STAMATAKOS v. CAROLINA UROLOGY PARTNERS, PLLC, 2024 NCBC 8

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23 CVS 5127
THEODORE STAMATAKOS, M.D.,
Plaintiff,
v.
CAROLINA UROLOGY PARTNERS,
PLLC, RICHARD NATALE II, M.D.,
and COURTNEY CLAIR,
Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION TO DISMISS
COUNTS I AND III OF PLAINTIFF’S
FIRST AMENDED COMPLAINT AND
PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED
COMPLAINT
THIS MATTER is before the Court on Defendants’ Motion to Dismiss Counts
I and III of Plaintiff’s First Amended Complaint (“Partial Motion to Dismiss,” ECF
No. 29) and Plaintiff’s Motion for Leave to File Second Amended Complaint (“Motion
to Amend,” ECF No. 46) (collectively, the “Motions”).
THE COURT, having considered the Motions, the briefs of the parties, the
arguments of counsel, and all appropriate matters of record, CONCLUDES that the
Motions should be GRANTED, in part, and DENIED, in part, for the reasons set
forth below.
Gardner Skelton PLLC, by Jared E. Gardner and Bella Thoren, for Plaintiff.
Johnston, Allison & Hord, P.A., by David E. Stevens, Katie D. Burchette, and
William D. McClelland, for Defendants.
Davis, Judge.
Stamatakos v. Carolina Urology Partners, PLLC, 2024 NCBC 8.

INTRODUCTION
1. 	This lawsuit concerns the termination of Plaintiff Theodore Stamatakos
from his employment with Defendant Carolina Urology Partners, PLLC (“CUP”). The
present Motions do not require the Court to rule on whether his termination was in
breach of his contract with CUP. That issue will be decided at a later date. Instead,
the Court must now determine whether Plaintiff’s claims for fraud and unfair and
deceptive trade practices (“UDTP”) should be dismissed and whether Plaintiff should
be permitted to amend his original Complaint for a second time.
FACTUAL AND PROCEDURAL BACKGROUND
2. 	The Court does not make findings of fact on a motion to dismiss under
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and instead recites those
facts contained in the complaint (and in documents attached to, referred to, or
incorporated 	by 	reference 	in 	the 	complaint) 	that 	are 	relevant 	to 	the 	Court’s
determination of the motion. See, e.g., Window World of Baton Rouge, LLC v. Window
World, Inc., 2017 NCBC LEXIS 60, at *11 (N.C. Super. Ct. July 12, 2017).1
3. 	CUP is a North Carolina professional limited liability company with its
principal place of business in Huntersville, North Carolina. 	(Second Am. Compl.,
[“SAC”] ¶ 2, ECF No. 46.1.) Courtney Clair is the chief executive officer of CUP, and
1 As noted below, the Court is electing—in furtherance of judicial economy—to consider
Defendants’ arguments in support of their Partial Motion to Dismiss as applied to Plaintiff’s
proposed Second Amended Complaint (“SAC”). Accordingly, this Opinion cites to the factual
allegations and claims contained in the proposed SAC rather than those set out in Plaintiff’s
Corrected First Amended Complaint (which is currently the operative pleading in this case).

Dr. Richard Natale, II is the chairman of its board of managers. (SAC ¶¶ 4, 59.) Until
3 November 2021, Plaintiff was a member of CUP. (SAC ¶¶ 75–76.)
4. 	Plaintiff is a urologist. (SAC ¶ 9.) In late 2008, prior to the creation of
CUP, Plaintiff founded and operated an independent urology practice, Providence
Urology, PLLC (“Providence Urology”). (SAC ¶ 9.) 	Providence Urology operated at
1428 Ellen Street, Suite A, in Monroe, North Carolina (the “Monroe Office”). 	(SAC
¶ 9.)
5. 	At the end of 2009, Providence Urology opened a second office in
Matthews, North Carolina (the “Matthews Office”). (SAC ¶ 10.)
6. 	In November 2010, Plaintiff “participated in the creation of CUP, a
twenty-four-physician urology group with seven divisions . . . in Charlotte, North
Carolina, and surrounding areas.” (SAC ¶ 15.) The formation of CUP “was in large
part motivated by [a desire] for greater bargaining power in business dealings with
insurance providers, suppliers, and vendors[.]” (SAC ¶ 16.) Because the divisions of
“CUP made up the majority of urology practices in their respective geographic areas[,]
. . . CUP . . . had greater strength to negotiate insurance pricing and set pricing for
urology 	services” 	than 	any 	individual 	division 	would 	have 	possessed 	prior 	to
consolidation. (SAC ¶ 18.)
7. 	The 	original 	divisions 	of 	CUP 	included 	urology 	practices 	“named
‘Gastonia,’ ‘Lake Norman,’ ‘Northeast,’ ‘Piedmont,’ ‘South Carolina,’ ‘Cleveland,’ and
[Plaintiff’s] Providence Urology, consisting of both . . . [the] Monroe Office and [ ]
Matthews Office, but labeled, singly, the ‘Providence Division.’ ” (SAC ¶ 21.)

8. 	Because 	Plaintiff 	was 	the 	only 	urologist 	practicing 	within 	the
Providence 	Division, it was 	considered a 	single-member division 	under CUP’s
Operating Agreement. (SAC ¶ 57.)
9. 	The Operating Agreement contains provisions addressing four scenarios
under which 	a 	member or division 	can 	be 	removed from 	CUP: (1) voluntary
withdrawal by a member under § 10.5; (2) involuntary withdrawal of a member by
CUP under § 10.6; (3) voluntary withdrawal by a division under § 10.9; and (4)
involuntary withdrawal of a division by CUP under § 10.11. (Operating Agreement,
Corrected First Am. Compl. [“CFAC”] Ex. A, ECF No. 46.1, at 44–53.)
10. 	Section 	10.5 	of 	the 	Operating 	Agreement 	governs 	the 	voluntary
withdrawal by a member and provides in relevant part that “[a]ny Member may
voluntarily withdraw from the Company upon at least 12 months’ prior written
notice[.]” 	(Operating Agreement, at 44 (emphasis removed).) 	Section 10.5 further
states that “[t]he notice requirement . . . may be waived or shortened by the
affirmative vote of a Supermajority of the Board of Managers and a two-thirds (2/3)
Interest of the Members within the Affected Division (excluding the withdrawing
Member).” (Operating Agreement, at 44.)
11. 	Section 10.6 of the Operating Agreement governs the involuntary
withdrawal (essentially, a termination) of a member by CUP. Section 10.6 provides
that “[i]nvoluntary [w]ithdrawal based upon termination of a Member’s Member
Services 	Agreement, 	and the 	corresponding 	decision 	to 	terminate 	a 	Member’s
Member Services Agreement for reasons other than those listed as ‘Termination of a

Physician for Cause’ as described in the Member’s Member Services Agreement, may
be initiated by either a Majority-In-Interest of the Members within a Division . . . o[r]
a Supermajority of the Board.”
12. 	Section 	10.9 	of 	the 	Operating 	Agreement 	governs 	the 	voluntary
withdrawal by a division. 	Section 10.9 provides that “an entire Division may
Voluntarily Withdraw from the Company” if the members of the division give “at least
twelve (12) but no more than forty (40) months prior written notice of their intention
to 	withdraw 	as 	an entire 	Division[.]” 	(Operating 	Agreement, 	at 	50 	(emphasis
removed).) Section 10.9 further provides that “[t]he Board shall have the discretion
to reduce such notice period.” (Operating Agreement, at 50.)
13. 	Section 10.11 of the Operating Agreement governs the involuntary
withdrawal of a division—another means of termination by CUP. 	Section 10.11
provides as follows:
[t]he Membership Interest of all of the Members of a particular Division
may be redeemed without such Member’s consent upon the vote of a
Supermajority of the Managers, exclusive of the Managers of the
affected Division. Such Involuntary Withdrawal shall become effective
ninety (90) days after the Board of Managers delivers written notice of
such Involuntary Withdrawal to the principal addresses of such Division
and the Member from that Division that represented the Division on the
Board. 	As 	provided 	for 	above, 	in 	the 	event 	of 	such 	Involuntary
Withdrawal, the involuntarily Withdrawing Division would have the
right to acquire certain Division Assets and capital operating and office
leases affiliated with such Division Assets and Practice Locations as
provided for [elsewhere in the Operating Agreement.]
(Operating Agreement, at 53.)
14. 	Plaintiff refers to § 10.9 as his “Escape Hatch” because, he asserts, it
provided the Providence Division with a contractual right to voluntarily withdraw

from CUP. Under this provision, a CUP division “can uncouple from CUP and carry
on essentially as if it had never joined CUP to begin with.” (SAC ¶ 51.) See, e.g., SAC
¶ 82 (“Had Plaintiff known, or had Clair not given him assurances about the
continuation of his lease, . . . Plaintiff could and would have used his Division Escape
Hatch to continue his profitable practice[.]”). (See SAC ¶¶ 46–47, 57.)
15. 	After the formation of CUP, a company called Slim, LLC (“Slim”)
purchased the Monroe Office’s building. 	(SAC ¶ 35.) 	At the time, Plaintiff was the
sole owner and member of Slim. 	(SAC ¶ 35.) 	CUP then leased the Monroe Office
from Slim. (SAC ¶ 35.)
16. 	The initial term of the lease was five years, and the lease’s term “was
automatically renewable for two additional five-year terms.” (SAC ¶ 35.) The lease
was “automatically renewed after 31 December 2016 for an additional five-year term
through 31 December 2021.” (SAC ¶ 36.) The terms of the lease “required 120 days’
notice prior to the expiration of the current term if either party elected not to renew”
it. (SAC ¶ 35.)
17. 	In early May 2021, Clair began to discuss a new draft lease for the Rock
Hill Division of CUP with Dr. David Wright, another member of CUP. 	(SAC ¶¶ 5,
67.)
18. 	On or about 1 June 2021, Clair (on behalf of CUP) executed a new two-
year lease for the Rock Hill Division. (SAC ¶ 67.)
19. 	“On or about 1 July 2021, Clair . . . also executed a two-year lease for
the Gastonia Division[.]” (SAC ¶ 71.)

20. 	The 	2021 	leases 	for 	the 	Rock 	Hill 	and 	Gastonia 	Divisions 	were
substantially similar. (SAC ¶¶ 69, 75.)
21. 	In late August 2021, Clair emailed Plaintiff to inform him that CUP did
not intend to renew the lease for the Monroe Office for another five-year term. (SAC
¶ 60.) Clair stated that “[s]imilar notifications ha[d] been and w[ould] be sent to ALL
CUP office space and operational contracts containing automatic renewal clauses.”
(SAC ¶ 60 (emphasis in original).) In a reply email, Plaintiff inquired whether “CUP
planned to negotiate ‘a new contract with different terms.’ ” (SAC ¶ 61.)
22. 	Clair responded the next day, stating that “nothing needed to be done at
that time” because “CUP was letting all its existing leases expire and go month to
month until CUP could prepare ‘a CUP standard lease with two-year (renewable)
terms’ for all CUP offices by the end of 2021.” (SAC ¶ 62.) Clair’s email also stated
that “‘[w]hen the draft lease is finalized I will send [sic] to you to review.’ ” 	(SAC
¶ 62.) 	In addition, Clair asked for the square footage of the Monroe Office. 	(SAC
¶ 62.)
23. 	On 4 October 2021, Plaintiff replied to Clair by email, providing the
square footage of the Monroe Office and apologizing for his delay in getting back to
her. (SAC ¶ 63.) He also reiterated his interest in finalizing a new lease with CUP,
asking that Clair “let him know when he can sign [the] new lease, or where we are in
the process.” (SAC ¶ 63.) After receiving no response, Plaintiff followed up by email
on 6 October 2021, noting that his lease expired at the end of the year and once again
expressing his desire to remain in the Monroe Office in 2022. He further stated that

unless he received an answer to his question about the renewal of his lease, he would
“assume the new lease will be effective 1/1/22, and I will have an office space to
accommodate the needs of my patients[.]” (Defs.’ Br. Opp’n Pl’s. Mot. Leave Am.
Second Am. Compl. Ex. A [“October Stamatakos and Clair Email Correspondence”],
at 2, ECF No. 49.1.)
24. 	On 11 October 2021, Clair responded with the following email:
Dr. Stamatakos,
I responded to your inquiry on 8/26 that upon expiration of your lease,
your lease would convert to month to month (as will all other CUP
leases) while we are in the process of getting the new leases in place. I
asked you for basic information that we needed regarding the new lease,
square footage clarification, and it took me 40 days to get a response
from you. This information was imperative to begin the process for the
new 	lease 	and 	determining 	if 	current 	rent 	is 	in 	line 	with 	FMV
assessments that we have performed. 	There are no assumptions to be
made 	as 	we 	have 	been 	straight 	forward 	and 	pragmatic 	with
communications regarding leases. You will be notified, as will all other
divisions once we have the new draft leases prepared.
Courtney
(October Stamatakos and Clair Email Correspondence, at 1.)
25. 	On or about 19 October 2021, at the direction of Dr. Natale, CUP
Practice Manager Laura Blaker emailed a November 2021 call schedule to Plaintiff
and other members of CUP. 	(SAC ¶¶ 5, 84.) 	“[Plaintiff]’s name appeared several
times on the November call schedule, and Blaker stated that CUP wanted to schedule
Plaintiff for more calls in November.” (SAC ¶ 84.)

26. 	On or about 2 November 2021, Clair sent Plaintiff a Zoom meeting
invitation. (SAC ¶ 87.) By separate email, she told him that she needed to meet with
him and Dr. David Konstandt the following day “regarding ‘open items.’ ” (SAC ¶ 88.)
27. 	Plaintiff accepted the invitation and attended the Zoom meeting the
next day at 5:30 p.m. (SAC ¶ 90.) Clair, Dr. Natale, and Dr. Konstandt also attended
the meeting, along with CUP’s attorney. 	(SAC ¶ 91.) 	CUP’s attorney informed
Plaintiff during the meeting that (1) he was “not a good fit” and that CUP “ha[d]
decided to terminate [him] for no cause”; (2) his malpractice insurance had been
cancelled; and (3) he “would receive an official letter and Separation Agreement via
email.” (SAC ¶ 91.)
28. 	Just after the Zoom meeting concluded, Plaintiff received via email a
letter signed by Dr. Natale confirming Plaintiff’s termination and informing him that
his malpractice insurance would “cease as of today[.]” 	(SAC ¶ 93.) 	A proposed
separation 	agreement 	and 	release 	was 	attached 	to 	the 	letter. 	(SAC 	¶ 	93.)
Approximately twenty minutes after the Zoom meeting, Defendants shut down all
the computers at the Monroe Office and blocked Plaintiff’s access to his patient files
and records. (SAC ¶ 93.)
29. 	The following day, Defendants sent an email to all of Plaintiff’s patients,
stating that the Monroe Office “ha[d] been permanently closed, and [Plaintiff] [wa]s
no longer affiliated with [CUP] as of November 4, 2021.’ ” 	(SAC ¶ 111.) 	The email
also provided that “‘[t]hese changes will not affect your care,’ ” informing the patients
“that ‘[i]f you had a future appointment in our Monroe location, that appointment has

been cancelled.’ 	The email then directed patients to visit CUP’s website or call
another CUP office.” (SAC ¶ 111.)
30. 	In addition, “Dr. Natale instructed Teddi Fowler[, Plaintiff’s nurse,] to
call all of Plaintiff’s patients and arrange for them to be seen in the Mint Hill office
by Dr. James Mills or at another CUP Division.” (SAC ¶ 120.)
31. 	Plaintiff chose not to sign the separation agreement and release. (SAC
¶ 96.)
32. 	Instead, on 22 March 2023, Plaintiff initiated the present action in
Mecklenburg County Superior Court. 	(ECF No. 3.) 	In his initial Complaint (“22
March Complaint”), Plaintiff named CUP as a defendant as well as ten additional
“John Doe” defendants and asserted claims for fraud/intentional misrepresentation,
breach of contract, and UDTP. (ECF No. 3.)
33. 	The case was designated a mandatory complex business case on 22
March 2023 and assigned to the undersigned the same day. (ECF Nos. 1, 2.)
34. 	On 26 July 2023, Defendants moved to dismiss Plaintiff’s fraud and
UDTP claims contained in the 22 March Complaint.
35. 	Plaintiff filed a First Amended Complaint (“FAC”) on 10 August 2023,
asserting the same claims but replacing the “John Doe” defendants with Clair and
Dr. Natale. (ECF No. 25.)
36. 	In light of the filing of the FAC, the Court denied Defendants’ Motion to
Dismiss as moot. 	(ECF No. 26.) 	That same day, Plaintiff filed a Corrected First
Amended Complaint. (ECF No. 27.)

37. 	On 11 September 2023, Defendants filed the Partial Motion to Dismiss
(ECF No. 29), one of the Motions currently before the Court.
38. 	The Court held a hearing on the Partial Motion to Dismiss on 6
December 2023.
39. 	Prior to a ruling by the Court on the Partial Motion to Dismiss, Plaintiff
filed his Motion to Amend (ECF No. 46) – the second of the Motions currently before
the Court – on 2 January 2024, in which he seeks leave to file the SAC in the form
set out as Exhibit A to the Motion to Amend. (ECF Nos. 46, 46.1.)
40. 	The proposed SAC asserts the same claims against Defendants as the
Corrected First Amended Complaint: (1) a UDTP claim against all Defendants; (2) a
breach 	of 	contract 	claim 	against 	CUP;2 and 	(3) 	a 	claim 	for 	fraud/intentional
misrepresentation against all Defendants. (SAC ¶¶ 139–94, ECF No. 46.1.) The only
difference between the proposed SAC and the Corrected First Amended Complaint is
the inclusion of additional allegations contained in the proposed SAC in support of
Plaintiff’s fraud claim. (SAC ¶¶ 169–194.)
41. 	The Court held a hearing via Webex on the Motion to Amend on 1
February 2024.
42. 	The Motions are now ripe for decision.
LEGAL STANDARD
43. 	Rule 15 of the North Carolina Rules of Civil Procedure states, in
pertinent part, as follows:
2 Neither of the present Motions before the Court implicate Plaintiff’s breach of contract
claim. Therefore, the analysis contained herein does not affect the validity of that claim.

A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which
no responsive pleading is permitted and the action has not yet been
placed upon the trial calendar, he may so amend it at any time within
30 days after it is served. 	Otherwise, a party may amend his pleading
only by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires.
N.C. R. Civ. P. 15(a).
44. 	Our Supreme Court has held that “[t]here is no more liberal canon in
the rules than that leave to amend shall be freely given when justice so requires.”
Vaughan 	v. 	Mashburn, 	371 	N.C. 	428, 	434 	(2018) 	(cleaned 	up). 	“This 	liberal
amendment process under Rule 15 complements the concept of notice pleading
embodied in Rule 8 and reflects the legislature’s intent that decisions be had on the
merits and not avoided on the basis of mere technicalities.” Id. (cleaned up).
45. 	Nevertheless, “the [R]ules still provide some protection for parties who
may be prejudiced by liberal amendment.” 	Henry v. Deen, 310 N.C. 75, 82 (1984)
(citation omitted). “Reasons for justifying denial of an amendment include: (1) undue
delay, (2) bad faith, (3) undue prejudice, (4) futility of amendment, and (5) repeated
failure to cure defects by previous amendments.” 	Howard v. IOMAXIS, LLC, 2021
NCBC LEXIS 116, at *17 (N.C. Super. Ct. Dec. 22, 2021) (citation omitted). Motions
to amend are “addressed to the discretion of the trial court.” 	Vaughan, 371 N.C. at
433 (citation omitted).
46. 	“It is well-established that dismissal pursuant to Rule 12(b)(6) is proper
when ‘(1) the complaint on its face reveals that no law supports the plaintiff’s claim;
(2) the complaint on its face reveals the absence of facts sufficient to make a good

claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s
claim.’ ” Corwin v. British Am. Tobacco PLC, 371 N.C. 605, 615 (2018) (quoting Wood
v. Guilford Cnty., 355 N.C. 161, 166 (2002)). The Court may also “reject allegations
that 	are 	contradicted 	by 	the 	documents 	attached, 	specifically 	referred 	to, 	or
incorporated by reference in the complaint.” 	Laster v. Francis, 199 N.C. App. 572,
577 (2009).
ANALYSIS
I. 	Motion to Amend
47. 	As noted above, the new allegations in the proposed SAC relate solely to
Plaintiff’s fraud claim.
48. 	Defendants do not argue that the Motion to Amend should be denied on
grounds of undue delay, bad faith, or undue prejudice. The Court therefore need not
address those grounds.
49. 	Instead, the only ground upon which Defendants oppose Plaintiff’s
Motion to Amend is futility – arguing that the additional allegations contained in the
SAC remain insufficient to state a valid fraud claim.
50. 	“The futility standard under Rule 15 is essentially the same standard
used in reviewing a motion to dismiss under Rule 12(b)(6), but provides the Court
liberal discretion to find that an amendment lacks futility.” Simply the Best Movers,
LLC v. Marrins’ Moving Sys., 2016 NCBC LEXIS 28, at **5–6 (N.C. Super. Ct. Apr.
6, 2016). “[A] motion to amend is not futile when ‘the allegations of the [amendment],
treated as true, are sufficient to state a claim upon which relief may be granted under

some legal theory, whether properly labeled or not.” Howard v. IOMAXIS, LLC, 2023
NCBC LEXIS 159, at **15 (N.C. Super. Ct. Nov. 29, 2023) (quoting Harris v. NCNB
Nat’l Bank, 85 N.C. App. 669, 670 (1987)). On the other hand, “[a] motion for leave
to amend is futile and appropriately denied when the ‘proposed amendment could not
withstand a motion to dismiss for failure to state a claim.’ ” Insight Health Corp. v.
Marquis Diagnostic Imaging of N.C., LLC, 2016 NCBC LEXIS 77, at *6 (N.C. Super.
Ct. Oct. 7, 2016) (quoting Smith v. McRary, 306 N.C. 664, 671 (1982)).
51. 	Defendants essentially argue that Plaintiff’s fraud claim should be
dismissed for the following reasons: (1) the alleged misrepresentations set out in the
SAC were not, in fact, false; (2) Plaintiff’s allegations of fraud have not been pled with
particularity as required by Rule 9(b) of the North Carolina Rules of Civil Procedure;
and (3) the benefits received by Defendants as a result of the purportedly fraudulent
representations were not adequately identified.
52. 	Plaintiff’s fraud claim is based on the theory that (1) Defendants desired
to terminate his membership in CUP, take over the care of his patients, and destroy
his practice in the process; and (2) they accomplished this goal via a scheme consisting
of deceptive acts intended to mask their true intentions and keep Plaintiff from
exercising his Escape Hatch (so as to deny him the benefits provided for under the
Escape 	Hatch). 	Plaintiff 	alleges 	that 	as 	a 	result 	of 	Defendants’ 	fraudulent
misrepresentations he was effectively lulled into a state of complacency regarding his
status with CUP and that in reliance on those misrepresentations he did not exercise
the Escape Hatch.

53. 	Plaintiff asserts that Defendants’ misrepresentations can be lumped
into three categories: (1) the emails from Clair (on behalf of all Defendants) between
August and October of 2021 that falsely stated that once CUP had finalized a new
standard two-year lease for all of its divisions, Plaintiff would receive such a lease
with a beginning date of January, 2022; (2) in October 2021, Blaker sent Plaintiff a
November 2021 call schedule on which Plaintiff’s name appeared several times,
stating 	“that 	CUP 	wanted 	to 	schedule 	Plaintiff 	for 	more 	[patient] 	calls 	in
November[,]” when, in fact, Defendants planned to terminate Plaintiff before he could
make those calls; and (3) Plaintiff was deceived into believing the 3 November 2021
Zoom meeting was about “open items,” when, in reality, the sole purpose of the
meeting was to terminate him. (SAC ¶¶ 60–97.)
54. 	The elements of a fraud claim are a “(1) [f]alse 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). “Reliance on the allegedly false
representations must be reasonable, and that reasonableness is a question for the
jury, ‘unless the facts are so clear that they support only one conclusion.’ ” 	New v.
Thermo Fisher Sci., Inc., 2020 U.S. Dist. LEXIS 141510, at *25 (M.D.N.C. Aug. 7,
2020) (quoting Forbis, 361 N.C. at 527)).
55. 	Because of the broad range of conduct and circumstances under which
it can exist, fraud defies an exhaustive definition. 	Ragsdale v. Kennedy, 286 N.C.
130, 138 (1974). As our Supreme Court has observed:

Fraud may be defined as any trick or artifice where a person, by means
of false statements, concealments of material facts, or deceptive conduct
which is intended to and does create in the mind of another an erroneous
impression concerning the subject-matter of a transaction, whereby the
latter is induced to take action, or forbears from acting with reference to
a property or legal right he has, which results to his disadvantage, and
which he would not have consented to had the impression in his mind
not been created and in accordance with the real facts.
Mitchell v. Strickland, 207 N.C. 141, 143 (1934).
56. 	“Claims of fraud are held to a heightened pleading standard pursuant
to Rule 9(b) of the North Carolina Rules of Civil Procedure.” 	Julian v. Wells Fargo
Bank, N.A., 2012 NCBC LEXIS 32, at **19–20 (N.C. Super. Ct. May 22, 2012). Rule
9(b) provides in relevant part that “[i]n all averments of fraud, . . . the circumstances
constituting fraud . . . shall be stated with particularity.” N.C. R. Civ. P. 9(b).
57. 	“Regardless 	of 	whether 	it 	is 	labeled 	‘fraud’ 	or 	‘fraudulent
misrepresentation,’ the elements of the claim are the same under North Carolina
law.” Botanisol Holdings II, LLC v. Propheter, 2021 NCBC LEXIS 94, at **15 (N.C.
Super. Ct. Oct. 18, 2021). 	To plead a claim of fraud based on an affirmative
misrepresentation,
a 	plaintiff 	“must 	allege 	(1) 	the 	time, 	place 	and 	content 	of 	the
misrepresentation, 	(2) 	the 	identity 	of 	the 	person 	making 	the
representation and (3) what was obtained as a result of the fraudulent
acts or representations” in order to sufficiently plead his or her claim.
Deluca v. River Bluff Holdings II, 2015 NCBC LEXIS 12, at *21 (N.C.
Super. Ct. Jan. 28, 2015) (internal quotation marks, brackets, and
citation omitted). The alleged misrepresentations must also be “definite
and specific,” meaning that they must be “more than ‘mere puffing,
guesses, or assertions of opinions’ but actual representations of material
facts.” Id. (quoting Rowan County Bd. of Educ. v. U.S. Gypum Co., 332
N.C. 1, 17, 418 S.E.2d 648, 659 (1992)).

Aldridge v. Metro. Life Ins. Co., 2019 NCBC LEXIS 116, at *76 (N.C. Super. Ct. Dec.
31, 2019).
58. 	This Court has explained as follows with regard to the content of the
required false representation:
[The] false representation must relate to a past or existing fact. 	See
Trull v. Central Carolina Bank & Trust Co., 117 N.C. App. 220, 225, 450
S.E.2d 542, 545 (1994); Martinez v. Reynders, 2013 NCBC LEXIS 31, at
*7 (N.C. Super. Ct. July 10, 2013). Statements of opinion, predictions of
future events, and promises of future intent generally do not give rise to
an action for fraud. See, e.g., Leftwich v. Gaines, 134 N.C. App. 502, 508,
521 S.E.2d 717, 722-23 (1999); Braun v. Glade Valley School, Inc., 77
N.C. 	App. 	83, 	87, 	334 	S.E.2d 	404, 	407 	(1985). 	In 	drawing 	this
distinction, the law recognizes that opinions, predictions, and promises
typically signal uncertainty or contingency in a way that statements of
existing fact do not. The listener is entitled to rely on the latter, but not
the former. See Pritchard v. Dailey, 168 N.C. 330, 332, 84 S.E. 392, 393
(1915) 	(holding 	that 	“[o]ne 	who 	relies 	on” 	opinions 	or 	promissory
representations “must take the consequences of his own imprudence”).
This is not a hard and fast rule. 	A speaker may not voice an opinion
that he does not honestly believe, intending to deceive the listener, and
then assert immunity from an action for fraud. See Leftwich, 134 N.C.
App. 	at 	508, 	521 	S.E.2d 	at 	723. 	Likewise, 	“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, 77 N.C. App. at 87, 334
S.E.2d at 407; accord Liggett Grp., Inc. v. Sunas, 113 N.C. App. 19, 30,
437 S.E.2d 674, 681 (1993). In each case, the “misrepresentation of the
state of the promisor’s mind” is itself a misrepresentation of an existing
fact, subject to a claim for fraud. Overstreet v. Brookland, Inc., 52 N.C.
App. 444, 452, 279 S.E.2d 1, 6 (1981); accord McKinnon v. CV Indus.,
Inc., 213 N.C. App. 328, 338, 713 S.E.2d 495, 503 (2011). 	Accordingly,
it 	is 	permissible 	to 	state 	a 	claim 	for 	fraud 	based 	on 	promissory
representations, but to do so, the plaintiff must allege facts “from which
a court and jury may reasonably infer that the defendant did not intend
to carry out such representations when they were made.” 	Whitley v.
O’Neal, 5 N.C. App. 136, 139, 168 S.E.2d 6, 8 (1969).
Potts v. KEL, LLC, 2018 NCBC LEXIS 24, at *8–9 (N.C. Super. Ct. Mar. 27, 2018).

59. 	Thus, “the maxim caveat emptor does not apply in cases of fraud[.]”
Tillery Envtl. LLC v. A&D Holdings, Inc., 2018 NCBC LEXIS 13, at *53 (N.C. Super.
Ct. Feb. 9, 2018) (quoting Johnson v. Owens, 263 N.C. 754, 758 (1965)).
60. 	With regard to the lease, Plaintiff’s allegations of misrepresentations
made by Clair in her email exchanges with him can be summarized as follows: (1) she
represented that his division (and all other CUP divisions) would be notified once the
standard language of the new leases had been drafted, despite her knowledge that
new two-year leases had already been finalized with two of the other CUP divisions;
(2) she claimed to need the measurements of Plaintiff’s Monroe Office as a delay tactic
even though she was already in possession of this information; and (3) she falsely
assured him that a new lease would be sent to him for his review once CUP had
processed the square footage information that he provided to her.
61. 	Admittedly, 	Clair’s 	statements 	in 	these 	emails 	are 	susceptible 	to
differing interpretations. 	At this early stage of the litigation, however, the Court
must construe these statements (along with Plaintiff’s allegations as a whole) in the
light most favorable to him.
62. 	Furthermore, 	Plaintiff 	has 	alleged 	that 	Clair’s 	deceptive
representations 	to 	him 	in 	their 	email 	exchange 	regarding 	the 	lease 	were
supplemented by CUP’s acts of (1) providing him with a November call list on which
his name was listed despite CUP’s knowledge that he would be terminated before he
could make those calls; and (2) inviting him to a Zoom meeting under false pretenses
when, in reality, the sole purpose of the meeting was to terminate him.

63. 	Plaintiff has also satisfied Rule 9(b) by alleging specific details with
regard to the misrepresentations forming the basis for his fraud claim, including by
identifying the individuals who made the alleged misrepresentations; the time, place,
and manner in which the misrepresentations were made; and the benefit sought to
be obtained by Defendants via the fraudulent representations. (SAC ¶¶ 170–93.)
64. 	Finally, the Court also rejects Defendants’ argument that Clair is not a
proper defendant to the fraud claim because she would not have directly benefitted
from the fraudulent scheme that Plaintiff has alleged on the part of CUP. “It is well
settled 	that 	one 	is 	personally 	liable 	for 	all 	torts 	committed 	by 	him 	. . .
notwithstanding that he may have acted as agent for another or as an officer for a
corporation.” Holcomb v. Landquest Ltd. Liab. Co., 2017 NCBC LEXIS 36, at *21–22
(N.C. Super. Ct. Apr. 21, 2017) (cleaned up) (citing Palomino Mills, Inc. v. Davidson
Mills Corp., 230 N.C. 286, 292 (1949); see also Esteel Co. v. Goodman, 82 N.C. App.
692, 697 (1986), disc. rev. denied, 318 N.C. 693 (1987) (an officer of a corporation who
commits a tort is individually liable for that tort, even though acting on behalf of the
corporation in committing the act).
65. 	To be sure, Defendants have raised arguments casting doubt on the
validity of the assumptions underlying Plaintiff’s fraud claim. 	Those arguments,
however, will be better suited for the summary judgment stage when the Court will
have a more fully developed factual record before it and the liberal standards of Rule
12 and Rule 15 will no longer apply.

66. 	Accordingly, the Court finds that Plaintiff’s Motion to Amend should not
be denied on futility grounds. The Motion to Amend is therefore GRANTED.
II. 	Partial Motion to Dismiss
67. 	Because 	the 	Court 	is 	allowing 	the 	Motion 	to 	Amend, 	that 	would
normally moot the pending Partial Motion to Dismiss, meaning that Defendants
would have to file a new motion (which would, in turn, trigger a new briefing
schedule) in order to seek the dismissal of any claims contained in Plaintiff’s SAC.
See Houston v. Tillman, 234 N.C. App. 691, 695 (2014); see also Krawiec v. Manly,
2015 NCBC LEXIS 85, at **5–6 (N.C. Super. Ct. Aug. 24, 2015) (filing of amended
complaint renders moot arguments raised in motion to dismiss prior complaint).
68. 	However, such a result would make little sense here. The parties have
fully briefed and argued the issues upon which Defendants’ Partial Motion to Dismiss
is based. Moreover, as noted above, the SAC contains no new allegations relevant to
Plaintiff’s UDTP claim, meaning that the arguments made by Defendants in the
Partial Motion to Dismiss as to the UDTP claim (and by Plaintiff in his response brief)
are unaffected by the Motion to Amend. Indeed, Plaintiff’s counsel has stipulated—
both in his briefs and during the 1 February 2024 hearing—to the Court’s resolution
at the present time of all issues raised in both the Motion to Amend and the Partial
Motion to Dismiss.
69. 	Therefore, the Court, in the exercise of its discretion and its inherent
authority to control its docket in furtherance of judicial economy, will proceed to
address all of the arguments raised in both Motions. 	See Gateway Mgmt. Servs. v.

Carrbridge Berkshire Grp., Inc., 2018 NCBC LEXIS 45, at *8 (N.C. Super. Ct. May 9,
2018) (“Although an amended pleading would ordinarily moot a pending motion to
dismiss, the Court will consider Defendants’ Motions to Dismiss as to the Amended
Complaint because Defendants and Plaintiff both addressed the sufficiency of the
Amended Complaint in their respective briefs and at the hearing.”).
A. 	Fraud Claim
70. 	For the same reasons (set out above) that Defendants’ futility arguments
lack merit with regard to the allegations in the SAC, Defendants’ Partial Motion to
Dismiss regarding Plaintiffs’ fraud claim is likewise invalid. Therefore, that portion
of the Partial Motion to Dismiss is DENIED.
B. 	UDTP Claim
71. 	“To prevail on a claim of unfair and deceptive trade practices a plaintiff
must show (1) an unfair or deceptive act or practice, or an unfair method of
competition, (2) in or affecting commerce, (3) which proximately caused actual injury
to the plaintiff or to his business.” 	Spartan Leasing Inc. v. Pollard, 101 N.C. App.
450, 460–61 (1991).
72. 	Defendants raise two primary arguments in support of dismissal of the
UDTP claim: (1) the claim is barred by the “learned profession” exception under
N.C.G.S. § 75-1.1(b); and (2) because CUP is a single market participant, the acts
alleged by Plaintiff do not constitute conduct “in or affecting commerce.” Because the
Court concludes that dismissal of this claim is proper based on Defendants’ first
contention, it need not address their second one.

73. 	N.C.G.S. 	§ 75-1.1(b) 	provides 	that 	“[f]or 	purposes 	of 	this 	section,
‘commerce’ includes all business activities, however denominated, but does not
include professional services rendered by a member of a learned profession.”
74. 	Defendants argue that the allegations forming the basis for this lawsuit
are based on the provision of medical services and the resulting effect of Plaintiff’s
termination from CUP on his former patients. In response, Plaintiff asserts that the
learned profession exception does not apply here because this action involves a
business dispute rather than the provision of medical care.
75. 	North Carolina courts have broadly interpreted the scope of the learned
profession exception. Although our Court of Appeals has applied the exception on a
number of occasions beginning in the early 1980s, our Supreme Court first addressed
it five years ago in Sykes v. Health Network Sols., Inc., 372 N.C. 326, 333 (2019). In
Sykes, the plaintiffs were a putative class of all chiropractors who had practiced in
North Carolina since 2005, and the defendant operated as an intermediary between
chiropractors and insurance companies and third-party administrators for insurance
companies. Id. at 329. The putative class alleged antitrust and UDTP claims against
the defendant, among other claims. 	Id. at 328. 	Our Supreme Court described the
business relationship between the parties as follows:
Essentially, [Defendant] contracts with various chiropractors, who, as
part of the [Defendant’s] network, are able to provide chiropractic
services “in-network” for the various insurance payors with whom
[Defendant] has separately contracted. 	In exchange for in-network
access, members of [Defendant’s] network agree to permit [Defendant]
to negotiate with the payors the prices to be charged for in-network
chiropractic services. 	A chiropractor must maintain an average per-
patient cost at a certain level or risk termination from the network.

Id. The plaintiffs in Sykes alleged that the defendant was “violating North Carolina’s
antitrust statutes by fixing the prices charged by more than one-half of the licensed
chiropractors in the state and . . . using its market power . . . to restrict [the] output
of services.” Id. at 330.
76. 	The Supreme Court in Sykes upheld this Court’s dismissal of the UDTP
claim based on § 75-1.1(b). Id. at 334. The Supreme Court observed that the Court
of Appeals “ha[d] long held that members of health care professions f[e]ll within the
learned profession exemption to N.C.G.S. § 75-1.1, and ‘[t]his exception . . . ha[d] been
broadly interpreted.’ ” Id. (quoting Shelton v. Duke Univ. Health Sys., Inc., 179 N.C.
App. 120, 126 (2006)).
77. 	The Supreme Court adopted the following two-part test for determining
if the learned profession exception applies in a particular case: (1) whether “the
person or entity performing the alleged act [is] a member of a learned profession”;
and (2) whether “the conduct in question . . . [is] a rendering of professional services.”
Sykes, 372 N.C. at 334 (quoting Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C.
App. 584, 589 (2014)), appeal dismissed and disc. rev. denied, 368 N.C. 247 (2015)).
78. 	Importantly, the second prong of the test under Sykes includes not just
the rendering of professional services, but also “matter[s] affecting the professional
services rendered by members of a learned profession[.]” 	Sykes, 372 N.C. at 334
(quoting Burgess v. Busby, 142 N.C. App. 393, 407 (citations omitted) (emphasis
added), appeal dismissed, 353 N.C. 525, and disc. rev. improvidently allowed, 354
N.C. 351 (2001).

79. 	Based on the facts of Sykes, the Supreme Court concluded that both
parts of the test were satisfied because the challenged conduct was “directly related
to providing patient care” in that it allegedly resulted in a reduction in the provision
of such care. Sykes, 372 N.C. at 336.
80. 	Sykes is consistent with the approach taken by the Court of Appeals in
a number of prior cases. For example, in Cameron v. New Hanover Mem’l Hosp., Inc.,
58 N.C. App. 414, appeal dismissed and disc. rev. denied, 307 N.C. 127 (1982), the
Court of Appeals affirmed a trial court’s ruling that a group of podiatrists did not
have a viable UDTP claim against a hospital that denied them staff privileges based
on the applicability of the exception. The Court of Appeals reached this result despite
the fact “that [the] conduct involve[d] ‘commercial’ activity, not the rendering of
‘professional services[,]’ ” based on its determination that the decision to grant
hospital staff privileges was “a necessary assurance of good health care” and thus
part of a “rendering of ‘professional services[.]’ ” Id. at 446–47.
81. 	The Court of Appeals revisited the learned profession exception in
Wheeless, supra, in which it held that there could be no UDTP liability predicated on
allegations that a hospital and members of its executive committee and board of
directors accessed, shared, and reviewed peer review materials and patient medical
records of a surgeon and former employee. The Court of Appeals ruled that hospitals
and their administrators qualify as “medical professionals” and that the conduct of
which the surgeon complained was “integral” to “ensuring the provision of adequate
medical care.” Wheeless, 237 N.C. App. at 590–91.

82. 	This Court dismissed a UDTP claim based on the learned profession
exception in Se. Anesthesiology Consultants, PLLC v. Rose, 2019 NCBC LEXIS 63, at
*20–25 (N.C. Super. Ct. Oct. 10, 2019). 	The claim was brought by a group of
individual anesthesiologists who had agreed to a consolidation of their respective
practices against the company into which their practices had been consolidated and
its 	parent 	company, 	alleging 	misappropriation 	of 	funds 	and 	deception 	in 	the
negotiations and execution of various contracts. 	Id. at *5–11. 	We rejected the
argument that the exception was inapplicable simply because the challenged conduct
did not occur while any of the doctors at issue were actually practicing medicine. Id.
at *23. 	We explained that (1) the applicability of the learned profession exception
does not depend on whether the defendant was “actively engaged in the practice” of
the relevant profession at the time of the challenged conduct; and (2) “the exception
has been held to apply to [similar] alleged unfair and deceptive conduct . . . [such as]
allegedly ‘anticompetitive conduct involving commercial activity.’ ” 	Id. at *23–24
(quoting Cameron, 58 N.C. App. at 446–47).
83. 	This Court also relied on the learned profession exception in Alamance
Family Practice, P.A. v. Lindley, 2018 NCBC LEXIS 83 (N.C. Super. Ct. Aug. 14,
2018). In that case, the former employer of a nurse practitioner alleged that she had
engaged in unlawful competition in violation of N.C.G.S. § 75-1.1 leading up to and
following the termination of her employment by obtaining patient data, using that
data to solicit patients, paying unauthorized personal expenses, and attempting to
provide a doctor with kickbacks for patient referrals. Id. at *22–24. However, in light

of the fact that all of the anticompetitive conduct that the plaintiff alleged “related to
the provision of allergy testing services and communications with patients[,]” we
concluded the claim “f[e]ll[] within the learned profession exemption.” Id. at *25.
84. 	Based on the cases discussed above, it is clear that Plaintiff’s UDTP
claim here likewise falls squarely within the learned profession exception.
85. 	Although Plaintiff couches this claim as one arising from a business
dispute, he cannot ignore the fact that issues involving the provision of medical care
permeate every aspect of this lawsuit. 	Indeed, the proposed SAC focuses to a
significant 	degree 	on 	the 	effect 	of 	Defendants’ 	actions 	on 	Plaintiff’s 	patients.
Moreover, in Plaintiff’s response brief, he expressly concedes that “CUP and Natale,
with their misconduct, unquestionably affected the medical care of [Plaintiff’s]
patients.” (Pl.’s Br. Opp’n Defs.’ Mot. Dismiss, ECF No. 34, at 22.) See also, e.g., SAC
¶ 112 (“Defendants made minimal, if any, efforts to individually reach out to patients,
reschedule their appointments, or ensure they received proper follow-up care.”); id.
¶ 114 (“Defendants did not successfully contact patients to make sure they checked
their email, that their email addresses were correct, or that the patients had access
to email accounts at all.”); id. ¶ 122 (“Defendants failed to inform [Plaintiff’s] patients
that there would be a gap in their care. . . . 	The actions of Defendants reflect total
disregard for the provision of quality medical care[.]”).
86. 	Finally, the Court is not persuaded by Plaintiff’s argument that even if
the learned profession exception applies to CUP and Dr. Natale, it is inapplicable to

Clair because she is not a physician. As a leading treatise on UDTP claims in North
Carolina notes,
[t]he courts have taken a very broad reading of the exemption, including
not only physicians (doctors) but also hospitals and their administrators.
The courts have also extended the exemption beyond the professional
services 	rendered 	by 	learned 	professionals 	to 	include 	basically
competitive commercial decisions by hospital administrators in relation
to competition and business relations with competitors and suppliers.
1 North Carolina Unfair Business Practice § 14.03 (2023); see also Cameron, 58 N.C.
App. 414, 446–47 (defendant’s obligations in administering hospital qualified as
rendering of professional services under N.C.G.S. § 75-1.1(b)). 	This same logic
applies to someone in the position of Clair.
87. 	Accordingly, Defendants’ Partial Motion to Dismiss is GRANTED with
respect to Plaintiff’s UDTP claim.
CONCLUSION
THEREFORE, IT IS ORDERED as follows:
1. 	Plaintiffs’ Motion to Amend is GRANTED.
2. 	Defendants’ 	Partial 	Motion 	to 	Dismiss 	is 	DENIED 	as 	to
Plaintiff’s claim for fraud.
3. 	Defendants’ Partial Motion to Dismiss is GRANTED with respect
to 	Plaintiff’s 	UDTP 	claim, 	and 	that 	claim 	is 	DISMISSED 	with
prejudice.
4. 	Plaintiff is DIRECTED to file within seven days a Second
Amended Complaint in the form attached to the Motion to Amend,

except that the Second Amended Complaint shall not contain a claim for
UDTP in light of the Court’s dismissal of that claim herein.
SO ORDERED, this the 20th day of February, 2024.
/s/ Mark A. Davis
Mark A. Davis
Special Superior Court Judge for
Complex Business Cases