WEAVER, BENNETT & BLAND, P.A. v. VILLMER, 2023 NCBC 49

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 20789
WEAVER, BENNETT & BLAND, P.A.,
Plaintiff and
Counterclaim Defendant,
v.
MATTHEW MCCURDY VILLMER;
BO BRANDON CAUDILL; AND
VILLMER CAUDILL, PLLC,
Defendants and
Counterclaim Plaintiffs,
v.
ERAN L. WEAVER; WILLIAM G.
WHITTAKER; AND MICHAEL
DAVID BLAND,
Counterclaim Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION TO
DISMISS
1. 	THIS MATTER is before the Court on Defendants’ Motion to Dismiss
Amended Complaint for Failure to State a Claim (the “Motion”) filed by Matthew
McCurdy Villmer, Bo Brandon Caudill, and Villmer Caudill, PLLC (collectively,
“Defendants”). (ECF No. 45.)
2. 	The 	Court, 	having 	considered the 	Motion, 	the 	briefs 	supporting 	and
opposing the Motion, the parties’ arguments at a hearing on 28 June 2023, and other
relevant matters of record, hereby GRANTS in part and DENIES in part the Motion.
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Andrew J. Howell
and R. Jason White, and Wilson Elser Moskowitz Edelman & Dicker,
LLP by Jeremy A. Stephenson, for Plaintiff Weaver, Bennett & Bland,
P.A.
Weaver, Bennett & Bland, P.A. v. Villmer, 2023 NCBC 49.

Rayburn Cooper & Durham, P.A., by Ross R. Fulton and Ashley B.
Oldfield, 	for 	Defendants 	Matthew 	McCurdy 	Villmer, 	Bo 	Brandon
Caudill, and Villmer Caudill, PLLC.
Wilson 	Elser 	Moskowitz 	Edelman 	& 	Dicker, 	LLP, 	by 	Jeremy 	A.
Stephenson, for Counterclaim Defendants Michael Bland, Eran Weaver,
and William Whitaker.
Pope, Aylward, Sweeney & Santaniello, LLP, by Andrew J. Santaniello,
for Counterclaim Defendant Eran Weaver.
Robinson, Judge.
I. 	INTRODUCTION
3. 	Defendants Matthew McCurdy Villmer and Bo Brandon Caudill are former
partners and officers of Plaintiff, the law firm of Weaver, Bennett & Bland, P.A.
(“WBB” or “Plaintiff”). 	In 2022 they left Plaintiff’s employ and formed a competing
law firm, taking several of Plaintiff’s attorneys and clients with them. Thereafter, a
dispute 	arose 	over 	how 	Plaintiff 	and 	Defendants 	would 	split 	fees 	in 	certain
contingent-fee cases worked on by both firms, and this action followed.
II. 	FACTUAL BACKGROUND
4. 	The Court does not make findings of fact in connection with the Motion, as
motions to dismiss do not address “the merits, but only whether the merits may be
reached.” Concrete Serv. Corp. v. Investors Grp., Inc., 79 N.C. App. 678, 681 (1986).
Instead, the Court recites only those facts included in the complaint relevant to the
Court’s determination of the motion.

A. 	The Parties
5. 	Plaintiff 	is 	a 	law 	firm 	organized 	as 	a 	North 	Carolina 	professional
corporation with its principal place of business in Mecklenburg County, North
Carolina. (Am. Compl. ¶ 1, ECF No. 43.)
6. 	Defendant Matthew McCurdy Villmer (“Villmer”) is a North Carolina
attorney and resident of Mecklenburg County, North Carolina. 	(Am. Compl. ¶ 2.)
WBB hired Villmer as an associate attorney on 1 September 2015, and Villmer
became an officer, director, and law partner with WBB on 1 September 2017. 	(Am.
Compl. ¶¶ 9–10.) 	Villmer was made a vice president of WBB on 1 September 2017
and was promoted to managing partner in June 2018. 	(Am. Compl. ¶¶ 9–10, 12.)
Villmer served as a director of WBB from 31 August 2017 through 20 January 2022.
(Am. Compl. ¶ 18.)
7. 	Defendant Bo Brandon Caudill (“Caudill” and with Villmer, the “Individual
Defendants”) is a North Carolina attorney and resident of Mecklenburg County,
North Carolina. (Am. Compl. ¶ 3.) Caudill was hired as an associate attorney with
WBB on 1 March 2017 and became an officer, director, and law partner with WBB on
1 January 2019. He was promoted to head of WBB’s litigation department on 1
January 2020. 	(Am. Compl. ¶¶ 11, 13–15.) 	Caudill served as a director and vice
president of WBB from 1 January 2020 until 20 January 2022. (Am. Compl. ¶¶ 17,
19.)
8. 	Defendant Villmer Caudill, PLLC (“VC, PLLC”) is a professional limited
liability company with its principal place of business in Mecklenburg County, North

Carolina. (Am. Compl. ¶ 4.) Articles of organization for VC, PLLC were executed on
17 December 2021, (Am. Compl. ¶¶ 73–74), and the public record indicates that they
were 	filed 	with 	the 	North 	Carolina 	Secretary 	of 	State 	on 	11 	January 	2022.
(See N.C. Sec’y State, Villmer Caudill, PLLC, https://www.sosnc.gov/online_services
/search/by_title/_Business_Registration (last visited July 24, 2023).)
B. 	The Plan to leave WBB
9. 	Following Caudill’s promotion to head of Plaintiff’s litigation department in
2020, Villmer and he began secretly planning to leave Plaintiff and start their own
law firm. 	(Am. Compl. ¶ 42.) 	From that point forward, WBB alleges that the
Individual Defendants began to manipulate the Plaintiff’s client distribution, the
management of the Plaintiff’s employees, and other aspects of Plaintiff’s business
affairs in order to move several of Plaintiff’s clients and employees to their own law
firm. (Am. Compl. ¶¶ 42–43.) The Individual Defendants planned to leave Plaintiff’s
employ on or about 3 January 2022. (Am. Compl. ¶ 67.)
10. 	During 2020 and 2021, several of Plaintiff’s lucrative cases were billed on a
contingent fee basis. (Am. Compl. ¶ 46–47.) Plaintiff alleges that Villmer, knowing
that he and Caudill intended to take these cases with them upon their departure from
WBB, delayed or postponed the settlement of several of these cases. 	He also
converted hourly clients into contingent fee clients, approved large advances of
Plaintiff’s funds for costs in litigated cases, and forgave certain fees incurred to curry
favor with target clients. (Am. Compl. ¶¶ 49–50, 68–69.)

11. 	The Individual Defendants planned to take with them three of Plaintiff’s
associate attorneys when they left WBB: Sophia Pappalardo (“Pappalardo”), Katelin
Taylor (“Taylor”), and Walton Walker (“Walker” and collectively the “Associates”).
(Am. Compl. ¶¶ 39, 40, 54, 55.) The Individual Defendants managed the Associates’
law 	practices 	so 	that 	the 	Associates 	were 	fully 	dependent 	on 	the 	Individual
Defendants for work and had essentially no clients of their own. (Am. Compl. ¶¶ 55–
57.) Before disclosing their departure to Plaintiff, the Individual Defendants shared
their departure plans with Attorneys Taylor and Pappalardo, (Am. Compl. ¶¶ 92–93),
who agreed to join VC, PLLC. (Am. Compl. ¶¶ 95–96.)
12. 	The Individual Defendants took other affirmative steps to establish the law
firm of VC, PLLC prior to executing articles of organization for their new firm on 17
December 	2021. 	(Compl. 	¶¶ 	73–74.) 	Throughout 	this 	time, 	the 	Individual
Defendants did not inform any of Plaintiff’s other officers or directors of their plans.
(Compl. ¶ 75.)
13. 	On 28 December 2021, the Individual Defendants, as officers of Plaintiff,
voted and approved the payment of bonuses from Plaintiff to themselves in the total
amount of $452,224.70. (Am. Compl. ¶ 223.)
C. 	Villmer and Caudill’s Departure
14. 	On 3 January 2022, the Individual Defendants met with Weaver at
Plaintiff’s offices and informed him that they were leaving Plaintiff’s employment
effective two weeks from that date. (Compl. ¶ 88.)

15. 	That same day, the Individual Defendants met with the Associates to
convince them to leave Plaintiff and join VC, PLLC. 	(Am. Compl. ¶ 54.) 	The
Individual Defendants told Attorneys Taylor and Pappalardo that Plaintiff would not
survive after the Individual Defendants’ departure and the Associates would be
putting their futures at risk by continuing to work for Plaintiff. (Am. Compl. ¶ 94.)
Attorneys Taylor and Pappalardo gave their two weeks’ notice to Plaintiff on 3
January 2022. 	(Am. Compl. ¶¶ 246–247.) 	Attorney Walker initially declined the
Individual Defendants’ offer of employment until the Individual Defendants met with
him on 15 January 2022 and told him he was putting his family at risk by staying
with Plaintiff. (Am. Compl. ¶ 250.)
16. 	On 9 January 2022, the Individual Defendants met with Plaintiff’s other
officers, directors, and shareholders to discuss their departure. (Am. Compl. ¶ 134.)
During the meeting, Plaintiff and the Individual Defendants agreed to split any
contingent fees earned on existing cases for clients that elected to move their work to
VC, PLLC. They agreed that the fee would be divided between the two firms based
on the percentage of time expended by each firm, with any expenses previously
advanced by Plaintiff reimbursed when the case was resolved. 	(Am. Compl. ¶ 136–
37.) 	As part of their agreement, Plaintiff agreed to refer all of the Plaintiff’s Power
Home Solar clients1 to Defendants. (Am. Compl. ¶ 138.)
1 A significant portion of WBB’s litigation practice involved suits initiated by WBB attorneys
on behalf of customers who purchased the installation of rooftop solar panels from Power
Home Solar. (Am. Compl. ¶¶ 144–45.)

17. 	Plaintiff’s internal policies required that attorney work product be stored
in the CLIO document management system. 	(Am. Compl. ¶ 127.) 	Prior to the
termination of his employment with Plaintiff, Villmer wiped clean the hard drive on
his laptop computer without firm authorization and erased files on Plaintiff’s CLIO
document retention system that were the property of Plaintiff. (Am. Compl. ¶ 300.)
Caudill likewise deleted most of the work product and data on the hard drive of his
work computer without authorization. (Am. Compl. ¶ 301.)
18. 	Plaintiff called and noticed a shareholder’s meeting for 20 January 2022 at
Plaintiff’s offices, during which the Individual Defendants were removed as officers
and terminated as employees of Plaintiff. (Am. Compl. ¶¶ 104–08, 113–14.)
19. 	Plaintiff emailed and faxed a letter dated 7 March 2022 to the Individual
Defendants, reiterating the agreements reached between WBB and the Individual
Defendants regarding Plaintiff’s contingency fee cases, and asking the Individual
Defendants to notify Plaintiff when each case was settled so that the fees could be
divided pursuant to the applicable agreement. (Am. Compl. ¶ 139–40.) Defendants
did not respond.
20. 	Plaintiff learned that one of the Power Home Solar lawsuits had settled
when WBB received a refund check from the American Arbitration Association on 1
June 2022. (Am. Compl. ¶ 146–148.) On 20 June 2022, Plaintiff wrote to Defendants
asking for details of the settlement, including the dollar amount of the settlement,
total hours expended by attorneys at VC, PLLC, and the amount of expenses
advanced by VC, PLLC. (Am. Compl. ¶ 149.)

21. 	On 16 August 2022, Defendants emailed Plaintiff copies of Defendants’ time
records from the litigation. 	Plaintiff alleges that these billing records grossly
overstate the actual amount of time Defendants expended on the matter. 	(Am.
Compl. ¶ 152.)
22. 	As of the filing of the Amended Complaint, Defendants have not paid
Plaintiff either the expenses advanced or the percentage share of attorney’s fees they
agreed to pay when the contingent fee cases resolved. (Am. Compl. ¶ 268.)
III. 	PROCEDURAL BACKGROUND
23. 	The Court sets forth here only those portions of the procedural history
relevant to its determination of the Motion.
24. 	Plaintiff filed the Complaint in this action on 22 December 2022. (ECF
No. 3).
25. 	Defendants filed a notice of designation on 17 January 2023, (ECF No. 5),
and this action was designated as a mandatory complex business case and assigned
to the undersigned on 20 January 2023. (ECF Nos. 1–2.)
26. 	Defendants filed their Motion to Dismiss for Failure to State a Claim, (ECF
No. 10), and brief in support, (ECF No. 11), on 6 March 2023. 	That same day,
Defendants filed their Answer and Counterclaims, (ECF No. 12), and a Motion to Join
Parties, (ECF No. 13), in order to add Weaver, Whittaker, and Bland as counterclaim
defendants in this action. Plaintiff did not contest the Motion to Join Parties, and on
31 March 2023, the Court granted the motion, joining Weaver, Whittaker, and Bland
as counterclaim defendants and directing Defendants to file amended counterclaims

accordingly. 	(ECF No. 21.) 	On 5 April 2023, Defendants filed their Amended
Counterclaims. (ECF No. 23.)
27. 	On 17 April 2023, Plaintiff filed its Motion to Amend the Complaint (the
“Motion to Amend”) and supporting brief (ECF Nos. 24–25). 	Defendants filed their
brief in opposition to the Motion to Amend on 8 May 2023, (ECF No. 35 [“Defs.’ Br.”]),
and Plaintiff filed its reply on 18 May 2023. (ECF No. 36.)
28. 	On 7 June 2023, the Court granted the Motion to Amend, (ECF No. 42), and
Plaintiff filed its Amended Complaint on 8 June 2023. 	(ECF No. 43.) 	Defendants’
Motion was filed on 23 June 2023. (ECF No. 45.) With consent of all parties, and to
prevent duplicative re-briefing, the Court ordered that the briefing in support of and
opposition to the Motion to Amend would be considered in support of this Motion.
(See ECF No. 46.)
29. 	The Court conducted oral argument on the Motion on 28 June 2023. (ECF
No. 46.) The Motion is now ripe for determination.
IV. 	LEGAL STANDARD
30. 	“On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter
of law, the allegations of the complaint, treated as true, state a claim upon which
relief can be granted.” 	Fischer Inv. Capital, Inc. v. Catawba Dev. Corp., 200 N.C.
App. 644, 649 (2009). “[T]he complaint is to be liberally construed, and the trial court
should not dismiss the complaint unless it appears beyond doubt that the plaintiff
could prove no set of facts in support of his claim which would entitle him to relief.”
State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 444 (2008). “[W]hen

ruling on a Rule 12(b)(6) motion, a court may properly consider documents which are
the subject of a plaintiff’s complaint and to which the complaint specifically refers.”
Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 60 (2001). 	Furthermore, a court
“can reject allegations that are contradicted by the documents attached, specifically
referred to, or incorporated by reference in the complaint.” 	Moch v. A.M. Pappas &
Assocs., LLC, 251 N.C. App. 198, 206 (2016) (quoting Laster v. Francis, 199 N.C. App.
572, 577 (2009)). 	“The question before us is whether, as a matter of law, the
allegations of the complaint, treated as true, are sufficient to state a claim upon which
relief may be granted under some legal theory, whether properly labeled or not.”
Gant v. NCNB Nat. Bank, 94 N.C. App. 198, 199 (1989).
V. 	ANALYSIS
31. 	Defendants move to dismiss Plaintiff’s claims for fraud, breach of contract,
tortious interference with contract, facilitation of fraud, and attorney fraudulent
practices, as well as Plaintiff’s requested remedies of constructive trust, punitive
damages, and disgorgement of salary, benefits, and bonuses. 	The Court takes each
claim in turn.
A. 	Fraud
32. 	Plaintiff asserts claims for fraudulent misrepresentation and for fraudulent
omission in the face of a duty to disclose. As to the former, Plaintiff alleges that the
Individual Defendants falsely represented to Plaintiff’s leadership that the reason
they refused to personally guaranty a bank loan taken out by Plaintiff in October
2020 for the purpose of renovating the firm’s office building was because their stock

had not yet fully vested. 	The true reason for the refusal, Plaintiff alleges, was that
the Individual Defendants secretly planned to leave Plaintiff’s employ soon thereafter
and sought to avoid personal liability on a large loan for their soon-to-be former firm.
33. 	The Individual Defendants’ planned departure likewise forms the basis for
Plaintiff’s 	fraudulent 	omission 	claims. 	Plaintiff 	alleges 	that 	the 	Individual
Defendants had a duty to disclose, but failed to disclose, their plans: (1) to leave
Plaintiff, (2) to induce Plaintiff’s clients and employees to follow them to their new
firm, (3) to alter fee-splitting obligations in Plaintiff’s contingent fee cases, (4) to form
VC, PLLC while working for Plaintiff, and (5) to destroy data, files, and work product
reflecting their activities during their employment with Plaintiff. 	(Am. Compl. ¶
196.)
34. 	Defendants argue Plaintiff has not pled all of the essential elements of
fraud and, with respect to those elements that are pled, that Plaintiff fails to plead
with the requisite particularity. (Defs.’ Br. 4–6.)
35. 	The five essential elements needed to state a claim for fraud are: (1) a false
representation of a material fact; (2) reasonably calculated to deceive; (3) made with
intent to deceive; (4) that did in fact deceive (i.e., was reasonably relied upon by the
recipient of the misrepresentation); and (5) resulting in damage to the injured party.
Rowan Cty. Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 17 (1992).
36. 	In addition to these elements, Rule 9(b) requires that “[i]n all averments
of fraud, duress or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity.” 	N.C.G.S. § 1A-1, Rule 9(b). 	To meet the particularity

requirement for fraudulent misrepresentation, a plaintiff must allege the “time, place
and content of the fraudulent representation, identity of the person making the
representation 	and 	what 	was 	obtained 	as 	a 	result 	of 	the 	fraudulent 	acts 	or
representations.” Terry v. Terry, 302 N.C. 77, 85 (1981).
37. 	In contrast, “[f]raudulent concealment or fraud by omission is, by its very
nature, difficult to plead with particularity.” McKee v. James, 2013 NCBC LEXIS 33,
at *22 (N.C. Super. Ct. July 24, 2013) (quoting Lawrence v. UMLIC-Five Corp., 2007
NCBC LEXIS 20, at *9 (N.C. Super. Ct. June 18, 2007)). 	Fraud claims based on
omission require a plaintiff to allege:
(1) the relationship [between plaintiff and defendant] giving rise to the
duty to speak; (2) the event or events triggering the duty to speak and/or
the general time period over which the relationship arose and the
fraudulent conduct occurred; (3) the general content of the information
that was withheld and the reason for its materiality; (4) the identity of
those under a duty who failed to make such disclosures; (5) what [the
defendant] 	gained 	by 	withholding 	information; 	(6) 	why 	plaintiff's
reliance on the omission was both reasonable and detrimental; and (7)
the damages proximately flowing from such reliance.
Lawrence, 2007 NCBC LEXIS 20, at *9 (quoting Breeden v. Richmond Cmty. Coll.,
171 F.R.D. 189, 195-96 (M.D.N.C. 1997)).
38. 	The Court first addresses fraudulent misrepresentation, then turns to
fraudulent omission.
i. 	Fraudulent Misrepresentation
39. 	Plaintiff’s fraudulent misrepresentation claim is based upon statements the
Individual Defendants made when refusing to personally guarantee Plaintiff’s loan
for renovations to its offices. 	At the loan closing in October 2020, the Individual

Defendants “falsely represented to the Plaintiff” that the reason they were unwilling
to guarantee the loan to the Bank was because their stock in Plaintiff had not yet
fully vested. (Am. Compl. ¶¶ 207–08 (emphasis added).) Plaintiff alleges the vesting
of stock was a pretext, and the true reason was that the Individual Defendants sought
to 	avoid 	personal 	liability 	for 	Plaintiff’s 	loans 	given 	their planned 	departure.
Defendants emphasize that Plaintiff did not specify the employee or agent of Plaintiff
to which the representation was made. 	(Am. Compl. ¶¶ 207–08 (emphasis added).)
Consequently, Defendants argue that Plaintiff’s fraudulent misrepresentation claim
lacks the requisite particularity.
40. 	The Court disagrees. For fraud claims, “[a] requirement of specificity is not
a requirement of perfect and complete specificity.” 	Hudgins v. Wagoner, 204 N.C.
App. 480, 487 (2010). 	Here, the Amended Complaint specifies when and where the
misrepresentation occurred, along with the substance of the misrepresentation—a
critical distinction from Quidore v. All. Plastics, LLC, which Defendants cite. 	See
Quidore, 2020 NCBC LEXIS 140, at **20 (N.C. Super Ct., Dec. 3, 2020). The Court
concludes 	that 	the 	Amended 	Complaint 	provides 	sufficient 	detail 	to 	enable
Defendants to prepare a defense and, therefore, the specificity requirement is met.
41. 	Defendants 	also 	argue 	that 	Plaintiff 	failed 	to 	plead 	that 	the
misrepresentation was reasonably calculated to deceive, made with the intent to
deceive, and actually deceived Plaintiff. 	(Defs.’ Br. 5.) 	Again, the Court disagrees.
The Individual Defendants allegedly persuaded Plaintiff to take out a substantial
loan in order to saddle Plaintiff with debts upon their departure from Plaintiff. (Am.

Compl. ¶¶ 209–10.) 	To that end, Plaintiff alleges that the misrepresentation was
made intentionally so that Plaintiff would proceed with the loan without learning of
the Individual Defendants’ intent to leave Plaintiff’s employ. 	It alleges that it
obtained the loan without personal guarantees from the Individual Defendants and
did not learn of the Individual Defendants’ plan to form VC, PLLC for over a year
after the loan was made. 	Consequently, Plaintiff alleges that it was deceived and
relied on the representation to its detriment. (See Am. Compl. ¶ 88.)
42. 	Plaintiff has adequately alleged the essential elements of fraud. 	The
Motion is therefore DENIED as to Plaintiff’s fraudulent misrepresentation claim.
ii. 	Fraudulent Omission
43. 	Plaintiff’s several claims for fraudulent omission are based upon the
Individual Defendants’ duties as officers and fiduciaries of Plaintiff to inform
Plaintiff’s other officers and shareholders of their plan to leave Plaintiff’s employ.
Under Plaintiff’s theory, Defendants had a duty to disclose their plan, and their
failure to disclose it while at the same time taking steps that would benefit the new
firm they were starting (e.g., hiring and training the Associates, advancing funds to
contingent fee clients, awarding themselves bonuses, and modifying Plaintiff’s fee
splitting arrangements) was a fraudulent omission. (Am. Compl. ¶¶ 55–57, 289, 323.)
44. 	Defendants 	argue 	the 	Amended 	Complaint 	fails 	to 	allege that 	these
omissions were material or that Plaintiff relied upon the omissions. (Defs’ Br. 4–6.)
The Court disagrees. The Amended Complaint plainly alleges the materiality of the
purported omissions by stating that “Plaintiff would not have advanced funds for

certain clients” and “would not have paid the Defendants or any of the Plaintiff’s other
attorneys’ bonuses” had they known of the plan. 	(Am. Compl. ¶¶ 200, 223.) 	These
allegations make clear that knowledge of the Individual Defendants’ plan would have
materially affected Plaintiff’s decisions at each turn. 	Accordingly, the Motion is
DENIED as to the fraud claims against the Individual Defendants.
45. 	Not so, as to VC, PLLC, however. 	While the Individual Defendants were
officers with fiduciary duties that required them to disclose their intentions, the
Amended Complaint does not allege that VC, PLLC owed any duty to Plaintiff that
would require it to make disclosures. 	Accordingly, the Motion is GRANTED as to
the fraud claims against VC, PLLC.
B. 	Breach of Contract
46. 	As to Plaintiff’s claim for breach of contract, the Amended Complaint
alleges that Plaintiff contracted with the Individual Defendants on 9 January 2022
to divide the contingent fees earned in cases that transferred to the new firm based
on the relative amount of time expended by each law firm. (Am. Compl. ¶¶ 227–229.)
47. 	Defendants argue that Plaintiff has failed to allege valid consideration for
the purported agreement, mandating dismissal of the claim. 	(Defs.’ Br. 7.) 	“The
elements of a claim for breach of contract are (1) existence of a valid contract and (2)
breach of the terms of that contract.” 	Poor v. Hill, 138 N.C. App. 19, 26 (2000).
“[S]tating a claim for breach of contract is a relatively low bar.” Vanguard Pai Lung,
LLC v. Moody, 2019 NCBC LEXIS 39, at *11 (N.C. Super. Ct. June 19, 2019).
Accordingly, “only where the complaint calls into question whether there was mutual

assent to the contract or proper consideration should the Court consider those
elements of contract formation at such an early stage in litigation.” Beam v. Sunset
Fin. Servs., 2019 NCBC LEXIS 56, at *28 (N.C. Super. Ct. Sept. 3, 2019).
48. 	Plaintiff alleges that the Individual Defendants “specifically agreed with
the Plaintiff at the January 9, 2022, meeting that any contingent fees that were
earned on contingent matters which left with the Defendants would be divided
between Defendants and Plaintiff based on the percentage of the actual amount of
time expended by each law firm.” (Am. Compl. ¶ 227.) Plaintiff further alleges that
“Defendants 	have 	failed and refused to 	pay 	the 	Plaintiff 	either the 	expenses
advanced, or the percentage of the attorney fees agreed upon on the contingent fee
cases[.]” 	(Am. Compl. ¶ 231.) 	Thus, the Amended Complaint states a claim at this
stage. The Motion is DENIED to the extent it seeks to dismiss Plaintiff’s breach of
contract claim.
C. 	Tortious Interference with Contract
49. 	To state a claim for tortious interference with contract, the Amended
Complaint must allege that:
(1) A valid contract [exists] between the plaintiff and a third person
which confers upon the plaintiff a contractual right against a third
person; (2) the defendant knows of the contract; (3) the defendant
intentionally induces the third person not to perform the contract; (4)
and in doing so acts without justification; [and] (5) resulting in actual
damage to plaintiff.
United Lab., Inc., v. Kuykendall, 322 N.C. 643, 661 (1988). “The pleading standards
for a tortious interference with contract claim are strict.” Urquhart v. Trenkelbach,
2017 NCBC LEXIS 12, at *15 (N.C. Super. Ct. Feb. 8, 2017).

50. 	Plaintiff alleges the Individual Defendants tortiously interfered with the
employment 	contracts 	of 	each 	of 	the 	Associates. 	(Am. 	Compl. 	¶¶ 	251–256.)
Defendants 	contend 	that 	the 	Amended Complaint 	fails 	to allege three 	of 	the
necessary elements of a tortious interference claim: (1) the existence of a valid
contract at the relevant time, (2) inducement by the Individual Defendants for the
Associates to breach their contracts with the Plaintiff, and (3) lack of justification.
(Defs.’ Br. 9–12.)
i. 	Existence of a Valid Contract
51. 	Defendants contend that the Amended Complaint fails to allege that the
Associates had valid employment contracts with Plaintiff in 2022—the year the
alleged interference occurred. 	(Defs.’ Br. 14.) 	The Amended Complaint states that
Plaintiff had employment contracts with the Associates in 2021, and “[a]t the time
[Individual Defendants] began to carry out their plan to take Plaintiff’s employees[.]”
(Am. Compl. 	¶¶ 237–38.) 	The acts alleged in support of Plaintiff’s tortious
interference claim occurred in January 2022. 	(Am. Compl. ¶¶ 241, 243 249.)
Although the Amended Complaint does not expressly state that each employment
contract was effective in 2022, viewed in the light most favorable to Plaintiff, the
Amended Complaint sufficiently pleads that the Associates had valid contracts in
place during the relevant time. The Amended Complaint specifically states that on
3 January 2022, the Individual Defendants met with a select group of Plaintiff’s
employees to induce them to “terminate their employment contracts.” 	(Am. Compl.

¶ 243 (emphasis added).) Therefore, the Amended Complaint sufficiently pleads that,
during all relevant times, the Associates had employment contracts with Plaintiff.
ii. 	Inducement
52. 	Defendants next contend that Plaintiff makes only conclusory allegations
regarding the Individual Defendants’ inducement of the Associates to terminate their
employment. 	This Court has interpreted “induce” to mean “purposeful conduct,”
“active persuasion, request, or petition.” KRG New Hill Place, LLC v. Springs Inv'rs,
LLC, 	2015 	NCBC 	LEXIS 	20, 	at 	*14–15 	(N.C. 	Super. 	Ct. 	Feb. 	27,
2015) (quoting Inland Am. Winston Hotels, Inc. v. Crockett, 212 N.C. App. 349, 354
(2011)). 	The Amended Complaint alleges that the Individual Defendants—in their
roles as managing partner and as head of Plaintiff’s litigation group—informed select
employees of Plaintiff that Plaintiff was going out of business, and anyone who did
not go with them to VC, PLLC would lose their job and put their family and future at
risk. 	(Am. Compl. ¶¶ 94, 241, 243.) 	Following Attorney Walker’s initial refusal of
employment with VC, PLLC, the Individual Defendants met with Attorney Walker
again, reiterating that he was putting his family at risk by staying with Plaintiff.
Moreover, the Individual Defendants instructed the Associates not to disclose these
discussions to anyone. (Am. Compl. ¶ 244.)
53. 	The Individual Defendants engaged in purposeful conduct by holding a
meeting with the Associates on 3 January 2022 to convince them to leave Plaintiff
and join VC, PLLC. 	Further, the Individual Defendants actively persuaded the
Associates by telling them that their careers and families would be put at risk if they

did not join VC, PLLC. 	Particularly given that the Individual Defendants were in
positions of authority over the Associates, these allegations are sufficient to allege
the element of inducement.
iii. 	Lack of Justification
54. 	Finally, Defendants contend that the Amended Complaint reveals that the
interference was for a legitimate business purpose—their desire to establish a
competing business. “Generally speaking, interference with contract is justified if it
is 	motivated by a legitimate business 	purpose, 	as 	when 	the 	plaintiff 	and the
defendant, an outsider, are competitors.” 	Embree Constr. Grp., Inc. v. Rafcor, Inc.,
330 N.C. 487, 498 (1992). Here, however, Individual Defendants were not outsiders—
it is alleged they were officers and fiduciaries of Plaintiff. 	And although corporate
fiduciaries have “a qualified privilege to interfere with contractual relations between
the corporation and a third party[,]” fiduciaries “who act for their own benefit may be
held personally liable.” 	Id. at 498–99. 	The Amended Complaint plainly states that
the Individual Defendants induced the Associates to terminate their employment
contracts so that they would come to work for VC, PLLC, for the direct benefit of the
Individual Defendants. 	Therefore, the Amended Complaint reveals no legitimate
business purpose and this pleading element is satisfied.
55. 	Accordingly, the Motion is DENIED to the extent it seeks dismissal of
Plaintiff’s claim for tortious interference with contract.

D. 	Facilitation of Fraud
56. 	Next, Defendants seek dismissal of Plaintiff’s facilitation of fraud claim on
two bases: first, that Plaintiff has not stated a claim for the underlying claim of fraud
and second, that the facilitation claim is duplicative of Plaintiff’s civil conspiracy
claim. 	(Defs.’ Br. 15.) 	“Facilitation of fraud requires a showing ‘(1) that the
defendants agreed to defraud the plaintiff; (2) that defendants committed an overt
tortious act in furtherance of the agreement; and (3) that plaintiff suffered damages
from that act.’ ” Potts v. KEL, LLC, 2019 NCBC LEXIS 30, at *24 (N.C. Super. Ct.
May 9, 2019) (citing Neugent v. Beroth Oil Co., 149 N.C. App. 38, 53 (2002)). A claim
for facilitation of fraud must “be based on the conspiring parties’ agreement to carry
out alleged misconduct that supports a separate, underlying claim.” Loray Mill Devs.,
LLC v. Camden Loray Mill Phase 1, LLC, 2023 NCBC LEXIS 21, at *52 (N.C. Super.
Ct. Feb. 7, 2023).
57. 	As discussed in paragraph 42, supra, Plaintiff has stated a valid claim for
fraud against the Individual Defendants regarding Plaintiff’s contingency fee clients.
This claim serves as the underlying claim for purposes of the facilitation claim. As a
result, dismissal is not warranted on that basis. Nevertheless, Defendants are correct
that, as pleaded, Plaintiff’s facilitation of fraud claim is duplicative of its civil
conspiracy claim. See TaiDoc Tech. Corp. v. OK Biotech Co., 2016 NCBC LEXIS 26,
*29–30 (N.C. Super. Ct. Mar. 28, 2016) (concluding that civil conspiracy and
facilitation of fraud are essentially the same claim where the object of the parties’
alleged agreement is to defraud another.)

58. 	Plaintiff’s civil conspiracy claim rests upon both its fraud and breach of
fiduciary duty claims and subsumes its claim for facilitation of fraud. This Court has
previously dismissed claims which are a “species” of another surviving claim. 	E.g.
Zagaroli v. Neill, 2017 NCBC LEXIS 103, at *34 (N.C. Super. Ct. Nov. 7, 2017); Cutter
v. Vojnovic, 2023 NCBC LEXIS 14, at *12 (N.C. Super. Ct. Jan 24, 2023) (dismissing
misappropriation of business opportunity claims as unnecessarily duplicative of
claims for breach of fiduciary duty). 	Plaintiff’s facilitation claim is a “species” of its
civil conspiracy claim, and therefore, dismissal of the former is appropriate to avoid
confusion in this case. 	Accordingly, the Motion is GRANTED without prejudice to
the 	extent 	it 	seeks 	dismissal 	of 	Plaintiff’s 	claim 	for 	facilitation 	of 	fraud.
Notwithstanding this dismissal, the substantive allegations may be included in
Plaintiff’s claim for civil conspiracy.
E. 	Attorney Fraudulent Practices under N.C.G.S. § 84-13
59. 	Defendants seek dismissal of Plaintiff’s section 84-13 claim for attorney
fraudulent practices, arguing that the statute is inapplicable in this case. (Defs.’ Br.
Supp Mot. Dismiss 19, ECF No. 11.) Plaintiff contends that section 84-13 applies to
its 	claims 	for 	breach 	of 	fiduciary 	duty, 	fraud, 	unjust 	enrichment, 	conversion,
obstruction of justice, and tortious interference, and seeks double damages for those
claims. (Am. Compl. ¶¶ 343–344.)
60. 	Section 84-13 provides, “[i]f any attorney commits any fraudulent practice,
he shall be liable in an action to the party injured, and on the verdict passing against
him, judgment shall be given for the plaintiff to recover double damages.” N.C.G.S.

§ 84-13. 	Critically, section 84-13 is found in Article 2, entitled “Relation to Client.”
The applicability of this section, therefore, turns on whether Plaintiff was a client of
the Individual Defendants during the alleged fraudulent acts and omissions. 	The
Amended Complaint contains no allegations that an attorney-client relationship
existed between Plaintiff and the Individual Defendants during any relevant time.
While the Individual Defendants may have been officers and fiduciaries of Plaintiff,
the Court finds no basis to expand section 84-13 beyond its apparent intent—to
govern the relationship between attorneys and clients. 	The Motion is therefore
GRANTED to the extent it seeks dismissal of Plaintiff’s claim under section 84-13,
and this claim is dismissed with prejudice.
F. 	Remedies
61. 	Finally, 	Defendants 	seek 	to 	dismiss 	Plaintiff’s 	requested 	remedies 	of
constructive trust, disgorgement, and punitive damages because they are “disguised
claims.” The Court disagrees. It is true that the original Complaint mischaracterized
these remedies as causes of action, (see Comp., ¶¶ 295, 314, 388), but the Amended
Complaint properly re-frames them as remedies. 	And while Defendants are correct
that a remedy must be attached to a validly pleaded cause of action, the Amended
Complaint does so. 	Accordingly, Defendants’ Motion is DENIED to the extent it
seeks to dismiss Plaintiff’s requested remedies of constructive trust, disgorgement,
and punitive damages. Plaintiff’s entitlement to those remedies shall be determined
at a later stage.

VI. 	CONCLUSION
62. 	For the foregoing reasons, Defendants’ Motion is GRANTED in part and
DENIED in part as follows:
a. 	As 	to 	Plaintiff’s 	fraud 	claims 	against 	VC, 	PLLC, 	the 	Motion 	is
GRANTED and those claims are dismissed with prejudice;2
b. 	As to Plaintiff’s facilitation of fraud claim, the Motion is GRANTED and
that claim is dismissed without prejudice;
c. 	As to Plaintiff’s claim under section 84-13, the Motion is GRANTED
and that claim is dismissed with prejudice;
d. 	Defendants’ Motion is DENIED as to all other claims.
SO ORDERED, this the 31st day of July, 2023.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases
2 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court[.]” First Fed. Bank v. Aldridge, 230 N.C. App. 187, 191 (2013).