Supreme Court of North Carolina.

 

MARTIN MARIETTA CORPORATION, Martin Marietta Aggregates, and John F. Long, Jr.

v.

WAKE STONE CORPORATION, and Thomas B. Oxholm.

 

No. 390A93.

 

Feb. 10, 1995.

 

 

Mining company brought action against competitor, alleging that competitor's statements concerning mining company's business were libelous and constituted unfair and deceptive trade practices. The Superior Court, Wake County, A. Leon Stanback, Jr., J., granted summary judgment in favor of competitor. The Court of Appeals, 111 N.C.App. 269, 432 S.E.2d 428, reversed summary judgment on unfair or deceptive trade practices claim, and competitor appealed. The Supreme Court held that: (1) record contained forecast of evidence from which jury could find that competitor made and distributed statements either knowingly or in reckless disregard of truth, which were both false and designed to injure or destroy company's business and thus eliminate competition from area, and (2) such statements, if made, were not constitutionally privileged and violated unfair competition statutes.

 

Affirmed.

 

 

West Headnotes

 

[1] Trade Regulation 864

382k864 Most Cited Cases

 

Summary judgment for competitor on company's unfair and deceptive trade practices claim was improper, as record contained forecast of evidence from which jury could find that competitor made and distributed statements either knowingly or in reckless disregard of truth, which were both false and designed to injure or destroy company's business and thus eliminate competition from area.

 

[2] Libel and Slander 9(1)

237k9(1) Most Cited Cases

 

[2] Trade Regulation 862.1

382k862.1 Most Cited Cases

 

If company's competitor made and distributed statements either knowingly or in reckless disregard of truth, which were both false and designed to injure or destroy company's business and thus eliminate competition from area, such statements did not enjoy constitutional privilege, were "unfair" within meaning and intent of unfair competition statute, and were unlawful under statute prohibiting willful destruction of another's business. U.S.C.A. Const.Amend. 1; G.S. 75-1.1, 75-5(b)(3).

**146 *602 Appeal by defendants pursuant to N.C.G.S. 7A- 30(1) (substantial constitutional question) from a decision of the Court of Appeals, 111 N.C.App. 269, 432 S.E.2d 428 (1993), affirming in part and reversing in part a summary judgment in favor of defendants entered on 26 September 1991 by Stanback, J., in Superior Court, Wake County. Heard in the Supreme Court 12 January 1995.

 

Petree Stockton, L.L.P. by Ralph M. Stockton, Jr., Jeffrey C. Howard, and Rodrick J. Enns, Winston"S-lem , for plaintiffs-appellees.

 

McMillan, Kimzey & Smith by James M. Kimzey and Katherine E. Jean, Raleigh, for defendants-appellants.

 

Martha A. Geer, Raleigh, for the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

 

 

 

*603 PER CURIAM.

 

[1][2] Having reviewed the record, briefs and oral arguments of the parties, the Court concludes that the record contains a forecast of evidence from which a jury could find that defendants knowingly, or in reckless disregard of the truth, made and distributed statements which were both false and designed to injure or destroy plaintiffs' business in Nash County, thereby eliminating competition in that area. Such statements do not enjoy constitutional protection. **147McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). They are "unfair" within the meaning and intent of N.C.G.S. 75-1.1 and unlawful under the prohibitions contained in N.C.G.S. 75-5(b)(3). Accordingly, the Court of Appeals was correct in reversing the trial court's grant of defendants' motion for summary judgment on plaintiffs' unfair or deceptive trade practice claim. The decision of the Court of Appeals is therefore

 

AFFIRMED.

 

 

ORR, J., did not participate in the consideration or decision of this case.

 

453 S.E.2d 146, 339 N.C. 602

 

END OF DOCUMENT