United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge
matter is before the Court upon Defendant's Motion for
Summary Judgment. The motion is fully briefed and ripe for
matter involves a dispute over construction work performed by
Plaintiff and general contractor AAPCO Southeast, Inc. at an
apartment complex located in Charlotte, North Carolina
(“the Property”). Defendant EB Somerset, LP owns
the Property. On December 31, 2018, Plaintiff filed this
action in Mecklenburg County Superior Court seeking damages
for breach of contract and to foreclose on its purported
lien. Defendant timely removed this case to this Court on the
basis of diversity jurisdiction. The Complaint alleges that
Defendant did not pay Plaintiff all that it was due for the
work it performed under the construction contract.
October 31, 2017, Defendant executed the construction
contract at issue with “AAPCO Group” and Richard
“Stan” Dobner who purportedly signed on behalf of
that entity. Mr. Dobner is the president of the Plaintiff,
AAPCO Southeast, Inc. “AAPCO Group” is identified
as “Contractor” throughout the construction
purportedly first worked on the Property in December of 2017.
By the summer of 2018, Plaintiff installed straight stairs
even though the construction contract called for curved
stairs, allegedly with the consent of the owner's agent,
but without any written change order as required by the
construction contract. Accordingly, a dispute arose when
Plaintiff demanded payment for the work which Defendant
allegedly never approved. On August 27, 2018, Plaintiff filed a
claim of lien on real property for what it alleges it is due.
Judgment is only appropriate where there is “no genuine
dispute as to any material fact.” Fed.R.Civ.P. 56(a). A
fact is material if it will affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The dispute is genuine if a reasonable jury could
return a verdict for the nonmoving party. Id. The
moving party bears the burden of coming forward with proof of
the absence of any genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). When
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.”
Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). In the end, the question posed by a summary judgment
motion is whether the evidence “is so one-sided that
one party must prevail as a matter of law.”
Anderson, 477 U.S. at 252.
argues that there is no enforceable contract with the
Plaintiff and the Plaintiff lacks standing to sue because its
legal name does not appear on the contract. Defendant cites
Plaintiffs 30(b)(6) corporate representative (who was Mr.
Dobner), who admits that it appears that the contract is
between Defendant and AAPCO Group, not Plaintiff.
(See Doc. No. 12-2, pp. 21:5-16, 42: 13-18, and
argues that Defendant was fully aware that it was entering
into a contract with the Plaintiff. It contends that the
“AAPCO Group” logo is used as a marketing name
for the company, and that the contract contained that name in
error. Plaintiff points to the bid proposal, the pay
applications,  the change orders,  and the lien
waivers,  all of which reference the Plaintiff. Most
importantly, Defendant made payment by check to “AAPCO
Southeast, Inc.” (Doc. No. 13-3, pp. 4, 8).
the evidence and inferences from the evidence in the light
most favorable to the Plaintiff, the Court finds that a
genuine issue of material fact exists as to whether a
contract was entered into between Defendant and Plaintiff.
THEREFORE ORDERED that Defendant's Motion for Summary
Judgment is hereby DENIED.