UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1703
HUDSON CONSTRUCTION COMPANY,
Plaintiff - Appellee,
versus
DILLINGHAM CONSTRUCTION COMPANY, INCORPORATED,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CA-03-277-1)
Submitted: December 22, 2005 Decided: March 2, 2006
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William E. Loose, Asheville, North Carolina, for Appellant. Nash
E. Long, III, K. Stacie Corbett, HUNTON & WILLIAMS, L.L.P.,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
This case arises out of a dispute regarding a subcontract
between Hudson Construction Co. (“Hudson”) and Dillingham
Construction Co., Inc. (“Dillingham”). Hudson brought this action
seeking a declaratory judgment that it did not owe Dillingham
damages. The district court dismissed Dillingham’s counterclaims
and granted summary judgment to Hudson. On appeal, Dillingham
argues that the district court lacked jurisdiction to hear the case
and that the district court erred in dismissing Dillingham’s
counterclaims. We affirm.
In 1999, Wal-Mart Stores, Inc. contracted with Hudson to expand
and improve a Wal-Mart store in Murphy, North Carolina. Hudson
subsequently entered into a subcontract with Dillingham for grading,
storm drainage and erosion control services for the project.
Dillingham maintains that Hudson owes it damages for causing delays
in construction, for withholding partial payment when Dillingham
refused to use crushed stone to backfill a retaining wall, and for
making deceptive statements about Dillingham’s ability to recover
damages for delay.
Hudson filed this declaratory judgment action after Dillingham
voluntarily dismissed a state court claim against Hudson for breach
of contract and unfair and deceptive trade practices. Dillingham’s
answer to Hudson’s claims in this case included as counterclaims all
of the claims that Dillingham had included in its state court
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action. The district court dismissed all of Dillingham’s
counterclaims. The court found that the North Carolina statute of
limitations barred Dillingham’s contract counterclaims and dismissed
Dillingham’s unfair trade practices claim because “the dispute
between these parties does not impact commerce or the public
interest at large.” The district court ultimately granted summary
judgment to Hudson, finding that Hudson did not owe Dillingham money
under the contract or the state deceptive trade practices act.
Dillingham first contends that the district court lacked
subject matter jurisdiction to hear the case, arguing that Hudson’s
declaratory judgment action did not satisfy the amount in
controversy requirement for diversity jurisdiction. Federal
district courts have jurisdiction over civil actions in which the
parties are of diverse citizenship and “the matter in controversy
exceeds the sum or value of $75,000.” 28 U.S.C. § 1332 (2000). The
parties here are diverse, so the only issue is the amount in
controversy. “[T]he test for determining the amount in controversy
in a diversity proceeding is the pecuniary result to either party
which [a] judgment would produce.” Dixon v. Edwards, 290 F.3d 699,
710 (4th Cir. 2002) (internal quotation marks omitted). Although
Hudson is seeking a declaration that it does not owe Dillingham any
money, the record makes clear that the amount involved in the
underlying controversy exceeds $75,000. For example, Dillingham’s
counterclaims in this action allege that Hudson’s breaches of the
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subcontract caused Dillingham damages exceeding $250,000.
Accordingly, the district court had subject matter jurisdiction to
hear this case.
Dillingham additionally maintains that the district court erred
when it dismissed Dillingham’s contract counterclaims as time
barred. We need not reach this issue, however, because Dillingham
fails to claim that the district court improperly granted summary
judgment to Hudson.1 The district court found that the clear and
unambiguous language of the contract permitted Hudson’s actions, and
that Hudson therefore did not breach the agreement. Dillingham’s
brief does not challenge the district court’s finding on this point;
as a result, the district court’s dismissal of Dillingham’s
counterclaims did not affect the final outcome in this case. Even
if we were to find that the district court erred in its
determination that Dillingham’s counterclaims were time barred,
Dillingham would still be unable to recover from Hudson given the
grant of summary judgment to Hudson.
1
Because Dillingham does not claim anywhere in its brief that
the district court’s final judgment -- a declaratory judgment that
Hudson did not breach the contract and therefore did not owe
Dillingham damages -- was erroneous, we deem these issues abandoned.
See 11126 Baltimore Blvd., Inc. v. Prince George’s County, Md., 58
F.3d 988, 993 n.7 (4th Cir. 1995).
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Finally, Dillingham argues that the district court erred in
dismissing the unfair trade practices counterclaim.2 The district
court found that Dillingham’s claim did not satisfy the statute’s
“affecting commerce” requirement because the dispute “does not
impact commerce or the public interest at large.” North Carolina
precedent supports this finding: “Although commerce is defined
broadly under G.S. § 75-1.1(b) as ‘all business activities, however
denominated,’ the fundamental purpose of G.S. § 75-1.1 is to protect
the consuming public. . . . The proper inquiry is not whether a
contractual relationship existed between the parties, but rather
whether the defendants’ allegedly deceptive acts affected commerce.”
Durling v. King, 554 S.E.2d 1, 4-5 (N.C. App. 2001) (emphasis in
original). We agree with the district court that “there is no
evidence of any impact beyond the parties’ contractual
relationship.” Thus, the district court correctly dismissed
Dillingham’s unfair trade practices claim and granted summary
judgment to Hudson.
2
When the district court granted summary judgment to Hudson
on Dillingham’s unfair trade practices claim, the court expressly
relied on its earlier reasoning in dismissing Dillingham’s
counterclaim. In addition, Dillingham challenges the district
court’s final decision on the unfair trade practices claim. See
Brief of Appellant at 17 n.4. Thus, Dillingham has not abandoned
its claim of unfair trade practices.
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We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court, and argument would not aid the decisional process.
AFFIRMED
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