UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: DEVOTION ASSOCIATES,
LIMITED, a limited partnership,
Debtor,

DEVOTION ASSOCIATES, LIMITED, a
North Carolina limited partnership;
E. HAROLD KEITH; RALPH K. INGRAM,
Plaintiffs-Appellants,
                                                               No. 95-1939
v.

ROBERT M. ALLEN, JR.; CULPEPPER
LAND & CATTLE COMPANY,
INCORPORATED; RICHARD M.
CROWDER, JR.; CROWDER REALTY &
INVESTMENT COMPANY, INCORPORATED,
d/b/a Crowder Realty, Incorporated,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(BK-91-449-TMM)

Argued: April 4, 1996

Decided: May 20, 1996

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Brent Earl Wood, Raleigh, North Carolina, for Appel-
lants. Urs Roland Gsteiger, WILSON & ISEMAN, L.L.P., Winston-
Salem, North Carolina, for Appellees Allen and Culpepper Land &
Cattle; James Anthony Penry, WYRICK, ROBBINS, YATES &
PONTON, L.L.P., Raleigh, North Carolina, for Appellees Crowder
and Crowder Realty.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this diversity case, appellant Devotion Associates, Ltd., asserts
a host of state law claims in connection with a court-approved bank-
ruptcy sale of its property. The bankruptcy court rejected several of
the allegations on summary judgment, and the district court dismissed
the remaining ones. We now affirm.

I.

In 1979, Devotion purchased a piece of property in North Carolina,
with the hope of converting it into separate tracts of land for weekend
homes. Efforts to develop the property failed, however. In 1990,
Devotion defaulted on a payment due on one of its notes, and foreclo-
sure proceedings were initiated.

To avoid the impending foreclosure, Devotion filed a petition for
relief under Chapter 11 of the Bankruptcy Code on January 31, 1991.
During this time, appellant E. Harold Keith, a partner in Devotion,
was attempting to market the property to potential buyers. He enlisted
the assistance of several realtors, including appellee Robert M. Allen,
Jr.

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Devotion filed a modified plan of reorganization with the bank-
ruptcy court on September 13, 1991 (the court had refused the initial
plan). Under the modified plan, all creditors would be paid in full by
November 30, 1991, using proceeds from the sale of the Devotion
property. The bankruptcy court set a confirmation hearing regarding
this plan for October 1, 1991.

In late September 1991, Allen advised Keith that he had found a
group of individuals who were interested in purchasing the property.
Evidently to protect the buyers' identities, the sales contract listed
appellee Culpepper Land & Cattle Co., a company Allen had formed
to buy and sell real estate, as the purchaser -- Culpepper was to resell
the property to the ultimate buyers. The contract specified a selling
price of $1.7 million. Importantly, the agreement also contained a
broad termination clause allowing Culpepper to rescind "for any rea-
son" by giving notice by November 1, 1991.

Devotion presented the contract to the bankruptcy court at the
October 1 confirmation hearing. In testimony that he now admits was
exaggerated, Allen informed the court that there were three ultimate
purchasers who had made commitments to him, and that if necessary,
Culpepper had the resources to purchase the property itself. The court
approved the contract, and the parties then executed it.

Allen, though, was unable to complete the sale to the prospective
buyers for $1.7 million. There is some dispute whether Allen misled
Keith about the commitment he had obtained from the unidentified
purchasers. At any rate, on October 23, Allen approached another
potential buyer, Charles McKinney, who had previously expressed an
interest in the property. McKinney responded on October 30 with an
offer of $1.4 million.

On October 31, Allen informed Keith that he had failed to finalize
the sale at the $1.7 million price. But, Allen told Keith, an amended
contract with a new price of $1.4 million was available for his
approval. The next day, November 1, Allen (on behalf of Culpepper)
terminated the original contract pursuant to its termination clause, and
Keith (on behalf of Devotion) executed the amended agreement sell-
ing the property for $1.4 million. The bankruptcy court approved the

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amended contract on November 15, and the transaction closed on
November 26.

Devotion then filed this suit on August 12, 1993, alleging several
state law causes of action, including breach of contract and implied
duty of good faith, interference with contract, fraud, breach of fidu-
ciary duty, and unfair trade practices. On October 14, 1994, the bank-
ruptcy court rejected the first two claims on summary judgment. The
district court held a jury trial on the remaining claims on April 3-12,
1995. After Devotion presented its case, the district judge dismissed
these claims as a matter of law, primarily for failure to prove dam-
ages. Devotion now appeals from both the bankruptcy and district
court rulings.

II.

We first consider Devotion's appeal from the bankruptcy court's
award of summary judgment on its claims of breach of contract and
implied duty of good faith and interference with contract. We agree
with the bankruptcy judge that there was no breach of contract or
interference with contract here. The termination clause, of which
Devotion was aware when it executed the contract, gave the buyer
(Culpepper) an absolute right to void the contract by giving notice on
or before November 1, 1991.1 Culpepper, consequently, was essen-
tially under no obligation to purchase the property for $1.7 million,
and it gave timely notice of termination on November 1. Keith, more-
over, was sufficiently sophisticated in real estate matters to fully
grasp the import of the agreement's terms. In short, there simply was
_________________________________________________________________
1 The termination clause reads:

          If, after the expiration of the inspection period[on November 1,
          1991], Buyer shall, for any reason in Buyer's sole discretion,
          judgment and opinion, disapprove or be dissatisfied with any
          aspect of the Land, the improvements, or any item examined by
          Buyer . . . then Buyer shall be entitled to terminate this Agree-
          ment by giving written notice thereof to Seller on or before
          November 1, 1991 . . . whereupon this Agreement shall automat-
          ically be rendered null and void and thereafter neither Seller nor
          Buyer shall have any further obligation or liabilities to the other
          hereunder.

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no contractual breach or interference with contract-- the terms were
wholly complied with. With respect to a duty of good faith, mean-
while, an "implied duty of good faith cannot be used to override or
modify explicit contractual terms." Riggs Nat'l Bank v. Linch, 36 F.3d
370, 373 (4th Cir. 1994).

III.

We turn next to Devotion's appeal from the district court's dis-
missal as a matter of law of its actions for fraud, breach of fiduciary
duty, and unfair trade practices. These claims all share a common
shortcoming -- the inability to establish damages. Devotion signed a
contract selling the property for $1.4 million. It had not received any
concrete offers at a higher price, except the $1.7 million contract that
fell through. And the $1.7 million offer cannot form the basis of a
damage recovery because it was properly rescinded under the termi-
nation clause. Any reference to other potential offers is speculative,
and thus cannot establish damages. E.g., Pike v. Wachovia Bank and
Trust Co., 161 S.E.2d 453, 466 (N.C. 1968). In fact, the sales price
of $1.4 million seems most reasonable -- the bankruptcy court valued
the property at $1.17 million and Devotion's own appraiser had esti-
mated a value of $1.38 million.

Devotion asserts that it should be entitled to the"benefit of its bar-
gain," or the difference between the initial $1.7 million contract and
the eventual $1.4 million selling price. Leaving aside whether a bene-
fit of the bargain theory can be invoked where the"bargain" price is
one that can be terminated essentially at will, the theory typically
applies when a buyer makes a purchase in reliance on a seller's mis-
representations and the buyer seeks the difference between the repre-
sented value and the actual value. See 37 Am. Jur. 2d, Fraud and
Deceit, § 353 (1968). Here, however, Devotion is the seller, not the
buyer, and so the benefit of the bargain theory is inapplicable.

Devotion, in short, cannot establish that it suffered damages on
account of any fraud, breach of fiduciary duty, or unfair trade prac-
tice. It simply has no reason to complain -- it executed the $1.7 mil-

                     5
lion contract knowing that the agreement could be terminated at will,
and it executed an amended contract for sale at a price of $1.4 million.2

IV.

For the foregoing reasons, the judgments of the bankruptcy and
district courts are hereby

AFFIRMED.
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2 We also reject Devotion's argument that it suffered damages from
selling certain personal property and parcels of land that, in Devotion's
view, should not have been among the items sold. The contested items
were included in the contract that Devotion signed.

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