Appeal by plaintiff from order dated 22 November 2005 by Judge
Ronald L. Stephens in Wake County Superior Court. Heard in the
Court of Appeals 10 January 2007.
Bailey & Dixon, LLP, by J. Heydt Philbeck, for plaintiff-
Jackson, Mills & Carter, P.A., by F. Darryl Mills, for
A. Mark Esposito (plaintiff) appeals from an order dated 22
November 2005 granting summary judgment in favor of Talbert &
Bright, Inc., and John T. Talbert, III (defendants) as to all ofplaintiff's claims. For the reasons below, we affirm the order of
the trial court.
From 1983 until 12 June 2000, plaintiff was employed by the
North Carolina Department of Transportation (NCDOT), Division of
Aviation. Plaintiff was NCDOT's project manager for a runway
expansion project (the Project) involving the Brunswick County
Airport in Brunswick County, North Carolina. At the time plaintiff
was managing the Project, his immediate supervisor was Richard
Barkes, the Airport Development Manager. The Aviation Director,
William Williams, was Barkes' immediate supervisor, and Deputy
Secretary David King was Williams' immediate supervisor. Talbert
& Bright, Inc. is an engineering firm which provides consulting
engineering services and was hired by the Brunswick County Airport
Authority to be the consulting engineer for the Project. John T.
Talbert, III was an officer and director of Talbert & Bright, Inc.
On 3 April 2000 a meeting occurred between, among others,
Williams and Talbert. At this meeting the attendees discussed
communication and personnel concerns relating to the Project,
including several complaints concerning plaintiff's role in the
project and possible ethical violations by plaintiff.
On 12 May 2000, Williams initiated disciplinary action against
plaintiff by placing him on administrative leave. Subsequently,
Williams terminated plaintiff's employment with NCDOT. Plaintiff
challenged his employment termination pursuant to the State
Personnel Act, and the Office of Administrative Hearingssubsequently overturned plaintiff's termination finding he was
terminated without just cause. Plaintiff has been reinstated to a
job with NCDOT, but it is outside of his career field.
On 8 October 2004, plaintiff filed suit against defendants,
alleging claims for tortious interference with contract, unfair and
deceptive trade practices, and civil conspiracy. Defendants filed
their answer in this case on 7 December 2004. On 18 July 2005,
defendants filed a motion for summary judgment, which was granted
by the trial court by Order dated 22 November 2005. Plaintiff
Plaintiff argues the trial court erred in granting summary
judgment in favor of defendants on his claims of tortious
interference with contract, unfair and deceptive trade practices,
and civil conspiracy. We disagree.
Standard of Review
Under Rule 56(c) of the North Carolina Rules of Civil
Procedure, summary judgment shall be rendered forthwith 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). The burden is upon the moving party to
show that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. McGuirev. Draughon
, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005)
(citing Lowe v. Bradford
, 305 N.C. 366, 369, 289 S.E.2d 363, 366
(1982)). The moving party may meet its 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.
Collingwood v. Gen. Elec. Real Estate Equities, Inc.
, 324 N.C. 63,
66, 376 S.E.2d 425, 427 (1989) (citation omitted).
Once the moving party meets its burden, the nonmovant, in
order to survive the summary judgment motion, must produce a
forecast of evidence demonstrating that the [nonmovant] will be
able to make out at least a prima facie
case at trial. Id.
376 S.E.2d at 427 (citation omitted). The nonmovant may not rest
upon the mere allegations or denials of his pleading, but his
response . . . must set forth specific facts showing that there is
a genuine issue for trial. N.C. Gen. Stat. § 1A-1, Rule 56(e)
(2005). However, [a]ll facts asserted by the [nonmoving] party
are taken as true and their inferences must be viewed in the light
most favorable to that party. Dobson v. Harris
, 352 N.C. 77, 83,
530 S.E.2d 829, 835 (2000) (internal citations omitted). On
appeal, this Court reviews an order granting summary judgment de
. McCutchen v. McCutchen
, 360 N.C. 280, 285, 624 S.E.2d 620,
Tortious Interference with Contract
 Plaintiff first argues the trial court erred in granting
defendants summary judgment as to his claim of tortious
interference with his contract for employment with NCDOT. To
establish a claim for tortious interference with contract,
plaintiff must show:
(1) a valid contract between the plaintiff
and a third person which confers upon the
plaintiff a contractual right against a third
person; (2) the defendant knows of the
contract; (3) the defendant intentionally
induces the third person not to perform the
contract; (4) and in doing so acts without
justification; (5) resulting in actual damage
Beck v. City of Durham
, 154 N.C. App. 221, 232, 573 S.E.2d 183,
191 (2002) (quoting United Labs., Inc. v. Kuykendall
, 322 N.C. 643,
661, 370 S.E.2d 375, 387 (1988)). A plaintiff may maintain a
claim for tortious interference with contract even if the
employment contract is terminable at will. Bloch v. Paul Revere
Life Ins. Co.
, 143 N.C. App. 228, 239, 547 S.E.2d 51, 59 (2001)
Here, defendants produced evidence challenging plaintiff's
ability to establish that they intentionally induced NCDOT to
terminate the employment of plaintiff. Plaintiff's attempts at
forecasting evidence supporting this element of his claim fall
short of meeting his required burden. Even taking all of
plaintiff's evidence as true, and drawing all inferences in his
favor, plaintiff's forecast of evidence does not show defendants
NCDOT to terminate plaintiff's employment.
Defendants' allegations and problems with plaintiff were but one ofsix instances of unacceptable conduct upon which NCDOT based the
termination of plaintiff's employment. Plaintiff has not produced
any evidence indicating defendants actually sought the termination
of plaintiff's employment with NCDOT. Further, given the sworn
affidavits of Williams, Barkes, and King, all stating that
defendants did not induce the termination of plaintiff's
employment, any inference drawn from defendants' statements and
conduct suggesting otherwise is too tenuous to defeat summary
judgment. See White v. Cross Sales & Eng'g Co.
, 177 N.C. App. 765,
770, 629 S.E.2d 898, 901 (2006) (upholding summary judgment in
favor of the defendant where the plaintiff relied only on an
allegation, with no proof, that the third party intentionally
induced her firing). Therefore, plaintiff has failed to forecast
evidence demonstrating he will be able to make out at least a prima
case at trial and the trial court did not err in granting
summary judgment for defendants as to plaintiff's claim for
tortious interference with contract.
Unfair and Deceptive Trade Practices
 Plaintiff next argues the trial court erred in granting
defendants summary judgment as to his claim of unfair and deceptive
trade practices. To prevail on a claim of unfair and deceptive
trade practices, a plaintiff must show: (1) defendants committed an
unfair or deceptive act or practice; (2) in or affecting commerce;
and (3) that plaintiff was injured thereby. Strickland v.
, 176 N.C. App. 656, 665, 627 S.E.2d 301, 307 (2006)
(citation and quotations omitted); see also
N.C. Gen. Stat § 75-1.1(2005) (declaring unfair or deceptive acts or practices in or
affecting commerce unlawful). This Court has further held that:
The primary purpose of G.S. § 75-1.1 is to
provide a private cause of action for
consumers. Although commerce is defined
broadly under G.S. § 75-1.1(b) as all business
activities, however denominated, the
fundamental purpose of G.S. § 75-1.1 is to
protect the consuming public. Typically,
claims under G.S. § 75-1.1 involve [a] buyer
and seller. Thus, the statute usually is not
applicable to employment disputes.
Nonetheless, the mere existence of an
employer-employee relationship does not in and
of itself serve to exclude a party from
pursuing an unfair trade or practice claim.
The proper inquiry is not whether a
contractual relationship existed between the
parties, but rather whether the defendants'
allegedly deceptive acts affected
What is an unfair or deceptive trade practice
usually depends upon the facts of each case
and the impact the practice has in the
Durling v. King
, 146 N.C. App. 483, 488-89, 554 S.E.2d 1, 4 (2001)
(internal citations and quotations omitted).
Here, as in Issue I, supra
, plaintiff's claim is based upon
defendants' statements and actions to plaintiff's supervisors.
that defendants' statements and actions were
unfair or deceptive acts or practices that injured plaintiff,
plaintiff has forecast no evidence that defendants' statements and
actions had any impact beyond his employment relationship with
NCDOT. Therefore plaintiff has failed to show defendants'
statements and actions were in or affecting commerce and the
trial court did not err in granting summary judgment for defendants
as to plaintiff's claim for unfair and deceptive trade practices.
 Plaintiff lastly argues the trial court erred in granting
defendants summary judgment as to his claim of civil conspiracy.
It is well established that there is not a separate civil action
for civil conspiracy in North Carolina. Dove v. Harvey
, 168 N.C.
App. 687, 690, 608 S.E.2d 798, 800 (2005) (citing Shope v. Boyer
268 N.C. 401, 150 S.E.2d 771 (1966)), disc. rev. denied
, 360 N.C.
289, 628 S.E.2d 249 (2006). The charge of conspiracy itself does
nothing more than associate the defendants together and perhaps
liberalize the rules of evidence to the extent that under proper
circumstances the acts and conduct of one might be admissible
against all. Id.
(citation and quotations omitted).
Plaintiff argues that civil conspiracy should attach to
defendants for their statements and actions which underlie
plaintiff's claims for tortious interference with contract and
unfair and deceptive trade practices. As we have held that summary
judgment for defendants on these claims was proper, plaintiff's
claim for civil conspiracy must also fall. Therefore, the trial
court did not err in granting summary judgment for defendants as to
plaintiff's claim for civil conspiracy.
Judges McGEE and ELMORE concur.
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