Pleasurecraft Marine v. Thermo Power Corp

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PLEASURECRAFT MARINE ENGINE 
COMPANY,
Plaintiff-Appellant,
and
CAROLINA FIRST BANK,  No. 00-2328
Plaintiff,
v.
THERMO POWER CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-00-126-3-19)
Argued: September 24, 2001
Decided: November 16, 2001
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Widener and Judge Motz joined.
COUNSEL
ARGUED: Wilburn Brewer, Jr., NEXSEN, PRUET, JACOBS &
POLLARD, L.L.C., Columbia, South Carolina, for Appellant. Peter
2 PLEASURECRAFT MARINE ENGINE v. THERMO POWER
L. Murphy, LAW OFFICES OF PETER L. MURPHY, Columbia,
South Carolina, for Appellee. ON BRIEF: Harold W. Jacobs, Rich-
ard S. Dukes, Jr., NEXSEN, PRUET, JACOBS & POLLARD,
L.L.C., Columbia, South Carolina, for Appellant.
OPINION
LUTTIG, Circuit Judge:
Pleasurecraft appeals a district court order granting summary judg-
ment to Thermo on Pleasurecraft’s claims that it was entitled to an
adjustment in purchase price under certain provisions of an asset pur-
chase agreement between the two companies. The district court also
granted summary judgment to Thermo on its counterclaim for pay-
ment of the outstanding balance due under the agreement. We agree,
in relevant part, with the district court’s conclusions, and, accord-
ingly, affirm.
I.
Pleasurecraft Marine Engine Company (Pleasurecraft) entered into
an agreement with Thermo Power Corporation (Thermo) to purchase
assets that Thermo owned in connection with the production of its
lines of marine engines. Upon arrival of the items shipped pursuant
to the agreement, Pleasurecraft verified that each shipping basket con-
tained the number of parts indicated on the accompanying packing
slip, but did not confirm that the part number on the slip corresponded
to the actual part received. Only much later did Pleasurecraft com-
mence this task of confirmation.
Perhaps because neither party to the contract knew precisely what
Thermo had in its warehouse, section 2.4(a) of the agreement pro-
vided a purchase price adjustment mechanism. J.A. 34. Errors in the
quantity of any asset were to be reported to Thermo within 48 hours
of delivery. By contrast, Pleasurecraft had one year from closing to
report errors in "book value."
At closing, Pleasurecraft objected that it never received some items
for which it had been invoiced. As a result, the parties lowered the
PLEASURECRAFT MARINE ENGINE v. THERMO POWER 3
purchase price by almost $300,000 and amended the agreement. Sub-
sequently, Pleasurecraft discovered that Thermo had listed incorrect
part numbers on at least three packing slips. Pleasurecraft claims that
this resulted in a "substantial overstatement of the book value of the
inventory." Appellant’s Br. at 8. Pleasurecraft also asserts that
Thermo charged it for more than $200,000 in unmerchantable inven-
tory.
Unsatisfied with Thermo’s response, Pleasurecraft brought suit in
South Carolina state court, seeking a declaration of the amount owed
under the agreement and an injunction preventing Thermo from draw-
ing down a letter of credit delivered by Pleasurecraft to ensure final
payment to Thermo. Thermo removed to federal court and counter-
claimed for the outstanding balance.
Before the district court, Pleasurecraft argued that Thermo’s
alleged misidentifications resulted in an error in book value of the
inventory, entitling Pleasurecraft to a purchase price adjustment under
section 2.4(a) of the agreement. After finding that Pleasurecraft had
actually received at least one of each disputed asset, J.A. 355, the dis-
trict court held that the claim related only to quantity, and was there-
fore barred because Pleasurecraft did not object within 48 hours of
delivery (of either the goods or the actual invoice). The court also
found that Pleasurecraft had adduced little or no evidence regarding
merchantability but had at most put forth evidence that some of the
merchandise was not marketable. The district court granted summary
judgment to Thermo on all issues and Pleasurecraft appeals.
II.
Pleasurecraft asserts that it is entitled to a purchase price adjust-
ment under section 2.4(a) of the agreement, because Thermo’s misi-
dentification of certain parts delivered to Pleasurecraft resulted in an
"erroneous inflation of the Book Value of the inventory," Appellant’s
Reply Br. at 1 (emphasis added), and hence an inflated purchase
price.
Under Ohio law, which controls interpretation of this agreement,
J.A. 48, the interpretation of an unambiguous contract is for the court.
See Packer, Thomas & Co. v. Eyster, 709 N.E.2d 922, 926 (Ohio Ct.
4 PLEASURECRAFT MARINE ENGINE v. THERMO POWER
App. 1998) (citing Inland Refuse Transfer Co. v. Browning-Ferris
Indus. of Ohio, 474 N.E.2d 271, 272 (Ohio 1984)). We conclude that
while Pleasurecraft’s claim has superficial appeal, the agreement
unambiguously precludes it, though for reasons somewhat more com-
plicated than those given by the district court.
Pleasurecraft’s book value claim relates to three types of assets.
Because the analysis is the same for each, our discussion focuses on
only one type. Pleasurecraft claims to have received a shipment that
the accompanying packing slip identified as containing 646 units of
part number 97876. Upon delivery, Pleasurecraft’s workers verified
that the shipment contained 646 units as claimed on the slip. Only
later did Pleasurecraft discover that part number 97876 corresponds
to an expensive heat exchanger, which Pleasurecraft maintains it
could not have received. Because Pleasurecraft received at least three
such units, the district court held that the dispute involves only quan-
tity, a claim foreclosed by the 48-hour requirement of section
2.4(a)(i).
Pleasurecraft’s claim, however, has a little more staying power.
Pleasurecraft argues that Thermo’s failure to provide adequate and
accurate information with each shipment, as required by section
2.4(c) of the agreement, resulted in mismatches between items and
appropriate book values. And although Pleasurecraft concedes that
the book value for part number 97876 "was stated correctly," J.A.
305, it nonetheless contends that an error in book value resulted from
the alleged fact that Thermo delivered something other than part num-
ber 97876 in a crate labeled with that number. On Pleasurecraft’s
view, the claim cannot possibly be about quantity, since Pleasurecraft
asserts that it did receive 646 units of something (though it has no
idea what), just not 646 of part number 97876.
Clearly such a mixup could — and almost certainly would — result
in an incorrect (and, in this case, an inflated) purchase price. Just as
clearly, such an error need not be characterized as relating to quantity.
But Pleasurecraft asks us to conclude that an error in matching other-
wise correct book values with the wrong parts constitutes an error in
book value under the agreement. This we cannot do.
Section 1.1 of the agreement defines "Book Value":
PLEASURECRAFT MARINE ENGINE v. THERMO POWER 5
"Book Value" of each individual Asset shall mean the lowest
of either:
(a) the value of the Asset as reflected on the books
and records of Seller; or
(b) the purchase price of the Asset paid by Seller,
or the price of the Asset on the purchase order if
lower . . . .
J.A. 28 (emphasis added). That is, book value is defined on an asset-
by-asset basis. An error in book value, then, must be a misstatement
of the value of some particular asset under consideration (e.g., valu-
ing a 10-cent screw at $100). But Pleasurecraft does not allege that
Thermo misstated the value of the heat exchanger. Indeed, this is pre-
cisely the sort of error that Pleasurecraft concedes did not occur. And
because Pleasurecraft admits that it has no idea what parts it received
in lieu of the heat exchangers, it could not possibly produce evidence
that Thermo incorrectly valued those parts.
Pleasurecraft contends, nonetheless, that the district court erred in
granting summary judgment to Thermo on this claim, because
Thermo did not "dispute[ ] the [alleged] misidentification." Appel-
lant’s Br. at 16. But the misidentification, assuming it occurred, can-
not transmute the nature of Pleasurecraft’s claim into one of error in
book value. Pleasurecraft’s repeated references to Thermo’s alleged
misidentifications are simply not material to Pleasurecraft’s book
value claim.
The real problem here, if any, is that Pleasurecraft suffered finan-
cial loss as a result of such misidentifications. Thermo’s mistakes may
constitute a material breach of Thermo’s obligation, set forth in sec-
tion 2.4(c) of the agreement, to include with each shipment an invoice
stating the book value of the delivered assets. And, perhaps
Pleasurecraft could have proceeded under section 9.2(b) of the agree-
ment, which provides for indemnification in such situations. In fact,
Pleasurecraft’s initial state court complaint could be read to support
such a claim. Unfortunately, however, whether or not Pleasurecraft
intended to pursue this theory, it has abandoned it by failing to men-
6 PLEASURECRAFT MARINE ENGINE v. THERMO POWER
tion it in its opening brief. See Edwards v. City of Goldsboro, 178
F.3d 231, 241 n.6 (4th Cir. 1991) (citing Fed. R. App. P. 28(a)(9)(A)).
Pleasurecraft’s claim fails for an additional reason. At closing,
Pleasurecraft raised concerns regarding quantities of several items.
This resulted in a purchase price reduction and an amendment to the
agreement. Section 9 of the amendment states:
The parties hereby agree that the Purchase Price has been
reduced by $296,790 to reflect deductions related to inven-
tory, . . . [and] undelivered baskets . . . . [Pleasurecraft]
agrees that there will be no further adjustments to the Pur-
chase Price or claims for indemnification related to these
items.
J.A. 171 (emphasis added). While "these items" is arguably ambigu-
ous, the parties agree on its meaning. See Appellant’s Br. at 7 ("[The
adjusted] price reflected the book value of all parts alleged by
[Thermo] to have been previously shipped to Pleasurecraft.")
(emphasis added); Appellee’s Br. at 12. The amended agreement
clearly forecloses Pleasurecraft’s claim.
The district court may have erred in concluding that Pleasurecraft’s
claim involves only errors in quantity. But the district court correctly
held that the claim is not for an error in book value within the mean-
ing of the agreement, and we therefore affirm.
III.
Pleasurecraft next argues that the district court erred in granting
summary judgment to Thermo on Pleasurecraft’s claim that many of
the items shipped were unmerchantable. Under section 3.10 of the
agreement, Pleasurecraft had the right to reject such merchandise
within one year of closing. Summary judgment, Pleasurecraft main-
tains, was inappropriate because Thermo "did not present any evi-
dence tending to establish that the [rejected goods] were, in fact,
merchantable." Appellant’s Br. at 17, 22. Pleasurecraft claims to have
presented the court with evidence that some shipped items were not
merchantable. Id. at 22 (referring, it seems, to the testimony of Thur-
PLEASURECRAFT MARINE ENGINE v. THERMO POWER 7
man, president of Pleasurecraft, and of Franks, an employee).
Pleasurecraft asserts that in order to reach its decision, the district
court must have "engaged in an impermissible evaluation of their
credibility." Id.
Pleasurecraft’s argument, however, reveals a fundamental misun-
derstanding of the standard for summary judgment. While the moving
party "bears the initial responsibility of informing the district court of
the basis for its motion," Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), there is no requirement that "the moving party support its
motion with affidavits or other similar materials negating the oppo-
nent’s claim," id. Thermo satisfied its initial burden by pointing to the
pleadings and depositions, "which it believes demonstrate the absence
of a genuine issue of material fact," id.
Rather, Pleasurecraft, the party that would bear the burden of proof
at trial, must satisfy its burden by making "a showing sufficient to
establish the existence of an element essential to [its] case," id. at 322;
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).
It is precisely this that Pleasurecraft has failed to do.
Federal Rule of Civil Procedure 56(e) states:
Supporting and opposing affidavits shall be made on per-
sonal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
(Emphasis added). Pleasurecraft relies on the testimony of Thurman
and Franks, but Thurman (Pleasurecraft’s President) acknowledged
that he had no personal knowledge of how Pleasurecraft’s list of
allegedly unmerchantable goods was generated. Instead, Thurman
relied on Franks. J.A. 291-92.
The district court found Franks’ testimony, J.A. 134, irrelevant to
the issue of merchantability, J.A. 356. At best, the district court con-
cluded, Franks’ testimony establishes that some assets were not mar-
ketable. See, e.g., J.A. 134 (stating that the list of supposedly
unmerchantable goods was generated by identifying "items which had
zero movement").
8 PLEASURECRAFT MARINE ENGINE v. THERMO POWER
Ohio law distinguishes between merchantability and marketability.
The former refers to goods of average quality that are "fit for the ordi-
nary purposes for which such goods are used." Ohio Rev. Code Ann.
§ 1302.27(B) (West 2001). Nothing in the definition implies that such
goods must be marketable, i.e., that there exist willing buyers.
Indeed, at summary judgment, Pleasurecraft flatly admitted that
nothing in Ohio law supports its position. J.A. 345 ("Ohio law does
not make it unmerchantable, Judge."). Skirting the issue, Pleasurecraft
was reduced to the "argument" that while the goods may not be
unmerchantable under Ohio law, "[u]nder normal business practices
you don’t keep obsolete inventory," J.A. 345. Nonetheless, Pleasu-
recraft attempted to sell (and in some cases actually sold) the goods
it now claims are not merchantable. J.A. 356. That is, Pleasurecraft
claims to have placed on the market goods that are not "fit for the
ordinary purposes for which such goods are used."
Furthermore, under section 3.10 of the agreement as amended, J.A.
53, Pleasurecraft must show that the aggregate amount of its book
value claim combined with its unmerchantability claims exceeds
$50,000 in order to be entitled to any recovery at all. Because we
have rejected Pleasurecraft’s book value claim, it must come forward
with evidence tending to show at least $50,000 of charges for unmer-
chantable goods. While the district court suggested that some items
"appeared to have been broken," it also found that the total value of
those items did not reach $50,000. J.A. 356. Pleasurecraft points to
nothing in the record that inclines us to disturb that finding.
Because Thermo warranted only merchantability, J.A. 38, and not
marketability, Pleasurecraft has put forward no relevant evidence. We
therefore affirm the district court’s grant of summary judgment to
Thermo on this claim.
Finally, and by way of housekeeping, we address Pleasurecraft’s
less-than-precise claim that some of the parts it rejected were some-
how outside the scope of the agreement. Its complaint, however,
includes no such allegation, J.A. 16, and it appears that the district
court did not rule on this (though it indicated that it would have
granted summary judgment to Thermo on this claim as well, J.A. 356-
PLEASURECRAFT MARINE ENGINE v. THERMO POWER 9
57). Suffice it to say that at the summary judgment hearing,
Pleasurecraft could not identify any specific items outside the scope
of the agreement but instead stated that "we didn’t come to prove the
summary judgment." J.A. 329. On the assumption that the district
court ruled on it, it did not err in granting summary judgment to
Thermo on this claim.
CONCLUSION
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED