Derthick Associates v. Bassett Walker Inc

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DERTHICK ASSOCIATES, INCORPORATED;
RICHARD T. DERTHICK,
Plaintiffs-Appellants,

v. No. 95-2230

BASSETT-WALKER, INCORPORATED;
V F CORPORATION,
Defendants-Appellees.

STANLEY ROBBINS; STAN ROBBINS AND
ASSOCIATES, INCORPORATED,
Plaintiffs-Appellants,

v. No. 95-2231

BASSETT-WALKER, INCORPORATED;
V F CORPORATION,
Defendants-Appellees.

SLAYTON ASSOCIATES, INCORPORATED,
Plaintiff-Appellant,

v.
No. 95-2232
BASSETT-WALKER, INCORPORATED;
V F CORPORATION,
Defendants-Appellees.

Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CA-94-26-D, CA-94-27-D, CA-94-28-D)
Argued: May 6, 1996

Decided: February 12, 1997

Before RUSSELL and MICHAEL, Circuit Judges, and
PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Arthur McKee Wisehart, WISEHART & KOCH, New
York, New York, for Appellants. James Marion Powell, Brian Marc
Freedman, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES,
P.A., Greensboro, North Carolina, for Appellees. ON BRIEF: Stuart
L. Craig, CARTER, BASS, BLAIR & KUSHNER, Danville, Vir-
ginia, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM

This appeal ensued the grant of summary judgment in favor of
Bassett-Walker, Inc. and its parent, VF Corporation, on all claims
presented by each plaintiff-appellant. Our review of the award of
summary judgment is de novo. Higgins v. E.I. DuPont de Neumours
& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Having conducted that
review and having found no error, we affirm on the reasoning given
by the district court.

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I.

This litigation arose out of actions taken by Bassett-Walker to reor-
ganize and restructure its approach to the marketing of its fleecewear
products so that the company could remain competitive in an industry
which itself was undergoing substantial change. At the time of the
reorganization, each individual and corporate plaintiff was an inde-
pendent sales representative for Bassett-Walker. No plaintiff repre-
sented Bassett-Walker exclusively and none operated pursuant to a
written agreement.

Richard Derthick became a commissioned sales representative for
Bassett-Walker in 1968. Upon the advice of his accountant, Derthick
formed Derthick & Associates, a Michigan corporation which, in
1981, was reincorporated in Ohio. From 1968 until 1989, when the
relationship was terminated, Derthick, and then Derthick & Asso-
ciates, served as Bassett-Walker's sales representative in Michigan,
Ohio and Pennsylvania. Stanley Robbins and his company, Stan Rob-
bins & Associates, a Massachusetts corporation, served as commis-
sioned sales representatives for Bassett-Walker from 1965 until the
relationship was terminated in 1989. Slayton Associates, Inc. served
as a Bassett-Walker commissioned representative in Illinois and else-
where in the mid-west from 1967 until the relationship was termi-
nated in 1989. All of the terminations resulted from Bassett-Walker's
reorganization and restructuring.

Following the termination of their respective relationships, each
plaintiff, using the same counsel, filed an action in the United States
District Court for the Southern District of New York. The actions
were transferred to the Western District of Virginia where they were
consolidated for purposes of discovery and dispositive motions, but
not for trial.

Derthick and his company asserted claims: (1) for breach of con-
tract, contending that certain oral communications created a contract
between plaintiffs and Bassett-Walker that was terminable only for
cause; (2) for tortious interference with the relationships between
plaintiffs and the customers they had served while acting as Bassett-
Walker sales representatives;1 and (3) conversion of commissions
_________________________________________________________________
1 Count III contains language sounding of civil conspiracy, in reality,
the count asserts only a claim for tortious interference with business rela-
tions.

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claimed to be owing plaintiffs by virtue of purchases made from
Bassett-Walker by customers plaintiffs had served while acting as
Bassett-Walker sales representatives. Derthick, individually, also
asserted a claim under the Age Discrimination in Employment Act
("ADEA") 29 U.S.C. § 621, et seq.

Robbins and his company filed virtually identical claims to those
filed by Derthick and his company for breach of contract, tortious
interference with business relations and conversion. Robbins and his
company also filed a claim for wrongful termination under Massachu-
setts law and for violation of the Massachusetts unfair trade practices
law. Robbins, individually, filed an ADEA claim identical to that
filed by Derthick.

Slayton Associates filed claims, virtually identical to those filed by
Derthick and Robbins, for breach of contract, tortious interference
with business relations, and conversion. Slayton Associates also
alleged violations of the Illinois Deceptive Trade Practice Act and the
Illinois Consumers Fraud and Deceptive Business Practices Act.

II.

The district court first considered the ADEA claims advanced by
Derthick and Robbins, individually. The threshold issue was whether
the plaintiffs were employees under the ADEA which defines an
employee as "an individual employed by any employer." 29 U.S.C.
§ 630(f).

The district court correctly examined that issue by applying the
principles set forth in Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318 (1992), and Garrett v. Phillips Mills, Inc. , 721 F.2d 979 (4th Cir.
1983). Based on the essentially undisputed factual record, the district
court held that Derthick and Robbins were independent contractors,
not employees.2 For that reason, the district court held that Derthick
and Robbins were not entitled to bring a claim under the ADEA. An
examination of the record confirms that the district court was correct
in determining that Derthick and Robbins were independent contrac-
_________________________________________________________________
2 All three plaintiffs disputed the legal significance attached to the
facts, but the facts necessary to the decision were not in dispute.

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tors and that, therefore, they were not entitled to bring an ADEA
claim.

III.

The district court correctly described the contracts which allegedly
were breached by Bassett-Walker as oral agreements by which plain-
tiffs were to solicit orders for Bassett-Walker in certain geographic
areas in exchange for a commission which was a specified percentage
of the sales price. Upon an undisputed record, the district court deter-
mined that the agreements between each plaintiff and Bassett-Walker
were verbal. The district court applied Virginia law to resolve the
breach of contract claims3 and, thereupon, rightly held that the record
did not support the plaintiffs' contentions that their agreements were
terminable only for cause.4

Under Virginia law, a contract for services is terminable at will if
the intended duration of the contract cannot be reasonably inferred
from its terms. Miller v. SEVAMP, Inc., 362 S.E.2d 915, 916 (Va.
1987). And, if one party may terminate at will so may the other. Id.
All three plaintiffs asserted that they could terminate the agreements
at will. The plaintiffs had the burden of overcoming the terminable at
will presumption. Progress Printing Co. v. Nichols, 421 S.E.2d 428,
429 (Va. 1992). There was no evidence that the contracts were for a
specified duration. The district court held that vague comments by
Bassett-Walker executives were insufficient to overcome the pre-
sumption. And, therefore, Bassett-Walker was entitled to terminate its
agreements with plaintiffs at will. We find no error in that
determination.5
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3 By the time of summary judgment, it appeared to the district court
that the parties agreed that Virginia law was applicable to the breach of
contract claim. And, it appears to us that the district court was correct.

4 Because there was a contract, albeit verbal, the district court correctly
granted summary judgment on the plaintiffs' unjust enrichment claims.
5 Alternatively, the district court held that, even if the oral contracts
were not terminable at will, they ran afoul of Virginia's statute of frauds
(citing Graham v. Central Fidelity Bk., 428 S.E.2d 916 (Va. 1993), and
Windsor v. Aegis Service, Ltd., 691 F. Supp. 956 (E.D. Va. 1988), aff'd,

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Finally, the district court also properly rejected the plaintiffs' asser-
tion that, in terminating the plaintiffs' contracts, Bassett-Walker
breached a covenant of good faith and fair dealing. Virginia does not
recognize an independent claim for breach of such a covenant. Alter-
natively, the district court fully considered and rightly rejected claims
of that ilk under the law of Massachusetts and Illinois.

IV.

The district court also granted summary judgment on the plaintiffs'
claims that Bassett-Walker tortiously interfered with customer
accounts which the plaintiffs had solicited for Bassett-Walker. In so
doing, the district court decided: (i) that the contracts with which
Bassett-Walker allegedly had tortiously interfered were solicited, in
the first instance, by the plaintiffs for Bassett-Walker; and (ii) that
Bassett-Walker and its customers were the only parties to the con-
tracts with which Bassett-Walker allegedly had interfered. Both find-
ings were correct on the undisputed record relating to those questions.
In essence, as the district court observed, the plaintiffs' claims
reduced to the notion that Bassett-Walker had interfered with its own
accounts. For the reasons it gave, the district court correctly granted
summary judgment on the claims asserting tortious interference with
business relationships.

In a related component of the same claims, the plaintiffs asserted
interference with the same accounts by Bassett-Walker when, in sub-
sequent transactions with its customers, Bassett-Walker granted alleg-
edly preferential pricing terms to some large customers without
extending the same terms to Bassett-Walker customers which had
been serviced by the plaintiffs. The district court correctly held such
_________________________________________________________________
869 F.2d 796 (4th Cir. 1989). The district court was correct in reaching
that conclusion for the reasons it gave. The plaintiffs assert, for the first
time on appeal, that Bassett-Walker is equitably estopped from relying
on the statute of frauds. Because that theory was not presented to the dis-
trict court, we will not entertain it on appeal. This renders moot the
motion filed by Bassett-Walker to strike parts of the appellants' brief
respecting equitable estoppel and the related motion for sanctions.
Accordingly, both motions will be denied as moot.

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conduct not to have been actionable under the tort of interfering with
business relations.

Finally, Derthick & Associates asserted that Bassett-Walker inter-
fered with relations between Derthick & Associates and its employees
by offering some of those employees jobs after Bassett-Walker termi-
nated Derthick & Associates as a commissioned representative.
Applying Virginia law, the district court correctly held that, because
the relationships between Derthick & Associates and its own sales
persons were terminable at will, there could be no recovery on this
claim absent proof that Bassett-Walker had used improper means in
hiring the Derthick & Associates' sales persons. Considering that
Bassett-Walker had informed Derthick & Associates that it planned
to expand its in-house sales force and had sought, and received, the
permission of Derthick & Associates to talk to its sales persons about
employment with Bassett-Walker, the district court correctly held that
Bassett-Walker had used no improper means in hiring sales persons
employed by Derthick & Associates.

V.

Each plaintiff raised a claim that Bassett-Walker had committed
the tort of conversion by "taking accounts" which plaintiffs had solic-
ited for Bassett-Walker. The essence of these claims is that the plain-
tiffs are entitled to commissions on post-termination sales which were
made by Bassett-Walker's in-house sales staff to customers which
formerly had been serviced by plaintiffs on behalf of Bassett-Walker.
We understand that the basis for granting summary judgment on the
conversion claims was that the plaintiffs had no possessory interest in
commissions on sales made after the termination of their relationship
with Bassett-Walker, and we believe that the district court correctly
decided that question. As the district court held, there could be no
possessory interest in post-termination sales made by Bassett-Walker
to customers formerly serviced by the plaintiffs unless the plaintiffs'
termination was unlawful or unless there was a contract which con-
ferred an interest in commissions on post-termination sales. As the
district court held, the termination was lawful.

It is true that Bassett-Walker notified the plaintiffs of termination
on June 12, 1989 and allowed them to continue selling as representa-

7
tives through December 1, 1989 and agreed to pay commissions on
all orders shipped by May 31, 1990. However, there is no allegation
that Bassett-Walker failed in any way to live up to that agreement.

Therefore, there is no possessory interest. Absent such an interest,
conversion is not possible, as a matter of law.

VI.

The district court dismissed the Robbins plaintiffs' claims under
the Massachusetts Unfair Trade Practices Act because it found that,
under Massachusetts choice-of-law principles, Worldwide Commodi-
ties v. J. Amicone Co., Inc., 630 N.E.2d 615 (Mass. 1994), Virginia
law controlled the relationship of the parties and that, therefore, the
plaintiffs had no claim under the Massachusetts statute. Alternatively,
the district court held that, even if Massachusetts law were to apply,
the allegedly offending conduct did not occur "primarily and substan-
tially" in Massachusetts, which, under Gen. Laws Ann. ch. 93A, § 11,
is a predicate to the successful assertion of a claim under the Massa-
chusetts statute. We find no error in either conclusion.

VII.

The claim of Slayton Associates under the Illinois Sales Represen-
tations Act is, as the district court held, simply a recasting of its
breach of contract claim. Finding that the plaintiff had received all of
the commissions to which it was entitled, the district court granted
summary judgment on the claim. We agree.

The claims of Slayton Associates under the Illinois Deceptive
Trade Practices Act and the Consumer Fraud and Deceptive Business
Practices Act also were properly dismissed for the reasons given by
the district court. Indeed, the district court was charitable in not iden-
tifying those claims as frivolous.

VIII.

In their briefs before the district court, the plaintiffs argued that the
conspiracy language which appeared in their tortious interference

8
claims was sufficient to support a claim for a conspiracy to intention-
ally injure another in his trade, business or profession under Va. Code
Ann. § 18.2-499(A). As the district court held, the plaintiffs did not
properly plead, or offer evidence to support, a key element of a claim
cognizable under the Virginia statute. Specifically, they neither
alleged, nor offered evidence to support, the malice component
required under Virginia decisional law. Alternatively, applying the
intracorporate conspiracy doctrine as recognized under Virginia law,
Fox v. Deese, 362 S.E.2d 699 (Va. 1987), the district court held that
the conspiracy claim failed as a matter of law. We find no error in the
district court's determination on either issue.

CONCLUSION

Therefore, for the reasons given by the district court, the award of
summary judgment is

AFFIRMED.

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