Bohn v. Black

2019 NCBC 34

• Court: North Carolina Business Court
• Decided: June 3, 2019
• Docket: 17-CVS-228
• Status: Published

Opinion

Bohn v. Black, 2019 NCBC 34.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION TRANSYLVANIA COUNTY 17 CVS 228

MATT BOHN and wife, LAURIE BOHN,

Plaintiffs,

v. ORDER AND OPINION JUDITH BLACK; NANCY BLACK; ON MOTIONS FOR PARTIAL SCOTT HATTER; JEANNE HATTER; BLACK FOREST FAMILY SUMMARY JUDGMENT CAMPING RESORT, INC.; and a certain unnamed De Facto North Carolina General Partnership, a/k/a the BLACK FOREST PARTNERSHIP,

Defendants.

1. The Black family has operated a campground in the mountains of western

North Carolina for over 20 years. When family ties frayed in late 2016, Laurie Bohn

(one of three Black daughters) and her husband, Matt Bohn, refused to support the

campground any longer. Laurie’s mother, Judith Black, then threatened to cut off

the Bohns’ access to their home, which sits on the campground property. This lawsuit

followed.

2. The Bohns, both plaintiffs here, allege that they worked at the campground

without pay for more than two decades, while also contributing substantial funds

from outside jobs along the way. They further allege that Judith induced them to do

so with promises of home ownership and, for Laurie, co-ownership of the campground

business. The amended complaint contains twelve claims against Judith, including

claims for de facto partnership, breach of fiduciary duty, unjust enrichment, and others. Laurie’s two sisters (Jeanne Hatter and Nancy Black) and her brother-in-law

(Scott Hatter) are named as additional defendants on the theory that they, too, have

an ownership interest in the campground business that could be affected by the

asserted claims.

3. Discovery is complete. Defendants have moved for summary judgment as

to most but not all asserted claims, and the Bohns have cross-moved for summary

judgment as to some of their own claims as well as Defendants’ affirmative defenses.

For the following reasons, the Court DENIES the Bohns’ motion and GRANTS in

part and DENIES in part Defendants’ motion.

Whitfield-Cargile Law, PLLC, by Davis A. Whitfield-Cargile, and Ramsey & Pratt, PA, by Michael K. Pratt, for Plaintiffs Matt Bohn and Laurie Bohn.

Fisher Stark, P.A., by W. Perry Fisher, II, Brad A. Stark, and Megan N. Silver, for Defendants Judith Black, Nancy Black, Scott Hatter, Jeanne Hatter, Black Forest Family Camping Resort, Inc., and a certain unnamed De Facto North Carolina General Partnership, a/k/a Black Forest Partnership.

Conrad, Judge. I. BACKGROUND

4. The Court does not make findings of fact in ruling on motions for summary

judgment. The following background, describing the evidence and noting relevant

disputes, is therefore intended only to provide context for the Court’s analysis and

ruling. 5. In 1992, Judith and her late husband1 moved to North Carolina, where they

purchased two tracts of land in Transylvania County. (Dep. J. Black 9:5–7; J. Black

Aff. ¶ 2, ECF No. 17.1.)2 Their aim was to open a campground as a family business.

(See Dep. J. Black 11:4–13; M. Bohn Aff. 1, ECF No. 67.7.) Campgrounds need

campsites, picnic tables, and fire pits, among other things—none of which existed at

the time the Blacks bought the property. (Dep. J. Black 9:21–10:20.) It was nearly

three years before they opened to the public. (Dep. J. Black 15:12–13.)

6. Judith invited her daughters—Jeanne, Nancy, and Laurie—to join the

endeavor. (Dep. L. Bohn 205:11–206:1.) Laurie contends, and Judith denies, that

Judith did so with the promise that all three would co-own the business with her.

(See Dep. L. Bohn 18:10–17, 19:17–21:24; Dep. J. Black 103:1–11.) Jeanne and Nancy

helped get the campground ready to open, and Jeanne’s husband, Scott, also decided

to live and work at the campground. (Dep. J. Black 14:25–16:3, 264:5–13.) At the

time, Laurie was attending college in New York, where she met her future husband,

Matt. (Dep. M. Bohn 6:25–7:9.) After earning their degrees, Laurie and Matt moved

in with the rest of the family. (L. Bohn Aff. 2, ECF No. 67.6.) By 1995, the whole

1 John Black died in September 1996. (Dep. J. Black 174:10.) 2 The record includes excerpts of deposition testimony given by most of the parties. These excerpts are spread over several exhibits in support of and opposition to both motions. Excerpts of Judith Black’s testimony appear at ECF Nos. 58.1, 65.1, 67.2, and 71.4. Excerpts of Laurie Bohn’s testimony appear at ECF Nos. 57.1, 65.1, and 67.1. Excerpts of Matt Bohn’s testimony appear at ECF Nos. 57.2, 65.1, and 67.3. Excerpts of Scott Hatter’s testimony appear at ECF Nos. 57.4, 65.1, and 67.5. Excerpts of Jeanne Hatter’s testimony appear at ECF Nos. 57.3, 65.1, 67.4, and 71.5. family—including Matt and Scott—worked at the campground in some capacity. (See

Dep. J. Black 16:13–17:6, 18:22–19:4, 264:14–23.)

7. The campground operated as an unincorporated business until 2004, when

Judith incorporated it as Black Forest Family Camping Resort, Inc. (J. Black Aff.

¶ 11.) She is the corporation’s only officer and shareholder; no shares, stock

certificates, or other ownership documents have ever been issued to any other

member of the family. (J. Black Aff. ¶ 11; Dep. J. Black 120:20–121:11; Dep. L. Bohn

67:9–68:7; Dep. M. Bohn 115:2–24.) The corporation apparently owns some

campground assets, but the real property on which it sits remains in Judith’s name.

(See Dep. J. Black 329:11–20; J. Black Aff. ¶ 11; L. Bohn Aff. 2.)

8. It seems that money was tight in the years before and after the campground

opened. Early on, Matt lent Judith $20,000 from his own savings to cover debts

incurred in building the campground. (Dep. M. Bohn 32:4–12; M. Bohn Aff. 1.) And

when Matt and Laurie married in 1995, they lent Judith another $15,000 from money

received as wedding gifts. (Dep. M. Bohn 42:10–15; M. Bohn Aff. 2.) This second loan

went toward a swimming pool at the campground, all to attract more campers. (See

M. Bohn Aff. 2.) Judith admits that she never repaid either loan. (See Dep. J. Black

286:18–287:1.)

9. During those lean years, the family also began pooling their resources.

Everyone worked at the campground without receiving wages. (See Dep. J. Black

17:7–12, 172:14–20, 315:17–20.) Laurie, Matt, Jeanne, Scott, and Nancy also handed

over all income earned from outside jobs. (See Dep. J. Black 262:19–263:24.) Together with the campground’s revenue and Judith’s Social Security benefits and

inheritance money, these earnings were pooled in a common or general fund

controlled by Judith. (Dep. J. Black 31:19–23, 39:7–24, 123:23–124:7.) She used the

general fund to pay the campground’s bills and to pay for most, if not all, day-to-day

expenses of the Black family members. (Dep. J. Black 20:14–21:24, 173:21–174:7; L.

Bohn Aff. 2; M. Bohn Aff. 1–2.) Judith also gave an allowance to each individual—

including her grandchildren in later years—in an amount that she set and adjusted

over time. (See Dep. J. Black 142:1–146:3; Dep. J. Hatter 116:2–117:4.) Everyone

knew that Judith controlled the family purse; they contributed without knowledge of

how the money was spent or what amount was in the fund at any given time. (See

Dep. L. Bohn 95:2–4; Dep. J. Hatter 171:8–12, 183:24–184:5; Dep. J. Black 135:8–16.)

10. Tracking what went into and out of the general fund is difficult, perhaps

impossible. No accounting ever seems to have been done. (See Dep. J. Black 135:8–

136:4.) Jeanne denies knowing what she put in or received from it. (See, e.g., Dep. J.

Hatter 45:13–46:23, 104:11–105:22.) And the manner of collecting and distributing

money appears to have changed over time. (See Dep. J. Black 142:20–146:9, 168:14–

171:16.) Indeed, the fund itself is spread over Judith’s personal checking account, the

corporation’s checking account, and cash on hand at the campground. (Dep. J. Black

33:1–3, 51:15–53:20.)

11. Over time, this communal arrangement would become a source of friction.

After a few years, the Bohns moved off the campground property to an apartment of

their own, and each found new jobs. (Dep. L. Bohn 44:20–45:18.) Laurie continued to give her paychecks to Judith, but Matt decided to keep his. (Dep. L. Bohn 46:25–

47:10; Dep. M. Bohn 50:5–12.) Both worked at the campground on nights and

weekends, still without pay. (Dep. L. Bohn 47: 9–13; L. Bohn Aff. 3.) When marital

strain led to a brief separation, Laurie returned to the campground. (Dep. L. Bohn

44:3–44:12, 55:7–11; Dep. M. Bohn 54:11–25.) The couple reconciled in late 2001, but

as a condition of returning to the campground, Matt would not contribute his outside

salary to the general fund. (M. Bohn Aff. 2, 4; J. Black Aff. ¶ 10.) Matt believes the

rest of the family resented him for it. (M. Bohn Aff. 3–4.)

12. At some point around this time, the campground seems to have turned the

corner. There was enough money to build a house for Jeanne and Scott in 2004. (See

M. Bohn Aff. 2.) A modular home for Laurie and Matt, now with three children,

followed in 2006. (J. Black Aff. ¶ 14; Dep. M. Bohn 91:8–14; Pls.’ Br. in Opp’n Defs.’

Mot. Partial Summ. J. Ex. K, ECF No. 67.11.) According to Laurie, having a home

on campground property was one of the promises that Judith made to induce her to

live and work there. (L. Bohn Aff. 2–3; Dep. J. Black 173:4–7.) How the modular

home was paid for is unclear. Laurie states that she used her income to obtain a line

of credit, but did not make direct payments toward the house. (L. Bohn Aff. 3; Dep.

L. Bohn 213:11–16.) Judith, on the other hand, claims the payments toward Laurie’s

line of credit and to the building company came from either the campground’s

business funds or Judith’s inheritance money. (J. Black Aff. ¶ 15; Dep. J. Black

68:15–21.) 13. The next decade or so passed uneventfully. Judith’s daughters and their

husbands continued to work for the campground without receiving wages. (See Dep.

J. Black 34:18–25, 315:4–20.) At some point, Nancy and Scott decided to work

exclusively at the campground, but Laurie and Jeanne continued to work other jobs

and contribute their wages to the general fund. (Dep. J. Black 35:1–11.) Matt, too,

worked an outside job but did not contribute his wages to the general fund. (See Dep.

M. Bohn 9:4–12; Dep. L. Bohn 58:5–17.)

14. In late 2016, the Bohns had a sudden falling out with Judith and the rest of

the family. As Laurie and Matt tell it, the family issued an ultimatum out of the blue:

either Matt would agree to turn over his expected Social Security benefits to the

general fund (apparently upon reaching retirement age some twenty years in the

future), or the Bohns must leave the campground. (See Dep. M. Bohn 127:23–128:15,

131:12–133:25.) They refused. (See Dep. M. Bohn 133:21–25; M. Bohn Aff. 4.) From

that point forward, they also stopped working at the campground, and Laurie ceased

giving her income to Judith. (Dep. M. Bohn 134:16–24; Dep. J. Black 217:9–15.)

15. Despite the flare-up, the Bohns continued to live in the modular home on

campground property. (See J. Black Aff. ¶¶ 19, 21.) In May 2017, Judith sent a letter

demanding rent and stating that she intended to block the Bohns from accessing their

home. (Pls.’ Br. in Opp’n Defs.’ Mot. Partial Summ. J. Ex. M, ECF No. 67.13.) The

Bohns filed this lawsuit against Judith and Black Forest Family Camping Resort,

Inc. a few days later. (Compl., ECF No. 1.) The Bohns sought and received a

temporary restraining order to prevent Judith from blocking access to their house, cutting off water, or charging rent. (TRO 4, ECF No. 2.) This Court then granted the

Bohns’ motion for preliminary injunction and enjoined Judith under substantially the

same terms as the temporary restraining order. (Order Granting Mot. Prelim. Inj.

11, ECF No. 24.)

16. The Bohns later amended the complaint to add Nancy, Jeanne, and Scott as

defendants, alleging that each holds a potential ownership interest in the

campground business that could be affected by the asserted claims. The amended

complaint includes nine causes of action: breach of fiduciary duty, undue influence,

unjust enrichment, equitable estoppel, two distinct breaches of contract, conversion,

de facto partnership, and declaratory judgment. It also includes another three claims

for various remedies, including an accounting, appointment of a receiver, constructive

trust, and injunctive relief. Among other things, the Bohns allege that Judith

induced them to work at the campground without pay and to contribute additional

funds, all on the promise that they would receive a home and that Laurie would

co-own the campground business with her mother and sisters. On that basis, they

contend the campground is a de facto partnership, that Judith breached a fiduciary

duty she owed to them, and that Judith would be unjustly enriched if permitted to

keep the home and exclusive ownership of the campground business. In recovery,

they seek ownership of the home, one-quarter of the campground business, and the

real estate associated with both through the imposition of a constructive trust. (Am.

