The opinion of the court was delivered by: Hon. Norman A. Mordue, D.J.
MEMORANDUM-DECISION AND ORDER
Presently before the Court are the following motions: (1) motion for summary judgment (Dkt. No. 90) by Sean McNamee, defendant in Dale R. Brodeur, Sr. v. Sean McNamee, William Brodeur, and Northeast Fabricators, LLC., 3:02-CV-823; (2) motion for summary judgment (Dkt. No. 98) by William Brodeur and Northeast Fabricators, LLC., defendants in the same action, 3:02-CV-823; and (3) motion for summary judgment (Dkt. No. 49) by William Brodeur, defendant in Dale R. Brodeur, Sr., Dale R. Brodeur, Jr., and Cindy Brodeur v. William Brodeur, 3:02-CV-846. For the reasons set forth below, the motions are denied.
In 1989, Fabricated Metals for Electronics, Inc. ("FME"), executed a promissory note personally guaranteed by Dale R. Brodeur, Sr. ("Brodeur, Sr.") and secured by a second mortgage on property owned by FME at 30-35 Williams Street, Walton, New York. Following FME's bankruptcy in 1990, Industrial Metal Fabrications of Delaware County, Inc. ("IMF") purchased FME's assets. Dale R. Brodeur, Jr. ("Brodeur, Jr.") and Cindy Brodeur were IMF's shareholders. William Brodeur was IMF's Secretary.
IMF experienced financial problems, and in early 1997 William Brodeur authored three handwritten documents, dated January 12, 20 and 24, 1997, concerning distribution of IMF's debts and liabilities. The January 12, 1997 writing is William Brodeur's proposal. The January 20, 1997 writing is a "letter of intent" signed by Brodeur, Jr. and Cindy Brodeur indicating their "agreement in principle" to the proposal. The January 24, 1997 document is a proposal to Trinity Capital Corp., IMF's major secured creditor, signed by all four Brodeurs. These writings bear on one of the actions herein, Dale R. Brodeur, Sr., Dale R. Brodeur, Jr., and Cindy Brodeur v. William Brodeur, 3:02-CV-846.
Subsequently, at least some of the parties herein signed a typewritten or computer-generated document dated July 24, 1997 (or possibly July 27, 1997; the handwritten date is unclear) (hereinafter, "the alleged July 1997 agreement"), which is the subject of the other action herein, Dale R. Brodeur, Sr. v. Sean McNamee, William Brodeur, and Northeast Fabricators, LLC., 3:02-CV-823. Pursuant to the alleged July 1997 agreement, certain IMF assets were to be transferred to Northeast Fabricators, LLC. ("Northeast"), and Northeast was to satisfy certain IMF debt. William Brodeur and Sean McNamee were principals of Northeast. The alleged July 1997 agreement set forth mutual general releases and also provided that "Northeast hereby agrees to hold Dale R. Brodeur, Sr. and IMF harmless from any liability in connection with all indebtedness secured by mortgages upon the premises at 35 Williams Street, Walton, New York." Through assignments, FME's promissory note (guaranteed by Brodeur, Sr.) was transferred to Northeast, and then to Sean McNamee. It appears that on March 29, 2000, IMF was dissolved by the New York Secretary of State for nonpayment of taxes.
In July 2000, Brodeur, Sr. and others commenced an action in New York State Supreme Court, Delaware County, Brodeur, et al. v. Hayes, et al., Index. No. 2000-532. In that action, Brodeur, Sr. claimed, inter alia, that William Brodeur, Sean McNamee and Northeast had schemed to take over the assets and business opportunities of IMF and that William Brodeur had engaged in self-dealing and otherwise breached his fiduciary duties as an officer of IMF. Sean McNamee interposed a counterclaim in that action seeking judgment on Brodeur, Sr.'s guarantee of the FME note. Sean McNamee moved for summary judgment on the counterclaim. In opposition to the motion, Brodeur, Sr. asserted the defense of release. Specifically, Brodeur, Sr. contended that the alleged July 1997 agreement was valid and enforceable, and that the provisions of that agreement released him from his obligation on the guarantee.
In a decision in the New York action, dated January 18, 2002, Hon. Patrick D. Monserrate, Justice of the Supreme Court, Delaware County, New York, treated the alleged July 1997 agreement as valid and held that Brodeur, Sr. had waived the affirmative defense of release by failing to plead it.*fn1
Accordingly, Judge Monseratte granted summary judgment to Sean McNamee on his counterclaim on the guarantee. Sean McNamee thereafter entered judgment against Brodeur, Sr. in New York and moved to enforce the judgment in North Carolina, where Brodeur, Sr. resided. In August 2002, in furtherance of his enforcement efforts, Sean McNamee obtained an "Order Granting Motion to Enforce" in the General Court of Justice, Superior Court Division, New Hanover County, State of North Carolina.
On March 25, 2002, Judge Monseratte issued another decision in the New York action. Among the issues determined, he held that William Brodeur and Northeast had demonstrated as a matter of law that the transfer to them of IMF assets was not a pattern of self-dealing and breach of fiduciary duty, but rather was done in accordance with the handwritten January 12 and 20, 1997 documents, and with the full knowledge and consent of Brodeur, Jr. and Cindy Brodeur, IMF's shareholders. Judge Monseratte thus granted partial summary judgment to William Brodeur and Northeast dismissing certain claims against them.
In his complaint in this Court in Dale R. Brodeur, Sr. v. Sean McNamee, William Brodeur, and Northeast Fabricators, LLC., 3:02-CV-823, filed June 21, 2002, Brodeur, Sr. claims that Sean McNamee breached the alleged July 1997 agreement by entering judgment against Brodeur, Sr. in New York based on Judge Monseratte's January 18, 2002 decision granting summary judgment to Sean McNamee on the guarantee, and by pursuing collection activities in North Carolina based on the New York judgment. Brodeur, Sr. further claims that by virtue of the alleged July 1997 agreement, William Brodeur and Northeast are bound to defend him from Sean McNamee's claim based on the guarantee and to hold him harmless from Sean McNamee's judgment, but have failed to do so.
In their amended complaint in this Court in Dale R. Brodeur, Sr., Dale R. Brodeur, Jr., and Cindy Brodeur v. William Brodeur, 3:02-CV-846, commenced June 26, 2002, Brodeur, Sr., Brodeur, Jr. and Cindy Brodeur sue William Brodeur. They rely on the three handwritten writings authored by William Brodeur dated January 12, 20 and 24, 1997, concerning distribution of the assets and liabilities of IMF. Plaintiffs point to Judge Monseratte's March 25, 2002 decision, wherein he treats the three January 1997 papers as constituting the parties' agreement. Plaintiffs contend that pursuant to that agreement William Brodeur was required to borrow $450,000 and use it to pay IMF's liabilities, with the purpose of freeing IMF's shareholders, Brodeur, Jr. and Cindy Brodeur, from IMF's debt. Plaintiffs claim that William Brodeur breached that agreement by, inter alia, failing to pay IMF's payroll taxes and other payables, thus causing plaintiffs to be "held liable for IMF indebtedness that ...