Silverdeer, LLC v. Berton

SilverDeer, LLC v. Berton, 2014 NCBC 14.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 11 CVS 3539

SILVERDEER, LLC, et al, )
Plaintiffs )
)
v. ) OPINION AND ORDER ON MOTION
) FOR JUDGMENT ON THE PLEADINGS
)
ROBERT BERTON, et al, )
Defendants )

THIS MATTER comes before the court upon the Berton Defendants'1 Motion for

Judgment on the Pleadings ("12(c) Motion") pursuant to Rule 12(c) of the North

Carolina Rules of Civil Procedure ("Rule(s)"). The 12(c) Motion seeks an order of this

court regarding the Plaintiffs' remaining claims for fraud and unfair and deceptive trade

practices.

THE COURT, after considering the 12(c) Motion, briefs in support and in

opposition thereof, other appropriate matters of record and the ends of justice,

CONCLUDES that the motion should be GRANTED for the reasons stated herein.

Howard A. Jacobson, Esq., for Plaintiffs.

Brown & Bunch, PLLC, by Charles Gordon Brown, Esq., for Defendants CGR
Partners, LLC, Steven Reinhard, Dale Carey and Robert Glosson.

Law Offices of James C. White P.C., by James C. White, Esq. and Michelle M.
Walker, Esq. for Defendants Robert Berton, Andrea Burns, Edward Burns, Gail
Dwyer, Stephen Dwyer, James Farrell, Janice Farrell, Daniel Gillis, Wayne
Gould, Eric M. Levin, Betsy Sawicki, Howard Shareff, Shareff & Associates DDS
P.A., Constance Utecht and Michael Utecht.

Jolly, Judge.

1
Robert Berton, Andrea Burns, Edward Burns, Gail Dwyer, Stephen Dwyer, James Farrell, Janice Farrell,
Daniel Gillis, Wayne Gould, Eric M. Levin, Betsy Sawicki, Howard Shareff, Shareff & Associates DDS
P.A., Constance Utecht and Michael Utecht.
PROCEDURAL HISTORY

[1] On March 2, 2011, Plaintiffs SilverDeer, LLC ("SilverDeer"); SilverDeer

Builders, LLC; Lakebound Fixed Return Fund, LLC ("Lakebound"); SilverDeer

Management, LLC ("Management"); SilverDeer Carolinas Caribbean Fund I, LLC,

Plantation Partners, LLC (collectively, "SilverDeer Companies") and Howard A.

Jacobson ("Jacobson") filed a Complaint against Defendants Robert Berton, Eldon

Bolton, Andrea Burns, Edward Burns, Gail Dwyer, Stephen Dwyer, James Farrell,

Janice Farrell, Daniel Gillis, Wayne Gould, Eric M. Levin, Betsy Sawicki, Howard

Shareff, Shareff & Associates DDS P.A., Constance Utecht, Michael Utecht, Alan

Woltman (collectively, "Berton Defendants"); CGR Partners, LLC, Steven Reinhard,

Dale Carey, Robert Glosson (collectively, "CGR Defendants"); VisionQuest Wealth

Management, LLC, VisionQuest Capital, LLC and Steven C. Peters ("Peters")

(collectively, "VisionQuest Defendants") and Ralph J. DiLeone ("DiLeone").

[2] Plaintiffs later filed a First Amended Complaint as to All Defendants

Except DiLeone on January 5, 2012.2

[3] The Amended Complaint alleges ten causes of action (“Claim(s)”) against

the Defendants: First Cause of Action (Malicious Prosecution by all Defendants) (“Claim

One”); Second Cause of Action (Defamation by all Defendants Except DiLeone and

White)3 (“Claim Two”); Third Cause of Action (Fraud) (“Claim Three”); Fourth Cause of

Action (Declaratory Judgment) ("Claim Four"); Fifth Cause of Action (Negligence by

DiLeone) ("Claim Five"); Sixth Cause of Action (Breach of Contract by the VQ Entities

2
On January 10, 2012, Plaintiffs filed a Corrected First Amended Complaint ("Amended Complaint"). The
technical corrections are not material to the issues in this Opinion and Order.
3
James C. White, Esq., is not a named party to this action. Plaintiffs withdrew a Motion to Amend
Complaint filed June 29, 2013, that would have added him as a defendant.
and Peters) ("Claim Six"); Seventh Cause of Action (Fraud by Peters and the VQ

Entities) ("Claim Seven"), Eighth Cause of Action (Breach of Fiduciary Duty by Peters)

