Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Carrico,1 S.J. 

DONALD WILLIAMS 

 OPINION BY 

v. Record No. 020392 JUSTICE LAWRENCE L. KOONTZ, JR. 

February 28, 2003 

DOMINION TECHNOLOGY PARTNERS, L.L.C. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Cleo E. Powell, Judge 

This appeal arises from a judgment in favor of an employer 

against a former at-will employee on a motion for judgment 

seeking damages for an alleged breach of a fiduciary duty, 

tortious interference with a business relationship, and business 

conspiracy in violation of Code §§ 18.2-499 and 18.2-500. 

BACKGROUND 

Under well-settled principles of appellate procedure, we 

“consider the facts, some of which are disputed, in the light 

most favorable to the plaintiff, who is here armed with a jury 

verdict confirmed by the trial judge.” Norfolk Southern Railway 

Co. v. Trimiew, 253 Va. 22, 25, 480 S.E.2d 104, 107 (1997). 

Dominion Technology Partners, L.L.C. (Dominion), based in 

Chesterfield County, is an employment firm specializing in 

recruiting qualified computer consultants and placing them, 

either directly or through third-party brokers, on a temporary 

 

1

 Chief Justice Carrico presided and participated in the 

hearing and decision of this case prior to the effective date of 

his retirement on January 31, 2003. 
basis with various companies. Sometime in late 1998 or early 

1999, Dominion learned that Stihl, Inc. (Stihl), a power tool 

manufacturing firm, was seeking a computer consultant to oversee 

the installation of a new software package on computer systems 

at Stihl’s facilities in Virginia Beach. 

Dominion recruited Donald Williams as a possible candidate 

to fill the position at Stihl. At that time, Dominion prepared 

two employment offers and presented them to Williams. One offer 

provided that Williams would be a salaried employee of Dominion 

and receive compensation of $100,000 per year and various fringe 

benefits, regardless of whether Dominion was actually able to 

place Williams in a temporary position during the year. This 

offer further provided that Williams would be required to “sign 

the standard confidentiality agreement” at a later date. 

Alternately, Dominion offered to employ Williams as an at-will 

employee, paying Williams $80 per hour. As an at-will employee, 

Williams would receive no fringe benefits and would receive 

compensation only for work actually performed for a Dominion 

client. Williams elected to work as an at-will employee. 

Williams was referred to Stihl for a placement interview. 

Stihl found that Williams was qualified to provide the computer 

consulting services that it required. On January 22, 1999, 

 

2
Stihl entered into a contract with ACSYS Information Technology, 

Inc. (ACSYS), an employment brokerage company with its principal 

offices in the State of Georgia, to employ Williams for an 

initial period of three months. The contract provided that if 

Stihl chose to directly employ Williams at a later date, ACSYS 

would receive a “conversion fee.” The contract made no 

reference to Williams’ employment by Dominion. 

On January 28, 1999, ACSYS entered into a contract with 

Dominion for Williams’ services.2 The contract provided that 

ACSYS would “act as a brokering agent for [Dominion] to provide 

Information Systems Services . . . to clients of ACSYS.” The 

contract was terminable by either party upon thirty days written 

notice, and included a provision requiring Dominion not to 

solicit business from any client of ACSYS during the term of the 

contract or for one year thereafter. The contract did not 

include any terms prohibiting ACSYS from recruiting or directly 

employing current or former employees of Dominion. 

Subsequently, Williams performed computer consulting 

services for Stihl under a work order from ACSYS to Dominion 

beginning in January 1999. Shortly after he began work at 

 

2

 The dates of the contracts seem to be inconsistent. 

However, the parties do not dispute that these dates are not 

significant because from the beginning, “ACSYS had the position 

at STIHL. [It] did not have a person [to fill the position].” 

3
Stihl, ACSYS required Williams to sign a “project assignment” 

letter that included provisions, similar to those in the 

contract between ACSYS and Dominion, that Williams could not 

directly solicit Stihl or any other ACSYS client for additional 

work during the term of his assignment or for one year 

afterwards. 

According to Walt Yancey, information systems manager for 

Stihl’s Virginia Beach facility, Williams was responsible for 

the installation of a new software package related to Stihl’s 

computer word processing, production and materials planning, and 

customer shipment functions. The installation was to be 

completed by April 1999 at the end of Williams’ initial threemonth assignment at Stihl. The installation was completed on 

time, and Stihl decided to retain Williams in “a support and 

maintenance role” for an indeterminate period. Williams’ 

assignment at Stihl was extended by agreement with ACSYS as 

reflected in a series of work orders from ACSYS to Dominion. 

The final work order, accepted by Dominion on January 14, 2000, 

provided that the duration of the assignment would be on “a 

monthly basis as dictated by client.” 

Under its contract with Stihl, ACSYS received $165 for each 

hour of work performed by Williams. Dominion billed ACSYS $115 

for each hour of work performed by Williams, and, in turn, paid 

4
Williams $80 per hour.3 At some point during his work at Stihl, 

a copy of a work order from ACSYS to Dominion was mistakenly 

sent to Williams. As a result, Williams learned that Dominion 

received $115 for each hour that he worked at Stihl. 

ACSYS learned that Stihl was considering a further software 

upgrade to its computer systems. On February 17, 2000, Ryan 

Lenox, the “asset retention manager” for ACSYS,4 contacted 

Williams in an effort to determine whether Stihl had decided to 

go ahead with the software upgrade. Williams told Lenox that, 

although no firm decision had been made, Yancey had indicated 

that Stihl would probably delay making the upgrade until 

sometime in June 2000 when a new version of the software was 

expected to be released. Williams indicated to Lenox that “this 

is just an idea floating around STIHL.” 

During their conversation, Williams told Lenox that there 

had been a change in the ownership and management of Dominion 

and that, because of personality conflicts with the new 

management, Williams wanted to terminate his employment with 

 

3

 The work orders from ACSYS to Dominion also provided for 

an expense per diem, and Dominion billed ACSYS for Williams’ 

travel, lodging, and meals. 

4

 Lenox’s duties as asset retention manager required him to 

contact clients and the employees placed by ACSYS to determine 

the status of their projects and to learn of any possible 

extensions or new business opportunities. 

5
Dominion. Williams indicated that he would prefer to continue 

working at Stihl under a direct agreement with ACSYS. However, 

he also told Lenox that he would seek other employment if that 

agreement could not be reached. 

Lenox was concerned initially that directly employing 

Williams might violate ACSYS’s contract with Dominion and 

advised Williams that he would “look into the matter.” 

Apparently after determining that the contract with Dominion did 

not bar ACSYS from recruiting Williams, Lenox called Williams 

later that same day. He then inquired whether Williams was free 

to leave Dominion to work directly for ACSYS and, if so, what 

hourly rate of compensation Williams would want from ACSYS. 

Williams told Lenox about having learned that Dominion was paid 

$115 per hour for Williams’ work at Stihl and stated that he 

would accept $100 per hour from ACSYS. Williams also told Lenox 

that he was “99.9% certain that he did not sign anything with 

Dominion” which would prohibit him from leaving his employment 

with Dominion to work directly for ACSYS. 

On February 21, 2000, Williams and Lenox had several 

telephone conversations concerning Williams’ desire to terminate 

his employment with Dominion, and Lenox subsequently was 

contacted by Dominion the following day. Lenox recorded the 

substance of these conversations in a memorandum dated February 

22, 2000: 

6
Talked with Donald [Williams] yesterday several times. 

He has signed no paperwork with Dominion Technology. 

He wants to move ahead & come on board with us as a W2 

at $100@hr pay rate. Discussed with [another ACSYS 

employee] & came up with following plan: Donald will 

contact Dominion and ask how much notice they have to 

give us—two weeks or longer (our contract with 

Dominion has a 30 day notice). Donald plans not to 

tell them that he [is] staying at Stihl via us. Got a 

call today from [Joseph] Delfino @ Dominion. He said 

he was calling to let me know that Scott Webster [was] 

no longer at Dominion . . . “we got rid of him he did 

not leave us.” He then asked whether we [were] still 

active in SAP marketplace as he was going to be in 

Atlanta next month and would like to come by and see 

us (This was his story since he did not know where 

ACSYS IT was located until he asked me – he thought we 

were in Richmond, VA). He then asked how much longer 

Donald was going to be at Stihl. I told him it was a 

month to month setup based on Stihl. He wanted to 

know how often I talked with Stihl – every other 

month. How often I talked with Donald – about once a 

month. I called Donald after hanging up with Joe. 

Donald talked with [James] Delfino (Joe’s son who 

really runs Dominion Technology) last night and asked 

him how much notice he had to give them to give us as 

he was thinking about leaving. I am sure that this is 

what triggered call from Joe. Jim Delfino is going to 

get back with Donald later today. 

Williams told James Delfino that he wanted to terminate his 

employment with Dominion in order to pursue work opportunities 

closer to his home in the Richmond area. James Delfino advised 

Williams that he was required to give Dominion at least 30 days 

notice before terminating his employment. In a letter dated 

March 4, 2000, Williams formally tendered his resignation as an 

at-will employee of Dominion to be effective April 14, 2000. 

Williams stated in the letter that Dominion should advise ACSYS 

of his decision. 

7
James Delfino thereafter made inquiries to ACSYS concerning 

the possibility of “backfilling” Williams’ position at Stihl, 

that is, having Dominion supply another employee to take 

Williams’ place. Although ACSYS did not expressly tell Dominion 

so, James Delfino concluded from the response to his inquiries 

“that there was no opportunity for us to fill the position.” In 

May 2000, Dominion learned that Williams had continued working 

at Stihl as an ACSYS employee after April 14, 2000. Ultimately, 

Williams remained at Stihl as an ACSYS employee until June 1, 

2001. During that time, ACSYS paid Williams $115 per hour, 

rather than the $100 per hour that had been previously 

discussed, and Stihl continued to pay $165 per hour to ACSYS for 

Williams’ work at Stihl. 

On July 11, 2000, Dominion filed a motion for judgment 

against Williams alleging breach of contract, tortious 

interference with business relationships and prospective 

business relationships, breach of fiduciary duty, and business 

conspiracy in violation of Code §§ 18.2-499 and 18.2-500. 

Although the allegations of the motion for judgment relevant to 

the business conspiracy count named ACSYS as a party to the 

alleged conspiracy, ACSYS was not named as a defendant in the 

suit. For each theory of liability, Dominion sought damages of 

“$150,000, an amount Dominion estimates it would have earned 

under its ACSYS contract with Williams, or another employee 

8
performing the service Williams now provides to Stihl.” 

Dominion also sought punitive damages of $100,000 for breach of 

fiduciary duty and business conspiracy. Finally, Dominion 

sought an award of treble damages for the business conspiracy 

pursuant to Code § 18.2-500, and requested that it be awarded 

attorneys’ fees. 

Williams filed a demurrer to the claim for breach of 

contract and grounds of defense asserting general denials 

regarding all counts of the motion for judgment. In a letter 

opinion dated September 13, 2000, the trial court opined that 

there were insufficient allegations of a contract between 

Williams and Dominion in the motion for judgment and that the 

demurrer to the breach of contract claim would be sustained. 

Although the trial court never entered an order memorializing 

this ruling, the parties thereafter agreed that Williams was an 

employee-at-will and that he was not bound by any express 

confidentiality or non-compete agreement with Dominion. 

A jury trial was held on August 22, 2001, at which evidence 

in accord with the above-recited facts was received. At the 

conclusion of Dominion’s case-in-chief and again at the 

conclusion of the presentation of all evidence, Williams moved 

to strike Dominion’s evidence on the ground that it had not 

proved the existence of a fiduciary duty owed by him as an atwill employee to Dominion or that his actions had breached any 

9
duty. Williams further asserted that he could not be guilty of 

a business conspiracy with ACSYS because he was effectively an 

agent of ACSYS, and an agent cannot conspire with a principal. 

The trial court denied the first motion to strike, but took the 

remaining motion to strike under advisement and submitted the 

case to the jury. The jury returned its verdict in favor of 

Dominion, awarding it $27,000 compensatory damages and $20,000 

punitive damages for breach of fiduciary duty, $27,000 damages 

for tortious interference with business relationships, and 

$27,000 damages for participation in a business conspiracy in 

violation of Code §§ 18.2-499 and 18.2-500. 

Williams filed a motion to set aside the jury’s verdict. 

In a letter opinion dated October 26, 2001, the trial court 

addressed the argument made by Williams in moving to strike the 

business conspiracy claim. The trial court concluded that 

whether Williams was an agent of ACSYS during his employment by 

Dominion was a factual matter and that the jury had resolved the 

issue against Williams. The trial court further opined that 

Williams’ breach of fiduciary duty constituted sufficient “lack 

of legal justification” to support finding a business 

conspiracy. 

In a final order dated November 14, 2001, the trial court 

entered judgment on the jury’s verdict, awarding treble damages 

for the business conspiracy under Code § 18.2-500, and 

10
attorneys’ fees and costs totaling $22,801.05. In an order 

dated April 23, 2002, we awarded Williams this appeal. 

DISCUSSION 

Although the judgment awarded to Dominion against Williams 

in the trial court was founded upon three different theories of 

liability: breach of a fiduciary duty, interference with 

business relationships, and statutory business conspiracy, the 

essential facts asserted to support each theory are intricately 

interrelated in this particular case. The significance of that 

interrelationship will become apparent hereafter as we consider 

each of these theories of liability. 

We have long recognized that under the common law an 

employee, including an employee-at-will, owes a fiduciary duty 

of loyalty to his employer during his employment. See, e.g., 

Horne v. Holley, 167 Va. 234, 241, 188 S.E. 169, 172 (1936). 

Subsumed within this general duty of loyalty is the more 

specific duty that the employee not compete with his employer 

during his employment. Hilb, Rogal & Hamilton Co. of Richmond 

v. DePew, 247 Va. 240, 249, 440 S.E.2d 918, 923 (1994). 

Nonetheless, in the absence of a contract restriction regarding 

this duty of loyalty, an employee has the right to make 

arrangements during his employment to compete with his employer 

after resigning his post. The employee’s right in such 

circumstances is not absolute. Rather, “[t]his right, based on 

11
a policy of free competition, must be balanced with the 

importance of the integrity and fairness attaching to the 

relationship between employer and employee.” Feddeman & Co. v. 

Langan Assoc., 260 Va. 35, 42, 530 S.E.2d 668, 672 (2000). 

Thus, “[u]nder certain circumstances, the exercise of the right 

may constitute a breach of fiduciary duty. . . . Whether 

specific conduct taken prior to resignation breaches a fiduciary 

duty requires a case by case analysis.” Id.

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

(1984), we recognized the existence of the tort of interference 

with a business relationship. We summarized the elements of a 

cause of action for this tort 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. 

Code § 18.2-500 provides civil damages for violation of 

Code § 18.2-499, which, in pertinent part, imposes such 

liability against “[a]ny two or more persons who combine, 

associate, agree, mutually undertake or concert together for the 

purpose of (i) willfully and maliciously injuring another in his 

. . . business . . . by any means whatever.” In order to 

12
sustain a claim for this statutory business conspiracy, the 

plaintiff must prove by clear and convincing evidence that the 

defendants acted with legal malice, that is, proof that the 

defendants acted intentionally, purposefully, and without lawful 

justification, and that such actions injured the plaintiff’s 

business. See Feddeman & Co., 260 Va. at 44, 530 S.E.2d at 673-

74. 

Dominion concedes that because he was an at-will employee, 

Williams could have terminated his employment with Dominion at 

any time and without any requirement, in terms of a fiduciary 

duty, to show good cause for doing so. Moreover, Dominion also 

concedes that had Williams terminated his employment and then 

immediately offered his services to ACSYS, there would be no 

basis for asserting that this constituted a breach of a 

fiduciary duty to his former employer. Thus, the essence of 

Dominion’s assertions against Williams for damages under each 

theory of liability, whether denominated as a “breach of a 

fiduciary duty,” “intentional misconduct,” or a conspiratorial 

act of “legal malice,” is that Williams, after having learned 

that his services as a computer consultant were likely to be 

needed at Stihl for an extended period of time, and while still 

an employee of Dominion, arranged with ACSYS to become its 

employee effective upon his resignation from Dominion. 

13
The dispositive question to be resolved regarding all three 

theories of liability is whether this conduct, which was 

undoubtedly proved by the evidence, was sufficient to constitute 

a breach of Williams’ fiduciary duty of loyalty to Dominion. 

Whether such a duty exists is a question of law to be determined 

by the trial court. If the evidence is sufficient to establish 

a duty as a matter of law, only then will it become a matter for 

the jury to determine whether the duty has been breached. 

In applying a case by case analysis to determine whether 

specific conduct taken by an employee breaches a fiduciary duty 

of loyalty, the courts must be mindful that the fact that 

particular conduct of an employee caused harm to his employer 

does not establish that the conduct breached any duty to the 

employer. This is so because the law will not provide relief to 

every “disgruntled player in the rough-and-tumble world 

comprising the competitive marketplace,” especially where, 

through more prudent business practices, the harm complained of 

could easily have been avoided. ITT Hartford Group, Inc. v. 

Virginia Financial Assocs., Inc., 258 Va. 193, 204, 520 S.E.2d 

355, 361 (1999). 

We have recognized that certain conduct by an employee 

during the term of his employment will clearly constitute a 

breach of the duty of loyalty he owes to his employer. 

Principally, an employee must not have “misappropriated trade 

14
secrets, misused confidential information, [or] solicited an 

employer’s clients or other employees prior to termination of 

employment.” Feddeman & Co., 260 Va. at 42, 530 S.E.2d at 672. 

While this list is by no means exhaustive, it is indicative of 

the types of conduct by an employee that the common law will not 

condone in an employment relationship. 

Dominion does not contend that the information that Stihl 

was considering a further upgrade to its software was a “trade 

secret” or “confidential information” that was exclusive or 

proprietary to Dominion. To the contrary, James Delfino 

testified that Dominion subsequently obtained the same 

information from an independent source. In his testimony, 

Delfino agreed with the characterization of the information as 

“important,” asserting that it would have led Dominion to make 

inquiries as to whether “we could help them with that.”5 In 

effect, Dominion considered the information a business 

opportunity or “lead” not unlike the information that caused 

them to seek out Williams as a potential employee in the first 

instance. 

 

5

 Delfino further maintained that because Dominion had prior 

contacts with Stihl, it could have directly solicited Stihl 

without going through ACSYS. Although the issue is not before 

us, we note that under the terms of its contract with ACSYS, the 

prohibition on Dominion against soliciting additional work from 

ACSYS’s clients contains no express exceptions. 

15
In this context, Williams simply knew that there was a 

possibility, perhaps even a probability, that within four to six 

months Stihl would make a business decision that would require 

it to continue his services as a computer consultant or to 

acquire the services of someone equally qualified. Williams had 

the right to make the necessary arrangements to resign from his 

employment with Dominion in such a way as to take advantage of a 

higher level of compensation if his services at Stihl were 

needed beyond the month-to-month arrangement then in place, so 

long as these arrangements were not disloyal or unfair to 

Dominion. 

Williams tendered his resignation to Dominion in such a 

manner as to permit Dominion to comply with its contractual 

obligation to ACSYS. Williams and ACSYS both took care to 

assure that there was no contractual bar to their contemplated 

actions. As Williams and ACSYS discovered, Dominion had not 

sought a non-compete agreement from Williams or ACSYS, which 

would have prohibited their subsequent contractual arrangement. 

In such circumstances, it cannot be said that Williams’ conduct 

to safeguard his own interests was either disloyal or unfair to 

Dominion. Rather, we are of opinion that Dominion’s contracts 

provided it with nothing more than “a subjective belief or hope 

that the business relationship[s] would continue and merely a 

possibility that future economic benefit would accrue to it.” 

16
Commercial Business Systems, Inc. v. Halifax Corp., 253 Va. 292, 

303, 484 S.E.2d 892, 898 (1997). 

Moreover, Williams’ conduct, certainly taken out of selfinterest, did not rob his employer of any objective or tangible 

business opportunity or expectancy. To the contrary, by 

providing reasonable notice of his intent to resign his post and 

permitting Dominion to fulfil its obligation to ACSYS, Williams 

allowed Dominion to receive all the benefits for which it had 

bargained. Dominion’s disappointment that its hopes did not 

bear the expected additional benefit it might have obtained 

under a different contractual agreement with ACSYS does not 

translate into a breach of any fiduciary duty Williams owed to 

Dominion. 

CONCLUSION 

For these reasons, we hold that the trial court erred in 

ruling as a matter of law that Dominion’s evidence was 

sufficient to establish that Williams had a fiduciary duty to 

Dominion under the circumstances of this case and permitting the 

jury to determine whether Williams breached such a duty. 

Because the same conduct was alleged to constitute the proof of 

the “intentional misconduct” and “legal malice” elements of the 

two other theories of liability presented by Dominion, there was 

no basis for the jury finding for Dominion on those counts as 

17
well. Accordingly, we will reverse the judgment in favor of 

Dominion, and enter final judgment for Williams. 

Reversed and final judgment. 

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