Whitfield v. John Bourne Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY WHITFIELD, d/b/a Whitfield 
Realty,
Plaintiff-Appellant,
v.
JOHN BOURNE COMPANY; JOHN
BOURNE, JR.; JOHN BOURNE, III;
MARY BOURNE BOS; DPS
ASSOCIATES OF CHARLESTON,
INCORPORATED, a/k/a ReMax
Professional Realty; DAVID WERTAN;
FRED RICE; BULWINKLE REAL ESTATE
COMPANY, INCORPORATED; CARSON J.
BULWINKLE; MERYL BULWINKLE;
LETTY PARRISH; FIRST COASTAL
PROPERTIES; MORRIS BOURNE; MORRIS
 No. 99-1010
BOURNE ASSOCIATES; CANDACE N.
PRATT;
Defendants-Appellees,
and
UNITED STATES OF AMERICA,
Movant-Appellee,
and
EVE OLASOV,
Defendant.
GEORGE VESSELL,
Movant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CA-94-939-2-8)
2 WHITFIELD v. JOHN BOURNE COMPANY
Argued: September 28, 2000
Decided: July 26, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
Frederick P. STAMP, Jr., Chief United States District Judge
for the Northern District of West Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kerry Warren Koon, Charleston, South Carolina, for
Appellant. William Howell Morrison, MOORE & VAN ALLEN,
P.L.L.C., Charleston, South Carolina, for Appellee. ON BRIEF:
Rebecca Guental Fulmer, Desa Ann Rice Ballard, DESA BALLARD,
P.A., West Columbia, South Carolina, for Appellant. Richard C.
Burke, MOORE & VAN ALLEN, P.L.L.C., Charleston, South Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Anthony Whitfield ("Whitfield") brings this appeal pur-
suant to 28 U.S.C. § 1291 (1986). Appellant Whitfield, doing busi-
ness as Whitfield Realty, brought this action in April 1994 against
John Bourne Company, John Bourne, Jr., John Bourne, III, Mary
Bourne Bos, DPS Associates of Charleston, Incorporated a/k/a
WHITFIELD v. JOHN BOURNE COMPANY 3
ReMax Professional Realty ("ReMax"), David Wertan, Fred Rice,
Bulwinkle Real Estate Company, Incorporated, Carson J. Bulwinkle,
Meryl Bulwinkle, Letty Parrish, First Coastal Properties, Morris
Bourne, Morris Bourne Associates, Candace N. Pratt and the United
States of America (collectively referred to as "appellees"), alleging
that the appellees have engaged in a variety of activities constituting
unfair trade practices, antitrust violations, negligence and conspiracy
resulting in an unfair and illegal manipulation of the process of resale
of properties previously repossessed by the Department of Veterans
Affairs.
On appeal, appellant Whitfield alleges that the district court com-
mitted reversible error when it granted summary judgment to all
appellees on the basis of its ruling that Whitfield’s evidence of dam-
ages was too speculative to support a jury verdict. Appellant also
appeals the grant of summary judgment by the district court to all
appellees on the claim for civil conspiracy on the basis of its ruling
that Whitfield was required to demonstrate that the appellees con-
spired for the purposes of injuring Whitfield in particular and on
Whitfield’s cause of action seeking injunctive relief under the Sher-
man Antitrust Act. Appellant also appeals the grant of summary judg-
ment in favor of ReMax, David Wertan, Fred Rice, Letty Parrish,
First Coastal Properties, Morris Bourne, Morris Bourne Associates,
and Candace Pratt (collectively "referral appellees") on the unfair
trade practices claim on the basis of its ruling that Whitfield has failed
to demonstrate that the actions of those appellees were capable of rep-
etition and on the negligence claim on the grounds that those appel-
lees owed Whitfield no duty. Further, Whitfield alleges that the
district court erred in failing to require appellees John Bourne Com-
pany and Bulwinkle Real Estate Company to disclose their customers
who purchased homes from the Department of Veterans Affairs, in
failing to require appellees David Wertan and Fred Rice to produce
their personal bank account records, and in granting the motion by the
United States Department of Veterans Affairs to quash appellant’s
subpoena for records pertaining to the investigation of Property Man-
agement Brokers by the Office of Inspector General. Appellees
respond that the district court committed no reversible error when it
granted summary judgment in favor of the appellees and that the dis-
trict court did not abuse its discretion in denying Whitfield’s discov-
ery requests. For the reasons stated below, we affirm.
4 WHITFIELD v. JOHN BOURNE COMPANY
I.
The Department of Veterans Affairs ("DVA") is involved in the
resale of properties because, as a benefit to veterans, the DVA will
often cosign a note with a veteran enabling the veteran to obtain
financing to purchase real estate. If the veteran defaults on the note,
the DVA will satisfy the mortgage and acquire title to the real estate.
The DVA then attempts to resell the property. When properties are
acquired by the DVA, they are assigned to the supervision of various
property management brokers ("PM brokers"). The PM brokers pro-
vide the DVA with many services, including securing, winterizing,
maintaining, and preparing the properties for resale. The PM brokers
also deal with subcontractors who do various inspections and repairs
as directed by the DVA. In addition, the PM brokers provide the DVA
with a valuation opinion of the property that assists the DVA in set-
ting the asking price for the property. Although the PM brokers are
compensated for the services they provide to the DVA, they are also
real estate companies or professionals and are able to earn commis-
sions on real estate transactions handled successfully for their real
estate clients.
After a property is prepared for sale, the DVA "lists" the property
for sale by newspaper advertisement. The listing is the first announce-
ment to other realtors and to the public of the availability and price
of the property. After the listing, the DVA accepts purchase offers for
a limited time, often ten days. The highest bidder purchases the prop-
erty subject to DVA approval and the minimum price. During the
offer period, any licensed real estate professional can submit an offer
to the DVA on behalf of a prospective purchaser. Upon closing of the
sale, the real estate professional representing the successful purchaser
earns up to a six percent sales commission paid by the DVA. PM bro-
kers are permitted to seek to earn the DVA-paid commission by rep-
resenting purchasers for properties under their management, subject
to certain rules.
Appellees John Bourne Company and Bulwinkle Real Estate Com-
pany ("appellee PM brokers") have served as PM brokers in three
South Carolina counties since 1987, except for the period from April
1, 1993 until October 1, 1994 when the John Bourne Company had
the exclusive contract. While the John Bourne Company had the
WHITFIELD v. JOHN BOURNE COMPANY 5
exclusive contract, it issued a memorandum to all real estate brokers
in the tri-county area, including appellant Whitfield, advising them of
the contract with the DVA. The property management contract
between the DVA and the John Bourne Company contained the fol-
lowing provision:
The contractor [the John Bourne Company], members of
his/her business organization and member of his/her imme-
diate family or household are prohibited from selling VA
properties managed under this contract during the first fif-
teen days of initial listing.
Additionally, the contract included an "anti-kickback" provision that
prohibited the contractor [PM broker] from receiving things of value
from any person providing services under their contract with any sub-
contractors or prospective subcontractors. "Subcontractor" is defined
as any person other than the contractor "who offers to furnish or fur-
nishes any supplies, materials, equipment, or services of any kind
under a prime contract or a subcontract" entered into with the contrac-
tor.
Appellant Whitfield is a real estate broker that specializes in the
resale of DVA properties, as well as in the resale of other government
properties, including properties under the management of the Depart-
ment of Housing and Urban Development ("HUD") and the Home
Owners Assistance Program ("HAP"). Appellant alleges that the PM
brokers, in the course of performing their duties, acquired confidential
information concerning DVA properties that was not readily available
to Whitfield or to other real estate professionals competing in the
market. Appellant further alleges that this confidential information
gave the PM brokers an inherent advantage and that the John Bourne
Company and Bulwinkle Real Estate Company used such "insider
information" to the detriment of the appellant and other realtors in the
Charleston area. Specifically, appellant alleges that John Bourne
Company and Bulwinkle Real Estate Company disclosed confidential
information on matters from pest inspections to system checks calcu-
lated to allow their clients a better opportunity than others to present
a winning bid. Appellant also alleges that the appellee PM brokers
posted unauthorized signs on DVA properties advertising the appellee
PM brokers’s own services as sales representatives, showed proper-
6 WHITFIELD v. JOHN BOURNE COMPANY
ties to prospective purchasers prior to the listing of those properties
in violation of DVA policy, and, in at least one case, represented the
existence of a secret contract in the DVA office through which confi-
dential information could be obtained. Moreover, appellant alleges
that the John Bourne Company entered into improper agreements that
referred confidential information and clients to the referral appellees
for fees in violation of the contract with the DVA and to the detriment
of appellant.
Appellant Whitfield alleges that this unfair competition cost him
business and profits and, therefore, appellant brought this civil action
against the appellees in the district court. The district court granted a
stay so that arbitration could be pursued, but vacated that stay when
it became apparent that arbitration was not possible. Appellant filed
an amended complaint and a second amended complaint. During the
course of discovery, appellant sought the names of those purchasing
DVA properties through the John Bourne Company and Bulwinkle
Real Estate Company and the personal bank account records from
certain referral appellees, but those discovery requests were denied by
the district court. Appellees then filed motions for summary judg-
ment. The district court granted summary judgment to all appellees
on appellant’s causes of action for civil conspiracy, under the Sher-
man Act Sections I and II, for Sherman Act injunctive relief, under
RICO, and for breach of fiduciary duty. The district court also granted
summary judgment on appellant’s causes of action for negligence and
for violation of the South Carolina Unfair Trade Practices Act
("SCUTPA") in favor of referral appellees. The district court also
granted all appellees summary judgment on the grounds "that the
Plaintiff’s evidence of damages proximately resulting from the
alleged conduct of any Defendant was entirely speculative and could
not serve as the basis of a jury verdict in this case." The district court
also granted the government’s amended motion to quash a subpoena
for records of the DVA office of the Inspector General. Finally, the
district court denied appellant’s motion to alter or amend the judg-
ment. Appellant timely filed his notice of appeal before this Court.
II.
On appeal, a district court’s decision to grant summary judgment
is subject to de novo review. See Sheppard & Enoch Pratt Hosp., Inc.
WHITFIELD v. JOHN BOURNE COMPANY 7
v. Travelers Ins. Co., 32 F.3d 120, 123 (4th Cir. 1994); Myers v.
Finkle, 950 F.2d 165, 167 (4th Cir. 1991).
Under Federal Rule of Civil Procedure 56(c), summary judgment
is appropriate if "the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the mov-
ing party is entitled to a judgment as a matter of law." The party seek-
ing summary judgment bears the initial burden of showing the
absence of any issues of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). However, as the United States Supreme
Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986), Rule 56(e) itself provides that "a party opposing a properly
supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [the] pleading, but . . . must set forth specific
facts showing that there is a genuine issue for trial.’" "The inquiry
performed is the threshold inquiry of determining whether there is the
need for a trial — whether, in other words, there are any genuine fac-
tual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party." Id.
at 250; see also Charbonnages de France v. Smith, 597 F.2d 406, 414
(4th Cir. 1979) (Summary judgment "should be granted only where
it is perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law." (citing
Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.
1950))). In reviewing the supported underlying facts, all inferences
must be viewed in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
A.
Appellant Whitfield contends that the district court erred when it
granted summary judgment on the basis of its ruling that Whitfield’s
evidence of damages was too speculative to support a jury verdict.
Whitfield argues that the evidence proves that he lost commission
income of at least $347,500.00 between 1987 and 1996. Appellant
also argues, in the alternative, that his loss can be reasonably calcu-
lated at $167,500.00 under a more conservative method. Appellant
Whitfield further contends that he lost at least $89,998.00 in promo-
8 WHITFIELD v. JOHN BOURNE COMPANY
tional expenditures in competing for sales of DVA properties that
were sold through the wrongful activities of the appellees. Appellant
argues that, because the appellees’ wrongful conduct has limited his
ability to prove damages, he should be held to a lower standard of cer-
tainty when proving damages. Appellees respond that appellant’s evi-
dence of damages is speculative because it is predicated upon
assumptions and questionable probabilities. Appellees further argue
that appellant’s evidence of damages is flawed because of several fac-
tors, including fluctuation in the markets, failure to account for spikes
in the number of home sales due to military base closings, and the flat
assumption that each sale made by the appellees in the markets came
at the direct expense of Whitfield. Moreover, appellees assert that
appellant has misconstrued applicable case law and the "reasonable
certainty" standard.
The most recent clarification of South Carolina’s standard for
recovery of lost profits comes in Global Prot. Corp. v. Halbersberg,
503 S.E.2d 483 (S.C. Ct. App. 1998). The Global court reiterated:
The law does not require absolute certainty of data upon
which lost profits are to be estimated, but all that is required
is such reasonable certainty that damages may not be based
wholly upon speculation and conjecture, and it is sufficient
if there is a certain standard or fixed method by which prof-
its sought to be recovered may be estimated and determined
with a fair degree of accuracy.
Id. at 487 (citing Beck v. Clarkson, 387 S.E.2d 681, 684 (S.C. Ct.
App. 1989) (quoting South Carolina Fin. Corp. of Anderson v. West
Side Fin. Co., 113 S.E.2d 329 (S.C. 1960))). The crucial requirement
is that lost profits be "established with reasonable certainty." South
Carolina Fin. Corp., 113 S.E.2d at 336. The Global court also found:
Proof may be established through expert testimony, eco-
nomic and financial data, market surveys and analyses, busi-
ness records of similar enterprises, comparison with profit
performance of businesses similar in size, nature and loca-
tion, comparison with profit history of plaintiff’s successor,
comparison of similar business owned by plaintiff himself,
WHITFIELD v. JOHN BOURNE COMPANY 9
and use of economic and financial data and expert testi-
mony.
503 S.E.2d at 487 (citing Drews Co. v. Ledwith-Wolfe Assocs., 371
S.E.2d 532 (S.C. 1988)). South Carolina courts have referred to the
method of proving profits by comparing businesses similar in size,
nature, and location as the "yardstick" method. See Drews Co., 371
S.E.2d at 536.
Appellant Whitfield asserts that his lost income in the DVA market
may be measured by the "yardstick" method by comparing the par-
ties’ performances in the HAP and HUD markets. Appellant Whit-
field has testified that the DVA, HAP and HUD sales programs are
similar in that: (1) the purpose of each is to facilitate the resale of
homes by a government agency; (2) homes are sold on the limited ini-
tial bid period (ten or twenty days) with a first-come-first-served pro-
cedure after that initial bid period; (3) each program pays similar rates
of commission (five percent or six percent) with the entire commis-
sion going to the selling broker and (4) each program keeps repair and
pest inspection reports confidential from bidders. Whitfield offers
several facts in support of his calculation of losses:
(1) During 1993 and 1994, when only the Bourne Com-
pany served as PM broker, Bulwinkle’s sales declined from
60 properties in 1992 to 23 properties in 1993 and to 21
properties in 1994. Once Bulwinkle was reinstated as a PM
broker in 1995, Bulwinkle’s sales increased to 51 for 1995.
(2) In the HUD and HAP programs in which appellant
alleges Bourne and Bulwinkle companies enjoyed no advan-
tage, Whitfield sold 81 homes from 1993 until 1998, while
Bulwinkle sold 19 homes and Bourne sold seven homes for
the same period. In the HUD program, Whitfield sold 20
HUD homes, Bulwinkle sold 18 homes and Bourne sold six
homes in total for the years 1992, 1995, 1996 and 1997.
(3) From 1987 to 1995, in the DVA program, Bulwinkle
sold 286 DVA homes and Whitfield sold 147 homes.
10 WHITFIELD v. JOHN BOURNE COMPANY
Based upon that information, appellant Whitfield estimates that he
lost at least 139 sales over the period and, at an average commission
of $2,500.00 per sale, he lost $347,500.00 in commission income.
Appellant contends that on the basis of these market comparisons, a
jury could reasonably conclude that but for the appellees’ unfair activ-
ities in selling DVA properties, Whitfield’s DVA sales would have at
least equaled the DVA sales of Bulwinkle and Bourne. Applying the
"yardstick" method, appellant believes that a reasonable jury could
find that he lost $347,500.00 in commission income between 1987
and 1996.
Applying the reasonable certainty test, this Court cannot find that
appellant Whitfield has presented evidence of damages that could
support a jury verdict. A "yardstick" comparison between the DVA,
the HUD and the HAP markets does not allow this Court to reason-
ably calculate damages. Although the markets are in a similar loca-
tion, they are of a different size and nature that make them difficult
to compare. Moreover, appellant has not considered and accounted
for the differences inherent in the markets in his comparison. Appel-
lant makes general comparisons between the number of sales in the
DVA, HAP and HUD markets, but the disparity in sales numbers
could be explained by many reasons other than any unfair practices
by appellees in the DVA market. Appellant has failed to establish any
way in which the efforts and performance of appellant and the appel-
lees in their respective markets were comparable. Moreover, the dis-
parity in sales is not necessarily attributed to the actions of appellees.
There are other realtors and agencies involved in the sale of properties
and it is not a viable assumption that each and every sale by the appel-
lees worked to the disadvantage and at the expense of appellant.
Although appellant relies on Global as an example of market com-
parisons, the facts in that case were different. In Global, a manufac-
turer of condoms was permitted to compare sales in two nearly
identical markets to show the losses it sustained when another com-
pany distributed glow in the dark condoms, an identical product, in
wrapping identical to that of the plaintiff. 503 S.E.2d at 487. In the
Global case, the markets were nearly identical because both com-
prised large coastal vacation destinations. Additionally, the nearly
identical nature of the products on the market permitted an easier
comparison as well.
WHITFIELD v. JOHN BOURNE COMPANY 11
Even if the "yardstick" method applied in this case, appellant’s
numbers and estimates do not prove damages to a reasonable cer-
tainty. Statistics are not sufficient alone to establish damages in this
case. See Palmetto State Med. Ctr., Inc. v. Operation Lifeline, 117
F.3d 142, 149 (4th Cir. 1997) (finding evidence of damages to be
speculative and insufficient as a matter of law to establish financial
losses without an inquiry into the correlation between statistics and
the conduct of a defendant). Moreover, appellant relies on a handwrit-
ten chart detailing DVA sales commissions and estimated loss of mar-
ket share from the alleged unfair practices. Appellant Whitfield
admitted at his deposition that the document was put together quickly
and may be flawed and based on certain estimates. This Court also
questions the use of the statistics to demonstrate loss of expected mar-
ket share because it is difficult to determine whether appellant Whit-
field would have gained a measurable amount of market share had
there been no referral agreements in place.
In the alternative, appellant Whitfield also seeks to prove lost prof-
its by comparing the profit history of similar businesses that he has
conducted. Accordingly, Whitfield points to his involvement in the
HAP market. During appellant Whitfield’s three and one half year
experience in the HAP market, he had an average of 23 HAP sales
per year, but averaged only 16.3 DVA sales per year between 1987
and 1996. Appellant believes that under "conservative" methodology,
that evidence demonstrates that he should have a larger number of
sales in the DVA market and that he lost at least $167,500.00 in com-
mission income due to the unfair conduct of appellees.
The comparison of the profit history of Whitfield’s involvement in
the HAP market does not establish damages to a reasonable certainty.
Appellant Whitfield’s three and one half year experience with the
HAP market, although similar in sales procedure to that of the DVA
market, is not comparable because of fluctuation in the real estate
market and the influence of the glut of housing placed on the market
due to the Charleston naval base closure. Moreover, on a base level,
statistics from a three and one half year specialized market with fluc-
tuations are too tenuous to compare to the ten-year DVA market.
Appellant also seeks recovery for lost profits and loss of benefit of
promotional expenditures. Whitfield asserts that he lost $23,023.00
12 WHITFIELD v. JOHN BOURNE COMPANY
for advertising and $3,225.00 for courier services, postage, express
mail, and credit report fees in submitting offers on properties. Appel-
lant further asserts that he has lost money for photographing proper-
ties and for long distance telephone calls as well as the benefit of his
own time invested in training agents who left his employ as a result
of the improper conduct of the PM brokers which he values in excess
of $63,750.00. Again, appellant cites the Global case in which the
court held that an award of lost profits was not the full measure of
Global’s damages and permitted promotional costs and costs associ-
ated with developing and marketing its product. 503 S.E.2d at 488. As
the appellees point out, however, Global involved a trademark
infringement and the Global court’s determination that "recoverable
damages include compensation for all injury to plaintiff’s property or
business which is the nature and probable consequence of defendant’s
wrong" is limited to trademark infringement cases. Id. Because appel-
lant has presented this Court with no authority supporting the exten-
sion of South Carolina law governing the relatively narrow field of
recoverable trademark infringement damages to the instant facts,
appellees are still entitled to summary judgment on this issue.
Finally, appellant argues that he was "hampered" in his proof of
damages by the wrongful conduct of the appellees and that he should
be held to a lesser standard. Appellant relies on Minter v. Goct, Inc.,
473 S.E.2d 67 (S.C. Ct. App. 1996). In Minter, this Court stated:
Where the wrongful act of the defendant is of such nature
as to prevent determination of the exact amount of damages,
the defendant is not allowed to insist on absolute certainty,
but only that the evidence show lost profits by reasonable
inference.