("Claim Eight"), Ninth Cause of Action (Unfair and Deceptive Trade Practices by Berton,

CGR Partners, Reinhard, Carey, Glosson, Gillis, Gould, Levin, C. Utecht, DiLeone,

Peters, VisionQuest Wealth and VisionQuest Capital) ("Claim Nine"); Tenth Cause of

Action (Tortious Interference with Prospective Economic Advantage) ("Claim Ten"),

Eleventh Cause of Action (Abuse of Process by all Defendants except DiLeone) ("Claim

Eleven") and Twelfth Cause of Action (Violation of Chapter 78C by Peters and the

VisionQuest Defendants as to Lakebound and SilverDeer Management only) ("Claim

Twelve").

[4] On April 24, 2013, the court entered an order granting the Berton

Defendants', CGR Partners', and Defendant DiLeone's Motions to Dismiss as to all

Claims except those for fraud ("Claim Three") and unfair and deceptive trade practices

("Claim Nine").4 Claims Three and Nine thus remain outstanding as to the Berton

Defendants.

[5] On June 7, 2013, the Berton Defendants filed the instant Rule 12(c)

Motion.

[6] On June 18, 2013, Plaintiffs filed a Stipulation of Dismissal with Prejudice

as to all Claims against CGR Defendants.

[7] On June 29, 2013, Plaintiffs filed a Motion to Amend Complaint (“Motion to

Amend”). On February 6, 2014, Plaintiffs filed a Partial Withdrawal of Motion to Amend

4
Opinion and Order, 2013 NCBC 24 (Apr. 24, 2013) ("Opinion"). The Opinion also dismissed all claims
against the VisionQuest Defendants. Id.
Complaint, by which Plaintiffs withdrew their request to join James White, Esq.

(“White”), as a Defendant in this action.

[8] On July 10, 2013, the Berton Defendants filed a Motion for Protective

Order and to Seal Documents ("Protective Order Motion"). Defendants amended the

Motion on July 31, 2013.

[9] On July 15, 2013, Plaintiff SilverDeer filed a Motion to Reconsider, in Part,

Plaintiffs' Prior Motion to Compel Against All Defendants and New Motion to Compel

Against Third-Party Richard Deckelbaum5 ("First Motion to Compel").

[10] On August 9, 2013, Plaintiff SilverDeer filed a Motion to Compel Answers

to Deposition Questions and For Extension of Deadlines and for Sanctions ("Second

Motion to Compel").

[11] On September 10, 2013, Plaintiffs dismissed all Claims in this action

against Defendant DiLeone.

[12] The aforementioned motions have been fully briefed and are ripe for

determination.

FACTUAL BACKGROUND

Among other things, the Amended Complaint alleges that:

[13] This case arises out of two civil actions previously filed by a majority of the

named Defendants, their managers and related companies (collectively, “Previous

Actions”).6 All Plaintiffs to this action were named defendants in the Previous Actions.7

5
A non-party.
6
Berton, et al. v. Jacobson, et al., Wake County No. 09 CVS 10870 ("Berton Action") and Shareff v.
Lakebound Fixed Return Fund LLC, et al., Wake County No. 09 CVS 9983 (“Shareff Action”).
7
All Plaintiffs in this action were named defendants in the Berton Action. Plaintiffs SilverDeer,
Management, Lakebound, and Jacobson were named defendants in the Shareff Action.
[14] The Previous Actions were based on alleged mismanagement that

resulted in a failed multimillion dollar real estate investment project.

[15] All Defendants in this action, with the exception of DiLeone, acted in

concert and by agreement to file the Previous Actions.8

[16] In March 2010, Defendants, as plaintiffs in the Previous Actions, entered

into settlement negotiations with Richard Deckelbaum ("Deckelbaum"), a member-

manager of SilverDeer, and his counsel DiLeone.9

[17] Deckelbaum and Jacobson were the only member-managers of

SilverDeer.

[18] In July 2010, Deckelbaum signed settlement agreements between the

Berton Defendants and SilverDeer, resulting in the purported settlement in the Previous

Actions ("Settlement").10

[19] The Berton Defendants knew that SilverDeer was represented in the

previous actions by separate counsel and did not consult with SilverDeer's counsel

during the negotiations with Deckelbaum.11

[20] Plaintiffs in this action (SilverDeer Companies and Jacobson) presently

allege Claims for fraud (Claim Three) and unfair and deceptive trade practices (Claim

Nine) against the Berton Defendants.

8
Am. Compl. ¶ 33.
9
Id. ¶ 53.
10
Am. Compl. ¶ 55.
11
Id. ¶ 56.
DISCUSSION

[21] The Berton Defendants seek judgment on the pleadings under Rule 12(c).

They contend that (a) they had no duty to disclose the settlement negotiations to

Plaintiff Jacobson or Plaintiff SilverDeer's attorneys, (b) Plaintiffs are judicially estopped

from asserting a Claim for fraud and (c) the Claim for unfair and deceptive trade

practices fails because the settlement negotiations were conducted exclusively through

attorneys and the settlement was not "in or affecting commerce."

Legal Standard

[22] Judgment under Rule 12(c) is appropriate when "all the material

allegations of fact are admitted in the pleadings and only questions of law remain." Erie

Ins. Exch. v. Builders Mut. Ins. Co., __ N.C. App. __, __, 742 S.E.2d 803, 807 (2013)

(internal quotations and citations omitted). "The standard of review for a Rule 12(c)

motion is the same as for a motion to dismiss under Rule 12(b)(6)." Akzo Nobel

Coatings Inc. v. Rogers, 2011 NCBC 41 ¶ 32 (N.C. Super. Ct. Nov. 3, 2011).

[23] When deciding a motion under Rule 12(c), all facts and inferences must

be viewed in the light most favorable to the nonmovant. Am. Bank & Trust Co. v. Elzey,

26 N.C. App. 29, 32 (1975) (internal citations omitted).

[24] A court may dispose of a claim if a review of the pleadings reveals a lack

of merit. Jackson v. Assoc. Scaffolders & Equip. Co., 152 N.C. App. 687, 689 (2002).

[25] The court will examine Claims Three and Nine in turn.
Claim Three – Fraud

[26] Plaintiffs allege that the Berton Defendants committed fraud in connection

with the Settlement Agreements executed in the Previous Actions. More specifically,

Plaintiffs allege that Deckelbaum and Defendants entered into Settlement Agreements

affecting the rights of SilverDeer and fraudulently concealed those negotiations from

SilverDeer.12

[27] Under North Carolina law, a successful fraud claim must show (a) a false

representation or concealment of a material fact, (b) that is reasonably calculated to

deceive, (c) is made with intent to deceive, (d) that does in fact deceive and which (e)

results in damage to the injured party. Isbey v. Cooper Cos., Inc., 103 N.C. App. 774,

776 (1991) (internal citations omitted).

[28] A claim for fraud may be based on a failure to disclose a material fact only

where parties had a duty of disclosure. Hardin v. KCS Int'l, Inc., 199 N.C. App. 687, 696

(2009). Such a duty arises: (a) when the parties have a fiduciary relationship, (b) where

a party to an arms-length transaction "has taken affirmative steps to conceal material

facts from the other" or (c) where a party knows of a "latent defect in the subject matter

of the negotiations about which the other party is both ignorant and unable to discover

through reasonable diligence." Harton v. Harton, 81 N.C. App. 295, 297–98 (1986).

[29] Here, Plaintiffs do not allege that a fiduciary relationship existed by virtue

of their relationship to the Berton Defendants. Even if such a relationship existed, it

ended the moment that the parties became adversaries in the Previous Actions. Hardin,

199 N.C. App. at 697. Further, "[n]o negotiation could be more arms length" than

12
Id. ¶ 44.
settlement discussions during ongoing litigation. Id. It would thus contradict established

principles of civil litigation to impose such a fiduciary obligation here.

[30] Similarly, there is no allegation that Berton Defendants took "affirmative

steps" to conceal any material fact regarding settlement negotiations from Plaintiff

SilverDeer. SilverDeer was fully informed of the negotiations via Deckelbaum.13 The

Berton Defendants were not under any obligation to reach out to SilverDeer's counsel.14

[31] Finally, there is no alleged "latent defect" about which either party was

unaware, given that the facts as alleged indicate that both SilverDeer and the Berton

Defendants were fully informed regarding the settlement negotiations.

[32] The court is persuaded that, notwithstanding its earlier Opinion denying

the Berton Defendants' Rule 12(b)(6) motion as to the fraud Claim, the Berton

Defendants’ current motion under Rule 12(c) has merit.15

[33] Accordingly, the court concludes that the Berton Defendants’ Rule 12(c)

Motion as to Plaintiffs’ Claim Three should be GRANTED.

