Present: All the Justices 

TIMOTHY R. RASH, ET AL. 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 950896 March 1, 1996 

HILB, ROGAL & HAMILTON 

COMPANY OF RICHMOND 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Randall G. Johnson, Judge 

 I. 

 In this appeal, we consider issues that arose during the 

trial of a suit in equity for a breach of contract, tortious 

interference with contractual relations, and common law 

conspiracy. 

 II. 

 Hilb, Rogal & Hamilton Company of Richmond (HRH) filed its 

amended bill of complaint against Susan M. Rash, Timothy R. Rash, 

and Rash & Associates, Inc., a Virginia corporation. HRH alleged 

that Mr. Rash breached his employment agreement, which included a 

covenant not to compete. HRH further alleged that Mrs. Rash 

tortiously interfered with its contractual relations and that Mr. 

and Mrs. Rash had engaged in a common law conspiracy. HRH sought 

damages, injunctive relief, costs, and attorney's fees. 

 At the conclusion of an ore tenus hearing, the chancellor 

held that these allegations had been proven. The chancellor 

assessed damages against the Rashes and Rash & Associates and 

awarded costs, attorney's fees, and certain injunctive relief. 

The chancellor held that the Rashes and Rash & Associates are 

jointly and severally liable to HRH in the amount of $111,891, 

which was stipulated by the litigants to be 75% of all 

commissions that Mrs. Rash or Rash & Associates received from 
certain accounts that were formerly serviced by HRH. The 

chancellor's decree established a constructive trust requiring 

that Mrs. Rash and Rash & Associates, as constructive trustees, 

pay to HRH 75% of all commissions earned from certain accounts 

that were formerly serviced by HRH. The Rashes and Rash & 

Associates appeal. 

 III. 

 When a chancellor hears evidence ore tenus, his decree is 

entitled to the same weight as a jury verdict, and we are bound 

by the chancellor's findings of fact unless they are plainly 

wrong or without evidence to support them. Morris v. Mosby, 227 

Va. 517, 522, 317 S.E.2d 493, 497 (1984). Additionally, we will 

review the evidence and all reasonable inferences fairly deduced 

therefrom in the light most favorable to HRH, the prevailing 

party below. Id.

 HRH is an insurance sales firm which sells various types of 

insurance, including insurance benefits products. In September 

1990, HRH purchased certain tangible and intangible assets of The 

James River Financial Group, Inc., including its division that 

sold insurance benefits products. 

 As employees of the James River Financial Group, the Rashes 

were involved in the marketing of benefits insurance products. 

Mr. Rash was part owner of the James River Financial Group, and 

he received a portion of the purchase price when HRH acquired the 

James River Financial Group's assets. 

 After HRH acquired the James River Financial Group's assets, 

Mr. Rash became a senior vice president of HRH. In this 

capacity, he was in charge of HRH's group benefits division. Mr. 
Rash's employment agreement with HRH, which he signed after 

consultation with legal counsel, contains a covenant that 

prohibits him from competing directly or indirectly against HRH 

upon termination of his employment. 

 Mrs. Rash also became an employee of HRH. She worked as a 

benefits consultant for HRH and, in that capacity, she had 

complete access to HRH's confidential customer and business 

information. She also worked closely with Mr. Rash, and she 

accompanied him when he tried to solicit new business accounts 

for HRH. Mrs. Rash was not required to sign a covenant not to 

compete. 

 In November 1992, Mr. Rash initiated negotiations with HRH 

to purchase its group benefits business. According to Mr. Rash, 

Mrs. Rash was working "behind the scenes" during the negotiations 

to purchase the business from HRH. During these negotiations, 

the Rashes decided that if they were unable to acquire HRH's 

group benefits division, Mrs. Rash would form her own competitive 

insurance company and solicit HRH's accounts. Mr. Rash forwarded 

a letter to his attorney stating, "I definitely believe that 

either Susan or I would be successful in acquiring several of the 

accounts which they don't want to sell. We could possibly keep 

them all!" 

