Healthcare Found. of Wilson v. DLP Healthcare, LLC, 2026 NCBC 57.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION WAKE COUNTY 25CV033959-910
HEALTHCARE FOUNDATION OF WILSON,
Plaintiff,
v. ORDER AND OPINION ON MOTION TO DISMISS DLP HEALTHCARE, LLC; DLP PARTNER, LLC; and DLP WILSON HOLDING COMPANY, LLC (nominal),
Defendants.
1. Wilson Holding Company, LLC (“Wilson Holding”) owns and operates a
hospital and ancillary medical facilities in Wilson, North Carolina. The company has
just two members: Healthcare Foundation of Wilson (“Healthcare Foundation”) and
DLP Healthcare, LLC (“DLP Healthcare”). In 2024, Healthcare Foundation exercised
a contractual put option that allows it to sell its entire membership interest to DLP
Healthcare, which would make DLP Healthcare the sole owner of Wilson Holding.
But the purchase process is in limbo due to disagreements about how to value Wilson
Holding and Healthcare Foundation’s stake in it. In this lawsuit, Healthcare
Foundation asserts claims against DLP Healthcare and its parent company, DLP
Partner, LLC (“DLP Partner”), for breach of contract, breach of fiduciary duty, and
related wrongs.
2. DLP Healthcare and DLP Partner have moved to dismiss all claims under
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the following
reasons, the Court GRANTS in part and DENIES in part the motion. Womble Bond Dickinson (US) LLP, by Philip J. Mohr, A.J. Horner, and Wiley Bishop Hughes, for Plaintiff Healthcare Foundation of Wilson.
K&L Gates LLP, by Nathan Huff and Aaron Finkel, for Defendants DLP Healthcare, LLC and DLP Partner, LLC.
No counsel appeared for Nominal Defendant DLP Wilson Holding Company, LLC.
Conrad, Judge.
I. BACKGROUND
3. The Court does not make findings of fact on a Rule 12(b)(6) motion to
dismiss. The following background takes as true the allegations in the amended
complaint.
4. The Wilson Medical Center has a long history in Wilson, North Carolina.
Founded in the 1960s, the hospital boasts nearly 300 beds and has served patients in
practice areas ranging from imaging to surgery to emergency care. (See V. Am.
Compl. ¶ 7, ECF No. 30.)
5. For most of its existence, the hospital was owned and operated by
Healthcare Foundation (a North Carolina nonprofit corporation). That changed in
2013. Looking for help with improving patient services, Healthcare Foundation
linked up with DLP Healthcare (a Delaware LLC) to form Wilson Holding (also a
Delaware LLC) to take over the hospital’s ownership and operations. (See V. Am.
Compl. ¶¶ 1, 2, 4, 8, 9.)
6. Healthcare Foundation is Wilson Holding’s minority member, with just a
twenty-percent stake. DLP Healthcare holds the other eighty percent. When it comes
to management, things are a bit more equal because Wilson Holding’s operating agreement vests authority in a ten-member governing board, half appointed by
Healthcare Foundation and half appointed by DLP Healthcare. The governing board
long ago delegated day-to-day managerial authority to DLP Partner, which is DLP
Healthcare’s parent company. Thus, as a practical matter, Healthcare Foundation
can influence governance through its board appointments, but it has no say in
day-to-day management and cannot unilaterally choose Wilson Holding’s strategic
direction. (See V. Am. Compl. ¶¶ 3, 4, 9–11, 25, 27; Op. Agrmt. § 9.1, ECF No. 29.1;
see also Mgmt. Agrmt., ECF No. 29.3.)
7. For added protection, Healthcare Foundation negotiated a separate put
agreement that allows it to require DLP Healthcare to buy its minority interest in
certain circumstances. The put agreement defines the purchase price as a percentage
of Wilson Holding’s appraised value, with the appraisal to be performed by a qualified
appraiser selected by the governing board. Closing must take place no “later than
sixty (60) days following the date” the final appraised value is issued, and “each party
shall execute and deliver all such further documents and instruments and take all
such further actions as may be necessary in order to consummate the” put
transactions. (Put Agrmt. §§ 2, 4, 5, 7, ECF No. 29.2; see also V. Am. Compl. ¶ 25;
Op. Agrmt. § 1.)
8. As time went by, Healthcare Foundation lost faith in DLP Partner’s
management of the hospital. Especially worrisome were budget cuts, staff shortages,
and a perceived decline in the quality of care. Although Healthcare Foundation
proposed reforms, its efforts were frustrated by a divided governing board. So, in August 2024, Healthcare Foundation exercised its put option and began the process
of selling its minority interest to DLP Healthcare. (See, e.g., V. Am. Compl. ¶¶ 29,
31, 34, 36.)
9. A few months later, Wilson Holding’s governing board retained an appraiser
called BDO to assess “the fair market value of a 100.0% interest” in Wilson Holding
“as of a date to be determined (the ‘Valuation Date’).” The appraisal agreement
contemplates a few months’ worth of work in two phases. The deliverables for phase
one include “financial schedules detailing preliminary valuation conclusions.” The
deliverable for phase two is “a full draft report.” The appraisal agreement has a
three-year term. (V. Am. Compl. ¶¶ 37, 38, 42; Ex. A, ECF No. 44.)
10. BDO started by requesting preliminary valuation information. In that
request, it asked the parties to “confirm the date of valuation (the ‘Valuation Date’)”
and noted “that all financial and market information will be leveraged as of the date
of valuation.” DLP Healthcare replied as follows: “Planning to use the period ending
12/31/2024 and provide [calendar year] 2024 financials once available later this
month.” As alleged, Healthcare Foundation agreed with the proposed valuation date
and “conveyed its acceptance in the follow-up calls and communications held with
BDO and DLP Healthcare representatives.” Through these communications,
Healthcare Foundation alleges, the parties formed a contract to use 31 December
2024 as the valuation date. Healthcare Foundation refers to this alleged contract as
the Valuation Date Agreement. (V. Am. Compl. ¶¶ 45, 47–50; see also Prelim.
Request Ex. B, ECF No. 45.) 11. Over the next six months, BDO gathered and assessed a great deal of
financial information. It also met with and swapped emails with party
representatives on a regular basis. Along the way, BDO produced two appraisal
drafts for the parties’ review, each time using 31 December 2024 as the valuation
date. Although Healthcare Foundation and DLP Healthcare offered expansive
feedback on both drafts, neither objected to the valuation date. (See V. Am. Compl.
¶¶ 51, 53, 55–57, 63–65, 69.)
12. When BDO produced its third draft in June 2025, the appraisal process
broke down. In this nearly final draft, BDO tentatively assessed Wilson Holding’s
value at a figure approaching $300 million. DLP Healthcare strenuously objected
and, for the first time in the appraisal process, stated that it opposed the use of 31
December 2024 as the valuation date. Healthcare Foundation, by contrast, urged
BDO to finish its work and issue its final report. Then, in July 2025, DLP Partner
stepped in as Wilson Holding’s manager and instructed BDO not to issue the final
appraisal. (See V. Am. Compl. ¶¶ 71, 72, 74, 76, 77, 85, 90, 91.)
13. Soon after, Healthcare Foundation brought this lawsuit. It alleges that BDO
would have issued a final appraisal by the end of July 2025 and closing on the put
option would have occurred by the end of September 2025 had DLP Partner not called
a halt to the process. Moreover, BDO’s appraisal allegedly would have entitled
Healthcare Foundation to receive roughly $55 million for its minority interest.
According to Healthcare Foundation, DLP Healthcare and DLP Partner were unwilling to pay that amount and therefore reneged on the Valuation Date
Agreement and halted the appraisal process. (See V. Am. Compl. ¶¶ 96, 100, 101.)
14. The amended complaint asserts a few direct claims and a few derivative
claims on behalf of Wilson Holding. Listed in the order pleaded, the claims include
the following: 1) a direct claim for breach of contract against DLP Healthcare; 2) a
direct claim for breach of fiduciary duty against DLP Partner; 3) a direct claim for
aiding and abetting breach of fiduciary duty against DLP Healthcare; 4) a derivative
claim for breach of fiduciary duty against DLP Partner; 5) a derivative claim for
tortious interference with contract against DLP Partner; and 6) a direct claim for
breach of the implied covenant of good faith and fair dealing against DLP Healthcare.
(See, e.g., V. Am. Compl. ¶¶ 107, 109, 113, 119, 128, 143, 148, 155, 159, 163.)
15. DLP Healthcare and DLP Partner have moved to dismiss all claims against
them. The motion is fully briefed, and the Court held a hearing on 14 May 2025. The
motion is ripe for decision.
II. LEGAL STANDARD
16. A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of the
complaint.” Isenhour v. Hutto, 350 N.C. 601, 604 (1999) (citation and quotation marks
omitted). The motion should be granted only when “(1) the complaint on its face
reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals
the absence of facts sufficient to make a good claim; or (3) the complaint discloses
some fact that necessarily defeats the plaintiff’s claim.” Corwin v. British Am.
Tobacco PLC, 371 N.C. 605, 615 (2018) (citation and quotation marks omitted). 17. In deciding the motion, the Court must treat all well-pleaded allegations as
true and view the facts and permissible inferences “in the light most favorable to” the
nonmoving party. Sykes v. Health Network Sols., Inc., 372 N.C. 326, 332 (2019)
(citation and quotation marks omitted). However, the Court need not accept as true
any “conclusions of law or unwarranted deductions of fact.” Wray v. City of
Greensboro, 370 N.C. 41, 46 (2017) (citation and quotation marks omitted). The Court
may also “consider documents which are the subject of a plaintiff’s complaint and to
which the complaint specifically refers,” without converting the motion to a motion
for summary judgment. Oberlin Cap., L.P. v. Slavin, 147 N.C. App. 52, 60 (2001).
III. ANALYSIS
18. The Valuation Date Agreement is central to the amended complaint and the
arguments supporting and opposing the motion to dismiss. Every asserted claim is
premised at least in part on the allegation that Healthcare Foundation and DLP
Healthcare formed a contract to use 31 December 2024 as the valuation date for the
appraisal being performed by BDO. Although DLP Healthcare and DLP Partner seek
dismissal on several grounds, they lean heavily on the argument that no such
agreement exists and that, without it, no claim can survive. Thus, the Court begins
with the Valuation Date Agreement and Healthcare Foundation’s contract claims.
A. Contract Claims
19. Healthcare Foundation claims that DLP Healthcare breached the Valuation
Date Agreement by renouncing their chosen valuation date. In addition, it claims
that DLP Healthcare breached the put agreement and Wilson Holding’s operating agreement by encouraging or directing DLP Partner to instruct BDO not to issue the
final appraisal. The same actions are also alleged to be breaches of the implied
covenant of good faith and fair dealing in each contract.
20. Before turning to the parties’ arguments, let’s pause to clarify which State’s
law applies to these claims. Happily, the parties seem to be on the same page. They
agree that North Carolina law governs the Valuation Date Agreement, including
whether a contract was formed. And they agree that Delaware law governs the put
agreement and the operating agreement because each has a Delaware choice-of-law
clause. Having no reason to doubt the parties’ consensus on either point, the Court
will follow their lead. See, e.g., Tanglewood Land Co. v. Byrd, 299 N.C. 260, 262
(1980) (“[W]here parties to a contract have agreed that a given jurisdiction’s
substantive law shall govern the interpretation of the contract, such a contractual
provision will be given effect.”); Fast v. Gulley, 271 N.C. 208, 211 (1967) (noting the
usual rule that “[m]atters bearing upon the execution, interpretation and validity of
a contract are determined by the law of the place where it is made” (cleaned up)).
21. Under North Carolina law, the elements of a claim for breach of contract are
the existence of a valid contract and a breach of that contract’s terms. See Poor v.
Hill, 138 N.C. App. 19, 26 (2000). When these elements are alleged, “it is error to
dismiss a breach of contract claim under Rule 12(b)(6).” Woolard v. Davenport, 166
N.C. App. 129, 134 (2004).
22. Delaware law is similar. To state a claim, “the plaintiff must demonstrate:
first, the existence of the contract, whether express or implied; second, the breach of an obligation imposed by that contract; and third, the resultant damage to the
plaintiff.” VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003).
23. In moving to dismiss the contract claims, DLP Healthcare argues that the
Valuation Date Agreement is not a valid contract because it lacks mutual assent. 1
According to DLP Healthcare, it did not make a contractual offer when it stated that
it was “[p]lanning to use the period ending 12/31/2024” in response to BDO’s
preliminary request for information. Without an offer, DLP Healthcare contends,
there could be no acceptance by Healthcare Foundation and, thus, no contract. And
absent a Valuation Date Agreement, it continues, there could be no independent
breach of the put agreement, the operating agreement, or the implied covenant.
24. It is true that mutual assent is essential to the formation of a contract. But
“[w]hether mutual assent is established and whether a contract was intended
between parties are questions for the trier of fact.” Snyder v. Freeman, 300 N.C. 204,
217 (1980). At the pleading stage, the burden on Healthcare Foundation is light. It
does not have to prove its case. It need only allege sufficient facts to put the opposing
parties on notice of “the transactions, occurrences, or series of transactions or
occurrences” that give rise to the claim. N.C. R. Civ. P. 8(a).
25. The amended complaint clears that “relatively low bar.” Vanguard Pai
Lung, LLC v. Moody, 2019 NCBC LEXIS 39, at *11 (N.C. Super. Ct. June 19, 2019).
1 In its opening brief, DLP Healthcare also argues that no contract was formed due to a lack
of consideration. But a mutual agreement to use a particular valuation date in lieu of all other possible dates satisfies the requirement of consideration for contract formation. See, e.g., Davis v. Woods, 286 N.C. App. 547, 562 (2022) (defining consideration broadly to include any “benefit, right, or interest bestowed upon the promisor, or any forbearance, detriment, or loss undertaken by the promisee”). Neither the put agreement nor the appraisal agreement establishes a valuation date
for the appraisal process. As alleged, though, choosing a valuation date was an
essential precondition for BDO’s work. The appraisal agreement makes this clear.
So does BDO’s preliminary request for information, which asked the parties to
“confirm” the valuation date and stated that “all financial and market information
will be leveraged as of the date of valuation.” (Prelim. Request 1.) It was in this
context that DLP Healthcare responded that 31 December 2024 would be the
valuation date. The parties allegedly then had “follow-up calls and communications”
in which Healthcare Foundation accepted DLP Healthcare’s proposed date, thus
forming the Valuation Date Agreement. (V. Am. Compl. ¶ 49.) What’s more, the
amended complaint alleges that Healthcare Foundation and DLP Healthcare
repeatedly used 31 December 2024 as the valuation date in communications with
each other and BDO for a period of roughly six months with no objections. (See, e.g.,
V. Am. Compl. ¶¶ 51, 56, 56, 60, 68.)
26. The Court cannot conclude from these allegations that Healthcare
Foundation “could prove no set of facts in support of its claim which would entitle it
to relief.” Spring v. Lawson, 2026 NCBC LEXIS 97, at *20–21 (N.C. Super. Ct. Apr.
27, 2026) (cleaned up). Taken as true and construed in the light most favorable to
Healthcare Foundation, the allegations show that the parties mutually assented to
use 31 December 2024 as the valuation date. Accordingly, the Court concludes that
Healthcare Foundation has sufficiently alleged the existence of a valid contract and
a breach of its terms. See Lannan v. Bd. of Gov. of Univ. of N.C., 285 N.C. App. 574, 599 (2022) (affirming denial of motion to dismiss and stating that “[a]lthough the
allegation of the meeting of the minds is sufficient at this stage, ultimately whether
there was a meeting of the minds is a question for the trier of fact”).
27. DLP Healthcare’s remaining arguments as to these claims are scattershot.
It contends, for example, that Healthcare Foundation failed to allege that the
conditions precedent to the exercise of the put option were satisfied. This argument
comes nowhere near the mark. As Healthcare Foundation correctly points out, it had
the right to exercise the put option upon the tenth anniversary of the put agreement
and timely did so. (See Put Agrmt. § 2.)
28. Next, DLP Healthcare argues that the put agreement does not govern the
appraisal process, so that renouncing the chosen valuation date and causing BDO to
withhold its final appraisal are not breaches of the put agreement. Again, the Court
cannot conclude that Healthcare Foundation could prove no set of facts that would
entitle it to relief. Taken as true, the allegations tend to show that DLP Healthcare
took steps to delay or avoid purchasing Healthcare Foundation’s interest, contrary to
the requirement to “take all such further actions as may be necessary in order to
consummate the” transaction. (Put Agrmt. § 7; see also, e.g., V. Am. Compl. ¶ 157.)
29. DLP Healthcare also argues that the amended complaint does not allege a
breach of the operating agreement. What is alleged, though, is that DLP Healthcare
used its influence as an affiliate of DLP Partner to meddle in Wilson Holding’s
management even though the operating agreement prohibits the members from
participating in management. (See, e.g., Am. Compl. ¶¶ 3, 51, 91, 96 (alleging that DLP Healthcare and DLP Partner were jointly represented by officials from their
common parent company).) Discovery may show that DLP Healthcare lacks that
influence or did not meddle. But the allegations, taken as true, are sufficient to state
a claim under a notice-pleading standard.
30. Last, DLP Healthcare argues that the claim for breach of the implied
covenant does nothing more than recapitulate the claim for breach of contract. “The
implied covenant, inherent in all agreements, ensures that the parties deal honestly
and fairly with each other when addressing gaps in their agreement.” Glaxo Grp.
Ltd. v. Drit LP, 248 A.3d 911, 919 (Del. 2021). Although a claim for breach of the
implied covenant is “rarely invoked successfully” under Delaware law, the courts of
that State have cautioned against dismissing even “doubtful” claims when factual
uncertainty exists at the pleading stage. Wnyh, LLC v. AccuMED Corp., 2018 Del.
Ch. LEXIS 173, at *19–20 (Del. Ch. May 31, 2018) (citation and quotation marks
omitted). Such is the case here. Given the uncertainty surrounding the Valuation
Date Agreement and the disputed facts related to the alleged breaches, it would be
“premature to address the possible relevance of the implied covenant” to Healthcare
Foundation’s claims. Id. at *20.
31. Accordingly, the Court denies the motion to dismiss the claims for breach of
contract and breach of the implied covenant of good faith and fair dealing.
B. Fiduciary Claims
32. The amended complaint includes direct and derivative claims against DLP
Partner for breach of fiduciary duty, as well as a direct claim against DLP Healthcare for aiding and abetting a breach of fiduciary duty. As Wilson Holding’s manager,
DLP Partner is alleged to owe fiduciary duties to Wilson Holding and its members.
DLP Partner supposedly breached these duties when it directed BDO not to issue the
final appraisal, thus promoting DLP Healthcare’s interests over Healthcare
Foundation’s. As alleged, DLP Healthcare encouraged DLP Partner to halt the
appraisal, thus aiding and abetting the breach.
33. Again, the parties seem to be on the same page as to which State’s law
applies to these claims. Because Wilson Holding is a Delaware company, Delaware
law governs its internal affairs, including the fiduciary obligations of its manager.
See Bluebird Corp. v. Aubin, 188 N.C. App. 671, 680 (2008) (discussing “internal
affairs doctrine”).
34. To state a claim for breach of fiduciary duty under Delaware law, a plaintiff
must allege “(1) that a fiduciary duty existed and (2) that the defendant breached
that duty.” Beard Rsch., Inc. v. Kates, 8 A.3d 573, 601 (Del. Ch. Apr. 23, 2010), aff’d
sub nom. ASDI, Inc. v. Beard Rsch., Inc., 11 A.3d 749 (Del. 2010). For an aiding and
abetting claim, the plaintiff must allege “(1) the existence of a fiduciary relationship,
(2) a breach of the fiduciary’s duty, (3) knowing participation in that breach by the
defendants, and (4) damages proximately caused by the breach.” In re Mindbody,
Inc., S’holder Litig., 332 A.3d 349, 389 (Del. 2024) (cleaned up).
35. DLP Partner does not dispute in this motion that it owes fiduciary duties to
Wilson Holding and its members. Rather, it argues that it did not favor DLP
Healthcare over Healthcare Foundation—and therefore did not breach its fiduciary duties—by directing BDO to withhold the final appraisal. Pausing the appraisal
process, it contends, was a neutral decision meant to give Wilson Holding’s members
time to work out their disagreement about the appropriate valuation date to use for
the appraisal.
36. This argument lacks force because it presumes that the Valuation Date
Agreement does not exist. The amended complaint adequately alleges not only that
such an agreement exists (as discussed above) but also that DLP Partner knew about
it and directed BDO not to issue the final appraisal once it became clear that
Healthcare Foundation’s membership interest was worth far more than DLP
Healthcare wanted to pay. (See V. Am. Compl. ¶¶ 97, 128.) As alleged, millions of
dollars ride on the choice of valuation date. (See V. Am. Compl. ¶¶ 101, 103.) The
amended complaint adequately alleges that DLP Healthcare stood to benefit from
DLP Partner’s interference at Healthcare Foundation’s expense and that DLP
Partner also stood to benefit indirectly as DLP Healthcare’s parent. (See V. Am.
Compl. ¶ 97.) These allegations adequately state a claim for breach of fiduciary duty
based on DLP Partner’s self-interested misuse of managerial authority.
37. DLP Partner maintains that the derivative claim for breach of fiduciary duty
must be dismissed. This is so, DLP Partner contends, because directing BDO not to
issue the appraisal does not implicate any duty owed to Wilson Holding, even if it
might implicate a duty owed to Healthcare Foundation. But DLP Partner cites no
law for that proposition. The duty of loyalty requires the manager to put the interest
of the company and members ahead of its own self-interest. See, e.g., Cede & Co. v. Technicolor, 634 A.2d 345, 361 (Del. 1993) (“Essentially, the duty of loyalty mandates
that the best interest of the corporation and its shareholders takes precedence over
any interests possessed by a director, officer or controlling shareholder and not
shared by the stockholders generally.”). The allegation that DLP Partner acted to
benefit itself is sufficient to state a claim for breach of the duty of loyalty.
38. Even if the claim for breach of fiduciary duty against DLP Partner survives,
DLP Healthcare argues that it cannot be liable for aiding and abetting because the
amended complaint does not allege knowing participation or damages. The Court
disagrees.
39. Although Delaware courts have observed that it is difficult to prove knowing
participation, they have also acknowledged that it is not quite as difficult to plead
that element. The complaint must allege “facts making it reasonably conceivable that
the defendant knowingly supported a breach of duty and that his resulting assistance
to the primary actor constituted substantial assistance in causing the breach.” In re
Oracle Corp. Derivative Litig., 2020 Del. Ch. LEXIS 218, at *33 (Del. Ch. June 22,
2020) (emphasis in original). Here, the amended complaint alleges that DLP
Healthcare used its influence as a close affiliate to instigate DLP Partner’s decision
to stop BDO from issuing the final appraisal. (See V. Am. Compl. ¶¶ 96, 98, 128.) A
reasonable inference that arises from the allegations is that DLP Partner would not
have interfered with BDO’s performance if DLP Healthcare had not urged it to do so.
(See V. Am. Compl. ¶ 96.) These allegations are not extensive, and Healthcare
Foundation may face challenges in proving its case. But “[a]t this preliminary stage of the litigation,” the Court “cannot rule out the possibility” that DLP Healthcare
knowingly participated in DLP Partner’s breach of its fiduciary duties. Stewart v.
Wilmington Tr. SP Servs., 112 A.3d 271, 321 (Del. Ch. Mar. 26, 2015). 2
40. As for damages, DLP Healthcare contends that Healthcare Foundation may
yet receive the purchase price that it seeks and therefore has not been injured. But
Healthcare Foundation alleges that BDO would have issued its final appraisal long
ago absent DLP Partner’s interference, that the closing would also have occurred, and
that the ongoing delay has kept Healthcare Foundation from receiving $55 million in
proceeds and enjoying the benefits of the put option that it bargained for. That is
more than enough to allege injury.
41. Accordingly, the Court denies the motion to dismiss the claims for breach of
fiduciary duty and aiding and abetting the breach.
C. Tortious Interference
42. The final claim is a derivative claim for tortious interference with contract.
This claim is also based on the allegation that DLP Partner improperly directed BDO
not to issue the final appraisal in July 2025, thus tortiously interfering with the
appraisal agreement between BDO and Wilson Holding.
43. Once more, the Court applies Delaware law, as urged by the parties. See
Bluebird, 188 N.C. App. at 680–81 (discussing “internal affairs doctrine”).
2 In connection with this issue, DLP Partner points out that DLP Healthcare is its subsidiary
and that a subsidiary, by definition, cannot direct its parent’s actions. Perhaps so. But the element of knowing participation requires substantial assistance, not puppeteer-like direction. 44. A claim for tortious interference with contract arises when a person induces
a third party to breach an existing contract with the plaintiff. Under Delaware law,
“[t]here must be (1) a contract, (2) about which defendant knew and (3) an intentional
act that is a significant factor in causing the breach of such contract (4) without
justification (5) which causes injury.” Aspen Advisors LLC v. United Artists Theatre
Co., 861 A.2d 1251, 1265–66 (Del. 2004) (citation and quotation marks omitted). In
other words, Healthcare Foundation must allege that DLP Partner induced BDO to
breach the appraisal agreement, causing harm to Wilson Holding.
45. The amended complaint states that DLP Partner caused “BDO to refrain
from issuing the” final appraisal and thereby “caused BDO to breach the Appraisal
Agreement.” (V. Am. Compl. ¶ 143.) At no point, though, does the amended
complaint allege facts sufficient to show that BDO’s delay is a breach of the appraisal
agreement, particularly given the express allegation that BDO withheld its final
appraisal at the request of an agent (DLP Partner) of the other contractual party
(Wilson Holding). (See, e.g., V. Am. Compl. ¶¶ 91, 100.) Moreover, although
Healthcare Foundation may have suffered harm from the delay, it is difficult to see
what harm Wilson Holding has suffered. The only allegation of harm is conclusory
and therefore insufficient to support the claim. (See V. Am. Compl. ¶ 145.)
46. Accordingly, the Court grants the motion to dismiss this claim. Because
Healthcare Foundation has already amended its complaint, the Court dismisses this
claim with prejudice. See First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013) (“The decision to dismiss an action with or without prejudice is in the discretion of
the trial court . . . .”).
IV. CONCLUSION
47. For all these reasons, the Court GRANTS the motion to dismiss the
derivative claim against DLP Partner for tortious interference with contract. This
claim is dismissed with prejudice. The Court DENIES the motion to dismiss in all
other respects.
SO ORDERED, this the 23rd day of June, 2026.
/s/ Adam M. Conrad Adam M. Conrad Special Superior Court Judge for Complex Business Cases