{ "id": 5309520, "name": "EARL ELLIS and ELLIS BROKERAGE COMPANY, INC. v. NORTHERN STAR COMPANY and THOMAS W. KENNEY", "name_abbreviation": "Ellis v. Northern Star Co.", "decision_date": "1990-02-07", "docket_number": "No. 192PA89", "first_page": "219", "last_page": "231", "citations": [ { "type": "official", "cite": "326 N.C. 219" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "268 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "103" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550778 ], "year": 1980, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0530-01" ] }, { "cite": "347 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736775, 4740168, 4739944, 4736235, 4733980 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0283-02", "/nc/318/0283-05", "/nc/318/0283-04", "/nc/318/0283-01", "/nc/318/0283-03" ] }, { "cite": "344 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "301" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523445 ], "year": 1986, "pin_cites": [ { "page": "426-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0421-01" ] }, { "cite": "333 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "306" } ], "opinion_index": 0 }, { "cite": "314 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685783 ], "year": 1985, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0219-01" ] }, { "cite": "343 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524393 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0477-01" ] }, { "cite": "333 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690671 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0267-01" ] }, { "cite": "218 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "parenthetical": "fraud" }, { "page": "345-46" }, { "page": "346-47" } ], "opinion_index": 0 }, { "cite": "288 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568140 ], "weight": 2, "year": 1975, "pin_cites": [ { "parenthetical": "fraud" }, { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0303-01" ] }, { "cite": "331 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "false advertising" } ], "opinion_index": 0 }, { "cite": "314 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696461 ], "year": 1985, "pin_cites": [ { "parenthetical": "false advertising" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0090-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "343 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "316 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694338 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "472" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0461-01" ] }, { "cite": "35 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274318 ], "year": 1851, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/35/0142-01" ] }, { "cite": "251 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "296 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567991 ], "year": 1979, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0533-01" ] }, { "cite": "1981 Duke L.J. 811", "category": "journals:journal", "reporter": "Duke L.J.", "opinion_index": 0 }, { "cite": "68 N.C.L. Rev. 273", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1990, "opinion_index": 0 }, { "cite": "228 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548758 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0233-01" ] }, { "cite": "418 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173012 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/418/0323-01" ] }, { "cite": "472 U.S. 749", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512563 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/472/0749-01" ] }, { "cite": "83 L. Ed. 2d 121", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 858", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12011489, 12011522, 12011844, 12012197, 12011590, 12012294, 12011909, 12011977, 12011788, 12012238, 12011630, 12012146, 12012090 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0858-01", "/us/469/0858-02", "/us/469/0858-06", "/us/469/0858-11", "/us/469/0858-03", "/us/469/0858-13", "/us/469/0858-07", "/us/469/0858-08", "/us/469/0858-05", "/us/469/0858-12", "/us/469/0858-04", "/us/469/0858-10", "/us/469/0858-09" ] }, { "cite": "312 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "408" }, { "page": "408" }, { "page": "408-09" }, { "page": "409" } ], "opinion_index": 0 }, { "cite": "310 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400761 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "316" }, { "page": "316" }, { "page": "317" }, { "page": "317-18" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0312-01" ] }, { "cite": "195 S.E. 55", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1938, "pin_cites": [ { "page": "59" }, { "page": "59" } ], "opinion_index": 0 }, { "cite": "212 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620303 ], "weight": 4, "year": 1938, "pin_cites": [ { "page": "785" }, { "page": "785" }, { "page": "787" }, { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0780-01" ] }, { "cite": "325 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "72 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527360 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc-app/72/0641-01" ] }, { "cite": "261 