STEPHENS, Judge.

Factual and Procedural Background

Plaintiff CommScope Credit Union is a North Carolina chartered credit union which retained Defendant Butler & Burke, LLP, a certified public accountant firm, in 2001 to provide professional independent audit services. Defendant represented to Plaintiff that it had special expertise in providing auditing services to credit unions and other nonprofit entities. Defendant's engagement letters between 2001 and 2010 asserted that it would, inter alia,

Each year from 2001 to 2009, Plaintiff's general manager, Mark Honeycutt, failed to file with the Internal Revenue Service ("IRS") a Form 990, Return of Organization Exempt From Income Tax Returns1 ("the tax forms"). In the course of its audits, Defendant never requested copies of the tax forms, and, as a result, did not discover Plaintiff's failure to file them. In April 2010, the IRS notified Plaintiff of its filing deficiency and later informed Plaintiff that a penalty of $424,000 had been assessed against it. The penalty was subsequently reduced to $374,200.

On 8 November 2012, Plaintiff filed a complaint in Catawba County Superior Court against Defendant alleging claims for breach of contract, negligence, breach of fiduciary trust, and professional malpractice.2 On 28 January 2013, Defendant answered, asserting several affirmative defenses. Defendant filed a third-party complaint on 25 February 2013 against various individuals who had been directors, officers, and supervisory committee members of Plaintiff.3 That complaint included claims for contribution, indemnity, negligent misrepresentation, and fraud. The third-party defendants answered and asserted various affirmative defenses. Three of the third-party defendants moved to dismiss pursuant to Rule of Civil Procedure 12(b)(6). On 6 June 2013, Defendant moved to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) and 12(c). On 26 September 2013, the trial court granted Defendant's motion and dismissed the case. This action rendered the third-party defendants' motion to dismiss moot, and the trial court did not consider or rule on that motion. From the order granting Defendant's motion to dismiss, Plaintiff appeals.

Discussion

Plaintiff argues that the trial court erred in granting Defendant's motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) and on the pleadings pursuant to Rule 12(c). We agree.

I. Standards of review

Sharp v. CSX Transp., Inc., 160 N.C. App. 241, 243, 584 S.E.2d 888, 889 (2003) (citations and internal quotation marks omitted). "When the complaint states a valid claim but also discloses an unconditional affirmative defense which defeats the asserted claim, however, the motion will be granted and the action dismissed." Skinner v. E.F. Hutton & Co., 314 N.C. 267, 270, 333 S.E.2d 236, 238 (1985) (citation omitted).

"A motion for judgment on the pleadings [pursuant to Rule 12(c)] should not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." B. Kelley Enters., Inc. v. Vitacost.com, Inc., 211 N.C. App. 592, 593, 710 S.E.2d 334, 336 (2011) (citation and internal quotation marks omitted; emphasis added).

Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citations omitted). We review de novo a trial court's grant of a motion to dismiss under both Rule 12(b)(6) and 12(c). Id.; Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., ___ N.C.App. ___, ___, 752 S.E.2d 661, 663-64 (2013).

II. Breach of fiduciary duty

In its motion to dismiss, Defendant argued that Plaintiff had failed to allege facts or circumstances that, if true, would show the existence of a fiduciary duty Defendant owed to Plaintiff. "For a breach of fiduciary duty to exist, there must first be a fiduciary relationship between the parties." Harrold v. Dowd, 149 N.C. App. 777, 783, 561 S.E.2d 914, 919 (2002) (citation omitted). In this State, fiduciary relationships may arise as a matter of law because of the nature of the relationship, "such as attorney and client, broker and principal, executor or administrator and heir, legatee or devisee, factor and principal, guardian and ward, partners, principal and agent, trustee and cestui que trust." Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931). However, "[o]nly when one party figuratively holds all the cards all the financial power or technical information, for example have North Carolina courts found that the special circumstance of a fiduciary relationship has arisen." Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 347-48 (4th Cir. 1998) (internal quotation marks omitted). Thus, our courts have declined to find the existence of a fiduciary relationship between "mutually interdependent businesses," such as a distributor and a manufacturer, or a retailer and its main supplier. Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C. App. 663, 666, 391 S.E.2d 831, 833 (1990).

