WOODCOCK v. CUMBERLAND CNTY. HOSP. SYS., INC., 2023 NCBC 72

STATE OF NORTH CAROLINA
GUILFORD COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 5216
MICHAEL G. WOODCOCK,
Derivatively on behalf of Fayetteville
Ambulatory Surgery Center Limited
Partnership,
Plaintiff,
v.
CUMBERLAND COUNTY
HOSPITAL SYSTEM, INC., and
CAPE FEAR VALLEY
AMBULATORY SURGERY
CENTER, LLC,
Defendants.
v.
FAYETTEVILLE AMBULATORY
SURGERY CENTER LIMITED
PARTNERSHIP,
Nominal
Defendant.
ORDER AND OPINION ON CROSS-
MOTIONS FOR SUMMARY
JUDGMENT AND DEFENDANTS’
AMENDED MOTION TO STRIKE
[PUBLIC]1
THIS MATTER comes before the Court on Plaintiff Michael G. Woodcock’s
Motion for Summary Judgment Derivatively on Behalf of FASC Against Cumberland
County Hospital System, Inc. (ECF No. 176), Defendants’ Motion for Summary
Judgment (ECF No. 171), and Defendants’ Amended Motion to Strike (ECF No. 202)
(collectively, the “Motions”).
1 Recognizing that this Order and Opinion cites and discusses the subject matter of
documents that the Court has allowed to remain filed under seal in this action, the Court
elected to file this Order and Opinion under seal on 18 October 2023. 	The Court then
permitted the parties an opportunity to propose redactions to the public version of this
document. The parties did not propose any redactions. Accordingly, the Court now files the
unredacted, public version of this Order and Opinion.
Woodcock v. Cumberland Cnty. Hosp. Sys., Inc., 2023 NCBC 72.

THE COURT, having considered the Motions, the briefs of the parties, the
arguments of counsel, the applicable law, and all appropriate matters of record,
CONCLUDES that Woodcock’s Motion for Summary Judgment should be DENIED,
Defendants’ Motion for Summary Judgment should be GRANTED, and Defendants’
Amended Motion to Strike should be DENIED as moot.
Douglas S. Harris for Plaintiff Michael G. Woodcock.
K&L Gates LLP by Marla T. Reschly, Susan K. Hackney, and Daniel D.
McClurg for Defendants Cumberland County Hospital System, Inc. and
Cape Fear Valley Ambulatory Surgery Center, LLC.
Davis, Judge.
INTRODUCTION
1. 	This 	action 	involves 	a 	limited 	partnership 	dispute 	relating 	to
Fayetteville 	Ambulatory 	Surgery 	Center 	Limited 	Partnership 	(“FASC”), 	which
operates an ambulatory surgery center in Cumberland County. 	In a nutshell, the
core issue in this case is whether two related transactions occurring on 1 April 2019,
in which one of FASC’s Limited Partners divested itself of its Limited Partner Units
(“LP Units”) and then purchased 100% of the equity of the General Partner, violated
FASC’s limited partnership agreement.
FACTUAL AND PROCEDURAL BACKGROUND
2. 	“The Court does not make findings of fact on motions for summary
judgment; 	rather, 	the 	Court 	summarizes 	material 	facts 	it 	considers 	to 	be
uncontested.” 	McGuire v. Lord Corp., 2021 NCBC LEXIS 4, at **1–2 (N.C. Super.
Ct. Jan. 19, 2021) (cleaned up).

3. 	FASC 	was 	formed 	in 	November 	1991 	as 	a 	limited 	partnership.
(Weatherly Aff. ¶ 7, ECF No. 173.1.) 	Since its formation, FASC’s General Partner
has been an entity now known as Cape Fear Valley Ambulatory Surgery Center, LLC
(“CFVASC”).2 	(Weatherly Aff. ¶¶ 8–9.) 	FASC operates a freestanding ambulatory
surgical center (“ASC”). (Lowe Aff. ¶ 5, ECF No. 173.2.)
4. 	Although FASC’s limited partnership agreement has been amended
several times, the version of the agreement relevant to this case is dated 1 October
1995 and entitled Second Amended and Restated Limited Partnership Agreement
(“LPA”). (LPA, at 1, 6–7, ECF No. 3.2; Weatherly Aff. ¶ 10.)
5. 	At the time the 1995 LPA was executed, FASC was comprised of
CFVASC as the General Partner along with twelve Limited Partners. 	(LPA, at
Sched. A.) Those twelve limited partners included CFVASC3, Defendant Cumberland
County Hospital System, Inc. (“CCHS”), Village Ambulatory Surgery Associates, Inc.
(“VASA”), and Woodcock.4 (LPA, at Sched. A.)
2 Until 17 April 2022, CFVASC was known as NSC Fayetteville, Inc. NSC Fayetteville, Inc.
was a wholly owned subsidiary of a company called National Surgery Centers, LLC (“NSC”),
which, in turn, was a wholly owned subsidiary of Surgical Care Affiliates, LLC (“SCA”).
(Compl. Ex. 3, ECF No. 3.4; Equity Purch. Agrmt. (“E.P.A.”), at 1, ECF No. 81.2 (sealed).)
However, for clarity, throughout this opinion the Court will refer to FASC’s General Partner
as CFVASC.
3 In addition to serving as FASC’s General Partner, CFVASC also owned LP Units. (LPA, at
Sched. A.)
4 The twelve limited partners also included George Demetri, Carol Wadon, and Camille
Wahbeh, who were originally plaintiffs in this action until voluntarily dismissing their
claims. (LPA, at Sched. A; Wadon, Wahbeh, & Demetri Not. Vol. Dismiss., ECF No. 108.)

