Patriot Performance Materials, Inc. v. Powell

Patriot Performance Materials, Inc. v. Powell, 2013 NCBC 10.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF LEE 12 CVS 814

PATRIOT PERFORMANCE )
MATERIALS, INC., PATRIOT )
OUTFITTERS, INC., and )
WILLIAM J. HENDERSON, IV, )
)
Plaintiffs, )
)
v. )
)
WILLIAM C. POWELL, ) ORDER ON MOTION TO DISMISS
) THIRD-
THIRD-PARTY COMPLAINT
Defendant and Third-Party Plaintiff, ) AGAINST AMBER CLANCY
)
v. )
)
BEVERLY HENDERSON, JORDAN )
HENDERSON, MELISSA ROESLER, )
and AMBER CLANCY, )
)
Third-Party Defendants. )
)

{1} THIS MATTER is before the court on Third-Party Defendant Amber
Wedlake’s, f/k/a/ Amber Clancy, Motion to Dismiss the Third-Party Complaint
(“Motion”). For the reasons stated below the Motion is GRANTED.

The Law Offices of Lonnie M. Player, Jr., PLLC by Lonnie M. Player for
Defendant and Third-Party Plaintiff William C. Powell.

Law Office of Charles M. Oldham, PLLC by Charles M. Oldham, III and The
Lile-King Firm by Phyllis Lile-King for Third-Party Defendant Amber
Wedlake.

Gale, Judge.
I. PROCEDURAL BACKGROUND

{2} Plaintiffs initiated this lawsuit against Defendant and Third-Party
Plaintiff William C. Powell (“Powell”) by Complaint dated July 23, 2012, alleging
claims for breach of fiduciary duty and tortious interference with business
relationships arising out of Powell’s alleged mismanagement of businesses co-owned
by Powell and Plaintiff William J. Henderson, IV (“Henderson”). On September 11,
2012, Powell answered and asserted counterclaims against Henderson alleging that
Henderson converted funds from their jointly-owned businesses for his own
personal use. Powell also brought third-party complaints against Henderson’s wife
Beverly Henderson, Henderson’s daughter Jordan Henderson, Melissa Roesler, and
Amber Clancy (“Clancy”), all of whom, Powell alleges, received benefits from
Henderson’s conversion of company monies.
{3} Clancy answered and moved to dismiss the third-party complaint
against her on October 26, 2012. The Motion has been fully briefed, oral argument
was held on February 12, 2013, and the matter is ripe for disposition.

II. FACTUAL BACKGROUND

{4} The court does not make findings of fact in connection with a motion to
dismiss, as a motion to dismiss “does not present the merits, but only [determines]
whether the merits may be reached.” Concrete Serv. Corp. v. Investors Grp., Inc.,
79 N.C. App. 678, 681, 340 S.E.2d 755, 758 (1986). The following facts are stated to
provide context for the court’s opinion and are construed in favor of the Plaintiff,
with the court drawing permissible inferences not inconsistent with the facts
alleged.
{5} Henderson and Powell are equal co-owners of several businesses, two
of which are Plaintiffs in this action. (Compl. ¶¶ 1–4, 7; Answer, Affirmative
Defense, Countercls. and Third Party Compl. [hereinafter “Third Party Compl.”] 5–
6 ¶¶ 4, 7, 10, 11.) Powell’s counterclaims allege, inter alia, that “for the nine (9)
months of December, 2005 and January, 2006 and May, 2006 through November,
2006” Henderson “us[ed] company funds to lavish gifts upon women.” (Third Party
Compl. 7 ¶¶ 13, 15.) For example, the counterclaim alleges:
[I]n 2006, Plaintiff Henderson diverted over $30,000.00 in company
funds . . . for the purpose of purchasing a Mercedes-Benz automobile
and a high-end Apple Mac computer for Third Party Defendant Amber
Clancy, a woman who, upon information and belief, had been a nanny
for Plaintiff Henderson and his wife, Third Party Defendant Beverly
Henderson.

(Third Party Compl. 7 ¶ 16.)

{6} This allegation forms the basis of Powell’s third-party complaint
against Clancy, which claims that Clancy was unjustly enriched by the items given
to her by Henderson, items which were purchased with corporate funds. (Third
Party Compl. 20 ¶¶ 9–11.)

III. STANDARD OF REVIEW

{7} The appropriate inquiry on a motion to dismiss pursuant to Rule
12(b)(6) is “whether, as a matter of law, the allegations of the complaint, treated as
true, are sufficient to state a claim upon which relief may be granted under some
legal theory, whether properly labeled or not.” Crouse v. Mineo, 189 N.C. App. 232,
237, 658 S.E.2d 33, 36 (2008) (quoting Harris v. NCNB Nat’l Bank, 85 N.C. App.
669, 670, 355 S.E.2d 838, 840 (1987)). A claim may be properly dismissed “pursuant
to Rule 12(b)(6) if no law exists to support the claim, if the complaint fails to allege
sufficient facts to assert a viable claim, or if the complaint alleges facts that will
necessarily defeat the claim.” Bob Timberlake Collection, Inc. v. Edwards, 176 N.C.
App. 33, 40, 626 S.E.2d 315, 322 (2006).
IV. ANALYSIS

{8} In order to prevail on a claim for unjust enrichment, a plaintiff must
show that (1) it conferred a benefit on the other party; (2) the benefit was not
conferred officiously; (3) the benefit was not gratuitous; (4) the benefit is
measurable; and (5) the defendant consciously accepted the benefit. Booe v.
Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 555–56 (1988).
{9} Claims for unjust enrichment are governed by a three-year statute of
limitations as an implied contract under N.C. GEN. STAT. § 1-52(1) (2012).
Housecalls Home Health Care, Inc. v. State, 200 N.C. App. 66, 70, 682 S.E.2d 741,
744 (2009).
{10} Powell alleges that Henderson wrongly used corporate funds to confer
benefits upon Clancy. (Third Party Compl. 7 ¶ 16, 20 ¶¶ 10–11.) Thus it was the
corporation, not Powell individually, who conferred a benefit, if any, upon Clancy
and it is the corporation that would be the proper party to bring such an action. See
Effler v. Pyles, 94 N.C. App. 349, 353, 380 S.E.2d 149, 152 (1989).
{11} However, even if Powell were the proper plaintiff or if the claim had
been properly brought on behalf of the corporation, the third-party complaint itself
alleges that the items given to Clancy were “gifts,” which fall outside the purview of
a claim for unjust enrichment. Booe, 322 N.C. at 570, 369 S.E.2d at 555–56; (Third
Party Compl. 7 ¶ 15; Response 5.) And, as stated, an action for unjust enrichment
is governed by a three-year statute of limitations and is not governed by a discovery
rule. By incorporating the allegations of the counterclaim, Powell’s third-party
complaint on its face alleges that the items were given to Clancy in 2006, more than
three years before the claim against Clancy was initiated in September 2012.
V. CONCLUSION

{12} For the reasons stated above, the Motion is GRANTED.

IT IS SO ORDERED this 13th day of February, 2013.