White v. Thompson

691 S.E.2d 676, 364 N.C. 47, 2010 N.C. LEXIS 349
CourtSupreme Court of North Carolina
DecidedApril 15, 2010
Docket226A09
StatusPublished
Cited by92 cases

This text of 691 S.E.2d 676 (White v. Thompson) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Thompson, 691 S.E.2d 676, 364 N.C. 47, 2010 N.C. LEXIS 349 (N.C. 2010).

Opinions

NEWBY, Justice.

This case presents the question whether the General Assembly intended unfair or deceptive conduct among partners contained solely within a single business to be “in or affecting commerce” such that a partner’s breach of his fiduciary duty owed to his fellow partners violates North Carolina’s unfair and deceptive practices act (“the Act”), N.C.G.S. § 75-1.1. With the Act our General Assembly sought to prohibit unfair or deceptive conduct in interactions [48]*48between different market participants. The General Assembly did not intend for the Act to regulate purely internal business operations. In the present case the breaching partner’s unfair conduct was solely within a single partnership. Accordingly, we hold that his action is not “in or affecting commerce” as that term is used in N.C.G.S. § 75-1.1 and that such conduct is therefore not a violation of the Act. As such, we affirm the decision of the Court of Appeals.

Plaintiffs Charles White and Earl Ellis, along with defendant Andrew Thompson, were partners in an entity known as Ace Fabrication and Welding (“ACE”). The partners formed ACE in October of 2000 primarily for the purpose of performing specialty construction and fabrication work at a plant in Bladen County operated by Smithfield Packing Company, Inc. The three men agreed that each would own one-third of ACE, and each would also receive an hourly wage from ACE for the work each partner actually performed. Shortly after forming ACE, the men acquired certain assets needed to operate their business, including the necessary insurance policies and billing and advertising materials. Also, the partners hired defendant Douglas Thompson, defendant Andrew Thompson’s father, as ACE’s accountant.

The Smithfield Packing plant at which ACE sought to work used a bidding system to award jobs to either ACE or one of the “five or six” other subcontractors performing specialty fabrication work in the plant. Defendant Andrew Thompson testified that Smithfield Packing would inform those interested in working in the plant of the available jobs. According to him, the three partners would evaluate the available job and then submit ACE’s bid to the appropriate individual at Smithfield Packing. Barry White, an employee of Smithfield Packing, testified regarding the bidding process. Barry White stated that although four different individuals must approve purchase orders for jobs to be performed by outside subcontractors, all four individuals are “not necessarily [approving] who gets the job.” Barry White “approve[d] the way [the purchase order had] been coded”; the “plant engineer and plant superintendent” approved the firm selected to complete the job; and the “plant manager . . . basically [ensured that the] money’s being paid.”

From the testimony presented at trial, it appears that ACE enjoyed initial success. Defendant Andrew Thompson testified that ACE won its first job roughly a week after it began submitting bids. Plaintiff White presented similar evidence, explaining that ACE successfully submitted bids and performed work at Smithfield Packing [49]*49from late October of 2000 until January of 2001. However, ACE’s initial success eventually fell victim to disagreements and infighting among the partners.

The partners described to the jury their disagreements while involved with ACE. Plaintiff White testified that defendant Andrew Thompson misinformed him of some days on which ACE was scheduled to perform specific jobs. Plaintiff White further explained that defendant Andrew Thompson “had a little small crew that he liked to buddy with that he had hired” despite the partners’ agreement that “any work was supposed to go between the three [partners] first because [the partners] made more money doing [their] own work.” However, defendant Andrew Thompson claimed that the other two ACE partners were frequently unavailable for work. He stated that plaintiff White was frequently unavailable on weekends and was often “at the beach” with his wife. Defendant Andrew Thompson also relayed that plaintiff Ellis operated another business after ACE was formed and often “had places to go.” More specifically, he recalled one instance when ACE was “working on wet cement one day and [plaintiff Ellis] said my 40 hours [are] up, let me get out of here.” Plaintiff Ellis, however, testified that during every week of ACE’s operation, he worked “40 to 50, sometimes 60” hours. Also, plaintiff White explained to the jury that he informed the other two partners before forming ACE that he held another job and asked if either had a problem with his other employment. According to plaintiff White, neither man had any reservation about forming ACE.

The ACE partners’ disagreements led to defendant Andrew Thompson’s decision to leave the partnership and start his own business, PAL. According to defendant Andrew Thompson, he decided to sever his ties with ACE and begin his own business in January of 2001. Further, he testified that he informed his partners of this decision sometime between 10 January and 15 January 2001. He also stated that after he had informed his partners of his decision to leave ACE, plaintiffs White and Ellis asked him to complete under the ACE name certain jobs which had been awarded to ACE. Defendant Andrew Thompson acceded to plaintiffs’ request, explaining that he “finished those jobs in [the] A[CE] name and was also working in the P[AL] name.” Plaintiff White, however, testified that he first heard in early February 2001 that defendant Andrew Thompson was starting another business. Moreover, plaintiff White stated that it was defendant Fran Lurkee, a Smithfield Packing employee, who conveyed that defendant Andrew Thompson [50]*50“wanted to go on his own” and had already been “doing ... a great job” in the plant for defendant Lurkee.

The ACE partners experienced similar disharmony in attempting to distribute assets of the business. Apparently, plaintiffs were unable to communicate easily with defendants Douglas and Andrew Thompson after Andrew Thompson’s departure from ACE. According to plaintiff White, “[s]ome of the money [disbursed by Smithfield Packing for work ACE had performed] wasn’t being deposited [into ACE’s account].” Plaintiffs White and Ellis changed the mailing address Smithfield Packing had on file for ACE, for the purpose of receiving payment for work ACE had completed. Plaintiff White also transferred the balance of the ACE bank account to his personal account, explaining that plaintiffs embarked on this course of action to preserve the status quo pending resolution of ACE’s affairs. Furthermore, the partners hastily divided ACE’s tools, leaving plaintiffs White and Ellis dissatisfied with the distribution. As explained by plaintiff White, defendant Andrew Thompson “threw [ACE’s tools] on the floor and [plaintiffs White and Ellis] picked up what [they] had to have.”

After defendant Andrew Thompson disassociated himself from ACE, the three former ACE partners continued to work in the Smithfield Packing plant. Plaintiff White testified he and plaintiff Ellis decided to form another business named Whelco. This business, despite being awarded several jobs, remained viable for only a few months. Defendant Andrew Thompson continued to perform work at Smithfield Packing under his new business name, PAL, until roughly October of 2001.

Plaintiffs filed the present lawsuit on 18 October 2002. In their complaint plaintiffs alleged that defendant Andrew Thompson: (1) “acted in derogation of the interests of his partners and the partnership” by, inter alia,

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Cite This Page — Counsel Stack

Bluebook (online)
691 S.E.2d 676, 364 N.C. 47, 2010 N.C. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-thompson-nc-2010.