Converted WP file 050997-1

Appeal by defendant from judgment entered 29 December 2004 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 February 2006.

Weaver, Bennett & Bland, P.A., by Michael David Bland, for plaintiff-appellee.

Brown & Associates, PLLC, by J. Scott Hampton, for defendant- appellant.

    LEVINSON, Judge.

    Defendant (Electronic Services Mart, Inc., d/b/a RHAD Oncology Products) appeals from the trial court's entry of complete summary judgment in favor of plaintiff (Alex J. Sabo). We affirm.
    This case arises out of an alleged violation of N.C. Gen. Stat. § 95-25.6 of the North Carolina Wage and Hour Act. Plaintiff sought unpaid earned wages, expenses, and earned vacation pay. In support of his motion for summary judgment, plaintiff submitted his affidavit, along with defendant's sworn responses to plaintiff's requests for admissions. Plaintiff's verified complaint and affidavit established that (1) he was employed by defendantcorporation for two years as a salesman; (2) he provided valuable services to defendant for which plaintiff was entitled to sales commissions under an employment agreement; (3) defendant owed plaintiff $47,999.99 in earned wages, $3,692.30 in earned vacation pay, and $10,584.14 in expenses; and (4) defendant failed to pay plaintiff these wages/commissions even after repeated promises to do so. In his responses to requests for admissions, defendant admitted owing $47,999.99 for salary, wages and commissions, and an additional $10,584.14 in expenses, but denied owing plaintiff $3,692.30 for earned vacation pay. Defendant further admitted that plaintiff “made repeated demands . . . for payment of his salary, wages, earned vacation and commissions . . . [and] for payment of his un-reimbursed expenses.” At the hearing on summary judgment, plaintiff withdrew his claim for vacation pay. Defendant's answer to the complaint was unverified, and defendant did not submit any affidavits or other evidence at the hearing on summary judgment.
    The trial court awarded summary judgment in favor of plaintiff on all issues. The trial court's award of summary judgment read, in pertinent part:
    5.    The Defendant has failed to pay salary and commissions due the Plaintiff as required by N.C.G.S. § 95-25.6; and

    6.    The Defendant has presented no evidence of a good faith basis for its failure to pay Plaintiff's wages[.]

    The trial court ordered that plaintiff recover from defendant:
    1.    For wages in the amount of Forty Seven Thousand Nine Hundred Ninety Nine & 99/100 Dollars ($47,999.99) plus interest at the legal rate from May 19, 2004;
    2.    For expenses advanced in the amount of Ten Thousand Five Hundred Eighty Four & 14/100 Dollars ($10,584.14);
    3.    For liquidated damages pursuant to N.C.G.S. § 95-25.22(a1) in the amount of Forty Seven Thousand Nine Hundred Ninety Nine & 99/100 Dollars ($47,999.99); and
    4.    Costs of this action together with reasonable attorney fees in the amount of $2,385.00.
    From this judgment, defendant appeals, contending that the trial court erred by awarding summary judgment to plaintiff on the issue of liquidated damages. We disagree.
    The law governing a trial court's award of summary judgment is well established:
        Upon motion, summary judgment is appropriately entered where “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.” N.C.G.S. § 1A-1, Rule 56(c). . . . However, the party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact. In ruling on the motion, the court is to carefully scrutinize the moving party's papers and is to resolve all inferences against him.
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citations omitted). Once the moving party has met its initial burden on summary judgment, the burden shifts to the non-moving party to show “some material issue of fact does remain.” Dixie Chemical Corp. v. Edwards, 68 N.C. App. 714, 716, 315 S.E.2d 747, 750 (1984). Pursuant to Rule 56(e) of the North Carolina Rules of Civil Procedure, once the burden has shifted to the adverse party, the non-movant “may not rest upon the mereallegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2005).
    N.C. Gen. Stat. § 95-25.22 (2005) provides in pertinent part:
    (a)    Any employer who violates the provisions of . . . G.S. 95-25.6 through 95-25.12 (Wage Payment) shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, their unpaid overtime compensation, or their unpaid amounts due under G.S. 95-25.6 through 95-25.12, as the case may be, plus interest at the legal rate set forth in G.S. 24-1, from the date each amount first came due.
    (a1)    In addition to the amounts awarded pursuant to subsection (a) of this section, the court shall award liquidated damages in an amount equal to the amount found to be due as provided in subsection (a) of this section, provided that if the employer shows to the satisfaction of the court that the act or omission constituting the violation was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this Article, the court may, in its discretion, award no liquidated damages or may award any amount of liquidated damages not exceeding the amount found due as provided in subsection (a) of this section.
    In the recent case of Arndt v. First Union Nat. Bank, __ N.C. App. __, __, 613 S.E.2d 274, 283 (2005), this Court stated:
        [T]he employer bears the burden to show liquidated damages should not be imposed. “Even if an employer shows that it acted in good faith, and with the belief that its action did not constitute a violation of the [NCWHA,] the trial court may still, in its discretion, award liquidated damages in any amount up to the amount due for unpaid wages.” If the employer is unable to make such ashowing, the trial court is without discretion and must award liquidated damages.

Id. (quoting Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 14- 15, 454 S.E.2d 278, 285 (1995)) (emphasis added).
    In the instant case, defendant admitted owing plaintiff $47,999.99 for salary, wages, and commissions, and $10,584.14 in unreimbursed expenses. Defendant does not dispute the trial court's award of summary judgment in favor of plaintiff on these issues. Defendant challenges the award of summary judgment on the sole issue of liquidated damages. At the summary judgment hearing, there was no evidence of any good faith on the part of defendant for its failure to pay plaintiff's wages. Pursuant to G.S. § 95- 25.22, once a violation of any one of the provisions of G.S. §§ 95- 25.6 through 95-25.12 was established, the trial court was required to award liquidated damages absent a showing of good faith by defendant. Accordingly, the trial court did not err in granting summary judgment in favor of plaintiff on the issue of liquidated damages. Defendant's assignments of error are overruled.
    Affirmed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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