Cherry Cmty. Org. v. Sellars

• Court: Supreme Court of North Carolina
• Decided: May 6, 2022
• Docket: 141PA20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-62

No. 141PA20

Filed 6 May 2022

THE CHERRY COMMUNITY ORGANIZATION, a North Carolina non-profit corporation, and STONEHUNT, LLC

v. STONEY D. SELLARS, MIDTOWN AREA PARTNERS HOLDINGS, LLC, and MIDTOWN AREA PARTNERS II, LLC

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished opinion of the Court of Appeals, No. COA19-695, 2020 WL 774020 (N.C.

Ct. App. Feb. 18, 2020), affirming a judgment entered on 31 December 2018 by Judge

Eric L. Levinson in Superior Court, Mecklenburg County. Heard in the Supreme

Court on 4 October 2021.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Scott A. Miskimon, Kerry A. Shad, and J. Mitchell Armbruster, for plaintiff-appellant Cherry Community Organization.

Alexander Ricks PLLC, by Roy H. Michaux Jr. and Matthew T. Houston, for defendant-appellees Midtown Area Partners Holdings, LLC and Midtown Area Partners II, LLC.

MORGAN, Justice.

¶1 This Court allowed plaintiff’s Petition for Discretionary Review in order to

examine a unanimous opinion of the Court of Appeals which affirmed a trial court’s

judgment dismissing plaintiff’s lawsuit which lodged claims against defendants CHERRY CMTY. ORG. V. SELLARS

Opinion of the Court

under North Carolina’s Uniform Voidable Transactions Act (UVTA). The trial court

concluded, and the Court of Appeals agreed, that defendants were good faith

purchasers for value and thus possessed a legitimate defense against plaintiff’s

claims under the UVTA. However, the trial court’s unchallenged findings of fact

require the application of common law agency principles which operate to remove the

protection of the good faith purchaser defense from defendants. Therefore, the

decision of the Court of Appeals is reversed in part, and the judgment of the Superior

Court, Mecklenburg County, entered on 31 December 2018 in which it dismissed

plaintiff’s UVTA claims against defendants is vacated and this case remanded for

further proceedings in accordance with this opinion.

I. Factual and Procedural Background

¶2 Plaintiff The Cherry Community Organization is a North Carolina nonprofit

entity dedicated to the preservation and enhancement of an area of Charlotte known

as Cherry, a historic Black, working-class neighborhood near the city’s uptown

district. Plaintiff organization is comprised of occupants of properties within the

Cherry community and leases affordable housing units which plaintiff owns to low-

income, disabled, and senior residents, some of whom have lived there for

generations. In furtherance of this mission, plaintiff began contracting with an

individual named Stoney Sellars and his real estate development company

StoneHunt, LLC in 2004 in order to develop affordable housing units on several acres CHERRY CMTY. ORG. V. SELLARS

of land which plaintiff owned in the Cherry neighborhood. Under the ensuing

contracts, StoneHunt obtained title to eight acres of prime real estate owned by

plaintiff near the center of Charlotte at below-market rates in exchange for a promise

that StoneHunt would develop certain parcels of the land into housing units for low-

income, disabled, and senior occupants. However, StoneHunt failed to build all of the

affordable housing units which it pledged, instead maneuvering to sell most of the

land conveyed to StoneHunt by plaintiff under the contract to market-rate residential

builders in May 2014 for an enormous profit. Of the land conveyed to StoneHunt by

plaintiff under the original contract, StoneHunt retained only a half-acre parcel.

Adjacent to this half-acre parcel was another quarter-acre parcel which StoneHunt

also owned but that was otherwise unrelated to StoneHunt’s unfulfilled contractual

obligations to plaintiff. Together, these two parcels are identified in this matter as

the “subject property.”

¶3 Defendants Midtown Area Partners Holdings, LLC and Midtown Area

Partners II, LLC (MAP) are real estate development businesses which share identical

ownership. Defendants’ principals are sophisticated, informed real property and

financial investment professionals who have heightened knowledge about the

marketplace and land values.1 One of defendants’ principals approached Sellars twice

1 In addressing this case in a manner to promote clarity, the term “defendants” collectively refers to the two MAP entities which are named parties in this action as well as their respective principals who are identical, yet unnamed in the underlying lawsuit. CHERRY CMTY. ORG. V. SELLARS

during the 2012–2013 time period in order to probe StoneHunt’s willingness to sell

the subject property to MAP. Defendants’ representative explained that MAP owned

adjacent parcels to the subject property and remarked that it did not appear that

StoneHunt was in the process of developing the land at issue despite a sign from 2008

which was situated on the property stating, “Town Homes Coming.” Sellars denied

the occurrence of such overtures. Defendants’ agent then proposed that StoneHunt

and MAP work together in developing the subject property which StoneHunt

controlled and the adjacent parcels that defendants owned. The two entities, through

their respective actors, entered into an operating agreement to develop these

contiguous properties into a $50 million mixed-use project in March 2014. Extending

from the creation of this arrangement until its termination, defendants and

StoneHunt were the principals of a general partnership engaged in a joint venture

for the development of the mixed-use project, with defendants enjoying an insider

status to StoneHunt’s dealings with the subject property.

¶4 Having discovered StoneHunt’s breach of its contract with plaintiff to construct

the affordable housing units in a collaborative approach on the acreage conveyed by

plaintiff to StoneHunt in the 2004 conveyance, plaintiff filed suit against StoneHunt

and its principal Sellars on 10 September 2015 for breach of contract and violations

of the North Carolina Unfair and Deceptive Trade Practices Act (the first lawsuit).

The first lawsuit sought monetary damages and the recovery of title to the portion of CHERRY CMTY. ORG. V. SELLARS

the subject property which plaintiff had deeded to StoneHunt under the 2004 contract

and was accompanied by a Notice of Lis Pendens that was filed in the county clerk’s

office the same day concerning this part of the subject property. Plaintiff delivered

copies of the complaint and Notice of Lis Pendens simultaneously to defendants’

attorney. Defendants contemplated the potential effects which the first lawsuit could

have on the viability of the joint project of defendants and StoneHunt, leading to

communications with Sellars and StoneHunt about the authority of plaintiff’s board

members to prosecute the first lawsuit, StoneHunt’s legal strategy in countering

plaintiff’s claims, and the financial impact on defendants’ and StoneHunt’s joint

venture as a result of the Notice of Lis Pendens. Defendants were not involved

otherwise with StoneHunt’s defense of the first lawsuit. The first lawsuit was

dismissed in February 2016 by order of the trial court pursuant to Rule 12(b)(6) of

the North Carolina Rules of Civil Procedure and the Notice of Lis Pendens was

cancelled by another order of the trial court in May 2016. Plaintiff timely appealed

the trial court’s orders which, taken together, effectively halted the first lawsuit.

¶5 During the pendency of plaintiff’s appeal to the Court of Appeals and at the

behest of StoneHunt, one of defendants’ principals submitted to the lower appellate

court an affidavit in opposition to plaintiff’s appeal, lamenting that the development

of the subject property would “be delayed and thus damaged by a cloud on the title to

two of the StoneHunt parcels” due to the Notice of Lis Pendens filed by plaintiff. On CHERRY CMTY. ORG. V. SELLARS

17 June 2016—approximately one week after the affidavit—plaintiff’s counsel sent a

letter to defendants’ counsel which expressed confidence that the Court of Appeals

would reverse the trial court’s dismissal of the first lawsuit and the trial court’s

cancellation of the Notice of Lis Pendens, and reminded defendants that litigation

against StoneHunt was still pending, thus putting title to the subject property “at

issue.” The letter concluded with an admonition from plaintiff’s counsel that if

StoneHunt and defendants continued with plans to develop or convey the subject

property, they did so “strictly at their own risk and peril.” A few months later, in

September 2016, although StoneHunt had represented the subject property to be

worth $2.5 million, nevertheless the real estate development company offered to sell

the subject property to defendants outright for $1.1 million. Sellars explained that

this sudden shift in his company StoneHunt’s involvement with the subject property

and the accompanying mixed-use project was inspired by Sellars’s desire to spend

more time looking after his family and growing information technology business, even

though Sellars’s continued involvement with the multi-use development would have

yielded far greater monies than a direct sale to defendants without any substantial

work on Sellars’s part. The following week, notwithstanding defendants’ belief that

the value of the subject property rested somewhere between $600,000 and $800,000,

defendants orally agreed to purchase the subject property for StoneHunt’s offering

price of $1.1 million but on different terms than those offered by StoneHunt. CHERRY CMTY. ORG. V. SELLARS

¶6 In late October 2016, plaintiff’s counsel sent defendants’ counsel a calculation

of damages totaling $1,694,000 which plaintiff reasonably expected to obtain in an

eventual judgment against StoneHunt—not including interest, attorney’s fees, and

potential treble damages—in the event that plaintiff prevailed in its lawsuit. The oral

arguments in plaintiff’s appeal were presented in the Court of Appeals on 28

November 2016. On the following day, in recognizing that the Court of Appeals would

possibly issue an opinion in favor of plaintiff and potentially reinstate the first

lawsuit, StoneHunt’s counsel sent an electronic mail to defendants explaining that

they should expect the Court of Appeals decision “fairly quickly” and advising

“everyone to try to get this done as soon as possible,” referring to the completion of

the sale of the subject property which had yet to be reduced to writing.

¶7 Based upon a mutual trust established through the parties’ relationship as

business partners, StoneHunt and defendants agreed to fully conceal their pending

land transaction until it was too late for plaintiff to attempt to prevent the sale.

Instead of placing the subject property on the open market, StoneHunt and

defendants agreed to an insider sale, wherein the availability of the subject property

to be purchased from StoneHunt would not be publicized and defendants’ knowledge

of the land’s availability for purchase was due to their special relationship with

StoneHunt. There was no appraisal of the land’s value which was performed, and the

parties did not negotiate about the transaction price. On 8 December 2016—nine days CHERRY CMTY. ORG. V. SELLARS

after the electronic mail correspondence which StoneHunt’s counsel sent to

defendants which advised that the subject property transfer needed to be “done as

soon as possible” lest an unfavorable ruling from the Court of Appeals on plaintiff’s

appeal of the first lawsuit erect a formidable barrier to the ability to consummate the

land transaction involving the subject property—StoneHunt and defendants signed

a contract for the sale of the subject property (the purchase contract) through their

respective agents, with Sellars executing the contract on StoneHunt’s behalf. The

purchase contract included a provision that, because of certain circumstances,

defendants were “not willing to pay full market value” for the subject property. After

multiple amendments, the final terms of the purchase contract provided that

StoneHunt would disclose to defendants any filings which it already had, or would

receive, from plaintiff in the continuing first lawsuit, and that the joint venture

between StoneHunt and defendants would be dissolved contemporaneous with the

delivery of a deed to the subject property by StoneHunt to defendants. The purchase

contract further provided that, in light of the first lawsuit, and in order to encourage

the resolution of the “differences” between plaintiff and StoneHunt, defendants would

pay $200,000 of the purchase price at closing and issue a promissory note for the

remaining $900,000 which would be payable one year later. There was also a

“gentlemen’s agreement” between defendants and StoneHunt that there would be a

“principal pay down” of $200,000 against the $900,000 promissory note upon a CHERRY CMTY. ORG. V. SELLARS

dismissal of plaintiff’s lis pendens appeal. This term was excluded from the written

purchase contract because defendants’ counsel feared that it would be discoverable

and defendants “didn’t want to get caught up in the litigation.”

¶8 On 30 December 2016, the Court of Appeals issued an opinion reversing the

trial court’s dismissal of plaintiff’s first lawsuit for StoneHunt’s alleged breach of

contract and alleged violation of the Unfair or Deceptive Trade Practices Act

(UDTPA). Having reinstated plaintiff’s first lawsuit, the Court of Appeals dismissed

plaintiff’s appeal of the trial court’s cancellation of the Notice of Lis Pendens as

interlocutory. Therefore, as of January 2017, defendants knew that plaintiff’s first

lawsuit had been revived, defendants and StoneHunt had not yet consummated the

proposed conveyance of the subject property, and the Notice of Lis Pendens clouding

a portion of the subject property had not been reinstated. Irrespective of these

circumstances, on 2 February 2017, StoneHunt and defendants formally closed their

real estate transaction, with StoneHunt signing and delivering a deed to defendants

which transferred ownership of the subject property to defendants in exchange for

the $200,000 down payment and the $900,000 promissory note. On the same day the

transaction closed, StoneHunt and defendants signed an agreement which dissolved

the joint venture between them. StoneHunt then divided the $200,000 which it

received at closing between StoneHunt’s counsel for outstanding legal fees and

Sellars for an amount owed by StoneHunt to him, leaving the $900,000 promissory CHERRY CMTY. ORG. V. SELLARS

note and a small amount of funds as StoneHunt’s sole remaining assets.

¶9 Upon learning of the insider sale of the subject property from StoneHunt to

defendants, plaintiff initiated legal action against defendants on 30 August 2017

seeking, among other things, avoidance of the transfer of the subject property and the

accompanying sale proceeds, as well as a judgment against defendants in the amount

of the value of the subject property at the time of its transfer by StoneHunt for

defendants’ alleged violation of the UVTA2 (the second lawsuit). See N.C.G.S. §§ 39-

23.1 to 39-23.12 (2021). While taking the position that StoneHunt had transferred

title to the subject property to defendants in an effort to defraud plaintiff of an

opportunity to reach this asset as a creditor, plaintiff asserted in its complaint that

defendants were not good faith purchasers for value of the subject property, and

therefore defendants could not claim the protection of the UVTA which is afforded to

good faith transferees. Following a lengthy jury trial in the first lawsuit which

resulted in a verdict for plaintiff, StoneHunt and plaintiff entered into a consent

judgment by which plaintiff would be entitled to recover from StoneHunt’s

bankruptcy estate over $7 million in damages, interest, and attorney’s fees.3

2 Prior to 1 October 2015, the UVTA was known as the Uniform Fraudulent Transfer Act and is mentioned as the Uniform Fraudulent Transfer Act in plaintiff’s verified complaint despite the complaint being filed subsequent to the law’s name change. See N.C.G.S. § 39- 23.12 (2021). 3 StoneHunt filed for Chapter 11 bankruptcy in the Western District of North Carolina

on 29 August 2018. CHERRY CMTY. ORG. V. SELLARS

¶ 10 On 21 May 2018, almost nine months after the filing of the original complaint,

plaintiff filed a motion to amend its complaint against defendant Midtown Area

Partners Holdings, LLC in order to add a claim under the UDTPA found in Chapter

75 of the North Carolina General Statutes. Concurrently, plaintiff amended its

complaint against defendant Midtown Area Partners II, LLC as a matter of right to

include a claim under the UDTPA. The trial court denied plaintiff’s motion to amend

its complaint against Midtown Area Partners Holdings, LLC on 19 July 2018,

concluding that there had “been undue delay with respect to pursuing this claim.” A

nine-day bench trial in plaintiff’s second lawsuit concluded on 30 July 2018.

¶ 11 The trial court entered a judgment dismissing plaintiff’s second lawsuit,

including plaintiff’s UVTA claims against both defendant’s and plaintiff’s singular

UDTPA claim against Midtown Area Partners II, LLC, on 31 December 2018. In its

judgment, the trial court included extensive, expansive findings of fact and

conclusions of law which detailed a calculated scheme by Sellars and StoneHunt to

fraudulently liquidate the subject property and to hide the monetary proceeds from

legitimate creditors. Despite its express recognition of the width and depth of

StoneHunt’s fraud, the trial court nonetheless concluded that defendants “acted in a

commercially reasonable manner” in their acquisition of the property and “did not

engage in fraudulent activities.” The trial court further concluded that defendants

had “established and met its burden of proof to show that it was a good faith CHERRY CMTY. ORG. V. SELLARS

purchaser of the Subject Property,”4 and lamented that its decision and its

designation of defendants as good faith purchasers would likely leave plaintiff with

little recourse in collecting the $7 million owed by StoneHunt to plaintiff for

StoneHunt’s breach of their 2004 contract. The trial court dismissed plaintiff’s second

lawsuit with prejudice and declared that the Notice of Lis Pendens was ineffectual.

Plaintiff timely filed its notice of appeal from the trial court’s judgment of 31

December 2018.

¶ 12 The Court of Appeals issued a unanimous, unpublished opinion affirming the

trial court’s dismissal of plaintiff’s second lawsuit against defendants on 18 February

2020. Cherry Cmty. Org. v. Sellars, No. COA19-695, 2020 WL 774020, at *1 (N.C. Ct.

App. Feb. 18, 2020). Plaintiff petitioned this Court for discretionary review of the

Court of Appeals decision. We allowed plaintiff’s petition for discretionary review on

15 December 2020.

II. Analysis

¶ 13 Plaintiff’s request for this Court’s exercise of discretionary review asks us to

determine whether the trial court and the Court of Appeals committed an error of law

in concluding that defendants were good faith purchasers for value where defendants

4As noted in the opinion of the Court of Appeals in this case, and as further discussed below, the trial court’s conclusion to the effect that defendants were good faith purchasers of the subject property would typically be treated as a finding of fact instead of a conclusion of law, which would in turn alter the standard of review which is normally applicable to such a determination. Bledsole v. Johnson, 357 N.C. 133, 138 (2003). However, the legal standard by which the trial court reaches this finding remains a question of law. Id. CHERRY CMTY. ORG. V. SELLARS

were co-principals in a joint real estate development venture with a party which

intended to defraud creditors by way of the party’s insider conveyance to defendants

of the real estate property at issue. We conclude that defendants were imputed with

the knowledge of their co-principal’s fraudulent intent by virtue of the principal-agent

relationship which existed between the parties pursuant to common law. Therefore,

the Court of Appeals erred in affirming the trial court’s determination that

defendants were good faith purchasers of the subject property.

A. Standard of Review

¶ 14 “A trial court’s unchallenged findings of fact are presumed to be supported by

competent evidence and are binding on appeal.” Cape Fear River Watch v. N.C. Env’t

Mgmt. Comm’n, 368 N.C. 92, 99 (2015) (extraneity omitted). Otherwise, a trial court’s

findings of fact are conclusive on appeal if supported by any competent evidence. E.

Carolina Reg’l Hous. Auth. v. Loftin, 369 N.C. 8, 11 (2016). “Whether a party has

acted in good faith is a question of fact for the trier of fact, but the standard by which

the party’s conduct is to be measured is one of law.” Bledsole v. Johnson, 357 N.C.

133, 138 (2003) (citation omitted). Questions of law are reviewed de novo, and “[w]hen

considering a case on discretionary review from the Court of Appeals, we review the

decision for errors of law.” Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C.

609, 611 (2016).

B. The Uniform Voidable Transactions Act, the Good Faith Defense, and Imputation of Knowledge Under Agency Principles CHERRY CMTY. ORG. V. SELLARS

¶ 15 The UVTA “was not designed to permit those dealing in the commercial world

to obtain rights by an absence of inquiry under circumstances amounting to an

intentional closing of the eyes and mind to defects in or defenses to the transaction.”

Branch Banking & Tr. Co. v. Gill, 293 N.C. 164, 189 (1977). Instead, the UVTA

renders “voidable as to a creditor” any “transfer made or obligation incurred” when

that transfer—in this case, the conveyance of the subject property—is consummated

by a debtor with the “intent to . . . defraud any creditor of the debtor.” N.C.G.S. § 39-

23.4(a) (2021). In the present case, it is worthy of note that a creditor who is successful

in a UVTA claim may obtain avoidance of the transfer of the real property to the

extent necessary to satisfy the creditor’s claim and may recover judgment for the

value of the asset transferred against “[t]he first transferee of the asset” or “[a]n

immediate or mediate transferee of the first transferee.” N.C.G.S. §§ 39-23.7(a)(1),

39-23.8(b)(2) (2021). However, N.C.G.S. § 39-23.8(a) establishes that a transfer—such

as one made by the debtor with the intent to defraud any creditor of the debtor—is

not voidable against a transferee “that took in good faith and for a reasonably

equivalent value given the debtor.” N.C.G.S. § 39-23.8(a). Parties such as defendants

in the instant case which rely upon this statutory protection afforded to qualifying

transferees have the burden of proving the applicability of N.C.G.S. § 39-23.8(a) by a

preponderance of the evidence. N.C.G.S. § 39-23.8(g)(1), (h).

¶ 16 Here, defendants were charged with the burden to prove in plaintiff’s second CHERRY CMTY. ORG. V. SELLARS

lawsuit against them that defendants both (1) took title to the subject property in

good faith from StoneHunt, which was defendants’ co-principal in the joint real estate

development venture, and (2) bought the subject property for a reasonably equivalent

value which it gave to the debtor StoneHunt. While the trial court made some findings

of fact which were unchallenged on appeal and hence are binding on this Court, and

made still other findings of fact that are deemed conclusive for our review because

they are supported by competent evidence, nonetheless the trial court was remiss in

failing in its conclusions of law to consider the imputation of knowledge to defendants

of StoneHunt’s fraudulent conduct in StoneHunt’s cunning tactic, as plaintiff’s

debtor, in manipulatively conveying title to the acres of the subject property which

were owned by plaintiff to defendants in an effort to prevent StoneHunt’s creditors

from satisfying a potential judgment through acquisition of the subject property

themselves. In applying the statutory law and the pertinent case law to the current

matter, we determine that the facts and circumstances here, when viewed as a whole,

lead to the imputation of knowledge on the part of defendants that their business

partner StoneHunt had engaged in fraudulent activity by obfuscating plaintiff’s

access to the subject property which StoneHunt had finagled from the sole ownership

of plaintiff years ago. Consequently, defendants did not meet their burden of proof to

show that they were a good faith purchaser of the subject property and that they paid

a reasonably equivalent value for the land. In deciding as a conclusion of law that CHERRY CMTY. ORG. V. SELLARS

defendants met this statutory burden of proof, the trial court erred; subsequently, the

Court of Appeals erred in affirming the trial court’s judgment. We now reverse this

outcome.

