                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-1484


ORTECK INTERNATIONAL, INCORPORATED, a Maryland Corporation;
VENETIAN INVESTMENTS, LLC, a Maryland Limited Liability
Company,

                 Plaintiffs – Appellants,

          v.

TRANSPACIFIC TIRE & WHEEL, INCORPORATED, a California
Corporation; GITI TIRE CHINA, a/k/a Grandtour Tire China,
An Alien Corporation; BRIAN CHAN, an Individual; GITI TIRE
(USA) LIMITED,

                 Defendants – Appellees.



                               No. 10-1489


TRANSPACIFIC TIRE & WHEEL, INCORPORATED,

                 Plaintiff – Appellee,

          v.

ORTECK INTERNATIONAL, INCORPORATED, a Maryland Corporation,

                 Defendant – Appellant,

           and

SONNY VEEN, an Individual; DOES 1 THROUGH 50, inclusive,

                 Defendants.
                               No. 10-1912


TRANSPACIFIC TIRE & WHEEL, INCORPORATED,

                 Plaintiff – Appellee,

           v.

ORTECK INTERNATIONAL, INCORPORATED, a Maryland Corporation,

                 Defendant – Appellant,

           and

SONNY VEEN, an Individual; DOES 1 THROUGH 50, inclusive,

                 Defendants.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:05-cv-02882-DKC; 8:06-cv-00187-DKC)


Argued:   October 27, 2011                Decided:   November 17, 2011


Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: John Michael Kotzker, LAW OFFICES OF JOHN M. KOTZKER,
P.A., Raleigh, North Carolina, for Appellants.      Alec Winfield
Farr, BRYAN CAVE, LLP, Washington, D.C., for Appellees.        ON
BRIEF: Jacob A. Kramer, BRYAN CAVE, LLP, Washington, D.C., for
Appellees Transpacific Tire & Wheel, Incorporated, and Brian
Chan; Peter L. Winik, LATHAM & WATKINS LLP, Washington, D.C.,
for Appellees GITI Tire China and GITI Tire (USA) Limited.



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Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       The actions in this consolidated appeal arose after the

business relationship failed between TransPacific Tire & Wheel,

Inc. (TransPacific), a California corporation in the business of

purchasing certain brands of tires from China and distributing

them in North America, and Orteck International, Inc. (Orteck),

a Maryland corporation in the business of distributing tires.

From     February      2003    to     March        2005,       Orteck        was     one     of

TransPacific’s customers.             As a customer, Orteck bought tires

from TransPacific and sold them to a number of downstream tire

distributors.

       The first action (TransPacific v. Orteck) began on August

17, 2005, when TransPacific filed suit against Orteck in the

United      States    District      Court       for     the    Central        District      of

California.       An amended complaint was filed in October 2005.                           In

January     2006,    the   case     was   transferred          to    the    United     States

District Court for the District of Maryland.

       In   its   amended     complaint,        TransPacific          asserted       Maryland

state law claims for, among other things, breach of contract and

conversion.          TransPacific’s         two       breach    of        contract     claims

alleged that Orteck breached several contracts for its purchases

of     tires   from    TransPacific.              TransPacific             contended       that

contracts      existed     between        the     parties      because        Orteck       sent

TransPacific         written      purchase         orders           for     tires,      which

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constituted       offers      for     contracts,    and    TransPacific      accepted

those    contracts      by    fulfilling     Orteck’s     orders.         TransPacific

alleged that Orteck breached those contracts by not remitting

payment to TransPacific for the tires.

      In its conversion claim, TransPacific alleged that Orteck

sold all of the tires owned by TransPacific that were stored at

a warehouse in Maryland (the Maryland Warehouse), but did not

pay   TransPacific        for   those     tires.     TransPacific         argued    that

Orteck     was   liable      for    conversion     because:   (1)    Orteck     was    a

consignee who failed to return or pay for consigned goods; and

(2)   even   if     the      parties’    alleged    consignment      agreement       was

invalid,     Orteck       intentionally       exerted     unlawful    control      over

TransPacific’s property in denial of TransPacific’s right to the

property.

