                            NO. COA13-594

                   NORTH CAROLINA COURT OF APPEALS

                       Filed: 19 August 2014


WAKE COUNTY,
     Plaintiff,

     v.                             Wake County
                                    Master File No. 06 CVS 16256
HOTELS.COM, L.P., et al.,
     Defendants.


BUNCOMBE COUNTY,
     Plaintiff,

    v.                              Buncombe County
                                    No. 07 CVS 585
HOTELS.COM, L.P., et al.,
     Defendants.


DARE COUNTY,
     Plaintiff,

    v.                              Dare County
                                    No. 07 CVS 56
HOTELS.COM, L.P., et al.,
     Defendants.




MECKLENBURG COUNTY,
     Plaintiff,

    v.                              Mecklenburg County
                                    No. 08 CVS 741
HOTELS.COM, L.P., et al.,
     Defendants.
                                     -2-
    Appeal by plaintiffs from Order and Opinion filed on 19

December 2012 by      Judge Calvin E. Murphy           in Special    Superior

Court for Complex Business Cases.          Heard in the Court of Appeals

19 November 2013.


    Ward and Smith, P.A., by Gary J. Rickner and Joseph A.
    Schouten; and Law Office of Michael Y. Saunders, by Michael
    Y. Saunders, for plaintiff-appellants.

    Williams Mullen, by Charles B. Neely, Jr., Christopher G.
    Browning, Jr., Nancy S. Rendleman, Robert W. Shaw; Kelly
    Hart & Hallman, LLP, by Brian S. Stagner, pro hac vice, and
    Marcus G. Mungioli, pro hac vice; Skadden, Arps, Slate,
    Meagher & Flom LLP, by Darrel J. Hieber, pro hac vice, and
    Randolph K. Herndon, pro hac vice, for defendant-appellees.


    BRYANT, Judge.


    Where     the   trial   court   did    not   err    in   concluding    that

defendants    are   not   subject   to    plaintiffs’    occupancy   tax    and

where the trial court did not err in concluding that defendants

were not required to collect and remit an occupancy tax, we

affirm the trial court’s grant of summary judgment in favor of

defendants.    Where the trial court dismissed plaintiffs’ claim

seeking recovery for collected but not remitted taxes on the

basis of a contractual obligation because of plaintiffs’ failure

to provide sufficient notice of the claim in their pleadings, we

affirm the dismissal.        Lastly, where the trial court granted
                                         -3-
summary judgment in favor of defendants on plaintiffs’ claims

for     an    accounting,      conversion,       and    seeking       to    impose     a

constructive trust, we affirm.

      Defendants are approximately eleven online travel companies

(OTC) that operate websites which allow consumers to select and

pay   for     hotel   rooms    directly        online   using     a   credit       card.

Consumers      can    make    reservations       with   airlines,          car   rental

companies, and cruise lines in addition to hotels.                          Defendants

negotiate and contract with hotels to obtain rooms at discount

rates, these rooms are then sold to customers at a rate the

hotel is obligated to honor.               Consumers who take advantage of

this offer never pay the hotel directly, only the OTC.

      Plaintiffs      are     four    counties—Wake,      Dare,       Buncombe,      and

Mecklenburg—who       are    required     by    North   Carolina       statutes      and

local ordinances to collect and remit an occupancy tax based on

a percentage of the receipts derived from the rental of hotel

rooms    in   their    respective       counties.       Plaintiffs         claim   that

defendants charge consumers a rate higher than the discount rate

negotiated with the hotel yet only remit to plaintiffs a tax

amount based on the reduced rate. Plaintiffs contend defendants

are liable for substantial unremitted tax amounts.

                                     Procedural History
                                          -4-
     We     discuss      the    procedural        history    for     the    lawsuits

initially brought by each county.

                                      Wake County

     In Wake County Superior Court on 2 November 2006, Wake

County filed a verified complaint and action for declaratory

judgment against defendants Hotels.com, LP; Hotwire, Inc.; Trip

Network,        Inc.   (d/b/a     Cheap      Tickets.com);         Expedia,    Inc.;

Internetwork           Publishing         Corp.          (D/B/A      Lodging.com);

Lowestfare.com, Inc.; Maupin-Tour Holding, LLC1; Travelport, Inc.

(f/k/a     Cendant     Travel    Distribution        Services      Group,     Inc.)2;

Orbitz,         LLC;     Priceline.com,           Inc.;      Site59.com,        LLC;

Travelocity.com,        LP;    Travelweb     LLC;   and     Travelnow.com,      Inc.3

Wake County asserted that the action was to collect occupancy

taxes     and    penalties      due   Wake      County     from    gross    receipts

defendants derived from the rental of rooms, lodging, and other



1
  On 6 November 2007, Wake County filed notice of voluntary
dismissal without prejudice of its claims against defendant
Maupin-Tour Holding, LLC.
2
  On 25 January 2008, Wake County filed notice of voluntary
dismissal without prejudice of its claims against defendant
Travelport, Inc. (f/k/a Cendant Travel Distribution Services
Group, Inc.).
3
  On 11 December 2011, Wake County filed notice of voluntary
dismissal without prejudice of its claims against Travelnow.com,
Inc.
                                         -5-
accommodations furnished by hotels, motels, and similar places

located    in   Wake    County.       By   county     ordinance,          Wake   County

imposed a six percent “room occupancy tax” on the gross proceeds

derived from the rental of hotel rooms and other accommodations

within the county.4         Wake County sought a declaratory judgment

and   injunction       declaring   that     defendants’      actions        subjected

defendants to payment of the occupancy tax.                  Wake asserted the

following:      violation    of    the     room    occupancy        tax    ordinance;

conversion; imposition of a constructive trust; a demand for

accounting; unfair and deceptive trade practices; agency; and

claim     for    statutory     penalties          pursuant     to        Wake    County

ordinances.        Wake      County      alleged     damages        in     excess   of

$1,000,000.00 annually.

                                      Dare County

      In Dare County Superior Court, on 26 January 2007, Dare

County filed a verified complaint and action for Declaratory

Judgment against the identical entities named in the Wake County



4
  “The County of Wake hereby imposes and levies a tax of six
percent (6%) of the gross receipts derived by any person, firm,
corporation, or association from the rental of any room, lodging
or accommodation furnished by a hotel, motel, inn, tourist camp,
or similar place within the County that is subject to the State
sales tax imposed under Section 105-164.4(a)(3) of the North
Carolina General Statutes.”    WAKE COUNTY, N.C., R-91-107 ' 1
(1991).
                                   -6-
complaint.5,6,7   Dare County, like Wake County, asserted that the

action was to collect occupancy taxes and penalties due Dare

County from gross receipts defendants derived from the rental of

rooms, lodging, and other accommodations furnished by hotels,

motels, and similar places located in Dare County.             Dare County

imposed   a   five   percent   “room   occupancy   tax”   on    the   gross

proceeds from the rental of hotel rooms and other accommodations

within the county.8       Like Wake County, Dare County sought a



5
  On 20 August 2007, Dare County filed notice of voluntary
dismissal without prejudice of its claims against Maupin-Tour
Holding, LLC.
6
  On 7 December 2007, Dare County filed notice of dismissal
without prejudice of its claims against Travelnow.com, Inc.
7
  On 1 February 2008, Dare County filed notice of voluntary
dismissal without prejudice of its claims against Travelport,
Inc. (f/k/a Cendant travel Distribution Services Group, Inc.).
8
  “There is hereby levied in the County of Dare a room occupancy
tax of three per cent [sic] (3%) on the gross receipts derived
from the rental of any room, lodging, or similar accommodation
subject to sales tax under G.S. 105-164.4(a)(3).” DARE COUNTY,
N.C., Resolution 91-9-26 ' 1 (1992).

     “There is hereby levied within Dare County a room occupancy
and tourism development tax of one per cent [sic] (1%) of the
gross receipts derived from the rental of any room, lodging, or
similar accommodation subject to sales tax under G.S. 105-
164.4(a)(3) . . . .” DARE COUNTY, N.C., Resolution 91-9-27 ' 1
(1992).

     “Whereas, the General Assembly of North Carolina . . . has
authorized the Dare County Board of Commissioners to levy a
supplemental room occupancy tax of 1% of the gross receipts
                                      -7-
declaratory judgment and injunction declaring that defendants’

actions subjected defendants to payment of the occupancy tax.

Dare asserted the following: violation of the room occupancy tax

ordinance;      conversion;   imposition        of   a   constructive       trust;    a

demand    for   accounting;     unfair    and    deceptive        trade   practices;

agency; and claim for statutory penalties pursuant to enabling

legislation for the Dare County ordinance enacted by the North

Carolina    General    Assembly.         Dare    County    alleged        damages    in

excess of $1,000,000.00 annually.

                                  Buncombe County

     In    Buncombe    County     Superior      Court    on   1    February    2007,

Buncombe    County    filed   a   declaratory        judgment      action    against

Hotels.com9; Hotels.com, LP10; Hotels.com GP, LLC; Hotwire, Inc.;



derived from the rental of any room, lodging, or similar
accommodations subject to sales tax under G.S. 105-164.4(a)(3) .
. . located in Dare County . . . the Dare County Board of
Commissioners desires to levy the said 1% supplemental occupancy
tax . . . .” DARE COUNTY, N.C., Resolution implementing
supplemental occupancy tax (Dec. 3, 2001).
9
  On 4 April 2007 Buncombe County filed notice of dismissal
without prejudice of its claims against Hotels.com; Orbitz.Inc.;
Priceline.com, LLC; Site59.com, LLC; Travelocity.com, Inc.;
Travelnow.com, Inc.; Cheap Tickets. Inc.; Sabre, Inc.; and
Travelweb, Inc.
10
   On 10 December of 2007, Buncombe County filed notice of
dismissal without prejudice its claims against Hotels.com GP,
LLC.
                                        -8-
Trip Network, Inc., d/b/a Cheaptickets.com; Travelport, Inc.,

(f/k/a    Cendant    Travel     Distribution       Services    Group,     Inc.)11;

Expedia, Inc.; Internetwork Publishing Corp., d/b/a Lodging.com;

Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com,

Inc.;    Priceline.com      LLC;   Sites59.com,        LLC;   Travelweb,     Inc.;

Travelnow.com,      Inc.;     Cheap     Tickets,    Inc.;     and   Sabre,       Inc.

Buncombe County sought “a declaratory judgment concerning its

power,    privilege,    and    right     to    audit   and    collect     from    []

defendants the North Carolina Occupancy Tax, N.C.G.S. 153A-155 .

. . .”     Buncombe County alleged that its ordinances imposed a

room occupancy and tourism development tax on the gross receipts

derived    from   the   rental     of    any   room,    lodging,     or   similar

accommodation furnished by any hotel, motel, inn, tourist camp,

or other similar place within the county.12                   On the date the



11
  On 12 February 2008 Buncombe County filed notice of dismissal
without prejudice of its claims against Travelport, Inc. (f/k/a
Cendent Travel Distribution Services Group, Inc.).
12
   In its declaratory judgment action, Buncombe County asserts
that on 23 August 1983 by Resolution #17680, the Buncombe County
Board of Commissioners “enacted a two percent (2%) room
occupancy and tourism development tax on the gross receipts
derived from the rental of any room, lodging, or similar
accommodation furnished by any hotel, motel, inn, tourist camp,
or other similar place within the County”; on 26 August 1986,
“the Commissioners by Resolution #18510 enacted and adopted an
additional one percent (1%) occupancy tax”; and on 19 June 2001,
the “Commissioners enacted an additional one percent (1%) room
occupancy tax . . . .”
                                         -9-
declaratory judgment action was filed, the room occupancy tax

was four percent.

                                  Mecklenburg County

      In Mecklenburg County Superior Court on 14 January 2008,

Mecklenburg County filed a verified complaint and action for

declaratory judgment against the same entities named in the Wake

County complaint with the exception of Maupin-Taylor Holding,

LLC, and Travelnow.com, LLC.13            Mecklenburg County asserted that

the action was to declare the rights of the parties concerning

taxes    and    penalties   due   to     Mecklenburg     County    from   receipts

realized by defendants derived from the rental of rooms, lodging

and     other   accommodations         furnished    by   hotels,    motels,    and

similar    places    located      in    Mecklenburg      County.     Mecklenburg

County alleged that at the time the complaint was filed, it

imposed an eight percent “room occupancy tax” and defendants

failure to remit the tax owed deprived Mecklenburg County of

more than $1,000,000.00 annually.14                In addition to its request




13
   On 4 February 2008, Mecklenburg County filed notice of
voluntary dismissal without prejudice of its claim against
Travelport Americas, LLC (f/k/a Cendant Travel Distribution
Group, Inc.).
14
  “Mecklenburg County hereby levies a room occupancy tax of six
percent (6%) of the receipts, net of any taxes or discounts,
derived from the rental of any room, lodging, or accommodation
                                     -10-
for   an    injunction,   Mecklenburg      County   asserted   the    following

claims:     violation     of   occupancy    tax     ordinances;     conversion;

imposition of constructive trust; demand for accounting; unfair

and deceptive trade practices; agency; and a claim for statutory

penalties pursuant to both the Mecklenburg County tax ordinance

and North Carolina General Statutes.

      All    defendants    filed   motions     to    have   their    respective

actions designated as complex business cases.               Thereafter, Chief

Justice Sarah Parker issued orders designating each action as a

complex business case.




furnished by a hotel, motel, inn, tourist camp, or similar place
within Mecklenburg County that is subject to sale tax imposed by
the State of North Carolina under Section 105-164.4(a)(3) of the
North Carolina General Statutes.” MECKLENBURG COUNTY, N.C., Amended
and Restated Mecklenburg County Ordinance to impose and levy a
room occupancy tax and a prepared food and beverage tax (Sept.
1, 1990).

     “Mecklenburg County hereby levies a room occupancy tax of
two percent (2%) of receipts, net of any taxes or discounts,
derived from the rental of any room, lodging, or accommodation
furnished by a hotel, motel, inn, tourist camp, or similar place
within Mecklenburg County that is subject to sales tax imposed
by the State of North Carolina under Section 105-164.4(a)(3) of
the North Carolina General Statutes. This room occupancy tax is
. . . in addition to the six percent (6%) Room Occupancy Tax
previously   levied    by    the  Mecklenburg   County  Board   of
Commissioners which is in effect and remains in full force and
effect.” MECKLENBURG COUNTY, N.C., Mecklenburg ordinance to impose
and levy a two percent room occupancy tax (Hall of Fame Complex
Tax) (March 21, 2006).
                                        -11-
       On 4 April 2007, Special Superior Court Judge Albert Diaz

of the North Carolina Business Court was appointed to preside

over     the   designated      complex       business      cases      and       granted

defendants’ motions to consolidate the actions filed in Buncombe

County,    Dare    County,    and     Wake   County      for    pretrial    matters.

Thereafter, Mecklenburg County’s complaint was consolidated and

joined with the other actions.

       On 1 November 2010, all parties filed motions for summary

judgment under seal; plaintiffs filed a consolidated motion as

did defendants.

       On 4 February 2011, a summary judgment hearing was held

before the Honorable Calvin E. Murphy, Special Superior Court

Judge presiding in the North Carolina Business Court.                            After

considering        the   parties’       motions     and         briefs,     including

supporting authority and arguments of counsel, the trial court

granted    defendants’       motion    for     summary    judgment        and   denied

plaintiffs’ motion for summary judgment. Plaintiffs appeal.

                     _____________________________________

       On appeal, plaintiffs raise the following questions: (I)

whether the trial court erred in concluding that defendants have

no     liability     under    the     ordinances;        (II)     concluding      that

defendants are not contractually obligated to collect and remit
                                         -12-
the occupancy tax;       (III) concluding that there was no legal

support for plaintiffs’ collected but not remitted claim; and

(IV) dismissing plaintiffs’ claims for accounting, conversion,

and constructive trust.

                                Standard of Review

    “We review a trial court's order granting summary judgment

de novo, viewing the evidence in the light most favorable to the

nonmoving   party.       We   are   to    determine         whether   there   is   any

genuine issue of material fact and whether the moving party is

entitled to a judgment as a matter of law.”                       Adkins v. Stanly

Cnty. Bd. of Educ., 203 N.C. App. 642, 644—45, 692 S.E.2d 470,

472 (2010) (citation and quotations omitted).

                                                I

    Plaintiffs       first    argue      that       the   trial   court   erred     in

determining defendants have no liability under the respective

ordinances of Wake, Dare, Buncombe, and Mecklenburg Counties for

failure to collect and remit an occupancy tax on the sale price

defendants impose on consumers.            We disagree.

    The     respective    ordinances        of      Wake,    Dare,    Buncombe,    and

Mecklenburg Counties impose a tax on the gross receipts derived

from the rental of any room, lodging or accommodation furnished

by a hotel, motel, inn, tourist camp, or “similar place” that is
                                     -13-
subject to the State sales tax imposed under General Statutes,

section 105-164.4(a)(3).

    In its 19 December 2012 order, the trial court reasoned

that “[t]o determine whether the Defendants are obligated to pay

the Occupancy Tax under the counties’ ordinances or resolutions,

the Court must decide ‘what’ and ‘who’ is taxed.”                  The court

reasoned that as to the “who” is taxed, Mecklenburg and Wake

counties    impose     the   responsibility    of   collection     upon   the

“operator   of   a     taxable    establishment.”     Dare   and    Buncombe

counties impose the responsibility of tax collection upon the

“operator of a business subject to a room occupancy tax.”                 The

court concluded that defendants “can not [sic] be classified as

operators of ‘taxable establishments’ or ‘businesses subject to

a room occupancy tax’ under any of Plaintiff’s Occupancy Tax

ordinances or resolutions, and are thus, not subject to the

counties’ Occupancy Taxes.”

    Plaintiffs contend the trial court violated the principle

of statutory construction that all parts of a statute must be

given   effect   and    thereby    rendered   critical   sections    of   the

ordinances meaningless.          Specifically, plaintiffs contend that

as to “who” is taxed, the ordinances and enabling legislation

make clear that the tax is levied against the occupant of the
                                -14-
room.     As to “what” is taxed, the ordinances establish that the

levy is applied to the gross receipts derived from the rental of

the accommodation.

                 When construing legislative provisions,
            this Court looks first to the plain meaning
            of the words of the statute itself:

                 When the language of a statute is clear
                 and without ambiguity, it is the duty
                 of this Court to give effect to the
                 plain meaning of the statute, and
                 judicial construction of legislative
                 intent is not required. However, when
                 the language of a statute is ambiguous,
                 this Court will determine the purpose
                 of the statute and the intent of the
                 legislature in its enactment.

State v. Ward, 364 N.C. 157, 160, 694 S.E.2d 729, 731 (2010)

(quoting Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628

S.E.2d 1, 3 (2006)).

    “A county may impose taxes only as specifically authorized

by act of the General Assembly.”       N.C. Gen. Stat. ' 153A-146

(2005).     Our General Assembly has authorized Buncombe, Dare,

Mecklenburg, and Wake counties to impose room occupancy taxes

pursuant to appropriate county ordinances and resolutions.     See

1991 N.C. Sess. Laws ch. 594 (Wake); 1985 N.C. Sess. Laws ch.

449 (Dare); and 1983 N.C. Sess. Laws. ch. 908, parts IV and VI

(Mecklenburg and Buncombe).     The General Assembly limited the

applicability of the occupancy tax to gross receipts derived
                                       -15-
from rental transactions also subject to our State sales tax.

See 2001 N.C. Sess. Laws ch. ' 7.1 (“The Dare County Board of

Commissioners may levy a room occupancy tax . . . [on] the gross

receipts     derived   from    the    rental     of      the   following   in    Dare

County: (1) Any room, lodging, or similar accommodation subject

to   sales      tax    under    G.S.     105-164.4(a)(3)[.]”             (revisions

omitted)); 2001 N.C. Sess. Laws ch. 162, ' 1 (“The Board of

Commissioners of Buncombe County may levy a room occupancy and

tourism development tax . . . [on] the gross receipts derived

from the rental of accommodations within the county that are

subject    to    sales   tax     imposed       by     the      State    under    G.S.

105-164.4(a)(3).” (emphasis and revisions omitted)); 1989 N.C.

Sess. Laws ch. 821, ' 1 (“Mecklenburg County may, by resolution

of its Board of Commissioners, levy a room occupancy tax . . .

[on] the gross receipts derived from the rental of any room,

lodging,   or   accommodation        furnished      by    a    hotel,   motel,   inn,

tourist camp, or similar place within the county that is subject

to sales tax imposed by the State under G.S. 105-164.4(a)(3).”);

and 1991 N.C. Sess. Laws ch. 594, ' 4 (“The Wake County Board of

Commissioners may, by resolution, levy a room occupancy tax . .

. [on] the gross receipts derived from the rental of any room,

lodging,   or   accommodation        furnished      by    a    hotel,   motel,   inn,
                                    -16-
tourist camp, or similar place within the county that is subject

to the State sales tax imposed under G.S. 105-164.4(a)(3).”).

To determine whether the gross receipts derived from the rentals

in which defendants engage are subject to the occupancy tax, we

must consider whether the gross receipts are subject to the

State sales tax in accordance with our General Statutes, section

105-164.4(a)(3).

    Section 105-164.4 (“Tax imposed on retailers”) of the North

Carolina     General    Statutes,   in     pertinent   part,      states    the

following:

           (a) . . . A privilege tax is imposed on a
           retailer . . . [on] the retailer's net
           taxable   sales or   gross  receipts,  as
           appropriate.

           . . .

                 (3)   Operators   of   hotels,   motels,
                 tourist   homes,   tourist  camps,   and
                 similar type businesses . . . are
                 considered    retailers    under    this
                 Article. A tax at the general rate of
                 tax is levied on the gross receipts
                 derived by these retailers from the
                 rental of any rooms, lodgings, or
                 accommodations furnished to transients
                 for a consideration.

N.C. Gen. Stat. ' 105-164.4(a)(3) (2005) (effective for sales

made on or after July 1, 2007).

    Whether     the    gross   receipts    derived   from   the   rentals    in
                                       -17-
which defendants engage are subject to the occupancy tax hinges

on    whether   defendants      are   “retailers”   within      the       meaning   of

section 105-164.4(a)(3).          See id. (“A privilege tax is imposed

on . . . the retailer’s net taxable sales or gross receipts . .

. .    Operators of hotels, motels, tourist homes, tourist camps,

and similar type businesses . . . are considered retailers under

this Article.”).

       The   trial    court   found    that    plaintiffs      did    not    contend

defendants were operators of hotels, motels, tourist homes, or

tourist camps.         Therefore, the court considered only whether

defendants were operators of “similar type businesses.”

       In addressing this issue, we note with favor the reasoning

of    the    Fourth   Circuit    Court    of   Appeals    in     Pitt      Cnty.    v.

Hotels.com, GP, LLC, 553 F.3d 308 (4th Cir. 2009), considering

“whether the phrase ‘operators of hotels, motels, tourist homes,

tourist camps, and similar type businesses’ in § 105–164.4(a)(3)

in the North Carolina sales tax statute applies to online travel

companies.”      Id. at 313.      In considering whether OTC and hotels

operated “similar type businesses,” the Court found applicable

the    principle      of   ejusdem    generis,    the    canon       of    statutory

construction standing for the proposition that “where general

words follow a designation of particular subjects or things, the
                                      -18-
meaning of the general words will ordinarily be presumed to be,

and construed as, restricted by the particular designations and

as including only things of the same kind, character and nature

as those specifically enumerated.”            Id. (citing Smith v. Smith,

314 N.C. 80, 331 S.E.2d 682, 686–87 (1985)); see also State ex

rel. Utilities Comm'n v. Envtl. Def. Fund, 214 N.C. App. 364,

368, 716 S.E.2d 370, 373 (2011) (“North Carolina courts have

followed this explanation of how the doctrine of ejusdem generis

should   be   applied   by     employing   the   doctrine     when   a   list   of

specific terms is followed by a general term. See Liborio v.

King, 150 N.C. App. 531, 536–37, 564 S.E.2d 272, 276 (2002)

(interpreting     the   term    “misrepresentation”      to    be    limited    to

knowing and intentional behavior, where the term followed the

words fraud and deception); [Smith, 314 N.C. at 87, 331 S.E.2d

at 687] (interpreting a provision allowing the court to consider

“any other factor which the court finds to be just and proper”

to be limited to economic factors, where the provision followed

eleven other provisions having to do with the economy of the

marriage); [State v. Lee, 277 N.C. 242, 244, 176 S.E.2d 772, 774

(1970)] (interpreting the phrase “or other like weapons” to be

limited to automatic or semiautomatic weapons, where the phrase

followed      a   specific     list   of     automatic   and     semiautomatic
                                        -19-
weapons).”)).

       In     section    105-164.4(a)(3),        the     phrase   “similar     type

businesses” follows the list: “hotels, motels, tourist homes,

[and] tourist camps[.]”         N.C.G.S. ' 105-164.4(a)(3).              A “hotel”

is defined as “[a]n establishment that provides lodging and usu

[sic]. Meals and other services for travelers and other paying

guests.” AMERICAN HERITAGE COLLEGE DICTIONARY 658 (3d ed. 1993). A

motel is “[a]n establishment that provides lodging for motorists

in rooms usu. having direct access to a parking area.” Id. at

890.     A “tourist home” is “a house in which rooms are available

for    rent    to   transients.”       Tourist    home     definition,    merriam-

webster.com,                                                 http://www.merriam-

webster.com/dictionary/tourist%20home             (last     visited   August    11,

2014).      We were unable to find a definition for “tourist camp,”;

however, we note that “tourist” is defined as “[o]ne who travels

for pleasure,” and “camp” is defined as “[a] place where tents,

huts, or other temporary shelters are set up . . . . [, or] [a]

place in the country that offers simple group accommodations and

organized recreation or instruction.”                    AMERICAN HERITAGE COLLEGE

DICTIONARY     202,     1431.      A     common    characteristic        of    such

establishments is that they are physical structures with rooms

or at least physical locations.                Per section 105-164.4(a)(3),
                                            -20-
the     “operator”     of    such     an     establishment     is      a    “retailer.”

“Operator” is defined as “[t]he owner or manager of a business

or industrial enterprise.”             AMERICAN HERITAGE COLLEGE DICTIONARY 957.

      Plaintiffs do not contend that defendants are owners or

managers of the establishments providing accommodations; rather,

plaintiffs    argue     that      this      Court   should   interpret           the   word

“business” broadly.           However, such an analysis would ignore the

requirements      of    section       105-164.4(a)(3),       that      defendants        be

operators of “similar type businesses.”                   We hold that defendants

are not operators of hotels, motels, tourist homes, or tourist

camps    within   the       meaning    of    section      105-164.4(a)(3).             This

holding is consistent with the reasoning of the trial court and

the   Pitt   Court.         See   Pitt     Cnty.,   553    F.3d   at       313   (hotels,

motels, tourist homes, and tourist camps – “all provide physical

establishments . . . where guests can stay.                         A business that

arranges for the rental of hotel rooms over the internet, but

that does not physically provide the rooms, is not a business

that is of a similar type to a hotel, motel, or tourist home or

camp.”).     Defendants are neither operators nor retailers within

the meaning of section 105-164.4(a)(3).                      See N.C.G.S. ' 105-

164.4(a)(3) (“A privilege tax is imposed on . . . the retailer’s

net taxable sales or gross receipts . . . .                                Operators of
                                     -21-
hotels, motels, tourist homes, tourist camps, and similar type

businesses . . . are considered retailers under this Article.”);

see also Pitt Cnty., 553 F.3d at 314 (holding that an online

travel company is not a retailer within the plain meaning of

General Statutes, section 105-164.4(a)(3)).

     Applying our holding that defendants are not “retailers”

within   the     meaning     of     General     Statutes,   section   105-

164.4(a)(3)15,   we   must   also    conclude    that   defendants’   gross



15
    We note that pursuant to 2009 N.C. Sess. Laws 2010-31, '
31.6(a) (effective July 1, 2010), N.C. Gen. Stat. ' 105-
164.4(a)(3) was re-written.       As re-written, section 105-
164.4(a)(3) includes the following language:

          Gross receipts derived from the rental of an
          accommodation include the sales price of the
          rental of the accommodation. . . .       The
          sales   price    of   the   rental   of   an
          accommodation marketed by a facilitator
          includes charges designated as facilitation
          fees and any other charges necessary to
          complete the rental.

          A person who provides an accommodation that
          is offered for rent is considered a retailer
          under this Article. A facilitator must
          report to the retailer with whom it has a
          contract the sales price a consumer pays to
          the facilitator for an accommodation rental
          marketed by the facilitator. A retailer must
          notify a facilitator when an accommodation
          rental   marketed  by  the   facilitator  is
          completed and, within three business days of
          receiving the notice, the facilitator must
          send the retailer the portion of the sales
          price the facilitator owes the retailer and
                                          -22-
receipts are not subject to the State sales tax under section

105-164.4(a)(3) (“A tax . . . is levied on the gross receipts

derived by these retailers . . . .”). Thus, the gross receipts

defendants      derive   from       the     rentals         are    not   subject       to

plaintiffs’ room occupancy tax.                  See 2001 N.C. Sess. Laws ch.

439 ' 7.1; 2001 N.C. Sess. Laws ch. 162 ' 1; 1991 N.C. Sess.

Laws ch. 594, ' 4; and 1989 N.C. Sess. Laws ch. 821, ' 1.

Because   the    trial     court     did        not   err    in    determining        that

defendants have no liability under the respective ordinances of

Wake, Dare, Buncombe, and Mecklenburg Counties for failure to

collect and remit an occupancy tax on the sale price defendants

impose on consumers, plaintiffs’ argument is overruled.

                                           II

    Plaintiffs      next    argue     that        the     trial    court      erred    in


          the tax due on the sales price.

          . . .

          The following            definitions          apply     in   this
          subdivision:

          . . .

          b. Facilitator. – A person who is not a
          rental agent and who contracts with a
          provider of an accommodation to market the
          accommodation and to accept payment from the
          consumer for the accommodation.

2009 N.C. Sess. Laws ch. 2010-31, '31.6(a).
                                         -23-
determining that defendants are not contractually obligated to

collect and remit the occupancy tax.                  We disagree.

    In     its   order,      the   trial      court    concluded      that      as   to   a

recovery    based      on     a      theory     of     contractual        undertaking,

“Plaintiffs failed to provide sufficient notice of the events or

transactions      which     produced    the     claim       to   enable   the    adverse

party to understand the nature of it and the basis for it.”                           The

court   went     on   to    reason    that    even     if    it   were    to    consider

plaintiffs’ claim for recovery under a theory of contractual

undertaking, “it would [] have to acknowledge that there is no

legal support for such a theory in North Carolina’s case law.”

For these reasons, the trial court granted defendants’ motion to

dismiss the claim.

    “The grant of a motion to dismiss is reviewed de novo on

appeal.”    Hayes v. Peters, 184 N.C. App. 285, 287, 645 S.E.2d

846, 847 (2007) (citation omitted).

    Pursuant to General Statutes, section 1A-1, Rule 8,

            [a] pleading which sets forth a claim for
            relief . . . shall contain

            (1) A short and plain statement of the claim
            sufficiently particular to give the court
            and the parties notice of the transactions,
            occurrences, or series of transactions or
            occurrences, intended to be proved showing
            that the pleader is entitled to relief and
                                          -24-
               (2) A demand for judgment for the relief to
               which he deems himself entitled.

N.C. Gen. Stat. ' 1A-1, Rule 8(a) (2013).                       By enacting section

1A-1, Rule 8(a), our General Assembly adopted the concept of

notice pleading.           See Sutton v. Duke, 277 N.C. 94, 100, 176

S.E.2d 161, 164 (1970).               Under notice pleading, “a statement of

claim is adequate if it gives sufficient notice of the claim

asserted to enable the adverse party to answer and prepare for

trial,    to    allow     for   the    application       of    the   doctrine   of   res

judicata, and to show the type of case brought.”                           Id. at 102,

176 S.E.2d at 165 (citation omitted).                        “Such simplified notice

pleading       is   made    possible      by     the    liberal      opportunity     for

discovery and the other pretrial procedures established by the

Rules to disclose more precisely the basis of both claim and

defense    and      to   define    more   narrowly       the    disputed    facts    and

issues.”       Pyco Supply Co., Inc. v. Am. Centennial Ins. Co., 321

N.C. 435, 442—43, 364 S.E.2d 380, 384 (1988) (citation omitted).

“Despite the liberal nature of the concept of notice pleading, a

complaint must nonetheless state enough to give the substantive

elements of at least some legally recognized claim . . . .”

Hayes v. Peters, 184 N.C. App. 285, 287, 645 S.E.2d 846, 847

(2007) (citation and quotations omitted).

    Plaintiffs           contend      defendants       had    sufficient    notice    of
                                         -25-
plaintiffs’ contractual             obligation    theory from the complaints

and plaintiffs’ summary judgment trial briefs.

    In their brief to this Court, plaintiffs combine and point

to five allegations scattered throughout the complaint filed by

Mecklenburg County and argue the allegations are sufficient to

provide      defendants       with    notice     of    plaintiffs’        contractual

obligation theory.

             Mecklenburg County’s Complaint alleges that:
             (1) Defendants contract with local hotels
             for rooms at negotiated discounted rates and
             “charge and collect the Tax from occupants
             at the time of the sale based on the marked
             up   room   rates”;   (2)  Defendants   were
             “authorized to act on behalf of the hotels”;
             (3) Defendants, as “agents” for the hotels,
             “were required to collect the Tax from the
             consumers of the rooms”; (4) Defendants, as
             agents for the hotels, have collected the
             Tax but failed to pay the full amount due to
             Plaintiffs; and (5) Plaintiffs are entitled
             to a declaratory judgment that Defendants
             are agents for taxable establishments and
             “as such, are required to collect the
             County’s full tax from the consumers of the
             rooms.”

    The referenced allegations were found in separate sections

of the complaint including: in assertions of underlying fact; in

a request for a declaratory judgment; in a claim for recovery

based   on    a    theory     of    agency;    and    in   plaintiff   Mecklenburg

County’s     prayer     for    relief.          However,    even    reading    these

statements        together,    we    cannot     interpret    them    as    providing
                                               -26-
notice    of    a    cognizable            claim.      Plaintiffs       attempt         to    seek

recovery       for    breach          of    contract        based     on     a    contractual

obligation to collect the occupancy tax on the gross receipts

defendants derived from the rental of accommodations.                                   On this

record, we cannot find that plaintiffs’ contract theory has been

sufficiently pled and therefore, find no error in the trial

court’s      ruling        granting        defendants’       motion     to       dismiss      this

claim.       Though        not   specifically         argued,       plaintiffs       reference

statements in the complaints of Wake County, Buncombe County,

and   Dare     County.           A    review    of     these      complaints        reveals      a

repetition      of    some       portions      of     the    allegations         made    in    the

Mecklenburg County complaint, but they are likewise insufficient

to    provide       notice       of   a     cognizable       claim.         Thus,       we    find

insufficient notice of a contractual obligation claim as to the

complaints of Buncombe, Dare, and Wake Counties.

       Plaintiffs          further        contend     that    a     claim    raised      during

summary judgment may provide sufficient notice to the opposing

party    where       the    party      asserting       the     claim    did       not    earlier

disavow it.          In support of their contention, plaintiffs cite

cases from the Sixth Circuit Federal Court interpreting Federal

Rules of Civil Procedure:

               Where language in a complaint is ambiguous,
               the Sixth Circuit employs a “course of the
                                 -27-
         proceedings   test”    to  determine     whether
         defendants have received notice of the
         plaintiff's claims, analyzing the adequacy
         of notice on a case-by-case basis. Accord
         Moore v. City of Harriman, 272 F.3d 769,
         772, 774 (6th Cir.2001) (en banc) (plurality
         opinion) (“Subsequent filings in a case may
         rectify   deficiencies     in    the    initial
         pleadings.”     (citations     omitted)).      A
         plaintiff   may     sufficiently     notify    a
         defendant of an argument by raising it in a
         response to summary judgment, provided that
         the party does not disavow its intent to use
         the argument earlier in the proceedings.

Copeland v. Regent Elec., Inc., 499 F. App'x 425, 435 (6th Cir.

2012) (unpublished) (citations and quotations omitted).

    Interpreting   our   Rules   of   Civil   Procedure   as   to   notice

pleading, our Supreme Court has held that “notice pleading is

made possible by the liberal opportunity for discovery and the

other pretrial procedures established by the Rules to disclose

more precisely the basis of both claim and defense and to define

more narrowly the disputed facts and issues.”        Pyco Supply Co.,

Inc., 321 N.C. at 442—43, 364 S.E.2d at 384.         Plaintiffs raised

a claim for the first time in a motion for summary judgment and

on appeal, provide no authority from our General Statutes or

North Carolina jurisprudence to support their argument to do so.

We affirm the trial court’s dismissal of plaintiff’s claim that

defendants are contractually obligated to collect and remit the

occupancy tax.
                                      -28-
                                      III

    Plaintiffs argue the trial court erred by dismissing their

claim   that    defendants      collected    but   failed   to    remit   taxes

charged on the sales price paid by consumers.                    Specifically,

plaintiffs     contend    Judge    Murphy    impermissibly       overruled   the

prior holding of another superior court judge, Judge Diaz.                   We

disagree.

    “Litigants and superior court judges must remain mindful

that the power of one judge of the superior court is equal to

and coordinate with that of another.”              Adkins v. Stanly Cnty.

Bd. of Educ., 203 N.C. App. 642, 651, 692 S.E.2d 470, 476 (2010)

(citation and quotations omitted).

            The well established rule in North Carolina
            is that no appeal lies from one Superior
            Court judge to another; that one Superior
            Court judge may not correct another's errors
            of law; and that ordinarily one judge may
            not modify, overrule, or change the judgment
            of another Superior Court judge previously
            made in the same action.

Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488

(1972) (citation omitted).

    Here,      Judge     Diaz   was   presented     with    a    challenge   to

plaintiffs’ claim for collected but not remitted taxes in the

form of defendants’ Rule 12(b)(6) motion to dismiss.                  When the

motion was denied, defendants subsequently challenged the same
                                -29-
claim in the form of a motion for summary judgment before Judge

Murphy.

                 The test [for a] Rule 12(b)(6) [motion]
            is   whether   the    pleading   is   legally
            sufficient.    The test on a motion for
            summary judgment made under Rule 56 and
            supported by matters outside the pleadings
            is whether on the basis of the materials
            presented to the courts there is any genuine
            issue as to any material fact and whether
            the movant is entitled to judgment as a
            matter of law.    Therefore, the denial of a
            motion to dismiss made under Rule 12(b)(6)
            does not prevent the court, whether in the
            person of the same or a different superior
            court judge, from thereafter allowing a
            subsequent motion for summary judgment made
            and supported as provided in Rule 56.

Barbour v. Little, 37 N.C. App. 686, 692, 247 S.E.2d 252, 256

(1978).     “[T]he Rule 12(b)(6) motion is addressed solely to the

sufficiency of the complaint . . . .”      Indus., Inc. v. Constr.

Co., 42 N.C. App. 259, 263, 257 S.E.2d 50, 53 (1979) (citation

omitted).

    In his 19 November 2007 order addressing defendants’ motion

to dismiss plaintiffs’ claim for failure to remit taxes, Judge

Diaz gave the following summary as to plaintiffs’ allegations:

                 (71) The Complaints in these cases
            allege (either directly or by implication)
            that Defendants are in fact charging and
            collecting the Occupancy Tax from consumers,
            but not remitting to Plaintiffs the full
            amount collected.      In fact, Plaintiffs
            allege    Defendants   are   charging    and
                                           -30-
               collecting the tax on the higher retail rate
               charged to consumers, but only remitting to
               Plaintiffs an amount of tax based on the
               lower wholesale rate paid to hotel owners,
               thereby pocketing the difference. Plaintiffs
               also   allege  Defendants   are  not   filing
               occupancy returns, as required by law. . . .

      Based     on    these    allegations,        Judge   Diaz     concluded      that

“Defendants have not complied with the plain language of the

Occupancy Tax (and the corresponding enabling acts) requiring

them to account for and remit all such taxes.”                     Thus, “[a]t this

stage . . . the Court need only look to Plaintiffs’ pleadings to

conclude       that    dismissal      of    the     principal      claims     is     not

appropriate.”         Judge Diaz, therefore, denied defendants’ motion

to dismiss pursuant to Rule 12(b)(6).

      On   4    February      2011,   Judge       Murphy   heard    arguments      from

plaintiffs and defendants on cross motions for summary judgment.

Based on their briefs and arguments before the trial court,

Judge Murphy granted summary judgment in favor of defendants,

dismissing      plaintiffs’      claim      for    collected    but     not   remitted

taxes.

      In his order, Judge Murphy discussed three cases presented

by   plaintiffs       in   support    of   their     motion:    “City    of   Rome    v.

Hotels.com,      No.4:05-CV-249-HLM,          2006    U.S.     Dist.    LEXIS      56369

(N.C. May 8, 2006)”; “Expedia, Inc. v. City of Columbus, 681
                                            -31-
S.E.2d   122     (Ga.    Sup.     Ct.   2009)”;        and      “City      of    Gallup   v.

Hotels.com,     L.P.,    No.06-0549-JC,            2007    U.S.    Dist.        LEXIS   86720

(January 30, 2007).”          Each case dealt with similar questions of

tax liability and OTCs in other jurisdictions.                              Judge Murphy

observed    that    where       an    OTC    had     been      held     responsible       for

remitting a tax, the conclusion was predicated upon a statutory

requirement or contractual provision imposing upon the OTC the

responsibility for collecting the tax.                         By comparison, Judge

Murphy noted that our North Carolina General Statutes did not

impose the same duty upon defendants, and plaintiffs provided no

authority      supporting     a      recovery       predicated        on   a     theory   of

contractual undertaking.               Accordingly, Judge Murphy concluded

that “Plaintiffs’ [sic] have been unable to direct this Court to

any   binding    legal    precedent         to     support     a   ‘collected-but-not-

remitted’      theory    of     recovery”        and      on   this     basis,      granted

defendants’ motion to dismiss the claim.

      Judge Diaz and Judge Murphy addressed motions in this case

at different stages in the action and based on different rules.

Judge Diaz concluded pursuant to Rule 12(b)(6) that the factual

allegations in plaintiffs’ complaints were legally sufficient so

as to not preclude their claims for recovery of taxes.                                    See

Barbour, 37 N.C. App. at 692, 247 S.E.2d at 256 (“The test [for
                                        -32-
a] Rule 12(b)(6) [motion] is whether the pleading is legally

sufficient.”).        Thereafter, Judge Murphy concluded pursuant to

Rule 56 that as to the issue of whether defendants were subject

to the Occupancy Tax, plaintiffs failed to provide any authority

that defendants had a legal duty to collect taxes. See N.C. Gen.

Stat. ' 1-1A, Rule 56(c) (2013) (Summary judgment is appropriate

“if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law.”).

Based on our jurisprudence, Judge Murphy’s ruling pursuant to

Rule    56   was    proper.       Therefore,       plaintiffs’      argument      is

overruled.

                                         IV

       Lastly,     plaintiffs   argue    that     the   trial    court   erred   in

dismissing       their   claims    for         accounting,      conversion,      and

constructive trust.       We disagree.

       Again, “[w]e review a trial court's order granting summary

judgment de novo . . . .”          Stanly Cnty. Bd. of Educ., 203 N.C.

App. at 644, 692 S.E.2d at 472 (citation omitted).

                                  Accounting

       In the complaints filed by Dare County, Mecklenburg County,
                                          -33-
and Wake County, each            county’s demand for           an accounting was

predicated upon the assertion that defendants were under a legal

obligation based on their respective Occupancy Tax resolution or

ordinance to collect and remit taxes to the County on the gross

receipts derived by them as compensation or consideration for

renting    rooms   in    the    county.         Buncombe    County’s       declaratory

judgment    action      sought    a     ruling    declaring        “its    affirmative

rights to audit and collect occupancy tax obligations owed by

these Defendants to [] Plaintiff.”

     In Issue I, we held that the enabling legislation enacted

by our General Assembly as to Buncombe, Dare, Mecklenburg, and

Wake counties allowing the counties to impose an occupancy tax

by   resolution      did   not        encompass     the    transactions          wherein

consumers    rented      lodging        accommodations       through       defendants’

websites.      Therefore,         as     plaintiffs       cannot    establish       that

defendants    were      under     a     legal     obligation       based    on     their

individual occupancy tax resolutions to collect and remit taxes

to the respective county, plaintiffs cannot prevail on their

demands for accounting.                Accordingly, we overrule plaintiffs’

argument     and   affirm        the     trial    court’s      ruling      dismissing

plaintiffs’ demand for accounting.

                                       Conversion
                                        -34-
      First,    we    note     that    while    claims   of    conversion     were

asserted in the complaints of Dare County, Mecklenburg County,

and   Wake   County,    the    trial    court    addressed    only    Mecklenburg

County’s conversion claim in the trial court’s summary judgment

order.

      On 19 November 2007, the trial court granted defendants’

12(b)(6)     motion    to    dismiss   the     conversion    claims   brought   by

plaintiffs Buncombe County, Dare County, and Wake County.                       No

appeal   was   taken    by    Buncombe    County,    Dare     County,   and   Wake

County from these dismissals.

      On 14 January 2008, Mecklenburg County filed its complaint

asserting a claim for conversion.              In its complaint, Mecklenburg

County alleged the following:

             Defendants, upon information and belief,
             keep the difference between the amount of
             Tax charged to the public and the amount of
             Tax remitted to the hotel, motel, or inn,
             which then remits this lower tax amount to
             the County.   At all times herein mentioned,
             Defendants   wrongfully    possessed   and/or
             controlled the monies which constitute this
             difference between the amount of Tax charged
             to the public and the amount of Tax remitted
             to the County. Defendants have converted or
             taken these Tax monies for their own use and
             benefit, thereby permanently depriving the
             County of the use and benefit thereof.

Following the assignment of Mecklenburg County’s complaint to

the business court and the consolidation of these actions, both
                                        -35-
plaintiffs and defendants filed motions for summary judgment.

The trial court addressed only Mecklenburg County’s claim for

conversion     in    its    summary    judgment     order      and   dismissed   the

claim.

       “In    North     Carolina,       conversion        is     defined    as   an

unauthorized assumption and exercise of the right of ownership

over goods or personal chattels belonging to another, to the

alteration of their condition or the exclusion of an owner's

rights.”      Myers v. Catoe Constr. Co., 80 N.C. App. 692, 695, 343

S.E.2d 281, 283 (1986) (citation omitted).

              The general rule is that there is no
              conversion until some act is done which is a
              denial or violation of the plaintiff's
              dominion over or rights in the property.
              Therefore,   two   essential   elements  are
              necessary in a claim for conversion: (1)
              ownership in the plaintiff, and (2) a
              wrongful conversion by the defendant.

Bartlett Milling Co. v. Walnut Grove Auction & Realty Co., 192

N.C.   App.    74,    86,   665   S.E.2d     478,   489   (2008)     (citation   and

quotations omitted).          “[T]he general rule is that money may be

the subject of an action for conversion only when it is capable

of being identified and described.” Variety Wholesalers, Inc. v.

Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 528, 723

S.E.2d 744, 750 (2012) (citation omitted).

              The    requirement      that     there   be      earmarked
                                          -36-
              money   or   specific     money   capable    of
              identification    before   there   can  be    a
              conversion has been complicated as a result
              of the evolution of our economic system.
              Recognizing this reality, numerous courts
              around   the   country   have   adopted   rules
              requiring the specific identification of a
              sum of money, rather than identification of
              particular bills or coins.

Id.    at    528—29,    723    S.E.2d    at    750   (citations     and      quotations

omitted).      “In the context of this conversion claim, we conclude

that    funds        transferred       electronically    may       be   sufficiently

identified      through       evidence    of   the   specific      source,     specific

amount, and specific destination of the funds in question.”                         Id.

at    529,   723     S.E.2d    at     750—51   (addressing     a   claim      involving

transfers       of     funds     in     specific     dollar     amounts        totaling

approximately $888,000.00).

       Here, Mecklenburg County’s conversion claim is not one for

a specific amount of taxes alleged due, much less particular

bills and coins; rather, Mecklenburg County’s claim is for a

category of monies allegedly owed, taxes.                  Even reading Variety

Wholesalers, Inc., broadly to presume that in the context of any

conversion claim where funds are transferred electronically the

establishment of the funds’ specific source, specific amount,

and     specific         destination           is    sufficient         to      connote

identification, Mecklenburg County’s complaint fails to allege
                                    -37-
such requirements.      See id.; see also State ex rel. Pilard v.

Berninger, 154 N.C. App. 45, 57, 571 S.E.2d 836, 844 (2002)

(holding the evidence supported the conversion claim where the

spouse of the decedent, acting as an administratix, failed to

properly   distribute   the    decedent’s    share   of   three   $75,000.00

certificates of deposit as a portion of his estate).              Therefore,

we see no error in the trial court’s dismissal of Mecklenburg

County’s conversion claim.

                            Constructive Trust

                A constructive trust is a duty, or
           relationship, imposed by courts of equity to
           prevent the unjust enrichment of the holder
           of title to, or of an interest in, property
           which such holder acquired through fraud,
           breach of duty or some other circumstance
           making it inequitable for him to retain it
           against the claim of the beneficiary of the
           constructive trust.

Variety Wholesalers, Inc., 365 N.C. at 530, 723 S.E.2d at 751

(citation omitted).

    Here, plaintiffs have been unable to establish any genuine

issue of material fact as to whether defendants have retained

monies   collected   from     the   rental   of   accommodations    in   the

respective counties which were “acquired through fraud, breach

of duty or some other circumstance making it inequitable for

[defendants] to retain it[.]”          Id.   As such, summary judgment
                                 -38-
was   appropriate.    Accordingly,   we   affirm    the   trial   court’s

dismissal   of    plaintiffs’   claims    seeking   imposition     of   a

constructive trust.

      Affirmed.

      Judges McGEE and STROUD concur.
