UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PROJECT CONTROL SERVICES,
INCORPORATED,
Plaintiff-Appellant,
v. No. 01-1352
WESTINGHOUSE SAVANNAH RIVER
COMPANY, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CA-98-3738-1-22)
Argued: February 27, 2002
Decided: May 21, 2002
Before WIDENER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Karl Frederick Dix, Jr., SMITH, CURRIE & HAN-
COCK, L.L.P., Atlanta, Georgia, for Appellant. Michael Anthony
Scardato, MCNAIR LAW FIRM, P.A., Charleston, South Carolina,
for Appellee. ON BRIEF: Robert L. Widener, MCNAIR LAW
FIRM, P.A., Charleston, South Carolina, for Appellee.
2 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The present diversity action stems from a dispute between two
companies that had a contractor/subcontractor relationship, which
relationship was based upon numerous subcontracts between them.
Westinghouse Savannah River Company (WSRC) was the contractor,
and Project Control Services, Inc. (PCS) was the subcontractor. Under
the subcontracts at issue, PCS performed employee scheduling and
cost-estimating services for WSRC in connection with WSRC’s man-
agement and operation of the United States Department of Energy’s
Savannah River Site (SRS).
The subcontracts at issue provided that PCS would be paid for its
services on an interim basis using provisional rates, but that the par-
ties would negotiate final rates after an audit, performed by WSRC,
of PCS’s accounting books and records. Depending upon the results
of the negotiations, the final amount due PCS under the subcontracts
at issue would be adjusted up or down. The final rates depended in
large part on numerous cost elements allegedly incurred by PCS in
performing the subcontracts at issue, for example, the cost to PCS to
rent office space and the cost to PCS to employ office personnel.
The primary basis of the dispute between WSRC and PCS was the
level of cooperation that each party exhibited when the time came for
WSRC to audit PCS’s accounting books and records. Each party
accuses the other of acting unreasonably during the audit process,
which process was eventually completed by the Defense Contract
Audit Agency (DCAA) due to the bad blood that had developed
between the parties. Relevant to the present appeal, the DCAA audit
did not resolve certain disputes between the parties regarding the
appropriateness of the amounts of certain cost elements claimed by
PCS. Moreover, PCS was not happy when WSRC refused to continue
its contractor/subcontractor relationship with PCS at the expiration of
the subcontracts at issue and hired some employees of PCS.
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 3
PCS ultimately brought the present diversity action against WSRC
alleging numerous claims, including breach of subcontracts and inten-
tional interference with economic relations. The district court granted
summary judgment in favor of WSRC with respect to some of PCS’s
claims, granted WSRC’s motion for judgment as a matter of law with
respect to a portion of PCS’s breach of subcontracts claim,1 and
allowed the remaining claims to go to the jury. Following a three-
week trial, the jury returned a verdict fully in favor of WSRC.
Furthermore, in order to resolve still disputed cost elements that
needed to be resolved before the parties could agree upon the amounts
that WSRC still owed PCS under the subcontracts at issue, the parties
agreed to allow the jury to answer special interrogatories (the Special
Interrogatories) regarding these disputed cost elements in what
amounted to an accounting exercise. Based upon the jury’s answers
to the Special Interrogatories, the parties agreed that the final amount
due PCS under the subcontracts at issue was $252,840.29. Because
the jury had been instructed, with the consent of the parties, that it
could find that WSRC still owed PCS money under the subcontracts
at issue without finding that WSRC had breached the subcontracts at
issue and the jury found that WSRC had not breached the subcon-
tracts at issue, the district court did not make the $252,840.29 amount
part of the final judgment.
On appeal, PCS alleges numerous errors by the district court,
including, not making the $252,840.29 amount part of the final judg-
ment and not awarding PCS pre and postjudgment interest on that
amount. For reasons that follow, we affirm the final judgment of the
district court in toto.
I.
In 1989, WSRC and the United States Department of Energy
entered into a contract whereby WSRC agreed to manage and operate
SRS for the Department of Energy. WSRC and PCS in turn entered
1
In this regard, the district court granted WSRC’s motion for judgment
as a matter of law to the extent that PCS contended that WSRC breached
an alleged contractual duty under a particular subcontract to provide PCS
with WSRC personnel for training.
4 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
into several subcontracts whereby PCS agreed to perform employee
scheduling and cost-estimating services for WSRC in connection with
WSRC’s management and operation of SRS.
As previously explained, the subcontracts at issue in the present
appeal provided that the final amounts that WSRC owed PCS would
be determined through negotiations between the parties after a final
audit by WSRC of PCS’s accounting books and records. Also as pre-
viously explained, the DCAA ultimately completed the final audit of
PCS’s accounting books and records because of the bad blood that
had developed between the parties. The parties never engaged in final
negotiations to resolve the disputed cost elements. Moreover, as
stated previously, PCS was not happy when WSRC decided not to
continue its contractor/subcontractor relationship with PCS at the
expiration of the subcontracts at issue and hired some employees of
PCS.
The rancorous relationship between PCS and WSRC ultimately led
PCS to file the present diversity action against WSRC in the United
States District Court for the Southern District of Georgia. Before any
substantive proceedings occurred, the action was transferred to the
United States District Court for the District of South Carolina. PCS’s
complaint alleged the following claims under South Carolina law: (1)
breach of third-party beneficiary contract2; (2) libel; (3) slander; (4)
violations of the South Carolina Unfair Trade Practices Act
(SCUTPA), S.C. Code Ann. §§ 39-5-10 to 39-5-160 (Law. Co-op.
1985 & Supp. 2001); (5) breach of contract accompanied by a fraudu-
lent act; (6) breach of the implied duty of good faith and fair dealing;
(7) intentional interference with economic relations; (8) intentional
interference with prospective contractual relationships; and (9) breach
of subcontracts. WSRC filed a single counterclaim alleging breach of
subcontracts.
Following the conclusion of discovery, the district court granted
WSRC’s motion for summary judgment, Fed. R. Civ. P. 56, with
respect to PCS’s claims alleging breach of third-party beneficiary
2
This claim involved what the parties refer to as "the Prime Contract,"
which is the contract between WSRC and the United States Department
of Energy regarding WSRC’s management and operation of SRS.
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 5
contract, libel, slander, violations of the SCUTPA, and breach of con-
tract accompanied by a fraudulent act. The district court denied
WSRC’s motion for summary judgment with respect to PCS’s
remaining claims. The district court then scheduled the remaining
claims for a jury trial.
At the close of PCS’s evidence at trial, the district court granted
WSRC’s motion for judgment as a matter of law to the extent that
PCS contended that WSRC breached an alleged contractual duty to
provide PCS with WSRC personnel for training. The jury found
against PCS with respect to its remaining claims alleging breach of
the implied duty of good faith and fair dealing, intentional interfer-
ence with economic relations, intentional interference with prospec-
tive contractual relationships, and breach of subcontracts.3
Furthermore, as previously stated, the parties agreed to allow the
jury to answer the Special Interrogatories regarding the disputed cost
elements. Based upon the jury’s answers to the Special Interrogato-
ries, the parties agreed that the final amount due PCS under the sub-
contracts at issue was $252,840.29. This amount was not made part
of the final judgment because the jury had been instructed, with the
consent of the parties, that: (1) its determinations of the disputed cost
elements on the Special Interrogatories does not suggest that it should
find for or against either party on any of the other claims that were
the subject of the verdict forms;4 and (2) the jury returned a verdict
finding that WSRC had not breached the subcontracts at issue.
3
On its own motion, the district court dismissed WSRC’s counterclaim
because WSRC had abandoned the claim at trial.
4
In this regard, the district court specifically instructed the jury as fol-
lows:
I want you to understand that your determination of these
amounts on the Special Interrogatories does not suggest that you
should find for or against either party on any of the other claims,
that [are] the subject of the verdict forms. In other words, we
have two things you are doing here today. One is you are resolv-
ing those unresolved audit issues and you are resolving that irre-
spective of fault on either side. Then once you have resolved that
then you go to the question of whether or not [PCS] has proved
6 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
The district court subsequently entered its final judgment dismiss-
ing all claims against WSRC with prejudice. The judgment also pro-
vided that WSRC "shall recover of the plaintiff its costs of action."
(J.A. 2167). The district court left the determination of WSRC’s
"costs of action" for a later time, and to this court’s knowledge has
not made such determination.5 Id.
Following the district court’s entry of final judgment in favor of
WSRC, PCS moved for a new trial with respect to all claims that were
before the jury (Rule 59(a) Motion). Fed. R. Civ. P. 59(a). PCS
argued that a new trial should be conducted because the weight of the
evidence and the jury’s answers to the Special Interrogatories demon-
strated liability on the part of WSRC. PCS also rested its Rule 59(a)
Motion on allegations that the district court committed various evi-
dentiary errors. The district court denied the motion in toto.
In another post-trial motion, PCS moved for modification of the
final judgment to reflect: (1) that it prevailed on WSRC’s counter-
claim; (2) an award of costs in favor of PCS rather than WSRC; and
(3) an award of $252,840.29 plus pre and postjudgment interest on
that amount. Fed. R. Civ. P. 59(e). The district court denied this
motion (the Rule 59(e) Motion) in toto as well.
PCS noted a timely appeal. On appeal, PCS challenges the district
court’s grant of summary judgment in favor of WSRC with respect
to its claims alleging breach of third-party beneficiary contract, viola-
tions of the South Carolina Unfair Trade Practices Act, and breach of
contract accompanied by a fraudulent act. PCS also challenges the
the claims that it has brought in the case for breach of contract,
breach of implied duty of good faith and fair dealing, and the tor-
tious interference claims. But just because you are determining
the amounts that are due and owing under the subcontracts does
not imply that you should find for or against either party on those
other claims. Those are separate issues.
(J.A. 2074-75).
5
The parties agree that WSRC has paid PCS $252,840.29 less $30,000
that WSRC is withholding pending the district court’s determination of
its petition for approval of costs.
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 7
district court’s grant of judgment as a matter of law with respect to
the portion of its breach of subcontracts claim pertaining to WSRC’s
alleged duty to provide PCS with WSRC personnel for training.
Moreover, PCS challenges the district court’s denial of its Rule 59(a)
Motion and Rule 59(e) Motion.
II.
We first address PCS’s contention that the district court erred by
granting summary judgment in favor of WSRC with respect to its
claim alleging violations by WSRC of the SCUTPA. PCS’s conten-
tion is without merit.
Summary judgment is appropriate when "the pleadings, deposi-
tions, answers to interrogatories, 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 moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). "We review a grant of summary
judgment de novo, applying the same standard as the district court."
Baber v. Hospital Corp. of Am., 977 F.2d 872, 874 (4th Cir. 1992).
In so doing, we view all facts and reasonable inferences therefrom in
the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
The crux of PCS’s claim under the SCUTPA is that WSRC alleg-
edly violated the SCUTPA by hiring PCS employees away from PCS,
using audit information for improper purposes, and blacklisting PCS
from future subcontracting opportunities with WSRC. To maintain a
viable claim under the SCUTPA, a plaintiff must prove by a prepon-
derance of the evidence "(1) that the defendant engaged in an unlaw-
ful trade practice, (2) that the plaintiff suffered actual, ascertainable
damages as a result of the defendant’s use of the unlawful trade prac-
tice, and (3) that the unlawful trade practice engaged in by the defen-
dant had an adverse impact on the public interest." Havird Oil Co. v.
Marathon Oil Co., 149 F.3d 283, 291 (4th Cir. 1998). South Carolina
courts, in addressing the third element of a SCUTPA claim, have
examined whether the conduct complained of is capable of repetition.
Noack Enters, Inc. v. Country Corner Interiors, 351 S.E.2d 347, 350-
51 (S.C. Ct. App. 1986).
8 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
We agree with the district court that PCS’s SCUTPA claim fails for
lack of evidence of an adverse impact on any public interest. As the
district court aptly stated with regard to this element:
Plaintiff hangs its hat on the "potential for repetition." It
submits that WSRC has numerous subcontractors on site
and continues to illegally perform financial audits on small
and disadvantaged subcontractors. No evidence supports
this claim. This case presents a situation in which two cor-
porations found themselves involved in a business dispute
over a contract audit. There is no evidence in the record that
WSRC regularly has such disputes with other parties or that
what transpired in this case has any real potential for repeti-
tion. At best this is a standard contract dispute that falls well
outside the ambit of what constitutes an actionable SCUTPA
violation. Accordingly, summary judgment is proper as to
Count V.
(J.A. 607). Based upon this reasoning of the district court, we affirm
the district court’s grant of summary judgment in favor of WSRC
with respect to PCS’s SCUTPA claim.
III.
We next address PCS’s contention that the district court erred in
excluding evidence that WSRC’s auditors who were involved in the
initial audit of PCS’s accounting books and records were not licensed
certified public accountants. PCS sought to introduce this evidence to
show that WSRC did not attempt to perform audits of PCS’s account-
ing books and records in accordance with statements "in its audit
reports that they were prepared in accordance with Generally
Accepted Government Auditing Standards (‘GAGAS’)." (PCS’s Br.
at 14). In this regard, PCS relied upon the portion of GAGAS provid-
ing that "public accountants engaged to conduct audits should be . . .
licensed certified public accountants . . . ." (J.A. 1507).
WSRC had filed a pretrial motion in limine seeking to exclude all
evidence from trial that GAGAS required auditors to be licensed cer-
tified public accountants. The district court granted WSRC’s motion
in limine on the basis that the subcontracts at issue did not require
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 9
WSRC’s auditors to be licensed certified public accountants. The dis-
trict court also rejected PCS’s reading of the auditor licensing provi-
sion in the GAGAS. Essentially, the district court’s reasoning in this
regard went as follows. WSRC’s auditors were not "public accoun-
tants engaged" to audit PCS. Id. Rather, they were WSRC employees
exercising WSRC’s contractual rights to inspect PCS’s accounting
books and records. Therefore, the licensing provision in GAGAS
upon which PCS relies was not applicable to WSRC’s auditors.
We review a district court’s evidentiary rulings for abuse of discre-
tion. Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,
71 F.3d 119, 126 (4th Cir. 1995). We can find no fault in the reason-
ing of the district court. Therefore, we hold the district court did not
abuse its discretion in excluding evidence that the auditors from
WSRC involved in the initial audits of PCS’s accounting books and
records were not licensed certified public accountants.
IV.
We next address the assignment of error that PCS pressed most
vigorously on appeal, namely, that the district court abused its discre-
tion by denying its Rule 59(e) Motion to modify the judgment in
order to reflect: (1) an award of $252,840.29 in its favor plus pre and
postjudgment interest on that amount; and (2) an award of costs in its
favor rather than WSRC. Fed. R. Civ. P. 59(e). PCS argues that such
a modification is in order because, in its complaint: (1) it alleged that
WSRC was using its failure to properly perform and complete the
audit of PCS’s accounting books and records as an excuse for not
paying it substantial sums of money owed under the subcontracts at
issue; (2) it generally requested an award of monetary damages; and
(3) it specifically requested an award of prejudgment interest for
amounts still owing under the subcontracts. According to PCS, it is
inconceivable that the jury could have answered the Special Interrog-
atories in its favor but found against it on every one of its substantive
claims. Thus, as PCS’s argument goes, the final judgment, as it now
stands, reflects an inconsistency in the jury’s verdict; an inconsistency
that can only be corrected by vacating the final judgment and remand-
ing the case to the district court with instructions that the district court
grant its Rule 59(e) Motion.
10 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
Although Rule 59(e) does not itself provide a standard under which
a district court may grant a motion to alter or amend a judgment, we
have previously recognized that there are three grounds for modifying
an earlier judgment: "(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at trial;
or (3) to correct a clear error of law or prevent manifest injustice."
EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997).
PCS’s Rule 59(e) Motion appears to rely upon this last ground.
Reviewing the district court’s denial of PCS’s Rule 59(e) Motion
for abuse of discretion, id., we find this assignment of error to be
without merit. First, the invited error doctrine prevents PCS from
relying upon any alleged inconsistency in the jury’s verdict in support
of its challenge to the district court’s denial of its Rule 59(e) Motion.
Under the "invited error" doctrine, a party is prevented from inducing
the court to take an erroneous step and later seeking redress for the
error. United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)
("invited error doctrine recognizes that a court cannot be asked by
counsel to take a step in a case and later be convicted of error,
because it has complied with such request") (internal quotation marks
omitted). Here, PCS invited the jury’s allegedly inconsistent verdict.
As the district court reported in its Memorandum Opinion in which
it denied PCS’s Rule 59(a) Motion and its Rule 59(e) Motion, "both
parties agreed that even if there was no breach [of the subcontracts
at issue] by WSRC, outstanding negotiations were required . . . to
finalize any amounts due to or from" PCS under the subcontracts at
issue. (J.A. 2192). Therefore, with input from and approval of the par-
ties, the district court instructed the jury as follows:
[Y]our determination of these amounts on the Special Inter-
rogatories does not suggest that you should find for or
against either party on any of the other claims, that [are] the
subject of the verdict forms. In other words, we have two
things you are doing here today. One is you are resolving
those unresolved audit issues and you are resolving that irre-
spective of fault on either side. Then once you have resolved
that then you go to the question of whether or not [PCS] has
proved the claims that it has brought in the case for breach
of contract, breach of implied duty of good faith and fair
dealing, and the tortious interference claims. But just
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 11
because you are determining the amounts that are due and
owing under the subcontracts does not imply that you
should find for or against either party on those other claims.
Those are separate issues.
(J.A. 2074-75). These jury instructions clearly created the potential
for the verdict situation that resulted in this case.6 Thus, assuming
arguendo that the jury’s verdict is inconsistent, such inconsistency
was invited by PCS and cannot now be remedied on appeal. Second,
as the district court correctly explained, the verdict is not inherently
inconsistent. The jury apparently believed that although WSRC owed
PCS money under the subcontracts at issue, that fact did not constitute
breach of those subcontracts under the circumstances. This finding is
plausible given that the subcontracts at issue provided that outstand-
ing negotiations were required to finalize any amounts owed PCS.
PCS’s assignment of error in this regard strikes us as PCS wanting
to have its cake and eat it to. The district court accommodated PCS’s
desire to have the jury resolve the disputed cost elements by answer-
ing the Special Interrogatories. In order to effectuate this process,
PCS also agreed to the jury instruction which made clear that the
jury’s answers to the Special Interrogatories had no bearing upon its
deliberations regarding PCS’s substantive claims. PCS now com-
plains that the district court erred by not incorporating the
$252,840.29 amount as well as pre and postjudgment interest on that
amount as part of the final judgment (not to mention its request that
we award it rather than WSRC costs). We think not; PCS having
made its bed, it must now lie in it. In sum, we affirm the district
court’s denial of PCS’s Rule 59(e).7
6
Notably, even before this court, PCS expressly states that it "does not
attack the jury charges themselves." (PCS’s Reply Br. at 11). In fact,
PCS admits that the jury instruction quoted above "is not inaccurate."
(PCS’s Reply Br. at 9).
7
We have carefully reviewed PCS’s remaining assignments of error
and find them to be without merit.
12 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
V.
In conclusion, we affirm the district court’s final judgment in toto.
AFFIRMED