      On    March      30,    2010,    the   district     court    granted    summary

judgment to TransPacific and awarded damages to TransPacific in

the   amount      of    $2,200,360.07        ($475,129.71     on    the    breach     of

contract claims, and $1,725,231.00 on the conversion claim) plus

prejudgment interest.               With respect to the breach of contract

claims, the district court concluded that Orteck entered into

several contracts with TransPacific.                 The district court noted

that, for each contract, Orteck sent a written purchase order

for tires to TransPacific.               Orteck’s purchase order constituted

an offer to enter into a contract.                   In response, TransPacific

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accepted Orteck’s offer for each contract by shipping the tires

described in Orteck’s purchase order and by issuing an invoice

to    Orteck.        TransPacific          arranged      for     the     delivery           of   tires

pursuant       to    Orteck’s          instructions       for       each    of        the    orders.

TransPacific         provided          documents       created      by     Orteck       indicating

that Orteck placed the orders, TransPacific sent invoices, and

bills    of     lading      were       prepared        showing      that        the    tires      were

shipped     from         either    the    factory        in   China        or    TransPacific’s

California warehouse.                   Moreover, Orteck neither disputed that

the    tires    for       each    invoice       were    delivered,         nor        produced     any

evidence to refute the inference that the tires underlying any

of    the   invoices        at     issue    were        delivered.              Finally,         Orteck

presented no evidence to show that Orteck paid TransPacific the

amounts specified in the invoices.

       With regard to the conversion claim, the district court

observed that TransPacific made several shipments of tires to

the Maryland Warehouse.                   Orteck admitted that, in October and

November 2004, it sold the tires stored by TransPacific at the

Maryland Warehouse in a fire sale.                       Orteck admitted that it had

sold or otherwise disposed of tires TransPacific stored in the

Maryland       Warehouse          by    March    3,     2005.         The       district         court

observed that Orteck’s suggestion that TransPacific gave Orteck

permission          to    hold     the    fire     sale       was    without           evidentiary

support.       Orteck did not pay TransPacific for the tires it sold

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in the fire sale.                 According to the district court, Orteck’s

sale       of   TransPacific’s       tires,    without   subsequent    payment       for

those tires, was a distinct act of ownership or dominion exerted

over TransPacific’s property in denial of TransPacific’s right

to the tires.

       Although the district court had not yet entered a final

judgment        (there     were    some   claims   pending   after    the    March   30

decision), Orteck filed a notice of appeal on April 26, 2010.

On April 27, 2010, Orteck filed a Motion to Stay Execution of

Judgment        and   to    Waive     Supersedeas    Bond    During    Pendency      of

Appeal.         On July 13, 2010, the district court denied Orteck’s

motion.         Also on July 13, 2010, the district court granted the

parties’ joint motion for a final judgment pursuant to Rule 54

of     the       Federal      Rules       of    Civil    Procedure,         dismissing

TransPacific’s remaining claims without prejudice and finding no

just reason to delay final judgment in this action.                            Orteck

filed a second notice of appeal on August 5, 2010.

       The second action (Orteck v. TransPacific) began on October

21, 2005, when Orteck filed suit against TransPacific and some

other parties, namely, GITI Tire China (GITI China), Brian Chan,

and GITI Tire (USA) Limited (GITI USA). 1                Amended complaints were


       1
       GITI China is a tire manufacturer located in China and
Indonesia. GITI USA is a Delaware corporation, which began its
operations on November 1, 2005, after acquiring TransPacific’s
(Continued)
                                           - 7 -
filed in November 2005 and September 2006.                            Orteck’s Maryland

breach of contract and promissory estoppel claims proceeded from

allegations        that:        (1)     Orteck        was     granted       an     exclusive

distributorship          to     sell    certain       tire    brands    in       the    United

States;    and     (2)        TransPacific         promised    to    pay    half       of    all

expenses relating to the Maryland Warehouse, which Orteck took

steps to purchase.

      On    June       19,     2009,        the    defendants       moved    for       summary

judgment.        On March 30, 2010, the district court granted the

defendants’ motion.             With respect to Orteck’s breach of contract

claim   that      it     was    granted       an    exclusive       distributorship          for

certain tires, the district court concluded that the alleged

agreement failed to satisfy the Maryland Statute of Frauds.                                  The

district court noted that the email relied upon by Orteck did

not   specify      a    contract       or    a    quantity    of    goods    to    be       sold.

Overall,     in        the     district       court’s       view,    Orteck’s      evidence




assets that were related to TransPacific’s business with Chinese
tire manufacturers.   Chan is a California resident and was an
employee of GITI China and TransPacific. In addition to Orteck,
Venetian Investments, LLC (Venetian) was also a plaintiff in
Orteck v. TransPacific.    Venetian is owned by the same family
that owns Orteck.   Venetian assisted Orteck with the financing
concerning the attempted purchase of the Maryland Warehouse.
Venetian does not appear to be a party in this appeal.       See
Appellant’s Br. at 2 (stating that the “appeal by Orteck
International, Inc. . . . presents four main issues”).



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established that a non-exclusive supplier-customer relationship

existed between the parties.

     With regard to the breach of contract claim concerning the

Maryland Warehouse, the district court concluded that Orteck had

not established that an agreement was ever reached so as to

create    an    enforceable        contract        that   could    be    breached.      The

district       court    noted     that    a       final   agreement      concerning     the

Maryland Warehouse was never reached, because essential terms of

the alleged agreement were never finalized.

     The district court also rejected the promissory estoppel

claims asserted by Orteck.                With regard to the alleged exclusive

distribution         agreement,     the    district        court   noted     that    Orteck

failed    to    show     that     there   was      a   clear     and    definite    promise

regarding the alleged exclusive distribution agreement, because

there    was    no     evidence    that       a   clear    and    definite    promise    of

exclusive distribution rights was made.                      The district court also

noted that there was no evidence that Orteck reasonably relied

on any promise.

     With regard to the Maryland Warehouse, the district court

noted    that    there      was   no   clear       and    definite      promise,    because

Orteck admitted that the agreement between the parties regarding

the Maryland Warehouse was never finalized.                        Because the parties

never    came    to     a   finalized      agreement        regarding      the     Maryland

Warehouse, the district court observed that it would have been

                                           - 9 -
unreasonable for Orteck to rely on any representations made by

TransPacific concerning the Maryland Warehouse.

      On appeal, Orteck makes several arguments.                             First, Orteck

argues that the district court erred when it concluded that the

alleged     exclusive          distribution        agreement     did   not    satisfy    the

Maryland Statute of Frauds.                   Second, Orteck argues the district

court      erred    when       it    held    that     Orteck’s      promissory    estoppel

claims failed on the merits.                   Third, Orteck argues that genuine

issues      of     material           fact     exist     concerning      TransPacific’s

conversion claim.

      Upon       review     of       the    briefs     and    the   record,     and   after

consideration of oral arguments, we conclude that the district

court correctly granted summary judgment to TransPacific in both

TransPacific        v.     Orteck      and    Orteck     v.    TransPacific,      for    the

reasons      stated       in     the       district    court’s      thorough     opinions.

Accordingly, we affirm on the reasoning of the district court.

See Transpacific Tire & Wheel, Inc. v. Orteck Intn’l, Inc., 2010

WL   1375292       (D.    Md.       March    30,   2010);     Orteck   Intn’l,    Inc.   v.

Transpacific Tire & Wheel, Inc., 704 F. Supp. 2d 499 (D. Md.

2010). 2                                                                         AFFIRMED

      2
       In light of our affirmance of the district court’s grant
of summary judgment in these two cases, Orteck’s challenge to
the district court’s denial of its Motion to Stay Execution of
Judgment and to Waive Supersedeas Bond During Pendency of Appeal
is moot.


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