                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-1416


CARPET SUPER MART, INC., a North Carolina Corporation; ARTHUR C.
JORDAN, JR.; JOYCE J. MOBLEY,

                    Plaintiffs - Appellants,

             v.

BENCHMARK INTERNATIONAL COMPANY SALES SPECIALIST, LLC, a
Florida Limited Liability Company; DARA SHAREEF, an individual; BRIAN
LOCKLEY, an individual,

                    Defendants - Appellees.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:18-cv-00398-WO-JEP)


Submitted: December 6, 2019                                       Decided: January 8, 2020


Before WILKINSON, FLOYD, and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Scott K. Tippett, HAGAN BARRETT, PLLC, Greensboro, North Carolina, for Appellants.
Scott M. Tyler, MOORE & VAN ALLEN PLLC, Charlotte, North Carolina; Jason H.
Baruch, Anthony J. Palermo, HOLLAND & KNIGHT LLP, Tampa, Florida, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Carpet Super Mart, Inc., through its owners Arthur C. Jordan, Jr., and Joyce J.

Mobley (collectively, “CSM”), entered into an agreement with Benchmark International

Company Sales Specialist, LLC (“Benchmark”), to facilitate the sale of CSM’s assets to a

third party in exchange for “5% of the Transaction Value.” (J.A. 1 197). But once CSM’s

assets sold, the parties were unable to agree as to the proper calculation of Benchmark’s

fee. Specifically, although the contract indicated that the Transaction Value was equivalent

to the total benefit that CSM received, CSM maintained that, in oral communications,

Benchmark misled CSM into believing that Benchmark’s consideration was limited to 5%

of the purchase price. As a result, CSM commenced the instant action against Benchmark,

seeking a judgment declaring the agreement unenforceable and asserting claims of fraud

and unfair and deceptive trade practices. The district court granted Benchmark’s motion

to dismiss, concluding that Benchmark’s alleged misstatements could not alter or amend

the clear language of the contract. For the reasons that follow, we affirm.

       We review a district court’s dismissal under Fed. R. Civ. P. 12(b)(6) de novo,

“assuming as true the complaint’s factual allegations and construing all reasonable

inferences in favor of the plaintiff.” Semenova v. Md. Transit Admin., 845 F.3d 564, 567

(4th Cir. 2017) (internal quotation marks omitted). To survive a motion to dismiss, a

complaint must contain sufficient facts to state a claim that is plausible on its face. Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).


       1
           Citations to “J.A.” refer to the joint appendix filed by the parties in this appeal.

                                                 2
      CSM first contends that the Transaction Value provision was too vague to be

enforceable. While this claim echoes the amended complaint’s allegation that “[t]here was

no meeting of the minds regarding the amount, manner, and method of the calculation and

computation of the commission” (J.A. 183), CSM failed to present this argument in its

opposition to Benchmark’s motion to dismiss, instead focusing on its claim that the

agreement was ambiguous. For this reason, we decline to consider CSM’s vagueness

challenge on appeal. See Cox v. SNAP, Inc., 859 F.3d 304, 308 n.2 (4th Cir. 2017).

      Next, CSM contends that Benchmark fraudulently induced CSM’s assent by orally

misrepresenting the terms of the contract and failing to provide a copy of Benchmark’s

standard terms and conditions—which included the Transaction Value provision at issue—

that the agreement incorporated by reference. 2 However, under the applicable state law, a

party who signs a contract without reading it is bound by its terms unless the other party

makes “a false representation of fact materially affecting the value of the contract and

which is peculiarly within the knowledge of the person making it and in respect to which

the other person in the exercise of proper vigilance has not an equal opportunity of

ascertaining the truth.” Davis v. Davis, 124 S.E.2d 130, 133 (N.C. 1962). Here, far from

being peculiarly within Benchmark’s knowledge, the existence of the standard terms was

readily apparent from the face of the agreement; thus, it was incumbent upon CSM to seek



      2
         In the district court, CSM disputed whether Benchmark had properly incorporated
its standard terms into the parties’ agreement. But because CSM makes only a passing
reference to this claim in the argument section of its opening brief, we conclude that CSM
has abandoned this challenge on appeal. See Fed. R. App. P. 28(a)(8)(A); Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562, 568 n.7 (4th Cir. 2015).
                                            3
out the standard terms to which it was agreeing. See id. (“Where ordinary care and

prudence are sufficient for full protection [from fraudulent misrepresentations], it is the

duty of the party to make use of them.” (internal quotation marks omitted)). By choosing

to accept Benchmark’s representations without asking to review the standard conditions,

CSM was bound by the terms it neglected to discover. Consequently, any cause of action

for fraud necessarily failed.          Furthermore, insofar as Benchmark’s alleged

misrepresentations conflicted with the terms of the agreement, CSM’s reliance on

Benchmark’s verbal assurances was unreasonable, thus defeating the claim for unfair and

deceptive trade practices. See Bumpers v. Cmty. Bank of N. Va., 747 S.E.2d 220, 227 (N.C.

2013).

         Finally, CSM asserts that, even if the agreement was enforceable, it was ambiguous.

“An ambiguity exists in a contract when either the meaning of words or the effect of

provisions is uncertain or capable of several reasonable interpretations.” Schenkel &

Shultz, Inc. v. Hermon F. Fox & Assocs., P.C., 658 S.E.2d 918, 921 (N.C. 2008) (internal

quotation marks omitted). Here, the Transaction Value provision clearly identified the

metric for measuring Benchmark’s fee—i.e., the total benefit received by CSM—then

indicated how Benchmark might determine the total benefit. While complaining that the

provision left unresolved how exactly Benchmark would calculate its fee, CSM fails to

explain how it was susceptible to multiple reasonable interpretations. Thus, we reject

CSM’s claim that the parties’ agreement was ambiguous.




                                              4
       Accordingly, we affirm the district court’s order. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                AFFIRMED




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