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Contract – Agency – Corporate – Former Officer – Real Property

Both appellant Donald Sullivan and appellee TOG Properties, LLC, sued a defendant for causing a fire which damaged timber on property adjacent to the defendant’s. Since (1) TOG owned the timberland, (2) Sullivan’s interest in the timberland came from documents executed by TOG’s former officer, and (3) Sullivan had notice that the former officer no longer worked for TOG, Sullivan knew or should have known that the former officer had no authority to bind TOG.

We affirm summary judgment for TOG.

Contrary to Sullivan’s argument that summary judgment unconstitutionally deprived him of a jury trial, the right to a jury trial accrues only when there is a genuine issue of fact to be decided at trial.

Kenner Day’s role as president of TOG was terminated on May 9, 2010; thus, Day had no actual authority to bind TOG after that date. There were no allegations as to the establishment or ratification of a contract between TOG and Sullivan.

Therefore, we must only decide whether Day had the apparent authority to bind TOG. TOG’s exhibits and affidavits showed that Sullivan knew, or had good reason for knowing, that Day had no authority to bind TOG.

First, the evidence tended to show that Sullivan had been served with TOG’s bankruptcy petition in 2010 as a creditor of the company. The statement of financial affairs served on Sullivan with the bankruptcy petition listed Day under the section “Former partners, officers, directors and shareholders” as an officer or director of TOG “whose relationship with the corporation terminated within one year immediately preceding the commencement of [the bankruptcy] case.” The date of Day’s termination was listed as May 9, 2010.

Second, an agreement purporting to cede to Sullivan any rights to any insurance claims resulting from the 2012 fire was introduced to the trial court in support of TOG’s motion. This agreement between Day and Sullivan, which they had sworn to, signed, and notarized in November and December of 2014, twice identified Day as a former member and registered agent of TOG. Sullivan makes no attempt to explain what authority a former member or agent may reasonably possess that could bind his principal.


Sullivan v. Pugh (Lawyers Weekly No. 011-123-18, 9 pp.) (Philip Berger Jr., J.) Appealed from Pender County Superior Court (Phyllis Gorham, J.) Donald Sullivan, pro se; Ciara Rogers for appellee TOG Properties, LLC. N.C. App.


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