IN THE SUPREME COURT OF NORTH CAROLINA
No. 376A21
Filed 6 April 2023
MICHAEL G. WOODCOCK, M.D., CAROL WADON, CAMILLE WAHBEH, and
GEORGE DEMETRI
v.
CUMBERLAND COUNTY HOSPITAL SYSTEM, INC. and CAPE FEAR VALLEY
AMBULATORY SURGERY CENTER, LLC
Appeal pursuant to N.C.G.S. § 7A-27(a)(2) from an order on defendants’ motion
for award of attorneys’ fees as part of costs under Rule 41(d) of the North Carolina
Rules of Civil Procedure entered on 23 March 2021 and an order on defendants’
application for attorneys’ fees and costs entered on 17 June 2021 both by Judge
Gregory P. McGuire, Special Superior Court Judge for Complex Business Cases, in
Superior Court, Guilford County, after the case was designated a mandatory complex
business case by the Chief Justice pursuant to N.C.G.S. § 7A-45.4(a). Heard in the
Supreme Court on 1 February 2023.
Douglas S. Harris for plaintiff-appellants.
K&L Gates LLP, by Susan K. Hackney, Marla T. Reschly, and Daniel D.
McClurg, for defendant-appellees.
BARRINGER, Justice.
In this matter, we address plaintiffs’ challenges to the trial court’s entry of an
order granting defendants’ motion for award of attorneys’ fees as part of their costs
WOODCOCK V. CUMBERLAND CNTY. HOSP. SYS., INC.
Opinion of the Court
under North Carolina Rule of Civil Procedure 41(d) pursuant to N.C.G.S. § 6-21.5 and
the trial court’s subsequent order awarding $599,262.00 in attorneys’ fees as costs.
Given the unchallenged findings of fact and unchallenged conclusions of law, we
affirm the trial court’s order allowing attorneys’ fees as part of costs and the resulting
order awarding $599,262.00 in attorneys’ fees. On the record and arguments before
us, the trial court did not abuse its discretion as it relates to either order.
I. Background
As set forth in the trial court’s order allowing an award of attorneys’ fees,
plaintiffs are limited partners of the Fayetteville Ambulatory Surgery Center Limited
Partnership (FASC), which operates an ambulatory surgery center in Fayetteville,
North Carolina. Plaintiffs in their individual capacities sued the general partner of
FASC, defendant Cape Fear Valley Ambulatory Surgery Center, LLC (CFV), and
CFV’s owner, defendant Cumberland County Hospital System, Inc. (CCHS).
Specifically, the trial court found the procedural history of this matter to be as
follows:1
2. Plaintiff Michael Woodcock (“Woodcock”) filed
his initial Complaint against CCHS on September 26,
2019, asserting various causes of action in his individual
capacity, all of which related to the ownership and
operation of FASC. On October 14, 2019, Woodcock filed his
first Amended Complaint, adding an additional claim, also
in his individual capacity.
3. On December 12, 2019, CCHS filed a motion to
stay, forecasting that it intended to seek dismissal under
1 For readability, the trial court’s citations to the record have been omitted.
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WOODCOCK V. CUMBERLAND CNTY. HOSP. SYS., INC.
Opinion of the Court
Rules 12(b)(1) and 12(b)(6) “because Plaintiff lack[ed]
standing to assert any of the claims that he purport[ed] to
bring.” A week later, on December 18, 2019, CCHS filed its
Motion to Dismiss Plaintiff’s Amended Complaint
Pursuant to Rule 12(b)(1) or, Alternatively, Rule 12(b)(6).
Featured prominently in the introduction section of
CCHS’s brief in support of their Motion to Dismiss,
Defendants argued “Plaintiff [Woodcock] lacks standing to
assert any of the claims that he purports to bring.” In its
reply in support of the Motion to Dismiss filed January 31,
2020, CCHS again argued that Woodcock lacked individual
standing: “[t]he sole ground upon which [CCHS] moves to
dismiss is that Plaintiff lacks individual standing to assert
any of the claims that he purports to bring.”
4. A week later, on February 5, 2020, Woodcock
moved for leave to amend the First Amended Complaint,
and simultaneously filed a proposed Second Amended
Complaint. The Court granted Woodcock’s motion, allowed
Wadon, Wahbeh, and Demitri2 to join as plaintiffs, deemed
the Second Amended Complaint filed as of that date, and
denied the pending Motion to Dismiss as Moot. Through
the Second Amended Complaint, Plaintiffs, in their
individual capacities, asserted five claims against CCHS
and/or CFV.
