# GARDINER v. KOCHER

> District Court, M.D. North Carolina · December 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10653677

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** December 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WILLIAM GARDINER, . )
Plaintiff, .
v. 1:21CV971
KAREN KOCHER,
Defendant.
ORDER, MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff William Gardiner moves for leave to amend the Complaint and to amend the
scheduling order, if necessary. (Docket Entry 19.) Also before the Court is Defendant Karen
Kochet’s motion to compel Plaintiff to respond to discovery requests served upon him.
(Docket Entty 27.) Both matters are opposed (see Docket Entries 22, 29) and are ripe for
disposition. For the following reasons, the undersigned recommends that Plaintiffs motion _
be granted. Further, the Court will deny Defendant’s motion to compel.
I. BACKGROUND
Plaintiffs original Complaint raises eight causes of action against Defendant, including
claims for breach of contract, quasi-contract and unjust enrichment, implied-in-fact contract,
consttuctive trust, and purchase money resulting trust. (See Compl., Docket Entry 1.) These
claims arise after the termination of Plaintiff and Defendant’s romantic relationship, upon
which Plaintiff demands the return or repayment of funds he claims to have advanced for the
benefit of Defendant for (1) the purchase of a membership interest in Performitiv, LLC, a
privately-held company that Plaintiff and Defendant invested in and which Defendant still □

owns; and (2) the purchase of a home in Pinehurst, North Carolina (the “Pinehurst Home”),
which Defendant received sole legal title to and currently resides in. (See zd.) In response to
the original Complaint, Defendant asserted several defenses, including the doctrine of unclean
hands, and assetted four counterclaims against Plaintiff including claims for breach of
conttact, quasi-conttact/unjust enrichment, and implied-in-fact contract for the Pinehurst
Home, and unjust enrichment for a condominium which Plaintiff purchased in Seattle,
Washington (“Seattle Condominium”) although Defendant expected that the patties would
share in the appreciation of the property. (See Docket Entry 8.) In his reply to Defendant’s
counterclaims, Plaintiff asserted several affirmative defenses. (Docket Entry 9.) Discovery
commenced in this action in April 2022 with a deadline of June 1, 2022, for the patties to seek
leave to join additional patties. ‘(See Docket Entries 13, 14.) Plaintiff filed the pending motion
for leave to amend the Complaint and scheduling order on July 27, 2022. (Docket Entry 19.)
Then on September 27, 2022, Defendant filed the pending motion to compel. (Docket Entry
27.)
II. DISCUSSION
A. Plaintiffs Motion for Leave to Amend the Complaint and Scheduling Order
In Plaintiffs motion, he seeks leave to amend his Complaint “to add [Defendant’s]
capacity as ttustee to afford complete relief on Plaintiffs claims for imposition of an equitable
trust on the [Pinehurst] home” (Docket Entry 20 at 2),! which Defendant conveyed to herself
“as trustee of the Karen Kochet Revocable Trust dated Feb: 17, 2021” (2d; see also Proposed

' Unless otherwise noted, all citations in this order and recommendation to documents filed
with the Court refer to the page numbers located at the bottom right-hand cornet of the documents
as they appeat on CM/ECF.

First Am. Complaint, Docket Entry 19-2). While Plaintiffs original Complaint seeks recovery
of the funds he advanced to Defendant, Plaintiffs Complaint also seeks alternative relief
through the imposition of a purchase money resulting trust or a constructive trust on the
Pinehurst Home. (See Compl. ff] 49-57.) Therefore, Plaintiff argues that including
Defendant’s capacity as trustee is necessaty to afford complete relief. (Docket Entey 20 at 2.)
Plaintiff also contends that an amendment of the scheduling order is not necessary but
argues that, to the extent that his motion is considered as a motion to join a new party, “the
Court should amend the scheduling order in the interests of justice, to afford complete relief
and to eliminate the need for an additional action against [Defendant] in her capacity as
trustee.” (See Docket Entry 20 at 3.) Plaintiff claims that the amendment does not require
any additional discovery, nor will it cause prejudice to Defendant. (Id. at 9.) Defendant
opposes Plaintiffs motion, arguing the proposed amended complaint “serves no meaningful
putpose,” and that the additional time and expense associated with amending the Complaint
would be prejudicial to her. (See Docket Entry 22.) Specifically, Defendant claims that
amending the Complaint would result in new and costly issues concerning the trust’s
beneficiaries including “whether the trust’s beneficiaries must be joined as necessaty parties
under Rule 19” and whether the added beneficiary parties would raise jurisdictional concerns,
as “the trust at issue has seven primary beneficiaries that reside in different states.” (Id. at 4-
5.) In addition, Defendant argues that the motion should be denied because Plaintiff already
has an adequate remedy at law: monetary relief. (/d. at 6-7.)
When deciding on a motion to amend, the Court engages in a Federal Rule of Civil
Procedute 15(a) analysis, which provides that leave to amend should be “freely given when

