                                  UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                    No. 16-2057


DESA ALLEN BALLARD, as Personal Representative of the Estate of Chris
Combis,

                  Plaintiff - Appellant,

            and

LINDA COMBIS; MARY COMBIS,

                  Intervenors/Plaintiffs,

            v.

DIANE COMBIS, as former Trustee of the Trust of Chris Combis,

                  Defendant - Appellee,

GEORGE COMBIS; CHRIS A. COMBIS; SUPERIOR TILE MARBLE AND
TERRAZZO CORPORATION; SUPERIOR STONE OF THE SOUTHEAST,
INC.,

                  Respondents - Appellees.



                                    No. 16-2136


DESA ALLEN BALLARD, as Personal Representative of the Estate of Chris
Combis,

                  Plaintiff - Appellee,

            and
LINDA COMBIS; MARY COMBIS,

                    Intervenors/Plaintiffs,

             v.

GEORGE COMBIS; CHRIS A. COMBIS; SUPERIOR TILE MARBLE AND
TERRAZZO CORPORATION; SUPERIOR STONE OF THE SOUTHEAST,
INC.; DIANE COMBIS,

                    Respondents - Appellants.



Appeals from the United States District Court for the District of South Carolina, at Rock
Hill. Joseph F. Anderson., Jr., Senior District Judge. (0:14-cv-01839-JFA)


Argued: September 25, 2018                                        Decided: January 8, 2019


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Douglas Neal Truslow, TRUSLOW & TRUSLOW LAW FIRM, Columbia, South
Carolina, for Appellant/Cross-Appellee. David Glennon Redding, Joseph Raymond
Pellington, REDDING TISON & JONES, PLLC, Charlotte, North Carolina, for
Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                              2
PER CURIAM:

    This consolidated appeal involves debts and obligations relating to the estate of Chris

“Pop” Combis, the patriarch of the Combis family, who passed away in 2009. 1 For the

reasons that follow, we affirm in part, vacate in part, and remand.




                                              I.

    In Charlotte, North Carolina, Pop Combis founded a company called Superior Tile,

Marble, and Terrazzo, Inc. (hereinafter “Superior Tile”).           Superior Tile was very

successful. It brought in a great deal of money. Pop regularly shifted large sums of that

money from the company to his family and back to the company again. This was, at least

in part, how Pop supported his two daughters, Linda and Mary, well into their adulthood.

Pop’s son, George, treated the company’s money in much the same way as he became

increasingly involved in running—and eventually took ownership of—Superior Tile.

    Regrettably, neither Pop, George, nor other members of the family kept clear records

of their transactions. As a result, the financial ties between Pop’s estate, Superior Tile, and

Pop’s adult children have devolved into near-inscrutability. The parties, after years of

acrimony and at least a dozen individual lawsuits disputing who owes how much to whom,

now ask the federal courts to sort it all out. 2 The district court has done much of the work


1
  Because so many of the parties to this appeal share the surname “Combis,” we refer to
them by their given names. Additionally, because the parties refer to the late Christopher
Combis as “Pop,” we do the same.
2
  Having considered various motions and voluminous evidence on removal of this case
from state to federal court, the district court determined that it had jurisdiction over the

                                              3
already; the only substantial issues remaining on appeal involve two transactions that

occurred during Pop’s life.

    In 2003, Pop executed his last will and testament. Under the terms of his will, the

property in his estate was to pour over into a revocable trust (the “Trust”) at the time of his

death. The Trust was established under North Carolina law. Its beneficiaries were Pop’s

three children: George, Mary, and Linda. At first, Pop named himself as trustee; later (in

2006), he appointed George’s wife, Diane, to that position.

    In 2005, Pop loaned $230,000 of his own money to Superior Tile. He and Superior

Tile executed a home-made written agreement (the “Note”) setting out the terms of the

loan. Under the Note, Superior Tile had to: (1) make regular interest payments on the

$230,000 principal; (2) pay Linda and Mary a monthly stipend; (3) pay some of Linda’s

and Mary’s expenses, such as their car insurance; and (4) return the full principal to Pop’s

estate 30 days after his death.

    In 2007, Pop sued Superior Tile in North Carolina state court. In relevant part, Pop

alleged that Superior Tile “ha[d] breached” the Note. He did not make factual allegations

specifying how Superior Tile had breached its obligations; he merely pointed out that the

Note required Superior Tile to make interest payments on the principal of the loan, along

with regular payments to Linda and Mary. He sought recovery of $230,000, plus interest.

Later that year, Pop voluntarily dismissed the suit. He never re-filed it.


issues now before us because the parties are diverse, the amount in controversy exceeds
$75,000, and the “probate exception” to diversity jurisdiction does not apply to any of the
relevant issues. Neither party challenges that determination, and as the record stands, we
are satisfied that the district court was correct.

                                              4
    Also in 2007, after Diane had become trustee of the Trust, George instructed Diane to

withdraw $412,000 from the Trust’s assets. Diane did as George said, and the money was

deposited into a joint account that they controlled together.

    Pop died in 2009. At the time, no one in the Combis family took any steps to either

open or probate his estate. Years later, on July 31, 2013, a probate court designated Desa

Ballard, a South Carolina attorney, as the estate’s personal representative. A few months

after that, the relevant parties agreed that Ballard would replace Diane as trustee of the

Trust.

    Ballard initiated multiple actions to recover assets she believed were due to either

Pop’s estate or to the Trust. Of the claims Ballard levied, two sets remain relevant: First,

on behalf of Pop’s estate, Ballard claimed that Superior Tile had breached the Note by

failing to return the $230,000 that Pop had loaned to the company. She did not allege that

Superior Tile had failed to satisfy any of its other obligations under the Note. Second, on

behalf of the Trust, Ballard brought claims against Diane and George relating to the

$412,000 that Diane had transferred from the Trust’s assets to her joint account with

George in 2007. Characterizing the transfer as a loan to George, Ballard alleged that Diane

had breached her fiduciary duty to the Trust by “loaning the assets of the [T]rust without

proper security[,] and in failing to require repayment of the loan to the [T]rust on

commercially-reasonable terms.” J.A. 64. Additionally, Ballard alleged that as a debtor

of the trust, George was liable to the Trust for the full principal of the $412,000 “loan,”

plus interest at the North Carolina statutory rate of 8%.

    Following a bench trial, the district court dismissed Ballard’s breach-of-contract claim


                                             5
against Superior Tile as precluded by North Carolina Rule of Civil Procedure 41(a). The

district court also found that Diane’s transfer of $412,000 from the Trust to her joint

account with George was not a loan, but a misappropriation of Trust assets. Accordingly,

the district court held that Diane had breached her fiduciary duty to the Trust and that she

and George were jointly and severally liable to the Trust in the amount of $412,000, plus

pre-judgment interest. Both sides separately appealed, and the appeals were consolidated

herein. 3




                                              II.

    Since this is an appeal from a bench trial, we review the district court’s factual findings

for clear error and its legal conclusions de novo. Sky Angel U.S., LLC v. Discovery

Commc’ns, LLC, 885 F.3d 271, 276 (4th Cir. 2018). Beginning with Ballard’s appeal, we

hold that the district court made a legal error when it concluded that Ballard’s claim against

Superior Tile was barred by North Carolina Rule of Civil Procedure 41(a). Proceeding to

Diane and George’s appeal, we hold that the district court erred in making George jointly

and severally liable with Diane for damages resulting from Diane’s transfer of funds from

the Trust. Otherwise, we affirm the district court’s factual findings and legal conclusions.




3
  Superior Tile, Diane, and George are jointly represented—an arrangement that appears,
at best, ethically fraught. In their briefing, they sometimes refer to themselves as a single
unit. At other times, they make arguments that would seem to benefit George at the
expense of Diane. For the sake of clarity, we generally refer to the parties based on the
primary interest at stake.

                                              6
                                              A.

    Ballard’s appeal raises one issue: whether North Carolina Rule of Civil Procedure

41(a) prevents Pop’s estate from recovering $230,000 from Superior Tile pursuant to the

Note. We hold that it does not.

    Rule 41(a) has two relevant components. First, when a plaintiff voluntarily dismisses

an action, the dismissal is without prejudice. If the plaintiff re-files an action based on the

same claim and then, once again, voluntarily dismisses the action, the second dismissal is

treated as an “adjudication upon the merits,” and the plaintiff is precluded from filing

another suit based on the same claim. Second, when a plaintiff voluntarily dismisses an

action, the plaintiff may file “a new action based on the same claim” if either (a) the statute

of limitations governing the claim has not run, or (b) the statute of limitations has run, but

it has been less than a year since the voluntary dismissal of the first action.

