UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN T. CISNE, 

Plaintiff-Appellant,

v.  No. 01-1255 GENERAL ELECTRIC CAPITAL

CORPORATION, a New York

corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CA-99-210-MU)

Argued: December 4, 2001

Decided: January 14, 2002

Before WIDENER and LUTTIG, Circuit Judges, and

Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Victor Steven Valenti, BENDURE & THOMAS, Detroit,

Michigan, for Appellant. Tracy Thomas Cottingham, III, HUNTON

& WILLIAMS, Charlotte, North Carolina, for Appellee. ON BRIEF:

Nash E. Long, III, HUNTON & WILLIAMS, Charlotte, North Caro-
lina; Michael R. Shebelskie, HUNTON & WILLIAMS, Richmond,

Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

John T. Cisne brought suit against General Electric Capital Corporation claiming commissions under an alleged express oral contract

and under the procuring cause doctrine. The district court granted

summary judgment in favor of General Electric Capital Corporation,

and Cisne now appeals that decision. For the reasons that follow, we

affirm. 

I.

In the spring of 1992, the Automotive Development Group

("ADG") signed an independent contractor agreement with General

Electric Capital Corporation ("GE"). GE pays a commission to independent contractors, or representatives, who sell and service GE’s

vehicle service program to car dealers. Consumers purchase GE vehicle service contracts to cover the cost of vehicle repairs and to extend

or supplement manufacturers’ warranties. 

After signing the agreement with GE, ADG hired John Cisne to

market the program on ADG’s behalf. Under the GE-ADG agreement, Cisne was considered a sub-representative, and received a salary from ADG. The agreement stated explicitly that GE would have

no obligation to pay compensation to any sub-representatives. In late

spring and early summer 1992, Cisne met with Hendrick Automotive

president and CEO Rick Hendrick and with Crown Motors vice president Leonard Myers. His goal was to sell Hendrick and Crown on the

GE program, but he was unsuccessful. In fact, ADG signed only one

2 CISNE v. GENERAL ELECTRIC CAPITAL CORP.
dealer — a used car dealer which never sold a service contract. GE

was disappointed with ADG’s performance and by August, was making plans to terminate ADG. 

After learning of ADG’s pending termination, Cisne contacted

Mike Lawrence, GE’s regional manager, to discuss the possibility of

becoming a special representative. He spoke with Lawrence four

times, including one in-person meeting. The pair allegedly discussed

leads and strategized about closing deals. They talked about a $15 per

vehicle commission on the Hendrick account but did not agree on

contract terms. Lawrence says Cisne understood that GE management

would have to approve Cisne because Lawrence was just a field

employee who had authority only to recruit and not to sign special

representatives. Cisne also signed a copy of the special representative

agreement for Lawrence to turn in to his bosses. 

Over the next weeks, Cisne continued to call Lawrence about the

status of his application. He sent GE his resume. He continued to contact dealers. He did not, however, undertake any startup activities: he

did not take a business loan, rent an office, or open a business banking account. GE eventually rejected Cisne’s application, viewing him

as part of ADG’s failure to sign any dealers. 

In 1993, months after ADG’s termination, Hendrick and Crown

both signed contracts with GE and began selling vehicle service contracts to consumers. Cisne now asserts that he is entitled to commissions for these contracts. 

Cisne filed suit in the United States District Court for the Eastern

District of Michigan in November 1998. The case was transferred to

the Western District of North Carolina in May 1999. On January 18,

2001, the district court issued an order granting GE’s motion for summary judgment. Cisne now appeals that order. 

II.

We review a district court’s decision to grant summary judgment

de novo. Marshall v. Cuomo, 192 F.3d 473, 478 (4th Cir. 1999). Once

a defendant makes a properly supported motion for summary judgCISNE v. GENERAL ELECTRIC CAPITAL CORP. 3
ment, the burden shifts to the plaintiff to set forth specific facts showing that there is a genuine issue for trial. Sylvia Dev. Corp. v. Calvert

County, 48 F.3d 810, 817 (4th Cir. 1995). Summary judgment is justified if the court is satisfied that there is no genuine issue of material

fact for trial and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). 

In reviewing a motion for summary judgment, the court must draw

any permissible inference from the underlying facts in the light most

favorable to the party opposing the motion. Sylvia Dev. Corp., 48

F.3d at 817. The court need consider only reasonable inferences. Id.

at 818. To defeat summary judgment, the non-moving party must

present sufficient evidence such that reasonable jurors could find by

a preponderance of the evidence for the non-movant. Id. 

III.

This case was originally filed in district court in Michigan and then

transferred. Therefore, Michigan choice of law rules apply. 28 U.S.C.

§ 1404(a). In contract disputes, Michigan choice of law rules emphasize the law of the place having the materially greater interest in the

matter in dispute. See Chrysler Corp. v. Skyline Indus. Serv., Inc., 528

N.W.2d 698, 704 (Mich. 1995). Here, Cisne alleges he negotiated the

oral contract with GE in North Carolina with performance in North

and South Carolina. Michigan’s only connection to the alleged transaction is Cisne’s Michigan citizenship. The court finds that North

Carolina law applies. 

A. Oral Contract

We turn first to Cisne’s claims that he is owed commissions under

an oral contract. There is no factual or legal support for this claim. 

An oral contract can be binding if its terms are sufficiently definite

and certain to render the contract enforceable. See Williams v. Jones,

366 S.E.2d 433, 438 (N.C. 1988). There is no contract, whether oral

or written, unless the parties have a meeting of the minds and mutually assent "to the same thing, in the same sense." Horton v. Humble

Oil & Ref. Co., 122 S.E.2d 716, 719 (N.C. 1961) (quoting Elks v.

North State Ins. Co., 75 S.E. 801 (N.C. 1912)). 

4 CISNE v. GENERAL ELECTRIC CAPITAL CORP.
Cisne can point to no evidence that there was a meeting of the

minds, except his recollection of the preliminary conversation with

Lawrence. Lawrence testified that he told Cisne that there would be

an agreement only if there was a signed agreement: "I think everyone

understood, too, that on these special rep agreements — I mean, I

wasn’t the signer. I was the grunt, the field grunt, and went out and

tried to find people that could bring the package to the table[.]" 

Cisne’s affidavit indicates that he and Lawrence discussed only

potential terms of the agreement: 

[Lawrence] also asked me at this October 15, 1992 meeting

how much I would be satisfied with for the Hendrick deal.

I indicated that I would accept $15.00 for each vehicle service contract sold by the Hendrick dealers in view of the

anticipated large volume of sales. Lawrence said, that’s fair.

Negotiations or proposals alone, however, do not constitute an

offer. Yeager v. Dobbins, 114 S.E.2d 820, 823 (N.C. 1960); Seawell

v. Continental Cas. Co., 352 S.E.2d 263, 264 (N.C. Ct. App. 1987).

"An offer must be definite and complete, and a mere proposal

intended to open negotiations which contains no definite terms but

refers to contingencies to be worked out cannot constitute the basis

of a contract, even though accepted." Seawell, 352 S.E.2d at 264.

Thus, viewing the evidence in the light most favorable to the plaintiff,

Cisne’s October 15 conversation with Lawrence appears to be nothing

more than a discussion regarding possible contract terms. Cisne cannot demonstrate that there was a meeting of the minds, or the existence of specific and definite terms sufficient to constitute a contract.

The district court did not err in finding as a matter of law that no oral

contract existed. 

B. Procuring Cause Doctrine

We turn next to Cisne’s argument that he is owed commissions

under the procuring cause doctrine. This doctrine guarantees that brokers who secure sales will receive commissions. The broker will

receive a commission if any act in pursuance of his authority to find

a purchaser is the initiating act which is the procuring cause of the

ultimate sale. S & W Realty & Bonded Comm’l Agency, Inc. v. DuckCISNE v. GENERAL ELECTRIC CAPITAL CORP. 5
worth & Shelton, Inc., 162 S.E.2d 486, 491 (N.C. 1968); Brown v.

Fulford, 316 S.E.2d 220, 223 (N.C. 1984). The broker is the procuring cause if the sale is the direct and proximate result of his efforts

or services. Id. "Procuring cause" refers to a cause that originates or

sets in motion a series of events which, without break in their continuity, results in the prime objective of the broker. Id. 

The GE-ADG agreement specifically provided that any subrepresentatives hired by ADG did not have a contract with GE. There

is no privity between principals and sub-agents hired by agents to

assist them. Colony Assoc. v. Fred L. Clapp & Co., 300 S.E.2d 37,

40 (N.C. Ct. App. 1983). Furthermore, an agent cannot maintain an

action in his name for the benefit of the principal. Goodrich v. Rice,

331 S.E.2d 195, 199 (N.C. Ct. App. 1985). Thus if Cisne had

attempted to secure dealerships while working for ADG, only ADG

and not Cisne could maintain an action against GE for commissions

due. 

Cisne provided no evidence establishing that his actions caused

Hendrick and Crown to sign. Rick Hendrick testified at his deposition

that after an initial meeting with Cisne, he would have turned Cisne

over to others at Hendrick. The testimony of these other Hendrick

employees — Varge Hampton, William Musgrave, James Huzl and

Gary Davis — does not support Cisne’s claims of importance in making the deal. Hampton does not know Cisne or remember Cisne making any presentations to him regarding GE service contracts.

Musgrave said he had no specific recollection of ever having contact

with Cisne. Huzl said he had met Cisne only once and did not remember Cisne making any sales presentations to him. Davis said he had

met Cisne only once and could not remember receiving any solicitations from him. 

At Crown, Royce Reynolds made final executive decisions, including the decision to enroll in the GE program. He stated in his affidavit

that he did not recall ever meeting Cisne, could not testify as to "aggressive solicitation efforts" by Cisne, and that to the best of his recollection, Cisne "was not the person responsible for the decision of the

Crown dealerships to enter into a contract with GE to sell GE Vehicle

Service Contracts." Leonard Myers testified that it was another ADG

employee, and not Cisne, who initially introduced him to GE. Finally,

6 CISNE v. GENERAL ELECTRIC CAPITAL CORP.
Cisne overlooks the fact that at that time, he was still a subrepresentative of ADG. 

Cisne has not shown that an oral contract existed, or that he was

the procuring cause of the Hendrick and Crown accounts. For those

reasons, the decision of the district court is affirmed.

AFFIRMED

CISNE v. GENERAL ELECTRIC CAPITAL CORP. 7