The financial fight between Lucas and Hopper over their business operations had spawned two opinions before the month of April. Those included the first Opinion of the year, Lucas v. Hopper, 2026 NCBC 1 (Davis, J.) In which the Court granted a motion to Dismiss nine of ten of Plaintiffs’ claims flowing from business activities for which one of the Plaintiffs claimed he had not been paid. I wrote about that Opinion months ago, in the first issue of this Newsletter. In the second Opinion, Lucas v. Hopper, 2026 NCBC 16 (Davis, J.), the Court denied summary judgment on the sole remaining claim, for unjust enrichment. I wrote about that one too.

April brought two more Opinions, Lucas v. Hopper, 2026 NCBC 38 (Davis, J.), and Lucas v. Hopper, 2026 NCBC 39 (Davis, J.) I will refer to those cases as Case #3 and Case #4 in this post

Is there something so remarkable and complicated about the Lucas v. Hopper case that it warranted four separate Opinions from the Business Court? In one word, no.

The caption of Case #3 begins with the words “Amended Order and Opinion. As I plowed through the amended Opinion I had this distinct feeling that I had read the entire Opinion before. And I had. The first 105 paragraphs of the Amended Opinion are identical to those of the original Opinion. Without much of a preamble or an explanation, Judge Davis had added a section to the original Opinion titled “CERTIFICATION.”

Should that have been obvious to me? Maybe, but it took me downloading a program to compare PDFs to discern that the nature of the amendment was the addition of the Certification. That occupied most of my precious morning.

Now that I have got that off my chest, why the Certification? The answer is that the Plaintiffs had filed a Motion for Entry of Final Judgment under rule 54(b) asking the court to certify the immediate appeal of 2026 NCBC1.

Why did the Plaintiffs need the certification? Well, a party wanting to take an appeal can only appeal when there's been a “final judgment.” The judgment in 2026 NCBC 1 was not “final” in that Judge Davis had left open for later consideration the unjust enrichment claim. Judge Davis observed in Case #3 that “[w]here, as here, a court order does not ‘dispose of the entirety of the case,’ the order is interlocutory and not usually subject to immediate appeal. Op. ¶108.

Rule 54(b) of the North Carolina Rules of Civil Procedure gives the trial judge the authority to enter a final judgment as to one or more but fewer than all the claims . . . If there is no just reason for delay.” A decision on certification is left to the discretion of the trial court and the court’s decision is given “great deference.” Op. ¶112.

Factors involved in considering whether the issue of certification include:

where ‘the claims that were dismissed and those that remain are factually and legally intertwined and pertain to essentially the same conduct such that proceeding to trial could produce verdicts inconsistent with verdicts which may later result from trial of one or more of the claims which were dismissed.’

Op. ¶111. Given that the only remaining claim of unjust enrichment and the claims that had been dismissed were legally intertwined as they arose from the same facts and circumstances, Judge Davis certified his decision in 2026 NCBC as a "final judgment.”

Case #4 (captioned Amended Second Order And Opinion On Defendants’ Motion for Summary Judgment) strikes the same path followed by Case #3. The two Opinions are word for word verbatim, with the exception of an added “CERTIFICATION” section. The CERTIFICATION section is almost word for word identical to that section in the Opinion in Case #3. (I have not run a comparison of those two Opinions with my new expensive PDF comparison software (it’s actually a free app called i❤️pdf), but if they are not word for word identical they are pretty close to it.

Judge Davis may be harkening back to his ten years as an North Carolina appellate Judge including time as an Associate Justice of the North Carolina Supreme Court in trying to tie up the appeal of his decisions in the Lucas v. Hopper cases in a nice little bow for the appellate court, but he left an awful lot of wrapping paper on the table in doing so.

The most interesting part of Judge Houston's opinion in Spring v. Lawson, 2026 NCBC 41 (Houston, J.) is contained in footnote 3. The footnote was triggered by what Judge Houston observed was the Defendants’ lawyer’s pretty obvious drafting his counterclaims with an talk-to-text function and failing to proofread the document generated before filing it.

