UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BIZMARK, INCORPORATED, d/b/a Wells,
Waters & Gases,
Plaintiff-Appellant,
                                                               No. 98-1787
v.

THE KROGER COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CA-96-219-B)

Argued: January 26, 1999

Decided: April 2, 1999

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Joseph Harvey Roberts, JOE ROBERTS, P.C., Wise, Vir-
ginia, for Appellant. Francis Hewitt Casola, WOODS, ROGERS &
HAZLEGROVE, P.L.C., Roanoke, Virginia, for Appellee. ON
BRIEF: Scott A. Johnson, WOODS, ROGERS & HAZLEGROVE,
P.L.C., Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Bizmark, Incorporated appeals a judgment of the district court
entered in Bizmark's favor against The Kroger Company (Kroger) in
the amount of $15,157.14. We affirm.

I.

The parties commenced their dealings in 1990, when Bizmark
began providing helium to several of Kroger's stores on a trial basis.*
After a successful trial period, the parties entered into an agreement
under which Bizmark would sell helium and carbon dioxide and rent
storage tanks to all of the stores in Kroger's Mid-Atlantic Region.

In 1994, Bizmark began experiencing problems filling Kroger's
orders in a timely fashion, prompting a number of Kroger's stores to
purchase helium and carbon dioxide from other vendors. Kroger ter-
minated its relationship with Bizmark in May 1995 and requested that
Bizmark pick up its tanks immediately.

Bizmark brought this action for money that it maintained it was
owed for unpaid helium and carbon dioxide sales and unpaid tank
rentals. Bizmark contended that subsequent to the parties' initial
negotiations, Kroger had agreed to a price increase and to pay late
fees when payment was not made within thirty days of delivery. Biz-
mark also sought to recover for tanks it claimed remained in Kroger's
possession.

After a bench trial, the district court found that Kroger never
_________________________________________________________________
*Kroger's original dealings were with Bizmark's predecessor, Wells,
Waters, & Gases. For ease of reference, we will refer to both companies
as "Bizmark."

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agreed to accept a price increase or pay late fees and calculated the
amount Kroger owed using the terms originally agreed to by the par-
ties. With respect to Bizmark's claim that Kroger had not returned a
number of its tanks, the district court concluded that Bizmark had
failed to prove the necessary elements for breach of a bailment con-
tract.

II.

Bizmark contends that the district court erred in calculating the
amount Kroger owed it for helium and carbon dioxide sales and tank
rentals, in concluding that Bizmark failed to prove its claim that
Kroger did not return a number of its tanks, and in deciding several
issues of which Bizmark did not have proper notice. Having had the
benefit of oral argument and the parties' briefs, and after careful con-
sideration of the record and the applicable law, we conclude that the
district court correctly decided the issues before it. Accordingly, we
affirm on the reasoning of the district court. See Bizmark, Inc. v.
Kroger Co., No. 96-0219-B (W.D. Va. May 5, 1998).

AFFIRMED

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