COMPASS TAX SERVS. LLC v. KARKI, 2024 NCBC 34

STATE OF NORTH CAROLINA
ORANGE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22CVS001021-670
COMPASS TAX SERVICES LLC;
ASHOK LAMICHHANE; and AMAR
SHRESTHA,
Plaintiffs,
v.
RABINDRA KARKI,
Defendant.
ORDER AND OPINION ON CROSS-
MOTIONS FOR SUMMARY
JUDGMENT
1. 	THIS MATTER is before the Court on the 17 October 2023 filing of
Defendant’s Motion for Summary Judgment (“Defendant’s Motion”), (ECF No. 41
[“Def.’s 	Mot.”]), 	and 	Plaintiffs’ 	Motion 	for 	Partial 	Summary 	Judgment 	on 	the
Counterclaims by Defendant Rabindra Karki (“Plaintiffs’ Motion”; together, the
“Motions”), (ECF No. 45 [“Pls.’ Mot.”]).
2. 	Pursuant to Rule 56 of the North Carolina Rules of Civil Procedure (the
“Rule(s)”), Defendant Rabindra Karki (“Karki”) seeks summary judgment in his favor
on Plaintiffs’ two remaining claims asserted against him, as well as affirmative
summary judgment on his counterclaim for breach of contract. 	(Def.’s Mot. 1.)
Plaintiffs seek summary judgment in their favor on Karki’s counterclaims for fraud,
breach 	of 	fiduciary 	duty, 	constructive 	fraud, 	and 	unfair 	and 	deceptive 	trade
practices.1 (Pls.’ Mot. 1.)
1 Plaintiffs initially sought summary judgment on Karki’s counterclaim for civil conspiracy.
(Pls.’ Mot. 1.) 	However, Karki subsequently voluntarily dismissed that claim, mooting
Plaintiffs’ Motion in part as to this claim. (See ECF No. 51.)
Compass Tax Servs. LLC v. Karki, 2024 NCBC 34.

3. 	For the reasons set forth herein, the Court GRANTS in part and DENIES
in part the Motions.
Kennon Craver, PLLC, by Henry Sappenfield, for Plaintiffs Compass Tax
Services, LLC, Ashok Lamichhane, and Amar Shrestha.
Morningstar Law Group, by Jeffrey L. Roether and Kenzie M. Rakes, for
Defendant Rabindra Karki.
Robinson, Judge.
I. 	INTRODUCTION
4. 	This dispute arises out of Karki’s sale of five Liberty Tax franchise locations
to Plaintiffs. 	Plaintiffs contend that Karki failed to transfer the five Liberty Tax
franchise locations pursuant to the operative sales agreement. 	Karki, however,
contends that Plaintiffs failed to fulfill their payment obligations under the operative
sale agreement. Karki also contends that Plaintiff Ashok Lamichhane made material
misrepresentations regarding his intent when entering into the operative sale
agreement and breached his fiduciary duty as majority owner and manager of
Compass Tax Services, LLC.
II. 	FACTUAL BACKGROUND
5. 	The Court does not make findings of fact when ruling on a motion for
summary judgment. 	“[T]o provide context for its ruling, the court may state either
those facts that it believes are not in material dispute or those facts on which a
material dispute forecloses summary adjudication.” Ehmann v. Medflow, Inc., 2017
NCBC LEXIS 88, at *6 (N.C. Super. Ct. Sept. 26, 2017); see also Hyde Ins. Agency,
Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142 (1975) (encouraging the trial court

to articulate a summary of the relevant evidence of record to provide context for the
claims and motion(s)).
A. 	The Parties
6. 	Plaintiff Compass Tax Services, LLC (“Compass Tax”) is a North Carolina
limited liability company organized on 16 July 2021 for the purpose of purchasing
and operating five Liberty Tax franchises. 	(Am. Compl. ¶¶ 5, 7, ECF No. 20 [“Am.
Compl.”].)2 	The 	Liberty 	Tax 	franchises, 	including 	their 	respective 	business
territories, are located at the following addresses: (1) 3825 S. Roxboro St. #136,
Durham, North Carolina 27713 (Territory #027); (2) 247 Grady Height, Cary, North
Carolina 27513 (Territory #003); (3) 4456 Fayetteville Road, Raleigh, North Carolina
27603 	(Territory 	#029); 	(4) 501 Raleigh 	Road, 	Angier, 	North 	Carolina 	27501
(Territory 	#0212); 	and 	(5) 3808 Guess 	Road, 	Durham, 	North 	Carolina 	27705
(Territory #008), (together, the “Liberty Tax Franchises”). 	(Index Exs. Supp. Def.’s
Mot. Ex. 9 at ¶ 5, ECF No. 42.9 [“Sept. Agt.”].)
7. 	Plaintiff 	Ashok 	Lamichhane 	(“Lamichhane”) 	is 	a 	resident 	of 	Orange
County, North Carolina. (Am. Compl. ¶ 2.) Lamichhane is a member and manager
of Compass Tax with a seventy-five percent (75%) membership interest in it. 	(Am.
Compl. ¶¶ 5–6.)
2 The Court recites, but does not rely upon, certain unverified allegations in the Amended
Complaint to provide context for the material allegations on which the parties’ claims are
based.

8. 	Plaintiff Amar Shrestha (“Shrestha”; with Compass Tax and Lamichhane,
“Plaintiffs”) is a resident of Durham County, North Carolina, with a fifteen percent
(15%) membership interest in Compass Tax. (Am. Compl. ¶¶ 3, 5–6.)
9. 	Defendant Karki is a resident of Wake County, North Carolina, with a ten
percent (10%) membership interest in Compass Tax. (Am. Compl. ¶¶ 4–6.)
10. 	Lamichhane and Karki met through a mutual friend in the 1990s while
living in Nepal. 	(Index Exs. Supp. Def.’s Mot. Ex. 1 at 36:9–22, ECF No. 42.1
[“Lamichhane Dep.”].) 	Lamichhane met Shrestha in Nepal around the same time.
(Lamichhane Dep. 51:15–16.)
B. 	Beginning of the Parties’ Business Relationship
11. 	For approximately twenty years, Karki has “directly and indirectly owned
tax-preparation businesses in central North Carolina that operate as Liberty Tax
franchises[.]” (Index Exs. Supp. Def.’s Mot. Ex. 4 at ¶ 2, ECF No. 42.4 [“Karki Aff.”].)
12. 	In early 2021, Lamichhane and Karki began discussing the possibility of
Lamichhane purchasing the Liberty Tax Franchises from Karki. 	(Lamichhane
Dep. 39:3–21, 40:10–23.) 	Around that time, Lamichhane informed Shrestha of the
same opportunity, and Shrestha notified Lamichhane that “he wanted to be part of
the opportunity.” (Lamichhane Dep. 51:20–52:2.)
13. 	While their discussions continued regarding the contemplated purchase of
the Liberty Tax Franchises, Karki provided by text message to Lamichhane the gross
sales 	figures 	for 	the 	Liberty 	Tax 	Franchises 	between 	March 	and 	May 	2021.
(Lamichhane Dep. 45:5–9; see Index Exs. Supp. Def.’s Mot. Ex. 5, ECF No. 42.5

(providing text messages between Karki and Lamichhane with gross figures).)
However, it was Lamichhane’s understanding that the numbers provided by Karki
represented the “net income” of the Liberty Tax Franchises, not the gross income.
(Lamichhane Dep. 45:16–17.)
14. 	On 14 May 2021, Shrestha and Karki signed an agreement for the sale of
the Liberty Tax Franchises (the “May Agreement”). 	(Index Exs. Supp. Def.’s Mot.
Ex. 6, ECF No. 42.6 [“May Agt.”].) 	Lamichhane was not a party to the May
Agreement. 	(See May Agt.) 	The May Agreement reflected a purchase price of
$720,000.00 for the Liberty Tax Franchises. (May Agt. 2.)
15. 	Although Lamichhane did not sign the May Agreement, in July of 2021 he
began advertising the Liberty Tax Franchises on Google and operating four of the five
Liberty Tax Franchises by appointment only. (Lamichhane Dep. 43:2–17.)
C. 	The September Purchase Sale Agreement and Related Conduct
16. 	On 15 September 2021, the Operating Agreement for Compass Tax (the
“Operating Agreement”) was signed by Lamichhane, Shrestha, and Karki. 	(Index
Exs. Supp. Def.’s Mot. Ex. 8, ECF No. 42.8 [“Op. Agt.”].)
17. 	That same day, and after renegotiating the purchase price as previously
contemplated in the May Agreement, (see Index Exs. Supp. Def.’s Mot. Ex. 2 at 23:22–
24:1, ECF No. 42.2 [“Shrestha Dep.”]; Index Add. Exs. Opp’n Pls.’ Mot. Ex. 1 at 131:2–
132:22, ECF No. 49.1), Lamichhane, Shrestha, and Karki signed the Purchase Sale
Agreement (the “September Agreement”), which governs Plaintiffs’ purchase of the
Liberty Tax Franchises, (see generally Sept. Agt.).

18. 	After signing the September Agreement, Lamichhane had limited access to
the Liberty Tax server as the general manager of Compass Tax, but he continued to
request “financial reporting and the login credentials to access the financial reporting
from the Liberty Tax portal[.]” 	(Compass Tax 30(b)(6) Dep. 95:21–96:1, 96:22–97:5,
ECF No. 43.1.)3 Lamichhane did not receive full access to the financial information
for the Liberty Tax Franchises until 9 December 2021. 	(Lamichhane Dep. 48:4–6,
151:7–10; Compass Tax 30(b)(6) Dep. 96:12–16, ECF No. 43.1) Upon gaining access
to the Liberty Tax system and learning the financial status of the Liberty Tax
Franchises, Lamichhane and Shrestha attempted to renegotiate the purchase price
for the Liberty Tax Franchises but Karki declined to do so. 	(Shrestha Dep. 87:18–
89:19.)
19. 	The September Agreement includes several provisions that are relevant to
this litigation, as set forth in detail below.
1. 	Purchase Price Provision
20. 	In 	the 	September 	Agreement, 	Karki 	is 	identified 	as 	the 	seller 	with
Lamichhane and Shrestha as the buyers. 	(Sept. Agt. 5.) 	However, the preamble of
the September Agreement states that “Compass Tax Services LLC (as represented by
Ashok Lamichhane[,] Amar Shrestha[,] and Rabindra Karki[ ]) agrees to purchase
[the five Liberty Tax Franchises] from Rabindra Karki[.]” (Sept. Agt. ¶ 1.)
3 The Compass Tax 30(b)(6) Deposition was submitted in different filings on the record in this
case. For clarity, the Court does not cite to each place where portions of the deposition appear
in the record, but instead notes in each citation the specific ECF No. in which the portion
cited may be found.

21. 	The September Agreement represents that Plaintiffs would pay Karki a
purchase price of $648,000.00 as follows:
a) $15,000 paid on 5/15/2021 as initial deposit payment when signed the
Contract for the Purchased [sic] and Sales of a Business was signed.
a) [sic] Out of purchase price $179,400 shall be for operating and other
the [sic] expenses and remaining shall be inventory, furniture and
fixture and good will, of which $79,400 shall be paid in cash on 8/24/2021
and $100,000 will be paid in cash on 9/30/2021[.]
b) Remaining balance shall be paid as promissory note in 5 installments
beginning 5/15/2022[.]
c) Compass Tax Services LLC shall pay interest of Bank prime loan plus
1 percent as of 5/10/2021 which is 3.25 + 1=4.25% Annual compound[.]
(Sept. Agt. ¶ 2.)
22. 	In accordance with terms of the September Agreement, the following
payments were made to Karki: (1) the initial deposit of $15,000.00 on 15 May 2021;
(2) a sum of $79,400.00 on 24 August 2021; and (3) a sum of $100,000.00 on
30 September 2021. (Lamichhane Dep. 108:21–109:11; see Sept. Agt. ¶ 2.)
23. 	Payment of the first of five installment payments was thereafter due on
15 May 2022; however, no installment payments were made to Karki. (Lamichhane
Dep. 109:12–16; see Sept. Agt. ¶ 2.b.)
2. 	Management Fee Provisions
24. 	The Operating Agreement states that “[a]ny manager rendering services to
the Company is entitled to compensation proportionate with the value of those
services.” (Op. Agt. ¶ 5.1.)
25. 	However, the September Agreement contains a provision that provides
that:

Lamichhane will be managing member of this entity and he shall be paid
$500 for each franchise territory a month as Management fee for
maintaining the day-to-day business for first year and $1000 for each
franchise territory a month as Management fee for managing the day-
to-day business for second year and $1500 for each franchise territory a
month as Management fee for managing the day-to-day business for
after 2nd year.
(Sept. Agt. ¶ 19.)
26. 	Lamichhane began operating the Liberty Tax Franchises in July 2021.
(Lamichhane Dep. 42:25–43:17.)
27. 	Karki 	understood 	that 	Lamichhane’s 	compensation 	would 	be 	“ ‘for
managing the day-to-day business’ in the amount of $500.00 per month per territory
for the first year, $1,000 per month per territory for the second year, and $1,500 per
month per territory in subsequent years.” 	(Index Add. Exs. Opp’n Pls.’ Mot. Ex. 3
at ¶ 3, ECF No. 49.3 [“Second Karki Aff.”].) 	Karki’s understanding was that the
“management fee would be paid only during the tax season.” (Second Karki Aff. ¶ 3.)
Lamichhane had a similar understanding of the management fee structure. 	(See
Lamichhane Dep. 117:9–118:9.)
28. 	Thereafter, on 21 March 2022, Lamichhane wrote himself a check for
$20,000.00 purportedly for his combined January and February 2022 management
fee. 	(See Index Exs. Opp’n Pls.’ Mot. Ex. 8, ECF No. 49.8.) 	On 23 March 2022,
Lamichhane wrote himself a check from Compass Tax in the amount of $35,000.00,
representing payment of the management fee for 16 July 2021 through 31 December
2021, (see Index Exs. Opp’n Pls.’ Mot. Ex. 7, ECF No. 49.7), followed by more checks
written to “cash,” (see Index Exs. Opp’n Pls.’ Mot. Exs. 9–10, ECF Nos. 49.9–.10). The

evidence demonstrates that Lamichhane used one check written to “cash”, in the
amount of $1,900.00, to pay a contractor for work done on his home. 	(Compass
Tax 30(b)(6) Dep. 183:1–14, ECF No. 49.2.)
29. 	Karki did not “authorize any increase in [Lamichhane’s] management fee
from Compass Tax,” and testified that he did not learn of Lamichhane’s increased
management fee until it was “reflected in Compass Tax[’s] financial records provided”
to him by Lamichhane. (Second Karki Aff. ¶ 4.)
3. 	Obligation to Facilitate the Transfer of Franchise Rights to
Plaintiffs
30. 	The September Agreement provides that the “Buyers and Sellers agree to
execute all documents necessary to conclude this transaction, including, where
applicable, assignments of leases, contract, licenses, operating agreements or other
such documents necessary to fulfill the parties’ intent.” (Sept. Agt. ¶ 7.)
31. 	In 	August 	2021, 	prior 	to 	signing 	the 	September 	Agreement, 	Karki
requested a transfer of the franchise rights for the Liberty Tax Franchises to Compass
Tax through Liberty Tax’s online portal. 	(Karki Aff. ¶ 5.) 	It was Lamichhane’s
understanding that it was in Karki’s control whether the territories were transferred.
(Lamichhane Dep. 240:24–241:6.) 	To facilitate the transfer of the Liberty Tax
Franchises, Lamichhane testified on behalf of Compass Tax that Karki signed and
completed all documents presented to him. (Compass Tax 30(b)(6) Dep. 51:23–52:14,
ECF No. 42.3; see Index Exs. Supp. Def.’s Mot. Ex. 10 at 8, ECF No. 42.10.)
32. 	Plaintiffs contend that, due to Karki’s failure to transfer the Liberty Tax
Franchises, “Compass Tax [ ] was never able to effectively operate the [b]usiness

because it lacked the necessary information and was never given full authority and
control.” (Am. Compl. ¶ 30.) However, Karki contends that as a result of Plaintiffs’
conduct, he has “suffered significant financial losses and sustained other personal
losses[.]” (Answer Am. Compl. & Am. Countercl. ¶ 102, ECF No. 26 [“Countercl.”].)
33. 	As a result of the above-described facts and circumstances, Lamichhane
tendered the remaining business assets back to Karki, (Compass Tax 30(b)(6)
Dep. 178:8–11, ECF No. 43.3), and litigation ensued.
III. 	PROCEDURAL BACKGROUND
34. 	The Court sets forth herein only those portions of the procedural history
relevant to its determination of the Motions.
35. 	Plaintiffs initiated this action on 19 August 2022 with the filing of their
Verified Complaint. (See ECF No. 3.)
36. 	On 16 February 2023, Plaintiffs filed their Amended Complaint as of right,
asserting eleven claims for relief against Karki. (See generally Am. Compl.) Plaintiffs
thereafter voluntarily dismissed nine of those eleven claims without prejudice. (See
ECF No. 31.) Plaintiffs’ two remaining claims are for (1) breach of contract (“Count
One”), (Am. Compl. ¶¶ 43–47); and (2) breach of the duty of good faith and fair dealing
(“Count Two”), (Am. Compl. ¶¶ 48–55).
37. 	On 20 March 2023, Karki filed his Answer to Amended Complaint and
Amended 	Counterclaim, 	asserting 	six 	counterclaims 	against 	Plaintiffs. 	(See
generally Countercl.) Karki thereafter voluntarily dismissed his fifth cause of action
for civil conspiracy without prejudice. 	(See ECF No. 51.) 	Karki’s five remaining

claims are (1) breach of contract (“Counterclaim One”), (Countercl. ¶¶ 103–06);
(2) fraud (“Counterclaim Two”), (Countercl. ¶¶ 107–14); (3) breach of fiduciary duty
(“Counterclaim 	Three”), 	(Countercl. 	¶¶ 115–20); 	(4) 	constructive 	fraud
(“Counterclaim Four”), (Countercl. ¶¶ 121–26); and (5) violations of the North
Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C.G.S. § 75-1.1 et
seq., (“Counterclaim Five”), (Countercl. ¶¶ 131–37).
38. 	The Motions were filed on 17 October 2023. 	(See ECF Nos. 41, 45.)
Following full briefing, the Court held a hearing on the Motions on 24 January 2024
(the “Hearing”), at which all parties were present and represented through counsel.
(See ECF No. 56.)
39. 	The Motions are ripe for resolution.
IV. 	LEGAL STANDARD
40. 	Summary 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.” N.C.G.S. § 1A-1, Rule 56(c). “A ‘genuine issue’ is
one that can be maintained by substantial evidence.” Dobson v. Harris, 352 N.C. 77,
83 (2000) (citation omitted). 	“ ‘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.’ ” Head v. Gould Killian CPA Grp., P.A.,
371 N.C. 2, 8 (2018) (quoting Ussery v. Branch Banking & Tr. Co., 368 N.C. 325, 335
(2015)).

41. 	The moving party bears the burden of showing that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law.
Hensley v. Nat’l Freight Transp., Inc., 193 N.C. App. 561, 563 (2008). 	The movant
may make the required showing by proving that “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 by showing through discovery that the opposing party cannot
produce evidence to support an essential element of her claim.” 	Dobson, 352 N.C.
at 83 (citations omitted).
42. 	“Once the party seeking summary judgment makes the required showing,
the 	burden 	shifts 	to 	the 	nonmoving 	party 	to 	produce 	a 	forecast 	of 	evidence
demonstrating specific facts, as opposed to allegations, showing that he can at least
establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784−85
(2000) (citation omitted). 	The Court must view the evidence in the light most
favorable to the nonmovant. Dobson, 352 N.C. at 83 (citation omitted). However, the
nonmovant
may not rest upon the mere allegations or denials of [their] pleading,
but [their] response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for
trial. 	If [the nonmovant] does not so respond, summary judgment, if
appropriate, shall be entered against [the nonmovant].
N.C.G.S. § 1A-1, Rule 56(e).
V. 	ANALYSIS
43. 	The Court begins its analysis with Plaintiffs’ Motion and concludes with
Defendant’s Motion.

A. 	Plaintiffs’ Motion
44. 	Plaintiffs seek summary judgment on Karki’s Counterclaims Two, Three,
Four, and Five. The Court addresses each counterclaim in turn.
1. 	Karki’s Counterclaim Two: Fraud
45. 	Plaintiffs seek summary judgment on Karki’s fraud claim, arguing that
Karki failed to proffer sufficient evidence of Plaintiffs’ alleged intent to deceive to
support his claim. 	(Pls.’ Memo. Supp. Pls.’ Mot. 8, ECF No. 46 [“Br. Supp. Pls.’
Mot.”].) In Plaintiffs’ view, the evidence does not show that they made a promise to
pay Karki for the Liberty Tax Franchises without the intent to keep that promise.
(Br. Supp. Pls.’ Mot. 8.) 	Plaintiffs contend that the evidence actually demonstrates
that they “intended to take full possession and operated the franchises” at “great
personal burden and expense to themselves.” (Br. Supp. Pls.’ Mot. 8.)
46. 	In 	North 	Carolina, 	the 	“essential 	elements 	of 	actual 	fraud 	are 	well
established: ‘(1) False representation or concealment of a 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.’ ” Forbis v. Neal, 361 N.C. 519, 526–27
(2007) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138 (1974)). 	“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.’ ”
Head, 371 N.C. at 9 (quoting Forbis, 361 N.C. at 527).
47. 	An unfulfilled promise typically cannot serve as the basis for a fraud claim.
Pierce v. Am. Fid. Fire Ins. Co., 240 N.C. 567, 571 (1954). 	However, “a promissory

misrepresentation may constitute actual fraud if the misrepresentation is made with
intent 	to 	deceive 	and 	with 	no 	intent 	to 	comply 	with 	the 	stated 	promise 	or
representation.” Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 87 (1985) (citation
omitted). In each case, the “misrepresentation of the state of the promisor’s mind” is
itself a misrepresentation of an existing fact, giving rise to a fraud claim. Overstreet
v. Brookland, Inc., 52 N.C. App. 444, 452 (1981); accord McKinnon v. CV Indus., 213
N.C. App. 328, 338 (2011). Accordingly, a fraud claim may be based upon promissory
representations, but Karki must also allege facts “from which a court and jury may
reasonably infer that [Plaintiffs] did not intend to carry out such representations
when they were made.” Whitley v. O’Neal, 5 N.C. App. 136, 139 (1969).
48. 	Direct evidence of intent is not required. “Juries often have little access to
direct evidence of a person’s intent and therefore may infer intent from the totality of
the properly admitted evidence.” Hudgins v. Wagoner, 204 N.C. App. 480, 491 (2010).
Circumstantial evidence of intent may include, among other things, a motive to
deceive, close proximity between the promise and the breach, efforts to conceal
nonperformance from the promisee, and a broader pattern of deceit. 	See, e.g.,
Calloway v. Wyatt, 246 N.C. 129, 133–34 (1957); Jones v. Harrelson & Smith
Contractors, LLC, 194 N.C. App. 203, 214–15 (2008), aff’d per curiam, 363 N.C. 371
(2009); Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 481 (2004);
Meekins v. Box, 152 N.C. App. 379, 386–89 (2002); Carver v. Roberts, 78 N.C. App.
511, 513–14 (1985).

49. 	Karki alleges that when Plaintiffs entered into the September Agreement
and the Operating Agreement, Plaintiffs fraudulently concealed that they: (i) “did not
intend to honor their payment obligations” under the September Agreement; (ii) “did
not inten[d] to take transfer of the franchise rights and obligations for the Franchises
or their respective leases and other operational obligations; (iii) did not intend to
abide by Liberty Tax’s policies and regulations; and (iv) intended to use the
Franchises and their associated assets and resources” for their own benefit to the
detriment of Karki. (Countercl. ¶ 108.)
50. 	In 	Plaintiffs’ 	view, 	there 	is 	insufficient 	evidence 	to 	support 	Karki’s
contention that Plaintiffs did not intend to pay for the Liberty Tax Franchises, or that
they “did not intend to take full possession of them.” 	(Br. Supp. Pls.’ Mot. 8.)
Plaintiffs direct the Court to both Lamichhane’s and Shrestha’s testimony detailing
how Plaintiffs began operating the Liberty Tax Franchises, (Br. Supp. Pls.’ Mot. 8
(citing Lamichhane Dep. 161–164; Shrestha Dep. 8, 18, 116)), which Plaintiffs
contend shows that there is “no evidence that Lamichhane and Shrestha had the
intent to deceive at the time they made their putative representations[,]” (Br. Supp.
Pls.’ Mot. 9).
51. 	In response, Karki offers evidence that (1) Plaintiffs did little to no due
diligence into the financial status of the Liberty Tax Franchises before signing the
September Agreement, (Def.’s Br. Opp’n Pls.’ Mot. 8, ECF No. 52 [“Br. Opp. Pls.’
Mot.”]), and (2) Lamichhane repeatedly tried to renegotiate the purchase price for the
Liberty Tax Franchises, despite what he previously agreed to in the September

Agreement, after Lamichhane received additional financial information about the
Liberty Tax Franchises, (Br. Opp. Pls.’ Mot. 9). Karki also argues that he has offered
evidence that Lamichhane “took control of the business assets” of the Liberty Tax
Franchises and “proceeded to earn revenue from those assets,” (Br. Opp. Pls.’ Mot. 9)
(citing Lamichhane Dep. 96–97), all while Lamichhane “paid himself a higher
management fee from Compass Tax than authorized in the September Agreement,”
(Br. Opp. Pls.’ Mot. 10) (citing Compass Tax 30(b)(6) Dep. 30–37, ECF No. 42.3).
52. 	The Court finds the evidence offered by Karki sufficient to raise a genuine
issue of material fact as to whether Lamichhane and Shrestha acted with fraudulent
intent, which is a question for the jury here. See Latta v. Rainey, 202 N.C. App. 587,
600 (2010) (citation omitted) (“Whether the defendant acts with the requisite scienter
for fraud is generally a question of fact for the jury.”); Sports Quest, Inc. v. Dale
Earnhardt, Inc., 2004 NCBC LEXIS 10, at **12–13 (N.C. Super. Ct. Mar. 12, 2004)
(denying summary judgment as to fraud claim because the “motivations behind
[defendant’s] action [were] unclear”).
53. 	Therefore, the Court DENIES Plaintiffs’ Motion as to Karki’s Counterclaim
Two for fraud.
2. 	Karki’s Counterclaims Three and Four: Breach of Fiduciary
Duty and Constructive Fraud
54. 	Plaintiffs request summary judgment on Karki’s Counterclaims Three and
Four, arguing that Karki has not provided sufficient evidence of a breach of any
fiduciary duty owed to him. (Br. Supp. Pls.’ Mot. 9–12.)

55. 	“For a breach of fiduciary duty to exist, there must first be a fiduciary
relationship between the parties.” King v. Bryant, 369 N.C. 451, 464 (2017) (quoting
Dalton v. Camp, 353 N.C. 647, 651 (2001)). 	A claim for constructive fraud likewise
requires a plaintiff to allege facts establishing a confidential or fiduciary relationship.
Gen. Fid. Ins. Co. v. WFT, Inc., 269 N.C. App. 181, 185 (2020) (“Constructive fraud
‘arises where a confidential or fiduciary relationship exists, which has led up to and
surrounded the consummation of the transaction in which defendant is alleged to
have taken advantage of his position of trust to the hurt of plaintiff.’ ” (quoting Forbis,
361 N.C. at 528)).
56. 	Karki 	contends 	that 	Lamichhane 	owed him 	a 	fiduciary 	duty 	as 	the
“majority member and Chief Executive Member of Compass Tax.” (Countercl. ¶ 116.)
Plaintiffs do not challenge Karki’s contention,4 but instead argue that Karki has not
provided sufficient evidence of a breach of the alleged duty. (Br. Supp. Pls.’ Mot. 10–
12.) 	Therefore, the Court turns to whether Karki has presented sufficient evidence
to create a genuine issue of material fact as to Lamichhane’s alleged breach.
57. 	Karki alleges that Lamichhane breached his fiduciary duty by: (i) “failing
to honor his payment obligations” under the September Agreement, (ii) “failing to
take transfer of the franchise rights and obligations for the Franchises or their
respective leases and other operational obligations, (iii) failing to abide by Liberty
Tax’s policies and regulations, and (iv) using the Franchises and their associated
4 Plaintiffs explicitly note that their argument “assum[es] Lamichhane owed Karki a
fiduciary duty[.]” (Br. Supp. Pls.’ Mot. 10.) Since Plaintiffs assume Lamichhane owed a duty
to Karki, the Court, at this stage, will not address the first element further.

assets 	and 	resources” 	for 	his 	own 	benefit 	and 	to 	the 	detriment 	of 	Karki.
(Countercl. ¶ 118.)
58. 	Plaintiffs argue that failing to make payments under the September
Agreement is the basis for a breach of contract claim, but that this conduct “does not
automatically translate to a separate breach of fiduciary duty.” 	(Br. Supp. Pls.’
Mot. 10.) 	Further, Plaintiffs contend that they could not “fail[ ]to take transfer” of
the Liberty Tax Franchises pursuant to the September Agreement because no
transfer was initiated. (Br. Supp. Pls.’ Mot. 10.) Plaintiffs further contend that there
is insufficient evidence that “Lamichhane did not comply with ‘Liberty Tax’s policies
and regulations[,]’ ” as Karki was unable to identify any Liberty Tax policies that
Lamichhane failed to comply with. (Br. Supp. Pls.’ Mot. 11.)
59. 	Here, Karki’s alleged injury and the damages he seeks to recover for his
breach of fiduciary duty and constructive fraud claims, do not arise out of the
purported fiduciary relationship between Karki and Lamichhane. 	Instead, the
wrongful conduct at issue arises as a result of the contractual obligations created by
the September Agreement. 	See, e.g., Haigh v. Superior Ins. Mgmt. Grp., Inc., 2017
NCBC LEXIS 100, at *19 (N.C. Super. Ct. Oct. 24, 2017) (dismissing breach of
fiduciary 	duty 	claim 	where 	alleged 	wrongdoing 	was 	“a 	result 	of 	the 	parties’
contractual relationship, not as a result of a fiduciary relationship” and would be
“better resolved through 	contract 	principles, 	rather than general 	principles 	of
fiduciary relationships”).

60. 	However, Karki’s contention that Lamichhane breached his fiduciary duty
by “using the Franchises and their associated assets and resources” for his “own
benefit and to the exclusion and detriment of Karki,” is supported by sufficient
evidence to survive summary judgment. (Countercl. ¶ 118.)
61. 	Karki argues that Lamichhane used Compass Tax’s “funds to pay for
personal expenses as credit to his outstanding ‘management fees.’ ” 	(Br. Opp. Pls.’
Mot. 12.) 	Further, there is clear evidence here that Lamichhane wrote checks to
himself under the guise of paying himself a “management fee.” (See ECF Nos. 49.7–
.10 (providing the checks at issue).) Plaintiffs have not offered sufficient evidence to
show that these management fees were “proportionate with the value of those
services” performed by Lamichhane, as contemplated in the Operating Agreement,
(see Op. Agt. ¶ 5.1).
62. 	Plaintiffs have not met their burden at this stage, as a genuine issue of
material fact remains as to whether Lamichhane breached a fiduciary duty owed to
Karki by paying himself a management fee, and whether the amounts paid were
disproportionate to the value of the services Lamichhane performed for Compass Tax.
63. 	The Court therefore DENIES in part Plaintiffs’ Motion as to Counterclaim
Three for breach of fiduciary duty and Counterclaim Four for constructive fraud, to
the extent those counterclaims concern Lamichhane’s use of “the Franchises and
their associated assets and resources for [his] own benefit and to the exclusion and
detriment of Karki.” 	(Countercl. ¶ 118). 	Except as expressly denied, Plaintiffs’

Motion is otherwise GRANTED in part as to Counterclaims Three and Four, and
those claims are therefore DISMISSED.
3. 	Karki’s Counterclaim Five: Violations of the UDTPA
64. 	Plaintiffs seek dismissal of Counterclaim Five based on their contention
that Karki’s UDTPA claim is “effectively a repackaging of the breach of contract and
fraud claims.” 	(Br. Supp. Pls.’ Mot. 14.) 	As this is the sole argument raised by
Plaintiffs regarding Counterclaim Five, the Court limits its analysis accordingly.5
65. 	In order to establish a UDTPA claim, Karki must prove that Plaintiffs
committed (1) an unfair or deceptive act or practice, (2) in or affecting commerce, (3)
which proximately caused injury to him. 	Walker v. Fleetwood Homes of N.C., Inc.,
362 N.C. 63, 71–72 (2007).
66. 	Karki’s UDTPA claim relies on the same facts and conduct underlying his
counterclaims 	for 	fraud, 	breach 	of 	fiduciary 	duty, 	and 	constructive 	fraud.
(Countercl. ¶ 132.) 	The Court has herein determined that those claims survive
summary judgment, at least in part. 	(See supra ¶¶ 53, 63.) 	Therefore, those
counterclaims, and the conduct alleged in support thereof, may serve as a basis for
Karki’s Counterclaim Five. See Silverdeer, LLC v. Berton, 2013 NCBC LEXIS 21, at
*28–29 (N.C. Super. Ct. Apr. 24, 2013) (holding that the UDTPA claim derivative of
fraud and other claims “rises and falls” with those claims); Conservation Station, Inc.
5 The Court notes that Plaintiffs only focus on the first element presented below, (infra ¶ 65),
regarding whether the conduct alleged by Karki, and the evidence presented in support of
his UDTPA claim, is sufficient to establish an unfair or deceptive act or practice, (see Br.
Supp. Pls.’ Mot. 14). 	Plaintiffs do not raise any argument concerning whether Karki has
presented sufficient evidence to show that the alleged conduct satisfies the second required
element that the unfair or deceptive act or practice is “in or affecting commerce.”

v. Bolesky, 2023 NCBC LEXIS 164, at **29 (N.C. Super. Ct. Dec. 12, 2023) (“Claims
for breach of fiduciary duty and constructive fraud may in appropriate circumstances
support a claim for violations of the UDTPA.”).
67. 	Therefore, the Court hereby DENIES in part Plaintiffs’ Motion as to
Counterclaim Five for violations of the UDTPA. However, to the limited extent this
claim relies on Counterclaims Three and Four for Lamichhane’s alleged failure (i) to
honor payment obligations under the September Agreement, (ii) to take transfer of
the franchise rights and obligations for the Liberty Tax Franchises, and (iii) to abide
by Liberty Tax’s policies and regulations, Plaintiffs’ Motion is GRANTED in part and
Counterclaim Five is DISMISSED to that extent.
B. 	Defendant’s Motion
68. 	Karki seeks affirmative summary judgment on his own Counterclaim One
for breach of contract, as well as summary judgment on Plaintiffs’ Counts One for
breach of contract and Count Two for breach of duty of good faith and fair dealing.
(See Def.’s Mot.)
69. 	Affirmative summary judgment on a party’s own claims for relief is
infrequently granted and requires the moving party to carry a greater burden. Brooks
v. Mount 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). Therefore, 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); see Banc of Am. Merch. Servs.,
LLC v. Arby’s Rest. Grp., Inc., 2021 NCBC LEXIS 61, at *10–11 (N.C. Super. Ct. June
30, 2021).
1. 	Counterclaim One and Count One: Breach of Contract
70. 	Karki 	seeks 	summary 	judgment 	on 	the 	parties’ 	respective 	breach 	of
contract claims, arguing that the “undisputed material facts show the existence of a
valid contract and non-performance by Plaintiffs of a material aspect of that
contract.” (Def.’s Br. Supp. Def.’s Mot. 14, ECF No. 47 [“Br. Supp. Def.’s Mot.”].)
71. 	“As a general rule, if either party to a bilateral contract commits a material
breach of the contract, the non-breaching party is excused from the obligation to
perform further.” McClure Lumber Co. v. Helmsman Constr., Inc., 160 N.C. App. 190,
198 (2003) (citation omitted). 	A “[b]reach of contract occurs when a party fails to
perform a contractual duty which has become absolute . . . [W]hen performance of a
duty under contract is presently due any nonperformance constitutes a breach.”
Millis Constr. Co. v. Fairfield Sapphire Valley, Inc., 86 N.C. App. 506, 510 (1987)
(citations omitted). 	A breach is considered material if it “substantially defeats the
purpose of the agreement or goes to the very heart of the agreement, or can be
characterized as a substantial failure to perform.” Supplee v. Miller-Motte Bus. Coll.,
Inc., 239 N.C. App. 208, 220 (2015) (quoting Long v. Long, 160 N.C. App. 664, 668
(2003)). The materiality of a breach of contract is “ordinarily a question for a jury.”

Id. at 221 (quoting Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. App.
296, 302 (2009)).
72. 	Further, “[i]f the contract ‘contains some condition precedent to defendant’s
liability,’ the plaintiff must also allege that the condition has been met.” 	Upchurch
v. Sapp, 2020 NCBC LEXIS 118, at *5 (N.C. Super. Ct. Oct. 8, 2020) (quoting
Beachboard v. S. Ry. Co., 16 N.C. App. 671, 681 (1972) (citation omitted)). 	“A
condition precedent is a fact or event that must exist or occur before there is a right
to immediate performance, before there is a breach of contract duty.” Kumar v. Patel,
2024 NCBC LEXIS 36, at **19–20 (N.C. Super. Ct. Feb. 28, 2024) (quoting Mosely v.
WAM, Inc., 167 N.C. App. 594, 600 (2004) (citation omitted)). 	“The use of language
such as ‘when,’ ‘after,’ and ‘as soon as’ clearly indicates that a promise will not be
performed except upon the happening of a stated event, i.e., a condition precedent.”
Craftique, Inc. v. Stevens & Co., 321 N.C. 564, 567 (1988).
i. 	Karki’s Counterclaim One
73. 	Karki’s 	Counterclaim 	One 	focuses 	on 	the 	September 	Agreement 	and
Plaintiffs’ alleged failure to pay the amount due thereunder on 15 May 2022.
(Countercl. ¶¶ 72, 105; Br. Supp. Def.’s Mot. 14.)
74. 	Based on the record before the Court, it is undisputed that the September
Agreement provided an unambiguous payment term, which required Plaintiffs, as
the buyers, to pay Karki the first of five installment payments on 15 May 2022. (Sept.
Agt. ¶ 2.b.) It is also undisputed that the first installment payment was not made to
Karki on 15 May 2022, and no such payment has been made since. (See Lamichhane

Dep. 109:12–16.) 	As a result, the Court concludes that Plaintiffs breached the
September Agreement by failing to pay Karki the first installment payment in
accordance with the terms of that agreement.
75. 	While Plaintiffs acknowledge their own non-payment, they contend that
Karki has “provided no independent documentation of his completion of his duties to
attempt to transfer the ownership of the franchises,” and that, as a result, 	Karki
breached the September Agreement first, which Plaintiffs contend excused their own
non-performance. 	(Pls.’ Memo. Opp’n Def.’s Mot. 6–8, ECF No. 53 [“Br. Opp. Def.’s
Mot.”].)
76. 	While the September Agreement requires Karki, as the seller, to “execute
all documents necessary to conclude this transaction, including, where applicable,
assignments 	of 	leases, 	contract, 	licenses, 	operating 	agreements 	or 	other 	such
documents necessary to fulfill the parties’ intent,” there is no deadline for completion
of this obligation, and Plaintiffs have offered no evidence to support a contention that
Karki had a deadline to perform this obligation. 	As such, Karki’s performance was
not a condition precedent to Plaintiffs’ performance on 15 May 2022, and thus
Plaintiffs’ payment obligation was not excused by Karki’s alleged failure to comply
with his transfer obligations.
77. 	Therefore, 	the 	Court 	GRANTS 	in 	part 	Defendant’s 	Motion 	as 	to
Counterclaim One for breach of contract, to the extent the Motion seeks to establish
that one or more Plaintiffs failed to pay Karki the 15 May 2022 installment payment.

78. 	While summary judgment is appropriate as to Karki’s Counterclaim One
related to the issue of breach, a genuine issue of material fact remains as to whose
obligation it was to pay Karki on 15 May 2022. 	While the September Agreement
expressly lists Lamichhane and Shrestha as the “Buyers,” (Sept. Agt. 5), the preamble
of the September Agreement explicitly states that Compass Tax is the purchaser,
(Sept. Agt. ¶ 1). 	Additionally, Karki has inconsistently identified who he contends
was obligated to remit payment on 15 May 2022. 	(Compare Br. Supp. Def.’s Mot. 4
(“Compass Tax agreed to pay Karki[.]”), with Countercl. 13, 29 (“Buyers breached the
. . . September Agreement . . . by failing to make payments when due,” with the term
“Buyers” defined therein as Compass Tax, Lamichhane, and Shrestha).) When asked
about this issue at the Hearing, the parties were unable to provide any guidance or
clarification.
79. 	Therefore, the Court determines that a genuine issue of material fact
remains as to Counterclaim One regarding which Plaintiff, or Plaintiffs, were
obligated to remit payment to Karki on 15 May 2022. See KNC Techs., LLC v. Tutton,
2021 NCBC LEXIS 38, at *40 (N.C. Super. Ct. Apr. 8, 2021) (citing Variety
Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 265 N.C. 520, 525 (2012))
(“An ambiguity exists when the effect of provisions is uncertain or capable of several
reasonable interpretations.”); see also Robertson v. Hartman, 90 N.C. App. 250, 252–
53 (1988) (“[I]f the terms employed [in the contract] are subject to more than one
reasonable meaning, the interpretation of the contract is a jury question.”).

80. 	Therefore, the Court DENIES in part Defendant’s Motion as it relates to
which Plaintiff(s) bear the liability associated with Counterclaim One for breach of
the September Agreement.
ii. 	Plaintiffs’ Count One
81. 	Plaintiffs 	likewise 	allege, 	through 	their 	own 	Count 	One, 	that 	Karki
breached the September Agreement by failing to facilitate the transfer of the Liberty
Tax Franchises.6 (Am. Compl. ¶¶ 27–30.)
82. 	As the Court has discussed above, one or more Plaintiffs breached the
September Agreement by failing to remit payment to Karki on 15 May 2022. 	The
Court has also noted that Karki’s obligation to transfer the Liberty Tax Franchises
to Plaintiffs was not a condition precedent, and that as a result, Karki’s alleged
failure to facilitate the transfer of the Liberty Tax Franchises did not relieve Plaintiffs
of their obligation to pay Karki on 15 May 2022. 	Thus, Plaintiffs breach of the
September Agreement on 15 May 2022 relieved Karki of any pending obligations to
facilitate the transfer of the Liberty Tax Franchises.
6 In the Amended Complaint, Plaintiffs allege multiple breaches of the September Agreement
by Karki. (See Am. Compl. ¶¶ 31–42.) However, as Karki correctly points out, (Def.’s Reply
Br. Supp. Def.’s Mot. 1 n.1, ECF No. 55 [“Reply”]), Plaintiffs do not respond to Karki’s
argument regarding those other alleged breaches, instead focusing only on Karki’s alleged
failure to facilitate the transfer of the Liberty Tax Franchises, (see Br. Opp. Def.’s Mot. 6–9).
Plaintiffs had the burden “to rebut these arguments by identifying the evidence that supports
[their] claim and articulating how that evidence creates a genuine issue of material fact for
trial.” Brewster v. Powell Bail Bonding, Inc., 2020 NCBC LEXIS 27, at *9 (N.C. Super. Ct.
Mar. 11, 2020). 	Plaintiffs did not carry that burden. 	Therefore, the Court concludes that
there are no genuine issues of material fact regarding Karki’s other alleged breaches, (Am.
Compl. ¶¶ 31–42), and grants summary judgment in Karki’s favor on those alleged breaches.

83. 	Therefore, Defendant’s Motion is GRANTED in part as to Count One for
breach of contract, and that claim is DISMISSED.
2. 	Plaintiffs’ Count Two: Breach of the Duty of Good Faith and
Fair Dealing
84. 	Karki seeks summary judgment on Plaintiffs’ Count Two, arguing in
relevant part that “there is no evidence to substantiate that Karki breached any
provision of the September Agreement or its implied covenant of good faith and fair
dealing.” (Br. Supp. Def.’s Mot. 23.)
85. 	“In every contract there is 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.” 	Bicycle Transit Auth., Inc. v. Bell, 314 N.C.
219, 228 (1985) (citation omitted). 	However, the Court may not imply a term that
already exists in the contract. 	See Heron Bay Acquisition, LLC v. United Metal
Finishing, Inc., 2014 NCBC LEXIS 16, at **42 (N.C. Super. Ct. May 7, 2014); see also
Campbell v. Blount, 24 N.C. App. 368, 371 (1975) (“There cannot be an express and
an implied contract for the same thing existing at the same time.”).
86. 	Plaintiffs’ claim for breach of the duty of good faith and fair dealing is
based 	on 	Karki’s 	alleged 	failure 	to 	facilitate 	the 	transfer 	of 	the 	Liberty 	Tax
Franchises. 	(Br. Opp. Def.’s Mot. 9.) 	The Court has herein granted summary
judgment in Karki’s favor on this issue, and as a result, it would be inappropriate for
the 	Court 	to 	permit 	this 	claim 	to 	move 	forward. 	See 	Suntrust 	Bank 	v.
Bryant/Sutphin Props., LLC, 222 N.C. App. 821, 833 (2012) (“As the jury determined
that plaintiff did not breach any of its contracts with defendants, it would be illogical

for this Court to conclude that plaintiff somehow breached implied terms of the same
contracts.”), disc. rev. denied, 366 N.C. 417, (2012).
87. 	Therefore, the Court hereby GRANTS in part Defendant’s Motion as to
Count Two for breach of the duty of good faith and fair dealing, and that claim is
hereby DISMISSED.
V. 	CONCLUSION
88. 	THEREFORE, for the foregoing reasons, the Court hereby GRANTS in
part and DENIES in part the Motions as follows:
a. 	The 	Court 	GRANTS 	in 	part 	Plaintiffs’ 	Motion 	as 	to 	Karki’s
Counterclaim Three for breach of fiduciary duty and Counterclaim Four for
constructive fraud, to the extent that those claims rely on Lamichhane’s
failure (i) to honor payment obligations under the September Agreement,
(ii) to take transfer of the franchise rights and obligations for the Liberty
Tax Franchises, and (iii) to abide by Liberty Tax’s policies and regulations.
Those claims are hereby DISMISSED to that extent; and
b. 	The Court GRANTS in part Defendant’s Motion as to Plaintiffs’
Count One for breach of contract, Plaintiffs’ Count Two for breach of the
duty of good faith and fair dealing, and Karki’s Counterclaim One for
breach of contract in part. 	Plaintiffs’ Counts One and Two are hereby
DISMISSED; and
c. 	Except as expressly granted, the Motions are otherwise DENIED.

89. 	For the avoidance of doubt, the following claims will proceed to trial:
(1) Karki’s Counterclaim One for Breach of Contract, to determine which Plaintiff(s)
were obligated to remit payment to Karki on 15 May 2022 pursuant to the September
Agreement, and to determine damages related thereto; (2) Karki’s Counterclaim Two;
(3) Karki’s Counterclaims Three and Four, to the extent those claims concern
Lamichhane’s use of the Liberty Tax Franchises for his own benefit to the detriment
of Karki; and (4) Karki’s Counterclaim Five, to the extent that Karki’s Counterclaims
Two, Three, or Four serve as a basis for that claim.
SO ORDERED, this the 20th day of May, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases