CUTTER v. VOJNOVIC, 2024 NCBC 7

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 10487
ERNEST CUTTER III,
Plaintiff,
v.
GREGORY VOJNOVIC; and HOT
DOG SHOPPE HOLDINGS, LLC,
Defendants.
ORDER AND OPINION ON CROSS-
MOTIONS FOR SUMMARY
JUDGMENT AND DEFENDANTS’
MOTION TO STRIKE PARTS OF THE
CUTTER AFFIDAVIT
1. 	THIS MATTER is before the Court on Plaintiff’s Motion for Summary
Judgment 	(“Plaintiff’s 	Motion”),1 	Defendants’ 	Motion 	for 	Summary 	Judgment2
(“Defendants’ Motion”; together with Plaintiff’s Motion, the “Cross-Motions”), and
Defendants’ Motion to Strike Parts of the Cutter Affidavit3 (the “Motion to Strike”;
together with the Cross-Motions, the “Motions”), all filed pursuant to Rule 56 of the
North Carolina Rules of Civil Procedure (the “Rule(s)”) in the above captioned case.
2. 	Having considered the Motions, the briefs filed in support of and in
opposition to the Motions, the arguments of counsel at the hearing on the Motions,
and other appropriate matters of record, the Court, in the exercise of its discretion,
hereby GRANTS in part and DENIES in part the Motion to Strike, GRANTS
Defendants’ Motion, and DENIES Plaintiff’s Motion as set forth below.
1 (Pl.’s Mot. Summ. J., ECF No. 66.)
2 (Defs.’ Mot. Summ. J, ECF No. 69.)
3 (Mot. Strike Parts the Cutter Aff., ECF No. 87.)
Cutter v. Vojnovic, 2024 NCBC 7.

James, McElroy & Diehl, PA, by J. Alexander Heroy and Jennifer M. Houti, for
Plaintiff Ernest Cutter III.
Nelson 	Mullins 	Riley 	& 	Scarborough 	LLP, 	by 	Thomas 	G. 	Hooper, 	for
Defendants Gregory Vojnovic and Hot Dog Shoppe Holdings, LLC.
Bledsoe, Chief Judge.
I.
FACTUAL BACKGROUND
3. 	This action arises from Plaintiff Ernest Cutter, III’s (“Cutter” or “Plaintiff”)
and 	Defendant 	Gregory 	Vojnovic’s 	(“Vojnovic”) 	effort 	to 	purchase 	three 	Ohio
restaurants that were owned by three different companies collectively known as Jib
Jab (“Jib Jab”).4 In 2019, Cutter sought to purchase and operate Jib Jab through his
company 	ARC 	Industries, 	Inc. 	(“ARC”), 	which 	invests 	in 	small 	and 	mid-size
companies in the light manufacturing, distribution, and warehousing industries.5
4. 	On 15 October 2019, Cutter, on behalf of ARC, sent a non-binding letter of
intent to Jib Jab’s broker outlining possible terms for ARC’s acquisition of Jib Jab.6
4 (Aff. Gregory Vojnovic, dated 13 August 2021, at ¶ 26 [hereinafter “Vojnovic Aff,”], ECF No.
5.)
5 (Dep. Ernest Cutter, III, dated 20 October 2022, at 30:3–31:6, 48:17–49:20, 51:8–9 (ECF No.
70.11) [hereinafter “Cutter Dep.”], ECF Nos. 67.1, 70.11, 80.1, 82.2, 85.1, 92—93; Aff. Ernest
Cutter, III, dated 25 October 2023, at ¶ 2 [hereinafter “Cutter Aff.”], ECF No. 81; 2d Aff.
Gregory Vojnovic, dated 22 September 2023, at ¶ 9 [hereinafter “2d Vojnovic Aff.”], ECF No.
71.) The transcript of Cutter’s deposition has been filed under different docket entries. For
clarity, the Court will cite to the specific electronic filing number in which the cited portion
of Cutter’s deposition may be found.
6 (Cutter Dep. 47:17–48:16; Index Defs.’ Mot. Summ J. Ex. C, Dep. Ex. 3 [hereinafter “15
October 2019 LOI”], ECF No. 70.3.) 	Cutter testified that he sent the letter “to get the
numbers . . . in front of the other side and to start negotiating the numbers.” (Cutter Dep.
61:8–10, ECF No. 70.11.)

The 15 October 2019 LOI suggested a $12,437,500 purchase price, with $7.5 million
paid at closing—comprised of a $4.5 million loan guaranteed by the U.S. Small
Business Administration (the “SBA”), a separate $2.5 million mortgage loan, and
$500,000 in equity.7 Another $4.5 million would be paid under a 10-year promissory
note at 5% interest, with payments beginning a year later and interest totaling
$337,500.8 	The sellers also would be paid $100,000 under a 12-month “transition
services agreement” (“TSA”).9
5. 	Since Cutter had no experience in the restaurant industry,10 no experience
buying, investing in, or operating restaurants,11 and no interest in developing
restaurant management expertise,12 he sought to team up with a business associate
with 	relevant 	experience 	so 	that, 	together, 	they 	could 	pursue 	the 	Jib 	Jab
opportunity.13 	Ultimately, on 1 November 2019, Cutter reached out to Defendant
7 (15 October 2019 LOI 5–6; Cutter Dep. 54:14–55:21, ECF No. 70.11.)
8 (15 October 2019 LOI 5–6.)
9 (15 October 2019 LOI 5–6.; Cutter Dep. 47:17–65:9, ECF No. 70.11.)
10 (Cutter Dep. 46:20–21 (“I don’t know anything about restaurants.”), ECF Nos. 67.1, 70.11.)
11 (Cutter Dep. 47:1–13 (“My typical deal is . . . not restaurants.”), ECF No. 70.11.)
12 (Cutter Dep. 37:22–38:8 (“I don’t possess [a restaurant management] skill set, nor did I
desire to try to attain it.”), ECF Nos. 70.11, 80.1; 2d Vojnovic Aff. ¶ 9.)
13 (Cutter Dep. 35:7–35:12 (ECF No. 67.1), 37:15–38:8 (ECF Nos. 70.11, 80.1).)

Vojnovic, the chief executive officer of a Georgia company that provides consulting
services to restaurants,14 and they agreed to work together to purchase Jib Jab.15
6. 	The pair never entered into a written contract concerning the acquisition of
Jib Jab, nor did they execute a formal partnership agreement.16 	Nonetheless, it is
undisputed that Cutter and Vojnovic broadly agreed that Cutter would structure the
terms of the acquisition, handle the negotiations with Jib Jab’s broker, procure
funding for the acquisition, close the deal, and handle any future financing and
acquisitions, and that Vojnovic would be responsible for handling the post-acquisition
operation of the Jib Jab restaurants.17
7. 	On 19 February 2020, Cutter, again indicating that he was acting on behalf
of ARC, sent another non-binding letter of intent to Jib Jab’s broker, this time
proposing a slightly higher purchase price ($12,487,500), with $7.5 million paid at
closing from a sale-leaseback transaction with Essential Properties, LLC.18 	The
balance would be paid under a $100,000 TSA and a 10-year promissory note at 5%
14 (Dep. Gregory Vojnovic, dated 2 November 2022, at 97:7–18 [hereinafter “Vojnovic Dep.”],
ECF Nos. 67.5, 80.2, 85.2; Cutter Dep. 38:9–18 (ECF Nos. 70.11, 80.1), 70:1–18 (ECF No.
70.11); Vojnovic Aff. ¶ 2.) 	The transcript of Vojnovic’s deposition has been filed under
different docket entries. For clarity, the Court will cite to the specific electronic filing number
in which the cited portion of Vojnovic’s deposition may be found.
15 (2d Vojnovic Aff. ¶ 13.)
16 (Cutter Dep. 73:17–24 (ECF No. 67.1), 222:20–23:12 (ECF No. 70.11); Vojnovic Aff. ¶ 27.)
17 (Cutter Dep. 75:7–17 (ECF Nos. 67.1, 70.11), 77:19–79:25 (ECF No. 70.11), 81:1–84:25
(ECF No. 70.11), 85:1–3 (ECF No. 67.1); Vojnovic Dep. 97:19–98:21, ECF Nos. 67.5, 80.2; 2d
Vojnovic Aff. ¶¶ 12–13.)
18 (Index Defs.’ Mot. Summ J. Ex. D, Dep. Ex. 8 4–5 [hereinafter “19 February 2020 LOI”],
ECF No. 70.4.)

interest.19 	Interest payments (totaling $387,500) and principal payments would
begin in one and two years, respectively.20
8. 	In March 2020, and in anticipation of the contemplated Jib Jab purchase,
Vojnovic created three separate entities: Defendant Hot Dog Shoppe Holdings, LLC
(“Holdings”), former defendant Hot Dog Shoppe Operating, Inc. (“Operating”), and
former defendant Hot Dog Shoppe Franchising, LLC (“Franchising”).21 	Vojnovic is
the registered agent for Holdings, Operating, and Franchising.22 Cutter and Vojnovic
intended for Holdings to be the legal owner of Jib Jab after the purchase transaction
closed.23 	The COVID-19 pandemic, however, intervened, and the restaurants were
forced to close, which then dried up the financing, so Cutter and Vojnovic were unable
to press forward with the proposed acquisition.24
9. 	On 11 May 2020, with the pandemic well underway, Cutter, again on behalf
of ARC, submitted another non-binding letter of intent to Jib Jab’s broker, but this
time with a smaller initial investment. 	This letter proposed a purchase price of
$13,712,500, with only $6 million—all from Essential Properties, LLC—paid at
19 (19 February 2020 LOI 4–5.)
20 (19 February 2020 LOI 4–5.; Cutter Dep. 95:2–104:4, ECF No. 70.11.)
21 (Vojnovic Aff. ¶¶ 7, 13, 18; Cutter Dep. 119:2–21:25, ECF Nos. 67.1, 70.11.)
22 (Cutter Dep. 119:18–20:4, ECF Nos. 67.1, 70.11; Vojnovic Aff. ¶¶ 34, 36.)
23 (Cutter Dep. 120:9–18, ECF Nos. 67.1, 70.11; Vojnovic Dep. 140:2–14 (ECF No. 80.2),
160:7–15 (ECF No. 67.5).)
24 (Cutter Dep. 104:9–15, ECF No. 70.11; 2nd Vojnovic Aff. ¶ 21.)

closing.25 The rest of the balance would be paid through a $100,000 TSA and a six-
year, $6 million promissory note with a 5% interest rate requiring interest payments
(now totaling $1,612,500) and principal payments to begin in a year.26 	Jib Jab
rejected these proposed terms.27
10. 	On 11 June 2020, Vojnovic, acting on behalf of Holdings,28 sent a new non-
binding letter of intent to Jib Jab’s broker proposing a purchase price of $8.85 million
without including any details about financing.29 	As it did with Cutter’s proposed
terms, Jib Jab rejected Vojnovic’s proposal.30
11. 	Vojnovic next engaged an investment banker to canvas over 30 potential
lenders, including traditional, unitranche, and hard-money lenders, in an attempt to
secure financing for the purchase.31 None of the lenders were interested in financing
the transaction.32 	After exhaustive effort, the only financing option Cutter and
Vojnovic were able to arrange was an SBA-guaranteed loan from HomeTrust Bank.33
25 (Index Defs.’ Mot. Summ J. Ex. E, Dep. Ex. 10 5–6 [hereinafter “11 May 2020 LOI”], ECF
No. 70.5.)
26 (11 May 2020 LOI 5–6; Cutter Dep. 110:17–13:23, ECF No. 70.11.)
27 (Cutter Dep. 113:24–14:19, ECF No. 70.11.)
28 (Index Defs.’ Mot. Summ J. Ex. F, Dep. Ex. 12, ECF No. 70.6)
29 (Cutter Dep. 116:17–17:24, ECF No. 70.11.)
30 (Cutter Dep. 122:7–25, ECF No. 70.11.)
31 (2nd Vojnovic Aff. ¶ 25; Cutter Dep. 178:19–25, ECF No. 70.11.)
32 (Cutter Dep. 135:1–37:12, 178:19–79:2, ECF No. 70.11.)
33 (Cutter Dep. 179:21–80:22, ECF No. 67.1; 2nd Vojnovic Aff. ¶¶ 26–27.)

12. 	On 29 June 2020, Cutter, again on behalf of ARC, submitted one last non-
binding letter to Jib Jab, this time proposing a purchase price of $11 million, with
$10 million paid at closing, funded by a proposed $4.5 million SBA-guaranteed loan
from HomeTrust Bank plus $5.5 million from Essential Properties, LLC, and
approximately $500,000 in equity.34 	The proposal contemplated that the balance
would be paid on the maturity date of a 10-year, $1 million, interest-free “standby”
promissory note.35
13. 	The SBA-guaranteed loan, however, required personal guarantees from
Cutter and Vojnovic, and neither was willing to personally guarantee the loan—
Cutter because he had already personally guaranteed another outstanding SBA-
guaranteed loan to purchase an unrelated company through ARC,36 and Vojnovic
because he did not have sufficient funds to retire two outstanding SBA-guaranteed
loans made to him many years earlier that the SBA required to be paid off as a
condition of the new loan.37 To solve this problem, Vojnovic asked Cutter to pay off
his outstanding loans, which Vojnovic argued would be recorded as a partnership
expense. Cutter advised Vojnovic in a telephone call in November 2020 that he would
34 (Index Defs.’ Mot. Summ J. Ex. H, Dep. Ex. 16 4–5 [hereinafter “29 June 2020 LOI”], ECF
No. 70.8.)
35 (29 June 2020 LOI 4–5; Cutter Dep. 133:7–34:20, ECF No. 70.11.)
36 (Cutter Dep. 141:4–16, ECF No. 70.11; 2d Vojnovic Aff. ¶ 28.)
37 (Vojnovic Dep. 261:9–13, 273:10–15, ECF No. 67.5; 2d Vojnovic Aff. ¶¶ 29–33; Aff. J.
Alexander Heroy, dated 25 September 2023 Ex. Q, ECF No. 67.17.)

not pay Vojnovic’s debts.38 He also indicated that he would agree to accept a finder’s
fee in lieu of an interest in any eventual purchase of Jib Jab. Vojnovic responded that
he would take the Jib Jab opportunity to another equity source.39
14. 	By this time, it had become clear to Vojnovic, through Cutter’s words and
actions, that Cutter would not personally invest in, guarantee financing for, or
participate in the management of Jib Jab. 	Vojnovic therefore decided to move
forward with the deal on his own and performed many of the tasks originally assigned
to Cutter.40 	Vojnovic thereafter satisfied his outstanding SBA loans,41 personally
guaranteed the HomeTrust Bank loan to Holdings, and obtained from his brother the
equity needed to purchase Jib Jab.42 Holdings ultimately purchased Jib Jab in March
2021 through an SBA-guaranteed loan from HomeTrust Bank and a sale-leaseback
transaction with Essential Properties.43 	Cutter did not provide any equity, obtain
38 (Cutter Dep. 174:1–175:22, ECF No. 67.1; Vojnovic Dep. 276:15–19, ECF No. 67.5; 2d
Vojnovic Aff. ¶¶ 6, 36, 45.) According to Cutter, he and Vojnovic did not have an agreement
about how the loan balances were going to be satisfied. (Cutter Dep. 175:11–76:25, ECF No.
70.11.)
39 (Vojnovic Dep. 308:15–24. ECF No. 80.2.) Cutter also refused to pay a required $10,000
nonrefundable loan commitment fee. (2nd Vojnovic Aff. ¶ 37.)
40 (Vojnovic Dep. 196:3–11 (ECF No. 80.2), 334:7–22 (ECF No. 67.5); 2d Vojnovic Aff. ¶¶ 41–
44, 49.)
41 (2d Vojnovic Aff. Ex. D, ECF No. 72.4.)
42 (Vojnovic Dep. 301:15–17, ECF No. 67.5; 2d Vojnovic Aff. ¶¶ 50–53.)
43 (2d Vojnovic Aff. ¶ 53.)

any financing, or guarantee any loans to fund the purchase of Jib Jab, and he did not
participate at any time in the management or operation of Holdings or Jib Jab.44
II.
PROCEDURAL BACKGROUND
15. 	Cutter filed the above-captioned action on 1 July 2021, alleging that he and
Vojnovic had entered into a common law partnership which Vojnovic had breached
by closing the Jib Jab purchase without Cutter’s participation.45 Cutter also asserted
claims against Vojnovic, directly and derivatively on behalf of the alleged common
law partnership, for breach of fiduciary duty,46 tortious interference with prospective
economic advantage,47 and misappropriation.48 	Cutter asserted additional claims
against 	Holdings, 	Operating, 	and 	Franchising 	for 	tortious 	interference 	with
prospective economic advantage and for a constructive trust.49 	Cutter also sought
judicial dissolution and an accounting of the alleged common law partnership.50
44 (2d Vojnovic Aff. ¶ 58.)
45 (Compl. ¶¶ 38–44, ECF No. 3.)
46 (Compl. ¶¶ 46–48.)
47 (Compl. ¶¶ 50–53.)
48 (Compl. ¶¶ 55–59.)
49 (Compl. ¶¶ 50–53, 66–70.)
50 (Compl. ¶¶ 61–64.)

Vojnovic filed his Answer and Counterclaims on 28 October 202151 and later
dismissed his counterclaims on 21 September 2023.52
16. 	Cutter voluntarily dismissed his claims against Operating and Franchising
on 1 November 2021.53 	On 24 January 2023, the Court dismissed all of Cutter’s
derivative 	claims, 	the 	tortious 	interference 	claim 	against 	Holdings, 	and 	the
misappropriation claim against Vojnovic.54 	The Court also dismissed Cutter’s
constructive trust claim but without prejudice to Cutter’s right to seek a constructive
trust as a remedy should he prevail on any claims entitling him to such relief.
17. 	The claims now pending before the Court, and that are the subject of the
Cross-Motions, are Cutter’s claim against the alleged common law partnership for
judicial dissolution and an accounting and his claims against Vojnovic for breach of
the alleged partnership agreement, breach of fiduciary duty, and tortious interference
with prospective economic advantage.
18. 	The parties filed the Cross-Motions on 25 September 2023,55 and Defendants
filed the Motion to Strike on 6 November 2023. After full briefing, the Court held a
hearing on the Motions on 7 December 2023 (the “Hearing”), at which all parties were
represented by counsel. The Motions are now ripe for resolution.
51 (Answer and Countercls., ECF No. 14.)
52 (Notice Voluntary Dismissal Countercls. Without Prejudice, ECF No. 65.)
53 (Partial Voluntary Dismissal Without Prejudice, ECF No. 18.)
54 (Order and Op. Defs.’ Mot. Partial J. Pleadings, ¶ 32, ECF No. 53.)
55 (Pl.’s Mot. Summ. J.; Defs.’ Mot Summ. J..)

III.
LEGAL STANDARD
19. 	Under Rule 56(c), “[s]ummary judgment is appropriate ‘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
[the movant] is entitled to a judgment as a matter of law.’ ” 	Da Silva v. WakeMed,
375 N.C. 1, 10 (2020) (quoting N.C.R. Civ. P. 56(c)). “A genuine issue of material fact
‘is one that can be maintained by substantial evidence.’ ” Curlee v. Johnson, 377 N.C.
97, 101 (2021) (quoting Ussery v. Branch Banking & Tr. Co., 368 N.C. 325, 335
(2015)). “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[.]” 	DeWitt v. Eveready Battery Co., 355 N.C. 672, 681 (2002)
(cleaned up). 	“An issue is material if, as alleged, facts ‘would constitute a legal
defense, or would affect the result of the action or if its resolution would prevent the
party against whom it is resolved from prevailing in the action.’ ” 	Bartley v. City of
High Point, 381 N.C. 287, 292 (2022) (quoting Kootnz v. City of Winston-Salem, 280
N.C. 513, 518 (1972)). “When considering a motion for summary judgment, the trial
judge must view the presented evidence in a light most favorable to the nonmoving
party.” Belmont Ass’n v. Farwig, 381 N.C. 306, 310 (2022) (quoting Dalton v. Camp,
353 N.C. 647, 651 (2001)).
20. 	“The 	party 	seeking 	summary 	judgment 	bears 	the 	initial 	burden 	of
demonstrating the absence of a genuine issue of material fact.” Liberty Mut. Ins. Co.

v. Pennington, 356 N.C. 571, 579 (2002). 	The movant may meet this burden either
(1) “by proving 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 (2) “by
showing through discovery that the opposing party cannot produce evidence to
support an essential element of [its] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000)
(cleaned up). 	If the movant meets its burden, “the burden shifts to the nonmoving
party to produce a forecast of evidence demonstrating that the nonmoving party will
be able to make out at least a prima facie case at trial[.]” Cummings v. Carroll, 379
N.C. 347, 358 (2021) (cleaned up); see also N.C.R. Civ. P. 56(e).
IV.
ANALYSIS
A. 	Defendants’ Motion to Strike
21. 	The Court first turns to Defendants’ Motion to Strike since it seeks to
restrict the evidence the Court may consider on the Cross-Motions. 	The Motion to
Strike asks the Court to strike certain portions of the Affidavit of Ernest Cutter III
(the “Cutter Affidavit”),56 specifically (i) the assertion in paragraph 1 that Cutter
based the affidavit “upon personal knowledge,” (ii) Cutter’s use of “partnership” to
the extent that term asserts a legal conclusion in paragraphs 4 through 7, (iii)
Cutter’s 	use 	of 	the 	legal 	terms 	“misappropriated” 	and 	“misappropriation” 	in
56 (Cutter Aff.)

paragraphs 9 and 14, and (iv) all of the allegations in paragraph 3 and paragraphs
10 through 14.57
22. 	Rule 56(e) requires that affidavits supporting or opposing motions for
summary judgment “shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.” 	N.C.R. Civ. P. 56(e). 	A party
opposing summary judgment “may not rest upon the mere allegations or denials of
his pleading, but his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial.” Id. An
affidavit must provide “specific facts” and not rely on “indefinite generalities.”
Beasley v. Banks, 90 N.C. App. 458, 460–61 (1988). Affidavits “which set forth facts
which would not be admissible in evidence should not be considered when passing on
the motion for summary judgment.” 	Rankin v. Food Lion, 210 N.C. App. 213, 218
(2011). To that end, “[s]tatements in affidavits as to opinion, belief, or conclusions of
law are of no effect[.]” Lemon v. Combs, 164 N.C. App. 615, 622 (2004).
23. 	After a careful review of the Cutter Affidavit, the Court concludes that the
Motion to Strike should be granted in part and denied in part.
24. 	First, the allegations in paragraph 3 and paragraphs 10 through 14 offer
Cutter’s opinions concerning available financing and investor interest in Jib Jab and
lack any factual support. Cutter does not describe or identify the funding sources he
claims are available to him or the identity of the investors he claims would invest in
57 (Mot. Strike Parts Cutter Aff. 1.)

Jib Jab, nor did he disclose these alleged funding sources or investors in discovery.58
Without such supporting factual allegations, Cutter’s averments are conclusory and
speculative and may not be considered on summary judgment. 	See, e.g., S.C.
Telecomms. Grp. Holdings v. Miller Pipeline, LLC, 248 N.C. App. 243, 248 (2016)
(striking an affidavit with only conclusory statements as violating Rule 56(e)’s
personal knowledge requirement); see also, e.g., Anton v. Anton, 278 N.C. App. 150,
161 (2021) (concluding that affidavit reflecting “[p]laintiff’s bare assertion of a belief”
was “not based on any specific facts within [p]laintiff’s personal knowledge, and [was]
insufficient to overcome the specific factual evidence forecast by [d]efendants.”);
Hylton v. Koontz, 138 N.C. App. 629, 634 (2000) (“Our courts have held affirmations
based on personal awareness, information and belief, and what the affiant thinks, do
not comply with the ‘personal knowledge’ requirement of Rule 56(e).”).
25. 	Next, paragraphs 4 through 7 refer to Cutter and Vojnovic’s association as
a “partnership” and paragraphs 9 and 14 allege that Vojnovic “misappropriated” the
Jib Jab opportunity. Both terms, as used in these paragraphs, reflect an inadmissible
legal conclusion that the Court may not consider on summary judgment. 	See, e.g.,
Singleton v. Stewart, 280 N.C. 460, 467 (1972) (rejecting affidavit stating a legal
conclusion under Rule 56 and noting that an “affiant’s legal conclusion [is] not a fact
‘as would be admissible in evidence’ ”) (quoting N.C.R. Civ. P. 56(e)); Lemon, 164 N.C.
App. at 622 (“Statements in affidavits as to opinion, belief, or conclusions of law are
of 	no 	effect.”). 	Thus, 	the 	Court 	will 	strike 	Cutter’s 	use 	of 	“partnership,”
58 (Cutter Dep. 38:15–39:14 (ECF No. 80.1), 46:22–25 (ECF No. 70.11), 71:11–19 (ECF No.
70.11); Vojnovic Dep. 280:11–24, ECF No. 85.2.)

“misappropriated,” and “misappropriation” in paragraphs 4, 5, 6, 7, 9, and 14 for
asserting legal conclusions that Cutter and Vojnovic entered into a legally cognizable
partnership and that Vojnovic illegally misappropriated the Jib Jab opportunity from
Cutter.
26. 	The Court, however, will deny the Motion to Strike as to paragraph 1, which
states that the affidavit is based on Cutter’s personal knowledge, because Vojnovic’s
challenge is to the veracity of Cutter’s assertion, not its admissibility.59
27. 	For the foregoing reasons, the Court will grant Defendants’ Motion to Strike
as to paragraphs 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, and 14 of the Cutter Affidavit (the
“Stricken 	Statements”) 	but 	will 	deny 	Defendants’ 	Motion 	as 	to 	paragraph 	1.
Accordingly, the Court will not consider the Stricken Statements in resolving the
Cross-Motions.
28. 	Although not presented by separate motion, the Court also notes that
Defendants timely objected at the Hearing to Cutter’s submission of the Expert
Report of Thomas J. Molony (the “Molony Report”).60 	The Molony Report was
prepared by a well-regarded lawyer who is currently a professor at Elon University
School of Law. The Molony Report opines on partnership law and its application to
this case. 	North Carolina law is clear, however, that “while [a] legal expert may
testify regarding the factual issues facing the jury, he is not allowed to either
interpret the law or to testify as to the legal effect of particular facts.” 	Smith v.
59 (Mem. Law Supp. Mot. Strike Parts the Cutter Aff. 5, ECF No. 88.)
60 (Pl.’s Reply Further Supp. Mot. Summ. J. Ex. 3, Expert Report Thomas J. Molony, ECF
No. 85.3.)

Childs, 112 N.C. App. 672, 680 (1993). 	The Court agrees with Defendants that the
Molony Report purports to offer expert opinion on the legal effect of particular facts
as applied to this case and also to serve as an additional brief in support of Cutter’s
position that causes Cutter’s briefs on the Motion to far exceed the word limits of Rule
7 of the Business Court Rules. 	Accordingly, the Court will disregard the Molony
Report in considering the Cross-Motions.
B. 	The Cross-Motions
29. 	Both Cutter and Defendants seek summary judgment on Cutter’s remaining
claims. 	The parties’ dueling contentions can be divided into two categories: (i)
Cutter’s claims that depend on the existence of a common law partnership between
Cutter and Vojnovic—i.e., the claims for breach of the alleged partnership agreement,
breach of Vojnovic’s fiduciary duty as a member of the alleged partnership, and
judicial dissolution of and an accounting of the alleged partnership—and (ii) Cutter’s
claim for tortious interference with prospective economic advantage claim, which is
based on Vojnovic’s alleged interference with Cutter’s alleged contract with Jib Jab
and does not depend on the existence of a partnership between Vojnovic and Cutter.
The Court will examine the partnership-dependent claims first.
1. 	The Partnership-Dependent Claims61
30. 	“A partnership is an association of two or more persons to carry on as co-
owners a business for profit.” 	N.C.G.S. § 59-36. 	“A contract, express or implied, is
essential to the formation of a partnership,” Eggleston v. Eggleston, 228 N.C. 668, 674
61 The parties agree that North Carolina law governs Cutter’s partnership-dependent claims.
Based on the summary judgment record, the Court agrees.

(1948) (cleaned up), and “[a] partnership may be formed by an oral agreement.”
Campbell v. Miller, 274 N.C. 143, 149 (1968). 	“Even without proof of an express
agreement to form a partnership, a voluntary association of partners may be shown
by their conduct.” Potter v. Homestead Preservation Ass’n, 330 N.C. 569, 577 (1992).
In particular, “[a] partnership may be inferred from all the circumstances, so long as
the circumstances demonstrate a meeting of the minds with respect to the material
terms of the partnership agreement.” Compton v. Kirby, 157 N.C. App. 1, 11 (2003).
Thus, a partnership may be implied “based upon a rational consideration of the acts
and declarations of the parties, warranting the inference that the parties understood
that they were partners and acted as such.” Id. (quoting Eggleston, 228 N.C. at 674).
“[C]o-ownership and sharing of any actual profits are indispensable requisites for a
partnership.” Wilder v. Hobson, 101 N.C. App. 199, 202 (1990).
31. 	N.C.G.S. § 59-37 provides rules to determine whether a partnership exists.
Of particular relevance here, section 59-37(3)–(4) specifically provides as follows:
(3) The sharing of gross returns does not of itself establish a partnership,
whether or not the persons sharing them have a joint or common right
or interest in any property from which the returns are derived.
(4) The receipt by a person of a share of the profits of a business is prima
facie evidence that he is a partner in the business, but no such inference
shall be drawn if such profits were received in payment:
a. As a debt by installments or otherwise,
b. As wages of an employee or rent to a landlord,
c. As an annuity to a widow or representative of a deceased
partner,
d. As interest on a loan, though the amount of payment vary with
the profits of the business,
e. As the consideration for the sale of a goodwill of a business or
other property by installments or otherwise.62
62 N.C.G.S. § 59-37.

32. 	Cutter contends that he and Vojnovic entered into a partnership to purchase
Jib Jab because they agreed to split profits 50/50 and to a division of labor and
responsibility for the pursuit of the Jib Jab opportunity.63 Cutter also offers evidence
that he and Vojnovic occasionally referred to each other as “partners.”64 	Cutter
argues that this evidence entitles him to a judgment as a matter of law that he and
Vojnovic were partners in the Jib Jab opportunity or, alternatively, at a minimum,
precludes summary judgment for Defendants.
33. 	Defendants reject Cutter’s contentions and argue that there was no meeting
of the minds concerning the essential terms of any alleged partnership agreement
between them. In particular, Defendants argue that the undisputed evidence shows
that Cutter and Vojnovic never agreed to all the essential terms of a partnership,
including, in particular, to share losses jointly or to the terms and sources for the
financing of the Jib Jab purchase.65 Defendants contend that without agreement to
these terms, no partnership existed as a matter of law, and Cutter’s claims must be
dismissed.
34. 	The Court agrees with Defendants.
63 (Pl.’s. Mem. Law Supp. Mot. Summ. J. 8, ECF No. 68.)
64 (See, e.g., Aff. J. Alexander Heroy, dated 25 September 2023 Ex. C, ECF No. 67.3; Aff. J.
Alexander Heroy, dated 25 September 2023 Ex. J, ECF No. 67.10.)
65 (Mem. Law Supp. Defs.’ Mot. Summ. J. 13–18 [hereinafter “Defs.’ Br. Supp.”], ECF No. 73.)

35. 	First, our courts have held that for a partnership to exist, the parties must
agree to share profits and losses in equal or specified portions. 	See, e.g., Johnson v.
Gill, 235 N.C. 40, 44–45 (1952) (“To make a partnership, two or more persons should
combine their property, effects, labor, or skill in a common business or venture, and
share the profits and losses in equal or specified proportions[.]” (emphasis added));
see also, e.g., Reason v. Barfield, 2023 NCBC LEXIS 46, *12 (N.C. Super. Ct. Mar. 24,
2023) (“[A partnership] agreement is most often expressed optimistically as one to
share profits; however, the reverse is true as well. Partners or co-adventurers must
also agree to bear responsibility for any losses the business incurs.”); La Familia
Cosmovision, Inc. v. Inspiration Networks, 2014 NCBC LEXIS 52, *16–22 (N.C.
Super. Ct. Oct. 20, 2014) (relying, in part, on parties’ lack of agreement to share losses
to conclude that no partnership existed between them and concluding that “[t]he
general rule under the Uniform Partnership Act, and other law, is that an agreement
to share losses as well as profits is essential to the existence of a partnership.”
(citation omitted)).66
66 Other jurisdictions also recognize this rule. See, e.g., Eagan v. Gory, 374 Fed. Appx. 335,
339 (3d Cir. 2010) (“The obligation to share losses ‘is one of the most important indicia of a
partnership’ ”) (quoting Yonadi v. Comm’r, 21 F.3d 1292, 1297 (3d Cir. 1994)); Van Hoose v.
Smith, 355 Mo. 799, 804 (1946) (Under Missouri law, “it is not sufficient to create a
partnership that the parties were to share the profits of a given enterprise or transaction.
They must also have agreed, that is, intended to share the losses and to become partners.”);
True v. Hi-Plains Elevator Mach., Inc., 577 P.2d 991 (Wyo. 1978) (Under Wyoming law,
absence of a “mutual interest” to share “in the profits derived from the venture and the losses
sustained in its operation” is “conclusive evidence that a partnership . . . does not exist[.]”);
Grunstein v. Silva, 2014 Del. Ch. LEXIS 167, at *53, (Del. Ch. Sept. 5, 2014) (Under Delaware
law, “the hallmark of a partnership is the common obligation to share losses as well as
profits[.]” (cleaned up)).

36. 	While Cutter and Vojnovic agree that they agreed to share profits, it is
undisputed that neither party has offered evidence that they agreed to share any
losses that the alleged partnership might suffer. To the contrary, Cutter’s testimony
establishes that he and Vojnovic did not reach such an agreement:
Q. 	Was there any understanding about what would happen if like – to the
losses? Who would – would incur the losses?
A. 	No.
Q. 	There was no understanding about that?
A. 	No.67
37. 	The 	Court 	thus 	finds 	that 	Cutter and Vojnovic’s 	failure 	to 	reach 	an
agreement concerning the sharing of losses is fatal to Cutter’s contention that he and
Vojnovic entered into an enforceable partnership agreement to purchase Jib Jab. See,
e.g., Reason, 2023 NCBC LEXIS 46, at *14 (recognizing that a plaintiff must “present
evidence that the parties’ agreement was not limited to sharing only the upside of
their venture”).
38. 	Nevertheless, even if the absence of an agreement to share losses was not
determinative, that fact, when combined with other undisputed evidence discussed
below, further compels the conclusion that Cutter and Vojnovic did not enter into an
enforceable partnership agreement as a matter of law.
39. 	For example, it is undisputed that Cutter never agreed to put his personal
assets at risk at any time and that he consistently refused to guarantee or assume
67 (Cutter Dep. 77:6–12, ECF No. 70.11.)

personal 	liability 	on 	any 	financing 	for the 	alleged 	partnership–a 	requirement
consistently demanded by every lender.68 	Indeed, Vojnovic was the only party to
assume personal liability.69 The North Carolina courts have found that a partnership
did not exist where, as here, one of the alleged partners did not bear any risk of loss.
See, e.g., Rothrock v. Naylor, 223 N.C. 782, 787–88 (1944) (finding existence of owner-
independent contractor relationship rather than partnership, noting that one party
bore no risk of any possible loss); La Familia Cosmovision, Inc., 2014 NCBC LEXIS
52, *20–21 (finding no partnership in part because plaintiff did not share in any risk
of loss).
40. 	The evidence is also undisputed that Cutter and Vojnovic never reached an
agreement concerning the financing for the proposed purchase. 	Financing was
critical to Cutter and Vojnovic’s ability to purchase Jib Jab70 and clearly was a
material term of their purported partnership agreement, yet the evidence shows that
Cutter and Vojnovic could never agree to the same financing terms, with the same
lender, at the same time. 	Although Cutter and Vojnovic hoped to purchase Jib Jab
together, their inability to agree to this essential term of their contemplated
transaction prevented them from ever becoming co-owners and sharing profits in the
68 (Cutter Dep. 141:4–16, ECF No. 70.11; 2d Vojnovic Aff. ¶ 28.)
69 (Vojnovic Dep. 196:3–11 (ECF No. 80.2), 301:15–17 (ECF No. 67.5), 334:7–22 (ECF No.
67.5); 2d Vojnovic Aff. ¶¶ 41–44, 49, 50–53, Ex. D.)
70 (Aff. J. Alexander Heroy, dated 25 September 2023 Ex. G, ECF No. 67.7; 2d Aff. J.
Alexander Heroy, dated 25 October 2023 Ex. V, ECF No. 80.3; see also Cutter Dep. 126:15–
27:7 (“Unless you get the money, you don’t have a deal.”), ECF No. 70.11; Vojnovic Dep.
119:21–25, ECF No. 80.2).

purported common law partnership and is fatal to Cutter’s claim that a partnership
existed between them. 	See, e.g., Miller v. Rose, 138 N.C. App. 582, 590 (2000)
(concluding that no partnership existed between alleged partners who did not agree
to financing for their contemplated transaction because financing was “essential” to
the purported partnership); Compton, 157 N.C. App. at 11 (requiring “a meeting of
the minds with respect to the material terms of the partnership agreement”).71
41. 	The undisputed evidence also establishes that the relationship between
Cutter and Vojnovic lacked many indicia of an enforceable partnership. For example,
they did not register a partnership name, make capital contributions to a partnership
entity, set up bank accounts for a purported partnership, or file partnership tax
returns. 	See, e.g., La Familia Cosmovision, Inc., 2014 NCBC LEXIS 52, at *22
(identifying 	“a 	variety 	of 	traditional 	indicia 	supporting 	the 	existence 	of 	a
partnership”). 	They also never shared profits since they never got their purported
partnership off the ground.
71 Plaintiff places great weight on an unpublished opinion of the Court of Appeals, Grub, Inc.
v. Sammy’s Seafood House & Oyster Bar, LLC, No. COA14-861, 2015 N.C. App. LEXIS 330
(Apr. 21, 2015), as support for its contention that a partnership existed between Cutter and
Vojnovic. 	Unlike here, however, Grub, Inc. did not involve an issue about financing the
acquisition of property. 	Moreover, Rule 30(e) of the North Carolina Rules of Appellate
Procedure expressly provides both that “[a]n unpublished decision of the North Carolina
Court of Appeals does not constitute controlling legal authority” and further that “citation of
unpublished opinions in briefs, memoranda, and oral arguments in the trial and appellate
divisions is disfavored, except for the purpose of establishing claim preclusion, issue
preclusion, or the law of the case.” 	N.C.R. App. P. 30(e). 	Given that Miller, Compton, La
Familia Cosmovision, Inc. and the other published decisions cited above adequately supply
the rule of decision here, the Court finds little reason to find an exception to Rule 30(e) and
to consider Grub, Inc. in connection with the Cross-Motions.

42. 	It is also undisputed that, to purchase Jib Jab, Cutter and Vojnovic
established Holdings as a Georgia limited liability company—not as a North Carolina
general partnership—indicating that both men sought to pursue their business
relationship 	together 	with 	limited 	liability 	protections 	that 	would 	have 	been
unavailable to them had they proceeded as partners in a general partnership. Also,
the undisputed evidence shows that, at all times, Vojnovic was Holdings’ only
registered owner, so the two men never “co-owned” any purported partnership
property.72 	See Wilder, 101 N.C. App. at 202 (noting that “co-ownership” is an
“indispensable requisite[ ] for a partnership.”).
43. 	Further, while Cutter argues that he and Vojnovic agreed to a division of
labor for the alleged partnership, the testimony from both Cutter and Vojnovic
indicates that this agreement remained at a high level—Cutter would obtain
financing and close the deal and Vojnovic would handle operations—without a more
detailed division of responsibility.73 	Since a partnership agreement will not be
enforced unless it reflects agreement as to all material terms, see, e.g., Compton, 157
N.C. App. at 11, Cutter and Vojnovic’s failure to agree to specific, material terms of
the division of labor within their purported partnership is further undisputed
evidence that a partnership did not exist between them.
72 (See Cutter Dep. 119:18–20:4, ECF Nos. 67.1, 70.11; Vojnovic Aff. ¶¶ 34, 36.)
73 (Vojnovic Dep. 97:21–98:1 (ECF Nos. 67.5, 80.2), 99:23–100:4 (ECF No. 80.2); Cutter Dep.
78:8–19, ECF No. 70.11.)

44. 	Finally, the fact that Cutter and Vojnovic may have referred to themselves
as partners from time to time is without determinative legal effect. As our Supreme
Court has made clear, “[i]t is appropriate to regard the substance, not the form, of a
transaction as controlling, and [a court is] not bound by the labels which have been
appended to the episode by the parties.” 	Branch Banking & Tr. Co. v. Creasy, 301
N.C. 44, 53 (1980); see, e.g., MAS Assocs., LLC v. Korotki, 465 Md. 457, 484 (2019)
(“Nor does the use of words like ‘partner’ or ‘owner’ magically transform a given
association into a partnership.”); Murphy v. McDermott, Inc., 807 S.W.2d 606, 613
(Tex. Ct. App. 1991) (holding that the fact that one party referred to another as a
partner was a legal conclusion that “does not give rise to an issue of a disputed
fact[.]”).
45. 	Accordingly, based on the above, the Court concludes as a matter of law on
the undisputed evidence of record that a partnership did not exist between Cutter
and Vojnovic in connection with the Jib Jab opportunity. As a result, the Court will
deny Plaintiff’s Motion and grant Defendants’ Motion as to Cutter’s claims for breach
of the alleged partnership agreement, breach of Vojnovic’s fiduciary duty as a member
of the alleged partnership, and judicial dissolution of and an accounting of the alleged
partnership. Those claims shall therefore be dismissed with prejudice.
2. 	The Tortious Interference with Prospective Economic Advantage Claim
46. 	The parties also seek summary judgment on Cutter’s claim against Vojnovic
for tortious interference with prospective economic advantage, arguing that, but for
Vojnovic’s interference and usurpation of the Jib Jab opportunity, Cutter would have

been able to purchase Jib Jab. Defendants argue that Cutter has not offered evidence
showing that he could have purchased Jib Jab without Vojnovic’s participation.
47. 	Tortious interference with prospective economic advantage “arises when a
party interferes with a business relationship ‘by maliciously inducing a person not to
enter into a contract with a third person, which he would have entered into but for
the interference, [ ] if damage proximately ensues, when this interference is done not
in the legitimate exercise of the interfering person’s rights.’ ” 	Beverage Sys. of the
Carolinas, LLC v. Associated Beverage Repair, LLC, 368 N.C. 693, 701 (2016) (quoting
Spartan Equip. Co. v. Air Placement Equip. Co., 263 N.C. 549, 559 (1965)). 	“A
plaintiff’s mere expectation of a continuing business relationship is insufficient to
establish such a claim. 	Instead, a plaintiff must produce evidence that a contract
would have resulted but for the defendant’s malicious intervention.” 	Beverage Sys.
of the Carolinas, LLC, 368 N.C. at 701 (internal citation omitted).74
74 Defendants contend that under North Carolina’s choice of law rules, Cutter’s tortious
interference claim may be governed by the laws of North Carolina (Cutter’s residence),
Georgia (Vojnovic’s residence), or Ohio (the restaurants’ location). 	(Defs.’ Br. Supp. 21.)
Plaintiff argues that North Carolina law applies to this claim. (Pl.’s Mem. Law Opp’n Defs.
Mot. Summ. J. 16, ECF No. 79.) 	All parties agree, however, as does the Court, that the
dispute is academic because the law concerning tortious interference with prospective
economic advantage is substantially the same in each of these States. 	Compare Beverage
Sys. of the Carolinas, LLC, 368 N.C. at 701, with Chrvala v. Borden, Inc., 14 F.Supp.2d 1013,
1023 (S.D. Ohio) (“Under Ohio law, to prevail on a claim for tortious interference with a
prospective business opportunity, a plaintiff must demonstrate: 1) the existence of the
prospect of a business relationship; 2) that defendant knew of the plaintiff’s prospective
relationship; 3) that defendant intentionally and materially interfered with the plaintiff’s
prospective relationship; 4) without justification; and 5) caused plaintiff to suffer damages.”),
and OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 150 (2009) (“To prevail on
a claim of tortious interference with business relations, a plaintiff must prove the following
elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the
defendant acted purposely and with malice with the intent to injure; (3) the defendant
induced a breach of a contractual obligation or caused a party or a third party to discontinue

48. 	Cutter’s contention that he could have purchased the restaurant but for
Vojnovic’s 	interference 	is 	supported 	only 	by 	speculation 	and 	conjecture, 	not
admissible evidence. Indeed, while Cutter suggests that he knew individuals he could
have either enlisted to operate the business or contacted to help him find an
operator,75 he has not offered evidence identifying any of these individuals and their
qualifications and experience, indicating these individuals’ willingness to assist
Cutter in operating the Jib Jab business, or providing that Cutter even reached out
to any of these individuals to gauge their interest in operating Jib Jab. 	Instead, he
posits only his conjecture that he could have found these individuals if he had tried
to locate them. Such speculation is insufficient to create an issue of fact under Rule
56. 	See, e.g., Henson v. Green Tree Servicing LLC, 197 N.C. App. 185, 189 (2009)
(noting that, under Rule 56, “[t]he plaintiff must offer evidence, beyond mere
speculation or conjecture, sufficient for a jury to find every essential element of [its]
claim.”) (cleaned up); Ramey Kemp & Assocs. v. Richmond Hills Residential Partners,
LLC, 225 N.C. App. 397, 404 (2013) (requiring party opposing summary judgment to
present 	“admissible 	evidence, 	as 	compared 	to 	mere 	speculation 	or 	conclusory
assertions, demonstrating the existence of a genuine issue of material fact” once
movant provided evidence tending to show a lack of genuine issue of material fact).
or fail to enter into an anticipated relationship with the plaintiff; and (4) the defendant’s
tortious conduct proximately caused damage to the plaintiff.”).
75 (Cutter Dep. 38:15–39:21, ECF No. 80.1.)

49. 	Cutter’s speculation is also completely at odds with the undisputed evidence
establishing that Cutter had no experience or expertise in the restaurant industry,
that he had never before bought or invested in a restaurant,76 that he was not aware
of anyone other than Vojnovic who could qualify as Jib Jab’s operator,77 and his
testimony that “if [Vojnovic] did not want to partner this deal at this point [November
2019], [Cutter] was not going to go through the effort of trying to find another partner
to get the deal done.”78
50. 	Similarly, Cutter’s contention that he could have obtained funding from
other sources, including other equity investors, to purchase Jib Jab is likewise
supported only by Cutter’s speculation. 	Cutter has not offered evidence identifying
these alleged sources, their willingness and wherewithal to invest in or provide
financing for a Jib Jab purchase, the terms of any such investment or available
financing, or that Cutter ever contacted any of these sources to gauge their interest
in investing in or providing financing for the Jib Jab purchase, much less to obtain
their commitment.79 	Indeed, Cutter admits that he “did not go out and try to find
other sources of capital” after he refused to discharge Vojnovic’s prior SBA loans.80
76 (Cutter Dep. 37:15–38:8 (ECF No. 80.1), 46:1–7 (ECF No. 70.11), 68:22–69:1 (ECF No. 93).)
77 (Cutter Dep. 38:15–18, ECF No. 80.1.)
78 (Cutter Dep. 71:11–19, ECF Nos. 67.5, 70.11.)
79 Vojnovic also testified that Cutter claimed to have other available financing options but
never identified them with particularity. (Vojnovic Dep. 280:11–24, ECF No. 85.2.)
80 (Cutter Dep. 176:18–23, ECF No. 70.11.)

51. 	The undisputed evidence also shows that Cutter’s and Vojnovic’s attempts
to find financing for the Jib Jab purchase were unsuccessful, except for the SBA loan
through HomeTrust Bank, and Cutter testified that he could not provide the required
personal guarantee for that loan because of his previous SBA loan through ARC.81
Thus, Cutter’s contention that he could have funded the Jib Jab purchase is based
solely on speculation, not evidence, and therefore cannot create a disputed material
fact under Rule 56. See, e.g., Henson, 197 N.C. App. at 189; Ramey Kemp & Assocs.,
225 N.C. App. at 404.
52. 	Accordingly, because Cutter has failed to offer any competent “evidence that
a contract would have resulted but for the defendant’s malicious intervention,”
Beverage Sys. of the Carolinas, LLC, 368 N.C. at 701, Defendants are entitled to
summary 	judgment 	dismissing 	Cutter’s 	claim 	for 	tortious 	interference 	with
prospective economic advantage with prejudice. 	See also, e.g., Weiler v. DLR Grp.,
2023 Ohio App. LEXIS 1177, *10–11 (2023) (“In order to substantiate a claim for
tortious interference with a prospective business relationship or contract, a plaintiff
must include allegations of fact demonstrating the existence of ‘an actual prospective
contractual relation’ that but for the interference, would have been consummated.”);
Camp 	v. 	Eichelkraut, 	246 	Ga. 	App. 	275, 	283 	(2000) 	(“An 	award 	for 	tortious
interference with prospective business relations cannot be based on speculation that
a relationship would develop.”).
81 (Cutter Dep. 135:13–37:12, 141:4–16, ECF No. 70.11.)

V.
CONCLUSION
53. 	WHEREFORE, the Court hereby:
a. 	GRANTS Defendants’ Motion to Strike as to paragraphs 3, 4, 5, 6, 7, 9,
10, 11, 12, 13, and 14 of the Cutter Affidavit;
b. 	DENIES Defendants’ Motion to Strike as to paragraph 1 of the Cutter
Affidavit;
c. 	DENIES Plaintiff’s Motion;
d. 	GRANTS Defendants’ Motion; and therefore
e. 	DISMISSES Plaintiff’s remaining claims with prejudice.
SO ORDERED, this the 16th day of February, 2024.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge