IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-725
Filed 5 March 2024
Wake County, No. 19CVS8664
MIKE CAUSEY, COMMISSIONER OF INSURANCE OF NORTH CAROLINA, Petitioner,
v.
SOUTHLAND NATIONAL INSURANCE CORPORATION, SOUTHLAND NATIONAL REINSURANCE CORPORATION, BANKERS LIFE INSURANCE COMPANY, COLORADO BANKERS LIFE INSURANCE COMPANY, North Carolina Domiciled Insurance Companies, Respondents.
Appeal by intervenor-appellant from orders entered 30 December 2022 by
Judge A. Graham Shirley II in Wake County Superior Court. Heard in the Court of
Appeals 23 January 2024.
Attorney General Joshua H. Stein, by Deputy Solicitor General James W. Doggett, Special Deputy Attorney General Daniel S. Johnson, and Special Deputy Attorney General M. Denise Stanford, for petitioner-appellee.
Williams Mullen, by Wes J. Camden, Caitlin M. Poe, and Lauren E. Fussell, for respondents-appellees.
Fox Rothschild LLP, by Matthew Nis Leerberg and Condon Tobin Sladek Thornton Nerenberg PLLC, by Aaron Z. Tobin, for intervenor-appellant.
FLOOD, Judge.
Intervenor-Appellant GBIG Holdings, LLC (“GBIG”) appeals from two orders
entered 30 December 2022—an order denying GBIG’s motion for a continuance to
allow discovery and an order of liquidation against Bankers Life Insurance Company CAUSEY V. SOUTHLAND NAT’L INS. CORP.
Opinion of the Court
(“BLIC”) and Colorado Bankers Life Insurance Company (“CBLIC”). Our review of
the Record reveals that GBIG should not have been allowed to intervene;
nevertheless, the trial court did not err in denying GBIG’s motion to continue and
ordering BLIC and CBLIC into liquidation. Accordingly, we modify the trial court’s
orders to clarify GBIG is not a proper party and affirm.
I. Facts and Procedural Background
The case before us is one of many cases stemming from the insolvency of
several insurance companies owned by Greg Lindberg (“Lindberg”). Here, we provide
only the facts pertinent to this appeal and those relevant facts that have not
previously been addressed by this Court in Southland National Insurance
Corporation v. Lindberg, 289 N.C. App. 378, 889 S.E.2d 512 (2023).
Respondents-Appellees Southland National Insurance Corporation
(“Southland”), BLIC, and CBLIC are licensed domestic insurers, owned by GBIG.
GBIG is wholly owned by Lindberg. On 18 October 2018, Southland, BLIC, and
CBLIC consented to be placed under administrative supervision, following concerns
from Petitioner-Appellee Commissioner of Insurance Mike Causey (“Causey”), that
the companies would be financially unable to meet outstanding obligations to their
policyholders. During the period of administrative supervision, Causey determined
that under the current investment structure, Southland, BLIC, and CBLIC lacked
the liquidity to pay their policyholders and ultimately placed the companies into
rehabilitation.
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The Southland Liquidation Hearing
After over two years of supervising Southland, on 21 March 2021, Causey filed
a petition for liquidation due to Southland’s insolvency. On 14 April 2021, GBIG filed
an objection to the petition for liquidation as well as a motion for continuance to allow
for discovery, prompting Causey to file a response in which he asserted GBIG lacked
standing under N.C. Gen. Stat. § 58-30-95 (2021) to bring an objection to the petition.
On 16 April 2021, the petition for liquidation of Southland was heard and the trial
court, in granting GBIG’s motion to intervene, stated, “I do believe [GBIG] ha[s] the
right to contest [the petition].” Following the hearing, an order (the “Southland
Order”) was entered, in which the trial court found:
10. [Causey] contends that GBIG lacks standing to defend against this petition because [he] seeks a liquidation order based solely on 58-30-11—which does not mention any right to defend. However, the immediately preceding statute, Section 58-30-95, explicitly requires the [c]ourt to “permit the directors of the insurer to take such action as are reasonably necessary to defend against the petition [for liquidation],” at least for petitions arising under that section. The [c]ourt finds it unnecessary to decide whether there is a statutory right to defend against a petition arising solely under 58-30-100, because the [c]ourt will exercise its “broad supervisory power” to allow GBIG to contest whether [Southland] is insolvent under the statutory definition of insolvency[.]
