{ "id": 4159545, "name": "STEPHEN N. SELLERS, Plaintiff v. THOMAS MORTON, FRANK KINCAID, and STROUPE MIRROR COMPANY, INC., Defendants", "name_abbreviation": "Sellers v. Morton", "decision_date": "2008-06-17", "docket_number": "No. COA07-1069", "first_page": "75", "last_page": "86", "citations": [ { "type": "official", "cite": "191 N.C. App. 75" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "620 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634256 ], "year": 2005, "pin_cites": [ { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0887-01" ] }, { "cite": "629 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635824 ], "year": 2006, "pin_cites": [ { "page": "901" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0898-01" ] }, { "cite": "571 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "852", "parenthetical": "internal quotations and brackets omitted" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249232 ], "year": 2002, "pin_cites": [ { "page": "169", "parenthetical": "internal quotations and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0163-01" ] }, { "cite": "596 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "463", "parenthetical": "concluding punitive damages were not warranted where record was devoid of evidence of a civil conspiracy or unfair and deceptive practices claim" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8898536 ], "year": 2004, "pin_cites": [ { "page": "508", "parenthetical": "concluding punitive damages were not warranted where record was devoid of evidence of a civil conspiracy or unfair and deceptive practices claim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0499-01" ] }, { "cite": "572 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "206", "parenthetical": "\"In order to recover on a claim of unjust enrichment, a party must prove that it conferred a benefit on another party, that the other party consciously accepted the benefit, and that the benefit was not conferred gratuitously or by an interference in the affairs of the other party.\"" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249973 ], "year": 2002, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0321-01" ] }, { "cite": "174 N.C. App. 327", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351981 ], "year": 2005, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0327-01" ] }, { "cite": "399 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527593 ], "year": 1991, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0255-01" ] }, { "cite": "608 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "801", "parenthetical": "quoting Henderson v. LeBauer, 101 N.C. App. 255, 261, 399 S.E.2d 142, 145 (1991)" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471741 ], "year": 2005, "pin_cites": [ { "page": "690-91", "parenthetical": "quoting Henderson v. LeBauer, 101 N.C. App. 255, 261, 399 S.E.2d 142, 145 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0687-01" ] }, { "cite": "66 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620283 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0195-01" ] }, { "cite": "574 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "92", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11433311 ], "year": 2001, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0097-01" ] } ], "analysis": { "cardinality": 989, "char_count": 26311, "ocr_confidence": 0.742, "pagerank": { "raw": 1.7197200287380915e-07, "percentile": 0.7037379399339498 }, "sha256": "20796d595fc535d45ad7c221239c9a2cbcd8d0fd1a2d9c16200e7bf1c89fa875", "simhash": "1:7eb0fe609f0b2d2c", "word_count": 4168 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "STEPHEN N. SELLERS, Plaintiff v. THOMAS MORTON, FRANK KINCAID, and STROUPE MIRROR COMPANY, INC., Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nStephen N. Sellers (\u201cplaintiff\u2019) appeals the trial court\u2019s order granting summary judgment in favor of Stroupe Mirror Company, Inc. (\u201cStroupe Mirror\u201d), Thomas Morton (\u201cMorton\u201d), and Frank Kincaid (\u201cKincaid,\u201d collectively \u201cdefendants\u201d). Defendants appeal the trial court\u2019s order denying their motion to dismiss plaintiff\u2019s appeal. We affirm.\nPlaintiff was the president and sole shareholder of Sellers Glass Industries, Inc. (\u201cSellers Glass\u201d). Morton and Kincaid were the principal officers, directors and shareholders of SGI Acquisitions, LLC (\u201cSGI\u201d). In January 2001, plaintiff sold substantially all of the assets of Sellers Glass to SGI.\nShortly after the sale of assets, plaintiff and SGI entered into two separate contracts. On 31 January 2001, plaintiff entered into a \u201cConsulting and Non-Competition Agreement\u201d (\u201cnon-compete agreement\u201d) with SGI where plaintiff agreed to provide consulting services to SGI for a period of 90 days along with a covenant not to compete with SGI for a term of five years. SGI agreed to pay plaintiff $100,000.00 in sixty equal monthly installments as consideration for plaintiff\u2019s services and plaintiff\u2019s covenant not to compete.\nThe second contract, a lease agreement with SGI, was signed on 1 February 2001. Plaintiff leased real property to SGI for an initial term of six years (\u201clease agreement\u201d). The lease agreement provided:\nDuring the first four years of the initial term, Tenant shall pay to Landlord for the use and occupancy of the Premises the annual rental at the base rate of $75,000.00, payable in monthly installments in the amount of $6,250.00. . . . During the fifth and sixth years of the initial term, Tenant shall pay Landlord . . . monthly installments of $4,375.00.\nOn 13 August 2001, Morton and Kincaid changed the name of their company from SGI to Glass Solutions, LLC (\u201cGlass Solutions\u201d). Prior to the name change, SGI entered into a loan agreement with Merrill Lynch Business Financial Services, Inc. (\u201cMerrill Lynch\u201d). The loan agreement granted Merrill Lynch a security interest in all of SGI\u2019s assets, including the assets acquired from Sellers Glass. On 8 October 2003, Glass Solutions defaulted on its loan with Merrill Lynch. As a result of its financial situation, Glass Solutions sold all its assets to Stroupe Mirror and on 16 January 2004, Stroupe Mirror assumed liability for some of Glass Solutions\u2019 debts according to the terms of an asset purchase agreement (\u201cpurchase agreement\u201d). Specifically, Stroupe Mirror agreed to pay $300,000.00 to satisfy Glass Solutions\u2019 indebtedness to its group of investors. Stroupe Mirror also entered into employment agreements with Morton and Kincaid with simultaneous consulting contracts.\nAlthough Stroupe Mirror did not assume Glass Solutions\u2019 liability for either the lease agreement or the non-compete agreement, plaintiff continued receiving payments from Glass Solutions for the lease agreement and the non-compete agreement until the first week in February 2004. At that time, Glass Solutions completely stopped making payments.\nOn 6 April 2004, plaintiff received a letter from Glass Solutions\u2019 attorney notifying him that Glass Solutions had ceased all operations effective 26 January 2004. The attorney\u2019s letter also informed plaintiff that Glass Solutions had no remaining funds for payments on either the lease agreement or the non-compete agreement.\nOn 5 January 2007, Sellers filed a complaint against defendants alleging tortious interference with contract, civil conspiracy with an illegal purpose, unjust enrichment against Kincaid and Morton, and punitive damages.\nOn 15 May 2007, Stroupe Mirror filed a Motion for Summary Judgment. On 24 May 2007, Morton and Kincaid also moved for summary judgment. On 8 June 2007 in Guilford County Superior Court, the Honorable John O. Craig, III granted both motions for summary judgment in favor of defendants (\u201cthe order\u201d).\nPlaintiff filed a notice of appeal from the order on 6 July 2007. The Certificate of Service attached to plaintiff\u2019s notice of appeal described the date of service as 6 July 2006, however, the envelopes containing plaintiff\u2019s notice of appeal were postmarked 10 July 2007. Stroupe Mirror filed and served a motion to dismiss plaintiffs appeal on 12 July 2007, and Morton and Kincaid filed motions to dismiss the appeal on 24 July 2007 (\u201cmotions to dismiss the appeal\u201d). On 10 August 2007, the Honorable R. Stuart Albright denied the motions to dismiss the appeal. From this order, defendants appeal.\nI. Order Denying Motions to Dismiss Appeal\nDefendants argue this Court lacks jurisdiction to hear plaintiffs appeal because plaintiffs notice of appeal was defective. We disagree.\nThe order granting summary judgment in favor of defendants was entered 8 June 2007. Defendants assert plaintiffs notice of appeal from the summary judgment order was not \u201cserved\u201d within the statutorily allotted time of thirty days. The envelopes used to send the notice of appeal to defendants\u2019 attorneys were postmarked 10 July 2007. In addition, defendants contend the certificate of service attached to the notice of appeal did not comply with the Rules of Appellate Procedure because the certificate of service indicates the service date was 6 July 2006, but the envelopes serving the notice of appeal were postmarked on 10 July 2007.\nThe trial court is not required to make findings of fact absent a request by the parties, and if neither party requests findings of fact, there is a presumption that the trial court, upon proper evidence, found facts sufficient to support its ruling. Data Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 101, 545 S.E.2d 243, 246 (2001). When the trial court sits as a finder of fact, questions concerning the weight and credibility of the evidence are the province of the trial court. Cartin v. Harrison, 151 N.C. App. 697, 703, 567 S.E.2d 174, 178 (2002). \u201cConclusions of law that are correct in light of the findings are also binding on appeal.\u201d State v. Howell, 343 N.C. 229, 239, 470 S.E.2d 38, 43 (1996).\nWe conclude the trial court did not err in denying defendants\u2019 motion to dismiss plaintiff\u2019s appeal. The Rules of Appellate Procedure require the notice of appeal to be filed and served within thirty (30) days after entry of judgment \u201cif a party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure. . . .\u201d N.C.R. App. P. 3(c)(1) (2007). The summary judgment order was served on 8 June 2007 and the notice of appeal was filed on 6 July 2007. The notice of appeal may be served as provided in Rule 26 of the Rules of Appellate Procedure. N.C.R. App. P. 3(e) (2007). Rule 26(d) of the appellate rules provides that proof of service can be effectuated by:\nan acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and the names of the persons, certified by the person who made service. Proof of service shall appear on or be affixed to the papers filed.\nN.C.R. App. P. 26(d) (2007).\nThe certificate of service raises a rebuttable presumption of valid service. Hocke v. Hanyane, 118 N.C. App. 630, 633, 456 S.E.2d 858, 860 (1995) (quoting In re Cox, 36 N.C. App. 582, 586, 244 S.E.2d 733, 736 (1978)). Here, plaintiff\u2019s \u201cCertificate of Service,\u201d signed and dated by the plaintiff\u2019s attorney, was attached to the notice of appeal. Stroupe Mirror contends the certificate of service does not indicate when the notice of appeal was served. We disagree. The certificate of service reads:\nThis is to certify that I have served the foregoing Plaintiff\u2019s Notice of Appeal on Defendants by forwarding a copy of same by first-class mail, postage prepaid, and addressed to the attorneys for Defendants whose \u00f1ames and addresses appear below.\nThis the 6th day of July 2006. Is/ Douglas S. Harris Attorney for Plaintiff\nThe trial court did not err in concluding the date indicating the date of service was sufficient to withstand the motion to dismiss because the date, 6 July 2006, was an obvious typographical error. Plaintiff presented evidence in the form of two affidavits indicating plaintiff filed the notice on 6 July 2007 and placed it in the mail on the same day. In addition, the notice of appeal was clocked in at the Guilford County Courthouse at 3:16 p.m. on 6 July 2007. Although defendants argue they rebutted the presumption of valid service by submitting the envelopes post-marked 10 July 2007, the trial court was free to weigh the credibility of the envelopes against plaintiff\u2019s affidavits and find the date of service to be 6 July 2007. \u201cWhere such presumed findings are supported by competent evidence, they are deemed conclusive on appeal, despite the existence of evidence to the contrary.\u201d Data Gen. Corp., supra. This assignment of error is overruled.\nII. Summary Judgment\nPlaintiff asserts the trial court erred in granting defendants\u2019 summary judgment motions because genuine issues of material fact existed rendering summary judgment improper. We disagree.