{ "id": 11143513, "name": "JAMES E. AYCOCK, Plaintiff v. MACK PADGETT, JOHN DOE, and JANE DOE, Defendants", "name_abbreviation": "Aycock v. Padgett", "decision_date": "1999-07-06", "docket_number": "No. COA98-782", "first_page": "164", "last_page": "168", "citations": [ { "type": "official", "cite": "134 N.C. App. 164" } ], "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": "110 So. 648", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 1262218 ], "year": 1926, "pin_cites": [ { "page": "650", "parenthetical": "stating that \"[i]t is common knowledge that there are many surprises at the result of elections by the people\"" } ], "opinion_index": 0, "case_paths": [ "/la/162/0453-01" ] }, { "cite": "77 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "81", "parenthetical": "holding that \"[s]pecial damages for the loss of a public office in an election for that office are too remote and speculative to be recoverable\"" } ], "opinion_index": 0 }, { "cite": "230 F.2d 319", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 71376 ], "year": 1956, "pin_cites": [ { "page": "322-23", "parenthetical": "noting that \"[t]here may be not less than a thousand factors which enter into the vagaries of an election\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/230/0319-01" ] }, { "cite": "374 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561393, 2561378, 2562195, 2562245 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0629-04", "/nc/323/0629-01", "/nc/323/0629-03", "/nc/323/0629-02" ] }, { "cite": "371 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524967 ], "year": 1988, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0171-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-280", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "parenthetical": "throwing rocks at railroad cars" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 163-275", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(4)" }, { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "52 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "888", "parenthetical": "Ervin, J., dissenting, quoting Burdick: Law of Crimes, section 87" } ], "opinion_index": 0 }, { "cite": "230 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629576 ], "year": 1949, "pin_cites": [ { "page": "283-84", "parenthetical": "Ervin, J., dissenting, quoting Burdick: Law of Crimes, section 87" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0272-01" ] }, { "cite": "396 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "619", "parenthetical": "quoting State v. Surles, 230 N.C. 272, 283-84, 52 S.E.2d 880, 888 (1949) (Ervin, J., dissenting, quoting Burdick: Law of Crimes, section 87)" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526696 ], "year": 1990, "pin_cites": [ { "page": "292", "parenthetical": "quoting State v. Surles, 230 N.C. 272, 283-84, 52 S.E.2d 880, 888 (1949) (Ervin, J., dissenting, quoting Burdick: Law of Crimes, section 87)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0286-01" ] }, { "cite": "395 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495140, 2494919, 2493403, 2493532, 2495199 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0426-03", "/nc/327/0426-01", "/nc/327/0426-04", "/nc/327/0426-05", "/nc/327/0426-02" ] }, { "cite": "393 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522144 ], "year": 1990, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0255-01" ] }, { "cite": "456 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790243, 790151, 790219, 790263, 790076 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0115-05", "/nc/340/0115-01", "/nc/340/0115-04", "/nc/340/0115-03", "/nc/340/0115-02" ] }, { "cite": "450 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "756" }, { "page": "756" }, { "page": "756", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525119 ], "year": 1994, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0274-01" ] }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] } ], "analysis": { "cardinality": 668, "char_count": 11606, "ocr_confidence": 0.757, "pagerank": { "raw": 8.46536186830365e-08, "percentile": 0.48528215351551385 }, "sha256": "52b32e81308fcac571449132cb586438a925ac027362590cac37167196afbae1", "simhash": "1:813b7521f62f2707", "word_count": 1939 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HORTON concur." ], "parties": [ "JAMES E. AYCOCK, Plaintiff v. MACK PADGETT, JOHN DOE, and JANE DOE, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiff filed a complaint on 10 February 1998 in response to allegedly defamatory comments made by defendant Padgett (\u201cPadgett\u201d) at a public meeting of the Black Mountain Board of Aldermen (\u201cthe Board\u201d) on or about 13 October 1997. Defendants John Doe and Jane Doe were named as conspirators whose identities were to be revealed through discovery. Plaintiff was unable to complete discovery because on 20 May 1998, the trial court granted Padgett\u2019s motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.\nThe factual background of this case is derived from plaintiffs complaint, which must be taken as true at this stage in the proceedings. See, e.g., Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). Plaintiff was one of twelve people seeking election to one of five seats on the Board in 1997. To run for this office, plaintiff had to swear when he filed for election in July of 1997 that he was a resident of Black Mountain.\nPlaintiff contends that Padgett, knowing that a reporter from The Black Mountain News would be present at the 13 October 1997 meeting of the Board (\u201cthe meeting\u201d), placed his name on the meeting\u2019s agenda for the published purpose of speaking on sewer lines. His actual purpose, as alleged in the complaint, was to defame plaintiff in public and the press and thereby damage plaintiff\u2019s chances of winning the election.\nPlaintiff claims Padgett made the following statements at the meeting: \u201cI know that [plaintiff] was not living in town when he applied to run for the town board\u201d; \u201cA lot of things [plaintiff] said in the paper when he was editor and owner hurt a lot of people running for the board. He said that in his opinion a particular person should not be elected\u201d; and \u201cI feel like [plaintiff] was not living in town at that particular time, when he was running.\u201d According to plaintiff, the Black Mountain News published a three-column article on 16 October 1997 entitled \u201cMan alleges filing violations,\u201d including a photograph of plaintiff and printing at least one of Padgett\u2019s statements from the meeting. On 4 November 1997, plaintiff finished sixth in the race for five seats on the Board. He brought this suit the following February, making three defamation claims, one claim for unfair trade practices, and one claim for punitive damages. From the dismissal of his suit, plaintiff appeals.\nPlaintiff first argues that the trial court erred in dismissing his three defamation claims. There are two separate torts encompassed by the term \u201cdefamation\u201d: libel and slander. Generally, \u201clibel is written while slander is oral.\u201d Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. review denied, 340 N.C. 115, 456 S.E.2d 318 (1995). Plaintiffs complaint refers to Padgett\u2019s remarks as libel, and he argues on appeal that the tort was libel because \u201c[although defendant\u2019s words were oral, he intended to have them published in the Black Mountain News.\u201d Without conceding defamation, Padgett states in his brief that because plaintiff alleged that Padgett\u2019s communications were oral, they must be analyzed as slander. Our case law addresses this dispute as follows: \u201c[W]hen defamatory words are spoken with the intent that the words be reduced to writing, and the words are in fact written, the publication is both slander and libel.\u201d Id. at 278, 450 S.E.2d at 756 (quoting Clark v. Brown, 99 N.C. App. 255, 261, 393 S.E.2d 134, 137, disc. review denied, 327 N.C. 426, 395 S.E.2d 675 (1990)). However, since plaintiff\u2019s complaint and appellate arguments are based entirely on libel, we address only libel in our opinion.\nThis Court has defined libel per se as\na publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person\u2019s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.\nId. at 277, 450 S.E,2d at 756 (emphasis added). Clearly, Padgett\u2019s comments did not address infectious diseases. They did not impeach plaintiff in his trade or profession because he was not a professional politician, was no longer with the Black Mountain News, and was not paid to reside in Black Mountain. They did not subject plaintiff \u201cto ridicule, contempt or disgrace\u201d within the' traditional meaning of those terms, either. There is a question, though, as to whether Padgett accused plaintiff of an infamous crime.\n\u201cAt common law,... an infamous crime is one whose commission brings infamy upon a convicted person, rendering him unfit and incompetent to testify as a witness, such crimes being treason, felony, and crimen falsi.\" State v. Clemmons, 100 N.C. App. 286, 292, 396 S.E.2d 616, 619 (1990) (quoting State v. Surles, 230 N.C. 272, 283-84, 52 S.E.2d 880, 888 (1949) (Ervin, J., dissenting, quoting Burdick: Law of Crimes, section 87)). To say that a person was not a resident of the town in which he is running for office at the time he filed for election is to accuse him of a felony. According to our statutes, it is a Class I felony \u201c[f]or any person knowingly to swear falsely with respect to any matter pertaining to any primary or election.\u201d N.C. Gen. Stat. \u00a7 163-275(4) (1995); see also N.C. Gen. Stat. \u00a7 163-275(1) (1995).\nRegardless of whether this particular felony rises to the level of an infamous crime, there would seem to be a need for explanatory circumstances for the listener or reader here to know that plaintiff had committed an infamous crime. Any accusation of a crime was made implicitly by Padgett, and it cannot be seriously contended that this particular felony carries with it the infamy accorded to those such as murder and treason. While we need not determine whether there are particular Class I felonies which are also infamous crimes, it is worth noting that there are many Class I felonies of which citizens of this state could be accused that would probably require further explanation before becoming libelous. See, e.g., N.C. Gen. Stat. \u00a7\u00a7 14-280 (1993) (throwing rocks at railroad cars); 14-309.14 (Cum. Supp. 1998) (offering a prize of fifty dollars ($50.00) or greater in a beach bingo game); 14-401.11(a)(1) (1993) (distributing Halloween candy which might cause a person mild physical discomfort without any lasting effect); and 113-209 (1997) (taking polluted shellfish at night). Plaintiffs complaint did not make out a valid case of libel per se, and the trial court properly dismissed it on that ground.\nIn his second claim for relief, plaintiff makes the alternative argument that Padgett\u2019s comments were \u201csusceptible of two interpretations[,] one of which was defamatory and the other not.\u201d We disagree. As noted above, we find that the statements as originally spoken, with no further explanation, are not defamatory. Any interpretation of these comments as they were given does not rise to the level of an actionable defamation claim.\nDefendant\u2019s third claim for relief is the alternative argument that \u201cthe publications were not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances became libelous, [causing] plaintiff general and special damages.\u201d This is, in essence, an argument that the comments were actionable per quod. See, e.g., U v. Duke University, 91 N.C. App. 171, 181, 371 S.E.2d 701, 708, disc. review denied, 323 N.C. 629, 374 S.E.2d 590 (1988). The damage plaintiff claims to have suffered, as required to recover for libel per quod, is the loss of a seat on the Board which in turn damaged \u201chis opportunity for employment\u201d and resulted in a \u201closs of income and benefits derived therefrom.\u201d\nThis is, in essence, a suit to recover damages for a lost election. We do not consider it the place of this Court to engage in a post-election analysis of the decisions made by the voters of Black Mountain in this or any other election. Although this appears to be the first time this question has been raised in this manner in North Carolina, other jurisdictions have similarly concluded that the notion that the loss of an election constitutes special damages for which a court may grant relief is far too speculative and uncertain to entertain. See, e.g., Southwestern Publishing Co. v. Horsey, 230 F.2d 319, 322-23 (9th Cir. 1956) (noting that \u201c[t]here may be not less than a thousand factors which enter into the vagaries of an election\u201d); Beverly v. Observer Pub. Co., 77 S.E.2d 80, 81 (Ga. App. 1953) (holding that \u201c[s]pecial damages for the loss of a public office in an election for that office are too remote and speculative to be recoverable\u201d); Otero v. Ewing, 110 So. 648, 650 (La. 1926) (stating that \u201c[i]t is common knowledge that there are many surprises at the result of elections by the people\u201d); see also 50 Am. Jur. 2d Libel and Slander \u00a7 234 (\u201cA plaintiff seeking to show defamation must show more than the fact that a misrepresentation caused the candidate to lose votes; a plaintiff must show that the misrepresentation was defamatory on its face.\u201d). In light of the facts and circumstances of this case, plaintiff was not entitled to relief on any of his three defamation claims. The dismissal of these claims is affirmed.\nBecause we hold that Padgett\u2019s statements did not constitute actionable defamation, it follows that plaintiffs fourth and fifth claims for relief, unfair trade practices and punitive damages based on the alleged defamation, are without legal foundation. As such, we need not address plaintiffs two remaining arguments on appeal regarding the trial court\u2019s decision to dismiss these claims.\nPlaintiff\u2019s complaint failed to state a claim upon which relief can be granted. Defendant\u2019s motion to dismiss the complaint was properly granted. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990).\nAffirmed.\nJudges GREENE and HORTON concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Frank B. Aycock, III, for plaintiff-appellant.", "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Michelle Rippon and Stephen B. Williamson, for defendant-appellee Padgett." ], "corrections": "", "head_matter": "JAMES E. AYCOCK, Plaintiff v. MACK PADGETT, JOHN DOE, and JANE DOE, Defendants\nNo. COA98-782\n(Filed 6 July 1999)\n1. Libel and Slander\u2014 libel per se \u2014 infamous crime \u2014 failure to state a claim\nThe trial court did not err by dismissing a defamation action for failure to state a claim upon which relief could be granted where plaintiff alleged statements by defendant that plaintiff was not a resident of the town in which he was running for office, a felony, but there is a need for explanatory circumstances for the listener or reader to know that plaintiff had committed an infamous crime. Any interpretation of the comments as given does not rise to the level of an actionable defamation claim.\n2. Libel and Slander\u2014 libel per quod \u2014 town board candidate \u2014 not resident in town \u2014 failure to state a claim\nThe trial court correctly dismissed a defamation action for failure to state a claim upon which relief could be granted where plaintiff alleged statements by defendant that plaintiff was not a resident of the town in which he was running for office. The damage plaintiff claims to have suffered is the loss of a seat on the town board; in essence, a suit to recover damages for a lost election. It is not the place of the Court of Appeals to engage in a post-election analysis of the decision made by the voters.\nAppeal by plaintiff from order entered 20 May 1998 by Judge Claude S. Sitton in Buncombe County Superior Court. Heard in the Court of Appeals 23 February 1999.\nFrank B. Aycock, III, for plaintiff-appellant.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Michelle Rippon and Stephen B. Williamson, for defendant-appellee Padgett." }, "file_name": "0164-01", "first_page_order": 196, "last_page_order": 200 }