¶ 17 Fundamentally, the doctrine of imputed knowledge establishes the rule that

“a principal is deemed to know facts known to his or her agent if they are within the

scope of the agent’s duties to the principal, unless the agent has acted adversely to

the principal.” Doctrine of Imputed Knowledge, Black’s Law Dictionary (11th ed.

2019). Under this common law doctrine, a party is charged with knowledge attributed

to a given person, especially because of the person’s legal responsibility for another’s

conduct. Imputed Knowledge, Black’s Law Dictionary (11th ed. 2019). As the Supreme

Court of the United States stated in Curtis, Collins & Holbrook Co. v. United States,

262 U.S. 215, 222–23 (1923), “[t]he general rule is that a principal is charged with

the knowledge of the agent acquired by the agent in the course of the principal’s

business.” In North Carolina, “[e]very partner is an agent of the partnership for the

purpose of its business.” N.C.G.S. § 59-39(a) (2021). The creation of a business

partnership “constitut[es] each member an agent of the others in matters

appertaining to the partnership and within the scope of its business.” Rothrock v.

Naylor, 223 N.C. 782, 786 (1944).

¶ 18 In the case before us, defendants and StoneHunt were business partners

engaged in a joint venture to develop the subject property by erecting a mixed-use CHERRY CMTY. ORG. V. SELLARS

project. As co-principals in this capitalistic endeavor, both parties in this real estate

development were recognized as agents for one another—in the statutory law under

N.C.G.S. § 59-39(a) and the case law under Rothrock—in matters which involved the

purpose and scope of the business partnership. A representative of defendants

expressly proposed to StoneHunt’s Sellars that StoneHunt and defendants combine

their respective resources to build the mixed-use project on the adjoining lands of the

subject property—in which StoneHunt held control—and neighboring parcels—in

which defendants held control. StoneHunt’s subsequent relinquishment of the subject

property was in furtherance of the purpose and scope of its business partnership with

defendants. Pursuant to the principles of this state’s statutory law regarding

elements of partnership and of the doctrine of imputed knowledge, fortified by the

aforementioned declaration of the nation’s highest court in Curtis, Collins & Holbrook

Co., defendants are charged with the knowledge of StoneHunt’s fraudulent

relinquishment of title to the subject property, as defendants are deemed to know the

facts which are known by StoneHunt regarding StoneHunt’s desire to convey the

subject property prior to the subject property being reached by plaintiff, in its capacity

as StoneHunt’s creditor, to satisfy plaintiff’s $7 million judgment against StoneHunt.

While the doctrine of imputed knowledge does not apply in the event that an agent

acts adversely to the principal’s interests, which the Supreme Court of the United

States amplified in a circumstance known as the “adverse interest” exception when CHERRY CMTY. ORG. V. SELLARS

the highest forum opined in Curtis, Collins & Holbrook Co. that the doctrine does not

apply “when the agent’s attitude is one adverse in interest to that of the principal,

because of which it cannot be inferred that the agent would communicate the facts

against his own interest to his principal,” Curtis, Collins & Holbrook Co., 262 U.S. at

223, there is no evidence in the record, nor any legal argument advanced by

defendants, that an adverse interest between StoneHunt and defendants existed

regarding their business partnership to develop the subject property in general, or

StoneHunt’s dishonest acquisition of the title to the subject property and StoneHunt’s

later fraudulent conveyance of the subject property to defendants in particular.

Therefore, the application of the doctrine of imputed knowledge, in conjunction with

the applicable statutory law and case law, remains intact to apply to defendants’

awareness of StoneHunt’s fraudulent actions in obtaining title to the subject property

which was originally owned by plaintiff.

¶ 19 In the federal case of Chrysler Credit Corporation v. Burton, 599 F. Supp. 1313

(M.D.N.C. 1984), a creditor filed a complaint against its debtor and others in an effort

to have the trial court to set aside two conveyances of real estate used as business

property because the title transfers were fraudulently made by the debtor. The debtor

“retained substantially no assets” at the time that the property was conveyed because

“the piece of land was his principal asset.” Chrysler Credit Corp., 599 F. Supp. at

1316. The federal district court, in exercising jurisdiction in this matter, applied CHERRY CMTY. ORG. V. SELLARS

North Carolina’s fraudulent conveyance law in reaching its determination. See id. at

1317. The trial court began its analysis by noting: “In a diversity case the Court

enforcing state enacted rights must apply the law of North Carolina as declared by

its legislature in a statute or by the North Carolina Supreme Court in a decision.” Id.

at 1316.

¶ 20 In recognizing that “North Carolina fraudulent conveyance law has as its

cornerstone the venerable case of Aman v. Walker, 165 N.C. 224, 81 S.E. 162 (1914),”

the federal district court stated that “[a]ccording to Aman when a conveyance is made

by a debtor for valuable consideration, it is fraudulent and may be set aside only when

the conveyance was (1) made with the intent to defraud creditors and (2) the grantee

either participated in the intent or had notice of it.” Id. at 1317 (emphasis added)

(quoting Edwards v. Nw. Bank, 39 N.C. App. 261, 269 (1979)). After citing this Court’s

decision in Arrington v. Arrington, 114 N.C. 151 (1894), as the source for the

pronouncement that “[e]ither actual or constructive notice of the grantor’s fraud is

sufficient to deny protected status to a grantee[,]” id., the trial court went on to

determine the “conveyance to be a fraudulent conveyance and therefore invalid as to

creditors.” Id. at 1321. In “[c]laiming protection under North Carolina registration

law,” a third-party banking institution’s deed of trust was deemed by the trial court

to be “protected from avoidance under fraudulent conveyance law.” Id. at 1319.

¶ 21 While not dispositive of the outcome of the instant case’s presentation of the CHERRY CMTY. ORG. V. SELLARS

fundamentally identical issues raised in Chrysler Credit Corporation, nonetheless the

federal district court’s discussion and application of our case law decisions regarding

their impact upon a debtor’s fraudulent acts regarding title to real property, the

debtor’s significant reduction in assets after the fraudulent acts which occasioned the

conveyance, the state trial court’s ability to set aside a real property conveyance

which was marked by fraud, and the status of the grantee of the real property as a

protected good faith purchaser is highly instructive and persuasive in our analysis of

this matter. The federal district court’s observation in Chrysler Credit Corporation

that the “[p]laintiff retained . . . considerably less [assets] than the requirement that

sufficient assets be retained” in leading to the tribunal’s view that “no lender would

extend credit for the amount of the existing debt with such security as the assets the

defendant . . . retained[,]” id. at 1320, is germane to our evaluation of the factor in

the present case wherein StoneHunt had divested itself of its chief financial asset in

the form of the subject property in the event that plaintiff, as StoneHunt’s creditor,

was successful in plaintiff’s lawsuit against StoneHunt. Likewise, the federal district

court’s conclusion that the grantee of the land conveyance had notice of the grantor’s

fraud so as to negate the grantee’s protected status and to invalidate the conveyance

as to creditors is pertinent to our assessment of the situation in the present case

wherein defendants claim to possess protected status as the grantee of their joint

venture business partner StoneHunt’s conveyance of the subject property in the face CHERRY CMTY. ORG. V. SELLARS

of the pending claims against StoneHunt by plaintiff as StoneHunt’s creditor.

