United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Inmar Brand Solutions, Inc. and defendant Infinity Sales
Group, LLC entered into a contract whereby Inmar arranged for
ads for Infinity's client to be printed on customer
receipts issued for purchases at Dollar General Stores, and
Infinity was to pay Inmar based on the number of ads printed.
While there are disputed questions of material fact as to
whether Infinity breached the contract at the end of March
2018, the facts viewed in the light most favorable to
Infinity establish that Infinity breached the contract at the
end of April 2018, when it failed to timely pay for ads
printed in earlier months. Infinity has not offered evidence
sufficient to support its defense that Inmar breached the
contract before Infinity. Therefore, Inmar's motion for
summary judgment on its breach of contract claim will be
granted in part and denied in part.
issues raised by the parties' summary judgment motions
will be discussed in turn.
facts are stated in the light most favorable to Infinity, the
non-moving party in relevant part. They are largely taken from
emails between the parties and from the testimony of Laresa
McIntyre, Infinity's co-president and CFO, who was the
person at Infinity involved in the matters at
December 2017, Inmar's predecessor and defendant
Infinity entered into a contract. Doc. 65-5. In the contract,
which the parties called an “insertion order, ”
Inmar agreed to arrange to print ads for Infinity's
customer, Dish, on receipts for purchases at Dollar General
Stores. See Id. Infinity had to provide the artwork
for the ads to Inmar, id.; Doc. 65-2 at 13
[100-101],  and Inmar would then arrange with Dollar
General for the ads to be printed on the receipts. Doc. 65-4
at ¶ 4. The parties agreed to a minimum number of
printed ads per month, and Infinity agreed to pay Inmar a
specific per-thousand-receipts rate. Doc. 65-5 at 2.
The contract was to run for eleven months beginning January
26, 2018, but Infinity could cancel on sixty days' notice
after six months if it met the stated minimum number of
prints. Id. There was no provision for early
cancellation based on poor sales results. Inmar would bill
Infinity monthly on the 15th for the previous month's
ads, and Infinity would pay within 30 days. Id.
was dissatisfied with the low number of sales inquiries it
was receiving as a result of these ads, Doc. 77-2 at 5 ,
and Ms. McIntyre raised the issue of a price reduction with
Inmar's Director of Print Receipts, John von Uffel, Doc.
65-4 at ¶ 1, as early as February 28. Doc. 77-4 at 17
. At some point, she became concerned that the Dish ads
were not being printed on the Dollar General receipts in the
numbers Inmar had promised. Doc. 77-2 at 5 , 7 . Ms.
McIntyre called Mr. von Uffel to discuss these issues. Doc.
77-4 at 18 . According to Mr. von Uffel's
uncontradicted testimony, Ms. McIntyre said the program
wasn't performing to her expectations; that Infinity
“couldn't continue;” that she would cancel if
there was no price break; and that she had told her art
department not to provide Inmar with any finished art.
Id. Mr. von Uffel did not understand her to cancel
the contract at that time, but she threatened to do so unless
there were price concessions. Id. at 18 .
this conversation, Ms. McIntyre sent Mr. von Uffel an email
As a follow up to our conversation today, please find below
the performance of the Dollar General campaign for 2017 when
we were with [a previous company that provided the same
services Inmar was now providing] and the subsequent
performance once Inmar took over. Since all of the parameters
under Infinity's control are the same, and the same
stores are involved, the only logical conclusion we can come
to is that there is a problem with Inmar's execution.
Infinity cannot continue to shoulder significant financial
losses. Infinity is willing to continue with the program
until July 26th if Inmar is willing to make pricing
concessions and offer us a rate of 50% of what we are
currently paying (CPM = $1.40). Otherwise, we will have to
cancel this campaign effective immediately. Please let me
know how you would like to proceed by the end of the week.
Doc. 51 at 2. Ms. McIntyre knew that Infinity was obligated
to pay for at least six months and that the contract did not
have a provision for early cancellation based on poor sales
results. Doc. 65-2 at 15 [163-64].
Uffel responded by email on Friday, March 30, 2018, that
“[w]e are reviewing your pricing request, ” that
Inmar was considering some “program enhancements,
” that he would get back to her on Thursday, and that
“[u]ntil then, starting Sunday, 4/1, the program stop
that you put in place with your team will obviously remain in
place. Please confirm that this can work.” Doc. 65-11
this time, in late March 2018, Inmar sent invoices to
Infinity for the January (pro rata), February, and March 2018
ads. Doc. 65-6; Doc. 65-7. As Ms. McIntyre promised, Infinity
stopped providing artwork for the ads to Inmar, and Inmar
could not run ads on the receipts without the approved
artwork. E.g., Doc. 65-2 at 16 [171-73]; Doc. 65-4
at ¶ 6. Before the telephone conversation and March 28
email, Infinity had sent artwork for early April, Doc. 77-6;
Doc. 77-7, but no ads were printed on any Dollar General
receipts in April. Doc. 77-4 at 29 .
April 19, Ms. McIntyre and Jason Hazlewood from Infinity met
in person with Mr. von Uffel and Roy Simrell of Inmar in
Florida. Doc. 77-2 at 7-8 [105-106]. Mr. von Uffel told Ms.
McIntyre that they found no “systems issues”
related to the campaign. Doc. 65-2 at 19 , and that
Inmar did not agree to the price reduction Ms. McIntyre had
proposed in the March 28 email. Id. at 21 [190-91].
The parties discussed tests that Inmar could run to figure
out why the campaign was not performing as expected. Doc.
77-2 at 17 . However, Ms. McIntyre needed to discuss the
matter with Infinity ownership and could not immediately
agree. Id. at 18 .
parties did not meet again in person, id. at 20
, but they continued to discuss testing by email. Doc.
65-9; Doc. 65-12. On April 27, Mr. von Uffel reminded Ms.
McIntyre that Inmar “stand[s] ready to print under the
terms of our agreement!” Doc. 65-12 at 2. In a May 3
email that primarily concerned testing, Mr. von Uffel stated
“[p]lease note that these tests are initiatives that
are completely separate from our in-place insertion order and
its terms.” Doc. 65-13 at 2.
7, 2018, Inmar sent Infinity an invoice for April. Doc. 65-8
at 3-4. Infinity had not yet paid the previous invoices.
See Doc. 65-19 at ¶ 5. Ms. McIntyre objected to
the April bill via email to Mr. von Uffel, asserting that
Inmar “agreed to pause the campaign, ” and noting
that Inmar did not circulate any advertising for April. Doc.
65-8 at 2. She referenced a meeting of unspecified date and
asserted that “[i]t was understood the campaign would
pause while this investigation was conducted . . . .”
Id. She then stated that “Infinity is
cancelling the contract with Inmar effective immediately and
we do not want to proceed with the tests.” Id.
paid the January-March invoices in April 2019 only after this
lawsuit was filed. Doc. 65-18. Infinity has never paid the
invoice for April, nor has it paid for May, June, or July,
when the six-month minimum expired.
OVERVIEW OF ISSUES AND CONTENTIONS
contends it is entitled to summary judgment on its breach of
contract claim, asserting that Infinity breached the contract
at the end of March by anticipatory repudiation, at the end
of April by failing to pay past due invoices, and in early
May by its unilateral termination of the contract without
cause. It further seeks summary judgment on Infinity's
affirmative defenses of prior material breach and lack of
standing and on its own claim for attorneys' fees.
has also filed for summary judgment in its favor on
Inmar's claim that it is entitled to attorneys' fees.
Infinity seeks dismissal of Inmar's claim for quantum
BREACH OF CONTRACT
evidence summarized supra shows, it is undisputed
that the parties entered into a valid contract where Inmar
would place ads on Dollar General receipts and Infinity would
pay for those ads. It is also undisputed that Infinity did
not timely pay for ads run during the January-March time
period and that Infinity did not place the orders required
under the remainder of the contract period. The basic dispute
in this case centers on who breached first and when.
The End of March 2018 Events
contends Infinity breached the contract at the end of March
when Ms. McIntyre emailed Mr. von Uffel and told him she
would cancel the insertion order unless Inmar gave a price
concession and then refused to provide artwork. Infinity, on
the other hand, asserts that Ms. McIntyre's email merely
requested a change of pricing; the parties never treated the
email as a cancellation; and both parties had agreed to a
pause of the arrangement under the insertion
may breach a contract by anticipatory repudiation through a
“distinct, unequivocal, and absolute” refusal to
perform.D.G. II, LLC v. Nix, 211 N.C.App.
332, 338, 712 S.E.2d 335, 340 (2011); see Millis Constr. Co.
v. Fairfield Sapphire Valley, Inc., 86 N.C.App. 506,
511, 358 S.E.2d 566, 569 (1987) (noting that “if a
party to the contract states that he cannot perform except on
some condition which goes outside the terms of his contract
then the statement will constitute a repudiation”).
“[T]o result in a breach of contract, the refusal to
perform must be of the whole contract or of a covenant going
to the whole consideration.” D.G. II, 211
N.C.App. at 338, 712 S.E.2d at 340. Additionally, in order to
constitute a breach, the ...