Carpet Super Mart, Inc. v. Benchmark International Co. ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1416
CARPET SUPER MART, INC., a North Carolina Corporation; ARTHUR C.
JORDAN, JR.; JOYCE J. MOBLEY,
Plaintiffs - Appellants,
v.
BENCHMARK INTERNATIONAL COMPANY SALES SPECIALIST, LLC, a
Florida Limited Liability Company; DARA SHAREEF, an individual; BRIAN
LOCKLEY, an individual,
Defendants - Appellees.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:18-cv-00398-WO-JEP)
Submitted: December 6, 2019 Decided: January 8, 2020
Before WILKINSON, FLOYD, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott K. Tippett, HAGAN BARRETT, PLLC, Greensboro, North Carolina, for Appellants.
Scott M. Tyler, MOORE & VAN ALLEN PLLC, Charlotte, North Carolina; Jason H.
Baruch, Anthony J. Palermo, HOLLAND & KNIGHT LLP, Tampa, Florida, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carpet Super Mart, Inc., through its owners Arthur C. Jordan, Jr., and Joyce J.
Mobley (collectively, “CSM”), entered into an agreement with Benchmark International
Company Sales Specialist, LLC (“Benchmark”), to facilitate the sale of CSM’s assets to a
third party in exchange for “5% of the Transaction Value.” (J.A. 1 197). But once CSM’s
assets sold, the parties were unable to agree as to the proper calculation of Benchmark’s
fee. Specifically, although the contract indicated that the Transaction Value was equivalent
to the total benefit that CSM received, CSM maintained that, in oral communications,
Benchmark misled CSM into believing that Benchmark’s consideration was limited to 5%
of the purchase price. As a result, CSM commenced the instant action against Benchmark,
seeking a judgment declaring the agreement unenforceable and asserting claims of fraud
and unfair and deceptive trade practices. The district court granted Benchmark’s motion
to dismiss, concluding that Benchmark’s alleged misstatements could not alter or amend
the clear language of the contract. For the reasons that follow, we affirm.
We review a district court’s dismissal under Fed. R. Civ. P. 12(b)(6) de novo,
“assuming as true the complaint’s factual allegations and construing all reasonable
inferences in favor of the plaintiff.” Semenova v. Md. Transit Admin., 845 F.3d 564, 567
(4th Cir. 2017) (internal quotation marks omitted). To survive a motion to dismiss, a
complaint must contain sufficient facts to state a claim that is plausible on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
1
Citations to “J.A.” refer to the joint appendix filed by the parties in this appeal.
2
CSM first contends that the Transaction Value provision was too vague to be
enforceable. While this claim echoes the amended complaint’s allegation that “[t]here was
no meeting of the minds regarding the amount, manner, and method of the calculation and
computation of the commission” (J.A. 183), CSM failed to present this argument in its
opposition to Benchmark’s motion to dismiss, instead focusing on its claim that the
agreement was ambiguous. For this reason, we decline to consider CSM’s vagueness
challenge on appeal. See Cox v. SNAP, Inc., 859 F.3d 304, 308 n.2 (4th Cir. 2017).
Next, CSM contends that Benchmark fraudulently induced CSM’s assent by orally
misrepresenting the terms of the contract and failing to provide a copy of Benchmark’s
standard terms and conditions—which included the Transaction Value provision at issue—
that the agreement incorporated by reference. 2 However, under the applicable state law, a
party who signs a contract without reading it is bound by its terms unless the other party
makes “a false representation of fact materially affecting the value of the contract and
which is peculiarly within the knowledge of the person making it and in respect to which
the other person in the exercise of proper vigilance has not an equal opportunity of
ascertaining the truth.” Davis v. Davis, 124 S.E.2d 130, 133 (N.C. 1962). Here, far from
being peculiarly within Benchmark’s knowledge, the existence of the standard terms was
readily apparent from the face of the agreement; thus, it was incumbent upon CSM to seek
2
In the district court, CSM disputed whether Benchmark had properly incorporated
its standard terms into the parties’ agreement. But because CSM makes only a passing
reference to this claim in the argument section of its opening brief, we conclude that CSM
has abandoned this challenge on appeal. See Fed. R. App. P. 28(a)(8)(A); Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562, 568 n.7 (4th Cir. 2015).
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out the standard terms to which it was agreeing. See id. (“Where ordinary care and
prudence are sufficient for full protection [from fraudulent misrepresentations], it is the
duty of the party to make use of them.” (internal quotation marks omitted)). By choosing
to accept Benchmark’s representations without asking to review the standard conditions,
CSM was bound by the terms it neglected to discover. Consequently, any cause of action
for fraud necessarily failed. Furthermore, insofar as Benchmark’s alleged
misrepresentations conflicted with the terms of the agreement, CSM’s reliance on
Benchmark’s verbal assurances was unreasonable, thus defeating the claim for unfair and
deceptive trade practices. See Bumpers v. Cmty. Bank of N. Va., 747 S.E.2d 220, 227 (N.C.
2013).
Finally, CSM asserts that, even if the agreement was enforceable, it was ambiguous.
“An ambiguity exists in a contract when either the meaning of words or the effect of
provisions is uncertain or capable of several reasonable interpretations.” Schenkel &
Shultz, Inc. v. Hermon F. Fox & Assocs., P.C., 658 S.E.2d 918, 921 (N.C. 2008) (internal
quotation marks omitted). Here, the Transaction Value provision clearly identified the
metric for measuring Benchmark’s fee—i.e., the total benefit received by CSM—then
indicated how Benchmark might determine the total benefit. While complaining that the
provision left unresolved how exactly Benchmark would calculate its fee, CSM fails to
explain how it was susceptible to multiple reasonable interpretations. Thus, we reject
CSM’s claim that the parties’ agreement was ambiguous.
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Accordingly, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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