Orteck International v. TransPacific Tire & Wheel , 457 F. App'x 256 ( 2011 )

UNPUBLISHED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.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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) 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.
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
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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 Amended complaints were
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
(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 AFFIRMED
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.
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