                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             8
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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