IN RE SE. EYE CTR. (PENDING MATTERS); IN RE SE. EYE CTR. (JUDGMENTS); IN RE THE FORECLOSURE OF DEED OF TR. EXECUTED BY HISTORIC CASTLE MCCULLOCH, LLC DATED SEPTEMBER 30, 2004, 2024 NCBC 88

STATE OF NORTH CAROLINA
WAKE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
15CVS001648-910
IN RE SOUTHEASTERN EYE
CENTER-PENDING MATTERS
GUILFORD COUNTY 	12CVS011322-400
IN RE SOUTHEASTERN EYE
CENTER-JUDGMENTS
ORDER AND OPINION ON
CROSS MOTIONS FOR SUMMARY JUDGMENT
ON RECEIVER’S REMAINING CROSS CLAIMS AGAINST
THE CASTLE McCULLOCH DEFENDANTS
1. 	THIS MATTER is before the Court upon (i) Defendants Richard Harris,
Historic Castle McCulloch, LLC, and Castle McCulloch, Inc.’s (collectively, the
“Castle McCulloch Defendants” or the “CM Defendants”) Motion for Summary
Judgment 	on 	Paragraph 	504 	of 	the 	Receiver’s 	Eighth 	Cross 	Claim 	(the 	“CM
Defendants’ 	Motion”),1 	and 	(ii) 	JDPW 	Trust’s 	(“JDPW”) 	Motion 	for 	Summary
Judgment as to the Castle McCulloch Defendants (“JDPW’s Motion”; together with
the CM Defendants’ Motion, the “Cross Motions”),2 each brought pursuant to Rule 56
1 (CM Defs.’ Mot. Summ. J. [hereinafter, “CM Defs.’ Mot.”], ECF No. 1347.)
2 (JDPW Tr. Mot. Summ. J. re CM Defs. (Old Battleground v. CCSEA/Nivison v. Harris)
[hereinafter, “Receiver’s Cross Mot.”], ECF No. 1648.)
In re Se. Eye Ctr. (Pending Matters); In re Se. Eye Ctr. (Judgments); In re The
Foreclosure of Deed of Tr. Executed by Historic Castle McCulloch, LLC Dated
September 30, 2004, 2024 NCBC 88.

of the North Carolina Rules of Civil Procedure (the “Rule(s)”) in the above-captioned
cases.3
2. 	Having considered the Cross Motions, the parties’ briefs in support of and
in opposition to the Cross Motions, the relevant pleadings, and other appropriate
matters of record, the Court hereby GRANTS the CM Defendants’ Motion, DENIES
JDPW’s Motion, and DISMISSES the Receiver’s Eighth Cross Claim with prejudice
as set forth below.
Oak City Law LLP, by Robert E. Fields III and Samuel Pinero II, for
Gerald A. Jeutter, Jr., as Receiver for JDPW Trust U/T/A Dated June
8, 2007, Central Carolina Surgical Eye Associates, P.A., HUTA Leasing
LLC, Southeastern Eye Management, Inc., Southeastern Cataract Laser
Center, PLLC, EMS Partners, LLC, KEPES Newco, LLC, and DRE
Newco, LLC.
Pinto Coates Kyre & Bowers, PLLC, by Richard L. Pinto and Kenneth
Kyre for Defendants Richard Harris, Historic Castle McCulloch LLC,
and Castle McCulloch Inc.
Bledsoe, Chief Judge.
I.
FACTUAL AND PROCEDURAL BACKGROUND
3. 	This dispute arises within a large group of cases before this Court that have
been consolidated into two files: In re Se. Eye Ctr.—Pending Matters (Wake County
15 CVS 1648) and In re Se. Eye Ctr.—Judgments (Guilford County 12 CVS 11322).
3 Unless otherwise defined, the capitalized terms in this Order and Opinion refer to those
terms 	as 	used 	in 	the 	Court’s 	judgment 	in 	the 	Foreclosure 	Proceeding, 	filed
contemporaneously herewith. (See Findings Fact, Conclusions L. & Final J. on Foreclosure
Appeal, ECF No. 1686.)

The extensive background of these cases is set forth in previous orders and opinions
of this Court.4
4. 	As relevant here, on 16 October 2016, Gerald A. Jeutter, Jr. (the “Receiver”),
as Receiver for JDPW Trust U/T/A Dated June 8, 2007, Central Carolina Surgical
Eye 	Associates, 	P.A. 	(“CCSEA”), 	HUTA 	Leasing 	LLC, 	Southeastern 	Eye
Management, Inc., Southeastern Cataract Laser Center, PLLC, EMS Partners, LLC,
KEPES Newco, LLC, and DRE Newco, LLC (“DRE”), filed his Answer to the CM
Defendants’ cross claims. In that Answer, the Receiver asserted cross claims against
Douglas (“Doug”) Harris and the CM Defendants on behalf of JDPW, DRE, and
CCSEA (the “Cross Claims”).5
5. 	The Receiver’s Fourth, Sixth, and Eighth Cross Claims, reproduced below,
are at issue on the Cross Motions. Those claims for relief allege:
FOURTH CLAIM FOR RELIEF—BREACH OF TRUSTEE DUTIES
484. 	The allegations of JDPW, DRE and CCSEA set forth above are re-
alleged and incorporated here by reference.
485. 	The conduct described above constitute breach of Douglas Harris’
duties as Trustee of JDPW. These breaches were knowing, willful and
wanton with conscious disregard for his duties and with intent to cause
injury to JDPW by exposing it to liability and damages when it had
4 See In re Se. Eye Ctr.—Pending Matters, 2019 NCBC LEXIS 29, at *3–23 (N.C. Super. Ct.
May 7, 2019) [hereinafter, the “May 2019 Order”]; In re Se. Eye Ctr.—Pending Matters, 2021
NCBC LEXIS 43, at *3–18 (N.C. Super. Ct. Jan. 6, 2022) [hereinafter, the “Jan. 2022 Am.
Order”]); Order & Op. Def. Douglas S. Harris’s Mot. Dismiss Pursuant to N.C. R. Civ. P. Rules
12(b)(1) & 12(h)(3) ¶¶ 3–10, ECF No. 1683 (each reciting procedural background and citing
prior orders).
5 (Receiver’s Br. Supp. Mot. Clarification Alt. Reconsider 1, ECF No. 1612; see Receiver’s
Answer to Cross-cls. of CM Entities & Cross-cls. against Douglas Harris [hereinafter, the
“Cross Claims”], ECF No. 716.)

insufficient 	assets 	to 	pay 	debts 	that 	he 	incurred 	and 	when 	he
subsequently further reduced and diminished the assets of JDPW.
486. 	As a direct and proximate result of the conduct of Douglas Harris,
JDPW has incurred an allowed claim of $2.1 million for which it lacks
the resources to pay.
487. 	Douglas Harris undertook the described breaches of fiduciary
duty as an express trustee in whole or in part to benefit himself.
Accordingly, his conduct constitutes constructive fraud. Based upon this
constructive fraud and upon his willful and wanton conduct, punitive
and exemplary damages are appropriate and are demanded.
SIXTH CLAIM FOR RELIEF—EQUITABLE RELIEF
495. 	The allegations of JDPW, DRE and CCSEA set forth above are re-
alleged and incorporated here by reference.
496. 	JDPW, DRE and CCSEA are entitled to equitable relief to return
each of them, or any of them, as near as possible to the position they
occupied before the breaches of duty by Douglas Harris, including but
not limited rescission, restitution, an accounting, and voiding of illegal
and inequitable transactions. All such relief is requested.
SEVENTH CLAIM FOR RELIEF—SETTING ASIDE THE RELEASE
DEED AND THE ASSIGNMENT OF NOTE TO CASTLE
MCCULLOCH
497. 	The allegations of JDPW, DRE and CCSEA set forth above are re-
alleged and incorporated here by reference.
498. 	Douglas Harris, purportedly acting on behalf of, and in the name
of JDPW, provided Castle McCulloch a release deed and a partial
assignment 	of 	the 	Castle 	McCulloch 	note 	to 	NewBridge. 	No
consideration or value, or inadequate consideration and value, was
provided to JDPW for this release deed or this partial assignment of the
note.
499. 	The release deed and assignment were executed and delivered by
Douglas Harris in breach of his duties to JDPW and its creditor. At the
time of the release of the deed of trust by Douglas Harris, Castle
McCulloch was in breach of the note and the deed of trust was subject
to foreclosure to obtain performance of the note’s payment obligations.
It was the duty of Douglas Harris to foreclose on the deed of trust for the

benefit of JDPW and its creditor or to obtain equivalent value. Douglas
Harris did neither.
500. 	Castle McCulloch and Douglas Harris knew, or in the alternative,
should have known, that it was not in the best interests of JDPW, and
was not entirely fair and equitable to JDPW, for Castle McCulloch to be
released from its deed of trust to NewBridge, subsequently assigned to
JDPW. 	Castle 	McCulloch 	and 	Douglas 	Harris 	knew, 	or 	in 	the
alternative, should have known, that depriving JDPW of the deed of
trust and the portion of the note assigned to Castle McCulloch, would
render JDPW insolvent or would otherwise damage JDPW and operate
to its detriment in ways that could not be adequately compensated.
Castle McCulloch was not an innocent purchaser or a purchaser for fair
and adequate value of either the release deed or the assignment of the
note.
501. 	JDPW does not have an adequate remedy at law for the wrongful
release of its deed of trust and partial transfer of its note to Castle
McCulloch.
502. 	In fairness and equity, the assignment of the Castle McCulloch
note and the release deed for the Castle McCulloch deed of trust,
executed and delivered by Douglas Harris in breach of his duty as
trustee should be set aside and declared null and void. Furthermore, the
release deed should be stricken from the public record or should be
marked null and void. 	All further equitable relief in aid of remedying
the wrongful conduct of Douglas Harris in transferring and impairing
these assets of JDPW without receiving fair and adequate consideration
is sought by JDPW.
EIGHTH CLAIM FOR RELIEF—OTHER CAUSES OF ACTION
503. 	Having been directly and proximately damaged in excess of
$25,000 as described above, JDPW, CCSEA and DRE seek recovery
under all other causes of action allowed by North Carolina or federal law
based upon the facts, transactions and occurrences as alleged above and
proven at trial.
504. 	JDPW, CCSEA and DRE, further seek recovery from Castle
McCulloch for aiding and abetting the wrongs set forth above through
the conduct of its attorney Douglas Harris, Castle McCulloch having
knowingly accepted the benefits thereof. 	Such conduct by Castle
McCulloch in aid and encouragement of Douglas Harris and in accepting
the benefits of the wrongful conduct of Douglas Harris has directly and

proximately damaged JDPW, CCSEA and DRE in an amount in excess
of $25,000. 	Such conduct also constitutes unfair and deceptive trade
practices and otherwise entitles JDPW, CCSEA and DRE to equitable
relief.6
6. 	The Receiver seeks summary judgment on behalf of JDPW against the CM
Defendants on JDPW’s: (i) Fourth, Sixth and Seventh Cross Claims seeking equitable
remedies; (ii) Fourth Cross Claim for monetary damages; and (iii) for relief in aid of
this Court’s 6 January 2022 Amended Order and Opinion on Motions for Summary
Judgment 	or 	Partial 	Summary 	Judgment 	(Old 	Battleground 	v. 	CCSEA) 	(the
“January 2022 Amended Order”), which granted summary judgment to JDPW on its
Fourth Claim for Relief and set aside the release deed and partial assignment of the
CM Note.7
7. 	For his relief, the Receiver seeks:
a) A determination that any verbal or other modification of the Note
Purchase and Sale Agreement to accomplish the satisfaction of
the CM Note and partial satisfaction of the CCSEA Notes is void;
b) A 	determination 	that 	the 	Castle 	McCulloch 	Defendants 	are
estopped to assert statutes of limitations or any other delay by
JDPW in seeking to collect on the CM Note, in seeking to exercise
JDPW’s rights under the CM Deed of Trust or in otherwise
exercising JDPW’s rights under the CM Collateral assigned to
JDPW by NewBridge Bank;
c) 	An order that the Castle McCulloch Defendants cease and desist
in their efforts to evade enforcement of the CM Collateral by
JDPW; and
d) A monetary judgment against the Castle McCulloch Defendants
in favor of JDPW for the amount necessary to put JDPW in the
6 (Cross Claims ¶¶ 485–87, 496–504.)
7 (Receiver’s Cross Mot. 1–2; Jan. 2022 Am. Order ¶¶ 137–39.)

position it would have been but for the breach of trustee duties by
their attorney Doug Harris undertaken for the benefit of the
Castle McCulloch Defendants.8
8. 	The CM Defendants move for summary judgment as to Paragraph 504 of
the Receiver’s Eighth Cross Claim and oppose all relief sought by the Receiver on
JDPW’s Motion.9
9. 	In its Order and Opinion on Motions for Summary Judgment dated 7 May
2019, the Court granted summary judgment dismissing the Receiver’s Cross Claim
against Doug Harris set forth in paragraph 503.10 The CM Defendants subsequently
moved for summary judgment to the extent the Eighth Claim for Relief sought
recovery against the CM Defendants.11 In the Court’s January 2022 Amended Order,
the Court granted the CM Defendants’ motion on the same grounds it granted
judgment in favor of Doug Harris.12
8 (JDPW Br. Supp. Mot. Summ. J. re CM Defs. 2, ECF No. 1651.)
9 (See Br. Supp. CM Defs.’ Mot. Summ. J., ECF No. 1654.)
10 (See May 2019 Order ¶¶ 311–15 (concluding that because “[t]he Receiver’s eighth
crossclaim asserts nothing more than a general right to recover under ‘all other causes of
action allowed by North Carolina or federal law[,]’ [t]he crossclaim does not make out any
legally cognizable claim against Doug Harris and is not sufficiently stated to allow an adverse
party in Doug Harris’s position to understand the nature of the claim brought against him.”).)
11 (CM Defs.’ Br. Supp. 2d Mot. Summ. J. 9, ECF No. 1375.)
12 (See Jan. 2022 Am. Order ¶ 151 (concluding “that just as the Receiver failed to state a claim
under this count against Doug Harris, so too has the Receiver failed to state a claim against
the CM Defendants in his eighth crossclaim. The Court therefore grants the CM Defendants’
motion for summary judgment as to the Receiver’s eighth crossclaim.”).)

10. 	On 5 August 2024, the Receiver filed a Motion for Clarification, and in the
Alternative to Reconsider, Pursuant to Rule 54 (the “Motion for Clarification”),13
seeking reconsideration of the Court’s January 2022 Amended Order to the extent
that Order dismissed JDPW’s claims for relief against the CM Defendants for
“monetary and equitable relief associated with the misconduct of Doug Harris as
described in JDPW [Trust’s] Cross Claims other than its Eighth (ECF No. 716 ¶ 503)
Claim for Relief.”14
11. 	More 	specifically, 	the 	Receiver’s 	Motion 	for 	Clarification 	sought 	to
determine whether the Cross Claim set forth in paragraph 504 of the Receiver’s Cross
Claims survived the Court’s summary judgment rulings. 	The Receiver argued that
the Court’s dismissal of the Receiver’s Eighth Claim for Relief in the January 2022
Amended Order extended only to the allegations in paragraph 503, but not to the
allegations in paragraph 504. 	The CM Defendants argued in opposition that the
Court’s January 2022 Amended Order dismissed the Eighth Claim for Relief in its
entirety, including the allegations in both paragraphs 503 and 504.
12. 	After full briefing and hearing, the Court concluded in its Order resolving
the Motion for Clarification (the “Clarification Order”), filed 16 September 2024, as
follows:
(i) [T]he CM Defendants sought the dismissal of paragraph 504 in their
summary judgment motion without substantive argument, (ii) the
Receiver did not address paragraph 504 in his response or at the hearing
on the motion, and (iii) the Court thereafter dismissed the allegations
13 (Mot. Clarification Alt. Reconsider, ECF No. 1611.)
14 (Receiver’s Br. Supp. Mot. Clarification Alt. Reconsider 1.)

against the CM Defendants in paragraph 503 but did not consider or
rule on the CM Defendants’ motion for summary judgment on the
allegations against them in paragraph 504.
Accordingly, the Court concludes that the CM Defendants have sought
summary judgment on paragraph 504 of the Eighth Cross Claim, that
the CM Defendants’ motion on that claim remains pending, and that
briefing on the motion by the CM Defendants and the Receiver is
appropriate and in the interests of justice in the context of this case.15
13. 	The Court also noted in the Clarification Order that the Receiver had
indicated his intent to seek summary judgment on paragraph 504 by way of cross
motion under Rule 56(b). 	As a result, the Court ordered further briefing16 and
hearing on the CM Defendants’ Motion and the Receiver’s forecasted Motion.17 The
Receiver 	timely 	filed 	his 	Motion, 	and 	the 	Cross 	Motions 	are 	now 	ripe 	for
determination.18
II.
LEGAL STANDARD
14. 	Under Rule 56(c), “[s]ummary judgment is appropriate ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
15 	(Order 	on 	Receiver’s 	Mot. 	Clarification 	Alt. 	Reconsider 	¶¶ 10–11 	[hereinafter,
“Clarification Order”], ECF No. 1641.)
16 (Clarification Order ¶ 13(a)–(d).) At the parties’ request, the Court consolidated briefing
on the Cross Motions with post-hearing briefing in In Re: The Foreclosure of Deed of Trust of
Historic Castle McCulloch, LLC Dated September 30, 2004 (Guilford County 23 SP 1872) (the
“Foreclosure Proceeding”).
17 (Clarification Order ¶ 13(e).)
18 At the second day of the Accounting Proceeding on 7 November 2024 (see Order on Acct’g,
ECF No. 1687), the parties agreed that a hearing on the Cross Motions was unnecessary.
Accordingly, the Court elects to decide the Cross Motions without a hearing as permitted
under Business Court Rule 7.4.

affidavits, if any, show that there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.’ ” Da Silva v. WakeMed, 375
N.C. 1, 10 (2020) (quoting N.C. R. Civ. P. 56(c)). “A genuine issue of material fact is
one that can be maintained by substantial evidence.” Curlee v. Johnson, 377 N.C. 97,
101 (2021) (cleaned up). 	“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion and means more
than a scintilla or a permissible inference[.]” DeWitt v. Eveready Battery Co., 355 N.C.
672, 681 (2002) (cleaned up). 	“An issue is material if, as alleged, facts ‘would
constitute a legal defense, or would affect the result of the action or if its resolution
would prevent the party against whom it is resolved from prevailing in the action.’ ”
Bartley v. City of High Point, 381 N.C. 287, 292 (2022) (quoting Koontz v. City of
Winston-Salem, 280 N.C. 513, 518 (1972)). “When considering a motion for summary
judgment, the trial judge must view the presented evidence in a light most favorable
to the nonmoving party.” Belmont Ass’n v. Farwig, 381 N.C. 306, 310 (2022) (quoting
Dalton v. Camp, 353 N.C. 647, 651 (2001)).
15. 	“The 	party 	seeking 	summary 	judgment 	bears 	the 	initial 	burden 	of
demonstrating the absence of a genuine issue of material fact.” Liberty Mut. Ins. Co.
v. Pennington, 356 N.C. 571, 579 (2002). 	The movant may meet this burden either
(1) “by proving an essential element of the opposing party’s claim does not exist,
cannot be proven at trial, or would be barred by an affirmative defense,” or (2) “by
showing through discovery that the opposing party cannot produce evidence to
support an essential element of [its] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000)

(cleaned up). 	If the movant meets its burden, “the burden shifts to the nonmoving
party to produce a forecast of evidence demonstrating that the nonmoving party will
be able to make out at least a prima facie case at trial[.]” Cummings v. Carroll, 379
N.C. 347, 358 (2021) (cleaned up); see also N.C. R. Civ. P. 56(e) (“[A]n adverse party
may not rest upon the mere allegations or denials of his pleading, but his response,
by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.”).
III.
ANALYSIS
16. 	The 	Receiver seeks 	the 	entry 	of 	summary 	judgment against the 	CM
Defendants on JDPW’s Fourth, Sixth, Seventh, and Eighth Cross Claims and all
equitable, monetary, and other relief the Court deems appropriate. 	The Receiver’s
core contention is that the CM Defendants should be liable for the actions of their
attorney Doug Harris because Doug Harris’s breach of fiduciary duty as trustee of
JDPW was perpetrated with their knowledge and assistance, and for their benefit.19
17. 	As an initial matter, the Court notes that the Receiver’s Seventh Cross
Claim requests the Court to set aside the Release Deed and Assignment of Note to
the CM Defendants.20 	This is relief the Court has already granted,21 however, and
19 (Br. Supp. CM Defs.’ Mot. Summ. J. 7–9, 18–19.)
20 (See Cross Claims ¶ 502.)
21 (Jan. 2022 Am. Order ¶¶ 137–39.)

the Court therefore will deny the Receiver’s Motion for summary judgment on this
Cross Claim as moot.
18. 	The Receiver’s Fourth and Sixth Cross Claims present a pleading problem.
Under North Carolina law, “it is axiomatic that a defendant must be put on notice of
what it is defending against in order to avoid being ambushed.” 	B&D Software
Holdings, LLC, 2024 NCBC LEXIS 103, at *16 (N.C. Super. Ct. Aug. 1, 2024). Indeed,
our courts have recognized that “a claimant’s . . . pleading must adequately inform
the responding party of what it is alleged to have done wrong so that it can defend
itself accordingly.” Id. at *17. “This principle is undermined in cases where, as here,
a party seeks to assert a new theory of recovery for the first time at the summary
judgment stage.” Id. at *17–18. See, e.g., Bradshaw v. Maiden, 2020 NCBC LEXIS
106 (N.C. Super. Ct. Sep. 15, 2020) (holding an amended complaint did not assert a
separate negligence claim against a hedge fund administrator as it pleaded facts only
in support of a gross negligence claim), aff’d, 2022 N.C. App. LEXIS 950 (N.C. Ct.
App. Dec. 29, 2022); aff’d per curiam by a divided court, 385 N.C. 642 (2024).
19. 	Here, 	the 	Receiver’s 	Fourth 	Cross 	Claim 	does 	not 	mention 	the 	CM
Defendants and requests relief based solely on Doug Harris’s breach of duty as
trustee, “in whole or in part to benefit himself.”22 	Similarly, the Receiver’s Sixth
Cross Claim requests equitable relief returning JDPW to the position it would have
had but for Doug Harris’s breach, again without mentioning the CM Defendants or
22 (See Cross Claims ¶¶ 484–87.)

asserting a theory of agency liability based on Doug Harris’s conduct.23 Indeed, the
only Cross Claim allegations that even potentially suggest that the CM Defendants
are liable for Doug Harris’s conduct appear in the Eighth Cross Claim. Unlike many
of the Receiver’s other Cross Claims,24 however, the Eighth Cross Claim does not
incorporate the Receiver’s allegations supporting the Fourth or Sixth Cross Claims.
As a result, those Cross Claims cannot be read to incorporate any purported agency
theory advanced in the Eighth Cross Claim as the Receiver contends. Having failed
to plead the CM Defendants’ liability based on Doug Harris’s conduct in either the
Fourth or Sixth Cross Claims, the Receiver’s Motion for summary judgment in his
favor on those Cross Claims must necessarily fail. See, e.g., B&D Software Holdings,
LLC, supra, Bradshaw, supra.
20. 	Finally, as to the parties’ Cross Motions on Paragraph 504 of the Receiver’s
Eighth Cross Claim, the Court first notes that Paragraph 504 contains three
sentences.
21. 	The first sentence states that “JDPW, CCSEA and DRE, further seek
recovery from Castle McCulloch for aiding and abetting the wrongs set forth above
through the conduct of its attorney Douglas Harris, Castle McCulloch having
knowingly accepted the benefits thereof.” 	This Court has ruled, however, that “the
Supreme Court of North Carolina will not recognize the claim of aiding and abetting
breach of fiduciary duty.” Sykes v. Blue Cross & Blue Shield, 2018 NCBC LEXIS 28,
23 (See Cross Claims ¶¶ 495–96.)
24 (Cross Claims ¶¶ 484, 495, 497 (“The Allegations of JDPW, DRE, and CCSEA set forth
above are re-alleged and incorporated here by reference.”).)

at *32 (N.C. Super. Ct. Apr. 5, 2018). See also Hill v. Ewing, 2024 N.C. App. LEXIS
954, at *7 (2024) (“In another case, though we recognized a claim for breach of
fiduciary duty, we refused to recognize a cause of action for aiding and abetting this
breach) (citing BDM Invs. V. Lenhil, Inc., 264 N.C. App. 282, 302 (2019) (“[T]he North
Carolina Supreme Court has not recognized a cause of action for aiding and abetting
breach of fiduciary duty, nor do we recognize it here.”).25 The Court shall therefore
deny the Receiver’s Motion and grant the CM Defendants’ Motion as to the first
sentence of the Receiver’s Eighth Cross Claim alleging a claim against the CM
Defendants for aiding and abetting Doug Harris’s breach of fiduciary duty as JDPW’s
trustee.
22. 	The second and third sentences of the Eighth Cross Claim read as follows:
Such conduct by Castle McCulloch in aid and encouragement of Douglas
Harris and in accepting the benefits of the wrongful conduct of Douglas
Harris has directly and proximately damaged JDPW, CCSEA and DRE
in an amount in excess of $25,000. Such conduct also constitutes unfair
and deceptive trade practices and otherwise entitles JDPW, CCSEA and
DRE to equitable relief.
23. 	Although the Receiver argues that these allegations advance an agency
theory of liability against the CM Defendants, the Court disagrees. To aid an actor,
and to accept benefits from that actor, does not, without more, allege or create an
agency relationship. See, e.g., American Tours, Inc. v. Liberty Mut. Ins. Co., 315 N.C.
25 (See also Bottom v. Bailey, 238 N.C. App. 202, 211 (2014) (stating that it is undisputed that
the Supreme Court of North Carolina has never recognized a cause of action for aiding and
abetting a breach of fiduciary duty); Noble Bottling, LLC v. Gora LLC, No. 3:20-CV-00363-
KDB-DCK, 2023 U.S. Dist. LEXIS 128383, at *6 (W.D.N.C. July 24, 2023) (“There is no
dispute that Plaintiffs’ claims for aiding and abetting breach of fiduciary duty . . . are not
cognizable under North Carolina law.”).)

341, 349 (“an agent is one who acts for or in the place of another by authority from
the other”). 	As such, the Court will deny the Receiver’s Motion and grant the CM
Defendants’ Motion as to the Receiver’s Eighth Cross Claim. 	Considering that the
Receiver pleaded the Eighth Cross Claim in 2016, discovery has long since closed,
and the primary summary judgment rulings in this case were issued in 2019, 2021,
and 2022, the Court concludes that permitting amendment to the Eighth Cross Claim
would work a substantial and unfair prejudice on the CM Defendants. 	As a result,
the Court will dismiss the Receiver’s Eighth Cross Claim against the CM Defendants
with prejudice.
IV.
CONCLUSION
24. 	WHEREFORE, for the reasons set forth above, the Court hereby DENIES
the 	Receiver’s 	Motion, 	GRANTS 	the 	CM 	Defendants’ 	Motion, 	and 	hereby
DISMISSES the Receiver’s Eighth Cross Claim against the CM Defendants with
prejudice.26
26 Notwithstanding the above, the Court concludes that the Receiver’s requests for “a
determination that any verbal or other modification of the Note Purchase and Sale
Agreement to accomplish the satisfaction of the CM Note and partial satisfaction of the
CCSEA Notes is void”; “a determination that the Castle McCulloch Defendants are estopped
to assert statutes of limitations or any other delay by JDPW in seeking to collect on the CM
Note, in seeking to exercise JDPW’s rights under the CM Deed of Trust or in otherwise
exercising JDPW’s rights under the CM Collateral assigned to JDPW by NewBridge Bank”;
and “[a]n order that the Castle McCulloch Defendants cease and desist in their efforts to
evade enforcement of the CM Collateral by JDPW” are now moot in light of the Court’s
judgment in the Foreclosure Proceeding, filed contemporaneously herewith, authorizing the
Substitute Trustee to sell the Castle McCulloch Property in accordance with the provisions
of Article 2A of Chapter 45. 	(See Findings Fact, Conclusions L. & Final J. on Foreclosure
Appeal.)

25. 	Pursuant to Rule 54(b), the Court enters this Order as a final judgment
because there is no just reason for delay in entering the judgment as a final judgment
and permitting appellate review of this Order and the other orders that the Court is
entering contemporaneously herewith.
SO ORDERED, this the 19th day of December, 2024.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge