Wake County v. Hotels.com, L.P.

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.

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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

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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

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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.

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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).

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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

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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.

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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 . . . .”

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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

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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).

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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

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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

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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

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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

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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,

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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

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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

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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

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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),

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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

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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

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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).

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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

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(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

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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

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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

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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.

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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.