Cisne v. General Electric Capital Corp.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

JOHN T. CISNE, 
Plaintiff-Appellant,
v.
GENERAL ELECTRIC CAPITAL  No. 01-1255
CORPORATION, a New York
corporation,
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-99-210-MU)

Argued: December 4, 2001

Decided: January 14, 2002

Before WIDENER and LUTTIG, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Victor Steven Valenti, BENDURE & THOMAS, Detroit,
Michigan, for Appellant. Tracy Thomas Cottingham, III, HUNTON
& WILLIAMS, Charlotte, North Carolina, for Appellee. ON BRIEF:
Nash E. Long, III, HUNTON & WILLIAMS, Charlotte, North Caro-
2 CISNE v. GENERAL ELECTRIC CAPITAL CORP.
lina; Michael R. Shebelskie, HUNTON & WILLIAMS, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

John T. Cisne brought suit against General Electric Capital Corpo-
ration claiming commissions under an alleged express oral contract
and under the procuring cause doctrine. The district court granted
summary judgment in favor of General Electric Capital Corporation,
and Cisne now appeals that decision. For the reasons that follow, we
affirm.

I.

In the spring of 1992, the Automotive Development Group
("ADG") signed an independent contractor agreement with General
Electric Capital Corporation ("GE"). GE pays a commission to inde-
pendent contractors, or representatives, who sell and service GE’s
vehicle service program to car dealers. Consumers purchase GE vehi-
cle service contracts to cover the cost of vehicle repairs and to extend
or supplement manufacturers’ warranties.

After signing the agreement with GE, ADG hired John Cisne to
market the program on ADG’s behalf. Under the GE-ADG agree-
ment, Cisne was considered a sub-representative, and received a sal-
ary from ADG. The agreement stated explicitly that GE would have
no obligation to pay compensation to any sub-representatives. In late
spring and early summer 1992, Cisne met with Hendrick Automotive
president and CEO Rick Hendrick and with Crown Motors vice presi-
dent Leonard Myers. His goal was to sell Hendrick and Crown on the
GE program, but he was unsuccessful. In fact, ADG signed only one
 CISNE v. GENERAL ELECTRIC CAPITAL CORP. 3
dealer — a used car dealer which never sold a service contract. GE
was disappointed with ADG’s performance and by August, was mak-
ing plans to terminate ADG.

After learning of ADG’s pending termination, Cisne contacted
Mike Lawrence, GE’s regional manager, to discuss the possibility of
becoming a special representative. He spoke with Lawrence four
times, including one in-person meeting. The pair allegedly discussed
leads and strategized about closing deals. They talked about a $15 per
vehicle commission on the Hendrick account but did not agree on
contract terms. Lawrence says Cisne understood that GE management
would have to approve Cisne because Lawrence was just a field
employee who had authority only to recruit and not to sign special
representatives. Cisne also signed a copy of the special representative
agreement for Lawrence to turn in to his bosses.

Over the next weeks, Cisne continued to call Lawrence about the
status of his application. He sent GE his resume. He continued to con-
tact dealers. He did not, however, undertake any startup activities: he
did not take a business loan, rent an office, or open a business bank-
ing account. GE eventually rejected Cisne’s application, viewing him
as part of ADG’s failure to sign any dealers.

In 1993, months after ADG’s termination, Hendrick and Crown
both signed contracts with GE and began selling vehicle service con-
tracts to consumers. Cisne now asserts that he is entitled to commis-
sions for these contracts.

Cisne filed suit in the United States District Court for the Eastern
District of Michigan in November 1998. The case was transferred to
the Western District of North Carolina in May 1999. On January 18,
2001, the district court issued an order granting GE’s motion for sum-
mary judgment. Cisne now appeals that order.

II.

We review a district court’s decision to grant summary judgment
de novo. Marshall v. Cuomo, 192 F.3d 473, 478 (4th Cir. 1999). Once
a defendant makes a properly supported motion for summary judg-
4 CISNE v. GENERAL ELECTRIC CAPITAL CORP.
ment, the burden shifts to the plaintiff to set forth specific facts show-
ing that there is a genuine issue for trial. Sylvia Dev. Corp. v. Calvert
County, 48 F.3d 810, 817 (4th Cir. 1995). Summary judgment is justi-
fied if the court is satisfied that there is no genuine issue of material
fact for trial and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).

In reviewing a motion for summary judgment, the court must draw
any permissible inference from the underlying facts in the light most
favorable to the party opposing the motion. Sylvia Dev. Corp., 48
F.3d at 817. The court need consider only reasonable inferences. Id.
at 818. To defeat summary judgment, the non-moving party must
present sufficient evidence such that reasonable jurors could find by
a preponderance of the evidence for the non-movant. Id.

III.

This case was originally filed in district court in Michigan and then
transferred. Therefore, Michigan choice of law rules apply. 28 U.S.C.
§ 1404(a). In contract disputes, Michigan choice of law rules empha-
size the law of the place having the materially greater interest in the
matter in dispute. See Chrysler Corp. v. Skyline Indus. Serv., Inc., 528
N.W.2d 698, 704 (Mich. 1995). Here, Cisne alleges he negotiated the
oral contract with GE in North Carolina with performance in North
and South Carolina. Michigan’s only connection to the alleged trans-
action is Cisne’s Michigan citizenship. The court finds that North
Carolina law applies.

A. Oral Contract

We turn first to Cisne’s claims that he is owed commissions under
an oral contract. There is no factual or legal support for this claim.

An oral contract can be binding if its terms are sufficiently definite
and certain to render the contract enforceable. See Williams v. Jones,
366 S.E.2d 433, 438 (N.C. 1988). There is no contract, whether oral
or written, unless the parties have a meeting of the minds and mutu-
ally assent "to the same thing, in the same sense." Horton v. Humble
Oil & Ref. Co., 122 S.E.2d 716, 719 (N.C. 1961) (quoting Elks v.
North State Ins. Co., 75 S.E. 801 (N.C. 1912)).
 CISNE v. GENERAL ELECTRIC CAPITAL CORP. 5
Cisne can point to no evidence that there was a meeting of the
minds, except his recollection of the preliminary conversation with
Lawrence. Lawrence testified that he told Cisne that there would be
an agreement only if there was a signed agreement: "I think everyone
understood, too, that on these special rep agreements — I mean, I
wasn’t the signer. I was the grunt, the field grunt, and went out and
tried to find people that could bring the package to the table[.]"

Cisne’s affidavit indicates that he and Lawrence discussed only
potential terms of the agreement:

[Lawrence] also asked me at this October 15, 1992 meeting
how much I would be satisfied with for the Hendrick deal.
I indicated that I would accept $15.00 for each vehicle ser-
vice contract sold by the Hendrick dealers in view of the
anticipated large volume of sales. Lawrence said, that’s fair.

Negotiations or proposals alone, however, do not constitute an
offer. Yeager v. Dobbins, 114 S.E.2d 820, 823 (N.C. 1960); Seawell
v. Continental Cas. Co., 352 S.E.2d 263, 264 (N.C. Ct. App. 1987).
"An offer must be definite and complete, and a mere proposal
intended to open negotiations which contains no definite terms but
refers to contingencies to be worked out cannot constitute the basis
of a contract, even though accepted." Seawell, 352 S.E.2d at 264.
Thus, viewing the evidence in the light most favorable to the plaintiff,
Cisne’s October 15 conversation with Lawrence appears to be nothing
more than a discussion regarding possible contract terms. Cisne can-
not demonstrate that there was a meeting of the minds, or the exis-
tence of specific and definite terms sufficient to constitute a contract.
The district court did not err in finding as a matter of law that no oral
contract existed.

B. Procuring Cause Doctrine

We turn next to Cisne’s argument that he is owed commissions
under the procuring cause doctrine. This doctrine guarantees that bro-
kers who secure sales will receive commissions. The broker will
receive a commission if any act in pursuance of his authority to find
a purchaser is the initiating act which is the procuring cause of the
ultimate sale. S & W Realty & Bonded Comm’l Agency, Inc. v. Duck-
6 CISNE v. GENERAL ELECTRIC CAPITAL CORP.
worth & Shelton, Inc., 162 S.E.2d 486, 491 (N.C. 1968); Brown v.
Fulford, 316 S.E.2d 220, 223 (N.C. 1984). The broker is the procur-
ing cause if the sale is the direct and proximate result of his efforts
or services. Id. "Procuring cause" refers to a cause that originates or
sets in motion a series of events which, without break in their continu-
ity, results in the prime objective of the broker. Id.

The GE-ADG agreement specifically provided that any sub-
representatives hired by ADG did not have a contract with GE. There
is no privity between principals and sub-agents hired by agents to
assist them. Colony Assoc. v. Fred L. Clapp & Co., 300 S.E.2d 37,
40 (N.C. Ct. App. 1983). Furthermore, an agent cannot maintain an
action in his name for the benefit of the principal. Goodrich v. Rice,
331 S.E.2d 195, 199 (N.C. Ct. App. 1985). Thus if Cisne had
attempted to secure dealerships while working for ADG, only ADG
and not Cisne could maintain an action against GE for commissions
due.

Cisne provided no evidence establishing that his actions caused
Hendrick and Crown to sign. Rick Hendrick testified at his deposition
that after an initial meeting with Cisne, he would have turned Cisne
over to others at Hendrick. The testimony of these other Hendrick
employees — Varge Hampton, William Musgrave, James Huzl and
Gary Davis — does not support Cisne’s claims of importance in mak-
ing the deal. Hampton does not know Cisne or remember Cisne mak-
ing any presentations to him regarding GE service contracts.
Musgrave said he had no specific recollection of ever having contact
with Cisne. Huzl said he had met Cisne only once and did not remem-
ber Cisne making any sales presentations to him. Davis said he had
met Cisne only once and could not remember receiving any solicita-
tions from him.

At Crown, Royce Reynolds made final executive decisions, includ-
ing the decision to enroll in the GE program. He stated in his affidavit
that he did not recall ever meeting Cisne, could not testify as to "ag-
gressive solicitation efforts" by Cisne, and that to the best of his recol-
lection, Cisne "was not the person responsible for the decision of the
Crown dealerships to enter into a contract with GE to sell GE Vehicle
Service Contracts." Leonard Myers testified that it was another ADG
employee, and not Cisne, who initially introduced him to GE. Finally,
 CISNE v. GENERAL ELECTRIC CAPITAL CORP. 7
Cisne overlooks the fact that at that time, he was still a sub-
representative of ADG.

Cisne has not shown that an oral contract existed, or that he was
the procuring cause of the Hendrick and Crown accounts. For those
reasons, the decision of the district court is affirmed.

AFFIRMED