Foot Locker, Inc. v. Best
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-248 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 FOOT LOCKER, INC., Plaintiff v. Wake County No. 11 CVD 13709 JASON BEST, Defendant Appeal by plaintiff from order entered 16 October 2012 by Judge Christine M. Walczyk in Wake County District Court. Heard in the Court of Appeals 15 August 2013. Smith, Debnam, Narron, Drake, Saintsing & Myers, L.L.P., by Bettie Kelley Sousa, for plaintiff-appellant. Hatch, Little & Bunn, defendant-appellee. LLP, by Justin R. Apple, from the for CALABRIA, Judge. Foot Locker, Inc. ( plaintiff ) appeals trial court s order granting summary judgment in favor of Jason Best ( defendant ). We reverse and remand. I. Background In 2007, defendant was employed by plaintiff as a District Manager in North Carolina. In August of that year, plaintiff -2offered defendant a position as a District Manager in Maryland. According to defendant, this offer included a promise by plaintiff to reimburse defendant for his relocation expenses. Defendant accepted the offer and communicated his acceptance to plaintiff. Defendant arrived in Maryland on 6 September 2007 and was officially transferred on 10 September 2007. After his relocation, defendant requested reimbursement of his relocation expenses. Plaintiff responded that defendant would be eligible for reimbursement after he signed plaintiff s relocation and repayment agreement ( the Agreement ). The terms of the Agreement required defendant to, inter alia, reimburse plaintiff for the entirety of his relocation expenses if he did not continue his employment for more than one year. Defendant executed the Agreement on 13 September 2007. Plaintiff provided defendant with $80,083.67 in relocation expenses. Those expenses included payment of moving expenses, temporary living defendant s defendant, home meals, expenses, assistance and locating with mileage, courier and with a new wire the sale residence fees, and of for other miscellaneous expense payments between the dates of 12 October 2007 and 26 June 2008. -3On 20 supervisor, defendant 2008. 2008 August Reggie was 2008, Truitt resigning defendant ( Truitt ), sent his position and an email informed effective to him his that September 2, According to defendant, he met with Truitt on 29 August to directed discuss his defendant to resignation. return his At the corporate meeting, laptop cellular telephone, and corporate credit cards. Truitt computer, Although Truitt informed defendant on 29 August 2008 that it was his final day of work, defendant remained a paid employee in plaintiff s payroll and employment system until 2 September 2008. Defendant was issued his final paycheck on 30 September 2008. This check included payment through 2 September 2008. However, the funds were not disbursed to plaintiff but instead were applied as a credit towards defendant s relocation expenses, as permitted by the Agreement. On 2 September 2011, plaintiff initiated an action against defendant in Wake County District Court seeking recovery of the remaining $77,631.35 in relocation expenses that were owed as a result of defendant s alleged breach of the Agreement. On 25 January 2012, defendant filed an answer affirmatively pleading the statute of limitations as a defense to plaintiff s claim. -4The parties each filed a motion for summary judgment with supporting documentation. The motions were heard September 2012 in Wake County District Court. on 21 On 16 October 2012, the trial court entered an order granting summary judgment in favor of defendant based upon the statute of limitations. The court concluded in the order that the latest date which [d]efendant electing could to plausibly breach voluntarily the terminate [p]laintiff was August 29, 2008, his contract employment by with which was more than three years before plaintiff filed its claim. II. subject Plaintiff appeals. Standard of Review Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis S.E.2d 382, 385 (2007)). v. Neal, 361 N.C. 519, 524, 649 When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party. omitted). III. Statute of Limitations Id. (citation -5Plaintiff contends that the trial court erred in granting summary judgment in favor of defendant because there are genuine issues of complaint material within the fact as to whether plaintiff applicable statute of filed limitations. its We agree. [I]t is well established that [w]hether a cause of action is barred by the statute of limitations is a mixed question of law and fact. The issue becomes a question of law if the facts are admitted or are not in conflict, at which point summary judgment or other trial judge rulings are appropriate. However, [w]hen the evidence is sufficient to support an inference that the limitations period has not expired, the issue should be submitted to the jury. Lord v. Customized Consulting Specialty, Inc., 182 N.C. App. 635, 643, 643 S.E.2d 28, 33 (2007) citations omitted). In North (internal quotations and Carolina, the statute of limitations for breach of contract is three years. Coderre v. Futrell, ___ N.C. App. ___, ___, 736 S.E.2d 784, 787 (2012). The claim accrues at the time of notice of the breach. Henlajon, Inc. v. Branch Highways, Inc., 149 N.C. App. 329, 335, 560 S.E.2d 598, 603 (2002). A. Accrual Date Plaintiff first contends that the trial court incorrectly determined the accrual date of its breach of contract claim. In -6the instant case, the Agreement, which provided the basis for plaintiff s claim, stated in relevant part: If you elect to voluntarily terminate employment with [plaintiff] during the 12month period immediately following the effective date of: (a) the commencement of your employment or (b) the transfer of your employment, you will be required to repay [plaintiff] in full for any funds paid to you or on your behalf for your relocation. A prorated amount is due if your voluntary termination occurs within your second year . . . . . . . This repayment will be due and payable immediately upon your voluntary termination. By accepting relocation benefits from [plaintiff], you agree to authorize [plaintiff], at its option, to deduct the balance of any relocation benefits which you do not repay from any compensation owed to you including, but not limited to, wages, vacation pay, severance pay, bonuses, commissions or other compensation, in the event you voluntarily terminate your employment within 24 months from the effective date . . . . It is undisputed that defendant tendered his resignation letter to plaintiff via email on 20 August 2008, that plaintiff received the email on 21 August, and that the email indicated that the resignation would be effective 2 September 2008. The trial court concluded that plaintiff s breach of contract claim first accrued when plaintiff received this resignation email, -7since it provided plaintiff with notice that defendant elected to voluntarily terminate his employment. . . . had Since defendant sent the email more than three years prior to the filing of plaintiff s complaint, the court additionally concluded that the complaint was time-barred. Contrary to the trial court s conclusion, plaintiff s claim did not accrue at the time it received plaintiff s resignation. The Agreement, voluntarily by its terminate terms, his allowed defendant employment. The to elect to of the purpose Agreement was to contractually obligate defendant to reimburse plaintiff for his relocation expenses if he chose to resign. Since this repayment immediately upon obligation was [defendant s] only due voluntary and payable termination, defendant could not breach the Agreement until he failed to reimburse plaintiff for his relocation expenses at the time of his termination. Defendant s resignation email included the date his resignation would take effect but gave no indication that he did not intend to reimburse plaintiff for his relocation expenses. not have Therefore, plaintiff s breach of contract claim could accrued at the time the email was received, since plaintiff had no reason to believe defendant would breach the Agreement at that time. Consequently, the trial court -8erroneously concluded that plaintiff s claim had accrued when it received defendant s resignation email. B. Date of Termination Plaintiff s breach of contract claim only accrued upon defendant s failure to reimburse it for his relocation expenses when he terminated his employment. that defendant never fully Since there is no dispute reimbursed plaintiff for these expenses, the relevant date for determining the application of the statute employment of was limitations actually is the terminated. date that While the defendant s trial court concluded that 29 August 2008 was defendant s undisputed final day of employment, our review of the record leads us to conclude that the parties presented conflicting evidence as to when defendant s voluntary termination actually occurred. At the summary judgment hearing, defendant submitted his own affidavit in which he averred that he met with Truitt on 29 August 2008. Defendant also asserted that at that meeting, he was to directed relinquish his corporate laptop, corporate cellular telephone, and corporate credit cards because it was my final day of employment with Plaintiff. averred that Friday, August 29, 2008 was Finally, defendant my final day of -9employment with Plaintiff and that I did not work for Plaintiff, in any capacity, after August 29, 2008. In support of its own summary judgment motion, plaintiff provided an affidavit from Michael S. Fasnacht ( Fasnacht ), a retail controller plaintiff s for employment plaintiff who records. was familiar averred Fasnacht with that, according to plaintiff s records, defendant had terminated his employment in writing, effective 2 September 2008. In addition, defendant had been paid wages through that date. Finally, in its response to defendant s request for admissions, plaintiff denied that Truitt met with defendant on 29 August 2008 and informed defendant that it was his last day of employment. Taking this evidence in the light most favorable to plaintiff, there is a genuine issue of material fact as to when defendant s employment terminated after his voluntary resignation. Plaintiff s evidence tends to show that defendant remained in plaintiff s payroll and employment system until 2 September 2008 and that defendant was never informed that his employment was terminated prior to that date. Plaintiff s complaint was filed within three years of 2 September 2008, and thus, if defendant s a jury were termination to credit date, the plaintiff s complaint evidence would have of been -10filed within the Accordingly, the judgment favor in applicable trial of court statute erred defendant when based of it upon limitations. granted the summary statute of limitations because there is a genuine issue of material fact as to when defendant s employment was terminated and when plaintiff s breach of contract claim accrued. C. Partial Payment Plaintiff defendant s also breach argues is that immaterial the initial because the accrual date of application of defendant s final paycheck towards his reimbursement expenses on 30 September 2008 constituted a partial payment that created a new date from which the statute of limitations began to run. Plaintiff is correct that a partial payment on a debt can toll the statute of limitations. See Andrus v. IQMax, Inc., 190 N.C. App. 426, 428, 660 S.E.2d 107, 109 (2008). However, tolling is only applicable when the partial payment is made under such circumstances as will warrant the clear inference that the debtor in making the payment recognized his debt as then existing and acknowledged his willingness, or at least his obligation, to pay the balance. Such a payment is given this effect on the theory that it amounts to a voluntary acknowledgment of the existence of the debt. this -11Pers. Earth Movers, Inc. v. Buckland, 136 N.C. App. 658, 661, 525 S.E.2d 239, 240 (2000)(citation omitted). Plaintiff contends that defendant s execution of the Agreement, in which he agreed to authorize [plaintiff], at its option, to deduct the balance of any relocation benefits which you do not repay from any compensation owed to [defendant], constituted defendant s acknowledgement of his debt to plaintiff. is mistaken. alleged The breach. Agreement Thus, was executed there could before be Plaintiff defendant s no voluntary acknowledgement of the existence of the debt by defendant when he executed the Agreement, since he owed no debt to plaintiff at that time. Moreover, there is no evidence that defendant offered any additional acknowledgement of the existence of the debt after he terminated his employment. Ultimately, plaintiff s use of defendant s compensation to offset his debt, based upon the preexisting circumstances debtor in existing as making and Agreement, simply does will warrant the the payment recognized acknowledged his obligation, to pay the balance. clear not inference willingness, Id. create his or debt at such that the as then least his Thus, this offset does not affect the determination of the accrual date of plaintiff s breach of contract claim. This argument is overruled. -12D. Equitable Estoppel Plaintiff additionally contends that the trial court should have granted summary judgment in its favor as to defendant s statute precluded of limitations defendant from defense because asserting that equitable his estoppel employment was terminated prior to the effective date defendant provided in his resignation email. [A] defendant may properly rely upon a statute of limitations as a defensive shield against stale claims, but may be equitably estopped from using a statute of limitations as a sword, so as to unjustly benefit from his own conduct which induced a plaintiff to delay filing suit. Friedland v. Gales, 131 N.C. App. 802, 806, 509 S.E.2d 793, 796 (1998). However, there is no evidence in the record before us that plaintiff ever raised the issue of equitable estoppel before the trial court.1 Consequently, we will not consider it for the first time on appeal. 1 See Westminster Homes, Inc. v. Town of Cary Zoning Bd. The record on appeal does not include a transcript of the summary judgment hearing, and thus we are unable to determine if plaintiff raised this issue orally at that hearing. Nonetheless, [a]ppellate review is based solely upon the record on appeal; it is the duty of the appellant[] to see that the record is complete. Joines v. Moffitt, ___ N.C. App. ___, ___ 739 S.E.2d 177, 182 (2013)(citation omitted). Accordingly, [t]his Court will not engage in speculation as to what arguments may have been presented . . . . Id. (citation omitted). -13of Adjustment, 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001)( [I]ssues and theories of a case not raised below will not be considered on appeal. ). IV. This argument is overruled. Breach of Contract Finally, plaintiff contends that if it is determined that its claim was filed within the applicable statute of limitations, it was entitled to summary judgment on its breach of contract claim. However, plaintiff provides absolutely no legal any authority of kind in support of this argument. Accordingly, we deem this argument abandoned pursuant to N.C.R. App. P. 28(b)(6) (2013) (An appellant s brief shall contain citations of the authorities upon which the appellant relies. ); see also Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005) ( It is not the duty of this Court to supplement an appellant s brief arguments not contained therein. ). V. with legal authority or This argument is overruled. Conclusion By the express terms of the Agreement, plaintiff s breach of contract claim did not accrue until defendant failed to repay his relocation benefits voluntarily terminated. at the time his employment was Therefore, the trial court erred by granting summary judgment in favor of defendant because there is -14a genuine issue of material fact regarding the actual date of defendant s termination. judgment order and We reverse the trial court s summary remand for further with this opinion. Reversed and remanded. Judges STROUD and DAVIS concur. Report per Rule 30(e). proceedings consistent
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
