Butler v. Millennium Advisors, LLC
N.C. Ct. App.
Opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 25-166
Filed 7 January 2026
Mecklenburg County, No. 23CVS001064-590
MAXIMILIAN BUTLER, Plaintiff,
v.
MILLENNIUM ADVISORS, LLC, MICHAEL HEALY, and DAVID CHAPELLE,
Defendants.
Appeal by plaintiff from order entered 28 March 2024 by Judge Bradley B.
Letts in Mecklenburg County Superior Court. Heard in the Court of Appeals 26
August 2025.
Gardner Skelton PLLC, by Nicole K. Haynes, Jared E. Gardner and Jon P.
Carroll for plaintiff-appellant.
Nelson Mullins Riley & Scarborough LLP, by Phillip J. Strach, Cassie A. Holt
and Alyssa M. Riggins for defendant-appellees.
DILLON, Chief Judge.
This case arises from a dispute over an alleged failure to pay wages. Plaintiff
contends that Defendants acted in violation of the North Carolina Wage and Hour
Act for unpaid Unit Incentive Bonus Agreement units and severance benefits among
other claims. For the reasons stated below, we affirm the trial court’s decision.
BUTLER V. MILLENNIUM ADVISORS, LLC
Opinion of the Court
I. Background
In 2013, Plaintiff Maximilian Butler began working for Defendant Millennium
Advisors, LLC, a broker-dealer bond trading firm. Most of Plaintiff’s compensation
was in the form of Unit Incentive Bonuses (“UIBs”). Each year during his
employment, Plaintiff would sign a UIB Agreement which specified the number of
Common Units in Millennium that he would be granted. Each UIB had a vesting
schedule that was set to begin three years after the date of the UIB agreement, and
it would span over three annual issuances. Additionally, each UIB Agreement had a
non-compete clause, stating that Defendant “shall have the option to terminate [the
UIB] Agreement for cause” if Plaintiff were to compete after termination.
The relationship between Plaintiff and Defendant became strained. As a
result, on 25 October 2019, Plaintiff entered an “employment, severance, release and
waiver agreement” (the “Release Agreement”) with Defendant to exit the company.
In this agreement, Plaintiff was paid a $100,000 severance payment in exchange for
compliance with the terms and conditions of the agreement. Additionally, Plaintiff
had the potential to be paid an additional $300,000 subject to the condition that he
would not perform the same or similar services for one of Defendant’s competitors
unless Defendant gave advance written consent for him to do so.
On 28 August 2020, Plaintiff emailed Defendant to inquire regarding what
type of work he could do to not violate the prior agreements he signed with Defendant.
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Opinion of the Court
Defendant advised Plaintiff to seek legal counsel, as they could not answer this
question. On 25 November 2020, Plaintiff again reached out to Defendant to ask if
accepting employment from Zeus Financial would impact his agreements with
Defendant. Defendant asked Plaintiff to email a copy of the job description. Plaintiff
informed Defendant that the offer letter did not list the specific job responsibilities of
his new role. Defendant did not respond, Plaintiff did not follow up and provide a job
description, and Plaintiff accepted employment from Zeus Financial as a Structured
Product Analyst on 30 November 2020. After conducting research on the company
and Plaintiff’s role, Defendant believed that Plaintiff was working for a direct
competitor. As a result, Defendant notified Plaintiff that his unvested units and
agreements were cancelled for “cause.”
After extensive back and forth, Plaintiff and Defendant were unable to come
to an agreement regarding Plaintiff’s new role and a compromise on the unpaid UIBs
or severance payment. As a result, on 7 February 2023, Plaintiff filed suit against
Millennium Advisors, LLC, Michael Healy, and David Chappelle (“Defendants”)
alleging claims for: (1) violation of the North Carolina Wage and Hour Act
(“NCWHA”), (2) breach of contract, (3) breach of the covenant of good faith and fair
dealing, (4) unfair and deceptive trade practices (“UDTP”), and (5) unjust enrichment.
Plaintiff moved for partial summary judgment for the breach of contract claim, and
Defendants moved for summary judgment on all claims. On 28 March 2024, the trial
court entered an order denying Plaintiff’s motion for summary judgment and
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BUTLER V. MILLENNIUM ADVISORS, LLC
Opinion of the Court
granting Defendants’ motion for summary judgment regarding the NCWHA and
UDTP claims.
