                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 02-2324



RCSH OPERATIONS, L.L.C., a Louisiana Limited
Liability Company,

                                             Plaintiff - Appellant,

           versus

THIRD   CRYSTAL   PARK   ASSOCIATES   LIMITED
PARTNERSHIP, a Virginia Limited Partnership;
CHARLES E. SMITH MANAGEMENT, INCORPORATED, a
District of Columbia Corporation; CESC PARK
THREE LAND, LLC, a Virginia Limited Liability
Company; CESC PARK THREE MANAGER, LLC, a
Virginia Limited Liability Company,

                                            Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge; T. S. Ellis, III, District Judge. (CA-02-173-A)


Argued:   October 30, 2003              Decided:     November 16, 2004


Before WILKINSON and TRAXLER, Circuit Judges, and Robert E. PAYNE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


 Affirmed by unpublished per curiam opinion.


ARGUED: Vernon Webster Johnson, III, JACKSON & CAMPBELL, P.C.,
Washington, D.C., for Appellant.   John Henry Carstens, JORDAN,
COYNE & SAVITS, L.L.P., Fairfax, Virginia, for Appellees.    ON
BRIEF: Russell S. Drazin, JACKSON & CAMPBELL, P.C., Washington,
D.C., for Appellant. Melissa A. Zeller, JORDAN, COYNE & SAVITS,
L.L.P., Fairfax, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     RCSH Operations, L.L.C. (“RCSH”) appeals from an award of

summary judgment dismissing its breach of contract and negligence

claims    against    the    defendants,       Third    Crystal    Park   Associates

Limited Partnership (“TCP”), Charles E. Smith Management, Inc.,

CESC Park Three Land, LLC, and CESC Park Three Manager, LLC, and

from a judgment, following a bench trial, in favor of TCP on its

counterclaim against RCSH for breach of contract.                 For the reasons

set forth below, we affirm both the entry of summary judgment in

TCP’s favor on RCSH’s claims and the entry of judgment in favor of

TCP on its counterclaim.



                                         I.

     In   1993,     TCP    and   Prime   L.L.C.       (“Prime”)   entered   into   a

commercial lease agreement (the “Lease”) by which Prime leased

space on the eleventh floor of a building owned by TCP.                   From then

until August 1998, Prime operated a franchised Ruth’s Chris Steak

House restaurant in the leased premises.1                  In August 1998, the

franchise restaurant was purchased from Prime by Ruth’s Chris Steak

House #28, Inc. (“RC #28"), a corporate subsidiary of Ruth U.

Fertel, Inc., then the parent corporation of the Ruth’s Chris Steak

House organization. Also, in August 1998, RC #28 assumed the Lease


     1
       Before Prime leased the premises for use as a Ruth’s Chris
restaurant, the premises had previously been leased to another
entity for use as a restaurant.

                                         3
from Prime and thereafter operated the Ruth’s Chris restaurant

under the Lease until March 2001 when RC #28 was merged into RCSH,

which assumed the Lease.   Pursuant to   the merger agreement, RC #28

ceased to exist.

     This action arises out of plumbing problems at the restaurant

in 1999 while RC #28 was the tenant.     The principal drain line for

the restaurant is a five inch drain (the “5" line”) that runs

vertically and horizontally in a zig-zag pattern as it wends its

way down and across the building from the eleventh floor to the

sewer connection that is located in the basement.     The 5" line and

other drains in the restaurant that lead to the 5" line, became

clogged, resulting in flooding on the eleventh floor and four

lower floors in the building.    The restaurant was damaged and so

too were an adjacent tenancy on the eleventh floor, as well as

other tenancies on the first, second, third and fifth floors.

Extensive cleaning and repair of the restaurant was required and,

while that was underway, the restaurant was closed.     According to

the complaint, RC #28 incurred approximately $355,000 in direct

repair costs, and it suffered approximately $1.15 million in lost

profits while the restaurant was closed from January 3, 2000 to

April 3, 2000.

     TCP also incurred expenses in its emergency response to the

flooding in the restaurant, in the adjacent tenancy on the eleventh

floor, and in the tenancies on the four lower floors.       TCP also


                                 4
incurred expenses to repair flood damage to the restaurant and

other tenant spaces.        According to TCP, it paid $110,372.14 to

various contractors and its property manager in order to respond to

the emergency and to remedy the damage caused by the flooding.

     Although RC #28 was the tenant at the time of the flooding in

the summer of 1999, it ceased to exist after its merger into RCSH

in 2001 and thus RCSH instituted this action, as RC #28's successor

in interest.   The complaint asserted claims for breach of contract

(Count   I),   negligence    (Count   II),   and   conspiracy    to   injure

another’s trade reputation and business (Count III).            TCP filed a

counterclaim against RCSH, seeking to recover the expense that it

had incurred in responding to the emergency and in repairing damage

to the other tenancies and the drain lines.

     Count III was dismissed early in the proceedings, and it is

not at issue in this appeal.     Following the close of discovery, the

district court granted summary judgment in favor of all defendants

against RCSH on its breach of contract and negligence claims.

Thereafter, a pretrial conference was held and the case was set for

jury trial. Approximately a week later, TCP moved to strike RCSH’s

request for a jury trial on the ground that the parties had waived

their right to jury trial under Section 47 of the Lease.                 The

district court granted that motion, and TCP’s counterclaim was




                                      5
tried to the court sitting without a jury, after which a judgment

was entered in TCP’s favor in the amount of $110,372.14.2



                                     II.

       We review de novo the district court’s grant of summary

judgment, Inova Alexandria Hosp. V. Shalala, 244 F.3d 342, 349 (4th

Cir. 2001).       That includes a de novo assessment of the legal issue

whether the Lease was ambiguous.          Moore Bros. Co. V. Brown & Root,

Inc., 207 F.3d 717, 722 (4th Cir. 2000).

       Section 7 of the Lease, “REPAIRS AND MAINTENANCE,” provides,

in pertinent part, that the “[t]enant shall at its own expense make

all repairs to the interior of the Demised Premises. . . .”           (JA

67).       Section 49, entitled “TENANT REPAIRS AND MAINTENANCE” amends

Section 7, by inserting immediately after the foregoing quoted

text, the provision that: “[t]enant shall also maintain and repair

all drain lines, grease traps, conduits, ducts and other facilities

in the Building which are dedicated to serving the equipment in the

Demised Premises.”3       (JA 85).




       2
       United States District Judge Gerald Bruce Lee decided the
summary judgment motions and the motion to strike RCSH’s demand for
jury trial. United States District Judge T.S. Ellis, III tried the
counterclaim and entered judgment on it.
       3
       Section 49 adds several other provisions for insertion into
Section 7 at this point, but none of them are pertinent to
resolution of the issues presented in this appeal.

                                      6
       In 1999, the 5" line and other drain lines that connected to

it became clogged.         Those lines were dedicated solely to service

the restaurant. The 5" line received kitchen waste and sewage from

the bathrooms in the restaurant and then carried the combined

waste through the building to the county’s sewer line with which

the 5" line connected at the garage level of the TCP building.

       The    record    also   reflects   that,   in   1995,   when   Prime   was

operating a franchised Ruth’s Chris Steak House restaurant in the

leased premises, the restaurant experienced two flooding problems

in the 5" line and that, consequently, an outside plumbing company

was called upon to unclog the drain lines.              The plumbing company

used electrical “snaking” equipment and completely cleared the

line.        Also, in 1995, the plumbing company installed special

“clean-outs” so that future maintenance of the line would be

easier, and advised that the 5" line should be “snaked” regularly.

       Roger    Pastore,    an     experienced   restaurant    manager,   became

general manager of the restaurant in January 1997, and he was aware

of the need to maintain the drain lines that served the restaurant.

In fact, in 1997, TCP’s property management company reminded

Pastore that maintenance of the 5" line was the restaurant’s

responsibility under the Lease, (JA 517; 266), and Pastore passed

this    along   to     corporate    headquarters.      The   plumber,   who   had

“snaked” the line in 1995, returned to clean the line in the summer

of 1997.      He observed that the condition of the 5" line was worse


                                          7
than it had been in 1995 and concluded that the line did not appear

to have been cleaned since 1995.         Nonetheless, and notwithstanding

that the line was completely clogged, the plumber, using the same

procedure followed in 1995, was able to clear out the entire line

once again.   From the record, it appears that no “snaking” or other

cleaning was performed between the summer of 1997 and the summer of

1999 when the flooding that gave rise to this action occurred.

       The district court held that the applicable provisions of the

Lease (Sections 7 and 49) unambiguously placed responsibility for

maintaining and repairing the drain pipes on the tenant.               Finding

no dispute respecting whether the 5" line and the connected lines

served only the restaurant, and rejecting the contention of RCSH

that the language at issue was ambiguous, the district court held

that, “because the only reasonable construction and the plain and

unambiguous meaning of Paragraph 49 allocates the maintenance and

repair   responsibilities     of   the   drain   lines    at   issue   to   the

Plaintiff-Tenant, Defendants had no obligation to maintain the

drain lines and therefore did not breach the [Lease].”             (JA 335).

       As it did in the district court, RCSH argues here that Section

49 is ambiguous because it does not define the term “equipment.”

From   that   point   of   departure,     RCSH   argues   that   the   toilet

facilities which drain into the 5" line were, under property law,

generally regarded as “improvements,” not “equipment,” and that,




                                     8
therefore, the 5" line at issue was not “dedicated to serving the

equipment in the Demised Premises.”

     Mindful that the undisputed record was that the sewage from

the toilets in the restaurant and the waste from the kitchen both

are carried away from the restaurant by the 5" line and that the 5"

line and the connected lines served only the restaurant, the

district court rejected RCSH’s argument because:

           The five inch drain line at issue served only
           the Plaintiff-Tenant’s restaurant.    Reading
           the Lease as a whole, the only logical
           construction of Paragraph 49 is that the
           tenant is responsible for maintenance of the
           drains and drain lines that serve the
           restaurant’s equipment but do not serve the
           equipment of other tenants.       Plaintiff’s
           construction of Paragraph 49 would read the
           ‘drain line . . . dedicated to serving the
           equipment in the Demised Premises’ language
           right out of the [Lease].

We agree with the district court that the Lease does not make a

property    law-based    distinction   between     “equipment”    and

“improvements.”     Instead, given its plain meaning, the text of

Section 49 simply obligates the tenant to maintain and repair those

drain lines that serve its facilities, as opposed to the facilities

of other tenants.   We also agree that RCSH’s interpretation of the

Lease is so cramped as to render Section 49, an important part of

the Lease, a nullity.

     In this diversity case, the district court was obligated to

apply the law of Virginia, the forum state.      The Supreme Court of

Virginia has spoken to the issues here presented in TM Delmarva

                                 9
Power, L.L.C. v. NCP of Va., L.L.C., 557 S.E.2d 199, 200 (Va. 2002)

wherein the court held that:

          A contract is not ambiguous merely because the
          parties disagree as to the meaning of the
          terms used.   Furthermore, contracts must be
          considered as a whole ‘without giving emphasis
          to isolated terms.’      Finally, no word or
          clause in a contract will be treated as
          meaningless if a reasonable meaning can be
          given to it, and the parties are presumed not
          to have included needless words in the
          contract.

Id. at 200 (citations omitted).        The attempt of RCSH to create

ambiguity in the Lease runs afoul of these basic precepts because

it wrenches the words “dedicated” and “equipment” out of their

context and, in so doing, treats what is a highly relevant contract

amendment as devoid of purpose.

     For the foregoing reasons, we affirm the decision of the

district court to grant summary judgment on Count I, RCSH’s breach

of contract claim.4




     4
       RCSH alleged that there was an oral agreement in 1997,
pursuant to which RCSH agreed to increase the frequency of its
maintenance of the 5" line to twice annual cleanings and the
defendant, TCP, agreed to pay for property damage associated with
the flooding of the 5" line. This alleged oral modification of the
Lease is barred by the provision of the Lease in Section 24 which
prohibits modification of the Lease except “in writing, signed by
the parties hereto.” The district court properly applied Section
24 to bar any oral modification of the Lease.

                                  10
                                    III.

     The district court also granted summary judgment on RCSH’s

negligence claim which was predicated on the theory that the

defendants owed a number of common law duties not governed “solely

by virtue of the contractual relationships between the parties,”

which the defendants negligently failed to fulfill. (JA 19) In the

view of RCSH, “[t]he       leakage, flooding and related damage to the

Restaurant   would   not    have   occurred   but   for   the   Defendants’

negligent failure to ‘fulfill’ the duties.”           The district court

rejected that contention, holding that:

           Plaintiff’s negligence claim fails for one
           simple reason.    Though Plaintiff argues at
           great   length   that   Virginia   and   other
           jurisdictions recognize common law duties in
           some cases where a commercial lease exists, it
           fails to set forth any evidence showing a
           specific common law duty that the Defendants
           breached in this case.

(JA 337)

     It is true that, in the complaint, RCSH cataloged ten duties

which the defendants supposedly had breached. However, by the time

of summary judgment, none of those duties was tethered to any

factual base other than the maintenance of the 5" line and the

lines connected to it which, as outlined in Section II above, was

a duty that, by contract, the parties had allocated to the tenant.

Thus, after discovery, and at the time of summary judgment, the

negligence claim was nothing more than a recasting of the breach of

contract claim in negligence terms.           And, the only duty that


                                     11
allegedly was breached by the defendants was the putative duty to

maintain the 5" line and the connected lines.

     Although, under Virginia law, a negligence claim conceivably

can exist in tandem with a breach of contract claim, that is so

only if the negligence claim is based on the breach of some duty

that is independent of the contract.       A&E Supply Co. v. Nationwide

Mutual Fire Ins. Co., 798 F.2d 669, 671-72 (4th Cir. 1986) (citing

Kamlar Corp. V. Haley, 229 S.E.2d 514, 517 (Va. 1983)).         It is the

responsibility of the nonmoving party to identify the existence of

a specific, independent duty that was breached.           As the district

court correctly held, RCSH failed to discharge that fundamental

responsibility demanded of it by now well-settled summary judgment

jurisprudence.

     Instead, RCSH relied principally on a string of premises

liability cases which, as the district court correctly held, had no

applicability in this case in which the issue is: upon which party

did the Lease place the obligation to maintain the 5" line and the

connected drain lines that served the restaurant.              Also, RCSH

cited:   (1)   a   number   of   inapplicable   cases   addressed   to   the

obligation of landlords to protect business invitees from personal

injury, a circumstance not here at issue; (2) a case decided under

the 1974 Virginia Residential Landlord Tenant Act, a statute that

does not apply to commercial leases (Va. Code Ann. §§ 55-248.2 to

28.40); and (3) decisions involving the Uniform Statewide Building


                                     12
Code (Va. Code §§ 36-97 to 36-119.1) which, absent contractual

provisions to the contrary, places repair and maintenance of a

building upon the owner, a fact pattern that did not exist here.

On the facts presented by this record, the district court correctly

concluded that these decisions and statutes had no applicability in

this case.

      Finally, RCSH argued that the tenant did not have access to,

or control over, the entire length of the 5" line and that,

therefore,      notwithstanding        the       language     of    the    Lease     that

specifically allocated maintenance of that line to the tenant, the

responsibility really remained with TCP.                    There are two flaws in

that theory.      First, the record is replete with evidence that, at

least   in   1995     and   1997,     TCP    afforded       the    tenant’s   plumbing

contractor access to all areas necessary to clear the clogged 5"

line from the restaurant all the way to the point where the line

connected      with   the    sewer    (e.g.       across    and     down   the     entire

building). Second, perhaps as a function of the foregoing, and, as

held by the district court, “[P]laintiff does not come forward with

any   evidence      that    Defendants       denied   access        to    Plaintiff    or

Plaintiff’s contractor to maintain the drain line pursuant to the

Lease.”   (JA 338).        We agree that, in opposing the entry of summary

judgment, RCSH offered no factual support for its assertion that

the   tenant    was   denied    the    access      necessary       to    discharge    the




                                            13
maintenance obligation imposed on it by Sections 7 and 49 of the

Lease.5

     For the foregoing reasons, we affirm the grant of summary

judgment on Count II, RCSH’s negligence claim.6



                                    IV.

     TCP filed a counterclaim against RCSH alleging that the

failure   of   the   tenant   to   perform   inspections,   repairs   and

maintenance necessary to keep the drain lines that were dedicated

to serving the restaurant in good working order was a breach of the

Lease and that, as a direct and proximate cause of the breach, the

pipes burst, causing flooding in the building, the consequence of

which was the damage sustained by TCP.       The counterclaim was tried

to the district court sitting without a jury.

     To recover on its counterclaim, TCP was obligated to prove, by

a preponderance of the evidence, that a material breach of the

Lease on the part of the tenant was the proximate cause of the

damage of which TCP complains.       The district court held that TCP




     5
       RCSH also seems to argue that RC #28, the tenant, was
unaware of the existence of some of the connected lines. That, of
course, is no excuse because the Lease requires the tenant to
maintain and repair all drains dedicated to serving the leased
premises.
     6
       Given this resolution, it is unnecessary to address TCP’s
argument that the negligence claim fails under Virginia’s economic
loss rule.

                                    14
had met its burden and entered judgment on the counterclaim.           RCSH

appeals from that judgment.

     We begin by noting that, as explained above in Section II, the

Lease imposes upon the tenant the obligation to “maintain and

repair all drain lines, grease traps, conduits, ducts and other

facilities in the building which are dedicated to serving the

equipment in the Demised Premises.”         The district court found, as

facts, that the drain lines at issue were dedicated to serving the

kitchen and bathroom facilities      in the restaurant; that the drain

lines had not been maintained by the tenant; and that the failure

to maintain the drain lines proximately caused the drain lines to

rupture and to release waste and sewage into the restaurant and

other tenant spaces.    The district court also held, as a fact, that

TCP consequently had incurred reasonable necessary expenses in the

amount of $110,372.14 to address the emergency flooding and to

remediate the damage caused by the tenant’s breach of the Lease.

     RCSH presents four reasons why the district court’s entry of

judgment in favor of TCP on the counterclaim was error.                    We

consider each in turn.

     A.    The Assumption and Assignment Agreement

     The   district   court   held   that   RCSH   was   the   successor   in

interest to RC #28 and thus was liable by virtue of Sections 19 and

34.2 of the Lease for the acts and omissions of RC #28 while it was

the tenant.    RCSH does not dispute that it is the successor in


                                     15
interest under the Lease to RC #28.7           Nor does RCSH dispute that

Section 19 of the Lease devolves the liabilities of RC #28 upon

RCSH when it provides that “[a]ll rights, remedies and liabilities

herein given to or imposed upon either of the parties hereto, shall

extend    to    their   respective   heirs,   executors,   administrators,

successors, and assigns.”        And, RCSH agrees that Section 34.2 of

the Lease permits the tenant to assign its rights to:

               Ruth U. Fertel, Inc. or any entity or
               individual designed by Ruth U. Fertel, Inc.,
               so long as (1) such assignee expressly assumes
               in writing all the obligations of Tenant under
               this Lease . . . and (2) Ruth U. Fertel, Inc.
               unconditionally guarantees the obligations of
               such assignee for the balance of the term of
               this Lease (and any extensions) . . .

(JA 76)

     It also is undisputed that, in March 2001, by virtue of an

Assignment       and    Assumption   of    Lease   Agreement   (“Assignment

Agreement”), RC #28 assigned its rights under the Lease to RCSH, a

subsidiary of, and an entity that was approved by, Ruth U. Fertel,




     7
       Nor could RCSH dispute that finding, given that, in its
complaint, RCSH affirmatively asserted that it was “successor in
interest to [RC #28]” and that, as such, it was the proper party to
sue on the Lease. Complaint, ¶1, (JA 13-14). Moreover, RCSH’s
complaint also describes RC #28 as RCSH’s predecessor in interest
which incurred the very damages (repair expense and lost profits)
that RCSH sought to recover in its complaint.

                                      16
Inc.8       Under paragraph 2 of the Assignment Agreement, RCSH, as

assignee of RC #28:

                agrees to pay, perform and fully discharge, in
                accordance with their respective terms, the
                payment and performance, liabilities and
                obligations of Assignor [RC #28] arising out
                of the Lease after the date hereof. Assignee
                does not assume or agree to pay any
                liabilities or obligations under the Lease
                arising prior to the date hereof.

(JA 105).        Acting through its property manager, TCP consented to

the assignment.         (JA 108)

        According to RCSH, TCP waived the rights it had under Sections

19 and 34.2 of the Lease to recover from RCSH, as successor in

interest to RC #28, for any breach of the Lease by RC #28 because

TCP consented to the Assignment Agreement which provided that RCSH

did “not assume or agree to pay any liabilities obligations under

the Lease arising prior to the date hereof.”                  The district court

rejected RCSH’s waiver argument for a number of reasons, (JA 1267-

74) the first of which was that RCSH did not plead the affirmative

defense of waiver in its answer to the counterclaim.                   (JA 1270)

        Under    Fed.   R.   Civ.   P.   8(c),   “a   party    shall    set   forth

affirmatively . . . waiver, and any other matter constituting an

avoidance or affirmative defense.” It is settled that a failure to

raise an affirmative defense in the appropriate pleading results in



        8
       By the time of the Assignment Agreement, Ruth U. Fertel,
Inc. had become Ruth’s Chris Steak House, Inc., and RCSH was a
wholly owned subsidiary of that entity. (JA 105-111).

                                         17
the loss of that defense.   Brinkley v. Harbor Recreation Club, 180

F.3d 598, 612 (4th Cir. 1999); Peterson v. Air Line Pilots Assoc.

Intl, 795 F.2d 1161, 1164 (4th Cir. 1985).    It is beyond question

that RCSH did not plead in its answer to the counterclaim, waiver,

by virtue of paragraph 2 of the Assignment Agreement or otherwise.9

However, even if a party fails to plead an affirmative defense, the

opposing party still must show “prejudice or unfair surprise”

before the waiver will be enforced.   Brinkley v. Harbor Recreation

Club, 180 F.3d at 612; Peterson v. Air Line Pilots Assoc. Intl, 759

F.2d at 1164.   The district court held that TCP was prejudiced

because the failure of RCSH to plead the waiver defense disabled

TCP from discovering, or presenting evidence about, the topic of

waiver.

     The record does not show exactly when the issue of waiver

first surfaced, but it clearly was not pleaded as an affirmative

defense to the counterclaim.   The first mention of the topic in the

record was in the proposed findings of fact and conclusions of law

that both parties filed on Friday, August 23, 2002, two days before

the trial began on Monday, August 26, 2002.   (JA 340-357).   On the

morning of trial, TCP took the position that waiver had not been



     9
       Because the assignment provision contradicts the Lease and
was not accompanied by consideration that would be necessary to
effect a modification of the Lease, the consent to the Assignment
Agreement, including paragraph 2, is properly categorized as a
waiver of Sections 19 and 34.2 of the Lease. RCSH does not contest
that characterization.

                                 18
pleaded as an affirmative defense.             (JA 673-74).       RCSH did not

contend   otherwise,    and,    although,     in    opening   statement,   RCSH

pointed to paragraph 2 of the Assignment Agreement, it did so in

context of discussing the topic of successor liability, not the

topic of a waiver of the provisions of Sections 19 and 34.2 of the

Lease (JA 687-89).     And, even then RCSH’s counsel stated that the

successor   liability    issue       had    “just   come   up.”     (JA    689).

Nonetheless, in its post-trial brief in support of a motion for a

judgment as a matter of law, RCSH argued that paragraph 2 of the

Assignment Agreement was a contractual waiver that foreclosed

imposition of liability on RCSH as a successor in interest under

the Lease provisions.          (JA    1093-94).      And, in its post-trial

brief, TCP continued to press the point that RCSH had not pleaded

waiver as an affirmative defense.           (JA 1110-12; 1133-37).

      The district court held that the waiver defense had not been

pleaded and that TCP had been prejudiced by the failure to plead

it.   In so doing, the district court held: (1) that “TCP did not

have . . . fair warning that it was going to have to confront a

waiver, a timely waiver defense. . . . (JA 1271); and (2) that, if

it had received notice of the waiver defense, TCP would have

presented two exhibits that “strike, I think, a fatal blow to a

waiver claim, both on prejudice grounds and on other grounds.” (JA

1271).




                                       19
     That reference was to a letter that attended TCP’s consent to

the Assignment Agreement.   Both documents refuted paragraph 2 of

the Assignment Agreement.   The letter, which was addressed to TCP,

stated that:

               The purpose of this letter is to advise
          that Ruth U. Fertel, Inc. The parent company
          and sole shareholder of Ruth’s Chris Steak
          House #28, Inc. (“Tenant”), has changed its
          name to ‘Ruth’s Chris Steak House, Inc.’ The
          name change of Ruth U. Fertel, Inc. to Ruth’s
          Chris Steak House, Inc. is nominal and
          cosmetic only, and the ownership of Ruth U.
          Fertel, Inc. and the Tenant is not changing in
          any way whatsoever.

               In addition, all of the wholly owned
          subsidiaries of Ruth’s Chris Steak House, Inc.
          (formerly Ruth U. Fertel, Inc.) are being
          restructured    and   merged   for    internal
          operational purposes only.    As a result of
          this restructuring, the Tenant, Ruth’s Chris
          Steak House #28, Inc., will be merged with
          several other wholly owned subsidiaries of the
          parent into the newly created Louisiana
          limited liability company known as ‘RCSH
          Operations, LLC.’ The sole owner, member and
          manager of RCSH Operations, LLC is Ruth’s
          Chris Steak House, Inc. (formerly Ruth U.
          Fertel, Inc).

               As an accommodation to Tenant and Ruth’s
          Chris Steak House, Inc. (formerly Ruth U.
          Fertel, Inc.) and in light of our good working
          relationship,    we    ask   that    you,   as
          ‘Landlor/Intervenor,’ execute the attached
          Assignment and Assumption of Lease Agreement
          acknowledging the restructuring and renaming
          of Tenant to RCSH Operations, LLC; and the
          Assignment    of    Tenant’s   interests   and
          obligations in the Lease to RCSH Operations,
          LLC.




                                20
(JA   1141)   emphasis   added.   The    merger   agreement        explicitly

provided, in paragraph 2.05, that RCSH “shall be responsible for

all of the liabilities and obligations of” RC #28.           (JA    1147).

      The district court held that, if waiver by virtue of paragraph

2 of the Assignment Agreement had been pleaded, TCP could have

introduced    evidence   respecting    the   letter   from   RCSH     to   TCP

explaining that the change in corporate structure was a cosmetic

one, that ownership of the restaurant would remain the same, and

that the tenant would be not changing in any way.        Also, TCP could

have shown that RC #28 would be merged into the newly created RCSH

and that this merger was occurring “for internal purposes only.”

Further, TCP could have offered evidence that the merger agreement

provided that RC #28 would cease to exist and that the surviving

company, RCSH, would “be responsible for all of the liabilities and

obligations of corporation A [RC #28].”

      That kind of evidence would have been highly probative of the

effect, if any, of TCP’s consent to the Assignment Agreement and

the effect, if any, of paragraph 2 of the Assignment Agreement on

the provisions of Sections 19 and 34.2 of the Lease.          Undoubtedly,

the failure to plead waiver as an affirmative defense prejudiced

TCP because TCP did not pursue in discovery, and thus did not offer

at trial, proof that the consent to the Assignment Agreement did




                                  21
not have the effect of waiving Sections 19 and 34.2 of the Lease.10

And, of course, significant evidence of that sort was available, so

that the waiver issue, had it been pleaded, could have been

explored in discovery and at trial.

     It is no answer to say, as does RCSH, that TCP had possession

of these two documents before the litigation began and thus could

have anticipated the defense of waiver.    Rule 8(c) imposed on RCSH

the obligation to plead the waiver defense so that it could be

addressed in discovery and at trial.   It is precisely the sort of

procedural gamesmanship raised by the circumstances presented here

that Rule 8(c) is intended to foreclose.   Thus, we find no error in

the district court’s rejection of RCSH’s waiver defense.11




     10
       The district court also held that the two documents (which
were not permitted in evidence), along with other testimony would
call into play the rule, well-settled under Virginia law, that RCSH
was a mere continuation of RC #28 and thus would be liable as a
successor under any circumstances. It is unnecessary to address
this issue given the fact that RCSH did not plead the affirmative
defense of waiver as required by Rule 8(c) and because the district
court was clearly correct in finding that TCP was prejudiced by the
belated raising of that defense.
     11
       On appeal, as it did below, RCSH makes a pass at casting the
waiver defense as a question of successor liability.       However,
given its own pleadings, RCSH cannot be heard to assert that it is
not RCSH’s successor in interest. Thus, it must stand or fall on
the waiver defense.
     The district court, alternatively, held: (1) that if the
letter and the merger agreement had been admitted, they would
defeat the waiver defense on its merits; and (2) that RCSH did not
prove waiver by clear and convincing evidence. We need not address
either alternative holding.

                                22
     B.     TCP’s Rule 26(a)(1) Disclosure Respecting Damages

     In the initial disclosure of its damages made under Rule

26(a)(1), TCP disclosed damages in the amount of $78,346.87.             The

proof at trial showed damages of $110,372.14 which, of course, was

the amount of the judgment.          RCSH argued that TCP should be

foreclosed from proving the greater sum because it varied from the

amount of damages set out in TCP’s initial pretrial disclosure.

     The district court rejected that argument, holding that:

            There is no showing on this record of any
            prejudice that results from the difference . .
            . . In fact, as I see the discovery, these
            documents were made available, and it was gone
            through in some detail.

(JA 1279).    We review that decision for abuse of discretion.

     Although RCSH continues on appeal to assert that there was a

difference between the initial disclosure and the sum proved at

trial, it does not contend that the district court erred in finding

that the greater sum was disclosed in discovery and “gone through

in some detail.”12         The mere fact that the damage claim was

increased    after   the   initial   disclosure   does   not   operate    to

foreclose proof of the greater amount where, as the district court

held, the greater amount was the subject of discovery.            Indeed,

Rule 26(a)(1) contemplates that the initial disclosure will be



     12
       The higher sum also appeared in TCP’s proposed findings of
fact and conclusions of law filed on the Friday before trial.
That, however, was not a basis for the district court’s finding
respecting supplemental disclosure on TCP’s damages.

                                     23
based on information available at the time of disclosure.     And,

Rule 26(e) requires that initial disclosures be supplemented.

Considering this record, the district court’s findings respecting

supplemental disclosure, and the provisions of Rule 26(a)(1) and

Rule 26(e), we find no abuse of discretion in the district court’s

decision to allow proof of the larger damage sum.

     C.   Sufficiency of Proof: Causation

     RCSH contends that there was insufficient proof that the

breach of the Lease was the proximate cause of the damages claimed

by TCP.   Findings of proximate cause, usually described as mixed

questions of law and fact, are to be reviewed for clear error

pursuant to Fed. R. Civ. P. 52(a).    Exxon Co., U.S.A. v. Sofec,

Inc., 830, 840-41 (1996); Cohen v. Boxberger, 544 F.2d 701, 704

(4th Cir. 1976).13

     The district court’s findings on causation were articulated in

great detail (JA 1255-58; 1263-66).      Measuring those findings


     13
       Most of our sister circuits adhere to this rule. Childress
& Davis, Federal Standards of Review, § 2.28 (3d ed. 1999); Wright
& Miller, Federal Practices and Procedure Civil, § 2589 (1995).
One treatise points out that some of our decisions between 1966 and
1983 appear to have departed from it (and employed a freely
reviewable standard), Wright & Miller, Federal Practice and
Procedure Civil, § 2589 (1995), but that we returned to it in 1983.
Id.; Bonds v. Mortensen, 717 F.2d 123, 125 (4th Cir. 1983).
Whatever may be said of this history, the Supreme Court, in 1996,
seems to have settled the matter in favor of application of the
clearly erroneous standard to the review of findings of proximate
cause.   Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41
(1996) (“issues of proximate causation and superseding cause
involve application of law to fact, which is left to the factfinder
subject to limited review.”).

                                24
against the record as a whole, we find no error in the district

court’s finding that the breach of the Lease obligation to maintain

and repair the drain lines proximately caused the loss for which

TCP sought redress in its counterclaim.

     D.    Sufficiency of Proof: Damages

     There was fulsome proof that the damages were incurred in the

amounts   claimed   and   that   they   were   of   the   sort   that   were

compensable for the breach of the Lease.            The challenge to the

sufficiency of the proof made by RCSH is that the witnesses who

were offered to prove TCP’s damages were not from TCP, but from its

property manager.    Thus, says RCSH, there was no proof that TCP

actually paid the bills that were admitted to support its damage

claim.    The sufficiency of proof of damages is a fact issue which

we review for clear error.14     Having done that and considering the

record as a whole, we are satisfied that the district court did not

err in finding that the proof was sufficient to support the award

of damages in the amount claimed.



                                   V.

     RCSH argues that the district court erred in striking its

demand for jury trial.      This issue comes to us as a request to

direct a jury trial on remand.      Because of the disposition of the



     14
       Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1976); Childress
& Davis, Federal Standards of Review, § 2.22 (3d ed. 1999).

                                   25
foregoing issues, there will be no remand.             And, it is unclear from

RCSH’s brief whether it even asserts error in the decision to

strike the jury demand as to TCP’s counterclaim.15                   Assuming,

however, that RCSH is pressing that issue, we will address it.

     In its complaint, RCSH asked for trial by jury.               Neither the

answer nor the counterclaim contained any such request nor did the

reply     to    the   counterclaim.        At   the     pretrial   conference,

approximately five weeks before the commencement of trial, the case

for set for a jury trial.       On July 25, 2002, seven days after the

pretrial conference, TCP moved to strike RCSH’s jury demand,

asserting as the ground therefor, the terms of Section 47 of the

Lease which provides that:

               landlord and Tenant hereby expressly waive
               trial by jury in any action, proceeding or
               counterclaim brought by either of them against
               the other, on any matter whatsoever arising
               out or in any way connected this Lease, their
               relationship as landlord and Tenant, Tenant’s
               use and occupancy of the Demised Premises
               and/or any claim of any injury or damage.

The district court held that the waiver of jury trial meant

precisely what it said and enforced it.               We see no error in that

decision.




     15
       In its opening brief, RCSH states: “[t]hus, on remand, this
Court should direct that in at least the further proceedings as to
[naming all defendants other than TCP], RCSH is entitled to a jury
trial.” The issue is not addressed in RCSH’s reply brief.

                                      26
                              VI.

     For the foregoing reasons, the judgment of the district court

granting summary judgment on the claims of RCSH is affirmed, and

the judgment of the district court awarding damages to TCP in the

amount of $110,372.14 is affirmed.

                                                         AFFIRMED




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