UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1488

RFT MANAGEMENT COMPANY LLC,

Plaintiff - Appellant,

v.

JOHN D. POWELL; PROFESSIONAL APPRAISAL SERVICE INCORPORATED; 

TINSLEY & ADAMS LLP; WELBORN D. ADAMS,

Defendants – Appellees,

and

LAKE GREENWOOD DEVELOPERS LLC; WILLIAM E. GILBERT; STEPHEN 

GILBERT; JAN BRADSHAW; COURTNEY R. FURMAN; FURMAN PROPERTIES 

LLC,

Defendants.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. Mary G. Lewis, District Judge. 

(8:10-cv-02503-MGL)

Submitted: January 29, 2015 Decided: April 9, 2015

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished 

per curiam opinion.

Harry A. Swagart, III, HARRY A. SWAGART, III, P.C., Columbia, 

South Carolina, for Appellant. William A. Coates, Carroll H. 
2

Roe, Jr., ROE CASSIDY COATES & PRICE, PA, Greenville, South 

Carolina; Matthew H. Henrickson, HENRICKSON LAW FIRM, LLC, 

Greenville, South Carolina; Amy M. Snyder, CLARKSON, WALSH, 

TERRELL & COULTER, P.A., Greenville, South Carolina, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

RFT Management Company, LLC, (“RFT”), through its 

manager, David Roatch, purchased two lots from a real estate 

developer in a residential subdivision, hoping that the lots’ 

value would appreciate upon completion of the subdivision’s 

development. Due to the economic downturn, development stalled, 

and the lots’ value plummeted. With the real estate developer 

no longer in business, RFT filed suit against the appraiser, 

John Powell, and the appraisal company, Professional Appraisal 

Service, Incorporated (collectively with Powell, “PAS”), as well 

as the lawyer, Welborn Adams, and his law firm, Tinsley & Adams 

LLP (collectively with Adams, “T&A”), that had facilitated the 

purchase of the lots. A jury found in favor of Defendants on 

all claims that remained following dismissal of a number of 

claims during the pretrial stage. This appeal followed.

On appeal, RFT asserts that the district court erred 

by (1) dismissing its South Carolina Unfair Trade Practices Act 

(“UTPA”),1 South Carolina Uniform Securities Act (“SCUSA”),2 and 

civil conspiracy claims against T&A based on res judicata; 

(2) dismissing its claims under the Interstate Land Sales Full 

 1 S.C. Code Ann. §§ 39–5–10 to –560 (1985 & Supp. 2014).

2 S.C. Code Ann. §§ 35–1–101 to –703 (1987 & Supp. 2014).
4

Disclosure Act (“ILSFDA”)3 and § 10(b) of the Securities Exchange 

Act of 19344 and Securities and Exchange Commission Rule 10b-5 

implementing it5 (together, “federal securities claim”) against 

T&A and PAS; (3) denying its motion for leave to amend its 

complaint in order to cure deficiencies identified by the 

district court; (4) denying its Fed. R. Civ. P. 50(b) motion for 

judgment as a matter of law on its UTPA claim against PAS; and 

(5) denying its motion for a new trial on its UTPA and 

professional negligence claims against PAS. Reviewing these 

decisions in turn, we affirm the first four, affirm in part and 

reverse in part the last, and remand to the district court.

I. Claims dismissed on the basis of res judicata

We review de novo a Fed. R. Civ. P. 12(b)(6) dismissal 

based on principles of res judicata. Brooks v. Arthur, 626 F.3d 

194, 200 (4th Cir. 2010). Federal courts are bound by 28 U.S.C. 

§ 1738 (2012) to apply the law of the rendering state to 

determine the extent to which a state court judgment should have 

preclusive effect in a federal action. Exxon Mobil Corp. v. 

Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005); Brooks, 626 

F.3d at 200. In South Carolina, the doctrine of res judicata 

 3 15 U.S.C. §§ 1701-1720 (2012). 

4 15 U.S.C. § 78(j) (2012). 

5 17 C.F.R. § 240.10b-5 (2014)
5

will bar a claim when “(1) the identities of the parties are the 

same as in the prior litigation, (2) the subject matter is the 

same as in the prior litigation, and (3) there was a prior 

adjudication of the issue by a court of competent jurisdiction.” 

Catawba Indian Nation v. State, 756 S.E.2d 900, 907 (S.C. 2014). 

Moreover, res judicata “bars plaintiffs from pursuing [a claim 

in] a later suit where the claim . . . could have been 

litigated” in a prior suit, and “the claim[] arise[s] out of the 

same transaction or occurrence that was the subject of [the] 

prior action between [the same] parties.” Id. at 906.6

Having reviewed the record, we conclude that RFT’s 

civil conspiracy, UTPA, and SCUSA claims meet the requirements 

under South Carolina law for res judicata preclusion.7

 

Accordingly, we affirm the district court’s order dismissing 

these claims.

 6 We note that the law of South Carolina distinguishes 

between preclusion based on res judicata and preclusion based on 

collateral estoppel. See Lowe v. Clayton, 212 S.E.2d 582 (S.C. 

1975); S.C. Pub. Interest Found. v. Greenville Cnty., 737 S.E.2d 

502, 507 (S.C. Ct. App. 2013). To the extent that RFT’s appeal 

relies on principles of collateral estoppel, we find its 

arguments inapposite.

7 The district court’s order dismissing the claims relied on 

the judgment of a state trial court that was subsequently 

affirmed on other grounds by the South Carolina Supreme Court. 

To the extent RFT asserts error in the district court’s reliance 

on a state court judgment later affirmed on other grounds, such 

error was harmless. See United States v. Olano, 507 U.S. 725, 

734 (1993). 
6

II. Claims dismissed for failure to state a claim

We review de novo a district court’s dismissal for 

failure to state a claim under Rule 12(b)(6). Summers v. 

Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014). “To 

survive a motion to dismiss, a complaint must present factual 

allegations that ‘state a claim to relief that is plausible on 

its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662

(2009)). In applying that standard, we take all facts pleaded 

as true, and draw all reasonable inferences in RFT’s favor. Id. 

Relevant to this appeal, Fed. R. Civ. P. 8 requires that a 

complaint “give the defendant fair notice of what the claim is.” 

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 

marks and ellipsis omitted).

RFT does not challenge the district court’s 

determination that aider and abettor liability is not available 

for private actions under ILSFDA or the federal securities law 

at issue. Accordingly, we do not review that determination. We 

conclude that RFT’s complaint alleged only that Appellees were 

liable for aiding and abetting violations of ILSFDA and the 

federal securities law and did not provide fair notice of any 

claim of primary liability against Appellees. We therefore 

affirm the district court’s order dismissing RFT’s ILSFDA and 

federal securities claims.
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III. Denial of motion for leave to amend complaint

We review for abuse of discretion the district court’s 

denial of a motion to amend the pleadings under Fed. R. Civ. P. 

15(a). Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 

2014). Although leave to amend a complaint should be “freely 

give[n] . . . when justice so requires,” Fed. R. Civ. P. 

15(a)(2), “after the deadlines provided by a scheduling order 

have passed, the good cause standard [of Fed. R. Civ. P. 16] 

must be satisfied to justify leave to amend the pleadings” 

Nourison Rug Co. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 

2008). “Rule 16(b)’s good cause standard emphasizes the 

diligence of the party seeking amendment.” O’Connell v. Hyatt 

Hotels of P.R., 357 F.3d 152, 155 (1st Cir. 2004). We conclude 

that RFT did not demonstrate the diligence required by Rule 

16(b), and, therefore, the district court acted well within its 

discretion in denying RFT leave to amend. 

IV. Denial of motion for judgment as a matter of law

“We review the denial of a Rule 50(b) motion de novo, 

viewing the evidence in the light most favorable to the 

prevailing party, and will affirm the denial of such a motion 

unless the jury lacked a legally sufficient evidentiary basis 

for its verdict.” Bunn v. Oldendorff Carriers GmbH & Co. KG, 

723 F.3d 454, 460 n.4 (4th Cir. 2013) (internal quotation marks 

omitted). RFT contends that the district court erred in not 
8

granting its Rule 50(b) motion on its UTPA claim against PAS 

because it presented undisputed evidence proving all three 

elements of UTPA.

“To recover in an action under [South Carolina’s]

UTPA, the plaintiff must show: (1) the defendant engaged in an 

unfair or deceptive act in the conduct of trade or commerce; 

(2) the unfair or deceptive act affected public interest; and 

(3) the plaintiff suffered monetary or property loss as a result 

of the defendant’s unfair or deceptive act.” Health Promotion 

Specialists, LLC v. S.C. Bd. of Dentistry, 743 S.E.2d 808, 816 

(S.C. 2013). Under UTPA, to establish proximate cause, the 

alleged injury must be the natural and probable consequence of 

the complained of conduct. Collins Holding Corp. v. Defibaugh, 

646 S.E.2d 147, 149-50 (S.C. Ct. App. 2007). More traditionally 

stated, proximate cause requires proof of causation-in-fact, or 

but-for causation, and legal causation, or foreseeability. 

Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C. 2006).

Viewing the evidence in the light most favorable to

PAS, we conclude that PAS presented sufficient evidence from 

which a reasonable jury could conclude that PAS’s appraisals of 

the two lots, even if unfair or deceptive, did not proximately 

cause RFT’s loss. Thus, because a reasonable jury could have 

found against RFT on the proximate cause element of UTPA, we 

affirm the district court’s denial of RFT’s Rule 50(b) motion.
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V. Denial of motion for a new trial

“A district court’s denial of a motion for a new trial 

is reviewed for abuse of discretion[] and will not be reversed 

save in the most exceptional circumstances.” Minter v. Wells 

Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014). After a 

jury trial, a district court may grant a motion for a new trial 

“for any reasons for which new trials have heretofore been 

granted in actions at law in federal court,” Fed. R. Civ. P. 

59(a)(1), including for “substantial errors in admission or 

rejection of evidence or instructions to the jury,” Montgomery 

Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). 

RFT contends that the district court erred by not 

granting its motion for a new trial on its UTPA and professional 

negligence claims against PAS citing asserted errors in the 

court’s evidentiary rulings and jury instructions. We address 

RFT’s assertions of error in turn, applying the appropriate 

standard of review to each issue raised. See Buckley v. 

Mukasey, 538 F.3d 306, 317-21 (4th Cir. 2008).

A. Evidentiary rulings. “We review a trial 

court’s rulings on the admissibility of evidence for abuse of 

discretion, and we will only overturn an evidentiary ruling that 

is arbitrary and irrational.” Minter, 762 F.3d at 349 (internal 

quotation marks omitted). Furthermore, we will not “set aside 

or reverse a judgment on the grounds that evidence was 
10

erroneously admitted unless justice so requires or a party’s 

substantial rights are affected.” Creekmore v. Maryview Hosp., 

662 F.3d 686, 693 (4th Cir. 2011).

Preliminarily, we find that several of the claims of 

error advanced by RFT do not comply with Fed. R. App. P.

28(a)(8)(A), and, therefore RFT has forfeited review of those 

claims. See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 153 

n.6 (4th Cir. 2012). Those claims that are properly presented 

for appellate review, in our determination, do not demonstrate 

that the district court abused its discretion in its evidentiary 

rulings. Accordingly, we conclude that the district court did 

not abuse its discretion in denying RFT’s motion for a new trial 

based on assertions of erroneous evidentiary rulings.

B. Jury instructions. “[W]e review a trial court’s 

jury instructions for abuse of discretion, keeping in mind that 

a trial court has broad discretion in framing its instructions 

to a jury.” Bunn, 723 F.3d at 468 (internal quotation marks 

omitted). “Instructions will be considered adequate if 

construed as a whole, and in light of the whole record, they 

adequately informed the jury of the controlling legal principles 

without misleading or confusing the jury to the prejudice of the 

existing party.” Id. (internal quotation marks omitted). “Even 

if a jury was erroneously instructed, however, we will not set 

aside a resulting verdict unless the erroneous instruction 
11

seriously prejudiced the challenging party’s case.” Id.

(internal quotation marks omitted).

As an initial matter, we address whether RFT’s 

asserted errors have been properly preserved. “A party who 

objects to an instruction or the failure to give an instruction 

must do so on the record, stating distinctly the matter objected 

to and the grounds for the objection.” Fed. R. Civ. P. 

51(c)(1). “When challenging instructions on appeal, a party 

must furnish the court of appeals with so much of the record of 

the proceedings below as is necessary to enable informed 

appellate review.” Bunn, 723 F.3d at 468 (internal quotation 

marks omitted). However, “a formal exception to a ruling or 

order is unnecessary. . . . [A] party need only state the action 

that it wants the court to take or objects to, along with the 

grounds for the request or objection.” Fed. R. Civ. P. 46. 

Consequently, Rule 51 generally will not preclude appellate 

review “where the district court was fully aware of [a party’s] 

position and . . . obviously considered and rejected [it].” 

City of Richmond v. Madison Mgmt. Grp., Inc., 918 F.2d 438, 453 

(4th Cir. 1990) (internal quotation marks omitted).

Under these principles and the facts in the record, we 

find that RFT’s challenges to the jury instructions during the 

charge conference constitute objections for Rule 51 purposes. 

Nevertheless, we find that RFT failed to preserve a number of 
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the errors it asserts on appeal because either the district 

court’s ruling or RFT’s objection thereto is absent from the 

record. With one exception, we conclude that the assertions 

properly preserved and presented for appellate review either are 

meritless or assert only harmless error. 

With respect to the remaining asserted error, RFT 

contends that the district court erred by instructing the jury 

that conduct affecting only the parties involved cannot satisfy 

UTPA’s public interest requirement. We agree. Under South 

Carolina law, a plaintiff satisfies the public interest element 

of UTPA by proving that the conduct at issue had the potential 

for repetition; no further proof is required. See Crary v. 

Djebelli, 496 S.E.2d 21, 23 (S.C. 1998); Daisy Outdoor Adver.

Co. v. Abbott, 473 S.E.2d 47, 50 (S.C. 1996). The court’s 

instruction placed an additional requirement of proof on RFT. 

This erroneous instruction constituted an abuse of discretion 

and seriously prejudiced RFT’s case. See Coll. Loan Corp. v. 

SLM Corp., 396 F.3d 588, 600 (4th Cir. 2005). Consequently, the 

court’s order denying RFT’s motion for a new trial on the UTPA 

claim constitutes an abuse of discretion. We therefore affirm 

the order denying a new trial as to the professional negligence 

claim, reverse as to the UTPA claim, and remand to the district 

court for further proceedings consistent with this opinion.
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We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED