                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-2221


RICHARD GITTER,

                  Plaintiff - Appellant,

             v.

CARDIAC & THORACIC      SURGICAL   ASSOCIATES,   LTD.;   ROCKINGHAM
MEMORIAL HOSPITAL,

                  Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cv-00546-RLW)


Submitted:    July 8, 2009                   Decided:     July 21, 2009


Before TRAXLER, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Henry I. Willett, III, David B. Lacy, CHRISTIAN & BARTON, LLP,
Richmond, Virginia; Victor L. Hayslip, Walker S. Stewart, BURR &
FORMAN, LLP, Birmingham, Alabama, for Appellant.      Charles M.
Allen, GOODMAN, ALLEN & FILETTI, PLLC, Glen Allen, Virginia;
Marshall H. Ross, WHARTON ALDHIZER & WEAVER, PLC, Harrisonburg,
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

                  Richard      Gitter          appeals         the     district         court’s    order

adopting         the     magistrate           judge’s         report       and       recommendation     to

grant Defendants’ summary judgment motions on his claims for

breach       of        contract;          fraud,         misrepresentation                and     deceit;

fraudulent          suppression;               fraudulent            inducement          to     enter     a

contract; and conspiracy.                      On appeal, Gitter challenges only the

district          court’s      dismissal            of       his    breach       of    contract       claim

against Defendants.                  We vacate the district court’s order to the

extent that it determined that Gitter was barred by Virginia’s

“unclean         hands”       doctrine         from      asserting          that      Defendants       were

equitably estopped from relying on a Statute of Frauds defense,

but affirm the remainder of the district court’s order.

                  To establish a breach of contract claim under Virginia

law,     a       plaintiff          must       prove:         “(1)     a     legally          enforceable

obligation          of       [the]       defendant           to     [the]    plaintiff;         (2)     the

defendant's            violation         or    breach         of    that     obligation;         and    (3)

injury       or    damage          to    the       plaintiff        caused       by     the    breach    of

obligation.”             Filak v. George, 594 S.E.2d 610, 614 (Va. 2004)

(citations omitted).                     An obligation that is not to be performed

within       a     year       is        not    a    “legally         enforceable          obligation,”

however, if it is not “in writing and signed by the party to be

charged       or       his     agent.”             Va.       Code    Ann.        §    11-2(8)    (2006).

Gitter’s employment agreement was not to be performed within one

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year   and,    accordingly,        the     agreement          was    required      to    be   in

writing under Virginia’s Statute of Frauds.                              We conclude that

the district court correctly held that the parties’ various e-

mail    communications           did     not        constitute       a     signed       writing

sufficient to satisfy the Statute of Frauds.

              We nonetheless conclude that the district court erred

when it applied Virginia’s unclean hands doctrine to bar Gitter

from   claiming       that      Defendants          were    equitably         estopped    from

asserting the Statute of Frauds defense.                             Before the unclean

hands doctrine will bar an equitable remedy under Virginia law,

the alleged wrongdoing of the party seeking relief must have

“encouraged,         invited,          aided,       compounded,          or     fraudulently

induced” the other party’s wrongful conduct.                             Perel v. Brannan,

594 S.E.2d 899, 908 (Va. 2004).                     The district court agreed with

the    Defendants’         argument       that       a     credentialing         application

submitted      by    Gitter      contained          materially       false      information,

thereby tainting him with unclean hands.                            But it is undisputed

that Gitter’s credentialing application was neither relied upon

nor even reviewed by Defendants during their negotiations with

Gitter,   or    at    any       time    prior       to     their     decision      to   forego

consummating        Gitter’s      employment          agreement.           Thus,    Gitter’s

application,        even   if    misleading,          could    not       have   “encouraged,

invited, aided, compounded, or fraudulently induced” Defendants

to forego consummating the employment agreement.                                Accordingly,

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we find that the district court erred when it determined that

Gitter’s        allegedly       incorrect     responses         on   his    credentialing

application permitted invocation of the unclean hands doctrine

under Virginia law.             The district court’s order is thus vacated

to the extent that it applied the unclean hands doctrine to bar

Gitter from asserting that Defendants were equitably estopped

from relying on a Statute of Frauds defense.

                The     “[e]lements        necessary      to     establish         equitable

estoppel,        absent     a    showing     of   fraud     and      deception,        are     a

representation, reliance, a change of position, and detriment.”

See T--- v. T---, 224 S.E.2d 148, 151-52 (Va. 1976).                              Our review

of the magistrate judge's report and recommendation, which was

summarily adopted in its entirety by the district court, reveals

that the magistrate judge did not conclusively determine whether

Gitter     could        establish    the    necessary       elements        of    Virginia’s

equitable estoppel doctrine based on his post-March 28, 2007

conduct         (that     is,     whether      Gitter       reasonably            relied      on

Defendants’       March     28,     2007    assurances      that     the    terms      of    his

employment were agreed upon).

                Accordingly, we vacate the district court’s order to

the extent the court applied Virginia’s unclean hands doctrine

to   bar    Gitter       from     claiming    that       Defendants        were    equitably

estopped        from     asserting    the    Statute       of    Frauds      defense,        and

remand     to    the     district    court    for    a    determination           of   whether

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Defendants      should   be     equitably   estopped    from   asserting     the

Statute of Frauds as a defense to Gitter’s breach of contract

claim.   We affirm the remainder of the district court’s order.

We   dispense    with    oral    argument   because    the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                             AFFIRMED IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED




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