MCCARRON v. HOWELL, 2024 NCBC 73

STATE OF NORTH CAROLINA
UNION COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
24CVS001900-890
SHAUN MCCARRON,
Plaintiff,
v.
HAROLD HOWELL, SPARTAN
CORPORATE ADVISERS, INC.; US
CAPTIVE GROUP, LLC; and RISK
SOLUTIONS, INC.,
Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S COMPLAINT
THIS MATTER is before the Court on Defendants Harold Howell, Spartan
Corporate Advisors, Inc.1 (“Spartan”), US Captive Group, LLC (“US Captive”), and
Risk Solutions, Inc.’s (“Risk Solutions”) (collectively, “Defendants”) Motion to Dismiss
Plaintiff’s Complaint (“Motion to Dismiss,” ECF No. 10).
THE COURT, having considered the Motion to Dismiss, the parties’ briefs,
the arguments of counsel, the applicable law, and all appropriate matters of record,
CONCLUDES that the Motion to Dismiss should be GRANTED in part and
DENIED in part.
Weaver, Bennett & Bland, P.A., by Michael David Bland and David
Bruce Sherman, and Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by
Andrew Howell, for Plaintiff Shaun McCarron.
Marcellino & Tyson, PLLC, by Clay A. Campbell and Daniel Vander
Woude, for Defendants Harold Howell; Spartan Corporate Advisors, Inc.;
US Captive Group, LLC; and Risk Solutions, Inc.
Davis, Judge.
1 The Court notes that the correct spelling of this entity’s name is Spartan Corporate
Advisors, Inc., but the name is misspelled in the caption of the Complaint as Spartan
Corporate Advisers, Inc.
McCarron v. Howell, 2024 NCBC 73.

INTRODUCTION
1. 	Plaintiff Shaun McCarron obtained a monetary judgment in a prior
lawsuit against Defendant Risk Solutions in 2022. In the current action, McCarron
asserts that the owner and director of Risk Solutions, Harold Howell, fraudulently
transferred the assets of the company to several newly formed companies for the
purpose of preventing McCarron from being able to collect on that judgment. In the
present Motion to Dismiss, Howell, Risk Solutions, and the newly formed companies
all seek dismissal of the claims asserted against them by McCarron in this action.
FACTUAL AND PROCEDURAL BACKGROUND
2. 	The Court does not make findings of fact in connection with a motion to
dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and
instead recites those facts contained in the complaint (and in documents attached to,
referred to, or incorporated by reference in the complaint) that are relevant to the
Court’s determination of the motion. 	See, e.g., Window World of Baton Rouge, LLC
v. Window World, Inc., 2017 NCBC LEXIS 60, at *11 (N.C. Super. Ct. July 12, 2017).
3. 	McCarron is a former resident of Union County, North Carolina, who
currently lives in Oregon. (Compl. ¶ 1.)
4. 	Defendant Howell is a resident of Union County, North Carolina.
(Compl. ¶ 2.)
5. 	Defendant 	Spartan 	is 	a 	North 	Carolina 	corporation, 	which 	was
established on 10 December 2019 and maintains its principal place of business in
Mecklenburg County, North Carolina. (Compl. ¶ 4.)

6. 	At all relevant times, Howell has served as Spartan’s president and
registered agent. (Compl. ¶ 5.)
7. 	Defendant US Captive is a North Carolina limited liability company,
which was established on 30 September 2019. (Compl. ¶ 7.)
8. 	At all relevant times, Howell has served as US Captive’s president and
managing member. (Compl. ¶ 7.)
9. 	Defendant 	Risk 	Solutions 	is 	a 	now-dissolved 	North 	Carolina
corporation, which maintained its principal place of business in Mecklenburg County,
North Carolina. (Compl. ¶¶ 3, 21.)
10. 	At all relevant times, Howell was an officer, director, and the controlling
shareholder of Risk Solutions. (Compl. ¶ 17.)
11. 	On 15 May 2018, McCarron filed a civil action against Howell, Risk
Solutions, and another entity, Bravo Six, LLC, in Union County Superior Court (the
“Prior Action”). (Compl. ¶ 12.)
12. 	During the pendency of the Prior Action, Howell formed Spartan and US
Captive for the purpose of allowing Risk Solutions’ business to continue if a judgment
was later entered against it. (Compl. ¶ 19.)
13. 	To that end, Howell subsequently began transferring physical assets,
accounts receivable, customers, clients, and funds belonging to Risk Solutions to
himself, his family members, Spartan, and US Captive. (Compl. ¶ 20.)
14. 	The Complaint asserts that Risk Solutions did not receive reasonably
equivalent value in exchange for the transfers and that the company was either

insolvent prior to the transfers or became insolvent due to the transfers. (Compl. ¶¶
37–38.)
15. 	On 13 October 2020, Risk Solutions filed an annual report with the
North Carolina Secretary of State. (Compl. ¶ 15.) However, the company was later
issued two notices from the Secretary of State’s office stating that its 2021 and 2022
annual reports had not been filed and were past due. (Compl. ¶ 16.)
16. 	On 31 October 2022, a final judgment was entered in the Prior Action,
in which Risk Solutions was found liable to McCarron for the amount of $373,110.99
(the “Judgment”). (Compl. ¶ 13.)
17. 	Risk Solutions has not made any payments to satisfy the Judgment in
whole or in part. (Compl. ¶ 14.)
18. 	Risk Solutions was administratively dissolved by the Secretary of State
on 17 February 2023. (Compl. ¶ 21.)
19. 	On 14 June 2024, McCarron initiated the present action by filing a
Complaint in Union County Superior Court naming Howell, Risk Solutions, Spartan,
and US Captive as Defendants. In the Complaint, McCarron has asserted claims for
breach of fiduciary duty and constructive fraud against Howell and Risk Solutions,
along with claims for fraudulent transfer, unfair and deceptive trade practices
(“UDTP”), and facilitation of fraud/civil conspiracy against all Defendants. (ECF No.
3.) 	The Complaint further alleges that Howell was the alter ego of Risk Solutions,
Spartan, 	and 	US 	Captive 	and 	that 	their 	corporate 	form 	should 	therefore 	be
disregarded so that Howell is held individually liable for the wrongful acts of these
entities. (ECF No. 3.)

20. 	This action was designated as a complex business case and assigned to
the undersigned on 14 June 2024. (ECF Nos. 1–2.)
21. 	On 22 August 2024, Defendants filed the present Motion to Dismiss.
22. 	On 5 November 2024, the Court held a hearing on the Motion to Dismiss
at which all parties were represented by counsel.
23. 	The Motion to Dismiss has been fully briefed and is now ripe for
resolution.
LEGAL STANDARD
24. 	In ruling on a motion to dismiss under Rule 12(b)(6), the Court may only
consider the complaint and “any exhibits attached to the complaint,” Krawiec v.
Manly, 370 N.C. 602, 606 (2018), in order to determine whether “as a matter of law,
the allegations of the complaint, treated as true, are sufficient to state a claim upon
which relief can be granted under some recognized legal theory,” Forsyth Mem’l
Hosp., Inc. v. Armstrong World Indus., Inc., 336 N.C. 438, 442 (1994) (cleaned up).
The Court must view the allegations in the complaint “in the light most favorable to
the non-moving party.” 	Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5
(2017) (cleaned up).
25. 	“It is well established that dismissal pursuant to Rule 12(b)(6) is proper
when (1) the complaint on its face reveals that no law supports the plaintiff’s claim;
(2) the complaint on its face reveals the absence of facts sufficient to make a good
claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s
claim.” Corwin v. British Am. Tobacco PLC, 371 N.C. 605, 615 (2018) (cleaned up).

ANALYSIS
A. 	Breach of Fiduciary Duty
26. 	“It is well-settled that to establish a claim for breach of fiduciary duty,
a plaintiff must show that: (1) the defendant owed the plaintiff a fiduciary duty; (2)
the defendant breached that fiduciary duty; and (3) the breach of fiduciary duty was
a proximate cause of the injury to the plaintiff.” Lafayette Vill. Pub, LLC v. Burnham,
2022 NCBC LEXIS 104, at *14–15 (N.C. Super. Ct. Sept. 12, 2022) (cleaned up).
27. 	As noted above, this claim has been asserted against both Howell and
Risk Solutions.
28. 	“As a general rule, directors of a corporation do not owe a fiduciary duty
to creditors of the corporation.” 	Hale v. MacLeod, __ N.C. App. __, 2024 N.C. App.
LEXIS 525, at *22 (2024) (quoting Whitley v. Carolina Clinic, Inc., 118 N.C. App. 523,
526 (1995)).
29. 	However, “a corporate director has a fiduciary duty to creditors under
circumstances amounting to a ‘winding-up’ or dissolution of the corporation.” Keener
Lumber Co. v. Perry, 149 N.C. App. 19, 31 (2002) (quoting Whitley, 118 N.C. App. at
528)).
30. 	Defendants first argue that dismissal of this claim is proper as to Howell
because the Complaint fails to adequately allege that Risk Solutions was “winding-
up,” dissolved, or insolvent. Specifically, Defendants contend that the Complaint fails
to allege “any investigation performed to determine the solvency of any Defendant”
and whether “[McCarron] has researched any specific assets of Risk Solutions at any
point.” (Defendants’ Brief in Support (“Defs.’ Br.”), ECF No. 11, at 8.)

31. 	However, claims for breach of fiduciary duty are not held to a heightened
pleading standard and instead must only comply with North Carolina’s liberal notice
pleading standard. 	See Sivadhanam v. 7 Hills Learning, LLC, 2021 NCBC LEXIS
74, at *21 (N.C. Super. Ct. Sept. 8, 2021) (noting that when considering claims of
breach of fiduciary duty, “the [c]ourt applies a notice pleading standard” (citing Glob.
Textile All., Inc. v. TDI Worldwide, LLC, 2018 NCBC LEXIS 159, at *11 (N.C. Super.
Ct. Nov. 29, 2018)); see also Feltman v. City of Wilson, 238 N.C. App. 246, 252 (2014)
(noting that “[u]nder notice pleading, a statement of a claim is adequate if it gives
sufficient notice of the claim asserted to enable the adverse party to answer and
prepare for trial, to allow for the application of the doctrine of res judicata, and to
show the type of case brought”).
32. 	Our Court of Appeals has held that the following factors may be
considered 	in 	determining 	whether 	circumstances 	evidence 	a 	“winding-up” 	or
dissolution of a corporation in this context:
(1) whether the corporation was insolvent, or nearly insolvent, on a
balance sheet basis; (2) whether the corporation was cash flow insolvent;
(3) whether the corporation was making plans to cease doing business;
(4) whether the corporation was liquidating its assets with a view of going
out of business; and (5) whether the corporation was still prosecuting its
business in good faith, with a reasonable prospect and expectation of
continuing to do so.
Keener Lumber Co., 149 N.C. App. at 31.
33. 	On this issue, the Complaint makes the following factual allegations:
Upon information and belief, Defendant Harold Howell intentionally
created the other Defendant entities during the pendency of the original
lawsuit with the Plaintiff (Union County CVS 001213) with the specific
intent to continue the business of Risk Solutions, Inc., under the new

business entities after a judgment was entered against the Defendant
Risk Solutions, Inc.
Upon information and belief, Defendant Harold Howell and Defendant
Risk Solutions, Inc. transferred physical assets, accounts receivable,
customers, clients, and funds belonging to Risk Solutions, Inc. to
Defendant Howell, to his family members, and to the other Defendant
entities that Defendant Howell created and owned, with the specific
intent to breach his fiduciary duties to creditors by willfully, wantonly,
and maliciously cheating the Plaintiff and evading the payment of
Plaintiff’s claims and judgment against Risk Solutions, Inc.
Risk Solutions, Inc. was administratively dissolved on February 17,
2023.
. . .
Defendant Harold Howell, as President and a director of Defendant Risk
Solutions, Inc., took advantage of the fiduciary relationship he owed to
the Plaintiff, as a creditor of Risk Solutions, Inc., which was either
insolvent or was in the process of winding up its affairs.
. . .
Specifically, the intent by Defendant Harold Howell and Defendant Risk
Solutions, Inc. was to transfer assets and to create legal entities for the
purpose of carrying on Defendant Risk Solutions, Inc’s. [sic] business
under the names of the new separate legal entities.
. . .
The Defendant debtor, Risk Solutions, Inc. either was insolvent prior to
the transfers or became insolvent as a result of the transfer made to
Defendant Harold Howell, Defendant US Captive Group, LLC, and
Defendant Spartan Corporate Advisors, Inc.
(Compl. ¶¶ 19–21, 28, 31, 38.)
34. 	These allegations—when read in the light most favorable to McCarron—
sufficiently allege Risk Solutions’ insolvency.
35. 	Moreover, the Complaint specifically alleges that Risk Solutions was
administratively dissolved by the Secretary of State. (Compl. ¶ 21.)

36. 	N.C.G.S. § 55-14-21(c) provides that any corporation administratively
dissolved by the North Carolina Secretary of State must comply with N.C.G.S. § 55-
14-05, which states that a dissolved corporation “may not carry on any business
except that appropriate to wind up and liquidate its business and affairs[.]” N.C.G.S.
§ 55-14-05.
37. 	To 	be 	sure, 	the 	Complaint 	is 	bare-bones 	in 	certain 	respects.
Nevertheless, for purposes of notice pleading, the Court is satisfied that these factual
allegations are sufficient to allege that Howell owed a fiduciary duty to McCarron as
a judgment creditor of Risk Solutions based on the dissolution and insolvency of the
company for which Howell served as a director, that Howell breached that duty by
transferring the assets of Risk Solutions to other entities, and that McCarron suffered
a resulting injury.
38. 	Finally, Defendants argue that McCarron lacks standing to assert this
claim because he has failed to allege that he “was treated differently than any other
creditor of Risk Solutions in the same class as he is.” 	(Defs.’ Br., at 8.) 	See, e.g.,
Associated Hardwoods, Inc. v. Lail, 2018 NCBC LEXIS 81, at *10–23 (N.C. Super. Ct.
Aug. 6, 2018) (holding that a creditor lacked standing to bring a breach of fiduciary
duty claim due to the absence of any “allegation[s] that it was treated any differently
than other unsecured creditors of [defendant]”).
39. 	However, such standing exists where, as here, the plaintiff alleges that
the claim at issue is based on an injury personal to him as an individual creditor. See
Phillips & Jordan v. Bostic, 2012 NCBC LEXIS 36, at *18–19 (N.C. Super. Ct. June
1, 2012) (holding that plaintiff possessed standing to bring claim alleging that

defendants “breached a [fiduciary] duty that they owed directly to the creditor rather
than an injury that is common to all creditors”).
40. 	Therefore, Defendants’ Motion to Dismiss is DENIED as to McCarron’s
breach of fiduciary duty claim against Howell.
41. 	The Court agrees with Defendants, however, that McCarron has failed
to state a valid claim for breach of fiduciary duty against Risk Solutions itself.
Neither McCarron’s brief nor the Court’s own research have disclosed any case in
which a North Carolina court has held that a corporation owes a fiduciary duty to its
creditors.2
42. 	Accordingly, 	Defendants’ 	Motion 	to 	Dismiss 	is 	GRANTED 	as 	to
McCarron’s breach of fiduciary duty claim against Risk Solutions, and that claim is
DISMISSED with prejudice.
B. 	Constructive Fraud
43. 	Our Supreme Court has recognized that the elements of a constructive
fraud claim largely overlap with the elements of a claim for breach of fiduciary duty.
See Chisum v. Campagna, 376 N.C. 680, 706–07 (2021). “[A] cause of action for
constructive fraud [requires] (1) a relationship of trust and confidence, (2) that the
defendant took advantage of that position of trust in order to benefit himself, and (3)
that plaintiff was, as a result, injured.” White v. Consol. Planning Inc., 166 N.C. App.
283, 294 (2004) (citation omitted). “The primary difference between pleading a claim
2 McCarron’s counsel conceded the absence of such case law at the 5 November hearing.

for constructive fraud and one for breach of fiduciary duty is the constructive fraud
requirement that the defendant benefit himself.” Id.
44. 	The Supreme Court has also made clear that a claim of constructive
fraud need not comply with the heightened pleading requirements of Rule 9(b) of the
North Carolina Rules of Civil Procedure. See Terry v. Terry, 302 N.C. 77, 85 (1981).
Rather, the pleading must simply allege “facts and circumstances (1) which created
the relation of trust and confidence, and (2) which led up to and surrounded the
consummation of the transaction in which [the defendant] is alleged to have taken
advantage of his position of trust to the hurt of [the plaintiff].” Id. at 85 (cleaned up).
45. 	As 	noted 	above, 	the 	Complaint 	makes 	numerous 	allegations 	that
through the transfers of Risk Solutions’ assets, Howell sought to confer a benefit upon
himself at the expense of McCarron. Such allegations include the following:
Upon information and belief, Defendant Harold Howell and Defendant
Risk Solutions, Inc. transferred physical assets, accounts receivable,
customers, clients, and funds belonging to Risk Solutions, Inc. to
Defendant Howell, to his family members, and to the other Defendant
entities that Defendant Howell created and owned, with the specific
intent to breach his fiduciary duties to creditors by willfully, wantonly,
and maliciously cheating the Plaintiff and evading the payment of
Plaintiff’s claims and judgment against Risk Solutions, Inc.
. . .
Defendant Harold Howell sought to benefit himself by breaching his
fiduciary duty and by transferring the assets of Risk Solutions, Inc. to
himself, 	to 	his 	family, 	and 	the 	Defendant 	corporations 	Spartan
Corporate Advisors, Inc., and US Captive Group, LLC, each of which he
owned or held controlling interest therein.
. . .
The purpose of Defendant Harold Howell’s actions in setting up his
alternate 	corporate 	entities 	and 	in 	transferring 	corporate 	assets,
corporate 	accounts 	receivable, 	corporate 	funds, 	corporate 	personal

property, corporate clients and customers, both prior to and following
the entry of the judgment against Defendant Risk Solutions, Inc., to
these new corporate entities was to benefit himself.
(Compl. ¶¶ 20, 24, 30.)
46. 	Because 	McCarron 	has 	made 	sufficient 	allegations 	that 	Howell’s
breach of fiduciary duty was undertaken for his own personal benefit, McCarron has
sufficiently pled a claim for constructive fraud.
47. 	Therefore, 	the 	Motion 	to 	Dismiss 	is 	DENIED 	as 	to 	McCarron’s
constructive fraud claim against Howell.
48. 	However, for the same reason that McCarron’s breach of fiduciary duty
claim against Risk Solutions fails as a matter of law, so too is his constructive fraud
claim against the company legally deficient.
49. 	Therefore, the Motion to Dismiss is GRANTED as to McCarron’s
constructive fraud claim against Risk Solutions, and that claim is DISMISSED with
prejudice.
C. 	Fraudulent Transfer
50. 	Pursuant to the North Carolina Uniform Voidable Transactions Act:
A transfer made or obligation incurred by a debtor is voidable as to a
creditor 	whose 	claim 	arose 	before 	the 	transfer 	was 	made 	or 	the
obligation was incurred if the debtor made the transfer or incurred the
obligation without receiving a reasonably equivalent value in exchange
for the transfer or obligation, and the debtor was insolvent at that time
or the debtor became insolvent as a result of the transfer or obligation.
N.C. Gen. Stat. § 39-23.5(a).
51. 	As this Court has noted:
The [Uniform Voidable Transactions Act] defines a creditor as “[a]
person that has a claim[;]” a debtor as “[a] person that is liable on a

claim[;]” and a claim as “a right to payment, whether or not the right is
reduced to judgment, . . . contingent, disputed, [or] legal.” 	N.C.G.S. §
39-23.1(3)–(4), (6). Furthermore, the official comment to [N.C.]G.S. § 39-
23.1 states that “the holder of an unliquidated tort claim or a contingent
claim may be a creditor protected by this act.” N.C.G.S. § 39-23.1, cmt.
4 (2014).
Glob. Textile All., Inc., 2018 NCBC LEXIS 159, at *35–36.
52. 	As our Court of Appeals has noted, “[a]n essential element of a transfer
in fraud of creditors claim . . . is that the transfer was made without the debtor
receiving reasonably equivalent value.” General Fid. Ins. Co. v. WFT, Inc., 269 N.C.
App. 181, 188 (2020) (cleaned up).
53. 	Defendants assert that McCarron’s claim for fraudulent transfer fails
because the allegations in the Complaint as to this claim are impermissibly vague.
54. 	Unlike McCarron’s claims for breach of fiduciary duty and constructive
fraud, “[c]laims for fraudulent [transfer] must . . . comply with the heightened
pleading standard set by Rule 9(b)[,]” requiring the plaintiff to plead the claim with
particularity. BIOMILQ, Inc. v. Guiliano, 2024 NCBC LEXIS 58, at *48 (N.C. Super.
Ct. Apr. 19, 2024) (cleaned up); see also Azure Dolphin, LLC v. Barton, 2017 NCBC
LEXIS 90, at *26 (N.C. Super. Ct. Oct. 2, 2017) (dismissing a claim for fraudulent
transfer where the plaintiff failed to “specifically identify the property transferred,
the timing of the transfer, and the consideration paid for the property”); Bivins v.
Pacheco, 2023 NCBC LEXIS 76, at *16–17 n.7 (N.C. Super. Ct. June 2, 2023)
(dismissing a claim for fraudulent transfer for failure to allege the dates of the
purportedly fraudulent transactions).

55. 	Here, McCarron’s allegations in support of his fraudulent transfer claim
are insufficient to comply with Rule 9(b) based on their lack of specificity. 	The
Complaint does not identify (1) what “physical assets, accounts receivable, customers,
clients, and funds” were transferred; (2) which Defendant was the recipient of each
transfer; (3) when each transfer was made; and (4) what consideration, if any, was
received by Risk Solutions in exchange for each transfer.
56. 	Therefore, 	Defendants’ 	Motion 	to 	Dismiss 	is 	GRANTED 	as 	to
McCarron’s fraudulent transfer claim against all Defendants, and that claim is
DISMISSED without prejudice.3
D. 	Facilitation of Fraud and Civil Conspiracy
57. 	McCarron’s fifth claim for relief in the Complaint purports to be based
on theories of facilitation of fraud and civil conspiracy.
58. 	“The law permits one defrauded to recover from anyone who facilitated
the fraud by agreeing for it to be accomplished.” Brown v. Secor, 2020 NCBC LEXIS
134, at *26 (N.C. Super. Ct. Nov. 13, 2020). “A claim based upon facilitation of fraud
extends liability to those persons where (a) they operate under an agreement to do an
unlawful act, or to do a lawful act in an unlawful way; (b) wrongful acts were in fact
done in furtherance of that agreement; and (c) that resulted in injury to plaintiff.”
Estate of Capps v. Blondeau, 2015 NCBC LEXIS 41, at *41–42 (N.C. Super. Ct. Mar.
5, 2015). 	Thus, on a meritorious facilitation of fraud claim, “all of the conspirators
are liable, jointly and severally, for the act of any one of them done in furtherance of
3 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court[.]” First Fed. Bank v. Alridge, 230 N.C. App. 187, 191 (2013).

the agreement.” Bucci v. Burns, 2018 NCBC LEXIS 37, at *14 (N.C. Super. Ct. Apr.
25, 2018) (cleaned up).
59. 	A claim for facilitation of fraud must “be based on the conspiring
parties’ 	agreement 	to 	carry 	out 	alleged misconduct 	that 	supports 	a 	separate,
underlying claim.” Loray Mill Devs., LLC v. Camden Loray Mill Phase 1, LLC, 2023
NCBC LEXIS 21, at *52 (N.C. Super. Ct. Feb. 7, 2023).
60. 	With regard to civil conspiracy, this Court has previously stated:
Civil conspiracy is not an independent cause of action in North Carolina.
Rather, liability for civil conspiracy must be alleged in conjunction with
an underlying claim for unlawful conduct. Toomer v. Garrett, 155 N.C.
App. 462, 483 (2002). 	To state a claim for civil conspiracy, a plaintiff
must allege: “(1) an agreement between two or more individuals; (2) to
do an unlawful act or to do a lawful act in an unlawful way; (3) resulting
in injury to plaintiff inflicted by one or more of the conspirators; and (4)
pursuant to a common scheme.” 	Piraino Bros., LLC v. Atlantic Fin.
Grp., 	Inc., 	211 	N.C. App. 	343, 	350 	(2011) 	(internal 	citations 	and
quotations omitted).
Glob. Textile All., Inc., 2018 NCBC LEXIS 159, at *35–36.
61. 	Where the complaint alleges that the defendants’ agreement was for the
purpose of defrauding the plaintiff, “a claim for civil conspiracy to commit fraud and
a claim for facilitating fraud are essentially the same claim.” 	TaiDoc Tech Corp. v.
OK Biotech Co., 2016 NCBC LEXIS 26, at *30 (N.C. Sup. Ct. Mar. 28, 2016).
62. 	The Court finds that dismissal of this claim is proper here for two
reasons.
63. 	First, the alleged conspiracy is that the Defendants conspired with each
other to “defraud the Plaintiff by transferring assets to avoid Plaintiff’s collection on

