UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMZURA ENTERPRISES, 

INCORPORATED, d/b/a Amzco/Surgical

Devices, U.S.A.,

Plaintiff-Appellee,

v.

JAVAID A. RATCHER, an individual;

AFFILIATED INDUSTRIES,

INCORPORATED; FRANK FRANCOIS, an

individual,  No. 97-2697

Defendants-Appellees,

GLOBAL FINANCIAL CORPORATION,

Intervenor-Appellant,

and

STANLEY V. CAMPBELL; MARK

FOWLER; ROWE INCORPORATED;

ANDERSON FUNDING GROUP,

Defendants. 
AMZURA ENTERPRISES, 

INCORPORATED, d/b/a Amzco/Surgical

Devices, U.S.A.,

Plaintiff-Appellee,

v.

STANLEY V. CAMPBELL; ROWE

INCORPORATED,

Defendants-Appellants,

JAVAID A. RATCHER, an individual;

AFFILIATED INDUSTRIES,  No. 97-2698

INCORPORATED; FRANK FRANCOIS, an

individual,

Defendants-Appellees,

and

MARK FOWLER; ANDERSON FUNDING

GROUP,

Defendants,

GLOBAL FINANCIAL CORPORATION,

Intervenor-Defendant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-96-1601-A, CA-97-956-A)

Argued: October 27, 1999

Decided: September 7, 2001

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion. 

2 AMZURA ENTERPRISES, INC. v. RATCHER
COUNSEL

ARGUED: Timothy Brian Mills, PATTON BOGGS, L.L.P., Washington, D.C., for Appellant. Walter Elmer Diercks, RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P., Washington, D.C.,

for Appellees. ON BRIEF: William E. Slade, Carol L. Hoshall, PATTON BOGGS, L.L.P., Washington, D.C., for Appellant. Frederick D.

Cooke, Jr., RUBIN, WINSTON, DIERCKS, HARRIS & COOKE,

L.L.P., Washington, D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

This appeal requires us to determine whether a notice of appeal

signed by a corporate officer on behalf of the corporation is defective;

whether the district court erred on the first day of trial by inviting and

granting the oral summary judgment motion of AMZURA Enterprises, Incorporated (AMZURA), doing business as AMZCO/Surgical

Devices, U.S.A. (AMZCO), on the state law claims of Rowe, Incorporated (Rowe), its president, Stanley V. Campbell (Campbell), and

Global Financial Corporation (Global); and whether, as a matter of

law and under the facts presented, consequential damages may not be

recovered. We conclude that although Campbell signed the notice of

appeal on behalf of Rowe, Rowe’s notice of appeal was not jurisdictionally defective. We also conclude that the district court did not

commit reversible error in granting AMZCO’s oral motion for summary judgment as to Rowe, Campbell, and Global’s fraud claims with

less than ten-days notice. However, we remand Rowe, Campbell, and

Global’s other state law claims for further proceedings consistent with

this opinion because the record before us is unclear as to whether

there is a triable issue of fact as to those claims. Finally, we reverse

the district court’s conclusion that, as a matter of law, consequential

AMZURA ENTERPRISES, INC. v. RATCHER 3
damages may not be recovered for AMZCO’s breach of the financing

agreement. 

I.

In February 1996, the United States Small Business Administration

(the Government) awarded a subcontract (the Army Contract) to

Rowe under which Rowe would lease twenty-nine medical vehicles

to the Army for a one-year term, with four one-year options to extend

the lease. The Army Contract called for Rowe to receive $310,808.08

for the first year of the lease and a total of $1,554,040.40 if the Army

exercised all four of its one-year options. In order to perform the

Army Contract — which required Rowe to purchase parts, vehicles,

and other equipment — Rowe sought financing from AMZCO. By a

letter agreement dated July 19, 1996 (the July 19 agreement) and an

amendment dated July 26, 1996 (the July 26 amendment), AMZCO

agreed to finance Rowe for "up to $1 million." (J.A. at 287, 290.) In

exchange, AMZCO received an assignment of revenues due Rowe

under the Army Contract, as well as a security interest in the vehicles,

to secure Rowe’s indebtedness to AMZCO. Under the agreement,

MashreqBank was designated to provide funds for AMZCO. The July

19 agreement was signed by Javaid Ratcher, AMZCO’s president, on

behalf of AMZCO and by Campbell on behalf of Rowe. Neither

Campbell nor Ratcher signed the agreement in his individual capacity.

Similarly, Campbell signed the July 26 amendment on behalf of

Rowe. As part of the financing arrangement, Rowe asked Frank Francois, president of Affiliated Industries, to coordinate AMZCO’s purchase of ten of the medical vehicles on behalf of Rowe. AMZCO

titled these ten vehicles in its own name. After providing funding in

the amount of $470,696.56, AMZCO sought to impose additional

conditions on its financing agreement with Rowe before providing

further funding for the medical vehicles. Because of the lack of

financing, several creditors threatened to sue Rowe. At least one creditor, Richmond Motor Company, did file suit against Rowe. Rowe

notified AMZCO of the pending suit, but AMZCO did not pay the

amounts due to Richmond Motor Company or other creditors. 

On or about September 9, 1996, Rowe sought alternative financing

and engaged in a purchase agreement with Anderson Funding Group

(Anderson), under which Rowe conveyed all of its rights in the medi4 AMZURA ENTERPRISES, INC. v. RATCHER
cal vehicles to Anderson.1

 Anderson then assigned all of its rights to

Global. Global agreed to provide the necessary financing, and Rowe

assigned Global the right to receive all of Rowe’s revenues under the

Army Contract. After Global began to finance Rowe, Rowe filed a

notice of release with the Government and MashreqBank advising

them to assign the proceeds of the Army Contract to Global, rather

than to AMZCO. Campbell spoke with Francois and Ratcher and

informed them of Rowe’s new arrangement with Global. Believing

that AMZCO had agreed to transfer title of the ten vehicles to Rowe

in exchange for repayment of the funds that AMZCO had already

financed, Global paid $470,696.56 to AMZCO on behalf of Rowe.

