“Oh what a tangled web we weave,
When first we practise to deceive!”
Sir Walter Scott, Marmion, Canto VI, Stanza 17.
Over a period of more than ten years, the parties to this case have woven this “tangled web” of claims and counterclaims. After carefully untangling the knots as best we can based upon the record before us and the applicable law, we affirm the trial’s court’s order granting summary judgment in favor of ECDG South, LLC, John L. Edmonds, and Rudolph Clark, Jr. (“defendants”), from which T-WOL Acquisition Company, Inc., Terence A. Colbert, and Hal H. Harris (“plaintiffs”) have appealed.
I. Factual Background
The weaving of this web of deception started sometime in the early 1990’s, when defendant Edmonds began trying to develop low income housing on three parcels of real property (“the disputed property”) located in Durham, North Carolina. Because defendant Edmonds lived in New York, he needed someone present in North
Carolina- to assist him with this process. He first enlisted Gilford
Based upon the affidavits, depositions, and documents filed with the parties’ summary judgment motions, along with the parties’ pleadings, it appears that in 1999 defendant Edmonds approached plaintiff Harris and asked for his assistance in developing low-income housing in Durham. For this purpose they formed T-WOL Acquisition Company, Inc. (“T-WOL”) on 19 September 2000. On 25 October 2000, plaintiff Harris and defendant Edmonds were named as directors; 500 shares of T-WOL stock were issued to plaintiff Harris and 350 shares were issued to defendant Edmonds; defendant Edmonds was elected as president and plaintiff Harris as vice president and secretary; and the corporation adopted bylaws. Also on 25 October 2000, defendant Edmonds assigned to T-WOL his rights to “amounts loaned to Gilford A. Finch and Fair City-Pines Corporation” and “real property promised in payment thereof by Fair City-Pines Corporation . . . and Gilford A. Finch[,]” which arose from defendant Edmonds’ first attempt to develop the same real property in Durham and the ensuing lawsuit, as discussed above.
One day later, on 26 October 2000, plaintiff Harris signed stock certificates purporting to transfer his 500 shares to plaintiff Colbert. 1 Despite the fact that plaintiff Harris had just transferred his stock to plaintiff Colbert, on 21 December 2000, defendant Edmonds and plaintiff Harris signed a stock assignment agreement which affirmed that defendant Edmonds and plaintiff Harris were the only shareholders of T-WOL. Only twenty days later, on 9 January 2001, plaintiff Harris filed for Chapter 7 bankruptcy protection claiming over $42 million in debts and $11,398.00 in assets. Plaintiff Harris did not disclose any interest in T-WOL or any transfer of stock in T-WOL on his bankruptcy petition. On 20 March 2001, Fair City-Pines Corporation transferred the disputed property by general warranty deed to T-WOL pursuant to the assignment by defendant Edmonds. On 13 June 2001, plaintiff Harris received a discharge of debt from the bankruptcy court.
About two years later, on 1 June 2003, plaintiff Colbert signed stock certificates transferring the 500 shares of T-WOL stock back to plaintiff Harris. About three years after this transfer, on 5 May 2005, the North Carolina Department of the Secretary of State administratively dissolved T-WOL “for failure to file an annual report[.]”
About seven years after plaintiff Harris’s discharge in bankruptcy and three years after the administrative dissolution of plaintiff T-WOL, on 11 January 2008, defendant Clark filed articles of organization for ECDG South as a North Carolina limited liability company. On 24 April 2008, defendant Edmonds executed a special warranty deed as president of T-WOL transferring the disputed property to ECDG South, LLC. On 15 August 2008, defendant Edmonds as a member/manager of ECDG South LLC executed a deed of trust on the disputed property to obtain a loan for ECDG South LLC from NewBridge Bank.
Over a year after the transfer of the disputed property to ECDG South, LLC, on 22 April 2009, without advising defendant Edmonds of their plans to reinstate T-WOL, plaintiffs Colbert and Harris filed an application for reinstatement for T-WOL with the Secretary of State. After they had “caused all the back year tax returns and annual reports to be filed” the dissolution was cancelled and T-WOL was reinstated “effective as of the 5th day of May, 2005.”
On 25 August 2009, plaintiffs filed a verified complaint against defendants alleging that defendant John L. Edmonds had wrongfully transferred real property from plaintiff
1. Defendants’ Motion to Amend is allowed in part and denied in part.
a. To the extent the Amended Answer raises affirmative defense those defenses/amendments are allowed, including Breach of Fiduciary Obligation, Civil Conspiracy, Forgery, and False Pretenses.
b. To the extent the Amended Answer attempts to seek affirmative relief through counterclaims/amendments [those] are denied, without prejudice.
2. Defendants can raise these denied amendments after the conclusion of the trial in this matter, either as equitable remedies, in a bifurcated trial, or in a new trial, at the discretion of the Trial Judge.
3. Defendants cannot pursue Discovery on their counterclaims until such time as those claims are raised.
On or about 1 April 2011, plaintiffs filed a motion for summary judgment, with supporting affidavits and documentation. Defendants filed affidavits with supporting documentation in response to plaintiffs’ motion.
By order entered 19 April 2011, the trial court granted summary judgment in favor of defendants, ruling that
as a result of the Court’s application of judicial estoppel in its discretion on the issues of stock ownership and stock transfer, which estoppel arises from Plaintiff Harris’s sworn statements in the aforementioned bankruptcy proceedings, see Bioletti v. Biolette,693 S.E.2d 691 (N.C. App. 2010), and the Court being of the opinion, therefore, that summary judgment in favor of the Plaintiffs should be denied and Summary Judgment in favor of the Defendants should be granted[.]
The trial court entered summary judgment in favor of defendants, dissolved the Us pendens, and ordered that the corporate records for T-WOL be delivered to counsel for defendant Edmonds. Plaintiffs filed timely notice of appeal from the trial court’s 19 April 2011 order.
II. Summary judgment
The standard of review from a motion for summary judgment is well established:
Summary judgment is appropriate ‘if 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 a judgment as a matter of law.’ N.C. Gen. Stat. § 1A-1, Rule 56(c). ‘A trial court’s grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party.’ Sturgill v. Ashe Memorial Hosp., Inc.,186 N.C. App. 624 , 626,652 S.E.2d 302 , 304 (2007), disc. review denied,362 N.C. 180 ,658 S.E.2d 662 (2008).
Plaintiffs argue that the trial court erred in “granting summary judgment in favor of defendants!)]” Specifically, plaintiffs contend that (1) a material issue of fact existed as to plaintiffs’ claims for breach of fiduciary duty, constructive fraud, civil conspiracy, usurpation of corporate opportunity, and unfair and deceptive trade practices; (2) declaratory judgment should have been entered in favor of plaintiffs; (3) the trial court erred in applying the doctrine of judicial estoppel; (4) the trial court erred in applying the law of resulting trust; and (5) the trial court erred in ordering T-WOL to surrender its records to defendants’ counsel.
Defendants counter that the trial court’s order should be affirmed as (1) plaintiff Harris is barred by judicial estoppel from claiming an ownership interest in T-WOL which makes defendant Edmonds the sole shareholder of T-WOL; (2) plaintiff Colbert is barred by the statute of limitations from claiming ownership of T-WOL stock; (3) the trial court correctly applied the doctrine of resulting trust as defendant Edmonds had “provided all the consideration for the acquisition and maintenance of [the disputed property;]” (4) plaintiff Colbert “had no right to apply for reinstatement of the corporate status of T-WOL after its Administrative Dissolution in 2005[;]” (5) as the sole owner of T-WOL defendant Edmunds is entitled to the corporate records of T-WOL; (6) plaintiffs received defendants motion for summary judgment 13 days before the hearing, within the time permitted by Rule 56(c); and (7) claims against defendant Clark were properly dismissed because plaintiffs failed to show that they had any contract with defendant Clark. As the issue of judicial estoppel is dispositive, we address it first. Plaintiffs contend that the trial court erred in considering the doctrine of judicial estoppel and in the alternative, erred in its application of the doctrine.
A. Shareholder derivative suit
Before addressing judicial estoppel, we must note that although plaintiffs have not referred to it as such, this lawsuit is essentially a derivative lawsuit, as both individual plaintiffs seek to redress alleged wrongs to the corporation, plaintiff TWOL, and to have the disputed property returned to T-WOL. Although the complaint requests recovery of damages for all of the “plaintiffs” without distinguishing between the rights of the corporation as opposed to the individual plaintiffs, and prays “[t]hat the Defendants be ordered to transfer the property back to Plaintiffs, free of any and all encumbrances and liens, pursuant to the [Declaratory Judgment] Cause of Action,” all of the claims arise from the actions of the defendants in regard to plaintiff T-WOL and the disputed property. 2 (emphasis added.) We also note that defendants have not argued that this is properly a derivative lawsuit, or that plaintiffs have failed to allege the requisites of a derivative lawsuit.
As a general rule, shareholders have no right to bring actions “in their [individual] name[s] to enforce causes of action accruing to the corporation^” Fulton v. Talbert,255 N.C. 183 , 185,120 S.E.2d 410 , 412 (1961), but must assert such claims derivatively on behalf of the corporation. Robinson § 17-2(a) at 333. A correct characterization of the shareholder’s action as derivative or individual may be crucial, as there are certain mandatory procedural and pleading requirements for a derivative action. F.H. O’Neal & R. Thompson,O’Neal’s Oppression of Minority Shareholders § 7:07 (2d ed. 2000), p. 52. Some procedural restrictions proceed from concerns about prevention of a multiplicity of lawsuits and concern over “who should properly speak for the corporation.” Id. Other restrictions arise from concerns that derivative actions will be misused by “ ‘self-selected advocate[s]’ pursuing individual gain rather than the interests of the corporation or the shareholders as a group, bringing costly and potentially meritless ‘strike suits.’ ” Id.
Thus, for example, a shareholder who brings a derivative action in North Carolina must show that he or she “[f] airly and adequately represents the interests of the corporation in enforcing the right of the corporation[,]” N.C. Gen. Stat. § 55-7-41 (1999), and may not commence the action until written demand on the corporation’s directors has been made and the statutory period has elapsed. N.C. Gen. Stat. § 55-7-42 (1999). Further, the corporation may then determine by a majority vote of “independent” directors that maintenance of the derivative action “is not in the best interest of the corporation.” N.C. Gen. Stat. § 55-7-44(a)(b)(l) (1999). “Independent” directors may include persons who have been nominated or elected by persons who are defendants in the derivative action, persons who are themselves defendants in the derivative action, and persons who approve of the act being challenged. N.C. Gen. Stat. § 55-7-44(c)(l)(2)(3) (1999). “If the corporation commences an inquiry into the allegations set forth in the demand or complaint, the court may stay a derivative proceeding for a period of time the court deems appropriate.” N.C. Gen. Stat. § 55-7-43 (1999). Finally, the derivative suit may not be settled without the approval of the court. N.C. Gen. Stat. § 55-7-45(a) (1999). It is of obvious importance to the parties that the recovery in a derivative action goes to the corporation, not to the plaintiff personally. Outen v. Mical,118 N.C. App. 263 , 266,454 S.E.2d 883 , 885 (1995).
Norman v. Nash Johnson & Sons’ Farms, Inc.,
B. Judicial estoppel
Defendants claim that although Plaintiff Harris may nominally be a shareholder of T-WOL, he is judicially estopped from exercising any rights as a shareholder based upon his failure to identify his interest in T-WOL in his 9 January 2001 bankruptcy petition, in which he was required by law to identify this interest but he did not, and he obtained a discharge in bankruptcy. Thus, we must first consider whether plaintiff Harris, as a shareholder, is barred from participation in this action.
1. Consideration
Plaintiffs argue that defendants should not have been allowed to present the affirmative defense of judicial estoppel as they did not plea this affirmative defense in their amended answer as required by N.C. Gen. Stat. § 1A-1, Rule 8(c). Plaintiffs also argue that since the trial court’s prior 23 March 2011 order, regarding defendants’ motion to amend, denied defendants’ motion to add counterclaims and allowed certain affirmative defenses, not including judicial estoppel, the trial court erred in allowing defendants to “present the affirmative claim of judicial estoppel” in violation of its prior order.
Defendants contend that contrary to plaintiffs’ arguments the trial court’s 23 March 2011 order regarding the amendment of defendants’ answer stated that defendants
N.C. Gen. Stat. § 1A-1, Rule 8(c) (2009) states that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively.. . estoppel . . . and any other matter constituting an avoidance or affirmative defense.” Generally, estoppel is an affirmative defense which must be plead with certainty.
Duke University v. St. Paul Mercury Ins.
Co.,
Yet the failure to plead judicial estoppel does not end our inquiry, as “although the failure to plead an affirmative defense ordinarily results in its waiver, the parties may still try the issue by express or implied consent.”
Id.
at 673,
When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
Our Supreme Court discussed the application of N.C. Gen. Stat. § 1A-1, Rule 15(b) as follows:
[T]he implication of Rule 15(b) ... is that a trial court may not base its decision upon an issue that was tried inadvertently. Implied consent to the trial of an unpleaded issue is not established merely because evidence relevant to that issue was introduced without objection. At least it must appear that the parties understood the evidence to be aimed at the unpleaded issue.
Eudy v. Eudy,
2. Application
Plaintiffs argue next that the trial court erred in its application of the doctrine of judicial estoppel. Plaintiffs, citing
Whitacre P’ship v. Biosignia, Inc.,
Defendants counter that the trial court did not abuse its discretion in applying judicial estoppel. Defendants argue that the undisputed facts establish that plaintiff Harris denied in his bankruptcy being an officer or director in the corporation, any ownership interest in T-WOL, or any transfer of T-WOL stock; in contrast plaintiffs’ pleadings state that plaintiff Harris was the owner of T-WOL stock; despite the omission of T-WOL from his bankruptcy property listings, plaintiff Harris received the benefit of bankruptcy discharge; this omission was not inadvertent; and plaintiff Harris was properly judicially estopped from claiming an ownership interest in T-WOL.
We have recently summarized the doctrine of judicial estoppel as follows:
Our Supreme Court first recognized the doctrine of judicial estoppel in Whitacre P’ship v. Biosignia, Inc.,358 N.C. 1 ,591 S.E.2d 870 (2004), and noted that “the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.” Id,. at 28,591 S.E.2d at 888 (quotation omitted). The purpose of this doctrine is “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment[.]” Id. (quotation omitted). “[Jjudicial estoppel forbids a party from asserting a legal position inconsistent with one taken earlier in the same or related litigation. ’’Price v. Price,169 N.C. App. 187 , 191,609 S.E.2d 450 , 452 (2005). In Whitacre P’ship, our Supreme Court set forth three factors which may be considered in determining whether the doctrine is applicable:
First, a party’s subsequent position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding might pose a threat to judicial integrity by leading to inconsistent court determinations or the perception that either the first or the second court was misled. Third, courts consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Whitacre P’ship,358 N.C. at 29 ,591 S.E.2d at 888-89 (internal citations and quotations omitted). The first factor is the only factor that must be present for judicial estoppel to apply. Wiley v. United Parcel Serv., Inc.,164 N.C. App. 183 , 188,594 S.E.2d 809 , 812 (2004). . . . “[judicial estoppel is to be applied in the sound discretion of our trial courts.” Whitacre P’ship,358 N.C. at 33 ,591 S.E.2d at 891 .
Estate of Means v. Scott Elec.
Co.,_N.C. App._,_,
In
Bioletti v. Bioletti,
[a]lthough this Court has no bankruptcy jurisdiction and is reluctant, for that reason, to render an opinion concerning the effect that any understatement of Plaintiff’s claim to monies resulting from William Bioletti’s death may have had on the outcome of his bankruptcy proceeding,
also determined that the “Plaintiff would obtain an unfair advantage in the event that we were to overturn the trial court’s decision to the effect that Plaintiff was judicially estopped from proceeding against Defendant in this case” as the defendant had paid all of the plaintiff’s creditors in full in the bankruptcy and, if successful in his suit, he would also receive “an amount in excess of $ 92,000 from Defendant[.]”
Id.
at 279,
Accordingly, we must first consider whether the position that plaintiff Harris has taken in the case before us is inconsistent with the position that he took in the bankruptcy proceeding. It is undisputed that approximately two and a half months after the formation of T-WOL, on 9 January 2001, defendant Harris filed for Chapter 7 bankruptcy protection in the Southern District of New York, listing total liabilities of over $42 million and total assets of $11,398.00. Schedule B of the bankruptcy filings required defendant Harris to list “all personal property of the debtor of whatever kind” including “Stock and interests in incorporated and unincorporated businesses.” 4 Plaintiff Harris listed his ownership of 100 shares of “The Winback Organization Ltd” but made no mention of any ownership of T-WOL stock. We note that while plaintiff Harris’s bankruptcy was pending, Fair City-Pines Corporation on 20 March 2001 transferred by general warranty deed the disputed property to T-WOL pursuant to the assignment by defendant Edmonds. 5 About two weeks later, in his ongoing bankruptcy proceeding, plaintiff Harris filed his “Statement of Financial Affairs” on 3 April 2001. In this filing, plaintiff Harris was required to list, inter alia, “all other property, other than property transferred in the ordinary course of business or financial affairs of the debtor, transferred either absolutely or as security within one year immediately preceding the commencement of this case.” Plaintiff Harris did not list shares of T-WOL that he allegedly transferred to plaintiff Colbert. The bankruptcy filing also required plaintiff Harris to list any income received “other than from employment, trade, profession, or operation of the debtor’s business during the two years immediately preceding the commencement of this case.” Again, plaintiff Harris did not list the $10,000 he claimed he had received from plaintiff Colbert in exchange for his 500 shares in T-WOL but only listed $500 in lottery winning in 1999. The bankruptcy filing also required plaintiff Harris to
list the names and addresses of all businesses in which the debtor was an officer, director, partner, or managing executive of a corporation . . . within the two years immediately preced ing the commencement of this case or in which the debtor owned 5 percent or more of the voting or equity securities within the two years immediately preceding the commencement of this case.
Again, plaintiff Harris made no mention of his previous or ongoing involvement in T-WOL. Plaintiff Harris received a discharge from the bankruptcy court in June of 2001.
In contrast to his bankruptcy filings, plaintiffs in their verified complaint alleged that plaintiff Harris was the sole director when T-WOL was incorporated, he was later named as one of the two directors, one of the two shareholders, and was vice president and
We also hold that plaintiff Harris succeeded in persuading the bankruptcy court to accept that he had no involvement or ownership interest in T-WOL as he never disclosed any involvement in T-WOL to the bankruptcy court and ultimately received a discharge in bankruptcy. Like the Court in
Bioletti,
we will not speculate as to whether the bankruptcy court would have ruled differently in his bankruptcy proceeding if plaintiff Harris had disclosed his involvement in T-WOL, but if we were to rule in his favor, reversing summary judgment, and plaintiffs ultimately succeed in their claims at trial, plaintiff Harris would receive his interest as a shareholder in T-WOL, which would then have value as T-WOL would also own the disputed property, allowing him to derive an unfair advantage from his inconsistent positions. Therefore, we hold that the trial court did not abuse its discretion in its application of the doctrine of judicial estoppel as to plaintiff Harris and plaintiff Harris is estopped from claiming any ownership interest in or position as an officer or director of T-WOL. We also note that our application of the doctrine of judicial estoppel to plaintiff Harris creates an insurmountable obstacle to plaintiffs’ remaining claims, as discussed below.
See Gibson,
C. Plaintiff Colbert
Plaintiffs also contend that the trial court “misapplied the doctrine of judicial estoppel by using it to bar not only Harris’s claims, but also the claims asserted by T-WOL and Colbert.” Defendants argue that the only shareholders of T-WOL were plaintiff Harris and defendant Edmonds; plaintiff Harris is judicially estopped from claiming to be a shareholder or that he transferred shares to plaintiff Colbert; and defendant Edmonds as the sole shareholder of T-WOL could “dissolve the corporation and dispose of its assetsf.]” As discussed below, plaintiffs’ claims are ultimately based on the existence of and breach of a fiduciary duty by the defendants to each particular plaintiff. To answer the parties’ contentions, we must first look at the forecast of evidence to determine plaintiff Colbert’s involvement or position in T-WOL, as he is alleged by plaintiffs to be the president, director, and a shareholder in T-WOL, to determine what duty, if any, defendants owed plaintiff Colbert.
1. Status as Shareholder
N.C. Gen. Stat. § 55-1-40(22) (2009) defines a “Shareholder” as
the person in whose name shares are registered in the records of a corporation orthe beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation.
Plaintiffs have presented inconsistent allegations regarding plaintiff Colbert’s status as shareholder. First, plaintiffs alleged in their verified complaint that plaintiff Colbert is a shareholder in T-WOL based upon plaintiff Harris’s transfer of his 500 shares to plaintiff Colbert in 26 October 2000. 6 But in his deposition, plaintiff Colbert admitted that he was never a stockholder in T-WOL because defendant Edmonds did not sign the share certificates. In his deposition, he repeatedly claimed to have “an interest” in T-WOL because he had provided $10,000.00 to Harris for use in the development of the disputed property but ultimately admitted that this was a personal loan to Harris and he was not a shareholder in T-WOL. However, in their brief on appeal, plaintiffs argue that the shares were properly transferred to plaintiff Colbert because they were endorsed by plaintiff Harris and delivered to plaintiff Colbert. Yet at oral argument before this Court, plaintiffs took the position that even plaintiffs do not actually know whether plaintiff Harris or plaintiff Colbert is a shareholder, but assert that this is irrelevant as summary judgment should be-reversed either way, as one of them must be. Defendants counter that plaintiff Colbert was never a shareholder in T-WOL because the shares were never properly transferred to plaintiff Colbert as they were never delivered or endorsed by defendant Edmonds, as president.
Despite their contradictory positions, plaintiffs allege in their verified complaint, and the corporate records of T-WOL show, that on 1 June 2003, plaintiff Colbert transferred the 500 shares of T-WOL stock back to plaintiff Harris. Thus, if the original transfer from plaintiff Harris was valid and plaintiff Colbert was a shareholder, he ceased to be a shareholder when he transferred the 500 shares back to plaintiff Harris. Accordingly, the evidence, even when viewed in the light most favorable to plaintiffs, tends to show that plaintiff Colbert is not and was not at the time of filing of this lawsuit a shareholder of T-WOL. Since we have already determined that plaintiff Harris is estopped from claiming to be a shareholder in T-WOL, and plaintiff Colbert is not a shareholder in T-WOL, defendant Edmonds is the sole shareholder of T-WOL.
2. Director and Officer
Next, we turn to examine plaintiff Colbert’s other positions in T-WOL. Even if he was not a shareholder, plaintiff Colbert claims to have authority to act for plaintiff T-WOL as president. Plaintiff Colbert testified that he was president from 2005 onward and plaintiff Harris testified that defendant Edmonds signed the consent to action forms electing plaintiff Colbert as president. According to T-WOL’s corporate records, plaintiff Colbert was elected as a director at the latest on 24 October 2003 by “consent to action without meeting of the shareholders” and elected as president on 25 October 2005. As noted above, defendant Edmonds transferred the contested real property from T-WOL to ECDG South on 24 April 2008. Therefore, according to plaintiffs’ arguments, plaintiff Colbert, not defendant Edmonds, was the president and director of T-WOL when the disputed property was transferred out of T-WOL.
Defendant Edmonds states in his affidavit that he has never met plaintiff Colbert, he was never notified of the consent without meeting votes, he never consented to the appointment of plaintiff Colbert as president and director, and those “documents are fraudulent and do not represent my will or consent.” Also included in the record is an affidavit from Albert H. Lyter, III, an expert in forensics, in which he states that he examined the consent to action without meeting documents and opined that “they were not prepared in the year indicated on the document” and the signers “signed them all at once” concluding that the documents “were not prepared over the time period indicated on the documents (2000 to 2005) but were prepared simultaneously by each signer.” Therefore, there is a genuine issue of fact as
Plaintiff Colbert’s claims for constructive fraud, civil conspiracy, usurpation of corporate opportunity, and unfair and deceptive trade practices are all based on plaintiffs’ claims of an alleged breach of fiduciary duty by defendant Edmonds in transferring the disputed property from T-WOL to ECDG South LLC and defendant Clark’s participation in this breach of duty.
See Governor’s Club Inc. v. Governors Club Ltd. P’ship,
Under some circumstances, the action of all the shareholders of a close corporation bind the corporation even if the corporation is considered to be a legal entity separate from the shareholders. A corporation is ordinarily bound by acts of its shareholders and directors “only when they act as a body in regular session or under authority conferred at a duly constituted meeting.” Park Terrace, Inc. v. Phoenix Indemnity Co.,241 N.C. 473 , 478,85 S.E. 2d 677 , 680 (1955), on rehearing,243 N.C. 595 ,91 S.E. 2d 584 (1956). Nevertheless,“’[t]he contracts of the sole shareholder, or all the shareholders, will bind the corporation in modem law, although not made by the authority of the board of directors, since they are the only persons beneficially interested, aside from corporate creditors. If they do not distinguish between corporate business and their individual affairs, or waive formalities established for their benefit, there is no reason why the courts should insist on such formalities. The contract of the owners of all shares will be regarded as binding on the corporation if so intended.’ ” Philadelphia Life Insurance Co. v. Crosland-Cullen Co.,234 F. 2d 780 , 783 (4th Cir. 1956), quoting Ballentine on Corporations § 126, p. 296.
D. Plaintiff T-WOL
Since plaintiff Harris has been eliminated by judicial estoppel and plaintiff Colbert has been eliminated because T-WOL has only one shareholder, only claims of plaintiff T-WOL remain. N.C. Gen. Stat. § 55-3-02(1) (2009) states that a corporation has the power “To sue and be sued, complain and defend in its corporate name.”
9
However, as defendant Edmonds is the sole shareholder and he did not owe a fiduciary duty to the directors or officers of T-WOL, he also did not owe a fiduciary duty to T-WOL, the corporation,
see Freese,
110 N.C. App. at'37,
E. Defendants Clark and ECDG South LLC
Plaintiffs argue that defendant Clark as the accountant for T-WOL breached his fiduciary duty to T-WOL by intentionally failing to file tax returns and annual reports with the Secretary of State which resulted in T-WOL’s administrative dissolution; defendants Clark and Edmonds subsequently
Plaintiffs’ claims against Clark are also based upon the same actions which they claim harmed plaintiff T-WOL, and we have already determined that defendant Edmonds, as sole shareholder, did not owe any duty to either T-WOL or its officers or directors. We are unable to discern how defendant Clark, alleged to be the accountant for T-WOL, could owe any duty to T-WOL above that owed by defendant Edmonds. For the same reasons as discussed above, the trial court properly dismissed plaintiffs’ claims of breach of fiduciary duty, civil conspiracy, constructive fraud, and unfair and deceptive trade practice against defendant Clark.
Plaintiffs’ claims against ECDG South, LLC were also properly dismissed as its only role in this lawsuit is that it is the company to which the disputed property was transferred, and as discussed above, that transfer was valid. As we have affirmed summary judgment in favor of defendants, we need not address the parties’ remaining arguments.
For the foregoing reasons, we affirm the trial court’s order.
AFFIRMED.
Notes
. Corporate records for T-WOL from 2000 to 2005 show that plaintiff Colbert was elected as a director and later as president, but the parties dispute the validity of these corporate records and elections, as discussed below.
. For example, the complaint alleges that defendants Edmonds and Clark deliberately failed “to file the appropriate tax returns and annual reports” for T-WOL and that this action “underscores how Defendants Edmonds and Clark had conspired, against Plaintiffs, over a long period of time, to steal T-WOL’s Property.” There is no allegation that either individual plaintiff has ever had any ownership interest in the disputed property.
. Plaintiff Harris also concedes that defendant Edmonds was not his attorney in the bankruptcy matter and that he sought counsel from other attorneys before filing his bankruptcy petition.
. 11 U.S.C. § 521(1) (2009) requires a debtor seeking bankruptcy protection to file a schedule of assets, liabilities, current income, current expenditures, and a statement of the debtor’s financial affairs. We also note that property of a bankruptcy estate is defined broadly to include: “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (2009).
. “The duty of disclosure in a bankruptcy proceeding is a continuing one[.]”
Browning Mfg. v. Mims (In re Coastal Plains, Inc.),
. Actually, the complaint alleged that both plaintiffs Harris and Colbert were simultaneously shareholders of T-WOL when the lawsuit was filed, so that there were three shareholders total, a position which appears to be impossible under the facts alleged.
. At the summary judgment hearing, plaintiffs’ counsel abandoned their claim for conversion of the contested real property.
See Norman,
. The exception to this rule is that controlling or majority shareholders owe a fiduciary duty to minority shareholders in a closely held corporation.
See Freese,
. Defendants have not raised any arguments regarding the standing of plaintiffs Harris or Colbert to bring this action on behalf of T-WOL and we express no opinion on this issue.