The Muhler Company, Inc. v. Ply Gem Holdings, Inc.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cv-00862-SB Copies to all parties and the district court/agency. [999752719].. [15-1843]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1843
THE MUHLER COMPANY, INC.,
Plaintiff - Appellant,
v.
PLY
GEM
HOLDINGS,
INC.;
AWC
HOLDING
MANUFACTURERS, INC.; PLY GEM INDUSTRIES,
HOLDING CORPORATION; MWM HOLDINGS, INC.,
COMPANY;
MW
INC.; ALENCO
Defendants – Appellees,
and
PLY GEM
WINDOWS,
WINDOW
GROUP;
MW
WINDOWS
&
DOORS;
GREAT
LAKES
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:11-cv-00862-SB)
Submitted:
January 26, 2016
Decided:
February 10, 2016
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew K. Epting, Jr., ANDREW K. EPTING, JR., LLC, Charleston,
South Carolina; M. Dawes Cooke, Jr., Bradley B. Banias, BARNWELL
WHALEY PATTERSON & HELMS, LLC, Charleston, South Carolina, for
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Appellant.
Steve M. Pharr, Stacey Bailey Pharr, Matthew M.
Pagett, PHARR LAW, PLLC, Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The Muhler Company, Inc. (“Muhler”), appeals the district
court’s orders granting summary judgment in favor of Defendants—
Ply Gem Holdings, Inc.; Ply Gem Industries, Inc.; AWC Holding
Company; Alenco Holding Corporation; MWM Holdings, Inc.; and MW
Manufacturers, Inc. (collectively, “Ply Gem”)—on Muhler’s claims
under the Lanham Act, 15 U.S.C. §§ 1116, 1125(a) (2012), under
the South Carolina Unfair Trade Practices Act (“SCUTPA”), S.C.
Code Ann. § 39-5-20(a), and for common law unfair competition. *
For the reasons that follow, we affirm.
We review the district court’s grant of summary judgment de
novo.
Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 248
(4th Cir. 2015).
“Summary judgment is appropriate when there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
760
F.3d
352,
omitted).
370
(4th
Cir.
2014)
Bostic v. Schaefer,
(internal
quotation
marks
In making this determination, we “view[] all facts
and draw[] all reasonable inferences in the light most favorable
to
the
nonmoving
party.”
Building
Graphics,
Corp., 708 F.3d 573, 578 (4th Cir. 2013).
party
must
rely
on
more
than
*
conclusory
Inc.
v.
Lennar
“[T]he nonmoving
allegations,
mere
Because the parties agree that Muhler’s common law unfair
competition claim rises and falls with its Lanham Act claim, we
have not conducted a separate analysis of this issue.
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speculation, the building of one inference upon another, or the
mere existence of a scintilla of evidence.”
Dash v. Mayweather,
731 F.3d 303, 311 (4th Cir. 2013).
The
Lanham
Act
creates
a
private
right
of
action
for
victims of “false or misleading” representations or descriptions
in commercial promotion, labeling, or advertisement.
§ 1125(a) (2012).
15 U.S.C.
Similarly, SCUTPA prohibits “[u]nfair methods
of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.”
(1985 & Supp. 2015).
plaintiff
must
S.C. Code Ann. § 39-5-20(a)
To prove a claim under either statute, the
establish
that
his
injuries
were
proximately
caused by the defendant’s unfair trade practice.
See Lexmark
Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
1389-90
(2014); Charleston Lumber Co. v. Miller Housing Corp.,
458 S.E.2d 431, 438 (S.C. Ct. App. 1995).
In
the
Lanham
Act
context,
proximate
cause
ordinarily
requires a plaintiff to demonstrate “economic or reputational
injury
flowing
directly
defendant’s advertising.”
from
the
deception
wrought
by
the
Lexmark, 134 S. Ct. at 1391.
In
Lexmark, the Supreme Court held that Static Control Components
had
adequately
practices
alleged
proximately
that
Lexmark
caused
Static
International’s
Control’s
lost
trade
sales,
despite the absence of direct competition between the parties,
because of the roughly “1:1 relationship” between the sales of
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Lexmark’s product and lost sales of Static Control’s component
part.
134 S. Ct. at 1394.
Under this “unique” set of facts,
there was no “discontinuity between the injury to the direct
victim and the injury to the indirect victim,” such that the
indirect victim’s injury was “surely attributable to the former
(and thus also to the defendant’s conduct),” rather than to “any
number of other reasons.”
Id. (internal quotation marks and
alterations omitted).
These facts distinguish Lexmark from the
typical
by
case
brought
an
indirect
victim,
in
which
the
calculation of damages proximately attributable to the alleged
misconduct is complex and uncertain.
Steel
Supply
Corp.,
547
U.S.
451,
See, e.g., Anza v. Ideal
459-60
(2006);
Holmes
v.
Securities Investor Protection Corp., 503 U.S. 258, 269 (1992).
Under state law, “[p]roximate cause is the efficient or
direct cause of an injury.”
Vinson v. Hartley, 477 S.E.2d 715,
721 (S.C. Ct. App. 1996).
It “requires proof of both causation
in fact and legal cause.”
Hurd v. Williamsburg Cty., 579 S.E.2d
136, 144 (S.C. Ct. App. 2003).
Causation in fact requires a
showing that the plaintiff’s “injury would not have occurred
‘but for’ the defendant’s” misconduct, while “[l]egal cause is
proved by establishing foreseeability.”
Mental
Health,
“Foreseeability
502
is
S.E.2d
determined
by
78,
Bishop v. S.C. Dep’t of
88-89
looking
to
(S.C.
the
probable consequences of the act complained of.”
5
1998).
natural
and
Vinson, 477
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S.E.2d at 721.
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Thus, misconduct “is a proximate cause of injury
if, in a natural and continuous sequence of events, it produces
the injury, and without it, the injury would not have occurred.”
Hurd, 579 S.E.2d at 144.
Proximate cause generally is an issue of fact for the jury,
to be decided as a matter of law only in “rare or exceptional
cases”
where
inference.”
79
(S.C.
“the
evidence
is
susceptible
to
only
one
Cody P. v. Bank of Am., N.A., 720 S.E.2d 473, 478-
Ct.
App.
2011)
(internal
quotation
marks
omitted).
Additionally, the proximate cause of an injury need not be its
sole cause, as “[t]he defendant’s conduct can be a proximate
cause if it was at least one of the direct, concurring causes of
the injury.”
Hurd, 579 S.E.2d at 145.
However, “where the
cause of plaintiff’s injury may be as reasonably attributed to
an act for which defendant is not liable as to one for which he
is
liable,
establishing
plaintiff
has
that
injuries
his
defendants’ [misconduct].”
failed
to
were
carry
the
the
proximate
burden
of
result
of
Messier v. Adicks, 161 S.E.2d 845,
846 (S.C. 1968).
Even viewing the evidence in the light most favorable to
Muhler, we conclude evidence of proximate cause is lacking.
The
undisputed evidence established that retail pricing of windows
produced
by
Ply
Gem,
a
window
manufacturer,
results
from
multiple factors beyond the cost of production, many of which
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are controlled by Muhler and its competitor window dealers.
The
affidavit
attributing
his
price,
did
not
had
the
decision
establish
proffered
to
by
purchase
that
a
local
Ply
Muhler
Gem
would
contractor,
products
have
to
obtained
the
sale
contractor not selected a Ply Gem product.
While Muhler also
provided
sales
affidavits
from
members
of
its
staff
who
testified that they lost specific sales to Ply Gem products,
these witness’ testimony is based on unattributed hearsay or
speculation.
See
Fed.
R.
Civ.
P.
56(c)(1),
(2),
(4).
Additionally, even if these affidavits could be used as evidence
that Muhler lost the identified sales due to the retail price
offered for the Ply Gem windows, its evidence did not establish
that
the
retail
prices
were
attributable
to
Ply
Gem’s
mislabeling, as opposed to pricing decisions made by the dealer
or other intervening factors.
The sworn declaration of Muhler’s president regarding the
manufacturing and certification process—like the affidavits of
several
building
inspection
officials—did
not
provide
a
nonspeculative basis to conclude that any reduced manufacturing
costs
were
reflected
in
retail
prices
or
that
mislabeling
resulted in any appreciable increase in Ply Gem’s market share.
Viewed in the aggregate, these facts are readily distinguishable
from those of Lexmark, in that the evidence presented fails to
establish that Muhler’s alleged losses are attributable to any
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discernable degree to Ply Gem’s alleged mislabeling, rather than
decisions of unrelated actors.
Additionally, given the numerous
factors involved in window pricing and sales decisions, Muhler
has
not
demonstrated
that
its
losses
were
the
natural
and
probable consequence of Ply Gem’s purported mislabeling of its
windows.
Thus,
the
district
court
properly
concluded
that
Muhler failed to provide evidence sufficient to establish the
proximate cause necessary to sustain its Lanham Act or SCUTPA
claims.
Similarly, we find no error in the court’s conclusion that
the
evidence
ascertainable
failed,
as
damages
a
matter
necessary
to
of
law,
support
to
a
establish
SCUTPA
claim.
“Recoverable damages” under SCUTPA “include compensation for all
injury to plaintiff’s property or business which is the natural
and probable consequence of defendant’s wrong.”
Collins Holding
Corp. v. Defibaugh, 646 S.E.2d 147, 149 (S.C. Ct. App. 2007)
(internal quotation marks omitted).
While the plaintiff need
not establish “proof, with mathematical certainty, of the amount
of
loss
permit
or
damage,”
the
reasonable
he
factfinder
certainty
must
“to
and
present
determine
accuracy.
sufficient
the
amount
Neither
evidence
thereof
the
to
with
existence,
causation[,] nor amount of damages can be left to conjecture,
guess[,] or speculation.”
(S.C.
1991)
(internal
Baughman v. AT&T, 410 S.E.2d 537, 546
quotation
8
marks
omitted).
Despite
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multiple requests to do so during deposition, Muhler’s president
did not articulate a clearly reasoned, nonspeculative basis for
his conclusion that Muhler lost 50% of its sales to Ply Gem.
Muhler provided no evidence from which a jury could reasonably
ascertain
alleged
conclude
failed
the
amount
mislabeling,
the
of
as
damages
opposed
court
provide
to
district
evidence
attributable
to
other
properly
to
causes.
determined
sufficient
to
Ply
Gem’s
Thus,
that
we
Muhler
support
a
nonspeculative damages calculation.
Accordingly, we affirm the district court’s judgment.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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