T.g. Slater & Son, Incorporated v.  the Donald P. and Patricia A. Brennan LLC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 T.G. SLATER & SON, INCORPORATED,
Plaintiff-Appellant,
v. No. 03-1761 
THE DONALD P. AND PATRICIA A.
BRENNAN LLC,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-03-509-A)
Argued: May 6, 2004
Decided: September 30, 2004
Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.
Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Judge Luttig and Judge Traxler concurred.
COUNSEL
ARGUED: Michael Randolph Shebelskie, HUNTON & WILLIAMS,
Richmond, Virginia, for Appellant. David John Fudala, Fairfax, Vir-
ginia, for Appellee. ON BRIEF: Peter H. White, Paul D. Flynn,
HUNTON & WILLIAMS, McLean, Virginia, for Appellant. Daniel
M. O’Connell, Jr., O’CONNELL & MAYHUGH, P.C., Warrenton,
Virginia, for Appellee.

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OPINION
WIDENER, Circuit Judge:
Plaintiff T.G. Slater & Son, Inc. (Slater & Son) brought this action
against defendant The Donald P. and Patricia A. Brennan LLC (Bren-
nan LLC) in the United States District Court for the Eastern District
of Virginia, alleging breach of contract, fraud, tortious interference,
and related claims. Slater & Son, a licensed real estate broker, alleges
that Brennan LLC owes Slater & Son a commission or like compen-
sation for its services in a real estate transaction. Brennan LLC moved
to dismiss the complaint and the district court granted the motion. For
the reasons that follow, we vacate the judgment of the district court
and remand the case for further consideration in light of this opinion.
I.
In its Amended Complaint, Slater & Son alleges the following
facts, which we accept as true for purposes of reviewing a dismissal
under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6); Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). T. G. Slater & Son, Inc.
is a real estate agency that operates in Loudoun and Fauquier coun-
ties. Robert Slater, the owner of Slater & Son, is a licensed real estate
agent.
Maureen Brennan owns and lives on property next to Slater’s land.
Miss Brennan raises horses on her property, known as Foxmount.
The Donald P. and Patricia A. Brennan LLC, the defendant, is a
Delaware limited liability company whose principal is Maureen Bren-
nan’s father. Maureen Brennan’s mother may also be a member of
Brennan LLC.
Rachel Lambert Mellon is the former owner of a large tract of land
near both Slater’s land and Miss Brennan’s Foxmount farm. Slater
leased a portion of this property (the Mellon property) with his cousin
until early 2002.
On October 18, 2001, Maureen Brennan called Robert Slater.
There is no evidence that Miss Brennan and Slater were acquaint-
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ances before this call took place. Miss Brennan asked Slater if he
would rent out to her a portion of his land adjoining Miss Brennan’s
Foxmount farm so she could use the extra space for her horses. Slater
told Miss Brennan that he was not interested in renting out his farm-
land. Slater also told Miss Brennan that he was a real estate broker,
that he was leasing as a tenant adjoining land on the Mellon property,
and that he believed the Mellon property was about to go on the mar-
ket. Slater offered to show the land to Miss Brennan in his capacity
as agent for Slater & Son, Inc.
On October 19, 2001, Miss Brennan called Slater and retained him
to work on purchasing the Mellon property. Several days later, Slater
met Miss Brennan and her mother, Patricia Brennan, at his office at
T.G. Slater & Son, Inc. and took them to inspect the land. Slater spent
around one and a half hours showing Miss Brennan and her mother
the property and providing them with details including the location of
springs on the property. Slater and the Brennans returned to Slater’s
office, and Miss Brennan asked Slater to provide comparable sales
data and a tax plat showing the locations of other properties relative
to the Mellon land. Miss Brennan told Slater she wanted the informa-
tion because her father, Donald Brennan, wanted to review it.
On October 25, 2001, Slater faxed to Miss Brennan the information
she requested. The fax was on letterhead that stated: "T.G. Slater &
Son, Inc., REAL ESTATE AGENCY." Slater also obtained and fur-
nished to Miss Brennan and her family copies of soil and topographic
maps, aerial photographs of the land, and copies of the deed, deed
restrictions, and covenants on the property.
The following day, Miss Brennan asked Slater if he would show
her another piece of property adjoining the Mellon property because,
she explained, her boyfriend was interested in purchasing that prop-
erty as well. After examining that property Miss Brennan told Slater
her boyfriend would not be interested.
About a week later, Miss Brennan contacted Slater and arranged
for Slater to show her the Mellon property again, this time with both
her mother and father. When the group returned to Slater’s office at
Slater & Son, they discussed making an offer to purchase the prop-
erty. Slater told Miss Brennan that the custom in Virginia was for the
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buyer’s real estate agent to prepare the contract which is then
reviewed by the buyer’s attorney.
At this point the Mellon property was still not listed for sale, but
Slater knew that a real estate agent, Babette Scully, was working for
Miss Mellon to finalize a listing. Slater contacted Miss Scully several
times to inquire about the status of the listing. On November 9, 2001,
the Mellon Property was formally listed for sale on the Multiple List-
ing Service. Miss Scully was identified as the listing agent. Around
the same time, Slater spoke with Miss Scully and was told that Miss
Mellon had identified the Brennans as an exclusion to the listing
agreement, meaning that if any of the Brennans purchased the prop-
erty, Miss Scully would not receive her commission.
Slater then began trying to contact Miss Brennan but Miss Brennan
never returned any of his calls. Slater also faxed the listing to Miss
Brennan with a letter seeking to arrange a meeting. Shortly after these
events, Slater received a call from an attorney representing Miss
Brennan. The attorney told Slater that Miss Brennan was unavailable
to talk with Slater and that the attorney was now representing her in
"these matters."
On January 15, 2002, the farm manager of the Mellon Property
hand delivered to Slater a letter informing him that the Mellon Prop-
erty had been sold. Slater received the letter because, at the time, he
and his cousin were still leasing part of the Mellon property. The let-
ter required Slater to remove his equipment and vacate the property
within 60 days. The farm manager told Slater the property had been
sold to the Brennans. Slater later learned that the Mellon Property had
been bought for $3.8 million by The Donald P. and Patricia A. Bren-
nan LLC, a company in which Miss Brennan’s father is the sole
known principal, although Miss Brennan’s mother may also be a
member. Slater did not receive a commission or other compensation
for his work in assisting Miss Brennan and her family with the pur-
chase of the property.
On April 16, 2003, Slater & Son, Inc. filed a complaint against
Brennan LLC in U.S. District Court for the Eastern District of Vir-
ginia. The complaint alleged six counts: breach of contract, fraud,
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implied breach of contract, tortious interference, common law con-
spiracy, and statutory conspiracy.
Brennan LLC moved to dismiss the complaint under 12(b)(1),
alleging that the citizenship of Brennan LLC’s members was not
alleged. Slater & Son amended its complaint to allege the citizenship
of Brennan LLC’s members. Brennan LLC also filed a motion to dis-
miss under 12(b)(6).
The district court granted Brennan LLC’s motion to dismiss from
the bench, giving its opinion orally at a hearing on the motion. The
district court stated that the complaint did not allege that the parties
ever discussed a specific rate of commission and that the contract
would need to be in writing to comply with the statute of frauds. The
court also stated that there was no allegation in the complaint of any
misrepresentations, and that without evidence of a contract there
could be no tortious interference claim. It concluded that: "I am going
to grant this motion to dismiss, because I find that as this complaint
is written, it has failed to state any cause of action against this defen-
dant," and entered its final order.
II.
We review de novo the dismissal of a complaint under Rule
12(b)(6) for failure to state a claim upon which relief can be granted.
GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548
(4th Cir. 2001). A Rule 12(b)(6) motion to dismiss "should not be
granted unless it appears certain that the plaintiff can prove no set of
facts which would support its claim and would entitle it to relief."
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). In
considering the motion, "the court should accept as true all well-
pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., 7 F.3d at 1134. The district
court granted Brennan LLC’s motion to dismiss on each of the five
claims raised in the complaint—breach of contract, implied contract,
fraud, tortious interference, and statutory and common law conspir-
acy. We address the district court’s ruling on each of these claims in
turn.
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A. Breach of Contract
The district court stated three grounds on which it relied in dismiss-
ing Slater & Son’s breach of contract claim: (1) that the contract can-
not be enforced because of the statute of frauds; (2) that the contract’s
terms were too indefinite to enforce; and (3) that the alleged contract
was between the Brennans as individuals and not the Brennan LLC.
For the reasons that follow, we reverse.
The district court found that there was no writing in the case and
dismissed the breach of contract claim for failing to satisfy the statute
of frauds. The district court correctly noted that the Amended Com-
plaint does not allege the existence of a written contract signed by the
party to be charged. However, dismissal under 12(b)(6) is appropriate
only if the plaintiff can prove no set of facts that would support its
claim. Mylan Labs., 7 F.3d at 1134. Under Virginia law, there are sev-
eral ways in which a contract that does not satisfy the statute of frauds
may be enforced. Because Slater & Son’s has alleged facts that would
allow it to enforce the contract, even in the absence of a written agree-
ment, the district court erred in relying on the statute of frauds to sup-
port dismissal under Rule 12(b)(6).
In T . . . v. T . . ., 224 S.E.2d 148, 151 (Va. 1976), the Virginia
Supreme Court held that "under certain conditions, where there has
been part performance, a court of equity will avoid the statute [of
frauds] and enforce an oral agreement." T . . . v. T . . ., 224 S.E.2d
at 151. The two "conditions" required under T . . . v. T . . . are (1)
that the oral agreement is "certain and definite," and (2) that the part
performance is so extensive that refusal to honor the oral agreement
"would operate as fraud upon the party." T . . . v. T . . ., 224 S.E.2d
at 151. Slater & Son’s complaint alleges both the existence of a defi-
nite agreement and that Slater & Son performed a number of valuable
services for which it received no compensation. It also alleges that the
Brennan LLC sought to avoid paying the commission by deliberately
misleading Slater & Son. Viewing these allegations in the light most
favorable to Slater & Son, the Amended Complaint states a claim for
breach of contract on which relief could be granted, even in the
absence of a writing.
Moreover, the Amended Complaint alleges that several written
documents were sent to Miss Brennan memorializing the contract.
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Under Virginia law, a document acknowledging an oral contract can
be used to satisfy the statute of frauds if the document is signed by
the party to be charged. Drake v. Livesay, 341 S.E.2d 186, 188-89
(Va. 1986). After discovery, Slater & Son may be able to produce a
document signed by a member or agent of Brennan LLC, and thus
sufficient to satisfy the statute of frauds. Therefore, Slater & Son has
pleaded a claim upon which relief can be granted, and dismissal under
Rule 12(b)(6) was not appropriate.
In addition to relying on the statute of frauds, the district court held
that the contract could not be enforced because the terms of the
alleged contract were too indefinite to allow a "meeting of the minds."
The district court based its holding on the failure of the Amended
Complaint to allege "whether there was a commission that was quoted
to the Brennans, whether the Brennans had given oral consent to pay
the commission, [and] whether they understood that they were engag-
ing brokerage services."
We do not agree that the alleged contract is too indefinite to
enforce. The complaint alleges that "Ms. Brennan made an express
oral contract with Slater & Son, through its agent Mr. Slater, that it
would be paid a customary real estate commission for its services."
This allegation, taken as true, is sufficient to support a claim for
breach of contract under Virginia law. Where a contract is silent or
ambiguous as to the commission to be paid for services, "certain cus-
tom or usage of the business and of the locality, known to the parties,"
or so generally and notoriously known that it is presumed to be
known, is admissible to establish the rate the parties agreed to under
the contract. Hansbrough v. Neal, 27 S.E. 593 (Va. 1897); see
Westmoreland-LG&E Partners v. Virginia Electric & Power Co., 486
S.E.2d 289, 293 (Va. 1997). Any determination of the precise custom
or trade usage and whether the Brennan LLC had knowledge of that
custom, or is presumed to have knowledge of the same, is a factual
issue not appropriate for resolution in this motion to dismiss. The
Amended Complaint alleges that the parties agreed that Slater & Son
"would be paid a customary real estate commission for its services."
