Richard Gitter v. Cardiac & Thoracic Surgical As

Filing 920090721

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2221

RICHARD GITTER, Plaintiff - Appellant, v. CARDIAC & THORACIC MEMORIAL HOSPITAL, SURGICAL ASSOCIATES, LTD.; ROCKINGHAM

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:07-cv-00546-RLW)

Submitted:

July 8, 2009

Decided:

July 21, 2009

Before TRAXLER, Chief Judge, and WILKINSON and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Henry I. Willett, III, David B. Lacy, CHRISTIAN & BARTON, LLP, Richmond, Virginia; Victor L. Hayslip, Walker S. Stewart, BURR & FORMAN, LLP, Birmingham, Alabama, for Appellant. Charles M. Allen, GOODMAN, ALLEN & FILETTI, PLLC, Glen Allen, Virginia; Marshall H. Ross, WHARTON ALDHIZER & WEAVER, PLC, Harrisonburg, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Richard adopting the Gitter appeals judge's the report district and court's order to

magistrate

recommendation

grant Defendants' summary judgment motions on his claims for breach of contract; suppression; fraud, misrepresentation inducement and to deceit; enter a

fraudulent

fraudulent

contract; and conspiracy. district court's

On appeal, Gitter challenges only the of his breach of contract claim

dismissal

against Defendants.

We vacate the district court's order to the

extent that it determined that Gitter was barred by Virginia's "unclean hands" doctrine from asserting that Defendants were

equitably estopped from relying on a Statute of Frauds defense, but affirm the remainder of the district court's order. To establish a breach of contract claim under Virginia law, a plaintiff of must prove: "(1) to of a legally enforceable (2) and the (3) of

obligation defendant's injury or

[the]

defendant or the breach

[the] that

plaintiff; obligation; by the

violation damage to

plaintiff

caused

breach

obligation."

Filak v. George, 594 S.E.2d 610, 614 (Va. 2004) An obligation that is not to be performed not a "legally enforceable obligation,"

(citations omitted). within a year is

however, if it is not "in writing and signed by the party to be charged or his agent." Va. Code Ann. § 11-2(8) (2006).

Gitter's employment agreement was not to be performed within one 2

year

and,

accordingly,

the

agreement

was

required

to

be

in

writing under Virginia's Statute of Frauds.

We conclude that

the district court correctly held that the parties' various email communications did not constitute a signed writing

sufficient to satisfy the Statute of Frauds. We nonetheless conclude that the district court erred when it applied Virginia's unclean hands doctrine to bar Gitter from claiming that Defendants were equitably estopped from

asserting the Statute of Frauds defense.

Before the unclean

hands doctrine will bar an equitable remedy under Virginia law, the alleged wrongdoing of the party seeking relief must have "encouraged, invited, aided, compounded, or fraudulently

induced" the other party's wrongful conduct. 594 S.E.2d 899, 908 (Va. 2004). the Defendants' by argument that

Perel v. Brannan,

The district court agreed with a credentialing false application information,

submitted

Gitter

contained

materially

thereby tainting him with unclean hands.

But it is undisputed

that Gitter's credentialing application was neither relied upon nor even reviewed by Defendants during their negotiations with Gitter, or at any time prior to their decision Thus, have to forego

consummating application,

Gitter's even if

employment misleading,

agreement. could not

Gitter's

"encouraged,

invited, aided, compounded, or fraudulently induced" Defendants to forego consummating the employment agreement. 3 Accordingly,

we find that the district court erred when it determined that Gitter's allegedly incorrect responses on his credentialing

application permitted invocation of the unclean hands doctrine under Virginia law. The district court's order is thus vacated

to the extent that it applied the unclean hands doctrine to bar Gitter from asserting that Defendants were equitably estopped from relying on a Statute of Frauds defense. The estoppel, "[e]lements a necessary of fraud to establish equitable are a

absent

showing

and

deception,

representation, reliance, a change of position, and detriment." See T--- v. T---, 224 S.E.2d 148, 151-52 (Va. 1976). Our review

of the magistrate judge's report and recommendation, which was summarily adopted in its entirety by the district court, reveals that the magistrate judge did not conclusively determine whether Gitter could establish the necessary elements of Virginia's

equitable estoppel doctrine based on his post-March 28, 2007 conduct (that is, 28, whether 2007 Gitter reasonably that the relied terms of on his

Defendants'

March

assurances

employment were agreed upon). Accordingly, we vacate the district court's order to the extent the court applied Virginia's unclean hands doctrine to bar Gitter from the from claiming the that Defendants of were equitably and

estopped remand to

asserting

Statute for 4 a

Frauds

defense, of

district court

determination

whether

Defendants

should

be

equitably

estopped

from

asserting

the

Statute of Frauds as a defense to Gitter's breach of contract claim. We We affirm the remainder of the district court's order. with oral argument because the facts and legal

dispense

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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