UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1156

EDWINA C. ROGERS, 

 Plaintiff - Appellant, 

v. 

JON DEANE, CPA; GAFFEY DEANE TALLEY, PLLC, a successor in 

part to Murphy Deane & Company, PLC, 

 Defendants - Appellees. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:13-cv-00098-GBL-TRJ) 

Submitted: October 27, 2014 Decided: November 6, 2014

Before SHEDD, KEENAN, and WYNN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Steven L. Gremminger, Steven M. Oster, GREMMINGER LAW FIRM, 

Washington, D.C., for Appellant. Dennis J. Quinn, Kristine M. 

Ellison, CARR MALONEY PC, Washington, D.C., for Appellees. 

Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

Edwina C. Rogers appeals from the district court’s 

orders dismissing her amended complaint and granting summary 

judgment to Defendants on her second amended complaint alleging 

claims for breach of contract, breach of the implied covenant of 

good faith and fair dealing, and statutory business conspiracy. 

Rogers argues on appeal that the district court erred in 

granting summary judgment to Defendants on her claims for breach 

of contract and statutory business conspiracy under Virginia 

law. Rogers also argues that the district court erred in 

granting summary judgment to Defendants without granting her 

request for the opportunity to conduct discovery. We affirm. 

We review de novo the district court’s award of 

summary judgment and view the facts in the light most favorable 

to the non-moving party. Woollard v. Gallagher, 712 F.3d 865, 

873 (4th Cir.), cert. denied, 134 S. Ct. 422 (2013). “Summary 

judgment is appropriate only if the record shows ‘that there is 

no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. 

Civ. P. 56(a)). 

The relevant inquiry on summary judgment is “whether 

the evidence presents a sufficient disagreement to require 

submission to a jury or whether it is so one-sided that one 

party must prevail as a matter of law.” Anderson v. Liberty 
3

Lobby, Inc., 477 U.S. 242, 251-52 (1986). To withstand a 

summary judgment motion, the non-moving party must produce 

competent evidence sufficient to reveal the existence of a 

genuine issue of material fact for trial. See Thompson v. 

Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) 

(“Conclusory or speculative allegations do not suffice, nor does 

a mere scintilla of evidence in support of [the non-moving 

party’s] case.” (internal quotation marks omitted)). We will 

uphold the district court’s grant of summary judgment unless a 

reasonable jury could return a verdict for the non-moving party 

on the evidence presented. See EEOC v. Cent. Wholesalers, Inc., 

573 F.3d 167, 174-75 (4th Cir. 2009). Additionally, we may 

affirm on any ground presented in the record, even if it was not 

the basis on which the district court relied in granting summary 

judgment. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 

(4th Cir. 2002). 

We conclude after review of the record and the 

parties’ briefs that the district court did not reversibly err 

in granting summary judgment to Defendants on Rogers’ claims for 

breach of contract and statutory business conspiracy. Summary 

judgment was properly granted to Defendants on Rogers’ claim for 

breach of contract because it is clear from the evidence of 

record that the damages Rogers alleged were not caused by 

Defendants’ breach of a valid contract. See Filak v. George, 
4

594 S.E.2d 610, 614 (Va. 2004) (listing the elements of a breach 

of contract action); see also Snyder-Falkinham v. Stockburger, 

457 S.E.2d 36, 39 (Va. 1995) (listing the essential elements of 

a valid contract); Valjar, Inc. v. Maritime Terminals, Inc., 

265 S.E.2d 734, 737 (Va. 1980) (“A contract cannot exist if the 

parties never mutually assented to terms proposed by either as 

essential to an accord.”); Roanoke Hosp. Ass’n v. Doyle & 

Russell, Inc., 214 S.E.2d 155, 160 (Va. 1975) (distinguishing 

types of damages available in a contract action). 

Summary judgment also was properly granted to 

Defendants on Rogers’ claim under Va. Code Ann. §§ 18.2-499 

& -500 (LexisNexis 2014) for business conspiracy. The district 

court correctly determined that Defendants were entitled to 

judgment as a matter of law on this claim because the record 

lacks evidence that Defendants acted with legal malice toward 

Rogers’ business. See Multi-Channel TV Cable Co. v. 

Charlottesville Quality Cable Operating Co., 108 F.3d 522, 526 

(4th Cir. 1997) (noting the elements a plaintiff must establish 

by clear and convincing evidence to prevail on a claim of 

business conspiracy under Va. Code. Ann. §§ 18.2-499 & -500); 

Simmons v. Miller, 544 S.E.2d 666, 677 (Va. 2001) (stating that 

the element of legal malice requires proof that “the defendant 

acted intentionally, purposefully, and without lawful 

justification”). 
5

Next, we conclude the district court did not 

reversibly err in granting summary judgment to Defendants 

without granting Rogers’ request under Fed. R. Civ. P. 56(d) for 

the opportunity to conduct depositions. The rule requires “that 

summary judgment be refused where the nonmoving party has not 

had the opportunity to discover information that is essential to 

his opposition.” Nguyen v. CNA Corp., 44 F.3d 234, 242 

(4th Cir. 1995) (addressing predecessor to Rule 56(d)) (internal 

quotation marks omitted). Requests pursuant to the rule should 

be denied, however, “if the additional evidence sought for 

discovery would not have by itself created a genuine issue of 

material fact sufficient to defeat summary judgment.” Ingle v. 

Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (addressing 

predecessor to Rule 56(d)) (internal quotation marks omitted). 

The record in this case does not suggest any basis for 

concluding that the discovery Rogers sought would have created 

genuine issues of material fact precluding the granting of 

summary judgment on Rogers’ claims for breach of contract and 

statutory business conspiracy. 

Finally, Rogers filed during the pendency of this 

appeal a motion to supplement the record that requests that we 

take judicial notice of an order of the Virginia Board of 

Accountancy (“Board”) reprimanding Defendant Deane. Defendants 

oppose the motion on the ground that the Board’s order does not 
6

meet any of the requirements for judicial notice under Fed. R. 

Evid. 201 and request that we issue sanctions against Rogers’ 

counsel for their vexatious conduct in filing the motion. 

Rogers’ request for supplementation of the record 

fails as unnecessary. Although we have the authority under Fed. 

R. App. P. 10(e)(2) and 4th Cir. R. 10(d) to order that the 

record be supplemented with the Board’s order, there is no need 

to do so in this case because the order was not presented to or 

considered by the district court in the proceedings below and 

thus had no bearing on any of its rulings. Further, only 

indisputable facts are subject to judicial notice. Fed. R. 

Evid. 201(b); United States v. Zayyad, 741 F.3d 452, 463-64

(4th Cir. 2014). Although the filing by the Board of an order 

reprimanding Deane is indisputable, the factual findings 

contained therein are not. 

We therefore deny Rogers’ motion to supplement and 

request for judicial notice. We further deny Defendants’ 

request for sanctions. We affirm the district court’s judgment 

and dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED