Here, Market America has failed to cite any evidence that it was or is entitled to retain commissions earned by Defendants prior to the date of their suspension. In fact, Market America has not even addressed Defendants' motion as to this counterclaim in its summary judgment brief. This Court finds, therefore, that there are no genuine issues of material fact as to Defendants' money had and received counterclaim and, therefore, they are entitled to judgment as a matter of law with the actual amount of damages to be determined at trial. Accordingly, Defendants' motion for summary judgment as to this counterclaim is granted subject to a determination during trial of damages to be awarded, if any.O. Defendants' Counterclaim for Breach of Contract Lastly, Defendants allege that "after Defendants appealed their suspensions within the time set out in the Career Manual, Market America failed to comply with . . . the Career Manual, which required it to provide written notice of [Market America]'s decision regarding their appeals and allow a hearing if requested." They further allege that "Market America's failure to comply with . . . the Career Manual constitutes a breach of contract." With their motion for summary judgment, Defendants argue that, as to this claim, there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. This Court agrees. As noted above, to establish a breach of contract, the complaining party must prove that (1) a valid contract was made, (2) obligations were assumed under the contract, and (3) the opposing party failed to fulfill--or breached--those obligations. Here, Market America does not contest that the Distributor Agreements were valid and that they incorporated by reference the provisions of the Career Manual. Pursuant to the relevant terms of the Career Manual, it assumed an obligation to "review [an] appeal and decide on actions to be implemented" when an independent distributor files a written request within "15 business days from the postmarked certified [suspension] letter . . . ." Defendants have set forth sufficient evidence indicating that they filed such written requests in a timely fashion. Market America has neither challenged the validity of Defendants' written appeals, nor the fact that it assumed the obligations cited above. Most importantly, it has failed to rebut Defendants' allegation that they have never received a hearing. As such, Defendants' motion for summary judgment as to this counterclaim is granted subject to a determination during trial of damages to be awarded, if any.V. CONCLUSIONFor the foregoing reasons, this Court concludes that Defendants' Motion for Summary Judgment filed with respect to Market America's claim for breach of contract is granted in part and denied in part. To the extent that Market America's claim for breach of contract relies on alleged violations of (1) the competition restriction or trade secrets clause contained in paragraph 21 of each Independent Distributor Application and Agreement ("Distributor Agreement"), (2) paragraph 26 of the Certified Trainer Agreements, or (3) paragraph 3 or subparagraph 4A of the Advisory Council Agreements, Defendants' Motion for Summary Judgment is granted and that portion of the claim is dismissed with prejudice. However, to the extent that Market America's claim for breach of contract relies on alleged violations of (1) the excerpt from the Professional Service Package Agreements cited by Market America in its summary judgment briefs and identified by this Court in the Memorandum Opinion to be filed forthwith, (2) paragraphs 5 or 25 of the Certified Trainer Agreements, or (3) paragraph 2 or subparagraph 4B of the Advisory Council Agreements, Defendants' Motion for Summary Judgment is denied.This Court further concludes that Defendants' Motion for Summary Judgment filed with respect to Market America's claim for tortious interference with contract is granted and the claim is dismissed with prejudice.This Court further concludes that both Defendants' Motion for Summary Judgment and Market America's Motion for Partial Summary Judgment filed with respect to Defendants' counterclaim for libel are denied. This Court further concludes that both Defendants' Motion for Summary Judgment and Market America's Motion for Partial Summary Judgment filed with respect to Defendants' counterclaim for slander are denied.This Court further concludes that both Defendants' Motion for Summary Judgment and Market America's Motion for Partial Summary Judgment filed with respect to Defendants' counterclaim for unfair and deceptive trade practices are denied. This Court further concludes that Defendants' Motion for Summary Judgment filed with respect to Defendants' counterclaim for money had and received is granted subject to a determination during trial of damages to be awarded, if any. Accordingly, Market America's Motion for Partial Summary Judgment filed with respect to this counterclaim is denied.This Court further concludes that Defendants' Motion for Summary Judgment filed with respect to Defendants' counterclaim for breach of contract (relating to Market America's appeal procedures) is granted subject to a determination during trial of damages to be awarded, if any. Accordingly, Market America's Motion for Partial Summary Judgment filed with respect to this counterclaim is denied.An Order and Judgment in accordance with this Memorandum Opinion has been previously filed.This the 15th day of April, 1999.James A. BeatyUnited States District JudgeMARKET AMERICA, INC., Plaintiff, v. RAY ROSSI, et al., Defendants. UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 1 :97CV0089 1 April 15, 1999, Decided April 15, 1999, Filed; April 16, 1999, Entered on Docket DISPOSITION: Defendants' Motion for Summary Judgment granted in part and denied in part and Market America's Motion for Partial Summary Judgment granted in part and denied in part. JUDGES: James A. Beaty, United States District Judge. OPINIONBY: James A. Beaty OPINION: MEMORANDUM OPINION BEATY, District Judge. I. INTRODUCTION This matter is before the Court on Defendants Ray Rossi ("Rossi"), Tandy Brown ("Brown"), Craig Melton ("Melton"), Phil Lane, Julia Lane, Sheri Frey Conners, and Mike Perrault's Motion for Summary Judgment and Plaintiff Market America, Inc.'s, Motion for Partial Summary Judgment... For the reasons stated herein, Defendants' motion is granted in part and
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