Mohr Partners, Inc. v. Elior, Inc.

Mohr Partners, Inc. v. Elior, Inc., 2025 NCBC 24.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY 23 CVS 2657

MOHR PARTNERS, INC., a Texas
corporation,

Plaintiff,
ORDER AND OPINION ON CROSS-
v. MOTIONS FOR SUMMARY
JUDGMENT AND DEFENDANT’S
ELIOR, INC., a Delaware MOTION FOR LEAVE TO AMEND
corporation,
ANSWER
Defendant.

THIS MATTER is before the Court on Defendant’s Motion for Summary

Judgment (ECF No. 55), Defendant’s Motion for Leave to Amend Answer (“Motion to

Amend,” ECF No. 58), and Plaintiff’s Motion for Summary Judgment (ECF No. 62)

(collectively, the “Motions”).

The Court, having considered the Motions and exhibits, the parties’ briefs, the

arguments of counsel, the applicable law, and all appropriate matters of record,

CONCLUDES that Defendant’s Motion to Amend should be DENIED; Defendant’s

Motion for Summary Judgment should be GRANTED in part and DENIED in

part; and Plaintiff’s Motion for Summary Judgment should be GRANTED in part,

DENIED in part, and DEFERRED in part.

Maynard Nexsen PC by David A. Luzum and James C. Smith, and C.
Kyle Pugh, P.C., by Kyle Pugh for Plaintiff Mohr Partners, Inc.

Williams Mullen, by Killian Wyatt and Camden R. Webb for Defendant
Elior, Inc.

Davis, Judge.
INTRODUCTION

1. In this Opinion, the Court addresses several issues concerning an

exclusive representation agreement between a real estate broker and its client.

Specifically, the Court must determine (1) whether the agreement entitled the broker

to receive a commission for real estate transactions handled solely by the client; and

(2) whether the unique circumstances concerning two discrete transactions in which

the broker performed services justified the client’s refusal to pay a commission to the

broker.

FACTUAL AND PROCEDURAL BACKGROUND

2. “The Court does not make findings of fact on motions for summary

judgment; rather, the Court summarizes material facts it considers to be

uncontested.” McGuire v. LORD Corp., 2021 NCBC LEXIS 4, at **1–2 (N.C. Super.

Ct. Jan. 19, 2021) (cleaned up).

3. Plaintiff Mohr Partners, Inc. (“Mohr”) is a Texas corporation authorized

to do business in North Carolina as a real estate firm. (Countercls. ¶ 15, ECF No.

37.)

4. Defendant Elior, Inc. (“Elior”) is a Delaware corporation authorized to

do business in North Carolina. Elior’s principal place of business is in Mecklenburg

County, North Carolina. (Am. Compl. ¶ 2, ECF No. 36.)

5. Elior is a hospitality company that provides contract catering and frozen

pre-packaged meals to educational institutions, hospitals, senior care facilities,

correctional institutions, and other governmental units. (Hunt Dep., at 24–25, ECF
No. 144.3.) As of spring 2020, Elior had approximately 100 real estate holdings—

both owned and leased properties—in North America. (McNamara Dep., at 18–19,

ECF No. 144.4.)

6. Historically, Elior did not employ third parties to manage its real estate

portfolio. Instead, Elior handled real estate transactions internally, including

negotiating sales and leases. (Mohr Rule 30(b)(6) Dep., at 52, ECF No. 144.1.)

7. In the spring of 2020, Elior’s leadership team recognized that the

shutdowns associated with the COVID-19 pandemic would likely result in Elior

having a significant amount of empty, unused commercial office space for which it

would be responsible for paying rent. As a result, Elior’s executives decided to retain

a real estate broker to handle transactions involving Elior’s leases and owned

properties. (Hunt Dep. at 44–45.)

8. Oliver Poirot, the chief executive officer of Elior, contacted Robert Mohr,

the founder and chief executive officer of Mohr, and requested that Mohr provide real

estate services for Elior. (Countercls. ¶ 17; Poirot Dep., at 47–48, ECF No. 57.5.)

9. On 12 June 2020, Mohr prepared and sent a draft written contract to

Elior. (Mohr Rule 30(b)(6) Dep., at 35–37.)

10. From June through July 2020, the parties negotiated the terms of the

contract for the real estate services to be provided by Mohr. (Mohr Rule 30(b)(6) Dep.,

at 35.)
11. On 10 August 2020, Elior and Mohr executed an “Exclusive

Representation Agreement” (“ERA,” ECF No. 80). The most relevant portions of the

ERA stated as follows:

WHEREAS, Client [Elior] desires Mohr to be their Exclusive Real
Estate Agent across North America for real estate services:

1. EXCLUSIVE RIGHT TO REPRESENT. Client hereby retains
Mohr as its Exclusive Real Estate Agent as to Client’s entire North
American real estate portfolio, and grants to Mohr the exclusive right
to represent Client on the following terms and conditions: Provided,
however, that any such exclusivity shall not apply to any brokerage
arrangement that may have been previously entered into by Client
as set forth in Exhibit B. In addition, such exclusivity shall not apply
to any locations or segment projects as also set forth in Exhibit B.

2. TERM. The term of this Agreement shall commence the day this
Agreement is executed and shall be in effect for any transaction
completed within three (3) years from the date of this Agreement (the
“Initial Term”). Following the Initial Term, this Agreement shall
continue without interruption until one party gives the other party
at least sixty (60) days advance written notice of its intent to
terminate this Agreement. However, Client and Mohr shall have the
right to terminate this Agreement with or without Cause at any time
with nine (9) months advance written notice to the other party. If a
transaction is not completed within thirty (30) days past the
expiration or termination of this Agreement, Mohr will submit to
Client a written list of all properties that have been submitted to
Client or evaluated by Client during the term of this Agreement. In
the event a transaction is completed on any of the listed properties
within one hundred eighty (180) days of the expiration of this
Agreement, Client agrees that Mohr will be its agent as described
above.

3. CLIENT RESPONSIBILITIES. Client shall cooperate with Mohr
and agrees to refer all phone inquiries, offerings, and correspondence
relating to commercial space, including early termination/buy-out
negotiations, sales and acquisitions, sale-leasebacks, dispositions or
subleases or assignments, new leases or renewals of existing leases,
build-to-suit projects including lease and acquisition of land for such
project, directly to Mohr. Mohr shall be the main point of contact on
behalf of Client for all real estate related negotiations. Relative to
such negotiations and completion of the preceding assignments,
Client agrees that Mohr shall receive the following fees as further
described on Exhibit A attached hereto.

4. MOHR RESPONSIBILITIES. Mohr shall use its best efforts to
implement cost savings strategies in the real estate portfolio of Client
including but not limited to optimization of space use, negotiations
with existing landlords to restructure and/or terminate existing
leases, sublease or otherwise dispose of existing leases, secure
proposals on any properties or transaction restructure to meet
Client’s criteria and shall assist Client in analyzing all the options
presented to Client. As the overall real estate services integrator for
Client, Mohr can utilize local co-brokers in various markets to
achieve maximum cost reductions for Client.

(ERA, ¶¶ 1–4.)

12. Following the execution of the ERA, Elior provided Mohr with a

comprehensive list of its leases and details regarding expiration dates and monthly

rent expenses. (Macnoll Dep., at 96–104, ECF No. 144.2.)

13. Over the next two years, Mohr served as a real estate broker for Elior

on various transactions. Elior’s primary point of contact at Mohr was its General

Counsel, Steve Macnoll. (Countercls. ¶¶ 22–23.)

14. Unbeknownst to Mohr, however, during the time period in which the

ERA was in effect, Elior handled certain additional real estate transactions in-house

without utilizing the services of Mohr (or any other broker). 1 As a result, Mohr was

not paid any commission for these transactions.

1 Because the parties in their briefs refer to this practice as “self-servicing,” the Court utilizes

this term as well throughout this Opinion.
15. Elior’s failure to pay a commission to Mohr for these self-serviced

transactions forms the basis for one of the issues of dispute between the parties in

this case.

16. The remaining two disputed issues both arise out of Elior’s acquisition

in May 2016 of a company called Preferred Meals Systems (“Preferred Meals”), an

Illinois-based manufacturer of frozen food products. (Countercls. ¶ 10.)

17. Beginning in December 2021, Elior began making plans to sell the

Preferred Meals business. (Countercls. ¶ 33.) The sale of Preferred Meals differed in

character from Elior’s usual lease termination projects, as Elior needed to sell its

assets to buyers who could continue operations, take on union employees, and

minimize Elior’s liability under certain contracts. (Countercls. ¶ 34.)

18. Preferred Meals’ real estate holdings included properties in a number of

different locations nationwide. The two locations that are relevant to this case are

its properties in Berkeley, Illinois (the “Berkeley Property”), and Moosic,

Pennsylvania (the “Moosic Property”). (Countercls. ¶ 38.)

19. As discussed in extensive detail later in this Opinion, Mohr (through

Macnoll) performed services on Elior’s behalf regarding transactions involving both

the Berkeley Property and Moosic Property. However, with regard to both

transactions (albeit for different reasons), Elior refused to pay Mohr commissions

pursuant to the ERA.

20. On 7 February 2023, Mohr initiated this action by filing a Complaint

(ECF No. 3), in Mecklenburg County Superior Court. Mohr subsequently filed an
Amended Complaint on 1 August 2023, which contained a claim for breach of contract

against Elior based on the unpaid commissions referenced above.

21. This matter was designated as a mandatory complex business case and

assigned to the undersigned on 21 March 2023. (ECF Nos. 1–2.)

22. In response, Elior filed an Answer and Counterclaims on 14 April 2023,

asserting counterclaims for breach of contract and recoupment. (ECF No. 13.) Elior

subsequently filed new Counterclaims on 7 August 2023, reasserting those same

claims and adding a new counterclaim for breach of fiduciary duty.

23. On 10 June 2024, Elior filed a Motion for Summary Judgment and a

Motion for Leave to Amend. On that same date, Mohr filed a cross-Motion for

Summary Judgment.

24. The Court held a hearing via WebEx on the Motions on 23 September

2024 at which all parties were represented by counsel.

25. The Motions have been fully briefed and are now ripe for resolution.

LEGAL STANDARD

26. It is well established that “[s]ummary judgment is proper ‘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.’ ” Morrell v. Hardin

Creek, Inc., 371 N.C. 672, 680 (2018) (quoting N.C. R. Civ. P. 56(c)). “[A] genuine

issue is one which can be maintained by substantial evidence.” Kessing v. Nat’l

Mortg. Corp., 278 N.C. 523, 534 (1971). “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.” Daughtridge v. Tanager

Land, LLC, 373 N.C. 182, 187 (2019) (cleaned up).

27. On a motion for summary judgment, “[t]he evidence must be considered

‘in a light most favorable to the non-moving party.’ ” McCutchen v. McCutchen, 360

N.C. 280, 286 (2006) (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470

(2004)). “[T]he party moving for summary judgment ultimately has the burden of

establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear

Constr. Co., 313 N.C. 488, 491 (1985).

28. The party moving for summary judgment may satisfy its burden 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 [the] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000). “If the

moving party satisfies its burden of proof, then the burden shifts to the non-moving

party to ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Lowe

v. Bradford, 305 N.C. 366, 369–70 (1982) (quoting N.C. R. Civ. P. 56(e)). If the

nonmoving party does not satisfy its burden, then “summary judgment, if

appropriate, shall be entered against [the nonmovant].” United Cmty. Bank (Ga.) v.

Wolfe, 369 N.C. 555, 558 (2017) (quoting N.C. R. Civ. P. 56(e)).

29. When a party requests offensive summary judgment on its own claims

for relief, “a greater burden must be met.” Brooks v. Mt. Airy Rainbow Farms Ctr.,
Inc., 48 N.C. App. 726, 728 (1980). The moving party “must show that there are no

genuine issues of fact, that there are no gaps in his proof, that no inferences

inconsistent with his recovery arise from the evidence, and that there is no standard

that must be applied to the facts by the jury.” Parks Chevrolet, Inc. v. Watkins, 74

N.C. App. 719, 721 (1985). For that reason, it is “rarely . . . proper to enter summary

judgment in favor of the party having the burden of proof.” Blackwell v. Massey, 69

N.C. App. 240, 243 (1984).

ANALYSIS

I. Elior’s Motion for Leave to Amend

30. The Court elects to address Elior’s Motion for Leave to Amend first.

31. In this Motion, Elior requests leave from the Court to file an amended

answer to Mohr’s Amended Complaint. Specifically, Elior seeks to amend its Answer

to assert that “no contract was formed between Elior and Mohr because the parties

never reached a meeting of the minds on a material term of the ERA.” (Mot. Amend,

at 1.)

32. Motions to amend are governed by Rule 15 of the North Carolina Rules

of Civil Procedure. Rule 15(a) provides, in relevant part, as follows:

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 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).
33. Although Rule 15 states that leave shall be freely given, “the rules still

provide some protection for parties who may be prejudiced by liberal amendment.”

Vitaform, Inc. v. Aeroflow, Inc., 2021 NCBC LEXIS 79, at **11 (N.C. Super. Ct. Sept.

16, 2021) (quoting Henry v. Deen, 310 N.C. 75, 82 (1984)). As a result, an “amendment

may be denied for reasons of undue delay, bad faith, dilatory motive, repeated failure

to cure deficiencies, undue prejudice, and futility of amendment.” Id. (cleaned up).

“The burden is upon the opposing party to establish that [it] would be prejudiced by

the amendment.” Id.

34. The decision whether to grant or deny a motion to amend is within the

discretion of the trial court, and its decision will not be reversed unless it constitutes

a manifest abuse of its discretion. Id.

35. “In deciding if there was undue delay, the trial court may consider the

relative timing of the proposed amendment in relation to the progress of the

lawsuit.” Wilkerson v. Duke Univ., 229 N.C. App. 670, 679 (2013) (affirming trial

court’s denial of a motion to amend filed thirteen months after the initial complaint

was filed).

36. On 31 May 2023, this Court entered a Case Management Order (“CMO,”

at 7, ECF No. 22), which provided that the deadline for the parties to file a motion to

amend pleadings was 1 August 2023.

37. Discovery in this case closed on 31 January 2024. (CMO, at 5.)

38. Elior has offered the Court no valid reason or justification for the

substantial delay in filing its Motion to Amend.
39. Elior concedes that in both its original and amended Answers, it

admitted that the ERA was a valid and binding contract between the parties.

40. Both parties conducted discovery based on the premise that the ERA

was a valid contract in all respects. As a result, Mohr did not assert (and had no

reason to assert) alternative quasi-contractual claims such as causes of action for

unjust enrichment or quantum meruit. Therefore, Elior’s Motion to Amend is not

only untimely but, if granted, would result in tangible prejudice to Mohr.

41. Accordingly, for these reasons, the Court concludes that Elior’s Motion

to Amend should be DENIED. See Trail Creek Inves., LLC v. Warren Oil Holding

Co., LLC, 2023 NCBC LEXIS 128, at **13 (N.C. Super. Ct., Oct. 13, 2023) (denying

motion to amend where moving party’s amendment would fundamentally change

theory of case).

II. Motions for Summary Judgment

42. The Court next turns to the parties’ cross-Motions for Summary

Judgment.

43. At the outset, it is helpful to identify the precise issues upon which the

parties claim entitlement to summary judgment.

44. Mohr seeks offensive summary judgment on the following issues: (i)

whether the ERA required Elior to pay Mohr commissions for the real estate

transactions that Elior self-serviced; (ii) whether Elior breached the ERA by failing

to pay Mohr its commission for work performed on the Berkeley Transaction; and (iii)

whether Elior breached the ERA by failing to pay Mohr its commission for work
performed on the Moosic Transaction. In addition, Mohr seeks summary judgment

defensively in connection with Elior’s counterclaims for breach of contract and breach

of fiduciary duty. 2

45. Elior, in turn, requests that the Court enter summary judgment in its

favor defensively on Mohr’s claim for breach of contract in its entirety.

46. The issues addressed by the parties in their respective briefs overlap to

a significant degree. Therefore, rather than analyzing each party’s arguments

individually, the Court instead deems it appropriate to address the issues and

arguments advanced by both parties together.

A. Mohr’s Entitlement to Commissions on Transactions Self-
Serviced by Elior

47. The issue of whether Elior was required to pay Mohr commissions for

transactions that were self-serviced by Elior hinges on whether the ERA is properly

found to be an “exclusive right to sell” agreement (as Mohr contends) or, alternatively,

an “exclusive agency” agreement (as Elior asserts).

48. North Carolina’s appellate courts recognize the distinction between

these two types of brokerage agreements. An exclusive agency agreement is one that

“precludes the principal from hiring another agent to sell the same property, but does

not preclude the principal himself from procuring a customer without paying

compensation.” Peeler Ins. & Realty, Inc., v. Harmon, 20 N.C. App. 39, 42 (1973)

(cleaned up).

2 Although Elior also purported to assert a counterclaim for recoupment, the Court construes

the request for recoupment as an attempt to obtain a remedy rather than as an independent
legal claim.
49. Conversely, an exclusive right to sell contract not only prevents the

owner from using a different real estate broker but also “precludes the principal

himself from competing with the agent.” Id. Because an exclusive right to sell

contract provides a more significant restriction on the property owner’s rights,

language creating this type of agreement must be explicitly set out therein. See id.

(“Since alienation has become such an integral part of property, it is only proper that

the [exclusive right to sell] contract specifically negative this right before it is lost.”). 3

50. Our Court of Appeals has explained the consequences to an owner when

an exclusive right to sell contract is utilized.

[The owner] is liable for the commission which would have accrued if the
broker had obtained a purchaser during the period of the listing. The
broker need not show that he could have performed by tendering an
acceptable buyer, or that he was the procuring cause of the sale. The
owner may breach the agreement by arranging a sale in violation of the
agreement or by action which renders the broker’s performance
impossible.

Joel T. Cheatham, Inc., v. Hall, 64 N.C. App. 678, 681 (1983).

51. The Court observes that North Carolina is not an outlier in its approach

to differentiating between these two types of brokerage agreements. See, e.g., DiSalle

Real Est. Co., v. Howell, 117 Ohio App. 3d 113, 117 (1996) (“[A]n agreement of agency

for the sale of property should be construed, if possible, to give the owner himself the

right to sell his property without incurring liability for the payment of a

commission[.]”); Lockhart v. Holiday Homes of St. John, Inc., 678 F.2d 1178, 1186 (3d

3 The Court notes that at the 23 September hearing, counsel for Mohr conceded that under

North Carolina law, this default rule preserves an owner’s right to self-service absent express
language waiving that right in a brokerage agreement. (Hearing Tr., at 43.)
Cir. 1982) “[A]n owner should not be deemed to have relinquished the right to sell his

own property through his own efforts except by clear and unequivocal language in

the contract.”); Foltz v. Begnoche, 222 Kan. 383, 388 (1977) (“Additionally, we are

persuaded that an ‘exclusive right to sell,’ by its very nature should be created only

by clear and unambiguous language.”).

52. In its Motion, Mohr takes the position that the ERA is an exclusive right

to sell contract and that, as a result, Elior had no ability to self-service any real estate

transactions (with the exception of those transactions that fell within the exemptions

expressly set forth in Exhibit B to the ERA).

53. In support of this argument, Mohr asserts that the following language

in the ERA emphasizes the exclusivity to be conferred upon Mohr:

WHEREAS, Client [Elior] desires Mohr to be their Exclusive Real
Estate Agent across North America for real estate services:

1. EXCLUSIVE RIGHT TO REPRESENT. Client hereby retains Mohr
as its Exclusive Real Estate Agent as to Client’s entire North American
real estate portfolio, and grants to Mohr the exclusive right to represent
Client on the following terms and conditions: Provided, however, that
any such exclusivity shall not apply to any brokerage arrangement that
may have been previously entered into by Client as set forth in Exhibit
B. In addition, such exclusivity shall not apply to any locations or
segment projects as also set forth in Exhibit B.

...

3. CLIENT RESPONSIBILITIES. Client shall cooperate with Mohr and
agrees to refer all phone inquiries, offerings, and correspondence
relating to commercial space, including early termination/buy-out
negotiations, sales and acquisitions, sale-leasebacks, dispositions or
subleases or assignments, new leases or renewals of existing leases,
build-to-suit projects including lease and acquisition of land for such
project, directly to Mohr. Mohr shall be the main point of contact on
behalf of Client for all real estate related negotiations. Relative to such
negotiations and completion of the preceding assignments, Client agrees
that Mohr shall receive the following fees as further described on
Exhibit A attached hereto.

(ERA, ¶¶ 1, 3.)

54. Mohr contends that the only carve-outs under the ERA that allowed

Elior to either self-service or use another broker in connection with its North

American real estate transactions are those set out in Exhibit B, which provided as

follows:

Brokerage agreements previously entered into by Client:

• Sublease or Direct Lease replacement of the existing 242
Salem Street location in Woburn, MA

Perishable Management Services (PMS)
Joel Miller/Melissa Chaput–Brokers
321 Columbus Avenue #7
Boston, MA 02116

• Sublease or Direct Lease replacement of 211 South Hill
Road in Brisbane, CA

Scott Delphey
Food Properties Group
1313 Foothill Blvd.
Suite 4
La Canada, CA 01011

Exclusivity will not apply to the following locations or segment projects;
however, Client can review these locations or segment projects with
Mohr to mutually agree upon real estate services as appropriate. Client
agrees to honor all terms in the Representation Agreement for any
locations or segment projects that Mohr provides real estate services for.

• Client locations or segment projects with monthly lease
expenses of less than five thousand dollars ($5,000) per
month.

(ERA, Ex. B.)
55. Mohr argues that the language in Paragraph 3 of the ERA requiring

Elior to refer to Mohr all communications regarding its real estate portfolio satisfies

the requirement that a property owner “specifically negative” its right to self-service.

(Pl.’s Br. Supp. Pl.’s Mot. Summ. J., at 17–18, ECF No. 63.)

56. Mohr further notes that this provision is preceded by the word “shall,”

which, Mohr contends, serves to eliminate all discretion that Elior would otherwise

possess to handle its own transactions, thereby avoiding an obligation to pay a

commission to a broker.

57. Elior, conversely, argues that the ERA is instead an exclusive agency

agreement—most basically, because the ERA fails to contain language expressly

excluding Elior’s right to self-service its own real estate transactions. Based on the

absence of such explicit language, Elior contends, the ERA only requires that Mohr

be paid a commission for all transactions in which (i) Elior chooses to engage a broker;

and (ii) the exclusions contained in Exhibit B are inapplicable.

58. Elior also contends that this interpretation is supported by the initial

language in the first numbered paragraph of the ERA, which reads: “[Elior] retains

Mohr as its Exclusive Real Estate Agent.” (ERA ¶ 1.) This language, Elior asserts,

makes clear that the ERA merely makes Mohr its exclusive broker for those

transactions for which Elior decides to use a broker. 4

4 Elior also notes that the title of the agreement is “Exclusive Representation Agreement,”

which—according to Elior—suggests that the word “exclusive” modifies the term
“representation”—thereby confining the concept of exclusivity to Elior’s selection of a broker.
59. In addition, Elior points to language in the ERA providing that Mohr

would only be compensated “upon completion of the preceding assignments.” (ERA ¶

3.) Elior argues that the inclusion of the word “assignments” implies that Mohr would

not be working on all of Elior’s real estate transactions and that, instead, Elior would

have discretion in determining whether to bring Mohr into a transaction as opposed

to handling the transaction in-house.

60. For these reasons, Elior takes the position that it was entitled to self-

service its own transactions any time it desired and that, in such circumstances, Mohr

was not entitled to be paid a commission.

61. After careful consideration of the parties’ arguments, the language of

the ERA, and the applicable case law, the Court agrees with Elior on this issue.

62. As stated above, North Carolina law requires express language

relinquishing an owner’s right to sell its own property in order for a brokerage

agreement to be deemed an exclusive right to sell agreement.

63. Not only is there no such language expressly relinquishing this right,

but, in fact, there is no reference to self-servicing in the ERA at all.

64. Moreover, contrary to Mohr’s argument, Exhibit B is most logically read

as simply setting out specific properties (or categories of properties) that are not

subject to the ERA at all—meaning that Elior would be permitted to retain a different

broker for those transactions. Indeed, in paragraph 1 (titled “EXCLUSIVE RIGHT

TO REPRESENT”), the ERA recites Mohr’s retention as Elior’s “Exclusive Real

Estate Agent” and then states as follows: “Provided, however, that any such
exclusivity shall not apply to any brokerage arrangement that may have been

previously entered into by [Elior] as set forth in Exhibit B. In addition, such

exclusivity shall not apply to any locations or segment projects as also set forth in

Exhibit B.” (ERA ¶ 1.) 5

65. The language in the ERA relied upon by Mohr falls short of expressly

waiving Elior’s self-service rights. In essence, Mohr is asking the Court to discern an

implied relinquishment of such rights. The Court must decline that invitation

because such an approach is not permitted under North Carolina law.

66. Although not a ground for its ruling on this issue, the Court observes

that this result is also consistent with the course of dealing between the parties as

reflected in the summary judgment record. Macnoll was the employee of Mohr who

worked most closely with Elior in providing broker services pursuant to the ERA.

The record contains a number of communications between Macnoll and Elior’s

representatives in which Macnoll requested that Elior assign certain transactions to

Mohr. 6 The implication from these communications is that the parties recognized

the fact that the ERA did not preclude Elior from opting to self-service its own

transactions (instead of seeking brokerage assistance from Mohr).

67. In light of the Court’s conclusion that the ERA did not require Elior to

pay commissions to Mohr for transactions in which Elior engaged in self-servicing,

5 Specifically, the first two carve-outs in Exhibit B identify properties in which Elior appears

to have used a different real estate broker. The third carve-out is for properties where the
monthly lease expense is less than $5,000.

6 (See, e.g., ECF Nos. 57.4 and 128.1.)
Elior’s Motion for Summary Judgment on this issue is GRANTED, and Mohr’s

Motion for Summary Judgment on this issue is DENIED.

B. Moosic Transaction

1. Mohr also asserts that Elior breached the ERA by failing to pay Mohr

the commission it earned for its work on the Moosic Transaction.

2. As noted earlier, the Moosic Transaction relates to the sale of Preferred

Meals’ manufacturing facility in Moosic, Pennsylvania, which was owned by Elior.

(Hunt Dep., at 155–59, 161, 167, 175.) At the Moosic location, frozen meals were

manufactured and stored, and were later shipped to distribution centers and then

delivered to schools. (Hunt Dep., at 197–98.)

3. Elior makes two arguments in support of its position that it does not owe

a commission to Mohr. First, it asserts that the sale of the Moosic Property was not

within the scope of the ERA because it occurred within the context of a much larger

merger and acquisition—namely, the sale of its Preferred Meals subsidiary. Second,

Elior contends that it did not actually assign the Moosic Transaction to Mohr.

4. The Court rejects both of these arguments.

5. “The elements of a claim for breach of contract are the existence of a

valid contract and a breach of that contract’s terms.” JT Russell & Sons, Inc. v.

Russell, 2024 NCBC LEXIS 35, at **9 (N.C. Super. Ct. Feb. 28, 2024) (citing Poor v.

Hill, 138 N.C. App. 19, 26 (2000)).

6. In analyzing the parties’ arguments, it is necessary to understand the

factual context in which the Moosic Transaction occurred.
7. Elior’s business was significantly impacted by the COVID-19 pandemic.

Due to the nationwide closure of schools, Elior’s subsidiary, Preferred Meals, lost

much of its customer base during this time period. Preferred Meals had suffered

revenue losses of $50 million in both 2021 and 2022. (Hunt Dep., at 198.)

8. Jeffrey Hunt, the chief financial officer of Elior, testified that Elior

sought to sell its Preferred Meals division through a single merger and acquisition

transaction. (Hunt Dep., at 149–50.)

9. Such a transaction, Hunt testified, would be complex because Preferred

Meals’ business operations were themselves complicated. Preferred Meals was a

going concern that operated in multiple locations, maintained a number of employees,

and had existing executory contracts for the production of food products as well as

union contracts and leases of real property, equipment, vehicles, and subleases.

10. Hunt, in his testimony, characterized the sale of Preferred Meals as

“multidimensional chess” and noted that the disposition of Preferred Meals would not

be “a clean, straight real estate transaction.” (Hunt Dep., at 173.)

11. In its first argument, Elior contends that because the Moosic Property

was sold in connection with Elior’s sale of its Preferred Meals Systems subsidiary, it

falls outside the scope of the ERA in that the transaction involving the Moosic

Property was merely one part of a larger, complex transaction encompassing multiple

other issues that were outside the expertise of a real estate broker such as Mohr.

12. The problem with this argument is that there is no language in the ERA

that exempts real estate transactions occurring as the result of a sale of a business.
Elior does not dispute the fact that the Moosic property was within Elior’s North

American real estate portfolio during the relevant time period. Moreover, it was not

within the carve-outs contained in Exhibit B to the ERA.

13. The parties could have added language to the ERA excluding

transactions taking place within the context of a larger business transaction, but did

not do so. This Court does not possess the authority to judicially insert such a

provision. See, e.g., Trail Creek Invs. at *14–15 (“Notably, the Court lacks the

authority to judicially insert language into an unambiguous contract (language that

the parties themselves did not see fit to include) based simply on arguments as to

their alleged intent.”).

14. Nor is the Court persuaded by Elior’s second argument, which asserts

that the Moosic Transaction was never formally assigned to Mohr. The record paints

a much different picture, clearly establishing that Mohr was, in fact, assigned to sell

the Moosic Property by Elior and that its agent, Macnoll, performed brokerage

services on Elior’s behalf for this purpose.

15. Hunt testified that, with regard to the sale of the Moosic Property, Elior

was “on the clock and wanted to get to resolution as fast as we could, because we had

shut down a business, we’re not earning revenue, so we wanted to resolve these and

move as fast as we possibly could.” (Hunt Dep., at 177, 200.)

16. On 22 May 2022, Hunt wrote in an email to Paul Altobelli (the president

of Preferred Meals):
Olivier [Poirot] okay’d using Mohr for Berekely [sic] and Moosic for
‘brokered’ services. 7 We can still entertain ‘direct’ offers from existing
clients (Co-Pack) and prospective buyers from Rubik (e.g. Whitsons).
Steve from Mohr will ask to visit both properties in person.

(Hunt Dep., at 177.) 8

17. On 23 May 2022, Macnoll sent an email to Hunt with the subject line

“[External] Moosic and Berkeley – Plans and Equipment List” that stated in relevant

part as follows:

Jeff,
I am trying to get copies of plans (hard copies and electronic AutoCAD)
and equipment lists for Moosic and Berkeley. Attached are samples
from what I received for Commerce California. Anything you can find
and send to me would be very helpful. Getting of [sic] a lot of calls from
brokers with interested parties. News travels really fast.
(Ex. 17, ECF No. 82.)

18. In an internal email sent by Hunt to Poirot on that same date, Hunt

stated: “Mohr (Steve) is willing to help us sell Moosic and find company to preserve

jobs. He is in NY City this week visiting family and asked if he could visit Moosic. . .

[S]hould we short term pause Moosic with Mohr and/or others?” (Ex. 16, at 3, ECF

No. 81.)

19. On 24 May 2022, Hunt responded to Macnoll’s email from the previous

day as follows: “Green light on Mohr moving forward on Berkeley and Moosic.” (Ex.

17, ECF No. 82.)

7 Hunt testified that the phrase “brokered services” referred to using a real estate agent.

(Hunt Dep., at 179.)

8 In addition, Goodman, whose job duties involved Preferred Meals’ real estate activities,
was told that “if we’re going to do any brokered transactions, we will be using Mohr.” (Hunt
Dep., at 186.)
20. In addition, Macnoll testified that Hunt instructed him during a phone

call regarding Moosic that same day to “[p]ut it on the market. Sell it.” (Macnoll

Dep., at 88.)

21. Macnoll proceeded to “market[ ] the [Moosic] building for sale.” (Macnoll

Dep., at 165.) In his deposition, he testified that he performed the following tasks:

(1) he took pictures of the building; (2) he created sales brochures; (3) he listed the

building on CoStar, a commercial real estate database; (4) he solicited prospects for

purchase of the property; and (5) reviewed letters of interest, fielded calls, and

corresponded by email with potential purchasers. (Macnoll Dep., at 166–67)

22. On 26 May 2022, Macnoll emailed Hunt the following:

On Moosic, I have had 16 inquiries so far. A lot of demand for this. I
will price high. Most/all are brokers that should have clients in tow. I
have not called most of them back since they will want information on
the plant that I don’t have yet. I have yellow highlighted [a] few users
that I know of which could be interesting. . . . Let me know what else
you need.
(Ex. 18, at 1, ECF No. 83.)

23. Mark Goodman, a Preferred Meals employee, sent a 27 June 2022 email

to Poirot, Hunt, Brittany Mayer-Schuler (an attorney for Elior), Devon Hilton (Elior’s

senior vice-president), and Macnoll, with the subject line “Fwd: Moosic, PA Fresh N

Lean”:

Offer from Fresh n Lean. Very disappointing. Comps they are using
need to be analyzed and others presented. They are valuing building
around $35–$40 per foot, which is half what I think it is and way less
than what Steve valued it at.

Opening offer but they are planning to visit Thursday so we need to
discuss quickly. . . . Added Steve as comps will be the key to negotiations.
(Ex. 19, ECF No. 84.)

24. Hilton sent an email to Macnoll on 28 June 2022 asking the following

question: “Can you let me know when we should expect to get the comps for Moosic?

We need this to go back to Fresh-n-Lean today.” (Ex. 21, ECF No. 86.)

25. Macnoll responded via email to Elior that same day by providing sales

“comps” for the Moosic facility. He concluded that the average sales price for similar

facilities was $111 per square foot. Macnoll also included an attachment analyzing

nineteen comparable food processing and cold storage facilities. (Ex. 22, at 1–6, ECF

No. 87.)

26. Goodman sent Macnoll’s figures on the Moosic facility to Fresh N Lean

by email on 28 June 2022. (Ex. 39, at 1, ECF No. 104.)

27. Additionally, on 28 June 2022, Macnoll sent a separate email to Elior

stating his plans to drive to the Moosic facility the following week from New York

City to take photographs for marketing purposes and provide property tours for

interested purchasers. (Ex. 23, ECF No. 88.)

28. In a series of Microsoft Teams messages between Altobelli and Hilton

on 29 June 2022, the two Elior executives acknowledged Macnoll’s planned trip to

visit the Moosic Property and debated the prospect of completing the sale without

Mohr’s assistance:

Altobelli: Hilco is 5–6% for lease negotiations

Altobelli: They are running market comps now, then they will get
back to me on what they think

Hilton: Same as Mohr
Hilton: Mohr is dragging their feet to give us comps for Moosic

…

Altobelli: Shocked OP [Olivier Poirot] let Mohr into Moosic, Mark can
get it to 7M
Altobelli: without Steve

Altobelli: why pay him anything

Hilton: We probably won’t, and OP would probably take it at 7 with
inventory and people

Altobelli: We will see how it plays out. I see you told Steve he can go to
Moosic

Hilton: Olivier likes the duel [sic] effort. I hope Mark can get them up
before next week

Hilton: And then we call off Mohr

(Ex. 29, at 2–3, ECF No. 94.)

29. On 6 July 2022, Fresh N Lean offered Elior $7,500,000 for the purchase

of the Moosic facility. (Ex. 24, at 2, ECF No. 89.)

30. The following day, Macnoll sent an email to Elior, providing a redlined

copy of the Fresh N Lean offer with his comments. (Ex. 24, at 1.) In those comments,

Macnoll entered Mohr’s contact information at Paragraph 13, titled “Real Estate

Commission,” and included the following language:

Seller is represented by Mohr Partners, Inc. (“Mohr”). Mohr shall be
responsible for paying at Closing any broker that Purchaser identifies
as its broker representative in this transaction pursuant to Mohr’s
national listing agreement dated July 24, 2020 with Seller.
(Ex. 25, at 12, ECF No. 90.)
31. The contract for the Moosic sale was signed by Poirot on 16 July 2022.

(Ex. 11, at 39, ECF No. 76.) Paragraph 13 of the contract did not, however, contain

the above-quoted language proposed by Macnoll; to the contrary, it stated that no real

estate commissions were due for the transaction. (Ex. 11, at 33.)

32. Fresh N Lean was ultimately unable to close the sale of the Moosic

Property. Instead, it introduced Elior to a prospective new third-party buyer who

purchased only the Moosic real estate. (Countercls. ¶¶ 91–92.)

33. No real estate agent or broker received credit for procuring the buyer for

the Moosic Property. (Countercls. ¶ 95.)

34. Macnoll emailed Hilton on 28 September 2022, inquiring about the

closing date for the sale of the Moosic Property to Fresh N Lean. (Ex. 41, ECF No.

106.)

35. On 29 September 2022, Hilton responded to Macnoll’s email of 28

September by simply stating: “We closed.” (Ex. 41.)

36. On 4 October 2022, Macnoll emailed Hunt and Brian Herrmann (Elior’s

corporate controller/treasurer) with an attached invoice regarding the sale of the

Moosic Property. The invoice referenced the sales price paid as $7,500,000 and

sought payment to Mohr in the amount of $450,000 (based on a 6% commission). (Ex.

20, at 2, ECF No. 85.)

37. To date, Mohr has not received any commission from the Moosic

Transaction.
38. The Court has painstakingly reviewed the record regarding the Moosic

Transaction and concludes that no genuine issue of fact exists on the issue of whether

Mohr is owed a commission. The uncontradicted evidence shows that Elior assigned

the Moosic Transaction to Mohr’s agent—Macnoll—and that Macnoll performed

brokerage services on Elior’s behalf regarding the sale of the property. Therefore,

under the ERA, Mohr was entitled to receive a commission for this transaction.

1. Accordingly, the Court concludes that Mohr’s Motion for Summary

Judgment is GRANTED on the issue of whether Elior breached the ERA by failing

to pay Mohr a commission for its work on the Moosic Transaction. To the extent that

Elior seeks summary judgment on this same issue, its motion is DENIED.

2. The Court will DEFER until a later date a ruling regarding the precise

amount of the commission to which Mohr is entitled.

C. Berkeley Transaction

108. The Berkeley transaction is the subject of competing breach of contract

claims by the parties. Mohr contends that Elior breached the ERA by failing to pay

the commission for the transaction to which Mohr was entitled under the ERA based

on Macnoll’s work on Elior’s behalf.

109. Conversely, Elior (although conceding that it assigned the Berkeley

Transaction to Mohr) argues that Macnoll mistakenly conveyed an unauthorized offer

during negotiations he was conducting on Elior’s behalf with a third party that left

out a key term valued by Elior. As a result of this mistake, Elior asserts, not only

was it excused from any obligation to pay Mohr a commission as to Berkeley, but also
that it possesses affirmative claims against Mohr for breach of contract and breach

of fiduciary duty.

110. Once again, an understanding of the relevant factual chronology is

necessary in order to understand the parties’ respective arguments.

111. In its production kitchens (including the one at the Berkeley, Illinois

location), Preferred Meals manufactured “fresh and frozen snacks, meals and entrees

for contract catering and home delivery.” (Countercls. ¶¶ 10–11, 38)

112. Although Berkeley and Moosic were both parts of the Preferred Meals

division, the Berkeley facility differed in at least one key respect from the Moosic

Property. Unlike the Moosic location, the Berkeley location was not owned by

Preferred Meals. Instead, it was leased from an entity called Provender Partners

(“Provender”). (Hunt Dep., at 259.)

113. In 2020, when Elior engaged Mohr to handle its real estate portfolio,

Preferred Meals was in default under a number of its facility leases, including the

lease for the Berkeley location. (Mohr Rule 30(b)(6) Dep., at 16–17, 22–23, 188;

McNamara Dep., at 50–52.)

114. The Preferred Meals lease for the Berkeley location was a “triple-net

absolute lease [which] required [Preferred Meals] to repair the parking lot [and]

maintain the roof.” (Macnoll Dep., at 79.) Macnoll testified that Preferred Meals,

however, “did not do that. [It was] in default. [It was] being sued repeatedly by

Provender since 2020.” (Macnoll Dep., at 79.)
115. In June 2020, Elior engaged Mohr to negotiate a restructuring of the

Berkeley lease with Provender. (McNamara Dep., at 53.)

116. This restructuring was complicated by the fact that

finding an assignee to take the lease from Preferred Meals required
approval of the landlord of the Berkeley facility, Provender . . . Elior
needed to settle a legal dispute with Provender over the facility; transfer
inventory and contracts; transfer truck leases, equipment, and related
liabilities, mitigate employee and related union issues by trying to sell
a continued business that transferred the largest number of employees
to the buyer; and crucially, find a buyer to satisfy Elior’s potentially
expensive contractual commitment to produce ready-to-eat packaged
sandwiches for Classic Delight, LLC that extended into 2023.

(Countercls. ¶ 44.)

117. From December 2021 until May 2022, Elior sought to sell Preferred

Meals to a single buyer. (Countercls. ¶ 35.)

118. One prospective buyer of Preferred Meals was Whitsons Culinary Group

(“Whitsons”), but Elior and Whitsons could not agree on terms for a global sale of the

Preferred Meals division. (Countercls. ¶ 36.)

119. In May 2022, Elior decided to “sell the Preferred Meals business in

pieces to potential buyers.” (Countercls. ¶ 37.)

120. Although Whitsons had previously declined to purchase the entirety of

Preferred Meals, it expressed an interest in assuming the lease obligations for the

Berkeley facility in June 2022. (Countercls. ¶ 45.)

121. During that time period, Macnoll presented Provender with letters of

intent from potential lease assignees, Amity Meat and Hello Fresh. (Mohr Rule

30(b)(6) Dep., at 193–94.)
122. Macnoll testified that later he learned that Poirot preferred the lease

assignee to be Whitsons. (Mohr Rule 30(b)(6) Dep., at 194.) Hilton informed Macnoll

in late June 2022 that Elior anticipated an offer from Whitsons in this regard. (Mohr

Rule 30(b)(6) Dep., at 195.)

123. On 29 June 2022, Hilton contacted Macnoll with details about a

proposed deal with Whitsons, providing a term sheet and asking Macnoll to contact

Provender to negotiate the lease assignment. (Countercls. ¶ 47.)

124. On 12 July 2022, Poirot, Michael Bailey (chairman of Elior’s board of

directors), Hilton, and Tom Heim (one of Elior’s attorneys) held a conference call with

Macnoll to discuss the terms of a proposed lease assignment to Whitsons for

Provender’s approval. (Mohr Rule 30(b)(6) Dep., at 198.) Hilton testified that during

this call the key terms of the offer were reiterated to Macnoll, which consisted of the

following: (1) the lease assignment to Whitsons would include a release of Elior’s

guaranty of the lease; (2) Elior would pay six months’ rent to Provender as a lease

termination fee; (3) Elior would replace or repair the roof and the parking lot at the

facility; and (4) Whitsons would not be bound by an automatic renewal of the lease,

and instead would have the option to terminate the lease at the conclusion of the

lease term. (Hilton Dep., at 190.)

125. Macnoll, conversely, testified as follows regarding the discussion that

took place during the conference call:

I said that Provender was not going to easily approve any lease
assignment. They had just filed a declaratory judgment a couple of days
prior to that against Elior, requesting the Court’s approval of a litigator
[sic], that they do not have to approve anything. So I updated the team
on July 12th that it was going to be a hard negotiation for the lease
assignment approval.
...

I informed the team at the time that in May Elior had come to terms
with Provender prior to them announcing the shutdown, that Elior had
agreed to a five-year extension of the lease, not an option to extend, but
a five-year extension right now to take the lease five years past the
current expiration date of 2026 with the rent for those back five years to
be determined at fair market value. Other settlement terms were Elior
would repair the roof and the parking lot for their obligations of the lease
and take six months’ rent as a settlement fee – settlement.

(Mohr Rule 30(b)(6) Dep., at 199–200.)

126. Later in his testimony, Macnoll denied that a required term of the offer

he was asked by Elior to tender to Provender was that Whitsons would have the

option—but not the obligation—to extend the lease at the end of the lease term.

Instead, he testified, “I was instructed to take a firm five-year extension at fair

market value, not an option, but an extension back to Provender.” (Mohr Rule

30(b)(6) Dep., at 203.)

127. Bailey sent an email to Poirot, Heim, Hilton, Altobelli, and Macnoll on

12 July 2022 stating the following:

I have spoken with Paul [a representative of Whitsons] about the
building.

My first question was are you fully up to speed with the annual cost of
the building and he said I think so and went on to say $1.4M so I said
and Taxes? And he said $300K. I told him $600k and his reaction was
Ok. I reminded him that we have a very difficult landlord and he was
likely to dispute Whitson’s financials (for the hell of it) because the rent
is 50% below market.

I also mentioned we (Elior) were on the hook for some significant repairs
which we will take care of. I asked him about his long term strategy for
the building and his view on wanted [sic] to be there in 3 or 5 years time.
His reply was we are looking at this space for the long term. He
recognizes that he could not find anything remotely like it and he clearly
has spent a lot of time looking.

I then suggested that we might need to get creative to get the landlord
to agree to assigning the lease. I told him we had a couple of options
that may help. The first being to take a lease extension for 5 years at
market rent with an option to walk if the new rent was unacceptable.
He is fine with this. His comment was well for an additional $1M it’s
well worth it.

I then explained Option 2 — pay more rent in years 3 and 4. He was less
keen on that but his answer to Option one tells me that he would
consider doing it.

(Ex. 30, at 2, ECF No. 95.)

128. Macnoll responded to Bailey’s email on that same date by stating: “Yes,

I will convey our settlement offer as discussed with Option 1 (5-year extension at

FMV) to the Landlord ASAP.” (Ex. 30, at 1.)

129. On 13 July 2022, Macnoll sent the following email to Poirot, Hilton,

Altobelli, Bailey, and Heim:

Team, Provender just approved our proposed settlement framework as
I outlined below:
Settlement offer only relating to Provender approval of lease
assignment with Whitsons:
• Elior to pay for entire roof replacement
• Elior to pay for entire parking lot repaving
• Full release of PMC [Preferred Meals] and Elior Inc.
• Elior to pay 6 months’ of base rent to Provender
• Elior/PMC to extend lease for 5 years at FMV (FMV to be determined in
2026)
Several details/mechanics to work out but we will get there. Provender
said they will need the Parent Guaranty.

(Ex. 10, at 10) (emphasis in original).)

130. Poirot responded to Macnoll’s 13 July email, in relevant part, as follows:
Brilliant! Sounds like another miracle! Well done team.
As you said Steve full speed ahead to solidify the deal with W, and then
solidify the deal with our LL.

(Ex. 10, at 10.)

131. Macnoll testified that following his own 13 July email, “Michael Bailey

sent an email shortly thereafter, something to the effect that he would–did not

understand what was offered to Provender. He didn’t understand. He had a different

understanding of what I was authorized to offer to Provender.” (Mohr Rule 30(b)(6)

Dep., at 215.)

132. According to Macnoll, another conference call was held between

Macnoll, Heim, Hilton, Bailey, and Poirot. During that call, the Elior team instructed

Macnoll to return to Provender and renegotiate the lease extension term such that it

would not be a firm five-year extension, but that Whitsons would have an option to

renew the lease at a later date. (Mohr Rule 30(b) Dep., at 219–20.)

133. Elior contends that the offer Macnoll communicated to Provender was

not fully consistent with the terms he had been authorized to convey. In particular,

Elior asserts that Macnoll’s failure to articulate that Whitsons did not want to be

bound by an automatic renewal of the lease was a serious error because Whitsons

(during its negotiations with Elior) had not agreed to extend the lease term at the

end of five years. (Hilton Dep., at 186–89.)

134. Hilton testified that from Elior’s perspective, the lease extension issue

served as leverage regarding other components of the lease assignment, including the

required parking lot and roof repairs. (Hilton Dep., at 250–52.)
135. Macnoll, however, testified that no one from Elior characterized his

offer to Provender as unauthorized or the result of a misunderstanding. “They told

me to go back and there was – they had spoken to Whitsons after they authorized my

offer and Whitsons did not want to do a firm five-year extension and to go back to

Provender.” (Mohr Rule 30(b)(6) Dep., at 219.)

136. On 15 July 2022, Provender offered to accept the Whitsons assignment,

but included the following terms, which were different than those communicated by

Macnoll on 12 July 2022: “[A] twenty-five percent contingency on Elior’s repair

payment, increasing the proposed termination fee to $900,000, and automatically

extending the term of the lease by five years at to-be-determined fair market rent.”

(Countercls. ¶70.)

137. Elior contends that Whitsons’ desire to reserve the right to decline

renewing the lease once it expired in 2026 was a material term of the negotiations

with Provender and that Macnoll was not authorized to make or accept any offer that

did not include this term.

138. As a result of their belief that Macnoll had failed to properly carry out

his instructions, Hilton and Bailey took over the negotiations with Provender

regarding the lease assignment. (Countercls. ¶¶ 61, 73–76.)

139. On 18 July 2022, Bailey sent the following email to Poirot, Hilton,

Altobelli, Heim, and Macnoll:

As I mentioned, I got PW [a representative of Whitsons] to agree to a 5
year extension on the Berkeley lease based on market rates at that time.
(2026) I have been back to John Long at Provender and got him to agree
to the terms laid out in Steve Macnoll’s letter. Needless to say he asked
me for 8 months rent not 6 and I told him that was not what we agreed
He accepted that, so we have a deal in principle.

(Ex. 10, at 15.)

140. In this lawsuit, Elior asserts that Macnoll’s unauthorized offer to

Provender negatively impacted the final settlement that was reached to assign the

lease to Whitsons. This is so, Elior maintains, because the unauthorized offer became

the new baseline for Elior’s negotiations with Provender. (Countercls. ¶ 77.)

141. Despite Elior’s belief that Macnoll had misstated the terms of the offer

to Provender, it continued to seek Macnoll’s assistance in negotiating the terms of

Elior’s required roof and parking lot repairs. (Countercls. ¶ 78.)

142. Throughout July 2022, Macnoll continued to negotiate with Provender

on behalf of Elior regarding roof and parking lot repairs that were part of the Berkeley

Transaction. Macnoll ultimately secured a deal with Provender pursuant to which

Elior would repair—rather than replace—the roof. (Hilton Dep., at 206–11.)

143. Elior obtained an estimate of $1,500,000 to replace the roof at the

Berkeley facility. (Ex. 31, at 6, ECF No. 96.)

144. Through Macnoll’s negotiations with Provender, the landlord agreed to

accept a repair of the roof, at a cost of $625,000, rather than a full roof replacement.

(Ex. 31, at 2; Ex. 33, ECF No. 98.)

145. On 8 September 2022, Macnoll sent an email to Hunt with an invoice for

$945,848.45 for the work performed by Mohr relating to the Berkeley lease
assignment. Mohr’s calculated fee represented 10% of the gross savings of

$9,458,484.48 delivered to Elior due to the lease assignment. (Ex. 26, ECF No. 91).

146. On 5 October 2022, Hunt sent Macnoll Elior’s breakdown of a $256,143

fee it was willing to pay Mohr for the Berkeley transaction. Notably, Elior discounted

Elior’s gross savings by subtracting the amounts paid by Elior for the roof repair

($679,126), the driveway repair ($392,000), and the lease termination fee ($702,304),

arriving at a gross savings figure of $7,685,055. In addition, Elior applied a 67%

“participation adjustment” to the gross savings figure to account for the work done by

Bailey on the lease assignment negotiations with Provender. (Ex. 27, ECF No. 92.)

147. Mohr rejected Elior’s calculation of the fee it was owed and, to date, has

not received any payment at all for the Berkeley Transaction.

148. With regard to its breach of contract claim, Mohr contends that it is

entitled to summary judgment on the issue of whether it is entitled to receive its full

commission as calculated under the ERA.

149. In its counterclaim for breach of contract regarding the Berkeley

transaction, Elior contends that Macnoll’s tender of an unauthorized offer to

Provender changed the negotiation framework and forced Elior to pay unanticipated

higher costs to Provender to complete the assignment of the Berkeley facility lease to

Whitsons. As a result, Elior contends, it is entitled to an award of compensatory

damages at trial.

150. Relatedly, Elior argues that Macnoll—as Elior’s real estate agent—owed

a fiduciary duty to Elior during his negotiations with Provender and that Macnoll’s
mistake as to the terms of the offer he had been authorized to make constitutes a

breach of that fiduciary duty. This allegation forms the basis for Elior’s breach of

fiduciary duty counterclaim.

151. The Court will now analyze the parties’ respective claims regarding the

Berkeley Transaction.

1. Mohr’s Claim for Breach of Contract

152. The parties agree that a genuine issue of material fact exists as to

whether Macnoll’s conveyance of the offer in his negotiations with Provender

constituted a breach of the ERA. Nevertheless, Mohr asks the Court to grant

summary judgment in its favor on its breach of contract claim seeking payment of its

full commission for the Berkeley transaction. In support of this request, Mohr argues

that Elior waived any such breach by continuing to do business with Mohr thereafter.

153. Specifically, Mohr contends that Elior continued its contractual

relationship with Mohr under the ERA even after it became aware of the purported

breach. Mohr asserts that despite Elior learning of Macnoll’s alleged mistake on 13

July 2022, it did not immediately terminate the ERA and instead continued to request

the services of Mohr (through Macnoll) under the contract.

154. In making this argument, Mohr points to the fact that after the alleged

breach incident, Elior allowed Macnoll to continue his efforts in assisting Elior

regarding the subleasing of its Charlotte headquarters and facilitating Elior’s move

to a new office space. Based on the performance of these services, Mohr asserts, it
received a fee from Elior under the ERA. (Elior Rule 30(b)(6) Dep., at 118–20, ECF

No. 67.)

155. Finally, Mohr notes that although Macnoll’s alleged mistake occurred in

July 2022, Elior did not formally take the position that the ERA was no longer in

effect until August 2023.

156. In response, Elior contends that it continued to use Macnoll’s services

with regard to the roof and parking lot repairs that had to be made in connection with

the Berkeley Property only because it would have been cost-prohibitive to bring in a

new person to perform those tasks. Similarly, with regard to Macnoll’s efforts related

to Elior’s attempt to obtain a new site for its headquarters in Charlotte, Elior

contends that Macnoll had already been working on that project prior to the Berkeley

incident such that it made sense to allow him to finish the job.

157. Elior further asserts that even though it did not provide formal

notification to Mohr until August 2023 of its belief that the ERA was no longer in

effect, it did not assign any new projects to Mohr during that time period.

158. Under North Carolina law, waiver is “an intentional relinquishment or

abandonment of a known right or privilege.” Bombardier Cap., Inc., v. Lake Hickory

Watercraft, Inc., 178 N.C. App. 535, 540 (2006) (cleaned up). Our Court of Appeals

has explained that the elements of waiver are:

(1) the existence, at the time of the alleged waiver, of a right,
advantage or benefit;
(2) the knowledge, actual or constructive, of the existence thereof;
and,
(3) an intention to relinquish such right, advantage or benefit.

Dermitt v. Springsteed, 2014 N.C. App. 325, 328–29 (2010).
159. The Court of Appeals has held that a waiver “may be either express or

implied.” Medearis v. Trs. of Meyers Park Baptist Church, 148 N.C. App. 1, 11 (2001).

A crucial element of waiver is the intention of the waiving party. See In re Pedestrian

Walkway Failure, 174 N.C. App. 254, 265 (2005) (“There must always be an intention

to relinquish a right, advantage or benefit.”).

160. A party’s intention to waive a right can be implied “when a person

dispenses with a right by conduct which naturally and justly leads the other party to

believe that he has so dispensed with the right.” Medearis, 148 N.C. App. at 12.

161. The Court concludes that there is a genuine issue of material fact as to

whether Elior waived Macnoll’s alleged breach of the contract and that this issue

must therefore be resolved by a jury. Therefore, Mohr’s Motion for Summary

Judgment as to its breach of contract claim regarding the Berkeley Transaction is

DENIED.

2. Elior’s Counterclaims for Breach of Contract and Breach of
Fiduciary Duty

162. Mohr contends that even assuming arguendo that a triable issue of fact

exists as to the waiver issue, it is still entitled to partial summary judgment in its

favor on the issue of whether Elior would be entitled to recover actual damages (as

opposed to merely nominal damages) at trial on its counterclaims. This is so,

according to Mohr, because Elior has failed to put forth evidence that it suffered any

actual damages from Macnoll’s alleged error.

163. Under North Carolina law, proof of damages is not an element of a claim

for breach of contract. See Crescent Univ. City Venture, LLC v. AP Atl., Inc., 2019
NCBC LEXIS 46, at *44 (N.C. Super Ct. Aug. 8, 2019). As our Supreme Court has

explained, a plaintiff is entitled to “compensatory damages only if he allege[s] and

offer[s] evidence to satisfy the jury by the greater weight thereof that he has suffered

substantial damage, naturally and proximately caused by the breach.” Bowen v. Fid.

Bank, 209 N.C. 140, 144 (1936).

164. A claimant who prevails on a breach of contract claim but cannot show

that actual damages were suffered from the breach is limited to an award of nominal

damages. See Delta Envtl. Consultants, Inc. v. Wysong & Miles Co., 132 N.C. App.

160, 172 (1999) (“In a suit for damages for breach of contract, proof of the breach

would entitle the plaintiff to nominal damages at least.”).

165. In support of its contention that Elior has failed to show actual damages,

Mohr initially relies upon the deposition testimony of Brian Herrmann (Elior’s

designated corporate representative) at his Rule 30(b)(6) examination, who stated as

follows:

Q: So do you agree that Elior has not been damaged in the amount
of $702,303.66?

A: Yes.

Q: Thank you. Do you agree, Brian, that Elior has not been damaged
at all as a result of Mohr Partner’s involvement in the Berkeley
transaction?

A: I know that the original offer that Whitsons was looking for did
not include a renewal option. They wanted a right to review the
market rent at the end of the Lease term to determine whether or
not to renew.

Q: I’m not asking you about Whitsons. I’m asking you about Elior.

A: Could you rephrase the question?
Q: Do you agree that Elior has not been damaged at all as a result of
Mohr Partner’s involvement in the Berkeley transaction?

A: Yes.

(Elior Rule 30(b)(6) Dep., at 66.)

166. In response, Elior contends that Herrmann submitted an errata sheet

upon reviewing the transcript of his deposition in which he stated that he had

misunderstood this line of questioning. In the errata sheet, Herrmann stated that

his answers to the questions of whether Elior had actually been injured by Mohr’s

actions in the Berkeley Transaction should have been “yes” rather than “no.” (Elior

Rule 30(b)(6) Dep., at 284.)

167. Elior is correct that under North Carolina law, a deponent is permitted

to substantively change his prior testimony via an errata sheet. See Rel. Ins. Inc. v.

Pilot Risk Mgmt. Consulting, LLC, 2023 NCBC LEXIS 41, at **12 (N.C. Super. Ct.,

Mar. 16, 2023) (“This Court has held that Rule 30(e) “places no limits on a deponent’s

ability to make substantive changes to his prior deposition testimony on an errata

sheet.); see also Window World of Baton Rouge, LLC v. Window World, Inc., 2018

NCBC LEXIS 70, at *10 (N.C. Super Ct. Aug. 2, 2018) (“The plain language of Rule

30(e) permits a deponent to change the deponent’s deposition transcript in form or

substance, so long as the deponent sign[s] a statement reciting such changes and the

reasons . . . for making them.”).

168. However, nothing in the errata sheet offers any actual explanation of

how Elior suffered actual injury from Macnoll’s alleged mistake. Indeed, the change

in Herrmann’s testimony as contained on the errata sheet merely states as follows:
Page Line Is Amended to Read

Amend Answer to say “No”
6
66 (Misunderstood the question)

Amend Answer to say “No”
20
66 (Misunderstood the question)

(Elior Rule 30(b)(6) Dep., at 284.)

169. As a result, even accepting the errata sheet as a legitimate clarification

of his testimony, it is simply conclusory and therefore insufficient to support an award

of actual damages. See Intersal, Inc. v. Wilson, 2023 NCBC LEXIS 29, *46 (N.C.

Super. Ct. Feb. 23, 2023) (party claiming damages from breach of contract must prove

losses with reasonable certainty, which “requires more than hypothetical or

speculative forecasts”); see also Innovare, Ltd. v. Sciteck Diagnostics, Inc., 2023 NCBC

LEXIS 8, *31 (N.C. Super. Ct. Jan. 19, 2023) (rejecting basis for claimed damages for

breach of contract as merely conclusory).

170. Moreover, additional testimony from Elior witnesses on this subject

likewise supports Mohr’s contention that Elior has failed to raise a genuine issue of

material fact as to whether it actually suffered monetary damage due to Macnoll’s

alleged error.

171. For example, Hilton’s testimony further supports this proposition:

Q: Elior did not sustain any financial damage as a result of the
Berkeley conclusion and the Berkeley transaction, correct?

A: Not with how we got it done. Not with how we got it done.
Q: So would your answer be no?

A: Yes.

...

Q: As you testified earlier, there was no economic damage to Elior,
correct?

A: I don’t know. There could have been.

Q: I understand it’s your testimony that it could have been bad, but
the result was not bad, correct?

A: We got it done.

Q: Okay. No damage to Elior?

A: I don’t know if I agree with that.

Q: Okay. Please identify to us the damages Elior sustained during
this five-day period between the July 13th terms and the July 18th
terms?

A: I don’t know.

(Hilton Dep., at 130–31, 202–03, ECF 107.)

172. To overcome Mohr’s summary judgment motion on this issue, it was

incumbent upon Elior to offer evidence sufficient to support a jury finding that it

incurred monetary damages as a result of Macnoll’s alleged mistake. However, it has

failed to do so. Accordingly, Mohr is entitled to summary judgment on this issue, and

at trial, Elior shall only be permitted to seek nominal damages as to its breach of

contract claim regarding the Berkeley Transaction. See Am. Air Filter Co., Inc. v.

Price, 2018 NCBC LEXIS 73, at *11 (N.C. Super. Ct. July 10, 2018) (holding that a

claimant who could demonstrate a breach of contract was entitled only to an award
of nominal damages where it had not “presented any evidence that it suffered actual

damages”).

173. Elior’s second counterclaim for breach of fiduciary duty is likewise based

on its assertion that Macnoll conveyed an unauthorized offer regarding the Berkeley

Transaction.

174. “It is well-settled that to establish a claim for breach of fiduciary duty,

a plaintiff must show that: (1) the defendant 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 the injury to the plaintiff.” Lafayette Vill. Pub., LLC v. Burham,

2022 NCBC LEXIS 104, at *14–15 (N.C. Super. Ct. Sept. 12, 2022) (cleaned up).

175. Because of the genuine issue of material fact that exists over whether

Macnoll actually conveyed an unauthorized offer regarding the Berkeley Property,

Elior’s breach of fiduciary duty counterclaim also raises a triable issue that cannot be

resolved at the summary judgment stage.

176. For the reasons discussed above, the Court agrees with Mohr that Elior

has failed to show actual damages stemming from Macnoll’s alleged mistake.

However, as with its breach of contract counterclaim, Elior will be entitled to recover

nominal damages on its breach of fiduciary duty counterclaim at trial if it prevails on

that claim. See Chisum v. Campagna, 376 N.C. 680, 704–05 (2021) (“potential

liability for nominal damages is sufficient to establish the validity of [a] claim for

breach of fiduciary duty”); Kixsports, LLC v. Munn, 2021 NCBC LEXIS 32, at *25
(N.C. Super. Ct. Apr. 1, 2021) (holding that absence of actual damages does not defeat

a breach of fiduciary duty claim given potential liability for nominal damages).

177. Therefore, Mohr’s Motion for Summary Judgment is GRANTED in

part and DENIED in part as to Elior’s breach of contract and breach of fiduciary

duty counterclaims. To the extent Elior seeks summary judgment on its

counterclaims, its Motion is DENIED.

CONCLUSION

THEREFORE, IT IS ORDERED as follows:

1. Defendant’s Motion to Amend is DENIED.

2. With regard to the issue of whether the ERA entitles Mohr to receive a

commission on transactions self-serviced by Elior, Elior’s Motion for Summary

Judgment is GRANTED, and Mohr’s Motion for Summary Judgment is

DENIED.

3. With regard to the issue of whether Mohr is entitled to receive a commission

in connection with its work on the Moosic Transaction, Mohr’s Motion for

Summary Judgment is GRANTED. The Court DEFERS making a ruling at

the present time on the precise amount of the commission to which Mohr is

due.

4. With regard to the Berkeley Transaction, Mohr’s Motion for Summary

Judgment on its own claim for breach of contract is DENIED. To the extent

that Mohr seeks summary judgment on the issue of whether Elior is entitled

to seek actual damages at trial on Elior’s counterclaims for breach of contract
and breach of fiduciary duty stemming from the Berkeley Transaction, Mohr’s

Motion is GRANTED. However, to the extent that Mohr seeks summary

judgment on Elior’s counterclaims for breach of contract and breach of

fiduciary duty stemming from the Berkeley Transaction in their entirety,

Mohr’s Motion is DENIED as Elior shall be permitted to seek nominal

damages for those counterclaims at trial.

5. To the extent that Elior seeks summary judgment on any other claim in this

action except as set forth above in paragraph 2, its Motion is DENIED.

SO ORDERED, this the 21st day of May 2025.

/s/ Mark A. Davis
Mark A. Davis
Special Superior Court Judge for
Complex Business Cases