UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH L. DANTONI, d/b/a The
Dantoni Company, d/b/a
Westminster Scientific,
Incorporated,
Plaintiff-Appellant,

v.
                                                               No. 96-1923
TIM TYLER, d/b/a Seaboard Milling
Company; MARY TYLER, d/b/a
Seaboard Milling Company; TIM
TYLER, President; HAROLD BUZZELL,
d/b/a Seaboard Milling Company,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-94-200-2-23-J)

Submitted: July 8, 1997

Decided: September 4, 1997

Before WILKINS and NIEMEYER, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Steven S. Biss, MALONEY, BARR & HUENNEKENS, Richmond,
Virginia, for Appellant. James D. Nance, HENDERSON & SALLEY,
Aiken, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joseph L. Dantoni ("Dantoni") entered into an agreement with Tim
Tyler ("Tyler"), in which Tyler agreed to manufacture and bag animal
litter and Dantoni agreed to pay him the cost of the ingredients plus
$60 per ton. Dantoni also shipped milling equipment to Tyler to use
in the milling process. Relations deteriorated, and Tyler used Dan-
toni's equipment for purposes other than manufacturing animal litter
for Dantoni; Dantoni failed to pay Tyler for some of the animal litter
manufactured, and some of the litter bags were destroyed as they sat
in Tyler's warehouse.

Dantoni filed a diversity action under 28 U.S.C.A.§ 1332 (West
Supp. 1997), in federal district court alleging a breach of contract and
conversion of his milling equipment and animal litter bags. Tyler
counterclaimed seeking money owed under the parties' contract. At
the close of Dantoni's evidence, the court granted Dantoni's motion
for judgment as a matter of law on the conversion of his equipment
claim but dismissed Dantoni's claim for conversion of the litter bags.
Pursuant to the jury's findings, the district court entered a judgment
finding for Dantoni on his contract claim (but awarding no damages)
and awarding $6700 in actual damages to Dantoni on his conversion
of equipment claim. The jury also awarded $6700 to Tyler for his
breach of contract claim for animal litter he had manufactured but had
not been paid for under the agreement.

On appeal, Dantoni alleges that (1) the district court erred by grant-
ing Tyler's motion for judgment as a matter of law dismissing his
conversion of the litter bags claim; (2) the jury's award of $6700 to
him is not supported by substantial evidence; and (3) he was over-
charged by Tyler for animal litter manufactured. For the reasons that
follow, we affirm.

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A movant is entitled to a judgment as a matter of law "if the non-
moving party failed to make a showing on an essential element of his
case with respect to which he had the burden of proof." Singer v.
Dungan, 

, 827 (4th Cir. 1995) (citation omitted).
Although this court's review of the decision to grant judgment as a
matter of law is plenary, it is circumscribed because the court must
view the evidence in the light most favorable to the nonmovant. See

conversion is defined as an "unauthorized
assumption and exercise of the right of ownership over goods or per-
sonal chattels belonging to another, to the exclusion of the owner's
rights." Owens v. Andrews Bank & Trust Co. , 

, 119
(S.C. 1975) (citation omitted). We find that the district court properly
dismissed Dantoni's action for conversion of the litter bags because
the evidence at trial revealed Dantoni had free access to the bags but
failed to pick them up. See 

claims, Dantoni attacks the $6700 verdict as too
small and the $6700 verdict for Tyler as too large. We decline to dis-
turb the judgment on that ground. See Compton v. Wyle Labs., 

, 209 (4th Cir. 1982) (assessment of damages is entrusted to
the jury and is not subject to appellate review unless unconscionable
or motivated by extreme prejudice). Accordingly, we affirm. We dis-
pense 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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