Opinion
No. COA11–989.
2012-09-4
Marie Wyatt WHITWORTH, Plaintiff, v. ESTATE OF Wesley Todd WHITWORTH; Tammy Whitworth, individually and as Executor of the Estate of Wesley Todd Whitworth; and Window World, Inc., Defendants.
Robinson & Lawing, L.L.P., by Michael L. Robinson, Kevin L. Miller, and H. Stephen Robinson; and The McElwee Firm, by William H. McElwee, III, for plaintiff-appellant. Sigmon, Clark, Mackie, Hanvey & Ferrell, PA, by Forrest A. Ferrell and Matthew J. Middleton, for defendants-appellees.
Appeal by plaintiff from order entered 4 April 2011 by Judge A. Moses Massey in Wilkes County Superior Court. Heard in the Court of Appeals 25 January 2012. Robinson & Lawing, L.L.P., by Michael L. Robinson, Kevin L. Miller, and H. Stephen Robinson; and The McElwee Firm, by William H. McElwee, III, for plaintiff-appellant. Sigmon, Clark, Mackie, Hanvey & Ferrell, PA, by Forrest A. Ferrell and Matthew J. Middleton, for defendants-appellees.
GEER, Judge.
Plaintiff Marie Wyatt Whitworth appeals from an order granting defendants' motion to dismiss for lack of subject matter jurisdiction. Defendants—the Estate of Wesley Todd Whitworth (“the Estate”), Tammy Whitworth, and Window World, Inc.—argue that because plaintiff's claims arise out of agreements and orders entered in an equitable distribution action, plaintiff was required to proceed in district court, and the superior court, therefore, lacked subject matter jurisdiction.
Because we find the superior court had jurisdiction over plaintiff's claims against the Estate and Tammy Whitworth, we reverse as to those defendants. We also hold, based on N.C. Gen.Stat. § 75D–8 (2011), that the superior court has jurisdiction over plaintiff's claims against all defendants under the North Carolina RICO Act. We agree with the trial court, however, that the remaining claims asserted against Window World had to be brought in the district court. We, therefore, affirm in part and reverse in part.
Facts
Plaintiff and Ruben Leon Whitworth, her husband at that time, incorporated Window World in 1995. Their son, Todd, was appointed president in 2002. The business grew to have gross sales in excess of $250 million in 2006. Todd managed day-to-day operations, while Leon served as CEO and director and plaintiff served as corporate secretary and director.
Plaintiff and Leon Whitworth separated on 23 May 2007. On 6 August 2007, plaintiff filed an action in district court against Leon, seeking equitable distribution, injunctive relief, and an interim distribution. Window World moved to intervene in the equitable distribution action on 8 August 2007. Although the trial judge indicated during the hearing on the motion to intervene that she was allowing the motion, no order was signed until after the case was concluded with a final equitable distribution judgment.
On or about 11 September 2007, plaintiff, Leon, and Window World entered into a Redemption Agreement. That agreement noted that plaintiff and Leon each owned 29,885 shares of Window World stock. Under the agreement, Window World was required to purchase Leon's shares at a price of $33,000,000.00 plus interest at the rate of 2% per annum, with $3,000,000.00 paid as a down payment and the remainder paid in equal monthly installments of $276,040.36 per year over a 10–year period. Window World was required to purchase plaintiff's shares for “the principal sum of $1,000,000 per year plus interest at the rate of 2% per annum for the remainder of her natural life. This sum shall be paid in equal monthly installments of $106,336.89....”
On 6 November 2007, the district court entered a consent order (the “Window World Consent Order”) signed by plaintiff, Leon, and Window World “resolv[ing] all pending issues, claims, and contentions of each party in [the district court action] which relate specifically to Window World, Inc.” The order further stated that “[n]othing in this Consent Order shall be deemed to waive any rights the Plaintiff or Defendant have to any issues, claims, or contentions in [the district court action] other than those specifically set forth in this Consent Order.”
The Window World Consent Order provided that Leon would give plaintiff 5,000 shares of Window World stock, with the effect that each spouse would then own 30,000 shares of stock. Plaintiff and Leon were then required to each transfer to their son Todd 115 shares of stock. Following the transfer of the stock, plaintiff and Leon were required to enter into a Redemption Agreement pursuant to which Window World would redeem all the stock held by plaintiff and Leon. The order recited the same terms set forth in the Redemption Agreement that had already been signed. The order further provided that upon execution of the Redemption Agreement, plaintiff and Leon would resign their positions as officers and directors of Window World and would give up rights to various pieces of property.
