                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-1279


BCD LLC; ROSEN    CAMPUS   I    LLC;    CR   MERC   LLC;   ROSEN   WT
MANAGEMENT LLC,

               Plaintiffs - Appellants,

         v.

BMW MANUFACTURING COMPANY        LLC,   formerly     known   as    BMW
Manufacturing Corp.,

               Defendant – Appellee,

         and

SOUTH CAROLINA DEPARTMENT OF COMMERCE; DWIGHT F. DRAKE;
NELSON MULLINS RILEY & SCARBOROUGH LLP; CLEMSON UNIVERSITY;
CLEMSON UNIVERSITY FOUNDATION; CLEMSON UNIVERSITY REAL
ESTATE FOUNDATION; AMREC; THE FURMAN COMPANY; STEPHEN P.
NAVARRO,

               Parties-in-Interest.



                               No. 08-1448


BCD LLC; ROSEN    CAMPUS   I    LLC;    CR   MERC   LLC;   ROSEN   WT
MANAGEMENT LLC,

               Plaintiffs - Appellants,

         v.

BMW MANUFACTURING COMPANY        LLC,   formerly     known   as    BMW
Manufacturing Corp.,

               Defendant – Appellee,
           and

SOUTH CAROLINA DEPARTMENT OF COMMERCE; DWIGHT F. DRAKE;
NELSON MULLINS RILEY & SCARBOROUGH LLP; CLEMSON UNIVERSITY;
CLEMSON UNIVERSITY FOUNDATION; CLEMSON UNIVERSITY REAL
ESTATE FOUNDATION; AMREC; THE FURMAN COMPANY; STEPHEN P.
NAVARRO,

                 Parties-in-Interest.



Appeals from the United States District Court for the District
of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:05-cv-02152-GRA)


Argued:   September 22, 2009            Decided:   January 8, 2010


Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Motz and Judge King joined.


ARGUED: James Robinson Gilreath, GILREATH LAW FIRM, Greenville,
South   Carolina,  for   Appellants.     Henry   Donald   Sellers,
HAYNSWORTH, SINKLER & BOYD, PA, Greenville, South Carolina, for
Appellee.    ON BRIEF: Charles E. Carpenter, Jr., Carmen V.
Ganjehsani, CARPENTER APPEALS & TRIAL SUPPORT, LLC, Columbia,
South Carolina; William M. Hogan, GILREATH LAW FIRM, Greenville,
South Carolina; Charles W. Whetstone, Jr., Cheryl F. Perkins,
WHETSTONE MYERS PERKINS & YOUNG, LLC, Columbia, South Carolina;
V. Laniel Chapman, Bruce A. Byrholdt, CHAPMAN BYRHOLDT & YON,
Anderson, South Carolina, for Appellants. J. W. Matthews, III,
Christopher   B.  Major,   HAYNSWORTH,   SINKLER   &   BOYD,   PA,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                  2
DAVIS, District Judge:

      Clifford Rosen, a developer serving as the principal behind

the entities of BCD LLC, Rosen Campus I LLC, CR-MERC LLC, and

Rosen-WT    Management      LLC,    appeals           from   the    grant   of    summary

judgment against him on his claims of tortious interference with

contract, intentional interference with prospective contractual

relations, and civil conspiracy.                  The district court disposed of

the case on alternative grounds, holding that Rosen’s claims

were barred under the Noerr-Pennington doctrine and that summary

judgment was appropriate because there were no genuine issues of

material fact.

      It is well-established under the doctrine of constitutional

avoidance that a court should avoid deciding a constitutional

question    when   it    can    dispose          of   a   case     on   another    basis.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring).             Finding that Rosen’s claims can be

decided on non-constitutional grounds of state contractual law,

it   is   thus   not    necessary       to    reach       the    question   of    whether

Rosen’s claims were barred under the Noerr-Pennington doctrine.

For the reasons that follow, we affirm the grant of summary

judgment.

                                             I.

      This action arose out of a dispute related to the early

developmental      stages      of   a    project          that     culminated     in   the

                                             3
construction         of       Clemson      University’s       (“Clemson”)       Carroll       A.

Campbell, Jr. Graduate Engineering Center (“GEC”).                                   In 2001,

Appellee BMW (“BMW”) and Clemson, a public university located in

South    Carolina,         explored            possible   educational     initiatives         on

which    they      could        collaborate.             Clemson    raised    the    idea     of

developing a wind tunnel that would cater to the racing industry

and made a formal presentation of the idea to BMW executives.

BMW   indicated          that    it     was      not   interested    in   funding      a    wind

tunnel,      but    proposed          an   alternative       plan    of   partnering        with

Clemson to establish the GEC as part of Clemson’s International

Center for Automotive Research (“CU-ICAR”).

        Clemson similarly approached Rosen about the possibility of

developing a motorsports facility incorporating a wind tunnel,

and Rosen expressed interest in the idea.                           For the purposes of

negotiating an agreement, Rosen thus formed CR-MERC LLC (“CR-

MERC”).            The    Clemson          University        Foundation       (“CUF”),       the

fundraising arm of Clemson, formed a subsidiary called AMREC LLC

(“AMREC”) for the same purpose.

        On   April       4,     2002,      Rosen       (through    CR-MERC)    and     Clemson

(through      AMREC)          signed       a     nine-page    “agreement”       (the       “2002

Agreement”) to lay the foundation for the proposed development

of the facility.              The 2002 Agreement indicated that the laws of

the state of South Carolina would govern all issues arising out

of the agreement.              Under its terms, the facility and surrounding

                                                   4
campus would consist of a combination of parcels, some donated

by Rosen and the remainder donated by AMREC.

     The    2002    Agreement,     however,      called      for   the      parties    to

reach further agreement on twelve subject areas, identified as

“Exhibits,” by May 1, 2002.             Pursuant to Paragraph 10, the 2002

Agreement thus remained terminable at will by either party if

the parties could not reach an agreement on all of the subject

areas.     Specifically, the provision stated that if the parties

failed “to agree to any of the Exhibits,” then “at any time

after May 1, 2002, either party may, upon ten (10) days notice

to the other party cancel this Agreement, whereupon the parties

shall be relieved of all obligations to each other.”                           J.A. 800

(emphasis in original). 1

          The    subject   areas   covered      by   the    Exhibits     encompassed

material aspects of the deal, including how the land would be

divided    and    developed.       At   a   drafting       session,     however,      the

parties    failed    to    reach   an   agreement      on    all   of    the    subject

areas.     In particular, the parties marked two Exhibits as “NOT

USED”:    “Exhibit    F,”    the   “Reciprocal       Easements        and    Operating

Agreement” and “Exhibit H,” the “Master Association Agreement.”




     1
       Citations to “J.A.” refer to the contents of the joint
appendix filed by the parties in this proceeding.




                                            5
The parties also did not sign “Exhibit G,” which would have

covered the allocation of parcels of land.

      Rosen’s attorneys thereafter commenced the drafting of a

revised “Amended and Restated Master Agreement” to incorporate

the   non-used   Exhibits     F     and    H   within        a    combined      agreement

entitled      the       “Declaration           of         Covenants,       Conditions,

Restrictions,    and    Easements”        (“CCR”).          The    parties,     however,

never executed either of these documents.

      Meanwhile,     during   the    summer         and    fall    of   2002,    BMW    and

Clemson     continued     their     negotiations            and      preparations        in

furtherance of the plan to construct the GEC.                           BMW identified

the GEC as one of the projects that could be supported pursuant

to the newly-enacted Bond Act, under which the State of South

Carolina set aside funds for qualifying infrastructure projects

that promoted economic development within the state.                            See S.C.

Code Ann. § 11-41-10 et. seq. (2002).                       On July 29, 2002, the

South     Carolina     Department     of       Commerce           (“SCDOC”)     formally

proposed incentives for BMW under the Bond Act, including $25

million earmarked for the development of the GEC.                             After the

formal announcement, BMW and Clemson drafted a “Memorandum of

Expectations” with respect to the GEC.

      Rosen began to urge Clemson and BMW to consider utilizing

property that he owned as the potential site for the GEC.                              BMW,

however, emphasized the need to distinguish the state-funded GEC

                                          6
from    the       privately-funded           wind       tunnel       in        which      Rosen     was

involved, and Clemson declined to commit itself to using Rosen’s

property.          Rosen, in turn, interpreted BMW’s criticism of the

wind    tunnel          project        as    a        reflection          of        the    company’s

dissatisfaction with its lack of control over the development of

the wind tunnel.               According to Rosen, this sentiment prompted

BMW to launch a series of efforts designed to kill his project.

In particular, he claims that BMW exerted pressure upon private,

governmental, and state-supported entities, including Clemson,

to cease negotiations with him.

       In    January          2003,    Rosen      sent    a     letter         to    Clemson       that

expressed         concerns       about      the       progress       of        the     wind     tunnel

project.          Clemson interpreted this letter as an indication that

Rosen       was    no     longer       committed         to    the    project,            but     Rosen

subsequently sent another letter reiterating his determination

to   construct          the    wind    tunnel.          Specifically            referencing         the

terminable-at-will              clause      of    the         2002   Agreement,            Clemson’s

President responded with a letter on March 12, 2003 notifying

Rosen   that        the    2002       Agreement       constituted         a     mere      letter     of

intent and that the wind tunnel deal was not final because all

of the Exhibits to the 2002 Agreement had not been completed.

       A couple weeks later, Clemson emailed Rosen a new proposed

deal structure with two alternatives entitled “Option A” and

“Option B.”             In April 2003, Rosen made a counterproposal to

                                                  7
Clemson.     Clemson   found   Rosen’s   counterproposal    unacceptable,

however.     At this time, Clemson determined that it needed to

consider a different site for the GEC and began to shift its

focus toward the acquisition of a parcel of land separate from

the property Rosen was acquiring – an option Clemson referred to

as “Option C.”     Rosen subsequently continued to seek amendments

to the old deal structure, but Clemson’s attorneys drafted a

letter on May 12, 2003 stating that, “[a]s there is currently no

agreement, nothing will be amended.”       J.A. 1791.

     Thereafter, Clemson and Rosen renewed negotiations under an

entirely different deal structure and executed the Real Estate

Purchase and Sale Agreement (the “2003 Agreement”) on October 6,

2003.     The 2003 Agreement provided for the sale of land for the

GEC and addressed all material subject areas, including those

areas     that   the   2002    Agreement   had     failed    to     address.

Furthermore, the 2003 Agreement provided that the 2002 Agreement

was “terminated for all purposes without any liabilities to any

of the parties[.]”     J.A. 690.

     Rosen now characterizes his execution of the 2003 Agreement

as a mere attempt to mitigate his damages and argues that he

lost valuable property rights under the new deal.           He thus filed

this action in federal district court.           BMW filed a motion for

summary    judgment,   which   the   district    court   granted.     Rosen

subsequently filed a timely appeal.

                                     8
       In this appeal, Rosen contests the district court’s grant

of summary judgment, arguing that BMW was the direct cause of

the unraveling of his project and that he is therefore entitled

to    recover    damages    for   lost    profits,        development       fees,   and

management fees.          We disagree.        In light of the fact that: (1)

the    parties    never    reached     agreement     on   all   of    the   essential

terms    of    the   alleged    2002   Agreement;     (2)    the     2003   Agreement

expressly terminated the 2002 Agreement for all purposes; and

(3) BMW at all times acted pursuant to its legitimate business

interests, we find that summary judgment was appropriate.



                                         II.

       We review a grant of summary judgment de novo on appeal,

applying the same standard as the trial court without deference

to the trial court.            Perini Corp. v. Perini Constr., Inc., 915

F.2d 121, 123 (4th Cir. 1990).                Summary judgment is appropriate

when the court, viewing the record as a whole and in the light

most favorable to the nonmoving party, determines that there

exists “no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”                         FED.

R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477

U.S.    242,     248-50   (1986);      Hill    v.   Lockheed    Martin      Logistics

Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc).                             A

genuine issue of material fact is raised only if a reasonable

                                          9
jury could return a verdict for the plaintiff on each element

necessary to its case.            Banca Cremi, S.A. v. Alex. Brown & Sons,

Inc., 132 F.3d 1017, 1027 (4th Cir. 1997).                         As the nonmoving

party below, Rosen had the ultimate burden of demonstrating a

genuine issue of material fact for trial.                    See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

      Although the court must draw all justifiable inferences in

favor of the nonmoving party, the nonmoving party must rely on

more than conclusory allegations, mere speculation, the building

of   one   inference      upon    another,      or   the    mere    existence     of   a

scintilla of evidence.            See Anderson, 477 U.S. at 252; Stone v.

Liberty    Mut.    Ins.    Co.,    105   F.3d    188,      191    (4th    Cir.   1997).

Rather,    the     evidence       must    be    such       that    the     fact-finder

reasonably could find for the nonmoving party.                           See Anderson,

477 U.S. at 252.          Guided by this procedural standard of review,

we analyze the merits of Rosen’s appeal.



                                         III.

      On appeal, Rosen contends that the district court erred in

granting summary judgment against him in light of the evidence

presented.        We disagree.        At the outset, it is important to

underscore the precise nature of Rosen’s business relationship

with Clemson.       In particular, the parties were in the formative

stages of negotiation and had never solidified the essential and

                                          10
material terms of the document known as the “2002 Agreement.”

The 2003 Agreement, moreover, terminated the 2002 Agreement for

all purposes.     On these facts, Rosen’s remedies against Clemson

are substantially limited.

                                   A.

     Rosen first claims that BMW tortiously interfered with his

contract with Clemson.     Under South Carolina law, the elements

of a cause of action for tortious interference with contract

are: (1) the existence of the contract; (2) the other party’s

knowledge of the contract; (3) the other party’s intentional

procurement of a breach of the contract; (4) the absence of

justification; and (5) resulting damage.           Webb v. Elrod, 418

S.E.2d 559, 561 (S.C. Ct. App. 1992).       A tortious interference

claim thus “presupposes the existence of a valid, enforceable

contract.”     Jackson v. Bi-Lo Stores, Inc., 437 S.E.2d 168, 171

(S.C. Ct. App. 1993).     The district court found that Rosen did

not show a genuine issue of material fact as to this cause of

action.      Viewing the evidence in the light most favorable to

Rosen, we similarly find that Rosen has not created a genuine

issue.

     Taking all of Rosen’s allegations as true, there is not a

valid,    enforceable   contract    to   support    Rosen’s   tortious

interference claim.     In order to have a valid and enforceable

contract under South Carolina law, there must be a meeting of

                                   11
the minds between the parties with regard to all the essential

and material terms of the agreement.                   Player v. Chandler, 382

S.E.2d 891, 893-94 (S.C. 1989).                 There can be no contract so

long as, in the contemplation of the parties thereto, something

remains to be done to establish contract relations.                      Hughes v.

Edwards, 220 S.E.2d 231, 234 (S.C. 1975).

       Here, the record before us evinces no meeting of the minds

between Rosen and Clemson with respect to all of the essential

and material terms.         Although the 2002 Agreement is, in essence,

an “agreement to agree,” such an agreement does not amount to a

contract under South Carolina law.                Trident Constr. Co., Inc. v.

Austin    Co.,   272   F.   Supp.   2d     566,      575   (D.S.C.   2003)   (citing

Blanton Enters., Inc. v. Burger King Corp., 680 F. Supp. 753,

770 n.20 (D.S.C. 1988)).            The parties merely agreed to enter

into negotiations to reach an agreement, but subsequently failed

to reach an actual agreement on essential terms pertaining to

land     allocations,       divisions      of      parcels,     and    restrictive

covenants for the property.             See Fici v. Koon, 642 S.E.2d 602,

604-05 (S.C. 2007) (noting that, in a real estate contract, a

description      sufficient    to   show      with    reasonable     certainty   the

location of the land and its boundaries is necessary); Player,

382 S.E.2d at 893-94 (finding a description of the extent and

boundary of the property to be an essential term of a contract

pertaining to real estate).           Therefore, inasmuch as substantial

                                         12
and necessary terms remained open for future negotiation and the

parties failed to reach an agreement on these terms, the 2002

Agreement never rose to the level of an enforceable agreement.

See Burbach Broadcasting Co. of Delaware v. Elkins Radio Corp.,

278 F.3d 401, 407 (4th Cir. 2002) (stating that, in preliminary

negotiations, when terms are indefinite and basic terms have not

been agreed upon, there is no basis to fashion a remedy, and

thus no enforceable contract). 2

      Furthermore, assuming arguendo that the parties had formed

a   valid,   enforceable   contract,    Rosen’s   tortious   interference

claim still would not pass muster and withstand summary judgment

because there was no genuine issue of material fact concerning


      2
        At oral argument, the parties disputed whether the
terminable-at-will provision of the 2002 Agreement also rendered
the agreement illusory.       Ordinarily, a terminable-at-will
provision would render contractual promises illusory and the
contract would thus be unenforceable for lack of consideration.
Glascock v. Comm’r of Internal Revenue, 104 F.2d 475, 476 (4th
Cir. 1939); see also RESTATEMENT (SECOND) OF CONTRACTS § 77 cmt. a
(1981) (stating that “[w]ords of promise which by their terms
make performance entirely optional with the ‘promisor’ do not
constitute a promise” and, instead, constitute an illusory
promise).    A notice provision, however, limits the right to
cancel and constitutes sufficient consideration to prevent a
contract from being illusory. See Am. Gen. Life & Accident Ins.
Co. v. Ward, 429 F.3d 83, 91 n.5 (4th Cir. 2005). Although the
2002 Agreement contained a ten-day notice provision, this
provision   failed  to   create   a   justified    expectation  of
performance because there was no meeting of the minds as to the
essential elements of the underlying agreement, resulting in a
failure to execute an enforceable contract in the first
instance.



                                   13
the    element      of     “absence       of        justification.”            Absence       of

justification means conduct that is carried out for an improper

purpose, such as malice or spite, or through improper means,

such as violence or intimidation.                     Waldrep Bros. Beauty Supply,

Inc. v. Wynn Beauty Supply Co., 992 F.2d 59, 62 (4th Cir. 1993)

(applying South Carolina law).                      A party is justified, however,

when   acting      in     the   advancement           of   its      legitimate       business

interests     or     legal      rights.              Webb,     418     S.E.2d     at       561.

Furthermore, as long as some legitimate purpose or right exists,

the    improper     purpose        must    predominate           in    order    to     create

liability.       Crandall Corp. v. Navistar Int’l Transp. Corp., 395

S.E.2d 179, 180 (S.C. 1990).

       Rosen has not offered any evidence that BMW utilized any

“improper    means,”       such    as     violence,        threats,     bribery,       fraud,

misrepresentation,          deceit,       or    duress,        to     interfere       in    his

relations    with       Clemson.        See     Waldrep       Bros.,    992    F.2d    at    63

(suggesting        that     such     actions          would      constitute       “improper

means”).     Conceding that BMW did not utilize “improper means,”

Rosen nonetheless maintains that BMW’s conduct was carried out

for an “improper purpose.”                In particular, he argues that BMW’s

only interest was to decouple Rosen from his property so that

BMW could assume full control over the project.                               This alleged

interest,    however,       does    not       exhibit      the    requisite      malice      or

spite to constitute an improper purpose.

                                               14
       Moreover, even if we assume an improper purpose, BMW still

could not be held liable because the improper purpose would not

predominate over BMW’s legitimate purpose.                                 At all times, BMW

acted    in    pursuit    of     its    legitimate            interests         in   founding    an

educational partnership with Clemson.                            As the sponsor of the GEC

under the Bond Act, BMW was an indispensable participant in the

establishment of the graduate institution.                                Contrary to Rosen’s

assertions, BMW thus remained motivated by a legitimate desire

to     find    a     suitable    location          for        the    GEC     and     retained     a

legitimate interest in Clemson’s land acquisition negotiations

that pertained to the GEC.

       In     sum,    given     that    Rosen          and       Clemson    never      reached   a

meeting       of   the   minds    on        all    the       essential      terms      and   BMW’s

conduct did not involve any improper means or purpose, Rosen has

not presented evidence sufficient to create a genuine issue of

material fact concerning “the existence of the contract” or “the

absence of justification.”                    The district court thus properly

granted       summary    judgment       in        favor      of     BMW    on    the   claim     of

tortious interference with contract.

                                                  B.

       Rosen’s second cause of action asserted that, even if the

2002     Agreement       failed        to    create          a     valid     and     enforceable

contract, it nonetheless represented an expectancy with which

BMW interfered.          The execution of the 2003 Agreement, however,

                                                  15
renders     this    argument     meritless.            Therefore,         the    district

court’s grant of summary judgment was proper.

       To assert a claim of tortious interference with prospective

contractual        relations,    the     plaintiff       must       prove       that       the

defendant:    (1)     intentionally       interfered      with      the     plaintiff’s

potential contractual relations; (2) for an improper purpose or

by    improper     methods;     (3)    causing    injury       to     the       plaintiff.

Crandall,     395     S.E.2d     at     180.      A     claim       for     prospective

interference       cannot     stand     where    the    plaintiff         is     able      to

consummate a contract with another party.                       See Egrets Pointe

Townhouses Prop. Owners Ass’n, Inc. v. Fairfield Cmtys., Inc.,

870 F. Supp. 110, 116 (D.S.C. 1994).                  Under South Carolina law,

it is irrelevant that a plaintiff could have realized a better

deal “but for” the actions of the defendant because the term

“potential”        contractual        relations       does      not       mean        “full”

contractual relations.          See id.        At the core, a cause of action

for    interference     with    prospective       contractual         relations         will

thus    lie   only     where     “the     aggrieved       party       [was]       .    .    .

unsuccessful in acquiring an expected contract due to a third

party’s intentional and wrongful actions.”                   Id.

       In light of this standard, Rosen cannot assert a viable

claim   for   interference       with    prospective      contractual            relations

because Rosen’s execution of the 2003 Agreement, which expressly

terminated the 2002 Agreement for all purposes, precluded any

                                          16
claim   he    otherwise        would       have       had.      See    id.     (holding     that

“[b]ecause     there         was    a    valid    contract      in     existence       [between

plaintiff and another party] at the inception of this action, .

. . the existence of that contract precludes any recovery on a

claim        for        interference             with        prospective            contractual

relations.”).           Similarly, Rosen cannot recover on a theory that

the 2003 Agreement was less profitable to him than it would have

been without BMW’s interference.                      See id.

     As       previously           explained,           moreover,           Rosen     has     not

demonstrated that BMW acted for an improper purpose or utilized

improper methods, which is a necessary element of an intentional

interference         with      prospective            contractual       relations        claim.

Crandall, 395 S.E.2d at 180.                   Consequently, viewing the evidence

in the light most favorable to Rosen and taking his allegations

as true, there is no genuine issue of material fact and the

district court properly granted summary judgment in favor of BMW

on   the     claim      of     intentional            interference      with        prospective

contractual relations.

                                                 C.

     Rosen’s third cause of action alleged that BMW engaged in a

civil conspiracy with agents and representatives of Clemson and

the State of South Carolina.                     Under South Carolina law, a civil

conspiracy         claim      contains         the      following       elements:       (1)     a

combination        of   two    or       more   persons,       (2)     for    the    purpose    of

                                                 17
injuring the plaintiff, (3) which causes the plaintiff special

damage.      Lee v. Chesterfield Gen. Hosp. Inc., 344 S.E.2d 379,

382 (S.C. 1986) (citations omitted).                          The difference between

civil and criminal conspiracy is that “in criminal conspiracy

the agreement is the gravamen of the offense, whereas in civil

actions, the gravamen of the tort is the damage resulting to

plaintiff from an overt act done pursuant to a common design.”

Vaught      v.    Waites,    387     S.E.2d      91,    95    (S.C.    Ct.    App.     1989)

(citation omitted).          To recover on a civil conspiracy claim, the

plaintiff must therefore demonstrate that the “object of the

conspiracy        was   to   ruin    or   damage        the   business       of   another.”

Waldrep Bros., 992 F.2d at 63.

       In this case, there is no genuine issue of material fact

because     the     record    is    devoid      of     any    evidence       suggesting    a

conspiracy.         Indeed, no facts have been presented that could

lead a court to conclude that BMW’s objective was to injure

Rosen’s      business.         Although         Rosen    claims       that    there    were

meetings,        telephone    calls,      and    emails       exchanged      between    BMW,

AMREC, and AMREC’s attorneys plotting ways to leverage him to

give   up    his    property        and   contract       rights,      such    claims     are

insufficient.           Rosen has not provided a scintilla of evidence

that would suggest that BMW possessed the requisite motive to

injure.      Rather, the record indicates that BMW was motivated by

its desire to establish the GEC, which in and of itself does not

                                            18
imply an explicit desire to damage Rosen’s business.                             The only

harm       that    BMW   may    have    intended     to    cause    Rosen        was    the

incidental harm to a competitor that is necessarily part of all

legitimate business competition.

       That       increased    benefits      for   one   entity    may    come     at   the

expense of a competing entity is merely a fact of life in a

market      economy.      Id.      Consequently,         although   a     party    cannot

interfere with a contract because of malice or spite, it is

altogether legitimate for BMW to engage in business competition

with       Rosen’s   entities.         See   RESTATEMENT (SECOND)    OF    TORTS   §    768

(1979) (“One who intentionally causes a third person . . . not

to continue an existing contract terminable at will does not

interfere improperly with the other’s relation if . . . his

purpose is at least in part to advance his interest in competing

with the other.”). 3            Sanctioning BMW for obtaining a contract

with Clemson would thus unjustly punish BMW and Clemson.                                The

evidence in this case demonstrated that Clemson terminated its

       3
       Granted, if Rosen and Clemson had executed a contract that
was not terminable at will, there would be “established
interests that are not subject to interference on the basis of
competition alone.”   RESTATEMENT, supra, § 768 cmt. a.   However,
where the contract at issue is terminable at will, competition
is not an improper basis for interference. See RESTATEMENT, supra,
§ 768 cmt. i (“If the third person is free to terminate his
contractual relation with the plaintiff when he chooses, . . .
any interference with it that induces its termination is
primarily an interference with the future relation between the
parties, and the plaintiff has no legal assurance of them.”).



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2002 Agreement with Rosen because of its dissatisfaction with

the progress and development of the wind tunnel project and its

reasonable belief that the GEC did not require a wind tunnel.

Punishing BMW under these facts would not only undermine BMW’s

legitimate business negotiations, but also effectively deprive

Clemson    of     its     entitlement          to    seek       out    those   ventures      most

aligned with its institutional goals.

     Furthermore, fatal to Rosen’s claim for civil conspiracy

against    BMW       is   the    fact    that       he     has    not    adequately    alleged

special    damages        in    connection          with       the    claim.       Under    South

Carolina     law,         the        damages        allegedly          resulting     from     the

conspiracy must not overlap with or be subsumed by the damages

allegedly    resulting          from     the    other          claims.     See     Vaught,    387

S.E.2d at 95.             Rosen therefore must allege and prove damages

that occurred as a result of the alleged conspiracy itself, in

addition to any damages alleged as a result of any other claims.

See id.     Here, the damages sought for conspiracy, namely loss of

profits     and      loss       of    development          and        management    fees,     are

identical       to    the   damages       sought          in    Rosen’s    other     causes    of

action.      We      therefore         affirm       the    district       court’s     grant    of

summary judgment in favor of BMW with respect to the claim of

civil conspiracy.




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                                   IV.

     Viewing   the   record   as   a   whole   and   in   the   light   most

favorable to the nonmoving party, we conclude that there is no

genuine issue as to any material fact and that BMW is entitled

to a judgment as a matter of law.          Accordingly, we affirm the

district court’s order granting summary judgment.

                                                                  AFFIRMED




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