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Iadanza v. Harper4/19/2005
8 (1982)) (emphasis added). Moreover, if a complaint alleges only one of the two defamation torts, e.g., slander but not libel, this Court's review is likewise confined to that tort:
plaintiff's case was tried solely on the theory of slander; no issue as to libel was submitted. . . . The theory upon which the case was tried must prevail in considering the appeal, interpreting the record[.] . . . This case was tried on the theory of slander, and plaintiff has not appealed or assigned as error the trial judge's failure to submit an issue as to libel. Therefore, plaintiff may not argue the law of libel on appeal.
Tallent, 57 N.C. App. at 252, 291 S.E.2d at 339 (citing Paul v. Neece, 244 N.C. 565, 94 S.E.2d 596 (1956)). In the instant case, defendant's counterclaim sought damages for slander per se, and did not assert a claim for damages based on libel. Accordingly, we determine the propriety of the trial court's ruling only as it pertains to the alleged tort of slander per se.
The trial court dismissed defendant's claim of slander per se "as barred by the one year statute of limitations." We conclude that the trial court ruled correctly.
Under N.C.G.S. ยง 1-54(3) (2003), the statute of limitations for a claim of slander or libel is one year. "'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.2d56, 58 (1996) (quoting Price v. Penney Co., 26 N.C. App. 249, 252, 216 S.E.2d 154, 156 (1975)).
In the instant case, because defendant's counterclaim was filed on 10 March 2003, any slanderous statements made before 10 March 2002 are barred by the statute of limitations. Review of defendant's counterclaim reveals no allegations of any oral defamation, or slander, occurring after 10 March 2002. Indeed, the counterclaim includes only one allegation of behavior that is arguably within the statute of limitations:
32. In the fall of 2002, Dr. Harper's partner began receiving unsigned letters advising him that he had made a mistake entering into a partnership with Dr. Harper and should reconsider that partnership.
The parties have presented arguments about whether other paragraphs of defendant's counterclaim sufficiently attribute the anonymous letter-writing to the Iadanzas, and on whether the written statement, that Harper's partner had "made a mistake" by going into business with Harper, can be considered defamatory. We conclude that there is no need to address these issues. Paragraph 32 refers only to "unsigned letters" and not to any spoken or oral communication. Regardless of their content, "unsigned letters" cannot constitute slander because they are written rather than spoken. Accordingly, we conclude the trial court properly dismissed defendant's complaint for slander per se as barred by the statute of limitations.
Defendant also argues that the trial court erred by dismissing his other counterclaims for unfair and deceptive trade practices,civil conspiracy, and malicious prosecution. We have considered each of defendant's arguments and find them to be without merit. These assignments of error are overruled.
Plaintiff's Appeal from Order on Defendant's Counterclaims
Plaintiff has cross-appealed from the trial court's order dismissing defendant's counterclaims. Plaintiff argues first that the trial court erred by not ruling that coun
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