Two Things to Avoid When Opposing a Motion for Summary Judgment

Two Things to Avoid When Opposing a Motion for Summary Judgment

 There aren't any great business law proclamations in Allran v. Branch Banking & Trust Corp., 2013 NCBC 41 [an enhanced version of this opinion is available to lexis.com subscribers], decided late last week, but there a couple of procedural points that might help you avoid having summary judgment entered against your client.

Be Careful Which Defendants You Decide To Dismiss, And How You Dismiss Them

Judge Murphy granted summary judgment on Plaintiff's unfair and deceptive practices act claim against Defendant BB&T. The ruling was entered pretty much because Plaintiff submarined his own case in two ways. 

First, he dismissed his claims with prejudice against BB&T's employee, Corbett.  Plaintiff's claim against BB&T rested on his allegation that Corbett had forged his initials on his financial statement and loan application leading to the defaulted loan at issue.

Be aware that a dismissal with prejudice is equivalent to a disposition on the merits, and it has res judicata effect.  Thus, because "[a] judgment on the merits in favor of the employee precludes any action against the employer where . . . the employer's liability is purely derivative."  Op. ¶38 (quoting Wrenn v. Maria Parham Hosp., 135 N.C. App. 672, 681, 522 S.E.2d 789, 794 (1999), the dismissal of Corbett's employer, BB&T, was appropriate.

Be careful of which Defendants you dismiss from your case, and try to avoid dismissing them with prejudice.

Read this article in its entirety on North Carolina Business Litigation Report, a blog for lawyers focusing on issues of North Carolina business law and the day-to-day practice of business litigation in North Carolina courts.

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