Millennium moved for attorneys’ fees and costs pursuant to the NCWHA and
UDTP based on the summary judgment order. Subsequently, Plaintiff moved for the
trial court to reconsider its order on summary judgment. On 25 September 2024, the
trial court entered an order denying both the motion for attorneys’ fees and
reconsideration. Plaintiff appealed.
II. Jurisdiction
The trial court’s grant of partial summary judgment is interlocutory. Liggett
Group v. Sunas, 113 N.C. App. 19, 23 (1993). And Plaintiff has not indicated that the
order affects a substantial right. However, the trial court did certify the matter for
immediate appeal pursuant to Rule 54(b) of our Rules of Civil Procedure.
A Rule 54(b) certification is effective to certify an otherwise interlocutory
appeal only if the trial court has entered a final judgment with regard to a party or a
claim in a case which involves multiple parties or multiple claims. See DKH Corp. v.
Rankin–Patterson Oil Co., 348 N.C. 583 (1998). In other words, a Rule 54(b)
certification is only effective if the partial summary judgment order is final and
removes a party or claim entirely from the case.
Here, the partial summary judgment was final as to two of the five claims.
Therefore, the Rule 54(b) certification is effective as to those claims to confer
appellate jurisdiction.
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BUTLER V. MILLENNIUM ADVISORS, LLC
Opinion of the Court
III. Analysis
Plaintiff raises three issues on appeal. First, Plaintiff asserts the trial court
reversibly erred by granting Defendant’s motion for summary judgment regarding
the NCWHA for failure to pay wages pursuant to the UIB Agreement. Second,
Plaintiff asserts the trial court reversibly erred by granting Defendant’s motion for
summary judgment regarding the NCWHA for failure to pay wages pursuant to the
employment and severance agreement. Finally, Plaintiff argues the trial court
reversibly erred by granting Defendant’s motion for summary judgment pertaining
to the UDTP claim. We address each in turn.
“The standard of review for summary judgment is de novo.” Forbis v. Neal,
361 N.C. 519, 524 (2007).
A. Failure to pay wages pursuant to the UIB Agreement
First, Plaintiff argues that the trial court erred in granting Defendant’s motion
for summary judgment regarding the NCWHA claim for failure to pay wages
pursuant to the UIB Agreements. The initial complaint, however, only claimed a
violation of the Wage and Hour Act regarding the “severance payment.” It did not
mention the UIB agreement or payments until count two of the complaint, pertaining
to a breach of contract.
“Because a contention not made in the court below may not be raised for the
first time on appeal . . . the [contention] was not properly presented . . . and is
therefore not properly before this Court.” Higgins v. Simmons, 324 N.C. 100, 103
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Opinion of the Court
(1989) (citing Plemmer v. Matthreson, 281 N.C. 722(1972)). “A party may not exchange his trial horse for what he perceives to be a steadier mount on appeal.”Id.
(citing State v. Benson,323 N.C. 318
(1988)).
The issue regarding a failure to pay wages under the NCWHA pursuant to the
UIB Agreement was never addressed at the trial level, in the initial claims or in any
motion for summary judgment. Because it was not brought up at the trial level, the
issue is being raised for the first time on appeal to our Court. Therefore, this issue is
not properly before us and we decline to address the merits of this issue.
B. Failure to pay wages pursuant to the Severance Agreement
Second, Plaintiff contends the trial court erred by granting Defendant’s motion
for summary judgment regarding the NCWHA claim for failure to pay wages
pursuant to the Severance Agreement.
The North Carolina Wage and Hour Act, N.C.G.S. § 95-25.1 et seq., was
“enacted to safeguard the hours worked by and the wages paid to the people of the
State without jeopardizing the competitive position of North Carolina business and
industry.” Horack v. Southern Real Estate Co. of Charlotte, Inc., 150 N.C. App. 305,
309 (citation omitted). An employer who violates the NCWHA is liable to the
employee for wages owed. N.C.G.S. § 95-25.22(a). NCWHA defines wage as
compensation for labor or services rendered by an employee
whether determined on a time, task, piece, job, day,
commission, or other basis of calculation, and the
reasonable cost as determined by the Commissioner of
furnishing employees with board, lodging, or other
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Opinion of the Court
facilities. For the purposes of G.S. 95-25.6 through G.S. 95-
25.13 includ[ing] sick pay, vacation pay, severance pay,
commissions, bonuses, and other amounts promised when
the employer has a policy or a practice of making such
payments.
N.C.G.S. § 95-25.2(16). “A statute such as this one, “that is free from ambiguity,
explicit in terms and plain of meaning must be enforced as written, without resort to
judicial construction.” Washburn v. Yadkin Valley Bank and Trust Co., 190 N.C. App.
315, 324 (2008) (citation omitted).
The “Severance Compensation” section of the Severance Agreement states in
part as follows:
Contingent upon execution of this Agreement by Employee
. . . the Company shall pay to the Employee (i) $100,000.00
(six months at current base salary), for and in
consideration of the provisions . . . and other terms and
conditions of this Agreement (the “Severance Payment”). .
. . Additionally, the Company will pay Employee $300,000
which will vest and be paid on March 31, 2022 if Employee
does not, without the advance and written consent of the
Company, directly or Indirectly, Compete where the
Employee is to perform, directly or Indirectly, any services
which are the same or similar to the services performed or
provided by the Employee for the Company or its Affiliates.
The Severance Agreement clearly states that the initial $100,000 would be
paid to Plaintiff as a severance payment, whereas the remaining $300,000 would be
vested and paid on 31 March 2022 if Plaintiff did not enter into work with a
competitor without advance written notice and consent from Defendant. It is
undisputed that Plaintiff received the full $100,000 Severance Payment. Because the
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Opinion of the Court
definition of wage is fully enumerated, and non-compete compensation is not listed
as a form of wage under the NCWHA, the remaining $300,000 is not considered a
wage and thus the NCWHA is not applicable.
C. UDTP claims
Finally, Plaintiff contends that the trial court erred by granting Defendant’s
motion for summary judgment regarding the UDTP claims. Specifically, Plaintiff
contends that Defendant’s actions constitute an unfair or deceptive trade practice
because it affects commerce by suppressing “competition” and its actions are
deceptive, immoral, unethical, oppressive, and/or unscrupulous.
“To prevail on a claim of unfair and deceptive trade practice a plaintiff must
show (1) an unfair or deceptive act or practice, or an unfair method of competition,
(2) in or affecting commerce, (3) which proximately caused actual injury to the
plaintiff or to his business.” Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450, 460– 61 (1991); see also N.C.G.S. § 75-1.1. The statute does not apply to every transaction that might be viewed as unfair or deceptive but applies only if the alleged violator is engaged in “commerce.” Faucette v. 6303 Carmel,242 N.C. App. 267, 275
(2015).
“A trade practice is deceptive if it has the capacity or tendency to deceive.”
Branch Banking and Trust Co. v. Thompson, 107 N.C. App. 53, 61-62(1992) (internal quotation omitted). Actions which are considered to be unfair or deceptive trade practices are distinguishable from actions for a breach of contract, Lapierre v. Samco Dev. Corp.,103 N.C. App. 551, 559
(1991), and “a mere breach of contract, even if
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Opinion of the Court
intentional, is not sufficiently unfair or deceptive to sustain an action under N.C.G.S.
§ 75–1.1.” Branch Banking and Trust Co., 107 N.C. App. at 62(citing Mosley & Mosley Builders, Inc. v. Landin Ltd.,97 N.C. App. 511, 518
(1990)). Additionally, our Court has held that “a plaintiff must show substantial aggravating circumstances attending the breach to recover under the Act, which allows for treble damages.” Branch Banking and Trust Co.,107 N.C. App. at 62
(citing Bartolomeo v. S.B. Thomas, Inc.,889 F.2d 530, 535
(4th Cir. 1989)).
Plaintiff failed to meet the burden of showing any substantial aggravating
circumstances to show that Defendant’s actions were more than an alleged breach of
contract. Therefore, the trial court did not err in granting summary judgment
regarding the UDTP claim.
IV. Conclusion
For the reasoning stated above, we hold that the trial court did not err in
granting partial summary judgment for the Defendants pertaining to the NCWHA
and UDTP claims.
AFFIRMED.
Judges STROUD and GORE concur.
Report per Rule 30(e).
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