 Mr. Rash was unsuccessful in his attempt to purchase HRH's 

group benefits division. Subsequently, the Rashes resigned from 

their employment with HRH effective March 31, 1994. Later that 

day, the Rashes went to a store where Mrs. Rash used Mr. Rash's 

credit card to purchase a facsimile machine. Mr. Rash knew that 

Mrs. Rash was purchasing this facsimile machine for use in her 
new business, Rash & Associates. On another occasion, Mrs. Rash 

used her husband's credit card to purchase office equipment and a 

printer for Rash & Associates. Ultimately, Rash & Associates 

reimbursed Mr. Rash for these expenses. 

 During its first month of operation, Rash & Associates, 

which competed for HRH's insurance benefits accounts, conducted 

business in the Rashes' jointly-owned residence. Mrs. Rash used 

her husband's leased automobile to conduct business on behalf of 

Rash & Associates. 

 Mrs. Rash encountered problems when she tried to acquire 

operating capital for her new corporation. The initial business 

purchases and operating expenses for her company were provided by 

Mr. Rash. Mr. Rash deposited a check payable to him in the 

amount of $8,000 in a joint checking account that he owned with 

Mrs. Rash. Mr. Rash knew that Mrs. Rash intended to use some of 

these funds to pay for Rash & Associates' operating expenses. 

 Mrs. Rash informed Mr. Rash that she was trying to borrow 

money for Rash & Associates and that she had become frustrated 

with the process of borrowing money. The Rashes discussed with 

their attorney the possibility of encumbering their jointly-owned 

home as security to obtain financing for Rash & Associates. Mrs. 

Rash asked her husband if he would be willing to join in such a 

transaction. Mr. Rash refused to do so. 

 During a conversation with their attorney, the Rashes 

discussed the use of their jointly-owned mutual funds as 

collateral to obtain the necessary financing for Rash & 

Associates. Subsequently, Mr. Rash assigned his interest in the 

mutual funds to his wife, who used them as collateral to obtain a 
loan for Rash & Associates. Mr. Rash testified that he made the 

assignment because he did not want his name to appear on any 

documents relating to Rash & Associates. 

 Rash & Associates eventually acquired many group benefits 

insurance accounts that had been serviced by HRH. Mrs. Rash 

testified that in 1994, Rash & Associates received $136,011 in 

commissions, and $135,000 of those commissions were from former 

HRH accounts. 

 IV. 

 Mr. Rash asserts that the chancellor erred in holding that 

he violated his covenant not to compete and that he engaged in a 

competing business by allowing his wife to use jointly-held 

marital assets to fund Rash & Associates. Additionally, Mr. Rash 

asserts that he did not "engage" in his wife's business. HRH 

argues, and we agree, that there is substantial evidence to 

support the chancellor's finding that Mr. Rash breached his 

employment agreement. 

 The covenant not to compete states in relevant part: 

 [After termination, Mr. Rash] shall not directly or 

indirectly as an owner, stockholder, director, 

employee, partner, agent, broker, consultant or other 

participant, for a period of three (3) years from the 

date of such termination: 

. . . . 

 (e) engage in any manner in any business competing 

directly or indirectly with [HRH]. 

(Emphasis added). 

 As we have often stated, "[t]he parties' contract becomes 

the law of the case unless it is repugnant to some rule of law or 

public policy." Winn v. Aleda Const. Co., 227 Va. 304, 307, 315, 

315 S.E.2d 193, 194 (1984). Accord D.C. McClain, Inc. v. 
Arlington County, 249 Va. 131, 135, 452 S.E.2d 659, 662 (1995). 

Additionally, we "must give effect to the intention of the 

parties as expressed in the language of their contract, and the 

rights of the parties must be determined accordingly." Foti v. 

Cook, 220 Va. 800, 805, 263 S.E.2d 430, 433 (1980). 

 The record is replete with evidence that Mr. Rash acted as a 

participant who, at the very least, indirectly engaged in a 

business that competed against HRH. For example, as we mentioned 

above, Mr. Rash relinquished his interest in a jointly-owned 

mutual fund account so that Mrs. Rash could use those funds as 

collateral to secure a loan that was used for operating capital 

for Rash & Associates. And, as the chancellor found, Rash and 

Associates would not have been able to conduct business without 

this loan. 

 V. 

 The Rashes challenge that portion of the chancellor's decree 

awarding damages against them. Mrs. Rash asserts that she did 

not tortiously interfere with Mr. Rash's contract with HRH or 

with HRH's business expectancies. Further, she contends that the 

chancellor erred by awarding contract damages on the tortious 

interference claim and that the damages were punitive and without 

relationship to the actual harm suffered by HRH. Mr. Rash argues 

that the chancellor erred in imposing liquidated damages against 

him because his contract of employment purportedly does not 

provide for such damages. He also claims that the liquidated 

damage provision in his contract is unenforceable because it 

bears no relationship to the actual losses sustained by HRH. 

 As HRH observes, we cannot consider these arguments advanced 
by the Rashes because there is an independent basis to support 

the chancellor's ruling on these issues and that basis has not 

been challenged on appeal. In his final decree, the chancellor 

found that the Rashes had engaged in a common law conspiracy 

against HRH. The chancellor made a unitary award of damages, and 

an unspecified portion of those damages are compensation for the 

Rashes' common law conspiracy against HRH. The Rashes do not 

assign error to the chancellor's finding that they had engaged in 

a common law conspiracy; nor do they assign error to that portion 

of the chancellor's decree which awards damages to HRH because of 

the Rashes' common law conspiracy. 

 Therefore, those portions of the chancellor's decree holding 

that the Rashes had engaged in a common law conspiracy and that 

HRH is entitled to recover damages resulting from that conspiracy 

have become final and are not before this Court on appeal. Rule 

5:17(c); see United Leasing Corp. v. Thrift Ins. Corp., 247 Va. 

299, 308, 440 S.E.2d 902, 907 (1994); Crist v. Metropolitan 

Mortgage Fund, 231 Va. 190, 193, 343 S.E.2d 308, 310 (1986); 

Stamie E. Lyttle Co. v. County of Hanover, 231 Va. 21, 27, 341 

S.E.2d 174, 178 (1986); Haynes v. Bekins Van & Storage Co., 211 

Va. 231, 233, 176 S.E.2d 342, 344 (1970). 

 VI. 

 The Rashes assert that the trial court erred by imposing a 

constructive trust in favor of HRH. We disagree. 

 In Leonard v. Counts, 221 Va. 582, 588-89, 272 S.E.2d 190, 

195 (1980), we stated: 

 Constructive trusts are those which the law 

creates, independently of the intention of the parties, 

to prevent fraud or injustice. Porter v. Shaffer, 147 

Va. 921, 928, 133 S.E. 614, 616 (1926). While there is 

a distinction between resulting and constructive 
trusts, albeit often difficult to determine, the same 

remedial principles apply to both. Id. at 928-29, 133 

S.E. at 616. Constructive trusts have also been 

defined more comprehensively as follows: 

 "Constructive trusts arise, independently of 

the intention of the parties, by construction 

of law; being fastened upon the conscience of 

him who has the legal estate, in order to 

prevent what otherwise would be a fraud. They occur not only where property has been 

acquired by fraud or improper means, but also 

where it has been fairly and properly 

acquired, but it is contrary to the 

principles of equity that it should be 

retained, at least for the acquirer's own 

benefit." 

1 Minor on Real Property § 462 at 616 (2d ed. Ribble 

1928). 

Accord Overby v. White, 245 Va. 446, 449-50, 429 S.E.2d 17, 19 

(1993); Greenspan v. Osheroff, 232 Va. 388, 400, 351 S.E.2d 28, 

36-37 (1986). 

 Here, the chancellor found that the Rashes engaged in a 

common law conspiracy by diverting HRH's contracts to Mrs. Rash's 

corporation. Certainly, such conduct constitutes an improper 

means which, under the facts and circumstances of this case, 

justifies the imposition of the constructive trust. 

 VII. 

 Because we find no error in the decree appealed from, it 

will be affirmed. 

Affirmed.