UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FIRST AMERICAN BANK OF VIRGINIA,

Plaintiff-Appellee,

v.

CASSANDRA WILLIAMS, a/k/a

Cassandra G. Nelson, t/a Cultural

Associates,

Defendant-Appellant,

and

No. 94-1744

GLENDA BARNUM, Individually, d/b/a

MAPS Marketing Enterprise;

MELISSA PREJEAN, Individually, d/b/a

MAPS Marketing Enterprise;

DOROTHY CARRADINE, Individually,

d/b/a MAPS Marketing Enterprise;

MAPS MARKETING ENTERPRISE, a/k/a

MAP Enterprises, Incorporated,

Third Party Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Walter E. Black, Jr., Senior District Judge.

(CA-89-1341-B)

Argued: March 8, 1995

Decided: March 7, 1997

Before WILKINSON, Chief Judge, and WIDENER and

MICHAEL, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard L. Donald, Jr., Temple Hills, Maryland, for

Appellant. Daniel Stephen Fiore, II, Arlington, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case arises out of a Bankcard Merchant Agreement between

First American Bank of Virginia and Cassandra Williams, doing business as Cultural Associates. Miss Williams appeals the district court's

summary judgment dismissal of her counterclaim for defamation and

the district court's order reducing a jury award in her favor from

$26,000 to $1,530. Upon this third appeal in this case, we are of opinion that the district court's orders are correct, and we therefore affirm

its judgment.

Miss Williams was sole proprietor of Cultural Associates, a business primarily engaged in the sale of artwork created by Miss Williams' husband. On September 22, 1986, Miss Williams and First

American renewed a Bankcard Merchant Agreement. The agreement

provided that First American would maintain a bankcard merchant

account into which Miss Williams would deposit credit card slips representing purchases by cardholders. First American would then credit

Miss Williams' account for the amount of the submitted drafts and

collect the amounts of those drafts from the bank which had issued

the credit card used in a given transaction. First American was also

entitled to assess Miss Williams a percentage of the value of each

transaction as a fee for processing the slips.

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In April 1988, Miss Williams entered into a contract with Maps

Marketing Enterprises, Inc. Maps Marketing sold vacation and travel

discount club memberships to customers solicited over the telephone.

Miss Williams agreed to submit to First American Maps Marketing's

credit card slips reflecting orders Maps Marketing had obtained

through telemarketing. Upon receiving provisional credit from First

American, Miss Williams would pay to Maps Marketing the amount

of the slips less a $30 charge per transaction.

Some of the Maps Marketing slips submitted by Miss Williams to

First American were subsequently disputed by cardholders. The institutions which had issued the credit cards involved back-charged the

disputed amounts to First American. First American claims that over

$65,000 of Maps Marketing transactions have been back-charged to

it. On May 5, 1988, after its discovery of Miss Williams' relationship

with Maps Marketing, First American refused to credit Miss Williams

for $25,015.20 in credit card slips, most of which represented Maps

Marketing transactions. On May 6, First American terminated the

merchant agreement and closed the merchant account. First American

apparently later processed those May 5, 1988 sales drafts which had

resulted from Miss Williams' own business.

First American filed suit against Miss Williams in May 1989,

asserting claims against her for breach of contract, breach of warranties, restitution, and fraud and deceit. Miss Williams filed counterclaims against First American alleging breach of contract, defamation,

intentional interference with contractual relations, accounting, and

conversion.

First American moved for summary judgment against Miss Williams on all counterclaims. The district court granted summary judgment on the conversion counterclaim on June 11, 1990, and the

defamation counterclaim on November 13, 1990. Miss Williams

appealed the grant of summary judgment on her defamation claim to

this court, which appeal was dismissed as interlocutory on December

3, 1991. Summary judgment was denied on the remaining counterclaims, and the case proceeded to jury trial. The jury awarded First

American $22,914.71 on breach of contract and restitution. The jury

found for Miss Williams on First American's breach of warranty and

fraud and deceit claims. Miss Williams was awarded $6,000 on her

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counterclaims of breach of contract and accounting, and $20,000 on

her intentional interference with contractual relations counterclaim,

upon which judgment was entered.

First American moved under Fed. R. Civ. P. 59(e) to have the judgment altered, and the district court granted the motion. Miss Williams' award was reduced from $26,000 to $1,530, and judgment was

entered December 3, 1992. Miss Williams appealed the judgment to

this court. After oral argument, this court vacated the judgment and

remanded the case to the district court without an opinion on the merits. This court noted that the briefs and arguments were incomprehensible, the appendix deficient, and the record inadequate for just

review.

On remand, the district court filed memorandum opinions on its

grant of summary judgment on Miss Williams' counterclaim for defamation and its reduction of Miss Williams' award from $26,000 to

$1,530. The district court then entered judgment in the same amount

as entered on December 3, 1992. Miss Williams has again appealed.

Miss Williams raises two points on appeal. First, she argues that

the district court erred in granting summary judgment in favor of First

American on her counterclaim for defamation. We review the district

court's grant of summary judgment on the defamation counterclaim

de novo. Holland v. Rimmer, 25 F.3d 1251, 1254 (4th Cir. 1994).

Miss Williams alleged that First American informed its own employees, the FBI, and customers of Maps Marketing that Cultural Associates was involved in fraudulent or unlawful activities. Miss

Williams further alleged that the statements were false and damaged

her reputation.

The parties have agreed that the laws of Virginia govern this dispute, and both rely on Gazette, Inc. v. Harris , 325 S.E.2d 713 (Va.),

cert. denied, 472 U.S. 1032 (1985). In that case, the Court set out the

elements of a claim such as this for defamation when brought by a

private individual. To recover, plaintiff must show by a preponderance of the evidence that there was publication of a false statement,

and that the defendant either knew it to be false, or believing it to be

true, lacked reasonable grounds for such belief, or acted negligently

in failing to ascertain the facts on which the publication was based.

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325 S.E.2d at 724-25. The court noted that in such cases, the burden

is on the plaintiff to prove the falsity of the publication. 325 S.E.2d

at 725.

In support of her counterclaim, Miss Williams submitted affidavits

and documentary evidence. Even if some of the statements contained

in the supporting evidence could be construed as defamatory, we

agree with the district court that Miss Williams did not offer sufficient

evidence to withstand First American's motion for summary judgment. "The moving party is `entitled to judgment as a matter of law'

because the nonmoving party has failed to make a sufficient showing

on an essential element of her case with respect to which she has the

burden of proof." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)

(quoting Fed. R. Civ. P. 56(c)). The district court correctly pointed

out that Miss Williams did not offer evidence of the falsity of certain

of the allegedly defamatory statements, an element of defamation

under Virginia law. As to the other statements which might have contained defamatory matter, the district court correctly found that there

had been no publication. We therefore affirm the grant of summary

judgment to First American on Miss Williams' counterclaim for defamation.

Second, Miss Williams contends that the district court erred in

reducing the jury verdict in her favor from $26,000 to $1,530. A

motion to alter or amend a judgment may be granted if it accommodates an intervening change in controlling law, accounts for new evidence not available at trial, or corrects a clear error of law or prevents

manifest injustice. Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th

Cir. 1993).

The jury in this case returned a verdict in favor of Miss Williams

on her counterclaims for breach of contract and intentional interference with contractual relations in the total amount of $26,000. First

American moved to have the award reduced, claiming that under the

pretrial order, Miss Williams was limited to an award for loss of profits and that the evidence at trial established that Miss Williams would

only have earned $1,530. After a hearing on the motion, the court

granted First American's motion and reduced the jury award to

$1,530. Miss Williams argues that she is entitled to the full amount

of the jury award.

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The pretrial order in this case limited Miss Williams' damages for

loss of profits from March 1988 to May 5, 1988 for both the breach

of contract claim and the intentional interference claim, and she is

bound by the pretrial order. See Fed. R. Civ. P. 16(e).

We are of opinion that the reasoning of the district court's opinion

is correct. Miss Williams only introduced evidence that First American refused to credit her for the May 5, 1988 deposit of $25,015.20

during the relevant time period. The evidence established that the

$25,015.20 represented approximately 51 Maps Marketing transactions with a profit of $30 each. Because Miss Williams did not present any other evidence of loss of profits, she was entitled to only

$1,530. The jury award of $26,000 was not supported by the record,

which is a clear error of law. See Hutchinson , 994 F.2d at 1081.

The judgment of the district court is accordingly

AFFIRMED.

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