Donald Simmons v. Danhauer & Associates LLC

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:08-cv-03819-JMC. Copies to all parties and the district court/agency. [998831911].. [11-1572]

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Date Filed: 04/13/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1572

DONALD A. SIMMONS; LESLIE SIMMONS,
Plaintiffs - Appellants,
v.
DANHAUER & ASSOCIATES LLC,
Defendant,
and
PROXIBID, INCORPORATED,
Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
J. Michelle Childs, District
Judge. (8:08-cv-03819-JMC)

Submitted:

March 30, 2012

Decided:

April 13, 2012

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Denny P. Major, Henry D. Sellers, HAYNSWORTH SINKLER BOYD, P.A.,
Greenville, South Carolina, for Appellants.
W. Howard Boyd,
Jr., Thomas E. Vanderbloemen, Adam C. Bach, GALLIVAN, WHITE &
BOYD, P.A., Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donald and Leslie Simmons appeal the district court’s
grant of summary judgment against them in this diversity action.
The case stems from an online auction hosted by Proxibid, Inc.,
(“Proxibid”), in which Lee Danhauer, of Danhauer & Associates
LLC

(“Danhauer”),

Although

the

served

Simmonses

as

sued

both
both

auctioneer
Proxibid

and

and

bidder.

Danhauer

on

numerous grounds, on appeal they challenge the district court’s
grant of summary judgment to Proxibid as to only the following
claims:

violation

of

South

Carolina’s

Unfair

Trade

Practices

Acts (“UTPA claim”), S.C. Code Ann. §§ 39-5-10 to 39-5-360 (1985
& Supp. 2011) (“SCUTPA”); aiding and abetting Danhauer’s breach
of

fiduciary

interference

duty
with

a

(“fiduciary
contract

duty

claim”);

(“tortious

and

interference

tortious
claim”).

We affirm.
We review de novo a district court’s order granting
summary judgment.
(4th Cir. 2010).

See Robinson v. Clipse, 602 F.3d 605, 607
Summary judgment shall be granted when “there

is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

“At the summary judgment stage, facts must be viewed in

the light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts.”

Scott v. Harris, 550 U.S.

372, 380 (2007) (internal quotation marks omitted).
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I. UTPA claim.
To establish a claim under SCUTPA, 1 the Simmonses were
required to demonstrate that Proxibid engaged in an unfair or
deceptive act or practice in the conduct of trade or commerce
and that such conduct affects the public interest.

Hollman v.

Woolfson,

challenged

683

S.E.2d

495,

499

(S.C.

2009).

The

conduct must have been the proximate cause of a loss of “money
or property, real or personal,” thus entitling the Simmonses to
recover actual damages.

S.C. Code Ann. § 39-5-140.

Upon a

careful review of the record, we find that the numerous theories
and allegations the Simmonses have put forward in support of
their UTPA claim fail to establish a material issue of fact. 2
First, to the extent that they rely on allegations of
an arrangement or collusion between Proxibid and Danhauer to
drive up auction prices, the Simmonses have failed to produce
evidence aside from the coincidence of Proxibid and Danhauer’s
joint benefit from higher sale prices.

Although Proxibid may

1

To the extent that the Simmonses’ UTPA claim was grounded
in North Carolina law, they have not pressed the issue on
appeal.
2

For the first time on appeal, the Simmonses allege that
Proxibid assured them that it would do its best to enable them
to secure the items on which they were bidding at the lowest
price possible. This new allegation is not properly before us
and need not be considered.
See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993).

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have

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failed

fraudulent

Date Filed: 04/13/2012

to

proactively

actions

or

Page: 5 of 8

prevent

realize

that

Danhauer’s

its

policies

allegedly

created

the

potential for such abuse, negligence or incompetence alone is
insufficient

to

establish

an

unfair

or

deceptive

sufficient to support a claim under SCUTPA.
Orkin

Estimating

Co.,

761

F.2d

189,

practice

See Clarkson v.

190-91

(4th

Cir.

1985);

Wright v. Craft, 640 S.E.2d 486, 500 (S.C. Ct. App. 2006).
Furthermore, the Simmonses have not established that
Proxibid’s challenged conduct was a proximate cause of their
alleged damages.

See Collins Holding Corp. v. Defibaugh, 646

S.E.2d 147, 150 (S.C. Ct. App. 2007); Baggerly v. CSX Transp.,
Inc., 635 S.E.2d 97, 101 (S.C. 2006).
Nor

have

the

Simmonses

produced

competent

evidence

that Proxibid’s challenged conduct impacts the public interest.
There

is

actions
engage

no

showing

similar
in

such

to

that

Proxibid

those

has

complained

conduct.

See

Daisy

previously

of

or

will

Outdoor

engaged

in

continue

to

Advert.

Co.

v.

Abbott, 473 S.E.2d 47, 52 (S.C. 1996); Schnellmann v. Roettger,
627 S.E.2d 742, 746 (S.C. Ct. App. 2006).
an

adverse

public

impact,

or

speculation

Mere speculation of
that

the

alleged

wrongdoer still engages in the same business, is insufficient to
establish

the

potential

for

repetition.

See

Omni

Outdoor

Advert. v. Columbia Outdoor Advert., 974 F.2d 502, 507 (4th Cir.

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1992); Jefferies v. Phillips, 451 S.E.2d 21, 23 (S.C. Ct. App.
1994).

II. Fiduciary duty claim.
To establish a claim for aiding and abetting a breach
of fiduciary duty under South Carolina law, the Simmonses were
required to

produce

fiduciary duty

evidence

owed

to

the

indicating
them,

(1)

(2)

the

breach

Proxibid’s

of

a

knowing

participation in the breach, and (3) resulting damages.

Vortex

Sports & Entm’t, Inc. v. Ware, 662 S.E.2d 444, 448 (S.C. Ct.
App.

2008).

defendant’s

Because
knowing

“the

gravamen

participation

in

of
the

the

claim

fiduciary’s

is

the

breach,”

actual knowledge of duty and subsequent breach is required.

Id.

(internal quotation marks omitted); see also Gordon v. Busbee,
__ S.E.2d __, 2012 WL 89641, at *5 (S.C. Ct. App. 2012).
Assuming

for

the

sake

of

argument

that

Danhauer

breached a fiduciary duty owed to the Simmonses, the Simmonses
have

not

established

Proxibid’s

knowledge

of

that

duty

and

breach by using the presumption that persons are charged with
knowledge of the law.

Presumed knowledge of the law, with no

accompanying evidence of actual knowledge, is insufficient under
South Carolina law to establish actual notice or knowledge.

See

Labruce v. North Charleston, 234 S.E.2d 866, 867 (S.C. 1977);
Strother v. Lexington Cnty. Recreation Comm’n, 479 S.E.2d 822,
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826 (S.C. Ct. App. 1996).

Accordingly, as the Simmonses point

to

Proxibid’s

no

other

evidence

of

knowledge

of

Danhauer’s

alleged duty or breach, summary disposition of their fiduciary
duty claim was proper.

III. Tortious interference claim.
Under South Carolina law, a viable claim for tortious
interference with contractual relations requires proof of (1)
the

existence

of

a

contract,

(2)

the

alleged

wrongdoer’s

knowledge of the contract, (3) an intentional and unjustified
interference
damages.
S.E.2d

resulting

Eldeco,

726,

731

Inc.

(S.C.

in
v.

a

breach

of

Charleston

2007).

the

contract,

County

Sch.

Generally,

where

and

(4)

Dist.,

642

there

is

no

evidence suggesting that the actions of the alleged tortfeasor
were motivated by anything other than a pursuit or fulfillment
of his own contractual rights with a third party, there can be
no

finding

relations.

of

intentional

interference

with

contractual

See Southern Contracting v. Brown Constr. Co., 450

S.E.2d 602, 604-06 (S.C. Ct. App. 1994).
Here, assuming a valid contract between the Simmonses
and Danhauer, we find that the Simmonses have failed to produce
evidence of Proxibid’s intent to interfere with that contract
sufficient to survive summary judgment.

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Without more, we can

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find

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no

error

in

Date Filed: 04/13/2012

the

district

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court’s

judgment

in

favor

of

Proxibid.
In light of our above conclusions, it is unnecessary
for us to address the district court’s determination regarding
Proxibid’s
U.S.C.

immunity

§ 230

under

(2006).

the

We

Communications

affirm

the

Decency

district

Act,

court’s

granting summary judgment in favor of Proxibid.

47

order

We dispense

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

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