CYNTHIA SMITH-PRICE, Plaintiff-Employee v. CHARTER PINES BEHAVIORAL CENTER, DEFENDANT-EMPLOYER, LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Carrier

VINCENT BURLEY, Employee, Plaintiff v. U.S. FOODS, INC., EMPLOYER, and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Carrier and GALLAGHER BASSETT SERVICES, INC., Third Party Administrator, Defendants No. COA13-860 Filed 1 April 2014 Workers’ Compensation — subject matter jurisdiction — contract modification — last act analysis The Industrial Commission erred in a workers’ compensation case by concluding that it did not have subject matter jurisdiction. A modification to plaintiff employee’s contract was approved by defendant U.S. Foods Inc. in Charlotte. N.C.G.S. § 97-36 extended subject matter jurisdiction to plaintiff’s claim since the final binding act occurred in North Carolina. Judge DILLON dissenting. Appeal by plaintiff from opinion and award entered 28 June 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 December 2013. The Sumwalt Law Finn, by Vernon Sumwalt, Mark T. Sumwalt, and Lauren Hester, for Plaintiff-Appellant. McAngus, Goudelock & Courie, P.L.L.C., by Raymond J. Williams, III, for Defendants-Appellees. HUNTER, JR., Robert N., Judge. Vincent Burley (“Plaintiff’) appeals from the 28 June 2013 opinion and award of the Full Commission of the North Carolina Industrial Commission (the “Commission”), which concluded that the Commission did not have subject matter jurisdiction to hear Plaintiffs claim. Plaintiff argues the Commission had subject matter jurisdiction because a modification to his contract was approved by defendant U.S. Foods Inc. (“U.S. Foods”) in Charlotte. We agree and reverse the Commission’s opinion and award. I. Facts & Procedural History On 8 July 2011, Plaintiff filed a claim for benefits with the Commission seeking compensation for a back injury suffered while working for U.S. Foods as a truck driver. U.S. Foods denied that North Carolina has jurisdiction over Plaintiff’s claim, but admitted liability under the Georgia Workers’ Compensation Act and is. currently paying Plaintiff disability compensation under Georgia law. The matter came on for a hearing before Deputy Commissioner Philip A. Baddour, III (“Dep. Comm. Baddour”) on 17 April 2012 and a written order was filed oh 13 December 2012. The evidence presented at the hearing tended to show the following facts. Plaintiff is a resident of Augusta, Georgia and was a 39-year-old truck driver at the time of his 13 December 2012 hearing before the Commission. In 1993, Plaintiff graduated from truck driving school in Charleston, South Carolina, and obtained his commercial driving license from this course of study. Plaintiff has been a truck driver since graduating from this program. U.S. Foods supplies and delivers food to restaurants, schools, sports venues, hotels, and many other types of businesses. U.S. Foods operates many distribution centers nationwide to supply “hundreds of thousands of customers” with its food products. Plaintiff testified that U.S. Foods hired him as a delivery truck driver in May 2000. Plaintiff completed his initial hiring paperwork, including a driver’s application, medical exam, and written driving exam, in Fort Mill, South Carolina. Plaintiff completed additional pre-hiring paperwork, including a road-test in Columbia, South Carolina and a drug-screening in Georgia. After completing his initial paperwork, U.S. Foods offered Plaintiff employment, and Plaintiff accepted the written offer. Plaintiff signed this paperwork in Fort Mill, South Carolina and was employed at-will. Plaintiff drove a planned route as part of his employment. The route was concentrated around the Augusta area, with stops in Georgia and South Carolina. Plaintiffs truck and trailer were stowed every day at a drop yard in Augusta. Plaintiffs route did not involve travel in North Carolina nor was his truck ever dropped in North Carolina. U.S. Foods merged with another company, PYA Monarch, and the Columbia drop yard, where Plaintiff was assigned, was dissolved in 2002. Plaintiff testified that U.S. Foods offered to transfer supervision of his employment to either their Charlotte division or their Lexington, South Carolina division after the merger. Plaintiff chose to work for the Charlotte division because U.S. Foods arranged for his loaded delivery truck to be delivered near his Augusta home. Had Plaintiff chosen the Lexington division, he would have been required to drive his personal vehicle to retrieve his loaded truck in Lexington. Plaintiffs transfer to the Charlotte division was thereafter approved by U.S. Foods’s human resources department in Charlotte. Plaintiffs job title and responsibilities did not change after he was transferred to the Charlotte division from the Columbia division. Plaintiff stated that he was working the “same job, just a different division,” although Plaintiff made deliveries to different customers and drove a different route. Plaintiff was also switched from an hourly weight-based pay system to a component pay system. As a result, Plaintiff saw his pay increase from $400 to $500 a week under the weight-based system to between $900 and $1,400 per week under the component system. Plaintiff worked continuously for U.S. Foods for nine years, was never terminated or laid off, and never completed re-hiring paperwork during this period. Plaintiff injured Ms back on 23 September 2009 while lifting a case of liquid milk during a delivery to a Some Drive-In in Evans, Georgia. U.S. Foods terminated Plaintiff’s employment on 1 October 2009. U.S. Foods’s Charlotte division Transportation Manager Alton Abernathy (“Mr. Abernathy”) also testified at the 17 April 2012 hearing. Mr. Abernathy stated that upon the merger of U.S. Foods and PYA Monarch, U.S. Foods “went to all the drivers [in the Columbia drop yard] that were being displaced . .. and offered them jobs” if they transferred branches. If Plaintiff rejected the transfer, he would have received a severance package. Mr. Abernathy further described the different pay systems between the Charlotte and Columbia divisions: Plaintiff’s component pay system paid his commission on “pieces and stops and miles with a base and safety pay” rather than Plaintiff’s prior pay system, which was based on weight carried. Mr. Abernathy also described the Charlotte division’s accommodations for its drivers, noting that the branch delivered drivers’ loads to fifteen different sites, including Plaintiff’s drop site in Augusta. Plaintiff’s transfer was approved and signed by three individuals: Doug Jolly, U.S. Foods’s Transportation Manager at its Fort Mill division; Kim DaM, a human resources officer at U.S. Foods; and Mel Smith, who provided final approval from the human resources department. U.S. Food’s human resources department has been located in Charlotte smee 4 December 2000, and both Kim DaM and Mel Smith worked m the Charlotte office. Lastly, U.S. Foods’s Human Resources Coordinator, Rebecca Reed (“Ms. Reed”), testified at the hearing. Ms. Reed discussed the terms of Plaintiff’s mitial hiring contract, notmg that U.S. Foods could modify the terms of Plaintiff’s employment under the contract. After hearing the foregoing evidence, Dep. Comm. Baddour concluded that the a modified contract does not constitute a contract “made” m North Carolma for purposes of the relevant jurisdiction granting statute, N.C. Gen. Stat. § 97-36 (2013). Dep. Comm. Baddour also concluded that the final act to create Plaintiff’s employment contract did not occur m North Carolina. Accordingly, Dep. Comm. Baddour ordered that Plaintiff’s claim be denied for lack of subject matter jurisdiction. Plaintiff appealed to the Commission on 13 December 2012. The Commission heard the case on 22 May 2013 and issued an opmion and order on 28 June 2013 affirming Dep. Comm. Baddour’s order. Plaintiff timely filed written notice of appeal with tMs Court on 2 July 2013. II. Jurisdiction & Standard of Review Plaintiffs appeal from the Commission’s opinion and award lies of right to this Court pursuant to N.C. Gen. Stat. § 7A~29(a) (2013). Accord N.C. Gen. Stat. § 97-86 (2013). The only issue on appeal is whether the Industrial Commission had subject matter jurisdiction over Plaintiffs claim. At present, whether the Commission has subject matter jurisdiction over Plaintiff’s case depends on whether a contract for employment was consummated in North Carolina pursuant to N.C. Gen. Stat. § 97-36. See Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367, 369, 396 S.E.2d 626, 628 (1990) (“The jurisdiction of the Industrial Commission is limited by statute.”). Plaintiff argues that (i) because U.S. Foods’s Charlotte division approved Plaintiff’s transfer to oversight by the Charlotte division from the Columbia division, Plaintiffs contract was modified and (ii) because the “last act” of approving the modification occurred in Charlotte, the contract of employment was made in North Carolina. “Appellate review of an award from the Industrial Commission is generally limited to two issues: (i) whether the findings of fact are supported by competent evidence, and (ii) whether the conclusions of law are justified by the findings of fact.” Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 563, 555 (2006). “However, as to ajurisdictional question, this Court is not bound by the findings of fact of the lower tribunal. This Court has the duty to make its own independent facts as to jurisdiction.” Lentz v. Phil’s Toy Store,_N.C. App._,_, 747 S.E.2d 127, 130 (2013); see also Lucas v. Li’l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). The Commission concluded as amatter of law that Plaintiffs contract was not modified and that the last act necessary to create Plaintiffs original contract was made out of state, depriving the Industrial Commission of subject matter jurisdiction to hear Plaintiff’s case. “Conclusions of law by the Industrial Commission are reviewable de novo by this Court.” Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585 (2000). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and citation omitted). III. Analysis a. Contract Modification Under Section 97-36 A contract modification is not explicitly referenced in Section 97-36, which grants the Commission subject matter jurisdiction over certain accidents that occur out of state. N.C. Gen. § 97-36 provides [w]here an accident happens while the employee is employed elsewhere than in this State and the accident is one which would entitle him or his dependents or next of kin to compensation if it had happened in this State, then the employee or his dependents or next of kin shall be entitled to compensation (i) if the contract of employment was made in this State. Plaintiff argues that common law rules concerning modifications of contract apply. See Lineberry v. Town of Mebane, 219 N.C. 257, 258, 13 S.E.2d 429, 430 (1941) (“The common law, to the extent therein provided, is modified. Except as so modified it still prevails.”); N.C. Gen. Stat. § 4-1 (2013) (declaring portions of the common law not in conflict with the general statutes remain in full force). We agree with Plaintiff and have consistently applied common law rules of contract to claims filed under the Workers’ Compensation Act. See, e.g., Hollowell v. N.C. Dep’t of Conservation & Devel., 206 N.C. 206, 208, 173 S.E. 603, 604 (1934); Hojnacki v. Last Rebel Trucking, Inc., 201 N.C. App. 726, 689 S.E.2d 601, 2010 WL 10963 at *3-4 (2010) (unpublished) (applying common law principles of contract law, such as offer and acceptance, to a claim filed under the Workers’ Compensation Act). This Court has held that a lapse in employment and subsequent rehiring via a “last act” made in North Carolina created a contract that was “made” in North Carolina for jurisdictional purposes under Section 97-36. Baker v. Chizek Transp., Inc., 210 N.C. App. 490, 711 S.E.2d 207, 2011 WL 904271 at *4-5 (2011) (unpublished). Similarly, under the common law of contracts, a modification to the terms of a contract may create a new underlying contract that was “made” in North Carolina. See, e.g., Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450, 457, 400 S.E.2d 476, 480 (1991) (holding that an addendum letter was a new contract because it modified a prior lease agreement). Section 97-36 also employs the phrase “employment contract,” which encompasses a broader scope of employment than “contract of hire,” a phrase that covers only the initial hiring of an individual. Compare N.C. Gen. Stat. § 97-36 with N.C. Gen. Stat. § 97-2(2) (2013) (using “contract of hire”). This broader expanse includes a contract modification, providing a basis for a contract being “made” in North Carolina under Section 97-36. The dissent cites Larson’s Workers’ Compensation Law § 143.03(4) (2011) for the proposition that when “a contract has achieved an identifiable situs, that situs is not changed merely because the contract is modified in another state.” While we acknowledge that Larson’s is a learned treatise in this field, we must construe Section 97-36 using the long-standing canons of construction in this state which require a plain language approach to interpreting Section 97-36. This Court’s precedent identifies that a modified contract containing the required formation elements is a new contract. See, e.g., NRC Golf Course, LLC v. JMR Golf LLC,_N.C. App._,_, 731 S.E.2d 474, 480 (2012) (“Parties to a contract may agree to change its terms; but the new agreement, to be effective, must contain the elements necessary to the formation of a contract.” (emphasis added)). Like other newly formed contracts, a modified contract may be made in this state. The General Assembly crafted Section 97-36 with a full view that the phrase “employment contract” contemplated both contracts of hire as well as modifications of existing contracts which, by long-standing precedent, are new agreements. See id,.; compare N.C. Gen. Stat. § 97-36 with N.C. Gen. Stat. § 97-2(2) (using “contract of hire”). As such, we do not interject our own view of the legislature’s intended meaning and instead apply existing precedent and the plain language of Section 97-36 to this question of first impression. See Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (“The legislative purpose of a statute is first ascertained by examining the statute’s plain language.”). Further, while the Larson’s passage cites other state court decisions for the notion that a situs is not changed by contract modification, other jurisdictions have recognized explicitly that a contract modified within state borders confers jurisdiction. See, e.g., Kilburn v. Grande Corp., 287 F.2d 371, 373-74 (5th Cir. 1961) (holding that Louisiana had jurisdiction over a modified contract of employment where the original employment contract was formed in Texas, but additional consideration for employment was negotiated in Louisiana); Kuzel v. Aetna Ins. Co., 650 S.W.2d 193, 195-96 (Tex. App. 1983) (holding Maryland had jurisdiction where the original contract of hire was formed in Texas, but a later contract modification was agreed to in Maryland). The Commission held that modification of an existing contract does not fall within the scope of a contract “made” in Section 97-36. The lack of a bar against such use, this Court’s precedents recognizing common law contract principles, and use of the phrase “employment contract” in Section 97-36 require a different result. Accordingly, a modification of an employment contract may be a proper basis to find a contract is “made” within North Carolina under Section 97-36. b. Whether Plaintiff’s Contract was Modified Our next inquiry is whether Plaintiff’s contract was actually modified under common law contract principles. The same tests for formation of contract apply to whether a modified contract is enforceable. NRC Golf Course, _N.C. App. at_, 731 S.E.2d at 480 (“Parties to a contract may agree to change its terms; but the new agreement, to be effective, must contain the elements necessary to the formation of a contract.” (quotation marks and citation omitted)); Corbin v. Langdon, 23 N.C. App. 21, 26, 208 S.E.2d 251, 254 (1974). The three requisite elements to form an enforceable contract are offer, acceptance, and consideration. Cap Care Grp., Inc. v. McDonald, 149 N.C. App. 817, 822, 561 S.E.2d 578, 582 (2002). Consequently, we must consider whether each element exists to determine whether a modified employment contract was formed between Plaintiff and U.S. Foods. “It is essential to the formation of any contract that there be mutual assent of both parties to the terms of the agreement so as to establish a meeting of the minds.” Harrison v. Wal-Mart Stores, Inc., 170 N.C. App. 545, 550, 613 S.E.2d 322, 327 (2005) (quotation marks and citation omitted); see also Wooten v. S.R. Biggs Drug Co., 169 N.C. 64, 68, 85 S.E. 140, 142 (1915) (holding that “the one thing without which a contract cannot be made ... is the assent of the parties to the agreement, the meeting of the minds upon a definite proposition”). As such, a contract modification must also have an offer of modified terms and acceptance on those terms. Corbin, 23 N.C. App. at 26, 208 S.E.2d at 255. At-will contracts may also be modified by the parties to form a new contract. Arndt v. First Union Nat. Bank, 170 N.C. App. 518, 526, 613 S.E.2d 274, 280 (2005) (“The employer, in an at will relationship, can modify, unilaterally the future compensation to be paid to an employee. If the employer modifies the terms of an [employee] at will; and, the employee knows of the change, the employee is deemed to have acquiesced to the modified terms, if he continues the employment relationship.”). Here, Mr. Abernathy testified that the company met with displaced drivers after its merger with PYA Monarch. Mr. Abernathy said the company offered its displaced drivers jobs with the subsuming branches. U.S. Foods extended its offer for its employees to transfer branches at a company safety meeting in Charlotte. The alternative to transferring branches was to receive a severance package from U.S. Foods. Thus, Plaintiff had a choice: he could accept a transfer or he could cease employment and receive a severance package. This fundamental choice qualifies as a new offer under the traditional definition of a contract. Plaintiff accepted the offer. At the Charlotte meeting where his new terms of employment were proposed, Plaintiff negotiated the details of his transfer with his supervisor. Specifically, Plaintiff requested that his trailers be dropped near his home in Augusta. Plaintiff also completed paperwork at the Charlotte safety meeting to accept the transfer, although U.S. Foods’s Charlotte human resources department had to approve the transfer before it was “official.” From the foregoing, it is clear Plaintiff accepted a new offer modifying his existing at-will employment agreement. Finally, there must also be consideration in support of the modified contract. Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 466, 323 S.E.2d 23, 27 (1984) (“It is established law that an agreement to modify the terms of a contract must be based on new consideration or on evidence that one party intentionally induced the other party’s detrimental reliance.” (citation and quotation marks omitted)). “Consideration sufficient enough to support a contract consists of any benefit, right, or interest bestowed upon the promisor, or any forbearance, detriment, or loss undertaken by the promisee.” Fairfield Harbour Prop. Owners Ass’n, Inc. v. Midsouth Golf, LLC, 215 N.C. App. 66, 75, 715 S.E.2d 273, 282 (2011) (quotation marks and citation omitted). This Court does not typically consider the adequacy of consideration, as “inadequate consideration, as opposed to the lack of consideration, is

SIU S. TONG, et al., Plaintiffs v. DAVID DUNN, TIMOTHY KRONGARD, ED MASI, SOPHIA WONG and JANET WYLIE, Defendants No. COA12-1261 Filed 17 December 2013 1. Appeal and Error — motion to dismiss appeal — denied Defendants’ motion to dismiss the appeal under Hill v. West, 177 N.C. App. 132, was denied by the Court of Appeals. Hill has been repeatedly limited to its specific, unusual facts, which were not present here. 2. Collateral Estoppel and Res Judicata — claim splitting— federal and state actions — separate wrongs The trial court erred in an action by the founder of a company arising from a merger by concluding that the doctrines of claim-splitting and res judicata applied. A separate wrong was asserted in the federal action and in this case; plaintiff’s claims in the federal action involved claims arising out of his position as an employee while the current action involved a wrong inflicted upon plaintiff in his capacity as a common shareholder. Appeal by plaintiff from order entered 25 May 2012 by Judge James L. Gale in Orange County Superior Court. Heard in the Court of Appeals 9 April 2013. Poyner Spruill LLP, by Steven B. Epstein and Andrew H. Erteschik, for plaintiff-appellant. Kilpatrick Townsend & Stockton LLP, by John M. Moye, for defendants-appeUees. GEER, Judge. Plaintiff Siu S. Tong appeals from an order granting judgment on the pleadings to defendants David Dunn, Timothy Krongard, Ed Masi, Sophia Wong, and Janet Wylie on Mr. Tong’s claim for breach of fiduciary duty. Defendants contended and the trial court agreed that Mr. Tong’s claim in this case was barred by res judicata because the claim in this case arose from the same set of operative facts as the claims in Mr. Tong’s earlier employment action. We hold that the order is contrary to our Supreme Court’s holding in Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993), and, therefore, reverse and remand. Facts Mr. Tong was the founder of Engineous Software, Inc. (“Engineous”). During the events that gave rise to this action, Mr. Tong continued to be a key employee of Engineous, a common shareholder of Engineous, and a member of the Board of Directors of Engineous elected to represent the common shareholders. The common shareholders collectively owned a minority interest in the company. In Spring 2006, the Engineous Board of Directors, amajority of which were preferred shareholders, hired Wachovia Bank to explore opportunities to sell Engineous. Ultimately, Dassault Systems S.A. (“Dassault”) offered $35-40 million for Engineous. Although Mr. Tong believed that Dassault’s offer was not in the best interests of the common shareholders, the Board ultimately agreed to a merger with Dassault in which Dassault acquired Engineous for approximately $40 million and merged Engineous into ENG Acquisition, Inc. (“ENG”), a wholly-owned subsidiary of Dassault. On 11 July 2011, Mr. Tong filed suit in Wake County Superior Court against Dassault, Engineous, Dassault Systemes Simulia K.K. formerly known as Engineous Japan, Inc., Janet Wylie, Edward Masi, Tim Krongard, David Dunn, Sophia Wong, and Charles Johnson. This action was ultimately removed to federal court (“the federal action”). In an amended complaint, Mr. Tong alleged that the individual defendants knew that the proposed merger agreement between Engineous and Dassault made Mr. Tong’s continued employment a condition of Dassault purchasing Engineous. On 10 June 2008, however, Mr. Tong resigned from the Engineous Board of Directors because of his concerns regarding the manner in which the proposed sale of Engineous to Dassault would affect the common shareholders. On 13 June 2008, three days before the execution of the merger agreement, Engineous, acting through defendant Krongard with the knowledge and consent of the other individual defendants (all of whom were members of Engineous’ Board of Directors), promised Mr. Tong a payment of at least $300,000.00 (the “carve-out payment”) if he would execute an employment agreement agreeing to continue to work for Dassault after the merger. The amended complaint alleged that Mr. Krongard knew that Mr. Tong would have to also sign a release agreement in order to receive the carve-out payment, but Mr. Krongard intentionally or negligently, with the knowledge and consent of the other individual defendants, failed to inform Mr. Tong of that requirement. Mr. Tong asserted that Mr. Krongard’s offer of the carve-out payment without mention of the required release was intended to fraudulently induce Mr. Tong into signing an employment agreement with Dassault. Further, Mr. Tong alleged that Engineous and the individual defendants knew that he would likely exercise his rights as a minority shareholder to challenge the sale. On 16 June 2008, Mr. Tong signed the employment agreement with Dassault. On the same day, after Mr. Tong signed the employment agreement, Engineous and Dassault signed the merger agreement. The merger agreement required that Mr. Tong, as well as certain other Engineous employees, have active and valid employment agreements with Dassault at the time the merger closed in order for the deal to be consummated. On 8 July 2008, the shareholders approved the merger agreement. Mr. Tong did not vote in favor of the merger agreement and preserved his rights as a common shareholder to object to the merger. On 14 July 2008, however, defendant Janet Wylie, the CEO of Engineous, notified Mr. Tong for the first time that in order to receive the $300,000.00 carve-out payment, he would have to sign a release extinguishing any claims he had as a common shareholder to challenge the sale of Engineous. Because Mr. Tong refused to sign the release, he was not paid the $300,000.00 carve-out payment. On 21 July 2008, the merger closed and other Engineous executives who had signed employment contracts and releases were paid the promised carve-out payments. The federal amended complaint further alleged that Mr. Tong complied with his employment agreement by commencing work for Dassault. Mr. Tong alleged, however, that Dassault breached the employment agreement by not paying him performance bonuses and by undermining Mr. Tong’s ability to earn compensation specified in the agreement as part of an incentive plan. The amended complaint alleged that Dassault terminated Mr. Tong’s employment on 13 January 2010, but refused, in breach of the terms of the employment agreement, to pay reasonable business expenses and severance pay. Dassault also failed to pay a Japanese retirement allowance that Mr. Tong alleged was due for his service as a director of Engineous Japan, Inc. Mr. Tong asserted claims in the federal action against the individual defendants (defendants Krongard, Wylie, Masi, Dunn, Wong, and Johnson) and Engineous for fraudulent inducement and negligent misrepresentation based on Mr. Tong’s having been induced to sign the employment agreement in exchange for $300,000.00 without being told that receipt of the sum was conditioned on his signing a release of his claims as a common shareholder. Mr. Tong also alleged a claim for breach of contract against Engineous for failure to pay the $300,000.00 and against Dassault for tortious interference with the agreement to pay Mr. Tong $300,000.00. In addition, Mr. Tong sued Dassault for breach of the employment agreement, violation of the North Carolina Wage and Hour Act, and breach of contract and/or quantum meruit for failure to pay the Japanese retirement allowance. Mr. Tong stated in his amended complaint that he consented to arbitrate the claims brought against Dassault for breach of contract and violation of the Wage and Hour Act. On 20 July 2011, 10 days after he filed his first lawsuit, Mr. Tong and 47 other plaintiffs, all common shareholders of Engineous, filed this action in Orange County Superior Court against individual defendants David Dunn, Timothy Krongard, Ed Masi, Sophia Wong, and Janet Wylie, all of whom were preferred shareholders of Engineous and members of Engineous’ Board of Directors. Also joined as a defendant was ENG in its own capacity and as the successor to Engineous. The Orange County Superior Court complaint alleged that the individual defendants owed the common shareholders a fiduciary duty, which included a duty to maximize the value to all shareholders, including the common shareholders, in connection with Dassault’s acquisition of Engineous. The complaint alleged that “[t]he Individual Defendants breached these duties by knowingly and recklessly placing their own interests above those of all shareholders, self-dealing, and failing to adequately oversee the Engineous[] officers, failing to maximize the value of the sale of Engineous, thereby actually and proximately causing Mr. Tong and the other Common Shareholders to suffer damages in an amount to be proven at trial.” The complaint further asserted a claim for aiding and abetting these breaches of fiduciary duty against ENG. In support of these claims, plaintiffs alleged that Mr. Tong agreed to work with Mr. Krongard and Wachovia Bank to explore opportunities to sell Engineous. Although Mr. Tong’s efforts resulted in four well-known potential buyers expressing interest, with two of them entering a bidding process, the board of directors cut off Mr. Tong’s interactions with the potential buyers. The complaint further alleged that during board meetings, statements were made reflecting that certain board members were placing their own interests ahead of the common shareholders. Mr. Tong refused to sign board minutes for one of the key board meetings because, the complaint alleged, of “the omission of many statements and the failure to acknowledge the apparent agreement between the preferred board members that their individual interests should and would drive the decision making process going forward (casting aside the common shareholders’ interests).” The board and Engineous’ executive management then attempted to block Mr. Tong’s interaction with the potential buyer, Dassault, so as to limit the flow of information to Mr. Tong and the other common shareholders. Although board members recognized that Engineous was not in a strong position to sell and although Mr. Tong urged the board to wait until after the roll out of Engineous’ new enterprise product because it would likely significantly improve the company’s sale value, the board refused to wait. The board members justified that refusal by expressing concern about a potential cash flow shortage in the future, and yet awarded substantial executive bonuses to company officers, including the individual defendants. The complaint further alleged that the preferred stock board members, including the individual defendants, voted to set aside funds to reward employees and executives who supported the merger that favored preferred shareholders and to buy general releases from certain key employees. Dassault initially made an offer of $35 million to $40 million for Engineous. Mr. Dunn, a member of the board representing preferred shareholders, proposed that the board accept the sale price, while Mr. Tong proposed that the board wait for a competing offer from Siemens. Mr. Tong expected that an additional bidder would offer a higher price. The complaint alleged that the board, however, showed little interest in attempting to negotiate a higher sale price, but rather were more interested in proceeding to a closing that would benefit the preferred shareholders. The complaint alleged that Mr. Krongard stated that particular terms offered by Dassault -- including the speed at which the preferred shareholders would collect the sale proceeds, the size of the escrow, and the timing of the closing - were of paramount importance. Those terms did not, however, assist the common shareholders or protect the value of the common shareholders’ interests in Engineous. In addition, according to the complaint, throughout the merger and acquisition process, the individual defendants Ms. Wylie and Mr. Krongard interfered with Mr. Tong’s right, as a director representing common shareholders and as a common shareholder himself, to interact with participants and gather information about ongoing developments. Dassault acquired Engineous by merger with ENG for approximately $40 million. The complaint alleged that several board members made false representations to common shareholders to represent that the deal accorded with their fiduciary responsibilities when, in fact, the individual defendants “were considering their own self-interest first.” The complaint also asserted that had defendants acted in accord with their fiduciary responsibilities, the ultimate valuation of Engineous would have been higher which would have benefitted the common shareholders. Further, according to the complaint, “in closing this transaction in the manner described above, and as they did, the Defendants were not acting in the best interests of the Company and all its shareholders, but rather in their own self-interest, causing harm to Mr. Tong and the Common Shareholders.” As relief, the Orange County complaint sought a declaration that the Engineous board’s actions constituted breaches of fiduciary duty. The complaint also sought compensatory damages suffered as a result of defendants’ wrongdoing. The individual defendants filed an answer dated 19 September 2011. Defendant ENG filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 29 September 2011. In the federal action, on 7 October 2011, Mr. Tong filed a stipulation of dismissal with prejudice of his claims against Engineous and the individual defendants for fraudulent inducement to contract and negligent misrepresentation, as well as his claims against Engineous for breach of contract and against Dassault for tortious interference with the contract to pay the carve-out payment. On 24 October 2011, the individual defendants in the Orange County action filed an amended answer adding an affirmative defense that “[p]laintiff Tong’s claims against the Individual Defendants are barred by the doctrines of res judicata and claim splitting, given that Plaintiff Tong filed a prior action against the Individual Defendants . . . and that action was dismissed with prejudice.” The answer contended that “[u] nder the doctrines of res judicata and claim splitting, the prior disposition of the Federal Action operates as a bar on Plaintiff Tong’s present action against the Individual Defendants, and thus Plaintiff Tong’s claims are subject to dismissal as a matter of law.” The individual defendants then moved for judgment on the pleadings as to Mr. Tong’s claims on 30 November 2011. The trial court granted ENG’s motion to dismiss on 26 March 2012. On 25 May 2012, the trial court also granted the individual defendants’ motion for judgment on the pleadings as to Mr. Tong’s claims. The court concluded “that issues Tong now seeks to litigate in the Present Action were raised by the pleadings in the [federal action] and res judicata applies. Rather than asserting different injuries arising from independent successive acts, Tong complains that Individual Defendants set out on a concerted course of action designed to complete the Merger, including buying Tong’s consent through false pretenses and at the same time extinguishing the rights of common shareholders, including Tong’s. While other shareholders . . . were not party to the [federal action] and are not then subject to res judicata, Tong’s claims are barred by his dismissal of the [federal action] with prejudice.” On 5 August 2012, the remaining plaintiffs other than Mr. Tong filed a notice of voluntary dismissal without prejudice. Mr. Tong filed a notice of appeal from the order granting judgment on the pleadings on 7 August 2012. Motion to Dismiss Anneal We first address defendants’ motion to dismiss Mr. Tong’s appeal. Defendants contend that this Court must dismiss the appeal under Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662 (2006). This Court has, however, repeatedly limited Hill to the specific, unusual facts present in that case. The circumstances present in Hill are not found in this case and, therefore, Hill is not controlling here. In Hill, the plaintiffs filed a negligence action arising out of a traffic accident. Id. at 133,627 S.E.2d at 662-63. The trial court entered an order granting two defendants’ Rule 12(b)(6) motion to dismiss and a subsequent order granting summary judgment to three other defendants, with claims against one defendant remaining unresolved. Id. at 133-34, 627 S.E.2d at 663. This Court dismissed the plaintiffs’ appeal from the partial summary judgment order as interlocutory, noting in addition that the plaintiffs had failed to include a statement of grounds for appellate review in violation of the Rules of Appellate Procedure. Id. at 133, 627 S.E.2d at 663. On remand, the trial court entered a consent order that purported to be a voluntary dismissal pursuant to Rule 41(a)(1) of the Rules of Civil Procedure of the claims against the remaining defendant. Hill, 177 N.C. App. at 135, 627 S.E.2d at 664. The order, however, included a special provision stating that the trial court “ ‘specifically order[ed], with the consent of all parties, that if this case is remanded for trial, all claims against [the remaining defendant] may be reinstated as the Plaintiffs deem necessary and that the prior dismissals without prejudice will not be pled as a bar to said claims.’ ” Id. In other words, contrary to Rule 41(a)(1), the claims against the remaining defendant could be reinstated at any time without regard to the one-year limitation contained in Rule 41(a)(1). When the plaintiffs then appealed the summary judgment order a second time, this Court first noted that the plaintiffs had again violated the Rules of Appellate Procedure by failing to include a statement of the grounds for appellate review. Hill, 177 N.C. App. at 134, 627 S.E.2d at 633. Relying on Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005), the Court found no basis for suspending the Rules of Appellate Procedure under Rule 2. Hill, 177 N.C. App. at 134, 627 S.E.2d at 663-64. The Court then pointed out, in addition, that the unique consent order was a “manipulation of] the Rules of Civil Procedure in an attempt to appeal the 2003 summary judgment that otherwise would not be appealable” and was not a final judgment within the meaning of Rule 54 of the Rules of Civil Procedure. Id. at 135, 627 S.E.2d at 664. Based on both the appellate rules violation and the attempt to manipulate the Rules of Civil Procedure, this Court dismissed the second appeal. Id. at 136, 627 S.E.2d at 664. In subsequent cases, this Court has declined to dismiss appeals under Hill under circumstances identical to those in this case. In Curl v. Am. Multimedia, Inc., 187 N.C. App. 649, 654, 654 S.E.2d 76, 80 (2007), this Court limited Hill’s holding “to the facts of that case,” noting that “Hill did not attempt to distinguish its holding from the significant body of case law holding contra” and that “the holding in Hill was apparently based in part on the appellants’ ‘manipulative’ behavior and failure to follow the Rules of Appellate Procedure[.]” See also Goodman v. Holmes & McLaurin Attorneys at Law, 192 N.C. App. 467, 472, 665 S.E.2d 526, 530 (2008) (declining to dismiss appeal based on Hill even though appeal followed voluntary dismissal without prejudice of claims surviving trial court’s order because plaintiff followed Rules of Appellate Procedure). This Court also rejected an identical argument based on Hill in Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261 (2007). This Court explained: “The stipulation of dismissal did not contain any additional language purporting to give plaintiff any time beyond that permitted by Rule 41(a)(1) to pursue her claim against Days Inn. The procedural posture of this case does not

THE ESTATE OF GARY VAUGHN, TAMMY VAUGHN, ADMINISTRATRIX, Plaintiff v. PIKE ELECTRIC, LLC, PIKE ELECTRIC, INC., and KENNETH SHALAKO PENLAND, Defendants No. COA13-448 Filed 19 November 2013 1. Appeal and Error — interlocutory orders and appeals— denial of motions to dismiss — substantial right — Workers’ Compensation Act exclusivity provision The denial of a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(1) and the exclusivity provision of the Workers’ Compensation Act in a negligence case affected a substantial right and were immediately appealable. Further, the denial of defendants’ N.C.G.S. § 1A-1, Rule 12(b)(6) motions to dismiss were immediately appeal-able as affecting a substantial right to the extent that they involved the trial court’s jurisdiction over this matter. 2. Workers’ Compensation — Woodson employer exception— failure to allege intentional misconduct The trial court’s order denying defendant Pike Electric’s motions to dismiss under N.C.G.S. § 1A-1, Rules 12(b)(1) and 12(b)(6) in a negligence case was reversed. Plaintiff offered no basis to believe that Pike Electric was aware of, intended, or was substantially certain that defendant Penland’s actions on that day would result in decedent’s death. Plaintiff failed to allege uncontroverted evidence of defendant Pike Electric’s intentional misconduct. 3. Workers’ Compensation — Pleasant co-employee exception— willful, wanton, and reckless negligence The trial court’s order denying defendant Penland’s motions to dismiss under N.C.G.S. § 1A-1, Rules 12(b)(1) and 12(b)(6) in a negligence case was affirmed. An employee may exhibit willful, wanton, and reckless negligence either when he intentionally injures a coworker or when he does so with manifest disregard to the consequences of his actions. Defendant Penland’s alleged direction to send decedent up a utility pole despite decedent’s severe lack of training and expertise was sufficient to create an inference that Penland was manifestly indifferent to the consequences of his actions under either Rule 12(b)(1) or Rule 12(b)(6). Appeal by Defendants from order entered 25 February 2013 by Judge Gary M. Gavenus in Rutherford County Superior Court. Héard in the Court of Appeals 11 September 2013. Podgomy Law, P.A., by George Podgomy, Jr., and Price, Smith, Hargett, Petho & Anderson, by Richard L. Anderson, for Plaintiff. Roberts & Stevens, P.A., by F. Lachicotte Zemp, Jr. and Robin A. Seelbach, for Defendants Pike Electric, LLC and Pike Electric, Inc. Bennett & Guthrie, P.L.L.C., by Richard V. Bennett, Roberta King Latham, and Joshua H. Bennett, for Defendant Kineth Shalako Penland. STEPHENS, Judge. Factual and Procedural Background This case arises from the death of Gary Vaughn (“Decedent”). He was electrocuted on 29 October 2009 while working as a groundman for Defendants Pike Electric, LLC and Pike Electric, Inc. (collectively, “Pike Electric”) and died as a result of that injury. Almost three years later, on 4 October 2012, Decedent’s surviving spouse and the administratrix of his estate, Tammy Vaughn (“Plaintiff’), filed a negligence complaint against Pike Electric and Decedent’s supervisor, Defendant Kineth Penland (“Penland”), in Rutherford County Superior Court. In her complaint, Plaintiff alleges the following: 10. . . . Decedent was employed by Pike Electric as a groundman. As a groundman, . . . Decedent assisted foremen, linemen[,] and other employees of Pike Electric who worked on... overhead distribution lines .... 11. [Groundmen]... were neither trained nor permitted to perform work on poles with energized lines . .. due to the risk of electrocution and/or death inherent in such work. 13. On the morning of October 29, 2009,... Decedent was employed as a groundman in a crew overseen by Penland [, which had been] instructed to retrofit transformers on overhead power lines.... 14. As a groundman, the duties to be performed by . . . Decedent during this work were prescribed and circumscribed by the Pike Electric [work methods and safety manuals]. These duties did not include working on power lines; especially work on energized power lines. 15. [At the time of his death, Decedent had been employed as a groundman for less than two months] and had not received any training or job assessment during that period of time. [Defendants] knew that... Decedent had received no training to perform the work required of a lineman. 16. Defendants knew that . . . Decedent had ... no previous experience with power line distribution and transmission and had worked as a truck driver prior to being employed by... Pike Electric. 17. Defendants knew that. . . Decedent had received no training as a lineman and... was not [permitted to] climb [] poles or work[] on or near energized lines or equipment____ 18. Retrofitting transformers is an inherently dangerous activity as it involves de-energizing the transformer by disconnecting the stinger from the primary line, replacing the lightning arrester, installing guy sticks, installing a fused cutout[,] and re-energizing the transformers. 19. . . . Defendants knew that undertaking such a task required specific training and experience and that instructing a novice groundman such as ... Decedent to perform such work was certain to result in death or serious injury. 20. ... Penland instructed... Decedent to climb the utility pole [that] was supporting [the] overhead power lines . . . and to begin the work of retrofitting the transformer. 21. The power lines that Penland instructed ... Decedent to work on were high voltage distribution lines. They were energizedf,] uninsulated[,] and carried 7200 volts of electricity. 22. Defendants knew that [groundmen] such as Decedent were not qualified, nor permitted, to undertake any of those dangerous activities. 23. Nevertheless,... Decedent was... instructed to use a “shotgun” stick to de-energize the pole. This involved the dangerous step of removing the hotline clamp from the primary line which would leave the primary line exposed. This is a task reserved for [a] trained and experienced lineman. 24. Defendants knew that . . . Decedent had neither the training nor experience to safely carry out such a task[,] yet instructed him to do so regardless. 25. . . . Decedent was not supervised nor provided with adequate personal protective equipment while undertaking the tasks assigned to him. 26. Shortly after... Decedent climbed the utility pole, the remaining crewman heard a loud noise from the top of the pole and turned to see . . . Decedent hanging limp from the utility pole. 27. The other members of. . . Decedent’s crew were then forced to perform a pole[-]top rescue of... Decedent. 28. Resuscitation efforts were attempted[,] but [Decedent] did not survive his injuries. 29. As the foreman and/or employee in charge on October 29, 2009, Penland’s duties and responsibilities were prescribed by . . . OSHA regulations and [the Pike Electric safety manual]. These duties included... ensuring that all lines to be worked on were de-energized, . . . all employees followed applicable safety rules, and ... all of the employees in the work crew possessed the necessary information and work skills ... to perform the work carefully. 30. . . . Defendants knew, or should have known, that groundmen and other untrained and inexperienced employees were . . . instructed to perform the inherently dangerous activities reserved for trained linemen. 33. ... OSHA determined that Defendant Pike Electric had previously been cited by North Carolina OSHA for violations ... in North Carolina as well as in other states where [it provides] similar services. 34. . . . Pike [Electric] . . . was aware that employees such as . . . Decedent were being placed in[] hazardous situations that were substantially certain to cause injury or death. 35. . . . [Pike Electric] was cited for [ten] serious safety violations in the [S]tate of Georgia in 2001 following the fatal electrocution of an employee while upgrading an electrical system. 37. ... [Pike Electric] was cited for safety violations in the [S]tate of Florida in 2003 following [an employee injury] after [the injured employee] contacted] an energized power line. 38. Following [an] investigation [in this case], OSHA issued citations to [Pike Electric because]: a. ... An employee classified as a groundmanf, i.e., Decedent,] was allowed to perform work as a lineman for which he had not been trained[; and] b. ... [Decedent] was working in close proximity to 7200 volts . . . without wearing insulating gloves or... sleeves. Defendants Pike Electric and Penland moved to dismiss Plaintiffs complaint in December of 2012 under Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure and section 97-10.1 (“the exclusivity provision”) of the North Carolina Workers’ Compensation Act (“the Act”). Pursuant to those rules, Defendants asserted that the trial court lacked subject matter jurisdiction to proceed with the case and that Plaintiff had failed to state a claim on which relief could be granted. The motions were heard on 18 February 2013 and, one week later, denied. Defendants appeal. Discussion Defendants appeal the trial court’s order denying their motions to dismiss under Rules 12(b)(1) and 12(b)(6). On both motions, we reverse as to Pike Electric and affirm as to Penland. I. Appellate Jurisdiction Defendants’ appeal is interlocutory. It is well settled that an order denying a motion to dismiss made pursuant to the exclusivity provision of the Act and either Rule 12(b)(6) or Rule 12(b)(1) is interlocutory. Trivette v. Yount, _ N.C. App. _, _, 720 S.E.2d 732, 734 (2011) (“[T]he trial court’s order denying Defendant’s motion to dismiss pursuant to Rule 12(b)(1) ... is interlocutory.”) [hereinafter Trivette I\, affirmed in part, reversed in part on other grounds, and remanded, 366 N.C. 303, 735 S.E.2d 306 (2012); Block v. Cnty. of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418 (2000) (“[A] denial of a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) is an interlocutory order from which no appeal may be taken immediately.”) (citation, brackets, certain punctuation, and internal quotation marks omitted). “An order is interlocutory if it is made during the pendency of an action and does not dispose of the case [, ] but requires further action by the trial court in order to finally determine the entire controversy.” Trivette I,_N.C. App. at _, 720 S.E.2d at 734. Generally, a party cannot immediately appeal from an interlocutory order. Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006). “The rationale behind [disallowing the immediate appeal of interlocutory orders] is that no final judgment is involved in such a denial and the movant is not deprived of any substantial right that cannot be protected by a timely appeal from a final judgment which resolves the controversy on its merits.” Block, 141 N.C. App. at 276-77, 540 S.E.2d at 418. Because the trial court’s denial of Defendants’ motions to dismiss did not finally dispose of Plaintiff’s claims in this case, it is interlocutory and, therefore, not generally subject to immediate appellate review. Nevertheless, an interlocutory order may be reviewed on appeal when either “(1) . . . there has been a final determination as to one or more of the claims and the trial court certifies that there is no just reason to delay the appeal, [or] (2) ... delaying the appeal would prejudice a substantial right.” Milton v. Thompson, 170 N.C. App. 176, 178, 611 S.E.2d 474, 476 (2005). Because the trial court did not certify that there was no just reason to delay Defendants’ appeal, review is proper only if the delay would affect a substantial right. We hold that it would. A. Denial of Defendants’ Motions to Dismiss Under Rule 12(b)(1) As Pike Electric points out, our Supreme Court has determined that the denial of a motion to dismiss under Rule 12(b)(1) and the exclusivity provision of the Act affects a substantial right “and will work injury if not corrected before final judgment____” See Burton v. Phoenix Fabricators & Erectors, Inc., 362 N.C. 352, 661 S.E.2d 242 (2008) (remanding to the Court of Appeals for consideration of the merits of an appeal that was brought on the denial of the defendant’s Rule 12(b)(1) motion to dismiss the plaintiff’s negligence action under the exclusivity provision of the Indiana workers’ compensation statute). Therefore, Defendants’ appeal as to that element of the denial of their respective motions to dismiss — Rule 12(b)(1) — is proper. B. Denial of Defendants’ Motions to Dismiss Under Rule 12(b)(6) In footnote 2 of his brief, Penland states that his argument “will focus [exclusively] on the trial court’s ruling regarding [his motion to dismiss] pursuant to Rule 12(b)(6).” However, he goes on to attempt to preserve review of the denial of his motion to dismiss under Rule 12(b) (1) “should this Court determine that the trial court erred in dismissing his action under [Rule 12(b)(1)].” This is impermissible. Defendant’s ipse dixit statement is not sufficient to preserve appellate review. Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure states that, in order to preserve an issue for appellate review, a party must offer “reason or argument” in support of that issue. If not, the issue will be deemed abandoned. N.C.R. App. P. 28(b)(6). Because Penland intentionally omitted any reason or argument that the trial court erred in dismissing his motion under Rule 12(b)(1), that issue is deemed abandoned. Nevertheless, we elect to review the denial of Penland’s motion to dismiss as a jurisdictional matter under Rule 12(b)(1). Lee v. Winget Rd., LLC, 204 N.C. App. 96, 98, 693 S.E.2d 684, 687 (2010) (“[A]n appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte.”) (citation and internal quotation marks omitted). In their briefs, Defendants state that their appeals of the trial court’s denial of their motions to dismiss pursuant to Rule 12(b)(6) are properly before this Court under Burton. This is incorrect. The Supreme Court’s opinion in Burton allowed appellate review of the trial court’s denial of a motion to dismiss as affecting a substantial right pursuant to Rule 12(b)(1) and the exclusivity provision of another state’s workers’ compensation act. Id. It did not address whether jurisdiction was present for an appeal of the denial of a motion to dismiss under Rule 12(b)(6). Indeed, neither Pike Electric nor Penland has cited any case allowing review of the denial of a motion to dismiss under Rule 12(b)(6) and the exclusivity provision of the Act on grounds that such denial affects a substantial right. After reviewing the case law, we are unable find a decision of either appellate court addressing the validity of an interlocutory appeal from the denial of a motion to dismiss under Rule 12(b)(6) and the exclusivity provision. Accordingly, whether the trial court’s denial of a motion to dismiss under Rule 12(b)(6) and the exclusivity provision of the Act is immediately appealable as affecting a substantial right is a matter of first impression. As discussed above, our Supreme Court has determined that the denial of a motion to dismiss under Rule 12(b)(1) and the exclusivity provision of the Act is immediately appealable as affecting a substantial right. In this case, Defendants limit their arguments regarding the trial court’s denial of their motions to dismiss under Rule 12(b)(6) to the issue of jurisdiction, arguing that Plaintiff failed to state a claim upon which relief may be granted because the superior court did not have jurisdiction to determine her claim since it arose under the exclusivity provision of the Act. Importantly, Defendants do not argue on appeal that Plaintiff failed to state a claim upon which relief can be granted pursuant to North Carolina tort law. Because the Supreme Court has determined that the denial of a motion to dismiss for lack of jurisdiction under the exclusivity provision of the Act affects a substantial right, we conclude that the denial of Defendants’ Rule 12(b)(6) motions to dismiss is immediately appealable as affecting a substantial right to the extent that those motions were asserted pursuant to the exclusivity provision of the Act. Accordingly, to the extent that they involve the trial court’s jurisdiction over this matter, we review Defendants’ appeals on the merits. II. Standard, of Review “The standard of review on a motion to dismiss under Rule 12(b) (1) for lack of jurisdiction is de novo.” Dare Cnty. v. N.C. Dep’t of Ins., 207 N.C. App. 600, 610, 701 S.E.2d 368, 375 (2010) (citations and internal quotation marks omitted). Under Rule 12(b)(6), [t]he motion to dismiss . . . tests the legal sufficiency of the complaint. In ruling on the motion the [factual] allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted. Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). On a motion to dismiss under Rule 12(b)(6), the court is not, however, required to accept mere conclusory allegations, unwarranted deductions of fact, or unreasonable inferences as true. Strickland, v. Hedrick, 194 N.C. App. 1, 20, 669 S.E.2d 61, 73 (2008) (citation and internal quotation marks omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 167 L. Ed. 2d 929, 934 (2007) (“While a complaint attacked by a [Federal] Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions^ Indeed,] a formulaic recitation of the elements of a cause of action will not do[.]”) (citations, internal quotation marks, and brackets omitted). III. Analysis The exclusivity provision of the Act states that “the rights and remedies [provided to] the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee ... as against the employer at common law or otherwise on account of... injury or death.” N.C. Gen. Stat. § 97-10.1 (2011). The social policy behind [this provision] is that injured workers should be provided with dignified, efficient^] and certain benefits for work-related injuries and that the consumers of the product are the most appropriate group to bear the burden of the payments. The most important feature of the typical workers’ compensation scheme is that the employee and his dependents give up their common law right to sue the employer for negligence in exchange for limited but assured benefits. Consequently!,] the negligence and fault of the injured worker ordinarily is irrelevant. Pleasant v. Johnson, 312 N.C. 710, 712, 325 S.E.2d 244, 246-47 (1985). Under the exclusivity provision, a worker is generally barred from bringing an action in our courts of general jurisdiction against either his employer or a co-employee. Id. at 713, 325 S.E.2d at 247. Instead, the worker must pursue his or her action before the North Carolina Industrial Commission. In cases involving intentional injury by an employer or co-employee, however, our Supreme Court has stated that the worker may bring suit at common law. Id. Over time, this rule has been applied to two different circumstances. First, when a worker wishes to maintain an action against his employer, our Supreme Court has directed us to ask (a) whether the worker suffered injury or death and (b) whether the employer intentionally engaged in misconduct knowing that such conduct was substantially certain to cause serious injury or death. Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991). If the answer to both questions is “yes,” then the worker “or the personal representative of the estate],] in [the] case of death, may pursue a civil action agains

ARNOLD FLOYD JOHNSON, Plaintiff v. CROSSROADS FORD, INC., Defendant No. COA13-173 Filed 15 October 2013 1. Evidence — affidavit—summary judgment — erroneously excluded —abuse of discretion The trial court abused its discretion in a wrongful termination case by excluding an affidavit presented by plaintiff prior to a summary judgment hearing. The affidavit from the individual hired to replace plaintiff was timely served upon defendant, the substance of the affidavit did not contradict any previous sworn testimony of the affiant, and the contents of the affidavit were .not contradictory to plaintiff’s complaint. 2. Employer and Employee — wrongful termination — correct evidentiary standard — genuine issue of material fact — summary judgment erroneous The trial court erred in a wrongful termination case by granting summary judgment in favor of defendant employer. Although the trial court did not use the wrong evidentiary standard as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, plaintiff’s evidence created a genuine issue of material fact as to whether plaintiff’s age was the reason for his termination. Appeal by plaintiff from order entered 21 August 2012 by Judge Howard E. Manning in Wake County Superior Court. Heard in the Court of Appeals 14 August 2013. Glenn, Mills, Fisher & Mahoney, P.A., by Stewart W. Fisher, for plaintiff-appellant. CranJUl Sumner & Hartzog LLP, by Paul H. Derrick and Sara B. Warf, by defendant-appellee. North Carolina Advocates for Justice, by Winslow Wetsch, PLLC, by Laura J. Wetsch, amicus curiae. McCullough, Judge. Plaintiff Arnold Floyd Johnson appeals from the trial court’s order, granting summary judgment in favor of defendant Crossroads Ford, Inc. and dismissing plaintiff’s claim that he was wrongfully terminated based on his age in violation of the North Carolina Equal Employment Practices Act (section 143-422.1, et seq., of the North Carolina General Statutes) with prejudice. After careful review, we reverse and remand the trial court’s order. I. Background On 17 February 2011, plaintiff Arnold Floyd Johnson filed a complaint against defendant Crossroads Ford, Inc., a North Carolina Corporation operating numerous car dealerships within North Carolina and Virginia, alleging wrongful termination. Specifically, plaintiff alleged he was wrongfully terminated by defendant based on his age in violation of the North Carolina Equal Employment Practices Act, section 143-422.1, et seq., of the North Carolina General Statutes. The complaint alleged the following: Plaintiff was bom on 9 April 1950. In March 2000, plaintiff was hired by defendant as a salesperson. Defendant’s president and principal owner Glenn Boyd (“President Boyd”) stated “that he could promote [plaintiff], so [p]laintiff should let [President Boyd] know what he was interested in doing, but that this was ‘a young man’s business.’ ” During his employment, plaintiff was promoted to Finance and Insurance Manager, then Business and Development Center Manager, and then Sales Manager at Crossroads Ford of Cary (“Crossroads Ford”). In 2007, plaintiff was promoted to the position of General Manager at Crossroads Ford. Plaintiff alleged that after he became General Manager, defendant’s Vice-President Allen Boyd would repeatedly refer to plaintiff in “an age-related derogatory manner,” call plaintiff “old man” up to five or six times in a single day, and say plaintiff could not hear a ringing telephone because of plaintiffs age when he did not have a hearing problem. In 2009, defendant hired Noah Woods, a thirty-five (35) year old male to replace plaintiff as General Manager of Crossroads Ford. Plaintiff was demoted to the position of Director of Sales and Service. Plaintiff further alleged that on 26 April 2010, a salesman named Patrick Rowe approached plaintiff and informed him that a customer was interested in purchasing a used Mustang convertible. Rowe wanted to sell plaintiff’s wife’s car, a Mustang convertible that had been sitting in the back lot of Crossroads Ford since April 2010. Plaintiff agreed to sell his wife’s car “but told [Rowe] that they would have to work it out with Vice-President Boyd to determine Rowe’s commission and how to complete the sale.” The customer gave plaintiff a check for the vehicle but the vehicle was not tendered to the customer because plaintiff wanted to wait until he talked to Vice-President Boyd about the transaction. On or about 31 April 2010, Vice-President Boyd informed plaintiff by phone that he was terminated for stealing. Plaintiff alleged that defendant’s reason for terminating plaintiff was false and pre-textual. On 5 January 2012, defendant filed an amended answer, denying many of plaintiff’s allegations. The amended answer admitted that Rowe advised customers that plaintiff was selling his wife’s used vehicle that was.sitting in defendant’s employee parking lot based on Rowe’s “understanding of corporate policy and his belief that Plaintiff had obtained authorization to sell his vehicle through the dealership [.]” Rowe heard plaintiff quote a sales price of $17,500.00 to one of the customers and “[t]hinking that the customer was going to finance the vehicle through the dealership, [Rowe] presented the customer with a credit application.” Plaintiff interceded, told Rowe that the credit application was not necessary, and told the customers to write a check payable to plaintiff personally. Defendant admitted that Vice-President Boyd confirmed to plaintiff that “his employment had been terminated for taking a corporate opportunity; selling his personal vehicle at the dealership to [a] customer of the dealership on company time with no benefit to the company and without authorization.” On 11 June 2012, defendant filed a motion for summary judgment. On 18 July 2012, plaintiff gave notice of filing of several documents including numerous depositions, an affidavit of Noah Woods, and several exhibits. On 20 July 2012, defendant filed a motion to strike the affidavit of Noah Woods and also filed numerous affidavits in support of its summary judgment motion. Following a hearing held on 23 July 2012, the trial court granted defendant’s motion for summaiy judgment and dismissed plaintiff’s case with prejudice. From this order, plaintiff appeals. II. Standard of Review “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted). The moving party bears the burden of establishing the lack of a triable issue of fact. If the movant meets its burden, the nonmovant is then required to produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial. Furthermore, the evidence presented by the parties must be viewed in the fight most favorable to the non-movant. Thompson v. First Citizens Bank & Trust Co., 151 N.C. App. 704, 706, 567 S.E.2d 184, 187 (2002) (internal citations and quotation marks omitted). III. Discussion Plaintiff presents the following issues on appeal: (A) whether the trial comb erred by disregarding the affidavit of Noah Woods and (B) whether the trial court erred by granting summary judgment in favor of defendant. A. Affidavit of Noah Woods Plaintiff argues that the trial court erred by disregarding the affidavit of Noah Woods and finding that it was “presented at the 11th hour,” “inherently incredible,” and “inconsistent” with plaintiffs complaint. We agree. On 18 July 2012, plaintiff filed and served upon defense counsel the affidavit of Noah Woods, the thirty-five (35) year old who was hired by defendant to serve as General Manager of Crossroads Ford in 2009. Woods’ affidavit provided he was hired to replace plaintiff. It also stated the following, in pertinent part: 8. During the time that [plaintiff] and I worked together ..., I observed that Allen Boyd appeared to give [plaintiff] a hard time and to needle him. On several occasions I heard Allen refer to [plaintiff] as “old man.” 9. Allen Boyd did not use “old man” as a term of endearment. 10. Based upon my observations of the interactions between [plaintiff] and Allen Boyd, I would say that Allen Boyd knew that [plaintiff] did not like to be referred to as “old man” and that Allen Boyd could see that it was humiliating to [plaintiff.] 13. I am aware of the circumstances surrounding [plaintiff’s] termination from the company. 17. As the General Manager, I was fully aware of the sale. [Plaintiff] did not tiy to deceive anyone or hide the fact that he was selling the car. I approved of him selling the car to the customers. 18. [Plaintiff] was willing to pay a commission from the sale to Crossroads Ford and I did not think that there was anything wrong with his selling the car to the customers. 19. [Plaintiff] was going to let Allen Boyd know about the sale and work out a cut for Crossroads Ford with Allen. 20. On Friday, April 30, 2010, Allen Boyd called me and told me he wanted me to fire [plaintiff] for selling his car. 21. Although I disagreed with Allen’s decision, it was clear that Allen had already made up his mind[.] 24. I think Allen Boyd used the sale of [plaintiffs] car as a pretext to fire him. One of the principal reasons that Allen Boyd removed [plaintiff] from the position of General Manager and terminated him from his job was because of [plaintiff’s] age. On 20 July 2012, defendant filed a motion to strike the affidavit of Noah Woods. Although the trial court stated that it was not going to strike Woods’ affidavit during the 23 July 2012 hearing, in the 21 August 2012 summary judgment order, the trial court stated that [t]he Court finds that Woods’ affidavit is inherently incredible, presented at the 11th hour and therefore, does not create a material issue of fact to bootstrap [plaintiff] over the motion for summary judgment. Had Woods in fact approved of the sale as he now contends, the complaint would have contained these alleged facts. [Plaintiff] is simply using Woods as a “straw man” to put forth a last ditch yam that is inconsistent with the complaint and his sworn deposition testimony. It is crystal clear that , a party opposing a summary judgment motion cannot create an issue of fact by filing an affidavit that is in conflict with his prior sworn testimony. Woods’ affidavit is merely a surrogate for [plaintiff’s] inconsistent and newly created story that he had authority to sell the car from Woods. . . . Cousart v. The Charlotte-Mecklenburg Hospital Authority, 704 S.E.2d 540, 543-44 (2011); Carter v. West Am. Ins. Co., 190 N.C. App. 532, and Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). Reduced to essentials, Woods’ last minute affidavit is incredible, contradictory to [plaintiffs] complaint and his sworn deposition testimony and cannot be used to create an issue of fact to forestall summary judgment. (emphasis added). In determining whether the trial court properly disregarded Woods’ affidavit, “[w]e review an order striking an affidavit for abuse of discretion.” Waterway Drive Prop. Owners’ Ass’n v. Town of Cedar Point, _ N.C. App. _, _, 737 S.E.2d 126, 135-36 (2012) (citation omitted). First, we note that Woods’ affidavit was filed and served on defense counsel on 18 July 2012, five days prior to the 23 July 2012 hearing. This was in compliance with rule 6(d) of the North Carolina Rules of Civil Procedure which states that “opposing affidavits shall be served at least two days before the hearing.” N.C. Gen. Stat. § 1A-1, Rule 6(d) (2011). At the 23 July 2012 hearing, defense counsel stated that Woods’ affidavit “was timely filed and served on me. I don’t dispute that.” Therefore, the trial court erred by finding that because Woods’ affidavit was presented at the “11th hour,” it was inherently incredible. Further, all three of the cases cited by the trial court in its summary judgment order stand for the well-established proposition that “a party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.” Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299, 304, 704 S.E.2d 540, 543 (2011) (citation omitted) (emphasis added); See Carter v. West Am. Ins. Co., 190 N.C. App. 532, 539, 661 S.E.2d 264, 270 (2008) and Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). These cases specifically state that a party cannot survive a motion for summary judgment by merely filing an affidavit that contradicts their own personal, prior sworn testimony. In the case before us, however, the substance of Noah Woods’ affidavit did not contradict any previous sworn testimony of Noah Woods. Therefore, we hold that Cousart, Carter, and Barwick are not applicable to the facts in this case and that the trial court abused its discretion in finding Woods’ affidavit inherently incredible. Next, we address whether it was improper for the trial court to find that Woods’ affidavit was inherently incredible because it was “inconsistent with [plaintiff’s] complaint” and “contradictory to [plaintiff’s complaint.]” Viewing the evidence in the light most favorable to plaintiff, Woods’ affidavit indicated that as General Manager of Crossroads Ford, Woods was aware of and approved the sale of plaintiff’s wife’s vehicle. The affidavit also showed that Woods believed that Vice-President Boyd used the sale of plaintiff’s wife’s vehicle as a pretext to terminate plaintiff. Woods believed that “[o]ne of the principal reasons [Vice President Boyd] removed [plaintiff] from the position of General Manager and terminated him from the job was because of [plaintiff’s] age.” The content of Woods’ affidavit was not contradictory to plaintiff’s complaint as the trial court’s summary judgment order states. Rather, it supported plaintiff’s claim that he was wrongfully terminated by defendant based on his age in violation of the North Carolina Equal Employment Practices Act. We hold that the trial court abused its discretion by disregarding Woods’ affidavit based on the belief that it was inconsistent with plaintiff’s complaint. B. Summary Judgment Order Plaintiff argues that the trial court erroneously relied on the holding in McDonnell Douglas Corp. v. Greens 411 U.S. 792, 36 L.Ed.2d 668 (1973), and applied an incorrect burden of proof - placing the burden upon plaintiff to disprove defendant’s affirmative defense - in considering defendant’s motion for summary judgment. Furthermore, plaintiff argues that the trial court erroneously granted summary judgment in favor of defendant where plaintiffs evidence created a genuine issue of material fact as to whether plaintiffs age was the reason for his termination. We address each of these arguments in turn. Plaintiffs complaint alleged that defendant terminated him because of his age, in violation of North Carolina public policy as set forth in the Equal Employment Practices Act (“EEPA”), N.C. Gen. Stat. § 143-422.1, et seq. The EEPA provides that [i]t is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees. N.C.G.S. § 143-422.2 (2011). “Our Supreme Court has directed that we look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.” Youse v. Duke Energy Corp., 171 N.C. App. 187, 193, 614 S.E.2d 396, 401 (2005) (quotations omitted) (citing Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983)). la McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668 (1973), Green, a black citizen of St. Louis, who had previously worked for McDonnell Douglas Corporation, an aerospace and aircraft manufacturer, as a mechanic and laboratory technician from 1956 until 28 August 1964 was “laid off in the course of a general reduction in [McDonnell Douglas Corp.’s] work force.” Id. at 794, 36 L.Ed.2d at 673. Green was a long-time civil rights activist and during the time he was laid off, “protested vigorously that his discharge and the general hiring practices of [McDonnell Douglas Corp.] were racially motivated.” Id. Three weeks following these activities, McDonnell Douglas Corp. publicly advertised for qualified mechanics and Green promptly applied for re-employment. Id. at 796, 36 L.Ed.2d at 674. McDonnell Douglas Corp. denied Green employment basing its rejection on Green’s protest activities. Id. Thereafter, Green filed an action under Title VII of the Civil Rights Act of 1964, alleging that McDonnell Douglas Corp. had “refused to rehire him because of his race and persistent involvement in the civil rights movement[.]” Id. The Supreme Court of the United States in McDonnell Douglas established evidentiary standards to be applied “governing the disposition of an action challenging employment discrimination[.]” Id. at 798, 36 L.Ed.2d at 675. First, the claimant carries the initial burden of establishing a prima facie case of discrimination. Id. at 802, 36 L.Ed.2d at 677. “The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. at 802, 36 L.Ed.2d at 678. If a legitimate, nondiscriminatory reason has been articulated, the claimant has the opportunity to show that the employer’s stated reason for the claimant’s rejection was in fact pretext. Id. at 804, 36 L.Ed.2d 679. “[T]he North Carolina Supreme Court has explicitly adopted the Title VII evidentiary standards in evaluating a state claim under § 143-422.2 insofar as they do not conflict with North Carolina statutes and case law.” Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995) (citation omitted). N.C. Dep’t of Correction v. Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983), was an employment discrimination case based on race and our Supreme Court applied the McDonnell Douglas evidentiary standards in evaluating a claim brought under N.C. Gen. Stat. § 143-422.2. In N.C. Dep’t of Grime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 616 S.E.2d 594 (2005), our Court applied the McDonnell Douglas “scheme by which employees may prove [age] discrimination in employment.” Id. at 537, 616 S.E.2d at 600. Our Court noted that “[t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [employee] remains at ail times with the [employee].” Id. at 538, 616 S.E.2d at 600 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 L.Ed.2d 105 (2000)). Based on the foregoing, we hold that the trial court did not err by utilizing the McDonnell Douglas evidentiary standards. Next, plaintiff argues that the trial court erred by granting summary judgment in favor of defendant where plaintiff’s evidence created a genuine issue of material fact as to whether plaintiff’s age was the reason for his termination. We agree. In order to establish a prima facie case of disparate treatment pursuant to N.C.G.S. § 143-422.2, plaintiff must show by a preponderance of the evidence that: (1) [he] is a member of a protected class; (2) [he] was qualified for [his] job and [his] job performance was satisfactory; (3) [he] was fired; and (4) other employees who are not members of the protected class were retained under apparently similar circumstances. Hughes, 48 F.3d at 1383 (citation omitted). To support his claim, plaintiffs forecast of evidence established that he was bom on 9 April 1950, making him 60 years old at the time of his termination. Plaintiff began working for defendant in 2000 as a Salesman and quickly became one of th

ROBERT PAUL MORRIS, Plaintiff v. SCENERA RESEARCH, LLC, and RYAN C. FRY, Defendants No. COA12-1481 Filed 20 August 2013 1. Employer and Employee — Wage and Honr Act — Retaliatory Employment Discrimination Act — bonus earned — bonus calculable The business court did not err in a case concerning a dispute regarding compensation and ownership rights between plaintiff and his employer by denying defendants’ motions for directed verdict on plaintiff’s Wage and Hour Act (WHA) and Retaliatory Employment Discrimination Act (REDA) claims and for JNOV. Plaintiff presented more than a scintilla of evidence in support of his position that he earned the $675,000 in issuance bonuses under his employer’s bonus policy. Furthermore, the question of calculability under the WHA was properly presented to the jury for review, the formula offered by plaintiff was at least one reasonable way to calculate those bonuses, and the evidence relied on for that formula was supported in the record. 2. Employer and Employee — Wage and Hour Act — liquidated damages — notice of change in bonus plan — lack of good faith or objective reasonableness The business court did not err in a case concerning a dispute regarding compensation and ownership rights between plaintiff and his employer by awarding plaintiff $210,000 in liquidated damages under the Wage and Hour Act (WHA). Defendants failure to provide plaintiff with notice of the change in his bonus plan constituted sufficient evidence to support the business court’s finding that defendants did not act in good faith or with objective reasonableness and, therefore, justified the business court’s award of liquidated damages in this case. 3. Employer and Employee — Wage and Hour Act — liquidated damages — good faith and objective reasonableness The business court did not err in a Wage and Hour Act (WHA) case by failing to grant liquidated damages in response to the jury’s award of issuance bonuses for the 150 patents pending with the patent office. Defendant employer made a proper showing of good faith and objective reasonableness as to its failure to pay the issuance bonuses. 4. Damages and Remedies — treble—Retaliatory Employment Discrimination Act — no willful violation The business court did not err by declining to treble plaintiffs $390,000 jury award under the Retaliatory Employment Discrimination Act (REDA). There was competent evidence to support the business court’s determination that defendant did not willfully violate REDA. 5. Attorney Fees — Wage andHour Act — Retaliatory Employment Discrimination Act — apportionment—common nucleus of facts The business court’s award of attorneys’ fees in a Wage and Hour Act (WHA) and Retaliatory Employment Discrimination Act (REDA) case was reversed and remanded to the trial court for further findings of fact and conclusions of law regarding whether plaintiff’s claims arose from a common nucleus of operative fact and, thus, whether he was entitled to all of his attorneys’ fees. 6. Employer and Employee — Wage and Hour Act — election of remedies The trial court erred in its summary judgment order in a Wage and Horn- Act (WHA) case by foreclosing plaintiff’s right to elect between money damages or rescission of the patent assignments. The case was remanded to the trial court with instructions that plaintiff is entitled to elect between his WHA [damages] award or rescission of his patent assignments. 7. Appeal and Error — issue not reached Plaintiff’s final argument in a Wage and Hour Act (WHA) case was not reached because the Court of Appeals remanded the case on the question of election of remedies between rescission and damages. Appeal by Defendants from order entered 27 June 2012 and judgment entered 14 May 2012 by Judge James L. Gale in Wake County Superior Court. Appeal by Plaintiff from order entered 27 June 2012, judgment entered 14 May 2012, and memorandum opinion and order entered 4 January 2012 by Judge James L. Gale in Wake County Superior Court. Heard in the Court of Appeals 21 May 2013. Young Moore and Henderson P.A., by Walter E. Brock, Jr., and Andrew P. Flynt, for Plaintiff. Kilpatrick Townsend & Stockton LLP, by Adam H. Chames and John M. Moye; and Womble Carlyle Sandridge & Rice, by Burley B. Mitchell, Jr., for Defendants. STEPHENS, Judge. Procedural History and Factual Background This case concerns a dispute regarding compensation and ownership rights between Plaintiff Robert Paul Morris (“Morris”) and his employer, Scenera Research, LLC (“Scenera”), for inventions developed by Morris during his employment with Scenera. On 25 September 2009, Morris filed a complaint against Scenera and its chief executive officer, Ryan C. Fry (“R. Fry”) — collectively, “Defendants” — in Wake County Superior Court, alleging violations of the North Carolina Wage and Hour Act (“WHA”) and the Retaliatory Employment Discrimination Act (“REDA”) as well as claims for fraud, unjust enrichment, and breach of contract. R. Fry is the son of Stan Fry (“S. Fry”), who founded Scenera under the name “IPAC, LLC.” On 6 October 2009, Defendants filed notice of removal to the United States District Court for the Eastern District of North Carolina. Sixteen months later, on 16 February 2011, the District Court remanded the case for lack of subject matter jurisdiction to Wake County Superior Court, where it was designated a complex business case and assigned to the Honorable James L. Gale of the North Carolina Business Court (“the business court”). Defendants filed their second amended answer and counterclaims on 31 March 2011, denying Morris’s material allegations and, inter alia, seeking declaratory judgments that Morris: (1) was not entitled to rescind any patent ownership assignment he had already made to Scenera, (2) was obligated to assign ownership of unassigned inventions to Scenera, and (3) had resigned his employment and was not entitled to further bonus payments. Scenera also asserted claims that Morris breached his fiduciary duties and breached his obligation to continue assigning patents to Scenera. On 24 October 2011, Morris moved for partial summary judgment, and Scenera moved for summary judgment. Morris sought to dismiss certain of Scenera’s counterclaims and defenses, and Scenera sought to have the business court declare that Morris was “hired to invent” and, thus, that Scenera owned the rights to the inventions Morris had developed while working there. Scenera also sought to dismiss Morris’s claims of fraud, unjust enrichment, and retaliatory discrimination. The business court addressed those motions on 4 January 2012 and described the background facts as follows: Morris was aformer [International Business Machines Corporation] employee with substantial training in software. He later was employed by Flashpoint Technologies, a company founded by S. Fry. S. Fry had also formed a company... known as IPAC. IPAC later became known as Scenera. While employed by Flashpoint, Morris and IPAC entered a [c]onfidentiality [agreement which included mutual non-disclosure obligations and pursuant to which any confidential information remained the property of the disclosing party. . . . Morris was not at that time an IPAC employee[,] but contracted with IPAC. S. Fry hired Morris in 2004 as Scenera’s first employee. Morris had a series of discussions with S. Fry preceding this employment, the extent, nature, and significance of which are disputed [as to Morris’s ownership rights over the inventions he developed at Scenera]. Morris testified that he expressed an interest in inventing but was neither obligated to nor expected to invent as a part of the regular employment duties he would undertake for Scenera, and that his base salary was for the substantial duties other than inventing for which he was responsible. Morris and Scenera did not sign a written employment agreement. Morris contends that the [pjarties understood that the ownership provisions of the [c]onfidential[ity] [agreement that Morris signed while employed by Flashpoint continued. Scenera contends that there was no such agreement and that once Morris was hired to invent for Scenera, he had no ownership rights in inventions made during the course of that employment. ... It is undisputed that during certain times of Morris’s employment, in addition to his base salary, Morris was entitled to receive up to $10,000.00 for each of his inventions on which Scenera pursued patents, with $5,000.00 being earned when a patent application was submitted and $5,000.00 being earned when a patent issued____ Morris proved to be a prolific inventor. By July 2009 when Morris’s employment with Scenera ended, Morris contends that the unpaid amount that had accrued under his bonus compensation plan was $210,000.00. . . . While Morris concedes that he voluntarily suspended bonus payments beginning at the end of 2007 as Scenera undertook to formulate an alternative compensation program, he contends that the bonus program was not cancelled, and that he continued to make patent assignments during 2008 only because he knew he was entitled to compensation in addition to his base salary. Morris contends that R. Fry promised . . . the offered alternative compensation would be tied to Scenera’s profitability[,] more favorably reflect Morris’s contribution to that profitability, and better reflect Morris’s risk and his reward. Morris alternatively claims that even if the bonus program had been terminated at year-end 2007, R. Fry in July 2008 promised that the bonus system would be re[-]implemented for Morris if Scenera did not meet certain conditions ..., such as providing Morris with an individual written employment contract and an appropriate incentive compensation program, and that these conditions were then not met. Scenera contests Morris’s recollection of these conversations, and further claims that if R. Fry made promises, he kept them by proposing a[n] employment contract and an employee incentive program. Ultimately, no agreement on any alternative compensation plan was ever reached and no written employment agreement was executed. Morris claims that these proposals did not satisfy promises R. Fry made and that other documents prove that R. Fry never had any intention of keeping his promises. Scenera claims R. Fry had never made promises specific enough to be enforceable [,] but rather had only agreed to make a proposal for further negotiation, which he did, and that essentially Morris seeks to enforce “an agreement to agree.” Morris testified to his frustration with the lack of progress toward the promised incentive plan and written employment agreement and that he began in 2008 to press R. Fry for progress. He continued to press in 2009, ultimately hiring a lawyer who threatened on Morris’s behalf to bring a wage claim under [the WHA] . . . for the $210,000.00 bonus compensation that had accrued and which Scenera refused to pay after Morris’s demand. The parties disagree both on the facts leading up to the end of Morris’s employment in July [of] 2009 and whether that end should be treated as a resignation or a termination. Morris claims that he was terminated in retaliation for his threat to bring a wage claim, which is a protected activity, such that he is entitled to recover under [REDA], Scenera contends that Morris had made clear his intention to leave the company and his attorney had indicated that the only option was to negotiate a severance agreement, so that, as a result, Morris had [“]effectively resigned[”j and Scenera accepted [this] resignation. Scenera alternatively contends that even if it had terminated [Morris], the termination was not retaliatory because [Scenera] had an independent right to terminate him because he refused to make any further invention assignments to Scenera while being legally obligated to do so. Scenera further claims that Morris, during the course of his employment, breached fiduciary duties owed to Scenera.... In that context, the business court denied Morris’s motion for partial summary judgment in its entirety. It granted Scenera’s motion on the question of whether Morris was “hired to invent” and on Morris’s fraudulent inducement, and unjust enrichment claims. The business court otherwise denied Scenera’s motion. The remaining claims — Morris’s breach of contract, WHA, and REDA claims plus Scenera’s patent ownership and breach of assignment counterclaims — were tried before a jury beginning 30 January 2012. In its judgment entered after the trial, the business court described the evidence as follows: ... Morris was employed by Scenera and ... his employment ended on July 10, 2009. . . . [B]oth Scenera and Defendant [R. Fry] were Morris’s employers under the [WHA] and [REDA]. ... [0]n the date Morris’s employment ended[,] July 10, 2009, Scenera had 150 pending patent applications on inventions for which Morris was the inventor. . . . Morris, by the time of trial, had assigned executed written agreements on all but a few of these inventions. [A]ny . . . bonus which [was] owed qualifie[d] as “wages” under the [WHA], . . . The evidence for both parties indicated that Morris and Scenera reached [an] agreement on some changes to be implemented as of January 1, 2008, in consideration of Defendants potentially implementing a company-wide incentive compensation plan---- Morris contended that he [was] entitled to recover $210,000 for application and issuance bonuses which [accrued on 10 July 2009].... . •.. [Negotiations over disputed bonuses were undertaken in 2009 when Scenera requested that Morris execute a written employment agreement. [T]hroughout these negotiations, Morris consistently made clear his belief that he was entitled to bonuses that had continued to accrue after January 1, 2008. . . . [L]ate in the negotiations for an employment agreement^ however,] Morris also demanded that he [should] be paid future patent issuance bonuses irrespective of whether he remained employed. . . . [D]uring [those] negotiations [,] Scenera considered payment of [the] $210,000 without admitting that this sum was being paid as earned wages, but. . . refused to consider paying patent issuance bonuses on patents issued after Morris’s employment ended. Rather, Defendants’ evidence was that Scenera had a consistent policy [, which] applied to all employees, including Morris, that payment of issuance bonuses was conditioned on continued employment.... As related to the REDA claim, Morris presented evidence that he had during the term of his employment asserted claims that he was entitled to issuance bonuses irrespective of his continued employment. The evidence also established that he refused to assign further inventions or sign further patent applications until the wage dispute was resolved. [W]hen the parties could not agree on ... terms ... for a written employment agreement, Morris advised Scenera that an employment agreement appeared out of reach and that he would only consider a severance agreement whereby [he] would continue to support the patent portfolio as an independent contractor. Morris [also] suggested that he was entitled to challenge Scenera’s ownership of patents or applications based on [his] inventions. Ultimately, Morris’s employment ended and no independent contractor agreement was ever [established],... Morris introduced evidence that Scenera has enjoyed a [90%] average rate of patents issued from patent applications, and that the success rate on applications for Morris’s inventions was somewhat higher.... Morris’s [WHA] claim was for the wages he contended were due, along with statutory penalties. His REDA claim was to recover damages from his retaliatory termination. Defendants denied any liability under [both]. ... Scenera... counterclaimed for damages because of Morris’s failure to support Scenera’s patent rights. Defendants . . . submitted expert evidence to prove their damages. Defendants further contended that Morris refused to seek alternative employment after July 10,2009, such that any recovery for retaliatory discharge must be reduced for failure to mitigate damages. At the close of all the evidence, the business court granted Defendants’ motion for directed verdict on the issue of patent ownership and . denied Defendants’ motion for directed verdict as to Morris’s WHA and REDA claims. The jury reached a unanimous verdict on 15 February 2012, awarding Morris: (1) $210,000 in patent bonuses for patent applications filed or patents issued between 1 Januaiy 2008 and 17 June 2009; (2) $675,000 in patent bonuses for patent applications pending as of 17 June 2009; and (3) $390,000 under REDA after a reduction for Morris’s failure to mitigate damages. Following that verdict, Morris requested judgment for the amount awarded plus supplemental relief, including liquidated damages and attorneys’ fees under the WHA as well as treble damages and attorneys’ fees under REDA. On 14 May 2012, the business court issued its judgment on the jury award and Morris’s motion for supplemental relief, declining to treble Morris’s $390,000 in damages under REDA, but granting $450,000 for all attorneys’ fees and $210,000 in liquidated damages under the WHA because “Defendants [did not] demonstrate[] good faith or reasonable grounds for a belief that their failure to pay application and issuance bonuses accruing during the period of January 1, 2008 through July 10, 2009 was not a violation of the [WHA].” The court also declared that: (1) “Scenera is the owner of each of the inventions, patent applications, and patents identified in . . . Morris’s [c]omplaint [because o]wnership of those inventions vested in Scenera at the time of invention”; (2) Morris shall assign any unassigned patent applications to Scenera; and (3) Scenera will not recover any damages for its patent ownership and breach of assignment counterclaims. On 30 May 2012, Defendants moved for judgment notwithstanding the verdict (“JNOV”) or, in the alternative, for a new trial. The business court denied that motion on 27 June 2012. Both parties appealed. Discussion . I. Defendants’Appeal Defendants make three arguments on appeal. First, they contend that the business court erred in denying their motions for directed verdict on Plaintiffs WHA and REDA claims and for JNOV. Second, Defendants contend the business court erred by awarding $210,000 in liquidated damages under the WHA. Third, Defendants assert that, if the business court’s judgment is reversed, its grant of attorneys’ fees should be vacated. We find no error. A. Directed Verdict and JNOV “The standard of review of directed verdict [or JNOV] is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citations omitted); Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000). “[A n]on-movant’s evidence which raises a mere possibility or conjecture cannot defeat a motion for directed verdict. If, however, the non-movant shows more than a scintilla of evidence, the court must deny the motion.” McFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350, disc. review denied, 327 N.C. 140, 394 S.E.2d 177 (1990) (citation omitted); see also Norman Owen Trucking, Inc. v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998) (“The [JNOV] motion should be denied if there is more than a scintilla of evidence supporting each element of the non-movant’s claim.”). i. Evidence that Morris Earned the Issuance Bonuses Under the WHA In support of their argument that the business court should have granted their motions for directed verdict and JNOV, Defendants assert that Morris presented “no evidence” that he “earned [the $675,000 in issuance] bqnuses under Scenera’s bonus policy____” We disagree. “[T]he [WHA] requires an employer to ... pay those w