UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1279
BCD LLC; ROSEN CAMPUS I LLC; CR MERC LLC; ROSEN WT
MANAGEMENT LLC,
Plaintiffs - Appellants,
v.
BMW MANUFACTURING COMPANY LLC, formerly known as BMW
Manufacturing Corp.,
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 CAMPUS I LLC; CR MERC LLC; ROSEN WT
MANAGEMENT LLC,
Plaintiffs - Appellants,
v.
BMW MANUFACTURING COMPANY LLC, formerly known as BMW
Manufacturing Corp.,
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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 that culminated in the
3
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 Carolina, explored possible educational initiatives on
which they could collaborate. Clemson raised the idea of
developing a wind tunnel that would cater to the racing industry
and made a formal presentation of the idea to BMW executives.
BMW indicated that it was not interested in funding a wind
tunnel, but proposed an alternative plan of partnering with
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 (“CR-
MERC”). The Clemson University Foundation (“CUF”), the
fundraising arm of Clemson, formed a subsidiary called AMREC LLC
(“AMREC”) for the same purpose.
On April 4, 2002, Rosen (through CR-MERC) and Clemson
(through AMREC) signed a nine-page “agreement” (the “2002
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.” J.A. 800
(emphasis in original). 1
The subject areas covered by the Exhibits encompassed
material aspects of the deal, including how the land would be
divided and developed. At a drafting session, however, the
parties failed to reach an agreement on all of the subject
areas. In particular, the parties marked two Exhibits as “NOT
USED”: “Exhibit F,” the “Reciprocal Easements and Operating
Agreement” and “Exhibit H,” the “Master Association Agreement.”
1
Citations to “J.A.” refer to the contents of the joint
appendix filed by the parties in this proceeding.
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 a combined agreement
entitled the “Declaration of Covenants, Conditions,
Restrictions, and Easements” (“CCR”). The parties, however,
never executed either of these documents.
Meanwhile, during the summer and fall of 2002, BMW and
Clemson continued their negotiations and preparations in
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. See S.C.
Code Ann. § 11-41-10 et. seq. (2002). On July 29, 2002, the
South Carolina Department of Commerce (“SCDOC”) formally
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. Rosen, in turn, interpreted BMW’s criticism of the
wind tunnel project as a reflection of the company’s
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 sent a letter to Clemson that
expressed concerns about the progress of the wind tunnel
project. Clemson interpreted this letter as an indication that
Rosen was no longer committed to the project, but Rosen
subsequently sent another letter reiterating his determination
to construct the wind tunnel. Specifically referencing the
terminable-at-will clause of the 2002 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. Clemson found Rosen’s counterproposal unacceptable,
however. 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. He thus filed
this action in federal district court. BMW filed a motion for
summary judgment, which the district 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. We disagree. In light of the fact that: (1)
the parties never reached agreement on all of the essential
terms of the alleged 2002 Agreement; (2) the 2003 Agreement
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
F.2d 121, 123 (4th Cir. 1990). Summary judgment is appropriate
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
Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc). A
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,
Inc., 132 F.3d 1017, 1027 (4th Cir. 1997). As the nonmoving
party below, Rosen had the ultimate burden of demonstrating a
genuine issue of material fact for trial. See Celotex Corp. v.
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
scintilla of evidence. See Anderson, 477 U.S. at 252; Stone v.
Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).
Rather, the evidence must be such that the fact-finder
reasonably could find for the nonmoving party. See Anderson,
477 U.S. at 252. 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. Webb v. Elrod, 418
S.E.2d 559, 561 (S.C. Ct. App. 1992). 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
(S.C. Ct. App. 1993). The district court found that Rosen did
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. Player v. Chandler, 382
S.E.2d 891, 893-94 (S.C. 1989). There can be no contract so
long as, in the contemplation of the parties thereto, something
remains to be done to establish contract relations. Hughes v.
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,
an “agreement to agree,” such an agreement does not amount to a
contract under South Carolina law. Trident Constr. Co., Inc. v.
Austin Co., 272 F. Supp. 2d 566, 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
2
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.
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). A party is justified, however,
when acting in the advancement of its legitimate business
interests or legal rights. Webb, 418 S.E.2d at 561.
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, threats, bribery, fraud,
misrepresentation, deceit, or duress, to interfere in his
relations with Clemson. See Waldrep Bros., 992 F.2d at 63
(suggesting that such actions would constitute “improper
means”). 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. This alleged
interest, however, does not exhibit the requisite malice or
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. At all times, BMW
acted in pursuit of its legitimate interests in founding an
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 sum, given that Rosen and Clemson never reached a
meeting of the minds on all the essential terms and 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.” The district court thus properly
granted summary judgment in 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 relations, the plaintiff must prove that the
defendant: (1) intentionally interfered with the plaintiff’s
potential contractual relations; (2) for an improper purpose or
by improper methods; (3) causing injury to the plaintiff.
Crandall, 395 S.E.2d at 180. A claim for prospective
interference cannot stand where the plaintiff is able to
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. See id. At the core, a cause of action
for interference with prospective contractual relations will
thus lie only where “the aggrieved party [was] . . .
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 would have had. See id. (holding that
“[b]ecause there was a valid contract in 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. See id.
As previously explained, 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. Under South Carolina law, a civil
conspiracy claim contains the following elements: (1) a
combination of two or more persons, (2) for the purpose of
17
injuring the plaintiff, (3) which causes the plaintiff special
damage. Lee v. Chesterfield Gen. Hosp. Inc., 344 S.E.2d 379,
382 (S.C. 1986) (citations omitted). The difference between
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 business. Although Rosen claims that there were
meetings, telephone calls, and emails exchanged between BMW,
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. The only
harm that BMW may have intended to cause Rosen 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
with Clemson would thus unjustly punish BMW and Clemson. The
evidence in this case demonstrated that Clemson terminated its
3
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.”).
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 BMW is the fact that he has not adequately alleged
special damages in connection with the claim. Under South
Carolina law, the damages allegedly resulting from the
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. Here, the damages sought for conspiracy, namely loss of
profits and loss of development and management fees, are
identical to the damages sought in Rosen’s other causes of
action. We therefore affirm the district court’s grant of
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
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