                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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
