Triad Packaging, Incorporated v. SupplyONE, Incorporated , 597 F. App'x 734 ( 2015 )


Menu:
  •                               UNPUBLISHED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.
    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    Affirmed in part, vacated in part, and remanded by unpublished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    Unpublished opinions are not binding precedent in this circuit.
    2
    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,         Inc.,        and     Durham       Box     Company,      Inc.,        to
    SupplyONE,      Inc.        SupplyONE,          in     turn,    filed       counterclaims         to
    recover       what    Wetmore        allegedly          owed     under       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.                                        The
    jury     returned         verdicts        against       both     parties,          apportioning
    damages accordingly.
    We affirm the district court’s order of summary judgment,
    as     well   as     the    jury’s        verdict       and     the     damages      award        to
    SupplyONE.         However, we vacate the jury’s award to Wetmore for
    “contractual         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        cardboard          boxes        used     in
    3
    commercial packaging and shipping in North Carolina and South
    Carolina.        In late 2007, Wetmore entered into discussions to
    sell   the      assets      of    his    companies       to    SupplyONE,    a    national
    company       also   engaged      in     the    corrugated      box   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        the    due     diligence          period,    however,       SupplyONE
    determined       that      the    deal    was    not    as    advantageous   as    it   had
    originally thought.               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 post-
    closing price adjustments, and (3) cash payments.
    •    Section   2.7   provided   three                  avenues     for    price
    adjustment on or after closing:
    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.
    4
    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       closing,     the    parties      disputed      the   amounts   by
    which   the        price   should       be       adjusted   under     Section   2.7.
    Initially, SupplyONE failed to produce the balance sheet within
    the time-frame provided by the agreement.                   As a result, Wetmore
    disputed     the    extent   of   any    asset       deficiency     and   refused   to
    reimburse SupplyONE for either the alleged deficiency or for the
    value   of     the     unsold     inventory          and    uncollected     accounts
    receivable.        Eventually, SupplyONE instituted claim proceedings
    5
    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,     (3)   fraud,    and    (4)   unfair    and    deceptive      trade
    practices.       SupplyONE   removed      the    case    to   federal   court     and
    asserted    counterclaims      for   breach     of   contract     and   breach    of
    warranty.     On    multiple      motions     for   summary     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.
    6
    inventory, uncollected accounts receivable, and assets related
    to the AP Exhaust client.           In addition, it rejected Wetmore’s
    individual      claim   that    SupplyONE           breached    their   employment
    agreement.       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   disposed   of    at   summary
    2
    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.
    7
    judgment--are supported by bare assertions of error in no more
    than two paragraphs of Wetmore’s opening brief.                               Consequently,
    we do not consider them here.                  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    district         court       erred    in    denying        his   motion       for
    interest,      costs,      and    attorneys          fees--effectively           waives      that
    issue.     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,         we     identify           two        broad     issues        warranting
    discussion:     (1)     Wetmore’s        contention         that     the    district         court
    erroneously granted summary judgment to SupplyONE on Wetmore’s
    unjust     enrichment,       fraud,          and      unfair       and     deceptive      trade
    practices      claims      (presented          in     Wetmore’s      Issue       I)    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   seeking      reversal          of    the     jury’s       “contractual       damages”
    award to Wetmore.
    8
    Because       this   case    comes       to    us   through     our   diversity
    jurisdiction, we apply North Carolina law. 3                     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).                      Such a claim
    3
    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.
    9
    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.                  However, this claim
    fails    because    the    Asset     Purchase       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     regarding          confidentiality,       non-solicitation,        and
    professional       fees,    the    letter      is   non-binding.     Second,      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     all
    prior agreements or understandings among the parties.”                          J.A.
    135.     Finally, Wetmore himself alleged in the complaint that the
    purchase agreement “was a contract entered into by and between
    the Plaintiffs and Defendant SupplyONE.”                 J.A. 9.
    10
    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,   and   (3)   alleged      misrepresentations      regarding     its
    performance   of    certain   terms    in   the   purchase    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     relating     to    future     conduct.       Ragsdale     v.
    Kennedy,   
    209 S.E.2d 494
    ,   500    (N.C.     1974).     Indeed,   we   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,
    11
    exemplified by the letter’s non-binding nature.                         They cannot,
    therefore, form the basis of a fraud claim.                      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     both
    with North Carolina law and sound commercial practice.”                         
    Strum, 15 F.3d at 329
    .         We likewise reject such an attempt here.
    3.
    Finally,    Wetmore    fails      to    substantiate       his   claim    under
    North       Carolina’s    Unfair   and        Deceptive    Trade     Practices      Act
    (“UDTPA”), N.C. Gen. Stat. § 75-1.1 et seq.                     This claim is based
    12
    on   allegations     similar    to    those    Wetmore     makes   for    his     fraud
    claim:    essentially,      that      SupplyONE’s        misrepresentations        and
    delay    forced   Wetmore      to    settle    for   a   deal    with    terms    less
    lucrative than those he had originally agreed to.                       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    also     devotes      significant       time     to     the     novel
    argument,    first       identified     in     his   post-trial         “Motion    for
    Judgment Conforming with the Evidence,” that SupplyONE’s lawsuit
    13
    against    Wetmore     for     indemnification--filed          in     the     Western
    District of Pennsylvania and recently dismissed on grounds of
    res judicata--demonstrates “post-verdict” unfair and deceptive
    actions    that    should     invalidate      the   court’s    earlier        summary
    judgment    motion.          However,     Wetmore     provides       no     authority
    supporting this notion, and as such, we decline to consider it.
    See 
    Edwards, 178 F.3d at 241
    n.6.
    We    conclude    that     the     district    court    correctly        granted
    summary    judgment    on     Wetmore’s    claims    for     unjust       enrichment,
    fraud, and unfair and deceptive trade practices.
    B.
    Wetmore further contends that the district court erred in
    denying    his    motion     for   a    directed     verdict     on       SupplyONE’s
    counterclaim for breach of contract.                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)
    14
    Although       Wetmore    presents     these   issues      in    a   pre-verdict
    posture,      they    arise     from   the      district     court’s       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 non-
    moving 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.           Dotson v. Pfizer, Inc., 
    558 F.3d 284
    ,
    292   (4th    Cir.    2009).      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 post-
    closing      access    to   information.         According       to   Wetmore,      this
    “prior     uncured      breach”    discharged        his     obligation       to    pay
    SupplyONE      the    amounts     he   owed     under      the   price     adjustment
    provisions of the agreement.               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).
    15
    The “general rule” of bilateral contracts is that if either
    party materially breaches a contract, the other party is not
    required to perform further.                Williams v. Habul, 
    724 S.E.2d 104
    ,
    112 (N.C. Ct. App. 2012).                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.             See, e.g., Restatement (Second) of Contracts
    § 242     cmt.    a     (1981)      (a    party’s       remaining      duties       are       not
    discharged       if    the   other       party    cures    its    breach     in    a    timely
    manner).
    At trial, there was no dispute that SupplyONE failed to
    provide    a     balance     sheet       within    60   days     of   closing,      or       that
    Wetmore     refused      to      reimburse        SupplyONE      for    any       net       asset
    deficiency.           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       under       the    price        adjustment      provisions           of    the
    purchase       agreement.           Nevertheless,         although     the    jury          found
    SupplyONE breached this portion of the purchase agreement by not
    providing the balance sheet “within 60 days of closing,” it also
    16
    found Wetmore breached its subsequent obligation to reimburse
    SupplyONE       under      the     price     adjustment           provisions          of    the
    agreement.         J.A.    2764–770.         Wetmore        argues    that      SupplyONE’s
    complete failure to provide him a balance sheet prevented him
    from    performing,        and    therefore       the       jury’s    finding        that     he
    breached the       section        of   the   agreement        was    unreasonable.            We
    disagree.
    First,      the     record       shows     that        SupplyONE        engaged        in
    preliminary      and     final    calculations         in    an    effort     to     create    a
    closing date balance sheet.                  Specifically, internal emails in
    January     2009    show     spreadsheets         calculating           the    assets       and
    liabilities      Wetmore      transferred         at    closing,      as      well    as    the
    subsequent      net       asset    shortfall.               Moreover,       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,         the       jury’s      verdict      that
    17
    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     SupplyONE        breached       its     obligation         to     use     “best
    efforts”    to      collect     accounts     receivable         and       sell     inventory.
    Critically,      the     purchase       agreement       does    not       define    the     term
    “best efforts.”         As a result, the court instructed the jury that
    it   must    “ultimately          decide     what       the     parties          intended     by
    including    the       best     efforts    standard”          but    that    best        efforts
    generally means “diligent attempts to carry out an obligation.”
    J.A. 2335.
    Here,     the      jury    heard     testimony      from       Forest       Hammer,     the
    president      of      SupplyONE’s        North        Carolina          subsidiary,        that
    SupplyONE used its best efforts to resolve the old inventory and
    outstanding accounts receivable transferred as part of the sale.
    Specifically,          Hammer    testified        that     although         much     of     the
    problematic       inventory       was     obsolete,       the        company       had     sales
    representatives         and     managers     reach       out        to    customers        about
    purchasing       it.       In    addition,        employees          in    the     accounting
    department       “worked . . . diligently               for     days       and     weeks”     to
    collect     accounts      receivable.            J.A.     2160.           Overall,        Hammer
    testified that
    18
    [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        with     Wetmore’s          contention    that     because
    SupplyONE     did    not    use     the    same   procedures      Wetmore      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
    19
    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     jury’s     award       to    Wetmore       included     two       components.
    First,      the   jury    awarded         $123,571       from   the   escrow      account.
    Second, the jury awarded $211,363 in unspecified “contractual
    damages.”
    Here,       the    only    evidence         regarding       damages       came   from
    Wetmore,     whose      testimony     focused       on    three   specific        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.          Second, he sought $129,977 owed to him under
    the   promissory        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.                             Although
    the   district      court      and   Wetmore       have    identified       a    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
    under    the     purchase       agreement       “with   mathematical      certainty.”
    Although    it       may   be   true     that    SupplyONE’s       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.                   Consequently, that portion of
    the     award    grappled       with     and     resolved    whatever     uncertainty
    surrounded Wetmore’s damages.                   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        breach   of   the    implied
    covenant of good faith and fair dealing.                    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)).                    In our view, the district
    court’s     conclusion          that     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.
    21
    Co.,   
    229 S.E.2d 297
    ,   301   (N.C.   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