Silverdeer, LLC v. Berton
| Decision Date | 24 April 2013 |
| Docket Number | 11 CVS 3539 |
| Citation | 2013 NCBC 24 |
| Court | Superior Court of North Carolina |
| Parties | SILVERDEER, LLC; SILVERDEER BUILDERS, LLC; LAKEBOUND FIXED RETURN FUND, LLC; SILVERDEER MANAGEMENT, LLC; SILVERDEER CAROLINAS CARIBBEAN FUND I, LLC; PLANTATION PARTNERS, LLC; HOWARD A. JACOBSON, Plaintiffs v. ROBERT BERTON; ELDON BOLTON; ANDREA BURNS; EDWARD BURNS; CGR PARTNERS, LLC; STEVEN REINHARD; DALE CAREY; ROBERT GLOSSON; GAIL DWYER; STEPHEN DWYER; JAMES FARRELL; JANICE FARRELL; DANIEL GILLIS; WAYNE GOULD; ERIC M. LEVIN; BETSY SAWICKI; HOWARD SHAREFF; SHAREFF & ASSOCIATES DDS, PA; CONSTANCE UTECHT; MICHAEL UTECHT; ALAN WOLTMAN; RALPH J. DILEONE; VISIONQUEST WEALTH MANAGEMENT, LLC; VISIONQUEST CAPITAL, LLC and STEVEN C. PETERS, Defendants |
Howard A. Jacobson, Esq. for Plaintiffs.
Graebe, Hanna & Sullivan, PLLC, by Christopher T. Graebe, Esq. for Defendants Stephen C. Peters, VisionQuest Wealth Management, LLC and VisionQuest Capital, LLC.
Law Offices of James C. White, PC, by James C. White, Esq. and Michelle M. Walker, Esq. for Defendants Robert Berton, Gail Dwyer, Stephen Dwyer, James Farrell, Janice Farrell, Eric M. Levin, Howard Shareff, Constance Utecht and Michael Utecht.
Brown & Bunch, PLLC, by Charles Gordon Brown, Esq. and James R. Baker, Esq. for Defendants CGR Partners, LLC, Steven Reinhard, Dale Carey and Robert Glosson.
Manning, Fulton & Skinner, PA, by Robert S. Shields, Esq. and J. Whitfield Gibson, Esq. for Defendant Ralph J. DiLeone.
THIS CAUSE, designated a mandatory complex business case by Order of the Chief Justice of the North Carolina Supreme Court, pursuant to N.C. Gen. Stat. § 7A-45.4(b) (), and assigned to the undersigned Chief Special Superior Court Judge for Complex Business Cases, comes before the court upon (a) VisionQuest Defendants' Motion to Dismiss, (b) Berton Defendants' Motion to Dismiss, (c) CGR Defendants' Motion to Dismiss and (d) Defendant Ralph J. DiLeone's Motion to Dismiss and Motion for Judgment on the Pleadings (collectively, "Motions"), pursuant to Rules 12(b)(6) and 12(c), North Carolina Rules of Civil Procedure ("Rule(s)"); and
THE COURT, having considered the Motions, oral arguments, briefs in support of and in opposition to the Motions and other appropriate matters of record, CONCLUDES that the Motions should be GRANTED in part and DENIED in part for the reasons stated herein.
[1] On March 2, 2011, Plaintiffs SilverDeer, LLC ("SilverDeer"), SilverDeer Builders, LLC, Lakebound Fixed Return Fund, LLC ("Lakebound"), SilverDeer Management, LLC ("Management"), SilverDeer Carolinas Caribbean Fund I, LLC, Plantation Partners, LLC (collectively, "SilverDeer Companies") and Howard A. Jacobson ("Jacobson") filed a Complaint against Defendants Robert Berton, Eldon Bolton, Andrea Burns, Edward Burns, Gail Dwyer, Stephen Dwyer, James Farrell, Janice Farrell, Daniel Gillis, Wayne Gould, Eric M. Levin, Betsy Sawicki, Howard Shareff, Shareff & Associates DDS, PA, Constance Utecht, Michael Utecht, Alan Woltman (collectively, "Berton Defendants"), CGR Partners, LLC, Steven Reinhard, Dale Carey, Robert Glosson (collectively, "CGR Defendants"), VisionQuest Wealth Management, LLC, VisionQuest Capital, LLC and Steven C. Peters ("Peters") (collectively, "VisionQuest Defendants") and Ralph J. DiLeone ("DiLeone").
[2] The Complaint alleges ten causes of action ("Claim(s)"): First Cause of Action – Malicious Prosecution (by All Defendants except DiLeone); Second Cause of Action – Defamation (by all Defendants except DiLeone); Third Cause of Action – Fraud (by All Defendants); Fourth Cause of Action – Declaratory Judgment; Fifth Cause of Action – Negligence (by DiLeone); Sixth Cause of Action – Breach of Contract (by VisionQuest Defendants); Seventh Cause of Action – Fraud (by VisionQuest Defendants); Eighth Cause of Action – Breach of Fiduciary Duties (by Peters); Ninth Cause of Action – Unfair and Deceptive Trade Practices (by All Defendants); Tenth Cause of Action – Tortious Interference with Prospective Economic Advantage (by All Defendants).
[3] On May 6, 2011, VisionQuest Defendants filed a Motion to Dismiss ("VisionQuest Motion"), seeking dismissal of the entirety of the Complaint as alleged against them, pursuant to Rule 12(b)(6).
[4] On May 6, 2011, Berton Defendants filed a Motion to Dismiss ("Berton Motion"), seeking dismissal of the entirety of the Complaint as alleged against them, pursuant to Rule 12(b)(6).[1]
[5] On May 13, 2011, CGR Defendants filed a Motion to Dismiss ("CGR Motion"), seeking dismissal of the entirety of the Complaint as alleged against them, pursuant to Rule 12(b)(6).
[6] On May 10, 2011, DiLeone filed his Answer, which also contains a motion for dismissal of the Complaint as to him, pursuant to Rule 12(b)(6). On June 10, 2011, DiLeone also filed a Motion for Judgment on the Pleadings (collectively, DiLeone's Rule 12(b)(6) and Rule 12(c) motions are referred to herein as the "DiLeone Motion").
[7] Subsequently, all Defendants filed separate motions to stay discovery until determination of the pending Rule 12 Motions.
[8] On August 11, 2011, the court entered an Order granting Defendants' motions to stay discovery.
[9] The court heard oral arguments on the Motions. At the hearing, the court announced orally its rulings on the Motions with respect to certain Claims and Defendants. Those previous rulings are reflected herein.
[10] On March 22, 2012, Plaintiffs filed a Motion to Lift Stay on Discovery. On March 23, 2012, the court entered an Order lifting the stay on discovery, limited to Claims and Defendants not dismissed orally at the hearing on the Motions.
[11] The Motions have been fully briefed and are ripe for determination.
Among other things, the Complaint alleges that:
[12] This case arises out of two previous civil actions filed by a majority of the named Defendants, their managers and related companies.
[13] The two previous actions are captioned Berton, et al. v. Jacobson, et al., Wake County No. 09 CVS 10870 ("Berton Action") and Shareff v. Lakebound Fixed Return Fund LLC, et al., Wake County No. 09 CVS 9983 ("Shareff Action") () (collectively, "Previous Actions").[2] All Plaintiffs in this action were named defendants in the Berton Action. Plaintiffs SilverDeer, Management, Lakebound and Jacobson in this action were named defendants in the Shareff Action.
[14] The Previous Actions were based on alleged mismanagement that resulted in a failed multimillion dollar real estate investment project.
[15] All Defendants in this action, with the exception of DiLeone, acted in concert and by agreement to file the Previous Actions.[3] Further, Defendants knew the allegations to be materially false and lacking probable cause at the relevant time.[4]
[16] In March of 2010, certain Defendants in this action (those who were plaintiffs in the Previous Actions) entered into settlement negotiations with counsel for Richard Deckelbaum ("Deckelbaum"), a member-manager of SilverDeer.[5] Deckelbaum retained DiLeone, who served as his counsel during the relevant settlement negotiation time period.
[17] Deckelbaum was one of SilverDeer's two member-managers (Jacobson was the other member-manager), and Deckelbaum purportedly had the authority, under SilverDeer's operating agreement, to bind the company in a settlement.
[18] Those negotiations resulted in Deckelbaum signing settlement agreements ("Settlement Agreements") with on behalf of SilverDeer for the purported settlement with certain plaintiffs in the Previous Actions ("Settlement").[6]
[19] Defendants knew that SilverDeer was represented in the Previous Actions by separate counsel and did not consult with SilverDeer's counsel during the Settlement negotiations with Deckelbaum.[7]
[20] Certain Defendants voluntarily dismissed their Claims in the Previous Actions based upon the procurement of the purported Settlement with SilverDeer.
[21] Plaintiffs in this action (SilverDeer Companies and Jacobson) now allege various tort-based Claims, among other things, against Defendants, arising from the filing and purported Settlement of the Previous Actions.
[22] All Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(6), which is appropriate when the complaint fails to state a claim upon which relief can be granted.
[23] When deciding a Rule 12(b)(6) motion, the well-pleaded allegations of the complaint are taken as true and admitted, but conclusions of law or unwarranted deductions of facts are not admitted. Sutton v. Duke, 277 N.C. 94, 98 (1970).
[24] A complaint fails to state a claim upon which relief can be granted when either (a) the complaint on its face reveals that no law supports the plaintiff's claim, (b) the complaint on its face reveals the absence of facts sufficient to make a good claim or (c) some fact disclosed in the complaint necessarily defeats the plaintiff's claim. Jackson v. Bumgardner, 318 N.C. 172, 175 (1986). However, a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it (a) does not give sufficient notice to the defendant of the nature and basis of the plaintiff's claim or (b) appears beyond a reasonable doubt that the plaintiff could not prove any set of facts in support of his claim that would entitle him to relief. Sutton, 277 N.C. at 108.
[25] Defendant DiLeone also seeks dismissal of the Complaint pursuant to Rule 12(c), which is appropriate after the pleadings are closed and when the movant establishes that "no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law." Groves v. Cmty. Hous. Corp. of Haywood Cnty., 144 N.C.App. 79, 86-87 (2001) (citing Minor v. Minor, 70 N.C.App. 76, 78 (1984)). Further, the court w...
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