Eubank v. Van–Riel

Decision Date19 June 2012
Docket NumberNo. COA11–1088.,COA11–1088.
PartiesEdwin L. EUBANK, Plaintiff v. Antoinette VAN–RIEL and Law Offices Of Antoinette Van–Riel, P.A., Defendants.
CourtNorth Carolina Court of Appeals

727 S.E.2d 25

Edwin L. EUBANK, Plaintiff
v.
Antoinette VAN–RIEL and Law Offices Of Antoinette Van–Riel, P.A., Defendants.

No. COA11–1088.

Court of Appeals of North Carolina.

June 19, 2012.


Appeal by plaintiff from order entered 28 April 2011 by Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 22 February 2012.

Edwin L. Eubank, pro se, for Plaintiff-appellant.

Craige Brawley Liipfert & Walker, LLP, by William W. Walker, for Defendant-appellees.


ERVIN, Judge.

Plaintiff Edwin L. Eubank appeals from an order denying his motion seeking the disqualification of the trial court; granting Plaintiff's motion to amend his complaint; granting Defendants' motion to dismiss; dismissing Plaintiff's complaint with prejudice; ruling that the voluntary dismissal taken by Plaintiff on 31 March 2011 constituted a dismissal with prejudice; and denying Plaintiff's motion for relief from that earlier dismissal. On appeal, Plaintiff argues that the trial court erred by dismissing his claims for conversion, civil conspiracy to engage in conversion, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, deprivation of his right to due process pursuant to 42 U.S.C. § 1983, and racketeering in violation of 18 U.S.C. § 1962 on the grounds that he properly pled these claims in his complaint; that these claims are not barred by the applicable statutes of limitation; that his voluntary dismissal constituted a dismissal without, rather than with, prejudice; and that he should have been awarded relief from his voluntary dismissal. After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that Plaintiff's claims for conversion, civil conspiracy to engage in conversion, breach of fiduciary duty, aiding and abetting breaches of fiduciary duty, and deprivation of his right to due process were barred by the applicable statute of limitations; that Plaintiff's complaint does not state a claim for racketeering; that Plaintiff's voluntary dismissal was not filed in good faith; and that the trial court did not err by dismissing his claims with prejudice.

I. Factual Background

“[Plaintiff] was admitted to the practice of law in the State of New York by the Second Judicial Department on March 19, 1969.” In re Eubank, 293 A.D.2d 41, 740 N.Y.S.2d 869 (2002). In 1998, a New York attorney named Edward Klein obtained a judgment against Plaintiff “in the total amount of $101,550.” Klein v. Eubank, 263 A.D.2d 357, 693 N.Y.S.2d 541, 542 (N.Y.App. Div. 1st Dep't 1999). In 2002, “the [New York] Departmental Disciplinary Committee served [Plaintiff] with charges alleging that he violated Code of Professional Responsibility DR 1–102(a)(5) (two counts) and DR 7–106(a) ... when he failed to give an accounting and pay a judgment awarded in the Supreme Court, New York County, and because he was held in criminal contempt in the same matter.” Eubank, 293 A.D.2d at 42, 740 N.Y.S.2d at 870. In response, Plaintiff claimed that he “suffer[ed] from a disability by reason of mental infirmity or illness which ma[de] it impossible for him to defend himself and/or to assist his attorney in doing so.” Id. With Plaintiff's consent, the New York Supreme Court entered an order indefinitely suspending Plaintiff from the practice of law. Eubank, 293 A.D.2d at 43, 740 N.Y.S.2d at 870. Subsequently, Plaintiff moved to North Carolina, from which state he has been providing “paraprofessional and technical litigation support services to attorneys.”

Defendant Antoinette Van–Riel is licensed to practice law in both North Carolina and New York. In 2003, several New York residents hired Ms. Van–Riel to prosecute claims against New York businesses for unpaid wages and benefits. Plaintiff and Ms. Van–Riel entered into a written agreement in March 2004 under which Plaintiff was to provide paralegal services to Ms. Van–Riel and her law firm in the New York case and be paid “upon a time and hourly rate basis.” Plaintiff provided services to Defendants pursuant to this agreement from late 2003 until at least June 2005.

The New York case settled on 6 January 2006. Plaintiff had told Ms. Van Riel about the judgment that Mr. Klein had obtained against him during their initial discussions regarding Plaintiff's work for Defendants. After the settlement was reached, Ms. Van Riel contacted Mr. Klein, offered to pay him what she owed Plaintiff, and cooperated with Mr. Klein's efforts to execute against certain funds that Ms. Van Riel owed Plaintiff.

On 18 July 2006, Plaintiff filed a complaint against Defendants in Forsyth County File No. 06 CVS 5142 in which he asserted five claims stemming from an alleged breach of the agreement between Plaintiff and Defendants. In November 2006, Ms. Van–Riel contacted Mr. Klein and offered to pay him whatever money she owed to Plaintiff. Subsequently, Mr. Klein began execution proceedings against Plaintiff in New York and North Carolina. On 26 December 2006, Defendants informed Plaintiff that they had paid $30,019.65 to Mr. Klein, an action to which Plaintiff “immediately objected.” On 9 June 2008, Plaintiff dismissed his complaint in File No. 06 CVS 5142 without prejudice pursuant to N.C. Gen.Stat. § 1A–1, Rule 41(a)(l).

On 26 April 2010, Plaintiff filed a complaint asserting the same five contract-based claims that had been alleged in his complaint in File No. 06 CVS 5142 and adding nineteen additional claims based on allegations that Defendants had participated in a “scheme” between Defendants and Mr. Klein. On 10 August 2010 and 4 November 2010, Defendants filed answers denying the material allegations of Plaintiff's complaint, asserting various affirmative defenses, and moving to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to N.C. R. Civ. P. 12(b)(6). Defendants restated their dismissal motions on 8 March 2011. Plaintiff served a motion to amend his complaint on 18 March 2011.

Defendants' dismissal motion and Plaintiff's amendment motion came on for hearing before the trial court during the 21 March 2011 civil session of Forsyth County Superior Court. On 30 March 2011, the trial court informed both parties that it had granted Defendants' dismissal motion and directed Defendants' counsel to present a proposed order embodying this ruling. On 31 March 2011, before Defendants' counsel had submitted a proposed dismissal order to the trial court, Plaintiff filed a “Notice Of Voluntary Dismissal Pursuant To N.C. Gen.Stat. § 1A1, Rule 41(a)(l).” On 1 April 2011, Defendants filed a motion seeking a determination of the effect of Plaintiff's filing. On 18 April 2011, Plaintiff served a motion in which he requested the trial court to disqualify himself from further participation in this case and sought leave to withdraw the notice of dismissal.

The various motions filed by the parties were heard by the trial court during the 25 April 2011 term of Forsyth County Superior Court. On 28 April 2011, the trial court entered an order (1) denying Plaintiff's disqualification motion; (2) granting Plaintiff's amendment motion; (3) granting Defendants' dismissal motion and dismissing Plaintiff's amended complaint with prejudice; (4) determining that Plaintiff had dismissed his action with prejudice; and (5) denying Plaintiff's request for relief from his voluntary dismissal. Plaintiff noted an appeal to this Court from the trial court's order.

II. Legal Analysis
A. Standard of Review

“The standard of review of an order granting a [motion to dismiss pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) ] is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint's material factual allegations are taken as true. Dismissal is proper ‘when one of the following three conditions is satisfied: (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.’Burgin v. Owen, 181 N.C.App. 511, 512, 640 S.E.2d 427, 428–29 (citing Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 150 N.C.App. 231, 238, 563 S.E.2d 269, 274 (2002), and Oberlin Capital, L.P. v. Slavin, 147 N.C.App. 52, 56, 554 S.E.2d 840, 844 (2001), and quoting Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002)), disc. review denied,361 N.C. 425, 647 S.E.2d 98 (2007), cert. denied,361 N.C. 690, 652 S.E.2d 257 (2007). On appeal from an order granting a motion to dismiss for failure to state a claim, this Court “conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.” Page v. Lexington Ins. Co., 177 N.C.App. 246, 248, 628 S.E.2d 427, 428 (2006) (citation omitted).

B. Scope of Issues to be Determined on Appeal

Although the trial court dismissed Plaintiff's complaint, which asserted twenty-four claims against Defendants, in its entirety, Plaintiff only challenges the dismissal of the following claims:

VI (Tortious Conversion);

VII (Conspiracy to Convert or Cause Conversion);

XI (Breaches of Fiduciary Obligations);

X (Aiding and Abetting Breach of Fiduciary Obligations);

XI (Breach of Fiduciary Duty and Loyalty, etc.)

XVI (42 U.S.C. § 1983—Conspiracy, Deprivation of Due Process);

XVII (42 U.S.C. § 1988—Attorneys' Fees);

XIX (Racketeering 18 U.S.C. § 1962(c); and

XX (Racketeering Conspiracy 18 U.S.C. § 1962(d)).

As a result, our review of the trial court's order will be limited to an analysis of the validity of its decision to dismiss those claims.


C. Statute of Limitations

“A statute of limitation or repose may be the basis of a...

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  • Slate v. Byrd, 1:09CV852
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 15, 2013
    ...enumerated," and "[f]or relief on the ground of fraud," respectively); see also Eubank v. Van-Riel, No. COA11-1088, 727 S.E.2d 25 (table), 2012 WL 2308310, at *4 (N.C. App. June, 19, 2012) (unpublished) (discussing applicable statute of limitation for conversion and breach of fiduciary duty......

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