KNOWLES v. CONERLY, 2024 NCBC 68

STATE OF NORTH CAROLINA
PENDER COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23 CVS 1033
DAVID G. KNOWLES, BRITTANY
KNOWLES, NARVILE O. PARKS,
SUSAN P. PARKS, ALLISON
HAMRICK, CHAD K. PARKS, SUSAN
M. PARKS, BILLY RAY RAMSEY,
GAIL M. RAMSEY, BROOK HOLLEY,
JACK BATTLEWELLS HOLLEY,
WILLIAM CARR MATTHEWS, GINA
MATTHEWS, LISA BROWN, JOSEPH
BROWN, RANDY JONES, LYNNE
JONES, PHILLIP R. SHOLAR, and
AMY J. SHOLAR,
Plaintiffs,
v.
HOWARD JEFF CONERLY, as
Executor of the Estate of William Paul
Powell, Jr., and as Trustee of the
William Paul Powell, Jr. Revocable
Trust, CHAPEL BY THE BAY, INC., a
North Carolina Corporation, and SEA
MANOR ENTERPRISES, LLC, a
North Carolina Limited Liability
Company,
Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
1. 	This action arises from a controversy concerning the disposition of a
mobile home park (the “Park”) upon the death of William Paul Powell, Jr., formerly
a resident of Surf City, North Carolina. 	Plaintiffs, each of whom rents a lot in the
Park, assert that Mr. Powell intended to convey the Park, among other things, to
them upon his death. 	However, after Mr. Powell’s passing in September 2022,
Plaintiffs were informed that Mr. Powell’s church, Defendant Chapel by the Bay, Inc.
Knowles v. Conerly, 2024 NCBC 68.

(“the Church”), which inherited Mr. Powell’s membership in a limited liability
company, Defendant Sea Manor Enterprises, LLC (“the LLC”), now owns the Park.
This action followed.
2. 	The case is before the Court on Defendants Chapel by the Bay, Inc. and
Sea Manor Enterprises, LLC’s Motion for Judgment on the Pleadings pursuant to
Rule 	12(c) 	of 	the 	North 	Carolina 	Rules 	of 	Civil 	Procedure 	(“the 	Motion”),
(ECF No. 15).
3. 	Having considered the Motion, the related briefs, the relevant pleadings,
and the arguments of counsel at a hearing on the Motion held on 23 May 2024, the
Court hereby GRANTS in part and DENIES in part the Motion.
Rountree Losee LLP, by Stephen D. Coggins and Michael A. Becker, for
Plaintiffs David G. Knowles, Brittany Knowles, Narvile O. Parks, Susan
P. Parks, Allison Hamrick, Chad K. Parks, Susan M. Parks, Billy Ray
Ramsey, 	Gail 	M. 	Ramsey, 	Brook 	Holley, 	Jack 	Battlewells 	Holley,
William Carr Matthews, Gina Matthews, Lisa Brown, Joseph Brown,
Randy Jones, Lynne Jones, Phillip R. Sholar, and Amy J. Sholar.
Coastal Legal Counsel, by Aaron D. Lindquist, for Defendant Howard
Jeff Conerly, as Executor of the Estate of William Paul Powell, Jr., and
as Trustee of the William Paul Powell, Jr. Revocable Trust.
Ward and Smith, P.A., by Alex C. Dale and Isabelle M. Chammas, for
Defendants Chapel by the Bay, Inc., a North Carolina Corporation and
Sea 	Manor 	Enterprises, 	LLC, 	a 	North 	Carolina 	Limited 	Liability
Company.
Earp, Judge.

I. 	FACTUAL AND PROCEDURAL BACKGROUND
4. 	On a motion for judgment on the pleadings, the Court does not find facts.
It recites below the facts that are relevant to the Court’s determination of the Motion
as alleged in the pleadings. See, e.g., Erickson v. Starling, 235 N.C. 643, 657 (1952).
5. 	The LLC was organized under North Carolina law on 13 August 1999.
(Compl. ¶ 14, ECF No. 3.) 	Before his death, Mr. Powell was its sole member and
manager. (Compl. ¶¶ 17, 21.) The LLC owns four parcels of land in Surf City, North
Carolina. (Compl. ¶¶ 19–20, Exs. A–C.) The Park is situated on two of those parcels
and was managed by Mr. Powell on behalf of his LLC. (Compl. ¶¶ 21–22.)
6. 	The Park is divided into nine separate mobile home lots. (Compl. ¶ 22.)
For some time now, Plaintiffs have leased the lots pursuant to unwritten monthly
leases. 	(Compl. ¶ 23.) 	The arrangement also afforded them use of an adjacent lot
(the “Boat Trailer Storage Lot”), a boat ramp, and three docks. 	(Compl. ¶ 27.) 	One
of the docks is on the LLC’s property (the “Southern Dock”), and two more (the
“Northern Docks”) are located on a separate parcel owned by Mr. Powell personally
(the “Powell Lot”). (Compl. ¶ 24.)
7. 	To access the boat ramp and the Southern Dock, Plaintiffs have to cross
over the Boat Trailer Storage Lot. 	(Compl. ¶¶ 24–25, 37.) 	To access the Northern
Docks, Plaintiffs must cross the Boat Trailer Storage Lot and then proceed along the
shore edge of the Powell Lot. (Compl. ¶¶ 26, 37.)
8. 	Mr. Powell executed his will on 25 October 2011. 	(Compl. ¶ 39, Ex. E
[“Will”].) The Will provides:

A. Gift of Tangible Personal Property. All my tangible personal property
that was not held by me solely for investment purposes, including, but
not limited to, my automobiles, household furniture and furnishings,
clothing, jewelry, collectibles and personal effects, shall be disposed of
as follows:
1. I give all such tangible personal property to my church,
CHAPEL BY THE BAY, INC., Surf City, North Carolina.
****
C. Gift of Residuary Estate. 	I give my residuary estate, being all my
real and personal property, wherever located, not otherwise effectively
disposed of, but without exercising any power of appointment over
property that I may have, to the Trustee acting under that declaration
of trust instrument previously executed by me on the September 28,
1999, to be added to and disposed of under the provisions of that trust
instrument, including any amendments and restatements to it in effect
at the time of my death.
(Will ¶¶ A(1), C.) The Church is the lone trust beneficiary. (Answ. ¶ 51, ECF No. 6.)
9. 	On 30 May 2013, Mr. Powell executed a codicil to the Will (the “Codicil”).
(Compl. ¶ 42, Ex. F [“Codicil”].) The Codicil states:
I, William Paul Powell, Jr., a resident of Pender County, North Carolina,
declare that this is the codicil to my last will and testament which is
dated October 25, 2011.
I leave the following real property (real estate) to the mobile home
owners that have a mobile home in my mobile home park known as Sea
Manor Enterprises, LLC.
They are to continue to have access to the boat ramp and three piers
until they dispose of their mobile home, but this right will not pass to
their heirs.1
1 The Codicil also states: “Attached are copies of Sea Manor Enterprises, LLC Mobile Home
Park information along with copies of the Pender County and Town of Surf City real property
tax documents.” 	However, Plaintiffs allege that these documents are not attached to the
Codicil. (Compl. ¶ 49.)

