Ffp Holdings LLC v. Vitafoam Incorporated; British Vita Unlimited

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2449
FFP HOLDINGS LLC,
Plaintiff – Appellant,
v.
VITAFOAM INCORPORATED; BRITISH VITA UNLIMITED,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cv-00105-MR-DLH)
Submitted: May 29, 2014 Decided: June 24, 2014
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bradley R. Love, Joseph Wendt, BARNES & THORNBURG, LLP,
Indianapolis, Indiana; Frederick S. Barbour, CLONINGER BARBOUR
SEARSON & JONES, PLLC, Asheville, North Carolina, for Appellant.
A. Ward McKeithen, Everett J. Bowman, Lawrence C. Moore, III,
ROBINSON BRADSHAW & HINSON, PA, Charlotte, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
FFP Holdings, LLC appeals the district court’s order
granting the Appellees’ motion for summary judgment on FFP’s
complaint for breach of contract, conversion, and declaratory
judgment. In the complaint, FFP alleged that pursuant to two
asset purchase agreements with Vitafoam, FFP acquired an
antitrust claim based on a price fixing scheme orchestrated by
chemical manufacturers.
We review de novo a district court’s order granting
summary judgment. Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment
should be granted “if the movant shows that there is no genuine
issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]here
is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party. If the evidence is merely colorable, or is not
significantly probative, summary judgment” is proper.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(citations omitted).
“To succeed on a breach of contract claim, the
plaintiff must prove by a preponderance of the evidence that a
legally enforceable obligation existed between it and the
defendant; that the defendant breached that obligation; and that

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the plaintiff incurred damages as a result of the breach.”
Cent. Tel. Co. of Va. v. Sprint Commc’n Co. of Va., 715 F.3d
501, 517 (4th Cir. 2013) (citations omitted) (analyzing Virginia
and North Carolina contract law). “[W]e interpret a contract as
written and, when its terms are clear and unambiguous, we
construe the contract according to its plain meaning.” Id.
(internal quotation marks and citations omitted).
We have thoroughly reviewed the record and conclude
that, although the district court did not cite the applicable
provision in the asset purchase agreements, the court did not
err in concluding that FFP did not acquire the antitrust claim
in those agreements. See Eisenberg v. Wachovia Bank, N.A., 301
F.3d 220, 222 (4th Cir. 2002) (we may “affirm on any basis
fairly supported by the record”). The antitrust claim did not
fall within the assets transferred because, under the the plain
meaning of the asset purchase agreements, the claim did not
relate exclusively to the “business” acquired by FFP.
Additionally, because FFP did not acquire the claim in the
purchase agreements, its claim for conversion fails as a matter
of law. See Gallimore v. Sink, 218 S.E.2d 181, 183 (N.C. Ct.
App. 1975) (plaintiff must demonstrate ownership of property and
a wrongful conversion of that property by the defendant for
conversion claim under North Carolina law).

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Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this Court and argument would not aid in the decisional process.
AFFIRMED

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