Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
CUMBERLAND COUNTY 16CVS000995-250
MASTER FILE
(related case 16CVS005904-250)
RANDAL MENSCER;
ERIC MENSCER; and TROY
MENSCER, Individually and
Derivatively on behalf of STAR
LEASING, INC., a North Carolina
Corporation,
Plaintiffs,
v.
PACIFIC ALLIANCE
ORDER AND OPINION
CORPORATION, a Utah Corporation;
ON PLAINTIFFS’ MOTION
STEVEN K. CLARK; REX
TO DISMISS APPEAL AND
WILHOITE; CORY PAYNE; BURKE
ALL CLAIMS ASSERTED BY
PERRETT; and MARQUETTE
CERTAIN DEFENDANTS
TRANSPORTATION FINANCE, LLC,
a Missouri Limited Liability
Company,
Defendants,
and
STAR LEASING, INC., a North
Carolina Corporation,
Nominal Defendant.
PACIFIC ALLIANCE
CORPORATION,
Plaintiff,
v.
STAR LEASING, INC.,
Defendant.
Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
1. Nine years ago, this Court entered an order that partly granted and partly
denied Plaintiffs Randal Menscer, Eric Menscer, and Troy Menscer’s motion for
partial summary judgment. Following that decision, Defendants Pacific Alliance
Corporation, Steven Clark, Rex Wilhoite, Cory Payne, and Burke Perrett filed a
notice of interlocutory appeal. That is as far as the appeal ever went. In late 2017,
Pacific Alliance filed for Chapter 11 bankruptcy, triggering a stay that lasted through
the end of the bankruptcy proceedings earlier this year. The question now is how to
move forward after such a long delay, given the existence of a nine-year-old appeal
that was never perfected and other, unadjudicated claims that remain in limbo.
2. The Menscers contend that Pacific Alliance, Clark, Wilhoite, Payne, and
Perrett have stopped participating in this matter and are no longer prosecuting their
appeal and any claims for relief. For that reason, the Menscers have moved to dismiss
the appeal under Rule 25(a) of the North Carolina Rules of Appellate Procedure and
to dismiss whatever claims may be pending under Rule 41(b) of the North Carolina
Rules of Civil Procedure. (See ECF No. 177.) As discussed below, the Court GRANTS
the motion.
Player McLean, LLP, by Lonnie M. Player, Jr., and Stevens Martin
Vaughn & Tadych, PLLC, by Michael J. Tadych, for Plaintiffs Randal
Menscer, Eric Menscer, and Troy Menscer.
McGuireWoods LLP, by Jodie Hermann Lawson, for Defendant
Marquette Transportation Finance, LLC.
Yarborough, Winters & Neville, P.A., by J. Thomas Neville, for
Defendant/Nominal Defendant Star Leasing, Inc.
Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
U.S. Department of Justice, Civil Division, Tax Litigation Branch, by
Stephen Ho, Matthew Fesak, and Elizabeth Pruitt, for Intervenor United
States of America.
No counsel appeared for Defendants Pacific Alliance Corporation, Steven
K. Clark, Rex Wilhoite, Cory Payne, or Burke Perrett.
Conrad, Chief Judge.
I.
FINDINGS OF FACT
3. This action comprises two consolidated cases that began in 2016. The
pleadings are somewhat hard to follow because of a realignment of the parties and a
round of partial repleading that occurred after the consolidation. For present
purposes, it will suffice to note that the Menscers asserted several claims—directly
and derivatively on behalf of Star Leasing, Inc.—against Pacific Alliance, Clark,
Wilhoite, Payne, and Perrett, among others. In addition, Pacific Alliance pursued an
action to enforce a foreign judgment that had been entered in its favor and against
Star Leasing. It does not appear that Clark, Wilhoite, Payne, and Perrett ever
asserted any claims for relief.
4. In June 2017, the Court granted in part the Menscers’ motion for partial
summary judgment. In the same order, the Court denied Pacific Alliance’s motion to
enforce the foreign judgment. See generally Menscer v. Pac. All. Corp., 2017 NCBC
LEXIS 53 (N.C. Super. Ct. June 16, 2017) (granting partial summary judgment on
the Menscers’ claim for declaratory judgment, denying summary judgment on the Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
Menscers’ claim for violation of N.C.G.S. § 55D-18, and denying Pacific Alliance’s
motion to enforce the foreign judgment).
5. Pacific Alliance, Clark, Wilhoite, Payne, and Perrett timely filed a notice of
appeal from that interlocutory decision. (See ECF No. 118.)
6. Although a Documentation of Transcription Arrangement form appears on
the docket, a transcript of the summary-judgment hearing was never completed. (See
Tadych Aff. ¶ 11, ECF No. 179; see also ECF No. 124.)
7. Nor did the appellants prepare a proposed record on appeal or file the record
on appeal with the Supreme Court. (See Tadych Aff. ¶¶ 12, 13.)
8. In September 2017, counsel for Pacific Alliance, Clark, Wilhoite, Payne, and
Perrett filed a motion to withdraw, which the Court granted on 13 October 2017. No
counsel has appeared on behalf of these parties since that time. (See ECF Nos. 129,
137.)
9. In October 2017, Pacific Alliance filed for Chapter 11 bankruptcy in Utah.
(See Tadych Aff. ¶ 15.)
10. In November 2017, this Court entered an order recognizing an automatic
stay of all matters relating to Pacific Alliance pending completion of the bankruptcy
proceedings. (See ECF No. 141.)
11. Clark, Wilhoite, Payne, and Perrett filed requests to expand the automatic
stay so as to apply to them, but it does not appear that the Court entered an order
granting or denying these requests. (See ECF Nos. 144–46, 149.)
Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
12. Clark and Wilhoite died in 2022 (a fact that was only recently disclosed to
the Court). (See Tadych Aff. ¶ 27.)
13. In January 2026, the bankruptcy court in Utah entered an order closing the
bankruptcy proceedings. (See Tadych Aff. Ex. C.)
14. In July 2026, the Court held a status conference to address how to resolve
the issues that remain pending following the bankruptcy. Notice of the conference
was properly given to all parties. Pacific Alliance, Payne, and Perrett did not appear
at the conference individually or through counsel, and no one appeared on behalf of
the estates of Clark or Wilhoit.
15. At no point before or after the bankruptcy proceedings did Pacific Alliance,
Clark, Wilhoite, Payne, and Perrett perfect their appeal. (See Tadych Aff. ¶¶ 11–13,
23.)
16. On 23 July 2026, the Menscers filed the present motion seeking to dismiss
the appeal and any and all claims that may have been asserted by Pacific Alliance,
Clark, Wilhoite, Payne, and Perrett. Defendants Star Leasing and Marquette
Transportation Finance, LLC informed the Menscers that they do not oppose the
motion. No other party responded to the Menscers’ communications and attempts to
confer regarding the motion and the requested relief. (See Tadych Aff. ¶¶ 26–28.)
17. The time to respond to the motion has passed, and no responsive briefs were
filed. The motion will therefore “be considered and decided as an uncontested
motion.” BCR 7.6. The Court elects to decide the motion without a hearing. See BCR Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
7.4 (“The Court may rule on a motion without a hearing.”).
II.
CONCLUSIONS OF LAW
18. The Court first addresses the request to dismiss the pending appeal before
turning to the request to dismiss claims for failure to prosecute.
A. Motion to Dismiss Appeal
19. Although Pacific Alliance, Clark, Wilhoite, Payne, and Perrett filed their
notice of appeal almost a decade ago, the appeal has never been docketed with the
Supreme Court of North Carolina. As a result, this Court retains jurisdiction to
decide the motion to dismiss the appeal, including determining whether the appeal
has been abandoned. See Whitfield v. Todd, 116 N.C. App. 335, 337 (1994) (discussing
trial court’s authority to dismiss “abandoned” appeals under N.C. R. App. P. 25(a));
see also, e.g., L. Off. of Ashley-Nicole Russell, P.A. v. McLawhorn Legal Servs. PLLC,
2026 NCBC LEXIS 101, at *3–5 (N.C. Super. Ct. Apr. 29, 2026) (dismissing notice of
appeal); Carter v. Clements Walker PLLC, 2014 NCBC LEXIS 12, at *10, 18–19 (N.C.
Super. Ct. Apr. 30, 2014) (same).
20. There is no need to belabor the issue: the appellants have abandoned their
appeal. At no point before or after the conclusion of Pacific Alliance’s bankruptcy did
the appellants obtain a transcript of the summary-judgment hearing, serve a
proposed record on appeal, or file the record on appeal, as required by governing rules.
See N.C. R. App. P. 7, 9, 11. They are not currently taking any steps to cure these
defects. Nor have they filed anything in opposition to the motion to dismiss or Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
otherwise participated in the litigation since the end of the bankruptcy proceedings
in January 2026.
21. Even if the appellants wished to pursue their appeal, it is doubtful whether
they could do so. Clark and Wilhoite are deceased. Payne and Perrett have not
retained new counsel and have stopped responding to communications from the
Menscers and notices from the Court. Likewise, Pacific Alliance has not retained new
counsel and may not represent itself in this litigation. See LexisNexis, Div. of Reed
Elsevier, Inc. v. TRaviSHan Corp., 155 N.C. App. 205, 209 (2002) (holding that a
corporation “must be represented by a duly admitted and licensed attorney-at-law”).
22. For all these reasons, the Court concludes that Pacific Alliance, Clark,
Wilhoite, Payne, and Perrett failed to perfect their appeal and have since abandoned
the appeal. The Court therefore grants the Menscers’ motion to dismiss the appeal.
B. Motion to Dismiss Claims for Failure to Prosecute
23. A party “may move for dismissal of an action or of any claim therein against
him” due to the claimant’s “failure . . . to prosecute.” N.C. R. Civ. P. 41(b). In deciding
whether to dismiss claims for failure to prosecute, the Court must address whether
the claimant “acted in a manner which deliberately or unreasonably delayed the
matter”; “the amount of prejudice, if any, to the” moving party; and “the reason, if one
exists, that sanctions short of dismissal would not suffice.” Greenshields, Inc. v.
Travelers Prop. Cas. Co. of Am., 245 N.C. App. 25, 33 (2016) (citation and quotation
marks omitted).
Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
24. The only matter that appears to be at issue is Pacific Alliance’s action to
enforce a foreign judgment against Star Leasing. (See ECF No. 70.) As best the Court
can tell, no claims for relief have ever been asserted by Clark, Wilhoite, Payne, and
Perrett.
25. The Court concludes that Pacific Alliance has unreasonably delayed the
litigation of its action to enforce the foreign judgment because it has ceased to
participate in the litigation in any way. As noted, Pacific Alliance abandoned its
appeal, failed to respond to the pending motion to dismiss, is no longer responding to
communications from other parties and the Court, and did not appear at a properly
noticed conference in July 2026. Furthermore, Pacific Alliance has not retained
counsel and is not permitted to represent itself in this litigation. This “goes beyond
a ‘mere passage of time’ and constitutes an unreasonable delay,” amounting to an
abandonment of the action. Brunner v. Lodge on Lake Lure, LLC, 2016 NCBC LEXIS
86, at *7 (N.C. Super. Ct. Nov. 3, 2016) (“Brunner’s abandonment of his claims in this
case and the other Related Cases deliberately and unreasonably delays the final
adjudication of this action.”).
26. In addition, the Court concludes that Pacific Alliance’s lack of participation
has caused unfair prejudice to the Menscers by unnecessarily delaying the final
resolution of this litigation. The Court has considered lesser sanctions but concludes
that they would be insufficient. Any attempt to compel participation by Pacific
Alliance would be ineffective for the reasons discussed, doing little more than Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
prolonging matters and forcing the Menscers to continue litigating abandoned claims
against absent, unresponsive parties. See, e.g., Cowen v. McLawhorn, 208 N.C. App.
492, 498–505 (2010) (affirming dismissal for failure to prosecute, noting that
“wholesale failure to prosecute can constitute a delaying tactic”); Greenshields, 245
N.C. App. at 33–34 (affirming dismissal for dilatory tactics); Badillo v. Cunningham,
177 N.C. App. 732, 735 (2006) (holding that a court need not explicitly reject every
lesser sanction before dismissing). In an abundance of caution, and to ensure that
there is no undue prejudice, the Court will dismiss the action without prejudice.
27. The Court therefore grants the motion to dismiss for failure to prosecute.
III.
CONCLUSION
28. For all these reasons, the Court GRANTS the motion; DISMISSES the
appeal by Pacific Alliance, Clark, Wilhoite, Payne, and Perrett; and DISMISSES
without prejudice Pacific Alliance’s action to enforce a foreign judgment.
29. The Court ORDERS the parties to jointly tender a status report no later
than 14 September 2026 detailing the matters that remain for judicial resolution and
proposing appropriate steps to conclude this case efficiently.
30. Finally, to the extent that Clark, Wilhoite, Payne, and Perrett’s requests to
expand the automatic bankruptcy stay were never decided, the Court now DENIES
them as moot. (ECF Nos. 144, 145, 146, 149.)
Menscer v. Pac. Alliance Corp., 2026 NCBC 75.
SO ORDERED, this the 31st day of August, 2026.
/s/ Adam M. Conrad
Adam M. Conrad
Chief Business Court Judge