COLLEGE ROAD ANIMAL HOSPITAL, PLLC; PHILLIP LANZI and JAMIE LANZI, Plaintiffs
JON KEDRICK COTTRELL and JULIE COTTRELL, Defendants
Heard in the Court of Appeals June 5, 2014.
New Hanover County. No. 12 CVS 3404.
Marshall, Williams & Gorham, LLP, by John L. Coble, for Plaintiffs.
Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr., for Defendants.
ERVIN, Judge. Judges ROBERT N. HUNTER, JR. concurred in this opinion prior to 6 September 2014. Judge DAVIS concurs.
Appeal by defendants from order entered 11 September
2013 by Judge Paul L. Jones in New Hanover County Superior Court.
Defendants Jon Kedrick Cottrell and Julie Cottrell appeal from an order granting summary judgment in favor of Plaintiffs College Road Animal Hospital, Phillip Lanzi, and Jamie Lanzi, and ordering Defendants to pay 50% of all past due and future payments required under a loan obtained from Bank of America. On appeal, Defendants contend that the trial court erred by entering summary judgment in favor of Plaintiffs and, concomitantly, declining to enter summary judgment in their favor on the grounds that the Lanzis and the Cottrells were not principals under the loan and that the existence of an express contract between the parties precluded the maintenance of an action for unjust enrichment. After careful consideration of Defendants' challenges to the trial court's order in light of the record and the applicable law, we conclude that summary judgment was improperly entered in favor of Plaintiffs, that summary judgment should have been entered in favor of Ms. Cottrell with respect
to Plaintiffs' contribution claim, and that summary judgment should have been entered in favor of Defendants with respect to Plaintiffs' unjust enrichment claim; that the trial court's order should be reversed; and that this case should be remanded to the New Hanover County Superior Court for further proceedings not inconsistent with this opinion.
I. Factual Background
A. Substantive Facts
In May of 2009, Dr. Cottrell purchased the 50% interest in College Road that had been previously owned by Dr. Robert Weedon. Prior to that date, Dr. Cottrell had been employed by College Road and operated its Carolina Beach location. After purchasing Dr. Weedon's interest, Dr. Cottrell was responsible for operating the Carolina Beach location while Dr. Lanzi was responsible for operating the College Road location.
On 16 September 2009, College Road obtained a $293,000 loan from Bank of America for the purpose of making capital improvements at the Carolina Beach location. According to the loan agreement, the " Borrower shall make all scheduled payments to Lender." In addition, " [e]ach Borrower and each Guarantor agree[d] that [their] obligation to make payments to [the] Lender on the Indebtedness under [the] Agreement [was] absolute and unconditional." The " dismissal, resignation or other withdrawal" from College Road's practice by " any licensed professional who is an owner or shareholder" was prohibited under the loan agreement. The list of incidents of default specified in the loan agreement included, in addition to a failure to make required payments, any failure to adhere to any of the other covenants set forth in that document.
Dr. Lanzi and Dr. Cottrell signed the loan agreement in the section designated for the signature of the borrower. In addition, the two men, along with their wives, executed the guaranty agreement. The loan agreement was modified on 11 March 2010 to increase the principal amount from $293,000 to $312,000, with final disbursement under the loan agreement having been made in December of 2010.
On 17 May 2011, the Cottrells sent an email to Dr. Lanzi indicating that Dr. Cottrell was relinquishing his interest in College Road and defaulting on his agreement to purchase shares in Dr. Weedon's business. On 15 June 2011, Dr. Lanzi's attorney responded to the Cottrells' e-mail by accepting Dr. Cottrell's resignation and indicating that Dr. Lanzi did not wish to enter into an employer-employee relationship with Dr. Cottrell. On 20 July 2011, the Cottrells' attorney notified Bank of America that Dr. Cottrell was no longer affiliated with College Road and that the Cottrells had terminated their personal guarantee with respect to any further advances made to or obligations incurred by College Road.
According to Dr. Lanzi, he and Dr. Cottrell understood that the two of them would contribute half of the funds needed to repay the loan. The actual payments under the loan agreement, however, were made by College Road, with the funds needed for the making of these payments having been derived from the operation of both the College Road and Carolina Beach locations. After the termination of Dr. Cottrell's relationship with the practice, College Road continued to make the required regular monthly payments, which totaled $74,165.80 at the time of the ...