{ "id": 4356107, "name": "REV O, INC., Plaintiff-Appellant v. MARILYN WOO, Defendant-Appellee", "name_abbreviation": "Rev O, Inc. v. Woo", "decision_date": "2012-04-17", "docket_number": "No. COA11-1051", "first_page": "76", "last_page": "87", "citations": [ { "type": "official", "cite": "220 N.C. App. 76" } ], "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": "623 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634697, 12634698, 12634699 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0582-01", "/se2d/623/0582-02", "/se2d/623/0582-03" ] }, { "cite": "615 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633266 ], "year": 2005, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0350-01" ] }, { "cite": "639 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637616, 12637614, 12637615 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/639/0649-03", "/se2d/639/0649-01", "/se2d/639/0649-02" ] }, { "cite": "625 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634964 ], "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0191-01" ] }, { "cite": "360 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3791718, 3787691, 3792556, 3796278, 3794583, 3787192, 3791705, 3793820 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0063-05", "/nc/360/0063-01", "/nc/360/0063-08", "/nc/360/0063-04", "/nc/360/0063-02", "/nc/360/0063-06", "/nc/360/0063-07", "/nc/360/0063-03" ] }, { "cite": "171 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438714 ], "year": 2005, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0596-01" ] }, { "cite": "361 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743299, 3739878, 3740493, 3741777, 3738645, 3735861 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0166-06", "/nc/361/0166-03", "/nc/361/0166-02", "/nc/361/0166-01", "/nc/361/0166-05", "/nc/361/0166-04" ] }, { "cite": "175 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352903 ], "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0628-01" ] }, { "cite": "149 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "268 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559998 ], "year": 1966, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0001-01" ] }, { "cite": "329 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "330", "parenthetical": "quoting Acceptance Corp. v. Spencer, 268 N.C. 1, 9, 149 S.E.2d 570, 576 (1966)" }, { "page": "330-31", "parenthetical": "internal citations omitted" }, { "page": "332", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720084 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "454-55", "parenthetical": "quoting Acceptance Corp. v. Spencer, 268 N.C. 1, 9, 149 S.E.2d 570, 576 (1966)" }, { "page": "455" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0450-01" ] }, { "cite": "507 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198692 ], "year": 1998, "pin_cites": [ { "page": "252-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0242-01" ] }, { "cite": "519 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155646 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0041-01" ] }, { "cite": "503 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468853 ], "year": 1998, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0541-01" ] }, { "cite": "600 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "500", "parenthetical": "citing Furr v. Fonville Morisey Realty, Inc., 130 N.C. App. 541, 551, 503 S.E.2d 401, 408 (1998), disc. review improvidently allowed, 351 N.C. 41, 519 S.E.2d 314 (1999)" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8999958 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "748", "parenthetical": "citing Furr v. Fonville Morisey Realty, Inc., 130 N.C. App. 541, 551, 503 S.E.2d 401, 408 (1998), disc. review improvidently allowed, 351 N.C. 41, 519 S.E.2d 314 (1999)" }, { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0737-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "132 S.E. 2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "586", "parenthetical": "other citations omitted" } ], "opinion_index": 0 }, { "cite": "260 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574236 ], "year": 1963, "pin_cites": [ { "page": "295", "parenthetical": "other citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0291-01" ] }, { "cite": "124 S.E. 2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "908" } ], "opinion_index": 0 }, { "cite": "256 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574810 ], "year": 1962, "pin_cites": [ { "page": "713-14" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0709-01" ] }, { "cite": "369 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "556", "parenthetical": "citing Concrete Co. v. Lumber Co., 256 N.C. 709, 713-14, 124 S.E. 2d 905, 908 (1962), and Johnson v. Sanders, 260 N.C. 291, 295, 132 S.E. 2d 582, 586 (1963) (other citations omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519016 ], "year": 1988, "pin_cites": [ { "page": "570", "parenthetical": "citing Concrete Co. v. Lumber Co., 256 N.C. 709, 713-14, 124 S.E. 2d 905, 908 (1962), and Johnson v. Sanders, 260 N.C. 291, 295, 132 S.E. 2d 582, 586 (1963) (other citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0567-01" ] }, { "cite": "328 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "838-39" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525253 ], "year": 1985, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0532-01" ] }, { "cite": "684 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "54", "parenthetical": "quoting Ivey v. Williams, 74 N.C. App. 532, 534, 328 S.E.2d 837, 838-39 (1985)" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4172024 ], "year": 2009, "pin_cites": [ { "page": "179", "parenthetical": "quoting Ivey v. Williams, 74 N.C. App. 532, 534, 328 S.E.2d 837, 838-39 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0162-01" ] }, { "cite": "268 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "193", "parenthetical": "stating that \"[a]n issue is material if, as alleged, facts would constitute a legal defense, or would affect the result of the action or if its resolution would prevent the party against whom it is resolved from prevailing in the action\"" } ], "opinion_index": 0 }, { "cite": "300 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564292 ], "year": 1980, "pin_cites": [ { "page": "654", "parenthetical": "stating that \"[a]n issue is material if, as alleged, facts would constitute a legal defense, or would affect the result of the action or if its resolution would prevent the party against whom it is resolved from prevailing in the action\"" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0651-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "711 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "116", "parenthetical": "quoting Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)" } ], "opinion_index": 0 }, { "cite": "365 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "pin_cites": [ { "page": "182", "parenthetical": "quoting Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)" } ], "opinion_index": 0 }, { "cite": "151 L. Ed. 2d 261", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "122 S. Ct. 345", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 950", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9174244, 9174024, 9174012, 9174221, 9174076, 9174063, 9174000, 9174159, 9174195, 9174299, 9174108, 9174269, 9174143 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0950-11", "/us/534/0950-03", "/us/534/0950-02", "/us/534/0950-10", "/us/534/0950-05", "/us/534/0950-04", "/us/534/0950-01", "/us/534/0950-08", "/us/534/0950-09", "/us/534/0950-13", "/us/534/0950-06", "/us/534/0950-12", "/us/534/0950-07" ] }, { "cite": "547 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135616, 135649, 135948, 135763, 135735 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0371-05", "/nc/353/0371-03", "/nc/353/0371-01", "/nc/353/0371-02", "/nc/353/0371-04" ] }, { "cite": "546 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135914, 135661, 135986, 135704, 135806 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0262-04", "/nc/353/0262-02", "/nc/353/0262-05", "/nc/353/0262-03", "/nc/353/0262-01" ] }, { "cite": "534 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497849 ], "year": 2000, "pin_cites": [ { "page": "784-85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0778-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "year": 2002, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "573 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "124", "parenthetical": "citing DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511376 ], "year": 2002, "pin_cites": [ { "page": "579", "parenthetical": "citing DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0571-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "366", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "year": 1982, "pin_cites": [ { "page": "369", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] } ], "analysis": { "cardinality": 1007, "char_count": 27236, "ocr_confidence": 0.756, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1483862572682809 }, "sha256": "bd357e0073cefad7f659a1f2f056b347556ed71a13029dd66fd0fa2a4c127ed6", "simhash": "1:092b474ad3397476", "word_count": 4369 }, "last_updated": "2023-07-14T21:35:53.925153+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "REV O, INC., Plaintiff-Appellant v. MARILYN WOO, Defendant-Appellee" ], "opinions": [ { "text": "ERVIN, Judge.\nPlaintiff Rev O, Inc., appeals from an order granting summary judgment in favor of Defendant Marilyn Woo. On appeal, Plaintiff argues that the trial court erroneously granted summary judgment in favor of Defendant on the grounds that the record disclosed the existence of genuine issues of material fact concerning the extent to which Defendant allegedly violated Chapter 57C of the North Carolina General Statutes (\u201cthe LLC Act\u201d), was unjustly enriched and engaged in unfair or deceptive trade practices, and acted inconsistently with North Carolina public policy. After careful consideration of Plaintiffs challenges to the trial court\u2019s order in light of the record and the applicable law, we conclude that the trial court\u2019s order should be affirmed.\nI. Factual Background A. Substantive Facts\nOn 1 February 2007, Plaintiff leased a tract of commercial property in Raleigh from Downtown Properties, LLC. At that time, Downtown Properties was a limited liability company that had a single member, the Paul W. Woo Revocable Trust. Although Defendant, who was the widow of Paul Woo, managed Downtown Properties, she did not own it and was not a member of the LLC. The lease between Plaintiff and Downtown Properties provided that Plaintiff was \u201csolely responsible for obtaining any liquor license for the sale of alcoholic beverages at the Premises, and [that] this lease IS expressly conditioned on the issuance or revocation of such permit.\u201d\nBetween 1 February 2007, the effective date of the lease, and 1 May 2007, Plaintiff paid Downtown Properties the required $40,000 security deposit and $120,000 in rent. However, since Plaintiff was unable to obtain a permit authorizing the sale of alcoholic beverages, the parties terminated the lease on 4 May 2007. On 18 September 2007, Downtown Properties sold its real estate, including this property, to a third party. After selling the property, Downtown Properties had no assets. As a result, Downtown Properties filed Articles of Dissolution in 2009. Although Plaintiff filed suit against Downtown 'Properties on 12 August 2008 for the purpose of seeking reimbursement of the monies that it had paid under the lease and although Plaintiff obtained a default judgment against Downtown Properties on 2 October 2008, Plaintiff was unable to collect the amount of that judgment because Downtown Properties had no assets.\nB. Procedural History\nOn 24 April 2009, Plaintiff filed a complaint against Defendant alleging claims sounding in unjust enrichment and unfair or deceptive trade practices and seeking to pierce Downtown Properties\u2019 corporate veil for the purpose of obtaining an individual recovery from Defendant relating to actions that she had taken as the manager of Downtown Properties. Plaintiff\u2019s claim against Defendant rested upon the contention that Defendant had wrongfully assented to or participated in the sale and distribution of Downtown Properties\u2019 assets and that her participation in these events rendered her individually liable to Plaintiff.\nOn 24 June 2009, Defendant filed an answer denying the material allegations of Plaintiff\u2019s complaint and raising various affirmative defenses. In her answer, Defendant noted that the lease between Plaintiff and Downtown Properties, which Plaintiff attached to its complaint as an exhibit, stated that Defendant was the manager of Downtown Properties and asserted that, in \u201cher capacity as manager[,] she d[id] not have liability for the obligations\u201d of Downtown Properties. In addition, Defendant moved to dismiss Plaintiff\u2019s complaint for various reasons.\nOn 7 January 2011, Defendant filed a motion for summary judgment. In support of her summary judgment motion, Defendant filed an affidavit which stated, in pertinent part, that:\n1. The Articles of Organization of Downtown Properties, LLC . . . were filed on April 26, 2000. . . . Beginning in 2005 the sole member of Downtown Properties was the Paul W. Woo Revocable Trust dated June 5, 2002.\n3. ... I became a Manager of Downtown Properties in 2005.1 ceased owning any interest as a Member in Downtown Properties in 2005 which is 2 years before the lease transaction with Rev 0, Inc.\n4. Downtown Properties, LLC, and Rev 0, Inc., entered into a document entitled \u201cLease\u201d with an effective date of February 1, 2007. . . .\n5. Subsequent to entering into the Lease between the parties, upon the request of Rev 0, Inc., the Lease Agreement was terminated by both parties effective May 4, 2007. . . .\n6. Subsequent to entering into a lease termination, Downtown Properties sold the Cabarrus Street property and all remaining land holdings on September 19, 2007. . . .\n7. Since the transfer in September of 2007, Downtown Properties has not acquired or conveyed any other assets of monetary value.\n8. After the conveyance of the assets in 2007, Downtown Properties consisted of no other assets of monetary value and, therefore, in 2009, it filed Articles of Dissolution.\n9. From 2007 forward, no assets of Downtown Properties have been distributed from Downtown Properties ... to Marilyn E. Woo.\n10. I have not been enriched or received anything of monetary value from Downtown Properties from 2007 to the date of this Affidavit.\n11. As the manager of Downtown Properties, LLC, I could not completely control or dominate the company since it was solely owned by the Paul W. Woo Revocable Trust under Trust Agreement dated June 5, 2002. The Member could at any time remove me as Manager of the company.\n12. As Manager of Downtown Properties, I implemented the policies and directions provided by the Member.\nOn 18 May 2011, the trial court granted Defendant\u2019s motion. Plaintiff noted an appeal to this Court from the trial court\u2019s order.\nII. Legal Analysis A. Standard of Review\nAccording to N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c), summary judgment is properly granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.\u201d \u201cA party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party\u2019s claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.\u201d Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations omitted). \u201cThe party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact.\u201d Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002) (citing DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)). \u201c[0]nce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\u201d Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664, disc. review denied, 353 N.C. 262, 546 S.E.2d 400 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810, cert. denied, 534 U.S. 950, 122 S. Ct. 345, 151 L. Ed. 2d 261 (2001). \u201c \u2018A genuine issue of material fact arises when \u2018the facts alleged . . . are of such nature as to affect the result of the action.\u2019 \u201d N.C. Farm Bureau Mut. Ins. Co. v. Sadler, 365 N.C. 179, 182, 711 S.E.2d 114, 116 (2011) (quoting Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)) (citation and quotation marks omitted); see also City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 654, 268 S.E.2d 190, 193 (1980) (stating that \u201c[a]n issue is material if, as alleged, facts would constitute a legal defense, or would affect the result of the action or if its resolution would prevent the party against whom it is resolved from prevailing in the action\u201d) (internal citation omitted).\nB. Elements of Plaintiff\u2019s Claims\n1. Unjust Enrichment\nIn its complaint, Plaintiff asserted a claim against Defendant for unjust enrichment. Unjust enrichment has been defined as \u201ca legal term characterizing the \u2018result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor.\u2019 \u201d Carcano v. JBSS, LLC, 200 N.C. App. 162, 179, 684 S.E.2d 41, 54 (2009) (quoting Ivey v. Williams, 74 N.C. App. 532, 534, 328 S.E.2d 837, 838-39 (1985)) (internal citation omitted). \u201cA claim of this type is ... described as a claim in quasi contract or a contract implied in law. ... If there is a contract between the parties],] the contract governs the claim and the law will not imply a contract.\u201d Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988) (citing Concrete Co. v. Lumber Co., 256 N.C. 709, 713-14, 124 S.E. 2d 905, 908 (1962), and Johnson v. Sanders, 260 N.C. 291, 295, 132 S.E. 2d 582, 586 (1963) (other citations omitted).\n2. Unfair or Deceptive Trade Practices\nIn addition, Plaintiff asserted a claim against Defendant for unfair and deceptive trade practices. \u201cThe elements of a claim for unfair or deceptive trade practices in violation of N.C. Gen. Stat. \u00a7 75-1.1 . . . are: (1) an unfair or deceptive act or practice or an unfair method of competition; (2) in or affecting commerce; (3) that proximately causes actual injury to the plaintiff or to his business.\u201d RD&J Props. v. Lauralea-Dilton Enters., LLC, 165 N.C. App. 737, 748, 600 S.E.2d 492, 500 (2004) (citing Furr v. Fonville Morisey Realty, Inc., 130 N.C. App. 541, 551, 503 S.E.2d 401, 408 (1998), disc. review improvidently allowed, 351 N.C. 41, 519 S.E.2d 314 (1999)). \u201cAlthough it is a question of fact whether the defendant performed the alleged acts, it is a question of law whether those facts constitute an unfair or deceptive . . . practice.\u201d RD&J Props, 165 N.C. App. at 748, 600 S.E.2d at 500-01 (citing First Atl. Mgmt., Corp. v. Dunlea Realty, Co., 131 N.C. App. 242, 252-53, 507 S.E.2d 56, 63 (1998)).\n3. Piercing the Corporate Veil\nFinally, Plaintiff sought to pierce Downtown Properties\u2019 corporate veil in order obtain the entry of a judgment against Defendant individually. \u201c[The Supreme Court of North Carolina] has enumerated three elements which support an attack on separate corporate entity under the instrumentality rule:\n\u201c(1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and\n(2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of plaintiff\u2019s legal rights; and\n(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.\u201d\nGlenn v. Wagner, 313 N.C. 450, 454-55, 329 S.E.2d 326, 330 (1985) (quoting Acceptance Corp. v. Spencer, 268 N.C. 1, 9, 149 S.E.2d 570, 576 (1966)). \u201cWe have previously considered the following factors in determining the level of control a corporate or individual defendant exercises over a corporation:\n1. Inadequate capitalization].]\n2. Non-compliance with corporate formalities.\n3. Complete domination and control of the corporation so that it has no independent identity.\n4. Excessive fragmentation of a single enterprise into separate corporations.\nEast Mkt. St. Square, Inc. v. Tycorp Pizza IV, Inc., 175 N.C. App. 628, 636, 625 S.E.2d 191, 198 (citing Glenn, 313 N.C. at 455, 329 S.E.2d at 330-31 (internal citations omitted), disc. review denied, 361 N.C. 166, 639 S.E.2d 649 (2006). However, it \u201cis not the presence or absence of any particular factor that is determinative. Rather, it is a combination of factors which... suggest that the corporate entity attacked had \u2018no separate mind, will or existence of its own\u2019 and was therefore the \u2018mere instrumentality or tool\u2019 of the dominant corporation.\u201d Glenn, 313 N.C. at 458, 329 S.E.2d at 332 (internal citation omitted).\nC. Analysis of Plaintiff\u2019s Arguments 1. Violation of LLC Act\nFirst, Plaintiff argues that the trial court erroneously granted summary judgment in favor of Defendant on the grounds that \u201cseveral genuine issues of material fact must be resolved to determine whether [Defendant] violated the North Carolina Limited Liability Company Act in a way that would cause her to be personally liable under the Act.\u201d Although Plaintiff contends that Defendant violated the LLC Act and suggests that these violations support a finding of liability on unjust enrichment and unfair and deceptive trade practice grounds, we conclude that Plaintiff has not established that Defendant\u2019s alleged violations of the LLC Act occurred or that any violations of the LLC Act would support a damage recovery in favor of Plaintiff.\nN.C. Gen. Stat. \u00a7 57C-4-06, which limits distributions to limited liability company members, provides that:\n(a) No distribution may be made if, after giving effect to the distribution:\n(1) The limited liability company would not be able to pay its debts as they become due in the usual course of business; or\n(2) The limited liability company\u2019s total assets would be less than the sum of its total liabilities])] . . .\nIn addition, N.C. Gen. Stat. \u00a7 57C-4-07 provides, in pertinent part, that \u201c[a] manager or director who votes for or assents to a distribution in violation of [N.C. Gen. Stat. \u00a7] 57C-4-06 ... is personally liable to the limited liability company for the amount of the distribution that exceeds what could have been distributed without violating N.C. Gen. Stat. \u00a7 57C-4-06.\u201d\nPlaintiff contends that there is a genuine issue of material fact concerning the extent to which Defendant approved the sale of Downtown Properties\u2019 assets in violation of N.C. Gen. Stat. \u00a7 57C-4-06 and that, if Defendant \u201cis personally liable to Downtown Properties, the LLC would be able to pay some if not all of the judgment obtained by [Plaintiff].\u201d Put another way, Plaintiff\u2019s theory appears to be that, if Defendant approved a distribution to Downtown Properties\u2019 members in violation of N.C. Gen. Stat. \u00a7 57C-4-06, Defendant would be liable to Downtown Properties pursuant to N.C. Gen. Stat. \u00a7 57C-4-07 and Plaintiff would be entitled to benefit from Defendant\u2019s liability to Downtown Properties. We do not find Plaintiff\u2019s reasoning persuasive.\nAccording to N.C. Gen. Stat. \u00a7 57C-4-06, a manager\u2019s decision to approve the distribution of a limited liability company\u2019s assets to the members is improper only if, following the distribution, the LLC \u201cwould not be able to pay its debts as they become due in the usual course of business\u201d or if the LLC\u2019s \u201ctotal assets would be less than the sum of its total liabilities.\u201d All of the evidence contained in the present record tends to show that:\n1. Plaintiff terminated its lease with Downtown Properties in May 2007;\n2. Downtown Properties sold its real estate in September 2007;\n3. Plaintiff filed suit against Downtown Properties almost a year later, in August 2008; and\n4. Plaintiff did not obtain a default judgment against Downtown Properties until October 2008.\nPlaintiff has not forecast any evidence tending to show that, at the time that the asset sale and related distribution occurred, Downtown Properties was unable to pay its debts or that Downtown Properties\u2019 liabilities exceeded the value of its assets. In addition, Plaintiff has not cited any authority establishing that the entry of a default judgment against Downtown Properties more than a year after the challenged sale and distribution somehow establishes the existence of a debt that had become due \u201cin the usual course of business\u201d as of the date of the transaction in question. On the contrary, Plaintiff has simply asserted that the obligation evidenced by the default judgment should be treated as having been incurred in the \u201cregular course of Downtown Properties\u2019 business\u201d because \u201cthe \u2018main purpose\u2019 of the LLC was leasing the Property.\u201d However, given that Plaintiff did not file suit for the purpose of asserting its reimbursement claim until almost a year after the lease had been terminated and all of Downtown Properties\u2019 assets had been sold and given the absence of any record evidence establishing that Plaintiff informed Defendant or Downtown Properties of the existence of its claim prior to the date of the challenged sale and distribution, we are unable to ascertain how the transaction at issue here was effectuated in violation of N.C. Gen. Stat. \u00a7 57C-4-06.\nSecondly, Plaintiff has failed to articulate any basis on which, at the time of the distribution, Downtown Properties should have expected that Plaintiff might succeed in a claim for reimbursement for the deposit and rent payments that it made to Downtown Properties prior to the termination of the lease. The lease was \u201cexpressly conditioned on the issuance or revocation\u201d of a license for the sale of alcoholic beverages. The lease does not, however, contain any language providing that, in the event that Plaintiff terminated the lease after failing to obtain authorization to sell alcoholic beverages, Plaintiff would be entitled to reimbursement of any monies paid while the lease was in effect. In addition, Plaintiff has not identified any statutory provision or common law principle giving it the right to seek reimbursement of the payments that it made to Downtown Properties prior to the termination of the lease. As a result, given the complete absence of any evidence tending to show that Plaintiff had a right to obtain reimbursement of the monies paid to Downtown Properties under the lease at the time of the challenged sale and distribution, the record does not provide any basis for believing that the sale and distribution of Downtown Properties\u2019 assets violated N.C. Gen. Stat. \u00a7 57C-4-06.\nThirdly, even if the distribution of Downtown Properties\u2019 assets violated N.C. Gen. Stat. \u00a7 57C-4-06, any liability to which Defendant would be subject pursuant to N.C. Gen. Stat. \u00a7 57C-4-07 would lie in favor of Downtown Properties and not in favor of Plaintiff. In spite of its claim to be entitled to benefit from Defendant\u2019s alleged violation of N.C. Gen. Stat. \u00a7 57C-4-06, Plaintiff has not argued that it has the right to force Downtown Properties to sue Defendant, that Downtown Properties would be legally required to seek recovery from Defendant pursuant to N.C. Gen. Stat. \u00a7 57C-4-07, or that Plaintiff has the ability to enforce any rights that Downtown Properties might have against Defendant. Simply put, Plaintiff has failed to cite any authority or advance any argument in support of the proposition that Plaintiff would be entitled to benefit from the fact that Downtown Properties might have a claim against Defendant, and we know of none. Thus, even if Defendant did, in fact, violate N.C. Gen. Stat. \u00a7 57C-4-06 at the time that the distribution of Downtown Properties\u2019 assets occurred, there is no basis for believing that such a showing would in any way inure to Plaintiffs benefit.\nFinally, Plaintiff has failed to explain how any liability that Defendant might have to Downtown Properties based upon the provisions of N.C. Gen. Stat. \u00a7\u00a7 57C-4-06 and 57C-4-07 would have any bearing on the viability of the specific claims that Plaintiff seeks to assert against Defendant. Plaintiff has not identified any nexus between the possibility that Defendant might be liable to Downtown Properties pursuant to N.C. Gen. Stat. \u00a7\u00a7 57C-4-06 and 57C-4-07 and the elements of the unjust enrichment and unfair and deceptive trade practice claims that Plaintiff seeks to assert against Defendant. \u201cIt is not the duty of this Court to supplement an appellant\u2019s brief with legal authority or arguments not contained therein.\u201d Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358, disc. rev. denied, 360 N.C. 63, 623 S.E.2d 582 (2005). As a result, we conclude that Plaintiff has failed to show that (1) the distribution of Downtown Properties\u2019 assets constituted a violation of N.C. Gen. Stat. \u00a7 57C-4-06; (2) that any legal rights stemming from any such violation would have accrued to Plaintiff rather than Downtown Properties; or (3) that any violation of the LLC Act which might have occurred provided any support for Plaintiffs unjust enrichment and unfair and deceptive trade practice claims. As a result, despite Plaintiffs argument in reliance on the LLC Act, the trial court did not err by granting summary judgment in favor of Defendant.\n2. Uniust Enrichment\nSecondly, Plaintiff asserts that a \u201cgenuine issue of material fact remains as to whether [Defendant] was unjustly enriched to the detriment of [Plaintiff] by her acts as manager of Downtown Properties.\u201d Although Plaintiff concedes that Defendant forecast evidence tending to show that the assets of Downtown Properties were sold in September, 2007; that \u201cno assets of Downtown Properties\u201d had been distributed to Defendant after 2007; and that Defendant \u201cha[d] not been enriched or received anything of monetary value from Downtown Properties from 2007 to the date of this affidavit,\u201d Plaintiff argues that Defendant may have received something of value from the Paul W. Woo Revocable Trust and that, if so, \u201cshe may have been unjustly enriched.\u201d Plaintiff has failed, however, to articulate any connection between the possibility that Defendant might have received something from the Paul W. Woo Revocable Trust after 2007 and the elements of a claim for unjust enrichment. In addition, Plaintiff has not provided any evidentiary support for its claim that such a distribution may have occurred. As a result, we conclude that Plaintiff is not entitled to relief from the trial court\u2019s order based upon this argument.\n3. Unfair or Deceptive Trade Practices\nThirdly, Plaintiff argues that, in the event that Defendant received anything of value from the Paul W. Woo Revocable Trust, her conduct as manager of Downtown Properties \u201cmay constitute unfair or deceptive trade practices.\u201d Once again, Plaintiff has failed to identify any record support for this assertion, to cite any authority in support of its position to this effect, or to otherwise explain how Plaintiff had a viable claim against Defendant pursuant to N.C. Gen. Stat. \u00a7 75-1.1. As a result, Plaintiff is not entitled to obtain reversal of the trial court\u2019s order based on this logic.\n4. Violation of Public Policy\nFinally, Plaintiff argues that, if Defendant approved the sale of Downtown Properties\u2019 assets, her actions were \u201cagainst public policy.\u201d Once again, we conclude that Plaintiff\u2019s argument lacks merit.\nAccording to Plaintiff, Defendant \u201cassent[ed] to a distribution that create [d] a windfall for the member of the LLC at the expense of the creditors of the LLC.\u201d As we have already demonstrated, however, Plaintiff has not shown that it was, in fact, a \u201ccreditor\u201d of Downtown Properties at the time of the challenged distribution or that Defendant or Downtown Properties should have foreseen at that time that Downtown Properties might be liable to Plaintiff. In addition, although Plaintiff claims that Downtown Properties had \u201crefused to reimburse the good faith money that [Plaintiff] had paid,\u201d Plaintiff has not demonstrated that Downtown Properties had any obligation to make such a payment at the time of the disputed sale and distribution. Under that set of circumstances, we are unable to see what \u201cpublic policy\u201d was violated when the challenged distribution occurred, and Plaintiff has not cited any authority or advanced any argument explaining why the alleged public policy implications of Defendant\u2019s actions as manager of Downtown Properties would support reversal of the trial court\u2019s order. As a'result, we conclude that Plaintiff\u2019s \u201cpublic policy\u201d argument lacks merit as well.\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that Plaintiff has failed to demonstrate that the trial court erred by granting summary judgment in favor of Defendant. As a result, the trial court\u2019s order should be, and hereby, is affirmed.\nAFFIRMED.\nJudges BRYANT and ELMORE concur.\n. Plaintiff argues that, in addition to the other alleged violations of the LLC Act discussed in the text, Defendant failed to honor her obligation to act in \u201cgood faith\u201d as set out in N.C. Gen. Stat. \u00a7 67C-3-22. However, given that the alleged basis for Defendant\u2019s lack of \u201cgood faith\u201d claim is her participation in the challenged distribution of Downtown Properties\u2019 assets and given that the same logic that has persuaded us to reject Plaintiff\u2019s arguments in reliance upon N.C. Gen. Stat. \u00a7\u00a7 57C-4-06 and 57C-4-07 support rejection of Plaintiff\u2019s argument in reliance upon N.C. Gen. Stat. \u00a7 57C-3-22 as well, we do not find Plaintiff\u2019s \u201cgood faith\u201d claim persuasive.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "The Edmisten & Webb Law Firm, by William Woodward Webb and James Ryan Hawes, for Plaintiff-appellant.", "Boxley, Bolton, Garber & Haywood, L.L.P., by Kenneth C. Haywood, for Defendant-appellee." ], "corrections": "", "head_matter": "REV O, INC., Plaintiff-Appellant v. MARILYN WOO, Defendant-Appellee\nNo. COA11-1051\n(Filed 17 April 2012)\n1. Unjust Enrichment \u2014 unfair trade practices \u2014 LLC Act\u2014 allegations unsupported \u2014 recovery unsupported\nThe trial court did not erroneously grant summary judgment in favor of defendant on plaintiff\u2019s unjust enrichment and unfair or deceptive trade practice claims as plaintiff failed to established that defendant\u2019s alleged violations of the Chapter 57C of the North Carolina General Statutes (LLC Act) occurred or that any violations of the LLC Act would support a damage recovery in favor of plaintiff.\n2. Unjust Enrichment \u2014 no genuine issue of material fact\u2014 summary judgment proper\nThe trial court did not err in granting summary judgment in favor of defendant on plaintiff\u2019s unjust enrichment claim as there was no genuine issue of material fact remaining as to whether defendant was unjustly enriched to the detriment of plaintiff by her acts as manager of Downtown Properties.\n3. Unfair Trade Practices \u2014 argument unsupported \u2014 summary judgment proper\nThe trial court did not err in granting summary judgment in favor of defendant on plaintiff\u2019s unfair or deceptive trade practice claim as plaintiff failed to offer any support for her argument that defendant\u2019s conduct as manager of Downtown Properties constituted unfair or deceptive trade practices.\n4. Unjust Enrichment \u2014 unfair trade practices \u2014 public policy violations \u2014 not supported\nPlaintiff\u2019s argument in an unjust enrichment and unfair or deceptive trade practice case that defendant\u2019s approval of the sale of Downtown Properties\u2019 assets w\u00e1s against public policy lacked merit. Plaintiff failed to cite any authority or advance any argument explaining why the alleged public policy implications of defendant\u2019s actions as manager of Downtown Properties would support reversal of the trial court\u2019s order.\nAppeal by plaintiff from judgment entered 18 May 2011 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 25 January 2012.\nThe Edmisten & Webb Law Firm, by William Woodward Webb and James Ryan Hawes, for Plaintiff-appellant.\nBoxley, Bolton, Garber & Haywood, L.L.P., by Kenneth C. Haywood, for Defendant-appellee." }, "file_name": "0076-01", "first_page_order": 86, "last_page_order": 97 }