Am. Mech., Inc. v. Bostic

782 S.E.2d 344, 245 N.C. App. 133, 2016 WL 385477
CourtCourt of Appeals of North Carolina
DecidedFebruary 2, 2016
DocketNos. COA15–385; COA15–422; COA15–525.
StatusPublished
Cited by9 cases

This text of 782 S.E.2d 344 (Am. Mech., Inc. v. Bostic) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Am. Mech., Inc. v. Bostic, 782 S.E.2d 344, 245 N.C. App. 133, 2016 WL 385477 (N.C. Ct. App. 2016).

Opinion

DAVIS, Judge.

*134The issue in these three consolidated appeals is whether a party's submission of a notice of appeal to the North Carolina Business Court ("the Business Court") through its electronic filing system complies with Rule 3 of the North Carolina Rules of Appellate Procedure. American Mechanical, Inc., ("American Mechanical"), Yates Construction Company, Inc. ("Yates Construction"), and Phillips and Jordan, Inc. ("Phillips and Jordan") (collectively "Plaintiffs") appeal from three orders entered by the Honorable Louis A. Bledsoe, III dismissing each of their appeals. After careful review, we affirm.

Factual Background

These three appeals all arose out of allegations that Bostic Construction, Inc. ("Bostic Construction") and its corporate officers misused and fraudulently misappropriated loans that the company had *135obtained in connection with various construction projects. Because the appeals involve common issues of law and fact, we have consolidated them pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure.

Bostic Construction was a construction management company that primarily focused on the development and construction of apartment complexes and other multi-residential dwellings located near college campuses. It relied on subcontractors to supply labor and materials for its construction projects, delegating substantial portions of the construction to its subcontractors while maintaining overall management responsibility for the projects.

In 2003 and 2004, the company's financial well-being began to deteriorate substantially, and in 2005, Bostic Construction was placed into involuntary bankruptcy by its creditors. Plaintiffs are licensed contractors who performed subcontracting work on various apartment projects for Bostic Construction and were each listed as creditors of the company in the bankruptcy proceeding.

Following the settlement of the bankruptcy case, Plaintiffs each filed separate civil complaints against Jeffrey L. Bostic, Joseph E. Bostic, Jr.1 , Melvin Morris, Tyler Morris, and Michael Hartnett (collectively "Defendants"), who served as Bostic Construction's corporate officers. In their complaints, Plaintiffs alleged that Defendants had engaged in a "common scheme to commingle, misuse, and misappropriate the construction loans provided to finance the construction projects" at issue by making "preferential payments out of the construction loan proceeds for their own personal benefit" rather than utilizing the loan proceeds to fund the construction costs and pay the subcontractors for labor and materials. Plaintiffs alleged that Defendants had engaged in these practices while Bostic Construction was "on the verge of insolvency so as to amount to a dissolution" of the company. In their complaints, each Plaintiff asserted a constructive fraud claim against Jeffrey L. Bostic and Melvin Morris and an aiding and abetting constructive fraud claim against all Defendants. In its complaint, Phillips and Jordan also brought an unfair trade practices claim against all Defendants.

Each of these lawsuits was designated a mandatory complex business case pursuant to N.C. Gen.Stat. § 7A-45.4 and assigned to the *136Honorable Calvin E. Murphy. Defendants subsequently filed motions to dismiss each of Plaintiffs' complaints pursuant to Rules 12(b)(1) and (6) of the North Carolina Rules of Civil Procedure.

On 1 June 2012, Judge Murphy entered an order in the action brought by Phillips and Jordan determining that (1) Bostic Construction's bankruptcy settlement did not prevent Phillips and Jordan from bringing its direct claims against the company's officers; (2) Phillips and Jordan's allegations in support *346of its constructive fraud claim sufficiently stated a claim for relief; (3) its cause of action for aiding and abetting constructive fraud was legally deficient; and (4) its unfair trade practices claim was barred by the statute of limitations.

For these same reasons, Judge Murphy entered orders in the other two actions in January 2013 dismissing the aiding and abetting constructive fraud claims of American Mechanical and Yates Construction and allowing their constructive fraud claims to proceed. Because the claim for aiding and abetting constructive fraud was the only cause of action brought against Tyler Morris and Michael Hartnett, Judge Murphy's orders dismissing this claim effectively removed them as parties from the three lawsuits.

In May 2013, Plaintiffs voluntarily dismissed their constructive fraud claims against Melvin Morris. As a result, Plaintiffs' constructive fraud claims against Jeffrey L. Bostic were the only remaining matters for resolution. On 19 and 20 June 2013, Jeffrey L. Bostic filed motions for summary judgment in each of Plaintiffs' three cases. Judge Murphy heard the motions on 17 December 2013 and in May 2014 entered orders granting summary judgment in his favor with regard to each of the constructive fraud claims asserted against him.

Plaintiffs each submitted a notice of appeal through the Business Court's electronic filing system seeking review of Judge Murphy's orders on the motions to dismiss and motions for summary judgment (collectively "Judge Murphy's Orders"). Plaintiffs did not file their notices of appeal with the clerks of court of the counties where the actions had been filed until approximately three months after the summary judgment orders were entered.

Jeffrey L. Bostic and Michael Hartnett moved to dismiss Plaintiffs' appeals in each of the three cases for failure to comply with the requirements of Rule 3 of the Appellate Rules, and Judge Bledsoe entered orders on 8 and 9 October 2014 (collectively "Judge Bledsoe's Orders") granting the motions and dismissing Plaintiffs' appeals. Plaintiffs filed their notices of appeal from Judge Bledsoe's Orders on 29 October 2014.

*137Analysis

I. Petitions for Certiorari

Our appellate courts have explained on multiple occasions that "[n]o appeal lies from an order of the trial court dismissing an appeal for failure to perfect it within apt time, the proper remedy to obtain review in such case being by petition for writ of certiorari." State v. Evans, 46 N.C.App. 327, 327, 264 S.E.2d 766, 767 (1980) ; see also Lightner v. Boone, 221 N.C. 78, 84, 19 S.E.2d 144

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Bluebook (online)
782 S.E.2d 344, 245 N.C. App. 133, 2016 WL 385477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/am-mech-inc-v-bostic-ncctapp-2016.