Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Associate Behavioral Services, Inc. v. Smith

Court of Appeals of North Carolina

March 19, 2019

ASSOCIATE BEHAVIORAL SERVICES, INC. and GREGORY MOORE, Plaintiffs,
v.
SHIRLEY SMITH, JEANETTE SMITH, and LIFE CHANGING BEHAVIORAL HEALTH SERVICES, LLC, Defendants.

          Heard in the Court of Appeals 28 November 2018.

          Appeal 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 Services, Inc.

          Robert R. Underwood, II, for plaintiff-appellee Gregory Moore.

          The Charleston Group, by Jose A. Coker and R. Jonathan Charleston, for defendant-appellant Shirley Smith.

          DAVIS, JUDGE.

         In this 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.

         Factual and Procedural Background

         In 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.

         The 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.

         A 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.

         On 8 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 Receiver."

         On 16 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.

         On 18 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.