Académique Documents
Professionnel Documents
Culture Documents
No. 08-1279
CAMPUS
LLC;
CR
MERC
LLC;
ROSEN
WT
Plaintiffs - Appellants,
v.
BMW MANUFACTURING COMPANY
Manufacturing Corp.,
LLC,
formerly
known
as
BMW
Defendant Appellee,
and
SOUTH CAROLINA DEPARTMENT OF COMMERCE; DWIGHT F. DRAKE;
NELSON MULLINS RILEY & SCARBOROUGH LLP; CLEMSON UNIVERSITY;
CLEMSON UNIVERSITY FOUNDATION; CLEMSON UNIVERSITY REAL
ESTATE FOUNDATION; AMREC; THE FURMAN COMPANY; STEPHEN P.
NAVARRO,
Parties-in-Interest.
No. 08-1448
CAMPUS
LLC;
CR
MERC
LLC;
ROSEN
WT
Plaintiffs - Appellants,
v.
BMW MANUFACTURING COMPANY
Manufacturing Corp.,
LLC,
formerly
Defendant Appellee,
known
as
BMW
and
SOUTH CAROLINA DEPARTMENT OF COMMERCE; DWIGHT F. DRAKE;
NELSON MULLINS RILEY & SCARBOROUGH LLP; CLEMSON UNIVERSITY;
CLEMSON UNIVERSITY FOUNDATION; CLEMSON UNIVERSITY REAL
ESTATE FOUNDATION; AMREC; THE FURMAN COMPANY; STEPHEN P.
NAVARRO,
Parties-in-Interest.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:05-cv-02152-GRA)
Argued:
Decided:
January 8, 2010
Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.
Management
LLC,
appeals
from
the
grant
of
summary
when
it
can
dispose
of
case
on
another
basis.
is
thus
not
necessary
to
reach
the
question
of
whether
stages
of
project
3
that
culminated
in
the
construction
of
Clemson
Universitys
(Clemson)
Carroll
A.
In 2001,
Carolina,
which
they
explored
could
possible
collaborate.
educational
Clemson
initiatives
raised
the
idea
on
of
indicated
tunnel,
but
that
it
proposed
was
an
not
interested
alternative
plan
in
funding
wind
of
partnering
with
The
Clemson
University
Foundation
(CUF),
the
April
4,
AMREC)
2002,
signed
Rosen
a
(through
nine-page
CR-MERC)
agreement
and
(the
Clemson
2002
the state of South Carolina would govern all issues arising out
of the agreement.
2002
Agreement,
however,
called
for
the
parties
to
J.A. 800
(emphasis in original). 1
The
subject
areas
covered
by
the
Exhibits
encompassed
and
parties
failed
areas.
USED:
developed.
Exhibit
to
reach
F,
the
At
drafting
an
agreement
Reciprocal
session,
on
all
Easements
however,
of
the
and
the
subject
Operating
The parties also did not sign Exhibit G, which would have
covered the allocation of parcels of land.
Rosens attorneys thereafter commenced the drafting of a
revised Amended and Restated Master Agreement to incorporate
the
non-used
entitled
Exhibits
the
Restrictions,
and
and
within
Declaration
of
Easements
(CCR).
combined
Covenants,
The
agreement
Conditions,
parties,
however,
of
BMW
and
preparations
in
during
continued
the
their
summer
and
fall
negotiations
and
2002,
BMW identified
Carolina
Department
of
See S.C.
Commerce
(SCDOC)
formally
proposed incentives for BMW under the Bond Act, including $25
million earmarked for the development of the GEC.
After the
BMW,
from
the
privately-funded
wind
tunnel
in
which
Rosen
was
tunnel
project
as
reflection
of
the
companys
January
expressed
project.
Rosen
2003,
concerns
Rosen
about
sent
the
letter
progress
to
of
Clemson
the
wind
that
tunnel
was
no
longer
committed
to
the
project,
but
Rosen
construct
the
terminable-at-will
wind
tunnel.
clause
Specifically
of
the
2002
referencing
Agreement,
the
Clemsons
that
the
2002
Agreement
constituted
mere
letter
of
intent and that the wind tunnel deal was not final because all
of the Exhibits to the 2002 Agreement had not been completed.
A couple weeks later, Clemson emailed Rosen a new proposed
deal structure with two alternatives entitled Option A and
Option B.
Clemson.
Clemson
found
Rosens
counterproposal
unacceptable,
however.
consider a different site for the GEC and began to shift its
focus toward the acquisition of a parcel of land separate from
the property Rosen was acquiring an option Clemson referred to
as Option C.
J.A. 1791.
The 2003 Agreement provided for the sale of land for the
that
the
2002
Agreement
had
failed
to
address.
J.A. 690.
judgment,
which
the
district
He thus filed
granted.
Rosen
recover
damages
management fees.
the
parties
terms
of
lost
profits,
We disagree.
never
the
for
reached
alleged
2002
development
fees,
and
agreement
on
Agreement;
all
(2)
of
the
the
essential
2003
Agreement
II.
We review a grant of summary judgment de novo on appeal,
applying the same standard as the trial court without deference
to the trial court.
when the court, viewing the record as a whole and in the light
most favorable to the nonmoving party, determines that there
exists no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
FED.
242,
248-50
(1986);
Hill
v.
Lockheed
Martin
Logistics
Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc).
As the nonmoving
one
inference
upon
scintilla of evidence.
Liberty
Mut.
Rather,
the
Ins.
another,
the
mere
existence
105
must
F.3d
be
188,
such
191
that
(4th
Cir.
the
of
Co.,
evidence
or
1997).
fact-finder
See Anderson,
III.
On appeal, Rosen contends that the district court erred in
granting summary judgment against him in light of the evidence
presented.
We disagree.
A tortious interference
enforceable
interference claim.
contract
to
support
Rosens
tortious
the minds between the parties with regard to all the essential
and material terms of the agreement.
S.E.2d 891, 893-94 (S.C. 1989).
Hughes v.
Co.,
272
F.
Supp.
2d
566,
575
(D.S.C.
2003)
(citing
allocations,
divisions
of
parcels,
and
restrictive
sufficient
to
show
with
reasonable
certainty
the
and necessary terms remained open for future negotiation and the
parties failed to reach an agreement on these terms, the 2002
Agreement never rose to the level of an enforceable agreement.
See Burbach Broadcasting Co. of Delaware v. Elkins Radio Corp.,
278 F.3d 401, 407 (4th Cir. 2002) (stating that, in preliminary
negotiations, when terms are indefinite and basic terms have not
been agreed upon, there is no basis to fashion a remedy, and
thus no enforceable contract). 2
Furthermore, assuming arguendo that the parties had formed
a
valid,
enforceable
contract,
Rosens
tortious
interference
claim still would not pass muster and withstand summary judgment
because there was no genuine issue of material fact concerning
13
the
element
of
absence
of
justification.
Absence
of
Inc. v. Wynn Beauty Supply Co., 992 F.2d 59, 62 (4th Cir. 1993)
(applying South Carolina law).
when
acting
interests
in
or
the
legal
advancement
rights.
of
its
Webb,
legitimate
418
business
S.E.2d
at
561.
improper
liability.
purpose
must
predominate
in
order
to
create
means,
misrepresentation,
relations
with
(suggesting
means).
such
as
deceit,
Clemson.
that
violence,
such
or
See
threats,
duress,
Waldrep
actions
to
interfere
Bros.,
would
bribery,
992
in
F.2d
constitute
fraud,
at
his
63
improper
however,
does
not
exhibit
the
This alleged
requisite
malice
or
in
pursuit
of
its
legitimate
interests
in
founding
an
Contrary to Rosens
find
suitable
location
for
the
GEC
and
retained
sum,
of
given
the
that
minds
Rosen
on
all
and
the
Clemson
never
reached
essential
terms
and
BMWs
conduct did not involve any improper means or purpose, Rosen has
not presented evidence sufficient to create a genuine issue of
material fact concerning the existence of the contract or the
absence of justification.
granted
summary
judgment
favor
of
BMW
on
the
claim
of
Agreement
failed
to
create
valid
and
enforceable
renders
this
argument
meritless.
Therefore,
the
district
relations,
(1)
the
plaintiff
intentionally
must
interfered
prove
with
the
that
the
plaintiffs
improper
Crandall,
methods;
395
interference
(3)
S.E.2d
cannot
causing
injury
180.
at
stand
where
to
claim
the
the
for
plaintiff
plaintiff.
prospective
is
able
to
contractual
relations
contractual relations.
See id.
for
prospective
interference
thus
lie
only
with
where
the
does
not
mean
full
aggrieved
party
relations
will
[was]
Id.
for
interference
with
prospective
contractual
relations
claim
he
otherwise
[b]ecause
there
would
was
have
valid
had.
See
contract
id.
in
(holding
existence
that
[between
for
interference
relations.).
with
prospective
contractual
the 2003 Agreement was less profitable to him than it would have
been without BMWs interference.
As
previously
explained,
See id.
moreover,
Rosen
has
not
with
prospective
contractual
relations
claim.
the
claim
of
intentional
interference
with
prospective
contractual relations.
C.
Rosens third cause of action alleged that BMW engaged in a
civil conspiracy with agents and representatives of Clemson and
the State of South Carolina.
conspiracy
claim
combination
of
two
contains
or
more
following
persons,
17
(2)
elements:
for
the
(1)
purpose
of
v.
Waites,
(citation omitted).
387
S.E.2d
91,
95
(S.C.
Ct.
App.
1989)
was
to
ruin
or
damage
the
business
of
another.
the
conspiracy.
record
is
devoid
of
any
evidence
suggesting
business.
telephone
Although
calls,
Rosen
and
claims
emails
that
exchanged
there
were
between
BMW,
up
his
insufficient.
property
and
contract
rights,
such
claims
are
its desire to establish the GEC, which in and of itself does not
18
The only
harm
was
that
BMW
may
have
intended
to
cause
Rosen
the
increased
benefits
for
one
entity
may
come
at
the
economy.
Id.
Consequently,
although
party
cannot
Rosens
entities.
See
RESTATEMENT (SECOND)
OF
TORTS
768
The
19
of
its
entitlement
to
seek
out
those
ventures
most
BMW
special
the
fact
damages
in
connection
law,
the
damages
Carolina
is
that
he
has
with
not
the
allegedly
adequately
claim.
alleged
Under
resulting
South
from
the
resulting
S.E.2d at 95.
from
the
other
claims.
See
Vaught,
387
profits
and
loss
of
identical
to
the
action.
We
therefore
development
damages
sought
affirm
the
and
in
management
Rosens
district
fees,
are
other
causes
of
courts
grant
of
20
IV.
Viewing
the
record
as
whole
and
in
the
light
most
21