UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1484

ORTECK INTERNATIONAL, INCORPORATED, a Maryland Corporation; 

VENETIAN INVESTMENTS, LLC, a Maryland Limited Liability 

Company,

Plaintiffs – Appellants,

v.

TRANSPACIFIC TIRE & WHEEL, INCORPORATED, a California 

Corporation; GITI TIRE CHINA, a/k/a Grandtour Tire China, 

An Alien Corporation; BRIAN CHAN, an Individual; GITI TIRE 

(USA) LIMITED,

Defendants – Appellees.

No. 10-1489

TRANSPACIFIC TIRE & WHEEL, INCORPORATED,

Plaintiff – Appellee,

v.

ORTECK INTERNATIONAL, INCORPORATED, a Maryland Corporation,

Defendant – Appellant,

and

SONNY VEEN, an Individual; DOES 1 THROUGH 50, inclusive,

Defendants.
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No. 10-1912

TRANSPACIFIC TIRE & WHEEL, INCORPORATED,

Plaintiff – Appellee,

v.

ORTECK INTERNATIONAL, INCORPORATED, a Maryland Corporation,

Defendant – Appellant,

and

SONNY VEEN, an Individual; DOES 1 THROUGH 50, inclusive,

Defendants.

Appeals from the United States District Court for the District 

of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District 

Judge. (8:05-cv-02882-DKC; 8:06-cv-00187-DKC)

Argued: October 27, 2011 Decided: November 17, 2011

Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: John Michael Kotzker, LAW OFFICES OF JOHN M. KOTZKER, 

P.A., Raleigh, North Carolina, for Appellants. Alec Winfield 

Farr, BRYAN CAVE, LLP, Washington, D.C., for Appellees. ON 

BRIEF: Jacob A. Kramer, BRYAN CAVE, LLP, Washington, D.C., for 

Appellees Transpacific Tire & Wheel, Incorporated, and Brian 

Chan; Peter L. Winik, LATHAM & WATKINS LLP, Washington, D.C., 

for Appellees GITI Tire China and GITI Tire (USA) Limited.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

The actions in this consolidated appeal arose after the 

business relationship failed between TransPacific Tire & Wheel, 

Inc. (TransPacific), a California corporation in the business of 

purchasing certain brands of tires from China and distributing 

them in North America, and Orteck International, Inc. (Orteck), 

a Maryland corporation in the business of distributing tires. 

From February 2003 to March 2005, Orteck was one of 

TransPacific’s customers. As a customer, Orteck bought tires 

from TransPacific and sold them to a number of downstream tire 

distributors.

The first action (TransPacific v. Orteck

In its amended complaint, TransPacific asserted Maryland 

state law claims for, among other things, breach of contract and 

conversion. TransPacific’s two breach of contract claims 

alleged that Orteck breached several contracts for its purchases

of tires from TransPacific. TransPacific contended that 

contracts existed between the parties because Orteck sent 

TransPacific written purchase orders for tires, which 

) began on August 

17, 2005, when TransPacific filed suit against Orteck in the 

United States District Court for the Central District of 

California. An amended complaint was filed in October 2005. In 

January 2006, the case was transferred to the United States 

District Court for the District of Maryland.
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constituted offers for contracts, and TransPacific accepted 

those contracts by fulfilling Orteck’s orders. TransPacific 

alleged that Orteck breached those contracts by not remitting 

payment to TransPacific for the tires.

In its conversion claim, TransPacific alleged that Orteck 

sold all of the tires owned by TransPacific that were stored at 

a warehouse in Maryland (the Maryland Warehouse), but did not 

pay TransPacific for those tires. TransPacific argued that 

Orteck was liable for conversion because: (1) Orteck was a 

consignee who failed to return or pay for consigned goods; and 

(2) even if the parties’ alleged consignment agreement was 

invalid, Orteck intentionally exerted unlawful control over 

TransPacific’s property in denial of TransPacific’s right to the 

property.

On March 30, 2010, the district court granted summary 

judgment to TransPacific and awarded damages to TransPacific in 

the amount of $2,200,360.07 ($475,129.71 on the breach of 

contract claims, and $1,725,231.00 on the conversion claim) plus 

prejudgment interest. With respect to the breach of contract 

claims, the district court concluded that Orteck entered into 

several contracts with TransPacific. The district court noted 

that, for each contract, Orteck sent a written purchase order 

for tires to TransPacific. Orteck’s purchase order constituted 

an offer to enter into a contract. In response, TransPacific 
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accepted Orteck’s offer for each contract by shipping the tires 

described in Orteck’s purchase order and by issuing an invoice 

to Orteck. TransPacific arranged for the delivery of tires 

pursuant to Orteck’s instructions for each of the orders. 

TransPacific provided documents created by Orteck indicating 

that Orteck placed the orders, TransPacific sent invoices, and 

bills of lading were prepared showing that the tires were 

shipped from either the factory in China or TransPacific’s 

California warehouse. Moreover, Orteck neither disputed that 

the tires for each invoice were delivered, nor produced any 

evidence to refute the inference that the tires underlying any 

of the invoices at issue were delivered. Finally, Orteck 

presented no evidence to show that Orteck paid TransPacific the 

amounts specified in the invoices.

