{ "id": 4155979, "name": "THOMAS FRANKLIN CRAVEN, Plaintiff v. SEIU COPE, Defendant", "name_abbreviation": "Craven v. SEIU COPE", "decision_date": "2008-02-19", "docket_number": "No. COA07-925", "first_page": "814", "last_page": "820", "citations": [ { "type": "official", "cite": "188 N.C. App. 814" } ], "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": "634 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636658 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "590", "parenthetical": "citation omitted" }, { "page": "590", "parenthetical": "internal citations and quotations omitted" }, { "page": "590" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0586-01" ] }, { "cite": "358 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631460, 12631464, 12631499, 12631468, 12631471, 12631472, 12631474 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0040-01", "/se2d/599/0042-03", "/se2d/599/0907-01", "/se2d/599/0043-01", "/se2d/599/0045-01", "/se2d/599/0046-01", "/se2d/599/0048-02" ] }, { "cite": "379 U.S. 64", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11728748 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "75", "parenthetical": "internal citation and quotation omitted" }, { "page": "133", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/379/0064-01" ] }, { "cite": "376 U.S. 254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379234 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "270" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/us/376/0254-01" ] }, { "cite": "426 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "432", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525158 ], "year": 1993, "pin_cites": [ { "page": "274", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0271-01" ] }, { "cite": "654 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "361 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741762, 3743978, 3746954, 3738481, 3742833, 3742683, 3743389 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0692-04", "/nc/361/0692-07", "/nc/361/0692-02", "/nc/361/0692-05", "/nc/361/0692-06", "/nc/361/0692-01", "/nc/361/0692-03" ] }, { "cite": "179 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8237574 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "538", "parenthetical": "citation omitted" }, { "page": "539-40" }, { "page": "539" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0533-01" ] }, { "cite": "157 L. Ed. 2d 310", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "540 U.S. 965", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8976965, 8976998, 8977035, 8977165, 8977137, 8977109, 8977016, 8977082, 8977051, 8976990 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0965-01", "/us/540/0965-03", "/us/540/0965-05", "/us/540/0965-10", "/us/540/0965-09", "/us/540/0965-08", "/us/540/0965-04", "/us/540/0965-07", "/us/540/0965-06", "/us/540/0965-02" ] }, { "cite": "580 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491812, 491621, 491818, 491754, 491882, 491414, 491740 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0163-06", "/nc/357/0163-03", "/nc/357/0163-07", "/nc/357/0163-05", "/nc/357/0163-04", "/nc/357/0163-01", "/nc/357/0163-02" ] }, { "cite": "568 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2002, "pin_cites": [ { "page": "897", "parenthetical": "citation omitted" }, { "page": "898" }, { "page": "901", "parenthetical": "citation omitted" }, { "page": "899" }, { "page": "901-02", "parenthetical": "internal citations and quotation omitted" }, { "page": "902" }, { "page": "902" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248584 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "29", "parenthetical": "citation omitted" }, { "page": "35" }, { "page": "35-36" }, { "page": "35-36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0025-01" ] }, { "cite": "597 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491579 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0567-01" ] }, { "cite": "580 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. 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Stat. \u00a7 163-274", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 708, "char_count": 14637, "ocr_confidence": 0.73, "pagerank": { "raw": 1.1480453952056186e-07, "percentile": 0.5806840476027753 }, "sha256": "39afe45fb6703957eb2258c0921b7bf6be9c8df225bef150e0228c3bf6a047fa", "simhash": "1:2b8a54390c6b94ab", "word_count": 2289 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and STROUD concur." ], "parties": [ "THOMAS FRANKLIN CRAVEN, Plaintiff v. SEIU COPE, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nThomas Franklin Craven (\u201cplaintiff\u2019) appeals from judgment entered, which granted SEIU COPE\u2019s (\u201cdefendant\u201d) motion to dismiss plaintiff\u2019s claims pursuant to North Carolina Rule of Civil Procedure 12(b)(6). We affirm.\nI. Background\nOn 24 October 2006, plaintiff filed a complaint and alleged claims against defendant of: (1) defamation per se; (2) unfair and deceptive trade practices; and (3) false and fraudulent political advertisement pursuant to N.C. Gen. Stat. \u00a7 163-274. Plaintiff alleged defendant had published a series of defamatory statements through the United States mail prior to the 2005 Raleigh City Council election, which: (1) \u201cdefamed and libeled [plaintiff] in his profession and means of livelihood!]\u201d as a professional engineer; (2) \u201cwere done in the course and scope of commercial activity in the State of North Carolinaf;]\u201d (3) \u201cwere made in bad faith, were unethical, were unfair to [plaintiff], were deceptive to the public and were intended to harm [plaintiff] in his personal and professional activities[;]\u201d and (4) had \u201cdisparaged [plaintiffs] professional reputation, and show that [plaintiff] engages in criminal conduct and such false and fraudulent political advertisements violate N.C. Gen. Stat. \u00a7 163-274.\u201d\nOn 30 January 2007, defendant moved to dismiss all claims pursuant to North Carolina Rule of Civil Procedure 12(b)(6). Defendant\u2019s motion to dismiss asserted the statements: (1) were not defamatory; (2) were \u201cpolitical speech constitutionally protected by the First Amendment and Article I, Section 14 of the Constitution of North Carolina[;]\u201d (3) were made in the context of a political campaign; (4) did not relate to plaintiff\u2019s profession; and (5) did not arise in or affect commerce. Defendant\u2019s motion to dismiss also stated that \u201c[p]laintiff may not assert an alleged violation of N.C. Gen. Stat. \u00a7 163-274 as a civil claim in this litigation.\u201d Defendant\u2019s motion to dismiss requested the trial court: (1) dismiss plaintiff\u2019s claims; (2) tax the costs of the action against plaintiff; (3) award defendant attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 75-16.1(2) and N.C. Gen. Stat. \u00a7 6-21.5; and (4) award such other relief as the trial court deemed to be just and proper.\nOn 18 April 2007, the trial court filed its order and judgment which: (1) concluded that plaintiff\u2019s complaint failed to state a claim upon which relief can be granted; (2) allowed defendant\u2019s motion to dismiss plaintiff\u2019s complaint pursuant to North Carolina Rule of Civil Procedure 12(b)(6); and (3) denied defendant\u2019s request for attorney\u2019s fees. Plaintiff appeals from only the dismissal of his defamation and unfair and deceptive trade practices claims.\nII. Issue\nPlaintiff argues the trial court erred when it granted defendant\u2019s motion to dismiss plaintiff\u2019s claims of defamation and unfair and deceptive trade practices pursuant to North Carolina Rule of Civil Procedure 12(b)(6).\nIII. Standard of Review\nOn a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.\nHunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 480, 593 S.E.2d 595, 598 (internal quotations omitted) (emphasis supplied), disc. rev. denied, 358 N.C. 543, 599 S.E.2d 49 (2004). \u201cThis Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff\u2019d, 357 N.C. 567, 597 S.E.2d 673 (2003).\nIV. Motion to Dismiss Pursuant to Rule 12(4>)(6\u2019)\nPlaintiff argues the trial court erred when it granted defendant\u2019s motion to dismiss plaintiff\u2019s claims of defamation and unfair and deceptive trade practices, pursuant to North Carolina Rule of Civil Procedure 12(b)(6), \u201cbecause the complaint states claims for relief upon which relief may be granted as a matter of law.\u201d We disagree.\nA. Defamation\n\u201cIn order to recover for defamation, a plaintiff must allege that the defendant caused injury to the plaintiff by making false, defamatory statements of or concerning the plaintiff, which were published to a third person.\u201d Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 897 (2002) (citation omitted), disc. rev. denied, 357 N.C. 163, 580 S.E.2d 361, cert. denied, 540 U.S. 965, 157 L. Ed. 2d 310 (2003). \u201c[T]he term defamation applies to the two distinct torts of libel and slander.\u201d Id. at 29, 568 S.E.2d at 898.\nNorth Carolina law recognizes three classes of libel: (1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous, which are termed libels per quod.\nDaniels v. Metro Magazine Holding Co., L.L.C., 179 N.C. App. 533, 538, 634 S.E.2d 586, 590 (2006) (citation omitted), disc. rev. denied, 361 N.C. 692, 654 S.E.2d 251 (2007). \u201cTo be actionable, a defamatory statement must be false and must be communicated to a person or persons other than the person defamed.\u201d Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993) (citation omitted).\nThere are, moreover, constitutional limits on the type of speech subject to a defamation action. If a statement cannot reasonably be interpreted as stating actual facts about an individual, it cannot be the subject of a defamation suit. Rhetorical hyperbole and expressions of opinion not asserting provable facts are protected speech. . . . Although someone cannot preface an otherwise defamatory statement with \u201cin my opinion\u201d and .claim immunity from liability, a pure expression of opinion is protected because it fails to assert actual fact. Rhetorical hyperbole, in contrast, might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously. . . .\nIn determining whether a statement can be reasonably interpreted as stating actual facts about an individual, courts look to the circumstances in which the statement is made. Specifically, we consider whether the language used is loose, figurative, or hyperbolic language, as well as the general tenor of the article.\nDaniels, 179 N.C. App. at 539-40, 634 S.E.2d at 590 (internal citations and quotations omitted). \u201c[Djebate on public issues should be uninhibited, robust, and wide-open, and ... it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.\u201d New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 701 (1964).\nIn Boyce & Isley, PLLC, this Court held that \u201c[t]he allegations ' in [the] plaintiffs\u2019 complaint sufficiently pled their claim of defamation by defendants to overcome a Rule 12(b)(6) motion to dismiss.\u201d 153 N.C. App. at 35, 568 S.E.2d at 901 (citation omitted). This Court stated:\nthe average viewer [of the defendant\u2019s political advertisement] was left solely with the following information about plaintiffs: that they (1) sued the State; (2) charged (and therefore received) $28,000 per hour to taxpayers to do so; (3) that this sum represented more than a policeman\u2019s annual salary; and (4) that a judge had pronounced that plaintiffs\u2019 behavior \u201cshocked the conscience.\u201d\nId. at 32, 568 S.E.2d at 899. This Court concluded the \u201c [defendants\u2019 statements directly maligned plaintiffs in their profession by accusing them of unscrupulous and avaricious billing practices.\u201d Id.\nHere, plaintiff\u2019s complaint alleged that a series of mailings defendant published were defamatory per se. The mailings stated: (1) if elected, plaintiff \u201cwould raise your taxes to pay for new development[;]\u201d and (2) \u201c[plaintiff] [is] against making development pay for itself.\u201d One mailing also showed a picture of a well-dressed, cigar-smoking \u201cdeveloper\u201d with plaintiff\u2019s and another candidate\u2019s names and photographs sticking out of the \u201cdeveloper\u2019s\u201d jacket pocket.\nThe statements and image contained in defendant\u2019s mailings are either matters of personal opinion or rhetorical hyperbole no reasonable reader would believe. Whether plaintiff would \u201craise . . . taxes\u201d to pay for new development or whether plaintiff is \u201cagainst making development pay for itself\u2019 are defendant\u2019s political opinion and campaign assertions, which are incapable of being actually or factually proven or disproven. The image of a well-dressed, cigar-smoking \u201cdeveloper\u201d with plaintiff\u2019s and another candidate\u2019s names and photographs hanging out of the \u201cdeveloper\u2019s\u201d jacket pocket is rhetorical hyperbole, which no reasonable reader would believe to be literally true. Any reasonable reader would liken defendant\u2019s assertions as similar to PT. Bamum\u2019s historical political humbug and not as \u201cstatements [which] directly maligned plaintiff[] in [his] profession by accusing [him] of unscrupulous and avaricious . . . practices.\u201d Id.\nDefendant asserts that because these statements arose during an election for public office, defendant is constitutionally shielded and allowed to make whatever assertions it desired, free from liability for defamation. We disagree.\nAt the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.\nGarrison v. Louisiana, 379 U.S. 64, 75, 13 L. Ed. 2d 125, 133 (1964) (internal citation and quotation omitted).\nDefendant\u2019s statements and assertions contained in the mailings do not support a claim of defamation per se. Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590. The trial court correctly dismissed plaintiff\u2019s defamation claim pursuant to North Carolina Rule of Civil Procedure 12(b)(6). This assignment of error is overruled.\nB. Unfair and Deceptive Trade Practices\nA claim [of unfair and deceptive trade practices] under section 75-1.1 of the North Carolina General Statutes requires proof of three elements: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, which (3) proximately caused actual injury to the claimant. A libel per se of a type impeaching a party in its business activities is an unfair or deceptive act in or affecting commerce in violation of [N.C. Gen. Stat.] \u00a7 75-1.1, which will justify an award of damages for injuries proximately caused. ... To recover, a plaintiff must have suffered actual injury as a proximate result of the deceptive statement or misrepresentation.\nBoyce & Isley, PLLC, 153 N.C. App. at 35-36, 568 S.E.2d at 901-02 (internal citations and quotation omitted).\nPlaintiff concedes that his claim of unfair and deceptive trade practices necessarily depends upon the validity of his alleged defamation per se claim. Id. We have held that the trial court properly dismissed plaintiff\u2019s defamation claim. In the absence of allegations of other tortious conduct, from which plaintiff \u201csuffered actual injury ....\u201d the trial court properly dismissed plaintiff\u2019s claim for unfair and deceptive trade practices. Id. at 36, 568 S.E.2d at 902. This assignment of error is overruled.\nV. Conclusion\nDefendant\u2019s political mailings about which plaintiff complains contain either: (1) expressions of pure opinion not capable of being proven or disproven or (2) rhetorical hyperbole which no reasonable reader would believe. The statements and assertions contained in these mailings do not support a claim of defamation. Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590. The trial court properly dismissed plaintiffs defamation claim.\nPlaintiff\u2019s claim for unfair and deceptive trade practices necessarily depends on the validity of his defamation claim. Boyce & Isley, PLLC, 153 N.C. App. at 35-36, 568 S.E.2d at 902. In the absence of other alleged tortious conduct by defendant, the trial court properly dismissed this claim. The trial court\u2019s order, granting defendant\u2019s motion to dismiss for failure to state a claim upon which relief can be granted pursuant to North Carolina Rule of Civil Procedure 12(b)(6), is affirmed.\nAffirmed.\nJudges GEER and STROUD concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Boyce & Isley, PLLC, by Philip R. Isley, for plaintiff-appellant.", "Parker, Poe, Adams & Bernstein, LLP, by Robert W. Spearman, Scott E. Bayzle, and Matthew H. Mall, for defendant-appellee." ], "corrections": "", "head_matter": "THOMAS FRANKLIN CRAVEN, Plaintiff v. SEIU COPE, Defendant\nNo. COA07-925\n(Filed 19 February 2008)\n1. Libel and Slander\u2014 political campaign \u2014 rhetorical hyperbole and opinion\nStatements in a political campaign did not support a claim of defamation per se where they were either matters of personal opinion or rhetorical hyperbole no reasonable reader would believe.\n2. Constitutional Law\u2014 statements in political campaign\u2014 not shielded\nStatements in a political campaign (which were not defamatory per se) were not constitutionally shielded; defendant was not free to make whatever assertions it desired.\n3. Unfair Trade Practices\u2014 political campaign \u2014 underlying defamation claim \u2014 without merit\nA claim for unfair and deceptive trade practices arising from statements made in a political campaign was correctly dismissed where the underlying defamation claim was correctly dismissed and there were no other allegations of tortious conduct.\nAppeal by plaintiff from judgment entered 16 April 2007 by Judge Ronald Stephens in Wake County Superior Court. Heard in the Court of Appeals 17 January 2008.\nBoyce & Isley, PLLC, by Philip R. Isley, for plaintiff-appellant.\nParker, Poe, Adams & Bernstein, LLP, by Robert W. Spearman, Scott E. Bayzle, and Matthew H. Mall, for defendant-appellee." }, "file_name": "0814-01", "first_page_order": 844, "last_page_order": 850 }