UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOPAKCO FOODS, A Division of

So-Pak-Co, Incorporated,

Plaintiff-Appellee,

v.

DOLPHUS E. POWERS, No. 98-2086

Defendant-Appellant,

v.

JOHN CALABRESE,

Third Party Defendant.

SOPAKCO FOODS, A Division of

So-Pak-Co, Incorporated,

Plaintiff-Appellee,

v.

DOLPHUS E. POWERS, No. 98-2522

Defendant-Appellant,

v.

JOHN CALABRESE,

Third Party Defendant.

Appeals from the United States District Court

for the District of South Carolina, at Florence.

Patrick Michael Duffy, District Judge.

(CA-97-1989-4-23)

Argued: November 30, 1999

Decided: January 7, 2000
Before MICHAEL and TRAXLER, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas R. Goldstein, BELK, COBB, CHANDLER &

GOLDSTEIN, P.A., Charleston, South Carolina, for Appellant. Henrietta Urbani Golding, BELLAMY, RUTENBERG, COPELAND,

EPPS, GRAVELY & BOWERS, P.A., Myrtle Beach, South Carolina,

for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

On July 2, 1997, Sopakco Foods ("Sopakco") brought this diversity

action in the United States District Court for the District of South Carolina. Sopakco's sole claim was based on a personal guaranty signed

in June 1995 by Dolphus E. Powers ("Powers"), one of two shareholders of Miami Ice Coffee, Inc. ("Miami Ice Coffee"), a seller of

an iced coffee drink. Sopakco manufactured and produced the beverage for Miami Ice Coffee and Powers guaranteed that the company

would purchase a minimum of ten million units of the beverage on

or before June 1, 1997. Miami Ice Coffee failed to make the required

purchases and Sopakco sought to hold Powers liable under the guaranty for the remainder of the unsold units, totaling approximately

$145,000.

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Powers did not contest signing the guaranty, but brought a counterclaim for civil conspiracy against Sopakco for allegedly conspiring

with John Calabrese ("Calabrese"), the other shareholder of Miami

Ice Coffee. The crux of Powers' counterclaim was that unbeknownst

to him, Calabrese began negotiating with representatives of Sopakco

for the sale of Miami Ice Coffee's assets and these surreptitious negotiations led to the downfall of Miami Ice Coffee. Of course, when

Powers informed Sopakco that he was still involved in the operations

of Miami Ice Coffee, Sopakco began negotiating with both shareholders, but no sale of assets occurred.

After discovery, Powers and Sopakco filed cross-motions for summary judgment. The district court found that the parties' memoranda

adequately addressed the relevant issues and pursuant to Local Rule

7.08 the court decided the motions without a hearing.* The court

granted Sopakco's motion for summary judgment, but denied Powers'

motion. In its cogent June 5, 1998 order, the district court concluded

that Powers was liable on the guaranty because he admitted signing

it and did not raise any affirmative defenses in his answer. As for the

conspiracy counterclaim, the district court held that the evidence presented merely showed that once Sopakco learned that Powers

remained active in Miami Ice Coffee, Sopakco included Powers in the

negotiations. Because the original order granting summary judgment

for Sopakco failed to specify the amount of judgment, the district

court later amended the order to provide Sopakco with a judgment

against Powers of $145,290.12, together with legal interest. The district court also granted Sopakco's petition for attorney fees, and

denied Powers' motion for reconsideration. This appeal followed.

Upon review of the briefs and the record, and after consideration

of oral arguments, we find no reversible error. Accordingly, we affirm

on the reasoning of the district court. See Sopakco Foods v. Powers,

No. 4:97-1989-23 (D.S.C. June 5, 1998).

AFFIRMED

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*Powers' objection to summary judgment on the ground that he was

not permitted to submit a particular affidavit fails for two reasons. First,

the affidavit was cumulative to the deposition testimony presented. Second, the affidavit was untimely filed under the district court's local rules.

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