RehabCare Group East, Inc. v. BROC L.L.C. et al
Filing
29
MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 4/24/18. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
REHABCARE GROUP EAST, INC. ,
Plaintiff,
v.
BROC L.L.C. and BRNURSCO, LLC,
Defendants.
)
)
)
)
)
)
)
)
)
APR 24 2018
Case No. 4:17-cv-00043
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge
This matter is before the Court on Plaintiff RehabCare Group East, Inc.’s (“RehabCare”)
Motion for Partial Summary Judgment (“the Motion”). Defendants BROC, LLC (“BROC”) and
BRNURSCO, LLC (“BRNURSCO”), collectively “Defendants,” filed a brief in opposition, and
RehabCare replied pursuant to the amended Pretrial Order. [ECF No. 21.] The parties submitted
the matter on brief, waiving their right to oral argument before the Court. I have reviewed the
briefs of the parties and the relevant evidence, and the matter is ripe for disposition. For the
reasons stated herein, I will deny the Motion with respect to BROC and grant the Motion in part
with respect to BRNURSCO. I find that BRNURSCO did breach an implied contract with
RehabCare, entitling RehabCare to summary judgment on Count II of its Complaint.
I.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
The parties agree on the relevant facts, and dispute only the legal significance of their
actions. Prior to 2015, BROC owned and operated Blue Ridge Rehab Center (“the facility”). On
November 4, 2013, RehabCare and BROC entered into a Therapy Services Agreement (“the
TSA”), which generally obligated RehabCare to provide therapists and therapy services to
patients of the facility, and obligated BROC to pay RehabCare according to an agreed fee
schedule. [ECF No. 26-1, pgs. 117–137.]1 Up until July of 2015, there appears to have been no
issue with this arrangement.
On July 30, 2015, BROC and BRNURSCO entered into an Operations Transfer
Agreement (“the OTA”) in which BROC transferred its ownership and management of the
facility to BRNURSCO. [ECF No. 26-1, pgs. 214–232.]
At the time the OTA was entered, none of the parties appear to have made attempts to
have BRNURSCO assume the TSA. Nevertheless, RehabCare continued to provide therapy
services at the facility under BRNURSCO’s management. No express agreement was entered
into between RehabCare and BRNURSCO. Over the next two years (August 1, 2015–July 31,
2017), RehabCare provided therapy services at the facility totaling over $2 million. According
to Michael Marshall (“Marshall”), BROC and BRNURSCO’s corporate representative,
BRNURSCO paid for some of those services. Other invoices, however, went unpaid. In its
answers to interrogatories, BRNURSCO asserted that it failed to pay because of improper billing
to third-party payors, such as Medicare. [ECF No. 26-1, pgs. 179, 194.] At the deposition of
BRNURSCO’s corporate representative, Marshall admitted that BRNURSCO was indebted to
RehabCare. [ECF No. 26-1, pg. 261 (“I wanted to clarify that there is an amount indebted to the
plaintiff.” (emphasis added)).]
RehabCare brought suit against BROC and BRNURSCO in this Court on June 28, 2017.
(Compl. ¶¶ 2–3 [ECF No. 1].) On July 31, 2017, RehabCare informed BRNURSCO that it was
terminating its services at the facility due to BRNURSCO’s failure to pay. [ECF No. 26-1, pg.
251.]
On March 27, 2018, RehabCare moved for summary judgment against BROC and
BRNURSCO on Count I, which alleged breach of the TSA, and for summary judgment against
1
Evidence is referred to by its Electronic Court Filing (“ECF”) number and corresponding “pageid#” on
the Court’s electronic docket.
-2-
BRNURSCO on Counts II (quantum meruit) and III (unjust enrichment). (See Mot. for Partial
Summ. J., Mar. 27, 2018 [ECF No. 25].) The matter was fully briefed by the parties, and the
parties jointly waived a hearing on the Motion and submitted the matter for consideration on the
briefs. (See id.) The matter is ripe for disposition.
