                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-2394


CRAIG SANFORD; MARY JO SANFORD,

                Plaintiffs - Appellees,

          v.

JAMES F. SMITH, JR., a/k/a Jamie Smith,

                Defendant – Appellant,

          and

SCG INTERNATIONAL, LLC,

                Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:10-cv-00940-GBL-IDD)


Submitted:   November 6, 2012              Decided:   November 27, 2012


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James F. Smith, Jr., Appellant Pro Se. John Chapman Petersen,
Jason Frank Zellman, SUROVELL ISAACS PETERSEN & LEVY, PLC,
Fairfax, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          James F. Smith, Jr. appeals the district court’s order

entering final judgment following a jury’s conclusion that he

defrauded Craig and Mary Jo Sanford of $9.5 million.                 We have

reviewed the record and affirm the district court’s judgment.

          Proceeding     pro    se    on    appeal,    Smith   restates    the

arguments made by his lawyers in the district court, raising a

single issue: namely, whether the district court, in denying his

renewed motion for judgment as a matter of law under Fed. R.

Civ. P. 50(b), improperly permitted the Sanfords to prevail at

trial on a theory of fraud that was different than the theory of

fraud that they had alleged in their amended complaint.                    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

affirming the denial of the motion unless the jury lacked a

legally sufficient evidentiary basis for its verdict.               Gregg v.

Ham, 678 F.3d 333, 341 (4th Cir. 2012).

          Our review of the record convinces us that Smith’s

assertions    are   without   merit   for   the   simple   reason   that   the

evidence at trial proved a theory of fraud that was adequately

pled in the Sanfords’ amended complaint.              Because the Sanfords’

fraud claims were controlled by Virginia law, they were required

to plead — and, at trial, to establish by clear and convincing

evidence — that (1) Smith intentionally and knowingly (2) made a

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false representation (3) of material fact (4) with the intent to

mislead them, and that (5) they relied on the misrepresentation,

(6) suffering damage as a result.                       Bank of Montreal v. Signet

Bank, 193 F.3d 818, 826–27 (4th Cir. 1999); Cohn v. Knowledge

Connections, Inc., 585 S.E.2d 578, 581 (Va. 2003).                             Federal Rule

of Civil Procedure 9(b) requires plaintiffs alleging fraud to

plead “with particularity the circumstances constituting fraud.”

Fed. R. Civ. P. 9(b); see also Harrison v. Westinghouse Savannah

River Co., 176 F.3d 776, 784 (4th Cir. 1999).

            In       cases    in   which       a      fraud    count     incorporates         by

reference      all     of    the   prior       allegations       in     a     complaint,      we

examine   the        entire    complaint         to     determine       if    the     pleading

requirements of Rule 9(b) are satisfied.                        Adkins v. Crown Auto,

Inc., 488 F.3d 225, 232 (4th Cir. 2007).                        It is apparent on any

fair reading of the amended complaint as a whole that it alleged

— with the particularity requisite under Rule 9(b) — that Smith

made   multiple        promises      to    the     Sanfords      of    repayment       and    of

safeguarding their funds that he never intended to keep.                                     See

Colonial Ford Truck Sales, Inc. v. Schneider, 325 S.E.2d 91, 94

(Va.   1985)     (in    Virginia,         where     a   party    “makes        [a]    promise,

intending not to perform, his promise is a misrepresentation of

present fact, and if made to induce the promisee to act to his

detriment,       is     actionable        as       an   actual        fraud.”)       (emphasis

omitted);    see      also    T.G.    Slater        &   Son,    Inc.     v.    Donald    P.    &

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Patricia   A.    Brennan     LLC,    385   F.3d       836,    844    (4th      Cir.   2004)

(same).

            In our assessment, the Sanfords presented more than

enough evidence at trial to support the jury’s determination

that, at the time Smith promised to keep the Sanfords’ funds

safe and to repay them, he intended not to keep his promise.

The evidence adduced at trial was therefore sufficient to prove

the   theory    of   fraud    that   was       pled    in    the    Sanfords’     amended

complaint.

            Accordingly, we affirm the judgment of the district

court.     We dispense 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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