Present: All the Justices 

COMMERCIAL BUSINESS SYSTEMS,INC. 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 960754 April 18, 1997 

HALIFAX CORPORATION, ET AL. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Theodore J. Markow, Judge Designate 

 This is the final chapter in litigation that has continued 

most of this decade. The moving party in the controversy is a 

disgruntled player in the rough-and-tumble world comprising the 

competitive marketplace. 

 The main players in this dispute are: Commercial Business 

Systems, Inc. (CBS), a business located in Chesterfield County 

that engaged in the repair, maintenance, and refurbishing of 

computer and data processing equipment; BellSouth Services, 

Incorporated, a business located in Birmingham, Alabama, that was 

created to perform selected staff and planning functions for 

Southern Bell and South Central Bell Telephone Companies and to 

consolidate services that can be managed most effectively through 

a central organization; Halifax Corporation, formerly Halifax 

Engineering, Inc., a Virginia corporation located in Alexandria 

that engaged in business similar to that of CBS; and Jerry H. 

Waldrop, an Alabama resident who had been employed by BellSouth 

in its Birmingham office as a contract officer responsible for 

negotiating contracts with vendors and selecting vendors to 

repair telephone and computer equipment for BellSouth. 

 In 1990, CBS filed a motion for judgment against BellSouth 

seeking recovery of lost profits and punitive damages for alleged 
- 2 - 

statutory conspiracy to injure CBS in its trade or business, in 

violation of Code § 18.2-499; common law conspiracy to injure 

CBS's business; and tort liability imputed to BellSouth under the 

doctrine of respondeat superior as a result of the activities of 

Waldrop. CBS claimed that Waldrop awarded a contract to CBS's 

competitor, Halifax, in exchange for commercial bribes. 

 Following discovery, the trial court granted BellSouth's 

motion for summary judgment and denied CBS's motion for partial 

summary judgment. CBS contended that, as a matter of law, 

Waldrop acted within the scope of his employment with BellSouth 

when he engaged in improper conduct. 

 On appeal, this Court reversed the trial court's judgment 

and remanded the case for further proceedings. Commercial 

Business Systems v. BellSouth Services, Inc., 249 Va. 39, 453 

S.E.2d 261 (1995). The record in that appeal was comprised of 

the pleadings, including memoranda and exhibits accompanying the 

summary judgment motions, "selected" responses to requests for 

admission, and "excerpts" from deposition testimony of a number 

of witnesses. 

 In that appeal (hereinafter, the BellSouth case), we held 

that a jury issue was presented on the question whether Waldrop 

acted within the scope of his employment when he committed the 

wrongful acts, and thus the trial court erred in granting summary 

judgment in favor of BellSouth on CBS's tort liability claim. 

Id. at 46, 453 S.E.2d at 266. We also held that the trial court 
- 3 - 

erred in granting summary judgment on CBS's claims of statutory 

conspiracy, common law conspiracy, and damages. 

 Upon remand, the BellSouth case was consolidated with 

another action that had been filed by CBS. Prior to the 

BellSouth appeal and after the trial court had ruled on the 

summary judgment motions in favor of BellSouth, CBS nonsuited 

other defendants in that case. Then, CBS refiled an action 

against some of the parties who had been defendants at the 

pleading stage of the BellSouth case. After the cases were 

joined upon remand, CBS filed a consolidated motion for judgment 

against defendants BellSouth, Halifax, Waldrop, and Clifford J. 

McGuire, who had been Halifax's southeastern regional manager. 

 The consolidated cases were tried to a jury during eight 

days in October 1995. The issues submitted to the jury were 

CBS's claims against all defendants of statutory conspiracy, 

common law conspiracy, and conspiracy to tortiously interfere 

with a prospective business relationship. Also submitted was 

CBS's claim against Halifax and McGuire of wrongful interference 

with a prospective business relationship. 

 The jury found in favor of all defendants on the statutory 

and common law conspiracy claims. The jury found in favor of 

BellSouth and Halifax, and against Waldrop and McGuire, on the 

claim of conspiracy to tortiously interfere with a prospective 

business relationship. The jury found against Halifax and 

McGuire on the claim of wrongful interference with a prospective 
- 4 - 

business relationship. The jury awarded CBS compensatory damages 

of $435,177 plus prejudgment interest. 

 Subsequently, the trial court entered judgment on the 

verdict in favor of BellSouth. Later, the court set aside the 

verdict against Halifax, McGuire, and Waldrop and entered 

judgment in their favor, from which CBS appeals. The judgment in 

favor of BellSouth has become final. Waldrop, who appeared pro

se throughout the proceedings, has not appeared on appeal. 

 The dispositive issue on appeal is whether CBS presented 

evidence sufficient to raise a jury question on its claim that 

Halifax and/or McGuire (hereinafter, Halifax) wrongfully 

interfered with CBS's prospective business relationship with 

BellSouth in connection with a contract that CBS had with 

BellSouth that expired July 28, 1987. 

 When the verdict of a jury has been set aside by the trial 

court, the verdict is not entitled to the same weight upon 

appellate review as one that has received the trial court's 

approval. But in considering the facts under these 

circumstances, the appellate court will accord the plaintiff 

benefit of all substantial conflicts in the evidence and all 

reasonable inferences that may be drawn from the evidence. Kelly

v. Virginia Elec. and Power Co., 238 Va. 32, 34, 381 S.E.2d 219, 

220 (1989). 

 Before we summarize the evidence, we shall dispose of a 

contention made by CBS that somehow Halifax is bound in the 
- 5 - 

present appeal by factual conclusions stated by this Court in the 

former appeal in the BellSouth case to which Halifax was not a 

party. At various times on brief and during oral argument of the 

appeal, CBS has packaged this contention in terms of "controlling 

precedent" or "stare decisis" or "persuasive," although not "the 

law of the case" or "res judicata." Whatever may be the actual 

basis of this contention, we reject it. 

 Of course, under the doctrine of stare decisis, the 

principles of law as applicable to the state of facts in the 

BellSouth case will be adhered to, and will apply in later cases 

where the facts are substantially the same, even though the 

parties are different. See Selected Risks Ins. Co. v. Dean, 233 

Va. 260, 265, 355 S.E.2d 579, 581 (1987). But adherence to that 

principle relating to conclusions of law does not mean that 

conclusions of fact based on a summary judgment record have any 

binding effect whatsoever, in the context of appellate review, 

upon factual findings arising from a jury trial where the parties 

in the two cases are different and where, unlike the summary 

judgment proceeding, the facts were fully developed. 

 Indeed, a reason underlying our Rule 3:18, providing that 

summary judgment "shall not be entered if any material fact is 

genuinely in dispute," is to assure that parties' rights are 

determined upon a full development of the facts, not just upon 

pleadings and "selected" "excerpts" from discovery materials. 

Thus, it would be illogical to hold, in this context, that 
- 6 - 

appellate conclusions of fact in a summary judgment appeal have 

any controlling effect upon facts later developed in the case 

during a jury trial. See Carper v. Norfolk & W. R. Co., 95 Va. 

43, 45, 27 S.E. 813, 813 (1897) (upon remand for trial de novo, 

new decision required upon second appellate review if facts 

change). 

 The material facts presented during the jury trial 

essentially are undisputed. CBS was founded by Gary Ewell Lacey 

as a sole proprietorship "around 1981" to repair, refurbish, and 

sell telecommunications equipment. Incorporated in 1984, CBS 

"would approach companies," including telephone companies, "and 

see if they needed communications equipment either purchased or 

refurbished or repaired." Lacey contacted BellSouth seeking to 

obtain a contract for the repair of Digital Equipment Corporation 

(DEC) "writer printers" known as "TP1000s," which were 

manufactured for and extensively used by telephone companies. 

 Lacey dealt with William B. Jordan, a BellSouth employee 

whose duties involved writing "contracts for the repair of 

movable telecommunications equipment." Jordan also was 

responsible for "contract administration," that is, his "job was 

to assure that the contract was being met by both the vendor and 

the company." 

 In 1985, CBS submitted a bid of $691,060 and was awarded 

Contract No. 85073 for "The Repair/Refurbishment and Conversion 

of TP1000 Teleprinters" for "the two year period July 29, 1985 
- 7 - 

thru July 28, 1987." The contract did not "grant [CBS] an 

exclusive privilege to repair all products of the type described" 

and provided that BellSouth "may contract with others for the 

repair of comparable products and services." The contract also 

provided for termination by either party upon 60 days notice 

"without any charge or liability whatsoever." 

 CBS commenced performing under the contract and "had an 

excellent working relationship" with Jordan, who solely 

administered the contract. In November 1986, because the 

"contract was coming up for renewal," Lacey contacted Jordan and 

advised him that CBS "would like to start the process to renew 

the contract with BellSouth." According to Lacey, when Jordan 

was asked "what he thought [CBS's] chances of renewal were," 

Jordan responded, "that's not going to be a problem . . . you 

guys are one of the best vendors that we have . . . . You're 

doing your work, performing like you're supposed to and you [are] 

also the incumbent." 

 In February 1987, Jordan changed job responsibilities and 

ceased being the administrator of the contract. Jordan's duties 

with reference to the contract were assumed by Waldrop. Waldrop 

also became BellSouth's contracting officer responsible for 

negotiating equipment repair contracts with vendors upon 

expiration of such contracts. 

 In early 1987, CBS unsuccessfully attempted by both 

telephone and letter to reach Waldrop to discuss renewal and 
- 8 - 

expansion of its contract. Finally, Waldrop responded by 

telephone. When Lacey "tried to talk to him about renewal," 

Waldrop "suggested" that CBS was "having very serious financial 

trouble" and that CBS was "having warranty problems with 

equipment being returned back not being repaired satisfactorily." 

CBS undertook an investigation of Waldrop's charges and concluded 

that Waldrop's information was "totally unfounded." On June 4, 

1987, CBS advised Waldrop by letter of this finding. 

 On June 15, 1987, Waldrop wrote Lacey expressing 

appreciation for CBS's "recent letter" and the "information 

regarding your current financial status and the recent problems 

your company has encountered." Waldrop wrote: "I hope you can 

continue to make your comeback." 

 "However," the letter continued, "as I discussed with you 

over the telephone, our plans are not to renew the contract with 

your company at this time. BellSouth Services strives to offer 

our clients the best in quality and service that the `market' has 

to bear. This can be achieved by opening that market to other 

qualified vendors and encouraging competition for the services we 

desire." BellSouth, through Waldrop, refused to allow CBS to bid 

"or even be part of the competition" for a new contract, and the 

expired contract was not renewed. 

 In the meantime, during 1985-86, McGuire, as Halifax's 

"southeastern regional manager," was "supposed to drum up 

business" for his employer. At that time, McGuire began "seeking 
- 9 - 

business with BellSouth through Jerry Waldrop." This effort was 

successful, and Halifax started "doing work" for BellSouth "that 

involved some printer repairs." Later, in "middle '86," Halifax 

"began doing some additional work for BellSouth," which included 

"TP1000 work." 

 In June 1987, Halifax submitted a written proposal to 

BellSouth "seeking to do the TP1000 work." Prior to that time, 

Halifax was receiving TP1000 printers from BellSouth for repair 

without any written contract. McGuire, called by CBS as an 

adverse witness, testified he had no knowledge of CBS's existence 

in June 1987. 

 In June, July, and August of 1987, Halifax began getting 

"more and more" TP1000s from BellSouth for repair. Subsequently, 

BellSouth awarded Halifax a written contract for "The 

Repair/Refurbishment of DEC Printers, Keyboards and Terminals" 

for the term "January 1, 1988 through December 31, 1989." 

 In July 1989, following negotiations between McGuire and 

Waldrop, Halifax's contract was amended by a written agreement, 

which extended the term of the initial agreement six months to 

June 30, 1990. This amendment allowed Halifax "to get a higher 

price" for the work it was performing. 

 During the period when Halifax was dealing with Waldrop, 

Halifax began obtaining various items and services directly from 

companies in which Waldrop had a personal interest. For example, 

an owner's manual, which Halifax had to purchase from the 
- 10 - 

equipment manufacturer, accompanied each repaired TP1000. 

Halifax began saving some of the cost of the manuals by 

purchasing them directly from a company named Entracom, which was 

owned by Waldrop. He had manuals privately copied in Birmingham, 

and Entracom sold the reproduced manuals to Halifax at a large 

markup over the copying cost. 

 In addition, Halifax had an agreement with Waldrop that 

Entracom would perform "all the shipping" of repaired items for 

Halifax and that Halifax would purchase all its "supplies" from 

Entracom. During the period October-December 1987, "boxes" and 

"pallets" containing items repaired by Halifax were being shipped 

by a company named MedSouth, Incorporated, in rented trucks. The 

trucks were driven by either Waldrop or one of his relatives. 

Waldrop's brother was executive vice-president and general 

manager of MedSouth. Later, the shipping was performed by 

Entracom using leased trucks driven by Waldrop family members. 

The family members were compensated for their services to 

MedSouth and Entracom. 

 Also, Halifax paid Entracom $6,000 per month in 1988 as rent 

for office and warehouse space in Birmingham. Entracom paid $620 

per month to lease the space. 

 In 1989, Waldrop was discharged because he had been involved 

in conflicts of interest while employed by BellSouth. In a 

response to a CBS request for admission, BellSouth admitted that 

the "windfall profit from Entracom's sale of supplies to Halifax 
- 11 - 

was a kickback or bribe" to Waldrop for contract amendments and 

"was intended to induce him to send more business to Halifax." 

The trial court instructed the jury that this admission was 

binding on BellSouth only and was not to be considered as 

evidence against Halifax or Waldrop. 

 The analysis must begin with the question whether CBS 

presented any credible evidence that would permit a jury to find, 

without speculating, that Halifax committed the tort of wrongful 

interference with prospective business or economic advantage. 

For without proof of the underlying tort, there can be no 

conspiracy to commit the tort. 

 In Glass v. Glass, 228 Va. 39, 51, 321 S.E.2d 69, 76-77 

(1984), this Court recognized such a tort. We summarized the 

elements of the cause of action as follows: "(1) the existence 

of a business relationship or expectancy, with a probability of 

future economic benefit to plaintiff; (2) defendant's knowledge 

of the relationship or expectancy; (3) a reasonable certainty 

that absent defendant's intentional misconduct, plaintiff would 

have continued in the relationship or realized the expectancy; 

and (4) damage to plaintiff." Id. at 51-52, 321 S.E.2d at 77. 

 The foregoing elements were embodied in Instruction No. 27 

in the present case, given without objection by any party. The 

trial court told the jury that CBS had the burden to prove by a 

preponderance of the evidence that: "(1) there was a business 

relationship or expectancy between CBS and BellSouth Services, 
- 12 - 

with a reasonable probability of future economic benefit to CBS; 

(2) Halifax and/or McGuire knew about this business expectancy or 

relationship; (3) in the absence of Halifax and/or McGuire's 

intentional misconduct, it is reasonably certain that CBS would 

have continued in the relationship or realized the expectancy; 

and (4) such misconduct proximately caused damage to CBS." 

 In a written opinion granting the motion to set the verdict 

aside, the trial court assumed without deciding that there was a 

business expectancy between CBS and BellSouth, that there was 

intentional misconduct, and that CBS sustained damages. The 

court ruled that there was evidence from which the jury could 

have found Halifax and McGuire knew of the existence of CBS and 

that CBS had a contract with BellSouth for the repair of TP1000 

printers. But the court also ruled there was no evidence Halifax 

"had any knowledge of any expectancy that the contract would 

continue, for how long, or that it was subject to renewal or that 

Halifax was in any way prevented from competing with CBS for that 

business because of the CBS expectancy." 

 Importantly, the trial court also concluded the evidence 

failed to establish the first element of the cause of action, 

namely, that CBS had a reasonable probability the contract would 

be renewed, or the third element, namely, that it was reasonably 

certain "CBS would have realized the expectancy but for the 

misconduct of Waldrop and Halifax/McGuire." Thus, we shall focus 

on those two elements. 
- 13 - 

 Initially, we shall comment on several obvious principles 

that apply to the tort of wrongful interference with a 

prospective business or economic advantage. First, proof of the 

existence of the first and third elements of the tort must meet 

an objective test; proof of subjective expectations will not 

suffice. In other words, mere proof of a plaintiff's belief and 

hope that a business relationship will continue is inadequate to 

sustain the cause of action. 

 Second, the proof must establish a "probability" of future 

economic benefit to a plaintiff. Proof of a "possibility" that 

such benefit will accrue is insufficient. 

 We have searched this voluminous record, which includes a 

2,998-page appendix, in an effort to find credible evidence upon 

which a jury could properly base a finding that, at the time the 

contract was about to expire, CBS had a reasonable probability 

the contract would be renewed or CBS would have realized any such 

expectancy but for the misconduct of Halifax. The record is 

utterly devoid of such evidence. 

 It is true that CBS was encouraged by Jordan's November 1986 

comments about the prospects for renewal. Subjectively, during 

the period when the contract was about to expire, CBS's 

principals thought CBS was performing well under the contract and 

they had a subjective expectation that it would be renewed. 

 However, CBS failed to present credible evidence that either 

Jordan, if he had continued to administer the contract, or 
- 14 - 

Waldrop, when he took over as contract administrator, would 

probably have renewed the contract. 

 During his deposition testimony presented as part of CBS's 

case, Jordan stated it would be "hard to say at this juncture" 

whether he would have continued to do business with CBS if he had 

remained contract administrator. This testimony was consistent 

with Jordan's live testimony when called later in the trial as 

BellSouth's witness. Jordan stated he never told Lacey that "CBS 

could expect to be renewed." 

 Jordan was replaced by Waldrop in February 1987. The 

evidence is uncontradicted that Waldrop was the BellSouth 

employee who would decide whether CBS would continue in a 

relationship with BellSouth after the July 1987 expiration of the 

TP1000 contract. The undisputed evidence showed that under no 

circumstances, and for reasons totally unrelated to any intent to 

profit on his own, would Waldrop have renewed the contract. 

 CBS was experiencing problems that made it a tarnished 

participant in the competition among many vendors for BellSouth's 

work. For example, while the contract was in effect, CBS's 

"costs got kind of out of hand" and it "had some cash flow 

problems," according to the testimony of Thomas Michael Clayton, 

CBS's president at the time of trial. CBS's outside accountants 

reported to it on February 27, 1987 that "the corporation 

incurred a net loss of $264,810 during the year ended October 31, 

1986 and, as of that date, the corporation's current liabilities 
- 15 - 

exceeded its current assets by $173,471 and its total liabilities 

exceeded its total assets by $106,918." According to the 

accountant, "These factors indicate that the corporation may be 

unable to continue in existence." CBS failed to report this 

information to BellSouth. Also, CBS failed to submit monthly 

reports regularly about its "accountability," as required by the 

contract. 

 In early 1987, CBS closed an office in Columbia, South 

Carolina, and consolidated its operations in the Richmond area in 

an effort to cut costs. This removed its presence and "depot 

location" from near the Florida-Alabama area; BellSouth did not 

want its equipment "setting up there in Virginia" for repair 

because it was "trying to get vendors that were close" to 

Birmingham. During this period, CBS was unable to make federal 

tax payments in a timely fashion. 

 BellSouth was aware of all these circumstances, which played 

a part in the decision not to renew. And, during this period 

BellSouth was doing business with another vendor, Halifax, a 

prerogative BellSouth could exercise under the terms of the 

nonexclusive CBS-BellSouth contract. 

 Finally, contrary to CBS's contention, there was no credible 

evidence of any BellSouth "standard practice" or "preference" for 

continuing to work with incumbent vendors. CBS's contention is 

based on a portion of the testimony of Christopher Jones, a 

Halifax executive called by CBS as an adverse witness. Jones was 
- 16 - 

asked by CBS's attorney whether Waldrop "once" told him "that 

once you get working with BellSouth if you do a good job you have 

a contract with us forever." Jones answered, "I recall seeing 

that." When asked whether Waldrop "said it to you," Jones 

responded, "I don't recall. I recall hearing it, I don't recall 

who he said it to . . . I recall hearing it, I don't know who 

said it." Testimony about a comment from an unidentified source 

regarding an unidentified time period is insufficient to 

establish a corporate policy of renewing incumbent vendors. 

 In sum, we hold CBS established merely a subjective belief 

or hope that the business relationship would continue and merely 

a possibility that future economic benefit would accrue to it. 

And, conflicts of interest existing in the BellSouth-Halifax 

relationship cannot be converted into a business expectancy for 

CBS. 

 Thus, it follows that the trial court did not err in setting 

aside the verdict in favor of CBS for its failure to prove the 

cause of action. This conclusion makes it unnecessary to address 

the remaining issues in the appeal. 

 Therefore, the judgment from which the appeal was awarded 

will be 

Affirmed.