5. On March 19, 2020, Defendants filed their
Answer and Affirmative Defenses to Plaintiffs’ Second
Amended Complaint. Among Defendants’ affirmative
defenses, Defendants contended that “Plaintiffs’ claims
were barred due to subject matter jurisdiction” and “for
failure to state a claim upon which relief may be granted.”
6. On June 26, 2020, Defendants filed a Motion for
Judgment on the Pleadings Pursuant to Rule 12(c). In the
first two sentences of the introduction section of
Defendants’ brief in support of the Motion for Judgment,
Defendants argued:
2This plaintiff’s name is spelled “Demetri” in the case caption and elsewhere in the
Record on Appeal.
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Opinion of the Court
[The Second Amended Complaint] suffers
from the same fatal deficiency as Woodcock’s
[F]irst Amended Complaint, a deficiency
addressed at length in [CCHS’s] prior
[M]otion to [D]ismiss. Plaintiffs, all of whom
are limited partners, improperly attempt to
bring individual claims against Defendants.
7. Plaintiffs only responded to the Defendants’
standing argument with respect to the second cause of
action—breach of contract against CFV—advancing
arguments completely absent from their Second Amended
Complaint; notably, that Plaintiffs’ [sic] were denied their
voting rights under Section 14.3 of the Partnership
Agreement, and that such deprivation of voting rights
creates an individual right properly the subject of a direct
claim. In their reply, Defendants argue, inter alia, that
Plaintiffs did not plead facts in their complaint that
Plaintiffs now argue confer standing. At the September 23,
2020 hearing on the Motion for Judgment, the Court
expressed skepticism as to Plaintiffs’ arguments, noting
Plaintiffs’ failure to include facts in the Second Amended
Complaint that would support their theories, and
explaining that North Carolina law requires Plaintiffs to
assert their claims derivatively, not individually.
8. For the next two months, Plaintiffs served
discovery and sought to depose senior CCHS executives
and the corporate representative of CFV.
9. On November 24, 2020, Plaintiffs voluntarily
dismissed the case, without prejudice, pursuant to Rule
41(a)(1), and forecasted their intent to re-file some or all of
their claims as derivative claims on behalf of FASC.
10. On January 11, 2021, Plaintiffs’ counsel sent a
formal demand to CFV, demanding CFV re-assert the
claims Plaintiffs previously brought in this action, plus a
claim arising out of the PPP.3 The letter indicated that:
3 “PPP” stands for “Paycheck Protection Program.”
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Opinion of the Court
[i]f the General Partner does not take these
actions, then the Limited Partners will take
these actions in place of the General Partner
in a combination of derivative actions on
behalf of FAC [sic] and actions to pursue the
Limited Partner’s [sic] individual rights—
their voting rights—which have been wholly
denied . . . .
11. On February 3, 2021, Defendants brought the
Motion for Fees. Plaintiff’s [sic] filed a Response to
Defendants’ Motion for Attorneys’ Fees and Defendants
filed a Reply in Support of Motion for Award of Attorneys’
Fees. The Motion for Fees is now ripe for decision.
(Alterations in original and footnotes omitted).
The trial court further found and concluded:4
18. The Initial Complaint, First Amended
Complaint, and Second Amended Complaint all brought
claims against Defendants in Plaintiffs’ individual
capacities for what essentially amounted to breaches of
Section 14.5, Section 10.1, and Article XII of the
Partnership Agreement.
....
21. . . . Plaintiffs did not allege derivative claims
and did not allege that a pre-suit demand was made on the
general partner or partnership relating to the claims they
raised in this lawsuit, or any reason that would have
excused such a demand. . . .
22. . . . Plaintiffs do not argue that their claims
were subject to the “special duty” exception in their
response to the Motion for Judgment or in their Response
4 Because plaintiffs have not challenged the trial court’s conclusions of law, we do not
address the soundness of the trial court’s legal analysis herein. We also have omitted the trial
court’s statement of the law and citations to court decisions to avoid any suggestion that we
are affirming the trial court’s summary of the law and legal analysis as it relates to standing.
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WOODCOCK V. CUMBERLAND CNTY. HOSP. SYS., INC.
Opinion of the Court
Brief to the Motion for Fees. . . .
23. Instead of a special duty owed by Defendants,
Plaintiffs argue that they suffered a “separate and distinct
injury” because they were denied their contractual right to
vote under Section 14.3 and Section 19.1 of the Partnership
Agreement. However, nowhere in the Initial Complaint,
First Amended Complaint, or Second Amended Complaint
is there any reference to or allegation that Defendants
denied Plaintiffs’ voting rights under the Partnership
Agreement, nor is there any mention of Section 14.3 or 19.1
of the agreement. In other words, despite their multiple
amendments and opportunities to raise claims, Plaintiffs
failed to make allegations supporting their claim of
separate and distinct injury. . . .
24. The [c]ourt concludes that Plaintiffs lacked
standing to bring the claims asserted in the Initial
Complaint, First Amended Complaint, and Second
Amended Complaint as direct, individual actions.
Defendants repeatedly placed Plaintiffs on notice of the
deficiency in their claims through multiple motions and
briefs expressly and specifically challenging Plaintiffs’
standing. . . . Instead, Plaintiffs ignored Defendants’
standing arguments, and persisted litigating their non-
justiciable claims despite having multiple opportunities to
amend.
(Footnotes omitted).
The trial court thus granted defendants’ motion for attorneys’ fees as part of
their costs under Rule 41(d) pursuant to N.C.G.S. § 6-21.5. The trial court also
ordered defendants to file an application for attorneys’ fees and costs and submit
invoices for in camera review by the trial court.
Defendants subsequently filed the application and submitted the invoices for
in camera review. Plaintiffs filed a response and objection to the contents of the
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Opinion of the Court
application. The trial court requested additional billing information, to which
plaintiffs also objected. After its review of the filings and submissions, the trial court
awarded $3,277.34 in costs and $599,262.00 in attorneys’ fees. Plaintiffs appealed
both orders but do not challenge the award of costs.
II. Analysis
Although attorneys’ fees generally are not recoverable under the common law,
our legislature has enacted provisions allowing for the recovery of attorneys’ fees,
including N.C.G.S. § 6-21.5. See Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 257
(1991).
Section 6-21.5 provides that:
In any civil action, special proceeding, or estate or trust
proceeding, the court, upon motion of the prevailing party,
may award a reasonable attorney’s fee to the prevailing
party if the court finds that there was a complete absence
of a justiciable issue of either law or fact raised by the
losing party in any pleading. The filing of a general denial
or the granting of any preliminary motion, such as a motion
for judgment on the pleadings pursuant to G.S. 1A-1, Rule
12, a motion to dismiss pursuant to G.S. 1A-1, Rule
12(b)(6), a motion for a directed verdict pursuant to
G.S. 1A-1, Rule 50, or a motion for summary judgment
pursuant to G.S. 1A-1, Rule 56, is not in itself a sufficient
reason for the court to award attorney’s fees, but may be
evidence to support the court’s decision to make such an
award. A party who advances a claim or defense supported
by a good faith argument for an extension, modification, or
reversal of law may not be required under this section to
pay attorney’s fees. The court shall make findings of fact
and conclusions of law to support its award of attorney’s
fees under this section.
N.C.G.S. § 6-21.5 (2021).
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This Court previously construed this statute in Sunamerica Financial Corp.
v. Bonham, explaining that:
A justiciable issue has been defined as an issue that
is real and present as opposed to imagined or fanciful. In
order to find complete absence of a justiciable issue it must
conclusively appear that such issues are absent even giving
the pleadings the indulgent treatment they receive on
motions for summary judgment or to dismiss. However, it
is also possible that a pleading which, when read alone sets
forth a justiciable controversy, may, when read with a
responsive pleading, no longer present a justiciable
controversy.
328 N.C. at 257–58 (cleaned up). In that matter, this Court affirmed on the grounds
that “the trial court’s findings and conclusions suffice to support the court’s order of
an attorney’s fee.” Id. at 261–22. Here, we reach the same result: the unchallenged
findings and conclusions suffice to support the trial court’s order of attorneys’ fees.5
Plaintiffs make several arguments: The trial court erred by allowing attorneys’
fees without finding that plaintiffs voluntarily dismissed their action in bad faith;
plaintiffs advanced a claim supported by a good faith argument for an extension,
modification, or reversal of law; and the trial court abused its discretion by allowing
attorneys’ fees when the trial court previously directed plaintiffs to continue with
discovery.
5Plaintiffs only challenged the finding that “this matter involved a dispute over the
ownership and operation of the limited partnership.” We have disregarded this finding for
purposes of our review.
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These arguments fail or are not preserved. First, plaintiffs rely on a decision
from this Court, Brisson v. Santoriello, 351 N.C. 589, 597 (2000), which stated that
“[t]he only limitations [on Rule 41 voluntary dismissals] are that the dismissal not be
done in bad faith and that it be done prior to a trial court’s ruling dismissing plaintiff’s
claim or otherwise ruling against plaintiff at any time prior to plaintiff resting his or
her case at trial.” Id. Yet, we are not reviewing plaintiffs’ Rule 41 voluntary dismissal.
Rather, we are reviewing an order allowing attorneys’ fees to defendants as the
prevailing party pursuant to N.C.G.S. § 6-21.5. Thus, we are not persuaded by this
argument.
Second, plaintiffs only advanced before the trial court one “good faith argument
for an extension, modification, or reversal of law” in opposition to defendants’ motion
for attorneys’ fees as the prevailing party pursuant to N.C.G.S. § 6-21.5. Plaintiffs
argued before the trial court and now this Court that because the Partnership
Agreement of FASC was incorporated by reference in the amended complaint,
“defendants could easily deduce that there was only one way not to violate Section
14.5 after the actions they had taken and that was for [CCHS] to have successfully
sought to modify or amend the [Partnership] Agreement, [which] in turn could only
be done by the use of Section 19.1 which required a vote of two-thirds in interest of
the limited partners.”
We are bound by the trial court’s unchallenged determination that all claims
brought against defendants were alleged breaches of Section 14.5, Section 10.1, and
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Opinion of the Court
Article XII of the Partnership Agreement, which plaintiffs brought in their individual
capacities. Also unchallenged is the trial court’s conclusion that plaintiffs lacked
standing to bring direct, individual claims for these alleged breaches. We are further
bound by the trial court’s finding that plaintiffs’ “good faith argument” concerns a
non-pleaded breach of the Partnership Agreement. Thus, we disagree with plaintiffs’
assertion that the trial court abused its discretion.6
Third, plaintiffs did not argue before the trial court that its actions concerning
discovery precluded the court from exercising its discretion to award attorneys’ fees.
Hence, we do not address this unpreserved argument that is raised for the first time
on appeal. N.C. R. App. P. 10(a).
Concerning the award of attorneys’ fees in the amount of $599,262.00,
plaintiffs also raise objections. Plaintiffs allege that the trial court improperly relied
on billing records that were not provided to plaintiffs for their review, contrary to
plaintiffs’ due process rights under the Fourteenth Amendment. But plaintiffs did not
object to the trial court’s in camera consideration of these billing invoices in their
response to defendants’ application for attorneys’ fees. “Constitutional issues not
raised and passed upon [by the] trial [court] will not be considered for the first time
on appeal.” State v. Lloyd, 354 N.C. 76, 86–87 (2001) (citing State v. Benson, 323 N.C.
6 The remaining arguments that plaintiffs make or allude to in their briefing before
this Court concerning “good faith arguments” were not advanced before the trial court.
Therefore, these arguments are not preserved, and we decline to address them. N.C. R. App.
P. 10(a).
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318, 322 (1988)). Plaintiffs did subsequently raise an objection to the trial court’s
request for additional billing information. However, plaintiffs’ counsel was copied on
both related e-mails—the message from the trial court requesting additional billing
information and the response from defendants’ counsel providing the additional
documentation. From our review of the record, we are not persuaded that this
objection has merit.
Plaintiffs additionally complain that the trial court erred and abused its
discretion in the order on defendants’ application for attorneys’ fees and costs by not
considering some of plaintiffs’ arguments and by reciting the parties’ contentions
rather than making findings of fact. Nonetheless, after reviewing the trial court’s
order, we conclude that the trial court’s findings and conclusions are sufficient. The
order reflects that the trial court considered plaintiffs’ objections to the fee application
and scrutinized the time and monies expended by defendants.
III. Conclusion
Based on the record before us and the preserved arguments, we conclude that
the trial court did not abuse its discretion by granting defendants’ motion for award
of attorneys’ fees as part of their costs under Rule 41(d) of the North Carolina Rules
of Civil Procedure pursuant to N.C.G.S. § 6-21.5 and awarding $599,262.00 in
attorneys’ fees as costs. Accordingly, we affirm the trial court’s orders.
AFFIRMED.
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