Blue v. Efincia Constr., LLCBlue v. Efincia Constr., LLC
Rossabi Law PLLC, by Amiel J. Rossabi, for Plaintiffs Edward Allen Blue and Blue Construction Consulting, LLC.
Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Spenser T. Smith and Robert C. Cratch, for Defendants Efincia Construction, LLC, Efincia Companies, LLC, and Eric V. Dickinson.
Shirley, Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
3. While the Court does not make findings of fact on a motion for summary judgment, “it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment.” Collier v. Collier, 204 N.C. App. 160, 161–62 (2010) (citation and quotation marks omitted). Accordingly, the following background, drawn from the undisputed evidence submitted by the parties, is intended only to provide context for the Court‘s analysis and ruling and not to resolve issues of material fact.
4. Plaintiff Edward Allen Blue (“Mr. Blue“) is a citizen and resident of Moore County, North Carolina.2 Plaintiff Blue Construction Consulting, LLC (“Blue Construction“) is a North Carolina limited liability company with its principal place
5. In April 2017, Efincia Construction made a written offer of employment to Mr. Blue, which Mr. Blue accepted, for the position of Plumbing Operations Manager, at an annual salary of not less than $65,000.00.7 The written offer also included a profit-sharing component under which Mr. Blue would receive: (a) fifteen percent (15%) of the profits derived from projects completed for and paid in full by new and
6. Following Mr. Blue‘s creation of Blue Construction in December 2017, Efincia Construction paid profits related to various jobs to Blue Construction for the benefit of Mr. Blue.9 Plaintiffs allege that Dickinson demanded that Mr. Blue create a separate limited liability company to receive payment of Mr. Blue‘s profit-sharing portions of the Employment Agreement.10
7. Plaintiffs further allege that, in an effort to force Mr. Blue to forego his profit-sharing under the Employment Agreement, Dickinson conveyed the 5% membership interest in Efincia MA to Mr. Blue and pressured him to “re-invest” his profit-share into Efincia MA with the promise of a greater return in the future, and that Dickinson‘s stated plan was to purchase properties in the name of Efincia MA, use the other corporate Defendants to perform plumbing and electrical work on those
8. Plaintiffs allege that, after Jose Arroyo resigned from Efincia Construction in or about March 2021 and left a void in the performance of electrical work, Dickinson agreed on behalf of Defendants to make Mr. Blue head of operations over all electrical work performed by or on behalf of Defendants and to compensate Mr. Blue with a fifteen percent (15%) commission for all such electrical work (the “Electrical Compensation Plan“).13 Defendants admit that Mr. Blue and Efincia Construction “engaged in conversation regarding a potential profit-sharing arrangement related to future electrical work,” but deny that any agreement was reached and aver that no electrical job or contract was awarded to, contracted by, or otherwise completed by Efincia Construction between the time of that conversation and Mr. Blue‘s resignation, such that no profits accrued under any such arrangement.14
9. Plaintiffs allege that Dickinson, exercising complete domination and control over the corporate Defendants, unfairly exploited the work of Mr. Blue and others and manipulated the financial records and the flow of money between and among the
10. It is undisputed that Mr. Blue resigned his position with Efincia Construction in mid-August 2022.18
11. Mr. Blue and Blue Construction initiated this action by filing a Complaint in Moore County Superior Court on 19 February 2024.19 Defendants filed their
12. On 16 September 2024, Plaintiffs—Mr. Blue, individually and derivatively on behalf of Efincia MA, and Blue Construction—filed the operative Amended Complaint, asserting eight claims for relief: (i) violation of the North Carolina Wage and Hour Act,
13. Defendants filed their Answer to the Amended Complaint on 25 October 2024, asserting affirmative defenses and two counterclaims—one for tortious interference with the employment contracts of three Efincia Construction employees and one for conversion and/or trespass to chattels concerning company property—and requesting a written statement of the amount of monetary relief sought pursuant to Rule 8(a)(2) of the North Carolina Rules of Civil Procedure.22
15. Plaintiffs filed their Reply to Counterclaims on 20 December 2024, denying the material allegations of the counterclaims and asserting the defenses of duress, estoppel, fraud, illegality, and waiver.24
16. On 15 January 2026, Defendants filed the Motion, together with a supporting memorandum, seeking summary judgment on Plaintiffs’ First, Fourth, Fifth, Sixth, Seventh, and Eighth Claims for Relief on the grounds that: (1) the Derivative Claims fail as a matter of law because Plaintiffs lack standing due to their failure to comply with the applicable demand requirements of
17. On 26 February 2026, Plaintiffs filed a Notice of Partial Voluntary Dismissal pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure, voluntarily dismissing without prejudice the Derivative Claims—i.e., the Fifth, Sixth, Seventh,
18. This action was reassigned to the undersigned on 4 March 2026.27
19. After full briefing, the Court held a hearing on the Motion on 29 April 2026, at which all parties were represented by counsel (the “Hearing“).28 The Motion is now ripe for resolution.
II. LEGAL STANDARD
20. Summary judgment is appropriate when “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.”
21. 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). If the moving party carries this burden, the opposing party “may not rest
22. “When the party with the burden of proof moves for summary judgment, a greater burden must be met.” Almond Grading Co. v. Shaver, 74 N.C. App. 576, 578 (1985). The moving party “must show that there are no genuine issues of fact, that there are no gaps in his proof, that no inferences inconsistent with his recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury.” Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 721 (1985); see also Kidd v. Early, 289 N.C. 343, 370 (1976). However, when a party moves for summary judgment on a claim and properly supports all the essential elements of that claim with evidence, and it plainly appears from the pleadings and evidence presented that the movant is entitled to recover on the claim, summary judgment is proper.
The Derivative Claims in Defendants’ Motion are Moot
23. Defendants first seek summary judgment dismissing the Fifth through Eighth Claims for Relief, the Derivative Claims asserted on behalf of Efincia MA, on the ground that Mr. Blue failed to comply with the pre-suit demand requirements of
24. Because the Derivative Claims are no longer pending, the portions of the Motion seeking their dismissal no longer present a live controversy, and the Court does not reach Defendants’ demand-requirement and standing arguments. Those portions of the Motion are DENIED as moot.
25. Defendants present three grounds for summary judgment on the First Claim for recovery under the North Carolina Wage and Hour Act: (i) Blue Construction, a limited liability company, is not an “employee” within the meaning of the Act; (ii) the profit-sharing payments at issue are not “wages“; and (iii) in any event, recovery for projects completed more than two years before the filing of the Complaint is barred by the Act‘s two-year statute of limitations.32 Plaintiffs respond that the Wage Claim is asserted solely by Mr. Blue, that the promised profits are wages as a matter of law, and that the statute of limitations presents contested issues of fact.33
First Ground
26. The first ground requires little discussion. The Act defines an “employee” as “any individual employed by an employer,”
Second Ground
27. The dispositive question raised by the second ground for Defendants’ motion is whether the profit-sharing payments contemplated by the Second Offer Letter constitute “wages” owed to Mr. Blue. The Act defines a “wage” as “compensation for labor or services rendered by an employee whether determined on a time, task, piece, job, day, commission, or other basis of calculation,” and provides that, for purposes of the Act‘s wage-payment provisions, “‘wage’ includes sick pay, vacation pay, severance pay, commissions, bonuses, and other amounts promised when the employer has a policy or a practice of making such payments.”
28. The following facts material to that question are undisputed. Mr. Blue accepted employment on the terms of the Second Offer Letter, which provided a salaried position at $70,000 per year together with “a profit sharing plan of 15% of
30. The Business Court‘s decision in Maurer v. SlickEdit, Inc. is instructive, though it points in the opposite direction from the one Plaintiffs urge. In Maurer, the court looked to the parties’ conduct over the course of the employment relationship. Specifically, the court evaluated the employer‘s consistent reporting of bonus payments as W-2 wages with Social Security and Medicare withholdings and refused to permit the employer‘s post-hoc “about-face” recharacterization of those payments. Maurer v. SlickEdit, Inc., 2006 NCBC LEXIS 1, at *32 (N.C. Super. Feb. 3, 2006). The same conduct-based analysis applied here yields the opposite result: the parties consistently treated the profit-sharing payments as the nonemployee compensation of Blue Construction, and Mr. Blue, who structured, accepted, and enjoyed the benefits of that arrangement for five years, now seeks the post-separation about-face.
31. Plaintiffs’ remaining arguments are not persuasive. First, the inclusion of “bonuses” within the second sentence of
Third Ground
33. The Court does not reach Defendants’ third ground, that recovery for projects completed more than two years before the Complaint was filed is barred by the Act‘s two-year statute of limitations, because the profit-sharing payments are not wages subject to the Act.
34. Defendants’ Motion is therefore GRANTED as to the First Claim for Relief, and that claim is DISMISSED with prejudice.
35. To prevail on a claim for unfair or deceptive trade practices, a plaintiff must show “(1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff.” Dalton v. Camp, 353 N.C. 647, 656 (2001). Two settled limiting principles frame the claim here. First, “employer-employee relationships do not fall within the intended scope of” Chapter 75. Buie v. Daniel Int‘l Corp., 56 N.C. App. 445, 448 (1982); accord Dalton, 353 N.C. at 655–58. Second, “a mere breach of contract, even if intentional,” cannot sustain a Chapter 75 claim absent “substantial aggravating circumstances attending the breach.” Griffith v. Glen Wood Co., 184 N.C. App. 206, 217 (2007) (citation omitted); see Branch Banking & Tr. Co. v. Thompson, 107 N.C. App. 53, 62 (1992). The conduct found sufficiently aggravating “has generally involved forged documents, lies, and fraudulent inducements.” Stack v. Abbott Lab‘ys, Inc., 979 F. Supp. 2d 658, 668 (M.D.N.C. 2013).
36. Plaintiffs’ Response clarifies the posture of the Fourth Claim: it “belongs solely to Plaintiff Blue Construction as an alternative claim,” asserted against the contingency that the right to the profit-sharing payments is ultimately held to belong to Blue Construction rather than to Mr. Blue as employment compensation.42 That
37. Viewed in the light most favorable to Plaintiffs, the forecast evidence does not clear that bar. Plaintiffs point to evidence that Dickinson reduced the calculated “profits” by undisclosed indirect-overhead allocations, including his own salary and expenses associated with unbilled personal work;43 that Efincia Construction‘s records of amounts owed contain errors, discrepancies, and “deceptive omissions,” supporting an inference of manipulated books and an underpayment of “at least $643,870.00“;44 and that Dickinson withdrew substantial and largely unexplained sums, by his own testimony, between “zero and three million dollars,” from the company at a time when, according to Plaintiffs, Defendants attributed nonpayment to inadequate cash flow.45 Accepting all of this as true, it describes the manner in which Defendants calculated, delayed, justified, and ultimately withheld payments
38. Nor do Plaintiffs’ allegations concerning Efincia MA supply the missing aggravation. The undisputed evidence is that Mr. Blue‘s 5% membership interest in Efincia MA was a gift for which he paid no consideration and made no capital contribution, and Plaintiffs forecast no evidence that Mr. Blue was promised, or that any identifiable funds of his were “re-invested” toward, a greater interest in that entity.46
39. Defendants’ Motion is therefore GRANTED as to the Fourth Claim for Relief, and that claim is DISMISSED with prejudice.
WHEREFORE, for the foregoing reasons, the Court hereby GRANTS in part and DENIES in part Defendants’ Motion for Partial Summary Judgment as follows:
- The Motion is GRANTED as to Plaintiffs’ First Claim for Relief (Violation of the North Carolina Wage and Hour Act), and that claim is DISMISSED with prejudice;
- The Motion is GRANTED as to Plaintiffs’ Fourth Claim for Relief (Chapter 75), and that claim is DISMISSED with prejudice;
- The Motion is DENIED as moot as to Plaintiffs’ Fifth, Sixth, Seventh, and Eighth Claims for Relief, which Plaintiffs voluntarily dismissed without prejudice on 26 February 2026;
- Plaintiffs’ request for entry of partial summary judgment in their favor is DENIED; and
- Plaintiffs’ Second Claim for Relief (Breach of Contract) and Third Claim for Relief (Quantum Meruit), and Defendants’ Counterclaims, remain pending and shall proceed to trial.
SO ORDERED, this the 30th day of July 2026.
/s/ A. Graham Shirley
A. Graham Shirley
Special Superior Court Judge for Complex Business Cases