Sloan v. InoLife Techs., Inc., 2018 NCBC 122.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FORSYTH COUNTY 17 CVS 306
BIZROBE TRUST, BY ITS TRUSTEE DOUBLEBENT, LLC,
Plaintiff,
v.
INOLIFE TECHNOLOGIES, INC.; MANHATTAN TRANSFER REGISTRAR COMPANY; MTRCO, INC.; and JOHN CHARLES AHEARN, III,
Defendants.
-and-
INOLIFE TECHNOLOGIES, INC., ORDER AND OPINION Third-Party ON PLAINTIFF BIZROBE Plaintiff, TRUST’S MOTION FOR SUMMARY JUDGMENT v.
GARY BERTHOLD,
Third-Party Defendant.
N3GU CAPITAL LTD.,
Third-Party Plaintiff,
GARY BERTHOLD, Third-Party Defendant.
RANDALL LANHAM and 8687544 CANADA, INC.
Third-Party Defendants.
1. THIS MATTER is before the Court on Plaintiff Bizrobe Trust’s (“Bizrobe”)
Motion for Summary Judgment (the “Motion”). (ECF No. 72 [“Mot.”].) Having
considered the Motion, the briefs, and the arguments of counsel at a hearing on the
Motion, the Court DENIES the Motion.
Norman L. Sloan, for Plaintiff.
Higgins Benjamin, PLLC, by Gilbert J. Andia, Jr., for Defendants.
Robinson, Judge.
I. FACTUAL BACKGROUND
2. The Court does not make findings of fact when ruling on motions for
summary judgment. E.g., In re Estate of Pope, 192 N.C. App. 321, 329, 666 S.E.2d
140, 147 (2008). The following factual background, taken from the undisputed
evidence submitted in support of and in opposition to the Motion, is intended solely
to provide context for the Court’s analysis and ruling. 3. Defendant InoLife Technologies, Inc. (“InoLife” or the “Corporation”) is a
New York corporation with its principle place of business in California. (Am. Compl.
¶ 8, ECF No. 24; Answer & Countercl. & Third-Party Claim ¶ 8, ECF No. 31
[“Answer”/ “Countercl. & Third-Party Compl.”].)
4. Defendant Manhattan Transfer Registrar Company (“Manhattan
Transfer”) is a Colorado corporation with its principle place of business in Colorado.
(Am. Compl. ¶ 9; Answer ¶ 9.) Several filings related to InoLife’s stock appear on
Manhattan Transfer’s transaction journal. (See, e.g., Aff. of Gary S. Berthold Exs. 5,
M, ECF No. 74 [“Berthold Aff.”].)
5. Defendant John Charles Ahearn, III (“Ahearn”) is a citizen and resident of
Boulder, Colorado and is affiliated with Manhattan Transfer. (Am. Compl. ¶ 11;
Answer ¶ 11; see Berthold Aff. ¶ 8.)
6. Defendant MTRCO, Inc. was a Colorado corporation with its principal place
of business in Colorado but was voluntarily dissolved on December 31, 2016. (See
Am. Compl. ¶ 10; Answer ¶ 10.)
7. Third-Party Defendant/Plaintiff Gary S. Berthold (“Berthold”) was the CEO
and President of InoLife from November 2009 to February 29, 2016, when he
resigned. (Berthold Aff. ¶ 3.) Berthold was formerly the majority shareholder of
InoLife. (Aff. of Kenneth J. Beam ¶ 5, ECF No. 19.2 [“Beam Aff.”]; Aff. of Randall J.
Lanham ¶ 8, ECF Nos. 19.3, 19.5, 19.6 [“Lanham Aff.”].) 8. Bizrobe is purportedly a North Carolina trust.1 (Am. Compl. ¶ 7.) Bizrobe’s
trustee, Doublebent, LLC, is a North Carolina limited liability company. (Beam Aff.
¶ 20, Ex. 1.)
9. On February 4, 2014, Berthold, as CEO of InoLife, filed a Certificate of
Amendment of the Certificate of Incorporation of InoLife with the New York State
Department of State Division of Corporations (the “Certificate of Amendment”).
(Berthold Aff. Ex. 1 [“Certificate of Amendment”].) The Certificate of Amendment, in
pertinent part, designated a class of stock of InoLife as Series D Preferred Stock
having 10,000,000 shares authorized at $0.00001 par value per share. (Certificate of
Amendment § 2(D)(1).) The Certificate of Amendment further provided that:
[e]ach share of SERIES D Preferred Stock shall be convertible, at any time, and/or from time to time, into the number of shares of the Corporation’s Common Stock, par value $0.00001 per share, equal to the price of the SERIES D Preferred Stock, divided by the par value of the Common Stock, subject to adjustment as may be determined by the Board of Directors from time to time (the “Conversion Rate”). . . . Such conversion shall be deemed to be effective on the business day (the “Conversion Date”) following the receipt by the Corporation of written notice from the holder of the SERIES D Preferred Stock of the holder’s intention to convert the shares of SERIES D Stock [sic], together with the holder’s stock certificate or certificates evidencing the SERIES D Preferred Stock to be converted.
(Certificate of Amendment § 2(D)(4)(a).)
1 The record evidence is unclear as to Bizrobe’s status. Bizrobe alleges that it is a North Carolina trust. (Am. Compl. ¶ 7.) Defendants, lacking knowledge or information as to Bizrobe’s status, deny the allegation. (Answer ¶ 8.) The record otherwise lacks conclusive evidence as to when Bizrobe was created or its current status. Defendants, however, contend that Bizrobe is owned or controlled by Berthold. (Lanham Aff. ¶ 26.) Regardless, Bizrobe’s current status is not dispositive as to the Court’s determination of the Motion. 10. The Certificate of Amendment further provided that “promptly after the
Conversion Date, the Corporation shall issue and deliver to such holder a certificate
or certificates for the number of full shares of Common Stock issuable to the holder
pursuant to the holder’s conversion of SERIES D Preferred Shares.” (Certificate of
Amendment § 2(D)(4)(b).) The price of each share of Series D Preferred Stock was set
at $5.00 per share. (Certificate of Amendment § 2(D)(7)(a).) It is unclear who, if
anyone, at the time the Certificate of Amendment was filed (February 4, 2014), held
any of InoLife’s Series D Preferred Stock, however, a December 21, 2015 InoLife
account statement indicates that 10,000,000 of the shares were issued to Berthold on
January 27, 2015, and that he continued to hold the shares as of December 21, 2015.
(Berthold Aff. Ex. 4.)
11. On January 12, 2016, Ahearn and Manhattan Transfer received from
Berthold an Irrevocable Stock or Bond Power, dated December 16, 2015, which stated
that, “[f]or [v]alue [r]eceived,” Berthold “does . . . hereby sell, assign, and transfer to”
Bizrobe “10,000,000 Series D Preferred Shares in Gary S. Berthold [sic] name[.]” (Aff.
Berthold Ex. 5, at 1, 2.) Additionally, a February 29, 2016 Manhattan Transfer
transaction journal entry shows a transfer on that date from Berthold to Bizrobe of
10,000,000 shares of InoLife Series D Preferred Stock with certificate number PD 2.
(See Aff. Berthold Ex. 5, at 3; see also Aff. Berthold Ex. M.)
12. On October 18, 2016, Norman L. Sloan, on behalf of Bizrobe as its attorney,
requested in writing to Michael G. Wright, then-CEO of InoLife, and Ahearn, that
InoLife convert 10,000,000 shares of its Series D Preferred Stock into 5,000,000,000,000 shares of InoLife common stock. (Berthold Aff. Ex. 8.) The request
for conversion does not reference any certificates held by Bizrobe for the Series D
Preferred Stock nor does it attach the certificate denominated “PD 2” on the February
29, 2016 Manhattan Transfer transaction journal entry. (See Berthold Aff. Ex. 8.)
Ten days later, on October 28, 2016, Lanham, as InoLife’s attorney, responded and
denied Bizrobe’s request, stating that InoLife “does not have records of Bizrobe . . . as
a shareholder . . .[,] there is no valid issuance of Preferred Series D Stock, and we
confirm that there are no Preferred Series D issued and[/]or outstanding.” (Berthold
Aff. Ex. 9.)
II. PROCEDURAL BACKGROUND
13. The procedural history of this action is complex. The Court sets forth only
that procedural background relevant to the Motion.
14. Bizrobe, along with Plaintiffs Norman L. Sloan (“Sloan”), John T. Root
(“Root”), Candance A. Trumbull (“Trumbull”), Nick Plessas (“Plessas”), Candance
Wernick (“Wernick”), and Woneeya Thundering Hawk (“Thundering Hawk”)
(collectively, “Plaintiffs”), initiated this action by filing the Complaint on January 17,
2017.2 (ECF No. 1 [“Compl.”].)
2 Bizrobe is the only remaining plaintiff in this action. Plessas filed a notice of voluntary dismissal with prejudice on March 13, 2017. (ECF No. 26.) Following the death of Sloan, the Court granted the Estate of Norman L. Sloan’s (“Estate of Sloan”) motion to substitute as a party plaintiff for Sloan. (ECF No. 106.) On August 2, 2017, the Estate of Sloan, Root, Trumbull, Wernick, and Thundering Hawk voluntarily dismissed with prejudice their claims against Defendants, and InoLife voluntarily dismissed with prejudice its counterclaims against Trumbull. (ECF No. 116.) 15. The Complaint sought a declaration ordering Defendants to convert certain
shares of InoLife preferred stock to InoLife common stock and issue such shares of
common stock to Plaintiffs along with stock certificates. (Compl. ¶ 34.) The
Complaint also requested a temporary restraining order and preliminary injunction
preventing Defendants from interfering with or harming Plaintiffs’ stock ownership
in InoLife during the course of this litigation. (Compl. ¶ 11.)
16. This case was designated as a mandatory complex business case by order
of the Chief Justice of the Supreme Court of North Carolina dated January 19, 2017,
(ECF No. 4), and assigned to the undersigned on the same day by order of then-Chief
Business Court Judge James L. Gale, (ECF No. 5).
17. Following a hearing on February 3, 2017, the Court denied Plaintiffs’
motion for preliminary injunction on February 9, 2017. (Order on Pls.’ Mot. for
Prelim. Injunction ¶ 41, ECF No. 21 [“Order”].) The Court concluded that Plaintiffs
had failed to show a likelihood of success on their claim for declaratory judgment
because, inter alia, the unauthenticated exhibits submitted in support of the motion
for preliminary injunction were devoid of evidence (1) that Plaintiffs paid any
consideration for their purported shares of InoLife stock; (2) that Plaintiffs produced
to InoLife their stock certificates evidencing their shares of InoLife stock when
making their request for conversion of such shares; and (3) that InoLife’s shares are
uncertificated. (Order ¶¶ 34–38; see Order ¶¶ 16, 18–19.)
18. On March 7, 2017, Plaintiffs filed their Amended Complaint, as of right,
pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure (“Rule(s)”), again asserting the claim for declaratory judgment, along with several other claims
not at issue on this Motion. (See Am. Compl. 10–15.)
19. On April 6, 2017, Defendants filed their Answer and Counterclaim and
Third-Party Claim, denying the allegations and asserting counterclaims against
Trumbull for fraud, unjust enrichment, and conspiracy. (See Countercl. & Third-
Party Compl. 20–22.) InoLife also asserts third-party claims against Berthold,
including a claim for breach of fiduciary duty and constructive fraud, alleging that,
inter alia, Berthold “purport[ed] to issue stock to himself and to others for insufficient
consideration and improper purposes[.]” (Countercl. & Third-Party Compl. ¶ 67.)
20. Bizrobe filed the Motion on November 16, 2017, seeking summary judgment
in its favor on its claim for declaratory judgment.
21. On February 19, 2018, the Court stayed all proceedings in this action for
sixty days upon learning that Sloan, who also served as counsel for all Plaintiffs, had
died the previous day. (ECF No. 97.) Since Sloan’s death, no counsel has made an
appearance on behalf of Bizrobe (or Doublebent), and counsel for the remaining
parties have informed the Court they do not represent Bizrobe.
22. The Court held a hearing on the Motion on September 18, 2018, at which
Defendants were represented by counsel.3 Although Defendants’ counsel served the
3 At the hearing on the Motion, Defendants’ counsel orally moved for summary judgment in
favor of Defendants, based on the pleadings and record, pursuant to N.C. Gen. Stat. § 1A-1, Rule 56(c). Defendants made no such argument in their brief in opposition to the Motion, nor did they file a separate motion to that effect with the Court prior to the hearing. Rule 7.2 of the General Rules of Practice and Procedure for the North Carolina Business Court (“BCR”) requires that “[a]ll motions must be made in electronic form and must be accompanied by a brief (except for those motions listed in Rule 7.10).” Motions pursuant to Rule 56 are not among those listed in BCR 7.10. At the hearing, the Court denied Defendants’ Notice of Hearing on Bizrobe and its trustee, Doublebent, (ECF No. 121), no counsel
made an appearance for either of those entities at the September 18 hearing.
23. The Motion is ripe for determination.
III. LEGAL STANDARD
24. Summary judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that any party is entitled
to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c). “A ‘genuine
issue’ is one that can be maintained by substantial evidence.” Dobson v. Harris, 352
N.C. 77, 83, 530 S.E.2d 829, 835 (2000).
25. The moving party bears the burden of showing that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law.
Hensley v. Nat’l Freight Transp., Inc., 193 N.C. App 561, 563, 668 S.E.2d 349, 351
(2008). “Once the party seeking summary judgment makes the required showing, the
burden shifts to the nonmoving party to produce a forecast of evidence demonstrating
specific facts, as opposed to allegations, showing that he can at least establish a prima
facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784–85, 534 S.E.2d 660,
664 (2000). The Court must view the evidence in the light most favorable to the
nonmovant. See Dobson, 352 N.C. at 83, 530 S.E.2d at 835. However, the nonmovant
“may not rest upon the mere allegations or denials of [its] pleading, but [its] response,
oral motion without prejudice to Defendants’ ability to file such a motion in accordance with the BCRs. As of the date of this Order and Opinion, Defendants have not filed any such motion. by affidavits or as otherwise provided in this [R]ule, must set forth specific facts
showing that there is a genuine issue for trial. If [the nonmovant] does not so
respond, summary judgment, if appropriate, shall be entered against [the
nonmovant].” N.C. Gen. Stat. § 1A-1, Rule 56(e).
26. Where, as here, “the party with the burden of proof moves for summary
judgment, a greater burden must be met.” Almond Grading Co. v. Shaver, 74 N.C.
App. 576, 578, 329 S.E.2d 417, 418 (1985). The movant “must show that there are no
genuine issues of fact, that there are no gaps in [the movant’s] his proof, that no
inferences inconsistent with [the movant’s] recovery arise from the evidence, and that
there is no standard that must be applied to the facts by the jury.” Parks Chevrolet,
Inc. v. Watkins, 74 N.C. App. 719, 721, 329 S.E.2d 728, 729 (1985); see also Kidd v.
Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976) (same). For that reason, it is
“rarely . . . proper to enter summary judgment in favor of the party with the burden
of proof.” Blackwell v. Massey, 69 N.C. App. 240, 243, 316 S.E.2d 350, 352 (1984).
IV. ANALYSIS
27. Bizrobe seeks an order from the Court as follows:
(a) [d]eclaring that . . . [InoLife], [Manhattan Transfer], MTRCO, and [Ahearn], individually, and as President of [Manhattan Transfer] to [sic] make the conversion of the . . . Series D preferred Shares of stock[;] and[]
(b) [t]hat such shares be issued to [Bizrobe], . . . as paper stock certificates for common shares of [InoLife] stock, and provide [sic] these stock certificates for common shares of [InoLife], and any digitizing of the shares, to [Bizrobe], in accordance with [its] ownership interest[.]4
4 Although Bizrobe seeks a judicial declaration as to all Defendants, (Am. Compl. ¶ 42), it
moves for summary judgment only against InoLife, (Mot. 1). (Am. Compl. ¶ 42.)
28. Under the North Carolina Declaratory Judgment Act (the “Act”), “[a]ny
person . . . whose rights, status or other legal relations are affected by a statute,
municipal ordinance, contract or franchise, may have determined any question of
construction or validity arising under the . . . statute, ordinance, contract or franchise,
and obtain a declaration of rights, status, or other legal relations thereunder.” N.C.
Gen. Stat. § 1-254. “The purpose of the [Act] is to settle and afford relief from
uncertainty concerning rights, status and other legal relations . . . .” N.C. Consumers
Power, Inc. v. Duke Power Co., 285 N.C. 434, 446, 206 S.E.2d 178, 186 (1974). A court
may render judgment declaring the rights and liabilities of the respective parties, and
affording relief to which the parties are entitled under the judgment, when: (1) “a real
controversy exists between or among the parties”; (2) “such controversy arises out of
[the parties’] opposing contentions”; and (3) the parties “have or may have legal
rights, or are or may be under legal liabilities [that] are involved in the controversy,
and may be determined by a judgment or decree in the action[.]” Id. at 449, 206
S.E.2d at 188.
29. “North Carolina courts have held that summary judgment is an appropriate
procedure in an action for declaratory judgment.” Medearis v. Trs. of Meyers Park
Baptist Church, 148 N.C. App. 1, 4, 558 S.E.2d 199, 202 (2001) (citing Frank H.
Conner Co. v. Spanish Inns Charlotte, 294 N.C. 661, 676, 242 S.E.2d 785, 794 (1978);
Montgomery v. Hinton, 45 N.C. App. 271, 273, 262 S.E.2d 697, 698 (1980)). “Summary
judgment may be entered upon the motion of either the plaintiff or the defendant under Rule 56 . . ., and the Rule applies in an action for declaratory judgment.”
Bellefonte Underwriters Ins. Co. v. Alfa Aviation, Inc., 61 N.C. App. 544, 547, 300
S.E.2d 877, 879 (1983) (citing Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d
35, 42 (1972)); see also Hejl v. Hood, Hargett & Assocs., 196 N.C. App. 299, 302–03,
674 S.E.2d 425, 427–28 (2009) (same).
30. InoLife is a New York corporation. (Am. Compl. ¶ 8; Answer ¶ 8.)
Accordingly, pursuant to the internal affairs doctrine, New York law applies to
Bizrobe’s claim that it is entitled to conversion of its Series D Preferred Stock into
common stock, and the parties do not argue otherwise. See Bluebird Corp. v. Aubin,
188 N.C. App. 671, 680, 657 S.E.2d 55, 63 (2008) (“The internal affairs doctrine is a
conflict of laws principle which recognizes that only one State should have the
authority to regulate a corporation’s internal affairs—matter peculiar to the
relationships among or between the corporation and its current officers, directors,
and shareholders—because otherwise a corporation could be faced with conflicting
demands.” (quoting Edgar v. MITE Corp., 457 U.S. 624, 645 (1982))).
31. Bizrobe contends that the evidence of record—the books and records of
InoLife and Manhattan Transfer—shows that there is no genuine dispute as to
Bizrobe’s ownership of the 10,000,000 shares of InoLife Series D Preferred Stock. (Br.
Supp. Pl.’s Mot. for Summ. J. 9, ECF No. 73 [“Br. Supp.”].) Specifically, Bizrobe
argues that the fact that it has not put before the Court stock certificates for the
Series D Preferred Stock does not preclude summary judgment in its favor because,
under New York law, the “stock books and books of account” of InoLife are “presumptive evidence” of Bizrobe’s ownership of the shares. (Br. Supp. 10 (quoting
Davis v. Fraser, 121 N.E.2d 406, 409 (N.Y. 1954)).) Accordingly, Bizrobe contends, it
is entitled as a matter of law to a judgment requiring conversion by InoLife of
Bizrobe’s Series D Preferred Stock into shares of InoLife common stock in accordance
with the Certificate of Amendment. (Br. Supp. 11–12.)
32. Defendants respond that Bizrobe has failed to meet its burden of showing
the absence of a genuine issue of material fact as to its entitlement to the declaration
it seeks for the same reasons the Court denied the motion for preliminary injunction.
(Mem. L. Opp’n to Pl.’s Mot. for Summ. J. 5–6, ECF No. 98 [“Mem. Opp’n”]; see Order
¶¶ 34–38.) Defendants contend that Bizrobe has put forward no evidence that the
shares of Series D Preferred Stock were issued to Berthold or transferred by Berthold
to Bizrobe for “good and sufficient consideration”; that Bizrobe submitted certificates
evidencing its Series D Preferred Stock when requesting conversion, as required by
the Certificate of Amendment; and that InoLife adopted a resolution allowing the
Series D Preferred Stock to be uncertificated. (Mem. Opp’n 6–8.)
33. Regarding Bizrobe’s ownership of the Series D Preferred Stock, Bizrobe’s
argument misses the mark. As Defendants correctly point out, the issue is “not
whether [InoLife’s or Manhattan Transfer’s] records show that Bizrobe . . . has
10,000,000 [shares] of Series D Preferred [Stock] ‘on the books[,]’” but, rather, it is
whether the shares were issued to Berthold, and then transferred to Bizrobe, for good
and sufficient consideration. (Mem. Opp’n 6.) Under New York law, consideration,
whether in the form of money, other property, or services, is required for the issuance of shares of a corporation. N.Y. Bus. Corp. § 504(a); see Heisler v. Gingras, 687 N.E.2d
1342, 1344 (N.Y. 1997); KNET, Inc. v. Ruocco, 45 N.Y.S.3d 126, 128 (N.Y. App. Div.
2016). The consideration for par value stock cannot be less than the stock’s par value.
N.Y. Bus. Corp. § 504(c); see Frankowski v. Palermo, 363 N.Y.S.2d 159, 160 (N.Y. App.
Div. 1975). Furthermore, certificates for par value shares may not be issued until
consideration equal to the par value of such shares is received. See N.Y. Bus. Corp.
§§ 504(h).
34. Here, there is no evidence in the record before the Court that the shares of
Series D Preferred Stock purportedly issued to Berthold were issued for consideration
equaling not less than the par value of the shares. Indeed, none of the exhibits
attached in support of the Motion indicate for what consideration, if any, the shares
were issued to Berthold such that he could have properly transferred them to Bizrobe.
The evidence suggests only that 10,000,000 shares of InoLife Series D Preferred Stock
were issued to Berthold on January 27, 2015, that he continued to hold the shares as
of December 21, 2015, and then attempted to transfer them to Bizrobe on February
29, 2016. (Berthold Aff. Exs. 4, 5, at 3, M; see also Lanham Aff. ¶ 36.)
35. Furthermore, even if Bizrobe’s evidence conclusively established that it
owned shares of InoLife Series D Preferred Stock that were issued for sufficient
consideration, Bizrobe must also show that it complied with the requirements for
conversion of those shares to common stock. The Certificate of Amendment states
that a holder of InoLife Series D Preferred Stock may request conversion by written
notice “of the holder’s intention to convert the shares” to common stock, “together with the holder’s stock certificate or certificates evidencing the SERIES D Preferred Stock
to be converted.” (Certificate of Amendment § 2(D)(4)(a) (emphasis added).)
Moreover, under New York law, “[t]he shares of a corporation shall be represented by
certificates or shall be uncertificated shares.” N.Y. Bus. Corp. § 508(a). A
corporation’s board of directors may provide by resolution that a class or series of its
shares shall be uncertificated shares. Id. § 508(f).
36. Although the attempted February 29, 2016 transfer of shares to Bizrobe
references a certificate number PD 2, there is no evidence in the record before the
Court that, when making its request for conversion, Bizrobe produced to InoLife any
stock certificate evidencing the shares of Series D Preferred Stock to be converted.
Bizrobe implicitly admits that it does not possess such certificates. (See Br. Supp. 9–
10; see also Lanham Aff. ¶ 36.) Furthermore, there is nothing in the record before
the Court that shows the Board of Directors ever adopted a resolution providing that
InoLife’s Series D Preferred Stock shall be uncertificated shares. Accordingly,
Bizrobe has not shown that its request for conversion was in compliance with the
Certificate of Amendment.
37. To carry its burden on a motion for summary judgment on a claim for which
Bizrobe bears the burden of proof, Bizrobe must show that “there are no genuine
issues of fact, [and] that there are no gaps in [its] proof[.]” Parks Chevrolet, 74 N.C.
App. at 721, 329 S.E.2d at 729; see Kidd, 289 N.C. at 370, 222 S.E.2d at 410. Bizrobe
has failed to do so. The evidence Bizrobe submitted in support of the Motion fails to
prove essential elements of its claim for declaratory judgment. In the Court’s order denying the motion for preliminary injunction, the Court pointed out the evidentiary
deficiencies relating to Bizrobe’s claim for declaratory judgment. (See Order ¶¶ 34–
38.) Yet, the evidence submitted in support of the Motion is essentially the same
evidence Bizrobe submitted in support of its motion for preliminary injunction. (See
Order ¶¶ 34–38.) Where the evidence of record is insufficient to support the issuance
of a preliminary injunction on the element of likelihood of success on the merits, it is,
a fortiori, insufficient to support a grant of summary judgment in favor of a party on
its own claim. See Lohrman v. Iredell Mem’l Hosp., Inc., 174 N.C. App. 63, 75, 620
S.E.2d 258, 265 (2005) (“The burden of proof required to support a preliminary
injunction is less than that required for a motion for summary judgment[.]”).
38. Therefore, the Motion must be denied.
V. CONCLUSION
THEREFORE, for the reasons stated herein, the Motion is DENIED.
SO ORDERED, this the 30th day of November, 2018.
/s/ Michael L. Robinson Michael L. Robinson Special Superior Court Judge for Complex Business Cases