With regard to the conversion claim, the district court 

observed that TransPacific made several shipments of tires to 

the Maryland Warehouse. Orteck admitted that, in October and 

November 2004, it sold the tires stored by TransPacific at the 

Maryland Warehouse in a fire sale. Orteck admitted that it had 

sold or otherwise disposed of tires TransPacific stored in the 

Maryland Warehouse by March 3, 2005. The district court 

observed that Orteck’s suggestion that TransPacific gave Orteck 

permission to hold the fire sale was without evidentiary 

support. Orteck did not pay TransPacific for the tires it sold 
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in the fire sale. According to the district court, Orteck’s 

sale of TransPacific’s tires, without subsequent payment for 

those tires, was a distinct act of ownership or dominion exerted 

over TransPacific’s property in denial of TransPacific’s right 

to the tires.

Although the district court had not yet entered a final 

judgment (there were some claims pending after the March 30 

decision), Orteck filed a notice of appeal on April 26, 2010. 

On April 27, 2010, Orteck filed a Motion to Stay Execution of 

Judgment and to Waive Supersedeas Bond During Pendency of 

Appeal. On July 13, 2010, the district court denied Orteck’s 

motion. Also on July 13, 2010, the district court granted the 

parties’ joint motion for a final judgment pursuant to Rule 54 

of the Federal Rules of Civil Procedure, dismissing 

TransPacific’s remaining claims without prejudice and finding no 

just reason to delay final judgment in this action. Orteck 

filed a second notice of appeal on August 5, 2010.

The second action (Orteck v. TransPacific) began on October

21, 2005, when Orteck filed suit against TransPacific and some 

other parties, namely, GITI Tire China (GITI China), Brian Chan, 

and GITI Tire (USA) Limited (GITI USA).1

 1 GITI China is a tire manufacturer located in China and 

Indonesia. GITI USA is a Delaware corporation, which began its 

operations on November 1, 2005, after acquiring TransPacific’s 

 Amended complaints were 

(Continued)
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filed in November 2005 and September 2006. Orteck’s Maryland

breach of contract and promissory estoppel claims proceeded from 

allegations that: (1) Orteck was granted an exclusive 

distributorship to sell certain tire brands in the United 

States; and (2) TransPacific promised to pay half of all 

expenses relating to the Maryland Warehouse, which Orteck took 

steps to purchase.

On June 19, 2009, the defendants moved for summary 

judgment. On March 30, 2010, the district court granted the 

defendants’ motion. With respect to Orteck’s breach of contract 

claim that it was granted an exclusive distributorship for 

certain tires, the district court concluded that the alleged 

agreement failed to satisfy the Maryland Statute of Frauds. The 

district court noted that the email relied upon by Orteck did 

not specify a contract or a quantity of goods to be sold. 

Overall, in the district court’s view, Orteck’s evidence 

 

assets that were related to TransPacific’s business with Chinese 

tire manufacturers. Chan is a California resident and was an 

employee of GITI China and TransPacific. In addition to Orteck, 

Venetian Investments, LLC (Venetian) was also a plaintiff in 

Orteck v. TransPacific. Venetian is owned by the same family 

that owns Orteck. Venetian assisted Orteck with the financing 

concerning the attempted purchase of the Maryland Warehouse. 

Venetian does not appear to be a party in this appeal. See

Appellant’s Br. at 2 (stating that the “appeal by Orteck 

International, Inc. . . . presents four main issues”).
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established that a non-exclusive supplier-customer relationship 

existed between the parties.

With regard to the breach of contract claim concerning the 

Maryland Warehouse, the district court concluded that Orteck had 

not established that an agreement was ever reached so as to 

create an enforceable contract that could be breached. The 

district court noted that a final agreement concerning the 

Maryland Warehouse was never reached, because essential terms of 

the alleged agreement were never finalized.

The district court also rejected the promissory estoppel 

claims asserted by Orteck. With regard to the alleged exclusive 

distribution agreement, the district court noted that Orteck 

failed to show that there was a clear and definite promise 

regarding the alleged exclusive distribution agreement, because 

there was no evidence that a clear and definite promise of 

exclusive distribution rights was made. The district court also 

noted that there was no evidence that Orteck reasonably relied 

on any promise.

With regard to the Maryland Warehouse, the district court 

noted that there was no clear and definite promise, because 

Orteck admitted that the agreement between the parties regarding 

the Maryland Warehouse was never finalized. Because the parties 

never came to a finalized agreement regarding the Maryland 

Warehouse, the district court observed that it would have been 
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unreasonable for Orteck to rely on any representations made by 

TransPacific concerning the Maryland Warehouse.

On appeal, Orteck makes several arguments. First, Orteck 

argues that the district court erred when it concluded that the 

alleged exclusive distribution agreement did not satisfy the 

Maryland Statute of Frauds. Second, Orteck argues the district 

court erred when it held that Orteck’s promissory estoppel 

claims failed on the merits. Third, Orteck argues that genuine

issues of material fact exist concerning TransPacific’s 

conversion claim.

Upon review of the briefs and the record, and after 

consideration of oral arguments, we conclude that the district 

court correctly granted summary judgment to TransPacific in both 

TransPacific v. Orteck and Orteck v. TransPacific, for the 

reasons stated in the district court’s thorough opinions. 

Accordingly, we affirm on the reasoning of the district court. 

See Transpacific Tire & Wheel, Inc. v. Orteck Intn’l, Inc., 2010 

WL 1375292 (D. Md. March 30, 2010); Orteck Intn’l, Inc. v. 

Transpacific Tire & Wheel, Inc., 704 F. Supp. 2d 499 (D. Md. 

2010).2 

 2 In light of our affirmance of the district court’s grant 

of summary judgment in these two cases, Orteck’s challenge to 

the district court’s denial of its Motion to Stay Execution of 

Judgment and to Waive Supersedeas Bond During Pendency of Appeal 

is moot.

AFFIRMED