{ "id": 8523435, "name": "DENNIS D. DAILY v. MANN MEDIA, INC.", "name_abbreviation": "Daily v. Mann Media, Inc.", "decision_date": "1989-10-03", "docket_number": "No. 8818SC1307", "first_page": "746", "last_page": "750", "citations": [ { "type": "official", "cite": "95 N.C. App. 746" } ], "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": "257 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "93", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554539 ], "year": 1979, "pin_cites": [ { "page": "383", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0380-01" ] }, { "cite": "214 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "284-86" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555114 ], "year": 1975, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0522-01" ] }, { "cite": "111 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "844", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "251 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626814 ], "year": 1960, "pin_cites": [ { "page": "645", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0642-01" ] }, { "cite": "249 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569197, 8569107, 8569141, 8569020, 8569054 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0735-05", "/nc/295/0735-03", "/nc/295/0735-04", "/nc/295/0735-01", "/nc/295/0735-02" ] }, { "cite": "248 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553539 ], "year": 1978, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0310-01" ] } ], "analysis": { "cardinality": 462, "char_count": 9159, "ocr_confidence": 0.744, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7518646840028125 }, "sha256": "8b4f89b5ac15e481170fe3bc59944f2e071fa433b7ef101dfa9ca8fa6d17baf0", "simhash": "1:fce34d735d2e3194", "word_count": 1460 }, "last_updated": "2023-07-14T18:25:49.576177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and Cozort concur." ], "parties": [ "DENNIS D. DAILY v. MANN MEDIA, INC." ], "opinions": [ { "text": "GREENE, Judge.\nPursuant to a jury verdict, the trial court entered a judgment for plaintiff in the amount of $114,156. Defendant appeals.\nIn this civil action, plaintiff alleged and defendant denied that defendant employed plaintiff and that \u201cit was agreed that plaintiff would be paid the sum of one hundred thousand dollars ($100,000) as severance pay upon the termination of his employment at the request of defendant Mann.\u201d The complaint incorporated a letter of agreement attached to the complaint as an exhibit, which contained the following provision: \u201cThe intention of both parties is to enter into a long-standing relationship. In the event [sic], the relationship ends at the request of Mr. Mann, a severance of $100,000 is to be paid.\u201d Defendant denied any contractual obligation in its answer, but alleged in the alternative a \u201cFIFTH DEFENSE.\u201d The \u201cFIFTH Defense\u201d set forth the affirmative defense that plaintiff was terminated for cause, pled in bar of plaintiffs action.\nThe answer was filed on 26 January 1987, and served by mail on plaintiff\u2019s attorney on 23 January 1987. The court conducted a pre-trial conference on 27 June 1988, the date of the trial. At that conference, plaintiff moved to strike defendant\u2019s \u201cFifth DEFENSE.\u201d The trial court allowed plaintiff\u2019s motion and ordered that defendant\u2019s Fifth Defense be stricken and that defendant could not offer evidence in support of defendant\u2019s Fifth Defense on the issue of whether plaintiff was terminated for cause.\nAt the pre-trial conference, plaintiff contended that the only issue for the jury was:\nDid the defendant contract with the plaintiff to pay the plaintiff severance pay of $100,000.00 as alleged in the complaint?\nThe defendant contended that the issues for the jury were:\n1. Did the defendant contract with the plaintiff to pay the plaintiff severance pay of $100,000.00 as alleged in the complaint?\n2. If so, was the plaintiffs employment terminated for cause?\nThe trial court submitted the single issue proposed by plaintiff and the jury answered the issue for plaintiff.\nThe only issue presented on this appeal is whether the trial court erred in striking defendant\u2019s \u201cFIFTH DEFENSE.\u201d Although defendant made four additional Assignments of Error, defendant failed to enumerate bases for error in the trial court\u2019s actions, and we will not consider these assignments on appeal. North Carolina Rules of Appellate Procedure, Rule 10(c) (1984).\nN.C.G.S. Sec. 1A-1, Rule 12(f) (1983) provides:\nMotion to strike \u2014 Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 30 days after the service of the pleading upon him or upon the judge\u2019s own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.\nWe first determine plaintiff\u2019s motion to strike was not timely filed. The motion was filed more than a year after service of the defendant\u2019s answer. Furthermore, plaintiff was permitted no responsive pleadings, as defendant\u2019s answer set forth no counterclaim, no cross-claim, no third-party complaint, nor defense of contributory negligence. N.C.G.S. Sec. 1A-1, Rule 7(a) (1983). Rule 12(f) requires that a motion to strike be filed within 30 days after service of the pleading if no responsive pleading is permitted. However, because the statute clearly states that the trial court may strike materials from the pleadings on its \u2018own initiative at any time,\u2019 we determine that the trial court\u2019s consideration of the motion was permissible despite the untimeliness of plaintiff\u2019s motion to strike. Accord 2A Moore\u2019s Federal Practice Sec. 12.21[1] at 12-165, 12-166 (2d ed. 1987).\nIn considering a motion to strike pleadings under Rule 12(f), \u201c[generally, well-pleaded facts are accepted as true . . . and matters outside the pleadings will not be considered . . .\u201d Id., Sec. 12.21[3] at 12-184 (1985). Rule 12(f) motions are \u201cviewed with disfavor and are infrequently granted.\u201d 5 C. Wright & A. Miller, Federal Practice and Procedure. Sec. 1380 p. 783 (1969). However, if it is clear that the pleading \u201chas no possible bearing upon the litigation^]\u201d the pleadings should be stricken. Shellhorn v. Brad Ragan, Inc., et al., 38 N.C. App. 310, 316, 248 S.E.2d 103, 108, rev. denied, 295 N.C. 735, 249 S.E.2d 804 (1978). \u201cIf there is any question as to whether an issue may arise, the motion should be denied.\u201d Id.\nWe first determine that defendant\u2019s \u201cFIFTH DEFENSE\u201d had \u2018no possible bearing upon the litigation.\u2019 Any answer to the single issue that plaintiff proposed and the trial court accepted resolved the dispute between these parties: whether they actually agreed to the provisions of the contract as alleged in the complaint. The issue was:\nDid the defendant contract with the plaintiff to pay the plaintiff severance pay of $100,000.00 as alleged in the complaint?\nEither of the answers to this question would totally resolve the controversy. A negative answer to the question would end the lawsuit in defendant\u2019s favor. An affirmative answer to the question would be a determination that plaintiff and defendant had agreed that plaintiff would be paid the sum of $100,000.00 upon termination of [plaintiff\u2019s] employment at the request of Mann.\nDefendant next contends that termination for cause vitiates an employer\u2019s obligation to pay severance payments to an employee, without regard to the employment contract terms. N.C.G.S. Sec. 1A-1, Rule 12(f) (a trial court may strike an \u201cinsufficient defense\u201d). We determine that defendant\u2019s defense of termination for cause is \u2018legally insufficient\u2019 in light of the terms of the agreement. A termination for cause, \u201cif founded in fact, would, except for the contract provisions, relieve the employer of any obligation to pay [severance].\u201d Briggs v. American & Efird Mills, Inc., 251 N.C. 642, 645, 111 S.E.2d 841, 844 (1960) (emphasis added). We find the facts of this case similar to those in First-Citizens Bank and Trust Co. v. Akelaitis, 25 N.C. App. 522, 525, 214 S.E.2d 281, 284-86 (1975). In that case, this court held that the trial court properly struck defendant\u2019s defense of plaintiff\u2019s failure to first pursue remedies against another. The court held that the defense was \u2018legally insufficient\u2019 when the terms of the guaranty agreement made defendant directly and unconditionally liable.\nThe language of the provision in this agreement is inclusive, clear and unambiguous and in no way intimates that plaintiff forfeited payment if the termination was for cause. When a contract is clear and unambiguous, we must \u201cgive effect to its terms, and we will not, under the guise of construction, insert what the parties elected to omit.\u201d Olive v. Williams, 42 N.C. App. 380, 383, 257 S.E.2d 90, 93 (1979) (citation omitted). Accordingly, this court will not insert into the agreement a \u2018termination for cause\u2019 provision. We note that the record indicates there was no dispute between the parties that plaintiff was terminated at the request of Bernard Mann, president of defendant corporation.\nAccordingly, the trial court committed no error in striking defendant\u2019s \u201cFIFTH Defense,\u201d on the grounds that the defense was irrelevant and immaterial, having \u2018no possible bearing upon the litigation,\u2019 and because the defense was legally insufficient.\nNo error.\nJudges JOHNSON and Cozort concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Bell, Davis & Pitt, P.A., by William Kearns Davis and J. Dennis Bailey, for plaintiff-appellee.", "Nichols, Caffrey, Hill, Evans & Murrelle, by William L. Stocks and Douglas E. Wright, for defendant-appellant." ], "corrections": "", "head_matter": "DENNIS D. DAILY v. MANN MEDIA, INC.\nNo. 8818SC1307\n(Filed 3 October 1989)\n1. Rules of Civil Procedure \u00a7 12\u2014 motion to strike defense untimely \u2014 consideration by trial court proper\nAlthough plaintiff\u2019s motion to strike defendant\u2019s defense, filed more than a year after service of the defendant\u2019s answer, was untimely, the trial court\u2019s consideration of the motion was permissible, since N.C.G.S. \u00a7 1A-1, Rule 12(f) provides that the trial court may strike material from the pleadings on its \u201cown initiative at any time.\u201d\n2. Master and Servant \u00a7 9\u2014 severance pay \u2014 defense of termination for cause \u2014 action not barred\nIn an action to recover severance pay provided for in the parties\u2019 employment agreement, the trial court did not err in striking defendant\u2019s defense that plaintiff was terminated for cause and his action was therefore barred since (1) the defense was irrelevant and immaterial, having no possible bearing upon the litigation, in that any answer to the first issue agreed to by the parties, whether defendant contracted with plaintiff to pay plaintiff severance pay of $100,000 as alleged in the complaint, would resolve the dispute between the parties; and (2) the defense was legally insufficient in that the terms of the parties\u2019 agreement in no way intimated that plaintiff forfeited payment if the termination was for cause.\nAPPEAL by defendant from Freeman (William HJ, Judge. Judgment filed 30 June 1988 in Superior Court, GUILFORD County. Heard in the Court of Appeals 6 June 1989.\nBell, Davis & Pitt, P.A., by William Kearns Davis and J. Dennis Bailey, for plaintiff-appellee.\nNichols, Caffrey, Hill, Evans & Murrelle, by William L. Stocks and Douglas E. Wright, for defendant-appellant." }, "file_name": "0746-01", "first_page_order": 774, "last_page_order": 778 }