Miller v. Ruth's of North Carolina, Inc. , 69 N.C. App. 672 ( 1984 )

318 S.E.2d 2 (1984)

Thomas E. MILLER
v.
RUTH'S OF NORTH CAROLINA, INC., Ruth's of South Carolina, Inc., Frances June Griffin, Robert Griffin, B & H Food, Inc., B & H, Inc. of Chester, and Mid-South Brokerage Co., Inc.

No. 8326SC845.

Court of Appeals of North Carolina.

July 17, 1984.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage and Debra L. Foster, Charlotte, for plaintiff-appellant.

Fairley, Hamrick, Monteith & Cobb, by S. Dean Hamrick and F. Lane Williamson, Charlotte, for defendants-appellees.

EAGLES, Judge.

Plaintiff assigns as error the trial court's granting summary judgment for defendants. We find no error.

A motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Plaintiff's shareholder derivative action and individual claim to compel dividends are, as a matter of law, barred by the judgment in the 1976 action. The judgment in the 1976 action between this plaintiff and these defendants (except Mid-South Brokerage Co., Inc.) compensated plaintiff as if he had sold his shares in 1976 "[a]s of December 31, 1976," before any "wrongs" were committed and provided that plaintiff be paid interest on the sale proceeds after that time. Therefore, plaintiff's first claim for relief in the present action, a shareholder's derivative action, based on events occurring after the 1976 action, must fail. The effect of the judgment in the 1976 action is that plaintiff was no longer a shareholder "at the time of the transaction of which he complains." Ownership of shares "at the time of the transaction of which he complains" is an essential prerequisite to maintenance of a derivative action. G.S. 55-55(a). Similarly, plaintiff's individual claim to compel dividends wrongfully withheld since 1977 must also fail because the effect of the judgment in the 1976 action is that plaintiff was not a shareholder after 31 December 1976 and not entitled to dividends after 1976. See G.S. 55-50. For the same reasons, neither of these claims against Mid-South Brokerage Co., Inc. survive, because, according to plaintiff's complaint, Mid-South was incorporated in September 1977.

Plaintiff's individual claim for compensatory and punitive damages occurring since 1976 because of his "wrongful termination" as an officer of the Ruth's companies must also fail. In North Carolina it is a settled rule of law that "employment for an indefinite term is regarded as an employment at will which may be terminated at any time by either party." Roberts v. Wake Forest University, 55 N.C. App. 430, 434, 286 S.E.2d 120, 123, rev. denied, 305 N.C. 586, 292 S.E.2d 571 (1982). Because plaintiff here has neither alleged nor shown by affidavit that his employment was for a definite term, he was, as a matter of law, an employee at will who could be terminated at will. Summary judgment in favor of defendants on plaintiff's "wrongful termination" claim was therefore proper because plaintiff failed to come forward with a forecast of evidence to support his claim for relief. See Cone v. Cone, 50 N.C.App. 343, 274 S.E.2d 341, rev. denied, 302 N.C. 629, 280 S.E.2d 440 (1981).

Plaintiff also assigns as error the trial court's entry of the "stay order" on 16 February 1982. Enlargement of time in which to file responsive pleadings is discretionary with the trial judge and we find no abuse of that discretion here. N.C.R. Civ.P. 6.

Affirmed.

VAUGHN, C.J., and BRASWELL, J., concur.