                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                   FOR THE FOURTH CIRCUIT


PHILIP J. STAUN,                          
                    Plaintiff-Appellee,
                   v.                              No. 00-1630
RALLY’S, INCORPORATED,
               Defendant-Appellant.
                                          
           Appeal from the United States District Court
     for the Middle District of North Carolina, at Greensboro.
             N. Carlton Tilley, Jr., Chief District Judge.
                           (CA-93-333-2)

                         Argued: March 2, 2001

                        Decided: January 16, 2003

       Before WIDENER and LUTTIG, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                               COUNSEL

ARGUED: Donnell Roy Grubbs, SHAYNE & GREENWALD CO.,
L.P.A., Columbus, Ohio, for Appellant. Thomas Keith Black, FOR-
MAN, ROSSABI, BLACK, MARTH, IDDINGS & ALBRIGHT,
P.A., Greensboro, North Carolina, for Appellee. ON BRIEF: Gary D.
Greenwald, SHAYNE & GREENWALD CO., L.P.A., Columbus,
Ohio; Julianna C. Theall, Matthew W. Sawchak, SMITH, HELMS,
MULLISS & MOORE, L.L.P., Greensboro, North Carolina, for
2                       STAUN v. RALLY’S, INC.
Appellant. Paul Edward Marth, FORMAN, ROSSABI, BLACK,
MARTH, IDDINGS & ALBRIGHT, P.A., Greensboro, North Caro-
lina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

   Rally’s, Inc. (Rally’s) appeals the district court’s denial of its
motion for judgment as a matter of law, or in the alternative, for a
new trial, Fed. R. Civ. P. 50. The district court denied Rally’s motion
following the jury’s verdict in favor of Philip Staun (Staun) on his
breach of contract claim against Rally’s. We affirm.

                                   I

   From October 1990 until January 29, 1993, Staun was vice-
president of manufacturing at Beaman Corporation (Beaman). Under
his employment agreement with Beaman, Staun was entitled to
numerous salary, fringe, and severance benefits. No severance was
payable, however, if Staun was terminated for cause.

   In December 1992, Beaman filed for bankruptcy after its London
parent went into receivership. That same month, Rally’s purchased all
of Beaman’s stock.

   On January 22, 1993, Wayne Albritton (Albritton), the president of
Rally’s, met with Vincent Derr (Derr), Beaman’s president, and asked
for both his resignation and Staun’s. In his initial conversation with
Albritton, Derr was told that Rally’s would honor both employees’
employment agreements. Derr communicated this information to
Staun. William Klausman (Klausman), Rally’s attorney, later con-
firmed to Staun that Rally’s would honor the employment agree-
                        STAUN v. RALLY’S, INC.                       3
ments. Both Derr and Staun wanted a written commitment from
Rally’s and, with that goal in mind, they did not tender their resigna-
tions, but continued to work the week of January 25, 1993. Derr and
Staun hired attorneys to negotiate a final severance package from
Rally’s. Derr hired Jonathan Harkavy (Harkavy) and Staun hired Fred
Hamlet (Hamlet).

   The first negotiation on severance packages for Derr and Staun
occurred on January 26, 1993 in a conference call between Hamlet,
Harkavy, and Klausman. Harkavy and Hamlet requested several items
for their clients in addition to severance pay. These items included
accrued vacation, restoration of the employees’ original salaries
(since both had taken a voluntary pay cut), health insurance, and
country club and car allowances, which had been part of the original
employment agreements. Klausman informed them that he would
look into these items and get back to them.

   On January 29, 1993, Klausman called Harkavy and stated that he
was submitting Rally’s final, non-negotiable offer. Derr was to have
a 10% restoration of his salary, but Staun was to be paid at his
reduced rate. Derr was to be paid some of his accrued vacation, but
Staun would not. Both employees would get health insurance for six
months, but neither employee would get country club or car allow-
ances. Harkavy further recorded in his notes that Rally’s would pre-
vent a "free fall." (J.A. 396). When questioned as to the meaning of
that statement, Harkavy testified:

      That had specific reference to what, which was the heart of
      what I was asking for, which was the agreement from
      Rally’s to be the underwriter on this. And he specifically
      said, this was Klausman specifically saying, Rally’s would
      prevent a free fall—free fall from being that they (Derr and
      Staun) wouldn’t get paid at all.

Id.

   Harkavy and Derr then went to Hamlet’s office where Harkavy
first met with Hamlet privately and explained Klausman’s offer.
Harkavy told Hamlet that Staun would not receive any vacation bene-
fits because of the allegation that Staun had been excessive in his air
4                       STAUN v. RALLY’S, INC.
travel. The attorneys then met with both clients and communicated
Rally’s offer to them, including the provision that Staun would not be
receiving accrued vacation, again due to the excessive travel allega-
tion. Hamlet urged Staun to accept the deal.

   Harkavy then left a message for Klausman, and all four men waited
for him to return the call. When the call came in, all four men went
to Hamlet’s conference room, and the call was placed on a speaker
phone. Harkavy reiterated the deal that had been offered that morning
first to Derr, then to Staun. It was again confirmed that Derr, but not
Staun, would receive accrued vacation pay. After all points of both
agreements had been confirmed by Klausman, Harkavy accepted on
behalf of Derr, and Hamlet accepted on behalf of Staun.

   Harkavy and Klausman then discussed the date on which the agree-
ment would take effect. Klausman indicated that he did not want Derr
and Staun to return to work the following Monday. Harkavy asked,
since the employees were in the middle of a pay period, if Derr and
Staun could receive their regular pay through February 5, 1993, at
which time the severance agreement would take effect. Klausman
agreed. Derr and Staun did not return to work, and both received their
regular pay through February 5, 1993.

  Harkavy volunteered to prepare proposed drafts of the severance
agreements and forward them to Klausman. Harkavy then prepared
drafts of two documents, a resignation letter to the new president of
Beaman and a letter of agreement from Rally’s. The Rally’s letter
contained the following provision:

    Rally’s obligation to you is not dependent upon the approval
    of any judicial, administrative or private authority and is
    subject only to Beaman’s failure for any reason to perform
    its obligations to you when due under your agreements with
    Beaman.

(J.A. 969).

  Harkavy then faxed these documents to Hamlet for his review.
Hamlet made some changes and then faxed his revisions to Harkavy.
                        STAUN v. RALLY’S, INC.                         5
On February 3, 1993, Harkavy faxed the documents to Klausman with
a cover sheet which read: "To expedite the effectuation of our agree-
ments, here are drafts which Fred and I have prepared, but which our
clients have not yet reviewed." (J.A. 967). The documents included
Derr’s name, but not Staun’s. Harkavy testified that, since the agree-
ments were to contain essentially the same language, there was no
need to fax an identical set of proposed drafts with Staun’s name on
them. Klausman transmitted the documents to Beaman’s counsel,
Charles Ivey (Ivey), for review. Ivey was out of town and his partner,
James Talcott (Talcott), reviewed the documents. In a letter to Klaus-
man, Talcott informed Klausman that, with a few minor clarifications,
the agreements seemed fair to Rally’s, Beaman, Derr, and Staun.

   Derr received his severance checks and executed a letter regarding
the agreement, which contained the identical language noted above.
Staun received his last paycheck on February 8, 1993, but did not
receive any severance checks. In the first week of March 1993, Staun
received a termination for cause letter from Ivey.

   On April 28, 1993, Staun filed a complaint in the Superior Court
for Guilford County, North Carolina alleging four causes of action
against Rally’s: (1) breach of contract under North Carolina law; (2)
violation of the North Carolina Wage and Hour Act; (3) negligent
misrepresentation under North Carolina law; and (4) unfair acts or
practices under North Carolina law.

   On May 28, 1993, Rally’s removed the case to the United States
District Court for the Middle District of North Carolina. On January
7, 1994, the case was referred to arbitration. Attempts at arbitration
were unsuccessful and the case was set for trial.

   On January 9, 1995, the district court empaneled a jury and heard
arguments upon various pretrial issues. The district court ruled that it
would not permit Staun’s claim for a violation of the North Carolina
Wage and Hour Act to be presented to the jury, instead limiting the
issues to be tried to "whether or not there was a contract and whether
or not that contract was breached." (J.A. 101).*

  *On January 10, 1993, Staun voluntarily dismissed with prejudice his
negligent misrepresentation claim and his unfair acts or practices claim.
On January 18, 1993, the district court dismissed Staun’s North Carolina
Wage and Hour Act claim as a matter of law.
6                       STAUN v. RALLY’S, INC.
  At the close of Staun’s evidence, Rally’s moved for judgment as
a matter of law on the ground that the North Carolina Statute of
Frauds (Statute of Frauds) barred the enforcement of the alleged
agreement and the ground that no agreement had been formed on Jan-
uary 29, 1993. The district court denied the motion.

   The jury was presented with five interrogatories. The first four
interrogatories asked: (1) whether Klausman made an offer to Staun
on behalf of either Beaman and/or Rally’s on January 29, 1993; (2)
whether the offer was accepted orally by Hamlet and/or implicitly by
Staun’s conduct in not returning to work; (3) whether Klausman had
apparent authority to bind Beaman and/or Rally’s; and (4) whether the
agreement was ratified by Rally’s and/or Beaman. The fifth and final
interrogatory asked the jury to decide if the agreement was an inde-
pendent obligation by Rally’s or was a guarantee, dependent on any
obligation by Beaman to Staun, or neither of those choices.

   After deliberations, the jury answered the first four interrogatories
in favor of Staun, but could not reach unanimous agreement on the
fifth interrogatory. After hearing the arguments of counsel, the district
court substituted the following question for the fifth interrogatory:

    Members of the jury, in lieu of question 5, I’m going to sub-
    mit to you a substitute issue at this time which reads: Has
    it been proven by a preponderance of the evidence that
    Rally’s would pay Mr. Staun if for any reason whatever
    Beaman did not pay? And any reason whatever means any
    reason, whether or not Mr. Staun was terminated for cause
    or any reason, whether bankruptcy court wouldn’t allow it,
    whether Beaman just decided not to pay it. Any reason
    whatever encompasses any reason whatever, just exactly
    what those words mean. So the question to you is, has that
    been proven by a preponderance of the evidence.

(J.A. 949).

  In response, the jury answered this question affirmatively. A suc-
cessive interrogatory on whether the agreement had been breached
was also answered affirmatively. A final judgment, awarding Staun
                        STAUN v. RALLY’S, INC.                       7
his severance, health benefits, and costs was entered on May 31,
1995.

   On June 9, 1995, Rally’s filed a motion for judgment as a matter
of law or, in the alternative, for a new trial. On April 17, 2000, the
district court denied Rally’s motion.

                                  II

   On appeal, Rally contends that the district court erred in denying
its motion for judgment as a matter of law or, in the alternative, for
a new trial because: (1) no evidence supports the jury’s finding that
an enforceable agreement was formed on January 29, 1993; (2) the
alleged enforceable agreement is barred by the Statute of Frauds; (3)
the district court improperly bifurcated the issues to be tried by the
jury and failed to permit testimony on the issue of termination for
cause; and (4) the jury should have been instructed and heard evi-
dence regarding the Statute of Frauds.

  After considering the joint appendix, the parties’ briefs, and the
oral arguments of counsel, we are persuaded that the district court
correctly decided the issues before it. We therefore affirm on the rea-
soning of the district court. Staun v. Rally’s, Inc., No. 2:93CV00333
(M.D.N.C. April 17, 2000).

                                                          AFFIRMED
