Williams Overman Pierce, LLP. v. Duncan, 032911 NCSUP, 10 CVS 8100

Docket Nº:10 CVS 8100
Opinion Judge:GALE, JUDGE
Party Name:WILLIAMS OVERMAN PIERCE, LLP, WOP RALEIGH HOLDINGS, LLC AND WOP GREENSBORO HOLDINGS, LLC, Plaintiffs, v. DANIEL PATRICK DUNCAN AND DUNCAN ASHE, PA, Defendants.
Attorney:Howard, Stallings, From & Hutson, P.A. by John N. Hutson, Jr. and Philip W. Payne for Plaintiffs. Carruthers & Roth, P.A. by Jack B. Bayliss, Jr. and Michal E. Yarborough for Defendants.
Case Date:March 29, 2011
Court:Superior Courts of Law and Equity of North Carolina
 
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2011 NCBC 10

WILLIAMS OVERMAN PIERCE, LLP, WOP RALEIGH HOLDINGS, LLC AND WOP GREENSBORO HOLDINGS, LLC, Plaintiffs,

v.

DANIEL PATRICK DUNCAN AND DUNCAN ASHE, PA, Defendants.

No. 10 CVS 8100

Superior Court of North Carolina, Wake

March 29, 2011

Howard, Stallings, From & Hutson, P.A. by John N. Hutson, Jr. and Philip W. Payne for Plaintiffs.

Carruthers & Roth, P.A. by Jack B. Bayliss, Jr. and Michal E. Yarborough for Defendants.

ORDER

GALE, JUDGE

{1} THIS MATTER is before the Court on Defendants' Verified Motion for Enforcement and Interpretation of Settlement Agreement and Plaintiff's Motion to Dismiss Defendants' Verified Motion for Enforcement and Interpretation of Settlement Agreement for Lack of Subject Matter Jurisdiction. The parties entered two agreements that include the term "Client Limitation Period, " which "shall mean the three (3) year period beginning after the partner's involuntary retirement but such period shall not extend to work for more than two (2) full accounting periods ending after the date of involuntary retirement." The term was first stated in the William Overman Pierce, LLP ("WOP") Partnership Agreement ("Partnership Agreement"). It was later incorporated into the parties' Settlement Agreement and Mutual Release of All Claims ("Settlement Agreement"). The parties disagree as to how the term is to be applied to WOP clients that may wish to have their accounting work performed by Defendants after Daniel Patrick Duncan ("Duncan") was involuntarily terminated as a WOP partner. The Court finds that it has jurisdiction to declare the rights between the parties, DENIES Plaintiffs' motion to dismiss, and declares the meaning of the term "Client Limitation Period" that shall be used in interpreting and enforcing the Settlement Agreement.

Procedural History

{2} Plaintiffs initiated the action on May 12, 2010, following WOP's involuntary termination of Duncan as a partner, effective as of September 30, 2009. The matter was designated a Complex Business Case on June 22, 2010, assigned to Judge Ben F. Tennille on June 23, 2010, and reassigned to the undersigned following Judge Tennille's retirement.

{3} The parties entered the Settlement Agreement prior to Defendants' responsive pleading. As required by the Settlement Agreement, Plaintiffs filed a Voluntary Dismissal with Prejudice on December 3, 2010. The Settlement Agreement includes a provision retaining this Court's jurisdiction for limited purposes. Defendants filed their motion to interpret and enforce the Settlement Agreement on December 17, 2010. Plaintiffs challenged the Court's jurisdiction by their motion on January 2, 2011. Plaintiffs also responded to the Defendants' motion on its merits. The motions were fully briefed. The Court heard oral argument by telephone conference on March 18, 2011.

{4} Although Plaintiffs contend that the Court does not have jurisdiction to determine Defendants' motion, Plaintiffs agree that if there is jurisdiction, the material facts upon which Defendants' motion should be resolved are uncontested, and the term "Client Limitation Period" can be interpreted as a matter of law without the need to hear evidence on any contested fact.

Use of the Term "Client Limitation Period"

{5} The Partnership Agreement has a non-compete provision, restricting competition for a three year period. Duncan was involuntarily terminated without cause. Section 25.05 of the Partnership Agreement provides a partner who is terminated involuntarily an election to nullify the non-compete provisions in exchange for that partner's agreement to pay WOP certain sums...

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