Brier Creek Owners Ass'n v. Brier Creek Country Club Owners Ass'n

Brier Creek Owners Ass’n v. Brier Creek Country Club Owners Ass’n, 2026 NCBC
42.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
WAKE COUNTY 25CV024837-910

BRIER CREEK OWNERS
ASSOCIATION, INC.,

Plaintiff/
Counterclaim- ORDER AND OPINION ON
Defendant PLAINTIFF’S MOTION TO DISMISS
v. COUNTERCLAIMS

BRIER CREEK COUNTRY CLUB
OWNERS ASSOCIATION, INC.,

Defendant/
Counterclaim-
Plaintiff

1. This matter is before the Court on the Rule 12(b)(6) motion to dismiss

filed by plaintiff Brier Creek Owners Association, Inc., seeking dismissal of the

counterclaims asserted by defendant Brier Creek Country Club Owners Association,

Inc. in this action. (ECF No. 12).

2. Having considered the counterclaims, the motion, and the written

arguments of counsel, the Court GRANTS Plaintiff’s motion as set forth below.

Rayburn Cooper & Durham, P.A. by Matthew Tomsic and Rachel Emily
Brinson for the Plaintiff/Counterclaim-Defendant.

Omer Law Firm by David Omer and Ragsdale Liggett PLLC by
Benjamin Kuhn for Defendant/Counterclaim-Plaintiff.

I. BACKGROUND

3. The Court does not make findings of fact in ruling on a Rule 12(b)(6)

motion to dismiss. Instead, for background, the Court summarizes the factual
allegations of the counterclaims that are most relevant to the Court’s decision and

accepts the well-pleaded allegations as true for purposes of this Order and Opinion. 1

4. Plaintiff/Counterclaim-Defendant Brier Creek Owners Association, Inc.

is a North Carolina non-profit corporation and homeowners association with its

principal office in Mecklenburg County, North Carolina. Much of Plaintiff’s authority

was delegated and assigned to it by a Declaration of Covenants, Conditions and

Restrictions for Brier Creek executed on 30 March 1998 (the “BCOA Declaration”).

The BCOA Declaration governs the use of certain real property in Wake County and

Durham County known as the Brier Creek development (“Brier Creek”).

5. Under the BCOA Declaration, Plaintiff’s “powers and functions” are

generally

limited to: (a) the maintenance, upkeep, operation, repair and
replacement of those portions of the public right-of-way of Brier
Creek Parkway not maintained by the North Carolina
Department of Transportation or other governmental authority
. . . including the maintenance, upkeep, operation, repair and
replacement of any sidewalks or pathways, trails, trees, shrubs,
flowers or other landscaping, sprinkler systems, lighting fixtures,
medians, entrance features (including signs or monuments)
located at the intersection of Brier Creek Parkway and Lumley
Road (but excluding any such entrance signs or monuments at
other intersections of Brier Creek Parkway with other roads or
streets) utilities facilities, and irrigation and sprinkler systems,
including the cost of the furnishing of any utility services to such
facilities; and (b) the maintenance, upkeep, operation, repair and
replacement of the Greenway should the Association own the
Greenway as a result of the City of Raleigh or other governmental
authority failing to take title to the Greenway. The Association
shall have the power and authority to contract for the

1 The Court observes that Defendant’s counterclaims largely quote from real property
declarations, most of which Defendant fails to relate in any way to its substantive causes of
action beyond conclusory allegations—a problem compounded by Defendant’s failure to
respond to the motion to dismiss.
performance of such functions and to levy assessments to pay for
such performance. Such assessments shall be limited to the
actual cost of such maintenance, upkeep, operation, repair and
replacement, plus any directly related expenses, plus a
reasonable management and administrative fee.

(ECF No. 4 at 10–13, ¶¶ 1, 4–7, 10–13 and Ex. A).

6. Under the BCOA Declaration, assessments for maintaining the Brier

Creek Parkway right of way are required to “be allocated among the members [of

Plaintiff] in percentages approximately equal to the percentage of frontage on Brier

Creek Parkway owned by each member compared to the total frontage on Brier Creek

Parkway of all Property owned by all members of the Association,” with such

assessments against owners of property identified as the “Single Family Tract” 2 not

to exceed 9% of the “total assessment for such purposes.” (ECF No. 4 at 12–13, ¶¶ 11–

12 & Ex. A, § 10.05). The BCOA Declaration imposes a similar limitation for

“Greenway” assessments, limiting such assessments to 41% of the total for Single

Family Tract owners. (ECF No. 4 at 13, ¶ 13).

7. However, Plaintiff is permitted to “to levy special assessments ‘for the

purpose of defraying, in whole or in part, the cost of any construction or

reconstruction, unexpected repair or replacement of the Improvements and facilities

to be maintained by the Association.” (ECF No. 4 at 13, ¶ 14).

8. The BCOA Declaration contemplates the creation of a second

homeowners association (i.e., defendant/counterclaim-plaintiff Brier Creek Country

2 The “Single Family Tract” is certain real property identified in the BCOA Declaration as

property that was to be used “solely for residential purposes” and for the development and
operation of a golf course. (ECF No. 4, Ex. A, § 7.02).
Club Owners Association, Inc.) to serve as a member of Plaintiff and to serve as the

property owners association for the “Single Family Tract” portion of Brier Creek.

(ECF No. 4 at 12, ¶ 9 & Ex. A, § 7.02 and § 10.03).

9. On 30 May 2000, an Amended and Restated Declaration of Covenants,

Conditions and Restrictions for Brier Creek Country Club Community (the

“BCCCOA Declaration”) was recorded, outlining Defendant’s rights and obligations

with respect to the Single Family Tract within Brier Creek. (ECF No. 4 at 13–14, ¶¶

16–18).

10. Among other things, the BCCCOA Declaration permits Defendant to

levy “special assessments ‘for capital improvements or unusual or emergency

matters[.]” (ECF No. 4, ¶ 19). Those assessments, however, may be used only in

limited ways, “including for the ‘improvement, use, operation, repair, replacement

and maintenance of the Common Area, Landscaped Rights-of-Way and all

improvements located therein or thereon’” and “‘payment of any assessments owed

by the Owners or by the Association pursuant to the” BCOA Declaration. (ECF No. 4

at 14, ¶¶ 20–21).

11. Defendant contends that Plaintiff has failed to comply with the BCOA

Declaration in that it (i) incorrectly calculated the assessments to be paid by

Defendant under that Declaration and (ii) has ignored the assessment limitations,

which has resulted in Defendant paying assessments in excess of what it was

obligated to pay. (ECF No. 4 at 14–15, ¶¶ 23–24).
12. Specifically, Plaintiff hosts an annual Fourth of July fireworks show

that draws crowds to Brier Creek and generates “profits,” “visibility,” and “business

and financial opportunities” for Plaintiff. However, Plaintiff requires Defendant to

pay all expenses for the fireworks show and does not share profits with Defendant.

(ECF No. 4 at 15, ¶¶ 25–26).

13. Defendant does not allege that Plaintiff improperly pays those amounts

itself, nor does Defendant outline how Plaintiff “requires” it to pay these amounts.

Defendant also does not tie the fireworks show to specific provisions of either the

BCOA or BCCCOA Declarations.

14. Ultimately, Defendant conclusorily asserts that Defendant has been

required (by undisclosed means) to pay for a fireworks show, that it has not been

permitted to share in the benefits tangentially occurring as a result of the show, and

that Defendant is dissatisfied as a result.

15. On 26 September 2025, Defendant filed its counterclaims in this action,

asserting putative causes of action for (i) a temporary restraining order, preliminary

and permanent injunction, (ii) declaratory judgment, (iii) breach of covenant, (iv)

unjust enrichment, (v) breach of fiduciary duty, and (vi) unfair and deceptive trade

practices in violation of Chapter 75 of the North Carolina General Statutes. The

gravamen of Defendant’s causes of action is that Plaintiff has violated its obligations

under the BCOA Declaration with respect to amounts that it has billed Defendant.

(See generally ECF No. 4).
16. Plaintiff moved under Rule 12(b)(6) to dismiss Defendant’s purported

counterclaims for a preliminary injunction, unjust enrichment, breach of fiduciary

duty, and violations of Chapter 75. (ECF No. 11).

17. Defendant failed to serve a response in opposition to the motion, and the

time to do so has expired. As a result, “the motion will be considered and decided as

an uncontested motion.” BCR 7.6; cf. Thompson v. Bass, 261 N.C. App. 285, 292 (2018)

(deeming issue abandoned on appeal where appellant “failed to submit any

meaningful argument” in support of his positions).

18. With no response briefing served within the time permitted, the motion

is ripe for resolution, and, in the exercise of judicial discretion, the Court resolves the

motion without a hearing as permitted under Rule 7.4 of the Business Court Rules.

II. ANALYSIS

19. When considering a Rule 12(b)(6) motion, the Court must determine

“whether the allegations of the [counterclaim], if treated as true, are sufficient to

state a claim upon which relief can be granted under some legal theory.” Corwin v.

Brit. Am. Tobacco PLC, 371 N.C. 605, 615 (2018) (citation omitted); Forsyth Mem’l

Hosp., Inc. v. Armstrong World Indus., 336 N.C. 438, 442 (1994) (quoting Lynn v.

Overlook Dev., 328 N.C. 689, 692 (1991)).

20. Thus, the Court treats the well-pleaded factual allegations as true and

views them “in the light most favorable to the non-moving party.” Sykes v. Health

Network Sols., Inc., 372 N.C. 326, 332 (2019) (citation omitted); Christenbury Eye

Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5 (2017).
21. Dismissal is proper if “(1) the [counterclaim] on its face reveals that no

law supports the [] claim; (2) the [counterclaim] on its face reveals the absence of facts

sufficient to make a good claim; or (3) the [counterclaim] discloses some fact that

necessarily defeats the [] claim.” Corwin, 371 N.C. at 615 (citations omitted).

22. The Court addresses each of Defendant’s counterclaims in turn.

A. Injunctive Relief

23. Defendant’s “First Claim for Relief” for injunctive relief fails as a matter

of law.

24. Specifically, “[i]nasmuch as [Defendant] purports to assert ‘claims’ for

injunctive relief, . . . such ‘claims’ inherently fail as a matter of law because, as this

Court and others have repeatedly recognized, they are not independent causes of

action or claims.” Evergreen Builder Sols., LLC v. Taylor, 2025 NCBC LEXIS 174, at

*32 (N.C. Super. Ct. Dec. 29, 2025) (citations omitted); see also Revelle v. Chamblee,

168 N.C. App. 227, 230 (2005) (“A preliminary injunction is an ancillary remedy, not

an independent cause of action.”); Brewster v. Powell Bail Bonding, Inc., 2018 NCBC

LEXIS 76, at *18 (N.C. Super. Ct. July 26, 2018) (“[I]njunctions are remedies, not

independent causes of action.” (citation omitted)).

25. Accordingly, the Court GRANTS Plaintiff’s motion to dismiss as to the

purported cause of action for injunctive relief, which the Court DISMISSES without

prejudice to Defendant’s ability to renew its request for such remedies at a later

stage of this action if appropriate.
B. Unjust Enrichment

26. Similarly, Defendant’s cause of action for unjust enrichment is also

properly dismissed without prejudice.

27. “In North Carolina, to recover on a claim of unjust enrichment, Plaintiff

must prove: (1) that it conferred a benefit on another party; (2) that the other party

consciously accepted the benefit; and (3) that the benefit was not conferred

gratuitously or by an interference in the affairs of the other party.” Islet Scis., Inc. v.

Brighthaven Ventures, LLC, 2017 NCBC LEXIS 4, at *16 (N.C. Super. Ct. Jan. 12,

2017) (citing Se. Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 330 (2002)).

28. “The general rule of unjust enrichment is that where services are

rendered and expenditures made by one party to or for the benefit of another, without

an express contract to pay, the law will imply a promise to pay a fair compensation

therefor.” Atl. Coast Line R.R. Co. v. State Highway Comm’n, 268 N.C. 92, 95–96

(1966). However, “[i]f there is a contract between the parties[,] the contract governs

the claim and the law will not imply a contract.” Booe v. Shadrick, 322 N.C. 567, 570

(1988).

29. Here, Plaintiff argues that the unjust enrichment cause of action fails

because (i) an express contract exists, (ii) the pleading at issue fails to comply with

applicable notice pleading standards, and (iii) the cause of action is barred by the

applicable statute of limitations. (ECF No. 12 at 3–6).

30. However, Defendant expressly asserts that its unjust enrichment cause

of action is pleaded in the alternative to its express breach of contract cause of action.
(ECF No. 4 at 19, ¶ 56). Thus, the existence of a breach of contract cause of action

does not necessarily bar the alternative unjust enrichment cause of action. Cosma v.

Fit Kitchen, LLC, 2022 NCBC LEXIS 77, at *3 (N.C. Super. Ct. July 18, 2022)

(denying motion to dismiss unjust enrichment cause of action asserted in the

alternative to an express breach of contract cause of action); Rossabi Reardon Klein

Spivey, PLLC v. Greater Greensboro Entm’t Group, LLC 2020 NCBC LEXIS 62, at

*18 (N.C. Super. Ct. May 8, 2020) (“Notwithstanding that an express contract

precludes an implied contract concerning the same matter, it is also well established

under North Carolina law that a party may plead claims in the alternative.”). 3

31. Ultimately, however, Defendant pleads nothing more than conclusory

allegations in support of its cause of action. These conclusory allegations fail to

include factual allegations against Plaintiff supporting this cause of action, fail to

provide notice under applicable notice pleading standards, and otherwise fail to state

a claim upon which relief can be granted. See N.C. R. Civ. P. 8(a) (requiring a “short

and plain statement of the claim sufficiently particular to give the court and the

parties notice of the transactions, occurrences, or series of transactions or

occurrences, intended to be proved showing that the pleader is entitled to relief”);

N.C. R. Civ. P. 12(b)(6).

3 While Plaintiff argues that the parties’ other pleadings, such as Plaintiff’s complaint and

Defendant’s answer, admit the existence of an express contract, (ECF No. 12 at 3), this matter
is currently before the Court on a Rule 12(b)(6) motion to dismiss. Thus, the Court expressly
does not consider the purported admissions or allegations contained in other pleadings at this
stage of the case. Hillsboro Partners, LLC v. City of Fayetteville, 226 N.C. App. 30, 32–33
(2013) (“As a general proposition, a trial court’s consideration of a motion brought under Rule
12(b)(6) is limited to examining the legal sufficiency of the allegations contained within the
four corners of the complaint” or counterclaim, as applicable.).
32. Specifically, in its limited factual allegations, Defendant alleges only

that Plaintiff “has required [Defendant] to pay for all expenses associated with the

Fireworks Show” and has not shared profits. (ECF No. 4 at 15, ¶ 26). Though it alleges

that Plaintiff tangentially benefited from an influx of people to Brier Creek brought

on by the fireworks show, (ECF No. 4 at 15, ¶ 25), Defendant does not allege that it

paid the expenses to, for, or on behalf of Plaintiff, nor does it identify any other benefit

that it directly conveyed to or bestowed upon Plaintiff. (ECF No. 4 at 15, ¶ 26). 4

33. There is also no non-conclusory, factual allegation that Plaintiff

consciously accepted any benefits from Plaintiff.

34. To the extent that Defendant separately and vaguely asserts later in its

counterclaims that Plaintiff benefited “through the payment of [unspecified] monies”

and that Plaintiff “accepted and kept the benefit of the [unspecified] funds,” there is

no indication (or reasonable inference to be made) that these “monies” or “funds”

allegedly paid to Plaintiff have any relationship to a fireworks show or that they are

otherwise the same “expenses” that Defendant was allegedly required to pay to

unidentified parties. (ECF No. 4 at 19–20, ¶¶ 55–65).

35. Further, though Defendant alleges that Plaintiff knew that Defendant

“expected to be compensated through the provision of goods and services,” the

pleading lacks any facts supporting this conclusory statement. (ECF No. 4 at 20,

4 For example, there is no allegation that Plaintiff was obligated to pay for fireworks shows

and that Plaintiff required Defendant to do so in Plaintiff’s stead. Indeed, Defendant asserts
that Plaintiff’s position is that Defendant’s “assessments are in arrears.” Thus, it is unclear
from the pleading whether Defendant ever actually paid any of the amounts, as opposed to
merely being “required” (i.e., contractually obligated) to do so. (ECF No. 4 at 15, ¶ 28).
¶ 61). Indeed, the only allegation concerning discussions between the parties is

Defendant’s assertion that, in 2022 (apparently after years of annual fireworks

shows), it began a “conversation calculated to correct Plaintiff’s many actions in

violation of the BCOA Declaration.” (ECF No. 4 at 15, ¶ 27). There are no allegations

that the conversation involved a request for compensation or that Defendant ever

informed Plaintiff of its desire to share in the purported profits or benefits generated

by the fireworks show. Nor are there factual allegations that permit an inference that

Plaintiff had any reason to know of Defendant’s purported desire to share in profits.

36. Defendant’s conclusory allegations fail to state a claim for unjust

enrichment, so the Court need not, and does not, address Plaintiff’s statute of

limitations argument.

37. Accordingly, the Court GRANTS Plaintiff’s motion to dismiss as to the

unjust enrichment cause of action, which the Court DISMISSES without

prejudice. 5

C. Breach of Fiduciary Duty

38. Next, Plaintiff moves to dismiss Defendant’s cause of action for breach

of fiduciary duty. Plaintiff argues that Defendant fails to allege facts showing that

there is a fiduciary relationship between the parties and that Defendant’s allegations

are purely conclusory. (ECF No. 4 at 21, ¶¶ 67–69). The Court agrees.

5 “The decision to dismiss an action with or without prejudice is in the discretion of the trial

court . . . .” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013) (citation omitted). With
respect to each of the causes of action addressed by this Order and Opinion, the Court has
carefully considered whether dismissal with or without prejudice is appropriate.
39. “For a breach of fiduciary duty to exist, there must first be a fiduciary

relationship between the parties.” Chisum v. Campagna, 376 N.C. 680, 706 (2021).

40. Defendant asserts that Plaintiff “and its Board of Directors owe and

occupy [sic] a fiduciary duty” to Defendant and Defendant’s members and that

Plaintiff has a “fiduciary duty” to properly apply, calculate, and levy assessments

against Defendant. (ECF No. 4 at 21, ¶¶ 69–71).

41. Defendant has pleaded no facts, however, to indicate the existence of a

fiduciary relationship between the parties. In fact, beyond conclusory allegations that

Plaintiff has “required” Defendant to pay for an fireworks show, there are hardly any

allegations regarding the parties’ relationship.

42. For example, even if Defendant is a member of Plaintiff, as the BCCCOA

Declaration suggests, a corporation does not owe a fiduciary duty to its shareholders.

DS & T II, Inc. v. D & E Tax & Account., Inc., 2021 NCBC LEXIS 87, at *15 n.5 (N.C.

Super. Ct. Oct. 4, 2021); Buttonwood Tree Valve Partners L.P. v. R.L. Polk & Co., 2014

Del. Ch. LEXIS 141, at *1 (Del. Ch. 7 Aug. 2014) (“A corporation owes no fiduciary

duties to its owners, the stockholders[.]”); see also Green v. Freeman, 367 N.C. 136,

142 (2013) (“The general rule is that ‘[s]hareholders, creditors or guarantors of

corporations generally may not bring individual actions to recover what they consider

their share of the damages suffered by the corporation.’” (citation omitted)).

43. Further, the only conduct to which Defendant points in its counterclaim

for the alleged breaches of a fiduciary duty are conclusory allegations that Plaintiff

has improperly levied assessments against Plaintiff contrary to the BCOA and
BCCCOA Declarations and declined to engage in discussions with Defendant––

neither of which supports the existence of a fiduciary duty or the breach of any such

purported duty, as opposed to a potential breach of contract via the Declarations.

44. Construing the allegations in the light most favorable to Defendant,

Defendant fails to plead any facts supporting a basis for the existence of a fiduciary

duty or a breach of a fiduciary duty.

45. Accordingly, the Court GRANTS Plaintiff’s motion to dismiss as to the

breach of fiduciary duty cause of action, which the Court DISMISSES with

prejudice.

D. Chapter 75

46. Finally, Defendant asserts that Plaintiff has violated Chapter 75 and

committed unfair or deceptive trade practices based on

its longstanding practice of levying incorrectly-calculated and
excessive assessments, requiring [Defendant] to fully fund the
annual Fireworks Show, failing and refusing to allow [Defendant]
to share in the profits generated thereby, failing and refusing to
discuss the matters alleged herein with the Counter-claimant
[Defendant], and persisting in its practice of demanding payment
of assessments to which it knows, or reasonably should know, it
is not entitled.

(ECF No. 4 at 23, ¶ 75).

47. Defendant’s allegations are insufficient to withstand Plaintiff’s motion.

48. To state a claim for relief under Chapter 75 of the North Carolina

General Statutes for alleged unfair or deceptive conduct, a party “must show: (1) [the

opposing party] committed an unfair or deceptive act or practice; (2) in or affecting
commerce; and (3) that [the claimant] was injured thereby.” McKinnon v. CV Indus.,

213 N.C. App. 328, 340 (2011) (citations omitted).

49. “It is well recognized, however, that actions for unfair or deceptive trade

practices are distinct from actions for breach of contract, and that a mere breach of

contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action

under N.C.G.S. § 75–1.1.” Branch Banking & Tr. Co. v. Thompson, 107 N.C. App. 53,

62 (1992) (internal citations omitted).

50. Instead, “‘[s]ubstantial aggravating circumstances’ must attend the

breach in order to recover under the Act. A violation of Chapter 75 is unlikely to occur

during the course of contractual performance, as these types of claims are best

resolved by simply determining whether the parties properly fulfilled their

contractual duties.” Mitchell v. Linville, 148 N.C. App. 71, 75 (2001) (internal citation

omitted).

51. Moreover, “[t]o be in or affecting commerce, the [claimant] must prove

the [opposing party’s] act was related to its ‘business activities,’ or its ‘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.’” White v.

Thompson, 364 N.C. 47, 48 (2010) (internal quotations omitted).

52. Defendant fails to plead facts suggesting any conduct by Plaintiff rising

to the level of unfair or deceptive conduct.

53. Even then, the connections are tenuous. Defendant points to no factual

basis to suggest that Plaintiff was legally obligated to “discuss the matters” at issue
with Defendant or to permit Defendant “to share in the profits” from the fireworks

show. (ECF No. 4 at 23, ¶ 75). Defendant also alleges no aggravating circumstances

or other facts that might support a Chapter 75 claim. (ECF No. 4 at 23, ¶ 75).

54. Construing the few well-pleaded, non-conclusory allegations of the

counterclaims in the light most favorable to Defendant, the Court concludes that

Defendant has failed to state a claim under Chapter 75.

55. Therefore, the Court GRANTS the motion to dismiss the Chapter 75

cause of action, which the Court DISMISSES with prejudice.

III. CONCLUSION

Accordingly, the Court GRANTS Plaintiff’s motion to dismiss as set forth

above.

SO ORDERED, this 27th day of April 2026.

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