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Court filing: Frivolous lawsuit hurt candidate’s chances

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KENLY — A former mayoral candidate says a now-dismissed defamation lawsuit Kenly’s police chief and one of its officers filed against him was an attempt to sabotage his campaign, and he wants them to pay his legal bills.

Terry Ray Baker filed a motion for sanctions and attorneys’ fees against Josh Gibson, Rayne Biggs and their attorney Leslie Jones of Garner on Jan. 8 in Johnston County District Court. The motion claims the trio filed a frivolous claim, violated pretrial publicity rules, delayed the discovery process and then dropped the suit without notice after Baker lost the election.

Baker’s lawyer, Smithfield attorney Walter A. Schmidlin, is seeking an order “taxing against the Plaintiff, or Plaintiff’s attorneys, or both, Defendant’s reasonable attorney’s fees and costs incurred as a result” of the lawsuit.

Baker “suffered immeasurable harm as a result of the actions of Plaintiff(s) and Plaintiffs’ attorney” in the weeks before and after the Nov. 7 election, the motion claims.

Gibson and Biggs sued Baker on Sept. 25, claiming he libeled and defamed them in a campaign news release posted to the “Terry Baker for Kenly Mayor” Facebook page. They accused Baker of implicating them in an extramarital affair.

“I am pro law enforcement and support honest, law abiding officers, not ones that lie to the North Carolina State Bureau Of Investigations (sic) and to the Johnston County District Attorney’s Office,” Baker wrote in the Facebook posting as quoted in the civil complaint. “I also do not support officers lieing (sic) to town officials as well as married police supervisors having sexual relationships with police subordinates.”

In their civil complaint, Gibson and Biggs alleged that statement “directly claims” that Gibson made false statements to the SBI and district attorney and “directly suggests that Plaintiffs have engaged in a sexual relationship, since Plaintiff Gibson is Plaintiff Biggs’ supervisor and Plaintiff Biggs is the only female officer in the Kenly Police Department.”

Baker’s attorney filed an answer and motion to dismiss the suit on Oct. 3, listing seven affirmative defenses including that the statements Baker made in the news release “do not, on their face, identify in any fashion, the plaintiffs or any particular person.”

In the motion to dismiss, Schmidlin asserted a First Amendment defense, writing that Baker’s statements in the news release “were opinions proffered by the Defendant and not stated as fact or as a recitation of any events that might have actually occurred.”

Constitutional law provides greater protection to statements of opinion that cannot be proven true or false than to claims of fact. In the 1974 defamation case Gertz v. Robert Welch, Inc., U.S. Supreme Court Justice Lewis Franklin Powell Jr. wrote for the 5-4 majority that “under the First Amendment, there is no such thing as a false idea.”

The lawsuit and response were pending on Election Day. Bonnie Hartley Williamson won the mayor’s race with 143 votes Wade Troutman Jr. received 100 votes, and Baker received 18 votes.

Through their attorney, Gibson and Biggs voluntarily dismissed their suit against Baker on Nov. 22. The complaint was dismissed without prejudice, meaning another suit could be filed on the same claims.

In the motion for sanctions and attorney fees, Baker alleges three violations of Rule 11 of the North Carolina Rules of Civil Procedure, including “filing a complaint that was not well-grounded in fact” and “was not the subject of reasonable inquiry.”

The motion cites coverage in the Kenly News on Oct. 3 and Oct. 8 and claims “Plaintiffs and Plaintiffs’ attorney made statements in an attempt to improperly influence the tribunal,” an alleged violation of pretrial publicity rules. The Oct. 8 Kenly News story was cited in an Oct. 13 editorial published in The Wilson Times.

Baker’s attorney alleges that Gibson, Biggs and Jones “failed or refused to adequately respond to discovery requests in advance of the election” and dismissed the complaint “just 15 days following the election, without engaging in meaningful discovery.”

“Plaintiffs failed to notify opposing counsel of the taking of dismissal,” the motion states, “causing Terry Baker to incur further unnecessary costs and expenses.”

An email seeking comment from Jones, who represents Gibson and Biggs, was not returned in time for this story.

Baker’s motion is still pending in Johnston County District Court.

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