At some point after the signing of the Window World Consent Order, plaintiff and Leon signed a document entitled “CONSENT TO REPRESENTATION.” That document stated that attorney Jay Vannoy had represented Window World in the district court action and had acted as Window World's corporate counsel prior to the filing of the district court action. Nevertheless, plaintiff and Leon agreed to have Mr. Vannoy represent plaintiff, who had discharged her attorney, in finally resolving the equitable distribution issues still pending through a consent order.
On 24 January 2008, the district court entered a consent order/judgment “[i]n full, final and complete Equitable Distribution of marital property” between plaintiff and Leon. Among the property distributed to plaintiff and to Leon was “[a]ll property or rights to property as set out in that Consent Order filed in this cause November 6, 2007.” The terms of the consent order (the “final Equitable Distribution Consent Order/Judgment”) were “in total, absolute and complete satisfaction of the rights of either party under and pursuant to the provision of the Equitable Distribution statute of the State of North Carolina, N.C.G.S. § 50–20, et seq., as well as all other issues raised by the pleadings, and that neither party shall hereafter assert any claim, action or cause of action whatsoever arising out of or through said statute or otherwise arising out of any claims raised by the pleadings....” The order closed by stating: “This settles and resolves all claims raised by the pleadings.”
On 5 February 2010, Todd Whitworth died. On 22 June 2010, plaintiff filed this action against (1) Todd's Estate, (2) Todd's wife Tammy, individually and as executrix of the Estate, and (3) Window World. The complaint asserted claims for breach of fiduciary duty, constructive fraud, fraud, rescission, breach of contract, conversion, and violation of the North Carolina RICO Act. These claims were based on allegations that, beginning in 2007, Todd “embarked with his wife Tammy, upon a course of conduct which was calculated to, and in fact did, place unbearable mental and emotional duress upon Marie in order to wrest Marie's ownership of [Window World] from Marie.” The complaint alleged that the Redemption Agreement and Window World Consent Order were part of a “Takeover Scheme” and that plaintiff and Leon signed the documents under duress due to threats by Todd that he would otherwise commit suicide and threats by Tammy that plaintiff and Leon would never see their grandchildren again.
On 12 August 2010, more than two years following entry of the final Equitable Distribution Order/Judgment and without notice to plaintiff or Leon, Window World returned to district court and had the district court judge enter an order allowing Window World's motion to intervene nunc pro tunc to 14 August 2007. The district court subsequently denied plaintiff's motion pursuant to Rule 60 of the Rules of Civil Procedure to set aside the intervention order. Plaintiff appealed that denial. In an opinion filed simultaneously with this opinion, this Court has reversed the trial court's order denying the Rule 60 motion and has vacated the 12 August 2010 order. See Whitworth v. Whitworth, ––– N.C.App. ––––, ––– S.E.2d –––– (Sept. 4, 2012).
On 10 September 2010, after obtaining the district court intervention order, defendants filed an answer denying the material allegations of the complaint and asserting numerous affirmative defenses based on the Redemption Agreement and the Window World Consent Order. Defendants also counterclaimed for unjust enrichment. On 4 March 2011, defendants filed a motion to dismiss pursuant to Rule 12(b)(1) of the Rules of Civil Procedure for lack of subject matter jurisdiction, attaching plaintiff's district court equitable distribution complaint, Window World's motion to intervene in the equitable distribution action, the 12 August 2010 order granting the motion to intervene, the Redemption Agreement, the Window World Consent Order, the Consent to Representation, the Final Equitable Distribution Consent Order/Judgment, and plaintiff's responses to defendants' first request for admissions.
On 4 April 2011, the trial court, after reviewing all of the exhibits, concluded “that the district court action filed by the Plaintiff on August 6, 2007, in Wilkes County District Court, whereby the Plaintiff invoked the subject matter jurisdiction over her claim for equitable distribution of her marital property, which she identifies as all of her Window World stock and her interest in Window World, deprives the superior court from exercising jurisdiction over the subject matter raised by the Plaintiff's Complaint filed June 22, 2010.” The court further concluded that, for the same reasons, the superior court lacked subject matter jurisdiction over defendants' counterclaim. The trial court, therefore, dismissed this action. Plaintiff timely appealed to this Court.
Discussion
Subject matter jurisdiction is a “threshold requirement for a court to hear and adjudicate a controversy brought before it.” In re M.B., 179 N.C.App. 572, 574, 635 S.E.2d 8, 10 (2006). Subject matter jurisdiction “ ‘is conferred upon the courts by either the North Carolina Constitution or by statute.’ “ In re McKinney, 158 N.C.App. 441, 443, 581 S.E.2d 793, 795 (2003) (quoting Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987)). In this opinion, we address only whether the trial court had subject matter jurisdiction. We do not address whether any of the claims asserted by plaintiff are sufficient under Rule 12(b)(6) or Rule 12(c) of the Rules of Civil Procedure. Nor do we address defendants' affirmative defenses.
Defendants have argued that the superior court lacked jurisdiction because plaintiff, by filing her equitable distribution action in district court, invoked the district court's jurisdiction pursuant to N.C. Gen.Stat. § 7A–244 (2011), which provides:
The district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.
While there is no question that plaintiff invoked the jurisdiction of the district court for her equitable distribution claim, that fact is not dispositive regarding the superior court's jurisdiction over plaintiff's claims.
In support of the trial court's dismissal of the superior court action, defendants rely on Hudson Int'l, Inc. v. Hudson, 145 N.C.App. 631, 550 S.E.2d 571 (2001), and Garrison v. Garrison, 90 N .C.App. 670, 369 S.E.2d 628 (1988). These decisions establish that when “an action listed in section 7A244 has been previously filed in district court and another action relating to the subject matter of the previously filed action is then filed in superior court, the district court's jurisdiction over the subject matter has already been invoked by the parties to the first action. It follows that the superior court does not have jurisdiction in the subsequently filed action, irrespective of the parties to the first action.” Hudson Int'l, Inc., 145 N.C.App. at 637, 550 S.E.2d at 575.See also Garrison, 90 N.C.App. at 672, 369 S.E.2d at 629 (“The superior court has no authority to partition marital property ... where, as here, the jurisdiction of the district court has been properly invoked to equitably distribute such marital property.”).
We first note that defendants have not cited any case in which, as here, the district court action is no longer pending. In Sparks v. Peacock, 129 N.C.App. 640, 641, 500 S.E.2d 116, 117 (1998), this Court suggested that the principles set out in Garrison and Hudson may not be applicable in the absence of a pending district court action when the Court noted that “[i]t is of critical importance to this case that there is not an equitable distribution action currently pending between the parties.” We need not, however, resolve this question given more recent decisions of this Court.
In Burgess v. Burgess, 205 N.C.App. 325, 328–29, 698 S.E.2d 666, 669 (2010), this Court explained that “[a]t the core of Garrison and Hudson were two principles: (1) the same property was the subject of both the superior and district court actions, and (2) the relief sought and available was similar in each suit.” The Court stressed, in its analysis, that “[i]n an equitable distribution action, the district court is empowered to ‘determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties in accordance with the provisions of this section.’ “ Id. at 330,698 S.E.2d at 670 (quoting N.C. Gen.Stat. § 50–20(a) (2009)).
In Burgess, the Court addressed whether the superior court had jurisdiction over a shareholder derivative action brought by one spouse on behalf of a company jointly owned by the two spouses—the ownership of the company was at issue in the parties' equitable distribution action. Id. at 326, 698 S.E.2d at 677. The Court analyzed each of the plaintiff's superior court claims separately. The Court concluded that the superior court had no jurisdiction over the plaintiff's equitable claim for divestiture of her former husband's shares in the company because that claim was “squarely addressed in her equitable distribution action.” Id. at 330, 698 S.E.2d at 670.
The Court, however, reached a different conclusion with respect to the plaintiff's shareholder derivative action based on breach of fiduciary duty, as well as her accompanying request for an inspection and an accounting. As to those claims, the Court concluded that the superior court had jurisdiction notwithstanding the pending district court action because (1) “plaintiff's derivative claim in her shareholder suit does not concern the division of marital property”; (2) “she asserts a separate claim for relief, outside the scope of section 50–20” in superior court; (3) even if the company “was added as a party to the equitable distribution action, plaintiff's right to relief would not be expanded to include the type of relief sought in the derivative suit”; and (4) “[t]he district court in this case does not, and more importantly, cannot, obtain jurisdiction over plaintiff's shareholder derivative suit by statute.” Id. at 331–32, 698 S.E .2d at 670–71.