6. 	Woodcock is a physician in Cumberland County. (LPA, at Sched. A.) In
addition to owning FASC LP Units, Woodcock is also a shareholder of VASA. (Lowe
Aff. ¶¶ 7, 9; LPA, at Sched. A.)
7. 	CCHS is a North Carolina non-profit corporation that owns and operates
several hospitals in the Cumberland County region, including Cape Fear Valley
Medical Center and Highsmith-Rainey Hospital. (Weatherly Aff. ¶¶ 3, 5.)
8. 	VASA is a North Carolina corporation that is owned by a group of
physicians, including Woodcock. (Lowe Aff. ¶¶ 4, 7, 9.)
9. 	In or around 2018, NSC made known its intent to sell the equity in
CFVASC. 	(Weatherly Aff. ¶ 15.) 	Woodcock and CCHS proceeded to separately
engage in negotiations with NSC. 	(Weatherly Aff. ¶ 16.) 	CCHS was the ultimate
purchaser, thereby precipitating the 1 April 2019 transactions that form the basis for
this lawsuit. (E.P.A., at 1; Weatherly Aff. ¶17.)
10. 	Immediately prior to 1 April 2019, the ownership breakdown of FASC
General Partner and LP Units was as follows:
Name 	Unit Type 	# of Units 	% of total Units
CFVASC 	GP 	99.99999989 	43.7636761%
VASA 	LP 	59.19092791 	25.9041260%
CCHS 	LP 	50.43270183 	22.0712043%
Michael G. Woodcock, M.D. 	LP 	10.61910792 	4.6473120%
CFVASC 	LP 	5.667160573 	2.4801578%
Cumberland Anesthesia
Associates, P.A.
LP 	1.47910792 	0.6473120%
Carole M. Wadon, M.D. 	LP 	0.370331321 	0.1620706%
Camille J. Wahbeh, M.D. 	LP 	0.185165661 	0.0810353%
George J. Demetri Jr., D.P.M. 	LP 	0.185165661 	0.0810353%
Louis P. Clark, Jr., M.D. 	LP 	0.185165661 	0.0810353%
Michael S. Bryant, M.D. 	LP 	0.185165661 	0.0810353%

228.5 	100.0000000%
(Weatherly Aff. ¶ 19.)
11. 	On 1 April 2019, two distinct, but related, written agreements were
executed. First, CCHS conveyed all of its then-owned LP Units to CFVASC by means
of a document titled “Contribution Agreement” (Contrib. Agrmt., ECF 81.1 (sealed)),
which purported to divest CCHS of its Limited Partner status in FASC. (Weatherly
Aff. ¶ 20.) 	CFVASC, CCHS, and NSC were the signatories to the Contribution
Agreement. (Contrib. Agrmt., at 4–6.)
12. 	By virtue of the Contribution Agreement, CFVASC was to remain the
owner of the LP Units it already held and to also become the owner of the LP Units
that were being “contributed” by CCHS. 	(Contrib. Agrmt., at 1.) 	In addition, the
Contribution Agreement stated as follows:
Immediately 	following 	the 	consummation 	of 	the 	Conveyance 	in
accordance with the terms and conditions contained herein, [CCHS] has
agreed to purchase from [NSC], and [NSC] has agreed to sell to [CCHS],
all of the [CFVASC] Equity owned by [NSC] for the consideration and
on the terms and subject to the conditions set forth in that certain
Equity Purchase Agreement, by and among the Parties, dated as of the
Effective Date (the “Purchase Agreement”). 	Immediately following
the 	Conveyance 	and 	the 	consummation 	of 	the 	transactions
contemplated by the Purchase Agreement, [CCHS] will (a) directly own
all of the [CFVASC] Equity and (b) indirectly, through its ownership of
the [CFVASC] Equity, own (i) all of the General Partner Units of FASC
and (ii) 56.09986239 Limited Partner Units of FASC.
(Contrib. Agrmt., at 1 (emphasis in original).)

13. 	Immediately thereafter, a second document, the “Equity Purchase
Agreement” (the “E.P.A.”) was executed.5 	(E.P.A., ECF No. 81.2 (sealed).) 	The
signatories to the E.P.A. were, once again, CFVASC, CCHS, and NSC. 	(E.P.A., at
26–28.)
14. 	The E.P.A. stated that CCHS was purchasing from NSC 100% of the
equity of CFVASC. (E.P.A., at 1.) The E.P.A. further provided that, as a result, CCHS
would “(a) directly own one hundred percent (100%) of the Equity of [CFVASC] and
(b) indirectly, through its ownership of [CFVASC], own (i) one hundred percent
(100%) of the ‘General Partner Units’ of FASC and (ii) 43.6574805% of the ‘Limited
Partner Units’ of FASC[.]” (E.P.A., at 1.)
15. 	Following the completion of the April 2019 Transactions, the ownership
breakdown of FASC’s General Partner and LP Units was as follows:
Name 	Unit
Type
# of Units 	% 	of 	total
Units
% 	of 	LP
Units
CFVASC 	GP 	99.99999989 	43.76368% 	---[N/A]---
VASA 	LP 	59.19092791 	25.90413% 	46.06298%
CFVASC 	LP 	56.0998624 	24.55136% 	43.65748%
Michael G. Woodcock, M.D. 	LP 	10.61910792 	4.64731% 	8.26390%
Cumberland Anesthesia
Associates, P.A.
LP 	1.47910792 	0.64731% 	1.15106%
Carole M. Wadon, M.D. 	LP 	0.370331321 	0.16207% 	0.28820%
Camille J. Wahbeh, M.D. 	LP 	0.185165661 	0.08104% 	0.14410%
George J. Demetri Jr., D.P.M. 	LP 	0.185165661 	0.08104% 	0.14410%
Louis P. Clark, Jr., M.D. 	LP 	0.185165661 	0.08104% 	0.14410%
Michael S. Bryant, M.D. 	LP 	0.185165661 	0.08104% 	0.14410%
228.5 	100.00% 	100.000%
(Weatherly Aff. ¶ 24.)
5 Throughout this Opinion, the Court refers collectively to the Contribution Agreement and
E.P.A. as the “April 2019 Transactions.”

16. 	Accordingly, after the April 2019 Transactions, CCHS no longer directly
owned any FASC LP Units. (Weatherly Aff. ¶ 26.)6
17. 	In this lawsuit, Woodcock challenges the validity of the April 2019
Transactions and argues that CCHS “does not have lawful authority to own 100% of
the equity of [CFVASC] or to exercise any authority over [CFVASC].” (Compl. ¶ 146.)
18. 	Essentially, 	Woodcock 	contends 	that 	the 	April 	2019 	Transactions
breached various provisions of the LPA and that the methods utilized to effectuate
the transactions were purposefully crafted to sidestep certain restrictions contained
within the LPA. (Compl. ¶¶ 18–29.)
19. 	The same factual background forming the basis for the present action
was the subject of a prior lawsuit filed by Woodcock (along with several of the other
Limited 	Partners 	of 	FASC) 	against 	CCHS 	and 	CFVASC. 	See 	Woodcock 	v.
Cumberland Cty. Hosp. Sys., Inc., Case No. 2019-CVS-8790 (Guilford Cty. N.C.
Super. Ct.) (the “Prior Lawsuit”). 	The Prior Lawsuit was voluntarily dismissed
without prejudice by the plaintiffs pursuant to Rule 41 of the North Carolina Rules
of Civil Procedure on 24 November 2020. (Pls.’ Voluntary Dismiss. Without Prejudice
Pursuant R. 41(a)(1), Prior Lawsuit, ECF No. 85.)
20. 	On 11 May 2021, Woodcock, Carol Wadon, Camille Wahbeh, and George
Demetri (all limited partners of FASC) initiated the present action by filing a new
Complaint in Guilford County Superior Court against CCHS, CFVASC, SCA, and
6 Since the April 2019 Transactions, there have been no further changes in the ownership of
FASC. (Weatherly Aff. ¶ 25.)

NSC.7 The Complaint contained a combination of claims brought both individually
and derivatively on behalf of FASC. (See Compl. ¶¶ 12–146.)8
21. 	The claims for relief asserted in the Complaint included the following:
breach of contract/breach of implied covenant of good faith and fair dealing against
CCHS and CFVASC; tortious interference with a contractual relationship against
SCA and NSC; tortious interference with a contractual relationship (pled in the
alternative) against CCHS; breach of contract against CFVASC; civil conspiracy
against NSC, SCA, and CCHS; breach of fiduciary duty against CFVASC; tortious
interference with a contractual relationship against SCA; breach of fiduciary duty
and constructive fraud against SCA and CFVASC; and declaratory judgment against
CCHS, NSC, SCA, and CFVASC. (Compl. ¶¶ 12–146.)
22. 	By virtue of a combination of rulings by the Court and voluntary
dismissals of claims by Woodcock, the only remaining causes of action are derivative
claims for (1) breach of contract/breach of the implied covenant of good faith and fair
dealing against CCHS and CFVASC; (2) breach of fiduciary duty against CFVASC;
and (3) declaratory judgment.9
7 FASC was named as a nominal Defendant.
8 As noted above, on 19 September 2022, Plaintiffs Wadon, Wahbeh, and Demetri voluntarily
dismissed their individual claims and withdrew from the prosecution of the derivative claims,
leaving Woodcock as the sole remaining Plaintiff in this action. (ECF No. 108.)
9 At the 4 October 2023 hearing on the pending Motions, Woodcock’s counsel informed the
Court that Woodcock is no longer pursuing his derivative claim for tortious interference with
contract against CCHS.

23. 	On 	15 	May 	2023, 	the 	parties 	filed 	cross-Motions 	for 	Summary
Judgment. 	In their motion, Defendants sought summary judgment on all of
Woodcock’s remaining claims. Woodcock seeks summary judgment in his favor solely
as to his claim for breach of contract.
24. 	At the conclusion of briefing on the cross-Motions, Defendants filed a
Motion to Strike and then an Amended Motion to Strike in which they have asked
the Court to strike certain exhibits filed by Woodcock and various statements
contained in his briefs.
25. 	The Court held a hearing on the Motions on 4 October 2023, and they
are now ripe for resolution.
LEGAL STANDARD
26. 	It is well established that “[s]ummary judgment is proper ‘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.’ ” Morrell v. Hardin
Creek, Inc., 371 N.C. 672, 680 (2018) (quoting N.C. R. Civ. P. 56(c)). 	“[A] genuine
issue is one which can be maintained by substantial evidence.” 	Kessing v. Nat’l
Mortg. Corp., 278 N.C. 523, 534 (1971). 	“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.” 	Daughtridge v. Tanager
Land, LLC, 373 N.C. 182, 187 (2019) (cleaned up).

27. 	On a motion for summary judgment, “[t]he evidence must be considered
‘in a light most favorable to the non-moving party.’ ” McCutchen v. McCutchen, 360
N.C. 280, 286 (2006) (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470
(2004)). 	“[T]he party moving for summary judgment ultimately has the burden of
establishing the lack of any triable issue of fact.” 	Pembee Mfg. Corp. v. Cape Fear
Constr. Co., 313 N.C. 488, 491 (1985).
28. 	The party moving for summary judgment may satisfy its burden 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 [the] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000). “If the
moving party satisfies its burden of proof, then the burden shifts to the non-moving
party to ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Lowe
v. Bradford, 305 N.C. 366, 369–70 (1982) (quoting N.C. R. Civ. P. 56(e)). 	If the
nonmoving 	party 	does 	not 	satisfy 	its 	burden, 	then 	“summary 	judgment, 	if
appropriate, shall be entered against [the nonmovant].” United Cmty. Bank (Ga.) v.
Wolfe, 369 N.C. 555, 558 (2017) (quoting N.C. R. Civ. P. 56(e)).
29. 	When a party requests offensive summary judgment on its own claims
for relief, “a greater burden must be met.” 	Brooks v. Mt. Airy Rainbow Farms Ctr.,
Inc., 48 N.C. App. 726, 728 (1980). The moving party “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). For that reason, it is “rarely . . . 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).
ANALYSIS
I. 	Cross Motions for Summary Judgment
A. Breach of Contract/Breach of the Implied Covenant of Good Faith
and Fair Dealing
30. 	As discussed in more detail below, Woodcock’s breach of contract claim
is premised on his contention that the April 2019 Transactions breached certain
provisions of the LPA—namely, provisions seeking to (1) prevent a Limited Partner
(or its successor in interest) from obtaining significant control over the General
Partner; and (2) preclude the General Partner (or an affiliated entity) from competing
with FASC.
31. 	“The elements of a claim for breach of contract are (1) existence of a valid
contract and (2) breach of the terms of the contract.” 	Wells Fargo Ins. Servs. USA,
Inc. v. Link, 2018 NCBC LEXIS 42, at *30 (N.C. Super. Ct. May 8, 2018) (cleaned up),
aff’d per curiam, 372 N.C. 260 (2019).
32. 	The essence of Woodcock’s arguments in this case is his contention that
the April 2019 Transactions violated Sections 15.9 and 14.5 of the LPA. 	The Court
will discuss each in turn.
1. 	Section 15.9
33. 	Section 15.9 of the LPA provides as follows:

Anything contained herein to the contrary notwithstanding, no Partner
(or successor in interest of any Partner) may voluntarily or involuntarily
assign, transfer, pledge, hypothecate or make any other disposition of
the whole or any part of his Units in the Partnership, and no purported
transfer, assignment, pledge, hypothecation or other disposition of any
Units or other interest in the Partnership (whether or not such assignee
or transferee becomes a substituted Limited Partner) shall be effective
if it would result in the Limited Partners (or any successor in interest of
the Limited Partners) owning, directly or indirectly, individually or in
the aggregate, more than 20% of the stock or other equity interest of the
General Partner or any Affiliates of the General Partner as discussed in
Section 13.4 hereof.
(LPA § 15.9 (emphasis added).)10
34. 	Subpart (1) of the LPA’s Definitions section defines the term “Affiliate”
as “any corporation, partnership, trust or other entity controlling, controlled by or
under direct or indirect common control with such entity or in which such entity holds
10% or more of the outstanding voting or equity interests.” (LPA, at 1.)
35. 	Woodcock argues that Section 15.9 prevented CCHS, as a Limited
Partner or as a successor in interest to a Limited Partner, from acquiring more than
20% of the equity interest of the General Partner—CFVASC.
36. 	However, Woodcock’s argument lacks merit. As an initial matter, once
the Contribution Agreement was executed, CCHS had divested itself of the LP Units
it formerly owned by transferring them to CFVASC.11 	As a result, CCHS was no
10 Section 13.4 of the LPA, which is referenced in Section 15.9, does not contain any additional
substantive provisions relevant to interpreting Section 15.9.
11 The Court observes that Section 15.3 of the LPA expressly permits a Limited Partner to
convey its LP Units to the General Partner.

longer a Limited Partner of FASC at the time it acquired the equity of CFVASC
pursuant to the E.P.A. Rather, it was a former Limited Partner.12
37. 	Woodcock appears to focus his argument regarding Section 15.9 on his
contention that CCHS should be deemed a successor in interest of a Limited Partner
by virtue of its acquisition of CFVASC’s equity. 	Specifically, he asserts that, as a
result of the E.P.A., CCHS became the owner—albeit the indirect owner—of the LP
Units belonging to CFVASC, thereby making CCHS a successor in interest of the LP
Units that CCHS had itself previously transferred to CFVASC pursuant to the
Contribution Agreement. 	However, Woodcock’s argument—in addition to being
somewhat circular—is not based on a proper application of North Carolina law.
38. 	This Court has previously stated the following on this subject:
North Carolina courts have “defined the term ‘successor’ to mean [o]ne
that succeeds or follows; one who takes the place that another has left,
and sustains the like part or character; one who takes the part of
another by succession.” 	Terres Bend Homeowners Assoc. v. Overcash,
185 N.C. App. 45, 51, 647 S.E.2d 465, 470 (2007) (alteration in original)
(quoting Rosi v. McCoy, 319 N.C. 589, 593, 356 S.E.2d 568, 570 (1987)).
. . .
Moreover, because a “successor” by definition stands in the shoes of his
predecessor, a “successor” cannot succeed to rights that his predecessor
did not have. 	See Black’s Law Dictionary at 1473 (“A successor in
interest retains the same rights as the original owner, with no change
in substance.”)[.]
TaiDoc Tech. Corp. v. OK Biotech Co., 2015 NCBC LEXIS 74, at **14–16 (N.C. Super.
Ct. July 17, 2015).
12 Woodcock’s counsel conceded this point at the 4 October hearing.

39. 	Woodcock’s “successor in interest” argument fails to come to grip with
the fact that the E.P.A. did not confer upon CCHS direct ownership over the
contributed LP Units. Woodcock asserts that, as a practical matter, CCHS was able
to exercise authority over CFVASC’s LP Units once the E.P.A. was signed. But even
if that is true, it does not suffice to show a violation of Section 15.9. 	This Court
rejected a similar argument in Willard v. Barger, 2019 NCBC LEXIS 33 (N.C. Super.
Ct. May 29, 2019).
The Estate pleads that BW is an entity separate and distinct from the
Estate. 	The Estate’s ownership of BW’s shares may give the Estate the
practical ability to control BW’s affairs, including the disposition of BW’s
assets, but ownership in BW’s shares does not equate to direct ownership
in BW’s assets. Thus, the Estate has no direct ownership interest in the
2014 Subaru, and without ownership in the Estate, the Estate has no
legal right to recover the 2014 Subaru for the Estate.
Id. at *6 (emphasis added). See also Global Textile All., Inc. v. TDI Worldwide, LLC,
375 N.C. 72, 76 (2020) (“[A] corporation is an entity distinct from the shareholders
which own it. 	Even a corporation owned by a single individual is a distinct entity
from its shareholder.” (cleaned up)); Dep’t of Transp. v. Airlie Park, Inc., 156 N.C.
App. 63, 67 (2003) (“A corporation is treated as an entity separate from its stockholder
or stockholders under all ordinary circumstances.”).
40. 	Both immediately before and after the E.P.A. was executed, CFVASC
remained the direct legal owner of the contributed LP Units. 	Accordingly, CCHS
cannot be said to have “stepped into the shoes” of CFVASC as to their ownership or
to have otherwise become a successor in interest to a Limited Partner.

41. 	Thus, the Court concludes that the April 2019 Transactions did not
violate Section 15.9 of the LPA.
2. 	Section 14.5
42. 	Woodcock also contends that the April 2019 Transactions violated
Section 14.5 of the LPA, which states in pertinent part as follows:
This Agreement shall not preclude or limit, in any respect, the right of
the General Partner or any Affiliate of the General Partner or any
partner, owner, officer or director of the General Partner or any Affiliate
to engage or invest in any business activity of any nature or description,
including those which may be the same as or similar to the Partnership’s
business and in direct competition therewith. Any such activity may be
engaged in independently or with others, and may include, but not be
limited to, the ownership and/or operation of other surgical centers or
related 	medical 	facilities 	for 	the 	General 	Partner’s 	or 	any 	such
Affiliate’s, partner’s, owner’s, officer’s or director’s own account or the
account of others, including any partnership or other entity organized
by the General Partner or any such Affiliate, partner, owner, officer or
director. Neither the Partnership nor any Partner shall have any right,
by virtue of this Agreement or the Partnership relationship created
hereby, in or to such other ventures or activities, or to the income or
proceeds derived therefrom, and the pursuit of such ventures, even if
competitive with the business of the Partnership, shall not be deemed
wrongful or improper. 	The General Partner or any Affiliate or any
officer or director of the General Partner or any Affiliate shall have the
right to take from for its own account (individually or as a trustee) or to
recommend to others any investment opportunity. Notwithstanding the
foregoing, neither the General Partner nor any Affiliate of the General
Partner, nor any partner, owner, officer or director of the General Partner
or any Affiliate of the General Partner may engage in the business of or
invest in a surgical center or related medical facility (a “Competitive
Facility”) if such Competitive Facility maintains a place of business in,
or derives more than 5% of its patients from, Cumberland County, North
Carolina or any other county in the state of North Carolina from which
the Partnership is then currently deriving more than 5% of its patients
(the “Restricted Area”). 	Any opportunity to invest in a Competitive
Facility in the Restricted Area shall be considered as an investment
opportunity within the scope and purposes of the Partnership, and the
General Partner or its Affiliate or the partner, owner, officer or director
of 	the 	General 	Partner 	or 	its 	Affiliate 	who 	has 	identified 	such

opportunity shall either refrain from making an investment in such
Competitive Facility or shall first disclose to the Partners in reasonable
detail the material terms of such investment opportunity and offer such
opportunity for pursuit and exploitation by the Partnership and, unless
such opportunity is declined by a Majority in Interest of the Partners,
such activity shall not be pursued and, in the event of the pursuance of
such venture in violation of this requirement, all income or other
proceeds derived therefrom by the General Partner or its Affiliates or
any partner, owner, officer or director of the General Partner or its
Affiliates shall be deemed to be held in constructive trust for the benefit
of the Partnership and its Partners until the same shall be paid over to
the Partnership.
(LPA § 14.5 (emphasis added).)
43. 	In support of this argument, Woodcock asserts that (1) FASC and CCHS
are 	competitors 	in 	the 	Cumberland 	County 	market 	for 	outpatient 	surgical
procedures; and (2) by virtue of the E.P.A., CCHS became an Affiliate of the General
Partner, meaning that it was not permitted to compete against FASC by engaging in
the business of a Competitive Facility (as that term is defined in Section 14.5).
44. 	In response, Defendants make two arguments. First, they contend that
the hospitals they operate in Cumberland County do not compete with ASCs such as
FASC due to the numerous differences that exist between hospitals and ASCs.
Second, in the alternative, Defendants assert that even if a violation of Section 14.5
did occur, a retroactive ratification of the April 2019 Transactions took place by
means of an Amendment and Consent Agreement (“A&C”) that was executed in 2022
with the consent of the General Partner and two-thirds in interest of the Limited
Partners of FASC. The Court will address each argument in turn.
45. 	With regard to Defendants’ first argument, it is undisputed that (1)
FASC operates an ASC in Cumberland County; (2) at all relevant times CCHS has

owned and operated hospitals in Cumberland County where both in-patient and out-
patient surgeries were performed; and (3) by virtue of the E.P.A., CCHS became an
“Affiliate” of FASC’s General Partner.
46. 	The 	parties 	disagree, 	however, 	on 	whether 	CCHS—through 	the
operation of its hospitals—maintains a “Competitive Facility” for purposes of Section
14.5. 	The Definitions section of the LPA provides no further guidance as it simply
states that “ ‘Competitive Facility’ shall be as defined in Section 14.5 hereof.” (LPA,
at 2.)
47. 	Thus, the only definition of the term comes from the text of Section
14.5—that is, the statement that a “Competitive Facility” refers to “a surgical center
or related medical facility.”
48. 	Not surprisingly, the parties take very different positions as to how that
definition should be applied here. 	Defendants point to the existence of numerous
differences between hospitals and ASCs and emphasize that certain types of services
can be provided to patients only in hospitals and not in ASCs. In response, Woodcock
argues that both FASC and CCHS (through its hospitals) perform outpatient
surgeries in Cumberland County and therefore compete for patients in need of such
procedures. Woodcock also contends that FASC and CCHS possess the only operating
rooms in Cumberland County available for surgical procedures on patients who are
not eligible to be treated at military veterans’ hospitals.
49. 	The Court is skeptical of Defendants’ argument that a hospital can never
be deemed to qualify as a “surgical center or related medical facility.” Their

contention appears to rely on the assumption that, in order for the LPA’s definition
of “Competitive Facility” to be satisfied, the two entities in question must be alike in
all respects, which is not supported by the wording in Section 14.5. 	To be sure,
differences exist between hospitals and ASCs, but the record supports Woodcock’s
argument that outpatient surgeries were performed in Cumberland County during
the relevant time period at both FASC and CCHS’ hospitals.
50. 	For these reasons, if this were Defendants’ only argument regarding
Section 14.5, then they would not be entitled to summary judgment. 	However, the
Court finds merit in Defendants’ alternative argument that even assuming the April
2019 Transactions violated Section 14.5, any such violation was cured by the
execution of the A&C.
51. 	Woodcock, as discussed below, challenges the validity of the A&C. 	At
the 4 October hearing, however, his attorney conceded that if the Court finds the A&C
to have been validly adopted, such a ruling would entitle Defendants to summary
judgment as to all of his remaining claims.
52. 	The A&C, which was signed by CFVASC and VASA on 11 January 2022,
stated in relevant part as follows:
WHEREAS, Section 19.1 of the LPA states that the LPA may be
modified or amended at any time by a writing signed by the General
Partner and by Two-Thirds in Interest of the Limited Partners, subject
to certain restrictions not applicable to this Agreement;
WHEREAS, Section 14.3 of the LPA provides that certain actions
may not be taken by FASC, or by the General Partner on behalf of FASC,
without the approval of either Two-Thirds in Interest of the Limited
Partners or a Majority in Interest of the Limited Partners;

WHEREAS, 	(a) CFVASC holds 43.6574805% of the Limited
Partner Units of FASC and (b) VASA holds 46.0629789% of the Limited
Partner Units of FASC and therefore, CFVASC and VASA collectively
represent “Two-Thirds in Interest of the Limited Partners” and a
“Majority in Interest of the Limited Partners”, as such terms are defined
in the LPA;
WHEREAS, consistent with the LPA, on April 1, 2019 (the
“Closing Date”), Cumberland County Hospital System, Inc. d/b/a Cape
Fear Valley Health System (“CFVHS”) and CFVASC entered into a
Contribution Agreement, pursuant to which CFVHS contributed all of
the Limited Partner Units in FASC then held by CFVHS (constituting
39.2472388% of the Limited Partner Units of FASC) to CFVASC (the
“Contribution”), contingent on the closing of the Equity Purchase;
WHEREAS, immediately following the Contribution, on April 1,
2019, CFVHS, as permitted under the LPA, purchased from National
Surgery 	Centers, 	LLC, 	a 	Delaware 	limited 	liability 	company 	(the
“Seller”), 	all 	of 	the 	equity 	interests 	of 	CFVASC 	(the 	“Equity
Purchase” and, together with the Contribution, the “Transaction”);
WHEREAS, 	after 	the 	closing 	of 	the 	Transaction, 	CFVASC
continued to be the General Partner of FASC, and CFVHS became the
direct owner of all of the equity of CFVASC and therefore became an
Affiliate of CFVASC; and
WHEREAS, in connection with the Transaction, and for the
avoidance of any doubt, the Parties desire to (a) confirm that there have
been no violations of Section 14.5 or 15.13 of the LPA, (b) amend the
LPA in accordance with the terms and conditions of the LPA, and (c)
approve the Transaction with respect to FASC, in each case, as further
set forth below; and
NOW, THEREFORE, in consideration of the premises set forth
above, which are incorporated in this Agreement as if fully set forth
below, and the representations, warranties, covenants and agreements
contained in this Agreement, and intending to be legally bound hereby,
the Parties agree as follows:
Section 1. 	Good Standing; No Violations under Section 14.5 or
15.13 of the LPA. Each of the Parties, on behalf of itself and its successors
and assigns and their respective representatives, hereby absolutely,
unconditionally and irrevocably confirms that, as of the Effective Date
and retroactive beginning on April 1, 2018, (a) all of the Parties and their
Affiliates that are Partners (and, to the extent applicable prior to the

Effective Date, including as a prior Limited Partner, CFVHS) are in good
standing under the LPA and (b) none of the Parties and their Affiliates
that are Partners (and, to the extent applicable prior to the Effective Date,
including as a prior Limited Partner or an Affiliate of CFVASC, CFVHS)
are now, nor have they previously been, in violation or breach of Section
14.5 or 15.13 of the LPA.
Section 2. 	Amendments to the LPA. The following amendments
shall apply retroactively beginning on April 1, 2018.
(a) 	Section 14.5 of the LPA is hereby amended and
restated in its entirety to read as follows:
Section 14.5
(a) This Agreement shall not prohibit, preclude, restrict or
limit, in any respect, the right of the General Partner,
its 	Affiliates 	or 	their 	respective 	partners, 	owners,
officers, directors and managers (collectively, the “GP
Parties”) to engage or invest in any business activity of
any nature or description, including, without limitation,
those which may be the same as or similar to the
Partnership’s 	business 	and 	in 	direct 	competition
therewith. Any 	such 	activity 	may 	be 	engaged 	in
independently or with others, and may include, without
limitation, the ownership and/or operation of other
surgical centers or related medical facilities for any GP
Party’s own account or the account of others, including
any entity organized by any GP Party. 	Neither the
Partnership nor any Partner have any right, by virtue
of 	this 	Agreement 	or 	the 	Partnership 	relationship
created 	hereby, 	in 	or 	to 	such 	other 	ventures 	or
activities, 	or 	to 	the 	income 	or 	proceeds 	derived
therefrom, and the pursuit of such ventures, even if
competitive with the business of the Partnership, shall
not be deemed wrongful or improper. 	Each GP Party
shall 	have 	the 	right 	to 	take 	for 	its 	own 	account
(individually or as a trustee) or to recommend to others
any investment opportunity.
(b) Notwithstanding 	the 	foregoing, 	no 	GP 	Party 	may
engage in the business of, or invest in, a free-standing
ambulatory surgery center (a “Competitive Facility”) if
such Competitive Facility maintains a place of business
in, or derives more than five percent (5%) of its patients

from Cumberland County, North Carolina or any other
county in the State of North Carolina from which the
Partnership 	then 	currently 	derives 	more 	than 	five
percent (5%) of its patients, calculated on an annualized
basis over the immediately preceding 12-month period
(the “Restricted Area”); provided, however, that no full-
service hospital and/or health system owned, operated
or managed by CFVHS or any of its Affiliates prior to,
on or after the date hereof (including as applicable,
without limitation, Harnett Health System, Inc., Betsy
Johnson 	Hospital 	in 	Harnett 	County, 	NC, 	Bladen
County Hospital, Hoke Hospital, and their respective
Affiliates) shall constitute a Competitive Facility.
. . .
(b) Section 15.13 of the LPA is hereby amended and
restated in its entirety to read as follows:
Section 15.13
. . .
(e) Notwithstanding anything contained in this Agreement
to the contrary, nothing in Section 14.5 or in this Section
15.13 shall prohibit, preclude, restrict or limit (i) CFVHS
or 	any 	of 	its 	Affiliates 	from 	directly 	or 	indirectly
operating, 	managing 	or 	owning 	those 	full-service
hospitals and/or health systems which it (A) operated,
managed or owned, as the case may be, prior to or as of
April 1, 2019 or (B) subsequently operates, manages or
owns, as the case may be, at any time after April 1, 2019
or (ii) any Partner from owning, as a passive investment,
up to one percent (1%) of the equity securities of any
Person 	in 	competition 	with 	the 	Partnership, 	which
securities are listed on any national securities exchange,
as 	long 	as 	such 	Partner 	has 	no 	other 	business
relationship, direct or indirect, with the issuer of such
securities.
. . .
Section 3. 	Consent, 	Ratification 	and 	Approval 	of 	the
Transaction. For the avoidance of any doubt, the Parties hereby consent
to, 	approve, 	ratify 	and 	confirm 	the 	execution 	and 	delivery 	of 	any
agreements, documents and certificates to which FASC is a party or may

be bound with respect to the Transaction (together with the Contribution
Agreement and Equity Purchase Agreement governing the Transaction,
the 	“Transaction 	Documents”) 	and 	the 	consummation 	of 	the
transactions contemplated thereby (including the Transaction).
. . .
Section 4. 	Waiver and Release. 	For the good and valuable
consideration 	set 	forth 	in 	this 	Agreement, 	which 	is 	hereby
acknowledged, VASA, for itself, on behalf of its shareholders, and in its
capacity as a limited partner of FASC, agrees as follows:
(x) That any and all claims, rights, remedies, or damages,
whether at law or in equity, of any kind or nature whatsoever, whether
known or unknown, whether in contract, tort, equity or otherwise, and
whether arising from conduct occurring prior to or at the Effective Date,
that 	it 	or 	they 	may 	have 	against 	CFVASC 	and/or 	its 	respective
subsidiaries, parents, successors and assigns and any of their respective
officers, 	directors, 	managers, 	employees, 	agents, 	counsel,
representatives or advisors (the “Released Parties”) with respect to
any matter (i) occurring prior to or at the Effective Date relating to
Sections 14.5 (Powers, Rights and Duties of the General Partner) or
15.13 (Transfer of Interests by Partners) of the LPA or (ii) in any way
relating 	to 	the 	Transaction 	or 	arising 	in 	connection 	with 	the
Transaction, are hereby fully, unconditionally, irrevocably and forever
waived, released and discharged (the “Released Actions”).
(A&C, at 1–5 (emphasis added), ECF No. 173.10.)
53. 	As recognized by a leading North Carolina treatise on commercial law,
“[s]ometimes an improper act or transaction that is the basis of a derivative claim can
be cured retroactively by ratification[.]” 	1 Robinson on N.C. Corp. Law § 17.07; see
also Holland v. Warren, 2020 NCBC LEXIS 146 (N.C. Super. Ct. Dec. 15, 2020)
(allowing retroactive ratification of transaction by board of directors of a non-profit
property owners’ association); Michelson v. Duncan, 407 A.2d 211, 219 (Del. 1979) (“It
is the law of Delaware, and general corporate law, that a validly accomplished

shareholder ratification relates back to cure otherwise unauthorized acts of officers
and directors.”).
54. 	Although 	there are substantive limits to the 	ratification 	doctrine,
Woodcock does not argue that any of these limitations are applicable here. Instead,
his sole argument lies with the manner in which the A&C was adopted. Accordingly,
the Court will only address this argument.
55. 	At a meeting of VASA shareholders on 3 January 2022, a majority of the
shareholders voted in favor of adopting the A&C. (Lowe Aff. ¶¶ 7, 9.) Subsequently,
on 11 January 2022, the A&C was formally executed by VASA and CFVASC.13 (A&C;
Weatherly Aff. ¶ 33; Lowe Aff. ¶ 10.)
56. 	Woodcock’s only argument as to the invalidity of the A&C is based on
his contention that the procedure set out in Section 19.6 of the LPA was not followed
with regard to the A&C’s adoption. 	Defendants, conversely, contend that the only
provision in the LPA triggered by the adoption of the A&C was Section 19.1, which
was satisfied.
57. 	The relevant portion of Section 19.1 reads as follows:
This agreement may be modified or amended at any time by a writing
signed by the General Partner and by Two-Thirds in Interest of the
Limited Partners . . .
(LPA § 19.1.)
58. 	Section 19.6 states the following:
13 CCHS also signed the A&C “for the sole, limited purpose of agreeing that FASC shall be
classified as a Tier 1 in-network facility for purposes of CCHS’s self-insured health plan
covering CCHS employees and dependents.” (Weatherly Aff. ¶ 33.)

Any 	consent 	or 	approval 	of 	a 	Limited 	Partner 	required 	by 	this
Agreement may be given as follows:
(a) 	By a written consent given by the consenting Limited Partner and
received by the General Partner at or prior to the doing of the act or
thing for which the consent is solicited; or
(b) 	By the affirmative vote by the consenting Limited Partner to the
doing of the act or thing for which the consent is solicited at any meeting
called pursuant to Section 19.4 or Section 19.5 to consider the doing of
such act or thing.
(LPA § 19.6.)
59. 	Defendants argue that the execution of the A&C complied with Section
19.1 because the A&C “is in fact a ‘writing signed by’ CFVASC, in its capacity as
General Partner, and by both VASA and CFVASC in their capacities as Limited
Partners. 	As noted, VASA and CFVASC together represent Two-Thirds in Interest
of the Limited Partners.” (Defs.’ Br. Supp. Mot. Summ. J., at 18, ECF No. 172.)
60. 	In response, Woodcock asserts that Sections 19.1 and 19.6 must be read
together and that the above-described process by which the A&C came into existence
was not in compliance with Section 19.6.
61. 	As an initial matter, the Court finds that Woodcock has failed to show
how Section 19.1 was violated in connection with the A&C’s adoption. 	However, by
its plain terms, Section 19.1 only applies to modifications and amendments of the
LPA. 	Although Defendants contend that the A&C effectuated an amendment to
Section 14.5, they further assert that the A&C additionally served as a ratification of
the April 2019 Transactions and as a waiver of any claims arising therefrom. 	For

this reason, it is necessary to examine other provisions of the LPA in addition to
Section 19.1.
62. 	Although the parties do not focus their arguments on this section, the
Court notes that Section 14.3(j) of the LPA states as follows:
In addition to other acts expressly prohibited or restricted by this
Agreement or by the Partnership Act, and in order to eliminate or limit
any actual or potential conflicts of interest between the General Partner
and the Partnership or the Limited Partners, the General Partner shall
have no authority to make any decision or take any action to act on
behalf of the Partnership with respect to any of the following matters
unless such decision or action within the scope of the following matters
has been approved in writing by Two-Thirds in Interest of the Limited
Partners:
. . .
(j) 	Doing any act in contravention of this Agreement . . .
(LPA § 14.3(j).)
63. 	Although neither subpart (j) nor any other subpart of Section 14.3
expressly deal with retroactive ratifications of acts that violate the LPA, Section
14.3’s introductory paragraph lends further support to the proposition that approval
in writing by Two-Thirds in Interest of the Limited Partners is all that is needed for
the General Partner to take such action. 	Woodcock does not dispute the fact that
such written approval existed with regard to the A&C’s adoption.
64. 	Moreover, to the extent that Section 19.6 is, in fact, applicable and that
its provisions should be construed as mandatory rather than merely permissive,14 it
appears that subpart (a) of that section was, in fact, satisfied.
14 Defendants argue that because Section 19.6 uses the word “may” rather than the word
“shall,” its provisions are merely permissive examples of how the consent or approval of a

65. 	Subpart (a) of Section 19.6 states that consent or approval of a Limited
Partner may be effectuated “[b]y a written consent given by the consenting Limited
Partner and received by the General Partner at or prior to the doing of the act or
thing for which the consent is solicited[.]” (LPA § 19.6(a).)
66. 	Woodcock does not dispute the fact that the A&C qualifies as a “written
consent” given by the consenting Limited Partners and received by the General
Partner. Instead, he argues that subpart (a) does not allow for the sort of retroactive
effect that Defendants sought to achieve by adopting the A&C. He contends that the
phrase “at or prior to the doing of the act or thing for which the consent is solicited”
is limited only to prospective acts as opposed to backward-looking retroactive acts.
Thus, according to Woodcock, the “act or thing for which the consent [wa]s [being]
solicited” had already occurred back in April of 2019—that is, the April 2019
Transactions.
67. 	The Court is unable to agree with Woodcock’s argument. 	The better
interpretation is that “the act or thing for which the consent [wa]s [being] solicited”
was the future act of adopting the A&C (regardless of the fact that the effect of the
A&C’s 	adoption 	would 	be 	to 	provide 	retroactive 	relief). 	Thus, 	even 	assuming
Limited Partner could be given rather than the exclusive mechanisms for obtaining such
approval. It is true that the word “may” is typically construed as being merely permissive
rather than mandatory. See, e.g., Campbell v. First Baptist Church, 298 N.C. 476, 483 (1979)
(“[T]he use of ‘may’ generally connotes permissive or discretionary action and does not
mandate or compel a particular act.”). 	Woodcock, conversely, argues that when read
contextually, Section 19.6 should be interpreted as setting out the only valid ways in which
such consent or approval can be given by a Limited Partner. 	However, even assuming
arguendo that Woodcock is correct on this point, the Court is satisfied that—as explained
below—the A&C’s adoption satisfied subpart (a) of Section 19.6.

compliance with Section 19.6 was necessary, the Court rejects Woodcock’s sole
argument as to why subpart (a) was not satisfied.
68. 	The Court has carefully considered Woodcock’s remaining arguments
and finds them to be without merit.
69. 	For these reasons, 	Defendants’ Motion for Summary Judgment is
GRANTED as to Woodcock’s breach of contract claim, and Woodcock’s motion for
summary judgment as to that claim is DENIED.
3. 	Breach of the Implied Covenant of Good Faith and Fair
Dealing
70. 	Defendants are likewise entitled to summary judgment on Woodcock’s
accompanying claim for breach of the implied covenant of good faith and fair dealing.
71. 	All contracts contain an implied covenant of good faith and fair dealing
that places a duty on the parties to “act in good faith and to make reasonable efforts
to perform [their] obligations under the agreement.” Maglione v. Aegis Family Health
Ctrs., 168 N.C. App. 49, 56 (2005). 	“To state a valid claim for breach of the implied
covenant of good faith and fair dealing, a plaintiff must plead that the party charged
took action which injured the right of the other to receive the benefits of the
agreement, thus depriving the other of the fruits of the bargain.” Conleys Creek Ltd.
P’ship v. Smoky Mountain Country Club Prop. Owners Ass’n, Inc., 255 N.C. App. 236,
253 (2017) (cleaned up).
72. 	In Cordaro v. Harrington Bank, our Court of Appeals stated the
following regarding the effect of the dismissal of an underlying breach of contract

claim on an accompanying claim for breach of the implied covenant of good faith and
fair dealing:
The invalidity of Cordaro’s breach of contract claim on these facts is
likewise fatal to his claim for breach of the implied covenant of good faith
and fair dealing. Under North Carolina law, every contract contains “an
implied covenant of good faith and fair dealing that neither party will
do anything which injures the right of the other to receive the benefits
of the agreement.” Bicycle Transit Auth. v. Bell, 314 N.C. 219, 228, 333
S.E.2d 299, 305 (1985) (citation and quotation marks omitted).
. . .
As a general proposition, where a party’s claim for breach of the implied
covenant of good faith and fair dealing is based upon the same acts as
its claim for breach of contract, we treat the former claim as “part and
parcel” of the latter. Murray v. Nationwide Mut. Ins. Co., 123 N.C. App.
1, 19, 472 S.E.2d 358, 368 (1996), disc. review denied, 345 N.C. 344, 483
S.E.2d 173 (1997); see Suntrust Bank v. Bryant/Sutphin Props., LLC,
222 N.C. App. 821, 833, 732 S.E.2d 594, 603 (“As the jury determined
that plaintiff did not breach any of its contracts with defendants, it
would be illogical for this Court to conclude that plaintiff somehow
breached implied terms of the same contracts.”), disc. review denied, 366
N.C. 417, 735 S.E.2d 180 (2012).
Here, the basis for Cordaro’s claim that Harrington breached the
implied covenant of good faith and fair dealing is identical to the basis
for his breach of contract claim. 	Therefore, the trial court properly
dismissed this claim as well.
Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 38–39 (2018).
73. 	Accordingly, 	because 	Woodcock’s 	claim 	for 	breach 	of 	the 	implied
covenant of good faith and fair dealing is based on the same acts as his claim for
breach of contract, Defendants’ Motion for Summary Judgment is GRANTED as to
Woodcock’s claim for breach of the implied covenant of good faith and fair dealing,
and Woodcock’s summary judgment motion as to that claim is DENIED.

B. Breach of Fiduciary Duty Claim
74. 	Woodcock also asserts a breach of fiduciary duty claim against CFVASC.
75. 	It is well-settled that “[t]o establish a claim for breach of fiduciary duty,
a plaintiff must show that: (1) the defendant owed the plaintiff a fiduciary duty; (2)
the defendant breached that fiduciary duty; and (3) the breach of fiduciary duty was
a proximate cause of the injury to the plaintiff.” Sykes v. Health Network Sols., Inc.,
372 N.C. 326, 339 (2019).
76. 	However, this claim is—as Woodcock’s counsel has conceded—based on
the premise that the April 2019 Transactions resulted in a breach of the LPA, which
this Court has now rejected. Accordingly, the Court GRANTS Defendants’ summary
judgment motion on this claim as well.
C. Declaratory Judgment Claim
77. 	Finally, Woodcock has asserted a declaratory judgment claim seeking a
declaration from the Court that CCHS does not have lawful authority to own 100%
of the equity of FASC’s General Partner or to exercise any authority over the General
Partner based on the alleged invalidity of the April 2019 Transactions.
78. 	In light of the Court’s entry of summary judgment in favor of Defendants
on Woodcock’s breach of contract claim, Defendants’ Motion for Summary Judgment
is likewise GRANTED as to this claim.
II. 	Motion to Strike
79. 	Finally, Defendants request that the Court strike certain exhibits filed
by Woodcock and various statements contained in Woodcock’s Memorandum of Law

in Opposition to Defendants’ Motion for Summary Judgment, (ECF No. 183) on the
ground that they “are irrelevant and would not be admissible in evidence.” 	(Mot.
Strike, at 1–2.)
80. 	However, 	because 	the 	Court 	has 	granted 	summary 	judgment 	for
Defendants on all of Woodcock’s remaining claims, the Motion to Strike is DENIED
as moot.
CONCLUSION
THEREFORE, IT IS ORDERED as follows:
1. 	Defendants’ Motion for Summary judgment is GRANTED;
2. 	Woodcock’s Motion for Summary Judgment is DENIED; and
3. 	Defendants’ Amended Motion to Strike is DENIED as moot.
SO ORDERED, this the 18th day of October, 2023.15
/s/ Mark A. Davis
Mark A. Davis
Special Superior Court Judge
for Complex Business Cases
15 This Order and Opinion was originally filed under seal on 18 October 2023. This public
version of the Order and Opinion is being filed on 24 October 2023. To avoid confusion in the
event of an appeal, the Court has elected to state the filing date of the public version of the
Order and Opinion as 18 October 2023.