Cole v. Champion Enterprises, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1794

M. MARK COLE,

Plaintiff – Appellant,

v.

CHAMPION ENTERPRISES, INCORPORATED; SOUTHERN SHOWCASE
HOUSING, INCORPORATED,

Defendants – Appellees,

and

THE CHAMPION ENTERPRISES, INCORPORATED CORPORATE OFFICERS
STOCK PURCHASE PLAN; THE CHAMPION ENTERPRISES, INCORPORATED
DEFERRED COMPENSATION PLAN,

Defendants.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen,
Senior District Judge. (1:05-cv-00415-JAB)

Argued: October 29, 2008 Decided: December 30, 2008

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge King and Judge Gregory joined.

ARGUED: J. Alexander S. Barrett, HAGAN, DAVIS, MANGUM, BARRETT,
LANGLEY & HALE, P.L.L.C., Greensboro, North Carolina, for
Appellant. James Donald Cowan, Jr., ELLIS & WINTERS, L.L.P.,
Greensboro, North Carolina, for Appellees. ON BRIEF: D. Beth
Langley, Jason B. Buckland, HAGAN, DAVIS, MANGUM, BARRETT,
LANGLEY & HALE, P.L.L.C., Greensboro, North Carolina, for
Appellant. Dixie T. Wells, SMITH MOORE, L.L.P., Greensboro,
North Carolina; David C. Wright, III, Julian H. Wright, Jr.,
Pearlynn Houck, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte,
North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
SHEDD, Circuit Judge:

Mark Cole appeals the district court’s grant of summary

judgment in favor of Champion Enterprises, Inc. and Southern

Showcase Housing, Inc. (“SSH”)(collectively, “Champion”) on his

breach of contract, North Carolina Wage and Hour Act, illegal

restraint of trade, and ERISA claims, as well as the district

court’s dismissal of his unfair trade practices claim. 1 For the

following reasons, we affirm.

I

Champion is a publicly traded manufactured housing

producer. 2 In 1998, it purchased SSH and entered into a written

five-year employment agreement with Cole (the “January 1998

Agreement”). Among other things, the January 1998 Agreement set

Cole’s salary, incentive bonuses, and severance package. Later

that year Champion promoted Cole to President of Retail, a

promotion memorialized in a letter agreement (the “September

1
Cole also appeals the district court’s denial of his
motion to compel evidence. After reviewing the record, we find
that the district court did not abuse its discretion. See Wells
v. Liddy, 186 F.3d 505, 518 n.12 (4th Cir. 1999)(denying motion
to compel).
2
Because this is an appeal from the district court’s grant
of summary judgment to Champion, we review the facts in the
light most favorable to Cole. Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008).

3
1998 Agreement”). The September 1998 Agreement conveyed the

basic terms of Cole’s employment and explicitly incorporated all

terms from the January 1998 Agreement.

In the late 1990s, the mobile home industry experienced an

economic downturn, and over a six-year period Champion’s stock

price dropped from $30 to $2 per share. In 2000, Champion asked

Cole to surrender stock options that had severely plummeted in

value. Champion then re-issued stock to Cole via two Stock

Option Agreements (“SOAs”) adopted in January and September

2001. The two SOAs contained identical covenants not to

compete, providing in part that for two years following

termination Cole could not:

directly or indirectly . . . as owner, partner, joint
venturer, employee, broker, agent, principal, trustee,
corporate officer, licensor, consultant, or in any
capacity whatsoever, engage in, become financially
interested in, or have any connection with, any
business located in the United States or Canada
engaged in the production, sales, financing, insuring,
or marketing of manufactured homes or the development
of manufactured housing parks.

J.A. 125.

In 2002, Champion implemented provisions clarifying that

its Board of Directors (“the Board”) was in charge of all

4
aspects of executive compensation. 3 Any agreements regarding

executive compensation required the Board’s approval.

In 2003, Cole’s five-year employment contract expired, 4 and

Champion’s economic decline caused him to question his future

with the company. At Cole’s request, he met with Champion’s

then-CEO Walt Young in Las Vegas to ensure that the expiration

of his employment contract would not affect his severance or

equity compensation if Champion terminated him. Young told Cole

that he could keep the severance provisions from the expired

January 1998 Agreement and that similar agreements had been

worked out with other executive officers. However, Young

reminded Cole that the Board ultimately had to approve all

compensation related decisions.

A few months later, the Board terminated Young and

installed Albert Koch as interim CEO. Cole informed Koch of his

previous communications with Young, and Koch reiterated that the

Board (not the CEO) had ultimate decision-making authority

regarding executive compensation. In March 2004, Cole traveled

to Detroit and met with Koch. The parties discussed Cole’s

3
This clarification was at least partially in response to
the Sarbanes-Oxley Act of 2002. As Champion’s President of
Retail, Cole qualified as an “executive officer” (also known as
a “Rule 16(b)” officer).
4
Even after Cole’s employment contract expired, he remained
bound by the covenants not to compete located in the SOAs.

5
concerns regarding Champion’s recently disseminated 2004

compensation plan for executive officers. Cole felt that the

new plan’s incentive compensation structure was inconsistent

with his previous conversation with Young and failed to address

his concerns about potential termination. Cole informed Koch

that he was unwilling to continue working for Champion as long

as these issues remained unsettled and that he would resign in

five days if they could not reach an agreement. Koch asked for

time, explaining that he would need to meet with Champion’s pay

consultants and get Board approval before any action could be

taken.

Later that day, Koch and John Collins, Champion’s General

Counsel, called Cole on his cell phone. Koch acknowledged that

Cole’s primary concern was protecting the equity components of

his compensation but said that Champion did not want to amend

its equity compensation plans to provide Cole with immediate

vesting upon termination without cause. Instead, Koch proposed

a resolution whereby in the event of termination, Champion would

continue to employ Cole in a de minimis capacity so that Cole’s

equity could vest. Cole indicated that the arrangement sounded

workable, and Koch agreed to take it to the Board for approval.

Cole contends that an agreement was reached during this phone

call (“the March 2004 Agreement”).

6
 At an April 2004 Board meeting, Koch outlined his

discussions with Cole. Koch then presented the following

“Approval Request” to the Board in the form of PowerPoint

slides: 5

Approval Request to Board
• Increase Mark Cole salary by $20,000.
• Salary will increase to $300,000 after two profitable
quarters (versus $285,000 now).
• Give Mark an option to:
o Retain current restricted stock (40,000 shares)
and target bonus of 80%, or
o Take restricted stock of 50,000 shares and reduce
target bonus to 60%.
• Give Mark a change of control agreement[.]

Ed Graskamp concurs with these changes.

If Mark Cole is removed as President of Retail without
cause, then:
• He may continue as a CHC retailer with an approx. 80%
stocking requirement,
• He will remain an employee with a different assignment
requiring about 10 days per year.
• His salary will be reduced to approx. $20,000 to
$30,000 per year.

This will preserve Mark’s existing restricted stock
and option grants. Vesting would occur on targeted
dates if he is still employed.

J.A. 4681-82.

The PowerPoint slides did not address several issues, such as

Cole’s post-termination position and salary, any potential

5
Microsoft PowerPoint is a software program typically used
to create business presentations. The presentations consist of
a progression of individual slides.

7
severance package, and how or when Cole would exercise his

“option” to choose a reduction in his cash bonus in return for

an increase in his number of performance shares. Nevertheless,

the Board and the Compensation Committee approved Koch’s request

and authorized him to proceed with Cole. Koch informed Cole

that the Board had approved the terms and that Collins would

subsequently draft a contract for Cole’s review.

Cole continued working for Champion in reliance on Koch’s

representations. In June 2004, Champion’s legal department sent

a draft of the agreement to Cole’s lawyer, Alex Barrett. The

draft included terms stating that “all previous employment

agreements between [the parties] are hereby rescinded” and that

the document “constitutes the sole and entire agreement.” J.A.

4836. Barrett returned a blacklined modification to Champion,

which Barrett described as “revisions from the first draft.”

J.A. 4692. This modified draft contained several provisions

either inconsistent with or not addressed by the PowerPoint

slides from the Board meeting. For example, the original

provisions requiring Cole to stock 80% of Champion’s products at

his future retail locations and reducing Cole’s annual incentive

targets were deleted from this modified draft.

William Griffiths replaced Koch as Champion’s CEO in August

2004. On or about September 1, 2004, Griffiths announced that

Champion was getting out of the retail business. As Champion

8
continued to review Cole’s modified draft of the employment

agreement, Griffiths sought and received approval from the Board

to terminate Cole’s employment. Champion then demanded that

Cole purchase its Eastern Retail Division in order for contract

negotiations to continue, and in late September Cole submitted

an offer to purchase those assets. The new proposal contained

terms, including a retroactive salary increase and release of

Cole’s covenants not to compete, that did not appear in the

PowerPoint outline.

On or about October 18, 2004, Champion terminated Cole

without cause. 6 Champion offered Cole a one-year severance

requiring him to release all claims against Champion, which Cole

did not sign. Instead, Cole sent Champion a letter attempting

to accept a de minimis employment role pursuant to the alleged

March 2004 Agreement. Champion denied that an agreement had

ever been reached.

Shortly thereafter, Champion began negotiations to sell its

Eastern Retail Division to Phoenix Housing Group, Inc., of which

Cole was the principal shareholder. Champion agreed to waive

Cole’s non-compete agreement to allow him to invest in the new

company, but prevented him from becoming an officer or director.

6
Upon Cole’s termination, the two-year non-competition
provisions located in his Stock Option Agreements began to run.

9
By mid-2005, although Champion had sold all of its traditional

retail operations, it continued to hold Cole to the terms of his

covenants not to compete. Cole abided by the covenants and now

contends that he forewent several promising opportunities and

investments in the manufactured housing industry as a result.

In April 2005, Cole filed suit against Champion and SSH in

North Carolina state court, bringing claims for breach and

repudiation of contract, failure to pay agreed-upon

compensation, failure to pay wages under the North Carolina Wage

and Hour Act, 7 unfair and deceptive trade practices, and illegal

restraint of trade, and seeking a declaratory judgment to

declare the covenants not to compete unenforceable. Champion

removed the action to the district court, claiming that Cole’s

claims were partially preempted by ERISA and that Cole had

fraudulently joined SSH to prevent removal. Champion filed a

motion to dismiss. The district court subsequently ruled on the

motion, converting the portions of Cole’s claims relating to

oral promises to pay severance benefits into ERISA claims and

dismissing Cole’s illegal restraint of trade and unfair and

deceptive trade practices claims. Upon the parties’ cross

motions for summary judgment, the district court granted summary

7
N.C. GEN. STAT. §§ 95-25.1 et seq.

10
judgment to Champion on all remaining claims. Cole subsequently

filed this appeal.

II

On appeal, “we review de novo the district court’s award of

summary judgment, viewing the facts and the reasonable

inferences drawn therefrom in the light most favorable to the

nonmoving party.” Emmett v. Johnson, 532 F.3d 291, 297 (4th

Cir. 2008). Summary judgment is appropriate when “the

pleadings, the discovery and disclosure materials on file, and

any affidavits show 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(c).

We also review de novo a district court’s dismissal pursuant

to Fed. R. Civ. P. 12(b)(6). Schatz v. Rosenberg, 943 F.2d 485,

489 (4th Cir. 1991). Upon review, “we must assume the truth of

the material facts as alleged in the complaint.” Jackson v.

Birmingham Board of Educ., 544 U.S. 167, 171 (2005).

11
 III

A.

We first consider whether the district court properly

granted summary judgment on Cole’s contract claims. 8 Under

Michigan law, to prevail on a claim for breach of contract, a

plaintiff must establish both the elements of a contract and the

breach of it. Pawlak v. Redox Corp., 453 N.W.2d 304, 307 (Mich.

App. 1990). A valid contract requires mutual assent with

respect to all essential terms, Eerdmans v. Maki, 573 N.W.2d

329, 332 (Mich. App. 1997), and a meeting of the minds regarding

all material facts. Kamalnath v. Mercy Mem. Hosp. Corp., 487

N.W.2d 499, 503 (Mich. App. 1992). “‘[A] meeting of the minds

is judged by an objective standard, looking to the express words

of the parties and their visible acts, not their subjective

8
Because this action was filed in North Carolina, we look
to that state’s conflict of laws analysis to identify the law
governing Cole’s contract claim. Under North Carolina law, the
principle of lex loci contractus applies to choice-of-law
decisions in contract cases; therefore, we apply the law of the
state where the last act essential to a meeting of the minds
occurs. Walden v. Vaughn, 579 S.E.2d 475, 477 (N.C. App. 2003).
Although Cole contends that North Carolina law should control,
we agree with the district court that Michigan law applies
because the Board’s approval, which would have been given in
Michigan, was the last act necessary to form a binding contract.
However, as noted by the district court, there is no relevant
difference between North Carolina and Michigan contract law, and
the outcome would be the same in either jurisdiction.

12
states of mind.’” Kloian v. Domino’s Pizza LLC, 733 N.W.2d 766,

771 (Mich. App. 2006)(quoting Kamalnath, 487 N.W.2d at 503).

We find that there was never an enforceable contract between

the parties on the terms Cole seeks to enforce. Initially, we

conclude that no contract could have been created during Cole’s

April 2003 meeting with Young or his March 2004 meeting with

Koch because both CEOs made it clear that, due to Cole’s status

as an executive officer, the Board’s approval was required

before any binding agreement could be adopted. The CEOs

therefore had no authority to determine Cole’s compensation, and

a contract cannot be formed when “in the contemplation of both

parties thereto, something remains to be done to establish

contract relations.” Central Bitulithic Paving Co. v. Village

of Highland Park, 129 N.W. 46, 48 (Mich. 1910). Because Cole

understood that any agreement could not be final without Board

approval, he cannot credibly contend that Koch or Young had

authority to enter into a valid compensation agreement. 9

Furthermore, a contract was not formed in April 2004 when

the Board approved the proposal presented by Koch. The

9
This also defeats Cole’s claim that an oral severance
agreement was created during a March 2004 conversation between
Koch and Cole. Assuming that Koch did make such a promise, both
parties knew that he did not have authority to enter into a
binding compensation agreement without the Board’s approval.
Cole challenges the district court’s conversion and eventual
dismissal of these severance claims, but we find no error.

13
PowerPoint slides approved by the Board did not contain all

material terms of the potential agreement. For example, the

slides were silent regarding crucial issues such as the specific

position that Cole would fill upon termination, the severance

package to be received by Cole, or whether Cole’s de minimis

employment would be guaranteed until his equity compensation

vested. Even some of the terms that do appear in the PowerPoint

slides are indefinite; for example, there is merely a vague

reference to Cole’s post-termination salary, specifying only

that it will be “approx[imately] $20,000 to $30,000 per year.”

Because the PowerPoint slides were indefinite and uncertain, the

Board’s approval of it could not have created a contract.

Moreover, the actions of the parties following the April

Board meeting confirm that there was never a meeting of the

minds between Cole and Champion. Champion drafted a proposed

contract and sent it to Cole for his approval; instead of

accepting the offer (or suggesting that a binding agreement had

already been reached), Cole’s attorney sent a revised proposal

to Champion’s lawyers. Importantly, this revised draft

contained several changes that had not been discussed by the

parties; for example, the 80% stocking requirement if Cole

became a CHC retailer was struck, and the modified draft gave

Cole the 50,000 performance shares while allowing him to keep

the 80% target bonus.

14
 Over the next few months, the parties continued to negotiate

over the eventual final terms of the contract. These

negotiations prevented Cole or Champion from reasonably

believing that they were already obligated by an enforceable

agreement, whether embodied in the PowerPoint slides or created

orally by Cole and Koch. As a result, Cole cannot recover for

breach of contract.

B.

Cole also cannot recover under the North Carolina Wage and

Hour Act. N.C. GEN. STAT. §§ 95-25.1 et seq. The Act provides a

private right of action to employees for recovery of unpaid

wages owed by their employers, and defines “wage” to include

severance pay and other amounts “promised when the employer has

a policy or a practice of making such payments.” N.C.GEN.STAT.

§ 95-25.2(16). As explained above, Champion and Cole never had

an enforceable agreement, and the company therefore does not owe

wages.

C.

Cole also contends that the covenants not to compete found

in his two SOAs are invalid and unenforceable because their

terms are unreasonable restraints on trade. He seeks to recover

damages he allegedly incurred while adhering to the covenants’

15
two-year restriction. 10 Under Michigan law, a covenant not to

compete is enforceable if it “protects an employer’s reasonable

competitive business interests and . . . is reasonable as to its

duration, geographical area, and the type of employment or line

of business.” MICH. COMP. LAWS §445.774a(1). To be reasonable, an

employer’s business interest must be “greater than merely

preventing competition . . . [it] must protect against the

employee’s gaining some unfair advantage in competition with the

employer, but not prohibit the employee from using general

knowledge or skill.” Coates v. Bastian Brothers, Inc., 741

N.W.2d 539, 545 (Mich. App. 2007)(citation omitted). “The

reasonableness of a covenant not to compete is not analyzed in

the abstract, but in the context of the employer’s particular

business interest and the function and knowledge of the

particular employee.” Whirlpool Corp. v. Burns, 457 F.Supp.2d

806, 812 (W.D. Mich. 2006). Put another way, it is not

reasonable to put equally strict restrictions on “an entry level

10
Because Cole seeks damages for illegal restraint of trade
under N.C. GEN. STAT. § 75-1, the reasonableness of the covenants
is not moot even though the terms of the covenant have expired.
Although Cole pursues damages under a North Carolina statute,
the covenants not to compete were located in the SOAs; thus, lex
loci contractus governs which law applies to the reasonableness
of the covenants. The record is unclear as to whether Cole
signed the SOAs in Michigan or North Carolina. Although we
analyze under Michigan law, we note that the outcome is the same
under either state’s law.

16
computer programmer as might be placed upon a system designer.”

Kelsey-Hayes Co. v. Maleki, 765 F.Supp. 402, 406 (E.D. Mich.),

vacated pursuant to settlement, 889 F.Supp. 1583 (E.D. Mich.

1991).

We find that Champion had a legitimate business interest to

protect. Although the company ceased to own any traditional

retail lots in September 2004, it was not automatically stripped

of any legitimate interest in the manufactured housing market as

a whole. Cole, as an executive officer, had confidential and

proprietary knowledge about all aspects of Champion’s business,

and that information went beyond general knowledge or skill.

Even after Champion sold its traditional retail operations, a

significant portion of its business continued to involve selling

manufactured housing wholesale to retail lots, builders, and

developers. Champion thus had an interest in keeping Cole out

of the market for a reasonable amount of time, as his entrance

into the market could have threatened the distribution channels

which were such a large part of Champion’s core business. The

covenants not to compete are therefore valid and enforceable so

long as their terms were reasonable.

In light of Cole’s role as an executive officer possessing

confidential information, we find that a two-year restriction is

reasonable. See Bristol Window & Door, Inc. v. Hoogenstyn, 650

N.W.2d 670 (Mich. App. 2002)(enforcing a three-year non-

17
competition covenant). In addition, Michigan courts have held

that an unlimited geographical scope may be reasonable if the

business’s scope is sufficiently national or international. See

Lowry Computer Products, Inc. v. Head, 984 F.Supp. 1111, 1116

(E.D. Mich. 1997). Champion is a publicly held company

producing and providing manufactured housing throughout North

America; accordingly, we find its business to be geographically

broad enough to justify a restriction covering the United States

and Canada. 11

IV

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

11
Because the terms of the covenants are reasonable, we do
not reach further “illegal restraint of trade” analysis under
N.C. GEN. STAT. § 75-1. Therefore, Cole’s illegal restraint of
trade claim fails. Cole’s “unfair and deceptive trade
practices” claim under § 75-1.1(a) also fails. As noted by the
district court, the fact that Champion proposed terms that were
unacceptable to Cole is not the type of activity envisioned by
the statute. See e.g. Branch Banking and Trust Co. v. Thompson,
418 S.E.2d 694, 700 (N.C. App. 1992)(holding that a trade
practice is unfair if it is “immoral, unethical, oppressive,
unscrupulous, or substantially injurious”).

18