GORDON E. BOYCE, N.C. S.B. #0435, Plaintiff,
NORTH CAROLINA STATE BAR, An Agency of the State of North Carolina, and Others of Interest, if any, Defendants.
in the Court of Appeals 7 February 2017.
by Plaintiff from order entered 9 May 2016 by Judge Donald W.
Stephens in Wake County No. 16 CVS 141 Superior Court.
E. Boyce, for Plaintiff-Appellant.
North Carolina State Bar, by Deputy Counsel David R. Johnson
and Counsel Katherine Jean, for Defendant-Appellee.
HUNTER, JR., ROBERT N., JUDGE.
January 2016, Gordon E. Boyce ("Plaintiff") filed a
declaratory judgment action pursuant to N.C. Gen. Stat.
§ 1-254 et seq. seeking a "declaration of
the right, status or other relations" between Plaintiff
and the North Carolina State Bar ("Defendant"). The
trial court dismissed Plaintiff's request for declaratory
judgment on two grounds: (1) Plaintiff lacks standing to
bring this complaint under Rule 12(b)(1) of the North
Carolina Rules of Civil Procedure, and therefore the court
lacks subject matter jurisdiction; and (2) the complaint
"presents no viable case or controversy" under Rule
12(b)(1) of the Rules of Civil Procedure. We reverse in part
and affirm in part, as discussed herein.
Factual and Procedural History
filed a lengthy complaint outlining the history of defamation
litigation between the Plaintiff, Roy Cooper and others. A
brief summary of the context of this predicate litigation
firm of Boyce and Isley, PLLC, and its members G. Eugene
Boyce, R. Daniel Boyce, Philip R. Isley and Laura B. Isley
("Plaintiffs") are the original Plaintiffs in this
action. Boyce & Isley, PLLC v. Cooper, 153
N.C.App. 25, 26-27, 568 S.E.2d 893, 896 (2002) (hereinafter
Boyce I). On 2 November 2000, Plaintiffs filed a
complaint with the State Board of Elections against Roy
Cooper, III, the Democratic nominee for the Office of
Attorney General of North Carolina, his campaign committee,
and members of his campaign staff ("Defendants").
Id. at 27, 568 S.E.2d at 896. Plaintiffs'
complaint alleged defendant's political advertisement
violated N.C. Gen. Stat. § 163-274(8), which prohibits
"any person to publish . . . derogatory reports with
reference to any candidate in any primary or election,
knowing such report to be false or in reckless disregard of
its truth or falsity[.]" N.C. Gen. Stat. §
163-274(8) (2001). Id. at 27, 568 S.E.2d at 896.
this action's pendency before the State Board of
Elections, Plaintiffs filed a similar complaint against
Defendants in Wake County Superior Court. Id. at 27,
568 S.E.2d at 896. Here, Plaintiffs alleged Defendants
published a false and fraudulent political television
advertisement. Id. at 27, 568 S.E.2d at 896.
Plaintiffs alleged Defendants' advertisement defamed R.
Daniel Boyce ("Dan Boyce"), the Republican nominee
for the Office of Attorney General of North Carolina.
Id. at 27, 568 S.E.2d at 896. Plaintiffs also
alleged Defendants' advertisement defamed the member
attorneys of the Boyce & Isley law firm. Id. at
27, 568 S.E.2d at 896. The audio portion of Defendants'
I'm Roy Cooper, candidate for Attorney General, and I
sponsored this ad. . . . .
Dan Boyce-his law firm sued the state, charging $28, 000 an
hour in lawyer fees to the taxpayers.
The Judge said it shocks the conscience.
Dan Boyce's law firm wanted more than a police
officer's salary for each hour's work.
Dan Boyce, wrong for Attorney General.
Id. at 27, 568 S.E.2d at 897.
complaint alleged the above-quoted advertisement was
defamatory per se and constituted unfair and
deceptive trade practices. Id. at 27, 568 S.E.2d
897. The complaint also alleged Defendants conspired to
violate N.C. Gen. Stat. § 163-274(8). Id. at
27, 568 S.E.2d 897. Plaintiffs requested the trial court
issue a declaratory judgment in regard to Defendants'
alleged violation of N.C. Gen. Stat. § 163-274(8).
Id. at 28, 568 S.E.2d 897.
State Board of Elections dismissed Plaintiffs' complaint
on 20 December 2000. Id. at 28, 568 S.E.2d at 897.
Defendants subsequently filed a motion requesting the trial
court to dismiss Plaintiffs' complaint on all claims
pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure. Id. at 28, 568 S.E.2d at 897. In an
order filed 6 April 2001, Superior Court Judge James C.
Spencer granted Defendants' motion to dismiss all claims.
Id. at 26, 568 S.E.2d at 896.
timely appealed to this Court, and this Court heard the
action on 23 April 2002. Id. at 26, 568 S.E.2d at
896. Plaintiffs contended the trial court erred in dismissing
their claims for defamation, id. at 28, 568 S.E.2d
at 897, and unfair and deceptive trade practices.
Id. at 35; 568 S.E.2d at 901. On cross-appeal,
Defendants contended the trial court erred in failing to take
judicial notice of the Board of Elections's order
dismissing Plaintiffs' complaint, and of various
newspaper articles concerning the political campaign.
Id. at 37, 568 S.E.2d at 903. In an opinion filed on
17 September 2002, this Court concluded Plaintiffs'
allegations of defamation and unfair and deceptive trade
practices sufficiently stated a claim upon which relief could
be granted. Id. at 39, 568 S.E.2d at 904. This Court
also concluded the political advertisement was defamatory
per se. Id. at 32, 568 S.E.2d at 899. Finally, this
Court held the trial court erred in granting Defendants'
Rule 12(b)(6) motion to dismiss and reversed the trial
court's order. Id. at 39, 568 S.E.2d at
November 2002, the North Carolina Supreme Court granted
Defendants' motion for temporary stay "pending
determination of Defendants' petitions for discretionary
review." Boyce & Isley, PLLC v. Cooper, 356
N.C. 610, 574 S.E.2d 466 (2002). On 1 May 2003, the North
Carolina Supreme Court ordered the stay dissolved. Boyce
& Isley, PLLC v. Cooper, 357 N.C. 163, 580 S.E.2d
361 (2003). Also on 1 May 2003, the North Carolina Supreme
Court denied Defendants' petition for "Writ of
Supercedeas of the judgment of the Court of Appeals, "
and dismissed Defendants' appeal from this Court pursuant
to N.C. Gen. Stat. § 7A-30 (constitutional question)
ex mero motu. Id. at 163, 580 S.E.2d at
361. Finally, on 1 May 2003, the North Carolina Supreme Court
denied Defendants' alternative petition for discretionary
review of "Constitutional Issues of the decision of the
North Carolina Court of Appeals pursuant to G.S.
appealed to the Supreme Court of the United States, and on 20
October 2003, that Court denied Defendants' petition for
writ of certiorari. Cooper v. Boyce, 540 U.S. 965,
124 S.Ct. 431, 157 L.Ed.2d 310 (2003).
remand, Defendants answered Plaintiffs' complaint, raised
constitutional defenses and moved for judgment on the
pleadings under Rule 12(c) of the North Carolina Rules of
Civil Procedure. Boyce and Isley, PLLC v. Cooper,
169 N.C.App. 572');">169 N.C.App. 572, 573, 611 S.E.2d 175, 176 (2005)
(hereinafter "Boyce II"). Chief Justice
Lake of the North Carolina Supreme Court designated this
action as exceptional, pursuant to Rule 2.1 of the General
Rules of Practice. Id. at 573, 611 S.E.2d at 176.
Chief Justice Lake assigned Superior Court Judge John B.
Lewis, Jr., ("Judge Lewis") to the action.
Id. at 573, 611 S.E.2d at 176. The trial court
denied Defendants' motion for judgment on the pleadings
on 22 September 2003. Id. at 573, 611 S.E.2d at 176.
Defendants appealed to this Court, and this Court heard the
matter on 25 August 2004. Id. at 573, 611 S.E.2d at
Court concluded Defendants' appeal was interlocutory
since the trial court's denial of Defendants' motion
to dismiss the case did not constitute a final judgment.
Id. at 574, 611 S.E.2d at 176. This Court also
determined Defendants failed to show how a substantial right
would be lost if they did not immediately appeal the trial
court's ruling. Id. at 578, 611 S.E.2d at 179.
This Court dismissed Defendants' interlocutory appeal.
Id. at 578, 611 S.E.2d at 179.
June 2011, Defendants filed a petition for discretionary
review with the North Carolina Supreme Court. The North
Carolina Supreme Court denied Defendants' petition on 9
November 2011. Boyce & Isley, PLLC v. Cooper,
365 N.C. 365, 718 S.E.2d 403 (2011).
the establishment of the validity of the complaint, there
were additional appeals regarding discovery matters and
litigation issues which are reported in detail in the
following cases which are not outlined herein but are cited
so to note the nature of this litigation.
for all concerned, after fourteen years of litigation, the
parties settled this controversy. The current complaint for
declaratory judgment alleges Defendant Cooper, as part of the
settlement, admitted he made false assertions in the 2000
political advertisements. Plaintiff Gordon E. Boyce
("Plaintiff"), acting pursuant to Rule 8.3 of the
North Carolina Rules of Professional Conduct, reported
Cooper's unethical statements to Defendant North Carolina
State Bar ("State Bar"). ...