Curtis B. Pearson Music Company v. Everitt

368 F. App'x 450

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 2, 2010
• Docket: 08-1933
• Status: Unpublished

Opinions

Affirmed by unpublished opinion. Judge BLAKE wrote the opinion, in which Judge DUNCAN joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

Unpublished opinions are not binding precedent in this circuit.

BLAKE, District Judge:

Curtis B. Pearson Music Company, Curtis B. Pearson, and Robert C. Pearson (“Appellants” or “the Pearsons”) appeal the district court’s entry of judgment against them on their claims against William S. Everitt for unfair and deceptive trade practices under the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen.Stat. § 75-1.1, and fraud under North Carolina common law. Following a bench trial, the district court found that Mr. Everitt lacked the intent to deceive required to state a claim for fraud. Furthermore, the district court held that Mr. Everitt’s actions did not rise to the level of an unfair or deceptive trade practice prohibited under North Carolina law. For the reasons that follow, we affirm.

I.

The district court found the facts to include the following. Until August 7, 2000, Curtis Pearson served as the President of the Curtis B. Pearson Music Company (“Pearson Music”), which owned and operated retail music stores in North Carolina and South Carolina. Curtis Pearson’s son, Robert Pearson, worked as a full-time employee and manager for Pearson Music. Mr. Everitt is the President of Brook Mays Music Company (“Brook Mays”), a music retail business based in Texas.¹ In mid-2000, Curtis Pearson began negotiations with Mr. Everitt for the sale of Pearson Music to Brook Mays. Curtis Pearson and Mr. Everitt met on June 27, 2000 to discuss the terms of the sale in detail. Vincent McBryde, a Brook Mays business consultant, also attended and took notes of the meeting.

In connection with an asset purchase agreement, the parties discussed an agreement whereby Curtis and Robert Pearson would be paid certain amounts individually. Curtis Pearson would receive $500,000 in five annual $100,000 installments after the sale and Robert Pearson would receive $100,000 in five annual $20,000 installments. The Pearsons and Mr. Everitt now disagree over exactly what consideration was agreed upon at the June 27 meeting in exchange for these five-year payments. The Pearsons claim that they promised not to compete with Brook Mays in consideration of these payments and that Robert Pearson’s payment was also in consideration of the rights to musical instrument websites he had created. Mr. Everitt, however, asserts that the Pear-sons also agreed that these payments would stop upon the termination of their at-will employment with Brook Mays. While Mr. McBryde’s notes from the June 27 meeting are ambiguous on the issue, Mr. McBryde also testified at trial that the payments were contingent on continued employment.

Following the June 27 meeting, Mr. Ev-eritt transmitted Mr. McBryde’s meeting notes to Brook Mays’s attorney, David Earhart, and also left a voice mail, and instructed him to prepare a draft agreement. Neither the July 6, 2000, nor the July 14, 2000, draft agreements sent to Curtis Pearson by Mr. Earhart, however, contained any mention of an employment contingency. Instead, they simply stated that the installment payments would be contingent on the Pearsons not disclosing trade secrets, not competing with Brook Mays for five years after the date of the closing or the cessation of their employment with Brook Mays, and not inducing Brook Mays’s employees to leave the company during the non-compete period. Although Mr. Everitt asked Mr. Earhart to add the continued employment contingency to the July 14 draft, Mr. Earhart failed to do so.

Curtis Pearson reviewed the July 14 draft agreement in detail with an attorney and both Pearsons indicated their approval to Mr. Earhart. At Mr. Everitt’s behest, Mr. Earhart subsequently added the continued employment provision to the contract. Mr. Everitt asserts that he faxed a copy of the amended agreement to the Pearsons on August 4, 2000, but they claim to have never received it. The district court found that Mr. Everitt intended to fax the revised draft to the Pearsons but was not successful in doing so. On August 7, 2000, Mr. Everitt travelled to North Carolina for the closing and presented Curtis Pearson with the amended agreement for signing. Mr. Everitt did not point out the revision because he believed the Pearsons had already received the faxed copy of the amended agreement. Before signing the agreement, Curtis Pearson asked Mr. Everitt, “Is this the contract we agreed to?” J.A. 551. In response, Mr. Everitt answered “yes.” Id. Curtis and Robert Pearson signed the contract without reading it.

