Planmatics, Inc. v. Showers , 30 F. App'x 117 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PLANMATICS, INCORPORATED, 
Plaintiff-Appellant,
v.  No. 01-1520
ROBERT SHOWERS,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-97-4065-AW)
Argued: December 3, 2001
Decided: February 28, 2002
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Keith Ryan Havens, HAVENS & ASSOCIATES, L.L.C.,
Rockville, Maryland, for Appellant. W. Michel Pierson, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 PLANMATICS, INC. v. SHOWERS
OPINION
PER CURIAM:
Planmatics, Inc., brought an action against Robert Showers, its for-
mer employee, alleging that Showers breached a non-competition
agreement and breached the fiduciary duties he owed Planmatics. The
district court granted summary judgment in favor of Showers on the
breach of fiduciary duty claim. See Planmatics, Inc. v. Showers, 137
F. Supp. 2d 616, 629 (D. Md. 2001). As to the breach of contract
claim, the district court granted summary judgment in favor of Show-
ers on Planmatics’ claim for actual damages. See id. at 624. Thereaf-
ter, the court declined to exercise jurisdiction over the remaining
claim for nominal damages.1 Planmatics appeals, and we affirm.
I.
Planmatics offers consulting services to various companies, includ-
ing Ryder Integrated Logistics, Inc. In 1994, Planmatics hired Show-
ers to provide marketing and consulting services to Planmatics’
customers. Showers signed a non-competition agreement that pre-
vented him, for a period of two years, from providing marketing or
consulting services to certain specified customers, including Ryder.
While he worked for Planmatics, Showers primarily performed ser-
vices for Ryder.
In the fall of 1995, Ryder began questioning some of the expenses
that Planmatics included in its invoices to Ryder. After an audit,
Ryder concluded that approximately $50,000 of expenses had been
improperly billed, and Planmatics agreed to credit that amount against
1
Maryland law, which the district court determined controlled this
diversity action, requires the award of at least nominal damages if a con-
tract has been breached. See, e.g., Stueber v. Arrowhead Farm Estates
Ltd. P’ship, 519 A.2d 816, 818 (Md. Ct. Spec. App. 1987) ("It is well
settled that whenever there is a contract and breach of that contract the
trial court must assess some damages, nominal or substantial as it shall
find to be proper on the law and the evidence." (internal quotation marks
omitted)).
PLANMATICS, INC. v. SHOWERS 3
its outstanding invoices. There is substantial evidence showing that
Ryder did not award Planmatics any new business after the audit.
In June 1996, Showers resigned from Planmatics and began his
own consulting business. Shortly thereafter, Showers began providing
consulting services to Ryder.
II.
As to the breach of contract claim, the district court concluded that,
given the evidence showing that Ryder stopped awarding new busi-
ness to Planmatics after the audit, Planmatics failed to show the exis-
tence of a genuine issue of fact as to whether it suffered any actual
damages from Showers’ breach of the non-competition agreement.
The district court therefore granted summary judgment in favor of
Showers on Planmatics’ claim for actual damages. We find no error.
Because Planmatics would carry the burden of proof at trial, Show-
ers was not required, as Planmatics contends in its brief, to show that
summary judgment was proper by presenting evidence that negated
Planmatics’ breach of contract claim. Instead, Showers was simply
required to demonstrate the absence of evidence on any element
essential to Planmatics’ claim. See Cray Communications, Inc. v.
Novatel Computer Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994). Point-
ing to affidavits and deposition testimony of several Ryder employees
indicating that Ryder gave no new business to Planmatics because of
the information learned about Planmatics during the audit,2 Showers
demonstrated the absence of evidence tending to show that Planma-
tics suffered damages caused by Showers’ breach of the non-
competition agreement, an element essential under Maryland law to
Planmatics’s claim for anything other than nominal damages. To
avoid summary judgment, it was then incumbent upon Planmatics to
come forward with specific evidence tending to show that it did in
fact suffer damages caused by Showers’ breach. In the face of the evi-
dence indicating that Ryder gave no new business to Planmatics after
2
Even if, as Planmatics contends, some of this evidence was inadmissi-
ble hearsay that should not have been considered by the district court,
there was ample non-hearsay evidence showing that Planmatics received
no new business after the audit.
4 PLANMATICS, INC. v. SHOWERS
the audit, the various factual inferences that Planmatics’ claims
should be drawn from the evidence are simply insufficient to defeat
summary judgment. See Sylvia Dev. Corp. v. Calvert County, Md., 48
F.3d 810, 818 (4th Cir. 1995) (explaining that while the party oppos-
ing summary judgment is entitled to the benefit of inferences that can
be drawn from the evidence, "[p]ermissible inferences must still be
within the range of reasonable probability" and that "[w]hether an
inference is reasonable cannot be decided in a vacuum; it must be
considered in light of the competing inferences to the contrary" (inter-
nal quotation marks omitted)); Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985) (explaining that the party opposing summary judgment
"cannot create a genuine issue of material fact through mere specula-
tion or the building of one inference upon another").
Planmatics also argues that various principles of Maryland law
operate to make summary judgment inappropriate in this case. See,
e.g., Charbonnages De France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979) (explaining that the party opposing summary judgment must
"be given the benefit of all favorable legal theories invoked by the
evidence so considered"). Relying on National Micrographics Sys-
tems, Inc. v. OCE-Indust., 465 A.2d 862 (Md. 1983), Planmatics first
contends that it is entitled to an inference that it would have received
the Ryder business performed by Showers after he left Planmatics.
We do not read National Micrographics to support Planmatics’ argu-
ment.
In National Micrographics, OCE-Industries, an equipment manu-
facturer, named National Micrographics Systems (NMS) as the exclu-
sive distributor of its equipment in the Washington-Baltimore area.
Although OCE sometimes sold its products directly, it agreed that it
would not compete with NMS and would not sell its products directly
in NMS’s territory. OCE violated this agreement and sold its products
to customers within NMS’s territory. See id. at 865. On appeal, the
court rejected the argument that NMS was entitled to damages only
for the sales that OCE made to customers with whom NMS had a
prior relationship, and concluded that NMS was entitled to damages
based on all sales made by OCE within NMS’s territory, whether or
not NMS had previously done business with the customer. The court
stated that OCE was "estopped by its wrongful conduct to deny that
NMS would have made the sales." Id. at 870. The opinion makes
PLANMATICS, INC. v. SHOWERS 5
clear, however, that the estoppel conclusion was compelled by OCE’s
contractual obligation to refer customers to NMS. See id. at 869-70("A jury could find that, had OCE complied with the contracts by
referring customers, NMS would have made the sales, thus reaping
the benefit of its bargain. Because OCE sold directly to customers it
should have referred, it is estopped by its wrongful conduct to deny
that NMS would have made the sales." (emphasis added)). Thus,
National Micrographics offers no help to Planmatics.
Equally misplaced is Planmatics’ reliance on cases, such as David
Sloane, Inc. v. Stanley G. House & Assocs., Inc., 532 A.2d 694 (Md.
1987), that discuss permissible methods of proving the amount of lost
future profits. See id. at 696 ("One of the recognized methods of prov-
ing prospective profits is to use profits made by others, as in the case
of the breach of a contract of exclusive agency, evidence of profits
made by the infringer are admissible to prove the plaintiff’s loss."
(internal quotation marks and alterations omitted)). For questions
about the measure of damages to even arise, the existence of those
damages must first be established. Because Planmatics failed to create
a genuine issue of fact as to the existence of actual damages, the
measure-of-damages cases are simply inapplicable.
III.
As to the breach of fiduciary duty claim, the district court granted
summary judgment in favor of Showers, concluding that Planmatics
failed to come forward with any evidence tending to show a breach
of duty. Again, we find no error in the district court’s analysis.
Planmatics primarily argues that it was improper for the district
court to grant summary judgment based on the absence of evidence
showing a breach of duty. According to Planmatics, Showers never
sought summary judgment on the grounds that there was no evidence
of a breach but instead conceded that he breached his fiduciary duty.
We disagree. In his motion for summary judgment, Showers did
devote more attention to his claim that Planmatics could not show any
damages flowing from any breach of fiduciary duty. However, Show-
ers did not concede that he breached his duty, and we believe that his
motion, fairly read, sought summary judgment on the grounds that
Planmatics could not establish the existence of a breach.
6 PLANMATICS, INC. v. SHOWERS
On the merits of the fiduciary duty claim, we agree with the district
court that Planmatics failed to present any evidence tending to show
any breach of duty by Showers. There is no evidence that Showers
breached his duty of loyalty by negotiating for employment with
Ryder prior to his resignation from Planmatics. Nor is there evidence
establishing other instances of misconduct that could be considered a
breach of Showers’ fiduciary duties under Maryland law. Planmatics’
vague and unsubstantiated responses to interrogatories are simply
insufficient to create a genuine issue of material fact. See, e.g., Cau-
sey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998) (affirming grant of
summary judgment because the plaintiff’s "conclusory statements,
without specific evidentiary support" were insufficient to create a
genuine issue of fact").
IV.
Accordingly, for the foregoing reasons, the decision of the district
court is hereby affirmed.3
AFFIRMED
3
Planmatics does not challenge the district court’s decision not to exer-
cise jurisdiction over the remaining claim for nominal damages, except
to argue that should this court reverse any aspect of the district court’s
decision on the merits of Planmatics’ claims, then we should likewise
reverse the court’s dismissal of the nominal damages claim. Because we
have affirmed the summary judgment order, we need not consider
whether the nominal damages claim was properly dismissed.