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holding that defendant's breach of fiduciary duty to his partners occurred within a single market participant and thus was not "in or affecting commerce."
Summary of this case from Shriners Hosps. for Children v. Paul F.M. Shaver, III, Profit Sharing PlanOpinion
No. 226A09.
Filed April 15, 2010.
Unfair Trade Practices — allegations between partners — not in or affecting commerce — internal business operations
The Court of Appeals did not err in a case involving unfair and deceptive trade practice allegations between partners by concluding a partner's actions were not "in or affecting commerce" as that term is used under N.C.G.S. § 75-1.1, and thus not an unfair or deceptive trade practice, because: (1) the General Assembly sought to prohibit unfair or deceptive conduct in inter-actions between different market participants and did not intend for it to regulate purely internal business operations; and (2) in the instant case the breaching partner's unfair conduct was solely within a single partnership.
Justice HUDSON dissenting.
Justice TIMMONS-GOODSON joining in the dissenting opinion.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 196 N.C. App. ___, 676 S.E.2d 104 (2009), affirming in part and reversing in part a judgment entered 12 February 2008 by Judge Douglas B. Sasser in Superior Court, Columbus County. Heard in the Supreme Court 18 November 2009.
Lee Lee, by Junius B. Lee, III, for plaintiff-appellants. Ralph G. Jorgensen for defendant-appellees Andrew Thompson and, Douglas Thompson.
This case presents the question whether the General Assembly intended unfair or deceptive conduct among partners contained solely within a single business to be "in or affecting commerce" such that a partner's breach of his fiduciary duty owed to his fellow partners violates North Carolina's unfair and deceptive practices act ("the Act"), N.C.G.S. § 75-1.1. With the Act our General Assembly sought to prohibit unfair or deceptive conduct in interactions between different market participants. The General Assembly did not intend for the Act to regulate purely internal business operations. In the present case the breaching partner's unfair conduct was solely within a single partnership. Accordingly, we hold that his action is not "in or affecting commerce" as that term is used in N.C.G.S. § 75-1.1 and that such conduct is therefore not a violation of the Act. As such, we affirm the decision of the Court of Appeals.
Plaintiffs Charles White and Earl Ellis, along with defendant Andrew Thompson, were partners in an entity known as Ace Fabrication and Welding ("ACE"). The partners formed ACE in October of 2000 primarily for the purpose of performing specialty construction and fabrication work at a plant in Bladen County operated by Smithfield Packing Company, Inc. The three men agreed that each would own one-third of ACE, and each would also receive an hourly wage from ACE for the work each partner actually performed. Shortly after forming ACE, the men acquired certain assets needed to operate their business, including the necessary insurance policies and billing and advertising materials. Also, the partners hired defendant Douglas Thompson, defendant Andrew Thompson's father, as ACE's accountant.
The Smithfield Packing plant at which ACE sought to work used a bidding system to award jobs to either ACE or one of the "five or six" other subcontractors performing specialty fabrication work in the plant. Defendant Andrew Thompson testified that Smithfield Packing would inform those interested in working in the plant of the available jobs. According to him, the three partners would evaluate the available job and then submit ACE's bid to the appropriate individual at Smithfield Packing. Barry White, an employee of Smithfield Packing, testified regarding the bidding process. Barry White stated that although four different individuals must approve purchase orders for jobs to be performed by outside subcontractors, all four individuals are "not necessarily [approving] who gets the job." Barry White "approve[d] the way [the purchase order had] been coded"; the "plant engineer and plant superintendent" approved the firm selected to complete the job; and the "plant manager . . . basically [ensured that the] money's being paid."
From the testimony presented at trial, it appears that ACE enjoyed initial success. Defendant Andrew Thompson testified that ACE won its first job roughly a week after it began submitting bids. Plaintiff White presented similar evidence, explaining that ACE successfully submitted bids and performed work at Smithfield Packing from late October of 2000 until January of 2001. However, ACE's initial success eventually fell victim to disagreements and infighting among the partners.
