Lockett v. Sister–2–sister Solutions Inc.
| Decision Date | 04 January 2011 |
| Docket Number | No. COA09–1387.,COA09–1387. |
| Citation | 704 S.E.2d 299 |
| Parties | Jerrian O. LOCKETT, Plaintiff,v.SISTER–2–SISTER SOLUTIONS, INC. and Rosa S. Lockett (aka Rosa Sutton), Defendants. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by plaintiff from orders entered 6 November 2008 by Judge Howard Manning and 13 November 2008, 16 March 2009, and 20 April 2009 by Judge Allen Baddour in Chatham County Superior Court. Heard in the Court of Appeals 25 March 2010.
Lewis Phillips Hinkle, PLLC, by Brian C. Johnston, and Elliot I. Brady, Chapel Hill, for plaintiff-appellant.
Wilson & Reives, PLLC, by Antwoine L. Edwards, Sanford, for defendants-appellees.
Jerrian O. Lockett (“plaintiff”) appeals the trial court's 6 November 2008 order, which granted summary judgment in favor of defendant Rosa S. Lockett (“Lockett”) as to his breach of contract claim; 13 November 2008 order, which granted summary judgment in favor of Lockett as to the claim pursuant to the North Carolina Wage and Hour Act; 16 March 2009 orders, which directed verdict in favor of defendant Sister–2–Sister Solutions, Inc. (“Sister–2–Sister”), dismissed plaintiff's breach of contract claim, and awarded attorneys' fees to plaintiff; and 20 April 2009 order, which denied plaintiff's motion to amend judgment. For the reasons stated herein, we affirm in part, reverse in part, and remand in part.
Plaintiff and Lockett were husband and wife when this action commenced. Lockett and her sister formed Sister–2–Sister in 2000 or 2001, and Lockett directed the day-to-day business of Sister–2–Sister throughout its lifetime. Lockett's sister left Sister–2–Sister in 2002 or 2003. Plaintiff had been employed by Sister–2–Sister at various times prior to the summer of 2006.
During the summer of 2006, plaintiff and Lockett negotiated the terms of an employment contract (“the contract”) so that plaintiff would return to North Carolina from his job in Texas. The contract provided, in part, that it could be terminated only for cause: “[Plaintiff] will not be dismissed from Sister 2 Sister One Transportation unless contract has been broken, or not [ful]filling his duty as indicated above.” Plaintiff alleges that on or about 31 July 2007, Sister–2–Sister terminated plaintiff's employment and that, at that point, plaintiff had not been paid for work he had performed during July 2007.
On 11 January 2008, plaintiff filed his complaint against Sister–2–Sister and Lockett (“defendants”), alleging breach of contract and violation of the North Carolina Wage and Hour Act (“Wage and Hour Act”). As part of his complaint, plaintiff alleged that Sister–2–Sister “has no independent identity apart from ... Lockett,” and the trial court, therefore, should “pierce the corporate veil and treat [Sister–2–Sister] as the alter ego of ... Lockett.”
On or about 17 October 2008, defendants moved for partial summary judgment as to plaintiff's breach of contract claim. At the 30 October 2008 hearing on the motion, plaintiff attempted to introduce deposition testimony from Lockett, but the trial court would not receive it. On 6 November 2008, the trial court granted the motion as to Lockett and denied it as to Sister–2–Sister, concluding, inter alia, that plaintiff and Sister–2–Sister “entered into an enforceable contract for employment on or about August 9, 2006[,] which contract provided that plaintiff could only be terminated for cause.” Lockett then moved for summary judgment as to plaintiff's claim based upon the Wage and Hour Act, and on 13 November 2008, the trial court granted her motion and dismissed her from the action.
At the close of plaintiff's evidence during the 26 February 2009 trial, Sister–2–Sister moved for a directed verdict. On 16 March 2009, the trial court entered a directed verdict in favor of Sister–2–Sister and dismissed plaintiff's breach of contract claim, concluding, inter alia,
Pursuant to the holding of the Court of Appeals in Freeman v. Hardee's Food Systems, Inc., 3 N.C.App. 435, 165 S.E.2d 39 (1969), among other cases, the August 10, 2006 employment contract executed by plaintiff and [Sister–2–Sister] is not an enforceable employment contract, and plaintiff's employment with [Sister–2–Sister] was terminable at the will of either party.
On the same date, the trial court entered judgment in favor of plaintiff as to his claim pursuant to the Wage and Hour Act. The trial court awarded plaintiff $840.00 for unpaid wages, $840.00 for liquidated damages, $7,500.00 for reasonable attorneys' fees, and $344.00 for costs for filing and service fees. On 26 March 2009, plaintiff moved for amendment of judgment, which was denied on 20 April 2009. Plaintiff now appeals the trial court's 6 November 2008, 13 November 2008, 16 March 2009, and 20 April 2009 orders.
Plaintiff first argues that the trial court erred by granting summary judgment in favor of Lockett as to the breach of contract claim, because there exists a genuine issue of material fact as to her individual liability for breach of contract. We disagree.
We review a trial court's grant of summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)).
“Summary judgment is appropriate when ‘there is no genuine issue as to any material fact’ and ‘any party is entitled to a judgment as a matter of law.’ ” Id. (quoting N.C. Gen.Stat. § 1A–1, Rule 56(c) (2005)). We previously have explained,
“The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.
....
Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.”
Wilkins v. Safran, 185 N.C.App. 668, 672, 649 S.E.2d 658, 661 (2007) (quoting
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C.App. 208, 212, 580 S.E.2d 732, 735 (2003), aff'd, 358 N.C. 131, 591 S.E.2d 521 (2004) (per curiam)).
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
N.C. Gen.Stat. § 1A–1, Rule 56(e) (2007) (emphasis added).
Here, defendants filed portions of plaintiff's deposition, an affidavit from the chairman of the Board of Directors for Sister–2–Sister, Sister–2–Sister's bylaws, and a memorandum of law in support of their motion for partial summary judgment. However, no evidence from plaintiff in opposition to the motion appears in the record. During the hearing on the motion, the trial court asked plaintiff's counsel, “What about the argument ... that defendant makes that [Lockett] should not be a party to this case?” Plaintiff's counsel responded,
Well, Your Honor, I—I think that question—if you—if you look at our complaint here, paragraphs 4, 5, 6, and 7, I have alleged that the [trial] [c]ourt should pierce the corporate veil and hold defendant Rosa Lockett individually liable for the acts of the corporation. And certainly I think that the inquiry as to whether or not the [trial] [c]ourt should pierce the corporate veil is a fact question. And there is—there is absolutely material facts in question on whether or not it's appropriate to pierce the corporate veil here. And I haven't seen any case law in defendant's brief to the contrary that—that there is no basis to—to pierce the corporate veil in this case. So I—I think, Your Honor, that's a fact question and absolutely inappropriate for a summary judgment.
Plaintiff relies solely upon the allegations of alter ego within his complaint, which contravenes the standards set forth in North Carolina General Statutes, section 1A–1, Rule 56(e). Defendants provided evidence that Lockett was acting within the authority vested in her by Sister–2–Sister when she terminated plaintiff's employment, and in response, plaintiff did not “ ‘produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.’ ” Wilkins, 185 N.C.App. at 672, 649 S.E.2d at 661 (quoting Draughon v. Harnett Cty. Bd. of Educ., 158 N.C.App. 208, 212, 580 S.E.2d 732, 735 (2003), aff'd, 358 N.C. 131, 591 S.E.2d 521 (2004) (per curiam)).
As part of his first argument, plaintiff also contends that Lockett's deposition testimony—which plaintiff's counsel proffered to the trial court during the summary judgment hearing—should have been considered prior to the trial court's ruling upon the motion. Although we agree with plaintiff's argument, he was not prejudiced by the trial court's decision not to review Lockett's deposition testimony.
Initially we note that the trial court was required to review all of the evidence properly presented to it prior to ruling upon a motion for summary judgment. See Schneider v. Brunk, 72 N.C.App. 560, 564, 324 S.E.2d 922, 925 (1985) () (citing Estrada v. Jaques, 70 N.C.App. 627, 643, 321 S.E.2d 240, 251 (1984)). Even though a trial court may exclude from its consideration an untimely affidavit, N.C. Gen.Stat. § 1A–1, Rule 56(c) (2007) (), this rule does not apply to the introduction of other evidence such as depositions, Pierson v. Cumberland County Civic Ctr. Comm'n, 141 N.C.App. 628, 635, 540 S.E.2d 810, 815 (2...
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...may exclude . . . an untimely affidavit" from its consideration of a summary judgment motion. Lockett v. Sister-2-Sister Solutions, Inc., 209 N.C.App. 60, 65, 704 S.E.2d 299, 302 (2011) (citing N.C. Gen. Stat. § 1A-1, Rule 56(c)). Although the court could accept late affidavits or evidence ......