Compl. p.9, ECF No. 26.) 17. Both sides moved for summary judgment on many but not all claims. These

motions have been fully briefed, and the Court held a hearing on January 11, 2019,

at which all parties were represented by counsel. (ECF No. 72.) After the hearing,

the Bohns voluntarily dismissed their claim for wrongful taking and conversion.

(ECF No. 73.) The motions are now ripe for decision.

II. LEGAL STANDARD

18. Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. R. Civ. P. 56(c). In deciding a motion for summary

judgment, the Court views the evidence “in the light most favorable to the non-moving

party,” taking the non-movant’s evidence as true and drawing inferences in its favor.

Furr v. K-Mart Corp., 142 N.C. App. 325, 327, 543 S.E.2d 166, 168 (2001) (internal

citations and quotation marks omitted). The moving party “bears the initial burden

of demonstrating the absence of a genuine issue of material fact.” Liberty Mut. Ins.

Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002).

19. As to the Bohns’ motion for offensive summary judgment on their own

claims, “a greater burden must be met.” Brooks v. Mt. Airy Rainbow Farms Ctr., Inc.,

48 N.C. App. 726, 728, 269 S.E.2d 704, 705 (1980); accord Almond Grading Co. v.

Shaver, 74 N.C. App. 576, 578, 329 S.E.2d 417, 418 (1985). “[The movant] must show

that there are no genuine issues of fact, that there are no gaps in his proof, that no

inferences inconsistent with his recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury.” Parks Chevrolet, Inc. v.

Watkins, 74 N.C. App. 719, 721, 329 S.E.2d 728, 729 (1985); see also Kidd v. Early,

289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976) (same). For that reason, it is “rarely

. . . proper to enter summary judgment in favor of the party having the burden of

proof.” Blackwell v. Massey, 69 N.C. App. 240, 243, 316 S.E.2d 350, 352 (1984).

III. ANALYSIS

20. The Bohns allege that they lived and worked under Judith’s “coercive”

influence for years because of her promises of homeownership and shared ownership

of the campground business. (Am. Compl. p.2.) They claim they are entitled to their

share of the campground and its land, along with the modular home they have lived

in for the past decade. Defendants argue that the Bohns voluntarily contributed to

the family business and are not entitled to any such relief.

21. The parties’ cross-motions overlap on many but not all claims. For clarity,

the Court proceeds claim by claim, addressing the competing motions together rather

than in sequence.

A. De Facto Partnership

22. Though enumerated as Claim IX in the amended complaint, the claim for de

facto partnership looms over this dispute. Through this claim, Laurie seeks to

establish that the campground business is a partnership and that she owns one-

fourth of the campground business and the land on which it sits. Laurie bases the

claim on Judith’s alleged promise that each of her daughters would be co-owners of

the campground. (Am. Compl. p.11.) If Laurie is correct, she may be entitled to dissolution of the partnership and a distribution of her share of its assets.3 Both sides

move for summary judgment on this claim.

23. “A partnership is an association of two or more persons to carry on as

co-owners a business for profit.” N.C. Gen. Stat. § 59-36(a). In other words, a

partnership arises when individuals “combine their property, effects, labor, or skill in

a common business or venture.” Johnson v. Gill, 235 N.C. 40, 44, 68 S.E.2d 788, 792

(1952) (citation and quotation marks omitted). No formal agreement is required—a

de facto partnership may exist if the parties’ conduct demonstrates “a voluntary

association of partners.” Best Cartage, Inc. v. Stonewall Packaging, LLC, 219 N.C.

App. 429, 438, 727 S.E.2d 291, 299 (2012). Our courts have emphasized, though, that

“co-ownership and sharing of any actual profits are indispensable requisites for a

partnership.” Id. (quoting Wilder v. Hobson, 101 N.C. App. 199, 202, 398 S.E.2d 625,

627 (1990)).

24. Laurie argues that she has satisfied both indispensable requirements as a

matter of law. Laurie contends that she, Jeanne, and Nancy all held themselves out

as co-owners, with Judith’s encouragement and permission. (Pls.’ Br. in Supp. Mot.

Partial Summ. J. 10, ECF No. 52 [“Pls.’ Br. in Supp.”], see also Dep. L. Bohn 42:22–

43:10, 209:6–15.) In addition, Laurie points to evidence that she and her sisters

3 Though not expressly identified as such, this claim appears to be one for an alleged breach

of an implied partnership agreement, for judicial dissolution of the alleged partnership, or for both. The Court refers to the claim as Laurie’s because the amended complaint does not allege that Matt is also a partner. (See Am. Compl. p.11 (identifying “the four general and equal partners” as Judith, Laurie, Nancy, and Jeanne).) At the hearing, counsel for the Bohns conceded that Matt and Scott have no interest apart from the interests, if any, of their wives. Thus, only Laurie asserts the partnership claim, and the Court analyzes the claim on that basis. worked at the campground without pay and also contributed to the family’s general

fund all wages from other jobs. (Pls.’ Br. in Supp. 9; see also Dep. L. Bohn 208:5–17.)

According to Laurie, Judith was required to make payments out of the general fund

equally for the benefit of all. (Pls.’ Br. in Supp. 9.)

25. Defendants, on the other hand, highlight Laurie’s deposition testimony, in

which she denied sharing in campground profits or receiving a share of income.

(Mem. in Supp. Defs.’ Mot. Partial Summ. J. 11–12, ECF No. 54 [“Defs.’ Mem. in

Supp.”]; see also Dep. L. Bohn 166:4–22.) Defendants also contend that Laurie cannot

show co-ownership. They point to evidence that Judith is the sole shareholder of

Black Forest Family Camping Resort, Inc. (Defs.’ Mem. in Supp. 13; see also Dep. L.

Bohn 67:9–68:7; J. Black Aff. ¶¶ 11, 12.) They further argue that Laurie had no

control over campground property or ability to govern its operations. (Defs.’ Mem. in

Supp. 13.)

26. After careful consideration, the Court concludes that the undisputed

evidence requires summary judgment in favor of Defendants. Simply put, “the

indispensable requisite of co-ownership of the business is lacking.” McGurk v. Moore,

234 N.C. 248, 252, 67 S.E.2d 53, 56 (1951).

27. To start, it is undisputed that the campground business is formally

organized as a corporation, not a partnership; that none of Judith’s daughters or their

husbands own stock in the corporation; and that Judith is its sole shareholder. (J.

Black Aff. ¶ 11; Dep. J. Black 120:20–121:11; Dep. L. Bohn 67:9–68:7; Dep. M. Bohn

115:2–24.) By the time Judith incorporated the business in 2004, it had already been in operation for nearly a decade. (See J. Black Aff. ¶¶ 3, 11.) Laurie did not object to

the new corporate form, nor did she take any steps to preserve her alleged ownership

interest, through the issuance of stock or otherwise. (See Dep. L. Bohn 157:3–25.)

There is also no evidence that any party, including Laurie, has ever filed a state or

federal income tax return identifying the campground as a partnership, either before

or after the business was incorporated. Indeed, it appears that Laurie has never

reported income of any kind from the campground on her personal tax returns. (See

Dep. L. Bohn 166:1–3.) This evidence, all undisputed, strongly suggests that no legal

partnership existed. See, e.g., Qubain v. Granberry, 2007 N.C. App. LEXIS 27, at *7–

8 (N.C. Ct. App. Jan. 2, 2007) (unpublished); Wilder, 101 N.C. App. at 203, 398 S.E.2d

at 628; G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 110, 362 S.E.2d 807,

810 (1987).

28. At most, Laurie’s evidence shows that she and her sisters sometimes

referred to themselves as co-owners when interacting with campers and on social

media, all with Judith’s permission. (See Dep. J. Black 103:14–25; Dep. L. Bohn

209:10–18; Dep. J. Hatter 75:15–24, 86:5–87:10.) Jeanne now denies ever having

been a co-owner of the campground, claiming that she said so only to boost her

credibility with customers. (See Dep. J. Hatter 65:16–25, 75:25–76:24, 113:14–20.)

Nancy was not deposed, and her views are unknown. But even if Laurie and her

sisters believed a partnership existed, that belief, standing alone, “cannot create a

legal partnership.” Dealers Supply Co. v. Cheil Indus., 348 F. Supp. 2d 579, 589

(M.D.N.C. 2004); see also Anderson v. Brokers Inc. (In re Brokers, Inc.), 363 B.R. 458, 470 (Bankr. M.D.N.C. 2007) (“A general statement that parties are partners cannot

outweigh the conduct of the parties.”). There must be some other indicia of actual co-

ownership.

29. Such indicia are lacking here. There is no evidence that Laurie (or her

sisters) exercised independent managerial judgment over the campground. See, e.g.,

G.R. Little Agency, 88 N.C. App. at 110, 362 S.E.2d at 810; Zickgraf Hardwood Co. v.

Seay, 60 N.C. App. 128, 133–34, 298 S.E.2d 208, 211 (1982). Rather, all of the

evidence shows that Laurie did not, and could not, exercise independent judgment or

control of the campground business. Laurie testified that she never felt as if she had

an equal vote with her mother in running the campground and that her mother was

the one whose lead “we had to follow.” (Dep. L. Bohn 219:3–11.) Judith would always

make the final decision even if Laurie or the other family members dissented. (Dep.

L. Bohn 219:12–16; Dep. J. Black 123:23–124:7; 236:14–237:23.) Indeed, Laurie

considered Judith the “boss,” assigning duties that others then executed. (Dep. L.

Bohn 218:12–20.) It also bears noting that the real property that is home to the

campground is titled in Judith’s name, and Judith has absolute control over that

property. (See J. Black Aff. ¶¶ 11, 13; Dep. J. Black 329:12–15.)

30. In short, the undisputed evidence shows that Judith controlled the money

coming into and going out of the campground business and made all major decisions

related to the campground. Laurie and her sisters had no “authority of any kind over

each other” or over the campground business and its property. Wilder, 101 N.C. App.

at 203, 398 S.E.2d at 628; see also Builder Mart of Am. v. First Union Corp., 2003 N.C. App. LEXIS 517, at *14–15 (N.C. Ct. App. Mar. 18, 2003) (unpublished)

(affirming order granting summary judgment because no evidence indicated that

plaintiff held equal right of control over alleged partnership property).

31. Taking the evidence in a light most favorable to Laurie, the Court concludes

that the essential element of co-ownership is lacking. Thus, the Court grants

Defendants’ motion for summary judgment as to the claim for de facto partnership

and denies the Bohns’ motion. The Court need not address Defendants’ alternative

argument that this claim is barred by the statute of limitations.

B. Breach of Fiduciary Duty

32. As alleged, Judith held nearly despotic control over her family and the

campground business. The Bohns claim that Judith owed them a fiduciary duty as a

result and that she breached that duty by, among other things, blocking access to

their home and mismanaging the money they contributed to the family’s general

fund. (See Am. Compl. pp.6–7 (Claim I).) Again, both sides seek summary judgment

in their favor as to this claim.4

33. “For a breach of fiduciary duty to exist, there must first be a fiduciary

relationship between the parties.” Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d

704, 707 (2001). A fiduciary relationship arises when “there has been a special

confidence reposed in one who in equity and good conscience is bound to act in good

faith and with due regard to the interests of one reposing confidence.” Dallaire v.

4 In their opening brief, Defendants express uncertainty over whether the amended complaint

asserts a claim for breach of fiduciary duty against anyone other than Judith. (See Mem. in Supp. 8–9.) The Court reads the amended complaint to allege a fiduciary relationship between the Bohns and Judith, but not any other defendant. (See, e.g., Am. Compl. pp.6–7.) Bank of Am., N.A., 367 N.C. 363, 367, 760 S.E.2d 263, 266 (2014) (quoting Green v.

Freeman, 367 N.C. 136, 141, 749 S.E.2d 262, 268 (2013)). This definition is expansive

yet exacting: “only when one party figuratively holds all the cards—all the financial

power or technical information, for example—have North Carolina courts found that

the special circumstance of a fiduciary relationship has arisen.” Kaplan v. O.K.

Techs., L.L.C., 196 N.C. App. 469, 475, 675 S.E.2d 133, 138 (2009) (citing Broussard

v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 348 (4th Cir. 1998)).

34. To the extent this claim is based on the fiduciary duties that partners owe

to one another, it must fail. See, e.g., Casey v. Grantham, 239 N.C. 121, 124, 79 S.E.2d

735, 738 (1954) (“It is elementary that the relationship of partners is fiduciary . . . .”).

As discussed, the undisputed evidence is insufficient to establish a legal partnership

between Judith and Laurie.

35. Defendants argue that the only other alleged basis for a fiduciary

relationship is the parent-child relationship between Judith and Laurie. (See Defs.’

Mem. in Supp. 9.) They cite case law holding that family relationships are generally

not fiduciary relationships. On that basis, Defendants contend that “[n]o further

explanation or analysis is needed.” (Defs.’ Mem. in Supp. 9.)

36. This argument is not persuasive. It is true that “[a]n allegation of a mere

family relationship is not particular enough to establish a confidential or fiduciary

relationship.” Benfield v. Costner, 67 N.C. App. 444, 446, 313 S.E.2d 203, 205 (1984)

(citations and quotation marks omitted); see also Davis v. Davis, 236 N.C. 208, 211,

72 S.E.2d 414, 416 (1952) (noting that the parent-child relationship “is a family relationship, not a fiduciary one, and such relationship does not raise a presumption

of fraud or undue influence”). But there are certainly circumstances in which a family

relationship can become a fiduciary relationship, particularly when one person

assumes control or direction over the interests or affairs of another. See Keister v.

Nat’l Council of the YMCA of the United States, 2013 NCBC LEXIS 32, at *19 (N.C.

Super. Ct. July 18, 2013) (collecting cases where a fiduciary duty arose based on

“special circumstances”). In such cases, the existence of “a close family relationship

can serve as a factor for consideration” that weighs in favor of finding a fiduciary

relationship. Hewitt v. Hewitt, 252 N.C. App. 437, 443, 798 S.E.2d 796, 800 (2017).

37. That is what the Bohns allege. They do not argue that a fiduciary

relationship arose solely from the parent-child relationship (which, of course, Judith

and Matt do not share). Rather, the Bohns rely on Judith’s management of the

family’s general fund. The evidence shows that Laurie and Matt, along with all other

family members, contributed substantial sums to the general fund over the past two

decades. (See, e.g., Dep. L. Bohn 213:3–10; Dep. M. Bohn 50:13–24.) Judith wholly

controlled this fund. (See Dep. L. Bohn 95:8–12; Dep. J. Black 236:14–237:23.) No

one in the family knew how much money was in the fund at any given point, and

decisions as to how the money would be spent were left to Judith’s discretion. (See

Dep. L. Bohn 95:2–4; Dep. J. Black 123:23–124:7; Dep. J. Hatter 183:24–184:5.) From

this evidence, a jury could conclude that the Bohns entrusted Judith with control over

a significant part of their finances, such that she was required to manage the fund in

their best interests. 38. This does not mean the Bohns are entitled to summary judgment in their

favor, as they contend. It is “rarely . . . proper to enter summary judgment in favor

of the party having the burden of proof.” Blackwell, 69 N.C. App. at 243, 316 S.E.2d

at 352. And whether a fiduciary relationship exists “is generally a question of fact

for the jury.” Carcano v. JBSS, LLC, 200 N.C. App. 162, 178, 684 S.E.2d 41, 53 (2009).

39. This is not the rare circumstance in which offensive summary judgment

would be proper. The relationship between Judith, her children, and the campground

defies easy definition. Given the nature of the work performed by Laurie, Matt, and

the others, a neutral observer might think they were unpaid employees in a family

business. Some family members resisted that label in their depositions, (see Dep. S.

Hatter 10:7–25; Dep. J. Hatter 114:6–19), but the jury may find it apt. If so, the jury

may have reason to conclude that a fiduciary relationship does not exist between

Judith and the Bohns. See Timbercreek Land & Timber Co., LLC v. Robbins, 2017

NCBC LEXIS 64, at *20 (N.C. Super. Ct. July 28, 2017) (“In general, an employer-

employee relationship does not give rise to fiduciary duties.”).

40. Moreover, Defendants have offered evidence that Laurie and Matt are

capable, college-educated adults; that they freely left the campground at certain

points; and that Matt has not contributed his income to the general fund since 1999.

(See L. Bohn Aff. 1; Dep. M. Bohn 120:17–19, 135:13–17; Dep. L. Bohn 44:14–45:3.)

Taken in a light most favorable to Judith, this evidence could suggest that the balance

of power, financial intelligence, and business acumen was relatively level, not skewed

in her favor. See, e.g., White v. Consol. Planning, Inc., 166 N.C. App. 283, 293–94, 603 S.E.2d 147, 155 (2004); Kaplan, 196 N.C. App. at 476, 675 S.E.2d at 138–39.

Whether Judith in fact held “all the cards” in the relationship is a question for the

jury. See Kaplan, 196 N.C. App. at 476, 675 S.E.2d at 139.

41. There are at least two other reasons to deny the Bohns’ motion as to this

claim. The first has to do with damages. One element of a claim for breach of

fiduciary duty is that the breach proximately caused injury to the plaintiffs. See

Miller v. Burlington Chem. Co., LLC, 2017 NCBC LEXIS 6, at *23 (N.C. Super. Ct.

Jan. 27, 2017). The evidence on this element is nebulous. It is clear that the Bohns

contributed funds to the campground and that they received allowances, expenses,

and other sums in return. Yet the record does not reveal exactly how much they put

in or took out over the years, much less how those sums compare with the

contributions and withdrawals of other family members. Whether the Bohns were

injured and whether that injury can be measured remain unresolved.

42. Second, Defendants have asserted the statute of limitations as a defense.

The statute of limitations for a claim for breach of fiduciary duty is three years. See,

e.g., Toomer v. Branch Banking & Tr. Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 335

(2005) (citing N.C. Gen. Stat. § 1-52(1)). Having reviewed the record, the Court

concludes that there are genuine disputes of fact as to whether the Bohns knew or

should have known of the facts giving rise to their claim more than three years before

filing this action. See id. at 69, 614 S.E.2d at 336.

43. The Court therefore denies both motions for summary judgment as to the

claim for breach of fiduciary duty. C. Undue Influence

44. Undue influence is a claim usually seen in will contests, arising from

allegations that someone induced the testator, in a weakened mental state, to revoke

or alter a will. The Bohns allege something rather different: that Judith used “her

strong will and intimidation” to “coerce” them into paying her large sums of money

over the past two decades. (Am. Compl. p.7 (Claim II).) Defendants move for

summary judgment, arguing that there is no evidence these “two grown professionals

with college degrees” were unduly influenced. (Defs.’ Mem. in Supp. 20.) The Court

agrees.

45. Our appellate courts have observed that undue influence “is usually difficult

to prove.” In re Will of Dunn, 129 N.C. App. 321, 328, 500 S.E.2d 99, 104 (1998). It

“is defined as ‘the exercise of an improper influence over the mind and will of another

to such an extent that his professed act is not that of a free agent, but in reality is the

act of the third person who procured the result.’” Hayes v. Turner, 98 N.C. App. 451,

456, 391 S.E.2d 513, 516 (1990) (quoting Lee v. Ledbetter, 229 N.C. 330, 332, 49 S.E.2d

634, 636 (1948)). Undue influence requires “more than mere influence or persuasion

because a person can be influenced to perform an act that is nevertheless his

voluntary action.” In re Will of Jones, 362 N.C. 569, 574, 669 S.E.2d 572, 577 (2008)

(quoting In re Will of Andrews, 299 N.C. 52, 53, 261 S.E.2d 198, 199 (1980)). “It is

close akin to coercion produced by importunity, or by a silent, resistless power,

exercised by the strong over the weak, which could not be resisted, so that the end reached is tantamount to the effect produced by the use of fear or force.” Id. (quoting

In re Will of Turnage, 208 N.C. 130, 132, 179 S.E. 332, 333 (1935)).

46. That is a high bar and, of course, requires evidence that the victim is in a

physical or mental state that renders him or her subject to the coercive influence of

another. Individuals who are of sound mind and body are generally not susceptible

to undue influence. The undisputed evidence shows that Laurie and Matt are college

graduates, have held multiple jobs outside the campground, and are currently raising

three children of their own. No evidence suggests that either suffers from an illness

or other form of “physical and mental weakness.” In re Will of Campbell, 155 N.C.

App. 441, 455, 573 S.E.2d 550, 561 (2002). Nor are they of advanced age; both joined

the campground in their twenties and are now in their forties. Put simply, the facts

of this case have nothing in common with those of other cases in which courts have

found undue influence. See, e.g., Tortorgul v. Abayhan (In re Will of Biatschora), 207

N.C. App. 174, 187, 700 S.E.2d 50, 59 (2010) (discussing undue influence over 76-

year-old with terminal cancer); In re Will of McDonald, 156 N.C. App. 220, 229–30,

577 S.E.2d 131, 138 (2003) (discussing undue influence over 87-year-old who “became

easily confused by her medications”).

47. The Bohns have not marshalled evidence sufficient to permit a jury to

conclude that they were “susceptible to fraud or undue influence.” In re Will of

Campbell, 155 N.C. App. at 457, 573 S.E. 2d at 562. Thus, the Court grants

Defendants’ motion for summary judgment as to the claim for undue influence. The

claim is dismissed with prejudice. D. Equitable Estoppel

48. The Court also grants Defendants’ motion for summary judgment as to the

claim for equitable estoppel. The Bohns claim that Judith should be estopped from

denying having promised that the couple would own their home and that Laurie

would own part of the campground business. (Am. Compl. pp.8–9 (Claim IV).) But

“North Carolina does not recognize equitable estoppel as an affirmative cause of

action.” Regency Ctrs. Acquisition, LLC v. Crescent Acquisitions, LLC, 2018 NCBC

LEXIS 7, at *16–17 (N.C. Super. Ct. Jan. 24, 2018) (listing cases); see also Chapel

H.O.M. Assocs., LLC, 808 S.E.2d 576, 579 (N.C. Ct. App. 2017). Equitable estoppel

is instead “a defense which can only be considered when set out in [an] answer.”

Aldridge Motors, Inc. v. Alexander, 217 N.C. 750, 756, 9 S.E.2d 469, 473 (1940). This

claim is dismissed with prejudice.

E. Unjust Enrichment

49. The claim for unjust enrichment is based on the work that Laurie and Matt

performed at the campground without pay and the additional monetary contributions

they’ve made to the business. They claim that these contributions benefitted Judith

and that she would be unjustly enriched if permitted to keep the modular home and

the surrounding land and to maintain exclusive ownership of the campground

business. (See Am. Compl. pp.7–8 (Claim III).) Defendants move for summary

judgment in their favor as to this claim.

50. “The doctrine of unjust enrichment was devised by equity to exact the return

of, or payment for, benefits received under circumstances where it would be unfair for the recipient to retain them without the contributor being repaid or compensated.”

JPMorgan Chase Bank, N.A. v. Browning, 230 N.C. App. 537, 542, 750 S.E.2d 555,

559–60 (2013). There are five elements: (1) “one party must confer a benefit upon the

other party;” (2) “the benefit must not have been conferred officiously;” (3) “the benefit

must not be gratuitous;” (4) “the benefit must be measurable;” and (5) “the defendant

must have consciously accepted the benefit.” Butler v. Butler, 239 N.C. App. 1, 7, 768

S.E.2d 332, 336 (2015) (quoting JPMorgan Chase, 230 N.C. App. at 541–42, 750

S.E.2d at 559). In other words, the facts must demonstrate that “property or benefits

were conferred on a defendant under circumstances which give rise to a legal or

equitable obligation on the part of the defendant to account for the benefits received.”

Norman v. Nash Johnson & Sons’ Farms, Inc., 140 N.C. App. 390, 417, 537 S.E.2d

248, 266 (2000).

51. In support of their motion, Defendants make a narrow argument. According

to Defendants, Laurie and Matt received a great deal in return for their contributions:

“shelter, an allowance, food and groceries, child care and even access to a swimming

pool and other recreational areas.” (Defs.’ Mem. in Supp. 16.) This, Defendants

contend, “was a fair trade,” such that there could be no unjust enrichment. (Defs.’

Mem. in Supp. 16.)

52. Things are not so tidy. Some evidence suggests that Judith induced Laurie

and Matt to contribute their time and money to the campground based on the promise

that they would receive a home and that Laurie would co-own the campground

business. (See Dep. L. Bohn 207:11–15, 228:10–17; L. Bohn Aff. 2–3.) Whether Judith actually made those promises is disputed, but the Court must accept them as

true at this stage, and Laurie and Matt assert that they contributed their labor and

money in reliance on them. (See Dep. L. Bohn 207:16–208:22, 214:20–24; L. Bohn

Aff. 2.) Laurie and Matt have also pointed to evidence that they built their modular

home, at least in part, using their own money. (See M. Bohn Aff. 2–3; L. Bohn Aff.

3.) If the jury credits the Bohns’ view of the facts, it could conclude that Judith

induced them to improve her land and business based on promises she failed to keep.

The jury could also conclude that Judith would be unjustly enriched if allowed to keep

the benefit of those improvements. See, e.g., Graham v. Martin, 149 N.C. App. 831,

834, 561 S.E.2d 583, 585–86 (2002) (affirming finding of unjust enrichment based on

evidence that plaintiffs had improved defendants’ land but were ejected from it); see

also Hall v. Mabe, 77 N.C. App. 758, 761, 336 S.E.2d 427, 429 (1985) (affirming

submission of unjust enrichment claim to the jury when plaintiff improved in-laws’

property).5

5 One other observation bears note. Unjust enrichment “is an equitable claim.” Primerica Life Ins. Co. v. James Massengill & Sons Constr. Co., 211 N.C. App. 252, 264, 712 S.E.2d 670, 679 (2011). In the event the Bohns prevail, the Court will need to fashion an equitable remedy, bearing in mind the conduct of all parties and the need to achieve an equitable result. See, e.g., Sara Lee Corp. v. Carter, 351 N.C. 27, 36, 519 S.E.2d 308, 314 (1999) (“It is a long- standing principle that when equitable relief is sought, courts claim the power to grant, deny, limit, or shape that relief as a matter of discretion.” (citation and quotation marks omitted)); Loving v. Webb, 2014 N.C. App. LEXIS 840, at *12 (N.C. Ct. App. Aug. 5, 2014) (unpublished). One factor the Court may consider is whether and how the parties have paid taxes on the funds and property in dispute. The deposition testimony of several witnesses suggests that the corporation has paid some form of income tax but that personal income taxes or property taxes on certain assets may have gone unpaid. (See, e.g., Dep. L. Bohn 166:1–3; Dep. M. Bohn 58:12–14, 101:11–13, 140:5–8; Dep. J. Black 54:10–12, 135:17–21.) Whether this approach runs afoul of state or federal tax laws is unclear. If, after all the evidence is received, it appears that the parties have collectively shirked their tax obligations for more than 20 years, the Court may consider that fact in fashioning an appropriate equitable remedy. 53. The Court denies Defendants’ motion for summary judgment on the claim

for unjust enrichment.

F. Remedial Claims

54. The Bohns assert claims for a constructive trust, a permanent injunction,

an accounting of all moneys paid to Judith, and appointment of a receiver to take over

Black Forest Family Camping Resort, Inc. (See Am. Compl. p.9 (Claim V); p.12

(Claim X); pp.12–13 (Claim XII).) All are potential remedies, not independent causes

of action. See Weatherford v. Keenan, 128 N.C. App. 178, 179, 493 S.E.2d 812, 813

(1997) (constructive trust); Brewster v. Powell Bail Bonding, Inc., 2018 NCBC LEXIS

76, at *18 (N.C. Super. Ct. July 26, 2018) (injunction); Hampton v. Hanzel, 2018

NCBC LEXIS 66, at *69–70 (N.C. Super. Ct. June 29, 2018) (accounting); Johnston

v. Johnston Props., Inc., 2018 NCBC LEXIS 119, at *42 (N.C. Super. Ct. Nov. 15,

2018) (receiver).

55. In seeking and opposing summary judgment as to these remedies, the

parties largely rely on their arguments about the merits of the underlying causes of

action, including the claims for de facto partnership, breach of fiduciary duty, and

unjust enrichment. Defendants argue, for example, that the Bohns are not entitled

to an accounting or to the appointment of a receiver because their claims for de facto

partnership and breach of fiduciary duty are defective. (See Defs.’ Mem. in Supp. 23–

24.) The Bohns, on the other hand, argue that they are entitled to an accounting as

a matter of law “by virtue of the fiduciary status of Judith Black.” (Pls.’ Br. in Supp.

at 7–8.) The Court has concluded that the claims for breach of fiduciary duty and unjust enrichment must be decided by a jury. Accordingly, the Court denies both

sides’ motions to the extent they seek summary judgment as to the remedies of

accounting and receivership.

56. It would also be premature to address the Bohns’ requests for a constructive

trust and permanent injunction. In the Order granting the Bohns’ motion for a

preliminary injunction, the Court concluded that they had shown a likelihood of

success on the merits of the claim for unjust enrichment and that a constructive trust

is an available remedy for that claim. (See Order Granting Mot. Prelim. Inj. 7–9.)

Defendants have not moved to dissolve the preliminary injunction, which remains in

force, and the claim for unjust enrichment will proceed to trial. The Court believes it

would be more appropriate to resolve the disputed facts underlying the claim for

unjust enrichment before imposing or denying remedies based on that claim. Each

side’s motion for summary judgment is therefore denied.

G. Declaratory Judgment

57. The Bohns’ claim for declaratory judgment is actually a request for three

separate declarations. They ask the Court to declare the parties’ ownership interests

in the modular home, the campground business, and the land associated with each.

(See Am. Compl. p.12 (Claim XI).) The claim for declaratory judgment is predicated

on the underlying claims for de facto partnership and unjust enrichment.

58. Defendants move for summary judgment solely on the ground that these

underlying “substantive claims fail as a matter of law.” (Defs.’ Mem. in Supp. 24.)

Although the Court has granted summary judgment as to Laurie’s claim for de facto partnership, the underlying claim for unjust enrichment remains for trial. Thus, it

would be premature to declare the parties’ rights. The Court denies Defendants’

motion for summary judgment as to the claim for declaratory judgment.

59. The Bohns also listed this claim in their motion for summary judgment, but

they did not address the claim in their briefing or at the hearing. In the absence of

any supporting argument, the Court denies the Bohns’ motion for summary judgment

as to the claim for declaratory judgment.

H. Contract Claims

60. The amended complaint also includes two distinct claims for breach of

contract. (Am. Compl. pp.9–10 (Claims VI, VII).) “The elements of a claim for breach

of contract are (1) existence of a valid contract and (2) breach of the terms of that

contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000).

1. Breach of Contract for Money Owed

61. The Bohns allege that they lent Judith $35,000 in two separate loans,

neither of which has been repaid. Matt lent Judith $20,000 around the time the

campground first opened to help defray some of its start-up costs. (Dep. M. Bohn

33:17–20; M. Bohn Aff. 1.) Shortly thereafter, the Bohns lent Judith another $15,000

from money they received as wedding gifts. (Dep. M. Bohn 42:10–20; M. Bohn Aff.

2.) During her deposition, Judith admitted that she received both loans but has not

repaid either. (Dep. J. Black 286:18–287:1.) Based on these undisputed facts, the

Bohns seek summary judgment in their favor. 62. As noted, though, it is rarely appropriate to grant summary judgment in

favor of the party with the burden of proof. To carry their burden, the Bohns must

show “that there is no standard that must be applied to the facts by the jury.” Parks

Chevrolet, 74 N.C. App. at 721, 329 S.E.2d at 729. It appears, however, that both

loans were given without specifying a time for repayment. The rule in North Carolina

is that “money lent pursuant to a verbal agreement, which fails to specify a time for

repayment, is payable within a reasonable time.” Helms v. Prikopa, 51 N.C. App. 50,

54, 275 S.E.2d 516, 518 (1981) (reversing grant of offensive summary judgment). The

length of time deemed “reasonable” to demand repayment is a “material issue of fact

to be answered by the jury.” Phillips & Jordan Inv. Corp. v. Ashblue Co., 86 N.C.

App. 186, 188, 357 S.E.2d 1, 2 (1987). As a result, even if the jury credits Laurie and

Matt’s version of the facts, it must apply a reasonableness standard to the time and

manner of repayment. See 759 Ventures, LLC v. GCP Apt. Inv’rs, LLC, 2018 NCBC

LEXIS 82, at *14 (N.C. Super. Ct. Aug. 13, 2018) (denying offensive summary

judgment due to need for jury to “apply a reasonableness standard” in claim for

breach of contract).

63. It is also undisputed that Laurie and Matt waited to demand repayment of

the loans until after the parties’ relationship began to deteriorate in October 2016—

nearly twenty years after the loans were made. (Dep. M. Bohn 44:3–24; Dep. J. Black

177:7–12.) The jury may consider this conduct as well in determining what

repayment period is reasonable under the circumstances. See Helms, 51 N.C. at 55,

275 S.E.2d at 519 (“It would hardly seem reasonable, in the context of a verbal loan, where the parties have not reached an agreement as to the length of the credit period,

to infer a term whereby large sums of cash are repayable upon demand as a matter

of law.”).

64. The Court therefore denies the Bohns’ motion for summary judgment as to

this claim.

2. Breach of Contract for Vehicles

65. The second claim for breach of contract is based on Judith’s alleged promise

to provide two vehicles for Laurie and Matt in exchange for their contributions of

labor and money to the campground. As alleged, Judith promised to buy a van for

the Bohns and also to transfer title to a camper trailer. (See Am. Compl. p.10.) Judith

moves for summary judgment, arguing that these alleged contracts run afoul of the

statute of frauds and the statute of limitations. (See Defs.’ Mem. in Supp. 5–6.)

66. In evaluating this claim, the Court is hampered by the dearth of evidence as

to the terms of the contracts and how they were formed. Take the alleged contract to

buy a van. In her deposition testimony, Laurie could not recall when Judith made

the promise to purchase the van or if anyone else was present at the time. (Dep. L.

Bohn 176:15–22.) No particular make and model of van were discussed. (Dep. L.

Bohn 176:3–14.) The time for performance is also unclear: Matt testified that the van

was promised “some day” in the future, (Dep. M. Bohn 77:9–21), and Laurie testified

that it was to be purchased “when my current van died,” (Dep. L. Bohn 178:8–20).

67. The circumstances surrounding the camper are even less clear. Laurie

denied that she is entitled to a camper. (Dep. L. Bohn 178:21–179:3.) Matt, on the other hand, testified that there is a camper already titled in his name. (Dep. M. Bohn

137:6–12.) But he does not have the title, does not know if it was ever recorded, and

has never tried to find it. (Dep. M. Bohn 137:13–19.) Based on this testimony, it is

unclear what Judith is supposed to have promised but failed to do.

68. Given the deep uncertainty as to the timing and nature of these contracts,

a reader may wonder whether there was ever “a meeting of the minds of the

contracting parties upon all essential terms and conditions.” Se. Caissons, LLC v.

Choate Constr. Co., 247 N.C. App. 104, 112, 784 S.E.2d 650, 655–56 (2016) (quoting

Quantum Corp. Funding, Ltd. v. B.H. Bryan Bldg. Co., Inc., 175 N.C. App. 483, 490,

623 S.E.2d 793, 798 (2006)). Judith did not raise this issue in her brief, however. The

Court therefore assumes, for purposes of summary judgment, that valid and

enforceable contracts exist.

69. The record also provides no basis for summary judgment on the two grounds

raised by Judith: the statute of frauds and the statute of limitations. Taking them in

reverse order, the key issue for the statute of limitations is when the limitations

period began to run. On that point, the Court is left to guess. There is no evidence

establishing when either alleged contract was made, much less when either was

breached. Judith contends in her brief that Laurie placed the contract for the van in

or around 2006, but the cited pages from Laurie’s deposition do not support that

contention. (Compare Defs.’ Mem. in Supp. 5–6, with Dep. L. Bohn 176:15–19.)

Judith has not carried her burden to show, as a matter of law, that the Bohns brought

their claim outside the three-year limitations period. 70. So too for the statute of frauds, which requires a “contract for the sale of

goods” over $500 to be in writing. N.C. Gen. Stat. § 25-2-201(1). It is by no means

clear that either of the alleged contracts is the type of “sale of goods” covered by the

statute. As best the Court can tell, the camper contract wasn’t a sale at all; it was

perhaps a contract to transfer a misplaced or unrecorded title. Likewise, Judith’s

alleged promise to purchase a van for the Bohns does not appear to be a sale of a van

from Judith to the Bohns. “Without a sale between the parties, as expressly provided

by the statute, the statute of frauds is inapplicable and cannot be asserted as a

defense to the plaintiffs’ claim.” Hering v. Haun (In re Hering), 2010 Bankr. LEXIS

3855, at *16–17 (Bankr. E.D.N.C. Oct. 28, 2010).

71. The Court denies Judith’s motion for summary judgment as to the claim for

breach of contracts related to vehicles.

I. Affirmative Defenses

72. Defendants assert several affirmative defenses, including waiver and

release, equitable estoppel, laches, statute of frauds, statute of limitations, failure to

mitigate damages, and standing. In a single paragraph, the Bohns move for summary

judgment on all of these varied defenses, asserting broadly and without citation that

“[t]here has been no evidence to support any of these affirmative defenses.” (Pls.’ Br.

in Supp. 14.) This conclusory, shotgun assertion was insufficient to carry the Bohns’

initial burden to show the absence of a genuine issue of material fact, to give

Defendants adequate notice of the supposed flaws in their defenses, or to inform the

Court of what issues are actually in dispute. It is not the Court’s role to fill in the blanks, and as a result, the Bohns’ motion for summary judgment as to Defendants’

affirmative defenses is denied. Cf. State v. Henderson, 180 N.C. 735, 736, 105 S.E.

339, 339 (1920) (“We do not consider any matter of sufficient importance for us to

consider which is not of sufficient importance to be discussed in the brief.”).

III. CONCLUSION

73. For these reasons, the Court DENIES the Bohns’ motion for partial

summary judgment.

74. The Court GRANTS in part and DENIES in part Defendants’ motion for

partial summary judgment as follows:

a. The Court GRANTS the motion as to the claims for de facto partnership,

undue influence, and equitable estoppel. These claims are DISMISSED

with prejudice.

b. The Court DENIES the motion as to the claims for breach of fiduciary

duty, declaratory judgment, accounting and receiver, breach of contract

for money owed, breach of contract for vehicles, unjust enrichment,

constructive trust, and permanent injunction. These claims shall

proceed to trial.

75. As stated in the Case Management Order, the parties shall hold a final

mediation within 60 days of this Order and Opinion. (ECF No. 25.) On or before

June 24, 2019, the parties shall advise the Court, via e-mail to the law clerk assigned

to this case, of their selected date for holding the mediation. SO ORDERED, this the 3rd day of June, 2019.

/s/ Adam M. Conrad Adam M. Conrad Special Superior Court Judge for Complex Business Cases