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Kamel v. 5Church, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

August 23, 2019

AYMAN KAMEL, Plaintiff,
v.
5CHURCH, INC., PATRICK WHALEN, MAP MANAGEMENT OF CHARLOTT LLC, and ALEJANDRO TORIO, Defendants. 5CHURCH INC., and 5CHURCH CHARLESTON, LLC, Plaintiffs,
v.
Ayman KAMEL, Defendant.

          ORDER

          Robert J. Conrad, Jr., United States District Judge

         THIS MATTER comes before the Court on (1) 5Church, Inc., 5Church Charleston, LLC, Patrick Whalen, MAP Management of Charlotte, LLC, and Alejandro Torio's Motion for Summary Judgment, (Doc. No. 65); (2) Ayman Kamel's Motion for Partial Summary Judgment, (Doc. No. 69); and (3) 5Church, Inc., 5Church Charleston, LLC, Patrick Whalen, MAP Management of Charlotte, LLC, and Alejandro Torio's Motion to Continue Trial Date, (Doc. No. 85).

         I. BACKGROUND

         In a case that seems to prove the adage “never go into business with your friends, ” this litigation arises out of a dispute between two friends and co-owners of several restaurant businesses. Ayman Kamel (“Kamel”) and Patrick Whalen (“Whalen”) met over ten years ago while working for a restaurant and night club in New York City. Kamel and Whalen became close friends and opened their own restaurant together in Charlotte, North Carolina. After the success of their first restaurant, they opened additional restaurants in Charlotte, Atlanta, Georgia, and Charleston, South Carolina. Ultimately, differences arose between Kamel and Whalen, and this litigation ensued. The record establishes, the parties agree, and/or the parties do not dispute the following.

         A. Kamel and Whalen's Pre-Existing Relationship

         Kamel and Whalen are in the restaurant management business. Kamel began his career in 1996 as the owner of Napoli, an Italian restaurant in Manhattan, New York. (Doc. No. 70-1, at 10:1-6.) One to two years later, Kamel bought another Italian restaurant in Brooklyn, New York. (Id. at 14:3-25.) After the September 11 terrorist attacks caused both restaurants to close, Kamel joined The Cheesecake Factory at the end of 2002 as a manager. (Id. at 16:19-21, 20:1-16.) Soon thereafter, he was promoted to senior manager and then assistant general manager. (Id. at 23:18-24:1, 33:4.) By the middle of 2005, Kamel was frustrated that he had not been further promoted to general manager or Area Director of Operations (“ADO”), and Kamel left The Cheesecake Factory. (Id. at 45:8-13, 46:7-12, 96:20-23.)

         Kamel and Whalen's relationship began in 2007 at Frames Bowling Lounge (“Frames”), a combined night club, bowling alley, and restaurant in New York City. (Doc. No. 1, ¶ 11; Doc. No. 48, at 2 ¶ 11.) Kamel, then the executive general manager of Frames, hired Whalen in June 2007 as a floor manager. (Doc. No. 1, ¶ 12; Doc. No. 48, at 2 ¶ 12; Doc. No. 70-1, at 63:3-7.) Kamel supervised Whalen's work at Frames, and the two became close friends. (Doc. No. 1, ¶ 13; Doc. No. 48, at 2 ¶ 13; Doc. No. 70-1, at 96:14-20.) During the two and one-half years that Kamel and Whalen worked together at Frames, Kamel repeatedly represented to Whalen that Kamel had significant experience in the restaurant industry. (Doc. No. 48, at 11 ¶ 7; Doc. No. 49, ¶ 7.)

         B. Formation of the 5Church Companies

         In December 2009, Whalen left Frames and moved to Charlotte, North Carolina where he took a job at a night club called Butter. (Doc. No. 1, ¶ 13; Doc. No. 48, at 2 ¶ 13; Doc. No. 70-1, at 64:23-65:2.) Kamel and Whalen remained in regular communication. (Doc. No. 1, ¶ 16; Doc. No. 48, at 3 ¶ 16.) Among other topics, Whalen told Kamel that he wanted to open a restaurant in Charlotte, and Whalen often sought Kamel's feedback on Whalen's restaurant plans. (Doc. No. 1, ¶ 17; Doc. No. 48, at 3 ¶ 17; Doc. No. 70-12, at 63:4-64:14.)

         On December 30, 2011, Whalen formed 5Church, Inc. (“5Church Charlotte”), a North Carolina corporation, for the purpose of operating a restaurant in Charlotte, North Carolina that opened on May 18, 2012. (Doc. No. 62, ¶ 8; Doc. No. 63, ¶ 8.) Whalen was the manager of 5Church Charlotte, and Kamel was a silent investor. (Doc. No. 1, ¶ 20; Doc. No. 48, at 3 ¶ 20; Doc. No. 66-2, at 4.) Kamel invested $100, 000 in 5Church Charlotte in exchange for a 20% interest therein. (Doc. No. 1, ¶ 22; Doc. No. 48, at 3 ¶ 22.) MAP Management of Charlotte, LLC (“MAP”) acquired a 60% interest in 5Church Charlotte. (Doc. No. 1, ¶ 24; Doc. No. 48, at 4 ¶ 24; Doc. No. 66-2, at Ex. A.) Whalen and Alejandro Torio (“Torio”), whom Whalen had worked with at Butter, owned membership interests in MAP, and Whalen was MAP's manager. (Doc. No. 1, ¶ 25; Doc. No. 48, at 4 ¶ 25.) Maurice Panzino (“Panzino”) acquired the remaining 20% interest in 5Church Charlotte. (Doc. No. 66-2, at Ex. A.)

         In connection with the formation of 5Church Charlotte, Whalen, Kamel, and Panzino executed an Operating Agreement. (Doc. No. 66-2.) Three provisions of the agreement are at issue in this litigation. First, section 3.12(a) of the agreement states that the members, officers, and directors “will not, directly or indirectly, invest in, own, control or participate in the ownership, management, operation, or control of, any [entity] engaged in or planning to become engaged in the Business anywhere within the . . . 25 mile radius from” the 5Church Charlotte restaurant. (Id. at § 3.12(a).) “Business” is defined as “the ownership and/or operation of a restaurant.” (Id.) Restaurant is not defined in the agreement. Second, section 3.12(b) prohibits the members, officers, and directors from publicly disparaging the company or its members, managers, officers, employees, or agents. (Id. at § 3.12(b).) Third and last, section 3.12(c) provides the initial members with a right of first refusal to invest in the “second business to be opened after the commencement of this business[.]” (Id. at § 3.12(c).)

         During the end of 2013, Whalen and Kamel opened a second restaurant in Charlotte called Nan & Byron's. (Doc. No. 70-2, at 30:3-8.) Kamel invested in Nan & Byron's in exchange for a minority ownership interest. (Id. at 30:9-17.)

         In July 2013, Whalen contacted Kamel about an opportunity to open a new 5Church restaurant in Charleston, South Carolina and proposed that Kamel participate in the management of the new restaurant. (Doc. No. 48, at 15 ¶ 31; Doc. No. 49, ¶ 31.) Kamel moved from New York City to Charlotte in March 2014 to assist Whalen with Nan & Byron's and opening the new 5Church restaurant in Charleston. (Doc. No. 48, at 15 ¶ 32; Doc. No. 49, ¶ 32.) Whalen and Kamel formed 5Church Charleston, LLC (“5Church Charleston”), a South Carolina limited liability company, on October 8, 2014 to operate the new 5Church restaurant in Charleston. (Doc. No. 48, at 16 ¶ 35; Doc. No. 49, ¶ 35.) The initial members in 5Church Charleston included Whalen and Kamel, who also served as co-managers. (Doc. No. 21-4, at Ex. A.) At some point, Torio also acquired a membership interest in 5Church Charleston. (Doc. No. 70-12, at 294:1-295:3.) The Charleston restaurant opened on November 20, 2015, and Whalen moved to Charleston to focus on day-to-day management of the restaurant. (Doc. No. 1, ¶ 40; Doc. No. 48, at 6 ¶ 40; Doc. No. 48, at 16 ¶ 35, at 20 ¶ 61; Doc. No. 49, ¶¶ 35, 61.)

         Not long thereafter, 5Church expanded to Atlanta, Georgia. Whalen and Kamel formed 5Church Atlanta, LLC (“5Church Atlanta”), a Georgia limited liability company, to operate the Atlanta restaurant. (Doc. No. 48, at 16 ¶ 38; Doc. No. 49, ¶ 38.) The initial members in 5Church Atlanta included Whalen and Kamel, who also served as co-managers. (Doc. No. 21-5, at Ex. A.) The Atlanta restaurant opened on June 24, 2016, and Kamel moved to Atlanta to focus on day-to-day management of the restaurant. (Doc. No. 1, ¶ 40; Doc. No. 48, at 6 ¶ 40.)

         C. Kamel and Whalen's Relationship Deteriorates

         Shortly after opening the 5Church Atlanta restaurant, the relationship between Kamel and Whalen began to deteriorate. Kamel contacted Alex Pierce (“Pierce”) at SLR Support, who provided IT support to the 5Church companies, and directed Pierce to forward emails addressed to Whalen's 5Church email address to Kamel's personal email address. (Doc. No. 76-7, at 220:11-18.) Kamel further directed Pierce to transfer the administrative rights to the 5Church email domains to Kamel. (Id. at 216:9-11.) From July 3 to December 1, 2016, there was an email forwarding rule in place on Whalen's 5Church email account pursuant to which Whalen's emails were automatically forwarded to Kamel's personal email address. (Doc. No. 76-9, ¶ 28.)

         On December 1, 2016, an email to Whalen was automatically forwarded to Kamel pursuant to the forwarding rule but failed to deliver, and Whalen received a bounce back email stating that the email was not delivered to Kamel. (Doc. No. 62-2.) Whalen forwarded the bounce back email to Kamel and asked “[a]ny idea why my emails would be forwarding to your personal gmail account?” (Id.) Kamel never responded to Whalen's email. (Doc. No. 76-2, at 216:1-3.) Whalen contacted Pierce about the bounce back email, who said it was “fine” and “no big deal.” (Id. at 216:1- 10.) Whalen did not investigate further and assumed the bounce back email was due to a glitch in the system. (Id. at 216:12-16.)

         On April 21, 2017, Kamel exercised his buy-sell right under the deadlock provision of the 5Church Atlanta Operating Agreement, forcing Whalen to sell his interest to Kamel and relinquish his manager position. (Doc. No. 70-8.) Whalen told Kamel that he was “heartbroken” and that he would never forgive Kamel. (Doc. No. 70-9.)

         In or around May 2017, Whalen opened Sophia's Lounge, which is right next door to, and shares a wall with, 5Church Charlotte. (Doc. No. 1, ¶ 43; Doc. No. 48, at 6 ¶ 43.) Torio is also involved in the operation of Sophia's Lounge. (Doc. No. 66-9.) Sophia's Lounge serves wine, beer, craft cocktails, and food; however, it does not have a kitchen. (Doc. No. 1, ¶ 45; Doc. No. 48, at 6 ¶ 45; Doc. No. 71-1, at 233:14-234:2.) Instead, Whalen, on behalf of both Sophia's Lounge and 5Church Charlotte, executed a Service Agreement pursuant to which Sophia's Lounge used 5Church Charlotte's kitchen and resources to prepare food to be served at Sophia's Lounge. (Doc. No. 1, ¶ 46; Doc. No. 48, at 6 ¶ 46; Doc. No. 68-1.) Kamel contends that he was not offered the opportunity to invest in Sophia's Lounge, and that Sophia's Lounge is a restaurant in competition with 5Church Charlotte. (Doc. No. 1, ¶¶ 57, 59.)

         Also in May 2017, Whalen contends that he first became aware that Kamel was never an ADO at The Cheesecake Factory. (Doc. No. 70-12, at 118:8-24; Doc. No. 70-15.) Based on this alleged misrepresentation, Whalen, on behalf of 5Church Charleston, terminated Kamel as co-manager. (Doc. No. 21-12.)

         D. The Instant Lawsuit

         On August 22, 2017, Kamel filed this action against 5Church Charlotte, Whalen, MAP, and Torio (collectively, the “Defendants”). (Doc. No. 1.) Kamel asserts the following claims: (1) breach of the 5Church Charlotte Operating Agreement against all Defendants; (2) breach of fiduciary duty against Whalen and MAP; (3) unfair or deceptive acts or practices in violation of N.C. Gen. Stat. § 75-1.1 against Whalen and Torio; and (4) equitable accounting against 5Church Charlotte. (Id. at 8-10.)

         On August 28, 2017, 5Church Charlotte and 5Church Charleston initiated a separate action against Kamel, No. 3:17-cv-00517-RJC-DCK, which was consolidated into this action on September 1, 2017. (Doc. No. 10.) In their Amended Complaint, 5Church Charlotte and 5Church Charleston assert the following claims: (1) violation of the North Carolina Securities Act; (2) fraud; (3) unfair or deceptive acts or practices and unfair methods of competition in violation of N.C. Gen. Stat. § 75-1.1; (4) computer trespass in violation of N.C. Gen. Stat. § 14-458; (5) violation of the Stored Communications Act (“SCA”); (6) conversion; (7) violation of the Computer Fraud and Abuse Act (“CFAA”); (8) breach of the duty of loyalty to 5Church Charleston; and (9) injunctive relief. (Doc. No. 62, at 22-30.)

         On September 19, 2017, Whalen filed counterclaims against Kamel. (Doc. No. 21.) In his Second Amended Counterclaims, Whalen asserts claims for (1) fraud, and (2) violation of the North Carolina Securities Act. (Doc. No. 48, at 26-28.)

         On May 15, 2019, Defendants moved for summary judgment on Kamel's claims, (Doc. No. 65), and Kamel moved for summary judgment on Whalen's counterclaims and 5Church Charlotte and 5Church Charleston's claims, (Doc. No. 69). Kamel and Defendants timely filed opposition and reply briefs. (Doc. Nos. 71, 74, 79-80.) On July 23, 2019, the Court held oral argument on the pending motions. Having been fully briefed and argued, these motions are now ripe for adjudication.

         II. STANDARD OF REVIEW

         Summary judgment shall be 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). A fact is material only if it might affect the outcome of the suit under governing law. Id. The movant has the “initial responsibility of informing the district court of the basis for its motion, and identifying 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) (quotation marks omitted). This “burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         Once this initial burden is met, the burden shifts to the nonmoving party, which “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. The nonmoving party may not rely upon mere allegations or denials of allegations in the pleadings to defeat a motion for summary judgment; rather, it must present sufficient evidence from which “a reasonable jury could return a verdict for the nonmoving party.” Id. at 248; accord Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818 (4th Cir. 1995).

         When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. 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, 557 U.S. 557, 586 (2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Anderson, 477 U.S. at 248-49. “If the evidence is merely colorable or is not significantly probative, ” summary judgment is appropriate. Id. at 249-50 (citations omitted).

         III. DISCUSSION

         A. Defendants' Motion for Summary Judgment

         Defendants move for summary judgment on Kamel's claims for breach of contract, breach of fiduciary duty, and violation of N.C. Gen. Stat. § 75-1.1. (Doc. No. 65.) Defendants do not move for summary judgment on Kamel's claim for an equitable accounting.

         1. Kamel's Breach of Contract Claim Against All Defendants

         Kamel claims that Defendants breached three provisions of the 5Church Charlotte Operating Agreement: (1) section 3.12(a), the non-competition provision; (2) section 3.12(b), the non-disparagement provision; and (3) section 3.12(c), the right of first refusal provision. (Doc. No. 1, ¶¶ 57-59.) The Court addresses each alleged breach in turn.

         i. Section 3.12(a)

         Kamel claims that Defendants breached section 3.12(a) by owning and operating Sophia's Lounge. Section 3.12(a) prohibits the members, officers, and directors from investing in, owning, controlling, or participating in the management or operation of any entity engaged in or planning to become engaged in the ownership and/or operation of a restaurant. (Doc. No. 66-2, § 3.12(a).) Defendants argue that they are entitled to summary judgment on Kamel's claim for breach of section 3.12(a) for two reasons: (1) Kamel cannot establish damages as Sophia's Lounge benefits 5Church Charlotte, and (2) Sophia's Lounge is not a restaurant and, therefore, section 3.12(a) does not prohibit Defendants from owning or operating Sophia's Lounge. (Doc. No. 67, at 8-10.)

         Defendants are not entitled to summary judgment based on their contention that Kamel cannot establish damages. Defendants agree that North Carolina law applies to the 5Church Charlotte Operating Agreement, but Defendants cite to a case from the Western District of Virginia applying Virginia law to support their argument that damages is an essential element of a breach of contract claim. (Doc. No. 67, at 15.) However, under North Carolina law, “[t]he elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.” Poor v. Hill, 530 S.E.2d 838, 845 ( N.C. Ct. App. 2000). Contrary to Defendants' contention, North Carolina law is clear that “in a suit for damages for breach of contract, proof of the breach would entitle the plaintiff to nominal damages at least.” Delta Envtl. Consultants, Inc. v. Wysong & Miles Co., 510 S.E.2d 690, 698 ( N.C. Ct. App. 1999); Midgett v. N.C. State Highway Comm'n, 144 S.E.2d 121, 124 ( N.C. 1965) (“When plaintiff proves breach of contract he is entitled at least to nominal damages.”); Crescent Univ. City Venture, LLC v. AP Atl., Inc., 2019 NCBC LEXIS 46, at *127 ( N.C. Super. Ct. Aug. 8, 2019) (“Under North Carolina law, proof of damages is not an element of a claim for breach of contract.”); see Brodkin v. Novant Health, Inc., 824 S.E.2d 868, 872 ( N.C. Ct. App. 2019) (“To establish a breach of contract claim, there must be: (1) the existence of a valid contract and (2) a breach of a contractual term.”). Accordingly, Kamel's alleged inability to prove damages is not a valid basis for granting summary judgment in favor of Defendants on his breach of contract claim.

         Defendants also contend that they are entitled to summary judgment because Sophia's Lounge is not a restaurant within the meaning of section 3.12(a). (Doc. No. 67, at 8-10.) In so arguing, Defendants refer to various statutory definitions of the term “restaurant.” (Id.) Kamel argues that reference to statutory definitions of “restaurant” in interpreting the parties' contract is improper, and Sophia's Lounge falls within the parties' intended meaning of “restaurant.” (Doc. No. 71, at 2-5.)

         “Whenever a court is called upon to interpret a contract its primary purpose is to ascertain the intention of the parties at the moment of its execution.” Premier, Inc. v. Peterson, 755 S.E.2d 56, 59 ( N.C. Ct. App. 2014) (quoting Lane v. Scarborough, 200 S.E.2d 622, 624 ( N.C. 1973)). “[W]hen the terms of a contract are plain and unambiguous, there is no room for construction.” State v. Philip Morris USA Inc., 685 S.E.2d 85, 91 ( N.C. 2009) (quotation marks omitted). “A contract that is plain and unambiguous on its face will be interpreted by the court as a matter of law, ” Schenkel & Schultz, Inc. v. Hermon F. Fox & Assocs., P.C., 658 S.E.2d 918, 921 ( N.C. 2008), and “the court cannot look beyond the terms of the contract to determine the intentions of the parties, ” Lynn v. Lynn, 689 S.E.2d 198, 205 ( N.C. Ct. App. 2010). “When an agreement is ambiguous and the intention of the parties is unclear, however, interpretation of the contract is for the jury.” Schenkel & Schultz, Inc., 658 S.E.2d at 921. Any undefined, “non-technical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning was intended.” Premier, Inc., 755 S.E.2d at 61. “A contract term is ambiguous only when, in the opinion of the court, the language of the contract is fairly and reasonably susceptible to either of the constructions for which the parties contend.” Philip Morris USA Inc., 685 S.E.2d at 96 (brackets and quotation marks omitted).

         Here, there is no evidence that the parties intended “restaurant” to have a meaning different than its ordinary meaning. Accordingly, the Court must give “restaurant” its ordinary meaning in construing section 3.12(a).

         Defendants fail to cite any authority for this Court to look to definitions of “restaurant” set forth in otherwise inapplicable statutes to ascertain the term's ordinary meaning. Instead, “[i]n construing the ordinary and plain meaning of disputed terms, [the North Carolina Supreme Court] has used standard, nonlegal dictionaries as a guide.” C. D. Spangler Constr. Co. v. Industrial Crankshaft & Eng'g Co., 388 S.E.2d 557, 568 ( N.C. 1990) (quotation marks omitted); Premier, Inc., 755 S.E.2d at 61 (looking to Webster's New World Dictionary and The American Heritage College Dictionary in determining the ordinary meaning of contractual terms “subscribed” and “licensed”); Southpark Mall Ltd. P'ship v. CLT Food Mgmt., 544 S.E.2d 14, 16-17 ( N.C. Ct. App. 2001) (looking to Webster's Third New International Dictionary, Black's Law Dictionary, and The American Heritage College Dictionary in determining the ordinary meaning of contractual terms “guest” and “day”).

         The American Heritage Dictionary of the English Language defines “restaurant” as “[a] place where meals are served to the public.”[1] The American Heritage Dictionary of the English Language 1496 (5th ed. 2011). The definition requires only that the place be one where meals are served. It is undisputed that Sophia's Lounge serves food; however, the record before the Court is unclear as to the type and nature of the food served-i.e., whether Sophia's Lounge serves meals so as to render Sophia's Lounge a restaurant. Therefore, the Court concludes that there is a genuine dispute of material fact as to whether Sophia's Lounge is a “restaurant, ” and Defendants are not entitled to summary judgment on Kamel's claim for breach of section 3.12(a) of the 5Church Charlotte Operating Agreement.

         ii. Section 3.12(b)

         Section 3.12(b) states that the members, officers, and directors of 5Church Charlotte shall not “publicly disparage” the company or its members, managers, officers, employees, or agents. (Doc. No. 66-2, § 3.12(b).) Defendants argue that they are entitled to summary judgment on Kamel's claim for breach of section 3.12(b) because Kamel cannot establish that Defendants publicly disparaged Kamel.[2] (Doc. No. 67, at 12-14.) Kamel asserts that Defendants publicly disparaged Kamel by (1) Torio's April 5, 2017 Facebook post cropping Kamel out of the photograph; (2) Torio's July 26, 2017 email stating “sounds like an ex-girlfriend who doesn't want to break up”; (3) Whalen and Torio's suggestion, through facial expressions and body language, that a 5Church Charlotte hostess should not accept Kamel's invitation to attend a one-year anniversary party for 5Church Atlanta; (4) Torio's statement to his friend, Allen Chu (“Chu”), that Kamel would be unable to successfully operate 5Church Atlanta after Torio and Whalen departed; and (5) Torio's comment on Whalen's Instagram page that “Nan and Byron's worked but someone unqualified messed it up for us.” (Doc. No. 71, at 8.)

         As the parties' agreement does not define “disparage, ” the Court must give “disparage” its ordinary meaning in construing section 3.12(a). Premier, Inc., 755 S.E.2d at 61. The Court looks to standard, nonlegal dictionaries in construing the ordinary meaning of “disparage.” C. D. Spangler Constr. Co., 388 S.E.2d at 568. The American Heritage Dictionary of the English Language defines “disparage” as “[t]o speak of in a slighting or disrespectful way” and “[t]o reduce in esteem or rank.”[3] The American Heritage Dictionary of the English Language 520 (5th ed. 2011).

         Applying these definitions, the Court concludes that Kamel has failed to come forward with sufficient evidence that Defendants publicly disparaged Kamel to create a genuine dispute of material fact. Torio's Facebook post, although public, did not disparage Kamel. In fact, the post did not even speak of or reference Kamel. (Doc. No. 66-11.) The post consisted of a photograph of Torio, Whalen, and chef Jamie Lynch. (Id.) The caption stated: “Sadly I'm saying goodbye to Atlanta. More news to come next week when I'm in town!” (Id.) That Torio cropped Kamel out of the photograph did not disparage Kamel. Likewise, Torio's comment on Whalen's Instagram page did not disparage Kamel for this same reason-it did not speak of or reference Kamel. (Doc. No. 71-9.) It merely stated: “Nan and Byron's worked but someone unqualified messed it up for us.” (Id.)

         In addition, Torio did not publicly disparage Kamel in his July 26, 2017 email. Whalen and Kamel had exchanged numerous emails in which they disputed various issues that are now the subject of this litigation. (Doc. No. 71-8.) In response to this exchange between Whalen and Kamel, Torio stated “lol sounds like an ex-girlfriend who doesn't want to break up.” (Id.) Such a statement did not disparage Kamel- indeed, the end of a relationship between business partners is often analogized to a break-up. See, e.g., Neal A. Jacobs, Breaking Up Is Hard to Do: What Are Your Rights When Business Partners Decide to Split?, 7 Bus. Law Today 8, 8 (1998) (“Business divorces can be just as emotionally wrenching and financially disruptive as a marital divorce.”). Moreover, Torio's email was only sent to Whalen, Kamel, chef Jamie Lynch, Mills Howell (an investor in 5Church Charleston), Whalen's parents, and Whalen's attorney. (Id.; Doc. No. 66-3, at 189:1-19.) Thus, even assuming arguendo that Torio's statement amounts to ...


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