{ "id": 4156213, "name": "BLUEBIRD CORPORATION and ANTHONY A. SUSI, Plaintiffs v. LOIS A. AUBIN, Defendant", "name_abbreviation": "Bluebird Corp. v. Aubin", "decision_date": "2008-02-19", "docket_number": "No. COA07-282", "first_page": "671", "last_page": "686", "citations": [ { "type": "official", "cite": "188 N.C. App. 671" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "612 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632831 ], "year": 2005, "pin_cites": [ { "page": "441", "parenthetical": "internal citation and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0438-01" ] }, { "cite": "651 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639640 ], "year": 2007, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0594-01" ] }, { "cite": "647 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638971 ], "year": 2007, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0651-01" ] }, { "cite": "15 A.D.3d 301", "category": "reporters:state", "reporter": "A.D.3d", "case_ids": [ 843334 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "302", "parenthetical": "determining plaintiffs who brought a cause of action for breach of fiduciary duty against their defendant attorney who had withdrawn from representation needed to plead damages for a valid claim" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ad3d/15/0301-01" ] }, { "cite": "516 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "649" }, { "page": "649" }, { "page": "649" } ], "opinion_index": 0 }, { "cite": "134 N.C. 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App.", "case_ids": [ 8521256 ], "year": 1988, "pin_cites": [ { "page": "235", "parenthetical": "\"Credibility, contradictions, and discrepancies in the evidence are matters to be resolved by the trier of fact, here the trial judge, and the trier of fact may accept or reject the testimony of any witness.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0232-01" ] }, { "cite": "280 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571975, 8572010, 8571948, 8572045, 8571922 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0180-03", "/nc/303/0180-04", "/nc/303/0180-02", "/nc/303/0180-05", "/nc/303/0180-01" ] }, { "cite": "275 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643360 ], "year": 1981, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0103-01" ] }, { "cite": "170 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. 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Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "519 U.S. 213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11595311 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "224" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/us/519/0213-01" ] }, { "cite": "457 U.S. 624", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192977 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "645" }, { "page": "285" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/us/457/0624-01" ] }, { "cite": "455 U.S. 691", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11307431 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "704", "parenthetical": "citation and internal quotations omitted" }, { "page": "570", "parenthetical": "citation and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/455/0691-01" ] }, { "cite": "577 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "156 N.C. 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App.", "case_ids": [ 11465738 ], "year": 1998, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0135-01" ] }, { "cite": "186 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157508 ], "year": 2007, "pin_cites": [ { "page": "435-36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0431-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "571 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citing Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (4986)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511608, 1511289, 1511570, 1511500 ], "year": 2002, "pin_cites": [ { "parenthetical": "citing Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (4986)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0437-04", "/nc/356/0437-02", "/nc/356/0437-01", "/nc/356/0437-03" ] }, { "cite": "567 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "211", "parenthetical": "citing Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (4986)" }, { "page": "211" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249645 ], "year": 2002, "pin_cites": [ { "page": "230", "parenthetical": "citing Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (4986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0228-01" ] }, { "cite": "361 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741762, 3743978, 3746954, 3738481, 3742833, 3742683, 3743389 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0692-04", "/nc/361/0692-07", "/nc/361/0692-02", "/nc/361/0692-05", "/nc/361/0692-06", "/nc/361/0692-01", "/nc/361/0692-03" ] }, { "cite": "185 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208355 ], "year": 2007, "pin_cites": [ { "page": "9-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0001-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "805", "parenthetical": "internal quotations omitted" }, { "page": "805" }, { "page": "805" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "130", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "368 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "853-54" }, { "page": "853-54" }, { "page": "853-54" } ], "opinion_index": 0 }, { "cite": "322 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512874 ], "year": 1988, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0331-01" ] }, { "cite": "598 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "579" }, { "page": "579" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995613 ], "year": 2004, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0001-01" ] }, { "cite": "574 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "356 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511470, 1511275, 1511283, 1511174 ], "year": 2002, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0610-02", "/nc/356/0610-04", "/nc/356/0610-03", "/nc/356/0610-01" ] }, { "cite": "560 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2002, "pin_cites": [ { "page": "877", "parenthetical": "emphasis added" }, { "page": "877" }, { "page": "878" }, { "page": "878" }, { "page": "878" }, { "page": "877" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127650 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "321-22", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0320-01" ] } ], "analysis": { "cardinality": 1247, "char_count": 36654, "ocr_confidence": 0.733, "pagerank": { "raw": 1.7212468232409733e-07, "percentile": 0.7039732818399838 }, "sha256": "70137710b634d0636b54c20d2af0cf531aea126493757a5209fda9cf83930df5", "simhash": "1:8baa152f32bbcc63", "word_count": 6059 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ARROWOOD concur." ], "parties": [ "BLUEBIRD CORPORATION and ANTHONY A. SUSI, Plaintiffs v. LOIS A. AUBIN, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff Susi and defendant Aubin are each fifty percent shareholders in Bluebird Corporation. Bluebird Corporation and Susi sued Aubin for breach of fiduciary duty, constructive fraud, and breach of contract. Aubin counterclaimed for breach of fiduciary duty, constructive fraud, and requested a declaratory judgment to determine whether certain loans were the lawful obligations of Bluebird Corporation. The trial court ordered, inter alia, all Susi\u2019s claims against Aubin dismissed with prejudice and that Bluebird Corporation should recover $1,175,000.00 from Susi for his breach of fiduciary duty. Susi appeals. For the following reasons, we affirm.\nI. Background\nThe parties involved in this action have had a contentious and litigious relationship over the past decade. Recitation of the entire history of the parties\u2019 previous and current lawsuits in both North Carolina and New York is not necessary to the determination of this action, and thus only the relevant facts are summarized below:\n[Aubin] and Susi are each fifty percent shareholders of Bluebird [Corporation], a New York corporation formed in 1997 to purchase and sell commercial property. [Aubin] and Susi had a written agreement whereby Susi would loan money to Bluebird to acquire or improve property, and [Aubin] would assist in day to day business operations, including the marketing of Bluebird properties. [Aubin] alleged that in January 1998, she discovered the Harborgate development as a potential property for Bluebird to acquire. Both [Aubin] and Susi visited the property, and negotiations for Bluebird\u2019s purchase of Harborgate commenced. In July 1998, Bluebird purchased four lots in Harborgate, and retained an option to purchase the remaining lots.\nA closing for the purchase of Harborgate was set for 15 January 1999. [Aubin] alleged that when she arrived at the closing, Susi and Bluebird\u2019s attorney explained to her that they were going to close the property through a new North Carolina corporation, The Susi Corporation, which had been formed at the last minute. They explained that Bluebird would execute the purchase agreement, which would then be assigned to The Susi Corporation. [Aubin] did not object, although there was no discussion as to what the distribution of shares would be in the new corporation. [Aubin] assumed The Susi Corporation would either be owned by Bluebird, or that she and Susi would be fifty-fifty owners of The Susi Corporation. Susi advanced the entire purchase price for acquisition of Harborgate.\nIn reality, [Aubin] had no interest in The Susi Corporation, and thus, no interest in Harborgate. [Aubin] alleged she did not discover that Susi was the sole owner of The Susi Corporation until 1 March 1999. According to [Aubin], Susi never mentioned before the day of closing that Harborgate would be purchased by a North Carolina corporation, and Susi never told her she was not a fifty percent share []holder in The Susi Corporation. Susi refused [Aubin\u2019s] demand to immediately give her a fifty percent ownership interest in The Susi Corporation.\nAubin v. Susi, 149 N.C. App. 320, 321-22, 560 S.E.2d 875, 877, disc. rev. denied, 356 N.C. 610, 574 S.E.2d 474 (2002) (emphasis added).\nOn 19 March 1999, Aubin brought an action in North Carolina against Susi, New Harborgate Corporation, and Bluebird Corporation (\u201cBluebird\u201d). Id. at 322, 560 S.E.2d at 877. Aubin\u2019s amended complaint \u201calleged claims of conversion, constructive fraud, usurpation of corporate opportunity, fraud, unfair and deceptive practices, and breach of contract. [Aubin\u2019s] amended complaint averred that she was filing the suit both in an individual capacity and derivatively in her capacity as a shareholder of Bluebird.\u201d Id. at 322-23, 560 S.E.2d at 878.\nIn May 2000, before trial had begun, Susi transferred the Harborgate property to Bluebird. Id. at 323, 560 S.E.2d at 878. As a result of the transfer Aubin abandoned most of her derivative claims. Id. The trial court, inter alia, granted a directed verdict in favor of defendants. Id. Aubin appealed. Id. Among other things this Court determined that \u201c[Aubin] . . . ha[d] failed to show that any damage which she ha[d] sustained as a result of Susi\u2019s actions [were] different from that sustained by Bluebird, and therefore, [Aubin] [did] not have standing to maintain a direct action against defendants for individual recovery.\u201d Id. at 324, 560 S.E.2d at 878.\nConcurrent with the North Carolina litigation described above, on or about 7 October 1999, in New York, Susi initiated an action against Aubin, Red Aves Corporation (\u201cRed Aves\u201d), and Bluebird. On or about 10 November 1999, Aubin, Red Aves, and Bluebird counterclaimed for breach of agreement because Susi had failed \u201cto sign checks for payment of invoices associated with the repair, maintenance and administrative costs of the properties[;]\u201d and these actions put the New York properties into jeopardy. The New York litigation resulted in several intermediary procedural decisions. Both parties stipulated to the appointment of a receiver. At the conclusion of the New York litigation on the trial level, the New York court had addressed Susi\u2019s claims and approved the sale of certain New York properties owned by Bluebird. However, no judgment, order, stipulation, or other document prior to this case and presently in the record before us explicitly addressed and disposed of Aubin\u2019s New York counterclaim against Susi for breach of agreement.\nOn 30 August 2004, at the time of the filing of this action, the Harborgate property was subject to a consent judgment, modified consent judgment, and order (collectively hereinafter referred to as \u201cHomeowners\u2019 Judgment\u201d) from North Carolina. Bluebird and Susi have also been sued in North Carolina for damages for failing to meet the requirements of the Harborgate Homeowners\u2019 Judgment.\nIn the present case, Susi alleged in his 26 January 2006 verified amended complaint the following: \u201cBluebird has not been able to timely fulfill all of the obligations set out in the Homeowners\u2019 Judgment because it has not had sufficient funds to do so. Bluebird has been unable to meet its current financial obligations to creditors.\u201d On 23 August 2004, an attorney in a separate action announced in open court that Aubin had received an offer to purchase Harborgate.\nOn or about 24 August 2004, Aubin\u2019s counsel contacted Susi and Bluebird\u2019s counsel to report that Aubin had secured an offer to purchase Harborgate for $5 million, plus $800,000.00 to meet the requirements of the Homeowners\u2019 Judgment. Aubin\u2019s counsel also stated that Aubin would not reveal the identity of the party making the offer or \u201cpursue delivery of a proposed contract of sale\u201d unless Susi first agreed to pay her $1 million from the sale. Susi declined Aubin\u2019s proposal and offered that upon payment of Bluebird\u2019s debts the remaining amount would be split between them evenly. Susi and Aubin failed to reach any agreement.\nBluebird and Susi claimed that Aubin had breached her fiduciary duty, committed constructive fraud, and breached her contract. Bluebird and Susi also brought an alternative derivative claim. Bluebird and Susi requested that the trial court, inter alia, issue a temporary restraining order and a preliminary injunction against Aubin to prevent her from breaching her fiduciary duties and remove her as a director of Bluebird.\nIn her answer and counterclaim Aubin claimed that when she found out that Susi was the sole shareholder of the Susi Corporation, she requested that he transfer fifty percent of the stock to her. When Aubin said that she would obtain legal counsel to pursue her rights in the Harborgate property, Susi \u201cthreatened that if she did, everything would come to a screeching halt, he would foreclose on all his demand notes on the New York properties, and he would dry her up.\u201d Aubin claims Susi \u201cset out on a course of conduct with the specific intent to depreciate the value of the New York properties. He caused the New York properties to be placed into receivership and sold. He then purchased those properties at a price substantially less than they were worth.\u201d Aubin and Susi had an oral agreement whereby she would receive a $5,000.00 draw against her share of future profits. Susi cut off Aubin\u2019s draw which forced her to seek other employment. When Susi did finally transfer the Harborgate property to Bluebird, he had wrongfully placed a $926,000.00 deed of trust in his own favor on the Harborgate property. On these alleged facts, Aubin counterclaimed against Susi in the present case as a derivative action for, inter alia, breach of fiduciary duty, constructive fraud, dissolution and appointment of receiver.\nThe North Carolina trial court ordered, inter alia, that all claims against Aubin be dismissed with prejudice and that Bluebird recover $1,175,000.00 from Susi for his breach of fiduciary duty and constructive fraud. Susi appeals. Susi presents four questions before this Court: (1) Whether the North Carolina trial court erred in \u201coverturning\u201d the decision of a New York court which approved the sale of New York properties owned by Bluebird Corporation when the issues raised by Aubin at trial in North Carolina in reference to that sale were barred from reconsideration in North Carolina by collateral estoppel, res judicata, the Full Faith and Credit Clause, and the internal affairs doctrine; (2) whether the North Carolina trial court erred in finding Susi liable to Bluebird when the sale of New York properties was determined to be fair to Bluebird and was approved by a New York court; (3) whether the North Carolina trial court erred in awarding damages based on the sale of the New York properties when Aubin presented no admissible evidence as to a different value for the New York properties; and (4) whether the North Carolina trial court erred in finding that Aubin did not breach her fiduciary duty to Bluebird Corporation.\nII. Reconsideration of Approved Sale\nSusi assigns error to the trial court \u201coverturning\u201d the New York court\u2019s decision which approved the sale of New York properties owned by Bluebird because reconsideration of the sale was barred by collateral estoppel, res judicata, the Full Faith and Credit Clause, and the internal affairs doctrine. We disagree.\nWe must first address which state\u2019s law should be applied to determine whether the North Carolina trial court improperly reconsidered the New York court\u2019s decision. \u201cA trial court\u2019s application of North Carolina\u2019s conflict of law rules is a legal conclusion which this Court reviews under a de novo standard.\u201d Stetser v. TAP Pharm. Prods., Inc., 165 N.C. App. 1, 14, 598 S.E.2d 570, 579 (2004).\nNorth Carolina\u2019s \u201ctraditional conflict of laws rule is that matters affecting the substantial rights of the parties are determined by . . . the law of the situs of the claim, and remedial or procedural rights are determined by... the law of the forum.\u201d Boudreau v. Baughman, 322 N.C. 331, 335, 368 S.E.2d 849, 853-54 (1988). A substantial right is \u201ca legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right.\u201d Oestreicher v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (internal quotations omitted). Whether a claim or issue is being relitigated is a procedural issue and is not \u201ca legal right affecting or involving a matter of substance[,]\u201d see id, and thus North Carolina law applies to procedural issues as it is the forum state. See Boudreau at 335, 368 S.E.2d at 853-54; Oestreicher at 130, 225 S.E.2d at 805.\nA. Collateral Estoppel\nWhether a North Carolina court is barred from hearing a specific claim or issue is a question of law unrelated to any specific facts of a case. Questions of law are reviewed de novo. Hospice at Greensboro, Inc. v. N.C. Dep\u2019t of Health & Human Servs., 185 N.C. App. 1, 9-10, 647 S.E.2d 651, 657, disc. rev. denied, 361 N.C. 692, \u2014 S.E.2d - (2007).\nThe elements of collateral estoppel, as stated by our Supreme Court, are as follows: (1) a prior suit resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.\nMcDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. rev. denied, 356 N.C. 437, 571 S.E.2d 222 (2002) (citing Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (4986)). The burden of establishing that a claim is barred by collateral estoppel is on the party relying upon the doctrine. See Morris v. Moore, 186 N.C. App. 431, 435-36, 651 S.E.2d 594, 598 (2007).\nIn the present case Susi failed to establish the requisite elements required for a valid defense of collateral estoppel. Susi contends that the New York decision which approved the sale of New York properties owned by Bluebird effectively disposed of Aubin\u2019s counterclaims in that lawsuit, which he argues are identical to her counterclaims in the present case. Although the record before us does not contain all of the documents from the New York litigation, it does contain many of them, presumably those counsel deemed necessary for the Court\u2019s understanding of this issue. However, upon careful review of the orders entered in the New York litigation, we find no indication of \u201ca final judgment on the merits\u201d of the issues in Aubin\u2019s New York counterclaims, which would demonstrate that Aubin\u2019s issues were \u201cactually litigated and necessary to the judgment\u201d or that \u201cthe issue was actually determined.\u201d See McDonald at 230, 567 S.E.2d at 211. In fact, the only place Aubin\u2019s New York counterclaims are ever mentioned within the record before us is in her answer to the New York complaint.\nIt is possible that Aubin failed to prosecute her counterclaim in New York or that the New York court simply failed to mention that by approving the sale of the New York properties it was implicitly denying Aubin\u2019s claims as to improper conduct on the part of Susi. However, this sort of speculation as to what may have or could have happened in the New York litigation is not sufficient for us to conclude that the elements of collateral estoppel have been established. Based upon the record before us, Susi has failed to demonstrate that Aubin\u2019s claims are collaterally estopped by the New York orders.\nB. Res Judicata\nRes judicata is also a procedural question of law to be reviewed de novo pursuant to North Carolina law. See Stetser at 14, 598 S.E.2d at 579; Boudreau at 335, 368 S.E.2d at 853-54; see also Oestreicher at 130, 225 S.E.2d at 805. \u201cThe essential elements of res judicata are:(l) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in the prior suit and the present suit; and (3) an identity of parties or their privies in both suits.\u201d Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61, disc. rev. denied, 349 N.C. 228, 515 S.E.2d 700 (1998). As with collateral estoppel, the burden of establishing res judicata is on the party relying upon the doctrine. See Beall v. Beall, 156 N.C. App. 542, 545, 577 S.E.2d 356, 359 (2003). However, just as we determined in our collateral estoppel analysis, the record contains no final judgment on the merits as to Aubin\u2019s counterclaim in New York. Therefore, we conclude Susi has failed to establish the elements of res judicata.\nC. Full Faith and Credit Clause\n\u201cFull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.\u201d U.S. Const, art. IV, \u00a7 1. \u201c[T]he judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.\u201d Underwriters Nat. Assur. v. N.C. Life & ACC, Etc., 455 U.S. 691, 704, 71 L. Ed. 2d 558, 570 (1982) (citation and internal quotations omitted).\nThe record in this case includes an order issued by New York Supreme Court Justice Hugh A. Gilbert on 15 February 2002. Judge Gilbert\n[o]rdered that the Plaintiff\u2019s Motion for approval of the purchase offer of all assets of Bluebird Corporation and Red Aves Corporation located in New York State [be] granted; and . . . further\n[ojrdered that the Receivership established by Order of the Honorable Hugh A. Gilbert dated January 14, 2000 and modified by Stipulation and Order entered with the Jefferson County Clerk on April 19, 2000 be further modified to authorize the Receiver, Joseph Rizzo to execute such documents as are required, including a Receiver\u2019s Deed, to effect the sale of the property described at Schedule \u201cA\u201d to the Order filed with the Jefferson County Clerk\u2019s Office on February 1, 2000 as described in the Motion.\nThough we agree with Susi\u2019s contention that this New York order approves the sale of New York properties, we do not agree that the North Carolina trial court has \u201coverturned\u201d this order by addressing Aubin\u2019s counterclaims of breach of fiduciary duty and constructive fraud and awarding Bluebird damages pursuant to those findings. The New York court approved the sale of New York properties, but did not dispose of or address Aubin\u2019s counterclaims. As we have no indication in the record that the North Carolina trial court addressed a claim which was previously addressed by the New York court, Susi\u2019s argument as to violation of the Full Faith and Credit Clause is without merit.\nD. Internal Affairs Doctrine\nThe internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation\u2019s internal affairs \u2014 matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders \u2014 because otherwise a corporation could be faced with conflicting demands.\nEdgar v. MITE Corp. 457 U.S. 624, 645, 73 L. Ed. 2d 269, 285 (1982). \u201cStates normally look to the State of a business\u2019 incorporation for the law that provides the relevant corporate governance general standard of care.\" Atherton v. F.D.I.C., 519 U.S. 213, 224, 136 L. Ed. 2d 656, 668 (1997).\nA rule of law similar to the internal affairs doctrine can be found at North Carolina General Statute \u00a7 55-7-47 which provides that\n[i]n any derivative proceeding in the right of a foreign corporation, the matters covered by this Part shall be governed by the laws of the jurisdiction of incorporation of the foreign corporation except for the matters governed by G.S. 55-7-43, 55-7-45, and 55-7-46.\nN.C. Gen. Stat. \u00a7 55-7-47 (2003). Accordingly, the trial court applied New York law in its judgment.\nSusi argues the \u201cinternal affairs doctrine\u201d as a jurisdictional issue which would leave North Carolina courts devoid of authority to render a decision in this case. Since Susi and Bluebird are the parties who brought this lawsuit in North Carolina, it seems odd that Susi would then argue that North Carolina does not have jurisdiction to decide the case. Yet we also recognize that parties cannot confer jurisdiction upon the court, even by agreement. See Degree v. Degree, 72 N.C. App. 668, 670, 325 S.E.2d 36, 37, disc. rev. denied, 313 N.C. 598, 330 S.E.2d 607 (1985). However, the internal affairs doctrine as defined by the United States Supreme Court is a \u201cconflict of laws principle!)]\u201d Edgar at 645, 73 L. Ed. 2d at 285. It is not a jurisdictional principle. Here the trial court plainly and correctly used New York law to render its judgment. The trial court did not use North Carolina law to determine this case involving a New York corporation. In this case we have no conflict of laws issue, so Susi\u2019s argument as to the internal affairs doctrine is without merit.\nSusi\u2019s argument that the North Carolina trial court erred by \u201coverturning\u201d a New York court decision is therefore without merit, as the North Carolina trial court did not \u201coverturn\u201d the New York Court\u2019s decision. Accordingly, these assignments of error are overruled.\nIII. Fairness of New York Properties Sale\nSusi next argues that the North Carolina trial court erred in determining that the sale of the New York properties was unfair when the New York court had already determined the sale to be fair and the evidence established the fairness of the sale. Susi specifically directs this Court\u2019s attention to the language of the North Carolina judgment where the trial court found that\nSusi\u2019s conduct in this case, i.e., the timing and manner of his debt enforcement at a time with [sic] the New York properties were cash flow positive and there was, by his own statement, a lot of equity in the properties for no other reason than to deprive Aubin of any possibility of realizing any profit for her work in finding and managing the properties, and in taking actions to depreciate the properties and acting in collusion to buy the properties at a private sale go far beyond common decency and honesty.\nWe note that the North Carolina judgment does not in any way question the fairness of the New York sale, but instead the trial court addresses Susi\u2019s conduct, which depreciated the properties, contributing to the low sales price as approved by the New York court. The North Carolina trial court\u2019s judgment does not analyze the fairness of the sale of the New York properties, but only Susi\u2019s conduct in relation to it. Based upon the record before us, as noted above, the New York court only approved the sale of the New York properties and did not \u00bfddress Susi\u2019s conduct which Aubin claims depreciated the properties, thus making it necessary to sell the properties for less. The New York court approved the sale and the North Carolina trial court addressed Susi\u2019s fiduciary duties to the corporation; the North Carolina court did not address the \u201cfairness\u201d of the sale. Susi\u2019s argument is meritless.\nIV. Award of Damages\nNext Susi argues that the trial court erred by awarding damages to Bluebird because (1) the New York court had already determined the price for the sale of the New York properties to be fair and therefore Bluebird was not damaged by the sale, and (2) Aubin did not introduce any competent evidence establishing a sales price for the New York properties other than what the New York court found to be \u201cfair\u201d.\nA. Bluebird Not Damaged by Sale\nAs we have previously stated, the trial court did not award Bluebird damages because it determined the sales price of the New York properties to be \u201cunfair\u201d, but instead awarded damages to Bluebird because Susi breached his fiduciary duties and committed constructive fraud upon the corporation in his dealings with the New York properties. In other words, the sale of the New York properties did not damage Bluebird; Susi\u2019s breach of fiduciary duties and constructive fraud damaged Bluebird.\nB. Admission of Aubin\u2019s Testimony\nSusi\u2019s argument as to the inadmissability of Aubin\u2019s testimony is based upon his contention that during the course of the New York litigation Aubin gave a different number in her affidavit as to the value of the New York properties than she did in her trial testimony in North Carolina. On 15 August 2000, Aubin submitted an affidavit during the New York litigation stating that the total fair market value of the New York properties was $1,215,000.00 at the time of the affidavit. During the North Carolina trial in September of 2006 Aubin was asked to give an opinion on the \u201creasonable fair market value of . . . [the] property immediately prior to the disputes with Mr. Susi and his withdrawing payments for the on-going maintenance [.]\u201d Aubin testified to the value of each parcel of the New York properties individually, and the trial court found that the total value of the New York properties was $1,625,000.00, or $410,000.00 more than Aubin had stated in her New York affidavit approximately six years earlier. Susi argues that this discrepancy in numbers evidences Aubin\u2019s self-serving bias and unreliability in testifying, rendering her testimony as to the value of the properties inadmissible. Susi also argues that because of Aubin\u2019s testimony the trial court improperly included certain New York properties in the total property value, though not all of the New York properties owned by Bluebird were included in the sale approved by the New York court. We do not agree with Susi\u2019s contentions.\n\u201cThe balance struck by the trial court regarding the admissibility of evidence will not be disturbed on appeal absent a clear showing the court abused its discretion by admitting, or excluding, the contested evidence. A trial court abuses its discretion when its decision lacks any basis in reason.\u201d City of Charlotte v. Ertel, 170 N.C. App. 346, 348, 612 S.E.2d 438, 441 (2005) (internal citation and internal quotations omitted).\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 701. \u201cAny witness, not necessarily an expert, may give h[er] opinion of the value of specific real property if [s]he has knowledge gained from experience, information, and observation.\u201d Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275, disc. rev. denied, 303 N.C. 180, 280 S.E.2d 452 (1981).\nAt trial, Aubin was asked to give an opinion as to the values of the New York real properties owned by Bluebird. Aubin and Susi had been managing these properties for approximately a decade by the time of trial in North Carolina. In addition, Aubin was licensed in real estate sales in the state of New York in 1985 and received her broker\u2019s license in 1988. Aubin testified that she had been selling real estate since 1985. Aubin did not testify as an expert witness, but rather as a lay witness as to her opinion of the value of the properties. The trial court did not abuse its discretion in admitting the testimony of Aubin as to her opinion of the value of the New York properties, considering her extensive real estate background and specific knowledge of the properties owned by a corporation in which she is a fifty percent shareholder. See id. The trial court did not abuse its discretion in determining Aubin\u2019s testimony was \u201crationally based on the perception of the witness and . . . helpful to a clear understanding of h[er] testimony or the determination of a fact in issue.\u201d See N.C. Gen. Stat. \u00a7 8C-1, Rule 701.\nAs to the discrepancy in the amount of the total values of the New York properties as stated in the 2000 affidavit and in Aubin\u2019s trial testimony, the New York affidavit is clearly worded that the totals were determined \u201cat this time\u201d which was 15 August 2000. At the trial in North Carolina Aubin was asked to render an opinion as to the value of the properties before her dispute with Susi. The dispute about Harborgate arose in March of 1999 when Aubin discovered she had no interest in Harborgate, and thus Aubin\u2019s trial testimony related to the value of the properties prior to March of 1999. Assuming Aubin\u2019s contentions are true, and Susi was depreciating the value of the New York properties by refusing to properly maintain them, it would make sense that her opinion as to the value of the properties would change from March of 1999 to August of 2000, and indeed that the value of the properties would continue to decline as time went on, to the amount for which it was ultimately sold by the receiver. Furthermore, discrepancies in testimony are not an issue of admissibility, but rather of credibility. See Smith v. Smith, 89 N.C. App. 232, 235, 365 S.E.2d 688, 691 (1988) (\u201cCredibility, contradictions, and discrepancies in the evidence are matters to be resolved by the trier of fact, here the trial judge, and the trier of fact may accept or reject the testimony of any witness.\u201d). We therefore do not find the trial court\u2019s admission of Aubin\u2019s testimony as to the value of the properties to be an abuse of discretion.\nAs to the specific New York properties which Susi claims the trial court improperly included in its award for damages because they were not part of the properties approved for the sale in New York, we once again note that the North Carolina trial court was not reassessing the sale as approved by the New York court, but instead addressing whether Susi had breached his fiduciary duty or committed constructive fraud upon Bluebird. Whether the properties were sold or not does not change the fact that the properties may have been damaged due to Susi\u2019s breach of his fiduciary duties.\nThis argument is overruled.\nV. Aubin\u2019s Fiduciary Duty\nLastly, Susi argues the trial court erred in determining Aubin did not breach her fiduciary duty when she refused to reveal the identity of a prospective buyer to Bluebird and by failing to attend board meetings. We disagree.\nA. Refusing to Reveal Prospective Purchaser\u2019s Identity\nThe trial court determined that Aubin did not breach her fiduciary duty by failing to disclose the identity of a prospective buyer for Harborgate, but that \u201c[i]n any event, the matter became moot when Aubin put the prospective purchaser in touch with Susi and there is no evidence of any damage to Bluebird.\u201d Susi failed to assign error to the trial court\u2019s conclusion as to the lack of evidence of damage to Bluebird.\n\u201cThe appellant must assign error to each conclusion it believes is not supported by the evidence. N.C.R. App. P. 10. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts.\u201d Fran\u2019s Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). In Parametric Capital Mgmt., LLC v. Lacher, the court determined that a claim for breach of fiduciary duty only \u201cripens\u201d when damages are alleged. 15 A.D.3d 301, 302 (N.Y. App. Div. 2005) (determining plaintiffs who brought a cause of action for breach of fiduciary duty against their defendant attorney who had withdrawn from representation needed to plead damages for a valid claim). Based upon the unchallenged finding of the trial court that there was \u201cno evidence of any damage to Bluebird\u201d, there is no valid claim for breach of fiduciary duty by Aubin. See Parametric Capital Mgmt., LLC, 15 A.D.3d at 302; Fran\u2019s Pecans, Inc. at 112, 516 S.E.2d at 649.\nB. Attending Meetings\nSusi also argues that Aubin breached her fiduciary duty because she failed to attend several of Bluebird\u2019s board meetings. The trial court made a conclusion of law that \u201cAubin\u2019s absence from meetings is excusable under all the circumstances.\u201d Susi again failed to assign error to this conclusion. His failure to assign error means this Court takes this conclusion as conclusive on appeal. Fran\u2019s Pecans, Inc. at 112, 516 S.E.2d at 649.\nThis argument is overruled.\nVI. Conclusion\nFor the reasons stated above, we affirm the judgment of the trial court.\nAFFIRMED.\nChief Judge MARTIN and Judge ARROWOOD concur.\n. At various times throughout the history of this lawsuit and the parties\u2019 other lawsuits, both Susi and Aubin have alleged that the other has breached their \u201cagreement\u201d or \u201ccontract.\u201d The law of the case, based upon this Court\u2019s last opinion arising from this dispute, is that \u201c[Aubin] and Susi had a written agreement whereby Susi would loan money to Bluebird to acquire or improve property, and [Aubin] would assist in day to day business operations, including the marketing of Bluebird properties.\u201d See Aubin at 321, 560 S.E.2d at 877. Both Susi and Aubin allege that they did enter a \u201cShareholder\u2019s Agreement\u201d with these terms, though there are also allegations of oral modifications. However, when we use the term \u201ccontract\u201d or \u201cagreement,\u201d we are referring to the \u201cShareholder\u2019s Agreement\u201d as recognized by this Court in our prior opinion. See Aubin v. Susi, 149 N.C. App. 320, 560 S.E.2d 875 (2002).\n. Bluebird owned several commercial properties in New York, including a warehouse, residential lots, a restaurant, and an office building. We will refer to these properties collectively as the \u201cNew York properties\u201d.\n. On 20 March 2002, after the New York court approved a purchase price for the New York properties of $450,000.00, the receiver\u2019s deed was recorded which named the grantees as Earl Fitzhugh and Marianne S. McGonagle, who were trustees of the Watertown Properties Trust. Susi is the sole beneficiary of the Watertown Properties Trust.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by Reid L. Phillips and Andrew J. Haile for plaintiff-appellant Anthony A. Susi.", "Brinkley Walser, PLLC by G. Thompson Miller for defendantappellee Lois A. Aubin." ], "corrections": "", "head_matter": "BLUEBIRD CORPORATION and ANTHONY A. SUSI, Plaintiffs v. LOIS A. AUBIN, Defendant\nNo. COA07-282\n(Filed 19 February 2008)\n1. Conflict of Laws\u2014 relitigation of claim \u2014 procedural rights \u2014 law of the forum\nNorth Carolina law applied in an action concerning operation of a commercial property business in North Carolina and New York because North Carolina is the forum state. The North Carolina conflict of laws rule is that procedural rights are determined by the law of the forum, and whether a claim is being relitigated is a procedural issue.\n2. Collateral Estoppel and Res Judicata\u2014 counterclaims \u2014 no final judgment in prior action\nPlaintiff did not establish collateral estoppel or res judicata concerning counterclaims in an action arising from a commercial property business in North Carolina and New York. There was not a final judgment on the merits for those counterclaims in the prior N.Y. action.\n3. Constitutional Law\u2014 Full Faith and Credit Clause \u2014 counterclaims not addressed in New York\nThe Full Faith and Credit clause of the U.S. Constitution did not arise from a North Carolina court addressing counterclaims for breach of fiduciary duty and constructive fraud after a New York court order approved the sale of New York properties owned by plaintiff corporation. The New York court did not dispose of those counterclaims.\n4. Conflict of Laws\u2014 internal affairs doctrine \u2014 correct application of N.Y. law\nThere was no merit to plaintiff Susi\u2019s argument that the internal affairs doctrine rendered North Carolina courts devoid of jurisdiction to render a decision in an action arising from a New York corporation which had a property business in North Carolina and New York. The internal affairs doctrine is a conflict of laws issue; conflict of laws did not arise here because the North Carolina court plainly and correctly used New York law to render its judgment.\n5. Corporations\u2014 fiduciary duties \u2014 not addressed in prior action\nA North Carolina trial court did not err in an action arising from a commercial property business in New York and North Carolina by addressing the conduct of plaintiff Susi in the sale of New York properties and awarding damages. A New York court had approved the sale of the New York properties, but did not address the conduct which defendant claims depreciated the properties.\n6. Evidence\u2014 discrepancies \u2014 two separate actions \u2014 credibility rather than admissibility\nThe trial court did not abuse its discretion by admitting defendant\u2019s testimony about the value of corporate property in New York which had been sold in a dispute between the corporation\u2019s two shareholders. Defendant had given a deposition in an earlier New York action which arrived at a different conclusion about those values and included different properties, but she was contending that plaintiff Susi had deliberately suppressed the value of the properties, accounting for the change in value, and the New York action involved the sale of specific properties while the North Carolina addressed an alleged breach of fiduciary duty to the corporation and constructive fraud.\n7. Corporations\u2014 breach of fiduciary duty by officer \u2014 no assignment of error to findings\nBased on the unchallenged findings, the trial court did not err by determining in a dispute between the two shareholders of a commercial property company that defendant had not breached her fiduciary duty by refusing to reveal the identity of a prospective buyer or by refusing to attend board meetings. Plaintiff did not assign error to the trial court\u2019s conclusion as to the lack of evidence of damage to the corporation, or to the finding that defendant\u2019s absence was excusable under the circumstances.\nAppeal by plaintiff Anthony A. Susi from judgment entered 7 December 2006 by Judge Larry G. Ford in Superior Court, Davidson County. Heard in the Court of Appeals 18 September 2007.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by Reid L. Phillips and Andrew J. Haile for plaintiff-appellant Anthony A. Susi.\nBrinkley Walser, PLLC by G. Thompson Miller for defendantappellee Lois A. Aubin." }, "file_name": "0671-01", "first_page_order": 701, "last_page_order": 716 }