Wake County v. Hotels.com, L.P. ( 2014 )


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  •                             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.
    -2-
    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
    -3-
    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
    -4-
    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.
    -5-
    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).
    -6-
    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
    -7-
    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.
    -8-
    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 . . . .”
    -9-
    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
    -10-
    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).
    -11-
    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
    -12-
    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
    -13-
    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
    -14-
    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
    -15-
    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,
    -16-
    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
    -17-
    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
    -18-
    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
    -19-
    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),
    -20-
    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
    -21-
    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
    -22-
    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).
    -23-
    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
    -24-
    (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
    -25-
    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
    -26-
    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
    -27-
    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.
    -28-
    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
    -29-
    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
    -30-
    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
    -31-
    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
    -32-
    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,
    -33-
    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
    -34-
    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
    -35-
    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
    -36-
    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
    -37-
    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
    -38-
    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.