Ramsey v. Rudd

272 S.E.2d 162 (1980)

Edward RAMSEY v. Frank RUDD and Cone Mills Corporation.

No. 8018SC384.

Court of Appeals of North Carolina.

December 2, 1980.

*163 Pfefferkorn & Cooley by J. Wilson Parker, Winston-Salem, for plaintiff-appellant.

Cooke & Cooke by William Owen Cooke, Greensboro, for defendant-appellee, Frank Rudd.

Smith, Moore, Smith, Schell & Hunter by Stephen P. Millikin, Greensboro, for defendant-appellee, Cone Mills Corp.

CLARK, Judge.

The record indicates that the motion of Cone Mills for summary judgment was granted in a judgment entered 11 September 1979. On 27 September 1979, at the conclusion of the hearing on the motion of defendant Frank Rudd for summary judgment, the plaintiff first gave oral notice of appeal from the 11 September judgment. We, therefore, dismiss plaintiff's appeal of the 11 September judgment for failure to comply with Rule 3(c), N.C. Rules App. P. and G.S. 1-279, both of which require that an appeal be taken within 10 days after entry of the judgment. Brooks v. Matthews, 29 N.C.App. 614, 225 S.E.2d 159 (1976).

Defendant Rudd was entitled to summary judgment if there was no genuine issue of material fact concerning an essential element of the plaintiff's claim. Best v. Perry, 41 N.C.App. 107, 254 S.E.2d 281 (1979). One essential element of the tort of malicious interference with contract rights is that defendant must have acted without *164 justification. Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176 (1954).

The defendant's forecast of evidence available to him at trial indicated that he reported plaintiff's early departure after being ordered by his superior to cease letting Ramsey leave early. It was his duty to tell his supervisors when Ramsey later did that very thing. We believe no reasonable juror could find defendant unjustified in making to his superior the factually true report that Ramsey left early.

The defendant's forecast of evidence tended to show that the decision to discharge plaintiff from employment was jointly made by several of defendant Rudd's superiors on the sole basis of plaintiff's early departure on 21 November 1977. Whether or not this decision was fair, it is clear that, even taking the evidence in the light most favorable to plaintiff, the defendant Rudd had no greater hand in the decision than merely to pass along the information that was considered.

"[O]nce the defending party forecasts evidence which ... tends to establish his right to judgment as a matter of law, the claimant must present a forecast of the evidence ... to support his claim for relief."

Best v. Perry, 41 N.C.App. at 110, 254 S.E.2d at 284.

Plaintiff, in his first deposition, stated there was no malice on the part of anyone, but later changed his answer to state that Rudd had actual malice and ill will toward him. While it is true that a forecast of legal malice would rebut defendant's forecast of justification sufficiently to take the issue to trial, Childress v. Abeles, 240 N.C. at 674-75, 84 S.E.2d at 182, plaintiff forecasts no evidence of such legal malice, apparently believing that this Court should be as persuaded by one kind of malice as another. Such is not the case. We believe the actual malice of defendant is irrelevant in light of the fact that he did no more than he was required to do by his employer. "An act which is lawful in itself and which violates no right cannot be made actionable because of the motive which induced it." Elvington v. Waccamaw Shingle Co., 191 N.C. 515, 517, 132 S.E. 274, 275 (1926).

Summary judgment is proper when there is no genuine issue of material fact. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). Here there is evidence that defendant Rudd was justified in his actions because there was sufficient lawful reason for his conduct, i. e., he was merely doing what he had been ordered by his employer to do. No evidence has been forecast to show the defendant Rudd's lack of justification. A jury which found for plaintiff on all other elements of malicious interference with plaintiff's contract, would still not be justified in returning a verdict for plaintiff unless they also found that defendant acted without justification when he reported plaintiff's early departure. We hold that if all the evidence forecast in the affidavits and depositions of both parties were presented at trial, reasonable jurors could not differ on the issue of justification. Summary judgment for defendant was therefore proper.

The plaintiff's appeal is dismissed as to defendant Cone Mills, and summary judgment against plaintiff in favor of defendant Rudd is affirmed.

Dismissed in part; affirmed in part.

WEBB and WHICHARD, JJ., concur.