    Rule 41(a) has no bearing on Ballard’s attempt to recover under the Note. Rule 41(a)

applies only to successive lawsuits based on the “same claim.” Therefore, for Rule 41(a)

to apply in this case, Ballard would need to have made the same claim against Superior

Tile that Pop made in 2007. But Ballard did not make the same claim that Pop made in

2007. Although we do not know the exact factual predicate of Pop’s claim (since he did

not make factual allegations in his complaint), we may reasonably infer that it had

something to do with events that occurred during Pop’s life. In contrast, Ballard’s claim is

based on Superior Tile’s failure to repay the principal of the loan to Pop’s estate when it




                                              7
came due after Pop’s death. 4 Therefore, Rule 41(a) does not bar Ballard’s attempt to

enforce the Note against Superior Tile, and the portion of the district court’s order holding

as much is vacated. 5



                                             B.

    We now turn to Diane and George’s appeal. Diane argues that (1) the district court

erred in finding that her transfer of $412,000 from the Trust to her joint account with

George was a breach of fiduciary duty; and (2) even if she breached her fiduciary duty, the



4
  North Carolina’s intermediate appellate court has interpreted Rule 41(a) in substantially
the same way. That court has held that for purposes of Rule 41(a), when a contract calls
for multiple payments, a claim based on the failure to make one payment is not the “same”
as a claim based on the failure to make another, later payment. Centura Bank v. Winters,
583 S.E.2d 723, 725 (N.C. Ct. App. 2003). We believe the Note at issue here is best viewed
as a contract calling for multiple payments, with some payments being due during Pop’s
life and a single large one being due thirty days after Pop’s death. The latter payment forms
the basis of the estate’s claim today. It follows that the factual predicate of the estate’s
claim is distinct from the factual predicate of any claim Pop could have brought while he
was alive. Therefore, the estate is not seeking to bring the “same claim” as Pop for
purposes of Rule 41(a). See Brannock v. Brannock, 523 S.E.2d 110, 113 (N.C. Ct. App.
1999) (“Our courts have required the strictest factual identity between the original claim
and the new action” for the claims to be considered the same under Rule 41(a) (internal
citations and quotation marks omitted)).
5
  In the alternative, Superior Tile asserts that even if Pop’s estate accrued a valid claim
under the Note thirty days after Pop’s death, Ballard’s suit to enforce the Note would be
barred by North Carolina’s three-year statute of limitations. To the contrary, Ballard argues
that South Carolina law controls the applicable statute of limitations, and that under South
Carolina law, the statute of limitations governing the estate’s claim against Superior Tile
did not begin to run until Ballard was appointed the estate’s personal representative; if that
were true, then Ballard’s claim would not be time-barred. The district court did not address
the choice-of-law question below, and we decline to resolve it now. On remand, it will fall
to the district court to apply South Carolina’s choice-of-law rules and determine which
state’s law—North Carolina’s or South Carolina’s—controls the statute-of-limitations
question.

                                              8
district court erred in how it calculated pre-judgment interest on the Trust’s damages. For

his part, George argues that (1) the district court erred in holding him jointly and severally

liable with Diane for Diane’s breach of fiduciary duty; and (2) the district court should

have offset the Trust’s damages by one-third, to reflect that George is himself a Trust

beneficiary. Addressing Diane and George’s arguments in turn, we affirm the district court

in most respects, but we conclude that the court erred by holding George jointly and

severally liable with Diane for Diane’s breach of fiduciary duty.



                                              1.

    Diane argues that her transfer of $412,000 from the Trust to her joint account with

George was nothing more than a loan to one of the Trust’s beneficiaries. According to

Diane, since North Carolina law generally authorizes such loans, the transfer cannot have

been a breach of her fiduciary duty.

    Diane’s argument that the transfer was a loan and therefore not a breach of fiduciary

duty relies exclusively on North Carolina General Statute § 36C-8-816(18). In particular,

Diane points out that § 36C-8-816(18) permits a trustee to “[m]ake loans out of trust

property, including loans to a beneficiary on terms and conditions the trustee considers to

be fair and reasonable under the circumstances . . . .” The comments to the statute clarify

that “[t]he determination of what is fair and reasonable must be made in light of the

fiduciary duties of the trustee and purposes of the trust.” Id. (comment to paragraphs 18

and 19). In addition, the comments recognize that “[f]requently, a trustee will make loans

to a beneficiary which might be considered less than prudent in an ordinary commercial


                                              9
sense although of great benefit to the beneficiary . . . .” Id. Leaning on this permissive

language, Diane contends that because the transfer at issue here could be construed as the

type of “less than prudent” loan authorized by the statute, the district court erred in finding

that it was not.

    We disagree. Nothing in the plain language or comments of § 36C-8-816(18)—the

only authority Diane cites—requires a district court to find that a transfer of property from

trust to beneficiary is a loan simply because the trustee says so. 6 On the contrary, the

statute provides that loaning trust property to a beneficiary under commercially

unreasonable conditions is not necessarily a breach of the trustee’s fiduciary duty. The

existence of a statute permitting a trustee to extend commercially unreasonable loans under

some circumstances does not make it clearly erroneous to find that this transfer was not a

loan.

    Diane offers no other basis for reversal. Since her statutory argument is unavailing,

we affirm the district court’s conclusion that Diane breached her fiduciary duty to the Trust.



                                              2.

    We now turn to the district court’s calculation of pre-judgment interest. As part of its

award of actual damages for Diane’s breach of fiduciary duty, the district court multiplied

the $412,000 transferred from the Trust by North Carolina’s statutory interest rate of 8%


6
 Nor does § 36C-8-816(8) prevent a court from concluding that a transfer of property from
a trust to a beneficiary is a loan, but one that breaches the trustee’s fiduciary duty. Since
Diane fails to show that the district court clearly erred when it found that the transfer was
not a loan, we need not address that point.

                                              10
per year, beginning on the date that Diane made the transfer. This resulted in a judgment

of $711,619.94 for the Trust, with $299,619.94 of the judgment consisting of pre-judgment

interest.

    According to Diane, North Carolina General Statute § 24-5 required the district court

to calculate pre-judgment interest beginning with the date Ballard filed the present action—

not the date on which Diane made the transfer. Section 24-5 has two relevant provisions.

Section 24-5(a) states that “[i]n an action for breach of contract . . . the amount awarded on

the contract bears interest from the date of breach.” Section 24-5(b) states that “[i]n an

action other than contract, any portion of a money judgment designated by the fact finder

as compensatory damages bears interest from the date the action is commenced . . . .”

Diane contends that because the judgment at issue was for a breach of fiduciary duty and

not a breach of contract, the district court should have followed § 24-5(b) and not § 24(a)

when calculating interest. We disagree.

    The district court correctly reasoned that in North Carolina, when a party consents to

act as the trustee of an express trust, the fiduciary duties arising from his or her trusteeship

are “essentially contractual in nature,” such that “any failure to perform in compliance with

the duties as a fiduciary is tantamount to a breach of contract.” Tyson v. N.C. Nat’l Bank,

286 S.E.2d 561, 565 (N.C. 1982); accord Bruce v. N.C. Nat’l Bank, 303 S.E.2d 561, 563

(N.C. Ct. App. 1983). Although Tyson addressed a statute-of-limitations question, we

conclude that if an express trustee’s fiduciary duties are “essentially contractual in nature”

for statute-of-limitations purposes, they are also “essentially contractual in nature” for the




                                              11
purpose of calculating pre-judgment interest. 7 Thus, the district court did not err in using

the date on which Diane breached her fiduciary duty as the date on which pre-judgment

interest began to accrue.



                                              3.

    We now consider whether North Carolina law permits George to be held jointly and

severally liable with Diane for Diane’s breach of fiduciary duty. We hold that it does not.

    Generally speaking, North Carolina law does not permit a plaintiff to maintain an

action for breach of fiduciary duty against a defendant who did not owe the plaintiff a

fiduciary duty in the first place. 8 Dalton v. Camp, 548 S.E.2d 704, 707 (N.C. 2001) (“For




7
  Diane offers no counterpoint. She does, however, assert that if the district court had really
intended to compensate the Trust for its inability to collect interest on the $412,000 she
transferred from it, then the court would have made a factual finding as to the “prevailing
market interest rate” during the period following the transfer, and would have used that
finding, rather than the statutory rate of 8%, to calculate the appropriate award. Notably,
Diane does not argue that this is what the district court should have done—the only issue
she raises on appeal is whether, as a matter of law, the district court used the wrong accrual
date when applying the statutory interest rate of 8%. Since that is the only question
properly before us, it is the only question we answer here.
8
  Some states recognize a cause of action against a non-fiduciary who knowingly
participates in a breach of fiduciary duty. See, e.g., Glidden Co. v. Jandernoa, 5 F. Supp.
2d 541, 555 (W.D. Mich. 1998) (applying Delaware law). Whether a party may be liable
under North Carolina law for “aiding and abetting” a breach of fiduciary duty appears to
be an open question. See Ehrenhaus v. Baker, 717 S.E.2d 9, 29 (N.C. Ct. App. 2011)
(collecting cases). We need not answer the question here, because (1) Ballard did not state
a claim against George for aiding and abetting a breach of fiduciary duty, and (2) Ballard
has not argued that we should affirm based on a theory of aiding and abetting Diane’s
breach of fiduciary duty. Thus, whichever way the North Carolina Supreme Court
ultimately rules on the question, aiding and abetting a breach of fiduciary duty is not, in
these circumstances, an appropriate theory for extending liability to George.

