                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1885


JOHN E. THOMPSON,

                Plaintiff - Appellant,

          v.

CDL PARTNERS LLC,

                Defendant - Appellee,

          v.

DON ALVIN MESSERVY,

                Third Party Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:08-cv-02423-PMD)


Submitted:   April 21, 2010                 Decided:   May 14, 2010


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daniel L. Prenner, PRENNER MARVEL, P.A., Charleston, South
Carolina, for Appellant. Eric G. Fosmire, COLLINS & LACY, P.C.,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               John E. Thompson appeals the district court’s grant of

summary judgment in favor of CDL Partners LLC (CDL), in this

personal injury action.       For the following reasons, we affirm.



                                       I.

               In 2006, Thompson, a resident of Florida, was living

in Folly Beach, South Carolina, in a residential apartment owned

and maintained by CDL. 1       Thompson’s apartment was on the second

floor of a three-floor complex.               Garages were on the ground

floor and two apartments were located on each of the second and

third       floors.   Each   floor    had   an    exterior    balcony   and    the

stairwell—located       in   the     middle      of   the    building—was     also

exterior.       On the evening of July 19, 2006, Thompson was smoking

a cigarette and leaned against the second-floor balcony railing.

The railing collapsed, and Thompson fell roughly twenty feet to

the cement parking lot below.           Thompson landed on his arms and

head, sustaining significant injuries including two broken arms

and a head injury.           Karl Poruben, who lived above Thompson,

discovered him in the parking lot at approximately 10:30 or 11

p.m.        Because of darkness at that late hour, Poruben did not


        1
       CDL purchased the complex from the original builder, Don
Alvin Messervy, in 2004.   Messervy constructed the building in
1996.


                                        2
immediately grasp the severity of Thompson’s injuries and aided

him up the stairs.                  In Thompson’s apartment, Poruben saw how

severe Thompson’s arm injuries were.                            Poruben called 911, and

Thompson was soon transported to an area hospital.

               Prior to Thompson’s fall, there had been two attempts

to    fix    the       railing      in    question.          Roughly    two      weeks   before,

Thompson’s         next      door    neighbor,        Kenneth     McDowell,         noticed    the

railing just “dangling,” and, because Thompson was not home at

the    time,       McDowell         endeavored        to    repair     it.       McDowell      and

Poruben had previously seen Thompson resting his feet on the

railing while sitting on the balcony.                          After McDowell attempted

to fix the railing, he informed Thompson that, because the wood

was in poor condition, he should not lean against it.                                    Several

days later, Poruben saw that the railing had completely fallen

off and landed on his car.                   Poruben notified Thompson, and later

that day he saw Thompson attempting to affix the railing again.

For    his    part,       Thompson        does    not       remember    the      incident     with

Poruben,      but       he    does       remember      McDowell      mentioning       that    the

railing was in poor condition.

               After      McDowell        fixed       the    railing,       he   mentioned     its

condition to his roommate, James Polito.                             Because McDowell was

subleasing         a    room     from     Polito,       Polito—not      McDowell—typically

dealt       with       the     landlord.              In     fact,     it     was    McDowell’s

understanding that Polito had an agreement with the building’s

                                                  3
original owner, Don Alvin Messervy, to perform certain upkeep on

the   property.       McDowell       thought      that       Polito    spoke      to    CDL

regarding the railing, but Polito could not recall doing so.

McDowell, Poruben, and Thompson all testified that they did not

notify CDL about the railing’s condition prior to Thompson’s

fall.

            On July 3, 2008, Thompson filed this action in the

District    of    South     Carolina       against    CDL,    alleging      claims      for

common    law    negligence    and     a    violation    of    the    South    Carolina

Residential Landlord and Tenant Act (“SCRLTA”).                         The district

court entered an initial scheduling order, setting a discovery

deadline of June 30, 2009.              Prior to this deadline, on January

21, 2009, CDL moved for summary judgment.                      The district court,

without    a     hearing,     granted       the   motion      on     July   10,        2009.

Thompson filed a timely notice of appeal and this court has

jurisdiction pursuant to 28 U.S.C. § 1291 (2006).



                                            II.

            On    appeal,     Thompson       argues    that    the    district         court

erred in granting summary judgment on both of his state law

claims and also erred in granting summary judgment prior to the

discovery deadline.         We address each contention in turn.




                                             4
                                                A.

                 We    review      a    grant    of     summary        judgment   de     novo.

Jennings v. University of North Carolina, 482 F.3d 686, 694 (4th

Cir. 2007) (en banc).                   Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”              Fed. R. Civ. P. 56(c)(2).                  We generally must

view all facts and draw all reasonable inferences in the light

most favorable to the nonmoving party.                           Scott v. Harris, 550

U.S. 372, 378 (2007).

                 The parties agree that South Carolina substantive law

controls.         As a federal court sitting in diversity, we have an

obligation            to   apply       the   jurisprudence        of     South    Carolina’s

highest     court,         the     South     Carolina    Supreme       Court.       Wells   v.

Liddy, 186 F.3d 505, 527-28 (4th Cir. 1999).                            But in a situation

where      the     South     Carolina        Supreme     Court     has     spoken      neither

directly nor indirectly on the particular issue, we must predict

how that court would rule if presented with the issue.                               Id.    In

so predicting, decisions of the South Carolina Court of Appeals,

as   the    state’s        intermediate         appellate    court,       “constitute       the

next best indicia of what state law is, although such decisions

may be disregarded if the federal court is convinced by other

persuasive data that the highest court of the state would decide

                                                 5
otherwise.”       Liberty Mut. Ins. Co. v. Triangle Indus. Inc., 957

F.2d    1153,     1156    (4th     Cir.        1992)      (internal            quotation       marks

omitted).       With this framework in place, we turn to Thompson’s

SCRLTA and common law negligence claims.

                                               1.

               “Traditionally,         under        the   law    of       South    Carolina,       a

landlord owes no duty to maintain leased premises in a safe

condition.”       Young v. Morrisey, 329 S.E.2d 426, 428 (S.C. 1985).

The SCRLTA, enacted in 1986, requires a landlord to comply with

applicable housing codes materially affecting health and safety,

and “make all repairs and do whatever is reasonably necessary to

put and keep the premises in a fit and habitable condition.”

S.C.    Code     Ann.     §    27-40-440(a)(1)-(2)               (2007).            The    SCRLTA

provides    for    recovery       of    actual        damages        as    a     result    of    any

material noncompliance by the landlord.                         S.C. Code Ann. § 27-40-

610(a)-(b) (2007).             Negligence actions may be brought under the

SCRLTA.        Pryor v. Northwest Apartments, Ltd., 469 S.E.2d 630,

632    (S.C.    Ct.     App.    1996).         “As    with      any       negligence       action,

plaintiff       must    establish        (1)    a     duty      of    care        owed    by     the

defendant to the plaintiff; (2) a breach of that duty by a

negligent act or omission; and (3) damage proximately resulting

from the breach.”         Id. at 633.

               Both parties agree that the railing did not satisfy

required       safety    standards       under        § 27-40-440           at    the     time   of

                                                6
Thompson’s fall.            Thompson argues that is the extent of his

burden     under    the     SCRLTA.        CDL     argues    that,       even   under   the

SCRLTA, Thompson must show that CDL had notice of the defective

condition.         The district court, relying primarily on a recent

case by the South Carolina Court of Appeals, 2 Robinson v. Code,

682 S.E.2d 495 (S.C. Ct. App. 2009), agreed with CDL’s position.

             We also agree with CDL, that, in light of the rulings

of   the   South        Carolina    Court    of    Appeals,        the   South   Carolina

Supreme Court would require that a landlord have notice of a

defect before being liable to the tenant under the SCRLTA.                               In

1989, the Court of Appeals held, just years after the SCRLTA’s

enactment, that “the RLTA by express words creates a cause of

action in tort in favor of a tenant of residential property

against     his     landlord       for     failure,        after     notice,     to     make

necessary repairs and to do what is reasonably necessary to keep

the premises in a habitable condition.”                      Watson v. Sellers, 385

S.E.2d     369,     373     (S.C.     Ct.     App.        1989)     (emphasis     added).

Recently, in Code, the Court of Appeals reaffirmed that “the

Landlord-Tenant Act require[s] written notice to the landlord

specifying the acts and omissions constituting the breach and

failure    of     the    landlord     to    make    the    necessary      repairs     after

notice.”     Code, 682 S.E.2d at 497-98.                   In Code, a single-family

      2
       The district court incorrectly identified Robinson v. Code
as having been decided by the South Carolina Supreme Court.


                                             7
home that had been converted into a rental property lacked smoke

detectors    in       violation      of    state       law.        The   Court       of   Appeals

nonetheless       concluded       that,        because       the    plaintiffs       failed      to

allege    that     they      notified          the   owner     of    the      lack    of    smoke

detectors, they could not state a claim under the SCRLTA.                                       Id.

at 498.

            This consistent interpretation of the SCRLTA by the

Court of Appeals convinces us that the South Carolina Supreme

Court would require that the tenant provide the landlord notice

of a defective condition before liability attaches under the

SCRLTA.      In       addition,      the       Court    of    Appeals       pointed        to   two

provisions       of    the    SCRLTA       that        buttress      such     a    conclusion.

First, the Act mentions the delivery of “a written notice to the

landlord    specifying         the    acts       and     omissions       constituting           the

breach.”      S.C.      Code    Ann.       §    27-40-610(a).            In    addition,        the

SCRLTA states that the tenant’s rights “do not arise until he

has given notice to the landlord and the landlord fails to act

within a reasonable time.”                S.C. Code Ann. § 27-40-630(d).

            Thompson          next        argues         that,       even         under     CDL’s

interpretation of the SCRLTA, there was sufficient evidence to

survive summary judgment because, either CDL did have notice of

the defective railing, or McDowell was an agent of CDL.                                         The

district court ruled against Thompson on both issues.



                                                 8
            Regarding        notice,     the    district     court      found    that

summary judgment was appropriate because “[e]ssentially, then,

all residents of the building in question have given deposition

testimony in which they explicitly denied ever contacting [CDL]

regarding the railing.             No reasonable jury could evaluate this

information and rule that [CDL] received notice.”                        On appeal,

Thompson    points     to    McDowell’s    testimony     that      he   told    Polito

about the railing and that McDowell thought that Polito spoke to

CDL about getting it fixed.               As the district court explained,

however,    McDowell        “acknowledged”      that    he     himself     had    not

contacted       CDL   and   “never    claimed   to   have    any    first-hand      or

direct knowledge that Polito contacted [CDL].”                  Moreover, Polito

testified in his deposition that he did not recall contacting

CDL.       We    agree      with   the    district     court    that     McDowell’s

speculation that his roommate might have contacted CDL—in the

face of admissions from McDowell, Polito, Poruben, and Thompson

that none of them did contact CDL—is insufficient to create a

genuine issue of material fact.

            Thompson also argues that CDL had notice of the defect

because McDowell was CDL’s apparent agent and, thus, his notice

can be imputed to CDL.               South Carolina recognizes the law of

apparent agency, that is:

       One who employs an independent contractor to perform
       services for another which are accepted in the
       reasonable belief that the services are being rendered

                                          9
        by the employer or by his servants, is subject to
        liability for physical harm caused by the negligence
        of the contractor in supplying such services, to the
        same extent as though the employer were supplying them
        himself or by his servants.

Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312, 322 (S.C.

2000)     (internal    quotation    marks       omitted).         According       to

Thompson, McDowell’s testimony regarding his role in the upkeep

of the property suggests that McDowell was CDL’s agent.                          The

district court rejected this argument, concluding that McDowell

never had any direct contact with CDL and that his behavior

“constitute[d] being a good tenant and neighbor and taking pride

in one’s residence.”       The district court further concluded that,

to the extent McDowell did perform work at the behest of CDL,

“such behavior would have always been narrowly confined to a

specific    task,   and   would   not   give    rise   to   the   same   general

apparent    agency.”      We    agree    with    the   district     court     that

McDowell was not an agent of CDL.               Under the law of apparent

agency, CDL would still be required to have hired McDowell as an

independent    contractor      performing    functions      for   CDL.      It    is

undisputed, however, that McDowell never spoke with CDL and that

any agreement regarding yard work and upkeep was between Polito

and CDL’s predecessor, Messervy.

                                        2.

            Thompson also appeals the grant of summary judgment on

his common law negligence claim.             Under South Carolina law, a

                                        10
plaintiff must prove four elements to recover under a negligence

theory:      "(1) a duty of care owed by defendant to plaintiff; (2)

breach      of     that     duty   by   a    negligent     act     or    omission;     (3)

resulting in damages to the plaintiff; (4) damages proximately

resulted     from     the     breach    of    duty."      Thomasko      v.    Poole,   561

S.E.2d 597, 599 (S.C. 2002).                  “An essential element in a cause

of action for negligence is the existence of a legal duty of

care owed by the defendant to the plaintiff.”                           Bishop v. S.C.

Dep’t of Mental Health, 502 S.E.2d 78, 81 (S.C. 1998).

              The district court correctly granted summary judgment

on this claim because Thompson cannot establish a duty on the

part of CDL.          As discussed above, “[t]raditionally, under the

law    of   South     Carolina,     a    landlord      owes   no   duty      to   maintain

leased premises in a safe condition.”                     Morrisey, 329 S.E.2d at

428.     Indeed, one of the purposes of the SCRLTA was to create a

negligence action in this area.                    Thompson attempts to avoid this

conclusion by suggesting that CDL created the hazard, but no

record evidence supports the suggestion that CDL knew of the

railing’s condition, yet alone created it.

                                              B.

                 Finally,     Thompson       argues    that   the       district     court

erroneously granted CDL’s summary judgment motion prior to the

discovery deadline.             Thompson is correct that, “[a]s a general

rule, summary judgment is appropriate only after ‘adequate time

                                              11
for discovery.’”        Evans v. Technologies Applications & Serv.

Co., 80 F.3d 954, 961 (4th Cir. 1996).                   We have also explained,

however, that “the nonmoving party cannot complain that summary

judgment was granted without discovery unless that party had

made an attempt to oppose the motion on the grounds that more

time was needed for discovery or moved for a continuance to

permit discovery before the district court ruled.”                         Id.    Our

approach dovetails with Federal Rule of Civil Procedure 56(f),

which provides that a party opposing summary judgment may file

an affidavit providing specific reasons that it cannot oppose a

motion for summary judgment without the opportunity to conduct

further discovery.          We place “great weight” on a Rule 56(f)

affidavit,    and    have   explained     that      “a    party    may   not   simply

assert in its brief that discovery was necessary and thereby

overturn   summary     judgment    when       it   failed   to    comply   with   the

requirement of Rule 56(f) to set out reasons for the need for

discovery in an affidavit.”              Evans, 80 F.3d at 961 (internal

quotation marks and alteration omitted).                    In Evans, we cited

with approval a Second Circuit holding that “‘the failure to

file an affidavit under Rule 56(f) is itself sufficient grounds

to   reject   a     claim   that   the    opportunity        for    discovery     was

inadequate.’”       Id. (quoting Paddington Partners v. Bouchard, 34

F.3d 1132, 1137 (2d Cir. 1994)).



                                         12
              In this case, the district court set forth an initial

discovery deadline of June 30, 2009, but CDL filed its motion

for summary judgment on January 29.                      In his response to CDL’s

motion, Thompson mentioned that the discovery deadline had not

passed     and   that    he    “intend[ed]         to   notice     the    deposition      of

third-party defendant Don Alvin Messervy” prior to the deadline.

Thompson did not file a Rule 56(f) affidavit, however, and never

took Messervy’s deposition even though the district court did

not ultimately rule upon the summary judgment motion until July

10, 2009. 3

              Given     this       factual    record,         we   conclude       that    the

district court did not err in granting summary judgment before

the   discovery       deadline.        Thompson         had    more   than    six    months

between    the   filing       of    CDL’s    summary      judgment       motion     and   the

district court’s order granting summary judgment to either file

a   Rule   56(f)      affidavit       or     attempt     to    take   more    discovery.

Because he did neither he cannot now be heard to complain that

he lacked adequate discovery time.




      3
       The district court entered a revised scheduling order on
April 29, 2009, setting forth a new discovery deadline of August
31, 2009.


                                              13
                                      III.

              We   affirm    the   district     court’s    grant    of   summary

judgment in favor of CDL on Thompson’s SCRLTA and common law

negligence claims.          We dispense with oral argument because the

facts   and    legal   contentions    are     adequately    presented     in   the

materials     before   the    court   and     argument    would    not   aid   the

decisional process.

                                                                         AFFIRMED




                                       14