a judgment.” 	(Compl. ¶ 48; see also Compl. ¶¶ 49–51.) 	Therefore, the underlying
claim is the fraudulent transfer claim.
64. 	However, because the Court has determined that this underlying claim
is 	insufficiently 	pled, 	resulting 	in 	its 	dismissal, 	the 	facilitation 	of 	fraud/civil
conspiracy claim must also be dismissed. 	See Lau v. Constable, 2017 NCBC LEXIS
10, at *20 (N.C. Super. Ct. Feb. 7, 2017) (noting that “if the underlying claim fails,
the conspiracy claim must also fail” (citation omitted)); see also Worley v. Moore, 2018
NCBC LEXIS 114, at *17–18 (N.C. Super. Ct. Nov. 2, 2018) (holding that because
“[t]he [c]ourt has dismissed the claims for fraud against [defendants] in this order . .
. the claim for conspiracy to defraud also must fail” (citation omitted)).
65. 	Second, the Complaint alleges that Howell exercised “sole control,”
(Compl. ¶ 62), and “complete[] dominat[ion],” (Compl. ¶ 58), over Spartan, US
Captive, and Risk Solutions—such that they existed as his alter ego without “a
separate mind, will, or existence of their own,” (Compl. ¶ 60).
66. 	As a result, because McCarron has asserted that these entities had no
actual existence separate and apart from Howell himself, the resulting implication is
that Howell sought to conspire with himself.
67. 	It would defy logic to hold that a natural person can conspire with
himself. 	See, e.g., Templeton v. CB Med., LLC, No. 1:19-CV-01292, 2020 U.S. Dist.
LEXIS 221160, at *14–16 (W.D. La. Nov. 24, 2020) (noting that “[i]t is well-settled
that a natural person cannot conspire with himself” and holding that since the
individual defendant “is the sole natural person alleged to have acted on behalf of

[two corporate defendants][,]” he “could not have conspired with himself to defraud
[the plaintiff]” (citations omitted)).
68. 	Therefore, 	Defendants’ 	Motion 	to 	Dismiss 	is 	GRANTED 	as 	to
McCarron’s facilitation of fraud/civil conspiracy claim against all Defendants, and
that claim is DISMISSED without prejudice.
E. 	UDTP
69. 	“To prevail on a claim of unfair and deceptive trade practices a plaintiff
must show (1) an unfair or deceptive act or practice, or an unfair method of
competition, (2) in or affecting commerce, (3) which proximately caused actual injury
to the plaintiff or to his business.” 	Spartan Leasing Inc. v. Pollard, 101 N.C. App.
450, 460–61 (1991).
70. 	With regard to the UDTP claim against Howell, “North Carolina case
law 	has 	held 	that 	conduct 	which 	constitutes 	a 	breach 	of 	fiduciary 	duty 	and
constructive fraud is sufficient to support a UDTP claim.” Compton v. Kirby, 157 N.C.
App. 1, 20 (2003) (citing Spence v. Spaulding & Perkins, Ltd., 82 N.C. App. 665, 668
(1986)).
71. 	Thus, because the Court has concluded that the Complaint sufficiently
states claims for breach of fiduciary duty and constructive fraud against Howell,
these same allegations are sufficient to sustain an action against him for UDTP.
72. 	Defendants 	nevertheless 	argue 	that 	because 	only 	one 	person—
McCarron—could have been harmed by the alleged transfers, they did not “affect the
public, the marketplace, or commerce,” and, therefore, do not satisfy the second
element of a UDTP claim. (Defs.’ Br., at 11–13.)

73. 	For the purposes of a UDTP claim, commerce generally “includes all
business activities, however denominated[.]”4 N.C.G.S. § 75-1.1(b). 	North Carolina
courts have broadly defined “business activity” as the “regular, day-to-day activities,
or affairs, such as the purchase and sale of goods, or whatever other activities the
business regularly engages in and for which it is organized.” 	HAJMM Co. v. House
of Raeford Farms, Inc., 328 N.C. 578, 594 (1991).
74. 	Despite the sweeping definition of commerce supplied in the UDTPA,
our Supreme Court has stated that “the Act is not intended to apply to all wrongs in
a business setting.” 	HAJMM Co., 328 N.C. at 592. 	“The Act is not focused on the
internal conduct of individuals within a single market participant, that is, within a
single business.” White v. Thompson, 364 N.C. 47, 53 (2010).
75. 	However, 	our 	Court 	of 	Appeals 	has 	rejected, 	under 	similar
circumstances, an argument virtually identical to the one being made by Defendants
here, stating the following: “[Defendant] transferred all of WFT’s assets to other
companies, which either quickly failed or never conducted any business; the asset
transfer prevented Plaintiff from enforcing its judgment against WFT; and all of this,
in turn, had a harmful effect on commerce.” General Fid. Ins. Co., 269 N.C. App. at
192; see also Ehmann v. Medflow, Inc., 2022 NCBC LEXIS 114, at *36–37 (N.C.
Super. Ct. Sept. 12, 2022) (finding that “a scheme of fraudulent transfer between
multiple companies . . . each [] owned by [the defendant]” was “in or affecting
commerce”).
4 Although not relevant here, professional services rendered by a member of a learned
profession are excluded from the definition of “commerce.” N.C.G.S. § 75-1.1(b).

76. 	Therefore, Howell’s Motion to Dismiss the UDTP claim against him is
DENIED.
77. 	However, with regard to the UDTP claims against Spartan, US Captive,
and Risk Solutions, dismissal of those claims is proper. The Court has now dismissed
all claims against those entities such that there are no predicate claims left against
them that could form the basis for a UDTP claim (as is the case regarding Howell).
Moreover, the Complaint does not otherwise allege any specific acts by those
remaining Defendants that would independently give rise to a UDTP claim.
78. 	For this reason, the Motion to Dismiss is GRANTED as to McCarron’s
UDTP claims against Spartan, US Captive, and Risk Solutions, and those claims are
DISMISSED without prejudice.
F. 	Alter Ego
79. 	Finally, in the Complaint, McCarron alleges that Howell was the alter
ego of Risk Solutions, Spartan, and US Captive such that the corporate form of those
entities should therefore be disregarded. As a result, McCarron asserts, he should be
permitted to 	“pierce 	the 	corporate 	veil” as 	to these 	entities 	and hold Howell
individually liable for their wrongful acts.
80. 	“The doctrine of piercing the corporate veil is not a theory of liability.
Rather, it provides an avenue to pursue legal claims against corporate officers or
directors who would otherwise be shielded by the corporate form.” Green v. Freeman,
367 N.C. 136, 147 (2013).
81. 	However, because the Court has now dismissed all claims asserted
against Spartan, US Captive, and Risk Solutions, the Court need not consider

whether McCarron has sufficiently pled facts to allow him to pierce the corporate veil.
See, e.g., Gen. Fid. Ins. Co., 269 N.C. App. at 188–90 (holding that where all claims
against the corporate defendants have been dismissed, “[the court] need not continue
[its] analysis on piercing the corporate veil”).
CONCLUSION
THEREFORE, IT IS ORDERED as follows:
1. 	Defendant Risk Solutions’ Motion to Dismiss is GRANTED as to
Plaintiff’s claims for breach of fiduciary duty and constructive fraud, and
those claims are DISMISSED with prejudice.
2. 	Defendants Spartan, US Captive, and Risk Solutions’ Motion to Dismiss
is GRANTED as to Plaintiff’s claim for UDTP, and those claims are
DISMISSED without prejudice.
3. 	The Motion to Dismiss of all Defendants is GRANTED as to Plaintiff’s
claims for fraudulent transfer and civil conspiracy/facilitation of fraud,
and those claims are DISMISSED without prejudice.
4. 	In all other respects, Defendants’ Motion to Dismiss is DENIED.
SO ORDERED, this the 19th day of November, 2024.
/s/ Mark A. Davis
Mark A. Davis
Special Superior Court Judge
for Complex Business Cases