Vanek v. Global Supply & Logistics, Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.
NO. COA13-1135
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
MIKE VANEK,
Plaintiff,
v. Mecklenburg County
No. 12-CVS-557
GLOBAL SUPPLY AND LOGISTICS, INC.,
STANFORD “RON” BANKS, GREG
KIRCHNER, ROBERT MALZACHER, and
MARTIN BANKS,
Defendants.
Appeal by Plaintiff from order entered 25 March 2013 by
Judge James W. Morgan in Mecklenburg County Superior Court.
Heard in the Court of Appeals 5 February 2014.
H. Morris Caddell, Jr., and Ronald A. Stearney, Jr., for
Plaintiff.
Moore & Van Allen PLLC, by David E. Fox, and Walker Wilcox
Matousek, LLP, by Thomas G. Griffin, for Defendants.
DILLON, Judge.
Mike Vanek (Plaintiff) appeals from the trial court’s order
dismissing with prejudice his claims against Global Supply and
Logistics, Inc. (GSL), Stanford “Ron” Banks, Greg Kirchner,
Robert Malzacher, and Martin Banks pursuant to Rule 12(b)(6) of
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the North Carolina Rules of Civil Procedure on grounds that his
claims were barred by the applicable three-year statute of
limitations set forth in N.C. Gen. Stat. § 1-52. For the
following reasons, we affirm.
I. Factual & Procedural Background
Defendant GSL is a closely-held corporation which,
according to Plaintiff, ceased all operations in April 2008.
The instant case involves a dispute between Plaintiff, who made
a substantial investment in GSL, and the individual Defendants
Ron Banks, Greg Kirchner, Robert Malzacher, and Martin Banks,
who are shareholders, officers and/or directors of GSL.
Plaintiff essentially claims that the individual Defendants made
misrepresentations concerning GSL and “engaged in a pattern of
conduct that treated [GSL] as a personal bank and when [GSL]
collapsed, stripped it of its assets to enrich themselves.”
On 5 May 2008, Plaintiff, along with other individuals who
were both officers and shareholders of GSL, filed a complaint
against Defendants in Mecklenburg County Superior Court (the
Original Action). Plaintiff subsequently filed an amended
verified complaint on 24 October 2008, asserting a number of
claims arising from his dispute with Defendants. However, on 23
September 2009, Plaintiff voluntarily dismissed these claims
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pursuant to Rule 41(a) of the North Carolina Rules of Civil
Procedure.
On 22 September 2010, Plaintiff commenced a second action
against Defendants, this time in the Circuit Court of Cook
County, Illinois (the Illinois Action), asserting substantially
the same claims that he had asserted in the Original Action. On
8 July 2011, Defendants moved to dismiss Plaintiff’s claims,
contending, inter alia, that the forum selection clause in the
parties’ Shareholders Agreement required that Plaintiff bring
his claims against them in North Carolina.
On 12 December 2011, the Illinois court entered an order
dismissing Plaintiff’s claims, stating, in pertinent part, the
following:
1) The Court finds that the contracts
referenced in the Complaint should be
attached to the complaint and that the forum
selection clause in the Shareholders
Agreement is binding on plaintiff and broad
in application covering all the claims
asserted by Plaintiff and bars plaintiff
from asserting those claims in a
jurisdiction other than North Carolina.
2) The Court accordingly grants the motion
and dismisses this action in favor of
jurisdiction in North Carolina.
On 11 January 2012, Plaintiff filed a new complaint against
Defendants, this time in Mecklenburg County Superior Court (the
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Present Action), again asserting substantially the same claims
that he had asserted against Defendants in the Original Action.
Plaintiff concedes that only GSL and Ron Banks (hereinafter,
Defendants) were served with the complaint in the Present
Action.
On 26 March 2012, Defendants moved to dismiss Plaintiff’s
claims in the Present Action, contending, inter alia, that they
were barred by the three-year statute of limitations under N.C.
Gen. Stat. § 1-52. The matter was heard in Mecklenburg County
Superior Court on 31 October 2012, and, by order entered 25
March 2013, the trial court agreed with Defendants and dismissed
Plaintiff’s claims “with prejudice pursuant to Rule 12(b)(6) of
the North Carolina Rules of Civil Procedure on the grounds that
each of those claims are barred by the applicable 3 year statute
of limitations.” From this order, Plaintiff appeals.
II. Jurisdiction
Plaintiff has voluntarily dismissed his claims against the
Defendants not served with the complaint in the Present Action,
namely, Greg Kirchner, Robert Malzacher, and Martin Banks.
Accordingly, the trial court’s 25 March 2013 order dismissing
Plaintiff’s claims against Defendants GSL and Ron Banks
represents a final judgment, and we exercise jurisdiction over
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Plaintiff’s appeal pursuant to N.C. Gen. Stat. § 7A-27(b)(1)
(2011).
III. Analysis
The trial court determined that Plaintiff’s claims in the
Present Action accrued no later than 24 October 2008, when
Plaintiff filed his amended complaint in the Original Action.
On appeal, Plaintiff sets forth a number of arguments in support
of his position that the trial court erred in concluding that
his claims in the Present Action were barred by the statute of
limitations, notwithstanding the fact that Plaintiff filed such
claims on 11 January 2012, more than three years after his
claims had accrued.1
A. Change of Venue
Plaintiff first contends that the filing date of the Present
Action should relate back to the date that he filed the Illinois
Action. Plaintiff asserts that the trial court failed to give
“full faith and credit” to the Illinois court order because it
treated that order as an outright dismissal of his claims,
1
We note that the trial court ordered Plaintiff, pursuant to
Rule 41(d) of the North Carolina Rules of Civil Procedure, to
pay Defendants’ courts costs incurred in the Original Action.
Plaintiff does not challenge the trial court’s order in this
respect, and we accordingly deem the issue abandoned. N.C. R.
App. P. 28(b)(6) (providing that “[i]ssues not presented in a
party’s brief . . . will be taken as abandoned”).
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rather than as an order transferring venue to North Carolina.
But Plaintiff cites no authority that would have authorized the
Illinois court to remove or transfer an action filed in Illinois
to a state court in North Carolina. See N.C. R. App. P.
28(b)(6) (providing that “[t]he body of [an appellant’s]
argument . . . shall contain citations of the authorities upon
which the appellant relies”). Moreover, the record reveals that
neither Plaintiff nor Defendants requested a transfer of venue;
that the relevant transfer of venue provision, 735 ILCS 5/2-104,
was never mentioned by either party; that the Illinois court’s
order granted Defendants’ motion for outright dismissal of
Plaintiff’s claims; that Plaintiff did not appeal from the
Illinois order; and that Plaintiff commenced a new action with
the filing of the complaint in the Present Action after
dismissal of his claims in the Illinois Action. Plaintiff’s
contention that the Illinois order somehow effected a transfer
of venue from Illinois to North Carolina is, therefore, without
merit, and we conclude that the trial court correctly construed
the Illinois order as a dismissal of Plaintiff’s claims.
B. “Savings” Provision
Plaintiff further contends that, even if the Illinois order
did not serve to transfer venue of his claims to North Carolina,
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his filing of the Present Action was nevertheless timely.
Plaintiff advances a number of arguments on this point; however,
we find them unconvincing.
First, any reliance by Plaintiff on the “savings”
provisions in Rule 41 of our Rules of Civil Procedure is
misplaced. Rule 41(a) allows a plaintiff to file an action
within one year of taking a voluntary dismissal, notwithstanding
that the statute of limitations may have run on his claims since
he commenced the initial action. N.C. Gen. Stat. § 1A-1, Rule
41(a) (2011). Rule 41(a), however, is inapplicable here, since
Plaintiff filed the Present Action on 12 January 2012, more than
one year after he voluntarily dismissed the Original Action on
23 September 2009. Further, Rule 41(b) allows a plaintiff
additional time to refile an action that is involuntarily
dismissed – where the dismissal is without prejudice – if the
court specifies “in its order that a new action based on the
same claim may be commenced within one year or less after such
dismissal.” N.C. Gen. Stat. § 1A-1, Rule 41(b) (2011). We have
held that it is generally the plaintiff’s burden to convince the
court to include in its dismissal order a statement permitting
the plaintiff additional time to refile the action. 84 Lumber
Co. v. Barkley, 120 N.C. App. 271, 461 S.E.2d 780 (1995). This
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holds true even if the prior dismissal is from another forum.
Harter v. Vernon, 139 N.C. App. 85, 532 S.E.2d 836 (2000)
(pertaining to dismissed federal action refiled in state court).
Here, the Illinois court did not include in its order any
provision permitting Plaintiff additional time to refile his
action; and there is nothing in the record to indicate that
Plaintiff made such a request. Accordingly, the savings
provisions under Rule 41 are inapplicable.
Plaintiff also argues that the Present Action was timely
filed because it was filed within 30 days of entry of the order
dismissing the Illinois Action. We have held that where a
federal court has dismissed a state court action, the plaintiff
may take advantage of a savings provision in the United States
Code allowing a plaintiff 30 days to refile a claim or claims in
state court, notwithstanding that the applicable statute of
limitations may have run during the pendency of the federal
action. Id. However, Plaintiff cites no authority that would
provide for such a savings provision in the context presented,
where a plaintiff refiles a dismissed state court action in
another state court.
Thus, absent a tolling of the statute of limitations under
one of the equitable doctrines advanced by Plaintiff and
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discussed below, we must conclude that Plaintiff’s claims were
appropriately dismissed as time-barred under N.C. Gen. Stat. §
1-52.
C. Equitable Estoppel
Plaintiff contends that “if the North Carolina statute of
limitations applies, it should be equitably tolled.” We
disagree.
“Under the doctrine of equitable tolling, equity will deny
a party’s right to assert a technical defense, such as lapse of
time, ‘when delay has been induced by acts, representations, or
conduct, the repudiation of which would amount to a breach of
good faith.’” Town of Pineville v. Atkinson/Dyer/Watson
Architects, P.A., 114 N.C. App. 497, 500, 442 S.E.2d 73, 74-75
(1994) (quoting Nowell v. Great Atl. & Pac. Tea Co., 250 N.C.
575, 579, 108 S.E.2d 889, 891 (1959)). “[A] plaintiff who seeks
to obtain equitable tolling of a limitations period must show
that the misrepresentations he reasonably relied upon were made
by the party raising the defense[.]” Id. at 500, 442 S.E.2d at75 (citing Charlotte Telecasters, Inc. v. Jefferson–Pilot Corp.,
546 F.2d 570 (4th Cir. 1976); Duke Univ. v. Stainback, 320 N.C.
337, 357 S.E.2d 690 (1987)).
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Here, there was no evidence before the trial court
indicating that Defendants in any way induced Plaintiff to bring
his claims against them in Illinois. The record evidence
reveals that Plaintiff, an Illinois resident, voluntarily
dismissed his claims against Defendants in the Original Action
and, notwithstanding the forum selection clause in the parties’
Shareholders Agreement, subsequently made the unilateral
decision to file the same claims against Defendants in Illinois.
Notably, Plaintiff does not argue that Defendants made any
misrepresentations or otherwise engaged in conduct that induced
him to initiate the Illinois Action or to otherwise delay his
bringing the Present Action in North Carolina. Absent any such
misrepresentations on Defendants’ part, “as a matter of law, the
equitable tolling doctrine does not apply to the limitations
period . . . .” Town of Pineville, 114 N.C. App. at 500, 442
S.E.2d at 75.
Plaintiff further argues that “the point of the statute of
limitations is to put a defendant on notice and to defend a
litigant from a stale action” and “[t]his is not a case where
the Defendants are being confronted with a stale action or are
surprised by the allegations.” This contention ignores the
equitable element that must be present in order to invoke an
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equitable tolling of the statute of limitations. Even assuming
that Defendants had been put on notice of Plaintiff’s claims by
virtue of the claims asserted against them in the Original
Action, this fact would not dispense with the requirement that
Plaintiff demonstrate his reasonable reliance upon
misrepresentations or other inducing conduct by Defendants that
caused him to delay filing his claims in the Present Action.
Accordingly, this contention is overruled.
D. Judicial Estoppel
Plaintiff also contends that “judicial estoppel bars
Defendants from raising the statute of limitations.” We
disagree.
Judicial estoppel is an equitable doctrine which “precludes
a party from making a factual assertion on one position when it
had successfully argued the opposite position in a previous
proceeding[.]” Wiley v. United Parcel Serv., Inc., 164 N.C.
App. 183, 188, 594 S.E.2d 809, 812 (2004). Whereas equitable
estoppel “is designed to promote fairness between the parties, .
. . judicial estoppel seeks primarily to protect the integrity
of judicial proceedings.” Whitacre P’ship v. Biosignia, Inc.,
358 N.C. 1, 17, 591 S.E.2d 870, 881 (2004). Our Supreme Court
has stated that the following three factors are relevant in
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determining whether application of the judicial estoppel
doctrine is appropriate in a particular case:
First, a party’s subsequent position must be
clearly inconsistent with its earlier
position. Second, courts regularly inquire
whether the party has succeeded in
persuading a court to accept that party’s
earlier position, so that judicial
acceptance of an inconsistent position in a
later proceeding might pose a threat to
judicial integrity by leading to
inconsistent court determinations or the
perception that either the first or the
second court was misled. Third, courts
consider whether the party seeking to assert
an inconsistent position would derive an
unfair advantage or impose an unfair
detriment on the opposing party if not
estopped.
Id. at 29, 591 S.E.2d at 888–89 (citations and quotation marks
omitted).
Here, Plaintiff frames his judicial estoppel argument as
follows: In seeking dismissal of Plaintiff’s claims in the
Illinois Action, Defendants cited the Shareholders Agreement’s
forum selection clause and asserted that Plaintiff had not
demonstrated that he would be deprived of his day in court if
that clause were enforced; Defendants essentially contended,
according to Plaintiff, that a dismissal of the Illinois Action
would not result in any detriment to Plaintiff since Plaintiff
would still be able to bring his claims against Defendants in
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North Carolina; then, when Plaintiff subsequently filed those
same claims in North Carolina, Defendants took an “inconsistent
position” in asserting the statute of limitations as a defense
to Plaintiff’s claims.
We disagree with Plaintiff that the positions advocated by
Defendants in the Illinois Action and subsequently in the
Present Action were clearly inconsistent. Defendants succeeded
in dismissing Plaintiff’s claims in the Illinois Action because
the Illinois court accepted Defendants’ position that the
Shareholders Agreement’s forum selection clause required
Plaintiff to bring his claims in North Carolina. Whether
Plaintiff would be “deprived of his day in court” as a result of
the dismissal may or may not have factored into the court’s
decision, since, as we have held supra, the court’s order was an
order of dismissal, not an order transferring venue to North
Carolina. Thus, although Defendants’ assertion of the statute
of limitations, and the trial court’s acceptance thereof, in the
Present Action resultantly barred Plaintiff’s claims, we cannot
say that this result followed from clearly inconsistent
positions advanced by Defendants.
Moreover, we discern no inconsistency in the Illinois
court’s dismissal on the basis of the forum selection clause and
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the trial court’s dismissal in the Present Action based on the
statute of limitations. The result might be different had the
Illinois court, as Plaintiff insists, ordered a transfer of
venue; but that was not the case here. Nor do we believe that
these proceedings have resulted in any unfair detriment to
Plaintiff. It was Plaintiff’s decision to file his claims in
Illinois notwithstanding the forum selection clause in the
Shareholders Agreement, and it was Plaintiff’s responsibility to
be cognizant of the applicable statute of limitations in North
Carolina. We reject Plaintiff’s insinuation that it was the
duty of Defendants’ counsel, in seeking dismissal of the
Illinois Action, to conduct Plaintiff’s due diligence for him
and to inform him of any potential bars to his claims in North
Carolina. Plaintiff’s contentions on this issue are overruled.
III. Conclusion
In light of the foregoing, the trial court’s 25 March 2013
order is hereby
AFFIRMED.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).