AMZCO deposited the money but refused to transfer title of the ten

vehicles. AMZCO claimed that it owned the vehicles because it had

purchased them. 

On November 6, 1996, AMZCO filed suit in the Eastern District

of Virginia, asserting diversity jurisdiction and alleging that Campbell

and Rowe had breached their financing agreement. AMZCO asserted

claims of fraud, breach of contract, and intentional interference with

its business relationship with the Government and MashreqBank.

AMZCO also sought punitive damages. On December 9, 1996, counsel for Campbell and Rowe filed an answer and counterclaim seeking

damages for breach of contract. Rowe and Campbell also requested

a declaratory judgment that Rowe owned the ten medical vehicles. 

On May 2, 1997, the district court granted a motion by Campbell

and Rowe’s counsel to withdraw from the case, leaving Campbell and

Rowe to proceed pro se.

2

 On June 18, 1997, Global filed suit to pro1Anderson and its president, Mark Fowler, were originally parties to

this suit, but both were dismissed from this action and are not parties on

appeal. 

2Although the district court considered and granted the motion by

Rowe and Campbell’s counsel to withdraw, we find nothing in the record

to suggest that the district court considered the issue of whether Rowe,

as a corporation, was capable of proceeding pro se. Moreover, there is

no evidence in the record that Campbell is a licensed attorney admitted

to practice in the Eastern District of Virginia or the Fourth Circuit. Nevertheless, no issue was raised as to the effect on the district court’s judgment of Rowe’s participation in the district court without counsel. On

remand Rowe may only proceed with licensed counsel. 

AMZURA ENTERPRISES, INC. v. RATCHER 5
tect its interest in the ten medical vehicles, asserting claims of detinue

and unjust enrichment (against AMZCO and Ratcher), trover, unlawful conversion, fraud in the inducement and breach of contract

(against AMZCO, Ratcher, Francois, and Affiliated) (collectively,

Global’s state law claims). Global requested declaratory relief, as well

as compensatory and punitive damages. The district court granted

Global’s motion to consolidate its case with the pending suit between

AMZCO and Rowe and Campbell. 

Global filed a motion for partial summary judgment against

AMZCO and Ratcher on its detinue and unjust enrichment counts,

and against AMZCO, Ratcher, Francois, and Affiliated on its trover/unlawful conversion counts. Global argued that there was no genuine issue of material fact regarding its claim that AMZCO had no

right to retain title to the ten medical vehicles and that Rowe’s repayment of the money discharged Rowe’s obligations to AMZCO. Rowe

and Campbell, acting pro se, filed a motion for summary judgment

against AMZCO on all counts of AMZCO’s complaint and in favor

of their own breach-of-contract counterclaim, arguing that AMZCO

breached its contract by failing to provide the full amount of financing. AMZCO did not file its own motion for summary judgment but

did submit memoranda of law, along with various attachments, exhibits, and affidavits, in opposition to the motions filed by Rowe, Campbell, and Global. 

After Rowe, Campbell, and Global filed their motions for summary

judgment, AMZCO filed a first amended complaint, which added a

constructive fraud claim against Rowe and Campbell. Rowe and

Campbell then filed an amended answer and counterclaims that

asserted counts of trover and unlawful conversion; fraud in inducement and breach of contract to convey title; unjust enrichment; and

tortious interference with contracts and business relationships (collectively, Rowe and Campbell’s state tort law claims) against AMZCO.

Campbell signed the amended answer and counterclaims "Individually and As President Of Rowe Incorporated." (J.A. at 127R.)3

 On the

3Rowe and Campbell’s motion for summary judgment and their

amended answer and counterclaims were apparently prepared by former

counsel before he withdrew from the case. We do not know whether

Campbell modified these documents prior to filing them. 

6 AMZURA ENTERPRISES, INC. v. RATCHER
same day, Global responded to AMZCO’s amended complaint with

its own answer and also filed a motion to dismiss AMZCO’s fraud

and constructive fraud counts for failure to plead with particularity.

AMZCO did not file any summary judgment motions against Rowe,

Campbell, or Global. 

The parties convened for trial as scheduled on September 8, 1997.

On the first day, the district court heard arguments on the previously

filed summary judgment motions, as well as Global’s new motion to

dismiss. The district court dismissed AMZCO’s fraud and constructive fraud counts, and also granted partial summary judgment in favor

of Rowe, Campbell, and Global on the breach-of-contract issue. The

district court found that AMZCO breached its contract to provide

financing and that AMZCO was not entitled to any of the medical

vehicles. The district court ordered AMZCO to transfer title of the

vehicles to Global. The district court also concluded that Campbell

and Rowe could not recover consequential damages resulting from

AMZCO’s breach of contract because, as a matter of law, those damages were not foreseeable. It also held that AMZCO had no valid

claims against Rowe, Campbell, or Global. 

At the hearing, the district court invited AMZCO to move orally

for summary judgment against Global, Campbell, and Rowe on their

state tort law claims. After brief argument, the district court granted

AMZCO’s oral motion for summary judgment. Neither Campbell nor

Rowe, who each were proceeding pro se, objected to the district

court’s action. Global, which was represented by counsel, also did not

object. On October 24, 1997, the district court issued its final written

order disposing of the entire case.4

On November 21, 1997, AMZCO filed its notice of appeal as to the

district court’s ruling on Rowe and Campbell’s breach-of-contract counterclaim.5

 On November 24, 1997, Global filed its notice of appeal

and on December 3, 1997, Campbell and Rowe filed a joint notice of

appeal, which was signed only by Campbell "Pro se and for Rowe,

4The district court specifically mentioned only Rowe, Campbell, and

Global’s "fraud" claims in its final order. 

5AMZCO later voluntarily withdrew its appeal. 

AMZURA ENTERPRISES, INC. v. RATCHER 7
Inc." (J.A. at 284.) On June 2, 1998, Global’s trial counsel entered an

appearance on behalf of Campbell and Rowe. Since that time, Global’s trial counsel has filed joint briefs on behalf of Rowe, Campbell,

and Global, and has represented them jointly in this appeal. 

Rowe, Campbell, and Global raise several issues on appeal. First,

they argue that the district court erred by inviting and granting

AMZCO’s oral summary judgment motion against their state tort law

claims because the district court did not give them adequate notice or

an opportunity to respond. Second, Rowe and Campbell contend that

the district court erred in concluding, as a matter of law, that Rowe

and Campbell could not recover consequential damages for

AMZCO’s breach of contract because, they argue, foreseeability is a

question of fact for the jury. 

At oral argument, AMZCO questioned for the first time whether

we lack jurisdiction to hear Rowe’s appeal because licensed counsel

did not sign its notice of appeal. At our request, the parties filed supplemental briefs on this issue. In conjunction with its supplemental

brief, Rowe also filed a motion for leave to file its notice of appeal

out of time. We must address questions of subject matter jurisdiction

first "‘because they concern the court’s very power to hear the case.’"

Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999)

(quoting 2 James Wm. Moore et al., Moore’s Federal Practice

§ 12.30[1] (3d ed. 1998)). Moreover, "the absence of jurisdiction may

be raised at any time during the case, and may be based on the court’s

review of the evidence." Lovern v. Edwards, 190 F.3d 648, 654 (4th

Cir. 1999). Therefore, we begin by considering whether we have

jurisdiction to hear Rowe’s appeal. 

II.

AMZCO argues that the notice of appeal, signed by a pro se litigant on behalf of the corporation for which he is president rather than

by licensed counsel, is invalid to bring the corporation’s appeal within

our jurisdiction. Reviewing this question of subject matter jurisdiction

de novo, see Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034

(4th Cir. 1994) (reviewing de novo a dismissal based upon lack of

subject matter jurisdiction), we conclude that we have jurisdiction

over Rowe’s timely noted appeal because although Rowe’s original

8 AMZURA ENTERPRISES, INC. v. RATCHER
notice of appeal was technically defective for lack of a proper signature, Rowe remedied that defect by filing a corrected notice of appeal.

See Becker v. Montgomery, No. 00-6374, 2001 WL 567709 (U.S.

May 29, 2001) (stating that although Becker’s notice of appeal was

defective because it lacked a proper signature, the Court of Appeals

for the Sixth Circuit erred in refusing to accept Becker’s corrected

notice of appeal). 

In Becker, the Supreme Court addressed the question of whether,

"[w]hen a party files a timely notice of appeal in district court, . . .

the failure to sign the notice of appeal require[s] the court of appeals

to dismiss the appeal." Id. at *3 (internal quotation marks omitted).

Becker, a pro se inmate, had timely filed a notice of appeal in which

he had typewritten, but did not hand sign, his own name. Id. The

Court of Appeals for the Sixth Circuit dismissed Becker’s appeal on

the ground that Becker’s failure to sign his notice of appeal was jurisdictional "and therefore not curable outside the time allowed to file

the notice." Id. The Supreme Court agreed that Becker’s notice of

appeal was defective due to the lack of his signature, but it disagreed

with the Sixth Circuit’s conclusion that Becker could not cure the

defect by filing a corrected notice of appeal after expiration of the

appeal period. Id. at *5-6.

The Court reasoned that Federal Rule of Civil Procedure 11 governed the signature requirement for the notice of appeal.6

 Federal Rule

of Civil Procedure 11 provides, in pertinent part,

(a) Signature. Every pleading, written motion, and other

paper shall be signed by at least one attorney of record in

the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each

paper shall state the signer’s address and telephone number,

if any. Except when otherwise specifically provided by rule

6

In Covington v. Allsbrook, 636 F.2d 63 (4th Cir. 1980), we concluded

that Federal Rule of Civil Procedure 11 does not apply to notices of

appeal. See id. at 64 n.2. To the extent that our decision in Covington is

inconsistent with the Supreme Court’s decision in Becker v. Montgomery, No. 00-6374, 2001 WL 567709 (May 29, 2001), Becker, of course,

controls. 

AMZURA ENTERPRISES, INC. v. RATCHER 9
or statute, pleadings need not be verified or accompanied by

affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called

to the attention of the attorney or party. 

Fed. R. Civ. P. 11(a). The Court noted that although Becker typed his

name and although the Civil Rules now recognize certain technological advances, such as electronic filing, "[a]s Rule 11(a) is now

framed, we read the requirement of a signature to indicate, as a signature requirement commonly does, and as it did in John Hancock’s

day, a name handwritten (or a mark handplaced)." Id. at *5. 

The Court stated, however, that "[a]s plainly as Civil Rule 11(a)

requires a signature on filed papers, . . . so the rule goes on to provide

in its final sentence that ‘omission of the signature’ may be ‘corrected

promptly after being called to the attention of the attorney or party.’"

Id. at *5. Consequently, because Becker offered a corrected notice of

appeal containing his signature, the Court ruled that his appeal should

not have been dismissed: "We rule simply and only that Becker’s

lapse was curable as Civil Rule 11(a) prescribes; his initial omission

was not a "jurisdictional" impediment to pursuit of his appeal." Id. at

*6. In sum, the Court held that

The governing Federal Rules direct that the notice of appeal,

like other papers filed in district court, shall be signed by

counsel or, if the party is unrepresented, by the party himself. But if the notice is timely filed and adequate in other

respects, jurisdiction will vest in the court of appeals, where

the case may proceed so long as the appellant promptly supplies the signature once the omission is called to his attention. 

Id. at *3. 

In the present case, Rowe timely filed a notice of appeal that was

signed only by Campbell, a non-lawyer, on Rowe’s behalf and not by

licensed counsel. After AMZCO questioned the validity of Rowe’s

notice of appeal at oral argument on the basis that Rowe, as a corporation, could not sign its own notice of appeal and that Campbell, as a

non-lawyer, was not authorized to sign the notice on Rowe’s behalf,

10 AMZURA ENTERPRISES, INC. v. RATCHER
Rowe promptly submitted a corrected notice of appeal signed by counsel.7

 Assuming, without deciding, that Campbell’s signature on

Rowe’s initial notice of appeal was insufficient to satisfy Federal Rule

of Civil Procedure 11’s signature requirement, Becker mandates the

conclusion that we nevertheless have jurisdiction over Rowe’s appeal

because Rowe promptly filed a corrected notice of appeal. See

Becker, 2001 WL at *8 (concluding that the court of appeals erred in

refusing to accept Becker’s corrected notice of appeal). 

III.

Having concluded that we have jurisdiction to consider Rowe’s

appeal, we next address Rowe, Campbell, and Global’s claims. Rowe,

Campbell, and Global first argue that the district court erred in inviting and granting AMZCO’s oral motion for summary judgment on

their state law claims without giving them ten days’ notice and any

opportunity to respond. They also argue that the district court erred

in concluding that there is no triable issue of fact as to their state law

claims. With regard to Rowe, Campbell, and Global’s assertion of

procedural error, we conclude that the district court did not commit

reversible error in failing to give ten-days notice before granting

AMZCO’s oral motion for summary judgment. With regard to the

substance of Rowe, Campbell, and Global’s state law claims, we conclude that Rowe, Campbell and Global failed to raise a triable issue

of fact as to their fraud claims, and, therefore, we affirm the district

court’s grant of summary judgment as to those claims. Because the

record before us is unclear as to whether there is a triable issue of fact

as to Rowe, Campbell, and Global’s other state law claims, however,

we reverse and remand the district court’s judgment for further proceedings consistent with this opinion. Finally, we conclude that the

7We heard oral argument on October 27, 1999, and requested supplemental briefing on the issue of the validity of Rowe’s notice of appeal.

On November 23, 1999, within the time allotted by us to file supplemental briefing, Rowe filed a motion for leave to file an amended notice of

appeal, with an attached amended notice of appeal signed by counsel.

We grant Rowe’s motion and accept Rowe’s amended notice of appeal.

We note that licensed counsel filed Rowe’s briefs and orally argued

before us. At all times, AMZCO and this Court were well aware that

both Campbell and Rowe were on appeal. 

AMZURA ENTERPRISES, INC. v. RATCHER 11
district court erred in ruling as a matter of law that consequential

damages are not recoverable for AMZCO’s breach of the financing

agreement, and we reverse and remand the district court’s judgment

on that issue for further proceedings consistent with this opinion. 

A.

We turn first to Rowe, Campbell, and Global’s claim of procedural

error — that the district court erred by not affording them ten-days

notice before granting AMZCO’s oral motion for summary judgment.

Federal Rule of Civil Procedure 56 requires a party to serve a summary judgment motion "at least 10 days before the time fixed for the

hearing." Fed. R. Civ. P. 56(c). Rule 56, however, "does not provide

for situations in which . . . the court desires to enter summary judgment sua sponte, or in which the nonmoving party, rather than the

movant, is entitled to summary judgment, but no cross-motion has

been made." 10A Charles Alan Wright et al., Federal Practice & Procedure § 2720 (3d ed. 1998). Although Rule 56 governs summary

judgment motions made by the parties, it is clear that a district court

may enter summary judgment sua sponte and that the principles of

Rule 56 apply to the latter situation. See United States Dev. Corp. v.

Peoples Fed. Sav. & Loan Ass’n, 873 F.2d 731, 735 (4th Cir. 1989).

Thus, when the district court considers summary judgment sua

sponte, it generally must give the nonmoving party sufficient notice

and an opportunity to respond. See id. In United States Development,

we addressed whether the district court erred by granting summary

judgment sua sponte against the United States Development Corporation (USDC) on its newly added contract claim without giving USDC

any notice or an opportunity to be heard. See id. In concluding that

the district court erred, we noted that the district court’s power to

grant summary judgment sua sponte

is contingent on giving the losing party notice that it must

come forward and defend its claim. While this notice need

not necessarily be a formal document, it should provide the

full ten days called for by Fed. R. Civ. P. 56(c). The notice

must be sufficient to provide the losing party with an adequate opportunity to demonstrate a genuine issue of material

fact. And it must, in view of the procedural, legal, and factual complexities of the case, allow the party a reasonable

12 AMZURA ENTERPRISES, INC. v. RATCHER
opportunity to present all material pertinent to the claims

under consideration. 

Id. (internal citations omitted).8

Assuming that the ten-days-notice rule of United States Development applies to this case, we conclude that the district court’s failure

to give Rowe, Campbell, and Global ten-days notice was at most

harmless error.9See Fender v. General Elec. Co., 380 F.2d 150, 152

8We recognize that the ten-days-notice rule might not apply where the

district court is already considering a properly noticed motion for summary judgment from the moving party and decides to enter summary

judgment sua sponte in favor of the nonmovant on an issue identical to

that which it is already considering, even absent a cross-motion, because

"[t]he threat of procedural prejudice is greatly diminished if the court’s

sua sponte determination is based on issues identical to those raised by

the moving party." Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d

Cir. 2000) (internal quotation marks and alteration omitted); see Exxon

Corp. v. St. Paul Fire & Marine Ins. Co., 129 F.3d 781, 786 (5th Cir.

1997) (noting that the district court, in essence, treated Exxon’s opposition to St. Paul’s motion for summary judgment as a cross-motion for

summary judgment: "That Exxon did not file a proper motion for summary judgment does not preclude the district court in the instant action

from granting summary judgment in its favor."). But see Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997) (stating that

"[t]he notice provisions retain their mandatory character even when the

district court contemplates awarding summary judgment sua sponte

against a party that itself had moved for summary judgment"). 

In the present case, Rowe, Campbell, and Global moved for summary

judgment as to several of their own claims, as well as AMZCO’s claims,

but they did not move for summary judgment as to their own fraud

claims. As a result, the same claims were not at issue in AMZCO’s oral

motion for summary judgment and Rowe, Campbell, and Global’s

motions for summary judgment. For that reason, we need not address

whether a district court may, in some circumstances, grant summary

judgment sua sponte without notice in favor of a nonmovant where the

moving party has filed a motion for summary judgment on an identical

issue. 

9This reasoning also applies to Rowe, Campbell, and Global’s argument that the district court’s grant of AMZCO’s oral motion for summary judgment contravened Eastern District of Virginia Local R. 56(A)

and the scheduling order entered in this case on July 18, 1997. 

AMZURA ENTERPRISES, INC. v. RATCHER 13
(4th Cir. 1967) (concluding that district court’s consideration of summary judgment before counter-affidavits were due was harmless error

because, among other reasons, there was "no material surprise," and

Fender refused to present evidence or affidavit to contradict General

Electric’s proof); see also Powell v. United States, 849 F.2d 1576,

1580 (5th Cir. 1988) (applying a harmless-error analysis to a district

court’s grant of summary judgment sua sponte without ten-days

notice); Harrington v. Vandalia-Butler Bd. of Educ., 649 F.2d 434,

436-37 (6th Cir. 1981) (same). In Oppenheimer v. Morton Hotel

Corp., 324 F.2d 766, 767-68 (6th Cir. 1963) (per curiam), cited favorably by Fender, the Sixth Circuit concluded that the district court’s

grant of summary judgment without giving ten days’ notice was not

reversible error on the grounds that "the trial judge asked counsel if

he had any further evidence to submit and he replied in the negative,"

id. at 767-68, that "[t]here is no claim now on this appeal that counsel

had further evidence to submit," id. at 768, and that "it would be a

useless procedure to reverse the District Court because it did not

allow ten days to elapse from the time the motion was filed until it

was heard," id. In the present case, just as in Oppenheimer, the district

court asked Rowe, Campbell, and Global if they had any additional

arguments or issues to raise in the case, and they did not object or

request additional time to offer further evidence or argument. On

appeal, Rowe, Campbell, and Global have not pointed to any additional evidence, beyond conclusory allegations, that they might have

offered as to their fraud claims had the district court given them more

time to respond. 

The proceedings leading up to the district court’s grant of

AMZCO’s motion for summary judgment further support our conclusion that the district court’s failure to give Rowe, Campbell, and

Global ten-days notice was at most harmless error. First, discovery

was complete, Rowe, Campbell, and Global had filed several pleadings, and the parties had filed timely motions to dismiss and for summary judgment. Second, the parties were convened for trial when the

district court invited AMZCO to move for summary judgment on

Rowe, Campbell, and Global’s fraud claims, and Rowe, Campbell,

and Global should have been well-prepared to put forth a triable issue

of fact in response to an oral motion for summary judgment. Third,

the district court reminded the parties that it had previously expressed

concern about the merits of Rowe, Campbell, and Global’s fraud

14 AMZURA ENTERPRISES, INC. v. RATCHER
claims. (See J.A. at 242-43 ("Now, we have got some other fraud allegations in this case that I have got some question about, as I indicated

to you all when we talked informally. I don’t have any motion from

you-all in regard to some of these fraud claims, but I think we need

to deal with them as well.").) Rowe, Campbell, and Global, therefore,

should not have been surprised by the district court’s action. Under

these circumstances, the district court’s failure to give Rowe, Campbell, and Global ten days’ notice does not warrant reversing the district court’s grant of AMZCO’s oral motion for summary judgment.10

Cf. Portsmouth Square, Inc. v. Shareholders Protective Committee,

770 F.2d 866, 869-70 (9th Cir. 1985) (concluding that the district

court did not err in granting summary judgment sua sponte to defendant without giving ten-days notice to plaintiff where plaintiff was on

notice that it might have to defend the adequacy of its claim and had

a full opportunity to develop the facts in support of its case and to

present its legal theory and facts supporting that theory to the district

court).11

10We also note that Rowe, Campbell, and Global each failed to object

to the district court’s expedited grant of summary judgment. As a result,

they waived their procedural challenges to the district court’s expedited

grant of summary judgment absent a showing of plain error, which is

"error committed [that] is so obvious and substantial that failure to notice

and correct it would affect the fairness, integrity or public reputation of

judicial proceedings." United States v. Fant, 974 F.2d 559, 565 (4th Cir.

1992) (internal quotation marks omitted); see Oberg v. Allied Van Lines,

Inc., 11 F.3d 679, 684 (7th Cir. 1993) (stating that Allied waived its right

to appeal the district court’s noncompliance with the ten-days-notice rule

because it failed to object before the trial court); Trustees of Sabine Area

Carpenters’ Health & Welfare Fund v. Don Lightfoot Home Builder,

Inc., 704 F.2d 822 (5th Cir. 1983) (same). We have no difficulty concluding that even if the district court’s invitation and grant of AMZCO’s

oral motion for summary judgment without 10-days notice was not harmless error, it was certainly not plain error. 

11Rowe and Campbell also argue that because they were pro se litigants, the district court erred in failing to give them notice pursuant to

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (per curiam), prior

to granting AMZCO’s motion for summary judgment. We note, however, that we are unaware of any published decisions in our Circuit

applying Roseboro outside of the prisoner context. See, e.g., Altizer v.

Deeds, 191 F.3d 540 (4th Cir. 1999) (applying Roseboro in the prison

AMZURA ENTERPRISES, INC. v. RATCHER 15
B.

Having concluded that the district court did not commit reversible

procedural error in considering AMZCO’s oral motion for summary

judgment, we now turn to the substance of Rowe, Campbell, and

Global’s state law claims upon which the district court granted summary judgment to AMZCO. Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, demonstrate that there is no

genuine issue of material fact. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986). A dispute of material fact "is ‘genuine’ . . .

if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party." Id. at 248. "We review a grant of summary

judgment de novo, applying the same standard as the district court."

Baber v. Hospital Corp. of America, 977 F.2d 872, 874 (4th Cir.

1992). In doing so, we view all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986). 

1.

Rowe, Campbell, and Global argue that the district court erred in

concluding that there is no triable issue of fact as to their fraud claims.

Rowe, Campbell, and Global’s fraud claims were predicated upon

AMZCO’s failure to return title to the medical vehicles after Rowe

(through Global) sent AMZCO a check to repay AMZCO for its prior

funding.12 (See J.A. at 127N (alleging that "there was a separate oral

contract between Rowe and Campbell and [AMZCO] that upon

repayment by Rowe and Campbell to [AMZCO] of the money loaned,

inmate context), cert. denied, 119 S. Ct. 1121 (1999); Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998) (same); Norman v. Taylor, 25 F.3d

1259 (4th Cir. 1994) (en banc) (same). In any case, for the same reasons

as discussed above, even if we assume that the district court erred in failing to give Rowe and Campbell Roseboro warnings, such error was, at

most, harmless. 

12At the hearing, Global characterized its fraud claim as "derivative"

of Rowe and Campbell’s fraud claims. (J.A. at 250.) 

16 AMZURA ENTERPRISES, INC. v. RATCHER
[AMZCO] would return the title documents to Rowe and Campbell

free and clear of any encumbrances").) The district court, in granting

summary judgment as to those claims, reasoned that "any allegations

about the failure to return title, that is simply a breach of contract matter. I have already found as a matter of summary judgment that they

did in fact breach the contract, but I don’t find anywhere in the evidence any evidence of fraud in that connection." (J.A. at 248.) 

To recover for fraud against AMZCO, Rowe, Campbell, and

Global must prove by clear and convincing evidence the following

elements: (1) a false representation; (2) of a material fact; (3) made

intentionally and knowingly; (4) with intent to mislead; (5) reliance

by the party misled; and (6) resulting damage. Hitachi Credit America

Corp. v. Signet Bank, 166 F.3d 614, 628 (4th Cir. 1999) (applying

Virginia law). "In determining whether a cause of action sounds in

contract or tort, the source of the duty violated must be ascertained."

Richmond Metro. Auth. v. McDevitt Street Bovis, Inc., 507 S.E.2d

344, 347 (Va. 1998). Although a party can, under some circumstances, establish both a tortious breach of duty and a breach of a contract duty, "‘the duty tortiously or negligently breached must be a

common law duty, not one existing between the parties solely by virtue of the contract.’" Id. (quoting Foreign Mission Bd. v. Wade, 409

S.E.2d 144, 148 (Va. 1991)). 

After carefully reviewing the record, we agree with the district

court that Rowe, Campbell, and Global have failed to raise a triable

issue of fact that their claims are anything more than an "‘attempt to

dress up a contract claim in a fraud suit of clothes.’" City of Richmond

v. Madison Management Group, Inc., 918 F.2d 438, 447 (4th Cir.

1990) (quoting Triangle Underwriters, Inc. v. Honeywell, Inc., 604

F.2d 737, 747 (2d Cir. 1979)). Their fraud claims arise from a purported conversation between AMZCO and Rowe, during which

AMZCO allegedly induced Rowe to repay AMZCO with Global’s

money under the false promise that AMZCO would return title to the

medical vehicles for the benefit of Global. Their most direct evidence

on these claims is Campbell’s affidavit, which states simply that

AMZCO "told me that [it] would return the original title documents

. . . as soon as I paid [it] back the money it had provided." (J.A. at

298.) Campbell’s affidavit, at best, shows that AMZCO made an oral

contract that AMZCO subsequently breached. This act, by itself, is

AMZURA ENTERPRISES, INC. v. RATCHER 17
nothing more than a breach of contract. Rowe, Campbell, and Global

have not pointed to any evidence in the record, nor can we find any,

to suggest that AMZCO’s duty to return title to Rowe arose from anything other than a contractual duty, and the district court has ruled in

favor of Rowe and Campbell on their breach of contract counterclaim

and required AMZCO to return title to the medical vehicles. Accordingly, we affirm the district court’s grant of summary judgment as to

Rowe, Campbell, and Global’s fraud claims. 

2.

We next address whether the district court erred in granting summary judgment as to Rowe, Campbell, and Global’s other state law

claims. Because the record before us is unclear, we cannot determine

whether the district court erred in determining that summary judgment is appropriate as to those state law claims. We, therefore,

reverse and remand those claims for further proceedings consistent

with this opinion. 

The district court, both in its statements at the summary judgment

hearing and in its written order, specifically mentioned only Rowe,

Campbell, and Global’s "fraud" claims when it disposed of the entire

case, even though Rowe, Campbell, and Global, between the three of

them, had asserted claims for unjust enrichment, detinue, trover,

unlawful conversion, and tortious interference with contract, as well

as fraud. Although the district court issued a written order memorializing its oral conclusions from the hearing, it did not issue a written

memorandum opinion. It is unclear to us whether, and upon what

rationale, the district court summarily rejected all of Rowe, Campbell,

and Global’s other state law claims. The district court’s written order

does not in any way clarify the district court’s rationale, nor does it

explain whether the disposition of the "fraud" claims encompassed all

of Rowe, Campbell, and Global’s other state law claims. No party

points to any reference in the record where either the district court or

the parties discussed the other claims at the hearing. Given the lack

of clarity in the record, and because the district court is in the best

position to amplify its conclusions, we believe that the best course is

to remand Rowe, Campbell, and Global’s remaining state law claims

for further proceedings consistent with this opinion. 

18 AMZURA ENTERPRISES, INC. v. RATCHER
3.

Finally, because this issue will likely surface on remand, we

address Rowe’s argument that we should reverse the district court’s

grant of summary judgment in favor of AMZCO as to Rowe’s request

for consequential damages because, Rowe contends, under Virginia

law, foreseeability is a question of fact for the jury. On the record

before us, we cannot agree with the district court that, as a matter of

law, Rowe is not entitled to recover consequential damages resulting

from AMZCO’s breach of the financing agreement. We, therefore,

reverse the district court’s grant of summary judgment on Rowe’s

request for consequential damages and remand for further proceedings, contingent on Rowe acquiring counsel to proceed.13

13Campbell, like Rowe, also argues that he should receive consequential damages resulting from AMZCO’s breach of contract. The district

court did not address whether Campbell had standing to pursue his

claims, nor was this issue raised by any of the parties. However, standing

is a jurisdictional issue that we may raise at any time. See Juidice v. Vail,

430 U.S. 327, 331 (1977). On remand, the district court should consider

whether Campbell has standing to recover under the financing contract

or to pursue his state law counterclaims. 

We note that under Virginia law, neither a shareholder nor an officer

has standing to recover for injuries to the corporation. See Landmark

Communications, Inc. v. Macione, 334 S.E.2d 587, 589 (Va. 1985) ("[A]

corporation, as owner and operator of a business, is itself the only person

entitled to recover for injuries to its business, profits, or property.");

Keepe v. Shell Oil Co., 260 S.E.2d 722, 724 (Va. 1979) ("The Keepes

argue that they have legal standing because, as stockholders of the corporation, they are actual owners of the business and all its assets . . . . We

reject this argument. The corporation is a legal person, separate and distinct from the persons who own it . . . ."); see also Semida v. Rice, 863

F.2d 1156, 1161 (4th Cir. 1988) (applying Virginia law to hold that an

individual lacked standing to assert a tortious interference with contract

claim that asserted interference with his corporation’s contract); Mullins

v. First Nat’l Exchange Bank, 275 F. Supp. 712, 721 (W.D. Va. 1967)

(noting, in a tort action under Virginia law, that "[t]he rule is that an officer or a shareholder of a corporation, even if he is the sole shareholder,

has no personal or individual right of action against third parties for a

wrong or injury inflicted by those third parties upon the corporation"). 

AMZURA ENTERPRISES, INC. v. RATCHER 19
We recognize that under Virginia law, the foreseeability of consequential damages is generally a question for the jury. See Richmond

Medical Supply Co. v. Clifton, 369 S.E.2d 407, 409 (Va. 1988)

("Whether claimed damages are direct or consequential is a question

of law for the trial court. Whether special circumstances were within

the contemplation of the parties so as to justify the recovery of consequential damages is a question of fact for the jury."). "Consequential

damages are those which arise from the intervention of ‘special circumstances’ not ordinarily predictable . . . . If damages are determined to be consequential, they are compensable only if it is

determined that the special circumstances were within the ‘contemplation’ of both contracting parties." Roanoke Hosp. Ass’n v. Doyle

& Russell, Inc., 214 S.E.2d 155, 160 (Va. 1975). "‘[C]ontemplation’

includes what was actually foreseen and what was reasonably foreseeable. ‘If there are special circumstances, it is not even necessary that

the defendant should have known them; it is enough that a reasonable

man in his position would have known them.’" Id. at 160 n.4 (quoting

5 A. Corbin, Contracts § 1010(79) (1964)) (emphasis in original). In

general, "contemplation must exist at the time the contract was executed." Id. at 160. 

In the present case, the district court summarily rejected Rowe’s

request for consequential damages resulting from AMZCO’s breach

In the present case, we cannot determine from the undeveloped facts

in the record whether Campbell has standing to pursue his claims. On the

one hand, the contract between Rowe and AMZCO, in a single sentence,

lists Campbell as a "borrower" under the contract. Likewise, the July 26

amendment purports to obligate Campbell to assign his proceeds under

the Army Contract to AMZCO. Yet, Campbell signed the contract only

in his capacity as Rowe’s president and not in his individual capacity.

Moreover, Rowe and Campbell’s amended answer and counterclaims

deny "that Campbell acted, at any time, in his individual capacity." (J.A.

at 127C.) Finally, Campbell and Rowe’s counsel, when specifically

asked at oral argument about the basis of Campbell’s individual claims,

stated that Campbell’s claims are only representational in nature in his

capacity as an officer of the company on behalf of Rowe, and that Campbell does not have any individual claims against AMZCO that are separate and distinct from Rowe’s claims. 

20 AMZURA ENTERPRISES, INC. v. RATCHER
of the financing agreement, concluding as a matter of law that the circumstances — the Army’s termination of the contract and Rowe’s

subsequent financial collapse — were not foreseeable.14 AMZCO

does not dispute that foreseeability is generally a question of fact for

the jury, but it argues that the district court did not err because Rowe

"failed to meet the legal standard required to present a question of fact

to the jury as to whether the ‘special circumstances’ that produced the

damages were within the contemplation of the parties and therefore,

compensable." (Appellee’s Br. at 20.) In support of this argument,

AMZCO relies upon NAJLA Assocs., Inc. v. William L. Griffith &

Co., 480 S.E.2d 492 (Va. 1997). In that case, Griffith was a general

contractor for NAJLA for a project to construct a shopping center. See

id. at 493. After Griffith and its bonding company became concerned

that NAJLA intended to finance the project without a loan from any

financial institution, Griffith and NAJLA executed an escrow agreement that created an identifiable source of money to secure NAJLA’s

payment obligations from which Griffith could obtain payment if

NAJLA failed to pay in a timely manner. See id. After construction

was nearly completed and NAJLA refused to pay Griffith, Griffith

received payment from the escrow account. See id. The escrow agreement required NAJLA promptly to reimburse the escrow account for

any payments made to Griffith from that account, but NAJLA refused

to do so. See id. Griffith subsequently filed suit against NAJLA seeking consequential damages arising from NAJLA’s breach of the

escrow agreement. See id. Griffith alleged, among other things, that

as a result of its dispute with NAJLA, its bonding company reduced

its "work program" (the total volume of bonded business that a bonding company permits a contractor to perform), that certain subcontractors were no longer willing to work with Griffith because Griffith had

been delinquent in its payments on the project, and that Griffith experienced cash flow problems. See id. at 494. The gist of Griffith’s

claim was that "NAJLA understood the importance of Griffith’s relationship with its bonding company and that the manipulation of the

14The district court stated that "I simply find that it is just not foreseeable that somebody is going to go out of business as a result of this

breach of contract, and it is not a natural consequence of that breach.

And I just so find. That is just not an element of damage in this case."

(J.A. at 263.) The district court’s written order states only that the damages "were not foreseeable as a matter of law." (J.A. at 278.) 

AMZURA ENTERPRISES, INC. v. RATCHER 21
escrow account would significantly impair that relationship to Griffith’s detriment." Id. (internal quotation marks omitted). The jury

found in Griffith’s favor and the trial court upheld the verdict. See id.

The Supreme Court of Virginia, however, reversed the trial court’s

judgment, concluding that "Griffith presented no evidence which

would permit the jury to find that when the contracting parties signed

the escrow agreement, they contemplated that had NAJLA breached

that agreement, such breach would have restricted Griffith’s ‘work

program,’ thereby preventing Griffith from bidding on projects." Id.

The court further noted that "Griffith did not present any evidence

that NAJLA was even aware of Griffith’s ‘work program’ when the

escrow agreement was executed," id., and that Griffith failed to present evidence "that either party to the contract contemplated that Griffith’s future costs for subcontractors would increase as a result of

NAJLA’s breach of the escrow agreement," id. at 494-95, or that

either party contemplated that Griffith would later experience cash

flow problems, see id. at 495. 

The facts in the record before us are distinguishable from NAJLA.

First, Griffith’s allegations were predicated upon future injuries that

were removed from the underlying escrow agreement that NAJLA

had breached — i.e., that Griffith could not bid on certain projects

because of the "work program" and that it faced higher costs in retaining subcontractors for future projects. Rowe’s injuries, by contrast,

are arguably much closer to the underlying breach. It follows naturally from AMZCO’s breach of the financing agreement that Rowe

could not pay its suppliers for the Army Contract itself (the intent for

which the financing agreement was signed), and that Rowe would be

subject to lawsuits and other related problems. Second, because the

financing contract in this case was intended, from the beginning, to

fund the Army Contract and its related costs, a plausible argument can

be made, on the facts presently before us, that the parties contemplated that AMZCO’s breach of the financing contract would impede

Rowe’s ability to pay its bills and fulfill its obligations under the

Army Contract. We simply cannot agree, at this stage of the proceedings, that Rowe’s claim for consequential damages must fail as a matter of law.15 See R.K. Chevrolet, Inc. v. Hayden, 480 S.E.2d 477, 481

15We recognize the possibility that, on remand, further facts may surface that might establish that Rowe cannot recover consequential damages for AMZCO’s breach of contract. 

22 AMZURA ENTERPRISES, INC. v. RATCHER
(Va. 1997) (reversing trial court’s conclusion that R.K. Chevrolet, as

a matter of law, could not recover consequential damages because

"[a] jury reasonably could conclude that the sole purpose of the contract was to prevent a loss of business and the resulting damages to

R.K. Chevrolet and that both parties contemplated the potential for

such damages at the time they entered into the contract"); Richmond

Medical Supply, 369 S.E.2d at 409 ("Thus, having properly determined that RMS’s claimed damages were consequential in nature, the

trial court erred in failing to submit the ‘contemplation’ issue to the

jury . . . ."). Accordingly, we reverse and remand this issue to the district court for further proceedings consistent with this opinion. 

IV.

In conclusion, Rowe’s notice of appeal is not jurisdictionally defective because Rowe promptly filed a corrected notice of appeal. We

affirm the district court’s grant of summary judgment as to Rowe,

Campbell, and Global’s fraud claims, but we remand Rowe, Campbell, and Global’s other state law claims. We reverse and remand the

district court’s conclusion that, as a matter of law, consequential damages for AMZCO’s breach of the financing agreement are not available.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED

AMZURA ENTERPRISES, INC. v. RATCHER 23