                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-1594



MARIAN HERDER,

                 Plaintiff - Appellee,

           v.


DOUGLAS SIMMS,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-01140-GBL)


Argued:   May 15, 2008                     Decided:   June 12, 2008


Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Terry L. WOOTEN, United States District Judge for the District of
South Carolina, sitting by designation.


Reversed by unpublished per curiam opinion.


ARGUED: Wyatt B. Durrette, Jr., DURRETTEBRADSHAW, PLC, Richmond,
Virginia, for Appellant. Kenneth A. Martin, MARTIN & ASSOCIATES,
PLLC, McLean, Virginia, for Appellee.    ON BRIEF: Christine A.
Williams, Halliday Moncure Merrick, DURRETTEBRADSHAW, PLC,
Richmond, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Douglas Simms (Simms), the defendant in a breach of contract

action under Virginia law, appeals from the district court’s entry

of judgment in favor of the plaintiff, Marian Herder (Herder),

following the district court’s grant of Herder’s motion for summary

judgment.      We reverse.



                                         I.

       The parties executed the contract at issue (the Contract), on

February 4, 2005, which provided for the sale of a thirty–seven

acre   tract    of   real    property    located   in   Spotsylvania   County,

Virginia (the Property).         Herder, a citizen of Pennsylvania, was

the seller under the Contract, and Simms, a citizen of Virginia,

was the purchaser.      The parties executed the Contract after an

auction of the Property conducted by Herder’s agent, Daniel Mastin,

III (Agent Mastin).           (J.A. 42).        The Contract set the total

purchase price at $1,000,000.00.

       Per the Contract, Simms paid Herder a ten percent deposit of

$100,000.00, to be held in escrow until closing. Agent Mastin held

the entire $100,000.00 deposit in escrow, and according to Herder’s

arrangement with Agent Mastin, Agent Mastin would retain $50,000.00

of such deposit as his auction commission upon closing.                   The

Contract also provided that, in the event Simms defaulted on the




                                        - 2 -
Contract, Simms “shall forfeit the deposit and the deposit shall be

equally divided between [Herder] and [Agent Mastin] . . . .”      Id.

      Of relevance to the issues on appeal, Paragraph 4 of the

Contract states, in pertinent part:

      BUYER shall have the right to have the title examined
      prior to closing and shall notify SELLER promptly of any
      defect rendering title to the property unmarketable. In
      the event such defect cannot be cured within a reasonable
      time, or SELLER elects not to cure the same, SELLER not
      being so required; then this contract may, at the option
      of BUYER, be cancelled before closing, and it is
      specifically agreed that the BUYER’S sole remedy shall be
      the return of the hereinabove deposit, without interest,
      and this contract and all rights and obligations of the
      Parties hereto, shall be terminated and of no further
      force and effect. In the event that the BUYER defaults
      on this contract and does not proceed to closing, then
      the BUYER shall forfeit the deposit and the deposit shall
      be equally divided between the SELLER and the AGENT
      . . . .

Id.

      The Contract required “closing” the transaction “within 90

days [of execution], unless extended to a later date by a mutual

consent of all parties.     TIME IS OF THE ESSENCE.”     Id.   Thus,

according to the terms of the Contract, the closing had to occur no

later than May 5, 2005. However, shortly after the auction, Herder

orally notified Agent Mastin that she wanted to delay the closing

until later in the year out of concern for her capital gains tax

liability.    Agent Mastin relayed Herder’s desire to delay the




                               - 3 -
closing date to Simms, who orally agreed to extend the closing date

past May 5, 2005.1

     At some point after May 5, 2005, Herder notified Agent Mastin

that she had changed her mind and now desired to close the

transaction sooner rather than later.      After Agent Mastin relayed

Herder’s latest desire to Simms, Simms began taking the necessary

steps to close.     On or about May 17, 2005, the parties agreed to

close the transaction during a closing conference scheduled for

June 6, 2005, at the Fredericksburg, Virginia law office of Simms’

attorney, H. Glenn Goodpasture (Attorney Goodpasture).

     Shortly before the June 6, 2005 closing conference, a title

search was performed.     The title paperwork contained information

about    certain   out-conveyances   off   a   forty-five   acre   tract.

Attorney Goodpasture assumed that the out-conveyances did not

impact the thirty-seven acre tract that Simms was purchasing and,

according to Attorney Goodpasture, the title paperwork contained

nothing to suggest otherwise.    When Herder and her attorney, David

Still (Attorney Still), arrived at Attorney Goodpasture’s office

for the closing conference on June 6, 2005, Attorney Goodpasture

showed them a plat of the Property as described in the Contract,

which plat had been created on behalf of Simms to confirm that it


     1
      According to Herder’s brief in the present appeal: “By the
terms of the contract, the Parties were allowed to mutually agree
to extend the Closing Date. Therefore, Herder and Simms acted in
accord with the contract when they verbally agreed to extend the
Closing Date . . . .” (Herder’s Br. at 7).

                                 - 4 -
accurately   depicted   the   property       to   be   conveyed   under   the

Contract.2

     Herder then advised Attorney Goodpasture that the plat was

incorrect, as she had previously conveyed two smaller parcels out

of the Property.   Neither Herder nor her attorney could accurately

identify the location of these out-conveyances on the plat.               At

that point, Attorney Goodpasture could not determine exactly what

property Herder was going to convey, what property Simms was going

to purchase, or on what property the bank would get a lien.3              The


     2
      Per the customary arrangement between Simms and Attorney
Goodpasture, Simms did not plan to physically attend the closing
conference on June 6, 2005.     Under this customary arrangement,
Simms executes his necessary paperwork and transfers the necessary
funds to Attorney Goodpasture prior to the closing conference.
     3
      With respect to when Attorney Goodpasture first learned of
the title defects created by the two out-conveyances, Attorney
Goodpasture testified during his deposition in this case, without
contradiction, as follows:

     The survey which reached me very late in the transaction,
     I don’t know if it got to me at all before the 6th, but
     [Simms’ lender] was requiring that the survey be recorded
     as a part of the transaction. . . . And in reviewing the
     survey with the seller and with the title search, the
     seller told me that the survey was not accurate, that
     there was property that she had conveyed off of that
     tract of land which was not -- which was included within
     the survey, that it wasn’t accurate. . . .

                                *   *    *

     At the settlement table the title company had not
     provided me with copies of the deeds of off-conveyance.
     I did not have them. That’s probably why I didn’t know
     what was being conveyed and what was being purchased.

(J.A. 178, 181).

                                 - 5 -
evidence in the summary judgment record is undisputed that Herder,

her attorney, and Attorney Goodpasture consequently agreed to try

to resolve the confusion created by these out-conveyances and then

close as soon as reasonably practical.            Notably, the summary

judgment   record   contains   the   deposition   testimony    of   Herder

herself, testifying that she left the closing conference on June 6,

2005, “with the understanding that things had to be fixed in order

for the deal to be completed[.]”         (J.A. 170).   Moreover, Herder

testified that although she could not explain exactly what such a

fix entailed, “[she] kn[e]w it had to be fixed.”       Id.    Herder left

the June 6, 2005 closing conference with the deed to the Property

still in her possession.

     During the next few days, the location and size of the two

out-conveyances were determined to be: (1) 0.723 acres conveyed to

Reginald S. Tyler, by deed recorded on January 19, 2005; and (2)

2.00 acres conveyed to Catherine M. Dunbar, by deed recorded on

February 11, 2005 (a week after the parties executed the Contract).

After several telephone conversations between Attorney Goodpasture

and Attorney Still, the two attorneys reached a proposed agreement

to resolve the title defect issues, which each attorney would

recommend to his respective client.         Attorney Goodpasture then

drafted a document memorializing the proposed agreement, which

document he forwarded to Attorney Still by letter dated June 9,

2005.



                                 - 6 -
     By letter dated June 23, 2005, addressed to Agent Mastin with

a copy to Attorney Goodpasture, Herder (through her attorney)

attempted to declare Simms in default of the Contract for failing

to close within ninety days of February 4, 2005.                 Herder further

insisted    in   the   letter   that    Simms   had   thereby    forfeited   his

$100,000.00 deposit being held in escrow by Agent Mastin and

demanded that Agent Mastin disburse half of Simms’ $100,000.00

deposit to her, per the terms of Paragraph 4 of the Contract.

     On October 10, 2006, Herder filed the present federal court

action     against     Simms,   based    upon   diversity       of   citizenship

jurisdiction.        The sole cause of action at issue in the present

appeal is Herder’s breach of contract claim under Virginia common

law alleging that Simms breached the Contract by failing to notify

her of any title defects prior to the closing conference on June 6,

2005 and by failing to close on the Property on June 6, 2005.                 As

a remedy, Plaintiff sought $50,000.00 (half of Simms’ $100,000.00),

plus prejudgment interest, at the statutory rate, commencing on May

5, 2005.4

     Herder made a motion for summary judgment with respect to her

breach of contract claim, which the district court ultimately

granted.     In so granting, the district court reasoned that Simms

was contractually obligated to close the transaction no later than


     4
      Herder also asserted a claim alleging slander of title, upon
which the district court ultimately entered judgment in favor of
Simms.

                                       - 7 -
June 6, 2005, regardless of the title defects, because although

Simms knew (through his attorney) of the title defects prior to the

June 6, 2005 closing conference, he failed to notify Herder of any

such defects prior to that conference.     The district court entered

final judgment in favor of Herder in the amount of $50,000.00, plus

prejudgment interest, at the statutory rate, commencing May 5,

2005.    This timely appeal followed.



                                  II.

       The crux of Simms’ position on appeal is that he cannot be held

to have breached the Contract by failing to close the transaction

on June 6, 2005, when the uncontradicted evidence shows that, on

June 6, 2005, the parties mutually agreed to delay closing the

transaction until as soon as reasonably practical in order to clear

up the title defects regarding the out-conveyances.      We review de

novo the district court’s grant of summary judgment in favor of

Herder, applying the same standard as did the district court and

construing the facts in the light most favorable to Simms, the

nonmoving party.    See Holland v. Washington Homes, Inc., 487 F.3d

208, 213 (4th Cir. 2007).    Summary judgment is appropriate when the

evidence demonstrates that no genuine issue of material fact exists

and that the moving party is entitled to judgment as a matter of

law.    Fed. R. Civ. P. 56(c).




                                 - 8 -
       After carefully considering the summary judgment record, we

hold that even viewing the evidence in the light most favorable to

Herder, no reasonable juror could find that Simms breached the

Contract by failing to close the transaction by June 6, 2005.    The

Contract required a closing date “within 90 days [of execution],

unless extended to a later date by a mutual consent of all parties.”

(J.A. 42) (emphasis added).      Herder agrees that she and Simms

mutually agreed to extend the first closing date from May 5, 2005

to June 6, 2005.     With respect to whether the parties mutually

agreed to extend the closing date past June 6, 2005, we hold that,

even    viewing the evidence in the light most favorable to Herder,

a reasonable jury could only find that the parties mutually agreed

to extend the closing date past June 6, 2005, in order to clear up

the title defects created by the two out-conveyances.

       First, although Herder argued below, and continues to argue on

appeal, that she never agreed to extend the closing date beyond June

6, 2005, her deposition testimony in this case conclusively belies

her litigation position. Herder testified that she left the closing

conference on June 6, 2005, taking her purported deed of conveyance

with her, “with the understanding that things had to be fixed in

order for the deal to be completed[.]” (J.A. 170) (emphasis added).

She further testified that although she could not explain exactly

what such a fix entailed, “[she] kn[e]w it had to be fixed.”     Id.

(emphasis added). No reasonable juror could hear this testimony and


                                - 9 -
reach any finding other than Herder agreed, at the June 6, 2005

closing conference, to extend the closing date to a time in the near

future once the title defects at issue had been cured.

      Second, wholly consistent with Herder’s just-quoted testimony,

the   record   contains   the   uncontradicted    testimony   of   Attorney

Goodpasture    that   he,   “Ms.    Herder[,]     and   [Attorney]    Still

. . . discussed the situation and agreed that [they] would in good

faith figure out what the fact[s] were, get a correct description

of the property, and then close as soon as reasonably practical.”

(J.A. 187) (emphasis added).

      Fatal to Herder’s defense of the judgment below is the fact

that there is no evidence in the record to contradict either her or

Attorney Goodpasture’s testimony.5          The icing on the cake is the

      5
      Herder argues that we must ignore Attorney Goodpasture’s
testimony regarding her agreement to extend the closing date beyond
June 6, 2005, because Simms testified during his deposition that he
personally was “not aware” of a conversation whereby Herder agreed
to extend the closing date past June 6, 2005. Herder’s argument is
without merit. Given the well established principle of Virginia
law   that  “[c]ommon   law   agency   principles   apply  to   the
attorney–client relationship,” Newman v. Newman, 593 S.E.2d 533,
538 (Va. Ct. App. 2004), the fact that Simms himself did not attend
the June 6, 2005 closing conference, and thus did not himself
personally agree to extend the closing date beyond June 6, 2005,
nor personally witness Herder make such an agreement, is of
absolutely no moment in the proper resolution of this appeal. The
record conclusively establishes that Attorney Goodpasture had
actual and apparent authority to agree, on behalf of Simms, to
extend the closing date beyond June 6, 2005, in order to cure the
title defects, and to accept, on behalf of Simms, Herder’s
agreement to do the same.     C.I.R. v. Banks, 543 U.S. 426, 436
(2005) (“The relationship between client and attorney, regardless
of the variations in particular compensation agreements or the
amount of skill and effort the attorney contributes, is a
quintessential principal-agent relationship.”) (“Even where the

                                   - 10 -
timing of Herder’s June 23, 2005 letter (through her attorney)

attempting to declare Simms in default of the Contract.      Herder

(through her attorney) did not send this letter until after she

received Attorney Goodpasture’s June 9, 2005 letter memorializing

the proposed agreement that he had hammered out with her attorney

to cure the title defects.   No reasonable juror could look at the

sequence of events in this case and reach any other conclusion but

that Herder consented, at the June 6, 2005 closing conference, to

extend the date to close the transaction past June 6, 2005, in order

to cure the title defects, but then subsequently regretted her

decision to consent and, thus, attempted to retract her consent.

     In sum, even viewing the evidence in the light most favorable

to Herder, a genuine issue of material fact does not exist regarding

whether the parties mutually consented to extend the date to close

the transaction beyond June 6, 2005.   The evidence only admits of

one conclusion--i.e., the parties mutually consented to extend the

date to close the transaction past June 6, 2005.   Therefore, Simms




attorney exercises independent judgment without supervision by, or
consultation with, the client, the attorney, as an agent, is
obligated to act solely on behalf of, and for the exclusive benefit
of, the client-principal, rather than for the benefit of the
attorney or any other party.”); Va. Elec. & Power Co. v. Bowers, 25
S.E.2d 361, 363 (Va. 1943) (“an attorney is the agent of his
client” and has the authority to take all lawful steps for the
protection of his client’s interests). In other words, as long as
Attorney Goodpasture, acting as Simms’ agent, was aware of Herder’s
as well as her attorney’s agreement to extend the closing date past
June 6, 2005 in order to cure the title defects at issue, the fact
that Simms was not aware of such facts is not legally relevant.

                              - 11 -
did not breach the Contract by failing to close the transaction by

June 6, 2005.

        One final point is worth addressing--i.e., the fact that Herder

and her attorney arrived at the closing conference on June 6, 2005,

with the mutual belief that Simms was not claiming that any title

defects existed. The district court’s breach of contract analysis

focused upon Simms’ failure to notify Herder of the title defects

created by her two previous out-conveyances prior to the June 6,

2005 closing conference.       According to the district court, by

waiting until the parties were at the closing table to raise the

issue of title defects, Simms had waived his right to cancel the

Contract and therefore, was required to close the transaction no

later than June 6, 2005, regardless of any title defects, or be in

breach of the Contract.      Herder takes this position on appeal as

well.

     The critical flaw in both the district court’s analysis and

Herder’s position is that they both rest upon a material misreading

of the operative unambiguous language of the Contract. Of relevance

to this issue, the Contract provides:

     BUYER shall have the right to have the title examined
     prior to closing and shall notify SELLER promptly of any
     defect rendering title to the property unmarketable. In
     the event such defect cannot be cured within a reasonable
     time, or SELLER elects not to cure the same, SELLER not
     being so required; then this contract may, at the option
     of BUYER, be cancelled before closing, and it is
     specifically agreed that the BUYER’S sole remedy shall be
     the return of the hereinabove deposit, without interest,
     and this contract and all rights and obligations of the


                                 - 12 -
     Parties hereto, shall be terminated and of no further
     force and effect.

(J.A. 42) (emphasis added).       There is no evidence in this case

indicating that Attorney Goodpasture, acting as the agent of his

client Simms, once learning of the title defects at the June 6, 2005

closing conference, failed to promptly notify Herder or her attorney

of such defects. Moreover, the evidence in the record is undisputed

that Attorney Goodpasture notified Herder and her Attorney of the

title defects “before closing,” thus entitling Simms to cancel the

Contract “[i]n the event such defect[s] cannot be cured within a

reasonable time, or SELLER elects not to cure the same . . . .”        Id.

Indeed, all parties agree that although the parties attended a

closing conference on June 6, 2005, a “closing” of the transaction

that is the subject of the Contract never took place.        Thus, there

is no breach to be found here either.



                                  III.

     In   conclusion,   because   no   reasonable   juror,   viewing   the

evidence in the light most favorable to Herder, could find that

Simms breached the Contract, Herder cannot prevail upon her breach

of contract claim as a matter of law.      Accordingly, we reverse the

judgment below.   Therefore, Simms is legally entitled to a full and

complete return of his $100,000.00 deposit, which, as far as the

record discloses, is still being held in escrow by Agent Mastin.

To be clear, neither Herder nor Agent Mastin is legally entitled to


                                  - 13 -
any portion of the $100,000 deposit made by Simms.   Any claim Agent

Mastin may have which flows from Herder’s breach of contract claim

is extinguished and in that regard Agent Mastin has no claim to the

$100,000 deposit made by Simms.

                                                           REVERSED




                              - 14 -
