Vantage Marketing, Inc. v. De Amertek Corp. , 31 F. App'x 109 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VANTAGE MARKETING, INCORPORATED, 
Plaintiff-Appellant,
v.
 No. 01-1366
DE AMERTEK CORPORATION,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-98-210-3-MU)
Argued: January 24, 2002
Decided: March 14, 2002
Before WILLIAMS and TRAXLER, Circuit Judges, and
Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stephen Montgomery Cox, ROBINSON, BRADSHAW
& HINSON, P.A., Charlotte, North Carolina, for Appellant. Irving
Michael Brenner, SMITH, HELMS, MULLISS & MOORE, L.L.P.,
Charlotte, North Carolina, for Appellee. ON BRIEF: R. Steven
2 VANTAGE MARKETING v. DE AMERTEK CORP.
DeGeorge, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte,
North Carolina, for Appellant. Phillip Shawn Wood, D’ANCONA &
PFLAUM, L.L.C., Chicago, Illinois, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Vantage Marketing, Inc. appeals from the district court’s grant of
summary judgment in favor of De Amertek Corporation, Inc. on Van-
tage’s claims for failure to pay post-termination commissions, com-
mon law fraud, and unfair and deceptive trade practices. Finding no
reversible error, we affirm.
I.
De Amertek is an Illinois corporation engaged in the design, manu-
facture, and sale of custom electronics and microelectronics.1 Vantage
is an independent electronics sales representative agency that repre-
sents numerous manufacturers. On March 9, 1994, Roland Lauten-
bach, Vantage’s founder, CEO, and principal shareholder, traveled to
Illinois to meet with Jack Chen, De Amertek’s founder, CEO, and
principal shareholder, to discuss the possibility of Vantage becoming
a sales representative for De Amertek in the Southeast. The parties
agree that at this meeting, they entered into an oral contract whereby
De Amertek agreed to make Vantage the exclusive representative for
De Amertek in the Carolinas, Tennessee, and Eastern Georgia. The
parties dispute, however, the remaining terms of the contract. Vantage
claims that the contract originally provided that once Vantage pro-
1
Because this is an appeal from an entry of summary judgment in favor
of De Amertek, we review the facts in the light most favorable to Van-
tage.
VANTAGE MARKETING v. DE AMERTEK CORP. 3
cured a customer for De Amertek, it would receive a 6% commission
on all purchases for as long as the customer bought products from De
Amertek. De Amertek agrees that the contract provided that Vantage
would receive a 6% commission on all of its sales,2 but it disputes the
existence of a perpetual commissions provision.
After assuming responsibilities as De Amertek’s sales representa-
tive, Vantage began to sell electronic display and control boards pro-
duced by De Amertek to Dixie-Narco, Inc., a vending machine
manufacturer in South Carolina. Soon after entering into this agree-
ment, Dixie-Narco experienced failures in De Amertek’s electronic
display and control boards. Both De Amertek and Vantage allege that
the other is at fault for Dixie-Narco’s various grievances, which were
eventually resolved. On October 8, 1997, De Amertek terminated
Vantage as its sales representative. In the meantime, Dixie-Narco
became one of De Amertek’s largest customers.
On May 20, 1998, Vantage filed this action against De Amertek in
the United States District Court for the Western District of North Car-
olina, seeking unpaid sales commissions and alleging breach of con-
tract, fraud, slander per se, and unfair and deceptive trade practices.
On November 30, 1999, Vantage amended its complaint to allege two
additional quasi-contractual claims.
On July 18, 2000, De Amertek moved for summary judgment on
all claims, which the district court granted on February 9, 2001 pursu-
ant to a written order. On March 4, 2001, Vantage filed a timely
notice of appeal to this court.
II.
We review the grant of summary judgment de novo, using the same
standards as applied by the district court. Roe v. Doe, 28 F.3d 404,
406 (4th Cir. 1994). Summary judgment is appropriate where there is
no genuine dispute as to an issue of material fact, and the moving
party is entitled to summary judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
2
This 6% commission was later reduced by oral agreement of the par-
ties to 5%.
4 VANTAGE MARKETING v. DE AMERTEK CORP.
(1986). The party seeking summary judgment has the initial burden
to show absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The opposing
party must demonstrate that a triable issue of fact exists and may not
rest upon mere allegations or denials. Anderson, 477 U.S. at 252. A
mere scintilla of evidence supporting the case is insufficient. Id. All
reasonable inferences drawn from the evidence must be viewed in the
light most favorable to the party opposing the motion. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Yet, "[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue
for trial." Id. at 587 (internal quotation marks omitted).
On appeal, Vantage challenges the district court’s grant of sum-
mary judgment on its quasi-contractual "procuring cause" claim, its
unfair and deceptive trade practices claim, and its fraud claim. We
will discuss each in turn.
A.
Vantage asserts that De Amertek is liable to Vantage for post-
termination commissions under the quasi-contractual "procuring
cause" doctrine. In Illinois,3 absent a written contract to the contrary,
the doctrine of procuring cause "allows a salesperson to recover com-
missions on sales made after the termination of the agency relation-
ship if the salesperson procured the sales through its activities prior
to [the] termination of the agency relationship." Solo Sales, Inc. v.
North America OMCG, Inc., 702 N.E.2d 652, 653 (Ill. App. Ct. 1998)
(internal quotation marks omitted). The doctrine is "designed to pro-
tect a salesperson who, although no longer an agent or employee
when a sale is made, has done everything necessary to effect the
sale." Id. at 653-54.
Vantage alleges that the procuring cause doctrine entitles it to per-
petual commissions on all of De Amertek’s sales of electronic display
and control boards to Dixie-Narco.4 As the district court held, how-
3
The parties agree that Illinois law applies to Vantage’s procuring
cause claim. (Appellant’s Br. at 16.)
4
Before the district court, Vantage sought perpetual commissions on
all sales to Dixie-Narco. At oral argument, Vantage acknowledged that
it has changed its claim on appeal to one requesting commissions on all
sales of the electronic display and control boards to Dixie-Narco.
VANTAGE MARKETING v. DE AMERTEK CORP. 5
ever, the procuring cause doctrine is based upon the procurement of
particular sales, not the procurement of customers. See, e.g., Furth v.
Inc. Publ’g Corp., 823 F.2d 1178, 1180-81 (7th Cir. 1987) (holding
that procuring cause doctrine creates entitlement to procurement of
particular sales, as opposed to procurement of customers); Dahly Tool
Co. v. Vermont Tap & Die Co., 742 F.2d 311, 314 (7th Cir. 1984)
("As the district court noted, however, the appellant fails to allege the
existence of any order which he in fact procured and for which he
received no commission.").
The Seventh Circuit’s recent opinion in Houben v. Telular Corp.,
231 F.3d 1066 (7th Cir. 2000), does not require a different result.
There, Houben claimed entitlement to post-termination commissions
on a supply contract between Motorola and Telular whereby Motorola
agreed to purchase $100 million in Telular products.5 Id. at 1070. The
supply contract was entered into prior to Houben’s termination, but
a purchase order was not issued until after her termination. Id. The
Seventh Circuit held that these facts were sufficient to support a find-
ing that Houben was entitled to post-termination commissions on the
Motorola supply contract under the procuring cause doctrine. Id. at
1073. Unlike in Houben, Vantage has failed to point to an identifi-
able, discrete sale for which it is responsible. Because Vantage failed
to identify any particular sale it procured, we agree with the district
court that the procuring cause doctrine "is simply inapplicable to this
case and cannot serve as a viable basis for recovery as a matter of
law." (J.A. at 537.)
B.
Vantage next asserts that De Amertek committed fraud in the
inducement of the contract by promising that it would pay Vantage
perpetual commissions on customers procured by Vantage when De
Amertek had no intention of keeping this promise. In North Carolina,6
5
For reasons not explained in the Houben opinion, "[t]he full $100 mil-
lion in sales never materialized," but Telular shipped approximately $30
million in products to Motorola. Houben v. Telular Corp., 231 F.3d
1066, 1070 (7th Cir. 2000).
6
We agree with the district court that North Carolina law governs Van-
tage’s fraud claim.
6 VANTAGE MARKETING v. DE AMERTEK CORP.
the essential elements of fraud are: "(1) [f]alse representation or con-
cealment of a material fact; (2) reasonably calculated to deceive; (3)
made with intent to deceive; (4) which does in fact deceive; [and] (5)
resulting in damage to the injured party." Rowan County Bd. of Educ.
v. United States Gypsum Co., 418 S.E.2d 648, 658 (N.C. 1992) (inter-
nal quotation marks omitted). "A promissory misrepresentation may
constitute actionable fraud when it is made with intent to deceive the
promisee, and the promisor, at the time of making it, has no intent to
comply." Leftwich v. Gaines, 521 S.E.2d 717, 723 (N.C. Ct. App.
1999) (internal quotation marks omitted).
The alleged misrepresentation forming the basis of Vantage’s fraud
in the inducement claim also formed the basis of Vantage’s breach of
contract claim. In ruling on the breach of contract claim, the district
court held that there was insufficient evidence that De Amertek
agreed to pay Vantage commissions on post-termination sales to
Dixie-Narco. (J.A. at 529, 534 ("[Vantage’s] evidence that De
Amertek agreed to pay [Vantage] commissions in perpetuity is simply
insufficient to support a jury verdict in its favor on this issue.").) Van-
tage sought to establish the existence of the alleged representation
through the deposition testimony of Lautenbach and Paul Adkison, a
Vantage sales representative who was present at a meeting between
Lautenbach and Chen, and an affidavit submitted by Lautenbach. Por-
tions of Lautenbach’s deposition testimony characterized the commis-
sion arrangement as being based upon obtaining customers, whereas
other portions of his deposition testimony characterized the arrange-
ment as being based upon sales. Lautenbach further testified that there
was no discussion "whatsoever" about what would happen upon the
termination of Vantage’s relationship with De Amertek. (J.A. at 530.)
Similarly, Adkison offered contradictory assertions regarding the
terms of the agreement, vacillating between describing the agreement
as sales-based and as customer-based. "[A] genuine issue of material
fact is not created where the only issue of fact is to determine which
of the two conflicting versions of the plaintiff’s testimony is correct."
S.P. v. City of Tacoma Park, 134 F.3d 260, 274 n.12 (4th Cir. 1998)
(internal quotation marks and citations omitted). For the same reason,
Lautenbach’s subsequently-submitted affidavit, in which he asserted
that the commissions agreement was customer-based, also does not
create a material issue of fact. Barwick v. Celotex Corp., 736 F.2d
946, 960 (4th Cir. 1984) ("If a party who has been examined at length
VANTAGE MARKETING v. DE AMERTEK CORP. 7
on deposition could raise an issue of fact simply by submitting an
affidavit contradicting his own prior testimony, this would greatly
diminish the utility of summary judgment as a procedure for screen-
ing out sham issues of fact." (internal quotation marks and citation
omitted)). Thus, as the district court held, no material issue of fact
exists as to whether Chen, on behalf of De Amertek, represented that
De Amertek would pay Vantage commissions on all post-termination
sales to Dixie-Narco. Inasmuch as Vantage has not produced suffi-
cient evidence that De Amertek made any representation regarding
Vantage’s entitlement to post-termination commissions, summary
judgment was appropriate on Vantage’s fraudulent inducement claim.
C.
Finally, Vantage claims that the district court erred by granting
summary judgment on its unfair and deceptive trade practices claim.
Vantage’s unfair and deceptive trade practices claim is premised on
the alleged fraudulent representation regarding Vantage’s entitlement
to commissions on post-termination sales and on an alleged "nefari-
ous scheme to deprive [Vantage] of rightfully earned commissions."
(Appellant’s Br. at 36); Olivetti Corp. v. Ames Business Systems, Inc.,
344 S.E.2d 82, 95 (N.C. Ct. App. 1986) (holding that proof of fraud
necessarily establishes a violation of North Carolina’s unfair and
deceptive trade practices statute, N.C. Gen. Stat. § 75-1.1), aff’d in
part and rev’d in part on other grounds, 356 S.E.2d 578 (N.C. 1987).
Having concluded that summary judgment was appropriate with
respect to the claims forming the basis of Vantage’s unfair and decep-
tive trade practices claim, we have no difficulty concluding that sum-
mary judgment likewise was appropriate on the unfair and deceptive
trade practices claim itself.7
7
The parties dispute whether Illinois or North Carolina law applies to
Vantage’s unfair and deceptive trade practices claim, with Vantage con-
tending that North Carolina law is applicable. We need not resolve this
dispute because, even assuming North Carolina law applies, Vantage’s
claim fails as a matter of law.
8 VANTAGE MARKETING v. DE AMERTEK CORP.
III.
For the foregoing reasons, the district court’s grant of summary
judgment in favor of De Amertek is affirmed.
AFFIRMED