Id. at 70 (quoting 22 Am. Jur. 2d Damages § 177 (1965)). Although
that case permitted an inference of damages, that holding is not at
odds with determining damages by a "reasonable certainty" but reaf-
firms that each case should be considered on an individual basis.
Minter also reiterates that "while proof with mathematical certainty is
not required, the amount of damages cannot be left to conjecture,
guess, or speculation." Id. In this case, appellant has not been able to
prove damages to a reasonable degree of certainty and much has been
WHITFIELD v. JOHN BOURNE COMPANY 13
left to conjecture, guess and speculation. Accordingly, this Court
upholds summary judgment in favor of all appellees.
B.
Appellant Whitfield also contends that the district court erred when
it granted summary judgment to appellees on the claim for civil con-
spiracy on the basis of its ruling that Whitfield was required to dem-
onstrate that appellees conspired for the purpose of injuring Whitfield
in particular. Under South Carolina law:
Civil conspiracy . . . consists of three elements: (1) a combi-
nation of two or more persons, (2) for the purpose of injur-
ing the plaintiff, (3) which causes him special damage.
Lee v. Chesterfield Gen. Hosp., Inc., 344 S.E.2d 379, 382 (S.C. Ct.
App. 1986). Moreover, "[a] conspiracy is actionable only if overt acts
pursuant to the common design proximately cause damage to the
party bringing the action." Future Group, II v. Nationsbank, 478
S.E.2d 45, 51 (S.C. 1996).
Although appellant Whitfield contends that South Carolina law
does not require that a defendant have the specific intent to injure a
particular plaintiff in civil conspiracy, appellant has presented this
Court with no supporting South Carolina authority. Instead, appellant
cites antitrust cases, such as Blue Shield of Virginia v. McCready, 457
U.S. 465 (1982), for the proposition that a plaintiff does not have to
prove he is the "target" of a conspiracy. This Court does not find
appellant’s attempt to parallel antitrust law and South Carlina conspir-
acy law to be persuasive, particularly in light of the plain language of
various South Carolina cases holding that the purpose of a civil con-
spiracy must be "injuring the plaintiff thereby causing him special
damage." Future Group, 478 S.E.2d at 50 (emphasis added). More-
over, South Carolina case law reflects that there must be specific
intent to injure a particular plaintiff. Id. at 51 (finding that a civil con-
spiracy claim could not be maintained against defendant, in part,
because defendant did not even know of plaintiff’s existence in rela-
tion to its actions); Lee, 344 S.E.2d at 382-83 (examining cases in
which primary purpose or object of conspiracy was to injure particu-
14 WHITFIELD v. JOHN BOURNE COMPANY
lar plaintiff). Therefore, this Court upholds the grant of summary
judgment on this issue.
C.
Appellant Whitfield contends that the district court erred in grant-
ing summary judgment to referral appellees on the unfair trade prac-
tices claim on the basis of its ruling that Whitfield has failed to
demonstrate that the actions of the referral appellees were capable of
repetition. Under South Carolina law, an unfair trade practice must
have adverse affects on the public interest. See Daisy Outdoor Adver.
Co. v. Abbott, 473 S.E.2d 47, 49 (S.C. 1996). One method of showing
an adverse affect on the public interest is by proof that the unfair
practice has a potential for repetition. Id.; Haley Nursery Co. v. For-
rest, 381 S.E.2d 906, 908 (S.C. 1989). A party may argue that an
action is capable of repetition:
(1) by showing the same kind of actions occurred in the
past, thus making it likely they will continue to occur absent
deterrence, or (2) by showing the company’s procedures
create a potential for repetition of the unfair and deceptive
acts.
Daisy Outdoor, 473 S.E.2d at 51 (cites omitted); see Crary v. Dje-
belli, 496 S.E.2d 21, 23 (S.C. 1998). Those are not, however, the only
means for showing potential repetition and each case must be evalu-
ated on its own merits. Id.Although appellant argues that the alleged referrals and "kick-
backs" in this case occurred far more frequently than the two "similar
acts" in Daisy Outdoor, this Court does not find that appellant has
established that appellees’ alleged acts have an adverse affect on the
public interest. In Daisy Outdoor, the two incidents in which a bill-
board was blocked by a competitor’s billboard clearly showed a
potential for repetition and a likelihood that such actions may occur
in the future absent deterrence. 473 S.E.2d at 51. In this case, even
if this Court accepted that there were multiple instances of referrals
and kickbacks, appellant has not shown that such unfair practices
would continue absent deterrence or that any company’s procedures
created a potential for repetition of the alleged unfair and deceptive
WHITFIELD v. JOHN BOURNE COMPANY 15
acts. The referral agreement complained of by appellant has expired
and the rules governing DVA homes have been changed to preclude
such arrangements in the future. Although there may be other meth-
ods to show adverse affect on the public interest or other methods to
show a potential for repetition, appellant has not presented this Court
with any evidence that would lead this Court to find that appellant has
properly alleged an unfair trade practices claim against referral appel-
lees. Accordingly, this Court upholds the grant of summary judgment
on this issue.
D.
Appellant Whitfield contends that the district court erred in grant-
ing summary judgment to referral appellees on the negligence claim
on the ground that they owed no duty to Whitfield. Appellant argues
that he can maintain a negligence action against the referral appellees
because the referral appellees have a duty to him arising from their
referral contract with John Bourne Company. Specifically, appellant
contends that there was a genuine issue of fact that it was foreseeable
that the referral agreement would proximately cause harm to appellant
Whitfield.
The question of whether a defendant owes a duty, the breach of
which may constitute negligence, is, however, a question of law, not
of fact. See Araujo v. Southern Bell Tel. and Tel. Co., 351 S.E.2d 908,
910 (S.C. 1986). In this case, appellant Whitfield is not a party to any
contract between referral appellees and John Bourne Company and
there is no statute from which a duty could conceivably arise. More-
over, this Court cannot find that Whitfield is a third-party beneficiary
of any referral agreement. Although appellant does argue that this
Court could construe a duty based upon the forseeability of harm to
him under these circumstances, appellant has presented this Court
with no supporting authority. Rather, the cases cited by appellant in
support of extending a duty of care involved special relationships
between parties that are significantly different than the relationship
between the parties in this case.* In the absence of cited authority,
*In Jensen v. Anderson County Dep’t of Soc. Servs., 403 S.E.2d 615(S.C. 1991), the South Carolina court dealt with the narrow area of child
16 WHITFIELD v. JOHN BOURNE COMPANY
appellant has not persuaded this Court to take action that would
define a new duty under negligence law. Accordingly, this Court
upholds the grant of summary judgment on this issue.
E.
Finally, appellant alleges that the district court erred in granting
summary judgment on Whitfield’s cause of action seeking injunctive
relief under the Sherman Antitrust Act. Section 16 of the Clayton Act,
15 U.S.C. § 26, empowers a court of the United States to grant injunc-
tive relief against threatened loss or damage caused by a violation of
the "antitrust laws." See T.S. Alphin v. Henson, 552 F.2d 1033, 1034
n.1 (4th Cir. 1977). Antitrust law is defined by the Clayton Act to
include the Sherman Act. Id. at 1034. Although appellant argues that
the record discloses sufficient evidence to create a genuine issue of
material fact as to threatened injury, this Court does not find that
appellant has shown reoccurring or repetitive acts of anti-competitive
activity or the threat of such activity that would support an injunction.
Accordingly, this Court upholds the award of summary judgment to
all appellees on this issue.
III.
When reviewing a district court’s discovery rulings, this Court has
held that:
If the claim is of error in underlying factfinding which
infected the ultimate decision, review must proceed under
the clearly erroneous standard; if of error of law infecting
the ultimate decision, under the de novo review standard.
Only if the claim of error goes exclusively to the impropri-
welfare cases and an assumed public duty by officials involved in such
cases. Barker v. Sauls, 345 S.E.2d 244 (S.C. 1986), permitted an
employee to sue his employer’s insurance broker regarding coverage that
had a direct affect on the employee. Finally, appellant cites Terlinde v.
Neely, 271 S.E.2d 768 (S.C. 1980), which dealt with the extension of
warranties on a property.
WHITFIELD v. JOHN BOURNE COMPANY 17
ety of an ultimate exercise of available discretion is review
solely under the abuse of discretion standard.
See Watson v. Lowcountry Red Cross, 974 F.2d 482, 485 (4th Cir.
1992) (citing United Food & Commercial Workers v. Marval Poultry
Co., 876 F.2d 346, 351 (4th Cir. 1989)).
A.
Appellant Whitfield alleges that the district court erred in failing to
require appellee PM brokers to disclose the identity of purchasers of
DVA properties sold by them during the relevant period, particularly
given the district court’s ruling on damages. Appellant Whitfield
sought the names of the individuals who had purchased DVA proper-
ties through the appellee PM brokers so that appellant could deter-
mine whether those purchasers had received "insider information"
concerning the DVA properties that enabled them to submit a winning
bid. Appellant also argues that the information would enable him to
collect more information regarding any wrongdoing on behalf of
appellees and to more exactly determine and prove damages. Appel-
lees resisted appellant’s attempt to discover such information and
argued that appellant had presented no need for that information and
no proof of damages that would permit appellant to discover such
information or that would outweigh the privacy interests of the appel-
lees and their clients. The district court extensively examined the dis-
covery issues during several hearings. After weighing the prejudice
and privacy interests of the appellees against the possible prejudice to
the appellant, the district court determined that such information was
not discoverable because there would be prejudice to appellees in dis-
closing the names and because appellant had made no showing of
injury.
On appeal, appellant again argues that he requires the purchasers’
names to verify that appellees committed the unfair acts alleged in the
complaint. Appellant also argues that the information would be neces-
sary at trial to assist in showing damages. Appellees respond that
appellant has raised no issue or facts on appeal that would reveal an
abuse of discretion on the part of the district court.
This Court cannot find that the district court abused its discretion
or committed any error. Although appellant cites Palmetto State Med.
18 WHITFIELD v. JOHN BOURNE COMPANY
Ctr., Inc. v. Operation Lifeline, 117 F.3d 142 (4th Cir. 1997), in sup-
port of his argument that the district court’s ruling was extremely
prejudicial in light of the district court’s holding that appellant’s evi-
dence of damages was too speculative to support a jury verdict, that
case is inapposite. Although the Palmetto case discusses the necessity
of certain witnesses, the case does not address discovery or discovery
disputes. Appellant has presented this Court with no authority nor
with any argument that the district court abused its discretion or that
the district court erred in any way. Accordingly, the district’s court
decision not to permit discovery of the purchasers’ names is affirmed.
B.
Appellant Whitfield asserts that the district court erred in failing to
require appellees, David Wertan and Fred Rice, to produce their per-
sonal bank account records. Because a memorandum was circulated
reminding various appellee real estate agents that all referral fees
should be deposited in appropriate accounts, appellant sought to dis-
cover those personal bank account records to determine whether some
referral fees did not go through the appropriate accounts. The district
court held a hearing with the parties and addressed the matter. Appel-
lees argued that such discovery was unnecessary and intrusive based
upon other discovery that had been completed by the appellant. The
district court did not permit the discovery of the bank accounts
because it determined that there were less intrusive means to discover
the information.
On appeal, appellant contends that the discovery of bank account
records is a routine matter and necessary in this case. Appellant
alleges that he has been prejudiced by the district court’s decision
because his ability to prove injury and resulting damages has been
curtailed. Again, appellees respond that appellant has produced no
facts or issues on appeal that reveal or address any abuse of discretion
on the part of the district court.
After examining the hearing transcript, this Court cannot find that
the district court abused its discretion or erred in any manner. The
memorandum reminding appellees about appropriate deposit of fees
is not necessarily evidence that there had been inappropriate deposits.
Moreover, appellant deposed certain witnesses who stated that no fees
WHITFIELD v. JOHN BOURNE COMPANY 19
were channeled into inappropriate accounts, that appellant possessed
canceled checks revealing the appropriate deposit of the fees, and that
appellant could seek additional canceled checks for verification.
Appellant was permitted several avenues to determine whether any
fees were deposited into inappropriate accounts and has not shown
that he was unduly prejudiced. The district court was not in error and
did not abuse its discretion when it defined the bounds of discovery
on this issue. Therefore, the district court’s ruling prohibiting discov-
ery of the bank account records is affirmed.
C.
In appellant Whitfield’s statement of issues presented for review,
appellant alleges that the district court erred in granting the amended
motion of the DVA to quash appellant’s subpoena for records of the
DVA Office of Inspector General’s investigation of property manage-
ment brokers. This issue is not, however, reflected in the table of con-
tents and is not discussed in the text of appellant’s brief, appellees’
brief or appellant’s reply brief. Although this Court notes that the dis-
trict court addressed this issue during the February 25, 1998 hearing
with the parties, this Court will not address the merits of this issue
because it has not been argued by the parties.
AFFIRMED