# Byrd v. Fat City Condominium Owners Association, Inc.

> District Court, W.D. North Carolina · November 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10260539

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** November 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10260539

## How later opinions describe it (automated extraction)

- affirming summary judgment for defendants as to IIED claims where allegations involved screaming and shouting, name-calling, throwing menus, and various hostile acts toward pregnant employee
- holding IIED claim properly dismissed where defendant approached plaintiff in angry and threatening manner while carrying a pistol, shook his hand in plaintiff's face, and said loudly, “I will get you”
- holding that a condominium association owed a fiduciary duty to minority unit owners in a condominium complex in its capacity as a trustee for the sale of a condominium

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-cv-249-MOC-DCK

TEYWONIA BYRD,

Plaintiff,

v.
ORDER

FAT CITY CONDOMINIUM
OWNERS ASSOCIATION, INC.,

Defendant.

THIS MATTER comes before the Court on a Motion for Summary Judgment by
Defendant Fat City Condominium Owners Association, Inc. (Doc. No. 28).
I. BACKGROUND
A. Procedural Background
Plaintiff, a Fat City Condominium resident, brings this action under 42 U.S.C. § 1981,
alleging that Defendant Fat City Condominium Owners Association, Inc. has unequally,
arbitrarily, and capriciously enforced certain condominium declarations, rules, and regulations
against Plaintiff, in violation of her rights guaranteed by federal law. Specifically, Plaintiff
alleges she suffered discriminatory enforcement of restrictive provisions controlling alterations
to limited common elements. According to Plaintiff, Defendant only began enforcing certain
restrictive provisions after Defendant’s Board of Directors (“Fat City Board” or “Defendant
Board”) singled out Plaintiff for selective enforcement. Plaintiff Byrd claims that Defendant
Board did not take enforcement action against several violations, including exterior door
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modifications, committed by other residents. Nevertheless, Plaintiff was, and continues to be,
fined for making what she claims was a similar modification. Plaintiff alleges that Defendant’s
selective enforcement of the condominium declaration’s restrictive provisions constitutes
unlawful discrimination.
Plaintiff’s Complaint states three causes of action: (1) race discrimination in violation of

to 42 U.S.C. § 1981; (2) intentional infliction of emotional distress under North Carolina law;
and (3) breach of fiduciary duty under North Carolina law. Defendant brings counterclaims for
breach of contract and declaratory judgment, seeking an order from the Court requiring Plaintiff
to pay the fines accrued and attorney’s fees.
On July 6, 2023, Defendant filed the pending summary judgment motion. (Doc. No. 28).
Plaintiff filed a response on August 18, 2023, Defendant filed a Reply on September 7, 2023, and
the Court held a hearing on October 23, 2023. (Doc. Nos. 35, 38). This matter is ripe for
disposition.
B. Factual Background

i. Summary
Defendant Fat City Condominium Owners Association (“Fat City”) is a non-profit
corporation, operating under North Carolina Law. A Declaration of Condominium recorded on
February 1, 2013, in Book 28038 at Page 267 of the Mecklenburg County Public Registry,
governs Fat City and its residents.1 All unit owners and occupants at Fat City are bound by the
Declaration of Condominium (“Declaration”), which prohibits modifications to the
condominium units without submission in writing of an architectural (“ARC”) form to the board.

1 The North Carolina Condominium Act, N.C.G.S. § 47C-1-101 et. seq. applies to Fat City as a
duly organized condominium association. N.C.G.S. § 47C-1-101.
2
(Ex. 9). Article XI, Section 11.1(c) of the Declaration states, “[a]ll rules and regulations shall be
equally and uniformly applicable to all Owners and occupants.” Violations of the Declaration
result in fines assessed against the condominium owners.
Plaintiff Teywonia Byrd, an African American woman and Fat City condominium owner,
alleges that Defendant racially discriminated against her by fining Byrd thousands of dollars for

installing a Ring peephole camera on her condominium door. (Byrd Dep. 118:25–119:15;
122:15–123:25). Plaintiff maintains that that Defendant does not similarly enforce the
condominium declarations against white residents. Plaintiff contends that other units’ violations
of the Declaration concerning limited common elements went unpunished. (Byrd Dep. 124:1–
124:18). Plaintiff claims to have witnessed additional violations of the Declaration including: (i)
umbrellas and lights on balconies; (ii) cones hanging from balconies; (iii) displays of political
and/or national flags; (iv) unapproved decorations and/or door mats; and (v) unapproved color
locks; keypad/digital locks. (Compl. ¶ 34).
Plaintiff also alleges that other Fat City residents harassed her and otherwise intentionally

caused her to suffer emotional distress. Based on her factual allegations, Plaintiff brings claims
against Fat City for Section 1981 race discrimination, intentional infliction of emotional distress,
and breach of fiduciary duty. Defendant denies Plaintiff’s claims and has counterclaimed for
breach of contract and a declaratory judgment enforcing the fines that Defendant has imposed
against Plaintiff for violating the Declarations.
ii. Plaintiff’s Evidence on Summary Judgment
On or around June 2020, Plaintiff bought a condo at Fat City as her primary residence.
(Byrd Dep. at 8:3–6). Fat City Condominiums has 26 residential units. (Id. at 15:10–16). Plaintiff
is only one of two African Americans living at Fat City.
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Plaintiff felt unsafe in her condominium because there were numerous homeless people
in the area. (Id. at 9–10). Consequently, Plaintiff had a Ring peephole camera installed on her
front door on or around June 18, 2020. (Id. at 122:6–9). The camera was always visible and
never hidden to passers-by. (Id. at 193:21–194:1). Plaintiff claims she had no reason to believe
installing a Ring camera on her front door was prohibited because other residents had also

altered the exterior of their doors. (Id. at 25:20–26:6).
Plaintiff alleges that on July 17, 2020, a former Fat City resident raped her inside her
condo. (Byrd Dep. at 19:5–19:17). Plaintiff attempted to press criminal charges, but there was
insufficient evidence, as Defendant’s security cameras either did not capture video of the resident
entering or exiting her home, or the captured video had been recorded over. (Id. at 10:21–11:7;
18:1–8; 22:6–22:16).
Plaintiff was elected as Vice President of the Board in March 2021 and served in that
capacity through February 2022. (Byrd Dep. at 8:17–8:22; 9:12–9:13). Sometime in late 2021, a
now-deceased white woman named Isabella Zaliagris joined the Board. (Id. at 51:4–9). Isabella

lived on Plaintiff’s floor and complained about Plaintiff’s Ring camera. (Id. at 49:1). Plaintiff
maintains that, when Isabella complained about Plaintiff’s Ring camera, Isabella was herself in
violation of the Declaration’s requirements regarding limited common elements. (Doc. No. 35
Ex. 6). Plaintiff maintains that several other white unit owners were also in violation of the
declarations, but Defendant did not enforce the declarations against them. (Id.).
Unit owner Manny Ndingwan (“Manny”) also served on the Board with Plaintiff.
(Manny Dep. at 24:8–12; 39:23–25; 40:1–7; 45:2–9). As early as November 22, 2020, Manny
became aware of Plaintiff’s Ring camera. (Doc. No. 35 Ex. 4). Plaintiff alleges that, sometime
after she installed her Ring camera, Manny tried to kiss Plaintiff. Plaintiff refused because
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Manny is married. (Byrd Dep. at 151:15–17; 158:25–159:10). Manny also asked Plaintiff to
spend a weekend with him at his condominium in Greensboro, North Carolina. (Byrd Dep. at
156:6–13). Plaintiff claims that her denial of Manny’s proposition led him to abuse his influence
on the Defendant Board against Plaintiff. (Byrd Dep. at 149:14–22).
Plaintiff also suggests that Bryce Shearer (“Bryce”), who served as Vice President of Fat

City board when Plaintiff Byrd became a unit owner, knew about modifications to the doors of
other units, but he did not fine white residents for these violations. (See, Doc. No. 35 Ex. 5).
Plaintiff also presented evidence regarding Austin Tinsley (“Austin”), a member of the
Board from June 2020 until March 2021. (Byrd Dep. at 38:10–14). Austin regularly complained
about Plaintiff parking two cars in the parking lot. (Id. at 130:14–16). The Board sent Austin a
cease-and-desist letter in August 2021, but he continued harassing and intimidating Plaintiff,
eventually leading a campaign to remove Plaintiff from the Board. (Id. at 77:19–23; 109:25;
110:1–16). Austin also accused Plaintiff of brandishing a gun at him. (Id. at 160:8). At an
owner’s association meeting with board members present, Austin and another unit owner

criticized Plaintiff for reporting residents illegally parking in the designated handicap spaces.
Austin also made racist remarks while serving on the board. (Byrd Dep. 40:7–21; 41:7–17).
Specifically, Austin allegedly stated that “you can’t reason with Black women.” (Id. at 40:12–
17). Plaintiff was anonymously mailed a bag of gummy male genitalia and told to “eat a bag of
dicks.” (Id. at 63:13–15).
The homeowners removed Plaintiff from the board on February 4, 2022. (Id. at 198:22–
23). Plaintiff engaged a local mediator, resulting in Bryce Shearer and other board members
yelling at Byrd during a board meeting and stating that she had no right to spend board time
discussing her decision. (Byrd Dep. 64:22–66:6; 68:15–22).
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Hawthorne Management, Fat City’s management company, initially refused to cite
Plaintiff for the Ring camera violation on the grounds that the board’s request was “blatantly
targeted” and “blatantly discriminatory.” (Doc. No. 35 Ex. 6). Eventually, Hawthorne
Management decided to cite Plaintiff for her violation and informed Plaintiff that she would be
fined $100, plus an additional $100 per day after five days, if she did not remove her Ring

camera. (Compl. ¶ 39). According to Plaintiff, other residents in violation of the Declaration,
rules, regulations and or covenants, received notices after the fact but were not subjected to a fine
for their respective violations, with the exception of one unit owner. (Byrd Dep. at 165:19–25;
166:1–3). Plaintiff contends that Defendant started to send violation warnings to other residents
only after Plaintiff complained about selective enforcement. (Byrd Dep. at 125:22–126:1; see
also, Doc. No. 35 Ex. 6).
II. STANDARD OF REVIEW
Summary judgment is granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When determining whether a genuine issue has been raised, the court must construe all
inferences and ambiguities against the movant and in favor of the non-moving party. United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment has the initial burden of demonstrating that there is
no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant has made this threshold demonstration, the non-moving party, to survive the motion for
summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather,
6
the non-moving party must demonstrate specific, material facts exist that give rise to a genuine
issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-
movant’s position is insufficient to withstand the summary judgment motion. Anderson, 477
U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to
preclude granting the summary judgment motion. Dash v. Mayweather, 731 F.3d 303, 311 (4th

Cir. 2013). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56
provides, in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.

FED. R. CIV. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the
non-movant, the non-movant must show the existence of a factual dispute on every essential
element of his claim.
III. DISCUSSION
A. Plaintiff’s Section 1981 Claim
Title VII and Section 1981 prohibit intentional racial discrimination. 42 U.S.C. § 2000e-
2(a). Section 1981 provides, in pertinent part, that “all persons within the jurisdiction of the
United States shall have the same right…to make and enforce contracts…as is enjoyed by white
citizens.” 42 U.S.C. § 1981. The right extends to “the enjoyment of all benefits, privileges,
7
terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
To establish a Section 1981 claim, the plaintiff must show that (1) she is a member of a
racial minority; (2) the defendant had an intent to discriminate based on race; and (3) the
discrimination concerned one or more of the activities enumerated in the statute. Bobbitt by
Bobbitt v. Rage Inc., 19 F. Supp. 2d 512, 517 (W.D.N.C. 1998) (quoting Bellows v. Amoco Oil

Co., 118 F.3d 268, 274 (7th Cir. 1997)).
Under the McDonnell Douglas burden-shifting framework applied in Title VII and
Section 1981 cases, the plaintiff has the burden of establishing a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once the plaintiff
establishes her prima facie case, the burden of production shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the challenged action. Merritt v. Old Dominion Freight
Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). If the defendant carries this burden, the plaintiff
then must prove by a preponderance of the evidence that the reasons offered by the defendant
were not its true reasons, but instead mere pretext for discrimination. Id.

A plaintiff may avoid summary judgment on a discrimination claim by “presenting direct
or circumstantial evidence” that raises a genuine issue of material fact. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Here, the Court finds that genuine issues of
disputed facts preclude summary judgment on Plaintiff’s Section 1981 discrimination claim, as
Plaintiff has presented some evidence that white owners were treated differently from Plaintiff
with respect to violations.2 The Court will deny the summary judgment motion as to Plaintiff’s

2 Defendant argued at the hearing on summary judgment that if white owners were not cited it
was because Plaintiff, as a Board member responsible for issuing violation notices, did not send
the violation notices. This is a contested factual issue that Defendant can explore at trial through
cross-examination.
8
Section 1981 claim.
B. Plaintiff’s Claim for Intentional Infliction of Emotional Distress
Under North Carolina law, the essential elements of a claim for intentional infliction of
emotional distress are “(1) extreme and outrageous conduct by the [defendant]; (2) which is
intended to and does in fact cause (3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73,

82 (1992) (citing Dickens v. Puryear, 302 N.C. 437, 452 (1981)). Whether conduct constitutes
extreme and outrageous behavior is initially a question of law for the court. Simmons v. Chemol
Corp., 137 N.C. App. 319, 325 (2000). “To establish the essential element of extreme and
outrageous conduct, the conduct must go beyond all possible bounds of decency and ‘be
regarded as atrocious, and utterly intolerable in a civilized community.’” Id. (quoting Wagoner v.
Elkin City Sch. Bd. of Educ., 113 N.C. App. 579, 586 (1994)). “Mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities” will not be found to constitute extreme and
outrageous conduct. See Jonson v. Bollinger, 86 N.C. App. 1, 6 (1987) (quoting Briggs v.
Rosenthal, 73 N.C. App. 672, 677 (1985) (holding IIED claim properly dismissed where

defendant approached plaintiff in angry and threatening manner while carrying a pistol, shook
his hand in plaintiff's face, and said loudly, “I will get you”); see also Smith-Price v. Charter
Behavioral Health Sys., 164 N.C. App. 349, 355 (2004) (affirming summary judgment on IIED
claim by supervisor against former employee where supervisor confronted employee, and
employee responded by threatening to make accusations against her, yelled at her, walked off his
assignment and when he returned threw a package of papers at supervisor); Hogan v. Forsyth
Country Club Co., 79 N.C. App. 483, 493–94 (1986) (affirming summary judgment for
defendants as to IIED claims where allegations involved screaming and shouting, name-calling,
throwing menus, and various hostile acts toward pregnant employee).
9
Plaintiff fails to show that the conduct she experienced goes beyond all possible bounds
of decency and is considered atrocious and utterly intolerable in a civilized community. At most,
Plaintiff has alleged: (1) some residents vaguely and without specifics “harassed and belittled”
her for reporting discriminatory enforcement and illegal parking; (2) a married board member
propositioned her to spend a weekend with him; and (3) an unknown individual mailed her a bag

of gummy male genitalia with a crude note. While these alleged acts may be in bad taste, they
are, at most, “[m]ere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities” and are not beyond all possible bounds of decency. Accordingly, Defendant is
entitled to judgment as a matter of law against Plaintiff’s claim for intentional infliction of
emotional distress.
More importantly, even if the Court were to find the acts cumulatively constitute
“extreme and outrageous conduct,” they do not support a claim against Defendant. All or most of
the allegedly infringing conduct alleged by Plaintiff was done by individuals, often residents.
Moreover, the primary bad actors in Plaintiff’s account were not on the Board of Defendant

when Plaintiff suffered alleged emotional damages. And even if they had been, Plaintiff cannot
point to any evidence that Defendant authorized these residents to act on its behalf or had
sufficient control over the actions of these residents.
“Two essentials are present in a principal-agent relationship: (1) Authority, either express
or implied, of the agent to act for the principal, and (2) the principal’s control over the agent.
Agency is the fiduciary relation which results from the manifestation of consent by one person to
another that the other shall act on his behalf and subject to his control, and consent by the other
so to act.” Colony Assocs. v. Fred L. Clapp & Co., 60 N.C. App. 634, 637–38 (1983) (citations
omitted). Here, the residents did not have express or implied authority to act for Defendant.
10
Further, the Defendant did not have authority over the residents. Accordingly, there was no
principal-agent relationship through which Defendant can be held liable for individual board-
members’ conduct allegedly causing Plaintiff’s emotional damages.
Moreover, even if the individuals who engaged in the alleged offending conduct were
considered agents of Defendant, Defendant is not liable for their torts. “As a general rule,

liability of a principal for the torts of his agent may arise in three situations: (1) when the agent’s
act is expressly authorized by the principal; (2) when the agent’s act is committed within the
scope of his employment and in furtherance of the principal’s business; or (3) when the agent’s
act is ratified by the principal.” Hogan, 79 N.C. App. at 491.
Here, there is no evidence that the Board, which included Plaintiff, authorized the acts of
the offending individuals. There is also no evidence the acts by the alleged offending individuals
were in furtherance of Defendant’s business as an owners’ association. Finally, there is no
evidence that Defendant ratified any act by any of the offending individuals. Accordingly, even
if the alleged conduct was “extreme and outrageous,” Defendant is not liable for such conduct.

Therefore, Defendant is entitled to judgment against Plaintiff’s claim for intentional infliction of
emotional distress as a matter of law.
C. Plaintiff’s Claim for Breach of Fiduciary Duty
Plaintiff claims that Defendant breached its fiduciary duty by: (a) failing to promptly fix
allegedly malfunctioning cameras; (b) discriminatorily and selectively enforcing violations of the
Declarations; (c) admonishing Plaintiff for reporting violations of the Declarations and reporting
illegal parking; (d) accusing Plaintiff of shutting down the camera network for the property; and
(e) allowing continued harassment of Plaintiff by other residents.
A claim for breach of fiduciary duty requires a plaintiff to show that “(1) the defendant
11
owed the plaintiff a fiduciary duty; (2) the defendant breached that fiduciary duty; and (3) the
breach of fiduciary duty was a proximate cause of injury to the plaintiff.” Sykes v. Health
Network Sols., Inc., 372 N.C. 326, 339 (2019). “For a breach of fiduciary duty to exist, there
must first be a fiduciary relationship between the parties.” Dalton v. Camp, 353 N.C. 647, 651
(2001) (citations omitted). There are two kinds of fiduciary relationship: (1) those arising from

legal relations such as attorney and client, broker and client, partners, principal and agent, trustee
and cestui que trust (de jure fiduciary relationship), and (2) those that exist as a fact, in which
there is confidence reposed on one side, and the resulting superiority and influence on the other
(de facto fiduciary relationship). See S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189
N.C. App. 601, 613 (2008).
The North Carolina Condominium Act makes clear that officers and members of the
board owe fiduciary duties to the association and the unit owners. See N.C. GEN. STAT. § 47C-3-
103(a) (“In the performance of their duties, the officers and members of the executive board shall
be deemed to stand in a fiduciary relationship to the association and the unit owners and shall

discharge their duties in good faith, and with that diligence and care which ordinarily prudent
persons would exercise under similar circumstances in like positions.”). However, nothing in the
statutory language of Section 47C-3-103(a) suggests that the association itself owes fiduciary
duties to the unit owners. See, id.; see also, Howe v. Links Club Condo. Ass’n, 263 N.C. App.
130, 148 (2018) (holding that a condominium association owed a fiduciary duty to minority unit
owners in a condominium complex in its capacity as a trustee for the sale of a condominium);
Progress Point One-B Condo. Ass'n, Inc. v. Progress Point One Prop. Owners Ass’n, Inc., No. 14
CVS 467, 2015 WL 859833 (N.C. Super. Mar. 2, 2015) (finding no fiduciary duty owed by the
condominium association where the association filed a complaint against a property owners
12
association alleging, among other things, breach of fiduciary duty related to the alleged improper
collection of assessments). Thus, Section 47C-3-103(a) does not create a de jure fiduciary
relationship.
Plaintiff has also failed to present evidence showing that a de facto fiduciary relationship
exists between her and Defendant. Accordingly, as the Defendant association does not owe

Plaintiff any fiduciary duties, it cannot breach any such duties. Thus, Defendant is entitled to
judgment against Plaintiff’s claim for breach of fiduciary duty as a matter of law.
D. Defendant’s Counterclaims for Breach of Contract and Declaratory
Judgment.
Finally, the Court denies summary judgment as to the counterclaims because these
counterclaims depend on whether a jury finds that Defendant selectively enforced the
Declarations against Plaintiff based on her race in violation of Section 1981.
IV. CONCLUSION
For the reasons stated herein, the Court denies Defendant’s summary judgment motion in

part and grants it in part.
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion for Summary Judgment, (Doc. No. 28), is DENIED in part and
GRANTED in part. Plaintiff’s Section 1981 discrimination claim shall proceed to
trial, but her claims for intentional infliction of emotional distress and breach of
fiduciary duty are dismissed. Furthermore, because the Court finds that there are
genuine issues of disputed fact as to the Section 1981 claim, the Court denies
Defendant’s summary judgment motion on its counterclaims for breach of contract
and declaratory judgment.
13
Signed: November 20, 2023

orton.
Max O. Cogburn J 20
United States District Judge ial gg fe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260539. Public record. Not legal advice.