ASSOCIATE BEHAVIORAL SERVICES, INC. and GREGORY MOORE, Plaintiffs,
SHIRLEY SMITH, JEANETTE SMITH, and LIFE CHANGING BEHAVIORAL HEALTH SERVICES, LLC, Defendants.
in the Court of Appeals 28 November 2018.
by defendant from order entered 4 December 2017 by Judge John
R. Jolly, Jr. in Robeson County Robeson County, No. 09 CVS
3854 Superior Court.
Hutchens Law Firm LLP, by Davis W. Puryear and H. Terry
Hutchens, for plaintiff-appellee Associate Behavioral
R. Underwood, II, for plaintiff-appellee Gregory Moore.
Charleston Group, by Jose A. Coker and R. Jonathan
Charleston, for defendant-appellant Shirley Smith.
case, we consider whether the trial court erred by denying a
defendant's motion for reconsideration of the court's
prior order declining to award her attorneys' fees.
Because the motion for reconsideration did not assert any of
the grounds upon which relief may be granted under Rule 60(b)
of the North Carolina Rules of Civil Procedure and instead
requested reconsideration based on an entirely new legal
theory, we affirm.
and Procedural Background
2003, defendant Shirley Smith and Gregory Moore founded
Associate Behavioral Services, Inc. ("ABS"), a
company that provided home care services to mentally ill and
developmentally disabled persons in North Carolina. Moore and
Smith each owned fifty percent of ABS's shares. The
relationship between Moore and Smith ultimately soured after
frequent disagreements as to the management of ABS.
decline of this relationship culminated on 22 October 2009,
when Moore and ABS filed a complaint in Robeson County
Superior Court against Smith, her sister Jeanette Smith, and
Life Changing Behavioral Services, LLC ("LCBS"), a
business the two sisters had formed together. The complaint
contained a number of claims for relief, including
conversion, diversion of corporate opportunities, unfair and
deceptive trade practices, fraud, tortious interference with
contract, and civil conspiracy. On 7 December 2009, Smith
filed a motion to dismiss and an answer containing
counterclaims for fraud, conversion, diversion of corporate
opportunities, unfair and deceptive trade practices, breach
of fiduciary duty, unjust enrichment, and gross
mismanagement. Smith's answer also included a request for
dissolution of ABS, receivership, and an accounting.
hearing on Smith's motion for the appointment of a
receiver was held before the Honorable Robert F. Floyd on 8
December 2009. On 2 February 2010, the trial court entered an
order granting the motion and appointing a receiver. The case
was subsequently designated a mandatory complex business case
on 23 February 2010 and transferred to the North Carolina
Business Court two days later.
July 2011, the trial court entered an order dismissing all
claims against Jeanette Smith and LCBS. Based on its
determination that neither Moore nor Smith had standing to
assert claims or counterclaims on behalf of ABS, the trial
court entered an order dismissing these claims on 11 August
2011. The order further provided that "[t]he [c]laims
against Smith and the [c]ounterclaims against Moore asserted
in this matter shall remain in place, but may be prosecuted
only by and on behalf of ABS, acting through the
January 2013, Moore filed a motion to remove the receiver and
dissolve the receivership. In addition, he made a separate
motion to (1) allow him to pursue derivative claims on behalf
of ABS; (2) permit him to pursue his individual claims
against Smith; and (3) reinstate the claims against Jeanette
Smith and LCBS. Smith filed a response to Moore's motions
on 5 February 2013 in which she requested an award of
attorneys' fees pursuant to Rule 11 of the North Carolina
Rules of Civil Procedure and N.C. Gen. Stat. § 6-21.5.
July 2016, the trial court issued an order (the
"Dismissal Order") that (1) dismissed all of the
parties' remaining claims and counterclaims; (2) directed
that the receiver liquidate and dissolve ABS; and (3) ordered
that once the liquidation and dissolution had ...