Even where a fiduciary relationship does not arise as a matter of law, such a relationship does exist

Harrold, 149 N.C.App. at 784, 561 S.E.2d at 919 (citations, internal quotation marks, and brackets omitted). For example, in Harrold, this Court concluded that no fiduciary relationship existed between a pair of optometrists and an accounting firm hired "to advise them on business opportunities, including mergers and acquisitions." Id. at 779, 561 S.E.2d at 917. However, the Court went on to contrast this situation with one in which the accountant defendants "had done accounting. and had prepared tax filings" such that they "obviously had acquired a special confidence in preparing tax documents for the trusts, corporations, and individual plaintiffs." Id. at 784, 561 S.E.2d at 919 (discussing Smith v. Underwood, 127 N.C. App. 1, 487 S.E.2d 807, disc. review denied, 347 N.C. 398, 494 S.E.2d 410 (1997)). Thus, while this Court in Harrold was correct in stating that no North Carolina case has held that an accounting firm and its clients are per se in a fiduciary relationship, that case did not concern accountants and their audit clients. That is, in Harrold, the accounting firm was not providing auditing or accounting services to its clients, but rather was acting as a consultant on mergers and acquisitions. Id. at 779, 561 S.E.2d at 917. In Smith, on the other hand, where the accountants were providing accounting and tax-related services, a fiduciary relationship did exist. 127 N.C.App. at 10, 487 S.E.2d at 813. We would observe that, in using its specially trained professionals to perform comprehensive audits for credit unions, accounting firms such as Defendant would appear "to hold all the ... technical information...." Broussard, 155 F.3d at 348. In our view, the relationship between Plaintiff and Defendant appears much more like that between "attorney and client, broker and principal," see Abbitt, 201 N.C. at 598, 160 S.E. at 906, than that between "mutually interdependent businesses," like distributors and manufacturers, or retailers and suppliers. See Tin Originals, Inc., 98 N.C.App. at 666, 391 S.E.2d at 833.

More importantly, even if the relationship between an accounting firm and its audit clients is not a fiduciary one as a matter of law, Plaintiff's complaint alleges that Defendant pledged to

In assuring Plaintiff that it had the expertise to review financial statements to identify "errors [and] fraud[,]" even by Plaintiff's own management and employees, Defendant sought and received "special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence." See Harrold, 149 N.C.App. at 784, 561 S.E.2d at 919. We conclude that, in the light most favorable to Plaintiff, the allegations of the complaint are sufficient to state a claim for breach of fiduciary duty. Accordingly, the trial court erred in dismissing Plaintiff's claim.

III. Plaintiff's remaining claims

As for Plaintiff's claims for breach of contract, negligence, and professional malpractice, Defendant moved to dismiss under the doctrines of (1) in pari delicto and (2) contributory negligence, as well as upon contentions that these claims are (3) barred by the explicit terms of Defendant's engagement letter. We are not persuaded.

A. In pari delicto

"The common law defense by which [Defendant] seek[s] to shield [itself] from liability in the Present case arises from the maxim in pari delicto potior est conditio possidentis [defendentis] or `in a case of equal or mutual fault the condition of the party in possession [or defending] is the better one.'" See Skinner, 314 N.C. at 270, 333 S.E.2d at 239 (citation and ellipsis omitted). "Our courts have long recognized the in pari delicto doctrine, which prevents the courts from redistributing losses among wrongdoers. The law generally forbids redress to one for an injury done him by another, if he himself first be in the wrong about the same matter whereof he complains." Whiteheart v. Waller, 199 N.C. App. 281, 285, 681 S.E.2d 419, 422 (2009) (citation and internal quotation marks omitted), disc. review denied, 363 N.C. 813, 693 S.E.2d 353 (2010). Our Supreme Court has observed "that the in pari delicto defense traditionally has been narrowly limited to situations in which the plaintiff was equally at fault with the defendant." Skinner, 314 N.C. at 272, 333 S.E.2d at 240 (emphasis in original); see also Cauble v. Trexler, 227 N.C. 307, 313, 42 S.E.2d 77, 81-82 (1947) (noting that where "the parties are to some extent involved in the illegality, — in some degree affected with the unlawful taint, — but are not in pari delicto, that is, both have not, with the same knowledge, willingness, and wrongful intent engaged in the transaction, or the undertakings of each are not equally blameworthy, — a court of equity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent") (citation and internal quotation marks omitted; emphasis added).