                                              12
a breach of fiduciary duty to exist, there must first be a fiduciary relationship between the

parties.”). In this case, the district court did not conclude that George owed or breached a

fiduciary duty to the Trust. Therefore, it erred in holding George jointly and severally

liable with Diane for Diane’s breach of fiduciary duty.

    Ballard offers two arguments to the contrary, but both are unpersuasive. First, Ballard

argues that during the events in question, George was acting as Diane’s agent, and that

North Carolina permits the agent of a fiduciary to be held jointly and severally liable for

the fiduciary’s breach of his or her duty when “the agent has . . . by his conduct added his

own liability to that of his principal . . . .” Rounsaville v. N.C. Home Fire Ins. Co., 50 S.E.

619, 621 (N.C. 1905). The only case Ballard cites for support, Rounsaville, is inapposite.

Rounsaville concerns the causes of action available to someone who contracts with the

agent of an undisclosed principal. Id. The case before us does not involve any such

contract. Moreover, Ballard has maintained throughout this litigation that Diane removed

the disputed sum from the Trust at George’s direction. 9 George cannot reasonably be

viewed as both the mastermind of Diane’s wrongdoing and her agent. Accordingly,

Ballard’s agency theory is without merit.

    Second, Ballard asks us to affirm the district court because that court “has inherent

authority to reach a just result.” Appellants’ Second Br. at 12. We are unpersuaded. As

an initial matter, the district court never referred to its own “inherent authority” in




9
 For example, Ballard asserts that “George was clearly the architect of [Diane’s] wrongful
conduct.” Appellant’s Second Br. at 10.

                                              13
concluding that George and Diane were jointly and severally liable for Diane’s breach of

fiduciary duty. More significantly, although it is well-established that courts have certain

inherent powers, it is also well-established that “[b]ecause of their very potency, inherent

powers must be exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501

U.S. 32, 44 (1991). To that end, the inherent powers of the courts have generally been

exercised to safeguard the fairness and integrity of the judicial process—e.g., to prevent

parties from abusing the rules of evidence, discovery, and procedure, or to ensure that one

party is not placed at a severe and unjust disadvantage as a litigant. See id. at 43–45.

Ballard’s argument attempts to stretch the court’s inherent powers too far, and we find it

unpersuasive. Accordingly, we vacate the portion of the district court’s order holding

George jointly and severally liable with Diane for Diane’s breach of fiduciary duty.



                                             4.

    Finally, George asserts that because he is one of the Trust’s three beneficiaries, one-

third of the $412,000 Diane took from the Trust was rightfully his. Therefore, according to

George, any damages resulting from Diane’s misappropriation of those funds should be

reduced proportionally. For support, George argues that under North Carolina General

Statute § 36C-8-816(18), when a trustee loans trust assets to a beneficiary, the trust may

“acquire a lien on future distributions for repayment” of the loan. His argument fails at the

outset. As discussed above, the district court found that the transfer of funds at issue here

was not a loan. That finding was not clearly erroneous. Accordingly, § 36C-8-816(18) is

inapplicable. Since George fails to identify a reversible error of law, we conduct no further


                                             14
analysis of the merits of this argument and leave the district court’s treatment of the issue

intact. 10




                                             III.

     For the foregoing reasons, we vacate the portions of the district court’s order

dismissing Ballard’s action against Superior Tile and holding George jointly and severally

liable with Diane for Diane’s breach of fiduciary duty. On those points, we remand for

further proceedings consistent with this opinion. In all other respects, we affirm the district

court.

                           AFFIRMED IN PART, VACATED IN PART, AND REMANDED




10
  We note one last, vestigial issue. The district court found that George and Pop were co-
owners, with a right of survivorship, of a bank account containing $387,590.14. The
district court also found that in 2006, Pop withdrew all the funds in the joint account
without George’s permission. On the basis of those findings, George asks us to remand
and instruct the district court to “grant [him] a credit” equal to half the funds that were in
the joint account. Appellees’ First Br. at 18. George does not identify the proper source
of this “credit.” Nor does he identify a theory of law or equity under which the district
court erred. Therefore, we decline to grant George his requested relief.

                                              15
