F-1 LEGACY OWNER, LLC v. LEGACY AT JORDAN LAKE HOMEOWNERS ASS'N, 2023 NCBC 30

STATE OF NORTH CAROLINA
WAKE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 9247
F-L LEGACY OWNER, LLC,
Plaintiff,
v.
THE LEGACY AT JORDAN LAKE
HOMEOWNERS ASSOCIATION,
INC., Defendant/
Counterclaim
Plaintiff,
v.
F-L LEGACY OWNER, LLC,
FREEHOLD CAPITAL
MANAGEMENT, LLC, THOMAS C.
TISCHER, STAN BROWN,
ANDREW T. SMITH, and MICHAEL
McCOLLUM,
Counterclaim
Defendants.
ORDER AND OPINION ON
COUNTERCLAIM DEFENDANTS’
MOTION TO DISMISS
1. 	THIS MATTER is before the Court on Counterclaim Defendants F-L
Legacy Owner, LLC (“F-L Legacy”), Freehold Capital Management, LLC (“Freehold”),
Thomas C. Tischer (“Tischer”), Stan Brown (“Brown”), Andrew T. Smith (“Smith”),
and 	Michael 	McCollum’s 	(“McCollum”; 	collectively, 	the 	“Freehold 	Defendants”)
Motion to Dismiss1 (the “Motion”) certain counterclaims in Counterclaim Plaintiff
The Legacy at Jordan Lake Homeowners Association, Inc.’s (the “HOA”) Answer and
Affirmative Defenses to Plaintiff’s Complaint and Counterclaim (the “Answer and
1 (ECF No. 19.)
F-1 Legacy Owner, LLC v. Legacy at Jordan Lake Homeowners Ass’n, 2023 NCBC 30.

Counterclaim”)2 pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure (the “Rule(s)”), filed on 5 December 2022 in the above-captioned case. After
considering the Motion, the parties’ briefs in support of and in opposition to the
Motion, the relevant pleadings, and the arguments of counsel at the hearing on the
Motion, the Court hereby GRANTS in part and DENIES in part the Motion as set
forth below.
Parker Poe Adams & Bernstein, LLP, by Eric H. Cottrell and Russell
Killen, for Plaintiff/Counterclaim Defendant F-L Legacy Owner, LLC
and Counterclaim Defendants Freehold Capital Management, LLC,
Thomas 	C. 	Tischer, 	Stan 	Brown, 	Andrew 	T. 	Smith, 	and 	Michael
McCollum.
Morningstar Law Group, by William J. Brian, Jr. and Harrison M.
Gates, and Cranfill Sumner, LLP, by RaShawnda Murphy Williams, for
Defendant/Counterclaim 	Plaintiff 	The 	Legacy 	at 	Jordan 	Lake
Homeowners Association.
Bledsoe, Chief Judge.
I.
FACTUAL AND PROCEDURAL BACKGROUND
2. 	The Court does not make findings of fact when ruling on a motion to dismiss
under 	Rule 	12(b)(6). 	Rather, 	the 	Court 	recites 	the 	allegations 	asserted 	and
documents referenced in the challenged pleading—here, Defendant’s Answer and
Counterclaim—that are relevant to the Court’s determination of the Motion.
2 (ECF No. 7.) 	The Court shall hereafter cite the Counterclaim portion of the Answer and
Counterclaim as the “Counterclaims” for ease of reference.

3. 	The Legacy at Jordan Lake (the “Community”) is a residential subdivision
located in Chapel Hill, North Carolina.3
4. 	F-L 	Legacy 	is 	“a 	wholly-owned 	subsidiary 	of 	Freehold 	or 	companies
affiliated with, related to, or controlled by Freehold or by Freehold’s members,
managers, or officers” and uses all monies it collects for the benefit of Freehold and
its affiliates.4 F-L Legacy was the Community’s developer from 23 April 2014 until
31 December 2020.5
5. 	The HOA is the Community’s homeowner’s association and is a North
Carolina nonprofit corporation formed to maintain the Community’s common areas.6
6. 	The Community is subject to a Declaration of Covenants, Conditions, and
Restrictions (the “Declaration”),7 which “imposes upon [the real property comprising
the 	Community] 	mutually 	beneficial 	restrictions 	under 	a 	general 	plan 	of
3 The HOA alleges that the Community is a “Planned community” as defined in the North
Carolina Planned Community Act (the “NCPCA”), N.C.G.S. § 47F-1-103(23). 	(See Def.’s
Answer and Affirmative Defenses Pl.’s Compl. and Countercl., ECF No. 7, ¶¶ 13, 17.)
Defendant’s Answer to Plaintiff’s allegations and Defendant’s Counterclaim are numbered
separately within ECF No. 7. Accordingly, citations to paragraph numbers shall be to either
the “Answer” or “Countercl.,” as appropriate.
4 (Countercl. ¶¶ 25, 26.)
5 (Countercl. ¶¶ 19–22, 48.)
6 (Countercl. ¶¶ 1, 13–14.)
7 (See generally Countercl. Ex. 1 [hereinafter “Declaration”].) 	Defendant alleges that the
Declaration constitutes a “Declaration” as defined in the NCPCA. 	See N.C.G.S. § 47F-1-
103(10); (Countercl. ¶ 16).

improvement for the benefit of the owners of each portion of [the real property
comprising the Community].”8
7. 	Under the Declaration, the “Declarant”—which initially was the original
developer of the Community—is granted numerous rights and obligations.9 	The
Declaration also vests the HOA with various rights and obligations.10 Among these
are the HOA’s right to have Class A Members and a sole Class B Member.11 Class A
members are all those persons who hold record title to any Unit12 in the Community
that are not the Class B member.13 	The Class B member is the Declarant, which,
beginning on 23 April 2014, was F-L Legacy.14
8 (Countercl. ¶ 16; Declaration.)
9 (Declaration Art. 13.) Defendant alleges that the original developer was a “Declarant” as
defined in the NCPCA. See N.C.G.S. § 47F-1-103(9); (Countercl. ¶ 18).
10 (See generally Declaration Art. 4.)
11 (Declaration Arts. 3.2(a)–(b).) Although the Declaration refers to Class “A” and Class “B”
members, the Court has elected to omit the quotation marks surrounding A and B in this
Order and Opinion.
12 “Unit” is defined in the Declaration as
[a] portion of the Properties legally subdivided pursuant to one of the Plats,
whether improved or unimproved, which may be independently owned and
conveyed and which is intended for development, use, and occupancy as an
attached or detached residence for a single family. The term shall refer to the
land, if any, which is part of the Unit as well as any improvements thereon.
(Declaration Art. 1.47.)
13 (Declaration Arts. 1.34, 3.2(a).)
14 (Declaration Art. 3.2(b); Countercl. ¶¶ 22, 28.)

8. 	The Declaration provides for a “Class B Control Period,” during which the
Class B Member has the right to appoint a majority of the HOA’s directors.15 	The
Class B Control Period was in effect when F-L Legacy became the Declarant in 2014
and, according to the HOA, terminated under the Declaration’s terms on 31 December
2020.16
9. 	Pursuant to its authority as Declarant under the Declaration, F-L Legacy
appointed Tischer, Brown, and Smith as the Association’s three and only directors on
or about 1 June 2014.17 According to the HOA, each of these directors was an officer
and director of Freehold throughout the period F-L Legacy served as the Declarant.
Tischer was an owner and co-founder of Freehold, and throughout the relevant
period, he and Brown were principals of Freehold while Smith served as Freehold’s
Senior Vice President for Development Operations.18 	At the same time and in
accordance with the HOA’s bylaws, the three Freehold-affiliated directors elected
Tischer as the HOA’s president, Brown as the HOA’s vice president, and Smith as the
HOA’s secretary and treasurer.19
15 (Declaration Arts. 1.10, 3.2.)
16 (Countercl. ¶¶ 30, 48; Declaration Art. 3.2(b)(ii).)
17 (Countercl. ¶ 31.)
18 (Countercl. ¶¶ 7–9.)
19 (Countercl. ¶ 33.) The HOA’s bylaws provide that the HOA’s officers shall be a president,
vice president, secretary, and treasurer and shall be elected by the HOA’s board of directors.
(See Declaration Ex. C Art. 4.1 [hereinafter “Bylaws”].)

10. 	On or about 21 May 2019, Tischer resigned as an officer and director, and
McCollum, one of Freehold’s division presidents, was appointed to replace him.20
Brown, Smith, and McCollum, acting as the HOA’s sole directors, then elected Brown
as the HOA’s president, Smith as its vice president, and McCollum as the HOA’s
secretary and treasurer during the remainder of the relevant period.21
11. 	According to Plaintiff, when the Class B Control Period ended, Brown,
Smith, and McCollum should have held an election in which the Class A members
elected a new board of directors with a majority of Class A members. But rather than
hold an election, the HOA alleges that Brown, Smith, and McCollum improperly
remained as directors and officers of the HOA until 17 August 2021.22
12. 	Through this lawsuit, the HOA challenges certain actions Tischer, Brown,
Smith, and McCollum (collectively, the “Freehold Directors”) took while they served
as the HOA’s officers and directors that the HOA contends intentionally benefited
Freehold at the HOA’s expense in violation of the Freehold Directors’ fiduciary duties
to the HOA.23 Relevant to this contention is the Declaration’s requirement that the
HOA’s board of directors adopt a budget each year for the coming year’s “Common
Expenses.”24 	Those expenses are defined in the Declaration as those that are
20 (Countercl. ¶ 45.)
21 (Countercl. ¶¶ 10, 45.)
22 (Countercl. ¶¶ 48–51; see Bylaws Art. 3.5(b).)
23 (Countercl. ¶¶ 116–53.)
24 (Declaration Art. 8.3; Bylaws Art. 3.19(a).)

incurred or are anticipated to be incurred by the HOA “for the general benefit of all
Owners, including any reasonable reserve[.]”25
13. 	Under the Declaration, the budget is funded by “General Assessments”
levied against all occupied units “at a level which is reasonably expected to produce
total income for the [HOA] equal to the total budgeted Common Expenses, including
reserves.”26 	During the Class B Control Period, F-L Legacy, as the Declarant, was
required to pay, for each Unit that it owned, an assessment equal to 50% of the
assessment paid by the other Unit owners, as well as, at its election, “either to pay
an amount equal to its regular assessment amount on all of its unsold Units or to pay
the difference in the amount of the assessments levied on all other Units subject to
assessment and the amount of actual expenditures by the [HOA] during the fiscal
year.”27 The HOA alleges that once the Class B Control Period ended, the Declaration
required F-L Legacy, as Declarant, to pay the same assessment for each Unit it owned
as all other owners but that it would not owe any assessments if it no longer owned
any Units.28
14. 	By the Declaration’s terms, therefore, F-L Legacy was able to appoint the
HOA’s board of directors during the Class B Control Period, who then had the right
to determine the amount of Common Expenses, in turn the amount of General
25 (Declaration Art. 1.12.)
26 (Declaration Art. 8.3.)
27 (Declaration Art. 8.2.)
28 (Countercl. ¶¶ 34–38.)

Assessments, and ultimately the amount that F-L Legacy had to pay in assessments.
The HOA alleges that the Freehold Directors intentionally set the amount of
“Common Expenses” below the level of anticipated actual expenses in order to lower
F-L Legacy’s required assessments and then funded the resulting budget shortfall by
causing the HOA to issue promissory notes (the “Notes”) to F-L Legacy that the
Freehold Directors caused to mature after F-L Legacy no longer owned any Units and
had no further assessment obligations.29 	These Notes required the HOA to pay all
principal balances by their due dates and set a per-annum interest rate of 12% on
any unpaid principal.30 Most of the Notes were authorized in writing without an in-
person board meeting.31
29 (Countercl. ¶¶ 37–40.) The specific notes at issue in this litigation are: (i) a $65,000 note
issued in October 2014 with an original maturity date of 31 December 2018, which was later
extended to 31 December 2021 (the “October 2014 Note”) (Countercl. ¶¶ 41, 53; Am. Compl.
¶¶ 5–8, ECF No. 36; Verified Compl. Exs. A–C, ECF No. 3); (ii) a $65,000 note issued in
March 2015 with an original maturity date of 31 December 2019, which was later extended
to 31 December 2023 (the “March 2015 Note”) (Countercl. ¶¶ 42, 54; Am. Compl. ¶¶ 13–15,
Exs. D–F, ECF No. 36.1); (iii) a $40,000 note issued in December 2017 with an original
maturity date of 31 December 2021, which was later extended to 31 December 2023 (the
“December 2017 Note”) (Countercl. ¶¶ 43, 55; Am. Compl. ¶¶ 20–21, Exs. G–H, ECF No.
36.1); (iv) a $185,788.30 note issued in September 2018 with a maturity date of 31 December
2022 (the “September 2018 Note”) (Am. Compl. ¶ 26, Ex. I, ECF No. 36.1); (v) a $102,539.41
note issued in August 2019 with a maturity date of 31 December 2023 (the “August 2019
Note”) (Countercl. ¶ 46; Am. Compl. ¶ 31, Ex. J, ECF No. 36.1); and (vi) a $67,171.26 note
issued in October 2020 with a maturity date of 31 December 2024 (the “October 2020 Note”)
(see Countercl. ¶ 47; Am. Compl. ¶ 36, Ex. K, ECF No. 36.1).
30 (Am. Compl. Exs. A, D, G, I, J, K.)
31 (Countercl. ¶¶ 42–47.)

15. 	F-L Legacy initiated this action on 1 August 2022 to recover all sums due on
the October 2014 Note and subsequently filed an Amended Complaint on 8 March
2023 seeking to recover the sums due on the other Notes as well.32
16. 	The HOA filed its Answer and Counterclaim in response to F-L Legacy’s
original complaint on 3 October 2022,33 asserting among the seventeen causes of
action listed in the Counterclaims, (i) six separate counterclaims for breach of
fiduciary duty, each based on a specific Note, against the Freehold Directors who
approved the issuance of each Note (Counts 1–6);34 and (ii) an action for an accounting
against the Freehold Defendants to detail the HOA’s receipts and expenditures
during the period the Freehold Directors served on the HOA’s board (Count 8).35
17. 	The Freehold Defendants filed the Motion to Dismiss on 5 December 2022,
seeking the dismissal of Counts 1–6 and 8 of the HOA’s Counterclaims. 	After full
briefing, the Court held a hearing on the Motion on 14 February 2023, at which all
parties were represented by counsel. The Motion is now ripe for resolution.
32 (ECF No. 36.)
33 (ECF No. 7.)
34 (Countercl. ¶¶ 116–48.) Counts 1–4 are based on the October 2014, March 2015, December
2017, and September 2018 Notes, respectively, and are against Tischer, Brown, and Smith.
Counts 5 and 6 are based on the August 2019 and October 2020 Notes and are against Brown,
Smith, and McCollum.
35 (Countercl. ¶¶ 154–59.)

