An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-169
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 7 October 2014


GREER L. GEIGER, M.D.,
     Plaintiff,

      v.                                       Guilford County
                                               No. 12 CVS 5477
CENTRAL CAROLINA SURGICAL EYE
ASSOCIATES, P.A., J. MARK
McDANIEL, JR. and C. RICHARD EPES,
     Defendants.


      Appeal by defendants from order entered 11 February 2013 by

Judge A. Moses Massey in Guilford County Superior Court.                      Heard

in the Court of Appeals 13 August 2014.


      Tuggle Duggins P.A., by Denis E. Jacobson, Brandy L. Mills,
      and Richard W. Andrews, for plaintiff-appellee.

      Rossabi Black Slaughter, P.A., by Gavin J. Reardon and
      Amiel   J.   Rossabi,  for   defendants-appellants   Central
      Carolina Surgical Eye Associates, P.A. and C. Richard Epes.

      Culbertson & Associates, by K.E. Krispen Culbertson, for
      defendant-appellant James Mark McDaniel, Jr.


      HUNTER, Robert C., Judge.


      Defendants      appeal     from    the   order     granting     plaintiff’s

motion for a directed verdict on defendants’ affirmative defense

which   alleged     that   the   terms    of   plaintiff’s      employment     were
                                          -2-
modified by oral agreement.               On appeal, defendants argue that

the trial court erred in granting plaintiff’s motion because

there was sufficient evidence to support a finding that the

parties    had    agreed    to    an   oral     modification     of    the     written

employment       agreement.        Plaintiff      contends      that       defendants’

notice of appeal was deficient and requests this Court dismiss

the appeal.       However, in the alternative, plaintiff argues that

defendants       could   not     orally   modify      the   employment       contract

pursuant to the North Carolina Wage and Hour Act and that, even

if defendants did provide written notice of the modification in

August, she did not assent to the terms of the modification nor

was it supported by consideration.

      After careful review, we conclude that defendants’ notice

of appeal was sufficient to confer jurisdiction to this Court.

Moreover, we find that the trial court did not err in granting

the   directed      verdict       because:      (1)    plaintiff’s          employment

agreement could not be orally modified under North Carolina’s

Wage and Hour Act (“NCWHA”); and (2) even assuming that the

modified employment agreement which was provided to plaintiff in

August    constitutes      sufficient      written     notice   of     a    change   in

plaintiff’s wages under NCWHA, defendants failed to produce any

evidence that plaintiff had assented to the modified contract, a
                                    -3-
required showing for the affirmative defense of modification.

Therefore, the trial court did not err in granting a directed

verdict for plaintiff on defendants’ sixth affirmative defense

of contract modification.

                               Background

       From 2005 to 2011, plaintiff Greer L. Geiger, M.D., worked

at     Kaiser     Permanente   (“Kaiser”)         in   California         as   an

ophthalmologist, specializing in retina surgery and care.                      In

2010,    Kaiser   started   reviewing     cases    plaintiff      had    handled

relating to patients who had returned to the operating room

within six months after surgery.           As a result of this review,

Kaiser presented plaintiff with ten to twelve cases in which

plaintiff had made mistakes, half of which had nothing to do

with    surgery   and   involved   administrative       issues.         Plaintiff

contended that the reasons for these return visits were minor in

nature and had nothing to do with patient care.              However, after

Kaiser initiated the review, plaintiff felt that Kaiser would no

longer be a comfortable work environment and began looking for

another job.

       In December 2010, plaintiff was contacted by a recruiter

about a potential job opportunity as a retina specialist with

defendant   Central     Carolina   Surgical   Eye      Associates       (“Central
                                             -4-
Carolina”)       in   Greensboro,       North       Carolina.         After    expressing

interest in the job, plaintiff’s curriculum vitae was forwarded

to Central Carolina.

      In    January     2011,   plaintiff          interviewed       for   the    position

with Central Carolina.               On 4 January 2011, plaintiff met with

shareholders,         officers,       and     employees       of     Central     Carolina,

including defendant J. Mark McDaniel Jr. (“McDaniel”), the CEO

of Central Carolina, and defendant Dr. C. Richard Epes (“Epes”),

president, majority owner of, and a surgeon at Central Carolina

(collectively, Central Carolina, McDaniel, and Epes are referred

to   as    “defendants”).         On    11     January       2011,    Central     Carolina

offered the job to plaintiff which would entitle plaintiff to a

base salary of $350,000 her first year.

      After       receiving     the     job     offer        from    Central     Carolina,

plaintiff        resigned     from     Kaiser.          In     conjunction       with   her

resignation,          plaintiff entered into a confidential settlement

agreement with Kaiser dated 1 February 2011.                           As part of the

settlement agreement, Kaiser paid plaintiff $227,000 and forgave

a $120,000 home loan in exchange for a full release of any

claims     she    had   or    might     have       against     Kaiser.         Thereafter,

plaintiff voluntarily surrendered her privileges to practice at

Kaiser’s facilities.
                                       -5-
    Because the settlement occurred prior to the conclusion of

Kaiser’s    investigation,      Kaiser     felt      it   necessary     to    file   a

report    with   the   National      Practitioner         Data   Bank   (the   “Data

Bank”).    The report was processed on 17 March 2011 and did not

indicate any wrongdoing on the part of plaintiff.                       The report

stated    that   plaintiff     resigned      while    under      investigation       to

avoid the expense of further engaging in the process and that

plaintiff disputed that her practice presented any cause for

medical discipline.

    On 17 February 2011, Central Carolina and plaintiff entered

into a written, three-year employment agreement (the “Employment

Agreement”).      Under the Employment Agreement, plaintiff was to

begin work no later than 2 May 2011.              Plaintiff was guaranteed a

first-year salary of $350,000, payable twice monthly in payments

of $14,583.34.     In addition to her base salary, plaintiff was to

receive 34% of her net collections in excess of $1,029,411.77.

Furthermore,     the   terms    of   the     Employment      Agreement       provided

that: (1) plaintiff was required to work full time for Central

Carolina; and (2) Central Carolina had exclusive authority to

“direct and control the assignment of patients and scheduled

operation” for plaintiff.         At plaintiff’s request, a handwritten

modification was included allowing for an earlier start date
                                               -6-
pending completion of licensure and insurance enrollment.                             Both

parties understood that this also meant that the start date

could       be    delayed        if       plaintiff’s      licensure      or    insurance

enrollment were not completed before 2 May 2011.

       In     April      2011,      plaintiff       relocated    from    California     to

Greensboro.             Plaintiff         applied    for   and   obtained      her    North

Carolina         medical      license,       completed     applications        to    become

credentialed, and worked to receive privileges to practice at

the     hospital.             As      a     result,     plaintiff       was    ultimately

credentialed           with   all     insurance      companies   from    which      Central

Carolina sought approval and granted privileges to practice at

Moses H. Cone Memorial Hospital.

       One insurer to whom plaintiff submitted an application was

Blue Cross Blue Shield of North Carolina (“BCBS”). On 18 April

2011, plaintiff signed the attestation statement for the BCBS

application indicating that, to her knowledge, she had never

been reported to the Data Bank.                      Plaintiff had checked the Data

Bank as recently as February or early March and no report was

shown.      Kaiser did not submit the report to the Data Bank                         until

17 March 2011.

       On 26 May 2011, Central Carolina was informed by BCBS that

it    could      not    approve       plaintiff’s      application      for    enrollment
                                             -7-
because       it    contained     false   or       incorrect       information.          BCBS

requested      information        about   the       report      submitted     by     Kaiser.

Plaintiff provided BCBS with the requested information, and, on

29 July 2011, BCBS granted plaintiff’s application to be a BCBS

provider.

    On or around 28 May 2011, defendants discussed the BCBS

matter    with          plaintiff.     According         to   McDaniel’s       testimony,

plaintiff          was    verbally    advised       that,     as    a     result    of    the

discovery          of     the   adverse   report,         the      written     Employment

Agreement was “void” and that she would not be paid under the

terms of the Employment Agreement.                   Instead, moving forward, she

would    be    compensated        based   on    production         only    with     no   base

salary    compensation.              According      to   McDaniel,         plaintiff      was

“teary-eyed, emotional, [and] seemed contrite,” and did not say

much of anything but later “slammed her hand on the table and

walked out.”             Although the parties did not execute a new written

agreement          memorializing       the      changed         agreement          regarding

plaintiff’s pay, defendants allege that the parties thereafter

acted in accordance with the changed agreement. Most notably,

defendants argue that plaintiff was never paid the base salary

and was, instead, only paid on commission.                          However, plaintiff
                                          -8-
disputes that any modification to her Employment Agreement was

ever discussed at the 28 May 2011 meeting.

       In   July   2011,       plaintiff    began      seeing     Central     Carolina

patients.      However, Central Carolina did not pay plaintiff for

any    of   the    work    she        performed    until    30    September      2011.

Plaintiff repeatedly inquired about Central Carolina’s failure

to pay her promised wages under the Employment Agreement and

demanded that she be paid. On 17 August 2011, plaintiff emailed

defendants, asking to be paid that Friday and noting that she

expected her paycheck to “reflect the agreed upon base salary.”

       In   August     2011,     defendants       presented      plaintiff     with    a

written copy of a modified contract reflecting the changes to

her compensation which were allegedly discussed at the 28 May

2011   meeting     (the    “modified       August      contract”).     The    modified

August      contract      changed,       among     other    things,         plaintiff’s

guaranteed salary of $350,000 to a percentage of her production.

The modified August contract also removed the requirement that

plaintiff work full time for Central Carolina and gave plaintiff

control of her own scheduling.              The copy of the modified August

contract     included     in    the    record     on   appeal    is   not    dated    nor

signed.
                                              -9-
      On 18 September 2011, plaintiff sent a letter to McDaniel

in which she again inquired about her unpaid wages and stated

that she was considering reporting the situation to the North

Carolina        Wage    and    Hour       Bureau.        Plaintiff      also   noted    that

defendants had promised but failed to pay her on multiple dates

“as far back as Friday the last week of July.”

      Plaintiff         did    not     receive      her    first   paycheck     until    30

September       2011.         The    paycheck      was    for   less    than   the    amount

promised under the terms of the Employment Agreement.                                 Within

two   weeks,       plaintiff’s            counsel        sent   defendants      a     letter

demanding        plaintiff’s          back    wages       she   was      due   under    the

Employment Agreement.

      In        January        2012,       with      defendants’         knowledge       and

acquiescence,           plaintiff         began     working     part-time      for     other

practices in order to meet her expenses and other financial

obligations.           Defendants never complained to plaintiff about her

outside employment.             On 6 June 2012, after defendants repeatedly

failed     to    pay     plaintiff         under    the    terms   of    the   Employment

Agreement,        plaintiff          ceased        performing      all     services      for

defendants.

      On 13 April 2012, plaintiff commenced an action against

defendants       alleging:          (1)    breach    of    contract      against     Central
                                        -10-
Carolina, and (2) a violation of the North Carolina Wage and

Hour Act against all defendants.                On 19 June 2012, defendants

filed an answer and counterclaim, alleging breach of contract.

Approximately six months later, on 12 December 2012, defendants

filed   additional      affirmative     defenses,     including     the    defense

that the Employment Agreement had been modified.                       Following a

hearing   on    4   February    2013,    defendants’       breach   of    contract

counterclaim was dismissed by Judge David L. Hall at summary

judgment.      The matter came on for trial during the 11 February

2013 Civil Session of Guilford County Superior Court.

    At    the   close     of   evidence,       plaintiff   moved    for   and   was

granted   a    directed    verdict    on   defendants’      sixth      affirmative

defense, which alleged that the terms of plaintiff’s employment

were modified by an oral agreement of the parties.                        The jury

later   found   for   plaintiff,      finding     that:    (1)   the    Employment

Agreement between plaintiff and Central Carolina was not induced

by fraud, (2) plaintiff was entitled to recover $288,734.85 from

defendants for breach of contract and unpaid back wages, and (3)

McDaniel and Epes were employers under the North Carolina Wage

and Hour Act.       On 16 April 2013, Judge Massey entered findings

of fact, an order, and a judgment reflecting the jury’s verdict.

In his findings and order, Judge Massey found that defendants’
                                           -11-
failure     to    pay    plaintiff     was    not     in    good     faith     and   that

defendants were liable to plaintiff, jointly and severally, for

the   sum    of     $767,186.10       (representing         prejudgment         interest,

attorney’s       fees,    costs,    and    twice    the     amount    of      plaintiff’s

unpaid wages).          On 22 April 2013, defendants filed a Motion for

Judgment     Notwithstanding         the    Verdict    or    in    the     Alternative,

Motion for New Trial.           On 24 July 2013, the trial court denied

defendants’ post-trial motions.

      On 7 August 2013, defendants timely appealed.

                                   Notice of Appeal

      Initially, we must determine whether defendants’ notice of

appeal was proper.            Pursuant to Rule 3 of the North Carolina

Rules of Appellate Procedure, plaintiff argues that defendants’

notice of appeal was deficient by failing to designate the trial

court’s order granting a directed verdict in favor of plaintiff

on defendant’s affirmative defense of modification or the order

from which the appeal was being taken.                      Accordingly, plaintiff

contends that the Court should dismiss the appeal for lack of

jurisdiction.

      Rule       3(d)    of   the    North    Carolina       Rules       of    Appellate

Procedure provides that an appellant’s notice of appeal “shall

designate the judgment or order from which appeal is taken[.]”
                                    -12-
“An appellant’s failure to designate a particular judgment or

order in the notice of appeal generally divests this Court of

jurisdiction to consider that order.”            Yorke v. Novant Health,

Inc., 192 N.C. App. 340, 347, 666 S.E.2d 127, 133 (2008); see

also Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C.

App.   14,   17,   411   S.E.2d   645,   647   (1992).   However,   if   the

appellant made “a mistake in designating the judgment”, Smith v.

Indep. Life Ins. Co., 43 N.C. App. 269, 274, 258 S.E.2d 864, 867

(1979), or if an appellant’s intent to appeal from the proper

judgment can be inferred from the notice and the appellee was

not misled by the mistake, the Court may liberally construe a

notice of appeal to obtain jurisdiction ,           Von Ramm v. Von Ramm,

99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990).

       Here, although the order granting a directed verdict for

plaintiff on defendants’ affirmative defense of modification is

not specifically mentioned in the notice, defendants’ notice of

appeal states that they are appealing, among other things:

             (4) the Ruling of the Honorable A. Moses
             Massey rendered during the trial of the
             captioned    matter,    to   exclude    jury
             instructions and questions or issues for the
             jury regarding the modification of the
             Employment Contract between Plaintiff and
             CCSEA, and regarding waiver by the Plaintiff
             of any alleged breach of the Employment
             Contract by Defendants.
                                      -13-
Although their notice of appeal does not specifically designate

the order from which they are appealing, construing paragraph 4

of the notice liberally, it manifests an intent to appeal the

order granting plaintiff’s motion for a directed verdict since

that order had the effect of “exclude[ing] . . . questions or

issues for the jury regarding the modification of the Employment

Contract.”      Therefore,         pursuant   to      Ramm,      the   notice   was

sufficient to confer jurisdiction upon the Court, and we address

the merits of the defendants’ appeal below.

                              Standard of Review

       “The standard of review of directed verdict 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).         “In   determining     the    sufficiency      of   the

evidence to withstand a motion for a directed verdict, all of

the evidence which supports the non-movant’s claim must be taken

as true and considered in the light most favorable to the non-

movant, giving the non-movant the benefit of every reasonable

inference    which     may     legitimately      be      drawn     therefrom    and

resolving contradictions, conflicts, and inconsistencies in the

non-movant’s favor.”         Turner v. Duke Univ., 325 N.C. 152, 158,
                                        -14-
381 S.E.2d 706, 710 (1989).                  In the case of        an affirmative

defense,      directed   verdict        is     properly     granted       where   the

defendant fails to present more than a scintilla of evidence in

support of each element of his defense.                 See Booker v. Everhart,

33, N.C. App. 1, 15, 234 S.E.2d 46, 56, (1977), rev’d on other

grounds, 294 N.C. 146, 240, S.E.2d 360 (1978).

                                   Arguments

    Defendants sole argument on appeal is that the trial court

erred in granting plaintiff’s motion for a directed verdict on

their   defense     of   modification         because     there    was    sufficient

evidence showing that the parties had orally agreed to modify

the compensation terms of the Employment Agreement to submit the

issue to the jury.1       Specifically, defendants contend that they

offered evidence for both elements necessary for the defense of

contract modification: (1) plaintiff’s assent to the modified

terms   can    be   established    by    her    conduct;     and    (2)    plaintiff

received new consideration for the modification.                      In contrast,

plaintiff argues that, pursuant to the NCWHA, defendants could




1
  Although McDaniel also argues on appeal that the trial court
erred in refusing to instruct the jury on the issue of
modification, he concedes that this issue is moot should the
Court conclude that the directed verdict for plaintiff was
properly granted.
                                    -15-
not   orally    modify   the   compensation   terms   of   her   Employment

Agreement.

      We agree with plaintiff and conclude that defendants could

not, as a matter of law, orally modify the wage provisions of

the Employment Agreement under NCWHA.          Furthermore, even if we

assume   that   the   modified   August    contract   constituted    proper

notice under the NCWHA, defendants’ affirmative defense still

fails because there was no evidence that plaintiff assented to

the terms of the modification, a required             showing to defeat

plaintiff’s motion for a directed verdict.

I.    NCWHA and Oral Modifications to Employment Contracts

      NCWHA, section 95–25.13(3) (2013), provides that employers

must “[n]otify its employees, in writing or through a posted

notice maintained in a place accessible to its employees, at

least 24 hours prior to any changes in promised wages.                Wages

may be retroactively increased without the prior notice required

by this subsection.”      This Court has interpreted the Act to mean

that “[a]n employer may provide for loss or forfeiture of wages

and benefits, or change the wages and benefits offered at any

time, but prior to such change, the employer must notify the

employee of the change in writing or through a posted notice,

and the change can only have prospective application, except in
                                             -16-
the   case    of    increases         in    wages       and   benefits.”       Narron     v.

Hardee's Food Sys., Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205,

207-08 (1985), overruled on other grounds by J & B Slurry Seal

Co. v. Mid–South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812

(1987).

      Here,    it    is    undisputed           that,    on   17   February     2011,    the

parties      entered      into    a     written         Employment     Agreement      which

guaranteed plaintiff a first-year salary of $350,000, payable

twice monthly.            The discussion defendants had with plaintiff

where they claim they orally modified the wage provisions of the

Employment Agreement occurred on or about 28 May 2011.                           However,

defendants never presented plaintiff with any written document

showing      the    modification           until    late      August   2011    when     they

provided her the modified August contract, which substantially

reduced plaintiff’s compensation to 34% of her net collections

without including any provisions for a base salary.                            Thus, as a

matter of law, defendants’ claim that they orally modified the

employment agreement in May fails because, under section 95–

25.13(3), an employee’s wages may not be modified orally.

      Despite the fact that the parties could not orally modify

the Employment Agreement, it is undisputed that defendants did

provide   plaintiff        a     copy      of    her    purported      new    contract    in
                                       -17-
August.       Assuming,      without    deciding,    that   this     constituted

sufficient notice under NCWHA, defendants must show that they

provided more than a scintilla of evidence for each required

element of contract modification to survive plaintiff’s motion

for a directed verdict.

II.   Contract Modification

      Under North Carolina law, to be effective, a modification

must “contain all the essential elements of a contract.”                  Yamaha

Int’l Corp. v. Parks, 72 N.C. App. 625, 628, 325 S.E.2d 55, 58

(1985).       “The     critical    elements   are    mutual   assent    to   the

modification, and consideration or a substitute supporting it.”

Altman v. Munns, 82 N.C. App. 102, 105, 345 S.E.2d 419, 422

(1986).      A contract “may be modified or waived by a subsequent

parol agreement, or by conduct which naturally and justly leads

the other party to believe the provisions of the contract are

modified or waived . . . .              This principle has been sustained

even where the instrument provides for any modification of the

contract to be in writing.”            Childress v. Trading Post, 247 N.C.

150, 154, 100 S.E.2d 391, 394 (1957) (citations omitted).

      With    regard    to   the   first   element    of    mutual    assent,   a

modification must reflect “an agreement between the parties that

the terms of the contract should be altered.”               G. Adrian Stanley
                                        -18-
& Assocs. v. Risk & Ins. Brokerage Corp., 123 N.C. App. 532,

535, 473 S.E.2d 345, 348 (1996); see also Electro Lift, Inc. v.

Miller Equip. Co., 4 N.C. App 203, 207, 166 S.E.2d 454, 457

(1969) (“Mutual consent is as much a requisite in effecting a

contractual modification as it is in the initial creation of the

contract.”).       Mutual    assent      may   be    shown    by    an    affirmative

statement   agreeing        to   modification          or    by     “conduct     which

naturally   and    justly    leads      the    other    party      to    believe      the

provisions of the contract have been modified or waived.”                            Son-

Shine Grading, Inc. v. ADC Constr. Co., 68 N.C. App.417, 422,

315 S.E.2d 346, 349 (1984).

      Defendants    present      no   evidence       that    plaintiff        made    any

“affirmative     statement,”      id.,    agreeing      to    the       new   terms   of

compensation. Instead, they argue that plaintiff agreed to the

modification through her conduct.                   However, we conclude that

plaintiff’s conduct “naturally” and “justly”, id., supports an

opposite conclusion.        With regard to plaintiff’s reaction at the

May meeting where plaintiff was allegedly informed about her new

compensation, she responded by slapping her hand on the table

and   becoming    emotional.     This    is    certainly      not       indicative     of

acquiescence or evidence that plaintiff agreed to be paid on a

production-only     basis.        Furthermore,         there       is    overwhelming
                                          -19-
evidence in the record that plaintiff consistently objected to

being paid much less than what was provided in the Employment

Agreement.           Specifically, plaintiff began requesting the base

salary    she    was     owed    as    early     as    July    2011      and    thereafter

continued       to    inquire    about     defendants’        failure       to    pay    her

“[r]egular bimonthly pay” and “base salary after taxes” which

she was entitled to under the terms of the Employment Agreement.

Both     plaintiff       and     plaintiff’s          counsel       sent       letters    to

defendants       disputing      plaintiff’s       wages       and    expressing         their

inclination to report the situation to the North Carolina Wage

and Hour Bureau.         Plaintiff continued to dispute her wages until

she resigned in June 2012. Most notably, plaintiff refused to

sign the modified August contract reflecting defendants’ alleged

oral modifications.

       With     regard    to    defendants’       contention         that      plaintiff’s

part-time work in January 2012 constituted evidence of assent

since plaintiff was prohibited under the Employment Agreement

from working for other employers but allowed to do so under the

modified      August     contract,       their    argument          is   without    merit.

Plaintiff       only     began        working    part-time          after       months     of

requesting her base salary and only out of desperation.                                 After

eight months of receiving wages less than promised under the
                                        -20-
written Employment Agreement and numerous letters to defendants

disputing her wages, plaintiff began working part-time to meet

her    expenses     and     other    financial    obligations.       Therefore,

plaintiff’s part-time work is not evidence of                  assent   to the

modified terms of the Employment Agreement.

      Thus, in sum, defendants failed to produce any evidence

showing that plaintiff mutually assented or in any way agreed to

the modified terms of the Employment Agreement.                  In contrast,

the evidence clearly shows conduct by plaintiff indicating that

she was acting as though the Employment Agreement was still in

place.   Because     there     was    no   evidence    of   mutual   assent,    a

required element for contract modification, it is not necessary

to    discuss     whether    the     modification     was   supported   by     new

consideration.

                                     Conclusion

      Based on the foregoing reasons, we conclude that the trial

court did not err in granting a directed verdict for plaintiff

on defendants’ affirmative defense of contract modification.



      NO ERROR.

      Judge DILLON concurs in result.

      Judge DAVIS concurs.
                         -21-
Report per Rule 30(e).
