Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 14-1488
RFT MANAGEMENT COMPANY LLC,

Plaintiff - Appellant,
v.
JOHN D. POWELL; PROFESSIONAL APPRAISAL SERVICE INCORPORATED;
TINSLEY & ADAMS LLP; WELBORN D. ADAMS,
Defendants Appellees,
and
LAKE GREENWOOD DEVELOPERS LLC; WILLIAM E. GILBERT; STEPHEN
GILBERT; JAN BRADSHAW; COURTNEY R. FURMAN; FURMAN PROPERTIES
LLC,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Mary G. Lewis, District Judge.
(8:10-cv-02503-MGL)
Submitted:
January 29, 2015
Decided:
April 9, 2015
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished

per curiam opinion.
Harry A. Swagart, III, HARRY A. SWAGART, III, P.C., Columbia,

South Carolina, for Appellant.
William A. Coates, Carroll H.
Roe, Jr., ROE CASSIDY COATES & PRICE, PA, Greenville, South
Carolina; Matthew H. Henrickson, HENRICKSON LAW FIRM, LLC,
Greenville, South Carolina; Amy M. Snyder, CLARKSON, WALSH,
TERRELL & COULTER, P.A., Greenville, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
RFT
Management
Company,
LLC,
(RFT),
through
its
manager, David Roatch, purchased two lots from a real estate

developer in a residential subdivision, hoping that the lots
value
would
development.
appreciate
upon
completion
of
the
subdivisions
Due to the economic downturn, development stalled,
and the lots value plummeted.
With the real estate developer
no longer in business, RFT filed suit against the appraiser,

John Powell, and the appraisal company, Professional Appraisal
Service, Incorporated (collectively with Powell, PAS), as well
as the lawyer, Welborn Adams, and his law firm, Tinsley & Adams
LLP (collectively with Adams, T&A), that had facilitated the
purchase of the lots.
all
claims
that
A jury found in favor of Defendants on
remained
following
claims during the pretrial stage.
dismissal
of
number
of
This appeal followed.
On appeal, RFT asserts that the district court erred

by (1) dismissing its South Carolina Unfair Trade Practices Act
(UTPA), 1 South Carolina Uniform Securities Act (SCUSA), 2 and
civil
conspiracy
claims
against
T&A
based
on
res
judicata;
(2) dismissing its claims under the Interstate Land Sales Full
S.C. Code Ann. 39510 to 560 (1985 & Supp. 2014).
S.C. Code Ann. 351101 to 703 (1987 & Supp. 2014).
Disclosure Act (ILSFDA) 3 and 10(b) of the Securities Exchange

Act of 1934 4 and Securities and Exchange Commission Rule 10b-5
implementing it 5 (together, federal securities claim) against
T&A and PAS; (3) denying its motion for leave to amend its
complaint
in
order
to
cure
deficiencies
identified
by
the
district court; (4) denying its Fed. R. Civ. P. 50(b) motion for
judgment as a matter of law on its UTPA claim against PAS; and
(5)
denying
professional
its
motion
negligence
for
claims
new
trial
against
on
PAS.
its
UTPA
Reviewing
and
these
decisions in turn, we affirm the first four, affirm in part and

reverse in part the last, and remand to the district court.
I.
Claims dismissed on the basis of res judicata
We review de novo a Fed. R. Civ. P. 12(b)(6) dismissal

based on principles of res judicata.
Brooks v. Arthur, 626 F.3d
194, 200 (4th Cir. 2010).
Federal courts are bound by 28 U.S.C.
the
1738
(2012)
to
apply
law
of
the
rendering
state
to
determine the extent to which a state court judgment should have

preclusive effect in a federal action.
Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005); Brooks, 626
F.3d at 200.
In South Carolina, the doctrine of res judicata
15 U.S.C. 1701-1720 (2012).
15 U.S.C. 78(j) (2012).
17 C.F.R. 240.10b-5 (2014)
will bar a claim when (1) the identities of the parties are the
same as in the prior litigation, (2) the subject matter is the
same as in the prior litigation, and (3) there was a prior
adjudication of the issue by a court of competent jurisdiction.
Catawba Indian Nation v. State, 756 S.E.2d 900, 907 (S.C. 2014).
Moreover, res judicata bars plaintiffs from pursuing [a claim
in]
later
suit
where
the
claim
could
have
been
litigated in a prior suit, and the claim[] arise[s] out of the

same transaction or occurrence that was the subject of [the]
Id. at 906. 6
prior action between [the same] parties.

Having
reviewed
the
record,
we
conclude
that
RFTs
civil conspiracy, UTPA, and SCUSA claims meet the requirements

under
South
Accordingly,
Carolina
we
affirm
law
the
for
res
district
judicata
courts
preclusion. 7
order
dismissing
these claims.
6
We note that the law of South Carolina distinguishes

between preclusion based on res judicata and preclusion based on
collateral estoppel. See Lowe v. Clayton, 212 S.E.2d 582 (S.C.
1975); S.C. Pub. Interest Found. v. Greenville Cnty., 737 S.E.2d
502, 507 (S.C. Ct. App. 2013). To the extent that RFTs appeal
relies on principles of collateral estoppel, we find its
arguments inapposite.
7
The district courts order dismissing the claims relied on

the judgment of a state trial court that was subsequently
affirmed on other grounds by the South Carolina Supreme Court.
To the extent RFT asserts error in the district courts reliance
on a state court judgment later affirmed on other grounds, such
error was harmless.
See United States v. Olano, 507 U.S. 725,
734 (1993).
II.
Claims dismissed for failure to state a claim
We review de novo a district courts dismissal for

failure
to
state
claim
under
Rule
12(b)(6).
Summers
Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014).
v.
To
survive a motion to dismiss, a complaint must present factual

allegations that state a claim to relief that is plausible on
its
face.
(2009)).
Id.
(quoting
Ashcroft
v.
Iqbal,
556
U.S.
662
In applying that standard, we take all facts pleaded
as true, and draw all reasonable inferences in RFTs favor.
Id.
Relevant to this appeal, Fed. R. Civ. P. 8 requires that a

complaint give the defendant fair notice of what the claim is.
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation
marks and ellipsis omitted).
RFT
does
not
challenge
the
district
courts
determination that aider and abettor liability is not available

for private actions under ILSFDA or the federal securities law
at issue.
Accordingly, we do not review that determination.
We
conclude that RFTs complaint alleged only that Appellees were

liable
for
aiding
and
abetting
violations
of
ILSFDA
and
the
federal securities law and did not provide fair notice of any
claim
of
primary
liability
against
Appellees.
We
therefore
affirm the district courts order dismissing RFTs ILSFDA and

federal securities claims.
III. Denial of motion for leave to amend complaint

We review for abuse of discretion the district courts
denial of a motion to amend the pleadings under Fed. R. Civ. P.
15(a).
Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir.
2014).
Although leave to amend a complaint should be freely
give[n]
when
justice
so
requires,
Fed.
R.
Civ.
P.
15(a)(2), after the deadlines provided by a scheduling order

have passed, the good cause standard [of Fed. R. Civ. P. 16]
must
be
Nourison
2008).
satisfied
Rug
Co.
Rule
to
v.
justify
leave
Parvizian,
16(b)s
good
535
cause
to
amend
the
pleadings
295,
298
(4th
F.3d
standard
diligence of the party seeking amendment.
emphasizes
RFT
did
not
demonstrate
the
diligence
the
OConnell v. Hyatt
Hotels of P.R., 357 F.3d 152, 155 (1st Cir. 2004).

that
Cir.
We conclude
required
by
Rule
16(b), and, therefore, the district court acted well within its
discretion in denying RFT leave to amend.
IV.
Denial of motion for judgment as a matter of law
We review the denial of a Rule 50(b) motion de novo,

viewing
the
evidence
in
the
light
most
favorable
to
the
prevailing party, and will affirm the denial of such a motion

unless the jury lacked a legally sufficient evidentiary basis
for its verdict.
Bunn v. Oldendorff Carriers GmbH & Co. KG,
723 F.3d 454, 460 n.4 (4th Cir. 2013) (internal quotation marks
omitted).
RFT contends that the district court erred in not

7
granting its Rule 50(b) motion on its UTPA claim against PAS
because
it
presented
undisputed
evidence
proving
all
three
elements of UTPA.
To
recover
in
an
action
under
[South
Carolinas]
UTPA, the plaintiff must show: (1) the defendant engaged in an

unfair or deceptive act in the conduct of trade or commerce;
(2) the unfair or deceptive act affected public interest; and
(3) the plaintiff suffered monetary or property loss as a result
of the defendants unfair or deceptive act.
Health Promotion
Specialists, LLC v. S.C. Bd. of Dentistry, 743 S.E.2d 808, 816

(S.C.
2013).
Under
UTPA,
to
establish
proximate
cause,
the
alleged injury must be the natural and probable consequence of

the complained of conduct.
Collins Holding Corp. v. Defibaugh,
646 S.E.2d 147, 149-50 (S.C. Ct. App. 2007).
More traditionally
stated, proximate cause requires proof of causation-in-fact, or

but-for
causation,
and
legal
causation,
or
foreseeability.
Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C. 2006).
Viewing the evidence in the light most favorable to
PAS, we conclude that PAS presented sufficient evidence from
which a reasonable jury could conclude that PASs appraisals of
the two lots, even if unfair or deceptive, did not proximately
cause RFTs loss.
Thus, because a reasonable jury could have
found against RFT on the proximate cause element of UTPA, we

affirm the district courts denial of RFTs Rule 50(b) motion.
8
V.
Denial of motion for a new trial
A district courts denial of a motion for a new trial

is reviewed for abuse of discretion[] and will not be reversed
save in the most exceptional circumstances.
Minter v. Wells
Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014).
After a
jury trial, a district court may grant a motion for a new trial
for
any
reasons
for
which
new
trials
have
heretofore
granted in actions at law in federal court,

59(a)(1),
including
for
substantial
been
Fed. R. Civ. P.
errors
in
admission
or
rejection of evidence or instructions to the jury, Montgomery

Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).
RFT
contends
that
the
district
court
erred
by
not
granting its motion for a new trial on its UTPA and professional
negligence
claims
against
PAS
citing
asserted
errors
courts evidentiary rulings and jury instructions.

RFTs
assertions
standard
of
of
review
error
to
in
each
turn,
issue
applying
raised.
in
the
We address
the
appropriate
See
Buckley
v.
Mukasey, 538 F.3d 306, 317-21 (4th Cir. 2008).

A.
Evidentiary rulings.
We
review
trial
courts rulings on the admissibility of evidence for abuse of

discretion, and we will only overturn an evidentiary ruling that
is arbitrary and irrational.
quotation marks omitted).
or
reverse
judgment
Minter, 762 F.3d at 349 (internal
Furthermore, we will not set aside

on
the
9
grounds
that
evidence
was
erroneously admitted unless justice so requires or a partys

substantial rights are affected.
Creekmore v. Maryview Hosp.,
662 F.3d 686, 693 (4th Cir. 2011).

Preliminarily, we find that several of the claims of
error
advanced
by
RFT
do
not
comply
with
Fed.
R.
App.
P.
28(a)(8)(A), and, therefore RFT has forfeited review of those

claims.
See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 153
n.6 (4th Cir. 2012).
Those claims that are properly presented
for appellate review, in our determination, do not demonstrate

that the district court abused its discretion in its evidentiary
rulings.
Accordingly, we conclude that the district court did
not abuse its discretion in denying RFTs motion for a new trial
based on assertions of erroneous evidentiary rulings.
B.
Jury instructions.
[W]e review a trial courts
jury instructions for abuse of discretion, keeping in mind that

a trial court has broad discretion in framing its instructions
to a jury.
omitted).
Bunn, 723 F.3d at 468 (internal quotation marks

Instructions
will
be
considered
adequate
if
construed as a whole, and in light of the whole record, they

adequately informed the jury of the controlling legal principles
without misleading or confusing the jury to the prejudice of the
existing party.
Id. (internal quotation marks omitted).
Even
if a jury was erroneously instructed, however, we will not set

aside
resulting
verdict
unless
10
the
erroneous
instruction
seriously
prejudiced
the
challenging
partys
case.
Id.
whether
RFTs
(internal quotation marks omitted).

As
asserted
an
errors
initial
have
been
matter,
we
properly
address
preserved.
party
who
objects to an instruction or the failure to give an instruction

must do so on the record, stating distinctly the matter objected
to
and
the
51(c)(1).
grounds
for
the
objection.
Fed.
R.
Civ.
P.
When challenging instructions on appeal, a party
must furnish the court of appeals with so much of the record of

the
proceedings
below
appellate review.
marks omitted).
as
is
necessary
to
enable
informed
Bunn, 723 F.3d at 468 (internal quotation

However, a formal exception to a ruling or
order is unnecessary. . . . [A] party need only state the action

that it wants the court to take or objects to, along with the
grounds for the request or objection.
Consequently,
Rule
51
generally
will
Fed. R. Civ. P. 46.

not
preclude
appellate
review where the district court was fully aware of [a partys]

position
and
obviously
considered
and
rejected
[it].
City of Richmond v. Madison Mgmt. Grp., Inc., 918 F.2d 438, 453
(4th Cir. 1990) (internal quotation marks omitted).
Under these principles and the facts in the record, we
find that RFTs challenges to the jury instructions during the
charge conference constitute objections for Rule 51 purposes.
Nevertheless, we find that RFT failed to preserve a number of
11
the
errors
it
asserts
on
appeal
because
either
the
district
courts ruling or RFTs objection thereto is absent from the

record.
With one exception, we conclude that the assertions
properly preserved and presented for appellate review either are

meritless or assert only harmless error.
With
respect
to
the
remaining
asserted
error,
RFT
contends that the district court erred by instructing the jury

that conduct affecting only the parties involved cannot satisfy
UTPAs
public
interest
requirement.
We
agree.
Under
South
Carolina law, a plaintiff satisfies the public interest element

of UTPA by proving that the conduct at issue had the potential
for repetition; no further proof is required.
See Crary v.
Djebelli, 496 S.E.2d 21, 23 (S.C. 1998); Daisy Outdoor Adver.

Co. v. Abbott, 473 S.E.2d 47, 50 (S.C. 1996).
The courts
instruction placed an additional requirement of proof on RFT.

This erroneous instruction constituted an abuse of discretion
and seriously prejudiced RFTs case.
See Coll. Loan Corp. v.
SLM Corp., 396 F.3d 588, 600 (4th Cir. 2005).
Consequently, the
courts order denying RFTs motion for a new trial on the UTPA
claim constitutes an abuse of discretion.
We therefore affirm
the order denying a new trial as to the professional negligence

claim, reverse as to the UTPA claim, and remand to the district
court for further proceedings consistent with this opinion.
12
We dispense with oral argument because the facts and

legal
before
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
13

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

RFT MANAGEMENT COMPANY LLC,

January 29, 2015

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished

Harry A. Swagart, III, HARRY A. SWAGART, III, P.C., Columbia,

Unpublished opinions are not binding precedent in this circuit.

manager, David Roatch, purchased two lots from a real estate

Due to the economic downturn, development stalled,

and the lots value plummeted.

With the real estate developer

no longer in business, RFT filed suit against the appraiser,

A jury found in favor of Defendants on

claims during the pretrial stage.

This appeal followed.

On appeal, RFT asserts that the district court erred

S.C. Code Ann. 39510 to 560 (1985 & Supp. 2014).

S.C. Code Ann. 351101 to 703 (1987 & Supp. 2014).

Disclosure Act (ILSFDA) 3 and 10(b) of the Securities Exchange

decisions in turn, we affirm the first four, affirm in part and

Claims dismissed on the basis of res judicata

We review de novo a Fed. R. Civ. P. 12(b)(6) dismissal

Brooks v. Arthur, 626 F.3d

194, 200 (4th Cir. 2010).

Federal courts are bound by 28 U.S.C.

determine the extent to which a state court judgment should have

Exxon Mobil Corp. v.

In South Carolina, the doctrine of res judicata

15 U.S.C. 1701-1720 (2012).

15 U.S.C. 78(j) (2012).

17 C.F.R. 240.10b-5 (2014)

litigated in a prior suit, and the claim[] arise[s] out of the

prior action between [the same] parties.

civil conspiracy, UTPA, and SCUSA claims meet the requirements

We note that the law of South Carolina distinguishes

The district courts order dismissing the claims relied on

Claims dismissed for failure to state a claim

We review de novo a district courts dismissal for

survive a motion to dismiss, a complaint must present factual

In applying that standard, we take all facts pleaded

as true, and draw all reasonable inferences in RFTs favor.

Relevant to this appeal, Fed. R. Civ. P. 8 requires that a

determination that aider and abettor liability is not available

Accordingly, we do not review that determination.

conclude that RFTs complaint alleged only that Appellees were

affirm the district courts order dismissing RFTs ILSFDA and

III. Denial of motion for leave to amend complaint

Although leave to amend a complaint should be freely

15(a)(2), after the deadlines provided by a scheduling order

diligence of the party seeking amendment.

Hotels of P.R., 357 F.3d 152, 155 (1st Cir. 2004).

Denial of motion for judgment as a matter of law

We review the denial of a Rule 50(b) motion de novo,

prevailing party, and will affirm the denial of such a motion

Bunn v. Oldendorff Carriers GmbH & Co. KG,

RFT contends that the district court erred in not

UTPA, the plaintiff must show: (1) the defendant engaged in an