The courts of our State have not yet addressed the applicability of in pari delicto as a defense by accountants to the malpractice-related claims of their auditing clients, but, in Whiteheart, this Court considered the doctrine's applicability as a defense in legal malpractice cases. There, the plaintiff, who was in the business of billboard advertising,

199 N.C.App. at 282, 681 S.E.2d at 420. After Ms. Payne and another entity successfully sued the plaintiff and received judgments totaling over $700,000, the plaintiff sued Betty Waller and her law firm "for legal malpractice, seeking to recover damages sufficient to cover the judgments" against him. Id. at 283, 681 S.E.2d at 421. This Court noted that the successful tort cases against the plaintiff had "establish[ed] as a matter of law [the plaintiff's] intentional wrongdoing" in sending the letters. Id. at 284, 681 S.E.2d at 421 (emphasis added). This Court also cited the reasoning of other state courts in cases where the doctrine was applied to bar claims against attorneys when their clients had knowingly engaged in intentional wrongdoing:

Id. at 285, 681 S.E.2d at 422 (emphasis added). Noting with approval that "some courts have distinguished between wrongdoing that would be obvious to the plaintiff and legal matters so complex that a client could follow an attorney's advice, do wrong[,] and still maintain suit on the basis of not being equally at fault[,]" the panel in Whiteheart held that such fine distinctions were not necessary in that case because the plaintiff had engaged in intentional wrongdoing, to wit, knowingly lying in an affidavit filed in the courts of our State and knowingly spreading lies about Ms. Payne among the business community in an effort to harm her. Id. at 285-86, 681 S.E.2d at 422-23 (citation and internal quotation marks omitted).

Here, Defendant urges that the doctrine applies because the action of Honeycutt, Plaintiff's general manager, in failing to file the tax forms (1) may be imputed to Plaintiff and (2) was an equal and mutual wrong to any negligence, breach of contract, or malpractice in Defendant's auditing process and procedures. However, unlike in Whiteheart or the other cases cited supra, nothing in Plaintiff's complaint establishes that Honeycutt's failure to file the tax forms was an example of intentional wrongdoing, as opposed to negligence, or for that matter, that Honeycutt's alleged failure was not excusable conduct.4

Nor do the allegations in the complaint establish as a matter of law that Honeycutt's failure to file the tax forms may be imputed to Plaintiff.

Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 491, 340 S.E.2d 116, 121 (citation omitted), disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). In addition,

Sparks v. Union Trust Co. of Shelby, 256 N.C. 478, 482, 124 S.E.2d 365, 368 (1962) (citation and internal quotation marks omitted).

Here, the complaint certainly does not establish that Plaintiff expressly authorized Honeycutt's failure to file the tax forms nor that it ratified this omission after the fact. To the extent any inference is raised by the facts alleged in Plaintiff's complaint, it would be that Honeycutt's failure to file the tax forms did not further Plaintiff's business, and Honeycutt's conduct raises a clear presumption that he would not communicate the situation to Plaintiff. If Plaintiff was exempt from paying taxes by the filing of the tax forms and if the failure to file the forms has resulted in a nearly $400,000 penalty assessment, Honeycutt's conduct not only did not further Plaintiff's business, it actively harmed Plaintiff. In sum, at the present stage of the case, Defendant is not entitled to a dismissal of Plaintiff's breach of contract, malpractice, and negligence claims on the basis of in pari delicto.

B. Contributory negligence

Defendant also moved to dismiss based upon an argument that Plaintiff's claims were barred by its own contributory negligence, as imputed from Honeycutt's failure to file the tax forms and his lies and omissions to Defendant and others about Plaintiff's tax compliance.

Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967) (citations, internal quotation marks, and emphasis omitted). Contributory negligence will act as a complete defense to malpractice claims against accountants. See Bartlett v. Jacobs, 124 N.C. App. 521, 525, 477 S.E.2d 693, 696 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997). However, in considering the propriety of submission of the issue of contributory negligence to the jury, our Supreme Court has observed:

Jackson, 270 N.C. at 372, 154 S.E.2d at 471-72 (citation and internal quotation marks omitted; emphasis omitted).

Plaintiff cites Smith for the proposition that contributory negligence is inapplicable given the facts here. That case held that, "[i]n an action by a principal against an agent, the agent cannot impute his own negligence to the principal. Where the negligence of two agents concurs to cause injury to the principal, the agents cannot impute the negligence of the fellow agent to bar recovery." 127 N.C.App. at 14, 487 S.E.2d at 816 (citations omitted). Plaintiff fails to cite the next sentence in that opinion: "However, if either defendant is found to be an independent contractor, that defendant would not be barred from imputing the agent's negligence to [the] plaintiff." Id. (citation omitted). The allegations of Plaintiff's complaint, taken as true, establish prima facie that Defendant is an independent contractor. See Coastal Plains Utils., Inc. v. New Hanover Cnty., 166 N.C. App. 333, 345, 601 S.E.2d 915, 923 (2004) ("An independent contractor ... is one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work.") (citations and internal quotation marks omitted).

However, we agree with Plaintiff's assertion that the doctrine of contributory negligence is inapplicable here, albeit for a much simpler reason. As noted supra, nothing in the pleadings establishes either that Honeycutt's failure to file the tax returns was (1) negligent rather than intentional wrongdoing or excusable conduct or (2) imputed to Plaintiff as a matter of law. Further, Defendant's answer simply alleges that any harm to Plaintiff "was caused by [Plaintiff's] own negligence and not by any negligence of [D]efendant [which] is not a sufficient plea of contributory negligence." See Jackson, 270 N.C. at 372, 154 S.E.2d at 472.

C. Terms of the engagement letter

In its motion to dismiss, Defendant also argued that Plaintiff's claims were barred as attempts "to hold [D]efendant[] liable for matters which the parties expressly agreed [P]laintiff was responsible." We disagree.

Majestic Cinema Holdings, LLC v. High Point Cinema, LLC, 191 N.C. App. 163, 165-66, 662 S.E.2d 20, 22 (citations, internal quotation marks, brackets, and ellipsis omitted), disc. review denied, 362 N.C. 509, 668 S.E.2d 29 (2008).

The engagement letters sent by Defendant to Plaintiff each year used substantially identical language in describing Plaintiff's responsibilities:

However, as noted supra, in the same letters, Defendant explicitly took on the responsibility to

Thus, the plain language of the engagement letters appears to give the parties overlapping, if not conflicting, responsibilities for the very types of situations, actions, and omissions as lie at the heart of this case. This "writing leaves it uncertain as to what the agreement was" and when "the intention of the parties is unclear ..., interpretation of the contract is for the jury." See id. at 165, 662 S.E.2d at 22. Plaintiff and Defendant have made conflicting arguments about what various administrative code sections and standard auditing procedures require with respect to the duties of an auditor and its client, but, on the pleadings, and in the absence of expert testimony or any other evidence, we cannot evaluate their contentions.

In sum, Plaintiff has stated its claims sufficiently to withstand Defendant's motion to dismiss, Defendant has not established any affirmative defenses which would entitle it to dismissal, and Defendant has failed to "clearly establish[] that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." See B. Kelley Enters., Inc., 211 N.C.App. at 593, 710 S.E.2d at 336 (citation and internal quotation marks omitted). Accordingly, the trial court erred in granting Defendant's motion to dismiss, and the order so doing is

REVERSED.

Judges CALABRIA and ELMORE concur.