Custom Molders, Inc. v. Roper Corp.

Judge PARKER

dissenting.

I respectfully dissent. In my view the trial court should have directed verdict for defendant on the unfair and deceptive trade practices claim. The majority opinion points to no evidence to support a finding that defendant did not intend to purchase all its *616 footrests requirements from plaintiff at the time the agreement was made. To the contrary the evidence is undisputed that defendant in fact placed orders for August 1984 through September 1985 with plaintiff, and there is no evidence that these orders were not the full requirements for this period. During this period plaintiff implemented a price increase to which defendant agreed. Defendant cancelled the purchase order for the period 1 August 1985 through 31 July 1986 because it had found another supplier who could sell the footrests for $.30 less per pad.

Moreover, the purchase orders are the only paper writings in this record which can satisfy a written contract for purposes of N.C.G.S. § 75-4 requiring that all contracts which limit “the rights of any person to do business anywhere in the State of North Carolina” be in writing. These purchase orders were for the periods 1 August 1984 through 31 July 1985 and 1 August 1985 through 31 July 1986. The purchase orders are sufficient to satisfy the requirements under the Uniform Commercial Code for a contract for the sale of goods, N.C.G.S. §§ 25-2-204 and -207, and to satisfy the requirement for a written contract under N.C.G.S. § 75-4 for a period of one year, but not for the life of the part. Plaintiffs contention is that defendant entered into an oral requirements contract for the life of the part with no intention of fulfilling the contract as evidenced by defendant’s contracting with a different supplier after plaintiff increased the price per unit. Plaintiff, therefore, is in essence seeking the benefit of an invalid oral requirements contract for the life of the part to sustain an unfair and deceptive trade practice.

Finally, under N.C.G.S. § 75-1.1, an act is unfair if it “is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers,” Johnson v. Insurance Co., 300 N.C. 247, 263 , 266 S.E.2d 610, 621 (1980), and it is deceptive if it “has the capacity or tendency to deceive,” id. at 265 , 266 S.E.2d at 622 . Not every breach of contract constitutes an unfair or deceptive trade practice. See, e.g., Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530, 535 (4th Cir. 1989) (“A simple breach of contract, even if intentional, does not amount to a violation of [N.C.G.S. § 75-1.1]; a plaintiff must show substantial aggravating circumstances attending the breach to recover under the Act . . . .”). Plaintiff’s evidence showed that custom and practice in the plastics industry was to demand a life of the part requirements contract so long as the price remained competitive. This life of the part requirement has the potential *617 to chill the ability to obtain a competitive bid. Under this circumstance I cannot conclude as a matter of law that a purchaser is deceptive, unscrupulous, unethical, or oppressive for looking elsewhere for a more cost efficient supplier when the existing one has raised prices.

Under the evidence in this case, defendant is at most liable for breaching the 1 August 1985 through 81 July 1986 contract. Accordingly, I vote to vacate the judgment for unfair and deceptive trade practices including attorney’s fees and to remand for a determination of damages for breach of the 1 August 1985 through 31 July 1986 contract.