UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PROJECT CONTROL SERVICES, 

INCORPORATED,

Plaintiff-Appellant,

v.  No. 01-1352

WESTINGHOUSE SAVANNAH RIVER

COMPANY, INCORPORATED,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of South Carolina, at Aiken.

Cameron McGowan Currie, District Judge.

(CA-98-3738-1-22)

Argued: February 27, 2002

Decided: May 21, 2002

Before WIDENER and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Karl Frederick Dix, Jr., SMITH, CURRIE & HANCOCK, L.L.P., Atlanta, Georgia, for Appellant. Michael Anthony

Scardato, MCNAIR LAW FIRM, P.A., Charleston, South Carolina,

for Appellee. ON BRIEF: Robert L. Widener, MCNAIR LAW

FIRM, P.A., Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

The present diversity action stems from a dispute between two

companies that had a contractor/subcontractor relationship, which

relationship was based upon numerous subcontracts between them.

Westinghouse Savannah River Company (WSRC) was the contractor,

and Project Control Services, Inc. (PCS) was the subcontractor. Under

the subcontracts at issue, PCS performed employee scheduling and

cost-estimating services for WSRC in connection with WSRC’s management and operation of the United States Department of Energy’s

Savannah River Site (SRS). 

The subcontracts at issue provided that PCS would be paid for its

services on an interim basis using provisional rates, but that the parties would negotiate final rates after an audit, performed by WSRC,

of PCS’s accounting books and records. Depending upon the results

of the negotiations, the final amount due PCS under the subcontracts

at issue would be adjusted up or down. The final rates depended in

large part on numerous cost elements allegedly incurred by PCS in

performing the subcontracts at issue, for example, the cost to PCS to

rent office space and the cost to PCS to employ office personnel. 

The primary basis of the dispute between WSRC and PCS was the

level of cooperation that each party exhibited when the time came for

WSRC to audit PCS’s accounting books and records. Each party

accuses the other of acting unreasonably during the audit process,

which process was eventually completed by the Defense Contract

Audit Agency (DCAA) due to the bad blood that had developed

between the parties. Relevant to the present appeal, the DCAA audit

did not resolve certain disputes between the parties regarding the

appropriateness of the amounts of certain cost elements claimed by

PCS. Moreover, PCS was not happy when WSRC refused to continue

its contractor/subcontractor relationship with PCS at the expiration of

the subcontracts at issue and hired some employees of PCS. 

2 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
PCS ultimately brought the present diversity action against WSRC

alleging numerous claims, including breach of subcontracts and intentional interference with economic relations. The district court granted

summary judgment in favor of WSRC with respect to some of PCS’s

claims, granted WSRC’s motion for judgment as a matter of law with

respect to a portion of PCS’s breach of subcontracts claim,1 and

allowed the remaining claims to go to the jury. Following a threeweek trial, the jury returned a verdict fully in favor of WSRC. 

Furthermore, in order to resolve still disputed cost elements that

needed to be resolved before the parties could agree upon the amounts

that WSRC still owed PCS under the subcontracts at issue, the parties

agreed to allow the jury to answer special interrogatories (the Special

Interrogatories) regarding these disputed cost elements in what

amounted to an accounting exercise. Based upon the jury’s answers

to the Special Interrogatories, the parties agreed that the final amount

due PCS under the subcontracts at issue was $252,840.29. Because

the jury had been instructed, with the consent of the parties, that it

could find that WSRC still owed PCS money under the subcontracts

at issue without finding that WSRC had breached the subcontracts at

issue and the jury found that WSRC had not breached the subcontracts at issue, the district court did not make the $252,840.29 amount

part of the final judgment. 

On appeal, PCS alleges numerous errors by the district court,

including, not making the $252,840.29 amount part of the final judgment and not awarding PCS pre and postjudgment interest on that

amount. For reasons that follow, we affirm the final judgment of the

district court in toto. 

I.

