Triad Packaging, Incorporated v. SupplyONE, Incorporated

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:10-cv-00005-RLV-DCK. Copies to all parties and the district court/agency. [999516019]. [13-2321, 13-2362]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2321

TRIAD PACKAGING, INCORPORATED; LOUIS WETMORE,
Plaintiffs – Appellants,
v.
SUPPLYONE, INCORPORATED,
Defendant – Appellee,
and
DAVIDSON, HOLLAND & WHITESELL & CO., PLLC,
Respondent,
v.
DURHAM BOX COMPANY, INCORPORATED,
Third Party Defendant – Appellant.

No. 13-2362

TRIAD PACKAGING, INCORPORATED; LOUIS WETMORE,
Plaintiffs – Appellees,
v.
SUPPLYONE, INCORPORATED,
Defendant – Appellant,
v.

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DURHAM BOX COMPANY, INCORPORATED,
Third Party Defendant – Appellee.

Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:10−cv−00005−RLV−DCK)

Argued:

October 30, 2014

Decided:

January 23, 2015

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
opinion.
Judge Diaz wrote the opinion, in which Judge Duncan
and Judge Keenan joined.

ARGUED: Matthew Kyle Rogers, Hickory, North Carolina, for
Appellants/Cross-Appellees.
John Scott Kingston, THOMPSON
COBURN LLP, St. Louis, Missouri, for Appellee/Cross-Appellant.
ON BRIEF: Mark W. Kinghorn, MCGUIREWOODS LLP, Charlotte, North
Carolina, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Circuit Judge:
The

case

before

us

is

facially

complex

but

in

reality

involves a straightforward breach of contract action.

In the

district court, Louis Wetmore sought to recover damages from a
bad deal, in which he sold the assets of his two companies,
Triad

Packaging,

SupplyONE,
recover

Inc.,

Inc.

what

and

SupplyONE,

Wetmore

Durham
in

Box

turn,

allegedly

Company,

owed

under

to

counterclaims

filed

Inc.,

to

their

purchase

agreement.
The district court granted summary judgment on the majority
of Wetmore’s 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 court’s order of summary judgment,
as

well

as

SupplyONE.
“contractual

the

jury’s

verdict

and

the

damages

award

to

However, we vacate the jury’s award to Wetmore for
damages,”

as

we

can

discern

no

basis

for

that

award.

I.
Wetmore

is

the

owner

and

majority

shareholder

of

Triad

Packaging and Durham Box Company, two companies formerly engaged
in

manufacturing

and

supplying
3

cardboard

boxes

used

in

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commercial packaging and shipping in North Carolina and South
Carolina.
sell

the

In late 2007, Wetmore entered into discussions to

company

assets

also

of

engaged

his
in

companies
the

to

SupplyONE,

corrugated

box

a

national

industry.

These

discussions were memorialized by a letter of intent, signed in
April 2008, which contemplated closing in July of that year.
The letter also proposed a purchase price of $3.5 million.
During
determined

the
that

due
the

originally thought.

diligence
deal

was

not

period,
as

however,

advantageous

SupplyONE
as

it

had

It therefore obtained Wetmore’s agreement

to extend the deadline for closing and recommenced negotiations,
resulting in an adjusted purchase price of just over $3 million.
The deal finally closed in October 2008 with the signing of an
Asset Purchase Agreement.
The agreement contained the following relevant provisions:
•

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

1. If, after preparing a “Closing Date Balance Sheet,”
it was discovered that the assets delivered to
SupplyONE fell below the minimum amount provided by
the agreement ($727,000), Wetmore would be required
to make up the difference.
The agreement required
SupplyONE to provide the balance sheet to Wetmore
within 60 days of closing.

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2. Any unsold or obsolete inventory and uncollected
accounts receivable remaining 180 days after closing
would be returned to Wetmore, who would reimburse
SupplyONE for their value.
3. The value of inventory and accounts receivable
attributable to one particular client (“AP Exhaust”)
would not be included in the assets transferred, and
their value would be deducted from the purchase
price.
•

Section 2.8 provided for allocations of the purchase
price
among
the
purchased
assets
and
required
SupplyONE to prepare the appropriate IRS form within
90 days of closing.

•

Section 6.10 required SupplyONE to use its best
efforts to sell inventory and to collect accounts
receivable it assumed as part of the sale.

•

Section
6.11
required
both
parties
to
provide
reasonable access to information for the purpose of
concluding the transaction.

In addition, as part of the sale, Wetmore and SupplyONE entered
into an employment agreement, under which Wetmore would remain
with the company for several years in a sales capacity.
Following
which

the

closing,

price

the

should

parties
be

disputed

adjusted

under

the

amounts

Section

by

2.7.

Initially, SupplyONE failed to produce the balance sheet within
the time-frame provided by the agreement.
disputed

the

extent

of

any

asset

As a result, Wetmore

deficiency

and

refused

to

reimburse SupplyONE for either the alleged deficiency or for the
value

of

receivable.

the

unsold

inventory

and

uncollected

accounts

Eventually, SupplyONE instituted claim proceedings

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under the escrow agreement to recover the amounts it alleged it
was owed.
In response, Wetmore filed suit in North Carolina state
court, alleging four claims: (1) unjust enrichment, (2) breach
of

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

parties, the district court dismissed Wetmore’s first, third,
and fourth claims but allowed the parties’ remaining claims to
proceed to trial. 1
After a seven-day trial, the jury returned verdicts for
both Wetmore and SupplyONE.

Specifically, the jury found that

SupplyONE breached the agreement in four ways: (1) it did not
produce the balance sheet within 60 days of closing, (2) it did
not provide the allocation of purchase price IRS form within 90
days of closing, (3) it did not provide Wetmore post-closing
access to information, and (4) it breached its implied covenant
of good faith and fair dealing.

However, the jury rejected

Wetmore’s claims that SupplyONE breached the purchase agreement
by failing to correctly adjust the purchase price for unsold
1

However, because SupplyONE voluntarily dismissed its
breach of warranty claim during trial, only its breach of
contract claim was submitted to the jury.

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inventory, uncollected accounts receivable, and assets related
to the AP Exhaust client.
individual

claim

agreement.

that

In addition, it rejected Wetmore’s

SupplyONE

breached

their

employment

The jury awarded Wetmore $211,363 in “contractual

damages,” in addition to $123,571 from the escrow account.
The jury also found that Wetmore breached the agreement by
failing

to

pay

SupplyONE

for

the

asset

deficiency,

the

uncollected accounts receivable, and the unsold inventory.

The

jury awarded SupplyONE $332,605 in damages to satisfy the price
adjustment provisions of the agreement.
The district court denied the parties’ post-trial motions,
affirmed

the

jury’s

verdicts,

and

entered

judgment

in

the

amounts awarded at trial. 2

II.
Wetmore asserts ten issues on appeal, the majority of which
are either duplicative or underdeveloped.

For example, Issues

II, III, IV, and VII--all essentially challenging the district
court’s refusal to allow Wetmore to introduce at trial evidence
and

arguments

relevant

to

his

claims

2

disposed

of

at

summary

In addition, the district court ordered SupplyONE to pay
the outstanding promissory note owed to Wetmore, resulting in a
total award to Wetmore of $464,911. The court also ordered that
the remainder of the escrow account be distributed to SupplyONE,
for a $384,034 total award to SupplyONE.

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judgment--are supported by bare assertions of error in no more
than two paragraphs of Wetmore’s opening brief.
we do not consider them here.

Consequently,

See Edwards v. City of Goldsboro,

178 F.3d 231, 241 n.6 (4th Cir. 1999) (finding that a party
abandons

all

claims

that

do

not

conform

with

the

“specific

dictates” of Federal Rule of Appellate Procedure 28, which, in
pertinent part, mandates “citations to the authorities . . . on
which the appellant relies”).

Further, Wetmore’s failure to

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.

2001) (citing Edwards, 178 F.3d at 241 n.6).
However,
discussion:

we

(1)

identify

Wetmore’s

two

broad

contention

issues

that

the

warranting

district

court

erroneously granted summary judgment to SupplyONE on Wetmore’s
unjust

enrichment,

practices

claims

fraud,

(presented

and
in

unfair

and

Wetmore’s

deceptive

Issue

I)

trade

and

(2)

Wetmore’s 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).

We also address SupplyONE’s cross-

appeal

the

seeking

reversal

of

award to Wetmore.

8

jury’s

“contractual

damages”

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Because

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this

case

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comes

to

us

through

jurisdiction, we apply North Carolina law. 3

our

diversity

Ellis v. Louisiana-

Pacific Corp., 699 F.3d 778, 782 (4th Cir. 2012).
A.
Wetmore contends that the district court improperly granted
summary judgment to SupplyONE on Wetmore’s claims for unjust
enrichment, fraud, and unfair and deceptive trade practices.

We

review the district court’s grant of summary judgment de novo.
Long v. Dunlop Sports Grp. Ams., Inc., 506 F.3d 299, 301 (4th
Cir.

2007).

Despite

vociferous

arguments

to

the

contrary,

Wetmore cannot make out a prima facie case of unjust enrichment,
nor can he point to evidence in the record amounting to fraud or
unfair

or

deceptive

trade

practices

in

the

formation

or

performance of the purchase agreement.
1.
The equitable claim of unjust enrichment provides relief
where one party confers a benefit on the other party but the
injured party cannot make out a claim for breach of contract.
Booe v. Shadrick, 369 S.E.2d 554, 556 (N.C. 1988).
3

Such a claim

Although the purchase agreement provides that Delaware law
governs any dispute, both parties and the district court have
applied North Carolina law throughout the course of this
proceeding.
See Triad Packaging, Inc. v. SupplyONE, Inc., 925
F. Supp. 2d 774, 786 (W.D.N.C. 2013).
Because the parties do
not contest the application of North Carolina law, we do not
address the issue further.

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is often referred to as one in quasi-contract or a contract
implied in law.

Id.

Critically, however, for a claim in quasi-

contract to sound, no express contract must exist: “If there is
a contract between the parties the contract governs the claim
and the law will not imply a contract.”

Id.; see also Whitfield

v. Gilchrist, 497 S.E.2d 412, 415 (N.C. 1998).
Wetmore contends that SupplyONE’s actions inconsistent with
the parties’ letter of intent--failure to close by July 2008,
and failure to pay the original purchase price of $3.5 million-resulted in SupplyONE’s unjust enrichment.
fails

because

the

Asset

Purchase

However, this claim

Agreement

functioned

as

an

express contract governing the parties’ entire arrangement.
The following facts support this conclusion.

First, the

letter of intent expressly states that, with the exception of
provisions
professional

regarding
fees,

confidentiality,

the

letter

is

non-solicitation,

non-binding.

Second,

and
the

letter was followed by the purchase agreement, which includes an
integration clause providing that the agreement “sets forth the
entire

understanding

of

the

parties . . . and

supersedes

prior agreements or understandings among the parties.”
135.

all
J.A.

Finally, Wetmore himself alleged in the complaint that the

purchase agreement “was a contract entered into by and between
the Plaintiffs and Defendant SupplyONE.”

10

J.A. 9.

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As both parties, at least in the initial pleadings, agreed
on the existence of a contract--the Asset Purchase Agreement-that contract governs.

We therefore conclude that the district

court correctly granted summary judgment on Wetmore’s claim of
unjust enrichment.
2.
Wetmore’s fraud claim is based on SupplyONE’s (1) alleged
misrepresentations in the letter of intent (the $3.5 million
purchase price and the earlier closing date), (2) failure to
immediately disclose its misgivings about the original terms of
the

deal,

performance

and
of

(3)

alleged

certain

terms

misrepresentations
in

the

purchase

regarding

its

agreement.

We

agree with the district court that Wetmore’s 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

instructed that “[t]he mere failure to carry out a promise in
contract . . . does not support a tort action for fraud.”

Strum

v. Exxon Co., 15 F.3d 327, 331 (4th Cir. 1994) (applying North
Carolina law).
Here, SupplyONE’s statements regarding the sale price and
closing date in the letter of intent are classic projections,
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exemplified by the letter’s non-binding nature.
therefore, form the basis of a fraud claim.

They cannot,

Further, Wetmore’s

claimed reliance on the letter’s closing date--or on SupplyONE’s
alleged failure to disclose its eventual desire to renegotiate
the deal--is expressly negated by the fact that he later signed
an agreement to extend the closing deadline.

Finally, despite

his contentions that SupplyONE never intended to follow through
on its representations in the letter of intent, Wetmore has been
unable to adduce any evidence to that effect.
In

essence,

Wetmore

is

trying

to

convert

his

breach

of

contract claim to a tort claim by arguing that SupplyONE did not
follow through on material terms in the agreement.

Appellant’s

Br. at 38 (asserting that SupplyONE “committed fraud relating to
general performance of the [purchase agreement]”).

In Strum,

where a plaintiff similarly tried to “shoehorn [his] case into a
tort framework,” we cautioned against this approach, concluding
that an “attempt to turn a contract dispute into a tort action
with

an

accompanying

punitive

dimension

is

inconsistent

with North Carolina law and sound commercial practice.”
15 F.3d at 329.

both

Strum,

We likewise reject such an attempt here.
3.

Finally,
North

Wetmore

Carolina’s

fails

Unfair

and

to

substantiate
Deceptive

(“UDTPA”), N.C. Gen. Stat. § 75-1.1 et seq.
12

his

Trade

claim

Practices

under
Act

This claim is based

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on

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allegations

claim:
delay

similar

essentially,
forced

to

those

that

Wetmore

to

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Wetmore

SupplyONE’s
settle

for

makes

for

his

misrepresentations
a

deal

with

lucrative than those he had originally agreed to.

terms

fraud
and
less

We find that

Wetmore cannot show SupplyONE violated the UDTPA.
The UDTPA prohibits “unfair or deceptive acts or practices
in or affecting commerce.”

N.C. Gen. Stat. § 75-1.1(a).

We

have held that only practices involving “some type of egregious
or aggravating circumstances” violate the UDTPA.

S. Atl. Ltd.

P’Ship 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)).

Moreover, we have emphasized that garden-variety

breaches of contract “rarely” violate the statute.

See id. at

536.
Here, Wetmore argues that SupplyONE’s delay in closing was
the fountainhead of the wrong and amounted to an aggravating
circumstance that violated the UDTPA.

He cannot, however, show

any actions by SupplyONE that constitute egregious circumstances
beyond

normal

deliberations

and

negotiations

(and

the

corresponding adjustments in terms) that accompany a transaction
of this nature.
Wetmore
argument,

also

first

devotes
identified

significant
in

his

time

to

post-trial

the
“Motion

novel
for

Judgment Conforming with the Evidence,” that SupplyONE’s lawsuit
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against

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Wetmore

for

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indemnification--filed

in

the

Western

District of Pennsylvania and recently dismissed on grounds of
res judicata--demonstrates “post-verdict” unfair and deceptive
actions
judgment

that

should

motion.

invalidate
However,

the

court’s

Wetmore

earlier

provides

no

summary

authority

supporting this notion, and as such, we decline to consider it.
See Edwards, 178 F.3d at 241 n.6.
We

conclude

that

summary

judgment

on

the

district

Wetmore’s

court

claims

for

correctly
unjust

granted

enrichment,

fraud, and unfair and deceptive trade practices.
B.
Wetmore further contends that the district court erred in
denying

his

motion

for

a

directed

counterclaim for breach of contract.

verdict

on

SupplyONE’s

According to Wetmore, the

verdict against him on the counterclaim was erroneous because
SupplyONE’s “prior uncured breach” discharged his obligation to
pay amounts owed to SupplyONE under the agreement, and the jury
erroneously

concluded

that

SupplyONE

did

not

breach

the

provision of the agreement requiring “best efforts” to collect
accounts receivable and sell inventory. 4

4

Wetmore also asserts for the first time on appeal that the
jury’s 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)
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Although
posture,

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Wetmore

they

arise

presents
from

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these

the

issues

district

in

a

court’s

pre-verdict
denial

of

Wetmore’s post-verdict, renewed motion for judgment as a matter
of law under Federal Rule of Civil Procedure 50(b).

We review

the denial of a motion for judgment as a matter of law de novo,
viewing the evidence in the light most favorable to the nonmoving party.

See Konkel v. Bob Evans Farms, Inc., 165 F.3d

275, 279 (4th Cir. 1999).

We may not disturb a verdict where

sufficient evidence could support a reasonable jury’s finding in
favor of the non-movant.
292

(4th

Cir.

2009).

Dotson v. Pfizer, Inc., 558 F.3d 284,
We

conclude

that

the

district

court

properly denied Wetmore’s motion.
1.
Wetmore first urges that SupplyONE never cured its failures
to provide a closing date balance sheet and to provide him postclosing

access

“prior

uncured

SupplyONE

the

to

information.

breach”
amounts

According

discharged
he

provisions of the agreement.

owed

his

under

to

Wetmore,

obligation
the

price

to

this
pay

adjustment

We think the evidence supports a

conclusion that SupplyONE eventually remedied its failure, and
therefore Wetmore was not relieved of his obligation.

States ex rel. Bunk v. Gosselin World Wide Moving, N.V., 741
F.3d 390, 405 (4th Cir. 2013).

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The “general rule” of bilateral contracts is that if either
party materially breaches a contract, the other party is not
required to perform further.
112 (N.C. Ct. App. 2012).

Williams v. Habul, 724 S.E.2d 104,

In addition, “[i]t is a salutary rule

of law that one who prevents the performance of a condition, or
makes it impossible by his own act, will not be permitted to
take advantage of the nonperformance.”

Mullen v. Sawyer, 178

S.E.2d 425, 431 (N.C. 1971) (quoting Harwood v. Shoe, 53 S.E.
616, 616 (N.C. 1906)).

However, such a failure will discharge

the other party’s performance only so long as the deficiency
remains uncured.
§ 242

cmt.

discharged

a
if

See, e.g., Restatement (Second) of Contracts

(1981)
the

(a

other

party’s
party

remaining

cures

its

duties

breach

are

in

a

not

timely

manner).
At trial, there was no dispute that SupplyONE failed to
provide

a

balance

Wetmore

refused

deficiency.

sheet

to

within

reimburse

60

days

SupplyONE

of

closing,

for

any

or

net

that
asset

Moreover, the district court instructed the jury

that SupplyONE’s breach of its obligation to supply the balance
sheet could operate to excuse Wetmore’s failure to fulfill his
obligations
purchase

under

agreement.

the

price

adjustment

Nevertheless,

provisions

although

the

of

jury

the
found

SupplyONE breached this portion of the purchase agreement by not
providing the balance sheet “within 60 days of closing,” it also
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found Wetmore breached its subsequent obligation to reimburse
SupplyONE

under

agreement.

the

J.A.

price

2764–770.

adjustment
Wetmore

provisions

argues

that

of

the

SupplyONE’s

complete failure to provide him a balance sheet prevented him
from

performing,

breached the

and

section

therefore
of

the

the

jury’s

agreement

was

finding

that

he

unreasonable.

We

disagree.
First,
preliminary

the
and

record
final

shows

calculations

closing date balance sheet.
January

2009

liabilities
subsequent

show

Wetmore
net

that

an

engaged

effort

to

in

create

a

Specifically, internal emails in

spreadsheets
transferred

asset

in

SupplyONE

calculating
at

shortfall.

closing,

the
as

Moreover,

assets
well

as

and
the

correspondence

between Wetmore and SupplyONE in May and June 2009--in which
Wetmore disputed SupplyONE’s claims of a net asset deficiency-suggests that Wetmore received accounting information, at the
very latest, during an April 2009 meeting between Wetmore and
SupplyONE representatives.
Although Wetmore may not have received a document titled
“Closing

Date

Balance

Sheet,”

the

record

shows

that

Wetmore

received post-closing balance sheet information, which allowed
him to commence discussions on the proper valuation of the net
assets

transferred.

Consequently,

17

the

jury’s

verdict

that

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Wetmore breached his obligation by refusing to pay any net asset
deficiency is supported by substantial evidence.
2.
Wetmore further argues that the district court erred in
denying him judgment as a matter of law with respect to his
claim

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

As a result, the court instructed the jury that

“ultimately

including

breached

best

decide
efforts

what

the

standard”

parties
but

intended

that

best

by

efforts

generally means “diligent attempts to carry out an obligation.”
J.A. 2335.
Here,

jury

of

president

the

heard

SupplyONE’s

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

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[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.

Indeed, Hammer noted that SupplyONE made an “all

American” and “extraordinary effort” to recover these assets.
J.A. 2159–60.
We

disagree

SupplyONE

did

not

with
use

Wetmore’s
the

same

contention
procedures

that

Wetmore

because
used

to

collect old accounts or to move unsold or obsolete inventory,
SupplyONE did not use its best efforts.

Hammer’s testimony, in

particular, demonstrates SupplyONE’s diligence.

Consequently,

the jury was entitled to rely on this testimony to conclude that
SupplyONE met its best efforts obligation.

III.
Finally, SupplyONE argues that the record evidence does not
support the jury’s award of $211,363 in “contractual damages” to
Wetmore.

A

jury’s

damage

award

should

stand

unless

“no

substantial evidence is presented to support it, it is against
the clear weight of the evidence, it is based upon evidence that
is

false,

or

it

will

result

in

a

miscarriage

of

justice.”

Barber v. Whirlpool Corp., 34 F.3d 1268, 1279 (4th Cir. 1994).
However, a jury may not award damages where the evidence allows

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no more than speculation as to the amount.

Weyerhaeuser Co. v.

Godwin Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977).
The
First,

jury’s
the

award

jury

to

awarded

Wetmore
$123,571

included
from

the

two

components.

escrow

account.

Second, the jury awarded $211,363 in unspecified “contractual
damages.”
Here,
Wetmore,

the

whose

only

evidence

testimony

regarding

focused

on

three

damages

came

specific

from

requests.

First, conceding that he owed SupplyONE a net asset deficiency
of $51,429, Wetmore sought $123,571 of the funds held in the
escrow account.
the

promissory

Second, he sought $129,977 owed to him under
note

(including

both

principal

and

interest).

Finally, he sought $480,000 in damages relating to SupplyONE’s
alleged breach of the employment agreement.

These were the only

damages requested by Wetmore’s attorney in his closing argument.
This testimony clearly supports the jury’s award of the
escrow monies to Wetmore.

However, we can find no evidence

supporting the remaining $211,363 of the jury’s award.
the

district

court

and

Wetmore

have

identified

a

Although
number

of

potential bases for the award, we find none of them persuasive.
Initially, we do not accept the district court’s conclusion
and Wetmore’s contention that the $211,363 award was reasonable
because SupplyONE’s breaches “frustrated” Wetmore from “proving
up actual damages” and prevented calculation of the amounts owed
20

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under

the

Although

Filed: 01/23/2015

purchase

it

may

Pg: 21 of 22

agreement

be

true

“with

that

mathematical

SupplyONE’s

certainty.”

breaches

hindered

calculation of the purchase price adjustments, Wetmore testified
that he was owed an exact sum from the escrow account--$123,571-and the jury awarded that sum.
the

award

grappled

with

and

surrounded Wetmore’s damages.

Consequently, that portion of
resolved

whatever

uncertainty

The deficiency in the remaining

$211,363 of the award lies not in its lack of certainty but in
its lack of evidentiary foundation.
Further, we reject the district court’s reasoning that the
damages

could

be

based

on

SupplyONE’s

covenant of good faith and fair dealing.

breach

of

the

implied

No evidence adduced at

trial showed concrete damages stemming from SupplyONE’s breach
of that covenant.

See Thrower v. Coble Dairy Prods. Coop.,

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)).
court’s

conclusion

that

In our view, the district

SupplyONE’s

bad-faith

actions

in

refusing to use a third-party accountant, failing to mediate, or
attempting

to

recover

rent

could

support

a

damages

award

is

based more on a punitive theory of tortious injury than actual
contractual damages.

See, e.g., Newton v. Standard Fire Ins.

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Appeal: 13-2321

Co.,

Doc: 37

229

S.E.2d

Filed: 01/23/2015

297,

301

(N.C.

Pg: 22 of 22

1976)

(punitive

damages

not

allowed for breach of contract).
Finally, we find meritless Wetmore’s speculation that the
jury intended to compensate him for breach of the employment
agreement.

The jury’s verdict expressly rejected this claim.

Thus, any contention that the jury’s $211,363 award was premised
on this non-existent breach is nonsensical.
Because nothing in the record supports the jury’s 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 court’s order of
summary

judgment

and

the

majority

of

the

jury’s

verdict,

vacating only the award of “contractual damages,” to Wetmore.
We remand the case to the district court for entry of judgment
accordingly.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

22