                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1520



FINAL   ANALYSIS     COMMUNICATION   SERVICES,
INCORPORATED,

                                            Plaintiff - Appellant,

          versus


GENERAL DYNAMICS CORPORATION; GENERAL DYNAMICS
INFORMATION SERVICES, INCORPORATED,

                                           Defendants - Appellees,

          versus


MARCUS & BONSIB; BRUCE MARCUS; ORBCOMM, LLC;
MICHAEL H. AHAN,

                                                 Parties-in-interest.
----------------

ALVIN FREDERICK,

                                                             Movant.



                            No. 06-1553



FINAL   ANALYSIS     COMMUNICATION   SERVICES,
INCORPORATED,

                                               Plaintiff - Appellee,

          versus
GENERAL DYNAMICS CORPORATION; GENERAL DYNAMICS
INFORMATION SERVICES, INCORPORATED,

                                          Defendants - Appellants,

           versus

MARCUS & BONSIB; BRUCE MARCUS; ORBCOMM, LLC;
MICHAEL H. AHAN,
                                                 Parties-in-interest.
----------------

ALVIN FREDERICK,

                                                             Movant.


Appeals from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, District Judge.
(8:03-cv-00307-PJM)


Argued:   September 26, 2007            Decided:    November 1, 2007


Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Joseph F.
ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.


Affirmed in part; reversed in part by unpublished per curiam
opinion.


ARGUED: James J. McGuire, Mark Arthur Berube, SHEPPARD, MULLIN,
RICHTER & HAMPTON, L.L.P., New York, New York, for Appellant/Cross-
Appellee. Donald Beaton Verrilli, Jr., JENNER & BLOCK, L.L.P.,
Washington, D.C., for Appellees/Cross-Appellants. ON BRIEF: John
M. Quinn, ETHRIDGE, QUINN, MCAULIFFE, ROWAN & HARTINGER, Frederick,
Maryland; Elaine J. Goldenberg, Iris E. Bennett, Brian Hauck,
JENNER & BLOCK, L.L.P., Washington, D.C.; Linda L. Listrom, Michael
A. Doornweerd, Matthew J. Thomas, JENNER & BLOCK, L.L.P., Chicago,
Illinois, for Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.


                                2
PER CURIAM:

       Final      Analysis      Communication      Services,       Inc.   (“FACS”),   a

company established to own and operate satellite communication and

data   services,         brought      this    action     against     General    Dynamics

Corporation        and    General      Dynamics        Information    Services,    Inc.

(collectively “General Dynamics”), alleging breach of contract,

fraud,      and    related       causes       of   action.         General      Dynamics

counterclaimed for breach of contract.                   The district court granted

summary judgment in favor of General Dynamics on FACS’ fraud and

related claims, and the remaining claims proceeded to trial.                          A

jury returned a mixed verdict, finding partially in favor of FACS

and partially in favor of General Dynamics, and awarding damages to

each party on the claims on which it prevailed.                    The district court

then granted in part and denied in part General Dynamics’ motion

for judgment as a matter of law and denied FACS’ motion for

judgment as a matter of law in its entirety.                           Each party now

appeals from the district court’s post-trial rulings; additionally,

FACS appeals from the grant of General Dynamics’ motion for summary

judgment.      We affirm in part and reverse in part.



                                               I

       As   noted,       FACS   was    a     company    which   planned    to   operate

satellites that would provide data and communication services.

From the time of its inception, FACS sought funding from four


                                               3
sources.    First, FACS planned to raise $40 million from general

investors; second, FACS sought $50 million in equity from strategic

partners; third, FACS intended to raise money in the high-yield

bond market; and fourth, FACS planned to reinvest revenue from its

operations in order to finance expansion.

     Between December 1998 and June 2000, FACS and General Dynamics

entered into several principal contracts providing for design,

construction, and financing of FACS’ systems.                  Of these, the

Strategic   Equity      Partner   Agreement     (“SEPA”)      served   as     the

overarching contract governing the relationship between the parties

and detailing the financing and construction which General Dynamics

would perform.     The Command and Data Handling Subsystem Contract

(“C&DH Contract”) and the Overall System Engineering, Integration

and Test and Ground Segment Prime Contract (“SEI/GS Contract”) were

construction contracts which specified the systems and products

which   General   Dynamics     would   construct     for   FACS.    The     Stock

Purchase Agreement (“SPA”) was executed to carry out General

Dynamics’ financing obligations under the SEPA. Finally, the First

Amendment   to    the   SEPA   (“First     Amended   SEPA”)   and   the     First

Amendment to the SPA (“First Amended SPA”) were signed to amend the

original SEPA and SPA to provide for additional construction and

financing obligations.         The majority of these contracts were

executed on General Dynamics’ behalf by James Finley, General

Dynamics Information Services’ President.


                                       4
      In September 2000, General Dynamics suspended performance

under all of its contracts with FACS, alleging that FACS had failed

to pay prior amounts due General Dynamics under invoices issued for

work performed under the construction contracts.           General Dynamics

also based its suspension of performance on the unavailability of

planned financing for FACS, due to a severe downturn in the high-

yield bond market.     FACS, on the other hand, contends that General

Dynamics breached its obligations under its contracts with FACS

after discovering that Finley had entered into those contracts

without authority and without the approval of his superiors.            FACS

also alleges that General Dynamics sought to escape its contractual

obligations    to    FACS   after   realizing    how      open-ended   those

obligations were.       Whatever the reason for General Dynamics’

suspension of performance, it is undisputed that FACS collapsed

after the suspension.

      FACS filed this suit, seeking recovery for General Dynamics’

breach of each of the contracts and for fraud and related torts.

FACS also sought consequential damages for its collapse, which it

alleges General Dynamics caused.         General Dynamics counterclaimed

for   the   unpaid   invoice   amounts   and   for   an   unpaid   indemnity

obligation allegedly owed it by FACS. For clarity, we discuss each

of the causes of action separately.




                                    5
                                    II

     We first turn to the claims on which the district court

granted summary judgment.      “We review the district court’s order

granting summary judgment de novo, viewing the facts in the light

most favorable to, and drawing all reasonable inferences in favor

of, the nonmoving party.”       Garofolo v. Donald B. Heslep Assocs.,

Inc., 405 F.3d 194, 198 (4th Cir. 2005).              Summary judgment is

appropriate   “if    the     pleadings,       depositions,    answers    to

interrogatories,    and    admissions    on   file,   together   with   the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”      Fed. R. Civ. P. 56(c).      The relevant inquiry

in a summary judgment analysis is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

     In Counts III-V of its Complaint, FACS alleged that General

Dynamics committed fraud and tortious interference by deciding to

suspend work permanently on its contracts with FACS while falsely

informing FACS that its suspension was merely temporary. Acting on

this representation, FACS maintains that it passed up opportunities

to work with other companies from September 2000 to April 2001.

FACS contends that the district court erred in granting summary

judgment in favor of General Dynamics on this claim.


                                    6
      Under Maryland law, “fraud and injury must be connected and

must bear to each other the relation of cause and effect.”        Empire

Realty Co., Inc. v. Fleisher, 305 A.2d 144, 148 (Md. 1973).1             In

other words, FACS must demonstrate that it “sustained damage by

reason of the fraud, and that [its] injury was the natural and

proximate consequence of [its] reliance on the fraudulent act.”

Id. at 147.     We conclude that FACS failed to meet this standard.

Specifically, FACS failed to adduce any evidence indicating that

there were other business opportunities available to it which it

declined      based   on   General       Dynamics’    allegedly       false

representations. While FACS opined that Raytheon was interested in

a   strategic   partnership,   a   Raytheon   executive   testified    that

Raytheon itself decided not to invest in FACS and that General

Dynamics’ actions had no bearing on its decision.           Because FACS

failed to offer evidence in support of this essential element of

its fraud and tortious interference claims, the district court

properly granted summary judgment in favor of General Dynamics.2




      1
       Maryland law governs in this diversity action.
      2
      FACS additionally claims that General Dynamics issued false
invoices demanding payment of large sums and that these invoices
helped force FACS’ parent corporation into bankruptcy while warding
off other potential strategic partners.      However, the evidence
overwhelmingly establishes that the invoices played no role in
forcing FACS’ parent into bankruptcy.       Furthermore, FACS has
presented no credible evidence of potential strategic partners who
were deterred due to the invoices.

                                     7
       In Counts VI-VIII, FACS alleged that James Finley represented

that he had authority to execute certain contracts with FACS and

that it relied on his representations in signing the contracts.

Because Finley actually lacked authority to bind General Dynamics

to these contracts, FACS alleged that it had relied on Finley’s

misrepresentations to its detriment.

       Once again, FACS’ argument founders because it cannot show

that       it   suffered   any   harm   as    a   result   of   Finley’s   false

representations.       While General Dynamics notes that Finley lacked

actual authority to enter into the cost incentives provisions of

several of the contracts, it admits that Finley had apparent

authority to execute the contracts.               Therefore, General Dynamics

was bound by the contracts pursuant to Finley’s apparent authority

to act as its agent.          Because General Dynamics was bound by the

contracts, FACS suffered no harm as a result of Finley’s false

representations.           The district court properly granted General

Dynamics’ motion for summary judgment on these claims.3



                                        III

       We next turn to the crux of this litigation: FACS’ claims that

General Dynamics breached the SEPA, the C&DH Contract, the First

Amended SEPA, the First Amended SPA, and the SEI/GS Contract.                The



       3
      We have examined the additional arguments which FACS makes,
and we reject them.

                                         8
jury found that General Dynamics had, indeed, breached the SEPA and

the C&DH Contract but that these breaches were “excused by [FACS’]

alleged nonperformance, or that the breach[es] [were] otherwise

justified[.]”      J.A. 1102.4 Next, the jury found that General

Dynamics committed an unjustified breach of the First Amended SEPA

and First Amended SPA and awarded $21.87 million in compensatory

damages   for   each   breach   and   a   total   of   $92.75   million   in

consequential damages. The district court upheld the verdict as to

compensatory damages but reduced the amount of those damages to

$19.87 million and struck one compensatory award as duplicative.

The district court overturned the jury’s verdict on consequential

damages, striking that award in its entirety.           Finally, the jury

found General Dynamics liable for an unjustified breach of the

SEI/GS Contract and awarded $23.28 million in compensatory damages.

The district court subsequently granted General Dynamics’ motion

for judgment as a matter of law as to this claim.         Both parties now

appeal.

     We review de novo the grant or denial of a motion for judgment

as a matter of law.     Anderson v. Russell, 247 F.3d 125, 129 (4th

Cir. 2001).     Judgment as a matter of law is proper when the court

determines that there is no “legally sufficient evidentiary basis”

for a reasonable jury to find for the non-moving party.            Fed. R.



     4
      FACS does not contest the jury’s findings with regard to the
SEPA and C&DH Contract.

                                      9
Civ. P. 50(a).   When a jury verdict has been returned, judgment as

a matter of law may be granted only if, viewing the evidence in a

light most favorable to the non-moving party (and in support of the

jury’s verdict) and drawing every legitimate inference in that

party’s favor, the only conclusion a reasonable jury could have

reached is one in favor of the moving party.    Figg v. Schroeder,

312 F.3d 625, 635 (4th Cir. 2002).

                                 A.

     We first address FACS’ claims for breach of the First Amended

SEPA and First Amended SPA.   FACS contends that the district court

erred by (1) overturning the jury’s consequential damage award (2)

requiring the jury to choose between consequential and reliance

damages instead of giving FACS the option of electing a remedy

after verdict.5 General Dynamics cross-appeals, asserting that the

district court should have granted its motion for judgment as a

matter of law as to the First Amended SEPA and First Amended SPA

claims in its entirety.

     In support of its cross-appeal, General Dynamics argues that

the First Amended SEPA and First Amended SPA are interdependent

with the SEPA, the SPA, and, indeed, the construction contracts.

Thus, according to General Dynamics, FACS’ prior breach of its

obligations under the SEPA and the C&DH Contract excused General


     5
      FACS does not appeal from the reduction of its compensatory
award to $19.87 million or from the striking of one award as
duplicative.

                                 10
Dynamics from performance of its obligations under the remaining

contracts.

     Under Maryland law, contracts are interdependent where they

“clearly indicate[] that as between the immediate parties they were

intended to constitute an entire and not a divisible undertaking

[and where i]t was the evident purpose to make the two agreements

interdependent[.]”        Guar. Sec. Co. v. Equitable Trust Co., 110 A.

860, 861 (Md. 1920).           Further, one contract may be incorporated

into another by reference, making it “a part thereof, as if it were

fully set forth therein.”          Goodwin & Boone v. Choice Hotels Int’l,

Inc., 695 A.2d 168, 171 (Md. 1997).               Of course, our examination of

interdependency         begins,    as      with     any     issue    of   contract

interpretation, with the language of the contracts before us, and

we must “giv[e] effect to all of their provisions, if it is

possible to do so.”            Rothman v. Silver, 226 A.2d 308, 310 (Md.

1967).       If   our    examination        shows    that     the   contracts   are

“susceptible       of      a      clear,        unambiguous,        and   definite

understanding[,]” their construction is for us to determine as a

matter of law.     Id.

     We begin with the SEPA, which is the overarching contract

governing the parties’ relationship.                The SEPA refers extensively

to both the C&DH Contract and the SPA, and the C&DH Contract is, in

fact, attached to the SEPA as an exhibit.                   In addition, the SEPA

states that it “shall remain in full force and effect until the


                                           11
termination or expiration of the C&DH Contract.”   J.A. 1414.   More

importantly, the SEPA provides that “This Agreement, the C&DH

Contract, the Stock Purchase Agreement, and the Non-Disclosure

Agreement constitute the entire agreement between the Parties

concerning the subject matter hereof[.]”     J.A. 1419.   Thus, the

plain language of the SEPA indicates that it, the D&DH Contract,

and the SPA must be considered interdependent.

     It naturally follows that the First Amended SEPA and First

Amended SPA must also be considered interdependent with the SEPA,

the SPA, and the C&DH Contract.   Although executed at a later time,

these contracts simply amend the SEPA and the SPA, respectively.

Moreover, they expressly refer to the SEPA and SPA, respectively,

by stating that those original contracts remain in full force and

effect.   J.A. 1412, 1428.    Accordingly, we conclude that these

contracts are a part of the same interdependent transaction as the

original contracts that they modify.

     Having addressed interdependency, we turn to the question of

breach.   It is well established that a material breach by one party

to a contract excuses the other party from performance.      Rogers

Refrigeration Co., Inc. v. Pulliam’s Garage, Inc., 505 A.2d 878,

883 (Md. App. 1986); Fromm Sales Co., Inc. v. Troy Sunshade Co.,

159 A.2d 860, 863 (Md. 1960).     Here, the jury found that General

Dynamics’ non-performance under the SEPA and the C&DH Contract was

excused, a finding premised on FACS’ prior material breach of those


                                  12
contracts.6    However, because the First Amended SEPA and the First

Amended SPA are interdependent with the SEPA and the C&DH Contract,

FACS’ prior breach also excused General Dynamics from performance

under each of these contracts.        With General Dynamics’ obligations

under the First Amended SEPA and First Amended SPA excused, the

jury’s finding of an unjustified breach of these contracts, and its

damage awards therefor, cannot stand.          The district court should

have granted General Dynamics’ motion for judgment as a matter of

law on this basis.

     Because we conclude that General Dynamics cannot be liable for

breach   of   the   First   Amended   SEPA   and   First   Amended   SPA,   we

necessarily conclude that FACS cannot prevail on its claim that the

district court erred in striking the jury’s consequential damage

award.   We likewise need not consider whether the district court

erred in forcing the jury to choose between consequential and

reliance damages.

                                      B.

     FACS next appeals from the district court’s entry of judgment

as a matter of law on its claim for breach of the SEI/GS Contract,



     6
      This premise is reenforced by the jury’s express finding
that FACS materially breached the SEPA and C&DH Contract as
expressed in its verdict in favor of General Dynamics on its
counterclaim. See infra. On that claim, General Dynamics alleged,
and the jury found, that FACS committed a breach by failing to pay
invoices issued under the C&DH Contract.       A failure to make
payments due under a contract “indisputably constitutes a material
breach[.]” Fromm Sales, 159 A.2d at 863.

                                      13
for which the jury awarded FACS $23.28 million in compensatory

damages.    At trial, FACS contended that General Dynamics breached

both the Correction of Deficiencies and the Launch Delay provisions

of the contract.      In overturning the jury’s verdict, the district

court found that these provisions “are simply inapplicable to this

case [because] . . . there simply was no fact pattern that fit

either the correction of deficiencies claim or the launch delay.”

J.A. 1116.       Further, the court noted that “the plain language [of

the provisions] refers to scenarios that simply did not apply

here.”     Id.    The district court based these findings on the fact

that construction under the contract never progressed to the point

where the two provisions could have been triggered.

     We have reviewed the record of the evidence presented at

trial, and we agree with the district court’s stated analysis.

Accordingly, we affirm the grant of General Dynamics’ motion for

judgment as a matter of law on FACS’ claim for breach of the SEI/GS

Contract.

                                    IV

     Finally, we consider FACS’ appeal from the jury’s verdict on

General Dynamics’ counterclaims.

     On the first counterclaim, the jury awarded General Dynamics

$3 million for FACS’ nonpayment of an invoice issued under the C&DH

Contract.    This invoice was payable on January 9, 2000.    Evidence

presented at trial indicated that, around January 9, FACS informed


                                    14
General Dynamics that it lacked money to pay the invoice but that

it would be able to do so after the high-yield bond offering

occurred in August or September of 2000.       FACS now contends that

this meant that the payment of the invoice was contingent on the

bond offering occurring.     We find FACS’ argument unpersuasive.

     The evidence at trial established that the sole reason General

Dynamics delayed FACS’ payment of the $3 million owed it was FACS’

inability to pay.    Maryland law provides that:

     [W]hen a promise is such as to constitute absolute
     liability, and the parties agree that the debt shall be
     paid upon the happening of a future event chosen merely
     as a convenient time for payment, and the event does not
     happen as contemplated, the law implies a promise to pay
     within a reasonable time.

Ewell v. Landing, 85 A.2d 475, 477 (Md. 1952).           Thus, as the

district court noted, the jury certainly could have found “not that

the high-yield bond offering was a contingency, but [that] it was

merely the time when the money was due and payable, that it was an

accommodation to the plaintiff[.]” J.A. 1124-25. We agree, and we

affirm the denial of FACS’ motion for judgment as a matter of law

on this claim.

     General     Dynamics’   second    counterclaim   arises   from   a

subcontract it entered into with Raytheon.     In a contract executed

in March, 2000, General Dynamics subcontracted with Raytheon to

build ground stations for the satellites it was constructing for

FACS.   In this contract, Raytheon agreed to invest $5 million in

FACS and an additional $10 million after the high-yield bond

                                  15
offering.      General     Dynamics      guaranteed   Raytheon’s     $5    million

investment and, in an Agreement & Waiver (“A&W”), FACS agreed to

indemnify General Dynamics if Raytheon invoked the $5 million

guarantee.

      After the bond offering failed, Raytheon insisted that General

Dynamics pay it $5 million to satisfy its guarantee, and General

Dynamics complied.         General Dynamics, in turn, required FACS to

honor its obligation under the A&W, but FACS never did.                   The jury

found FACS liable for breach of the A&W and awarded General

Dynamics $5 million.

      FACS maintains that its obligation to pay General Dynamics was

excused because of General Dynamics’ earlier breach of the Amended

SEPA and SEI/GS contract.         However, as we have noted, any breach by

General Dynamics of these contracts is excused due to FACS’ prior

breach.      Further,      the     A&W   is    not,   as    a   matter    of   law,

interdependent with the Amended SEPA and SEI/GS contracts. Rather,

it   was   executed   as   a     separate     transaction   when   Raytheon     was

subcontracted by General Dynamics.             Therefore, the district court

correctly upheld the jury’s verdict of $5 million.



                                          V

      Based on the foregoing, we reverse the district court’s

partial denial of General Dynamics’ motion for judgment as a matter

of law on FACS’ claims for breach of the First Amended SEPA and


                                         16
First Amended SPA but affirm the judgments entered below in all

other respects.

                                              AFFIRMED IN PART;
                                               REVERSED IN PART




                              17
