Gunn v. Simpson, Schulman & Beard, LLC
| Decision Date | 23 September 2011 |
| Docket Number | 11 CVS 906 |
| Citation | 2011 NCBC 35 |
| Court | Superior Court of North Carolina |
| Parties | RICHARD W. GUNN, JR. and GUNN & ASSOCIATES, LLC, Plaintiffs, v. SIMPSON, SCHULMAN & BEARD, LLC; BRET SCHULMAN; RICHARD BEARD; LABORATORY CORPORATION OF AMERICA; SN COMMERCIAL, LLC; SECURITY NATIONAL MASTER MANAGER, LLC; SECURITY NATIONAL PROPERTIES HOLDING COMPANY, LLC and SEQUOIA INVESTMENTS XIV, LLC, JOINTLY AND SEVERALLY, Defendants. |
Vernon, Vernon, Wooten, Brown, Andrews & Garre by E. Lawson Brown, Jr. and Benjamin D. Overby for Plaintiffs Richard W. Gunn, Jr. and Gunn & Associates, LLC.
Womble, Carlyle, Sandridge & Rice, PLLC by Michael Montecalvo and Brent F. Powell for Defendant SN Commercial.
Parker, Poe, Adams & Bernstein, LLP by William L. Rickard, Jr. and Matthew Hilton Ma l for Defendant Laboratory Corporation of America.
{1} THIS MATTER is before the Court on Defendant SN Commercial, LLC's Motion to Dismiss for Failure to State a Claim pursuant to North Carolina Rules of Civil Procedure 12(b)(6) ("Motion"). For the reasons stated below, the Motion is GRANTED.
{2} This case arises out of a commercial lease of real property owned and managed by Defendant SN Commercial, LLC ("SNC") and leased by Defendant Laboratory Corporation of America ("LabCorp"). Plaintiffs Richard W. Gunn and Gunn & Associates, LLC (collectively, "Gunn"), a broker and his associated brokerage firm, are not parties to the lease agreement between LabCorp and SNC but contend they were unfairly deprived of a commission by LabCorp, SNC, and Simpson, Schulman, & Beard ("SSB")- a competing broker.1[] Gunn asserts claims against LabCorp for breach of contract, procuring cause, quantum meruit, breach of the implied duty of good faith and fair dealing, and violation of the North Carolina Unfair and Deceptive Trade Practices Act ("NCUDTPA"); and claims against SNC for breach of contract, procuring cause, wrongful interference with a contract, quantum meruit, and violation of the NCUDTPA. SNC's Motion seeks dismissal of Gunn's claims.
{3} Gunn's Complaint omits key assertions necessary to state actionable claims, and inferences necessary to provide those elements are inconsistent with the facts alleged. In particular, the Complaint does not allege or support an inference: (1) that a valid contract ever existed between Gunn and SNC; (2) that Gunn ever provided brokerage services at the request of SNC; (3) that SNC induced LabCorp to breach its purported brokerage agreement with Gunn; (4) or that SNC committed acts intended to deceive Gunn. Accordingly, all claims in the Complaint against SNC should be dismissed. Gunn's recovery, if any, should be against LabCorp, the party with whom it allegedly maintained an agency relationship.
{4} Gunn filed its Complaint in Alamance County Superior Court on April 4, 2011. The matter was designated as a Complex Business Case by Chief Justice Sarah Parker by order dated May 11, 2011 and subsequently assigned to this Court by order dated May 27, 2011. On June 10, 2011, LabCorp filed its Answer and SNC filed its Motion. The Motion has been fully briefed, the Court heard oral arguments on September 7, 2011, the Parties have filed post-hearing briefs, and the matter is ripe for disposition.
{5} The following facts are taken from the pleadings and construed favorably to the Plaintiffs allowing permissible inferences not inconsistent with the alleged facts.
{6} Richard W. Gunn, Jr. is a citizen and resident of Burlington, Alamance County, North Carolina. Gunn & Associates, LLC is a limited liability company organized under the laws of the State of North Carolina with its principle place of business in Burlington, Alamance County, North Carolina. Richard W. Gunn, Jr. is a real estate broker, licensed in the State of North Carolina and is the broker in charge of Gunn & Associates, LLC. LabCorp is a corporation existing under the laws of the State of Delaware and authorized to transact business in the State of North Carolina, with its principle place of business in Burlington, Alamance County, North Carolina. SNC is a limited liability company that transacts business in the State of North Carolina with its principle place of business in Eureka, California. Plaintiffs and SNC agree that SNC is the appropriate party to the suit and Plaintiffs need not separately include other SNC affiliate companies.
{7} For more than twenty-five (25) years, Gunn has provided real estate brokerage services to LabCorp with respect to the negotiation and execution of lease and purchase agreements, market research and analysis, and opinions of value. Br. to Def. SNC Commercial LLC's Mot. to Dismiss ( ) 2.) Over the course of their relationship, LabCorp regularly contacted Gunn when it had commercial real estate needs and Gunn regularly provided preliminary services to LabCorp at no cost in recognition of their long-standing relationship and under the assumption that if a purchase or lease agreement was ultimately executed, Gunn would be paid a commission. On numerous occasions, Gunn's efforts resulted in the execution of a purchase or lease agreement, and Gunn was in fact paid a commission. (Compl. ¶ 18.)
{8} On August 29, 2008, Gunn was contacted by LabCorp agent Gary Aherron ("Aherron") for the purpose of preparing a market search for 30, 000 square feet of office space to house a call center. (Compl. ¶ 19-25.) The market search was focused on commercial properties with the following characteristics: (1) 675 workstations in an open area; (2) 18-20 offices; (3) 1 to 2 conference rooms; (4) a training room; (5) restrooms; and (6) motor vehicle parking. (Compl. ¶ 21.) In response, Gunn prepared and submitted a tour book to LabCorp on September 9, 2008, entitled "Potential Call Center Locations" ("Tour Book"), in which Gunn identified seventeen (17) properties meeting LabCorp's specifications. (Compl. ¶ 25-26.) On or about September 10, 2008, Gunn and Aherron met at LabCorp's offices in Burlington, North Carolina to discuss the Tour Book and narrow the search to a list of properties that Aherron and other LabCorp agents would tour. (Compl. ¶ 27.) Thereafter, Gunn communicated regularly with Michele Hunter, LabCorp's Administrative Assistant in the Facilities Planning Department, to coordinate LabCorp's visits to a number of properties including the Salem Building. (Compl. ¶ 28-29.)
{9} On November 14, 2008, Gunn showed multiple properties to LabCorp including properties located in Mebane, North Carolina and the Salem Building in Greensboro, North Carolina. (Compl. ¶ 28-31.) Gunn arranged for round-trip van transportation to the properties, scheduled meetings with landlords' agents, and scheduled a lunch with representatives from the Greensboro Economic Alliance, all at no cost to LabCorp in anticipation that LabCorp would sign a lease at one of the properties shown, and arrange for a commission to be paid to Gunn. (Compl. ¶ 30-33.)
{10} LabCorp continued to encourage Gunn to act as its agent by setting up additional site visits and on November 24, 2008, Aherron and other LabCorp personnel traveled by van to Charlotte, North Carolina to view alternative locations for its call center and meet with the Charlotte Economic Alliance. (Compl. ¶ 41.) On November 25, 2008, Aherron and Gunn traveled to Danville, Virginia to visit other potential call center locations and meet with the Danville Economic Development Alliance. (Resp. Br. 4.)
{11} On December 2, 2008, LabCorp, through Aherron, requested that Gunn obtain a lease proposal for four (4) facilities, including the Salem Building owned by SNC. (Compl. ¶ 42.) On December 10, 2008, Gunn submitted a Request for Proposal of Lease to SNC at the direction of LabCorp, which was mailed to John Kirby at SNC's headquarters in Eureka, California. (Compl. ¶ 44.) On December 11, 2008, Kirby, as agent for SNC, submitted a lease proposal to Gunn indicating that SNC was "interested in pursuing a lease arrangement with [LabCorp] for the Salem Building in Greensboro, NC." (Compl. Ex. B at 1.) The proposal submitted by SNC to Gunn referenced Gunn as the exclusive representative for LabCorp by stating:
Gunn and Associates is the exclusive representative for the Tenant [LabCorp] and will be compensated with a commission fee equal to Four Percent (4%) of the overall firm term Gross Rent. Tenant will not be responsible for the payment of any commissions. The commission must be payable 50% upon lease execution and 50% upon tenant occupancy of the premises.
(Compl. ¶ 47; Compl. Ex. B at 6.) The SNC proposal also contained the following disclosure language:
This letter is not contractually binding on the parties and is only an expression of the basic terms and conditions to be incorporated in a formal written lease. This letter does not obligate either party to negotiate in good faith or to proceed with the completion of a lease. The parties shall not be contractually bound unless and until a formal lease is executed by the parties, which must be in the form and content satisfactory to each party and its counsel in their sole discretion. Neither party may rely on this letter as creating any legal obligation of any kind. Owner's Manager, Securities National Properties, represents Landlord/Owner in this transaction, but has no power to obligate or bind the Landlord. Unless otherwise notified, the values represented in this proposal expire 01/19/2009.
(Compl. Ex. B at 6.) The SNC proposal did not specify a lease term or commencement date, but provided for four (4) potential lease options with variable pricing. (Compl. Ex. B.)
{12} On December 18, 2008, Aherron requested that Gunn prepare a Comparative Lease Analysis ("CLA") of the lease proposals Gunn had solicited for LabCorp. (Compl. ¶ 48.) On January 5, 2009 Gunn submitted the CLA to LabCorp. (Compl. ¶ 49.) After...
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