Piraino Bros. Llc v. Atl. Financial Group Inc.
| Citation | 712 S.E.2d 328 |
| Decision Date | 19 April 2011 |
| Docket Number | No. COA10–831.,COA10–831. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | PIRAINO BROTHERS, LLC, Plaintiff,v.ATLANTIC FINANCIAL GROUP, INC.; McKee Estates, LLC.; Darrell Avery, II; Jeffery L. Avery; Robert N. Burris, and Burris, MacMillan, Pearce & Burris, PLLC; David Baker; and Baker & Baker, PLLC, Defendants. |
OPINION TEXT STARTS HERE
Appeal by Plaintiff from orders entered 16 July and 28 September 2009 and judgment entered 30 December 2009 by Judge Jesse B. Caldwell, III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 January 2011.
Katten Muchin Rosenman LLP, Charlotte, by Richard L. Farley and Rebecca K. Lindahl, for Plaintiff.
Horack, Talley, Pharr & Lowndes, P.A., Charlotte, by Zipporah Basile Edwards and Robert B. McNeill, for Defendants David Baker and Baker & Baker, PLLC.Poyner Spruill LLP, by T. Richard Kane, Charlotte, and Andrew H. Erteschik, Raleigh, for Defendants Robert N. Burris and Burris, MacMillan, Pearce & Burris, PLLC.
On 12 May 2008, Plaintiff Piraino Brothers, LLC, commenced this action against Defendants Atlantic Financial Group, Inc. (“Atlantic”), McKee Estates, LLC (“McKee”), Darrell Avery, II, and Jeffery L. Avery (“Jeff Avery”) (collectively, “the Avery brothers”), Robert N. Burris (“Burris”), Burris, MacMillan, Pearce & Burris, PLLC (“the Burris firm”), David Baker (“Baker”), and Baker & Baker, PLLC. In its amended complaint of 9 September 2008, Plaintiff included claims of: default and breach of contract against Atlantic; breach of trust agreement against Burris and the Burris firm (collectively, “the Burris Defendants”); fraud against Atlantic and Darrell Avery, II; civil conspiracy against Atlantic, McKee, and the Avery brothers; tortious interference with a contract against Jeffery L. Avery and McKee; professional negligence against Baker and his firm (collectively, “the Baker Defendants”); conversion against the Avery brothers and McKee; and unfair and deceptive trade practices against Atlantic, McKee, and the Avery brothers. On 7 October 2008, the Burris Defendants moved for summary judgment. On 8 December 2008, Plaintiff moved to amend its complaint to add additional claims against the Burris Defendants for conversion, civil conspiracy, and aiding and abetting.
On 22 May 2009, the Baker Defendants moved for summary judgment. The same day, the Burris Defendants moved to supplement their motion for summary judgment. On 5 June 2009, the trial court heard both Plaintiff's and the Burris Defendants' motions, partially granting Plaintiff's motion to amend its complaint to add conversion and civil conspiracy claims, denying the addition of the aiding and abetting claim, and granting the Burris Defendants' motion for summary judgment on the existing claims. The Burris Defendants then moved for summary judgment on the new claims, which the trial court granted on 28 September 2009. The claims against the remaining Defendants were tried at the 28 September 2009 Civil Session of Mecklenburg County Superior Court. The jury returned the following verdicts: in favor of Plaintiff on its unfair and deceptive trade practices and civil conspiracy claims against Atlantic, McKee, and the Avery brothers; in favor of Plaintiff on its conversion claims against McKee and the Avery brothers; and in favor of Plaintiff on its claim for deficiency against Atlantic. On these verdicts, the jury awarded Plaintiff damages totaling $7,100,001.00 plus prejudgment interest. In addition, although the jury found Baker professionally negligent, it also found Plaintiff contributorily negligent.
On 30 December 2009, the trial court entered judgment in favor of Plaintiff on Plaintiff's claims for conversion, civil conspiracy, and unfair and deceptive trade practices, and in favor of Baker on Plaintiff's claim for professional negligence. Plaintiff appeals. As discussed below, we affirm.
This case arises from a land development project gone awry. Giusto and Enrico Piraino are brothers whose company manufactures and supplies frozen Italian foods. In 2005, the Piraino brothers met the Avery brothers. Darrell Avery's company, Atlantic, had a contract to purchase real property in Union County which it planned to develop as residential lots. However, Atlantic lacked the financial wherewithal to execute this plan. Darrell Avery suggested that the Piraino brothers invest in the project, and, following negotiations, Baker formed Piraino Brothers, LLC, which then contracted with Atlantic on the property transaction. The Burris firm served as Atlantic's attorneys in the matter.
After this initial transaction closed successfully, Darrell Avery told Giusto Piraino that Atlantic had a contract to buy from William Davis Cauthen (“Cauthen”) twenty-seven acres on McKee Road in Mecklenburg County (“the property”) for $2,800,000, and that a national builder was interested in developing it. Darrell Avery asked Plaintiff to fund this project, and, encouraged by the success of the initial transaction, Plaintiff agreed. Plaintiff then asked Baker to review the draft contract (“the agreement”) prepared by the Burris firm on behalf of Atlantic.
Unknown to Plaintiff, Atlantic's contract to purchase the property was actually for $1,800,000 rather than $2,800,000. In addition, Plaintiff and Baker did not know that, on 18 August 2005, the Burris firm had prepared an assignment of Atlantic's contract for the property to McKee, an entity the Burris firm had formed in South Carolina days earlier. On the same day, the Burris firm conducted an unfunded closing with McKee and Cauthen, anticipating that Cauthen would receive $1,800,000 from the funds to be provided by Plaintiff.
The draft agreement between Atlantic and Plaintiff provided that, using a portion of the funds from Plaintiff, “Atlantic or its designee” would acquire the property from Cauthen. Baker repeatedly asked that the words “or its designee” be removed from the contract, but the Burris firm refused to do so. All drafts of the agreement provided that the funds would be wired by Plaintiff to the Burris firm “IN TRUST” before disbursement. When the Burris firm emailed the final contract to Baker, the phrase “or its designee” remained, as Baker pointed out to Plaintiff. Baker advised the Piraino brothers that they could strike through the words if they wished to do so. Instead, without making any changes to the agreement, Plaintiff wired the money to the Burris firm's trust account.
Although the Burris firm had not received a signed agreement from Plaintiff, Burris immediately disbursed the funds to McKee. McKee funded the previous closing with Cauthen for $1,800,000, and transferred the property to Atlantic for $2,800,000. Atlantic then executed a $2,800,000 promissory note and first-priority deed of trust in favor of Plaintiff. The Burris firm then sent copies of these documents to Baker. Burris testified that he also sent a copy of the settlement statement, which showed the flip through McKee, to Baker. However, Baker testified at trial that he did not receive it.
After the land transfer was completed, in November 2005 and February 2006, Atlantic requested and received draws on construction funds from Plaintiff. However, after seeing little progress at the development, Plaintiff refused further requests for funds. In late 2006, Giusto Piraino spoke to a real estate agent about finding a buyer for the property. The agent reviewed the public records and informed Giusto Piraino about the flip through McKee. He also discovered that, although Plaintiff had paid $1,400,000 in construction funds to Atlantic, less than $80,000 of that sum was used to develop the property. Atlantic had spent the remainder of the money on luxury vehicles, televisions, and watches. This lawsuit followed Plaintiff's receipt of this information.
Plaintiff raises two issues in this appeal, arguing that the trial court erred in (I) granting summary judgment for the Burris Defendants fact on Plaintiff's claims of breach of an express trust and civil conspiracy, and (II) admitting expert testimony on the issue of Plaintiff's contributory negligence and submitting this issue to the jury. As discussed below, we affirm on both issues.
Plaintiff first argues that the trial court erred in granting summary judgment to the Burris Defendants because there are genuine issues of material fact on Plaintiff's claims of breach of an express trust and civil conspiracy. We disagree.
In reviewing the trial court's decision to grant a motion for summary judgment, we consider
whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Wilmington Star–News v. New Hanover Regional Medical Center, 125 N.C.App. 174, 178, 480 S.E.2d 53, 55, appeal dismissed, 346 N.C. 557, 488 S.E.2d 826 (1997). Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant. Id.
Bruce–Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998). Further,
[i]n a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: 1) [p]roving that an essential element of the opposing party's claim is nonexistent; or 2) [s]howing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.
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.
Hines v. Yates, 171 N.C.App. 150, 157, 614 S.E.2d 385, 389 (2...
To continue reading
Request your trial
-
Mountain Land Props., Inc. v. Lovell
...re Fifth Third Bank, 719 S.E.2d 171, 181 (N.C.Ct.App.2011) (internal citation and quotations omitted); Piraino Bros., LLC v. Atlantic Fin.Grp., Inc., 712 S.E.2d 328, 333 (N.C.Ct.App.2011) ; Mace v. Pyatt, 691 S.E.2d 81, 87 (N.C.Ct.App.2010). In North Carolina, civil conspiracy is not a sepa......
-
In re Southeastern Eye Center-Pending Matters
... ... Battleground Properties, Inc. and Third-Party Defendant ... Arthur Nivison ... This ... action is a piece of a larger group of cases that have found ... their way to the ... reported out of malice or a chance for financial gain) ... Defamatory statements made by one ... Piraino Bros., LLC v. Atl. Fin. Grp., Inc. , 211 ... ...
-
Priselac v. The Chemours Co.
... ... DuPont de Nemours and ... Company, Inc., E.I. duPont Chemical Corporation, Corteva, ... 662, 677-80 (2009)1: ... Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 554-63 ... n.2 (2007); Piraino Bros ... LLC v. Atl. Fin ... Grp..Inc ... 211 ... ...
-
Mountain Land Props., Inc. v. Fred Lovell, Rodney Hickox, Lynn A. Hickox, And, SCBT, N.A., Civil Case No. 2:12–CV–84–MR–DLH.
...171, 181 (N.C.Ct.App.2011) (internal citation and quotations omitted); Piraino Bros., LLC v. Atlantic Fin.Grp., Inc., [211 N.C.App. 343] 712 S.E.2d 328, 333 (N.C.Ct.App.2011); Mace v. Pyatt, [203 N.C.App. 245] 691 S.E.2d 81, 87 (N.C.Ct.App.2010). In North Carolina, civil conspiracy is not a......