Isbey v. Cooper Companies, Inc.

• Decision Date: 20 August 1991
• Docket Number: No. 9028SC1152,9028SC1152
• Parties: Edward K. ISBEY, Jr., Plaintiff, v. COOPER COMPANIES, INC., formerly CooperVision, Inc., Defendant.
• Court: North Carolina Court of Appeals

Page 254

407 S.E.2d 254

103 N.C.App. 774

Edward K. ISBEY, Jr., Plaintiff, v. COOPER COMPANIES, INC., formerly CooperVision, Inc., Defendant.

No. 9028SC1152.

Court of Appeals of North Carolina.

Aug. 20, 1991.

Morris, Bell & Morris by William C. Morris, Jr., Asheville, for plaintiff-appellant.

Roberts Stevens and Cogburn, P.A. by Isaac N. Northup, Jr., Asheville, for defendant-appellee.

WELLS, Judge.

Plaintiff assigns error to the trial court's granting defendant's motion for summary judgment on plaintiff's common law fraud cause of action. Plaintiff contends that defendant falsely represented to plaintiff that defendant was interested in marketing plaintiff's design for an improved custom surgical kit. Plaintiff further contends that he reasonably relied on defendant's misrepresentations and delayed marketing his design with other marketing companies to his detriment. During this delay, other companies marketed similar designs thus diminishing plaintiff's potential share of the market.

It is well stated that summary judgment is properly granted "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 judgment as a matter of law." N.C.Gen.Stat. § 1A-1, Rule 56(c). A movant may show that he is entitled to summary judgment as a matter of law by presenting a forecast of evidence that shows an essential element of the opposing party's claim is nonexistent or that the opposing party cannot produce evidence to support an essential element of his or her claim. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). If the moving party has met this initial burden, the nonmoving party may overcome this burden by a forecast of evidence demonstrating that he or she will be able to make out a prima facie case at trial. See Johnson v. Beverly Hanks & Assoc., 328 N.C. 202, 400 S.E.2d 38 (1991).

In ruling on a motion for summary judgment, the court must consider the evidence in the light most favorable to the non-movant, Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986), and give the non-movant all favorable inferences which may reasonably be drawn from the evidence. Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974). The moving party's "papers are carefully scrutinized and all inferences are resolved against him." Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

In discussing the elements constituting common law fraud our Supreme Court has stated:

While fraud has no all embracing definition and is better left undefined lest crafty men find a way of committing fraud which avoids the definition, the following essential elements of actionable fraud are well established: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.

Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974); Johnson, supra. Although summary judgment may be proper when absence of genuine issue is clearly established, summary judgment is generally improper in an action for fraud. Girard Trust Bank v. Belk, 41 N.C.App. 328, 255 S.E.2d 430, cert. denied, 298 N.C. 293, 259 S.E.2d 299 (1979).

The forecast of evidence before the trial court tends to show the following facts and circumstances. In the late 1970's many companies had developed and marketed custom surgical packs which included surgical and post-operative items relevant and necessary to a particular patient's surgical needs. These custom surgical packs oftentimes included sterilized equipment needed by surgeons for various types of surgery as well as other post-operative supplies for both the surgeon and patient. By 1982, ten major companies were manufacturing and marketing custom packs for eye surgery. In 1981, Cooper had begun development of a custom pack for eye surgery known as "SuperPak," which combined Cooper's own previously available and successful standardized equipment pack, "Unipak," in the same package with other disposable surgical products. Following an unsuccessful marketing attempt, Cooper discontinued its customized "SuperPak" by late 1983. Although marketing its customized surgical pack was unsuccessful, Cooper continued to market its standardized surgical packs with success.

On 25 October 1983, plaintiff, a practicing opthalmologist, filed a patent application with the United States Patent and Trademark Office for an improved custom surgical kit containing disposable surgical trays which house various surgical and post-operative supplies. During the fall of 1983, Dr. Isbey met with Mike Shell, a Cooper sales representative, regarding matters related to Dr. Isbey's patent application. Mike Shell arranged for Dr. Isbey to meet with Robert Morris, Cooper's marketing manager.

On 31 October 1983 plaintiff met Morris at an American Academy of Ophthalmology Convention to discuss marketing plaintiff's custom surgical kit. During this meeting, the two signed a ...