It turns out there is something more difficult than the financing and development of a luxury retirement community, the long life of which spanned from its initial municipal approval in 2002, through the 2008 financial crisis, and included the 2018 bankruptcy of a key player.

Explaining it.

In Sears Farm, LLC v. Samaritan Hous. Found., Inc., 2024 NCBC 19, the Business Court took up the task of sorting out the complex web of transactions, agreements, and grievances that clutter the landscape of a complex real estate project. And then put up a white flag.

In the late 1990s, Bill Sears had the idea for a retirement community in Wake County, located on land that he bought from his family. Sears brought an advisor/attorney aboard who ultimately linked him up with defendant Samaritan Housing Foundation, Inc., a Georgia non-profit. Id. ¶¶ 4, 7 8-9. What followed, the Court surmised, was a years-long series of funding and development agreements and amendments, “regulatory hurdles,” refinancings, and a dizzying litany of agreement acronyms upon which even the parties could not agree.  “For purposes of clarity,” Judge Davis noted, “the parties are directed in all future filings to use the acronyms contained in this Opinion.” Id. ¶ 13.

But the real problem frustrating judicial resolution of a motion to dismiss plaintiff’s claims for breach of contract and the implied covenant of good faith and fair dealing was finding a common narrative thread among events capable of producing a document known as the 2A-R-PCFDA. For those scoring at home, that’s the Second Amendment to Restated Pre-Construction Funding and Development Agreement. As the Court noted (Id. ¶ 3):

“Neither the complaint nor the parties’ briefs are models of clarity regarding the numerous transactions at issue in this case and their effect upon one another.”

The Court undertook an “exhaustive and painstaking” review of the pleadings and their attachments, as well as the briefs, but “conclude[d] that there are simply too many moving parts in this case for Samaritan to be entitled to the relief it seeks in its Motion to Dismiss at this early stage of the litigation.” Id. ¶ 58. Samaritan had contended that documents attached to the pleadings filled in “any gaps left by the allegations in the Complaint.” But Judge Davis noted that “[g]aps do, in fact, remain, and the Court lacks the authority to fill in those gaps under the guise of ruling on the present Motion.” A fully developed summary judgment record, the Court concluded, will make “deciding the legal issues raised by the parties . . . considerably easier.” Id. ¶ 58.


Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP.