UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COLLINS ENTERTAINMENT
CORPORATION, formerly known as
Collins Music Company, Inc.;
COLLINS GAMES OF MISSISSIPPI,
INCORPORATED,
Plaintiffs-Appellants,

v.

INFINATIONAL TECHNOLOGIES,
                                                               No. 96-2802
INCORPORATED,
Defendant-Appellee,

and

INTERNATIONAL GAMECO,
INCORPORATED, formerly known as
Infinational Technologies,
Incorporated,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-96-343-6-3)

Argued: October 2, 1997

Decided: May 4, 1998

Before WIDENER, NIEMEYER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Robinson Gilreath, JAMES R. GILREATH, P.A.,
Greenville, South Carolina, for Appellants. Nathaniel Heyward Clark-
son, III, CLARKSON, FORTSON, WALSH & RHENEY, P.A.,
Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiff, Collins Entertainment Corporation, sued the defen-
dant, Infinational Technologies, Inc., in the United States District
Court for the District of South Carolina under South Carolina's ver-
sion of the Uniform Commercial Code (U.C.C.) and on various tort
and contract grounds. The jury returned a verdict in favor of the
defendant. The plaintiff appeals the district court's grant of a directed
verdict in favor of the defendant as to claims of negligence, fraud,
constructive fraud and negligent misrepresentation. In addition, the
plaintiff appeals the district court's denial of motions for judgment
notwithstanding the verdict and for a new trial. We affirm.

The parties agree that the plaintiff, a seller and lessor of gaming
equipment, entered into an agreement with the defendant, a manufac-
turer of gaming equipment, to purchase electronic pulltab networks,
which are gambling slot machines used by charities to raise money.
A player competes against other players instead of merely against the
machines. The networks consisted of Master Deal Distributors that
controlled the activity of Electronic Pulltab Game Machines that indi-
viduals played. An Electronic Pulltab Game Center at the defendant's
headquarters downloaded games electronically to the Distributor.

On August 18, 1992, the plaintiff ordered 20 Machines and five
Distributors from the defendant. The plaintiff received 20 Machines

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and one Distributor and made payment thereon. More than one year
later, the plaintiff returned the Machines and the Distributor. The
defendant did not return the purchase price, and the plaintiff sued for
a return thereof plus additional damages.

The district court granted the defendant's motion for a directed ver-
dict on the claims of negligent fraud, constructive fraud, negligence,
misrepresentation (punitive damages) and comparative negligence.
The district court submitted the claims under the U.C.C. and contract
law to the jury, and the jury returned a verdict in favor of the defen-
dant upon which judgment was entered. Plaintiff moved for judgment
notwithstanding the verdict or for a new trial, but the district court
denied these motions. Plaintiff filed a timely appeal.

Jurisdiction in this court is proper under 28 U.S.C.§ 1291. We
review the grant of the directed verdict de novo . Parker v. Prudential
Ins. Co. of America, 900 F.2d 772, 776 (4th Cir. 1996). In reviewing
the denial of the motion for judgment notwithstanding the verdict, we
view the evidence in the light most favorable to the non-moving party
to determine if there is substantial evidence in the record to support
the verdict. Brady v. Allstate Ins. Co., 683 F.2d 86, 89 (4th Cir. 1982).
We review the denial of the motion for a new trial for abuse of discre-
tion. Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir.
1984).

To grant such a motion for a directed verdict, the court must con-
strue the evidence in the light most favorable to the non-moving party
and conclude that there is no substantial evidence supporting liability.
Garraghty v. Jordan, 830 F.2d 1295, 1302 (4th Cir. 1987). Plaintiff
claims that the district court improperly granted a directed verdict in
favor of the defendant with regard to the claims of negligence, fraud,
constructive fraud and negligent misrepresentation.*

Under South Carolina law, fraud, constructive fraud and negligent
misrepresentation require a showing of a false representation.
Moorhead v. First Piedmont Bank & Trust Co., 256 S.E.2d 414, 415
(S.C. 1979) (outlining elements of fraud); Greene v. Browne, 19
_________________________________________________________________
*As phrased in plaintiffs' brief, p. 17, a difference of phrasing of no
consequence from the transcript, A. 217.

                    3
S.E.2d 114, 116 (S.C. 1942) (outlining elements of constructive
fraud); AMA Management Corp. v. Straburger, 420 S.E.2d 868, 873-
74 (S.C. Ct. App. 1992) (outlining elements of negligent misrepresen-
tation). "Where the cause of action is predicated on an alleged breach,
or even negligent breach, of a contract between the parties, an action
in tort will not lie." Foxfire Village, Inc. v. Black & Vetach, Inc., 404
S.E.2d 912, 917 (S.C. Ct. App. 1991). Because fraud, constructive
fraud, negligence and negligent misrepresentation are all causes of
action in tort, they do not lie in this contract dispute and the district
court correctly did not send them to the jury.

A district court may properly grant judgment notwithstanding the
verdict "[w]hen the evidence is such that without weighing the credi-
bility of the witnesses there can be but one reasonable conclusion as
to the verdict." Brady v. S. Ry. Co., 320 U.S. 476, 479-80 (1943).
Conversely, when the evidence permits multiple reasonable conclu-
sions, the district court must permit the finder of fact to speak and
deny a motion for judgment notwithstanding the verdict.

The plaintiff presented evidence at trial that it had not accepted the
goods. Nevertheless, the defendant presented evidence to support a
contrary conclusion. The defendant presented evidence that the indi-
vidual Machines were received and made operational and that the
Distributors were not sent because the plaintiff failed, after the State
of Mississippi approved the machines, to provide the information
required for programming the unit before shipment.

The plaintiff claimed in the alternative that even if it had accepted
the goods, it properly rejected or revoked their acceptance by return-
ing to the defendant the Machines and the Distributor that it had
received. The defendant presented evidence that the goods were not
returned until more than one year after their original shipment and
that it was holding the goods for the plaintiff. In addition, the defen-
dant presented testimony that alleged phone conversations in which
the plaintiff contended it registered complaints about the machines
either did not or could not have occurred.

In light of the conflicting evidence, the facts are susceptible to
more than one interpretation. The jury rejected the plaintiff's conten-
tions. Viewing the evidence in the light most favorable to the defen-

                     4
dant, there is substantial evidence in the record to support the jury
verdict. Therefore, we are of opinion that the district court properly
denied the plaintiff's motion for judgment notwithstanding the ver-
dict.

The district court has discretion to grant or deny a new trial. Bristol
Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th
Cir. 1994). We have previously observed that the district court's deci-
sion "is not reviewable upon appeal, save in the most exceptional cir-
cumstances." Aetna Cas. & Sur. Co. v. Yeatts , 122 F.2d 350, 354 (4th
Cir. 1941).

Plaintiff claims that the district court abused its discretion because
the verdict was against the clear weight of the evidence, and the jury
failed to follow the court's instructions. As previously discussed, we
are of opinion that the jury's verdict was not against the clear weight
of the evidence because the evidence was susceptible to more than
one reasonable interpretation. In addition, mere questioning by the
jury about why someone did not testify does not necessarily indicate
that the absence of such testimony was improperly considered by the
jury in contravention of the district court's instructions. When the jury
asked the court why a particular employee of the defendant did not
testify, the court responded, without objection, that she was not called
as a witness. There is no evidence that the jury made any inference,
for or against either side, from the witness not testifying.

Neither of these alleged defects were "so grievous as to have ren-
dered the trial unfair." DMI, Inc. v. Deere & Co., 802 F.2d 421, 427
(Fed. Cir. 1986). Accordingly, we conclude that the district court did
not abuse its discretion in denying a new trial.

The judgment of the district court is accordingly

AFFIRMED.

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