                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-1352


FAT BOY, LLC,

                Plaintiff - Appellant,

          v.

KCS INTERNATIONAL, INCORPORATED, d/b/a Cruisers Yachts,

                Defendant/Third Party Plaintiff - Appellee,

          and

CAPE FEAR YACHT SALES OF NORTH CAROLINA,

                Defendant,

          and

BRUNSWICK CORPORATION,

                Third Party Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cv-04000-DCN)


Submitted:   January 18, 2012              Decided:   January 31, 2012


Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.
Paul V. Degenhart, DEGENHART & DEGENHART LAW, LLC, Columbia,
South Carolina, for Appellant. David B. Marvel, PRENNER MARVEL,
P.A., Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Fat Boy, LLC (“Fat Boy”) brought an action against KCS

International,          Inc.        (“KCS”)     for     breach       of    contract      and

rescission,        breach      of     express      warranty,        breach    of     implied

warranties, and negligence.                   On appeal, Fat Boy challenges the

district court’s decision to grant KCS judgment as a matter of

law on its breach of contract claim.                          We have reviewed the

record and find no reversible error.                   Accordingly, we affirm.

             In October 2004, George M. Lee, III, the sole member

of   Fat    Boy,       purchased        a     2004    455     Cruisers       Motor     Yacht

manufactured by KCS from Cape Fear Yacht Sales (“Cape Fear”).

The yacht was covered by the Cruisers Yachts Limited Warranty

(“Limited Warranty”).               Lee was dissatisfied with the yacht and

complained       to    KCS     of    water     leaks,    floating         bulkheads,     and

difficulty shutting the doors.                  As a result, Lee sent the yacht

to   the   KCS     factory      a    number     of    times    for    repair,      and   KCS

ultimately agreed to replace the 2004 yacht with a 2006 model,

at no cost to Lee.                  The 2006 yacht was also covered by the

Limited Warranty.

             In 2007, Lee experienced numerous problems with the

2006 yacht, complaining to KCS of extensive water leaks, rust

spots,     doors      that   would     not     shut   properly,       a    malfunctioning

generator,       and    a    broken    DVD     player.        KCS    provided      warranty

service on the 2006 yacht, including two service trips to the

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KCS factory, at no cost to Fat Boy or Lee.                        Thereafter, Lee

demanded that KCS repurchase the 2006 yacht.                    When KCS refused,

Lee filed the instant lawsuit against KCS and Cape Fear. ∗

            At the close of Fat Boy’s case, KCS moved for judgment

as a matter of law as to all claims.               The district court granted

KCS’s    motion    with   respect     to   Fat   Boy’s    claims    of    breach       of

contract    and    breach   of   implied       warranties,      finding    that       the

alleged oral contract failed to satisfy the Statute of Frauds,

and the Limited Warranty contained a valid disclaimer excluding

all implied warranties.          Following a three-day trial, the jury

found that KCS had not breached its express warranty.                       Fat Boy

appeals only that portion of the court’s order that granted KCS

judgment as a matter of law on its breach of contract claim.

            We review the grant of a motion for judgment as a

matter of law de novo, and view the facts in the light most

favorable    to    the    nonmoving     party.      A    Helping   Hand,        LLC   v.

Baltimore Cnty., 515 F.3d 356, 365 (4th Cir. 2008).                       “Judgment

as a matter of law is proper only if there can be but one

reasonable conclusion as to the verdict.”                 Ocheltree v. Scollon

Prods.,    Inc.,    335   F.3d   325,      331   (4th    Cir.   2003)     (en    banc)

(internal quotation marks and citation omitted).                   “Such a motion


     ∗
       Cape Fear subsequently became insolvent and was dismissed
from the case.



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is properly granted if the nonmoving party failed to make a

showing on an essential element of his case with respect to

which he had the burden of proof.”                Wheatley v. Wicomico Cnty.,

390 F.3d 328, 332 (4th Cir. 2004) (internal quotation marks and

citation omitted); see Fed. R. Civ. P. 50(a)(1).

            On appeal, Fat Boy argues that the district court’s

ruling was erroneous because KCS failed to plead the Statute of

Frauds as an affirmative defense as required by Fed. R. Civ. P.

8(c), thereby waiving the defense.                     However, Fat Boy did not

present this claim before the district court, and issues raised

for the first time on appeal generally will not be considered.

See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993);

Nat’l    Wildlife    Fed.   v.     Hanson,      859    F.2d   313,    318    (4th    Cir.

1988).     Exceptions to this rule are made only in very limited

circumstances,      such    as     where    refusal      to   consider      the   newly-

raised issue would constitute plain error or would result in a

fundamental miscarriage of justice.                    Muth, 1 F.3d at 318.            We

find that such exceptional circumstances do not exist, and Fat

Boy has waived appellate review of this issue.

            Fat Boy next contends that the district court erred in

dismissing    its    breach      of    contract       claim   because      the    alleged

transaction falls within an exception to the Statute of Frauds.

According    to     Fat   Boy,     the     contract     at    issue   satisfies       the

exception    set    forth     in      Section   36-2-201(3)(b)        of    the     South

                                            5
Carolina    Statute         of    Frauds,    which       provides     that    “a    contract

which   does     not      satisfy     the    requirements       of    [the     Statute    of

Frauds]    but      which    is    valid     in   other     respects     is    enforceable

. . . if a party against whom enforcement is sought admits in

his pleading, testimony or otherwise in court that a contract

was made.”       S.C. Code Ann. 36-2-201(3)(b) (1976).                       In support of

this contention, Fat Boy first cites testimony by Lee himself:

“Jim Viestenz agreed to buy me a new boat, and it was his call.”

Fat Boy also points to the testimony of KCS representative Ken

Hayes in response to a question by plaintiff’s counsel.                              Counsel

inquired of Hayes, “I believe your testimony was that when Mr.

Lee was dissatisfied with the 2004 model, that you replaced it

with a two year newer model.                  Is that correct?”, to which Hayes

responded, “Yes.”

            We find Fat Boy’s argument to be meritless.                            Fat Boy’s

reference to Lee’s testimony that an oral contract existed is

ill-advised,        as      Section       36-2-201(3)(b)        plainly       contemplates

admission      of    an     oral    contract        by    the   “party       against    whom

enforcement is sought,” not the party seeking to enforce the

oral contract.            Moreover, Hayes’s testimony merely establishes

that KCS agreed to replace the 2004 yacht with a newer model

pursuant to the manufacturer’s express warranty.                              Fat Boy does

not   allege     that       KCS    otherwise        “admitted    in    [its]       pleading,

testimony      or    otherwise       in     court    that   a   contract       was    made.”

                                              6
Accordingly, we find that the district court did not err in

awarding KCS judgment as a matter of law as to Fat Boy’s breach

of contract claim.

           We   affirm   the   judgment   of   the   district   court.     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




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