Archive for February, 2023

N.C. Business Court Opinions, February 1, 2023 – February 14, 2023

Downing v. Cycle Holdings, Inc., 2023 NCBC 10 (N.C. Super. Ct. Feb. 1, 2023) (Davis, J.)

Key Terms: N.C.G.S. § 55-16-02(h); inspection rights; voting agreement; Delaware law

Plaintiff, a shareholder of Defendant Cycle Holdings, filed this action seeking an order allowing him to inspect the corporate records of Defendant Cycle Labs, in which Cycle Holdings held shares. At issue on the parties’ cross-motions for partial summary judgment was whether Cycle Holdings had the power to determine a majority of Cycle Labs’ directors for purposes of N.C.G.S. § 55-16-02(h). Under that provision, a qualified shareholder of a corporation that has the power to determine a majority of directors of another corporation has inspection rights as to the other corporation. The parties disputed whether Cycle Holdings had this power due to a voting agreement between Cycle Labs and its shareholders, which purported to require that Cycle Holdings vote its shares in such a way that it did not, in fact, have the power to determine a majority of Cycle Labs’ directors. Plaintiff asserted that the voting agreement was invalid because any change to Cycle Holdings’ voting rights could only be effectuated through an amendment to Cycle Labs’ certificate of incorporation. Defendants contended that the voting agreement did not conflict with the certificate of incorporation and only contained permissible restrictions on how Cycle Holdings would exercise its voting rights.

Applying Delaware law (since Cycle Labs was a Delaware corporation), the Court determined that the voting agreement did not impermissibly take away Cycle Holdings’ voting power, but instead simply constrained the manner in which it could exercise that power. Thus, under Delaware law, the voting agreement was valid and therefore Cycle Holdings did not have the power to determine a majority of Cycle Labs’ directors for purposes of N.C.G.S. § 55-16-02.


Maxwell Foods, LLC v. Smithfield Foods, Inc., 2023 NCBC 11 (N.C. Super. Ct. Feb. 3, 2023) (Conrad, J.)

Key Terms: output contract; most-favored-nation clause; breach of price term; notice pleading; fraudulent concealment; duty to disclose; estoppel; statute of limitations

Since 1994, Plaintiff Maxwell supplied swine to Defendant Smithfield under an output contract and related documents which included a most-favored-nation clause. Maxwell filed suit alleging various breaches of the parties’ agreements, including violating the most-favored-nation clause. After discovery, Maxwell amended its complaint, adding claims for breach of price term and fraudulent concealment of breaches of the most-favored-nation clause. Smithfield moved to dismiss these claims.

Regarding fraudulent concealment, the Court dismissed this claim after determining that Maxwell did not allege that Smithfield had any duty to disclose. The parties’ contractual relationship did not give rise to such a duty. Moreover, Maxwell failed to adequately allege facts showing affirmative acts of concealment which would have given rise to the duty. Although Maxwell alleged several false statements by Smithfield, each lacked the necessary particularity or were otherwise insufficient.

In its complaint, Maxwell alleged that Smithfield was estopped, due to its fraud, from asserting the statute of limitations defense to Maxwell’s claim for breach of the most-favored-nation clause. In response, Smithfield argued that estoppel failed due to the dismissal of the fraud claim and, therefore, the statute of limitations barred Maxwell’s claim for breach of the most-favored-nation clause to the extent it was based on conduct occurring before 2016. The Court declined to undertake an allegation-by-allegation application of the statute of limitations and suggested that such a dispute would be better suited for summary judgment.

Regarding breach of price term, Smithfield asserted that the claim should be dismissed because it did not allege the specific provisions of the agreement that were breached. The Court rejected this argument, concluding that Maxwell had satisfied North Carolina’s notice pleading requirements by alleging the existence of a contract, which was attached to the complaint as an exhibit, and that Smithfield had breached that contract by underpaying.


Loray Mills Devs., LLC v. Camden Loray Mill Phase 1, LLC, 2023 NCBC 12 (N.C. Super. Ct. Feb. 7, 2023) (Bledsoe, C.J.)

Key Terms: summary judgment; statute of limitations; breach of contract; declaratory judgment; continuing wrong doctrine; equitable estoppel; discovery rule; breach of fiduciary duty; constructive fraud; derivative claim; economic loss rule; conversion; intangible interest; unjust enrichment; civil conspiracy

This case involves a dispute between the two principal owners of the Loray Mill project, an urban revitalization and historic preservation project in Gastonia. Plaintiff JBS and Defendant Camden entered into substantially identical operating agreements for various entities formed as part of the project. Each operating agreement permitted JBS to make a capital call for an additional contribution under certain circumstances, and to the extent any member failed to make an additional distribution, permitted any other member to make the additional contribution and treat it either as a loan or, if certain requirements were met, a capital contribution. After JBS made a number of capital calls which Camden did not participate in, a dispute arose regarding the effect the capital calls had on Camden’s ownership interest in the various entities. Plaintiffs brought suit for a declaratory judgment and for breach of contract and Defendants counterclaimed asserting twelve claims. Both sides moved for summary judgment.

Declaratory Judgment Claims. After determining that Georgia law applied to two of the operating agreements and both Georgia and North Carolina law applied to a third, the Court turned to Defendants’ arguments that the capital calls did not dilute their interests because they were inconsistent with the terms of the operating agreements and, as to one entity, were not made specifically for that entity. The Court rejected these arguments because of conflicting evidence and arguments regarding the meaning and interpretation of certain terms and provisions in the operating agreements and whether the parties’ course of conduct modified the operating agreements. Accordingly, summary judgment was denied.

Plaintiffs’ Breach of Contract Claim. Because this claim appeared to depend upon the parties’ competing claims for declaratory judgments, which the Court had already concluded must be resolved at trial, the Court denied Defendants’ motion for summary judgment.

Defendants’ Breach of Contract and Breach of Fiduciary Duty Counterclaims (pre-April 2018). Plaintiffs argued that these claims were barred by a three-year statute of limitations based on undisputed evidence that Defendants were on notice of the alleged breaches more than three years before the counterclaims were filed. In response, Defendants relied upon the continuing wrong doctrine, the discovery rule, and equitable estoppel principles to argue that their counterclaims should survive. The Court rejected each defense in turn. The continuing wrong doctrine did not apply because each of the alleged breach involved separate discrete acts. The discovery rule also did not save the claims because the evidence showed that Defendants were sufficiently aware of the alleged misconduct well before they claimed they were. Finally, equitable estoppel did not apply because the evidence showed that Defendants were put on inquiry as to the truth but did not seek additional information. Accordingly, the Court found that the statute of limitations barred these counterclaims and granted Plaintiffs’ motion for summary judgment.

Defendants’ Breach of Contract and Declaratory Judgment Counterclaims (post-April 2018). The Court determined that issues of fact remained on these claims and denied summary judgment.

Defendants’ Breach of Fiduciary Duty and Constructive Fraud Counterclaims against JBS. As for Defendants’ derivative counterclaims based on the capital calls, the Court determined that because the counterclaims only sought to remedy Defendants’ own injuries, they were direct rather than derivative claims, and therefore, Defendants did not have standing to bring them. As for Defendants’ derivative and direct counterclaims based on JBS’s payment of unbudgeted expenses, the Court concluded that JBS’s fiduciary duties arose from the operating agreements; thus the counterclaims were barred by the economic loss doctrine.

Defendants’ Conversion Counterclaim. The Court dismissed this claim because it was based on conversion of tax credits, which are an intangible interest not subject to a claim for conversion.

Defendants’ Unjust Enrichment Counterclaim. The Court dismissed this claim based on the parties’ agreement that the operating agreements governed their contract claims.

Defendants’ Civil Conspiracy Counterclaim. Lastly, the Court dismissed this claim because it was based on the same conduct as the counterclaims for breach of fiduciary duty and constructive fraud, which were also dismissed.


BIOMILQ, Inc. v. Guiliano, 2023 NCBC 13 (N.C. Super. Ct. Feb. 10, 2023) (Robinson, J.)

Key Terms: motion to dismiss; equitable distribution; misappropriation of trade secrets; trademark infringement; UDTPA; trespass to chattels; patent ownership; subject matter jurisdiction; stay

This action arose from a dispute between the parties regarding certain human cell-cultured technologies and products. The dispute focuses on Defendant Guiliano’s conduct in February 2022, when he photographed pages of a BIOMILQ-issued notebook containing trade secret and confidential information, which was in the custody of Dr. Strickland, a BIOMILQ employee. Defendants moved to dismiss all claims under Rule 12(b)(6).

Misappropriation of Trade Secrets. BIOMILQ alleged that Guiliano misappropriated its trade secrets when he entered Strickland’s home, to which he had access, and took pictures of information in her notebook. The Court, however, dismissed the claim, concluding that BIOMILQ had not sufficiently alleged reasonable steps to maintain the secrecy of the trade secrets, since the complaint only made general statements about how the notebooks were treated.

Common Law Trademark Infringement. Analyzing this claim under federal law standards regarding infringement claims of unregistered trademarks, the Court denied dismissal, finding that BIOMILQ had adequately pleaded that it had valid rights in the BIOMILQ mark and that Defendants’ use of it was likely to cause confusion among consumers.

Unfair and Deceptive Trade Practices. Pursuant to N.C.G.S. § 80-11–13, the Court denied dismissal to the extent this claim relied on BIOMILQ’s common law trademark infringement claim. However, to the extent the claim relied on the dismissed misappropriation of trade secrets claim, it was dismissed as well.

Common Law Unfair Competition. Applying the same analysis as for the UDTPA claim, this claim survived to the extent it was based on the trademark infringement claim.

Trespass to Chattels. The Court found that BIOMILQ had adequately pleaded the first element–actual or constructive possession–based on Strickland’s custody of the notebook while an employee of BIOMILQ. Nonetheless, the claim was dismissed as BIOMILQ had not adequately alleged the second element–unauthorized, unlawful interference with or dispossession of the property. That information within the notebook may have been devalued by Guiliano’s access was not sufficient.

Declaratory Judgments. The Court denied dismissal as to the declaratory judgment claim regarding BIOMILQ’s ownership rights in certain trademarks and other information finding that an actual controversy had been alleged. The Court also denied dismissal as to the declaratory judgment claim regarding the parties’ rights to use the subject matter of certain patents. Although federal courts have exclusive jurisdiction over claims arising under federal patent law, the question of who owns patent rights is a state law issue when the ownership dispute is based on contract, rather than inventorship. Here, BIOMILQ alleged an actual controversy regarding ownership of the patents based on Strickland’s assignment of rights to Plaintiff; thus, the Court had subject matter jurisdiction over the claim and determined that an actual controversy had been sufficiently alleged.


Chi v. N. Riverfront Marina & Hotel, LLLP, 2023 NCBC Order 8 (N.C. Super. Ct. Feb. 7, 2023) (Earp, J.)

Key Terms: stipulation extending deadline; BCR 4.1; BCR 7.6

The parties filed a stipulation purporting to extend the time for Plaintiffs to respond to Defendants’ motions to dismiss. The Court struck the stipulation, explaining that BCR 4.1(e) only allows parties to enter binding stipulations for deadlines set by the North Carolina Rules of Civil Procedure. It does not allow the parties to stipulate to extensions of deadlines established by the Court’s orders or the Business Court Rules, including BCR 7.6 which governs the time frame for filing responsive briefs.


Futures Grp., Inc. v. Brosnan, 2023 NCBC Order 9 (N.C. Super. Ct. Feb. 10, 2023) (Earp, J.)

Key Terms: spousal privilege; N.C.G.S. § 8-56; standing; competent evidence; BCR 7.2

Futures Group and Geoff Cramer, its founder, sued Denis Brosnan, the father of Cramer’s ex-wife Aimee, for disputes arising from their business dealings. In opposition to Brosnan’s motion for partial summary judgment, Futures submitted an affidavit from Cramer, attached to which were audio recordings of four conversations Cramer had with Aimee while they were married. Aimee objected to two of the recordings based on spousal privilege and moved for a protective order.

The Court first determined that Aimee, even as a non-party, has standing to seek protection because she holds a personal privilege in her confidential marital communications which gives her the necessary personal stake in a justiciable controversy.

After conducting an in camera review of the conversations, the Court addressed each in turn. Regarding the first, the Court identified specific portions which were plainly not intended to be confidential because Aimee was largely acting as a messenger relaying information from her father to her husband. Such statements were not protected by the spousal privilege. The remaining portions, however, were private communications made in the confidence of the marital relationship and were therefore protected.

Regarding the second conversation, the Court determined that even though some of the same topics might have also been discussed with Brosnan at other times, Aimee nevertheless considered her statements to be confidential communications with her husband, and therefore, the entire conversation was protected by the spousal privilege.

Accordingly, the Court granted Aimee’s motion in part and ordered that the portions of the conversations protected by the spousal privilege remain under seal and not be considered competent evidence in the case.

Brosnan had also moved for a protective order but had purported to “incorporate by reference” Aimee’s brief rather than submitting his own. The Court summarily denied this motion pursuant to BCR 7.2.


Shah v. Ahmed, 2023 NCBC Order 10 (N.C. Super. Ct. Feb. 13, 2023) (Bledsoe, C.J.)

Key Terms: order on designation; contemporaneous filing

Plaintiffs filed the complaint in this action in November 2022 but did not file a notice of designation until February 2023. Accordingly, designation as a mandatory complex business case under N.C.G.S. § 7A-45.4(a) was improper because Plaintiffs did not comply with the contemporaneous filing requirement of 7A-45.4(d)(1).


By Ashley B. Oldfield

To subscribe to RCD’s Business Court Blast, email Ashley Oldfield at 


The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

Posted 02/15/23

N.C. Business Court Opinions, January 18, 2023 – January 31, 2023

Futures Grp., Inc. v. Brosnan, 2023 NCBC 4 (N.C. Super. Ct. Jan. 19, 2023) (Earp, J.)

Key Terms: indemnification; advancement; partial summary judgment; choice of law; internal affairs doctrine; Delaware law; former director

Defendant, a former director of Plaintiff The Futures Group, Inc. (“Futures”), filed a motion for partial summary judgment on his counterclaim for advancement of litigation expenses. Because advancement is an internal governance matter and Futures is a Delaware corporation, the Court applied the substantive law of Delaware to the issue of advancement.

Despite Plaintiffs’ argument that pursuant to a Delaware statute, actions for advancement and indemnification can only be brought in the Delaware Chancery Court, the Court held that Plaintiffs misconstrued the statute in question and that the Court does have jurisdiction to hear and decide this action. The Court further held that 8 Delaware Code § 145(j) creates a default continuation rule, absent express language in a corporation’s bylaws to the contrary, that a director’s right to advancement continues after his or her status as a director ends. The Futures bylaws contain no such express provision and therefore the Court held Defendant’s right to advancement vested at the time of his actions as a director and did not end when he was removed as a director. The Court also held that Plaintiffs’ accusations of wrongdoings against Defendant did not alleviate it of its obligation to advance his expenses.

The Court granted Defendant’s motion for partial summary judgment and ordered Futures to advance Defendant’s expenses in accordance with its bylaws.


Innovare, Ltd. v. SciTeck Diagnostics, Inc., 2023 NCBC 5 (N.C. Super. Ct. Jan. 19, 2023) (Davis, J.)

Key Terms: motion to amend; motion to dismiss; breach of contract; breach of implied covenant of good faith and fair dealing; conversion; unjust enrichment; unfair competition; fraud; Rule 9(b); Lanham Act; UDTPA; motion to strike

This case arose out of a distributorship agreement between Plaintiff Innovare and Defendant Sciteck, who manufactured COVID-19 test strips for which Defendant was seeking Emergency Use Authorization (EUA) from the FDA. Both parties asserted various claims against each other, with Defendant’s counterclaims focusing on Plaintiff allegedly using the test strips outside the bounds of the EUA approval process. After Plaintiff moved to dismiss the counterclaims and strike Defendant’s affirmative defenses, Defendant moved to amend.

Regarding the motion to amend, the Court determined that it should not be denied on the basis of undue delay based on Defendant’s representation that certain new allegations which are relevant to the proposed amendments had only been discovered after the filing of the initial counterclaims. As to futility, the Court elected to consider both the original counterclaims and the proposed amended counterclaims under the motion to dismiss since the parties had fully briefed both.

Turning to the counterclaims, the Court first concluded that the breach of contract counterclaim survived in part and that, therefore, the counterclaim for breach of implied covenant of good faith and fair dealing also survived. However, since the counterclaims plainly alleged the existence of a contract and did not allege damages beyond those recoverable under a breach of contract theory, the unjust enrichment counterclaim failed.

The Court also dismissed the conversion counterclaim because Defendant did not allege that Plaintiff acquired the test strips illegally or that a demand for their return was made; the common law unfair competition counterclaim because Defendant did not allege that the parties were business competitors; and the fraud counterclaim because the allegations were too general to meet Rule 9(b)’s heightened pleading standard.

As to the Lanham Act counterclaim, the Court concluded that Defendant’s allegations that Plaintiff had exceeded the scope of the distributorship agreement by allowing the test strips to be sold to third-parties despite the absence of FDA approval, and that such conduct caused damages—including reputational injury—to Defendant, were sufficient to state a claim. Since trademark infringement can constitute an unfair or deceptive trade practice, the UDTPA counterclaim also survived.

Turning to Plaintiff’s motion to strike Defendant’s 49 affirmative defenses, the Court agreed that the number of affirmative defenses was excessive, but only struck the three which Plaintiff had specifically identified were improper.


Carolina Med. Partners, PLLC v. Shah, 2023 NCBC 6 (N.C. Super. Ct. Jan. 24, 2023) (Conrad, J.)

Key Terms: unfair and deceptive trade practices; Rule 12(b)(6); choice of law; learned profession exemption

Plaintiffs Nimish Patel and Shephali Patel are practicing physicians who previously owned and operated more than half a dozen businesses with Defendant Amit Shah, including Palmetto Medical Group, LLC. After their professional relationship eroded, the parties participated in a mediation resulting in a Practice Separation Agreement, which provided a framework for the division of their business interests and included a North Carolina choice of law clause. After Shah allegedly breached the Agreement, the Patels filed suit for breaches of the Agreement, fraud, and unfair and deceptive trade practices, all largely based on Shah’s alleged actions to deceptively influence patients’ choice of provider. Defendants moved to dismiss Plaintiffs’ unfair and deceptive trade practices claim.

Plaintiffs argued that both South Carolina and North Carolina law applied to the unfair and deceptive trade practices claim. However, the Court rejected the application of South Carolina law because the Agreement expressly provided that North Carolina law would govern the interpretation and implementation of the Agreement, and the complaint did not allege any extracontractual conduct.

Turning to North Carolina law, the Court determined that Defendants’ alleged conduct fell “comfortably” within the statute’s “learned profession” exemption, as Defendants were members of a learned profession, and the conduct was “directly related to providing patient care.” Thus, the Court dismissed Plaintiffs’ claim for unfair and deceptive trade practices.


Cutter v. Vojnovic, 2023 NCBC 7 (N.C. Super. Ct. Jan. 24, 2023) (Bledsoe, C.J.)

Key Terms: motion for judgment on the pleadings; Rule 12(c); standing; derivative claims; common law general partnership; constructive trust; misappropriation of business opportunity

In this action, Plaintiff Cutter alleged that he and Defendant Vojnovic were general partners in a common law partnership formed to purchase several hot dog businesses, but that Vojnovic thereafter created a separate entity (Defendant Holdings) and misappropriated this opportunity. Plaintiff brought suit, alleging a host of claims both directly and derivatively on behalf of the general partnership. Defendants moved for judgment on the pleadings.

Addressing first the derivative claims, the Court agreed with Defendants that, absent contract or consent, North Carolina law does not permit a general partner to bring a claim derivatively on behalf of the general partnership against another general partner. Therefore, the Court dismissed Cutter’s derivative claims against Vojnovic.

Turning to the direct claims, the Court dismissed the tortious interference with prospective economic advantage claim because Cutter failed to allege specific facts to support his claim. In particular, the Court found that Cutter failed to allege facts showing how Defendants diverted the opportunity or what they did to wrongfully interfere.

The Court also dismissed Cutter’s claim for misappropriation of business opportunity against Vojnovic finding that it was unnecessarily duplicative of Cutter’s breach of fiduciary duty claim because misappropriation of business opportunity is a subspecies of the fiduciary duty of loyalty.

Lastly, because a constructive trust is not a standalone claim, the Court dismissed this claim, but did so without prejudice to Cutter’s right to pursue a constructive trust as a remedy against both Defendants if justified.


rFactr, Inc. v. McDowell, 2023 NCBC 8 (N.C. Super. Ct. Jan. 27, 2023) (Bledsoe, C.J.)

Key Terms: motion to strike; summary judgment; tortious interference; causation; breach of fiduciary duty; UDTPA; in or affecting commerce; defamation per se

This case arose after Jackson National terminated contract negotiations with rFactr, after receiving a call from Caroline McDowell, the wife of rFactr director Chris McDowell, in which Caroline told Jackson National that rFactr was financially unstable (the Call). rFactr and two individual directors/owners filed suit against the McDowells based on the Call, and the McDowells counterclaimed. A number of the parties’ claims were previously disposed of on summary judgment motions and the case was set for trial, but after new information came to light, Defendants moved for summary judgment on Plaintiffs’ remaining claims.

The Court first addressed Defendants’ motion to strike the Gomez Declaration filed in opposition to summary judgment. Defendants argued that Gomez made unauthorized statements on behalf of Jackson National, that he lacked personal knowledge, and that his statements were inadmissible hearsay. The Court disagreed and denied the motion with the exception of Gomez’s statement that Jackson National and rFactr reached a “meeting of the minds” on the terms of a proposed contract. Such a statement was a legal conclusion to which a witness cannot testify.

Turning to the claims, the Court denied summary judgment as to the tortious interference claim against Caroline, concluding that the close proximity of the Call and Jackson National’s decision to discontinue contract negotiations was sufficient circumstantial evidence of causation. However, the Court granted summary judgment in favor of Chris because there was no evidence that Chris knew of or was involved in the Call, and evidence that Chris’s laxity permitted Caroline to gain the information that led to the Call was insufficient to show he acted in concert with her.

The Court also denied summary judgment on the breach of fiduciary duty claim against Chris as an rFactr director for not adequately protecting rFactr’s confidential information from Caroline because there was conflicting evidence on whether and to what extent he knew of her activities.

On the UDTPA claims, the Court denied summary judgment as to Caroline on the same grounds as the tortious interference claim, but granted it in favor of Chris because his actions took place solely within the company and thus were not in or affecting commerce.

Lastly, the Court addressed the individual plaintiffs’ slander per se claims against Caroline and Chris. The Court denied the motion regarding Caroline’s statement that the individuals were under investigation for arson because there was evidence that Caroline failed to exercise reasonable care to ascertain its truth, but otherwise granted summary judgment in Caroline’s favor because the remaining statements were either true or not defamatory on their face. The Court also granted summary judgment in favor of Chris since he was not involved in making the statements.


N.C. Dep’t of Revenue v. FSC II, LLC, 2023 NCBC 9 (N.C. Sup. Ct. Jan. 30, 2023) (Davis, J.)

Key Terms: sales and use tax; mill machinery exemption; Department of Revenue

This matter arises from a dispute between Petitioner, the North Carolina Department of Revenue and Respondent, FSC II, LLC, regarding FSC’s qualification for the Mill Machinery Exemption under the North Carolina Sales and Use Tax Act. FSC, who operated primarily as a contractor, regularly purchased raw materials to create hot mix asphalt (“HMA”) for its projects. Any HMA left over from FSC’s projects was regularly sold by FSC to third parties. Based on this, FSC argued that it qualified for the Mill Machinery Exemption and was entitled to a lower privilege tax on its raw materials rather than the higher sales or use tax. The Department of Revenue sought back-taxes from FSC for sales and use tax. The Office of Administrative Hearings granted summary judgment to FSC in an administrative proceeding, concluding that FSC’s use of the raw materials it purchased to produce HMA constituted “manufacturing” under the Act. The Department of Revenue appealed.

The Court upheld the OAH’s final decision, finding that FSC qualified as a manufacturer under the Mill Machinery Exemption. Using language from Supreme Court cases interpreting the definition of “manufacturing,” the Court determined that FSC’s production of HMA qualified as manufacturing as it involved “the producing of a new article or use or ornament by the application of skill and labor to the raw materials of which it is composed.”


Cent. Carolina Surgical Eye Assocs., P.A. v. Matthews, 2023 NCBC Order 2 (N.C. Super. Ct. Jan. 18, 2023) (Bledsoe, C.J.)

Key Terms: attorneys’ fees; unfair and deceptive trade practices; punitive damages; frivolous or malicious actions; N.C.G.S. § 75-16.1; N.C.G.S. § 1D-45; Rule 41; time-barred

Plaintiff first filed its complaint in 2015 but moved to dismiss the action in 2020 pursuant to Rule 41(a). Plaintiff refiled in 2021 alleging similar causes of action but adding several new claims as well. Upon Defendant’s motion for judgment on the pleadings, the Court found that Plaintiff’s new claim for unfair and deceptive trade practices was barred by the statute of limitations and that the tolling provision of Rule 41 was not applicable thereto. The Court also dismissed Plaintiff’s breach of fiduciary duty claim to the extent it was based on allegations newly made in the 2021 Complaint, and Plaintiff’s “claim” for punitive damages to the extent that it was a standalone claim and based on the dismissed claims. Defendant Matthews then filed a motion for attorneys’ fees pursuant to N.C.G.S. §§ 75-16.1 and 1D-45.

Despite having dismissed the UDTPA and punitive damages claims, the Court held that neither claim was frivolous and/or malicious under Sections 75-16.1 and 1D-45. The Court relied on the extensive briefs and arguments presented by the parties in support of and opposition to the claims during the motion for judgment on the pleadings and found that even though the Court ruled against Plaintiff with respect to these claims, they had not been brought intentionally without just cause or excuse or as a result of ill will. Therefore, the Court denied Defendant’s motion for attorneys’ fees.


Curo Health Servs., LLC v. Havnaer, 2023 NCBC Order 3 (N.C. Super. Ct. Jan. 19, 2023) (Bledsoe, C.J.)

Key Terms: determination order, N.C.G.S. § 7A-45.4(a)(8); order on designation; trade secrets

Pursuant to a determination order from the Supreme Court, the Court addressed whether the action was properly designated as a mandatory complex business case pursuant to N.C.G.S. § 7A-45.4(a)(8), which permits designation if the action involves a material issue related to disputes involving trade secrets. The Court determined that while the complaint alleged the misuse of plaintiff’s confidential information, it did not allege that such information constituted a trade secret or otherwise assert a claim for trade secret misappropriation. Accordingly, designation was improper.


Chi v. N. Riverfront Marina & Hotel, LLLP, 2023 NCBC ORDER 4 (N.C. Super. Ct. Jan. 20, 2023) (Earp, J.)

Key Terms: motion to seal; trade secret protection; waiver; redaction; confidentiality

Plaintiffs in this matter filed two motions seeking to file under seal in their entirety the verified complaint, first amended verified complaint, second amended verified complaint and supporting exhibits, despite the information having already been on the public record for over a year. Because Defendants were the designating party seeking confidentiality, the Court had previously directed them to provide information sufficient for the Court to determine if sealing was warranted.

In response, Defendants argued that Plaintiffs’ pleadings and certain exhibits should be sealed in their entirety because they contained proprietary trade secret information that could be of value to Defendant’s competitors. However, because Defendants did not seek to place their answer or counterclaims under seal, despite those pleadings containing the same information, the Court held that any trade secret protection over the information at issue had been lost and Defendants had waived the ability to assert confidentiality of those materials going forward. Thus, the Court denied the motions but ordered, sua sponte, that the unredacted exhibits containing personal information be sealed and that the parties promptly re-file them with proper redactions.


CitiSculpt Fund Servs., LLC v. Blueprint 2020 Opportunity Zone Fund, LLLP, 2023 NCBC Order 5 (N.C. Super. Ct. Jan. 24, 2023) (Bledsoe, C.J.)

Key Terms: sua sponte; redaction; motion to seal; gatekeeper; public interest; BCR 5

Defendant Blueprint filed a motion to dismiss and supporting affidavits. Without filing the documents provisionally under seal accompanied by a motion to seal as contemplated by Business Court Rule 5, Defendant unilaterally redacted portions of the affidavits it filed in an attempt to “avoid additional motions practice regarding sealing.”

The Court, sua sponte, held that this was procedurally improper and if allowed, would prevent the Court from performing its gatekeeper role of protecting the public interest by keeping court records open to inspection of the public. The determination of whether documents should be filed under seal is within the discretion of the trial court. Therefore, the Court order that Defendant file a motion to seal and file unredacted version of the documents provisionally under seal pending the Court’s ruling on Defendant’s motion to seal.


DS & T II, Inc. v. D & E Tax & Accounting, Inc., 2023 NCBC Order 6 (N.C. Super. Ct. Jan. 25, 2023) (Earp, J.)

Key Terms: attorneys’ fees; N.C.G.S. § 1D-45; punitive damages; frivolous; N.C.G.S. § 6-21.5; absence of a justiciable issue; Rule 11

This litigation involved the business relationship between two accountants, Mohamed Elbahrawi and the late Julio Dibbi. Plaintiffs consist of a corporation owned and operated by Dibbi during his lifetime and his executor, Somerville, who is also the trustee of his testamentary trust. Plaintiffs asserted nine causes of action based on Elbahrawi’s allegedly improper use of Dibbi’s client list and other business assets. Defendants’ motion to dismiss the complaint in its entirety was previously granted and Defendants then moved for attorneys’ fees under various statutes.

The Court granted the motion for attorneys’ fees under N.C.G.S. § 6-21.5 based on Plaintiffs’ persistence in litigating their claims despite notice that the claims were untimely or otherwise unsupported by law.

The Court also granted the motion for attorneys’ fees under N.C.G.S. § 1D-45, concluding that Plaintiffs’ claim for punitive damages was frivolous.

Finally, the Court granted the Rule 11 motion to the extent it was based on the failure of Plaintiffs’ counsel to investigate the facts regarding Plaintiff Somerville’s standing as executor and trustee. However, the Court, in its discretion, otherwise denied the Rule 11 motion, concluding that Plaintiffs’ counsel genuinely believed that the pleadings were well-grounded in fact and law and that the fees awarded under § 6-21.5 and § 1D-45 were sufficient to remedy the harm done.

Accordingly, the Court ordered Plaintiffs’ counsel to pay the reasonable attorneys’ fees incurred by Defendants regarding the standing issue and ordered Plaintiffs to pay the remaining reasonable attorneys’ fees incurred regarding the claims asserted in the amended complaint.


Campbell Sales Grp., Inc. v. Niroflex by Jiufeng Furniture, LLC, 2023 NCBC ORDER 7 (N.C. Super. Ct. Jan. 23, 2023) (Davis, J.)

Key Terms: summary judgment; breach of contract; damages; pre-judgment interest

The Court had previously granted summary judgment in Defendants’ favor on Defendants’ counterclaims for breach of contract. Following the Court’s decision, the Court ordered the parties to submit supplemental briefs addressing damages. In their supplemental briefing, the parties’ only material dispute was concerning the applicable date of breach for the purpose of calculating pre-judgment interest.

Defendants argued that the applicable date of breach could be determined by the invoices submitted to the Court, which reflected the estimated date of shipment for unpaid products. Plaintiff argued that Defendants failed to satisfy its burden at the summary judgment stage, based on the fact that the evidence did not reflect that the products were actually shipped on the date of the invoice. Thus, Plaintiff requested that the Court exercise its discretion to use the filing date of Defendants’ counterclaims as the date upon which interest began to accrue.

The Court rejected Plaintiff’s argument, noting that Plaintiffs had not offered any evidence that would tend to show that the estimated shipping dates contained on Defendants’ invoices were inaccurate. Finding that Defendants had satisfied their burden of proof, the Court ordered that pre-judgment interest would be applied from the date of the estimated shipment contained in Defendants’ invoices.


By Rachel E. Brinson, Natalie Kutcher, and Ashley B. Oldfield


To subscribe to RCD’s Business Court Blast, email Ashley Oldfield at


The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

Posted 02/01/23