As in Burgess, we address each of plaintiff's claims in this case individually. We first note that plaintiff's complaint does not identify which claims relate to which defendants. With respect to the claims against the Estate and against Tammy Whitworth, neither Todd nor Tammy were parties to the district court proceeding, the Redemption Agreement, or the Window World Consent Order. It is undisputed that Todd signed the Redemption Agreement and the Window World Consent Order in his capacity as President of Window World.
Plaintiff's causes of action for rescission, breach of contract, and conversion all relate to the Redemption Agreement. As Todd and Tammy were not parties to that agreement or any of the consent orders at issue in this case, those causes of action cannot be applicable to them. See Barrow v. Murphrey, 95 N.C.App. 738, 741, 383 S.E.2d 684, 686 (1989) (“ ‘It is a fundamental principle of contract law that parties to a contract may bind only themselves and ... may not bind a third person who is not a party to the contract in absence of his consent to be bound.’ “ (quoting Nationwide Mut. Ins. Co. v. Chantos, 293 N.C. 431, 438, 238 S.E.2d 597, 602–03 (1977))).
With respect to the claims for breach of fiduciary duty, constructive fraud, fraud, and the North Carolina RICO Act, plaintiff seeks damages from the Estate and Tammy. While the dispute over Window World and plaintiff's previous stock ownership provide the context for plaintiff's dispute in this case, that property (Window World and the stock) is not the subject of her superior court tort claims for damages asserted against the Estate and Tammy. See Jessee v. Jessee, ––– N.C.App. ––––, ––––, 713 S .E.2d 28, 36 (2011) (in holding that superior court had jurisdiction over tort claims, “the extent to which Defendants utilized impermissibly obtained funds to obtain clear title to and then fraudulently transferred the unencumbered former marital residence to Defendant Jessee Family Trust has little, if anything, to do with claims between Plaintiff and Defendant as to the value of that asset and the extent to which and manner in which it is subject to distribution between the parties pursuant to N.C. Gen.Stat. § 50–20”). Thus, the first prong of Burgess—that the same property be the subject of the superior and district court actions—is not met. Burgess, 205 N.C.App. at 328–29, 698 S.E.2d at 669.
In addition, plaintiff would not have been able to obtain damages from the Estate and Tammy, including the punitive damages and treble damages she seeks, in the equitable distribution action. We note that because the action is no longer pending, plaintiff could not join the Estate and Tammy in the district court proceeding. Compare Hudson Int'l, Inc., 145 N.C.App. at 638, 550 S.E.2d at 575 (holding that dismissal of action without prejudice under Rule 12(b)(1) allowed plaintiff to become party to district court action and obtain relief sought in superior court). In any event, even if joinder were still possible, plaintiff's damages claims do not involve the classification of marital property or its distribution—the relief available in an equitable distribution action. See Burgess, 205 N.C.App. at 332, 698 S.E.2d at 671 (“Moreover, if Burgess & Associates was added as a party to the equitable distribution action, plaintiff's right to relief would not be expanded to include the type of relief sought in the derivative suit.”). Consequently, the second prong of Burgess also is not met. Id.
In summary, just as in Burgess, plaintiff's claims against the Estate and Tammy do not concern the division of marital property; she asserts claims for relief against those two defendants outside the scope of N.C. Gen.Stat. § 50–20 (2011); and even if the Estate and Tammy could be added as parties to the equitable distribution proceeding, the relief plaintiff seeks would not be available. We also fail to see how a RICO claim could be asserted in an equitable distribution action. Consequently, the trial court erred in dismissing under Rule 12(b)(1) the claims against the Estate and Tammy for breach of fiduciary duty, constructive fraud, fraud, and the North Carolina RICO Act (except to the extent those claims seek rescission). See Burgess, 205 N.C.App. at 332, 698 S.E.2d at 671.
Turning to the claims against Window World, the parties vigorously debate whether Window World was a party to the equitable distribution action. While this Court has vacated the intervention order entered in the district court in 2010, see Whitworth v. Whitworth, ––– N.C.App. ––––, ––– S.E.2d –––– (Sept. 4, 2012), we hold that the Window World Consent Order was sufficient to make Window World a party to the equitable distribution action. The Consent Order includes Window World in the caption identified as an intervenor and the portion of the order reciting the parties notes that “Intervenor, Window World, Inc., is represented by Attorney Jay Vannoy.” The Order states that “Window World, Inc. wishes to redeem all the shares of stock currently owned by the Plaintiff and Defendant” and that “[a]ll the parties wish to enter this Consent Order to resolve all the issues, claims, and contentions pending between them that relate specifically to Window World, Inc.”
Significantly, the decretal portion of the Consent Order not only addresses what plaintiff and Leon Whitworth must do, but also expressly orders Window World to take specified actions. The Consent Order then provides that “[t]his Consent Order shall resolve all pending issues, claims, and contentions of each party in 07 CVD 1179 which relate specifically to Window World, Inc.” Plaintiff, Leon, and Todd, as president for Window World, all signed the Consent Order. While the better practice would have been to enter a timely written order expressly allowing the motion to intervene, we hold that the Window World Consent Order—in which the district court exercised its jurisdiction over Window World—was sufficient to make Window World a party to the equitable distribution action.
None of the case law cited by the parties regarding whether the district court had exclusive jurisdiction over claims against Window World addresses the situation in which a party successfully invoked the jurisdiction of the district court in an equitable distribution action, a final disposition of that action was entered, and, therefore, no action was pending at the time the superior court action was filed. Even assuming, without deciding, that Hudson and Garrison have no application when the district court action is no longer pending, we hold that the superior court properly dismissed the claims against Window World for breach of fiduciary duty, constructive fraud, fraud, and rescission as an improper collateral attack on the judgment in the equitable distribution action.
Plaintiff argues that she may proceed with her claims in superior court because the Window World Consent Order is void and a party may seek to set aside a void order either by a motion in the cause pursuant to Rule 60(b) or by collateral attack in a separate proceeding. “ ‘A collateral attack is one in which a plaintiff is not entitled to the relief demanded in the complaint unless the judgment in another action is adjudicated invalid.’ “ Clayton v. N.C. State Bar, 168 N.C.App. 717, 719, 608 S.E.2d 821, 822 (2005) (quoting Thrasher v. Thrasher, 4 N.C.App. 534, 540, 167 S.E.2d 549, 553 (1969)).
Here, to the extent plaintiff's complaint can be read as asserting claims against Window World for breach of fiduciary duty, constructive fraud, fraud, and rescission, those claims all would require that the superior court find that plaintiff entered into the Redemption Agreement and Window World Consent Order involuntarily and as a result of fraud, duress, and undue influence. However, the Window World Consent Order, which required the parties to enter into the Redemption Agreement, provided:
10. This Consent Order shall resolve all pending issues, claims, and contentions of each party in 07 CVD 1179 which relate specifically to Window World, Inc.
....
12. The parties stipulate and agree that this Consent Order is entered freely and voluntarily fully understanding what each party is doing. The parties stipulate and agree that no one has promised them anything or threatened or coerced them in any way to cause them to enter into this Consent Order against their wishes. The parties further stipulate and agree that each party has read this Consent Order in its entirety and has reviewed the contents of this Consent Order in its entirety with the party's attorneys, accountants, or other advisors.
In addition, the final Equitable Distribution Consent Order/Judgment, which finally resolved all of the equitable distribution issues and distributed the marital property, incorporated by reference the Window World Consent Order. For both plaintiff and Leon, the final Equitable Distribution Consent Order/Judgment specified that “[i]n full, final and complete Equitable Distribution of marital property,” each party would have, among other property, “[a]ll property or rights to property as set out in that Consent Order filed in this cause November 6, 2007.” Plaintiff's claims against Window World, which would rescind the Window World Consent Order and the Redemption Agreement, would, therefore, also require undoing the final Equitable Distribution Consent Order/Judgment.
Plaintiff appears to argue, however, that she is entitled to bring an independent action collaterally attacking the Window World Consent Order because that order was obtained through fraud, duress, and undue influence. It is, however, “well settled in this jurisdiction ‘that in order to sustain a collateral attack on a judgment for fraud it is necessary that the allegations of the complaint set forth facts constituting extrinsic or collateral fraud in the procurement of the judgment, and not merely intrinsic fraud, that is, arising within the proceeding itself and concerning some matter necessarily under the consideration of the court upon the merits.’ “ Caswell Realty Assocs. I v. Andrews Co., 121 N.C.App. 483, 486, 466 S.E.2d 310, 312 (1996) (quoting Scott v. Farmers Coop. Exch., Inc., 274 N.C. 179, 182, 161 S.E.2d 473, 476 (1968)).
Extrinsic fraud “ ‘deprives the unsuccessful party of an opportunity to present his case to the court.’ “ Hooks v. Eckman, 159 N.C.App. 681, 684, 587 S.E.2d 352, 354 (2003) (quoting Stokley v. Stokley, 30 N.C.App. 351, 354, 227 S.E.2d 131, 134 (1976)). Intrinsic fraud “occurs when a party (1) has proper notice of an action, (2) has not been prevented from full participation in the action, and (3) has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary.” Id. Phrased differently, “intrinsic fraud describes matters that are involved in the determination of a cause on its merits. In contrast, extrinsic fraud prevents a court from making a judgment on the merits of a case.” Id. at 684–85,587 S.E.2d at 354. When the fraud is characterized as intrinsic, then relief is possible only through a motion in the cause pursuant to Rule 60(b)(3). Id. at 685, 587 S.E.2d at 354.
Here, plaintiff argues only intrinsic fraud. Therefore, in order to have the Window World Consent Order set aside, she was required to proceed by way of a motion in the cause under Rule 60 of the Rules of Civil Procedure. While plaintiff also argues that because Window World was a non-party to the equitable distribution action, she was required to proceed in an independent action, we have concluded that Window World was a party. Therefore, plaintiff was required to proceed by way of a motion in the cause.
With respect to plaintiff's claims of duress and undue influence, plaintiff cites no cases, and we have found none, suggesting that a party has the right to bring an independent action collaterally attacking an order alleged to have been obtained by duress or undue influence. Plaintiff cites Coppley v. Coppley, 128 N.C.App. 658, 666–67, 496 S.E.2d 611, 618 (1998), as being “on point” because the Court concluded that a party was entitled to have a consent order set aside because it was obtained by threats. In Coppley, however, the plaintiff sought relief through a motion in the cause pursuant to Rule 60(b). Nothing in Coppley suggests that a party may collaterally attack an order in an independent action based on duress or undue influence. See also Yurek v. Shaffer, 198 N.C.App. 67, 79, 678 S.E.2d 738, 746 (2009) (discussing impact of duress and undue influence on consent order in context of Rule 60(b) motion).
Accordingly, we hold that the trial court properly dismissed the claims against Window World for breach of fiduciary duty, constructive fraud, fraud, and rescission. Plaintiff, however, also asserted claims for breach of contract, arguing that Window World failed to comply with the terms of the Redemption Agreement, and for conversion of her stock based on that breach of contract.
As to these claims, the final Equitable Distribution Consent Order/Judgment provided that “this Decree is enforceable by the contempt powers of the Court should any party not comply with its terms....” Plaintiff appears to argue that she was nonetheless entitled to proceed in a separate superior court action because Window World was not a party to the equitable distribution action, an argument we have rejected, and because the provisions at issue in the Redemption Agreement were not set out in the Window World Consent Order.
As for this latter argument, the final Equitable Distribution Consent Order/Judgment specifically incorporated by reference the Window World Consent Order and the Window World Consent Order in turn incorporated by reference the Redemption Agreement. We hold, therefore, that to the extent Window World has failed to comply with the Redemption Agreement, plaintiff should enforce that agreement in the district court. See Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983) (“These court ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.”). The trial court, therefore, also properly dismissed the contract and conversion claims asserted against Window World.
Finally, with respect to the North Carolina RICO claim, defendants have acknowledged that jurisdiction lies within the superior court. Defendants appear to argue that dismissal was proper based on res judicata and collateral estoppel and because the claim potentially may amount to a collateral attack. We cannot determine from the complaint whether the North Carolina RICO claim will necessarily amount to a collateral attack, and defendants' affirmative defenses are not before this Court in this appeal. Consequently, we hold that the trial court erred in dismissing plaintiff's claim against Window World under the North Carolina RICO Act for lack of subject matter jurisdiction.
Conclusion
We hold that the trial court erred in dismissing plaintiff's damages claims against the Estate and Tammy Whitworth based on breach of fiduciary duty, constructive fraud, fraud, and the North Carolina RICO Act. We also hold that the trial court erred in dismissing plaintiff's claim against Window World under the North Carolina RICO Act. We hold that the trial court properly dismissed the remaining claims.
Affirmed in part; reversed in part. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).