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "letters, which were sent to television stations and which asserted that advertising agency breached its contracts and failed to pay its bills, tended to injure agency's business reputation, making the letters libelous per se" } ], "opinion_index": 1 }, { "cite": "298 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573352, 8573420, 8573394, 8573330, 8573373 ], "year": 1979, "pin_cites": [ { "parenthetical": "letters, which were sent to television stations and which asserted that advertising agency breached its contracts and failed to pay its bills, tended to injure agency's business reputation, making the letters libelous per se" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0569-02", "/nc/298/0569-05", "/nc/298/0569-04", "/nc/298/0569-01", "/nc/298/0569-03" ] }, { "cite": "256 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "letters, which were sent to television stations and which asserted that advertising agency breached its contracts and failed to pay its bills, tended to injure agency's business reputation, making the letters libelous per se" } ], "opinion_index": 1 }, { "cite": "42 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553202 ], "year": 1979, "pin_cites": [ { "parenthetical": "letters, which were sent to television stations and which asserted that advertising agency breached its contracts and failed to pay its bills, tended to injure agency's business reputation, making the letters libelous per se" } ], "opinion_index": 1, "case_paths": [ "/nc-app/42/0184-01" ] }, { "cite": "338 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "defendant's statements that plaintiff was immature, unintelligent, and unfit as mother were not slander actionable per se as statements made to affect plaintiff in her trade or business as nursery school worker" } ], "opinion_index": 1 }, { "cite": "78 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523628 ], "year": 1986, "pin_cites": [ { "parenthetical": "defendant's statements that plaintiff was immature, unintelligent, and unfit as mother were not slander actionable per se as statements made to affect plaintiff in her trade or business as nursery school worker" } ], "opinion_index": 1, "case_paths": [ "/nc-app/78/0668-01" ] }, { "cite": "374 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "statements by defendant to plaintiff's colleague that plaintiff was a liar, deceitful, absolutely useless, and a fraud impeached plaintiff in his profession and constituted slander per se" } ], "opinion_index": 1 }, { "cite": "323 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561393, 2561378, 2562195, 2562245 ], "year": 1988, "pin_cites": [ { "parenthetical": "statements by defendant to plaintiff's colleague that plaintiff was a liar, deceitful, absolutely useless, and a fraud impeached plaintiff in his profession and constituted slander per se" } ], "opinion_index": 1, "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": [ { "parenthetical": "statements by defendant to plaintiff's colleague that plaintiff was a liar, deceitful, absolutely useless, and a fraud impeached plaintiff in his profession and constituted slander per se" } ], "opinion_index": 1 }, { "cite": "91 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524967 ], "year": 1988, "pin_cites": [ { "parenthetical": "statements by defendant to plaintiff's colleague that plaintiff was a liar, deceitful, absolutely useless, and a fraud impeached plaintiff in his profession and constituted slander per se" } ], "opinion_index": 1, "case_paths": [ "/nc-app/91/0171-01" ] }, { "cite": "138 S.E. 616", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "pin_cites": [ { "parenthetical": "newspaper article labeling minister an \"immigrant ignoramus\" and calling him discourteous to those who disagreed with him on the subject of evolution affected his calling and was libelous per se" } ], "opinion_index": 1 }, { "cite": "194 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599785 ], "year": 1927, "pin_cites": [ { "parenthetical": "newspaper article labeling minister an \"immigrant ignoramus\" and calling him discourteous to those who disagreed with him on the subject of evolution affected his calling and was libelous per se" } ], "opinion_index": 1, "case_paths": [ "/nc/194/0146-01" ] }, { "cite": "179 S.E. 452", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "parenthetical": "statement by butcher that his competitor had slaughtered a mad-dog-bitten cow was defamatory per se" } ], "opinion_index": 1 }, { "cite": "208 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596038 ], "year": 1935, "pin_cites": [ { "parenthetical": "statement by butcher that his competitor had slaughtered a mad-dog-bitten cow was defamatory per se" } ], "opinion_index": 1, "case_paths": [ "/nc/208/0085-01" ] }, { "cite": "183 S.E. 416", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "pin_cites": [ { "parenthetical": "it was libel per se for newspaper to publish that plaintiff was the leader of a strike and had been arrested for trespassing on mill property" } ], "opinion_index": 1 }, { "cite": "209 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221547 ], "year": 1936, "pin_cites": [ { "parenthetical": "it was libel per se for newspaper to publish that plaintiff was the leader of a strike and had been arrested for trespassing on mill property" } ], "opinion_index": 1, "case_paths": [ "/nc/209/0134-01" ] }, { "cite": "89 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "parenthetical": "where plaintiff alleged that defendant, a business competitor, spoke words over the telephone to a customer which imputed to plaintiff the reputation of engaging in \"shady deals,\" the words were slander per se" } ], "opinion_index": 1 }, { "cite": "242 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622561 ], "year": 1955, "pin_cites": [ { "parenthetical": "where plaintiff alleged that defendant, a business competitor, spoke words over the telephone to a customer which imputed to plaintiff the reputation of engaging in \"shady deals,\" the words were slander per se" } ], "opinion_index": 1, "case_paths": [ "/nc/242/0755-01" ] }, { "cite": "315 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399937, 2403675 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0749-01", "/nc/310/0749-02" ] }, { "cite": "343 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "allegations that president of bank published statements that one of borrowers forged his letters of credit and that he was drug dealer constituted allegations of slander per se" } ], "opinion_index": 1 }, { "cite": "80 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524393 ], "year": 1986, "pin_cites": [ { "parenthetical": "allegations that president of bank published statements that one of borrowers forged his letters of credit and that he was drug dealer constituted allegations of slander per se" } ], "opinion_index": 1, "case_paths": [ "/nc-app/80/0477-01" ] }, { "cite": "83 L. Ed. 2d 121", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 1 }, { "cite": "469 U.S. 858", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12011489, 12011522, 12011844, 12012197, 12011590, 12012294, 12011909, 12011977, 12011788, 12012238, 12011630, 12012146, 12012090 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/us/469/0858-01", "/us/469/0858-02", "/us/469/0858-06", "/us/469/0858-11", "/us/469/0858-03", "/us/469/0858-13", "/us/469/0858-07", "/us/469/0858-08", "/us/469/0858-05", "/us/469/0858-12", "/us/469/0858-04", "/us/469/0858-10", "/us/469/0858-09" ] }, { "cite": "312 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "409" }, { "page": "408" }, { "page": "408" } ], "opinion_index": 1 }, { "cite": "310 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400761 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "317" }, { "page": "317" } ], "opinion_index": 1, "case_paths": [ "/nc/310/0312-01" ] }, { "cite": "195 S.E. 55", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1938, "pin_cites": [ { "page": "60", "parenthetical": "emphasis added" }, { "page": "60", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "212 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620303 ], "weight": 3, "year": 1938, "pin_cites": [ { "page": "786" }, { "page": "786" } ], "opinion_index": 1, "case_paths": [ "/nc/212/0780-01" ] } ], "analysis": { "cardinality": 1074, "char_count": 27620, "ocr_confidence": 0.724, "pagerank": { "raw": 6.401796832773458e-07, "percentile": 0.9594457051357048 }, "sha256": "3b407e2fa785799172528c0013a28742d0203d5bbc34697b12a19f5d017f67ec", "simhash": "1:07d279607c7d10f6", "word_count": 4590 }, "last_updated": "2023-07-14T18:38:26.587833+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice WHICHARD joins in this dissenting opinion." ], "parties": [ "EARL ELLIS and ELLIS BROKERAGE COMPANY, INC. v. NORTHERN STAR COMPANY and THOMAS W. KENNEY" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe questions presented on appeal include (1) whether a letter sent by the defendants to some of the plaintiffs\u2019 business contacts is libelous per se, and (2) whether libel per se of a plaintiff relating to the conduct of its business constitutes an unfair or deceptive act affecting commerce in violation of N.C.G.S. \u00a7 75-1.1. We conclude that the letter in question was properly found to be libelous per se. We further conclude that libel per se of a plaintiff as to the conduct of its business does violate N.C.G.S. \u00a7 75-1.1 and, when the libel proximately causes injury to the business, gives rise to a cause of action under N.C.G.S. \u00a7 75-16.\nAt trial, evidence tended to show that the plaintiff Ellis Brokerage Company, Inc. is a food broker. The company\u2019s function as a food broker is to convince large-quantity food buyers, such as hospitals and school systems, to place orders with the company\u2019s clients who are in the business of selling foods. The company\u2019s sole full-time employee is the individual plaintiff Earl Ellis. The defendant Northern Star Company is a Minnesota-based potato processor, and the defendant Thomas Kenney is Northern Star\u2019s senior vice-president for sales. Ellis Brokerage Company became a broker for Northern Star in 1981, and over the years built Northern Star\u2019s sales in eastern North Carolina from no sales at all to approximately $640,000 annually.\nOn 20 June 1986, Ellis received Northern Star potato pricing information from Kenney over the telephone. On 23 June 1986, Ellis sent price lists based on this information to several potential buyers.\nOn 29 August 1986, Northern Star terminated its brokerage contract with Ellis Brokerage Company. On 5 September 1986, Kenney wrote the following letter for Northern Star to several of the buyers who had received the 23 June price list from Ellis:\nDear Sir;\nWe have recently received copies of a price list sent to you from Ellis Brokerage Company regarding pricing on Northern Star potato products. These prices were noted for bids only, delivered by Northern Star.\nWe at Northern Star Company did not authorize such a price list and therefore cannot honor the prices as quoted on June 23, 1986.\nSincerely,\nThomas W. Kenney Senior Vice-President Sales\nThe plaintiffs then brought this action contending the letter is libelous per se and an unfair or deceptive act affecting commerce under N.C.G.S. \u00a7 75-1.1. The plaintiffs\u2019 amended complaint also alleged breach of a covenant of good faith, breach of contract through unreasonable termination, tortious interference with business relations, and unjust enrichment or restitution. The defendants counterclaimed for breach of fiduciary duty and breach of contract. The breach of contract claim and counterclaim were settled prior to trial. At the close of the plaintiffs\u2019 evidence, the trial court granted the defendants\u2019 motions for directed verdicts on all but the libel claims. The jury found that the defendants had maliciously libeled the plaintiff Ellis Brokerage Company, and awarded compensatory and punitive damages. The jury also found, however, that the defendants had not libeled the individual plaintiff Earl Ellis.\nWe note at the outset that, since the jury expressly found that the defendants acted with actual malice, this case does not present the issue of whether damages may be presumed in libel per se actions absent a finding of malice, as this Court has held in previous cases. See, e.g., Flake v. News Co., 212 N.C. 780, 785, 195 S.E. 55, 59 (1938), quoted in Renwick v. News and Observer & Renwick v. Greensboro News, 310 N.C. 312, 316, 312 S.E.2d 405, 408, cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121 (1984). Certain cases decided by the Supreme Court of the United States give rise to a question as to whether North Carolina can continue the common law presumption of damages in libel per se actions absent express findings of malice. See, e.g., Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 86 L. Ed. 2d 593 (1985); Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789 (1974); Walters v. The Sanford Herald, Inc., 31 N.C. App. 233, 228 S.E.2d 766 (1976); Halpern, Of Libel, Language, and Law: New York Times v. Sullivan at Twenty-Five, 68 N.C.L. Rev. 273 (1990); Christie, Underlying Contradictions in the Supreme Court\u2019s Classification of Defamation, 1981 Duke L.J. 811.\nI.\nWe first address the defendants\u2019 contentions that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict as to the plaintiffs\u2019 libel and punitive damages claims. Since the jury found the defendants had not libeled Earl Ellis, we consider these contentions only as they relate to the libel claim by Ellis Brokerage Company.\nNorth Carolina has long recognized three categories of libel:\n(1) Publications which are obviously defamatory and which are termed libels per se; (2) publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not; and (3) publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances. This type of libel is termed libel per quod.\nFlake v. News Co., 212 N.C. 780, 785, 195 S.E. 55, 59 (1938); see Renwick v. News and Observer & Renwick v. Greensboro News, 310 N.C. at 316, 312 S.E.2d at 408 (quoting Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979)).\nFurther.\na publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) It charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to ridicule, contempt, or disgrace, or (4) it tends to impeach one in his trade or profession.\nFlake v. News Co., 212 N.C. at 787, 195 S.E.2d at 60-61 (citing cases), cited in Renwick v. News and Observer & Renwick v. Greensboro News, 310 N.C. at 317, 312 S.E.2d at 408-09.\nThe plaintiffs contend that the defendants\u2019 letter of 5 September 1986 is libelous per se. The defendants, on the other hand, argue that the letter is not defamatory at all or, alternatively, it is susceptible of both defamatory and nondefamatory interpretations. We conclude that the letter is libelous per se. The language \u201c[w]e at Northern Star did not authorize such a price list,\u201d taken in the context of the entire letter, can only be read to mean that Ellis Brokerage Company, acting in its capacity as broker for Northern Star, did an unauthorized act. Whether that act was publishing certain unauthorized prices within a price list or publishing the entire price list itself without authorization is of no import; either reading is defamatory and impeaches Ellis Brokerage in its trade as a food broker.\nWhether a publication is one of the type that properly may be deemed libelous per se is a question of law to be decided initially by the trial court. See Flake v. News Co., 212 N.C. at 786, 195 S.E.2d at 409, quoted in Renwick v. News and Observer & Renwick v. Greensboro News, 310 N.C. at 317-18, 312 S.E.2d at 409; Sasser v. Rouse, 35 N.C. 142, 143 (1851). Here, the trial court properly treated the defendants\u2019 letter as a publication of that type and allowed the libel per se claim of Ellis Brokerage Company to be decided by the jury.\nAt trial, Earl Ellis testified to a discussion he had with Bill Flemming of Henderson Fruit & Produce, one of Ellis Brokerage Company\u2019s customers. Ellis testified that Flemming stated he had received one of Northern Star\u2019s letters. Flemming told Ellis, after receiving the letter, that \u201che was going to look for other sources to get his potatoes because he didn\u2019t know whether he could trust me or Northern Star either one.\u201d Although the defendants objected to Ellis\u2019 testimony concerning Flemming\u2019s statement, the trial court properly admitted the testimony as showing Flemming\u2019s state of mind, since it was directly pertinent to the question of Flemming\u2019s reliance upon the defendants\u2019 misrepresentations. See Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 472, 343 S.E.2d 174, 181 (1986); N.C.R. Evid. 801(c), 803(3); 1 Brandis on North Carolina Evidence 3d \u00a7\u00a7 141, 161 (1988 & Supp. 1989). While Flemming\u2019s statement as described by Ellis could be taken as an indication that Flemming did not think he could trust Earl Ellis personally, Earl Ellis and Ellis Brokerage Company were, to the extent pertinent to this issue, one and the same; Earl Ellis was the sole employee of Ellis Brokerage Company. The testimony of Earl Ellis concerning Flemming\u2019s statement was sufficient to support the jury\u2019s finding that the defendants\u2019 letter proximately caused injury to Ellis Brokerage Company\u2019s business.\nBased on the evidence and upon proper instructions, the jury found that the defendants had libeled Ellis Brokerage Company and that the company was entitled to compensatory and punitive damages. The defendants\u2019 assignments of error relating to the verdict and judgment against them for their having libeled Ellis Brokerage Company are without merit and are overruled.\nII.\nThe second issue before the Court is whether libel per se in a business setting is an unfair or deceptive act in or affecting commerce in violation of N.C.G.S. \u00a7 75-1.1. With certain qualifications discussed below, we answer this question in the affirmative. Again, since the jury found no libel of the plaintiff Earl Ellis by the defendants, we consider and answer this question only with regard to the plaintiff Ellis Brokerage Company.\nThis Court has previously examined the substance and purpose of N.C.G.S. \u00a7 75-1.1 prohibiting unfair or deceptive acts in or affecting commerce. See, e.g., Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981). We have concluded, for example, that both false advertising and fraud violate that statute. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985) (false advertising); Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975) (fraud). In limitation, we have held that certain transactions already subject to pervasive and intricate statutory regulation, such as securities transactions, were not intended by the legislature to be included within the scope of the statute. Skinner v. E.F. Hutton & Co., 314 N.C. 267, 333 S.E.2d 236 (1985). In the present case, however, we conclude that no such limitation applies. Instead, like fraud and false advertising, 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.G.S. \u00a7 75-1.1, which will justify an award of damages under N.C.G.S. \u00a7 75-16 for injuries proximately caused. See Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986). To recover, however, a plaintiff must have \u201csuffered actual injury as a proximate result of defendant\u2019s deceptive statement or misrepresentation.\u201d Pearce v. American Defender Life Ins. Co., 316 N.C. at 471, 343 S.E.2d at 180. The trial court erred in granting the defendants\u2019 motion for directed verdicts in their favor on this claim.\nIII.\nGiven the peculiar posture in which this case comes before us on appeal, we next find it necessary to consider whether the jury\u2019s findings that the defendants libeled Ellis Brokerage Company by impeaching it in its trade, thereby proximately causing it actual injury and damages, require, as a matter of law, entry of judgment for Ellis Brokerage Company on its unfair or deceptive acts claim. Whether an act found by the jury to have occurred is an unfair or deceptive practice which violates N.C.G.S. \u00a7 75-1.1 is a question of law for the court. Hardy v. Toler, 288 N.C. at 308-09, 218 S.E.2d at 345-46. \u201cOrdinarily it would be for the jury to determine the facts, and based on the jury\u2019s finding, the court would then determine as a matter of law whether the defendant engaged in unfair or deceptive acts or practices in the conduct of trade or commerce.\u201d Id. at 310, 218 S.E.2d at 346-47. Therefore, it does not invade the province of the jury for this Court to determine as a matter of law on appeal that acts expressly found by the jury to have occurred and to have proximately caused damages are unfair or deceptive acts in or affecting commerce under N.C.G.S. \u00a7 75-1.1.\nSince the trial court erroneously directed a verdict against Ellis Brokerage Company on its unfair or deceptive practices claim, the jury was not instructed on the requirement of proximate causation necessary to support an award of damages for that claim. However, the jury was instructed that in order to award more than nominal damages for the defendants\u2019 libel of Ellis Brokerage Company, the jury must find \u201cactual damages ... to [the] business reputation of the Plaintiff caused by the libel.\u201d As Ellis Brokerage Company\u2019s libel and unfair trade claims both were based on exactly the same proximate results of exactly the same act of the defendants, we conclude that the jury was sufficiently instructed on, and by its special verdict did find, damages to Ellis Brokerage Company proximately caused by the defendants\u2019 letter. We conclude as a matter of law, upon the facts found by the jury after proper instructions in this case, that the defendants\u2019 act did violate N.C.G.S. \u00a7 75-1.1. The order of the trial court directing a verdict against Ellis Brokerage Company on its unfair or deceptive practices claim must therefore be reversed and this case, given the peculiar posture in which it has come before us, is remanded for entry of judgment for the plaintiff Ellis Brokerage Company on that claim.\nFor reasons similar to those we have just discussed, however, the individual plaintiff Earl Ellis is entitled to no relief as a result of the trial court\u2019s error in directing a verdict against him on his unfair or deceptive practices claim. After proper instructions by the trial court, the jury found as a fact that the defendants\u2019 act of mailing the letter had not libeled Earl Ellis individually by impeaching him in his trade. As the plaintiff Earl Ellis alleged no other act of the defendants in support of his unfair or deceptive practices claim, the jury\u2019s findings against him in this regard on the libel claim necessarily were findings rejecting the facts alleged by him in his unfair or deceptive practices claim. Therefore, the plaintiff Earl Ellis is entitled to no relief on appeal.\nIV.\nThere remains a question as to the proper damages to be awarded to Ellis Brokerage Company. The company contends that it should be entitled to both punitive damages for the libel and the treble damages automatically assessed under N.C.G.S. \u00a7 75-16. We disagree. The libel and unfair trade claims both arose from the defendants\u2019 letter. Plaintiffs may in proper cases elect to recover either punitive damages under a common law claim or treble damages under N.C.G.S. \u00a7 75-16, but they may not recover both. See Bicycle Transit Authority v. Bell, 314 N.C. 219, 230, 333 S.E.2d 299, 306 (1985); Mapp v. Toyota World, Inc., 81 N.C. App. 421, 426-27, 344 S.E.2d 297, 301, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986); Marshall v. Miller, 47 N.C. App. 530, 542, 268 S.E.2d 97, 103 (1980), modified and aff\u2019d, 302 N.C. 539, 276 S.E.2d 397 (1981). The jury awarded Ellis Brokerage Company $32,500 in actual damages and $12,500 in punitive damages for the libel. Under N.C.G.S. \u00a7 75-16, the $32,500 in actual damages would be trebled, for a sum of $97,500. On remand of this case, the trial court must allow Ellis Brokerage Company to elect its remedy: either a total of $45,000 for the combined libel award; or a total of $97,500 under N.C.G.S. \u00a7 75-16.\nAffirmed in part; reversed in part; and remanded for further proceedings not inconsistent with this decision.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice Meyer\ndissenting.\nI respectfully dissent from the majority\u2019s holding that the letter sent by defendant company to several of plaintiffs\u2019 business associates constitutes libel per se because it contains the assertion, \u201c[w]e at Northern Star Company did not authorize such a price list.\u201d I do not believe that the phrase in question, when given its ordinary, everyday meaning, can only be interpreted as defamatory. Rather, the most that can be said is that the words can fairly and reasonably be interpreted in two ways, one of which is defamatory and the other of which is not.\nIn order to find a publication to be libelous per se, a court must construe the writing alone, without innuendo, colloquium or explanatory circumstances and find that the publication (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. Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 312 S.E.2d 405, reh\u2019g denied, 310 N.C. 749, 315 S.E.2d 704, cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121 (1984); Flake v. News Co., 212 N.C. 780, 195 S.E. 55 (1938). \u201c[DJefamatory words to be libelous per se must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided.\u201d Flake, 212 N.C. at 786, 195 S.E. at 60 (emphasis added). I cannot conclude that this letter is susceptible of but one interpretation, which is defamatory when considered alone without innuendo or explanatory circumstances. The worst that can be said of the letter is that it is reasonably susceptible of a defamatory meaning. See Renwick, 310 N.C. 312, 312 S.E.2d 405. I find that the letter is, at the very least, equally susceptible of a nondefamatory interpretation. It therefore cannot be libelous per se.\nThe principle of common sense requires that courts shall understand [publications] as other people would. The question always is how would ordinary men naturally understand the publication. The fact that supersensitive persons with morbid imaginations may be able, by reading between the lines of [a publication], to discover some defamatory meaning therein is. not sufficient to make it libelous.\nFlake, 212 N.C. at 786, 195 S.E. at 60 (citations omitted).\nThe assertion, \u201c[w]e at Northern Star Company did not authorize such a price list,\u201d when read by a typical recipient of this letter, could very reasonably be interpreted to mean that there was a simple breakdown in communications or an inadvertent mistake in the price list through the fault of either or both parties. I concede that if such a statement imputes a lack of qualities which the \u25a0public, in this case the buyers of defendant\u2019s product, has a right to expect of a plaintiff in its calling, it is properly labeled libel per se. Such would be the case if defendant indicated that plaintiffs habitually published price lists without defendant\u2019s authorization, or repeatedly made mistakes in the transmission of those prices. However, the fact that defendant informed its customers that on one occasion its broker sent a price list that defendant did not authorize does not rise to the level of accusing that broker of incompetence or untrustworthiness, nor would a typical buyer automatically reach that conclusion.\nOur case law defines the applicable category of libel per se as those publications which tend to \u201cimpeach a person in that person\u2019s trade or profession.\u201d Renwick, 310 N.C. at 317, 312 S.E.2d at 409. Although this category could be interpreted as encompassing a wide spectrum of perceived wrongs, my research of North Carolina case law reveals that our courts have tended to recognize more blatantly derogatory statements than the one at issue here as defamatory per se in the business context. The words must contain an imputation which is necessarily harmful in its effect on plaintiffs\u2019 business. See, e.g., Badame v. Lampke, 242 N.C. 755, 89 S.E.2d 466 (1955) (where plaintiff alleged that defendant, a business competitor, spoke words over the telephone to a customer which imputed to plaintiff the reputation of engaging in \u201cshady deals,\u201d the words were slander per se); Lay v. Publishing Co., 209 N.C. 134, 183 S.E. 416 (1936) (it was libel per se for newspaper to publish that plaintiff was the leader of a strike and had been arrested for trespassing on mill property); Broadway v. Cope, 208 N.C. 85, 179 S.E. 452 (1935) (statement by butcher that his competitor had slaughtered a mad-dog-bitten cow was defamatory per se); Pentuff v. Park, 194 N.C. 146, 138 S.E. 616 (1927) (newspaper article labeling minister an \u201cimmigrant ignoramus\u201d and calling him discourteous to those who disagreed with him on the subject of evolution affected his calling and was libelous per se); U v. Duke University, 91 N.C. App. 171, 371 S.E.2d 701, disc. rev. denied, 323 N.C. 629, 374 S.E.2d 590 (1988) (statements by defendant to plaintiff\u2019s colleague that plaintiff was a liar, deceitful, absolutely useless, and a fraud impeached plaintiff in his profession and constituted slander per se); Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986) (allegations that president of bank published statements that one of borrowers forged his letters of credit and that he was drug dealer constituted allegations of slander per se); Morris v. Bruney, 78 N.C. App. 668, 338 S.E.2d 561 (1986) (defendant\u2019s statements that plaintiff was immature, unintelligent, and unfit as mother were not slander actionable per se as statements made to affect plaintiff in her trade or business as nursery school worker); Matthews, Cremins, McLean, Inc. v. Nichter, 42 N.C. App. 184, 256 S.E.2d 261, cert. denied, 298 N.C. 569, 261 S.E.2d 123 (1979) (letters, which were sent to television stations and which asserted that advertising agency breached its contracts and failed to pay its bills, tended to injure agency\u2019s business reputation, making the letters libelous per se).\nThe trial court treated defendant\u2019s letter as libel per se and charged the jury that if it found that the letter was \u201cunderstood by the third person in a defamatory way, that is, that the statement reasonably tended to impeach or injure the Plaintiff in his trade or profession,\u201d then it would be the jury\u2019s duty to answer the issue \u201cyes.\u201d In my opinion, defendant\u2019s letter was clearly not defamatory per se, and the issue should not have been submitted to the jury.\nInstructions on middle-tier libel, libel per quod, or both would have been appropriate in this case had they been properly alleged in plaintiffs\u2019 complaint. However, plaintiffs\u2019 complaint failed to bring the letter within the second class of libel, since it did not allege that the letter is susceptible of two interpretations, one defamatory, and that the defamatory meaning was intended and was so understood by those to whom the publication was made. Renwick, 310 N.C. at 316-17, 312 S.E.2d at 408; Cathy\u2019s Boutique v. Winston- Salem Joint Venture, 72 N.C. App. 641, 325 S.E.2d 283 (1985). Further, the complaint failed to bring the letter within the libel per quod category because plaintiffs did not allege special damages. Renwick, 310 N.C. at 317, 312 S.E.2d at 408. While certain allegations of the complaint might be interpreted to allege special damages, the complaint refers to those allegations as supporting only a libel per se. If, as I have concluded, the writing does not constitute libel per se, defendant is entitled to remand of this case directing the entry of an order granting its motion for directed verdict on the libel issue.\nJustice WHICHARD joins in this dissenting opinion.", "type": "dissent", "author": "Justice Meyer" } ], "attorneys": [ "Graham & James, by Mark Anderson Finkelstein, for the plaintiffs.", "Morris, Bell & Morris, by William C. Morris, Jr., for the defendants." ], "corrections": "", "head_matter": "EARL ELLIS and ELLIS BROKERAGE COMPANY, INC. v. NORTHERN STAR COMPANY and THOMAS W. KENNEY\nNo. 192PA89\n(Filed 7 February 1990)\n1. Libel and Slander \u00a7 5.2 (NCI3d)\u2014 letter impeaching trade \u2014libelous per se\nA letter sent by defendant potato processor\u2019s vice president to customers of plaintiff food brokerage company which referred to a price list for Northern Star potato products distributed by plaintiff and stated that \u201cwe at Northern Star did not authorize such a price list\u201d impeached plaintiff in its trade as a food broker and was libelous per se.\nAm Jur 2d, Libel and Slander \u00a7\u00a7 102, 104.\n2. Libel and Slander \u00a7 15 (NCI3d)\u2014 statement by plaintiff\u2019s customer \u2014 competency to show injury to business\nTestimony by plaintiff food broker\u2019s employee that, after having received a libelous letter from defendant potato processor stating that it did not authorize a price list distributed by plaintiff, a customer stated that \u201che was going to look for other sources to get his potatoes because he didn\u2019t know whether he could trust [plaintiff or defendant] either one\u201d was properly admitted to show the customer\u2019s state of mind in relying on defendants\u2019 misrepresentations in the letter and was sufficient to support the jury\u2019s finding that defendants\u2019 letter proximately caused injury to plaintiffs\u2019 business.\nAm Jur 2d, Libel and Slander \u00a7\u00a7 360, 472.\n3. Unfair Competition \u00a7 1 (NCI3d|\u2014 libel per se impeaching business activity \u2014 unfair trade practice\nA 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.G.S. \u00a7 75-1.1, which will justify an award of damages under N.C.G.S. \u00a7 75-16 for injuries proximately caused.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7\u00a7 772, 774.\n4. Unfair Competition \u00a7 1 (NCI3d)\u2014 unfair trade practice \u2014 question of law\nWhether an act found by the jury to have occurred is an unfair or deceptive practice which violates N.C.G.S. \u00a7 75-1.1 is a question of law for the courts.\nAm Jur 2d, Libel and Slander \u00a7\u00a7 360, 484.\n5; Unfair Competition \u00a7 1 (NCI3d)\u2014 unfair trade practice \u2014 determination by appellate court\nIt does not invade the province of the jury for the Supreme Court to determine as a matter of law on appeal that acts expressly found by the jury to have occurred and to have proximately caused damages are unfair or deceptive acts in or affecting commerce under N.C.G.S. \u00a7 75-1.1.\nAm Jur 2d, Libel and Slander \u00a7\u00a7 360, 484.\n6. Unfair Competition \u00a7 1 (NCI3d)\u2014 letter impeaching trade \u2014 jury finding of libel and damages \u2014 unfair trade practice as matter of law\nThe jury\u2019s findings that defendants libeled plaintiff food brokerage company by a letter impeaching it in its trade, thereby causing it actual injury and damages, required entry of judgment for plaintiff as a matter of law on its unfair and deceptive trade practice claim.\nAm Jur 2d, Libel and Slander \u00a7\u00a7 360, 484.\n7. Libel and Slander \u00a7 18 (NCI3d); Unfair Competition \u00a7 1 (NCI3d)\u2014 libel and unfair trade practice \u2014 punitive or treble damages\nWhere libel and unfair trade practice claims arose from a letter sent by defendants, plaintiffs were not entitled to both punitive damages for the libel and treble damages under N.C.G.S. \u00a7 75-16 but could elect whether to recover punitive or treble damages.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 711.\nJustice MEYER dissenting.\nJustice WHICHARD joins in this dissenting opinion.\nOn appeal from the judgment of Brewer, J., entered in Superior Court, WAKE County, on 4 November 1988. Pursuant to N.C.G.S. \u00a7 7A-31(a) and Rule 15(e)(2) of the North Carolina Rules of Appellate Procedure, discretionary review prior to a determination by the Court of Appeals was allowed by the Supreme Court ex mero motu on 16 May 1989. Heard in the Supreme Court on 13 September 1989.\nGraham & James, by Mark Anderson Finkelstein, for the plaintiffs.\nMorris, Bell & Morris, by William C. Morris, Jr., for the defendants." }, "file_name": "0219-01", "first_page_order": 255, "last_page_order": 267 }