United States District Court, W.D. North Carolina, Charlotte Division
MB REALTY GROUP, INC. and MATT BECKHAM, Plaintiffs,
THE GASTON COUNTY BOARD OF EDUCATION, GASTON COUNTY, CARSTAPHEN FAMILY FOUNDATION, THE STOWE FOUNDATION, INC., CATHERINE ROBERTS, and TRACY PHILBECK, Defendants.
D. Whitney Chief United States District Judge
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.
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.
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).
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.
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.
“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).
Libel Per Se
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.”
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.
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, ...