                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1208



VERONA SMITH; JULIUS K. CALDWELL; GEORGANN S.
CALDWELL,

                                          Plaintiffs - Appellants,

          versus


UNITED RECOVERY, INCORPORATED; UNITED LEASING,
INCORPORATED, a Virginia Corporation; EDWARD
H. SHIELD, an individual,

                                           Defendants - Appellees.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (5:03-cv-00036)


Submitted:   January 11, 2007             Decided:   March 21, 2007


Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lawrence A. Melfa, Samuel M. Grant, BUTLER, MELFA & TAYLOR, P.A.,
Towson, Maryland, for Appellants. Robert B. Allen, Pamela C. Deem,
Teresa K. Thompson, ALLEN, GUTHRIE, MCHUGH & THOMAS, P.L.L.C.,
Charleston, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

            This case arises out of allegations of unauthorized

removal of coal and timber from a 2,134-acre tract of land owned by

the plaintiffs in Raleigh County, West Virginia.           The plaintiffs

appeal the district court’s grant of judgment as a matter of law to

defendants United Recovery, Inc. and Edward Shield following a jury

verdict in favor of the plaintiffs. The plaintiffs also appeal the

district court’s grant of summary judgment to the defendants on the

claim that United Recovery’s corporate veil should be pierced to

impose liability on defendants United Leasing, Inc. and Shield.

Finding no error, we affirm.



                                     I.

            In January 2002 United Recovery entered into an option

agreement with the plaintiffs to buy the tract of land that is the

subject of this dispute.        United Recovery later agreed to a coal

lease on the property with RAR Construction Company.         RAR obtained

a leasehold interest in any rights United Recovery possessed in the

property, and the lease obligated RAR to pay royalties on any coal

mined.    Although United Recovery had not exercised its option to

purchase, RAR moved onto the property to resume reclamation work

abandoned by a prior mining company.          Plaintiff Julius Caldwell

witnessed RAR’s activities and objected to the company’s presence.

After    conversations   with    United   Recovery   and   RAR   officials,


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Caldwell agreed to allow RAR to continue its work if RAR paid

royalties for any coal removed. RAR consented to this arrangement.

United Recovery ultimately decided not to exercise its option to

purchase the property.

            The plaintiffs sued United Recovery, its sister company,

United Leasing, and Shield for trespass and conversion allegedly

committed by RAR.    The plaintiffs contended that RAR was an agent

of the defendants, making them liable for RAR’s actions.                    The

district court granted summary judgment to United Leasing and

Shield on the plaintiffs’ claim that United Recovery was a mere

instrumentality of United Leasing and Shield.           The district court

allowed the conversion and trespass claims to proceed to trial

against   United   Recovery   and   Shield,    and    the   jury   returned   a

$197,891.99 verdict in favor of the plaintiffs. The district court

subsequently   granted   United     Recovery    and   Shield’s     motion   for

judgment as a matter of law, concluding that the evidence was

insufficient to support the verdict.           The plaintiffs appeal both

the summary judgment and the judgment as a matter of law.



                                    II.

            The plaintiffs’ main argument is that the district court

erred in granting the defendants’ motion for judgment as a matter

of law.   We review de novo a trial court’s decision to grant such

a motion.    See Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279


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(4th Cir. 1999).      Judgment as a matter of law is warranted when “a

reasonable jury would not have a legally sufficient evidentiary

basis to find for the party” presenting an issue at trial.               Fed. R.

Civ. P. 50(a).        The evidence is considered in the light most

favorable to the non-moving party.             Conner v. Schrader-Bridgeport

Int’l, Inc., 227 F.3d 179, 192 (4th Cir. 2000).

            The plaintiffs did not sue RAR, the entity that actually

conducted the reclamation work on their property.                 The plaintiffs

thus sought to recover from United Recovery and Shield on an agency

theory.     An agency relationship exists when a contract or conduct

establishes    that   an   entity   or       individual    is   controlled   by   a

principal and works for the benefit of the principal.                 1 Michie’s

Jurisprudence, Agency § 2.      An agent has no individual interest in

the subject of the agency and does not profit from the relationship

beyond any compensation offered by the principal.                  Central Trust

Co. v. Virginia Trust Co., 197 S.E. 12, 19 (W. Va. 1938).

            The district court correctly concluded that there was

insufficient evidence of an agency relationship between United

Recovery and Shield, on the one hand, and RAR, on the other, to

sustain a jury verdict in the plaintiffs’ favor.                 The plaintiffs’

evidence failed to establish (1) the requisite control by United

Recovery and Shield over RAR’s actions or (2) the absence of a

profit motive for RAR in the relationship.                The coal lease relied

upon   by    the   plaintiffs   sets     forth     a   typical     lessor-lessee


                                         4
relationship and does not contain any directions of the sort that

would   show   an   intent   to    establish    an   agency   relationship.

Moreover, the events following plaintiff Caldwell’s discovery of

RAR on the property do not support a finding that RAR was subject

to the control and direction of United Recovery or Shield. Shield,

as an officer of United Recovery, told RAR and Caldwell to resolve

the problem themselves. This evidence reveals that United Recovery

and Shield were not exercising control over RAR’s actions.               The

plaintiffs also failed to prove that RAR was acting for the benefit

of United Recovery or Shield.       If the lease had taken effect, RAR

would have profited from its mining activities independent of any

compensation from United Recovery or Shield.            RAR was obligated

only to pay a royalty as rent; it could retain any profit.

           The plaintiffs also failed to produce evidence to support

their alternative theory that United Recovery and Shield were joint

tortfeasors with RAR.    An entity or person will be held liable for

the tort of another if it or he acted at the same time for a

similar purpose or engaged in some form of concerted action.             See

Harless v. First Nat’l Bank, 289 S.E. 2d 692, 699 (W. Va. 1982).

The evidence in this case shows only a potential landlord-tenant or

lender-borrower     relationship    between    United   Recovery   and   RAR.

United Recovery and Shield did not participate in or direct any of

the activities asserted to be tortious.




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          Because the plaintiffs did not prove (1) that RAR was

acting as the agent of United Recovery or Shield or (2) that United

Recovery or Shield participated in a joint tortious act with RAR,

the district court did not err in granting United Recovery and

Shield’s motion for judgment as a matter of law.



                              III.

          Our determination that there is no liability on the part

of United Recovery and Shield moots the plaintiffs’ claim that

United Recovery’s corporate veil should be pierced to impose

liability on United Leasing and Shield.

                              * * *

          The district court’s order of summary judgment and the

judgment as a matter of law are

                                                         AFFIRMED.




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