Edwina Rogers v. Jon Deane, No. 14-1156 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1156 EDWINA C. ROGERS, Plaintiff - Appellant, v. JON DEANE, CPA; GAFFEY DEANE TALLEY, PLLC, a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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 Lobby, Inc., summary 477 U.S. judgment competent 242, motion, evidence 251-52 the sufficient genuine issue of material Potomac Elec. Power Co., non-moving to fact 312 (1986). party reveal for F.3d To the trial. 645, withstand must produce existence of See 649 a (4th 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, 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 Next, reversibly we err conclude in 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 5 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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