Builder Mart of America v First Union, 156 NC App 697 (02-446) 03/18/2003

Appeal by plaintiffs from order entered 4 February 2000 and order entered 2 January 2002 and appeal by defendant First Union National Bank from order entered 2 January 2002 by Judge Sanford L. Steelman, Jr. in Superior Court, Stanly County. Heard in the Court of Appeals 30 January 2003.

Dozier, Miller, Pollard & Murphy, LLP, by W. Joseph Dozier, Jr. and John C. Nipp, for plaintiffs-appellants.

Hamilton, Gaskins, Fay & Moon, PLLC, by Keith J. Merritt, for defendant-appellee.

    McGEE, Judge.

    Builder Mart of America, Inc. (BMA), Builder Mart of Albemarle, Inc. (Albemarle), and William T. Huckabee, III (Huckabee), hereafter referred to collectively as plaintiffs, filed suit against First Union Corporation and First Union National Bank (defendants) on 27 September 1999. Defendants filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on 30 November 1999. The trial court dismissed plaintiffs' claims forinterference with contractual relations, interference with corporate governance, and fraud and deceit in an order entered 4 February 2000. Defendants filed an amended answer and counterclaims dated 27 March 2000. Defendants filed a motion for summary judgment on plaintiffs' remaining claims of constructive fraud, breach of fiduciary duty, informal partnership, breach of covenant of good faith and fair dealing, unjust enrichment, and breach of contract on 19 November 2001. Plaintiffs filed a motion for summary judgment on defendants' counterclaims dated 21 November 2001.
    All claims against First Union Corporation were dismissed. In an order entered 2 January 2002, the trial court granted First Union National Bank's (defendant) motion for summary judgment on the remainder of plaintiffs' claims and dismissed with prejudice defendant's counterclaims. Plaintiffs appeal the 4 February 2000 order and the 2 January 2002 order. Defendant appeals the 2 January 2002 order.
    BMA was a wholesaler of building materials. Albemarle was a retailer and a customer of BMA. Huckabee was the president and sole shareholder of Albemarle.
    Brian MacKenzie, former president of BMA, stated in his affidavit that BMA had a security interest in Albemarle's collateral, which secured a loan that BMA had made to Albemarle and that was guaranteed by Huckabee. In January 1993, defendant approached BMA about subordinating BMA's security interest to defendant so that defendant could loan Albemarle working capital. MacKenzie stated that BMA would subordinate its security interest if defendant allowed BMA to participate in liquidation of Albemarle's inventory in the event Albemarle defaulted on the loan.     Leon McGee, senior vice president of defendant, stated in an affidavit that BMA agreed to subordinate its security interest to defendant in a letter to defendant dated 2 February 1993. BMA agreed to use "its best efforts to assist [defendant] to maximize the liquidation value of inventory and accounts receivable at [Albemarle] in the event a default [occurred] on [defendant's] Note." Albemarle and defendant entered into a promissory note and security agreement for $500,000 (the promissory note) on 4 February 1993, which Huckabee individually guaranteed.
    Albemarle, Huckabee, and defendant entered into extension agreements for repayment of the promissory note on 23 January 1995, 31 July 1995, and 10 April 1996. In a letter to defendant on 18 April 1996, BMA stated that "we stand ready to assist you in the disposition of inventory assets . . . so that both BMA and [defendant] can recover the funds advanced." Defendant notified BMA on 28 June 1996 that Albemarle was in default and that defendant would file suit if payment was not made by 8 July 1996. Defendant filed suit against Albemarle and Huckabee on 10 July 1996 to collect on the promissory note.
    An order of seizure in the claim and delivery action was entered allowing defendant to take possession of Albemarle's collateral. A meeting was held on 3 September 1996 between defendant and plaintiffs to discuss the liquidation of thecollateral. Scott Harkins (Harkins), BMA's credit manager, stated in his deposition that he attempted to secure assurances from defendant that BMA would be permitted to liquidate Albemarle's assets on behalf of the parties. Harkins stated that he "wanted to deliver the message that BMA was ready to stand on the agreement that we felt we had" with defendant. However, Harkins' offer was immediately rejected by defendant without any discussion. Albemarle, Huckabee, and defendant subsequently entered into a liquidation agreement in September 1996. BMA declined to be a party to the agreement.
    Pursuant to the liquidation agreement, Iron Horse Auction Company was hired to sell Albemarle's property that was secured as collateral. A public auction of the property was held on 30-31 October 1996 and resulted in net proceeds of $166,227.08. Defendant received net proceeds of $87,022.97 from collection of Albemarle's accounts receivable and $15,000.00 from the sale of uncollected accounts receivable. Defendant also foreclosed on the deed of trust that secured the loan, resulting in proceeds of $60,467.65. Notice of the sale of the collateral was given to plaintiffs, but they declined to bid at the public sale.
                        I.
    Plaintiffs first argue the trial court erred in dismissing their claim for breach of contract in that there was an issue of material fact that a contract existed to allow BMA to liquidate Albemarle's collateral and that defendant breached that contract.
            Summary judgment should be rendered only when the pleadings, depositions, answers tointerrogatories, admissions, and affidavits disclose no genuine issue of material fact entitling the moving party to judgment as a matter of law. If an issue of material fact exists, then the trial court should not grant summary judgment. The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

Thomco Realty, Inc. v. Helms, 107 N.C. App. 224, 226, 418 S.E.2d 834, 835-36, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992) (citations omitted).
        "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim."

Id. at 228, 418 S.E.2d at 837 (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).     "A contract is 'an agreement, upon sufficient consideration, to do or not to do a particular thing.'" Overall Co. v. Holmes, 186 N.C. 428, 431, 119 S.E. 817, 818 (1923) (quoting 2 W. Blackstone, Commentaries 442). The parties to a contract must have a meeting of the minds on all essential elements of the agreement in order to have a valid contract. Chappell v. Roth, 353 N.C. 690, 692, 548 S.E.2d 499, 50O, rehearing denied, 354 N.C. 75, 553 S.E.2d 36 (2001). "[A] contract will not be held unenforceable because of uncertainty if the intent of the parties can be determined from the language used, construed with reference to the circumstances surrounding the making of the contract, and its terms reduced to a reasonable certainty." Brawley v. Brawley, 87 N.C. App. 545, 549,361 S.E.2d 759, 762 (1987), disc. review denied, 321 N.C. 471, 364 S.E.2d 918 (1988).
    In January 1993, BMA and defendant met to discuss subordination of BMA's security interest in Albemarle's collateral to defendant's interest. During the meeting, MacKenzie stated that BMA "would not agree to subordinate unless BMA could be assured that, in the event of liquidation, BMA would be allowed to sell the inventory and collect the accounts receivable." MacKenzie stated later in his affidavit that, "I then told [defendant] that BMA would subordinate if [defendant] agreed that BMA would be allowed to participate in the liquidation of the inventory and accounts receivable if that became necessary. [Defendant] agreed." At defendant's request, this oral agreement was memorialized in a letter from MacKenzie to defendant on 2 February 1993. The letter stated that "BMA agrees to its best efforts to assist [defendant] to maximize the liquidation value of inventory and accounts receivable at [Albemarle], in the event a default occurs on [defendant's] Note."     The evidence in the record indicates that the agreement between BMA and defendant was to give BMA the opportunity to participate in the liquidation of Albemarle's collateral in the event of a default. The evidence also indicates that BMA contemplated a different contract than that manifested in BMA's letter and as understood by defendant. The evidence in the record fails to show a meeting of the minds between the parties to allow BMA exclusive rights to liquidate Albemarle's collateral. The intent of the alleged contract, as argued by plaintiffs, cannotbe discerned from the language of the agreement or the surrounding circumstances with reasonable certainty. Therefore, the terms of the agreement cannot be construed to render the contract valid. A review of the evidence shows there is no genuine issue of material fact regarding the existence of an enforceable contract between BMA and defendant to permit BMA to exclusively liquidate Albemarle's collateral. This assignment of error is without merit. Since the record demonstrates no evidence of a contract, we decline to address plaintiffs' arguments regarding defendant's affirmative defenses.
                        II.
    Plaintiffs next argue the trial court erred in granting summary judgment for defendant on the claim of unjust enrichment. Plaintiffs contend that defendant was unjustly enriched by seizing and selling collateral valued at $900,000 more than the value of the debt to be satisfied. Plaintiffs argue they are entitled to restitution in the event that no express contract is found to exist.
        In order to establish a claim for unjust enrichment, a party must have conferred a benefit on the other party. The benefit must not have been conferred officiously, that is it must not be conferred by an interference in the affairs of the other party in a manner that is not justified in the circumstances. The benefit must not be gratuitous and it must be measurable.

Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556, rehearing denied, 323 N.C. 370, 373 S.E.2d 540 (1988). In order to recover for unjust enrichment, a plaintiff must show: "(1) that serviceswere rendered to [the defendant]; (2) that the services were knowingly and voluntarily accepted; and (3) that the services were not given gratuitously." Clark Trucking of Hope Mills v. Lee Paving Co., 109 N.C. App. 71, 74, 426 S.E.2d 288, 289, disc. review denied, 333 N.C. 790, 431 S.E.2d 21 (1993).
    In the case before us, there is no evidence in the record showing that defendant accepted services rendered by plaintiffs. BMA offered its best efforts in selling the collateral, but it did not participate in the liquidation sale. Accordingly, plaintiffs have no claim for restitution and defendant was entitled to summary judgment. This assignment of error is without merit.
                        III.
    Plaintiffs next argue the trial court erred in granting summary judgment for defendant on plaintiffs' claims of constructive fraud and breach of fiduciary duty. Plaintiffs contend that defendant committed constructive fraud and violated a fiduciary relationship between the parties when defendant unilaterally sold the collateral. "In order to prove constructive fraud, plaintiff must prove (1) a relation of trust and confidence, and (2) consummation of a transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff." Lowry v. Lowry, 99 N.C. App. 246, 254, 393 S.E.2d 141, 146 (1990). Plaintiffs must show the existence of a fiduciary duty and a breach of that duty. Keener Lumber Co. v. Perry, 149 N.C. App. 19, 28, 560 S.E.2d 817, 823, disc. review denied, 356 N.C. 164, 568 S.E.2d 196 (2002). A fiduciary relationship "exists inall cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence." Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931).
    There is no evidence in the record that shows that a special confidence or trust existed between plaintiffs and defendant. Defendant took possession of the collateral and sold it according to the liquidation agreement after Albemarle defaulted on its loan. The evidence indicates that the liquidation agreement was reached at arm's-length and there is no evidence that defendant took advantage of plaintiffs. There is a conclusive presumption of commercial reasonableness when a secured creditor gives notice and disposes of collateral at a public sale according to N.C. Gen. Stat. § 25-9-601 et seq. Gregory Poole Equipment Co. v. Murray, 105 N.C. App. 642, 648, 414 S.E.2d 563, 567 (1992); Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 721-22, 329 S.E.2d 728, 730 (1985).
        Notice of sale allows those persons with an interest in the collateral to protect their "interest in the collateral by paying the debt, finding a buyer, or being present at the sale to bid, so that the collateral is not sacrificed by a sale at less than its true value."

Gregory Poole Equipment Co., 105 N.C. App. at 647, 414 S.E.2d at 566-67 (quoting Hodges v. Norton, 29 N.C. App. 193, 197, 223 S.E.2d 848, 850 (1976)).
    BMA was afforded the opportunity to participate in the liquidation process but declined to be a party to the liquidationagreement. Additionally, defendant conducted a public sale pursuant to N.C. Gen. Stat. § 15-9-601 et seq. and gave proper notice thereof, thus establishing a presumption of commercial reasonableness that plaintiffs failed to rebut. Defendant was entitled to summary judgment because there was no issue of material fact on these issues. This assignment of error is without merit.
                        IV.
    Finally, plaintiffs argue the trial court erred in granting summary judgment for defendant on the issue of breach of an implied partnership. Plaintiffs contend BMA and defendant pursued a joint business venture by collectively agreeing to permit BMA to sell the collateral in exchange for subordinating BMA's security interest in Albemarle's collateral. In order to establish a joint venture or implied partnership, "'there must be (1) an agreement, express or implied, to carry out a single business venture with joint sharing of profits, and (2) an equal right of control of the means employed to carry out the venture.'" Rhoney v. Fele, 134 N.C. App. 614, 620, 518 S.E.2d 536, 541 (1999) (quoting Edwards v. Bank, 39 N.C. App. 261, 275, 250 S.E.2d 651, 661 (1979)), disc. review denied, 351 N.C. 360, 542 S.E.2d 217 (2000). "[C]o-ownership and sharing of any actual profits are indispensable requisites for a partnership." Wilder v. Hobson, 101 N.C. App. 199, 202, 398 S.E.2d 625, 627 (1990).
    We have already held that the record lacks evidence of an agreement between plaintiffs and defendant to permit BMA to sell Albemarle's collateral. While the evidence indicates that theparties agreed that BMA could participate in the liquidation, there is no evidence in the record that BMA had an equal right of control over the collateral. The letter memorializing the agreement between BMA and defendant states that "BMA acknowledges that it currently holds no consignment interest in inventory collateral (or proceeds). BMA agrees that it shall not hold any consignment interest in any [Albemarle] inventory without the prior written consent of [defendant]." There is no evidence in the record that defendant gave BMA consent to hold a consignment interest or other control over the property. There is no issue of material fact regarding the issue of a joint venture or implied partnership and defendant was entitled to summary judgment. This assignment of error is without merit.
    Plaintiffs also have failed to brief their assignments of error regarding breach of covenant of good faith and fair dealing, the trial court's denial of plaintiffs' motion to amend, and plaintiffs' claims for interference with contractual relations, interference with corporate governance, and fraud and deceit. Therefore, these assignments of error are deemed abandoned. N.C. R. App. P. 28(a).
    Defendant cross-assigned error to the trial court's granting summary judgment to plaintiffs on defendant's counterclaims. Defendant concedes that the basis of its counterclaims exists only if plaintiffs' claims exist. Defendant also stated during oral argument before this Court that it would concede the appeal of its counterclaims if this Court upheld summary judgment of plaintiffs'claims. Accordingly, we decline to address defendant's cross- assignment of error.
    Affirmed.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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