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MB Realty Group, Inc. v. Gaston County Board of Education

United States District Court, W.D. North Carolina, Charlotte Division

May 14, 2019



          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on Defendants Carstarphen Family Foundation, The Stowe Foundation, Inc., Tracy Philbeck, Gaston County, Gaston County Board of Education, and Catherine Roberts' Motions for Summary Judgment (Docs. Nos. 99, 101, 102, 104, 108). Plaintiffs responded to the motions, (Docs. Nos. 113, 114, 115, 116, 117), Defendants replied, (Docs. Nos. 118, 120, 121, 123, 124), and parties presented argument at a hearing before the undersigned on April 10, 2019. This matter is now ripe for review. For the reasons stated below, Defendants Gaston County, Gaston County Board of Education, Tracy Philbeck, and Catherine Roberts' Motions for Summary Judgment (Docs. Nos. 101, 102, 104, 108) are GRANTED. Defendants Carstarphen Family Foundation and The Stowe Family Foundation, Inc.'s Motion for Summary Judgment (Doc. No. 99) is GRANTED in part and DENIED in part.

         I. BACKGROUND

         On October 3, 2016, MBRG entered into a written contract to purchase the 78-acre subject property from Carstarphen Family Foundation and The Stowe Family Foundation, Inc. (“The Foundations”) for $4, 704, 506 that did not contain a “time is of the essence” clause. (Doc. No. 100, p. 3). The closing date, with all extensions was May 2, 2017. Id. The Foundations hired Robert Clay (“Bob Clay”) of Coldwell Banker Commercial MECA (“MECA”) to list and sell the property. Id. Matt Beckham (“Beckham”) met with the Gaston County Board of Education (“the GCBOE”) attorney Kevin Bringewatt (“Bringewatt”) to structure a deal for the GCBOE to purchase half of the property. (Doc. No. 107, p. 3). That deal did not come to fruition and the GCBOE agreed to purchase the entire 78-acre lot. Id. Bringewatt and Beckham met to structure the deal, which did not include Beckham as the GCBOE's broker. Id. at 3-4.

         On January 15, 2017, MB Realty Group, Inc. (“MBRG”) and the GCBOE finalized a contract that provided that the final purchase price was subject to Gaston County approval. Id. at 4. The contract included a feasibility study period and a closing deadline of February 27, 2017. Id. The closing deadline was extended to March 31, 2017, in exchange for a nonrefundable $40, 000 payment by the GCBOE. Id. When Gaston County failed to approve the purchase price, the contract between the GCBOE and MBRG terminated. Id.; (Doc. No. 103, p. 2).

         On March 23, 2017, The Foundations sent a letter to MBRG confirming the dates of their contract for MBRG to buy the subject property, including the outside closing date of May 2, 2017, and asking Plaintiffs to confirm. (Doc. No. 100, p. 4). Plaintiffs never contacted The Foundations to close. Id. On May 3, 2017, The Foundations sent a letter to MBRG extending the closing date until May 16, 2017. Id. at 5. Plaintiffs never contacted The Foundations providing a date to close. Id. On May 5, 2017, The Foundations contacted Gaston County about purchasing the subject property given that it appeared MBRG may not close. (Doc. No. 107, p. 5). The contract for MBRG to purchase the subject property terminated on May 16, 2017, and The Foundations sent a letter to MBRG that day to terminate the contract. (Doc. No. 100, p. 5). The Foundations put the property on the market and began new negotiations with Gaston County and the GCBOE. Id. On July 10, 2017, approximately two months after the termination of the contract between MBRG and The Foundations, The Foundations entered into a new agreement with the GCBOE to purchase the subject property that Gaston County approved. Id. Plaintiffs subsequently brought the present lawsuit. Defendants now move for summary judgment on all of Plaintiffs' remaining claims.


         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact in the case. Fed.R.Civ.P. 56(a). A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the burden shifts and the non-moving party must then “set forth specific facts showing that there is a genuine issue for trial.” See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)).

         Simply “rest[ing] upon the mere allegations or denials of [a plaintiff's] pleadings” is insufficient to survive a properly made and supported motion for summary judgment. Id. at 586 n.11. Instead, the non-moving party must adduce affirmative evidence, by means of affidavits or other verified evidence, showing that a genuine dispute of material fact exists. See id. at 586-87. “Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).

         III. ANALYSIS

         A. Libel Per Se[1]

         Under North Carolina law, libel per se is “a publication . . . which, when considered alone without innuendo, colloquium, or explanatory circumstances . . . tends to impeach a person that person's trade or profession.” Renwick v. News and Observer Pub. Co., 312 S.E.2d 405, 408-09 ( N.C. 1984) (emphasis added) (citing Flake v. Greensboro News Co., 195 S.E. 55, 60 (1938)). To be libelous per se, defamatory words “must be susceptible of but one meaning and of such a 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 the public hatred, contempt or ridicule, or cause him to be shunned and avoided.” Flake, 195 S.E. at 60 (emphasis added). “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.” Id.

         Here, the Court finds that the emails published by Philbeck, (Doc. No. 101-2, pp. 6, 29-30), and Roberts, (Doc. No. 108-7), do not rise to a level of libel per se because the emails, stripped of all innuendo, explanatory circumstances, and insinuations regarding what the statement impute to Beckham, fail to assert any illegal or wrongful activity by Beckham. See Diagnostic Devices, Inc. v. Doctor Diabetic Supply, Inc., 3:09-cv-135-GCM, 2010 WL 143094, at *2 (W.D. N.C. Jan. 11, 2010) (“In a business context, a statement that does not ‘assert any illegal or wrongful activity' by the plaintiff, generally does not rise to the level of defamation recognized under North Carolina law.”). Roberts' expression of opinion cannot serve as a basis of Beckham's libel per se claim. See Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 185 (4th Cir. 1998) (citing Moldea v. New York Times Co., 15 F.3d 1137, 1144-45 (D.C. Cir. 1994) (“Because the reader understands that such supported opinions represent the writer's interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation.”)); Daniels v. Metro Magazine Holding Co., LLC., 634 S.E.2d 586, 590 ( N.C. Ct. App. 2006) (citations omitted) (Pure expressions of opinion are protected). Moreover, even if the emails contained statements that could be read to suggest a defamatory meaning, because the statements could also be read to suggest a nondefamatory interpretation, it could not be libelous per se. See Flake, 195 S.E. at 60; Oates, 169 S.E. at 871.

         Finally, even assuming arguendo the emails are libelous, Philbeck and Roberts are entitled to qualified immunity. See Presnell v. Pell, 260, S.E.2d 611, 614 ( N.C. 1979); see, e.g., Kling v. Harris Teeter Inc., 338 F.Supp.2d 667, 673 (W.D. N.C. 2002), aff'd, 86 Fed.Appx. 662 (4th Cir. 2004) (holding that when an otherwise defamatory communication is made in furtherance of a political duty, the declarant is entitled to qualified immunity unless actual malice is shown). Apart from bare assertions and argument, ...

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