Orange Peel Events, LLC v. Ninja Brewing, Inc.

Orange Peel Events, LLC v. Ninja Brewing, Inc., 2025 NCBC 39.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
BUNCOMBE COUNTY 25CV000040-100

ORANGE PEEL EVENTS, LLC, a
North Carolina limited liability
company; and PUBLIC INTEREST
PROJECTS, INC., a North Carolina
corporation, in its corporate capacity,

Plaintiffs,
ORDER AND OPINION
v.
ON MOTIONS TO DISMISS
NINJA BREWING, INC., f/k/a
ASHEVILLE PIZZA & BREWING
COMPANY, a North Carolina
Corporation; and ASHEVILLE
BREWING PROPERTIES, LLC, a
North Carolina limited liability
company,

Defendants.

1. This dispute concerns the management and operation of an outdoor

entertainment venue in western North Carolina. Each side has moved to dismiss

claims asserted by the other. For the following reasons, the Court GRANTS the

plaintiffs’ motion and GRANTS in part and DENIES in part the defendants’

motion.

Searson, Jones, Gottschalk & Cash, PLLC, by W. Scott Jones, Tikkun
A.S. Gottschalk, and Stephen L. Cash, for Plaintiffs Orange Peel Events,
LLC and Public Interest Projects, Inc.

Allen Stahl & Kilbourne, PLLC, by Christopher G. Lewis and Robert C.
Carpenter, for Defendants Ninja Brewing, Inc. f/k/a Asheville Pizza &
Brewing Co. and Asheville Brewing Properties, LLC.

Conrad, Judge.
I.
BACKGROUND

2. The following background is drawn from the allegations in the amended

complaint.

3. Orange Peel Events, LLC books and manages live music shows at a range

of outdoor venues in Asheville, North Carolina and the surrounding area. Its only

member is Public Interest Projects, Inc. (See Am. Compl. ¶¶ 8, 41, ECF No. 42.)

4. Ninja Brewing, Inc. operates a brewery and pizzeria in downtown Asheville.

A sister company, Asheville Brewing Properties, LLC, owns the pizzeria’s real estate.

Ninja and Asheville Brewing share common ownership. (See Am. Compl. ¶¶ 10, 13.)

5. The parties’ dealings go back to 2019, when the lot next to Ninja’s pizzeria

went up for sale. Ninja’s owners wanted to buy the lot but lacked the means, so they

approached Orange Peel with a business proposal. The basic idea was to acquire the

lot jointly and turn it into a year-round, outdoor entertainment venue, with Orange

Peel to put on live music shows in the warm season and Ninja to operate an outdoor

movie theater in cooler months. To go with the entertainment, Ninja would also run

a biergarten-style pizza restaurant. (See Am. Compl. ¶¶ 13, 42, 43, 45.)

6. Orange Peel was receptive to this idea. It alleges that the parties agreed “to

form a joint venture” to be called Rabbit Rabbit. The original concept called for the

formation of two new LLCs—one to buy and own the land and another to manage the

entertainment venue. Public Interest and Asheville Brewing were to split

membership in the land-owning LLC equally, and Orange Peel and Ninja were to

split membership in the venue-management LLC equally. But a lawyer representing
Ninja and Asheville Brewing allegedly advised that forming a venue-management

LLC would complicate alcohol sales under governing laws. His solution was to have

the land-owning LLC lease the land to Ninja and to have Ninja and Orange Peel

manage the venue directly under a separate contract. (See Am. Compl. ¶¶ 47, 48, 50,

54, 64.)

7. And that is what the parties did. They first formed 75 Coxe Properties, LLC

to buy the land. Public Interest and Asheville Brewing became equal members and

managers of this new entity. Just a few months after buying the land, 75 Coxe

Properties leased it to Ninja for a term of ten years, and Ninja and Orange Peel signed

a management agreement for the leased property and the soon-to-be-built

entertainment venue. Later, there came one last contract, dubbed the Green Room

Lease, in which Ninja leased part of its adjacent property to Public Interest to be used

as hospitality rooms for performing artists. (See Am. Compl. ¶¶ 12, 71, 77.)

8. The management agreement is central to this dispute. That agreement (as

amended) identifies Ninja as the tenant with “control over all uses” of the property.

Ninja kept “primary responsibility for managing and staffing food and beverage

services, movies, televised events, small shows and special events and 3rd party

vendors” but delegated to Orange Peel “primary responsibility for managing and

staffing live music and comedy entertainment and large special events.” Several

provisions lay out how to calculate and apportion revenues and expenses for shows,

special events, and day-to-day operations. Both sides agreed that they were “not

partners or joint venturers with each other” but “recognize[d] their fiduciary duty to
act entirely in the best interest of the Parties’ joint project and not elevate individual

. . . self-interest above that duty.” And Ninja reserved the right to terminate the

agreement on 180-days’ notice and retain a replacement management company. (Am.

Compl. Ex. C §§ 1, 2, 4–6, 9, 17 [“Mgmt. Agrmt.”], ECF No. 42.3.)

9. Live shows at the Rabbit Rabbit venue began in 2021. As alleged, over the

next few years, Orange Peel’s shows were profitable while Ninja’s events flopped.

Signs of enmity began to surface near the end of 2023 when Public Interest sent a

notice of deadlock concerning the management of 75 Coxe Properties. Convinced that

Ninja and Asheville Brewing were in financial distress, Public Interest advocated

shoring up 75 Coxe Properties’ reserves and halting cash distributions. Asheville

Brewing downplayed its financial difficulties, denied any deadlock, and agreed to

delay the next distribution until at least April 2024. Just a few weeks later, though,

Asheville Brewing made a distribution without Public Interest’s consent. Asheville

Brewing initially refused Public Interest’s demand to return the money but

eventually did so about nine months later. Various disputes about how to account for

expenses and profits emerged during this period as well. (See, e.g., Am. Compl. ¶¶ 84,

86, 89, 91, 92, 94, 95, 101–03, 105, 107, 109, 113, 128, 130, 132, 133.)

10. Push came to shove in the summer of 2024. Ninja contacted Orange Peel’s

competitors about handling management of the venue’s live shows and, soon after,

gave notice that it intended to terminate the management agreement at the end of

the year. Since then, Ninja has retained a new manager, rebranded the Rabbit Rabbit
venue as Asheville Yards, and rebooked shows that Orange Peel had booked and

planned to manage in 2025. (See, e.g., Am. Compl. ¶¶ 118, 123, 125, 137.)

11. In this case, Orange Peel and Public Interest assert that they have been

unfairly ousted from the Rabbit Rabbit venue. They have advanced eight direct

claims and two derivative claims on behalf of 75 Coxe Properties, alleging that Ninja

and Asheville Brewing breached their fiduciary duties and the parties’ contracts in

sundry ways. They seek not only damages but also declaratory relief and punitive

damages. Ninja and Asheville Brewing have counterclaimed, alleging that they have

held true to their contractual duties but that Orange Peel and Public Interest have

not.

12. Both sides have filed motions to dismiss. (ECF Nos. 46, 48.) Ninja and

Asheville Brewing seek to dismiss six of the ten claims in the amended complaint. 1

Orange Peel and Public Interest seek to dismiss just one counterclaim. Both motions

have been fully briefed, and the Court held a hearing on 15 July 2025. The motions

are ripe.

II.
DEFENDANTS’ MOTION TO DISMISS

13. A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of the

complaint.” Isenhour v. Hutto, 350 N.C. 601, 604 (1999) (citation and quotation marks

1 Earlier, Ninja and Asheville Brewing had moved to dismiss most claims in the original

complaint. (See ECF No. 21.) Following a hearing on that motion, however, both sides agreed
to amend their pleadings with the Court’s blessing, thus mooting the motion to dismiss. In
their second motion, Ninja and Asheville Brewing raise more or less the same arguments as
they raised before. To simplify matters, the Court allowed the parties to incorporate by
reference their earlier briefing and supplement their arguments as appropriate.
omitted). The motion should be granted only 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. Brit. Am. Tobacco

PLC, 371 N.C. 605, 615 (2018) (citation and quotation marks omitted).

14. In deciding the motion, the Court must treat the well-pleaded allegations of

the complaint as true and view the facts and permissible inferences “in the light most

favorable to” the nonmoving party. Sykes v. Health Network Sols., Inc., 372 N.C. 326,

332 (2019) (citation and quotation marks omitted). Exhibits to the complaint are

deemed to be part of it and may also be considered, see Krawiec v. Manly, 370 N.C.

602, 606 (2018), but the Court need not accept as true any “conclusions of law or

unwarranted deductions of fact,” Wray v. City of Greensboro, 370 N.C. 41, 46 (2017)

(citation and quotation marks omitted).

A. Fiduciary Claims

15. In this section, the Court considers the first, fourth, and sixth claims in the

amended complaint. These include Orange Peel’s claim for breach of fiduciary duty,

Public Interest’s claim for breach of fiduciary duty, and their joint claim for

misappropriation of corporate opportunity. Ninja and Asheville Brewing challenge

this group of claims on the same ground: that the amended complaint does not

adequately allege the existence of a fiduciary relationship among the parties.

16. “For a breach of fiduciary duty to exist, there must first be a fiduciary

relationship between the parties.” Dalton v. Camp, 353 N.C. 647, 651 (2001). The
same is true for a claim of misappropriation of corporate opportunity, which “is a

species of the duty of a fiduciary to act with undivided loyalty.” Meiselman v.

Meiselman, 309 N.C. 279, 307 (1983) (citation and quotation marks omitted). 2

17. Orange Peel and Public Interest argue that a fiduciary relationship exists

because they formed a joint venture with Ninja and Asheville Brewing to acquire,

develop, and operate the Rabbit Rabbit venue. Even taking the amended complaint’s

allegations as true, though, they do not show that the parties entered into a joint

venture.

18. To plead a joint venture, a plaintiff must allege “an agreement, express or

implied, to carry out a single business venture with joint sharing of profits” as well

as “an equal right of control of the means employed to carry out the venture.” Sykes,

at 340–41 (cleaned up). Each joint venturer must have “a right in some measure to

direct the conduct of the other through a necessary fiduciary relationship. Stated

differently, each joint venturer must stand in the relation of principal, as well as

agent, as to each of the other coventurers.” Cheape v. Chapel Hill, 320 N.C. 549, 562

(1987) (cleaned up) (superseded by statute on other grounds).

19. This principal–agent relationship is missing here. Consider, first, the

management agreement. Over and over, it stresses that Ninja and Orange Peel are

independent. Each “shall independently manage and be in charge of all functions

2 It is arguable whether either Orange Peel or Public Interest may assert a claim for
misappropriation of corporate opportunity. As our Supreme Court has explained, “the
corporate opportunity doctrine provides that a corporate fiduciary may not appropriate to
himself an opportunity that rightfully belongs to his corporation.” Meiselman, 309 N.C. at
307 (emphasis added) (citation and quotation marks omitted). Neither side addresses this
point, however.
within their respective areas of responsibility.” (Mgmt. Agrmt. § 6.) And again, “[t]he

Parties, at all times, shall be independent of each other,” maintaining “autonomy in

all payroll and employment-related duties and rights.” (Mgmt. Agrmt. § 8.) Indeed,

the agreement expressly disclaims any joint venture: “The parties to this Agreement

are not partners or joint venturers with each other and nothing in this Agreement

shall be construed so as to make them partners or joint venture[r]s . . . .” (Mgmt.

Agrmt. § 17.d.)

20. Likewise, Asheville Brewing and Public Interest chose to form an LLC, not

an unincorporated joint venture, to buy and own the land underlying the Rabbit

Rabbit venue. Neither is the agent of the other under 75 Coxe Properties’ operating

agreement or the statutes governing LLCs. See Cheape, 320 N.C. at 561 (defining

“joint venture” to mean an enterprise in which “profit is jointly sought, without any

actual partnership or corporate designation” (citation and quotation marks omitted));

Strategic Mgmt. Decisions, LLC v. Sales Performance Int’l, LLC, 2017 NCBC LEXIS

69, at *14–15 (N.C. Super. Ct. Aug. 7, 2017) (“Plaintiff and Sales Performance chose

to organize their joint enterprise as an LLC, and it is therefore subject to the laws

governing LLCs.”). And not even Orange Peel and Public Interest suggest that the

parties’ lease agreements evince an agency relationship, as opposed to a common

landlord-tenant relationship.

21. To be sure, the amended complaint alleges in conclusory fashion that the

parties formed a joint venture and agreed to share joint control. (See, e.g., Am. Compl.

¶¶ 48, 65, 152.) But the Court need not accept conclusory allegations. Nor must it
accept “allegations that are contradicted by the documents attached, specifically

referred to, or incorporated by reference in the complaint.” Laster v. Francis, 199

N.C. App. 572, 577 (2009). Here, the agreements at issue refute the existence of a

joint venture. See Sykes, 372 N.C. at 341 (“Thus, on the face of their contracts with

HNS, plaintiffs agreed that no joint venture was formed via the parties’ contractual

relationship.”); Cheape, 320 N.C. at 562 (“Thus, the agreement fails to place the Town

and Fraser in the relation of principal, as well as agent, as to each other.” (cleaned

up)); Se. Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 328 (2002) (“Accordingly, there

is nothing in the agreement that establishes Chesson and SES as agents of the

individual defendants and BTU. Likewise, there is nothing that establishes

defendants as agents of plaintiffs.”).

22. As an alternative to their joint-venture theory, Orange Peel and Public

Interest argue that the management agreement creates a fiduciary relationship

between Ninja and Orange Peel. 3 They base this argument on the following language:

“each Party recognizes their fiduciary duty to act entirely in the best interest of the

Parties’ joint project and not elevate . . . individual Party self-interest above that

duty.” (Mgmt. Agrmt. § 17.e.) Two things leap off the page. First, this comes on the

heels of the language disclaiming any joint venture. Second, this does not say that

the parties owe a fiduciary duty to one another—only to their “joint project.” It would

be unreasonable to read these words in a way that either creates the very joint

3 As counsel acknowledged at the hearing, the management agreement does not concern

Asheville Brewing and Public Interest. Thus, even if the management agreement imposed a
limited fiduciary duty on Ninja, that would not support Public Interest’s claim for breach of
fiduciary duty or the claim for misappropriation of corporate opportunity.
venture that the parties disclaimed or imposes a duty obligating each contracting

party to act in the other’s best interest.

23. Accordingly, the Court grants the motion to dismiss Orange Peel’s claim for

breach of fiduciary duty, Public Interest’s claim for breach of fiduciary duty, and their

claim for misappropriation of corporate opportunity.

B. Breach of the Management Agreement

24. The second and third claims for relief are next. In these claims, Orange Peel

alleges that Ninja breached the management agreement by terminating it in bad

faith and seeks a declaratory judgment that the termination was invalid. As Ninja

correctly observes, though, the management agreement unambiguously allows either

party to terminate it without cause so long as adequate notice is given. (See Mgmt.

Agrmt. § 2.) Because Orange Peel does not allege or contend that Ninja failed to give

timely notice, it has not stated a claim for breach of the management agreement’s

termination clause.

25. In its opposition, Orange Peel argues that the parties’ right to terminate was

limited by their obligation, found elsewhere in the agreement, to act “in the

furtherance of the best interest of the Parties’ joint efforts and for the Parties’ mutual

benefit.” (Mgmt. Agrmt. § 17.e.) But that would negate the termination clause

altogether. It is, after all, hard to imagine a realistic scenario in which one side’s

decision to terminate the agreement would serve their mutual benefit. Ordinary

canons of construction forbid taking one contract clause out of context and employing

it to erase another. See, e.g., WakeMed v. Surgical Care Affiliates, LLC, 243 N.C.
App. 820, 824 (2015) (observing that, “if possible, every word and every provision is

to be given effect” (citation and quotation marks omitted)).

26. Orange Peel also contends that the management agreement bars Ninja from

negotiating with other management companies more than ninety days before

termination. It does not. Rather, it states that Orange Peel “shall have no rights

whatsoever to impede or prohibit” Ninja’s negotiations with others during that

ninety-day period. (Mgmt. Agrmt. § 2.) Nothing in that language restrains Ninja

from beginning negotiations earlier.

27. As a result, the amended complaint does not state a valid claim for breach

based on Ninja’s termination of the management agreement or negotiation with

competing management companies. The parallel claim for declaratory relief likewise

fails. See VanFleet v. City of Hickory, 2020 NCBC LEXIS 40, at *10 (N.C. Super. Ct.

