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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
REBEKAH CHANTAY REVELS, Plaintiff, v. MISS AMERICA ORGANIZATION,
MISS NORTH CAROLINA PAGEANT ORGANIZATION, INC., ALAN CLOUSE,
BILLY DUNCAN, CHARLENE HAY, DOUG HUFF, TOM ROBERTS, DAVID CLEGG,
BEVERLY ADAMS, and CANDACE RUSSELL, Defendants
Filed: 20 March 2007
1. Contracts_beauty contest winner_franchise agreement_not
Plaintiff, a state beauty pageant winner who resigned her
position after the state pageant organization learned of the
existence of nude photographs of plaintiff, was not a third-party
beneficiary of the franchise agreement between the state and
national pageant organizations where plaintiff was not designated
as a beneficiary under the agreement and there was no evidence
that the agreement was executed for her benefit. A provision in
the franchise agreement that the national organization will
accept the winner of the state pageant as a contestant in the
national pageant did not establish an intent by the parties to
make plaintiff an intended beneficiary.
2. Contracts_state beauty contest winner_no implied contract
with national organization
Plaintiff, a state beauty pageant winner who resigned her
position after the state pageant organization became aware of the
existence of nude photographs of plaintiff, did not have a
contract implied in fact with the national pageant organization
where the national pageant organization took videos and pictures
of the contestants in the national pageant but took no videos or
pictures of plaintiff.
3. Agency_beauty pageant_state organization not agent of
A state beauty pageant organization did not sign a contract
with plaintiff as agent of the national pageant organization
under the franchise agreement between the two pageant
organizations, and plaintiff had no contract with the national
organization under the doctrine of respondeat superior, where the
national organization had no control over the day-to-day
operations or management of the state organization, and the
franchise agreement specifically stated that it did not create an
Appeal by plaintiff from order entered 15 July 2005 by Judge
Narley L. Cashwell in Wake County Superior Court. Heard in the
Court of Appeals 8 January 2007.
Barry Nakell for plaintiff appellant.
Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady
Richardson, Jr., for Miss America Organization defendant
Rebekah Revels (plaintiff) appeals the order of the trial
court granting summary judgment in favor of Miss America
Organization as to all claims.
This Court has previously summarized and set forth the facts
pertaining to the case at hand in its opinion issued in Revels v.
Miss Am. Org., 165 N.C. App. 181, 599 S.E.2d 54, disc. review
denied, 359 N.C. 191, 605 S.E.2d 153 (2004). Following the previous
appeal in which this Court affirmed the trial court's order denying
Miss America Organization's (MAO) amended motion to compel
arbitration on the grounds that no contract existed between MAO and
plaintiff, the trial court entered an order granting summary
judgment in favor of defendant. It is from that order plaintiff
Plaintiff contends that the trial court erred in granting
summary judgment in favor of defendant where there was a genuine
issue of material fact and defendants were not entitled to judgment
in their favor as a matter of law. Specifically, plaintiff contends that summary judgment was
improperly granted where there was sufficient evidence that she was
a third-party beneficiary under the franchise agreement between
defendants MAO and Miss North Carolina Pageant Organization
(MNCPO); that there was sufficient evidence that there was a
contract between plaintiff and MAO where MNCPO signed plaintiff's
contract as an agent for MAO; and further that there was sufficient
evidence of an implied contract between plaintiff and MAO.
Summary judgment should be granted if 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. Gen. Stat. § 1A-1, Rule 56(c)
(2005). A moving party has the burden of establishing the lack of
any triable issue of fact[,] and its supporting materials are
carefully scrutinized, with all inferences resolved against it.
Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976).
 Plaintiff contends on appeal that there was sufficient
evidence that she is a third-party beneficiary under the franchise
agreement between MAO and MNCPO to establish that there is a
genuine issue of material fact.
In order to assert rights as a third-party beneficiary under
the franchise agreement, plaintiff must show she was an intended
beneficiary of the contract. This Court has held that in order toestablish a claim as a third-party beneficiary, plaintiff must
(1) that a contract exists between two persons
or entities; (2) that the contract is valid
and enforceable; and (3) that the contract was
executed for the direct, and not incidental,
benefit of the [third party]. A person is a
direct beneficiary of the contract if the
contracting parties intended to confer a
legally enforceable benefit on that person. It
is not enough that the contract, in fact,
benefits the [third party], if, when the
contract was made, the contracting parties did
not intend it to benefit the [third party]
directly. In determining the intent of the
contracting parties, the court should
consider [the] circumstances surrounding the
transaction as well as the actual language of
the contract. 'When a third person seeks
enforcement of a contract made between other
parties, the contract must be construed
strictly against the party seeking
Holshouser v. Shaner Hotel Grp. Props. One, 134 N.C. App. 391, 399-
400, 518 S.E.2d 17, 25, disc. review denied, 351 N.C. 104, 540
S.E.2d 362 (1999), aff'd, 351 N.C. 330, 524 S.E.2d 568 (2000)
(internal citations and quotations omitted).
There was insufficient evidence before the trial court to
support a conclusion that plaintiff was an intended beneficiary
under the franchise agreement. Plaintiff was not designated as a
beneficiary under the franchise agreement and there is absolutely
no evidence that the franchise agreement was executed for her
direct benefit. The franchise agreement does provide that MAO will
accept the winner of the North Carolina pageant as a contestant in
the national finals. However, this evidence is insufficient to
establish a showing of intent on the parties to make plaintiff anintended beneficiary. Further, the evidence adduced tended to show
that the primary intent of the franchise agreement was to ensure
uniformity among all franchisees and it provided the incidental
benefit of allowing the winner of MNCPO's contest to compete in the
 Plaintiff next contends that there was sufficient evidence
that plaintiff and MAO entered into an enforceable contract implied
'A contract implied in fact,. . . arises where the
intention of the parties is not expressed, but an agreement in
fact, creating an obligation is implied or presumed from their
acts[.]' Snyder v. Freeman, 300 N.C. 204, 217, 266 S.E.2d 593, 602
(1980) (citation omitted). With regard to contracts implied in
fact, however, one looks not to some express agreement, but to the
actions of the parties showing an implied offer and acceptance.
Id. at 218, 266 S.E.2d at 602.
On appeal, plaintiff points to testimony regarding actions
taken by MAO in preparation for the national finals as evidence of
a contract implied in fact. The evidence showed that in preparation
for the Miss America Pageant, MAO sent crews to compile an up-close
and personal video of each contestant and further took pictures of
each contestant for booklets to be published. However, the
testimony further showed that MAO took such actions in preparing
other contestants for the national finals, but never took any
action in regard to the preparation of plaintiff. In fact there isno evidence at all of any actions which would constitute an implied
offer from MAO, and therefore this assignment of error is
 Plaintiff further contends that there was sufficient
evidence that a contract existed between her and MAO where MNCPO
signed her contract as an agent under the franchise agreement for
Principles of agency arise when parties manifest consent that
one shall act on behalf of the other and subject to their control.
Wood v. McDonald's Corp.,
166 N.C. App. 48, 57, 603 S.E.2d 539, 545
Whenever the principal retains the right 'to control and
direct the manner in which the details of the work are to be
executed' by his agent, the doctrine of respondeat superior
operates to make the principal vicariously liable for the tortious
acts committed by the agent within the scope of their employment.
at 57-58, 603 S.E.2d at 546 (citation omitted).
A franchise agreement does not necessarily establish a
principal/agent relationship between the franchisee and franchisor.
Rather, it must be shown that the franchisor has control over the
franchisee's day-to-day operations and management.
The evidence in the instant case tended to show that MAO had
no control over the day-to-day operations or management of MNCPO.
Rather, the purpose of the franchise agreement, as stated supra
was to ensure uniformity between all franchisees. In addition, thefranchise agreement specifically stated that the agreement between
MAO and MNCPO did not create an agency relationship.
Where this Court has found there to be sufficient evidence
that there was no contract, express or implied in fact, it is
unnecessary to address the remaining assignments of error on
Accordingly, the order of the trial court is affirmed.
Chief Judge MARTIN and Judge LEVINSON concur.
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