UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2321

TRIAD PACKAGING, INCORPORATED; LOUIS WETMORE,

Plaintiffs – Appellants,

v.

SUPPLYONE, INCORPORATED,

Defendant – Appellee,

and

DAVIDSON, HOLLAND & WHITESELL & CO., PLLC,

Respondent,

v.

DURHAM BOX COMPANY, INCORPORATED,

Third Party Defendant – Appellant.

No. 13-2362

TRIAD PACKAGING, INCORPORATED; LOUIS WETMORE,

Plaintiffs – Appellees,

v.

SUPPLYONE, INCORPORATED,

Defendant – Appellant,

v.
2

DURHAM BOX COMPANY, INCORPORATED,

Third Party Defendant – Appellee.

Appeals from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:10−cv−00005−RLV−DCK)

Argued: October 30, 2014 Decided: January 23, 2015

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

opinion. Judge Diaz wrote the opinion, in which Judge Duncan 

and Judge Keenan joined.

ARGUED: Matthew Kyle Rogers, Hickory, North Carolina, for 

Appellants/Cross-Appellees. John Scott Kingston, THOMPSON 

COBURN LLP, St. Louis, Missouri, for Appellee/Cross-Appellant. 

ON BRIEF: Mark W. Kinghorn, MCGUIREWOODS LLP, Charlotte, North 

Carolina, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.
3

DIAZ, Circuit Judge:

The case before us is facially complex but in reality 

involves a straightforward breach of contract action. In the 

district court, Louis Wetmore sought to recover damages from a 

bad deal, in which he sold the assets of his two companies, 

Triad Packaging, Inc., and Durham Box Company, Inc., to 

SupplyONE, Inc. SupplyONE, in turn, filed counterclaims to 

recover what Wetmore allegedly owed under their purchase 

agreement.

The district court granted summary judgment on the majority 

of Wetmore’s claims against SupplyONE but allowed the parties’ 

respective breach of contract claims to proceed to trial. The 

jury returned verdicts against both parties, apportioning 

damages accordingly.

We affirm the district court’s order of summary judgment, 

as well as the jury’s verdict and the damages award to 

SupplyONE. However, we vacate the jury’s award to Wetmore for 

“contractual damages,” as we can discern no basis for that 

award.

I.

Wetmore is the owner and majority shareholder of Triad

Packaging and Durham Box Company, two companies formerly engaged 

in manufacturing and supplying cardboard boxes used in 
4

commercial packaging and shipping in North Carolina and South 

Carolina. In late 2007, Wetmore entered into discussions to 

sell the assets of his companies to SupplyONE, a national 

company also engaged in the corrugated box industry. These 

discussions were memorialized by a letter of intent, signed in 

April 2008, which contemplated closing in July of that year. 

The letter also proposed a purchase price of $3.5 million. 

During the due diligence period, however, SupplyONE 

determined that the deal was not as advantageous as it had 

originally thought. It therefore obtained Wetmore’s agreement

to extend the deadline for closing and recommenced negotiations, 

resulting in an adjusted purchase price of just over $3 million. 

The deal finally closed in October 2008 with the signing of an 

Asset Purchase Agreement.

The agreement contained the following relevant provisions:

• Section 2.6 provided for a purchase price of 

$3,094,350.52, payable by (1) a promissory note in the 

amount of $100,000, due to mature in October 2013, (2) 

$175,000 in an escrow account to cover any postclosing price adjustments, and (3) cash payments.

• Section 2.7 provided three avenues for price 

adjustment on or after closing: 

1. If, after preparing a “Closing Date Balance Sheet,” 

it was discovered that the assets delivered to 

SupplyONE fell below the minimum amount provided by 

the agreement ($727,000), Wetmore would be required 

to make up the difference. The agreement required 

SupplyONE to provide the balance sheet to Wetmore 

within 60 days of closing.
5

2. Any unsold or obsolete inventory and uncollected 

accounts receivable remaining 180 days after closing 

would be returned to Wetmore, who would reimburse 

SupplyONE for their value.

3. The value of inventory and accounts receivable 

attributable to one particular client (“AP Exhaust”) 

would not be included in the assets transferred, and 

their value would be deducted from the purchase 

price.

• Section 2.8 provided for allocations of the purchase 

price among the purchased assets and required 

SupplyONE to prepare the appropriate IRS form within 

90 days of closing.

• Section 6.10 required SupplyONE to use its best 

efforts to sell inventory and to collect accounts 

receivable it assumed as part of the sale.

• Section 6.11 required both parties to provide 

reasonable access to information for the purpose of 

concluding the transaction.

In addition, as part of the sale, Wetmore and SupplyONE entered 

into an employment agreement, under which Wetmore would remain 

with the company for several years in a sales capacity.

Following closing, the parties disputed the amounts by 

which the price should be adjusted under Section 2.7. 

Initially, SupplyONE failed to produce the balance sheet within 

the time-frame provided by the agreement. As a result, Wetmore 

disputed the extent of any asset deficiency and refused to 

reimburse SupplyONE for either the alleged deficiency or for the 

value of the unsold inventory and uncollected accounts 

receivable. Eventually, SupplyONE instituted claim proceedings 
6

under the escrow agreement to recover the amounts it alleged it 

was owed.

In response, Wetmore filed suit in North Carolina state 

court, alleging four claims: (1) unjust enrichment, (2) breach 

of contract, (3) fraud, and (4) unfair and deceptive trade 

practices. SupplyONE removed the case to federal court and 

asserted counterclaims for breach of contract and breach of 

warranty. On multiple motions for summary judgment by both 

parties, the district court dismissed Wetmore’s first, third, 

and fourth claims but allowed the parties’ remaining claims to 

proceed to trial.1

After a seven-day trial, the jury returned verdicts for 

both Wetmore and SupplyONE. Specifically, the jury found that 

SupplyONE breached the agreement in four ways: (1) it did not 

produce the balance sheet within 60 days of closing, (2) it did 

not provide the allocation of purchase price IRS form within 90 

days of closing, (3) it did not provide Wetmore post-closing 

access to information, and (4) it breached its implied covenant 

of good faith and fair dealing. However, the jury rejected 

Wetmore’s claims that SupplyONE breached the purchase agreement 

by failing to correctly adjust the purchase price for unsold 

 1 However, because SupplyONE voluntarily dismissed its 

breach of warranty claim during trial, only its breach of 

contract claim was submitted to the jury.
7

inventory, uncollected accounts receivable, and assets related 

to the AP Exhaust client. In addition, it rejected Wetmore’s 

individual claim that SupplyONE breached their employment 

agreement. The jury awarded Wetmore $211,363 in “contractual 

damages,” in addition to $123,571 from the escrow account.

The jury also found that Wetmore breached the agreement by 

failing to pay SupplyONE for the asset deficiency, the 

uncollected accounts receivable, and the unsold inventory. The 

jury awarded SupplyONE $332,605 in damages to satisfy the price 

adjustment provisions of the agreement.

The district court denied the parties’ post-trial motions, 

affirmed the jury’s verdicts, and entered judgment in the 

amounts awarded at trial.2

 

II.

Wetmore asserts ten issues on appeal, the majority of which 

are either duplicative or underdeveloped. For example, Issues 

II, III, IV, and VII--all essentially challenging the district 

court’s refusal to allow Wetmore to introduce at trial evidence 

and arguments relevant to his claims disposed of at summary 

 2 In addition, the district court ordered SupplyONE to pay 

the outstanding promissory note owed to Wetmore, resulting in a 

total award to Wetmore of $464,911. The court also ordered that 

the remainder of the escrow account be distributed to SupplyONE, 

for a $384,034 total award to SupplyONE.
8

judgment--are supported by bare assertions of error in no more 

than two paragraphs of Wetmore’s opening brief. Consequently, 

we do not consider them here. See Edwards v. City of Goldsboro, 

178 F.3d 231, 241 n.6 (4th Cir. 1999) (finding that a party 

abandons all claims that do not conform with the “specific 

dictates” of Federal Rule of Appellate Procedure 28, which, in 

pertinent part, mandates “citations to the authorities . . . on 

which the appellant relies”). Further, Wetmore’s failure to 

make any argument in his opening brief with respect to Issue IX-

-that the district court erred in denying his motion for 

interest, costs, and attorneys fees--effectively waives that 

issue. See Hillman v. I.R.S., 263 F.3d 338, 343 n.6 (4th Cir. 

2001) (citing Edwards, 178 F.3d at 241 n.6).

However, we identify two broad issues warranting 

discussion: (1) Wetmore’s contention that the district court 

erroneously granted summary judgment to SupplyONE on Wetmore’s 

unjust enrichment, fraud, and unfair and deceptive trade 

practices claims (presented in Wetmore’s Issue I) and (2) 

Wetmore’s argument that the court should not have denied his 

renewed motions for judgment as a matter of law (presented in 

Issues V, VI, VIII, and X). We also address SupplyONE’s crossappeal seeking reversal of the jury’s “contractual damages” 

award to Wetmore.
9

Because this case comes to us through our diversity 

jurisdiction, we apply North Carolina law.3 Ellis v. LouisianaPacific Corp., 699 F.3d 778, 782 (4th Cir. 2012).

A.

Wetmore contends that the district court improperly granted 

summary judgment to SupplyONE on Wetmore’s claims for unjust 

enrichment, fraud, and unfair and deceptive trade practices. We 

review the district court’s grant of summary judgment de novo. 

Long v. Dunlop Sports Grp. Ams., Inc., 506 F.3d 299, 301 (4th 

Cir. 2007). Despite vociferous arguments to the contrary, 

Wetmore cannot make out a prima facie case of unjust enrichment, 

nor can he point to evidence in the record amounting to fraud or 

unfair or deceptive trade practices in the formation or 

performance of the purchase agreement. 

1.

The equitable claim of unjust enrichment provides relief 

where one party confers a benefit on the other party but the 

injured party cannot make out a claim for breach of contract. 

Booe v. Shadrick, 369 S.E.2d 554, 556 (N.C. 1988). Such a claim 

 3 Although the purchase agreement provides that Delaware law 

governs any dispute, both parties and the district court have 

applied North Carolina law throughout the course of this 

proceeding. See Triad Packaging, Inc. v. SupplyONE, Inc., 925 

F. Supp. 2d 774, 786 (W.D.N.C. 2013). Because the parties do 

not contest the application of North Carolina law, we do not 

address the issue further.
10

is often referred to as one in quasi-contract or a contract 

implied in law. Id. Critically, however, for a claim in quasicontract to sound, no express contract must exist: “If there is 

a contract between the parties the contract governs the claim 

and the law will not imply a contract.” Id.; see also Whitfield 

v. Gilchrist, 497 S.E.2d 412, 415 (N.C. 1998). 

Wetmore contends that SupplyONE’s actions inconsistent with 

the parties’ letter of intent--failure to close by July 2008, 

and failure to pay the original purchase price of $3.5 million--

resulted in SupplyONE’s unjust enrichment. However, this claim 

fails because the Asset Purchase Agreement functioned as an 

express contract governing the parties’ entire arrangement.

The following facts support this conclusion. First, the 

letter of intent expressly states that, with the exception of 

provisions regarding confidentiality, non-solicitation, and 

professional fees, the letter is non-binding. Second, the 

letter was followed by the purchase agreement, which includes an 

integration clause providing that the agreement “sets forth the 

entire understanding of the parties . . . and supersedes all 

prior agreements or understandings among the parties.” J.A. 

135. Finally, Wetmore himself alleged in the complaint that the 

purchase agreement “was a contract entered into by and between 

the Plaintiffs and Defendant SupplyONE.” J.A. 9. 
11

As both parties, at least in the initial pleadings, agreed

on the existence of a contract--the Asset Purchase Agreement--

that contract governs. We therefore conclude that the district 

court correctly granted summary judgment on Wetmore’s claim of 

unjust enrichment.

2.

Wetmore’s fraud claim is based on SupplyONE’s (1) alleged 

misrepresentations in the letter of intent (the $3.5 million 

purchase price and the earlier closing date), (2) failure to 

immediately disclose its misgivings about the original terms of 

the deal, and (3) alleged misrepresentations regarding its 

performance of certain terms in the purchase agreement. We 

agree with the district court that Wetmore’s fraud claim fails 

as a matter of law.

An action for fraud must be predicated on a misstatement 

regarding a “subsisting or ascertainable fact” as opposed to 

representations relating to future conduct. Ragsdale v. 

Kennedy, 209 S.E.2d 494, 500 (N.C. 1974). Indeed, we have 

instructed that “[t]he mere failure to carry out a promise in 

contract . . . does not support a tort action for fraud.” Strum 

v. Exxon Co., 15 F.3d 327, 331 (4th Cir. 1994) (applying North

Carolina law). 

Here, SupplyONE’s statements regarding the sale price and 

closing date in the letter of intent are classic projections, 
12

exemplified by the letter’s non-binding nature. They cannot, 

therefore, form the basis of a fraud claim. Further, Wetmore’s 

claimed reliance on the letter’s closing date--or on SupplyONE’s 

alleged failure to disclose its eventual desire to renegotiate 

the deal--is expressly negated by the fact that he later signed 

an agreement to extend the closing deadline. Finally, despite 

his contentions that SupplyONE never intended to follow through 

on its representations in the letter of intent, Wetmore has been 

unable to adduce any evidence to that effect. 

In essence, Wetmore is trying to convert his breach of 

contract claim to a tort claim by arguing that SupplyONE did not 

follow through on material terms in the agreement. Appellant’s 

Br. at 38 (asserting that SupplyONE “committed fraud relating to 

general performance of the [purchase agreement]”). In Strum, 

where a plaintiff similarly tried to “shoehorn [his] case into a 

tort framework,” we cautioned against this approach, concluding 

that an “attempt to turn a contract dispute into a tort action 

with an accompanying punitive dimension is inconsistent both 

with North Carolina law and sound commercial practice.” Strum, 

15 F.3d at 329. We likewise reject such an attempt here.

3.

Finally, Wetmore fails to substantiate his claim under 

North Carolina’s Unfair and Deceptive Trade Practices Act

(“UDTPA”), N.C. Gen. Stat. § 75-1.1 et seq. This claim is based 
13

on allegations similar to those Wetmore makes for his fraud 

claim: essentially, that SupplyONE’s misrepresentations and 

delay forced Wetmore to settle for a deal with terms less 

lucrative than those he had originally agreed to. We find that

Wetmore cannot show SupplyONE violated the UDTPA.

The UDTPA prohibits “unfair or deceptive acts or practices 

in or affecting commerce.” N.C. Gen. Stat. § 75-1.1(a). We 

have held that only practices involving “some type of egregious 

or aggravating circumstances” violate the UDTPA. S. Atl. Ltd. 

P’Ship of Tenn. v. Riese, 284 F.3d 518, 535 (4th Cir. 2002)

(alteration omitted) (quoting Dalton v. Camp, 548 S.E.2d 704, 

711 (2011)). Moreover, we have emphasized that garden-variety 

breaches of contract “rarely” violate the statute. See id. at 

536.

Here, Wetmore argues that SupplyONE’s delay in closing was 

the fountainhead of the wrong and amounted to an aggravating 

circumstance that violated the UDTPA. He cannot, however, show 

any actions by SupplyONE that constitute egregious circumstances 

beyond normal deliberations and negotiations (and the 

corresponding adjustments in terms) that accompany a transaction 

of this nature.

Wetmore also devotes significant time to the novel 

argument, first identified in his post-trial “Motion for 

Judgment Conforming with the Evidence,” that SupplyONE’s lawsuit 
14

against Wetmore for indemnification--filed in the Western 

District of Pennsylvania and recently dismissed on grounds of 

res judicata--demonstrates “post-verdict” unfair and deceptive 

actions that should invalidate the court’s earlier summary 

judgment motion. However, Wetmore provides no authority 

supporting this notion, and as such, we decline to consider it. 

See Edwards, 178 F.3d at 241 n.6.

We conclude that the district court correctly granted 

summary judgment on Wetmore’s claims for unjust enrichment, 

fraud, and unfair and deceptive trade practices.

B.

Wetmore further contends that the district court erred in 

denying his motion for a directed verdict on SupplyONE’s 

counterclaim for breach of contract. According to Wetmore, the 

verdict against him on the counterclaim was erroneous because 

SupplyONE’s “prior uncured breach” discharged his obligation to 

pay amounts owed to SupplyONE under the agreement, and the jury 

erroneously concluded that SupplyONE did not breach the 

provision of the agreement requiring “best efforts” to collect 

accounts receivable and sell inventory.4

 4 Wetmore also asserts for the first time on appeal that the 

jury’s verdict on the counterclaim was based on an incorrect 

construction of an “ambiguous” net asset threshold amount in the 

agreement. His failure to raise this point of error before the 

district court waives our review of the issue. See United 

(Continued)
15

Although Wetmore presents these issues in a pre-verdict 

posture, they arise from the district court’s denial of 

Wetmore’s post-verdict, renewed motion for judgment as a matter 

of law under Federal Rule of Civil Procedure 50(b). We review 

the denial of a motion for judgment as a matter of law de novo, 

viewing the evidence in the light most favorable to the nonmoving party. See Konkel v. Bob Evans Farms, Inc., 165 F.3d 

275, 279 (4th Cir. 1999). We may not disturb a verdict where 

sufficient evidence could support a reasonable jury’s finding in 

favor of the non-movant. Dotson v. Pfizer, Inc., 558 F.3d 284, 

292 (4th Cir. 2009). We conclude that the district court 

properly denied Wetmore’s motion.

1.

Wetmore first urges that SupplyONE never cured its failures 

to provide a closing date balance sheet and to provide him postclosing access to information. According to Wetmore, this 

“prior uncured breach” discharged his obligation to pay 

SupplyONE the amounts he owed under the price adjustment 

provisions of the agreement. We think the evidence supports a 

conclusion that SupplyONE eventually remedied its failure, and 

therefore Wetmore was not relieved of his obligation. 

 

States ex rel. Bunk v. Gosselin World Wide Moving, N.V., 741 

F.3d 390, 405 (4th Cir. 2013).
16

The “general rule” of bilateral contracts is that if either 

party materially breaches a contract, the other party is not 

required to perform further. Williams v. Habul, 724 S.E.2d 104, 

112 (N.C. Ct. App. 2012). In addition, “[i]t is a salutary rule 

of law that one who prevents the performance of a condition, or 

makes it impossible by his own act, will not be permitted to 

take advantage of the nonperformance.” Mullen v. Sawyer, 178 

S.E.2d 425, 431 (N.C. 1971) (quoting Harwood v. Shoe, 53 S.E. 

616, 616 (N.C. 1906)). However, such a failure will discharge 

the other party’s performance only so long as the deficiency 

remains uncured. See, e.g., Restatement (Second) of Contracts 

§ 242 cmt. a (1981) (a party’s remaining duties are not 

discharged if the other party cures its breach in a timely 

manner).

At trial, there was no dispute that SupplyONE failed to 

provide a balance sheet within 60 days of closing, or that 

Wetmore refused to reimburse SupplyONE for any net asset 

deficiency. Moreover, the district court instructed the jury 

that SupplyONE’s breach of its obligation to supply the balance 

sheet could operate to excuse Wetmore’s failure to fulfill his 

obligations under the price adjustment provisions of the 

purchase agreement. Nevertheless, although the jury found 

SupplyONE breached this portion of the purchase agreement by not 

providing the balance sheet “within 60 days of closing,” it also 
17

found Wetmore breached its subsequent obligation to reimburse 

SupplyONE under the price adjustment provisions of the 

agreement. J.A. 2764–770. Wetmore argues that SupplyONE’s 

complete failure to provide him a balance sheet prevented him

from performing, and therefore the jury’s finding that he 

breached the section of the agreement was unreasonable. We 

disagree. 

First, the record shows that SupplyONE engaged in 

preliminary and final calculations in an effort to create a 

closing date balance sheet. Specifically, internal emails in 

January 2009 show spreadsheets calculating the assets and 

liabilities Wetmore transferred at closing, as well as the 

subsequent net asset shortfall. Moreover, correspondence 

between Wetmore and SupplyONE in May and June 2009--in which 

Wetmore disputed SupplyONE’s claims of a net asset deficiency--

suggests that Wetmore received accounting information, at the 

very latest, during an April 2009 meeting between Wetmore and 

SupplyONE representatives.

Although Wetmore may not have received a document titled 

“Closing Date Balance Sheet,” the record shows that Wetmore 

received post-closing balance sheet information, which allowed 

him to commence discussions on the proper valuation of the net 

assets transferred. Consequently, the jury’s verdict that 
18

Wetmore breached his obligation by refusing to pay any net asset 

deficiency is supported by substantial evidence. 

2.

Wetmore further argues that the district court erred in 

denying him judgment as a matter of law with respect to his 

claim that SupplyONE breached its obligation to use “best 

efforts” to collect accounts receivable and sell inventory. 

Critically, the purchase agreement does not define the term 

“best efforts.” As a result, the court instructed the jury that 

it must “ultimately decide what the parties intended by 

including the best efforts standard” but that best efforts 

generally means “diligent attempts to carry out an obligation.” 

J.A. 2335.

Here, the jury heard testimony from Forest Hammer, the 

president of SupplyONE’s North Carolina subsidiary, that 

SupplyONE used its best efforts to resolve the old inventory and 

outstanding accounts receivable transferred as part of the sale. 

Specifically, Hammer testified that although much of the 

problematic inventory was obsolete, the company had sales 

representatives and managers reach out to customers about 

purchasing it. In addition, employees in the accounting 

department “worked . . . diligently for days and weeks” to 

collect accounts receivable. J.A. 2160. Overall, Hammer 

testified that
19

[e]verybody had looked into the receivables. 

Everybody had done a very thorough effort for 

collections. Up to this point everybody had tried to 

dispose of the inventory in every way which we knew 

how.

J.A. 2152. Indeed, Hammer noted that SupplyONE made an “all 

American” and “extraordinary effort” to recover these assets. 

J.A. 2159–60. 

We disagree with Wetmore’s contention that because 

SupplyONE did not use the same procedures Wetmore used to 

collect old accounts or to move unsold or obsolete inventory, 

SupplyONE did not use its best efforts. Hammer’s testimony, in 

particular, demonstrates SupplyONE’s diligence. Consequently, 

the jury was entitled to rely on this testimony to conclude that 

SupplyONE met its best efforts obligation.

III.

Finally, SupplyONE argues that the record evidence does not 

support the jury’s award of $211,363 in “contractual damages” to 

Wetmore. A jury’s damage award should stand unless “no 

substantial evidence is presented to support it, it is against 

the clear weight of the evidence, it is based upon evidence that 

is false, or it will result in a miscarriage of justice.” 

Barber v. Whirlpool Corp., 34 F.3d 1268, 1279 (4th Cir. 1994). 

However, a jury may not award damages where the evidence allows 
20

no more than speculation as to the amount. Weyerhaeuser Co. v. 

Godwin Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977). 

The jury’s award to Wetmore included two components. 

First, the jury awarded $123,571 from the escrow account. 

Second, the jury awarded $211,363 in unspecified “contractual 

damages.” 

Here, the only evidence regarding damages came from 

Wetmore, whose testimony focused on three specific requests. 

First, conceding that he owed SupplyONE a net asset deficiency 

of $51,429, Wetmore sought $123,571 of the funds held in the 

escrow account. Second, he sought $129,977 owed to him under 

the promissory note (including both principal and interest). 

Finally, he sought $480,000 in damages relating to SupplyONE’s 

alleged breach of the employment agreement. These were the only 

damages requested by Wetmore’s attorney in his closing argument.

This testimony clearly supports the jury’s award of the 

escrow monies to Wetmore. However, we can find no evidence 

supporting the remaining $211,363 of the jury’s award. Although 

the district court and Wetmore have identified a number of 

potential bases for the award, we find none of them persuasive. 

Initially, we do not accept the district court’s conclusion 

and Wetmore’s contention that the $211,363 award was reasonable 

because SupplyONE’s breaches “frustrated” Wetmore from “proving 

up actual damages” and prevented calculation of the amounts owed 
21

under the purchase agreement “with mathematical certainty.” 

Although it may be true that SupplyONE’s breaches hindered 

calculation of the purchase price adjustments, Wetmore testified 

that he was owed an exact sum from the escrow account--$123,571-

-and the jury awarded that sum. Consequently, that portion of 

the award grappled with and resolved whatever uncertainty 

surrounded Wetmore’s damages. The deficiency in the remaining 

$211,363 of the award lies not in its lack of certainty but in 

its lack of evidentiary foundation.

Further, we reject the district court’s reasoning that the 

damages could be based on SupplyONE’s breach of the implied 

covenant of good faith and fair dealing. No evidence adduced at 

trial showed concrete damages stemming from SupplyONE’s breach 

of that covenant. See Thrower v. Coble Dairy Prods. Coop., 

Inc., 105 S.E.2d 428, 431 (N.C. 1958) (“[W]here actual pecuniary 

damages are sought, there must be evidence of their existence 

and extent, and some data from which they may be computed.”

(internal quotation marks omitted)). In our view, the district 

court’s conclusion that SupplyONE’s bad-faith actions in 

refusing to use a third-party accountant, failing to mediate, or 

attempting to recover rent could support a damages award is

based more on a punitive theory of tortious injury than actual 

contractual damages. See, e.g., Newton v. Standard Fire Ins. 
22

Co., 229 S.E.2d 297, 301 (N.C. 1976) (punitive damages not 

allowed for breach of contract).

Finally, we find meritless Wetmore’s speculation that the 

jury intended to compensate him for breach of the employment 

agreement. The jury’s verdict expressly rejected this claim.

Thus, any contention that the jury’s $211,363 award was premised 

on this non-existent breach is nonsensical. 

Because nothing in the record supports the jury’s award of 

an additional $211,363 in damages to Wetmore, we conclude that 

the award has no reasonable basis. 

IV.

For these reasons, we affirm the district court’s order of 

summary judgment and the majority of the jury’s verdict, 

vacating only the award of “contractual damages,” to Wetmore. 

We remand the case to the district court for entry of judgment 

accordingly.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED