Mike Bendfeldt v. WINDOW WORLD, INC., a North Carolina corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1494
MIKE BENDFELDT; WINDOW WORLD - CEDAR RAPIDS, INC.; WINDOW
WORLD - GRAND ISLAND, INC.; WINDOW WORLD - MASON CITY, INC.;
WINDOW WORLD - NORTH DAKOTA, INC.; WINDOW WORLD -
PORTLAND, INC.; WINDOW WORLD - QUAD CITIES, INC.; WINDOW
WORLD - SEATTLE, INC.; W.O.W, INC.; WINDOW WORLD - LINCOLN,
INC.; WINDOW WORLD - OMAHA, INC.; WINDOW WORLD - SOUTH
DAKOTA, INC.; WINDOW WORLD - IOWA, INC.; WINDOW WORLD OF
WICHITA, INC.,
Plaintiffs - Appellants,
and
BETTY MUHR-BENDFELDT,
Plaintiff,
v.
WINDOW WORLD, INC., a North Carolina corporation,
Defendant - Appellee,
and
ASSOCIATED MATERIALS, LLC, a Delaware limited liability company,
Defendant.
Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Kenneth D. Bell, District Judge. (5:17-cv-00039-KDB-DCK)

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Submitted: March 27, 2023 Decided: May 25, 2023
Before RICHARDSON, QUATTLEBAUM, and HEYTENS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jonathan E. Fortman, LAW OFFICE OF JONATHAN E. FORTMAN, LLC,
Florissant, Missouri, for Appellants. Michael T. Medford, Judson A. Welborn, Natalie M.
Rice, Jessica B. Vickers, MANNING, FULTON & SKINNER, P.A., Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mike Bendfeldt and thirteen dissolved Nebraska corporations formerly owned and
operated by Bendfeldt (the “Plaintiff corporations”) (collectively, “Plaintiffs”), appeal the
district court’s order granting summary judgment in favor of Defendant Window World,
Inc., on Plaintiffs’ claims of fraudulent and negligent misrepresentation and breach of
contract. Under the terms of their licensing agreements, each Plaintiff corporation sold and
installed exterior home products, using the Window World brand, in designated, exclusive
trade areas. Between 2011 and 2013, most Plaintiff corporations entered asset purchase
agreements (“APAs”) with third-party buyers, through which they explicitly sold “[a]ll
business and marketing records . . . and other business records used in the Business, and
all permits and licenses necessary to the operation of the Business”; “Seller’s rights in all
oral or written contracts, agreements, and indicia of authority . . . to conduct the operations
of the Business”; and “[a]ll intangible rights and property of Seller.” (See, e.g., J.A. 819-
20).1 Because the instant litigation was not initiated until 2015, the district court found that
Plaintiffs did not own the claims they sought to raise. The district court noted that the store
in one territory—Fargo, North Dakota—was closed rather than sold and, therefore, had not
executed an APA. As to this store, the district court concluded that, because of the store’s
1 “J.A.” refers to the joint appendix filed by the parties in this appeal.

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minimal sales prior to closing, a standalone claim from that store was plainly insufficient
to support federal diversity jurisdiction.2
On appeal, Plaintiffs contend that the district court erred by entering summary
judgment on their claims because Bendfeldt did not sign the APAs in his individual
capacity and, therefore, has not sold his individual claims against Window World.3 They
also argue that the district court failed to address a breach of contract claim arising from a
purported oral contract concerning a trade area in Bismarck, North Dakota. Finding no
reversible error, we affirm.
We first address Plaintiffs’ assertion that the district court failed to consider one of
their claims. “Ordinarily, a district court order is not final until it has resolved all claims
as to all parties.” Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation
marks omitted). However, “an order that fails to explicitly address or dispose of all claims
presented to the court may nevertheless qualify as a final, appealable order if the language
used in the order is calculated to conclude all the claims before the district court.” Martin
v. Duffy, 858 F.3d 239, 246 (4th Cir. 2017) (cleaned up). Here, the district court referenced
the relevant section of Plaintiffs’ second amended complaint in concluding that all of
2 Plaintiffs have forfeited review of this issue by failing to take more than a “passing
shot at” it in their brief. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th
Cir. 2017).
3 Plaintiffs also argue—for the first time on appeal—that it is unclear which territory
was sold in each APA. Absent exceptional circumstances, which are not present here, we
do not consider issues raised for the first time on appeal. Tarashuk v. Givens, 53 F.4th 154,
167 (4th Cir. 2022).

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Plaintiffs’ claims arose from alleged contractual or legal duties owed to Window World
licensees/franchisees. Moreover, the district court’s conclusion that Plaintiffs had sold
their claims to third parties clearly encompassed all of Plaintiffs’ claims—including the
alleged breach of contract related to the Bismarck territory. Accordingly, the district
court’s order resolved all of Plaintiffs’ claims.
Turning to the merits, “[w]e review a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the district court, and viewing all
facts and reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Carter v. Fleming, 879 F.3d 132, 139 (4th Cir. 2018) (internal quotation marks
omitted). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “[A] factual dispute is genuine only where the non-movant’s version
is supported by sufficient evidence to permit a reasonable jury to find in its favor.”
Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th
Cir. 2015) (internal quotation marks omitted).
Upon review of the record, we discern no reversible error in the district court’s
determination that Plaintiffs did not own the claims they sought to raise. We therefore
affirm the district court’s order. Bendfeldt v. Window World, Inc., No. 5:17-cv-00039-
KDB-DCK (W.D.N.C. Mar. 26, 2020). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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