WORLEY v. ORMOND, 2024 NCBC 40

STATE OF NORTH CAROLINA
JOHNSTON COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23CV005586-500
SHERRY WORLEY and GINGER
MASSENGILL, individually, and as
members of the committees of the
respective Board of Directors for
ORMOND OIL & GAS COMPANY,
INC., and ORMOND’S SALES AND
SERVICE, INCORPORATED,
Plaintiffs,
v.
WILLIAM E. ORMOND, JR.,
individually, and in his capacity as
an Officer, and Director of ORMOND
OIL & GAS COMPANY, INC., and
ORMOND’S SALES AND SERVICE,
INCORPORATED; ORMOND OIL &
GAS COMPANY, INC.; ORMOND’S
SALES AND SERVICE,
INCORPORATED; ORMOCO, LLC;
R.E.S. INVESTORS, LLC; ORMOND
ENERGY INVESTORS, LLC; and
OFB VENTURES LLC,
Defendants.
ORDER AND OPINION ON
PLAINTIFFS’ MOTION FOR
ISSUANCE OF A WRIT OF
MANDAMUS,
OR IN THE ALTERNATIVE,
FOR PARTIAL SUMMARY
JUDGMENT ON CLAIM FOR
RECOVERY OF DECLARED
DIVIDENDS
1. 	THIS MATTER is before the Court on the 20 December 2023 filing of
Plaintiffs’ Motion for Issuance of a Writ of Mandamus, or in the Alternative, for Partial
Summary Judgment on Claim for Recovery of Declared Dividends (the “Motion”).
(ECF No. 30 [“Mot.”].) 	Pursuant to N.C.G.S. §§ 55-6-40, 55-3-04(b), and in the
alternative, Rule 56 of the North Carolina Rules of Civil Procedure (the “Rule(s)”),
Plaintiffs request issuance of a writ of mandamus, or alternatively, affirmative
Worley v. Ormond, 2024 NCBC 40.

summary judgment on their claim for the recovery of declared dividends against
Defendant Ormond Oil & Gas Company, Inc.1 (See Mot.)
2. 	For the reasons set forth herein, the Court GRANTS in part and DENIES
in part the Motion.
James, McElroy & Diehl, P.A., by Fred B. Monroe and Haley Lohr, for
Plaintiffs Sherry Worley and Ginger Massengill.
Goldberg Segalla, by David L. Brown, for Defendants Ormond Oil & Gas
Company, Inc. and Ormond’s Sales and Service, Inc.
The Armstrong Law 	Firm, P.A., by L. Lamar Armstrong, Jr., for
Defendant William E. Ormond, Jr.
Robinson, Judge.
I. 	INTRODUCTION
3. 	This action arises out of a dispute among three siblings, each of whom are
shareholders of Ormond Oil & Gas Company, Inc. and Ormond’s Sales and Service,
Incorporated. Plaintiffs, through the filing of this lawsuit, contend that their brother,
Defendant William E. Ormond, Jr., exercised, and continues to exercise, complete
control over the two companies for his own benefit and without regard to Plaintiffs’
interests.
4. 	At issue in the Motion is a very limited dispute: whether Plaintiffs are
entitled, as shareholders of Ormond Oil & Gas Company, Inc., to recover certain
previously declared dividends.
1 On 10 May 2024, after obtaining leave from the Court, Plaintiffs filed their First Amended
Verified Complaint. (ECF No. 115 [“Am. Compl.”].) Plaintiffs’ first cause of action for failure
to pay declared dividends against Ormond Oil & Gas Company, Inc. remains a claim at issue
in this case. (Am. Compl. ¶¶ 128–34.)

II. 	FACTUAL AND PROCEDURAL BACKGROUND
5. 	The Court does not make findings of fact when ruling on a motion for
summary judgment. “[T]o provide context for its ruling, the Court may state either
those facts that it believes are not in material dispute or those facts on which a
material dispute forecloses summary adjudication.” Ehmann v. Medflow, Inc., 2017
NCBC LEXIS 88, at *6 (N.C. Super. Ct. Sept. 26, 2017); see also Hyde Ins. Agency,
Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142 (1975) (encouraging the trial court
to articulate a summary of the relevant evidence of record to provide context for the
claims and motion(s)). Furthermore, the Court sets forth herein only those portions
of the procedural history relevant to its determination of the Motion.
6. 	Plaintiffs Sherry Worley (“Worley”) and Ginger Massengill (“Massengill”;
with Worley, “Plaintiffs”) are residents of Princeton, North Carolina. 	(Verified
Compl. ¶¶ 1–2, ECF No. 3 [“Compl.”].)2
7. 	Defendant William E. Ormond, Jr. (“Ormond”) is a resident of Princeton,
North Carolina. 	(Compl. ¶ 5; William E. Ormond, Jr. Answer ¶ 5, ECF No. 24
[“Ormond Answer”].)
2 For purposes of resolving the Motion, the Court treats the Verified Complaint as an
affidavit. See Page v. Sloan, 281 N.C. 697, 705 (1972); Bauer v. Douglas Aquatics, Inc., 207
N.C. App. 65, 69 (2010). Notwithstanding this determination, the Verified Complaint, as any
affidavit, may only be properly considered if it demonstrates by its allegations and
representations that the affiant has firsthand knowledge of the facts or circumstances alleged
and that the representations therein are properly considered by the Court as admissible
evidence. See Page, 281 N.C. at 705.
Furthermore, the Court cites herein to the allegations in the Verified Complaint, rather than
the First Amended Verified Complaint, as the briefing on the Motion occurred prior to the
filing of the latter pleading.

8. 	Defendants Ormond Oil & Gas Company, Inc. (“OOG”) and Ormond’s Sales
and Service, Incorporated (“OSS”; with OOG, the “Ormond Companies”) are North
Carolina corporations with their principal place of business in Princeton, North
Carolina. (Compl. ¶¶ 3–4; Answer Defs. OOG & OSS ¶¶ 3–4, ECF No. 22 [“Ormond
Cos. Answer”].)
9. 	It is undisputed that: (1) Plaintiffs and Ormond are siblings who inherited
their respective ownership interests in the Ormond Companies from their parents;
(2) Ormond owns sixty-two percent (62%) of the shares of OOG and fifty-six percent
(56%) of the shares of OSS; and (3) Plaintiffs each own approximately nineteen
percent (19%) of the shares of OOG and twenty-two percent (22%) of the shares of
OSS. (Compl. ¶¶ 19–20; Ormond Answer ¶¶ 19–20; Ormond Cos. Answer ¶¶ 19–20.)
Together, the three siblings own all outstanding shares in the Ormond Companies.
(Ormond Cos. Answer ¶ 7 (“[A]dmitted that Plaintiff Worley, Plaintiff Massengill and
Defendant Ormond own all shares of stock in both companies, and that Defendant
Ormond owes [sic] the majority of shares in each company.”).)
10. 	It is also undisputed that Ormond is the President and Chief Executive
Officer of both Ormond Companies, (Aff. William E. Ormond Jr. ¶ 2, ECF No. 19
[“Ormond Aff.”]; Ormond Cos. Answer ¶ 7), and that Plaintiffs and Ormond were
members of OOG’s Board of Directors in 2023, (Compl. ¶ 42; Ormond Cos. Answer
¶ 42; see also 8 Nov. 2023 Hr’g Tr. 31:3–20, ECF No. 29.5 [“8 Nov. Hr’g Tr.”]).

11. 	On 20 September 2023, Plaintiffs noticed a special meeting of the OOG
Board of Directors to be held on 25 September 2023. 	(Compl. Ex. A, ECF No. 3.2.)3
After communicating with Ormond about his claimed inability to attend the meeting
as 	scheduled, 	(Ormond 	Aff. 	¶¶ 59–61), 	Plaintiffs 	rescheduled 	the 	meeting 	to
27 September 2023, issuing a notice of special meeting that contained an offer for
Ormond to participate in the meeting by phone if he could not attend in person, (see
Compl. Ex. C).4 	The notice of special meeting was signed by Plaintiffs as directors
and officers of OOG. (See Compl. Exs. A, C.) It appears that the special meeting was
properly noticed in accordance with Article II, Section 3 of OOG’s Bylaws. 	(Aff.
Ginger Massengill Ex. 5, ECF No. 10.3 [“OOG Bylaws”].)
12. 	On 27 September 2023, Plaintiffs attended the special meeting of OOG’s
Board of Directors (the “27 September Board Meeting”). (Compl. Ex. F.) Ormond did
not attend, by phone or otherwise. (Compl. Ex. F.) The meeting began at 3:00 p.m.
and the meeting minutes demonstrate that Plaintiffs, as directors of OOG, resolved,
in relevant part, that: (1) OOG “shall, until further resolution of the Directors, pay a
dividend to the Shareholders of the Corporation, in the amount of $850,000.00”;
(2) “the record date of the dividends to be paid as described above is September 27,
2023”; and (3) “the payable date of the dividends to be paid as described above is to
be September 29, 2023.” (Compl. Ex. F.)
3 The Exhibits to the Verified Complaint were filed in one document rather than separately
filed. (See ECF No. 3.2.) Therefore, for ease of reference, the Court does not restate the ECF
No. at each citation, but rather cites to these exhibits as follows: (Compl. Ex(s). [ ] at [ ]).
4 Ormond did not object in writing to either meeting or to the notices of meeting.

13. 	The evidence demonstrates that the $850,000.00 dividend declared was not
paid on or before 29 September 2023. 	(See Ormond Answer ¶ 76; Third Aff. Ginger
Massengill ¶ 8, Ex. 10 at 6, ECF Nos. 29.2, 102.2 [“3d Massengill Aff.”] (attempting
to revoke the dividend at issue).) The record also demonstrates that OOG was solvent
both at the time the dividend was declared and at the initiation of this action. (Aff.
Sherry Worley ¶¶ 3–5, ECF No. 58.2; Compl. Ex. I at 2; CRI Report 23, ECF No. 90.1
(suggesting 	that at the 	end of 	2022, OOG 	had $4,607,345.00 in 	total assets,
$422,125.00 in total liabilities, including long term liabilities, and a net income of
$1,472,446.00).)
14. 	Plaintiffs initiated this action on 12 October 2023 with the filing of the
Verified Complaint. (See Compl.)
15. 	On 24 October 2023, Ormond provided Plaintiffs with notice of special
shareholders’ meetings for the Ormond Companies to be held on 6 November 2023.
(3d Massengill Aff. ¶ 2, Exs. 1–2.) 	Ormond similarly provided notices of directors’
meetings for the Ormond Companies to follow the shareholders’ meetings. 	(3d
Massengill Aff. Exs. 3–4.)
16. 	On 	6 	November 	2023, 	Plaintiffs 	attended 	the 	special 	shareholders’
meetings of the Ormond Companies, presenting written objections, but Plaintiffs did
not vote on the issues at hand. 	(3d Massengill Aff. ¶¶ 3–4, Exs. 5–6 (providing
Plaintiffs’ written objections presented at the meetings).) 	During the OOG special
shareholders’ meeting, Ormond voted alone to replace Massengill with Ronald
Waters as a director. (3d Massengill Aff. ¶ 4, Ex. 7 at 7–8.) The Court determined in

a prior Order that Ormond’s notice of meeting was “defective because it did not specify
which 	director was 	proposed to 	be 	removed[,]” 	meaning 	that 	“the 	removal 	of
Massengill as a director of OOG was ineffective, as was the election of Ron[ald]
Waters[.]” (Order on Pls.’ Mot. Inj. Relief 9–10, ECF No. 106 [“30 Apr. Order”].)
17. 	On 17 November 2023, Ormond, through counsel, noticed a special meeting
of the OOG Board of Directors to be held on 22 November 2023. (3d Massengill Aff.
¶ 7, Ex. 9 (providing Ormond’s counsel’s email to Plaintiffs’ counsel, attaching the
notice of special meeting of OOG’s Board of Directors).) The notice provided that the
purpose of the special meeting was “to determine whether prior resolutions and
actions by OOG Directors should be invalidated, reversed and rescinded, including
. . . the $850,000 dividend[.]” (3d Massengill Aff. Ex. 9 at 3.)
18. 	At the 22 November 2023 meeting, Plaintiffs objected in writing, (see ECF
No. 94.2 (Plaintiffs’ written objections)), and Worley objected orally, to the allegedly
improper motion on numerous grounds, including that the OOG Board of Directors
was not properly constituted, and to any attempt to rescind the dividend, (3d
Massengill Aff. ¶ 8, Ex. 10 at 3, 6; see ECF No. 94.2). 	Despite Plaintiffs’ objections,
Ormond moved to “reject and reverse and invalidate and rescind all resolutions and
other actions taken by Ormond Oil Board from September 23rd through the present,
including . . . the $850,000 dividends[.]” 	(3d Massengill Aff. Ex. 10 at 3.) 	Ronald
Waters seconded the motion. (3d Massengill Aff. Ex. 10 at 3.)
19. 	While Massengill was not permitted to participate due to her purported
removal as a director, Worley engaged in some discussion with Ormond regarding his

motion. (See 3d Massengill Aff. Ex. 10 at 3–6.) Ultimately, the record demonstrates
that Worley voted against Ormond’s motion to rescind the dividend previously
approved by OOG’s Board of Directors on 27 September 2023. 	(3d Massengill Aff.
Ex. 10 at 6.) 	Ormond and Ronald Waters voted in favor of rescinding or otherwise
reversing the actions approved at the 27 September Board Meeting. (3d Massengill
Aff. Ex. 10 at 6.)
20. 	Now, through the filing of the Motion, Plaintiffs seek (1) an order from the
Court compelling OOG’s Board of Directors to make the $850,000.00 dividend
payment, or alternatively (2) summary judgment in their favor on their first claim for
relief for OOG’s failure to pay declared dividends (“Count One”). 	(See Mot.; Compl.
¶¶ 74–80; Am. Compl. ¶¶ 128–34.)5
21. 	Following 	full 	briefing, 	the 	Court 	held 	a 	hearing 	on 	the 	Motion 	on
4 April 2024 (the “Hearing”), (see ECF Nos. 73, 86), at which all parties were present
and represented through counsel. The Motion is now ripe for resolution.
III. 	LEGAL STANDARD
22. 	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.G.S. § 1A-1, Rule 56(c). “A ‘genuine issue’ is
5 As discussed above, following the filing of the Motion, Plaintiffs were permitted to file the
First Amended Verified Complaint. (See Order, ECF No. 107; Am. Compl.) The allegations
in the First Amended Verified Complaint at Count One mirror those in the Verified
Complaint at Count One. 	(Compare Compl. ¶¶ 74–80, with Am. Compl. ¶¶ 128–34.) 	The
filing of the First Amended Verified Complaint therefore did not render the Motion moot.

one that can be maintained by substantial evidence.” Dobson v. Harris, 352 N.C. 77,
83 (2000) (citation omitted). 	“ ‘Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion’ and means ‘more
than a scintilla or a permissible inference.’ ” Head v. Gould Killian CPA Grp., P.A.,
371 N.C. 2, 8 (2018) (quoting Ussery v. Branch Banking & Tr. Co., 368 N.C. 325, 335
(2015)).
23. 	The moving party bears the burden of showing that there is no genuine
issue of material fact, and that the movant is entitled to judgment as a matter of law.
Hensley v. Nat’l Freight Transp., Inc., 193 N.C. App. 561, 563 (2008). 	The movant
may make the required showing by proving that “an essential element of the opposing
party’s claim does not exist, cannot be proven at trial, or would be barred by an
affirmative defense, or by showing through discovery that the opposing party cannot
produce evidence to support an essential element of her claim.” 	Dobson, 352 N.C.
at 83 (citations omitted).
24. 	“Once the party seeking summary judgment makes the required showing,
the 	burden 	shifts 	to 	the 	nonmoving 	party 	to 	produce 	a 	forecast 	of 	evidence
demonstrating specific facts, as opposed to allegations, showing that he can at least
establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784−85
(2000) (citation omitted). 	The Court must view the evidence in the light most
favorable to the nonmovant. Dobson, 352 N.C. at 83 (citation omitted). However, the
nonmovant
may not rest upon the mere allegations or denials of [its] pleading, but
[its] response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for trial. If
[the 	nonmovant] 	does 	not 	so 	respond, 	summary 	judgment, 	if
appropriate, shall be entered against [the nonmovant].
N.C.G.S. § 1A-1, Rule 56(e).
25. 	“For affirmative summary judgment on a party’s own claim, the burden is
heightened.” Futures Grp. v. Brosnan, 2023 NCBC LEXIS 7, at **4 (N.C. Super. Ct.
Jan. 19, 2023); see Brooks v. Mount Airy Rainbow Farms Ctr., Inc., 48 N.C. App. 726,
728 (1980). 	The movant “must show that there are no genuine issues of fact, that
there are no gaps in his proof, that no inferences inconsistent with his recovery arise
from the evidence, and that there is no standard that must be applied to the facts by
the jury.” Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 721 (1985); accord Kidd
v. Early, 289 N.C. 343, 370 (1976). 	Consequently, “rarely is it proper to enter
summary judgment in favor of the party having the burden of proof.” 	Blackwell v.
Massey, 69 N.C. App. 240, 243 (1984).
IV. 	ANALYSIS
A. 	Motion for Writ of Mandamus
26. 	Plaintiffs contend that the Court may issue an order compelling OOG to
perform a specific duty imposed by law and that the Court should do so in this
situation to require OOG to pay Plaintiffs their share of the $850,000.00 dividend
declared at the 27 September Board Meeting. (Pls.’ Br. Supp. Mot. 3–4, ECF No. 31
[“Br. Supp.”].)
27. 	A writ of mandamus is a court order “ ‘to a board, corporation, inferior court,
officer or person commanding the performance of a specified official duty imposed by

law.’ ” 	Morningstar Marinas/Eaton Ferry, LLC v. Warren Cty., 368 N.C. 360, 364
(2015) (quoting Sutton v. Figgatt, 280 N.C. 89, 93 (1971)). The writ is appropriately
issued when:
(1) the [petitioner] has a clear legal right to the act requested; (2) the
respondent 	has 	a 	legal 	duty 	to 	perform 	the 	act 	requested;
(3) performance of the act at issue is ministerial in nature and does not
involve the exercise of discretion; (4) the respondent did not perform the
act requested and the time for performance of the act has expired; and
(5) no alternative, legally adequate remedy is available.
Id. (cleaned up); see Richardson v. Utili-Serve, LLC, 2020 NCBC LEXIS 135, at **14
(N.C. Super. Ct. Nov. 17, 2020).
28. 	Here, as to the fifth required element for issuance of a writ, Plaintiffs have
another legally adequate remedy available to them, as the Motion itself indicates:
summary judgment in their favor on Count One. 	Plaintiffs do not address why
summary judgment would not serve as a satisfactory alternative remedy. Therefore,
the Motion is DENIED in part to the extent it requests the Court issue a writ of
mandamus. This determination is without prejudice to a renewal of the application
for the writ if circumstances later appear to warrant the relief. 	See Mears v. Bd. of
Educ. of Buncombe Cty., 214 N.C. 89, 92 (1938).
B. 	Motion for Summary Judgment on Count One
29. 	Next, Plaintiffs contend that the Court should grant affirmative summary
judgment on Count One against OOG for its failure to pay declared dividends. 	(Br.
Supp. 4 n.2, 7; Pls.’ Reply Br. 6, ECF No. 58.)
30. 	In Count One, Plaintiffs allege that OOG violated N.C.G.S. § 55-6-40 by
failing 	to 	pay 	its 	shareholders 	the 	$850,000.00 	dividend 	declared 	on

27 September 2023, seeking recovery in the form of payment of their share of that
amount. (Compl. ¶¶ 74–80.)
31. 	North Carolina General Statutes § 55-6-40(a) provides that “[a] board of
directors 	may 	authorize 	and 	the 	corporation 	may 	make 	distributions 	to 	its
shareholders[.]” 	Subsection (c) therein “prohibits an insolvent corporation from
making distributions to its shareholders.” Cent. Carolina Surgical Eye Assocs., P.A.
v. Matthews, 2022 NCBC LEXIS 22, at **36 (N.C. Super. Ct. Mar. 16, 2022). 	Our
Courts have held that to sustain a claim for failure to pay declared dividends, a
claimant must allege that, at the time the action was initiated, funds were available
for the payment of dividends and that the corporation is solvent. 	Id. at **38 (citing
Steele v. Locke Cotton Mills Co., 231 N.C. 636, 640–42 (1950), and Gaines v. Long Mfg.
Co., 234 N.C. 331, 339 (1951)). 	Thus, if it is demonstrated that (1) the board of
directors 	properly 	authorized 	the 	corporation 	to 	make 	a 	distribution 	to 	its
shareholders, and (2) the corporation is solvent with sufficient funds to pay the
dividend, “a court of equity has jurisdiction to compel the declaration and payment of
corporate dividends wrongfully withheld from minority stockholders.” 	Gaines, 234
N.C. at 338.
32. 	“A corporation’s indebtedness to a shareholder incurred by reason of a
distribution made in accordance with this section is at parity with the corporation’s
indebtedness to its general, unsecured creditors except to the extent otherwise
provided by agreement.” 	N.C.G.S. § 55-6-40(f). 	Thus, once properly declared, a

dividend payable to shareholders becomes a debt of the company akin to other
unsecured debts.
33. 	Defendants 	argue 	that 	genuine 	issues 	of material fact 	remain 	as to
(1) whether the declaration of the dividend at the 27 September Board Meeting
satisfied the requirements of N.C.G.S. § 55-6-40, and (2) whether it continues to be a
valid declaration. 	(Defs.’ Resp. Opp’n Mot. 14, ECF No. 51 [“Resp. Br.”].) 	These
arguments are unavailing.
34. 	Here, it is undisputed that Plaintiffs were directors of OOG at the time they
voted to approve the $850,000.00 dividend. 	Further, pursuant to N.C.G.S. § 55-6-
40(a), the OOG Articles of Incorporation do not contain restrictions that would
disallow the dividend.6 In fact, the OOG Articles of Incorporation filed with the North
Carolina Secretary of State do not mention dividends.
35. 	It is also undisputed that Plaintiffs provided proper notice of a special
meeting in accordance with Article II, Section 3 of the Bylaws of OOG, and that
Ormond did not object in writing. (See OOG Bylaws 2.) Further, the meeting minutes
from the 27 September Board Meeting demonstrate that Plaintiffs, acting as a
majority of the directors, resolved that: (1) OOG would pay to its shareholders a
6 While the OOG Articles of Incorporation are not a filing of record, the parties have quoted
from portions of it throughout this litigation. (Defs.’ Resp. Opp’n Pls.’ Mot. Amend Compl. 3,
ECF No. 85; Ormond Cos. Answer ¶¶ 9, 11, 42.) “The Court may take judicial notice of public
filings available on the North Carolina Secretary of State’s official website.” 	Banc of Am.
Merch. Servs., LLC v. Arby’s Rest. Grp., Inc., 2021 NCBC LEXIS 60, at *5 n.3 (N.C. Super.
Ct. June 30, 2021) (citing N.C. R. Evid. 201(b), (c)). The Court hereby takes judicial notice of
the OOG Articles of Incorporation appearing on the North Carolina Secretary of State’s
official website. 	See Arts. of Incorp. of OOG (SOSID: 0108359) (Doc. ID 000234013) (filed
Jan. 6, 1978), available at https://www.sosnc.gov.

dividend in the total amount of $850,000.00; and (2) the dividend would be due and
payable on 29 September 2023. (See Compl. Ex. F.) The 29 September 2023 payment
date came and went without a transfer of funds to Plaintiffs for their proportionate
share of the $850,000.00.
36. 	Furthermore, the record demonstrates that OOG is a solvent company with
funds sufficient to pay the dividend. (Compl. Ex. I at 2 (OOG “is sitting on, according
to you, approximately $3,000,000.00 in cash”); CRI Report 23, ECF No. 90.1; Third
Aff. 	Sherry 	Worley 	¶ 3 	(detailing 	that Ormond told Worley 	OOG 	“would pay
$3 Million (with $2.2 Million upfront) for an acquisition and would not have to borrow
money. We also knew the company had been doing very well, and it ought to have a
lot of excess cash and no debt.”), ¶ 5 (“I have since learned that our perceptions about
OOG’s cash position being more than sufficient to support a dividend was correct, and
that we were actually conservative, as I had thought.”), ECF No. 58.2; Fourth
Massengill Aff., ECF No. 58.3 (stating the same).)
37. 	In opposition to the Motion, Defendants have not come forth with competent
evidence demonstrating that OOG would be unable to pay the dividend or that paying
the dividend would otherwise cause OOG to become insolvent such that dissolution
and winding up processes would result in unfairness to creditors and shareholders.
See Cent. Carolina Surgical, 2022 NCBC LEXIS 22, at **39.7
7 Interestingly, the evidence before the Court indicates that, while Ormond attempted to
cause the directors to rescind the declaration of dividend at issue, on 22 December 2023 he
proposed to declare a dividend in the amount of $375,000.00. (See Resp. Br. 7; Shawn Wiggins
Aff. ¶¶ 5–9, ECF No. 51.1 [“Wiggins Aff.”].) OOG’s Chief Financial Officer Shawn Wiggins
(“Wiggins”) testified that, during the 22 December 2023 Board of Directors meeting, he
“provided a summary of OOG’s financial condition and its current and future needs and,

38. 	Even viewing the evidence in the light most favorable to OOG, Plaintiffs
have 	demonstrated that 	the OOG 	Board of 	Directors 	properly 	authorized the
corporation to make a distribution to its shareholders in the amount of $850,000.00.
39. 	While Defendants also appear to argue that a vote during the subsequent
22 November 2023 special meeting served to properly rescind the dividend, (Resp.
Br. 7, 14), that vote came after the payment date of the dividend passed, making it
legally ineffective. 	Further, the Court has already ordered that the composition of
the OOG Board of Directors at that meeting was improper. 	(30 Apr. Order at 10
(“[T]he removal of Massengill as a director of OOG was ineffective, as was the election
of Ron Waters, since there was no vacancy to fill, and the election of a replacement
was not noticed for the meeting. 	Plaintiffs therefore remain members of the OOG
Board of Directors.”).) As a result, the vote taken at that meeting was ineffective.
40. 	The $850,000.00 dividend became recoverable on 29 September 2023, and
it remains an outstanding debt of OOG. 	Therefore, while it is rarely appropriate to
grant affirmative summary judgment, the Court determines that this is the rare
circumstance warranting such a ruling as Plaintiffs have demonstrated that there
are no genuine issues of fact, no gaps in their proof, and no inferences inconsistent
based thereon, recommended that the OOG Directors declare a $375,000 dividend for 2023.”
(Wiggins Aff. ¶¶ 3, 5.) 	Wiggins did not testify or otherwise opine that payment of an
$850,000.00 dividend would place the company in financial peril. (See Wiggins Aff.; see also
Ex. A to Wiggins Aff.)
Ultimately, when Ronald Waters moved to declare a $375,000.00 dividend, and Ormond
seconded the motion, the pair voted together to approve the dividend. (Wiggins Aff. Ex. A at
12:13–13:3.) Worley voted against that motion. (Wiggins Aff. Ex. A at 12:19–24.)

with their recovery arising from the evidence that would warrant a denial of the
Motion.
V. 	CONCLUSION
41. 	THEREFORE, for the foregoing reasons, the Court GRANTS in part and
DENIES in part the Motion. 	The Motion is GRANTED to the extent it requests
summary judgment on Plaintiffs’ Count One against OOG for failure to pay a declared
dividend. Plaintiffs are entitled to their respective shares of the $850,000.00 dividend
declared on 27 September 2023 as it was not timely or properly rescinded.
42. 	Except as expressly granted, the Motion is DENIED without prejudice to a
renewal of the application for the writ of mandamus if circumstances later appear to
warrant the relief.
43. 	In accordance with N.C.G.S. § 55-6-40(h), Plaintiffs, as shareholders of
OOG, are entitled to recover from the corporation all reasonable expenses, including
attorney’s fees, in seeking the relief requested in the Motion.
IT IS SO ORDERED, this the 11th day of June, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases