Edwina Rogers v. Jon Deane
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for judicial notice [999421365-2] Originating case number: 1:13-cv-00098-GBL-TRJ Copies to all parties and the district court/agency. [999470486].. [14-1156]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1156
EDWINA C. ROGERS,
Plaintiff - Appellant,
v.
JON DEANE, CPA; GAFFEY DEANE TALLEY, PLLC, a successor in
part to Murphy Deane & Company, PLC,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:13-cv-00098-GBL-TRJ)
Submitted:
October 27, 2014
Decided:
November 6, 2014
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven L. Gremminger, Steven M. Oster, GREMMINGER LAW FIRM,
Washington, D.C., for Appellant.
Dennis J. Quinn, Kristine M.
Ellison, CARR MALONEY PC, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Edwina
orders
C.
dismissing
Rogers
her
appeals
the
district
court’s
complaint
amended
from
and
granting
summary
judgment to Defendants on her second amended complaint alleging
claims for breach of contract, breach of the implied covenant of
good faith and fair dealing, and statutory business conspiracy.
Rogers
argues
on
appeal
that
the
district
court
erred
in
granting summary judgment to Defendants on her claims for breach
of
contract
law.
and
Rogers
granting
statutory
also
summary
argues
judgment
business
that
to
conspiracy
the
district
Defendants
review
de
novo
the
district
Virginia
court
without
request for the opportunity to conduct discovery.
We
under
erred
granting
in
her
We affirm.
court’s
award
of
summary judgment and view the facts in the light most favorable
to the non-moving party.
Woollard v. Gallagher, 712 F.3d 865,
873 (4th Cir.), cert. denied, 134 S. Ct. 422 (2013).
“Summary
judgment is appropriate only if the record shows ‘that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’”
Id. (quoting Fed. R.
Civ. P. 56(a)).
The relevant inquiry on summary judgment is “whether
the
evidence
presents
a
sufficient
disagreement
to
require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”
2
Anderson v. Liberty
Appeal: 14-1156
Lobby,
Doc: 39
Inc.,
summary
Filed: 11/06/2014
477
U.S.
judgment
competent
242,
motion,
evidence
251-52
the
sufficient
genuine
issue
of
material
Potomac
Elec.
Power
Co.,
Pg: 3 of 6
non-moving
to
fact
312
(1986).
party
reveal
for
F.3d
To
the
trial.
645,
withstand
must
649
produce
existence
See
(4th
a
of
Thompson
Cir.
a
v.
2002)
(“Conclusory or speculative allegations do not suffice, nor does
a
mere
scintilla
of
evidence
in
support
of
[the
non-moving
party’s] case.” (internal quotation marks omitted)).
We will
uphold the district court’s grant of summary judgment unless a
reasonable jury could return a verdict for the non-moving party
on the evidence presented.
See EEOC v. Cent. Wholesalers, Inc.,
573 F.3d 167, 174-75 (4th Cir. 2009).
Additionally, we may
affirm on any ground presented in the record, even if it was not
the basis on which the district court relied in granting summary
judgment.
Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132
(4th Cir. 2002).
We
conclude
after
review
of
the
record
and
the
parties’ briefs that the district court did not reversibly err
in granting summary judgment to Defendants on Rogers’ claims for
breach of contract and statutory business conspiracy.
Summary
judgment was properly granted to Defendants on Rogers’ claim for
breach of contract because it is clear from the evidence of
record
that
the
damages
Rogers
alleged
Defendants’ breach of a valid contract.
3
were
not
caused
by
See Filak v. George,
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594 S.E.2d 610, 614 (Va. 2004) (listing the elements of a breach
of contract action); see also Snyder-Falkinham v. Stockburger,
457 S.E.2d 36, 39 (Va. 1995) (listing the essential elements of
a valid contract); Valjar, Inc. v. Maritime Terminals, Inc.,
265 S.E.2d 734, 737 (Va. 1980) (“A contract cannot exist if the
parties never mutually assented to terms proposed by either as
essential
to
an
accord.”);
Roanoke
Hosp.
Ass’n
v.
Doyle
&
Russell, Inc., 214 S.E.2d 155, 160 (Va. 1975) (distinguishing
types of damages available in a contract action).
Summary
Defendants
on
judgment
Rogers’
claim
also
was
under
Va.
properly
Code
Ann.
granted
to
§§ 18.2-499
& -500 (LexisNexis 2014) for business conspiracy.
The district
court
entitled
correctly
determined
that
Defendants
were
to
judgment as a matter of law on this claim because the record
lacks evidence that Defendants acted with legal malice toward
Rogers’
business.
See
Multi-Channel
TV
Cable
Co.
v.
Charlottesville Quality Cable Operating Co., 108 F.3d 522, 526
(4th Cir. 1997) (noting the elements a plaintiff must establish
by
clear
and
convincing
evidence
to
prevail
on
a
claim
of
business conspiracy under Va. Code. Ann. §§ 18.2-499 & -500);
Simmons v. Miller, 544 S.E.2d 666, 677 (Va. 2001) (stating that
the element of legal malice requires proof that “the defendant
acted
intentionally,
purposefully,
justification”).
4
and
without
lawful
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Next,
reversibly
we
err
conclude
in
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the
granting
district
summary
court
judgment
did
to
not
Defendants
without granting Rogers’ request under Fed. R. Civ. P. 56(d) for
the opportunity to conduct depositions.
The rule requires “that
summary judgment be refused where the nonmoving party has not
had the opportunity to discover information that is essential to
his
opposition.”
Nguyen
v.
CNA
Corp.,
44
F.3d
234,
242
(4th Cir. 1995) (addressing predecessor to Rule 56(d)) (internal
quotation marks omitted).
Requests pursuant to the rule should
be
the
denied,
however,
“if
additional
evidence
sought
for
discovery would not have by itself created a genuine issue of
material fact sufficient to defeat summary judgment.”
Yelton,
439
F.3d
191,
195
(4th
Cir.
2006)
Ingle v.
(addressing
predecessor to Rule 56(d)) (internal quotation marks omitted).
The
record
in
this
case
does
not
suggest
any
basis
for
concluding that the discovery Rogers sought would have created
genuine
issues
of
material
fact
precluding
the
granting
of
summary judgment on Rogers’ claims for breach of contract and
statutory business conspiracy.
Finally,
Rogers
filed
during
the
pendency
of
this
appeal a motion to supplement the record that requests that we
take
judicial
notice
of
an
order
of
the
Virginia
Accountancy (“Board”) reprimanding Defendant Deane.
Board
of
Defendants
oppose the motion on the ground that the Board’s order does not
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meet any of the requirements for judicial notice under Fed. R.
Evid. 201 and request that we issue sanctions against Rogers’
counsel for their vexatious conduct in filing the motion.
Rogers’
request
fails as unnecessary.
for
supplementation
of
the
record
Although we have the authority under Fed.
R. App. P. 10(e)(2) and 4th Cir. R. 10(d) to order that the
record be supplemented with the Board’s order, there is no need
to do so in this case because the order was not presented to or
considered by the district court in the proceedings below and
thus
had
no
bearing
indisputable
Evid.
facts
201(b);
are
United
(4th Cir. 2014).
reprimanding
on
any
of
subject
States
its
to
v.
rulings.
judicial
Zayyad,
Further,
notice.
741
F.3d
only
Fed.
452,
R.
463-64
Although the filing by the Board of an order
Deane
is
indisputable,
the
factual
findings
contained therein are not.
We
request
therefore
deny
for
judicial
notice.
request for sanctions.
and dispense
contentions
with
are
oral
Rogers’
We
motion
to
further
supplement
deny
and
Defendants’
We affirm the district court’s judgment
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
6
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