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Boyce v. North Carolina State Bar

Court of Appeals of North Carolina

April 3, 2018

GORDON E. BOYCE, N.C. S.B. #0435, Plaintiff,
v.
NORTH CAROLINA STATE BAR, An Agency of the State of North Carolina, and Others of Interest, if any, Defendants.

          Heard in the Court of Appeals 7 February 2017.

          Appeal by Plaintiff from order entered 9 May 2016 by Judge Donald W. Stephens in Wake County No. 16 CVS 141 Superior Court.

          Gordon E. Boyce, for Plaintiff-Appellant.

          The North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for Defendant-Appellee.

          HUNTER, JR., ROBERT N., JUDGE.

         I. Introduction

         On 5 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.

         II. Factual and Procedural History

         Plaintiff 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 follows.

         The law 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.

         During 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' advertisement stated:

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.[1]

         Plaintiffs' 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.

         The 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.

         Plaintiffs 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.[2] Id. at 39, 568 S.E.2d at 904.[3]

         On 27 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. 7A-31."[4]

         Defendants 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).

         On 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 175.

         This 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.[5]

         On 7 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).[6]

         Following 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.[7]

         Fortunately 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"). ...


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