N.C. Business Court Opinions, May 21, 2025 – June 3, 2025
By: Lauren Schantz
Mohr Partners, Inc. v. Elior, Inc., 2025 NCBC 24 (N.C. Super. Ct. May 21, 2025) (Davis, J.)
Key Terms: amend pleadings; undue delay; prejudice; summary judgment; offensive summary judgment; real estate; exclusive representation agreement; commission; self-service; exclusive right to sell; exclusive agency; breach of contract; waiver; excused; actual damages; nominal damages, errata sheet; breach of fiduciary duty;
This action involves a dispute between a real estate broker, Plaintiff Mohr Partners, Inc., and its client, Defendant Elior, Inc., regarding Mohr’s entitlement to a commission under an Exclusive Representation Agreement (“ERA”). During the term of the ERA, Elior self-serviced certain transactions for which it did not pay Mohr a commission. Elior also refused to pay Mohr a commission for services Mohr performed on two transactions: the Moosic Transaction and the Berkeley Transaction. The parties filed cross-motions for summary judgment and Elior filed a motion for leave to amend.
Motion for Leave to Amend. Elior sought to amend its answer to assert that the ERA was not a valid contract. Because the parties had proceeded with the conduct of the case based on the premise that the ERA was valid, and the discovery period was now closed, the Court denied the motion due to undue delay and the resulting prejudice to Mohr.
Entitlement to Commission. The parties sought summary judgment on the issue of whether the ERA entitled Mohr to a commission for real estate transactions that Elior self-serviced. The Court concluded that the ERA constituted an exclusive agency agreement—which allows for self-servicing without payment of a commission—rather than an exclusive right to sell agreement because the ERA contained no language that expressly relinquished Elior’s right to self-service real estate transactions. Accordingly, Mohr was not entitled to a commission on the self-serviced transactions.
The Moosic Transaction. Elior argued that Mohr was not entitled to a commission for services performed as part of the Moosic Transaction because the real estate sale was part of a larger merger and acquisition transaction not covered by the ERA. The Court rejected this argument, noting that the ERA contained no language exempting real estate transactions that accompanied the sale of a business. Elior also argued that the Moosic Transaction was not assigned to Mohr, but the record did not support this argument. Thus, the Court concluded that Mohr was entitled to a commission for the Moosic Transaction, granted Mohr’s motion and denied Elior’s motion on this issue, and deferred ruling on the amount owed to Mohr.
The Berkeley Transaction – Breach of Contract. Mohr contended that Elior breached the ERA by failing to pay a commission for the Berkeley Transaction. Elior argued that Mohr mistakenly conveyed an unauthorized offer to a third-party and that this mistake excused Elior from paying the commission and gave rise to affirmative claims against Mohr. Although the parties agreed that a genuine issue of material fact existed as to whether Mohr’s conveyance of the offer was a breach of the ERA, Mohr argued that it was nonetheless entitled to summary judgment because Elior had waived any breach by continuing to have Mohr work on the Berkeley Transaction after the alleged breach. The Court concluded that a genuine issue of material fact existed regarding waiver, and, therefore, denied Mohr’s motion for summary judgment as to its breach of contract claim. However, the Court granted Mohr summary judgment on the issue of damages for Elior’s breach of contract counterclaim, determining that Elior had failed to offer sufficient evidence that it was entitled to actual damages. Accordingly, Elior would be limited at trial to seeking nominal damages on its breach of contract counterclaim regarding the Berkeley Transaction.
The Berkeley Transaction – Breach of Fiduciary Duty. Elior contended that Mohr, as its real estate agent, breached its fiduciary duty by conveying an unauthorized offer during negotiations. The Court denied Mohr’s motion for summary judgment on Elior’s breach of fiduciary duty counterclaim because whether Mohr’s conveyance of the offer constituted a breach of the ERA was a genuine issue of material fact for the jury to decide. The Court also concluded that Elior could only recover nominal damages on this counterclaim because Elior had failed to offer sufficient evidence that it was entitled to actual damages.
*******
United Therapeutics Corp. v. Roscigno, 2025 NCBC 25 (N.C. Super. Ct. May 27, 2025) (Earp, J.)
Key Terms: motion to dismiss; employment agreement; breach of contract; declaratory judgment; Rule 12(b)(1); standing; subject matter jurisdiction; justiciable controversy; intellectual property; judicial notice; redressability; equitable remedy; Rule 12(b)(6); statute of limitations
This action centers on an employment dispute. Pursuant to employment agreements, Defendant Roscigno worked for Plaintiff United Therapeutics Corporation (“UTC”), first as a clinical research scientist and then as the president of a UTC subsidiary, developing new drugs and drug delivery systems. Four years after resigning from UTC, Roscigno joined Defendant Liquidia Technologies, Inc., a direct competitor of UTC, and developed competing drugs and drug delivery systems for Liquidia. UTC filed suit against Defendants, asserting claims for trade secret misappropriation and unfair and deceptive trade practices based on alleged violations of Roscigno’s UTC employment agreements. UTC moved to amend its complaint to add claims for breach of contract and declaratory judgment, but the Court denied the request as untimely. UTC subsequently initiated this suit, and Defendants moved to dismiss the Complaint in its entirety.
