UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

K. BRENT JOHNSON,
Plaintiff-Appellee,

v.                                                                 No. 98-2087

WAL-MART STORES, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-97-1367-2-18)

Argued: April 6, 1999

Decided: May 19, 1999

Before WILKINSON, Chief Judge, and WILKINS and
HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Arthur Edward Justice, Jr., TURNER, PADGET, GRA-
HAM & LANEY, P.A., Florence, South Carolina, for Appellant. Ste-
phen Victor Futeral, FINKEL & ALTMAN, L.L.C., Charleston,
South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Wal-Mart Stores, Inc. (Wal-Mart) appeals the district court's denial
of its motion for a new trial, see Fed. R. Civ. P. 59(a), after the district
court entered judgment in favor of K. Brent Johnson on his South
Carolina state law claim of false imprisonment. For the reasons that
follow, we affirm.

I.

At approximately 11:00 P.M. on October 17, 1996, Johnson, who
is a paraplegic, drove to a Wal-Mart store in Georgetown, South Car-
olina, to go shopping. In the parking lot of the Georgetown Wal-Mart,
Johnson saw Wesley Lambert, with whom he was acquainted. John-
son greeted Lambert, and the two entered the Georgetown Wal-Mart
together. Johnson and Lambert spoke briefly inside the Georgetown
Wal-Mart and then proceeded to shop separately.

Later that night, as Johnson was in the check-out line paying for
a bottle of soda and a bag of potato chips, Lambert attempted to leave
the Georgetown Wal-Mart. Margaret Miller, an employee of the
Georgetown Wal-Mart who was standing at the front of the store, dis-
covered that Lambert was shoplifting Wal-Mart merchandise and pre-
vented him from leaving the store. According to Johnson, after Miller
detained Lambert, she called for security and instructed Johnson not
to leave the store. John Kent, the assistant store manager, came to the
front of the store and took Lambert away. Then, at the front of the
store, in the presence of other shoppers, Miller inquired as to whether
Johnson had any Wal-Mart merchandise for which he had not paid
and asked to search Johnson's pockets. Further, Miller commanded
Johnson to raise himself up from his wheelchair so that she could look
beneath him for any Wal-Mart merchandise for which he had not
paid. No such Wal-Mart merchandise was found. After this search,

                     2
according to Johnson, he was escorted by a Wal-Mart security guard
to the back of the store where Kent had taken Lambert.

In a back room of the Georgetown Wal-Mart, Kent questioned
Lambert and Johnson and directed the security guard to search John-
son. Again, no Wal-Mart merchandise for which Johnson had not paid
was found on Johnson's person. Then, after being summoned by the
Georgetown Wal-Mart, Officer James Burke of the Georgetown
Police Department arrived. According to Officer Burke, Kent directed
him to search Johnson. Although no Wal-Mart merchandise for which
Johnson had not paid was found on Johnson's person by Officer
Burke, Kent instructed Officer Burke to inform Johnson that he was
no longer welcome at the Georgetown Wal-Mart.

Several weeks after this incident, Johnson again attempted to enter
the Georgetown Wal-Mart, at which time he was stopped by Officer
Burke and informed that he would be arrested if he did not leave the
Georgetown Wal-Mart's property. Johnson testified that he returned
to the Georgetown Wal-Mart due to the hardship of commuting to
other stores to do his shopping.

Wal-Mart's witnesses, Miller and Kent, gave completely different
accounts than those given by Lambert, Johnson, and Officer Burke.
Miller testified that she never detained Johnson in the front of the
store and did not search him. In fact, Miller testified that when Lam-
bert was detained, Johnson spontaneously spread his feet apart, put
his hands on his wheelchair, and pushed himself up while declaring
that he did not have any Wal-Mart merchandise for which he had not
paid and Miller could search him if she wanted. Like Miller, Kent tes-
tified that he did not detain or direct the security guard to search John-
son. According to Kent, Johnson asked if he could come to the back
of the store with Lambert. Moreover, Kent denied that he asked any-
one, including Officer Burke, to search Johnson. Finally, Kent denied
that he told Officer Burke that Johnson was not allowed back in the
Georgetown Wal-Mart.

On April 3, 1997, Johnson filed this action against Wal-Mart in the
Court of Common Pleas for Georgetown County, South Carolina,
claiming under South Carolina law: (1) false imprisonment; (2)
assault; (3) battery; (4) slander; and (5) outrage. Johnson sought both
compensatory and punitive damages. Wal-Mart removed the action to

                     3
the United States District Court for the District of South Carolina. See
28 U.S.C. § 1441(a).

A jury trial was held in the district court on May 13 and 14, 1997.
Johnson voluntarily withdrew his assault claim and, after Johnson
rested his case, the district court dismissed Johnson's outrage claim.
After the close of all the evidence, but before submission of the case
to the jury, Wal-Mart moved for judgment as a matter of law on the
remaining three claims: slander, false imprisonment, and battery. See
Fed. R. Civ. P. 50(a). The district court withheld ruling on Wal-
Mart's motion, see Fed. R. Civ. P. 50(b), and sent the three remaining
claims to the jury. The district court instructed the jury on the remain-
ing three claims as well as nominal, actual, and punitive damages.
The district court then provided the jury with a general verdict form
that contained a series of special interrogatories. Neither party
objected to the general verdict form or the special interrogatories.

The jury returned a verdict in favor of Johnson on his false impris-
onment and slander claims, but found in favor of Wal-Mart on John-
son's battery claim. The jury then awarded actual and punitive
damages to Johnson. The actual damages part of the general verdict
form stated:

          If you found for the Plaintiff on his false imprisonment
          claim, please continue to Question 8 and enter an amount in
          either 8(A) or 8(B). If you found for the Plaintiff on any of
          his other claims, please continue to Question 9.

(J.A. 16). Special interrogatory 8(A) provided only for nominal dam-
ages for Johnson's false imprisonment claim. Special interrogatory
8(B) asked: "What is the total amount of actual damages to which K.
Brent Johnson is entitled as the result of his false imprisonment
claim?" Id. The jury responded to special interrogatory 8(B) and
awarded Johnson $15,860 in actual damages for his false imprison-
ment claim. Special interrogatory 9 of the general verdict form asked:
"What is the total amount of actual damages that will fairly compen-
sate K. Brent Johnson for his injury." Id. In response to this special
interrogatory, the jury awarded Johnson $3,420 for his slander claim,
the only other claim on which Johnson prevailed.

The punitive damages part of the general verdict form stated: "If
you awarded K. Brent Johnson any amount of nominal or actual dam-
ages, please continue to Question 10." Id. (emphasis in original). Spe-

                     4
cial interrogatory 10 asked: "Did [Johnson] prove by clear and
convincing evidence that Wal-Mart, Inc.'s actions were willful, wan-
ton or reckless?" Id. The jury answered this special interrogatory in
the affirmative. The general verdict form continued:"If you answered
"YES" to Question 10, please continue to Question 11." (J.A. 17). In
response to special interrogatory 11, the jury awarded Johnson
$38,000 in punitive damages. The jury was then dismissed, without
objection by Wal-Mart.

After the jury was dismissed, the district court conducted a hearing
on the subject of punitive damages. During the hearing, Wal-Mart
objected to the punitive damages award and complained to the district
court that the jury's responses to special interrogatories 8(B) and 9
were irreconcilable. The district court noted on the record that, in
view of its responses to special interrogatories 8(B) and 9, the jury
seemed confused by the general verdict form. The district court,
believing that it was following South Carolina law: (1) entered judg-
ment for Johnson only for the amount of actual damages awarded by
the jury on the false imprisonment claim in its response to special
interrogatory 8(B), $15,860, plus the $38,000 in punitive damages;
and (2) granted Wal-Mart's motion for judgment as a matter of law
on Johnson's slander claim, thereby vacating the jury's verdict in
favor of Johnson on that claim.

On May 26, 1998, Wal-Mart moved for a new trial under Federal
Rule of Civil Procedure 59(a) or, in the alternative, to amend the
judgment under Federal Rule of Civil Procedure 59(e). On June 23,
1998, the district court denied Wal-Mart's motion for a new trial or,
in the alternative, to amend the judgment. Wal-Mart noticed this
timely appeal.

II.

On appeal, Wal-Mart claims that the district court erred when it
denied Wal-Mart's motion for a new trial under Federal Rule of Civil
Procedure 59(a) because: (1) the jury's answers to special interrogato-
ries 8(B) and 9 were inconsistent and cannot be reconciled; and (2)
the district court's dismissal of Johnson's slander claim created an
ambiguity in the jury's punitive damages award. The decision to grant
or deny a new trial under Federal Rule of Civil Procedure 59(a) is

                    5
within the sound discretion of the district court and should not be
reversed by this court absent an abuse of discretion. See Cline v. Wal-
Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).

A.

Wal-Mart first argues that the jury's answers to special interrogato-
ries 8(B) and 9 were inconsistent and cannot be reconciled and that,
accordingly, Wal-Mart is entitled to a new trial. We disagree.

The actual damages part of the general verdict form stated:

          If you found for the Plaintiff on his false imprisonment
          claim, please continue to Question 8 and enter an amount in
          either 8(A) or 8(B). If you found for the Plaintiff on any of
          his other claims, please continue to Question 9.

(J.A. 16) (emphasis added). Special interrogatory 8(A) only pertained
to nominal damages for Johnson's false imprisonment claim. Special
interrogatory 8(B) asked: "What is the total amount of actual damages
to which K. Brent Johnson is entitled as the result of his false impris-
onment claim?" Id. The jury responded to special interrogatory 8(B)
and awarded Johnson $15,860 in actual damages for his false impris-
onment claim.

Special interrogatory 9 of the general verdict form asked: "What is
the total amount of actual damages that will fairly compensate K.
Brent Johnson for his injury." Id. In response to special interrogatory
9, the jury awarded Johnson $3,420 in actual damages for his "other
claims," id., the only other claim being Johnson's slander claim. By
the explicit terms of the general verdict form's instructions, special
interrogatory 9 asked the jury to provide damages in special interroga-
tory 9 only if it found for Johnson on any of his claims other than his
false imprisonment claim. The jury followed this explicit, unambigu-
ous instruction and awarded Johnson $3,420 in actual damages for his
slander claim in addition to the $15,860 in actual damages it awarded
Johnson for his false imprisonment claim. Because special interroga-
tory 8(B) asked the jury to specify its damage award for Johnson's
false imprisonment claim and special interrogatory 9 asked the jury

                    6
to specify its damage award for Johnson's slander claim (having
found in favor of Wal-Mart on Johnson's battery claim), we conclude
that special interrogatories 8(B) and 9 are not inconsistent nor are the
jury's answers to them.

Wal-Mart argues that the jury's answers to special interrogatories
8(B) and 9 are inconsistent because special interrogatory 9 asked the
jury to specify the total amount of actual damages for all of Johnson's
claims on which he prevailed. According to Wal-Mart, because the
award of actual damages on special interrogatory 8(B) exceeded the
award of actual damages on special interrogatory 9, the jury's
answers are inconsistent. Wal-Mart's argument fails because special
interrogatory 9 did not ask the jury to specify the total amount of its
damage award. Rather, as noted above, by its unambiguous, explicit
terms, special interrogatory 9, when read in conjunction with the gen-
eral verdict form's instructions, asked the jury to specify its damage
award for any of Johnson's claims other than his false imprisonment
claim.

B.

Wal-Mart also argues that the district court's entry of judgment as
a matter of law in favor of Wal-Mart on Johnson's slander claim cre-
ated an ambiguity in the jury's punitive damages award that entitled
Wal-Mart to a new trial. More specifically, Wal-Mart argues that,
because the jury could have premised its award of punitive damages
solely on a finding that Wal-Mart's slander of Johnson was wilful,
wanton, or reckless (and not on a finding that Wal-Mart's false
imprisonment of Johnson was wilful, wanton, or reckless), the puni-
tive damages award is ambiguous and must be redetermined in a new
trial on punitive damages. We reject Wal-Mart's argument for the
simple reason that the district court's entry of judgment as a matter
of law in favor of Wal-Mart on Johnson's slander claim created no
ambiguity in the jury's award of punitive damages.

Following the trial, the jury found in favor of Johnson on his false
imprisonment and slander claims, awarded him actual damages on
those two claims, and awarded him punitive damages on a finding
that Wal-Mart's conduct was wanton, wilful, or reckless. The district
court entered judgment as a matter of law in favor of Wal-Mart on the

                    7
slander claim, not on the ground of insufficiency of the evidence, but
rather on the perhaps mistaken ground that, under South Carolina law,
to allow Johnson to recover damages for both his false imprisonment
and slander claims would effect a double recovery. See Harper v.
Ethridge, 348 S.E.2d 374, 378-80 (S.C. Ct. App. 1986) (holding that,
under South Carolina law, plaintiff can plead in the alternative but
cannot receive a double recovery). Accordingly, this case does not
involve one where the appellate court reverses one claim on appeal
based upon insufficiency of the evidence and is left to speculate
whether the jury based its general punitive damages award on another
claim with sufficient evidentiary support in the appellate record. See
Barber v. Whirlpool Corp., 34 F.3d 1268, 1278 (4th Cir. 1994) (hold-
ing that where one of plaintiff's claims is reversed on appeal due to
insufficient evidence and the other is upheld, defendant is entitled to
new trial on punitive damages where jury did not specify which claim
supported the punitive damages award). Like Barber, this case
involves a verdict in favor of the plaintiff on two claims and a puni-
tive damages award in which the jury did not specify which of the
two claims (or both) supported the punitive damages award. How-
ever, in contrast to Barber, both of Johnson's claims are supported by
substantial evidence in the record and both claims, individually and
collectively, support the punitive damages award tendered by the jury.
Because neither Johnson's false imprisonment claim, nor his slander
claim, are infirm due to insufficient evidence, the district court's dis-
missal of Johnson's slander claim to avoid a double recovery under
South Carolina law carried no legal significance except to the extent
that it extinguished Johnson's actual damages award for his slander
claim. In short, no ambiguity in the jury's finding that Johnson was
entitled to $38,000 in punitive damages for Wal-Mart's wanton, wil-
ful, or reckless conduct was created by the district court's entry of
judgment as a matter of law in favor of Wal-Mart on Johnson's slan-
der claim.

III.

For the reasons stated herein, we affirm the district court's denial
of Wal-Mart's motion for a new trial under Federal Rule of Civil Pro-
cedure 59(a).

AFFIRMED

                    8
