UnifiedOnline Inc fka UOIP

[long uoip]

re: "Att: 1 Exhibit Bohn v. Black 2019 WL 2341351"

https://www.nccourts.gov/assets/documents/opinions/2019_NCBC_34.pdf?MreFu9TSocgQpLOlivdsHJMJKSczHdji

23. “A partnership is an association of two or more persons to carry on as
co-owners a business for profit.” N.C. Gen. Stat. § 59-36(a). In other words, a
partnership arises when individuals “combine their property, effects, labor, or skill in
a common business or venture.” Johnson v. Gill, 235 N.C. 40, 44, 68 S.E.2d 788, 792
(1952) (citation and quotation marks omitted). No formal agreement is required—a
de facto partnership may exist if the parties’ conduct demonstrates “a voluntary
association of partners.” Best Cartage, Inc. v. Stonewall Packaging, LLC, 219 N.C.
App. 429, 438, 727 S.E.2d 291, 299 (2012). Our courts have emphasized, though, that
“co-ownership and sharing of any actual profits are indispensable requisites for a
partnership.” Id. (quoting Wilder v. Hobson, 101 N.C. App. 199, 202, 398 S.E.2d 625,
627 (1990)).

26. After careful consideration, the Court concludes that the undisputed
evidence requires summary judgment in favor of Defendants. Simply put, “the
indispensable requisite of co-ownership of the business is lacking.” McGurk v. Moore,
234 N.C. 248, 252, 67 S.E.2d 53, 56 (1951).

There is also no evidence that any party, including Laurie, has ever filed a state or
federal income tax return identifying the campground as a partnership, either before
or after the business was incorporated.

B. Breach of Fiduciary Duty
32. As alleged, Judith held nearly despotic control over her family and the
campground business. The Bohns claim that Judith owed them a fiduciary duty as a
result and that she breached that duty by, among other things, blocking access to
their home and mismanaging the money they contributed to the family’s general
fund. (See Am. Compl. pp.6–7 (Claim I).) Again, both sides seek summary judgment
in their favor as to this claim.
4
33. “For a breach of fiduciary duty to exist, there must first be a fiduciary
relationship between the parties.” Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d
704, 707 (2001). A fiduciary relationship arises when “there has been a special
confidence reposed in one who in equity and good conscience is bound to act in good
faith and with due regard to the interests of one reposing confidence.” Dallaire v. Bank of Am., N.A., 367 N.C. 363, 367, 760 S.E.2d 263, 266 (2014) (quoting Green v.Freeman, 367 N.C. 136, 141, 749 S.E.2d 262, 268 (2013)). This definition is expansive
yet exacting: “only when one party figuratively holds all the cards—all the financial
power or technical information, for example—have North Carolina courts found that
the special circumstance of a fiduciary relationship has arisen.” Kaplan v. O.K.
Techs., L.L.C., 196 N.C. App. 469, 475, 675 S.E.2d 133, 138 (2009) (citing Broussard
v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 348 (4th Cir. 1998)).
34. To the extent this claim is based on the fiduciary duties that partners owe
to one another, it must fail. See, e.g., Casey v. Grantham, 239 N.C. 121, 124, 79 S.E.2d
735, 738 (1954) (“It is elementary that the relationship of partners is fiduciary . . . .”).
As discussed, the undisputed evidence is insufficient to establish a legal partnership
between Judith and Laurie.