{ "id": 9125198, "name": "GARY M. NEUGENT, Plaintiff/Counterdefendant, and CINDY P. NEUGENT, Counterdefendant v. BEROTH OIL COMPANY, 4 BROTHERS FOOD STORE, LTD., VERNICE V. BEROTH, JR., and WALTER BEROTH, Defendants", "name_abbreviation": "Neugent v. Beroth Oil Co.", "decision_date": "2002-03-05", "docket_number": "No. COA01-242", "first_page": "38", "last_page": "57", "citations": [ { "type": "official", "cite": "149 N.C. App. 38" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "179 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "706", "parenthetical": "citations omitted" }, { "page": "706-07", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "278 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559944 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "197", "parenthetical": "citations omitted" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0181-01" ] }, { "cite": "146 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1929, "opinion_index": 0 }, { "cite": "196 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628128 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/nc/196/0538-01" ] }, { "cite": "618 F. Supp 884", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3801017 ], "year": 1985, "pin_cites": [ { "page": "902" } ], "opinion_index": 0, "case_paths": [ "/f-supp/618/0884-01" ] }, { "cite": "473 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "387", "parenthetical": "citing United States v. Ward, 618 F. Supp 884, 902 (E.D.N.C. 1985)" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913750 ], "year": 1996, "pin_cites": [ { "page": "475", "parenthetical": "citing United States v. Ward, 618 F. Supp 884, 902 (E.D.N.C. 1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0469-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1979, "opinion_index": 0 }, { "cite": "72 S.E. 487", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "opinion_index": 0 }, { "cite": "156 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271851 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nc/156/0458-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-725", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1967, "pin_cites": [ { "page": "(2)", "parenthetical": "a cause of action accrues when the breach occurs, even if the aggrieved party is unaware of the breach" }, { "page": "(1)", "parenthetical": "four year statute of limitation for breach of contract for the sale of goods" } ], "opinion_index": 0 }, { "cite": "281 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522432 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0573-01" ] }, { "cite": "499 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "799", "parenthetical": "quoting Fox, 85 N.C. App. at 301, 354 S.E.2d at 743" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650923 ], "year": 1998, "pin_cites": [ { "page": "447", "parenthetical": "quoting Fox, 85 N.C. App. at 301, 354 S.E.2d at 743" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0432-01" ] }, { "cite": "385 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522080 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "346-47" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0343-01" ] }, { "cite": "354 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169853 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0292-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-612", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-601", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-607", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "opinion_index": 0 }, { "cite": "286 N.W.2d 34", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1979, "opinion_index": 0 }, { "cite": "923 F. Supp 1322", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7806178 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "1346" }, { "page": "1347", "parenthetical": "emphasis in the original" } ], "opinion_index": 0, "case_paths": [ "/f-supp/923/1322-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-104", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-103", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(l)(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-305", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1965, "pin_cites": [ { "parenthetical": "emphasis supplied" }, { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-201", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "opinion_index": 0 }, { "cite": "160 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "98", "parenthetical": "burden on plaintiff to offer evidence in support of all essential and material elements of claim" } ], "opinion_index": 0 }, { "cite": "273 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575313 ], "year": 1968, "pin_cites": [ { "page": "354", "parenthetical": "burden on plaintiff to offer evidence in support of all essential and material elements of claim" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0353-01" ] }, { "cite": "280 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519575 ], "year": 1981, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0072-01" ] }, { "cite": "330 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "46", "parenthetical": "citing G.S. \u00a7 25-2-204" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525174 ], "year": 1985, "pin_cites": [ { "page": "146", "parenthetical": "citing G.S. \u00a7 25-2-204" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0142-01" ] }, { "cite": "272 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523205 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0650-01" ] }, { "cite": "521 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "351 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155615 ], "year": 1999, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0151-01" ] }, { "cite": "330 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724929, 4720873, 4726445, 4725392, 4719870 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0597-05", "/nc/313/0597-02", "/nc/313/0597-01", "/nc/313/0597-03", "/nc/313/0597-04" ] }, { "cite": "324 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526522 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0224-01" ] }, { "cite": "410 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "\"under [the UCC] a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct that indicates the existence of such a contract\"" } ], "opinion_index": 0 }, { "cite": "330 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512423 ], "year": 1991, "pin_cites": [ { "parenthetical": "\"under [the UCC] a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct that indicates the existence of such a contract\"" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0191-01" ] }, { "cite": "404 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "\"under [the UCC] a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct that indicates the existence of such a contract\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544832, 2540705, 2539189, 2543193, 2543230 ], "year": 1991, "pin_cites": [ { "parenthetical": "\"under [the UCC] a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct that indicates the existence of such a contract\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0731-03", "/nc/328/0731-04", "/nc/328/0731-02", "/nc/328/0731-05", "/nc/328/0731-01" ] }, { "cite": "401 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "100", "parenthetical": "\"under [the UCC] a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct that indicates the existence of such a contract\"" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528007 ], "year": 1991, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0606-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-204", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "569 P.2d 751", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "pin_cites": [ { "parenthetical": "gasoline sold by a supplier to a service station constitutes goods under the UCC" } ], "opinion_index": 0 }, { "cite": "108 Misc. 2d 245", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 776664 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/misc2d/108/0245-01" ] }, { "cite": "364 F. Supp 1137", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3501814 ], "year": 1973, "pin_cites": [ { "page": "1141" } ], "opinion_index": 0, "case_paths": [ "/f-supp/364/1137-01" ] }, { "cite": "557 F. Supp 958", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3538574 ], "year": 1983, "pin_cites": [ { "page": "964" } ], "opinion_index": 0, "case_paths": [ "/f-supp/557/0958-01" ] }, { "cite": "61 F. Supp 2d 1308", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11582673 ], "year": 1999, "pin_cites": [ { "parenthetical": "sale of gasoline by an oil company to its dealers is a sale of goods covered by Article 2 of the UCC" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/61/1308-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-105", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1965, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "15 U.S.C.S. \u00a7 2802", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1355, "char_count": 44636, "ocr_confidence": 0.742, "pagerank": { "raw": 3.1271480098233433e-07, "percentile": 0.861035527553923 }, "sha256": "f3dda2047bce8a1ba831a0c72d765797bf49fc142ed5031e4e71d721f074c24f", "simhash": "1:1da29511722d186a", "word_count": 7290 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HUDSON concur." ], "parties": [ "GARY M. NEUGENT, Plaintiff/Counterdefendant, and CINDY P. NEUGENT, Counterdefendant v. BEROTH OIL COMPANY, 4 BROTHERS FOOD STORE, LTD., VERNICE V. BEROTH, JR., and WALTER BEROTH, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nGary M. Neugent (\u201cplaintiff\u2019) appeals from the trial court\u2019s order granting Beroth Oil Company, 4 Brothers Food Store, Ltd., Vernice V. Beroth, Jr., and Walter Beroth (collectively \u201cdefendants\u201d) summary judgment on plaintiff\u2019s claims, and plaintiff and Cindy P. Neugent, counterclaim-defendant, appeal from the trial court\u2019s order granting Beroth Oil Company summary judgment on its counterclaim. We affirm in part, and reverse and remand in part.\nI. Facts\nPrior to 1986, Amoco Oil Company (\u201cAmoco\u201d) constructed a motor fuel station at 831 South Main Street in Kernersville on land it leased from Mr. Peddycord. In 1986, Amoco leased the improvements to plaintiff (the \u201cAmoco lease\u201d). Plaintiff purchased motor fuel directly from Amoco through an Amoco dealer supply agreement (\u201cAmoco DSA\u201d). The Amoco DSA and lease were renewed 1 November 1993 for three additional years. The Amoco DSA established the motor fuel\u2019s price at \u201cAmoco\u2019s dealer buying price.\u201d Amoco\u2019s dealer buying price (\u201cDBP\u201d) is a formula price term, which allows Amoco to adjust prices in response to the commercial dynamics in the market place. The Amoco DSA also provided that \u201c[i]f this Agreement is assigned by Amoco to an Amoco jobber, the prices to be paid by Dealer for motor fuel and other products hereunder shall be as established by said jobber.\u201d (Emphasis in original). \u201cJobber\u201d is a term of art in the motor fuel industry used to describe an intermediate distributor who sells motor fuel to. other dealers rather than directly to consumers.\nBeroth Oil Company, Inc. (\u201cBeroth\u201d) operates as an Amoco motor fuel jobber in Forsyth and other North Carolina counties. Sometime between August of 1994 and February of 1995, Beroth purchased the land from Mr. Peddycord and took assignment of the land lease with Amoco. Beroth is a North Carolina corporation organized 13 June 1986. Vernice and Walter Beroth, and two other brothers, are shareholders and officers.\nVernice and Walter Beroth are also shareholders and officers of another North Carolina corporation organized 9 January 1985 named 4 Brothers Food Store, Ltd. (\u201c4 Brothers\u201d). All twenty-seven 4 Brothers stores sell Amoco motor fuel. Some of the 4 Brothers stores are located in Kernersville where the Amoco station plaintiff operated was located.\nDuring 1994, Amoco decided to sell its retail motor fuel stations in North Carolina. Plaintiff testified in deposition that \u201c[e]arly in 1994, Amoco decided to pull out of its locations in North Carolina.\u201d Amoco\u2019s dealer leases provided that if Amoco ever decided to sell its stations, its lessees would have the first opportunity to purchase. Amoco notified its lessees that they could exercise their \u201crights of first refusal\u201d and purchase Amoco\u2019s stations. Plaintiff stated that \u201cthey [would] have to give me first \u2014 right of refusal, and I [would] have 30 days to exercise it. . . .\u201d Amoco also provided its jobbers the opportunity to bid on and purchase the stations, if the lessees did not exercise their rights and purchase.\nIn October of 1994, Vernice and Walter Beroth and plaintiff met to discuss whether plaintiff would be interested in purchasing Amoco motor fuel from Beroth rather than directly from Amoco. What was actually said at the meeting is disputed, but all parties agree that Beroth\u2019s pricing of Amoco motor fuel was discussed. Walter and/or Vernice Beroth mentioned the price of \u201c6\u2021 over Beroth\u2019s cost.\u201d The two parties interpreted the word \u201ccost\u201d differently. Plaintiff understood that \u201ccost\u201d meant the price Beroth purchased motor fuel from Amoco, known as the \u201crack price,\u201d and Vernice and Walter Beroth understood that \u201ccost\u201d meant the rack price plus tax and freight charges.\nAfter the 1994 meeting, plaintiff decided not to become a Beroth dealer and decided to exercise his \u201cright of first refusal\u201d contained in his Amoco lease and to purchase the station from Amoco. By December of 1994, plaintiff was unable to complete the purchase of the station from Amoco. Plaintiff testified that his \u201cfinancing fell through.\u201d\nAfter plaintiff failed to purchase the station, Beroth, as one of Amoco\u2019s jobbers, bid on and purchased the station, assumed the Amoco lease and the Amoco DSA sometime in December of 1994. The Amoco lease and the Amoco DSA were due to expire 31 October 1996.\nOn or about 18 January 1995, Beroth began supplying Amoco motor fuel to plaintiff. The motor fuel was sold to plaintiff under an electronic meter marketing plan. Beroth delivered motor fuel to the station\u2019s underground storage tanks, which Beroth owned and maintained, on consignment. Beroth retained title to the motor fuel in the storage tanks until it was sold to the consumer through metered fuel pumps. At that time, Beroth established the price it charged to plaintiff. Beroth billed plaintiff on Monday, Wednesday and Friday. Beroth normally delivered motor fuel twice a week.\nPlaintiff remained a Beroth dealer, selling Amoco motor fuel until 27 May 1999. From about 18 January 1995 until 30 November 1995, Beroth and plaintiff operated under the plaintiff\u2019s Amoco lease and Amoco DSA that Beroth acquired when it purchased the station from Amoco. Plaintiff understood that he would \u201coperate on Amoco\u2019s lease until Beroth . . . came up with a lease\nIn the fall of 1995, plaintiff received a draft of a proposed lease and dealer supply agreement from Beroth\u2019s attorney. Plaintiff and his counsel reviewed the agreements, and plaintiff signed a new lease (\u201cBeroth lease\u201d), a new dealer supply agreement (\u201cBeroth DSA\u201d), and an unlimited absolute guaranty effective 1 December 1995. Cindy P. Neugent signed the guaranty only on 23 February 1996.\nOn or about 4 July 1996, plaintiff claims to have discovered that Beroth had been billing him for a freight charge of 1.427 cents per gallon delivered in addition to the rack price plus six cents per gallon. Plaintiff never notified Beroth of his dissatisfaction with the price and continued to accept, sell, and pay for Amoco motor fuel sold by Beroth.\nOn 31 December 1998, the Beroth lease and the Beroth DSA expired, and plaintiff failed to renew. On 1 January 1999, plaintiff became a hold-over tenant. Plaintiff paid Beroth rent for January and February, but failed to pay rent for March, April, or May 1999. Plaintiff also failed to pay Beroth for motor fuel he purchased from 10 through 17 May 1999.\nBeroth notified plaintiff in writing of his default on 11 March 1999, and plaintiff vacated the property on 27 May 1999. Beroth applied plaintiffs deposit of $13,000.00 and a $541.00 credit for returned stock toward past due amounts. Plaintiff and Cindy P. Neugent, counterclaim-defendant, claim that plaintiff deposited approximately $17,000.00, and this remains a disputed issue of fact. A letter from Beroth\u2019s counsel to plaintiff dated 22 June 1999 demanded remaining past due rent and payment for motor fuel in the amount of $16,768.95. Plaintiff responded by filing suit on 25 June 1999 alleging (1) breach of contract, (2) civil conspiracy, (3) fraud, (4) punitive damages, and (5) unfair and deceptive trade practices.\nDefendants answered denying all allegations and affirmatively pled the defenses of (1) Statute of Frauds, (2) Statute of Limitations, (3) assumption of the risk, (4) frivolous action, (5) frivolous punitive damage claim, (6) unclean hands, (7) waiver, (8) failure to mitigate, (9) plaintiffs breach, and (10) the Petroleum Marketing Practices Act, 15 U.S.C.S. \u00a7 2802 et seq. on 16 August 1999. Only Beroth Oil Company counterclaimed for past due rent and motor fuel payments and named Cindy P. Neugent as a counterclaim-defendant.\nOn 27 September 1999, defendants amended their answer to add the additional affirmative defenses of (11) G.S. \u00a7 25-2-607, (12) corporate veil, (13) estoppel, (14) failure of consideration, (15) rejection of offer, (16) ratification, and (17) G.S. \u00a7 25-2-202. On 26 October 1999, plaintiff and counterclaim-defendant replied to Beroth\u2019s counterclaim and affirmatively pled the defenses of (1) duress, (2) failure of consideration, (3) fraud, (4) illegality, and (5) payment. Defendants moved for summary judgment.\nThe trial court entered judgment for defendants on all of plaintiff\u2019s claims and granted judgment for Beroth on its counterclaim in the amount of $15,826.89 for past due rent and motor fuel, attorney\u2019s fees of $2,374.03, prejudgment interest of $1,852.90, and costs of $3,892.63 on 23 October 1999. Plaintiff and counterclaim-defendant appeal. Defendants did not cross-appeal.\nII. Issues\nPlaintiff assigns as error the trial court\u2019s (A) granting of summary judgment for defendants on plaintiff\u2019s claims where disputed issues of material fact exist regarding: (1) breach of contract, (2) fraud, (3) unfair and deceptive trade practices, and (4) civil conspiracy; and (B) granting of summary judgment for Beroth on its counterclaim because of plaintiff and counterclaim-defendant\u2019s meritorious affirmative defenses of (1) duress, (2) failure of consideration, (3) fraud, (4) illegality, and (5) payment.\nIII. Breach of Contract\nPlaintiff contends that defendants represented and agreed that the price of motor fuel sold to plaintiff would be 6 cents per gallon \u201cabove Beroth\u2019s cost,\u201d and that Beroth \u201cbreached this contract by charging Mr. Neugent an additional 1.4 cents per gallon, above Beroth\u2019s cost, as a delivery charge.\u201d\nPlaintiff argues that Walter and/or Vernice Beroth breached an oral contract made at the October 1994 meeting, and also claims that \u201cBeroth breached its .... Dealer Supply Agreement signed by the parties . . . .\u201d We address each claim separately.\nA. Motor Fuel as a Sale of Goods\nWe recognize that these transactions are governed by the Uniform Commercial Code (\u201cUCC\u201d). Article 2 of the UCC, set out in Chapter 25 of the North Carolina General Statutes, governs the sale of goods. \u201c \u2018Goods\u2019 means all things . . . which are movable at the time of identification to the contract for sale ....\u201d N.C. Gen. Stat. \u00a7 25-2-105(1) (1965). North Carolina Courts have not addressed the issue of whether the sale of motor fuel between a jobber, distributor, or oil company and a dealer constitutes the sale of goods. Other jurisdictions have concluded that the UCC controls these transactions. Allapattah Servs., Inc. v. Exxon Corp. 61 F. Supp 2d 1308 (S.D. Fla. 1999) (sale of gasoline by an oil company to its dealers is a sale of goods covered by Article 2 of the UCC); CPI Oil & Ref., Inc. v. Metro Energy Co., 557 F. Supp 958, 964 (N.D. Ala. 1983); Oakey Gasoline and Oil Co., Inc. v. OKC Ref., Inc., 364 F. Supp 1137, 1141 (D. Minn. 1973); Laudisio v. Amoco Oil Co., 108 Misc. 2d 245 (NYS. 1981); Steiner v. Mobile Oil Corp., 569 P.2d 751 (Cal. 1977) (gasoline sold by a supplier to a service station constitutes goods under the UCC). We hold that the sale of motor fuel between a jobber, distributor, or oil company to a dealer is the \u201csale of goods\u201d governed by the UCC.\nB. Alleged Oral Contract\nPlaintiff claims that defendants committed \u201ca material breach of the contract formed in October, 1994\u201d by charging him a 1.427 cents per gallon delivery charge. We disagree. Viewed in the light most favorable to the plaintiff, the evidence failed to establish that an oral contract was entered into during the October 1994 meeting.\nArticle 2 of the UCC provides that:\n(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a contract.\n(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.\n(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.\nN.C. Gen. Stat. \u00a7 25-2-204 (1965) (emphasis supplied); see also Custom Molders, Inc. v. Roper Corp., 101 N.C. App. 606, 613, 401 S.E.2d 96, 100, disc. review on additional issues denied, 328 N.C. 731, 404 S.E.2d 867, aff'd, 330 N.C. 191, 410 S.E.2d 55 (1991) (\u201cunder [the UCC] a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct that indicates the existence of such a contract\u201d) (citing Carolina Builders Corp. v. Howard-Veasey Homes, Inc., 72 N.C. App. 224, 324 S.E.2d 626, disc. review denied, 313 N.C. 597, 330 S.E.2d 626 (1985)). \u201cThe Uniform Commercial Code applies more liberal rules governing the formation of contracts than the rules applied under traditional common law.\u201d Fordham v. Eason, 351 N.C. 151, 156, 521 S.E.2d 701, 705 (1999).\nWhen plaintiffs evidence showed only tentative negotiations, it is insufficient to show the existence of a contract for the sale of goods. Oakley v. Little, 49 N.C. App. 650, 272 S.E.2d 370 (1980). \u201cA contract binding defendant was not made until defendant did some act indicating its intent to be bound, i.e., recognized the existence of the contract.\u201d Unitrac, S.A. v. Southern Funding Corp., 75 N.C. App. 142, 146, 330 S.E.2d 44, 46 (1985) (citing G.S. \u00a7 25-2-204). \u201c[P]laintiff bore the burden of proving all of the essential elements of a valid contract _\u201d Delp v. Delp, 53 N.C. App. 72, 76, 280 S.E.2d 27, 30 (1981); see also King v. Bass, 273 N.C. 353, 354, 160 S.E.2d 97, 98 (1968) (burden on plaintiff to offer evidence in support of all essential and material elements of claim) (citation omitted).\nAt bar, plaintiff has failed to meet his burden by showing that an oral contract was entered into during the October 1994 meeting. Plaintiff claims that Walter or Vernice Beroth offered to sell motor fuel to plaintiff at that meeting. Walter and Vernice Beroth claim that no offer was made, simply a discussion of motor fuel prices.\nReviewing the record in the light most favorable to plaintiff, he failed to produce any evidence that he accepted the alleged \u201coffer,\u201d other than showing that Beroth: (1) purchased the underlying property from Mr. Peddycord, (2) purchased the station from Amoco, (3) assumed the Amoco lease and Amoco DSA, and (4) began supplying plaintiff motor fuel on or about 18 January 1995. Presuming an \u201coffer\u201d was made, the evidence indicates it was not accepted and lapsed well before 18 January 1995.\nAlthough not definitive, plaintiffs deposition testimony and his conduct after the October meeting indicates no acceptance of Beroth\u2019s alleged \u201coffer.\u201d Plaintiff stated that \u201cI don\u2019t recollect making a comment back to them. I don\u2019t remember making a comment back .to them. I was just getting \u2014 gathering information,\u201d and concluded that \u201cI was basically seeking information to try to clarify how much things would change in dealing from Amoco Oil Company direct versus being with Beroth Oil Company.\u201d\nAlso, plaintiff exercised his right of first refusal to the Amoco lease and attempted to purchase the station directly from Amoco after the October 1994 meeting. \u201cI had a meeting with Walter and Thornton [sic] Beroth that \u2014 and maybe November or early December [1994], and that\u2019s after I had signed that first right of refusal.... I told them ... it was my intentions to, you know, purchase the lease from Amoco.\u201d Plaintiff offers no evidence that he intended to be bound, or that he considered any of defendants bound to any alleged oral contract as a result of the October 1994 meeting.\nAdditionally, UCC \u00a7 2-201 requires that \u201ca contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable ... unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought....\u201d N.C. Gen. Stat. \u00a7 25-2-201 (1965). The record indicates that after Beroth began selling motor fuel to plaintiff, pursuant to the Amoco and Beroth DSA\u2019s, the price of motor fuel deliveries were substantially more than $500.00. We hold that no contract was formed between the parties as a result of the October 1994 meeting.\nC. Beroth Begins Selling Amoco Motor Fuel to Plaintiff\nOn or about 18 January 1995, Beroth began selling motor fuel to plaintiff. From that date until 30 November 1995, the parties operated pursuant to plaintiffs Amoco lease and Amoco DSA that Beroth assumed when it purchased the station from Amoco. The Amoco DSA set the price for motor fuel at \u201cAmoco\u2019s dealer buying price ... in effect in Amoco\u2019s pricing area in which the above-identified motor fuel sales facility is located at the time when title to said products passes from Amoco to Dealer.\u201d (Emphasis in original). Walter Beroth testified that he did not know \u201cAmoco\u2019s dealer buying price.\u201d Plaintiff testified that he did not know \u201cthe markup in the dealer buying price that Amoco charged . .. .\u201d The Amoco DSA further provided that \u201c[i]f this Agreement is assigned by Amoco to an Amoco jobber, the prices to be paid by Dealer for motor fuel and other products hereunder shall be as established by said jobber.\u201d (Emphasis in original). We conclude that Beroth, as jobber-assignee of the Amoco DSA, was not obligated to charge the same price to plaintiff that Amoco had charged for motor fuel according to the clear and unambiguous terms of the Amoco DSA. It is also clear from the record that Beroth and plaintiff did not enter into a new written agreement until 1 December 1995.\nPlaintiff understood that he would \u201coperate on Amoco\u2019s lease until Beroth . . . came up with a lease,\u201d and that he would be bound by its terms. Plaintiff does not argue that no contract existed, only that defendants breached the Beroth DSA that became effective 1 December 1995. Plaintiff does not specifically address the interim period from or about 18 January 1995 to 30 November 1995, when the parties operated under the Amoco DSA, in his brief.\n\u201cUCC \u00a7 2-305 provides for the determination of the price when the parties intended to make a contract although no price was stated . 2k Ronald A. Anderson, Anderson on the Uniform Commercial Code \u00a7 2-305.5, p 431 (3d ed. 1997).\n(1) The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if\n(a) nothing is said as to price; or\n(b) the price is left to be agreed by the parties and they fail to agree; or\n(c) the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.\n(2) A price to be fixed bv the seller or bv the buyer means a price for him to fix in good faith.\nN.C. Gen. Stat. \u00a7 25-2-305 (1965) (emphasis supplied).\nHere, the Amoco DSA established the price of motor fuel at whatever Beroth, as assignee-jobber, decided to charge. Beroth\u2019s discretion was not unlimited: \u201cA price to be fixed by the seller . . . means a price for him to fix in good faith.\u201d N.C. Gen. Stat. \u00a7 25-2-305(2). \u201c \u2018Good faith\u2019 in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.\u201d N.C. Gen. Stat. \u00a7 25-2-103(l)(b) (2001). Beroth and plaintiff were both merchants as defined in the UCC. See N.C. Gen. Stat. \u00a7 25-2-104 (1965).\nPlaintiff does not allege that Beroth did not set the price in good faith during this interim period between about 18 January 1995 and 30 November 1995. We hold that bare allegations of an unexpected 1.427 cents per gallon freight charge, without more, does not state a claim for breach of the implied covenant of good faith during the period of time between about 18 January 1995 to 30 November 1995. We affirm the trial court\u2019s grant of summary judgment for defendants as to all of plaintiff\u2019s contract claims through 30 November 1995.\nD. Beroth DSA\nPlaintiff claims that defendants breached the Beroth DSA, or alternatively, there is a disputed issue of fact as to whether defendants breached. Plaintiff\u2019s main contention is that \u201cBeroth was charging ... 4 Brothers an amount substantially less than that charged plaintiff.\u201d We are unable to determine from the record whether defendants breached the Beroth DSA because genuine issues of material fact exist.\nBeroth and plaintiff, each represented by counsel, executed the Beroth lease and DSA effective 1 December 1995. The parties established the price for motor fuel using language that is virtually identical to the language contained in the Amoco DSA. The Beroth DSA stated:\n4. Prices. The price for motor fuels purchased by Dealer from Beroth hereunder, shall be Beroth\u2019s dealer buying price for each respective grade of said products in effect in Beroth\u2019s pricing area in which the Premises is located at the time when title to said products passes from Beroth to Dealer.\n(Emphasis in original).\nAs stated above, UCC \u00a7 2-305(2) authorizes a seller or buyer to fix the price to be charged. \u201cThis is not expressly declared in the Code but is necessarily implied in UCC \u00a7 2-305(2) which defines the duty of a party in fixing the price.\u201d Anderson, supra, \u00a7 2-305:44, at 449.\nGood faith ordinarily is met if a formula or standard is set. Official Comment 3 of the UCC \u00a7 2-305(2) provides that a \u201cprice in effect\u201d is by definition a price set in good faith: \u201cin the normal case a \u2018posted price\u2019 or a future seller\u2019s or buyer\u2019s \u2018given price,\u2019 \u2018price in effect,\u2019 \u2018market price,\u2019 or the like satisfies the good faith requirement.\u201d N.C. Gen. Stat. \u00a7 25-2-305, Official Comment, para. 3, sent. 3 (emphasis supplied). \u201cThis provision apparently reflects a belief that \u00a7 2-305(2) should not require suppliers in industries where \u2018price in effect\u2019-type contracts are often used to establish that the price ultimately charged was a reasonable one.\u201d Wayman v. Amoco Oil Co., 923 F. Supp 1322, 1346 (D. Kan. 1996). \u201c[T]he chief concern of the UCC Drafting Committee in adopting \u00a7 2-305(2) was to prevent discriminatory pricing \u2014 i.e., to prevent suppliers from charging two buyers with identical pricing provisions in their respective contracts different prices for arbitrary or discriminatory reasons.\u201d Id. at 1347 (emphasis in the original). We hold that once a buyer or a seller sets a formula or standard to determine the price in the contract pursuant to UCC 2-305(2), both parties must abide by that formula or standard until mutually amended or changed.\nDefendants argue that \u201cNeugent contracted to buy at an open price term \u2014 not a fixed price formula.\u201d We disagree. \u201cWhen the parties have agreed on a formula for determining the price, there is no \u2018open price\u2019 term....\u201d Anderson, supra, \u00a7 2-305:32, at 443 (citing S.C. Gray, Inc. v. Ford Motor Co., 286 N.W.2d 34 (Mich. Ct. App. 1979)). Under the Beroth DSA pricing structure, the price charged by Beroth may change from day to day, but the pricing formula or structure contractually cannot change without amending the agreement. The plain, clear, and unambiguous language of the Beroth DSA establishes a pricing formula which created an expectation by plaintiff and an obligation by Beroth that plaintiff could purchase motor fuel at the same price as every other Amoco dealer that Beroth supplied Amoco motor fuel to in \u201cBeroth\u2019s pricing area.\u201d\nAlternatively defendants contend that even if they breached a contract, plaintiffs contract claim is barred because defendants affirmatively pled UCC \u00a7 2-607, and plaintiffs failed to give defendants required notice after they knew of the breach. N.C. Gen. Stat. \u00a7 25-2-607 (1965).\nAfter careful review, we conclude that defendants have failed to show that UCC \u00a7 2-607 applies to transactions other than the failure of the \u201cgoods or the tender of delivery... to conform to the contract.\u201d N.C. Gen. Stat. \u00a7 25-2-601 (1965). Also, the date of the breach(es), if any, is a disputed issue of fact. We are unable to determine when plaintiff should have discovered that a breach, if any, occurred, triggering the notice requirements of G.S. \u00a7 25-2-607.\nWe hold that the Beroth DSA set the price for motor fuel at \u201cBeroth\u2019s dealer buying price ... in effect in Beroth\u2019s pricing area\u201d and utilized a fixed price formula that obligated Beroth to sell to plaintiff at the same dealer buying price that Beroth sold motor fuel to other dealers in \u201cBeroth\u2019s pricing area.\u201d\nWhether or not Beroth charged plaintiff \u201cBeroth\u2019s dealer buying price ... in effect in Beroth\u2019s pricing area\u201d from 1 December 1995 to 27 May 1999 is a dispositive issue regarding plaintiff\u2019s breach of contract claim. Defendants argue that plaintiff has \u201cno evidence that he [plaintiff] is being charged differently than other dealers.\u201d This assertion is unsupported by the record.\nBeroth or 4 Brothers owns and operates at least twenty-seven stations in Forsyth and surrounding counties. Walter Beroth admitted in his deposition testimony that \u201c[w]e don\u2019t charge ourselves for the product .... [4 Brothers] is not really charged over what Beroth is charged for the product.\u201d \u201cIn other words, there\u2019s not a set markup on that product when it\u2019s dropped at the store for the store internally.\u201d From this and other parts of Walter Beroth\u2019s testimony and the record, it is undisputed that Beroth sells motor fuel to the 4 Brother stations at Beroth\u2019s \u201crack price\u201d plus freight only. Beroth charged 4 Brothers a different price than it charged plaintiff for motor fuel.\nWalter Beroth contends in his deposition testimony that 4 Brothers is not an Amoco dealer. The record before us does not support his contention. 4 Brothers is a separate corporation. Approximately twenty-seven 4 Brothers stores sold Amoco motor fuel, supplied by Beroth, to the public. In plaintiffs first request for admissions, defendants admitted that \u201c4 Brothers . . . and Beroth . . . are separate and distinct corporations.\u201d Some 4 Brothers stations were located less than three miles from plaintiffs station. Although the record is clear that Beroth charged 4 Brothers less than it charged plaintiff, the record does not show the extent of \u201cBeroth\u2019s pricing area,\u201d and consequently we are unable to determine if Beroth breached the Beroth DSA.\nVernice Beroth was unable to identify \u201cBeroth\u2019s pricing area\u201d conclusively. When asked \u201c[w]hat\u2019s the geographic area that Beroth . . . controls the pricing for Amoco petroleum products to various dealers,\u201d Vernice responded \u201c[w]ell, it \u2014 it could be Forsyth County or it could be like a Walkerton or a Kernersville or something like that.\u201d \u201cGenerally it\u2019s Forsyth County. But I \u2014 like I say, it could be \u2014 one side of town could be one price and the other side another.\u201d Plaintiff\u2019s counsel specifically asked Vernice Beroth \u201c[a]s of December 1st, 1995, what was Beroth\u2019s pricing area as outlined in [Beroth\u2019s DSA].\u201d He responded \u201cI don\u2019t know. I don\u2019t know. I couldn\u2019t tell you. I just don\u2019t recall that.\u201d As some evidence of Beroth\u2019s pricing area, defendants admitted that \u201cfrom 1994 to May 1999, Beroth . . . was the only Amoco distributor from whom the plaintiff could purchase Amoco petroleum products\u201d in plaintiff\u2019s request for admissions.\nAlso it is unclear from the record how Beroth determined the price it charged for motor fuel sold to plaintiff. When asked, Walter Beroth stated that \u201cIn that \u2014 in those \u2014 in that \u2014 instances of those locations, we \u2014 we based the price on our liability.\u201d Establishing plaintiff\u2019s price for motor fuel based on Beroth\u2019s \u201cliability\u201d is different than \u201cBeroth\u2019s dealer buying price ... in effect in Beroth\u2019s pricing area,\u201d as required by the Beroth DSA. In any event, the record is inconclusive as to how Beroth determined the price it charged plaintiff.\nBeroth, as a jobber, also sold motor fuel to five or six other independent Amoco dealers. We are unable to determine the number of other independent dealers to whom Beroth sold motor fuel from 1 December 1995 to 27 May 1999, the price Beroth charged those other dealers for motor fuels, and if those dealers were located in the same \u201cBeroth\u2019s pricing area\u201d as plaintiff.\nOn the record before us, we cannot ascertain whether Beroth sold motor fuels to plaintiff from 1 December 1995 until 27 May 1999 for \u201cBeroth\u2019s dealer buying price ... in effect in Beroth\u2019s pricing area.\u201d We hold that: (1) the size and location of \u201cBeroth\u2019s pricing area\u201d from 1 December 1995 until 27 May 1999; (2) the number of other independent dealers inside \u201cBeroth\u2019s pricing area\u201d that Beroth sold to, as an Amoco jobber, (3) the price that Beroth charged independent dealers and 4 Brothers stations for motor fuel, and (4) whether any 4 Brothers stations were located in \u201cBeroth\u2019s pricing area\u201d from 1 December 1995 until 27 May 1999, are all genuine issues of material fact which precludes summary judgment on plaintiff\u2019s breach of contract claim for the period between 1 December 1995 through 27 May 1999.\nEach billing on or after 1 December 1995 could constitute a new and separate breach if Beroth sold motor fuel to plaintiff at a price other than \u201cBeroth\u2019s dealer buying price ... in effect in Beroth\u2019s pricing area.\u201d See e.g. 23 Samuel Williston, A Treatise on the Law of Contracts \u00a7 63.1 (Richard A. Lord ed., 4th ed. 2002) (\u201cAs a contract consists of a binding promise or set of promises, a breach of contract is a failure, without legal excuse, to perform any promise that forms the whole or part of a contract\u201d); see also N.C. Gen. Stat. \u00a7 25-2-612 (1965).\nAlthough genuine issues of material fact exist with respect to plaintiff\u2019s breach of contract claim of the Beroth DSA for the sale of motor fuel, plaintiff and counterclaim-defendant presented no evidence, and have not argued here, that they are not liable for rent payments for March, April, and May 1999 as alleged in Beroth\u2019s counterclaim. We affirm the trial court\u2019s grant of summary judgment for Beroth\u2019s counterclaim for past due rent for those months.\nWe also affirm plaintiff and counterclaim-defendant\u2019s liability for payment of motor fuel that Beroth sold to plaintiff from 10 through 17 May 1999. We remand for determination of the amount owed, using the price formula set forth in the Beroth DSA in accordance with this opinion.\nThe award of attorney fees, costs and interest to Beroth on its counterclaim is also remanded for a determination of the proper allocation of these fees, costs, and interest between Beroth\u2019s rental claims and motor fuel claims.\nIV. Civil Conspiracy\nPlaintiff contends that North Carolina law \u201cpermits one defrauded to recover from anyone who facilitated the fraud by agreeing for it to be accomplished,\u201d and that it was error for the trial court to grant summary judgment to defendants. We agree.\nThis State recognizes a cause of action for the facilitation of fraud. \u201cWhile there is no recognized action for civil conspiracy in North Carolina, Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737 (1987), and this claim is couched in the language of conspiracy, our law nevertheless permits one defrauded to recover from anyone who facilitated the fraud by agreeing for it to be accomplished.\u201d Nye v. Oates, 96 N.C. App. 343, 346-47, 385 S.E.2d 529, 531 (1989). \u201cWhen a cause of action lies for injury resulting from a conspiracy, \u2018all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.\u2019 \u201d State ex rel. Long v. Petree Stockton, L.L.P, 129 N.C. App. 432, 447, 499 S.E.2d 790, 799 (1998) (quoting Fox, 85 N.C. App. at 301, 354 S.E.2d at 743).\nThe elements of facilitating fraud are: (1) that the defendants agreed to defraud plaintiff; (2) that defendants committed an overt tortious act in furtherance of the agreement; and (3) that plaintiff suffered damages from that act. Oates, 96 N.C. App. at 347, 385 S.E.2d at 531-32 (citing Coleman v. Shirlen, 53 N.C. App. 573, 281 S.E.2d 431 (1981)).\nThrough the testimony of Walter Beroth, plaintiff presented evidence that on several occasions 4 Brothers stations located near plaintiff\u2019s station sold motor fuel to the public at a price per gallon less than Beroth sold motor fuel to plaintiff. Walter Beroth and Vemice Beroth also testified that Beroth now owned several of the other formerly independent dealer\u2019s stations that Beroth had previously sold motor fuel to as a jobber. These stations now operate as 4 Brothers stations.\nAlthough not dispositive as to plaintiff\u2019s civil conspiracy claim, when viewed in the light most favorable to the plaintiff and according him every reasonable inference, defendants are not entitled to judgment as a matter of law. The trial court erred granting summary judgment for defendants on plaintiff\u2019s conspiracy claim.\nIV. Defendants\u2019 Affirmative Defenses\nDefendants have affirmatively pled 17 defenses that they claim support the trial court\u2019s grant of summary judgment, although not all are argued. We do not address those not argued. N.C. R. App. P. 28(b)(5) (1999).\nA. Statute of Limitations\nThe Statute of Limitations defense affirmatively pled to plaintiffs breach of contract claim is not a complete bar to plaintiffs recovery. The applicable statute of limitations for plaintiffs contract claim is four years from the date of any potential breach which may or may not have occurred on and after 1 December 1995 until 27 May 1999. See N.C. Gen. Stat. \u00a7 25-2-725(2) (1967) (a cause of action accrues when the breach occurs, even if the aggrieved party is unaware of the breach); N.C. Gen. Stat. \u00a7 25-2-725(1) (1967) (four year statute of limitation for breach of contract for the sale of goods). We conclude defendants\u2019 Statute of Limitations defense does not preclude plaintiffs contract claims that accrued on or after 1 December 1995. Plaintiff filed his complaint on 25 June 1999, well within the required four year period.\nPlaintiffs fraud and conspiracy claims are governed by a three year statute of limitations. N.C. Gen. Stat. \u00a7 1-52(9) (1997). The statute commences from discovery of the fraud or from when it should have been discovered exercising ordinary care. Sinclair v. Teal, 156 N.C. 458, 72 S.E. 487 (1911). Plaintiffs unfair and deceptive trade practices claim is governed by a four year statute of limitation. N.C. Gen. Stat. \u00a7 75-16.2 (1979). The statute commences when the violations occur. Hinson v. United Fin. Servs., Inc., 123 N.C. App. 469, 475, 473 S.E.2d 382, 387 (1996) (citing United States v. Ward, 618 F. Supp 884, 902 (E.D.N.C. 1985)).\nDefendants argue that plaintiff \u201chad Beroth\u2019s pricing to him as of January 18, 1995, and knew or should have known the facts constituting the alleged fraud . . . and unfair trade actions ... as of January 1995 .... He had the ability to verify Beroth\u2019s pricing . . . .\u201d We disagree.\nPlaintiff could have verified the price \u201cformula\u201d at that time. Plaintiff had no way to determine whether defendants engaged in unfair and deceptive trade practices from 25 June 1995 until 30 November 1995. Also plaintiff had no way of knowing whether defendants\u2019 actions constituted fraud, unfair and deceptive trade practice, and/or conspiracy on and after 1 December 1995. Given the limited record before us, genuine issues of fact preclude us from determining the dates that the three and four year statute of limitations respectively began to run on these claims.\nB. Corporate Veil\nDefendants affirmatively pled corporate veil and argue here that the trial court properly dismissed plaintiff\u2019s claims against 4 Brothers, and Walter and Vemice Beroth. Defendants contend that plaintiff offered no evidence that Walter and Vemice Beroth were acting in their individual capacities, and that plaintiff offered no evidence that 4 Brothers were liable under any of his claims. Again we disagree.\nThe judgment does not contain findings of fact or conclusions of law regarding whether 4 Brothers, or Walter and Vernice Beroth are proper defendants. Reviewing the evidence in the light most favorable to plaintiff, we conclude that genuine issues of fact exist as to whether 4 Brothers, Walter Beroth and/or Vemice Beroth defrauded, unfairly and deceptively practiced trade, and conspired against plaintiff. The trial court erred granting summary judgment for defendants on these claims.\nC. Ratification. Waiver. Estoppel\nDefendants next contend that plaintiff \u201cratified the Beroth\u2019s contract and pricing\u201d arguing that plaintiff did not bring suit until 3 years after he learned of the freight charge and only when plaintiff was in default. Defendants conclude that plaintiff \u201ccannot assert claims for unfair trade practices, breach of contract, fraud, or civil conspiracy against any of defendants.\u201d\nIt is true that \u201c[a] cause of action premised on fraud or misrepresentation may be waived by affirmative acts taken by a plaintiff that amount to a ratification of the transaction.\u201d David A. Logan and Wayne A. Logan, North Carolina Torts \u00a7 25.10, at 545 (1996) (citing Hawkins v. Carter, 196 N.C. 538, 146 S.E.2d 231 (1929)); see also Link v. Link, 278 N.C. 181, 197, 179 S.E.2d 697, 706 (1971) (citations omitted). \u201cIt is equally clear, however, that an act of the victim of any of these wrongs will not constitute a ratification of the transaction thereby induced unless, at the time of such act, the victim had full knowledge of the facts and was then capable of acting freely.\u201d Link, 278 N.C. at 197, 179 S.E.2d at 706-07 (citations omitted).\nPlaintiff admitted that he became aware of the \u201cfreight charge\u201d on 4 July 1996. That fact alone is inconclusive evidence that plaintiff was aware that defendants may have sold motor fuel to plaintiff at a price other than \u201cBeroth\u2019s dealer buying price. . . in effect in Beroth\u2019s pricing area.\u201d Beroth, as seller, set the \u201cdealer buying price\u201d and the \u201cpricing area.\u201d Viewing the evidence in the light most favorable to plaintiff, plaintiff did not have full knowledge of all material facts concerning \u201cBeroth\u2019s dealer buying price\u201d and \u201cBeroth\u2019s pricing area\u201d sufficient for the trial court to conclude, as a matter of law, that plaintiff acted freely and ratified defendants wrongdoing, if any.\nV. Plaintiff\u2019s Affirmative Defenses\nPlaintiff contends that his affirmative defenses of duress, failure of consideration, fraud, illegality, and payment should have prevented the trial court from granting Beroth summary judgment on its counterclaim.\nWe affirmed the trial court granting Beroth summary judgment on its counterclaim on the issues of past due rent and plaintiff and counterclaim-defendant\u2019s liability for payment of motor fuel purchased but unpaid only. The amount plaintiff owes Beroth must await the determination of whether a breach of contract occurred and application of the proper price. Plaintiff and counterclaim-defendant failed to argue these affirmative defenses to that portion of the judgment. These affirmative defenses do not bar Beroth\u2019s recovery.\nVIL Conclusion\nAfter a thorough review of the limited record and arguments of the parties, we conclude that genuine issues of material fact preclude summary judgment for defendants on plaintiff\u2019s claims, except for plaintiff\u2019s contract claims prior to 1 December 1995. We also conclude that Beroth is entitled to partial summary judgment on its counterclaim.\nWe affirm that portion of the trial court\u2019s grant of summary judgment (A) for defendants on plaintiff\u2019s (1) breach of an alleged oral contract, and (2) breach of contract claim during the period from 18 January 1995 until 30 November 1995, the period during which the parties operated under the Amoco lease and Amoco DSA; (B) for Beroth\u2019s counterclaim for past due rent and for plaintiff and counterclaim-defendant\u2019s liability for payment of motor fuel purchased from 10 May to 17 May 1999. The amount owed for motor fuel should be determined by application of the appropriate contract price after a determination of whether or not defendants breached the Beroth DSA.\nWe affirm the trial court\u2019s award, but not amount, of attorney fees, costs, and interest to Beroth on its counterclaim for past due rent and plaintiff and counterclaim-defendant\u2019s liability for motor fuel payments. We remand for the trial court\u2019s proper determination and allocation of those fees, costs, and interest.\nWe reverse and remand for trial on plaintiffs claims for (1) breach of contract between 1 December 1995 through 27 May 1999, and the amount that plaintiff and counterclaim-defendant owe Beroth for unpaid motor fuel purchases, (2) civil conspiracy, (2) fraud, (3) unfair and deceptive trade practices, and (4) punitive damages.\nAffirmed in part, reversed and remanded in part.\nJudges TIMMONS-GOODSON and HUDSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Michelle D. Reingold, for plaintiff/counterclaim-defendants-appellants.", "Hendrick Law Firm, by T. Paul Hendrick and Matthew H. Bryant, for defendants-appellees." ], "corrections": "", "head_matter": "GARY M. NEUGENT, Plaintiff/Counterdefendant, and CINDY P. NEUGENT, Counterdefendant v. BEROTH OIL COMPANY, 4 BROTHERS FOOD STORE, LTD., VERNICE V. BEROTH, JR., and WALTER BEROTH, Defendants\nNo. COA01-242\n(Filed 5 March 2002)\n1. Sales\u2014 wholesale motor fuel \u2014 sale of goods \u2014 governed by UCC\nThe sale of motor fuel by a jobber, distributor, or oil company to a dealer is a \u201csale of goods\u201d governed by the UCC.\n2. Sales\u2014 wholesale motor fuel \u2014 oral contract \u2014 not shown\nPlaintiff failed to meet his burden of showing that an oral contract for motor fuel was entered into at a meeting where, presuming that an offer was made, the evidence shows that it was not accepted and that it lapsed well before the date defendant began supplying plaintiff with motor fuel. N.C.G.S. \u00a7 25-2-204.\n3. Sales\u2014 wholesale motor fuel \u2014 breach of contract \u2014 unexpected freight charge\nIn a contract action arising from the transfer of a service station and its motor fuel supply agreement, summary judgment was properly entered for defendants as to plaintiff\u2019s breach of contract claims regarding the prices defendant charged during an interim period. Bare allegations of an unexpected freight charge do not state a claim for breach of the implied covenant of good faith under N.C.G.S. \u00a7 25-2-305.\n4. Sales\u2014 wholesale motor fuel \u2014 pricing\u2014issues of fact\nThere were genuine issues of material fact concerning the breach of a contract to supply motor fuel to a service station where the plain, clear, and unambiguous language of the dealer service agreement established a pricing formula which created an expectation by plaintiff and an obligation by defendant that plaintiff could purchase motor fuel at the same price as every other Amoco dealer supplied by defendant in defendant\u2019s \u201cpricing area.\u201d The size and location of the pricing area during the relevant period, the number of other independent dealers inside the pricing area that defendant sold to as an Amoco dealer, the price that defendant charged others for motor fuel, and whether stations which defendants owned were located in the pricing area were all issues of fact.\n5. Fraud\u2014 facilitation \u2014 wholesale motor fuel \u2014 summary judgment\nThe trial court erred by granting summary judgment for defendant on plaintiffs civil conspiracy claim. North Carolina recognizes a cause of action for facilitating fraud and plaintiff presented evidence that service stations owned by defendants and located near plaintiff\u2019s station sold motor fuel to the public at a price lower than that at which defendant sold fuel to plaintiff.\n6. Statutes of Limitation and Repose\u2014 wholesale motor fuel \u2014 fraud\u2014conspiracy\u2014unfair trade practices \u2014 breach of contract\nIn an action arising from the sale of a service station and a motor fuel sales agreement, defendants\u2019 statute of limitations claim did not preclude plaintiff\u2019s contract claims that accrued on or after 1 December 1995 where plaintiff filed his complaint on 25 June 1999, well within the required four-year period. The dates that fraud and conspiracy claims and unfair and deceptive trade practice claims began to run could not be determined from the record and presented genuine issues of material fact.\n7. Corporations-corporate veil\u2014 summary judgment erroneous\nDefendants were not protected by the corporate veil from claims of fraud, unfair and deceptive trade practice, and conspiracy arising from the transfer of a service station and a motor fuel pricing agreement.\n8. Contracts\u2014 ratification \u2014 motor fuel pricing formula\nPlaintiff did not ratify defendant\u2019s pricing of wholesale motor fuel where plaintiff did not bring suit until 3 years after he learned of an unexpected freight charge and only when plaintiff was in default, but awareness of the freight charge is inconclusive. Plaintiff did not have full knowledge of all material facts concerning the elements of the formula.\nAppeal by plaintiff/counterclaim-defendants from summary judgment entered 23 October 2000 by Judge Russell G. Walker, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 5 December 2001.\nMichelle D. Reingold, for plaintiff/counterclaim-defendants-appellants.\nHendrick Law Firm, by T. Paul Hendrick and Matthew H. Bryant, for defendants-appellees." }, "file_name": "0038-01", "first_page_order": 72, "last_page_order": 91 }