                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-1183


DEXTER EDWARDS, d/b/a Edwards Land & Cattle,

                     Plaintiff - Appellant,

              and

NICHOLAS EDWARDS, d/b/a Edwards Land & Cattle,

                     Plaintiff,

              v.

GENEX COOPERATIVE, INC.,

                     Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (7:16-cv-00053-BO)


Argued: March 21, 2019                                            Decided: June 13, 2019


Before WYNN, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Kennedy Lee Thompson, Eugene Cebron Thompson, III, THOMPSON &
THOMPSON, P.C., Warsaw, North Carolina, for Appellant. J. Matthew Little,
TEAGUE, CAMPBELL, DENNIS & GORHAM, LLP, Raleigh, North Carolina, for
Appellee. ON BRIEF: Rebecca R. Thornton, TEAGUE, CAMPBELL, DENNIS &
GORHAM, LLP, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Dexter Edwards (“Appellant”) filed suit against Genex Cooperative, Inc.

(“Genex”) alleging a single claim for breach of contract. Appellant appeals the district

court’s (1) award of summary judgment to Genex; (2) denial of Appellant’s motion for

judgment on the pleadings or, in the alternative, summary judgment; and (3) denial of

Appellant’s motions to amend the complaint to add an additional claim for violation of

the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”). Appellant

asserts that there is only an oral contract between the parties, and that the written

contracts -- which Genex asserts govern the parties’ relationship -- are invalid for a

number of reasons.

       We conclude that, regardless of whether Appellant’s breach of contract claim is

predicated upon a written or oral contract, the claim fails as a matter of law. Further, we

conclude that the district court did not abuse its discretion in denying Appellant’s request

to amend his complaint, because such amendment would have been futile. Accordingly,

we affirm.




                                             3
                                              I.

                                             A.

                                      Factual History

       Appellant operates Edwards Land and Cattle, a business “engaged in the genetic

reproduction of cattle [that] specializes in ‘pure-bred genetics.’” J.A. 66. 1 Appellant’s

son, Nicholas Edwards (“Edwards”), manages the farm in North Carolina where the cattle

are reproduced.

       The genetic reproduction of cattle requires Appellant to collect “genetically elite

semen from prize bulls and genetically elite embryos from prize cows. Subsequently, the

semen and embryos are matched to produce ‘super elite’ offspring.”               J.A. 66–67.

Appellant stores and preserves these biological products on his farm in seven metal tanks

filled with liquid nitrogen. 2 The liquid nitrogen freezes these products thus allowing

Appellant to “preserve elite semen and embryos from deceased sires and dams[3] and

consequently, to produce ‘super elite’ animals.”        Id.   But, because liquid nitrogen

vaporizes over time, the tanks must be refilled on a regular basis so that the tanks do not



       1
           Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
       2
        Nitrogen, in its liquid state, is used to quickly freeze or store materials because of
its low temperature (-320°F). Liquid nitrogen has numerous applications, such as
cryogenics, molecular gastronomy, and -- as in this case -- the freezing of bovine
biological products.
       3
       “Sire” refers to a male bull (an uncastrated male cow) and “dam” to a female
cow. See J.A. 383.


                                              4
become dry. If the tanks were to become dry, the biologic products stored inside would

thaw and spoil.

                                              1.

                                      The Agreements

       Genex supplied Appellant with liquid nitrogen for over 15 years. During the first

few years of the business relationship, the parties did business without a written

agreement. But, in 2004, Genex and Edwards entered into several Liquid Nitrogen

Service Agreements (the “Agreements”) for the supply and delivery of liquid nitrogen for

Appellant’s tanks. Appellant did not review the Agreements himself but instead left the

Agreements for Edwards to handle on behalf of Edwards Land and Cattle. Notably,

Appellant acknowledged that, although Edwards signed the Agreements, Edwards likely

did not review the Agreements before signing.

       The Agreements provide that Genex would regularly provide liquid nitrogen

services to Appellant.       Genex refilled Appellant’s tanks with liquid nitrogen

approximately every 12 weeks, although Appellant could request an earlier refill if

necessary. Significantly, the Agreements expressly state that the “[Appellant] accepts

full and sole responsibility to . . . monitor [the liquid nitrogen] level routinely.” J.A. 60.

And, the Agreements also contain a clause stating that Genex “will not accept

responsibility or liability for embryos or any other frozen biologic products stored in

customer’s tank(s) that are filled with [liquid nitrogen] by its employees.” Id. (the

“limitation of damages clause”). The Agreements were to “remain in effect unless

terminated in writing by 60 days[’] notice from either party.” Id.

                                              5
                                              2.

                                  Monitoring of the Tanks

       In 2013, nine years after the Agreements were signed, Genex’s territory sales

manager and technician, Corey Peters, began placing neon green stickers on Appellant’s

tanks. The stickers reiterated Appellant’s responsibility to monitor the liquid nitrogen

levels in the tanks. Specifically, the stickers provided:

              DISCLAIMER: Owner/user is responsible for monitoring
              nitrogen level, making sure [liquid nitrogen] unit is filled
              regularly and kept in good working order. If tank is found to
              be low in [liquid nitrogen], owner/user must immediately call
              a[] [liquid nitrogen] provider for refill.

              No Genex Cooperative, Inc. Representative has authority to
              relieve user of this responsibility.

J.A. 407. At his deposition, in response to a question by Genex’s counsel, Edwards

testified that he did not attempt to read the disclaimer sticker. See id. at 142 (“Q: Have

you ever read or tried to understand what that disclaimer said? A: No, ma’am . . . .”).

       Appellant’s seven tanks were stored on rubber mats (to prevent damage to the

tanks from the concrete floor) in Edwards’s unlocked office on the farm. Appellant

testified that he and Edwards monitored the tanks in three ways: first, by visually

inspecting the tanks; second, by lifting the tanks to gauge the weight; and third, by

inserting a black ruler (essentially, a dipstick) into the tanks to check the actual liquid

nitrogen levels.

       But, according to Appellant and Edwards, neither Appellant nor Edwards regularly

checked the levels in the tanks outside of breeding season. Edwards testified, “when


                                              6
we’re not breeding cows I’m not monitoring [the tanks] a lot . . . it’s just one of those

deals that I’m not in and out of [the tanks] checking them.” J.A. 139. Edwards further

testified that outside of breeding season, he would “see [the tanks] everyday as far as

walking through and seeing they’re there; but as far as checking the nitrogen, I wasn’t

checking it.” Id. at 140.

       Thus, during the non-breeding season -- from June to October -- Appellant and

Edwards simply visually inspected the tanks as they passed through the office. Such an

inspection, however, would only allow an observer to detect signs of tank failure -- for

example, a puncture in the tank leading to a loss of vacuum might result in visible

condensation on the tank or on the rubber mats on which the tanks were kept. 4 Merely

looking at the tanks does not indicate the actual level of liquid nitrogen in the tanks.

       In contrast, during breeding season, Appellant or Edwards would actually measure

the level of liquid nitrogen in the tanks with a dipstick a “couple times a month.” J.A.

140. Appellant and Edwards also routinely lifted the tanks to check the weight of each

tank -- an empty tank weighed approximately 30 pounds, while a full tank (freshly

refilled) weighed roughly 80 pounds. If Appellant or Edwards discovered that a tank felt

light, they “would stick [a] measuring tool down to see the frost line” and if the line was

getting low, they would call Peters to assure that the next delivery would be occurring on

       4
         According to Appellant’s expert, Mark Wilburn, tank failure would be caused by
loss of vacuum. This loss of vacuum would cause the tanks to “sweat” as the coolant
(liquid nitrogen) escaped and the biologic product within defrosted. The tanks would not
“sweat” if the liquid nitrogen simply evaporated -- rather, the liquid nitrogen would “just
dissipate as normal.” J.A. 411.


                                              7
schedule. Id. at 333. According to Appellant, calling Peters to confirm that he would be

filling the tanks soon happened “very few times.” Id. at 334.

                                             3.

                                    Tank Refill Process

       Appellant did not keep track of when the tanks were refilled. Genex’s technician,

Peters, did not call ahead when he came to fill the tanks. Instead, Peters would simply

enter Edwards’s unlocked office, take the tanks to his truck, fill the tanks with liquid

nitrogen, return the tanks, and leave a receipt on Edwards’s office desk. These receipts --

printed on half sheets of green paper -- indicated that Peters had been at the farm and had

filled the tanks on that day. However, Edwards testified he “never really kept up with

those little green pieces of paper that [Peters] would leave” and did not regularly retain

the receipts for his records. J.A. 138. After Peters had serviced the tanks, Genex’s main

office would generate an invoice and send it to Appellant for payment. According to

Genex, the billing date and the service date should match unless the territory sales

manager (here, Peters) made a mistake in entering the sale information. The invoice date,

on the other hand, reflects the date that the invoice was actually generated, not the date of

service.

       Peters would also typically note the date of service on a hanging tag attached to a

tank. Appellant noted that Peters “signed [the tag] each and every time that he c[a]me

and filled the tank except [August 31, 2015] the last time that he filled it up.” J.A. 330.

Regardless, Appellant conceded that he did not check the hanging tag with any regularity,

because there had not been any issues with nitrogen levels in the past. See id. at 162

                                             8
(Appellant’s deposition) (“I didn’t pay a lot of attention to that tag until this happened

. . . . Before that there was never an opportunity for me to see [Peters] didn’t date it.”).

                                              4.

                               Cancellation of the Agreements

       On July 13, 2015, Peters filled Appellant’s tanks and noted the date of service on

the hanging tag. Peters testified that he left a receipt, as was his custom, on Edwards’s

desk in the office.

       On September 23, 2015, Appellant received a letter (dated September 17, 2015)

from Genex, which stated that Genex would no longer be providing liquid nitrogen

services in Appellant’s area and thus would not be filling Appellant’s tanks again. The

letter expressly stated that Appellant’s “tank was last serviced on 8/31/2015 to allow

[Appellant] time to find a new provider.” J.A. 244. The letter was accompanied by an

invoice for seven filled tanks, dated August 31, 2015. Critically, however, there was no

August 31 delivery.      Neither the cancellation letter nor the invoice contained any

indication that the last fill date was actually July 13, as opposed to August 31. Based

upon this, Appellant believed that the tanks would need to be refilled in mid-October.

But, Appellant did not verify the liquid nitrogen levels in the tanks.

       While the Agreements provide that Genex would give 60 days’ notice of

termination, Genex admits that it did not provide such notice. See J.A. 420 (Genex’s

interrogatory responses) (“The failure to provide the full 60 day termination notice was

an inadvertent error.”). Rather, the September 17, 2015 cancellation letter expressly

stated that termination of the Agreement was effective upon Appellant’s receipt of the

                                               9
letter. According to Genex, it did not give 60 days’ notice of termination because it was

not only ending its contract with Appellant but ceasing all liquid nitrogen services in

Appellant’s area.

                                              5.

                               Discovery of the Empty Tanks

       On October 12, 2015, Edwards “discovered that four of the seven tanks were

completely empty and the other[s] were extremely low.” J.A. 74. At that point, Edwards

says he first called and left a message for Peters, which was not returned. Edwards then

contacted Appellant, who also attempted, unsuccessfully, to contact Peters. Edwards

then called another liquid nitrogen supplier in an effort to fill the tanks. Edwards was

able to have the tanks filled shortly after. But, despite the quick refill of liquid nitrogen,

four of the seven tanks suffered losses of semen and embryos.

       After Appellant learned of the empty tanks, Appellant checked the hanging tag on

the tank and noticed, for the first time, that Peters had not written down an August 31 fill

date. Rather, the last fill date noted on the tag was July 13, 2015. According to

Appellant, he did not check the tag previously because, “there was never an opportunity

for [him] to see [Peters] didn’t date it.” J.A. 332.

       Prior to October 12, the last time either Appellant or Edwards actually checked the

levels of liquid nitrogen in the tanks was June or July of 2015. See J.A. 382 (Edwards’s

deposition) (“Q: And then how often between June or July and October do you monitor

the tanks? A: I mean, I see them everyday as far as walking through and seeing they’re

there; but as far as checking the nitrogen, I wasn’t checking it.”). At his deposition,

                                              10
Edwards testified that “the last time [he] was in [the tanks] . . . would have been

somewhere [in] June, or first of July, something like that, was probably the last time [he]

was in [the tanks].” Id. at 385.

        On October 14, 2015, Appellant again attempted to contact Genex. Appellant

wrote a letter to Genex, which informed Genex of the error and the resulting financial

loss.   According to Genex, it was “unsure that it received the letter.”         J.A. 422.

Regardless, Genex did not respond to either Appellant’s letter or calls.

                                              B.

                                      Procedural History

        On March 24, 2016, Appellant and Edwards filed a complaint against Genex in the

Eastern District of North Carolina. They raised a single claim of breach of contract,

predicated on Genex’s failure to timely deliver and properly invoice liquid nitrogen.

                                              1.

                                   The First Motion to Amend

        On December 14, 2016, Appellant filed his first motion to amend the complaint.

Specifically, Appellant sought to amend the complaint to remove Edwards as a plaintiff

(leaving himself as the only plaintiff) and to add a UDTPA claim. The UDTPA claim

was based upon Genex’s failure to return Appellant’s phone calls, invoicing of Appellant

for an August 31, 2015 delivery that did not occur, and the failure to promptly invoice

Appellant.

        On April 13, 2017, the district court granted the motion to amend insofar as it

sought to remove Edwards as a plaintiff but denied the motion insofar as it sought to add

                                              11
a UDTPA claim. The district court concluded that such an amendment would be futile,

because Appellant’s amended complaint only “cites to [Genex’s] irresponsible and

unprofessional conduct as well as its inattention to detail,” which the district court found

was “simply insufficient to support the aggravating circumstances necessary to

sufficiently allege a UDTP[A] claim.” J.A. 47.

                                              2.

                                    Deposition of Peters

         On February 16, 2017, after Appellant filed his first motion to amend but before

the district court ruled on the motion, Appellant deposed Peters. Peters testified that if

Appellant had tried to call him -- as Appellant alleged -- he would not have been able to

respond to the call after the date of termination. Specifically, Peters stated that Genex

told him “after a cancellation was sent, [he was] not allowed . . . to sell or to reach out to

[Appellant] anymore.” J.A. 84. Peters was notified of the cancellation of Appellant’s

contract on September 17, 2015, a month before Appellant discovered the empty tanks.

Peters further testified that, as of July 14, 2015 (the day after Peters filled Appellant’s

tanks for the last time), it was Appellant’s responsibility -- not Genex’s -- to monitor the

tanks.

                                              3.

                               The Second Motion to Amend

         On May 5, 2017, Appellant filed a second motion to amend the complaint.

Appellant again sought to amend the complaint to add a UDTPA claim. In support of his

motion, Appellant conceded that the district court had previously denied his very similar

                                             12
motion to amend but Appellant believed that the denial was a result of counsel’s

inarticulate phrasing of the claim.    Further, Appellant proffered that, since the first

motion to amend was filed, Peters had been deposed and testified that Genex had

instructed him not to contact Appellant after the cancellation was sent. Appellant alleged

that this (in addition to the allegations Appellant raised in his first motion to amend) was

immoral, unethical, and misleading.      Therefore, Appellant argued, the district court

should grant the motion to amend the complaint to include a UDTPA claim.

       On September 7, 2017, the district court denied Appellant’s second motion to

amend.       Specifically, the district court found that Appellant “failed to plead any

substantial aggravating circumstances surrounding the alleged breach of contract to

support his [UDTPA] claim” and instead relied on the same allegations of “dilatory,

irresponsible, and unprofessional acts” that the district court had previously held “are

simply insufficient.” J.A. 107–08. The district court further noted that “while Mr.

Peters’[s] deposition was taken after [Appellant’s] first motion to amend was filed, it was

taken three days prior to the motion to amend being submitted to the undersigned, and

[Appellant] failed to notify the Court of its existence during the pendency of the motion

to amend.” Id. at 108. Regardless, the district court found that Peters’s deposition

testimony did “not reveal substantial aggravating factors.” Id. Therefore, the district

court again held that amendment of Appellant’s complaint to add a UDTPA claim would

be futile.




                                            13
                                            4.

                                 Dismissal of the Action

                                            a.

                                      Genex’s Motion

      On September 8, 2017, Genex filed a motion for summary judgment. Genex

presented two arguments in support of this motion. First, Genex argued there was no

evidence that Genex breached its contract with Appellant, and if there was a breach, the

breach was not material. Second, Genex asserted, even if the court determined that

Genex had materially breached the contract, “the terms of the contract contained a

limitation of damages clause associated with loss of embryos” and, therefore, Genex was

entitled to partial summary judgment as to “whether [Appellant] was entitled to recover

damages associated with loss of embryos.” J.A. 110.

      In response, Appellant asserted, first, that Genex had materially breached the

Agreements by: (1) failing to deliver liquid nitrogen on August 31, 2015; and (2) failing

to give 60 days’ notice. Second, Appellant argued that he did not breach the contract

with Genex by failing to routinely monitor the tanks because: (1) there was only an oral

agreement between the parties, not a valid written contract, and thus there was no

monitoring requirement; and (2) Appellant regularly monitored the tanks by visual

inspection. Finally, Appellant argued that Genex should be equitably estopped from

raising the argument that Appellant breached a contract by failing to routinely monitor

the tanks, because Appellant had reasonably relied on Genex’s misrepresentation that the

tanks had been filled on August 31.

                                           14
      Appellant also asserted that there was no enforceable written contract between the

parties because: (1) Appellant had not signed the Agreements; (2) Edwards lacked

authority to sign the Agreements on Appellant’s behalf; (3) Edwards signed the

Agreements on the wrong line; (4) the limitation of damages clause was unenforceable

due to ambiguity or unconscionability; and (5) Edwards is dyslexic and could not

understand the Agreements.

                                            b.

                                   Appellant’s Motion

      On September 14, 2017, Appellant filed a motion for judgment on the pleadings

or, in the alterative, for summary judgment. Appellant argued that he was entitled to

judgment in his favor based upon “the allegations of [Appellant’s] Complaint and the

admissions of [Genex’s] Answer.” J.A. 264. Specifically, Appellant asserted that his

complaint and Genex’s answer established that: (1) “there was an agreement between the

parties for the delivery of Liquid Nitrogen”; (2) “timely and adequate delivery of the

Liquid Nitrogen is essential to the elite reproduction process” on which Appellant’s

business is based; (3) Genex last delivered liquid nitrogen on July 13, 2015, not August

31, and Genex breached the contract by failing to make such delivery on August 31; (4)

Genex “sent [Appellant] a ‘bill’ for $210.00 for filling the tanks on August 31, 2015

when in fact there was no delivery made”; and (5) Genex erroneously told Appellant it

had filled the tanks on August 31. Id. at 264–65.

      Further, Appellant asserted that the Agreements were invalid because: (1)

Edwards lacked authority to bind Appellant to a contract; (2) Edwards signed the

                                           15
Agreements in the wrong place; (3) the “entire agreement” is “ambiguous in many

respects”; and (3) the limitation of damages clause is unconscionable. J.A. 275.

       In response, Genex argued judgment for Appellant was inappropriate because the

valid contract between the parties -- entered into by Edwards on behalf of Appellant --

placed the responsibility on Appellant to routinely monitor the liquid nitrogen levels in

his tank. Genex further argued, because Appellant failed to routinely monitor the liquid

nitrogen levels in his tank, Appellant had breached the Agreements. Finally, Genex

argued, even if there was no valid written contract, “there are no facts [pled] establishing

the existence of a verbal contract” and, therefore, Appellant could not sustain a breach of

contract claim regardless. J.A. 443.

                                             c.

                                The District Court’s Order

       On January 3, 2018, the district court held a hearing on both dispositive motions.

Thereafter, on February 8, 2018, the district court granted Genex’s motion for summary

judgment and denied Appellant’s motion for judgment on the pleadings or, in the

alternative, summary judgment.

       As to Genex’s motion for summary judgment, the district court concluded that

Appellant had failed to raise a genuine issue of material fact as to whether Genex had

breached the contract.    Further, the district court found the written “contract terms

provided that [Genex] would fill [Appellant’s] storage tanks with liquid nitrogen and that

[Appellant] would be responsible for monitoring the liquid nitrogen levels in the tanks to

prevent loss of or damage to his stored biologic products.” J.A. 512. Based upon this,

                                            16
the district court found that Genex did not materially breach the contract by failing to

deliver liquid nitrogen on August 31, by failing to give 60 days’ notice, or by failing to

promptly invoice for the tanks. Accordingly, the district court granted Genex’s motion

for summary judgment and dismissed the action.

       As to Appellant’s motion, the district court found Appellant’s arguments as to the

invalidity of the contract unavailing and held “[t]he terms of the contract between [the

parties] plainly provide that the responsibility to monitor the liquid nitrogen levels in the

storage tanks was solely [Appellant’s].” J.A. 509. The district court further held that

even if there was no valid written contract, Appellant’s motion could not be granted

because he “failed to plead or establish the terms of [a] verbal contract.” Id. at 511. The

district court also found that even if Appellant had successfully pled a valid oral contract,

Appellant “ha[d] proffered no allegation or evidence that this contract was for a definite

term, and thus the oral contract would have been terminable at will by either party.” Id.

       Appellant appeals the district court’s orders denying his motion to amend and

motion for judgment on the pleadings or, in the alternative, for summary judgment, as

well as the district court’s order granting Genex’s motion for summary judgment.

                                             II.

                                             A.

                                     Motions to Amend

       Appellant first argues that the district court erred in denying his motions to amend

the complaint to add a UDTPA claim. We review a district court’s denial of a motion to

amend for abuse of discretion. See Wilkinson v. Montgomery, 751 F.3d 214, 220 (4th

                                             17
Cir. 2014). The district court has broad discretion to deny leave to amend, “so long as it

does not outright refuse to grant the leave without any justifying reason.” Equal Rights

Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (internal quotation marks

omitted). “A district court abuses its discretion by resting its decision on a clearly

erroneous finding of a material fact, or by misapprehending the law with respect to

underlying issues in litigation.” Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 112

(4th Cir. 2013) (internal quotation marks omitted).

      Relevant here, “[a] district court may deny a motion to amend when the

amendment would be prejudicial to the opposing party, the moving party has acted in bad

faith, or the amendment would be futile.” Equal Rights Ctr., 602 F.3d at 603. “A

proposed amendment is futile when it is clearly insufficient or frivolous on its face.”

Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 228 (4th Cir. 2019)

(internal quotation marks omitted).

      Appellant asserts the district court erred in concluding that amendment would be

futile. Appellant asserts he successfully pled sufficient facts to support a UDTPA claim.

We disagree.

                                            1.

                     The Unfair and Deceptive Trade Practices Act

      The UDTPA provides, in part, “Unfair methods of competition in or affecting

commerce, and unfair or deceptive acts or practices in or affecting commerce, are

declared unlawful.” N.C. Gen. Stat. § 75-1.1(a). Under North Carolina law, the elements

of a UDTPA claim are: “(1) an unfair or deceptive act or practice or an unfair method of

                                            18
competition; (2) in or affecting commerce; (3) that proximately causes actual injury to the

plaintiff or to his business.” RD & J Props. v. Lauralea-Dilton Enters., 600 S.E.2d 492,

500 (N.C. Ct. App. 2004). To prevail on such a claim, “a plaintiff need not show fraud,

bad faith, or actual deception.” Id. at 500–01. Rather, “it is sufficient if a plaintiff shows

that a defendant’s acts possessed the tendency or capacity to mislead or created the

likelihood of deception.” Id. at 501.

       Critically, to plead a successful UDTPA claim, a plaintiff must allege egregious or

aggravating circumstances -- a mere mistake is, generally, insufficient. See Phelps

Staffing, LLC v. C.T. Phelps, Inc., 740 S.E.2d 923, 929 (N.C. Ct. App. 2013) (plaintiff

had not “alleged any conduct by [defendant] that amounted to anything other than a

billing error” and thus failed to establish that this conduct “amounted to egregious or

aggravating circumstances”). This is the case because the UDTPA “is not intended to

apply to all wrongs in a business setting.” HAJMM Co. v. House of Raeford Farms, Inc.,

403 S.E.2d 483, 492 (N.C. 1991). “North Carolina courts are extremely hesitant to allow

plaintiffs to attempt to manufacture a tort action and allege [a UDTPA claim] out of facts

that are properly alleged as a breach of contract claim.” Jones v. Harrelson & Smith

Contractors, LLC, 670 S.E.2d 242, 259 (N.C. Ct. App. 2008), aff’d by 677 S.E.2d 453

(N.C. 2009). Accordingly, “[a] mere breach of contract, even if intentional, is not an

unfair or deceptive act under [the UDTPA].”           Bob Timberlake Collection, Inc. v.

Edwards, 626 S.E.2d 315, 323 (N.C. Ct. App. 2006). Rather, to successfully plead a

UDTPA claim predicated upon a breach of contract, a plaintiff “must show substantial

aggravating circumstances attending the breach to recover under the Act.” Eastover

                                             19
Ridge, LLC v. Metric Constructors, Inc., 533 S.E.2d 827, 833 (N.C. Ct. App. 2000)

(internal quotation marks omitted).

                                             2.

                            Appellant’s Proposed UDTPA Claim

       Appellant’s allegations in support of a UDTPA claim in the proposed amended

complaints were, in essence, that: (1) Genex breached the contract between the parties;

(2) Genex misrepresented the fill date of the tanks; (3) Appellant relied on the

misrepresentation, to his detriment; and (4) Genex instructed its employees to end

communications with former customers once the contracts were terminated.

       Appellant does not allege that Genex intentionally lied about the final fill date of

the tanks, and the undisputed record reflects that the date listed on the cancellation notice

and the final invoice were the product of an unfortunate clerical error. Appellant simply

failed to allege “any conduct by [Genex] that amounted to anything other than . . . [an]

error” attending the alleged breach of contract. Phelps Staffing, 740 S.E.2d at 929. An

error alone is insufficient to “show substantial aggravating circumstances attending the

breach.” Watson Elec. Constr. Co. v. Summit Cos., 587 S.E.2d 87, 95 (N.C. Ct. App.

2003) (internal quotation marks omitted). This conduct, without more, simply does not

amount to the egregious or aggravating circumstances attending a breach of contract

necessary to transform an ordinary breach of contract claim into a UDTPA claim. See

Jones, 670 S.E.2d at 259.

       Finally, while Appellant relies heavily upon the disproportionate consequences of

this error in support of his motions to amend (the loss of highly valued biological

                                             20
products), this argument is also insufficient.     A successful UDTPA claim requires

aggravating or egregious circumstances accompanying a breach of contract. It is not

enough to allege aggravating or egregious results of a breach. If that were the case, then

any contract dispute that results in serious losses could present a valid UDTPA claim, a

result North Carolina courts have repeatedly rejected. See, e.g., Jones, 670 S.E.2d at 259

(“North Carolina courts are extremely hesitant to allow plaintiffs to attempt to

manufacture a tort action and allege [a] UDTP[A claim] out of facts that are properly

alleged as a breach of contract claim.”); Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530,

535 (4th Cir. 1989) (“[A] plaintiff must show substantial aggravating circumstances

attending the breach to recover under the [UDTPA] . . . .” (emphasis supplied)).

       Accordingly, we affirm the district court’s denial of Appellant’s motions to

amend.

                                            B.

                                      Contract Claim

                                             1.

       Appellant argues that the district court erroneously granted judgment in favor of

Genex for two reasons.

       First, Appellant argues that there is no valid written contract between the parties.

But, if we were to determine that a valid written contract does exist, Appellant argues that

(1) Genex breached the contract; (2) he satisfactorily complied with the monitoring

requirement of the contract by visually monitoring the tanks; and (3) even if he did not

comply with the monitoring requirement, Genex should be estopped from defensively

                                            21
asserting as much. Second, Appellant asserts that there is a valid oral contract between

the parties that Genex breached by failing to deliver liquid nitrogen on August 31.

       Regardless of whether we conclude that there is a written contract, an oral

contract, or no contract at all, the result is the same: Appellant has no valid claim for

breach of contract.

                                            2.

       We review a district court’s grant of summary judgment de novo. See Gen. Ins.

Co. of Am. v. United States Fire Ins. Co., 886 F.3d 346, 353 (4th Cir. 2018). We also

“review de novo the district court’s ruling on a motion for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c), and in doing so, apply the standard for

a Rule 12(b)(6) motion.” W.C. & A.N. Miller Dev. Co. v. Cont’l Cas. Co., 814 F.3d 171,

175–76 (4th Cir. 2016).

       A district court may grant summary judgment only “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). While we take the facts in the light most favorable

to the non-moving party, “it is ultimately the nonmovant’s burden to persuade us that

there is indeed a dispute of material fact. [He] must provide more than a scintilla of

evidence -- and not merely conclusory allegations or speculation -- upon which a jury

could properly find in [his] favor.” CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364,

370 (4th Cir. 2014) (citation omitted). “A dispute is genuine if a reasonable jury could

return a verdict for the nonmoving party.” Jacobs v. N.C. Admin. Office of the Courts,

780 F.3d 562, 568 (4th Cir. 2015) (internal quotation marks omitted).

                                            22
       Under North Carolina law, “[t]he elements of a claim for breach of contract are (1)

existence of a valid contract and (2) breach of the terms of that contract.” Poor v. Hill,

530 S.E.2d 838, 843 (N.C. Ct. App. 2000). “Courts may enter summary judgment in

contract disputes because they have the power to interpret the terms of contracts.”

McKinnon v. CV Indus., Inc., 713 S.E.2d 495, 500 (N.C. Ct. App. 2011). “Where the

language of a contract is plain and unambiguous, the construction of the agreement is a

matter of law; and the court . . . must construe the contract as written, in the light of the

undisputed evidence as to the custom, usage, and meaning of its terms.” Hodgins v.

Brighton, 674 S.E.2d 444, 446 (N.C. Ct. App. 2009) (internal quotation marks omitted).

       Appellant argues, first, that there is no written contract. Appellant argues, instead,

that there is an oral contract that governs the parties’ relationship.

                                               a.

                                      Written Contract

       Appellant argues that no written contract exists. Alternatively, Appellant argues

that if the Agreements are valid written contracts, the district court should not have

granted judgment in Genex’s favor, because Genex should have been equitably estopped

from asserting that Appellant had breached the contract by failing to routinely monitor

the liquid nitrogen levels in the tanks. We first address Appellant’s equitable estoppel

argument.




                                              23
                                              i.

                                    Equitable Estoppel

       Appellant argues that Genex should be estopped from asserting that he failed to

monitor the liquid nitrogen levels because Appellant reasonably relied upon Genex’s

misrepresentation that the tanks were filled on August 31. Specifically, Appellant argues

that, although he could have discovered the true fill date “by being overly diligent,” he

“was not required to make extensive inquiry under the circumstances.” Appellant’s Br.

25.

       To determine whether equitable estoppel applies, the court must weigh the conduct

of both parties “in the balances of equity and the party claiming the estoppel no less than

the party sought to be estopped must conform to fixed standards of equity.” Hawkins v.

M. & J. Fin. Corp., 77 S.E.2d 669, 672 (N.C. 1953). As relevant here, as to Appellant --

the party asserting estoppel -- the elements are:

              (1) lack of knowledge and the means of knowledge of the
              truth as to the facts in question; (2) reliance upon the conduct
              of the party sought to be estopped; and (3) action based
              thereon of such a character as to change his position
              prejudicially.

Wade S. Dunbar Ins. Agency v. Barber, 556 S.E.2d 331, 336 (N.C. Ct. App. 2001). “A

party cannot rely on equitable estoppel if it was put on inquiry as to the truth and had

available the means for ascertaining it.” Id. (internal quotation marks omitted).

       Here, Appellant cannot invoke equitable estoppel against Genex because

Appellant cannot establish the first element of equitable estoppel -- lack of knowledge.



                                             24
The facts clearly reflect that Appellant had “the means of knowledge of the truth as to the

facts in question.” Barber, 556 S.E.2d at 336. Indeed, Appellant conceded as much.

          Specifically, Peters testified that (1) he left a receipt on Edwards’s desk in the

office after he filled the tanks on July 13; and (2) he noted on the hanging tag that the

tank was filled on July 13. While Appellant argued during litigation that the tag would

not have been reliable because Peters did not note the date of every service, at his

deposition, Appellant testified that Peters signed the tag “each and every time that

[Peters] c[a]me and filled the tank except [August 31],” J.A. 330, and he had simply not

paid attention to the dates on the tag until he discovered the empty tanks, except on rare

occasions where Peters was “running a little late from” the last refill of the tanks. Id. at

336.

          Beyond this admission, Appellant could have learned that the tank had not been

filled on August 31 by simply checking the levels of the tank as the Agreements required.

Or, Appellant could have learned that the tank had not been filled on August 31 by

performing what he himself referred to as “the easiest first check,” J.A. 166, lifting the

tanks to check the weight. Given that the tanks were to be refilled approximately every

twelve weeks, the tanks would have been half of the expected weight of a freshly refilled

tank on August 31. Consequently, if Appellant or Edwards had lifted the tank on or after

August 31, the difference in weight would have been appreciable and would have clearly

indicated that the August 31 fill date could not be accurate. Thus, Appellant certainly

had “the means of knowledge of the truth as to the facts in question.” Barber, 556 S.E.2d

at 336.

                                              25
       Accordingly, like the district court, we hold that Appellant failed to establish an

essential element of equitable estoppel.

                                             ii.

                                     Written Contract

       We first address Appellant’s argument that Genex breached the written

Agreements, then address the possibility that one or more of the tanks is not covered by a

valid written contract. Because we reach the same conclusion in either scenario, we need

not conclusively determine the Agreements’ scope and validity.

       The Agreements expressly waive Genex’s liability for consequential damages.

They each include an “Embryo Storage Policy” providing that “Genex will not accept

responsibility or liability for embryos or any other frozen biologic products.” J.A. 239–

42. The Agreements further provide that “Genex shall have . . . no liability for special,

incidental, indirect, punitive, or consequential damages.” Id. Finally, they place “full

and sole responsibility . . . to monitor [the liquid nitrogen] level routinely” on Appellant.

Id.

       Even if Genex breached the Agreements by terminating them without 60 days’

notice, or by providing Appellant inaccurate information about the most recent service

date, Appellant’s only claimed injury is the loss of semen and embryos -- a consequential

damage that the Agreements plainly do not cover. The lost reproductive stock was a

“frozen biologic product” for which Genex disclaimed liability. And, the injury could

have been avoided if Appellant had performed his responsibility to regularly monitor the

tank levels.

                                             26
       Appellant contends that his and Edwards’s practice of visually inspecting the tanks

satisfied this responsibility, but the undisputed facts establish that this is incorrect.

Appellant testified that neither he nor his son routinely measured the levels in the tanks

regularly from June to the end of September -- rather, Appellant testified that he and his

son only regularly visually inspected the tanks, which, as noted above, only indicates

whether the tank is defective. Such visual inspection does not reveal the level of liquid

nitrogen inside the tanks. Critically, Edwards testified that when he went into the tank in

October and found the tanks to be empty, that was the first time that he had actually

opened the tanks since June or early July. See J.A. 148 (“I don’t know when the last time

I was in [the tanks was] but it would have been somewhere [in] June, or first of July,

something like that, was probably the last time I was in [the tanks].”). Therefore, the

levels of liquid nitrogen in the tanks went unmonitored for at least 16 weeks before

Appellant discovered the tanks were empty.

       It is clear, then, that Appellant failed to meet his contractual responsibility, and

that Genex was not liable under the Agreements for the injury he claims.

                                             b.

                                      Oral Contract

       Next, even if we were to assume that no valid written contract exists, and the

parties’ relationship was instead governed by an oral contract, Appellant’s breach of

contract claim still fails.   Specifically, Appellant failed to adduce any evidence to

establish or plead the terms of the oral contract, including any term relating to the length

or termination of the contract. And, under North Carolina law, where there is no definite

                                            27
end date for an oral contract, the contract is terminable at will. See City of Gastonia v.

Duke Power Co., 199 S.E.2d 27, 30 (N.C. Ct. App. 1973) (“[W]here no time is fixed for

the termination of a contract it will continue for a reasonable time . . . and where the

duration of the contract cannot be implied . . . the contract is terminable at will by either

party on reasonable notice to the other.”).

       Thus, Genex could terminate the contract at any time so long as it provided

Appellant reasonable notice. And, because Appellant does not contest the reasonableness

of the notice here, the letter notifying Appellant of cancellation validly terminated the

contract. See Oral Argument at 4:56–5:05, Edwards v. Genex Coop., Inc., No. 18-1183

(4th Cir. Mar. 21, 2019), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

arguments (“We’re not particularly arguing that they didn’t give reasonable notice, but

what we did was detrimentally rely on that notice, which was clearly in error.”).

       Given that the letter made termination effective upon receipt, Genex’s obligations

under any oral contract that may have existed ceased on September 23, 2015 -- the date

Appellant received the letter -- and Genex had no obligation to fill Appellant’s tanks after

that date. As such, we conclude that Genex did not breach any oral contract.

       Moreover, North Carolina’s Uniform Commercial Code provides that a buyer may

only recover consequential damages resulting from a seller’s breach “which could not

reasonably be prevented by cover or otherwise.” N.C. Gen. Stat. § 25-2-715(2)(a). By

failing to monitor the tanks, including “the easiest first check” of simply lifting them up,

J.A. 166, Appellant failed to take reasonable measures to prevent the consequential

damages that he now claims.

                                              28
      Because Appellant’s claim fails whether an oral or written contract applies, we

affirm the district court’s decisions to grant Genex’s motion for summary judgment and

to deny Appellant’s motion for judgment on the pleadings or, in the alternative, summary

judgment.

                                            III.

      For these reasons, the judgment of the district court is

                                                                           AFFIRMED.




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