C. Consideration of Subsection 39-23.4(b) of the General Statutes of North Carolina

¶ 22 Our determination that the trial court erred in its conclusions of law, and

subsequently that the Court of Appeals erred in affirming the trial court’s judgment

which resulted from these conclusions of law, is buttressed by this Court’s

examination of the factors which are delineated in N.C.G.S. § 39-23.4(b). While

referenced earlier, N.C.G.S. § 39-23.4(a)(1) reads in its entirety as follows:

(a) A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (1) With intent to hinder, delay, or defraud any creditor of the debtor . . . .

N.C.G.S. § 39-23.4(a) (2021).

¶ 23 As a preface to identifying thirteen factors to which, “[i]n determining intent

under subdivision (a)(1) of this section, consideration may be given, among other

factors[,]” N.C.G.S. § 39-23.4(b) lists these circumstances to be utilizable as

potentially helpful guidelines. The words employed in this statutory introduction to

the factors indicate that they are not intended to be mandatory nor exclusive. In

examining these factors, this Court recognizes that it must refrain, as previously

stated, from disturbing any of the trial court’s findings of fact which are unchallenged

as well as those which are supported by any competent evidence. This Court is also CHERRY CMTY. ORG. V. SELLARS

aware of the standard espoused in Shepard v. Bonita Vista Properties, L.P., 191 N.C.

App. 614 (2008), aff’d per curiam, 363 N.C. 252 (2009), with which we reiterate our

agreement that “[w]hen the trial court sits without a jury, as it did in this case, ‘the

standard of review on appeal is whether there was competent evidence to support the

trial court’s findings of fact and whether its conclusions of law were proper in light of

such facts.” 191 N.C. App. at 616.

¶ 24 While honoring these limitations upon appellate review, we still identify the

existence of six of the thirteen factors5 upon our de novo review of the Court of

Appeals decision for errors of law which it committed upon affirming the trial court’s

judgment, which included the trial court’s failure to address in its conclusions of law

the matter of the imputation of knowledge to defendants of StoneHunt’s fraudulent

conduct regarding the conveyance of the subject property to defendants which had

belonged to plaintiff. We conclude that the imputation of knowledge to defendants of

those facts which were known to StoneHunt at the time of the conveyance operates

to defeat defendants’ claim that it was a good faith purchaser for value of the land at

5 Of the thirteen statutory factors, only eleven of them were in position to be actively considered. Firstly, the factor contained in N.C.G.S. § 39-23.4(b)(11), “The debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor” is preempted by the utilization of N.C.G.S. § 39-23.4(b)(1) because the conveyance at issue was directly from StoneHunt to defendants, rather than from StoneHunt to another party which, in turn, transferred the land to defendants. Secondly, the factor addressed in N.C.G.S. § 39-23.4(b)(13), “The debtor transferred the assets in the course of legitimate estate or tax planning” is not relevant, with the subject matter of real estate constituting the focus here. CHERRY CMTY. ORG. V. SELLARS

issue.

¶ 25 Upon our review, this Court considers the following statutory factors expressly

mentioned in N.C.G.S. § 39-23.4(b) to be invoked with regard to StoneHunt’s intent

to defraud plaintiff, in plaintiff’s capacity as a creditor of its debtor StoneHunt, so as

to render voidable, as to the creditor plaintiff, its debtor StoneHunt’s transfer of title

to the subject property to defendants because defendants are deemed to be imputed

with the knowledge of their business partner StoneHunt that StoneHunt’s transfer

of title to defendants was made with the intent to defraud plaintiff.

1. Subsection (b)(1): The transfer or obligation was to an insider.

¶ 26 Collectively, defendants, as the grantee of the subject property, were insiders

of StoneHunt when the transfer of title was made to defendants.

2. Subsection (b)(3): The transfer or obligation was disclosed or concealed.

¶ 27 StoneHunt concealed its sale of the subject property to defendants. StoneHunt

did not disclose to plaintiff the sale of the subject property until after defendants took

title to the land. The concealment was instituted by StoneHunt at a time when

plaintiff’s claims against StoneHunt in the first lawsuit were reinstated by the Court

of Appeals. StoneHunt’s eventual disclosure to plaintiff of the transfer was performed

in order for StoneHunt to gain an advantage in the reactivated litigation.

3. Subsection (b)(4): Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit. CHERRY CMTY. ORG. V. SELLARS

¶ 28 Plaintiff filed the first lawsuit against StoneHunt on 10 September 2015. The

transfer of title to the subject property was made by StoneHunt to defendants on 2

February 2017. Plaintiff’s appeal of the dismissal of the first lawsuit was pending at

the time of the negotiation, and the Court of Appeals opinion which reversed the

dismissal of plaintiff’s lawsuit against StoneHunt and reinstated the action was

issued on 30 December 2016, more than a month prior to the transaction’s

consummation.

4. Subsection (b)(5): The transfer was of substantially all the debtor’s assets.

¶ 29 The subject property which StoneHunt transferred to defendants was the real

estate development company’s sole remaining real estate asset at the time, and

StoneHunt only had a small amount of cash on hand. With the exception of the cash

and the $900,000 promissory note which defendants issued to StoneHunt which

became due one year from its creation, StoneHunt had a weak financial condition and

no remaining assets. The subject property was StoneHunt’s last substantial asset

before plaintiff’s claims were reinstated.

5. Subsection (b)(8): The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.

¶ 30 StoneHunt’s agent, Sellars, proposed that defendants purchase the subject

property for $1.1 million, which was significantly less than half of the $2.5 million

value of the land that agent Sellars represented as the land’s worth. CHERRY CMTY. ORG. V. SELLARS

6. Subsection (b)(9): The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.

¶ 31 Subsequent to the debtor StoneHunt’s transfer of the title to the subject

property to defendants on 2 February 2017 which left StoneHunt with only a small

amount of cash money and a $900,000 promissory note as StoneHunt’s remaining

assets, StoneHunt filed for bankruptcy on 29 August 2018. StoneHunt had not been

able to pay its bills as they became due, and very soon after StoneHunt transferred

the subject property, a fair evaluation of StoneHunt’s debts exceeded the value of its

assets. In coupling our assessment of the presence and persuasiveness of these

statutory factors enumerated in N.C.G.S. § 39-23.4(b) with additional non-statutory

factors which we find existent and enlightening in the present case concerning the

determination of StoneHunt’s intent to defraud its creditor—here, plaintiff—under

N.C.G.S. § 39-23.4(a)(1) and the imputation of knowledge of the facts as StoneHunt

knew them at the time of StoneHunt’s implementation of the debtor’s intent, such as

(1) the lack of the obtainment of a formal appraisal prior to defendants’ purchase of

the subject property from StoneHunt, (2) defendants’ ready agreement to

StoneHunt’s proposed sales price of the subject property without any material

negotiation, (3) defendants’ willingness to accommodate StoneHunt’s desire for an

expeditious transfer of the land’s title in light of the prospect of a Court of Appeals

decision reinstating plaintiff’s claims against StoneHunt after StoneHunt’s

unequivocal e-mails to defendants’ agents that the Court of Appeals “may have a CHERRY CMTY. ORG. V. SELLARS

decision fairly quickly” on plaintiff’s appeal and therefore it was advisable “to try to

get this [subject property sale] done as soon as possible[,]” (4) the fact that StoneHunt

and defendants dissolved their joint venture to develop the subject property on the

same day—2 February 2017—that defendants obtained title to the subject property

from StoneHunt, (5) StoneHunt’s favoritism of defendants to the detriment of

plaintiff, and (6) StoneHunt’s preference to sell the subject property to defendants

outright rather than to contribute the land to their joint venture so that the subject

property would not have been an ownership asset of StoneHunt that would be

available to creditors such as plaintiff and to prevent plaintiff from collecting

anything on a judgment, we determine that these non-statutory factors are consistent

with the emblematic statutory factors found in N.C.G.S. § 39-23.4(b) to establish that

the transfer of land by StoneHunt to defendants which was fraudulently performed

is voidable as to plaintiff in plaintiff’s capacity as StoneHunt’s creditor, because as a

debtor—and as expressly determined by the trial court—StoneHunt made the

transfer with the intent to defraud plaintiff in plaintiff’s role as StoneHunt’s creditor.

In recognizing the binding nature of these extensive and comprehensive findings of

fact by the trial court upon this Court because they are either unchallenged on appeal

or because they are supported by any competent evidence, the trial court erred as a

matter of law in its failure to indicate its consideration of the imputation of knowledge

of StoneHunt’s fraudulent actions to defendants in defendants’ capacity as a co- CHERRY CMTY. ORG. V. SELLARS

principal of StoneHunt in their joint real estate development venture and the

resulting common law recognition of their principal-agent relationship wherein

defendants are charged with the knowledge of StoneHunt which was acquired by

StoneHunt in the course of defendants’ business pursuits with StoneHunt. The facts,

as found by the trial court, compel the imputation of knowledge to defendants of

StoneHunt’s fraudulent activities as StoneHunt knew these activities to be

fraudulent at the time of their commission, consequently rendering the transfer of

the subject property to defendants by StoneHunt to be voidable as to plaintiff and

thus denying defendants’ ability, under these facts and circumstances, to be a good

faith purchaser for value of the subject property.

D. Plaintiff’s UDTPA Argument

¶ 32 As a related issue, plaintiff argues that if the trial court is deemed to have

erred, as we have concluded was the case here, in determining defendants’ status as

good faith purchasers for value, then the trial court must also be instructed on

remand to enter judgment in favor of plaintiff as to its UDTPA claim against Midtown

Area Partners II, LLC, because the trial court’s dismissal of this claim was predicated

on its erroneous good faith purchaser determination. Plaintiff offers the bare

assertion, without citation to controlling statutory or case law, that defendants’

violation of the UVTA alone “constitutes a violation of the UDTPA as a matter of law.”

Plaintiff invokes several cases from this Court and the Court of Appeals which have CHERRY CMTY. ORG. V. SELLARS

tended to hold that violations of other fraud-related statutes also constitute violations

of the UDTPA. See, e.g., Stanley v. Martin, 339 N.C. 717, 723–25 (1995); Winston

Realty Co. v. G.H.G., Inc., 314 N.C. 90, 97–99 (1985).

¶ 33 Plaintiff’s argument regarding this issue was not argued before, nor considered

by, the Court of Appeals, and there is no decision from the lower appellate forum

concerning the trial court’s dismissal of plaintiff’s UDTPA claim which was lodged

against defendant Midtown Area Partners II, LLC when plaintiff amended its

complaint against that party as a matter of right.6 The argument was not referenced

in plaintiff’s petition for discretionary review, and thus was not considered in this

Court’s allowance of plaintiff’s request for this Court to afford discretionary review of

the Court of Appeals decision. Rule 16(a) of the North Carolina Rules of Appellate

Procedure states that, when reviewing a decision of the Court of Appeals “whether by

appeal of right or by discretionary review,” our task is limited to determining

“whether there is error of law in the decision of the Court of Appeals.” N.C. R. App. P.

16(a) (emphasis added). Unless a party asserts the right to appeal by virtue of the

presence of a dissenting opinion within the Court of Appeals’ decision in a case, our

6 The Court of Appeals did, however, hold that the trial court did not abuse its discretion in denying plaintiff’s motion to amend its complaint against defendant Midtown Area Partners Holdings, LLC because that issue was properly briefed and argued before the Court of Appeals. Plaintiff expressly waived any argument concerning this issue on discretionary review before this Court, and the Court of Appeals opinion on the issue of the trial court’s denial of plaintiff’s motion to amend is therefore left undisturbed by this opinion. CHERRY CMTY. ORG. V. SELLARS

review “is limited to consideration of the issues stated in . . . the petition for

discretionary review and the response thereto . . . and properly presented in the new

briefs.” Id. We have held that “[i]n the absence of error so fundamental that we would

invoke our Rule 2 [of the North Carolina Rules of Appellate Procedure] power to

suspend the rules and consider defendant's assignment of error, we, too, are bound

by the Rules of Appellate Procedure, and will not review matters not properly before

us.” State v. Fennell, 307 N.C. 258, 263 (1982). We hold that whether defendants’

violation of the UVTA constitutes a per se violation of the UDTPA is not an issue that

is properly before the Court, and plaintiff asserts no argument which requests our

invocation of Rule 2. Furthermore, we decline to invoke the general supervisory

powers of the Court in order to implement such a definitive determination as urged

by plaintiff. We therefore do not address the merits of plaintiff’s argument concerning

this issue.

III. Conclusion

¶ 34 In light of the foregoing observations, the decision reached by the Court of

Appeals in this case is reversed in part and remanded to the Court of Appeals for

further remand to the trial court for additional proceedings not inconsistent with this

Court’s opinion.

REVERSED IN PART AND REMANDED.

Justice BERGER did not participate in the consideration or decision of this CHERRY CMTY. ORG. V. SELLARS

case. Justice BARRINGER concurring in part and dissenting in part.

¶ 35 This matter concerns a claim of invalid transfer of real property (Subject

Property) between StoneHunt, LLC and Midtown Area Partners Holdings, LLC and

Midtown Area Partners II, LLC (collectively MAP), alleged by The Cherry

Community Organization (CCO). The Court of Appeals correctly held that the trial

court’s determination that MAP was a good faith purchaser of the Subject Property

was a finding of fact that was supported by competent evidence. Therefore, this Court

should affirm the decision of the Court of Appeals.

¶ 36 In reaching a contrary conclusion, the majority fails to consider the unique

nature of the asset in dispute—real property—and neglects to contemplate the effect

at the time of purchase of the trial court’s previous cancellation of CCO’s notice of lis

pendens. A full consideration of the evidence before the trial court—including the

trial court’s consistent denial of CCO’s claims to the title of the Subject Property,

MAP’s independent efforts to ensure that the Subject Property’s title was

unencumbered, and the fact that MAP paid a reasonably equivalent value for the

Subject Property—dictates that this Court should affirm the decision of the Court of

Appeals that upheld the trial court’s judgment. Therefore, I respectfully dissent in

part. I concur with the majority’s holding that CCO’s argument concerning its claim

against MAP under the Unfair or Deceptive Trade Practices Act is not properly before CHERRY CMTY. ORG. V. SELLARS

Barringer, J., dissenting

us and the majority’s decision to decline to invoke the Court’s general supervisory

powers to reach the merits on this issue.

I. Background

¶ 37 In 2004, StoneHunt and CCO entered into a contract under which StoneHunt

would purchase real property from CCO and provide some affordable housing on the

real property conveyed. Thereafter, in 2005, StoneHunt purchased the real property,

which included part of the Subject Property, from CCO. StoneHunt constructed a

multi-story residential structure on one of the parcels purchased from CCO. In 2013,

MAP approached StoneHunt to purchase the Subject Property, with the intention to

add the land to a mixed-use development project. MAP and StoneHunt subsequently

agreed to enter into a venture in which they would jointly pursue rezoning the Subject

Property and another parcel owned by MAP. Accordingly, MAP and StoneHunt

executed a zoning application in August 2014 for a mixed-use development covering

the Subject Property. StoneHunt had already sold the remaining undeveloped real

property purchased from CCO, except for the Subject Property, to another company.

At the public hearing in April 2015 before the Charlotte City Council, two individuals

spoke on behalf of CCO to voice their objections to the rezoning application.

Ultimately, the rezoning was approved on 28 September 2015.

¶ 38 On 10 September 2015, CCO filed a complaint against StoneHunt alleging

breach of contract and violation of the Unfair or Deceptive Trade Practices Act CHERRY CMTY. ORG. V. SELLARS

(UDTPA) and seeking money damages, partial rescission of the contract and deed,

and reconveyance of the Subject Property to CCO (Case No. 1). CCO also filed a notice

of lis pendens with respect to the Subject Property.

¶ 39 On 26 May 2016, the trial court cancelled the notice of lis pendens after

determining that pursuant to N.C.G.S. § 1-116(a)(1), CCO’s allegations in the

complaint for Case No. 1 did not affect title to the Subject Property (Cancellation

Order). CCO appealed the Cancellation Order. While initially, the Court of Appeals

temporarily stayed the Cancellation Order, the Court of Appeals later dissolved the

stay on 16 June 2016. On 17 June 2016, CCO’s counsel sent a letter to MAP’s counsel

informing MAP that although the notice of lis pendens had been cancelled by the trial

court, CCO expected its claim to recover title to the Subject Property would be

reinstated. Yet, on 4 April 2017, the Court of Appeals dismissed the appeal from the

Cancellation Order, finding that the appeal was interlocutory and that CCO had not

argued that the appeal affected a substantial right. Cherry Cmty. Org. v. StoneHunt,

LLC, No. COA16-905, 2017 WL 1276077, at *3–4 (N.C. Ct. App. April 4, 2017).

¶ 40 MAP purchased the Subject Property from StoneHunt on 2 February 2017.

Before the purchase, MAP had confirmed that the trial court had ruled that CCO’s

Case No. 1 had not affected the title to the Subject Property, that the trial court had

cancelled the notice of lis pendens, and that there was currently no lis pendens filed

with respect to the Subject Property. MAP paid StoneHunt $200,000 in cash and CHERRY CMTY. ORG. V. SELLARS

executed a promissory note in the amount of $900,000 due and payable on

2 February 2018.

¶ 41 On 30 August 2017, CCO filed a complaint against StoneHunt and MAP,

asserting claims under the North Carolina Uniform Voidable Transactions Act

(UVTA) pursuant to N.C.G.S. § 39-23.5, alleging that StoneHunt had engaged in a

fraudulent transfer and that MAP was not a good faith purchaser and did not pay a

reasonably equivalent value for the Subject Property (Case No. 2). CCO further

moved for a preliminary injunction either enjoining MAP from paying $900,000 to

StoneHunt on 2 February 2018 or enjoining StoneHunt and its principal from

disposing of any payments related to the transfer of the Subject Property or other

assets, or both. CCO also filed a notice of lis pendens relating to Case No. 2. On

9 February 2018, the trial court denied plaintiff’s motion for a preliminary injunction.

¶ 42 In Case No. 1, the jury returned a verdict in July 2018 in favor of CCO, finding

that StoneHunt breached the 2004 contract and finding facts supporting CCO’s

UDTPA claim. StoneHunt subsequently filed for bankruptcy under Chapter 11 of the

United States Bankruptcy Code, and CCO and StoneHunt consented to a judgment

in the amounts of $4,934,247, $591,929, $25,000, and $1,488,682, which respectively

reflect the trebling of actual damages found by the jury, interest, costs, and attorneys’

fees. CHERRY CMTY. ORG. V. SELLARS

¶ 43 Beginning 18 July 2018, a bench trial was conducted on Case No. 2 by the same

judge who had presided over Case No. 1 since 2017. On 31 December 2018, the trial

court entered a judgment in Case No. 2. The trial court found that CCO had met its

burden of proof to show that StoneHunt intended to hinder, delay, or defraud CCO

when it conveyed the Subject Property to MAP. See N.C.G.S. § 39-23.4(a)(1) (2021)

(“A transfer made or obligation incurred by a debtor is voidable as to a creditor,

whether the creditor’s claim arose before or after the transfer was made or the

obligation was incurred, if the debtor made the transfer or incurred the obligation

. . .[w]ith intent to hinder, delay, or defraud any creditor of the debtor . . . .”).

However, the trial court found that MAP met its burden of proof to show that it was

a good faith purchaser of the Subject Property and paid a reasonably equivalent value

for the property. The trial court noted that “[m]ere knowledge of a claim by a creditor

that does not affect title does not preclude MAP from being a good faith purchaser.”

As a result, the trial court found that the transfer of the Subject Property was not

voidable pursuant to N.C.G.S. § 39-23.8(a). See N.C.G.S. § 39-23.8(a) (2021) (“A

transfer or obligation is not voidable under [N.C.]G.S. [§] 39-23.4(a)(1) against a

person that took in good faith and for a reasonably equivalent value given the debtor

or against any subsequent transferee or obligee.”). Therefore, the trial court adjudged

that CCO should recover nothing against MAP, dismissed CCO’s claim against MAP

with prejudice, and decreed the notice of lis pendens void. CHERRY CMTY. ORG. V. SELLARS

¶ 44 Plaintiff appealed. On appeal, CCO argued that the trial court erred when it

concluded MAP was a good faith purchaser of the Subject Property. The Court of

Appeals disagreed and affirmed the trial court’s judgment in Case No. 2.

¶ 45 After appealing Case No. 2, CCO also filed an appeal from the Cancellation

Order entered in Case No. 1. However, CCO withdrew its appeal from the

Cancellation Order on 28 January 2020.

II. Standard of Review

¶ 46 In a bench trial in which the trial court sits without a jury, the standard of

review is whether competent evidence supported the trial court’s findings of fact and

whether those findings support its conclusions of law. Lumbee River Elec.

Membership Corp. v. City of Fayetteville, 309 N.C. 726, 741–42 (1983). In reviewing

the trial court’s findings of fact, “[t]he findings of fact made by the trial judge are

conclusive on appeal if supported by competent evidence, even if . . . there is evidence

to the contrary.” Id. at 741. A trial court’s judgment “must be granted the same

deference as a jury verdict.” Id.

III. Analysis

¶ 47 Under the UVTA, “[a] transfer [of property] is not voidable under [N.C.]G.S.

[§] 39-23.4(a)(1) against a person that took in good faith and for a reasonably

equivalent value.” N.C.G.S. 39-23.8(a). The transferee has the burden of proving that CHERRY CMTY. ORG. V. SELLARS

it took the property in good faith and that it paid reasonably equivalent value for the

property by a preponderance of the evidence. N.C.G.S. § 39-23.8(g)(1), (h).

