UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOPAKCO FOODS, A Division of
So-Pak-Co, Incorporated,
Plaintiff-Appellee,

v.

DOLPHUS E. POWERS,                                 No. 98-2086
Defendant-Appellant,

v.

JOHN CALABRESE,
Third Party Defendant.

SOPAKCO FOODS, A Division of
So-Pak-Co, Incorporated,
Plaintiff-Appellee,

v.

DOLPHUS E. POWERS,                                 No. 98-2522
Defendant-Appellant,

v.

JOHN CALABRESE,
Third Party Defendant.

Appeals from the United States District Court
for the District of South Carolina, at Florence.
Patrick Michael Duffy, District Judge.
(CA-97-1989-4-23)

Argued: November 30, 1999

Decided: January 7, 2000
Before MICHAEL and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas R. Goldstein, BELK, COBB, CHANDLER &
GOLDSTEIN, P.A., Charleston, South Carolina, for Appellant. Hen-
rietta Urbani Golding, BELLAMY, RUTENBERG, COPELAND,
EPPS, GRAVELY & BOWERS, P.A., Myrtle Beach, South Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

On July 2, 1997, Sopakco Foods ("Sopakco") brought this diversity
action in the United States District Court for the District of South Car-
olina. Sopakco's sole claim was based on a personal guaranty signed
in June 1995 by Dolphus E. Powers ("Powers"), one of two share-
holders of Miami Ice Coffee, Inc. ("Miami Ice Coffee"), a seller of
an iced coffee drink. Sopakco manufactured and produced the bever-
age for Miami Ice Coffee and Powers guaranteed that the company
would purchase a minimum of ten million units of the beverage on
or before June 1, 1997. Miami Ice Coffee failed to make the required
purchases and Sopakco sought to hold Powers liable under the guar-
anty for the remainder of the unsold units, totaling approximately
$145,000.

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Powers did not contest signing the guaranty, but brought a counter-
claim for civil conspiracy against Sopakco for allegedly conspiring
with John Calabrese ("Calabrese"), the other shareholder of Miami
Ice Coffee. The crux of Powers' counterclaim was that unbeknownst
to him, Calabrese began negotiating with representatives of Sopakco
for the sale of Miami Ice Coffee's assets and these surreptitious nego-
tiations led to the downfall of Miami Ice Coffee. Of course, when
Powers informed Sopakco that he was still involved in the operations
of Miami Ice Coffee, Sopakco began negotiating with both sharehold-
ers, but no sale of assets occurred.

After discovery, Powers and Sopakco filed cross-motions for sum-
mary judgment. The district court found that the parties' memoranda
adequately addressed the relevant issues and pursuant to Local Rule
7.08 the court decided the motions without a hearing.* The court
granted Sopakco's motion for summary judgment, but denied Powers'
motion. In its cogent June 5, 1998 order, the district court concluded
that Powers was liable on the guaranty because he admitted signing
it and did not raise any affirmative defenses in his answer. As for the
conspiracy counterclaim, the district court held that the evidence pres-
ented merely showed that once Sopakco learned that Powers
remained active in Miami Ice Coffee, Sopakco included Powers in the
negotiations. Because the original order granting summary judgment
for Sopakco failed to specify the amount of judgment, the district
court later amended the order to provide Sopakco with a judgment
against Powers of $145,290.12, together with legal interest. The dis-
trict court also granted Sopakco's petition for attorney fees, and
denied Powers' motion for reconsideration. This appeal followed.

Upon review of the briefs and the record, and after consideration
of oral arguments, we find no reversible error. Accordingly, we affirm
on the reasoning of the district court. See Sopakco Foods v. Powers,
No. 4:97-1989-23 (D.S.C. June 5, 1998).

AFFIRMED
_________________________________________________________________

*Powers' objection to summary judgment on the ground that he was
not permitted to submit a particular affidavit fails for two reasons. First,
the affidavit was cumulative to the deposition testimony presented. Sec-
ond, the affidavit was untimely filed under the district court's local rules.

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