S.N.R. Management Corp. v. Danube Partners 141

• Decision Date: 15 April 2008
• Docket Number: No. COA07-434.,COA07-434.
• Citation: 659 S.E.2d 442
• Court: North Carolina Court of Appeals
• Parties: S.N.R. MANAGEMENT CORP., Plaintiff-Appellant v. DANUBE PARTNERS 141, LLC, James M. Adams, Sr., Rosa Belvin Properties, LLC, Miles C. Belvin, Howard Eugene Belvin, and Lee McGregor, Defendants-Appellees.

659 S.E.2d 442

S.N.R. MANAGEMENT CORP., Plaintiff-Appellant v. DANUBE PARTNERS 141, LLC, James M. Adams, Sr., Rosa Belvin Properties, LLC, Miles C. Belvin, Howard Eugene Belvin, and Lee McGregor, Defendants-Appellees.

No. COA07-434.

Court of Appeals of North Carolina.

April 15, 2008.

Appeal by plaintiff from orders entered 30 December 2004 by Judge Kenneth C. Titus in Durham County Superior Court. Heard in the Court of Appeals 31 October 2007.

Stark Law Group, PLLC, by Thomas H. Stark and Seth A. Neyhart, Chapel Hill, for plaintiff-appellant.

Williams Mullen Maupin Taylor, by Gilbert C. Laite, III, Kevin W. Benedict, and Heather E. Bridgers, Raleigh, for defendant-appellees

Danube Partners 141, LLC, and James M. Adams, Sr.

Hedrick Murray Kennett Mauch & Rogers, PLLC, by Josiah S. Murray, III & John C. Rogers, III, Durham, for defendant-appellees Rosa Belvin Properties, LLC, Miles C. Belvin, and Howard Eugene Belvin.

Boxley, Bolton, Garber & Haywood, LLP, by Ronald H. Garber, Raleigh, for defendant-appellee Lee McGregor.

CALABRIA, Judge.

S.N.R. Management Corporation ("plaintiff" or "purchaser") appeals from orders granting defendants' motions to dismiss and granting the motion to cancel the lis pendens of defendant Danube Partners, 141, LLC ("Danube"). We affirm.

On 17 April 2002, plaintiff executed a contract ("the contract" or "purchase contract") with Rosa Belvin Properties, LLC ("RBP" or "seller") and RBP's agents, Miles C. Belvin and Eugene Belvin (collectively, "the Belvin defendants") to purchase property for development. The contract named Lee McGregor Real Estate as one of the brokers entitled to a commission to be paid by the seller at closing. Lee McGregor ("McGregor") of Lee McGregor Real Estate served as plaintiff's real estate broker.

The property was located at the intersection of Danube Lane and Hebron Lane in Durham County, North Carolina. The purchase price for approximately 141.5 acres ("the property") was two million three hundred fifty-five thousand dollars ($2,355,000). The date for the original contract closing was contingent upon specified conditions stated as follows:

4. Provided all of the conditions set forth in Section 25 have been fulfilled to Purchaser's sole satisfaction, the closing of this transaction shall take place ... on the earlier of (i) April 15, 2003 or (ii) thirty (30) days after the Property has been rezoned as set forth in Section 25(a). If the closing has not occurred by April 15, 2003 solely because the conditions set forth in Section 25 have not been fulfilled to Purchaser's sole satisfaction, this Contract shall thereupon become null, void and of no further effect, the parties shall be relieved of all obligations hereunder, the Deposit shall be returned to the Purchaser and Purchaser shall deliver to Seller copies of all studies performed by Seller on the Property including, but not limited to, all site plans, engineering reports and environmental studies performed after the Examination Period, at no cost to Seller.

. . . .

25. Closing under this Contract is contingent upon all of the following:

a. Rezoning of the Property by the City/County of Durham to a zoning classification satisfactory to Purchaser and with zoning conditions reasonably satisfactory to Purchaser which permits Purchaser to construct single family dwellings, active adult housing, duplexes and fourplexes ("Rezoning"). Purchaser shall be responsible for all costs associated with the Rezoning. Seller shall cooperate fully with all rezoning efforts undertaken by Purchaser.

b. Approval of Purchaser's site plan, to Purchaser's sole satisfaction, by the appropriate governmental authorities.

c. No moratorium exists which limits the availability of public water and sewer service to the Property as Purchaser intends to develop it, which proposed development will be set forth on Purchaser's site plan.

Plaintiff and RBP extended the closing date on several occasions. RBP's attorney sent a letter to plaintiff stating plaintiff could exercise its options under sections 4 and 25 of the purchase contract. Plaintiff was unable to close on the designated date due to the possible existence of an endangered plant species ("the plant") on the property. Because of the plant, plaintiff sought to extend the closing date, but RBP was unwilling to grant any further extensions beyond 30 January 2004.

Prior to the resolution of the issue regarding the plant, although plaintiff continued efforts to negotiate with RBP to extend the closing date, RBP sold the property to Danube on 26 March 2004. On 31 March 2004, RBP conveyed the property to Danube for the purchase price of $2,355,000. On 30 September 2004, plaintiff filed a complaint against Danube, Adams, McGregor, and the Belvin defendants. Plaintiff also filed a lis pendens.

Plaintiff states in the complaint that during the time the property was under contract, plaintiff sought to resell the property to various users and retail developers in order to commence marketing the property. Specifically, representatives of plaintiff discussed selling a portion of the property to James M. Adams, Sr. ("Adams") for development. Plaintiff alleges that Adams formed the limited liability company, Danube Partners 141, LLC, for the purpose of purchasing the property. Plaintiff gave certain proprietary information to Adams during these discussions in order to assist Adams in evaluating the purchase of the property. Plaintiff contends that after Adams received this information, and knew of the contract between plaintiff and RBP, Adams or one of his agents, contacted RBP and offered to purchase the property for the same price plaintiff agreed to pay, but without any of the contractual conditions. Therefore, plaintiff argues Adams intentionally induced RBP not to perform under its contract with plaintiff.

Plaintiff contends that subsequent to the sale of the property by RBP to Danube, representatives of plaintiff met with Adams and agreed upon a purchase price for the property. At the time of the meeting, plaintiff had a contract to sell a portion of the property to a third party, NRP Southeast Properties, LLC ("NRP"). Plaintiff avers that subsequent to the initial agreement between plaintiff and Adams, Danube or Adams contacted NRP and offered to sell the portion of the property to NRP at a lower price than the price stated in the contract between NRP and plaintiff. NRP then terminated its contract with plaintiff and negotiated to purchase the property from Danube.

Plaintiff alleges that in February or March 2004, McGregor also contacted Adams and furnished information he received from plaintiff to Adams without plaintiff's knowledge or consent. Plaintiff contends that McGregor gave the materials to Adams in order to assist Adams in the purchase of the property, and that McGregor failed to notify plaintiff that Adams and RBP were negotiating the sale of the property.

The defendants responded to plaintiff's complaint with, inter alia, answers and motions to dismiss. Danube also filed a motion to cancel the lis pendens and counterclaimed for slander of title. On 30 December 2004, Judge Kenneth C. Titus in Durham County Superior Court granted defendants' motions to dismiss pursuant to North Carolina Rule of Civil Procedure 12(b)(6), as well as Danube's motion to cancel the lis pendens. The court also dismissed, sua sponte, all claims against the Belvin defendants pursuant to North Carolina Rule of Civil Procedure 12(c). On 27 January 2005, plaintiff gave notice of appeal. We dismissed the appeal as interlocutory due to Danube's outstanding counterclaim and remanded to the superior court.

On 31 July 2006, Danube dismissed its counterclaim with prejudice, and on 29 August 2006, plaintiff filed a second notice of appeal. We dismissed plaintiff's second appeal for violating the appellate rules. However, on 8 February 2007, we granted plaintiff's writ of certiorari pursuant to N.C.R.App. P. 21(a)(1) (2007), to review the court's judgment granting defendants' motions to dismiss and the judgment granting the motion to cancel the lis pendens.

On appeal, plaintiff argues the trial court erred by granting defendants' motions to dismiss. Specifically, plaintiff contends the trial court erred by granting defendants' motions to dismiss plaintiff's claims for: (1) breach of fiduciary duty; (2) unfair and deceptive trade practices; (3) fraud; (4) civil conspiracy; (5) breach of contract; (6) tortious interference with contract; and (7) tortious interference with prospective advantage. Plaintiff also contends the trial court erred by granting defendant Danube's motion to cancel the lis pendens.

I. Standard of review

Our standard of review on a motion to dismiss for failure to state a claim is de novo review. Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003). The Court must consider "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not." Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987) (citation omitted). Dismissal of a complaint is not proper "unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Block v. County of Person, 141 N.C.App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (citation omitted). "The issue is not whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claim." Brown v. Lumbermens Mut. Casualty Co., 90 N.C.App. 464, 471, 369 S.E.2d 367, 371 (1988).

II. Motions to dismiss concerning all defendants

We first address plaintiff's contention that the trial court erred by granting all defendants' motions to dismiss regarding plaintiff's claims for: (1) unfair and deceptive trade practices and (2) civil conspiracy.

a. Unfair and...