UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FIRST AMERICAN BANK OF VIRGINIA,
Plaintiff-Appellee,

v.

CASSANDRA WILLIAMS, a/k/a
Cassandra G. Nelson, t/a Cultural
Associates,
Defendant-Appellant,

and
                                                               No. 94-1744
GLENDA BARNUM, Individually, d/b/a
MAPS Marketing Enterprise;
MELISSA PREJEAN, Individually, d/b/a
MAPS Marketing Enterprise;
DOROTHY CARRADINE, Individually,
d/b/a MAPS Marketing Enterprise;
MAPS MARKETING ENTERPRISE, a/k/a
MAP Enterprises, Incorporated,
Third Party Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-89-1341-B)

Argued: March 8, 1995

Decided: March 7, 1997

Before WILKINSON, Chief Judge, and WIDENER and
MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard L. Donald, Jr., Temple Hills, Maryland, for
Appellant. Daniel Stephen Fiore, II, Arlington, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This case arises out of a Bankcard Merchant Agreement between
First American Bank of Virginia and Cassandra Williams, doing busi-
ness as Cultural Associates. Miss Williams appeals the district court's
summary judgment dismissal of her counterclaim for defamation and
the district court's order reducing a jury award in her favor from
$26,000 to $1,530. Upon this third appeal in this case, we are of opin-
ion that the district court's orders are correct, and we therefore affirm
its judgment.

Miss Williams was sole proprietor of Cultural Associates, a busi-
ness primarily engaged in the sale of artwork created by Miss Wil-
liams' husband. On September 22, 1986, Miss Williams and First
American renewed a Bankcard Merchant Agreement. The agreement
provided that First American would maintain a bankcard merchant
account into which Miss Williams would deposit credit card slips rep-
resenting purchases by cardholders. First American would then credit
Miss Williams' account for the amount of the submitted drafts and
collect the amounts of those drafts from the bank which had issued
the credit card used in a given transaction. First American was also
entitled to assess Miss Williams a percentage of the value of each
transaction as a fee for processing the slips.

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In April 1988, Miss Williams entered into a contract with Maps
Marketing Enterprises, Inc. Maps Marketing sold vacation and travel
discount club memberships to customers solicited over the telephone.
Miss Williams agreed to submit to First American Maps Marketing's
credit card slips reflecting orders Maps Marketing had obtained
through telemarketing. Upon receiving provisional credit from First
American, Miss Williams would pay to Maps Marketing the amount
of the slips less a $30 charge per transaction.

Some of the Maps Marketing slips submitted by Miss Williams to
First American were subsequently disputed by cardholders. The insti-
tutions which had issued the credit cards involved back-charged the
disputed amounts to First American. First American claims that over
$65,000 of Maps Marketing transactions have been back-charged to
it. On May 5, 1988, after its discovery of Miss Williams' relationship
with Maps Marketing, First American refused to credit Miss Williams
for $25,015.20 in credit card slips, most of which represented Maps
Marketing transactions. On May 6, First American terminated the
merchant agreement and closed the merchant account. First American
apparently later processed those May 5, 1988 sales drafts which had
resulted from Miss Williams' own business.

First American filed suit against Miss Williams in May 1989,
asserting claims against her for breach of contract, breach of warran-
ties, restitution, and fraud and deceit. Miss Williams filed counter-
claims against First American alleging breach of contract, defamation,
intentional interference with contractual relations, accounting, and
conversion.

First American moved for summary judgment against Miss Wil-
liams on all counterclaims. The district court granted summary judg-
ment on the conversion counterclaim on June 11, 1990, and the
defamation counterclaim on November 13, 1990. Miss Williams
appealed the grant of summary judgment on her defamation claim to
this court, which appeal was dismissed as interlocutory on December
3, 1991. Summary judgment was denied on the remaining counter-
claims, and the case proceeded to jury trial. The jury awarded First
American $22,914.71 on breach of contract and restitution. The jury
found for Miss Williams on First American's breach of warranty and
fraud and deceit claims. Miss Williams was awarded $6,000 on her

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counterclaims of breach of contract and accounting, and $20,000 on
her intentional interference with contractual relations counterclaim,
upon which judgment was entered.

First American moved under Fed. R. Civ. P. 59(e) to have the judg-
ment altered, and the district court granted the motion. Miss Wil-
liams' award was reduced from $26,000 to $1,530, and judgment was
entered December 3, 1992. Miss Williams appealed the judgment to
this court. After oral argument, this court vacated the judgment and
remanded the case to the district court without an opinion on the mer-
its. This court noted that the briefs and arguments were incomprehen-
sible, the appendix deficient, and the record inadequate for just
review.

On remand, the district court filed memorandum opinions on its
grant of summary judgment on Miss Williams' counterclaim for defa-
mation and its reduction of Miss Williams' award from $26,000 to
$1,530. The district court then entered judgment in the same amount
as entered on December 3, 1992. Miss Williams has again appealed.

Miss Williams raises two points on appeal. First, she argues that
the district court erred in granting summary judgment in favor of First
American on her counterclaim for defamation. We review the district
court's grant of summary judgment on the defamation counterclaim
de novo. Holland v. Rimmer, 25 F.3d 1251, 1254 (4th Cir. 1994).
Miss Williams alleged that First American informed its own employ-
ees, the FBI, and customers of Maps Marketing that Cultural Asso-
ciates was involved in fraudulent or unlawful activities. Miss
Williams further alleged that the statements were false and damaged
her reputation.

The parties have agreed that the laws of Virginia govern this dis-
pute, and both rely on Gazette, Inc. v. Harris , 325 S.E.2d 713 (Va.),
cert. denied, 472 U.S. 1032 (1985). In that case, the Court set out the
elements of a claim such as this for defamation when brought by a
private individual. To recover, plaintiff must show by a preponder-
ance of the evidence that there was publication of a false statement,
and that the defendant either knew it to be false, or believing it to be
true, lacked reasonable grounds for such belief, or acted negligently
in failing to ascertain the facts on which the publication was based.

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325 S.E.2d at 724-25. The court noted that in such cases, the burden
is on the plaintiff to prove the falsity of the publication. 325 S.E.2d
at 725.

In support of her counterclaim, Miss Williams submitted affidavits
and documentary evidence. Even if some of the statements contained
in the supporting evidence could be construed as defamatory, we
agree with the district court that Miss Williams did not offer sufficient
evidence to withstand First American's motion for summary judg-
ment. "The moving party is `entitled to judgment as a matter of law'
because the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has the
burden of proof." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)). The district court correctly pointed
out that Miss Williams did not offer evidence of the falsity of certain
of the allegedly defamatory statements, an element of defamation
under Virginia law. As to the other statements which might have con-
tained defamatory matter, the district court correctly found that there
had been no publication. We therefore affirm the grant of summary
judgment to First American on Miss Williams' counterclaim for defa-
mation.

Second, Miss Williams contends that the district court erred in
reducing the jury verdict in her favor from $26,000 to $1,530. A
motion to alter or amend a judgment may be granted if it accommo-
dates an intervening change in controlling law, accounts for new evi-
dence not available at trial, or corrects a clear error of law or prevents
manifest injustice. Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th
Cir. 1993).

The jury in this case returned a verdict in favor of Miss Williams
on her counterclaims for breach of contract and intentional interfer-
ence with contractual relations in the total amount of $26,000. First
American moved to have the award reduced, claiming that under the
pretrial order, Miss Williams was limited to an award for loss of prof-
its and that the evidence at trial established that Miss Williams would
only have earned $1,530. After a hearing on the motion, the court
granted First American's motion and reduced the jury award to
$1,530. Miss Williams argues that she is entitled to the full amount
of the jury award.

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The pretrial order in this case limited Miss Williams' damages for
loss of profits from March 1988 to May 5, 1988 for both the breach
of contract claim and the intentional interference claim, and she is
bound by the pretrial order. See Fed. R. Civ. P. 16(e).

We are of opinion that the reasoning of the district court's opinion
is correct. Miss Williams only introduced evidence that First Ameri-
can refused to credit her for the May 5, 1988 deposit of $25,015.20
during the relevant time period. The evidence established that the
$25,015.20 represented approximately 51 Maps Marketing transac-
tions with a profit of $30 each. Because Miss Williams did not pres-
ent any other evidence of loss of profits, she was entitled to only
$1,530. The jury award of $26,000 was not supported by the record,
which is a clear error of law. See Hutchinson , 994 F.2d at 1081.

The judgment of the district court is accordingly

AFFIRMED.

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