10. 	Plaintiffs allege that they made extensive repairs and improvements to
their mobile homes and to the Southern and Northern Docks because Mr. Powell
assured them that “they had nothing to worry about and they would be taken care
of.” 	(Compl. ¶¶ 40–41, 44–45.) 	They allege that Mr. Powell executed the Codicil in
accordance with his intent that Plaintiffs benefit from these improvements after his
death. (Compl. ¶¶ 40, 42.) Thereafter, Plaintiffs allege that Mr. Powell continued to
reassure them that they had nothing to worry about and they would not lose their
investments. 	They allege that Mr. Powell told them he considered them to be like
family and appreciated that they had helped him over the years. (Compl. ¶ 45.)
11. 	Mr. 	Powell 	passed 	away 	on 	12 	September 	2022. 	(Compl. 	¶ 47.)
Following 	his 	death, 	Plaintiffs 	met 	with 	the 	executor 	of 	Mr. 	Powell’s 	estate,
Defendant Howard Jeff Conerly. 	(Compl. ¶ 51.) 	Plaintiffs allege that during this
meeting, Mr. Conerly stated that Mr. Powell left the property owned by the LLC to
Plaintiffs pursuant to the Codicil. 	(Compl. ¶ 51.) 	However, on 1 February 2023,
counsel for the Estate, Aaron Lindquist, sent a letter to Plaintiffs (the “February 1
Letter”) which stated:
After further review of Mr. Powell’s assets and holdings, I am writing to
you to let you know that the Chapel By The Bay Church inherited Mr.
William 	P. 	Powell, 	Jr.’s 	100% 	ownership 	interest 	in 	Sea 	Manor
Enterprises LLC.
****
The Codicil stated that it was leaving the property to the mobile home
owners, and not the ownership interest in the LLC. 	Mr. Powell’s
attempt to give this property to the mobile home owners through the
Codicil failed because he did not own the property at the time of his
death. His LLC did. Because the Church inherited the LLC, the Church

is now the sole owner of the LLC, and, therefore, the sole owner of this
real estate via the LLC.
(Compl. Ex. G.)
12. 	On 27 February 2023, Nathan Swartz (“Swartz”), the Senior Pastor of
the Church, sent Plaintiffs a letter informing them of their options going forward.
They could:
Mail the signed enclosed Lease Agreement and payment by April
1, 2023 with the four month total payment due in advance at ($250 per
Month) (April – July) by April 1, 2023 as described in the Lease
Agreement.
If a decision has been made to no longer be a Tenant . . . mail the
signed enclosed Lease Agreement marked Decline and send 60 day
payment by April 1, 2023.
(Compl. Ex. I (emphasis in original).) 	Because they contend they are the rightful
owners of the Park, Plaintiffs have not entered lease agreements with the Church.
They continue to have mobile homes in the Park, but they have not paid rent for some
period of time now. (Answ. ¶ 28.)
13. 	Plaintiffs initiated this action by filing the Complaint on 28 September
2023. The Complaint purports to (a) assert claims for breach of contract (against both
the LLC and Mr. Powell), unjust enrichment against the Church with respect to the
Northern Docks, and breach of the LLC’s operating agreement by the Church as its
manager, (b) request a judgment declaring either that Plaintiffs own the LLC and
have easement rights, or that the Codicil is ambiguous and should be construed as
bequeathing the LLC to Plaintiffs, and that the Court quiet title with respect to an
easement over the “riparian tracts,” and (c) seek imposition of a trust, reformation of

Mr. Powell’s Will, and treatment of the LLC—not as a separate entity—but as the
alter ego of Mr. Powell.2 (See generally Compl.)
14. 	The case was designated as a mandatory complex business case on
3 November 2023, (ECF No. 1), and assigned to the undersigned on 6 November 2023,
(ECF No. 2).
15. 	Defendants filed the Motion on 15 March 2024. 	After full briefing, the
Court held a hearing on the Motion on 23 May 2024. (Not. of Hr’g., ECF No. 22.) The
Motion is now ripe for disposition.
II. 	LEGAL STANDARD
16. 	When ruling on a Rule 12(c) motion, the Court views the factual
allegations and permissible inferences in the pleadings in the light most favorable to
the nonmoving party:
[a]ll well pleaded factual allegations in the nonmoving party’s pleadings
are taken as true and all contravening assertions in the movant’s
pleadings 	are 	taken 	as 	false. 	All 	allegations 	in 	the 	nonmovant’s
pleadings, 	except 	conclusions 	of 	law, 	legally 	impossible 	facts, 	and
matters not admissible in evidence at the trial, are deemed admitted by
the movant for purposes of the motion.
Ragsdale 	v. 	Kennedy, 	286 	N.C. 	130, 	137 	(1974) 	(citations 	omitted). 	“Legal
conclusions, however, are not entitled to a presumption of validity.” Charlotte Motor
Speedway, LLC v. Cnty. of Cabarrus, 230 N.C. App. 1, 6 (2013) (quoting Guyton v. FM
Lending Servs., Inc., 199 N.C. App. 30, 33 (2009)).
2 Plaintiffs’ ninth claim is not a claim for relief but is rather a “Motion for Preliminary
Injunction.” Business Court Rule (“BCR”) 7.2 requires a motion to be set out in a separate
document and accompanied by a brief. Because Plaintiffs have neither sought to be heard on
their purported motion nor complied with BCR 7.2, the Court does not address the motion
set forth as Plaintiffs’ ninth claim for relief.

17. 	The Court may consider documents that are the subject of the complaint
and to which the complaint specifically refers without converting the motion to one
for summary judgment. 	Weaver v. St. Joseph of the Pines, Inc., 187 N.C. App. 198,
204 (2007). This is true even if the document is presented by the defendant. Erie Ins.
Exch. v. Builders Mut. Ins. Co., 227 N.C. App. 238, 243 (2013) (holding that a
Rule 12(c) motion was not converted into one for summary judgment when an
insurance policy was attached to the defendant-insurer’s pleading because the
plaintiff referenced the policy in his complaint and it was the subject of the plaintiff’s
action). The Court may reject allegations contradicted by those documents. Laster v.
Francis, 199 N.C. App. 572, 577 (2009).
18. 	Judgment on the pleadings is intended to dispose of baseless claims, not
weak ones. Huss v. Huss, 31 N.C. App. 463, 469 (1976). Accordingly, “[t]he movant
is held to a strict standard[.]” Ragsdale, 286 N.C. at 137. A Rule 12(c) motion should
not be granted “unless the movant clearly establishes that no material issue of fact
remains to be resolved and that he is entitled to judgment as a matter of law.”
Carpenter v. Carpenter, 189 N.C. App. 755, 761 (2008).
III. 	ANALYSIS
A. Standing and Alternative Pleading
19. 	In addition to arguing that Plaintiffs’ pleading with respect to each claim
is insufficient as a matter of law, Defendants contend that the Complaint should be
dismissed in its entirety because (1) Plaintiffs lack standing, and (2) Plaintiffs’ claims
conflict with one another. (See Mem. Law Supp. Mot. for J. on Pleadings [“Defs.’ Br.

