{ "id": 8524278, "name": "JIMMY M. VARNER, Plaintiff-Appellant v. JOE J. BRYAN, V. CHARLES BULLOCK, and GREG C. JONES, Defendants-Appellees", "name_abbreviation": "Varner v. Bryan", "decision_date": "1994-03-01", "docket_number": "No. 9210SC1199", "first_page": "697", "last_page": "707", "citations": [ { "type": "official", "cite": "113 N.C. App. 697" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "497 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212323 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/0001-01" ] }, { "cite": "13 S.E. 775", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1891, "opinion_index": 0 }, { "cite": "109 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650166 ], "year": 1891, "opinion_index": 0, "case_paths": [ "/nc/109/0270-01" ] }, { "cite": "83 L.Ed.2d 121", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "269 U.S. 858", "category": "reporters:federal", "reporter": "U.S.", "year": 1984, "opinion_index": 0 }, { "cite": "312 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400761 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0312-01" ] }, { "cite": "390 U.S. 727", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178083 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "730" }, { "page": "266-267" } ], "opinion_index": 0, "case_paths": [ "/us/390/0727-01" ] }, { "cite": "115 L.Ed.2d 447", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1108062 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/us/501/0496-01" ] }, { "cite": "126 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567468 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0281-01" ] }, { "cite": "477 U.S. 242", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206897 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "257" }, { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/us/477/0242-01" ] }, { "cite": "383 U.S. 75", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167317 ], "weight": 5, "year": 1966, "pin_cites": [ { "page": "87" }, { "page": "606" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/us/383/0075-01" ] }, { "cite": "376 U.S. 254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379234 ], "weight": 6, "year": 1964, "pin_cites": [ { "page": "279-80" }, { "page": "706" }, { "page": "270" }, { "page": "701" }, { "page": "710-711" } ], "opinion_index": 0, "case_paths": [ "/us/376/0254-01" ] }, { "cite": "371 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525115 ], "year": 1988, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0218-01" ] }, { "cite": "36 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614267 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0584-01" ] }, { "cite": "317 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526234 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0323-01" ] }, { "cite": "387 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "97 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519292 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/97/0001-01" ] }, { "cite": "221 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566728 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0071-01" ] }, { "cite": "84 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1954, "pin_cites": [ { "page": "181-82", "parenthetical": "citations omitted" }, { "page": "182" } ], "opinion_index": 0 }, { "cite": "240 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609041 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "674", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0667-01" ] }, { "cite": "209 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563251 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0024-01" ] }, { "cite": "293 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] } ], "analysis": { "cardinality": 997, "char_count": 23470, "ocr_confidence": 0.776, "pagerank": { "raw": 2.83012926744478e-07, "percentile": 0.8390937077798745 }, "sha256": "ef5f9ddcac8f081b71d4c53dc69bf031ca6c25877f6b305f82d8f1eb96ffe738", "simhash": "1:2c5c743e05a60e44", "word_count": 3697 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "JIMMY M. VARNER, Plaintiff-Appellant v. JOE J. BRYAN, V. CHARLES BULLOCK, and GREG C. JONES, Defendants-Appellees" ], "opinions": [ { "text": "MARTIN, Judge.\nThe record on appeal contains six assignments of error, all of which are related to the entry of summary judgment dismissing plaintiffs claims. Initially, we note that plaintiff has not brought forward in his brief any reason or argument in support of his assignment of error relating to the dismissal of his claim for intentional infliction of emotional distress and has, therefore, abandoned the assignment of error. N.C. R. App. P., Rule 28(b)(5). Therefore, we will consider only those assignments of error relating to the entry of summary judgment dismissing plaintiff\u2019s claims for tortious interference with contract and defamation. For the reasons stated herein, we affirm the judgment of the trial court.\nG.S. \u00a7 1A-1, Rule 56(c) provides that summary judgment will be granted \u201cif 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.\u201d The party moving for summary judgment has the burden of establishing a lack of any triable issue of fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). In Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989), the Supreme Court characterized this burden as follows:\nThe movant may meet this burden by proving that an essential element of the opposing party\u2019s 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. [Citations omitted.] By making a motion for summary judgment, a-defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.\nSee also, Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). With these rules in mind, we review the record below to determine whether the trial court properly granted defendants\u2019 motion for summary judgment.\nI. Tortious Interference With Contract\nWe first consider plaintiff\u2019s claim for tortious interference with contract. In order to establish a claim for tortious interference with contract, plaintiff was required to forecast evidence of the following elements:\nFirst, that a valid contract existed between the plaintiff and a third person, conferring upon the plaintiff some contractual right against the third person. Second, that the outsider had knowledge of the plaintiff\u2019s contract with the third person. Third, that the outsider intentionally induced the third person not to perform his contract with the plaintiff. Fourth, that in so doing the outsider acted without justification. Fifth, that the outsider\u2019s act caused the plaintiff actual damages.\nChildress v. Abeles, 240 N.C. 667, 674, 84 S.E.2d 176, 181-82 (1954) (citations omitted).\nThe trial court\u2019s order of summary judgment was based in part on its conclusion that defendants were not outsiders to the contract with the Town of Knightdale. The court reasoned that defendants, as members of the Town Council, hired plaintiff and therefore were not outsiders to the contract against whom an action for interference with contract could be brought. However, in this State, one who is not an outsider to the contract may be liable for interfering therewith if he acted maliciously. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); You v. Roe, 97 N.C. App. 1, 387 S.E.2d 188 (1990); Murphy v. McIntyre, 69 N.C. App. 323, 317 S.E.2d 387 (1984). It is not enough, however, to show that a defendant acted with actual malice; the plaintiff must forecast evidence that the defendant acted with legal malice. Id. A person acts with legal malice if he does a wrongful act or exceeds his legal right or authority in order to prevent the continuation of the contract between the parties. Murphy, at 328-29, 317 S.E.2d at 401. The plaintiff\u2019s evidence must show that the defendant acted without any legal justification for his action. Childress, 240 N.C. 667, 84 S.E.2d 176.\nIndeed, actual malice and freedom from liability for this tort may coexist. If the outsider has a sufficient lawful reason for inducing the breach of contract, he is exempt from liability for so doing, no matter how malicious in actuality his conduct may be. A \u201cmalicious motive makes a bad act worse, but it cannot make that wrong which, in its own essence, is lawful.\u201d\nId. at 675, 84 S.E.2d at 182, quoting Bruton v. Smith, 225 N.C. 584, 36 S.E.2d 9 (1945).\nWe agree with defendants that plaintiff did not forecast evidence tending to show that defendants acted with legal malice when terminating plaintiffs employment. As plaintiff concedes, a town manager serves at the pleasure of the town council and it is within the scope of a town council member\u2019s duties, and therefore within defendants\u2019 authority, to discharge a town manager. Even if plaintiff was terminated by defendants for personal or political reasons, as his evidence tends to show, such termination was neither a wrongful act nor one in excess of defendants\u2019 authority and therefore not legally malicious. You, 97 N.C. App. 1, 387 S.E.2d 188. In the absence of any forecast of evidence demonstrating that defendants acted with legal malice, defendants\u2019 motion for summary judgment on plaintiff\u2019s claim for tortious interference with contract was properly granted.\nII. Defamation\nWe next consider the sufficiency of plaintiff\u2019s evidentiary forecast regarding his claim for defamation. \u201cIn actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards.\u201d Proffitt v. Greensboro News & Record, 91 N.C. App. 218, 221, 371 S.E.2d 292, 293 (1988). Where the plaintiff is a \u201cpublic official\u201d and the allegedly defamatory statement concerns his official conduct, he must prove that the statement was \u201cmade with \u2018actual malice\u2019 \u2014 that is, with knowledge that it was false or with reckless disregard of whether it was false or not.\u201d New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L.Ed.2d 686, 706 (1964). The rule requiring \u201cpublic officials\u201d to prove actual malice is based on First Amendment principles and reflects the Court\u2019s consideration of our national commitment to robust and wide-open debate of public issues. Id., at 270, 11 L.Ed.2d at 701. Thus, we must first consider whether plaintiff was a \u201cpublic official\u201d at the time the allegedly defamatory statements were made.\nDuring oral argument, plaintiff\u2019s counsel acknowledged that plaintiff was a \u201cpublic official\u201d while he was employed as Town Manager, but contended that plaintiff\u2019s \u201cpublic official\u201d status ceased when his employment as Town Manager was terminated. Defendants argued that for purposes of this defamation action, plaintiff\u2019s termination has little significance regarding his status as a \u201cpublic official.\u201d We agree with defendants.\nIn Rosenblatt v. Baer, 383 U.S. 75, 15 L.Ed.2d 597 (1966), the plaintiff, formerly a county supervisor, brought suit against the defendant, a local newspaper columnist, alleging that a certain article written by the defendant was libelous. The article at issue was published after the plaintiff\u2019s employment by the county had been terminated. The Court stated that there could be no serious contention that the plaintiff\u2019s termination had any decisional significance, reasoning that although the plaintiff was no longer employed as a public official, his performance in that capacity continued to be the subject of broad public interest and debate. Id., at 87, 15 L.Ed.2d at 606.\nUndoubtedly, a public official\u2019s job performance will often continue to be the subject of important public debate and discussion long after the termination of his employment in a public office. Rosenblatt\u2019s extension of \u201cpublic official\u201d status beyond the duration of an official\u2019s employment is consistent with the New York Times policy favoring robust and open debate of public issues. Thus, we hold that plaintiff was a \u201cpublic official\u201d for purposes of our review of the allegedly defamatory statements made after his termination as Town Manager.\nWhen a defamation action brought by a \u201cpublic official\u201d is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence presented is sufficient to allow a jury to find that actual malice had been shown with convincing clarity. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 91 L.Ed.2d 202, 217 (1986); Proffitt, supra. Plaintiff contends that he satisfied his burden of forecasting actual malice by offering clear and convincing evidence that defendants knew the statements were false, or acted with reckless disregard as to their truth or falsity. We disagree.\nPlaintiff first argues that his evidentiary burden was satisfied by evidence that hostility existed between himself and defendants as a result of \u201cprevious run-ins\u201d due to plaintiff\u2019s assertions that defendants Bullock and Bryan were in non-compliance with various town ordinances. In support of this contention, plaintiff directs us to the decision of this Court in You v. Roe, supra. In You, citing Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962), we held that actual malice may be proven by evidence of ill-will or personal hostility on the part of the defendant. However, the plaintiffs in Ponder and You, unlike plaintiff in the present case, were not \u201cpublic officials\u201d who were required to prove \u201cactual malice\u201d under the New York Times standard, i.e., that the statement was published with actual knowledge of its falsity or with reckless disregard of whether or not it was false. Moreover, the decisions in Rosenblatt, supra, and Masson v. New Yorker Magazine, Inc., 501 U.S. \u2014, 115 L.Ed.2d 447 (1991), make it clear that evidence of personal hostility does not constitute evidence of \u201cactual malice\u201d under the standard set forth in New York Times Co. v. Sullivan.\nIn Rosenblatt, the Court considered and found erroneous a jury charge which defined \u201cmalice\u201d as including \u201c \u2018ill will, evil motive, intention to injure ....\u2019\u201d Rosenblatt, at 84, 15 L.Ed.2d at 604. Likewise, in Masson, at \u2014, 115 L.Ed.2d at 468, the Court stated that \u201c[ajctual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.\u201d Plaintiff\u2019s forecast of evidence of personal animosity and ill will toward him by defendants was not sufficient to permit a finding of \u201cactual malice\u201d by clear and convincing evidence so as to preclude entry of summary judgment in favor of defendants.\nPlaintiff next argues that he produced a sufficient forecast of evidence of \u201cactual malice\u201d by presenting evidence that defendants called for an investigation with respect to an alleged misappropriation of public funds due to the increased contributions to plaintiff\u2019s retirement account after they knew, or had reason to know, that the implication of wrongdoing was false. Plaintiff argues that at the time the allegations were made defendants had been put on notice that the five percent 401(k) contributions to plaintiff\u2019s account were proper because Ms. Holmquist had informed them that the payments had been approved by \u201csomeone in authority\u201d, either the mayor or the town attorney. We disagree.\nAssuming, without deciding, that \u201cactual malice\u201d under the New York Times standard may be shown by evidence that a defendant published a defamatory statement after receiving notice of its falsity, plaintiff\u2019s forecast of evidence in the present case does not present a genuine issue of fact as to whether defendants did so. The evidence showed that contributions to the town employees\u2019 401(k) retirement plans are controlled by the town budget as approved by the Town Council, which did not authorize a five percent contribution to plaintiff\u2019s retirement plan. Plaintiff acknowledges that none of the defendants were party to, or had knowledge of, the discussions between himself, the mayor, the town attorney, or Ms. Holmquist regarding the applicability to plaintiff of the reduction in contributions as passed in the budget. Moreover, there is no indication in the record, and plaintiff does not argue, that either the mayor or the town attorney had authority to unilaterally approve expenditures not provided for in the budget. Therefore, evidence that defendants were informed, at a later meeting when the budget revisions were brought before the Council for approval, that the mayor or town attorney had approved plaintiff\u2019s instruction to Ms. Holmquist to contribute to his 401(k) account in an amount in excess of that authorized by the previously adopted budget does not constitute evidence that defendants had noticed that their subsequent statements were false.\nWe also reject plaintiff\u2019s contention that \u201cactual malice\u201d may be shown by evidence that defendants failed to avail themselves of available means for ascertaining the falsity of the statements. In New York Times, the plaintiff presented evidence that the defendant could have ascertained the falsity of the statements at issue by consulting its own previous news articles. In its discussion of this evidence, the Court stated:\nThe mere presence of the stories in the files does not, of course, establish that the Times \u201cknew\u201d the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times\u2019 organization having responsibility for the publication of the advertisement .... We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.\nNew York Times Co., at 287-288, 11 L.Ed.2d at 710-711. Likewise, in St. Amant v. Thompson, 390 U.S. 727, 730, 20 L.Ed.2d 262, 266-267 (1968), the Court held that evidence that the defendant failed to verify the veracity of his statements with persons who might have known the true facts fell short of proving the defendant\u2019s reckless disregard for the accuracy of his statements. Thus, to the extent the plaintiff\u2019s evidence may show that defendants made statements about his 401(k) contributions without utilizing readily available means for verifying the veracity of their statements, such evidence was insufficient to allow a finding by clear and convincing evidence that defendants acted with \u201cactual malice\u201d so as to preclude summary judgment in their favor.\nIn summary, we hold that defendants have shown through discovery that plaintiff cannot produce evidence to support an essential element of his claim for defamation, i.e., that any defamatory statements which defendants may have made were made with actual malice. Because we base this holding upon the constitutional grounds that a public figure cannot recover damages for defamation relating to his official conduct in the absence of proof of actual malice, as set forth in New York Times Co. v. Sullivan, supra, we need not decide the additional questions presented by the briefs, i.e., whether the statements were defamatory, and, if so, defamatory per se or were susceptible of more than one interpretation, one of which was defamatory, see Renwick v. News and Observer, 310 N.C. 312, 312 S.E.2d 405, cert. denied, 269 U.S. 858, 83 L.Ed.2d 121 (1984); whether the statements were absolutely privileged as made by defendants in the performance of legislative duties, see Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891); or whether the statements fell within the range of constitutionally protected statements of opinion relating to matters of public concern which were not probably false, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L.Ed.2d 1 (1990).\nAffirmed.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Womble, Carlyle, Sandridge & Rice, by G. Eugene Boyce and Susan S. McFarlane, for plaintiff-appellant.", "Michael B. Brough & Associates, by Michael B. Brough and Jan S. Simmons, for defendant-appellees." ], "corrections": "", "head_matter": "JIMMY M. VARNER, Plaintiff-Appellant v. JOE J. BRYAN, V. CHARLES BULLOCK, and GREG C. JONES, Defendants-Appellees\nNo. 9210SC1199\n(Filed 1 March 1994)\n1. Contracts \u00a7 181 (NCI4th)\u2014 tortious interference with contract \u2014no legal malice shown \u2014summary judgment proper\nThe trial court properly entered summary judgment for defendant town council members on plaintiff town manager\u2019s claim for tortious interference with contract, since defendants would be liable only upon a showing that defendants acted with legal malice in terminating plaintiff\u2019s employment, and, even if plaintiff was terminated by defendants for personal or political reasons, as his evidence tended to show, such termination was neither a wrongful act nor one in excess of defendants\u2019 authority and therefore not legally malicious.\nAm Jur 2d, Interference \u00a7\u00a7 39-48.\n2. Libel and Slander \u00a7 17 (NCI4th)\u2014 allegedly defamatory statements about town manager \u2014status as public official\nPlaintiff town manager was a public official for purposes of the review of allegedly defamatory statements made after his termination by defendant town council members.\nAm Jur 2d, Libel and Slander \u00a7\u00a7 130-134.\n3. Libel and Slander \u00a7 41 (NCI4th)\u2014 town manager\u2019s claim of defamation against city council \u2014 ill will \u2014 knowledge of falsity of statements \u2014insufficient evidence of malice\nThe trial court properly entered summary judgment for defendant town council members on plaintiff town manager\u2019s claim for defamation, since plaintiff\u2019s forecast of evidence of personal animosity and ill will toward him by defendants was not sufficient to permit a finding of actual malice by clear and convincing evidence, and since there was insufficient evidence that defendants knew or failed to ascertain from readily available information the falsity of their statements about possible misuse of public funds to make unauthorized contributions to plaintiff\u2019s 401(k) retirement plan.\nAm Jur 2d, Libel and Slander \u00a7 444.\nAppeal by plaintiff from order entered 27 July 1992 by Judge Henry V. Barnette, Jr., in Wake County Superior Court. Heard in the Court of Appeals 21 October 1993.\nPlaintiff, the former Town Manager of Knightdale, N.C., brought this action seeking damages for defamation, intentional infliction of emotional distress, and tortious interference with contract, against defendants who, at all times pertinent to this appeal, were members of the Knightdale Town Council. The record reflects that plaintiff was hired by the Council on 27 March 1989; the terms of his employment included an annual salary of $36,400.00, an annual five percent contribution to a 401(k) retirement plan, and other benefits. At the time plaintiff was hired, all town employees received a 401(k) contribution equal to five percent of their annualized salary.\nIn June of 1990, the Council adopted the town\u2019s annual budget for 1990-1991. As a part of the budget, the Council reduced the 401(k) contributions for all town employees except police department employees from five percent to one percent. According to plaintiff, he sought a clarification from Mayor Billy Wilder and Town Attorney Joseph Howell that the reduction in 401(k) contributions did not apply to his position, and received assurances that the reduction did not apply to him. Defendants, however, were unaware of those assurances.\nFollowing passage of the budget, Elaine Holmquist, town finance director, acted to put into effect the 401(k) contribution reduction affected by the new budget. Ms. Holmquist understood that contributions to plaintiff\u2019s retirement plan were to be reduced along with all other 401(k) contributions. Plaintiff informed Ms. Holmquist that the contribution to his retirement plan was supposed to remain at five percent and Ms. Holmquist confirmed this fact with \u201csomeone in authority.\u201d However, Ms. Holmquist did not discuss the matter with any of the defendants. Contributions were made to plaintiff\u2019s 401(k) account at five percent, even though the town budget funded this expense at only one percent.\nSometime during 1990, the three defendants became dissatisfied with plaintiffs performance as manager and, after discussions among themselves and with others, decided to seek his resignation or terminate his employment. Plaintiff\u2019s evidence tended to show that defendants\u2019 dissatisfaction with his performance was personal in nature, having to do with plaintiff\u2019s opinion that defendants Bullock and Bryan were violating certain town ordinances in connection with their businesses, or was politically motivated; defendants\u2019 evidence tended to show that they considered plaintiff\u2019s job performance to be inadequate. On 4 December 1990, during an executive session of the Council, defendants informed plaintiff that they were dissatisfied with his job performance and requested his resignation. On the following day, the Council met in open session and voted to terminate plaintiff\u2019s employment by a vote of 3-2, with each defendant voting in favor of termination. Plaintiff\u2019s discharge generated a large amount of publicity in the local media and among the town\u2019s citizens, much of which was in opposition to plaintiff\u2019s termination. In response, defendants made certain statements to the media and to citizens about their reasons for voting to terminate plaintiff, to the effect that plaintiff had been terminated for unsatisfactory job performance.\nIn March 1991, approximately four months after plaintiff\u2019s discharge, finance director Holmquist prepared a memorandum seeking revisions to the town\u2019s 1990-1991 budget. Included in the revisions was a request for funds sufficient to contribute to plaintiff\u2019s retirement plan at the rate of five percent. This request was necessary because the funds which had been appropriated the previous June for payment of plaintiff\u2019s retirement contributions were nearly depleted due to the fact that the town had contributed to his plan at a rate of five percent while budgeting that expense at only one percent.\nDefendant Bryan first learned of the five percent contributions to plaintiff\u2019s plan by virtue of this memorandum. At the next regular Council meeting, on 13 March 1991, defendant Bryan made the following motion which plaintiff alleges was defamatory:\nMr. Mayor, in order to protect our citizens and maintain their public trust and confidence, I motion to direct the town attorney to investigate this situation and determine if there was a misappropriation of public funds or other wrongdoing involved. Further, for the town attorney to report his findings and recommendations at the April town board meeting.\nPlaintiff also alleged that defendants made additional statements suggesting that plaintiff had misappropriated public funds, and that some of these statements were publicized in newspaper reports. Plaintiff alleged that the statements were false and damaged him in his \u201creputation, office, profession, and means of livelihood.\u201d He also alleged that by their conduct, defendants had intentionally interfered with his employment contract with the Town of Knightdale and had intentionally inflicted emotional distress upon him.\nThe trial court granted defendants\u2019 motion for summary judgment on all claims. Plaintiff appealed.\nWomble, Carlyle, Sandridge & Rice, by G. Eugene Boyce and Susan S. McFarlane, for plaintiff-appellant.\nMichael B. Brough & Associates, by Michael B. Brough and Jan S. Simmons, for defendant-appellees." }, "file_name": "0697-01", "first_page_order": 727, "last_page_order": 737 }