Heard in the Court of Appeals December 10, 2013.
Counsel Amended March 4, 2014.
Forsyth County. No. 12 CVS 2114. William Z. Wood Jr., Judge.
Hendrick Bryant Nerhood & Otis, LLP, by Matthew H. Bryant, for plaintiff-appellee.
Craige Brawley Liipfert & Walker, LLP, by William W. Walker, for defendants-appellants.
Craige Brawley Liipfert & Walker, LLP, by Mr. William W. Walker, Attorney at Law, for defendants-appellants.
Hendrick Bryant Nerhood & Otis, LLP, by Mr. Matthew H. Bryant, Attorney at Law, for plaintiff-appellee.
HUNTER, Robert C., Judge. Judges MCGEE and ELMORE concur.
HUNTER, Robert C., Judge.
Appeal by defendants from order entered 18 April 2013 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 10 December 2013.
Defendants appeal from an order entered 18 April 2013 in Forsyth County Superior Court by Judge William Z. Wood, Jr. granting plaintiff's motion for partial summary judgment and dismissing defendants' counterclaims. Defendants contend on appeal that the trial court erred by granting plaintiff's motion for partial summary judgment because defendants' counterclaims were not barred, and there was ambiguity in the receivership sale documents as to whether liabilities were transferred, thus creating a genuine issue of material fact. Alternatively, defendants argue that summary judgment was improper because they fall under an exception to the general successor liability rule as set out in Budd Tire Corp. v. Pierce Tire Co., 90 N.C.App. 684, 687, 370 S.E.2d 267, 269 (1988).
After careful review, we affirm the trial court's order.
This action arises from the second of two related proceedings between the parties. The first proceeding involved a civil action and arbitration leading to the judicial dissolution of Van Vooren Game Ranch USA, LLC (" VVGR USA" ). The second proceeding, which gives rise to this appeal, involved a civil action after VVGR USA was dissolved and sold at auction.
Stan Van Vooren (" Stan" ) formed Van Vooren Game Ranch, Inc. (" VVGR Canada" ) in Ontario, Canada in 1987 to grow and sell pheasants for commercial consumption. VVGR Canada created a breed of white pheasants especially suited for meat production and developed a market in North America and overseas. Ron Joyce (" Joyce" ) joined the family poultry distribution business, Joyce Foods, Inc. (" JFI" ) in Forsyth County, North Carolina in 1971, became sole shareholder and manager in 1981, and formed Hickory Mountain Farms, LLC (" HMF" ) in 2003 to manage JFI's farming operation.
In 2006, VVGR Canada sought a processor for its pheasants. After negotiation, HMF and Joyce entered into an agreement with Stan and Van Vooren Holdings Ltd. (" VVH" ) to form VVGR USA. VVGR USA was owned equally; HMF and Joyce owned 50% and Stan and VVH owned 50%. Joyce and Stan served as co-managers of the new company. VVGR USA was to purchase the assets of VVGR Canada for $2,200,000.00. In late 2006 VVGR Canada moved its assets to North Carolina. JFI provided office space and other services for VVGR USA, and JFI's chief financial officer administered VVGR USA's books and bank accounts.
In March 2007, VVGR USA established a $300,000.00 line of credit with SunTrust Bank (" the SunTrust loan" ) which was converted to a promissory note in 2008. The note gave SunTrust a security interest in all of VVGR USA's assets and was ...