Piraino Bros. v. Atlantic Financial Group, Inc.
712 S.E.2d 328
N.C. Ct. App.2011Background
- Piraino Brothers, LLC sues Atlantic Financial Group, McKee Estates, Darrell Avery II, Jeff Avery, Burris firm, Baker, and Baker & Baker over a land development investment; claims include breach of contract, breach of trust, fraud, civil conspiracy, tortious interference, professional negligence, conversion, and unfair/deceptive trade practices.
- Baker formed Piraino Brothers, LLC to contract with Atlantic; Burris firm acted as Atlantic's attorneys and facilitated a real estate flip.
- Piraino wired funds to Burris firm's trust account for a property deal; Burris disbursed funds to McKee for a flip of Atlantic's contracted property.
- McKee acquired the property from Cauthen and transferred it to Atlantic for $2.8M; plaintiff's $2.8M funded construction and loan activities.
- Plaintiff later learned of the flip and misallocation of funds; the jury found partial liability against Baker for professional negligence but also applied contributory negligence to Plaintiff.
- Trial court granted summary judgment to Burris Defendants on express trust and civil conspiracy; the trial court denied new-trial relief for Plaintiff on those issues, and Plaintiff appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burris Defendants: breach of express trust and civil conspiracy | Piraino argues there are material facts on express trust and conspiracy | Burris Defendants claim no express trust; no underlying conspiracy due to lack of preserved theory | No genuine issues; summary judgment affirmed on these claims |
| Admission of contributory negligence evidence in Baker case | Piraino asserts improper instruction and expert testimony on contributory negligence | Baker argues proper, supported by evidence; contributory negligence defense valid | Court affirmed admission and jury instruction; no reversible error |
Key Cases Cited
- Noblot v. Timmons, 177 N.C.App. 258 (2006) (fiduciary duties and trust disbursement by attorneys; Rule 1.15-2(m) duties discussed)
- Wilmington Star-News v. New Hanover Regional Medical Center, 125 N.C.App. 174 (1997) (summary judgment standard and de novo review on appeal)
- Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729 (1998) (summary judgment burden and standard)
- State v. Sharpe, 344 N.C. 190 (1996) (law not permitting swapping appellate theories; preservation requirement)
- State v. Holliman, 155 N.C.App. 120 (2002) (illustrates preservation and theory-switching principles)