Morgan's Ferry Productions, LLC v. Rudd , 18 F. App'x 111 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MORGAN’S FERRY PRODUCTIONS, LLC, 
a California Limited Liability
Company,
Plaintiff-Appellant,
v.
ALICIA RUDD, an individual; RUDD  No. 00-1731
DOGS, INCORPORATED, a corporation,
Defendants-Appellees,
and
DOES 1-10, inclusive,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CA-99-38-7-BR)
Submitted: May 31, 2001
Decided: September 7, 2001
Before WILKINS and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marc Zwerling, Portland, Oregon; Steven Wolfe Thompson, WOLFE
THOMPSON, L.L.C., Las Vegas, Nevada, for Appellant. Roy C.
2 MORGAN’S FERRY PRODUCTIONS v. RUDD
Bain, BAIN & RODZIK, P.C., Wilmington, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Morgan’s Ferry Productions appeals the district court’s grant of
Defendant Rudd’s motion for judgment as a matter of law at the close
of Plaintiff’s evidence. Finding no error in the district court’s ruling,
we affirm.
Morgan’s Ferry hired Rudd to provide a mule to be used in produc-
tion of the movie, "Morgan’s Ferry," and to be the wrangler, or han-
dler, of the mule while it was participating in the movie. As a result
of problems with the mule and delays allegedly resulting from those
problems, Morgan’s Ferry sued Rudd for breach of contract, fraud,
and negligent misrepresentation. At the close of Morgan’s Ferry’s
evidence, the district court granted Rudd’s motion for judgment as a
matter of law and dismissed the case.
A motion for judgment as a matter of law should be granted if the
district court determines that the nonmoving party "has been fully
heard . . . and there is no legally sufficient evidentiary basis for a rea-
sonable jury to find for that party." Fed. R. Civ. P. 50(a)(1); Brown
v. CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir. 1994). Judgment as
a matter of law is only appropriate if, viewing the evidence in the
light most favorable to the nonmoving party, the court concludes that
"‘a reasonable trier of fact could draw only one conclusion from the
evidence.’" Brown, 18 F.3d at 248. The court should draw reasonable
inferences for the nonmoving party, but may not indulge in sheer
speculation. Gibson v. Old Town Trolley Tours of Washington, D.C.,
Inc., 160 F.3d 177, 181 (4th Cir. 1998). A district court sitting in
MORGAN’S FERRY PRODUCTIONS v. RUDD 3
diversity applies the federal standard in ruling on a motion for judg-
ment as a matter of law. DeMaine v. Bank One, Akron, N.A., 904 F.2d
219, 220 (4th Cir. 1990). Such a motion should be granted if plaintiff
has not produced substantial evidence to support his claim. Id. This
court reviews the grant or denial of such a motion de novo, with the
evidence viewed in the light most favorable to the nonmoving party.
Chaudhry v. Gallerizzo, 174 F.3d 394, 404-05 (4th Cir. 1999).
Under North Carolina law, a breach of contract claim must allege
that a valid contract existed between the parties, state that defendant
breached the terms thereof, explain the facts constituting the breach,
and specify the damages resulting from such breach. Claggett v. Wake
Forest Univ., 486 S.E.2d 443, 446 (N.C. App. 1997). In its complaint,
Morgan’s Ferry alleged that it "hired Rudd to provide a mule which
[Rudd] owned and which was trained to sit on its haunches and to
provide ‘mule wrangler’ services in connection with the mule’s
scenes in the [p]icture." The complaint further alleged that Rudd
breached these obligations "in that [Rudd] did not actually own the
mule, the mule was not trained to sit on its haunches, and [Rudd] did
not know how to control the mule." There was no written contract
between Morgan’s Ferry and Rudd. Although Rudd received a copy
of the script prior to the beginning of shooting, the script was primar-
ily a general description of the scenes that provided virtually no detail
of the actions expected of the mule. The evidence at trial revealed that
the only firm condition of Rudd’s employment was that the mule pull
a cart that could hold five adults. The ability of the mule to sit on its
haunches was desired by Morgan’s Ferry, but was not a condition of
employment, as Rudd only agreed to attempt to train the mule to per-
form this action. Ownership of the mule was likewise not a term of
the agreement, nor did Rudd state that she owned the mule. Rather,
she stated that she "had" a mule. Finally, the agreement did not
explicitly define Rudd’s duties as a "wrangler." Even accepting the
argument of Morgan’s Ferry that the doctrine of implication should
be applied to supply missing terms of the agreement, the Plaintiff’s
evidence of Rudd’s failure to properly handle the mule demonstrated
at most isolated incidents of delay or difficulty in persuading the mule
to perform as scripted that occurred in the context of numerous other
delays in filming.
Morgan’s Ferry alleged that Rudd fraudulently stated that she
owned a mule, that the mule was trained to sit on its haunches, that
4 MORGAN’S FERRY PRODUCTIONS v. RUDD
she was a mule wrangler and was trained and experienced in handling
the mule, and that she would provide all services for a flat fee of
$2500. In the alternative, Morgan’s Ferry alleged that Rudd’s repre-
sentations amounted to the tort of negligent misrepresentation. Under
North Carolina law, the "essential elements of fraud are: (1) [f]alse
representation or concealment of a material fact, (2) reasonably calcu-
lated to deceive, (3) made with intent to deceive, (4) which does in
fact deceive, (5) resulting in damage to the injured party." Rowan
County Bd. of Educ. v. United States Gypsum Co., 418 S.E.2d 648,
658 (N.C. 1992) (internal quotation marks omitted). All averments of
fraud and circumstances constituting fraud must be stated with partic-
ularity. Fed. R. Civ. P. 9(b); see also Rowan County, 418 S.E.2d at
659 ("There is a requirement of specificity as to the element of a rep-
resentation made by the alleged defrauder. The representation must be
definite and specific."). The tort of negligent misrepresentation occurs
when a party justifiably relies to his detriment on information sup-
plied in the course of business without reasonable care by one who
owed the relying party a duty of care, and suffers harm as a result.
Helms v. Holland, 478 S.E.2d 513, 517 (N.C. App. 1996).
During the formation of the agreement between Morgan’s Ferry
and Rudd, two employees of Morgan’s Ferry discussed the terms and
conditions of employment with Rudd. These witnesses testified that
at no time did Rudd affirmatively state that she owned the mule, but
merely stated she "had" a mule. Further, Rudd only agreed to try to
train the mule to sit on its haunches. At most, the testimony estab-
lished that Rudd stated that she believed she could train the mule to
perform this action before shooting began. Further, neither employee
testified that Rudd told them she was a mule wrangler. Rudd appar-
ently presented her resume that indicated previous experience work-
ing with mules and a variety of animals, but the record is devoid of
any evidence of an affirmative representation by Rudd as alleged by
Morgan’s Ferry. With regard to the fee for her services, the produc-
tion manager for Morgan’s Ferry explained that the $2500 fee was
based on a five day shooting schedule because of uncertainty as to
how many days of shooting would be needed to capture all the scenes
involving the mule. When additional days became necessary, Rudd
required additional payment for her time and the use of the mule, at
a rate of $450 per day. There was no evidence that Rudd agreed to
supply an unlimited number of days of service for $2500. We agree
MORGAN’S FERRY PRODUCTIONS v. RUDD 5
with the district court’s conclusion that "there’s no evidence to sup-
port a fraud claim or negligent misrepresentation claim."
Finally, our review of the record convinces us that Morgan’s
Ferry’s evidence of damages, an element of each cause of action, was
insufficient. North Carolina law does not allow an award of damages
based upon speculation or conjecture. See Weyerhaeuser Co. v. God-
win Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977).
Accordingly, we affirm the judgment of the district court. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED