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      "HIGHLAND PAVING CO., LLC, Plaintiff v. FIRST BANK and SOUTHEAST DEVELOPMENT OF CUMBERLAND, LLC, Defendants"
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      {
        "text": "STROUD, Judge.\nHighland Paving Co., Ltd., (\u201cplaintiff\u2019) appeals from the order granting First Bank\u2019s motion to dismiss all claims against it. Plaintiff argues that it properly pled all claims against First Bank and that therefore the trial court erred in granting its motion to dismiss. For the following reasons, we affirm the trial court\u2019s order in full.\nI. Background\nDuring the summer of 2008, plaintiff was hired by Southeast Development of Cumberland, LLC (\u201cSoutheast\u201d) to install utilities and perform grading and road construction for Southeast\u2019s development known as Green Valley. To finance the development, Southeast took out a loan from First Bank secured by a deed of trust on the Green Valley property, which was recorded in the Cumberland County Registry.\nAt some point after development began, Southeast was -unable to pay for plaintiff\u2019s improvements to the land and plaintiff was unwilling to proceed with further construction until paid. To save the project, First Bank drafted an agreement wherein plaintiff agreed to forgo payment until \u201cthe first 12 to 16 lots\u201d were sold and all of plaintiff\u2019s work on the project was complete to the satisfaction of First Bank. Defendant Southeast agreed to forgo any proceeds from the \u201cfirst takedown of [the] lots\u201d and to provide all proceeds from that sale to First Bank to escrow until plaintiff completed its work and the first lots were sold. First Bank, in turn, agreed to \u201crelease the first takedown of lots\u201d at a reduced fee \u201cupon the condition that [First Bank] escrows and disburses all proceeds from the sale\u201d to the contractors, including plaintiff.\nThe first eight lots were sold and plaintiff received its portion of the proceeds without incident. Plaintiff has alleged that defendants sold the remainder of Green Valley on 26 October 2011 without consulting plaintiff, but refused to compensate it for the outstanding amount on its construction costs, valued at $153,651.54. Plaintiff claims that First Bank \u201cfail[ed] to escrow the funds and pay Plaintiff as agreed.\u201d\nOn 26 January 2012, plaintiff filed a complaint in Superior Court, Harnett County, alleging that defendants breached their contracts with plaintiff, that First Bank had engaged in constructive fraud, that it was entitled to compensation under a quantum meruit theory, and that both defendants had engaged in unfair and deceptive trade practices. Plaintiff attached several exhibits to its complaint, including: its initial project proposal for Green Valley; the original deed of trust securing First Bank\u2019s loan; the subsequent agreement between plaintiff and defendants; plaintiff\u2019s invoice for work completed on the project; the check for plaintiff\u2019s portion of the proceeds from the first eight lots; a general warranty deed transferring ownership of the rest of Green Valley to East West Alliance Northridge Park, Ltd. (\u201cEast West\u201d); and a certificate of satisfaction recorded by East West cancelling the debt secured by the deed of trust originally recorded by First Bank.\nFirst Bank moved to dismiss all claims against it on or about 28 February 2012. The Superior Court held a hearing and granted First Bank\u2019s motion by order entered 25 June 2012. The trial court also entered a supplemental order certifying that the order dismissing the claims against First Bank was a final order and that there is no just reason to delay an appeal. Plaintiff filed written notice of appeal to this Court on 24 July 2012.\nII. Interlocutory Order\nThe order plaintiff appeals from resolves only the claims against First Bank. Plaintiff\u2019s claims against Southeast are still pending. Therefore, this order is an interlocutory order. See Stinchcomb v. Presbyterian Medical Care Corp., _ N.C. App. _, _, 710 S.E.2d 320, 323, disc. rev. denied, 365 N.C. 338, 717 S.E.2d 376 (2011). Normally, interlocutory orders are not immediately appealable. Id.\nHere, however, the trial court certified that there is no just reason for delay under N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2011). It is uncontested that the order on appeal resolves all claims against First Bank.\nWhen an appeal is from an order that is final as to one party, but not all, and the trial court has certified the matter under Rule 54(b), this Court must review the issue.... As this appeal is from an order which is final as to some of the parties, and the trial court has properly certified the appeal pursuant to Rule 54(b), we must review the issue.\nId. at_, 710 S.E.2d at 323 (citations and quotation marks omitted). We will therefore review the order based upon the Rule 54(b) certification.\nIII. Motion to Dismiss\nPlaintiff argues on appeal only that the trial court erred in dismissing all of its claims against First Bank because each claim was properly pled. First Bank argues that the trial court correctly dismissed all claims because the exhibits attached to and incorporated into plaintiffs complaint contradict its material allegations.\nA. Standard of Review\nOn a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.\nBlock v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (citations and quotation marks omitted).\nAs a general proposition... matters outside the complaint are not germane to a Rule 12(b)(6) motion. ... If, however, documents are attached to and incorporated within a complaint, they become part of the complaint. They may, therefore, be considered in connection with a Rule 12(b) (6) or 12(c) motion without converting it into a motion for summary judgment.\nWeaver v. Saint Joseph of the Pines, Inc., 187 N.C. App. 198, 203-04, 652 S.E.2d 701, 707 (2007) (citation omitted). \u201cThe terms of such exhibit control other allegations of the pleading attempting to paraphrase or construe the exhibit, insofar as these are inconsistent with its terms.\u201d Wilson v. Crab Orchard Development Co., 276 N.C. 198, 206, 171 S.E.2d 873, 879 (1970); see Hall v. Sinclair Refining Co., 242 N.C. 707, 711, 89 S.E.2d 396, 399 (1955) (\u201cThe contracts, incorporated in the complaint by amendment, have neutralized the allegations of the original complaint and put to naught the cause of action asserted therein. Such variance or defect may be raised by demurrer.\u201d (citations omitted)).\nB. Breach of Contract\nPlaintiff first contends that it properly pled a breach of contract.\nThe elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of the contract. This Court has held that where the complaint alleges each of these elements, it is error to dismiss a breach of contract claim under N.C. Gen.Stat. \u00a7 1A-1, Rule 12(b)(6).\nMcLamb v. T.P. Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005) (citation, quotation marks, and brackets omitted), disc. rev. denied, 360 N.C. 290, 627 S.E.2d 621 (2006). We will first examine what plaintiff alleged, and then what the documents attached to the complaint show.\nIn its complaint, plaintiff alleged that there was a contract between it and defendants wherein it agreed to forgo payment until the first twelve to sixteen lots were sold and First Bank agreed to receive the funds from the sales, hold those proceeds in escrow, and distribute them to plaintiff once the lots were sold. Plaintiff alleged that defendant Southeast has sold several lots without notifying plaintiff and that First Bank has breached its agreement to hold those proceeds in escrow.\nFirst Bank argues that we should affirm the trial court\u2019s order as to the breach of contract claim for two reasons. First, the alleged contract attached to plaintiff\u2019s complaint was never signed by any representative of First Bank. Next, even if the unsigned contract is valid, the other documents attached to the complaint show that First Bank did not breach the contract. We hold that, even assuming the agreement between plaintiff and First Bank was an enforceable contract, plaintiff\u2019s exhibits contradict its allegations as to breach.\nPlaintiff alleged that Southeast sold the subject property on 26 October 2011, that the bank received the proceeds from the sale, and then failed to disburse the funds as required under the contract. Plaintiff attached to its complaint the original deed of trust in which defendant Southeast was the grantor and First Bank was the beneficiary and holder of the debt.\nOn 26 October 2011, defendant Southeast deeded the remainder of the subject property to East West for $10.00 in exchange for cancellation of the debt secured by the deed of trust. East West recorded a certificate of satisfaction on 7 November 2011 certifying that it owned the debt and cancelling the deed of trust. There is no allegation that East West is a subsidiary of First Bank or otherwise affiliated with it. Thus, it appears that at some later date, First Bank sold or otherwise transferred its interest in the debt and the property to East West, who is not a party to the present action.\nAlthough plaintiff described this transaction as a \u201csale,\u201d the documents attached to the complaint indicate that there were no \u201cproceeds\u201d from this transaction, as the plain language of the exhibits show that property was transferred in satisfaction of a debt obligation, not in exchange for money. If there were no \u201cproceeds,\u201d First Bank could not be under any contractual obligation to ensure that they were escrowed for plaintiff\u2019s benefit and could not have breached the contract as alleged. The obvious risk inherent in plaintiff\u2019s agreement to accept future \u201csales proceeds\u201d from the lots in payment of Southeast\u2019s debt was that there might ultimately be no sales proceeds; unfortunately for plaintiff, that is exactly what happened.\nPlaintiff relies solely on this transaction in its allegation that First Bank breached the contract. The exhibits attached to plaintiff\u2019s complaint contradict its material allegations as to First Bank\u2019s breach of the contract because they show that there would not have been proceeds for First Bank to escrow and convert for its own use in breach of the contract. The exhibits attached to the complaint \u201creveal[] the absence of facts sufficient to make a good claim.\u201d Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (2007) (citation and quotation marks omitted). Therefore, we hold that the trial court did not err in granting First Bank\u2019s motion to dismiss the breach of contract claim.\nC. Breach of Fiduciary Duty and Constructive Fraud\nPlaintiff next argues that the trial court erred in dismissing its claim that First Bank breached its fiduciary duty and that it engaged in constructive fraud. These allegations arise out of the same contract and transaction discussed above. Plaintiff alleged that it placed trust and confidence in First Bank.\nTo establish constructive fraud, a plaintiff must show that defendant (1) owes plaintiff a fiduciary duty; (2) breached this fiduciary duty; and (3) sought to benefit himself in the transaction. A confidential or fiduciary relation can exist under a variety of circumstances and is not limited to those persons who also stand in some recognized legal relationship to each other. It extends to any possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other. Only when one party figuratively holds all the cards \u2014 all the financial power or technical information, for example \u2014 have North Carolina courts found that the \u201cspecial circumstance\u201d of a fiduciary relationship has arisen. Determining whether a fiduciary relationship exists requires looking at the particular facts and circumstances of a given case.\nCrumley & Associates, P.C. v. Charles Peed & Associates, P.A., _ N.C. App. _, _, 730 S.E.2d 763, 767 (2012) (citations, quotation marks, brackets, and ellipses omitted).\nPlaintiff alleged that it \u201cplaced special trust and confidence in First Bank due to the written agreement, their priority lien position, the parties\u2019 previous dealings and due to the fact that the Bank is a professional fiduciary.\u201d It further alleged that the bank \u201cpromised payment to Plaintiff for work performed given the priority hen position.\u201d Plaintiff argues that First Bank owed it a fiduciary duty in part because \u201c[t]he parties ... in essence formed a partnership to complete the project[.]\u201d Plaintiff did not allege, however, that the parties ever formed a formal partnership. Cf. N.C. Gen. Stat. \u00a7\u00a7 59-101, el seq. (2011) (codifying the Revised Uniform Limited Partnership Act). It never alleged that First Bank ever agreed to represent its interests in the transaction or that some other special relationship existed between it and First Bank. The only relationship between plaintiff and the bank was that created by the contract wherein the bank agreed to hold any proceeds from defendant Southeast\u2019s land sales in escrow and then distribute the proceeds to plaintiff upon inspection of the completed work.\n\u201c[P]arties to a contract do not thereby become each others\u2019 fiduciaries; they generally owe no special duty to one another beyond the terms of the contract____\u201d Branch Banking and Trust Co. v. Thompson, 107 N.C. App. 53, 61, 418 S.E.2d 694, 699, disc. rev. denied, 332 N.C. 482, 421 S.E.2d 350 (1992). \u201cNorth Carolina courts generally find that parties who interact at arms-length do not have a fiduciary relationship with each other, even if they are mutually interdependent businesses.\u201d Crumley & Associates, P.C., _ N.C. App. at _, 730 S.E.2d at 767 (citation omitted).\nOur review of reported North Carolina cases has failed to reveal any case [and plaintiff cites none] where mutually interdependent businesses, situated as the parties were here, were found to be in a fiduciary relationship with one another.\nTin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C. App. 663, 666, 391 S.E.2d 831, 833 (1990). As in Tin Originals, \u201c[w]e decline to extend the concept of a fiduciary relation to the facts of this case.\u201d Id.\nBecause plaintiff has failed to allege a relationship between it and First Bank that could constitute a fiduciary relationship, it cannot maintain its constructive fraud claim. See Crumley & Associates, P.C., _ N.C. App. at _, 730 S.E.2d at 767. Therefore, the trial court did not err in granting First Bank\u2019s motion as to the constructive fraud claim. See Burgin, 181 N.C. App. at 512, 640 S.E.2d at 429.\nD. Quantum Meruit\nPlaintiff next argues that it properly pled a claim in quantum meruit and that the trial court erred in dismissing this claim. First Bank counters that the trial court correctly dismissed the claim because plaintiff did not plead quantum meruit in the alternative to its breach of contract claim and that it failed to properly allege what \u201cvaluable service\u201d First Bank received.\nTo recover in quantum meruit, a plaintiff must show that (1) services were rendered to the defendant; (2) the services were knowingly and voluntarily accepted; and (3) the services were not given gratuitously. In addition, quantum meruit claims require a showing that both parties understood that services were rendered with the expectation of payment.\nWing v. Town of Landis, 165 N.C. App. 691, 693, 599 S.E.2d 431, 433 (2004) (quotation marks, citations, and brackets omitted).\nThe claims of breach of contract and quantum meruit are normally pled in the alternative, since some of the allegations required for one claim are contrary to those required for the other; if there is a valid and enforceable contract, quantum meruit is not appropriate, and vice versa. See Catoe v. Helms Const. & Concrete Co., 91 N.C. App. 492, 498, 372 S.E.2d 331, 335-36 (1988) (observing that recovery on an express contract theory precludes recovery in quantum meruit where both claims are based on the same subject matter). Yet we will construe the allegations of the complaint liberally and treat them as alternatively pled instead of as a contradiction within the allegations. See Block, 141 N.C. App. at 277, 540 S.E.2d at 419 (\u201cThe complaint must be liberally construed____\u201d); N.C. Gen. Stat. \u00a7 1A-1, Rule 8(e)(1) (2011) (\u201cNo technical forms of pleading or motions are required.\u201d). \u201cWhile the concept of notice pleading is liberal in nature, a complaint must nonetheless state enough to give the substantive elements of a legally recognized claim or it may be dismissed under Rule 12(b)(6).\u201d Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988) (citation omitted).\nPlaintiff alleged that First Bank received the benefit of its services by receiving the proceeds from the sale of the properties, as evidenced by the certificate of satisfaction. Although plaintiff did allege generally that it provided a valuable service to First Bank, it did not allege that First Bank profited from its services in any way other than from the 26 October transaction. \u201cWhere both general and specific allegations are made respecting the same matter, the latter control.\u201d Burns v. Burns, 4 N.C. App. 426, 430, 167 S.E.2d 82, 85 (1969) (citation omitted).\nAs discussed above, the certificate of satisfaction was not recorded by First Bank. The allegations do not even acknowledge that First Bank was not mentioned in any of the documents connected to the 26 October transaction. The allegations also do not reveal how First Bank could have profited or benefitted from the cancellation of the deed of trust by the new owner of defendant Southeast\u2019s debt.\nPlaintiffs only theory of enrichment is premised on the allegation that First Bank received funds from a sale of property on 26 October 2011. As explained above, the exhibits attached to plaintiff\u2019s complaint contradict this allegation. \u201cWithout enrichment, there can be no \u2018unjust enrichment\u2019 and therefore no recovery on an implied contract.\u201d Wing, 165 N.C. App. at 695, 599 S.E.2d at 434 (citation and quotation marks omitted). Thus, the complaint and the exhibits attached thereto \u201creveal[] the absence of facts sufficient to make a good claim.\u201d Burgin, 181 N.C. App. at 512, 640 S.E.2d at 429 (citation and quotation marks omitted). Accordingly, we hold that the trial court did not err in granting First Bank\u2019s motion to dismiss plaintiffs quantum meruit claim.\nE. Unfair and Deceptive Trade Practices\nPlaintiff finally argues that the trial court erred in granting First Bank\u2019s motion to dismiss its claim for Unfair and Deceptive Trade Practices (UDTP).\nIn order to establish aviolation of N.C.G.S. \u00a7 75-1.1, aplaintiff must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs. The determination of whether an act or practice is an unfair or deceptive practice that violates N.C.G.S. \u00a7 75-1.1 is a question of law for the court.\nGray v. North Carolina Ins. Underwriting Ass\u2019n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000) (citations omitted).\nPlaintiff bases its UDTP claim on \u201ca secret transaction involving the land that was the subject of the original contract, and that First Bank converted escrowed funds for its own use while failing to pay Highland Paving for its work.\u201d It alleged that this act was an unfair or deceptive act or practice. Like all of plaintiff\u2019s other claims, this claim is based on the 26 October transaction.\nAlthough plaintiff argues generally that First Bank \u201cconverted escrowed funds for its own use,\u201d it specifically conceded in its complaint that all funds due to it prior to 26 October were paid by First Bank. Thus, as with the other claims, this claim rests entirely on the allegation that First Bank received proceeds from the \u201csale\u201d of the properties on 26 October.\nAs discussed above, this allegation is directly contradicted by the exhibits plaintiff attached to its complaint. If there were no sales proceeds from the 26 October transaction to escrow, First Bank cannot have converted those funds to its own use by deceiving plaintiff about the existence of those funds. Thus, the exhibits directly contradict plaintiff\u2019s allegation of an unfair or deceptive act. Perhaps, as plaintiff argues, there was some other \u201csecret transaction\u201d by which First Bank benefited, but we cannot assume that First Bank engaged in some nefarious plot when the complaint fails to identify it. Because the terms of an attached exhibit control over contrary allegations in the complaint, Wilson, 276 N.C. at 206, 171 S.E.2d at 879, we hold that plaintiff has failed to state a claim for unfair or deceptive trade practices. See Gray, 352 N.C. at 68, 529 S.E.2d at 681.\nIV. Conclusion\nThe exhibits attached to plaintiff\u2019s complaint contradict its material factual allegations such that plaintiff cannot maintain any of its claims against First Bank. Therefore, we hold that the trial court did not err in granting First Bank\u2019s motion to dismiss for failure to state a claim and affirm the 25 June 2011 order dismissing plaintiff\u2019s claims against First Bank.\nAFFIRMED.\nJudge ELMORE concurs.\nJudge STEELMAN concurs in a separate opinion.\n. Plaintiff also noted the 23 July Rule 54(b) \u201csupplemental order\u201d in its notice of appeal, but makes no argument concerning that order.",
        "type": "majority",
        "author": "STROUD, Judge."
      },
      {
        "text": "STEELMAN, Judge,\nconcurring.\nBased on the allegations contained in plaintiff\u2019s complaint, I am compelled to concur with the opinion in this case. It is not the duty of this Court to construct arguments for the parties on appeal. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).",
        "type": "concurrence",
        "author": "STEELMAN, Judge,"
      }
    ],
    "attorneys": [
      "Ryan McKaig Attorney at Law, PLLC, by Ryan McKaig, for plaintiff-appellant.",
      "Nexsen Pruet, PLLC, by M. Jay DeVaney and Brian T. Pearce, for defendant-appellee First Bank."
    ],
    "corrections": "",
    "head_matter": "HIGHLAND PAVING CO., LLC, Plaintiff v. FIRST BANK and SOUTHEAST DEVELOPMENT OF CUMBERLAND, LLC, Defendants\nNo. COA12-1297\nFiled 7 May 2013\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 certification \u2014 immediately appealable\nThe trial court\u2019s interlocutory order dismissing all claims against defendant First Bank was immediately appealable as the order resolved all claims against that defendant and the trial court certified under N.C.G.S. \u00a7 1A-1, Rule 54(b) that there was no just reason to delay the appeal.\n2. Contracts \u2014 breach of contract \u2014 exhibits contradicted allegations \u2014 no breach\nThe trial court did not err by dismissing plaintiff\u2019s breach of contract claim. Even assuming an enforceable contract between plaintiff and defendant First Bank existed, plaintiff\u2019s exhibits contradicted its allegations that defendant First Bank breached its agreement to hold proceeds from the sale of certain property at issue in escrow.\n3. Fiduciary Relationship \u2014 failure to allege \u2014 breach of fiduciary duty \u2014 constructive fraud\nThe trial court did not err by dismissing plaintiff\u2019s claims for breach of fiduciary duty and constructive fraud. Plaintiff failed to allege a relationship between it and defendant First Bank that could constitute a fiduciary relationship.\n4. Quantum Meruit \u2014 no unjust enrichment \u2014 claim properly dismissed\nThe trial court did not err by dismissing plaintiff\u2019s claim in quantum meruit where defendant was not enriched, much less unjustly enriched, from the transaction at issue.\n5. Unfair Trade Practices \u2014 no sales proceeds \u2014 no conversion\u2014 no deceit\nThe trial court did not err by granting defendant First Bank\u2019s motion to dismiss plaintiff\u2019s claim for unfair and deceptive trade practices. As there were no sales proceeds to escrow from the transaction at issue, defendant First Bank could not have converted those funds to its own use by deceiving plaintiff about the existence of those funds.\nAppeal by plaintiff from order entered on or about 25 June 2012 and 23 July 2012 by Judge Gregory A. Weeks in Superior Court, Harnett County. Heard in the Court of Appeals 28 March 2013.\nRyan McKaig Attorney at Law, PLLC, by Ryan McKaig, for plaintiff-appellant.\nNexsen Pruet, PLLC, by M. Jay DeVaney and Brian T. Pearce, for defendant-appellee First Bank."
  },
  "file_name": "0036-01",
  "first_page_order": 46,
  "last_page_order": 56
}
