BCD v. BMW Manufacturing Company, LLC

Filing 920100108

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1279

BCD LLC; ROSEN MANAGEMENT LLC,

CAMPUS

I

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

BCD LLC; ROSEN MANAGEMENT LLC,

CAMPUS

I

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.

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:

September 22, 2009

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.

Affirmed by unpublished opinion. Judge Davis wrote the opinion, in which Judge Motz and Judge King joined.

ARGUED: James Robinson Gilreath, GILREATH LAW FIRM, Greenville, South Carolina, for Appellants. Henry Donald Sellers, HAYNSWORTH, SINKLER & BOYD, PA, Greenville, South Carolina, for Appellee. ON BRIEF: Charles E. Carpenter, Jr., Carmen V. Ganjehsani, CARPENTER APPEALS & TRIAL SUPPORT, LLC, Columbia, South Carolina; William M. Hogan, GILREATH LAW FIRM, Greenville, South Carolina; Charles W. Whetstone, Jr., Cheryl F. Perkins, WHETSTONE MYERS PERKINS & YOUNG, LLC, Columbia, South Carolina; V. Laniel Chapman, Bruce A. Byrholdt, CHAPMAN BYRHOLDT & YON, Anderson, South Carolina, for Appellants. J. W. Matthews, III, Christopher B. Major, HAYNSWORTH, SINKLER & BOYD, PA, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

DAVIS, District Judge: Clifford Rosen, a developer serving as the principal behind the entities of BCD LLC, Rosen Campus I LLC, CR-MERC LLC, and Rosen-WT Management LLC, appeals from the grant of summary

judgment against him on his claims of tortious interference with contract, intentional interference with prospective contractual relations, and civil conspiracy. The district court disposed of

the case on alternative grounds, holding that Rosen's claims were barred under the Noerr-Pennington doctrine and that summary judgment was appropriate because there were no genuine issues of material fact. It is well-established under the doctrine of constitutional avoidance that a court should avoid deciding a constitutional question when it can dispose of a case on another basis.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Finding that Rosen's claims can be

decided on non-constitutional grounds of state contractual law, it is thus not necessary to reach the question of whether

Rosen's claims were barred under the Noerr-Pennington doctrine. For the reasons that follow, we affirm the grant of summary judgment. I. This action arose out of a dispute related to the early developmental stages of a project 3 that culminated in the

construction

of

Clemson

University's

("Clemson")

Carroll

A.

Campbell, Jr. Graduate Engineering Center ("GEC").

In 2001,

Appellee BMW ("BMW") and Clemson, a public university located in South which Carolina, they explored possible educational initiatives the idea on of

could

collaborate.

Clemson

raised

developing a wind tunnel that would cater to the racing industry and made a formal presentation of the idea to BMW executives. BMW indicated but that it was an not interested plan in of funding a wind with

tunnel,

proposed

alternative

partnering

Clemson to establish the GEC as part of Clemson's International Center for Automotive Research ("CU-ICAR"). Clemson similarly approached Rosen about the possibility of developing a motorsports facility incorporating a wind tunnel, and Rosen expressed interest in the idea. For the purposes of

negotiating an agreement, Rosen thus formed CR-MERC LLC ("CRMERC"). The Clemson University Foundation ("CUF"), the

fundraising arm of Clemson, formed a subsidiary called AMREC LLC ("AMREC") for the same purpose. On (through April 4, 2002, signed Rosen a (through CR-MERC) and (the Clemson "2002

AMREC)

nine-page

"agreement"

Agreement") to lay the foundation for the proposed development of the facility. The 2002 Agreement indicated that the laws of

the state of South Carolina would govern all issues arising out of the agreement. Under its terms, the facility and surrounding 4

campus would consist of a combination of parcels, some donated by Rosen and the remainder donated by AMREC. The 2002 Agreement, however, called for the parties to

reach further agreement on twelve subject areas, identified as "Exhibits," by May 1, 2002. Pursuant to Paragraph 10, the 2002

Agreement thus remained terminable at will by either party if the parties could not reach an agreement on all of the subject areas. Specifically, the provision stated that if the parties

failed "to agree to any of the Exhibits," then "at any time after May 1, 2002, either party may, upon ten (10) days notice to the other party cancel this Agreement, whereupon the parties shall be relieved of all obligations to each other." (emphasis in original). 1 The subject areas covered by the Exhibits encompassed J.A. 800

material aspects of the deal, including how the land would be divided and parties areas. USED": developed. to reach At an a drafting session, on all of however, the the

failed

agreement

subject

In particular, the parties marked two Exhibits as "NOT "Exhibit F," the "Reciprocal Easements and Operating

Agreement" and "Exhibit H," the "Master Association Agreement."

Citations to "J.A." refer to the contents of the joint appendix filed by the parties in this proceeding.

1

5

The parties also did not sign "Exhibit G," which would have covered the allocation of parcels of land. Rosen's attorneys thereafter commenced the drafting of a revised "Amended and Restated Master Agreement" to incorporate the non-used Exhibits F and H within of ("CCR"). a combined agreement

entitled

the and

"Declaration Easements"

Covenants, The

Conditions, however,

Restrictions,

parties,

never executed either of these documents. Meanwhile, Clemson during the summer and fall and of 2002, BMW and in

continued

their

negotiations

preparations

furtherance of the plan to construct the GEC.

BMW identified

the GEC as one of the projects that could be supported pursuant to the newly-enacted Bond Act, under which the State of South Carolina set aside funds for qualifying infrastructure projects that promoted economic development within the state. Code Ann. § 11-41-10 et. seq. (2002). South Carolina Department of See S.C.

On July 29, 2002, the ("SCDOC") formally

Commerce

proposed incentives for BMW under the Bond Act, including $25 million earmarked for the development of the GEC. After the

formal announcement, BMW and Clemson drafted a "Memorandum of Expectations" with respect to the GEC. Rosen began to urge Clemson and BMW to consider utilizing property that he owned as the potential site for the GEC. BMW,

however, emphasized the need to distinguish the state-funded GEC 6

from

the

privately-funded

wind

tunnel

in

which

Rosen

was

involved, and Clemson declined to commit itself to using Rosen's property. wind Rosen, in turn, interpreted BMW's criticism of the project as a reflection of the company's

tunnel

dissatisfaction with its lack of control over the development of the wind tunnel. According to Rosen, this sentiment prompted

BMW to launch a series of efforts designed to kill his project. In particular, he claims that BMW exerted pressure upon private, governmental, and state-supported entities, including Clemson, to cease negotiations with him. In January 2003, Rosen the sent a letter of to the Clemson wind that

expressed project. Rosen was

concerns

about

progress

tunnel

Clemson interpreted this letter as an indication that no longer committed to the project, but Rosen

subsequently sent another letter reiterating his determination to construct the wind tunnel. of the Specifically 2002 referencing the

terminable-at-will

clause

Agreement,

Clemson's

President responded with a letter on March 12, 2003 notifying Rosen that the 2002 Agreement constituted a 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." In April 2003, Rosen made a counterproposal to 7

Clemson. however.

Clemson

found

Rosen's

counterproposal

unacceptable,

At this time, Clemson determined that it needed to

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." Rosen subsequently continued to seek amendments

to the old deal structure, but Clemson's attorneys drafted a letter on May 12, 2003 stating that, "[a]s there is currently no agreement, nothing will be amended." J.A. 1791.

Thereafter, Clemson and Rosen renewed negotiations under an entirely different deal structure and executed the Real Estate Purchase and Sale Agreement (the "2003 Agreement") on October 6, 2003. The 2003 Agreement provided for the sale of land for the

GEC and addressed all material subject areas, including those areas that the 2002 Agreement had failed to address.

Furthermore, the 2003 Agreement provided that the 2002 Agreement was "terminated for all purposes without any liabilities to any of the parties[.]" J.A. 690.

Rosen now characterizes his execution of the 2003 Agreement as a mere attempt to mitigate his damages and argues that he lost valuable property rights under the new deal. this action in federal district court. summary judgment, which the district He thus filed

BMW filed a motion for court granted. Rosen

subsequently filed a timely appeal. 8

In this appeal, Rosen contests the district court's grant of summary judgment, arguing that BMW was the direct cause of the unraveling of his project and that he is therefore entitled to recover damages for lost profits, development fees, and

management fees. the parties of the never

We disagree. reached 2002

In light of the fact that: (1) on all of the 2003 essential Agreement

agreement Agreement;

terms

alleged

(2)

the

expressly terminated the 2002 Agreement for all purposes; and (3) BMW at all times acted pursuant to its legitimate business interests, we find that summary judgment was appropriate.

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. Perini Corp. v. Perini Constr., Inc., 915 Summary judgment is appropriate

F.2d 121, 123 (4th Cir. 1990).

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.

R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Hill v. Lockheed Martin Logistics A

Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc).

genuine issue of material fact is raised only if a reasonable 9

jury could return a verdict for the plaintiff on each element necessary to its case. Banca Cremi, S.A. v. Alex. Brown & Sons, As the nonmoving

Inc., 132 F.3d 1017, 1027 (4th Cir. 1997).

party below, Rosen had the ultimate burden of demonstrating a genuine issue of material fact for trial. Catrett, 477 U.S. 317, 322-23 (1986). Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a See Celotex Corp. v.

scintilla of evidence. Liberty Rather, Mut. the Ins. Co.,

See Anderson, 477 U.S. at 252; Stone v. 105 must F.3d be 188, such 191 that (4th the Cir. 1997).

evidence

fact-finder

reasonably could find for the nonmoving party. 477 U.S. at 252.

See Anderson,

Guided by this procedural standard of review,

we analyze the merits of Rosen's appeal.

III. On appeal, Rosen contends that the district court erred in granting summary judgment against him in light of the evidence presented. We disagree. At the outset, it is important to

underscore the precise nature of Rosen's business relationship with Clemson. In particular, the parties were in the formative

stages of negotiation and had never solidified the essential and 10

material terms of the document known as the "2002 Agreement." The 2003 Agreement, moreover, terminated the 2002 Agreement for all purposes. On these facts, Rosen's remedies against Clemson

are substantially limited. A. Rosen first claims that BMW tortiously interfered with his contract with Clemson. Under South Carolina law, the elements

of a cause of action for tortious interference with contract are: (1) the existence of the contract; (2) the other party's knowledge of the contract; (3) the other party's intentional procurement of a breach of the contract; (4) the absence of justification; and (5) resulting damage. S.E.2d 559, 561 (S.C. Ct. App. 1992). Webb v. Elrod, 418

A tortious interference

claim thus "presupposes the existence of a valid, enforceable contract." Jackson v. Bi-Lo Stores, Inc., 437 S.E.2d 168, 171 The district court found that Rosen did

(S.C. Ct. App. 1993).

not show a genuine issue of material fact as to this cause of action. Viewing the evidence in the light most favorable to

Rosen, we similarly find that Rosen has not created a genuine issue. Taking all of Rosen's allegations as true, there is not a valid, enforceable contract to support Rosen's tortious

interference claim.

In order to have a valid and enforceable

contract under South Carolina law, there must be a meeting of 11

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). Player v. Chandler, 382

There can be no contract so

long as, in the contemplation of the parties thereto, something remains to be done to establish contract relations. Edwards, 220 S.E.2d 231, 234 (S.C. 1975). Here, the record before us evinces no meeting of the minds between Rosen and Clemson with respect to all of the essential and material terms. Although the 2002 Agreement is, in essence, Hughes v.

an "agreement to agree," such an agreement does not amount to a contract under South Carolina law. Austin Co., 272 F. Supp. 2d 566, Trident Constr. Co., Inc. v. 575 (D.S.C. 2003) (citing

Blanton Enters., Inc. v. Burger King Corp., 680 F. Supp. 753, 770 n.20 (D.S.C. 1988)). The parties merely agreed to enter

into negotiations to reach an agreement, but subsequently failed to reach an actual agreement on essential terms pertaining to land allocations, divisions of parcels, and restrictive

covenants for the property.

See Fici v. Koon, 642 S.E.2d 602,

604-05 (S.C. 2007) (noting that, in a real estate contract, a description sufficient to show with reasonable certainty the

location of the land and its boundaries is necessary); Player, 382 S.E.2d at 893-94 (finding a description of the extent and boundary of the property to be an essential term of a contract pertaining to real estate). Therefore, inasmuch as substantial 12

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, Rosen's tortious interference

claim still would not pass muster and withstand summary judgment because there was no genuine issue of material fact concerning

At oral argument, the parties disputed whether the terminable-at-will provision of the 2002 Agreement also rendered the agreement illusory. Ordinarily, a terminable-at-will provision would render contractual promises illusory and the contract would thus be unenforceable for lack of consideration. Glascock v. Comm'r of Internal Revenue, 104 F.2d 475, 476 (4th Cir. 1939); see also RESTATEMENT (SECOND) OF CONTRACTS § 77 cmt. a (1981) (stating that "[w]ords of promise which by their terms make performance entirely optional with the `promisor' do not constitute a promise" and, instead, constitute an illusory promise). A notice provision, however, limits the right to cancel and constitutes sufficient consideration to prevent a contract from being illusory. See Am. Gen. Life & Accident Ins. Co. v. Ward, 429 F.3d 83, 91 n.5 (4th Cir. 2005). Although the 2002 Agreement contained a ten-day notice provision, this provision failed to create a justified expectation of performance because there was no meeting of the minds as to the essential elements of the underlying agreement, resulting in a failure to execute an enforceable contract in the first instance.

2

13

the

element

of

"absence

of

justification."

Absence

of

justification means conduct that is carried out for an improper purpose, such as malice or spite, or through improper means, such as violence or intimidation. Waldrep Bros. Beauty Supply,

Inc. v. Wynn Beauty Supply Co., 992 F.2d 59, 62 (4th Cir. 1993) (applying South Carolina law). when acting or in the A party is justified, however, of its legitimate S.E.2d business at 561.

advancement rights.

interests

legal

Webb,

418

Furthermore, as long as some legitimate purpose or right exists, the improper purpose must predominate in order to create

liability.

Crandall Corp. v. Navistar Int'l Transp. Corp., 395

S.E.2d 179, 180 (S.C. 1990). Rosen has not offered any evidence that BMW utilized any "improper means," such as violence, or See threats, to bribery, fraud, in at his 63

misrepresentation, relations with

deceit,

duress, Waldrep would

interfere 992 F.2d

Clemson. such

Bros.,

(suggesting means").

that

actions

constitute

"improper

Conceding that BMW did not utilize "improper means,"

Rosen nonetheless maintains that BMW's conduct was carried out for an "improper purpose." In particular, he argues that BMW's

only interest was to decouple Rosen from his property so that BMW could assume full control over the project. interest, however, does not exhibit the This alleged malice or

requisite

spite to constitute an improper purpose. 14

Moreover, even if we assume an improper purpose, BMW still could not be held liable because the improper purpose would not predominate over BMW's legitimate purpose. acted in pursuit of its legitimate At all times, BMW in founding an

interests

educational partnership with Clemson.

As the sponsor of the GEC

under the Bond Act, BMW was an indispensable participant in the establishment of the graduate institution. Contrary to Rosen's

assertions, BMW thus remained motivated by a legitimate desire to find a suitable location for the GEC and retained a

legitimate interest in Clemson's land acquisition negotiations that pertained to the GEC. In meeting sum, of given that on Rosen all and the Clemson essential never terms reached and a

the

minds

BMW's

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 in The district court thus properly favor of BMW on the claim of

tortious interference with contract. B. Rosen's second cause of action asserted that, even if the 2002 Agreement failed to create a valid and enforceable

contract, it nonetheless represented an expectancy with which BMW interfered. The execution of the 2003 Agreement, however, 15

renders

this

argument

meritless.

Therefore,

the

district

court's grant of summary judgment was proper. To assert a claim of tortious interference with prospective contractual defendant: relations, (1) the plaintiff interfered must with prove the that the

intentionally

plaintiff's

potential contractual relations; (2) for an improper purpose or by improper methods; S.E.2d (3) at causing 180. where injury A the to the for plaintiff. prospective is able to

Crandall,

395

claim

interference

cannot

stand

plaintiff

consummate a contract with another party.

See Egrets Pointe

Townhouses Prop. Owners Ass'n, Inc. v. Fairfield Cmtys., Inc., 870 F. Supp. 110, 116 (D.S.C. 1994). Under South Carolina law,

it is irrelevant that a plaintiff could have realized a better deal "but for" the actions of the defendant because the term "potential" contractual relations does not mean "full"

contractual relations. for thus interference lie only with where

See id.

At the core, a cause of action contractual party relations [was] . will . .

prospective "the

aggrieved

unsuccessful in acquiring an expected contract due to a third party's intentional and wrongful actions." Id.

In light of this standard, Rosen cannot assert a viable claim for interference with prospective contractual relations

because Rosen's execution of the 2003 Agreement, which expressly terminated the 2002 Agreement for all purposes, precluded any 16

claim

he

otherwise there

would a

have

had. contract

See in

id.

(holding

that

"[b]ecause

was

valid

existence

[between

plaintiff and another party] at the inception of this action, . . . the existence of that contract precludes any recovery on a claim for interference with prospective contractual

relations.").

Similarly, Rosen cannot recover on a theory that

the 2003 Agreement was less profitable to him than it would have been without BMW's interference. As previously explained, See id. moreover, Rosen has not

demonstrated that BMW acted for an improper purpose or utilized improper methods, which is a necessary element of an intentional interference with prospective contractual relations claim.

Crandall, 395 S.E.2d at 180.

Consequently, viewing the evidence

in the light most favorable to Rosen and taking his allegations as true, there is no genuine issue of material fact and the district court properly granted summary judgment in favor of BMW on the claim of intentional interference with prospective

contractual relations. C. Rosen's 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 combination claim of two contains or more Under South Carolina law, a civil the following (2) elements: for the (1) a of

persons, 17

purpose

injuring the plaintiff, (3) which causes the plaintiff special damage. Lee v. Chesterfield Gen. Hosp. Inc., 344 S.E.2d 379, The difference between

382 (S.C. 1986) (citations omitted).

civil and criminal conspiracy is that "in criminal conspiracy the agreement is the gravamen of the offense, whereas in civil actions, the gravamen of the tort is the damage resulting to plaintiff from an overt act done pursuant to a common design." Vaught v. Waites, 387 S.E.2d 91, 95 (S.C. Ct. App. 1989)

(citation omitted).

To recover on a civil conspiracy claim, the

plaintiff must therefore demonstrate that the "object of the conspiracy was to ruin or damage the business of another."

Waldrep Bros., 992 F.2d at 63. In this case, there is no genuine issue of material fact because the record is devoid of any evidence suggesting a

conspiracy.

Indeed, no facts have been presented that could

lead a court to conclude that BMW's objective was to injure Rosen's meetings, business. telephone Although calls, and Rosen claims that there between were BMW,

emails

exchanged

AMREC, and AMREC's attorneys plotting ways to leverage him to give up his property and contract rights, such claims are

insufficient.

Rosen has not provided a scintilla of evidence

that would suggest that BMW possessed the requisite motive to injure. Rather, the record indicates that BMW was motivated by

its desire to establish the GEC, which in and of itself does not 18

imply an explicit desire to damage Rosen's business. harm that BMW may have intended to cause Rosen

The only was the

incidental harm to a competitor that is necessarily part of all legitimate business competition. That increased benefits for one entity may come at the

expense of a competing entity is merely a fact of life in a market economy. Id. Consequently, although a party cannot

interfere with a contract because of malice or spite, it is altogether legitimate for BMW to engage in business competition with Rosen's entities. See RESTATEMENT (SECOND)
OF

TORTS

§

768

(1979) ("One who intentionally causes a third person . . . not to continue an existing contract terminable at will does not interfere improperly with the other's relation if . . . his purpose is at least in part to advance his interest in competing with the other."). 3 Sanctioning BMW for obtaining a contract The

with Clemson would thus unjustly punish BMW and Clemson.

evidence in this case demonstrated that Clemson terminated its Granted, if Rosen and Clemson had executed a contract that was not terminable at will, there would be "established interests that are not subject to interference on the basis of competition alone." RESTATEMENT, supra, § 768 cmt. a. However, where the contract at issue is terminable at will, competition is not an improper basis for interference. See RESTATEMENT, supra, § 768 cmt. i ("If the third person is free to terminate his contractual relation with the plaintiff when he chooses, . . . any interference with it that induces its termination is primarily an interference with the future relation between the parties, and the plaintiff has no legal assurance of them.").
3

19

2002 Agreement with Rosen because of its dissatisfaction with the progress and development of the wind tunnel project and its reasonable belief that the GEC did not require a wind tunnel. Punishing BMW under these facts would not only undermine BMW's legitimate business negotiations, but also effectively deprive Clemson of its entitlement to seek out those ventures most

aligned with its institutional goals. Furthermore, fatal to Rosen's claim for civil conspiracy against special Carolina BMW is the in the fact that he has not adequately alleged South the

damages law,

connection damages

with

the

claim. resulting

Under from

allegedly

conspiracy must not overlap with or be subsumed by the damages allegedly resulting from the other claims. See Vaught, 387

S.E.2d at 95.

Rosen therefore must allege and prove damages

that occurred as a result of the alleged conspiracy itself, in addition to any damages alleged as a result of any other claims. See id. profits identical action. Here, the damages sought for conspiracy, namely loss of and to We loss the of development sought the and in management other court's fees, causes grant are of of

damages

Rosen's

therefore

affirm

district

summary judgment in favor of BMW with respect to the claim of civil conspiracy.

20

IV. Viewing the record as a whole and in the light most

favorable to the nonmoving party, we conclude that there is no genuine issue as to any material fact and that BMW is entitled to a judgment as a matter of law. Accordingly, we affirm the

district court's order granting summary judgment. AFFIRMED

21