11. [Causey] contends that only “the directors of the insurer,” may defend against the petition under Section 58- 30-95(a) and therefore, GBIG does not have standing to defend against this petition. GBIG, in contrast, contends that under these circumstances, where [Southland] no longer has active directors, the statutory right of defense
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vests in GBIG as [Southland’s] sole shareholder and owner. [Causey] notes that as Rehabilitator he possesses the statutory power to exercise and enforce all rights, remedies, and powers of the sole shareholder, under Section 58-30-85 (a)(19). Again, the [c]ourt finds it unnecessary to decide whether GBIG may defend against the petition as a matter of statutory right, because the [c]ourt will instead invoke its broad supervisory power to allow GBIG to contest whether [Southland] is insolvent under the statutory definition of insolvency.
Ultimately, as to the Southland liquidation petition, the trial court concluded
that GBIG would be allowed to “contest whether [Southland] [was] insolvent under
the statutory definition of insolvency” and may conduct limited prehearing discovery,
but neglected to rule specifically on whether GBIG had standing to intervene.
On 10 June 2021, Southland, Causey, and GBIG jointly motioned to stay the
liquidation proceedings, which the trial court granted, allowing the parties to
reschedule for a later date.
A few months later, on 3 November 2021, GBIG filed a motion seeking
authority from the trial court to propose a plan of rehabilitation for Southland, BLIC,
and CBLIC. In its order denying GBIG’s motion, the trial court found:
Without specifically ruling on the standing issue, this [c]ourt noted that N.C. Gen. Stat. § 58-30-95 permits directors of the insurer to take action to defend against a liquidation petition, and therefore found it unnecessary to determine whether GBIG [ ] had standing to file an objection. Instead this [c]ourt exercised “broad supervisory power” to allow GBIG [ ] to contest whether [Southland] is insolvent as defined by statute for the purpose of hearing on that specific determination.
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The BLIC and CBLIC Liquidation Hearing
Nearly one year later, on 1 November 2022, Causey filed a verified petition for
an order of liquidation against BLIC and CBLIC, asserting that the companies were
insolvent within the meaning of Chapter 58 of the North Carolina General Statutes.
At the time of filing, BLIC’s assets of $253,163,012 did not exceed its liabilities of
$345,062,743, and CBLIC’s assets of $1,369,052,180 did not exceed its liabilities of
$2,508,953,520. Two weeks later, GBIG filed an objection to the petition for
liquidation as well as a motion for continuance to allow discovery, asserting that, as
the “parent company” of both BLIC and CBLIC, it should be allowed to present
evidence showing neither company was insolvent.
On 21 November 2022, a hearing on GBIG’s motion for a continuance to allow
for discovery came on, during which the trial court engaged in a lengthy colloquy with
counsel for GBIG regarding GBIG’s participation in the matter. When asked where
the directors of BLIC and CBLIC were, counsel for GBIG stated, “[w]ell, Your Honor,
the directors were in effect disbanded when they filed liquidation.” Unconvinced, the
trial court then asked counsel for GBIG to point to a statute that disbands directors
of an insurer upon filing of liquidation, which counsel for GBIG could not do.
Eventually, counsel for GBIG conceded that, at the time the liquidation petition was
filed, both BLIC and CBLIC had directors; therefore, those directors could be in court
to defend against the petition.
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The trial court continued questioning counsel for GBIG about whether the
Rules of Civil Procedure governed this action, asking specifically if “every petition
filed in Superior Court [was] governed by the Rules of Civil Procedure,” to which
counsel for GBIG responded, “I don’t know the answer to that question.” Answering
its own question, the trial court clarified by stating that not all petitions in superior
court are governed by the Rules of Civil Procedure. The trial court went on to explain
that “the Legislature has recognized that in a liquidation proceeding, [] the directors
who owe a fiduciary duty can come in and argue against [the petition],” and again
asked, “so why aren’t the directors here?” The following exchange then occurred:
[COUNSEL]: My understanding is that the board, there were some directors that were in place at the time. Then the corporations were placed into rehabilitation. Those directors, I believe some of them, they’ve done nothing essentially since that time and would be surprised to know that they have any obligations at this time.