II.
LEGAL STANDARD
18. 	Under Rule 12(b)(6), “the [challenged pleading] is construed liberally,
viewing the allegations as true and in the light most favorable to the non-moving
party, and the claim is not dismissed unless it appears beyond doubt that the [non-
moving party] could prove no set of facts in support of [its] claim which would entitle
[it] to relief.” 	Krawiec v. Manly, 370 N.C. 602, 618 (2018) (cleaned up). 	While “the
well-pleaded material allegations of the [challenged pleading] are taken as true[,]
conclusions of law or unwarranted deductions of fact are not admitted.” 	Azure
Dolphin, LLC v. Barton, 371 N.C. 579, 599 (2018).
19. 	Dismissal 	under 	Rule 	12(b)(6) 	is 	proper 	when 	“ ‘(1) 	the 	[challenged
pleading] on its face reveals that no law supports [its claims]; (2) the [pleading] on its
face reveals the absence of facts sufficient to make a good claim; or (3) the [pleading]
discloses some fact that necessarily defeats the [non-moving party’s] claim.’ ” Corwin
v. British Am. Tobacco, PLC, 371 N.C. 605, 615 (2018) (quoting Wood v. Guilford
Cnty., 355 N.C. 161, 166 (2002)).
III.
ANALYSIS
A. 	Counts 1–6—Breach of Fiduciary Duty Counterclaims Based on the Notes
20. 	The HOA argues that the Freehold Directors acted in their own self-
interests and breached their fiduciary duties as directors of the HOA by first
approving General Assessments after 2014 in an amount less than total budgeted

Common Expenses, including reserves, and later by eliminating the resulting budget
deficits by causing the HOA to borrow funds from F-L Legacy that the HOA would
not repay until after F-L Legacy was no longer subject to assessments as a Unit
owner.36 Through this stratagem, the HOA avers, the Freehold Directors shifted the
financial burden of supporting the HOA from F-L Legacy to the HOA and its future
members.37 The HOA contends that these actions were intended to benefit, and did
benefit, Freehold and caused injury to the HOA.38 As a result, the HOA alleges, the
Freehold Directors breached their fiduciary duties to the HOA by acting to further
Freehold’s best interests at the expense of the HOA.39
21. 	The Freehold Directors argue in opposition that their actions complied with
the Declaration and benefitted the HOA by keeping the General Assessments for
existing owners low until those assessments could be spread over a greater number
of owners, which did not harm the HOA and its individual members.40 As such, they
contend that the transaction was entirely fair to the HOA and that Counts 1–6 of the
HOA’s Counterclaims should be dismissed.41
36 (See Def. Countercl. Pl. The Legacy at Jordan Lake Homeowners Association’s Mem. Resp.
Countercl. Defs.’ Mot. Dismiss 6–8 [hereinafter “Br. Opp’n”], ECF No. 26.)
37 (Br. Opp’n 8.)
38 (See Br. Opp’n 6–9.)
39 (Br. Opp’n 3.)
40 (See Mem. Law Supp. F-L Legacy Owner LLC, Freehold Capital Management, LLC,
Thomas C. Tischer, Stan Brown, Andrew T. Smith, and Michael McCollum’s Mot. Dismiss 4–
7 [hereinafter “Br. Supp.”], ECF No. 20.)
41 (See generally Br. Supp.)

22. 	Under 	North 	Carolina 	law, 	each 	Freehold 	Director 	was 	required 	to
discharge his or her duties to the HOA: “(1) In good faith; (2) With the care an
ordinarily 	prudent 	person 	in 	a 	like 	position 	would 	exercise 	under 	similar
circumstances; and (3) In a manner the director reasonably believe[d] to be in the
best interests of the corporation.” 	N.C.G.S. § 55A-8-30(a). 	Even if the Directors’
conduct in setting Common Expenses and General Assessments and in incurring debt
to make up for budget shortfalls was permitted under the Declaration as they
contend, the Freehold Directors were still “under a statutory mandate to act in good
faith and not to engage in any self[-]dealing.” Freese v. Smith, 110 N.C. App. 28, 38
(1993).
23. 	After careful review, the Court concludes that the HOA has alleged facts
that, if taken as true, show that the Freehold Directors engaged in conduct with the
intent and effect of benefitting Freehold at the expense of the HOA. 	As such, the
HOA’s allegations permit a factfinder to conclude that the Freehold Directors were
involved in self-dealing, see, e.g., Self-Dealing, Black’s Law Dictionary (10th ed. 2014)
(defining “self-dealing” as “[p]articipation in a transaction that benefits oneself
instead of another who is owed a fiduciary duty”), and in conflict of interest
transactions, see N.C.G.S. § 55A-8-31(a) (“A conflict of interest transaction is a
transaction with the corporation in which a director of the corporation has a direct or
indirect interest.”).
24. 	By statute, a transaction is not voidable “solely because of the director’s
interest” if the board approved or ratified the transaction with knowledge of the

material facts, if the members entitled to vote approved or ratified the transaction
with knowledge of the material facts, or if the transaction was fair to the corporation.
See N.C.G.S. § 55A-8-31(a). 	Because the HOA has pleaded facts showing that all
board members were interested in the challenged transactions and that the HOA
members did not approve or ratify any of the board’s decisions, the issue for the Court
on the Motion is whether, applying the appropriate standards to the pleaded facts, it
can conclude as a matter of law that the challenged transactions were entirely fair to
the HOA. The Court concludes that it cannot.
25. 	To begin, whether a transaction is entirely fair depends on “the facts and
circumstances as they were known or they should have been known at the time the
transaction was entered into.” 	Ehmann v. Medflow, Inc., 2017 NCBC LEXIS 88, at
*53 (N.C. Super. Ct. Sept. 26, 2017) (quoting N.C.G.S. § 55-8-31, cmt. 4). Where, as
here, the party challenging the transaction pleads that it was approved by interested
directors, the burden of proof as to the transaction’s entire fairness lies with the party
seeking to sustain the transaction—in this instance, F-L Legacy.42 	See Highland
Cotton Mills v. Ragan Knitting Co., 194 N.C. 80, 88 (1927) (“[W]here the fairness of
[conflicted] transactions is challenged, the burden is upon those who would maintain
them to show their entire fairness[.]”); Ehmann, 2017 NCBC LEXIS 88, at *46;
42 For this burden-shifting to apply, a conflict of interest must be adequately pleaded. See,
e.g., Scott v. Lackey, 2012 NCBC LEXIS 60, at *32 (N.C. Super. Ct. Dec. 3, 2012) (reasoning
that by showing that a majority of board members had a financial interest in a transaction,
the business judgment rule was rebutted, and the entire fairness standard of review was
applicable, which consequently shifted the burden to the transaction’s proponents). As stated
above, the Court concludes that the HOA has pleaded facts showing that the Freehold
Directors engaged in conflict-of-interest transactions by approving the issuance of the Notes.

Russell M. Robinson II, Robinson on North Carolina Corporation Law § 14.06 n.7 (7th
ed. 2022) (“Whenever a material transaction of any nature is challenged as involving
self-dealing or some other conflict of interest with a . . . party dominating the
corporation’s action, the transaction must substantively pass the test of ‘entire
fairness,’ and procedurally, the burden of persuasion shifts to the directors or others
defending the transaction.”).
26. 	For that reason, motions to dismiss are rarely granted where an entire
fairness analysis is required. 	See, e.g., Scott, 2012 NCBC LEXIS 60, at *32
(concluding that since the entire fairness standard shifts the burden to the defendant,
a plaintiff can survive a 12(b)(6) motion by sufficiently pleading that a transaction
was self-interested); see also Salladay v. Lev, 2020 Del. Ch. LEXIS 78, at *1 (Del. Ch.
Feb. 27, 2020) (“It is nearly . . . axiomatic that, where entire fairness is the standard
of review, a motion to dismiss is rarely granted [ ] because review under entire
fairness requires a record to be meaningful.”).
27. 	Here, the HOA has sufficiently pleaded facts that, when taken as true, show
that the Freehold Directors have engaged in a series of self-interested transactions
in violation of their fiduciary duties by shifting to the HOA and its future members
the financial burden F-L Legacy would have otherwise shouldered. 	The burden is
thus on the Freehold Directors to show that, based on the HOA’s pleading, the Notes
were entirely fair to the HOA as a matter of law.
28. 	The Freehold Directors attempt to carry their burden by arguing that the
HOA has not suffered any harm from the transactions. 	But even if that were so,

viewing the Counterclaim allegations in the light most favorable to the HOA, the
Court cannot conclude as a matter of law, in light of all “the facts and circumstances
as they were known or . . . should have been known at the time the transaction[s
were] entered into,” Ehmann, 2017 NCBC LEXIS 88, at *53, that the issuance of the
Notes “carrie[d] the earmarks of an arm’s length bargain,” Hill v. Erwin Mills, Inc.,
239 N.C. 437, 444 (1954), or that the Notes “might have been entered into at arm’s
length by disinterested persons,” Ehmann, 2017 NCBC LEXIS 88, at *52. 	To the
contrary, the transactions as pleaded permit a factfinder to conclude that the
Directors used the HOA for their own purposes and in a way that disinterested
directors would not have authorized.
29. 	As a result, the Court concludes that the Freehold Defendants have not
shown as a matter of law that the conflict-of-interest transactions in which they
engaged were entirely fair to the HOA based on the allegations of the Counterclaims
and its attachments. Their Motion must therefore be denied as to Counts 1–6.
B. 	Count 8—Counterclaim for Accounting
30. 	The Freehold Defendants move to dismiss the HOA’s counterclaim for
accounting (Count 8) on grounds that an accounting is a remedy and not a cause of
action.43 While Defendants are correct that the HOA’s purported counterclaim is not
properly captioned as a cause of action, see, e.g., Elhulu v. Alshalabi, 2021 NCBC
LEXIS 44, at *20 (N.C. Super. Ct. Apr. 29, 2021) (an equitable accounting “is a
remedy, not an independent cause of action”), the Court is nevertheless satisfied that
43 (Br. Supp. 7–8.)

the HOA has pleaded facts in support of its counterclaims for unjust enrichment,
breach of fiduciary duty, and constructive fraud that would, if proven, permit a court
to order an equitable accounting. 	See, e.g., Starling v. Alexander Place Townhome
Ass’n, 2010 N.C. App. LEXIS 488, at *10 (N.C. Ct. App. Mar. 16, 2010) (“An
accounting is an equitable remedy, usually sought pursuant to claims of constructive
fraud or breach of fiduciary duty.”); Pender v. Bank of Am. Corp., 788 F.3d 354, 364
(4th Cir. 2015) (“An accounting for profits is a restitutionary remedy based upon
avoiding unjust enrichment.” (cleaned up)); see generally Howard v. IOMAXIS, LLC,
2022 NCBC LEXIS 146, at *22 (N.C. Super. Ct. Dec. 5, 2022) (“The scope and depth
of the remedy of equitable accounting depends on the nature of the harm and the
information necessary to remedy that harm. An equitable accounting can be specific
and deep, or it can be general and cover a breadth of information.”).
31. 	As a result, the Court will grant the Freehold Defendants’ motion as to
Count 8 of the HOA’s Counterclaims and dismiss the HOA’s action for an accounting
to the extent it is asserted as an independent cause of action, but without prejudice
to the HOA’s right to pursue the equitable accounting remedy to the extent one or
more of its causes of action may warrant that relief.
IV.
CONCLUSION
32. 	WHEREFORE, 	the 	Court, 	for 	the 	reasons 	set 	forth 	above, 	hereby
ORDERS as follows:

a. 	The 	Motion 	is 	hereby 	DENIED 	as 	to 	Counts 	1–6 	of 	the 	HOA’s
Counterclaims; and
b. 	The 	Motion 	is 	hereby 	GRANTED 	as 	to 	Count 	8 	of 	the 	HOA’s
Counterclaims and that Count is hereby DISMISSED without prejudice
to the HOA’s right to pursue the equitable accounting remedy against the
Freehold Defendants to the extent one or more of its counterclaims may
justify that remedy.
SO ORDERED, this the 3rd day of April, 2023.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge