The former president of the Wings to Go chicken franchise in Burlington, James B. Upchurch, Jr. of Burlington, 55, white male, has been formally indicted for felony embezzlement and corporate malfeasance for allegedly misusing company funds to pay his personal expenses.
The case was presented to an Alamance County grand jury, which returned a true bill of indictment last month, according to his criminal court file.
Upchurch originally had been arrested in late April 2021 on three felony charges: one count of embezzlement; embezzlement of more than $100,000; and corporate malfeasance. He was subsequently released from the Alamance County jail on a $100,000 unsecured bond, according to the court file.
A grand jury subsequently indicted Upchurch last month on two counts each of embezzlement and two counts of corporate malfeasance.
State law classifies the charge of embezzlement of more than $100,000 as a Class C felony. If convicted, a first-time offender could face a minimum active sentence of 73 to 92 months for a Class C felony, under North Carolina’s current sentencing laws.
State law classifies embezzlement of less than $100,000 and corporate malfeasance as Class H felonies. If convicted, a first-time offender faces a range of possible sentences: Six to eight months of community service; intermediate punishment (supervised probation that may include a period of active confinement, drug court, house arrest, or jail time at a local facility); or an active prison sentence.
The bill of indictment alleges that Upchurch fraudulently misused corporate funds by using two company credit cards – issued to Wings to Go Burlington (WTG Burlington) by Pinnacle Bank and American Express – to charge more than $100,000 in personal expenses to each card.
Upchurch and his six former business partners, who also owned shares in the company, filed dueling lawsuits in Alamance County civil superior court in May 2020, with each side accusing the other of wrongdoing.
Upchurch accused his former partners in WTG Burlington of orchestrating an “illicit coup” in late 2019 to remove him as the company’s president, sole officer, and general manager. The coup allegedly culminated with the election of new officers and directors in January 2020, according to the civil court file. Upchurch had sought an unspecified award for compensatory and punitive damages under three alleged claims, including breach of contract by two partners who had refused to sell their shares in the company to him.
Upchurch’s shares sold, bank account levied to satisfy judgment
His former business partners alleged in their civil suit that, during his three years as president of WTG Burlington, that Upchurch had misused $290,000 in company funds for personal expenses that included hotels and restaurants, entertainment, air travel, and other purchases, in addition to fraudulently transferring company funds to his personal bank accounts. Upchurch allegedly made those credit card charges and bank transfers, which he recorded as “loans to shareholder,” without telling his business partners, according to WTG Burlington’s lawsuit.
Last spring, the former partners in WTG Burlington obtained a judgment against Upchurch for $169,084.68, plus interest that continues to accrue at a daily rate of $34.09, based on an order entered by Alamance County senior resident superior court judge Tom Lambeth, Jr. His shares in the franchise were later sold and his bank account was levied, but the proceeds failed to satisfy the debt, based on the civil court file.
Upchurch’s 4,100 shares of stock in WTG Burlington were subsequently offered for sale at an auction at the Alamance County Historic Court House late last summer, according to the civil court file.
Paul Koonts of the Oertel Koonts & Oertel law firm in Burlington – the firm representing WTG Burlington for its suit against Upchurch – was the last and highest bidder and purchased all of Upchurch’s 4,100 shares in the company for $500 on August 25, according to a bill of sale that is included in the court file.
The following month, in September 2021, an account with American National Bank was also levied and yielded $3,068.90, which wasn’t enough to settle the debt, according to a note in the file.
Upchurch subsequently submitted a partial payment for $3,454.68 to the clerk of superior court’s office in mid-October 2021, according to court documents.
Documents filed in civil superior court list Upchurch’s current address as 325 East Davis Street, Apartment 10A, in Burlington.
The criminal court file gives no indication that Upchurch has any prior criminal convictions; and his case had not been set for trial by press time.
Read earlier coverage of the controversy between Upchurch and other owners of Wings to Go: https://alamancenews.com/embattled-former-president-of-wings-to-go-restaurant-facing-two-new-lawsuits/