Wilson v. Miller Auto Sales, Inc.

47 Va. Cir. 153, 1998 Va. Cir. LEXIS 291
CourtWinchester County Circuit Court
DecidedSeptember 17, 1998
DocketCase No. (Law) 97-281; Case No. (Law) 97-282; Case No. (Law) 98-26
StatusPublished
Cited by2 cases

This text of 47 Va. Cir. 153 (Wilson v. Miller Auto Sales, Inc.) is published on Counsel Stack Legal Research, covering Winchester County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Miller Auto Sales, Inc., 47 Va. Cir. 153, 1998 Va. Cir. LEXIS 291 (Va. Super. Ct. 1998).

Opinion

BY JUDGE JOHN E. WETSEL, JR.

This case came before (he Court on September 4,1998, on the Plaintiffs’ demurrers and pleas of the statute of limitations filed in response to the five count Counterclaim of Miller Auto Sales, Inc. Marilyn A. Solomon, Esquire, appeared for the Plaintiffs, and Brad D. Weiss and James A. Klenkar, Esquires, appeared for the Defendant Miller Auto Sales. After the Court announced some of its rulings, counsel for the Defendants asked for leave to file supplemental authorities, and the parties were directed to file any additional authorities which they wished the court to consider on or before September 9,1998, which authorities were filed and considered by the Court.

1. Upon consideration whereof, it is adjudged and ordered that Humble’s, Wilson’s, and Johnson’s demurrers to Miller Auto’s Counterclaim are overruled as to Count I, Statutory Conspiracy Count.

To recover in an action for conspiracy to harm a business, the plaintiff must prove (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business and (2) resulting damage to plaintiff. Allen Realty Corp. v. Holbert, 227 Va. 441, 318 S.E.2d 592 (1984); Meadow, Ltd. Partnership v. Heritage Sav. & Loan Ass'n 639 F. Supp. 643 (E.D. Va. 1986). Proof of civil conspiracy must be shown by clear and convincing evidence. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522 (4th Cir. 1997); Pierce Oil Co. v. Voran, 136 Va. 416, 430, 118 S.E. 247 (1923). “Any two or more persons who combine, associate or mutually undertake together for the purpose of willfully and maliciously injuring another in his ... trade, business or profession by any means whatsoever” shall be liable civilly for treble damages. Virginia Code §§ 18.2-499 and 18.2-500. These statutes “merely require the proof of legal malice, i.e., that ... [the defendant] acted intentionally, purposely, and without lawful justiflcation.”Commercial Business Systems v. BellSouth, 249 Va. 39, 47 (1995).

In CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 28, 431 S.E.2d 277 (1997), the Supreme Court discussed the elements of a viable civil conspiracy action:

[155]*155The second count deals with conspiracy, both common-law conspiracy and statutory conspiracy. The common law recognizes a cause of action against those who conspire to induce the breach of a contract, even when one of the alleged conspirators is a party to the contract. Worrie v. Boze, 198 Va. 533, 540-41, 95 S.E.2d 192, 198-99 (1956). “The gist of the civil action of conspiracy is the damage caused by the acts committed in pursuance of the formed conspiracy and not the mere combination of two or more persons to accomplish an unlawful purpose or use unlawful means.” Gallop v. Sharp, 179 Va. 335, 338, 19 S.E.2d 84, 86 (1942). To recover in an action for statutory conspiracy to harm a business, a plaintiff must prove a combination of two or more persons “for the purpose of willfiilly and maliciously injuring another in his reputation, trade, business or profession,” Code § 18.2-499, and resulting damage to the plaintiff, Code § 18.2-500. Allen Realty Corp. v. Holbert, 227 Va. 441, 449, 318 S.E.2d 592, 596 (1984). See Tazewell Oil Co. v. United Va. Bank, 243 Va. 94, 107-09, 413 S.E.2d 611, 618-19 (1992).

Count I of Miller’s counterclaim is a statutory conspiracy action based on Virginia Code § 18.2-499 etseq. Given the Court’s ruling on the defamation counts, it would appear that the conspiracy action to survive would have to be based on the Plaintiffs’ alleged concerted actions to interfere with Miller’s employment relationship with its employee, Jackson. Drawing all inferences in favor of the pleading, Count I of Miller’s Counterclaim will withstand demurrer.

2. Humble’s, Wilson’s, and Johnson’s demurrers to Miller Auto’s Counterclaim are overruled as to Count II, Tortious Interference with a Contractual Relationship.

The tort of interference with an existing at will contract is comprised of four elements:

1. The existence of the contract.
2. Knowledge of the existence of a contract on the part of the defendant.
3. “The use of improper methods in the intentional interference causing a termination of the contract.”
4. Resulting damage to the party whose contract was disrupted.

See, Hilb, Rogal and Hamilton Co. of Richmond v. Depew, 247 Va. 240, 245-246, 440 S.E.2d 918 (1994).

While, there is no technical requirement as to the kind of wrongful conduct that constitutes interference, examples of such conduct include false and [156]*156defamatory statements, fraud and misrepresentation, coercion, violence or threats of violence, persuasion or inducement to breach, informing an employer of an employee’s debt. See, generally Restatement (2d) of Torts, § 766, Comment K (1977). However, the interference must be both intentional and accomplished through improper methods. Duggin v. Adams, 234 Va. 221, 227-228, 360 S.E.2d 832 (1987). Generally, it is a jury question as to whether the actor’s methods are improper.

Proof of actual malice or ill will is not necessary in order to recover for a breach of an existing contract that is not terminable at will. Chaves v. Johnson, 230 Va. 112, 121, 335 S.E.2d 97 (1985). What is required is legal malice, which is defined as the intentional doing of a harmful act without legal justification or excuse. Consequently, legal malice is proven where it is proven that the defendant had knowledge or grounds to know of the contract or expectation and induced a party to breach the contract or thwart the economic expectation without justification. However, actual malice is required in order to obtain an award of punitive damages. Worrie v. Boze, 198 Va. 533, 543, 95 S.E.2d 192 (1956).

“In the context of causes of action involving interference with a business relationship, freedom of action is balanced against protection of the business relationship involved to determine whether the affirmative defense of justification or privilege precludes liability for actions which would otherwise be culpable.” Chaves, 230 Va. at 121, 335 S.E.2d at 103.

In this case, die plaintiffs complained to higher management about the conduct of Jackson, a co-employee. If those complaints were fabricated to get Miller to fire Jackson, and Miller as a result fired Jackson, then a viable inference with an existing contractual relationship could be asserted; therefore, Count II will withstand demurrer.

3. Humble’s, Wilson’s, and Johnson’s demurrers to Miller Auto’s Counterclaim are sustained as to Count DI, Tortious Interference with Business Relations.

In Allen Realty Corp. v.

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