Hendrix v. Town of West Jefferson ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-948
Filed: 18 August 2020
Ashe County, No. 18 CVS 442
JAMES H. HENDRIX, Plaintiff
v.
TOWN OF WEST JEFFERSON; c/o BRANTLEY PRICE, town manager; MAYOR
DALE BALDWIN (in his official capacity); ALDERMEN (in their official capacities)
BRETT SUMMEY, STEPHEN SHOEMAKER, JOHN REEVES, JERRY
MCMILLIAN, CALVIN GREENE, Defendants
Appeal by Plaintiff from Order entered 17 June 2019 by Judge Edwin Wilson,
Jr. in Ashe County Superior Court. Heard in the Court of Appeals 17 March 2020.
James H. Hendrix, plaintiff-appellant, pro se.
Cranfill Sumner & Hartzog LLP, by Ryan D. Bolick, for defendants-appellees.
HAMPSON, Judge.
Factual and Procedural Background
James H. Hendrix (Plaintiff) appeals from an Order entered on 17 June 2019,
dismissing with prejudice, under Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure, Plaintiff’s Defamation Claim against the Town of West Jefferson (Town);
Brantley Price, Town Manager of West Jefferson, in his official capacity; Dale
Baldwin, Mayor of West Jefferson, in his official capacity; and Aldermen Brett
Summey, Stephen Shoemaker, John Reeves, Jerry McMillian, and Calvin Greene, in
their official capacities (collectively, Defendants). The Record before us—including
HENDRIX V. WEST JEFFERSON
Opinion of the Court
the allegations in Plaintiff’s Complaint, which we take as true for purposes of
reviewing an order on a motion to dismiss pursuant to Rule 12(b)(6), see State ex rel.
Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 442, 666 S.E.2d 107, 114 (2008)
(citation omitted)—tends to show the following:
From 1993 to 1997, Plaintiff was employed by the Town as a police officer for
the West Jefferson Police Department (WJPD). After leaving WJPD, and through
the filing of his Complaint, Plaintiff was employed in leadership roles in both the law
enforcement and security fields.
In November of 2016, the Ashe County Sheriff resigned, requiring the Ashe
County Board of Commissioners (County Board) to appoint another person to serve
out the rest of the resigning-Sheriff’s term. At the time, the Chief of Police for WJPD
was Jeffery Rose (Chief Rose). Chief Rose also served as a County Commissioner on
the County Board. Gary Roark (Roark) was another County Commissioner on the
County Board.
After learning of the then-Sheriff’s resignation, Plaintiff expressed interest in
being considered for the County Sheriff position to Roark, who conveyed this
information to Chief Rose. On 30 December 2016, Chief Rose and another candidate
for the County Sheriff position, allegedly Terry Buchanan (Buchanan), engaged in
the following text-message exchange:
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Person 1: “It’s unfortunate to see [Plaintiff] supporting Bucky and
the status quo. I believe he knows if I’m appointed he won’t have
a shot in two years.”
Chief Rose: “That is true. I don’t think he would anyway.
Because I could not vote for him.”
Person 1: “He has never had anything good to say about them so
why he felt the need them [sic] is strange to say the least.”
Person 1: “I would just like to see conservatives support each.”
Chief Rose: “Me too and yes he talks about how screwed up they
are. I think just trying to play politics.”
Chief Rose: “[Roark] said [Plaintiff] asked him about being
selected. I told [Roark] no way is he getting my vote.”
Chief Rose: “[Plaintiff is in] the crowd that got gone from [WJPD],
For the evidence being used and smoked.”
The County Board eventually appointed Buchanan as Sheriff of Ashe County.
In April of 2017, a television station in Charlotte filed a public-records request with
the County Board, seeking all written communications, including text messages and
emails, between the Commissioners of the County Board and Buchanan.
Subsequently, on 13 December 2017, the text-message exchange above was published
in the Ashe Post and Times and again republished on 17 December 2017.
On 14 December 2018, Plaintiff filed his Complaint in the current action,
asserting a Defamation Claim against Defendants.1 Plaintiff alleged Chief Rose’s
1Chief Rose is not a party to this action; rather, Plaintiff alleged he served Chief Rose with a
separate action for defamation on 2 October 2018.
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text—“[Plaintiff is in] the crowd that got gone from [WJPD], For the evidence being
used and smoked”—was defamatory and caused Plaintiff to “suffer personal
humiliation, mental anguish and suffering.” In Paragraphs 24 through 28 of his
Complaint, Plaintiff alleged Defendants were liable for Chief Rose’s defamatory
statement for the following reasons:
24. The Defendant(s) have employed Chief Rose as the Chief of
Police for the Town of West Jefferson. Chief Rose is
responsible for the day to day operations of the Police
Department as well as being the spokesman for the WJPD
when matters of law enforcement issues arise. His statements
carry significant weight as he is the top law enforcement
officer in his jurisdiction. As such, statements that he makes
would lead a reasonable person to conclude that the
statements are true and that they have been condoned and
approved for release by the Defendant(s).
25. The Defendant(s) knew or should have known that about the
statements Chief Rose made about the Plaintiff in the
December 17, 2017 Ashe Post and Times article. A quick
search of the Plaintiff’s record by the Defendant(s) would have
shown the statement to be patently false.
26. The Defendant(s) had a fiduciary responsibility to the Plaintiff
to ensure matters concerning his prior employment for the
Defendant(s) be kept private, confidential and factual.
27. The Defendant(s), upon discovery of the libelous and
defamatory statements, had a duty to immediately correct the
false statement by releasing a statement correcting the record
and then requesting their Police Chief, Chief Rose to issue a
retraction concerning the false statement. The Defendant(s)
failed to do so, even though the statements pertained directly
to the Plaintiff’s employment with the WJPD.
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Opinion of the Court
28. The Plaintiff is not a public official or figure and therefore the
Defendant(s) is strictly liable for the Defamation Per Se that
has resulted in the impairment of the Plaintiff’s reputation
and standing in the community, and caused him to suffer
personal humiliation, mental anguish and suffering.
On 19 February 2019, Defendants filed a Motion to Dismiss pursuant to Rule
12(b)(6) of the North Carolina Rules of Civil Procedure, seeking dismissal of Plaintiff’s
Complaint because “Plaintiff fails to allege facts that support claims for defamation
against these Defendants and failed to file the complaint within the applicable
statute of limitations.” The trial court held a hearing on Defendants’ Motion to
Dismiss on 10 June 2019. At this hearing, Defendants argued dismissal of the
Complaint was warranted because Plaintiff did not allege any of the Defendants had
themselves made a defamatory statement against Plaintiff and, more to the point,
Plaintiff had failed to sufficiently allege facts to state a defamation cause of action
against Defendants under a theory of respondeat superior. Specifically, Defendants
contended Plaintiff’s allegations were insufficient to establish respondeat superior
liability because there was no allegation: (a) Chief Rose made the statement with
Defendants’ express authorization; (b) Chief Rose was acting in the course and scope
of his employment with WJPD when he made the statement; or (c) Defendants had
otherwise ratified the statement. Defendants also briefly asserted Plaintiff’s
Complaint was barred by the applicable statute of limitations.
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For his part, Plaintiff acknowledged his Complaint did not expressly allege
Chief Rose was acting in the course and scope of his employment. Instead, Plaintiff
argued he had “tried to spell out Chief Rose’s chief duties while attempting to equate
that to his course and scope of employment.”
The trial court orally granted Defendants’ Motion to Dismiss, and on 17 June
2019, the trial court entered its Order granting Defendants’ Motion to Dismiss under
Rule 12(b)(6). In its Order, the trial court concluded Plaintiff’s Complaint failed to
state a claim upon which relief may be granted. On 19 June 2019, Plaintiff filed
timely Notice of Appeal from the trial court’s Order.
Issue
The dispositive issue on appeal is whether the allegations in Plaintiff’s
Complaint are legally sufficient to state a claim for defamation against Defendants
to survive a dismissal under Rule 12(b)(6) under the theories Chief Rose made the
allegedly defamatory statement in the course and scope of his employment or,
alternatively, Defendants ratified Chief Rose’s statement.
Analysis
I. Standard of Review
On appeal of a Rule 12(b)(6) motion to dismiss, this Court conducts “a de novo
review of the pleadings to determine their legal sufficiency and to determine whether
the trial court’s ruling on the motion to dismiss was correct.” Leary v. N.C. Forest
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Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567,
597 S.E.2d 673-74 (2003); see also Craig v. New Hanover Cty. Bd. of Educ., 363 N.C.
334, 337, 678 S.E.2d 351, 354 (2009) (“Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment for that of the lower
tribunal.” (citation and quotation marks omitted)). This Court views the allegations
in the complaint in the light most favorable to the non-moving party. Donovan v.
Fiumara, 114 N.C. App. 524, 526, 442 S.E.2d 572, 574 (1994) (citation omitted).
Further, this Court considers “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[.]” Harris v. NCNB, 85 N.C. App. 669, 670, 355
S.E.2d 838, 840 (1987) (citation omitted).
“In order to withstand such a motion, the complaint must provide sufficient
notice of the events and circumstances from which the claim arises and must state
sufficient allegations to satisfy the substantive elements of at least some recognized
claim.” Sanders v. State Personnel Comm’n, 197 N.C. App. 314, 319, 677 S.E.2d 182,
186 (2009) (citation omitted). “[D]espite the liberal nature of the concept of notice
pleading, [however,] a complaint must nonetheless state enough to give the
substantive elements of at least some legally recognized claim or it is subject to
dismissal under Rule 12(b)(6).” Stanback v. Stanback, 297 N.C. 181, 204, 254 S.E.2d
611, 626 (1979) (citation omitted); see also Leasing Corp. v. Miller, 45 N.C. App. 400,
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405, 263 S.E.2d 313, 317 (1980) (“A claim for relief must still satisfy the requirements
of the substantive laws which gave rise to the pleadings, and no amount of
liberalization should seduce the pleader into failing to state enough to give the
substantive elements of his claim.” (citation omitted)).
II. Plaintiff’s Defamation Claim
“In 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.” Craven v. SEIU Cope, 188 N.C.
App. 814, 816, 656 S.E.2d 729, 732 (2008) (citation and quotation marks omitted).
Furthermore, as Plaintiff correctly points out, our Courts have long recognized
circumstances under which an employer may be held vicariously liable for defamatory
statements made by an employee. See Gillis v. Tea Co., 223 N.C. 470, 474-75, 27
S.E.2d 283, 286 (1943) (“The principle that the employer is to be held liable for the
torts of his employee when done by his authority, express or implied, or when they
are within the course and scope of the employee’s authority, is equally applicable to
actions for slander.” (citations omitted)).
In his Complaint, Plaintiff alleged the text message by Chief Rose, which was
published in the Ashe Post and Times, was a false, defamatory statement about
Plaintiff because it falsely accused him of stealing and smoking evidence while
working for WJPD and this statement injured him by impairing his reputation and
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causing him to suffer personal humiliation and mental anguish. Presuming
Plaintiff’s allegations are sufficient to allege a defamatory statement by Chief Rose—
again, not a party to this action—the question becomes whether Plaintiff’s allegations
are sufficient to state a claim against Defendants arising from the Town’s
employment of Chief Rose.2
“Generally, employers are liable for torts committed by their employees who
are acting within the scope of their employment under the theory of respondeat
superior.” Matthews v. Food Lion, LLC, 205 N.C. App. 279, 281, 695 S.E.2d 828, 830
(2010) (citation omitted). “As a general rule, liability of a principal for the torts of its
agent may arise in three situations: (1) when the agent’s act is expressly authorized
by the principal; (2) when the agent’s act is committed within the scope of his
employment and in furtherance of the principal’s business[;] or (3) when the agent’s
act is ratified by the principal.” Id. at 281-82, 695 S.E.2d at 830 (citation omitted).3
In this case, Plaintiff does not contend Defendants expressly authorized Chief Rose’s
allegedly defamatory statement; rather, he argues his Complaint should be read to
state a claim against Defendants on the basis Chief Rose was acting within the course
2 No party raises the issue of government immunity, and we therefore do not address this
issue.
3
A more technical formulation of employer liability limits application of the term “respondeat
superior” only to those situations in which an employee is acting within the course and scope of
employment. Under this more technical formulation, ratification and authorization still may give rise
to employee liability but are simply deemed to arise from traditional agency principles. See Creel v.
N.C. Dep’t of Health & Human Servs., 152 N.C. App. 200, 202-03, 566 S.E.2d 832, 833 (2002) (citations
omitted). For our purposes, however, this distinction is not determinative here, and so, we apply a
broader brushstroke.
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and scope of his employment or, alternatively, on the basis Defendants ratified Chief
Rose’s statement.
First, however, as Plaintiff conceded in the trial court, his Complaint does not
contain any allegation Chief Rose was acting in the course and scope of his
employment when Chief Rose made the allegedly defamatory statement. See
Matthews, 205 N.C. App. at 281, 695 S.E.2d at 830 (“Generally, employers are liable
for torts committed by their employees who are acting within the scope of their
employment under the theory of respondeat superior.” (emphasis added) (citation
omitted)); see also Sanders, 197 N.C. App. at 319, 677 S.E.2d at 186 (holding to
withstand a motion to dismiss, the complaint “must state sufficient allegations to
satisfy the substantive elements of at least some recognized claim” (citation omitted)).
Second, our Court has explained: “To be within the scope of employment, an
employee, at the time of the incident, must be acting in furtherance of the principal’s
business and for the purpose of accomplishing the duties of his employment.” Troxler
v. Charter Mandala Center, 89 N.C. App. 268, 271, 365 S.E.2d 665, 668 (1988)
(citation omitted). “If an employee departs from that purpose to accomplish a purpose
of his own, the principal is not [vicariously] liable.” Id. (citation omitted); see also
BDM Invest. v. Lenhil, Inc., ___ N.C. App. ___, ___, 826 S.E.2d 746, 764 (2019)
(explaining “liability is not imposed on an employer when an employee engaged in
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some private matter of his own or outside the legitimate scope of his employment”
(citation and quotation marks omitted)).
Here, Plaintiff’s allegations establish Chief Rose made the statement
regarding the circumstances under which Plaintiff’s employment with WJPD ended
not in the context of Town or WJPD business but rather in the context of his support
of a candidate for the appointment of a new County Sheriff by the County Board, on
which Chief Rose served. As such, on its face, Plaintiff’s Complaint shows Chief
Rose’s allegedly defamatory text message was not “within the scope of his
employment” because he was “engaged in some private matter of his own [and]
outside the legitimate scope of his employment[.]” BDM Invest., ___ N.C. App. at ___,
826 S.E.2d at 764 (alteration in original) (citations and quotation marks omitted).
Therefore, where the purpose of Chief Rose’s defamatory statement was “to
accomplish a purpose of his own, the [Defendants are] not [vicariously] liable.”
Troxler, 89 N.C. App. at 271, 365 S.E.2d at 668 (citation omitted).
Moreover, our courts have previously held statements made by an employee
regarding a plaintiff’s discharge from employment after the plaintiff has been
discharged are not made within the course and scope of the employment and are not
attributable to the employer. Indeed, close to a century ago and relying on even
earlier cases, our Supreme Court in Strickland v. Kress explained, “owing to the
facility and thoughtless way that such words are not infrequently used by employees,
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they should not, perhaps, be imported to the company as readily as in more deliberate
circumstances; that is, they should not be so readily considered as being within the
scope of the agent’s employment.” 183 N.C. 534, 537, 112 S.E. 30, 31 (1922). In that
case, after a store manager fired the plaintiff, the plaintiff’s husband asked the
manager for an explanation, leading to the manager’s defamatory statements, which
were overheard by other employees. Id. at 538, 112 S.E. at 31. The Supreme Court
characterized the incident: “This was clearly a conversation between the two
individuals as to an event that had passed, and, as stated, could in no sense be
considered as within the course and scope of [the manager’s] employment, or as an
utterance by authority of the company, either express or implied.” Id. at 538, 112
S.E. at 31-32.
More recently, our Court has recognized the same principle on at least two
occasions. In Stutts v. Power Co., after the plaintiff’s discharge, a Duke Power
employee made statements the plaintiff was terminated from Duke Power for
dishonesty, including falsifying records. 47 N.C. App. 76, 80, 266 S.E.2d 861, 864
(1980). The plaintiff argued the issue of Duke Power’s liability for its employee’s
defamation should be submitted to the jury. Id. at 81, 266 S.E.2d at 865. Our Court
relied on Strickland to hold: “any remarks made by [the employee] in the months
after [the] plaintiff’s discharge, were, as a matter of law, not made within [the
employee’s] scope of employment and, consequently, not attributable to Duke Power.”
