NO.

COA08-1333

NORTH CAROLINA COURT OF APPEALS

Filed: 5 May 2009

MERRITT, FLEBOTTE, WILSON,

WEBB & CARUSO, PLLC, A North
Carolina Limited Liability
Corporation,
Plaintiff,

v. Durham county
No. 07 CVS 3697
AARON C. HEMMINGS, KELLY A.
STEVENS, and HEMMINGS & STEVENS,

Court of Appeals
P.L.L.C., A North Carolina Limited
Liability Corporation,
Defendants and
Third Party Plaintiffs,

v.

PRE-PAID LEGAL SERVICES, INC.,

Slip Opinion
JAMES MERRITT, DANIEL R. FLEBOTTE,
JOSEPH M. WILSON, JOY RHYNE WEBB,
and HEATHER CARUSO,
Third Party Defendants.

Appeal by Defendants/Third Party Plaintiffs from judgment

entered 9 June 2008 by Judge Ronald L. Stephens in Durham County

Superior Court. Heard in the Court of Appeals 24 March 2009.

Glenn, Mills, Fisher & Mahoney, P.A., by William S. Mills, for

Plaintiff-Appellees/Third Party Defendant-Appellees.

Crawford & Crawford, LLP, by Robert O. Crawford, III, and

Heather J. Williams; and Hemmings & Stevens, P.L.L.C., by
Aaron C. Hemmings and Kelly A. Stevens, for Defendant-
Appellants/Third Party Plaintiff-Appellants.

BEASLEY, Judge.

Defendants/Third Party Plaintiffs (Aaron C. Hemmings, Kelly A.

Stevens, and Hemmings & Stevens, P.L.L.C.) (hereafter Defendants)

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appeal from an order denying their motion to compel discovery and

granting summary judgment in favor of Plaintiff-Appellees/Third

Party Defendant-Appellees (Merritt, Flebotte, Wilson, Webb &

Caruso, PLLC; Pre-Paid Legal Services, Inc., James Merritt, Daniel

R. Flebotte, Joseph M. Wilson, Joy Rhyne Webb, and Heather Caruso)

(hereafter Plaintiffs). We affirm.

The relevant facts may be summarized as follows: Defendants

Aaron Hemmings and Kelly Stevens are attorneys who are licensed to

practice law in North Carolina. They previously were associates at

the firm of Browne, Flebotte, Wilson & Webb, (Brown, Flebotte) the

predecessor of Plaintiff law firm Merritt, Flebotte, Wilson, Webb

& Caruso (Merritt, Flebotte). In September 2005 Hemmings and

Stevens left Brown, Flebotte to start their own law practice

(Hemmings & Stevens). Defendants kept some former clients after

they left Plaintiff law firm, and disputes arose among the parties

about division of attorney’s fees and reimbursement of client costs

that had been advanced by Brown, Flebotte. These disagreements led

to litigation, which ended on 24 February 2006, when the parties

executed a settlement agreement that resolved the parties’ claims

and counterclaims, addressed disbursement of fees and repayment of

costs, and provided that its terms would remain confidential and

that the parties would not “intentionally or knowingly make any

false statements about each other or statement[s] which would be

considered defamatory, or injurious to the reputation of the other

parties.”
 -3-

On 11 June 2007, Plaintiffs filed a new lawsuit against

Defendants, asserting that Defendants had failed to pay Plaintiffs

the money owed under the settlement agreement, and had improperly

disbursed attorney’s fees to themselves. Plaintiffs sought an

accounting of the attorney’s fees received in cases covered by the

settlement agreement, damages for breach of contract, and an

injunction requiring Defendants to retain in trust the fees and

costs for cases covered by the settlement agreement.

On 24 July 2007, Defendants filed an answer denying the

material allegations of Plaintiffs’ complaint and asserting that

Plaintiffs’ “substantial and material” breaches of the parties’

contract excused their non-performance and refusal to make payments

owed under the settlement agreement. With their answer, Defendants

also filed a counterclaim against Plaintiffs for breach of

contract, slander per se, and invasion of privacy or

misappropriation of likeness. Defendants alleged: (1) that after

Defendants left Plaintiff law firm, the Plaintiffs’ website

continued to list Defendants as attorneys with the firm; (2) that

Plaintiffs had made a “demand” for repayment of “fraudulent

expenses”, and; (3) that Plaintiffs had made “false and defamatory”

statements about Defendants.

In addition, Defendants filed a third party complaint against

James Merritt, Daniel R. Flebotte, Joseph M. Wilson, Joy Rhyne

Webb, Heather Caruso, and Pre-Paid Legal Services, Inc. The third

party complaint made essentially the same assertions as the

counterclaim, and sought similar relief. Defendants later

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dismissed their claims against Pre-Paid Legal Services, which is

not a party to this appeal. Defendants also moved for dismissal of

Plaintiffs’ claims for insufficiency of service of process, failure

to state a claim for relief, previous dismissal of the same claims,

false and scandalous allegations, res judicata and collateral

estoppel; their motions to dismiss were denied by the trial court

on 11 September 2007.

On 26 September 2007 Plaintiffs filed a reply to Defendants’

counterclaim and an answer to Defendants’ third party complaint.

Plaintiffs denied the material allegations, asserted defenses, and

moved for dismissal of Defendants’ claims. On 28 March 2008

Defendants filed a motion to compel discovery, seeking an order

compelling Pre-Paid Legal Services to respond to Defendants’

interrogatories and requiring Defendant Joy Webb to answer

questions about the firing of an employee. On 16 May 2008

Plaintiffs filed a motion for summary judgment on all claims and

counterclaims.

On 9 June 2008 the trial court entered an order granting

Plaintiffs’ motions for summary judgment and denying Defendants’

motion to compel discovery. The order granted summary judgment in

favor of Plaintiffs, ordered Defendants to pay $256,834 for

attorney’s fees and $17,642.76 for costs advanced, and dismissed

all of Defendants’ counterclaims, defenses, and third party claims

against Plaintiffs. Defendants have appealed the denial of their

motion to compel discovery, the dismissal of their claims against

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Plaintiffs, and the entry of summary judgment in favor of

Plaintiffs.

Standard of Review

Summary judgment is properly granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule

56(c)(2007). “The purpose of the rule is to avoid a formal trial

where only questions of law remain and where an unmistakable

weakness in a party's claim or defense exists. . . . ‘[A]n issue

is genuine if it is supported by substantial evidence,’ which is

that amount of relevant evidence necessary to persuade a reasonable

mind to accept a conclusion. . . . ‘[A]n issue is material if the

facts alleged would constitute a legal defense, or would affect the

result of the action, or if its resolution would prevent the party

against whom it is resolved from prevailing in the action.’”

Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d

118, 123-24 (2002) (quoting DeWitt v. Eveready Battery Co., 355

N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of

Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972))

(citations omitted).

“The moving party bears the initial burden of coming forward

with a forecast of evidence tending to establish that no triable

issue of material fact exists.” Briley v. Farabow, 348 N.C. 537,

543, 501 S.E.2d 649, 653 (1998) (citation omitted). “The movant
 -6-

may meet this burden by proving that an essential element of the

opposing party's claim is nonexistent, or by showing through

discovery that the opposing party cannot produce evidence to

support an essential element of his claim or cannot surmount an

affirmative defense which would bar the claim.” Collingwood v.

G. E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427

(1989) (citation omitted). “When a motion for summary judgment is

made and supported as provided in this rule, an adverse party may

not rest upon the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine issue

for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2007).

“When considering a motion for summary judgment, the trial

judge must view the presented evidence in a light most favorable to

the nonmoving party.” Dalton v. Camp, 353 N.C. 647, 651, 548

S.E.2d 704, 707 (2001) (citations omitted). “All inferences of

fact must be drawn against the movant and in favor of the

nonmovant.” Roumillat v. Simplistic Enterprises, Inc., 331 N.C.

57, 63, 414 S.E.2d 339, 342 (1992) (citations omitted).

“Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.” Rule 56(e).

“A verified complaint may be treated as an affidavit if it (1) is

made on personal knowledge, (2) sets forth such facts as would be

admissible in evidence, and (3) shows affirmatively that the

 -7-

affiant is competent to testify to the matters stated therein.”

Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972)

(citations omitted).

“Our Supreme Court has stated that a mediated settlement

agreement constitutes a valid contract between the settling parties

which is ‘governed by general principles of contract law.’”

McClure Lumber Co. v. Helmsman Constr., Inc., 160 N.C. App. 190,

197, 585 S.E.2d 234, 238 (2003) (quoting Chappell v. Roth, 353 N.C.

690, 692, 548 S.E.2d 499, 500 (2001)). In resolving the issues

raised on appeal, we treat the settlement agreement as a contract.

__________________

Defendants argue first that the trial court erred by granting

summary judgment in favor of Plaintiffs on the parties’ claims and

counterclaims for breach of contract. We disagree.

As discussed above, “[t]he party moving for summary judgment

has the burden of showing that there is no triable issue of

material fact.” Nicholson v. American Safety Utility Corp., 346

N.C. 767, 774, 488 S.E.2d 240, 244 (1997) (citations omitted). “If

the movant demonstrates the absence of a genuine issue of material

fact, the burden shifts to the nonmovant to present specific facts

which establish the presence of a genuine factual dispute for

trial.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576 (2008) (citation omitted).

In the instant case, Defendants do not dispute that they have

failed to pay the full amount of attorney’s fees due to Plaintiffs

under the terms of the contract. Defendants assert that their

 -8-

nonperformance is excused by Plaintiffs’ substantial and material

breaches of the contract. Defendants contend that they presented

evidence of three breaches of the contract. With respect to each

of these we conclude that (1) Plaintiffs supported their summary

judgment motion with evidence showing that Defendants could not

prove that there had been a breach of contract, and; (2) Defendants

failed to produce evidence showing any issue of material fact.

Preliminarily, we address the scope of our review. In their

answer and counterclaim to Plaintiffs’ complaint, Defendants

asserted that Plaintiffs had materially and substantially breached

the parties’ settlement agreement by breaching the contract’s non-

disparagement clause and by making a fraudulent demand for expense

payments. At the summary judgment hearing, Defendants relied on

the same allegations. On appeal Defendants again argue that

Plaintiffs breached the contract by violating the non-disparagement

clause and by demanding expenses that were not actually covered

under the contract. We will address Defendants’ arguments on these

issues, which were asserted in Defendants’ complaint and argued to

the trial court.

However, on appeal Defendants also argue that Plaintiffs

violated the parties’ contract by “failing to timely accept or

reject payments under the contract” and by “failing to act in good

faith under the contract.” These alleged breaches of contract were

neither asserted in Defendants’ pleadings nor argued before the

trial court. The Supreme Court “has long held that issues and

theories of a case not raised below will not be considered on

 -9-

appeal[.]” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of

Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) (citation

omitted). See also N.C.R. App. P. 10(b)(1) (“to preserve a

question for appellate review, a party must have presented to the

trial court a timely request, objection or motion, stating the

specific grounds for the ruling the party desired the court to make

. . . [and] obtain[ed] a ruling upon the party’s request, objection

or motion”). Accordingly, we do not consider these arguments.

Defendants contend that the evidence raised genuine issues of

material fact about whether the Plaintiffs violated a “non-

disparagement” clause in the settlement agreement. This clause

states that “the parties agree that they will not intentionally or

knowingly make any false statements about each other or

statement[s] which would be considered defamatory, or injurious to

the reputation of the other parties.” Accordingly, the clause does

not apply to every “disparaging” remark, but only to statements of

parties, and only if the party intentionally (1) makes a false

statement about another party, or (2) makes a statement about

another party that is defamatory or injurious to the party’s

reputation. “‘Presumably the words which the parties select [for

inclusion in a contract are] deliberately chosen and are to be

given their ordinary significance.’” Wise v. Harrington Grove

Cmty. Ass'n, 357 N.C. 396, 405, 584 S.E.2d 731, 738 (2003) (quoting

Briggs v. American & Efird Mills, Inc., 251 N.C. 642, 644, 111

S.E.2d 841, 843 (1960)).

 -10-

Defendants assert that Brad Rhyne, the office administrator

for Plaintiff law firm, violated the clause in a conversation with

Adrienne Lopez, a social acquaintance of his. Lopez’s deposition

testimony may be summarized in pertinent part as follows: Lopez

previously dated Aaron Hemmings. She knew Rhyne as a casual social

acquaintance whom she sometimes saw at a bar or restaurant. Lopez

recalled a conversation with Rhyne that took place at a Raleigh

bar, “White Collar Crimes,” between 9:00 p.m. and midnight on a

night in February or March of 2006. Lopez had gone to the bar with

friends. When she noticed that Rhyne was there, she approached him

and they talked for about ten minutes. During the conversation,

Rhyne commented that “Aaron had changed” and was “untrustworthy”

and made another remark about which Lopez recalled only that it

“suggested” that “Aaron did something wrong or committed some sort

of crime when he left the firm.”

Defendants assert that Plaintiffs are liable for Rhyne’s late

night comments at the White Collar Crimes bar, on the grounds that

Rhyne was acting as an agent of Plaintiffs’ law firm. However, it

is axiomatic that a “principal is not liable when the agent is

about his own business, or is acting beyond the scope and range of

his employment. This is true irrespective of the intent of the

agent.” Snow v. Equitable distribution Butts, 212 N.C. 120, 123,

193 S.E. 224, 227 (1937).

In support of their summary judgment motion, Plaintiffs

submitted the affidavits of James Merritt and Joy Rhyne Webb, who
 -11-

are members of Plaintiff law firm. Regarding Rhyne’s employment

and the scope of his authority, each averred that:

Brad Rhyne is an employee of the Merritt

Flebotte [law firm.] He is the firm’s office
administrator. . . . He is not authorized to
speak on behalf of the law firm of Merritt
Flebotte except to employees in his role as
human resource manager and to vendors of
supplies and services to the firm. Other than
those situations he has no authority to speak
on behalf of the firm. Nor does he have the
authority to sign checks for the firm or incur
financial obligations. . . . [T]o the extent
that Brad Rhyne spoke with Ms. Lopez about
Aaron Hemmings at a bar in Raleigh during
evening hours, it was not within the course
and scope of his employment to have such a
conversation.

“At this point, in our opinion, movant’s evidence that [Rhyne]

was not acting as the agent of the [Plaintiff law firm] within the

scope of his authority at the times complained of carried the

burden placed upon it by Rule 56(c) by showing the absence of one

of the essential elements of [Defendants’] claim.” Zimmerman v.

Hogg & Allen, 286 N.C. 24, 27-28, 209 S.E.2d 795, 803 (1974).

Defendants offer no evidence suggesting that Plaintiffs’

description of Rhyne’s job was inaccurate; nor do they contend that

his conversation with Lopez might fall within his job description.

Rather, Defendants assert that “Rhyne was the plaintiff’s office

administrator. As such, he was an agent of [Plaintiff law firm].

As their agent he was bound by the contractual non-disparagement

clause whether he was sitting in his office or socializing at a

bar.” Defendants note that Rhyne had actual knowledge of the terms

of the settlement agreement and was the brother of an attorney in

Plaintiff law firm, but articulate no legal connection between

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these facts and the legal relationship of principal and agent.

Defendants offered no evidence that the scope of Rhyne’s employment

included barroom gossip about members of the firm, and cite no

appellate opinions suggesting that an employee is considered an

“agent” of his employer even when he acts far outside the scope of

his employment.

We conclude that Defendants failed to produce any evidence

raising an issue of fact as to whether Rhyne acted as Plaintiffs’

agent during his conversation with Lopez.

Next, we consider Defendants’ contention that Rhyne breached

the contract by sending an email to members of Plaintiff law firm,

in which he complained about Defendants’ failure to reimburse

Plaintiffs for some of the costs that had been advanced. The email

was addressed to “Partners” and was received by three members of

the firm; Joy Webb, Dan Flebotte, and Joey Wilson. It stated:

Dan, Please find the attached advanced costs

reports for Kelly and Aaron. These reports
show that on several cases such as [redacted]
that they paid us $261.05 for reimbursement
for advance costs when in fact they owed us
$476.25. They need to go back and pay us for
all the cases that they neglected to even pay
a dime in advanced costs (to date they have
only paid advanced costs in three out of
twelve cases).

Even more frustrating, as I was talking to

Jennie Phillips, I found out that Stephanie
Minor and Tiffany Doster had been emailing
Jennie to get the advanced costs of cases they
settled. Even worse than that . . . several
were cases that they have paid us for attorney
fees already but have neglected to pay
advanced costs . . . so they knew what the
advanced costs were and just didn’t pay it.

Please don’t forget that we need the trust

 -13-

ledgers for the cases that they have already

paid us for and for the ones that they send us
checks [for] in the future. If we could
simply get the trust ledger, then we can see
the disbursements that were made and verify
the amount that we received. It’s that
simple.

The settlement agreement provides that the terms of the

contract are to remain confidential, but that the parties “shall be

allowed to discuss such provisions of this Agreement as is deemed

necessary with those members, employees and financial/legal

advisors on a need to know basis.” As conceded by Defendants

Stevens and Hemmings in their respective depositions, this clause

permits “in-house” communication about the terms of the agreement.

In support of their summary judgment motion, Plaintiffs

tendered a copy of the email showing that it was sent only to

members of the firm, and the deposition of Rhyne, in which he

testified that he sent the email only to the recipients shown on

the copy of the email. Plaintiffs’ evidence, which shows that the

email was not a breach of the parties’ agreement, made incumbent

upon Defendants to respond with evidence raising an issue of fact

about the email.

When Dan Flebotte, a member of Plaintiff law firm, received

the email, he sent a copy to Defendants as part of their ongoing

attempts to resolve issues arising from the settlement agreement.

The email copy that Hemmings received did not include the names of

the original recipients. On this basis, Defendants speculate that

perhaps the email had been sent to others outside the firm.

However, Defendants failed to produce any evidence that this had

 -14-

occurred, and offered no evidence to contradict Plaintiffs’ sworn

testimony that the email was only sent to members of the firm.

We conclude that the uncontradicted evidence was that this

email was from an employee of Plaintiff law firm to members of the

firm. Such communications are permitted under the settlement

agreement. Defendants failed to demonstrate any genuine issue of

material fact about this email. Accordingly, Plaintiffs were

entitled to entry of summary judgment on this issue.

Defendants also argue that Plaintiffs breached contract by

making a “fraudulent” demand for payment of expenses. This

argument is without merit.

The settlement agreement required Defendants to reimburse

Plaintiffs for costs advanced in certain cases. It provided that

Defendants would submit a check for the dollar amount that they

determined was owed, and if Plaintiffs deposited or cashed the

check, they were deemed to have accepted Defendants’ proposed

amount of expenses. Defendants concede that Plaintiffs had no

obligation under the settlement agreement to provide accounting

information to Defendants, calculate costs, or otherwise assist

Defendants in determining the amount of costs owed. Plaintiffs’

role was simply to accept or reject the proffered amount.

Nonetheless, Defendants asked Plaintiffs for information about

expenses. In response, Plaintiffs used QuickBooks® software to

generate a list of all checks written for the cases at issue and

sent the resulting document to Defendants in a loose-leaf binder.

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It is this ledger which Defendants characterize as a “fraudulent

demand” for money.

Defendants concede that the ledger does not include a demand

for payment, that it was not accompanied by a letter demanding

payment, and that Plaintiffs never expressed a “demand” for payment

of the costs set out in the notebook. Thus, it is undisputed that

Plaintiffs sent this listing unaccompanied by a letter, invoice, or

any demand or request to be paid any particular amount.

We conclude that the evidence offered on summary judgment did

not raise a genuine issue of material fact on Plaintiffs’ alleged

breaches of the settlement agreement. We specifically conclude

that Defendants failed to produce evidence that (1) Rhyne’s alleged

remarks to Lopez were a breach of the settlement agreement; (2)

Rhyne’s email to members of the firm was a breach of the settlement

agreement, or that; (3) the ledger records compiled by Plaintiffs

constituted a “demand” or a “fraudulent demand” for money. As we

have concluded that Defendants failed to present evidence that

Plaintiffs had breached the settlement agreement, we do not reach

the issues of whether the alleged breaches were material and

substantial; or whether a material and substantial breach, if one

had been shown, would have entitled Defendants to suspend payments

due under the settlement agreement.

We conclude that the trial court did not err by entering

summary judgment in favor of Plaintiffs on Defendants’ assertions

and defenses predicated on Plaintiffs’ alleged breaches of the

settlement agreement.
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Counterclaims

Defendants brought counterclaims against Plaintiffs for

slander per se, breach of contract, and for invasion of privacy and

misappropriation of likeness. Defendants argue on appeal that the

trial court erred by entering summary judgment for Plaintiffs on

these claims. We disagree.

We conclude that Defendants’ counterclaim against Plaintiffs

for slander per se was barred by the statute of limitations.

Under N.C. Gen. Stat. § 1-54(3) (2007), the statute of

limitations for a claim of slander or libel is one year. On

appeal, Defendants assert that “sometime in February-March 2006,

Brad Rhyne . . . made derogatory statements in public to Adrianne

Lopez, an acquaintance of Aaron Hemmings.” In her deposition,

Lopez testified that the allegedly slanderous remarks were part of

a conversation with Rhyne in “February or March” of 2006.

Defendants’ counterclaim was not filed until 24 July 2007, which is

several months after 31 March 2007.

Defendants argue that the cause of action did not accrue until

Hemmings “discovered” the slanderous remarks. This argument has

been rejected by our appellate courts. “‘To escape the bar of the

statute of limitations, an action for libel or slander must be

commenced within one year from the time the action accrues, G.S.

1-54(3), and the action accrues at the date of the publication of

the defamatory words, regardless of the fact that plaintiff may

discover the identity of the author only at a later date.’” Gibson

v. Mutual Life Ins. Co. of N.Y., 121 N.C. App. 284, 287, 465 S.E.2d
 -17-

56, 58 (1996) (quoting Price v. Penney Co., 26 N.C. App. 249, 252,

216 S.E.2d 154, 156 (1975)).

Moreover, Defendants did not argue to the trial court that the

statute of limitations should be tolled until Defendants learned of

Rhyne’s statements, and cannot raise this issue for the first time

on appeal. N.C. R. App. P. 10(b)(1). We conclude that Defendants’

claim for slander per se was barred by the statute of limitations.

Therefore we do not reach the issue of whether Rhyne’s remarks

constituted slander per se.

______________________

Defendants next argue that the trial court erred by entering

summary judgment, on the grounds that there were genuine issues of

material fact as to Defendants’ counterclaim/third party claim for

invasion of privacy and misappropriation of the Defendants’ names

and likenesses. We disagree.

“It is well known that the concept of a right of privacy

recognizable in law appears to have originated in a law review

article by Louis D. Brandeis, later a Justice of the Supreme Court

of the United States, and his law partner, Samuel D. Warren.

Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193

(1890).” Hall v. Post, 323 N.C. 259, 262, 372 S.E.2d 711, 713

(1988). “The Supreme Court of North Carolina has recognized that

‘an invasion of privacy by the appropriation of a plaintiff’s

photographic likeness for the defendant’s advantage as a part of an

advertisement constitutes a tort giving rise to a claim for relief

recognizable at law.’” Renwick v. News and Observer and Renwick v.

 -18-

Greensboro News, 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984)

(citing Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55

(1938)).

Plaintiff law firm, Merritt Flebotte, maintains a website that

displays information about the firm, including information about

its attorneys. While Hemmings and Stevens worked at the firm, the

website had links to brief biographical sketches of each.

Defendants contend that Plaintiffs continued to display Defendants’

photographs and biographical information on the Merritt Flebotte

website after Defendants left the firm. On this basis, Defendants

assert that Plaintiffs invaded their privacy by misappropriating

their images and professional reputation. However, Plaintiffs

supported their motion for summary judgment with uncontradicted

evidence that:

[a]fter Hemmings and Stevens left the firm,

Rhyne contacted the firm’s technical support
service, and asked them to delete Stevens and
Hemmings from the firm’s website.

On 13 September 2005 the technical support

staff deleted Defendants’ names and
biographical information from the website, and
removed all links on Plaintiffs’ website that
connected to information about Defendants.

After Defendants were deleted from the firm’s

website, it was no longer possible to navigate
from the firm’s homepage to pages about the
Defendants. A visitor to the firm’s website
would not see Defendants names among the
attorneys and none of the links on the website
led to information or pages about Defendants.

In her 3 April 2006 email to Defendant Joy Webb, Stevens

stated “I understand you took our names off the actual web page[.]”

In her deposition testimony, Stevens conceded that it was not

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possible to access any web links or information about her or

Hemmings after they were deleted from the website, and that she had

no evidence to contradict Plaintiffs’ evidence that this was done

on 13 September 2005. When Hemmings was deposed, he also admitted

that there was no way to navigate from Plaintiffs’ website to any

information about him or Stevens. Plaintiffs also offered

testimony showing that when Hemmings and Stevens quit the firm,

Plaintiffs wanted to remove all references to Defendants from

Plaintiffs’ website and took action to accomplish this removal, and

that after Defendants left the firm, Plaintiffs did not use

information about Defendants for any purpose.

Thus, Plaintiffs’ uncontradicted evidence established that:

(1) shortly after Defendants left the law firm, Plaintiffs directed

their technical support service to delete Defendants from the

Plaintiffs’ website; (2) on 13 September 2005 the technical service

deleted Defendants’ names and informational pages from Plaintiffs’

website; (3) after Defendants were deleted from the website, there

was no information about Defendants on the website, and no way to

navigate from Plaintiffs’ website to information about Hemmings or

Stevens, and; (4) after Defendants left Plaintiffs’ law firm,

Plaintiffs made no use of information about Defendants. This

evidence, which showed that Defendants could not prove that

Plaintiffs had misappropriated or used Defendants’ photographs or

biographical information after Defendants quit Plaintiffs’ law

firm, met Plaintiffs’ initial burden of “proving that an essential

element of the opposing party’s claim is nonexistent, or . . . that

 -20-

the opposing party cannot produce evidence to support an essential

element of his claim[.]” Collingwood, 324 N.C. at 66, 376 S.E.2d

at 427 (citations omitted). This shifted the burden to Defendants

to produce evidence showing a genuine issue of material fact

regarding their counterclaim.

Defendants did not produce evidence contradicting Plaintiffs’

evidence that, when Plaintiffs instructed the technical support

service to delete Defendants from the website, the consultant

removed links referring to Defendants from the website. The files

for these documents were stored as html code files on another

computer, called a server. Plaintiffs did not own the server, and

no evidence was presented to suggest that Plaintiffs intended to

preserve a copy of the deleted files. But, because the actual html

code was not removed from the server, it was theoretically possible

to use Google or another search engine to retrieve and view the

deleted pages. Defendants offered no evidence that any member of

the public had accessed these files.

Defendants did not allege that Plaintiffs were negligent, but

instead brought a claim for the intentional tort of invasion of

privacy. Assuming, arguendo, that after Plaintiffs removed all

information and links pertaining to Defendants from Plaintiffs’

website, an internet search engine might return links to some of

the deleted biographical pages, Defendants fail to articulate how

this would constitute misappropriation of their image or

biographies for any commercial purpose:

[a]ccording to [Defendant] he was able to

access [documents deleted from Plaintiffs’
 -21-

website] by entering the extended URL address

. . . [Defendant] claims he was also able to
access the [documents] through various website
searches conducted through Google. . . .
[Defendant] was able to unearth what is for
all practical purposes a cyberspace
artifact[.] . . . Indeed, it is undisputed
that after the [13 September file deletions]
the link[s] on [Plaintiffs’] website to
[Defendants] . . . [were] deleted[.] . . .
Beyond saying that his Google searches took
him to [a] link that took him to [a copy of
the deleted files,] . . . [Defendant] explains
nothing that would constitute clear and
convincing evidence of contumacy by
[Plaintiffs].

Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc., 2006

U.S. Dist. LEXIS 29082 (N.D. Ill. May 10, 2006) , aff'd 471 F.3d

745, 2006 U.S. App. LEXIS 30271 (7th Cir. Ill. 2006). We conclude

that Defendants failed to produce evidence of Plaintiffs’ invasion

of their privacy by misappropriation of likeness. This assignment

of error is overruled.

Finally, Defendants argue that the trial court erred by

denying their motion to compel discovery, on the grounds that it

was reasonably likely to lead to admissible evidence. We have

reviewed this assertion and find it to be without merit. This

assignment of error is overruled.

For the reasons discussed above, we conclude that the trial

court did not err and that its order should be

Affirmed.

Judges McGEE and GEER concur.