Speck v. North Carolina Dairy Foundation

307 S.E.2d 785 (1983)

Marvin L. SPECK and Stanley E. Gilliland v. NORTH CAROLINA DAIRY FOUNDATION, INC., the Board of Governors of the University of North Carolina, the Board of Trustees of North Carolina State University, a constituent institution and the Acting Chancellor of North Carolina State University.

No. 8210SC920.

Court of Appeals of North Carolina.

October 18, 1983.

*788 Boyce, Mitchell, Burns & Smith by Lacy M. Presnell, III, and Susan K. Burkhart, Raleigh, for plaintiffs-appellants.

Poyner, Geraghty, Hartsfield & Townsend by Thomas L. Norris, Jr., Cecil W. Harrison, Jr., and David W. Long, Raleigh, for defendant-appellee North Carolina Dairy Foundation, Inc.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Edwin M. Speas, Jr., and Associate Atty. Gen. Thomas J. Ziko, Raleigh, for defendants-appellees The Bd. of Governors of the University of North Carolina, The Bd. of Trustees of North Carolina State University, and The Acting Chancellor of North Carolina State University.

PHILLIPS, Judge.

The central issue on appeal is whether plaintiffs' cause of action is barred by the three-year limitations period of G.S. 1-52. Because the record contains evidence supporting plaintiffs' allegations of a breach of fiduciary duty, we hold that their claim may fall under the ten-year limitations period *789 of G.S. 1-56 and therefore summary judgment was not proper.

Summary judgment for the defendants is proper only if the evidence in the light most favorable to the plaintiffs shows no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. If the plaintiffs had merely made out a claim in contract, express or implied, or in fraud, then the defendants would be entitled to judgment based on the three-year statute of limitations in G.S. 1-52. However, plaintiffs' evidence raises a genuine issue of material fact as to whether the defendants had a fiduciary duty to the plaintiffs that they breached.

A confidential or fiduciary relationship "exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence." Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931). Whether such a relationship exists in any instance is determined by the specific circumstances of the case. When, as here, the circumstances governing the alleged relationship are in dispute, the issue is one of fact for the jury, rather than one of law for the court. Moore v. Bryson, 11 N.C.App. 260, 181 S.E.2d 113 (1971); Crew v. Crew, 236 N.C. 528, 73 S.E.2d 309 (1952).

Taken in the light most favorable to the plaintiffs, the evidence in the present case indicates Dr. Speck reposed a special confidence in the University and the Dairy Foundation to protect his interest in the secret process for making Sweet Acidophilus milk. Acting pursuant to the University's Patent Policy, Dr. Speck presented his secret process to the Patent Committee. He reasonably assumed that the University had ownership rights to his invention but that he would be equitably compensated as specified in the Patent Policy. The University did not inform him that the ownership rights were his. Instead, the Patent Committee approved his idea of marketing the invention through the Dairy Foundation. Plaintiffs understood the University to be turning its ownership rights over to the Dairy Foundation. The University, as their employer, was in a superior position to plaintiffs, who were in no position to question the course that the University chose to follow.

University officials claimed credit for the scientific and commercial success of Sweet Acidophilus, noting that the new milk product had been marketed through the Dairy Foundation. The University encouraged Dr. Speck to assist the Dairy Foundation in developing Sweet Acidophilus, and University officials worked directly with the Dairy Foundation on this project. Evidence for the plaintiffs shows that the University exercised authority and control over the commercial development of plaintiffs' secret process, and that the plaintiffs entrusted their invention or discovery to the University for development.

The circumstances indicate the relationship was more than contractual. Plaintiffs turned their secret process over to their employer without asking for anything. Their primary concern was for the University to make the best use of acidophilus; they relied on the superior business and legal skills of the defendants for marketing acidophilus milk. Yet they understood from the Patent Policy that surrendering their legal ownership rights did not deprive them of an equitable or beneficial interest in their invention. By working with the defendants to develop Sweet Acidophilus long after they had acknowledged the legal ownership was in the defendants, they demonstrated their continued interest in their invention. Plaintiffs reposed a special confidence in the defendants by confidentially revealing a secret and valuable process to them, and the defendants' actions indicate they accepted this trust. The minutes of the 28 October 1972 Dairy Foundation meeting show a University official stated that the Patent Committee was applying for the trademark through the Dairy Foundation. Thus, there is evidence that all the defendants assumed responsibility for the secret process despite the absence of any assignment of rights to them or contractual *790 agreement. Plaintiffs' evidence supports their claim that they entrusted the defendants with their new techniques, and that there was neither any intent by plaintiffs to divest themselves of any equitable interest that they might have therein nor any bargaining with respect thereto.

The trust placed by the plaintiffs in the University also encompasses the Dairy Foundation. The Dairy Foundation essentially acted as an agent of the University for developing Sweet Acidophilus milk. These two organizations had an identity of interests since part of the Dairy Foundation's royalties from Sweet Acidophilus went to support further University research on this milk product. Moreover, the University and the Dairy Foundation shared the goal of using the royalties to promote dairy products and general research in the public interest. The two organizations had overlapping officers and office locations. They worked closely together in developing Sweet Acidophilus. The Dairy Foundation, nominal owner of the rights to Sweet Acidophilus, opened all its contracts and actions pertaining to the milk product to review by the University. University officials consistently stated they were developing Sweet Acidophilus for consumer markets by working through the Dairy Foundation, thereby implying an agency relationship. The interests and responsibilities of the University and Dairy Foundation were so tightly interwoven in developing Sweet Acidophilus that the actions of one may be fairly attributed to the other.

Plaintiffs have produced evidence that the defendants violated the trust or confidence reposed in them. The University has declined plaintiffs' request for a share of the royalties even though the Patent Committee Chairman recommended a $30,000 award to Dr. Speck. The Dairy Foundation received well over half a million dollars in Sweet Acidophilus royalties by June of 1980, with a portion of these proceeds going to the University to fund research. The defendants arguably had a fiduciary duty to set aside a fair share of the royalties for the plaintiffs since the defendants, acting in a position of superiority and trust, assumed control of the secret process, the defendants took credit for the plaintiffs' innovations, the defendants traditionally gave 15% of the royalties to faculty inventors, and the defendants profited from the special confidence that plaintiffs reposed in them.

The viability of plaintiffs' claim depends upon the jury finding that a breach of fiduciary duty has occurred. Without this finding, plaintiffs will not have stated a claim that comes under the ten-year statute of limitations. But if there has been a breach of fiduciary duty, the ten-year limitation period of G.S. 1-56 will control since none of the other statutes of limitations expressly apply.

North Carolina courts have long held that a constructive trust arises out of the violation of a confidential or fiduciary relation, and that, as distinguished from an express trust, it is governed by the ten-year, rather than the three-year, statute of limitations. Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289 (1954).

It is important to note, however, that a constructive trust is an equitable remedy, not a true trust. Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83 (1938); D. Dobbs, Remedies § 4.3 (1973). The constructive trust remedy was created to prevent unjust enrichment and force restitution to the plaintiff of property that in equity and good conscience did not belong to the defendant. Dobbs, supra. The tenyear statute of limitations was originally applied to constructive trusts because the underlying cause of action was fraud or some similar wrongful act distinct from breach of contract. Teachey, supra. Today, the statute of limitations for fraud has been shortened to three years. G.S. 1-52. Nonetheless, North Carolina still seems to apply ten-year statutes of limitations to constructive trusts. Cline v. Cline, 297 N.C. 336, 255 S.E.2d 399 (1979).

A decision as to which statute of limitation applies should be based on the nature of the substantive right that has been injured, not the remedy. G.S. 1-52 imposes a three-year limitations period for *791 specific rights like those in contract and fraud, regardless of the remedy sought. By stating in G.S. 1-56, "All other actions, ten years" the General Assembly created a catch-all limitations period for substantive rights not enumerated in other statutes. It is irrelevant whether plaintiffs seek a constructive trust, or any other remedy, for purposes of determining the statute of limitations. Instead, the statutes of limitation must be examined to find which one covers the substantive right plaintiffs are asserting; namely, a fiduciary duty owed by the defendants.

Defendants' alleged fiduciary duty was neither contractual nor the basis for fraud in the present case. Defendants made no promise that they could have breached; there was no agreement reached by the parties about plaintiffs' rights to their secret process or its royalties. Nor was there any allegation of intentional deceit. Plaintiffs' evidence simply shows they reposed a special confidence in the defendants, and the defendants did not act in good faith or fairness to look after the plaintiffs' interests. Since no statute of limitation expressly covers breaches of this type of fiduciary duty, they are governed by G.S. 1-56.

Though the decisions of our Supreme Court involving fiduciary relationships and the statutes of limitation are neither entirely clear nor consistent, as we understand them they nevertheless sanction our holding in this instance. In Parsons v. Gunter, 266 N.C. 731, 147 S.E.2d 162 (1966), it was held that the three-year, rather than the tenyear, statute applied because plaintiff's claim was strictly contractual in nature and the evidence failed to establish a confidential relationship from which a constructive trust could arise. But here, plaintiffs' claim is not contractual and evidence was presented that a confidential or fiduciary relationship existed.

While some aspects of the decision in Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708 (1965) are not at all clear to us, and we doubt the validity of some of the statements made therein, which need not be analyzed here since they are irrelevant to this appeal, it is quite clear that in ruling that the three-year statute applied to the wife's claim against her husband based upon her funds being used to help build a house on a lot he had title to that the Court did so because the evidence showed her money was put into the house in reliance upon his express promise to have title to the property put in both their names. Thus, as in Parsons, the claim was essentially for breach of contract, rather than for breach of fiduciaryduty, as in this case. Another distinguishing feature between this case and Fulp is that these plaintiffs claim an equitable interest in or title to the proceeds from a secret process that didn't exist before their work was done; whereas, in Fulp, the plaintiff sought to recover money contributed to the pre-existing property of another.

Recent North Carolina decisions continue to say that an action for a constructive trust has a ten-year statute of limitations. Tyson v. North Carolina National Bank, 305 N.C. 136, 286 S.E.2d 561 (1982); Cline v. Cline, supra. But the reasoning of these decisions indicates the court is determining the statute of limitations according to the substantive nature of the right involved. The Cline case held that defendant husband violated his fiduciary or confidential relationship to his plaintiff wife, giving rise to a constructive trust in her favor, and the court applied the ten-year statute. In Tyson, where plaintiff was the heir and beneficiary of an estate of which defendant was the executor and trustee, though the court agreed that there had been a breach of fiduciary duty, it applied the three-year statute of limitations because defendant had violated an express trust, for which contract damages rather than a constructive trust were the proper remedy. Cline and Tyson together stand for the proposition that breach of fiduciary duty may give rise to an action in contract or may be an independent cause of action, depending on the circumstances.

Cline provides the best precedent for the present case since both involve breach of *792 fiduciary duty without a contractual basis. Unlike Tyson, no express trust exists in the present case.

Defendants also argue that breach of fiduciary duty constitutes a form of fraud; however, breach of fiduciary duty is "constructive fraud," which differs from actual fraud in that it does not require the element of intentional deceit. Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971); Miller v. First National Bank of Catawba County, 234 N.C. 309, 67 S.E.2d 362 (1951). The distinction is so great Dobbs finds the term "constructive fraud" to be misleading. Dobbs, supra, § 10.4. Breach of fiduciary duty occurs when there is unfair dealing with one to whom the defendant has an active responsibility; it requires a special relationship unlike actual fraud. Thus, although actual fraud and constructive fraud share the name of "fraud," they are different causes of action which should come under different statutes of limitation.

Under the foregoing analysis, plaintiffs' have stated a claim for breach of fiduciary duty which is not in the nature of a breach of contract or actual fraud. Accordingly, the ten-year limitations period of G.S. 1-56 should apply. Yet even if this Court were to determine the statute of limitations issue according to whether plaintiffs had grounds for a constructive trust remedy, the plaintiffs must prevail on appeal.

A constructive trust may arise where there has been a breach of fiduciary duty. Cline v. Cline, supra. In such cases, the ten-year statute of limitations has been held to apply. Id. Defendants argue that a constructive trust requires a property interest, and that the trade secret in the present case is not a property interest, so the ten-year limitation period for constructive trusts cannot be invoked. We disagree. As an equitable remedy the constructive trust is quite flexible and may be used to recover profits or other unjust enrichment stemming from a fiduciary's misuse of confidential information.

The general rule is that, "One in a special relationship clearly should not profit at the expense of his beneficiary." (Emphasis in original). Dobbs, supra, § 10.4. Dobbs identifies two pertinent fact situations where the preceding rule applies: (1) an employee owes a fiduciary duty of loyalty to his employer not to divulge a trade secret or take inside information for his own use, and (2) a person generates an idea and submits it to a business for development with the expectation of being paid. Id. at § 6.6. The present case involves elements of both these situations. A confidential relationship and duty of loyalty arguably existed between plaintiff employees and the defendant employer when defendant was entrusted with the commercial development of plaintiffs' secret process. The plaintiffs' process for introducing acidophilus into milk is in the nature of a trade secret. As such, the defendants have a duty to share profits with the plaintiffs if the jury finds a confidential relationship: "What is protectible is not property, but the confidential relationship and duty of loyalty owed by those who receive confidential information. Thus the trade secret need not be patentable or copyrightable to deserve the [defendants'] duty of loyalty concerning it." Id. at § 10.5. A constructive trust may be imposed to recover profits that unjustly enrich a defendant who misuses confidential information. Id. Dobbs carefully notes that where the defendant is not a conscious wrongdoer, equitable restitution should be limited to the gains unjustly derived from the trade secret itself, as opposed to any share of profits attributable to the efforts, capital, and skill of the defendant. Id.

This Court has cited Dobbs' analysis with approval. In Travenol Laboratories, Inc. v. Turner, 30 N.C.App. 686, 228 S.E.2d 478 (1976), this Court stated that disclosure of confidential information obtained through an employer-employee relationship was a tort in which the duty derives from the relationship of trust and confidence, not from property rights in the information.

The remedy sought in the Travenol Laboratories case was an injunction, but it is equally clear that a constructive trust may lie in cases of fiduciary self-dealing. Anderson Cotton Mills v. Royal Manufacturing *793 Co., 221 N.C. 500, 20 S.E.2d 818 (1942), held that a fiduciary must account by way of constructive trust for any personal pecuniary advantage acquired when acting in his fiduciary character.

Defendants contend, in contradiction to the preceding authorities, that the Fulp decision requires title to property to be at issue before a constructive trust may be imposed. Fulp does not state that the tenyear statute of limitations for constructive trusts applies only if title to property is at issue. Instead, it holds that in the context of a dispute over real estate the plaintiff must state a claim for equitable ownership in the real estate, not simply a claim for money had and received, if legal title is to be conveyed to the plaintiff through a constructive trust. North Carolina law on constructive trusts, including the Anderson Cotton Mills and Fulp decisions, has received academic attention in an article that stresses the breach of duty over the need for a formal property right as the basis of a constructive trust. Lauerman, Constructive Trusts and Restitutionary Liens in North Carolina, 45 N.C.L.Rev. 424, 436 (1967), states:

If there is a fiduciary or confidential relationship between the parties established by an agreement or otherwise, there need have been no trust res in existence at the time the fiduciary relationship was created in order to support a subsequent constructive trust. It is enough if the fiduciary or confidant has acquired any pecuniary advantage to himself through his special relationship. Hence, a constructive trust in North Carolina is primarily a tool to enforce a fiduciary duty.

This analysis makes sense because a constructive trust is not a true trust. It does not require a res or other incidents of true trusts. It is strictly an equitable remedy for providing restitution to the plaintiff where the defendant has been unjustly enriched.

Defendant Dairy Foundation also claims that summary judgment was properly based on plaintiffs' waiver or abandonment of their rights. Plaintiffs did acknowledge in 1973 and 1974 that the Dairy Foundation owned the rights to the acidophilus processing technique. However, if the jury finds that plaintiffs entrusted their secret process to defendants on the basis of a confidential or fiduciary relationship, then plaintiffs' acknowledgment of legal title in defendants does not establish waiver or abandonment. Plaintiffs would retain their equitable interest. Waiver is the intentional relinquishment of a known right. Jones v. Home Security Life Insurance Co., 254 N.C. 407, 119 S.E.2d 215 (1961). Similarly, abandonment of property requires intent. Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173 (1942). Plaintiffs' evidence shows they did not know of their ownership rights; they believed that under the Patent Policy the University had ownership and they had rights only to an "equitable arrangement" consisting of 15% of the royalties. The issue of waiver or abandonment depends on the same findings as the issue of breach of confidential relationship: if the jury finds that plaintiffs entrusted their secret process to defendants with the expectation that defendants would protect their interest in a fair share of the royalties, then no waiver or abandonment occurred.

Reversed and remanded.

WELLS, J., concurs.

HEDRICK, J., dissents.

HEDRICK, Judge, dissenting.

The majority grounds its decision on what it perceives to be a breach of a fiduciary relationship that gives rise to an equitable proceeding to establish a constructive trust. The record discloses that there is not now and never has been a "fiduciary relationship" between the defendants and plaintiffs, and the law will not and the court cannot declare that any of the defendants holds the property in question or any profits realized therefrom in trust for the plaintiffs.

I vote to affirm summary judgment for the defendants.