                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

                                               2
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,

                                             3
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”).

                                         4
            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

                                              5
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



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