justice so requires.” Franks v. Ross, 313 F.3d 184, 192 4th Cir. 2002) (quoting Fed. R. Civ. P.
15(a)). While the Fourth Circuit liberally allows amendments, “a court may deny leave to
amend if amendment is prejudicial to the opposing patty, the moving party has acted in bad
faith, ot amendment would be futile.” Sciacca v. Durham Cnty. Bd. of Educ., 509 F. Supp. 3d 505,
515 (M.D.N.C. 2020) (citing Abdul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 293 (4th
Cir. 2018).
Here, the undersigned concludes that the amendment should be allowed. The
amendment adds Defendant’s capacity as trustee to the trust in which the Pinehurst Home

was ttansferred to. This adds no new claims but relates to claims for the imposition of a
resulting trust and constructive trust already in the original Complaint. Defendant’s argument
against the proposed amendment focuses on the prejudicial effect it would have on her.
(Docket Entry 22.) However, this argument is unpersuasive. First, the proposed amendment
would not implicate the trust’s beneficiaries. Defendant points to the general rule under North
Carolina law that all beneficiaties are necessaty patties in “suits, respecting the trust property,
brought either by or against the trustees.” Dwnn v. Cook, 204 N.C. App. 332, 337, 693 S.E.2d
752, 756 (2010) (citation omitted). However, the relevant challenge here to the Pinehurst
Home involves Plaintiff as a third-party to the trust property. In S/aughter v. Swicegood, the
Notth Catolina Court of Appeals summarized the general rule in regard to disputes with third
patties:
The trustee has a title (generally legal title) to the trust property,
usually has its possession and a right to continue in possession,
and almost always has all the powers of management and control
which ate necessaty to make the trust property productive and
safe. Any wrongful interference with these interests of the normal
trustee is therefore a wrong to the trustee and gives him a cause
4 □

of action for redress or to prevent a continuance of the improper
conduct. Although the beneficiary is adversely affected by such
acts of a third person, no cause of action inures to him on that
account. The tight to sue in the ordinary case vests in the trustee
as a representative.

In the absence of special circumstances, the beneficiary is not
eligible to bring or enforce these causes of action which run to
his trustee. Thus in the usual case he cannot sue a third person to
tecovet possession of the trust property for himself or the
trustee, or for damages for conversion of or injury to the trust
property, or for recovery of its income or to compel an agent of
the trustee to account, or to enjoin a threatened injury to trust
ptoperty by a third person.
162 N.C. App. 457, 464, 591 S.E.2d 577, 582 (2004) (citation omitted). See a/so Restatement
(Second) of Trusts § 280 (“In an action at law brought by the trustee against a third person,
the beneficiary is not a necessaty or proper patty. In a suit in equity brought by the trustee
against a third person, the beneficiary is ordinarily not a necessary party although he is a proper
patty.”).
This Court recently cited Swicegood stating that, absent exceptions, the general rule is
that the trustee is the necessary patty for redressing claims regarding injury to a trust property.
See Fraim v. Chilly Dil Consulting, Inc, No. 1:20CV1011, 2022 WL 2916863, at *12 (M.D.N.C.
July 25, 2022) (unpublished) (citing Swicegood, 162 N.C. App. at 465, 591 S.E.2d at 582-83
(“Under the general common law tule, injury to the property:placed in a trust may only be
redtessed by the trustee.”), report and recommendation adopted, No. 1:20-CV-1011, 2022 WL
3572848 (M.D.N.C. Aug. 19, 2022) (unpublished). Another jurisdiction citing Swicegood, also
applied the same rule. See Rudd v. Branch Banking e& Tr. Co., No. 2:13-CV-02016-JEO, 2016
WL 7177538, at *8 (N.D. Ala. Aug. 8, 2016) (unpublished) (applying Alabama law and holding

that “[t]he court agrees with [the defendant] that the Amended Complaint is due to be
dismissed to the extent that Plaintiffs assert claims in their individual capacities as beneficiaries
to recover for harm suffered by any of the four Goodwin Family Trusts, including for the lost
value of theit respective assets.”) (emphasis added).?
In the context of suits brought by third parties related to actions against a trust
property, some other jurisdictions have applied the same rule to the defense of such actions.
See ¢.g., United States v. Sullivan, No. 10 CR 821-1, 2016 WL 1626622, at *5 (N.D. Ill. Apr. 21,
2016) (unpublished) (“Courts have repeatedly held that in suits by third parties brought against
the trust property, where there is no conflict of interest between the trustee and the beneficiary,
a suit against the trustee is proper and the beneficiary is not a necessary patty.”) (citing George
G. Bogert et al., The Law of Trust and Trustees § 593 (2015) (“The earlier equity rule was that the
beneficiary was always a necessaty patty, but the present position of the courts is that the
ttustee may represent the beneficiaty in all actions relating to the trust, if rights of the
beneficiaty as against the trustee, or the rights of the beneficiaries among themselves, are not
brought into question.”); see also Sullivan v. Kodsi, 373 F. Supp. 2d 302, 310 (S.D.N.Y. 2005)
(“[T]he beneficiaries’ interest is sufficiently protected by the present trustee .. . who has been
named as a defendant in his representative capacity .. . and, who is not alleged to have any
interest which conflicts with those of the Trust’s beneficiaries.”). Defendant has not asserted

any conflict of interest between her and any beneficiaries. Moreover, allowing Defendant as
the trustee to defend against the instant action pertaining to the trust property is also consistent
with both the duties and discretionary powets of a trustee under the North Carolina Uniform

* The defendant in Rvdd was a previous institutional co-trustee.
□

Trust Code. See N.C. Gen. Stat. § 36C-8-811 (“A trustee shall take reasonable steps to enforce
claims of the trust and to defend claims against the trust.”);3 N.C. Gen. Stat. § 36C-8-816(14)
(a trustee may “[p]ay or contest any claim, compromise, adjust or otherwise settle a claim by
or against the trust, and release, in whole or in part, a claim belonging to the trust.”). Thus,
considering such, the undersigned concludes that the proposed amendment does not implicate
the beneficiaries of the trust at issue.*
Defendant also argues that amending the Complaint serves no meaningful purpose
because Plaintiff has an adequate remedy at law. (Docket Entty 22 at 6-7.) This argument too
is unpersuasive. Interestingly, the claims for a constructive trust and resulting trust are already
alleged in the original Complaint and Defendant made no motion to dismiss them. As Plaintiff
states, the amendment seeks only to add Defendant’s capacity as the trustee of the trust
ptoperty that Plaintiff is alleged to have paid for in part. (See Proposed First Am. Compl.,
Docket Entry 19-2.) Beyond that, Defendant’s argument presumes that one cannot allege a
claim for both monetary relief and an alternative claim for a resulting or constructive trust.5
However, “[a]s a general matter, . . . an equitable claim can be alleged as an alternative to a
legal claim.” Ernst v. N. Am. Co. for Life Health Ins., 245 F. Supp. 3d 680, 687 (M.D.N.C.

> The North Carolina Supreme Court held that a duty to defend under N.C. Gen. Stat. § 36C-
8-811 “arises when the action may result in a loss to the trust estate.” IV 2ng ». Goldman Sachs Tr. Co.,
382 N.C. 288, 311-12, 876 S.E.2d 390, 406 (2022).
* For the same reasons, Defendant’s argument that the proposed amendment would “require
the parties to litigate additional issues” (Docket Entry 22 at 3) also fails.
> As Plaintiff points out, the North Carolina Court of Appeals was presented with a case which
alleged many similat claims as those here related to the Pinehurst Home. See Cury v. Mitchell, 202 N.C.
App. 558, 688 S.E.2d 825 (2010) (reversing dismissal of claims for constructive trust and resulting
trust); Curvy Complaint, Docket Entry 26-2 (asserting claims for constructive trust/unjust enrichment,
resulting trust, and breach of contract).
-

2017) (citation omitted). While “equitable remedies ate generally only available in the absence
of legal remedies,” zd. (citation omitted), and the creation of a constructive trust may be
unwarranted if remedies at law are sufficient, see Sec. Nat. Bank of Greensboro v. Educators Mut.
Life Ins. Co., 265 N.C. 86, 95, 143 S.E.2d 270, 276 (1965) (citation omitted) (“A constructive
trust does not atise where thete is no fiduciary relationship and there is an adequate remedy at
law.”’), Defendant has pointed to no case law where seeking monetary and equitable remedies
is improper when a patty had paid a portion of the purchase price for the teal property, but
had received neither an interest in the real property nor a refund of the money. □
Ultimately, “[w]hether monetary damages will provide a claimant an adequate remedy
at law depends upon the facts of the case and the injuty in question.” In re Se. Eye Cir.-Pending
Matters, No. 15 CVS 1648, 2019 WL 2051336, at *61 (N.C. Super. May 7, 2019) (unpublished)
(citation omitted). As in other instances, such determination here is most appropriately made
upon development of the record. See e.g, Alkemal Singapore Priv. Ltd. v. DEW Glob, Fin., LLC,
No. 15 CVS 1406, 2018 WL 1942174, at *18 (N.C. Super. Apr. 19, 2018) (after a bench trial
and finding that the plaintiff was entitled to compensatory damages for the defendant finance
company’ s breach of contract and conversion of funds, the North Carolina Business Court
concluded that “the creation of a constructive trust is unwarranted because Plaintiff's successful
contract claim provides an adequate remedy at law.”) (emphasis added); see also Brown v. Secor,
No. 16 CVS 608, 2020 WL 6696101, at *12 (N.C. Super. Nov. 13, 2020) (unpublished)
(“Depending on the circumstances, a plaintiff may be entitled to a constructive trust even
when money is the object and even when a juty awards damages .... If the facts show that an
adequate remedy at law exists, that may counsel against imposing a consttuctive trust... . This

decision is better made with a more complete record... .”). For these reasons, Defendant’s
arguments against allowing the amendment are unpersuasive. Thus, in the interests of justice,
Plaintiff's motion should be granted.° □
B. Defendant’s Motion to Compel
Defendant moves for an order compelling Plaintiff to respond to discovery requests
served upon him. (Docket Entry 27.) Specifically, Defendant seeks a response to Numbers
8, 11, and 17 of her First Set of Interrogatories and Number 5 of her First Set of Requests for
Production of Documents, narrowing the scope of her original requests. ([d.; see also Docket
Entry 28-5.) These discovery requests relate to PlaintifPs general finances (including
information about assets, gifts, loans, and investments) duting the five-year period at issue in
the Complaint. Defendant contends that such discovery is needed to establish facts that
support her unclean hands defense to Plaintiffs equitable claims and to support Defendant’s
counterclaims. (Docket Entry 28.) Plaintiff objects to the discovery requests on grounds that
the “broad, general, personal financial information” sought is “irrelevant to any patty’s claim
ot defense and thus outside the scope of discovery” and also “utterly disproportionate to the
needs of the case.” (Docket Entry 29 at 1.)
Federal Rule 26 provides general rules regarding the scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any patty’s claim or defense and proportional to the needs of the case,
° As to the issue of amending the scheduling order, Defendant states that “[t]he deadline to
add additional parties expired on June 1, 2022, further weighing in favor of denying the motion.”
(Docket Entry 22 at 3 n.1 (citation omitted).) For the reasons already discussed herein, the
undersigned concludes that there is good cause warranting leave to amend the scheduling order to
allow Plaintiff to add Defendant’s capacity as a trustee. See Vall Recycling, LLC v. 3TEK Glob., LLC,
No. 1:20CV371, 2022 WL 594290, at *2 (M.D.N.C. Feb. 28, 2022) (unpublished) (finding good cause
for an amendment where “there is no evidence that doing so would result in unfair prejudice to [the
non-movant]”).

considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the patties’
tesoutces, the importance of the discovery in resolving the issues, and whethet
the burden ot expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence
to be discoverable.
Fed. R. Civ. P. 26(b)(1). District courts generally have broad discretion in managing discovery,
including whether to grant or deny a motion to compel. Lone Star Steakhouse ¢» Saloon, Inc. v.
Alpha of Virginia, Ine, 43 F.3d 922, 929 (4th Cir. 1995); Erdmann v. Preferred Research, Inc. of
Georgia, 852 F.2d 788, 792 (4th Cir. 1988). “[T]he party or person resisting discovery, not the
patty moving to compel discovery, beats the burden of persuasion.” Carter Elughes v. Research
Triangle Inst., No. 1:11CV546, 2014 WL 4384078, at *2 (M.D.N.C. Sept. 3, 2014) (unpublished)
(citation omitted).
Relevancy “essentially involves a determination of how substantively the information
requested beats on the issues to be tried.” Mids v. East Gulf Coal Preparation Co., LILC, 259
F.R.D. 118, 131 (S.D. W. Va. 2009) (internal quotation marks omitted) (collecting cases).
Indeed, relevance has been “broadly construed to encompass any possibility that the
information sought may be relevant to the claim or defense of any party.” Shackdeford v. Vivint
Solar Dev. LLC, No. CV ELH-19-954, 2020 WL 3488913, at *5 (D. Md. June 25, 2020)
(internal quotation marks and citation omitted). However, “[e]ven assuming that □□□□□
information is relevant (in the broadest sense), the simple fact that requested information is
discovetable ... does not mean that discovery must be had. On its own initiative . .., a district
may limit [discovety] ....” Nicholas v. Wyndham Int'l, Inc, 373 F.3d 537, 543 (4th Cir.
2004).

10 .

Here, the undersigned concludes that the discovery requests are irrelevant to both
Defendant’s unclean hands defense to Plaintiffs equitable claims, and Defendant’s
counterclaims. As to the former, the doctrine of unclean hands “denies equitable relief only
to litigants who have acted in bad faith, or whose conduct has been dishonest, deceitful,
fraudulent, unfair, ot overreaching in regard to the transaction in controversy.” Collins v. Daus,
68 N.C. App. 588, 592, 315 S.E.2d 759, 762, aff'd, 312 N.C. 324, 321 S.E.2d 892 (1984).
Defendant’s unclean hands defense states that:
[Plaintiffs] claims in equity are barred, in whole or in part,
by the doctrine of unclean hands. The purchase price of the
Pinehurst house was $1.6 million—far more’ than [Defendant]
was willing to pay for a large, rural house requiring substantial
upkeep and maintenance. [Plaintiff] was aware that [Defendant]
did not want to be responsible for the purchase price or the cost
and upkeep of the Pinehurst house alone. Yet, [Plaintiff] was
insistent that [Defendant] purchase the Pinehurst house over her
objections. □
[Plaintiff] induced [Defendant] to purchase the Pinehurst
house by promising to pay two-thirds of the purchase price and
two-thirds of the costs and expenses of ownership. Despite
agteeing to pay two-thirds of the purchase price ($1.067MM),
[Plaintiff] paid less than a quarter of it ($300,000). As a result of
[Plaintiffs] breach, [Defendant] was forced to take on—and
maintain—a mortgage for substantially more than she had agreed
to pay.
(Docket Entry 8 at 9-10.)
In her counterclaims, Defendant alleges that Plaintiff agreed to pay for two-thirds of
the expenses of owning and maintaining the Pinehurst home. (See Docket Entry 8.)
Defendant contends that the financial information sought from Plaintiff is relevant and “will

11

assist in determining the truthfulness of [Plaintiffs] statements to [Defendant] that he did not
have the liquidity necessary to pay for his two-thirds portion of the house and intended to pay
her back as soon as possible[.]” (Docket Entry 28 at 5.) The motion before the Court is not
to determine the merits of either patties’ claims nor the legal sufficiency of Defendant’s
affirmative unclean hands defense, however considering the pleadings, see Parsons v. Jefferson-
Pilot Corp, 141 F.R.D. 408, 412 (M.D.N.C. 1992) (“‘[T]he basic touchstone is
always relevance to the subject matter [and] “[t]he ‘subject matter’ of the litigation is defined
by the pleadings of the patties.”), the broad range of Plaintiffs financial information (including
information on assets, gifts, loans and investments) which Defendant seeks is irrelevant to this
matter. Regarding the Pinehurst Home, this is a matter in which Plaintiff seeks either legal or
equitable relief for the funds advanced on the purchase of the property, while Defendant’s
counterclaims seek relief for two-thirds of the expenses that Plaintiff allegedly agreed to own
and maintain said home in exchange for Defendant’s agreement to purchase the property.
Fittingly, Plaintiff represents to the Court that some of his financial information related to
both the Pinehurst Home and the Seattle Condominium have been provided to Defendant
(see Docket Entry 29 at 3 (Plaintiff “has produced voluminous financial records, including
dozens of bank statements and credit catd statements ovet a six-yeat period, reflecting the
thousands of dollars he spent on the Seattle and Pinehurst residences[.]’”)).’ However while
Defendant suggests otherwise, neither her counterclaims nor her unclean hands defense open

’ Plaintiff has also provided information regarding real property owned and sold from January
2015 until July 2022. (See Docket Entry 28-3 at 9.)

12

the door to discovery of Plaintiff's general financial status. Therefore, Defendant’s motion is
denied
III. CONCLUSION
For the reasons discussed herein, IT IS HEREBY RECOMMENDED that
Plaintiffs Motion for Leave to Amend the Complaint and for Amendment of the Scheduling
Order, if Necessary (Docket Entry 19) be GRANTED and Plaintiff be allowed to file his
Amended Complaint.
IT IS HEREBY ORDERED that Defendant’s Motion to Compel (Docket Entry
27) be DENIED.

Qu (WNebato=
Joe L. Webster
United States Magistrate Judge
December 8, 2022
Durham, North Carolina

’ Defendant’s request for attorneys’ fees associated with bringing this motion is also denied.
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653677. Public record. Not legal advice.