N.C. Business Court Opinions, August 31, 2022 – September 13, 2022
Brenner v. Hound Ears Club, Inc., 2022 NCBC 47 (N.C. Super. Ct. Sept. 1, 2022) (Bledsoe, C.J.)
Key Terms: voluntary association; bylaws; Nonprofit Corporation Act
Defendant is a non-profit corporation which owns and operates a private club for the purpose of running a gated subdivision with amenities. Property owners and non-property owners comprise the Club’s equity membership. The Club’s bylaws permit the Club’s Board of Directors to assess dues and fees on equity members to fund the amenities. The bylaws also permit the Board to amend the bylaws, without approval of the members, with certain restrictions. After the Board adopted a new fee structure which assessed fees against non-property-owning equity members, Plaintiffs brought suit, alleging breach of the bylaws and seeking a declaratory judgment. Following the Defendant’s answer, the parties brought cross-motions for judgment on the pleadings.
Plaintiffs argued that the new fee structure created new classes of membership and constituted a procedurally defective bylaw amendment. Applying traditional rules of contract interpretation, the Court concluded that the creation of new membership classes was a proper exercise of the Board’s powers under the bylaws, not an amendment. Plaintiffs also argued that the assessments violated the North Carolina Nonprofit Corporation Act (the “Act”). The Court rejected this argument, concluding that the plain language in the bylaws expressly allowed the Board to assess fees against any new membership class. Moreover, because the obligations of each class were consistent within each class, there was no violation of the Act’s proscription against unequal treatment. Accordingly, the Court dismissed the action with prejudice.
Vanguard Pai Lung, LLC v. Moody, 2022 NCBC 48 (N.C. Super. Ct. Aug. 31, 2022) (Conrad, J.)
Key Terms: judicial dissolution; minority member; attorneys’ fees; N.C.G.S. 1-538.2(a)
Following a jury trial which resulted in a verdict for Plaintiffs, the parties submitted two issues for the Court’s resolution before entry of judgment: 1) Plaintiffs’ motion for costs and attorneys’ fees, and 2) Defendant Nova Trading’s motion for judicial dissolution of Plaintiff Vanguard.
Regarding the first motion, Plaintiffs sought costs pursuant to N.C.G.S. §§ 6-1, 7A-305(d) and over $2.5 million in attorneys’ fees pursuant to N.C.G.S. § 1-538.2(a). The Court granted the unopposed request for costs but denied, without prejudice, Plaintiffs’ request for attorneys’ fees. The Court determined that Plaintiffs’ request for attorneys’ fees was deficient because 1) only Vanguard, not the other Plaintiff, had any basis to request attorneys’ fees under the statute; 2) the statute only authorized attorneys’ fees relating to an embezzlement claim, and Vanguard had not shown that the other claims in the case were inextricably interwoven with its embezzlement claim; 3) the hourly billing rates of Vanguard’s out-of-state attorneys were unreasonable compared to rates customarily charged in North Carolina; and 4) Vanguard did not submit any billing records.
Regarding the second motion, Nova Trading, the minority member of Vanguard, argued that acrimony between Vanguard’s members made it impossible to conduct Vanguard’s business going forward and that Nova Trading was powerless within Vanguard and needed dissolution to protect its rights. The Court held that these arguments were meritless and denied the motion. Not only had Nova Trading failed to cite any supporting evidence (in violation of the Business Court Rules), but Plaintiffs’ evidence showed that Vanguard was operating and profitable. Moreover, Nova Trading was not powerless; it had all the rights it had bargained for and agreed to when it signed the operating agreement. Finally, dissolution would frustrate the jury’s verdict, which provided that Plaintiffs had not breached the operating agreement.
Forsythe v. N.C. Dep’t of Revenue, 2022 NCBC 49A (N.C. Super Ct. Sept. 9, 2022) (Bledsoe, C.J.)
Key Terms: contested tax case; subject matter jurisdiction; Business Court designation; sovereign immunity
Petitioners initiated a contested tax case in the Office of Administrative Hearings (“OAH”), challenging Respondent’s denial of their request for a refund of certain taxes and raising a constitutional challenge to a tax statute. After dismissal of their case by the OAH, Petitioners filed a Petition for Judicial Review in Wake County Superior Court raising the same issues. The statutes that governed the Petition, N.C.G.S. §§ 105-241.116, 105-241.17, both require that a taxpayer comply with the mandatory business case designation procedures in N.C.G.S § 7A-45.4(b)-(f), which are jurisdictional. Here, Petitioners did not comply with the statute as they filed their notice of designation 29 days after filing their petition, rather than contemporaneously with the petition as required by section 7A-45.4(d). Given that the State only waived sovereign immunity to the extent the statutory requirements were met, Petitioners’ noncompliance divested the Court of subject matter jurisdiction to hear the case. Moreover, because section 7A-45.4(b)(1) mandated that such an action could only proceed as a mandatory complex business case before a Business Court Judge, no other forum was available to Petitioners. Thus, the Court dismissed the Petition with prejudice since Petitioners could not cure their procedural default or proceed in any other forum.
Lafayette Vill. Pub, LLC v. Burnham, 2022 NCBC 50 (N.C. Super. Ct. Sept. 12, 2022) (Davis, J.)
Key Terms: UDTP; in or affecting commerce; LLC; minority member; fiduciary duty
An LLC and two of its members, who collectively own a majority interest in the LLC, brought individual and derivative claims against a minority member of the LLC for breach of fiduciary duty, constructive fraud, accounting, and unfair and deceptive trade practices. Defendant moved to dismiss the UDTP claim arguing that the alleged actions were not in or affecting commerce because they were based solely on intracompany dealings. Plaintiffs countered that the conduct was in or affecting commerce because it affected the LLC’s employees and the Defendant had potentially misused government sponsored disaster loans. After reviewing recent case law, the Court rejected Plaintiffs’ arguments and granted dismissal of the UDTP claim, finding that the indirect effects of Defendant’s conduct on commerce were too attenuated to satisfy the “in or affecting commerce” prong of a UDTP claim. Defendant also moved to dismiss the individual claims for breach of fiduciary duty and constructive fraud based on a lack of fiduciary duty between him and the other members of the LLC. The Court agreed and dismissed both claims, concluding that Plaintiffs failed to plead specific allegations of control by Defendant sufficient to satisfy the test articulated in Corwin v. British Am. Tobacco PLC for whether a minority shareholder owes a fiduciary duty to other shareholders.
In re Se. Eye Ctr. (Pending Matters); In re Se Eye Ctr. (Judgments), 2022 NCBC Order 52 (N.C. Super. Ct. Feb. 17, 2022) (Bledsoe, C.J.)
Key Terms: stay pending appeal; inherent authority
The Court, sua sponte, addressed whether the recent filing of notices of appeal regarding several orders warranted postponing the scheduled trial. The parties disagreed as to whether the appeals barred further action under N.C.G.S. § 1-294 but agreed nonetheless that, for practical reasons, the trial should be continued and other deadlines suspended. Without deciding whether the appeals stayed the action, the Court, pursuant to its inherent authority to manage its docket, agreed and ordered the scheduled trial cancelled and certain case management deadlines suspended.
*This order was entered on February 17, 2022 but not designated as an Order of Significance until September 12, 2022.
By Ashley B. Oldfield
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.