Coley v. Its Thundertime LLC,
2016 NCBC 53.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 16 CVS 3019
KIMBERLI M. COLEY, )
Plaintiff, )
)
v. ) OPINION AND ORDER
)
ITS THUNDERTIME LLC, RANDY P. )
COLEY, and DIRECTV LLC, )
Defendants. )
THIS CAUSE, designated a mandatory complex business case by Order of the Chief
Justice of the North Carolina Supreme Court, pursuant to N.C. Gen. Stat. § 7A-45.4(b)
(hereinafter, references to the North Carolina General Statutes will be to "G.S."), and
assigned to the undersigned Special Superior Court Judge for Complex Business Cases,
comes before the Court upon Defendant DIRECTV, LLC's ("DIRECTV") Motion to Dismiss
or Stay Plaintiff's Action and for an Award of Attorneys' Fees under G.S. § 6-21.5 ("Motion to
Dismiss"). On July 6, 2016, the Court held a hearing on the Motion to Dismiss.
THE COURT, after considering the Motion to Dismiss, the briefs in support of and in
opposition to the Motion to Dismiss, and other appropriate matters of record, concludes that
the Motion to Dismiss should be GRANTED, in part, for the reasons below.
Bryant Law Group, PC by Matthew P. Ceradini for Plaintiff Kimberli M. Coley.
Bryant & Ivie, PLLC by John Walter Bryant and Amber Ivie for Defendant Its
Thundertime, LLC.
Gordon & Rees, LP by Robert W. Shaw for Defendant Randy P. Coley.
Kilpatrick Townsend & Stockton, LLP by John M. Moye and Jeffrey H. Fisher for
Defendant DIRECTV, LLC.
McGuire, Judge.
INTRODUCTION
1. In this lawsuit, Plaintiff Kimberli Coley (“Kimberli” or “Plaintiff”) seeks a
declaration that she is a member in and 50% owner of Defendant Its Thundertime, LLC
(“Thundertime”). Kimberli alleges that her husband, Defendant Randy M. Coley (“Randy”),
is a member and the owner of the other 50% of Thundertime. Plaintiff brings this action
because Defendant DIRECTV, Inc. (“DIRECTV”) is pursuing a $2.39 million judgment
awarded against Randy in the federal lawsuit, Sky Cable, LLC, et al., v. Randy Coley, et al.,
Case No. 5:11-CV-00048 (W.D. Va.) (“Virginia Action”). Kimberli was a defendant in the
Virginia Action, but was dismissed from that case after she and Randy repeatedly stated
under oath that Kimberli had no ownership or involvement in Thundertime, and that Randy
was the sole owner of Thundertime. DIRECTV has filed a Motion for Supplemental
Proceeding in the Virginia Action seeking to reach assets held by Thundertime in satisfaction
of the judgment against Randy. In response to the motion, Randy is contending that DIRECTV
should not be allowed to reach Thundertime’s assets, in part, because they are jointly owned with
Kimberli. That motion was argued in November, 2015, and a decision from the federal court is
pending. In this lawsuit, DIRECTV has filed the Motion to Dismiss, contending that the Court
should decline to issue a declaratory judgment and dismiss this action because the issue of the
ownership of Thundertime is already pending before the federal court in the Motion for
Supplemental Proceeding. Alternatively, DIRECTV requests that the Court stay this lawsuit until
the federal court has ruled on the Motion for Supplemental Proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
2. Kimberli and Randy have been married since 1994.1 During their marriage
they acquired a number of pieces of real property in North Carolina, including rental
1 Complaint for Declaratory Judgment (“Compl.”) ¶ 7.
property. The Complaint alleges Kimberli and Randy formed Thundertime in April 2008, as
a Delaware limited liability company, and that each owned a 50% membership interest in
Thundertime. Attached to the Complaint is an operating agreement for Thundertime
allegedly executed on April 11, 2008, which provides that Kimberli and Randy each held a
50% membership interest in Thundertime.2
3. Shortly after the formation of Thundertime, Kimberli and Randy transferred
the ownership in the real property owned by them to Thundertime. Despite the allegation
that Kimberli already was a 50% member and owner3, the Complaint alleges Kimberli
“exchanged her property interest for a 50% Membership Interest in Thundertime.”4 The
rental properties contributed to Thundertime were managed by management companies, but
the Complaint alleges that Kimberli “was active in the acquisition, maintenance and record
keeping for the properties.”5
4. In October 2010, the Coley's “experienced marital discord” and their
relationship "became very strained."6 Subsequently, Randy "attempted to exert control over
Thundertime by fabricating a substitute operating agreement which named [Randy] as the
sole member" of Thundertime.7 The Complaint alleges that Randy created the new operating
agreement without Kimberli’s consent.
5. In June of 2011, Sky Cable, LLC ("Sky Cable") sued Kimberli, Randy, East
Coast Cable Vision, LLC ("East Coast Cable"), a business entity controlled by Randy, and
DIRECTV in the aforementioned Virginia Action. The Virginia Action was assigned to United
States District Court Judge Michael F. Urbanski. In the Virginia Action, Sky Cable alleged
2 Id. Exh. B.
3 Id. ¶ 10.
4 Id. ¶ 13.
5 Id. ¶ 14.
6 Compl. ¶ 15.
7 Id. ¶ 16.
that the defendants in that action were involved in the unauthorized publication of DIRECTV
satellite television programming. In the Virginia Action, DIRECTV also raised cross-claims
against Kimberli, Randy, and East Coast Cable.
6. Kimberli alleges that in the Virginia Action "discovery evidence in the form of
documents, depositions and testimony were given which called into question [Kimberli's]
Membership Interest in Thundertime."8 The evidence to which she refers are Kimberli’s and
Randy’s statements under oath that Kimberli had no ownership interest in Thundertime and
that Randy was the sole owner of Thundertime.9 For example, Kimberli was asked by
interrogatory to identify "any and all joint ventures, partnerships, or other business
enterprises which [she has] been engaged in or [has] had any interest in either solely or
jointly with others since June 1, 1999," and responded, "None."10 In November 2012, Kimberli
provided sworn responses to interrogatories that were served upon her by DIRECTV in the
Virginia Action. DIRECTV specifically asked Plaintiff to “identify [her] interests in ‘Its
Thundertime LLC.’” In her sworn response, Plaintiff stated: “None.”11 Finally, at a hearing
held before Judge Urbanski on December 20, 2012, Kimberli testified under oath as
follows:
Q: Are you familiar with a company called Its Thunder Time?
A: Yes, sir.
8 Id. ¶ 21. These various "documents, depositions and testimony" to which Kimberli refers were not
attached to the Complaint. They were, however, provided by DIRECTV in support of the Motion to
Dismiss. The Court concludes that this discovery has been sufficiently identified and relied upon in
the Complaint such that it can be considered in determining the Motion to Dismiss without converting
that motion to one for summary judgment. See Robertson v. Boyd, 88 N.C. App. 437, 441,
363 S.E.2d
672, 675 (1988) ("Because these documents were the subjects of some of plaintiffs' claims and plaintiffs
specifically referred to the documents in their complaint, they could properly be considered by the trial
court in ruling on a motion under Rule 12(b)(6).")
9 Moye Aff. (May 9, 2016), Exhs. D, E, F,G, and I.
10 Id. Exh. D.
11
Id. Exh. E.
Q: Do you have any ownership interest in it?
A: No sir.
THE COURT: What does Its Thunder Time do?
A: It’s a corporation.
THE COURT: What does it do?
A: I don’t know. 12
7. On July 11, 2013, Judge Urbanski granted Summary Judgment to DIRECTTV
against Randy and East Coast Cable. On January 23, 2014, Judge Urbanski entered a $2.39
million judgment against Randy and East Coast Cable.13 The Complaint alleges that
Kimberli "was not found to be at fault and was dismissed as [a] party with prejudice by
stipulation" from the Virginia Action.14
8. Following entry of the judgment in the Virginia action, DIRECTV began efforts
to collect from Randy and his business entities, but has been unsuccessful. Accordingly, on
September 11, 2015, DIRECTV filed a Motion for Supplemental Proceeding in the Virginia
Action seeking “reverse veil piercing” in an effort to reach assets held by Thundertime.
Randy has opposed the Motion for Supplemental Proceeding based, in part, on the claim that
Kimberli is a 50% owner of Thundertime, and has filed in the Virginia Action a number of
the same documents that are attached to the Complaint as support for Kimberli’s alleged
12 Id. Exh. I, p. 16:3-10.
13 Kimberli alleges that Randy and East Coast Cable were "found at fault by partial summary
judgment," but does not allege the amount of the judgment ultimately entered. That information was
provided by DIRECTV in support of the Motion to Dismiss, and is included herein simply for
background. This judgment was entered on DIRECTV's cross-claim against Randy and East Coast
Cable. See Moye Aff. (May 9, 2016), Exh. J.
14 Compl. ¶ 19.
ownership interest in Thundertime. On November 19, 2015, Judge Urbanski held a hearing
on the Motion for Supplemental Proceeding, and a decision on the motion is pending.15
9. On March 4, 2016, Plaintiff Kimberli filed her Complaint in this matter
asserting a single claim under the North Carolina Declaratory Judgment Act, G.S. § 1-253 et
seq. Kimberli seeks a declaration that she is a member of and holds "a 50% Member Interest"
in Thundertime. Kimberli alleges that DIRECTV, "through supplemental proceedings in the
[Virginia Action], has seized upon this situation to assert a claim for reverse veil piercing
against [Randy's] businesses, including Thundertime."16 Kimberli alleges that DIRECTV's
actions are based on "the erroneous assumption that [Randy] owns 100%" of Thundertime.17
Based on the actions taken by DIRECTV in the Virginia Action, Kimberli asserts that her
interest in Thundertime is "at risk of being unjustly and unfairly taken by [Randy] and
DIRECTV."18
10. On May 9, 2016, DIRECTV filed the Motion to Dismiss seeking dismissal of
this action in its entirety pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure ("Rule(s)"). In the Motion to Dismiss, DIRECTV asks this Court to dismiss the
Complaint pursuant to Rule 12(b)(6) or, alternatively, to stay this action pending the outcome
of the Virginia Action. Both arguments are primarily based on DIRECTV's contention that
the issues raised in Kimberli's Complaint are already pending before Judge Urbanski, and
that given the lengthy litigation history and the prior representations made in the Virginia
Action, it is the more appropriate forum for resolving the entire dispute between the parties,
as opposed to proceeding "piecemeal" in this action.
15 On November 23, 2015, DIRECTV filed a Supplemental Request for Appointment of Receiver to
pursue Randy’s assets, including Thundertime’s assets, in the event that the Motion for
Supplemental proceeding is granted.
16 Compl. ¶ 23.
17 Id.
18 Id. ¶ 24.
DISCUSSION
11. The Court, in deciding a Rule 12(b)(6) motion, treats the well-pleaded
allegations of the complaint as true and admitted. Sutton v. Duke, 277 N.C. 94, 98,
176 S.E.2d
161, 163 (1970). However, conclusions of law or unwarranted deductions of fact are not
deemed admitted.
Id. The facts and permissible inferences set forth in the complaint are to
be treated in a light most favorable to the nonmoving party. Ford v. Peaches Entm't Corp.,
83 N.C. App. 155, 156,
349 S.E.2d 82, 83 (1986). The Court should grant a Rule 12(b)(6)
motion when the complaint, on its face, reveals (a) that no law supports the plaintiff's claim,
(b) the absence of facts sufficient to form a viable claim, or (c) some fact which necessarily
defeats the plaintiff's claim. Jackson v. Bumgardner,
318 N.C. 172, 175,
347 S.E.2d 743, 745
(1986).
12. Under North Carolina law, a declaratory judgment is a statutory remedy that
grants a court the authority to "declare rights, status, and other legal relations," G.S. § 1-
253, when an "actual controversy," exists between parties to a lawsuit. Pine Knoll Shores v.
Carolina Water Serv., Inc., 128 N.C. App. 321, 321,
494 S.E.2d 618, 618 (1998). A court may
decline to enter a declaratory judgment or decree "where such judgment or decree, if rendered
or entered, would not terminate the uncertainty or controversy giving rise to the
proceeding . . . ." G.S. § 1-257. This discretionary authority is properly exercised "when (1)
the requested declaration will serve no useful purpose in clarifying or settling the legal
relations at issue; or (2) the requested declaration will not terminate or afford relief from the
uncertainty, insecurity, or controversy giving rise to the proceeding." Augur v. Augur,
356
N.C. 582, 588–89,
573 S.E.2d 125, 130 (2002). The Court of Appeals has summarized this
analysis as follows:
These two fundamental principles require, first of all, consideration of whether
the declaratory proceeding will settle the entire underlying controversy. The
declaratory remedy should not be invoked "to try a controversy by piecemeal,
or to try particular issues without settling the entire controversy." This is
especially so where a separate suit has been filed, or is likely to be filed, that
will more fully encompass the scope of the entire controversy. The interests of
judicial economy and efficiency weigh in favor of suits that will settle all of the
issues in the underlying controversy.
Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling Co., 141 N.C. App. 569, 578,
541 S.E.2d 157, 163 (2000) (citations omitted). In addition, a party “should not be permitted
to bring a declaratory suit involving overlapping issues in a different jurisdiction as a
strategic means of obtaining a more preferable forum.”
Id. at 579,
541 S.E.2d at 164. The
Court should consider the potential purposes for which the plaintiff filed the declaratory
action in light of the issues in the other suit.
Id. at 578–79,
541 S.E.2d at 164.
13. North Carolina courts have recognized that the discretionary authority
granted by G.S. § 1-257 can appropriately be exercised in considering a Rule 12(b)(6) motion.
Id. at 581, 541 S.E.2d at 165. When the record reveals the lack of a basis for declaratory relief,
a Rule 12(b)(6) motion may be granted against a declaratory judgment claim. Kirkman v.
Kirkman,
42 N.C. App. 173, 176,
256 S.E.2d 264, 266 (1979).
14. DIRECTV contends that this Court should decline to issue the requested
declaratory judgment because the issue of Plaintiff’s ownership interest in Thundertime
already has been, and is being, litigated in the Virginia Action, and because the requested
declaration will not terminate the ongoing controversy between Kimberli, Randy, and
DIRECTV. Plaintiff argues that DIRECTV’s interest in this action is “indirect” because a
declaration that Kimberli is a 50% owner of Thundertime will not prevent DIRECTV from
reaching Randy’s interests in Thundertime if it is successful in the Motion for Supplemental
Proceedings.19 Essentially, Plaintiff argues that allowing her to proceed with this lawsuit
will not result in “piecemeal” litigation of the issues.
19 Pl.’s Resp. to Mot. to Dismiss, pp. 11–12.
Plaintiff also argues that she has standing to pursue a
declaratory judgment claim in this Court despite DIRECTV’s position that she admitted she has no
15. After thorough consideration of the facts at bar, the Court concludes that
issuing the requested declaratory judgment would not fully resolve the "uncertainty or
controversy giving rise to the proceeding." Augur, 356 N.C. at 588-89,
573 S.E.2d at 130.
Here, the controversy giving rise to this proceeding deals with DIRECTV's attempts to reach
the assets of Thundertime to satisfy the judgment obtained in the Virginia Action.20 Plaintiff
expressly alleged that she seeks a declaratory judgment because DIRECTV’s attempts to
reach the assets held by Thundertime in the Virginia Action place her interest in
Thundertime "at risk of being unjustly and unfairly taken by [Randy] and DIRECTV.”21 As
Kimberli conceded in her Response to the Motion to Dismiss, determining Kimberli's interest
in Thundertime is only a small piece of resolving the greater controversy surrounding the
satisfaction of the judgment entered in the Virginia Action.22 For example, whether
DIRECTV can even reach Thundertime’s assets will depend on a determination by Judge
Urbanski as to whether a reverse veil-piercing theory can be applied to Randy and
Thundertime. That issue will not be resolved by the declaration Plaintiff seeks in this
lawsuit.
16. Equally significant, however, is that the question of whether Kimberli has an
interest in Thundertime has been placed squarely in front of the court in the Virginia Action.
That action has been pending for more than five years, and significant evidence regarding
Kimberli’s ownership and involvement in Thundertime has been presented, including what
now appears to be Kimberli’s and Randy’s complete about-face on the question. It is for Judge
ownership interest in Thundertime. Id. pp. 12–13. DIRECTV, however, has not challenged
Kimberli’s standing to bring this action, and the Court need not address this argument.
20 Compl. ¶¶ 18, 23.
21 Id. ¶ 24.
22 Pl.’s Resp. to Mot. to Dismiss, p. 20.
Urbanski, in the first instance, to determine the impact of Kimberli’s and Randy’s previous
sworn testimony given their new claims that Kimberli is a 50% owner of Thundertime.23
17. The same facts raise serious concerns regarding judicial economy and
efficiency. Our appellate courts have specifically noted that a declaratory proceeding should
not be invoked to try a controversy by piecemeal, or to resolve isolated issues without
resolving the broader controversy. See Coca-Cola Bottling, 141 N.C. App. at 578,
541 S.E.2d
at 163. "This is especially so where a separate suit has been filed . . . that will more fully
encompass the scope of the entire controversy."
Id. (citation omitted). The issues concerning
Kimberli's interest in Thundertime and the arguments raised by Randy and Kimberli in this
lawsuit have already been presented to and are currently pending before Judge Urbanski in
the Virginia Action.24 Plaintiff’s position in this lawsuit appears to be that her prior testimony
that she had no ownership interest in Thundertime can be reconciled with her current claim
of ownership because there may be two Thundertime entities. Judge Urbanski has been
involved with the controversy presented in this action since its inception, and therefore can
place the parties' evidence and arguments concerning Kimberli's interest in Thundertime
within the complete context of the dispute. The Court concludes that the Virginia Action is a
far more appropriate forum to determine whether, as DIRECTV argues here, Kimberli’s
claim in this lawsuit is actually inconsistent with her previous position in the Virginia Action.
18. Finally, allowing this lawsuit to proceed would require the parties to litigate
the question of Kimberli’s ownership in Thundertime simultaneously in this Court and the
Virginia Action. This is not only an inefficient use of the parties' and the courts' resources,
but raises concerns over the possibility of inconsistent outcomes in the actions. This too
23 As DIRECTV correctly notes, Kimberli and Thundertime have the right to move to intervene in
the Virginia Action to protect any interest they believe will be affected by DIRECTV's pursuit of its
judgment.
24 Moye Aff. (May 9, 2016) (attaching documents and filings in the Virginia Action).
weighs in favor of this Court’s decision to decline to issue a declaratory judgment in this
lawsuit.
19. For the foregoing reasons, the Court concludes, in its discretion, that the
Motion to Dismiss should be GRANTED, and this action should be DISMISSED.
20. In the Motion to Dismiss, DIRECTV also seeks an order awarding reasonable
attorneys' fees "incurred in defending against [Kimberli's] frivolous lawsuit," pursuant to
G.S. § 6-21.5. That section allows for an award of fees for a prevailing party "if the court finds
that there was a complete absence of a justiciable issue of either law or fact raised by the
losing party in any pleading." G.S. § 6-21.5. That section goes on to state that, while it may
provide some evidence of a lack of justiciable issue, the granting of a Rule 12(b)(6) motion is
not itself dispositive of the issue. If fees are awarded under this section, a court is required
to make findings of fact and conclusions of law in support of the award. Id.
21. The Court concludes that the Complaint presented justiciable issues of law and
fact such that an award of fees under G.S. § 6-21.5 is improper. DIRECTV does not contend,
nor could it based on the Court's reading of the Complaint, that Plaintiff has not sufficiently
alleged an existing controversy between the parties. Instead, DIRECTV has asked the Court,
pursuant to statutory authority unique to the Declaratory Judgment Act, to exercise its
discretion to dismiss this action pursuant to Rule 12(b)(6). The Court concludes that
DIRECTV is not entitled to its fees under G.S. § 6-21.5, and that this request should be
DENIED.
THEREFORE, IT IS ORDERED that Defendant DIRECTV, LLC's Motion to Dismiss
is GRANTED, in part, and Plaintiff Kimberli M. Coley's Complaint is DISMISSED. Except
as expressly GRANTED herein, the Motion to Dismiss is DENIED.
This the 15th day of July, 2016.
/s/ Gregory P. McGuire
Gregory P. McGuire
Special Superior Court Judge
for Complex Business Cases
