UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

E. HAROLD KEITH; JOYCE G. KEITH,
Plaintiffs-Appellants,

v.

THE TOWN OF KNIGHTDALE, NORTH
CAROLINA; WILLIAM A. WILDER,
Individually and in his official
capacity as Mayor of Knightdale; THE
KNIGHTDALE TOWN COUNCIL; JAMES
JOSEPH BRYAN; GREG C. JONES;
VERNON CHARLES BULLOCK; ANN M.
MAY; REBA PENDLETON, Individually
and in their official capacities as
members of the Knightdale Town
Council; CARL A. MOORE, Individually
and in his official capacity as Mayor
                                         No. 96-1981
of Knightdale and former member of
the Knightdale Town Council; DENNIS
GABRIEL, Individually and in his
official capacity as Knightdale Town
Manager; GARY L. MCCONKEY,
Individually and in his official
capacity as Knightdale Town
Manager; PAUL S. PECKENS,
Individually and in his official
capacity as Knightdale Town Planner;
STEPHEN G. SPOSATO, Individually and
in his official capacity as Knightdale
Town Planner,
Defendants-Appellees,

and
ELAINE HOLMQUIST, Individually and in
her official capacity as Knightdale
Town Clerk; HOLMES P. HARDEN, in
his representative capacity as Trustee
in Bankruptcy for KVK Development;
CARRINGTON DEVELOPMENT ASSOCIATES;
K&K DEVELOPMENT CORPORATION,
Defendants.

E. HAROLD KEITH; JOYCE G. KEITH,
Plaintiffs-Appellees,

v.

THE TOWN OF KNIGHTDALE, NORTH
CAROLINA; WILLIAM A. WILDER,
Individually and in his official
capacity as Mayor of Knightdale; THE
KNIGHTDALE TOWN COUNCIL; JAMES
JOSEPH BRYAN; GREG C. JONES;
VERNON CHARLES BULLOCK; ANN M.
MAY; REBA PENDLETON, Individually
                                         No. 96-1999
and in their official capacities as
members of the Knightdale Town
Council; CARL A. MOORE, Individually
and in his official capacity as Mayor
of Knightdale and former member of
the Knightdale Town Council; DENNIS
GABRIEL, Individually and in his
official capacity as Knightdale Town
Mayor; GARY L. MCCONKEY,
Individually and in his official
capacity as Knightdale Town
Manager; PAUL S. PECKENS,

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Individually and in his official
capacity as Knightdale Town Planner;
STEPHEN G. SPOSATO, Individually and
in his official capacity as Knightdale
Town Planner,
Defendants-Appellants,

and
ELAINE HOLMQUIST, Individually and in
her official capacity as Knightdale
Town Clerk; HOLMES P. HARDEN, in
his representative capacity as Trustee
in Bankruptcy for KVK Development;
CARRINGTON DEVELOPMENT ASSOCIATES;
K&K DEVELOPMENT CORPORATION,
Defendants.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Wallace Wade Dixon, Magistrate Judge.
(CA-93-708-5-DI)

Argued: December 3, 1997

Decided: March 16, 1998

Before MURNAGHAN, ERVIN, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marvin Schiller, Susan Sawin McFarlane, Raleigh, North
Carolina, for Appellants. Michael Bannon Brough, BROUGH &
ASSOCIATES, Chapel Hill, North Carolina, for Appellees.

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

_________________________________________________________________

OPINION

PER CURIAM:

E. Harold Keith ("Keith"), a developer of commercial and residen-
tial real estate in and around the town of Knightdale, North Carolina,
filed suit against the town, the Knightdale town council, and numer-
ous town councilpersons and officials individually and in their official
capacities. Goaded by a history of acrimonious disputes, Keith
alleged violations of his first amendment and due process rights, as
well as state constitutional and tort claims. With one exception,
Keith's claims were dismissed or decided favorably to the appellees
on summary judgment. Keith was permitted to proceed to trial on his
claim that the appellees retaliated against him for conduct protected
by the First Amendment.

The principal issue raised in the instant appeal is whether the dis-
trict court erroneously determined, following a jury deadlock and a
mistrial, that the evidence adduced at trial was insufficient as a matter
of law to prove that the appellees' adverse actions were caused by
Keith's first amendment activities. We also consider Keith's chal-
lenge to the district court's grant of summary judgment to the appel-
lees on his federal due process claim. As to the remaining issues
raised by Keith and not addressed by our disposition of the free
speech and due process claims, we rely on the opinion of the court
below. On all issues we hold in favor of the appellees.

The appellees have cross-appealed, arguing that Keith failed to
establish the existence of a continuing violation and, therefore, his
constitutional claims are barred by the statute of limitations. We do
not reach the appellees' contention, for it simply presents an alterna-
tive ground on which to affirm the judgment of the court below with
respect to Keith's free speech and due process claims.

I

Initially, Keith has maintained that the appellees obstructed the
completion of six development projects in retaliation for conduct pro-

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tected by the First Amendment. We hold, however, that the evidence
does not permit a conclusion that Keith's protected activities caused
the appellees' adverse actions.

We review the district court's grant of the appellees' motion for
judgment as a matter of law de novo. Malone v. Microdyne Corp., 26
F.3d 471, 475 (4th Cir. 1994). The failure of a nonmoving party to
adduce substantial evidence in support of an essential element of a
claim on which he has the burden of proof entitles the movant to
judgment as a matter of law. See Singer v. Dugan , 45 F.3d 823, 827
(4th Cir. 1995); Mattison v. Dallas Carrier Corp., 947 F.2d 95, 100
(4th Cir. 1991).

Well-established principles of causation guide our analysis. Under
the standard established in Mt. Healthy City Bd. of Educ. v. Doyle,
429 U.S. 274 (1976), a claimant must demonstrate that conduct pro-
tected by the First Amendment "was a `substantial factor'--or, to put
it in other words, a `motivating factor'" in the town's adverse deci-
sions. Id. at 287. The burden then shifts to the defendants to prove,
by a preponderance of the evidence, that the allegedly retaliatory
actions would have been taken in the absence of the protected con-
duct. Id.

Notwithstanding the factual nature of the inquiry into motive, the
question may not be determined by the jury if the evidence fails to
show a reasonable probability of improper motive. See Lovelace v.
Sherwin-Williams Co., 681 F.2d 230, 241-42 (4th Cir. 1982). We
have explained that "if the inference sought to be drawn lacks sub-
stantial probability, any attempted resolution of the question may well
lie within the area of surmise and conjecture, so that the issue should
not be submitted for jury consideration." Id. at 242 (internal quotation
marks and citation omitted). The voluminous testimony presented by
Keith falls short of the required threshold.

The evidence plainly demonstrated a pattern of unfavorable treat-
ment by the appellees, described the puerile delight of town council-
persons in Keith's misfortunes, and established the intent of various
council members to drive Keith out of business. Keith also showed
that he engaged in conduct protected by the First Amendment. Keith
vocally opposed and lobbied against legislation supported by the

                    5
appellees, regularly spoke out at town meetings, communicated his
criticisms to the press, questioned council decisions, and videotaped
council meetings. Furthermore, there was evidence that Keith's first
amendment conduct may have been a source of some consternation
or offense to town officials and councilpersons.

Keith has been wholly unable, however, to forge even a tenuous
link between his first amendment activities and adverse actions taken
with respect to Keith's development projects. James Varner
("Varner"), former town manager and Keith's principal witness, was
asked repeatedly on cross-examination if he had ever heard any coun-
cilperson make a comment that would connect the adverse statements
about Keith and Keith's first amendment activities. Varner consis-
tently responded in the negative.

Keith would have us infer causation from the bare juxtaposition of
his protected conduct, appellees' expressed antagonism, and the
town's adverse actions. Viewed together, however, the elements
described by Keith establish no more than a possibility of unconstitu-
tional retaliation. Because it is impossible to"choos[e] rationally
between mere possibilities," Keith's claim fails as a matter of law.
Lovelace, 681 F.2d at 242.

Even if we were to conclude that Keith had established that the
exercise of his first amendment rights was a substantial factor in
appellees' decisions, the appellees unequivocally demonstrated that
the same actions would have been taken in the absence of the pro-
tected conduct.

The appellees did not deny that Keith received less favorable treat-
ment than other developers. According to town employees and offi-
cials, however, the disparate treatment was motivated by Keith's
record of broken promises and by his belligerent and intractable man-
ner. The evidence supported the appellees' contention that Keith regu-
larly reneged on commitments unless the town had an effective
sanction available to ensure his performance.

Testimony presented by the appellees also revealed that Keith was
an extraordinarily difficult individual with whom to do business. For-
mer Mayor William Wilder testified that Keith was inflexible and

                    6
routinely threatened the town with lawsuits. Other town employees
and officials testified that Keith "screamed" and was verbally abusive
during confrontational encounters. Paul Peckens, a former town plan-
ner, asserted that an intimidating encounter with Keith was one of the
factors that led him to resign from his position after one year. Scott
Poole, an employee with Carolina Power & Light, described an inci-
dent in which Keith pointed a handgun directly at Poole's face during
an irate exchange.

In short, the appellees produced substantial uncontradicted evi-
dence that the town and council's efforts to impede Keith's develop-
ment projects were the result of longstanding and personal
antagonism toward Keith. To the extent a vendetta against Keith
existed, it was prompted by Keith's pugnacious nature, a history of
irate disagreements, and memories of unfulfilled obligations.

Therefore, we conclude that Keith failed to demonstrate that the
appellees' actions were motivated by Keith's exercise of his first
amendment rights. Because Keith has failed to adduce substantial evi-
dence on an essential element of his claim, we affirm the district
court's entry of judgment as a matter of law in the appellees' favor.

II

Next, Keith has argued that the appellees violated the Due Process
Clause by arbitrarily refusing to issue permits and certificates of occu-
pancy with respect to Keith's development projects. We conclude that
Keith has no standing to pursue his due process claim.

Keith's development activities were undertaken through three busi-
ness entities: KVK Development Associates and Carrington Develop-
ment Associates, partnerships engaged in commercial development;
and K&K Development Corporation, a corporation engaged in resi-
dential development. It is undisputed that applications for the disputed
approvals were made in the name of and denied to the business enti-
ties, and not by or to Keith individually.

Keith shared ownership and control of the three business entities
with Henry H. Knight. The partnership agreements and corporate

                     7
bylaws require that all partners and shareholders give their consent to
any action brought on the behalf of or by the business entities, prior
to the filing of such action. Consent was refused.

Nevertheless, Keith has persisted in arguing that his right to due
process was violated by the town's withholding of approvals. Keith's
position, however, transgresses the "fundamental rule . . . that a share-
holder . . . does not have standing to assert claims alleging wrongs to
the corporation . . ., even as to wrongs or injuries to the corporation
which result in depreciation or destruction of the value of a sharehold-
er's stock." Smith Setzer v. S.C. Procurement Panel, 20 F.3d 1311,
1317 (4th Cir. 1994) (internal quotation marks, alterations and cita-
tions omitted). A similar rule precludes suit by a partner for injuries
suffered by the partnerships for which the entities themselves could
recover. See Creek v. Village of Westhaven, 80 F.3d 186, 191 (7th
Cir.), cert. denied sub nom. Village of Westhaven v. Creek, 117 S. Ct.
180 (1996) (holding that "a partner may not sue individually to
recover damages for an injury to the partnership"); Orthopedica &
Sports Injury Clinic v. Wang, 922 F.2d 220, 227 (5th Cir. 1991)
(holding that partners had no standing to sue when they alleged no
damage to property for which the partnership could not recover); see
also N.C. Gen. Stat. § 1-69.1 (1996) (stating that the partnership
entity is the proper party to maintain an action for damage to partner-
ship property); Threadgill v. Faust, 195 S.E. 798 (N.C. 1938) (hold-
ing that all partners are necessary parties and the action must be
brought in the name of the partnership).

Keith has suffered no injury independent of his status as a share-
holder or partner in the business entities, and he may not evade the
consequences of the entities' refusal to join in the instant suit by
claiming the injuries suffered directly by those entities as his own. We
therefore affirm the district court's entry of summary judgment in
favor of the appellees.

CONCLUSION

Accordingly, the entry of judgment in favor of the appellees on all
claims is hereby

AFFIRMED.

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