Girard Trust Bank v. Belk , 41 N.C. App. 328 ( 1979 )

255 S.E.2d 430 (1979) 41 N.C. App. 328

GIRARD TRUST BANK
v.
Henderson BELK, Frank W. Wilson, Palmer Ford and Henderson Belk Enterprises, Inc.

No. 7826SC621.

Court of Appeals of North Carolina.

June 5, 1979.

Fairly, Hamrick, Monteith & Cobb by S. Dean Hamrick and F. Lane Williamson, Charlotte, for plaintiff-appellant.

Weinstein, Sturges, Odom, Bigger, Jonas and Campbell by T. LaFontine Odom and L. Holmes Eleazer, Jr., Charlotte, for defendants-appellees.

MORRIS, Chief Judge.

Plaintiff's Appeal

Plaintiff assigns error to the entry of summary judgment dismissing defendants Belk and Henderson Belk Enterprises, Inc. Plaintiff's primary contention is "that the circumstantial evidence that Belk was a party to the fraud is overwhelming." Furthermore, plaintiff cites Temel-Peck's indebtedness to Belk as a motive for the alleged scheme, Belk's control of the corporations as the opportunity to perpetrate the fraud, along with the knowing acceptance of the benefits of the fraudulent transaction, failure to make an investigation of the transaction (acquiescence), and a "ratification" of the conduct as "strong indications that he knew the entire situation from its inception." Plaintiff's position, therefore, appears to be that not only do the inferences drawn from the materials submitted in opposition to the motion for summary judgment prove that Belk must have been involved in the alleged fraudulent scheme, but that his conduct of ratification and acceptance of the benefits establish his liability. See generally 37 C.J.S. Fraud § 61.

The elements of fraud long have been clearly enunciated by the courts in this State. In a recent decision determining that judgment on the pleadings was inappropriate in a fraud case because of the existence of material issues of fact, the Court noted:

"While fraud has no all-embracing definition and is better left undefined lest crafty men find a way of committing fraud which avoids the definition, the following essential elements of actionable fraud are well established: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974).

Summary judgment here was apparently entered because of the trial court's opinion that as a matter of law Belk was not responsible for the alleged fraud of his agent merely because of the legal relationship between Belk as an officer and director of the corporations which Wilson served. See Knitting Mills Co. v. Earle, 237 N.C. 97, 74 S.E.2d 351 (1953). However, as noted above, plaintiff's allegations indicate more than just the agency relationship. Plaintiff's averments tie Belk to the alleged scheme through inferences that he must have been involved because of his relationship with all of the parties and his potential personal benefit from the transaction. Plaintiff relies upon inferences which it maintains should be drawn from the circumstantial evidence to establish the above-mentioned elements of fraud. The effect of such inferences on the propriety of summary disposition of the case must be considered.

The threshold inquiry in reviewing the propriety of the entry of summary judgment concerns whether genuine issues of material fact are raised by the pleadings and papers filed in conjunction with the motion. The burden is upon the party moving for summary judgment to show, in order to be entitled to judgment, that no such questions of fact remain to be resolved. Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976). That movant's papers must be carefully scrutinized, while those of the opposing party are to be indulgently regarded. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). The defendant Belk's affidavit and deposition suggest that Belk was completely unaware of the nature of financing for purchase of the ten Disposacons, and that Belk at no time acted for Automated in any transaction or scheme as alleged by the plaintiff. As a matter of fact, Belk's testimony indicated that he knew absolutely nothing about Automated's business and could not testify about it without checking the records, including who ran the Company. An example:

"As to whether I had 7,750 shares of the 10,000 shares of outstanding stock and had the right to control it, I had a stock interest in it. As to whether I actually participated in the running of Automated it would be hard to answer that question. Occasionally, I did see the books. I don't think I ever wrote any checks on the company. I don't know exactly how to answer the question as to whether I ever saw any checks written on the company. As to whether I ever checked the company books I observed some of the reports. I just don't remember how often I observed the reports.

Frank Wilson probably had something to do with running Automated in 1972 and 1973. I don't think Mr. Wilson was the one that ran the company from the time he came to Charlotte until at least 1974. As to whether during the time Automated has been in Charlotte anyone other than Frank Wilson has been in charge of running the company, I'd have to check the records.

* * * * * *

While the company was in Charlotte it did sell some disposal machines. I'd have to check the records to tell where these machines were purchased. I did have dealings with Leavesley Industries, Incorporated. They made some of the products that ADS sold at one time. I'd have to check the records to see how this relationship began. I did talk to someone that represented the company. I don't remember the specific details, what sort of dealings I had with any representative of that company. I'd have to check to see if I brought a lawsuit suing them for a million dollars for something I claimed they did wrong to me. I'd have to check to see if I ever brought a lawsuit against Leavesley Industries, Incorporated. I think that a company probably that I had an interest in may have brought a lawsuit but I don't know exactly the way you word things how to answer them. That lawsuit is not still pending. I suppose the lawsuit you have reference to has been settled. You would have to check with my attorney to see if I just took a dismissal in that lawsuit.

ADS did make some purchases from Leavesley. They purchased some equipment. I don't know how you would describe it. It was for use in the operation of ADS's activities. I'd have to check the records to see just what they did buy.. . .

I did know a Mr. Temel. I don't exactly remember where I met him. I don't even remember when it was or what it was. I have met him. I wouldn't say I have met him on a number of occasions, no, more than one.

As to what sort of business dealings I or any of my companies had with Mr. Temel, can you be more specific? Some companies that I have had interest in have had some transactions with Mr. Temel. I'd have to check the records to see what companies. I understand that ADS was one of them.

As to how I understand it, I understand from lawsuits that were brought that it had some dealings with them. It is my testimony that I had no dealings with Mr. Temel insofar as many business relationship with ADS is concerned. It is absolutely correct that I never talked with Mr. Temel at all about any business dealings he had with ADS. I don't know for sure who represented ADS in these business dealings.

I understand Mr. Frank Wilson had some dealings with Mr. Temel. My understanding is that Mr. Wilson on behalf of ADS sold some machines to Mr. Temel's company. I believe it is correct, that is, Temel-Peck Enterprises."

On the other hand, plaintiff produced a significant volume of evidence intended to show that Belk must have been involved in the scheme or at least ratified the fraud because of his control of Automated and his relationship with the purchaser Temel-Peck. It is, therefore, apparent that defendant Belk relies heavily upon his own deposition testimony and affidavit to support his motion for summary judgment. Because of the importance of these papers, the credibility of Belk becomes a key issue in this matter, and where credibility is a key issue, summary judgment is seldom an appropriate procedure for resolution of the matter. See generally 10 Wright and Miller, Federal Practice and Procedure: Civil § 2726 (1973).

The issue of credibility presents an issue of fact which, if material, should be left to the trier of fact. Here, not only does the defendant Belk's testimony on deposition, when indulgently regarded in favor of plaintiff, appear inherently incredible, but inferences reasonably capable of being drawn from plaintiff's evidentiary material place doubt upon the credibility of defendant Belk's deposition testimony and affidavit. Compare, Kidd v. Early, supra. We are of the opinion that reasonable inferences available from the plaintiff's materials and the issue of Belk's credibility present material questions of fact such as to prevent the entry of summary judgment.

In our opinion there is another basis for disapproving of the granting of summary judgment in the case. The existence of fraud necessarily involves a question concerning the existence of a fraudulent intent on the part of the party accused of such fraud. The intent of a party is a state of mind generally within the exclusive knowledge of that party and, by necessity, must be proved by circumstantial evidence. Summary judgment is generally inappropriate under such circumstances. See generally 10 Wright and Miller, Federal Practice and Procedure: Civil § 2730 (1973). This stance was taken by the United States Court of Appeals for the Third Circuit which concluded that summary judgment in favor of the movant in an action based upon a complex scheme of fraud should not be utilized to draw factual inferences in favor of the moving party and to resolve genuine issues of credibility, particularly "where intent is a substantive element of the cause of action because intent is generally to be inferred from the facts and conduct of the parties." Associated Hardware Supply Co. v. Big Wheel Distributing Company, 355 F.2d 114, 121 (3d Cir. 1966). See also Teledyne Industries, Inc. v. Eon Corp., 373 F. Supp. 191 (S.D.N.Y.1974). For the above reasons, we are of the opinion that the summary judgment in favor of defendants Henderson Belk and Henderson Belk Enterprises was improvidently granted.

Defendants' Appeal

Defendants have brought forward two assignments of error on cross-appeal, both of which are directed to the trial court's denial of their motion for dismissal of the complaint under G.S. 1A-1, Rule 12(b)(6). The grounds for the assignment of error are twofold.

The defendants first contend that plaintiff's allegations fail to state a claim for relief for fraud. Their reliance is based primarily on G.S. 1A-1, Rule 9(b) which provides:

"(b) Fraud, Duress, Mistake, Condition of the Mind.—In all averments of fraud, duress or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

This rule is in contrast to the notice pleading approach adopted upon the enactment of G.S. 1A-1, Rule 8(a), and is essentially a codification of our former case law with respect to pleading fraud. In re Estate of Loftin, 21 N.C.App. 627, 205 S.E.2d 574 (1974), affirmed, 285 N.C. 717, 208 S.E.2d 670 (1974). The purpose of the prior case law and the present G.S. 1A-1, Rule 9(b), is to require pleading of the facts upon which the plaintiff relies to establish the essential elements of fraud. As this Court found in In re Estate of Loftin, the facts alleged must be sufficient to support a finding of:

"The intent to deceive [Calloway v. Wyatt, 246 N.C. 129, 97 S.E.2d 881 (1957)]; the specific false representations that were made [Fulton v. Talbert, 255 N.C. 183, 120 S.E.2d 410 (1961)]; that the defrauded party relied upon the misrepresentations to his detriment [Products Corporation v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587 (1960)]." 21 N.C.App. at 631, 205 S.E.2d at 576.

We note that there are abundant allegations of specific facts along with general allegations of defendants' state of mind sufficient to state a cause of action for fraud. The trial court's denial of defendants' motion to dismiss was proper on this ground.

Defendants finally contend that the adjudication of this cause of action was precluded by the dismissal of a related action in the United States District Court for the Western District of North Carolina entitled "Trotter Leasing Corporation v. Automated Disposal Systems, Inc., Temel-Pack Enterprises, Inc., a/k/a Temel-Peck Enterprises Co., W. David Temel, David F. Peck, Cornelia A. Temel, David F. Peck, Caroline A. Peck, Adolfas Akelatis and Annabelle Akelatis". That action was dismissed under the Federal Rules of Civil Procedure, Rule 41(b), for failure to prosecute. Defendants contend that, because in both actions the issue of fraud is essentially the same, the defendants in each action are essentially the same, and the plaintiff in this action is in a position of "privity" with the plaintiff in the original action, Girard Trust Bank is collaterally estopped from re-litigating the fraud issue presented in the present suit.

We note initially that the principle of collateral estoppel does not apply to this case to preclude adjudication of the fraud issues. Collateral estoppel, a doctrine closely related to that of res judicata, precludes re-litigation only of issues necessarily determined in a prior adjudication between the same parties and those in privity to them. King v. Grindstaff, 284 N.C. 348, 200 S.E.2d 799 (1973); see generally 1B Moore's Federal Practice ¶ 0.405[1] (2d ed. 1974). Assuming, arguendo, the other prerequisites for establishing collateral estoppel, the judgment dismissing the action for failure to prosecute did not purport to determine the existence or non-existence of fraud. We, therefore, consider whether the action initiated against defendants was precluded under the doctrine of res judicata as applied in its technical sense. See Hartford Accident & Indemnity Company v. Levitt & Sons, Inc., 24 F.R.D. 230 (E.D.Pa.1959).

Res judicata operates to preclude a subsequent suit on the same cause of action between the same parties or their privies once final judgment has been entered in the initial action. King v. Grindstaff, supra. Plaintiff concedes that the dismissal of this action under Federal Rule 41(b) for failure to prosecute is a final judgment. See Kotakis v. Elgin, Joliet & Eastern Railway Co., 520 F.2d 570 (7th Cir. 1975); see generally 1B Moore's Federal Practice ¶ 0.409[1], nn. 34 and 35 (2d ed. 1974). We must, therefore, determine whether the remaining requirements for establishing res judicata exist to preclude plaintiff's action. We take note of the general principle that the application of res judicata must be narrowly construed and cannot be left to "uncertain inference". Gunter v. Winders, 253 N.C. 782, 785, 117 S.E.2d 787, 789 (1961).

A plea of res judicata is effective to preclude a subsequent action which is based on the same cause of action and between the same parties and privies. See King v. Grindstaff, supra. Plaintiff contends both that their suit is based on a different cause of action from the initial suit and that the parties to the suits are not the same. We agree that the parties are not the same and that, therefore, res judicata does not apply to preclude the action.

The concept of the identity of parties and their privies encompasses the requirement of mutuality of the estoppel by judgment.

"Thus, a party to the subsequent action, who was not a party to the former action and, therefore, is not estopped by the judgment therein, cannot assert that judgment as an estoppel against his opponent, even though the opponent was a party to the action in which the judgment was rendered." Kayler v. Gallimore, 269 N.C. 405, 407, 152 S.E.2d 518, 520 (1967); see generally 1B Moore's Federal Practice ¶ 0.412[1] (2d ed. 1974).

We cannot say that defendants Henderson Belk and Henderson Belk Enterprises, Inc., would have been bound by a judgment in the prior case. First, it is obvious that Henderson Belk Enterprises, Inc., was not a party to the prior suit nor was it an agent, officer, director, or shareholder of the defendant Automated. We have been cited to no authority which would support a finding that Henderson Belk Enterprises, Inc., would be bound by a judgment against Automated solely because of the existence of common ownership between the two corporations. This leaves us with the question whether Henderson Belk, personally, would have been bound by a judgment rendered in favor of the plaintiff in the initial action.

The allegations in the initial action alleged fraudulent representations by Automated, and, in contrast to the action sub judice, contained no allegations of involvement by the individual defendant Belk. In determining whether a judgment against a corporate entity binds one who controls the corporation, the late Justice Parker of our Supreme Court in Lumber Co. v. Hunt, 251 N.C. 624, 627, 112 S.E.2d 132, 134-35 (1960), observed:

"A corporation is an entity distinct from its shareholders, and the corporate entity is distinct, although all of its stock is owned by a single individual or corporation. 13 Am.Jur., Corporations, Sec. 6. To the same effect N.C.G.S. 55-3.1. F. L. Taylor has only a contingent derivative right of succession of property interest, with the other stockholders, from the Troy Lumber Company so far as the present suit for damages is concerned. The admission that F. L. Taylor is the controlling stockholder of Troy Lumber Company, is chairman of its board of directors, its president, and has complete charge of its operations and business, is insufficient to establish identity or privity between him and the corporation for the purposes of res judicata."

The prior action initiated by Trotter Leasing Corporation alleged no fraudulent conduct on the part of Belk individually; and, in the absence of allegations and proof of actual fraudulent conduct by a corporate shareholder, officer, or director, or ratification and adoption of such conduct, an officer, director, or stockholder generally may not be held liable for the acts of the corporation. Cf. Henderson v. Finance Co., 273 N.C. 253, 160 S.E.2d 39 (1968); see generally 19 C.J.S. Corporations § 850; 19 Am. Jur.2d, Corporations § 1384.

The denial of defendants' motion to dismiss the complaint is affirmed, and the entry of summary judgment in favor of defendants is reversed.

Affirmed in part; reversed in part.

CLARK and ARNOLD, JJ., concur.