UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY WHITFIELD, d/b/a Whitfield 

Realty,

Plaintiff-Appellant,

v.

JOHN BOURNE COMPANY; JOHN

BOURNE, JR.; JOHN BOURNE, III;

MARY BOURNE BOS; DPS

ASSOCIATES OF CHARLESTON,

INCORPORATED, a/k/a ReMax

Professional Realty; DAVID WERTAN;

FRED RICE; BULWINKLE REAL ESTATE

COMPANY, INCORPORATED; CARSON J.

BULWINKLE; MERYL BULWINKLE;

LETTY PARRISH; FIRST COASTAL  No. 99-1010

PROPERTIES; MORRIS BOURNE; MORRIS

BOURNE ASSOCIATES; CANDACE N.

PRATT;

Defendants-Appellees,

and

UNITED STATES OF AMERICA,

Movant-Appellee,

and

EVE OLASOV,

Defendant.

GEORGE VESSELL,

Movant. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Solomon Blatt, Jr., Senior District Judge.

(CA-94-939-2-8)
Argued: September 28, 2000

Decided: July 26, 2001

Before NIEMEYER and MICHAEL, Circuit Judges, and

Frederick P. STAMP, Jr., Chief United States District Judge

for the Northern District of West Virginia,

sitting by designation.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Kerry Warren Koon, Charleston, South Carolina, for

Appellant. William Howell Morrison, MOORE & VAN ALLEN,

P.L.L.C., Charleston, South Carolina, for Appellee. ON BRIEF:

Rebecca Guental Fulmer, Desa Ann Rice Ballard, DESA BALLARD,

P.A., West Columbia, South Carolina, for Appellant. Richard C.

Burke, MOORE & VAN ALLEN, P.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Unpublished opinions are not binding precedent in this circuit.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: 

Appellant Anthony Whitfield ("Whitfield") brings this appeal pursuant to 28 U.S.C. § 1291 (1986). Appellant Whitfield, doing business as Whitfield Realty, brought this action in April 1994 against

John Bourne Company, John Bourne, Jr., John Bourne, III, Mary

Bourne Bos, DPS Associates of Charleston, Incorporated a/k/a

2 WHITFIELD v. JOHN BOURNE COMPANY
ReMax Professional Realty ("ReMax"), David Wertan, Fred Rice,

Bulwinkle Real Estate Company, Incorporated, Carson J. Bulwinkle,

Meryl Bulwinkle, Letty Parrish, First Coastal Properties, Morris

Bourne, Morris Bourne Associates, Candace N. Pratt and the United

States of America (collectively referred to as "appellees"), alleging

that the appellees have engaged in a variety of activities constituting

unfair trade practices, antitrust violations, negligence and conspiracy

resulting in an unfair and illegal manipulation of the process of resale

of properties previously repossessed by the Department of Veterans

Affairs. 

On appeal, appellant Whitfield alleges that the district court committed reversible error when it granted summary judgment to all

appellees on the basis of its ruling that Whitfield’s evidence of damages was too speculative to support a jury verdict. Appellant also

appeals the grant of summary judgment by the district court to all

appellees on the claim for civil conspiracy on the basis of its ruling

that Whitfield was required to demonstrate that the appellees conspired for the purposes of injuring Whitfield in particular and on

Whitfield’s cause of action seeking injunctive relief under the Sherman Antitrust Act. Appellant also appeals the grant of summary judgment in favor of ReMax, David Wertan, Fred Rice, Letty Parrish,

First Coastal Properties, Morris Bourne, Morris Bourne Associates,

and Candace Pratt (collectively "referral appellees") on the unfair

trade practices claim on the basis of its ruling that Whitfield has failed

to demonstrate that the actions of those appellees were capable of repetition and on the negligence claim on the grounds that those appellees owed Whitfield no duty. Further, Whitfield alleges that the

district court erred in failing to require appellees John Bourne Company and Bulwinkle Real Estate Company to disclose their customers

who purchased homes from the Department of Veterans Affairs, in

failing to require appellees David Wertan and Fred Rice to produce

their personal bank account records, and in granting the motion by the

United States Department of Veterans Affairs to quash appellant’s

subpoena for records pertaining to the investigation of Property Management Brokers by the Office of Inspector General. Appellees

respond that the district court committed no reversible error when it

granted summary judgment in favor of the appellees and that the district court did not abuse its discretion in denying Whitfield’s discovery requests. For the reasons stated below, we affirm. 

WHITFIELD v. JOHN BOURNE COMPANY 3
I.

The Department of Veterans Affairs ("DVA") is involved in the

resale of properties because, as a benefit to veterans, the DVA will

often cosign a note with a veteran enabling the veteran to obtain

financing to purchase real estate. If the veteran defaults on the note,

the DVA will satisfy the mortgage and acquire title to the real estate.

The DVA then attempts to resell the property. When properties are

acquired by the DVA, they are assigned to the supervision of various

property management brokers ("PM brokers"). The PM brokers provide the DVA with many services, including securing, winterizing,

maintaining, and preparing the properties for resale. The PM brokers

also deal with subcontractors who do various inspections and repairs

as directed by the DVA. In addition, the PM brokers provide the DVA

with a valuation opinion of the property that assists the DVA in setting the asking price for the property. Although the PM brokers are

compensated for the services they provide to the DVA, they are also

real estate companies or professionals and are able to earn commissions on real estate transactions handled successfully for their real

estate clients. 

After a property is prepared for sale, the DVA "lists" the property

for sale by newspaper advertisement. The listing is the first announcement to other realtors and to the public of the availability and price

of the property. After the listing, the DVA accepts purchase offers for

a limited time, often ten days. The highest bidder purchases the property subject to DVA approval and the minimum price. During the

offer period, any licensed real estate professional can submit an offer

to the DVA on behalf of a prospective purchaser. Upon closing of the

sale, the real estate professional representing the successful purchaser

earns up to a six percent sales commission paid by the DVA. PM brokers are permitted to seek to earn the DVA-paid commission by representing purchasers for properties under their management, subject

to certain rules. 

Appellees John Bourne Company and Bulwinkle Real Estate Company ("appellee PM brokers") have served as PM brokers in three

South Carolina counties since 1987, except for the period from April

1, 1993 until October 1, 1994 when the John Bourne Company had

the exclusive contract. While the John Bourne Company had the

4 WHITFIELD v. JOHN BOURNE COMPANY
exclusive contract, it issued a memorandum to all real estate brokers

in the tri-county area, including appellant Whitfield, advising them of

the contract with the DVA. The property management contract

between the DVA and the John Bourne Company contained the following provision: 

The contractor [the John Bourne Company], members of

his/her business organization and member of his/her immediate family or household are prohibited from selling VA

properties managed under this contract during the first fifteen days of initial listing. 

Additionally, the contract included an "anti-kickback" provision that

prohibited the contractor [PM broker] from receiving things of value

from any person providing services under their contract with any subcontractors or prospective subcontractors. "Subcontractor" is defined

as any person other than the contractor "who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind

under a prime contract or a subcontract" entered into with the contractor. 

Appellant Whitfield is a real estate broker that specializes in the

resale of DVA properties, as well as in the resale of other government

properties, including properties under the management of the Department of Housing and Urban Development ("HUD") and the Home

Owners Assistance Program ("HAP"). Appellant alleges that the PM

brokers, in the course of performing their duties, acquired confidential

information concerning DVA properties that was not readily available

to Whitfield or to other real estate professionals competing in the

market. Appellant further alleges that this confidential information

gave the PM brokers an inherent advantage and that the John Bourne

Company and Bulwinkle Real Estate Company used such "insider

information" to the detriment of the appellant and other realtors in the

Charleston area. Specifically, appellant alleges that John Bourne

Company and Bulwinkle Real Estate Company disclosed confidential

information on matters from pest inspections to system checks calculated to allow their clients a better opportunity than others to present

a winning bid. Appellant also alleges that the appellee PM brokers

posted unauthorized signs on DVA properties advertising the appellee

PM brokers’s own services as sales representatives, showed properWHITFIELD v. JOHN BOURNE COMPANY 5
ties to prospective purchasers prior to the listing of those properties

in violation of DVA policy, and, in at least one case, represented the

existence of a secret contract in the DVA office through which confidential information could be obtained. Moreover, appellant alleges

that the John Bourne Company entered into improper agreements that

referred confidential information and clients to the referral appellees

for fees in violation of the contract with the DVA and to the detriment

of appellant. 

Appellant Whitfield alleges that this unfair competition cost him

business and profits and, therefore, appellant brought this civil action

against the appellees in the district court. The district court granted a

stay so that arbitration could be pursued, but vacated that stay when

it became apparent that arbitration was not possible. Appellant filed

an amended complaint and a second amended complaint. During the

course of discovery, appellant sought the names of those purchasing

DVA properties through the John Bourne Company and Bulwinkle

Real Estate Company and the personal bank account records from

certain referral appellees, but those discovery requests were denied by

the district court. Appellees then filed motions for summary judgment. The district court granted summary judgment to all appellees

on appellant’s causes of action for civil conspiracy, under the Sherman Act Sections I and II, for Sherman Act injunctive relief, under

RICO, and for breach of fiduciary duty. The district court also granted

summary judgment on appellant’s causes of action for negligence and

for violation of the South Carolina Unfair Trade Practices Act

("SCUTPA") in favor of referral appellees. The district court also

granted all appellees summary judgment on the grounds "that the

Plaintiff’s evidence of damages proximately resulting from the

alleged conduct of any Defendant was entirely speculative and could

not serve as the basis of a jury verdict in this case." The district court

also granted the government’s amended motion to quash a subpoena

for records of the DVA office of the Inspector General. Finally, the

district court denied appellant’s motion to alter or amend the judgment. Appellant timely filed his notice of appeal before this Court. 

II.

On appeal, a district court’s decision to grant summary judgment

is subject to de novo review. See Sheppard & Enoch Pratt Hosp., Inc.

6 WHITFIELD v. JOHN BOURNE COMPANY
v. Travelers Ins. Co., 32 F.3d 120, 123 (4th Cir. 1994); Myers v.

Finkle, 950 F.2d 165, 167 (4th Cir. 1991). 

Under Federal Rule of Civil Procedure 56(c), summary judgment

is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment bears the initial burden of showing the

absence of any issues of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). However, as the United States Supreme

Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986), Rule 56(e) itself provides that "a party opposing a properly

supported motion for summary judgment ‘may not rest upon the mere

allegations or denials of [the] pleading, but . . . must set forth specific

facts showing that there is a genuine issue for trial.’" "The inquiry

performed is the threshold inquiry of determining whether there is the

need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either party." Id.

at 250; see also Charbonnages de France v. Smith, 597 F.2d 406, 414

(4th Cir. 1979) (Summary judgment "should be granted only where

it is perfectly clear that no issue of fact is involved and inquiry into

the facts is not desirable to clarify the application of the law." (citing

Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.

1950))). In reviewing the supported underlying facts, all inferences

must be viewed in the light most favorable to the party opposing the

motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). 

A.

Appellant Whitfield contends that the district court erred when it

granted summary judgment on the basis of its ruling that Whitfield’s

evidence of damages was too speculative to support a jury verdict.

Whitfield argues that the evidence proves that he lost commission

income of at least $347,500.00 between 1987 and 1996. Appellant

also argues, in the alternative, that his loss can be reasonably calculated at $167,500.00 under a more conservative method. Appellant

Whitfield further contends that he lost at least $89,998.00 in promoWHITFIELD v. JOHN BOURNE COMPANY 7
tional expenditures in competing for sales of DVA properties that

were sold through the wrongful activities of the appellees. Appellant

argues that, because the appellees’ wrongful conduct has limited his

ability to prove damages, he should be held to a lower standard of certainty when proving damages. Appellees respond that appellant’s evidence of damages is speculative because it is predicated upon

assumptions and questionable probabilities. Appellees further argue

that appellant’s evidence of damages is flawed because of several factors, including fluctuation in the markets, failure to account for spikes

in the number of home sales due to military base closings, and the flat

assumption that each sale made by the appellees in the markets came

at the direct expense of Whitfield. Moreover, appellees assert that

appellant has misconstrued applicable case law and the "reasonable

certainty" standard. 

The most recent clarification of South Carolina’s standard for

recovery of lost profits comes in Global Prot. Corp. v. Halbersberg,

503 S.E.2d 483 (S.C. Ct. App. 1998). The Global court reiterated: 

The law does not require absolute certainty of data upon

which lost profits are to be estimated, but all that is required

is such reasonable certainty that damages may not be based

wholly upon speculation and conjecture, and it is sufficient

if there is a certain standard or fixed method by which profits sought to be recovered may be estimated and determined

with a fair degree of accuracy. 

Id. at 487 (citing Beck v. Clarkson, 387 S.E.2d 681, 684 (S.C. Ct.

App. 1989) (quoting South Carolina Fin. Corp. of Anderson v. West

Side Fin. Co., 113 S.E.2d 329 (S.C. 1960))). The crucial requirement

is that lost profits be "established with reasonable certainty." South

Carolina Fin. Corp., 113 S.E.2d at 336. The Global court also found:

Proof may be established through expert testimony, economic and financial data, market surveys and analyses, business records of similar enterprises, comparison with profit

performance of businesses similar in size, nature and location, comparison with profit history of plaintiff’s successor,

comparison of similar business owned by plaintiff himself,

8 WHITFIELD v. JOHN BOURNE COMPANY
and use of economic and financial data and expert testimony. 

503 S.E.2d at 487 (citing Drews Co. v. Ledwith-Wolfe Assocs., 371

S.E.2d 532 (S.C. 1988)). South Carolina courts have referred to the

method of proving profits by comparing businesses similar in size,

nature, and location as the "yardstick" method. See Drews Co., 371

S.E.2d at 536. 

Appellant Whitfield asserts that his lost income in the DVA market

may be measured by the "yardstick" method by comparing the parties’ performances in the HAP and HUD markets. Appellant Whitfield has testified that the DVA, HAP and HUD sales programs are

similar in that: (1) the purpose of each is to facilitate the resale of

homes by a government agency; (2) homes are sold on the limited initial bid period (ten or twenty days) with a first-come-first-served procedure after that initial bid period; (3) each program pays similar rates

of commission (five percent or six percent) with the entire commission going to the selling broker and (4) each program keeps repair and

pest inspection reports confidential from bidders. Whitfield offers

several facts in support of his calculation of losses: 

(1) During 1993 and 1994, when only the Bourne Company served as PM broker, Bulwinkle’s sales declined from

60 properties in 1992 to 23 properties in 1993 and to 21

properties in 1994. Once Bulwinkle was reinstated as a PM

broker in 1995, Bulwinkle’s sales increased to 51 for 1995.

(2) In the HUD and HAP programs in which appellant

alleges Bourne and Bulwinkle companies enjoyed no advantage, Whitfield sold 81 homes from 1993 until 1998, while

Bulwinkle sold 19 homes and Bourne sold seven homes for

the same period. In the HUD program, Whitfield sold 20

HUD homes, Bulwinkle sold 18 homes and Bourne sold six

homes in total for the years 1992, 1995, 1996 and 1997. 

(3) From 1987 to 1995, in the DVA program, Bulwinkle

sold 286 DVA homes and Whitfield sold 147 homes. 

WHITFIELD v. JOHN BOURNE COMPANY 9
Based upon that information, appellant Whitfield estimates that he

lost at least 139 sales over the period and, at an average commission

of $2,500.00 per sale, he lost $347,500.00 in commission income.

Appellant contends that on the basis of these market comparisons, a

jury could reasonably conclude that but for the appellees’ unfair activities in selling DVA properties, Whitfield’s DVA sales would have at

least equaled the DVA sales of Bulwinkle and Bourne. Applying the

"yardstick" method, appellant believes that a reasonable jury could

find that he lost $347,500.00 in commission income between 1987

and 1996. 

Applying the reasonable certainty test, this Court cannot find that

appellant Whitfield has presented evidence of damages that could

support a jury verdict. A "yardstick" comparison between the DVA,

the HUD and the HAP markets does not allow this Court to reasonably calculate damages. Although the markets are in a similar location, they are of a different size and nature that make them difficult

to compare. Moreover, appellant has not considered and accounted

for the differences inherent in the markets in his comparison. Appellant makes general comparisons between the number of sales in the

DVA, HAP and HUD markets, but the disparity in sales numbers

could be explained by many reasons other than any unfair practices

by appellees in the DVA market. Appellant has failed to establish any

way in which the efforts and performance of appellant and the appellees in their respective markets were comparable. Moreover, the disparity in sales is not necessarily attributed to the actions of appellees.

There are other realtors and agencies involved in the sale of properties

and it is not a viable assumption that each and every sale by the appellees worked to the disadvantage and at the expense of appellant. 

Although appellant relies on Global as an example of market comparisons, the facts in that case were different. In Global, a manufacturer of condoms was permitted to compare sales in two nearly

identical markets to show the losses it sustained when another company distributed glow in the dark condoms, an identical product, in

wrapping identical to that of the plaintiff. 503 S.E.2d at 487. In the

Global case, the markets were nearly identical because both comprised large coastal vacation destinations. Additionally, the nearly

identical nature of the products on the market permitted an easier

comparison as well. 

10 WHITFIELD v. JOHN BOURNE COMPANY
Even if the "yardstick" method applied in this case, appellant’s

numbers and estimates do not prove damages to a reasonable certainty. Statistics are not sufficient alone to establish damages in this

case. See Palmetto State Med. Ctr., Inc. v. Operation Lifeline, 117

F.3d 142, 149 (4th Cir. 1997) (finding evidence of damages to be

speculative and insufficient as a matter of law to establish financial

losses without an inquiry into the correlation between statistics and

the conduct of a defendant). Moreover, appellant relies on a handwritten chart detailing DVA sales commissions and estimated loss of market share from the alleged unfair practices. Appellant Whitfield

admitted at his deposition that the document was put together quickly

and may be flawed and based on certain estimates. This Court also

questions the use of the statistics to demonstrate loss of expected market share because it is difficult to determine whether appellant Whitfield would have gained a measurable amount of market share had

there been no referral agreements in place. 

In the alternative, appellant Whitfield also seeks to prove lost profits by comparing the profit history of similar businesses that he has

conducted. Accordingly, Whitfield points to his involvement in the

HAP market. During appellant Whitfield’s three and one half year

experience in the HAP market, he had an average of 23 HAP sales

per year, but averaged only 16.3 DVA sales per year between 1987

and 1996. Appellant believes that under "conservative" methodology,

that evidence demonstrates that he should have a larger number of

sales in the DVA market and that he lost at least $167,500.00 in commission income due to the unfair conduct of appellees. 

The comparison of the profit history of Whitfield’s involvement in

the HAP market does not establish damages to a reasonable certainty.

Appellant Whitfield’s three and one half year experience with the

HAP market, although similar in sales procedure to that of the DVA

market, is not comparable because of fluctuation in the real estate

market and the influence of the glut of housing placed on the market

due to the Charleston naval base closure. Moreover, on a base level,

statistics from a three and one half year specialized market with fluctuations are too tenuous to compare to the ten-year DVA market. 

Appellant also seeks recovery for lost profits and loss of benefit of

promotional expenditures. Whitfield asserts that he lost $23,023.00

WHITFIELD v. JOHN BOURNE COMPANY 11
for advertising and $3,225.00 for courier services, postage, express

mail, and credit report fees in submitting offers on properties. Appellant further asserts that he has lost money for photographing properties and for long distance telephone calls as well as the benefit of his

own time invested in training agents who left his employ as a result

of the improper conduct of the PM brokers which he values in excess

of $63,750.00. Again, appellant cites the Global case in which the

court held that an award of lost profits was not the full measure of

Global’s damages and permitted promotional costs and costs associated with developing and marketing its product. 503 S.E.2d at 488. As

the appellees point out, however, Global involved a trademark

infringement and the Global court’s determination that "recoverable

damages include compensation for all injury to plaintiff’s property or

business which is the nature and probable consequence of defendant’s

wrong" is limited to trademark infringement cases. Id. Because appellant has presented this Court with no authority supporting the extension of South Carolina law governing the relatively narrow field of

recoverable trademark infringement damages to the instant facts,

appellees are still entitled to summary judgment on this issue. 

Finally, appellant argues that he was "hampered" in his proof of

damages by the wrongful conduct of the appellees and that he should

be held to a lesser standard. Appellant relies on Minter v. Goct, Inc.,

473 S.E.2d 67 (S.C. Ct. App. 1996). In Minter, this Court stated:

Where the wrongful act of the defendant is of such nature

as to prevent determination of the exact amount of damages,

the defendant is not allowed to insist on absolute certainty,

but only that the evidence show lost profits by reasonable

inference.

Id. at 70 (quoting 22 Am. Jur. 2d Damages § 177 (1965)). Although

that case permitted an inference of damages, that holding is not at

odds with determining damages by a "reasonable certainty" but reaffirms that each case should be considered on an individual basis.

Minter also reiterates that "while proof with mathematical certainty is

not required, the amount of damages cannot be left to conjecture,

guess, or speculation." Id. In this case, appellant has not been able to

prove damages to a reasonable degree of certainty and much has been

12 WHITFIELD v. JOHN BOURNE COMPANY
left to conjecture, guess and speculation. Accordingly, this Court

upholds summary judgment in favor of all appellees. 

B.

Appellant Whitfield also contends that the district court erred when

it granted summary judgment to appellees on the claim for civil conspiracy on the basis of its ruling that Whitfield was required to demonstrate that appellees conspired for the purpose of injuring Whitfield

in particular. Under South Carolina law:

Civil conspiracy . . . consists of three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage. 

Lee v. Chesterfield Gen. Hosp., Inc., 344 S.E.2d 379, 382 (S.C. Ct.

App. 1986). Moreover, "[a] conspiracy is actionable only if overt acts

pursuant to the common design proximately cause damage to the

party bringing the action." Future Group, II v. Nationsbank, 478

S.E.2d 45, 51 (S.C. 1996). 

Although appellant Whitfield contends that South Carolina law

does not require that a defendant have the specific intent to injure a

particular plaintiff in civil conspiracy, appellant has presented this

Court with no supporting South Carolina authority. Instead, appellant

cites antitrust cases, such as Blue Shield of Virginia v. McCready, 457

U.S. 465 (1982), for the proposition that a plaintiff does not have to

prove he is the "target" of a conspiracy. This Court does not find

appellant’s attempt to parallel antitrust law and South Carlina conspiracy law to be persuasive, particularly in light of the plain language of

various South Carolina cases holding that the purpose of a civil conspiracy must be "injuring the plaintiff thereby causing him special

damage." Future Group, 478 S.E.2d at 50 (emphasis added). Moreover, South Carolina case law reflects that there must be specific

intent to injure a particular plaintiff. Id. at 51 (finding that a civil conspiracy claim could not be maintained against defendant, in part,

because defendant did not even know of plaintiff’s existence in relation to its actions); Lee, 344 S.E.2d at 382-83 (examining cases in

which primary purpose or object of conspiracy was to injure particuWHITFIELD v. JOHN BOURNE COMPANY 13
lar plaintiff). Therefore, this Court upholds the grant of summary

judgment on this issue. 

C.

Appellant Whitfield contends that the district court erred in granting summary judgment to referral appellees on the unfair trade practices claim on the basis of its ruling that Whitfield has failed to

demonstrate that the actions of the referral appellees were capable of

repetition. Under South Carolina law, an unfair trade practice must

have adverse affects on the public interest. See Daisy Outdoor Adver.

Co. v. Abbott, 473 S.E.2d 47, 49 (S.C. 1996). One method of showing

an adverse affect on the public interest is by proof that the unfair

practice has a potential for repetition. Id.; Haley Nursery Co. v. Forrest, 381 S.E.2d 906, 908 (S.C. 1989). A party may argue that an

action is capable of repetition: 

(1) by showing the same kind of actions occurred in the

past, thus making it likely they will continue to occur absent

deterrence, or (2) by showing the company’s procedures

create a potential for repetition of the unfair and deceptive

acts. 

Daisy Outdoor, 473 S.E.2d at 51 (cites omitted); see Crary v. Djebelli, 496 S.E.2d 21, 23 (S.C. 1998). Those are not, however, the only

means for showing potential repetition and each case must be evaluated on its own merits. Id.

Although appellant argues that the alleged referrals and "kickbacks" in this case occurred far more frequently than the two "similar

acts" in Daisy Outdoor, this Court does not find that appellant has

established that appellees’ alleged acts have an adverse affect on the

public interest. In Daisy Outdoor, the two incidents in which a billboard was blocked by a competitor’s billboard clearly showed a

potential for repetition and a likelihood that such actions may occur

in the future absent deterrence. 473 S.E.2d at 51. In this case, even

if this Court accepted that there were multiple instances of referrals

and kickbacks, appellant has not shown that such unfair practices

would continue absent deterrence or that any company’s procedures

created a potential for repetition of the alleged unfair and deceptive

14 WHITFIELD v. JOHN BOURNE COMPANY
acts. The referral agreement complained of by appellant has expired

and the rules governing DVA homes have been changed to preclude

such arrangements in the future. Although there may be other methods to show adverse affect on the public interest or other methods to

show a potential for repetition, appellant has not presented this Court

with any evidence that would lead this Court to find that appellant has

properly alleged an unfair trade practices claim against referral appellees. Accordingly, this Court upholds the grant of summary judgment

on this issue. 

D.

Appellant Whitfield contends that the district court erred in granting summary judgment to referral appellees on the negligence claim

on the ground that they owed no duty to Whitfield. Appellant argues

that he can maintain a negligence action against the referral appellees

because the referral appellees have a duty to him arising from their

referral contract with John Bourne Company. Specifically, appellant

contends that there was a genuine issue of fact that it was foreseeable

that the referral agreement would proximately cause harm to appellant

Whitfield. 

The question of whether a defendant owes a duty, the breach of

which may constitute negligence, is, however, a question of law, not

of fact. See Araujo v. Southern Bell Tel. and Tel. Co., 351 S.E.2d 908,

910 (S.C. 1986). In this case, appellant Whitfield is not a party to any

contract between referral appellees and John Bourne Company and

there is no statute from which a duty could conceivably arise. Moreover, this Court cannot find that Whitfield is a third-party beneficiary

of any referral agreement. Although appellant does argue that this

Court could construe a duty based upon the forseeability of harm to

him under these circumstances, appellant has presented this Court

with no supporting authority. Rather, the cases cited by appellant in

support of extending a duty of care involved special relationships

between parties that are significantly different than the relationship

between the parties in this case.* In the absence of cited authority,

*In Jensen v. Anderson County Dep’t of Soc. Servs., 403 S.E.2d 615

(S.C. 1991), the South Carolina court dealt with the narrow area of child

WHITFIELD v. JOHN BOURNE COMPANY 15
appellant has not persuaded this Court to take action that would

define a new duty under negligence law. Accordingly, this Court

upholds the grant of summary judgment on this issue. 

E.

Finally, appellant alleges that the district court erred in granting

summary judgment on Whitfield’s cause of action seeking injunctive

relief under the Sherman Antitrust Act. Section 16 of the Clayton Act,

15 U.S.C. § 26, empowers a court of the United States to grant injunctive relief against threatened loss or damage caused by a violation of

the "antitrust laws." See T.S. Alphin v. Henson, 552 F.2d 1033, 1034

n.1 (4th Cir. 1977). Antitrust law is defined by the Clayton Act to

include the Sherman Act. Id. at 1034. Although appellant argues that

the record discloses sufficient evidence to create a genuine issue of

material fact as to threatened injury, this Court does not find that

appellant has shown reoccurring or repetitive acts of anti-competitive

activity or the threat of such activity that would support an injunction.

Accordingly, this Court upholds the award of summary judgment to

all appellees on this issue. 

III.

When reviewing a district court’s discovery rulings, this Court has

held that:

If the claim is of error in underlying factfinding which

infected the ultimate decision, review must proceed under

the clearly erroneous standard; if of error of law infecting

the ultimate decision, under the de novo review standard.

Only if the claim of error goes exclusively to the impropriwelfare cases and an assumed public duty by officials involved in such

cases. Barker v. Sauls, 345 S.E.2d 244 (S.C. 1986), permitted an

employee to sue his employer’s insurance broker regarding coverage that

had a direct affect on the employee. Finally, appellant cites Terlinde v.

Neely, 271 S.E.2d 768 (S.C. 1980), which dealt with the extension of

warranties on a property. 

16 WHITFIELD v. JOHN BOURNE COMPANY
ety of an ultimate exercise of available discretion is review

solely under the abuse of discretion standard. 

See Watson v. Lowcountry Red Cross, 974 F.2d 482, 485 (4th Cir.

1992) (citing United Food & Commercial Workers v. Marval Poultry

Co., 876 F.2d 346, 351 (4th Cir. 1989)). 

A.

Appellant Whitfield alleges that the district court erred in failing to

require appellee PM brokers to disclose the identity of purchasers of

DVA properties sold by them during the relevant period, particularly

given the district court’s ruling on damages. Appellant Whitfield

sought the names of the individuals who had purchased DVA properties through the appellee PM brokers so that appellant could determine whether those purchasers had received "insider information"

concerning the DVA properties that enabled them to submit a winning

bid. Appellant also argues that the information would enable him to

collect more information regarding any wrongdoing on behalf of

appellees and to more exactly determine and prove damages. Appellees resisted appellant’s attempt to discover such information and

argued that appellant had presented no need for that information and

no proof of damages that would permit appellant to discover such

information or that would outweigh the privacy interests of the appellees and their clients. The district court extensively examined the discovery issues during several hearings. After weighing the prejudice

and privacy interests of the appellees against the possible prejudice to

the appellant, the district court determined that such information was

not discoverable because there would be prejudice to appellees in disclosing the names and because appellant had made no showing of

injury. 

On appeal, appellant again argues that he requires the purchasers’

names to verify that appellees committed the unfair acts alleged in the

complaint. Appellant also argues that the information would be necessary at trial to assist in showing damages. Appellees respond that

appellant has raised no issue or facts on appeal that would reveal an

abuse of discretion on the part of the district court. 

This Court cannot find that the district court abused its discretion

or committed any error. Although appellant cites Palmetto State Med.

WHITFIELD v. JOHN BOURNE COMPANY 17
Ctr., Inc. v. Operation Lifeline, 117 F.3d 142 (4th Cir. 1997), in support of his argument that the district court’s ruling was extremely

prejudicial in light of the district court’s holding that appellant’s evidence of damages was too speculative to support a jury verdict, that

case is inapposite. Although the Palmetto case discusses the necessity

of certain witnesses, the case does not address discovery or discovery

disputes. Appellant has presented this Court with no authority nor

with any argument that the district court abused its discretion or that

the district court erred in any way. Accordingly, the district’s court

decision not to permit discovery of the purchasers’ names is affirmed.

B.

Appellant Whitfield asserts that the district court erred in failing to

require appellees, David Wertan and Fred Rice, to produce their personal bank account records. Because a memorandum was circulated

reminding various appellee real estate agents that all referral fees

should be deposited in appropriate accounts, appellant sought to discover those personal bank account records to determine whether some

referral fees did not go through the appropriate accounts. The district

court held a hearing with the parties and addressed the matter. Appellees argued that such discovery was unnecessary and intrusive based

upon other discovery that had been completed by the appellant. The

district court did not permit the discovery of the bank accounts

because it determined that there were less intrusive means to discover

the information. 

On appeal, appellant contends that the discovery of bank account

records is a routine matter and necessary in this case. Appellant

alleges that he has been prejudiced by the district court’s decision

because his ability to prove injury and resulting damages has been

curtailed. Again, appellees respond that appellant has produced no

facts or issues on appeal that reveal or address any abuse of discretion

on the part of the district court. 

After examining the hearing transcript, this Court cannot find that

the district court abused its discretion or erred in any manner. The

memorandum reminding appellees about appropriate deposit of fees

is not necessarily evidence that there had been inappropriate deposits.

Moreover, appellant deposed certain witnesses who stated that no fees

18 WHITFIELD v. JOHN BOURNE COMPANY
were channeled into inappropriate accounts, that appellant possessed

canceled checks revealing the appropriate deposit of the fees, and that

appellant could seek additional canceled checks for verification.

Appellant was permitted several avenues to determine whether any

fees were deposited into inappropriate accounts and has not shown

that he was unduly prejudiced. The district court was not in error and

did not abuse its discretion when it defined the bounds of discovery

on this issue. Therefore, the district court’s ruling prohibiting discovery of the bank account records is affirmed. 

C.

In appellant Whitfield’s statement of issues presented for review,

appellant alleges that the district court erred in granting the amended

motion of the DVA to quash appellant’s subpoena for records of the

DVA Office of Inspector General’s investigation of property management brokers. This issue is not, however, reflected in the table of contents and is not discussed in the text of appellant’s brief, appellees’

brief or appellant’s reply brief. Although this Court notes that the district court addressed this issue during the February 25, 1998 hearing

with the parties, this Court will not address the merits of this issue

because it has not been argued by the parties.

AFFIRMED

WHITFIELD v. JOHN BOURNE COMPANY 19