                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-1608


HORST SCHWINN, Guardian Ad Litem of Doerte Hesse,

                Plaintiff - Appellant,

          and

MARCUS HESSE, Guardian Ad Litem of Josef Hesse,

                Plaintiff,

          v.

LONG & FOSTER REAL ESTATE, INCORPORATED,

                Defendant – Appellee,

          and

CHARLES STEPHEN EBBETS,

                Defendant.




                             No. 08-1663


MARCUS HESSE, Guardian Ad Litem of Josef Hesse,

                Plaintiff - Appellant,

          and

HORST SCHWINN, Guardian Ad Litem of Doerte Hesse,

                Plaintiff,
           v.

LONG & FOSTER REAL ESTATE, INCORPORATED,

                 Defendant – Appellee,

           and

CHARLES STEPHEN EBBETS,

                 Defendant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:07-cv-00603-LMB-TCB)


Argued:   September 23, 2009             Decided:   January 25, 2010


Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Irene M. KEELEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Steven M. Garver, GARVER LAW OFFICES, PC, Reston,
Virginia, for Appellants. Danielle D. Giroux, HARMAN, CLAYTOR,
CORRIGAN & WELLMAN, Richmond, Virginia, for Appellee. ON BRIEF:
Douglas K. Landau, ABRAMS LANDAU LTD, Herndon, Virginia; Roger
T. Creager, THE CREAGER LAW FIRM, PLLC, Richmond, Virginia, for
Appellant Horst Schwinn, Guardian Ad Litem of Doerte Hesse.
Stanley P. Wellman, HARMAN, CLAYTOR, CORRIGAN & WELLMAN,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                  2
PER CURIAM:

     The dispute before us grows out of a tragic accident. At

approximately 10:30 A.M. on July 23, 2005, while riding their

motorcycle in Fauquier County, Virginia, Josef Hesse and his

wife, Doerte (“the Hesses”), were struck by a Cadillac Deville

sedan     driven     by     a       realtor     named     Charles     Stephen      Ebbets

(“Ebbets”). The Hesses received catastrophic brain injuries as a

result of the accident and are incapacitated. Their guardians ad

litem sued Ebbets individually, and also sued Long & Foster Real

Estate,    Inc.    (“Long       &    Foster”)      as   Ebbets’s    employer     under   a

theory    of    respondeat           superior.      The   district     court     entered

judgment in favor of Long & Foster after concluding that Long &

Foster    was     not   vicariously        liable       for   the   Hesses’      injuries

because Ebbets was not acting as its employee at the time of the

accident. Following this, the Hesses proceeded to trial against

Ebbets and obtained a verdict for $36 million in damages.                            They

now appeal to us, arguing that the district court erred when it

entered summary judgment in Long & Foster’s favor.                      We affirm.



                                              I.

     Sometime       prior       to    2005,   Ebbets      entered     into   a   Broker-

Associate      Independent          Contractor      Agreement      (“Agreement”)    with




                                              3
Long       &   Foster. 1      As    part     of    this   Agreement,      the   parties

contemplated that Long & Foster would provide Ebbets with access

to its facilities and listings, and also would assign him a

supervising broker as required under Virginia law.                         The parties

further agreed that, in exchange for these benefits, Ebbets, a

very successful realtor, would use his best efforts to sell or

lease real estate listed by Long & Foster.                           Throughout their

relationship, each party was entitled to receive a percentage of

any    commissions          received    from       real   estate   sales    closed    by

Ebbets.



                                             II.

       The     question      before    us    is    whether,     under   Virginia     law,

Ebbets,        who    was    returning       from     a   property      inspection    to

Long & Foster’s offices in Warrenton, Virginia when the accident

occurred, was an employee of Long & Foster or an independent

contractor.          The Hesses contend that, to resolve this question,

we     must     consider      the     four     factors     of    (1)    selection     and

engagement, (2) payment of compensation, (3) power of dismissal,

and (4) power to control the work of the individual articulated

in McDonald v. Hampton Training Sch. for Nurses, 486 S.E.2d 299,

       1
       The independent contractor agreement is not dated. In his
deposition, Ebbets stated that he believed he entered into the
agreement in 2000, but he was uncertain of this date.



                                               4
301 (Va. 1997).            Of these, they assert the power to control is

determinative, and that the provisions of Virginia law requiring

brokers to supervise real estate salespersons impose a legal

duty on brokers to control the realtors they supervise.                           See Va.

Code Ann. § 54.1-2101 (2009); 18 Va. Admin. Code § 135-20-160(D)

(2009). They also argue that the limitations and requirements

imposed on Ebbets under the Agreement, and the circumstances of

his    relationship         with    Long   &    Foster,    could    allow         a     jury

reasonably to infer that Long & Foster had the power to control

the means and methods of his sales efforts and performance as a

realtor.

       Long     &    Foster   disputes     this,      arguing    that,    both        under

Virginia       law   and    the    terms   of   the   Agreement,    Ebbets        was    an

independent contractor.              It contends the licensing regulations

of the Virginia Real Estate Board that require all realtors to

be supervised by a licensed real estate broker cannot create a

de facto master-servant relationship. 2                 This is because § 54.1-

2101       defines   “real    estate   salesperson”       in    part,    as   a       person

“affiliated as an independent contractor with[] a real estate

broker . . . .”               According to Long & Foster, to hold that

       2
        Virginia regulations require supervising brokers to
“exercise reasonable and adequate supervision of the provision
of real estate brokerage services by associate brokers and
salespersons assigned to the branch office.” 18 Va. Admin. Code
§ 135-20-160(D).



                                            5
Virginia’s       Administrative          Code       imposes       a    duty   on    brokers     to

control        the        realtors    they    supervise           would       eviscerate       the

Virginia General Assembly’s statutory expectation that a broker

may supervise a realtor working as an independent contractor to

the broker.               Finally, Long & Foster points to terms in the

Agreement that expressly forbade it from controlling the means

and    manner        of    Ebbets’s    work     as   a    realtor,          terms   it    honored

throughout its relationship with Ebbets.

       After considering these arguments in the parties’ cross-

motions for summary judgment, the district court granted summary

judgment to Long & Foster.                      In a well-reasoned opinion that

thoroughly       analyzed          applicable       Virginia      law,       as    well   as   the

Agreement between Long & Foster and Ebbets, the district court

concluded that Ebbets was acting as an independent contractor at

the time of the accident.                It therefore granted summary judgment

on the basis that Long & Foster neither controlled nor had the

power     to    control           Ebbets’s    work       as   a       realtor.        Hesse     v.

Ebbets, 2007 WL 4562818 (E.D. Va. 2007).



                                              III.

       We review a district court’s entry of summary judgment de

novo, drawing all inferences in the light most favorable to the

non-moving party.                 Williams v. Griffin, 952 F.2d 820, 823 (4th

Cir.    1991).            After    careful    consideration            of    the    record,    the

                                                6
briefs and oral arguments, and the record before us, we affirm

on the basis of the district court’s well-reasoned opinion.



                                                         AFFIRMED




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