Onslow Wholesale Plumbing & Electrical Supply, Inc. v. Fisher, 308 N.C. 540 (1983)

May 31, 1983 · Supreme Court of North Carolina · No. 35A83

308 N.C. 540

ONSLOW WHOLESALE PLUMBING & ELECTRICAL SUPPLY, INC. v. LEONARD FISHER and J. DANIEL FISHER

No. 35A83

(Filed 31 May 1983)

Appeal as a matter of right under G.S. 7A-30(2) from the decision of the Court of Appeals (Judge Hill, with Judge Martin concurring and Judge Hedrick dissenting). 60 N.C. App. 55, 298 S.E. 2d 718 (1982). By its decision the Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendants entered by Judge Barefoot on 27 July 1981 in Superior Court, Onslow County. The Court of Appeals also remanded the case for entry of partial summary judgment in favor of the plaintiff and for trial on the remaining issues. Both the plaintiff and the defendants gave notice of appeal.

White, Allen, Hooten, Hodges and Hines, P.A., by John M. Martin, for plaintiff-appellant-appellee.

Jeffrey S. Miller, and Ellis, Hooper, Warlicfc, Waters and Morgan, by N. B. Tisdale, for defendant-appellants.

PER CURIAM.

The plaintiff seeks in this civil action, inter alia, to have a constructive trust declared on certain stocks purchased by the defendant, Leonard Fisher. The plaintiff’s claim for relief are based on breach of fiduciary duty owed the plaintiff by the aforementioned defendant pursuant to his position as general manager and agent of the plaintiff and as a director and officer of the plaintiff.

Rather than filing an answer, the defendants filed a motion for summary judgment. The plaintiff filed affidavits in opposition to the defendants’ motion. The trial court refused to enter partial summary judgment in favor of the plaintiff, and allowed the defendants’ motion for summary judgment. The plaintiff appealed.

The Court of Appeals affirmed summary judgment in favor of the defendants on the issues of punitive damages. It reversed summary judgment in favor of the defendants in all other respects and found the plaintiff to be entitled to summary judgment on the issue of breach of fiduciary duty with regard to the purchase of shares of stock by the defendant Leonard Fisher from James and Marshall Batchelor. The Court of Appeals remanded the case for trial on the issue of breach of fiduciary duty with regard to the defendant Leonard Fisher’s purchase of shares of stock from Norman Mercer.

The decision of the Court of Appeals is affirmed.

• Affirmed.