Fraud

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The Court dismissed claims against banks which had provided financing to lot purchasers under the Interstate Land Sales Full Disclosure Act. The Court held that there was no showing that the banks were "developers or developer’s agents" as defined by the Act, and furthermore no allegations that the banks’ involvement in the development had gone "beyond standard industry practices with respect to real estate transactions" so as to make them liable under the Act.

The Court also dismissed claims against the banks for negligence and negligent misrepresentation, holding that no…

Continue Reading Allen v. Land Resource Group of North Carolina, LLC, December 4, 2009 (Tennille)(unpublished)

Directors of corporations verging on insolvency can owe fiduciary duties to creditors under certain circumstances.  Whether those duties were owed — and whether the claim for their breach had been released as a part of the corporation’s bankruptcy proceeding — were the main issues yesterday in Phillips and Jordan, Inc. v. Bostic, 2009 NCBC 13 (N.C. Super. Ct. June 2, 2009).

The Plaintiff claimed that the Defendant directors had diverted money through "a web of sham entities" for their own personal benefit during a time when the corporation faced…

Continue Reading Directors Of Corporation Facing “Deepening Insolvency” Owed Fiduciary Duties To Creditor

Motion to Dismiss granted where there were "patent inconsistencies" in the Complaint in Plaintiff’s claims of fraudulent inducement regarding an employment agreement. 

The Court held "it is patently inconsistent for [one of the Plaintiffs] Hittle to allege, on the one hand, that Defendant never intended to pay the wages promised, and on the other, that Defendant in fact performed in part and that it failed to complete performance for reasons unrelated to its intent."  The Court held that partial performance of a contract demonstrates a party’s intention to fulfill the promise…

Continue Reading Warren v. Eli Research, Inc., April 28, 2008 (Diaz)(unpublished)

A counterclaim by a member of a North Carolina LLC against the LLC’s lender for aiding and abetting a breach of fiduciary duty was derivative, not direct.

The Court relied on “[t]he well-established general rule . . . that shareholders cannot pursue individual causes of action against third parties for wrongs or injuries to the corporation that result in the diminution or destruction of the value of their stock.”   That principle applies "equally to suits brought by members of a limited liability company."

The claim that the lender’s actions had resulted in…

Continue Reading Regions Bank v. Regional Property Development Corp., 2008 NCBC 8 (N.C. Super. Ct. April 21, 2008)(Diaz)

Paintiffs, who had suffered signficant losses on variable annuity policies sold to them by the defendant agents and insurance companies, asserted claims on multiple theories: breach of fiduciary duty, constructive fraud, unfair and deceptive practices, negligence, negligent misrepresentation, aiding and abetting breach of fiduciary duty, and unjust enrichment. 

The Court dismissed some claims and ordered the Plaintiffs to replead others with more particularity. 

It held that Plaintiffs could proceed on their claims against some of the agents for breach of fiduciary duty, given the Plaintiffs alleged lack of financial sophistication…

Continue Reading Cox v. Mitchell, February 6, 2008 (Tennille)(unpublished)

Claims against the lender which had financed an acquisition gone awry were barred by the exculpatory provisions of a subordination agreement.  Georgia law applied, and Georgia law permits one contracting party to waive all recourse in the event of breach by the other.  The exculpatory provision was valid and an absolute defense to plaintiffs’ claims, and the Court granted the Defendant’s Motion to Dismiss.

Plaintiffs did not have a claims for the breach of the duty of good faith and fair dealing, because the assertion of valid rights under an…

Continue Reading Webb v. Royal American Company, LLC, March 17, 2008 (unpublished)

This case involved a troubled company, whose board of directors had hired turnaround consultants to assist with management. When the composition of the board of directors changed, the new board sued the consultants, and others, for fraud and unjust enrichment, alleging that the consultants had withheld information from the board and that they had been unjustly enriched (i.e. overpaid). The Court denied a motion to dismiss on the fraud claim, although it said that plaintiffs’ claim was tenuous.

The Court granted the motion to dismiss as to the unjust enrichment…

Continue Reading Connor v. Monarch Hosiery Mills, Inc., 2006 WL 4453451 (November 20, 2006)(Tennille)(unpublished)

The Court dismissed non-contract claims in a dispute between physicians who were parties to Professional Services Agreements. The Court held, based on established North Carolina law, that "a tort action does not lie against a party to a contract who simply fails to properly perform the contract, even if that failure to properly perform was due to the negligent or intentional conduct of that party, when the injury resulting from the breach is damage to the subject matter of the contract. It is the law of contract . . .

Continue Reading Carroll v. Carolinas Physicians Network, Inc., October 14, 2003 (Diaz)(unpublished)

This opinion contains a thorough discussion of the economic loss doctrine. Plaintiff had purchased "sight chambers," used for monitoring intravenous feeds, made with raw material supplied by defendant. Defendant had used low grade materials to fulfill its end of the contract, which led to plaintiff having to recall millions of sight chambers.

As the Court saw it, plaintiff was clearly seeking to recover for economic loss, which were the financial losses it suffered when it was forced to recall a product that did not perform as expected because of a…

Continue Reading Hospira Inc. v. Alphagary Corp., February 16, 2006 (Diaz)(unpublished)

The Court held that the plaintiffs could not state a claim for fraud because neither of them took advantage of their opportunity to investigate the facts presented to them or to seek clarification, and there was no allegation that they had been denied the opportunity to investigate.

Plaintiffs also had no claim for unfair and deceptive practices, because their claims were not "in or affecting commerce." Their claims were essentially a dispute over compensation due to them as employees under the terms of various documents that governed their relationship with…

Continue Reading Schlieper v. Johnson, 2007 NCBC 29 (N.C. Super. Ct. Aug. 31, 2007)(Tennille)