away party at an off-campus restaurant.” Id. at 450, 915 S.E.2d at 427. “UNC Burn Center employees, family members, and [P]laintiff’s wife attended. Defendant was invited but did not attend.” Id.
“Two weeks after the party, a complaint was filed with the UNC School of
During the investigation, Defendant provided differing accounts as to whether he was the source of the complaint:
Defendant was interviewed twice as part of the investigation, and he told investigators that “after getting reports from people who attended the party and seeing pictures on social media, there was no doubt that he/she needed to bring it forward to discuss.” But [D]efendant claimed that he could not remember who showed him the pictures or on which social media site they were posted. Defendant testified in a deposition, contrary to the information he provided to investigators, that he did not actually see the pictures and that Dr. Ortiz-Pujols was the source of the complaint. Although the Associate Dean for Human Resources testified that investigators routinely interview individuals with information relevant to alleged misconduct, Dr. Ortiz-Pujols was not interviewed.
Id. at 450–51, 915 S.E.2d at 428.
When the formal investigation into Plaintiff’s alleged misconduct began,
“In February 2021, all of the [D]efendants moved for summary judgment.” Id. The documentary evidence before the trial court on summary judgment “suggested conflicting evidence about the . . . origin and timing” of the complaint filed against Plaintiff. Id. As our Supreme Court explained in Hwang II, “the record shows that the question of who made the complaint is disputed” and “[d]uring the UNC investigation, the investigators believed, according to their deposition testimony, that [D]efendant himself made the complaint.” Id. at 450 n.1, 915 S.E.2d at 427 n.1.
On 6 August 2021, the trial court entered an order granting Defendant’s motion for summary judgment, finding “no genuine issue as to any material fact” and concluding that Defendant was “entitled to judgment as a matter of law as to all
As set forth above in full, our Supreme Court allowed limited review of Plaintiff’s “first proposed issue” and allowed limited review of Defendants’ conditional petition. Special Order, 385 N.C. at 298, 890 S.E.2d at 914.
In Hwang II, our Supreme Court concluded that “Defendant is not a public official, and he is not entitled to public official immunity.” 387 N.C. at 457, 915 S.E.2d at 432. The Court also concluded that it had improvidently allowed Defendant’s conditional petition for discretionary review, id. at 453 n.2, 915 S.E.2d at 429 n.2, and remanded the matter to this Court for reconsideration of the remaining issues. Id. at 458, 915 S.E.2d at 432.
II. Discussion
In light of our Supreme Court’s holding that Defendant is not entitled to public official immunity, on remand we reconsider Defendant’s cross-appeal of the trial court’s 2019 order denying his motion to dismiss, and Plaintiff’s argument that the trial court erred by granting summary judgment in favor of Defendant as to Plaintiff’s claims of slander per se and tortious interference with contract. After careful review, we affirm the order denying the motion to dismiss, and reverse and remand for
A. Cross-Appeal
We first address Defendant’s cross-appeal from the trial court’s order denying his motion to dismiss. In Hwang I, this Court dismissed as moot Defendants’ joint cross-appeal of the order denying their motion to dismiss because we affirmed the trial court’s grant of summary judgment. Hwang I, 2023 WL 192912 at *13. When allowing the petition for discretionary review of the denial of the motion to dismiss, our Supreme Court limited its review to Defendant’s “immunity defenses as they apply to [Plaintiff]’s claims for slander per se and tortious interference with contract.” Special Order, 385 N.C. at 298, 890 S.E.2d at 914 (italics omitted). In Hwang II, the Court addressed Defendant’s petition in a footnote: “Defendant appealed [the] denial of his 2019 motion to dismiss to the Court of Appeals. Defendant’s cross-appeal on this issue was determined to be moot given the Court of Appeals’ decision regarding summary judgment, and we conclude that [D]efendant’s conditional petition for discretionary review was improvidently allowed.” 387 N.C. at 453 n.2, 915 S.E.2d at 429 n.2. But see id. at 459, 890 S.E.2d at 433 (Riggs, J., concurring) (“This Court obviously could decide that discretionary review was improvidently allowed, but we did not do so and cannot just ignore issues we have explicitly decided to address.“)
The disposition at the end of Hwang II reads only “REVERSED AND REMANDED” and makes no mention of the conclusion that the petition was
In his portion of the joint cross-appeal, Defendant contended that the trial court erred by concluding that he “was not a public official and therefore was not entitled to immunity.” Our Supreme Court rejected this argument. Hwang II, 387 N.C. at 457, 915 S.E.2d at 432. Accordingly, we affirm the trial court’s order denying Defendant’s motion to dismiss. We shall not address the University Defendants’ portion of the joint cross-appeal, which was previously dismissed as moot in Hwang I and which holding the Hwang II Court did not disturb.
B. Summary Judgment
We next consider plaintiff’s challenge to the summary judgment order. Plaintiff argues that the trial court erred by granting Defendant’s motion for summary judgment regarding Plaintiff’s claims for slander per se and tortious interference with contract because “all material facts of [his] claims . . . [we]re supported by substantial evidence and [we]re not barred by any affirmative defense.” We agree.
Summary judgment is appropriate “if 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.”
An issue is genuine if it is “supported by substantial evidence, and an 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.” James H.Q. Davis Tr. v. JHD Props., LLC, 387 N.C. 19, 23, 910 S.E.2d 652, 657 (2025) (cleaned up). “The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact.” Id. (citation omitted). “Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Id. (citation omitted). “The responding party may not rest upon mere allegations or denials in the pleadings, and its response must set forth specific facts showing that there is a genuine issue for trial.” Id. (cleaned up).
2. Slander Per Se
Slander per se is a defamation action, requiring Plaintiff to prove that: (1) Defendant “spoke base or defamatory words which tended to prejudice [Plaintiff] in his reputation, office, trade, business or means of livelihood or hold him up to disgrace, ridicule or contempt; (2) the statement was false; and (3) the statement was published or communicated to and understood by a third person.” West v. King’s Dept. Store, Inc., 321 N.C. 698, 703, 365 S.E.2d 621, 624 (1988). Even if Plaintiff shows these elements, however, “a defamation action will not lie if the circumstances under which the statement was published confer upon the publisher a privilege to publish it.” Bouvier v. Porter, 386 N.C. 1, 10, 900 S.E.2d 838, 846 (2024) (cleaned up).
Here, Plaintiff contends that the trial court erred by granting summary judgment in favor of Defendant on Plaintiff’s slander per se claim because he presented substantial evidence that Defendant “maliciously published false accusations that Plaintiff committed sexual misconduct.” Defendant, however, maintains that “summary judgment was properly entered” in his favor because, inter alia, “the statements were subject to absolute privilege and qualified privilege.”
Qualified privilege rests upon a common-law principle of public policy: “When an otherwise defamatory communication is made in pursuance of a political, judicial, social, or personal duty, an action for libel or slander will not lie though the statement be false unless actual malice be proved in addition.” Dobson v. Harris, 352 N.C. 77, 81–82, 530 S.E.2d 829, 834 (2000) (cleaned up).
The defense of qualified or conditional privilege arises in circumstances where (1) a communication is made in good faith, (2) the subject and scope of the communication is one in which the party uttering it has a valid interest to uphold, or in reference to which he has a legal right or duty, and (3) the communication is made to a person or persons having a corresponding interest, right, or duty.
Presnell v. Pell, 298 N.C. 715, 720, 260 S.E.2d 611, 614 (1979) (emphasis omitted).
But assuming, arguendo, that Defendant is entitled to a qualified-privilege defense, Plaintiff may overcome that defense “if he can prove that the words were not used bona fide, but that . . . [D]efendant used the privileged occasion artfully and knowingly to falsely defame” him. Ponder v. Cobb, 257 N.C. 281, 293, 126 S.E.2d 67, 76 (1962) (italics omitted).
Taking the evidence in the light most favorable to Plaintiff, our careful review of the record reveals the existence of a genuine issue of material fact: whether Defendant acted with malice, thereby defeating any applicable defense of qualified privilege. See In re Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576. As the concurring opinion in Hwang II detailed:
[Plaintiff] forecast evidence from the investigation report and the depositions of the investigators indicating that the source of the complaint was [Defendant], not Dr. Ortiz-Pujols. [Plaintiff] forecast evidence that [Defendant] significantly changed his testimony between his interview
with the investigators and his deposition in this case. In his interview with the investigators, [Defendant] stated that he personally saw pictures of misconduct. In contrast, in his deposition, [Defendant] testified that he never saw any pictures of sexual misconduct. This evidence, coupled with [Defendant’s] pattern of harassing and threatening [Plaintiff] and other medical doctors who left the institution, may support an inference at this permissive stage that [Defendant] was manufacturing a complaint rather than bringing forth a valid concern.
387 N.C. at 461, 915 S.E.2d at 434 (Riggs, J., concurring).
In addition to producing evidence that tends to support that Defendant acted with malice, Plaintiff also raised general questions regarding Defendant’s credibility and character:
[Plaintiff] produced numerous depositions and affidavits from UNC Burn Center employees in which those employees attested that [Defendant] previously threatened or made false complaints for the purpose of damaging the professional reputations of doctors, nurses, and physician assistants at the UNC Burn Center. Furthermore, the deposition testimony supports an inference that [Defendant] acted in a threatening and hostile manner towards [Plaintiff]. Last, [Plaintiff] produced deposition and affidavit evidence from several witnesses who attended the party at issue and attested that there was no basis for a complaint.
Id. at 461, 915 S.E.2d at 434–35.
In sum, Plaintiff has demonstrated on appeal that there remain genuine issues of material fact concerning Defendant’s entitlement to the defense of qualified privilege; these questions of fact “must be resolved by a jury at trial and not by a trial court at summary judgment.” N.C. Farm Bureau Mut. Ins. Co. v. Herring, 385 N.C. 419, 425, 894 S.E.2d 709, 714 (2023).
3. Tortious Interference with Contract
To maintain an action for tortious interference with contract, Plaintiff must show: “(1) the existence of a valid contract between [P]laintiff and a third party; (2) knowledge by [D]efendant of the contract; (3) acts by [D]efendant to intentionally induce the third party not to perform the contract; (4) [D]efendant’s acts were committed without justification; and (5) actual damage to . . . [P]laintiff.” Barker v. Kimberly-Clark Corp., 136 N.C. App. 455, 462, 524 S.E.2d 821, 826 (2000).
On appeal, Plaintiff contends that the trial court erroneously entered summary judgment for Defendant on Plaintiff’s claim for tortious interference with contract because the evidence supported that Defendant “not only knew his false accusations would result in a frivolous investigation, contract breach and subsequent damages,” but also that he made such false allegations “with malice and personal animus towards Plaintiff.”
In Barker, two of the defendants were the plaintiff’s managers and had knowledge of her permanent employment contract. Id. The plaintiff “allege[d] that
Here, Plaintiff’s theory and proffered evidence in favor of his claim for tortious interference with contract are similar to that presented in Barker. Plaintiff accuses Defendant of knowing the relevant terms of Plaintiff’s employment contract—namely, that his wages would be withheld pending an investigation of his alleged conduct—and of acting with the belief that the UNC Health Care System “policy would not allow his report to be ignored, discredited, or rejected without screening and investigation.” As in Barker, Plaintiff’s “forecast of evidence sufficiently raises the issue as to whether [Defendant’s] motives . . . were reasonable, good faith attempts to protect [his] interests or [their employer]’s interests.” Id.
The issue of whether Defendant acted with wrongful purpose presents a question of fact for the jury on this claim, as well. In Lenzer v. Flaherty, this Court
Defendant nevertheless asserts that because UNC-Chapel Hill “acted in accordance with its policies in withholding Plaintiff’s incentive pay pending the outcome of the investigation, there was no actionable breach of contract.”4 “In the absence of a breach of contract,” Defendant claims, he “cannot be held liable for interference with contract and summary judgment was properly entered on this basis alone.” We disagree.
It is well settled that the party raising a tortious-interference claim “does not
Ultimately, summary judgment was an inappropriate vehicle for resolving Plaintiff’s tortious-interference claim as Plaintiff has forecast evidence sufficient to raise genuine issues of material fact. See, e.g., Est. of Graham v. Lambert, 385 N.C. 644, 652, 898 S.E.2d 888, 896 (2024) (“To survive summary judgment, . . . the plaintiff need not convince the court that he would prevail on a triable issue of material fact but only that the issue exists.” (cleaned up)). Accordingly, we also reverse the trial court’s order granting summary judgment to Defendant as to this claim and remand for further proceedings.
III. Conclusion
After reconsidering the remaining arguments following remand from our Supreme Court’s opinion in Hwang II, we affirm the trial court’s order denying Defendant’s motion to dismiss, insofar as Defendant’s cross-appeal of this order is again before us. The University Defendants’ portion of that order remains unaffected by the instant opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Judges ARROWOOD and GRIFFIN concur.
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