In 1989, WSRC and the United States Department of Energy

entered into a contract whereby WSRC agreed to manage and operate

SRS for the Department of Energy. WSRC and PCS in turn entered

1

In this regard, the district court granted WSRC’s motion for judgment

as a matter of law to the extent that PCS contended that WSRC breached

an alleged contractual duty under a particular subcontract to provide PCS

with WSRC personnel for training. 

PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 3
into several subcontracts whereby PCS agreed to perform employee

scheduling and cost-estimating services for WSRC in connection with

WSRC’s management and operation of SRS. 

As previously explained, the subcontracts at issue in the present

appeal provided that the final amounts that WSRC owed PCS would

be determined through negotiations between the parties after a final

audit by WSRC of PCS’s accounting books and records. Also as previously explained, the DCAA ultimately completed the final audit of

PCS’s accounting books and records because of the bad blood that

had developed between the parties. The parties never engaged in final

negotiations to resolve the disputed cost elements. Moreover, as

stated previously, PCS was not happy when WSRC decided not to

continue its contractor/subcontractor relationship with PCS at the

expiration of the subcontracts at issue and hired some employees of

PCS. 

The rancorous relationship between PCS and WSRC ultimately led

PCS to file the present diversity action against WSRC in the United

States District Court for the Southern District of Georgia. Before any

substantive proceedings occurred, the action was transferred to the

United States District Court for the District of South Carolina. PCS’s

complaint alleged the following claims under South Carolina law: (1)

breach of third-party beneficiary contract2; (2) libel; (3) slander; (4)

violations of the South Carolina Unfair Trade Practices Act

(SCUTPA), S.C. Code Ann. §§ 39-5-10 to 39-5-160 (Law. Co-op.

1985 & Supp. 2001); (5) breach of contract accompanied by a fraudulent act; (6) breach of the implied duty of good faith and fair dealing;

(7) intentional interference with economic relations; (8) intentional

interference with prospective contractual relationships; and (9) breach

of subcontracts. WSRC filed a single counterclaim alleging breach of

subcontracts. 

Following the conclusion of discovery, the district court granted

WSRC’s motion for summary judgment, Fed. R. Civ. P. 56, with

respect to PCS’s claims alleging breach of third-party beneficiary

2This claim involved what the parties refer to as "the Prime Contract,"

which is the contract between WSRC and the United States Department

of Energy regarding WSRC’s management and operation of SRS. 

4 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
contract, libel, slander, violations of the SCUTPA, and breach of contract accompanied by a fraudulent act. The district court denied

WSRC’s motion for summary judgment with respect to PCS’s

remaining claims. The district court then scheduled the remaining

claims for a jury trial. 

At the close of PCS’s evidence at trial, the district court granted

WSRC’s motion for judgment as a matter of law to the extent that

PCS contended that WSRC breached an alleged contractual duty to

provide PCS with WSRC personnel for training. The jury found

against PCS with respect to its remaining claims alleging breach of

the implied duty of good faith and fair dealing, intentional interference with economic relations, intentional interference with prospective contractual relationships, and breach of subcontracts.3

Furthermore, as previously stated, the parties agreed to allow the

jury to answer the Special Interrogatories regarding the disputed cost

elements. Based upon the jury’s answers to the Special Interrogatories, the parties agreed that the final amount due PCS under the subcontracts at issue was $252,840.29. This amount was not made part

of the final judgment because the jury had been instructed, with the

consent of the parties, that: (1) its determinations of the disputed cost

elements on the Special Interrogatories does not suggest that it should

find for or against either party on any of the other claims that were

the subject of the verdict forms;4 and (2) the jury returned a verdict

finding that WSRC had not breached the subcontracts at issue. 

3On its own motion, the district court dismissed WSRC’s counterclaim

because WSRC had abandoned the claim at trial. 

4

In this regard, the district court specifically instructed the jury as follows: 

I want you to understand that your determination of these

amounts on the Special Interrogatories does not suggest that you

should find for or against either party on any of the other claims,

that [are] the subject of the verdict forms. In other words, we

have two things you are doing here today. One is you are resolving those unresolved audit issues and you are resolving that irrespective of fault on either side. Then once you have resolved that

then you go to the question of whether or not [PCS] has proved

PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 5
The district court subsequently entered its final judgment dismissing all claims against WSRC with prejudice. The judgment also provided that WSRC "shall recover of the plaintiff its costs of action."

(J.A. 2167). The district court left the determination of WSRC’s

"costs of action" for a later time, and to this court’s knowledge has

not made such determination.5Id.

Following the district court’s entry of final judgment in favor of

WSRC, PCS moved for a new trial with respect to all claims that were

before the jury (Rule 59(a) Motion). Fed. R. Civ. P. 59(a). PCS

argued that a new trial should be conducted because the weight of the

evidence and the jury’s answers to the Special Interrogatories demonstrated liability on the part of WSRC. PCS also rested its Rule 59(a)

Motion on allegations that the district court committed various evidentiary errors. The district court denied the motion in toto. 

In another post-trial motion, PCS moved for modification of the

final judgment to reflect: (1) that it prevailed on WSRC’s counterclaim; (2) an award of costs in favor of PCS rather than WSRC; and

(3) an award of $252,840.29 plus pre and postjudgment interest on

that amount. Fed. R. Civ. P. 59(e). The district court denied this

motion (the Rule 59(e) Motion) in toto as well. 

PCS noted a timely appeal. On appeal, PCS challenges the district

court’s grant of summary judgment in favor of WSRC with respect

to its claims alleging breach of third-party beneficiary contract, violations of the South Carolina Unfair Trade Practices Act, and breach of

contract accompanied by a fraudulent act. PCS also challenges the

the claims that it has brought in the case for breach of contract,

breach of implied duty of good faith and fair dealing, and the tortious interference claims. But just because you are determining

the amounts that are due and owing under the subcontracts does

not imply that you should find for or against either party on those

other claims. Those are separate issues. 

(J.A. 2074-75). 

5The parties agree that WSRC has paid PCS $252,840.29 less $30,000

that WSRC is withholding pending the district court’s determination of

its petition for approval of costs. 

6 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
district court’s grant of judgment as a matter of law with respect to

the portion of its breach of subcontracts claim pertaining to WSRC’s

alleged duty to provide PCS with WSRC personnel for training.

Moreover, PCS challenges the district court’s denial of its Rule 59(a)

Motion and Rule 59(e) Motion. 

II.

We first address PCS’s contention that the district court erred by

granting summary judgment in favor of WSRC with respect to its

claim alleging violations by WSRC of the SCUTPA. PCS’s contention is without merit. 

Summary judgment is appropriate when "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 judgment as a

matter of law." Fed. R. Civ. P. 56(c). "We review a grant of summary

judgment de novo, applying the same standard as the district court."

Baber v. Hospital Corp. of Am., 977 F.2d 872, 874 (4th Cir. 1992).

In so doing, we view all facts and reasonable inferences therefrom in

the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). 

The crux of PCS’s claim under the SCUTPA is that WSRC allegedly violated the SCUTPA by hiring PCS employees away from PCS,

using audit information for improper purposes, and blacklisting PCS

from future subcontracting opportunities with WSRC. To maintain a

viable claim under the SCUTPA, a plaintiff must prove by a preponderance of the evidence "(1) that the defendant engaged in an unlawful trade practice, (2) that the plaintiff suffered actual, ascertainable

damages as a result of the defendant’s use of the unlawful trade practice, and (3) that the unlawful trade practice engaged in by the defendant had an adverse impact on the public interest." Havird Oil Co. v.

Marathon Oil Co., 149 F.3d 283, 291 (4th Cir. 1998). South Carolina

courts, in addressing the third element of a SCUTPA claim, have

examined whether the conduct complained of is capable of repetition.

Noack Enters, Inc. v. Country Corner Interiors, 351 S.E.2d 347, 350-

51 (S.C. Ct. App. 1986). 

PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 7
We agree with the district court that PCS’s SCUTPA claim fails for

lack of evidence of an adverse impact on any public interest. As the

district court aptly stated with regard to this element: 

Plaintiff hangs its hat on the "potential for repetition." It

submits that WSRC has numerous subcontractors on site

and continues to illegally perform financial audits on small

and disadvantaged subcontractors. No evidence supports

this claim. This case presents a situation in which two corporations found themselves involved in a business dispute

over a contract audit. There is no evidence in the record that

WSRC regularly has such disputes with other parties or that

what transpired in this case has any real potential for repetition. At best this is a standard contract dispute that falls well

outside the ambit of what constitutes an actionable SCUTPA

violation. Accordingly, summary judgment is proper as to

Count V. 

(J.A. 607). Based upon this reasoning of the district court, we affirm

the district court’s grant of summary judgment in favor of WSRC

with respect to PCS’s SCUTPA claim. 

III.

We next address PCS’s contention that the district court erred in

excluding evidence that WSRC’s auditors who were involved in the

initial audit of PCS’s accounting books and records were not licensed

certified public accountants. PCS sought to introduce this evidence to

show that WSRC did not attempt to perform audits of PCS’s accounting books and records in accordance with statements "in its audit

reports that they were prepared in accordance with Generally

Accepted Government Auditing Standards (‘GAGAS’)." (PCS’s Br.

at 14). In this regard, PCS relied upon the portion of GAGAS providing that "public accountants engaged to conduct audits should be . . .

licensed certified public accountants . . . ." (J.A. 1507). 

WSRC had filed a pretrial motion in limine seeking to exclude all

evidence from trial that GAGAS required auditors to be licensed certified public accountants. The district court granted WSRC’s motion

in limine on the basis that the subcontracts at issue did not require

8 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
WSRC’s auditors to be licensed certified public accountants. The district court also rejected PCS’s reading of the auditor licensing provision in the GAGAS. Essentially, the district court’s reasoning in this

regard went as follows. WSRC’s auditors were not "public accountants engaged" to audit PCS. Id. Rather, they were WSRC employees

exercising WSRC’s contractual rights to inspect PCS’s accounting

books and records. Therefore, the licensing provision in GAGAS

upon which PCS relies was not applicable to WSRC’s auditors. 

We review a district court’s evidentiary rulings for abuse of discretion. Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,

71 F.3d 119, 126 (4th Cir. 1995). We can find no fault in the reasoning of the district court. Therefore, we hold the district court did not

abuse its discretion in excluding evidence that the auditors from

WSRC involved in the initial audits of PCS’s accounting books and

records were not licensed certified public accountants. 

IV.

We next address the assignment of error that PCS pressed most

vigorously on appeal, namely, that the district court abused its discretion by denying its Rule 59(e) Motion to modify the judgment in

order to reflect: (1) an award of $252,840.29 in its favor plus pre and

postjudgment interest on that amount; and (2) an award of costs in its

favor rather than WSRC. Fed. R. Civ. P. 59(e). PCS argues that such

a modification is in order because, in its complaint: (1) it alleged that

WSRC was using its failure to properly perform and complete the

audit of PCS’s accounting books and records as an excuse for not

paying it substantial sums of money owed under the subcontracts at

issue; (2) it generally requested an award of monetary damages; and

(3) it specifically requested an award of prejudgment interest for

amounts still owing under the subcontracts. According to PCS, it is

inconceivable that the jury could have answered the Special Interrogatories in its favor but found against it on every one of its substantive

claims. Thus, as PCS’s argument goes, the final judgment, as it now

stands, reflects an inconsistency in the jury’s verdict; an inconsistency

that can only be corrected by vacating the final judgment and remanding the case to the district court with instructions that the district court

grant its Rule 59(e) Motion. 

PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 9
Although Rule 59(e) does not itself provide a standard under which

a district court may grant a motion to alter or amend a judgment, we

have previously recognized that there are three grounds for modifying

an earlier judgment: "(1) to accommodate an intervening change in

controlling law; (2) to account for new evidence not available at trial;

or (3) to correct a clear error of law or prevent manifest injustice."

EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997).

PCS’s Rule 59(e) Motion appears to rely upon this last ground. 

Reviewing the district court’s denial of PCS’s Rule 59(e) Motion

for abuse of discretion, id., we find this assignment of error to be

without merit. First, the invited error doctrine prevents PCS from

relying upon any alleged inconsistency in the jury’s verdict in support

of its challenge to the district court’s denial of its Rule 59(e) Motion.

Under the "invited error" doctrine, a party is prevented from inducing

the court to take an erroneous step and later seeking redress for the

error. United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)

("invited error doctrine recognizes that a court cannot be asked by

counsel to take a step in a case and later be convicted of error,

because it has complied with such request") (internal quotation marks

omitted). Here, PCS invited the jury’s allegedly inconsistent verdict.

As the district court reported in its Memorandum Opinion in which

it denied PCS’s Rule 59(a) Motion and its Rule 59(e) Motion, "both

parties agreed that even if there was no breach [of the subcontracts

at issue] by WSRC, outstanding negotiations were required . . . to

finalize any amounts due to or from" PCS under the subcontracts at

issue. (J.A. 2192). Therefore, with input from and approval of the parties, the district court instructed the jury as follows: 

[Y]our determination of these amounts on the Special Interrogatories does not suggest that you should find for or

against either party on any of the other claims, that [are] the

subject of the verdict forms. In other words, we have two

things you are doing here today. One is you are resolving

those unresolved audit issues and you are resolving that irrespective of fault on either side. Then once you have resolved

that then you go to the question of whether or not [PCS] has

proved the claims that it has brought in the case for breach

of contract, breach of implied duty of good faith and fair

dealing, and the tortious interference claims. But just

10 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
because you are determining the amounts that are due and

owing under the subcontracts does not imply that you

should find for or against either party on those other claims.

Those are separate issues. 

(J.A. 2074-75). These jury instructions clearly created the potential

for the verdict situation that resulted in this case.6 Thus, assuming

arguendo that the jury’s verdict is inconsistent, such inconsistency

was invited by PCS and cannot now be remedied on appeal. Second,

as the district court correctly explained, the verdict is not inherently

inconsistent. The jury apparently believed that although WSRC owed

PCS money under the subcontracts at issue, that fact did not constitute

breach of those subcontracts under the circumstances. This finding is

plausible given that the subcontracts at issue provided that outstanding negotiations were required to finalize any amounts owed PCS. 

PCS’s assignment of error in this regard strikes us as PCS wanting

to have its cake and eat it to. The district court accommodated PCS’s

desire to have the jury resolve the disputed cost elements by answering the Special Interrogatories. In order to effectuate this process,

PCS also agreed to the jury instruction which made clear that the

jury’s answers to the Special Interrogatories had no bearing upon its

deliberations regarding PCS’s substantive claims. PCS now complains that the district court erred by not incorporating the

$252,840.29 amount as well as pre and postjudgment interest on that

amount as part of the final judgment (not to mention its request that

we award it rather than WSRC costs). We think not; PCS having

made its bed, it must now lie in it. In sum, we affirm the district

court’s denial of PCS’s Rule 59(e).7

6Notably, even before this court, PCS expressly states that it "does not

attack the jury charges themselves." (PCS’s Reply Br. at 11). In fact,

PCS admits that the jury instruction quoted above "is not inaccurate."

(PCS’s Reply Br. at 9). 

7We have carefully reviewed PCS’s remaining assignments of error

and find them to be without merit. 

PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 11
V.

In conclusion, we affirm the district court’s final judgment in toto.

AFFIRMED

12 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER