Tort/Negligence – Defamation – Libel Per Se – Judges – Bar Journal Article – Pro Se Litigant

Church v. Norelli (Lawyers Weekly No. 012-038-17, 18 pp.) (Valerie Zachary, J.) Appealed from Caldwell County Superior Court (W. Todd Pomeroy, J.) N.C. App. Unpub.

Holding: In an article in the North Carolina State Bar Journal, the defendant-judge gave enough details about a pro se claimant that he was allegedly identifiable as plaintiff; furthermore, plaintiff has sufficiently alleged the falsity of the article’s claim that plaintiff “failed to meet any portion of his monetary obligations and disregarded terms of the order relating to care of his children.”

We reverse the trial court’s order granting defendants’ motion to dismiss plaintiff’s defamation claim.

Plaintiff has alleged that the statements at issue are false, and we are required to accept this for purposes of evaluating the sufficiency of plaintiff’s complaint. Defendants contend that we should take “judicial notice” of our opinion in Church v. Church, 212 N.C. App. 419, 713 S.E.2d 790 (2011) (unpublished). However, because a motion under N.C. R. Civ. P. 12(b)(6) is decided on the basis of the pleadings and any attachments, this court has generally declined to take judicial notice of materials outside of the plaintiff‘s complaint.

Even if we were to consider Church, that decision upheld the defendant-judge’s finding that plaintiff was in contempt for failure to pay his ex-wife’s attorney’s fees. The sentence at issue, however, is not limited to attorney’s fees but expressly states that plaintiff had failed to “meet any portion” of his court-ordered obligations. Therefore, the fact that plaintiff was shown to be in arrears as to attorney’s fees does not establish the truth of defendant’s assertion that plaintiff had failed to meet “any portion” of his legal obligations.

Additionally, the article notes that the order required plaintiff to obtain psychological counseling, and the terms of the custody order “relating to care of his children” included, as stated in the article, “schedules for the children, rules for attending school events, availability of email addresses, and a host of other details….” Defendants have articulated no connection between the portion of defendant’s order which required plaintiff to obtain psychological counseling and his “disregard” of unspecified terms of the custody order, which included terms addressing everyday matters such as school and vacation schedules. The fact that defendant directed plaintiff to obtain counseling does not establish the truth of the statement that he had disregarded “terms of the order relating to care of his children.”

It is for the jury to decide whether the statements were defamatory per se.

Reversed.