The partners described to the jury their disagreements while involved with ACE. Plaintiff White testified that defendant Andrew Thompson misinformed him of some days on which ACE was scheduled to perform specific jobs. Plaintiff White further explained that defendant Andrew Thompson "had a little small crew that he liked to buddy with that he had hired" despite the partners' agreement that "any work was supposed to go between the three [partners] first because [the partners] made more money doing [their] own work." However, defendant Andrew Thompson claimed that the other two ACE partners were frequently unavailable for work. He stated that plaintiff White was frequently unavailable on weekends and was often "at the beach" with his wife. Defendant Andrew Thompson also relayed that plaintiff Ellis operated another business after ACE was formed and often "had places to go." More specifically, he recalled one instance when ACE was "working on wet cement one day and [plaintiff Ellis] said my 40 hours [are] up, let me get out of here." Plaintiff Ellis, however, testified that during every week of ACE's operation, he worked "40 to 50, sometimes 60" hours. Also, plaintiff White explained to the jury that he informed the other two partners before forming ACE that he held another job and asked if either had a problem with his other employment. According to plaintiff White, neither man had any reservation about forming ACE.
The ACE partners' disagreements led to defendant Andrew Thompson's decision to leave the partnership and start his own business, PAL. According to defendant Andrew Thompson, he decided to sever his ties with ACE and begin his own business in January of 2001. Further, he testified that he informed his partners of this decision sometime between 10 January and 15 January 2001. He also stated that after he had informed his partners of his decision to leave ACE, plaintiffs White and Ellis asked him to complete under the ACE name certain jobs which had been awarded to ACE. Defendant Andrew Thompson acceded to plaintiffs' request, explaining that he "finished those jobs in [the] A[CE] name and was also working in the P[AL] name." Plaintiff White, however, testified that he first heard in early February 2001 that defendant Andrew Thompson was starting another business. Moreover, plaintiff White stated that it was defendant Fran Lurkee, a Smithfield Packing employee, who conveyed that defendant Andrew Thompson "wanted to go on his own" and had already been "doing . . . a great job" in the plant for defendant Lurkee.
The ACE partners experienced similar disharmony in attempting to distribute assets of the business. Apparently, plaintiffs were unable to communicate easily with defendants Douglas and Andrew Thompson after Andrew Thompson's departure from ACE. According to plaintiff White, "[s]ome of the money [disbursed by Smithfield Packing for work ACE had performed] wasn't being deposited [into ACE's account]." Plaintiffs White and Ellis changed the mailing address Smithfield Packing had on file for ACE, for the purpose of receiving payment for work ACE had completed. Plaintiff White also transferred the balance of the ACE bank account to his personal account, explaining that plaintiffs embarked on this course of action to preserve the status quo pending resolution of ACE's affairs. Furthermore, the partners hastily divided ACE's tools, leaving plaintiffs White and Ellis dissatisfied with the distribution. As explained by plaintiff White, defendant Andrew Thompson "threw [ACE's tools] on the floor and [plaintiffs White and Ellis] picked up what [they] had to have."
After defendant Andrew Thompson disassociated himself from ACE, the three former ACE partners continued to work in the Smithfield Packing plant. Plaintiff White testified he and plaintiff Ellis decided to form another business named Whelco. This business, despite being awarded several jobs, remained viable for only a few months. Defendant Andrew Thompson continued to perform work at Smithfield Packing under his new business name, PAL, until roughly October of 2001.
Plaintiffs filed the present lawsuit on 18 October 2002. In their complaint plaintiffs alleged that defendant Andrew Thompson: (1) "acted in derogation of the interests of his partners and the partnership" by, inter alia, forming PAL, to which he "funnel[ed] work originally intended for ACE"; (2) conspired with former Smithfield Packing employees, defendants Fran Lurkee and Carl Barnes, "to divert work originally contracted for by ACE . . . to his separate business entity and, on information and belief, paid illegal and improper emoluments for their assistance in this regard"; and (3) conspired with his father, defendant Douglas Thompson, "to improperly keep and maintain the books of ACE." Plaintiffs also contended that the preceding allegations constituted unfair and deceptive trade practices under the Act. Before the jury considered the case, defendant Carl Barnes apparently extinguished any potential liability on his part in a bankruptcy proceeding, and the trial court directed a verdict in favor of defendant Fran Lurkee. The jury returned a special verdict finding that defendant Andrew Thompson breached his fiduciary duty to plaintiffs "by failing to act fairly, honestly, and openly," and it awarded $138,195.00 in damages against him. The jury also found that defendant Douglas Thompson breached his fiduciary relationship to plaintiffs "by failing to act fairly, honestly, and openly" and awarded $750.00 in damages against him. Pursuant to N.C.G.S. § 75-16, the trial court then, by judgment entered 12 February 2008, trebled these amounts to $414,585.00 and $2,250.00, respectively.
Defendants Andrew Thompson and Douglas Thompson appealed from the trial court's judgment to the Court of Appeals. The majority of a divided panel of that court reversed the portion of the trial court's judgment trebling the damage award with respect to defendant Andrew Thompson. White v. Thompson, 196 N.C. App.___, ___, 676 S.E.2d 104, 108-09 (2009). The majority concluded that Andrew Thompson's usurpation of partnership opportunities was not "in or affecting commerce" as that phrase is used in the Act, stating that his conduct had no impact on the marketplace. Id. The dissenting judge, after examining precedent from both this Court and the Court of Appeals, would have held to the contrary. 196 ___ N.C. App. at ___, 676 S.E.2d at 111-15 (Ervin, J., concurring in part and dissenting in part). The Court of Appeals otherwise affirmed the trial court's judgment. Plaintiffs appealed to this Court as of right based on the dissenting opinion filed in the Court of Appeals.
Before a plaintiff may avail itself of the Act's remedies, it must prove that a defendant's "conduct falls within the statutory frame-work allowing recovery." HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 592, 403 S.E.2d 483, 492 (1991). The Act provides that "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." N.C.G.S. § 75-1.1(a) (2009). Thus, a plaintiff must prove, inter alia, that a defendant's unfair or deceptive action was "in or affecting commerce" before the plaintiff may be awarded treble damages under N.C.G.S. § 75-16. Sara Lee Corp. v. Carter, 351 N.C. 27, 32, 519 S.E.2d 308, 311 (1999) (citation omitted); HAJMM Co., 328 N.C. at 592, 403 S.E.2d at 492 (citation omitted).
In HAJMM Co. this Court determined that our General Assembly demonstrated with the text of the Act that it intended the Act to regulate a business's regular interactions with other market participants. 328 N.C. at 594, 403 S.E.2d at 493. There, we observed that the Act defines "`commerce'" as "`business activities.'" Id. (quoting N.C.G.S. § 75-1.1(b) (1991)). We explained that the term "`[b]usiness activities'. . . connotes the manner in which businesses conduct their regular, day-to-day activities, or affairs, such as the purchase and sale of goods, or whatever other activities the business regularly engages in and for which it is organized." Id. Ultimately, this Court determined that "extraordinary event[s]," such as raising capital, and internal operations of a single business, such as removing a "security from the capital structure," are not business activities within the General Assembly's intended meaning of the term. Id. We concluded in HAJMM Co. that securities transactions "are not `business activities' as that term is used in the Act. They are not, therefore, `in or affecting commerce,' even under a reasonably broad interpretation of the legislative intent underlying these terms." Id. (emphasis added). Thus, any unfair or deceptive practices occurring in the conduct of extraordinary events of, or solely related to the internal operations of, a business will not give rise to a claim under the Act. 328 N.C. at 594-95, 403 S.E.2d at 493.
Furthermore, in Bhatti v. Buckland, this Court observed that the history of the Act indicates that the General Assembly was targeting unfair and deceptive interactions between market participants. 328 N.C. 240, 245-46, 400 S.E.2d 440, 443-44 (1991). The General Assembly originally stated the Act's purpose as follows:
The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.
N.C.G.S. § 75-1.1(b) (1975), quoted in Bhatti, 328 N.C. at 245, 400 S.E.2d at 443. Essentially, the General Assembly indicated through its original statement of purpose that the Act was designed to achieve fairness in dealings between individual market participants. To accomplish this goal, the General Assembly explained that the Act would regulate two types of interactions in the business setting: (1) interactions between businesses, and (2) interactions between businesses and consumers. The General Assembly sought for the Act to control any unfair or deceptive conduct occurring in one of these two types of interactions. In Bhatti we also observed that, despite a subsequent amendment to the Act, the General Assembly remained devoted to regulating unfair and deceptive conduct in interactions between market participants, both businesses and consumers. 328 N.C. at 245-46, 400 S.E.2d at 443-44.
We had occasion to apply these principles in Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308 (1999), and Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704 (2001). In Sara Lee an employee of the plaintiff corporation engaged in undisclosed self-dealing by purchasing on plaintiff's behalf computer parts and services supplied by firms in which the employee held a financial interest. 351 N.C. at 29, 519 S.E.2d at 309. We determined the defendant-employee's unfair or deceptive actions were within the Act's ambit because they did not occur solely within the employer-employee relationship, but rather occurred in interactions between the plaintiff and the defendant's outside businesses. Id. at 33-34, 519 S.E.2d at 312. In Dalton, on the other hand, we examined a situation in which the defendant, who was in the plaintiff's employ at the time of his conduct, formed a competing venture and successfully negotiated for the rights to publish a newspaper that had previously been published by the plaintiff. 353 N.C. at 649, 658, 548 S.E.2d at 706, 711-12. We determined that this conduct, the potential unfairness of which was confined to within a single business, was not within the Act's purview. Id., at 658, 548 S.E.2d at 712.
Our prior decisions have determined that the General Assembly did not intend for the Act's protections to extend to a business's internal operations. As we determined in HAJMM Co. and Dalton, the Act is not focused on the internal conduct of individuals within a single market participant, that is, within a single business. To the contrary, as we observed in Bhatti and Sara Lee, the General Assembly intended the Act's provisions to apply to interactions between market participants. As a result, any unfair or deceptive conduct contained solely within a single business is not covered by the Act. As the foregoing indicates, this Court has previously determined that the General Assembly did not intend for the Act to intrude into the internal operations of a single market participant.
In the case sub judice the unfairness of defendant Andrew Thompson's conduct occurred in interaction among the partners within ACE. Plaintiffs were partners with Andrew Thompson in a single market participant. Plaintiffs alleged and proved that defendant Andrew Thompson breached his fiduciary duty as a partner in this single market participant. Plaintiff White's testimony demonstrated that defendant Andrew Thompson preferred to work with several men whom he had hired, rather than working with plaintiffs White and Ellis. Also, according to plaintiff White, defendant Andrew Thompson misinformed plaintiffs about the dates of certain projects ACE had contracted to perform and began working independently while still an ACE partner. Because defendant Andrew Thompson unfairly and deceptively interacted only with his partners, his conduct occurred completely within the ACE partnership and entirely outside the purview of the Act.
Plaintiffs contend, however, that defendant Andrew Thompson's conduct is within the Act's ambit because his actions led to the demise of ACE as a viable entity and its removal from the market, thereby reducing competition and potentially affecting prices in that market. Plaintiffs appear to argue that defendant Andrew Thompson's conduct potentially affected the price Smithfield Packing would have to pay for specialty fabrication work. However, this argument overlooks that the unfairness of defendant Andrew Thompson's conduct did not occur in his dealings with Smithfield Packing. Defendant Andrew Thompson was found to have breached his fiduciary duty to his partners through his conduct within the ACE partnership. The General Assembly simply did not intend for such conduct to fall within the Act's coverage.
While we appreciate the cogent, compelling analyses submitted in both the majority and dissenting opinions at the Court of Appeals, we believe the General Assembly did not intend to encompass within the Act defendant Andrew Thompson's conduct. Accordingly, we affirm the decision of the Court of Appeals.
AFFIRMED.