Multifamily Select Inc. v. Williams, 2026 NCBC 82.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FORSYTH COUNTY 25CVS002370-330
MULTIFAMILY SELECT, INC.,
Plaintiff,
v.
ORDER AND OPINION ON
CALVIN SMALL, as Executor of the PLAINTIFF’S MOTION FOR Estate of LUCINDA WILLIAMS; SUMMARY JUDGMENT TANNJA JOHNSON; and PRESKEN
MANAGEMENT, LLC,
Defendants.
1. THIS MATTER is before the Court upon Plaintiff Multifamily Select, Inc.’s
(the “Plaintiff” or “MSI”) Motion for Summary Judgment (the “Motion”), filed
pursuant to Rule 56 of the North Carolina Rules of Civil Procedure on 18 May 2026
in the above-captioned case. (Pl.’s Mot. Summ. J. [“Pl.’s MSJ”], ECF No. 40.)
2. Having considered the Motion, the Plaintiff’s brief in support of the Motion,
the relevant pleadings, and other appropriate matters of record, the Court, in the
exercise of its discretion, hereby GRANTS the Motion as set forth below.
Blanco Tackabery & Matamoros, P.A., by Chad A. Archer and Ryan T.
Dovel, for Plaintiff Multifamily Select, Inc.
McGrath & Spielberger, PLLC, by Trent Grissom, for Defendants Calvin
Small, as Executor of the Estate of Lucinda Williams, 1 Tannja Johnson,
and Presken Management, LLC.
Shirley, Judge.
1 Lucinda Williams was an original named Defendant in this action. (See Compl., ECF No. 3.) Calvin Small, as Executor of the Estate of Lucinda Williams, was substituted as a named Defendant in place of Defendant Lucinda Williams pursuant to an order entered by the Court on 23 March 2026. (ECF No. 37.)
I.
FACTUAL AND PROCEDURAL BACKGROUND
3. While the Court does not make findings of fact on a motion for summary
judgment, “it is helpful to the parties and the courts for the trial judge to articulate a
summary of the material facts which he considers are not at issue and which justify
entry of judgment.” Collier v. Collier, 204 N.C. App. 160, 161–62 (2010) (citation and
quotation marks omitted). Accordingly, the following background, drawn from the
undisputed evidence submitted by the Plaintiff, is intended only to provide context
for the Court’s analysis and ruling, and not to resolve issues of material fact. 2
4. Plaintiff MSI is a North Carolina corporation with a registered office in
Winston-Salem, North Carolina. (Compl. ¶ 3.) MSI “manages, develops, and consults
for FHA-insured multifamily property owners and developers” within North Carolina
and South Carolina. (Pl.’s Br. Supp. Mot. Summ. J. [“Pl.’s Br. Supp. MSJ”], ECF No.
41.)
5. Defendant Lucinda Williams (“Williams”) was a resident of Charlotte, North
Carolina. (Compl. ¶ 4; Def. Williams’s Answer [“Williams Ans.”] ¶ 4, ECF No. 15.)
Williams began working for MSI in 2013 as Senior Vice President of Affordable
Housing. (Decl. of Michael Jameyson Supp. Mot. Summ. J. [“Jameyson Decl.”] ¶ 7,
ECF No. 41.2.) Williams was a director and officer of MSI from the date of her hiring
until she resigned from MSI in 2023. (Jameyson Decl. ¶ 7.) Williams passed away
on 1 November 2025. (Joint Mot. Amend Case Mgmt. Order ¶ 1, ECF No. 26.)
2 Defendants did not file a brief or any material in opposition to the Motion. Pursuant to
B.C.R. 7.4, “the [M]otion will be considered and decided as an uncontested motion.”
6. Defendant Tannja Johnson (“Johnson”) is an individual resident of
Columbia, South Carolina. (Compl. ¶ 5; Def. Johnson’s Answer [“Johnson Ans.”] ¶ 5,
ECF No. 14.) Johnson also began working for MSI in 2013 as a property manager,
and in 2016 was promoted to district manager. (Tannja Johnson Dep. Tr. [“Johnson
Dep.”] at 6:2–15; 7:14–18, ECF No. 41.3.) Because they began their careers with MSI
at approximately the same time, Williams and Johnson formed a close working
relationship over the subsequent years. (Johnson Dep. at 17:13–25.)
7. Defendant Presken Management, LLC (“Presken”) is a North Carolina
limited liability company with offices in Charlotte, North Carolina. (Compl. ¶ 6; Def.
Presken’s Answer [“Presken Ans.”] ¶ 6, ECF No. 16.) Williams founded Presken in
2013. (Compl. ¶ 18; Williams Ans. ¶ 18.)
8. In the years after Williams joined MSI, six multifamily properties that she
had previously managed throughout her career entered into management contracts
with MSI: Topeka Heights Apartments (“Topeka Heights”), Trinity Gardens
Apartments (“Trinity Gardens”), First Baptist Homes I, First Baptist Homes II,
Shiloh Randolph Manor, and Edwards Place Apartments (“Edwards Place,” and
collectively, the “Six Properties”). (Jameyson Decl. ¶¶ 5–8; see also Jameyson Decl.
Ex. 1 [the “MSI Contracts”].)
9. Williams and Johnson continued working in their respective roles at MSI
until March 2021, when Johnson was ultimately promoted to Regional Vice
President. (Jameyson Decl. ¶ 18; Johnson Dep. at 7:22–25; 8:1.) In this role, Johnson
was tasked with overseeing several properties managed by MSI, including five of the Six Properties. (Johnson Dep. at 9:13–17; 10:20–25.) This oversight included
attending each property’s quarterly board meetings on MSI’s behalf to present
property financials, HUD requirements, and other information. (Johnson Dep. at
14:3–22.)
10. At some point in late 2022 or early 2023, Williams informed the other MSI
owners, officers, and directors that she was retiring from MSI and her role as Senior
Vice President of Affordable Housing. (Jameyson Decl. ¶ 19; Johnson Dep. at 15:6–
23.) Based on this information, MSI began training Johnson to take over Williams’s
role in early 2023. (Jameyson Decl. ¶ 20; Johnson Dep. at 16:19–25; 17:1–2.) This
included making Johnson the primary point of contact for each of the Six Properties.
(Jameyson Decl. ¶ 22.)
11. In early July 2023, unbeknownst to MSI, Williams approached Johnson
about leaving MSI to be the President of Presken. (Johnson Dep. at 18:4–13; 20:10–
18.) During this meeting, Williams informed Johnson that she was not, in fact,
retiring, and was instead focusing on her company, Presken. (See Johnson Dep. at
19:2–14.) Williams also informed Johnson that she had already spoken with five of
the Six Properties about abandoning the remainder of their contracts with MSI and
joining Presken following Williams’s departure. (Johnson Dep. at 19:6–14.) In an
effort to incentivize Johnson, Williams then offered Johnson an ownership stake in
Presken if she agreed to leave MSI. (Johnson Dep. at 19:11–14.)
12. At some point prior to 21 July 2023, Johnson accepted Williams’s offer to
leave MSI and join Presken as President. (Johnson Dep. at 20:2–18.) Neither Johnson nor Williams informed MSI of this decision at that time, and both continued
to work for MSI in their respective positions. (Johnson Dep. at 20:10–22.)
13. On 21 July 2023, Johnson participated in a meeting via telephone
conference (the “Meeting”) with the board of directors for Topeka Heights, one of the
Six Properties, on behalf of MSI. (Johnson Dep. at 23:2–5; Johnson Dep. Ex. 2 [the
“Meeting Minutes”], ECF No. 41.4.) At the time, Topeka Heights had a management
contract with MSI, and Johnson oversaw the property as part of her duties as
Regional Vice President. (See MSI Contracts; Jameyson Decl. ¶¶ 22–23.)
14. Without MSI’s prior knowledge or approval, Johnson also invited Williams
to attend the Meeting. (Johnson Dep. at 25:15–23.) When Johnson introduced
Williams, she specified that Williams was attending as “a representative of Presken,”
and not in her capacity as Senior Vice President of Affordable Housing for MSI.
(Johnson Dep. at 24:7–11; see also Meeting Minutes.)
15. During the Meeting, Williams informed Topeka Heights that both Williams
and Johnson were leaving their positions at MSI and had “formed their own
company”: Presken. (Meeting Minutes.) Williams told the board that Topeka
Heights’s contract with MSI required 60 days’ notice to terminate, so they needed to
decide by 28 July 2023 whether to follow Williams and Johnson to Presken or remain
with MSI. (Meeting Minutes.) Williams further pressured Topeka Heights by stating
that Presken had “already brought Edwards Place on board,” another of the Six
Properties. (Meeting Minutes.)
16. Prior to the Meeting, neither Williams nor Johnson informed MSI that any
of the Six Properties had been solicited to leave MSI to join Presken, or that they
planned to solicit Topeka Heights. (Jameyson Decl. ¶¶ 28–29; Johnson Dep. at 25:15–
19.) Immediately after the Meeting, neither Williams nor Johnson informed MSI that
Williams had presented to the board on behalf of Presken at the Meeting, despite
both women still being employed by MSI at the time. (Johnson Dep. at 25:15–23.)
17. On 2 August 2023, Williams distributed an e-mail to MSI’s owners, officers,
and directors containing six nearly identical letters (the “Termination Notice(s)”)
from each of the Six Properties. (Jameyson Decl. Ex. 2 [“Notices”], ECF No. 41.2.)
Each Termination Notice stated that the property in question was terminating its
service agreement with MSI, effective 30 September 2023, and moving to Presken,
effective 1 October 2023. (Notices.) Williams provided no explanation for the
Termination Notices, nor did she indicate her involvement in the Six Properties’
decisions. In fact, all Williams said in the e-mail was, “Everyone: Please see
attached.” (Notices.)
18. On 12 August 2023, Johnson formally assumed her position as President of
Presken. ((30)(b)(6) Dep. of Tannja Johnson [“Presken Dep.”] at 6:1–6, ECF No. 41.5.)
Johnson, in her capacity as President, later admitted that she believed the
Termination Notices were prepared by Presken, and were then distributed to the Six
Properties for them to execute. (Presken Dep. at 23:17–25.)
19. Prior to the Termination Notices, MSI had not received any complaints of
dissatisfaction from any of the Six Properties regarding MSI’s management services. (Presken Dep. at 26:1–8; Jameyson Decl. ¶¶ 26–27.) In fact, four of the six
Termination Notices, including the one from Topeka Heights, thanked MSI for
“many, many years of excellent service[.]” (Notices.)
20. Williams continued to serve as a director and officer of MSI until 1
November 2023, when she ultimately resigned. (See Jameyson Decl. Ex. 3 [“Williams
Resignation”], ECF No. 41.2.)
21. Despite requiring the Six Properties to terminate their contracts with MSI
effective 30 September 2023, Presken did not have the “legal authorization” to
actually begin managing all of the Six Properties on 1 October 2023. (Jameyson Decl.
¶ 35.) As a result, MSI continued servicing three of the Six Properties (Edwards
Place, Topeka Heights, and Trinity Gardens) until early 2024 when Presken was
finally able to do so. (Jameyson Decl. ¶ 35.) MSI therefore incurred the additional
sunk costs of servicing three properties with whom it no longer had long-term
management contracts. When Presken was finally managing all Six Properties, MSI
lost all profits previously generated by those contracts, the value of which totaled
$542,000.00. (Jameyson Decl. ¶ 36; Decl. Timothy F. Morrison Supp. Mot. Summ. J.
Ex. A [the “Damages Report”], ECF No. 41.6.)
22. On 11 April 2025, Plaintiff filed the Complaint, asserting claims for: (a)
breach of fiduciary duty against Williams and Johnson (the “First Claim”), (b) tortious
interference against Williams and Johnson (the “Second Claim”), (c)
misappropriation of trade secrets against all Defendants (the “Third Claim”), (d)
constructive fraud against Williams and Johnson (the “Fourth Claim”), (e) civil conspiracy against all Defendants (the “Fifth Claim”), and (f) unfair or deceptive
trade practices (“UDTP”) against all Defendants (the “Sixth Claim”). (Compl. ¶¶ 35–
70.)
23. This case was designated as a mandatory complex business case on
14 April 2025 and assigned to the Honorable A. Todd Brown. (ECF Nos. 1, 2.) This
case was re-assigned to the undersigned on 4 March 2026. (ECF No. 30.)
24. Plaintiff filed the Motion on 18 May 2026 seeking summary judgment on all
of its claims except Plaintiff’s Third Claim for misappropriation of trade secrets. (Pl.’s
MSJ.) The Motion is now ripe for resolution, and notwithstanding Defendants’ failure
to respond to the Motion, the Court must decide whether the uncontested facts entitle
Plaintiff to judgment as a matter of law.
II.
LEGAL STANDARD
25. Summary judgment is appropriate when “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 judgment as a matter of law.” N.C. R. Civ. P. 56(c). A genuine issue of
material fact is one supported by “substantial evidence,” meaning “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Head v. Gould Killian CPA Grp., P.A., 371 N.C. 2, 8 (2018) (citations omitted). “The
summary judgment standard requires the trial court to construe evidence in the light most favorable to the nonmoving party.” Draughon v. Evening Star Holiness Church
of Dunn, 374 N.C. 479, 482 (2020).
26. The moving party “bears the initial burden of demonstrating the absence of
a genuine issue of material fact.” Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571,
579 (2002). If the moving party carries this burden, the opposing party “may not rest
upon the mere allegations or denials of his pleading,” N.C. R. Civ. P. 56(e), but must
instead “come forward with specific facts establishing the presence of a genuine
factual dispute for trial.” Liberty Mut. Ins., 356 N.C. at 579.
27. “Affirmative summary judgment on a party’s own claims for relief carries an
even greater burden.” Faw v. Wilkes Sombrero, Inc., 2021 NCBC LEXIS 114, at *21
(N.C. Super. Ct. Dec. 16, 2021) (citing Brooks v. Mount Airy Rainbow Farms Ctr., Inc.,
48 N.C. App. 726, 728 (1980)). The movant “must show that there are no genuine
issues of fact, that there are no gaps in his proof, that no inferences inconsistent with
his recovery arise from the evidence, and that there is no standard that must be
applied to the facts by the jury.” Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719,
721 (1985).
28. Where a party against whom summary judgment is sought fails to respond
to the opposing party’s motion, “summary judgment, if appropriate, shall be entered
against him.” N.C. R. Civ. P. 56(e). If the nonmoving party fails to produce evidence
demonstrating that it would survive summary judgment at trial, including by failing
to file anything in opposition to a motion for summary judgment, then summary
judgment will properly be granted to the movant. See Johnson v. Nash Cmty. Coll., No. COA09-57, 2010 N.C. App. LEXIS 672, at *11–14 (N.C. Ct. App. 2010)
(unpublished) (holding that because the nonmovant did not submit any evidence in
response to a motion for summary judgment that would show the existence of a
genuine issue of material fact, and made no argument that the movant’s evidence was
insufficient to shift the burden, summary judgment was properly granted against the
nonmovant).
III.
ANALYSIS
29. Plaintiff moves the Court to grant summary judgment as to its First, Second,
Fourth, Fifth, and Sixth Claims for Relief pursuant to Rule 56. (Pl.’s Br. Supp. MSJ.)
The Court will address each claim in turn.
A. Breach of Fiduciary Duty
30. Plaintiff’s First Claim asserts breach of fiduciary duty against Defendants
Williams and Johnson. (Compl. ¶¶ 35–41.) Plaintiff argues that Williams and
Johnson owed MSI fiduciary duties by virtue of their positions as director and officers,
respectively. (Compl. ¶¶ 36–37.) Plaintiff further argues that Williams and Johnson
breached those fiduciary duties by (i) competing with MSI in the multifamily property
management sector; (ii) usurping corporate opportunities by diverting MSI’s clients
to Presken; and (iii) failing to act in MSI’s best interests to retain current clients.
(Compl. ¶ 38.)
31. “To establish a claim for breach of fiduciary duty, a plaintiff must show that:
(1) the defendant owed the plaintiff a fiduciary duty; (2) the defendant breached that fiduciary duty; and (3) the breach of fiduciary duty was a proximate cause of injury
to the plaintiff.” Sykes v. Health Network Sols., Inc., 372 N.C. 326, 339 (2019) (citing
Green v. Freeman, 367 N.C. 136, 141 (2013)). Accordingly, the Court’s initial inquiry
must be whether Williams or Johnson owed MSI any fiduciary duty.
32. “It is elementary that directors of a corporation owe fiduciary duties to the
corporation.” Cone v. Blue Gem, Inc., 2023 NCBC LEXIS 127, at *53 (N.C. Super. Ct.
Oct. 13, 2023). North Carolina law requires that directors discharge those duties “in
good faith; with the care an ordinarily prudent person in a like position would exercise
under similar circumstances; [and] in a manner the director reasonably believes to
be in the best interests of the corporation.” N.C.G.S. § 55-8-30(a)(1–3) (cleaned up).
33. Additionally, “[o]fficers of a corporation owe a fiduciary duty to the
corporation.” Brady v. Prince, 2015 NCBC LEXIS 5, at *46 (N.C. Super. Ct. Jan. 7,
2015) (citations omitted). “Under North Carolina law corporate officers must act in
a manner they reasonably believe to be in the best interests of the corporation.”
Brady, 2015 NCBC LEXIS 5, at *47 (citing N.C.G.S. § 55-8-42). Similar to directors,
officers must discharge their duties “in good faith; with the care an ordinarily prudent
person in a like position would exercise under similar circumstances; and in a manner
he reasonably believes to be in the best interests of the corporation.” N.C.G.S. § 55-8-42(a)(1–3) (cleaned up).
34. Williams served as Senior Vice President of Affordable Housing, a director
and officer of MSI, from 2013 until her eventual departure in 2023. (Jameyson Decl.
¶ 7.) Johnson served as Regional Vice President, an officer of MSI, from 2021 to 2023. (Jameyson Decl. ¶¶ 18, 31.) Johnson does not dispute that, during that period, she
was an officer of MSI. (See Compl. ¶ 22; Johnson Ans. ¶ 22.) The Court therefore
concludes that both Williams and Johnson owed fiduciary duties to MSI.
35. Plaintiff argues in its Motion that a de facto fiduciary relationship existed
between itself and Johnson based on Johnson’s level of control over the Six Properties
and her intimate access to information regarding MSI’s business practices. (See Pl.’s
Br. Supp. MSJ.) Because Johnson admitted that she was an officer of MSI during the
relevant time period, and therefore owed de jure fiduciary duties to MSI, the Court
need not analyze whether a de facto fiduciary relationship existed.
36. Having concluded that both Williams and Johnson owed fiduciary duties to
MSI, the Court now turns to whether, and how, those duties were breached by either
party.
37. “Corporate officers and directors are not permitted to use their position of
trust and confidence to further their private interests.” Meiselman v. Meiselman, 309
N.C. 279, 308 (1983) (citing Guth v. Loft, Inc., 23 Del. Ch. 255, 270 (1939)). “[I]n
[determining] whether a corporate fiduciary [has] usurped a corporate opportunity”
in violation of their fiduciary duty, a court must “examine not only whether the
disputed opportunity is functionally related to the corporation’s business, but also
whether the corporation has an interest or expectancy in the opportunity.”
Meiselman, 309 N.C. at 311.
38. The disputed opportunities in question in this case are the management
contracts with the Six Properties. These management contracts were clearly related to MSI’s business as a multifamily property management company. MSI also clearly
had an expectancy in the opportunity, as it had existing management contracts with
each of the Six Properties that would have presumably continued but for Williams
and Johnson’s actions. This expectancy is bolstered by the fact that none of the Six
Properties had complained or otherwise indicated to MSI that they intended to cut
their contracts short until the Termination Notices were sent.
39. Rather than limiting Presken to servicing single-family properties, which
Williams knew MSI did not service, or multifamily properties not already managed
by MSI, Williams used her knowledge of MSI’s business to lure the Six Properties—
which were already satisfactorily managed by MSI—into terminating their contracts
and moving to Presken. (See supra ¶¶ 11–17.) This constituted abuse of MSI’s trust
and confidence in Williams in order for Williams to further the private interest of
advancing her company, Presken.
40. Johnson also abused the position of trust and confidence bestowed on her by
MSI in violation of her fiduciary duties as an officer. Johnson, as Regional Vice
President, was entrusted with representing MSI at board meetings and supervising
the properties she oversaw without oversight from MSI. (Jameyson Decl. ¶¶ 21–25.)
Rather than furthering MSI’s best interests as her fiduciary duties required, Johnson
accepted a position with a competing entity, Presken, and subsequently allowed
Williams to attend the Meeting and solicit Topeka Heights to join Presken without
informing MSI. In putting the private interests of enriching her future employer ahead of MSI’s interest in retaining its clients, Johnson breached the fiduciary duties
she owed to MSI by virtue of her position as an officer.
41. Neither Williams’s representative nor Johnson has made any attempt to
dispute the facts alleged by Plaintiff supporting the cause of action for breach of
fiduciary duty against them. Taking the facts alleged in the light most favorable to
Williams and Johnson, no genuine dispute exists as to any material fact underlying
the breach of fiduciary claims against Williams and Johnson. As a direct result of
Williams and Johnson’s actions, each of the Six Properties terminated their
management contracts with MSI in August 2023. The termination of these contracts
ultimately cost MSI $542,000.00 in lost profits. (Damages Report.)
42. Accordingly, the Motion is GRANTED as to Plaintiff’s First Claim for
breach of fiduciary duty against Williams and Johnson.
B. Tortious Interference with Contract
43. Plaintiff’s Second Claim asserts tortious interference with contract against
Defendants Williams and Johnson. (Compl. ¶¶ 43–47.) Plaintiff argues that
Williams and Johnson intentionally diverted the Six Properties to Presken and
prevented them from maintaining their existing contracts with MSI. (Compl. ¶ 43.)
44. A successful claim for tortious interference with contract requires: (1) a valid
contract between the plaintiff and a third party; (2) the defendant’s knowledge of that
contract; (3) the defendant intentionally inducing the third party not to perform on
its contract with the plaintiff; (4) the defendant doing so without justification; and (5)
the interference resulting in actual damage to the plaintiff. Beverage Sys. of the Carolinas, LLC v. Associated Beverage Repair, LLC, 368 N.C. 693, 700 (2016) (citing
United Labs., Inc. v. Kuykendall, 322 N.C. 643, 661 (1988)).
45. “A party’s interference is ‘without justification’ when it is ‘not reasonably
related to the protection of a legitimate business interest,’ but is instead motivated
solely by malice[.]” Charah, LLC v. Sequoia Servs., LLC, 2020 NCBC LEXIS 32, at
*14 (N.C. Super. Ct. Apr. 17, 2020) (citing Privette v. Univ. of N.C. at Chapel Hill, 96
N.C. App. 124, 134 (1989) and Peoples Sec. Life Ins. Co. v. Hooks, 322 N.C. 216, 221
(1988)) (cleaned up). “The malice required to sustain a tortious interference claim is
legal, not actual, malice.” Charah, 2020 NCBC LEXIS 32, at *14–15 (citing Childress
v. Abeles, 240 N.C. 667, 675 (1954)). “A person acts with legal malice if he does a
wrongful act or exceeds his legal right or authority in order to prevent the
continuation of the contract between the parties.” Varner v. Bryan, 113 N.C. App.
697, 702 (1994).
46. It is undisputed that valid contracts existed between MSI and each of the
Six Properties. (See MSI Contracts.) It is further undisputed that Williams and
Johnson knew of these contracts by virtue of their positions with MSI. Therefore, the
Court must now examine whether Williams and Johnson intentionally induced the
Six Properties not to perform on the remainder of their contracts with MSI and, if so,
whether they were legally justified in doing so.
47. Williams clearly intended to induce the Six Properties to terminate their
contracts with MSI. This is evidenced not only by the conversations Williams had
with five of the properties prior to the Meeting, but also by her conversations with Johnson and her presentation on behalf of Presken at the Meeting. It is further
evidenced by Williams’s circulation of the Termination Notices. Therefore, the only
issue that remains is whether that interference was legally justified.
48. One legal justification for interference with existing contracts is regular
competition within an industry. See Charah, 2020 NCBC LEXIS 32, at *16 (stating
that “establishing a competing business is a legitimate business motive”). However,
committing a wrongful act or exceeding legal authority to engage in competition will
result in a finding of legal malice. Here, Williams committed the wrongful act of
violating her fiduciary duty to MSI and soliciting all of the Six Properties to terminate
their contracts with MSI while still employed by MSI. These acts were carried out
behind MSI’s back and the contracts were terminated without warning. Therefore,
Williams’s interference was committed with legal malice.
49. Johnson also acted intentionally to induce Topeka Heights to terminate its
management contract with MSI. While she was not present for Williams’s solicitation
of five of the Six Properties prior to the Meeting, Johnson actively participated in the
interference with Topeka Heights’s contract with MSI. Johnson invited Williams to
the Meeting and allowed her to present on behalf of Presken, knowing that Williams
planned to solicit Topeka Heights to terminate its existing contract with MSI and
enter into a contract with Presken. This invitation, and the accompanying
nondisclosure to MSI, by Johnson constituted an intentional act designed to induce
Topeka Heights not to perform on its contract with MSI.
50. Johnson also engaged in these acts without legal justification. Like
Williams, Johnson owed a duty to MSI at the time of the Meeting, and failed to abide
by that duty and act in the best interests of MSI. Instead, Johnson exceeded the
scope of her authority with MSI by inviting Williams to present at the Meeting on
behalf of Presken, and failing to notify MSI of the solicitation at any point, before or
after the Meeting. Therefore, Johnson’s acts were committed with legal malice that
negates any potential justification for her interference with Topeka Heights’s
contract with MSI.
51. The undisputed record reveals that Williams acted intentionally to induce
the Six Properties not to perform on the remainder of their contracts with MSI, and
to instead enter into management contracts with Presken. Johnson acted
intentionally to induce Topeka Heights not to perform on the remainder of its contract
with MSI. Both Williams and Johnson did so intentionally, with legal malice, and
without justification.
52. Accordingly, the Motion is GRANTED as to Plaintiff’s Second Claim for
tortious interference with contract against Williams and Johnson.
C. Constructive Fraud
53. Plaintiff’s Fourth Claim asserts constructive fraud against Defendants
Williams and Johnson. (Compl. ¶¶ 61–64.) Plaintiff alleges that Williams and
Johnson took advantage of their positions and breached the fiduciary duties they
owed to MSI in an effort to enrich themselves. (Compl. ¶¶ 62–63.)
54. “Constructive fraud arises where a confidential or fiduciary relationship
exists, and its proof is less exacting than that required for actual fraud.” Head, 371
N.C. at 9. “When a fiduciary relation[ship] exists between parties to a transaction,
equity raises a presumption of fraud when the superior party obtains a possible
benefit.” Watts, 317 N.C. at 116 (1986) (citing 37 Am. Jur. 2d Fraud and Deceit § 442,
at 602 (1968)). A plaintiff asserting constructive fraud “must allege facts and
circumstances ‘(1) which created the relation of trust and confidence, and (2) led up
to and surrounded the consummation of the transaction in which defendant is alleged
to have taken advantage of his position of trust to the hurt of plaintiff.’” Watts v.
Cumberland Cnty. Hosp. Sys., Inc., 317 N.C. 110, 116 (1986) (quoting Rhodes v. Jones,
232 N.C. 547, 549 (1950)).
55. The undisputed facts show that both Williams and Johnson owed fiduciary
duties to MSI during the relevant time period, as the Court concluded earlier. (See
supra ¶ 34.) Therefore, there is a presumption of constructive fraud if Williams and
Johnson obtained any conceivable benefit through abuse of their fiduciary
relationships with MSI.
56. MSI trusted Williams and Johnson to participate in unmonitored board
meetings with each of the Six Properties on MSI’s behalf based on these fiduciary
relationships. MSI further entrusted Williams and Johnson to maintain the
relationships between MSI and each of the Six Properties, as well as all other
properties overseen by Williams or Johnson within the scope of their duties as officers
and/or directors.
57. Williams’s position as Vice President of Affordable Housing placed her in a
unique position of confidence and trust within MSI. As a director and officer of the
company, MSI entrusted Williams with overseeing all of MSI’s affordable managed
properties, which included not only the Six Properties which followed Williams to
MSI initially, but all other preexisting affordable housing contracts and properties.
(Jameyson Decl. ¶ 10.) The combination of MSI’s trust in Williams and Williams’s
unsupervised interactions with the properties she oversaw afforded Williams the
opportunity to coerce the Six Properties to terminate their contracts with MSI.
58. Johnson was also in a unique position of trust and confidence within MSI.
As Regional Vice President, Johnson was entrusted with serving as a liaison between
MSI and several multifamily properties it managed, including five of the Six
Properties. “MSI entrusted [Johnson] with the authority to address the boards of the
Six Properties on MSI’s behalf without oversight.” (Jameyson Decl. ¶ 25.)
59. Williams and Johnson used the Meeting as an opportunity to take
advantage of the trust and confidence bestowed on them by MSI and persuade Topeka
Heights to abandon its management contract with MSI in favor of Presken. It is
undisputed that Williams, as owner of Presken, and Johnson, as President, would
obtain a benefit as a result of the actions described herein. Neither Williams’s
representative nor Johnson have offered any evidence rebutting the material facts
established by Plaintiff’s evidence. Therefore, the Court concludes that Williams and
Johnson engaged in constructive fraud.
60. Accordingly, the Motion is GRANTED as to Plaintiff’s Fourth Claim for
constructive fraud against Williams and Johnson.
D. Civil Conspiracy
61. Plaintiff’s Fifth Claim asserts civil conspiracy against all Defendants.
(Compl. ¶¶ 66–67.) Plaintiff alleges that Williams and Johnson, while still employed
by MSI, conspired to harm MSI by luring its clients to Presken. (Compl. ¶ 66.)
62. “Civil conspiracy comprises three elements: (1) a conspiracy; (2) wrongful
actions taken by at least one of the conspirators in furtherance of that conspiracy;
and (3) injury to the plaintiff as a result.” Hui Zhang v. CapitalNexus, LLC, 2026
NCBC LEXIS 133, at *97 (N.C. Super. Ct. June 25, 2026). “[T]here is not a separate
civil action for civil conspiracy in North Carolina.” Dove v. Harvey, 168 N.C. App.
687, 690 (2005). “Only where there is an underlying claim for unlawful conduct can
a plaintiff state a claim for civil conspiracy by also alleging the agreement of two or
more parties to carry out the conduct and injury resulting from that agreement.”
Toomer v. Garrett, 155 N.C. App. 462, 483 (2002).
63. In sum, to succeed in a claim for civil conspiracy, the undisputed facts must
show that (1) an underlying claim for unlawful conduct exists and (2) the Defendants
agreed to carry out the conduct resulting in that underlying claim. Here, the first
requirement is satisfied by the established claims for breach of fiduciary duty and
tortious interference against Williams and Johnson. (See supra Sections III(A)–(B).)
Therefore, the Court must now determine whether there was an agreement by all Defendants to carry out the conduct which resulted in the breach of fiduciary duty
and/or tortious interference claims.
64. The facts supporting the cause of action for tortious interference also tend
to support a cause of action for civil conspiracy against the Defendants. In July 2023,
Williams informed Johnson that she was leaving MSI to focus on Presken, and that
she had already solicited five of the Six Properties to terminate their contracts with
MSI and enter into new contracts with Presken following her departure. (Johnson
Dep. at 18:10–13; 19:6–14.) By failing to notify MSI of these unlawful acts by
Williams, Johnson manifested an agreement to participate in the conduct underlying
the tortious interference claim.
65. Johnson not only assented to the unlawful conduct previously engaged in by
Williams, but proceeded to actively participate in the interference with Topeka
Heights’s contract with MSI during the Meeting. Johnson allowed Williams to solicit
Topeka Heights without notifying MSI at any point before, during, or after the
Meeting. (See Johnson Dep. at 25:15–23.) This conduct also tends to support an
agreement by Williams and Johnson to mutually breach the fiduciary duties owed to
MSI by virtue of their positions as director and officers, respectively.
66. While it is not necessary that Presken itself committed any act in
furtherance of the underlying breach of fiduciary duty or tortious interference claims
to conclude that Presken engaged in civil conspiracy with Williams and Johnson,
evidence of Presken’s agreement can be found in the undisputed record. First,
Johnson, in her capacity as President of Presken, admitted that she believed Presken was responsible for preparing the Termination Notices that were distributed via email by Williams. (See Presken Dep. at 23:17–25.) This is clear evidence of Presken’s
agreement to participate in the conduct underlying the tortious interference claims
against Williams and Johnson. Presken further manifested agreement with the
unlawful acts of Williams and Johnson by knowingly entering into contracts with
each of the Six Properties following the termination of their agreements with MSI.
(See Jameyson Decl. ¶ 30; Notices.)
67. Williams engaged in wrongful acts in furtherance of the conspiracy to
commit tortious interference by soliciting each of the Six Properties, and Johnson, to
leave MSI to join Presken. Johnson engaged in wrongful acts in furtherance of the
conspiracy by participating in the solicitation of Topeka Heights to join Presken while
still serving as an officer of MSI. The conspiracy engaged in by Williams and Johnson
sought to benefit each of them individually, and Presken as an entity.
68. Williams’s representative, Johnson, and Presken have made no attempt to
dispute the facts alleged by Plaintiff supporting the cause of action for civil conspiracy
against them. The undisputed facts taken in the light most favorable to the
Defendants reveal that the Defendants conspired to interfere with Topeka Heights’s
management contract with MSI, and ultimately to cause the Six Properties to
terminate their contracts with MSI and enter into contracts with Presken. The
termination of these contracts ultimately damaged MSI in the amount of $542,000.00
in lost profits. (Damages Report.)
69. Accordingly, the Motion is GRANTED as to Plaintiff’s Fifth Claim for civil
conspiracy against all Defendants.
E. Unfair and Deceptive Trade Practices
70. Plaintiff’s Sixth Claim asserts violations of N.C.G.S. § 75-1.1, the North
Carolina Unfair and Deceptive Trade Practices Act, against all Defendants. (Compl.
¶¶ 69–70.) Plaintiff argues that Defendants “[used] MSI’s own officers and director
to vouch for Presken and facilitate the covert acquisition of the Six Properties” in
violation of N.C.G.S. § 75-1.1. (Pl.’s Br. Supp. MSJ.)
71. “Unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C.G.S.
§ 75-1.1(a). “‘[C]ommerce’ includes all business activities, however denominated[.]”
N.C.G.S. § 75-1.1(b).
72. “To prevail on a claim of [UDTP] a plaintiff must show (1) an unfair or
deceptive act or practice, or an unfair method of competition, (2) in or affecting
commerce, (3) which proximately caused actual injury to the plaintiff or to his
business.” Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 460–61 (1991) (citing
N.C.G.S. §§ 75-1.1 and 75-16). “North Carolina case law has held that conduct which
constitutes a breach of fiduciary duty and constructive fraud is sufficient to support
a UDTP claim.” Compton v. Kirby, 157 N.C. App. 1, 20 (2003).
73. Similar to Plaintiff’s claim for civil conspiracy (see supra Section III(D)), the
successful underlying claims for breach of fiduciary duty and constructive fraud
against Defendants Williams and Johnson will likewise be sufficient to constitute an unfair or deceptive trade practice for purposes of N.C.G.S. § 75-1.1. See Compton,
157 N.C. App. at 20. However, there exists no underlying claim on which to support
a claim for UDTP against Defendant Presken. Therefore, the Court must analyze
whether Presken, as an entity, engaged in conduct constituting an unfair or deceptive
trade practice.
74. The undisputed record shows that Presken, via its owner, Williams, and its
soon-to-be President, Johnson, engaged in unfair methods of competition by inducing
each of the Six Properties to terminate existing contracts with MSI to subsequently
enter into management contracts with Presken.
75. In order for an act to be “in or affecting commerce,” the conduct must occur
in interactions between market participants. See White v. Thompson, 364 N.C. 47,
52 (2010) (“[T]he General Assembly indicated through its original statement of
purpose that the Act was designed to achieve fairness in dealings between individual
market participants.”) (emphasis added). In other words, internal conduct within a
single market participant is not considered in or affecting commerce. See generally
id. at 53–54.
76. The conduct of Presken, a market participant, in inducing each of the Six
Properties to terminate their contracts with MSI, another market participant, falls
squarely within the parameters set forth in White and is therefore considered “in or
affecting commerce” for purposes of N.C.G.S. § 75-1.1.
77. The conduct of Williams and Johnson was not confined to a single market
participant, but involved self-dealing benefiting Presken, an entity in which they were owners or had an expected interest. This is sufficient for their conduct to be in
or affecting commerce. See Sara Lee Corp. v. Carter, 357 N.C. 27, 32–33 (1999)
(finding that a fiduciary’s self-dealing for the benefit of other companies he owned
was considered in or affecting commerce).
78. Further, Presken’s unfair competition practices with respect to MSI and the
Six Properties caused actual injury to MSI in the form of lost profits. (See Damages
Report.) Therefore, the Court concludes that Presken engaged in UDTP in violation
of N.C.G.S. § 75-1.1.
79. Accordingly, the Motion is GRANTED as to Plaintiff’s Sixth Claim for
UDTP against all Defendants.
IV.
CONCLUSION
80. In conclusion, the Court finds that, construing the evidence in the light most
favorable to Defendants as the nonmoving parties, no genuine issue of material fact
exists as to Plaintiff’s claims that:
1. Defendants Williams and Johnson breached the fiduciary duties owed
to MSI;
2. Defendant Williams tortiously interfered with each of the Six Properties’
contracts with MSI, and Defendant Johnson tortiously interfered with
Topeka Heights’s contract with MSI;
3. Defendants Williams and Johnson engaged in constructive fraud;
4. Defendants engaged in civil conspiracy to commit tortious interference
with contract; and
5. Defendants engaged in unfair or deceptive trade practices in violation of
N.C.G.S. § 75-1.1.
81. The Court notes that the damages sought by Plaintiff in each claim for relief
are duplicative. Each claim, with the exception of the Sixth Claim for unfair or
deceptive trade practices in violation of N.C.G.S. § 75-1.1, seeks damages in the
amount of lost profits for each of the Six Properties’ contracts with MSI, totaling
$542,000.00. (Damages Report.) While the Court concluded that Johnson only
engaged in tortious interference with contract as to Topeka Heights’s contract with
MSI, Johnson nonetheless is liable for the full amount detailed in the Damages
Report. This liability stems from the remaining claims, including Johnson’s liability
for the First Claim for breach of fiduciary duty and Fifth Claim for civil conspiracy.
82. WHEREFORE, the Court GRANTS the Motion and judgment is hereby
ENTERED in favor of Plaintiff on its First Claim for breach of fiduciary duty, Second
Claim for tortious interference with contract, Fourth Claim for constructive fraud,
Fifth Claim for civil conspiracy, and Sixth Claim for unfair or deceptive trade
practices in violation of N.C.G.S. § 75-1.1.
83. Damages shall be awarded to Plaintiff against Defendants in the amount of
$542,000.00. Those damages shall be trebled pursuant to N.C.G.S. § 75-16 to
$1,626,000.00.
84. Plaintiff’s Third Claim for misappropriation of trade secrets is not resolved
by this Order and Opinion.
SO ORDERED, this the 28th day of October, 2026.
/s/ A. Graham Shirley
A. Graham Shirley
Special Superior Court Judge
for Complex Business Cases