[34] In view of this ruling, the court need not address Defendants' argument

that Plaintiffs are judicially estopped from asserting a fraud Claim.

13
Given that SilverDeer, LLC is inherently a separate entity and Mr. Jacobson was not part of the
settlement transaction, he cannot claim that he was personally owed a duty of disclosure by Berton
Defendants.
14
The Berton Defendants themselves are not subject to the Rules of Professional Conduct. Plaintiffs'
claim that Defendants' attorneys violated Rule 4.2 of the North Carolina Rules of Professional Conduct,
thereby giving rise to a claim for fraud under this prong, is without merit. Plaintiff provides no basis for
vicarious liability of the Berton Defendants through the conduct of defense counsel, and White has not
been made a party to this action.
15
Pursuant to Rule 54(b), an order may be revised by the court at any time before the entry of a final
judgment.
Claim Nine – Unfair and Deceptive Trade Practices

[35] Plaintiffs also allege a Claim for unfair or deceptive trade practices under

N.C. Gen. Stat. 75-1.1 (“Chapter 75 Claim”) against certain Berton Defendants.16 In

order to state a Chapter 75 Claim, the Plaintiffs must allege that the Defendants

committed an unfair or deceptive act or practice, in or affecting commerce and that the

plaintiff was injured as a result. Phelps-Dickson Builders, L.L.C. v. Amerimann

Partners, 172 N.C. App. 427, 439 (2005); N.C. Gen. Stat. 75-1.1(a). An unfair trade

practice is one that "is immoral, unethical, oppressive, unscrupulous, or substantially

injurious to consumers." Edwards v. West, 128 N.C. App. 570, 574 (1998) (quoting

Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 263 (1980), overruled on other

grounds) (internal quotations and citations omitted). Determining whether an act or

practice is unfair or deceptive is a question of law and such claims are regularly

dismissed upon a Rule 12 motion.

[36] As stated in this court's April 24, 2013 Opinion and Order, Plaintiffs' Claim

Nine is derivative of their other Claims, specifically Claim Three for fraud,17 and

therefore rises and falls with those Claims. Governor's Club, Inc. v. Governors Club Ltd.

P'ship, 152 N.C. App. 240, 255 (2002) (affirming the dismissal of a Chapter 75 claim

where it was derivative of a constructive fraud claim that was dismissed pursuant to

Rule 12(b)(6)). As such, the disposition of Plaintiffs' fraud Claim as to each set of

Defendants determines the disposition of Plaintiffs' Chapter 75 Claim as to those same

Defendants. As reflected above in this Opinion and Order, the court is granting Rule

16
Richard Berton, Daniel Gillis, Wayne Gould, Eric M. Levin, and Constance Utecht are the only
remaining Berton Defendants against whom Claim Nine is alleged.
17
Opinion ¶ 76.
12(c) judgment in favor of the Berton Defendants' with regard to Claim Three, which

was the only previously-remaining Claim against the Berton Defendants. Consequently,

there exist no further Claims in this action as to those Defendants, and there is nothing

left to support a Chapter 75 Claim against them.

[37] Accordingly, the Berton Defendants’ Rule 12(c) Motion as to Plaintiffs’

Claim Nine should be GRANTED.

NOW THEREFORE, based on the foregoing, it hereby is ORDERED that:

[38] The Berton Defendants' Motion for Judgment on the Pleadings is

GRANTED as to Plaintiffs' Claim Three and Claim Nine, and said Claims are

DISMISSED as to them.

[39] This Opinion and Order disposes of all remaining Claims in this civil action

against Defendants Robert Berton, Andrea Burns, Edward Burns, Gail Dwyer, Stephen

Dwyer, James Farrell, Janice Farrell, Daniel Gillis, Wayne Gould, Eric M. Levin, Betsy

Sawicki, Howard Shareff, Shareff & Associates DDS P.A., Constance Utecht, and

Michael Utecht. Accordingly, as to each of said Defendants, this civil action is

DISMISSED.

[40] Upon entry of this Opinion and Order, the Berton Defendants’ Protective

Order Motion (as amended on July 31, 2013) is MOOT and therefore should be

considered DENIED.

[41] Plaintiffs' First and Second Motions to Compel are DENIED.

[42] Plaintiffs' Motion to Amend Complaint is DENIED.

[43] There remain no further Claims in this civil action, and this matter hereby

is DISMISSED in its entirety.
[44] Taxable costs are taxed against Plaintiffs.

SO ORDERED, this the 7th day of May, 2014.