THE COURT: Well, who are those directors?
[COUNSEL]: I don’t know their names right off the top of my head.
THE COURT: You have done absolutely no investigation[.]
After the lengthy back-and-forth, the trial court ultimately concluded from the
bench that “when it comes to defending against an order of liquidation, the statute
only authorizes directors to do that.” The Court further stated that it presumes the
Legislature used the word “directors” to mean “directors, not anyone else.”
Apparently dissatisfied with GBIG’s lack of knowledge regarding the whereabouts of
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BLIC’s and CBLIC’s directors, the trial court stated “GBIG has made no – apparently
no investigation into” where the directors were or who they were. Ultimately, with
respect to the BLIC and CLBIC liquidation petitions, the trial court found that “GBIG
does not have standing.”
Upon holding from the bench that GBIG lacked standing, counsel for GBIG
motioned to intervene “both as a matter of right under 24(a) and under permissive
intervention under 24(b).” After allowing GBIG’s motion, the trial court added, “[y]ou
should have made your motion to intervene some time ago.”
On 30 December 2022, following the hearing, the trial court entered two
orders—one denying GBIG’s motion for continuance to allow for discovery (the
“Continuance Order”) and another, ordering BLIC and CBLIC into liquidation (the
“Liquidation Order”). In the Continuance Order, the trial court stated its findings:
110. The Court finds the General Assembly’s distinction between shareholders and directors is intentional and that the General Assembly conferred no right upon the shareholders of an insurer to defend against a petition for an order of liquidation. The absolute right to defend against a petition to liquidate rest solely with the insurer’s board of directors. Unless otherwise ordered by the [c]ourt, the shareholders have no such right to defend against a petition for an order of liquidation and may only defend against such action as the [c]ourt in its discretion allows.
....
122. To the extent that there is any ambiguity in the [c]ourt’s prior rulings on this issue, for the absence of all doubt, the [c]ourt hereby amends such interlocutory orders pursuant to its inherent authority to conform to this Order
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holding that GBIG does not have a statutory right to oppose the liquidation of [BLIC and CBLIC].
158. At the hearing, GBIG orally moved to intervene in this matter. In its discretion, the [c]ourt grants GBIG’s oral [m]otion to [i]ntervene in this matter. The [c]ourt does not base its ruling on any finding or conclusion that GBIG has carried its burden under Rule 24(a) or (b) of the North Carolina Rules of Civil Procedure assuming that the Rules of Civil Procedure [a]pply. Rather, the [c]ourt allows the intervention in its discretion under Article 30 of Chapter 58 of the North Carolina General Statutes to administer the rehabilitation and liquidation proceedings.
Ultimately, the trial court concluded the Continuance Order by stating that,
in its discretion, it would grant GBIG’s motion to intervene “as a non-party in this
matter for the purposes of informing the [c]ourt through argument and evidence at
the hearing on the petition for liquidation.” The trial court echoed that statement
again in the Liquidation Order, finding: “At the hearing on [the Liquidation Petition]
this [c]ourt ruled that GBIG [ ], the sole shareholder of BLIC and CBL[IC] did not
have a statutory right to object to or contest the Verified Petition. Nevertheless, the
[c]ourt granted GBIG’s oral motion to intervene in the action.”
GBIG filed timely notice of appeal from both the Continuance Order and
Liquidation Order.
II. Jurisdiction
The Continuance Order, while interlocutory, is immediately appealable under
N.C. Gen. Stat. § 1-278, which provides this Court may “review any intermediate
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order involving the merits and necessarily affecting the judgment.” N.C. Gen. Stat.
§ 1-278 (2023). The Liquidation Order constitutes a final judgment in the liquidation
proceedings against BLIC and CBLIC and is therefore appealable under N.C. Gen.
Stat. § 7A-27(b)(1) (2023).
III. Analysis
On appeal, GBIG argues the trial court erred in denying its motion for a
continuance to allow for discovery and ordering BLIC and CBLIC into liquidation.
As a threshold issue, however, we must first consider whether the trial court properly
exercised “broad discretionary power” when it allowed GBIG to intervene as a non-
party.
A. GBIG’s Participation in the BLIC and CBLIC Liquidation Hearing
Causey argues GBIG lacks standing to intervene against the liquidation
petition because Chapter 58, Article 30 expressly states that the trial court shall
grant “the directors of the insurer to take such action as are reasonably necessary to
defend against the petition[.]” On the other hand, GBIG argues it should be allowed
to intervene because the trial court had allowed it to intervene in the past, and it has
a valuable property interest in both BLIC and CBLIC.
When a trial court’s discretionary ruling rests on the interpretation of a
statute, constructions of those statutes are reviewed de novo. Myers v. Myers, 269
N.C. App. 237, 241, 837 S.E.2d 443, 448 (2020). Rule 1 of the North Carolina Rules
of Civil Procedure applies “in all actions and proceedings of a civil nature except when
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a differing procedure is prescribed by statute.” N.C. Gen. Stat. § 1A-1, Rule 1 (2023).
Our Supreme Court in In re Ernst & Young, LLP held, however, that when “the
legislature has prescribed specialized procedures to govern a particular proceeding,”
the Rules of Civil Procedure “do not apply.” 363 N.C. 612, 616, 684 S.E.2d 151, 154
(2009). Finally, “[w]here the language of a statute is clear and unambiguous, there
is no room for judicial construction and the courts must construe [it] using its plain
meaning.” Burgess v. Your House of Raleigh Inc., 326 N.C. 205, 209, 388 S.E.2d 134,
136 (1990).
In In re Ernst & Young, our Supreme Court considered facts very similar to
the case at bar. Ernst & Young sold several tax shelters to Wal-Mart and then helped
Wal-Mart restructure to implement the tax shelters. 363 N.C. at 613, 684 S.E.2d at
152. Pursuant to N.C. Gen. Stat. § 105-258(a)(2), the Secretary of Revenue elected to
request Ernst & Young provide testimony and documents relating to Wal-Mart’s tax
shelters. Id. at 613, 684 S.E.2d at 152. Ernst & Young only partially complied,
prompting the Secretary to pursue a court order compelling it to comply with the
summons. Id. at 613, 684 S.E.2d at 152. Wal-Mart then filed both a motion to
intervene and a motion to dismiss. Id. at 614, 684 S.E.2d at 153. In its motion to
intervene, Wal-Mart claimed intervention was “the only way to assert its due process
rights under the North Carolina and United States Constitutions.” Id. at 614–15,
684 S.E.2d at 153. In its motion to dismiss, Wal-Mart claimed the case should be
dismissed for failure to comply with the North Carolina Rules of Civil Procedure’s
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service requirements. Id. at 614, 684 S.E.2d at 153. The trial court allowed the
motion to intervene but denied the motion to dismiss.
Upon review, our Supreme Court considered, inter alia, whether the precise
language of N.C. Gen. Stat. § 105-258(a) required the Secretary of Revenue to initiate
“a civil action as defined in the General Statutes governing civil procedure.” Id. at
617, 684 S.E.2d at 154. Ultimately, the Supreme Court held that, because the
Secretary of Revenue’s initial inquiry under the statute did not explicitly involve
filing a civil complaint or initiating a civil action, the statute was a “self-contained,
specialized procedure, supplant[ing] the Rules of Civil Procedure.” Id. at 617, 684
S.E.2d at 155. The Supreme Court further concluded that “although the Court of
Appeals erred in holding to the contrary, it correctly affirmed the order of the trial
court in denying Wal-Mart’s motion to dismiss.” Id. at 620, 684 S.E.2d at 156.
Ultimately, the Supreme Court modified and affirmed the decision of this Court. Id.
at 620, 684 S.E.2d at 156.
Subsequently, this Court in In re Simmons cited to In re Ernst & Young to
support the conclusion that “[a]lthough our North Carolina Rules of Civil Procedure
typically ‘apply in all actions and proceedings of a civil nature[,]’ the Rules do not
apply ‘when a differing procedure is prescribed by statute.’” __ N.C. App. __, __, 893
S.E.2d 271, 273 (2023) (alternation in original) (quoting N.C. Gen. Stat. § 1A-1 Rule
1). In In re Simmons, this Court considered whether the trial court erred in denying
a motion to set aside an order allowing a foreclosure sale. Id. at __, 893 S.E.2d at
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272. The grantors argued that the trial court erred in denying their motion pursuant
to Rule 60(b) of the North Carolina Rules of Civil Procedure. Id. at __, 893 S.E.2d at
272. Ultimately, this Court held that the North Carolina Rules of Civil Procedure do
not apply to foreclosure proceedings because the rules were not “specifically engrafted
into the [foreclosure] statute.” Id. at __, 893 S.E.2d at 274.
Following the precedent set in In re Ernst & Young and In re Simmons, we
note that when a statute describes a “proceeding of a civil nature with its own
specialized procedure[,]” that statute then “supplants the Rules of Civil Procedure.”
In re Ernst & Young, 363 N.C. at 620, 684 S.E.2d at 156. Further, following this
Court’s holding in In re Simmons, the North Carolina Rules of Civil Procedure apply
only when specifically “engrafted” into a statute that describes a proceeding with its
own specialized procedure. See In re Simmons, N.C. App. at ___, 893 S.E.2d at 274.
Here, applying the same tenets of statutory construction, the clear and
unambiguous language of N.C. Gen. Stat. § 58-30-95 states that “[t]he [c]ourt shall
permit the directors of the insurer to take such actions as are reasonably necessary
to defend against the petition[.]” N.C. Gen. Stat. § 58-30-95. Similar to the optional
authority given to the Secretary of Revenue to request documents and testimony in
In re Ernst & Young, here, the statute does not explicitly require the directors to
initiate a civil action or file a complaint. Rather, the statute only confers upon the
directors of an insurer the option to take necessary actions to defend against a
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liquidation petition. See N.C. Gen. Stat. § 58-30-95. Notably absent from the statute
is any directive that directors shall file a civil complaint.
For those reasons, we conclude N.C. Gen. Stat. § 58-30-95 is a proceeding of a
civil nature with its own specialized procedure, and therefore, it supplants the North
Carolina Rules of Civil Procedure. See In re Ernst & Young, 363 N.C. at 620, 684
S.E.2d at 156. Having concluded that Section 58-30-95 supplants the Rules of Civil
Procedure, it follows that the procedure for defending against a liquidation petition
is contained in the express, unambiguous language of the statute, which grants
directors, and directors alone, the power to take necessary actions to defend against
liquidation petitions. To hold otherwise would eviscerate the thrust of our
Legislature’s intent in enacting N.C. Gen. Stat. § 58-30-95 by allowing any interested
parties to participate in liquidation proceedings by asserting standing under N.C. R.
Civ. P. 24(a) (allowing a non-party to intervene of right when they have an interest
in the property or transaction) or N.C. R. Civ. P. 24(b) (allowing for permissive non-
party intervention when the non-party’s “claim or defense and the main action have
a question of law or fact in common”).
Where GBIG is not a director of either BLIC or CBLIC, non-party GBIG did
not have standing to intervene, nor should it have been allowed to intervene in the
liquidation proceeding simply because the trial court previously exercised its broad
discretionary power to allow it to intervene in the Southland liquidation. See N.C.
Gen. Stat. § 58-30-95.
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B. Trial Court’s Rulings on the Continuance and Liquidation Orders
Having concluded the trial court erred when it allowed GBIG’s motion to
intervene, we next consider whether the trial court nevertheless acted properly when
entering both the Continuance Order and the Liquidation Order. GBIG argues the
denial of its motion for a continuance “prevented it from having a meaningful
opportunity to defend against the liquidation petition” and therefore, the trial court
erred in denying its motion to continue and entering the liquidation order. We
disagree.
1. The Trial Court’s Denial of GBIG’s Motion to Continue
An order denying a motion for continuance is reviewed for abuse of discretion.
Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976). Under an abuse
of discretion standard, reversal is appropriate only to correct “gross abuse,” such as
where a decision “was so arbitrary that it could not have been the result of a reasoned
decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
A trial court may grant a continuance if the movants have “acted with diligence
and in good faith[.]” May v. City of Durham, 136 N.C. App. 578, 581, 525 S.E.2d 223,
227 (2000). Accordingly, a movant cannot “use [its own] self-imposed delay to support
a request for a continuance.” Marcoin, Inc. v. McDaniel, 70 N.C. App. 498, 508, 320
S.E.2d 892, 899 (1984).
Here, the trial court correctly determined that GBIG “should have made [its]
motion to intervene some time ago,” given GBIG waited two weeks after the superior
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court noticed a hearing to seek a continuance. Further, GBIG’s argument that the
denial of its motion to continue prevented it from having a meaningful opportunity to
defend against liquidation is disingenuous, given both BLIC and CBLIC had been
making detailed quarterly disclosures since being placed in rehabilitation.
Considering GBIG waited two weeks after being noticed of the upcoming
hearing to file a motion for continuance, it would appear to this Court that GBIG’s
delay was self-imposed. For that reason, the trial court’s decision to deny GBIG’s
motion can hardly be considered “so arbitrary that it could not have been the result
of a reasoned decision.” Hennis, 323 N.C. at 285, 372 S.E.2d at 527.
2. The Trial Court’s Liquidation Order
Conclusions of law are reviewed de novo on appeal. See State v. Biber, 365 N.C.
162, 168, 712 S.E.2d 874, 878 (2011). “‘Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment’ for that of the lower
tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)
(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316,
319 (2003)). Under N.C. Gen. Stat. § 58-30-10(13), an insurer is considered insolvent
when it is unable to pay its obligations when they are due or if “its admitted assets
do not exceed its liabilities[.]” N.C. Gen. Stat. § 58-30-10(13) (2023).
The Record is replete with evidence to support the trial court’s conclusion that
both BLIC and CBLIC were insolvent and “in such condition as to render the
continuance of its business hazardous, financially, or otherwise, to its
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policyholders[.]” At the time of filing the liquidation petition, BLIC’s assets of
$253,163,012 did not exceed its liabilities of $345,062,743, and CBLIC’s assets of
$1,369,052,180 did not exceed its liabilities of $2,508,953,520, rendering them both
insolvent under N.C. Gen. Stat. § 58-30-10(13). In ordering both BLIC and CBLIC
into liquidation, the trial court focused on Article 30’s purpose—to protect the
interests of thousands of policyholders in the State of North Carolina. See N.C. Gen.
Stat. § 50-30-1(c) (2023).
For the aforementioned reasons, we affirm both the Continuance Order and
the Liquidation Order and modify each order to clarify that GBIG should not have
been allowed to intervene pursuant to N.C. Gen. Stat. § 58-30-95 or through the
exercise of the trial court’s broad discretionary power. See In re Ernst & Young, LLP,
363 N.C. at 620, 684 S.E.2d at 156 (concluding that, despite this Court’s incorrect
conclusion that the Rules of Civil Procedure superseded a statutory requirement,
nevertheless the order should be modified, yet affirmed).
IV. Conclusion
In conclusion, we hold that as a shareholder, GBIG should not have been
allowed to intervene and defend against the liquidation petition, as only a company’s
directors are permitted to intervene to defend under N.C. Gen. Stat. § 58-30-95.
Where the trial court allowed GBIG to participate, we modify both the Continuance
Order and the Liquidation Order to clarify that GBIG is not a proper party to the
action and affirm.
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MODIFIED AND AFFIRMED.
Judges ARROWOOD and HAMPSON concur.
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