Filed: Feb. 10, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1843 THE MUHLER COMPANY, INC., Plaintiff - Appellant, v. PLY GEM HOLDINGS, INC.; AWC HOLDING COMPANY; MW MANUFACTURERS, INC.; PLY GEM INDUSTRIES, INC.; ALENCO HOLDING CORPORATION; MWM HOLDINGS, INC., Defendants – Appellees, and PLY GEM WINDOW GROUP; MW WINDOWS & DOORS; GREAT LAKES WINDOWS, Defendants. Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior Distr
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1843 THE MUHLER COMPANY, INC., Plaintiff - Appellant, v. PLY GEM HOLDINGS, INC.; AWC HOLDING COMPANY; MW MANUFACTURERS, INC.; PLY GEM INDUSTRIES, INC.; ALENCO HOLDING CORPORATION; MWM HOLDINGS, INC., Defendants – Appellees, and PLY GEM WINDOW GROUP; MW WINDOWS & DOORS; GREAT LAKES WINDOWS, Defendants. Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior Distri..
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UNPUBLISHED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 COMPANY; MW
MANUFACTURERS, INC.; PLY GEM INDUSTRIES, INC.; ALENCO
HOLDING CORPORATION; MWM HOLDINGS, INC.,
Defendants – Appellees,
and
PLY GEM WINDOW GROUP; MW WINDOWS & DOORS; GREAT LAKES
WINDOWS,
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Affirmed by unpublished per curiam opinion.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
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Unpublished opinions are not binding precedent in this circuit.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.” Bostic v. Schaefer,
760 F.3d 352, 370 (4th Cir. 2014) (internal quotation marks
omitted). In making this determination, we “view[] all facts
and draw[] all reasonable inferences in the light most favorable
to the nonmoving party.” Building Graphics, Inc. v. Lennar
Corp.,
708 F.3d 573, 578 (4th Cir. 2013). “[T]he nonmoving
party must rely on more than conclusory 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. 15 U.S.C.
§ 1125(a) (2012). Similarly, SCUTPA prohibits “[u]nfair methods
of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.” S.C. Code Ann. § 39-5-20(a)
(1985 & Supp. 2015). To prove a claim under either statute, the
plaintiff must 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 from the deception wrought by the
defendant’s advertising.” Lexmark, 134 S. Ct. at 1391. In
Lexmark, the Supreme Court held that Static Control Components
had adequately alleged that Lexmark International’s trade
practices proximately caused Static Control’s lost 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 case brought by an indirect victim, in which the
calculation of damages proximately attributable to the alleged
misconduct is complex and uncertain. See, e.g., Anza v. Ideal
Steel Supply Corp.,
547 U.S. 451, 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.” Bishop v. S.C. Dep’t of
Mental Health,
502 S.E.2d 78, 88-89 (S.C. 1998).
“Foreseeability is determined by looking to the natural and
probable consequences of the act complained of.” Vinson,
477
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S.E.2d at 721. 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 “the evidence is susceptible to only one
inference.” Cody P. v. Bank of Am., N.A., 720 S.E.2d 473, 478-
79 (S.C. 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, plaintiff has failed to carry the burden of
establishing that his injuries were the proximate result of
defendants’ [misconduct].” 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 proffered by a local contractor, attributing his
decision to purchase Ply Gem products to price, did not
establish that Muhler would have obtained the sale had the
contractor not selected a Ply Gem product. While Muhler also
provided affidavits from members of its sales 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 failed, as a matter of law, to establish
ascertainable damages necessary to support a 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 or damage,” he must present sufficient evidence to
permit the factfinder “to determine the amount thereof with
reasonable certainty and accuracy. Neither the existence,
causation[,] nor amount of damages can be left to conjecture,
guess[,] or speculation.” Baughman v. AT&T,
410 S.E.2d 537, 546
(S.C. 1991) (internal quotation 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 the amount of damages attributable to Ply Gem’s
alleged mislabeling, as opposed to other causes. Thus, we
conclude the district court properly determined that Muhler
failed to provide evidence sufficient to support a
nonspeculative damages calculation.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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