Part Two

For the second time, I’ve butted up on the size limits allowed by this Newsletter platform. The first time was with the very first Newsletter (for January 2026), in which I intended to summarize all of the Business Court’s Opinions and its Orders of Significance. That wouldn't work, and I decided to split this Newsletter into semi- monthly editions, one focusing on the Court’s Opinions and the other on its Orders of Significance.

Now, the drafted Newsletter for the February 26 Opinions was too big for me to cover all of the Opinions entirely. I am contemplating a number of possible solutions to this problem. One is that I can try to be more pithy and keep this Newsletter shorter (hard). Or the Judges could write shorter Opinions (unlikely)? Another is to choose to write only about the most interesting (to me) Opinions and Orders of the court, like maybe the top five (to me) each month (maybe). For now, in order to provide almost full coverage of the Business Court’s Orders and Opinions, I have settled on splitting this month's Opinions Newsletter into two parts. That may be the first step to me moving this Newsletter to a freemium model. If that prospect outrages you or would stop you from reading, let me know. ([email protected])

This first “Part II” focuses on the last two Business Court decisions from February 2026, first, PCS Phosphate Company, Inc. v. Jacobs Engineering Group, Inc., 2026 NCBC 15 (Houston, J.). Keep reading, please. It’s a pretty interesting decision. Then Lucas v. Hopper, 2026 NCBC 16 (Davis, J.), is a followup to a previous Opinion of the Court, this time a decision about the proper parties to a quantum meruit claim. Less interesting.

When boiled down from its 23 pages and 65 paragraphs of prose, the Business Court’s Opinion in PCS Phosphate Company, Inc. v. Jacobs Engineering Group, Inc., 2026 NCBC 15 (Houston, J.) is basically a case about the enforceability of a forum selection clause.

Plaintiff PCS Phosphate “produces products for use as ingredients in fertilizers, livestock and poultry feed, and industrial applications” from its facility in Aurora, North Carolina plant. Op. ¶6. The project in question was for Plaintiff's construction of an anhydrous hydrogen fluoride plant in Aurora, North Carolina.

In connection with the project, plaintiff entered into a separate contract with Jacobs’ co-Defendant, Buss ChemTech AG. Per that contract, “Buss agreed to provide engineering services, materials needed to incorporate Buss’s chemical process system and technologies into the . . . Plant, and training and oversight. Op. ¶9. The contract contained a forum selection provision which said:

This Agreement shall be governed by New York law. All disputes arising out of or in connection with this Agreement shall be finally settled in State of New York or the United States District Court for the Southern District of New York.

Op. ¶24.

If your reaction to that forum selection language is that this is a cut and dried question, and that plaintiff should have brought its complaint in the State of New York before suing in North Carolina, you are wrong. North Carolina law invalidates any provision in a contract which is “void and against public policy” and that statute deals specifically with forum selection clauses. Section 22B-2 says that:

A provision in any contract, subcontract, or purchase order for the improvement of real property in this State, or the providing of materials therefor, is void and against public policy if it makes the contract, subcontract, or purchase order subject to the laws of another state, or provides that the exclusive forum for any litigation, arbitration, or other dispute resolution process is located in another state.

Op. ¶35.

Much of the Opinion then struggles through whether the agreement was a contract for “either (i) “the improvement of real property” in North Carolina or (ii) “the providing of materials” for the improvement of real property in North Carolina.” The words “improvement” and “materials” are not defined in the statute, and Judge Houston embarked on an interpretation of those words as applied to the work being done by Buss, with his trusty Merriam-Webster dictionary in hand.

The Court ultimately concluded that the forum selection provision fit within the ambit of Section 22B-2, rejecting Buss’ argument that the provision should be confined to "traditional construction contracts.”

Defendant Buss also attempted to persuade the court that the case should be dismissed on the basis of the doctrine of forum non conveniens. (It’s worth noting that the General Assembly has essentially codified the doctrine of forum non conveniens in G.S. §1-75.12(a) (Order ¶57 & n.11). I can certainly understand why Defendant Buss believes that it would be more convenient for it to fight things out in the Southern District of New York then Washington, North Carolina (where the Beaufort County Courthouse is located). But truth be told, either location is thousands of miles away from Buss’ home turf in Prattein, Switzerland.

Even a trial in New York would pose its own set of inconveniences. If a site visit was required during trial, that would involve transporting a jury over 500 miles from the S.D.N.Y. to Beaufort County. Judge Houston also noted “the desirability of litigating matters of local concern in local courts.”

After weighing a variety of factors, including Buss’ protestations that any North Carolina judgment against it would be unenforceable in Switzerland, Judge Houston rejected the forum non conveniens argument.

Given that this Part II has left me unencumbered by space constraints, I will mention the point that Judge Houston made about "group pleading.” Here’s what he said:Throughout their amended complaint, Plaintiffs engage in ‘group pleading,’ lumping the two PCS entities together in the defined term “PCS” and rarely (but sometimes) specifying the particular entity at issue. See Britcher v. Assur. Grp., LLC, 2025 NCBC LEXIS 150, at 10–12 (N.C. Super. Ct. Nov. 4, 2025) (requiring re-pleading in light of improper “group pleading”); Baker v. Hobart Fin. Grp., 2023 NCBC LEXIS 45, at 4–5, 9–10 (N.C. Super. Ct. Mar. 22, 2023) (same). Thus, the amended complaint is often unclear as to the specific entity at issue.

Op. ¶8 & n.2.

My advice? Try to avoid “group pleading.” There is at least one Business Court Judge who is particularly persnickety about clarity in pleadings. (I will not identify that Judge by name). You don't want to be required to replead your action because of “group pleading.” Embarrassing.

You’ll remember the Business Court’s earlier Opinion in Lucas v. Hopper, 2026 NCBC 1 (Davis, J.), in which Judge Davis had granted summary judgment on nine of the ten claims brought by Plaintiff Andrew Lucas against the defendants for money he claimed he was owed for projects they had worked on together. In a second opinion, Lucas v. Hopper, 2026 NCBC 16 (Davis, J.), the Court denied summary judgment on the sole remaining claim, for unjust enrichment.

In a nice succinct statement on the law of unjust enrichment (quantum meruit), Judge Davis said:

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. . . . 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.

Op. ¶28 (citations omitted, emphasis added). In his first Opinion, Judge Davis had concluded that the unjust enrichment claim presented a triable fact. He found that Andrew Lucas had performed services for which he had not been paid, and that defendant Harold Hopper had assured Andrew that they would "settle up”at a later date. Defendant Hopper furthermore had admitted at a deposition that he still owed money to Andrew Lucas OP. ¶28.

Judge Davis had left open the question in his first opinion who the proper parties were to the unjust enrichment claim. The parties had argued whether Andrew was the proper plaintiff or whether the proper plaintiff was SDB partners of Eden, LLC, an LLC which Andrew had formed to receive previous payments made by the Defendants.

This time around, Judge Davis ruled that the individual plaintiff, Andrew Lucas, was the proper plaintiff he was the only party performing services for the benefit of the Defendants. SDB was merely a “pass-through” entity used to collect and distribute money due to Andrew for his services. Op. ¶31.

There was a similar issue for Judge Davis to resolve on the Defendants’ side of the versus. Plaintiff Andrew Lucas wanted the proper defendants to be the individuals with whom he had dealt (Linda and Harold Hopper), not the corporate entity that Linda Hopper had formed (LH Service) to contract with the owners of the facility for the projects on which Andrew had worked.

Judge Davis ruled that the Hopper entity (LH Service) was the only proper Defendant to the quantum meruit claim.

Does it really make a difference who the defendant is? Maybe, if Linda and Harold Hopper go ahead and shut down LH Service, Inc. and it has no more assets with which to pay a judgment.