Mar. 30, 2020) (dismissing duplicative claim for declaratory judgment along with

underlying claim for breach of contract).

28. This does not dispose of all of the second claim for relief, however. Orange

Peel goes on to allege in paragraphs 165(c) through (f) that Ninja undercounted its

revenue, overcounted its reimbursements, refused to approve Orange Peel’s

reimbursements, and failed to pay for green room upfits. Ninja seeks to dismiss this

portion of the claim on the ground that it duplicates Orange Peel’s fifth claim for

relief, which is also styled as a claim for breach of the management agreement.

Having reviewed the two sets of allegations, they do not appear to be cumulative, as
Ninja contends. Accordingly, the Court denies the motion to dismiss the second claim

for relief as to the allegations in paragraphs 165(c) through (f).

C. Declaratory Judgment

29. Ninja and Asheville Brewing also challenge the seventh claim for relief.

This claim concerns a cash distribution that Asheville Brewing allegedly made from

75 Coxe Properties’ accounts without Public Interest’s consent in March 2024. Public

Interest claims that the distribution wasn’t proper and seeks a declaration that 75

Coxe Properties’ operating agreement permits cash distributions only with the

consent of a majority in interest of the company’s membership.

30. A complaint sufficiently states a claim for declaratory judgment if it “alleges

the existence of a real controversy arising out of the parties’ opposing contentions and

respective legal rights under a . . . contract.” Morris v. Plyler Paper Stock Co., 89 N.C.

App. 555, 557 (1988). Dismissal is appropriate only “when the complaint does not

allege an actual, genuine existing controversy.” N.C. Consumers Power, Inc. v. Duke

Power Co., 285 N.C. 434, 439 (1974).

31. Asheville Brewing insists that there is no actual controversy. The Court

disagrees. Asheville Brewing did not, as it contends, concur with Public Interest’s

interpretation in the parties’ prelitigation correspondence. At most, Asheville

Brewing agreed to delay any distribution until April 2024, without conceding that it

had no right to make a distribution afterward. (See Am. Compl. Ex. F, ECF No. 42.6.)

And, of course, Asheville Brewing went on to make a distribution without Public

Interest’s consent just a few weeks later, reneging on its promise to hold off until
April and removing any doubt about the parties’ opposing stances. True, Asheville

Brewing returned the distribution nine months later. But that was not a

reconciliation. Asheville Brewing hasn’t admitted that it did anything wrong. And

in fact, it has asserted its own counterclaim for declaratory judgment, seeking a

declaration that Public Interest “is required to consent to” a distribution. (Am.

Countercl. ¶ 90, ECF No. 43.)

32. The Court denies the motion to dismiss Public Interest’s claim for

declaratory judgment.

D. Punitive Damages

33. Ninja and Asheville Brewing also seek to dismiss the amended complaint’s

demand for punitive damages. This issue is premature. The derivative claim for

breach of fiduciary duty (which the motion to dismiss does not address) could support

punitive damages, if successful. The Court therefore denies the motion to dismiss the

demand for punitive damages.

III.
PLAINTIFFS’ MOTION TO DISMISS

34. Little needs to be said about the plaintiffs’ motion to dismiss. All that is at

issue is Asheville Brewing’s counterclaim for breach of fiduciary duty against Public

Interest. Having prevailed on its own motion to dismiss the claims for breach of

fiduciary duty against it, Asheville Brewing agrees that this counterclaim ought to

be dismissed as well. Accordingly, the Court grants the plaintiffs’ motion to dismiss.
IV.
CONCLUSION

35. For these reasons, the Court GRANTS in part and DENIES in part the

defendants’ motion to dismiss. The Court DISMISSES with prejudice the first,

fourth, and sixth claims for relief in the amended complaint. The Court DISMISSES

without prejudice the second and third claims for relief in the amended complaint,

excluding the portions of the second claim for relief that appear in paragraph 165(c)–

(f). The Court DENIES the motion in all other respects.

36. In addition, the Court GRANTS the plaintiffs’ motion to dismiss and

DISMISSES with prejudice the seventh cause of action in the amended

counterclaims.

SO ORDERED, this the 30th day of July, 2025.

/s/ Adam M. Conrad
Adam M. Conrad
Special Superior Court Judge
for Complex Business Cases