Liquidia argued that the Court lacked subject matter jurisdiction over the claims asserted against it because the Complaint’s allegations only related to Roscigno’s alleged breach of his employment agreement with UTC. The Court disagreed, concluding that a justiciable controversy existed as to whether Roscigno was required to assign and transfer to UTC his interest in certain intellectual property created during his employment with Liquidia. The Court took judicial notice that Roscigno had assigned his rights in UTC’s disputed intellectual property to Liquidia.
Roscigno argued that UTC lacked standing to bring its claims because the claims are not redressable based on his transfer of his ownership rights in the intellectual property to Liquidia. The Court disagreed, determining that, at this stage, the Court could not conclude that the equitable remedies of specific performance, a constructive trust, or both may be available to Plaintiffs. The Court denied Defendants’ motion to dismiss pursuant to Rule 12(b)(1) on both grounds.
Defendants also argued that UTC’s claims were barred by a three-year statute of limitation, contending that UTC’s claim accrued when Liquidia’s patent issued listing Roscigno as an inventor. UTC argued that its breach of contract claim is predicated on Roscigno’s alleged misuse of its confidential information, and UTC did not learn of this alleged misconduct until Liquidia produced discovery in other litigation. The Court concluded that the competing views were a question of fact for the jury and denied Defendants’ motion to dismiss pursuant to Rule 12(b)(6).
*******
Myers v. Tier 1 Home Sols., LLC, 2025 NCBC Order 36 (N.C. Super. Ct. May 22, 2025) (Robinson, C.J.)
Key Terms: consent order; motion to dismiss; Rule 12(b)(1); Rule 12(b)(6); derivative claims; LLC; N.C.G.S. § 57D-8-04
Plaintiff Joseph Myers and Defendant Kristopher Garrett Austin are 50/50 members of Defendant Tier 1 Home Solutions, LLC. Myers brought derivative claims on behalf of Tier 1 against Austin and direct claims against all Defendants. After Defendants moved to dismiss all claims, the parties agreed to the dismissal of the derivative claims and submitted a proposed consent order. Pursuant to N.C.G.S. § 57D-8-04, the Court concluded that the continuance of the derivative proceeding was not in Tier 1’s best interests and that the discontinuance of the claims would not substantially affect the interests of the members. Therefore, the Court granted the motion to dismiss the derivative claims with prejudice.
*******
Helix Mech., LLC v. Element Serv. Grp. Mech., LLC, 2025 NCBC Order 37 (N.C. Super. Ct. May 29, 2025) (Robinson, C.J.)
Key Terms: designation; N.C.G.S. § 7A-45.4(a)(4); N.C.G.S. § 7A-45.4(a)(5); breach of contract; trademark; intellectual property; material issues
This action arises out of an alleged breach of contract for the purchase of a commercial HVAC business. Defendants sought to designate this matter under N.C.G.S. § 7A-45.4(a)(4) and (a)(5), contending that the action involved a dispute involving trademark law and/or the ownership or use of intellectual property. The Court determined that designation pursuant N.C.G.S. § 7A-45.4(a)(4) was improper because the allegations of the Complaint did not implicate trademark law and required only the application of contract law principles. The Court also determined that designation pursuant N.C.G.S. § 7A-45.4(a)(5) was improper because the material issues were tied to the alleged breach of contract rather than the underlying intellectual property aspects of the intellectual property involved. Accordingly, the matter was not designated as a mandatory complex business case.
*******
BioGas Corp. v. NC Biogas Dev., LLC, 2025 NCBC Order 38 (N.C. Super. Ct. June 2, 2025) (Robinson, C.J.)
Key Terms: show cause; civil contempt; consent order; motion for sanctions; willful; N.C.G.S. § 5A-23; N.C.G.S. § 5A-21; purge conditions; joint and several liability; judgment; interim award; voluntary dismissal; attorneys’ fees; N.C.G.S. § 6-21.2
Counterclaim Defendants BioGas Corp. and S. Anwar Shareef were ordered to show cause why the Court should not hold them in civil contempt for violation of a consent order that enjoined Counterclaim Defendants from entering into any contract regarding a particular project without first consulting and obtaining written consent from Counterclaim Plaintiff NC Biogas Development, LLC (“NCBD”) during the pendency of the action.
The Court concluded that Counterclaim Defendants did not have the ability to comply with the consent order because the contracts had already been signed without NCBD’s approval. The Court, with the consent of BioGas Corp., Shareef, and Counterclaim Defendant NC BioGas, LLC, entered judgment against the Counterclaim Defendants for an interim award in an amount equal to the amount in dispute in the Counterclaim Plaintiffs’ first counterclaim. The Court directed Counterclaim Plaintiffs to file a voluntary dismissal as to that counterclaim because the Court’s judgment granted the relief sought. The Court permitted Counterclaim Plaintiffs to seek attorneys’ fees to the extent allowed by law.
To subscribe, email aoldfield@rcdlaw.net.
The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.