Wilkie v. Stanley, 042011 NCSUP, 10 CVS 6257

Docket Nº:10 CVS 6257
Opinion Judge:Gale, Judge
Party Name:JAMES E. WILKIE, Plaintiff, v. JEREMY L. STANLEY, Defendant.
Attorney:Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by James C. Adams for Plaintiff. Boydoh Law Group by J. Scott Hale for Defendant.
Case Date:April 20, 2011
Court:Superior Courts of Law and Equity of North Carolina

2011 NCBC 11

JAMES E. WILKIE, Plaintiff,



No. 10 CVS 6257

Superior Court of North Carolina, Guilford

April 20, 2011

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by James C. Adams for Plaintiff.

Boydoh Law Group by J. Scott Hale for Defendant.


Gale, Judge

{1} THIS MATTER is before the Court on Defendant Jeremy Stanley's Motions to Dismiss Amended Complaint, brought pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure. After considering the submissions by counsel and hearing oral arguments, the motions are DENIED.

{2} The motions now before the Court must be resolved at the intersection of Rules 12(b)(1) and 12(b)(6). Defendant introduces factual evidence beyond the Amended Complaint and challenges jurisdiction upon such evidence. The jurisdictional challenge rests on a merits assumption that Plaintiff has no injury in fact, and, therefore, no standing. Defendant offers affidavit evidence that any partnership that may have existed was at will and was terminated or dissolved as a matter of law, with no need for an accounting and no action for damages remaining because any income or asset of the partnership arose exclusively from client contracts that are terminable at will, so that any injury associated with future income from those contracts is speculative. The Court concludes that the proper standard of review of the jurisdictional issues dictates only that the Amended Complaint brings forth facts, which if assumed true, are adequate to present a cognizable claim of recoverable injury. Under this standard of review, the Court concludes it has jurisdiction. Finding that it has jurisdiction, the Court concludes that each of the claims in the Amended Complaint withstand early dismissal under Rule 12(b)(6).1

I. Procedural History

{3} This action was filed in Guilford County Superior Court on May 6, 2010, then designated a mandatory complex business case. Defendant filed an initial motion to dismiss the Complaint, in response to which Plaintiff filed an Amended Complaint. The Amended Complaint includes eight claims of relief: (1) breach of partnership agreement, (2) breach of joint venture, (3) breach of contract, (4) breach of fiduciary duty, (5) interference with business relations, (6) constructive trust, (7) constructive fraud, and (8) accounting. Defendant renewed his Rule 12(b)(1) and Rule 12(b)(6) motions to dismiss. Defendant offers his own affidavit in support of his motions, urging that Plaintiff has no cognizable injury. The motions were fully briefed and the Court heard oral argument.

II. Facts

{4} The facts presume the truth of Plaintiff's allegations. Clearly, Defendant denies certain of these facts.

Plaintiff and Defendant are certified financial planners. They worked together from 1997 until 2008. In or about 2004, they affiliated with Linsco/Private Ledge Financial Services ("LPL"), a broker dealer. In 2005, they joined Compass Financial Partners, LLC ("Compass"), while continuing their affiliation with LPL.

Wilkie and Stanley entered into an oral partnership and/or joint venture to provide investment and asset management services to certain members of the North Carolina Association of Nurse Anesthetists ("NCANA"). Pursuant to their agreement, while together they shared all expenses related to the NCANA program 50/50, shared all duties and responsibilities related to the program, and shared all commissions and other revenues generated by the program participants 50/50. NCANA members desiring to use Wilkie's or Stanley's services would execute an agreement with the broker dealer designating either or both men as their investment advisors, but would be aware that fees would be shared. The parties executed an agreement with LPL confirming their 50/50 relationship with respect to NCANA clients. Through the NCANA program, Wilkie and Stanley obtained approximately fifty (50) clients. Wilkie's claim is that the agreement binds either Wilkie or Stanley to share revenues from any of these clients, irrespective of whether the client subsequently elects to have only one of them provide investment services. While a client's election to use neither of them may terminate revenue to be shared, so long as revenue is received by either of them, it must be shared.

In late 2008, Stanley left...

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