Because trade usage and custom may be used to determine the appro-
priate rate of commission, this allegation is sufficiently definite to
support a claim for breach of contract.
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Finally, the district court dismissed the breach of contract claim
because it found that the claim did not state a cause of action against
Brennan LLC, but only against the three Brennans as individuals. We
do not agree. In the Amended Complaint, Slater & Son specifically
alleges that "Ms. Brennan acted as the agent of the Brennan LLC in
entering this oral contract, thereby binding her principal to the terms
of the agreement." The fact that Brennan LLC may not have been
legally formed until after Slater & Son and Miss Brennan allegedly
entered into their agreement does not alter our conclusion. Virginia
law allows an agent or promoter of a business entity to bind the entity
to contracts even before that entity is formed. Branning Mfg. Co. V.
Norfolk-Southern R. Co., 121 S.E. 74, 81 (Va. 1924); see Strause v.
Richmond Woodworking Co., 65 S.E. 659, 661 (Va. 1909). Thus Sla-
ter & Son’s complaint, which alleges that Miss Brennan acted on
behalf of Brennan LLC to secure the contract, is sufficient to state a
claim for breach of contract against Brennan LLC.
For the reasons stated, we find that the district court erred when it
dismissed Slater & Son’s breach of contract claim under Rule
12(b)(6). At this point in the proceedings, taking the allegations in the
Amended Complaint as true, Slater & Son has stated a claim for
breach of contract. Further consideration of the statute of frauds, the
terms of the alleged contract, and the proper parties to the contract
must wait until the parties have had an opportunity to develop the
facts. Accordingly, we vacate the district court’s dismissal of Slater
& Son’s claim.
B. Implied Contract
In addition to bringing a breach of contract claim, Slater & Son
brought a claim on implied contract. The district court granted Bren-
nan LLC’s motion to dismiss this claim, but did not discuss its rea-
sons for doing so. Again, we vacate the decision of the district court.
Virginia courts have long recognized an action for "contract
implied in law" or quantum meruit by "requiring one who accepts and
receives the services of another to make reasonable compensation for
those services." Po River Water & Sewer Co. v. Indian Acres Club of
Thornburg, Inc., 495 S.E.2d 478, 482 (Va. 1998). To state a claim for
implied contract, the plaintiff must allege "that (i) he rendered valu-
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able services, (ii) to the defendant, (iii) which were requested and
accepted by the defendant, (iv) under such circumstances as reason-
ably notified the defendant that the claimant, in performing the work,
expected to be paid by the defendant." Raymond, Colestar, Glapsy &
Huss, P.C. v. Allied Capital Corp., 961 F.2d 489, 491 (4th Cir. 1992).
Slater & Son has pleaded each of these elements. The complaint
alleges that Slater & Son performed a number of valuable services for
Brennan LLC, that those services were requested by Brennan LLC,
and that Brennan LLC "indicated to Mr. Slater that Slater & Son
would be paid a commission on the purchase of any real estate result-
ing from his services." (Amended Comp. ¶ 48)
However, Brennan LLC argues that an implied contract claim can-
not be brought to recover for brokerage services in real estate transac-
tions because allowing the claim would thwart the statute of frauds.
In support of this argument, Brennan LLC cites cases from California,
New Jersey, and Texas. No Virginia court has followed this reason-
ing, however, and the Supreme Court of Virginia has repeatedly held
in other circumstances that an implied contract action may be brought
even if the underlying contract did not comply with the statute of
frauds. Cochran v. Bise, 90 S.E.2d 178, 182 (Va. 1955); Ricks v. Sum-
ler, 19 S.E.2d 889, 891-892 (Va. 1942). Moreover, at least one Vir-
ginia Circuit Court has addressed a very similar, even if not the same,
issue, albeit in dicta, and suggested that "the statute of frauds has no
application to an action on implied contract" for payment of commis-
sion on a real estate transaction. All Pro Realty Assoc., Inc., v.
Travilian Homes, Inc., 41 Va. Cir. 366 (1997).
Thus, while we are aware that some other jurisdictions may pro-
hibit recovery on implied contract for real estate brokerage services,
we are not convinced that Virginia courts would adopt a similar blan-
ket rule. Virginia law regarding implied contracts evinces an intent to
prevent a party to such an unenforceable contract from receiving the
benefits of the other party’s performance without providing reason-
able compensation for those benefits in return. See Cochran v. Bise,
90 S.E.2d 178, 182 (Va. 1955). Slater & Son alleges in the Amended
Complaint that it performed a number of valuable services for the
Brennan LLC including inspecting the Mellon property, obtaining
copies of soil and topographic maps and aerial photographs, and
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researching the deed and deed restrictions on the property. Thus, the
complaint, which we must take as true at this stage in the proceedings,
alleges that Slater & Son performed valuable services for the Brennan
LLC with the expectation that it would be paid. Under Virginia law,
Slater & Son may bring an action on implied contract to recover the
reasonable value of those services. Therefore, we hold that Slater &
Son pleaded a claim for implied contract on the facts alleged in the
complaint and the district court erred in dismissing the claim.
C. Fraud
As with the implied contract claim, the district court did not state
its reasons for dismissing Slater & Son’s fraud claim. We vacate the
order.
A claim of fraud may be brought in Virginia based on a defen-
dant’s alleged misrepresentation of intent to perform. In Colonial
Ford Truck Sales, Inc. v. Schneider, 325 S.E.2d 91, 94 (Va. 1985), the
Supreme Court of Virginia identified the elements of this claim:
"When [the defendant] makes the promise, intending not to perform,
his promise is a misrepresentation of present fact, and if made to
induce the promisee to act to his detriment, is actionable as an actual
fraud." Schneider, 325 S.E.2d at 94 (emphasis in original). The court
then held that the elements required for such a claim are: (1) the
defendant made a promise knowing it was false, (2) with the intent
to induce the promisee to perform, and (3) the promisee acts on the
promise to his detriment.
Slater & Son’s complaint alleges that "[t]he Brennan LLC’s agents
intentionally and knowingly represented the Brennan LLC’s present
intent to compensate Slater & Son for Mr. Slater’s services, with the
intent to mislead Slater & Son." Amended Comp. ¶ 41. "In reliance
on these misrepresentations by the Brennan LLC’s agents, Slater &
Son invested significant amounts of time and effort to aid the Bren-
nans." Amended Comp. ¶ 42. Taking the allegations in the complaint
as true, we find that Slater & Son has properly alleged a claim of
fraud. Accordingly, the district court erred in dismissing Slater &
Son’s fraud claim.
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D. Tortious Interference
The district court dismissed Slater & Son’s tortious interference
claim, stating only that "there has not been an allegation of any kind
of a contract with which there could be tortious interference." We dis-
agree.
Virginia recognizes the claim of tortious interference with a con-
tract. "The elements required for a prima facie showing of the tort are:
(1) the existence of a valid contractual relationship or business expec-
tancy; (2) knowledge of the relationship or expectancy on the part of
the interferor; (3) intentional interference inducing or causing a
breach or termination of the relationship or expectancy; and (4) resul-
tant damage to the party whose relationship or expectancy has been
disrupted." Chaves v. Johnson, 335 S.E.2d 97, 102 (Va. 1985).
In its Amended Complaint, Slater & Son alleges (1) the existence
of a "valid contractual relationship" between Slater & Son and Patri-
cia Brennan, (2) that Brennan LLC "was aware of the existence of the
contractual relationship," (3) that the Brennan LLC "intentionally
interfered" with that relationship "for the purpose of avoiding the pay-
ment of Slater & Son’s reasonable commission." and (4) that as a
result of the interference "Slater & Son suffered a loss in the form of
lost commissions." Amended Comp. ¶ 54-57. Thus, Slater & Son
pleaded each of the elements of a claim of tortious interference.
The district court, however, dismissed the claim because it found
Slater & Son had not alleged the existence of a contract. For the rea-
sons set out in discussing the breach of contract claim, we find that
Slater & Son has alleged the existence of a valid contract. Moreover,
under Virginia law, the existence of a contract is not a prerequisite to
a claim of tortious interference. The interference may be to a "con-
tract expectancy," meaning a contract that was expected to come into
force in the future. Maximum, Inc. v. Lockheed Management Informa-
tion Systems Co., 493 S.E.2d 375, 378 (Va. 1997). Slater & Son’s
allegations of a "contractual relationship" supported by specific fac-
tual assertions meets the pleading requirements of a contract expec-
tancy.
Thus, viewing the allegations in the light most favorable to the
plaintiff, we hold that Slater & Son properly pleaded a cause of action
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for tortious interference. Accordingly, the district court erred in dis-
missing Slater & Son’s tortious interference claim for failure to state
a claim on which relief could be granted.
E. Conspiracy
The district court also dismissed Slater & Son’s statutory and com-
mon law conspiracy claims without providing its reasons for doing so.
We are of opinion that the district court also erred in dismissing these
claims.
A claim for statutory civil conspiracy under Virginia law must
allege (1) two or more persons combined, associated, agreed, or
mutually undertook together to (2) willfully and maliciously injure
another in his reputation, trade, business, or profession. Va. Code
Ann. §§ 18.2-499, 500; Michigan Mut. Ins. Co. v. Smoot, 128
F.Supp.2d 917, 924-25 (E.D. Va. 2000). Likewise, "[a] common law
conspiracy consists of two or more persons combined to accomplish,
by some concerted action, some criminal or unlawful purpose or some
lawful purpose by a criminal or unlawful means." Commercial Bus.
Sys., Inc. v. BellSouth Servs., Inc., 453 S.E.2d 261, 267 (Va. 1995).
The Amended Complaint alleges that "the Brennan LLC, Ms.
Brennan, the sellers of the Slater Land, or others combined to termi-
nate and interfere with the contractual relationship between Ms. Bren-
nan and Slater & Son." Amended Comp. ¶ 62 Specifically, the
complaint alleges that the parties to the conspiracy acted together to
complete the sale of the farm without paying Slater & Son a commis-
sion for the work it performed. The Amended Complaint further
alleges that this conduct was "intentional, purposeful and without
lawful justification" and resulted in "substantial monetary damages to
Slater & Son." Amended Comp. ¶ 62-63.
Viewing the complaint in the light most favorable to the plaintiff,
we hold that Slater & Son has properly pleaded a claim for both statu-
tory conspiracy and common law conspiracy. Accordingly, the district
court erred by dismissing Slater & Son’s common law and statutory
conspiracy claims for failure to state a claim on which relief can be
granted.
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III.
Accordingly, the judgment of the district court is vacated and the
case remanded to the district court for proceedings not inconsistent
with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS*
*The complaint in this case was filed April 18, 2003, and a motion to
dismiss on the grounds of Fed. R. Civ. P. 12(b)(1) (lack of subject matter
jurisdiction) and 12(b)(6 (failure to state a cause of action) was filed May
12, 2003. An amended complaint was filed May 21, 2003, and a motion
to dismiss under Fed. R. Civ. P. 12(b)(6) (failure to state a cause of
action) was filed May 23, 2003. No action was taken on the first motion
to dismiss. The second motion to dismiss was argued, however, May 30,
2003, and no reference in that argument was made to jurisdiction. The
order dismissing the case was entered by the district court that same day,
May 30, 2003, the order stating: "Defendant’s motion to dismiss is
denied as moot, and Defendant’s motion to dismiss amended complaint
is granted. Accordingly, it is hereby ordered that Plaintiff’s complaint is
dismissed."
The order of May 30, 2003 ordinarily might well mean that the first
motion to dismiss was denied as moot, and the second motion to dismiss
was granted. That is corroborated by the entry in the docket of May 30,
2003, stating that the order of May 30, 2003 denied "as moot motion by
Donald & Patricia to dismiss this action pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6)." The order appealed from is treated by both par-
ties as an order dismissing the case for failure to state a cause of action,
and we so treat the same.
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