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 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.
We discuss the procedural history for the lawsuits initially brought by each 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, LLC
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 complaint.
In Buncombe County Superior Court on 1 February 2007, Buncombe County filed a declaratory judgment action against Hotels.com
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.
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.
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 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.
"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).
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 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
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 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, 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:
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 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
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 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 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), 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
Applying our holding that defendants are not "retailers" within the meaning of General Statutes, section 105-164.4(a)(3)
Plaintiffs next argue that the trial court erred in 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,
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 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.
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 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:
Copeland v. Regent Elec., Inc., 499 Fed. Appx. 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.
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).
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 claim in the form of a motion for summary judgment before Judge Murphy.
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:
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 WL 6595753], 2006 U.S. Dist. LEXIS 56369 (N.C. May 8, 2006)"; "Expedia, Inc. v. City of Columbus, [285 Ga. 684], 681 S.E.2d 122 (Ga. Sup.Ct.2009)"; and "City of Gallup v. Hotels.com, L.P., No.06-0549-JC [2007 WL 7212855], 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 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.
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).
In the complaints filed by Dare County, Mecklenburg County, 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
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.
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:
Following the assignment of Mecklenburg County's complaint to the business court and the consolidation of these actions, both 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).
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).
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
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 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.
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 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.
"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 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).
"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).
2009 N.C. Sess. Laws ch. 2010-31, § 31.6(a).
