Christenbury Eye Ctr., P.A. v. Medflow, Inc.

Christenbury Eye Ctr., P.A. v. Medflow, Inc., 2015 NCBC 61.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF MECKLENBURG 14 CVS 17400

CHRISTENBURY EYE CENTER, )
P.A., )
)
Plaintiff, )
)
v. )
ORDER & OPINION
)
MEDFLOW, INC. and )
DOMINIC JAMES RIGGI, )
)
Defendants. )
)

{1} THIS MATTER is before the Court on Defendant Medflow, Inc.’s
Motion to Dismiss and Defendant Dominic James Riggi’s Motion to Dismiss
(collectively, “Motions”) made pursuant to Rule 12(b)(6) of the North Carolina Rules
of Civil Procedure (“Rule(s)”). For the reasons stated below, the Motions are
GRANTED.
Shumaker, Loop & Kendrick, LLP by Frederick M. Thurman, Jr. for Plaintiff.
Robinson Bradshaw & Hinson, P.A. by Fitz E. Barringer, Heyward H.
Bouknight, III, and Kindl Detar for Defendant Medflow, Inc.
Moore & Van Allen PLLC by Benjamin P. Fryer and Nader S. Raja for
Defendant Dominic James Riggi.
Gale, Chief Judge.

I. PROCEDURAL BACKGROUND

{2} Plaintiff initiated this action on September 11, 2014, bringing claims
for breach of contract, fraud, unfair and deceptive trade practices (“UDTP”), and
unjust enrichment, based on a contract entered on October 20, 1999. The matter
was designated a mandatory complex business case and assigned to the
undersigned on October 27, 2014.
{3} Defendant Dominic James Riggi (“Riggi”) filed his motion on November
21, 2014, moving pursuant to Rule 12(b)(6) to dismiss all claims. Defendant
Medflow, Inc. (“Medflow”) also filed a Rule 12(b)(6) motion on December 1, 2014.
The Motions have been fully briefed and are ripe for disposition.

II. FACTUAL BACKGROUND

{4} The following facts are based on the allegations of the Verified
Complaint and are accepted as true for purposes of the Motions.
{5} Plaintiff Christenbury Eye Center, P.A. (“Christenbury”) is a
professional association located in Charlotte, North Carolina that offers
ophthalmology and ophthalmic services. Dr. Jonathan D. Christenbury (“Dr.
Christenbury”) founded Christenbury.
{6} In 1998 or 1999, Dr. Christenbury approached Riggi about finding or
developing a software package to help Dr. Christenbury and other ophthalmologists
manage their practice and maintain their records.
{7} Around the same time, Riggi formed Medflow, which retained a
software engineer to customize and enhance a general medical records management
software platform. Dr. Christenbury paid Medflow in excess of $200,000 to prepare
a software package.
{8} On October 20, 1999, Christenbury and Medflow entered into an
Agreement Regarding Enhancements (“Agreement”). (Verified Compl. ¶ 15, Ex. A.)
The “Enhancements” are improvements to the original software platform, including
“customized screens, interfaces, forms, [and] procedures.” (Verified Compl. Ex. A.)
Christenbury assigned its rights in the platform and Enhancements to Medflow and
retained rights to use and display the platform and Enhancements. Christenbury
did not retain a right to sublicense or distribute the platform or Enhancements.
Medflow was prohibited from selling the platform or Enhancements in North
Carolina or South Carolina without Christenbury’s written consent. Medflow was
obligated to pay Christenbury a ten percent royalty for all fees received in
association with the Enhancements’ resale or provision, with a minimum yearly
royalty of $500 for each of the five years after October 20, 1999. Medflow was to
“provide Christenbury with a written report on a monthly basis which will include a
detailed description of the fees received from [Medflow’s] Customers during the
prior month, along with payment to Christenbury of all corresponding fees due with
respect to such charges for that prior month.” (Verified Compl. Ex. A.) Riggi signed
the Agreement on behalf of Medflow and an acknowledgment binding him to the
Agreement’s terms in his individual capacity.
{9} Medflow never provided Christenbury with the required written report
and never paid any royalties to Christenbury.
{10} In February 2001, Medflow informed Christenbury of modifications
made to the original software and requested that the Agreement be modified,
stating, “As you may know, MedFlow has developed a new Refractive Surgery
Management Software and wants to install that at Dr. Christenbury’s office. This
new version contains several new components not contained in the original
MedFlow Refractive Surgery software and many improvements over the original
package.” (Verified Compl. ¶ 16.) The parties did not ultimately amend the
Agreement. Christenbury continued to use the original platform. Medflow sold the
newer version without reporting sales or paying royalties to Christenbury.
{11} In 2002, an article concerning electronic medical records appeared in
the publication, Opthalmology Management. Riggi was interviewed for the article,
which stated that Medflow “created and customizes the EMR in use at Christenbury
Eye Center and at Beach Eye Care.” (Verified Compl. ¶ 18.)
{12} Christenbury received updates to and services for the original platform
“[f]rom time to time after the execution of the Agreement” from service providers
directly associated with Medflow. (Verified Compl. ¶¶ 22, 23.) In 2011, Medflow’s
service provider refused to provide Christenbury an update, stating that it no longer
supported Christenbury’s platform. Shortly thereafter, the service provider’s agent
demonstrated Medflow’s newer product for Dr. Christenbury.
{13} Plaintiff alleges that, “[u]pon information and belief, since October
1999, Medflow has further developed, modified, and sold the Enhancements, and
derivatives thereof, to other ophthalmologic practices, both inside and outside the
restricted territory of North Carolina and South Carolina, without paying royalties
to the Practice.” (Verified Compl. ¶ 28.) The Verified Complaint does not clearly
indicate when Plaintiff discovered the facts on which this allegation is based.

III. STANDARD OF REVIEW

{14} On a motion to dismiss pursuant to Rule 12(b)(6), the Court inquires
“whether, as a matter of law, the allegations of the complaint, treated as true, are
sufficient to state a claim upon which relief may be granted under some legal
theory, whether properly labeled or not.” Crouse v. Mineo, 189 N.C. App. 232, 237,
658 S.E.2d 33, 36 (2008) (quoting Harris v. NCNB Nat’l Bank of N.C., 85 N.C. App.
669, 670, 355 S.E.2d 838, 840 (1987)). The Court may grant a motion to dismiss
under Rule 12(b)(6) where one of the following is true: (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. Oates v. JAG, Inc.,
314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
{15} For purposes of the Motions, the Court accepts the factual allegations
of the Verified Complaint as true without assuming the veracity of Plaintiff’s legal
conclusions. Walker v. Sloan, 137 N.C. App. 387, 392, 592 S.E.2d 236, 241 (2000).

IV. ANALYSIS

{16} Plaintiff claims that it is entitled to recover for breach of contract,
fraudulent concealment, UDTP, and unjust enrichment. The Court addresses the
claims in that order, finding that each should be dismissed.

A. Breach of Contract Claim

{17} Plaintiff has clearly pled that there was a contract that Defendants
breached. The question is whether that claim is time-barred. North Carolina
imposes a three-year statute of limitations for breach of contract claims. N.C. Gen.
Stat. § 1-52(1) (2014). “[A]s soon as the injury becomes apparent to the claimant or
should reasonably become apparent, the cause of action is complete and the
limitation period begins to run. It does not matter that further damage could occur;
such further damage is only an aggravation of the original injury.” Liptrap v. City
of High Point, 128 N.C. App. 353, 355, 496 S.E.2d 817, 819 (1998) (quoting Pembee
Mfg. Corp. v. Cape Fear Const. Co., 313 N.C. 488, 493, 329 S.E.2d 350, 354 (1985)).
Defendants contend that Plaintiff’s breach of contract claim accrued when
Defendants first failed to make reports or make royalty payments, so that the claim
is outside the limitations period. Plaintiff claims that any limitations period was
tolled by Defendants’ fraudulent concealment. Alternatively, Plaintiff claims that it
is entitled, at a minimum, to royalty payments due within the three years prior to
the filing of the Verified Complaint. Defendants counter that all claims have been
waived.

i. Statute of Limitations

{18} Typically, a contract claim begins to accrue when the breach occurs.
PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 424, 594 S.E.2d 148, 152
(2004). Occasionally, “equity will deny the right to assert [a statute of limitations]
defense when delay has been induced by acts, representations, or conduct, the
repudiation of which would amount to a breach of good faith.” Watkins v. Cent.
Motor Lines, Inc., 279 N.C. 132, 139–40, 181 S.E.2d 588, 593 (1971) (quoting Nowell
v. Great Atl. & Pac. Tea Co., 250 N.C. 575, 579, 108 S.E.2d 889, 891 (1959)). This
results from application of the doctrine of equitable estoppel, which “arises when an
individual by his acts, representations, admissions or silence, when he has a duty to
speak, intentionally or through culpable negligence,” induces another to believe in
and rely upon the existence of certain facts to his detriment. Miller v. Talton, 112
N.C. App. 484, 488, 435 S.E.2d 793, 797 (1993). To take advantage of equitable
estoppel, a party asserting an otherwise stale claim must specifically allege: “(1)
conduct on the part of the party sought to be estopped which amounts to a false
representation or concealment of material facts; (2) the intention that such conduct
will be acted on by the other party; and (3) knowledge, actual or constructive, of the
real facts.” Robinson v. Bridgestone/Firestone N.A. Tire, LLC, 209 N.C. App. 310,
319, 703 S.E.2d 883, 889 (2011) (quoting Bryant v. Adams, 116 N.C. App. 448, 460,
448 S.E.2d 832, 838 (1994)). The party asserting the claim must plead the
necessary facts with particularity and demonstrate that the defendant’s
representations delayed it from filing suit. Duke Univ. v. St. Paul Mercury Ins. Co.,
95 N.C. App. 663, 673, 384 S.E.2d 26, 42 (1989); see also N.C. R. Civ. P. 8(c).
Additionally, the claimant must show that it lacked knowledge, did not have the
means of ascertaining the real facts, and rightfully relied on the opposing party’s
conduct to its detriment. Duke Univ., 95 N.C. App. at 673, 384 S.E.2d at 42;
Johnson Neurological Clinic, Inc. v. Kirkman, 121 N.C. App. 326, 332, 465 S.E.2d
32, 35 (1996). “A party cannot rely on equitable estoppel if it ‘was put on inquiry as
to the truth and had available the means for ascertaining it.’” Wade S. Dunbar Ins.
Agency, Inc. v. Barber, 147 N.C. App. 463, 470, 556 S.E.2d 331, 336 (2001) (quoting
Hawkins v. M. & J. Fin. Corp., 238 N.C. 174, 179, 77 S.E.2d 669, 673 (1953)).
{19} Here, the allegations on the face of the Verified Complaint reveal that
Medflow did not perform its reporting and payment obligations at least as early as
October 20, 2000, when the first minimum royalty payment was due and
substantially more than three years prior to when the Verified Complaint was filed.
Those allegations would then demonstrate that the claim for any payment is time-
barred unless the Agreement is considered an installment contract, with a new
claim accruing and a new limitations period beginning upon the failure to make
each payment.
{20} “Generally, where obligations are payable in installments, the statute
of limitations runs against each installment independently as it becomes due.”
Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 357, 396 S.E.2d 327, 332
(1990). This principle has been applied to annual tax obligations arising out of a
contract, lease payments, a computer system service contract, and improper
overcharges for workers’ compensation insurance. See id.; U.S. Leasing Corp. v.
Everett, Creech, Hancock & Herzig, 88 N.C. App. 418, 363 S.E.2d 665 (1988);
Northside Pharm., Inc. v. Owens & Minor, Inc., No. 88-3059, 1990 N.C. App. LEXIS
2457 (4th Cir. Feb. 21, 1990); Jacobs v. Cent. Transp., Inc., 891 F. Supp. 1120,
1124–25 (E.D.N.C. 1995).
{21} Defendants assert that the Agreement should not be considered an
installment contract because of how an “installment contract” is defined by North
Carolina’s version of the Uniform Commercial Code. N.C. Gen. Stat. § 25-2-612(1)
(2014) (“An ‘installment contract’ is one which requires or authorizes the delivery of
goods in separate lots to be separately accepted, even though the contract contains a
clause ‘each delivery is a separate contract’ or its equivalent.”). However,
authorities have treated agreements falling outside of this definition as installment
contracts for statute of limitations purposes. See, e.g., Ray Lackey Enters., 100
N.C. App. 349, 396 S.E.2d 327; Northside Pharm., Inc. v. Owens & Minor, Inc., No.
88-3059, 1990 N.C. App. LEXIS 2457 (extending the principle to computer servicing
contract).
{22} Arguably, if the Agreement is an “installment contract,” Plaintiff
would have an action for payments and reporting obligations due after September
11, 2011. However, the Court need not address this issue because the facts
disclosed on the face of the Verified Complaint demonstrate either that Plaintiff
waived its rights under the Agreement by its consistent failure to enforce it or that
Defendants clearly repudiated their obligations to report and make royalty
payments pursuant to the Agreement.

ii. Waiver and Repudiation

{23} “The essential elements of waiver are (1) the existence, at the time of
the alleged waiver, of a right, advantage or benefit; (2) the knowledge, actual or
constructive, of the existence thereof; and (3) an intention to relinquish such right,
advantage or benefit.” Demeritt v. Springsteed, 204 N.C. App 325, 328–29, 693
S.E.2d 719, 721 (2010) (quoting Fetner v. Granite Works, 251 N.C. 296, 302, 111
S.E.2d 324, 328 (1959)). “The intention to waive may be expressed or implied from
acts or conduct that naturally lead the other party to believe that the right has been
intentionally given up.” Klein v. Avemco Ins. Co., 289 N.C. 63, 68, 220 S.E.2d 595,
599 (1975) quoted in Demeritt, 204 N.C. App. at 329, 693 S.E.2d at 721. An
individual may express an intention to relinquish a contractual right when he “does
or forbears to do something inconsistent with the existence of the right or of his
intention to rely upon that right.” Hardin v. Liverpool & London & Globe Ins. Co.,
189 N.C. 423, 127 S.E. 353, 354 (1925). This may include, for example, a failure to
insist on closing on a contract that has a “time is of the essence” clause. Phoenix
Ltd. P’ship of Raleigh v. Simpson, 201 N.C. App. 493, 501–02, 688 S.E.2d 717, 723
(2009).
{24} Christenbury was on notice of its rights to receive written reports and
minimum annual royalty payments, but it neither complained of nor insisted on
either, even though it had the right and opportunity to do so when Riggi requested
contractual amendments in 2001, at which time Christenbury had received no
report and no minimum royalty payments. Throughout the period, Christenbury
continued to affirm the Agreement by using and updating the software installed
pursuant to it.
{25} The Court finds that the facts disclosed on the face of the Verified
Complaint demonstrate that, by declining to take action in regard to Defendants’
failure to submit reports or make royalty payments, Christenbury waived any right
to future payments to the extent that the Agreement could appropriately be
considered an installment contract. Alternatively, if Christenbury did not waive its
rights, Defendants clearly repudiated the contract by their consistent and repeated
failure to perform, placing Plaintiff on notice that future reports and payments
would not be made.
{26} A breach of contract may occur by repudiation, which is “a positive
statement by one party to the other party indicating that he will not or cannot
substantially perform his contractual duties.” Profile Invs. No. 25, LLC v. Ammons
E. Corp., 207 N.C. App. 232, 236, 700 S.E.2d 232, 235 (2010) (quoting Millis Constr.
Co. v. Fairfield Saphhire Valley, 86 N.C. App. 506, 510, 358 S.E.2d 566, 569 (1987)).
To result in a breach of contract, “the refusal to perform must be of the whole
contract or of a covenant going to the whole consideration, and must be distinct,
unequivocal, and absolute.” Profile Invs., 207 N.C. App. at 237, 700 S.E.2d at 235
(quoting Edwards v. Proctor, 137 N.C. 41, 44, 91 S.E. 584, 585 (1917)). Even a
distinct, unequivocal, and absolute refusal is not a breach unless the adverse party
treats it as such. Id. Where an individual repudiates his obligations under a
contract by clear or unequivocal acts and the adverse party is on notice of the
repudiation “in such manner that he is called upon to assert his rights,” the statute
of limitations begins to run from the time the adverse party learned of the
repudiation. Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83, 87 (1938).
{27} Here, Defendants clearly repudiated their obligations to report and to
pay royalties under the Agreement. They advised Christenbury of their intent to
market a newer product. They requested an amendment to the Agreement that
Christenbury refused. Christenbury was on notice of this repudiation shortly after
October 20, 2000, when the first minimum royalty payment was due. Having failed
to assert its rights pursuant to the Agreement for approximately fourteen years, a
breach of contract claim is now time-barred.
{28} The Court further finds that the allegations on the face of the Verified
Complaint demonstrate that Plaintiff cannot defeat the application of the statute of
limitations by invoking the doctrine of equitable estoppel. Plaintiff did not
rightfully rely on Defendants’ conduct to forebear from filing suit, as the Agreement,
at a minimum, gave rise to annual royalty obligations that were never paid.

B. Fraudulent Concealment Claim

{29} Fraudulent concealment is a form of misrepresentation entitling a
claimant to damages or rescission of a contract. Friedland v. Gales, 131 N.C. App.
802, 807, 509 S.E.2d 793, 797 (1998). The elements of fraudulent concealment are
(1) concealment of a “[past or existing] material fact, (2) reasonably calculated to
deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting
in damage to the injured party.” Hardin v. KCS Int’l., Inc. 199 N.C. App. 687, 696,
682 S.E.2d 726, 733 (2009) (alteration in original). Where the misrepresentation
claim is based on a failure to disclose a material fact, the plaintiff must show the
defendant owed him a duty to disclose, “as silence is fraudulent only when there is a
duty to speak.” Lawrence v. UMLIC-Five Corp., 2007 NCBC LEXIS 20, at *8 (N.C.
Super. Ct. June 18, 2007).
{30} This Court has previously ruled that to specifically plead an omission-
based claim, a litigant must allege
(1) the relationship between plaintiff and defendant giving rise to the
duty to speak; (2) the event that triggered the duty to speak or the
general time period over which the relationship arose and the fraud
occurred; (3) the general content of the information that was withheld
and the reason for its materiality; (4) the identity of those under a duty
who failed to make such disclosures; (5) what the defendant gained
from withholding the information; (6) why the plaintiff’s reliance on
the omission was reasonable and detrimental; and (7) the damages the
fraud caused the plaintiff.
Island Beyond, LLC v. Prime Capital Grp., LLC, 2013 NCBC LEXIS 48, at *19
(N.C. Super. Ct. Oct. 30, 2013) (quotations and alterations omitted) (citing
Lawrence, 2007 NCBC LEXIS 20, at *9 (adopting requirements set out in Breeden
v. Richmond Cmty. Coll., 171 F.R.D. 189, 195 (M.D.N.C. 1997))).
{31} In order to impose a duty to disclose, a plaintiff must demonstrate
either that: (1) there is a fiduciary relationship between the parties to the
transaction; (2) “a party has taken affirmative steps to conceal material facts from
the other;” or (3) “one party has knowledge of a latent defect in the subject matter of
the negotiations about which the other party is both ignorant and unable to discover
through reasonable diligence.” Harton v. Harton, 81 N.C. App. 295, 297, 298, 344
S.E.2d 117, 119 (1986).
{32} Plaintiff contends that Defendants had a duty to speak because
Christenbury “did not have an equal ability to ascertain that Medflow had further
developed, modified and sold the Enhancements, and derivatives thereof, and
received fees therefrom – all information [was] uniquely within the knowledge of
Mr. Riggi and Medflow.” (Verified Compl. ¶ 38.) Christenbury further argues that
a duty to speak can arise from contract, citing Oberlin Capital. 147 N.C. App. at 59,
554 S.E.2d at 846 (“A person’s obligation or duty to act may flow from explicit
requirements, i.e. [sic], statutory or contractual, or may be implied from attendant
circumstances.” (internal quotation and citation omitted)). But here, if there was a
duty to speak imposed by contract, it was clear to Christenbury that the duty had
been breached when the first report and minimum payment was due.
{33} The Court then need not decide whether the Agreement imposed a
duty to speak, as the failure to adhere to any such duty was clear to Christenbury
outside the limitations period.
{34} Further, the Verified Complaint contains no allegations supporting
any potential finding that Defendants made representations to induce Christenbury
not to assert rights under the Agreement or on which Christenbury relied when
refraining from taking action. “[W]hen the party relying on the false or misleading
representation could have discovered the truth upon inquiry, the complaint must
allege that he was denied the opportunity to investigate or that he could not have
learned the true facts by exercise of reasonable diligence.” Id. at 60, 554 S.E.2d at
847 (quoting Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 346, 511 S.E.
2d 309, 313 (1998)).
{35} Seeking to satisfy this requirement, Christenbury contends that the
relevant information was “uniquely within the knowledge of Mr. Riggi and
Medflow” (Verified Compl. ¶ 38), supporting the conclusion that Christenbury did
not have the ability to discover the truth, excusing any further requirement to
investigate, to allege that it was denied an opportunity to investigate, or to allege
that reasonable diligence would not have revealed the true facts. Essentially, the
argument is that Defendants’ failure to make royalty payments was equivalent to a
representation that no sales had been made. However, that argument is defeated
by the fact that the Agreement required a report and minimum annual royalty
payments whether or not sales had occurred. Moreover, Plaintiff took no action
upon Defendants’ failure to make a report or to pay minimum royalties. These facts
do not excuse Christenbury’s failure to make an inquiry merely because Defendants
might have additional information that was uniquely within their knowledge.
{36} The Court need not rely on the fact that the information concerning
actual sales of the platform and Enhancements was published in a May 2002
Ophthalmology Management article. (Verified Compl. ¶ 18.) Indeed, Christenbury
indicated that it had no knowledge of this article at the time it was published. The
article’s existence would, however, suggest that there was independent public
information available to Christenbury had it chosen to make an inquiry when it did
not receive reports or royalty payments pursuant to the Agreement. The
publication of at least some of this information also undermines Plaintiff’s
allegation that it was “uniquely within the knowledge of Mr. Riggi and Medflow.”
(Verified Compl. ¶ 38.)
{37} In sum, the Verified Complaint fails to state a claim for fraudulent
concealment. Eastway Wrecker Serv. v. City of Charlotte, 165 N.C. App. 639, 645,
599 S.E.2d 410, 414 (2004) (“If the complaint fails to allege that the plaintiff was
denied the opportunity to investigate or that the plaintiff could not have learned the
true facts by exercise of reasonable diligence, the complaint fails to state causes of
action for fraudulent concealment and negligent misrepresentation.”) (internal
quotation and alteration marks omitted).
{38} Even if the Verified Complaint were adequate to state a claim, it would
be time-barred. The statute of limitations governing a fraud claim is three years
and begins to run from the time the claimant should have discovered the facts
constituting the fraud. N.C. Gen. Stat. § 1-52(9). Plaintiff was on inquiry notice by
no later than November 2000 that Defendants were not performing any of their
obligations under the Agreement.

C. UDTP Claim

{39} Christenbury reiterates its breach of contract claim and fraudulent
concealment claim as a UDTP claim. The Verified Complaint demonstrates no
aggravating circumstances adequate to raise the breach of contract claim to a
UDTP violation. See Gray v. N.C. Ins. Underwriting Ass’n, 352 N.C. 61, 75, 529
S.E.2d 676, 685 (2000) (noting that a party must show “substantial aggravating
circumstances attendant to the breach”) (citing Branch Banking & Trust, 107 N.C.
App. at 62, 418 S.E.2d at 700 (1992) (“[A] mere breach of contract, even if
intentional, is not sufficiently unfair or deceptive to sustain [a UDTP action].”))).
{40} Further, any UDTP claim is also time-barred by the four-year statute
of limitations governing such claims. N.C. Gen. Stat. § 75-16.2 (2014). The
limitations period for UDTP claims based on fraud and contract accrue when the
claimant had notice of the breach or fraud. Pembee Mfg. Corp., 313 N.C. at 493
S.E.2d at 354 (holding UDTP claim based on breach of contract accrues when
claimant “becomes aware or should reasonably have become aware of the existence
of the injury”); Nash v. Motorola Comm’cns & Elecs., Inc., 96 N.C. App. 329, 331,
385 S.E.2d 537, 538 (1989) (holding UDTP claims based on fraud accrue “at the
time the fraud is discovered or should have been discovered with the exercise of
reasonable diligence.”).
{41} As discussed above, Plaintiff should have reasonably become aware of
the existence of its injury or the alleged misrepresentation shortly after October 20,
2000, when the first minimum royalty payment was due. Plaintiff did not file suit
until almost fourteen years later. Accordingly, the UDTP claim is time-barred.

D. Unjust Enrichment

{42} Where a party has entered into an express contract concerning the
subject matter of the dispute, the party is precluded from equitable recovery in
quantum meruit. Ron Medlin Constr. v. Harris, 364 N.C. 577, 585–86, 704 S.E.2d
486, 492 (2010). Here, Plaintiff’s own allegations demonstrate that the claim arises
from an express contract concerning the platform and Enhancements. (Verified
Compl. ¶ 31). Further, this claim, even if otherwise valid, is likely time-barred for
the same reason the statute of limitations has run on the breach of contract claim.
See N.C. Gen. Stat. § 1-52(1).
V. CONCLUSION

{43} For the foregoing reasons, the Motions are granted. Plaintiff’s Verified
Complaint is DISMISSED.

IT IS SO ORDERED this the 19th day of June, 2015.

/s/ James L. Gale
James L. Gale
Chief Special Superior Court Judge
for Complex Business Cases