WINDOW WORLD OF BATON ROUGE, LLC v. WINDOW WORLD, INC.; WINDOW WORLD OF ST. LOUIS, INC. v. WINDOW WORLD, INC., 2024 NCBC 79

STATE OF NORTH CAROLINA
WILKES COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
15 CVS 1
WINDOW WORLD OF BATON
ROUGE, LLC; WINDOW WORLD OF
DALLAS, LLC; WINDOW WORLD
OF TRI STATE AREA, LLC; and
JAMES W. ROLAND,
Plaintiffs,
v.
WINDOW WORLD, INC.; WINDOW
WORLD INTERNATIONAL, LLC;
and TAMMY WHITWORTH,
Defendants.
ORDER AND OPINION ON CROSS-
MOTIONS FOR SUMMARY
JUDGMENT, DEFENDANT WINDOW
WORLD, INTERNATIONAL, LLC’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT, AND DEFENDANT
TAMMY WHITWORTH’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT [PUBLIC VERSION]1
WILKES COUNTY 	15 CVS 2
WINDOW WORLD OF ST. LOUIS,
INC.; WINDOW WORLD OF
KANSAS CITY, INC.; WINDOW
WORLD OF SPRINGFIELD/PEORIA,
INC.; JAMES T. LOMAX III;
JONATHAN GILLETTE; B&E
INVESTORS, INC.; WINDOW
WORLD OF NORTH ATLANTA,
INC.; WINDOW WORLD OF
CENTRAL ALABAMA, INC.;
MICHAEL EDWARDS; MELISSA
EDWARDS; WINDOW WORLD OF
CENTRAL PA, LLC; ANGELL P.
1 Recognizing that this Order and Opinion cites and discusses the subject matter of
documents that the Court has allowed to remain filed under seal in these actions, the Court
elected to file this Order and Opinion under seal on 26 November 2024. The Court then
permitted the parties an opportunity to propose redactions to the public version of this
document. Plaintiffs and Defendant Tammy Whitworth did not propose any redactions. The
Court has accepted the redactions currently proposed by Defendants Window World, Inc. and
Window World International, LLC.
Window World of Baton Rouge, LLC v. Window World, Inc.; Window World of St.
Louis, Inc. v. Window World, Inc., 2024 NCBC 79.

WESNER-FORD; KENNETH R.
FORD, JR.; WORLD OF WINDOWS
OF DENVER, LLC; RICK D. ROSE;
CHRISTINA M. ROSE; WINDOW
WORLD OF LEXINGTON, INC.;
TOMMY R. JONES; JEREMY T.
SHUMATE; WINDOW WORLD OF
PHOENIX LLC; JAMES BALLARD;
and TONI BALLARD,
Plaintiffs,
and
WINDOW WORLD OF ROCKFORD,
INC.; WINDOW WORLD OF JOLIET,
INC.; SCOTT A. WILLIAMSON;
JENNIFER L. WILLIAMSON; and
BRIAN C. HOPKINS,
Plaintiffs and
Counterclaim
Defendants,
v.
WINDOW WORLD, INC.; WINDOW
WORLD INTERNATIONAL, LLC;
and TAMMY WHITWORTH,
individually and as trustee of the
Tammy E. Whitworth Revocable
Trust,
Defendants and
Counterclaim
Plaintiffs,
v.
WINDOW WORLD OF
BLOOMINGTON, INC.,
Counterclaim
Defendant.

1. 	THIS MATTER is before the Court on the following motions for summary
judgment under Rule 56 of the North Carolina Rules of Civil Procedure (the “Rule(s)”)
in the above-captioned cases:
a. 	Defendants Window World, Inc., Window World International, LLC, and
Tammy 	Whitworth’s 	Motion 	for 	Summary 	Judgment 	(“Defendants’
Motion”)2;
b. 	Plaintiffs’ Motion for Partial Summary Judgment (“Plaintiffs’ Motion”;
together with Defendants’ Motion, the “Cross-Motions”)3;
c. 	Defendant 	Window 	World 	International, 	LLC’s 	Motion 	for 	Partial
Summary Judgment Seeking Dismissal of Certain Plaintiffs’ Claims Under
the NCUVTA (“WWI’s Motion”)4; and
d. 	Defendant Tammy Whitworth’s Motion for Partial Summary Judgment on
Plaintiffs’ Attempt to Impose Liability Arising Out of N.C.G.S. § 75-1.1 Due
to Lack of In-State Injury (“Whitworth’s Motion”; collectively with the
Cross-Motions and WWI’s Motion, the “Motions”).5
2 (Defs.’ Mot. Summ. J. [hereinafter “Defs.’ Mot.”], ECF No. 973.) 	By default, the Court’s
citations will be to documents filed in Window World of Baton Rouge, LLC v. Window World,
Inc. (15-CVS-1); the Court will specify citations made to documents filed in Window World of
St. Louis, Inc. v. Window World, Inc. (15-CVS-2) where applicable.
3 (Pls.’ Mot. Partial Summ. J. [hereinafter “Pls.’ Mot.”], ECF No. 975.)
4 (Window World International, LLC’s Mot. Partial Summ. J. Seeking Dismissal Certain Pls.’
Claims Under NCUVTA [hereinafter “WWI’s Mot.”], 15-CVS-2 ECF No. 746.)
5 (Tammy Whitworth’s Mot. Partial Summ. J. Pls.’ Attempt Impose Liability Arising Out
N.C.G.S. § 75-1.1 Due Lack In-State Injury [hereinafter “Whitworth’s Mot.”], ECF No. 711.)

2. 	Having considered the Motions, the parties’ briefs in support of and in
opposition to the Motions, the parties’ cited evidence, the arguments of counsel at the
hearing on the Motions, and other appropriate matters of record, the Court hereby
GRANTS in part and DENIES in part the Motions as set forth below.
Brooks, Pierce, McLendon, Humphrey, & Leonard, by Robert J. King,
Charles E. Coble, Benjamin R. Norman, Andrew L. Rodenbough, Bryan
Starrett, and Jeffrey E. Oleynik, and Keogh, Cox & Wilson, Ltd., by John
P. Wolff, III, Richard W. Wolff, and Virginia Jordan McLin, for Plaintiffs
Window World of Baton Rouge, LLC, Window World of Dallas, LLC,
Window World of Tri State Area LLC, James W. Roland, Window World
of St. Louis, Inc., Window World of Kansas City, Inc., Window World of
Springfield/Peoria, Inc., James T. Lomax III, Jonathan Gillette, B&E
Investors, Inc., Window World of North Atlanta, Inc., Window World of
Central Alabama, Inc., Michael Edwards, Melissa Edwards, Window
World of Central PA, LLC, Angell P. Wesner-Ford, Kenneth R. Ford, Jr.,
World of Windows of Denver, LLC, Rick D. Rose, Christina M. Rose,
Window World of Rockford, Inc., Window World of Joliet, Inc., Scott A.
Williamson, Jennifer L. Williamson, Brian C. Hopkins, Window World
of Lexington, Inc., Tommy R. Jones, Jeremy T. Shumate, Window World
of Phoenix LLC, James Ballard, and Toni Ballard.
Fox Rothschild LLP, by Matthew N. Leerberg, Kip D. Nelson, Troy D.
Shelton, and Elizabeth S. Hedrick, and Manning, Fulton & Skinner,
P.A., by Michael T. Medford, Judson A. Welborn, Natalie M. Rice, and
Jessica B. Vickers, for Defendants Window World, Inc. and Window
World International, LLC.
Bell, Davis & Pitt, P.A., by Alan M. Ruley and Andrew A. Freeman, for
Defendant Tammy Whitworth.
Bledsoe, Chief Judge.
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 parties, is intended only to provide context for
the Court’s analysis and ruling and not to resolve issues of material fact.
4. 	Defendant Window World, Inc. (“Window World”) is a replacement window
and exterior remodeling company incorporated in North Carolina and headquartered
in Wilkes County.6 Through a network of independently owned and operated stores,
Window World “sell[s] and install[s] vinyl replacement windows, doors and siding,
and related accessories to the public.”7 Defendant Window World International, LLC
(“WWI”) is a Delaware limited liability company with its principal place of business
in Wilkes County, North Carolina.8 	WWI is a holding company whose primary
purpose is to own and manage the Window World trademarks.9 Defendant Tammy
6 (15-CVS-1 Third Am. Compl. ¶ 15, ECF No. 252 (sealed), 257 (redacted); 15-CVS-2 Third
Am. Compl. ¶ 50, ECF No. 275 (sealed), 280 (redacted); see also, e.g., Defs.’ Mot. Ex. 2,
2.App.16425 (Window World of Phoenix, AZ – May 2006 Licensing Agreement) [hereinafter
“Defs.’ 2d App.”], ECF No. 973.2 (sealed).) Pinpoint citations to Defendants’ appendices will
be to the page number listed on the appendices themselves. (See Defs.’ Mot. Exs. 1–3, ECF
Nos. 973.1–.3 (sealed).).
7 (15-CVS-1 Third Am. Compl. ¶ 18; 15-CVS-2 Third Am. Compl. ¶ 53; see also, e.g., Defs.’ 2d
App. 2.App.16425 (Window World of Phoenix, AZ – May 2006 Licensing Agreement).)
8 (15-CVS-1 Third Am. Compl. ¶ 16; 15-CVS-2 Third Am. Compl. ¶ 51; see also, e.g., Defs.’ 2d
App. 2.App.17705 (Corrected Rebuttal Report of Terence E. Rodgers, PhD).)
9 (See e.g., 15-CVS-1 Third Am. Compl. ¶¶ 77, 288–89; 15-CVS-2 Third Am. Compl. ¶¶ 299–
300; see also Defs.’ Mot. Ex. 1, 1.App.16157 (Zachary Luffman) [hereinafter “Defs.’ 1st App.”],
ECF No. 973.1 (sealed).) 	Defendants’ first appendix is a compilation of depositions taken
during the course of discovery. For ease of reference, the Court will cite to appendix pages
and state to whom the deposition excerpt is attributed.

Whitworth (“Ms. Whitworth”) is Window World’s CEO and the sole owner of both
Window World and WWI.10
5. 	Plaintiffs are current franchisees of Window World.11 	They purchase
“products (including vinyl replacement windows, doors and siding, and related
accessories) at wholesale [from Window World-designated suppliers] and then sell
and install them at retail under the ‘Window World’ name.”12 	Window World
“licenses use of the ‘Window World’ trademark and other associated trademarks to [ ]
franchisees.”13
6. 	For purposes of these Motions, Plaintiffs are organized into eight groups
based on franchise ownership and location: (i) Window World of Baton Rouge, LLC,
Window World of Dallas, LLC, Window World of Tri State Area, LLC, and James W.
Roland (the “Roland Plaintiffs”); (ii) Window World of St. Louis, Inc., Window World
of Kansas City, Inc., Window World of Springfield/Peoria, Inc., James T. Lomax, III,
and Jonathan Gillette (the “Lomax/Gillette Plaintiffs”; together with the Roland
Plaintiffs, the “Tolling Plaintiffs”); (iii) B&E Investors, Inc., Window World of North
Atlanta, Inc., Window World of Central Alabama, Inc., Michael Edwards, and Melissa
Edwards (the “Edwards Plaintiffs”); (iv) Window World of Central PA, LLC, Angell
10 (15-CVS-1 Third Am. Compl. ¶ 199; Volume Two Pls.’ Dep. Excerpts, Ex. XX, Zachary
Luffman 2018 Dep. 84:14–15, ECF No. 985.24 (sealed); 15-CVS-2 Third Am. Compl. Ex. C,
ECF No. 275.1 (sealed), 280.1 (redacted); 15-CVS-2 Third Am. Compl. ¶ 298.)
11 (15-CVS-1 Third Am. Compl. ¶ 2; 15-CVS-2 Third Am. Compl. ¶ 2; see also Defs.’ 2d App.
2.App.16425–16913 (Licensing Agreements).)
12 (15-CVS-1 Third Am. Compl. ¶ 20; 15-CVS-2 Third Am. Compl. ¶ 55.)
13 (15-CVS-1 Third Am. Compl. ¶ 20; 15-CVS-2 Third Am. Compl. ¶ 55.)

P. Wesner-Ford, and Kenneth R. Ford, Jr. (the “Ford Plaintiffs”); (v) World of
Windows of Denver, LLC, Rick D. Rose, and Christina M. Rose (the “Rose Plaintiffs”);
(vi) 	Window 	World 	of 	Rockford, 	Inc., 	Window 	World 	of 	Joliet, 	Inc., 	Scott 	A.
Williamson, Jennifer L. Williamson, and Brian C. Hopkins (the “Williamson/Hopkins
Plaintiffs”); (vii) Window World of Lexington, Inc., Tommy R. Jones, and Jeremy T.
Shumate (the “Jones/Shumate Plaintiffs”); and (viii) Window World of Phoenix, LLC,
James Ballard, and Toni Ballard (the “Ballard Plaintiffs”; together with the Edwards,
Ford, Rose, Williamson/Hopkins, and Jones/Shumate Plaintiffs, the “Non-Tolling
Plaintiffs”).
7. 	Window World was founded by Leon Whitworth in 1995 as a single store.14
By 1998, however, Window World started licensing use of its trademarks to enable
independent storeowners to operate Window World stores in exclusive territories.15
8. 	To open a Window World store, storeowners were required to pay Window
World an initial licensing fee or, alternatively, a prior storeowner’s debt in lieu of the
licensing fee.16 	In addition to the licensing fees, Window World generated revenue
through supplier rebates on windows and 	sold to the storeowners.17
14 (Defs.’ 2d App. 2.App.17452 (Affidavit of Ruben Leon Whitworth).)
15 (Defs.’ 2d App. 2.App.17454 (Affidavit of Ruben Leon Whitworth).)
16 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 69, ECF No. 1007 (sealed), 1021 (redacted); see also
Volume Four Pls.’ Exs. Ex. 95, ECF No. 980.5 (sealed); Volume Five Pls.’ Exs. Ex. 147A 4–5,
ECF No. 981.29 (sealed); Volume One Pls.’ Dep. Excerpts, Ex. F, Dana Deem 2023 Dep.
49:11–50:25, ECF No. 984.6 (sealed).)
17 (See, e.g., Defs.’ 1st App. 1.App.10020, 10364, 10446 (Howard Blair Ingle); 1.App.10987–
10991 (Tammy Whitworth).)

Storeowners, such as Plaintiffs, would purchase windows and 	from
designated vendors and these vendors, in turn, would pay “rebates” to Window World
on items storeowners purchased. The designated vendors would integrate the rebate
amounts paid to Window World into the prices charged to storeowners.18
9. 	Between 	2001 	and 	2011, 	Plaintiffs 	began 	operating 	Window 	World
locations.19 Plaintiffs state that Leon Whitworth, and later Todd Whitworth, Window
World’s CEO from 2007 to 2010, recruited them to become licensees of the Window
World brand through in-person sales pitches and individual conversations with
Plaintiffs.20 Plaintiffs allege that the Whitworths induced them “to become Window
World dealers [by telling them Window World] would secure the best price on the
windows through [Window World’s] collective buying power” (emphasis added).21
More specifically, Plaintiffs contend they “were told that by joining [Window World]
they would gain access to best pricing, better than could be obtained outside of the
Window World system.”22 	Plaintiffs further allege that they were informed they
18 (See, e.g., Defs.’ 1st App. 1.App.10447–10450 (Howard Blair Ingle).) 	,
(see, e.g., Defs.’ 1st App.
1.App.1199 (James Lomax, III); 1.App.2587 (Jonathan Gillette); 1.App.8174 (Tommy Jones);
1.App.8356 (Jeremy Shumate).).
19 (See Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 3, ECF No. 1008.3.)
20 (See, e.g., Defs.’ 1st App. 1.App.7847 (Scott Williamson); 1.App.8153 (Tommy Jones).)
21 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 9; see also Volume One Pls.’ Exs. Ex. 13, ECF No.
977.14 (sealed).)
22 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 9; see also Volume One Pls.’ Exs. Ex. 14, ECF No.
977.15 (sealed).) 	Window World refers to this base-level “best pricing” available to all
storeowners as “A pricing.” (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 9; see also Defs.’ 1st App.
1.App.14146 (Mark Bumgarner).)

would gain access to even lower pricing if they “met a volume benchmark” set by
Window World.23
10. 	While 	Plaintiffs 	acknowledge 	Window 	World 	informed 	them 	that 	the
company made money through supplier rebates on products sold to the storeowners,
Plaintiffs contend Window World represented to Plaintiffs that “they would pay no
more than $10 per window to [Window World] and that these ‘rebates’ would be
collected and remitted as part of Plaintiffs’ window purchases” (emphasis added).24
11. 	Although 	some 	Plaintiffs 	signed 	a 	written 	“Licensing 	Agreement” 	or
“Franchise Agreement” with Window World immediately upon beginning operations
at a Window World location, other Plaintiffs operated their Window World location
for months before signing a written agreement.25 Similarly, many Plaintiffs operated
23 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 9; see also Volume One Pls.’ Exs. Ex. 13.) Window
World refers to this pricing available to storeowners who meet certain volume benchmarks
as “B pricing.” (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 9; see also Defs.’ 1st App. 1.App.14146
(Mark Bumgarner).)
24 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 10–11; see also Volume One Pls.’ Exs. Ex. 19-1 ¶ 7
(Affidavit of James Ballard), ECF No. 977.20, Ex. 19-4 ¶ 7 (Affidavit of Tommy Jones), ECF
No. 977.20, Ex. 20, ECF No. 977.21 (sealed).) Window World, however, contends the company
did not agree in the written contracts executed with Plaintiffs to limit rebate amounts and
the company was thus “contractually free to change the rebate amounts at any time and
without notice.” (Defs.’ Resp. Pls.’ Mot. Summ. J. 43, ECF No. 1010 (sealed), 1020 (redacted).)
25 (See Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 3.) For instance, though the Jones Plaintiffs
acquired their Lexington, Kentucky store in August or September 2001, they did not sign a
written “Licensing Agreement” until 28 February 2002. (Pls.’ Br. Opp’n Defs.’ Mot. Summ.
J. Ex. 3.) The fact that some Plaintiffs began operations before the written agreements were
signed is important because the parties dispute whether the written agreements or the
parties’ oral agreements and course of dealing govern the nature of the parties’ relationship.

their stores for months, or even years, in the absence of a written agreement after the
end of the initial “Licensing” or “Franchise” Agreement’s term.26
12. 	The written agreements initially signed by Plaintiffs generally classified
Plaintiffs as “Licensees” and Window World as a “Licensor.”27 Although some of the
initial agreements purported to grant a franchise, the agreements did not include any
franchise-related disclosures.28 	In fact, the written agreements signed by most
Plaintiffs between 2008 and 2011 specifically provided the agreements did not create
a franchise relationship:
Nothing in this Licensing Agreement shall be deemed to create any type
of 	partnership, 	employment, 	agency, 	franchise, 	or 	other 	business
relationship other than LICENSOR and LICENSEE. 	The parties
acknowledge and agree that, to the extent the state in which the
LICENSEE 	is 	granted 	its 	license 	has 	enacted 	statutes, 	codes, 	or
regulations which govern franchises, the LICENSEE and LICENSOR
are not subject to such laws and regulations and the LICENSOR shall
not be required to provide any disclosures to LICENSEE other than
those previously made to LICENSEE or made herein. The LICENSEE
agrees 	that 	the 	terms 	of 	the 	Licensing 	Agreement 	and 	the
LICENSOR/LICENSEE 	relationship 	created 	hereunder 	shall 	be
determinative 	of 	the 	rights 	and 	interests 	between 	the 	parties
notwithstanding any statutes, rules, or regulations governing franchises
in the state where the LICENSEE does business.29
26 (See Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 3.)
27 (See Defs.’ 2d App. 2.App.16425–16883 (Licensing Agreements).)
28 (See, e.g., Defs.’ 2d App. 2.App.16440 (Window World of Baton Rouge – January 2002
Licensing Agreement) (“[A]s an inducement for WINDOW WORLD, INC., to enter this
Licensing Agreement and grant this franchise. . .”) (emphasis added); Volume One Pls.’ Exs.
Ex. 12 40–42, ECF No. 977.13.)
29 (See, e.g., Defs.’ 2d App. 2.App.16473 (Window World of Baton Rouge, LA – July 2010
Licensing Agreement); 2.App.16663 (Window World of Peoria, IL – April 2011 Licensing
Agreement); 2.App.16754 (Window World of Huntsville, AL – September 2008 Licensing
Agreement); 2.App.16765 (Window World of North Atlanta, GA – July 2009 Licensing
Agreement).)

13. 	Beginning in the early 2000s, Window World sought to “professionalize.”30
To that end, Window World made several changes to its corporate structure and
governance:
a. 	Window World hired Howard Blair Ingle (“Mr. Ingle”) as its CFO in
September 200731 and later promoted him to President of the company in
2009;32
b. 	around early 2010, Window World, at the direction of Mr. Ingle, hired Beth
Vannoy (“Ms. Vannoy”) as outside counsel purportedly to “look into the
possibility of Window World becoming a franchise system, for business
reasons.”33 	Later the same year, Window World hired Ms. Vannoy as in-
house counsel, where she testified she continued to “gather information for
a possible move to a franchise system”;34
c. 	in June 2010, WWI was formed35 and Window World transferred all of its
intellectual property assets (the “2010 Transfer”), including but not limited
30 (Defs.’ Br. Supp. Mot. Summ. J. 7, ECF No. 974 (sealed), 1001 (redacted); Defs.’ 1st App.
1.App.10389 (Howard Blair Ingle).)
31 (Defs.’ Br. Supp. Mot. Summ. J. 7; Defs.’ 1st App. 1.App.10018 (Howard Blair Ingle).)
32 (Defs.’ Br. Supp. Mot. Summ. J. 7; Defs.’ 1st App. 1.App.10029 (Howard Blair Ingle).) Mr.
Ingle was terminated from Window World in 2011. 	(Defs.’ Br. Supp. Mot. Summ. J. 9; see
also Defs.’ 1st App. 1.App.10298 (Howard Blair Ingle).)
33 (Defs.’ Br. Supp. Mot. Summ. J. 8; Defs.’ 1st App. 1.App.10056, 10067, 10070–71, 10137–
38 (Howard Blair Ingle); 1.App.12271, 12274, 12338–39, 12353–55, 12358, 12385–87, 12449
(Beth Vannoy).)
34 (Defs.’ 1st App. 1.App.12342, 12368, 12393, 12401–03, 12518 (Beth Vannoy).)
35 (See, e.g., Defs.’ 1st App. 1.App.10674 (Howard Blair Ingle); 1.App.16104 (Zachary
Luffman).)

to the Window World trademarks (the “Transferred Assets”), to the newly
formed entity;36 and
d. 	in 	February 	2011, Ms. 	Whitworth, 	who followed Todd Whitworth 	as
Window World’s CEO after Todd’s 2010 death, re-constituted Window
World’s Board of Directors.37
14. 	After Ms. Vannoy consulted with outside counsel and outside counsel
consulted with regulators in several states in which Window World had stores
regarding whether Window World’s business structure was subject to federal and
state franchising laws, the Window World board voted to “move forward with
becoming a franchise system” on 9 August 2011.38
15. 	To facilitate its purported transition to a franchise system, Window World
“issued a form rescission letter [accompanied by franchise disclosure documents] to
all store owners in October 2011 . . . [stating] that some states and the FTC would
consider [Window World] to have violated franchise laws . . . [and giving] owners the
option to rescind their licensing agreements [(the “Licensing Agreements”)] or to
36 (Volume Seven Pls.’ Exs. Ex. 189, ECF No. 983.9 (sealed).)
37 (Defs.’ 1st App. 1.App.15686 (Zachary Luffman); Defs.’ 2d App. 2.App.17411–17420
(Bylaws of Window World, Inc.).) Todd Whitworth, who was then serving as Window World’s
CEO, dissolved the Window World board in August 2009. 	(Defs.’ 2d App. 2.App.17111
(Minutes of Window World, Inc.).)
38 (Defs.’ Br. Supp. Mot. Summ. J. 10; Defs.’ Mot. Ex. 3, 3.App.20867–70 (Window World
Board Meeting Minutes – August 9, 2011) [hereinafter “Defs.’ 3d App.”], ECF No. 973.3
(sealed); Defs.’ 1st App. 1.App.11148 (Tammy Whitworth); 1.App.15848–50 (Howard Blair
Ingle).)

remain part of the [Window World] franchise system.”39 No operating storeowners,
including Plaintiffs, elected to rescind their Licensing Agreements with Window
World.40
16. 	Through the issuance of the recission letters and franchise disclosure
documents (the “FDDs”), Plaintiffs allege they “learned that Defendants . . . withheld
information from them that they were entitled to receive under federal law” and “that
the very foundation on which their relationship with Defendants was formed – that
by becoming a licensee of the ‘Window World’ marks they would gain access [to] the
best available wholesale prices for the windows they sold and installed – rested on
misrepresentation and deception by Defendants.”41
17. 	Additionally, upon issuance of the recission letters and FDDs, Plaintiffs
expressed concern that the executed written licensing agreements no longer reflected
the oral agreements to which they had initially agreed or the “manner in which the
parties had done business with each other for years.”42
39 (Defs.’ Br. Supp. Mot. Summ. J. 11; Volume Five Pls.’ Exs. Ex. 129, ECF No. 981.9 (sealed),
Ex. 133, ECF No. 981.14 (sealed); Defs.’ 3d App. 3.App.17943–46 (Form Recission Letter –
Michael Edwards).)
40 (Defs.’ Br. Supp. Mot. Summ. J. 11; see also, e.g., Defs.’ 1st App. 1.App.2074 (James Lomax,
III); 1.App.4510–11 (Kenneth Ford, Jr.); 1.App.15799–800 (Window World).)
41 (15-CVS-1 Third Am. Compl. ¶ 3; 15-CVS-2 Third Am. Compl. ¶ 3.)
42 (15-CVS-1 Third Am. Compl. ¶¶ 4–5; 15-CVS-2 Third Am. Compl. ¶¶ 4–5; see also, e.g.,
Defs.’ 1st App. 1.App.4672–73 (Michael Edwards); 1.App.6947–48 (Brian Hopkins).)

18. 	Due to these concerns, in 2012, the Roland Plaintiffs and the Lomax/Gillette
Plaintiffs approached Window World to attempt to resolve their grievances.43 	The
Roland 	and 	Lomax/Gillette 	Plaintiffs 	thereafter 	engaged 	in 	negotiations 	with
Window World and, on 23 April 2013, entered into a separate agreement tolling many
of their legal claims raised in this action (the “Tolling Agreement”).44
19. 	After 	settlement 	negotiations 	proved 	unsuccessful, 	the 	Roland 	and
Lomax/Gillette Plaintiffs, joined by the Non-Tolling Plaintiffs, brought the actions
currently before this Court.45
20. 	On 2 January 2015, Plaintiffs filed the two above-captioned lawsuits,
Window World of Baton Rouge, LLC v. Window World, Inc., 15-CVS-1 (the “Baton
Rouge Action”) and Window World of St. Louis, Inc. v. Window World, Inc., 15-CVS-
2 (the “St. Louis Action”) in Wilkes County Superior Court. 	These cases were
thereafter 	designated 	mandatory 	complex 	business 	cases 	and 	assigned 	to 	the
undersigned.46 The Court later consolidated the two cases for purposes of discovery.47
43 (15-CVS-1 Third Am. Compl. ¶¶ 5–6; 15-CVS-2 Third Am. Compl. ¶¶ 5–6; see also Defs.’
1st App. 1.App.2696, 3139–43 (James Roland); 1.App.1283, 1292–93, 1300–03 (James Lomax,
III).)
44 (Defs.’ 2d App. 2.App.17424–38 (April 2013 Tolling Agreement).)
45 (15-CVS-1 Third Am. Compl. ¶¶ 8–9; 15-CVS-2 Third Am. Compl. ¶¶ 8–10.)
46 (15-CVS-1 Designation Order, ECF No. 5; 15-CVS-1 Assignment Order, ECF No. 6; 15-
CVS-2 Designation Order, ECF No. 5; 15-CVS-2 Assignment Order, ECF No. 6.)
47 (Case Management Order 4, ECF No. 50.)

21. 	In their Third Amended Complaints filed in these lawsuits on 11 January
2017, 	Plaintiffs 	asserted 	claims 	for 	declaratory 	judgment48, 	reformation 	and
injunction49, breach of contract50, breach of the implied covenant of good faith and
fair dealing51, fraud52, negligent misrepresentation53, violation of North Carolina
General Statute (“N.C.G.S.”) § 75-1.154, unjust enrichment55, fraudulent transfer56,
and piercing the corporate veil, mere instrumentality, and alter ego57, which remain
pending in the current actions.58 For their relief, Plaintiffs seek nullification and/or
48 (15-CVS-1 Third Am. Compl. ¶¶ 222–37; 15-CVS-2 Third Am. Compl. ¶¶ 321–39.)
49 (15-CVS-1 Third Am. Compl. ¶¶ 238–44; 15-CVS-2 Third Am. Compl. ¶¶ 340–48.)
50 (15-CVS-1 Third Am. Compl. ¶¶ 245–51; 15-CVS-2 Third Am. Compl. ¶¶ 349–55.)
51 (15-CVS-1 Third Am. Compl. ¶¶ 252–59; 15-CVS-2 Third Am. Compl. ¶¶ 356–63.)
52 (15-CVS-1 Third Am. Compl. ¶¶ 260–68; 15-CVS-2 Third Am. Compl. ¶¶ 364–72.)
53 (15-CVS-1 Third Am. Compl. ¶¶ 269–74; 15-CVS-2 Third Am. Compl. ¶¶ 373–78.)
54 (15-CVS-1 Third Am. Compl. ¶¶ 275–79; 15-CVS-2 Third Am. Compl. ¶¶ 379–83.)
55 (15-CVS-1 Third Am. Compl. ¶¶ 280–85; 15-CVS-2 Third Am. Compl. ¶¶ 384–90.)
56 (15-CVS-1 Third Am. Compl. ¶¶ 286–300; 15-CVS-2 Third Am. Compl. ¶¶ 391–405.)
57 (15-CVS-1 Third Am. Compl. ¶¶ 162–221; 15-CVS-2 Third Am. Compl. ¶¶ 261–320.)
58 The Lomax/Gillette Plaintiffs also brought claims for declaratory judgment and injunction
in the St. Louis Action, which the Court dismissed by order dated 10 August 2015. (See Order
and Op. Defs.’ Mot. Dismiss and Pls.’ Mot. Leave File Second Am. Compl., 15-CVS-2 ECF No.
91.) The Court also dismissed the ninth cause of action in the Baton Rouge Action and the
eleventh cause of action in the St. Louis Action for violation of N.C.G.S. § 75-1 by order dated
25 October 2016. (See Order and Op. Defs.’ Mot. Dismiss and Second Mot. J. Pleadings, 15-
CVS-2 ECF No. 258.) Finally, the Court dismissed the eleventh cause of action in the Baton
Rouge Action and the thirteenth cause of action in the St. Louis Action for fraudulent transfer
as it relates to the Non-Tolling Plaintiffs’ claims against WWI under N.C.G.S. § 39-23.4(a)(2)
by order dated 11 February 2019. 	See generally Window World of Baton Rouge, LLC v.

reformation 	of 	Plaintiffs’ 	current 	written 	agreements 	with 	Window 	World,
compensatory and punitive damages, avoidance of the 2010 Transfer, and attorneys’
fees.
22. 	On 13 and 14 February 2017, Window World and WWI filed an Answer and
Counterclaim to Plaintiffs’ Third Amended Complaint in each action, in which they
asserted various claims for declaratory judgment.59 	Window World and WWI
asserted additional claims for declaratory judgment and breach of contract in the
Baton Rouge Action in their Amended Answer and Counterclaims to Plaintiffs’ Third
Amended Complaint filed on 10 March 2017.60 On 27 July 2017, Ms. Whitworth filed
an Answer and Alternative Counterclaim in both the Baton Rouge and St. Louis
Actions, in which she asserted various claims for declaratory judgment and breach of
contract.61
23. 	WWI’s 	Motion, 	through 	which 	WWI 	seeks 	summary 	judgment 	on 	all
remaining North Carolina Uniform Avoidable Transfers Act (“NCUVTA”) claims
Window World, Inc., 2019 NCBC LEXIS 11 (N.C. Super. Ct. Feb. 11, 2019); (See Order and
Op. Def. Window World International, LLC’s Mot. J. Pleadings, 15-CVS-2 ECF No. 726.)
59 (15-CVS-1 Answer & Countercl. of Window World and WWI to Third Am. Compl.
[hereinafter “Baton Rouge Answer” or “Baton Rouge Countercls.”], ECF No. 265 (sealed), 269
(redacted); 15-CVS-2 Answer & Countercl. of Window World and WWI to Third Am. Compl.
[hereinafter “St. Louis Answer” or “St. Louis Countercls.”], ECF No. 287 (sealed), 292
(redacted).)
60 (15-CVS-1 Am. Answer & Countercl. of Window World and WWI to Third Am. Compl., ECF
No. 283.)
61 (Answer & Alt. Countercl. of Tammy Whitworth, 15-CVS-1 ECF No. 327 (sealed), 15-CVS-
1 ECF No. 331 (redacted), 15-CVS-2 ECF No. 345 (sealed), ECF No. 349 (redacted).)

asserted by 	the 	Non-Tolling 	Plaintiffs, 	was 	initially 	filed on 	16 	April 	2019.62
Whitworth’s Motion, which seeks dismissal of Plaintiffs’ Chapter 75 claims against
her, was initially filed on 16 May 2019.63 	The Court stayed consideration of these
two motions64 pending the completion of discovery and, once discovery was completed,
set a briefing schedule for dispositive motions practice, including final briefing on
these motions.65
24. 	Pursuant to this schedule, the parties timely filed the Cross-Motions on 18
October 2023. In the Cross-Motions, Plaintiffs move for summary judgment on their
claims for fraud, declaratory judgment, violation of N.C.G.S. § 75-1.1, negligent
misrepresentation, fraudulent transfer, and piercing the corporate veil. 	Plaintiffs
further move for summary judgment on Defendants’ counterclaims66, subparagraph
(d) of Window World’s Fifth Additional Defense67, Window World’s Sixth Additional
62 (WWI’s Mot.)
63 (Whitworth’s Mot.)
64 (Order Staying Certain Activity Pending Appeal and Notice Hearing, ECF No. 733.)
65 (Sixth Am. Case Management Order, ECF No. 945.)
66 (Baton Rouge Answer ¶¶ 41–75; St. Louis Answer ¶¶ 51–95.) Plaintiffs’ Motion excludes
the “Alternative Counterclaim” asserted by Ms. Whitworth in the Answer filed on 27 July
2017. (Answer & Alt. Countercl. of Tammy Whitworth.)
67 Subparagraph (d) of Window World’s Fifth Additional Defense, asserted in the Answer and
Counterclaims filed in 15-CVS-2 (the St. Louis Action) on 14 February 2017, states as follows:
Plaintiffs’ claims are barred by all applicable statutes of limitations, statutes
of repose, and borrowing statutes as follows: . . . (d) The Tolling Agreement
between Window World and the Lomax Plaintiffs should be disregarded for
purposes of the statute of limitations to the extent, if any, that Lomax Plaintiffs
are precluded from enforcing the Tolling Agreement by their own breach of the

Defense68, subparagraph 5 of Tammy Whitworth’s Seventh Additional Defense69, and
Tammy Whitworth’s Eighth Additional Defense.70 	Defendants have denied all
liability and seek summary judgment on all of Plaintiffs’ claims.71
25. 	After full briefing, the Court convened a two-day hearing on the Motions on
10 and 11 January 2024, at which all parties were represented by counsel.72 	The
Motions are now ripe for resolution.
Tolling Agreement. Upon information and belief, the Lomax Plaintiffs violated
the confidentiality provisions of the Tolling Agreement. (St. Louis Answer.)
68 Window World’s Sixth Additional Defense, asserted in the Answer and Counterclaims filed
in 15-CVS-2 on 14 February 2017 (St. Louis Answer) and 15-CVS-1 on 13 February 2017
(Baton Rouge Answer), states that “Plaintiffs’ claims for breach of contract are barred to the
extent they have committed their own antecedent breaches of the contracts between the
parties.”
69 Subparagraph 5 of Tammy Whitworth’s Seventh Additional Defense, asserted in the
Answer and Alternative Counterclaim filed in 15-CVS-2 on 27 July 2017, states as follows:
Plaintiffs’ claims are barred by all applicable statutes of limitations, statutes
of repose, and borrowing statutes for numerous reasons, including the
following non-exclusive reasons: . . . (5) The Tolling Agreement should be
disregarded for purposes of the statute of limitations and/or repose to the
extent, if any, that Plaintiffs are precluded from enforcing the Tolling
Agreement by their own breach of the Tolling Agreement. Upon information
and belief, Plaintiffs violated the confidentiality provisions of the Tolling
Agreement. (15-CVS-2 Answer & Alt. Countercl. of Tammy Whitworth.)
Tammy Whitworth asserts the same additional defense in subparagraph (d) of her Seventh
Additional Defense in the Answer and Alternative Counterclaim filed in 15-CVS-1 on 27 July
2017. (15-CVS-1 Answer & Alt. Countercl. of Tammy Whitworth.)
70 Tammy Whitworth’s Eighth Additional Defense, asserted in the Answer and Alternative
Counterclaim filed in both 15-CVS-1 and 15-CVS-2 on 27 July 2017, alleges that “Plaintiffs’
claims for breach of contract are barred to the extent they have committed their own
antecedent breaches of the contracts.” 	(15-CVS-1 Answer & Alt. Countercl. of Tammy
Whitworth; 15-CVS-2 Answer & Alt. Countercl. of Tammy Whitworth; see also Pls.’ Mot.)
71 (Defs.’ Mot.)
72 (Am. Notice Hearing, ECF No. 1016.)

II.
CHOICE OF LAW
26. 	A “choice of law” contract clause provides “that the substantive laws of a
particular state [shall] govern the construction and validity of the contract.” 	Cable
Tel Servs., Inc. v. Overland Contracting, Inc., 154 N.C. App. 639, 641 (2002). 	The
general rule in North Carolina is that “where parties to a contract have agreed that
a given jurisdiction’s substantive law shall govern the interpretation of the contract,
such a contractual provision will be given effect.” Tanglewood Land Co. v. Byrd, 299
N.C. 260, 262 (1980). Our courts, however, will not enforce a choice of law provision
where:
(a) the chosen state has no substantial relationship to the parties or the
transaction and there is no other reasonable basis for the parties’ choice,
or (b) application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest
than the chosen state in the determination of the particular issue and
which . . . would be the state of applicable law in the absence of an
effective choice of law by the parties.
Cable Tel Servs., Inc., 154 N.C. App. at 642–43 (citing Restatement (Second) of
Conflict of Laws § 187 (1971)); see also Bundy v. Commercial Credit Co., 200 N.C. 511,
516 (1931) (refusing to apply parties’ choice of Delaware law because their contractual
stipulation 	was 	“immaterial” 	in 	that 	the 	“record 	[did] 	not 	disclose 	that 	any
transaction took place in Delaware or that the parties even contemplated either the
making or the performance of the contract in said State.”).
27. 	Plaintiffs in this action are foreign limited liability organizations, none of
which conduct business in North Carolina. 	However, in their executed written

agreements, Plaintiffs consented that their licensing or franchise agreements “shall
be governed and interpreted by the laws of the State of North Carolina.”73 As North
Carolina has a substantial relationship to the parties—Defendant Window World is
incorporated in North Carolina and headquartered in Wilkes County—and the
application of North Carolina law is not, on its face, contrary to a “fundamental policy
of a state which has a materially greater interest than the chosen state in the
determination of the particular issue,” this Court will apply North Carolina law to
the disputed issues. 	The parties do not dispute that North Carolina law applies to
the issues presented by the Motions.
III.
LEGAL STANDARD
28. 	Under Rule 56(c), “[s]ummary judgment is appropriate ‘if 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 a judgment as a matter of law.’ ” Da Silva v. WakeMed, 375
N.C. 1, 10 (2020) (quoting N.C. R. Civ. P. 56(c)). “A genuine issue of material fact is
one that can be maintained by substantial evidence.” Curlee v. Johnson, 377 N.C. 97,
101 (2021) (cleaned up). 	“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion and means more
than a scintilla or a permissible inference[.]” 	DeWitt v. Eveready Battery Co., 355
N.C. 672, 681 (2002) (cleaned up). 	“An issue is material if, as alleged, facts ‘would
73 (See, e.g., Defs.’ 2d App. 2.App.16476, 16489, 16502, 16515, 16543, 16561 (Licensing
Agreements).)

constitute a legal defense, or would affect the result of the action or if its resolution
would prevent the party against whom it is resolved from prevailing in the action.’ ”
Bartley v. City of High Point, 381 N.C. 287, 292 (2022) (quoting Koontz v. City of
Winston-Salem, 280 N.C. 513, 518 (1972)). “When considering a motion for summary
judgment, the trial judge must view the presented evidence in a light most favorable
to the nonmoving party.” Belmont Ass’n v. Farwig, 381 N.C. 306, 310 (2022) (quoting
Dalton v. Camp, 353 N.C. 647, 651 (2001)).
29. 	“The 	party 	seeking 	summary 	judgment 	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). 	The movant may meet this burden either
(1) “by proving an essential element of the opposing party’s claim does not exist,
cannot be proven at trial, or would be barred by an affirmative defense,” or (2) “by
showing through discovery that the opposing party cannot produce evidence to
support an essential element of [its] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000)
(cleaned up). 	If the movant meets its burden, “the burden shifts to the nonmoving
party to produce a forecast of evidence demonstrating that the nonmoving party will
be able to make out at least a prima facie case at trial[.]” Cummings v. Carroll, 379
N.C. 347, 358 (2021) (cleaned up); see also N.C. R. Civ. P. 56(e) (“[A]n adverse party
may not rest upon the mere allegations or denials of his pleading, but his response,
by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.”).

30. 	When a party requests offensive summary judgment on its own claims for
relief, as Plaintiffs do here, “a greater burden must be met.” 	Brooks v. Mt. Airy
Rainbow Farms Ctr., Inc., 48 N.C. App. 726, 728 (1980). 	The moving party “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). 	For that reason, it is “rarely . . . proper to
enter summary judgment in favor of the party having the burden of proof.” Blackwell
v. Massey, 69 N.C. App. 240, 243 (1984).
IV.
ANALYSIS
31. 	As a foundational matter, the parties dispute what governs the parties’
business relationship—the parties’ course of dealings and oral discussions or the
written agreements executed by the parties. Plaintiffs allege that, between 2002 and
2011, they “entered into a regular, definite, and consistent course of dealings
establishing a business relationship between themselves and franchisees owned by
them . . ., on the one hand, and [Window World], on the other hand.”74 	Plaintiffs
contend that 	“[a]lthough 	the 	parties 	executed a 	number of written 	‘Licensing
Agreements’ during the relevant time period, the parties’ business relationship
existed independent of those written agreements, predated the execution of those
written agreements, continued unabated and unaltered after the expiration of those
74 (15-CVS-1 Third Am. Compl. ¶ 30; 15-CVS-2 Third Am. Compl. ¶ 65.)

written 	agreements, 	and 	was 	not 	limited 	by 	those 	written 	agreements.”75
Defendants, 	in 	contrast, 	contend 	that 	“Plaintiffs 	all 	signed 	written 	licensing
agreements when they joined Window World” and that “[t]hose writings established
the material terms of Plaintiffs’ business relationship with [Window World].”76
32. 	In their initial pleadings, Plaintiffs assert several theories concerning why
the executed written agreements are “null, invalid, and unenforceable against
Plaintiffs” 	and 	the 	parties’ 	course 	of 	dealings 	and 	oral 	discussions 	control.77
According to Plaintiffs, the written agreements are invalid because:
(1) “the cause and/or object of the agreement[s], as intended by [Window World],
was illegal”;78
(2) “enforcement of such agreements against Plaintiffs would be against public
policy . . . expressed 	in 	the 	Franchise 	Disclosure 	Rule’s 	requirements
applicable to franchisors”;79
(3) the written agreements were “induced by [Window World’s] fraud”;80 and
75 (15-CVS-1 Third Am. Compl. ¶ 30; 15-CVS-2 Third Am. Compl. ¶ 65.)
76 (Defs.’ Br. Supp. Mot. Summ. J. 1.)
77 (15-CVS-1 Third Am. Compl. ¶ 223; 15-CVS-2 Third Am. Compl. ¶ 322.)
78 (15-CVS-1 Third Am. Compl. ¶ 224; 15-CVS-2 Third Am. Compl. ¶ 323.)
79 (15-CVS-1 Third Am. Compl. ¶ 226; 15-CVS-2 Third Am. Compl. ¶ 325.)
80 (15-CVS-1 Third Am. Compl. ¶ 227; 15-CVS-2 Third Am. Compl. ¶ 326.)

(4) “the putative obligations in the prior agreements are not enforceable against
Plaintiffs because they arise from adhesionary contracts.”81
33. 	Defendants seek summary judgment on Plaintiffs’ causes of action for (1) a
declaratory judgment that any and all prior written Licensing Agreements are null,
invalid, and unenforceable (First Cause of Action in the Baton Rouge Action/Third
Cause of Action in the St. Louis Action); (2) a declaratory judgment that Plaintiffs
have the right to continue to operate on the terms established by the parties’ course
of dealings, rather than the written agreements (Second Cause of Action in the Baton
Rouge Action/Fourth Cause of Action in the St. Louis Action); (3) fraud (Sixth Cause
of Action in the Baton Rouge Action/Eighth Cause of Action in the St. Louis Action)
and (4) negligent misrepresentation (Seventh Cause of Action in the Baton Rouge
Action/Ninth Cause of Action in the St. Louis Action). 	Plaintiffs, in their cross-
motion, also seek offensive summary judgment on their negligent misrepresentation
and fraud-based claims. The Court will address each of these motions for summary
judgment before turning to the remaining claims at issue, beginning with the cross-
motions for summary judgment on Plaintiffs’ cause of action for fraud.
A. Fraud
34. 	Plaintiffs 	allege 	that 	Window 	World 	“failed 	to 	disclose, 	and 	in 	fact
concealed . . . information from Plaintiffs” to induce Plaintiffs to “operate as Window
World franchisees, to assume debt owed by prior franchisees to vendors such as AMI,
to continue to operate as Window World franchisees, to pay substantial amounts
81 (15-CVS-1 Third Am. Compl. ¶ 231; 15-CVS-2 Third Am. Compl. ¶ 330.)

advertising 	Window 	World 	trademarks, 	and 	to 	make 	purchases 	from 	various
suppliers, including AMI.”82
35. 	Specifically, Plaintiffs allege that Window World:
fraudulently 	concealed 	from 	Plaintiffs 	that 	[Window 	World] 	is 	a
franchise subject to franchise disclosure laws, that Plaintiffs must pay
certain fees to [Window World] or affiliates of [Window World], that
[Window World] or its owners have ownership interests in certain
suppliers, 	that 	[Window 	World] 	derives 	revenue 	from 	Plaintiffs’
purchase of products or supplies[,] the undisclosed kickbacks or rebates
[Window 	World] 	received 	on 	Plaintiffs’ 	purchase 	of 	products 	and
supplies, that the prices charged Plaintiffs for products and supplies
from approved suppliers were inflated to provide greater revenue to
[Window World], that the undisclosed kickbacks and rebates represent
all or part of the promised volume discount, that [Window World]
provided undisclosed “C” pricing to certain franchisees with lower levels
of sales while representing that Plaintiffs were receiving the most
favorable “B” pricing, that [Window World] receives other undisclosed
compensation and consideration from its approved suppliers, and that
[Window World] itself was obligated to pay some or all of the debt that
[Window World] required Plaintiffs to assume that was owed by prior
franchisees to vendors such as AMI.83
36. 	As a result of the alleged misrepresentations and omissions listed above,
Plaintiffs contend Window World “committed fraud in at least five distinct ways.”84
According to Plaintiffs, Window World:
(1) “grossly misrepresented the royalties or ‘rebates’ Plaintiffs would pay [through
Window World-designated suppliers to Window World] to do business as
Window World dealers” (the “Rebate Misrepresentation Theory”);
82 (15-CVS-1 Third Am. Compl. ¶ 263; 15-CVS-2 Third Am. Compl. ¶ 367.)
83 (15-CVS-1 Third Am. Compl. ¶ 262; 15-CVS-2 Third Am. Compl. ¶ 366.)
84 (Pls.’ Br. Supp. Mot. Partial Summ. J. 44, ECF No. 976 (sealed), 1000 (redacted).)

(2) “falsely promised that Plaintiffs would receive best pricing on the products
they purchased from [Window World-designated] suppliers” (the “Best Pricing
Theory”);
(3) “knowingly concealed material facts it was duty-bound to disclose under
franchise law and otherwise, despite awareness of its legal obligation to do so”
(the “Fraudulent Concealment Theory”);
(4) “falsely disclaimed application of franchise law in the licensing agreements it
presented to Plaintiffs to sign after June 2008” (the “Franchise Disclaimer
Theory”); and
(5) “in 2009, [Window World] misrepresented increases in the already-fraudulent
rebates Plaintiffs paid” (the “2009 Price Increase Theory”).85
37. 	Window World’s fraud, Plaintiffs argue, “renders the written agreements
Plaintiffs executed . . . void and unenforceable.”86
38. 	Defendants 	move 	to 	dismiss 	Plaintiffs’ 	fraud 	claims, 	contending 	that
Defendants are not liable on any of the five grounds listed above and, relatedly, that
the written agreements Plaintiffs executed are enforceable. 	Defendants further
contend most of Plaintiffs’ fraud claims should be dismissed because they were
brought after the applicable statute of limitations had expired. 	The Court will
address each ground for fraud identified by Plaintiffs, as well as Defendants’ statute
of limitations arguments, in turn.
85 (Pls.’ Br. Supp. Mot. Partial Summ. J. 44–45.)
86 (Pls.’ Br. Supp. Mot. Partial Summ. J. 49.)

Elements of Fraud
39. 	A claim for fraud may be based on an “affirmative misrepresentation of a
material fact, or [ ] a failure to disclose a material fact relating to a transaction which
the parties had a duty to disclose.” Hardin v. KCS Int’l, Inc., 199 N.C. App. 687, 696
(2009) (internal citation omitted). 	The “essential elements of actionable fraud are
well established: (1) False representation or concealment of a [past or existing]
material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4)
which does in fact deceive, (5) resulting in damage to the injured party.” Tillery Env’t,
LLC v. A & D Holdings, Inc., 2018 NCBC LEXIS 13, at *19–20 (N.C. Super. Ct. Feb.
9, 2019) (alteration in original) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138
(1974)).
40. 	For purposes of fraud, “a fact is material if, had it been known to the party,
it would have influenced the party’s judgment or decision in making the contract.”
Shaw v. Gee, 2016 NCBC LEXIS 103, at *11 (N.C. Super. Ct. Dec. 21, 2016) (citing
White Sewing Mach. Co. v. Bullock, 161 N.C. 1, 7 (1912)). Further, as a general rule,
a claimant’s reliance on allegedly false statements must be reasonable, though the
reasonableness of such reliance is typically a question for the jury. 	Forbis v. Neal,
361 N.C. 519, 527 (2007); Johnson v. Owens, 263 N.C. 754, 758 (1965) (“[W]here
reliance ceases to be reasonable and becomes such negligence and inattention that it
will, as a matter of law, bar recovery for fraud is frequently very difficult to
determine.”).

41. 	In alleging fraud by concealment or omission, Plaintiffs must additionally
show that Defendants “had a duty to disclose material information to them, as silence
is fraudulent only when there is a duty to speak.” 	Lawrence v. UMLIC-Five Corp.,
2007 NCBC LEXIS 20, *8 (N.C. Super. Ct. June 18, 2007) (citing Griffin v. Wheeler-
Leonard & Co., 290 N.C. 185, 198 (1976)). When two parties are engaged in an arm’s-
length transaction, two different scenarios will create a duty to disclose. The first is
when one party takes an affirmative step to conceal a material fact from the other.
Hardin, 199 N.C. App. at 696; see also Ragsdale, 286 N.C. at 138–40. 	A concealed
fact is considered material when it would have influenced the decision or judgment
of another party, if known. White Sewing Mach. Co., 161 N.C. at 7; see also Godfrey
v. Res-Care, Inc., 165 N.C. App. 68, 75–76 (2004). The second is when “one party has
knowledge of a latent defect in the subject matter of the negotiations about which the
other party is both ignorant and unable to discover through reasonable diligence.”
Hardin, 199 N.C. App. at 696 (quoting Sidden v. Mailman, 137 N.C. App. 669, 675
(2000)).
42. 	In addition to these situations, even when no duty to disclose exists, a party
who chooses to speak has a duty to make a full and fair disclosure of facts concerning
the matters on which he chooses to speak. Ragsdale, 286 N.C. at 139 (citing Low v.
Wheeler, 207 Cal. App. 2d 477, 484 (Ct. App. 1962) (“Even where there is no duty to
make a disclosure, when one does undertake to inform, he must speak the whole
truth.”)).
Ground 1: Rebate Misrepresentation Theory

43. 	Plaintiffs first contend that Window World “committed fraud by knowingly
misrepresenting the most basic financial element of the parties’ relationships: what
Plaintiffs paid [Window World] for the right to do business under the Window World
name.”87 Plaintiffs assert that Window World’s “rebate promises were central to their
decision to become dealers, that they trusted the promises [Window World] made,
and that those promises led them to invest in the Window World brand.”88
44. 	Specifically, 	Plaintiffs 	argue 	that 	Window 	World 	committed 	fraud 	by
misrepresenting the rebate amounts Plaintiffs would pay to Window World on
windows and 	.89 	According to Plaintiffs, “[t]he record is undisputed
that [Window World] promised Plaintiffs that they would not pay more than $10 a
window in rebates.”90 Despite promises made to Plaintiffs, Window World allegedly
“had no intention of honoring these promises, and it did not do so.”91 Window World’s
fraudulent conduct, Plaintiffs allege, is evidenced by the fact that Window World “was
already collecting rebates far in excess of the represented amounts when Plaintiffs
began operating[.]”92
87 (Pls.’ Br. Supp. Mot. Partial Summ. J. 46.)
88 (Pls.’ Reply Br. Supp. Pls.’ Mot. Partial Summ. J. 23 [hereinafter “Pls.’ Reply Br.”], ECF
No. 1025 (sealed), 1039 (redacted).)
89 (Pls.’ Br. Supp. Mot. Partial Summ. J. 46–49.)
90 (Pls.’ Br. Supp. Mot. Partial Summ. J. 46.)
91 (Pls.’ Br. Supp. Mot. Partial Summ. J. 46.)
92 (Pls.’ Br. Supp. Mot. Partial Summ. J. 46.)

45. 	Furthermore, Plaintiffs contend that Window World’s rebate promises “were
material to each Plaintiff’s decision to become a [Window World] dealer,”93 Plaintiffs’
reliance 	on 	Window 	World’s 	rebate 	misrepresentations 	was 	reasonable, 	and
“Plaintiffs were damaged [by Window World’s misrepresentations] in an amount
equal to the difference between the rebates they were fraudulently promised and the
rebates they actually paid.”94
46. 	Defendants seek to dismiss Plaintiffs’ fraud claim based on the alleged
rebate misrepresentation, arguing that “Plaintiffs cannot establish any element [of
fraud], much less run the table, for their rebate-fraud theory.”95 	Specifically,
Defendants contend that no Plaintiff group can establish the first element—that
Window World made a false misrepresentation of a material fact—as:
a. 	“most 	Plaintiffs 	did 	not 	testify 	that 	[Window 	World] 	promised 	that
Plaintiffs’ rebate amounts would never exceed $10 per window”;96
b. 	“[s]ome Plaintiffs admitted that there was no discussion of rebate amounts
until after signing a licensing agreement . . . [meaning that] these Plaintiffs
93 (Pls.’ Reply Br. 22; see also Pls.’ Reply Br. Ex. 3.1, ECF No. 1026.3 (sealed), Ex. 3.3, ECF
No. 1026.5 (sealed), Ex. 3.4, ECF No. 1026.6 (sealed), Ex. 3.8, ECF No. 1026.10 (sealed).)
94 (Pls.’ Br. Supp. Mot. Partial Summ. J. 48–49.)
95 (Defs.’ Resp. Pls.’ Mot. Summ. J. 37.)
96 (Defs.’ Resp. Pls.’ Mot. Summ. J. 38.)

could not have been induced by any ‘rebate fraud’ into signing their
agreements”;97
c. 	“it appears that the rebate amount for 	98
d. 	the amount of the rebate could not have been relevant to Plaintiffs’ decision
to join the Window World system because, “once a dealer knows the cost of
windows and the price at which he can sell them, . . . other data points
aren’t germane”;99 and
e. 	“[n]o Plaintiff sought to limit [Window World’s] right to set or change rebate
amounts [in the written agreements] . . . [t]hus, this information couldn’t
have been material.”100
47. 	Defendants further argue that there is “no evidence [Window World] sought
to induce Plaintiffs’ reliance on the rebate amounts,”101 “Plaintiffs couldn’t reasonably
rely on rebate representations that didn’t form part of the deal, nor could they
97 (Defs.’ Resp. Pls.’ Mot. Summ. J. 39; see, e.g., Defs.’ 1st App. 1.App.1888 (James Lomax,
III); 1.App.5354–55 (Melissa Edwards); 1.App.8763 (Tommy Jones).)
98 (Defs.’ Resp. Pls.’ Mot. Summ. J. 39; see, e.g., Defs.’ 1st App. 1.App.1922 (James Lomax,
III); 1.App.4680–81 (Michael Edwards); 1.App.15892–96 (Zachary Luffman).)
99 (Defs.’ Resp. Pls.’ Mot. Summ. J. 40; see also Defs.’ Reply Br. Supp. Mot. Summ. J. 28
(“Plaintiffs claim the rebate amount was material, but they never say why. Pls.’ Resp. at 62.
Plaintiffs 	say 	‘no 	rational 	actor 	would 	enter 	into 	a 	business 	relationship 	without
understanding the associated costs.’ Pls.’ Resp. at 62. But Plaintiffs did know the costs: the
prices they would pay for windows. 	WW’s Resp. at 39–42; 2.App.17455, ¶ 12. 	The rebate
amount was immaterial.”), ECF No. 1031 (sealed), 1037 (redacted).)
100 (Defs.’ Resp. Pls.’ Mot. Summ. J. 42.)
101 (Defs.’ Resp. Pls.’ Mot. Summ. J. 42.)

reasonably assume that the rebate amounts would stay at the same level forever,”102
and “Plaintiffs have not shown any damages associated with the alleged rebate
fraud.”103
48. 	To be successful in their motion for summary judgment, Defendants must
demonstrate either (1) an “essential element of [Plaintiffs’ fraud] claim does not exist,
cannot be proven at trial, or would be barred by an affirmative defense” or (2)
Plaintiffs “cannot produce evidence to support an essential element of [their fraud]
claim[.]” Dobson, 352 N.C. at 83.
49. 	Since Plaintiffs are moving for offensive summary judgment on their fraud
claims, they bear a much greater burden. As stated above, to succeed, Plaintiffs must
show “that there are no gaps in [their] proof, that no inferences inconsistent with
[their] recovery arise from the evidence, and that there is no standard that must be
applied to the facts by the jury.” 	Ford v. Jurgens, 2021 NCBC LEXIS 10, *3 (N.C.
Super. Ct. Feb. 2, 2021) (citing Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719,
721 (1985)). 	As with all motions for summary judgment, the Court must view “the
evidence ‘in the light most favorable to’ [the non-moving party], taking their evidence
as true and drawing inferences in their favor.” Id. (citing Furr v. K-Mart Corp., 142
N.C. App. 325, 327 (2001)).
50. 	Based on a careful review of the evidence advanced by the parties, the Court
first concludes that Defendants’ Motion for summary judgment on Plaintiffs’ fraud
102 (Defs.’ Resp. Pls.’ Mot. Summ. J. 43.)
103 (Defs.’ Resp. Pls.’ Mot. Summ. J. 45.)

claim based on rebate misrepresentation should be granted as it applies to the
Ballard 	Plaintiffs, 	the 	Ford 	Plaintiffs, 	the 	Jones/Shumate 	Plaintiffs, 	the 	Rose
Plaintiffs, and these Plaintiffs’ related entities. The foregoing Plaintiffs have not met
their burden at the summary judgment stage of providing substantial evidence to
support 	a 	conclusion 	that 	Window 	World 	misrepresented 	the 	rebate 	amounts
Plaintiffs would pay to Window World.
51. 	In his deposition, James Ballard testified that Leon Whitworth did not make
any specific representations to him regarding rebate amounts prior to his becoming
a Window World storeowner:
Q: Did Leon Whitworth disclose to you the amount of the rebate that
Window World was to receive on purchases of approved products?
A: He just said a small margin, you know, a few dollars of windows is
what he said. He didn’t give me no specific amounts, no.”104
52. 	The Ford, Rose, Jones, and Shumate Plaintiffs similarly testified that
neither Leon Whitworth, nor any other Window World representative, made specific
representations to them regarding rebate amounts prior to them becoming Window
World storeowners.105
104 (Defs.’ 1st App. 1.App.145 (James Ballard).) Toni Ballard also testified she did not have
any discussions with Window World regarding rebates or rebate amounts. (Defs.’ 1st App.
1.App.573 (Toni Ballard).)
105 (Defs.’ 1st App. 1.App.3846–47 (“The original agreement, Leon, with – with who I trusted,
said [the rebate] would be a couple of bucks per window.”), 3973, 3979, 4505–06 (Kenneth
Ford, Jr.); 1.App.4173 (“Rick Collins had mentioned that Window World gets something from
the manufacturer. He didn’t say how much.”), 4177 (Angell Wesner-Ford); 1.App.6201 (“I did
not know what the rebate was . . . I don’t remember Leon saying a number.”), 6217–19, 6695
(Rick Rose); 1.App.6655, 6694 (Christina Rose); 1.App.8088–90 (“Q: So you don’t recall any
particular amount of money that – A: One, that was 18 years ago. 	That five or ten dollar
comment for some reason sounds familiar, but again, that was 18 years ago.”), 8794 (Tommy

53. 	Since the foregoing Plaintiffs failed to provide substantial evidence to
demonstrate that the first element of a claim for fraud—that there was a false
representation of a material fact—existed or could be proven at trial, the Court need
not consider whether these Plaintiffs have met their summary judgment burden
regarding the remaining elements.
54. 	Regarding the remaining Plaintiffs—the Edwards, Lomax/Gillette, Roland,
and Williamson/Hopkins Plaintiffs—the Court finds that these Plaintiffs have met
their burden at the summary judgment stage of providing substantial evidence to
support a conclusion that Window World misrepresented the rebate amounts these
Plaintiffs would pay to Window World. 	The remaining Plaintiffs provided evidence
that (1) prior to their signing written agreements with Window World, Window World
represented to them that they would not pay more than ten dollars in rebates per
window and (2) Plaintiffs paid 	.106
Jones); 1.App.8763 (“Q: Did you ever ask [Leon Whitworth] how big those rebates were? A:
No. He just always said that with our buying power together that no one could buy cheaper
than we do.”) (Jeremy Shumate).)
106 (Defs.’ 1st App. 1.App.2708–09 (“Leon had, in our initial meetings, told me that, when he
explained the whole Window World system, that in exchange for providing the best pricing,
that they took a little, they were able to negotiate great prices because they used the buying
power of all of the Window World stores out there, and that they would take a little off the
top. 	And that little, he explained to me, was $10 . . . per window.”), 2823, 3428 (James
Roland); 1.App.1183 (“I’ve seen the price list from 2001, or the rebate list that showed the
. . . .[Leon Whitworth’s] exact words were something to the effect of, you know,
we weren’t trying to get rich. We were going to make five or ten bucks a window.”), 1221–23,
1249, 	1888 (James 	Lomax, 	III); 	1.App.7847–50 	(“Q: 	So is 	it 	fair 	to say that 	your
understanding is that Window World would never be able to receive a rebate on any product
other than windows? Is that your understanding? A: That was what Leon told me. I mean,
my understanding is just what Leon told me. 	Leon said, you know, “I make ten bucks a

Furthermore, the Court finds that these Plaintiffs have provided substantial evidence
to support a conclusion that the rebate amounts were material to Plaintiffs. In their
depositions, these Plaintiffs testified that representations surrounding pricing and
rebates formed the foundation of their relationship with Window World and the
rebate amounts induced Plaintiffs, at least in part, to contract with Window World.107
55. 	The Edwards, Lomax/Gillette, Roland, and Williamson/Hopkins Plaintiffs
have similarly put forth substantial evidence to support the remaining scienter,
reliance, and injury elements of a prima facie case for fraud. 	In a claim for fraud,
window and you guys sell a bunch of windows,” and that’s how it works.”) (Scott Williamson).)
Although Mr. Gillette and Mr. Hopkins testified that they learned about the rebate amounts
from their business partners (Mr. Lomax and Mr. Williamson, respectively), rather than
through Window World, (see Defs.’ 1st App. 1.App.2281–82 (Jonathan Gillette); 1.App.7080–
81 (Brian Hopkins)), the Court finds Window World’s alleged misrepresentations to these
Plaintiffs’ business partners sufficient to create a fact issue for these Plaintiffs as to this
element. Similarly, although Melissa Edwards testified that she and Michael Edwards were
already selling Window World products at the time Mr. Whitworth told them Window World
would be taking $5 a window, (see Defs.’ 1st App. 1.App.5355 (Melissa Edwards)), Michael
Edwards testified that the rebate misrepresentations were made before he and his wife began
selling Window World products, which the Court finds sufficient to create an issue of fact as
to this element of these Plaintiffs’ fraud-rebate claim. 	(Defs.’ 1st App. 1.App.4666 (“I was
told by Todd [Whitworth] when I started it was five to ten dollars a window, and that was it.
Nothing else. Nothing ever got told to me anything otherwise.”), 5120–22, 5755 (“Q: So you
knew at the start, prior to your signing the first Huntsville agreement, that Window World
was paid rebates, correct? A: $5 to $10, at the most . . . Q: Did you have any sense that that
could change? A: No. Q: Did you ever talk to [Todd Whitworth] about the rebate structure
changing? A: No. I went to work.”) (Michael Edwards).)
107 (See Volume One Pls.’ Exs. Ex. 20; Pls.’ Reply Br. Exs. 3.3, 3.4; see also Defs.’ 1st App.
1.App.15801 (Window World).) For instance, Mr. Roland testified “if Window World would
have done what it was supposed to do as a franchise and give full – reveal fully – the price of
doing business with them, in other words, if I would have known the amount of rebates that
were being charged from the beginning, I wouldn’t be here today.” 	(Defs.’ 1st App.
1.App.2717–18 (James Roland).) Similarly, Mr. Lomax testified “[b]y the amount of rebate
they were collecting, the fact that I wasn’t getting the best price, the fact that even though
Leon told me that it was automatic renewal, as long as I didn’t do anything wrong and I kept
paying my bills, that we’re going to change that in the future, there’s no way I would have
invested the type of time, energy, and money that it took to build what we have today.” (Defs.’
1st App. 1.App.1925 (James Lomax, III).)

“[t]he required scienter for fraud is not present without both knowledge and an intent
to deceive, manipulate, or defraud.” 	RD&J Props. v. Lauralea-Dilton Enters., LLC,
165 N.C. App. 737, 745 (2004) (citing Myers & Chapman, Inc. v. Thomas G. Evans,
Inc., 323 N.C. 559, 568 (1988)). 	Furthermore, in a claim for fraud, “a defendant
cannot be liable for misrepresenting a fact that it has no knowledge is false.” 	Id.
(citing Taylor v. Gore, 161 N.C. App. 300, 303 (2003)). Fraudulent intent “generally
is proven by circumstances” and “can be shown by presenting evidence of some motive
on the part of the perpetrator.” 	Latta v. Rainey, 202 N.C. App. 587, 600 (2010)
(cleaned up).
56. 	Here, the remaining Plaintiffs provided evidence from which a reasonable
factfinder could conclude that Window World knew its alleged representations
regarding rebate amounts were false and took steps to prevent Plaintiffs from
learning the actual amount paid to Window World in the form of rebates.108
108 (See Pls.’ Br. Supp. Mot. Partial Summ. J. 12; Volume One Pls.’ Dep. Excerpts, Ex. P,
Window World Dep. 310:3–312:4, ECF No. 984.16 (sealed).) Additionally, Plaintiffs provide
evidence of Window World’s fraudulent intent as related to rebate misrepresentations. “After
[Window World] discovered that Roland learned the actual amount of the rebates, then-
[Window World] President Dana Deem wrote to [Window World’s] board that he called AMI
and ‘shared [his] anger’:
As you can clearly see on the attached spreadsheet, [Roland] has our exact
rebate structure by item thanks to AMI. [AMI officer Dave King] stated that
[Roland] kept asking for more details and that is how the tab expanded, but
that is no excuse . . . [King] knew that we did not want [Roland] to have the
exact details of our rebate.”
(Pls.’ Br. Supp. Mot. Partial Summ. J. 13; See also Volume One Pls.’ Exs.’ Ex. 30, ECF No.
977.31 (sealed).)

57. 	In 	addition, 	these 	Plaintiffs 	provide 	substantial 	evidence 	to 	rebut
Defendants’ assertion that their reliance on Defendants’ oral representations as to
rebate amounts was “unreasonable as a matter of law” as “[t]he parties chose not to
limit rebates in their [written, executed, and fully-integrated] contracts.”109 	For
example, Plaintiffs point out that the majority of the written agreements executed by
the parties do not address rebates at all,110 the “parties’ oral agreements provide the
only source of any agreement on rebates—including that Plaintiffs would pay
them,”111 and Defendants frequently downplayed the importance of the written
agreements in governing the parties’ relationship, often referring to the written
agreements as “just paperwork.”112 	Based on the proffered evidence, a jury could
109 (Defs.’ Resp. Pls.’ Mot. Summ. J. 43.)
110 (See Defs.’ 2d. App. 2.App.16425–16914.) 	It is undisputed that the existence of rebates
was not mentioned in the executed written agreements until the Franchise Agreements
signed by some Plaintiffs in 2013 were created (see, e.g., Defs.’ 2d. App. 2.App.16891
(Williamson 	Franchise 	Agreement 	executed 	22 	March 	2013); 	2.App.16933 	(Edwards
Franchise Agreement executed 10 June 2013).) 	The Franchise Agreements contain the
following language, which does not refer to rebate amounts:
“FRANCHISEE understands and agrees FRANCHISOR will receive rebates
and other compensation from vendors and that such compensation is for
services rendered to the vendors and such compensation is reasonable.
FRANCHISEE 	agrees 	all 	rebates 	received 	by 	FRANCHISOR 	are
FRANCHISOR’S exclusive property and FRANCHISOR has no obligation to
spend any portion of the rebates on FRANCHISEE’S behalf.”
(2.App.16891, 16933.)
111 (Pls.’ Reply Br. 25.)
112 (See, e.g., Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 2, ECF No. 1008.2 (sealed); Defs.’ 1st
App. 1.App.1325–26 (James Lomax, III); 1.App.3135, 3538–39 (James Roland); 1.App.4783,
5817 (Michael Edwards); 1.App.5349, 5409–10 (Melissa Edwards); 1.App.7325, 7800 (Scott
Williamson).)

rationally conclude that Plaintiffs were reasonable in their reliance on Defendants’
oral representations concerning rebate amounts. See Little v. Stogner, 162 N.C. App.
25, 30 (2004) (“The reasonableness of a party’s reliance is a question for the jury,
unless the facts are so clear that they support only one conclusion.” (quoting State
Props., LLC v. Ray, 155 N.C. App. 65, 73 (2002))).
58. 	Last, Plaintiffs provide sufficient evidence at the summary judgment stage
to permit a reasonable factfinder to conclude Plaintiffs were harmed in an amount
equal to the difference between “the rebates they were fraudulently promised and the
rebates they actually paid.”113
59. 	Based on the above, the Court concludes that Defendants’ Motion should be
denied 	as 	to 	the 	Edwards, 	Lomax/Gillette, 	Roland, 	and 	Williamson/Hopkins
Plaintiffs’ 	(and 	their 	related 	entities’) 	fraud 	claim 	based 	on 	the 	Rebate
Misrepresentation 	Theory. 	The 	Court 	further 	concludes 	that 	these 	Plaintiffs’
offensive summary judgment motion on this claim should similarly be denied as
Plaintiffs have failed to meet their high burden of “show[ing] that there are no
genuine issues of fact, that there are no gaps in [their] proof, that no inferences
113 (Pls.’ Br. Supp. Mot. Partial Summ. J. 49; see also Volume Seven Pls.’ Exs. Ex. 216
[hereinafter “Bersin Report”], ECF No. 983.36 (sealed); Volume Seven Pls.’ Exs. Ex. 218, Aff.
Brent K. Bersin, dated Apr. 7, 2017, at ¶ 6 [hereinafter “Bersin Aff.”], ECF No. 983.38
(sealed).) Plaintiffs have also provided evidence that, if not for the requirement to pay rebates
through select vendors to Window World, they could purchase the same windows much
cheaper from suppliers, such as AMI. (See, e.g., Defs.’ 1st App. 1.App.5634–35 (“Q: And Mr.
Straus [of AMI] responded by telling you that if you were not a Window World store owner
paying the Window World rebate, he would be able to sell you the same windows much
cheaper. Is that what you told me? A: He just said if it wasn’t for Window World, I could get
it for cheaper, yes.”) (Melissa Edwards).)

inconsistent with [Plaintiffs’] recovery arise from the evidence, and that there is no
standard that must be applied to the facts by the jury.” Parks Chevrolet, Inc., 74 N.C.
App. at 721.114
60. 	In 	particular, 	genuine 	issues 	of 	material 	fact 	remain 	on 	the 	Rebate
Misrepresentation Theory at least as to: whether Window World falsely represented
rebate amounts; whether the rebate amounts were material; whether Window World
intended to deceive Plaintiffs; whether Plaintiffs reasonably relied on Window
World’s alleged oral representations; and whether Plaintiffs were harmed by Window
World’s alleged misrepresentations. 	The foregoing are all questions of fact which
must be resolved by a jury. 	Head v. Gould Killian CPA Grp., P.A., 371 N.C. 2, 9
(2018) (“Whether each of the elements of actual fraud and reasonable reliance are
met are ordinarily questions for the jury ‘unless the facts are so clear that they
support only one conclusion.’ ”) (citing Forbis, 361 N.C. at 527).
61. 	Defendants additionally contend that Window World is entitled to summary
judgment on Plaintiffs’ fraud claims due to North Carolina’s three-year statute of
limitations for fraud claims.115 	Defendants argue that the period for Plaintiffs to
bring their fraud claims began to run “when they joined [Window World], and
certainly no later than October 2011 when they received rescission letters and
114 It is “rarely . . . proper to enter summary judgment in favor of the party having the burden
of proof.” Blackwell v. Massey, 69 N.C. App. 240, 243 (1984).
115 (Defs.’ Br. Supp. Mot. Summ. J. 2, 47–51.)

[franchise disclosure documents].”116 	Since more than three years passed between
October 2011 and the filing of these lawsuits on 2 January 2015, Defendants maintain
that 	the 	“three-year statute 	of 	limitations 	dooms 	the 	[fraud] 	claims 	for most
Plaintiffs.”117
62. 	N.C.G.S. § 1-52(9) provides that, for relief on the ground of fraud or mistake,
“the cause of action shall not be deemed to have accrued until the discovery by the
aggrieved party of the facts constituting the fraud or mistake.” Thus, the limitations
period for a fraud claim “begins to run when the plaintiff first becomes aware of facts
and circumstances that would enable him to discover the defendant’s wrongdoing in
the exercise of due diligence.” Doe v. Roman Catholic Diocese of Charlotte, 242 N.C.
App. 538, 543 (2015).
63. 	Though Defendants contend Plaintiffs’ cause of action for fraud accrued in
October 2011 at the latest, Plaintiffs provide substantial evidence that Plaintiffs did
not discover the facts constituting fraud as it relates to the rebate misrepresentations
until 2013. In his deposition, Mr. Roland testified, “I don’t believe that I knew what
the rebates were until – I have a billing practice with AMI that was authorized by –
by Window World sometime in 2013, the spring of 2013, where Win – AMI gives me
– separates the rebates from the invoices that they – they send to me. 	And I don’t
think until then that I knew exactly what the rebates were.”118 Mr. Roland further
116 (Defs.’ Br. Supp. Mot. Summ. J. 2.)
117 (Defs.’ Br. Supp. Mot. Summ. J. 2.)
118 (Defs.’ 1st App. 1.App.2707 (James Roland).)

testified that “Window World of Baton Rouge and [his] other companies did not know
the rebate structure when Window World issued its FDD to [them] in October of
2011.”119
64. 	Mr. Roland’s testimony that neither he nor the other storeowners knew the
exact rebate amounts until 2013 is further supported by a 12 August 2013 email from
Dana Deem, Window World’s then President, to Ms. Whitworth and other Window
World representatives stating:
“[a]s you can clearly see on the attached spreadsheet, [Roland] has our
exact rebate structure by item thanks to AMI. [AMI officer Dave King]
stated that [Roland] kept asking for more details and that is how the tab
expanded, but that is no excuse…. [King] knew that we did not want
[Roland] to have the exact details of our rebate.”120
65. 	Plaintiffs’ evidence creates a genuine issue of material fact as to when
Plaintiffs’ cause of action for fraud based on the Rebate Misrepresentation Theory
accrued. 	Thus, the Court concludes that Plaintiffs’ fraud claim based on rebate
misrepresentation 	is 	not 	barred 	by 	N.C.G.S. 	§ 1-52(9)’s 	three-year 	statute 	of
limitations period at the summary judgment stage.
Ground 2: Best Pricing Theory
66. 	Plaintiffs next contend that Window World “committed fraud by making
misrepresentations regarding C pricing and ‘best pricing’ with fraudulent intent.”121
Plaintiffs contend that to induce them to join the Window World system, Window
119 (Defs.’ 1st App. 1.App.2707–08 (James Roland).)
120 (Volume One Pls.’ Exs.’ Ex. 30.)
121 (Pls.’ Br. Supp. Mot. Partial Summ. J. 49.)

World promised Plaintiffs not only the best external price (a better price than non-
Window World dealers in their sales area), but also the “best pricing period (in the
system or elsewhere).”122
67. 	Plaintiffs argue that Window World’s promise that Plaintiffs would obtain
better pricing on windows as a participant in the Window World system than they
could obtain on their own was “the key inducement to joining the system.”123
Furthermore, Plaintiffs argue that, by promising “every Plaintiff a two-tiered pricing
system”124 of “A” pricing (the best pricing relative to non-Window World dealers) and
“B” pricing (better pricing available to Window World dealers if they met a certain
volume 	threshold),125 	Window 	World 	promised 	Plaintiffs 	a 	uniform 	pricing
122 (Pls.’ Reply Br. 28.)
123 (Pls.’ Br. Supp. Mot. Partial Summ. J. 49; see also, e.g., Defs.’ 1st App. 1.App.133 (“[Leon]
was saying that we’d be given the best prices, you know. He said there’s nobody – his words
was nobody’s going to out beat you in prices. 	He said we’re the Walmart of the window
company and – nobody’s going to be able to compete against you.”) (James Ballard);
1.App.1891 (“[Leon] said that the buying power of Window World would provide me the best
price possible.”) (James Lomax, III); 1.App.2411 (“Every meeting I went to, they preached
how we had the best prices in the market.”) (Jonathan Gillette); 1.App.2726 (“Q: So—so what
was, when Leon used the phrase you were going [to] get the best price, what was he referring
to? A: He was referring to the best price – it was a better price than I would be able to get on
my own, is the exact phrase.”) (James Roland); 1.App.3870 (“the only mention of prices with
Rick Collins and with Todd Whitworth were – they used to use the analogy they’re the
Walmart of the window business; that we get the best prices for dealers than anybody else
can get in the country.”) (Kenneth Ford, Jr.); 1.App.4770 (“Todd told me he would get me the
best price, and it would be better than what I could get on my own.”) (Michael Edwards).)
124 (Pls.’ Reply Br. 28.)
125 (See, e.g., Pls.’ Br. Supp. Mot. Partial Summ. J. 9; 15-CVS-1 Third Am. Compl. ¶ 132; 15-
CVS-2 Third Am. Compl. ¶¶ 208–09, 368, 382(c).)

structure.126 	Through this pricing structure, Plaintiffs contend, Window World
represented “B” pricing was the best pricing available to anyone.127
68. 	Defendants seek summary judgment on Plaintiffs’ fraud claim based on the
Best Pricing Theory, arguing that:
(1) Window World’s “statements about best price were not fraudulent” as there is
“no reliable evidence that Plaintiffs could have obtained better pricing on their
own . . . [n]or is there evidence that [Window World] knew, when it made its
best-price statements, that Plaintiffs could get better prices on their own”;128
(2) Plaintiffs’ reliance on Defendants’ allegedly false best pricing statements was
not reasonable as “Plaintiffs had a duty to conduct diligence before joining the
[Window World] system”;129
(3) Window World’s “pricing representations aren’t actionable” as the “language
included in the written license agreements [only stated Window World] would
‘endeavor to arrange for the supply of the items to LICENSEE at prices which
126 (Pls.’ Reply Br. 28.)
127 (15-CVS-1 Third Am. Compl. ¶ 132; 15-CVS-2 Third Am. Compl. ¶ 224.) (“[Window World”
not only misrepresented to Window World franchisees, including Plaintiffs, the levels of
pricing available, but also took affirmative steps to hide the existence of “C” pricing from
Window World franchisees, including Plaintiffs. 	They did so to perpetuate the reasonable
but mistaken belief of Plaintiffs and other Window World franchisees that they were securing
the best available pricing when they hit the specified performance benchmarks.”)
128 (Defs.’ Resp. Pls.’ Mot. Summ. J. 50.)
129 (Defs.’ Resp. Pls.’ Mot. Summ. J. 50.)

are less than those changed [sic] to non-licensees within the trade area herein
defined.’ ”;130
(4) “the contractual promise is for [Window World] to help each dealer get better
window prices than ‘non-licensee’ competitors are getting in their respective
markets . . . [t]he price comparison is not between each Plaintiff and any other
[Window World] dealer” and Window World “did not make representations
about uniform pricing”;131
(5) “[t]he existence of non-uniform pricing . . . couldn’t have been material to
Plaintiffs’ decision to join [Window World] or take any other action”;132 and
(6) Plaintiffs cannot show Defendants’ allegedly false representations about best
pricing injured Plaintiffs.133
130 (Defs.’ Resp. Pls.’ Mot. Summ. J. 51; see Defs.’ 2d App. 2.App.16437 (Roland – January
2002 Licensing Agreement – Baton Rouge); 2.App.16448 (Roland – August 2002 Licensing
Agreement – New Orleans); 2.App.16458 (Roland – April 2005 Licensing Agreement – South
Houston, TX); 2.App.16585 (Lomax/Gillette – October 2002 Licensing Agreement – St. Louis);
2.App.16595 (Lomax/Gillette – September 2004 Licensing Agreement – Kansas City);
2.App.16605 (Lomax/Gillette – October 2005 Licensing Agreement – Central Missouri);
2.App.16730 (Edwards – May 2002 Licensing Agreement – Huntsville, AL); 2.App.16740
(Edwards – November 2005 Licensing Agreement – Florence, AL); 2.App.16788 (Ford –
October 2002 Licensing Agreement – York, PA); 2.App.16824 (Rose – November 2005
Licensing Agreement – Denver, CO); 2.App.16834 (Williamson – November 2005 Licensing
Agreement – Rockford, IL); 2.App.16861 (Jones – February 2002 Licensing Agreement –
Lexington).) 	However, the Ballard Plaintiffs’ 2006 Licensing Agreement for the Window
World of Phoenix, AZ store does not include this language and is silent regarding a pricing
guarantee. 	In their summary judgment 	briefing, Defendants 	acknowledge that the
“endeavor” promise only appeared in some earlier written agreements. (Defs.’ Br. Supp. Mot.
Summ. J. 32.)
131 (Defs.’ Resp. Pls.’ Mot. Summ. J. 53–55.)
132 (Defs.’ Resp. Pls.’ Mot. Summ. J. 57.)
133 (Defs.’ Resp. Pls.’ Mot. Summ. J. 59–66.)

69. 	As noted above, to survive a motion for summary judgment, Plaintiffs must
“produce a forecast of evidence demonstrating that the nonmoving party will be able
to make out at least a prima facie case at trial[.]” Cummings, 379 N.C. at 358 (cleaned
up). 	To sustain their Best Pricing Theory, Plaintiffs must be able to “produce a
forecast of evidence demonstrating” that (1) Window World represented to Plaintiffs
that, by joining the Window World system, they would receive “best pricing”; (2) this
representation was false; (3) Window World’s “best pricing” representation influenced
Plaintiffs’ decision to join or remain a part of the Window World system; (4) Window
World knew its “best pricing” representation was false and that its representation
would induce Plaintiffs to join Window World; (5) Plaintiffs’ reliance on Window
World’s false “best pricing” representation was reasonable; and (6) Plaintiffs suffered
harm. See Tillery Env’t, LLC, 2018 NCBC LEXIS 13, at *19–20.
70. 	As an initial matter, Plaintiffs and Defendants disagree as to the scope of
Window 	World’s 	“best 	pricing” 	representation. 	Defendants 	maintain 	“[w]hat
[Window World] promised was helping its dealers get better prices so they could beat
competitors in their respective markets,” but Window World “didn’t promise uniform
pricing”134 ( emphasis added). While the Jones/Shumate Plaintiffs testified that they
understood 	Window 	World’s 	“best 	pricing” 	representation 	to 	relate 	to 	their
competitors, i.e., non-licensees within their trade area,135 the Roland, Lomax/Gillette,
134 (Defs.’ Resp. Pls.’ Mot. Summ. J. 55.)
135 (See Defs.’ 1st App. 1.App.8450 (“Q: But you told me a moment ago that you could buy
them cheaper than everybody else, which would include other Window World owners; right?
A: Well, the competitors. 	Q: So you thought that you were to get the best prices and the

Edwards, Ford, Rose, Williamson/Hopkins and Ballard Plaintiffs testified that they
understood Window World’s “best pricing” representation to extend to other Window
World dealers as well.136
71. 	Based on a careful review of the evidence advanced by the parties, the Court
concludes that Defendants’ Motion for summary judgment on Plaintiffs’ fraud claim
lowest prices among any of your competitors? A: Among any of our competitors, yes. Q: But
not, for example, Mr. Roland in Baton Rouge? 	You weren’t expecting to get a better price
than Mr. Roland? A: No.”) (Jeremy Shumate); 1.App. 8154–55 (Tommy Jones).)
136 (See Defs.’ 1st. App. 1.App.2726, 2859, 2885–86 (“I mean, I was supposed to be receiving
the best price and I wasn’t even receiving the best price within the – within the Window
World system.”), 2903–04 (James Roland); 1.App.1375 (“Q: And the agreement was to provide
you with the best pricing available in the market? A: I don’t – there was nothing discussed
ever with the market. Q: It was just the best pricing in general? A: Yes. Q: Meaning you
could not go find a better price for the windows you were buying anywhere in the world? A:
Correct.”) (James Lomax, III); 1.App.2644 (“Q: What does that – what does the best price
mean to you? A: What I’ve always understood it as is Window World used the buying power
of all of our stores combined to give us the best possible price in the marketplace because we
can sell over one million windows per year. Q: Is that the best price you’re referring to the
best price among your competitors in your market area? A: I don’t believe it was defined like
that. Q: What did you understand it to be? A: The best price available for a window. Q: Not
limited to your market area but just in general? 	A: Yes. 	Q: Including any other Window
World franchisee or store owner? 	A: Yes.”) (Jonathan Gillette); 1.App.5853 (“Q: Best price
compared to what? 	A: That we could get in – out there anywhere. 	Any manufacturer,
anywhere. Q: Against any competitor? A: Yes. Q: In any geography? A: Just the best price
anywhere.”) (Michael Edwards); 1.App.5590 (Melissa Edwards); 1.App.3880 (“Well, you’re
using the term ‘in my market.’ And that term was never used in my original agreement with
Leon Whitworth. 	He mentioned specifically, ‘You’re going to get the best price in the
industry.’ ”) (Kenneth Ford, Jr.); 1.App.4179 (“Q: So you viewed best pricing as in relation to
other Window World dealers? A: In relation to other Window World dealers, and that we had
the edge on the market too.”) (Angell Wesner-Ford); 1.App.6271 (“It’s not the – it’s not what
the deal was with Leon and Todd. They were negotiating flat, all over, for the best price.”);
1.App.6458 (Christina Rose); 1.App.7242 (“And [Leon Whitworth] said, ‘It’s real simple. We
buy more windows than anybody, and we get the bust pricing. And if you join Window World,
you’ll get better pricing than any window dealer out there, period.’ ”) (Scott Williamson);
1.App.7047 (“My understanding was simply that we got the best price available to buy these
windows, period.”) (Brian Hopkins); 1.App.40 (“Now, we was guaranteed the lowest price.
The best price. And when we signed on, we was told there was A and B pricing, and come to
find out there is C pricing, which means they wasn’t paying 	.
Then if I'm paying A pricing or B pricing, I’m not getting the best price.”), 94 (James Ballard);
1.App.717–18 (Toni Ballard).)

based on the Best Pricing Theory should be granted as to the Jones/Shumate
Plaintiffs. 	These Plaintiffs failed to produce substantial evidence demonstrating
Defendants made a false representation concerning best pricing. In their depositions,
the Jones/Shumate Plaintiffs testified they understood Window World’s “best pricing”
representation to relate to their competitors, i.e., non-licensees within their trade
area. 	However, these Plaintiffs were unable to provide evidence demonstrating the
falsity of Window World’s representations to them.137 	Since the Jones/Shumate
Plaintiffs failed to provide substantial evidence that Window World made a false
representation of a material fact to them, the Court grants Defendants’ motion for
summary judgment on Plaintiffs’ fraud claim regarding best pricing in relation to
these Plaintiffs.
72. 	The remaining Plaintiffs, however, have provided evidence from which a
reasonable jury could find that Window World’s alleged “best price” representations
were false. 	Specifically, the Edwards Plaintiffs provided evidence both that a non-
licensee competitor was able to access better prices and that they could access better
prices by contracting with 	, directly, rather
137 (Defs.’ 1st App. 1.App.8744 (“Q: And are you aware of any nonlicensees within the trade
area that you had under Exhibit 600 who got a better price than you did? 	A: Not to my
knowledge. I don't have the access to my competitor’s purchasing prices.”) (Tommy Jones);
1.App.8473, 8475–77 (“Q: So you don’t know whether any other Window World store gets a
better price and you don’t know whether any of Window World Lexington’s competitors are
getting a better price. 	Is that fair? 	A: Yeah, I mean for me personally, no.”) (Jeremy
Shumate).)

than through Window World.138 	Similarly, the Lomax/Gillette Plaintiffs provided
evidence that a non-licensee competitor was able to access better prices, and the
Roland Plaintiffs provided evidence another distributor could offer better prices than
AMI for the same product.139
73. 	The remaining Plaintiffs also have provided evidence that Window World’s
alleged 	“best 	price” 	representations, 	as 	they 	understood 	them, 	were 	false 	by
producing evidence of Window World’s undisclosed “C” pricing level.140 Furthermore,
these Plaintiffs produced substantial evidence that Window World intentionally
138 (Volume One Pls.’ Dep. Excerpts, Ex. R, Melissa Edwards Dep. 129:11–20 (“Literally, right
before we joined the lawsuit, we came to our knowledge that an installer had put windows in
for one of our homeowners. 	And when we went to him to talk to him about that, he had
purchased the windows from an AMI distributor directly and had installed the window. And
when we asked him why he did not purchase the window through us . . . he said we couldn’t
match the price that he got.”), 133:12–14 (“And [Mr. Strauss from AMI] kind of threw off at
me, ‘If I didn’t have to pay so much to Window World corporate, I could get it for you a lot
cheaper.’ ”), ECF No. 984.18 (sealed); Volume One Pls.’ Dep. Excerpts, Ex. S, Michael
Edwards Dep. 78:5–11 (“There was occasions Brian Strauss [of AMI] said that we – if we
weren’t with Window World, we would get it for a lower price. I’ve had installers work for
me that get better pricing than we do on coil, caulk…[a]nd windows, too.”), ECF. No. 984.19.)
139 (Volume One Pls.’ Dep. Excerpts, Ex. H, James Lomax, III Dep. 94:18–20 (“I also saw proof
of an invoice that was inadvertently mailed to me that was way less than I was paying.”),
ECF No. 984.8; Volume One Pls.’ Dep. Excerpts, Ex. Q, James Roland Dep. 243:13–19 (“Q:
And ultimately Wincore was not able to provide you the pricing you were looking for; is that
right? A: No, I think they gave very good pricing. I think it was – it was considerably less
than what I was paying AMI for the same product.”), ECF. No. 984.17; see also Volume One
Pls.’ Dep. Excerpts, Ex. L, David King – AMI Dep. 106:14–23 (referring to an invoice to an
unnamed supply center customer showing a lower pricing than Window World’s “A” pricing),
ECF No. 984.12 (sealed); Volume Two Pls.’ Exs. Ex. 32, ECF No. 978.2 (emails between
Jonathan Gillette, James Lomax, III, and Dana Deem regarding a company receiving lower
prices on windows from AMI).)
140 The existence of “C” pricing is not disputed by the parties. 	Indeed, Defendants
acknowledge that it was a more favorable pricing level than the disclosed “A” and “B” pricing
levels. Defendants argue, however, that “C” pricing ended in 2011. (See Defs.’ Br. Supp. Mot.
Summ. J. 94.)

concealed or denied the existence of “C” pricing.141 	Since “[w]hether the defendant
acts with the requisite scienter for fraud is generally a question of fact for the jury,”
and because Plaintiffs have provided substantial evidence that Defendants were
aware of the falsity of their “best price” representations, the Court concludes that the
remaining Plaintiffs have satisfied their burden at the summary judgment stage of
showing Defendants’ fraudulent intent. Latta, 202 N.C. App. at 600 (citing Pearce v.
American Defender Life Ins. Co., 316 N.C. 461, 468 (1986)).
74. 	In addition, Plaintiffs provide substantial evidence to rebut Defendants’
assertion that Plaintiffs’ reliance on Defendants’ alleged oral representations as to
best pricing was unreasonable since the contractual promise, as memorialized in the
parties’ written agreements, was for Window World “to help each dealer get better
window 	prices 	than 	‘non-licensee’ 	competitors 	are 	getting 	in 	their 	respective
markets.”142 For example, Plaintiffs point to evidence from which a reasonable jury
could conclude that Defendants frequently downplayed the importance of the written
agreements in governing the parties’ relationship, referring to the agreements as
“just paperwork,” and that the parties operated for months or years in the absence of
141 (See, e.g., Defs.’ 1st App. 1.App.2046 (“I don’t know what Mr. [Todd] Whitworth did other
than deny the existence of anything other than A or B.”) (James Lomax, III); 1.App.5908–10
(Michael Edwards); Volume Three Pls.’ Exs. Ex. 61, ECF No. 979.1 (sealed), Ex. 62, ECF No.
979.2 (sealed), Ex. 63, ECF No. 979.3 (sealed), Ex. 64, ECF No. 979.4 (sealed), Ex. 65, ECF
No. 979.5 (emails in which Window World represents that B pricing was “preferred pricing.”)
(sealed).)
142 (Defs.’ Resp. Pls.’ Mot. Summ. J. 53–55.)

an executed written agreement.143 	Based on the proffered evidence, a jury could
rationally conclude that Plaintiffs were reasonable in their reliance on Defendants’
oral representations concerning best pricing, even if these representations were
different from those memorialized in the executed written agreements.
75. 	Last, Plaintiffs have offered sufficient evidence at the summary judgment
stage to permit a reasonable factfinder to conclude Plaintiffs were harmed in an
amount equal to the difference between “what they were promised—best pricing—
and what they actually received.”144
76. 	Based on the above, the Court finds genuine issues of material fact remain
as 	to 	the 	breadth 	of 	Window 	World’s 	best 	pricing 	promise 	to 	the 	Roland,
Lomax/Gillette, Edwards, Ford, Rose, Williamson/Hopkins and Ballard Plaintiffs, the
materiality of Window World’s best pricing promise to these Plaintiffs’ decisions to
143 (See, e.g., Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 2; Defs.’ 1st App. 1.App.1325–26 (James
Lomax, III); 1.App.3135, 3538–39 (James Roland); 1.App.4783, 5817 (Michael Edwards);
1.App.5349, 5409–10 (Melissa Edwards); 1.App.7325, 7800 (Scott Williamson); 1.App.6335
(“I didn’t look at these things [written agreements] as being – I mean, I – I really looked at
what me, Todd and Leon discussed as what the deal was. And again, it was – best pricing
was one of those things.”) (Rick Rose); 1.App.1976–78 (“That Leon’s going to make sure I pay
the best price in my market. That’s not what we – he explained to me orally . . . I do have
belief that that’s not what we agreed to . . . [The written agreement] does not memorialize
that agreement properly that I had with Leon . . . I trusted what he was telling me, that [the
written agreement’s] just paperwork.”) (James Lomax, III); 1.App.2903–04 (“What – what
Window World – what Todd – I mean, what Todd and Leon had represented to me was is that
I was going to be getting the very best prices that were available, prices better than what I
could get on my own . . . I mean, we operated after this [written agreement] expired, I didn’t
give them notice, they didn’t give me notice, and it – we operated without any kind of a
contract for three years. 	So I don’t believe that this was the – the doc – I don’t think this
document accurately or completely reflects the arrange – business arrangement we had.”)
(James Roland).)
144 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 72; see also Bersin Report; Volume Seven Pls.’ Exs.
Ex. 217 [hereinafter “Bersin Schedules”], ECF No. 983.37 (sealed); Bersin Aff.)

join 	or 	remain 	in 	the 	Window 	World 	system, 	whether 	Window 	World’s
representations concerning best pricing were false, whether the remaining Plaintiffs’
reliance on Window World’s best pricing promise was reasonable, whether these
Plaintiffs were harmed by Defendants’ pricing representations, and whether Window
World acted with the requisite scienter. The Court will accordingly deny the Cross-
Motions as they relate to these Plaintiffs to the extent the parties seek summary
judgment on Plaintiffs’ fraud claim based on the Best Pricing Theory.145
77. 	Regarding Defendants’ statute of limitations argument under N.C.G.S. § 1-
52(9), the Court again concludes that the remaining Plaintiffs’ fraud claim—this time
based on best pricing—is not barred by the limitations period at the summary
judgment stage. 	Plaintiffs have provided substantial evidence that most of these
Plaintiffs did not discover the facts constituting fraud as it relates to best pricing until
“after this lawsuit was filed.”146
78. 	In their depositions, the Ford, Rose, Williamson/Hopkins, and Ballard
Plaintiffs testified they did not discover the existence of C pricing until 2015.147 While
145 As discussed previously, the Court will grant Defendants’ motion for summary judgment
on the Jones/Shumate Plaintiffs’ fraud claim based on the Best Pricing Theory.
146 (Pls.’ Br. Supp. Mot. Partial Summ. J. 16; see infra note 147.)
147 (See, e.g., Volume One Pls.’ Dep. Excerpts, Ex. Z, Rick Rose Dep. 149:25–150:2 (“In 2015,
in Baton Rouge at my attorney’s office, I also became privy to what C pricing actually was,
and I never was able to get C pricing.”), ECF No. 984.26; Volume Two Pls.’ Dep. Excerpts,
Ex. AA, Scott Williamson Dep. 207:25–208:4 (“Q: The whole issue of C pricing is something
you found out first after the lawsuit? 	A: Yes.”), ECF No. 985.1 (sealed); Volume Two Pls.’
Dep. Excerpts, Ex. BB, Brian Hopkins Dep. 168:12–16 (“Q: [W]ould I be correct in
understanding…that you didn’t know anything about C pricing until after this lawsuit was
filed? A: Correct”), ECF No. 985.2; Volume Two Pls.’ Dep. Excerpts, Ex. DD, Angell Wesner-
Ford Dep. 198:15–18 (“Well, from the disclosure documents within the lawsuit, we found out

the Roland and Lomax/Gillette Plaintiffs acknowledge that they learned about the
existence of C pricing in May 2011,148 the Tolling Agreement entered into by these
Plaintiffs preserves their fraud claims.149 Similarly, the Edwards Plaintiffs, who also
acknowledge they learned about C pricing in May 2011 but did not sign a tolling
agreement, partially base their fraud claim upon evidence of better pricing they
learned of “right before [they] joined the lawsuit.”150 	Since Plaintiffs provided
evidence that creates a genuine issue of material fact as to when Plaintiffs’ cause of
action for fraud based on best pricing accrued, the Court declines to grant summary
judgment based on the statute of limitations in N.C.G.S. § 1-52(9). 	However, the
Court will grant Defendants’ Motion for summary judgment as it relates to the
about the C pricing. So they weren’t being honest about that because they said B pricing was
the best price.”), ECF No. 985.4; Defs.’ 1st App. 1.App.149 (“Well, the C pricing they hid.
That’s something we wasn’t aware of until after the lawsuit.”) (James Ballard).)
148 (Pls.’ Br. Supp. Mot. Partial Summ. J. 16; see also Volume One Pls.’ Dep. Excerpts, Ex. X,
James Lomax, III Dep. 106:1–4 (“[Mr. Whitworth] told me in the beginning five or ten bucks
a window, which was a lie, and continued that lie until we found out in 2011 about C
pricing.”), ECF No. 984.24 (sealed); Volume One Pls.’ Dep. Excerpts, Ex. Q, James Roland
Dep. 20:2–4 (Q: And did [Dana Deem] tell you about [C pricing] at a meeting in Houston in
May of 2011? A: He did.”).)
149 Additionally, the Lomax/Gillette Plaintiffs received the invoices upon which they partially
base their fraud claim in June 2012, within the three-year statute of limitations. (Volume
Two Pls.’ Exs. Ex. 32.)
150 (Defs.’ 1st App. 1.App.4771 (Q: Didn’t – didn’t you learn from Dana Deem that Window
World had C pricing in 2011? A: We were in Houston, and Dana said there was a C pricing,
and there was no more.”) (Michael Edwards); Volume One Pls.’ Dep. Excerpts, Ex. R, Melissa
Edwards Dep. 129:11–20 (“Literally, right before we joined the lawsuit, we came to our
knowledge that an installer had put windows in for one of our homeowners. And when we
went to him to talk to him about that, he had purchased the windows from an AMI distributor
directly and had installed the window. And when we asked him why he did not purchase the
window through us…he said we couldn’t match the price that he got.”).)

Edwards Plaintiffs’ fraud claims under the Best Pricing Theory based on C pricing,
which they admit they learned about more than three years before they filed their
claims.151
Ground 3: Fraudulent Concealment Theory
79. 	Third, Plaintiffs argue that Window World committed fraud or fraudulent
concealment by “[withholding] material information from Plaintiffs when presenting
them with licensing agreements to sign.”152 Plaintiffs contend that, by withholding
such material information, Defendants failed to make franchise disclosures as
required under 16 Code of Federal Regulations (“C.F.R.”) § 436.1, et seq. (the
“Franchise Rule” or the “Franchise Disclosure Rule”).153
80. 	Fraud by omission arises when a defendant “had a duty to disclose material
information to [the plaintiff], as silence is fraudulent only when there is a duty to
speak.” Lawrence, 2007 NCBC LEXIS 20, at *8. This Court has previously identified
the following as elements a plaintiff must prove to succeed on a claim for fraud by
omission:
(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
151 The Edwards Plaintiffs’ fraud claims under the Best Pricing Theory based on pricing
external to the Window World system shall survive Defendants’ Motion under Rule 56.
152 (Pls.’ Br. Supp. Mot. Partial Summ. J. 51.)
153 (Pls.’ Br. Supp. Mot. Partial Summ. J. 51–52.) 	Plaintiffs argue that Window World
concedes it owed franchise disclosures to each Plaintiff each time it presented a licensing
agreement to sign, (Volume One Pls.’ Exs. Ex. 10, ECF No. 977.10; Pls.’ Br. Opp’n Defs.’ Mot.
Summ. J. Ex. 2; Volume Seven Pls.’ Exs. Ex. 188 (material changes), ECF No. 983.8 (sealed)),
but made no franchise disclosures to Plaintiffs when they signed them (Volume Seven Pls.’
Exs. Ex. 188; Volume One Pls.’ Exs. Ex. 12 40–42.).

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.
Id. at *9 (quoting Breeden v. Richmond Comm. Coll., 171 F.R.D. 189, 195 (M.D.N.C.
1997)). Our appellate courts have further held that a duty to disclose arises where:
(1) 	‘a 	fiduciary 	relationship 	exists 	between 	the 	parties 	to 	the
transaction’; (2) there is no fiduciary relationship and ‘a party has taken
affirmative steps to conceal material facts from the other’; and (3) there
is no fiduciary relationship and ‘one party has knowledge of a latent
defect in the subject matter of the negotiations about which the other
party is both ignorant and unable to discover through reasonable
diligence.’
Hardin, 199 N.C. App. at 696 (quoting Sidden, 137 N.C. App. at 675).
81. 	In a commercial transaction, “[a] duty to disclose material facts arises
‘[w]here material facts are accessible to the vendor only, and he knows them not to
be within the reach of the diligent attention, observation and judgment of the
purchaser.” Everts v. Parkinson, 147 N.C. App. 315, 325 (2001) (emphasis removed).
A duty to disclose may also be imposed by operation of law. See, e.g., Williams v. E.
Coast Sales, Inc., 59 N.C. App. 700, 703 (1982).154
82. 	Following the above-cited case law and the requirements enumerated by the
Franchise Rule, Plaintiffs argue that Window World (1) had a duty to disclose
154 Plaintiffs argue that this Court has previously determined that the Franchise Rule creates
a duty to disclose material facts for purposes of a fraud claim in Haigh v. Superior Ins. Mgmt.
Grp., 2017 NCBC LEXIS 100, at *10–11 (N.C. Super. Ct. Oct. 24, 2017). (Pls.’ Br. Supp. Mot.
Partial Summ. J. 51–52.) However, Haigh interpreted the obligation to disclose information
under the Franchise Rule in the context of N.C.G.S. § 75-1.1.

financial information (including about rebates) to Plaintiffs155; (2) “was fully aware
of [or, at a minimum, recklessly indifferent to] its legal obligation to make franchise
disclosures”156; and (3) willfully concealed material information they were required
by law to disclose, including “critical, material information about the financial terms
of 	the 	parties’ relationship.”157 	Plaintiffs further argue 	that Window 	World’s
“concealment 	of 	material 	facts” 	harmed 	Plaintiffs 	because 	“[Window 	World’s]
consciously false statements and noncompliance with franchise law allowed [Window
World] to maintain its economic fraud.”158 Additionally, as Defendants’ concealment
of material facts fraudulently induced Plaintiffs to join and remain a part of the
Window World system, Plaintiffs contend that Window World’s “fraud also renders
the written agreements . . . void and unenforceable as a matter of law.”159
83. 	Window World argues, as a threshold matter, that any fraud claims based
on the Franchise Rule are time-barred by the applicable statutes of limitations.160
Plaintiffs’ Franchise Rule claims, Defendants maintain, “accrued when Plaintiffs
received copies of licensing agreements for signature.”161 Defendants further argue
155 (Pls.’ Br. Supp. Mot. Partial Summ. J. 52.)
156 (Pls.’ Br. Supp. Mot. Partial Summ. J. 53–54.)
157 (Pls.’ Br. Supp. Mot. Partial Summ. J. 55.)
158 (Pls.’ Br. Supp. Mot. Partial Summ. J. 56.)
159 (Pls.’ Br. Supp. Mot. Partial Summ. J. 56.)
160 (Defs.’ Br. Supp. Mot. Summ. J. 41.)
161 (Defs.’ Br. Supp. Mot. Summ. J. 41.)

that the discovery rule does not toll this period as Plaintiffs “knew facts from which
they could determine a violation of the Franchise Rule when they signed their initial
licensing agreements.”162
84. 	Under the discovery rule, a plaintiff need only know the “facts” that “would
enable him to discover the defendant’s wrongdoing in the exercise of due diligence.”
Doe, 242 N.C. App. at 543. Ignorance of the law does not toll the statute of limitations.
Lerch Bros. v. McKinne Bros., 187 N.C. 419, 420 (1924) (“Ignorance of a material fact
may excuse a party, but ignorance of the law does not excuse him from the legal
162 (Defs.’ Br. Supp. Mot. Summ. J. 43.) 	“Franchise” is defined by the Federal Trade
Commission as
any continuing commercial relationship or engagement, whatever it may be
called, in which the terms of the offer or contract specify, or the franchise seller
promises or represents, orally or in writing, that:
(1) The franchisee will obtain the right to operate a business that is identified
or associated with the franchisor’s trademark, or to offer, sell, or distribute
goods, services, or commodities that are identified or associated with the
franchisor’s trademark;
(2) The franchisor will exert or has the authority to exert a significant degree
of control over the franchisee’s method of operation, or provide significant
assistance in the franchisee’s method of operation; and
(3) As a condition of obtaining or commencing operation of the franchise, the
franchisee makes a required payment or commits to make a required
payment to the franchisor or its affiliate.
16 C.F.R. § 436.1(h). 	Since the Licensing Agreements covered operation of the Plaintiffs’
businesses with Window World’s trademarks (see, e.g., Defs.’ 2d App. 2.App.16435 § 1), the
level of control Window World would have over the Plaintiffs’ businesses (see, e.g., Defs.’ 2d
App. 2.App.16436–37 § 4.), the assistance Window World would provide Plaintiffs in setting
up their businesses (see, e.g., Defs.’ 2d App. 2.App.16437 § 5), and the fees Plaintiffs would
pay as a condition of operating their businesses (see, e.g., Defs.’ 2d App. 2.App.16435–45),
Defendants contend Plaintiffs possessed the information necessary to determine if their
relationship with Window World was a franchise relationship at the time they received the
Licensing Agreements. (See Defs.’ Br. Supp. Mot. Summ. J. 43.)

consequences of his conduct.”); see also In re Lowe’s Cos., 517 F. Supp. 3d 484, 502
(W.D.N.C. 2021) (“The running of a period of limitations is delayed by the discovery
rule while the facts of the wrong remain unknown, but the statute of limitations is
not tolled if only the legal theory is not yet understood.”).
85. 	Plaintiffs, in response, argue that their Franchise Rule claims did not accrue
when Plaintiffs received copies of the Licensing Agreements for signature because of
Window World’s “years-long efforts to cover up its franchisor status and its knowing
violations 	of 	franchise 	law.”163 	The 	wording 	and 	contents 	of 	the 	Licensing
Agreements, Plaintiffs contend, was a continuation of Window World’s efforts to
conceal 	its 	franchisor status. 	Plaintiffs 	further argue 	that 	holding 	Plaintiffs’
Franchise Rule claims to have accrued when copies of Licensing Agreements were
received for signature would result in their fraud claim being time-barred “even
though [Window World] has consistently claimed, in the face of all evidence to the
contrary, that [Window World] itself didn’t and couldn’t know it was a franchisor until
August 2011.”164
86. 	The Court declines to find, as a matter of law, that the statute of limitations
on this aspect of Plaintiffs’ fraud claim began to accrue at the time the Licensing
Agreements were signed. A cause of action for fraud does not accrue until the injured
party discovers “the facts constituting the fraud.” 	N.C.G.S. § 1-52(9). 	Our State’s
Supreme Court “has held in numerous cases that in an action grounded on fraud, the
163 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 51.)
164 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 50.)

statute of limitations begins to run from the discovery of the fraud or from the time
it should have been discovered in the exercise of reasonable diligence.” 	Calhoun v.
Calhoun, 18 N.C. App. 429, 432 (1973) (emphasis added) (referencing Wimberly v.
Washington Furniture Stores, Inc., 216 N.C. 732 (1940); Brooks v. Ervin Constr. Co.,
253 N.C. 214 (1960); B-W Acceptance Corp. v. Spencer, 268 N.C. 1 (1966)). 	It would
be unreasonable for this Court to hold that Plaintiffs failed to exercise reasonable
diligence and should have discovered that Window World was a franchisor at the time
Plaintiffs received copies of the Licensing Agreements when Defendants testified that
they “didn’t and couldn’t know [Window World] was a franchisor until August
2011.”165 	Thus, for the purposes of this Order and Opinion, the Court will treat
Plaintiffs’ claim as having accrued at the time Window World made its franchise
disclosures to Plaintiffs on 11 October 2011.
87. 	As Defendants rightly point out, the three-year statute of limitations would
ordinarily “doom” the Non-Tolling Plaintiffs’ fraud claims even when assuming the
accrual date to be 11 October 2011.166 These Plaintiffs contend, however, that they
“have not delayed unreasonably in seeking relief against [Window World],” arguing
that Window World “is barred from relying on any statute of limitations defense
against Plaintiffs in light of the continuing wrong doctrine.”167 The Court agrees.
165 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 50.)
166 (Defs.’ Br. Supp. Mot. Summ. J. 2.)
167 (15-CVS-1 Third Am. Compl. ¶¶ 156, 161; 15-CVS-2 Third Am. Compl. ¶¶ 255, 260.)

88. 	Our Supreme Court has held that the continuing wrong doctrine “provide[s]
that the applicable limitations period starts anew in the event that an allegedly
unlawful act is repeated.” 	Quality Built Homes Inc. v. Town of Carthage, 371 N.C.
60, 70 (2018). 	When determining whether the continuing wrong doctrine applies,
“the reviewing court ‘must examine the wrong alleged by [the plaintiff] to determine
if the purported violation is the result of ‘continual unlawful acts,’ each of which
restarts the running of the statute of limitations, or if the alleged wrong is instead
merely the ‘continual ill effects from an original violation.’ ” 	Id. (citing Williams v.
Blue Cross Blue Shield, 357 N.C. 170, 179 (2003)).
89. 	In the Court’s Order and Opinion on Defendant Tammy Whitworth’s Motion
to Dismiss, this Court found that “Plaintiffs have alleged facts that, when taken as
true, show that [Window World] engaged in the allegedly wrongful conduct that gave
rise to each claim up to the time the original complaints were filed in these actions
on January 2, 2015.” 	Window World of Baton Rouge, LLC v. Window World, Inc.,
2017 NCBC LEXIS 60, at *24 (N.C. Super. Ct. July 12, 2017). Thus, this Court held
that Plaintiffs had alleged sufficient facts to survive the applicable statute of
limitations under the continuing wrong doctrine at the motion to dismiss stage of this
litigation. 	Id. 	The Court does not conclude differently at the summary judgment
stage—as described earlier in this opinion, Plaintiffs have provided substantial
evidence to support a finding that “many of [Window World’s] wrongful acts are

demonstrably 	continued 	wrongs, 	most 	particularly 	[Window 	World’s] 	repeated
breaches of its pricing and rebate promises.”168
90. 	As to the merits of Plaintiffs’ claim for fraud based on Window World’s
alleged withholding of “material information from Plaintiffs . . . that franchise law
obligated [Window World] to disclose in an FDD,”169 the Court’s inquiry under Rule
56 hinges on whether Window World possessed a duty to disclose this information at
the beginning of the parties’ relationship.
91. 	Plaintiffs allege Window World had a duty to disclose financial information,
including information about C pricing and the rebates Plaintiffs paid, for three
reasons: (1) the Franchise Rule “imposed on [Window World] a duty to disclose
voluminous information to Plaintiffs, including detailed financial information about
what payments Plaintiffs were obligated to make and how much [Window World]
earned from the parties’ relationship”170; (2) Window World “voluntarily made
incomplete and inaccurate disclosures about the rebates Plaintiffs would pay to
induce them to become dealers”171; and (3) Window World “took affirmative steps to
conceal material facts about the rebates Plaintiffs paid, including by instructing its
168 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 53; see supra notes 117–20, 146 and accompanying
text.) Plaintiffs additionally argue that equitable estoppel bars Window World from relying
on statute of limitations defenses. (See, e.g., Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 53.) Since
the Court finds this aspect of Plaintiffs’ fraud claims survives Defendants’ statute of
limitations argument due to the continuing wrong doctrine, the Court declines to address
Plaintiffs’ equitable tolling argument.
169 (Pls.’ Br. Supp. Mot. Partial Summ. J. 51.)
170 (Pls.’ Br. Supp. Mot. Partial Summ. J. 52.)
171 (Pls.’ Br. Supp. Mot. Partial Summ. J. 52.)

employees and vendors to keep [Window World’s] rebate structure (including C
pricing) secret from Plaintiffs, which also created a duty to disclose.”172 Defendants,
in contrast, maintain Plaintiffs’ omission theory fails because the “Franchise Rule
doesn’t create a state-law duty to disclose” and “the common law didn’t create any
disclosure duties either . . . [because] there is never a duty to disclose information
unless it is material.”173
92. 	As evidenced by the case law cited in the parties’ briefs, courts dispute
whether the federal Franchise Rule creates a disclosure duty under North Carolina
law for omission-based fraud claims.174 	However, this Court need not consider
whether the Franchise Rule creates a disclosure duty because Plaintiffs have
provided substantial evidence to support a finding that a duty to disclose arose under
the common law. 	As described in earlier sections of this opinion, Plaintiffs have
provided substantial evidence that Window World made incomplete and inaccurate
disclosures about the rebates Plaintiffs would pay.175 As this State’s Supreme Court
stated in Ragsdale, even when no duty to disclose exists, a party who chooses to speak
has a duty to make a full and fair disclosure of facts concerning the matters on which
he chooses to speak. Ragsdale, 286 N.C. at 139 (citing Low, 207 Cal. App. 2d at 484.
172 (Pls.’ Br. Supp. Mot. Partial Summ. J. 52.)
173 (Defs.’ Reply Br. Supp. Mot. Summ. J. 27–28.)
174 (See, e.g., Defs.’ Br. Supp. Mot. Summ. J. 51–54; Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 55–
59.)
175 (See supra ¶¶ 43–60 and related notes.)

Furthermore, as previously discussed, Plaintiffs have provided substantial evidence
to permit a finding that Window World “took affirmative steps to conceal material
facts about the rebates Plaintiffs paid [and C pricing].”176 	In North Carolina, “[a]
duty to disclose arises where . . . (2) there is no fiduciary relationship and ‘a party has
taken affirmative steps to conceal material facts from the other[.]’ ” Hardin, 199 N.C.
App. at 696.
93. 	Also as discussed earlier in this opinion, and based on a careful review of
the evidence advanced by the parties, the Court finds that Plaintiffs have provided
substantial evidence to permit a reasonable jury to conclude that (1) information
concerning pricing and rebates was material to Plaintiffs, inducing them, at least in
part, to join or remain a part of the Window World system; (2) Plaintiffs’ reliance on
the omission (or misrepresentation) was reasonable; (3) Window World possessed the
requisite scienter when misrepresenting or concealing information about pricing and
rebates; and (4) Plaintiffs were harmed by Window World’s omissions.177 However,
as also stated earlier in this opinion, genuine issues of material fact remain as to: the
materiality of Window World’s pricing and rebate representations; whether Window
World intended to deceive Plaintiffs; whether Plaintiffs reasonably relied on Window
World’s pricing and rebate representations or omissions;178 and whether Plaintiffs
176 (Pls.’ Br. Supp. Mot. Partial Summ. J. 52; see supra ¶¶ 54–56, 59–60, 72–73, 76
and related notes.)
177 (See supra ¶¶ 43–76 and related notes.)
178 For instance, many Plaintiffs admit in their depositions they did not read or simply
skimmed the Licensing Agreements and FDDs when they received them. 	(E.g., Defs.’ 1st

were harmed by Window World’s alleged misrepresentations or omissions.179 	The
foregoing are all questions of fact that must be resolved by a jury. Head, 371 N.C. at
9. 	Accordingly, the Court will deny the Cross-Motions to the extent they seek
summary judgment on Plaintiffs’ fraud claim based on the Fraudulent Concealment
Theory.
Ground 4: Franchise Disclaimer Theory
94. 	Plaintiffs next argue that Window World “committed fraud by including the
franchise 	disclaimer 	in 	the 	Licensing 	Agreements 	Plaintiffs 	signed,”180
misrepresenting to Plaintiffs that Window World was not a franchisor and that
Plaintiffs were not franchisees.181 	Plaintiffs allege that (1) “no dispute exists that
App. 1.App.4873, 5915 (Michael Edwards); 1.App.7820 (Scott Williamson); 1.App.6857 (Rick
Rose); 1.App.6593 (Christina Rose); 1.App.1474 (James Lomax, III); 1.App.2623 (Jonathan
Gillette); 1.App.3576 (James Roland); 1.App.3904–05 (Kenneth Ford, Jr.); 1.App.37 (James
Ballard); 1.App.8442–43 (Jeremy Shumate).) 	Thus, it is unclear whether Plaintiffs would
have relied upon the omitted rebate or pricing information had it been timely disclosed.
179 (See supra ¶¶ 43–76.)
180 (Pls.’ Br. Supp. Mot. Partial Summ. J. 56.)
181 (Pls.’ Br. Supp. Mot. Partial Summ. J. 56.) Between 2008 and 2011, Plaintiffs’ executed
Licensing Agreements contained the following franchise disclaimer language:
Nothing in this Licensing Agreement shall be deemed to create any type
of . . . franchise, or other business relationship other than LICENSOR and
LICENSEE. The parties acknowledge and agree that, to the extent the state
in which the LICENSEE is granted its license has enacted statutes, codes, or
regulations which govern franchises, the LICENSEE and LICENSOR are not
subject to such laws and regulations and the LICENSOR shall not be required
to provide any disclosures to LICENSEE other than those previously made to
LICENSEE or made herein. 	The LICENSEE agrees that the terms of the
Licensing Agreement and the LICENSOR/LICENSEE relationship created
hereunder shall be determinative of the rights and interests between the
parties 	notwithstanding 	any 	statutes, 	rules, 	or 	regulations 	governing
franchises in the state where the LICENSEE does business.

[Window World’s] disclaimer of franchise law was false”; (2) Defendants knew the
franchise disclaimer was false; (3) Defendants possessed fraudulent intent in making
the franchise disclaimer; (4) Plaintiffs reasonably relied on Window World’s false
disclaimer of franchise law; and (5) Plaintiffs were harmed because Window World
“employed the franchise disclaimer to hide the truth about its rebates and pricing.”182
95. 	Defendants 	counter 	that 	Plaintiffs’ 	franchise-stipulation 	theory 	fails
because the franchise disclaimer is not a misrepresentation of fact—which they define
as a detail subject to objective verification. 	See Forbis, 361 N.C. at 526–27 (stating
that fraudulent or negligent misrepresentation requires “[f]alse representation or
concealment of a material fact”); Wilson v. Kellogg Brown, 525 F.3d 370, 377 (4th Cir.
(Defs.’ 2d App. 2.App.16473–74 (Window World of Baton Rouge, LA – July 2010 Licensing
Agreement); 2.App.16486–87 (Window World of Lafayette, LA – July 2010 Licensing
Agreement); 2.App.16499–16500 (Window World of Tampa, FL – July 2010 Licensing
Agreement); 2.App.16512–13 (Window World of New Orleans, LA – July 2010 Licensing
Agreement); 2.App.16525–26 (Window World of Houston, TX – July 2010 Licensing
Agreement); 2.App.16540 (Window World of Dallas, TX – March 2011 Licensing Agreement);
2.App.16558 (Window World of Fort Worth, TX – March 2011 Licensing Agreement);
2.App.16576 (Window World 	of 	Tri State Area – April 2011 Licensing Agreement);
2.App.16630–31 (Window World of St. Louis – May 2010 Licensing Agreement); 2.App.16645
(Window World of Columbia, MO – April 2011 Licensing Agreement); 2.App.16663 (Window
World of Peoria, IL – April 2011 Licensing Agreement); 2.App.16681 (Window World of
Springfield, IL – April 2011 Licensing Agreement); 2.App.16699–16700 (Window World of St.
Louis, MO – April 2011 Licensing Agreement); 2.App.16718 (Window World of Kansas City,
MO – April 2011 Licensing Agreement); 2.App.16754 (Window World of Huntsville, AL –
September 2008 Licensing Agreement); 2.App.16765–66 (Window World of North Atlanta,
GA – July 2009 Licensing Agreement); 2.App.16779–80 (Window World of North Atlanta, GA
– February 2010 Licensing Agreement); 2.App.16803–04 (Window World of Central, PA –
June 2010 Licensing Agreement); 2.App.16851 (Window World of Joliet, IL – May 2011
Licensing Agreement); 2.App.16878 (Window World of Lexington, KY – March 2011
Licensing Agreement).)
182 (Pls.’ Br. Supp. Mot. Partial Summ. J. 56–59.)

2008) (“[F]raud may only be found in expressions of fact which (1) admit of being
adjudged true or false in a way that (2) admit of empirical verification.”). 	Rather,
Defendants maintain that the disclaimer in the Licensing Agreements was “at most
a non-actionable representation of a legal opinion”183 as to the relationship between
the parties, and both Plaintiffs and Defendants were in an equally good position to
judge the nature of that relationship.184 	See Dalton v. Dalton, 164 N.C. App. 584,
586–87 (2004) (“Generally speaking, a party cannot attack the making of a contract
on 	the 	basis 	of 	fraud 	where 	the 	proof 	regarding 	the 	misrepresentation 	or
misstatement relates to a matter of law.”).
96. 	Defendants further argue that there was “no actual or reasonable reliance
[on the disclaimer]”185 and, therefore, that Plaintiffs have failed to “produce evidence
to support an essential element of [their] claim[.]” Dobson, 352 N.C. at 83. According
to 	Defendants, 	“Plaintiffs 	can’t 	prove 	that 	they 	actually 	relied 	on 	the
stipulation . . . [because] 	[o]nly 	one 	Plaintiff 	recalled 	reading 	the 	no-franchise
stipulation, but he did not understand its significance or seek further information.”186
Defendants argue, in addition, that, “[e]ven if Plaintiffs had proffered evidence that
they read the no-franchise stipulations and understood what they meant, they still
183 (Defs.’ Resp. Pls.’ Mot. Summ. J. 71.)
184 (Defs.’ Br. Supp. Mot. Summ. J. 62–63.)
185 (Defs.’ Reply Br. Supp. Mot. Summ. J. 30.)
186 (Defs.’ Resp. Pls.’ Mot. Summ. J. 71; see also Defs.’ 1st App. 1.App.7001–03 (Brian
Hopkins).)

didn’t reasonably rely on them . . . [because] [a]s Plaintiffs admit, such stipulations
have no legal effect.”187
97. 	Based on its careful review of the proffered evidence, the Court agrees with
Defendants that Plaintiffs have not produced sufficient evidence to support the
reliance element of their fraud claim based on the franchise disclaimer. “Justifiable
reliance is an essential element of both fraud and negligent misrepresentation.”
Helms v. Holland, 124 N.C. App. 629, 635 (1996); see, e.g., Marcus Bros. Textiles, Inc.
v. Price Waterhouse, LLP, 350 N.C. 214, 224 (1999) (noting that fraud and negligent
misrepresentation require analogous showings of reasonable or justifiable reliance,
respectively). The question of reliance is normally “a question for the jury, unless the
facts are so clear that they support only one conclusion.” Forbis, 361 N.C. at 527.
98. 	Here, 	as 	Defendants 	suggest, 	to 	show 	actual 	reliance 	regarding 	the
franchise disclaimer, Plaintiffs, at a minimum, must produce evidence that they read
the franchise disclaimer or knew of its existence prior to signing the Licensing
Agreements. 	The Lomax/Gillette, Edwards, Ford, Rose, Jones/Shumate, Ballard,
Williamson/Hopkins, and Roland Plaintiffs, however, have all conceded that they did
not actually read the Licensing Agreements, have no memory of reading the Licensing
Agreements,188 	put 	no 	stock 	in 	their 	written 	contracts 	as 	they 	were 	“just
187 (Defs.’ Reply Br. Supp. Mot. Summ. J. 30.)
188 The Lomax/Gillette, Ford, Rose, and Shumate Plaintiffs testified that they did not read
the Licensing Agreements or seek legal advice before signing them. 	(Defs.’ 1st App.
1.App.1235–36 (“Q: Did you tell Window World that when you signed the [licensing]
agreement at Exhibit 680? A: I never read the agreement . . . Q: When is the first time you
read [the licensing agreement]? A: Probably after we filed suit.”), 1978 (“Q: But it’s fair to

paperwork,”189 glossed over the allegedly relied-upon franchise disclaimer,190 or
testified that the franchise disclaimer did not mean anything to them as they knew
nothing about franchise law.191 	Because all Plaintiffs concede that they either did
say that you didn’t read the [licensing agreement] before you signed it; right? A: Absolutely
correct.”) 	(James 	Lomax, 	III); 	1.App.2410 (“Q: 	Did 	you 	actually read 	the 	[licensing
agreement]? A: No. Q: Why not? A: I trusted them . . . Q: Did you ask Mr. Whitworth for
the opportunity to have an attorney review it? A: No.”), 2561 (“Q: Is it your testimony you’ve
never read any of your agreements? A: I may have scanned over them but word for word, no.
And it’s mostly over my head because it’s a lot of legal jargon.”) (Jonathan Gillette);
1.App.3904–05 (“Q: So when I asked you a moment ago if you read the agreement, you told
me it was treated just as paperwork. Does that mean you did not read it? A: That’s correct.
Q: Did you have an attorney review it before you signed it? 	A: No.”) (Kenneth Ford, Jr.);
1.App.4134 (“I don’t recall reading [the written agreements].”) (Angell Wesner-Ford);
1.App.6336 (“No, I – as I already stated, I don’t think I read [the written agreement].”) (Rick
Rose); 1.App.8443 (“Q: Have you read this agreement before your deposition today? A: No.”)
(Jeremy Shumate).)
189 The Edwards, Roland, Rose, Ford, Williamson, and Jones Plaintiffs testified that they put
no stock in the written agreements as they were “just paperwork.” 	(Defs.’ 1st App.
1.App.5860 (Q: Did you read this agreement, sir, before you signed it? A: I flipped through
it. Q: You didn’t read it word for word? A: No, sir. Q: Did you have a lawyer review it? A:
No, sir.”), 5862 (“[The written agreements are] just paperwork. It’s legal stuff that had to be
done for us to control the license.”) (Michael Edwards); 1.App.5428 (“Q: Did the – to use your
word, the paperwork, did it have any binding effect, whatsoever, on your business? A: No.”)
(Melissa Edwards); 1.App.2838 (“I don’t know why I would have read [the written
agreements], you know. 	I wasn’t concerned with what they had to say.”) (James Roland);
1.App.6340 (“It’s – this was just – just paperwork that needed to be put in the file to make
everything neat. 	It – it goes back to our agreement with Todd and Leon.”) (Rick Rose);
1.App.4136 (“Q: [W]hat did you understand the purpose of the written agreement to
be? . . . A: The deal was always as it was verbally and as we ran our businesses. Q: . . . [I]f
you rely on the verbal agreement, why didn’t you just do that, instead of signing the license
agreement? 	A: It was just paperwork. 	It was a formality.”) (Angell Wesner-Ford);
1.App.7889–92, 7918 (“I don’t think either party viewed this [written agreement] as anything
other than just paperwork, just a formality.”) (Scott Williamson); 1.App.8739 (“I was told this
was just paperwork that had to be done . . . We had a verbal agreement and this was just the
paperwork that had to be done.”) (Tommy Jones).)
190 While the Ballard Plaintiffs testified they read the written agreements, they have not
offered evidence that they relied on the written agreements or the franchise disclaimer. (See,
e.g., Defs.’ 1st App. 1.App.114, 288, 294 (James Ballard).)
191 The Edwards and Hopkins Plaintiffs testified that the franchise disclaimer did not mean
anything to them at the time the written agreements were signed as they knew nothing about

not read the Licensing Agreements, seek legal advice, or understand what it meant
to be a franchisee, the “facts are so clear that they support only one conclusion”—that
the disclaimer did not factor into any Plaintiff’s decision to join or remain a part of
the Window World system—and no reasonable jury could find in favor of Plaintiffs
concerning 	the 	reliance 	element 	of 	fraud. 	Accordingly, 	the 	Court 	will 	grant
Defendants’ motion for summary judgment as it pertains to Plaintiffs’ fraud claim
based on the Franchise Disclaimer Theory.192 For the same reasons, the Court will
also deny Plaintiffs’ cross-motion for summary judgment as it pertains to this claim.
Ground 5: 2009 Price Increase Theory
99. 	Last, Plaintiffs argue that Window World committed fraud by “secretly
increas[ing] [the] wrongful rebates [Plaintiffs paid Window World] at the expense of
securing best pricing for [Window World] dealers” and “fabricat[ing] the basis of the
resultant price increases to hide what it had done.”193 Plaintiffs allege that the 2009
Price Increases were in contravention of the oral promises made by Leon and Todd
franchise law. 	(Defs.’ 1st App. 1.App.5065 (“I’m not a franchise – I don’t know what [the
franchise laws] are”) (Michael Edwards); 1.App.5568 (“Q: Do you understand that franchising
is a regulated industry in the United States? A: I don’t know anything”) (Melissa Edwards);
1.App.7001–02 (“I didn’t even know what [the franchise disclaimer] meant . . . Q: Did you
take this agreement to an attorney to look at it and explain this franchise concept to you? A:
I did not.”) (Brian Hopkins).)
192 Plaintiffs attempt to save their fraud claim based on the Franchise Disclaimer Theory by
stating “Plaintiffs had no choice but to rely on [Window World’s] representations because
[Window World], the franchisor, had superior knowledge – a key rationale for the Franchise
Rule’s requirement that the franchisor disclose more information than the franchisor may
otherwise do so.” (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 70.) However, Plaintiffs provide no
evidence that they did, in fact, rely on Defendants’ franchise representations in the written
agreements.
193 (Pls.’ Br. Supp. Mot. Partial Summ. J. 59.)

Whitworth 	as 	to 	rebate 	amounts 	and 	“best 	pricing” 	and 	that 	Window 	World
misrepresented that these price increases were out of its control when, in truth,
Window World benefitted the most from the price increases.194
100. 	Even assuming Plaintiffs are able to produce substantial evidence to
support their fraud theory based on the 2009 Price Increases, however, Plaintiffs, as
Defendants correctly state, “don’t even explain what injury purportedly follows from
this theory.”195 To survive a motion for summary judgment, and to establish a prima
facie case for fraud, Plaintiffs must produce substantial evidence demonstrating that
Defendants’ false representation “result[ed] in damage to the injured party.” Tillery
Env’t, LLC, 2018 NCBC LEXIS 13, at *19–20. 	Plaintiffs have failed to meet this
burden.
101. 	As Defendants state in their response brief,
Plaintiffs never explain what they would have done differently had they
known how the price increases on three [window] options
versus AMI. 	By 2009, Plaintiffs were
already dealers. Two years later, [Window World] informed Plaintiffs of
the Franchise Rule violations, gave them an FDD, and offered to let all
of them rescind their contracts and leave the system. 	Not one active
dealer sought rescission. If the outcome is the same with or without the
representation, the representation couldn’t have been relied on and
didn’t impact Plaintiffs’ decisional process. See Bumpers v. Cmty. Bank
of N. Va., 367 N.C. 81, 90 (2013) (“[A]ctual reliance requires that the
plaintiff have affirmatively incorporated the alleged misrepresentation
into 	his 	or 	her 	decision-making 	process: 	if 	it 	were 	not 	for 	the
misrepresentation, the plaintiff would likely have avoided the injury
altogether.”).196
194 (Pls.’ Br. Supp. Mot. Partial Summ. J. 59–60.)
195 (Defs.’ Resp. Pls.’ Mot. Summ. J. 75–76.)
196 (Defs.’ Resp. Pls.’ Mot. Summ. J. 76.)

102. 	Based on the above, the Court finds that Plaintiffs have failed to establish a
necessary element of their claim for fraud arising out of the 2009 Price Increases.
Accordingly, the Court grants this portion of Defendants’ Motion and will dismiss
Plaintiffs’ fraud claim based on the 2009 Price Increases.197
B. Negligent Misrepresentation
103. 	Plaintiffs and Defendants each seek summary judgment on Plaintiffs’ claim
for negligent misrepresentation. 	In their Third Amended Complaints, Plaintiffs
allege that: (1) Window World “owed a duty of reasonable care to Plaintiffs in
providing information relating to Plaintiff’s franchise relationship with [Window
World], including, without limitation, by virtue of the duties and obligations placed
upon [Window World] pursuant to the Franchise Disclosure Rule”; (2) Window World
“breached its duty of reasonable care to Plaintiffs by providing false information
concerning Plaintiff’s franchise relationship with [Window World]”; (3) “Plaintiffs
justifiably and actually relied to their detriment upon information prepared without
reasonable care by [Window World]”; and (4) “[a]s a consequence and proximate result
of [Window World’s] negligent misrepresentations, Plaintiffs have been damaged.”198
104. 	Defendants 	seek 	summary 	judgment 	on 	Plaintiffs’ 	negligent
misrepresentation claim, contending that the “only misrepresentation alleged in the
complaint for this claim is the failure to provide information under the Franchise
197 For the same reason, the Court will also deny Plaintiffs’ cross-motion for summary
judgment as it pertains to this aspect of Plaintiffs’ fraud claims.
198 (15-CVS-1 Third Am. Compl. ¶¶ 271–74; 15-CVS-2 Third Am. Compl. ¶¶ 375–78.)

Rule,” and “[a] claim for negligent misrepresentation cannot be based upon a
concealment or failure to disclose.”199 The Court agrees.
105. 	As this Court has previously explained, “unlike fraud claims, a claim for
negligent misrepresentation must be based on an actual misrepresentation, not
merely an omission or failure to disclose information.” B&D Software Holdings, LLC
v. Infobelt, Inc., 2024 NCBC LEXIS 103, at *35 (N.C. Super. Ct. Aug. 1, 2024); see,
e.g., Aldridge v. Metro. Life Ins. Co., 2019 NCBC LEXIS 116, at *112–13 (N.C. Super.
Ct. Dec. 31, 2019) (“[A] claim for negligent misrepresentation can only be based on
affirmative misrepresentations, not on omissions.”).
106. 	Plaintiffs base their claim for negligent misrepresentation on Window
World’s failure to provide information it was required to disclose pursuant to the
Franchise Rule. Plaintiffs allege that Window World “owed a duty of reasonable care
to Plaintiffs in providing information relating to Plaintiffs’ franchise relationship,
including . . . by virtue of the duties and obligations placed upon [Window World]
pursuant to the Franchise Disclosure Rule.”200 In other words, Window World owed
Plaintiffs a duty to disclose particular information by virtue of their relationship.
107. 	Plaintiffs further allege that Window World breached this duty to disclose
by “providing false information concerning Plaintiffs’ franchise relationship with
[Window World].”201 	Plaintiffs do not clarify in this cause of action, however, what
199 (Defs.’ Br. Supp. Mot. Summ. J. 60.)
200 (15-CVS-1 Third Am. Compl. ¶ 271; 15-CVS-2 Third Am. Compl. ¶ 375.)
201 (15-CVS-1 Third Am. Compl. ¶ 272; 15-CVS-2 Third Am. Compl. ¶ 376.)

false information Defendants allegedly provided to Plaintiffs, or what information
Defendants are alleged to have affirmatively misrepresented, and the only evidence
Plaintiffs offer is predicated on Window World’s alleged failure to disclose information
it otherwise had a duty to disclose.
108. 	Accordingly, since Plaintiffs’ claim for negligent misrepresentation is based
upon a failure to disclose information and not on an affirmative misrepresentation,
the Court shall grant Window World’s Motion, dismissing Plaintiffs’ claim for
negligent misrepresentation against all Plaintiffs. 	See, e.g., Harrold v. Dowd, 149
N.C. App. 777, 783 (2002); Aldridge, 2019 NCBC LEXIS 116, at *112–13; B&D
Software Holdings, LLC, 2024 NCBC LEXIS 103, at *35.
109. 	Plaintiffs attempt to preserve their claim for negligent misrepresentation by
arguing in their response to Defendants’ Motion that:
[Window World] incorrectly states that the “only misrepresentation
alleged 	in 	the 	complaint 	for 	this 	claim 	is 	the 	failure 	to 	provide
information under the Franchise Rule.” . . . On the contrary, Plaintiffs
assert 	claims 	for 	negligent 	misrepresentation 	based 	on 	the 	many
misrepresentations 	[Window 	World] 	made 	to 	Plaintiffs 	about 	the
parties’ relationships.202
110. 	In their brief in support of their motion for summary judgment, Plaintiffs
also assert that the same five theories pleaded in their fraud claim serve as the basis
for their negligent misrepresentation claim, contending:
[a]s set out above, [Window World] made numerous misrepresentations
to Plaintiffs, on which Plaintiffs relied, and made them with fraudulent
intent. 	Those same misrepresentations establish [Window World’s]
liability for negligent misrepresentation regardless of [Window World’s]
intent. 	Accordingly, Plaintiffs are entitled to summary judgment for
202 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 63.)

negligent misrepresentation with respect to each misrepresentation
identified above.203
111. 	Defendants correctly point out in response, however, that these theories of
negligent representation “aren’t mentioned in the complaint or in the relevant part
of Plaintiffs’ brief.”204 	Defendants further contend, and the Court agrees, that, “[i]f
this tort were based on some misrepresentation theory besides what was pleaded,
[Window World] was entitled to notice of that theory years ago. Summary-judgment
briefing can’t amend a complaint.”205
112. 	The Supreme Court of North Carolina has also made clear that Rule 9(b)
applies to claims for negligent misrepresentation just as it does to claims based on
fraud. See Value Health Sols., Inc. v. Pharm. Rsch. Assocs., 385 N.C. 250, 265 (2023)
(“We hold that, in North Carolina, claims for negligent misrepresentation must
satisfy the heightened pleading standard of North Carolina Rules of Civil Procedure
Rule 9(b).”). As the Court explained:
As in a fraud case, we require the plaintiff to identify this alleged
negligent misrepresentation with particularity so that the defendant
can understand the time, place, and content of the representation, the
identity of the person making the representation, and how the plaintiff
justifiably relied on that information. 	Cf. Terry, 302 N.C. at 85. 	As a
federal court succinctly explained when applying Rule 9(b) to negligent
misrepresentation 	claims, 	“[u]nless 	defendant 	and 	others 	share
plaintiff’s view of the situation, they will find it difficult to grasp
plaintiff’s claim.” Breeden, 171 F.R.D. at 202.
Id. at 266.
203 (Pls.’ Br. Supp. Mot. Partial Summ. J. 84.)
204 (Defs.’ Reply Br. Supp. Mot. Summ. J. 32.)
205 (Defs.’ Reply Br. Supp. Mot. Summ. J. 32.)

113. 	Plaintiffs’ failure to assert their new affirmative misrepresentation theory
in any of their three complaints—and to fail to do so in accordance with Rule 9(b)’s
heightened 	pleading 	standard—requires 	dismissal 	of 	their 	negligent
misrepresentation claim to the extent it is based on this new theory. See, e.g., B&D
Software Holdings, LLC, 2024 NCBC LEXIS 103, at *16 (noting that “it is axiomatic
that a defendant must be put on notice of what it is defending against in order to
avoid being ambushed”) and *17–18 (further observing that “a claimant’s initial
pleading must adequately inform the responding party of what it is alleged to have
done wrong so that it can defend itself accordingly. This principle is undermined in
cases where, as here, a party seeks to assert a new theory of recovery for the first
time at the summary judgment stage.”); Bradshaw v. Maiden, 2020 NCBC LEXIS
106 (N.C. Super. Ct. Sep. 15, 2020) (holding an amended complaint did not assert a
separate negligence claim against a hedge fund administrator as it pled facts only in
support of a gross negligence claim), aff’d, 2022 N.C. App. LEXIS 950 (N.C. Ct. App.
Dec. 29, 2022); aff’d per curiam, 385 N.C. 642 (2024).
114. 	Accordingly, 	for 	the 	reasons 	set 	forth 	above, 	Plaintiffs’ 	negligent
misrepresentation claim, which the Court concludes is pleaded only based on a failure
to disclose, must be dismissed. 	The Court will therefore grant Defendants’ Motion
and deny Plaintiffs’ Motion as to this claim.
C. Declaratory Judgment
115. 	Defendants next move for summary judgment on Plaintiffs’ claims for
declaratory judgment (First and Second Causes of Action in the Baton Rouge

Action/Third and Fourth Causes of Action in the St. Louis Action). 	Plaintiffs also
move for summary judgment on their First Cause of Action in the Baton Rouge Action
and their Third Cause of Action in the St. Louis Action “to the extent the cause of
action is premised on fraudulent inducement.”206
116. 	Under the 	Declaratory 	Judgment 	Act, 	“[a]ny 	person 	interested under
a . . . written contract . . . , or whose rights, status or other legal relations are affected
by a . . . contract . . . , may have determined any question of construction or validity
arising under the . . . contract . . . , and obtain a declaration of rights, status, or other
legal relations thereunder.” N.C.G.S. § 1-254. When asserting a claim for declaratory
judgment, the claimant “must set forth in his pleading all facts necessary to disclose
the existence of an actual controversy between the parties . . . with regard to their
respective rights and duties.” 	Lide v. Mears, 231 N.C. 111, 118 (1949). 	Summary
judgment is appropriate in a declaratory judgment action where there is no genuine
issue of material fact and a party is entitled to judgment as a matter of law. Early v.
Brown, 116 N.C. App. 206, 208 (1994).
First Declaratory Judgment Claim
117. 	In 	their 	Third 	Amended 	Complaints, 	Plaintiffs 	allege 	two 	claims 	for
declaratory judgment, which the Court will address in turn. 	In the first, Plaintiffs
“seek 	a 	declaratory 	judgment 	that 	any 	and 	all 	prior 	written 	‘Licensing
Agreements’ . . . executed by [Window World] and any Plaintiff, are null, invalid, and
206 (Pls.’ Mot. 3.)

unenforceable against Plaintiffs.”207 Specifically, Plaintiffs allege that the executed
written agreements are null, invalid, and unenforceable because:
(1) “the cause and/or object of the agreement, as intended by [Window World], was
illegal” (the “Illegality Theory”);208
(2) “enforcement of such agreements against Plaintiffs would be against public
policy . . . [as] expressed in the Franchise Disclosure Rule’s requirements
applicable to franchisors” (the “Public Policy Theory”);209
(3) “the prior agreements are null, invalid, and unenforceable because they were
induced by [Window World’s] fraud” (the “Fraudulent Inducement Theory”);210
and
(4) “the putative obligations in the prior agreements are not enforceable against
Plaintiffs 	because 	they 	arise 	from 	adhesionary 	contracts” 	(the
“Unconscionability Theory”).211
Illegality and Public Policy Theories
118. 	Plaintiffs first allege that the Licensing Agreements Plaintiffs signed are
void because Window World “intentionally created franchise relationships with
franchisees such as Plaintiffs and, simultaneously, in bad faith, took affirmative steps
207 (15-CVS-1 Third Am. Compl. ¶ 223; 15-CVS-2 Third Am. Compl. ¶ 322.)
208 (15-CVS-1 Third Am. Compl. ¶ 224; 15-CVS-2 Third Am. Compl. ¶ 323.)
209 (15-CVS-1 Third Am. Compl. ¶ 226; 15-CVS-2 Third Am. Compl. ¶ 325.)
210 (15-CVS-1 Third Am. Compl. ¶ 227; 15-CVS-2 Third Am. Compl. ¶ 326.)
211 (15-CVS-1 Third Am. Compl. ¶ 231; 15-CVS-2 Third Am. Compl. ¶ 330.)

to hide from those franchisees that [Window World] owed to them a battery of
required disclosures under federal law.”212 	Plaintiffs allege that “[t]he licensing
agreements themselves, the way [Window World] presented them, and the fraudulent
franchise-law disclaimer they contained formed a key part of [Window World’s] illegal
scheme to cover up its misconduct and hide its fraud.”213 Window World’s “egregious
conduct,” Plaintiffs contend, is “incompatible with the Franchise Rule’s purpose of
preventing 	misrepresentation 	and 	nondisclosures 	[by 	franchisors]”214 	and
“enforcement of such agreements against Plaintiffs would be against [this] public
policy.”215
119. 	Defendants contend in response that “[a] contract is not illegal just because
a 	Franchise-Rule 	violation 	occurred 	before 	its 	execution.”216 	Furthermore,
Defendants argue, “Plaintiffs do not satisfy North Carolina’s standards for illegality
[because a] contract is illegal only if its performance requires an illegal action.”217
120. 	Under North Carolina law, “[t]he general rule is that an agreement which
violates a constitutional statute or municipal ordinance is illegal and void.” Marriott
Fin. Servs., Inc. v. Capitol Funds, Inc., 288 N.C. 122, 128 (1975). Additionally, “where
212 (15-CVS-1 Third Am. Compl. ¶ 225; 15-CVS-2 Third Am. Compl. ¶ 324; see also Pls.’ Br.
Opp’n Defs.’ Mot. Summ. J. 16.)
213 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 167.)
214 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 17.)
215 (15-CVS-1 Third Am. Compl. ¶ 226; 15-CVS-2 Third Am. Compl. ¶ 325.)
216 (Defs.’ Br. Supp. Mot. Summ. J. 23.)
217 (Defs.’ Br. Supp. Mot. Summ. J. 25 (citing Mid-Am. Apartments, L.P. v. Block at Church
St. Owners Ass’n, Inc., 257 N.C. App. 83, 84 (2017)).)

certain acts are expressly made illegal, contracts based on such acts are void.” 	Id.
However, “there is . . . ample authority that the statutory imposition of a penalty,
without more, will not invariably avoid a contract which contravenes a statute or
ordinance when the agreement or contract is not immoral or criminal in itself.” 	Id.
Indeed, “courts will not extend the terms of a penal statute to avoid a contract unless
such a result was within the intent of the legislature in enacting the statute.” Furr
v. Fonville Morisey, 130 N.C. App. 541, 545 (1998); see also Electrova Co. v. Spring
Garden Ins. Co., 156 N.C. 232, 235 (1911) (“Where the contract or agreement sought
to be enforced has no direct connection with the illegal act, but is collateral to it, then
the contract is not tainted or affected by the illegal act.”).
121. 	The 	relevant 	inquiry 	regarding 	Plaintiffs’ 	first 	claim 	for 	declaratory
judgment is whether the Franchise Rule makes certain acts illegal or whether the
Franchise Rule merely imposes a penalty. If the former, a contract in violation of the
Franchise Rule is void for illegality, while if the latter, a contract is not necessarily
void. 	This 	question 	necessarily 	implicates 	the 	intent 	of 	the 	Federal 	Trade
Commission (the “FTC”), and Congress more broadly, in enacting the Franchise Rule.
See Marriott Fin. Servs., Inc., 288 N.C. at 129.
122. 	The Franchise Rule is a federal regulation, enforced by the FTC, that
requires a franchisor to provide disclosures to a prospective franchisee containing
information 	about 	the 	franchisor, 	the 	franchise 	being 	offered, 	how 	much 	the

franchised business may potentially earn, and other information about the franchise
system.218 In relevant part, the Franchise Rule states that:
[I]t is an unfair or deceptive act or practice in violation of Section 5 of
the Federal Trade Commission Act: (a) For any franchisor to fail to
furnish a prospective franchisee with a copy of the franchisor’s current
disclosure document . . . at least 14 calendar-days before the prospective
franchisee signs a binding agreement[.]
16 C.F.R. § 436.2.
123. 	Section Five of the Federal Trade Commission Act (the “FTCA”) in turn sets
forth 	the 	procedure 	by 	which 	the 	FTC 	may 	enforce 	violations 	of 	the 	FTCA.
Importantly, courts have repeatedly held that private parties are not permitted to
enforce section 5 of the FTCA—only the FTC may do so. See, e.g., Halloway v. Bristol-
Myers Corp., 485 F.2d 986, 987 (D.C. Cir. 1973); Klein Sleep Prods. v. Hillside
Bedding Co., No. 83-4014, 1983 U.S. Dist. LEXIS 19179 (S.D.N.Y. Feb. 17, 1983);
Vino 100, LLC v. Smoke on the Water, LLC, 864 F. Supp. 2d 269, 281 (E.D. Pa. 2012).
124. 	This Court, like many courts before it, finds that permitting a franchisee to
use a franchisor’s alleged noncompliance with the Franchise Rule as a basis for
invalidating a franchise contract would be inconsistent with the intent of the FTC
and Congress. See, e.g., Palermo Gelato, LLC v. Pino Gelato, Inc., No. 12-CV-00931,
2013 U.S. Dist. LEXIS 9931, at *26 (W.D. Pa. Jan. 24, 2013) (“It appears that every
court that has confronted the issue has determined, with persuasive reasoning, that
a violation of the disclosure requirements of the Franchise Rule does not provide the
basis to render a subsequent agreement void as illegal or contrary to public policy.”).
218 See generally 16 C.F.R. §§ 436.1–.11.

To permit a franchisee to do so would essentially allow a plaintiff to circumvent the
bar on private actions to enforce the FTCA and create a private right of action under
section 5.
125. 	Furthermore, 	as 	Defendants 	state 	in 	their 	briefing, 	the 	Licensing
Agreements themselves do not violate the Franchise Rule or FTCA, nor do the
Licensing Agreements themselves require the performance of an illegal action. The
conduct prohibited by the Franchise Rule is the failure to provide required disclosures
prior to the signing of franchise agreements. 	A franchisor’s failure to disclose is a
matter for the FTC to enforce and does not impact the terms of the agreement
between the franchisor and its franchisees. 	See Hines v. Norcott, 176 N.C. 123, 125
(1918) (stating that a town ordinance that rendered a lease illegal did not invalidate
the lease itself because the statute concerned a “question between [the lessor] and
the town authorities”). For these reasons, therefore, the Court declines to hold that
the Licensing Agreements are void for illegality and will grant Defendants’ Motion
dismissing Plaintiffs’ first declaratory judgment claim seeking a declaration to this
effect.
126. 	Nor can the Court conclude that the fact that a franchisor violated the
Franchise Rule in procuring a franchise agreement necessarily determines that the
franchise agreement is void as against public policy. To the contrary, as our Supreme
Court has explained:
The reason that some contracts and agreements are declared void as
against public policy is because the enforcement of them by the courts
would have a direct tendency to injure the public good. The law does not
consider the advantage or interests of either party to the contract, but

acts only from considerations of the public good . . . [A] court should
declare a contract void as against public policy only when the case is
clear and free from doubt and the injury to the public is substantial and
not theoretical or problematical.
Electrova Co., 156 N.C. at 235.
127. 	It does not appear that any injury—much less substantial injury—to the
public will result from enforcing the Licensing Agreements in the circumstances here.
Accordingly, 	the 	Court 	will 	also 	grant 	Defendants’ 	Motion 	seeking 	summary
judgment on Plaintiffs’ first declaratory judgment claim to the extent it seeks a
determination that the Licensing Agreements are void as against public policy.
Unconscionability Theory
128. 	Plaintiffs 	next 	argue 	that, 	“[i]n 	the 	further 	alternative, 	the 	putative
obligations in the prior agreements are not enforceable against Plaintiffs because
they arise from adhesionary contracts.”219
129. 	Under North Carolina law, in certain cases, contracts of adhesion can be
struck down if they are unconscionable. Sears Roebuck & Co. v. Avery, 163 N.C. App.
207, 216 (2004) 	(“Contracts 	of 	adhesion 	will not be 	enforced unless 	they are
conscionable 	and 	within 	the 	reasonable 	expectations 	of 	the 	parties.”). 	An
unconscionable contract of adhesion is marked by its standard form, unchangeable
terms, and lack of a realistic opportunity to bargain. 	See, e.g., Tillman v. Comm.
Credit Loans, Inc., 362 N.C. 93, 102 (2008) (“An inquiry into unconscionability
requires that a court consider all the facts and circumstances of a particular case, and
219 (15-CVS-1 Third Am. Compl. ¶ 231; 15-CVS-2 Third Am. Compl. ¶ 330.)

if the provisions are then viewed as so one-sided that the contracting party is denied
any 	opportunity 	for 	a 	meaningful 	choice, 	the 	contract 	should 	be 	found
unconscionable.” (cleaned up)).
130. 	To establish unconscionability under North Carolina law, Plaintiffs must
show both procedural unconscionability and substantive unconscionability. Wilner v.
Cedars 	of 	Chapel 	Hill, 	LLC, 	241 	N.C. 	App. 	389, 	392 	(2015). 	“Procedural
unconscionability involves ‘bargaining naughtiness’ in the formation of the contract,
such 	as 	‘fraud, 	coercion, 	undue 	influence, 	misrepresentation, 	[or] 	inadequate
disclosure.’ ” Weaver v. Saint Joseph of the Pines, Inc., 187 N.C. App. 198, 212 (2007)
(quoting Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C. App. 14, 20 (1992)).
“Substantive unconscionability involves an ‘inequality of the bargain’ that is ‘so
manifest as to shock the judgment of a person of common sense, and . . . the
terms . . . so oppressive that no reasonable person would make them on the one hand,
and no honest and fair person would accept them on the other.” Id. (quoting Brenner
v. Little Red Sch. House, Ltd., 302 N.C. 207, 213 (1981)). 	“The courts of this State
will only set aside contractual agreements based upon unconscionability in a very
rare case.” Westmoreland v. High Point Healthcare Inc., 218 N.C. App. 76, 91 (2012).
131. 	Plaintiffs 	contend 	that 	the 	Licensing 	Agreements 	they 	entered 	are
unconscionable in both process and substance and are thus invalid.220 	They argue
that the circumstances here “demonstrate unfairness, lack of meaningful choice, and
220 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 15.)

unequal bargaining power.”221 	Specifically, Plaintiffs allege that the Licensing
Agreements are procedurally unconscionable because Window World “presented
increasingly more onerous agreements for execution long after Plaintiffs had begun
operations and made extraordinary investments in their businesses and the Window
World brand, all while assuring Plaintiffs that the new forms were ‘just paperwork,’
didn’t apply to Plaintiffs, and wouldn’t change the terms of the relationship.”222
Plaintiffs further contend that Window World did so “knowing that it presented the
licensing agreements without making disclosures required by franchise law and while
withholding 	material 	facts 	under 	the 	common 	law,” 	thus 	effectively 	denying
“Plaintiffs information necessary to make an informed decision how to proceed.”223
132. 	Plaintiffs assert that the Licensing Agreements are also substantively
unconscionable because of “the harshness and one-sidedness of the terms [Window
World] now seeks to enforce . . . [such as] the right to take Plaintiffs’ businesses,
without compensation and for no reason, on 90 days’ notice; to not renew Plaintiffs’
license (and thereby take their businesses) for any reason or no reason; to raise the
royalties Plaintiffs pay to any amount it chooses; and to repudiate [Window World’s]
‘main pitch’ that it would secure best pricing for Plaintiffs.”224
221 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 15.)
222 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 15.)
223 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 15.)
224 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 15–16.)

133. 	Defendants counter that the procedural circumstances surrounding the
Licensing Agreements’ formation were fair—contending that “Plaintiffs were given
the licensing agreements to read before signing”225 and that “Plaintiffs could and did
negotiate 	changes 	to 	their 	licensing 	agreements.”226 	Additionally, 	Defendants
contend that “the mere fact that a contract ‘actually may be unreasonable’ or ‘may
lead to hardship on one side’ does not render it substantively unconscionable.”227
Defendants assert that parties “should be entitled to contract on their own terms
without the indulgence of paternalism by courts in the alleviation of one side or
another from the effects of a bad bargain.”228 	Even if this were not the case,
Defendants argue, “the agreements aren’t actually one-sided” and “the termination
clauses weren’t unconscionable either.”229
134. 	As an initial matter, the Court finds that a genuine dispute of fact exists
regarding whether there was procedural unconscionability in the formation of the
Licensing Agreements. 	In their depositions, many Plaintiffs testified that, because
they had already invested substantially in their Window World stores, declining to
sign the written agreements and withdrawing from the Window World system was
225 (Defs.’ Reply Br. Supp. Mot. Summ. J. 14.)
226 (Defs.’ Br. Supp. Mot. Summ. J. 26.)
227 (Defs.’ Reply Br. Supp. Mot. Summ. J. 15.)
228 (Defs.’ Reply Br. Supp. Mot. Summ. J. 15 (quoting Westmoreland, 218 N.C. App. at 90).)
229 (Defs.’ Reply Br. Supp. Mot. Summ. J. 15.)

not a feasible option at the time Window World presented the Licensing or Franchise
Agreements for signature.230
135. 	That said, the record also shows, as Defendants contend, that “Plaintiffs
could and did negotiate changes to their licensing agreements.”231 For example, the
Roland Plaintiffs added a carve-out to their non-compete allowing them to continue
selling a competing window product in a separate business that they owned.232
Similarly, the Edwards, Ford, and Jones Plaintiffs made changes to their written
agreements 	by 	negotiating 	for 	expanded 	exclusive 	trade 	areas.233 	The 	Court
230 (See, e.g., Defs.’ 1st App. 1.App.6966–67 (“A: I’ll start with generally I was very surprised
with the agreement that ended up on my desk and with how late it was in arriving to me and
how far into debt I was at the time when I did receive it . . . Q: So you said you were into debt
at the time that you received it? A: Significant. Q: And what was that all about? A: Starting
the business.”), 6988 (“As I had stated before, generally with this agreement I expressed my
dissatisfaction to Scott Williamson. 	I expressed concern to Sean Gallagher [of Window
World], and I felt I had no choice but to sign this. I had – win, lose or draw, I was going to be
financially ruined if I did anything other than sign this document.”), 7022 (“I could have shut
the doors and incurred huge losses, declared bankruptcy, lost my house, been on the street.
I could have done that. 	I don’t think that that’s a reasonable option.”) (Brian Hopkins);
1.App.7316–18 (“I had millions and millions of dollars wrapped up in – in two stores. I had
one store that was in some financial trouble. And I needed to sell the other store to get myself
back on track. It would have been – it would have been the death of two stores. And it would
have destroyed everything I had worked for. So it was not an option to walk away [and not
sign the 2013 Franchise Agreement].) (Scott Williamson); 1.App.5918 (“I was under duress
because they – I had to sign [the 2013 Franchise Agreement for Central Alabama] to do
anything. I done – I mean, this was signed in ’13. We took over July of 2012. That’s almost
a year, eight months, ten months, something like that that we were working. We were so far
in it, we had to sign it.”) (Michael Edwards).)
231 (Defs.’ Br. Supp. Mot. Summ. J. 26.)
232 (Defs.’ 1st App. 1.App.3552 (James Roland); Defs.’ 2d App. 2.App.16441 (Window World of
Baton Rouge – January 2002 Licensing Agreement).)
233 (Compare Defs.’ 2d App. 2.App.16729 & 16759, with 2.App.16749 & 16773 (Edwards
Plaintiffs’ Licensing Agreements); Defs.’ 1st App. 1.App.4482 (“Q: Who made the request to
make the changes in the written contract? In other words, to make sure those counties were
included and to put in the right corporate name. 	Was it you? 	A: My wife and I, yes.”)

concludes 	that 	these 	competing 	proofs 	concerning 	procedural 	unconscionability
cannot be resolved on summary judgment and must be resolved by a jury.
136. 	The Court similarly concludes that the record presents genuine issues of
material 	fact 	regarding 	whether 	the 	executed 	Licensing 	Agreements 	are
substantively unconscionable. 	In their briefing, Plaintiffs point to provisions in the
written agreements that grant Window World the right to “take Plaintiffs’ businesses,
without compensation and for no reason, on 90 days’ notice; to not renew Plaintiffs’
license[s] (and thereby take their businesses) for any reason or no reason; to raise the
royalties Plaintiffs pay to any amount [Window World] chooses; and to repudiate
[Window World’s] ‘main pitch’ that it would secure best pricing for Plaintiffs.”234 	A
(Kenneth Ford, Jr.); 1.App.8161 (“Q: In fact, you knew how to go to Window World and ask
for something that you thought was important to Lexington for it to be included in the
agreement, correct? A: I knew how to go to Window World, yes. I knew how to make a phone
call. 	Q: Right. 	And you knew that you could approach Window World about including
something that you wanted to have in the agreement, correct? 	A: Yes. 	Q: And one of the
examples of that is when the 2002 agreement was changed to expand the territory to reflect
the actual agreement that you had with the five counties added, correct? A: Yes.”) (Tommy
Jones).)
234 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 15–16; see, e.g., Defs.’ 2d App. 2.App.16428–30 (¶ 12.
Default: The occurrence of any one or more of the following events shall constitute an event
of default and grounds for termination of this Licensing Agreement by LICENSOR: (p) Upon
ninety (90) days written notice to LICENSEE of LICENSOR’S intent to terminate this
Licensing Agreement.) (Window World of Phoenix, AZ – May 2006 Licensing Agreement);
2.App.16936–38 (¶ 14. Default: (a) The occurrence of any one or more of the following events
shall constitute an event of default and grounds for immediate termination of this Franchise
Agreement by FRANCHISOR: (i) Notwithstanding any event of default, FRANCHISEE shall
conduct its business and deal with customers in an ethical and moral manner so as to always
promote the fine business reputation of FRANCHISOR, the Franchise System and to protect
the Trademarks. FRANCHISEE shall not engage in any activity(ies) that may in any way
whatsoever lessen, harm, impugn, or adversely affect the FRANCHISOR’S reputation and
the 	Trademarks. 	In 	the 	event 	FRANCHISEE 	fails 	to 	comply 	with 	this 	provision
FRANCHISOR may, in its sole discretion, terminate the Franchise Agreement upon ninety
(90) days written notice to the FRANCHISEE.) (Window World of Central Alabama – June
2013 Franchise Agreement); 2.App.16933 (¶ 7. Approved Sources . . . While FRANCHISOR

reasonable jury could find provisions such as these to be “harsh, oppressive, and ‘one-
sided’.” 	See, e.g., Rite Color Chemical Co., 105 N.C. App. at 20. 	However, as our
courts have made clear, the bar for substantive unconscionability is high. 	“The
inequality of the bargain . . . must be ‘so manifest as to shock the judgment of a
person of common sense, and . . . the terms . . . so oppressive that no reasonable
person would make them on the one hand, and no honest and fair person would accept
them on the other.’ ” King v. King, N.C. App. 454, 458 (1994) (quoting Brenner, 302
N.C. at 213). Whether Plaintiffs meet this high burden similarly cannot be resolved
on summary judgment and instead must be resolved by a jury. 	Accordingly,
Defendants’ Motion for summary judgment on Plaintiffs’ first declaratory judgment
claim 	seeking 	a 	declaration 	that 	the 	Licensing 	Agreements 	are 	void 	for
unconscionability shall be denied.
Fraudulent Inducement Theory
137. 	Plaintiffs 	also 	argue 	that 	“any 	and 	all 	prior 	written 	‘Licensing
Agreements’ . . . executed by [Window World] and any Plaintiff, are null, invalid, and
unenforceable against Plaintiffs” because “they were induced by [Window World’s]
fraud.”235 Plaintiffs allege that Window World “made affirmative misrepresentations
and material omissions to Plaintiffs with the specific intention of inducing Plaintiffs
to enter into franchise relationships with [Window World], to execute ‘Licensing
will attempt to negotiate prices for the benefit of FRANCHISEE, FRANCHISOR has no
obligation to do so.) (Window World of Central Alabama – June 2013 Franchise Agreement).)
235 (15-CVS-1 Third Am. Compl. ¶ 227; 15-CVS-2 Third Am. Compl. ¶ 326.)

Agreements,’ and/or to execute renewal ‘Licensing Agreements.’ ”236 	Specifically,
Plaintiffs assert that Window World’s “failure to make the federally mandated
franchise disclosures constituted material omissions that fraudulently induced those
parties to enter into the prior ‘Licensing Agreements’ with [Window World].”237
138. 	Defendants 	contend 	in 	response 	that 	Plaintiffs’ 	allegations 	regarding
fraudulent inducement “do not attack the written licensing agreements at all – they
target the alleged oral statements that predated the licensing agreements,” and
“Plaintiffs point to no authority suggesting that a fully integrated contract should be
set aside in favor of enforcing earlier, fraudulent oral statements.”238
139. 	As discussed above, however, this Court finds that genuine issues of
material fact exist regarding whether Plaintiffs were fraudulently induced to contract
with 	Window 	World 	by 	Window 	World’s 	alleged 	rebate 	and 	best 	pricing
misrepresentations and, relatedly, by Window World’s alleged fraudulent omissions
concerning the nature of the parties’ relationship. Accordingly, the Court denies the
parties’ 	Cross-Motions 	to 	the 	extent 	they 	pertain 	to 	Plaintiffs’ 	Fraudulent
Inducement Theory as well as Defendants’ Motion to the extent it pertains to
Plaintiffs’ Unconscionability Theory under the first claim for declaratory judgment.
As noted above, however, the Court will grant Defendants’ Motion to the extent it
seeks summary judgment dismissing Plaintiffs’ first declaratory judgment claim
236 (15-CVS-1 Third Am. Compl. ¶ 228; 15-CVS-2 Third Am. Compl. ¶ 327.)
237 (15-CVS-1 Third Am. Compl. ¶ 229; 15-CVS-2 Third Am. Compl. ¶ 328.)
238 (Defs.’ Reply Br. Supp. Mot. Summ. J. 13.)

seeking a declaration that the Licensing Agreements are void based on Plaintiffs’
Illegality and Public Policy Theories.
Second Declaratory Judgment Claim
140. 	In their second claim for declaratory judgment (Plaintiff’s Second Cause of
Action in the Baton Rouge Action or Fourth Cause of Action in the St. Louis Action),
Plaintiffs contend that they are “entitled to a judgment declaring they have the right
to continue to operate on the same terms established by the parties’ course of dealings
that existed independent of any prior written ‘Licensing Agreements’ or ‘Franchise
Agreements[.]’ ”239 	Defendants argue in opposition that, for the various reasons
outlined earlier in this opinion, the “licensing agreements are the parties’ ‘true’
agreements”240 and therefore that Plaintiffs’ claim should be dismissed. Since, as set
forth above, the Court finds that genuine issues of material fact exist at least
regarding whether the written agreements are “null, invalid, and unenforceable
because they were induced by [Window World’s] fraud,”241 the Court will deny
Defendants’ Motion for summary judgment on this claim.
D. Reformation and Injunction
141. 	Defendants next move for summary judgment on Plaintiffs’ claim for
reformation and injunction (Third Cause of Action in the Baton Rouge Action and
Fifth Cause of Action in the St. Louis Action). 	In the Third Amended Complaints,
239 (15-CVS-1 Third Am. Compl. ¶ 237; 15-CVS-2 Third Am. Compl. ¶ 339.)
240 (Defs.’ Reply Br. Supp. Mot. Summ. J. 18.)
241 (15-CVS-1 Third Am. Compl. ¶ 227; 15-CVS-2 Third Am. Compl. ¶ 326.)

Plaintiffs allege that “[a]ll Plaintiffs are entitled to a judgment reforming the prior
‘Licensing Agreements’ and ‘Franchise Agreements’ executed by Plaintiffs to reflect
the actual meeting of the minds between the parties as reflected in the parties’ course
of dealings[.]”242 Additionally, Plaintiffs allege that they are entitled to an injunction:
(1) “ordering [Window World] to cease and desist from any and all unlawful
attempts to seize Plaintiffs’ franchise rights”;243
(2) “prohibiting [Window World] from terminating, failing to renew, or otherwise
attempting 	to 	appropriate 	the 	businesses 	of 	Plaintiffs 	in 	any 	manner
inconsistent with the parties’ agreement as reformed and as reflected in the
parties’ course of dealings”;244
(3) prohibiting Window World from “interfering with Plaintiffs’ use of the Window
World 	trademarks, 	Plaintiffs’ 	use 	of 	the 	1-800-Next-Window 	telephone
number . . ., Plaintiffs’ use of the www.window world.com website . . ., or
Plaintiffs’ use of websites with domain names containing Window World
trademarks”;245 and
242 (15-CVS-1 Third Am. Compl. ¶¶ 239–40; 15-CVS-2 Third Am. Compl. ¶ 341.)
243 (15-CVS-1 Third Am. Compl. ¶ 241; 15-CVS-2 Third Am. Compl. ¶ 345.)
244 (15-CVS-1 Third Am. Compl. ¶ 242; 15-CVS-2 Third Am. Compl. ¶ 346.)
245 (15-CVS-1 Third Am. Compl. ¶ 242; 15-CVS-2 Third Am. Compl. ¶ 346.)

(4) “ordering [Window World] to cease and desist from any and all unlawful
attempts to recruit and/or ‘steal’ their employees, for the purposes of opening
Window World franchises.”246
Plaintiffs allege that, if the injunctive relief sought by Plaintiffs is not granted,
Window World “will be unjustly enriched at their expense.”247
142. 	Defendants argue, however, that the written agreements are enforceable as
a matter of law, the written agreements control the parties’ relationship, and that
Defendants are entitled to summary judgment on Plaintiffs’ claim for reformation
and injunction because: (1) “Plaintiffs ratified their licensing agreements”; (2)
“Plaintiffs waited too long to rescind”; (3) “Plaintiffs have not offered restitution”; (4)
the “licensing agreements are not illegal and do not violate public policy”; (5) the
“licensing agreements are not void as ‘contracts of adhesion’ ”; (6) “Plaintiffs were not
fraudulently induced into signing their licensing agreements”; (7) the “[p]arol-
evidence rule bars reference to prior oral statements”; (8) there is a “presumption
against contracts lasting indefinitely”; and (9) “[t]he parties ‘course of dealing’ didn’t
change.”248
143. 	In North Carolina, “[i]t is well established that courts have equitable power
to grant reformation of a contract when the writing does not represent the true
agreement of the parties, including situations in which the writing omits stipulated
246 (15-CVS-1 Third Am. Compl. ¶ 243; 15-CVS-2 Third Am. Compl. ¶ 347.)
247 (15-CVS-1 Third Am. Compl. ¶ 244; 15-CVS-2 Third Am. Compl. ¶ 348.)
248 (Defs.’ Mot. 6–7.)

provisions.” Cleland v. Crumpler, 68 N.C. App. 353, 355 (1984). Whether a contract
is properly suited for
reformation is subject to the same rules of law as applied to all other
instruments in writing. 	It must be alleged and proven that the
instrument sought to be corrected failed to express the real agreement
or transaction because of mistake common to both parties, or because of
mistake of one party and fraud or inequitable conduct of the other.
Frye Reg’l Med. Ctr., Inc. v. Blue Cross Blue Shield of N.C., Inc., 2020 NCBC LEXIS
51, at *35 (N.C. Super. Ct. Apr. 17, 2020) (quoting Peirson v. American Hardware
Mut. Ins. Co., 248 N.C. 215, 219 (1958)).
144. 	To survive summary judgment on a claim for “equitable reformation of a
contract on the basis of inequitable conduct by the promisor”:
a plaintiff must show a factual basis for four essential elements: (1) the
written agreement did not properly express the intent of the parties, (2)
the 	conduct 	of 	the 	promisor 	caused 	the 	improper 	expression, 	(3)
relevant, competent evidence exists outside the written documents
which shows the intention of the parties, and (4) injustice will result if
the contract is not rewritten.”
Id. (quoting Carter v. West Am. Ins. Co., 190 N.C. App. 532, 537–38 (2008)).
145. 	Plaintiffs contend that the “facts here establish all four elements” of a claim
for reformation.249
146. 	As to the first element, Plaintiffs assert that the written agreements did “not
capture the parties’ true agreement” because, although the “parties agreed that
[Window World] would secure best pricing for Plaintiffs and that Plaintiffs would pay
[Window World] no more than $10 per window in rebates” and that “Plaintiffs’
249 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 20.)

licenses were perpetual in the absence of material default,” “all licensing agreements
omitted any reference to rebates, and all agreements from 2006 forward omitted any
reference to [Window World’s] best-pricing promise and allowed [Window World] to
terminate or not to renew Plaintiffs’ license without cause.”250
147. 	Each Plaintiff testified in these actions that the written agreement that the
Plaintiff executed was different from the agreement the Plaintiff understood it to be.
As previously discussed, with the exception of the Ballard, Ford, Jones/Shumate, and
Rose Plaintiffs, all Plaintiffs testified that their agreement with Window World was
that Plaintiffs would pay Window World no more than $10 per window in rebates.251
Similarly, although they dispute the scope of Window World’s best pricing promise,
all Plaintiffs testified that Window World had promised to secure Plaintiffs some form
of best pricing.252 All Plaintiffs further testified that, contrary to the terms in their
written Licensing Agreements, Window World agreed that Plaintiffs’ “licenses” were
perpetual in the absence of a material default.253 	The Court finds this evidence
250 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 20.)
251 (See supra note 104–06.)
252 (See supra note 135–36.)
253 (See, e.g., Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 4.1, Lomax Dep. 110:15–22 (“And Leon
tells me that as long as I don’t do anything to destroy the – or hurt the brand and I keep
paying the vendors, I get to automatically renew? 	That doesn’t jive with what the actual
language reads in the agreement.”), ECF No. 1008.4 (sealed); Pls.’ Br. Opp’n Defs.’ Mot.
Summ. J. Ex. 4.2, Roland Dep. 168:19–25 (“Q: And one of the understandings you had, based
on eight years of experience, is that the term of your agreement would essentially be
perpetual provided you didn’t commit a crime of moral turpitude and paid your bills; correct?
A: That’s correct.”), ECF No. 1008.4 (sealed).)

sufficient to create a genuine issue of material fact as to the first element of Plaintiffs’
reformation claim.
148. 	Plaintiffs 	have 	also 	produced 	substantial 	evidence 	as 	to 	the 	second
element—that “the conduct of the promisor caused the improper expression [of the
parties’ intent].” 	Frye Reg’l Med. Ctr., Inc., 2020 NCBC LEXIS 51, at *35. 	For
example, Plaintiffs testified that Window World frequently represented that the
written agreements were “just paperwork” or a “formality,” that Window World’s oral
promises to Plaintiffs controlled the parties’ relationships, and that, as a result,
Plaintiffs put little stock in the written agreements’ terms.254
149. 	Similarly, Plaintiffs have produced sufficient evidence to meet their burden
on summary judgment to show the third element of a reformation claim. As described
above, Plaintiffs have offered relevant, competent evidence, including Plaintiffs’
deposition testimony, sufficient to permit a factfinder to conclude that the parties
intended their oral agreements, rather than their written Licensing Agreements, to
254 (See, e.g., Defs.’ 1st App. 1.App.114 (“Q: Has anyone at Window World Corporate ever told
or otherwise communicated to Window World Phoenix that it did not intend to enforce the
terms of the Licensing Agreement at Exhibit 214? A: “Todd said that it was just paperwork.
Just formalities. That’s all he said. Q: Did he tell you that he would not enforce its terms?
A: He just told me it was paperwork. It was just a formality is all he said. Said don’t worry
about it, just sign it. 	You have nothing to worry about is what he said.”) (James Ballard);
1.App.5864 (“Q: Would you agree that this is language you signed off on when you signed this
license agreement on September 24th of ’08? A: I signed this based on Todd saying it’s just
formality paperwork to get Gadsden pulled in with Huntsville.”) (Michael Edwards);
1.App.6973 (“Q: Now, as distinct from Mr. Williamson, did you talk to anybody from Window
World Corporate about your concern that you just expressed about these – these provisions?
A: I think I said before, I believe I raised concerns to Sean Gallagher and was told that these
were just formalities, to just make these changes. 	Nothing is going to change. 	It will be
fine.”) (Brian Hopkins); Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. Ex. 2; see also supra notes 143,
189.)

control their relationship with Window World. See, e.g., State v. Jackson, 2024 N.C.
App. LEXIS 766, at *8 (Oct. 1, 2024) (noting that “[c]ompetent evidence is evidence
that a reasonable mind might accept as adequate to support the finding” and that
“the competent-evidence standard is a low bar” (cleaned up)).
150. 	Defendants challenge Plaintiffs’ evidentiary showing, contending that the
“licensing agreements are fully integrated contracts with a merger clause” and that
“[t]he parol-evidence rule bars [reference to] pre-contractual negotiations.”255 	The
Court finds Defendants’ parol evidence argument without merit on the summary
judgment record here.
151. 	Generally, “affidavits or other material offered which set forth inadmissible
facts should not be considered for summary judgment.” Briley v. Farabow, 348 N.C.
537, 544 (1998). See also Strickland v. Doe, 156 N.C. App. 292 (2003) (in ruling on a
motion for summary judgment, the trial court should disregard portions of affidavits
containing hearsay, legal conclusions, or inadmissible evidence). 	However, here, as
discussed at length above, Plaintiffs have offered evidence from which a reasonable
jury could conclude that the written agreements were procured by Window World’s
fraud. North Carolina law is clear that “[t]he parol evidence rule does not apply when
it is alleged and shown that the execution of a written instrument was procured by
fraud.” Fox v. Southern Appliances, Inc., 264 N.C. 267, 274 (1965).
152. 	In addition, parol evidence may supplement a writing where it is silent. See
11 Williston § 33:21 (“If the parties never adopted the writing as a statement of the
255 (Defs.’ Br. Supp. Mot. Summ. J. 32.)

whole agreement, the rule does not exclude parol evidence of additional promises.”).
Because Plaintiffs provide substantial evidence to support their allegations that (1)
the written Licensing Agreements were induced by Window World’s fraud and (2) the
written Licensing Agreements are silent on topics that both parties agree were within
the scope of their agreement, such as rebates, the Court finds that Plaintiffs have
offered sufficient evidence to establish the third element of Plaintiffs’ reformation
claim at the summary judgment stage.
153. 	Last, Plaintiffs have provided sufficient evidence to demonstrate that an
injustice will result if the contract is not rewritten. 	As discussed at length above,
Plaintiffs have represented that they were induced to contract with Window World
by Window World’s alleged promises concerning best pricing, rebates, and the
perpetual nature of Plaintiffs’ licenses.256 A reasonable factfinder could conclude that
injustice 	would 	result 	if 	Window 	World 	could 	avoid 	these 	promises 	through
enforcement of the written agreements omitting these terms.
154. 	Since Plaintiffs have offered sufficient evidence to show at least a genuine
issue of material fact as to each element of their claim for reformation and injunction,
the Court will deny Defendants’ Motion for summary judgment on these claims.
E. Breach of Contract
155. 	Plaintiffs allege in their Third Amended Complaint that “[t]he parties’
agreements, as reflected in their course of dealings, included [Window World’s]
promise to secure for Window World franchisees, including Plaintiffs, superior
256 (See supra notes 107, 123.)

wholesale pricing for the products Plaintiffs purchased, sold, and installed as Window
World franchisees” (emphasis added).257 Plaintiffs allege that Window World breached
this promise by “failing to secure superior wholesale pricing from suppliers, requiring
that Plaintiffs purchase products and supplies at inflated prices from suppliers
selected by [Window World], receiving undisclosed kickbacks or rebates on products
and 	supplies 	purchased 	by 	franchisees 	from 	designated 	suppliers, 	providing
undisclosed ‘C’ pricing to certain franchisees with lower levels of sales, requiring
certain Plaintiffs to take on debt obligations owed to AMI by former franchisees in a
manner not required of similarly situated franchisees, and failing to make franchise
disclosures required by applicable law.”258
156. 	Defendants move for summary judgment on Plaintiffs’ breach of contract
claim, contending generally that (1) the written Licensing Agreements control; (2)
there is no evidence that the written agreements were breached; (3) there is no
evidence that Defendants made or breached any alleged oral “superior wholesale
price” promise; and (4) the parol evidence rule bars pre-contractual negotiations.259
157. 	To maintain an action for breach of contract, a party must show “(1) the
existence of a valid contract; and (2) breach of the terms of that contract.” 	Poor v.
Hill, 138 N.C. App. 19, 26 (2000).
257 (15-CVS-1 Third Am. Compl. ¶ 247; 15-CVS-2 Third Am. Compl. ¶ 351.)
258 (15-CVS-1 Third Am. Compl. ¶ 249; 15-CVS-2 Third Am. Compl. ¶ 353.)
259 (Defs.’ Mot. 7; Defs.’ Br. Supp. Mot. Summ. J. 30.)

158. 	As discussed at length above, the parties dispute whether the written
agreements or the parties’ oral agreements and course of dealings form the contract
between the parties, and the Court has found that each side has offered sufficient
evidence to put this issue to a jury for determination. 	In addition, and also as
discussed above, the Court has found that Plaintiffs have provided substantial
evidence that Defendants breached their contractual “best pricing” promise by
“providing undisclosed ‘C’ pricing to certain franchisees” and by “failing to secure
superior wholesale pricing from suppliers,”260 evidence sufficient to also put these
issues to a jury.
159. 	Accordingly, the Court will deny Defendants’ Motion for summary judgment
on Plaintiffs’ claims for breach of contract, except those claims advanced by the
Jones/Shumate Plaintiffs. 	As discussed previously, the Jones/Shumate Plaintiffs
testified that Window World’s “best pricing” representation concerned non-licensees
within their trade area and were unable to produce evidence that Window World
breached this alleged best pricing promise.261 	The Court therefore will grant
summary judgment for Defendants on the Jones/Shumate Plaintiffs’ breach of
contract claim based on Window World’s alleged best pricing promise.
F. Breach of Covenant of Good Faith and Fair Dealing
160. 	Defendants next seek summary judgment on Plaintiffs’ claim for breach of
the implied covenant of good faith and fair dealing. 	North Carolina law has long
260 (15-CVS-1 Third Am. Compl. ¶ 249; 15-CVS-2 Third Am. Compl. ¶ 353; see also supra
¶¶ 66–78 and related notes.)
261 (See supra ¶ 71 and note 137.)

recognized that there is in every contract an implied covenant of good faith and fair
dealing that “neither party will do anything which injures the right of the other to
receive the benefits of the agreement.” Governor’s Club Inc. v. Governor’s Club Ltd.
P’ship, 152 N.C. App. 240, 251 (2002). Similarly, our courts have recognized that “[a]
contract . . . encompasses not only its express provisions but also all such implied
provisions as are necessary to effect the intention of the parties unless express terms
prevent such inclusion.” Lane v. Scarborough, 284 N.C. 407, 410 (1973).
161. 	To state a valid claim for breach of the implied covenant of good faith and
fair dealing, a plaintiff must “plead that the party charged took action ‘which injure[d]
the right of the other to receive the benefits of the agreement,’ thus ‘depriv[ing] the
other of the fruits of [the] bargain.’ ” Conleys Creek Ltd. P’ship v. Smoky Mt. Country
Club Prop. Owners Ass’n, 255 N.C. App. 236, 253 (2017) (quoting Bicycle Transit
Auth. v. Bell, 314 N.C. 219, 228–29 (1985)). “Evasion of the spirit of the bargain, lack
of diligence and slacking off, willful rendering of imperfect performance, abuse of a
power to specify terms, and interference with or failure to cooperate in the other
party’s performance” may each constitute a breach of the implied covenant of good
faith and fair dealing. 	Intersal, Inc. v. Wilson, 2023 NCBC LEXIS 29, at *67 (N.C.
Super. Ct. Feb. 23, 2023) (quoting Restatement 2d of Contracts § 205 cmt. d (1981)).
162. 	Plaintiffs’ implied covenant claim rests on the same grievances as their
breach of contract claim; specifically, that Window World breached the implied
covenant by:
fail[ing] to secure superior wholesale pricing from suppliers, requir[ing]
that Plaintiffs purchase products and supplies at inflated prices from

suppliers selected by [Window World], receiv[ing] undisclosed kickbacks
or rebates on purchases of products and supplies made by Plaintiffs,
fail[ing] to disclose the kickbacks and rebates, fail[ing] to disclose
[Window World] ownership interests in various suppliers, provid[ing]
undisclosed ‘C’ pricing to certain franchisees with lower levels of sales,
while representing that Plaintiffs were receiving the most favorable ‘B’
pricing, requir[ing] certain Plaintiffs to take on debt obligations owed to
AMI by former franchisees in a manner not required of similarly
situated 	franchisees, 	and 	fail[ing] 	to 	make 	franchise 	disclosures
required by applicable law.262
163. 	Under North Carolina law, “where a party’s claim for breach of the implied
covenant of good faith and fair dealing is based on the same acts as its claim for
breach of contract, we treat the former as part and parcel of the latter.” 	Cordaro v.
Harrington Bank, FSB, 260 N.C. App. 26, 38–39 (2018); see also Se. Anesthesiology
Consultants, PLLC v. Rose, 2019 NCBC LEXIS 52, at *23 (N.C. Super. Ct. Aug. 20,
2019) (“[G]ood faith and fair dealing claims that are ‘part and parcel’ of breach of
contract claims . . . merely stand or fall together.”). Accordingly, the Court will deny
Defendants’ Motion on Plaintiffs’ claim for breach of the implied covenant of good
faith and fair dealing in the same manner and to the same extent as the Court has
denied Defendants’ Motion on Plaintiffs’ breach of contract claim. 	Thus, the Court
will likewise enter summary judgment against the Jones/Shumate Plaintiffs on their
good faith and fair dealing claim as it did on those Plaintiffs’ breach of contract claim.
G. Unjust Enrichment
164. 	Plaintiffs plead, in the alternative to their claims for breach of contract and
breach of the implied covenant of good faith and fair dealing, that “Defendants have
262 (15-CVS-1 Third Am. Compl. ¶ 256; 15-CVS-2 Third Am. Compl. ¶ 360.)

been unjustly enriched at Plaintiffs’ expense.”263 	Plaintiffs specifically allege that
Window World “engaged in a wide range of misconduct that was intended to harm
Plaintiffs’ interests and to further the interests of [Window World]”264 and that “[i]t
would be inequitable and unjust” for Window World “to retain the benefits of its
franchise relationships with Plaintiffs, including the income it received as a result of
those relationships.”265 	Defendants contend that they are entitled to summary
judgment on Plaintiffs’ claim for unjust enrichment because “the claim cannot lie
where there is an express contract.”266
165. 	Under North Carolina law, “the mere fact that one party was enriched, even
at the expense of the other, does not bring the doctrine of unjust enrichment into
play.” Butler v. Butler, 239 N.C. App. 1, 7 (2015). To survive a motion for summary
judgment, and to establish a prima facie case for unjust enrichment, Plaintiffs must
provide evidence of the following elements:
First, one party must confer a benefit upon the other party. Second, the
benefit must not have been conferred officiously, that is it must not be
conferred by an interference in the affairs of the other party in a manner
that is not justified in the circumstances. Third, the benefit must not be
gratuitous. 	Fourth, 	the 	benefit 	must 	be 	measurable. 	Last, 	the
defendant must have consciously accepted the benefit.
263 (15-CVS-1 Third Am. Compl. ¶ 281; 15-CVS-2 Third Am. Compl. ¶ 36.)
264 (15-CVS-1 Third Am. Compl. ¶ 283; 15-CVS-2 Third Am. Compl. ¶ 388.)
265 (15-CVS-1 Third Am. Compl. ¶ 284; 15-CVS-2 Third Am. Compl. ¶ 389.)
266 (Defs.’ Br. Supp. Mot. Summ. J. 12, note 4 (citing Booe v. Shadrick, 322 N.C. 567, 570
(1988)).)

JPMorgan Chase Bank, Nat’l Ass’n v. Browning, 230 N.C. App. 537, 541–42 (2013)
(cleaned up). Thus, “to prevail on a claim of unjust enrichment, a plaintiff must show
that property or benefits were conferred on a defendant under circumstances which
give rise to a legal or equitable obligation on the part of the defendant to account for
the benefits received.” Butler, 239 N.C. App. at 7 (citing Norman v. Nash Johnson &
Sons’ Farms, Inc., 140 N.C. App. 390, 417 (2000)) (cleaned up).
166. 	Furthermore, a claim for unjust enrichment cannot survive where a contract
exists between two parties because the “doctrine of unjust enrichment is based on
quasi-contract’ or contract ‘implied in law[.]’ ” Atl. & E. Carolina Ry. Co. v. Wheatly
Oil Co., 163 N.C. App. 748, 753 (2004); see also Butler, 239 N.C. App. at 7; Booe v.
Shadrick, 322 N.C. 567, 570 (1988); Delta Envtl. Consultants, Inc. v. Wysong & Miles
Co., 132 N.C. App. 160, 165 (1999) (“It is well established that if there is a contract
between the parties, the contract governs the claim and the law will not imply a
contract . . . [in such cases] an action for breach of contract, rather than unjust
enrichment, is the proper cause of action.” (internal citation and quotation marks
omitted)). Thus, a claim for unjust enrichment necessarily fails whenever a written
or oral contract was in effect between the parties.
167. 	Based on the above, the Court will deny Defendants’ Motion as to Plaintiffs’
unjust enrichment claim at the summary judgment stage. 	All Plaintiffs have
provided substantial evidence to permit a factfinder to conclude that the written
Licensing Agreements were induced by Window World’s fraud and that this fraud
rendered 	the 	written 	agreements 	Plaintiffs 	executed 	void 	and 	unenforceable.

Genuine issues of material fact remain concerning whether a valid contract, whether
it be oral or written, was in effect between the parties. Whether a valid, enforceable
contract existed between Plaintiffs and Window World is a question for the jury, and
thus, a factual issue that cannot be resolved at the summary judgment stage.
H. Violation of N.C.G.S. § 75-1.1
168. 	Plaintiffs also contend that they are “entitled to recover from Defendants for
unfair or deceptive acts or practices.”267 	Specifically, Plaintiffs allege that the
following unfair or deceptive acts or practices taken by Window World violated North
Carolina’s 	Unfair 	and 	Deceptive 	Trade 	Practices 	Act, 	N.C.G.S. 	§ 75-1.1 	(the
“UDTPA”):
a. 	“fail[ing] to make disclosures required by franchise disclosure laws”;
b. 	“repeatedly 	misrepresent[ing] 	that 	[Window 	World] 	would 	secure 	for
Plaintiffs wholesale prices from suppliers at levels that fell below what
retail establishments could otherwise obtain in the respective franchise
territory and that [Window World’s] buying power allowed it to secure the
best prices available for Plaintiffs”;
c. 	“repeatedly misrepresent[ing] that [Window World] had two tiers of dealer
pricing (‘A’ and ‘B’ pricing) for window purchases from AMI”;
d. “repeatedly misrepresent[ing] that Plaintiffs were entitled to receive, and
in fact would receive and were receiving the best available pricing on
267 (15-CVS-1 Third Am. Compl. ¶ 276; 15-CVS-2 Third Am. Compl. ¶ 380.)

products and supplies if they achieved a certain volume of unit sales in a
month”;
e. 	“provid[ing] undisclosed ‘C’ pricing to certain franchisees with lower levels
of sales while representing Plaintiffs were receiving the most favorable ‘B’
pricing”;
f. 	“receiv[ing] 	undisclosed 	kickbacks 	or 	rebates 	on 	Plaintiffs’
purchases . . . from [Window World] required suppliers”;
g. 	“hid[ing] from Plaintiffs the undisclosed kickbacks or rebates that [it]
receives 	on 	Plaintiffs’ 	purchases . . . from 	[Window 	World]-designated
suppliers and all information about the amount of such rebates, the way
such rebates were negotiated, calculated, and applied, the portions of the
prices paid by Plaintiffs that constituted such rebates, and the impact of
the rebates on the cost of goods sold by Plaintiffs”;
h. “requir[ing] 	Plaintiffs 	to 	assume 	debt 	owed 	by 	prior 	franchisees 	to
vendors . . . by former franchisees in a manner not required of similarly
situated franchisees”;
i. 	“fail[ing] to disclose that [it] was obligated to pay some or all of the debt
that [Window World] required Plaintiffs to assume”; and
j. 	with certain designated suppliers, “agree[ing] to charge Plaintiffs inflated
prices for products and supplies to provide greater revenue to [Window
World].”268
268 (15-CVS-1 Third Am. Compl. ¶ 278; 15-CVS-2 Third Am. Compl. ¶ 382.)

169. 	To maintain a private cause of action under the UDTPA, a plaintiff must
show that “(1) the defendant committed an unfair or deceptive act, (2) the act in
question was in or affecting commerce, and (3) the act was the proximate cause of the
plaintiff's injuries.” Dalton v. Camp, 353 N.C. at 656. 	“A practice is unfair when it
offends established public policy as well as when the practice is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers.” 	Marshall v.
Miller, 302 N.C. 539, 548 (1981)). “A deceptive practice is one which has the ‘capacity
or tendency to deceive;’ proof of actual deception is not necessary.” Lincoln v. Bueche,
166 N.C. App. 150, 158 (2004) (quoting Abernathy v. Ralph Squires Realty Co., 55
N.C. App. 354, 357 (1982)).
170. 	Plaintiffs contend that they are entitled to summary judgment on their
UDTPA claim as “there are no genuine issues of material fact,” and they are entitled
to judgment as a matter of law.269
171. 	Defendants likewise seek summary judgment on Plaintiffs’ claim, arguing
that “(1) [t]he Franchise Rule cannot be privately enforced; (2) [i]ncorporation of the
Franchise Rule would contradict the North Carolina Business Opportunity Sales Act;
(3) [p]ervasive regulation of franchise relationships precludes application of section
75-1.1; (4) [c]hoice-of-law principles foreclose application of section 75-1.1 to foreign
Plaintiffs; and (5) [s]ection 75-1.1 does not apply extraterritorially to claims by foreign
plaintiffs against in-state defendants complaining of foreign injuries.”270 Defendants
269 (Pls.’ Mot. 3–4.)
270 (Defs.’ Mot. 12–13.)

further contend that “[a]ll grounds [for summary judgment] that apply to the fraud
claims also apply to the section 75-1.1 claims as well.”271
172. 	Ms. Whitworth, in her individual capacity, also seeks summary judgment
on Plaintiffs’ UDTPA claim,272 contending that “there is no genuine issue of material
fact that the Chapter 75 claim fails and cannot mature into liability that could be
imposed on [Ms. Whitworth] due to Plaintiffs’ lack of in-state injury.”273 Specifically,
Ms. Whitworth argues:
Plaintiffs do not seek damages for physical injuries sustained in North
Carolina, damage to or loss of property in North Carolina, loss of
business opportunities in North Carolina, or any other compensable
injury allegedly sustained in North Carolina. Because Plaintiffs’ alleged
injuries were not suffered in North Carolina, Plaintiffs do not have and
cannot prevail on a Chapter 75 claim. 	Accordingly, Plaintiffs’ Chapter
75 claim – including the demand for treble damages – cannot create
271 As with their motion for summary judgment on Plaintiffs’ fraud claims, Defendants argue
that summary judgment on Plaintiffs’ UDTPA claim is warranted because “(6) [c]laims based
on the Franchise Rule are time-barred because Plaintiffs had all necessary facts when they
received their Licensing Agreements; (7) [c]laims based on the Franchise Rule are time-
barred because the continuing-wrong doctrine does not apply; (8) [t]he Franchise Rule does
not provide a disclosure duty; (9) [o]mission claim fails because Defendants had no duty to
disclose; (10) [o]mission claim fails because Plaintiffs did not reasonably rely on any omission;
(11) [o]mission claim fails because allegedly omitted information was not material and
Plaintiffs did not actually rely on any omission; (12) [e]xpress misrepresentation claim fails
because there was no misrepresentation of fact; (13) [e]xpress misrepresentation claim fails
because 	Plaintiffs 	did 	not 	reasonably 	rely 	on 	any 	misrepresentation; 	(14) 	[e]xpress
misrepresentation 	claim 	fails 	because 	Plaintiffs 	did 	not 	actually 	rely 	on 	any
misrepresentation; (15) [c]laim based on C-pricing theory fails because there is no evidence
that Plaintiffs were promised the absence thereof; (16) [c]laim based on C-pricing theory fails
because there is no injury caused by non-competitors receiving different pricing; (17) [c]laim
based on assumed-debt theory fails because Plaintiffs voluntarily entered into contracts in
new territories; [and] (18) [p]arol-evidence rule bars reference to prior oral statements.”
(Defs.’ Mot. 13–14.)
272 (Whitworth’s Mot.)
273 (Whitworth’s Mot. 1.)

liability that may be imposed on [Ms. Whitworth] and should be
dismissed.274
173. 	Historically, N.C.G.S. § 75-1.1 was “specifically limited to dealings within
[North Carolina].” The ‘In’ Porters, S.A. v. Hanes Printables, Inc., 663 F. Supp. 494,
501 	(M.D.N.C. 	1987). 	However, 	in 	1977, 	the 	General 	Assembly 	deleted 	this
geographical limitation. Id. To determine where a UDTPA action arises, the North
Carolina appellate courts have not firmly determined whether to apply the “most
significant relationship” test or the lex loci test. 	See, e.g., Izzy Air, LLC v. Triad
Aviation, Inc., 284 N.C. App. 655, 659 (2022). Under the most significant relationship
test, a court must look to “the law of the state having the most significant relationship
to the occurrence giving rise to the action.” Id. (quoting Andrew Jackson Sales v. Bi-
Lo Stores, Inc., 68 N.C. App. 222, 225 (1984)). Under the lex loci test, however, “[t]he
law of the State where the last act occurred giving rise to [the] injury governs [the]
Sec. 75-1.1 action.” Id. (alterations in original) (quoting United Va. Bank v. Air-Lift
Assocs., 79 N.C. App. 315, 321 (1986)). This Court previously opined in this case that
“the Supreme Court of North Carolina will likely apply the lex loci rule to section 75-
1.1 claims based on its rejection of the modern trend towards the ‘most significant
relationship’ test in the court’s Boudreau decision and has applied the lex loci rule to
such claims.” Window World of Baton Rouge, LLC v. Window World, Inc., 2018 NCBC
LEXIS 60, at *25–26 (N.C. Super. Ct. July 12, 2017); Boudreau v. Baughman, 322
274 (Br. Supp. Tammy Whitworth’s Mot. Partial Summ. J. on Pls.’ Attempt to Impose Liability
Arising Out of N.C. Gen. Stat. § 75-1.1 Due to Lack of In-State Injury 2 [hereinafter
“Whitworth’s Br.”], ECF No. 712 (sealed), 715 (redacted).)

N.C. 331, 335–36 (1988). This Court has not changed its view and therefore will apply
the lex loci test to Plaintiffs’ section 75-1.1 claims.275
174. 	Applying the lex loci test here, the Court finds that the undisputed evidence
shows that the last act giving rise to Plaintiffs’ injuries—indeed, all of the events and
circumstances giving rise to Plaintiffs’ UDTPA claims—occurred outside North
Carolina. It is undisputed that all Plaintiffs are located outside North Carolina, all
of their business operations are outside North Carolina, Window World’s alleged
unfair or deceptive trade practices occurred outside North Carolina, Plaintiffs’ lost
sales and revenue occurred outside North Carolina, and Plaintiffs’ allegedly excessive
payments to Window World were made from outside North Carolina.
175. 	Defendants contend that lost profits and overpayment injuries are deemed
to have occurred “where the plaintiff feels the pain,” which usually “will be in the
275 The Court finds further, recent support for its conclusion in the Supreme Court of North
Carolina’s decision in SciGrip, Inc. v. Osae, 373 N.C. 409 (2020). 	In that case, which was
decided three years after this Court’s 2017 opinion quoted above, the Supreme Court elected
to apply the lex loci test to a claim for misappropriation of trade secrets, stating “this Court’s
jurisprudence favors the use of the lex loci test in cases involving tort or tort-like claims.” Id.
at 420. The Supreme Court explained:
[a]lthough we cannot disagree with SciGrip’s contention that use of the most
significant relationship test would provide North Carolina courts with greater
flexibility in identifying the state whose law should apply in any particular
instance, that increased flexibility is achieved at the cost of introducing
significant uncertainties into the process of identifying the state whose law
should apply, which we do not believe would be beneficial. Moreover, while the
application of the lex loci test can be difficult in some circumstances, including
cases involving events that occur in and entities associated with multiple
jurisdictions, those difficulties pale in comparison with the lack of certainty
inherent in the application of a totality of the circumstances test such as the
most significant relationship test.
Id. at 421–22.

state of the plaintiff’s principal place of business.”276 	See, e.g., Clifford v. Am. Int’l
Specialty Lines Ins. Co., 2005 WL 2313907, No. 1:04CV486, at *8 (M.D.N.C. Sep. 21,
2005) (“In determining where the injury occurred in a case involving commercial or
financial injury rather than physical injury, courts often look at the location where
the economic loss was felt.”). 	Plaintiffs counter that the federal cases on which
Defendants rely are not binding on this Court and that “the law of the state where
the wrongful conduct occurred – not the state where plaintiffs felt economic loss in
their ‘pocketbook’ ” should govern – in this case, North Carolina.277
176. 	While Plaintiffs are correct that the North Carolina appellate courts have
not yet adopted the ”pocketbook rule,” the majority of federal courts in North Carolina
have followed this approach in the absence of controlling authority from North
Carolina’s appellate courts. See The ‘In’ Porters, S.A., 663 F.Supp. at 501–02 (finding
that “section 1-75.4(4), as applied to defining the reach of 75-1.1, requires an in-state
injury to plaintiff before plaintiff can state a valid unfair trade [practice] claim” and
“section 75-1.1 applies only if the plaintiff alleges an in-state, injurious effect on his
business operations in North Carolina.”); Bendfeldt v. Window World, Inc., No.
5:17CV39-GCM, 2018 U.S. Dist. LEXIS 243830, at *3 (W.D.N.C. June 22, 2018) (“The
majority of federal courts within North Carolina hold that a business must have both
suffered an injury in North Carolina and have an operational presence within the
state in order to have a claim under N.C.G.S. § 75-1.1.” (emphasis in original)); Dixie
276 (Defs.’ Br. Supp. Mot. Summ. J. 79.)
277 (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. 80 (citing SciGrip, Inc., 373 N.C. at 422–23).)

Yarns, Inc. v. Plantation Knits, Inc., No. 3:93CV301-P, 1994 U.S. Dist. LEXIS 21725,
at *6 (W.D.N.C. July 12, 1994) (“First, the claim must involve ‘an in-state injurious
effect on [plaintiff’s] business operations in North Carolina.’ ” (alteration in original)
(quoting The ‘In’ Porters, S.A., 663 F. Supp. at 501–02)); see also US LEC Commc’ns,
Inc. v. Qwest Commc’ns Corp., No. 3:05CV11, 2006 U.S. Dist. LEXIS 33705, at *3
(W.D.N.C. May 15, 2006) (“[T]he claim must involve an in-state injurious effect on
plaintiff’s business operations in North Carolina, and the claim must implicate an
effect that is substantial . . . on a plaintiff’s in-state business.” (cleaned up)).
177. 	Although 	these 	federal 	cases 	are 	not 	binding, 	the 	Court 	finds 	them
persuasive and concludes that the Supreme Court of North Carolina would apply
their 	holdings 	should 	it 	be 	presented 	with 	the 	issue 	now 	before 	the 	Court.
Accordingly, since Plaintiffs can point to neither an in-state injury nor any in-state
business operations, the Court will grant summary judgment for Ms. Whitworth and
Defendants, and deny summary judgment for Plaintiffs, on Plaintiffs’ section 75-1.1
claim.
I. 	Fraudulent Transfer
178. 	Plaintiffs allege in their Third Amended Complaints that “[o]n June 23,
2010, [Window World] transferred all its intellectual property assets, including but
not limited to Window World trademarks, to an insider, WWI, with the intent to
hinder, delay or defraud Plaintiffs, and other current or future creditors.”278 	As a
278 (15-CVS-1 Third Am. Compl. ¶ 289; 15-CVS-2 Third Am. Compl. ¶ 394.)

result, Plaintiffs claim that they “are entitled to avoidance of [Window World’s]
transfers to WWI to the extent necessary to satisfy Plaintiff’s claims.”279
179. 	Plaintiffs bring their fraudulent transfer claims under N.C.G.S. §§ 39-
23.4(a)(1) and 39-23.4(a)(2) of the North Carolina Uniform Voidable Transactions Act
(the “NCUVTA”, N.C.G.S. §§ 39-23.1–.12).280 	Sections 39-23.4(a)(1) and (2) provide
as follows:
(a) A transfer made or obligation incurred by a debtor is voidable as to a
creditor, whether the creditor’s claim arose before or after the transfer
was made or the obligation was incurred, if the debtor made the transfer
or incurred the obligation:
(1) With intent to hinder, delay, or defraud any creditor of the debtor;
or
(2) Without receiving a reasonably equivalent value in exchange for
the transfer or obligation, and the debtor:
a. Was engaged or was about to engage in a business or a
transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction; or
b. Intended to incur, or believed that the debtor would incur, debts
beyond the debtor’s ability to pay as they became due.
180. 	Plaintiffs move for summary judgment on their fraudulent transfer claims,
contending there are no genuine issues of material fact that (1) “Plaintiffs are
‘creditors’ for purposes of a fraudulent transfer claim” and (2) Window World
fraudulently transferred its marks to WWI.281
279 (15-CVS-1 Third Am. Compl. ¶ 300; 15-CVS-2 Third Am. Compl. ¶ 405.)
280 The Court has previously dismissed the Non-Tolling Plaintiffs’ claim under N.C.G.S.
§§ 39-23.4(a)(2). See Window World of Baton Rouge, LLC, 2019 NCBC LEXIS 11, at *34–35.
Thus, the Court will only consider the Non-Tolling Plaintiffs’ claim under N.C.G.S. § 39-
23.4(a)(1) and the Tolling Plaintiffs’ claims under both N.C.G.S. §§ 39-23.4(a)(1) and (2).
281 (Pls.’ Br. Supp. Mot. Partial Summ. J. 86–88.)

181. 	Defendants also move for summary judgment on Plaintiffs’ fraudulent
transfer claims, arguing that (1) “[t]he Non-Tolling-Agreement Plaintiffs’ [remaining]
claims under section 39.23.4(a)(1) are barred by the statute of repose”; (2) “[t]he
Tolling-Agreement Plaintiffs’ claims are barred by the statute of repose because
[WWI] was not a party to the Tolling Agreement and there is no evidence to support
piercing the [Window World] corporate veil to reach [Ms. Whitworth], and no evidence
to then support reaching [WWI] via an alter ego or other theory”; and (3) “[t]he
Tolling-Agreement Plaintiffs’ claims are barred on their merits because there is no
evidence to show that [Window World] created [WWI] to hinder, delay, or defraud any
creditor.”282 	Defendant WWI also seeks summary judgment on the Non-Tolling
Plaintiffs’ fraudulent transfer claims, contending that these Plaintiffs’ “existing
NCUVTA claims are barred by the statute of repose.”283
182. 	As a threshold matter, section 39-23.9 provides a statute of repose that any
“claim for relief with respect to a voidable transfer or obligation” arising under section
39-23.4(a)(1) must be brought “not later than four years after the transfer was made
or the obligation was incurred, or, if later, not later than one year after the transfer
or obligation was or could reasonably have been discovered by the claimant.”
Similarly, section 39-23.9 provides that a claim arising under section 39-23.4(a)(2)
282 (Defs.’ Mot. 15–16.)
283 (WWI’s Mot.)

must be brought “not later than four years after the transfer was made or the
obligation was incurred.”284
183. 	Defendants 	first 	contend 	that 	the 	Non-Tolling 	Plaintiffs’ 	section 	39-
23.4(a)(1) claims are “barred because the June 23, 2010 transfer ‘was or could
reasonably have been discovered by the claimant’ by 2014 – one year before they
sued.”285 	Defendants contend that Plaintiffs reasonably could have discovered the
transfer by this time because:
(1) “[t]he assignment of the marks [to WWI] was recorded and publicly available
on the [United States Patent & Trademark Office (“USPTO”)] website as of
June 23, 2010”;286
(2) “[e]ach Plaintiff received [Window World’s] initial FDD in October of 2011,
which expressly disclosed [WWI’s] ownership and licensing of the marks to
[Window World] on pages 1 and 20”;287
284 (N.C.G.S. § 39-23.9(1), (2); See also Pls.’ Resp. Opp’n Defs.’ Mot. Partial Summ. J. Seeking
Dismissal Certain Pls.’ Claims Under the NCUVTA 2 [hereinafter “Pls.’ NCUVTA Resp.”],
15-CVS-2 ECF No. 1067 (sealed), 1084 (redacted); KB Aircraft Acquisition, LLC v. Berry, 249
N.C. App. 74, 83–85 (2016).)
285 (Defs.’ Br. Supp. Mot. Summ. J. 84.)
286 (Defs.’ Br. Supp. Mot. Summ. J. 84 (emphasis in original); see also Aff. Donna Cottelli
[hereinafter “Cottelli Aff.”], dated Apr. 10, 2019, at ¶ 3, 15-CVS-2 ECF No. 748.)
287 (Defs.’ Br. Supp. Mot. Summ. J. 85 (emphasis in original); see also Defs.’ 1st App.
1.App.1472–73, 	2076 (James 	Lomax, 	III); 	1.App.6844–45 	(Rick 	Rose); 	1.App.3835–37
(Kenneth Ford, Jr.).)

(3) “[m]any Plaintiffs reviewed and discussed the October 2011 FDD with others,
including attorneys”;288
(4) “[t]he marks were discussed at numerous owner’s forums in 2011, 2012 and
2013, attended by numerous Plaintiffs”;289
(5) “[a]ll Plaintiffs received draft agreements with [Window World] that referred
to USPTO filings and registration numbers for the trademarks owned by
[WWI], which many Plaintiffs signed”;290 and
(6) “[Plaintiffs] allege that the transfer to [WWI] was actually known by certain
Plaintiffs prior to April in 2011.”291
184. 	In their response to WWI’s Motion, the Non-Tolling Plaintiffs “concede that
their fraudulent transfer claim premised on the 2010 transaction by which [Window
World] transferred its trademarks to WWI for no consideration are, due to the
interpretive decision in KB Aircraft Acquisition, LLC v. Berry, 249 N.C. App. 74
(2016), barred by the statute of repose.”292 The Court agrees and therefore will grant
288 (Defs.’ Br. Supp. Mot. Summ. J. 85.)
289 (Defs.’ Br. Supp. Mot. Summ. J. 85; see also Aff. Steven Kamody, dated Apr. 10, 2019, at
¶¶ 7–14, 15-CVS-2 ECF No. 753 (sealed).)
290 (Defs.’ Br. Supp. Mot. Summ. J. 85; see also Defs.’ 3d App. 3.App.21526–631; Aff. Jacolyn
Barlow, dated Apr. 10, 2019, at ¶ 19, 15-CVS-2 ECF No. 752 (sealed).)
291 (Defs.’ Br. Supp. Mot. Summ. J. 85; 15-CVS-2 Third Am. Compl. ¶ 397 (“[Window World’s]
intent in this regard was confirmed in statements made to Mr. Lomax and to James W.
Roland prior to April 2011 by upper management of [Window World] about the purpose of
the June 23, 2010 transfers.”).)
292 (Pls.’ NCUVTA Resp. 2.) In KB Aircraft Acquisition, LLC, 249 N.C. App. at 81, the Court
of Appeals stated “[i]n conformity with the plain meaning of the statute, we hold that the
term ‘transfer’ within N.C.G.S. § 39-23.9 refers to the date that the transfer actually

Defendants’ and Defendant WWI’s separate Motions for summary judgment on the
Non-Tolling Plaintiffs’ claims under section 39-23.4(a)(1).
185. 	The Non-Tolling Plaintiffs attempt to save their fraudulent transfer claim
by arguing that “discovery has revealed another basis for the Non-Tolling Plaintiffs’
fraudulent 	transfer 	claim: 	distributions 	paid 	by 	[Window 	World] 	to 	Tammy
Whitworth while [Window World] was insolvent.”293 	These Plaintiffs argue that
“[b]ecause a claim based on those distributions is not barred by the statute of repose,
Defendants’ Motion should be denied.”294 But as WWI correctly contends: “[f]or nine
years (2015 to 2023), [Window World’s] transfer of the marks to [WWI] has been the
sole basis for Plaintiffs’ fraudulent transfer claims. 	Plaintiffs never, until their
summary judgment brief filed in late 2023, asserted a fraudulent transfer claim based
on distributions to [Ms. Whitworth].”295
occurred, and not the date that the fraudulent nature of the transfer became apparent.”
Thus, the court held that N.C.G.S. § 39-23.9 barred plaintiff creditor’s claims under sections
39-23.4(a)(1) and 39-23.5(a) because they arose from a transfer over four years before suit
was filed, and plaintiff had notice of the transfer over one year before suing, as due diligence
would have given inquiry notice. Id. at 89–90.
293 (Pls.’ NCUVTA Resp. 2.)
294 (Pls.’ NCUVTA Resp. 2.) 	The Non-Tolling Plaintiffs contend that Window World’s
transfers to Ms. Whitworth are in violation of N.C.G.S. § 39-23.5(a), which provides: 	“A
transfer made or obligation incurred by a debtor is voidable as to a creditor whose claim arose
before the transfer was made or the obligation was incurred if the debtor made the transfer
or incurred the obligation without receiving a reasonably equivalent value in exchange for
the transfer or obligation, and the debtor was insolvent at that time or the debtor became
insolvent as a result of the transfer or obligation.” (See Pls.’ NCUVTA Resp. 3.)
295 (Reply Br. Window World International, LLC Supp. Mot. Partial Summ. J. Seeking
Dismissal Certain Pls.’ Claims Under the NCUVTA 3, 15-CVS-2 ECF No. 1093 (sealed); see,
e.g., 15-CVS-1 Third Am. Compl. ¶¶ 286–300 (“Plaintiffs are entitled to avoidance of [Window
World’s] transfers to WWI”); 15-CVS-2 Third Am. Compl. ¶¶ 391–405 (same); 15-CVS-1

186. 	The Court will not permit the Non-Tolling Plaintiffs to raise this new theory
for their fraudulent transfer claim at this late date. 	To do otherwise would be
fundamentally unfair to Defendants. 	See, e.g., B&D Software Holdings, LLC, 2024
NCBC LEXIS 103, at *17–18 (rejecting a party’s effort to assert a new theory of
recovery for the first time at summary judgment as unfair); Bradshaw, 2020 NCBC
LEXIS 106, aff’d, 2022 N.C. App. LEXIS 950, aff’d per curiam, 385 N.C. 642.
187. 	Accordingly, the Court will deny the Non-Tolling Plaintiffs’ Motion on their
claims under section 39-23.4(a)(1), grant Defendants’ and WWI’s separate Motions on
those claims, and enter summary judgment against the Non-Tolling Plaintiffs on
their fraudulent transfer claims under section 39-23.4(a)(1).
188. 	Turning next to the Tolling Plaintiffs’ fraudulent transfer claims, the Court
notes that it has previously determined that the Tolling Agreement tolled the statute
of repose for the Tolling Plaintiffs’ claims under N.C.G.S. §§ 39-23.4(a)(1) and
(a)(2).296 	As stated above, under section 39-23.4(a), a transfer is voidable as to a
present or future creditor297 if the transfer was made:
(1) With intent to hinder, delay, or defraud any creditor of the debtor; or
Second Am. Compl. ¶¶ 232–64, ECF. No. 151 (same); 15-CVS-2 Second Am. Compl. ¶¶ 374–
88, ECF. No. 92 (same); 15-CVS-1 First Am. Compl. ¶¶ 195–209, ECF. No. 33 (same); 15-
CVS-2 First Am. Compl. ¶¶ 306–17, ECF. No. 20; 15-CVS-1 Compl. ¶¶ 187–98, ECF. No. 2
(same); 15-CVS-2 Compl. ¶¶ 243–54, ECF. No. 2 (same.)
296 See Window World of Baton Rouge, LLC, 2019 NCBC LEXIS 11, at *26–27.
297 The NCUVTA defines a “creditor” as “a person that has a claim.” “Claim” is then defined
as a “right to payment, whether or not the right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured.” 	N.C.G.S. §§ 39-23.1(3), (4). 	The parties do not dispute that the
Tolling Plaintiffs are “creditors” for purposes of the NCUVTA.

(2) Without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor:
a. Was engaged or was about to engage in a business or a
transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction.
189. 	Section 39-23.4(b) provides that “intent” may be determined by considering,
among other factors, whether:
(1) The transfer or obligation was to an insider;
(2) The debtor retained possession or control of the property transferred
after the transfer;
(3) The transfer or obligation was disclosed or concealed;
(4) Before the transfer was made or obligation was incurred, the debtor
had been sued or threatened with suit;
(5) The transfer was of substantially all the debtor's assets;
(6) The debtor absconded;
(7) The debtor removed or concealed assets;
(8) The value of the consideration received by the debtor was reasonably
equivalent to the value of the asset transferred or the amount of the
obligation incurred;
(9) The debtor was insolvent or became insolvent shortly after the
transfer was made or the obligation was incurred;
(10) The transfer occurred shortly before or shortly after a substantial
debt was incurred;
(11) The debtor transferred the essential assets of the business to a
lienor that transferred the assets to an insider of the debtor;
(12) The debtor made the transfer or incurred the obligation without
receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor reasonably should have believed that the
debtor would incur debts beyond the debtor's ability to pay as they
became due; and

(13) The debtor transferred the assets in the course of legitimate estate
or tax planning.
190. 	To support their claim under section 39-23.4(a)(1), the Tolling Plaintiffs
contend that “[Mr.] Ingle, [Window World’s] then-President, thrice testified that the
assignment was intended to shield [Window World’s] intellectual property from
‘claims like lawsuits made by licensees or franchisees.’ ”298 	They argue in addition
that “several of the factors listed in Section 39-23.4(b) demonstrate a fraudulent
transfer – including that [Window World] was insolvent, the intellectual property
assets transferred for no consideration were easily [Window World’s] most valuable
assets, [Window World] transferred the assets to an LLC controlled by an insider,
and [Window World] retained control of the assets through its domination of
WWI[.]”299
191. 	Defendants 	argue 	that 	the 	Tolling 	Plaintiffs’ 	claims 	under 	section
39-23.4(a)(1) fail for lack of evidence, contending that “[WWI] was created at [Mr.]
Ingle’s suggestion, not to hinder, delay or defraud any creditor, but rather: (1) for
multiple business reasons to protect the [Window World] IP against all outside
agencies,300 and (2) to make a potential future sale easier.”301 	Defendants also
298 (Pls.’ Br. Supp. Mot. Partial Summ. J. 87.)
299 (Pls.’ Br. Supp. Mot. Partial Summ. J. 87.)
300 (Defs.’ Br. Supp. Mot. Summ. J. 86; see Defs.’ 1st App. 1.App.10338 (“I was the first one to
suggest it”), 10674–75 (formed to protect Window World IP from any licensees, franchisees,
outside agencies, without focus on Marie Whitworth) (Howard Blair Ingle).)
301 (Defs.’ Br. Supp. Mot. Summ. J. 86; see Defs.’ 1st App. 1.App.10675 (Howard Blair Ingle).)

contend that Plaintiffs’ representation that Window World “did not receive any value
at all” for the transfer to WWI is incorrect, asserting that “[Window World] gained
protection for its marks in the transaction by putting them in a separate entity,302
value that Plaintiffs’ expert confirmed.”303 Last, Defendants contend that “whether
[Window World] was ‘insolvent’ on the date of and after the transfer is disputed” and,
as to the section 39-23.4(b) factors, “8 of the 13 factors weigh in Defendants’ favor.”304
192. 	Defendants ignore, however, that the Tolling Plaintiffs have produced
substantial evidence, in particular through the deposition testimony of Mr. Ingle, of
Window World’s intent to “hinder, delay, or defraud any creditor.”305 In addition, the
Tolling Plaintiffs have produced substantial evidence that Window World was
insolvent at the time of the 2010 Transfer.306 	There is also little dispute that the
302 (See Defs.’ 1st App. 1.App.16109–10 (Zachary Luffman).)
303 (Defs.’ Resp. Pls.’ Mot. Summ. J. 91; see Defs.’ 1st App. 1.App.9510–11 (Charles Modell).)
304 (Defs.’ Resp. Pls.’ Mot. Summ. J. 91, 93.)
305 (See, e.g., Volume Two Pls.’ Dep. Excerpts, Ex. MM, Blair Ingle 7/31/14 Dep. 104:8–16, (“Q:
Was [the 2010 Transfer] at least in part for the protection of the intellectual property of
Window World, Inc. to protect it from the claims in this lawsuit? A: These claims would be
part of those, yeah.”), 105:1–18, ECF No. 985.13 (sealed); Volume Two Pls.’ Dep. Excerpts,
Ex. HH, Blair Ingle 11/29/17 Dep. 115:8–118:17 	(“Q: And [the decision to make the 2010
Transfer] was also at a time after there had been allegations made by dealers that this was
– or Window World was actually a franchise and not a license arrangement, correct? A: Those
timelines are true.”), ECF No. 985.8 (sealed); Volume Two Pls.’ Dep. Excerpts, Ex. YY, Blair
Ingle 11/30/17 Dep. 344:25–345:5 (“Q: In other words, if Window World, Inc. was attacked by
a creditor, right, got a judgment, by having the marks in a separate company, the store
owners would be protected from that. Correct?” A: That’s correct.”), ECF No. 985.25 (sealed).)
306 (See Defs.’ 2d App. 2.App.17036 (Window World, Inc.’s 2008-10 Consolidated Balance
Sheets).) Defendants acknowledge that “whether [Window World] was ‘insolvent’ on the date
of and after the transfer is disputed.” (Defs.’ Resp. Pls.’ Mot. Summ. J. 91.)

intellectual property assets Window World transferred to WWI were valuable assets,
that Window World transferred the assets without receiving monetary compensation,
that WWI was controlled by an insider (Ms. Whitworth), or that Window World
“retained control of the assets through its domination of WWI.”307
193. 	Based on the above, the Court finds that the Tolling Plaintiffs have provided
sufficient evidence to permit a reasonable jury to conclude that the 2010 Transfer was
made “with intent to hinder, delay, or defraud any creditor of the debtor” and thus in
violation of section 39-23.4(a)(1). As a result, the Court will deny Defendant Window
World’s Motion for summary judgment on the Tolling Plaintiffs’ fraudulent transfer
claims under section 39-23.4(a)(1). 	The Court will also deny the Tolling Plaintiffs’
Motion for offensive summary judgment on their claims under section 39-23.4(a)(1)
claims because questions of material fact remain as to Window World’s intent in
making the 2010 Transfer which must be resolved by a jury.
194. 	The Tolling Plaintiffs also move for offensive summary judgment on their
section 	39-23.4(a)(2) 	claims, 	contending 	that 	Window 	World 	“received 	no
consideration for the [trademark] assignment” and that “the record establishes that
after the transfer, [Window World’s] remaining assets were unreasonably small for
its business.”308 	More specifically, the Tolling Plaintiffs point out that the 2010
Transfer “left [Window World] with approximately $15 million in assets against
307 (Pls.’ Br. Supp. Mot. Partial Summ. J. 87.)
308 (Pls.’ Br. Supp. Mot. Partial Summ. J. 87–88.)

nearly $60 million in liabilities,”309 and assert that “the assignment deprived
[Window World] of the intellectual property it licensed to Plaintiffs and other dealers,
which directly or indirectly generated substantially all of [Window World’s] revenue,
and [that] WWI may terminate [Window World’s] license to the marks without cause
on ten days’ written notice.”310
195. 	Defendants contend that the Tolling Plaintiffs’ section 39-23.4(a)(2) claims
fail because Window World received valuable “consideration – protection of the
marks, which also benefitted Plaintiffs[, and Window World’s] success since 2010,
shown by its financials, demonstrate that its assets were always more than sufficient
for its business.”311 As discussed above, a genuine dispute of material fact remains
as to whether Window World received a “reasonably equivalent value in exchange”
for 	the 	2010 	Transfer 	and 	whether 	Window 	World’s 	remaining 	assets 	were
“unreasonably small” at the time of the transfer. 	Accordingly, the Court will deny
both Window World’s and the Tolling Plaintiffs’ Motions for summary judgment on
the Tolling Plaintiffs’ fraudulent transfer claims under section 39-23.4(a)(2).
196. 	The Tolling Plaintiffs lodge their section 39-23.4(a)(1) and (a)(2) claims not
only against Window World, but also against WWI and Ms. Whitworth. 	However,
309 (Pls.’ Br. Supp. Mot. Partial Summ. J. 88; see also Defs.’ 2d App. 2.App.17036 (Window
World, Inc.’s 2008-10 Consolidated Balance Sheets).)
310 (Pls.’ Br. Supp. Mot. Partial Summ. J. 88; see also Volume Seven Pls.’ Exs. Ex. 198 WW-
022498, ECF No. 983.18 (sealed).)
311 	(Defs.’ 	Resp. 	Pls.’ 	Mot. 	Summ. 	J. 	93; 	see 	also Defs.’ 	2d 	App. 	2.App.17374–407,
2.App.17340–73, 	2.App.17282–320, 	2.App.17321–39, 	2.App.17264–81, 	2.App.17243–63,
2.App.17224–42, 2.App.17196–223, 2.App.17167–94 (audited financials 2010-22).)

neither WWI nor Ms. Whitworth are parties to the Tolling Agreement which, as
stated 	above, 	preserves 	the 	Tolling 	Plaintiffs’ 	section 	39-23.4(a)(1) 	and 	(a)(2)
claims.312 In Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC
LEXIS 11, at *26–27 (N.C. Super. Ct. Feb. 11, 2019), this Court held that, due to the
statute of repose, the Tolling Plaintiffs’ claims against WWI and Ms. Whitworth could
only be sustained if these Plaintiffs are able to pierce the corporate veil between Ms.
Whitworth, WWI, and Window World.313 	The Court will thus turn to Plaintiffs’
piercing the corporate veil and alter ego arguments.
J. Piercing the Corporate Veil
197. 	As our Supreme Court has stated, “the doctrine of piercing the corporate veil
is not a theory of liability. 	Rather, it provides an avenue to pursue legal claims
against corporate officers or directors who would otherwise be shielded by the
corporate form.” Green v. Freeman, 367 N.C. 136, 146 (2013).
312 (Defs.’ 2d App. 2.App.17424–38 (“THIS TOLLING AGREEMENT, COVENANT NOT TO
SUE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made by and between
Window World, Inc. on the one hand and [Franchisees] on the other.”) (cleaned up).)
313 In Window World of Baton Rouge, LLC, 2019 NCBC LEXIS 11, at *26–27, this Court
reasoned:
Here, the Lomax and Roland Plaintiffs do not invoke the instrumentality rule
to toll the statute of repose set forth in section 39-23.9 as a matter of equity.
Rather, they allege that the Tolling Agreement operated to toll the statute of
repose against Window World and its alter ego, WWI, as a matter of contract
right. Thus, those cases holding that equitable doctrines cannot toll statutes
of repose have no application on the facts pleaded here. Accordingly, the Court
concludes that the Lomax and Roland Plaintiffs have pleaded sufficient facts
to permit a reasonable factfinder to conclude that the Tolling Agreement tolled
the four-year statute of repose in sections 39-23.9(1) and (2) on their claims
under sections 39-23.4(a)(1) and (a)(2) of the NCUVTA.

198. 	In their Third Amended Complaints, Plaintiffs allege that they are “entitled
to recover from Tammy Whitworth individually and from WWI on each of the causes
of action Plaintiffs assert against [Window World] pursuant to the doctrines of
piercing the corporate veil, mere instrumentality and/or alter ego.”314 	Plaintiffs
assert two theories of recovery. First, Plaintiffs assert Window World and WWI are
alter egos.315 Second, Plaintiffs “allege that they are entitled to pierce the corporate
veil between Tammy Whitworth and [Window World].”316 The Court will address the
parties’ Cross-Motions on these theories of recovery in turn.
199. 	To prove an alter ego relationship between corporate entities, a claimant
must establish three things:
(1) Control, not mere majority or complete stock control, but complete
domination, not only of finances, but of policy and business practice
in respect to the transaction attacked so that the corporate entity as
to this transaction had at the time no separate mind, will or existence
of its own; and
(2) Such control must have been used by the defendant to commit fraud
or wrong, to perpetrate the violation of a statutory or other positive
legal duty, or a dishonest and unjust act in contravention of [a]
plaintiff’s legal rights; and
(3) The aforesaid control and breach of duty must proximately cause the
injury or unjust loss complained of.
Glenn v. Wagner, 313 N.C. 450, 455 (1985).
314 (15-CVS-1 Third Am. Compl. ¶ 163; 15-CVS-2 Third Am. Compl. ¶ 262.)
315 (Pls.’ Br. Supp. Mot. Partial Summ. J. 89–90.)
316 (Pls.’ Br. Supp. Mot. Partial Summ. J. 89.)

200. 	“Evidence upon which [courts of this State] have relied to justify piercing
the corporate veil includes inadequate capitalization, noncompliance with corporate
formalities, lack of a separate corporate identity, excessive fragmentation, siphoning
of funds by the dominant shareholder, nonfunctioning officers and directors, and
absence of corporate records.” Green, 367 N.C. at 145 (citing Glenn, 313 N.C. at 455–
59). 	The “presence or absence of any particular factor . . . is [not] determinative.”
East Mkt. St. Square, Inc. v. Tycorp Pizza IV, Inc., 175 N.C. App. 628, 636 (2006).
“Rather, it is a combination of factors which . . . suggest that the corporate entity
attacked had ‘no separate mind, will or existence of its own’ and was therefore the
‘mere instrumentality or tool’ of the dominant corporation.” Id. “Common ownership
and management, without more, do not equate to the kind of complete domination
needed to show that one entity is another’s puppet.” Harris v. Ten Oaks Mgmt., 2022
NCBC LEXIS 62, at *7 (N.C. Super. Ct. June 20, 2022).
201. 	Plaintiffs contend that they “are entitled to judgment as a matter of law that
[Window World] and WWI are alter egos.”317 	Plaintiffs argue that “the undisputed
evidence establishes that WWI is a mere instrumentality that [Window World]
dominates for its own benefit.”318 	Plaintiffs further contend that the “control”
element is satisfied as (1) WWI, like Window World, is owned entirely by Ms.
317 (Pls.’ Br. Supp. Mot. Partial Summ. J. 89.) Plaintiffs, however, do not move for summary
judgment on the issue of whether they are entitled to pierce the corporate veil between
Tammy Whitworth and Window World.
318 (Pls.’ Br. Supp. Mot. Partial Summ. J. 90.)

Whitworth319; (2) “WWI was created for the sole purpose of holding [Window World’s]
intellectual property,” has never “been capitalized, earned any income, or received
any funds except for money [Window World] provided, and “has no separate existence
from [Window World] at all”; and (3) “WWI has engaged in no business activity other
than [the 2010 Transfer] with [Window World].320
202. 	Additionally, Plaintiffs argue that Window World used WWI, its alleged
alter ego, to defraud Plaintiffs and commit “numerous unfair and deceptive acts
against them.”321 	Specifically, Plaintiffs contend that Window World’s “creation of
WWI for the sole purpose of assigning [Window World’s] most valuable asset – its
intellectual property – to keep it away from Plaintiffs and other creditors reinforced
[Window World’s] scheme to shield itself from liability for its fraud and knowing
violations of franchise-law.”322 	In addition, Plaintiffs assert that Window World’s
“fraudulent transfer to WWI . . . significantly impaired [Window World’s] ability to
pay Plaintiffs’ damages.”323
319 (Volume Two Pls.’ Dep. Excerpts, Ex. XX, Zachary Luffman 2018 Dep. 84:14–15.)
320 (Pls.’ Br. Supp. Mot. Partial Summ. J. 90; see also Volume Two Pls.’ Dep. Excerpts, Ex.
XX, Zachary Luffman 2018 Dep. 34:5–36:21 (“Q: Was that $100,000 capitalization ever paid
to [WWI]? A: No.”), 79:12–82:19 (establishing that WWI only has one checking account, has
never paid salary or other compensation, has never had any employees, has never had any
contracts with any entity other than Window World and its bank, has never distributed
profits or filed individual tax returns, has only filed tax returns as part of Tammy
Whitworth’s personal return), 84:14–15 (establishing that Tammy Whitworth owns WWI),
87:6–11 (establishing that WWI has never had any officers).)
321 (Pls.’ Br. Supp. Mot. Partial Summ. J. 91.)
322 (Pls.’ Br. Supp. Mot. Partial Summ. J. 91; see supra ¶¶ 188–92 and related notes.)
323 (Pls.’ Br. Supp. Mot. Partial Summ. J. 91; see supra ¶¶ 190–95 and related notes.)

203. 	Defendants seek summary judgment dismissing Plaintiffs’ alter ego claims,
contending that “Plaintiffs fail the first and most crucial element of complete
domination . . . It is undisputed that [Window World] is, and has been since February
2011, controlled by a Board of Directors [and] the [Window World] Board exercises no
control over [WWI], nor does [WWI’s] sole member control [Window World].”324
Defendants further contend that Plaintiffs fail to satisfy the complete-domination
element 	because 	“Plaintiffs 	have 	shown 	no 	evidence 	of 	undercapitalization 	of
[Window 	World], 	disregard of 	corporate 	formalities by 	either entity, 	excessive
fragmentation, siphoning of funds or absence of corporate records.”325 	Defendants
also argue that Plaintiffs have failed to satisfy the second element of their alter ego
claim as “Plaintiffs fail to show that creating a separate holding company to hold IP
is improper . . . [or] that [Window World] used [WWI] to defraud them.”326 	Finally,
Defendants 	contend 	that 	Plaintiffs 	have 	“cite[d] 	no 	evidence 	to 	support 	their
statement that the transfer ‘significantly impaired’ [Window World’s] ability to pay
damages.”327
324 (Defs.’ Resp. Pls.’ Mot. Summ. J. 95–96.)
325 (Defs.’ Resp. Pls.’ Mot. Summ. J. 96.)
326 (Defs.’ Resp. Pls.’ Mot. Summ. J. 96–97.)
327 (Defs.’ Resp. Pls.’ Mot. Summ. J. 97.)

204. 	To support their argument, Defendants have produced substantial evidence
that (1) WWI was created to protect Window World from outside agencies328; (2) WWI
was created to make a potential future sale easier329; and (3) the idea of transferring
the trademarks to a separate entity “arose years earlier, during a discussion
with . . . a Greensboro lawyer, regarding ways to handle Leon [Whitworth’s] excess-
compensation issues during an IRS audit.”330
205. 	Although piercing the corporate veil “is a strong step: Like lightning, it is
rare and severe,” Harris, 2022 NCBC LEXIS 62, at *10 (quoting State ex rel. Cooper
v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 439 (2008)), the Court finds that
genuine issues of material fact remain concerning whether (1) Window World had
“complete domination” of WWI, particularly at the time of the contested 2010
Transfer since Window World’s Board was not in existence at this time; (2) whether
such control, if it existed, was used by Window World to commit fraud or wrong; and
(3) whether Plaintiffs suffered injury.
328 (Defs.’ 1st App. 1.App.10675 (“Q: And when you say the transference of Window World,
Inc.’s valuable intellectual property would protect it, would it protect it from claims like
lawsuits made by licensees or franchisees? A: Yeah, protect it from any outside agencies.”)
(Howard Blair Ingle).)
329 (Defs.’ 1st App. 1.App.10675 (“Q: And is it correct that it ultimately was Tammy
Whitworth’s decision to transfer Window World, Inc.’s intellectual property to Window World
International, LLC, for the purpose of protecting it against potential claimants? A: For the
purpose of protecting it and then if there’s any opportunity for sale down the road it would
be a much easier transaction, I would say.”) (Howard Blair Ingle).)
330 (Defs.’ Resp. Pls.’ Mot. Summ. J. 96–97; see also Defs.’ 1st App. 1.App.15109–10, 15200–
01 (Randy Blackburn); Appendix 4 Exs. Summ. J. Mot. 4.App.24705 [hereinafter “Defs.’ 4th
App.”], ECF No. 1009 (sealed).)

206. 	Accordingly, the Court will deny the parties’ Cross-Motions on Plaintiffs’
claim that Window World and WWI are alter egos. Furthermore, because Plaintiffs
have produced sufficient evidence to sustain their claim that Window World and WWI
are alter egos at the summary judgment stage, the Court will also deny the parties’
Cross-Motions 	on 	the 	Tolling 	Plaintiffs’ 	claims 	against 	WWI 	under 	sections
39-23.4(a)(1) and (a)(2).
207. 	Plaintiffs next contend that they are entitled to pierce the corporate veil
between Tammy Whitworth and Window World, asserting that:
[d]uring the period of Tammy Whitworth’s sole ownership of [Window
World’s] stock, her control over [Window World] . . . permeated the
entire company and extended from [Window World’s] finances to its
policy making and business practices. Accordingly, [Window World] and
its affiliates and subsidiaries have and have had no separate mind, will,
or existence of their own apart from Tammy Whitworth or from the
affiliated Window World entities she likewise controls.331
208. 	Under the instrumentality test adopted by our Supreme Court, “if the
plaintiff is able to pierce the corporate veil, the shareholder and the corporation are
shown to be . . . ‘one and the same.’ ” 	Ridgeway Brands Mfg., LLC, 362 N.C. at 441
(citing Henderson v. Sec. Mortgage & Fin. Co., 273 N.C. 253, 260 (1968)). 	To apply
the instrumentality rule, Plaintiffs must prove three elements: “(1) stockholders’
control of the corporation amounting to ‘complete domination’ with respect to the
transaction at issue; (2) stockholders’ use of this control to commit a wrong, or to
violate a statutory or other duty in contravention of the other party’s rights; and (3)
331 (15-CVS-1 Third Am. Compl. ¶ 166; 15-CVS-2 Third Am. Compl. ¶ 265.)

this wrong or breach of duty must be the proximate cause of the injury to the other
party.” Id. (citing Glenn, 313 N.C. at 454–55).
209. 	Defendants move for summary judgment on Plaintiffs’ veil-piercing claim
against Ms. Whitworth, arguing that she “lacked the requisite control in general.”332
Defendants contend that Mr. Ingle largely controlled Window World from February
2010 to February 2011, offering evidence that he “handled the financials and kept
them close,”333 he “did not consult with [Ms. Whitworth] about day-to-day activities
or contracts, sharing information on a ‘need-to-know basis,”334 and “the dealers went
to [Mr. Ingle], not [Ms. Whitworth], for assistance.”335 During this time, Defendants
332 (Defs.’ Br. Supp. Mot. Summ. J. 88.)
333 (Defs.’ Br. Supp. Mot. Summ. J. 88; Defs.’ 1st App. 1.App.10856 (“Blair [Ingle] handled
most of – of the financials and – and kept them pretty close”) (Tammy Whitworth); see also
1.App.13931–32 (“Q: Following Todd [Whitworth’s] death and before the formation of the
board of directors, were all major decisions made by Tammy? 	A: There was a transition
period where Blair had pretty much a free rein.”) (Dana Deem); 1.App.12142 (“Q: And when
did you have those discussions? 	A: I can’t tell you a date. 	It would have been after Todd
[Whitworth] died in 2010. 	Q: So – 	A: Because that’s when Blair was making all the
decisions.”) (John Vannoy, Jr.); Defs.’ 2d App. 2.App.16953–54 (Feb. 17, 2011 email chain
where Mr. Ingle provides rebate information to Ms. Whitworth and Board for first time).)
334 (Defs.’ Br. Supp. Mot. Summ. J. 88; see also Defs.’ 1st App. 1.App.10859–60 (“Q: And did
Blair [Ingle] have authority to make agreements on behalf of Window World, Inc. . . . without
your knowledge? 	A: I believe so, as far as the bylaws. 	There were certain things that he
could do . . . Q: Did he consult with you . . . about the day-to-day activities, formation of
agreements, the payment for special C pricing, things of that nature? Not – no.”), 10889–90
(“After I got my kids back in school – or our kids back in school, I started going to the office,
and Blair [Ingle] was – I got the feeling he didn’t want me around. I felt like I got information
on a need-to-know basis.”) (Tammy Whitworth); 1.App.14162–63 (“Q: And then after Todd
[Whitworth] passed away, who was – who ran things? A: Tammy [Whitworth] was the CEO.
Blair [Ingle] was the president, and that’s who I got my day-to-day direction from. Q: Who?
A: Blair . . . That’s who I got my day-to-day direction from.”) (Mark Bumgarner).)
335 (Defs.’ Br. Supp. Mot. Summ. J. 89; see also Defs.’ 1st App. 1.App.15440–41 (“[Blair Ingle]
was the only – before he – before he left, he was the only one that we were all going to.”),
15594–97 (“Q: When Blair left, did things change between the dealers and corporate? 	A:

assert that Ms. Whitworth “wasn’t much involved in the business [as] [h]aving just
lost her husband, she focused her efforts on their children while [Mr.] Ingle ran the
company.”336 Following Mr. Ingle’s termination, Ms. Whitworth “formed a new Board
in February 2011” and, under the 2011 Bylaws, “the business and affairs of the
corporation were managed by the Board.”337 	Defendants offer evidence that the
Board “has remained active ever since, reviewing financials, receiving management
presentations, debating issues, and usually reaching consensus.”338 Defendants also
Yes. . . . We just got used to being without Todd [Whitworth]. We had someone that had been
running the company for a certain amount of years. He was being proactive with everything
that was going on and running day-to-day stuff.”) (Colin Justus); 1.App.2061–62 (“Q: And
what was the concern? A: Well, that Todd had died and most of us felt that Blair [Ingle] was
doing a pretty decent job and they had just fired him and we were worried about who was
going to run the company.”) (James Lomax, III).)
336 (Defs.’ Br. Supp. Mot. Summ. J. 88; Defs.’ 1st App. 1.App.10744 (“Well, for the first yearish,
I was not heavily involved in the business. I was a recent widow, I had our three kids, and
inherited a business. So, I needed to kind of get my sea legs under me and – and figure out
where we were and where – how everything worked[.]”), 10805–08 (“Q: You had control? A:
No. Blair [Ingle] had control. Blair was running the company . . . I think you have to think
back to when that was. I had just lost a husband, and I was raising our children, and Blair
was running the company for me. 	So I could have had a say, but I did not have a say.”)
(Tammy Whitworth).)
337 (Defs.’ Br. Supp. Mot. Summ. J. 89; Defs.’ 2d App. 2.App.17414 (“Section 3.7 Powers. The
business and affairs of the corporation shall be managed by the Board of Directors. 	The
Officers shall have the general power to control the day to day operations of the corporation
as set forth hereinafter in Article VI.”) (Bylaws of Window World, Inc., adopted 4 February
2011).)
338 (Defs.’ Br. Supp. Mot. Summ. J. 89; Defs.’ 1st App. 1.App.11627 (discussing length and
frequency of board meetings), 11631–34 (discussing how propositions are adopted and the
Board’s interactions with Ms. Whitworth) (John Vannoy, Jr.); 1.App.12689–94 (“Once again,
it’s a unanimous decision. Whomever – however the board decides to vote is how we move
forward. There’s no individual there that – that I can recall . . . including Tammy, who has
said, ‘This is the way it’s going to be and this is the way it is.’ It’s discussed, the board votes.
The majority wins.”) (discussing the Board’s interactions with Ms. Whitworth) (Bridget
Mathis); 1.App.14016–17 (“We had a monthly board meeting. There was a format used where
basically I would share ideas. 	We’d go over financial numbers, and then we’d bring in the

offer evidence that, in addition to the Board, “a succession of company Presidents
managed the company and made day-to-day decisions.”339
210. 	As to the 2010 Transfer in particular, Defendants offer evidence that
creating WWI was Mr. Ingle’s idea, that Ms. Whitworth “didn’t know what the
documents said and didn’t have a detailed understanding of why [Window World] was
doing it,” and that she “merely signed off on it at Ingle’s advice and request.”340 Based
on this evidence, Defendants argue that Ms. Whitworth: (1) “had nothing to do with
[Window World] signing or renewing the [Sole Source Agreement with AMI]”341; did
not cause Window World “to ‘continue to avoid’ franchise disclosures”342; and “the
rest of the management team, and everybody had a presentation, basically, would take part
in the meeting . . . . Again, there was a lot of interaction, a lot of discussion. 	Again, even
though I had disagreements with particular board members at times, I felt they were active.”)
(Dana Deem).)
339 (Defs.’ Br. Supp. Mot. Summ. J. 89; Defs.’ 1st App. 1.App.13721–22 (“Q: How long were
you president? A: If we go from April of ’11 to January of ’15, that’s almost four years.”) (Dana
Deem); 1.App.14232–33 (“Q: What did they tell you your duties are? A: Lead and manage
the everyday operations of the organization.”) (Steve Kamody).)
340 (Defs.’ Br. Supp. Mot. Summ. J. 90; see also Defs.’ 1st App. 1.App.10338 (“Q: It’s fair to
say . . . that it was your 	idea to form Window World International and pursue the
assignment, correct? 	A: I was the first one to suggest it.”), 10674 (Howard Blair Ingle);
1.App.11350 (“Q: What is Window World International? A: It’s something Blair [Ingle] came
up with.”), 11437, 11119–21 (“Blair set up Window World International and asked me to sign
the paper.”), 10810, 10813 (“I didn’t create [WWI]. I signed the document that was put before
me, 	and 	I 	was 	advised 	to 	do 	that.”), 	10767, 	10829–30, 	11491 	(“The 	purpose, 	my
understanding, the purpose of Window World International – and it had been discussed
before, before Todd passed away, so I didn’t have a whole lot of knowledge about it. And my
understanding is, that’s just what businesses do as – we have a responsibility to protect our
licensees and franchisees, and that is one of the ways to do that is to protect the trademark.”)
(Tammy Whitworth).)
341 (Defs.’ Br. Supp. Mot. Summ. J. 92.)
342 (Defs.’ Br. Supp. Mot. Summ. J. 92.)

pricing structure [including C pricing] was already in place when [Ms. Whitworth]
inherited the shares.”343
211. 	As noted above, veil piercing is an “extraordinary equitable remedy.”
Harris, 2022 NCBC LEXIS 62, at *6 (quoting Charter Commc’ns Operating, LLC v.
Optymyze, LLC No.2018-0865-JTL, 2021 Del. Ch. LEXIS 4, at *73 (Del. Ch. Jan. 4,
2021). Here, Plaintiffs have failed to produce substantial evidence to show that Ms.
Whitworth had “complete domination” over Window World, WWI, or the disputed
transactions, including C pricing and the 2010 Transfer. 	At the same time,
Defendants and Ms. Whitworth offered undisputed evidence that she did not have
complete domination over Window World, WWI, or the 	disputed transactions.
Accordingly, the Court will grant Defendants’ Motion and dismiss Plaintiffs’ veil-
piercing “claim”344 against Ms. Whitworth.
212. 	In addition, because Plaintiffs have failed to produce substantial evidence
to support their veil-piercing claim against Ms. Whitworth, the Court further finds
that the Tolling Plaintiffs’ claims against Ms. Whitworth under sections 39-23.4(a)(1)
and (a)(2) claims are time-barred by the applicable statute of repose. The Court will
343 (Defs.’ Br. Supp. Mot. Summ. J. 94.)
344 The Court notes that, although Plaintiffs bring their veil piercing contention as a claim,
piercing the corporate veil is a remedy, not a separate cause of action. 	See, e.g., Window
World of Baton Rouge, LLC, 2017 NCBC LEXIS 60, at *14 (“Veil piercing is an equitable
remedy[.]” (citing Ridgeway Brands Mfg., LLC, 362 N.C. at 440)); Insight Health Corp. v.
Marquis Diagnostic Imaging of N.C., LLC, 2018 NCBC LEXIS 56, at *23 (N.C. Super. Ct.
June 5, 2018) (“Veil piercing ‘is not a theory of liability’ but a form of relief that provides an
‘avenue to pursue legal claims against’ those ‘otherwise shielded by the corporate form.’ ”
(quoting Green, 367 N.C. at 146)).

therefore grant Defendants’ Motion on the Tolling Plaintiffs’ claims against Ms.
Whitworth under sections 39-23.4(a)(1) and (a)(2) and deny Plaintiffs’ offensive
Motion for summary judgment against Ms. Whitworth on those same claims.
K. Plaintiffs’ Damages Calculations
213. 	Plaintiffs next contend that they are “entitled to summary judgment
relating to their damages in multiple respects.”345 	Specifically, Plaintiffs maintain
that 	they 	are 	entitled 	to 	summary 	judgment: 	(1) 	“establishing 	as 	undisputed
multiple, related damage calculations made by Plaintiffs’ damages expert, Brent
Bersin, including the total rebates Plaintiffs paid [Window World] on their purchases
from Associated Materials, Inc. (“AMI”)” and (2) “on the amount of damages they are
entitled to recover for [Window World’s] fraud, unfair and deceptive trade practices,
and negligent misrepresentations.”346
214. 	Plaintiffs argue they are entitled to summary judgment establishing the
following damages amounts:
(1) A total of $40,306,114 (not including interest, trebling, or attorneys’
fees) equal to the difference between the rebates WW fraudulently
promised Plaintiffs they would pay, and fraudulently concealed that
Plaintiffs were not paying, and the rebates Plaintiffs actually paid;347
(2) A total of $37,565,225 (not including interest, trebling, or attorneys’
fees) equal to the amount of undisclosed rebates on 	that
Plaintiffs unknowingly paid because WW concealed those rebates and
because WW concealed the existence of a separate pricing tier for dealers
345 (Pls.’ Br. Supp. Mot. Partial Summ. J. 92.)
346 (Pls.’ Mot. 6.)
347 (Pls.’ Mot. 6; Bersin Report at 6; see also Bersin Schedules; Bersin Aff. at ¶ 6.)

who did not pay rebates on 	, in contravention of WW’s
representations that Plaintiffs were receiving best pricing;348 and
(3) A total of $10,155,554 (not including interest, trebling, or attorneys’
fees) equal to the amount of excess rebates Plaintiffs paid as a result of
WW’s undisclosed and misrepresented 2009 rebate increases.349
215. 	Plaintiffs contend that summary judgment on their damages claims is
warranted 	because 	“Defendants 	offer 	no 	legitimate 	rebuttal 	to 	these
calculations . . .[,] do not identify any specific errors in Bersin’s . . . calculations[,] and
concede they have no basis to dispute the AMI data on which [some of] Bersin’s
calculations rest.”350 Further, Plaintiffs assert that Defendants do not “provide any
alternative calculations that they claim more accurately reflect the amounts of
rebates Plaintiffs paid above what they were promised.”351
216. 	Defendants 	argue 	that 	Plaintiffs’ 	Motion 	should 	be 	denied 	because
“Plaintiffs ignore both the procedural posture and the burden of proof. 	[Window
World] is not required to prove Plaintiffs’ damages for them. 	Plaintiffs must prove
their own damages.”352
217. 	More granularly, Defendants argue that Plaintiffs’ Motion should be denied
as to Plaintiffs’ calculation for alleged rebate overpayments because the calculation
348 (Pls.’ Mot. 6; see also Bersin Report.)
349 (Pls.’ Mot. 6; see also Bersin Report.)
350 (Pls.’ Br. Supp. Mot. Partial Summ. J. 93.)
351 (Pls.’ Br. Supp. Mot. Partial Summ. J. 93.)
352 (Defs.’ Resp. Pls.’ Mot. Summ. J. 47.)

“assumes a hypothetical world where Plaintiffs were all promised the same thing: a
$10 window rebate for B-tier dealers, a $15 window rebate for A-tier dealers, and no
rebates 	[and] Plaintiffs’ own evidence lays waste to that assumption.”353
The Court agrees. 	As discussed above, some Plaintiffs testified that Window World
promised rebates of $5 or $10 per window and others testified that no representations
were made regarding rebate amounts prior to them becoming Window World
storeowners.354 As such, Plaintiffs have not met their burden for offensive summary
judgment to show that there are “no gaps in [their] proof [concerning rebate
overpayment damages], that no inferences inconsistent with [their] recovery arise
from the evidence.” Brooks, 48 N.C. App. at 728. Accordingly, Plaintiffs’ Motion for
offensive summary judgment on its alleged rebate overpayment damages is denied.
218. 	Defendants also contend that Plaintiffs’ damages calculation for alleged best
pricing 	misrepresentations 	is 	incorrect 	because 	“Plaintiffs 	have 	not 	calculated
damages specific to any particular Plaintiff.”355 	Plaintiffs argue that their best
pricing damages is “equal to the amount of undisclosed rebates on window
that Plaintiffs unknowingly paid because [Window World] concealed the existence of
a separate pricing tier for dealers who did not pay rebates on window 	, in
contravention of [Window World’s] representations that Plaintiffs were receiving best
353 (Defs.’ Resp. Pls.’ Mot. Summ. J. 47.)
354 (See supra ¶¶ 43–60 and related notes.)
355 (Defs.’ Resp. Pls.’ Mot. Summ. J. 61–62.)

pricing.”356 	However, as detailed earlier in this order and opinion, Plaintiffs’
testimony varies significantly concerning the rebate representations that were made
and 	how 	different 	Plaintiffs 	interpreted 	and 	understood 	Window 	World’s
representations regarding “best pricing.”357 	Thus, the Court again finds that
Plaintiffs have not met their burden to demonstrate that no genuine issues of
material fact remain as to the amount of best pricing damages. 	The Court will
therefore deny Plaintiffs’ Motion for offensive summary judgment on these damages
as well.
219. 	Finally, and also as discussed earlier in this order and opinion, the Court
has concluded that Plaintiffs have failed to offer substantial evidence that they were
injured by the 2009 rebate increases and that Plaintiffs’ claims based on those rebates
should be dismissed.358 In light of this failure of proof, the Court will likewise deny
Plaintiffs’ motion for summary judgment determining Plaintiffs’ damages for Window
World’s “undisclosed and misrepresented 2009 rebate increases.”359
220. 	Based on the above, the Court denies Plaintiffs’ Motion for offensive
summary judgment on each of Plaintiffs’ requested damages determinations.
L. Defendants’ Counterclaims
356 (Pls.’ Mot. 7.)
357 (See supra ¶¶ 43–78 and related notes.)
358 (See supra ¶¶ 99–102 and related notes.)
359 (See supra ¶¶ 99–102 and related notes.)

221. 	Plaintiffs seek summary judgment on each of Defendants’ counterclaims
(the “Counterclaims”),360 which seek a declaration that the Licensing Agreements
applicable to each Plaintiff group are valid, that certain terms are enforceable and
should be enforced, and that any modification of the Licensing Agreements is invalid.
222. 	Plaintiffs contend they are entitled to summary judgment on Defendants’
Counterclaims because “[e]ach such counterclaim necessarily depends on the validity
and enforceability of the agreements for which [Window World] seeks declarations.”
Plaintiffs further assert that “[b]ecause [the Licensing Agreements] all are void due
to [Window World’s] fraudulent inducement, [Window World] cannot enforce any
alleged rights under those documents.”361 As set forth at length above, however, the
Court has found that genuine issues of material fact remain and preclude summary
judgment for any party on the validity of the Licensing Agreements. Accordingly, the
Court 	will 	deny 	Plaintiffs’ 	Motion 	for 	summary 	judgment 	on 	Defendants’
Counterclaims.
M. Window World’s and Ms. Whitworth’s Additional Defenses
223. 	Last, Plaintiffs seek summary judgment on: (1) subparagraph (d) of Window
World’s Fifth Additional Defense; (2) Window World’s Sixth Additional Defense; (3)
subparagraph 5 of Tammy Whitworth’s Seventh Additional Defense; and (4) Tammy
Whitworth’s Eighth Additional Defense.362
360 (Baton Rouge Answer ¶¶ 41–75; St. Louis Answer ¶¶ 51–95.)
361 (Pls.’ Br. Supp. Mot. Partial Summ. J. 95–96.)
362 (Pls.’ Mot. 7–8.)

224. 	First, Plaintiffs seek summary judgment as to the portion of Window
World’s Fifth Additional Defense and Whitworth’s Seventh Additional Defense which
asserts that “[t]he Tolling Agreement should be disregarded for purposes of the
statute of limitations and/or repose to the extent, if any, that Plaintiffs are precluded
from 	enforcing 	the 	Tolling 	Agreement 	by 	their 	own 	breach 	of 	the 	Tolling
Agreement.”363 Plaintiffs assert that no evidence appears of record that the Roland
Plaintiffs 	or the 	Lomax/Gillette 	Plaintiffs 	breached the 	Tolling 	Agreements364;
indeed, Plaintiffs offer evidence that Window World’s 30(b)(6) designee admitted that
Window World has no evidence that the Roland or Lomax/Gillette Plaintiffs breached
these agreements.365 	In an apparent concession, Defendants do not respond to
Plaintiffs’ argument in their briefing. Based on its review, the Court concludes that
363 (Baton Rouge Answer ¶ 42; St. Louis Answer ¶ 68; Answer and Alternative Countercl.
Tammy Whitworth ¶ 51 [hereinafter “Whitworth Baton Rouge Answer”], ECF No. 327
(sealed), 331 (redacted); Answer and Alternative Countercl. Tammy Whitworth ¶ 68
[hereinafter “Whitworth St. Louis Answer”], 15-CVS-2 ECF No. 345 (sealed), 349 (redacted).)
These defenses differ in their wording, but they all assert that the Tolling Agreement should
be disregarded to the extent Plaintiffs are precluded from enforcing it due to their breach.
364 (Pls.’ Br. Supp. Mot. Partial Summ. J. 96.)
365 (Pls.’ Br. Supp. Mot. Partial Summ. J. 96; Volume One Pls.’ Dep. Excerpts, Ex. P, Window
World Dep. 152:12–154:5 (“In preparation for this deposition, we reviewed information
available to us. And at this time, Window World is not currently aware of any information.
It’s our understanding, when the defense was filed, we saw the filing of the secret Louisiana
lawsuit as a violation of the confidentiality clause of the tolling agreement. Q: Does Window
World no longer see the filing of the Louisiana lawsuit as a violation of the tolling agreement?
A: No. 	Q: Okay. 	And, again, like I said, this refers to the Lomax plaintiffs. 	The opposite
answer makes the same allegation with regard to the Roland plaintiffs. 	Is Window World
aware of any factual information supporting the assertion that the Roland plaintiffs violated
the confidentiality provisions of the tolling agreement? A: We’re not currently aware of the
information.”).)

summary judgment should be entered for Plaintiffs on these portions of Window
World’s Fifth Additional Defense and Whitworth’s Seventh Additional Defense.
225. 	Plaintiffs 	next 	seek 	summary 	judgment 	as 	to 	Window 	World’s 	Sixth
Additional Defense and Ms. Whitworth’s Eighth Additional Defense, which allege,
similarly, that “Plaintiffs’ claims for breach of contract are barred to the extent they
have 	committed 	their 	own 	antecedent 	breaches 	of 	the 	contracts 	between 	the
parties.”366 	These antecedent breaches were identified in Window World’s 30(b)(6)
deposition as the facts underlying the case captioned as Window World International
v. O’Toole, 21 F.4th 1029 (8th Cir. 2022),367 which include an alleged failure to provide
financial reporting,368 alleged territory infringements by certain franchisees,369
alleged 	unauthorized 	ownership 	changes,370 and 	alleged 	“efforts 	by 	Roland 	to
‘investigate alternative vendor sources’ in 2012 or 2013.”371
366 (Baton Rouge Answer ¶ 42; St. Louis Answer ¶ 56; Whitworth Baton Rouge Answer ¶ 51;
Whitworth St. Louis Answer ¶ 68.)
367 (Volume One Pls.’ Dep. Excerpts, Ex. P, Window World Dep. 155:4–6; Pls.’ Br. Supp. Mot.
Partial Summ. J. 96.)
368 (Volume One Pls.’ Dep. Excerpts, Ex. P, Window World Dep. 154:24–56:7; Pls.’ Br. Supp.
Mot. Partial Summ. J. 97.)
369 (Volume One Pls.’ Dep. Excerpts, Ex. P, Window World Dep. 156:8–59:7; Pls.’ Br. Supp.
Mot. Partial Summ. J. 97.)
370 (Volume One Pls.’ Dep. Excerpts, Ex. P, Window World Dep. 160:11–61:9.; Pls.’ Br. Supp.
Mot. Partial Summ. J. 97.)
371 (Volume One Pls.’ Dep. Excerpts, Ex. P, Window World Dep. 161:10–62:8; Pls.’ Br. Supp.
Mot. Partial Summ. J. 97.)

226. 	Plaintiffs assert that these defenses should be dismissed because Plaintiffs’
alleged breaches either “(1) occurred after the filing of the lawsuit, or (2) do not
actually breach any licensing agreement provision, or both.”372 The Court agrees.
227. 	The O’Toole litigation arose from actions occurring in 2019.373 	Neither
Window World nor Ms. Whitworth has identified in the actions pending before this
Court any failure to provide financial reporting prior to 2019. The evidence of record
shows that any alleged territory infringements or ownership changes likewise
occurred well after the filing of this action.374 Furthermore, neither Window World
nor Ms. Whitworth offers any evidence that the Roland Plaintiffs purchased products
from 	any 	alternative 	suppliers, 	or 	explain 	how 	investigation 	into 	alternative
suppliers violates the Licensing Agreements. 	Perhaps not surprisingly, Window
World and Ms. Whitworth do not address Plaintiffs’ arguments in their briefing.
Accordingly, after careful review, the Court concludes that Plaintiffs are entitled to
summary judgment dismissing Window World’s Sixth Additional Defense and Ms.
Whitworth’s Eighth Additional Defense.
372 (Pls.’ Br. Supp. Mot. Partial Summ. J. 97.)
373 (See Window World Int’l v. O’Toole, 21 F. 4th 1029 (8th Cir. 2002) (dismissing appeal from
2020 WL 7041814 (E.D. Mo. Nov. 30, 2010).)
374 (See Volume One Pls.’ Dep. Excerpts, Ex. P, Window World Dep. 160:11–61:9; Volume One
Pls.’ Exs. Ex. 19-4, ¶ 10 (“I understand that [Window World] contends that a breach occurred
due to the tragic passing of Jeremy Shumate. Mr. Shumate died on July 30, 2022.”) (Affidavit
of Tommy Jones), Ex. 19-7, ¶ 8 (“I understand that [Window World] has contended that a
breach occurred due to my divorce. My divorce became final on May 25, 2022.”) (Affidavit of
Christina Rose), ECF No. 977.20.)

V.
CONCLUSION
228. 	WHEREFORE, for the reasons set forth above, the Court GRANTS in
part and DENIES in part the Motions and hereby ORDERS as follows:
a. 	Regarding Plaintiffs’ Cause of Action for Fraud, Defendants’ Motion is
GRANTED as to:
i. 	Plaintiffs Window World of Phoenix, LLC, James Ballard, Toni
Ballard, Window World of Central PA, LLC, Kenneth Ford, Jr.,
Angell Wesner-Ford, World of Windows of Denver, LLC, Rick
Rose, Christina Rose, Window World of Lexington, Inc., Tommy
Jones, and Jeremy Shumate’s fraud claims based on Window
World’s 	alleged 	rebate 	misrepresentations 	(the 	Rebate
Misrepresentation 	Theory), 	and 	these 	claims 	are 	hereby
DISMISSED with prejudice.
ii. 	Plaintiffs Window World of Lexington, Inc., Tommy Jones, and
Jeremy Shumate’s fraud claims based on Window World’s alleged
best pricing promise (the Best Pricing Theory), and these claims
are hereby DISMISSED with prejudice.
iii. 	Plaintiffs B&E Investors, Inc., Window World of North Atlanta,
Inc., Window World of Central Alabama, Inc., Michael Edwards,
and Melissa Edwards’ fraud claims under the Best Pricing Theory

based on C pricing, and these claims are hereby DISMISSED
with prejudice.
iv. 	Plaintiffs’ 	fraud 	claims 	based 	on 	Window 	World’s 	alleged
misrepresentation of franchise law (the Franchise Disclaimer
Theory), 	and 	these 	claims 	are 	hereby 	DISMISSED 	with
prejudice.
v. 	Plaintiffs’ fraud claims based on Window World’s 2009 Price
Increases, and these claims are DISMISSED with prejudice.
b. 	Defendants’ Motion is GRANTED with respect to Plaintiffs’ claims for
negligent 	misrepresentation, 	and 	Plaintiffs’ 	claims 	are 	hereby
DISMISSED with prejudice.
c. 	Defendants’ Motion is GRANTED with respect to Plaintiffs’ claims for
declaratory judgment that the Licensing Agreements are null, invalid,
and unenforceable 	for illegality and as against public policy, 	and
Plaintiffs’ claims are hereby DISMISSED with prejudice.
d. 	Defendants’ Motion is GRANTED with respect to Plaintiff Window
World of Lexington, Inc., Tommy Jones, and Jeremy Shumate’s claims
for breach of contract and breach of the covenant of good faith and fair
dealing based on Window World’s alleged best pricing promise as to non-
licensees, and these Plaintiffs’ claims are hereby DISMISSED with
prejudice.

e. 	Defendants’ Motion and Whitworth’s Motion are GRANTED as to
Plaintiffs’ unfair and deceptive trade practices claims under N.C.G.S.
§ 75-1.1, 	and 	Plaintiffs’ 	claims 	are 	hereby 	DISMISSED 	with
prejudice.
f. 	Defendants’ Motion and Whitworth’s Motion are GRANTED as to
Plaintiffs’ veil-piercing “claims” against Ms. Whitworth, and those
“claims” are hereby DISMISSED with prejudice.
g. 	Defendants’ Motion and WWI’s Motion are GRANTED as to the Non-
Tolling Plaintiffs’ fraudulent transfer claims under the NCUVTA, and
those claims are hereby DISMISSED with prejudice.
h. Defendants’ 	Motion 	is 	GRANTED 	as 	to 	the 	Tolling 	Plaintiffs’
fraudulent transfer claims under the NCUVTA against Ms. Whitworth,
and those claims are hereby DISMISSED with prejudice.
i. 	Plaintiffs’ Motion is GRANTED as to that portion of Window World’s
Fifth Additional Defense and Ms. Whitworth’s Seventh Additional
Defense alleging breach of the Tolling Agreement and as to Window
World’s 	Sixth 	Additional 	Defense 	and Tammy’s 	Eighth 	Additional
Defense in their entirety, and those Additional Defenses are hereby
DISMISSED with prejudice.
j. 	Except as expressly granted above, the Motions are hereby DENIED,
and all remaining claims, counterclaims, and defenses shall proceed to
trial.

SO ORDERED, this the 26th day of November, 2024.375
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge
375 This Order and Opinion was originally filed under seal on 26 November 2024. This public
version of the Order and Opinion is being filed on 6 December 2024. To avoid confusion in
the event of an appeal, the Court has elected to state the filing date of the public version of
the Order and Opinion as 26 November 2024.