DAVIS v. DAVIS FUNERAL SERV., INC., 2023 NCBC 73

STATE OF NORTH CAROLINA
UNION COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 583
WESTON DAVIS,
Plaintiff,
v.
DAVIS FUNERAL SERVICE, INC.;
ROBERT L. MORGAN, III, President
(as an officer of Davis Funeral
Service, Inc.); PHILLIP TILLMAN,
Vice President (individually and as
an officer of Davis Funeral Service,
Inc.); and ROBIN H. MORGAN,
Secretary (as an officer of Davis
Funeral Service, Inc.),
Defendants/Third-
Party Plaintiffs,
v.
DEIDRA TEDDER,
Third-Party
Defendant.
ORDER AND OPINION
ON DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
1. 	In this case, Weston Davis has sued his former employer, Davis Funeral
Service, Inc., and its officers. 	He seeks to recover unpaid wages as well as
compensatory and punitive damages for alleged defamation. All four defendants have
moved for summary judgment. 	(ECF No. 43.) 	For the following reasons, the Court
GRANTS in part and DENIES in part their motion.
Brown & Associates, PLLC, by Donald Mitchell Brown, for Plaintiff
Weston Davis.
Burns, Gray & Gray, by John T. Burns and Christopher A. Gray, for
Defendants Davis Funeral Service, Inc., Robert L. Morgan, III, Phillip
Tillman, and Robin H. Morgan.
Davis v. Davis Funeral Serv., Inc., 2023 NCBC 73.

Villmer Caudill, PLLC, by Bo Caudill, for Third-Party Defendant Deidre
Tedder.
Conrad, Judge.
I.
BACKGROUND
2. 	Davis joined Davis Funeral Service in January 2018 at the request of his
cousin, Vann, who was the president and sole shareholder at that time. In September
2020, Vann died, and company ownership passed to his estate. 	The original
administrator of the estate elevated Davis to replace Vann as president, but a year
later, a new administrator sacked Davis and named Robert Morgan, Robin Morgan,
and Phillip Tillman as officers. (See Davis Aff. ¶¶ 3, 17, 23, 31, ECF No. 47; see also
Davis Dep. 25:16–26:10, 57:15–24, ECF No. 44.1.)
3. 	This lawsuit followed. In his complaint, Davis points to an oral employment
agreement that he and Vann allegedly negotiated. The terms of that agreement are
hazy: Davis does not say how much he was to be paid but alleges that he was given
the title “Vice President,” that he was an at-will employee, and that his duties
included managing the funeral home and training to become a licensed funeral
director. Davis also alleges that Davis Funeral Service paid him just a small fraction
of the wages that he earned from January 2018 until the COVID-19 pandemic began
in early 2020 and that it did not pay him at all from the beginning of the pandemic
through Vann’s death. 	Based on these allegations, Davis seeks to recover “wages
unpaid” or, alternatively, “the reasonable value of services rendered.”1 	He asserts
1 After the close of discovery and after Davis Funeral Service filed its motion for summary
judgment, Davis moved to amend his complaint to introduce new theories of liability. The
proposed amendment described a radically different oral employment agreement in which

claims for breach of contract, breach of the implied covenant of good faith and fair
dealing, quantum meruit, and unjust enrichment. (See Compl. ¶¶ 10–12, 20, 25, 68,
69, 86–88, 90, 97, 102, ECF No. 3.)
4. 	Davis also claims that he was defamed after his departure. 	As alleged,
Tillman falsely stated to grieving patrons of Davis Funeral Service that Davis had
performed funerals without a license and was fired for that reason. 	Davis seeks to
hold Tillman individually liable for these statements and to hold the company
vicariously liable. (See Compl. ¶¶ 53, 54, 56, 57, 78, 92–95.)
5. 	In 	response, 	Davis 	Funeral 	Service 	denies 	any 	wrongdoing 	and 	has
counterclaimed for alleged misconduct by Davis during his time as president. It has
also asserted third-party claims against another former employee. 	(See Ans. to
Compl. & Countercl., ECF No. 4.) 	The counterclaims and the third-party claims,
which the Court has addressed in earlier orders, are not at issue here. See generally
Davis v. Davis Funeral Serv., Inc., 2023 NCBC LEXIS 79 (N.C. Super. Ct. June 12,
2023); Davis v. Davis Funeral Serv., Inc., 2022 NCBC LEXIS 79 (N.C. Super. Ct. July
20, 2022).
6. 	Discovery is now closed. Davis Funeral Service, the Morgans, and Tillman
have jointly moved for summary judgment. The motion is fully briefed, and the Court
held a hearing on 12 October 2023. The motion is ripe for determination.
Vann supposedly promised Davis a five-year term of employment (rather than at-will
employment) and compensation in the form of stock valued at $125,000 per year. The Court
denied the motion to amend on the grounds of undue delay and prejudice. (See ECF No. 60.)

II.
ANALYSIS
7. 	Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. R. Civ. P. 56(c). In deciding a motion for summary
judgment, the Court views the evidence in the light most favorable to the nonmoving
party and draws all inferences in its favor. See Vizant Techs., LLC v. YRC Worldwide,
Inc., 373 N.C. 549, 556 (2020); N.C. Farm Bureau Mut. Ins. Co. v. Sadler, 365 N.C.
178, 182 (2011).
8. 	The moving party “bears the initial burden of demonstrating the absence of
a genuine issue of material fact.” Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571,
579 (2002). The moving party meets its burden “by proving that an essential element
of the opposing party’s claim is nonexistent, or by showing through discovery that the
opposing party cannot produce evidence to support an essential element of his claim.”
DeWitt v. Eveready Battery Co., 355 N.C. 672, 681 (2002) (citations and quotation
marks omitted). 	If the moving party makes that showing, “the burden shifts to the
nonmoving party to produce a forecast of evidence demonstrating that the nonmoving
party will be able to make out at least a prima facie case at trial.” 	Cummings v.
Carroll, 379 N.C. 347, 358 (2021) (cleaned up). 	The nonmoving party “may not rest
upon the mere allegations or denials of his pleading,” N.C. R. Civ. P. 56(e), but must
instead “come forward with specific facts establishing the presence of a genuine
factual dispute for trial,” Liberty Mut. Ins. Co., 356 N.C. at 579.

9. 	The Morgans. Robin and Robert Morgan move for summary judgment on
all claims against them. As they correctly observe, the complaint does not allege that
they committed any wrongful acts (or any lawful acts, for that matter). 	Davis
concedes that the Morgans have no personal involvement in any alleged misconduct
but argues that each may be sued in his or her capacity as an officer of Davis Funeral
Service. 	That is not the law. 	An officer of a corporation is not liable for the
corporation’s acts “merely by virtue of his office.” Wolfe v. Wilmington Shipyard, Inc.,
135 N.C. App. 661, 670 (1999) (citation and quotation marks omitted). The Morgans
are entitled to summary judgment.
10. 	Breach of Contract. A claim for breach of contract must be brought within
three years after the cause of action accrues. 	See N.C.G.S. § 1-52(1). 	When the
contract requires payment “in installments, the statute of limitations runs against
each installment independently as it becomes due.” 	Martin v. Ray Lackey Enters.,
Inc., 100 N.C. App. 349, 357 (1990). 	This is because each unpaid installment is its
own breach.
11. 	Davis Funeral Service acknowledges that part of Davis’s claim for breach of
contract is timely. 	Davis filed this action in March 2022; any alleged breach based
on a failure to pay wages that became due in March 2019 or later falls within the
three-year limitations period. 	But Davis Funeral Service contends that the statute
of limitations bars the claim to the extent that it is based on the failure to pay
installments of wages that became due before March 2019.

12. 	Davis’s response is baffling. 	He says nothing about the timeliness of the
claim for unpaid wages as pleaded in his complaint, arguing instead that a different
theory of liability in his proposed amended complaint is timely. 	Because the Court
denied leave to amend, the proposed amendment is a nullity, and novel theories
within it are entirely irrelevant.
13. 	Only the claim that is alleged in the complaint matters. That claim is based
on allegations that Davis “worked full-time as Vice President from the beginning of
January 2018” and did not receive his full wages “[d]uring all this time.” 	(Compl.
¶ 20 (emphasis added).) 	Davis has offered no argument to show that his claim to
recover wages that became due before March 2019 is timely. Accordingly, the Court
grants partial summary judgment as to the claim for breach of contract to the extent
that it is based on the failure to pay wages that became due before March 2019. See
Rowell v. N.C. Equip. Co., 146 N.C. App. 431, 434 (2001) (When “the statute of
limitations is properly pled and the facts are not in conflict, the issue becomes a
matter of law, and summary judgment is appropriate.”).
14. 	Unjust Enrichment/Quantum Meruit. Although pleaded separately, the
claims for quantum meruit and unjust enrichment are two sides of the same coin.
Both are claims in “quasi contract or contract implied in law.” Booe v. Shadrick, 322
N.C. 567, 570 (1988). 	When “services are rendered and expenditures made by one
party to or for the benefit of another, without an express contract to pay, the law will
imply a promise to pay a fair compensation therefor.” 	Krawiec v. Manly, 370 N.C.
602, 615 (2018) (quoting Atl. Coast Line R.R. Co. v. State Highway Comm’m, 268 N.C.

92, 95–96 (1996)). But when the parties have made an express contract, the law will
not imply one “with reference to the same matter.” Vetco Concrete Co. v. Troy Lumber
Co., 256 N.C. 709, 713 (1962).
15. 	Davis Funeral Service contends that Davis’s alleged oral employment
agreement, if it exists, is an express contract and that, as a result, he cannot pursue
claims based on a theory of implied contract. This is unpersuasive. A plaintiff may
plead claims for breach of contract and unjust enrichment in the alternative. 	Only
“when an express contract has been proved” is it “error to submit an alternative
implied contract claim to the jury.” 	Catoe v. Helms Constr. & Concrete Co., 91 N.C.
App. 492, 498 (1988). 	No express contract has been proved here. 	Although Davis
Funeral Service purports to concede in its opening brief that an express contract
exists, it disputes Davis’s description of the terms of that contract and has not
articulated its own position on what the terms were. 	Given these disputes and the
uncertain status of the alleged oral contract, it would be premature to dismiss the
alternative claims for unjust enrichment and quantum meruit. The Court therefore
denies the motion for summary judgment as to these claims.
16. 	Defamation. 	At 	the 	hearing, Davis 	Funeral 	Service 	abandoned the
arguments that it had made in support of summary judgment as to the claim for
defamation. The Court therefore denies the motion as to that claim.

III.
CONCLUSION
17. 	For 	all 	these 	reasons, 	the 	Court 	GRANTS 	the 	motion 	for 	summary
judgment as to all claims asserted against Robin Morgan and Robert Morgan. These
claims are DISMISSED with prejudice.
18. 	The Court also GRANTS in part the motion for summary judgment as to
the claim for breach of contract against Davis Funeral Service to the extent that Davis
seeks to recover unpaid wages that became due before 3 March 2019.
19. 	The Court DENIES the motion for summary judgment in all other respects.
The claims for breach of contract (as narrowed), breach of the implied covenant of
good faith and fair dealing, unjust enrichment, and quantum meruit against Davis
Funeral Service and the claim for defamation against Davis Funeral Service and
Tillman shall proceed to trial.
20. 	On or before 30 October 2023, counsel for all parties shall confer and jointly
report via e-mail to the Court’s law clerks their estimate of the length of trial for the
remaining claims and counterclaims.
SO ORDERED, this the 25th day of October, 2023.
/s/ Adam M. Conrad
Adam M. Conrad
Special Superior Court Judge
for Complex Business Cases