UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 C. Rogers appeals from the district court’s
orders dismissing her amended complaint 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 and statutory business conspiracy under Virginia
law. Rogers also argues that the district court erred in
granting summary judgment to Defendants without granting her
request for the opportunity to conduct discovery. We affirm.
We review de novo the district 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.” Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 251-52 (1986). To withstand a
summary judgment motion, the non-moving party must produce
competent evidence sufficient to reveal the existence of a
genuine issue of material fact for trial. See Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 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 were not caused by
Defendants’ breach of a valid contract. 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 judgment also was properly granted to
Defendants on Rogers’ claim under Va. Code Ann. §§ 18.2-499
& -500 (LexisNexis 2014) for business conspiracy. The district
court correctly determined that Defendants were entitled 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, and without lawful
justification”).
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Next, we conclude the district court did not
reversibly err in granting summary judgment to 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 denied, however, “if the additional evidence sought for
discovery would not have by itself created a genuine issue of
material fact sufficient to defeat summary judgment.” Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (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 Board of
Accountancy (“Board”) reprimanding Defendant Deane. 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 for supplementation of the record
fails as unnecessary. 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 on any of its rulings. Further, only
indisputable facts are subject to judicial notice. Fed. R.
Evid. 201(b); United States v. Zayyad, 741 F.3d 452, 463-64
(4th Cir. 2014). Although the filing by the Board of an order
reprimanding Deane is indisputable, the factual findings
contained therein are not.
We therefore deny Rogers’ motion to supplement and
request for judicial notice. We further deny Defendants’
request for sanctions. We affirm the district court’s judgment
and dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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