                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1572


DONALD A. SIMMONS; LESLIE SIMMONS,

                Plaintiffs - Appellants,

          v.

DANHAUER & ASSOCIATES LLC,

                Defendant,

          and

PROXIBID, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.      J. Michelle Childs, District
Judge. (8:08-cv-03819-JMC)


Submitted:   March 30, 2012                 Decided:   April 13, 2012


Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Denny P. Major, Henry D. Sellers, HAYNSWORTH SINKLER BOYD, P.A.,
Greenville, South Carolina, for Appellants.      W. Howard Boyd,
Jr., Thomas E. Vanderbloemen, Adam C. Bach, GALLIVAN, WHITE &
BOYD, P.A., Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Donald and Leslie Simmons appeal the district court’s

grant of summary judgment against them in this diversity action.

The case stems from an online auction hosted by Proxibid, Inc.,

(“Proxibid”), in which Lee Danhauer, of Danhauer & Associates

LLC    (“Danhauer”),         served    as       both     auctioneer      and    bidder.

Although    the    Simmonses      sued      both       Proxibid    and    Danhauer   on

numerous grounds, on appeal they challenge the district court’s

grant of summary judgment to Proxibid as to only the following

claims:    violation     of    South   Carolina’s         Unfair    Trade      Practices

Acts (“UTPA claim”), S.C. Code Ann. §§ 39-5-10 to 39-5-360 (1985

& Supp. 2011) (“SCUTPA”); aiding and abetting Danhauer’s breach

of    fiduciary    duty       (“fiduciary        duty     claim”);       and   tortious

interference      with   a    contract      (“tortious      interference       claim”).

We affirm.

            We review de novo a district court’s order granting

summary judgment.            See Robinson v. Clipse, 602 F.3d 605, 607

(4th Cir. 2010).         Summary judgment shall be granted when “there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”                          Fed. R. Civ. P.

56(a).     “At the summary judgment stage, facts must be viewed in

the light most favorable to the nonmoving party only if there is

a genuine dispute as to those facts.”                   Scott v. Harris, 550 U.S.

372, 380 (2007) (internal quotation marks omitted).

                                            3
                             I. UTPA claim.

            To establish a claim under SCUTPA, 1 the Simmonses were

required to demonstrate that Proxibid engaged in an unfair or

deceptive act or practice in the conduct of trade or commerce

and that such conduct affects the public interest.             Hollman v.

Woolfson,   683   S.E.2d   495,   499   (S.C.   2009).   The   challenged

conduct must have been the proximate cause of a loss of “money

or property, real or personal,” thus entitling the Simmonses to

recover actual damages.       S.C. Code Ann. § 39-5-140.          Upon a

careful review of the record, we find that the numerous theories

and allegations the Simmonses have put forward in support of

their UTPA claim fail to establish a material issue of fact. 2

            First, to the extent that they rely on allegations of

an arrangement or collusion between Proxibid and Danhauer to

drive up auction prices, the Simmonses have failed to produce

evidence aside from the coincidence of Proxibid and Danhauer’s

joint benefit from higher sale prices.            Although Proxibid may



     1
       To the extent that the Simmonses’ UTPA claim was grounded
in North Carolina law, they have not pressed the issue on
appeal.
     2
       For the first time on appeal, the Simmonses allege that
Proxibid assured them that it would do its best to enable them
to secure the items on which they were bidding at the lowest
price possible. This new allegation is not properly before us
and need not be considered.  See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993).



                                    4
have     failed         to        proactively            prevent       Danhauer’s        allegedly

fraudulent       actions          or    realize          that    its   policies       created      the

potential for such abuse, negligence or incompetence alone is

insufficient           to    establish          an       unfair       or     deceptive      practice

sufficient to support a claim under SCUTPA.                                     See Clarkson v.

Orkin    Estimating          Co.,       761    F.2d       189,    190-91      (4th    Cir.   1985);

Wright v. Craft, 640 S.E.2d 486, 500 (S.C. Ct. App. 2006).

               Furthermore, the Simmonses have not established that

Proxibid’s challenged conduct was a proximate cause of their

alleged damages.              See Collins Holding Corp. v. Defibaugh, 646

S.E.2d 147, 150 (S.C. Ct. App. 2007); Baggerly v. CSX Transp.,

Inc., 635 S.E.2d 97, 101 (S.C. 2006).

               Nor     have       the    Simmonses          produced         competent      evidence

that Proxibid’s challenged conduct impacts the public interest.

There    is    no     showing          that    Proxibid         has    previously      engaged     in

actions       similar        to    those       complained         of    or    will    continue      to

engage    in     such        conduct.           See      Daisy    Outdoor       Advert.      Co.    v.

Abbott, 473 S.E.2d 47, 52 (S.C. 1996); Schnellmann v. Roettger,

627 S.E.2d 742, 746 (S.C. Ct. App. 2006).                                  Mere speculation of

an     adverse       public        impact,          or    speculation         that   the     alleged

wrongdoer still engages in the same business, is insufficient to

establish        the    potential             for    repetition.              See    Omni    Outdoor

Advert. v. Columbia Outdoor Advert., 974 F.2d 502, 507 (4th Cir.



                                                     5
1992); Jefferies v. Phillips, 451 S.E.2d 21, 23 (S.C. Ct. App.

1994).



                            II. Fiduciary duty claim.

             To establish a claim for aiding and abetting a breach

of fiduciary duty under South Carolina law, the Simmonses were

required to       produce    evidence       indicating        (1)    the   breach       of   a

fiduciary duty       owed     to     the     them,      (2)     Proxibid’s        knowing

participation in the breach, and (3) resulting damages.                             Vortex

Sports & Entm’t, Inc. v. Ware, 662 S.E.2d 444, 448 (S.C. Ct.

App.     2008).      Because       “the     gravamen     of     the      claim    is     the

defendant’s       knowing    participation        in    the   fiduciary’s        breach,”

actual knowledge of duty and subsequent breach is required.                              Id.

(internal quotation marks omitted); see also Gordon v. Busbee,

__ S.E.2d __, 2012 WL 89641, at *5 (S.C. Ct. App. 2012).

             Assuming       for    the     sake    of    argument        that    Danhauer

breached a fiduciary duty owed to the Simmonses, the Simmonses

have   not   established          Proxibid’s      knowledge         of   that    duty    and

breach by using the presumption that persons are charged with

knowledge of the law.              Presumed knowledge of the law, with no

accompanying evidence of actual knowledge, is insufficient under

South Carolina law to establish actual notice or knowledge.                              See

Labruce v. North Charleston, 234 S.E.2d 866, 867 (S.C. 1977);

Strother v. Lexington Cnty. Recreation Comm’n, 479 S.E.2d 822,

                                            6
826 (S.C. Ct. App. 1996).               Accordingly, as the Simmonses point

to    no   other    evidence      of    Proxibid’s       knowledge          of    Danhauer’s

alleged duty or breach, summary disposition of their fiduciary

duty claim was proper.



                     III. Tortious interference claim.

             Under South Carolina law, a viable claim for tortious

interference with contractual relations requires proof of (1)

the    existence     of    a     contract,        (2)    the    alleged          wrongdoer’s

knowledge of the contract, (3) an intentional and unjustified

interference       resulting      in    a    breach     of    the   contract,       and    (4)

damages.      Eldeco,      Inc.    v.       Charleston       County    Sch.      Dist.,    642

S.E.2d     726,    731   (S.C.    2007).          Generally,        where    there    is    no

evidence suggesting that the actions of the alleged tortfeasor

were motivated by anything other than a pursuit or fulfillment

of his own contractual rights with a third party, there can be

no    finding      of     intentional          interference           with       contractual

relations.        See Southern Contracting v. Brown Constr. Co., 450

S.E.2d 602, 604-06 (S.C. Ct. App. 1994).

             Here, assuming a valid contract between the Simmonses

and Danhauer, we find that the Simmonses have failed to produce

evidence of Proxibid’s intent to interfere with that contract

sufficient to survive summary judgment.                        Without more, we can



                                              7
find   no    error    in   the   district          court’s    judgment    in    favor    of

Proxibid.

              In light of our above conclusions, it is unnecessary

for us to address the district court’s determination regarding

Proxibid’s     immunity     under        the    Communications        Decency    Act,    47

U.S.C.      § 230    (2006).        We   affirm      the     district    court’s    order

granting summary judgment in favor of Proxibid.                               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




                                               8
