     Case: 09-60752 Document: 00511286258 Page: 1 Date Filed: 11/05/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 5, 2010

                                       No. 09-60752                        Lyle W. Cayce
                                                                                Clerk

UNITY COMMUNICATIONS CORPORATION,

                                                  Plaintiff - Appellant,
v.

AT&T MOBILITY LLC,

                                                  Defendant - Appellee.




                    Appeal from the United States District Court
           for the Southern District of Mississippi, Hattiesburg Division
                              USDC No. 2:03-CV-115


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       This appeal arises from the district court’s final judgment granting AT&T
Mobility LLC’s (ATTM) motion for partial summary judgment and dismissing
Unity Communications Corporation’s (Unity) claims with prejudice.
       At the close of discovery, ATTM moved for partial summary judgment,
arguing that the record fails to support Unity’s breach-of-contract and tortious
breach-of-contract claims and that the Reseller Agreements’ damages-limitation
provision permits recovery of only benefit-of-the-bargain damages. In a lengthy

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 09-60752 Document: 00511286258 Page: 2 Date Filed: 11/05/2010



                                  No. 09-60752

and thorough published order, the district court granted ATTM’s motion for
partial summary judgment and dismissed Unity’s breach-of-contract and
tortious breach-of-contract claims with prejudice. See Unity Commc’ns, Inc. v.
AT&T Mobility, LLC, 643 F. Supp. 2d 829 (S.D. Miss. 2009).                     Unity
subsequently stipulated “that the only damages it seeks in this action are the
damages advanced in the record which fall within the damages limitation
provisions.” The district court thereafter modified its order to dismiss Unity’s
claims on “the additional ground that Unity has failed to establish the essential
element of damages.”
      In addressing Unity’s breach-of-contract claim, the district court rejected
Unity’s argument “that ATTM breached Section 2(a) of the Reseller Agreements
by selling service to its own retail stores at better rates than those given to
Unity”:
      There is absolutely no factual support for Unity’s claim in this
      regard. There is no evidence that the ATTM’s retail stores were
      “resellers.” ATTM’s witnesses have testified that no such reseller
      relationship existed between ATTM and its retail stores. ATTM
      simply sold its products and services directly to retail customers
      through its stores. Unity’s witnesses who testified as to what they
      “thought” or what they “believed” about the retail stores’ affiliation
      with ATTM is nothing more than rank speculation without a basis
      in the facts.
      Nor were ATTM’s retail stores “customers” within the meaning of
      Section 2(a), contrary to Unity’s claims. Unity purchased service
      from ATTM and then repackaged, rebranded, repriced, and resold
      service to Unity’s customers, while the ATTM retail stores did not
      “purchase” cellular service from ATTM, they simply sold ATTM
      service directly to customers. A plain reading of Section 2(a) makes
      it clear that ATTM was only required to offer Unity the same rates
      (taking into account volume discounts) as ATTM offered other
      resellers and similarly situated customers, which ATTM’s retail
      customers were not. The contract is crystal clear on this issue and
      Unity’s attempt to create an ambiguity therein fails.


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                                  No. 09-60752

      The district court similarly rejected Unity’s tortious breach-of-contract
claim:
      Unity can point to no real evidence that ATTM acted with malice
      or with gross or reckless disregard for Unity’s rights. Unity’s
      principles, Ingam, McKibben and Phillips, all testified that they
      knew of no evidence of intent by ATTM to harm Unity. Counsel’s
      argument to the contrary is simply without merit. There is simply
      no evidence in the record which creates a genuine dispute that
      ATTM acted with malice, gross negligence or reckless disregard
      toward Unity. The tortious breach claim thus fails.
      With respect to ATTM’s damages-limitation argument, the district court
noted that the issue is relevant only to Unity’s remaining claim for breach of the
implied covenant of good faith and fair dealing because it had just dismissed the
other claims.   In support of this claim, Unity argued that the damages-
limitation provisions do not apply to such a breach because it is an extra-
contractual tort under Mississippi law. After a careful analysis of Mississippi
law, the district court rejected Unity’s argument because “the breach of the
implied duty of good faith and fair dealing in this contract case is not a tort
under Mississippi law, thus there is no reason to impose Mississippi tort law on
this action.” Accordingly, the district court applied Georgia law, as required
under the Reseller Agreements’ choice-of-law provision, and based on that law,
concluded    that “the    damages limitation      provisions of the      Reseller
Agreements . . . clearly and unambiguously limit the types of damages available
to Unity.”
      We agree with the district court. Accordingly, we AFFIRM the judgment
of the district court essentially for the reasons stated in the district court’s
careful and thorough order, dated July 17, 2009, as modified by its order dated
September 15, 2009.




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