UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MCKENZIE CONSTRUCTION

CORPORATION,

Plaintiff-Appellant,

v.

HYDRO TECHNOLOGIES OF FLORIDA,

No. 98-2648

INCORPORATED,

Defendant-Appellee,

and

ANTHONY J. BALLATO,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Jerome B. Friedman, District Judge.

(CA-97-869-2)

Argued: October 28, 1999

Decided: November 18, 1999

Before MURNAGHAN, MOTZ, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Christopher Scott Boynton, COOPER, SPONG &

DAVIS, P.C., Portsmouth, Virginia, for Appellant. Peter Paul
Mitrano, II, Etna, New Hampshire, for Appellee. ON BRIEF: Paul

L. Warren, COOPER, SPONG & DAVIS, P.C., Portsmouth, Virginia,

for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

McKenzie Construction Corporation filed suit in Virginia state

court against Hydro Techologies of Florida and its president, Anthony

J. Ballato, alleging breach of contract and fraud. Hydro removed the

case to the United States District Court for the Eastern District of Virginia. After a jury verdict in McKenzie's favor on both counts, the

district court, pursuant to Rule 50(b), granted Hydro's renewed

motion for judgment as a matter of law on the fraud count. McKenzie

appeals, urging that the jury's verdict on fraud be reinstated.

A motion for judgment as a matter of law should be granted when

"there is no legally sufficient evidentiary basis for a reasonable jury"

to find against the movant. Fed.R.Civ.P. 50(a). The district court

found that McKenzie's evidence was insufficient, as a matter of Virginia law, to establish the materiality and reliance elements of a fraud

claim. It therefore held that "no reasonable juror could find in favor

of the plaintiff on the claim of fraud."

In reviewing a judgment entered pursuant to Rule 50(b), we construe all facts in the light most favorable to the party against whom

judgment was entered, and we review the district court's legal conclusions de novo. See Konkel v. Bob Evans Farms Inc., 165 F.3d 275,

279 (4th Cir.), cert. denied, 68 U.S.L.W. 3106 (U.S. Oct. 4, 1999)

(No. 99-180). Having done so and after careful examination of the

briefs and record and consideration of counsel's oral argument, we

now affirm on the basis of the district court's reasoning. See

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McKenzie Constr. Corp. v. Hyrdo Technologies of Fla ., No.

CA-97-869-2 (E.D. Va. October 8, 1998).

McKenzie, the general contractor on a project to construct an

indoor swimming pool for the City of Virginia Beach, awarded a subcontract to Hydro for the application of fiberglass coating to the basin

of the pool. In one of the numerous communications between the parties, Hydro indicated that it intended to use "Polygard" brand coating;

in all other communications Hydro stated that it would use the product "Everglass." Hydro did not complete the job, and the fiberglass

coating it applied did not adhere properly to the walls of the pool. The

evidence, taken as a whole, cannot support a reasonable inference that

Hydro's one-time representation that it would use"Polygard" coating

was material to McKenzie, or that McKenzie relied on this representation in any relevant way. The judgment of the district court is therefore

AFFIRMED.

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