Supp.”] 10–13, ECF No. 16.) The Court addresses these preliminary arguments below
before moving to an analysis of each claim.
1. 	Standing
20. 	With respect to standing, Defendants contend that Plaintiffs have not
and cannot allege any injury. The Court disagrees.
21. 	“Standing refers to whether a party has a sufficient stake in an
otherwise justiciable controversy such that he or she may properly seek adjudication
of the matter.” 	Beachcomber Props., L.L.C. v. Station One, Inc., 169 N.C. App. 820,
823 (2005) (quoting Street v. Smart Corp., 157 N.C. App. 303, 305 (2003)). Standing
requires proof of an injury fairly traceable to the challenged action of the defendant
that will be redressed by a favorable decision. Id. (citing Neuse River Found., Inc. v.
Smithfield Foods, Inc., 155 N.C. App. 110, 114 (2002)).
22. 	Defendants argue that Plaintiffs do not have standing because they have
not identified an injury. 	They contend that any improvements Plaintiffs made to
their mobile homes have not been lost by virtue of not owning the real property on
which the mobile homes are situated because “[m]obile homes are just that—mobile
and fully capable of being moved when Plaintiffs choose.” 	Therefore, Defendants
conclude, Plaintiffs have suffered no injury. (Defs.’ Br. Supp. 11.)
23. 	The Court is unconvinced. 	Plaintiffs allege that, upon Mr. Powell’s
death, Mr. Conerly, the executor, informed them that they owned the real property
on which their mobile homes were parked. (Compl. ¶ 51.) Mr. Lindquist, the Estate’s
lawyer, later told them that they do not own the property. 	Plaintiffs brought this

action, asserting that they own the Park and are entitled to access the Boat Trailer
Storage Lot and Docks. Whether their mobile homes are “movable” is immaterial.
24. 	Accordingly, Defendants’ Motion on this basis is DENIED.
2. 	Rule 8(e)(2) and Alternative Pleading
25. 	Plaintiffs 	present 	alternative 	theories 	and 	claims 	regarding 	the
document that is identified in the pleadings as the Codicil. 	At times Plaintiffs
contend that the Codicil is a personal estate planning document, (Compl. ¶¶ 91–121
(sixth, seventh, and eighth claims)). At other times, Plaintiffs allege that the Codicil
is a contract, (Compl. ¶¶ 55–68 (first and second claims)), or possibly an operating
agreement, (Compl. ¶¶ 84–90 (fifth claim)). 	Defendants complain that “[a]ll of the
twists and flips in the Complaint about the nature and effect of the Codicil” subject
the Complaint to dismissal. (See Defs.’ Br. Supp. 13.) Again, the Court disagrees.
26. 	“[A] plaintiff is only required to set forth a short and plain statement of
the claim sufficiently particular to give the court and the parties notice of the
transactions, occurrences, or series of transactions or occurrences intended to be
proved showing that the pleader is entitled to relief.” Bandy v. Gibson, 2017 NCBC
LEXIS 66, at *12 (N.C. Super. Ct. July 26, 2017) (cleaned up); see also N.C. R. Civ. P.
8(a)(1).
27. 	Moreover, pursuant to Rule 8(e)(2) of the North Carolina Rules of Civil
Procedure:
A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one count or defense or in
separate counts or defenses. When two or more statements are made in
the alternative and one of them if made independently would be

sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. 	A party may also state as
many separate claims or defenses as he has regardless of consistency and
whether based on legal or on equitable grounds or on both.
N.C. R. Civ. P. 8(e)(2) (emphasis added); see also Concrete Serv. Corp. v. Invs. Grp.,
Inc., 79 N.C. App. 678, 684 (1986) (“There is no requirement that all claims be legally
consistent.”); James River Eqip., Inc. v. Mecklenburg Utils., Inc., 179 N.C. App. 414,
419 (2006) (“It is well-established that liberal pleading rules permit pleading in the
alternative, and that theories may be pursued in the complaint even if plaintiff may
not ultimately be able to prevail on both.” (cleaned up)). 	Furthermore, Rule 8(e)(2)
does not “provide[ ] for any particular form of phrasing alternative claims.” Oxendine
v. Bowers, 100 N.C. App. 712, 716 (1990).
28. 	It is apparent from the Complaint that Plaintiffs argue that the Codicil
is a key document but contend that its legal effect depends on whether it is an estate
document or simply evidence of a contract to convey real property. Advancing these
alternative theories is permitted by Rule 8. While Plaintiffs’ pleading is not a model
of clarity, “[t]he adoption of the notice theory of pleading indicated the legislature’s
intention that controversies be resolved on their merits . . . following an opportunity
of discovery, rather than resolving them on technicalities of pleading.” Wentz v. Unifi,
Inc., 89 N.C. App. 33, 38 (1988) (internal citation and quotation marks omitted).
Therefore, Defendants’ Motion on this basis is DENIED.

B. Breach of Contract (LLC)
29. 	Plaintiffs first allege that they entered into an agreement with the LLC,
evidenced by the Codicil, “whereby in exchange for the Plaintiffs maintaining and
improving their mobile homes located on the Park, and the Northern Docks and the
Southern Dock, the LLC would arrange its affairs in such a way that the Plaintiffs
would receive title to the Park, along with access and riparian rights to the Southern
Dock.” 	(Compl. ¶ 56.) 	They contend that the LLC breached this agreement.
(Compl. ¶¶ 58–59.)
30. 	Defendants respond that this claim fails as a matter of law because
(1) there was never a contract between Plaintiffs and the LLC, (2) there was never a
breach of any contract or damages flowing from any alleged breach, and (3) the claim
is barred by the statute of frauds. (Defs.’ Br. Supp. 14–16.)
1. 	Existence of Contract and Breach
31. 	“In an action for breach of contract, the complaint must allege (1) the
existence of a contract between the parties, (2) the specific provisions breached,
(3) the facts constituting the breach, and (4) the damages resulting to the plaintiff[s]
from the breach.” Thompson v. Bass, 261 N.C. App. 285, 290 (2018) (citing Cantrell
v. Woodhill Enters., Inc., 273 N.C. 490, 497 (1968)).
32. 	As to the first element, Defendants argue that the Codicil was written
and executed by Mr. Powell, individually, as an estate planning document and does
not evidence a contract between his LLC and Plaintiffs. 	(Defs.’ Br. Supp. 15.)
However, Plaintiffs have alleged that they entered into an oral agreement with the

LLC that was then memorialized by Mr. Powell—as the sole member and manager of
the LLC—in the Codicil. 	(Compl. ¶¶ 56–57.) 	Accordingly, it is Plaintiffs’ position
that when Mr. Powell executed the Codicil, he did so in his capacity as manager of
the LLC, not in his individual capacity. Indeed, they point to Mr. Powell’s reference
in the Codicil to the Park as “my mobile home park known as Sea Manor Enterprises,
LLC.” 	The Court determines that, at this stage, Plaintiffs have satisfactorily pled
this element of their claim.
33. 	As for the remaining elements, Plaintiffs have alleged that the LLC
breached the agreement by failing to ensure that the Park and an easement granting
access to the Southern Dock were distributed to Plaintiffs and that Plaintiffs have
been damaged as a result.3 	(See Compl. ¶¶ 59, 62.) 	Accordingly, Plaintiffs have
sufficiently stated a claim for breach of contract against the LLC. Cf. Carolina Med.
Partners, PLLC v. Shah, 2024 NCBC LEXIS 86, at **5 (N.C. Super. Ct. June 27,
2024) (“The elements of a claim for breach of contract are the existence of a valid
contract and breach of that contract’s terms. When these elements are alleged, ‘it is
error to dismiss a breach of contract claim under Rule 12(b)(6).’ ” (quoting Woolard v.
Davenport, 166 N.C. App. 129, 134 (2004))); Vanguard Pai Lung, LLC v. Moody, 2019
NCBC LEXIS 39, at *11 (N.C. Super. Ct. June 19, 2019) (“[S]tating a claim for breach
of contract is a relatively low bar.”).
3 Plaintiffs do not mention the Boat Trailer Storage Lot in this claim.

2. 	Statute of Frauds
34. 	“It is settled law in North Carolina that an oral contract to convey or
devise 	property 	is 	void 	by 	reason 	of 	the 	statute 	of 	frauds[.]” 	Pickelsimer 	v.
Pickelsimer, 257 N.C. 696, 698 (1962). Accordingly, “[a]ll contracts to sell or convey
any 	lands, 	tenements 	or 	hereditaments, 	or 	any 	interest 	in 	or 	concerning
them . . . shall be void unless said contract, or some memorandum or note thereof, be
put in writing and signed by the party to be charged therewith, or by some other
person 	by 	him 	thereto 	lawfully 	authorized.” 	N.C.G.S. 	§ 22-2. 	Although 	“[a]
memorandum 	or 	note 	is, 	in 	its 	very 	essence, 	an 	informal 	and 	imperfect
instrument . . . [i]t must contain a description of the land, the subject-matter of the
contract, either certain in itself or capable of being reduced to certainty by reference
to something extrinsic to which the contract refers.” 	Lane v. Coe, 262 N.C. 8, 12
(1964). “If the description is sufficiently definite for the court, with the aid of extrinsic
evidence, to apply the description to the exact property intended to be sold, it is
enough.” Id.
35. 	In 	evaluating 	the 	written 	contract, 	“the 	only 	requisite, 	as 	to 	the
certainty of the thing described, is that there shall be no patent ambiguity in the
description by which it is designated.” 	Norton v. Smith, 179 N.C. 553, 555 (1920).
“There is a patent ambiguity when the terms of the writing leaves the subject of the
contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic
by which it might possibly be identified with certainty.” 	Lane, 262 N.C. at 13.
Conversely, “[a] description is said to be latently ambiguous if it is insufficient in

itself to identify the property but refers to something extrinsic by which identification
might possibly be made.” Id.
36. 	As explained by the Supreme Court of North Carolina in Norton,
A house and lot, or one house and lot in a particular town, would not do,
because [it is] too indefinite on the face of the instrument itself. But “my
house and lot” imports a particular house and lot, rendered certain by
the description that it is the one which belongs to me, and, upon the face
of the instrument, is quite as definite as if it had been described as the
house and lot in which I now live, which is undoubtedly good. 	Where
the deed or will does not itself show that the grantor or devisor had more
than one house and lot, it will not be presumed that he had more than
one, so that there is no patent ambiguity, and if it be shown that he has
more than one, it must be by extrinsic proof, and the case will then be
one of a latent ambiguity, which may be explained by similar proof.
Norton, 179 N.C. at 555 (internal citation omitted); see also Doe ex dem. Carson v.
Ray, 52 N.C. 609, 610 (1860) (holding the terms “my house and lot in the town of
Jefferson” to be sufficient to identify the subject property).
37. 	Here, the Codicil states:
I leave the following real property (real estate) to the mobile home
owners that have a mobile home in my mobile home park known as Sea
Manor Enterprises, LLC.
They are to continue to have access to the boat ramp and three piers
until they dispose of their mobile home, but this right will not pass to
their heirs.
****
Attached are copies of Sea Manor Enterprises, LLC Mobile Home Park
information along with copies of the Pender County and Town of Surf
City real property tax documents.
While the instrument is unclear as to whether Mr. Powell intended to convey the land
on which the Park was situated or merely access rights to the boat ramp and three

piers historically used by Plaintiffs, the Codicil does not leave the identity of the
property “in a state of absolute uncertainty[.]” 	Lane, 262 N.C. at 13. 	The Park is
identified by name, and the Codicil specifies that it is continued access to the boat
ramp and three piers that Plaintiffs are to receive, implicitly indicating that the boat
ramp and three piers can be identified. 	Further, Mr. Powell references Park
information and Pender County and Town of Surf City real property tax documents
for additional information. Accordingly, the description of the property in the writing
is not patently ambiguous, and there is no question that Mr. Powell signed the
document. This is enough to satisfy the statute of frauds.
38. 	At this stage, Plaintiffs have adequately alleged a claim for breach of
contract against the LLC. 	Therefore, Defendants’ Motion with respect to this claim
is DENIED.
C. Breach of Contract (Estate of Powell)
39. 	Plaintiffs next allege that they entered into an agreement with Mr.
Powell that, in exchange for maintaining and improving the Northern Docks on the
lot he owned individually, Mr. Powell would “arrange his affairs in such a way that
the Plaintiffs would be conveyed, devised and bequeathed access and riparian rights
to the Northern Docks.” 	(Compl. ¶ 64.) 	Plaintiffs further allege that, if the Codicil
failed to cause these access rights to be conveyed to Plaintiffs, then Mr. Powell
breached their agreement. (Compl. ¶ 66.)
40. 	Defendants argue that this claim is barred by the non-claim statute for
estate administration. The Court agrees.

41. 	The non-claim statute, which is found in Chapter 28A of the North
Carolina General Statutes, prescribes time limitations for asserting claims against
an estate. 	Claims against an estate that arise at or after the death of the decedent
“are forever barred against the estate, the personal representative, the collector, the
heirs, 	and 	the 	devisees 	of 	the 	decedent 	unless 	presented 	to 	the 	personal
representative or collector” within six months after the date on which performance is
due or within six months after the claim arises. N.C.G.S. § 28A-19-3(b)(1)(2).
42. 	Defendants contend that, at least by 1 February 2023, when Plaintiffs
received the February 1 Letter from Mr. Lindquist, Plaintiffs were aware that the
Estate had determined that the Church was the sole owner of the Park and other
property owned by the LLC. (See Compl. Ex. G.) Therefore, they had until 1 August
2023 to present their claim. This action was not filed until 28 September 2023, and
since Plaintiffs do not allege any earlier presentation of a claim,4 Defendants argue
that Plaintiffs’ claim should be dismissed as time-barred.
43. 	In response, Plaintiffs challenge application of the non-claim statute to
them by arguing that they are devisees, not creditors. (See Pls.’ Resp. Br. Opp. Defs.’
4 Claims against an estate that arose before the death of the decedent “are forever barred
against the estate, the personal representative, the collector, the heirs, and the devisees of
the decedent[ ]”unless “presented to the personal representative or collector . . . by the date
specified in the general notice to creditors” or “within 90 days after the date of the delivery
or mailing of the notice if the expiration of said 90-day period is later than the date specified
in the general notice to creditors[.]” N.C.G.S. § 28A-19-3(a). To the extent Plaintiffs argue
that their claim arose before Mr. Powell’s death, then based on the notice to creditors,
Plaintiffs must have presented their claim by 6 April 2023. 	(See Answ. p. 26 [“Notice to
Creditors”].)

Mot. J. on Pleadings [“Pls.’ Br. Opp.”] 9–10, ECF No. 19.) Subsection (h) of the non-
claim statute provides that “[t]he word ‘claim’ . . . does not apply to claims of heirs or
devisees to their respective shares or interests in the decedent’s estate in their
capacity as such heirs or devisees.” 	N.C.G.S. § 28A-19-3(h). 	“ ‘Devisee’ means any
person entitled to take real or personal property under the provisions of a valid,
probated will.” N.C.G.S. § 28A-1-1(1a).
44. 	Plaintiffs’ claim, however, belies their argument. 	They have sued Mr.
Powell for breach of contract, not his executor for breach of fiduciary duty. The claim
is not “to [Plaintiffs’] respective shares or interests” as devisees but rather is for
specific performance and damages resulting from an alleged breach of contract.
Because this breach of contract claim was not presented to the Estate prior to the
expiration of the 6-month period established by the non-claim statute, it is barred.5
45. 	Accordingly, as to Plaintiffs’ claim for breach of contract against Mr.
Powell, Defendants’ Motion is GRANTED, and this claim is DISMISSED with
prejudice.6
5 To the extent Plaintiffs’ claim is predicated on Mr. Powell’s promise that Plaintiffs “would
be taken care of,” such a promise is too vague to be enforced and, in any event, a commitment
by Mr. Powell to perform a personal service (e.g. write a will bequeathing them the real
property) ended upon Mr. Powell’s death. 	See Siler v. Gray, 86 N.C. 566, 569 (1882) (“All
contracts for personal service, which can be performed only during the life of the contracting
party, are subject to the implied condition that he shall live to perform them, and should he
die, his executor is not liable to an action for the breach of contract occasioned by his death.”
(citation omitted)).
6 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court[.]” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013).

D. Unjust Enrichment (Northern Docks)
46. 	Even if no express contract between Plaintiffs and Mr. Powell exists,
Plaintiffs contend that Mr. Powell is liable to them because he was unjustly enriched
by their improvements to the Northern Docks. (Compl. ¶¶ 77–83.) “The general rule
of unjust enrichment is that where services are rendered and expenditures made by
one party to or for the benefit of another, without an express contract to pay, the law
will imply a promise to pay a fair compensation therefor.” 	Chisum v. Campagna,
2017 NCBC LEXIS 102, at *31 (N.C. Super. Ct. Nov. 7, 2017) (quoting Atl. C. L. R.
Co. v. State Highway Comm’n, 268 N.C. 92, 95–96 (1966)). 	“The doctrine . . . was
devised by equity to exact the return of, or payment for, benefits received under
circumstances where it would be unfair for the recipient to retain them without the
contributor being repaid or compensated.” 	Id. at *32 (quoting Collins v. Davis, 68
N.C. App. 588, 591 (1984)).
47. 	“In North Carolina, to recover on a claim of unjust enrichment, Plaintiff
must prove: (1) that it conferred a benefit on another party; (2) that the other party
consciously 	accepted 	the 	benefit; 	and 	(3) 	that 	the 	benefit 	was 	not 	conferred
gratuitously or by an interference in the affairs of the other party.” Cty. of Wake PDF
Elec. & Supply Co., LLC v. Jacobsen, 2020 NCBC LEXIS 103, at *29 (N.C. Super. Ct.
Sept. 9, 2020) (citing Se. Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 330 (2002)).
Plaintiffs have alleged these elements.
48. 	However, just as their claim against the Estate for breach of an express
contract is barred by the non-claim statute, Plaintiffs’ claim for breach of an implied

contract7 against the Estate (or the Church as the devisee) is also time-barred.
See N.C.G.S. § 28A-19-3(b) (Claims “are forever barred against the estate . . . and the
devisees of the decedent unless presented to the personal representative” within the
applicable time limitation).
49. 	Accordingly, as to Plaintiffs’ claim for unjust enrichment with regard to
the 	Northern 	Docks, 	Defendants’ 	Motion 	is 	GRANTED, 	and 	this 	claim 	is
DISMISSED with prejudice.
E. Breach of Operating Agreement (LLC)
50. 	Plaintiffs 	contend 	that 	the 	Codicil 	acted 	as 	the 	LLC’s 	operating
agreement, and that the Church, as manager of the LLC, breached the operating
agreement by not conveying the Park, access to the Southern Dock, and at least the
right to use the Boat Trailer Storage Lot,8 to Plaintiffs. (Compl. ¶¶ 86, 88.)
51. 	The North Carolina Limited Liability Company Act (the “Act”) does not
require that an LLC have an operating agreement, nor does it prescribe the form that
an operating agreement must take. See N.C.G.S. § 57D-1-03(23) (defining “operating
agreement” as “[a]ny agreement concerning the LLC or any ownership interest in the
LLC to which each interest owner is a party or is otherwise bound as an interest
owner[ ]” and stating that “the operating agreement may be in any form, including
written, oral, or implied, or any combination thereof.”).
7 A claim for unjust enrichment “is neither in tort nor contract but is described as a claim in
quasi contract or a contract implied in law.” Booe v. Shadrick, 322 N.C. 567, 570 (1988).
8 At times, Plaintiffs allege that they inherited all of the LLC’s property, which would include
the Boat Trailer Storage Lot. At other times, Plaintiffs allege that they were promised only
use of the lot for boat storage.

52. 	If one exists, the Act provides that “[t]he operating agreement governs
the internal affairs of an LLC and the rights, duties, and obligations of (i) the interest
owners, and the rights of any other persons to become interest owners, in relation to
each other, the LLC, and their ownership interests or rights to acquire ownership
interests and (ii) the company officials in relation to each other, the LLC, and the
interest owners.” N.C.G.S. § 57D-2-30(a).
53. 	In support of their position that the Codicil acted as the LLC’s operating
agreement, Plaintiffs argue that “Mr. Powell’s Codicil clearly expressed his intent on
what would happen to the assets in his LLC upon his death such that it governed
what would happen to the LLC upon his death.” (Pls.’ Br. Opp. 21.) But the Codicil
speaks only to the disposition of some, but not all, of the LLC’s assets. 	There is no
mention of the Boat Trailer Storage Lot, for example. There is also no mention of the
disposition of the LLC’s liabilities. Moreover, to the extent it references the Northern
Docks, the Codicil includes direction regarding non-LLC property, content that is
inconsistent with an argument that the Codicil is an operating agreement for the
LLC. In sum, while Plaintiffs allege that the Codicil directs the disposition of some
of the LLC’s property, the Court concludes that it is an overstatement to characterize
the Codicil as a document that governs the affairs of the LLC.
54. 	Accordingly, as to Plaintiffs’ claim for breach of operating agreement,
Defendants’ Motion is GRANTED, and this claim is DISMISSED with prejudice.

F. Declaratory Judgment
55. 	Plaintiffs request that the Court enter a judgment declaring that (a) the
Codicil 	conveys 	ownership 	of 	the 	LLC 	and 	easement 	rights 	to 	Plaintiffs, 	or
alternatively, that (b) the Codicil is ambiguous and was executed by Mr. Powell while
mistakenly believing that by identifying the mobile home park real property as “Sea
Manor Enterprises, LLC” and listing the Plaintiffs by name in his Codicil, he
bequeathed his ownership interest in the LLC to them. (Compl. ¶¶ 108, 111–12.)
56. 	North Carolina’s Uniform Declaratory Judgment Act empowers courts
“to declare rights, status, and other legal relations, whether or not further relief is or
could be claimed.” 	N.C.G.S. § 1-253. 	Here, there are issues of fact with respect to
Mr. Powell’s intent and the legal effect of the Codicil. Plaintiffs have stated a claim
for declaratory judgment sufficient to proceed to discovery.
57. 	Accordingly, with respect to Plaintiffs’ claim for declaratory judgment,
Defendants’ Motion is DENIED.
G. Reformation of Will to Conform to Testator’s Intent
58. 	Similarly, Plaintiffs request that the Court reform the ambiguous terms
of the Codicil to reflect Mr. Powell’s intent. (Compl. ¶¶ 113–16.) Defendants respond
that the terms of the Codicil are clear, and Plaintiffs’ dissatisfaction with the result
is not a basis for reformation. (Defs.’ Br. Supp. 21–24.)
59. 	Pursuant to N.C.G.S. § 31-61, “[t]he court may reform the terms of a
will, if the terms of the will are ambiguous, to conform the terms to the testator’s
intent if it is proved by clear and convincing evidence what the testator’s intent was

and that the terms of the will were affected by a mistake of fact or law, whether in
expression or inducement.”
60. 	However, reformation is a remedy, not a claim. See Branch Banking &
Tr. Co. v. Chi. Title Ins. Co., 214 N.C. App. 459, 463 (2011) (“Reformation is a well-
established equitable remedy used to reframe written instruments[.]”); Metro. Prop.
& Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798 (1997) (same).
61. 	Therefore, as to Plaintiffs’ claim for reformation, Defendants’ Motion is
GRANTED, and this claim is DISMISSED, but the Court’s ruling is without
prejudice to Plaintiffs’ right to pursue reformation as a remedy should Plaintiffs show
they are entitled to such relief.
H. Unjust Enrichment, Resulting Trust, and Constructive Trust (LLC)
62. 	With respect to the Park and the Southern Dock, Plaintiffs allege that
the Church, now allegedly the sole member of the LLC, has been unjustly enriched
because, but for Mr. Powell’s breach of contract, it would not have received this
property. 	(Compl. ¶¶ 71–72.) 	They allege that this unjust enrichment requires the
imposition of either a constructive trust or a resulting trust over the property.
63. 	“A constructive trust is a duty, or relationship, imposed by courts of
equity to prevent the unjust enrichment of the holder of title to, or of an interest in,
property[.]” Roper v. Edwards, 323 N.C. 461, 464 (1988) (quoting Wilson v. Dev. Co.,
276 N.C. 198, 211 (1970)). 	While most commonly applied in cases involving breach
of fiduciary duty or fraud, neither of which are alleged here, a constructive trust can

be a remedy in other circumstances where it would be inequitable not to impose one.9
Id.
64. 	Plaintiffs allege that the Church is in possession of real property that
belongs to them and that it would be inequitable not to impose a trust. 	However, a
constructive trust is a remedy, not a claim. Therefore, the Court concludes that the
claim seeking imposition of a constructive trust should be dismissed but without
prejudice to Plaintiffs’ right to pursue a constructive trust remedy should Plaintiffs
show that one or more of their claims entitle them to such relief.
9 Plaintiffs also request the imposition of a resulting trust. 	As our Court of Appeals has
explained:
A resulting trust arises when a person becomes invested with the title to real
property under circumstances which in equity obligate him to hold the title
and to exercise his ownership for the benefit of another . . . . A trust of this sort
does not arise from or depend upon any sort of agreement between the
parties. It results from the fact that one man’s money has been invested in
land and the conveyance taken in the name of another.
The classic example of a resulting trust is the purchase-money resulting
trust. In such a situation, when one person furnishes the consideration to pay
for the land, title to which is taken in the name of another, a resulting trust
commensurate with his interest arises in favor of the one furnishing the
consideration. The general rule is that the trust is created, if at all, in the same
transaction in which the legal title passes, and by virtue of the consideration
advanced before or at the same time the legal title passes.
Tuwamo v. Tuwamo, 248 N.C. App. 441, 447–48 (2016) (quoting Bissette v. Harrod, 226 N.C.
App. 1, 12 (2013)). Our Supreme Court long ago observed that “[t]he rule has its foundation
in the natural presumption, in the absence of all rebutting circumstances, that he who
supplies the purchase-money intends the purchase for his own benefit, and not for another,
and that the conveyance in the name of another is a matter of convenience and arrangement
between the parties for collateral purposes.” 	Summers v. Moore, 113 N.C. 394, 402 (1893)
(emphasis added). In this case, where Plaintiffs did not provide the purchase money for the
property, a resulting trust does not have direct application.

65. 	Accordingly, with respect to Plaintiffs’ third claim for relief, styled as
one for “Unjust Enrichment, Resulting Trust, and Constructive Trust with Respect
to the Park,” the Motion is GRANTED, and this Claim is DISMISSED with
prejudice, but the Court’s ruling is without prejudice to Plaintiffs’ right to pursue a
constructive trust as a remedy should Plaintiffs show that one or more of their claims
entitle them to such relief.
I. 	Quiet Title to Rights of Easement Over Riparian Tracts
66. 	Plaintiffs assert that they each have a personal right of access to the
Northern Docks by way of the Powell Lot shoreline until they either die or dispose of
their mobile home, whichever comes first. 	(Compl. ¶ 118.) 	Accordingly, Plaintiffs
request an order quieting title on an easement ensuring this access. (Compl. ¶ 120.)
Defendants respond that (1) no easement was created by the Codicil, and (2) Plaintiffs
have no interest in the Powell Lot where the Northern Docks are located. (Defs.’ Br.
Supp. 24–26.)
67. 	An action to quiet title “may be brought by any person against another
who claims an estate or interest in real property adverse to him for the purpose of
determining such adverse claims[.]” 	N.C.G.S. § 41-10. 	Thus, “[a]n action for quiet
title has two essential elements: (1) the plaintiff must own or have some interest in
the property at issue, and (2) the defendant must have a claim adverse to the
plaintiff’s title or interest in the property.” MTGLQ Inv’rs., L.P. v. Curnin, 263 N.C.
App. 193, 195 (2018) (citing Wells v. Clayton, 236 N.C. 102, 107–08 (1952)). 	Here,
Plaintiffs’ interest is a purported easement allowing access to the Northern Docks.

68. 	“An easement is a right to make some use of land owned by another
without taking a part thereof.” Butler Drive Prop. Owners Ass’n v. Edwards, 109 N.C.
App. 580, 584 (1993) (quoting Builders Supplies Co. of Goldsboro, N.C., Inc. v. Gainey,
282 N.C. 261, 266 (1972)). 	“An express easement must be ‘sufficiently certain to
permit the identification and location of the easement with reasonable certainty.’ ”
Wiggins v. Short, 122 N.C. App. 322, 327 (1996) (quoting Adams v. Severt, 40 N.C.
App. 247, 249 (1979)). “The description must either be certain in itself or capable of
being reduced to a certainty by a recurrence to something extrinsic to which it refers.”
Thompson v. Umberger, 221 N.C. 178, 180 (1942) (citation omitted). 	As with the
requirements necessary to satisfy the statute of frauds generally:
An ambiguity in the grant or reservation of an easement does not
necessarily make the conveyance void and ineffectual. 	Indeed, if the
description of an easement is in a state of absolute uncertainty, and
refers to nothing extrinsic by which it might possibly be identified with
certainty, 	the 	agreement 	is 	patently 	ambiguous 	and 	therefore
unenforceable. 	However, a description is latently ambiguous if it is
insufficient in itself to identify the property but refers to something
extrinsic by which identification might possibly be made. If there is a
latent ambiguity in an easement description, parol evidence will be
admitted to fit the description to the thing intended. For, while a patent
ambiguity raises a question of construction, a latent ambiguity raises a
question of identity.
Edwards v. Hill, 208 N.C. App. 178, 182 (2010) (cleaned up) (citations omitted).
69. 	In Edwards, the Court of Appeals found the following language in the
grant of an easement to be ambiguous:
[t]ogether with the non-exclusive perpetual Right-of-Way and Easement
(45 feet in width) which runs in a generally northeasterly direction to
Carpenter’s Grove Church road as described in Deed Book 1391 at Page
1653; Deed Book 1370 at Page 725; Deed Book 1387 at Page 954; and

Deed Book 1412 at Page 709 which Easement is incorporated by
reference as if fully set out herein.
Edwards, 208 N.C. App. at 183. The Court found that this latent ambiguity, however,
was capable of being aided by parol evidence. 	See id. (“[A]lthough the Defendants’
Deed leaves the parties’ agreement as to the location of the 45 foot easement
undisclosed, the easement description does expressly incorporate the description
thereof provided in these four deeds. Accordingly, the Defendants’ Deed does point
to extrinsic evidence by which identification of the easement might possibly be
made[.]”).
70. 	Here, the Codicil provides: “[Plaintiffs] are to continue to have access to
the boat ramp and three piers[.]” Thus, the writing assumes that Plaintiffs already
have these access rights and that they will continue to have the same access. Further,
the Codicil references “Sea Manor Enterprises, LLC Mobile Home Park Information”
and “Pender County and Town of Surf City real property tax documents.” 	Whether
these documents provide the missing detail regarding the location of the easement
across both property owned by the LLC, as well as the Powell Lot now owned by the
Church, remains to be seen. 	At this stage, however, Plaintiffs’ claim to quiet title
survives Defendants’ Motion.
71. 	Accordingly, as to Plaintiffs’ claim to quiet title, the Motion is DENIED.
J. Alter Ego
72. 	Plaintiffs’ tenth claim is titled: “The LLC is an Alter Ego of Mr. Powell.”
Plaintiffs 	allege 	that 	“as 	sole 	member 	and 	manager 	of 	the 	LLC, 	Mr. 	Powell
maintained complete control not only over LLC finances, but also over policy and

business practices of the LLC when it related to transactions of the LLC such that
the 	LLC was not 	operating 	on its 	own, 	but as an extension 	of 	Mr. 	Powell.”
(Compl. ¶ 127.)10 In addition, Plaintiffs allege upon information and belief that Mr.
Powell did not maintain corporate formalities for the LLC. (Compl. ¶ 128.)
73. 	Given 	his 	“domination 	and 	control 	over 	the 	LLC” 	and 	his 	“non-
compliance with corporate formalities,” Plaintiffs request that the Court pierce the
corporate veil and treat the LLC as an alter ego of Mr. Powell. (Compl. ¶ 129.)
74. 	In their opening brief, Defendants argue that piercing the corporate
veil11 is not a claim and, in any event, is inappropriate here because there are no
allegations of nefarious activity on the part of Mr. Powell. 	(Defs.’ Br. Supp. 26–27.)
The Court agrees.
75. 	“To pierce the corporate veil is to set aside the corporate form and the
protections that go along with it.” Harris v. Ten Oaks Mgmt., 2022 NCBC LEXIS 62,
at **5 (N.C. Super. Ct. June 20, 2022). 	“[V]eil piercing ‘allows a plaintiff to impose
legal 	liability 	for 	a 	corporation’s 	obligations . . . upon 	some 	other 	company 	or
individual that controls and dominates a corporation.’ ” 	Id. (quoting Green v.
Freeman, 367 N.C. 136, 145 (2013)). 	“The doctrine of piercing the corporate veil
applies to LLCs as well as to corporations.” Gurkin v. Sofield, 2020 NCBC LEXIS 49,
10 The Complaint contains two paragraphs numbered 127. The Court references the second
paragraph 127 here.
11 In their responsive brief, Plaintiffs agree that they are requesting that the Court pierce the
LLC’s corporate veil. (See Pls.’ Br. Opp. 29.)

at *23 (N.C. Super. Ct. Apr. 15, 2020) (citing Estate of Hurst v. Moorehead I, LLC,
228 N.C. App. 571, 576 (2013)).
76. 	Here, Plaintiffs appear to assert the less common form of veil piercing
known as reverse piercing. See id. (Reverse piercing is used, “to make the corporate
entity liable for the dominating shareholder’s actions rather than piercing the veil to
make 	the 	dominating 	shareholder 	personally 	liable 	for 	the 	corporate 	entity’s
obligations.” (quoting Strategic Outsourcing, Inc. v. Stacks, 176 N.C. App. 247, 254
(2006) (cleaned up))); see also Fischer Inv. Cap., Inc. v. Catawba Dev. Corp., 200 N.C.
App. 644, 650 (2009) (“[W]here one entity is the alter-ego, or mere instrumentality,
of another entity, shareholder, or officer, the corporate veil may be pierced to treat
the two entities as one and the same, so that one cannot hide behind the other to
avoid liability.”).
77. 	To plead reverse piercing, Plaintiffs “must, at a minimum, begin by
pleading the same elements that are necessary to establish traditional piercing.”
Harris, 2022 NCBC LEXIS 62, at *6. 	Plaintiffs must show “that the [LLC] is so
operated that it is a mere instrumentality or alter ego of [Mr. Powell] and a shield for
his activities in violation of the declared public policy or statute of the State.” 	Cold
Springs Ventures, LLC v. Gilead Scis., Inc., 2015 NCBC LEXIS 1, at *15–16 (N.C.
Super. Ct. Jan. 6, 2015) (quoting Green, 367 N.C. at 145).
78. 	The Court looks for three elements:
(1) Control, not mere majority or complete stock control, but complete
domination, not only of finances, but of policy and business practice in
respect to the transaction attacked so that the corporate entity as to this

transaction had at the time no separate mind, will or existence of its
own; and
(2) Such control must have been used by the defendant to commit fraud
or wrong, to perpetrate the violation of a statutory or other positive legal
duty, or a dishonest and unjust act in contravention of [a] plaintiff’s legal
rights; and
(3) The aforesaid control and breach of duty must proximately cause the
injury or unjust loss complained of.
Id. at *16 (citation omitted).
79. 	Plaintiffs’ claim fails at the second element. There are no allegations in
Plaintiffs’ Complaint that Mr. Powell engaged in fraud or that he used the LLC to
perpetrate dishonest or unjust acts. 	Plaintiffs merely allege that Mr. Powell
promised that “they had nothing to worry about” and “they would be taken care of,”
and then signed a Codicil purporting to transfer to them real property—some of which
was owned by the LLC and not by him individually. 	See Best Cartage, Inc. v.
Stonewall Packaging, LLC, 219 N.C. App. 429, 440 (2012) (rejecting the argument
that a breach of contract, “in itself, can amount to a wrongdoing[.]”); cf. Harris, 2022
NCBC LEXIS 62, at **9 (“The allegations must show some ‘indicia of fraudulent or
inequitable conduct’ apart from the breach: ‘a showing for example, that the puppet
entity was created for the purpose of entering into the relevant contract or used as a
means to unjustly insulate another from liability.’ ”). No such allegations have been
made here.
80. 	Therefore, as to Plaintiffs’ tenth claim for relief (Alter Ego), Defendants’
Motion is GRANTED, and this claim is DISMISSED with prejudice.

IV. 	CONCLUSION
81. 	WHEREFORE, Defendants’ Motion for Judgment on the Pleadings is
GRANTED in part and DENIED in part as follows:
a. 	As to Plaintiffs’ First Claim for Relief (Breach of Contract by and
between the LLC and Plaintiffs), the Motion is DENIED.
b. 	As to Plaintiffs’ Second Claim for Relief (Breach of Contract between
Mr. Powell and Plaintiffs), the Motion is GRANTED, and this claim
is DISMISSED with prejudice.
c. 	As 	to 	Plaintiffs’ 	Third 	Claim 	for 	Relief 	(Unjust 	Enrichment,
Resulting Trust, and Constructive Trust with Respect to the Park),
the Motion is GRANTED, and this claim is DISMISSED without
prejudice to Plaintiffs’ right to seek a constructive trust as a remedy
should Plaintiffs show that they are entitled to such relief.
d. 	As to Plaintiffs’ Fourth Claim for Relief (Unjust Enrichment with
Regards to Northern Docks), the Motion is GRANTED, and this
claim is DISMISSED with prejudice.
e. 	As 	to 	Plaintiffs’ 	Fifth 	Claim 	for 	Relief 	(Breach 	of 	Operating
Agreement), 	the 	Motion 	is 	GRANTED, 	and 	this 	claim 	is
DISMISSED with prejudice.
f. 	As to Plaintiffs’ Sixth Claim for Relief (Request for Declaratory
Judgment), the Motion is DENIED.

g. 	As to Plaintiffs’ Seventh Claim for Relief (Reformation of Will to
Conform to Testator’s Intent), the Motion is GRANTED, and this
claim is DISMISSED without prejudice to Plaintiffs’ ability to seek
reformation as a remedy should Plaintiffs show that they are entitled
to such relief.
h. As to Plaintiffs’ Eighth Claim for Relief (Quiet Title to Rights of
Easement over Riparian Tracts), the Motion is DENIED.
i. 	As to Plaintiffs’ Tenth Claim for Relief (The LLC is an Alter Ego of
Mr. 	Powell), 	the 	Motion 	is 	GRANTED, 	and 	this 	claim 	is
DISMISSED with prejudice.
SO ORDERED, this the 3rd day of October, 2024.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases