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Jackson v. Marshall11/7/2000
did not assign error to any of the trial court's findings of fact. The basis of plaintiff's claim for unfair and deceptive trade practices was the alleged egregious nature of the defendants' alleged breaches of fiduciary duty. Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308 (1999). Since defendants have not breached any duty owed to the plaintiff, a claim for unfair and deceptive trade practices in this case cannot be sustained. The plaintiff objected to the trial court's conclusion that plaintiff failed to prove he was entitled to damages. Because we hold plaintiff had no standing to sue individually, we affirm the trial judge's conclusion as to damages. Plaintiff also assigned error to the trial court's dismissal of plaintiff's claim for recission because plaintiff failed to join a necessary party, John Englert. The trial court found in finding of fact number 11 that the parties changed their position in reliance on these partnerships and as a result of this change of position, restitution is precluded. Since the trial court received evidence on the issue of recission and determined on the merits that recission was inappropriate, we need not address the alleged dismissal of the claim.
For the reasons stated, the judgment of the trial court is Affirmed.
Judge MARTIN concurs.
Judge HORTON concurs in the result with separate opinion.
HORTON, Judge, concurring in the result.
While I do not join in that portion of the majority opinion holding that "plaintiff, as a limited partner, had no standing to bring an individual, non-derivative action against the general partner of the limited partnership," I concur in the result reached by the majority.
This case is not before us on a motion to dismiss plaintiff's claims pursuant to Rule 12(b)(6) for failure to state a claim, but is an appeal from a lengthy bench trial in which numerous exhibits were entered. Although the able trial court states in its judgment that the plaintiff's claims based on breach of fiduciary duty should have been brought as derivative actions, the trial court heard voluminous testimony and found as a fact that plaintiff's "serious claims of fraud, attempts by Marshall to squeeze Jackson out, obtain partnership assets for himself or otherwise wrongfully deprive Jackson of his interest in the partnerships are not supported by any credible evidence," including plaintiff's own testimony. Thus, it appears that the trial court permitted plaintiff to offer evidence on his direct, non-derivative claims based on alleged breaches of fiduciary duty, but found after weighing all the evidence that plaintiff had not offered any believable evidence which supported his claims.
On this record, I do not believe we need to reach the issue of plaintiff's right to maintain his action for breach of fiduciary duty as a direct, non-derivative action, nor do we need to discuss the sufficiency of the allegations of plaintiff's complaint. I concur in the result reached by the majority as to plaintiff's claims based on an alleged breach of fiduciary duty by defendants, and concur fully as to plaintiff's other claims for relief.
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