Until 2002, the Pearsons continued to work for Brook Mays as at-will employees and received them annual installments, in addition to their regular salaries and sales commissions, pursuant to the contract. In response to Brook Mays managers reducing the scope of the Pearsons’ sales territory, Robert Pearson resigned in 2002. Soon after, Brook Mays informed Curtis Pearson that they also considered him to have resigned. Upon the Pearsons’ departure from Brook Mays, their installment payments ended, leaving an unpaid balance of $400,000 as to Curtis Pearson and $60,000 as to Robert Pearson. Neither of the Pearsons violated the non-compete provisions of the agreement during this time period. On April 22, 2002, the Pear-sons learned of the employment contingency provision in the final version of the contract.

On April 6, 2004, the Pearsons and Pearson Music filed a complaint in state court against Brook Mays and Mr. Everitt, in his individual capacity, alleging (1) breach of contract, (2) fraud and breach of fiduciary duty, and (3) unfair and deceptive trade practices. The defendants removed the case to the U.S. District Court for the Middle District of North Carolina on April 29, 2004. As Brook Mays filed for bankruptcy after the case was removed to federal court, the district court dismissed all claims and counterclaims involving Brook Mays without prejudice. Given that Mr. Everitt did not sign the purchase contract in his individual capacity, the district court found the breach of contract claim not applicable to him. Instead, the district court held a bench trial in January 2007 on the (1) fraud or breach of fiduciary duty and (2) unfair and deceptive trade practices claims against Mr. Everitt personally. The Pearsons now appeal the district court’s denial of their claims against Mr. Everitt.²

II.

We review a district court’s determination of legal questions de novo. See South Atlantic Ltd. v. Riese, 284 F.3d 518, 535 (4th Cir.2002). We may set aside a district court’s factual findings following a bench trial only if they are clearly erroneous. See Ellis v. Grant Thornton LLP, 530 F.3d 280, 286 (4th Cir.2008); Fed.R.Civ.P. 52(a). “A finding of fact is clearly erroneous when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Ellis, 530 F.3d at 287 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). In addition, if “there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

As the court has diversity jurisdiction over this case, it must interpret the law in accordance with the highest court in North Carolina. See Wells v. Biddy, 186 F.3d 505, 527-28 (4th Cir.1999). Where the law is unclear, the court must predict how the Supreme Court of North Carolina would rule, considering: “canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state’s highest court, well considered dicta, and the state’s trial court decisions.” Id. at 528.

III.

We turn first to Appellants’ argument that the district court erred in dismissing their fraud claim. Under North Carolina law, a plaintiff must prove that the defendant had the “intent to deceive” in order to prevail on a claim for fraud. See Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 374 S.E.2d 385, 391-92 (1988). Appellants first argue that the district court ignored its own factual findings by concluding that Mr. Everitt lacked the requisite intent to deceive. They note the district court’s finding that Mr. Everitt made “false representations to Plaintiffs regarding the content of the agreement” by replying “yes” when Curtis Pearson asked him if the contract he was about to sign was the one to which they had previously agreed. J.A. 554-55. Yet the district court also found that Mr. Ever-itt intended to give Curtis Pearson an honest answer to his question about the contract, finding that Mr. Everitt believed that the parties had discussed the employment contingency provision at the June 27 meeting and that the Pearsons had seen the faxed copy of the revised agreement. Id. at 555. The district court’s characterization of Mr. Everitt’s statement to Curtis Pearson as factually untrue does not negate its overall finding that Mr. Everitt made an honest mistake. Thus the district court’s factual findings support its legal conclusion that Mr. Everitt lacked the intent to deceive necessary to prove fraud.³

In the alternative, Appellants argue that the district court’s factual findings as to Mr. Everitt’s intent are clearly erroneous. They note that the year and a half that passed between the bench trial and the district court’s decision may have clouded the court’s recollections from the trial. Given the ambiguity in the notes from the June 27 meeting, the testimony of Mr. McBryde supporting Mr. Everitt’s recollection of what was discussed June 27, and Mr. Everitt’s testimony that Mr. Earhart failed to add the employment provision to the July 14 draft as he had requested and that he believed the Pearsons were aware of the employment contingency provision, however, the district court’s finding that Mr. Everitt unintentionally misled the Pearsons is a permissible interpretation of the evidence.⁴

The Pearsons’ allegations in their subsequent complaint against Mr. Earhart and his law firm further support the district court's findings of fact. In this complaint, the Pearsons allege that “Everitt believed that the Pearsons had already agreed to the termination contingency provisions which he had instructed his attorney, Earhart, to include for review.” (Appellants’ Second Compl. ¶ 14.) They also assert that Mr. Everitt did not provide copies of the final agreement to the Pearsons “because he believed the Pearsons had reviewed and approved the agreement.” Id. at ¶ 15. Generally, a party is bound by admissions in its pleadings. See Lucas v. Burnley, 879 F.2d 1240, 1242 (4th Cir.1989). Although this later pleading was filed in a different lawsuit, Pearson v. Gardere Wynne Sewell LLP, its allegations relate to the same events at issue in this case. Thus Appellants’ admissions in this subsequent pleading relating to Mr. Everitt’s good faith, whether or not binding in this case, at least support our conclusion that the district court did not clearly err in finding that Mr. Everitt made an honest mistake rather than an intentional misrepresentation. Finding that the Pear-sons have not sustained their burden of showing clear error in the district court’s factual determinations, we conclude that the district court did not err in denying their claim for fraud.

IV.

Appellants also contend that the district court erred in holding that Mr. Everitt had not engaged in unfair or deceptive trade practices under the UDTPA.⁵ We have earlier noted that “[w]hat constitutes an unfair or deceptive trade practice is a somewhat nebulous concept.” Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895, 902 (4th Cir.1996). Unfairness and deception have been identified as distinct bases for liability under the UDTPA. See id. at 903; Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610, 621 (1980), abrogated on other grounds by Myers, 374 S.E.2d at 391-92. For a trade practice to be deceptive, it need not be untruthful, it simply must have the “capacity or tendency to deceive.” Johnson, 266 S.E.2d at 622. Furthermore, an actor’s good faith has been described as irrelevant to the question of whether his conduct was deceptive. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397, 403 (1981). A practice is “unfair” under the UDTPA, however, “when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Id.

Given that the UDTPA provides for treble damages, courts have been reluctant to classify every instance of wrongdoing in business transactions as a violation of the UDTPA. To prevail on an UDTPA claim, plaintiffs must demonstrate “some type of egregious or aggravating circumstances.” Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704, 711 (2001) (italics in original) (internal quotations and alterations omitted); see also South Atlantic, 284 F.3d at 535 (describing the “egregious or aggravating circumstances” requirement as a limit on the UDTPA’s application); Hancock v. Renshaw, 421 B.R. 738, 744 (M.D.N.C.2009) (holding that a defendant’s willful conversion did not constitute an unfair or deceptive trade practice in and of itself under the UDTPA; there needed to be sufficient egregious or aggravating factors in addition). Moreover, North Carolina courts look largely to the practice’s impact on the marketplace in determining whether conduct is deceptive or unfair. See Marshall, 276 S.E.2d at 403 (noting that “[w]hether a trade practice is unfair or deceptive usually depends on the facts of each case and the impact the practice has in the marketplace”); Carcano v. JBSS, LLC, 684 5.E.2d 41, 50 (N.C.Ct.App.2009) (explaining that “[t]he ‘relevant gauge’ of an act’s unfairness or deception is ‘[t]he effect of the actor’s conduct on the marketplace’ ”) (quoting Ken-Mar Finance v. Harvey, 90 N.C.App. 362, 368 S.E.2d 646, 648 (1988)).

In Carcano, the court refused to conclude that the defendants’ recruitment of the plaintiffs into a fictional limited liability company, which involved “deception, lies, and misrepresentations,” was an unfair or deceptive trade practice. Carcano, 684 S.E.2d at 50-51 (internal quotation marks omitted). The court based its decision primarily on the fact that the conduct simply involved a request to invest in a business arrangement among “sophisticated business entrepreneurs.” Id. at 50. As the court noted, the UDTPA “does not apply to all wrongs in a business setting.” Id.6

The Pearsons have not demonstrated any egregious or aggravating factors at work in this case. Instead, based on the district court’s findings, Mr. Everitt is guilty only of a mistaken belief with regard to a specific transaction, having little impact on the general marketplace. Misunderstandings, despite their capacity to deceive, ordinarily are insufficient to sustain a claim of deceptive conduct under the UDTPA. See Rice v. Vitalink Pharmacy Servs., Inc., 124 F.Supp.2d 343, 348 (W.D.N.C.2000) (concluding that “a mutual misunderstanding between the parties” did not give rise to a claim for deceptive trade practices); Cockman v. White, 76 N.C.App. 387, 333 S.E.2d 54, 55 (1985) (holding that “[w]e do not believe the misunderstanding between plaintiff and defendant constituted a deceptive representation”).⁷

Appellants argue, however, that Mr. Ev-eritt’s failure to disclose the addition of the employment contingency provision to the Pearsons was so unscrupulous as to qualify as an unfair trade practice under the UDTPA. In support of this proposition, they cite South Atlantic, in which this court found that the defendant’s failure to disclose pertinent information was “the essence of unscrupulous behavior” and “sufficiently egregious to constitute an unfair trade practice.” 284 F.3d at 538. Yet this characterization was based on a finding that the defendant “deliberately luithheld the information” from the claimant. Id. (italics in original). As Mr. Everitt was not found to have acted deliberately in this case, his conduct does not rise to the level of unscrupulousness observed in South Atlantic. Accordingly, the district court properly ruled in favor of Mr. Everitt on the Pearsons’ UDTPA claim.

V.

For the foregoing reasons, we conclude that the district court did not err in ruling against the appellants on their fraud and UDTPA claims. Accordingly, the judgment of the district court is

AFFIRMED.

1 . Brook Mays acquired McFadyen Music, Inc. in May 2000. Mr. Everitt continued as President of Brook Mays, the successor company. The district court dismissed claims against McFadyen Music, Inc. due to this acquisition and merger.

2 . In addition to appealing the district court's judgment, the Pearsons initiated a separate cause of action against Mr. Earhart and his law firm, claiming that they defrauded the Pearsons in drafting the contract at issue in this case. See Pearson v. Gardere Wynne Sewell LLP, No. 08-0919-JAB (M.D.N.C.). We granted Mr. Everitt's motion to take judicial notice of the complaint in that case (hereinafter "Appellants' Second Compl.”).

3 . The district court also held that the Pear-sons had failed to establish a claim for "constructive fraud,” or breach of fiduciary duty, which the Pearsons have not challenged on appeal. Based on the court's findings that the Pearsons were "experienced businesspeo-pie,” that Mr. Everitt was not in a "confidential, advisory, or otherwise close relationship with them,” and that the parties engaged in an arms-lenglh business transaction, the court properly denied the Pearsons' constructive fraud claim. J.A. 557-58.

4 . As Mr. Everitt points out in his brief, Curtis Pearson’s recollection of events at trial was not always reliable. (Appellee's Br. 4.) Although Curtis Pearson denied during his deposition that the $500,000 payment was discussed at all during the June 27 meeting, he testified at trial that the payment was indeed discussed at the meeting. See J.A. 151, 154.

5 . "In order to establish a violation of the [UDTPA], a plaintiff must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs." Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676, 681 (2000). The latter two elements are not at issue on appeal as the district court based its ruling solely on its conclusion that the conduct at issue did not constitute an unfair or deceptive act.

6 . Contrary to the dissent's assertion, Carcano was not a "situation in which a third-party sabotages the business dealings of a plaintiff and a defendant.” Dissent.Op. at n. 3. Rather, as in this case, Carcano concerned the aftermath of a defendant's mistaken belief about a business transaction. Although the defendants in Carcano also suffered as a result of this misconception, this does not alter the court’s analysis as to the level of egregiousness required under the UDTPA and the importance of a trade practice’s effect on the marketplace. 684 S.E.2d at 50.

7 . The dissent, in elaborating its theory of "objective” egregiousness, relies heavily on Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 343 S.E.2d 174 (1986). We note that Pearce involved a suit by a widow against an insurance company for failure to pay on a policy. A separate statute governs unfair or deceptive trade practices in the insurance industry under North Carolina law, including misrepresentations about policy terms. See N.C. Gen.Stat. § 58-54.4. In Pearce the court held "that a violation of [N.C. Gen.Stat.] § 58-54.4 as a matter of law constitutes an unfair or deceptive trade practice in violation of [N.C. Gen.Stat.] § 75-1.1.” 343 S.E.2d at 179. Thus we believe Pearce is distinguishable from the present circumstances.