An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1095
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


WENDY M. DALE,
     Plaintiff,

      v.                                      Orange County
                                              No. 12 CVS 1883
ALCURT CARRBORO, LLC; ALCURT
REALTY GROUP, INC.; ASPEN SQUARE
MANAGEMENT, INC.; NEPSA OPERATING
GROUP, LLC; AND OLD WELL OWNERS
ASSOCIATION,
     Defendants.


      Appeal by Plaintiff from order entered 23 April 2013 by

Judge Robert H. Hobgood in Orange County Superior Court.                      Heard

in the Court of Appeals 5 February 2014.


      Wendy M. Dale pro se.

      Pulley, Watson, King & Lischer, P.A., by Charles F.
      Carpenter, for Defendants Alcurt Carrboro, LLC; Alcurt
      Realty Group, Inc.; Aspen Square Management, Inc.; and
      Nepsa Operating Group, LLC.

      Cranfill Sumner & Hartzog LLP, by Patrick H. Flanagan and
      Mica   Nguyen  Worthy,  for  Defendant  Old  Well  Owners
      Association.


      STEPHENS, Judge.
                                           -2-




               Procedural History and Factual Background

       This   appeal   arises       from       an     assessment    authorized        by    a

condominium    homeowners         association.           Plaintiff    Wendy      M.    Dale

owns a condominium unit in the Old Well Condominium development

complex   (“Old   Well”),1        located        in    Carrboro,     North      Carolina.

Plaintiff, like all other condominium owners in Old Well, is a

member of Defendant Old Well Owners Association (“OWOA”), a non-

profit corporation that manages the condominium development.

       In June 2012, Defendant Alcurt Carrboro, LLC, a Delaware

limited liability company,               (“Alcurt Carrboro”) purchased                 more

than    three-quarters       of    the     condominium       units        in   Old    Well.

Defendant Alcurt Realty Group, Inc. (“ARG”) is a Massachuesetts

corporation     and    the    managing           member     of     Alcurt      Carrboro.2

Following the purchase, Alcurt Carrboro voted to appoint a new

board of directors for OWOA and hired Defendant Aspen Square

Management,     Inc.   (“Aspen”),          a    Massachusetts        corporation,          to

handle OWOA’s administrative affairs as well as to maintain the

1
  Plaintiff’s unit is in section I of the complex which includes
three sections of condominiums.
2
   In her complaint, Plaintiff                      designates     both    entities        as
“hereinafter, ‘Alcurt[.]’”
                                       -3-
Old Well common areas.            Defendant Nepsa Operating Group, LLC

(“Nepsa”) is a Delaware limited liability company and the parent

company of Aspen.3

     In December 2012, the new board of directors sent a notice

to all OWOA members, informing them of a special meeting to vote

on a proposed assessment in the amount of $5,406 per unit.                    This

assessment    was    to   be   used   for    “proposed    renovations    as   the

complex [was] in a state of disrepair, such that there have been

leaks in the roofs and the majority of the stairs and stairwells

have been deemed condemned by Town Building Inspectors.”                 At the

special meeting, the proposed assessment passed by a majority

vote, an unsurprising result given that Alcurt Carrboro held

more than three-quarters of the votes.

     On 27 December 2012, Plaintiff filed a complaint against

Defendants,    alleging        that   the    assessment    was     unreasonable,

excessive, illegal, and unnecessary.               She alleged claims for

breach of fiduciary duty and breach of contract as to OWOA, and

unfair and deceptive trade practices, tortious interference with

contract,    civil   conspiracy,      and    punitive    damages    against    the

other defendants.



3
  Likewise, in her complaint, Plaintiff designates both of these
entities as “hereinafter, ‘Aspen[.]’”
                                         -4-
    On    6    March     2013,   all    defendants    except     OWOA   moved   to

dismiss the claims against them pursuant to Rule 12(b)(6) of our

Rules of Civil Procedure.               OWOA moved to dismiss the claims

against   it    on   4   April   2013,    citing     Rule   12(b)(1)    and    (6).

Following a hearing on the motions to dismiss, the trial court

entered an order on 23 April 2013 dismissing all claims against

all defendants pursuant to Rule 12(b)(6).              Plaintiff appeals.

                                   Discussion

    In    her    brief     to    this    Court,    filed    31   October      2013,

Plaintiff explicitly declines to argue her issues on appeal as

to OWOA and asks that we deem them abandoned.                    On 15 November

2013, OWOA filed a motion to dismiss Plaintiff’s appeal with

this Court.      That motion was referred to this panel by order

entered 26 November 2013.              “All . . . issues or questions not

argued by [an appellant] in h[er] brief are deemed abandoned.”

State v. Brooks, 204 N.C. App. 193, 195, 693 S.E.2d 204, 207

(2010).       Accordingly, we      deem Plaintiff’s appeal as to OWOA

abandoned and dismiss that portion of the appeal.

    As for Plaintiff’s appeal from the dismissal of her claims

against Alcurt Carrboro, ARG, Aspen, and Nepsa (collectively,

“Defendants”) for unfair and deceptive trade practices, tortious
                                  -5-
interference   with   contract,   civil   conspiracy,   and   punitive

damages, we dismiss those arguments as moot.

         That a court will not decide a “moot” case
         is recognized in virtually every American
         jurisdiction.       In    federal   courts    the
         mootness doctrine is grounded primarily in
         the “case or controversy” requirement of
         Article III, Section 2 of the United States
         Constitution     and      has    been     labeled
         “jurisdictional”     by    the   United    States
         Supreme   Court.       In    state   courts   the
         exclusion     of     moot      questions     from
         determination is not based on a lack of
         jurisdiction but rather represents a form of
         judicial restraint.

         Whenever, during the course of litigation it
         develops that the relief sought has been
         granted or that the questions originally in
         controversy between the parties are no
         longer   at  issue,   the   case should   be
         dismissed, for courts will not entertain or
         proceed with a cause merely to determine
         abstract propositions of law.

         Unlike the question of jurisdiction, the
         issue of mootness is not determined solely
         by examining facts in existence at the
         commencement of the action.   If the issues
         before a court . . . become moot at any time
         during the course of the proceedings, the
         usual response should be to dismiss the
         action.

In re Peoples, 296 N.C. 109, 147-48, 250 S.E.2d 890, 912 (1978)

(citations and some internal quotation marks omitted; emphasis

added), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979).

    Our careful review of Plaintiff’s complaint reveals that
                              -6-
her claims against Defendants for unfair and deceptive trade

practices and for tortious interference with contract are based

upon the authorization for the allegedly illegal assessment to

be levied by OWOA:

         34. Pursuant to N.C. Gen. Stat. § 75-1.1
         by[] Alcurt and/or Aspen unlawfully engaged
         in an unfair method of competition in or
         affecting commerce by utilizing Alcurt’s
         voting power in Old Well to authorize the
         levying of an unreasonable, excessive and
         illegal assessment for their own financial
         gain, knowing such assessment would pose a
         substantial   monetary   burden  that  would
         otherwise not have existed on the other
         Condominium unit owners, including owner-
         investors such as Plaintiff, and that such
         monetary burden would likely force some unit
         owners into foreclosure or short sale,
         thereby negatively     affecting the market
         values of all the units, causing the loss of
         rental income from their units and the
         potential eviction of their tenants or the
         non-renewal of their tenants’ leases, and
         making such rental units available for
         purchase by Alcurt at below fair market and
         assessed values.

         . . .

         38.   Alcurt  and/or   Aspen   intentionally
         induced Old Well by Alcurt’s replacement of
         the Board of Directors of Old Well and by
         voting for such Board of Directors to levy
         an assessment (and by Aspen’s use of its
         officer Jeffrey Stole as the President of
         Old Well in carrying out such vote and
         assessment) unreasonably and in bad faith
         and not for the sole purpose of defraying
         the common expenses or improving the common
         property of the Condominium unit owners and
                                -7-
            that is instead for the purpose of improving
            Alcurt’s   Condominium  units,  compensating
            Aspen for its services to Alcurt and paying
            for    other   non-allowable   expenses   in
            contravention of the valid contract between
            Old Well and Plaintiff.

            39. Alcurt acted without legal justification
            in such inducement of Old Well to breach the
            Declaration of Old Well Condominium I in
            that as a member of Old Well Alcurt is bound
            by its contractual obligations to Old Well
            and pursuant thereto is responsible for the
            maintenance,    repair,   replacements   and
            improvements for its own units and has no
            legal right in contract or otherwise to
            attempt to pass on through its majority
            interest voting power in Old Well such
            individual costs and expenses to the other
            members of Old Well.

            40. Aspen acted without legal justification
            in such inducement of Old Well to breach the
            Declaration of Old Well Condominium I in
            that as the manager of both the Condominium
            and of Alcurt’s units, Aspen had a legal and
            contractual duty to prevent a conflict of
            interest between Alcurt and Old Well and to
            keep separate the finances and business
            transactions of each, which duty it breached
            by its instrumentality in carrying out the
            vote    for    an    assessment   levied   in
            contravention   of   Old   Well’s  Bylaws  by
            authorizing improvements made to Alcurt’s
            units by Old Well which are actually the
            responsibility of Alcurt and not that of Old
            Well, and for purposes not within the
            purview of Old Well and for the primary
            advantage   of    Alcurt   rather   than  the
            membership of Old Well as a whole.

(Emphasis   added).    Defendants   argue   that   “Plaintiff’s   claims

were mooted shortly after she filed her complaint” when, on 22
                                          -8-
January      2013,   the       proposed      assessment       was   withdrawn.           In

Plaintiff’s reply brief, she acknowledges the withdrawal of the

assessment.          As    a    result,      “the     question[]         originally      in

controversy between the parties[, to wit, whether the assessment

was illegal, is] no longer at issue[,]” id., and Plaintiff’s

claims for unfair and deceptive trade practices and for tortious

interference with contract are moot.

       As for Plaintiff’s arguments regarding her claims against

Defendants for civil conspiracy and punitive damages, those must

also be dismissed.          “It is well established that there is not a

separate civil action for civil conspiracy in North Carolina.”

Piraino Bros., LLC v. Atl. Fin. Group, Inc., 211 N.C. App. 343,

350, 712 S.E.2d 328, 333 (citations and internal quotation marks

omitted), disc. review denied,                 365 N.C. 357, 718 S.E.2d 391

(2011).      Accordingly, in light of the mootness of her claims for

unfair and deceptive trade practices and tortious interference

with    contract,     Plaintiff       cannot        sustain     a   claim     for     civil

conspiracy.      Likewise, “[p]unitive damages may be awarded only

if     the   claimant      proves     that     the    defendant         is   liable    for

compensatory     damages        and   that    one    of   the   .   .    .   aggravating

factors was present and was related to the injury for which

compensatory damages were awarded[.]”                     N.C. Gen. Stat. § 1D-
                                      -9-
15(a)     (2013).       Here,   Plaintiff    is    not   entitled      to    any

compensatory damages from Defendants and thus cannot sustain a

claim for punitive damages.

    As for Plaintiff’s assertions that she also sought other

relief, such as an injunction against further violations of the

bylaws and specific performance in the form of a release of OWOA

financial    records     for    the   year   2012,    those   demands       were

specifically directed against OWOA, not against Defendants.                  As

noted   supra,      Plaintiff   has   explicitly     abandoned   all    claims

against OWOA, and the trial court’s dismissal of those claims

stands.    For the reasons stated herein, Plaintiff’s appeal is

    DISMISSED.

    Judges BRYANT and DILLON concur.

    Report per Rule 30(e).
