The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:21-cv-245-MOC-DCK
LAWRENCE E. GULLUM, )
)
Plaintiff, pro se, )
)
vs. ) ORDER
)
ENDEAVOR INFRASTRUCTURE HOLDINGS, )
LLC, et al., )
)
Defendants. )
THIS MATTER is before the Court on cross motions for summary judgment. (Doc.
Nos. 61, 62). For the following reasons, Plaintiff’s summary judgment motion will be DENIED,
and Defendants’ summary judgment motion will be GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND
Plaintiff Gullum is the founder of MCC Development, Inc. (“MCC”), a North Carolina
corporation. (Doc. No. 67 ¶ 2). In December 2017, Defendant Endeavor Infrastructure Holdings,
LLC (“EIH”) purchased 90% of Plaintiff’s stock in MCC. (Doc. No. 61 at 3; Doc. No. 63 at 2).
In exchange for the shares, EIH paid Gullum a $360,000.00 cash down payment and executed
two promissory notes (the “EIH notes”) for the remaining balance of the purchase price. (Doc.
No. 63 at 2). Defendants Buffa and James personally guaranteed both notes. (Doc. No. 61 at 4;
Doc. No. 63 at 2).
Pursuant to the acquisition, the parties also executed a shareholder agreement (“SHA”)
and share purchase agreement (“SPA”). (Doc. No. 61 at 4). Section six of the SHA contains a
liquidated damages provision of $100,000 bearing interest at 8% annually. (Id. at 5–6).
-1-
Following MCC’s acquisition by EIH, Gullum retained a 9% interest in MCC in addition to his
employment as president of the company. (Doc. No. 63 at 2).
In 2019, MCC terminated Plaintiff. (Doc. No. 63 at 3). Thereafter, Gullum and MCC
filed competing suits in North Carolina state court. (Id.). In 2020, MCC, Plaintiff Gullum and
Defendants James, Buffa, and EIH entered into a Settlement Agreement to resolve the state court
litigation. (Doc. No. 1-12). Pursuant to the Settlement Agreement, Gullum released and forever
discharged MCC, James, Buffa, and EIH from any claims arising out of the SHA and SPA,
except for continuing violations of the EIH notes and guarantees. (Doc. No. 1-12; Doc. No. 63 at
3). Under the Settlement Agreement, MCC (a non-party to this action) redeemed Plaintiff’s
remaining 9% stock interest in MCC in consideration for a promissory note (the “MCC note”).
(Doc. No. 63 at 4). MCC executed the MCC note. (Id.). Neither James, Buffa, nor EIH were
party to or guaranteed the MCC note. (Id.).
Defendants James, Buffa, and EIH continued paying on the EIH notes after executing the
Settlement Agreement. (Id.). But in June 2021, Defendants stopped making regular payments on
the EIH notes (Doc. No. 61 at 7), apparently “due to business interruptions brought on by the
COVID-19 pandemic.” (Doc. No. 63 at 4).
II. PROCEDURAL BACKGROUND
Gullum initiated this action against Defendants James, Buffa, EIH, and Endeavor Capital
Management (“ECM”) in September 2021. (Doc. No. 1). Plaintiff successfully served all
Defendants but ECM. In 2022, this Court entered multiple show cause orders regarding
Plaintiff’s failure to serve ECM. (Doc. Nos. 28, 45). To date, service remains defective.
-2-
Defendants James, Buffa, and EIH unsuccessfully moved to dismiss Gullum’s complaint
for lack of jurisdiction. (Doc. Nos. 5, 8, 16). In early 2022, Gullum filed a motion to amend his
original complaint and add several parties, including MCC. (Doc. No. 18). This Court denied
Gullum’s motion to amend. (Doc. No. 23).
On July 27, 2023, Gullum filed his motion for summary judgment. (Doc. No. 61).
Defendants James, Buffa, and EIH responded in opposition. (Doc. No. 65). Gullum filed a
declaration replying to Defendants’ response. (Doc. No. 67).
On July 28, 2023, Defendants James, Buffa, and EIH filed their own summary judgment
motion. (Doc. No. 62). Gullum filed a response in opposition. (Doc. No. 66). This court held a
hearing on the parties’ cross motions for summary judgment on October 17, 2023.
III. LEGAL STANDARD
Motions for summary judgment are assessed against the standard articulated by FED. R.
CIV.P. 56. Summary judgment motions are 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 fact is “material” only if it might affect the outcome of the suit under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The movant for summary judgment bears the burden of persuasion. That burden requires
the movant to identify “those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted). With respect to issues on which the non-movant bears the burden of
-3-
proof, however, the movant may discharge the burden of persuasion by showing “that there is an
absence of evidence to support the nonmoving party’s case.” Id. at 325.
If the movant meets their burden, then it shifts to the non-movant. After the burden shifts,
the non-movant “must set forth specific facts showing that there is a genuine issue for trial.” Id.
at 322 n.3. To meet their burden, the non-movant must adduce sufficient evidence that “a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248;
accord Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir. 1995). Naked
allegations or denials are insufficient. Celotex, 477 U.S. 317, 324.
When considering a motion for summary judgment, the Court views the evidence and any
inferences therefrom in the light most favorable to the non-movant. Anderson, 477 U.S. at 255.
“‘Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658, 2677
(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
IV. DISCUSSION
Except for the amounts allegedly owed under the respective notes, there are few disputed
material facts. See (Doc. No. 66 at 1–2). The key question for both parties’ summary judgment
motions is whether the movant can show that they are entitled to judgment as a matter of law.
a. Plaintiff’s Summary Judgment Motion
Plaintiff claims to state three causes of action. (Doc. No. 1). In fact, Plaintiff’s pro se
complaint is better understood to state two causes of action and a request for injunctive relief.
First, Gullum alleges that Defendants’ failure to disclose certain information relevant to
Defendants Buffa’s and James’ ability to repay the EIH note violated the North Carolina Unfair
-4-
and Deceptive Trade Practices Act (UDTPA). (Doc. No. 1 ¶¶ 29–30); N.C. GEN. STAT. § 75-1.1.
Second, Gullum claims that Defendants’ failure to timely repay the EIH note constitutes a breach
of the SHA, entitling him to recover liquidated damages under section six of that agreement.
(Doc. No. 1 ¶¶ 32–35). Gullum further argues that he is entitled to injunctive relief to enforce
Defendants’ compliance with the SPA.
Plaintiff’s motion for summary judgment does not touch on his UDTPA claim or request
for injunctive relief. Instead, Gullum focuses on his breach of contract claim. Thus, Gullum’s pro
se summary judgment motion is better styled as a motion for partial summary judgment. Even
construing Gullum’s summary judgment motion broadly, however, Plaintiff is not entitled to
summary judgment on any of his claims for relief. Consequently, Plaintiff’s summary judgment
motion will be denied.
Plaintiff cannot show that he is entitled to judgment on any of his claims as a matter of
law. That is because both his UDTPA and breach of contract claims pertain to the SHA and SPA.
By executing the Settlement Agreement, Gullum released and forever discharged Defendants
James, Buffa, and EIH from all claims arising out of the SHA and SPA. (Doc. No. 1-12 ¶ 5).
Plaintiff executed the Settlement Agreement’s release provision in exchange for valuable
consideration: namely, a release of all claims against him by MCC and the Defendants to this
action, as well as the MCC note. “When a release is executed in exchange for valuable
consideration, the release provides a complete defense to an action for damages.” VF Jeanswear
Ltd. P’ship v. Molina, 320 F. Supp. 2d 412, 419 (M.D.N.C. 2004) (citing Talton v. Mac Tools,
Inc., 118 N.C. App. 87, 90 (1995)).
-5-
True, paragraph three of the Settlement Agreement reaffirms that James, Buffa, and EIH
remain obligated under the EIH notes. (Doc. No. 1-12 ¶ 3). And the Settlement Agreement
explicitly excepts “continuing violations of those obligations reaffirmed [t]herein” from the
scope of the release. (Doc. No. 1-12 ¶ 5). But even without drawing inferences in favor of
Defendant non-movant, the language of the release clearly discharges Defendants from any
claims arising under the SHA or SPA. Both of Plaintiff’s claims—Defendants’ purported breach
of the SHA and fraudulent or UPDTA-violative inducement of Gullum to sign the SHA and
SPA—are clearly foreclosed under the settlement agreement. Gullum remains entitled to recover
the value of the EIH note, but he cannot use remedies under the SHA or SPA to do so.
To the extent that Plaintiff seeks to recover payments due under the MCC note from
Defendants to this action, he is also not entitled to judgment as a matter of law. That is because
none of the defendants to this action were party to or guaranteed the MCC note. (Doc. No. 63 at
4). Only MCC executed the MCC note, and MCC is not a party to this action.
For the foregoing reasons, Plaintiff’s summary judgment motion will be denied.
b. Defendants’ Summary Judgment Motion
Defendants argue that they are entitled to judgment as a matter of law on each of
Plaintiff’s claims. Like Defendant’s motion, the Court addresses each of Plaintiff’s claims in
turn.
i. Plaintiff’s Deceptive Trade Practice and Fraud Claims
Gullum alleges that Defendants’ failure to disclose certain information relevant to
Buffa’s and James’ ability to repay the EIH note violated the North Carolina UDTPA. (Doc. No.
1 ¶¶ 29–30); N.C. GEN. STAT. § 75-1.1. Plaintiff further contends that Defendants fraudulently
-6-
concealed these material facts “with the intent to deceive and induce Plaintiff” to accept the EIH
note in partial consideration for his 90% stake in MCC. (Doc. No. 1 ¶ 31). But Defendant notes
that these claims pertain to Defendants James and Buffa’s alleged conduct in 2017 and 2018,
when EIH initially purchased 90% of MCC’s stock from Gullum. (Doc. No. 63 at 6). Plaintiff
expressly waived and released these claims for valid consideration, as documented by the
Settlement Agreement.
Defendants are entitled to judgment as a matter of law that Plaintiff released any UDTPA
and fraud claims related to pre-settlement conduct. Even assuming Defendants violated the
UDTPA and fraudulently induced Plaintiff to execute the SPA and SHA, Defendants are entitled
to judgment against these claims as a matter of law. “A release is an agreement to relinquish a
claim or right to the person against whom the claim exists or the right is to be enforced or
exercised.” VF Jeanswear, 320 F. Supp. 2d at 418. “When a release is executed in exchange for
valuable consideration, the release provides a complete defense to an action for damages.” Id. at
419 (citing Talton, 118 N.C. App. at 90). By executing the settlement agreement for valuable
consideration, Plaintiff provided Defendants with an absolute defense to this action for damages
under the SHA and SPA. See Simmons v. Accordius Health, LLC, No. 1:20-CV-337-MOC-
DCK, 2021 WL 706765, at *3 (W.D.N.C. Feb. 23, 2021) (quoting Jenkins v. Fields, 83 S.E.2d
908, 910 (N.C. 1954); Cunningham v. Brown, 276 S.E.2d 718, 723 (N.C. Ct. App. 1981); Hardin
v.KCS Int'l, Inc., 682 S.E.2d 726, 735 (N.C. Ct. App. 2009)).
Because Plaintiff’s first cause of action pertains to conduct that predates the execution of
the Settlement Agreement, Defendants are entitled to judgment against Plaintiff’s UDTPA and
-7-
fraud claims as a matter of law. Defendants’ summary judgment motion will be granted as to
Plaintiff’s first cause of action (i.e., Plaintiff’s UDTPA and fraud claims).
ii. Plaintiff’s Breach of Contract Claims
Gullum’s second cause of action states breach of contract claims against Defendants
James, Buffa, and EIH. In fact, Plaintiff states three discrete claims for breach: (1) Defendants’
failure to satisfy their obligations under the MCC note; (2) Defendants’ failure to satisfy their
obligations under the EIH note; and (3) Plaintiff’s entitlement to liquidated damages. Plaintiff
also seeks to recover attorney’s fees. (Doc. No. 1 ¶ 35).
Defendants are entitled to judgment against Plaintiff’s first breach claim as a matter of
law. That is because none of the Defendants in this action were parties to the MCC note. With
respect to the MCC note, there is no contract between the parties that Defendant could have
breached. Supplee v. Miller-Motte Bus. Coll., Inc., 768 S.E.2d 582, 590 (N.C. Ct. App. 2015).
Because no contract related to the MCC note exists between Plaintiff and Defendants James,
Buffa, and EIH, Defendants are entitled to judgment against Plaintiff’s MCC breach claim as a
matter of law.
Next, Plaintiff appears to state a claim against Defendants for breach of contract related
to the EIH notes. (Doc. No. 63 at 11). Defendants move for summary judgment against this claim
on the basis that “Plaintiff has not established what amount, if any, is due and owing under the
notes.” (Id.). Defendants maintain that one of the EIH notes has been paid in full, and that the
balance on the second note “if any, is minimal.” (Id.). But viewing facts and drawing inferences
in the light most favorable to the Plaintiff, the Court concludes that there is a genuine dispute as
-8-
to the material fact of the amount Plaintiff is owed under the EIH note. Consequently,
Defendant’s summary judgment motion as to Plaintiff’s EIH note claim will be denied.
Third, Plaintiff claims he is entitled to recover $200,000.000 in liquidated damages under
section six of the SHA for Defendants’ breach thereof. (Doc. No. 1 ¶¶ 32–35). But Plaintiff
clearly waived any claims arising under the SHA—including for liquidated damages—when he
signed the Settlement Agreement. Defendants are entitled to judgment as a matter of law against
Plaintiff’s liquidated damages claim for the same reason they are entitled to judgment as a matter
of law against Plaintiff’s UDTPA and fraud claims.
To clarify: the Court finds that Defendants are entitled to summary judgment against
Plaintiff’s UDTPA, fraud, and liquidated damages claims only because Plaintiff unambiguously
released these claims when he signed the Settlement Agreement. This finding does not alter
Defendants’ obligations to Plaintiff under the EIH notes and EIH Guarantees. The Settlement
Agreement explicitly carves out “continuing violations of those obligations reaffirmed herein”
from the release provision. (Id. ¶ 5). Paragraph three of the Settlement Agreement, helpfully
entitled “Reaffirmation of EIH Notes,” stipulates “EIH, Buffa, and James hereby acknowledge
and reaffirm their obligations under the EIH Notes and EIH Guarantees and the obligation to
continue making the remaining payments thereunder according to the terms thereof.” (Doc. No.
1-12 ¶ 3). Because the EIH notes and guarantees are reaffirmed in the Settlement Agreement,
that Agreement’s release provision does not prevent Gullum from enforcing his entitlements with
respect to the EIH notes and guarantees. Gullum simply cannot do so under the SHA or SPA.
Finally, Defendant is entitled to judgment as a matter of law that Plaintiff cannot recover
attorney’s fees. Plaintiff argues that he is entitled to attorney’s fees “per the contract and NC
-9-
law.” (Doc. No. 1 ¶ 35). Plaintiff waived any contractual right to attorney’s fees under the SHA
or SPA when he executed the Settlement Agreement. As for North Carolina law, Defendant
points out that the relevant statute requires attorney’s fees to be collected by an attorney. (Doc.
No. 63 at 10); N.C. GEN. STAT. § 6-21.2. Plaintiff, however, is proceeding pro se. Consequently,
Defendant is entitled to judgment as a matter of law against Plaintiff’s request for attorney’s fees.
iii. Plaintiff’s Request for Garnishment and Injunctive Relief
Gullum’s third “cause of action” is a request for injunctive relief “to enforce compliance
with the Share Purchase Agreement and personal guarantees.” (Doc. No. 1 ¶ 38). Defendant
correctly notes that injunctive relief and garnishment are not causes of action, but instead
equitable remedies. (Doc. No. 63 at 11). This Court has already found, twice, that Plaintiff is not
entitled to equitable relief. (Doc. Nos. 26, 43). For the reasons articulated in the Court’s Order
Denying Plaintiff’s Motion for a Preliminary Injunction and Restraining Order, Plaintiff’s
requests for injunctive relief must fail. (Doc. No. 26).
Following entry of this Order, Plaintiff will be left with a single claim: breach of contract
with respect to the EIH notes and guarantees. Defendant correctly notes that Plaintiff has a legal
remedy for this claim—a money judgment. (Doc. No. 63 at 11–12 (citing Multi-Channel TV
Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994)).
V. ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Summary Judgment and
Motion for Default Judgment (Doc. No. 61) is DENIED, and Defendants’ motion for Summary
Judgment (Doc. No. 63) is GRANTED in part and DENIED in part. Specifically, Defendants’
motion is GRANTED with respect to Plaintiff’s UDTPA, fraud, and liquidated damages claims,
-10-
Plaintiffs request for attorney’s fees, and Plaintiffs claim for breach of the MCC note.
Defendant’s motion is DENIED with respect to Plaintiffs claim for breach of contract related to
the EIH note and guarantees.
SO ORDERED.
Signed: November 20, 2023
Bkievter SS
Max O. Cogburn Jr &
United States District Judge Foal gale st
-|1-