Onslow Wholesale Plumbing & Elec. Supply, Inc. v. Fisher

302 S.E.2d 632 (1983)

ONSLOW WHOLESALE PLUMBING & ELECTRICAL SUPPLY, INC. v. Leonard FISHER and J. Daniel Fisher.

No. 35A83.

Supreme Court of North Carolina.

May 31, 1983.

White, Allen, Hooten, Hodges & Hines, P.A. by John M. Martin, Kinston, for plaintiff-appellant-appellee.

Jeffrey S. Miller, and Ellis, Hooper, Warlick, Waters & Morgan by N.B. Tisdale, Jacksonville, for defendants-appellants.

*633 PER CURIAM.

The plaintiff seeks in this civil action, inter alia, to have a constructive trust declared on certain stocks purchased by the defendant, Leonard Fisher. The plaintiff's claims for relief are based on breach of fiduciary duty owed the plaintiff by the aforementioned defendant pursuant to his position as general manager and agent of the plaintiff and as a director and officer of the plaintiff.

Rather than filing an answer, the defendants filed a motion for summary judgment. The plaintiff filed affidavits in opposition to the defendants' motion. The trial court refused to enter partial summary judgment in favor of the plaintiff, and allowed the defendants' motion for summary judgment. The plaintiff appealed.

The Court of Appeals affirmed summary judgment in favor of the defendants on the issue of punitive damages. It reversed summary judgment in favor of the defendants in all other respects and found the plaintiff to be entitled to summary judgment on the issue of breach of fiduciary duty with regard to the purchase of shares of stock by the defendant Leonard Fisher from James and Marshall Batchelor. The Court of Appeals remanded the case for trial on the issue of breach of fiduciary duty with regard to the defendant Leonard Fisher's purchase of shares of stock from Norman Mercer.

The decision of the Court of Appeals is affirmed.

AFFIRMED.