¶ 48 As previously noted, the trial court determined that “MAP ha[d] established

and met its burden of proof to show that it was a good faith purchaser of the Subject

Property and that it paid reasonably equivalent value for the Subject Property.” Since

“[w]hether a party has acted in good faith is a question of fact for the trier of fact,”

Bledsole v. Johnson, 357 N.C. 133, 138 (2003), the Court of Appeals properly treated

this determination as a finding of fact. Cherry Cmty. Org. v. Sellars, No. COA19-695,

2020 WL 774020, at *4 (N.C. Ct. App. Feb. 18, 2020) (unpublished opinion); see also

Embree Constr. Grp., Inc. v. Rafcor, Inc., 330 N.C. 487, 499 (1992) (“The question of

‘good faith’ is one of fact to be resolved by the jury . . . .”). Therefore, this Court’s task

is to determine whether the finding of MAP’s good faith is supported by competent

evidence.

¶ 49 While good faith is not defined in N.C.G.S. § 39-23.8, this Court has recognized

in other contexts that good faith “is an equitable concept premised on honest belief

and fair dealing with another.” Bledsole, 357 N.C. at 140. Determining a party’s good

faith requires consideration of “the circumstances and context in which the party

acted.” Id. at 138.

¶ 50 Regarding the circumstances and context of this case, it is noteworthy that it

involves a real property transaction. In real property transactions, our law has CHERRY CMTY. ORG. V. SELLARS

consistently recognized that “a sale or mortgage for a valuable consideration may be

upheld as valid, though the seller or mortgagor intended by the transaction to delay

or defraud his creditors, where it is not shown that the purchaser or mortgagee

participated in the fraudulent purpose.” Henry W. Wolfe & Co. v. Arthur, 118 N.C.

890, 899 (1896).1 Nonetheless, a showing of actual knowledge and involvement is not

required when the transferee had “notice of such facts as would induce any prudent

man to institute and prosecute inquiries that would have led to the discovery by them

of the covinous purpose of [the transferor].” Id. at 898–99 (emphasis added).

¶ 51 Further, because this is a real estate transaction, the doctrine of lis pendens

applies. Under “[t]he firmly-established doctrine of lis pendens[,] . . . ‘[w]hen a person

buys property pending an action of which he has notice, actual or presumed, in which

the title to it is in issue, from one of the parties to the action, he is bound by the

judgment in the action, just as the party from whom he bought would have been.’ ”

Hill v. Pinelawn Mem’l Park, Inc., 304 N.C. 159, 163–64 (1981) (original emphasis

omitted and emphasis added) (quoting Rollins v. Henry, 78 N.C. 342, 351 (1878)).

Likewise, “[t]he lis pendens statutes enable a purchaser for a valuable consideration

who has no actual notice of the pendency of litigation affecting the title to the land to

1 Wolfe is spelled “Wolfe” in the text of the North Carolina Reports but is listed as “Wolf” on Westlaw and in the “Cases Reported” portion of Volume 118 of the North Carolina Reports. The page numbers in the Supreme Court reporter are misnumbered. The page numbering skips from 891 directly to 898. CHERRY CMTY. ORG. V. SELLARS

proceed with assurance when the lis pendens docket does not disclose a cross-indexed

notice disclosing the pendency of such an action.” Lawing v. Jaynes, 285 N.C. 418,

432 (1974) (original emphasis omitted); see also Lis Pendens, Black’s Law Dictionary

(11th ed. 2019) (stating the purpose of a notice of lis pendens as “to warn all persons

that certain property is the subject matter of litigation, and that any interests

acquired during the pendency of the suit are subject to its outcome”). Thus, a lis

pendens provides “record notice[ ] upon the absence of which a prospective innocent

purchaser may rely.” Whitehurst v. Abbott, 225 N.C. 1, 5 (1945).

¶ 52 In this matter, the trial court found that prior to purchase, MAP had confirmed

that the trial court had ruled that CCO’s Case No. 1 had not affected the title of the

Subject Property and had cancelled the lis pendens, that there was currently no lis

pendens, that MAP’s attorneys conducted a title search, and that MAP obtained a

commitment from a title insurance company to insure the Subject Property’s title as

free and clear without any exception for any notice of lis pendens. MAP had also

sought to purchase the property since 2013, long before any litigation by CCO. These

facts are not in dispute, and on this basis, MAP argues it could not have acted in bad

faith. These findings, which are supported by competent evidence, do support the

finding of good faith. While the letter sent to MAP by CCO’s attorney gave MAP

actual notice of CCO’s pending contract action against StoneHunt, the notice of lis

pendens had already been cancelled by the trial court, indicating CCO had no valid CHERRY CMTY. ORG. V. SELLARS

claim to the Subject Property’s title. Further, the property had been recently re-zoned

by the Charlotte City Council. Had there been a cloud on the title, the rezoning would

not have occurred. As found by the trial court, “[m]ere knowledge of a claim by a

creditor that does not affect title does not preclude MAP from being a good faith

purchaser.” See Hill, 304 N.C. at 165 (“While actual notice of another unrecorded

conveyance does not preclude the status of innocent purchaser for value, actual notice

of pending litigation affecting title to the property does preclude such status.”

(emphasis added)).

¶ 53 Moreover, no reinstatement of the lis pendens ever occurred. The Court of

Appeals dissolved the temporary stay of the Cancellation Order. CCO’s subsequent

appeal to the Court of Appeals with respect to the Cancellation Order was then

dismissed as interlocutory, because CCO failed to “address in its brief any substantial

right which would be jeopardized.” StoneHunt, 2017 WL 1276077, at *3 (cleaned up).

After entry of final judgment in Case No. 1, CCO appealed the trial court’s

Cancellation Order again. However, CCO moved to withdraw this appeal on

17 January 2020, and the Court of Appeals allowed the withdrawal on

28 January 2020. Thus, CCO abandoned its right to contend that Case No. 1 affected

the Subject Property’s title.

¶ 54 Further, MAP’s payment of more than a reasonably equivalent value for the

Subject Property is additional competent evidence of MAP’s good faith. After hearing CHERRY CMTY. ORG. V. SELLARS

testimony and considering appraisals by multiple witnesses, the trial court accepted

the estimated value of the Subject Property as approximately $664,000. MAP,

however, paid $1,100,000 for the Subject Property.

¶ 55 Therefore, the evidence put forth at trial was competent to support the trial

court’s finding that MAP was a good faith purchaser. Most notably: MAP was on

notice that CCO had no valid claims to the title of the Subject Property since the

notice of lis pendens was cancelled, and that remains the law of this case.

Furthermore, MAP conducted an independent investigation to ensure that the

Subject Property’s title was unencumbered, and MAP paid more than a reasonably

equivalent value for the Subject Property. While ultimately CCO was left without a

solvent entity from which to collect its judgment against StoneHunt in Case No. 1,

subsection 39-23.8(a) provides MAP a complete defense to avoidance of StoneHunt’s

fraudulent transfer and such defense is assessed at the time of transfer. N.C.G.S.

§ 39-23.8, official cmt. (2014). Both precedent and the statutory enactments of our

legislature compel that we leave this determination to the fact-finder. Accordingly,

we should adhere today to our role as an appellate court and decline to usurp the

authority of the trial court by reweighing the evidence in this matter, even if our

sympathies would encourage us to do otherwise. We should also recognize that to do

otherwise would render real property purchasers subject to the will of an appellate

court to determine issues better suited for a fact-finder and would undermine the CHERRY CMTY. ORG. V. SELLARS

certainty and predictability necessary to protect good faith purchasers of real

property, lenders, and insurers of real property title.

Chief Justice NEWBY joins in this concurring in part and dissenting in part

opinion.