{ "id": 11916646, "name": "HERBERT A. WALLACE, Plaintiff-Appellee v. SCOTT E. JARVIS, d/b/a SCOTT E. JARVIS & ASSOCIATES, Defendant-Appellant", "name_abbreviation": "Wallace v. Jarvis", "decision_date": "1995-07-18", "docket_number": "No. COA94-1099", "first_page": "582", "last_page": "585", "citations": [ { "type": "official", "cite": "119 N.C. App. 582" } ], "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": "N.C. Gen. Stat. \u00a7 84-28.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1985, "opinion_index": 0 }, { "cite": "429 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "745" }, { "page": "746" }, { "page": "746", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 422", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525730 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0422-01" ] }, { "cite": "404 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544832, 2540705, 2539189, 2543193, 2543230 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0731-03", "/nc/328/0731-04", "/nc/328/0731-02", "/nc/328/0731-05", "/nc/328/0731-01" ] }, { "cite": "399 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527593 ], "year": 1991, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0255-01" ] }, { "cite": "398 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527418 ], "year": 1990, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0168-01" ] }, { "cite": "337 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714861, 4717589, 4718136, 4718201, 4717178 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0183-03", "/nc/315/0183-05", "/nc/315/0183-02", "/nc/315/0183-04", "/nc/315/0183-01" ] }, { "cite": "331 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526659 ], "year": 1985, "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0654-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "253", "parenthetical": "quoting Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 (1985)" }, { "page": "253", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "379", "parenthetical": "quoting Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 (1985)" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] } ], "analysis": { "cardinality": 447, "char_count": 7931, "ocr_confidence": 0.73, "pagerank": { "raw": 2.7501890887803853e-07, "percentile": 0.832669781133958 }, "sha256": "a329f303bfd88371fe652dbcb6b78c3d3881ccf7748b6f63ee8bed1292845f76", "simhash": "1:81a2ed6616d814f2", "word_count": 1264 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and JOHN concur." ], "parties": [ "HERBERT A. WALLACE, Plaintiff-Appellee v. SCOTT E. JARVIS, d/b/a SCOTT E. JARVIS & ASSOCIATES, Defendant-Appellant" ], "opinions": [ { "text": "WALKER, Judge.\nBoth parties are attorneys licensed to practice law in North Carolina. From July 1991 until February 1993, plaintiff was an associate in defendant\u2019s law office. A dispute arose as to whether plaintiff was entitled to a portion of certain fees collected by defendant\u2019s law office. Shortly before plaintiff left defendant\u2019s employ, defendant contacted the North Carolina State Bar to report possible problems with plaintiff\u2019s physical and mental condition. By letter dated 15 February 1993, the Chairman of the State Bar\u2019s Grievance Committee informed plaintiff that a grievance had been filed by the State Bar concerning plaintiff. The letter was accompanied by a document entitled \u201cSubstance of Grievance\u201d stating that \u201c[t]he State Bar has received information suggesting that the respondent attorney may be disabled owing to a mental or physical condition. The respondent apparently has periods during which he is extremely forgetful and may be suffering from Alzheimer\u2019s.\u201d After receiving plaintiff\u2019s response to the letter, the State Bar informed plaintiff on 22 July 1993 that the Grievance Committee had dismissed the grievance with no finding of probable cause.\nPlaintiff filed suit against defendant alleging causes of action for breach of contract, quantum meruit, slander, unfair trade practices, and malicious prosecution. Defendant denied liability and asserted that \u201c[a]ny statement made by Defendant to the State Bar concerning Plaintiff is both conditionally and absolutely privileged and cannot be the basis for the finding of any liability of Defendant to Plaintiff.\u201d Defendant also counterclaimed for slander and intentional infliction of emotional distress. Both parties moved for partial summary judgment. On 18 July 1994, the trial court granted summary judgment in favor of plaintiff on defendant\u2019s counterclaim for intentional infliction of emotional distress and in favor of defendant on plaintiff\u2019s claims for quantum meruit and unfair trade practices. The court denied defendant\u2019s motion for summary judgment on plaintiff\u2019s claims for malicious prosecution and slander. Defendant appeals the denial of summary judgment on these claims.\nThe trial court\u2019s order does not completely dispose of the case and is thus interlocutory. See Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). Ordinarily, there is no right to appeal an interlocutory order. Id. The purpose of this rule is \u201c \u2018to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.\u2019 \u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (quoting Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 (1985)).\nHowever, there are two means by which a party may appeal an interlocutory order. \u201cFirst, if there has been a final disposition of at least one but fewer than all claims, the final disposition of those claims may be appealed if the trial judge in addition certifies that there is no just reason to delay the appeal.\u201d Myers v. Barringer, 101 N.C. App. 168, 172, 398 S.E.2d 615, 617 (1990). Second, if an interlocutory order \u201c \u2018deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits,\u2019 \u201d the order is immediately appealable. Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (citation omitted).\n\u201cThe denial of a motion for summary judgment is not a final judgment and is generally not immediately appealable, even if the trial court has attempted to certify it for appeal under Rule 54(b).\u201d Henderson v. LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142, 147, disc. rev. denied, 328 N.C. 731, 404 S.E.2d 868 (1991). Therefore, in order to immediately appeal, defendant here has the burden of showing that the trial court\u2019s order deprives him of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.\nIn a footnote to his brief, defendant argues that he has a right to appeal based on this Court\u2019s holding in Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993). In Slade, the defendants moved for summary judgment based on a claim of sovereign immunity, and the trial court denied the motion. Id. at 424-25, 429 S.E.2d at 745. This Court held that the defendants were entitled to an immediate appeal, reasoning that \u201c[a] valid claim of immunity is more than a defense in a lawsuit; it is in essence immunity from suit.\u201d Id. at 425, 429 S.E.2d at 746. Thus, the Court stated, \u201c[w]ere the case to be erroneously permitted to proceed to trial, immunity would be effectively lost.\u201d Id. Defendant here argues that his communication to the State Bar was absolutely privileged and he is therefore immune from suit on plaintiff\u2019s slander and malicious prosecution claims. He bases his claim of immunity on N.C. Gen. Stat. \u00a7 84-28.2 (1985), which provides in part:\nPersons shall be immune from suit for all statements made without malice, and intended for transmittal to the North Carolina State Bar or any committee, officer, agent or employee thereof, or given in any investigation or proceedings, pertaining to alleged misconduct, incapacity or disability or to reinstatement of an attorney.\nDefendant argues that he is entitled to an immediate appeal under Slade and cases from other jurisdictions because if plaintiffs slander and malicious prosecution claims are allowed to proceed to trial, defendant will in effect lose his immunity.\nSlade is distinguishable from the instant case. Slade involves sovereign immunity, which is a \u201c \u2018common law theory or defense established by [the] Court\u2019 to protect the sovereign or the State and its agents from suit.\u201d Slade, 110 N.C. App. at 426, 429 S.E.2d at 746 (citation omitted) (emphasis added). In contrast, the immunity claimed by defendant here is statutory in nature and is available to him if he satisfies all of the requirements of N.C. Gen. Stat. \u00a7 84-28.2. Thus, defendant would be immune from suit only if his communications to the State Bar were made without malice.\nThe trial court, in denying defendant\u2019s motion for summary judgment on plaintiff\u2019s slander and malicious prosecution claims, determined that plaintiff had presented sufficient evidence to go to the jury on the issue of whether defendant\u2019s statements to the State Bar were made with malice. Thus, on the record before us, we cannot conclude that defendant is entitled as a matter of law to immunity from suit under N.C. Gen. Stat. \u00a7 84-28.2. We therefore find that the trial court\u2019s denial of defendant\u2019s motion for summary judgment on plaintiff\u2019s slander and malicious prosecution claims did not deprive defendant of a substantial right which would be jeopardized absent an immediate appeal, and defendant\u2019s appeal must be dismissed.\nDismissed.\nJudges COZORT and JOHN concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Baley, Batey & Clontz, P.A., by Stanford K. Clontz, for plaintiff-appellee.", "Root & Root, P.L.L.C., by Allan P Root, for defendant-appellant." ], "corrections": "", "head_matter": "HERBERT A. WALLACE, Plaintiff-Appellee v. SCOTT E. JARVIS, d/b/a SCOTT E. JARVIS & ASSOCIATES, Defendant-Appellant\nNo. COA94-1099\n(Filed 18 July 1995)\nAppeal and Error \u00a7 89 (NCI4th)\u2014 statutory immunity claimed by defendant \u2014 right not jeopardized absent immediate appeal \u2014 appeal dismissed\nThe trial court\u2019s denial of defendant\u2019s motion for summary judgment on plaintiff\u2019s slander and malicious prosecution claims did not deprive defendant of a substantial right, the right to claim immunity under N.C.G.S. \u00a7 84-28.2, which would be jeopardized absent an immediate appeal, and defendant\u2019s interlocutory appeal is therefore dismissed.\nAm Jur 2d, Appellate Review \u00a7 120.\nAppeal by defendant from order entered 18 July 1994 by Judge Claude S. Sitton in Buncombe County Superior Court. Heard in the Court of Appeals 26 May 1995.\nBaley, Batey & Clontz, P.A., by Stanford K. Clontz, for plaintiff-appellee.\nRoot & Root, P.L.L.C., by Allan P Root, for defendant-appellant." }, "file_name": "0582-01", "first_page_order": 616, "last_page_order": 619 }