LANGLEY v. AUTOCRAFT, 2024 NCBC 45

STATE OF NORTH CAROLINA
GUILFORD COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 9346
JOSHUA T. LANGLEY,
Plaintiff,
v.
AUTOCRAFT, INC.
Defendant.
__________________________________
RANDOLPH COUNTY
JOSHUA T. LANGLEY,
Plaintiff,
v.
KEITH R. CLAPP,
Defendant.
ORDER AND OPINION ON
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
24 CVS 208
1. 	Before starting his second stint of employment with Autocraft, Inc.,
Plaintiff Joshua T. Langley (“Langley”) drafted a document that he contends entitles
him to a ten percent ownership interest in the business after he completed five years
of work. 	The owner of Autocraft, Keith R. Clapp (“Clapp”), disputes this assertion
and has refused to honor the alleged agreement, prompting this lawsuit. At issue is
whether the document drafted by Langley is an enforceable contract.
2. 	Defendants argue that it is not, and they move pursuant to Rule 56 of
the North Carolina Rules of Civil Procedure (the “Rule(s)”) for summary judgment
Langley v. Autocraft, 2024 NCBC 45.

(the “Motion”), (ECF No. 63). Having considered the Motion, the related briefing, the
arguments of counsel at a hearing on the Motion held 4 June 2024, and other relevant
matters of record, the Court hereby GRANTS the Motion.
Carruthers & Roth, P.A., by Kevin A. Rust, for Plaintiff Joshua T.
Langley.
Tuggle Duggins P.A., by Denis E. Jacobson, Brandy L. Mansouraty,
Daniel 	D. 	Stratton, 	and 	Alexandria 	B. 	Morgan, 	for 	Defendants
Autocraft, Inc. and Keith R. Clapp.
Earp, Judge
I. 	FACTUAL AND PROCEDURAL BACKGROUND
3. 	The Court does not make findings of fact on a motion for summary
judgment. 	Instead, 	the 	Court 	summarizes 	material 	facts 	it 	considers 	to 	be
uncontested. See, e.g., Vizant Techs., LLC v. YRC Worldwide, Inc., 373 N.C. 549, 551
(2020).
4. 	Autocraft was formed by Clapp on 20 March 2000 to manufacture
precision machine components. 	(Br. Supp. Defs.’ Mot. Summ. J. [“Defs.’ Br. Supp”]
Ex. B [“Autocraft Dep.”] 157:19-21, ECF No. 63.3.) 	Since its formation, Clapp has
owned 100% of the stock in Autocraft and has been the sole member of the board of
directors. (Autocraft Dep. 19:2-8, 45:18-46:6, 162:5-10.)
5. 	Around 2013 or 2014, Autocraft employed Langley as a computer
numerical control machine programmer / machinist. (Defs.’ Br. Supp. Ex. A [“Langley
Dep.”] 33:15-20, 36:1-6, ECF No. 63.2.) 	Langley voluntarily resigned from this
position in January 2015 to work for a different company. 	(Langley Dep. 36:17-25.)

On 16 August 2016, Clapp texted Langley indicating that if Langley decided to leave
his current employer, he should give Clapp “a holler.” 	(Langley Dep. 45:23-46:2,
Ex. 1.) 	Clapp and Langley subsequently met to discuss the possibility of Langley
returning to Autocraft. (Langley Dep. 49:13-23, Ex. 2, Ex. 3, Ex. 4, Ex. 5.)
6. 	After 	some 	discussion, 	Langley 	recorded 	the 	terms 	of 	his 	new
employment arrangement on paper and asked Clapp to sign the document in the
parking lot of a Hooters restaurant.1 	(Langley Dep. 76:24-25, 77:15-17, Ex. 6;
Autocraft Dep. 82:14-20.). The document (“Agreement”) is dated 28 December 2016
and provides:
Josh Langley’s Autocraft Contract
• 	$125,000/per year Salary starting on hire date
o 	$2403.85/per week
o 	Paycheck every other week (Bi-weekly)
o 	Salary pay/No punch of time clock/Flexible hours
o 	40-42 hours/per week max
o 	Leave work by 5:00 PM daily (subject to Josh’s decision)
o 	2% cost of living raise per year giving [sic] on hire date of
each year
o 	5% Christmas bonus at end of each year
• 	10% ownership of Autocraft Technologies at 5 year mark from
start date
o 	Contingent upon Josh’s decision to be 10% owner
o 	Review books and debt at 4 year mark
o 	Owner finance the other 90% over the following 5-10 years
• 	3 weeks paid vacation with use of vacation any time of year
including winter
• 	All programming with very little set-up
• 	Computer Setup
o 	Strong Laptop so I can use at work and home
o 	24-27 inch dual monitor setup
o 	Logitech performance mx mouse
• 	MSC to bring in CAPS system to help with keeping tools in stock
1 Sharon Clapp separately signed the document the following day. (Langley Dep. 70:19-20.)

o 	I will need MSC login and access to CAPS system to help
• 	Keep an open understanding about my schooling (College)
• 	Bobcad schooling in Florida for 3 days (ASAP)
• 	Mandatory 	14-30 	day 	notice 	upon 	Josh 	Langley’s 	leave 	if
necessary
• 	Josh Langley is guaranteed employment for at least 10 years.
This contract is guaranteed for the next 20 years with Keith Clapp alive
or dead and as long as Autocraft Technologies is still a functioning
business. All above is guaranteed for the next 20 years with nothing to
change except at Josh Langley’s discretion from the signed date below.
(Joshua T. Langley’s Resp. Br. to Defs.’ Mot. Summ. J. [“Pl.’s Br. Opp.”] Ex. A, ECF
No. 66.2.)
7. 	Following execution of the Agreement, Langley began working for
Autocraft in January 2017. 	(Langley Dep. 85:16-19; Autocraft Dep. 14:23-25.)
Autocraft subsequently terminated Langley on 22 August 2022. 	(Langley Dep.
220:20-22.)
8. 	At issue is the Agreement’s provision pertaining to a “10% ownership of
Autocraft Technologies at 5 year mark from start date.” Despite being employed by
Autocraft for more than five years, Langley did not review the “books and debt at
[the] 4 year mark” and did not receive a ten-percent ownership interest in Autocraft.
He now sues seeking the value of this ten-percent interest.
9. 	The record reflects little agreement on the facts. 	These issues of fact,
however, do not preclude summary judgment. 	As explained below, the sole issue is
whether the document drafted by Langley is an enforceable contract requiring the
transfer of an ownership interest in Autocraft. The Court concludes that it is not.
10. 	Langley initiated this action by filing a Complaint for breach of contract
and declaratory judgment against Autocraft in Guilford County Superior Court on

19 December 2022 (the “Guilford Action”). 	While being deposed as Autocraft’s
30(b)(6) witness, however, Clapp testified that he signed the Agreement in his
individual capacity and not on behalf of Autocraft. 	(Autocraft Dep. 17:23-18:15.)
Accordingly, Langley filed a second action against Clapp individually, this time in
Randolph County Superior Court on 1 February 2024 (the “Randolph Action”).2
11. 	By Order dated 14 March 2024, the Court consolidated the Guilford and
Randolph Actions. (See Order on Consent Mot. to Consolidate, ECF No. 57.)
12. 	Defendants filed the Motion on 2 April 2024. 	After full briefing, the
Court held a hearing on the Motion on 4 June 2024, at which all parties were
represented by counsel. (Not. of Hr’g, ECF No. 75.)
13. 	The Motion is now ripe for disposition.
II. 	LEGAL STANDARD
14. 	“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.’” 	Da Silva v. WakeMed, 375 N.C. 1, 10
(2020) (quoting N.C. R. Civ. P. 56(c)). 	“A genuine issue of material fact ‘is one that
can be maintained by substantial evidence.’” 	Curlee v. Johnson, 377 N.C. 97, 101
(2021) (quoting Ussery v. Branch Banking & Tr. Co., 368 N.C. 325, 335 (2015)).
2 Langley also sued Sharon Johnson, (formerly Sharon Clapp), Clapp’s ex-wife. 	However,
after deposing Ms. Johnson on 26 March 2024, (ECF No. 58), Langley voluntarily dismissed
his claims against her on 28 March 2024, (ECF No. 60).

“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion and means more than a scintilla or a permissible
inference.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681 (2002) (cleaned up).
15. 	The 	party 	moving 	for 	summary 	judgment 	“bears 	the 	burden 	of
establishing that there is no triable issue of material fact[.]” 	Cummings v. Carroll,
379 N.C. 347, 358 (2021) (citation and quotation marks omitted). 	A movant may
satisfy its burden by proving that “an essential element of the opposing party’s claim
does not exist, cannot be proven at trial, or would be barred by an affirmative defense,
or by showing through discovery that the opposing party cannot produce evidence to
support an essential element of [the] claim[.]” 	Dobson v. Harris, 352 N.C. 77, 83
(2000) (citations omitted). 	“[T]he trial judge must view the presented evidence in a
light most favorable to the nonmoving party.” Belmont Ass’n v. Farwig, 381 N.C. 306,
310 (2022) (quoting Dalton v. Camp, 353 N.C. 647, 651 (2001)).
III. 	ANALYSIS
16. 	Of Defendants’ several arguments in support of summary judgment, one
is 	dispositive—the 	Agreement’s 	last 	sentence, 	giving 	Langley 	the 	unfettered
discretion to change its terms, renders illusory Langley’s consideration for an
agreement to transfer a ten percent ownership interest in Autocraft to him.
17. 	“The elements of a claim for breach of contract are (1) existence of a valid
contract and (2) breach of the terms of that contract.” 	Supplee v. Miller-Motte Bus.
Coll., Inc., 239 N.C. App. 208, 216 (2015) (citation omitted). 	“[A] valid contract

requires (1) assent; (2) mutuality of obligation; and (3) definite terms.” 	Charlotte
Motor Speedway, LLC v. Cnty. of Cabarrus, 230 N.C. App. 1, 7 (2013).
18. 	“One of the elements of a valid contract is a promise, which has been
defined as an assurance that a thing will or will not be done.” 	Bowman v. Hill, 45
N.C. App. 116, 117 (1980). 	“An apparent promise which, according to its terms,
makes performance optional with the promisor no matter what may happen, or no
matter what course of conduct in other respects he may pursue, is in fact no promise.”
Id. at 117-18.
19. 	Here, the Agreement provides: “All above is guaranteed for the next 20
years with nothing to change except at Josh Langley’s discretion[.]” Accordingly, the
Agreement confers upon Langley “an unlimited right to determine the nature or
extent of his performance[,]” rendering the consideration provided by Langley
illusory. Wellington-Sears & Co. v. Dize Awning & Tent Co., 196 N.C. 748, 752 (1929);
see also Sears Roebuck & Co. v. Avery, 163 N.C. App. 207, 219 (2004) (“One of the
commonest kind of promises too indefinite for legal enforcement is where the
promisor retains an unlimited right to decide later the nature or extent of his
performance. This unlimited choice in effect destroys the promise and makes it
merely illusory.”).
20. 	Plaintiff cites the North Carolina Supreme Court’s recent opinion in
Canteen v. Charlotte Metro Credit Union for the proposition that a unilateral change-
of-terms provision does not make a contract illusory. 	No. 10A23, 2024 N.C. LEXIS
347 (N.C. May 23, 2024). 	In Canteen, plaintiff opened a checking account with

defendant Charlotte Metro Credit Union (the “Credit Union”) and entered into a
standard membership agreement. Id. at **2. The membership agreement contained
a “Notice of Amendments” provision which provided:
Except as prohibited by applicable law, [defendant] may change the
terms of this Agreement. We will notify you of any change in the terms,
rates, or fees as required by law. We reserve the right to waive any term
in this Agreement. Any such waiver shall not affect our right to future
enforcement.
Id. (alteration in original).
21. 	In 2021, the Credit Union amended its membership agreement to
require arbitration for certain disputes. 	Id. at **3. 	Pursuant to the “Notice of
Amendments” provision in the membership agreement, the Credit Union sent
plaintiff notice of the amendment on three occasions. Id. The notices provided that
members could opt-out of the amendment and included instructions on how to do so.
Id. at **4. 	Plaintiff did not opt-out of the agreement to arbitrate and filed a class
action complaint against the Credit Union. Id. at **5. Following the Credit Union’s
filing of a motion to stay the action and to compel arbitration, plaintiff argued that
the “Notice of Amendments” provision made the Credit Union’s consideration for the
agreement illusory. Id. at **7 n. 3.
22. 	Relying on the California Court of Appeals’ decision in Badie v. Bank of
Am., 67 Cal. App. 4th 779 (1998), and the North Carolina Court of Appeals’ decision
in Sears Roebuck and Co. v. Avery, 163 N.C. App. 207 (2004), the Supreme Court held
that “[c]hange-of-terms provisions permit unilateral amendments to a contract so
long as the changes reasonably relate back to the universe of terms discussed and
anticipated in the original contract.” 	Canteen, 2024 N.C. LEXIS 347, at **16. This

is so because “changes which relate back to the ‘universe of terms’ of the original
agreement are consistent with the covenant of good faith [and fair dealing].” 	Id. at
**11 (citing Sears, 163 N.C. App. at 218).
23. 	The Agreement here differs from those at issue in Sears and Canteen.
In both of those cases, the agreements were standardized forms not individually
negotiated. 	See Sears, 163 N.C. App. at 215 (“An adhesion contract is typically a
standardized form offered to consumers of goods and services on essentially a take it
or leave it basis without affording the consumer a realistic opportunity to bargain
and under such conditions that the consumer cannot obtain the desired product or
services except by acquiescing in the form contract.” (citation and quotation marks
omitted)). As explained in the Restatement 2d of Contracts:
One of the purposes of standardization is to eliminate bargaining over
details of individual transactions, and that purpose would not be served
if a substantial number of customers retained counsel and reviewed the
standard terms. Employees regularly using a form often have only a
limited 	understanding 	of 	its 	terms 	and 	limited 	authority 	to 	vary
them. Customers do not in fact ordinarily understand or even read the
standard terms. They trust to the good faith of the party using the form
and to the tacit representation that like terms are being accepted
regularly by others similarly situated. But they understand that they
are assenting to the terms not read or not understood, subject to such
limitations as the law may impose.
Restatement 2d of Contracts § 211, cmt. b.
24. 	Our Supreme Court observed that in the consumer context, “change-of-
terms 	provisions 	are 	a 	necessary 	and 	efficient 	way 	for 	companies 	to 	update
contractual provisions without cancelling accounts and renegotiating contractual
terms every time modification may be required.” Canteen, 2024 N.C. LEXIS 347, at
**12. Additionally, while consumers may not have the power to negotiate under an

adhesion contract, “the market provides a way for consumers to respond to policies
with which they disagree . . . [C]ompetitor companies can provide alternatives for
consumers, forcing improvements or updates to products or services, including terms
to satisfy consumers’ desires.” Id. at **12 n. 5.
25. 	But the Agreement in this case is not a standardized form. 	It not one
that is “essential to a system of mass production and distribution.” Restatement 2d
of Contracts § 211, cmt. a. Instead, it was individually negotiated.
26. 	Furthermore, as acknowledged by the Court of Appeals in Sears, “an
otherwise illusory contract may be remedied because a limitation on a promisor’s
freedom of choice ‘may be supplied by law.’” Sears, 163 N.C. App. at 220. Important
to the Supreme Court’s decision in Canteen was the fact that “the Notice of
Amendments provision explicitly limited its scope by stating ‘[e]xcept as prohibited
by applicable law.’” 	Canteen, 2024 N.C. LEXIS 347, at **14-15; cf. Patrick v. Altria
Grp. Distrib. Co., 570 S.W.3d 138, 144 (Mo. Ct. App. 2019) (“The fact that an employer
has the unilateral right to amend an arbitration agreement may not render the
agreement illusory, if the employer’s power to modify the agreement is meaningfully
restricted.”). There is no similar language restricting Langley’s ability to change the
Agreement’s terms here.3 	Accordingly, Langley’s consideration for the Agreement
3 The membership agreement in Canteen also included a “Governing Law” provision,
which provided:
This Agreement is governed by the credit union’s bylaws, federal laws
and regulations, the laws, including applicable principles of contract
law, and regulations of the state in which the credit union’s main office
is located, and local clearinghouse rules, as amended from time to time.

was illusory, making a promise to transfer a ten percent ownership interest to him
unenforceable.
IV. 	CONCLUSION
27. 	WHEREFORE, the Court GRANTS Defendants’ Motion for Summary
Judgment. 	The Guilford Complaint and the Randolph Complaint are DISMISSED
with prejudice. Plaintiff’s Motion to Reopen Discovery, (ECF No. 71), is DENIED as
moot.
IT IS SO ORDERED, this the 23rd day of July, 2024.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases
Id. at **2-3. Accordingly, the credit union did not have carte blanche to amend the
membership agreement.