Professional Documents
Culture Documents
No. 13-2321
No. 13-2362
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:10cv00005RLVDCK)
Argued:
Decided:
case
before
us
is
facially
complex
but
in
reality
In the
Packaging,
SupplyONE,
recover
Inc.,
Inc.
what
and
SupplyONE,
Wetmore
Durham
in
Box
turn,
allegedly
Company,
filed
owed
under
Inc.,
to
counterclaims
to
their
purchase
agreement.
The district court granted summary judgment on the majority
of Wetmores claims against SupplyONE but allowed the parties
respective breach of contract claims to proceed to trial.
jury
returned
verdicts
against
both
parties,
The
apportioning
damages accordingly.
We affirm the district courts order of summary judgment,
as
well
as
SupplyONE.
contractual
the
jurys
verdict
and
the
damages
award
to
as
we
can
discern
no
basis
for
that
award.
I.
Wetmore
is
the
owner
and
majority
shareholder
of
Triad
manufacturing
and
supplying
3
cardboard
boxes
used
in
the
company
assets
also
of
engaged
his
in
companies
the
to
SupplyONE,
corrugated
box
national
industry.
These
the
that
due
the
originally thought.
diligence
deal
was
not
period,
as
however,
advantageous
SupplyONE
as
it
had
Section
2.6
provided
for
a
purchase
price
of
$3,094,350.52, payable by (1) a promissory note in the
amount of $100,000, due to mature in October 2013, (2)
$175,000 in an escrow account to cover any postclosing price adjustments, and (3) cash payments.
Section
2.7
provided
three
adjustment on or after closing:
avenues
for
price
Section
6.11
required
both
parties
to
provide
reasonable access to information for the purpose of
concluding the transaction.
the
closing,
price
the
should
parties
be
disputed
adjusted
under
the
amounts
Section
by
2.7.
the
extent
of
any
asset
As a result, Wetmore
deficiency
and
refused
to
of
receivable.
the
unsold
inventory
and
uncollected
accounts
contract,
practices.
asserted
warranty.
(3)
fraud,
SupplyONE
(4)
removed
counterclaims
On
and
multiple
for
unfair
the
breach
motions
case
of
for
and
to
deceptive
federal
contract
summary
and
trade
court
and
breach
of
judgment
by
both
claim
agreement.
that
SupplyONE
breached
their
employment
to
pay
SupplyONE
for
the
asset
deficiency,
the
The
the
jurys
verdicts,
and
entered
judgment
in
the
II.
Wetmore asserts ten issues on appeal, the majority of which
are either duplicative or underdeveloped.
arguments
relevant
to
his
claims
disposed
of
at
summary
Consequently,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (finding that a party
abandons
all
claims
that
do
not
conform
with
the
specific
make any argument in his opening brief with respect to Issue IX-that
the
interest,
issue.
district
costs,
court
and
erred
attorneys
in
denying
his
fees--effectively
motion
waives
for
that
See Hillman v. I.R.S., 263 F.3d 338, 343 n.6 (4th Cir.
we
(1)
identify
Wetmores
two
broad
contention
issues
that
the
warranting
district
court
enrichment,
practices
claims
fraud,
(presented
and
in
unfair
and
Wetmores
deceptive
Issue
I)
trade
and
(2)
Wetmores argument that the court should not have denied his
renewed motions for judgment as a matter of law (presented in
Issues V, VI, VIII, and X).
appeal
the
seeking
reversal
of
award to Wetmore.
jurys
contractual
damages
Because
this
case
comes
to
us
through
our
diversity
Ellis v. Louisiana-
We
2007).
Despite
vociferous
arguments
to
the
contrary,
or
deceptive
trade
practices
in
the
formation
or
Such a claim
Id.
because
the
Asset
Purchase
Agreement
functioned
as
an
First, the
regarding
fees,
confidentiality,
the
letter
is
non-solicitation,
non-binding.
Second,
and
the
understanding
of
the
parties . . . and
supersedes
all
J.A.
10
J.A. 9.
deal,
performance
and
of
(3)
alleged
certain
terms
misrepresentations
in
the
purchase
regarding
its
agreement.
We
agree with the district court that Wetmores fraud claim fails
as a matter of law.
An action for fraud must be predicated on a misstatement
regarding a subsisting or ascertainable fact as opposed to
representations
Kennedy,
209
relating
S.E.2d
494,
to
500
future
(N.C.
conduct.
1974).
Ragsdale
Indeed,
we
v.
have
Strum
v. Exxon Co., 15 F.3d 327, 331 (4th Cir. 1994) (applying North
Carolina law).
Here, SupplyONEs statements regarding the sale price and
closing date in the letter of intent are classic projections,
11
They cannot,
Further, Wetmores
Finally, despite
essence,
Wetmore
is
trying
to
convert
his
breach
of
Appellants
In Strum,
an
accompanying
punitive
dimension
is
inconsistent
both
Strum,
Finally,
North
Wetmore
Carolinas
fails
Unfair
and
to
substantiate
Deceptive
his
Trade
claim
Practices
under
Act
on
allegations
claim:
delay
similar
essentially,
forced
to
those
that
Wetmore
to
Wetmore
SupplyONEs
settle
for
makes
for
his
misrepresentations
a
deal
with
terms
fraud
and
less
We find that
We
S. Atl. Ltd.
PShip of Tenn. v. Riese, 284 F.3d 518, 535 (4th Cir. 2002)
(alteration omitted) (quoting Dalton v. Camp, 548 S.E.2d 704,
711 (2011)).
See id. at
536.
Here, Wetmore argues that SupplyONEs delay in closing was
the fountainhead of the wrong and amounted to an aggravating
circumstance that violated the UDTPA.
normal
deliberations
and
negotiations
(and
the
also
first
devotes
identified
significant
in
his
time
to
post-trial
the
Motion
novel
for
against
Wetmore
for
indemnification--filed
in
the
Western
that
should
motion.
invalidate
However,
the
courts
Wetmore
earlier
provides
no
summary
authority
conclude
that
summary
judgment
on
the
district
Wetmores
court
claims
for
correctly
unjust
granted
enrichment,
his
motion
for
directed
verdict
on
SupplyONEs
concluded
that
SupplyONE
did
not
breach
the
Wetmore also asserts for the first time on appeal that the
jurys verdict on the counterclaim was based on an incorrect
construction of an ambiguous net asset threshold amount in the
agreement. His failure to raise this point of error before the
district court waives our review of the issue.
See United
(Continued)
14
Although
posture,
Wetmore
they
arise
presents
from
these
the
issues
district
in
courts
pre-verdict
denial
of
We review
(4th
Cir.
2009).
conclude
that
the
district
court
access
prior
uncured
SupplyONE
the
to
information.
breach
amounts
According
discharged
he
owed
his
under
to
Wetmore,
obligation
the
price
to
this
pay
adjustment
15
cmt.
discharged
a
if
(1981)
the
(a
other
partys
party
remaining
cures
its
duties
breach
are
in
not
timely
manner).
At trial, there was no dispute that SupplyONE failed to
provide
balance
Wetmore
refused
deficiency.
sheet
to
within
reimburse
60
days
SupplyONE
of
closing,
for
any
or
net
that
asset
under
agreement.
the
price
adjustment
Nevertheless,
provisions
although
the
of
jury
the
found
under
agreement.
the
J.A.
price
2764770.
adjustment
Wetmore
provisions
argues
that
of
the
SupplyONEs
performing,
breached the
and
section
therefore
of
the
the
jurys
agreement
was
finding
that
he
unreasonable.
We
disagree.
First,
preliminary
the
and
record
final
shows
calculations
2009
liabilities
subsequent
show
Wetmore
net
that
an
engaged
effort
to
in
create
spreadsheets
transferred
asset
in
SupplyONE
calculating
at
shortfall.
closing,
the
as
Moreover,
assets
well
as
and
the
correspondence
Date
Balance
Sheet,
the
record
shows
that
Wetmore
transferred.
Consequently,
17
the
jurys
verdict
that
that
efforts
SupplyONE
to
Critically,
collect
the
must
accounts
purchase
best efforts.
it
the
its
obligation
receivable
agreement
to
and
does
use
sell
not
best
inventory.
define
the
term
ultimately
including
breached
best
decide
efforts
what
the
standard
parties
but
intended
that
best
by
efforts
the
jury
heard
of
SupplyONEs
testimony
North
from
Forest
Carolina
Hammer,
subsidiary,
the
that
SupplyONE used its best efforts to resolve the old inventory and
outstanding accounts receivable transferred as part of the sale.
Specifically,
problematic
Hammer
inventory
representatives
and
was
that
obsolete,
managers
reach
purchasing
it.
department
worked . . . diligently
collect
accounts
In
testified
addition,
receivable.
18
the
out
for
much
company
to
employees
J.A.
testified that
although
of
the
had
sales
customers
about
in
the
accounting
days
and
weeks
2160.
Overall,
to
Hammer
[e]verybody
had
looked
into
the
receivables.
Everybody had done a very thorough effort for
collections. Up to this point everybody had tried to
dispose of the inventory in every way which we knew
how.
J.A. 2152.
disagree
SupplyONE
did
not
with
use
Wetmores
the
same
contention
procedures
that
Wetmore
because
used
to
Hammers testimony, in
Consequently,
III.
Finally, SupplyONE argues that the record evidence does not
support the jurys award of $211,363 in contractual damages to
Wetmore.
jurys
damage
award
should
stand
unless
no
false,
or
it
will
result
in
miscarriage
of
justice.
19
Weyerhaeuser Co. v.
Godwin Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977).
The
First,
jurys
the
award
jury
to
awarded
Wetmore
$123,571
included
from
the
two
components.
escrow
account.
the
whose
only
evidence
testimony
regarding
focused
on
three
damages
came
specific
from
requests.
promissory
(including
both
principal
and
interest).
district
court
and
Wetmore
have
identified
Although
number
of
under
the
Although
purchase
it
may
agreement
be
true
with
that
mathematical
SupplyONEs
certainty.
breaches
hindered
award
grappled
with
and
whatever
uncertainty
could
be
based
on
SupplyONEs
breach
of
the
implied
No evidence adduced at
Inc., 105 S.E.2d 428, 431 (N.C. 1958) ([W]here actual pecuniary
damages are sought, there must be evidence of their existence
and extent, and some data from which they may be computed.
(internal quotation marks omitted)).
courts
conclusion
that
SupplyONEs
bad-faith
actions
in
to
recover
rent
could
support
damages
award
is
21
Co.,
229
S.E.2d
297,
301
(N.C.
1976)
(punitive
damages
not
Thus, any contention that the jurys $211,363 award was premised
on this non-existent breach is nonsensical.
Because nothing in the record supports the jurys award of
an additional $211,363 in damages to Wetmore, we conclude that
the award has no reasonable basis.
IV.
For these reasons, we affirm the district courts order of
summary
judgment
and
the
majority
of
the
jurys
verdict,
22