IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-340

Filed: 3 March 2020

Cumberland County, No. 13 CVD 5523

MARIA HONTZAS POULOS, Plaintiff

v.

JOHN EMANUEL POULOS, AJ PROPERTIES OF FAYETTEVILLE, LLC, BEAR 

ONE INVESTMENTS, LLC, BEAR PLUS ONE, LLC, BEAR SIX INVESTMENTS, 

LLC, CUMBERLAND RESEARCH ASSOCIATES, LLC, FAYETTEVILLE 

ENDOSCOPY, LLC, FAYETTEVILLE GASTROENTEROLOGY ASSOCIATES, PA, 

ICARIAN PARTNERS, LLC, JBV RENTAL PROPERTY, LLC, JEEM, LLC, JEP 

INVESTMENTS, LLC, JZJ, LLC, KPC COMMERCIAL, LLC, LUMBERTON 

SQUARE II, LLC, MEEJ, LLC, MEEJ II, LLC, PK PROPERTIES OF 

FAYETTEVILLE, LLC, VILLAGE AMBULATORY SURGERY ASSOCIATES, INC., 

OCIE F. MURRAY, JR., as Trustee of the JOHN E. POULOS FAMILY TRUST, 

JOHN EMANUEL POULOS, as Trustee of the KOULA POULOS REVOCABLE 

TRUST, Defendants

Appeal by Defendants from Order entered 2 October 2018 by Judge A. 

Elizabeth Keever in Cumberland County District Court. Heard in the Court of 

Appeals 1 October 2019.

The Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr. and L. Lamar 

Armstrong, III, for plaintiff-appellee.

Player McLean, LLP, by Lonnie M. Player, Jr., for defendants-appellants AJ 

Properties of Fayetteville, LLC, Bear One Investments, LLC, Bear Plus One, 

LLC, Bear Six Investments, LLC, Cumberland Research Associates, LLC, 

Icarian Partners, LLC, JBV Rental Property, LLC, JEEM, LLC, JEP 

Investments, LLC, JZJ, LLC, KPC Commercial, LLC, Lumberton Square II, 

LLC, MEEJ, LLC, MEEJ II, LLC, PK Properties of Fayetteville, LLC, and John 

Emanuel Poulos, as Trustee of the Koula Poulos Revocable Trust.

Adams, Burge & Boughman, PLLC, by Harold Lee Boughman, Jr. and Vickie 

L. Burge, for defendant-appellant John Emanuel Poulos.
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Opinion of the Court

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Hamilton Stephens Steele + Martin, PLLC, by Kenneth B. Dantinne and Sarah 

J. Sawyer, for defendant-appellant Ocie F. Murray, Jr., as Trustee of the John 

E. Poulos Trust.

HAMPSON, Judge.

AJ Properties of Fayetteville, LLC, Bear One Investments, LLC, Bear Plus 

One, LLC, Bear Six Investments, LLC, Cumberland Research Associates, LLC, 

Icarian Partners, LLC (Icarian), JBV Rental Property, LLC, JEEM, LLC, JEP 

Investments, LLC, JZJ, LLC, KPC Commercial, LLC, Lumberton Square II, LLC, 

MEEJ, LLC, MEEJ II, LLC, PK Properties of Fayetteville, LLC (Corporate 

Defendants), John Emanuel Poulos, individually (Defendant Poulos) and as Trustee 

of the Koula Poulos Revocable Trust (KP Trust), and Ocie F. Murray, Jr., as Trustee 

of the John E. Poulos Trust (JEP Trust), (collectively, Defendants)1 appeal from an 

Order on Motions to Dismiss (Motion to Dismiss Order) denying in part Defendants’ 

Motions to Dismiss. We, however, determine the Motion to Dismiss Order from which

Defendants appeal is an interlocutory order that does not affect a substantial right of 

Defendants. Therefore, we dismiss this appeal.

Factual and Procedural Background

 

1 Defendants Fayetteville Endoscopy, LLC, Fayetteville Gastroenterology Associates, PA, and 

Village Ambulatory Surgery Associates, Inc. did not appeal the trial court’s Order and are not parties

to this appeal.
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Opinion of the Court

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Defendant Poulos and Maria Hontzas Poulos (Plaintiff) were married on 25 

January 1992. On 12 July 2013, Defendant Poulos and Plaintiff separated. On 15 

July 2013, Plaintiff filed her original Complaint (Complaint) in this action against 

Defendant Poulos in Cumberland County District Court (Divorce Case). Plaintiff’s 

Complaint alleged three claims—Post-Separation Support, Alimony, and Equitable 

Distribution. Thereafter, on 8 October 2014, they were granted a judgment of 

absolute divorce. 

On 11 February 2015, Plaintiff filed a separate lawsuit against Defendant 

Poulos, Icarian, MEEJ, LLC, JEP Investments, LLC, and the JEP Trust in 

Cumberland County Superior Court, which action was subsequently designated a 

mandatory complex business case and assigned to a special superior court judge for 

complex business cases in North Carolina Business Court (Business Court Case). In 

the Business Court Case, Plaintiff asserted claims for Fraud, Constructive Fraud, 

Breach of Fiduciary Duty, Fraudulent Transfers in violation of the North Carolina

Uniform Voidable Transactions Act (UVTA), Setting Aside the JEP Trust under the 

North Carolina Uniform Trust Code (UTC), and an Accounting. Plaintiff also alleged 

Defendant Poulos had engaged in a pre-divorce “fraudulent scheme” whereby 

Defendant Poulos, beginning in late 2010 or early 2011, “transferred, concealed, and 

siphoned away marital assets to prevent [Plaintiff] from receiving distribution of this 

property in the” Divorce Case by transferring marital assets to third-party LLCs. 
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Specifically, Plaintiff alleged Defendant Poulos transferred large portions of marital 

property from various Corporate Defendants to Icarian—an LLC in which Defendant 

Poulos was allegedly the sole interest owner—and in turn, Defendant Poulos caused 

Icarian to transfer a ninety-percent membership interest in Icarian to the JEP Trust. 

Plaintiff further contended these transfers breached the fiduciary duty Defendant 

Poulos owed her as his wife and constituted fraud. Therefore, Plaintiff requested the 

JEP Trust be voided and she be granted an accounting of the assets held by the JEP 

Trust. 

After extensive discovery in the Business Court Case, the Business Court 

granted partial summary judgment on 26 September 2016, dismissing Plaintiff’s 

claims for Constructive Fraud, Fraudulent Transfers under the UVTA under N.C. 

Gen. Stat. § 39-23.5(a), Breach of Fiduciary Duty in part, and Setting Aside the JEP 

Trust under the UTC and denying Defendants’ motions for summary judgment on 

Plaintiff’s remaining claims (Business Court Summary Judgment Order). 

Defendants subsequently filed a motion to clarify the Business Court 

Summary Judgment Order, and Plaintiff filed a motion for reconsideration. On 6 

June 2017, the Business Court entered its Order on Motion to Clarify, Motion for 

Reconsideration, and Motion to Revise Summary Judgment Order (Business Court 

Clarification Order). Relevant to the appeal sub judice, the Business Court 

Clarification Order identified four transfers at issue in the Business Court Case:
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[T]he MEEJ Transfers, the JEP Transfer, the Trust Transfer, and 

the Maria Transfer (collectively, the MEEJ Transfers, JEP 

Transfers, and Trust Transfer are referred to as the “Transfers”). 

The [Business Court Summary Judgment Order] defined the 

MEEJ Transfers as the real property deeded by MEEJ to Icarian 

on January 28, 2011 . . . and the JEP Transfer as the real property 

deeded by JEP to Icarian on January 28, 2011. . . . The [Business 

Court Summary Judgment Order] defined the Trust Transfer as 

the transfer of a 90% interest in Icarian into the [JEP Trust] on 

February 11, 2011. 

First, the Business Court clarified, “the claims remaining for trial against 

[Defendant] Poulos individually are Plaintiff’s claims for breach of fiduciary duty and 

fraud regarding the MEEJ Transfers and the JEP Transfer, and Plaintiff’s claims 

under [N.C. Gen. Stat.] § 39-23.4(a)(1) regarding the MEEJ Transfers, the JEP 

Transfer, and the Trust Transfer. The MEEJ Transfers do not include transfers of 

security investments or other funds to Icarian.” Second, the Business Court noted 

“issues of material fact existed regarding whether [Defendant] Poulos was the 100% 

owner of Icarian.” On 13 July 2017, Plaintiff voluntarily dismissed without prejudice 

all claims remaining in the Business Court Case. 

On 14 February 2018, Plaintiff filed an Amended Complaint (Amended 

Complaint) in the current action in Cumberland County District Court against 

Defendants.2 In her Amended Complaint, Plaintiff added additional facts pertaining 

to the fraudulent scheme she alleged in the Business Court Case but asserted the 

 

2 Pursuant to certain Joinder Orders, the trial court joined all remaining Corporate 

Defendants, JEP Trust, and KP Trust in this action as necessary parties. 
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Opinion of the Court

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same three claims as in her original Complaint—Post-Separation Support, Alimony, 

and Equitable Distribution. In addition, Plaintiff added a fourth “claim for relief” 

seeking a constructive trust. This fourth claim for relief alleged the following:

129. [Defendant] Poulos transferred legal title and ownership of 

[Plaintiff’s] and [Defendant] Poulos’ substantial marital 

property as stated above and summarized as follows:

a. [Defendant] Poulos transferred his membership 

interests in the Corporate Defendants into Icarian.

b. [Defendant] Poulos fraudulently induced [Plaintiff] to 

transfer her membership interests in the Corporate 

Defendants into Icarian.

c. On 11 February 2011, [Defendant] Poulos created the 

JEP Trust and purported to assign and transfer ninety 

percent (90%) membership interest in Icarian into the 

JEP Trust. 

d. [Defendant] Poulos transferred substantial marital 

property into Icarian, and thus the JEP Trust.

e. [Defendant] Poulos transferred substantial marital 

property into the KP Trust.

f. Other assignments and transfers of marital property to 

third parties and to himself as shown above and as 

otherwise proven at trial.

(collectively, “the Transfers”).

130. As a result of the Transfers, the KP Trust, the JEP Trust, 

and the Corporate Defendants hold legal title to property 

that was marital property before the Transfers (the 

Transferred Property).
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131. The Trust Defendants and the Corporate Defendants 

acquired legal title to the Transferred Property through 

[Defendant] Poulos’ fraud, breach of duty, or some other 

circumstance making it inequitable for the Trust Defendants 

and Corporate Defendants to retain title to the Transferred 

Property.

132. [Plaintiff] is entitled to imposition of a constructive trust 

placed on the Transferred Property. 

Accordingly, Plaintiff requested imposition of a constructive trust on the Transferred 

Property held by the Trust Defendants and Corporate Defendants. 

From 17 April to 23 April 2018, Defendants filed Motions to Dismiss alleging, 

inter alia, Plaintiff’s Amended Complaint was subject to dismissal because the 

doctrine of collateral estoppel barred Plaintiff’s claims. After a hearing on 

Defendants’ Motions to Dismiss, the trial court entered its Motion to Dismiss Order 

granting in part and denying in part Defendants’ Motions. In light of the Business 

Court Case, the trial court granted Defendants’ Motions “only as to the issues of 

whether the JEP Trust was validly created, and therefore whether the JEP Trust 

itself (not including any assets held in the JEP Trust) can be dissolved or in any way 

altered, through claims for breach of fiduciary duty, constructive fraud, or intentional 

fraud” based on the doctrine of collateral estoppel. Defendants timely filed Notices of 

Appeal from the trial court’s Motion to Dismiss Order. 

Appellate Jurisdiction
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We must first address whether we have jurisdiction to review the trial court’s 

Motion to Dismiss Order. As Defendants acknowledge, the trial court’s Motion to 

Dismiss Order is interlocutory. See Baker v. Lanier Marine Liquidators, Inc., 187 

N.C. App. 711, 717, 654 S.E.2d 41, 46 (2007) (“Denial of a motion to dismiss is 

interlocutory because it simply allows an action to proceed and will not seriously 

impair any right of defendants that cannot be corrected upon appeal from final 

judgment.” (citation and quotation marks omitted)). “Generally, there is no right of 

immediate appeal from interlocutory orders and judgments. However, immediate 

appeal of an interlocutory order is available where the order deprives the appellant 

of a substantial right which would be lost without immediate review.” Whitehurst 

Inv. Props., LLC v. NewBridge Bank, 237 N.C. App. 92, 95, 764 S.E.2d 487, 489 (2014) 

(citations and quotation marks omitted). 

Defendants argue the Motion to Dismiss Order affects two substantial rights. 

First, Defendants contend the Order is “immediately appealable based on its denial 

of the Defendants’ alternative requests for jury trial.” Second, Defendants assert the 

Order affects a substantial right where its Motions to Dismiss made “a colorable 

assertion that the [Plaintiff’s] claim is barred under the doctrine of collateral 

estoppel.” We address each argument in turn.

With respect to Defendants’ alleged right to a jury trial, our Court has 

explained a trial court’s denial of a defendant’s request for a jury trial may in certain 
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Opinion of the Court

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circumstances affect a substantial right, thereby rendering it immediately 

appealable. See, e.g., Dept. of Transportation v. Wolfe, 116 N.C. App. 655, 656, 449 

S.E.2d 11, 12 (1994) (citations omitted). However, our Supreme Court has long held 

no right to a jury trial exists in an equitable distribution action. See Kiser v. Kiser, 

325 N.C. 502, 511, 385 S.E.2d 487, 492 (1989). As for the issue of a right to a trial by 

jury on the question of a constructive trust in the context of an equitable distribution 

action, our Court has stated:

[T]he issue of constructive trust is not a cause of action which is 

to be severed from other actions, but rather is a request for 

equitable relief within the equitable distribution action itself. As 

such, all issues pertaining to the constructive trust are questions 

of fact arising in a proceeding for equitable distribution of marital 

assets, and thus, there is no constitutional right to trial by jury.

Sharp v. Sharp, 133 N.C. App. 125, 131, 514 S.E.2d 312, 316 (Timmons-Goodson, J., 

dissenting) (citation and quotation marks omitted), rev’d per curiam for the reasons 

stated in dissent, 351 N.C. 37-38, 519 S.E.2d 523 (1999). Thus, under Sharp,

Defendants are not deprived of a substantial right by the trial court’s denial of their 

alternative requests for a jury trial. See id.

Defendants next argue the trial court’s interlocutory Motion to Dismiss Order 

affects a substantial right where the Order “was based in part on [the trial court’s] 

rejection of the defense of collateral estoppel raised by each of the Defendants.” It is 

well established “the denial of a motion to dismiss a claim for relief affects a

substantial right when the motion to dismiss makes a colorable assertion that the 
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Opinion of the Court

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claim is barred under the doctrine of collateral estoppel.” Turner v. Hammocks Beach 

Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009). Nevertheless, we have also 

recognized “[i]ncantation of the [doctrine of collateral estoppel] does not, however, 

automatically entitle a party to an interlocutory appeal of an order rejecting [that 

defense].” Foster v. Crandell, 181 N.C. App. 152, 162, 638 S.E.2d 526, 534 (2007). 

Thus, we must determine whether, at this preliminary stage, Defendants have made 

a colorable argument that the doctrine applies in this context in order to allow us to 

exercise jurisdiction over this appeal.

“Under the collateral estoppel doctrine, parties and parties in privity with 

them are precluded from retrying fully litigated issues that were decided in any prior 

determination and were necessary to the prior determination.” Turner, 363 N.C. at 

558, 681 S.E.2d at 773 (alteration, citation, and quotation marks omitted). “The 

issues resolved in the prior action may be either factual issues or legal issues.” Doyle 

v. Doyle, 176 N.C. App. 547, 549, 626 S.E.2d 845, 848 (2006). The party alleging 

collateral estoppel must demonstrate

that the earlier suit resulted in a final judgment on the merits, 

that the issue in question was identical to an issue actually 

litigated and necessary to the judgment, and that both the party 

asserting collateral estoppel and the party against whom 

collateral estoppel is asserted were either parties to the earlier 

suit or were in privity with parties.

State ex rel. Tucker v. Frinzi, 344 N.C. 411, 414, 474 S.E.2d 127, 128-29 (1996) 

(emphasis added) (alteration, citation, and quotation marks omitted).
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For issues to be considered “identical” to ones “actually litigated and necessary” 

to a previous judgment:

(1) the issues must be the same as those involved in the prior 

action, (2) the issues must have been raised and actually litigated 

in the prior action, (3) the issues must have been material and 

relevant to the disposition of the prior action, and (4) the 

determination of the issues in the prior action must have been 

necessary and essential to the resulting judgment.

State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000) (citation omitted). “The 

burden is on the party asserting [collateral estoppel] to show with clarity and 

certainty what was determined by the prior judgment.” Miller Building Corp. v. 

NBBJ North Carolina, Inc., 129 N.C. App. 97, 100, 497 S.E.2d 433, 435 (1998) 

(citation and quotation marks omitted). 

Here, Defendants argue, “[i]n the Amended Complaint, Plaintiff contends that 

the Trust Defendants and Corporate Defendants acquired legal title to the 

Transferred Property, which Plaintiff alleges to be marital property or formerly 

marital property, through Defendant Poulos’ ‘fraud, breach of duty, or some other 

circumstance’ making it inequitable for the Trust Defendants and Corporate 

Defendants to retain title to the Transferred Property. These issues, concerning 

fraud, breach of fiduciary duty, constructive fraud, etc. were actually litigated in the 

prior action, and were necessary to the judgment.” Accordingly, Defendants contend 

collateral estoppel bars Plaintiff’s request for a constructive trust over the 
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Opinion of the Court

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Transferred Property. This contention, however, fails to appreciate the nature of 

Plaintiff’s equitable distribution claim and the issues necessary to its determination.

In the equitable distribution context, the trial court is required, inter alia, to 

classify, value, and distribute marital property. See N.C. Gen. Stat. § 50-20(a) (2019). 

Section 50-20 defines “marital property” as “all real and personal property acquired 

by either spouse or both spouses during the course of the marriage and before the 

date of separation of the parties, and presently owned[.]” Id. § 50-20(b)(1). “[B]oth 

legal and equitable interest in real and personal property are subject to distribution 

under section 50-20.” Upchurch v. Upchurch, 122 N.C. App. 172, 175, 468 S.E.2d 61, 

63 (1996) (citations omitted). Further, “an equitable interest in property can be 

established in several situations, namely . . . constructive trusts.” Id. (citation 

omitted). Regarding constructive trusts, Upchurch stated:

A constructive trust is a duty imposed by courts of equity to 

prevent the unjust enrichment of the holder of title to property 

which such holder acquired through fraud, breach of duty or some 

other circumstance making it inequitable for him to retain it. It 

is not necessary to show fraud in order to establish a constructive 

trust. Such a trust will arise by operation of law against one who 

in any way against equity and good conscience holds legal title to 

property which he should not. The burden is on the party wishing 

to establish a trust to show its existence by clear, strong and 

convincing evidence. The determination of whether a trust arises 

on the evidence requires application of legal principles and is 

therefore a conclusion of law.

Id. at 175-76, 468 S.E.2d at 63 (alterations, citations, and quotation marks omitted); 

see also Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 
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530, 723 S.E.2d 744, 752 (2012) (noting a trial court can impose a constructive trust 

even in the absence of a breach of fiduciary duty). 

Here, the Business Court resolved the following issues in favor of Defendants 

in the Business Court Case: (1) Plaintiff could not show a fiduciary duty existed 

between her and Defendant Poulos regarding the creation of the JEP Trust and the 

Trust Transfer because Plaintiff was not a party to the agreements or transactions 

creating the JEP Trust and the Trust Transfer; (2) regarding the Constructive-Fraud 

Claim, Plaintiff presented no evidence Defendant Poulos benefited himself at 

Plaintiff’s expense to support this claim because the types of benefits Plaintiff alleged 

were not the types of tangible benefits required under North Carolina caselaw; and 

(3) Plaintiff’s Fraud Claim based on the creation of the JEP Trust and the Trust 

Transfer also had to be dismissed because they did not involve an agreement or 

transaction between Plaintiff and Defendant Poulos. 

These issues, however, are not necessary to a determination of whether 

Plaintiff is entitled to a constructive trust in the current equitable distribution action. 

Our Court has recognized, “a trial court may impose a constructive trust, even in the 

absence of fraud or a breach of fiduciary duty, upon the showing of either (1) some 

other circumstance making it inequitable for the defendant to retain the funds 

against the claim of the beneficiary of the constructive trust, or (2) that the defendant 

acquired the funds in an unconscientious manner.” Houston v. Tillman, 234 N.C. 
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Opinion of the Court

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App. 691, 697, 760 S.E.2d 18, 21 (2014) (emphasis added) (citations omitted). 

Accordingly, the fact the Business Court Case found Plaintiff could not prove claims 

for fraud, breach of fiduciary duty, or constructive fraud in the creation of the JEP 

Trust or the Trust Transfers because Plaintiff was not a party to the agreements or 

transactions creating the JEP Trust and the Trust Transfer is irrelevant to the 

question of whether Plaintiff is entitled to a constructive trust over a portion of the

Transferred Property that constitutes marital or divisible property. See id. (citations 

omitted); Variety Wholesalers, Inc., 365 N.C. at 530, 723 S.E.2d at 752 (noting a 

breach of fiduciary duty is not required for imposition of a constructive trust);

Upchurch, 122 N.C. App. at 175, 468 S.E.2d at 61 (“It is not necessary to show fraud 

in order to establish a constructive trust.”); see also Weatherford v. Keenan, 128 N.C. 

App. 178, 178-80, 493 S.E.2d 812, 813-14 (1997) (upholding constructive trust in 

equitable distribution action even absent any mention of fraud, breach of fiduciary 

duty, or wrongdoing).

3 

As the trial court below correctly noted, the Business Court Case only 

determined the issues of whether the JEP Trust was validly created, answering in 

the affirmative, and thus whether the JEP Trust could be dissolved through claims 

of breach of fiduciary duty, constructive fraud, or intentional fraud, answering in the 

 

3 We note the Business Court expressly declined to address dismissal of a constructive-trust remedy 

regarding the “assets that may be determined to have been improperly transferred in the MEEJ and 

JEP transfers” because it did not believe this was the subject of Defendants’ Motion to Dismiss.
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Opinion of the Court

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negative. However, the resolution of these issues does not prevent Plaintiff from 

establishing a constructive trust over the assets held by this Trust because a 

constructive trust does not and cannot dissolve a trust and does not necessarily 

depend on proving breach of fiduciary duty, constructive fraud, or intentional fraud. 

See Houston, 234 N.C. App. at 697, 760 S.E.2d at 21 (citations omitted). Further, the 

fact the JEP Trust was validly created does not mean it is not marital or divisible 

property to which a constructive trust could attach. See Weatherford, 128 N.C. App. 

at 180, 493 S.E.2d at 814 (“In an action for equitable distribution, the trial court is 

entitled to create a constructive trust in order to . . . prevent the unjust enrichment 

of the holder of legal title to property.” (citations omitted)). Indeed, the Business 

Court Summary Judgment Order left open numerous issues that would be relevant 

to such a determination, such as whether Defendant Poulos “misrepresented or failed 

to disclose the purpose behind the MEEJ and JEP transfers, and did not inform her 

that he had created the Family Trust or made the Trust Transfer.” Thus, at this 

preliminary stage, Defendants have not shown the elements of collateral estoppel 

have been met.

Accordingly, because at this motion-to-dismiss stage Defendants have not 

shown collateral estoppel serves as a bar to Plaintiff’s remedy of a constructive trust, 

Defendants have failed to meet their burden of demonstrating that the trial court’s 

Motion to Dismiss Order “deprive[d] [Defendants] of a substantial right which would 
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Opinion of the Court

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be lost without immediate review.” Whitehurst Inv. Props., LLC, 237 N.C. App. at 95, 

764 S.E.2d at 489 (citations omitted). Therefore, we lack jurisdiction over this appeal.

Conclusion

Accordingly, for the foregoing reasons, we dismiss Defendants’ appeal.

DISMISSED.

Chief Judge McGEE and Judge COLLINS concur.