This led to the document being “replete with homophones, typographical errors and nonsensical statements.” Judge Houston pointed out the following: “the document refers at various points to ‘trespass upon shadows,’ (ECF No. 11 at 9, ¶ 46); ‘[s]et equipment’ (apparently referring instead to ‘said’ (i.e., aforementioned) equipment). . . .”

Judge Houston said that “minor typographical errors happen, even to the Court.” But these errors went well beyond "minor typographical errors.” He went on to say:

repeated or obvious errors—such as “trespass upon shadows,” for example— reflect an inexcusable lack of care in preparing filings. N.C. R. Prof. Cond. 1.3, cmt. 8; see Taggart v. Deutsche Bank Nat’l Trust Co., 2021 U.S. Dist. LEXIS 104102, at *39 (E.D. Pa. June 3, 2021) (concluding that “[t]he volume and severity of [counsel’s] errors in the [pleading] demonstrate[d] a complete lack of diligence and a failure to proofread,” which ultimately led to sanctions).

Trespass upon shadows? Should have been trespass upon chattels.

[Let me point out that I use dictation software in preparing this Newsletter. I try to carefully proofread before I publish, but a few stray comments may creep in occasionally. I apologize for that if it has happened]

If you are wondering whether these Defendants violated Judge Houston's First Commandment of Pleading (“thou shalt not engage in group pleading'“), they managed to do that as well. The Defendants were an LLC (Monster) and one of its members (Lawson), who referred to themselves collectively as the “Defendants. The Defendants sued the Plaintiff for conversion of property, but only alleged that the LLC had an ownership interest in it and said nothing about Lawson's ownership interest in it. Judge Houston dismissed Lawson's conversion claim for this pleading deficiency. He said that “Defendants cannot use improper group pleading to create a cause of action on behalf of Lawson when it is defeated by the express allegations of the counterclaims.” Op. ¶33.

Apart from this tongue lashing from Judge Houston, is there anything of interest in this case? Yes, some good solid citation material for a Brief to support a Motion to Dismiss or a Motion for Summary Judgment.

Members of an LLC do Not Owe a Fiduciary Duty to Each Other

As a general rule, “[m]embers of a North Carolina limited liability company, like the parties to this lawsuit, do not owe fiduciary duties to each other that can be breached.” Musselwhite v. Cheshire, 266 N.C. App. 166, 179 (2019) (citing Kaplan v. O.K. Techs., L.L.C., 196 N.C. App. 469, 473 (2009)). 49. Op. ¶48.

Further, “[a] member-manager of a limited liability company owes no fiduciary duty to the other members; rather, the fiduciary duty is owed to the company.” Bethesda Rd. Partners, LLC v. Strachan, 267 N.C. App. 1, 7 (2019)(citing Kaplan, 196 N.C. App. at 474). Op. 49.

But note that an Operating Agreement could provide that members of an LLC owe fiduciary duties to each other. An LLC may be governed by an oral or implied operating agreement, or the statutory defaults for an operating agreement may be modified or supplemented by the agreement of the members. See N.C. Gen. Stat. § 57D-1-03(23). Op. ¶50.

And remember that there can be a fiduciary relationship between LLC members if the relationship between the parties was “one in which 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 the one reposing confidence[.]” Op. ¶ 53(quoting Kaplan v. O.K. Techs., L.L.C., 196 N.C. App. 469, 473 (2009)).

Pleading Trade Secrets With Particularity

I could scream until I'm blue in the face saying that a trade secrets claim in the Business Court that is not pleaded with particularity will be dismissed. If I have been screaming, the Plaintiff in Spring was not listening.

He might not have had his trade secrets claim dismissed if his allegations were not “vague”, “conclusory”, and “perfunctory.” Op. ¶¶66,68.

Remember that “there is no presumption that a thing is a secret, such that the claimant must adequately plead facts to demonstrate efforts to maintain the confidentiality of a purported trade secret. Op. ¶6 (emphasis added)

I can't remember how many Opinions from the Business Court I have read that involve a claim by one member or manager of an LLC against another member or manager claiming that a fiduciary duty was owed. I do remember that it is very rare for the Court to find the existence of a fiduciary duty in those circumstances.

The Opinion this month in Auto Provisions, LLC v. G1.34 Holdings, LLC, 2026 NCBC 40 (Robinson, J.) is yet another Opinion where the Business Court found no fiduciary duty was owing.

Here is a streamlined version of the relevant facts: Plaintiff Auto Provisions, LLC (“AP”) and the Defendant G1.34 were the sole members of co-Plaintiff Recon Partners, LLC (“RP”). RP RP was created to develop and market automotive reconditioning software for automotive dealerships and to “provide its software as a service, partnering with auto dealerships to operate and manage the vehicle reconditioning process.” Op. ¶11. Under the Operating Agreement, G1.34 was obligated to advance funds to software developers to develop the software. The Operating Agreement had provisions which required G1.34 to be repaid for the funds advanced

G1.34 contended, via a counterclaim, that AP had breached its fiduciary duty to it by:

a. attempting, through coercive means, to convert the value of G1.34’s contributions to RP, including what G1.34 contended was a “Loan” and the value of the Software G1.34 helped to develop for the benefit of AP;

b. failing to disclose to G1.34 material agreements in which AP had a conflict of interest;

d. failing to repay misappropriated funds contributed by G1.34 for the development of the Software.

c. failing to provide accurate and timely financial reports to G1.34; and

Op. ¶65.

AP was the majority member of RP. It held a 60% ownership interest in the LLC. Judge Robinson observed that “[m]embers of an LLC generally do not owe fiduciary duties to one another.” Op. ¶72. He did recognize, however, that “Under certain circumstances. . . a majority member exercising control over the LLC may owe fiduciary duties to minority members. Op. ¶73.

The magic words invoked for a court to find that the majority member had a fiduciary duty to minority members are “where ‘one party figuratively holds all the cards’” Op. ¶73 (quoting Kaplan v. O.K. Techs, L.L.C., 196 N.C. App. 469, 475 (2009). That can be established by a majority member’s ability to control the Board of Directors (when a corporation is involved), dissolve the LLC, put the LLC into bankruptcy, or amend the LLC's Operating Agreement without approval from other members. Op. ¶73.

Judge Robinson noted that it might've made a difference if AP was a manager of the LLC. Hhe said that:

[w]hile this Court has held that the managerial authority of a majority member may demonstrate control sufficient to give rise to a fiduciary duty, such cases typically involve a majority member who also acts as the manager of an LLC.

Op. ¶76.

AP was not the manager of the LLC. It's sole unilateral authority under the Operating Agreement [was] its ability to appoint and remove RP's managers. Op. ¶75.

Judge Robinson ruled that AP, even though it was the majority member of RP, owed no fiduciary duties to G1.34. He granted summary judgment in favor of AP on that claim.

The most interesting thing that can be said about DT Lulana Gardens LLC v. SDCK I LLC, 2026 NCBC 43 (Davis, J.) is that it involves a failed effort to develop 3,000 acres of property on the Big Island of Hawaii.

The effort involved multiple parties and a myriad of agreements, written and unwritten. The parties included several entities, including Plaintiffs DT Lulana Gardens, LLC, BOMA LC LLC, BOMA North Carolina, LLC, BMB Investments, LLC (“BMB”), Snake River Development, LLC, and Defendants Jasper Lake, Jasper Lake Two, Sétanta Development Capital, LLC, and SDCK I LLC.

As for the myriad of agreements, there was a confidential and non-binding Letter of Intent, a Purchase and Sale Agreement, a Pledge Agreement, a Termination Notice, and an unwritten Joint Venture Agreement.

I simply could not summon up the energy to plow through this Opinion, which covered 52 pages and 164 paragraphs. I am therefore exercising my unbridled editorial discretion to not write about this Opinion.

If you're disappointed and you'd like further detail about this failed Hawaiian project, I refer you to the Business Court Blast which had the fortitude to write about the case.

The Opinion in Brier Creek Owners Ass’n v. Brier Creek Country Club Owners Ass’n, 2026 NCBC 42 (Houston, J.) raised a number of questions in my mind from the outset.

First, why was this fairly run-of-the-mill dispute between a homeowners association and one of its members even in the Business Court the first place? The answer is that the Plaintiff HOA designated the case to the Business Court pursuant to N.C. Gen. Stat. §7A-45.4(a), stating that it was a “dispute involving the law governing corporations.” No objection was filed to the Notice, and Chief Justice Newby designated the case as "exceptional” pursuant to Rule 2.1 of the North Carolina General Rules of Practice.

If the Chief Justice had spent a moment looking at the Complaint in this action, I doubt that he would've found anything "exceptional" about it. But it is the Counterclaims that are the subject of the Opinion. The Defendant (which is itself an HOA in the Plaintiff community) claims that the Plaintiff HOA has been overly assessing it for years, to the point of causing it to be fully funding the plaintiff’s “Annual Fireworks Show” and refusing to provide it with its share of the profits from that Show. Those facts form the basis for a number of Counterclaims by the Defendant

That led to more questions from me. Was there really a “Fireworks Show”? Were there really profits from it? If so, were those profits generated via a charge to attend? I could not rely on the pleadings for answers and had to do a little googling to find out the answers. Yes, there is a Fireworks Show at the Brier Creek community held on July 4th. It is known as the Star Spangled Block Party and is somewhat of a big deal. It bills itself as “ one of the largest of the many 4th of July fireworks shows in the Triangle“, and has been going on for 12 years. It is simulcast on a local radio station and there is a DJ and giveaways!

Is the Show a big revenue generator? Given the Counterclaims asserting unpaid profits,, I was thinking maybe an admission price of $20 per car or something like that and a yield of thousands of dollars. But not so, admission is free.

The Counterclaims were for Injunctive Relief, unjust enrichment, breach of fiduciary duty, and unfair and deceptive trade practices. It's as if the Defendant's lawyer had pulled out his torts casebook and hurled every claim he could think of into the counterclaims. Perhaps recognizing the invalidity of his claims, the Defendant’s lawyer did not even bother to file a brief in opposition to the Motion to Dismiss his Counterclaims. Judge Houston resolved the motion to dismiss without a hearing as permitted under BCR 7.4.

Claim for Injunctive Relief

Judge Houston did not need to devote much attention to the claim for injunctive relief. He said that:

such “claims” inherently fail as a matter of law because, as this Court and others have repeatedly recognized, they are not independent causes of action or claims.

Op. ¶24. Injunctions are remedies, not independent causes of action. Id. This invalid claim was dismissed without prejudice.

Unjust Enrichment Counterclaim

The unjust enrichment counterclaim was also dismissed by Judge Houston. He said that:

Defendant pleads nothing more than conclusory allegations in support of its cause of action. These conclusory allegations fail to include factual allegations against Plaintiff supporting this cause of action, fail to provide notice under applicable notice pleading standards, and otherwise fail to state a claim upon which relief can be granted.

Op. ¶31. This claim was also dismissed without prejudice.

Breach of Fiduciary Duty Counterclaim

Defendants breach of fiduciary duty counterclaim was similarly skimpy and unsuccessful. To the extent that the defendant was relying upon its status as a member of the Plaintiff HOA to support its fiduciary duty claim, it is well-established that "a corporation does not owe a fiduciary duty to its shareholders.” Op. ¶42.

The Court dismissed this claim with prejudice.

Chapter 75 Counterclaim

The unfair and deceptive trade practices claim was also dismissed by Judge Houston (again with prejudice).

Allegations of any "substantial aggravating circumstances" were lacking. The Court also observed that “A violation of Chapter 75 is unlikely to occur during the course of contractual performance, as these types of claims are best resolved by simply determining whether the parties properly fulfilled their contractual duties.” Op. ¶50. He also questioned whether the this claim was directed at an act that was "in or affecting commerce.” Such conduct is ”related to the party’s ‘business activities,’ or its ‘regular, day-to-day activities, or affairs, such as the purchase and sale of goods, or whatever other activities the business regularly engages in and for which it is organized.’” Op. ¶51.