Lippard v. Holleman

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-873

Filed: 19 May 2020

Iredell County, No. 13 CVS 2701

KIM and BARRY LIPPARD, Plaintiffs,

v.

LARRY HOLLEMAN and ALAN HIX, Defendants.

Appeal by Plaintiffs from order entered 17 April 2018 by Judge Mark E. Klass

in Iredell County Superior Court. Heard in the Court of Appeals 14 March 2019.

Seth B Weinshenker, P.A., by Seth B. Weinshenker, for plaintiffs-appellants.

Gibbs & Associates Law Firm, LLC, by Seth J. Kraus and E. Bedford Cannon, for defendants-appellees.

MURPHY, Judge.

Kim Lippard (“Mrs. Lippard”) and Barry Lippard (“Mr. Lippard”) (together,

“Plaintiffs”) allege multiple claims of defamation against Larry Holleman

(“Holleman”) and Alan Hix (“Hix”) (together, “Defendants”). The First Amendment

does not permit courts to hear defamation claims when they were made during an

internal religious dispute regarding ecclesiastical matters. We affirm the trial court’s

grant of summary judgment in favor of Defendants. LIPPARD V. HOLLEMAN

Opinion of the Court

BACKGROUND

Plaintiffs were members of Diamond Hill Baptist Church (“DHBC”), where

Mrs. Lippard had served as church pianist and vocalist. Holleman was the Pastor of

the Church and Hix was Minister of Music. Holleman was DHBC’s leader and was

“responsible for leading [DHBC] to function as a New Testament Church.” This

included leading the congregation and DHBC staff to perform their tasks and caring

for the DHBC members. Hix directed DHBC’s music organization. Its purpose was

“to teach music, train persons to lead, sing, and play music, [and] provide music in

the [DHBC] and community.” Under Hix’s direction, the music organization

“provide[d] and interpret[ed] information regarding the work of the [DHBC] and

denomination.”

On 8 August 2012, Mrs. Lippard and Hix had a disagreement over the re-

assignment of a music solo. The solo was originally assigned to Mrs. Lippard for an

upcoming Sunday morning service. Hix, however, asked another choir member to

perform the solo and Mrs. Lippard was upset about the reassignment. When an

internal conflict between church members arises, DHBC’s bylaws maintain that “the

pastor and the deacons will take every reasonable measure to resolve the problem in

accord with Matthew 18.”

As church leader, Holleman began meeting with Mrs. Lippard and Hix to

facilitate a “reconciliation” between them and an “improved relationship based on

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biblical passages.” On 26 August 2012, after several unsuccessful reconciliation

meetings, Holleman met with the Board of Deacons (“Deacons”) to discuss whether

Mrs. Lippard should be dismissed from her position as DHBC pianist. At the

meeting, the Deacons voted to recommend Mrs. Lippard’s dismissal to DHBC’s

Church Personnel Committee (“the Personnel Committee”). Three days later,

Holleman informed Mrs. Lippard that the Deacons had voted to recommend her

dismissal.

In response to a voice message from Mr. Lippard, Holleman arranged further

counseling sessions between Mrs. Lippard and Hix. The sessions were to continue

seeking a “reconciliation” between the two and were scheduled for late September

through October 2012.

Ultimately, the Deacons announced its decision to again recommend Mrs.

Lippard’s dismissal and re-submitted its recommendation to the Personnel

Committee. The Personnel Committee met and voted to recommend to the full

congregation that Mrs. Lippard be dismissed as DHBC pianist. The decision had to

be approved by an affirmative vote of three-fourths of DHBC members. On 13

November 2012, Holleman delivered a letter to Mrs. Lippard, setting forth the

reasons for his recommendation to dismiss her as pianist.1

1 Although the 13 November letter Holleman sent to Mrs. Lippard is not included in the Record, Plaintiffs assert the 13 November letter is a shortened version of a 28 November 2012 letter made available to the full DHBC congregation, which is included in the Record. Defendants do not contest this assertion.

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On 25 November 2012, during the morning DHBC church service, Holleman

announced to his congregation that there would be a “church-wide” meeting and a

vote in three days. At that meeting, DHBC staff would be discussed and it was part

of the responsibilities of members to be present for the discussion and to vote. He

also said that a written letter explaining a motion and absentee ballots for the motion

would be made available.

At the “church-wide” meeting on 28 November 2012, Holleman delivered a

sermon on the motion to terminate Mrs. Lippard from the pianist position. He

repeatedly stated that the recommendation for Mrs. Lippard’s dismissal stemmed

from her “unwillingness to commit” to the DHBC’s reconciliation process. After the

meeting, Holleman left printed copies of his 28 November 2012 sermon in the foyer

for members of the congregation. He also made a letter available titled “Concluding

Comments to the Present disciplinary Actions by The Body of Deacons and the

Personnel Committee (November 13, 2012).” It said, “I (we) have yet to hear you

acknowledge any personal responsibility for your failures.” The letter concluded that

Mrs. Lippard, “by placing conditions upon [her] obedience to the scriptures as they

regard reconciliation, ha[s] been the obstacle to that reconciliation.”

In a sermon on 2 December 2012, Holleman advocated for the DHBC

congregation to remove Mrs. Lippard from the pianist position. Ballots were

distributed stating the Deacons recommended the dismissal of Mrs. Lippard “due to

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her unwillingness to admit to any wrongdoing, or to commit unconditionally to the

process of reconciliation.” The congregation voted against dismissal, and Mrs.

Lippard remained in her position. Holleman and Hix also continued in their

respective leadership positions.

Plaintiffs allege that, after the vote, Holleman and the Deacons unsuccessfully

sought to remove them as members of DHBC, and that Defendants continued to

speak with members of the congregation about Plaintiffs. Plaintiffs contend that in

Holleman’s sermons he “continued . . . to defame [Plaintiffs] by consistently preaching

against those who would not commit to reconciliation,” alluding to Plaintiffs.

Plaintiffs further contend Hix said to a DHBC member that “[Mr.] Lippard is a liar

and you and other people like you are believing him instead of the Scripture.” On 8

January 2013, Hix also emailed DHBC member Tony Brewer (“Brewer”) about the

situation, stating Plaintiffs were “openly denying” “verifiable facts” about the

reconciliation process.

Holleman also communicated with others about Plaintiffs. When Brewer

complained of the efforts to remove Plaintiffs, Holleman sent a letter to him alleging

that Mrs. Lippard “refuses to acknowledge any wrongdoing, and that she was

unwilling to commit unconditionally to the process of reconciliation.” In a 6 April

2013 email, Holleman claimed Mr. Lippard once “blocked [Hix’s] exit from the music

room and was aggressively going after [Hix], pointing his finger in [Hix]’s face, an

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action [Holleman] recently learned was illegal and could have very well been reported

as a crime.” Holleman also emailed DHBC member A.W. Myers (“Myers”), stating

Mrs. Lippard failed to acknowledge her own role in the dispute between her and Hix.

In August 2013, Mrs. Lippard resigned her position as DHBC pianist and Plaintiffs

began attending another church.

A. Unpublished Lippard

Shortly after Mrs. Lippard’s resignation, Plaintiffs filed this action against

DHBC and Defendants, alleging they were defamed by Defendants, who Plaintiffs

also allege committed ultra vires corporate activities. In their answer, Defendants

moved to dismiss Plaintiffs’ complaint under N.C.G.S. § 1A-1, Rule 12(b)(1) for lack

of subject matter jurisdiction. Plaintiffs voluntarily dismissed their claim against

DHBC without prejudice, leaving only their claims against Defendants. Defendants’

Rule 12(b)(1) motion to dismiss was denied by Judge Anna Mills Wagoner on 25 May

2014. Defendants later moved to dismiss Plaintiffs’ second cause of action for ultra

vires activities, and Judge Theodore Royster granted Defendants’ motion, leaving

only the claims for defamation against Defendants.

After retaining new counsel, Plaintiffs filed a separate civil action (No. 15-CVS-

606) against Defendants and DHBC upon nearly identical claims of defamation, ultra

vires activities, and negligent supervision while the claims in the 2013 case were still

active. Defendants moved to dismiss the claims in No. 15-CVS-606 and made an oral

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motion to dismiss the claims in this case as well. Judge Michael Duncan dismissed

the claims in No. 15-CVS-606 while refusing to rule on Defendants’ oral motion to

dismiss the claims in this case, finding that Judge Wagoner had previously ruled on

that issue.

Defendants filed an additional motion to dismiss Plaintiffs’ remaining

defamation claims in this case on 16 February 2016 for lack of subject matter

jurisdiction under N.C.G.S. § 1A-1, Rule 12(b)(1) and failure to state a claim upon

which relief can be granted under N.C.G.S. § 1A-1, Rule 12(b)(6). Judge Martin B.

McGee heard the motion on 21 March 2016 and dismissed Plaintiffs’ defamation

claim in an order, stating “[t]he First Amendment deprives the [c]ourt of jurisdiction

to resolve this dispute involving internal communications between church leadership

and members of the congregation relating to issues of membership and music

leadership.”

Plaintiffs appealed and we vacated and remanded the judgment to the trial

court in an unpublished opinion. Lippard v. Holleman, No. COA16-886, 253 N.C.

App. 407, 798 S.E.2d 812, 2017 WL 1629377, at *3 (2017) (unpublished) (hereinafter

Unpublished Lippard).2 In vacating and remanding the trial court’s dismissal of

Plaintiffs’ claims under Rule 12(b)(1), we held that Judge McGee’s grant of

Defendants’ motion to dismiss impermissibly overruled Judge Wagoner’s denial of

2 Our recognition of the law of this case does not convert the holding in our previously unpublished opinion into binding precedent. See Rule 30(e).

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Defendants’ motion to dismiss in the same action. We reasoned subject matter

jurisdiction is not an exception to the general rule that “one Superior Court judge

may not correct another’s errors of law; and . . . ordinarily one judge may not modify,

overrule, or change the judgment of another Superior Court judge previously made

in the same action.” Unpublished Lippard, 2017 WL 1629377, at *3 (quoting

Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)) (internal

quotations omitted). We further held that none of the recognized exceptions to the

Calloway rule applied. See id. at *5. Although we discussed jurisdiction and the

ecclesiastical entanglement doctrine under the First Amendment in dicta, our opinion

did not reach the merits of the issue currently before us.

B. Decision on Remand

On remand to the trial court, Defendants filed a motion for summary judgment

under N.C.G.S. § 1A-1, Rule 56, stating there was no genuine issue as to any material

fact and they were entitled to judgment as a matter of law. Judge Mark E. Klass

granted Defendants’ motion on the following grounds: (1) the First Amendment

barred Plaintiffs’ claims because “inquiry into the falsity of the claimed ‘defamatory

statements’ would cross the ecclesiastical limitations prohibited by the First

Amendment”; (2) “Defendants are entitled to judgment as a matter of law in their

individual capacities” because Plaintiffs “failed to raise any forecast of evidence that

Defendants made any of their statements in their individual capacities”; (3)

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Defendants are entitled to judgment as a matter of law in their representative

capacities because Plaintiffs voluntarily dismissed Defendants’ principal, DHBC; (4)

none of Defendants’ statements were defamatory per se as a matter of law; and (5)

Plaintiffs failed to “provide any evidentiary forecast that they suffered special

damages because of any of Defendants’ allegedly defamatory per quod statements.”

Plaintiffs appealed.

ANALYSIS

Summary judgment is proper “if 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.G.S. § 1A-1, Rule 56(c) (2017). “We review a trial

court’s order granting or denying summary judgment de novo.” Craig ex rel. Craig v.

New Hanover County Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 353 (2009)

(internal citations omitted).

“Subject matter jurisdiction is conferred upon the courts by either the North

Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353

S.E.2d 673, 675 (1987). “The question of subject matter jurisdiction may be raised at

any time . . . .” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d

83, 85 (1986). “It is a universal rule of law that parties cannot, by consent, give a

court, as such, jurisdiction over subject matter of which it would otherwise not have

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jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties,

waiver, or estoppel.” Pulley v. Pulley, 255 N.C. 423, 429, 121 S.E.2d 876, 880 (1961)

(quoting Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956)).

A. First Amendment Ecclesiastical Entanglement Doctrine

Plaintiffs argue the trial court erred in granting summary judgment to

Defendants for lack of subject matter jurisdiction on First Amendment grounds.

According to Plaintiffs, their defamation claims do not require the trial court to

impermissibly weigh church doctrine because “it is the conduct of [Defendants] in

carrying on reconciliation proceedings and defaming [Plaintiffs] in the course of such

proceedings, and not the reconciliation proceeding itself, that is at issue.” In contrast,

Defendants argue the trial court correctly held that the defamation claim is barred

under the ecclesiastical entanglement doctrine because, to determine whether the

alleged defamatory statements were false, courts would “becom[e] entangled in the

statements made during the course of [DHBC]’s religious disciplinary and

administrative activities between the Lippards, Holleman, Hix, and members and

choir members of DHBC.” We hold that determining the truth or falsity of

Defendants’ alleged defamatory statements—where the content of those statements

concerns whether Plaintiffs complied with DHBC’s practices—would require us to

interpret or weigh ecclesiastical matters, an inquiry not permitted by the First

Amendment.

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“The Establishment Clause and the Free Exercise Clause of the First

Amendment prohibit any ‘law respecting an establishment of religion, or prohibiting

the free exercise thereof.’” Doe v. Diocese of Raleigh, 242 N.C. App. 42, 47, 776 S.E.2d

29, 34 (2015) (quoting U.S. Const. amend. I.). “As applied to the states through the

Fourteenth Amendment, the First Amendment also restricts action by state

governments and the servants, agents and agencies, of state governments.” Hill v.

Cox, 108 N.C. App. 454, 461, 424 S.E.2d 201, 206 (1993) (citation and quotation marks

omitted). There is “a spirit of freedom for religious organizations, an independence

from secular control or manipulation, in short, power to decide for themselves, free

from state interference, matters of church government as well as those of faith and

doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am.,

344 U.S. 94, 116, 97 L. Ed. 120 (1952) (emphasis added). “For the First Amendment

rests upon the premise that both religion and government can best work to achieve

their lofty aims if each is left free from the other within its respective sphere.”

McCollum v. Bd. of Ed., 333 U.S. 203, 212, 92 L. Ed. 649 (1948). We “are prohibited

‘from becoming entangled in ecclesiastical matters’ and have no jurisdiction over

disputes which require an examination of religious doctrine and practice in order to

resolve the matters at issue.” Doe, 242 N.C. App. at 47, 776 S.E.2d at 34-35 (quoting

Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 510, 714 S.E.2d 806,

810 (2011).

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An ecclesiastical matter is one which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decision will be respected by civil tribunals.

Doe, 242 N.C. App. at 47, 776 S.E.2d at 35 (quoting E. Conference of Original Free

Will Baptists of N.C. v. Piner, 267 N.C. 74, 77, 147 S.E.2d 581, 583 (1966), overruled

in part on other grounds by Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973)).

Hearing disputes over these matters is prohibited because of two concerns: “(1) by

hearing religious disputes, a civil court could influence associational conduct, thereby

chilling the free exercise of religious beliefs; and (2) by entering into a religious

controversy and putting the enforcement power of the state behind a particular

religious faction, a civil court risks ‘establishing’ a religion.” Id. at 48, 776 S.E.2d at

35 (internal quotation marks omitted) (quoting Emory v. Jackson Chapel First

Missionary Baptist Church, 165 N.C. App. 489, 492, 598 S.E.2d 667, 670 (2004)).

These dangers demand dismissal “when ‘no neutral principles of law exist to

resolve claims’ so that [a] court can ‘avoid becoming impermissibly entangled in the

dispute[.]’” Id. at 58, 776 S.E.2d at 41 (alterations omitted) (quoting Harris v.

Matthews, 361 N.C. 265, 273, 643 S.E.2d 566, 571 (2007)). This necessitates an

answer to a “dispositive question[:] whether resolution of the legal claim requires the

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court to interpret or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490,

494, 495 S.E.2d 395, 398 (1998) (citing Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696, 710, 49 L. Ed. 2d 151, 163 (1976)). Only when an “issue to be

determined in connection with [a party’s] claim is a purely secular one,” then

“[n]eutral principles of law govern th[e] inquiry and . . . subject matter jurisdiction

exists in the trial court over th[e] claim.” Doe, 242 N.C. App. at 55, 776 S.E.2d at 39

(emphasis added); see also Smith v. Raleigh Dist. of N.C. Conference of United

Methodist Church, 63 F. Supp. 2d 694, 713 (E.D.N.C. 1999) (holding that “[a] court

must determine whether the dispute is an ecclesiastical one about discipline, faith,

internal organization, or ecclesiastical rule, custom or law, or whether it is a case in

which it should hold religious organizations liable in civil courts for purely secular

disputes between third parties and a particular defendant, albeit a religiously

affiliated organization”) (internal marks and citations omitted).

In Harris, our Supreme Court reaffirmed the importance of avoiding

entanglement in matters such as ecclesiastical governance, doctrine, practice,

questions, roles of officials, and internal decision-making. Harris v. Matthews, 361

N.C. 265, 271-73, 643 S.E.2d 566, 570-572 (referencing Serbian E. Orthodox Diocese

v. Milivojevich, 426 U.S. 696, 710, 49 L. Ed. 2d 151, 163 (1976); Md. & Va. Eldership

of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368, 24 L. Ed.

2d 582, 583 (1970) (per curiam); Presbyterian Church in U.S. v. Mary Elizabeth Blue

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Hull Mem’l Presbyterian Church, 393 U.S. 440, 449, 21 L. Ed. 2d 658, 665 (1969)).

The Supreme Court concluded that

[w]hen a party brings a proper complaint, where civil, contract, or property rights are involved, the courts will inquire as to whether the church tribunal acted within the scope of its authority and observed its own organic forms and rules. But when a party challenges church actions involving religious doctrine and practice, court intervention is constitutionally forbidden.

Harris, 361 N.C. at 274–75, 643 S.E.2d at 572 (internal marks and citations omitted)

(emphasis added).

Although our courts have not previously decided whether the ecclesiastical

entanglement doctrine applies to defamation claims, “the principles set out [in

Harris] concerning the limitations placed by the First Amendment on the subject

matter jurisdiction of civil courts to adjudicate claims against religious entities are

equally applicable here.” Doe, 242 N.C. App. at 49, 776 S.E.2d at 36. Again, “[t]he

dispositive question is whether resolution of the legal claim[s] requires the court to

interpret or weigh church doctrine. If not, the First Amendment is not implicated

and neutral principles of law are properly applied to adjudicate the claim.” Id. at 49,

776 S.E.2d at 36 (alteration in original) (quoting Smith v. Privette, 128 N.C. App. 490,

494, 495 S.E.2d 395, 398, appeal dismissed, 348 N.C. 284, 501 S.E.2d 913 (1998)).

Defamation claims present a unique challenge under this doctrine because, in North

Carolina, as in other states, these claims include as an essential element the falsity

of the defendant’s alleged statements. See Parker v. Edwards, 222 N.C. 75, 78, 21

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S.E.2d 876, 878-89 (1942) (“It may be stated as a general rule . . . that a defamatory

statement, to be actionable, must be false.”).

Harris maintains that our courts must avoid entanglement in ecclesiastical

matters, doctrine, and practice. See Harris, 361 N.C. at 269-75, 643 S.E.2d at 569-

72. Not only do we dismiss claims that involve examining or weighing doctrine, but

we also dismiss claims that involve examining or weighing ecclesiastical matters.

Doe, 242 N.C. App. at 46-58, 776 S.E.2d at 34-41; see Harris, 361 N.C. at 270, 643

S.E.2d at 569 (“The constitutional prohibition against court entanglement in

ecclesiastical matters is necessary to protect First Amendment rights identified by

the ‘Establishment Clause’ and the ‘Free Exercise Clause.’”). As discussed above,

ecclesiastical matters go beyond following church scripture or texts, and our

precedent has shown the breadth of ecclesiastical matters and church doctrine.

In Doe, we distinguished two tort claims that implicated the ecclesiastical

entanglement doctrine. On the one hand, we allowed an individual’s negligent

supervision claim against a diocese and a bishop that stemmed from an alleged sexual

assault, reasoning that neutral principles of law permitted adjudicating an

individual’s claim that the diocese and bishop knew or should have known of the

danger posed by the priest to an individual because of his sexual attraction to minors.

Doe, 242 N.C. App. at 51-55, 776 S.E.2d at 36-39. We concluded there was no need to

determine issues such as whether the priest should have been incardinated, allowed

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to remain a priest, or whether the priest’s relationship with the diocese should have

been severed. Id. On the other hand, we could not adjudicate the same individual’s

negligence claim based on defendants’ failure to compel the priest to undergo sexually

transmitted disease (STD) testing. Id. at 56, 776 S.E.2d at 40. We reasoned that the

liability theory was premised on tenets of the Catholic church, namely, the degree of

control existing in the relationship between the bishop and priest. Id.

Our Supreme Court held in Harris that a trial court could not judge “the proper

role of . . . church officials and whether . . . expenditure[s were] proper in light of . . .

religious doctrine and practice.” Harris, 361 N.C. at 273, 643 S.E.2d at 571.

Therefore, “[b]ecause a church’s religious doctrine and practice affect its

understanding of each of [the concepts at issue], [this is like] asking a court to

determine whether a particular church’s grounds for membership are spiritually or

doctrinally correct or whether a church’s charitable pursuits accord with the

congregation’s beliefs,” which are barred. Id. Religious doctrine permeates a church’s

understandings of numerous aspects of its religious practice. See id.

Various other North Carolina cases inform what is included in the

ecclesiastical entanglement doctrine. We held in Emory that we could not look into a

church’s internal customs or practices. Emory v. Jackson Chapel First Missionary

Baptist Church, 165 N.C. App. 489, 493, 598 S.E.2d 667, 670-71 (2004) (barring an

examination of informal meeting notice requirements). Yet, in Azige, we reaffirmed

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that courts may resolve church disputes through neutral principles of property law

without necessarily becoming entangled in internal church governance concerning

ecclesiastical matters. Azige v. Holy Trinity Ethiopian Orthodox Tewahdo Church,

249 N.C. App. 236, 239, 790 S.E.2d 570, 572-73 (2016). Likewise, in Smith, we did

not have to interpret or weigh doctrine in a negligent retention and supervision claim

because the claims merely raised the issue of whether church officials knew or had

reason to know of a cleric’s propensity to engage in sexual misconduct. Smith, 128

N.C. App. at 495, 495 S.E.2d at 398.

United States Supreme Court decisions also support our longstanding aversion

for entanglement in ecclesiastical matters. Religious disputes can include “matters

of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” See

Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 49 L. Ed. 2d 151

(1976). Indeed, more than 150 years ago, the United States Supreme Court held that

religious disputes could cover “theological controversy, church discipline,

ecclesiastical government, or the conformity of the members of the church to the

standard of morals required of them . . . .” Watson v. Jones, 80 U.S. 679, 733, 20 L.

Ed. 666 (1871). “[Watson] radiates . . . a spirit of freedom for religious organizations,

an independence from secular control or manipulation, in short, power to decide for

themselves, free from state interference, matters of church government as well as

those of faith and doctrine.” Kedroff, 344 U.S. at 116, 97 L. Ed. 120 (emphasis added).

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Under our precedent and United States Supreme Court precedent, religious

doctrine and ecclesiastical matters are expansive. Statements made during religious

disputes can include a religion’s internal customs, practices, beliefs, faith, theology,

morality, membership, organization, governance, rules, law, discipline, and degree of

control between members. The nature of speech, and alleged defamatory statements

in particular, more easily touch upon these subjects than negligence or property

claims. To illustrate, a corporation’s communications are riddled with corporate

issues and business matters, just as a religion’s internal communications are riddled

with religious issues and ecclesiastical matters. It is then unlikely that a church’s

internal communications will be “purely secular.” See Doe, 242 N.C. App. at 55, 776

S.E.2d at 39 (holding that we have subject matter jurisdiction over an issue when a

“claim is a purely secular one” because “[n]eutral principles of law [can] govern th[e]

inquiry”).

For defamation claims, we must consider whether a statement is true or false

without examining or inquiring into ecclesiastical matters or church doctrine. See

Doe, 242 N.C. App. at 48, 776 S.E.2d at 35. Those matters permeate much of a

religion’s internal communications, and so it will be a rare occurrence when a

religion’s internal statements are purely secular. We must remain cautious of

deciding the truth or falsity of a religion’s internal communications because doing so

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risks chilling the religion’s “associational conduct” or putting our pen’s power “behind

a particular religious faction.” See id. at 48, 776 S.E.2d at 35.

Finally, we cannot favor religions with scripture and disfavor religions without

scripture. Religions without authoritative scripture or internal documentation would

be more susceptible to defamation claims than those without. We cannot

disadvantage religions that lack such texts. Nor can we decide if a religion has

sufficiently deep ecclesiastical points of faith and practice compared to others. The

First Amendment serves to prevent exactly this sort of picking of winners and losers

in ecclesiastical matters.

B. The Statements

Plaintiffs argue several communications by Defendants were defamatory. For

simplicity, we divide analysis of these communications into discrete sets of

statements. We hold that determining the falsity of the statements—an essential

element of a defamation claim under North Carolina law—would require our courts

to examine or inquire into ecclesiastical matters or church doctrine. This is not

permitted by the First Amendment or North Carolina precedent. We analyze these

communications in turn.

1. 13 November 2012 Letter

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The first statement Plaintiffs challenge is contained in the 13 November letter

addressed from Holleman to Mrs. Lippard and later sent to DHBC’s congregation in

an expanded form. Plaintiffs primarily challenge the following statement from the

letter: “I (we) have yet to hear you [Mrs. Lippard] acknowledge any personal

responsibility for your failures.” Plaintiffs claim that the statement is false “in that

[Mrs.] Lippard ha[d] acknowledged her share of responsibility in the dispute with

Hix.”

Further context from the 13 November letter shows the ecclesiastical context

of the challenged statement. In the 13 November letter, Holleman stated the

Deacons’s recommendation to dismiss Mrs. Lippard came from the Deacons’s belief

that “[Mrs. Lippard,] by placing conditions upon [her] obedience to the scriptures as

they regard reconciliation, ha[s] been the obstacle to that reconciliation.” Holleman

stated that, during a reconciliation meeting, he had posed six questions drawn from

Ephesians 4 to Mrs. Lippard, with three more direct questions asking her to admit

failures in those areas. He continued, saying “it’s true you answered ‘yes’ but you

followed that answer three times with the condition of your demand for satisfactory

answers from [Hix.] What was evident then was that you had missed the essence of

the Biblical text . . . .” Holleman went on to identify four “personal failures” of Mrs.

Lippard “that are obviously and Biblically demonstrated as failures or sinful”: (1) her

immediate response to the song reassignment; (2) that she “failed in [her] continued

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resistance to the disciplinary actions of the church,” specifically noting that “Hebrews

12:11 exhorts [DHBC members] to be ‘exercised’ or ‘trained’ by [the reconciliation

process]”; (3) Mrs. Lippard’s alleged “slanderous comments about a fellow believer”;

and (4) her “implied accusation that [Hix] had intentionally concealed the music for

his solo . . . .”

Plaintiffs ask us to determine the truth or falsity of Holleman’s claim that he

and the Deacons had not heard Mrs. Lippard “acknowledge any personal

responsibility for [her] failures.” What is apparent from the 13 November letter is

that the acknowledgment of personal responsibility Holleman refers to is

acknowledgment in the context of reconciliation between persons under biblical

doctrine as DHBC understands it. Courts cannot undertake such an inquiry.

To determine whether Mrs. Lippard’s conduct constituted an

“acknowledge[ment] of personal responsibility” under these conditions would require

courts to interpret religious doctrine. Here, the statement at issue is whether Mrs.

Lippard acknowledged personal responsibility for her failures. To determine the

truth or falsity of that statement, the trial court would have to determine (1) what

Mrs. Lippard’s “failures” were, in biblical context, and (2) whether Mrs. Lippard’s

conditional response to the questions asking her to admit failures based on the text

of Ephesians 4 was sufficient under DHBC doctrine. We hold the ecclesiastical

entanglement doctrine under the First Amendment prohibits this inquiry.

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2. 28 November 2012 Sermon

Plaintiffs next contend statements Holleman made in a 28 November 2012

sermon delivered to the DHBC congregation were defamatory. Plaintiffs challenge

Holleman’s statement that “[Mrs. Lippard] had yet to acknowledge any wrongdoing

and that this refusal was the basis for the Deacon’s [sic] recommendation [to dismiss

her as staff church pianist].” They further challenge Holleman preaching that the

Deacons’s decision was based on Mrs. Lippard’s “unwillingness to commit” to DHBC’s

reconciliation process; that Mrs. Lippard’s refusal to accept responsibility “for any

possible error was as strong, if not stronger than ever[]”; and that Mrs. Lippard “never

conceded to any wrongdoing.” Plaintiffs also challenge Holleman’s claims that Mrs.

Lippard accused Hix of lying and intentionally hiding sheet music and making

slanderous comments about a fellow choir member.

The content of the 28 November sermon restates and expands on the 13

November letter and our analysis demands the same result. The record shows that

Holleman delivered the challenged statements during a sermon explaining the

Deacons and Personnel Committee’s decision to recommend Mrs. Lippard’s

termination as church pianist and advocating for the congregation to approve that

termination. Specifically, Holleman describes the sermon and gathering as “a

necessary, though infrequent, part of New Testament Church life and ministry,” and

the attempted “reconciliation process” and recommendation for termination as an

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“application of church discipline” and as “follow[ing] the New Testament pattern for

church discipline.”

At the outset of the 28 November sermon, Holleman taught that the

disciplinary process is based on Matthew 18:15-17. Further, as initially stated in the

13 November letter, Holleman’s comments throughout the 28 November sermon

made clear that his appeal for commitment to the reconciliation process and

acceptance of personal responsibility from Mrs. Lippard stems from following

Ephesians 4:3. Plaintiffs contend Mrs. Lippard “was always willing to commit to the

reconciliation process, having attended all the reconciliation meetings,” and that she

had acknowledged personal responsibility for her failures because she “had in fact

apologized numerous times for any perceived or actual missteps on her behalf.” These

assertions, however, only illustrate that what is at issue here is not merely a matter

of fact, but what constitutes “willingness to commit” to DHBC’s reconciliation process

and “acceptance of personal responsibility” in accordance with its doctrine.

To evaluate the truth or falsity of these statements, we would need to inquire

into religious doctrine and practice. In particular, we would have to decide whether,

as Plaintiffs contend, Mrs. Lippard’s mere attendance at reconciliation meetings

constituted “willingness to participate” in those meetings, and whether her asserted

apologies to Hix sufficed for “acceptance of personal responsibility” in the context of

DHBC’s reconciliation process. Resolving these questions would involve our courts

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in determining such essential points of doctrine as what “reconciliation,”

“wrongdoing,” and “acceptance of personal responsibility” mean, which would

necessarily involve interpretation of Matthew 18 and Ephesians 4. Courts cannot

make such determinations without running afoul of the First Amendment.

3. Ballot and Absentee Ballot

Plaintiffs next contend the language of the Ballot and Absentee Ballot (“the

ballots”) disseminated to the congregation was defamatory. The specific language

Plaintiffs challenge, which was identical on the ballots, stated:

The Deacons & Personnel Committee recommend that [Mrs.] Lippard be immediately dismissed from her duties as church pianist, due to her unwillingness to admit to any wrongdoing, or to commit unconditionally to the process of reconciliation.

Then, “based upon the following three questions,” the ballots asked congregants to

“render a decision”:

[1]. Have [Mrs. Lippard]’s actions been clearly demonstrated to her and to you as wrong according to the Scriptures? [2]. Have the efforts of the Deacons, Personnel Committee and Pastor to restore her into the fellowship of the Body of Christ been sufficiently exercised with careful deliberation, patience, and graciousness, and according to the Scriptures? [3]. Has [Mrs. Lippard] responded positively as instructed by the Scriptures?

Plaintiffs’ defamation claim based on the language of the ballots, which is similar to

statements made by Holleman in the 13 November letter and 28 November sermon,

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is barred by the ecclesiastical entanglement doctrine of the First Amendment. To

determine the truth or falsity of the claim that Mrs. Lippard was “unwilling[] to admit

to any wrongdoing, or to commit unconditionally to the process of reconciliation,” we

would have to inquire into whether the actions Mrs. Lippard took throughout the

reconciliation process comported with DHBC’s understanding of the requirements of

scripture. The ecclesiastical entanglement doctrine prohibits this inquiry.

4. Communications by Hix about Mr. Lippard

Plaintiffs next argue two statements by Hix were defamatory. They contend

oral communications made by Hix to an unidentified congregant on 23 December

2012 were defamatory. They also contend an email sent to Brewer, a DHBC choir

member, on 8 January 2013 contained a defamatory statement.

Plaintiffs allege that on 23 December 2012, Hix said “[Mr.] Lippard is a liar

and you and other people like you are believing him instead of Scripture.” 3 Without

conceding the statement was made, Defendants contend the statement “was made in

the context of Hix’s interpretation of and Mr. Lippard’s compliance with scripture.”

Therefore, Defendants argue, “[a]n inquiry into the falsity of the statement would

require a comparison of Mr. Lippard’s conduct with Scripture, which also prohibits

lying.” We presume “people like [Brewer]” refers to other DHBC members who

3 We cannot separate the 23 December 2012 statement into two parts and must read it as a whole because it is a complete sentence without a comma that would indicate a compound sentence of two thoughts.

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support Plaintiffs. To decide whether Mr. Lippard lied and if people like Brewer

believed Mr. Lippard instead of DHBC’s interpretation of scripture, we would need

to inquire into DHBC’s definition of lying, when to believe scripture, and how

scripture determines whom to believe. This is an issue over DHBC’s internal customs,

practices, morality, and degree of control between members. It cannot be said that

this statement is purely secular. Analyzing the truth or falsity of this statement

would require us to assess whether the alleged words or deeds comport with or

contravene the teachings of scripture regarding lying and DHBC’s interpretation of

it, an inquiry prohibited by the First Amendment.

Plaintiffs also contend the following statement from an 8 January 2013 email

to Brewer is defamatory: “Note that there are verifiable facts and Biblical scriptures

which [Plaintiffs] are openly denying and defying.” Defendants again argue that “[a]n

inquiry into the falsity of the statement would require a comparison of [Plaintiffs’]

conduct with Scripture and whether they were openly denying and defying the

Scripture.” As we discussed above regarding the 13 November 2012 letter, Plaintiffs

ask us to determine the truth or falsity of Hix’s claim that Plaintiffs were “openly

denying and defying” “verifiable facts and Biblical scriptures.”

This statement arose when Brewer was concerned that “taking anyone off the

[Special Music] schedule” was an inappropriate “form of discipline in a church

setting.” Hix replied, in part, that

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[Brewer] might want to look closely and note that while [Mrs. Lippard] and [Mr. Lippard] were removed from the Special Music schedule, that I also removed myself from that rotation. Note also that there are verifiable facts and Biblical scriptures which they are openly denying and defying. Those facts and scriptures still stand. The church vote allowed [Mrs. Lippard] to keep her position as pianist, but it did not answer the biblical appeal for reconciliation. That appeal was extended by 17 out of 18 of our senior church leaders. Until [Mr. Lippard] and [Mrs. Lippard] are prepared to respond to the appeal which was, has been, and continues to be extended in biblical love, it would not be appropriate to restore them to a position of leading worship within the church.

For many, music is worship as it is a celebration of faith and often a time of prayer.

Confirming the veracity of Hix’s claim would require us to inquire into and examine

DHBC’s internal discipline process, biblical appeals for reconciliation, and Hix’s

ability to direct and control the members of DHBC’s music organization. Hix’s

assessment of whether Plaintiffs are “openly defying” “verifiable facts and Biblical

scriptures” directly informed his decision of whether “it would . . . be appropriate to

restore them to a position of leading worship within [DHBC].” Further, an inquiry

into the falsity of whether Plaintiffs were “openly denying and defying” “verifiable

facts and Biblical scriptures” would also, again, require us to examine DHBC’s

customs and practices relating to the biblically-based reconciliation process. The

ecclesiastical entanglement doctrine under the First Amendment prohibits this

inquiry as well.

5. Communications by Holleman about Plaintiffs to his Congregation

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Plaintiffs next contend statements made by Holleman to various church

members regarding Plaintiffs were defamatory. Specifically, Plaintiffs cite a 16

January 2013 letter from Holleman to Brewer, a 6 April 2013 email from Holleman

to Brewer, and a 25 April 2013 email to Myers.

a. 16 January 2013 Letter

Plaintiffs allege that a litany of excerpts from the 16 January letter were

defamatory. Among others, Plaintiffs claim the following statements made by

Holleman were defamatory: (1) “I was not exaggerating when I said to the church

that [Plaintiffs] have been confronted with appeals for reconciliation 26 times since

2010[]”; (2) “Obviously, [Mrs. Lippard] is not required to do these things [(i.e.,

voluntary service to the church)] as a part of her job description but if there was an

eagerness to serve as a staff member and a joyful participant in the ministry of

[DHBC], it seems that she might find a place of service[]”; (3) “I can’t imagine why

[Mrs. Lippard] would have been resistant to the idea [of voluntary service] to this

day, but that resistance certainly doesn’t communicate a spirit of willingness and

cooperation”; (4) “[Mrs. Lippard is] the present obstacle to reconciliation between her

and [Hix]”; and (5) “No doubt there are more strategies against the church leadership

playing out tonight.”

Analyzing the falsity of excerpts (1)-(4) would require us to interpret or weigh

DHBC’s interpretation of scripture and doctrine. For example, in determining

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whether it is true that “[Plaintiffs] have been confronted with appeals for

reconciliation 26 times,” we would have to determine what constitutes an appeal for

reconciliation within DHBC. Whether Mrs. Lippard was a “joyful participant in the

ministry of the church” and had “a spirit of willingness and cooperation” ultimately

turn on the meaning of those terms within DHBC membership and doctrine. Finally,

determining the falsity of Holleman’s identification of Mrs. Lippard as “the present

obstacle to reconciliation between her and [Hix]” would again require us to interpret

the reconciliation process and the responsibilities of participants according to

scripture as interpreted by DHBC. Each of these examinations would cross the

ecclesiastical boundary line under the First Amendment.

The fifth excerpt that “there are more strategies against the church leadership

playing out tonight” does not directly invoke scripture, but it does involve other

ecclesiastical matters.4 The excerpted statement arose in the midst of Holleman

explaining, to a member of his congregation, his thoughts on the ongoing dispute,

controversy, conversations, confrontations, and involvement of fellow DHBC

members:

I am in heartfelt agreement with you here [that the “back- and-forth” must stop]. Since the vote, the only action taken by the church leadership has been to delay [the Lippards’] reinstatement into the solo rotation. I’ve given our reasons above. While I can’t speak for every member, as far as I’m aware, every new conversation or controversy has been

4 We note scriptural interpretations of this phrase are possible, but Defendants do not make any such argument on appeal.

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initiated by [the Lippards], or by those who have been advocating for their position. You yourself have attempted to engage me in conversation at the church. You have asked to speak with James Orbison. And now you’ve written this letter and had it delivered to me, Bryan Sherrill, and Bill Wooten. [Mr. Lippard] has confronted [Hix] multiple times, and this very day, I’ve met with Billy Lynch for breakfast, whom [Mr. Lippard] had confronted at Church with a copy of Alan’s directives to [Mrs. Lippard]. I’ve learned that [Mr. Lippard] has e-mailed [Hix] requesting an explanation for why he and [Mrs. Lippard] have not been returned to the solo rotation. And Bryan Sherrill indicates that [Mr. Lippard] called him today attempting to “catch” me in some mistake. These are just a few. No doubt there are more strategies against the church leadership playing out tonight. The only time I or the church leadership have engaged in further conversation has been when we have been compelled to answer publicly some charge of wrong doing. You claim that you want the back-and-forth to stop yet here I am, a month after the church vote, writing out an answer to your uninformed accusations of our mishandling of the past issues, while [Hix] and Bryan are fielding additional complaints and accusations from [Mr. Lippard]. It would seem that in large part the back-and-forth ceasing is up to you and [Mr. Lippard]. For my part, you are reading what is at least near to being my last word on the matter. As to your accusation that “Someone, mainly [Hix], wants [Mrs. Lippard] off the piano.” Short of making a motion for [Mrs. Lippard’s] dismissal from the fellowship of the church, what disciplinary action would you have suggested? I think the Deacons brought the best recommendation they could bring that would communicate to [the Lippards] the seriousness of an irreconcilable spirt while also providing grace and room for their appropriate response. I doubt that they would have been any less enraged by a suspension, given the fact that [Mr. Lippard] rejected my offer that he and [Mrs. Lippard] might, like [Hix], take a leave of absence until the matter could be resolved. Your accusation that “mainly” [Hix] wanted [Mrs. Lippard]

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removed from the piano, says more about you [sic] personal opinion of [Hix] than it does about the reality of the issue. I’m sure that [Hix’s] attempts at trying to find a way to work with [Mrs. Lippard] have been a source of frustration for him over the years, but never has he indicated in the slightest that her removal was the solution. [Hix] recognized early on that the roots of their contentious relationship were primarily in [Mrs. Lippard’s] personal dislike of him. His willingness to participate in the series of meetings I had with them was evidence of his desire to address those roots and to make whatever adjustments were needed to better their relationship. Having presided over those meetings, I am convinced that he [sic] effort was sincere. To summarize, nothing in [Hix’s] behavior over the past several months would support your claim that his (or our) aim has been [Mrs. Lippard’s] removal as church pianist.

This quote itself is excerpted from a 13-page pastoral letter. The letter is a formal

“Pastoral Response” to a complaint filed by a member of the church. The letter and

the complaint “regard[] [Mrs.] Lippard” and her “recent disciplinary action.” The

letter concludes that “God Himself will be the judge of this and while I hope that men

will know my heart, I cannot ultimately be persuaded of my rightness or wrongness

by their Biblically unsubstantiated opinions alone.”

Plainly, this controversy and ongoing dispute with the Plaintiffs is a matter of

DHBC’s internal membership, organization, governance, discipline, and degree of

control between members. We cannot decide the rightness or wrongness of this

statement by a pastor communicating with his flock.

b. 6 April 2013 Email

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Plaintiffs also contend Holleman defamed them in a 6 April email to Brewer.

In the email, Holleman stated:

There were several there the Wednesday night that [Mr. Lippard], with [Mrs. Lippard] behind him, blocked [Hix’s] exit from the music room and was aggressively going after [Hix], pointing his finger in [Hix’s] face, an action I recently learned was illegal and could have very well been reported as a crime.

This excerpted statement does not directly involve scripture, but it does involve

DHBC’s customs, doctrine, and practice regarding membership and member conduct.

This accusatory excerpt was made in the midst of an extensive multi-page email chain

that contains several references to scripture and discusses DHBC and Holleman’s

handling of the dispute:5

[Header of the 6 April 2013 9:07 AM email from Brewer to Holleman.]

Hi [Holleman,]

I guess due to you not replying to the last E-Mail, you disagree with having a meeting with [Mrs. Lippard] and [Mr. Lippard].

I am very saddened[.] Could it be that they were wronged and have additional information to prove it[?] Could it be that others should also be present at a meeting to address their part of the issues[?] Could it be that you and the committ[e]es were totally right[?] By giving them an additional meeting[,] could [it] settle the whole matter or not[?] There is everything to gain and nothing to lo[]se. Is

5Alterations to the email chain include adjusting the names of the parties for consistency, removing extraneous spacing and parentheses, adding paragraph breaks, and correcting some grammatical and spelling errors.

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everything better now by not giving them additional attention or not? When I was the[re] last[, DHBC] members were going around telling other members not to speak to [Mr. Lippard].

Is this Christian actions[?] By not giving them the needed attention they deserve[?] You, committee members and others should give them an apology for the way things were handled. You know yourself that [Mr. Lippard] was only protecting his wife and trying to get someone[’s] attenti[on] about setting up a meeting and settling the Issues!

[Holleman] I have been very concerned about your ministry and would not want anything to hinder that[.] Also[,] I always try to think of [DHBC] and ways [to] prevent conflict. [DHBC] has been through many Issues in the past. Mostly petty issues which t[ea]r the cong[r]e[g]ation apart[.] WE should learn from our mistakes[.]

However[,] it appears that we don’t always. That’s also partially why our membership does not grow. I trust that everyone will do what[’]s right through this conflict by showing love and concern for all, even through conflicts.

Signed[,]

[Brewer]

[Header of the 6 April 2013 5:25 PM email by Holleman replying to Brewer.]

I didn’t respond because you wrote that you had said all you wanted on the matter. My assumption was that you had also heard all you wanted.

You’re correct in assuming that I and the Deacons, and the Personnel Committee will not provide another meeting with [Mr. Lippard] and [Mrs. Lippard]. We have had 5 meetings with [Mr. Lippard] and [Mrs. Lippard] and if you count the [DHBC]-wide meeting, they’ve had no fewer than 6 opportunities to ask their questions. In each of these

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meetings we have answered their questions along with numerous times in one on one conversations.

The Deacons have indicated to [Mr. Lippard] that if he wanted to have a conversation about reconciliation, we would be happy to have that conversation. We will not provide [Mr. Lippard] with a public platform to make accusations against [Hix] or the leadership which he cannot give evidence for beyond his own suspicions. I Timothy 5:19 says, “Receive not an accusation against an elder without two or three witnesses.” True, [DHBC] doesn’t elect elders, but leaders serve the same function, particularly staff members. How would you like it if a single person came to me and demanded a church meeting to publicly accuse you of all kinds of things without having a single substantial piece of evidence or a witness to validate those accusations? Would you be so eager for that meeting? I think not.

So then your suggestion that we abandon the Biblical instruction and “give [Mr. Lippard] all the meetings he wants” to make all the accusations he wants certainly does not have the good and health of [DHBC] in mind. You are advocating for [Mr. Lippard]’s desire to do what the scriptures forbid. I am certain that if [Mr. Lippard] had any substantial evidence to validate any of his claims, we would have been informed by now via phone call, E-mail, or personal contact. He certainly has not been reluctant to raise his “points” thus far.

I would add that you continue to refer to “others being in a meeting.” I’m at a loss to understand why you and [Mr. Lippard] cannot seem to understand that [Hix] hasn’t been a part of the discussions since August 22, 2012? We’ve not been defending [Hix], or his actions past or present, yet every time you send an e-mail or every time [Mr. Lippard] confronts someone, it involves [Hix]. The actions of the Leadership and 59% of [DHBC] are not a vindication of [Hix] or his actions, they are simply the actions resulting from [Mr. Lippard] & [Mrs. Lippard]’s refusal to yield to what the Word of God says.

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I very much protest your implied accusation that [Mr. Lippard] has some information that we are trying to suppress by not allowing him to have a meeting. I think seven months of meetings and discussions is ample, in fact abundant, time for him to have brought such evidence forward.

Your opinion is getting pretty clear. You obviously agree with [Mr. Lippard] that we or (I) have not acted Biblically or in a Christian manner towards [Mr. Lippard] and [Mrs. Lippard]. If that’s true then I ask that you provide some evidence of that beyond your own opinion. Otherwise you are very close to becoming a false witness against those who are called to lead [DHBC] according to God’s word. (Ephesians 4:11-12)

An additional meeting will not settle the whole matter, because the “matter” to be settled is whether or not [Mr. Lippard] and [Mrs. Lippard] are going to obey God and the scriptures. They have refused to yield from the beginning to the Word of God. I am exhausted with trying to explain that to you, and your continuing advocacy for [Mr. Lippard] and [Mrs. Lippard] have made it increasingly difficult for us to keep directing their attention to the Biblical injunction to be reconciled. Your encouraging them and lending a sympathetic ear, have only deepened their resolve to reject our appeals and while you think yourself to have been acting in a Christian manner toward them, you have actually (unwittingly or not) contributed to pushing them farther away from the Lord and the true peace that might have been, and still may be, found in Him.

That [Mr. Lippard] and [Mrs. Lippard] are out of fellowship with God and [DHBC] is painfully evident in the methods they are employing against the leadership of [DHBC]. I can’t tell you how many times [Mr. Lippard] has twisted my words to make them say something to fit his agenda. He even claimed that I admitted to him that “I framed him and [Mrs. Lippard] with the August 22nd meeting.” Absurd! He always fails to inform folks that I was very explicit with the conditions set for the meeting, days before,

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at the start, and again at the conclusion of that meeting. [Mr. Lippard] agreed to those conditions, and even admitted later that he did so because he knew that it was the only way he could get a face to face meeting with [Hix].

I ask you[: W]ho was being dishonest there? I was completely straightforward and transparent about the nature of that [Wednesday] meeting [on 22 August 2012], and he agreed only so that he could conceal his true motive. That should tell you that [Mr. Lippard] and [Mrs. Lippard] did not come into that meeting seeking reconciliation as was the stated purpose, but to confront [Hix] with their accusations. And accuse they did! [Mr. Lippard] finally just interrupted me bluntly, dismissed the scripture I had used, and demanded of [Hix] an explanation for the song reassignment. [Hix] answered and that didn’t satisfy them and [Mr. Lippard] and [Mrs. Lippard] immediately went after him. At that point, as indicated to them beforehand, I ended the meeting and informed them that matter would follow the Matthew 18 mandate. There were witnesses there to confirm everything I’ve said about that [Wednesday] meeting.

No person in leadership has endorsed anything less than respectful behavior toward [Mr. Lippard] and [Mrs. Lippard]. If there are members, leadership and otherwise who have who have refused to speak to [Mr. Lippard] and [Mrs. Lippard], they have not done so at my request. I have been cordial and respectful to [Mr. Lippard] and [Mrs. Lippard], prior to the church vote and following it.

If folks have been standoffish, it might have something to do with [Mr. Lippard] and [Mrs. Lippard]’s behavior. Some folks have witnessed their confrontations. There were several there the Wednesday night that [Mr. Lippard], with [Mrs. Lippard behind him, blocked [Hix]’s exit from the music room and was aggressively going after [Hix], pointing his finger in [Hix]’s face, an action I recently learned was illegal and could have very well been reported as a crime. (emphasis added).

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Add to these the numerous “parking lot” confrontations, and angry telephone calls, and it might at least explain why some folks are avoiding them. I’m not suggesting that this is the right response, but you make it sound as though the folks that are “shunning” them are doing so without any provocation at all. To be honest with you, there are a few that are even frightened by [Mr. Lippard]’s aggressiveness, and I’ve told him this. Having said this, I would say that the withholding of full fellowship from a rebellious and disobedient (To the Scriptures) believer has Biblical precedent (2 Thessalonians 3:14-15; Romans 16:17-18).

For this reason, while I have tried to speak to [Mr. Lippard] and [Mrs. Lippard] at every opportunity, and be respectful and cordial, I have not treated them in such a way as to imply or suggest to them that they have been restored to full fellowship with [DHBC]. They cannot reject the Word of God and refuse to be reconciled to their brothers and still enjoy a proper fellowship with God and it is wrong and unloving to treat them in such a way as to obscure that reality. If the Lord brings to mind by the Holy Spirit or through His word that I have wronged or acted wrongly toward [Mr. Lippard] and [Mrs. Lippard] or anyone else, you can be assured that I will make that right without delay. But as I’ve said to you multiple times already, if you or [Mr. Lippard] and [Mrs. Lippard] can demonstrate Biblically that this issue has been mishandled or that grace and mercy and the humility of Galatians 6:1 has been omitted, I will gladly apologize.

Did you know that I have submitted for the review of four fellow Pastors, a written account of every action we’ve taken and every decision I’ve personally made, including all the arguments that [Mr. Lippard] and others have raised[?] [A]nd do you know that they have not discovered a single error in our handling of it, and in fact have commended the [DHBC] leadership for the thoroughness and Biblical consistency with which they’ve navigated through this issue[?] Obviously God will be the final judge, but I find great encouragement that four of my mentors,

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Pastors who have been in the ministry for years, have said that they weren’t sure that they would have “handled” it as well.

For this grace, I am deeply grateful to God. I have spent hours agonizing over decisions and the words with which I should convey them, and in my flesh, I would have surely failed miserably, but all the while, God was impressing me to just follow the Word. With His grace, and to His glory, that’s exactly what we’ve done. I am content if we have been pleasing to Him. You may have been concerned about me personally, but I don’t think you have been concerned about “the ministry to which God has called me.” In fact, I don’t think you really understand that ministry.

For me, church is not merely a background scene in front of which I live my life. I’m not just pulpit furniture that just happens to be in place each Sunday morning, Sunday night, and Wednesday. When I stand in that Pulpit, I feel the weight of the responsibility to “rightly divide the Word.” There is an urgency in my heart that almost makes me feel as though if I don’t preach in such a way as to display the glory of Christ, I will have utterly failed. There’s a desperation in my heart that everyone present might see that we don’t just have a religious book in our hands but the very word and voice of God Almighty. You may think that my aim is to “keep the peace,” but you forget that the Lord Himself said, “Think not that I have come to bring peace on the earth, but a sword….” (Matthew 10:34-39).

Oh don’t misunderstand, I’m a peace lover too. By nature I’m not confrontational at all. But I will not settle for a superficial peace that continues to allow sin to fester and grow under the surface, only to erupt at the slightest “petty” disagreement, and I’m fully aware that that position will not be appreciated by all. Jesus said as much, if you’ll read the entire reference mentioned above (Mat. 10:34-39)[.]

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You’re right, [DHBC] in large part has not learned from its past mistakes and one of those mistakes has been to avoid confrontation when it was actually confrontation that was needed to expose the root that caused it. (1 Corinthians 11:18-19) Equally contributing to that error is the unbiblical idea of the church as a collection of individuals, completely without accountability. We’ve adopted an Americanized Christianity that has everyone as independent and self-determining lone-rangers. Did you know that nothing could be farther from the Bible? What [DHBC] has never learned is that without willful submission to becoming accountable to God and other believers, the intimacy that everyone claims to want and enjoy is impossible. So resistant are we to the ideal of humble submission and willful vulnerability that we’ve decided that we would settle for a shallow, soon to be broken, intimacy. I suspect that [DHBC] has settled for that for so many years that they’ve began to think that’s the norm. It’s not…I assure you!

The Lord can change that though, and I think that’s what He might be up to in all of the last seven months. The question I suppose is this: “will I, will you, will [Mr. Lippard] and [Mrs. Lippard], will [DHBC] trust God enough to simply obey Him? Will we wait for him to lead us through the darkness of this present valley, believing with our whole heart that there’s a bright meadow on the other side?[”]

This may be more than you can digest in one reading, but I don’t think I need to say much more than this. No, I absolutely don’t agree with you on multiple Biblical grounds, but the increasingly antagonistic and accusatory tone of your e-mails suggest to me that I’m alienating you ever farther and since that makes no sense and is not ultimately helpful, I’ll just leave things as they are.

I would add one more question. With the exception of my leaving the jobsite angrily many years ago, [i]n the 28 years you have known me and in the 7 years I’ve served as Pastor at [DHBC], have you observed anything in my character

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that would suggest to you that I would have acted as maliciously in this issue as [Mr. Lippard] has undoubtedly portrayed me to you and others? [I]f not, I can’t understand how you would so quickly attribute to me the character he suggests.

If I have in fact acted as treacherously and deceitfully as [Mr. Lippard] would have you believe, there is a constitutional recourse available to you and [Mr. Lippard]. You can develop and circulate a petition for my dismissal as Pastor. You can force a motion before [DHBC] with a petition signed by 25% of the membership and [DHBC] will be forced to vote on the matter.

To be honest, if I am guilty of what [Mr. Lippard] charges me with and what you suspect me of, you would be well within your Christian duty to do exactly that.

Respectfully and Prayerfully,

Larry

[Header of the 6 April 2013 6:45 PM email from Brewer to Holleman.]

I know that the committee members were addressing [Mrs. Lippard] only, I knew that then[.] However[, Hix] was [a part] of the conflict with the song and as Director. This part is my real issue. I have had issues with [Hix] before and believe there [is] more to it. [N]o one is perfect[.] [H]owever[, Hix] should be willing to address their issues. That may be why they want another meeting. Another meeting can[’]t hurt and may settle it all. No reply necessary[.]

[Header of the 7 April 2013 email from Brewer to Holleman.]

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I was thinking about the letter overnight. I think how ironic you twist and turn things around and now blaming me. I guess I am to blame for at least one thing[—s]howing concern[.]

Let me ask you this[, d]id [Mrs. Lippard] agree to go through reconciliation about the issues 2 1/2 years ago and did you say things were going well[?] Did you say that you were going to recommend to the [D]eacons to drop the issues[?] If that is the case, why was that reinstated as a problem[?] I have said in the beginning that [Hix] should be at the meeting on Wednesday night in question. The song issue has not been settled. Until [Hix] is willing to meet with [Mrs. Lippard] and [Mr. Lippard] and settle their issues. There is no reconciliation. I don’t know what they wanted to discuss in a meeting[.] But[,] I think another meeting is necessary. If [Hix] had been present at the Wednesday night meeting in question, things could have been possibly settled. I never intended to question your abilities[.] Only to grab your attention[.] I would not want you to lo[]se your job over this. Also[, i]t bothers me big time that this can and does affect [DHBC] membership. We must handle issues above board as quickly as possible.

Sign

Reply

As in Harris, we would be forced to determine whether the statement at issue

is proper in light of DHBC’s customs, doctrine, and practice regarding membership

and conduct. The statement arose from Holleman’s observations of how “folks” in the

church “have been standoffish” and “have witnessed [Plaintiffs’] confrontations.” The

email’s language, after the statement, explicitly discusses that “withholding of full

fellowship from a rebellious and disobedient (To the Scriptures) believer has Biblical

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precedent (2 Thessalonians 3:14-15; Romans 16:17-18).” Looking into DHBC’s

membership governance and how it should react to what it considers improper

conduct would require examining church customs, doctrine, and practice.

c. 25 April 2013 Letter

Finally, Plaintiffs contend Holleman defamed them in the 25 April letter to

Mr. Myers. Specifically, Plaintiffs challenge Holleman’s statement that “[Hix]

indicated his willingness to acknowledge his own failures and ask forgiveness. [Mrs.

Lippard] did not!” They argue that statement is false because “[Mrs. Lippard]

apologized to Hix several times, even in writing, for any perceived or actual missteps

on her behalf.” As in the 28 November 2012 sermon discussed above, we are barred

from evaluating this statement under the ecclesiastical entanglement doctrine

because, in determining the truth or falsity of the claim that Mrs. Lippard did not

“acknowledge [her] own failures and ask forgiveness,” we would have to interpret and

weigh DHBC doctrine to determine what constitutes “acknowledgement” of failures

and “ask[ing] forgiveness” as part of DHBC’s process of reconciliation. Therefore,

analysis of this statement is barred by the First Amendment.

None of the statements at issue here are purely secular, but we can imagine

scenarios where members of a religion make defamatory statements wholly apart

from religion. Churchgoers could make defamatory statements against one another

outside their religious lives and instead in their personal, business, academic, or

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other aspects of their temporal existence. But the statements at issue here were

made between members of the same congregation—including its pastor—about an

internal dispute regarding ecclesiastical matters. All the statements before us would

unconstitutionally require examining or interpreting ecclesiastical matters or

religious doctrine, and we may not do so under the First Amendment or the North

Carolina Constitution.

CONCLUSION

Plaintiffs appeal the trial court’s grant of summary judgment and argue

several errors. We affirm the trial court’s order on the ground that all statements

Plaintiffs challenge are barred by the ecclesiastical entanglement doctrine. Having

determined all of Plaintiffs’ claims on this ground, we do not address Plaintiffs’

remaining challenges.

AFFIRMED.

Judge BERGER concurs.

Chief Judge MCGEE concurs in part, dissents in part, and concurs in the

judgment in a separate opinion.

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McGEE, Chief Judge, concurring in part, dissenting in part, and concurring in

the judgment.

I disagree with the majority that the ecclesiastical entanglement doctrine

under the Establishment Clause and Free Exercise Clause of the First Amendment

and Article I, Section 13 of the Constitution of North Carolina bars the courts of our

state from considering defamation claims as to all the alleged statements challenged

by Plaintiffs in the present case. I would hold that some of the claims at issue are

barred by the ecclesiastical entanglement doctrine; however, four others are not.

I. Summary

In determining whether the ecclesiastical entanglement doctrine bars the

courts of our state from considering an issue, the fundamental question is “whether

resolution of the legal claim requires the court to interpret or weigh church doctrine.”

Smith v. Privette, 128 N.C. App. 490, 494, 495 S.E.2d 395, 398, appeal dismissed, 348

N.C. 284, 501 S.E.2d 913 (1998) (citing Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696, 710, 49 L.Ed.2d 151, 163 (1976)). In the context of a defamation claim,

which in North Carolina as in other states includes as an essential element the falsity

of the statement made, whether courts may apply neutral principles to resolve the

claim depends on whether determining the truth or falsity of the allegedly

defamatory statement “requires the court to interpret or weigh church doctrine.”

Although the majority applies this test correctly in some places, in others it expands

this analysis by holding that courts are barred from analyzing defamation claims LIPPARD V. HOLLEMAN

McGEE, C.J., concurring in part and dissenting in part

where they arise out of “matter[s] of [] internal membership, organization,

governance, discipline, and degree of control between members[,]” even when the

allegedly defamatory statements do not on their face address those topics and

determining the truth or falsity of those statements would not require our courts to

pass upon ecclesiastical issues, such as where one party accuses another of a crime,

or of lying about “verifiable facts.” The majority’s reading is at odds with precedent

in this state and would “go beyond First Amendment protection and cloak [religious]

bodies with an exclusive immunity greater than that required for the preservation of

the principles constitutionally safeguarded,” Smith, 128 N.C. App. at 495, 495 S.E.2d

at 398 (citation omitted), effectively prohibiting recovery by those harmed by

tortfeasors on the basis of the victims’ religious affiliation.6

In the case of defamation claims, I would hold that courts must evaluate the

specific elements of the claim, including the falsity of the alleged statement, and

determine whether “resolution of [the truth or falsity of the alleged statement]

requires the court to interpret or weigh church doctrine. If not, the First Amendment

is not implicated and neutral principles of law are properly applied to adjudicate the

claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398. Based on this analysis, I

concur with the majority’s holding for some of Plaintiffs’ defamation claims that they

6 See N.C. Const. Art. I, sec. 18 (“every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law[.]”); id. Art. I, sec. 19 (“No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of . . . religion . . . .”).

2 LIPPARD V. HOLLEMAN

are barred because resolving the claims would require courts to interpret or weigh

church doctrine. For four allegedly defamatory statements discussed below, however,

I disagree and would hold that there is no need for the court to interpret or weigh

church doctrine in its adjudication of the truth or falsity of these claims. Therefore,

I dissent in part.

For the claims that I would hold are not barred by the ecclesiastical

entanglement doctrine, I would nevertheless hold that Plaintiffs have not shown

sufficient evidence for libel per se or special damages as required for libel or slander

per quod. Therefore, I concur in the majority’s judgment affirming the trial court’s

grant of summary judgment for Defendants.

II. Analysis

The Establishment Clause and Free Exercise Clause of the First Amendment

and Article I, Section 13 of the North Carolina Constitution prohibit civil courts “from

becoming entangled in ecclesiastical matters.” Doe v. Diocese of Raleigh, 242 N.C.

App. 42, 47, 776 S.E.2d 29, 35 (2015) (citation omitted); see Harris v. Matthews, 361

N.C. 265, 270, 643 S.E.2d 566, 569 (2007) (“The constitutional prohibition against

court entanglement in ecclesiastical matters is necessary to protect First Amendment

rights identified by the ‘Establishment Clause’ and the ‘Free Exercise Clause.’”

(citation omitted)). Our Supreme Court has long defined an “ecclesiastical matter”

as

3 LIPPARD V. HOLLEMAN

one which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decisions will be respected by civil tribunals.

E. Conference of Original Free Will Baptists of N.C. v. Piner, 267 N.C. 74, 77, 147

S.E.2d 581, 583 (1966) (citation and quotation marks omitted), overruled in part on

other grounds by Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973).

In the present case, however, Plaintiffs challenge neither the “adoption and

enforcement within a religious association of needful laws and regulations for the

government of membership,” nor DHBC’s “power of excluding from such associations

those deemed unworthy of membership by the legally constituted authorities of the

church.”7 Whether ecclesiastical matters are implicated in Plaintiffs’ claims for

defamation in the present case turns on whether the claims “concern doctrine, creed,

or form of worship of the church.”

“The dispositive question” in determining whether a court is barred from

deciding a cause of action because it would become entangled in ecclesiastical matters

7 In a previous case this Court held the same plaintiffs were barred from doing so. See Lippard v. Diamond Hill Baptist Church, ___ N.C. App. ___, ___, 821 S.E.2d 246, 249 (2018) (holding plaintiffs’ claim they were improperly excluded from church even though they did not “take any action to have themselves removed from church membership” was ecclesiastical matter under above definitions) (citation omitted).

4 LIPPARD V. HOLLEMAN

“is whether resolution of the legal claim requires the court to interpret or weigh

church doctrine. If not, the First Amendment is not implicated and neutral principles

of law are properly applied to adjudicate the claim.” Smith, 128 N.C. App. at 494,

495 S.E.2d at 398 (citing Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163). The

application of the ecclesiastical entanglement doctrine to defamation claims is a

question of first impression in North Carolina and our precedents delineate the

contours of the ecclesiastical entanglement doctrine and are applicable here.

A. North Carolina Caselaw on Ecclesiastical Entanglement Doctrine

In Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973), which this Court

described as the “seminal case” on the ecclesiastical entanglement doctrine in Emory

v. Jackson Chapel First Missionary Baptist Church, 165 N.C. App. 489, 493-94, 598

S.E.2d 667, 671 (2004), a dissenting faction of a Baptist church filed a complaint

against members of the church and the pastor seeking a declaration that the plaintiffs

were the “true congregation,” that the pastor-defendant “be restrained from

continuing to act as its pastor” and that the defendants be required to surrender the

church property to the plaintiffs. Walker, 284 N.C. at 307, 200 S.E.2d at 642. The

complaint alleged that a division had arisen in the congregation and the plaintiffs

remained faithful to the previous doctrines and practices of the church while the

defendants had departed from those doctrines and practices. Id. at 307, 200 S.E.2d

at 643. The trial court submitted questions to the jury asking it to determine (1)

5 LIPPARD V. HOLLEMAN

whether plaintiffs remained faithful to the doctrines and practices of the church as

previously practiced and (2) whether the defendants “departed radically and

fundamentally from the characteristic usages, customs, doctrines and practices of the

[church.]” Id. at 308, 200 S.E.2d at 643.

Our Supreme Court applied the Supreme Court of the United States’ decision

in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial

Presbyterian Church, 393 U.S. 440, 21 L.Ed.2d 658 (1969), reasoning that “questions

must be resolved on the basis of [neutral] principles of law”—principles “developed

for use in all property disputes.” Id. at 319, 200 S.E.2d at 650 (citation omitted). For

example, courts could determine “(1) [w]ho constitutes the governing body of this

particular [] church, and (2) who has that governing body determined to be entitled

to use the properties.” In contrast, the First Amendment and Article I, Section 13 of

the Constitution of North Carolina prohibit a decision of property rights based on “a

judicial determination that one group of claimants has adhered faithfully to the

fundamental faiths, doctrines and practices of the church . . . while the other group

of claimants has departed substantially therefrom.” Id. at 318, 200 S.E.2d at 649.

Although our Supreme Court noted that the plaintiffs could have prevailed “by

showing that such action was not taken in a meeting duly called and conducted

according to the procedures of the church,” id. at 320, 200 S.E.2d at 651, it concluded

there was no evidence in the record to support such assertion and the trial court’s

6 LIPPARD V. HOLLEMAN

opinion must have been based on an inquiry barred by the ecclesiastical

entanglement doctrine. Id. at 321, 200 S.E.2d at 651.

Notably, Atkins does not bar all inquiries in disputes over church property

merely because the property is church property, the parties are religious members

and organizations, or the dispute arose in a religious context. Rather, our Supreme

Court held that “[i]t nevertheless remains the duty of civil courts to determine

controversies concerning property rights over which such courts have jurisdiction and

which are properly brought before them[.]” Id. at 318, 200 S.E.2d at 649. Relying on

Presbyterian, our Supreme Court stated that “[n]either the First Amendment to the

Constitution of the United States nor the comparable provision in Article I, Section

13, of the Constitution of North Carolina deprives those entitled to the use and control

of church property of protections afforded by government to all property owners alike,

such as . . . access to the courts for the determination of contract and property rights.”

Id. at 318, 200 S.E.2d at 649. In conclusion, “[w]here civil, contract[,] or property

rights are involved, the courts will inquire as to whether the church tribunal acted

within the scope of its authority and observed its own organic form and rules.” Id. at

320, 200 S.E.2d at 650 (quoting W. Conference of Original Free Will Baptists v. Creech,

256 N.C. 128, 140-41, 123 S.E.2d 619, 627 (1962)).

In Harris v. Matthews, our Supreme Court reaffirmed the principles of Atkins

and applied them to a new cause of action—a claim for breach of fiduciary duty by a

7 LIPPARD V. HOLLEMAN

minority faction of a congregational church against the pastor, secretary, and chair

of the board of trustees, based on the allegation that the pastor-defendant “ha[d]

usurped the governmental authority of the church’s internal governing body.” Harris,

361 N.C. at 272, 643 S.E.2d at 571. The Supreme Court noted that the plaintiffs

claimed the defendants breached their fiduciary duty “by improperly using church

funds, which constitutes conversion.” Id. at 273, 643 S.E.2d at 571. Our Supreme

Court held that the issue of whether the expenditures were proper could not be

resolved by neutral principles of law because “[d]etermining whether actions,

including expenditures, by a church’s pastor, secretary, and chairman of the Board of

Trustees were proper requires an examination of the church’s view of the role of the

pastor, staff, and church leaders, their authority and compensation, and church

management[,]” and “[b]ecause a church’s religious doctrine and practice affects its

understanding of each of these concepts[.]” Id. at 273, 643 S.E.2d at 571. Although

the ecclesiastical entanglement doctrine barred the claim at issue, the Harris Court

reaffirmed that “[w]here civil, contract[,] or property rights are involved, the courts

will inquire as to whether the church tribunal acted within the scope of its authority

and observed its own organic forms and rules.” Id. at 274-75, 643 S.E.2d at 572

(citation omitted).

This Court has applied the principles of the ecclesiastical entanglement

doctrine in Atkins and Harris to other causes of action and clarified the test for

8 LIPPARD V. HOLLEMAN

whether the ecclesiastical entanglement doctrine will bar courts from considering a

claim. In the leading case of Smith v. Privette, the plaintiffs, former church

employees, sued a United Methodist Church, the District of the North Carolina

Conference of the United Methodist Church, and the North Carolina Conference of

the United Methodist Church (together, “church defendants”), alleging claims for

negligent retention and supervision based on sexual misconduct by a pastor against

the employees. Reversing the trial court, this Court held the ecclesiastical

entanglement doctrine under the First Amendment did not bar courts from deciding

the negligent retention and supervision claims. Smith, 128 N.C. App. at 495, 495

S.E.2d at 398. This Court held that, in determining whether the ecclesiastical

entanglement doctrine would bar a claim, it must answer “the dispositive question”

of “whether resolution of the legal claim requires the court to interpret or weigh

church doctrine. If not, the First Amendment is not implicated and neutral principles

of law are properly applied to adjudicate the claim.” Id. at 494, 495 S.E.2d at 398

(citing Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163). This Court applied that test

and held that while “the decision to hire or discharge a minister is inextricable from

religious doctrine and protected by the First Amendment from judicial inquiry,” the

plaintiffs’ claim, rather than requiring “the trial court to inquire into the [c]hurch

[d]efendants’ reasons for choosing Privette to serve as a minister,” “instead presents

the issue of whether the [c]hurch [d]efendants knew or had reason to know of

9 LIPPARD V. HOLLEMAN

Privette’s propensity to engage in sexual misconduct,” which is “conduct that the

[c]hurch [d]efendants do not claim is part of the tenets or practices of the Methodist

Church.” Id. at 495, 495 S.E.2d at 398 (internal citation omitted). Therefore, “there

[wa]s no necessity for the court to interpret or weigh church doctrine in its

adjudication of the [p]laintiffs’ claim for negligent retention and supervision.” Id. at

495, 495 S.E.2d at 398. In so holding, this Court noted that “[t]he First

Amendment . . . does not grant religious organizations absolute immunity from

liability.” Id. at 494, 495 S.E.2d at 397. “Indeed, the application of a secular standard

to secular conduct that is tortious is not prohibited by the Constitution.” Smith, N.C.

App. at 494, 495 S.E.2d at 397 (internal citations and quotation marks omitted).

In Emory v. Jackson Chapel First Missionary Baptist Church, the plaintiff

church members brought an action against the church and the pastor, alleging they

provided insufficient notice to plaintiffs as required by the church bylaws for a

meeting at which the church altered its corporate structure and that defendants also

violated the plaintiffs’ contractual and property rights by failing to follow the

procedure. This Court explicitly noted that “[o]ur Supreme Court has held that a

trial court’s exercise of jurisdiction is improper only where ‘purely ecclesiastical

questions and controversies are involved.’” Id. at 492, 598 S.E.2d at 670 (quoting W.

Conference of Original Free Will Baptists of N.C. v. Creech, 256 N.C. 128, 140, 123

S.E.2d 619, 627 (1962)). This Court held the ecclesiastical entanglement doctrine

10 LIPPARD V. HOLLEMAN

barred the trial court from determining whether the defendants provided the

plaintiffs with sufficient notice under the bylaws, because ambiguities existed in the

bylaws and “long-established church customs exist[ed] that may [have] alter[ed] the

interpretation of the notice requirements [in the bylaws].” Id. at 492, 165 N.C. App.

at 670. Thus, “the trial court would be required to delve into ‘ecclesiastical matters’

regarding how the church interprets the [] notice requirements and types of meetings

[in the bylaws.]” Id. at 493, 598 S.E.2d at 671 (quoting Piner, 267 N.C. at 77, 147

S.E.2d at 583). In addition, this Court noted that, while plaintiffs asserted contract

and property rights were implicated, the “heart of this matter [wa]s a change in the

structure of the church” and “the claims of [the] plaintiffs [] only tangentially

affect[ed] property rights.” Id. at 494, 495, 598 S.E.2d at 671, 672. Thus, there was

no “substantial property right” affected by the incorporation and the trial court

properly held the ecclesiastical entanglement doctrine barred the claim. Id. at 495,

598 S.E.2d at 672.

Although the plaintiffs’ claims in Emory “only tangentially affect[ed] property

rights,” id. at 495, 598 S.E.2d at 672, this Court has clarified the relationship between

church membership as an ecclesiastical matter and property rights in subsequent

cases. In Tubiolo v. Abundant Life Church, Inc., 167 N.C. App. 324, 605 S.E.2d 161

(2004), we held that “membership in a church is a core ecclesiastical matter[,]” and

“[i]t is an area where the courts of this State should not become involved.” Tubiolo,

11 LIPPARD V. HOLLEMAN

167 N.C. App. at 328, 605 S.E.2d at 164. However, we also held that “the plaintiffs’

membership in the defendant is in the nature of a property interest, and that the

courts do have jurisdiction over the very narrow issue of whether the bylaws were

properly adopted by the defendant.” Id. at 329, 605 S.E.2d at 164 (citing Bouldin v.

Alexander, 82 U.S. 131, 139-40, 21 L.Ed. 69, 71-2 (1872)). Therefore, the case was

distinguishable from Emory, because membership rights were implicated and “[t]his

inquiry [into whether the bylaws were properly adopted] can be made without

resolving any ecclesiastical or doctrinal matters.” Id. at 329, 605 S.E.2d at 164-65.

Nevertheless, this Court provided an important caveat on Tubiolo in Azige v. Holy

Trinity Ethiopian Orthodox Tewahdo Church, 249 N.C. App. 236, 790 S.E.2d 570

(2016), where we held that the trial court was barred from considering issues based

on church membership status because the issues “would require interpretation of

[church] bylaws which do impose doctrinal requirements.” Azige, 249 N.C. App. at

242, 790 S.E.2d at 575. For example, “[t]he courts c[ould ]not determine the ‘immoral

behavior’ of plaintiffs for purposes of the bylaws . . . .” Id. at 244, 790 S.E.2d at 575.

These claims “raise questions which . . . would ‘require[] the court to interpret or

weigh church doctrine’ in contravention of the First Amendment,” violating the test

in Smith. Id. at 244, 790 S.E.2d at 575 (quoting Davis v. Williams, 242 N.C. App.

262, 892, 774 S.E.2d 889, 892 (2015)).

12 LIPPARD V. HOLLEMAN

Besides property claims which involve ecclesiastical matters, this Court has

also addressed tort and contract claims under the ecclesiastical entanglement

doctrine. In Doe v. Diocese of Raleigh, the plaintiff filed complaints against the

Diocese of Raleigh, the Bishop of the Diocese, and a priest of the diocese alleging,

among other claims, claims for negligence against the Diocese and the Bishop,

arguing they negligently supervised the priest and failed to educate the plaintiff

about boundaries or require STD testing by the priest. Doe, 242 N.C. App. at 43-44,

776 S.E.2d at 32-33. Relying on Smith and Harris, this Court “examine[d] each of

[the p]laintiff’s remaining causes of action against the Diocese [d]efendants in order

to determine whether its adjudication would require ‘an impermissible analysis by

the court based on religious doctrine or practice.’” See id. at 49, 776 S.E.2d at 36

(citing Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 711, 714

S.E.2d 806, 810 (2011); Harris, 361 N.C. at 274, 643 S.E.2d at 572).

As to the claim for negligent supervision, this Court analogized to the negligent

supervision claim in Smith and held that in Doe, as in Smith, the ecclesiastical

entanglement doctrine did not bar courts from determining whether the elements of

negligent supervision could be established because, in both cases, there was a

“commonsense understanding that sexual misconduct is not ‘part of the tenets or

practices of the [church.]’” Id. at 54, 776 S.E.2d at 38-39. Furthermore, this Court

held that adjudicating the negligent supervision claim would not require the trial

13 LIPPARD V. HOLLEMAN

court to determine issues that “are inextricably bound up with church doctrine,” “such

as (1) whether [the priest] should have ever been incardinated; (2) whether he should

have been allowed to remain a priest; or (3) whether his relationship with the Diocese

should have been severed.” Id. at 55, 776 S.E.2d at 39. “[T]he issue to be determined

in connection with [the p]laintiff’s negligent supervision claim [wa]s a purely secular

one.” Id. at 55, 776 S.E.2d at 39.

In contrast, this Court held courts were barred from considering plaintiff’s

claim that the Diocese negligently failed to compel the priest to undergo STD testing

because “this theory of liability is premised on the tenets of the Catholic church—

namely, the degree of control existing in the relationship between a bishop and a

priest,” and it “seeks to impose liability based on the Diocese [d]efendants’ alleged

failure to exercise their authority over a priest stemming from an oath of obedience

taken by him pursuant to the church’s canon law.” Id. at 56, 776 S.E.2d at 40

(emphasis in original). Thus, this claim fails because “a civil court is constitutionally

prohibited from ‘interpos[ing] its judgment’ on the proper role of church leaders and

the scope of their authority ‘[b]ecause a church’s religious doctrine and practice affect

its understanding of each of these concepts.’” Id. at 56, 776 S.E.2d at 40 (quoting

Harris, 361 N.C. at 273, 643 S.E.2d at 571).

Finally, this Court addressed a claim for breach of contract in Bigelow v.

Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016). In

14 LIPPARD V. HOLLEMAN

Bigelow, a pastor claimed the defendants, a Baptist church and its deacons, breached

a contract and violated the North Carolina Wage and Hour Act by failing to pay him

compensation and benefits after he became ill pursuant to a written contract entered

into between himself and the defendants. Bigelow, 247 N.C. App. at 402, 786 S.E.2d

at 360. This Court held the argument that “the First Amendment of the United

States Constitution immunizes, without exception, a religious institution from

liability arising out of a contract between the religious institution and its ministerial

employees,” was inconsistent with Smith. Id. at 411, 786 S.E.2d at 366.

Furthermore, this Court held the plaintiff’s claims did not “ask[] the court to address

ecclesiastical doctrine or church law”; rather, they “require[d] the court only to make

a secular decision regarding the terms of the parties’ contract and to apply the neutral

principles of the Wage and Hour Act.” Id. at 411-12, 786 S.E.2d at 366. Therefore,

the ecclesiastical entanglement doctrine did not bar courts from considering the

plaintiffs’ contract claims.

B. Application of Ecclesiastical Entanglement Doctrine to Defamation Claims

In summary, although the issue of the application of the ecclesiastical

entanglement doctrine to defamation claims is a question of first impression for North

Carolina, our state’s extensive caselaw on the doctrine is “equally applicable here.”

See Doe, 242 N.C. App. at 49, 776 S.E.2d at 36.

15 LIPPARD V. HOLLEMAN

Our courts must look to the specific elements of the cause of action to determine

whether “neutral principles of law exist to resolve plaintiffs’ claims.” Harris, 361 N.C.

at 273-74, 643 S.E.2d at 571. For instance, in Harris, our Supreme Court looked to

the specific elements of the cause of action for breach of fiduciary duty and, in

particular, the specific theory under the element of breach advanced by the plaintiff

(i.e., “improperly using church funds,” or “conversion”) in order to determine whether

the ecclesiastical entanglement doctrine would bar the claim. See id. at 273, 643

S.E.2d at 571. Because resolving that specific element would require courts to

determine whether actions by the church leadership were “proper” based on the

church’s view of the roles of those individuals, the Supreme Court held the claim in

that case was barred. Id. at 273, 643 S.E.2d at 571. Our courts have first identified

the cause of action and the specific elements of that claim at issue in determining

whether the claim is barred by the ecclesiastical entanglement doctrine. Our courts

then determine whether “neutral principles of law exist to resolve plaintiffs’ claims.”

Harris, 361 N.C. at 273-74, 643 S.E.2d at 572; see Atkins, 284 N.C. at 319, 200 S.E.2d

at 650 (“[D]eterminations must be made pursuant to ‘neutral principles of law,

developed for use in all property disputes.’” (citation omitted)). This Court has held

that we must answer “[t]he dispositive question” of “whether resolution of the legal

claim requires the court to interpret or weigh church doctrine. If not, the First

Amendment is not implicated and neutral principles of law are properly applied to

16 LIPPARD V. HOLLEMAN

adjudicate the claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398 (citing

Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163).

In the present case, Plaintiffs allege multiple claims for defamation, including

libel and slander per se and libel and slander per quod. “In order to recover for

defamation, a plaintiff generally must show that the defendant caused injury to the

plaintiff by making false, defamatory statements of or concerning the plaintiff, which

were published to a third person.” Desmond v. News and Observer Pub. Co., 241 N.C.

App. 10, 16, 772 S.E.2d 128, 135 (2015) (citation omitted). The only element of

defamation that Defendants argue violates the ecclesiastical entanglement doctrine

is the first element: the falsity of the alleged statement. I would hold that, in order

to determine whether courts are barred from considering a claim for defamation, they

must evaluate the specific elements of the claim, including the falsity of the alleged

statement, and determine whether “resolution of [the truth or falsity of the alleged

statement] requires the court to interpret or weigh church doctrine. If not, the First

Amendment is not implicated and neutral principles of law are properly applied to

adjudicate the claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398. However, if

resolution of the claim would require courts to interpret or weigh church doctrine, the

ecclesiastical entanglement doctrine under the First Amendment and Article I,

Section 13 of the Constitution of North Carolina prohibit them from adjudicating the

claim.

17 LIPPARD V. HOLLEMAN

This statement of the law, grounded in our Court’s precedent and first adopted

from United States Supreme Court precedent, is more consistent with precedent than

that adopted in the majority’s opinion, which states that “[f]or defamation claims, we

must consider whether a statement is true or false without examining or inquiring

into ecclesiastical matters or church doctrine.” The majority’s imprecise rule

conflates the broad prohibition against courts becoming entangled in “ecclesiastical

matters” with the test adopted in Smith for determining whether “neutral principles

of law are properly applied to adjudicate the claim.” Smith, 128 N.C. App. at 494,

495 S.E.2d at 398 (citing Milivojevich, 426 U.S. at 710, 49 L.Ed.2d at 163). Where

neutral principles of law can be applied, resolving the claim would not impermissibly

entangle the court in ecclesiastical matters. For instance, in Tubiolo, this Court held

that “[m]embership in a church is a core ecclesiastical matter.” Tubiolo, 167 N.C.

App. at 328, 605 S.E.2d at 164. We nevertheless held that “the plaintiffs’ membership

in [a church] is in the nature of a property interest, and []the courts do have

jurisdiction over the very narrow issue of whether the bylaws were properly adopted

by the [church].” Tubiolo, 167 N.C. App. at 329, 605 S.E.2d at 164.

The majority incorrectly asserts, relying on Doe, that “[o]nly when an ‘issue to

be determined in connection with [a party’s] claim is a purely secular one,” then

“[n]eutral principles of law govern th[e] inquiry and . . . subject matter jurisdiction

exists in the trial court over th[e] claim.’” Maj. Op. at 13 (emphasis in original)

18 LIPPARD V. HOLLEMAN

(quoting Doe, 242 N.C. App. at 55, 776 S.E.2d at 39). This is a misstatement of Doe

and contrary to Emory where this Court noted that “[o]ur Supreme Court has held

that a trial court’s exercise of jurisdiction is improper only where ‘purely ecclesiastical

questions and controversies are involved.’” Emory, 165 N.C. App. at 492, 598 S.E.2d

at 670 (quoting Creech, 256 N.C. at 140, 123 S.E.2d at 627); accord W. Conference of

Original Free Will Baptists v Creech, 256 N.C. 128, 140, 123 S.E.2d 619, 627 (1962)

(“The legal or temporal tribunals of the State have no jurisdiction over, and no

concern with, purely ecclesiastical questions and controversies . . . but the courts do

have jurisdiction, as to civil, contract[,] and property rights which are involved in, or

arise from, a church controversy.” (quoting Reid, 241 N.C. 201, 85 S.E.2d 114)).

Under Doe, while a claim being “purely secular” is a sufficient condition to avoid the

ecclesiastical entanglement doctrine, it is not a necessary one, and there may at times

be a gray area of questions between those that are “purely secular” and “purely

ecclesiastical.”

The majority’s approach to defamation claims does not consider our precedent

which provides that “the courts do have jurisdiction, as to civil, contract[,] and

property rights which are involved in, or arise from, a church controversy.” Creech,

256 N.C. at 140, 123 S.E.2d at 627 (emphasis added) (quoting Reid, 241 N.C. 201, 85

S.E.2d 114). Where “neutral principles of law exist to resolve plaintiffs’ claims,”

Harris, 361 N.C. at 273-74, 643 S.E.2d at 571-72, courts have not only the power but

19 LIPPARD V. HOLLEMAN

the duty to resolve the plaintiffs’ claims, because “[n]either the First Amendment to

the Constitution of the United States nor the comparable provision in Article I,

Section 13, of the Constitution of North Carolina deprives [participants in religious

life] of protections afforded by government to all . . . , such as . . . access to the courts

for the determination of [civil, ]contract[,] and property rights.” Atkins, 284 N.C. at

318, 200 S.E.2d at 649. In the case of defamation claims, I would hold that neutral

principles of law exist and the ecclesiastical entanglement doctrine does not bar a

claim where resolving the claim’s elements, including determining the truth or falsity

of the alleged defamatory statement, would not require the court to interpret or weigh

church doctrine.

C. Analysis of Plaintiffs’ Claims

I concur in the majority’s analysis of Plaintiffs’ defamation claims based on

statements made by Mr. Holleman in the 13 November 2012 Letter, the 28 November

2012 Sermon, the Ballot and Absentee Ballot, claims based on four statements made

in the 16 January 2013 letter Mr. Holleman sent to Mr. Brewer, and the claim based

on a statement made in the 25 April 2013 letter Mr. Holleman sent to Mr. Myers.

Analyzing these statements would require our courts to “interpret or weigh church

doctrine,” and, therefore, resolving the claims would impermissibly entangle courts

in ecclesiastical questions in violation of the First Amendment and Article I, Section

13 of the Constitution of North Carolina.

20 LIPPARD V. HOLLEMAN

I disagree with the majority’s analysis of Plaintiffs’ defamation claims based

on the 23 December 2012 oral statement allegedly made by Mr. Hix to an unidentified

congregant; the statement in the 8 January 2013 email to Mr. Brewer, a church choir

member; one claim based on a statement made in the 16 January 2013 letter Mr.

Holleman sent to Mr. Brewer; and the claim based on a statement made in the 6 April

2013 email Mr. Holleman also sent to Mr. Brewer. In its analysis of these statements,

the majority expands the ecclesiastical entanglement doctrine to bar defamation

claims that can be resolved by the application of neutral principles of law. I will

analyze these statements in turn.

(1) 23 December 2012 Alleged Oral Statement by Mr. Hix

Plaintiffs argue the following statement they allege Mr. Hix made to an

unidentified DHBC congregant on 23 December 2012 is defamatory: “[Mr.] Lippard

is a liar and you and other people like you are believing him instead of Scripture.”

[R18, 157] In response, Defendants argue the statement “was made in the context

of Mr. Hix’s interpretation of and Mr. Lippard’s compliance with Scripture” and that

“[a]n inquiry into the falsity of the statement would require a comparison of Mr.

Lippard’s conduct with Scripture, which also prohibits lying. (E.g., Rev. 21:8)” Def.

Br. at 29-30 The majority argues that “we would need to inquire into DHBC’s

definition of lying, when to believe scripture, and how scripture determines whom to

21 LIPPARD V. HOLLEMAN

believe,” and that “[t]his is an issue over DHBC’s internal customs, practices,

morality, and degree of control between members.”

This statement contains two independent clauses, each with a complete

thought. First, I would hold that courts would not have to interpret or weigh church

doctrine in order to determine the truth or falsity of the first part of the claim, that

“[Mr.] Lippard is a liar.” Contrary to the arguments of Defendants and the majority,

the meaning of “liar” in this alleged oral statement is not ambiguous and would not

require interpretation of the Book of Revelation, or interpretation or weighing of

“DHBC’s definition of lying” to determine. In interpreting allegedly defamatory

statements, our courts construe the meaning of statements “as ordinary people would

understand” them. Renwick v. News and Observer Pub. Co., 310 N.C. 312, 319, 312

S.E.2d 405, 409 (1984). In ordinary usage, “liar” means “a person who tells lies,” and

“lie” means, inter alia, “an assertion of something known or believed by the speaker

to be untrue with intent to deceive.” See Merriam-Webster’s Collegiate Dictionary

716, 717 (11th Ed. 2003). Although Mr. Hix is an employee of DHBC, there is no

indication that there is a special “definition of lying” unique to DHBC. Therefore, I

would hold courts are not barred from determining a claim based on the alleged

statement by Mr. Hix that Mr. Lippard is a liar.

Second, the majority argues that “you and other people like you are believing

him instead of Scripture” means that “we would need to inquire into . . . when to

22 LIPPARD V. HOLLEMAN

believe scripture, and how scripture determines whom to believe[,]” to determine the

truth or falsity of the claim that Mr. Lippard is a liar. However, courts would only

need to determine whether Mr. Lippard knowingly made factually untrue statements

with the intent to deceive or not, an inquiry which does not require interpreting or

weighing church doctrine. I would hold the second phrase does not sufficiently allege

a defamation claim against Mr. Lippard because it is a statement of opinion and not

fact and does not target Mr. Lippard, but other unnamed churchgoers. Assuming the

alleged statement is capable of verification and directed against Mr. Lippard, I would

hold considering the particular implied claim that Mr. Lippard is not following

scripture is barred by the ecclesiastical entanglement doctrine, as courts cannot

determine whether Mr. Lippard is contravening scripture without inquiring into

what scripture requires.

That this claim would be barred does not affect the alleged statement that Mr.

Lippard is a liar. In a footnote, the majority argues that “[w]e cannot separate the

23 December 2012 statement into two parts and must read it as a whole because it is

a complete sentence without a comma that would indicate a compound sentence of

thoughts.” Maj. Op. at 26 I would not hold the absence of a comma in a written

allegation of an oral statement is dispositive of its interpretation; rather, because

both conjuncts can stand alone as individual sentences, they are independent clauses

and each expresses a complete thought. But even taken as a whole, in the alleged

23 LIPPARD V. HOLLEMAN

statement Mr. Hix still accuses Mr. Lippard of being a liar, an allegation courts are

capable of determining the truth or falsity of which without weighing church doctrine.

Therefore, I would hold the ecclesiastical entanglement doctrine cannot bar Plaintiffs’

claim that Mr. Hix defamed Mr. Lippard by claiming he was a liar.

(2) 8 January 2013 Email by Mr. Hix to Mr. Brewer

Plaintiffs also allege defamation based on Mr. Hix’s statement in a subsequent

email to Mr. Brewer, a choir member, stating: “Note also that there are verifiable

facts and Biblical scriptures which [Plaintiffs] are openly denying and defying. Those

facts and scriptures still stand.” This statement, like the last by Mr. Hix, mixes

allegations that Plaintiffs are lying—“there are verifiable facts . . . which [Plaintiffs]

are openly denying . . .”—with allegations that Plaintiffs are contravening scriptural

requirements—“there are . . . Biblical scriptures which [Plaintiffs] are

openly . . . defying.” At deposition, Mr. Hix said “[t]he facts that the (sic) late and/or

not showing up for worship services when we’re paying her to be on the schedule”

were the “verifiable facts” to which he was referring. R756 Here, as in the previous

statement, I would hold that courts are not barred from considering a defamation

claim based on the allegation that Plaintiffs are “openly denying” “verifiable facts,”

or lying. I would hold that determining the truth or falsity of whether Plaintiffs were

“openly denying” the “verifiable fact” that Ms. Lippard was repeatedly late or not

24 LIPPARD V. HOLLEMAN

showing up for worship services would not require courts to interpret or weigh church

doctrine and courts are not barred from making that limited inquiry.

(3) 16 January 2013 Letter by Mr. Holleman to Mr. Brewer

Mr. Holleman sent a lengthy letter on 16 January 2013 to Mr. Brewer.

Plaintiffs argue, among others, five statements contained in the letter are

defamatory. Defendants contend courts are barred from considering each of these

statements based on the ecclesiastical entanglement doctrine. While I concur with

the majority that courts are barred from considering four of the statements because

they would require courts to interpret or weigh church doctrine, I disagree with the

majority’s holding that courts are barred from considering the following statement

written by Mr. Holleman: “No doubt there are more strategies against the church

leadership playing out tonight.” I would hold courts are not barred from considering

this claim because determining the truth or falsity of whether “there [were] more

strategies against the church leadership playing out” would not require the

interpretation or weighing of church doctrine. The letter stated in pertinent part:

[A]s far as I’m aware, every new conversation or controversy has been initiated by [the Plaintiffs], or by those who have been advocating for their position [as opposed to the church leadership]. You yourself have attempted to engage me in conversation at the church. . . . You have written this letter and had it delivered to me, Bryan Sherrill, and Bill Wooten. [Mr. Lippard] has confronted [Mr. Hix] multiple times, and this very day, I’ve met with Billy Lynch for breakfast, whom [Mr. Lippard] had confronted at Church with a copy of [Mr. Hix’s] directives to [Ms. Lippard]. I’ve learned that [Mr. Lippard] has e-mailed [Mr. Hix] requesting an explanation for why he and [Ms. Lippard] have not been returned to the solo rotation. And Bryan Sherrill indicates that [Mr.

25 LIPPARD V. HOLLEMAN

Lippard] called him today attempting to “catch” me in some mistake. These are just a few. No doubt there are more strategies against the church leadership playing out tonight. [R105]

In their brief, Plaintiffs argue this statement implies “nefarious motives ascribed to

Ms. Lippard by [Mr.] Holleman.” Pl. Br. at 48 The context of the statement makes

clear that “strategies” in this context means “a careful plan or method” and “a clever

stratagem,” here with a negative connotation. See Merriam-Webster’s Collegiate

Dictionary 1233 (11th Ed. 2003). Mr. Holleman is accusing Ms. Lippard of

coordinating the meetings and stirring dissension. The truth or falsity of the

statement that “there [were] more strategies against the church leadership playing

out [that ]night” could be determined by a court without inquiring into religious

doctrine or practice, such as by determining whether Ms. Lippard asked or instructed

others to communicate on her behalf or to actively oppose the action of the church

leadership. Therefore, I would hold the claim is not barred by the ecclesiastical

entanglement doctrine.

Although the majority concedes that this statement “does not directly [involve]

scripture” it nevertheless argues that “it does involve other ecclesiastical matters.”

However, the majority does not rely on the definition of “ecclesiastical matter”

adopted by our Supreme Court. It does not argue that this is a matter “which

concerns . . . the adoption and enforcement within a religious association of needful

laws and regulations for the government of membership[,]” nor that it concerns “the

26 LIPPARD V. HOLLEMAN

power of excluding from such associations those deemed unworthy of membership by

the legally constituted authorities of the church . . . .” Piner, 257 N.C. at 77, 147

S.E.2d at 583. The Plaintiffs’ claim that this statement is defamatory is neither.

Instead, the majority asserts that “[p]lainly, this controversy and ongoing

dispute with the Plaintiffs is a matter of DHBC’s internal membership, organization,

governance, discipline, and degree of control between members” and that “[w]e cannot

decide the rightness or wrongness of this statement by a pastor communicating with

his flock.” Maj. Op. at 32-33 “[B]ut,” contrary to the majority’s argument, “the courts

do have jurisdiction, as to civil, contract[,] and property rights which are involved in,

or arise from, a church controversy.” Creech, 256 N.C. at 140, 123 S.E.2d at 627

(emphasis added) (quoting Reid, 241 N.C. 201, 85 S.E.2d 114). An act that would

otherwise give rise to an actionable tort claim is not immunized merely because it

arose in the context of a communication between a pastor and a churchgoer where

neutral principles of law could be applied to resolve the claim. See Smith, 128 N.C.

App. at 495, 495 S.E.2d at 398 (concluding that a holding “that a religious body must

be held free from any responsibility for wholly predictable and foreseeable injurious

consequences of personnel decisions, although such decisions incorporate no

theological or dogmatic tenets—would go beyond First Amendment protection and

cloak such bodies with an exclusive immunity greater than that required for the

preservation of the principles constitutionally safeguarded.” (internal citation

27 LIPPARD V. HOLLEMAN

omitted)); accord Bigelow, 247 N.C. App. at 411, 786 S.E.2d at 366 (holding

“unsupported assertion” that First Amendment “immunizes, without exception, a

religious institution from liability arising out of a contract between the religious

institution and its ministerial employees . . . cannot be reconciled with Smith.”).

Contrary to the majority’s argument, resolving this claim does not require courts to

determine the “rightness or wrongness” of the pastor’s statement; resolving the claim

merely requires that courts determine the truth or falsity of it. That particular

question “does not directly [involve] scripture,” as the majority concedes, and would

not require courts to interpret or weigh church doctrine. Therefore, I would hold it

can be resolved by the application of neutral principles of law and is not barred by

the ecclesiastical entanglement doctrine.

(4) 6 April 2013 Email by Mr. Holleman to Mr. Brewer

Finally, the Plaintiffs also argue that the following statement in the 6 April

2013 email to Mr. Brewer was defamatory:

There were several there the Wednesday night that [Mr. Lippard], with [Ms. Lippard] behind him, blocked [Mr. Hix’s] exit from the music room and was aggressively going after [Mr. Hix], pointing his finger in [Mr. Hix’s] face, an action I recently learned was illegal and could have very well been reported as a crime. [R 115]

Determining the truth or falsity of this allegation of the commission of an allegedly

criminal act would not require courts to interpret or weigh church doctrine any more

than the same accusation from any other person based on any other crime would.

28 LIPPARD V. HOLLEMAN

The statement does not allege that Plaintiffs violated an ecclesiastical law, which

would require such interpretation or weighing of doctrine. Rather, determining the

truth or falsity of this statement merely requires courts to determine whether or not

Mr. Lippard in fact “blocked [Mr. Hix’s] exit from the music room and []aggressively

[went] after [Mr. Hix], pointing his finger in [Mr. Hix’s] face.” [R115] Therefore, I

would hold this claim could be resolved based on the application of neutral principles

of law and is not barred by the ecclesiastical entanglement doctrine.

The majority argues deciding this particular claim is indistinguishable from

Harris because “we would be forced to determine whether the statement at issue is

proper in light of DHBC’s doctrine and practice regarding membership and conduct.”

[Maj. at 42] This is a misreading of Harris. In Harris, the reason the court would

have had to inquire into whether expenditures made by the church leadership were

“proper” to resolve the claim was because the cause of action the plaintiffs alleged

was breach of fiduciary duty, and the only theory alleged by the plaintiffs for the

specific element of breach of fiduciary duty was that the defendants “improperly

us[ed] church funds, which constitutes conversion.” Harris, 361 N.C. at 273, 643

S.E.2d at 572. Therefore, determining whether the church leadership’s challenged

action was proper was an essential issue to the claim before the court. Here, in

contrast, the issue is whether Mr. Holleman’s statement about Plaintiffs was true or

false; the court need not determine whether this statement or Mr. Holleman’s actions

29 LIPPARD V. HOLLEMAN

were “proper” or consider “how [DHBC] should react to what it considers improper

conduct” to resolve the claim. [Maj. at 42, 43]

I would hold that Plaintiffs’ claims based on these statements are not barred

by the ecclesiastical entanglement doctrine because courts could evaluate the specific

elements of each of these claims, including the falsity of the alleged statement,

without interpreting or weighing church doctrine. Therefore, “the First Amendment

is not implicated and neutral principles of law are properly applied to adjudicate the

claim[s].” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398; see Harris, 361 N.C. at

273-74, 643 S.E.2d at 571 (holding claims barred by ecclesiastical entanglement

doctrine “[b]ecause no neutral principles of law exist to resolve plaintiffs’ claims.”).

D. Substantive Defamation Claims

Although I concur with the majority that the ecclesiastical entanglement

doctrine bars courts from analyzing most of Plaintiffs’ claims, and I dissent and would

hold that four claims are not barred, there remain other issues to resolve. In granting

summary judgment to Defendants, the trial court also held (1) “[a]s a matter of law,

none of the Defendants’ statements are defamatory per se” and (2) “Plaintiffs did not

provide any evidentiary forecast that they suffered special damages because of any of

Defendants’ allegedly defamatory per quod statements.” R919 On appeal, Plaintiffs

argue that they “have met all the elements of defamation cases [(sic)] whether per se,

or per quod.” I disagree, and I would hold that, for the claims that I believe are not

30 LIPPARD V. HOLLEMAN

barred by the ecclesiastical entanglement doctrine, Plaintiffs have failed to show the

claims constitute libel or slander per se or per quod.

“Three classes of libel are recognized under North Carolina law.” Renwick,

310 N.C. at 316, 312 S.E.2d at 408.

They are: (1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous, which are termed libels per quod.8

Id. at 316, 312 S.E.2d at 408 (quoting Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d

452, 455 (1979)).

Libel per se is a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.

Skinner v. Reynolds, 237 N.C. App. 150, 152, 764 S.E.2d 652, 655 (2014) (citations

omitted) (emphasis omitted).

Further: [] Defamatory words to be libelous per se must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned

8 In contrast, slander—an “oral defamatory utterance[]”—is only actionable per se or per quod, not as a publication susceptible of two interpretations. Penner v. Elliott, 225 N.C. 33, 34, 33 S.E.2d 124, 125 (1945).

31 LIPPARD V. HOLLEMAN

and avoided. Although someone cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim immunity from liability, a pure expression of opinion is protected because it fails to assert actual fact. This Court considers how the alleged defamatory publication would have been understood by an average reader. In addition, the alleged defamatory statements must be construed only in the context of the document in which they are contained, stripped of all insinuations, innuendo, colloquium and explanatory circumstances. The articles must be defamatory on its face within the four corners thereof.

Id. at 152-53, 764 S.E.2d at 655 (internal citations and quotations omitted) (emphasis

omitted).

In their brief, Plaintiffs do not identify which of the dozens of allegedly

defamatory statements they cite are defamatory per se. Upon my review of the record

and the briefs, the only statement not barred by the ecclesiastical entanglement

doctrine that Plaintiffs might colorably argue was libel per se was Mr. Holleman’s

description of Plaintiffs’ alleged behavior in the 6 April email to Mr. Brewer, which

Mr. Holleman characterized as “illegal” and “could very well have been reported as a

crime.”9 There is a question as to whether the behavior alleged—“block[ing] [Mr.

Hix’s] exit from the music room,” “aggressively going after [Mr. Hix],” and “pointing

his finger in [Mr. Hix’s] face”—constitutes an “infamous crime.”

9 Despite Plaintiffs’ repeated assertions, none of the statements alleged “tend[] to subject [Plaintiffs] to ridicule, contempt, or disgrace” as a matter of law. Skinner, 237 N.C. App. at 152, 764 S.E.2d at 655.

32 LIPPARD V. HOLLEMAN

“At common law, . . . an infamous crime is one whose commission brings

infamy upon a convicted person, rendering him unfit and incompetent to testify as a

witness, such crimes being treason, felony, and crimen falsi.” Aycock v. Padgett, 134

N.C. App. 164, 166, 516 S.E.2d 907, 909 (1999) (citations omitted). Under N.C. Gen.

Stat. § 14-39 (2017), the felony of kidnapping includes an “unlawful[] confine[ment],

restrain[t], or remov[al] from one place to another [of] any other person 16 years of

age or over without the consent of such person” for one of several enumerated

purposes. False imprisonment is a lesser included offense of kidnapping. State v.

Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 562 (1992). “The difference between

kidnapping and the lesser included offense of false imprisonment is the purpose of

the confinement, restraint, or removal of another person: the offense is kidnapping if

the purpose of the restraint was to accomplish one of the purposes enumerated in the

kidnapping statute.” Id. at 210, 415 S.E.2d at 562 (citation omitted). False

imprisonment was a misdemeanor at common law and, as it was not superseded by

N.C.G.S. § 14-39, remains so in North Carolina. See State v. Fulcher, 34 N.C. App.

233, 242, 237 S.E.2d 909, 915 (1977), affirmed by State v. Fulcher, 294 N.C. 503, 243

S.E.2d 338 (1978) (“The common-law crime of false imprisonment, a general

misdemeanor, has not been superseded by the new kidnapping statute because there

may be an unlawful restraint without the purposes specified in the statute.”).

33 LIPPARD V. HOLLEMAN

The conduct Mr. Holleman alleges occurred, being Mr. Holleman’s blocking of

Mr. Hix in the music room with his body, does not rise to the level of kidnapping or

false imprisonment, as there is nothing in the statement to indicate Mr. Hix was truly

confined or restrained. Even assuming, arguendo, that Mr. Hix was confined against

his will, there is no evidence in the statement by Mr. Holleman that he claimed

Plaintiffs acted with one of the specific purposes enumerated in the kidnapping

statute. See N.C.G.S. § 14-39. Therefore, at most, the conduct Mr. Holleman

describes would be false imprisonment. As it is only a misdemeanor, not a felony,

and not treason or a crimen falsi, false imprisonment is not an “infamous crime.”

Therefore, the allegedly defamatory statement in the 6 April email, like the rest of

the statements Plaintiffs allege were defamatory, is not libel per se.

Plaintiffs further contend the trial court erred in granting Defendants’ motion

for summary judgment on the basis that Plaintiffs failed to “provide any evidentiary

forecast that they suffered special damages because of any of Defendants’ allegedly

defamatory per quod statements.” I disagree.

Libel per quod may be asserted when a publication is not obviously defamatory, but when considered in conjunction with innuendo, colloquium, and explanatory circumstances it becomes libelous. To state a claim for libel per quod, a party must specifically allege and prove special damages as to each plaintiff.

34 LIPPARD V. HOLLEMAN

Skinner, 237 N.C. App. at 157, 764 S.E.2d at 657-58 (internal quotations and citations

omitted). This Court has distinguished special damages from general damages as

follows:

General damages are the natural and necessary result of the wrong, are implied by law, and may be recovered under a general allegation of damages. But special damages, those which do not necessarily result from the wrong, must be pleaded, and the facts giving rise to the special damages must be alleged so as to fairly inform the defendant of the scope of plaintiff’s demand.

Griffin v. Holden, 180 N.C. App. 129, 138, 636 S.E.2d 298, 305 (2006) (citing Rodd v.

W.H. King Drug Co., 30 N.C. App. 564, 568, 228 S.E.2d 35, 38 (1976)). “Special

damage, as that term is used in the law of defamation means pecuniary loss, as

distinguished from humiliation.” Williams v. Rutherford Freight Lines, Inc., 10 N.C.

App. 384, 387, 179 S.E.2d 319, 322 (1971) (citing Penner v. Elliott, 225 N.C. 33, 33

S.E.2d 125 (1945)) (additional citations omitted). Indeed, “emotional distress and

mental suffering are not alone sufficient to establish a basis for relief in cases which

are actionable only per quod.” Id. at 390, 179 S.E.2d at 324 (citations omitted). Of

course, some pecuniary damages may stem from mental anguish and humiliation,

such as the cost of psychological treatment attributable to the defamatory statement.

See, e.g., Tallent v Blake, 57 N.C. App. 249, 255, 291 S.E.2d 336, 340-41 (1982)

(“Special damages include illness sufficient to require medical care and expense.”);

Araya v. Deep Dive Media, LLC, 966 F. Supp. 2d 582, 599-600 (W.D.N.C. 2013)

35 LIPPARD V. HOLLEMAN

(holding that cost of treatment and psychological counseling for emotional distress

satisfied requirement for special damages in libel per quod claim).

Furthermore, at summary judgment, a plaintiff must “produce an evidentiary

forecast to support a prima facie showing of special damages to survive defendant’s

motion for summary judgment on [a] claim of libel per quod.” Griffin, 180 N.C. App.

at 138, 636 S.E.2d at 305 (citing Renwick, 310 N.C. at 312, 312 S.E.2d at 408 ). Mere

allegations and “pure speculation” are insufficient at this stage. Id. at 138-39, 636

S.E.2d at 305. In the present case, Plaintiffs claim they have suffered “damages for

injury to their reputation and mental anguish and humiliation,” in addition to

seeking punitive damages and “full reimbursement of their attorney’s fees.” R159,

181 Mr. Lippard also claims that “his reputation as a builder home inspector and

real estate agent has been tarnished as a result of the publication of [the 28 November

sermon] and the other defamatory remarks attributed to [Defendants] against [Mr.

Lippard].” Pl. Br. at 42

Plaintiffs fail to meet their burden of producing a forecast of evidence sufficient

to make a prima facie showing of special damages. Mental anguish and humiliation

are not sufficient to satisfy the requirement for special damages. See Williams, 10

N.C. App. at 387, 179 S.E.2d at 322. Rather, to survive a motion for summary

judgment, Plaintiffs must show “pecuniary loss, as distinguished from humiliation.”

Williams, 10 N.C. App at 387, 179 S.E.2d at 322. However, despite their general

36 LIPPARD V. HOLLEMAN

allegation, Plaintiffs have failed to show any particular pecuniary damages arising

from the mental anguish, emotional harm, and humiliation they claim to have

suffered, such as costs for therapy or mental health care.

Mr. Lippard additionally claims that Defendants’ alleged statements have

“tarnished” “his reputation as a builder, home inspector[,] and real estate agent,” and

that his “yearly income from 2010 through 2016” is “proof of pecuniary injury as a

result of the defamation of [Defendants].” Pl. Br. at 42 Mr. Lippard’s reported

income shows $13,804.00 for 2010, $31,169 for 2011, $9,824.00 for 2012, and $18,008

for 2013, the year following the publication of the majority of the allegedly defamatory

statements at issue. R159 Mr. Lippard has failed to show how the allegedly

defamatory statements resulted in pecuniary harm. Without more, any connection

between Plaintiffs’ income and Defendants’ statements, particularly those allegedly

defamatory statements which courts are not barred from considering by the First

Amendment, is “pure speculation.” Griffin, 180 N.C. App. at 138-39, 636 S.E.2d at

305. Plaintiffs have failed to show special damages so as to warrant denial of

Defendant’s motion for summary judgment on the libel and slander per quod claims.

III. Conclusion

In the case of defamation claims, I would hold that courts must evaluate the

specific elements of the claim, including the falsity of the alleged statement, and

determine whether “resolution of [the truth or falsity of the alleged statement]

37 LIPPARD V. HOLLEMAN

requires the court to interpret or weigh church doctrine. If not, the First Amendment

is not implicated and neutral principles of law are properly applied to adjudicate the

claim.” Smith, 128 N.C. App. at 494, 495 S.E.2d at 398. Based on this analysis, I

concur with the majority’s holding for some of Plaintiffs’ claims that they are barred

because resolving the claims requires courts to interpret or weigh church doctrine.

For the four allegedly defamatory statements discussed above—Mr. Hix’s oral

allegation that Mr. Lippard is a liar and written allegation that Plaintiffs denied

“verifiable facts,” along with Mr. Holleman’s statements that “strategies” were

playing out against church leadership and that Mr. Lippard allegedly committed a

crime—I disagree and would hold that there is no need for the court to interpret or

weigh church doctrine in its adjudication of the truth or falsity of these claims.

[The majority’s] contrary holding—that a religious body must be held free from any responsibility for [allegedly defamatory statements,] although such [statements] incorporate no theological or dogmatic tenets—[]go[es] beyond First Amendment protection and cloak[s] such bodies with an exclusive immunity greater than that required for the preservation of the principles constitutionally safeguarded.

Smith, 128 N.C. App. at 495, 495 S.E.2d at 398 (citation omitted). Therefore, I dissent

in part. For these claims that I would hold are not barred by the ecclesiastical

entanglement doctrine, I would nevertheless hold that Plaintiffs have not shown

sufficient evidence for libel per se or special damages as required for libel or slander

per quod. Therefore, I concur in the majority’s judgment affirming the trial court’s