Vanek v. Global Supply & Logistics, Inc.

• Court: Court of Appeals of North Carolina
• Decided: April 1, 2014
• Docket: 13-1135
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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 -3- 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 -4- 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 -5- 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”). -6- 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, -7- 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 -8- 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 -9- 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 at

75 (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)). -10- 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 -11- 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

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 -12- 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 -13- 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 -14- 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).