First Union Commercial v. GATX Capital Corp

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FIRST UNION COMMERCIAL 
CORPORATION; AMERICAN EXPRESS
BANK, LIMITED,
Plaintiffs-Appellees,
and
FIRST SECURITY LEASING COMPANY,
Plaintiff,  No. 02-1823
v.
GATX CAPITAL CORPORATION,
formerly known as GATX Leasing
Corporation,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-99-152-H)
Argued: April 3, 2003
Decided: June 16, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Niemeyer and Judge Gregory concurred.
COUNSEL
ARGUED: George Joseph Frost, HOSIE, FROST, LARGE &
MCCARTHUR, San Francisco, California, for Appellant. Charles
2 FIRST UNION COMMERCIAL v. GATX CAPITAL CORP.
Evans Johnson, ROBINSON, BRADSHAW & HINSON, P.A., Char-
lotte, North Carolina; Bruce G. Paulsen, SEWARD & KISSEL,
L.L.P., New York, New York, for Appellees. ON BRIEF: G. Kirk-
land Hardymon, RAYBURN, COOPER & DURHAM, P.A., Char-
lotte, North Carolina, for Appellant. Michele S. Kayne, SEWARD &
KISSEL, L.L.P., New York, New York, for Appellees.
OPINION
WIDENER, Circuit Judge:
I.
This case involves a contractual dispute between plaintiffs, First
Union Commercial Corporation (First Union) and American Express
Bank (AMEX), and defendant, GATX Capital Corporation (GATX),
regarding the sale of an oil tanker, the SS Charles Pigott (Pigott). The
parties filed various claims in tort and contract against each other in
the Western District of North Carolina. The parties consented to trial
before a magistrate judge under 28 U.S.C. § 636(c), and the case was
assigned to Chief United States Magistrate Judge Carl Horn. After a
one-week trial, the jury returned a verdict in favor of GATX and
against plaintiffs. The jury awarded damages of $69,711.47 against
First Union and $160.338.28 against American Express. The defen-
dant appeals the order of the trial court denying its motion to enlarge
the damage award. Defendant also challenges the trial court’s denial
of its motion for prejudgment interest against First Union. For the rea-
sons stated below, we affirm the judgment of the trial court.
II.
Plaintiffs First Union* and AMEX were two of five equity owners
*The original equity owners and their respective ownership shares
were AMEX (29.4875%), First Security (25.641%), Banc One
(12.8205%), PNC (19.2305%), and Union Trust (12.8205%). On
November 29, 1997, plaintiff First Union succeeded Union Trust in its
interest in the trust.
FIRST UNION COMMERCIAL v. GATX CAPITAL CORP. 3
(collectively equity owners) of a trust which possessed as its sole
asset the Pigott. Defendant GATX is the successor-in-interest of ITEL
Leasing Company (ITEL). In 1972, the equity owners and Western
Transnav Company (Transnav) entered into a 25-year bareboat char-
ter agreement for Transnav to lease the Pigott. ITEL organized the
charter agreement, and each of the five equity owners entered into let-
ter agreements with ITEL detailing the method for compensating
ITEL for its services. The letter agreements provided for each equity
owner to make an initial payment to ITEL at the time of the charter
agreement between Transnav and the equity owners. The letter agree-
ments also provided that when the Pigott was sold or rechartered,
ITEL would act as remarketing agent for the Pigott and would receive
a subsequent fee based on the consideration for the resale or recharter
of the Pigott. Disagreements regarding ITEL’s subsequent remarket-
ing duties and the compensation owed by the equity owners to ITEL’s
successor-in-interest, GATX, are the subject of this litigation.
Plaintiffs assert that because the original charter agreement expired
on December 31, 1998, and because failure to recharter or dispose of
the Pigott would have caused the equity owners to incur substantial
storage and maintenance fees, the equity owners were eager to sell the
vessel before December 1998. Between January and March 1998,
Chevron Shipping Company (Chevron), an affiliate of Transnav,
offered to purchase the equity owners’ interest in the Pigott trust.
Chevron made individual offers to First Union, AMEX, First Secur-
ity, and Banc One equivalent to a total purchase price of $4.8 million
for the vessel. Sometime between February and April of 1998,
GATX, as the successor to ITEL, contacted the equity owners and
asserted its right to act as sole remarketing agent for the sale of the
Pigott. GATX, through remarketing representative Reid Scheidt
(Scheidt), asserted that Chevron’s initial offer was "drastically below
the current market for the ship" and that the value of the Pigott was
closer to a range of between $8 and $14 million.
Disputes between the parties followed. Plaintiffs maintain that
GATX failed to provide any meaningful remarketing assistance and
also interfered with Chevron’s initial offer in its attempt to secure its
remarketing fees. GATX contested plaintiffs’ accusations and coun-
tered that plaintiffs interfered and sought to exclude GATX from
negotiations to avoid paying remarketing fees.
4 FIRST UNION COMMERCIAL v. GATX CAPITAL CORP.
Evidence was presented that the equity owners initially sought to
exclude GATX from the remarketing process to avoid paying remar-
keting fees to GATX. While the parties disagree at to when the equity
owners agreed to recognize GATX as the Pigott’s remarketing agent,
plaintiffs signed documents officially authorizing GATX to act on
their behalf in remarketing the Pigott in September 1998.
On September 9, 1998, Scheidt wrote the equity owners a letter
indicating that GATX was willing and able to perform its remarketing
duties and that it was seeking to reach a "consensus on the direction
of the remarketing" from the equity owners. He reasserted the right
of GATX to act as sole remarketing agent and stated, "no matter what
the outcome of the remarketing of the Vessels under the Agreements,
or the extent, if any, of the services rendered by GATX in connection
with that remarketing, GATX is entitled to receive its portion of the
residual proceeds as provided under the Agreements."
On September 10, 1998, James Peters, on behalf of equity owner
First Security Leasing, responded to Scheidt’s letter, stating that "[i]n
reading through your letter, the focus appears to be more on the fee
than in what GATX can bring to the table that can benefit the equity
owners." The letter continued stating, that First Security Leasing was
"relying heavily upon the experience and expertise of GATX in deter-
mining the current tanker market value and obtaining additional
offers," noting that the equity owners had not "received offers other
than the ones that came from Chevron directly" which Chevron had
withdrawn because it was "reluctant to do business or negotiate with
GATX." Peters requested that GATX perform under the contract by
soliciting a higher offer from Chevron, obtaining other offers to pur-
chase the Pigott, or offering to purchase the Pigott itself.
Other than an uncommunicated offer by Chevron to purchase the
Pigott for $4 million on October 12, 1998, GATX secured no viable
offers to purchase the Pigott. Plaintiffs maintain that during a Novem-
ber 10, 1998, conference call between Scheidt and the equity owners,
the equity owners voiced concern over Chevron’s expired offer and
the absence of other potential buyers. During the call, Scheidt offered
to step away from his remarketing activities and allow the equity
owners to try to sell the Pigott on their own.
FIRST UNION COMMERCIAL v. GATX CAPITAL CORP. 5
Thereafter, GATX discontinued its remarketing activities, and
AMEX’s Miss Elizabeth Haraym contacted Chevron on behalf of the
equity owners to restart negotiations for purchase of the Pigott. On
December 29, 1998, the equity owners sold their interest in the Pigott
to Chevron for $4.35 million—some $450,000 less than the initial
amount offered by Chevron. By invoices dated January 12, 1999,
GATX requested payment of $641,353 from AMEX and $278,845
from First Union, an amount equivalent to one half of the gross pro-
ceeds received by the plaintiffs from Pigott’s sale.
On April 29, 1999, plaintiffs filed this lawsuit in federal court
requesting declaratory judgment that they owed nothing to GATX and
asserting claims for damages in contract and tort. Plaintiffs contended
that GATX failed to perform its contractual remarketing duties in
good faith and that GATX was not owed additional compensation
because the final sale price did not exceed the formula provided in the
letter agreements. First Union and AMEX requested damages of
$63,308 and $317,293, respectively.
On November 29, 1999, GATX filed its answer denying liability
and filed counterclaims alleging breach of contract and breach of cov-
enant of good faith and fair dealing. GATX asserted that plaintiffs
prevented GATX from acting as the Pigott’s remarketing agent to
avoid paying remarketing fees. GATX maintained that under the letter
agreements, it was entitled to fifty percent of the gross proceeds
received by AMEX and First Union from the sale of the Pigott.
With the exception of plaintiffs’ unfair and deceptive trade practice
claim which was denied at the close of plaintiffs’ evidence, all the
parties’ claims were submitted to a jury after a one-week trial. After
two hours’ deliberation, the jury asked the court, "If we decide to
award damages, can we award any amount between one dollar and the
amount requested by the damaged parties?" After consultation with
counsel for all parties, the trial court returned with the agreed answer
of "yes."
On plaintiffs’ claims of breach of contract, breach of fiduciary
duty, and negligent misrepresentation against GATX, the jury
returned its verdict in favor of GATX. On GATX’s counterclaims of
breach of contract and bad faith against plaintiffs, the jury returned
6 FIRST UNION COMMERCIAL v. GATX CAPITAL CORP.
a verdict finding plaintiffs liable. However, the jury’s damage award
to GATX of $160,338.28 against American Express and $69,711.47
against First Union was some seventy-five percent lower than the
amount claimed by GATX under the letter agreements.
Pursuant to Rule 50(b), GATX moved to enlarge the damage award
to the amount GATX claimed it was owed in the invoices. The trial
court denied GATX’s motion stating that the jury’s verdict and its
award of damages was reasonable.
In addition, GATX requested that the court award both postjudg-
ment and prejudgment interest against both plaintiffs. The court
agreed that postjudgment interest was proper and entered an appropri-
ate order. With regard to prejudgment interest, the trial court deter-
mined that the claims against AMEX were controlled by New York
law which required the award of prejudgment interest on the judg-
ment against AMEX. However, because the claims against First
Union were governed by Maryland law, prejudgment interest was not
mandatory, and the trial court exercised its discretion and declined to
award prejudgment interest against First Union.
GATX now appeals, urging that the trial court erred in not increas-
ing the damage award and not awarding prejudgment interest.
III.
GATX contends that the trial court erred in denying its Rule 50(b)
motion for judgment notwithstanding the verdict. The denial of a Rule
50(b) is reviewed de novo. Konkel v. Bob Evans Farms, 165 F.3d 275,
279 (4th Cir. 1999). "If, viewing the facts in the light most favorable
to the non-moving party, there is sufficient evidence for a reasonable
jury to have found in [the non-moving party’s] favor, we are con-
strained to affirm the jury verdict." Lack v. Wal-Mart Stores, 240 F.3d
255, 259 (4th Cir. 2001). On such appellate review we determine if
a reasonable jury could have found the verdict. We do not weigh evi-
dence nor judge the credibility of witnesses. See Trimed, Inc. v. Sher-
wood Med. Co., 977 F.2d 885, 888 (4th Cir. 1992).
We review a party’s challenge to the adequacy of a damage award
using the same general principles applied when a party challenges a
FIRST UNION COMMERCIAL v. GATX CAPITAL CORP. 7
damage award as excessive. Great Coastal Exp. v. Int’l Broth. of
Teamsters, Chauffeurs, Warehousemen and Helpers, 511 F.2d 839,
846 (4th Cir. 1975); De Foe v. Duhl, 286 F.2d 205, 207 (4th Cir.
1961). Where, as here, a party seeks to preserve the jury’s liability
determination in its favor while challenging the jury’s damage award
as inadequate, we are reminded that "[t]he assessment of damages is
entrusted to the jury, and is not subject to review unless unconsciona-
ble or motivated by extreme prejudice." Compton v. Wyle Labs., 674
F.2d 206, 209 (4th Cir. 1982); see also Barber v. Whirlpool Corp., 34
F.3d 1268, 1279 (4th Cir. 1994). The court will uphold a damage
award "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, 34 F.3d
at 1279.
GATX contends that because the jury found in its favor on all
claims, the evidence supports only a damage award equal to or greater
than the invoiced amounts under the letter agreements. We disagree.
The award returned by the jury was consistent with the supplemental
jury instruction given to the jury with the agreement of counsel. As
noted, during deliberations, the jury asked the court "If we decide to
award damages, can we award any amount between one dollar and the
amount requested by the damaged parties?" Not knowing at that
moment whether the jury had decided either the winner or the amount
of any damages, counsel for GATX and both plaintiffs answered
"yes," and the jury was so instructed, without qualification, that it
could award any amount of damages between the described range.
Rule 51 of the Federal Rules of Civil Procedure provides: "No
party may assign as error the giving or the failure to give an instruc-
tion unless that party objects thereto before the jury retires to consider
its verdict. . . ." Fed. R. Civ. Proc. 51 (2003)(amended 2003). By
agreeing to an instruction which specifically authorized the verdict
returned by the jury, GATX waived its right to argue on appeal that
the jury was required to award a greater amount.
To the extent that GATX contends that the law of the case required
the jury to award a specific damage amount when it found in GATX’s
favor, the argument represents an "indirect attack[ ] on the [supple-
8 FIRST UNION COMMERCIAL v. GATX CAPITAL CORP.
mental] damage instructions given to the jury" which will not be
entertained. See Bogan v. Stroud, 958 F.2d 180, 184 (7th Cir. 1992).
Moreover, our review of the record persuades us that ample evi-
dence supports the jury’s damage award. In this case, the jury found
plaintiffs materially breached the parties’ contract. While GATX cor-
rectly asserts that the jury found that it did not materially breach the
parties’ letter agreements, GATX incorrectly assumes that this finding
denotes that the jury also found that it performed all its duties fully
and adequately under the letter agreements. The court instructed the
jury that a party damaged by another party’s breach
has a duty under the law to use reasonable diligence under
the circumstances to mitigate or minimize damages. The law
imposes on an injured person the duty to take advantage of
reasonable opportunities it may have to prevent the aggrega-
tion of his injuries so as to reduce or minimize loss or dam-
age.
The court continued by instructing that the prevailing party could not
"recover for any item of damage he could have avoided through such
reasonable efforts."
While the jury agreed with GATX’s assertion that plaintiffs materi-
ally breached the letter agreements, the jury’s verdict is also consis-
tent with a finding that for a considerable time before the Pigott’s
sale, plaintiffs agreed to allow GATX to act as the Pigott’s remarket-
ing agent and that GATX failed to use this opportunity to mitigate its
damages. Rather than soliciting offers to purchase the Pigott at levels
consistent with GATX’s representation of the Pigott’s true market
value, GATX pursued a remarketing strategy that ultimately led to
plaintiffs receiving almost half a million dollars less than the amount
Chevron originally offered, and almost $10 million less than GATX’s
highest market value estimation.
The jury was also presented with substantial evidence that after the
plaintiffs authorized GATX to act as their remarketing agent,
GATX’s contributions to the sale of the Pigott were minimal and
even hampered the equity owner’s remarketing efforts. Viewed in the
light most favorable to plaintiffs, GATX’s valuation of the Pigott at
FIRST UNION COMMERCIAL v. GATX CAPITAL CORP. 9
between $8 and $14 million was overinflated, souring the negotiating
atmosphere and causing Chevron to withdraw its offer to purchase the
Pigott. GATX also failed to produce any competitive offers to pur-
chase the Pigott. In fact, GATX’s only offer to purchase the Pigott
came from Chevron in October 1998 which GATX allowed to expire
before communicating it to the equity owners. Finally, GATX stepped
away from its remarketing duties in November 1998 forcing the
equity owners to negotiate with Chevron on their own and to sell the
Pigott for less than Chevron’s initial offer. Viewing this evidence in
the light most favorable to the plaintiffs, the jury could have reason-
ably determined that GATX’s failed to mitigate damages by com-
pletely and capably assuming its remarketing duties even after
plaintiffs formally accepted GATX as their remarketing agent, and
that the failure to mitigate resulted in lower damages to GATX, war-
ranting a damage award less than that claimed by GATX.
We are thus of opinion and hold that the verdict of the jury was
supported by substantial evidence; that it was neither unconscionable
nor motivated by extreme prejudice, Compton, 674 F.2d at 209; and
that it was not against the clear weight of the evidence or based upon
evidence that was false or resulted in a miscarriage of justice, Barber,
34 F.3d at 1279.
IV.
Finally, GATX argues that the trial court abused its discretion in
declining to award prejudgment interest to GATX on the damage
award against First Union. Maryland law, which governs the award
of prejudgment interest against First Union, vests discretion to the
trial court in awarding prejudgment interest. I.W. Berman Props. v.
Porter Bros., 344 A.2d 65, 76 (Md. 1975). Where, as here, the liabil-
ity issues were fiercely contested by the parties and the damages
owed to GATX were not certain prior to the judgment, we are of
opinion that the district court did not abuse its discretion in declining
to award prejudgment interest.
The judgment of the district court is accordingly
AFFIRMED.