An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
WAYNE WESTERHOLD and
No. 02 CVS 12706
DESIGNER'S WAY, INC.,
SUPERIOR PAINTING SERVICES,
INC., MICHAEL WADE WARREN, and
KRISTINA MARIE ELLIS,
Appeal by plaintiffs from judgment entered 3 July 2003 by
Judge Ripley E. Rand in Wake County Superior Court. Heard in the
Court of Appeals 3 November 2004.
Tharrington Smith, LLP, by Roger W. Smith, Jr., for plaintiff-
Smith Law Offices, P.C., by Robert E. Smith, for Designer's
Way, Inc., defendant-appellee.
Bailey & Dixon, L.L.P., by Philip A. Collins, for Superior
Painting Services, Inc., defendant-appellee.
Wayne Westerhold and Cathy Westerhold (plaintiffs) appeal
the trial court order granting summary judgment in favor of
Designer's Way, Inc. (Designer's Way) and Superior Painting
Services, Inc. (Superior) (collectively defendants). For the
reasons discussed herein, we affirm the trial court's order.
The relevant facts and procedural history are as follows: In
April of 2000, plaintiffs contracted with Designer's Way torenovate plaintiffs' residence. Designer's Way then subcontracted
the painting of the interior of plaintiffs' house to Superior.
Robert Cournoyer (Cournoyer), President of Superior, assigned
employees, Michael Wade Warren (Warren) and Kristina Marie Ellis
(Ellis) to do the painting.
After Warren and Ellis had completed the painting job,
Cournoyer discovered that they had taken Superior's van without
permission. Several weeks after reporting this discovery to the
police, Cournoyer learned that coins and jewelry had been stolen
from plaintiffs' residence.
Plaintiffs filed this action alleging that Warren and Ellis
had stolen $10,000 worth of jewelry and coins from plaintiffs'
house. The complaint also alleged that Superior and Designer's Way
negligently hired, retained and supervised Ellis and Warren,
reciting that Ellis and Warren both have lengthy criminal records.
Superior and Designer's Way filed answers denying liability and
moved for summary judgment. On 3 July 2003, the trial court
entered an order granting summary judgment in favor of Superior and
Designer's Way. Plaintiffs voluntarily dismissed their claims
against Warren and Ellis. Plaintiffs appeal.
The dispositive issue on appeal is whether the trial court
erred in granting summary judgment in favor of defendants. As we
conclude that defendants are entitled to judgment as a matter of
law, we hold that the trial court correctly granted summary
judgment in favor of defendants.
Standard of Review
[T]he standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether the
moving party is entitled to a judgment as a matter of law.
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998). Summary judgment is appropriate when,
viewed in the light most favorable to the non-movant . . . 'the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show 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.' Id. (quoting N.C.
Gen. Stat. § 1A-1, Rule 56(c) (2003)). The party moving for
summary judgment must establish that no triable issue of material
fact exists 'by proving that an essential element of the opposing
party's claim is non-existent, 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.' DeWitt v. Eveready Battery Co., 355
N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (quoting Collingwood v.
G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427
On appeal, plaintiffs argue that a genuine issue of material
fact exists with respect to the negligent hiring, supervision and
retention of Warren and Ellis by defendant Superior. A claim for
negligent hiring, supervision and retention is recognized in North
Carolina when the plaintiff proves: (1) the specific negligent act on which the
action is founded . . . (2) incompetency, by
inherent unfitness or previous specific acts
of negligence, from which incompetency may be
inferred; and (3) either actual notice to the
master of such unfitness or bad habits, or
constructive notice, by showing that the
master could have known the facts had he used
ordinary care in oversight and supervision, .
. .; and (4) that the injury complained of
resulted from the incompetency proved.
Medlin v. Bass, 327 N.C. 587, 591, 398 S.E.2d 460, 462 (quotation
marks and citations omitted).
The materials submitted by the parties and considered by the
trial court prior to its allowing the motions for summary judgment
included the deposition and affidavit of Cournoyer. In his
deposition and affidavit, Cournoyer indicated the following:
Cournoyer had hired Warren and Ellis approximately five weeks
before they were assigned to paint plaintiffs' home. Warren had
telephoned seeking a job and asked if work was available for Ellis
as well. Warren told Cournoyer that Ellis was a good painter whom
he had personally trained. Cournoyer was familiar with Warren's
work from a project a year before involving approximately eighteen
Blockbuster stores. He further indicated that Warren was a
reliable employee and did superb work.
Cournoyer then assigned a small project to Warren and Ellis.
Cournoyer indicated that Ellis's work on the project was
outstanding and the project was finished a day early. Several days
after starting work for Superior, Warren and Ellis filled out
written application forms which requested basic information
including date of birth, address, and job references. Cournoyercontacted a builder listed as a reference on Ellis's application
and received a favorable report. After completing the small
project, Warren and Ellis worked on several other projects together
including repainting the interior of a fully stocked department
store. Cournoyer did not receive any complaints about Warren and
Ellis's work on these projects.
Evidence before the trial court showed that Warren and Ellis
have lengthy criminal records including criminal convictions for
felony theft crimes. However, Cournoyer stated in his deposition
that he had no knowledge regarding any criminal background or
criminal disposition that Warren or Ellis might have. Cournoyer
stated in his affidavit that when hiring Warren and Ellis, he
followed hiring practices that are customary among other painting
companies. Cournoyer also stated in his deposition that he had
received no information or complaints regarding any criminal
misconduct, criminal disposition, or any wrongdoing by either
Warren or Ellis. Cournoyer did indicate that at the time he hired
Warren, he was aware that Warren's driver's license had been
revoked. Cournoyer also indicated, however, that occasionally in
the past he had hired painters without driver's licenses and had
never had any problems with them. Finally, Cournoyer stated in his
affidavit that he had never associated a revoked driver's license
with a criminal disposition.
Defendant Superior argues that this Court is bound by our
holding in Moricle v. Pilkington, 120 N.C. App. 383, 462 S.E.2d 531
(1995), to uphold the trial court's grant of summary judgment. Weagree. The evidence presented before the trial court in Moricle
was summarized by this Court as follows:
[D]efendant followed hiring practices that are
customary among other plumbing companies; that
Brooks is defendant's nephew and defendant has
known Brooks since Brooks was a child, and
defendant had no reason to believe Brooks was
unfit or incompetent to work for defendant;
that defendant conducted a personal interview
with Pilkington during which he inquired into
Pilkington's criminal record; that Pilkington
assured defendant that he did not have a
record; that defendant did a reference check
on Pilkington with W. P. Rose of W. P. Rose
Plumbing, a licensed plumber whom defendant
personally had known for years and knows to be
a reputable plumber; and that W. P. Rose
informed defendant that during the two years
Pilkington worked for him, he did not receive
any complaints concerning Pilkington's work or
Id. at 386, 462 S.E.2d at 533. The Moricle Court also noted that
the defendant was under no duty to do a criminal background check
when hiring his employees and that there is a presumption that an
employer uses due care in hiring its employees. Id. at 387, 462
S.E.2d at 534. Thus, the Court upheld the trial court's grant of
summary judgment for the defendant. Id.
After careful review of the record and briefs, we conclude
that we are bound by Moricle to uphold the trial court's grant of
summary judgment for defendant Superior. As in Moricle, the facts
presented in support of the motion for summary judgment do not show
that [defendant Superior] knew or reasonably could have known that
[Warren or Ellis] was dishonest. Id. at 387, 462 S.E.2d at 533.
Therefore, an essential element of the claim for negligent hiringor retention is absent. Id. We affirm the trial court's grant
of summary judgment in favor of Superior.
Plaintiffs also argue that the trial court erred in entering
summary judgment in favor of defendant Designer's Way. We
disagree. We conclude that this Court is bound by Moricle
that Designers' Way, like Superior, had no duty to conduct criminal
background checks of Warren and Ellis. Id.
argument that Designer's Way negligently hired or retained Warren
and Ellis in that Designers' Way had actual or constructive
knowledge of Warren and Ellis's unfitness for employment must fail.
Plaintiffs also argue that Designer's Way negligently
supervised Warren and Ellis, asserting that had Warren and Ellis
been properly supervised, the theft of plaintiffs' property could
have been prevented. In B.B. Walker Co. v. Burns International
this Court addressed a plaintiff's claim of
negligent supervision where security guards employed by the
defendant had stolen the plaintiff's property. B.B. Walker Co. v.
Burns International Security Services
, 108 N.C. App. 562, 424
S.E.2d 172 (1993), disc. review denied
, 333 N.C. 536, 429 S.E.2d
552 (1993). The Court held that the plaintiff's argument
amount[ed] to no more than speculation that because [the]
defendant failed to adequately [supervise the employees], it was
424 S.E.2d at 175. In the instant case,
as in B.B. Walker
, [w]e see no showing . . . that defendant
[Designer's Way] should have reasonably foreseen that moresupervision was required to prevent these deliberate criminal acts
which were the cause of [plaintiffs'] loss. Id.
As we conclude that plaintiffs did not present a forecast of
evidence tending to show that defendants breached any duty owed to
plaintiffs or that a genuine issue of material fact exists in this
matter, we affirm the trial court's order of summary judgment in
favor of defendants.
For the reasons stated herein, the trial court's order
granting summary judgment for defendants is affirmed.
Judges McGEE and
Report per Rule 30(e).
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