IN THE SUPREME COURT OF NORTH CAROLINA

No.160A19

Filed 28 February 2020

VIZANT TECHNOLOGIES, LLC

v.

YRC WORLDWIDE, INC.

Appeal pursuant to N.C.G.S. § 7A-27(a)(3) from an order and opinion on 

defendant’s cross-motion for summary judgment entered on 15 November 2018 by 

Judge Louis A. Bledsoe III, Chief Special Superior Court Judge for Complex 

Business Cases, in Superior Court, Mecklenburg County, after the case was 

designated a complex business case by the Chief Justice pursuant to Rule 2.1 of the 

General Rules of Practice for the Superior and District Courts. Heard in the 

Supreme Court on 22 November 2019 in session in the Johnston County Courthouse 

in the City of Smithfield pursuant to section 18B.8 of Chapter 57 of the 2017 North 

Carolina Session Laws.

Lincoln Derr PLLC, by Sara R. Lincoln, for plaintiff-appellant.

Strauch Green & Mistretta, P.C., by Jack M. Strauch and Jessie C. Fontenot 

Jr., for defendant-appellee.

PER CURIAM.

AFFIRMED.
STATE OF NORTH CAROLINA

MECKLENBURG COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

15 CVS 20654

VIZANT TECHNOLOGIES, LLC,

Plaintiff,

v.

YRC WORLDWIDE INC.,

Defendant.

FURTHER ORDER AND OPINION ON 

DEFENDANT YRC WORLDWIDE 

INC.’S CROSS MOTION FOR 

SUMMARY JUDGMENT1

1. THIS MATTER is before the Court upon Defendant YRC Worldwide Inc.’s

(“YRC”) Cross Motion for Summary Judgment (the “Summary Judgment Motion”) in 

the above-captioned case.

2. Having considered the Summary Judgment Motion, the original briefs in 

support of and in opposition to the motion, the arguments of counsel at the May 23, 

2018 hearing on the motion, the supplemental briefs submitted by the parties in 

support of and in opposition to the motion, and other appropriate matters of record,

the Court hereby concludes that YRC’s Summary Judgment Motion should be 

GRANTED in part and DENIED in part as set forth herein.

1

 Recognizing that this Order and Opinion cites and discusses the subject matter of 

documents that the Court has previously allowed to remain filed under seal in this case, the 

Court elected to file this Further Order and Opinion on Defendant YRC Worldwide Inc.’s 

Cross Motion for Summary Judgment under seal on November 15, 2018. The Court 

permitted the parties an opportunity to advise whether the Order and Opinion contained 

confidential information that either side contended should be redacted from a public version 

of this document. On November 15, 2018, both Plaintiff and Defendant advised the Court 

that no redactions are necessary. Accordingly, the Court removes the “filed under seal” 

designation and files this Order and Opinion, without redactions, as a matter of public record.
Lincoln Derr PLLC, by Sara R. Lincoln and Kevin L. Pratt, for Plaintiff 

Vizant Technologies, LLC.

Strauch Green & Mistretta, P.C., by Jack M. Strauch and Jessie Charles 

Fontenot, for Defendant YRC Worldwide Inc.

Bledsoe, Chief Judge.

I.

BACKGROUND

3. The Court has previously discussed the factual and procedural history of 

this action in its June 26, 2018 Order and Opinion, as reported at Vizant 

Technologies, LLC v. YRC Worldwide Inc., 2018 NCBC LEXIS 65 (N.C. Super. Ct. 

June 26, 2018). Consequently, this Order and Opinion revisits only those facts that 

are relevant to the Court’s decision herein. The details recited are not findings of fact 

but a summary “of material facts which . . . are not at issue[.]” Hyde Ins. Agency, Inc. 

v. Dixie Leasing Corp., 26 N.C. App. 138, 142, 215 S.E.2d 162, 165 (1975).

A. Factual Summary

4. This action arises out of an alleged breach of a Professional Services 

Agreement (the “PSA”) between Plaintiff Vizant Technologies, LLC (“Vizant”) and 

YRC. (See Pl.’s Mem. L. Supp. Mot. Summ. J. Ex. 2, at 5 [hereinafter “PSA”], ECF 

No. 84.3.)

5. YRC—the parent entity of several freight companies that operate 

throughout North America—has a large number of customers who pay for shipping 

services by credit card. (Def.’s Br. Supp. Mot. Summ. J. 3, ECF No. 88.) When one of 

its customers pays using a credit card, YRC pays a credit card processing fee. (Def.’s 
Br. Supp. Mot. Summ. J. 3.) YRC incurs substantial costs in credit card fees each 

year due to the number of customers that it serves and the number of orders that it 

fills. (Def.’s Br. Supp. Mot. Summ. J. 3.) At all times relevant to this lawsuit, YRC 

has sought to reduce these costs. (Whitsel Dep. 29:8–23, ECF No. 96.)

6. Vizant holds itself out as a consultant that can help clients reduce costs 

associated with financial payments. (See Br. Supp. Def.’s Mot. Summ. J. Ex. X, ECF 

No. 133.) Vizant approached YRC in mid-2014 to offer its services, and after a series 

of negotiations, the two entities executed the PSA. (PSA 5.) By the terms of the PSA, 

Vizant agreed to “perform an evaluation, assessment and customized analytical 

review” of the “Financial Payments” YRC received and “identify, indicate and 

quantify specific and actionable strategies and solutions” that would reduce YRC’s 

costs associated with those payments. (PSA § 2.) In return, YRC agreed to pay Vizant 

a percentage of YRC’s savings resulting from the strategies and solutions identified 

by Vizant. (PSA § 10.) 

7. Under the terms of the PSA, Vizant’s fee was calculated by comparing YRC’s 

“Pre-Agreement Financial Payment Costs” with YRC’s “Post-Agreement Financial 

Payment Costs.” (PSA § 8.) If the post-agreement costs were less than the preagreement costs, YRC would pay Vizant a percentage of the difference. (PSA § 8.) 

The PSA defined “Post-Agreement Financial Payment Costs” as the Financial 

Payment Costs YRC incurred “as a result of the strategies and solutions that [were] 

identified and recommended by Vizant in performance of its professional services[.]” 

(PSA § 6.)
8. On July 9, 2015, after completing an initial assessment of YRC, Vizant 

personnel attempted to present an in-person report on Vizant’s initial 

recommendations to YRC management. Vizant Techs., LLC, 2018 NCBC LEXIS 65, 

at *6. Two of these recommendations included charging an account management fee 

for credit card transactions and convincing customers to switch from paying by credit 

card to paying by Automated Clearing House (“ACH”) batch payments. Id. at *6, *23. 

9. Minutes into the presentation, YRC’s management stopped Vizant’s 

employees and reminded them that YRC was already considering some of the 

proposed measures for lowering credit card costs. (Lopez Aff. ¶ 7, ECF No. 101.) 

When YRC asked if Vizant believed it was entitled to a fee for savings resulting from 

these measures, one of Vizant’s representatives responded, “Yes.” (Wilson Dep. 83:5–

16, ECF No. 95; Lopez Aff. ¶ 7.) YRC then ended the meeting. (Wilson Dep. 271:11–

16.) Soon thereafter, Vizant sent hard-copy and electronic versions of its Report to 

YRC. (Christiansen Dep. 30:1–31:25, ECF No. 122.) YRC sent Vizant a written notice 

of termination two months later. (Pl.’s Mem. L. Supp. Mot. Summ. J. Ex. 28, at 1, 

ECF No. 84.29.)

B. Procedural History

10. Vizant seeks declaratory and injunctive relief against YRC as well as 

damages for breach of the PSA. As part of its claimed damages, Vizant contends that 

it is owed outstanding fees for savings that YRC allegedly realized through successful 

efforts to convince customers to pay using ACH rather than credit cards (Vizant’s 

“ACH Damages”). Vizant Techs., LLC, 2018 NCBC LEXIS 65, at *23.
11. On January 18, 2018, Vizant filed a motion for summary judgment. On 

January 19, 2018, YRC filed its cross motion for summary judgment, requesting that 

the Court grant summary judgment “as to [P]laintiff’s claims for breach of contract.” 

(Def.’s Mot. Summ. J. 1, ECF No. 87.) In briefing and at oral argument, each side 

presented the Court with its proposed interpretation of the PSA’s provisions, each 

contending that its respective interpretation required summary judgment in its favor.

12. Vizant contended that the PSA requires YRC to pay a fee to Vizant because 

YRC has realized savings as a result of the strategies and solutions identified in 

Vizant’s report. Vizant Techs., LLC, 2018 NCBC LEXIS 65, at *9. Under Vizant’s 

reading of the PSA, it does not matter whether Vizant’s services actually caused YRC 

to implement cost-saving measures or whether YRC implemented those measures of 

its own accord—if Vizant identified one of the solutions that proved beneficial to YRC, 

Vizant argues it is owed a fee. Id.

13. YRC, on the other hand, asserted that the PSA only requires YRC to pay 

Vizant if Vizant’s suggestions actually caused YRC to change business practices and 

realize savings. Id. at *10. YRC denied that it implemented any strategies based on

the information in Vizant’s report or presentation and thus argued that it does not 

owe Vizant any fee. Id. 

14. YRC also argued that Vizant was unable to provide sufficient evidence to 

support its claim for ACH damages. (Def.’s Br. Supp. Mot. Summ. J. 32–33.) In 

particular, YRC attacked the opinions offered by one of Vizant’s experts, Scott 

Emmanuel (“Emmanuel”), who calculated Vizant’s claimed damages. Vizant Techs., 
LLC, 2018 NCBC LEXIS 65, at *23. By way of a post-discovery motion to strike, YRC 

asked the Court to strike Emmanuel’s opinions on Vizant’s claimed ACH Damages, 

contending that those opinions were speculative and unreliable. Id. In connection 

with its Summary Judgment Motion, YRC argued that Vizant’s failure to put forward 

reliable evidence of ACH Damages required an entry of “judgment, as a matter of law, 

in YRC’s favor.” (Def.’s Br. Supp. Mot. Summ. J. 33.)

15. In an Opinion dated June 26, 2018, the Court made several conclusions as 

to the parties’ summary judgment motions. First, the Court concluded that a genuine 

issue of material fact remained as to the interpretation of the PSA’s fees provision 

that precluded the Court from entering summary judgment on that issue. Vizant 

Techs., LLC, 2018 NCBC LEXIS 65, at *18. Second, the Court concluded that even if 

YRC’s interpretation of the PSA was required as a matter of law, Vizant had 

presented circumstantial evidence sufficient to create a question of fact as to whether 

YRC implemented the strategies found in Vizant’s report, i.e., evidence of a sharper

decline in credit card payments in the year following Vizant’s report which might 

support Vizant’s contention that YRC used the suggestions in the report. Id. at *19. 

Third, the Court concluded that questions of fact remained as to YRC’s obligations to 

provide Vizant with certain financial data under the PSA. Id. at *21–22. In 

connection with YRC’s motion to strike, the Court also concluded that Emmanuel’s 

opinions were speculative and unreliable. Id. at *30. The Court then denied both

sides’ summary judgment motions and struck Emmanuel’s opinions as to Vizant’s 

ACH Damages. Id. at *30–31. The Court did not address YRC’s argument that 
summary judgment should be granted in its favor due to Vizant’s inability to present 

reliable evidence of ACH Damages and made no conclusions as to the sufficiency of

Vizant’s evidence concerning those damages.

16. On August 6, 2018, YRC filed a motion under Rule 54(b) of the North 

Carolina Rules of Civil Procedure asking the Court to reconsider its June 26 Opinion. 

YRC asserted that the Court did not consider YRC’s request for partial summary 

judgment as to ACH Damages and argued that the Court’s decision to strike 

Emmanuel’s opinions as to ACH Damages and Vizant’s failure to offer other reliable 

evidence of such damages required that summary judgment be entered in YRC’s favor 

as to that aspect of Vizant’s claim. 

17. Vizant argued against further consideration of its claimed ACH Damages at 

summary judgment. Both sides submitted briefs on YRC’s motion for 

reconsideration, and the Court held a hearing on the matter on August 30, 2018.

18. On September 6, 2018, the Court entered an order on YRC’s motion for 

reconsideration. The Court concluded that it was “clear that the issue of summary 

judgment as to Vizant’s ACH Damages was properly raised and before the Court” at 

summary judgment and that “the Court did not address the sufficiency of Vizant’s 

evidence as to the ACH Damages portion of Vizant’s breach of contract claim or 

expressly consider YRC’s request for summary judgment on that issue.” (Order Def.’s 

Mot. Reconsideration ¶ 9, ECF No. 205.) Consequently, the Court concluded that

YRC’s motion was not a motion for reconsideration but a request that the Court 
decide an issue raised under Rule 56 but left unaddressed by the Court’s prior 

decision. (Order Def.’s Mot. Reconsideration ¶ 9.) 

19. Further, to the extent the Court’s previous blanket denial of YRC’s 

Summary Judgment Motion “with regard to Plaintiff’s breach of contract claim,”

Vizant Techs., LLC, 2018 NCBC LEXIS 65, at *31, could be read as a ruling on YRC’s 

request for summary judgment on the ACH Damages issue, the Court noted that 

North Carolina case law clearly “indicates that a trial court judge has the authority 

to reconsider his or her own summary judgment ruling,” (Order Def.’s Mot. 

Reconsideration ¶ 10); Levin v. Jacobson, 2016 NCBC LEXIS 66, at *5 (N.C. Super. 

Ct. Aug. 25, 2016); see Miller v. Miller, 34 N.C. App. 209, 212, 237 S.E.2d 552, 555 

(1977) (“An order denying summary judgment is not res judicata and a judge is 

clearly within his rights in vacating such denial.”); see also Carr v. Great Lakes 

Carbon Corp., 49 N.C. App. 631, 635, 272 S.E.2d 374, 377 (1980) (“Miller presented 

the question whether a judge who rules on a motion for summary judgment may 

thereafter strike the order, rehear the motion for summary judgment, and allow the 

motion. Such procedure does not involve one judge overruling another, and is proper 

under Rule 60.”). The Court therefore vacated its previous denial of YRC’s Summary 

Judgment Motion to the extent the Court’s decision could be read as denying YRC’s 

request for summary judgment as to ACH Damages. (Order Def.’s Mot. 

Reconsideration ¶ 10.)

20. The Court allowed Vizant a period to supplement the record before the Court 

and provide additional briefing as to the sufficiency of Vizant’s ACH Damages at 
summary judgment. YRC was given an opportunity to respond to Vizant’s 

supplemental filings. The Court reserved its right to decide whether to hold a further 

hearing on YRC’s Summary Judgment Motion.

21. Vizant and YRC both submitted supplemental briefs and exhibits to the 

Court concerning Vizant’s ACH Damages. The issue is ripe for resolution, and the 

Court elects, under the discretion afforded to it by Rule 7.4 of the General Rules of 

Practice and Procedure for the North Carolina Business Court, to decide this matter 

without a hearing.

II.

LEGAL STANDARD

22. Under Rule 56 of the North Carolina Rules of Civil Procedure, summary 

judgment is appropriate where there is “no genuine issue as to any material fact 

and . . . any party is entitled to . . . judgment as a matter of law.” Craig v. New 

Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 353 (2009) (quoting 

N.C. R. Civ. P. 56(c)). A fact is material if it “would constitute or would irrevocably 

establish any material element of a claim or defense.” Abner Corp. v. City Roofing & 

Sheetmetal Co., 73 N.C. App. 470, 472, 326 S.E.2d 632, 633 (1985). “[A] genuine issue 

is one which can be maintained by substantial evidence.” Kessing v. Nat’l Mortg. 

Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). “Substantial evidence is such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion and means more than a scintilla or a permissible inference.” DeWitt v. 
Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (internal 

citations omitted).

23. “The party moving for summary judgment has the burden of showing that 

there is no triable issue of material fact.” Nicholson v. Am. Safety Util. Corp., 346 

N.C. 767, 774, 488 S.E.2d 240, 244 (1997). That burden may be met “by proving that 

an essential element of the opposing party’s claim is nonexistent, or by showing 

through discovery that the opposing party cannot produce evidence to support an 

essential element of his claim[.]” Collingwood v. Gen. Elec. Real Estate Equities, Inc., 

324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). If the moving party makes this required 

showing, “the burden shifts to the nonmoving party to produce a forecast of evidence 

demonstrating specific facts, as opposed to allegations, showing that he can at least 

establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784–85, 

534 S.E.2d 660, 664 (2000). All evidence is viewed in the light most favorable to the 

nonmoving party. DeWitt, 355 N.C. at 682, 565 S.E.2d at 146. 

III.

ANALYSIS

24. In light of the Court’s decision to strike Vizant’s expert’s opinions on ACH 

Damages, YRC contends that Vizant is unable to forecast evidence from which a 

factfinder could calculate Vizant’s ACH Damages with reasonable certainty. Because 

Vizant cannot produce evidence to support this element of its breach of contract claim, 

YRC argues that the Court should grant partial summary judgment in YRC’s favor 

on the issue of ACH Damages.
25. As a preliminary issue, the Court first addresses what choice of law applies 

to Vizant’s claim. As a general rule, North Carolina courts will give a contractual 

choice of law provision “effect unless the chosen state has no substantial connection to 

the transaction and there is no other reasonable basis for the parties’ choice, or

the law of the chosen state violates a fundamental public policy of North Carolina.” 

Recurrent Energy Dev. Holdings, LLC v. SunEnergy1, LLC, 2017 NCBC LEXIS 18, 

at *21–22 (N.C. Super. Ct. Mar. 7, 2017) (citing Cable Tel Servs., Inc. v. Overland 

Contracting, Inc., 154 N.C. App. 639, 642–43, 574 S.E.2d 31, 33–34 (2002)). The 

parties here have expressly agreed—and neither has since disputed—that Kansas 

law shall control “any controversy, dispute, or claim arising out of or related to” the 

PSA. (PSA § 19.) Thus, Kansas law governs Vizant’s breach of contract claim. See 

Bayer CropScience LP v. Chemtura Corp., 2012 NCBC LEXIS 43, at *16 (N.C. Super. 

Ct. July 13, 2012).

26. In Kansas, the elements of a breach of contract claim are “(1) the existence 

of a contract between the parties; (2) sufficient consideration to support the contract; 

(3) the plaintiff’s performance or willingness to perform in compliance with the 

contract; (4) the defendant’s breach of the contract; and (5) damages to the plaintiff 

caused by the breach.” Stechschulte v. Jennings, 298 P.3d 1083, 1098 (Kan. 2013). 

To satisfy the damages element of the claim, a party “must not only show the injury 

sustained, but must also show with reasonable certainty the amount of damage 

suffered as a result of the injury or breach.” Venable v. Imp. Volkswagen, Inc., 519 

P.2d 667, 674 (Kan. 1974). “A party is not entitled to recover damages not the 
proximate result of the breach of contract and those which are remote, contingent, 

and speculative in character.” State ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 

1228 (Kan. 2005) (internal quotation marks omitted). Consequently, the Supreme 

Court of Kansas has stated that “[i]n order for the evidence to be sufficient to warrant 

recovery of damages [for breach of contract] there must be some reasonable basis for 

computation which will enable the jury to arrive at an approximate estimate thereof.” 

Venable, 519 P.2d at 674.

27. Vizant presents three arguments in opposition to YRC’s request for partial

summary judgment. First, Vizant argues that it has presented sufficient evidence to

raise a genuine issue of material fact as to whether YRC implemented a strategy of

switching customers from credit card to ACH and achieved savings as a result of that

strategy. Second, Vizant argues that, even in the absence of expert testimony on the

subject, it has provided sufficient evidence from which a jury could arrive at an

approximate estimate of the claimed ACH Damages. Third, Vizant contends that, at

the very least, it has provided the best evidence it could under the circumstances and

that it should not be penalized for evidentiary deficiencies caused by YRC. The Court

will address YRC’s request for partial summary judgment by addressing each of these

counterarguments in turn.

A. Vizant’s Evidence that YRC Implemented Identified Strategies

28. Vizant’s first argument in its supplemental opposition brief effectively

revisits the Court’s previous decision. There, the Court determined that Vizant’s

forecast evidence, “[w]hile circumstantial,” created an issue of fact as to whether YRC
implemented the strategies identified in Vizant’s report and achieved savings as a

result. Vizant Techs., LLC, 2018 NCBC LEXIS 65, at *19. Thus, in contending that

it has presented enough evidence to raise a genuine issue of material fact as to

whether YRC encouraged customers to switch to ACH, Vizant argues an already

decided issue that YRC’s request for partial summary judgment does not seek to

revisit. 

29. Instead, YRC’s request for partial summary judgment challenges the

adequacy of the evidence Vizant has put forward to show the amount of ACH

Damages Vizant claims. The issue before the Court now is thus not whether Vizant

can prove savings were achieved, or even whether Vizant can prove how the savings

were achieved, but rather whether Vizant can sufficiently show the amount of savings

YRC achieved by convincing customers to switch to ACH. In short, the Court must

decide whether Vizant’s evidence provides a reasonable basis for a factfinder to arrive

at an approximation of Vizant’s ACH damages. See Venable, 519 P.2d at 674. The 

Court thus turns to address that issue.

B. Vizant’s Evidence of ACH Damages

30. As to its ACH Damages evidence, Vizant argues that “an issue of material 

fact remains as to whether YRC’s cost reductions must be causally linked to Vizant’s 

recommendations in order for Vizant to recoup its fee under the PSA.” (Pl.’s 

Supplemental Br. Opp’n YRC’s Mot. Summ. J. 11 [hereinafter “Pl.’s Supplemental 

Br.”], ECF No. 209.) “Thus,” Vizant continues, “all Vizant has to show is that it did 

not get paid under . . . the still-to-be-interpreted terms of the PSA to demonstrate 
damages for purposes of summary judgment.” (Pl.’s Supplemental Br. 11.) This 

assertion does not align with the Court’s previous ruling or the law applicable to 

Vizant’s claim.

1. The Required Causal Connection Between YRC’s ACH Savings and 

Vizant’s ACH Damages

31. In its June 26 Opinion, the Court held that an issue of fact remained as to 

whether Vizant’s right to a fee under the PSA was contingent upon Vizant’s report or

recommendations causing YRC to implement the alleged program of encouraging

customers to switch from credit card payments to ACH. See Vizant Techs., LLC, 2018 

NCBC LEXIS 65, at *18. In essence, the Court found the evidence in dispute as to

whether (i) the parties intended Vizant to recoup a fee for simply identifying and 

recommending strategies that led to savings, including strategies YRC decided to 

implement independently or had already implemented, or (ii) the parties intended 

Vizant to recoup a fee only in the event Vizant identified and recommended a new 

strategy to YRC and YRC ended up implementing that strategy because of Vizant’s 

recommendation. Id. at *17–18. The Court concluded that the PSA was ambiguous 

on this issue and that evidence in the record pointed to both interpretations being 

reasonable. Id. at *14–15, *17–18.

32. In either event, the Court also determined that the PSA required a causal 

connection between a strategy of convincing customers to switch to ACH and YRC’s 

savings that would be used to calculate Vizant’s fee. Id. at *26. The Court noted that 

Vizant’s fee was not meant to be based on any “broad, kitchen-sink savings realized 

after the execution of the PSA,” but only on those savings YRC achieved as the result 
of a strategy identified by Vizant. Id. Thus, Vizant may be entitled to a fee based on

savings resulting from customers switching from credit card to ACH at YRC’s 

prompting, but Vizant is not entitled to a fee simply because YRC had fewer creditcard-related costs after the PSA was executed. See id.

33. In sum, contrary to Vizant’s current argument, Vizant must do more than 

show it was not paid under the PSA to recover ACH Damages. Vizant must also (i)

prove that YRC achieved savings by convincing its customers to switch from credit 

card to ACH, id., and (ii) show “with reasonable certainty the amount of damage[s]”

caused by any outstanding fee linked to those savings, Venable, 519 P.2d at 674. The 

Court has concluded that Vizant has forecast adequate evidence to survive summary 

judgment on the first of these points, see Vizant Techs., LLC, 2018 NCBC LEXIS 65, 

at *19, but must now determine whether the same is true of the second.

2. The Sufficiency of Vizant’s Forecast ACH Damages Evidence

34. YRC asserts that Vizant has not presented evidence showing the amount of 

cost savings YRC achieved as the result of any “switch-to-ACH” strategy. Because 

the source of Vizant’s ACH Damages is the alleged unpaid fee tied to such savings, 

YRC argues Vizant cannot prove its claimed ACH Damages with any reasonable 

certainty. While YRC does not appear to contest that some evidence in the record 

shows YRC experienced a decline in the number of customers paying with credit cards 

following the PSA’s execution, YRC contends that Vizant has failed to forecast any 

evidence that would allow a reasonable factfinder to determine what portion of that 

overall decline resulted from YRC’s efforts to cause customers to switch to ACH. YRC 
also argues that Vizant’s evidence of general shifts in payment methods cannot 

account for any incentives YRC paid customers to encourage their switch to ACH, 

another factor YRC asserts is critical in determining the amount of money, if any, 

YRC actually saved from customers switching.

35. Before post-discovery dispositive motions practice in this case, Vizant’s most 

succinct evidence addressing its claimed ACH Damages was Emmanuel’s expert 

opinions. The Court struck Emmanuel’s opinions related to ACH Damages after 

concluding that they were based on insufficient data, were not the product of a 

reliable method, and were not the product of a method that was reliably applied to 

the facts of the case. Id. at *30. The Court’s conclusions were based, in part, on 

Emmanuel’s own deposition testimony, wherein he admitted several ways his 

calculations could not accurately show the amount YRC saved by customers moving 

from credit card to ACH:

Q: In order to calculate how much YRC saved by customers moving from 

credit card to ACH, you certainly ought to account for the amount that YRC 

paid its customers in incentives to make that move from credit card to ACH, 

right?

A: Correct.

Q: And you have not done that, have you?

A: Correct. 

(Emmanuel Dep. 123:24–124:6, ECF No. 90.10.) 

Q: And you have no idea whether or not what you say was a drop in Visa, 

MasterCard or Discover payments had anything to do with YRC encouraging 

a customer to pay by ACH instead of using one of those credit cards, right?

A: Correct.
Q: You have no idea whether those were the simple result of market forces 

where customers change their own . . . payment type or leave and go to a 

different trucking company, right?

. . . .

A: Correct.

. . . .

Q: And you don’t know whether that reduction was caused by YRC 

implementing some recommendation that Vizant put in its report, right?

A: Correct.

Q: All you know is that your math tells you that there was some reduction, 

and who in the world knows why it happened, right?

A: Correct.

(Emmanuel Dep. 111:14–112:1, 137:1–11.)

36. In short, Emmanuel did not attempt to discern what portion of the decrease 

in YRC’s credit-card-related costs was due to customers switching to ACH; he simply 

assumed that each dollar saved should be attributed to a customer switching. The 

Court therefore concluded that Emmanuel’s opinions on ACH Damages were

unreliable under North Carolina Rule of Evidence 702(a) and should be struck:

Under Emmanuel’s calculation, as described by his own testimony, true 

savings caused by YRC’s customers switching to ACH payments and other 

factors leading to a reduction in customers paying with credit cards—for 

example, a reduction in credit card payments due to lost business—would all 

have been counted as savings for which YRC owed Vizant a fee. . . . This 

calculation (i) does not abide by the formula in the PSA, which requires a 

comparison of pre-agreement costs to post-agreement costs resulting from 

strategies identified by Vizant, (ii) rests on unjustifiable assumptions, and 
(iii) could mislead a jury into awarding Vizant damages for what was in 

reality a loss in YRC’s business.

Vizant Techs., LLC, 2018 NCBC LEXIS 65, at *29.

37. The Court’s previous analysis of Emmanuel’s ACH Damages opinions is 

pertinent to the matter sub judice because Vizant’s remaining evidence of ACH 

Damages suffers from the same flaws. All of Vizant’s evidence shows nothing more 

than a net decrease in credit-card-related costs in the months and years following the 

PSA and a net trend towards increasing ACH payments. Simply put, Vizant has no 

evidence that can reasonably approximate what, if any, reduction in YRC’s credit card 

costs is attributable to encouraging customers to switch to ACH.

38. For example, the previously presented chart appearing at the top of page 

seven of Vizant’s supplemental brief (the contents of which remain under seal) shows 

a general shift towards a greater number of ACH payments and fewer credit card 

payments during the years 2014–2017, but the total number of each kind of 

transaction oscillates considerably over that time-span. (Pl.’s Supplemental Br. 7.) 

The chart provides a factfinder with nothing more than Emmanuel’s previously 

stricken opinions and invites jurors to engage in the same speculative analysis by

attempting to discern, without any identifiable framework, what percentage of the 

shown changes occurred due to YRC encouraging customers to switch payment 

methods.

39. Vizant’s supplementation of the record provides no additional evidence to 

remedy this problem. Along with its supplemental brief, Vizant submitted twelve 

YRC-produced spreadsheets in pdf and Excel format (“Exhibits 1–12”). Vizant gives 
little explanation to assist the Court in navigating these spreadsheets, but contends 

that Exhibits 1 and 5 represent “the monetary impact of YRC’s 2015 ACH initiative 

within each of YRC’s operating companies,” (Pl.’s Supplemental Br. 12), and that 

Exhibits 4 and 5 show YRC’s subsidiaries’ revenues by payment type, (Pl.’s 

Supplemental Br. 14). Vizant asserts that it “can argue that YRC’s own evidence 

[shows] the monetary impact of its ACH initiative . . . within the company” and that 

this “is a reasonable basis on which to calculate the [ACH Damages] figure.” (Pl.’s 

Supplemental Br. 12.) The Court has reviewed each spreadsheet and disagrees.

40. Exhibits 2 and 3 showcase information on YRC’s subsidiaries’ top credit card 

accounts for May 2016 (See Pl.’s Supplemental Br. Exs. 2–3, ECF No. 209.1.) These 

exhibits do not present any information that would aid a jury in determining whether 

customers switched from credit card to ACH or, if so, why they switched. Exhibits 4 

and 5 summarize YRC’s revenue and deposits by month from 2013–2017. (See Pl.’s 

Supplemental Br. Exs. 4–5, ECF No. 209.1.) These spreadsheets track the change in 

deposits by payment type per month for YRC and its subsidiaries, but still provide no 

explanation for any changes. Exhibit 6 shows the percentage of YRC’s total deposits 

that were attributable to credit cards from 2006–2011. (See Pl.’s Supplemental Br. 

Ex. 6, ECF No. 209.2.) This exhibit provides no explanation for changes in credit card 

deposits over time and is outside the time-period relevant for this case. 

41. Exhibits 7 and 8 show YRC’s credit card revenues broken down by major 

credit card company and report YRC’s credit card fees for the years 2010–2014. (See

Pl.’s Supplemental Br. Exs. 7–8, ECF No. 209.2.) Exhibit 9 reports credit card 
revenue per major credit card company for YRC’s subsidiaries from October 2015–

January 2016. (See Pl.’s Supplemental Br. Ex. 9, ECF No. 209.2.) Exhibits 10, 11, 

and 12 break down credit card revenue for YRC and its subsidiaries by month in 2014, 

2016, and 2017 respectively. (See Pl.’s Supplemental Br. Exs. 10–12, ECF No. 209.3.) 

None of these spreadsheets illuminate whether customers switched from credit card 

payments to ACH or why they switched.

42. Vizant contends that Exhibit 1 to its supplemental brief, an Excel 

spreadsheet Vizant labeled “ACH Migration Program Impact Sheet,” shows the 

monetary impact of YRC’s 2015 “ACH initiative.” (Pl.’s Supplemental Br. 12; Index 

Supp. Materials for Pl.’s Supplemental Br. 1, ECF No. 209.1; Pl.’s Supplemental Br. 

Ex. 1, ECF No. 209.1.) YRC, however, argues that this representation is false and 

based solely on Plaintiff’s counsel’s interpretation of Exhibit 1. According to YRC,

Exhibit 1 is actually an unused template created by Abraham Bailin (“Bailin”), the 

finance manager of one of YRC’s subsidiaries. (Bailin Aff. ¶¶ 2, 4, 6, ECF No. 213.2.)

43. In an affidavit submitted to the Court with YRC’s supplemental brief, Bailin 

states that he never labeled Exhibit 1 “ACH Migration Program Impact Spreadsheet” 

and that Vizant created that title. (Bailin Aff. ¶ 4.) Bailin also states that Vizant’s 

characterization of Exhibit 1 is incorrect. (Bailin Aff. ¶ 5.) Bailin testifies that he 

created Exhibit 1 in mid-2016 upon YRC’s request and that Exhibit 1 “does not 

provide any information about any actual results of any effort to convince customers 

to pay by ACH instead of by credit card.” (Bailin Aff. ¶ 6.) Instead, according to 

Bailin’s understanding, Exhibit 1 was meant to forecast the financial impact of a 
scenario in which YRC “essentially mandate[d] that customers . . . stop paying by 

credit card.” (Bailin Aff. ¶ 11.) Bailin states that upper management rejected that 

strategy and that, to the best of his knowledge, Exhibit 1 was never used to forecast 

the financial impact of any program that was actually implemented. (Bailin Aff. ¶ 

11.) 

44. According to Bailin—with the exception of the revenue and accounts 

receivable figures from May 2015–April 2016; the April and May 2016 top credit card 

account figures; credit card revenue figures from January 2015–June 2016; and the 

payment terms YRC had with certain third-party logistics companies—the entirety 

of the figures contained in Exhibit 1 are forecast numbers, placeholder variables 

Bailin created to build the model, or figures the model generated by processing actual 

figures and placeholder variables. (Bailin Aff. ¶¶ 7, 8 14.) If YRC actually used 

Exhibit 1, Bailin states, “it would have been up to the user” to input new figures based 

on known or assumed statistics. (Bailin Aff. ¶¶ 14–16.)

45. The Court has reviewed Exhibit 1’s contents and concludes that they 

corroborate Bailin’s affidavit testimony. First of all, Exhibit 1 makes the assumption 

that 100% of the operating revenue eligible to move from credit card payments to 

some other form of payment would do so, (Pl.’s Supplemental Br. Ex. 1), an 

assumption that would not conceivably play out in the real world. Further, while the 

Court must view the facts on YRC’s Summary Judgment Motion in the light most 

favorable to Vizant, the Court cannot ignore the disparity between YRC’s 

characterization of Exhibit 1, which is supported by an affidavit, and Vizant’s 
description of Exhibit 1, which is supported by nothing more than counsel’s argument

in Vizant’s supplemental brief. In light of this lack of evidentiary support for Vizant’s 

interpretation of Exhibit 1, the Court concludes that Exhibit 1 does not provide any 

information from which a factfinder could reasonably approximate Vizant’s ACH 

Damages. See Cone v. Cone, 50 N.C. App. 343, 347, 274 S.E.2d 341, 343–44 (1981) 

(“When a party, in a motion for summary judgment, presents an argument or defense 

supported by facts which would entitle him to judgment as a matter of law, the party 

opposing the motion ‘must present a forecast of the evidence which will be available 

for presentation at trial and which will tend to support his claim for relief.’” (quoting 

Best v. Perry, 41 N.C. App. 107, 110, 254 S.E.2d 281, 284 (1979))); Huss v. Huss, 31 

N.C. App. 463, 466, 230 S.E.2d 159, 161–62 (1976) (“On a motion for summary 

judgment[,] the court may consider evidence consisting of affidavits, depositions, 

answers to interrogatories, admissions, documentary materials, facts which are 

subject to judicial notice, and any other materials which would be admissible in 

evidence at trial.”); see also Ronald G. Hinson Elec., Inc. v. Union Cty. Bd. of Educ., 

125 N.C. App. 373, 379, 481 S.E.2d 326, 330 (1997) (noting that unsworn statements 

by a party’s attorney are not considered evidence at trial).

46. The testimony of Patrick Moran (“Moran”), another of Vizant’s designated 

experts, does nothing to remedy the problems with Vizant’s evidence. Moran testified 

that YRC’s increase in ACH payments and decrease in credit card payments went 

against industry trends because market data showed credit card usage increasing. 

(Moran Dep. 153:1–21, ECF No. 209.5.) Moran also testified that he believed a loss 
in business could not account for the total decrease in credit card payments YRC 

experienced. (Moran Dep. 153:22–154:19.) This evidence goes to whether YRC was 

encouraging customers to switch to ACH but provides nothing from which a 

reasonable factfinder could begin to approximate what part of YRC’s savings resulted 

from any such effort.

47. Further, YRC is correct that none of the above-mentioned evidence would 

allow a jury to “account for the amount that YRC paid its customers in incentives to 

make that move from credit card to ACH,” a consideration that Vizant’s own expert 

agrees is necessary to calculate YRC’s savings. (Emmanuel Dep. 123:24–124:6.) 

None of Vizant’s evidence, with the exception of Exhibit 1’s placeholder variables, 

addresses any financial incentives, real or forecast, associated with YRC encouraging 

customers to switch to ACH. While this aspect of the ACH Damages calculation may 

be more nuanced than those issues already discussed, it showcases yet another way 

Vizant’s proffered evidence provides no details about what savings YRC actually 

realized or may have realized as a result of switching customers to ACH. 

3. Vizant’s Contentions of the “Best Evidence Available”

48. Vizant’s third and final argument asserts that “[a]ny difficulties in 

calculating damages from [the submitted] data is a result of the manner [in which] 

YRC itself maintains the data, not Vizant’s failure to bring forth sufficient evidence” 

and that YRC’s inability to track shifts from credit card payments to ACH payments 

“cannot serve as a basis for granting YRC summary judgment.” (Pl.’s Supplemental 

Br. 15.) To support this assertion that it “should not be penalized” for YRC’s failure 
to “keep necessary records,” (Pl.’s Supplemental Br. 13), Vizant cites New Dimensions 

Products, Inc. v. Flambeau Corp., 844 P.2d 768 (Kan. Ct. App. 1993). That case, 

however, is inapposite.

49. In New Dimensions, a defendant with “exclusive control over all the records” 

useful in calculating damages “consistently denied” that such records existed until 

the first day of a bench trial. Id. at 771, 774. The trial court ordered the records to 

be produced, allowed the plaintiff to introduce the evidence, and sanctioned the 

defendant. Id. at 771. The evidence finally admitted was imperfect, and the trial 

court made certain inferences and assumptions in calculating parts of the plaintiff’s 

damages for which no evidence existed. See id. at 771–72, 774. The trial court’s 

award was affirmed as an exercise of its equitable power to make the plaintiff whole 

by resolving the question of damages “on the best evidence available.” Id. at 771–73;

see also Gillespie v. Seymour, 823 P.2d 782, 797 (Kan. 1991) (“In assessing damages 

it is within the discretion of the trial court to apply equitable standards in order that 

the plaintiff may be made whole.”)

50. In contrast to New Dimensions, here there is no evidence YRC failed to keep 

necessary records or wrongfully refused to produce records to Vizant. YRC’s inability 

to track figures that would easily show Vizant’s ACH Damages did not emerge 

suddenly when the possibility of litigation seemed imminent. Indeed, Vizant’s 

supplemental evidence reveals a conversation taking place months before the 

companies’ relationship fell apart in which YRC personnel discuss their inability to 

track per-customer credit-card-to-ACH changes. (Pl.’s Supplemental Br. Ex. 24, at 1, 
ECF No. 209.4.) The Court will not relieve Vizant of its burden to prove its case 

simply because YRC did not keep records that may be convenient to proving that case. 

Belot v. Unified Sch. Dist. No. 497, 4 P.3d 626, 629 (Kan. Ct. App. 2000) (“The burden 

of proving the damages rests on the plaintiff.”).

51. Furthermore, YRC is not the only entity with access to data that would have 

been useful to Vizant in making its damages case. During discovery, YRC produced 

multiple documents to Vizant listing YRC’s top credit card customer accounts at 

various points in time. (See Pl.’s Supplemental Br. Exs. 2, 9.) Each of these customers

likely would have possessed data on their methods of paying YRC and would have 

been the best source for evidence tending to show why customers switched from credit 

card to ACH, i.e., whether they did so because of a YRC strategy or because of 

convenience, market forces, changes in credit card benefits, or other factors. Despite 

this, the record before the Court does not show any attempt by Vizant to obtain 

discovery from these nonparties. The Court does not believe Vizant is entitled to an 

equitable easing of its burden of proof in such circumstances. See New Dimensions, 

884 P.2d at 774 (stating that evidence is sufficient where it “shows the extent of the 

damages as a matter of just and reasonable inference,” but reaffirming that “damages 

may not be determined by mere speculation or guess” (quoting Vanguard Ins. Co. v. 

Connett, 270 F.2d 868, 870 (10th Cir. 1959))).

52. In sum, none of the evidence Vizant presents to the Court would “enable the 

jury to arrive at an approximate estimate” of Vizant’s ACH Damages. See Venable, 

519 P.2d at 674. At most, the forecast evidence shows that YRC’s credit card revenue 
and credit-card-related costs decreased in the months following the execution of the 

PSA and that YRC’s ACH revenue increased. While Vizant argues that “these records 

are sufficient to allow a jury to arrive at a reasonable calculation of Vizant’s damages, 

including the ACH subcategory,” (Pl.’s Supplemental Br. 15), without any evidence 

allowing a factfinder to even begin to discern what portion of YRC’s reduced credit 

card costs may have been tied to YRC’s efforts to switch customers to paying by ACH, 

presenting the current record to a jury and asking it to approximate the claimed ACH 

Damages would be asking jurors to engage in the same speculation that formed the 

basis for Emmanuel’s unreliable opinions. Kansas law does not allow for Vizant to 

recover damages on such evidence. See Reliance Ins. Co., 107 P.3d at 1228 (“A party 

is not entitled to recover damages not the proximate result of the breach of contract 

and those which are remote, contingent, and speculative in character.” (internal 

quotation marks omitted)).2 

53. In light of the above, the Court concludes that YRC has met its burden on 

summary judgment by showing that Vizant cannot produce evidence to support its 

claimed ACH Damages. Vizant has failed to respond with a forecast of evidence 

demonstrating specific facts to prove this element of its breach of contract claim at 

trial. The Court therefore concludes that summary judgment should be granted in 

2

 The Court notes that its conclusion herein would be identical under North Carolina law, 

which provides that “the party seeking damages must show that the amount of damages is 

based upon a standard that will allow the finder of fact to calculate the amount of damages 

with reasonable certainty.” Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 547–48, 356 

S.E.2d 578, 586 (1987).
YRC’s favor as to Vizant’s claimed ACH Damages. See Gaunt, 139 N.C. App. at 784–

85, 534 S.E.2d at 664.

IV.

CONCLUSION

54. WHEREFORE, the Court hereby AMENDS its June 26, 2018 Order and 

Opinion on Cross Motions for Summary Judgment and Defendant’s Motion to Strike

and ORDERS as follows:

a. YRC’s Cross Motion for Summary Judgment is GRANTED in part. 

Vizant shall not recover damages relating to savings YRC purportedly 

achieved as a result of any strategy aimed at causing customers to 

switch from credit card payments to ACH payments.

b. YRC’s Cross Motion for Summary Judgment is otherwise DENIED with 

regard to Vizant’s breach of contract claim.

c. Except as otherwise stated herein, the Court’s decisions in its June 26, 

2018 Order and Opinion are unaffected by this ruling.

SO ORDERED, this the 15th day of November, 2018.3

/s/ Louis A. Bledsoe, III

Louis A. Bledsoe, III

Chief Business Court Judge

3

 This Order and Opinion was originally filed under seal on November 15, 2018. This public 

version of the Order and Opinion is being filed on November 19, 2018. Because this public 

version of the Order and Opinion does not contain any substantive changes from the version 

filed under seal as to constitute an amendment, and to avoid confusion in the event of an 

appeal, the Court has elected to state the filing date of the public version of the Order and 

Opinion as November 15, 2018.