Overton Row Holdings, LLC v. Cw Constr. & Dev., LLC

Overton Row Holdings, LLC v. CW Constr. & Dev., LLC, 2026 NCBC 49.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY 22CVS013875-590

OVERTON ROW HOLDINGS, LLC, and
OVERTON ROW HOLDINGS, II, LLC,

Plaintiffs,

v.

CW CONSTRUCTION & ORDER AND OPINION ON AGA
DEVELOPMENT, LLC, CENTRAL STUCCO, LLC’S MOTION FOR
AVENUE CW, LLC, CENTRAL SUMMARY JUDGMENT
AVENUE GP, LLC, KAPLAN AND ITS MOTION TO ACCEPT
RESIDENTIAL, LLC, CENTRAL LATE FILINGS AS TIMELY
AVENUE KAPLAN, LLC, MORRIS J.
KAPLAN COMMUNITIES, LLC,
MORRIS J. KAPLAN, ALL-IN
BUILDERS, LLC, CAPITAL CITY
STUCCO, INC., SUPERIOR MASONRY
UNLIMITED, INC., and AGA STUCCO,
LLC.

Defendants.

1. This matter is before the Court on (i) AGA Stucco, LLC’s motion for

summary judgment, (ECF No. 392), made pursuant to Rule 56 of the North Carolina

Rules of Civil Procedure and (ii) AGA Stucco’s motion for the Court to accept the late

filing of its motion for summary judgment and supporting documents, (ECF No. 394),

made pursuant to Rules 59 and 60.

2. Having considered the motions, the parties’ submissions, the arguments of

counsel, and all other appropriate matters of record, the Court hereby DENIES the

motions for the reasons set forth below.
Robinson Elliot & Smith, by Dorothy M. Gooding and William C.
Robinson; Brooks, Pierce, McLendon & Leonard, LLP, by David Allen
and Anna Majestro; Shumaker, Loop & Kendrick, LLP, by James
Douglas Grimes; and Bartlett Loeb Hinds Thompson & Angelos by
Allison Doucette, Ethan Loeb, Elliott P. Haney, Christina C. Dodds,
Edward Colin Thompson, and Matthew Garnett, for Overton Row
Holdings, LLC and Overton Row Holdings, II, LLC

Martineau King, PLLC, by Elizabeth A. Martineau and Ian Matthew
Hobbs for AGA Stucco, LLC and Capital City Stucco, Inc.

Bishop, Dulaney, Joyner & Abner, PA, by Anthony T. Capitano, for CW
Construction & Development, LLC

Seyfarth Shaw LLP, by Vincent Smolczynski, Robert Lafayette, Rebecca
Woods, Connor Hutchins, Dana C. Lumsden, John W. Egan, and Sara
Beiro Farabow; and Bradley Arant Boult Cummings LLP, by Robert R.
Marcus for Kaplan Residential, LLC; Central Avenue CW; Central
Avenue GP, LLC; Central Avenue Kaplan, LLC; Morris J. Kaplan
Communities, LLC; and Morris J. Kaplan

Ross & Cristaldi, LLC by Scott H. Winograd for Superior Masonry
Unlimited, Inc.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Brian M. Williams,
John Wright and Allison R. Carswell for All-In Builders, LLC

Richard Plowden & Robinson, P.A., by Hunter Weston Adams for I&J
Framing, LLC, I&J Builders, LLC, and Ernestina Daniel-Villa

Cranfill Sumner LLP, by Russell M. Racine for Kasah Masonry, LLC

Houston, Judge.

I. BACKGROUND

3. This matter was filed on 25 August 2022 and reassigned to the undersigned

Business Court judge on 28 August 2025. (ECF Nos. 1, 36). Shortly thereafter, the

Court entered a Final Amended Case Management Order. (ECF No. 281).

4. The Final Amended Case Management Order reminds counsel and the
parties that, as a case designated as exceptional pursuant to Rule 2.1 of the General

Rules of Practice for the Superior and District Courts and assigned to a Business

Court judge, “this action is now governed by the Business Court Rules,” and “all

filings in this case must be made twice: first, with the Business Court through its

electronic filing system, pursuant to BCR 3.1, and second, with the Clerk of Superior

Court of the county in which the case is pending, pursuant to BCR 3.11[.]” (ECF No.

281 at 2 & ¶ 2(a) (emphasis added)).

5. Further, the Final Amended Case Management Order sets various case

management deadlines, including a deadline for the filing of all post-discovery

dispositive motions, requiring all parties “to file and serve a[ny] dispositive motion

(including motions for summary judgment)” no later than “21 May 2026.” (ECF No.

281, ¶ 5(d) (emphasis in original)).

6. As explained in the publicly published Quick-Reference Guide for the North

Carolina Business Court’s Electronic Filing System, “the file size limit for an

individual document is 110 MB,” but “there is no file size limit for your total filing

queue submission.” Quick Reference Guide at 8, § 2.3.3 (Mar. 12, 2026). “If a document

exceeds 110 MB, you will need to split the document into several smaller documents

and upload each one into the filing queue.” Id.; see also BCR 3.1 (“Instructions for

filing documents through the Court’s electronic-filing system are available on the

Court’s website.”)

7. Similarly, the file size limit for the statewide Odyssey electronic filing
system 1 used by the Mecklenburg County Clerk of Superior Court is 26.21 MB per

filing, though “[t]here can be multiple filings within a single envelope (i.e., per

submission).” eCourts FAQs for Attorneys: eFiling (June 13, 2023),

https://www.nccourts.gov/assets/documents/publications/eCourts-FAQS-for-

Attorneys-eFiling-20230613.pdf.

8. On 21 May 2026, AGA Stucco filed its motion for summary judgment, , brief

in support, and supporting exhibits, with the Mecklenburg County Clerk of Superior

Court via the Odyssey electronic filing system between 5:31 and 5:42 pm ET.

(Odyssey Index No. 433, 434). 2

9. AGA Stucco’s attorneys did not attempt to begin filing the documents until

approximately 4:00 pm ET and assert they were delayed in filing the documents prior

to 5:00 pm ET because the files were unwittingly prepared larger than the size

permitted by Odyssey. (ECF No. 394, ¶ 2). The delay was not attributable to any

failure of the filing system and, as AGA Stucco’s counsel and staff acknowledge, was

purely based on counsel’s own failure to ensure that exhibits were of an appropriate

size to permit their filing. (See generally ECF No. 394, Aff. K. Cain & Aff. M. Hobbs). 3

1 The statewide filing system utilized by the Mecklenburg County Clerk of Superior Court is

variously known as eFile, Odyssey, and Enterprise Justice, among other things. For clarity,
the Court uses “Odyssey” in this Order and Opinion.
2 The Court uses the phrase “Odyssey Index” to refer to the location of filings on the Odyssey

filing system, while “ECF” is used to refer to the location of documents filed using the
Business Court’s Alpine/eFlex filing system.
3 Reflective of ongoing failures to follow filing requirements in this case, AGA Stucco’s motion

and supporting documents are uploaded as a single PDF, failing to comply with the Court’s
requirement that attachments be uploaded as separate documents. Quick Reference Guide
at 13, § 4.1.2 (“Each exhibit or supporting document should be uploaded as an attachment;
that is, do not file multiple exhibits within a single file.”).
10. Because they were filed after 5:00 pm ET, those documents were deemed

filed, and are currently docketed as having been filed, on 22 May 2026, even for

Odyssey filing purposes—entirely separate and apart from Business Court filing

requirements. See Gen. R. Pract. Super. & Dist. Cts. 5(b)(4)(b) (“If a document is due

on a date certain, then the document must be filed by 5:00 p.m. Eastern Time on that

date.”).

11. In addition to its belated filing with the Mecklenburg County Clerk of

Superior Court, AGA Stucco simply failed to file, or even attempt to file, its motion,

brief, or exhibits with the Business Court on the Business Court’s separate electronic

filing system, commonly known as “Alpine” or “eFlex.”

12. On 27 May 2026, nearly a week after belatedly filing its motion papers with

the Mecklenburg County Clerk of Superior Court, AGA Stucco for the first time filed

a motion for summary judgment, a brief, and certain supporting exhibits on Alpine.

(ECF Nos. 392, 393, 393.1). Notably, however, the brief filed with the Court via the

Alpine system was not AGA Stucco’s brief in support of its motion for summary

judgment. Rather, it was a refiling of Capital City Stucco, Inc.’s brief in support of its

motion for summary judgment. (See generally ECF No. 393). 4

13. Thus, while the motion was filed with the Court effective 27 May 2026, six

days after the deadline set by the Final Amended Case Management Order, (ECF No.

281, ¶ 5(d)), AGA Stucco still has not filed its supporting brief with the Court, and it

is simply unclear if the exhibits attached to Capital City Stucco, Inc.’s brief are those

4 Capital City Stucco is an entirely different party represented by the same attorneys in

this action.
intended to be filed with AGA Stucco’s brief or Capital City Stucco’s brief.

14. Nonetheless, on 28 May 2026, AGA Stucco filed its motion to accept late

filings, asking the Court to accept its motion for summary judgment and related

filings as timely filed and citing as authority for its request Rules 59 and 60 of the

Rules of Civil Procedure and Rules 7.10 and 7.11 of the Business Court Rules. (ECF

No. 394 at 1).

15. Though the motion facially indicates that it was filed pursuant to Rules 59

and 60, at the time of the motion, the Court had not entered a judgment to be

amended or set aside concerning the issue, nor had there been a trial of the action.

II. ANALYSIS

A. Motion for Summary Judgment.

16. Rule 3.1 of the Business Court Rules provides that “all filings in the Court

must be made electronically through the Court’s electronic-filing system [i.e.,

Alpine/eFlex] beginning immediately upon designation of the action” to a Business

Court judge. BCR 3.1; KJET Ventures, LLC v. Jamison, 2026 NCBC LEXIS 1, at *10–

11 (N.C. Super. Ct. Jan. 6, 2026).

17. Further, “[i]f a document is due on a date certain, then the document must

be filed by 5:00 p.m. Eastern Time on that date, unless the Court orders otherwise.”

BCR 3.6; see also N.C. R. Civ. P. 5(d) (setting 5:00 pm ET as the service deadline);

Gen. R. Pract. Super. & Dist. Cts. 5(b)(4)(b) (“If a document is due on a date certain,

then the document must be filed by 5:00 p.m. Eastern Time on that date.”). This

requirement applies to briefs and supporting material as well as motions. BCR 3.6;
BCR 7.11 (“Absent a showing of excusable neglect or as otherwise ordered by the

Court, the failure to timely file a brief or supporting material waives a party’s right

to file the brief or supporting material.”); see also N.C. R. Civ. P. 5(d).

18. Under Rule 7.1(c) of the Business Court Rules, “the Court has discretion to

disregard or strike a filing that does not comply with these rules.” BCR 7.1(c). The

Court’s authority includes the inherent authority to summarily deny such filings.

State v. Bellar, 16 N.C. App. 339, 343 (1972) (discussing courts’ inherent authority to

strike improper filings); Castillo v. RRD Fin., LLC, 2025 NCBC LEXIS 114, at *10

(N.C. Super. Ct. Sept. 3, 2025) (striking and denying partial motion for judgment on

the pleadings for failure to comply with Business Court Rules).

19. Moreover, “[u]nless listed in BCR 7.10, a motion must be accompanied by a

brief. The Court has discretion to deny the motion summarily if a required brief is

not filed.” BCR 7.2.

20. Here, pursuant to the Final Amended Case Management Order, the parties’

motions for summary judgment were required to be filed with the Court via its Alpine

filing system no later than 21 May 2026. (ECF No. 281 at 2 & ¶¶ 2(a), 5(d)).

21. AGA Stucco’s motion for summary judgment, brief, and supporting

documents were not properly filed with the Court via its Alpine filing system by that

deadline and were not otherwise filed in compliance with the Final Amended Case

Management Order. Indeed, as of the date of this Order and Opinion, AGA Stucco

still has not filed a brief in support of its motion with the Court, filing only Capital

City Stucco’s brief instead. BCR 7.1(c); BCR 7.2.
22. These are all sufficient bases on which to deny, strike, or otherwise

disregard the filing.

23. Accordingly, in the exercise of judicial discretion, the Court DENIES AGA

Stucco’s motion for summary judgment.

B. Motion to Accept Late Filings as Timely.

24. To the extent that AGA Stucco requests that the Court deem the motion for

summary judgment, brief, and supporting documents timely filed, there is no brief in

support of AGA Stucco’s motion for summary judgment, such that the motion for

summary judgment would still be properly denied under Rule 7.2 of the Business

Court Rules, as explained above, even if all of the documents were deemed timely

filed. See BCR 7.2.

25. Moreover, even considering the motion for relief on the merits, there is

simply no basis for the motion under Rules 59 and 60 of the North Carolina Rules of

Civil Procedure. AGA Stucco does not request that the Court amend or set aside any

existing order, nor has there been a trial that might properly be the subject of a

motion under either Rule. See N.C. R. Civ. P. 59 (addressing new trials and

amendment of judgments); N.C. R. Civ. P. 60 (addressing relief from judgments or

orders). 5

26. While AGA Stucco’s counsel imply that they were unaware of the

requirement “to parallel file” documents with the Business Court and the

5 Even if the Court were to construe the motion as one made under Rule 6(b) of the North

Carolina Rules of Civil Procedure for an enlargement of time after expiration of the specified
period on the basis of “excusable neglect,” in its discretion, the Court would reach the same
ultimate determinations in this Order and Opinion and would deny the request.
Mecklenburg County Clerk of Superior Court utilizing separate electronic filing

platforms, (ECF No. 394, ¶ 5), this statement is not credible, and the record directly

contradicts this suggestion.

27. Specifically, the same attorneys filed a motion, brief in support, and

supporting exhibits with the Business Court on 21 May 2026 on behalf of Capital City

Stucco, (ECF Nos. 351, 352, 358, 358.1–358.15), before filing the brief in support

(twice) and supporting documents with the Mecklenburg County Clerk of Superior

Court via Odyssey effective 22 May 2026, (Odyssey Index Nos. 437, 438, 439). 6

28. Moreover, the Final Amended Case Management Order expressly set out

the applicable filing requirements. (See ECF No. 281 at 2 & ¶¶ 2(a), 5(d)).

29. Ultimately, AGA Stucco has failed to justify its failure to file its summary

judgment motion with the Court via Alpine until six days after the deadline and has

similarly failed to justify permitting the belated filing of a brief on behalf of AGA

Stucco, particularly when it still has not filed a brief on behalf of that entity.

30. Even if the filings with the Mecklenburg County Clerk of Superior Court

were the operative documents, AGA Stucco has offered no explanation why the Court

6 The documents were actually submitted for filing on Odyssey after 5:00 pm ET on 21 May

2026. As a result, they were deemed filed (and listed on the docket as filed) on 22 May 2026.
BCR 3.6; Gen. R. Practice Super. & Dist. Cts. 5(b)(4)(b) (“If a document is due on a date
certain, then the document must be filed by 5:00 p.m. Eastern Time on that date.”). The Court
notes that, while one of the docket entries on Odyssey indicates that it is a “Motion for
Summary Judgment,” the underlying document is not a motion. Rather, Capital City filed
two copies of “Capital City Stucco, Inc.’s Memorandum of Law in Support of Its Motion for
Summary Judgment.” (Compare Odyssey Index No. 437, with Index No. 438). Minor filing
errors happen. However, persistent systemic and substantive errors, such as repeatedly filing
the wrong documents on behalf of the wrong parties, reflect inadequate training on the
Court’s filing systems, an inexcusable inattention to filing details, or both.
should consider them timely filed since they were filed after 5:00 pm ET. Gen. R.

Practice Super. & Dist. Cts. 5(b)(4)(b) (“If a document is due on a date certain, then

the document must be filed by 5:00 p.m. Eastern Time on that date.”); BCR 3.6.

31. Thus, the Court determines in its discretion that it is appropriate to DENY

the motion to the extent it is made under Rules 59 and 60 of the North Carolina Rules

of Civil Procedure.

32. Further, to the extent that AGA Stucco’s motion is brought pursuant to Rule

7.10 and 7.11 of the Business Court Rules, those Rules also do not justify the relief

requested.

33. Rule 7.10 of the Business Court Rules simply identifies the motions that

may be filed without a supporting brief. See generally BCR 7.10. Neither motions for

relief brought under Rule 59 and 60 of the North Carolina Rules of Civil Procedure

nor motions brought pursuant to Rule 7.11 of the Business Court Rules are included

within that Rule. See generally BCR 7.10.

34. Rule 7.11 of the Business Court Rules provides that, “[a]bsent a showing of

excusable neglect or as otherwise ordered by the Court, the failure to timely file a

brief or supporting material waives a party’s right to file the brief or supporting

material.” BCR 7.11.

35. While this Rule could potentially be used to justify AGA Stucco’s failure to

timely file its supporting brief with the Court via Alpine (which it still has not done),

by its plain language, it is limited to “a brief or supporting material” and does not
provide a basis on which to excuse AGA Stucco’s failure to timely file its motion. BCR

7.11; (see ECF Nos. 392, 393, 393.1).

36. The problem here was not with the Odyssey filing system, the Alpine filing

system, or any other filing system—the type of issue that might reasonably warrant

relief in the Court’s discretion.

37. Rather, the problem is and was AGA Stucco’s counsel’s decision to wait until

the last minute to file on Odyssey and their failure to file on Alpine for at least six

days thereafter (or, in the case of AGA Stucco’s supporting brief, at all).

38. The Court, in the exercise of its discretion, determines that AGA Stucco has

failed to meet its burden to demonstrate that relief is warranted under the bases set

forth in the motion to deem the filing timely and that it is appropriate to DENY that

motion to the extent that it is brought pursuant to Rules 7.10 and 7.11 of the Business

Court Rules.

III. CONCLUSION

39. Accordingly, the Court DENIES AGA Stucco’s motions, (ECF Nos. 392 and

394), as set forth above.

SO ORDERED, this 2nd day of June 2026.

/s/ Matthew T. Houston
Matthew T. Houston
Special Superior Court Judge
for Complex Business Cases