                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-2299



JOHN WALSH; REBECCA WALSH, Wife,

                                             Plaintiffs - Appellants,


           versus

RESTORATION HARDWARE, INCORPORATED; SYRATECH
CORPORATION; SILVESTRI, INCORPORATED,

                                             Defendants - Appellees.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-01-527)


Argued:   September 28, 2004             Decided:    February 11, 2005


Before WIDENER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.     Judge Widener wrote a
dissenting opinion.


ARGUED: Fred William DeVore, III, DEVORE, ACTON & STAFFORD,
Charlotte, North Carolina, for Appellants.           Elizabeth Ann
Martineau, HEDRICK, EATMAN, GARDNER & KINCHELOE, Charlotte, North
Carolina, for Appellee Restoration Hardware, Incorporated; Kimberly
Ann Gossage, MORRIS, YORK, WILLIAMS, SURLES & BARRINGER, L.L.P.,
Charlotte, North Carolina, for Appellees Syratech Corporation and
Silvestri, Incorporated.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                            - 2 -
PER CURIAM:

     Plaintiffs-appellants John and Rebecca Walsh filed suit against

defendant-appellee, Restoration Hardware, Inc.,1 alleging, inter

alia, negligence, breach of implied warranty of merchantability, and

breach of implied warranty of fitness for a particular purpose

concerning Christmas tree lights that the Walshes purchased from

Restoration Hardware.2   The district court granted summary judgment

to Restoration Hardware, and the Walshes timely appeal.     For the

reasons given herein, we affirm.



                                 I.

     On or about January 2000, the Walshes purchased several strands

of large bulb “old time” Christmas lights from Restoration Hardware

and stored them in their attic for use on their tree during the 2000

Christmas season.   The attic in which the lights were stored became

extremely hot and extremely cold throughout the year depending on

the external temperature.   These lights were combined with lights

purchased in December 2000 and used on the Walshes’ Christmas tree

in December 2000.




     1
      Several defendants were named in the suit and all were
dismissed on summary judgment.     The Walshes only appeal the
dismissal of Restoration Hardware.
     2
      The Walshes also alleged breach of express warranty but do
not appeal the dismissal of that claim.

                               - 3 -
     After purchasing these lights, the Walshes tested them by

plugging them into the wall.     When the lights appeared normal, the

Walshes then strung the lights on their tree. On December 20, 2000,

Rebecca Walsh arrived home with her daughter and turned on the

lights.     Mrs. Walsh heard a “pop” and, upon turning, saw a flame at

the base of the Christmas tree.3    The flame quickly spread, and Mrs.

Walsh and her daughter fled the house, which was destroyed by the

fire.

     In August, 2001, the Walshes filed suit against Restoration

Hardware.      Restoration Hardware answered and moved for summary

judgment. The district court granted Restoration Hardware’s motion.

The Walshes timely appeal.



                                   II.

     We review the district court’s decision under the familiar

summary judgment standard:      viewing the record in the light most

favorable to the Walshes and reviewing all issues of law de novo,

we uphold the district court grant of summary judgment only if

Restoration Hardware is entitled to judgment as a matter of law.

See St. Paul Fire & Marine Ins. Co. v. Am. Int'l Specialty Lines

Ins. Co., 365 F.3d 263, 267 (4th Cir. 2004).       Additionally, as a

federal court sitting in diversity, we apply the substantive law of


        3
      Mr. Walsh testified at deposition that his daughter saw one
of the Christmas lights explode, though there is no testimony from
the daughter in the record.

                                 - 4 -
North Carolina, the state in which the action arose, Castillo v.

Emergency Med. Assocs., P.A., 372 F.3d 643, 646 (4th Cir. 2004)

(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188,

58 S. Ct. 817 (1938)).



                                     III.

     The   district   court   held    that   the   North   Carolina   “sealed

container” defense protects Restoration Hardware from liability in

this case.   See N.C. Gen. Stat. § 99B-2 (2004).           We need not reach

that issue because we hold that the Walshes did not present evidence

to establish a prima facie case of negligence or breach of implied

warranty under North Carolina law.4            Therefore, we affirm the

district court, albeit on different grounds.



     4
      The dissent contends that we lack jurisdiction to reach this
issue because the summary judgment order does not address it.
While the dissent correctly notes that we generally do not review
denials of summary judgment, that is not what happened here. The
district court did not deny summary judgment in this case; rather,
it granted it. Once the matter is properly before us on appeal, we
may uphold this grant on any grounds before the district court.
See Keller v. Prince George’s County, 923 F.2d 30, 32 (4th Cir.
1991)(“[T]he prevailing party [in a summary judgement motion] may,
of course, assert in a reviewing court any ground in support of his
judgment, whether or not that ground was relied upon or even
considered by the trial court.") (internal quotation omitted); see
also Egbuna v. Time-Life Libraries, Inc., 153 F3d 184, 186 (4th
Cir. 1998) (“We may affirm the grant of summary judgment on grounds
other than those relied upon by the district court.”). Cedar Coal
Co. v. United Mine Wkrs. of America, 560 F.2d 1153 (4th Cir. 1977),
on which the dissent relies, involved the failure to rule on a
motion for a preliminary injunction being construed as a denial,
and, as such, is simply inapposite.


                                     - 5 -
      Plaintiffs bringing product liability claims under a negligence

theory,    a   theory        of   breach   of   an   implied    warranty    of

merchantability, or a theory of breach of an implied warranty of

fitness for a particular purpose must present some evidence that,

inter alia, the product was in a defective condition at the time

defendant sold it to plaintiff. Nicholson v. American Safety Utility

Corp.,    476 S.E.2d    672, 676, 678 (N.C. Ct. App. 1996); Bailey v.

Le Beau, 339 S.E.2d 460, 463 (N.C. Ct. App. 1986).              If, as is the

case here, the plaintiffs do not present any direct evidence of the

product’s defectiveness at the time of sale, they can still raise

an issue of material fact sufficient to survive summary judgment

through circumstantial evidence.           DeWitt v. Eveready Battery Co.,

565   S.E.2d   140,    151    (N.C.   2002).    In   deciding   whether    this

circumstantial evidence is sufficient to create a dispute concerning

material facts, North Carolina courts examine six factors:

       (1) the malfunction of the product; (2) expert testimony
       as to a possible cause or causes; (3) how soon the
       malfunction occurred after the plaintiff first obtained
       the product and other relevant history of the product,
       such as its age and prior usage by plaintiff and others,
       including evidence of misuse, abuse, or similar relevant
       treatment before it reached the defendant; (4) similar
       incidents, when accompanied by proof of substantially
       similar circumstances and reasonable proximity in time;
       (5) elimination of other possible causes of the
       accident; and (6) proof tending to establish that such
       an accident would not occur absent a manufacturing
       defect.

Id. (internal citations and quotations omitted).




                                      - 6 -
     In applying these factors to the Walshes’ claim, we note that

"in most cases, the weighing of these factors should be left to the

finder of fact."    Id.   We also note, however, that, in addition to

using these factors to assist the fact finder, “the trial judge is

to consider these factors initially and determine whether, as a

matter of law, they are sufficient to support a finding of a breach

of warranty.” Id.    Considering these factors on the record before

us, we hold that, as a matter of law, the circumstantial evidence

presented by the Walshes does not support a finding of negligence

or breach of the implied warranties.

     Considering the facts before us in light of the DeWitt factors,

we hold that the Walshes have not presented circumstantial evidence

sufficient to support a finding of breach of warranty. Although the

record reflects that there was a popping sound in the room when the

Christmas lights were plugged in, there is no other evidence that

the lights themselves actually malfunctioned.5    There was no expert

testimony as to the cause of the fire.6    The lights were purchased

almost a year before they were used.     The Walshes acknowledge that



     5
      The Walshes’ daughter allegedly saw one of the lights
explode. However, she has not made sworn testimony on the record
to this effect, and the Walshes have not explained why her
statement is not inadmissible hearsay.
     6
      Restoration Hardware was apparently unable to produce an
exemplar of the lights for the Walshes to test, which is troubling.
The Walshes, however, have not pursued this issue on appeal or
presented expert testimony as to how this affected their case.


                                 - 7 -
they were stored in an attic subject to extreme temperatures for a

period of months.   There is no evidence of similar incidents with

these or similar Christmas lights.     There was no evidence that

eliminated other causes of the fire, and no evidence that such a

fire would occur absent a manufacturing defect.   Application of the

DeWitt criteria thus compels our conclusion that the Walshes’

evidence of causation is fatally deficient.



                                IV.

     Having carefully considered the arguments of the parties and

the record before us, we hold that the Walshes have not presented

circumstantial evidence sufficient to demonstrate that the lights

were defective at the time that they were sold. The judgment of the

district court is therefore

                                                          AFFIRMED.




                               - 8 -
WIDENER, Circuit Judge, dissenting:

     I respectfully dissent.

     The majority=s disposition of this matter is contrary to the

rule that a denial of a motion for summary judgment is not an

appealable order. See Hensley v. Horne, 297 F.3d 344, 347 (4th Cir.

2002).

     Restoration     Hardware=s   brief    accompanying   its   motion   for

summary judgment argued that plaintiffs failed to produce any direct

or circumstantial evidence that the lights were defective at the

time they left Restoration Hardware=s control.       Whatever the merits

of that argument, the district court did not grant the motion for

summary judgment on that ground, and the ground is not mentioned in

its opinion.   The district court held that Restoration Hardware was

protected by the sealed container defense.          Thus, the motion for

summary   judgment    based   upon   plaintiffs=    failing     to   produce

sufficient evidence of defect was not acted upon and is therefore

considered to be denied.      See Cedar Coal Co. v. United Mine Wkrs.

of America, 560 F.2d 1153, 1161 (4th Cir. 1977) (Athe failure to

hear the motion for the preliminary injunction cannot be taken as

inadvertence; rather it may only be construed as a conscious denial

of a hearing on the motion”).

     Even if the majority, in its footnote 4, is correct in

declining to apply Cedar Coal as a denial of the motion for summary

judgment on the ground upon which it presently relies, its reliance


                                   - 9 -
on Keller and Egbuna also should be of no avail.                 Both Keller and

Egbuna are based on Securities and Exchange Commission v. Chenery

Corp., 318 U.S. 80 (1943).       The majority, however, does not mention

the critical parts of Chenery.

     The appellate decision must be

     . . . within        the    power     of   the   appellate    court   to
     formulate.

318 U.S. at 88.

     And

     . . . a judicial judgment cannot be made to do service
     for an administrative judgment [which was not made].

318 U.S. at 88.

     This appellate court has no power to review the denial of a

motion for summary judgment.        Certainly it should have no power to

review the mere failure to act on a motion for summary judgment.

     If the appellate court in Chenery was not authorized to make

the decision the Agency was authorized to make and had not made,

then it should follow that this appellate court should not be

authorized   to   make   a     decision    which     the   district   court    was

authorized to make but simply had not made.

     In my opinion, the judgment of the district in this case court

should be vacated and the case remanded for further consideration.




                                    - 10 -