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Id. Then, in Gibson v. Mutual Life Insurance Co. of New York, our Court again
concluded statements made about a plaintiff after the plaintiff’s termination could
not be imputed to the corporate defendant. 121 N.C. App. 284, 288, 465 S.E.2d 56,
59 (1996) (“[A]ll of the statements were made after [the] plaintiff was terminated and
therefore, the alleged defamation cannot be imputed to [the corporate defendant].”
(citation omitted)). Consequently, in light of this prior precedent, in this case,
Plaintiff’s allegations of Chief Rose’s allegedly defamatory statement made years
after Plaintiff’s separation from employment with WJPD cannot serve as a basis for
the vicarious liability of Defendants because, as a matter of law, this statement was
not made in the course and scope of Chief Rose’s employment by the Town.
Likewise, Plaintiff’s argument he should be permitted to proceed against
Defendants on the theory Defendants allegedly ratified Chief Rose’s statement also
fails. Ratification is “the affirmance by a person of a prior act which did not bind him
but which was done or professedly done on his account, whereby the act, as to some
or all persons, is given effect as if originally authorized by him.” Espinosa v. Martin,
135 N.C. App. 305, 308, 520 S.E.2d 108, 111 (1999) (citations and quotation marks
omitted). Again, Plaintiff’s Complaint does not expressly invoke ratification but
rather appears to rest on his allegations Defendants owed him a “fiduciary
responsibility,” including the duty to investigate the truth of Chief Rose’s statement
and to require a correction or retraction of this statement addressing Chief Rose’s
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opposition to Plaintiff’s candidacy for County Sheriff. Plaintiff, however, offers no
authority to support the existence of such a duty. Further, the earlier precedent set
by Strickland, Stutts, and Gibson, supra, runs counter to the existence of such a duty.
See, e.g., Strickland, 183 N.C. at 538, 112 S.E. at 32 (holding statement “could in no
sense be considered . . . as an utterance by authority of the company, either express
or implied”). Thus, Plaintiff has not alleged any act by Chief Rose “done or
professedly done” on Defendants’ account. Espinoza, 135 N.C. App. at 308, 520 S.E.2d
at 111 (citations and quotation marks omitted).
Additionally, ratification requires “(1) that at the time of the act relied upon,
the principal had full knowledge of all material facts relative to the unauthorized
transaction, and (2) that the principal had signified his assent or his intent to ratify
by word or by conduct which was inconsistent with an intent not to ratify.”
Equipment Co. v. Anders, 265 N.C. 393, 400-01, 144 S.E.2d 252, 258 (1965) (citations
omitted). A failure to act or investigate may provide evidence of an employer’s
ratification of an employee’s wrongful act. See Brown v. Burlington Industries, Inc.,
93 N.C. App. 431, 437, 378 S.E.2d 232, 236 (1989) (recognizing “an omission to act”
in some circumstances may constitute a “course of conduct on the part of the principal
which reasonably tends to show an intention on his part to ratify the agent’s
unauthorized acts” (citation and quotation marks omitted)). However, here, in light
of our prior caselaw holding statements similar to the one made by Chief Rose outside
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the course and scope of his employment are not attributable to an employer, and
absent any independent duty to investigate or correct the statement, it follows the
employer’s failure to investigate or correct those statements is not conduct
inconsistent with an intent not to ratify. As such, Plaintiff’s Complaint is legally
insufficient to allege Defendants should be held liable on the basis of ratification.
Thus, Plaintiff’s Complaint fails to state a claim against Defendants for
defamation based on Chief Rose’s statement either under a theory Chief Rose was
acting in the course and scope of his employment or that Defendants ratified Chief
Rose’s statement. Consequently, the trial court did not err in granting Defendants’
Motion to Dismiss under Rule 12(b)(6).
Conclusion
Accordingly, for the foregoing reasons, we affirm the trial court’s Order
granting Defendants’ Motion to Dismiss.
AFFIRMED.
Judges STROUD and DIETZ concur.
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