Volume 134 — North Carolina Court of Appeals Reports

<bold>1. Libel and Slander — libel per se — infamous crime — failure to</bold> <bold>state a claim</bold> <block_quote> The trial court did not err by dismissing a defamation action for failure to state a claim upon which relief could be granted where plaintiff alleged statements by defendant that plaintiff was not a resident of the town in which he was running for office, a felony, but there is a need for explanatory circumstances for the listener or reader to know that plaintiff had committed an infamous crime. Any interpretation of the comments as given does not rise to the level of an actionable defamation claim.</block_quote> <bold>2. Libel and Slander — libel per quod — town board candidate —</bold> <bold>not resident in town — failure to state a claim</bold> <block_quote> The trial court correctly dismissed a defamation action for failure to state a claim upon which relief could be granted where plaintiff alleged statements by defendant that plaintiff was not a resident of the town in which he was running for office. The damage plaintiff claims to have suffered is the loss of a seat on the town board; in essence, a suit to recover damages for a lost election. It is not the place of the Court of Appeals to engage in a post-election analysis of the decision made by the voters.</block_quote>

<bold>1. Corporations — stock buyout agreement — determination of</bold> <bold>adjusted book value</bold> The trial court did not err by granting summary judgment for plaintiff in an action to force specific compliance with a stock buyout agreement against a terminated employee. Where the value of a closely held corporation is determined by the use of its balance sheet as directed by a buyout agreement and is calculated by the accounting firm normally servicing that corporation in accordance with the terms of the agreement, the value determined by that accounting firm is presumptively correct in the absence of mathematical error, fraud, or evidence of a failure to follow generally accepted accounting practices. <bold>2. Corporations — stock buyout agreement —</bold> <bold>unconscionability</bold> The trial court did not err by granting summary judgment for plaintiff in an action to force compliance with a stock buyout agreement against a terminated employee where defendant contended that enforcement of the agreement would be unconscionable. A trial court may decline to specifically enforce a stock restriction agreement entered into pursuant to N.C.G.S. § <cross_reference>55-6-27</cross_reference> if there has been a change of circumstances since the execution of the agreement such that enforcement would be unconscionable under the particular circumstances, using the settled definition of unconscionability from contract law. Plaintiff here forecast a reasonable business purpose in terminating defendant, and there was no showing by defendant that his discharge was for a wrongful purpose, even assuming that defendant was promised that he would not be prematurely discharged in order to deprive him of the full value of his stock. Finally, defendant freely entered into the agreement which set out the adjusted book value he now contests as unconscionable. <bold>3. Corporations — stock buyout agreement — timing</bold> <bold>of tender</bold> The trial court did not err by granting summary judgment for plaintiff in action to enforce a stock buyout agreement against a terminated employee where the employee, defendant, argued that he was not required to immediately tender his stock options<page_number>Page 191</page_number> and that he could wait until the options were fully vested. The agreement's 90-day closing period expressed the parties' intent; moreover the adjusted book value was to be determined by reference to plaintiffs financial statement at the end of its last fiscal year prior to the date of defendant's termination. <bold>4. Corporations — stock buyout agreement —</bold> <bold>unconscionability — change in tax reporting</bold> The trial court did not err by granting summary judgment for plaintiff in an action to enforce a stock buyout agreement against a terminated employee where the employee contended that a company decision to take a business expense deduction based on a loss arising from employee stock options caused defendant to incur a tax liability and made the stock purchase agreement unconscionable. The Court of Appeals declined to rewrite the buyout agreement; furthermore, defendant was not prejudiced by plaintiff's decision.

<bold>1. Appeal and Error — appealability — partial summary</bold><bold>judgment — qualified immunity — substantial right</bold> Although partial summary judgment is not immediately appealable in most circumstances, a substantial right is affected when qualified immunity is pled as a defense to summary judgment and such an interlocutory order is immediately appealable. <bold>2. Statute of Limitations — voluntary dismissal — new claims</bold> The trial court did not err by granting summary judgment for defendants based upon the statute of limitations in an action arising from a confrontation at the scene of an automobile accident where plaintiffs' first complaint was filed within the statute of limitations but alleged only a section 1983 claim and a claim for loss of consortium and plaintiffs did not assert their additional claims until more than four years after the incident, following a voluntary dismissal and a new filing. Although the claims arose from the same events, defendants were not placed on notice that they would be asked to defend these claims within the time required by the statute of limitations.<page_number>Page 295</page_number> <bold>3. Damages — punitive — action against police officer — capacity</bold> The trial court correctly granted summary judgment in favor of a police officer in his official capacity on a punitive damages claim in a section 1983 action, but erred by granting summary judgment for the officer in his individual capacity. Punitive damages may not be awarded in a section 1983 action against either a municipality or a municipal officer acting in an official capacity. <bold>4. Civil Rights — action against police officer — alleged unreasonable</bold><bold>seizure and due process violation — material issue of fact</bold> In an action against a police officer in his individual capacity arising from a confrontation at an automobile accident, the trial court correctly denied the defendants' motion for summary judgment on the issues of section 1983 violations and loss of consortium where the officer claimed qualified immunity. There are material issues of fact as to defendant's conduct and the actions of plaintiff. <bold>5. Police Officers — 1983 action — official capacity</bold> A municipality may be sued for section 1983 violations only if there are allegations that the unconstitutional action implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers and the municipality may not be held liable on the sole basis of respondeat superior. In this case, there was no valid claim against the City or against the police officer in his official capacity.