                              ___________

                              No. 96-2788
                              ___________

Corning Products, Inc.,         *
                                *
          Plaintiff - Appellant,*
                                * Appeal from the United States
     v.                         * District Court for the
                                * Eastern District of Missouri
Eton Systems, Inc.,             *
                                *       [UNPUBLISHED]
          Defendant - Appellee, *
                                *
Michael Gray,                   *
                                *
          Defendant.            *
                           ___________

                   Submitted:    February 14, 1997

                        Filed: March 11, 1997
                             ___________

Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF,1 District
     Judge.
                          ___________

KOPF, District Judge.


     Corning Products, Inc. (Corning) brought this action against
Eton Systems, Inc. (Eton) and its employee Michael Gray (Gray).
Corning claimed the defendants made a video tape of a product that
Eton had sold to Corning and then showed the video tape to another
corporation, Hickory Springs, thus violating alleged written and
oral agreements.    Corning     claimed   it   had   “lost   business”   it
expected to obtain from Hickory Springs because of the improper
disclosure.


     1
      The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, sitting by designation.
     Applying   Missouri     law,      the   district   court2     found   the
undisputed material facts established that Corning could not make
out a prima facie case regarding its claims of promissory estoppel
(Count II), fraud by affirmative misrepresentation (Count III),
fraud by promise without a present intent to perform (Count IV),
tortious interference with a business expectancy (Count V), and
negligent misrepresentation (Count VI).        There were two reasons for
this ruling.


     With   regard   to   Count   V,   the   court   found   the   undisputed
material facts would not allow a reasonable jury to conclude that
Corning had a valid business expectancy with Hickory Springs.               In
so doing, the court struck a Corning affidavit because of various
irregularities, including the absence of an original signature.
The court later assumed the affidavit had not been stricken, and
concluded the document failed to set forth any facts “detailing an
alleged business deal between plaintiff and Hickory Springs.”              With
regard to Counts II, III, IV, and VI, after considering the
stricken affidavit, the court found the undisputed material facts
would not allow a reasonable jury to find that Corning suffered the
particular damages (lost profits) it sought.             Consequently, the
district court granted summary judgment in favor of Eton and Gray
as to Counts II through VI.


     Rather than proceed to trial on the surviving breach-of-
contract claim (Count I), with respect to which Corning would have
been limited to nominal damages, the company dismissed the claim.
Corning then appealed the grant of summary judgment in favor of
Eton regarding Counts II through VI.




       2
       The Honorable Stephen N. Limbaugh, Senior United States
District Judge for the Eastern District of Missouri.
     Corning asserts the district court erred in two ways.   First,
although the issue was not presented to the district court in




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either the company’s amended complaint or its brief opposing the
motion for summary judgment, Corning argues the court erred when it
failed to consider a misappropriation-of-trade-secrets theory of
recovery.     Second, while admitting the irregularities, Corning
argues the district court erred when it struck the affidavit
because the court did not give Corning an opportunity to correct
the problems.


     Having   reviewed   the   parties’   briefs   and   submissions,   we
conclude that the district court’s findings of fact are not clearly
erroneous and that no error of law appears.              Accordingly, we
affirm.   See 8th Cir. R. 47B.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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