\nThe standard of review on appeal for a summary judgment is whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980); Barbour v. Little, 37 N.C. App. 686, 692, 247 S.E.2d 252, 256 (1978). \u201cThe question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact.\u201d Tuberculosis Assoc. v. Tuberculosis Assoc., 15 N.C. App. 492, 494, 190 S.E.2d 264, 265 (1972).\nPlaintiff argues because a number of facts are disputed, summary judgment was improper. In order to survive a summary judgment motion, the opposing party must forecast evidence indicating the existence of a triable issue of material fact. Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976). We therefore examine whether plaintiff forecasted evidence of disputed facts which are material to plaintiff\u2019s claims. Plaintiff brought claims for tortious interference with contract, civil conspiracy with an illegal purpose, unjust enrichment, and punitive damages based on the interference with contract claims.\nA. Tortious Interference with Contract\nTo establish a claim for tortious interference with contract, a plaintiff must show:\n(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff.\nWhite v. Cross Sales & Eng\u2019g Co., 177 N.C. App. 765, 768-69, 629 S.E.2d 898, 901 (2006). Interference is without justification if a defendant\u2019s motive is not \u201creasonably related to the protection of a legitimate business interest.\u201d Privette v. University of North Carolina, 96 N.C. App. 124, 134, 385 S.E.2d 185, 190 (1989).\nWhether an actor\u2019s conduct is justified depends upon \u201cthe circumstances surrounding the interference, the actor\u2019s motive or conduct, the interests sought to be advanced, the social interest in protecting the freedom of action of the actor[,] and the contractual interests of the other party.\u201d Peoples Security Life Ins. Co. v. Hooks, 322 N.C. at 221, 367 S.E.2d at 650. Generally speaking, interference with contract is justified if it is motivated by a legitimate business purpose, as when the plaintiff and the defendant, an outsider, are competitors. Id. at 221-22, 367 S.E.2d at 650.\nEmbree Construction Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992). A complainant must show that the defendant acted with malice and for a reason not reasonably related to the protection of a legitimate business interest of the defending party. Market America, Inc. v. Christman-Orth, 135 N.C. App. 143, 158, 520 S.E.2d 570, 581 (1999) (quotation omitted).\nPlaintiff contends malice\u2019 was present due to circumstances surrounding the purchase agreement. Specifically, (1) Morton misrepresented to plaintiff whether Glass Solutions\u2019 investors received any money under the purchase agreement, (2) Stroupe Mirror entered the purchase agreement as revenge for plaintiff\u2019s refusal to sell Glass Solutions to Stroupe Mirror years earlier, (3) plaintiff was the only unsecured creditor who did not receive funds under the purchase agreement, and (4) Morton and Kincaid asked one of plaintiff\u2019s affiants to give false testimony.\nPlaintiff did not forecast sufficient evidence to support his contention that he was the only creditor that was not paid under the purchase agreement. The purchase of Glass Solutions\u2019 assets affected all of Glass Solutions\u2019 liabilities, not just the contracts with plaintiff. The purchase agreement provided that \u201c[Glass Solutions] convenants that [Glass Solutions] shall[,] at or prior to Closing[,] satisfy all present liabilities of [Glass Solutions] affecting the Assets and shall timely and fully satisfy all other liabilities of [Glass Solutions] to its creditors.\u201d Glass Solutions, Kincaid and Morton also warranted to Stroupe Mirror that the purchase agreement would not affect Glass Solutions\u2019 contracts with other creditors, including the lease agreement and the non-compete agreement. The purchase agreement provides that \u201c[Stroupe Mirror] may, but shall not be obligated, to assume any of [Glass Solutions\u2019] contracts listed on Exhibit 5(d).\u201d Exhibit 5(d) lists eight contracts, two of which are the lease agreement and non-compete agreement with plaintiff. This evidence does not support plaintiff\u2019s contention that Stroupe Mirror intentionally induced the purchase of assets in order to interfere with plaintiff\u2019s contracts with Glass Solutions, since Stroupe Mirror could disclaim liability for the contracts that were held by other creditors. In addition, even if Morton misrepresented the terms of the purchase agreement to plaintiff and encouraged false testimony, those facts do not support a finding that Stroupe Mirror, Kincaid, and Morton intentionally induced Glass Solutions\u2019 failure to perform its agreements with plaintiff. Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 657, 464 S.E.2d 47, 54 (1995). We also conclude that defendants Kincaid and Morton presented a legitimate business reason for selling the assets: to satisfy the lien held by Merrill Lynch.\nB. Civil Conspiracy\n\u201cThere is no independent cause of action for civil conspiracy.\u201d Toomer v. Garrett, 155 N.C. App. 462, 483, 574 S.E.2d 76, 92 (2002) (citation omitted). \u201cOnly where there is an underlying claim for unlawful conduct can a plaintiff state a claim for civil conspiracy by also alleging the agreement of two or more parties to carry out the conduct and injury resulting from that agreement.\u201d Id. (citing Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783 (1951)).\nA threshold requirement in any cause of action for damages caused by acts committed pursuant to a conspiracy must be the showing that a conspiracy in fact existed. The existence of a conspiracy requires proof of an agreement between two or more persons. Although civil liability for conspiracy may be established by circumstantial evidence, the evidence of the agreement must be sufficient to create more than a suspicion or conjecture in order to justify submission to a jury.\nDove v. Harvey, 168 N.C. App. 687, 690-91, 608 S.E.2d 798, 801 (2005) (quoting Henderson v. LeBauer, 101 N.C. App. 255, 261, 399 S.E.2d 142, 145 (1991)). In Henderson, plaintiff alleged doctors conspired to cover up circumstances surrounding her husband\u2019s death. Id. This Court affirmed summary judgment for defendants because plaintiff\u2019s evidence was insufficient to show defendants agreed to cover up her husband\u2019s death. Id. Similarly, in Pleasant Valley Promenade, 120 N.C. App. at 657, 464 S.E.2d at 54, this Court concluded there was insufficient evidence to support plaintiffs allegations that defendants conspired to close defendant\u2019s store for the purpose of breaching plaintiff\u2019s contract, where the closing of the store was an operational decision made by the defendant.\nHere, plaintiff alleges Stroupe Mirror bribed Kincaid and Morton to enter a purchase agreement to sell Glass Solutions\u2019 assets. Plaintiff further alleges the consulting fees paid to Kincaid and Morton did not benefit Glass Solutions, Kincaid and Morton were incompetent in the glass business, Morton misrepresented to plaintiff whether investors were paid, and Glass Solutions was the only creditor not paid under the purchase agreement.\nThe threshold issue is whether plaintiff forecasted evidence of an agreement between Stroupe Mirror, Kincaid, and Morton that caused Glass Solutions to breach the lease and non-c\u00f3mpete agreements with plaintiff. The evidence shows that Kincaid and Morton decided to enter the purchase agreement with Stroupe Mirror in an effort to remove Merrill Lynch\u2019s lien on Glass Solutions\u2019 assets. The terms of the purchase agreement do not support plaintiff\u2019s allegation that defendants intentionally excluded payment to plaintiff. This assignment of error is overruled.\nC. Unjust Enrichment against Morton and Kincaid\nPlaintiff alleges Morton and Kincaid were unjustly enriched by the employment and consulting contracts which benefitted them and not Glass Solutions. Plaintiff contends funds which would have been used to pay plaintiff were applied to pay Morton and Kincaid under their employment and consulting agreements with Stroupe Mirror.\n\u201cIn order to establish a claim for unjust enrichment, a party must have conferred a benefit on the other party.\u201d D.W.H. Painting Co. v. D.W. Ward Constr. Co., 174 N.C. App. 327, 334, 620 S.E.2d 887, 893 (2005). Here, plaintiff\u2019s unjust enrichment claim is based on employment and consulting contracts \u201cbenefitting\u201d Kincaid and Morton, which plaintiff alleges were paid at the expense of Glass Solutions. Plaintiff does not prove that he conferred a benefit on defendants, which is necessary in order to recover on an unjust enrichment claim. Southeastern Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 330, 572 S.E.2d 200, 206 (2002) (\u201cIn order to recover on a claim of unjust enrichment, a party must prove that it conferred a benefit on another party, that the other party consciously accepted the benefit, and that the benefit was not conferred gratuitously or by an interference in the affairs of the other party.\u201d). This assignment of error is overruled.\nD. Punitive Damages\nPlaintiff argues Morton and Kincaid acted with malice by entering into the purchase agreement with Stroupe Mirror. Plaintiff alleges Stroupe Mirror previously tried to buy Glass Solutions from plaintiff. Since Stroupe Mirror was. unsuccessful, plaintiff alleges Stroupe Mirror had a motive to exclude payment to plaintiff when it purchased the assets of Glass Solutions.\n\u201cPunitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud. (2) Malice. (3) Willful or wanton conduct.\u201d N.C. Gen. Stat. \u00a7 1D-I5(a) (2007). Since we conclude that the trial court did not err in granting summary judgment on plaintiff\u2019s claims of tortious interference, plaintiff is not entitled to compensatory damages. Therefore, the trial court did not err in concluding as a matter of law plaintiff was not entitled to punitive damages. See Di Frega v. Pugliese, 164 N.C. App. 499, 508, 596 S.E.2d 456, 463 (2004) (concluding punitive damages were not warranted where record was devoid of evidence of a civil conspiracy or unfair and deceptive practices claim).\nIII. Discovery\nPlaintiff contends the trial court erred in ruling on the motions for summary judgment before the end of the discovery period. We disagree.\n\u201c[I]t is ordinarily error when a court hears and rules upon a motion for summary judgment while discovery is pending and the party seeking discovery has not been dilatory or lazy in doing so.\u201d Shroyer v. Gty. of Mecklenburg, 154 N.C. App. 163, 169, 571 S.E.2d 849, 852 (2002) (internal quotations and brackets omitted) (citation omitted). However, where there is no evidence that plaintiff sought discovery prior to the motions for summary judgment, no record of any objections to hearing the motions for summary judgment, and no action on the part of plaintiff to continue the hearing to allow additional time for pre-trial discovery, there is no error in proceeding with the summary judgment hearing. Id.\nHere, the only discovery requests that are included in the record on appeal are from defendants. Defendants served the discovery requests in February and May 2007. The summary judgment motion was heard on 5 June 2007. Plaintiff did not include any evidence in the record showing that he was awaiting discovery responses from defendants at the time of the summary judgment hearing. While plaintiff alleges in his appellate brief that he \u201cintended to take James Stroupe\u2019s deposition,\u201d plaintiff does not allege his failure to depose witnesses prior to the summary judgment hearing was attributable to actions by the court or by defendants. Plaintiff was free to serve discovery requests prior to the June 2007 hearing and was free to object to the summary judgment hearing on that basis. This assignment of error is overruled.\nIV. Conclusion\nWe affirm the trial court\u2019s denial of defendants\u2019 motion to dismiss plaintiff\u2019s appeal and the trial court\u2019s grant of summary judgment in favor of defendants on plaintiff\u2019s tortious interference with contract, civil conspiracy, unjust enrichment, and punitive damages claims.\nAffirmed.\nJudges WYNN and McGEE concur.\n. Plaintiff also filed a breach of contract complaint against Sellers Acquisition Group (\u201cSAC\u201d), a holding company for SGI, which he later voluntarily dismissed without prejudice.\n. We note that N.C. Rules of Appellate Procedure, Rule 27(b) provides that when a party \u201chas the right to do some act or take some proceedings within a prescribed period after service of a notice or other paper on him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.\u201d The certificate of service attached to the summary judgment order indicates the order was served by hand delivery or deposited in the U.S. Mail. Since we do not know the manner of service for the summary judgment order, we do not rely on this rule; however, if served by mail, service on 10 July 2007 would be proper.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Douglas S. Harris, for plaintiff-appellant.", "Wyatt, Early, Harris, Wheeler, LLP, by William E. Wheeler, for defendant Stroupe Mirror Company, Inc.", "Keziah, Gates & Samet, L.L.P., by Andrew S. Lasine, for defendants Thomas Morton and Frank Kincaid." ], "corrections": "", "head_matter": "STEPHEN N. SELLERS, Plaintiff v. THOMAS MORTON, FRANK KINCAID, and STROUPE MIRROR COMPANY, INC., Defendants\nNo. COA07-1069\n(Filed 17 June 2008)\n1. Appeal and Error\u2014 notice of appeal \u2014 date of service\nThe trial court did not err by denying defendants\u2019 motion to dismiss plaintiff\u2019s appeal based on the date of service of notice of appeal. The trial court was free to weigh the credibility of evidence concerning the date of service and find a particular date; presumed findings supported by competent evidence are deemed conclusive on appeal.\n2. Contracts\u2014 tortious interference \u2014 resale of business\u2014 evidence of malice\nThe trial court did not err by granting summary judgment for defendants on a claim for tortious interference with contract arising from the sale of plaintiff\u2019s business to defendants Morton and Kincaid and its subsequent resale to defendant Stroupe Mirror. Plaintiff contended that malice was present in the circumstances surrounding the Stroupe purchase agreement, but the evidence did not support plaintiff\u2019s contentions, and a legitimate business reason was presented for the sale.\n3. Conspiracy\u2014 civil \u2014 breach of agreements \u2014 sufficiency of evidence\nThe trial court did not err by granting summary judgment for defendants on a claim for civil conspiracy arising from the sale of plaintiffs business to defendants Morton and Kincaid and its subsequent resale to defendant Stroupe Mirror. The threshold issue was whether plaintiff forecast evidence of an agreement between defendants to cause the first purchaser (SGI) to breach its lease and non-compete agreements with plaintiff, but the evidence shows that the second sale was entered into in an effort to remove a lien and does not support the allegation that defendants intentionally excluded payment to plaintiff.\n4. Unjust Enrichment\u2014 sale and resale of business \u2014 benefit not conferred on defendants\nThe trial court did not err by granting summary judgment for defendants on a claim for unjust enrichment arising from the sale of plaintiffs business to defendants Morton and Kincaid and its subsequent resale to defendant Stroupe Mirror. Plaintiff did not prove that he conferred a benefit on defendants, which is necessary in order to recover on an unjust enrichment claim.\n5. Damages and Remedies\u2014 punitive \u2014 summary judgment on underlying claim\nThe trial court did not err by granting summary judgment for defendants on a claim for punitive damages arising from the sale of plaintiffs business to defendants Morton and Kincaid and its subsequent resale to defendant Stroupe Mirror. Summary judgment was correctly granted on the underlying tortious interference claim:\n6. Discovery\u2014 summary judgment before end of discovery period \u2014 no discovery sought by opposing party\nThe trial court did not err by ruling on motions for summary judgment before the end of a discovery period where there was no evidence that plaintiff (the opposing party) sought discovery prior to the motions for summary judgment, no record of any objections to hearing the motions for summary judgment, and no action by plaintiff to continue the hearing for pretrial discovery.\nAppeal by plaintiff and defendants from orders entered 8 June 2007 by Judge John 0. Craig, III and 10 August 2007 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 19 February 2008.\nDouglas S. Harris, for plaintiff-appellant.\nWyatt, Early, Harris, Wheeler, LLP, by William E. Wheeler, for defendant Stroupe Mirror Company, Inc.\nKeziah, Gates & Samet, L.L.P., by Andrew S. Lasine, for defendants Thomas Morton and Frank Kincaid." }, "file_name": "0075-01", "first_page_order": 107, "last_page_order": 118 }