The Business Court dismissed on a Motion for Judgment on the Pleadings an unfair and deceptive practices claim stemming from a dispute between members of a limited liability company.
CDC, a minority member of the LLCs, argued that the member owning a 70% interest, Grimmer, had removed CDC as a manager and had made unnecessary capital calls in order to force CDC out of the LLC. CDC also alleged that it had been defamed by Grimmer, that Grimmer had taken steps to cause banks to freeze the accounts of the LLCs, favored his son on a contract with the LLCs, and caused an improper $100,000 payment to be made by the LLCs. CDC claimed these facts made out a claim under Chapter 75.
The Business Court held that the conduct involving removal and capital calls were "primarily matters of internal corporate governance that do not relate to the day-to-day business activities of the LLCs. Accordingly, these matters are not sufficiently ‘in or affecting commerce’ to sustain an UDTPA claim." Op. at 16.
A defamation claim met with dismissal because Judge Diaz found it had not been described with sufficient particularity, and the other claims were dismissed because they belonged to the LLCs, not to the members.
Claims seeking judicial dissolution of the LLCs survived. Judge Diaz found that Plaintiffs’ allegations of waste and mismanagement were insufficient because they "fail to allege any specific action or conduct on the part of Grimmer that constitutes waste or demonstrates the misapplication of the LLC’s assets." Op. at 11. He ruled, however, that allegations Grimmer was refusing to pay CDC for services provided, badmouthing CDC to vendors and banks, making capital calls, and refusing to provide information regarding the operation of the LLCs might make out a claim for dissolution. The Court held:
Applying an indulgent standard to Defendants’ pleading, these allegations relating to the deteriorating relationship between Grimmer and CDC are sufficient to allow Defendants to pursue their claim that liquidation is reasonably necessary to protect Defendants’ rights and interests in the LLCs.
Op. at 12.
The Court also held that CDC’s claim for breach of a construction contract could proceed even though CDC was not licensed as a general contractor. CDC’s contract called for some work that required a general contractor’s license, and some that didn’t. Judge Diaz held that:
Although the Court’s research has not disclosed any binding precedent on point, there is persuasive authority suggesting that the denial of contract remedies to unlicensed general contractors or construction managers should properly be restricted to circumstances where the contractor seeks compensation for work falling within the statutory definition of general contracting or construction management.
Op. at 13. The contract extended to matters for which a license wasn’t necessary, like selling lots in the development, hiring sales managers, developing budgets and implementing marketing plans.