UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMY JONES,

Plaintiff-Appellant,

v.

No. 98-1133

COLONIAL LIFE & ACCIDENT

INSURANCE COMPANY,

Defendant-Appellee.

JIMMY JONES,

Plaintiff-Appellee,

v.

No. 98-1223

COLONIAL LIFE & ACCIDENT

INSURANCE COMPANY,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CA-95-361-5-1-H)

Argued: March 2, 1999

Decided: May 3, 1999

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William D. McNaull, Jr., Charlotte, North Carolina, for

Appellant. John Lester Sarratt, KILPATRICK STOCKTON, L.L.P.,

Raleigh, North Carolina, for Appellee. ON BRIEF: Karen F. Gray,

KILPATRICK STOCKTON, L.L.P., Raleigh, North Carolina, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jimmy Jones brought breach of contract and state law deceptive

practices claims against his former employer, Colonial Life & Accident Insurance Company (Colonial Life). The district court dismissed

the deceptive practices claim before trial. At trial, on the question of

damages, the court excluded Jones's testimony regarding future lost

earnings. A jury found for Jones on the breach of contract claim, but

awarded no damages. Jones now appeals. Colonial Life cross-appeals

the finding that it breached the contract. We affirm.

I.

Jimmy Jones began selling insurance for Colonial Life in 1962.

Eventually, Jones entered into a formal Market Director Agreement

(the Agreement) with Colonial Life. Among other things, the Agreement required Jones to recruit, train, and motivate new independent

agents to sell Colonial Life insurance. As compensation, Jones

received a commission on all premiums received on policies sold by

the agents under him and a commission on each of these policies that

was renewed. The Agreement provided that if Jones was terminated,

he would no longer receive sales commissions. Nevertheless, Jones

was entitled to the renewal commissions for the remainder of his life

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or 20 years, whichever was longer, provided he did not compete with

Colonial Life in the future.

On January 2, 1995, Colonial Life terminated Jones on the grounds

that his job performance was inadequate. Jones then sued, alleging

that Colonial Life (1) breached the Agreement and (2) engaged in

unfair or deceptive acts or practices in violation of North Carolina

General Statutes § 75-1.1. He contended that his sudden difficulty in

recruiting and motivating insurance agents was due to two actions

taken by Colonial Life. First, the company began to pay to Statewide

Benefits, Inc., a third-party broker, a 13 1/2 percent share of commissions on policies sold to state government agencies. Second, Colonial

Life assigned all of the school teacher accounts in North Carolina to

another Market Director. Jones also contended that these actions

caused a substantial reduction in his potential future income.

Colonial Life moved to dismiss the deceptive practices claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and the district

court granted this motion. At trial on the remaining breach of contract

claim, Jones testified about his past income under the Agreement.

However, the court prevented him from testifying about his future

expectations with regard to his renewal commissions. Ultimately, a

jury found that Colonial Life breached the Agreement, but awarded

no damages. Jones moved for a new trial on the question of damages,

and the court denied that motion.

Jones now appeals, contending that the district court improperly

dismissed his deceptive practices claim. He further asserts that the

court improperly excluded his testimony regarding future renewal

commissions and erred by denying his motion for a new trial.* Colonial Life cross-appeals, contending that the jury's verdict finding a

breach of contract was not supported by the evidence.

_________________________________________________________________

*We dismissed an initial appeal by Jones because the district court had

not yet entered a final order. See 28 U.S.C.§ 1291. The district court has

since disposed of the outstanding issues in the case, and Jones now

appeals from a final order.

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II.

We affirm the district court's dismissal of Jones's deceptive practices claim.

North Carolina General Statutes § 75-1.1 outlaws unfair methods

of competition and unfair or deceptive acts or practices in or affecting

commerce. However, it does not apply to an "ordinary breach of contract," even if that breach was intentional. United Roasters, Inc. v.

Colgate-Palmolive Co., 649 F.2d 985, 992 (4th Cir. 1981). Section

75-1.1 only covers actions that are "actually deceptive or approach

deception." Id. We have also concluded that for this statute to apply,

the deception must have taken place at the time the contract was

made. Id.

Jones contends that Colonial Life violated § 75-1.1 when it (1)

began paying a portion of sales commissions to Statewide Benefits for

policies sold to state government agencies and (2) transferred the

accounts of teachers in North Carolina to another Market Director.

These claims, however, involve allegations of ordinary breach of contract on the part of Colonial Life. Furthermore, these actions by Colonial Life occurred after the formation of the Agreement; Jones does

not allege any deception at the time the contract was made. Therefore,

§ 75-1.1 does not apply to Colonial Life's conduct. Even if all facts

are construed in Jones's favor, the deceptive practices claim fails to

state a claim upon which relief may be granted.

III.

We conclude that the district court did not abuse its discretion in

excluding testimony by Jones regarding his predictions of future

renewal commissions.

On direct examination Jones testified about his past earnings under

the Agreement and about the components of that income. He also estimated, based on his past experience, the rate at which policy renewals

decline over time. However, the court sustained Colonial Life's

objection when Jones was asked about "his personal expectation or

perception of his renewals in the future, given the present state of the

situation. In other words, with his not being with the company."

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Federal Rule of Evidence 701 requires that lay opinion testimony

be "rationally based on the perception of the witness." In other words,

the testimony must be based on the firsthand knowledge of the witness, including "relevant historical or narrative facts that the witness

has perceived." MCI Telecommunications Corp. v. Wanzer, 897 F.2d

703, 706 (4th Cir. 1990) (quoting Teen-Ed, Inc. v. Kimball International, Inc., 620 F.2d 399, 403 (3d Cir. 1980)). The district court

properly allowed Jones to testify on matters within his firsthand

knowledge -- his past income and past experience with renewals.

However, Jones's predictions regarding future renewals would have

been entirely speculative and outside his firsthand knowledge.

Jones contends that MCI Telecommunications supports the admissibility of his testimony. In that case, this court ruled that the opinion

testimony of a non-party bookkeeper (who was not designated as an

expert) was admissible. MCI Telecommunications , 897 F.2d at 706.

The testimony involved her calculations of her company's profits during the three years prior to trial. We based our decision on the bookkeeper's firsthand knowledge of the company's underlying financial

records and the fact that her calculations were based on these records.

Id. Here, however, Jones's testimony would have involved predictions of future events, not estimates of amounts that had already

accrued before trial. As a result, it would have been more speculative

than the evidence in MCI Telecommunications. Therefore, we cannot

say that the district court abused its discretion in excluding this evidence.

IV.

The district court did not abuse its discretion by denying Jones's

motion for a new trial on the question of damages. The fact that the

jury found a breach of the Agreement but awarded no damages is

unremarkable. See, e.g., City of Richmond v. Madison Mgmt. Group,

Inc., 918 F.2d 438, 456-58 (4th Cir. 1990). The jury may simply have

concluded that although Colonial Life breached the Agreement, there

was insufficient evidence of damages. Alternatively, there was ample

evidence for a reasonable jury to find that Jones failed to mitigate his

damages. He continued to earn renewal commissions after he was terminated (he received more than $150,000 in 1995). He admitted that

he did no work at all in 1995, nor did he seek any other employment.

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He also rejected the position of Sales Director that Colonial Life

offered him.

The jury's decision to award no damages was therefore supported

by the evidence. Accordingly, the district court's denial of Jones's

motion for a new trial on the question of damages was not an abuse

of discretion.

V.

Colonial Life cross-appeals, contending that the evidence was

insufficient to support the jury's finding that the company breached

the Agreement. We disagree.

The Agreement gave Colonial Life the right to terminate Jones for

"just cause." Colonial Life contends that Jones was terminated

because he failed to fulfill his contractual duty to recruit, train, and

motivate sales representatives. Although his performance numbers

were decreasing, Jones offered evidence that his decline in performance was due to Colonial Life's agreement with Statewide Benefits.

Several rebuttal witnesses confirmed this story. This evidence was

sufficient for a reasonable jury to conclude that Colonial Life

breached the Agreement.

VI.

For the reasons stated above, the judgment of the district court is

AFFIRMED.

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