IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ELIZABETH WAGENHOFFER
and JOHN WAGENHOFFER,

Plaintiffs,

VISIONQUEST NATIONAL

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v.. ) C.A. No.= N14C-10-203 VLM
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LTD and DoN DEvoRE, )
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Defendants.
Submitted: July 21, 2016
Decided: July 27, 2016
ORDER
Upon Defendant Don De Vore ’s Motion for Reargument of Ora'er Denyin g
Defendant ’s Motionfor Summary Juclgment on Count III of Plaim‘z`jj” ’s Complaint
(Tortz`ous Interference with Busz'ness and Contractual Relationshzps),

DENIED.

This 27th day of July, 2016, having considered Defendant Don DeVore’s
("DeVore") Motion for Reargurnent Order Denying Defendant’s Motion for
Summary Judgrnent on Count III of Plaintiff` s Complaint (Tortious Interference
with Business and Contractua1 Relationships) (D.I. 133); Plaintiff’s Response
thereto (D.I. 134); and the record in this rnatter, it appears to the Court that:

(1) This case arises out of P1aintiff Elizabeth Wagenhoffer’s

("Wagenhoffer") allegations against Defendant VisionQuest National Limited

("VisionQuest") for gender-based employment discrimination and retaliation in
violation of the Delaware’s Discrimination in Employment Act, and against Don
Devore ("DeVore") for tortious interference with her business and contractual
relationships.l

(2) VisionQuest and DeVore moved for summary judgment on
Wagenhoffer’s claims on May 11, 2016.2 Addressing the tortious interference
claim, DeVore largely argued that an at-will employee does not have a cause of
action under Delaware law.3 But even if Delaware did allow the tort, DeVore
argued that he acted in VisionQuest’s best interest in encouraging VisionQuest to
terminate Wagenhoffer. He says his alleged interference against Wagenhoffer was
justifi@d.‘*

(3) This Court heard oral arguments regarding summary judgment on July
14, 2016. In its July 18, 2016 Order, the Court held that numerous factual disputes

and conflicts existed as to VisionQuest’s reasons for Wagenhoffer’s termination

1 The facts are more fully set out in the Court’s July 18, 2016 Order Denying Defendants’

Motion for Summary Judgment and control this Order. See Order ("Order"), Wagenhojj‘er v.
Visionquest Nat’l Lta' et al., 2016 WL 3947952 (Del. Super. Ct. July 18, 2016) (D.1. 129).

2 Defs.’ Br. in Support of Summ. J. ("Defs.’ Br.") (D.1. 105). See also Defs.’ Reply (filed
June 7, 2016) (D.1. 110).

3 Defs.’ Reply at 16-17 (citing LeBlanc v. Redrow, 2001 WL 428686, at *2 (Del. Super. Ct.
Apr. 19, 2001)).

4 Defs.’ Br. at 34-35~..==_-

and as to whether DeVore acted without justification in interfering with her
contractual and business relationships. Summary judgment was denied.5

(4) DeVore now bases his Motion for Reargument on the contention that
in denying his motion for summary judgment the Court "did not fully consider the
issue of whether [DeVore’s] alleged interference with [Wagenhoffer’s]
relationship with VisionQuest, was outside the scope of DeVore’s own
employment . . ."6

(5) A motion for reargument pursuant to Superior Court Civil Rule 59(e)
permits the Court to reconsider "its findings of fact, conclusions of law, or

judgment . . ."7 It is not an avenue for the moving party to raise new arguments or

to rehash arguments already decided by the Court.g The motion will only be

-'.'.. -1_ 1 cia

5 See Order, 2016 WL 3947952, at *8-10. The Court also denied summary judgment as to
Wagenhoffer’s remaining claims.

6 DeVore’s Mot. for Rearg. at 11 9.

7 Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969) ("The manifest purpose of all
Rule 59 motions is to afford the Trial Court an opportunity to correct errors prior to an
appeal . . ."); Vaughn v. Jackerson, 2016 WL 3882476, at *1 (Del. Super. Ct. July 12, 2016);
Lamourine v. Mazda Motor of Am., Inc, 2007 WL 3379048, at *1 (Del. Super. Ct. Sept. 24,
2007). See also Del. Super. Ct. Civ. R. 59.

8 CNH America, LLC v. Am. Cas. C0. ofReadz`ng, Pa., 2014 WL 1724844, at *1 (Del.
Super. Ct. Apr. 29, 2014); Reid v. Hindt, 2008 WL 2943373, at *l (Del. Super. Ct. July 31,
2008).

While DeVore made no mention of the current "scope of employment" issue in either his
Motion for Summary Judgment or Reply, Wagenhoffer did raise the issue in her Opposition
Motion and the parties discussed scope of employment during oral arguments. The Court will
therefore address the matter now for enhanced clarity.

_3_

granted if "the Court has overlooked a controlling precedent or legal principles, or
the Court has misapprehended the law or facts such as would have changed the
outcome of the underlying decision."g

(6) As explained in its July 18th Order, the Court may only grant summary
judgment upon a showing "that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law."lo In considering
the motion, "[a]ll facts and reasonable inferences must be considered in a light
most favorable to the non-moving party."ll The moving party bears the burden of
establishing the non-existence of any material issue of fact.lz

(7) Wagenhoffer’s Complaint alleges tortious interference with business

and contractual relationships under sections 766A and 766B of the Restatement

(Second) of Torts against DeVore individually.w To prevail on her claim,

9 Lamowzne, 2007 wL 3379048, at *1;?,;

 

‘° Super. ct civ. R. 56(@); Ebers@ze v. L@wengrub, 130 A_zd 467, 463-69 (1)@1. 1962)
(Summary judgment will not be granted if there is a material fact in dispute or if "it seems
desirable to inquire thoroughly into [the facts] to clarify the application of the law to the
circumstances.").

ll Nutt v. A.C. & S. Co., Inc., 517 A.Zd 690, 692 (Del. Super. Ct. 1986).

12 See, e.g., sham v_ M¢D@wezz, 2003 WL 22853659, ar *1 (Del. Super. Ct. Aug. 5, 2003)
(discussing standard for summary judgment).

13 see C@mpl_ 1111 39-96.

The Restatement (Second) of Torts § 766A describes tortious interference with another’s
performance of his own contract as:

_4_

Wagenhoffer must prove the five elements set forth in the Restatement (Second)
Torts § 766: (a) the existence of a contract (b) about which DeVore knew, and
(c) an intentional act that is a significant factor in causing the breach of such
contract (d) without justification, (e) which causes injury.m While the Delaware
Supreme Court has not expressly required such a finding, DeVore is likely correct
that a tortious interference claim may not proceed against an employee unless his

alleged misconduct happened outside the scope of his employment.w

One who intentionally and improperly interferes with the performance of a
contract (except a contract to marry) between another and a third person, by
preventing the other from performing the contract or causing his performance to
be more expensive or burdensome, is subject to liability to the other for the
pecuniary loss resulting to him.

The Restatement (Second) of Torts § 766A describes tortious interference with a prospective
contractual relation as:

One who intentionally and improperly interferes with another’s
prospective contractual relation (except a contract to marry) is subject to liability
to the other for the pecuniary harm resulting from loss of the benefits of the
relation, whether the interference consists of (a) inducing or otherwise causing a
third person not to enter into or continue the prospective relation or (b) preventing
the other from acquiring or continuing the prospective relation.

14 See Irwz`n & Leighton, Inc. v. WM. Anderson Co., 532 A.Zd 983, 992 (Del. Ch. 1987)
(citing Restatement (Second) of Torts § 766).

Tortious interference with business expectancy is largely the same as tortious interference
with a contract, except a showing of an actual contract is not required Delaware Exp. Shutz‘le,
Inc. v. Older, 2002 WL 31458243, at *22 (Del. Ch. Oct. 23, 2002) ("The torts of interfering with
existing contracts and interfering with prospective contracts are closely related both historically
and in their required elements.").

15 see lawn v. Dezaware Sm¢e Um'v., 2016 wL 3575524, ar *14 (Del. super. Cr. June 24,
2016) ("Because a claim for tortious interference cannot lie against a party to the contract, an
agent to a party likewise cannot tortiously interfere with the contract, provided the agent was
acting in the scope of his employment.") (citing Nelson v. Fleet Nal. Bank, 949 F. Supp. 254,

»\-'._

 

(8) To determine whether DeVore’s actions were outside the scope of his
employment, Delaware courts adopt the test set forth in section 228 of Restatement
(Second) of Agency: "Conduct of a servant is within the scope of employment if,
but only if: (a) lt is of a kind he is employed to perform; (b) lt occurs substantially
within the authorized time and space limits; (c) lt is actuated, at least in part, by a

»16

purpose to serve the master . . . Thus, an employee only acts outside the scope

of his employment when his interests are severed from his employer’s.

(9) "Whether an employee has acted beyond the scope of employment is
generally a question for the jury, although the Court may decide it as a matter of
law if it is very clear."w Such clarity is not here. As the Court found, genuine
issues of material fact exist as to DeVore’s role in terminating Wagenhoffer,
including whether his actions push him outside the scope of his employment.

(lO) DeVore primarily argues that even if he was motivated by

discriminatory or retaliatory animus in encouraging Wagenhoffer’s termination, he

262-63 (D. Del.l996)). See also Shearin v. E.F. Hutton Grp., Inc., 652 A.2d 578, 590 (Del. Ch
l994) ("It is rudimentary that a party to a contract cannot be liable both for breach of that
contract and for inducing that breach. By slight extension it has been held that employees or
directors of a contracting corporation cannot be held personally liable for inducing a breach of
contract by their corporations when they act within their role.").

16 Deibert v. Wz`lmington Med. Ctr., 1973 WL 157943, at *l (Del. Super. Ct. Sept. 27,
1973);_=

17 Nelson, 949 F. Supp. at 263. See also Khan, 2016 WL 3575524, at *14; Doe v. State, 76
A.3d 774, 776 (Del. 2013) ("The question of whether a tortfeasor is acting within the scope of
his employment is fact-specific, and, ordinarily, is for the jury to decide.").

_6_

acted within the scope of his employment because he was at least partially
motivated by his desire to protect VisionQuest’s interests.lg In support, DeVore
cites a March 27, 2013 email between DeVore and Louis Kassa, VisionQuest’s
Regional Administrator, in which DeVore suggests that VisionQuest "find a way"
for Wagenhoffer to "officially recant" her hostile work environment claim and sign
a waiver for himself and VisionQuest.w DeVore suggests that this email clearly
establishes his intent to protect VisionQuest’s interests.zo

(l l) The Court cannot determine the credibility or sincerity of DeVore’s
motivations from this email. Nor should it when considering a motion for
summary judgment.zl A reasonable jury could infer from the email’s hostile tone
coupled with DeVore’s alleged gender-biased comments and conduct that DeVore

had only his own personal motivations in mind.zz

53 Dev@re’s-M@t. for i<@_;rg_ at 111 11-12.

‘9 1¢1.at1j12.

20 1a

21 Cerberus lnz’z, L¢d_ v_ Ap@llo Mgm¢., L.P_, 794 A.zd 1141, 1150 (Del. 2002) mr the
matter depends to any material extent upon a determination of credibility, summary judgment is
inappropriate. If a rational trier of fact could find any material fact that would favor the non-
moving party in a determinative way (z`.e., that the clear and convincing standard could be met at
trial), summary judgment is inappropriate. If a trial court must weigh the evidence to a greater
degree than to determine that it is hopelessly inadequate ultimately to sustain the substantive

burden, summary judgment is inappropriate.").

22 See Schagrin v. Wilmington Med. Ctr., Inc,, 304 A.2d 61, 63 (Del. Super. Ct. 1973)
(citing Vanaman v. Milford Mem’l Hosp., Inc., 272 A.2d 718 (Del. l970)) (summary judgment

_7_

(12) And, in satisfying the factors set forth in section 767 of the

3

Restatement (Second) of Torts,z Wagenhoffer’s Complaint contained sufficient

allegations and circumstantial evidence that DeVore discriminated against her
either because of her gender or in retaliation for her hostile work environment
complaint.% A rational juror could infer from his conduct that DeVore sought to
terminate Wagenhoffer’s employment based solely on her gender or as a retaliatory
action but, in either instance, with zero regard for VisionQuest. If this is so,
DeVore’s actions would fall outside the scope of his employment.z§ "Although

that evidence may not be sufficient to prevail at trial, scope of employment_is an

issue of material fact that requires presentation to the jury."%

_ _-1   -

must "be denied if there is a material fact in dispute, or a dispute as to the- i_nferences which

might be drawn therefrom") .

23 See Order, 2016 WL 3947952, at *9 (reciting factors as (a) the nature of the actor’s
conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct
interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in
protecting the freedom of action of the actor and the contractual interests of the other, (f) the
proximity or remoteness of the actor’s conduct to the interference and (g) the relations'between
the parties.). See also REsT. (SEcoND) oF ToRTs § 767 (1979).

24 see order, 2016 WL 3947952, at *9-10.

25 See, e.g., Khan v. Delaware State Univ., 2016 WL 3575524, at "‘14-15 (Del. Super. Ct.
June 24, 20l6) (denying summary judgment as to plaintiff’s tortious interference claim because a
factual dispute existed as to whether co-employee acted outside the scope of his employment in
allegedly discriminating against the plaintiff because of his age or as a result of personal
animus).

26 See icl. at *15. See also Cross v. Hoz`r, 258 A.2d 277, 278 (Del. l969) (". . . there is no
‘right’ to a summary judgment. Unless the Trial Court is reasonably certain that there is no
triable issue, it is within the Trial Court’s discretion to decline to decide-the merits of the case in
a summary adjudication, and to remit the parties to trial.").

_3_

(13) Because, for the reasons set forth herein and as stated in its July 18,
2016 Order, the Court finds that genuine issues of material fact exist. The

Defendant Don DeVore’s Motion for Reargument is DENIED.
IT IS SO ORDERED.

PAUL R. WALLACE, JUDGE

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