{ "id": 9251223, "name": "PAMELA PRIEST and BETTY LOU SKINNER, Plaintiffs v. THOMAS SOBECK and MAKE-UP ARTISTS AND HAIR STYLISTS LOCAL 798, OF THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOTION PICTURE OPERATORS OF THE UNITED STATES AND CANADA, Defendants", "name_abbreviation": "Priest v. Sobeck", "decision_date": "2002-11-05", "docket_number": "No. COA01-1476", "first_page": "662", "last_page": "671", "citations": [ { "type": "official", "cite": "153 N.C. App. 662" } ], "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": "383 U.S. 53", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167192 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/383/0053-01" ] }, { "cite": "418 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172714 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "272-73" }, { "page": "2775" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/418/0264-01" ] }, { "cite": "431 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "834" }, { "page": "834" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520465 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0001-01" ] }, { "cite": "504 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 1998, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "240 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "406 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "850" } ], "opinion_index": 0 }, { "cite": "329 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557153 ], "year": 1991, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0488-01" ] }, { "cite": "431 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521434 ], "year": 1993, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0244-01" ] }, { "cite": "507 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "60", "parenthetical": "quoting Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993)" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198692 ], "year": 1998, "pin_cites": [ { "page": "247", "parenthetical": "quoting Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0242-01" ] }, { "cite": "251 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "447", "parenthetical": "\"That the trial court declared it to be a final, declaratory judgment does not make it so.\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "year": 1979, "pin_cites": [ { "page": "491", "parenthetical": "\"That the trial court declared it to be a final, declaratory judgment does not make it so.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "year": 1983, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0419-01" ] }, { "cite": "500 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "348 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659725 ], "year": 1998, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0583-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "579", "parenthetical": "quoting DKH Corp. v. Rankin-Patterson Oil Comp., Inc., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)" }, { "page": "579" }, { "page": "580", "parenthetical": "quoting Cook v. Bankers Life & Cas. Co., 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991); Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990); Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "161-62", "parenthetical": "quoting DKH Corp. v. Rankin-Patterson Oil Comp., Inc., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)" }, { "page": "162" }, { "page": "162-63", "parenthetical": "quoting Cook v. Bankers Life & Cas. Co., 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991); Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990); Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "677" }, { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "23" }, { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "130 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470210 ], "year": 1998, "pin_cites": [ { "page": "719", "parenthetical": "order implicating First Amendment rights affects a substantial right" } ], "opinion_index": 1, "case_paths": [ "/nc-app/130/0711-01" ] }, { "cite": "334 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "406", "parenthetical": "the facts alleged in a complaint determine the validity of a claim, not the legal theories asserted" } ], "opinion_index": 1 }, { "cite": "77 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520550 ], "year": 1985, "pin_cites": [ { "page": "86", "parenthetical": "the facts alleged in a complaint determine the validity of a claim, not the legal theories asserted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/77/0083-01" ] }, { "cite": "504 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "807", "parenthetical": "order implicating First Amendment rights affects a substantial right" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 875, "char_count": 19699, "ocr_confidence": 0.765, "pagerank": { "raw": 3.108395440849701e-07, "percentile": 0.8598064983711405 }, "sha256": "153f433434f3550bcfe50e540da7ca5e15f01870f00f50ffb29ffa8782a2c1fc", "simhash": "1:1a69047d0dae36f6", "word_count": 3187 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BIGGS concurs.", "Judge GREENE dissents." ], "parties": [ "PAMELA PRIEST and BETTY LOU SKINNER, Plaintiffs v. THOMAS SOBECK and MAKE-UP ARTISTS AND HAIR STYLISTS LOCAL 798, OF THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOTION PICTURE OPERATORS OF THE UNITED STATES AND CANADA, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nThis appeal concerns a defamation action brought by labor union members. Pamela Priest and Betty Lou Skinner against their labor union and its representative. They appeal from the trial court\u2019s grant of partial summary judgment in favor of defendants; likewise, defendants appeal from that part of the summary judgment that was not granted in their favor. On review, notwithstanding the trial court\u2019s certification of this matter for immediate review under Rule 54(b), we conclude that the partial grant of summary judgment neither constitutes a final judgment nor affects a substantial right. Accordingly, we dismiss this appeal as interlocutory.\nThe underlying facts to this appeal show that defendant Make-up Artists and Hair Stylists Local 798, of the International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, hereinafter \u201cLocal 798,\u201d is the collective bargaining representative of most make-up artists and hairstylists in the film industry throughout the eastern half of the United States. Defendant Thomas Sobeck is the District Field Representative for Local 798; Priest and Skinner have been members of Local 798 for several years.\nIn June 1999, Priest was hired as head of the hair department on the CBS film \u201cShake, Rattle & Roll,\u201d a production governed by a collective bargaining agreement with Local 798. Priest then hired Skinner as \u201cthird hair\u201d and filled all of the positions in her department with union members. When Priest arrived in Charlotte, North Carolina, to begin work on the production, she learned that a nonunion worker had been hired as \u201csecond\u201d in the make-up department. Priest later learned that Kelly Gore Jefferson, head of the make-up department, was dissatisfied with the selection of the non-union worker. Priest advised her to speak with the union production manager about her concerns.\nMeanwhile, Sobeck, the union district representative, had been receiving complaints from union members about non-union members working on the production. Sobeck called Priest to find out what she knew about the hiring of non-union make-up employees. Priest asked Sobeck if they could speak at a later time since she was fatigued from working that day. In response, Sobeck faxed Priest and Skinner a letter informing them they could not be forced to work with or hire nonunion workers. The next day Priest approached the unit production manager and told him that he needed to call Sobeck about the hiring of non-union workers. According to Priest, the unit production manager (in a previous conversation), informed her that Sobeck was aware of the situation and that the non-union worker had been hired at the request of the film\u2019s producer. The unit production manager called Sobeck and after the phone conversation, told Priest the matter had been resolved.\nHowever, in the next union newsletter, Sobeck stated the following:\nI received a call from one of our members in the Carolina\u2019s. She was asking me, why as a paid up dues paying member of our local, she was not hired, but passed over for a non-member make-up person.\nI was aware of the problem and sent faxes to both Heads of the Department, Pam Priest and Kelly Gore Jefferson, stating that the Production cannot force them to hire non-members. I have not heard one word from either Head of Department. It is time you, the Membership file complaints and get rid of these not thinking members.\nSo there it is. Now it\u2019s up to you, the Membership, to advise this Local how you all would like to proceed on these issues when they arise.\nKelly Gore Jefferson did in fact hire non-union make-up over her own sisters and brothers and gave permission to the person to hire additional make-up and that the other Head of the Hair Department stood by, along with two other Local 798 Members, Roy Bryson and Betty Lou Skinner, on the production \u201cShake Rattle & Roll\u201d being shot in Charlotte, North Carolina.\nO.K. now all of you Members who have been complaining about this kind of problem can put a stop to it. Write your Business Agent and advise him how you want him to deal with this problem.\nI have given you Members the ammunition now it\u2019s up to you to use it.\nAs a result of the newsletter comments and its dissemination to union members, Priest and Skinner brought this action alleging libel per se, class two libel and libel per quod. In granting partial summary judgment in favor of the defendants, the trial court stated:\nThere are no genuine issues of material fact with respect to any of the claims alleged except as to whether the defendant Sobeck with malice published in the August newsletter and subsequent newsletters that plaintiffs stood by when Henrita Jones, not a member of Local 798, was hired in mid to late June 1999 when such hiring was actually initially approved by union representative Vincent Callaghan and when defendant Sobeck himself later allegedly approved, explicitly or implicitly, the .hiring of Ms. Jones. . . . Except with respect to the hiring of Ms. Jones and defendant Sobeck\u2019s assertion that plaintiffs stood by while Ms. Jones was hired, when he allegedly knew that he had himself approved the hire, no malice has been shown on the part of the defendants as to any other factual scenario.\nThus, the court granted partial summary judgment as to any and all claims \u201cexcept any claim based upon the limited assertion that defendant Sobeck maliciously published that it was plaintiffs who stood by when Ms. Jones was hired when he knew he had approved the hire himself.\u201d Thereafter, the trial court, exercising its discretion under N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b), determined that there was no just reason for delay of appellate review of this judgment which determined less than all of the claims of the plaintiffs.\nPlaintiffs\u2019 Interlocutory Appeal\nIt is well settled that a \u201cgrant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\u201d Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). However, there are two situations in which one may seek appellate review of an interlocutory order. First, in claims involving multiple claims or multiple parties, if a final judgment is entered as to one, but not all, of the claims or parties and the trial judge certifies in the judgment that \u201cthere is no just reason for delay,\u201d such judgment is then subject to judicial review. N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2001). Second, if delaying the appeal would prejudice a substantial right, then there may be judicial review. Liggett, 113 N.C. App. at 23-24, 437 S.E.2d at 677.\nIn general, a trial court\u2019s certification of an order for immediate appeal under Rule 54(b) permits the parties to prosecute an interlocutory appeal. Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999) (quoting DKH Corp. v. Rankin-Patterson Oil Comp., Inc., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)). \u201cNonetheless, the trial court may not, by certification, render its decree immediately appealable if \u2018[it] is not a final judgment.\u2019 \u201d Sharpe, 351 N.C. at 162, 522 S.E.2d at 579; Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983); see Tridyn Indus. v. American Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) (\u201cThat the trial court declared it to be a final, declaratory judgment does not make it so.\u201d).\nIn this case, plaintiffs presented three causes of action, libel per se, class 2 libel, and libel per quod based on the essence of one statement in the union newsletter: Defendants\u2019 statement that \u201cPlaintiffs Priest and Skinner \u2018stood by\u2019 while \u2018Jefferson . . . hire[d] non-union make-up\u2019 on the Production is false.\u201d\nIn granting partial summary judgment, the trial judge dismissed all claims \u201cexcept any claim based upon the limited assertion that defendant Sobeck maliciously published that it was plaintiffs who stood by when Ms. Jones was hired when he knew he had approved the hire himself.\u201d Thus, the trial judge\u2019s order of partial summary judgment essentially left in tact the plaintiffs\u2019 defamation allegations based on the statement that they \u201cstood by\u201d while the non-union member was hired. Accordingly, there has not been a final judgment and the plaintiffs\u2019 appeal must be dismissed as interlocutory.\nDefendants\u2019 Interlocutory Appeal\nDefendants appeal the trial court\u2019s partial denial of summary judgment. It is well settled that \u201c[d]enial of a motion for summary judgment is not a final judgment and is generally (unless affecting a \u201csubstantial right\u201d) not immediately appealable, even if the trial court has attempted to certify it for appeal under Rule 54(b).\u201d First Atlantic v. Dunlea Realty, 131 N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998) (quoting Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993)). In this case, the trial court\u2019s denial of summary judgment was not a final judgment. Since this appeal arises from a non-final judgment, we hold that the trial court\u2019s certification under Rule 54(b) does not render it ready for appeal.\nNonetheless, as an alternative basis for their appeal, defendants\u2019 argue the partial denial of summary judgment affects their substantial right to free speech.\nIt is well settled that an interlocutory order affects a substantial right if the order \u201cdeprives the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered.\u201d \u201cEssentially a two-part test has developed \u2014 the right itself must be substantial and the deprivation of that substantial right must potentially work injury ... if not corrected before appeal from final judgment.\u201d . . . Nevertheless, \u201cit is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which the appeal was sought was entered.\u201d\nSharpe v. Worland, 351 N.C. 159, 162-63, 522 S.E.2d 577, 580 (1999) (quoting Cook v. Bankers Life & Cas. Co., 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991); Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990); Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)).\nDefendant cites two North Carolina cases, Sherrill v. Amerada Hess Corp., 130 N.C. App. 714, 504 S.E.2d 802 (1998) and Kaplan v. Prolife Action League, 111 N.C. App. 1, 431 S.E.2d 828, 834 (1993), in which this Court held that an order affecting First Amendment freedoms affects a substantial right sufficient to permit an immediate appeal from an interlocutory order. Both of these cases are distinguishable from the case sub judice.\nIn Sherrill, this Court stated that a trial court\u2019s gag order prohibiting the parties and attorneys from communicating with any person or entity not a party to the case, operated to forbid expression before it took place and constituted a prior restraint. 130 N.C. App. 714, 720, 504 S.E.2d 802, 808 (1998). In Kaplan, we reviewed a trial court\u2019s grant of a preliminary injunction, effective only during the trial\u2019s duration, restraining the manner and place in which defendants could picket plaintiff\u2019s home. This Court stated that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Kaplan v. Prolife Action League, 111 N.C. App. 1, 15, 431 S.E.2d 828, 834 (1993). Both cases involved court-imposed restrictions upon the exercise of First Amendment rights prior to the resolution of the cases. These court-imposed restrictions constituted either a prior restraint or the loss of a First Amendment right for a short period of time. Thus, in Sherrill and Kaplan, we found that substantial rights were affected because of the court-imposed restrictions prohibiting the parties from exercising First Amendment rights during the pendency of the trial.\nIn this case, the trial court did not impose any preliminary restrictions upon the parties. Any change in defendants\u2019 behavior because of this case is self-imposed. Thus, we reject defendant\u2019s argument based on our holdings in Sherrill and Kaplan.\nDefendants also argue that in cases where the New York Times v. Sullivan rule applies, an interlocutory appeal from an order denying summary judgment is necessary to ensure that a defendant\u2019s right to free speech is adequately protected. Defendants further contend that because \u201cthe U.S. Supreme Court has long-recognized the primary importance of \u2018uninhibited, robust and wide-open debate\u2019 in labor disputes,\u201d interlocutory review in cases involving labor disputes and the exercise of First Amendment rights is justified in every case. We disagree.\nIn Old Dominion Branch No. 496, Nat\u2019l Assoc. of Letter Carriers, AFL-CIO v. Austin, the United States Supreme Court stated that federal labor policy favors uninhibited, robust and wide-open debate in labor disputes. 418 U.S. 264, 272-73, 94 S.Ct. 2770, 2775 (1974). However, the Court in analyzing its prior holding in New York Times v. Sullivan, limited the application of this statement to a consideration of the federal labor policy, not as a basis for finding a substantial right in libel actions involving a labor union. Thus, the Court stated:\n[The] freewheeling use of the written and spoken word, we found, has been expressly fostered by Congress and approved by the NLRB. Thus, Mr. Justice Clark acknowledged that there was \u2018a congressional intent to encourage free debate on issues dividing labor and management,\u2019 and noted that \u2018the Board has given frequent consideration to the type of statements circulated during labor controversies, and ... it has allowed wide latitude to competing parties.\u2019\nThe Court therefore found it necessary to impose substantive restrictions on the state libel laws to be applied to defamatory statements in labor disputes in order to prevent \u2018unwarranted intrusion upon free discussion envisioned by the Act.\u2019 The Court looked to the NLRB\u2019s decisions, and found that \u2018although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false. The Court therefore found it appropriate to adopt by analogy the standards of New York Times Co. v. Sullivan.\nId. (citations omitted).\nFollowing the holding in Old Dominion, we conclude that under the facts of this case, the defendants have failed to show that the trial court placed any First Amendment restrictions or prohibitions upon them that affect a substantial right requiring a review of their interlocutory appeal. Accordingly, we decline to find a substantial right of the defendants has been impinged.\nDismissed.\nJudge BIGGS concurs.\nJudge GREENE dissents.\n. Defendants allude to Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53 (1966), where the Court adopted the New York Times v. Sullivan standard for libel cases arising out of labor disputes, requiring plaintiffs to establish that defamatory statements were made with actual malice.", "type": "majority", "author": "WYNN, Judge." }, { "text": "GREENE, Judge,\ndissenting.\nI disagree with the majority\u2019s conclusions that: (I) there was no final judgment on any of plaintiffs\u2019 claims; and (II) the partial denial of defendants\u2019 summary judgment motion did not affect their First Amendment rights.\nI\nA trial court\u2019s certification of an interlocutory order for appeal is proper if the order is a final judgment as to one or more claims and there is no just reason for delay. See N.C.G.S. \u00a7 1A-1, Rule 54(b) (2001). A claim is defined as a \u201ccause of action.\u201d Black\u2019s Law Dictionary 247 (6th ed. 1990) [hereinafter Black\u2019s]. A cause of action is defined as \u201c[t]he fact or facts which give a person a right to judicial redress or relief against another.\u201d Black\u2019s at 221; see also Brown v. Glade Valley Sch. Inc., 77 N.C. App. 83, 86, 334 S.E.2d 404, 406 (1985) (the facts alleged in a complaint determine the validity of a claim, not the legal theories asserted).\nIn this case, plaintiffs alleged defamation under three different legal theories based on a series of statements published in two union newsletters. While the trial court did not render final judgment on any of plaintiffs\u2019 legal theories, the trial court did render summary judgment on all of plaintiffs\u2019 factual claims, except for those \u201cbased on the limited assertion that defendant. . . maliciously published that it was plaintiffs who stood by when Ms. Jones was hired, when [defendant] knew he had approved the hire himself.\u201d Thus, there was a final judgment as to one or more of plaintiffs\u2019 claims, and the trial court properly certified the interlocutory order for appeal under Rule 54(b). Accordingly, this Court should address the question raised in plaintiffs\u2019 appeal of whether the New York Times v. Sullivan \u201cactual malice\u201d standard applies to the facts of this case.\nII\nI also disagree with the majority\u2019s conclusion that partial denial of defendants\u2019 summary judgment motion did not affect a substantial right. Defendants contend the trial court misapplied the New York Times v. Sullivan \u201cactual malice\u201d standard, infringing on their First Amendment right to free speech. Because misapplication of the actual malice standard, detrimental to defendants, would have a chilling effect on their rights of free speech, the trial court\u2019s order does affect a substantial right. See Sherrill v. Amerada Hess Corp., 130 N.C. App. 711, 719, 504 S.E.2d 802, 807 (1998) (order implicating First Amendment rights affects a substantial right). Accordingly, this Court should also address the merits of defendants\u2019 appeal.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Barringer, Barringer, Stephenson & Schiller by David G. Schiller and Marvin Schiller for plaintiffs.", "Smith, James, Rowlett & Cohen by Seth R. Cohen and Stanford, Fagan & Giolito, L.L.C., by Robert S. Giolito and Jeffrey D. Sodko for defendants." ], "corrections": "", "head_matter": "PAMELA PRIEST and BETTY LOU SKINNER, Plaintiffs v. THOMAS SOBECK and MAKE-UP ARTISTS AND HAIR STYLISTS LOCAL 798, OF THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOTION PICTURE OPERATORS OF THE UNITED STATES AND CANADA, Defendants\nNo. COA01-1476\n(Filed 5 November 2002)\n1. Appeal and Error\u2014 appealability \u2014 grant of partial summary judgment \u2014 interlocutory order \u2014 no final judgment\nPlaintiffs\u2019 appeal in a defamation action from the trial court\u2019s grant of partial summary judgment in favor of defendants is dismissed as ah appeal from an interlocutory order even though the trial court certified this case for immediate review under N.C.G.S. \u00a7 1A-1, Rule 54(b), because there has not been a final judgment when the trial court\u2019s order essentially left intact plaintiffs\u2019 defamation allegations based on the statement that they stood by while a non-union member was hired.\n2. Appeal and Error\u2014 appealability \u2014 denial of partial summary judgment \u2014 interlocutory order \u2014 no substantial right\nDefendants\u2019 appeal in a defamation action from the trial court\u2019s denial of partial summary judgment is dismissed as an appeal from an interlocutory order even though the trial court certified this case for immediate review under N.C.G.S. \u00a7 1A-1, Rule 54(b), because: (1) there was no final judgment; and (2) defendants have failed to show that the trial court placed any First Amendment restrictions or prohibitions upon them that affect a substantial right.\nJudge Greene dissenting.\nAppeals by plaintiffs and defendants from order granting partial summary judgment in favor of defendants entered 4 September 2001 by Judge Melzer A. Morgan, Jr., Superior Court, Moore County. Heard in the Court of Appeals 10 September 2002.\nBarringer, Barringer, Stephenson & Schiller by David G. Schiller and Marvin Schiller for plaintiffs.\nSmith, James, Rowlett & Cohen by Seth R. Cohen and Stanford, Fagan & Giolito, L.L.C., by Robert S. Giolito and Jeffrey D. Sodko for defendants." }, "file_name": "0662-01", "first_page_order": 692, "last_page_order": 701 }