II.
STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine dispute of material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); George & Co. LLC
v. Imagination Entertainment Ltd., 575 F.3d 383, 392 (4th Cir. 2009). A genuine dispute of
material fact exists “[w]here the record taken as a whole could . . . lead a rational trier of fact to
find for the nonmoving party.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal quotation
marks and citing reference omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine dispute cannot be created where there is only a scintilla of evidence favoring
the nonmovant; rather, the Court must look to the quantum of proof applicable to the claim to
determine whether a genuine dispute exists.
Scott v. Harris, 550 U.S. 372, 380 (2007);
Anderson, 477 U.S. at 249−50, 254. A fact is material where it might affect the outcome of the
case in light of the controlling law. Anderson, 477 U.S. at 248. On a motion for summary
judgment, the facts are taken in the light most favorable to the non-moving party insofar as there
is a genuine dispute about those facts. Scott, 550 U.S. at 380. At this stage, however, the
Court’s role is not to weigh the evidence, but simply to determine whether a genuine dispute
exists making it appropriate for the case to proceed to trial. Anderson, 477 U.S. at 249. It has
been noted that “summary judgment is particularly appropriate . . . [w]here the unresolved issues
are primarily legal rather than factual” in nature. Koehn v. Indian Hills Cmty. Coll., 371 F.3d
394, 396 (8th Cir. 2004).
-3-
III.
DISCUSSION
All parties agree that Virginia law applies. It is well-settled that a federal court, sitting in
diversity, applies the choice of law provisions of the state in which it sits. See Erie E. Co. v.
Tompkins, 304 U.S. 64, 78 (1938); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941). Under Virginia’s conflict of law rules, “[q]uestions concerning the validity, effect,
and interpretation of a contract are resolved according to the law of the state where the contract
was made.” Seabulk Offshore v. Am. Home. Assur. Co., 377 F.3d 408, 419 (4th Cir. 2004)
(applying Virginia law). With respect to the TSA, it states that it “shall be construed under, and
governed in accordance with, the laws of the state in which Facility is located.” [ECF No. 26-1
pg. 126 ¶ 7.k.] Therefore, claims asserting breach of the TSA are evaluated under Virginia law.
Regarding the implied contract claims, Virginia holds that “a contract is made when its last act to
complete it is performed . . . .” Metcalfe Bros., Inc. v. Am. Mut. Liab. Ins. Co., 484 F. Supp.
826, 829 (W.D. Va. 1980). Given that the implied contract claims all concern the provision of
services at a Virginia-based skilled care facility, it seems apparent that the last act occurred in
Virginia.
a. Count I—Breach of Contract: Agreement as to BROC or BRNURSCO
RehabCare first moves for summary judgment on its breach of contract (the TSA) against
both BROC and BRNURSCO. These two defendants must be considered separately, as only one
was a signatory to the contract at issue.
“The elements of a breach of contract action are (1) a legally enforceable obligation of a
defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and (3) injury
or damage to the plaintiff caused by the breach of obligation.” Filak v. George, 594 S.E.2d 610,
614 (Va. 2004). As to BROC, there is no dispute that there was a legally enforceable agreement
-4-
between RehabCare and BROC. What is disputed, however, is whether BROC breached that
agreement when it failed to pay for services rendered by RehabCare after the OTA took effect.
On this point, the TSA gives a clear answer: RehabCare was under no contractual
obligation to provide services, and BROC was under no obligation to pay for services rendered,
after the OTA took effect. By its terms, the TSA obligated RehabCare to “provide therapy
services to patients of Facility . . . .” [ECF No. 26-1 pg. 117 ¶ 1.a.] “Facility” is defined as
“BROC L.L.C. d/b/a Blue Ridge Rehab Center.” (Id.) Once the OTA was signed, the patients at
the Blue Ridge Rehab Center were not patients of BROC, but were patients of BRNURSCO.
Accordingly, the services provided by RehabCare after August 1, 2015, were not services under
the contract with BROC, and BROC did not breach the TSA when it failed to pay for services
rendered to a third party. In the absence of a breach, RehabCare is not entitled to summary
judgment against BROC on Count I.
As to BRNURSCO, RehabCare contends that the OTA obligated BRNURSCO to assume
the TSA, and that once the OTA became operative, BRNURSCO became obligated to perform
under the TSA. To this end, RehabCare points to certain provisions of the OTA, only one of
which arguably applies:2
Following the Closing Date, if permitted by the terms of the
applicable agreement, Transferor [BROC] agree [sic] to promptly
assign to New Operator [BRNURSCO], and New Operator shall
accept and assume, any agreement related to the operation of the
Facility (other than real property leases and personal property
leases relating solely to the Facility) . . . .
2
RehabCare points to the provision in paragraph 2.6 in support of its argument. The operative portion in
that paragraph reads: “New Operator [BRNURSCO], to the extent it utilizes the services provided by
third parties, shall be responsible for, and shall pay on a timely basis, any claims or charges which are due
to such third parties arising from the use, operation or control of the Facility from and after the Closing
Date.” [ECF No. 26-1 pg. 219 ¶ 2.6.] This paragraph has nothing to do with the assumption of a contract
with a third party. Rather it is standard, boilerplate language obligating BRNURSCO to pay any bills it
incurs after taking over operation of the facility and absolves BROC of bills incurred after BRNURSCO
took over.
-5-
[ECF No. 26-1 pg. 221 ¶ 2.16.] RehabCare is correct that this provision concerns the assumption
of contracts with third parties. What it overlooks, however, is the phrase, “if permitted by the
terms of the applicable agreement . . . .”
“When the terms of [a contract] are clear and definite, it is axiomatic that they are to be
applied according to their ordinary meaning. Where there is no ambiguity in the terms of a
contract, [the court] must construe it as written . . . .” Smith v. Smith, 351 S.E.2d 593, 595–96
(Va. Ct. App. 1986) (citing Amos v. Coffey, 320 S.E.2d 335, 337 (Va. 1984); Quillen v. Titue, 2
S.E.2d 284, 287 (Va. 1939); Potts v. Mathieson Alkali Works, 181 S.E. 521, 532 (Va. 1935)).
Turning to the TSA—the applicable agreement—it spells out how the TSA may be
assigned or assumed by an entity not a party to the contract:
Any such assumption of this Agreement shall be pursuant to an
assignment and assumption agreement executed by the Vice
President of Finance and Controller of RehabCare, a duly
authorized representative of Facility, and the successor operator
pursuant to which Facility assigns its rights under this Agreement
to such successor operator, and such successor operator assumes
Facility’s obligations hereunder, in each case with respect to
periods from and after the effective date of the Facility Operator
Change.
[ECF No. 26-1 pg. 122 ¶ 5.c.ii.] Even if the OTA suffices as an agreement by which BROC
assigned its rights under the TSA to BRNURSCO, RehabCare has failed to establish that its
necessary contractual obligations—an assignment and assumption executed by RehabCare’s
Vice President of Finance—was completed.
Absent such a showing, RehabCare has not
established that BRNURSCO properly assumed the TSA, and therefore it is not entitled to
summary judgment on Count I against BRNURSCO.
Moreover, the TSA states that “[n]either party may assign its rights or obligations
hereunder without the prior written approval of the other; provided, however, that such an
-6-
assignment may be made to an entity which is related by virtue of a common parent corporation
or which is directly or indirectly wholly owned or controlled by the same entity as the assigning
party.” [ECF No. 26-1 pg. 127 ¶ 7.q.] RehabCare has not offered evidence to show that BROC
and BRNURSCO, despite sharing a corporate representative, have a common parent corporation.
Likewise, the evidence has not established that BRNURSCO is “directly or indirectly controlled
by the same entity” as BROC. Without such evidence, I cannot say that any assignment or
assumption, even assuming that one took place, was valid.
It should be apparent why such contractual niceties must be followed prior to the
assignment or assumption of a contract. When two parties contract with one another, they
presumably know enough about the other party to agree to enter into a contractual relationship.
When a third party assumes that contract, one of the original parties is forced into a contractual
relationship with one to whom it may not wish to be bound. Accordingly, in such an instance, it
is vital that the necessary steps, which are spelled out in the contract, be followed. Here,
RehabCare agreed (in the TSA) that the contract would be assignable under certain
circumstances and after specific steps were taken. Those steps do not appear to have been
followed here. Had BROC attempted to assign the TSA to an entity RehabCare did not believe
could satisfy its obligations, it would have been free not to enter into the necessary “assumption
and agreement.” By failing to do so in its dealings with BRNURSCO, RehabCare has not shown
a valid assumption of the TSA by BRNURSCO.
In the absence of a valid assumption,
BRNURSCO was not bound by the terms of the TSA, and RehabCare is not entitled to summary
judgment for breach of the TSA against BRNURSCO.
-7-
b. Count II—Implied Contract/Quantum Meruit as to BRNURSCO
In the absence of an express contract between two parties, the law will occasionally
imply a contract in order to avoid the injustice of one party accepting the goods or services of
another without paying for them.
“Virginia distinguishes between two types of implied
contracts: contracts that are implied-in-fact and contracts that are implied-in-law. An implied-infact contract is an actual contract that was not reduced to writing, but the court infers the
existence of the contract from the conduct of the parties.” Rosetta Stone Ltd. v. Google, Inc.,
676 F.3d 144, 166 (4th Cir. 2012) (citing Nossen v. Hoy, 750 F. Supp. 740, 744 (E.D. Va.
1990)). “The quasi-contract, or contract implied-in-law, is not a contract within the generallyaccepted meaning but is an equitable concept to prevent unjust enrichment. It resembles a duty
to make restitution and imposes and obligation to pay even though no intention of the parties to
bind themselves can be discerned.” In re MBA, Inc., 51 B.R. 966, 974–75 (Bankr. E.D. Va.
1985). The breach of an implied-in-fact contract is often call “quantum meruit,” whereas a
breach of an implied-in-law contract is often called “unjust enrichment.” Baudean v. Pearson
Education, Inc., No. 3:14cv685, 2015 WL 3651199, at *8 (E.D. Va. June 11, 2015) (citing
Seagram v. David’s Towing & Recovery, Inc., 62 F. Supp. 3d 467, 477 (E.D. Va. 2014)).
Although Defendants rightly assert that the terms “quantum meruit,” “unjust enrichment,” and
“contract implied-in-law” are often used interchangeably, see id. at *8 n.24, “quantum meruit”
and “unjust enrichment” are each “technically a distinct cause of action, [although] the desired
result of both is the same—that the plaintiff who provided a benefit or service to the defendant
receives compensation for that benefit or service,” Seagram, 62 F. Supp. 3d at 477.
“Like an express contract, an implied-in-fact contract is created only when the typical
requirements to form a contract are present, such as consideration and mutuality of assent.”
-8-
Spectra-4, LLP v. Uniwest Commercial Realty, Inc., 772 S.E.2d 290, 295 (Va. 2015) (citing City
of Norfolk v. Norfolk Cnty., 91 S.E. 820, 821–22 (Va. 1917)). “[A]n implied-in-fact contract ‘is
arrived at by a consideration of [the parties’] acts and conduct.’” Id. (quoting City of Norfolk, 91
S.E.2d at 821). “Thus, where a contract has been formed based on the parties’ conduct, but
nothing has been said regarding compensation, the law provides that the person who performs
the services shall be paid for the reasonable value of the work performed.” Seagram, 62 F. Supp.
3d at 477 (citing Mangold v. Woods, 677 S.E.2d 288, 292 (Va. 2009)).
In the present case, BRNURSCO admits that there was an implied-in-fact contract
between it and RehabCare. (Defs.’ Mem. in Opp. to Pl.’s Partial Mtn. for Summ. J. pg 10–11
[ECF No. 27] (“With respect to BRNURSCO, RehabCare’s evidence and argument establishes a
claim for breach of an implied-in-fact contract . . . .”).) Accordingly, summary judgment is
appropriate on Count II (Implied Contract/Quantum Meruit) as to BRNURSCO.
Strangely, despite admitting the existence and its breach of an implied-in-fact contract
with RehabCare, BRNURSCO opposes summary judgment on Count II. It argues that, because
there was an implied-in-fact contract between it and RehabCare, an implied-in-law contract
cannot exist, and thus RehabCare is not entitled to prevail on Count II.
Presumably,
BRNURSCO reads the heading of Count II—“Implied Contract/Quantum Meruit”—as asserting
an implied-in-law contract. But those courts that have squarely addressed the difference between
the terms agree: quantum meruit is the term used to refer to the cause of action for breach of an
implied-in-fact contract. Accord Baudean, 2015 WL 3651199, at *8; Seagram, 62 F. Supp. 3d at
477; Commonwealth Group-Winchester Partners, L.P. v. Winchester Warehousing, Inc., No. ,
2007 WL 2570218, at *9 (W.D. Va. Aug. 31, 2007) (citing Nossen, 750 F. Supp. at 744);
Campbell Cnty. v. Howard, 112 S.E. 876, 885 (Va. 1922) (“And generally, in the class of cases
-9-
involving only purely personal services, unattended with any actual transferring or tangible
property, in the absence of special contract to the contrary, express or implied in fact (as
distinguished from one which the law implies), the sole measure of recovery is the value of the
work done, on a quantum meruit.”). Thus, even granting BRNURSCO the argument that the
heading on Count II is controlling, Count II plainly asserts a claim for breach of an implied-infact contract.3
Even without BRNURSCO’s admission that there was an implied-in-fact contract, the
evidence leads to the inexorable conclusion that: (1) there was an implied-in-fact contract
between the parties; and (2) BRNURSCO breached it. Under Virginia law, the elements of a
claim for quantum meruit, or breach of an implied-in-fact contract, are:
(1) a benefit conferred on the defendant by the plaintiff;
knowledge on the part of the defendant of the conferring of
benefit; and (3) acceptance or retention of the benefit by
defendant in circumstances that render it inequitable for
defendant to retain the benefit without paying for its value.
(2)
the
the
the
EDI Precast, LLC v. Mid-Atlantic Precast, LLC, No. 3:12-cv-00012, 2012 WL 2343033, at * 3–
4 (W.D. Va. June 20, 2012) (quoting MP Leasing Corp. v. Colonna’s Shipyard, No. 2:07cv273,
2009 WL 2581575, at *4 (E.D. Va. May 8, 2009) (citations omitted)). If proven, a plaintiff is
entitled to “the reasonable value of the work performed.” Seagram, 62 F. Supp. 3d at 477 (citing
Mangold v. Woods, 677 S.E.2d 288, 292 (Va. 2009)).
The facts here unmistakably establish RehabCare’s claim for quantum meruit. There is
no dispute that RehabCare, in providing therapy services at BRNURSCO’s facility, conferred a
benefit on BRNURSCO. And there is no dispute that BRNURSCO knew it was receiving
services from RehabCare. Finally, it would certainly be inequitable to permit BRNURSCO to
3
Even if Count II did assert the contradictory claims of breach of an implied-in-fact contract (quantum
meruit) and breach of an implied-in-law contract (unjust enrichment), such contradictory pleading is
expressly permitted. See Fed. R. Civ. P. 8(d).
- 10 -
receive over $2 million worth of services without paying for them. By failing to pay for the
services it received from RehabCare, BRNURSCO breached its implied-in-fact contract with
RehabCare, and RehabCare is entitled to summary judgment against BRNURSCO on Count II.
c. Count III—Unjust Enrichment as to BRNURSCO
A claim for unjust enrichment, or breach of an implied-in-law contract, see Seagram, 62
F. Supp. 3d at 477 (citing Po River Water & Sewer Co. v. Indian Acres Club of Thornburg, Inc.,
495 S.E.2d 478, 482 (Va. 1998)), does not lie where the parties’ actions created an implied-infact contract. See Rosetta Stone, 676 F.3d at 166 (“[T]he concept of an implied-in-law contract,
or quasi-contract, applies only where there is not an actual contract or meeting of the minds.”); In
re MBA, 51 B.R. at 974–75 (“A court properly resorts to quasi-contract only in the absence of an
express contract or contract implied-in-fact, and only when it would be unfair for the recipient to
keep a benefit without paying for it.” (citing Bloomgarden v. Coyer, 479 F.2d 201 (D.C. Cir.
1973))). Because there was an implied-in-fact contract, RehabCare is not entitled to summary
judgment against BRNURSCO on Count III.
d. Damages
Turning to the measure of damages on Count II, BRNURSCO asserts that RehabCare has
failed to establish that what it charged for its services was “reasonable.” I find that argument
unpersuasive. The evidence shows that the Fee Schedule in the TSA was reasonable and
appropriate with RehabCare’s prior customer, BROC, and that BRNURSCO took no issue with
the reasonableness of RehabCare’s fees when it paid some of its invoices. I find that RehabCare
has proven the reasonableness of its fees.
Even if the fees were not reasonable, the implied-in-fact contract between RehabCare and
BRNURSCO set the terms of the agreement between the parties, terms which included the fees.
- 11 -
“With implied-in-fact contracts, the parties’ conduct . . . establish[es] what the terms of the
contract are.” Spectra-4, LLP v. Uniwest Commercial Realty, Inc., 772 S.E.2d 290, 295 (Va.
2015). Here, BRNURSCO acted in accordance with the Fee Schedule when it paid some of
RehabCare’s invoices. In her affidavit, Marjorie Daniels stated that BROC and BRNURSCO
“requested that RehabCare continue to provide services to the Facility as set forth in the TSA,”
which included the Fee Schedule. [ECF No. 26-1 pg. 113 ¶ 3 (emphasis added).] By its actions,
BRNURSCO adopted and incorporated the TSA Fee Schedule into its contract with RehabCare.
Therefore, even if the fees were not reasonable, RehabCare would nevertheless be entitled to
them because BRNURSCO agreed to them. Cf. Seagram, 62 F. Supp. 3d at 477 (citing Mangold
v. Woods, 677 S.E.2d 288, 292 (Va. 2009)) (holding that the appropriate measure of damages is
the reasonable value of the work performed when nothing has been said between the parties
regarding compensation).
RehabCare is entitled to recover the full amount it billed
BRNURSCO. Based on the evidence and affidavit of Marjorie Daniels, judgment will be
entered against BRNURSCO for the entire outstanding balance: $2,182,109.04.
RehabCare also seeks both pre-judgment and post-judgment interest. “[T]he award of
prejudgment interest is a matter within the Court’s discretion.” Tattoo Art, Inc. v. TAT Int’l,
LLC, 794 F. Supp. 2d 634, 663 (E.D. Va. 2011), aff’d 498 F. App’x 341 (4th Cir. 2012).
Although there is evidence that BRNURSCO asked RehabCare to continue providing services
under the TSA,4 there is no evidence that BRNURSCO acquiesced to the late payment fees and
4
Although BRNURSCO acted in accordance with the TSA in many respects, its actions did not establish
an intent to be bound by all the terms of the TSA. “In limited circumstances, an implied-in-fact contract
may encompass the totality of an express contract simply by way of the parties acting in a manner
consistent with such an express contract. But it is only when the parties to an express contract continue to
act as if that contract is still operative even after it expires that the entirety of ‘the material terms of the
prior contract . . . survive intact’ by way of a subsequently formed implied-in-fact contract.” Spectra-4,
772 S.E.2d at 295 (quoting Luden’s Inc. v Local Union No. 6 of the Bakery, Confectionery & Tobacco
Workers’ Int’l Union, F28 F.3d 347, 355–56 (3rd Cir. 1994)). “[T]he logic recognized in Luden’s Inc.
- 12 -
interest under the TSA. Pre-judgment interest at the statutory rate in Virginia, however, is
appropriate given BRNURSCO’s its admission that an implied-in-fact contract existed but its
refusal to pay under that contract. Cf. Kenney v. Palmer-Stuart Oil Co., Inc., No. 3:17cv00053,
2017 WL 4581800, at *4 (W.D. Va. Oct. 13, 2017). Pre-judgment interest is also appropriate
due to the need to make RehabCare whole. “The award of prejudgment interest is to compensate
Plaintiff for the loss sustained by not receiving the amount to which he was entitled at the time
he was entitled to receive it, and such award is considered necessary to place the [plaintiff] in the
position he would have occupied if the party in default had fulfilled his obligated duty.” Marks
v. Sanzo, 345 S.E.2d 263, 267 (Va. 1986) (quoting Employer-Teamsters Joint Council No. 84,
Health & Welfare Fund v. Weatherall Concrete, Inc., 468 F. Supp. 1167, 1171 (S.D.W. Va.
1979)). Accordingly, RehabCare is entitled to pre-judgment interest at a rate of six percent (6%),
see Va. Code Ann. § 6.2-302 (2017), totaling at least $114,242.63, as well as post-judgment
interest as set forth in 28 U.S.C. § 1961.5
IV.
CONCLUSION
For the foregoing reasons, BROC is not bound under the TSA to pay for services
rendered to BRNUSCO, and RehabCare has failed to show that the TSA was properly assumed
by BRNURSCO. Summary judgment is not appropriate on Count I. As to Count II, there was
applies only to those specific circumstances: when the same parties are engaged in the same course of
dealing both during and after the expiration of the express contract. Absent such circumstances, an
implied-in-fact contract may include only the particular terms of a previously expired express contract
which the parties’ subsequent actions, embodying their mutuality of assent, specifically encompass.” Id.
at 269 (citing Green’s Ex’rs v. Smith, 131 S.E. 846, 848 (Va. 1926); City of Norfolk, 91 S.E.2d at 821–
22). RehabCare has failed to show that BRNURSCO assented to the interest and late fee provisions of
the TSA, therefore those terms are not part of the implied-in-fact contract between RehabCare and
BRNURSCO.
5
The prejudgment calculation is through the date of this Memorandum Opinion. Entry of judgment will
be delayed fourteen (14) days to permit RehabCare to submit its request for fees and costs under Fed. R.
Civ. P. 54(d), and to permit the parties to offer the court a resolution on the remaining counts of the
Complaint, if necessary. Prejudgment interest will continue to accrue at the 6% rate until judgment is
entered.
- 13 -
an implied-in-fact agreement between RehabCare and BRNURSCO, which BRNURSCO
breached. Summary judgment is appropriate against BRNURSCO on Count II. Summary
judgment on Count II precludes summary judgment on Count III under Virginia law. RehabCare
is entitled to judgment against BRNURSCO totaling $2,182,109.04, plus pre- and post-judgment
interest as set forth herein.
The parties are instructed to inform the court if a trial on this matter is necessary. If no
other proceedings are necessary and if there is a request for fees or costs, such a request must be
filed within fourteen (14) days from the date of this Memorandum Opinion.
The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
Order to all counsel of record.
Entered this 24th day of April, 2018.
s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE
- 14 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?