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        "text": "STROUD, Judge.\nThis case comes to us on remand from the North Carolina Supreme Court, which reversed this Court\u2019s prior opinion and remanded for us to consider the issue of agency. We affirm the trial court\u2019s order allowing defendant Corinna\u2019s motion for directed verdict on the issue of agency.\nI. Background\nThe relevant background facts have been laid out by our Supreme Court in Green v. Freeman,_N.C._,_, 749 S.E.2d 262, 265-67 (2013) (Green I), and we will not repeat them here. The Supreme Court held that plaintiffs\u2019 evidence on breach of fiduciary duty was insufficient as a matter of law, but remanded for this Court to consider whether the trial court erred in allowing' defendant Corinna Freeman\u2019s motion for directed verdict on an \u00bfgency theory of liability and piercing the corporate veil. Id. at_, 749 S.E.2d at 271.\nII. Agency and Piercing the Corporate Veil\nTo hold Corinna personally liable for the actions of the corporation,\nplaintiffs must present evidence of three elements:\n(1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and\n(2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of [a] plaintiff\u2019s legal rights; and\n(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.\nId. at_, 749 S.E.2d at 270 (citation and quotation marks omitted).\nThe Supreme Court has already held that plaintiffs presented sufficient evidence on the first element. It remanded to this Court for us to consider whether plaintiffs presented sufficient evidence on the other two elements. The only remaining issue to be considered is that of agency. Plaintiffs argue that the trial court erred in allowing defendant Corinna\u2019s motion for directed verdict on an agency theory because there was evidence that Jack Freeman, her son, was her agent.\nWe conclude that, even assuming the 2001 letter created an agency relationship, it was an agency relationship between the Piedmont companies and Jack, not between Corinna and Jack. Although the Supreme Court held that it was proper to pierce the corporate veil, plaintiffs only argue that Jack was Corinna\u2019s personal agent, not that he was an agent of the corporation, and that piercing the corporate veil therefore makes Corinna liable for his acts. Accordingly, we affirm the trial court\u2019s order directing verdict on the issue of agency.\nA. Standard of Review\nThe standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party\u2019s favor or to present a question for the jury.\nDavis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (citations omitted).\nB. Analysis\nAgency, like piercing the corporate veil, is not itself a cause of action; it is \u201cthe relationship that arises from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.\u201d Outer Banks Contractors, Inc. v. Daniels & Daniels Const., Inc., 111 N.C. App. 725, 730, 433 S.E.2d 759, 762 (1993) (citation and quotation marks omitted).\n\u201cAgency is a fact to be proved as any other, and where there is no evidence presented tending to establish an agency relationship, the alleged principal is entitled to a directed verdict.\u201d Albertson v. Jones, 42 N.C. App. 716, 718, 257 S.E.2d 656, 657 (1979); Outer Banks Contractors, Inc., 111 N.C. App. at 730, 433 S.E.2d at 762 (\u201cThe presence of a principal-agent relationship is a question of fact for the jury when the evidence tends to prove it; a question of law for the trial court if the facts lead to only one conclusion.\u201d).\nTo establish an agency relationship, \u201c[t]he principal must intend that the agent shall act for him, the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them.\u201d Ellison v. Hunsinger, 237 N.C. 619, 628, 75 S.E.2d 884, 891 (1953) (citation and quotation marks omitted). \u201cAn agency can be proved generally, by any fact or circumstance with which the alleged principal can be connected and having a legitimate tendency to establish that the person in question was his agent for the performance of the act in controversy.\u201d Munn v. Haymount Rehabilitation & Nursing Center, Inc., 208 N.C. App. 632, 637-38, 704 S.E.2d 290, 295 (2010) (citation and quotation marks omitted).\nAn agency relationship can impose vicarious liability on a principal for the torts committed by an agent when he \u201cis acting within the line of his duty and exercising the functions of his employment.\u201d King v. Motley, 233 N.C. 42, 45, 62 S.E.2d 540, 543 (1950). \u201cIf the act of the employee was a means or method of doing that which he was employed to do, though the act be unlawful and unauthorized or even forbidden, the employer is hable for the resulting injury....\u201d Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66, 153 S.E.2d 804, 808 (1967). Here, the claims against Jack \u2014 the purported agent \u2014 were fraud, breach of fiduciary duty, and unfair and deceptive business practices.\nPlaintiffs argue that Corinna made Jack her agent by writing and signing the following letter, dated 30 November 2001 and entitled \u201cRE: CORPORATE RESOLUTION\u201d:\nDear Jack:\nAs of this date, November 30, 2001, please be advised that I am delegating responsibility and authority for making all corporate, financial, operational, and administrative decisions for the company to you.\nYou are free to delegate further in any area of the business to persons you decide are appropriate and qualified to insure the smooth and successful operation of the company.\nSincerely, \u25a0\n[signature]\nCorinna Freeman\nChairperson\nAlthough we agree that this letter and the other evidence could establish an agency relationship, plaintiffs misidentiiy the principal. This evidence, in the light most favorable to plaintiffs, shows that Corinna appointed Jack a general agent on behalf of \u201cthe company\u201d in her capacity as \u201cChairperson.\u201d He was empowered to malee \u201call corporate, financial, operational, and administrative decisions for the company.\u201d Nothing in the 2001 letter \u2014 and no other evidence presented at trial \u2014 indicates that Corinna appointed Jack as her personal agent or that she intended to empower him to act on her own behalf in any way other than as the corporate \u201cchairperson.\u201d If Jack was the corporation\u2019s agent, not Corinna\u2019s, then the corporation, not Corinna, would normally be liable for the torts committed within the scope of his duties. See Green I,_N.C. at_, 749 S.E.2d at 270 (\u201cThe general rule is that in the ordinary course of business, a corporation is treated as distinct from its shareholders.\u201d (citation and quotation marks omitted)); Holleman v. Aiken, 193 N.C. App. 484, 504, 668 S.E.2d 579, 592 (2008) (stating that \u201ca principal is liable for the torts of its agent which are committed within the scope of the agent\u2019s authority\u201d (citation and quotation marks omitted)).\nLegally, there is a distinction between Jack\u2019s actions on behalf of the corporation and his actions purportedly as Corinna\u2019s agent, and it appears that this is the distinction which the Supreme Court directed us to address:\nIn other words, if the trial court properly dismissed plaintiffs\u2019 agency claims, it is irrelevant whether Corinna exercised domination and control over the Piedmont companies. On the other hand, if the trial court erred in dismissing the agency claims, the question \u2022 remains whether plaintiffs may recover against Corinna on those claims through the piercing the corporate veil doctrine. Therefore, we reverse and remand to the Court of Appeals for a determination of whether the trial court erred in granting Corinna\u2019s motion for a directed verdict on plaintiffs\u2019 agency claims for fraud and breach of fiduciary duty.\nGreen I,_N.C. at_, 749 S.E.2d at 271.\nBecause the parties\u2019 original briefs failed to address this distinction, we ordered that the parties submit supplemental briefing to address the issues on remand from the Supreme Court. They did so, but plaintiffs made no argument that Corinna is liable for Jack\u2019s actions os a corporate agent through piercing the corporate veil, or on any other theory. It is not the duty of this Court to construct arguments for appellants. Foster v. Crandell, 181 N.C. App. 152, 162, 638 S.E.2d 526, 533, cert. and disc. rev. denied, 361 N.C. 567, 650 S.E.2d 602 (2007). Therefore, we address only the argument presented \u2014 that Jack was Corinna\u2019s personal agent empowered to act on her behalf. For the foregoing reasons, we conclude that there was insufficient evidence that Jack was Corinna\u2019s personal agent, acting under actual authority.\nPlaintiffs also argue that even if Jack did not have actual authority to act as Corinna\u2019s personal agent, he had apparent authority to do so. \u201cApparent authority is that authority which the principal has held the agent out as possessing or which he has permitted the agent to represent that he possesses.\u201d Pet, Inc. v. University of North Carolina, 72 N.C. App. 128, 135, 323 S.E.2d 745, 750 (1984) (citation, quotation marks, and ellipses omitted). Plaintiffs introduced no evidence that Corinna ever made any representations to them, let alone any representations that Jack had authority to act on her behalf. Plaintiffs failed to show that Corinna otherwise acted in such a way as to convey to plaintiffs the idea that Jack had authority to act on her behalf. Jack\u2019s out-of-court representations about his authority to act for Corinna are irrelevant. See Dailey v. Integon General Ins. Corp., 75 N.C. App. 387, 399, 331 S.E.2d 148, 156 (noting that \u201cthe general rule is that neither the fact nor the extent of an agency relationship can be proved by the out-of-court statements of an alleged agent.\u201d), disc. rev. denied, 314 N.C. 664, 336 S.E.2d 399 (1985); Munn, 208 N.C. App. at 639, 704 S.E.2d at 296 (\u201cThe scope of an agent\u2019s apparent authority is determined not by the agent\u2019s own representations but by the manifestations of authority which the principal accords to him.\u201d (citation and quotation marks omitted)); State v. Sturgill, 121 N.C. App. 629, 638, 469 S.E.2d 557, 563 (1996) (\u201cApparent authority arises when a principal intentionally or by want of ordinary care causes or allows a third person to believe that an agent possesses authority to act for that principal.\u201d (citation, quotation marks, and brackets omitted) (emphasis added)). Therefore, there was insufficient evidence to establish Jack\u2019s apparent authority to act as a personal agent of Corinna.\nWe conclude that plaintiffs failed to present sufficient evidence, taken in the light most favorable to plaintiffs, that Jack was Corinna\u2019s personal agent empowered with either actual or apparent authority to sustain a jury verdict in their favor on that theory. Therefore, we hold that the trial court did not err in granting defendant Corinna\u2019s motion for directed verdict on the theory of agency.\nIII. Exclusion of Deposition\nPlaintiffs further argue that the trial court erred in excluding the deposition of Corinna that they attempted to introduce at trial under N.C. Gen. Stat. \u00a7 1A-1, Rule 32. Defendant Corinna objected on the basis that she was present and available to testify, and that therefore reading the deposition was unnecessary.\nUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 32(a)(3) (2007), \u201c[t]he deposition of a party . . . may be used by an adverse party for any purpose, whether or not the deponent testifies at the trial or hearing.\u201d Here, the trial court excluded the portions of Corinna\u2019s deposition offered by plaintiffs because\n[i]t just stands in the face of reason that you would have three co-defendants sitting here in court and that you could get their testimony just by introducing the deposition, with no attempt at that point for them to be cross examined.\nIt further sustained the objection under Rule 403 on the basis that the evidence would confuse the jury, reasoning that there were multiple defendants and that the jury might be tempted to use one defendant\u2019s admissions against the others.\nFirst, we conclude that the trial court\u2019s interpretation of Rule 32 was error. The plain language of the rule permits the use of a deposition of a party by an adverse party for any purpose, regardless of \u201cwhether or not the deponent testifies.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 32(a)(3). Indeed, this Court has specifically held that a party\u2019s presence at trial is not a reason to prevent an adverse party from introducing her deposition. Stilwell v. Walden, 70 N.C. App. 643, 547-48, 320 S.E.2d 329, 332 (1984). Therefore, the presence of defendant at trial or her availability as a witness is wholly immaterial to the issue of whether her deposition may be used against her.\nMoreover, for purposes of Rule 32, it is irrelevant that there were multiple defendants at trial. Rule 32(a) specifically permits the use of a deposition \u201cagainst any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 32(a); see Floyd v. McGill, 156 N.C. App. 29, 40, 575 S.E.2d 789, 796 (holding that admission of one defendant\u2019s deposition was proper where she was present at the deposition, even though she was represented at the time by the same counsel as her co-defendants), disc. rev. denied, 357 N.C. 163, 580 S.E.2d 364 (2003). There is no dispute that all of the co-defendants received adequate notice that her deposition would be taken and that all were represented at the taking of Corinna\u2019s deposition. Cf. Craig v. Kessig, 36 N.C. App. 389, 400, 244 S.E.2d 721, 727 (1978) (noting that a party\u2019s deposition can be used against him, even if his co-defendants were not present when the deposition was taken, and that were such a situation to arise in a jury trial the proper remedy would be appropriate limiting instructions), aff'd, 297 N.C. 32, 253 S.E.2d 264 (1979). We conclude that the trial court erred in excluding the proffered portions of Corinna\u2019s deposition under Rule 32. Further, we note, as there was some confusion on this point at trial, that \u201cthere is no distinction between a discovery deposition and a trial deposition!] under Rule 32.\u201d Robertson v. Nelson, 116 N.C. App. 324, 327, 447 S.E.2d 488, 490 (1994). If the trial court had allowed plaintiff to use Corinna\u2019s deposition testimony, defendant would have had the opportunity to raise objections to portions of the deposition testimony and the trial court could have ruled upon those objections.\nSecond, the trial court abused its discretion in excluding the offered portions of Corinna\u2019s deposition under the North Carolina Rules of Evidence, Rule 403. Under Rule 403, otherwise admissible evidence may nonetheless be excluded if its probative value \u201cis substantially outweighed by the danger of unfair prejudice [or] confusion of the issues.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2007). We review a trial court\u2019s application of Rule 403 for an abuse of discretion. Warren v. Jackson, 125 N.C. App. 96, 99, 479 S.E.2d 278, 280, disc. rev. denied, 345 N.C. 760, 760, 485 S.E.2d 310, 310-11 (1997). \u201cAn abuse of discretion occurs when the trial court\u2019s decision was unsupported by reason and could not have been a result of competent inquiry.\u201d Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 101, 678 S.E.2d 757, 761 (2009) (citation and quotation marks omitted).\nHere, the only possible confusion raised by defendants was the risk that the jury might use the information contained in one defendant\u2019s deposition against the other two defendants. The questions and answers in the portions of Corinna\u2019s deposition offered by plaintiffs all concerned her role in the Piedmont companies, her awareness of Jack\u2019s actions, and her training and experience in the cargo aviation business. We fail to see any possible reason that admission of this evidence would lead the jury to confuse the issues.\nThe only possible confusion raised by defendants was that the evidence given by Corinna might be used against her co-defendants.' But it is common sense that this is exactly the reason that the plaintiffs would want to use the evidence, and such use is explicitly permitted under Rule 32 when the co-defendant was represented at the deposition which an adverse party seeks to admit. See N.C. Gen. Stat. \u00a7 1A-1, Rule 32(a); Craig, 36 N.C. App. at 400, 244 S.E.2d at 727. It is clear that the trial court made its decision under a misapprehension of the applicable law and not based upon the actual content of the portions of the deposition which plaintiffs sought to admit. Therefore, we conclude that the trial court abused its discretion in excluding the proffered portions of Corinna\u2019s deposition under Rule 403.\nHaving concluded that the trial court erred in excluding Corinna\u2019s deposition, we must consider whether this error requires reversal. \u201cThe exclusion of evidence constitutes reversible error only if the appellant shows that a different result would have likely ensued had the error not occurred. The burden is on the appellant not only to show error, but to show prejudicial error.\u201d Latta v. Rainey, 202 N.C. App. 587, 603, 689 S.E.2d 898, 911 (2010) (citations, quotation marks, and ellipses omitted). We hold that plaintiffs have failed to show that the trial court\u2019s error here was prejudicial.\nFirst, the deposition testimony does not change the fact that \u201c[b]ecause plaintiffs never became shareholders, Corinna could not have owed them, as shareholders, fiduciary duties.\u201d Green, _N.C. at_, 749 S.E.2d at 269. Second, Comma\u2019s deposition does not indicate that she had any contact with plaintiffs or that \u201cthey relied on or tmsted in her when they chose to invest in the Piedmont companies.\u201d Id. Therefore, the inclusion of the deposition would have had no effect on plaintiffs\u2019 breach of fiduciary duty claims. See id. Finally, the inclusion of this deposition would have had no effect on the agency theory of liability, given our discussion above. Nothing in the deposition indicates that Corinna authorized Jack to act on her behalf in a personal capacity. The deposition does include additional evidence that Corinna continued to be involved in the Piedmont companies after her 2001 letter and that she delegated to Jack all of her corporate responsibilities. But this evidence has no bearing on her intent to make Jack a personal agent.\nWe conclude that plaintiffs have failed to show \u201cthat a different result would have likely ensued had the error not occurred.\u201d Latta, 202 N.C. App. at 603, 689 S.E.2d at 911. As a result, we hold that although the trial court erred in excluding Comma\u2019s deposition under Rule 32 of the North Carolina Rules of Civil Procedure and under Rule 403 of the North Carolina Rules of Evidence, that error was not prejudicial.\nIV. Conclusion\nFor the foregoing reasons, we affirm the trial court\u2019s order allowing defendant Corinna Freeman\u2019s motion for directed verdict on the issue of agency. We further conclude that plaintiffs have failed to show that the trial court\u2019s error in excluding Comma's deposition was prejudicial.\nAFFIRMED; NO PREJUDICIAL ERROR.\nJudges BRYANT and CALABRIA concur.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Thomas B. Kobrin, for plaintiff-appellants.",
      "Forman Rossabi Black, P.A., by T. Keith Black, Gavin J. Reardon, and Elizabeth Klein, for defendant-appellant Corinna Freeman."
    ],
    "corrections": "",
    "head_matter": "MICHAEL A. GREEN and DANIEL J. GREEN, Plaintiffs v. JACK L. FREEMAN, JR., CORINNA W. FREEMAN, PIEDMONT CAPITAL HOLDING OF NC, INC., PIEDMONT EXPRESS AIRWAYS, INC., PIEDMONT SOUTHERN AIR FREIGHT, INC., AND NAT GROUP, INC., Defendants v. LAWRENCE J. D\u2019AMELIO, III, Third-Party Defendant\nNo. COA11-548-2\nFiled 1 April 2014\n1. Agency \u2014 directed verdict \u2014 relationship between corporation and other parties\nA trial court order directing a verdict on the issue of agency was affirmed where, even assuming that a letter created an agency relationship, it was an agency relationship between certain companies and defendant Jack Freeman (Jack), not between defendant Corinna Freeman (Corinna) and Jack. Although it may have been proper to pierce the corporate veil, plaintiffs only argued that Jack was Corinna\u2019s personal agent, not that he was an agent of the corporation.\n2. Agency \u2014 apparent authority \u2014 evidence not sufficient\nThere was insufficient evidence to establish the apparent authority of defendant Jack Freeman (Jack) to act as a personal agent of defendant Corinna Freeman (Corinna). Plaintiffs introduced no evidence that Corinna ever made any representations to them, let alone any representations that Jack had authority to act on her behalf; plaintiffs failed to show that Corinna otherwise acted in such a way as to convey to them the idea that Jack had authority to act on her behalf; and Jack\u2019s out-of-court representations about his authority to act for Corinna are irrelevant.\n3. Evidence \u2014 use of deposition \u2014 witness present and able to testily\nThe trial court erred by excluding the proffered portions of a deposition where Defendant Corinna Freeman had objected on the basis that she was present and available to testify. The plain language of N.C.G.S. \u00a7 1A-1, Rule 32 permits the use of the deposition of a party by an adverse party for any purpose, regardless of whether or not the deponent testifies. Moreover, for purposes of Rule 32, it is irrelevant that there were multiple defendants at trial.\n4. Evidence \u2014 deposition\u2014confusion\u2014misapprehension of law\nThe trial court abused its discretion in excluding the offered portions of a deposition as confusing. The only possible confusion raised by defendants was that the evidence given might have been used against defendant Corinna Freeman by co-defendants, but such use is explicitly permitted under N.C.G.S. \u00a7 1A-1, Rule 32 when the co-defendant was represented at the deposition which an adverse party seeks to admit. It was clear that the trial court made its decision under a misapprehension of the applicable law and not based upon the actual content of the portions of the deposition which plaintiffs sought to admit.\n5. Evidence \u2014 deposition\u2014exclusion not prejudicial\nAlthough the trial court erred by excluding a deposition under Rule 32 of the North Carolina Rules of Civil Procedure and under Rule 403 of the North Carolina Rules of Evidence in an action involving agency, that error was not prejudicial because the inclusion of this deposition would have had no effect on the agency theory of liability.\nAppeal by defendant Corinna Freeman and cross-appeal by plaintiffs from order entered 8 July 2010 and judgment entered 2 June 2010 and by Judge Edwin G. Wilson, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 16 November 2011. By opinion entered 4 September 2012, this Court affirmed the trial court\u2019s orders. By opinion entered 8 November 2013, the North Carolina Supreme Court reversed this Court\u2019s opinion and remanded for consideration of additional issues.\nThomas B. Kobrin, for plaintiff-appellants.\nForman Rossabi Black, P.A., by T. Keith Black, Gavin J. Reardon, and Elizabeth Klein, for defendant-appellant Corinna Freeman."
  },
  "file_name": "0109-01",
  "first_page_order": 119,
  "last_page_order": 128
}
