Powell v. P2Enterprises, LLC

• Decision Date: 07 June 2016
• Docket Number: No. COA15–542.,COA15–542.
• Court: North Carolina Court of Appeals
• Parties: Robert V. POWELL, Plaintiff v. P2ENTERPRISES, LLC and Robert Henry Powell, Defendants.

247 N.C.App. 731

786 S.E.2d 798

Robert V. POWELL, Plaintiff

v.P2ENTERPRISES, LLC and Robert Henry Powell, Defendants.

No. COA15–542.

Court of Appeals of North Carolina.

June 7, 2016.

The Law Office of Herman L. Stephens, Winston–Salem, by Herman L. Stephens, for plaintiff.

Morrow Porter Vermitsky Fowler & Taylor, PLLC, by John N. Taylor, Jr. and John C. Vermitsky, Winston–Salem, for defendants.

CALABRIA, Judge.

Plaintiff Robert V. Powell ("Robert") initiated this action on 13 March 2013 by filing a complaint against P2Enterprises, LLC ("P2E") and his father, Robert Henry Powell ("Powell") (collectively, "defendants"), alleging unpaid wages under the North Carolina Wage and Hour Act ("NCWHA"), N.C. Gen.Stat. §§ 95–25.1, et seq. Robert now appeals the trial court's grant of summary judgment in favor of defendants. We affirm.

In 2008, after Robert approached Powell with the idea of owning and operating a restaurant, the parties set up P2E, a manager-managed limited liability company organized under the laws of North Carolina.

They named the company "P2Enterprises" to reflect the two Powells who were involved in the restaurant venture. According to P2E's Articles of Organization and related documents, Robert was its only Manager and Powell was the company's sole Member. On 2 July 2010, the parties executed a document giving P2E's Member and Manager "signing authority in all matters concerning the Corporation." On 4 October 2010, P2E acquired a restaurant located in Winston–Salem, North Carolina, and named it "Bob's Big Gas Subs and Pub" ("the restaurant"). Together, Robert and Powell created the idea and concept for the restaurant, a sub sandwich shop housed in a converted gas station. Both parties' signatures and titles appear on loan documents and the restaurant's lease.

In addition to his role as Manager of P2E, Robert also served as general manager of the restaurant. He was in charge of hiring and training employees; dealing with vendors; managing payroll and other expenses; setting employees' schedules; ordering food, beer, and supplies; and handling other daily operational tasks. Powell was rarely involved in the restaurant's day-to-day operations. He provided free labor when the restaurant was short-staffed, but his main role was serving as the "money man."

Although the restaurant appeared to be operating well, it was chronically short on cash. Whenever there were insufficient funds to pay vendors and restaurant staff, Robert would call Powell to request additional money. Occasionally, Powell responded that he could not contribute funds. When funds were not forthcoming from Powell, Robert decided not to pay himself for that pay period rather than default on other expenses.

By early 2011, Robert and Powell's working relationship started to suffer. In April 2011, Robert told head chef Tim Papenbrock ("Papenbrock") that he planned to buy Powell out. Around the same time, Powell distanced himself from the operation of the restaurant and took another job. Robert retained full control over the restaurant's operations. In 2012, a dispute arose between Robert and Powell regarding Robert's failure to pay the restaurant's expenses, including rent, utilities, and vendor bills. At that time, Powell learned that due to the restaurant's financial struggles, Robert had not paid himself for certain pay periods. Powell agreed to pay Robert $16,917.00 in back wages. However, in December 2012, when Powell sought to reassert some control over the restaurant's management, Robert tried to convince Papenbrock and other employees to leave with him in an attempt to force the restaurant to shut down. He intended to reopen without Powell and rehire the restaurant staff, but none of the employees agreed to Robert's plan. In January 2013, following a dispute with his father, Robert quit his job as general manager of the restaurant.

On 15 March 2013, Robert filed a complaint against defendants, alleging liability for unpaid wages plus interest, liquidated damages, and attorneys' fees, pursuant to the NCWHA. In response, defendants filed counterclaims and sought damages for breach of contract, conversion, constructive fraud, and breach of fiduciary duty. Defendants also moved for summary judgment on Robert's claims. The motion was heard by the Honorable Richard W. Stone on 5 May 2014 in Forsyth County Superior Court. On 11 June 2014, Judge Stone entered an order granting defendants' motion and dismissing all of Robert's claims with prejudice. Defendant's voluntarily dismissed their counterclaims against Robert without prejudice on 7 October 2014. Robert appeals.

On appeal, Robert argues that several factors establish defendants' liability for his unpaid wages under the NCWHA. Specifically, Robert contends that, inter alia, the appearance of Powell's electronic signature on all paychecks, Powell's establishment of and control over bank accounts that funded the restaurant, P2E's use of Powell's home address as its mailing and registered office address, and Powell's role as P2E's "money man" are dispositive of his claims. We disagree.

"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ " In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) ). "In ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party." Hinson v. Hinson, 80 N.C.App. 561, 563, 343 S.E.2d 266, 268 (1986) (citation omitted). "A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense." Draughon v. Harnett Cty. Bd. of Educ., 158 N.C.App. 705, 708, 582 S.E.2d 343, 345 (2003) (internal quotation marks and citation omitted). Furthermore, if a grant of summary judgment "can be sustained on any grounds, it should be affirmed on appeal." Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).

The NCWHA and the federal Fair Labor Standards Act ("FLSA") provide for recovery of an employee's unpaid wages from an "employer." N.C. Gen.Stat. § 95–25.22(a) ; 29 U.S.C. § 216(b). "The NCWHA is modeled after the FLSA." Hyman v. Efficiency, Inc., 167 N.C.App. 134, 137, 605 S.E.2d 254, 257 (2004) (citing Laborers' Int'l Union of N. Am. v. Case Farms, Inc., 127 N.C.App. 312, 314, 488 S.E.2d 632, 634 (1997) ). As such, " [i]n interpreting the NCWHA, North Carolina courts look to the FLSA for guidance." Garcia v. Frog Island Seafood, Inc., 644 F.Supp.2d 696, 707 (E.D.N.C.2009) ; see also Hyman, 167 N.C.App. at 142–49, 605 S.E.2d at 260–64 (applying federal employment case law to wage withholding and other claims brought pursuant to the NCWHA); Laborers' Int'l, 127 N.C.App. at 314, 488 S.E.2d at 634 (noting the NCWHA is modeled after the FLSA and relying on federal case law's interpretation of the term "employee"). Under the FLSA, a plaintiff bears the burden of establishing that he or she is an "employee." Steelman v. Hirsch, 473 F.3d 124, 128 (4th Cir.2007) (citation omitted).

An "employer" is "any person acting directly or indirectly in the interest of an employer in relation to an employee." N.C. Gen.Stat. § 95–25.2(5) ; 29 U.S.C. § 203(d).

Under both state and federal law, the term "person" includes individuals as well as commercial entities such as corporations. N.C. Gen.Stat. § 95–25.2(11) ; 29 U.S.C. § 203(a). "Accordingly, it is well established that, under certain conditions, individuals may be subjected to liability for unpaid wages[.]" Garcia, 644 F.Supp.2d at 720. Specifically, the NCWHA makes an "employer" liable for unpaid wages, liquidated damages, costs, and reasonable attorneys' fees. N.C. Gen.Stat. § 95–25.22.

"Described as ‘expansive’ by the [United States] Supreme Court, see Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973), the term ‘employer’ is ‘to be construed liberally [under the FLSA] because by it Congress intended to protect the country's workers.’ " Garcia, 644 F.Supp.2d at 720 (citation omitted). But the term "does have its limits." Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 295, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). As a result, whether a person constitutes an "employer" under the FLSA "turns upon the degree of control and direction one has over the daily work of an individual. The right to control, not necessarily the actual existence of control, is important." Zelaya v. J.M. Macias, Inc., 175 F.R.D. 625, 626 (E.D.N.C.1997) (citations omitted). To decide whether an individual is an "employer" for purposes of NCWHA and FLSA liability, courts apply an "economic reality" test.¹ Garcia, 644 F.Supp.2d at 720. This test examines "the totality of the circumstances to determine whether the individual has sufficient operational control over the workers in question and the allegedly violative actions to be held liable for unpaid wages or other damages." Id. (citation and quotations omitted).

Factors commonly relied on by courts in determining the extent of an individual's operational control over employees include whether the individual: (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.

Id. at 721 (citations omitted); see also Thompson v. Blessed Home Inc., 22 F.Supp.3d 542, 550 (E.D.N.C.2014) (citing Garcia and applying the "economic reality" test to the plaintiff's FLSA and NCWHA claims). "These factors are not exclusive nor is any one factor dispositive. ...