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Thomerson v. DeVito

United States District Court, D. South Carolina, Charleston Division

April 2, 2019

Johnny Thomerson, Plaintiff,
v.
Richard DeVito and Samuel Mullinax, both individually and as Liquidating Shareholder Trustees of Lenco Marine, Defendants.

          CERTIFICATION OF QUESTION TO THE SUPREME COURT OF SOUTH CAROLINA

          Richard Mark Gergel United States District Court Judge

         After reviewing the parties' briefing on a motion for summary judgment, this Court has determined that the case presents a question of law of the State of South Carolina which may be determinative of this case. It also appears to this Court that there is no controlling precedent in the decisions of the Supreme Court of South Carolina. Therefore, pursuant to South Carolina Appellate Court Rule 244, the United States District Court for the District of South Carolina certifies the question of law set forth below.

         I. Certified Question of Law

         Does the three-year statute of limitations of S.C. Code Ann. § 15-3-530 apply to claims for promissory estoppel?

         II. Findings of Fact

         Plaintiff Johnny Thomerson alleges that the Defendants, the former owners of Lenco Marine ("Lenco"), failed to provide Plaintiff a three percent ownership interest in Lenco. The following are undisputed facts, as held in the Court's partial order on summary judgment. Lenco manufactured and sold trim tabs and other products to boat manufacturers, and Defendant Samuel Mullinax served as the CEO and Defendant Richard DeVito was the president. (Dkt. No. 28-9 at ¶ 3 - 4.) Lenco was sold to Power Products, LLC in December 2016. (Id. at ¶ 13.) Plaintiff was hired by Lenco no later than May 2007. (Plaintiffs Deposition, Dkt. No. 28-1 at 35.) Plaintiff testified that during discussions regarding his compensation with Defendant DeVito prior to starting at Lenco, they had a "discussion that we [Plaintiff and Brian Robinson, another employee of Lenco] both wanted to have equity ownership at some point in time in the future." (Id. at 29.) Plaintiff acknowledges that at the time he began at Lenco, he did not yet have an agreement regarding an equity interest in the company, and instead Defendant DeVito stated that they would "work on that as we go on down the road." (Id. at 33 - 34; Plaintiffs Deposition, Dkt. No. 28-2 at 23.) Though Defendants dispute the nature of the conversation, Plaintiff testified that Defendant DeVito ultimately provided some detail on the equity plan in early 2009, [1] informing Plaintiff and Robinson that Lenco was going to buy back a 15 percent interest from a minority shareholder, Matthew Muer, and distribute it as a three percent share to five employees, including Plaintiff and Robinson. (Dkt. No. 28-2 at 26 - 27; 30-31; 35.) Plaintiff believed that the five sets of three percent equity shares would be issued contemporaneously with the stock buyback. (Id. at 30.)

         In 2011, Plaintiff and Robinson had two conversations with Defendant DeVito regarding the ownership share.[2] When Plaintiff and Robinson were in Florida with DeVito, they approached DeVito asking, "where were we with our deal," meaning the "stock transfer." (Plaintiffs Deposition, Dkt. No. 28-3 at 5 - 6.) Defendant DeVito, as they approached, "pretty much blew [them] off." (Id.) On another evening during a cookout at Defendant DeVito's house, Plaintiff testified that he and Robinson again asked about the stock transfer, and Defendant DeVito "abruptly left our presence and went into his house." (Id. at 7.) Robinson resigned shortly thereafter without any ownership share of Lenco. (Id; 29-2 at ¶ 14.)

         Defendant DeVito also told Plaintiff that he did not want to distribute ownership shares in the company while there was a pending lawsuit against Lenco, filed by Bennett Marine. (Dkt. No. 28-2 at 32.) Plaintiff testified that this was because Defendant DeVito wanted to protect them from potential liability in the lawsuit. (Id.; 29-1 at ¶ 6.) The Bennett Marine litigation concluded in September 2013 in favor of Lenco. (Dkt. No. 28-3 at 3.) However, when the allegedly impeding Bennett Marine lawsuit ended, Plaintiff did not receive the promised three percent interest. (Dkt. No. 29-1 at ¶ 10.) When Plaintiff asked about the three percent of equity, Defendant DeVito refused to speak about the shares, telling Plaintiff he "didn't want to talk about it or we'd [DeVito and Plaintiff] talk about it later." (Id.) Finally, near the end of 2016, Plaintiff asked Defendant DeVito whether he "still intend[ed] to fulfill [his] promise to me of my 3%," and DeVito stated "No, I am not." (Id. at ¶ 11; Dkt. No. 28-3 at 12.)

         Plaintiff brought six counts against Defendants: Breach of Contract and Covenant of Good Faith and Fair Dealing (Count 1); Promissory Estoppel (Count 2); Quantum Meruit and Unjust Enrichment (Count 3); Negligent Misrepresentation (Count 4); Constructive Fraud (Count 5), and; the South Carolina Payment of Wages Act ("SCPWA") (Count 6). The District Court has granted summary judgment based on the applicable three-year statute of limitations on each claim except for promissory estoppel.

         III. Legal Standard

         South Carolina Appellate Court Rule 244 provides that the Supreme Court of South Carolina:

in its discretion may answer questions of law certified to it by any federal court of the United States ... when requested by the certifying court if there are involved in any proceeding before that court questions of law of this state which may be determinative of the cause then pending in the certifying court when it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court.

SCACR 244(a). The certification order must set forth: (1) "the questions of law to be answered"; (2) "all findings of fact relevant to the questions certified"; and (3) "a statement showing fully the nature of the controversy in which the questions arose." SCACR 244(b).

         IV. Nature of ...


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