OCTOBER/NOVEMBER 2006 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/13
to interfere. Since what conduct
actually constitutes !improper means
or methods# is fact driven and
constantly evolving, lawyers can
expect to see many more cases reach
the Supreme Court of Virginia on
precisely this issue. VBA
NOTES
1. See W. Page Keeton, Prosser & Keaton On The
Law Of Torts § 129, at 970-80 (5th ed. 1984)
(observing that the status or relation in which the
parties stood toward one another and with which the
defendant interfered was the focus, rather than the
existence of a contract, as the theory was that the
head of the household s wife, children, slaves or
other members of his establishment were so
associated with him as to constitute a wrong against
the head of the household) (hereinafter, !Prosser").
2. Restatement (Second) of Torts § 766, at 8-9
(1979).
3. 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853);
see generally Tortious Interference With Contractual
Relations In The Nineteenth Century: The
Transformation of Property, Contract, And Tort, 93
Harv. L. Rev. 1510 (1980).
4. Restatement (Second) of Torts § 766 at 9;
Prosser § 129, at 980-81.
5. Prosser § 129, at 980-81.
6. 198 Va. 533, 536, 95 S.E.2d 192, 196 (1956)
(holding that !under these allegations, the wrong
done and damage done are directed to the estate or
property of the plaintiffs and not to them personally")
(citations omitted).
7. See Watson v. Lee Bank & Trust Co., 22 Va. Cir.
495, 505 (County of Lee May 7, 1982) (noting that
!Virginia does not appear to have developed a well-
defined body of law for tortious interference with
contractual or business relations, the most analogous
cases being conspiracy to induce breach of contract
or misrepresentations or fraud or deceit or libel or
slander which results in breaches of contract or tend
to injure others in their trade or business.") (citing
Worrie and M. Rosenberg & Sons v. Craft, 182 Va.
512, 29 S.E.2d 375 (1944)).
8. Chaves v. Johnson, 230 Va. 112, 120, 335
S.E.2d 97, 102 (1985); see also Instruction 40.150,
II Va. Model Jury Instructions (setting forth the
elements a verdict must be based upon to recover for
tortious interference with a contract that is not
terminable at will).
9. Prosser § 129, at 982.
10. Chaves, 230 Va. at 121, 335 S.E.2d at 102-03;
see also Maximus, Inc. v. Lockheed Info. Mgmt. Sys.
Co., 254 Va. 408, 414, 493 S.E.2d 375, 378
(1997) (holding that plaintiff was not required to
prove malice or other egregious conduct in order to
prove its tortious interference claim); Simbeck, Inc. v.
Dodd-Sisk Whitlock Corp., 44 Va. Cir. 54, 65 (City of
Winchester 1997) (stating that !proof of actual malice
or ill will is not necessary in order to recover for
tortious interference with an existing contract that is
not terminable at will"), aff d, 257 Va. 53, 508
S.E.2d 601 (1999); Prosser § 129, at 982-89
(discussing intent requirement).
11. Duggin v. Adams, 234 Va. 221, 227-28, 360
S.E.2d 832, 836 (1987);
12. Id. at 226, 360 S.E.2d at 836 (citing Hechler
Chevrolet v. Gen. Motors Corp., 230 Va. 396, 402,
337 S.E.2d 744, 748 (1985)); accord Rappahannock
Pistol & Rifle Club, Inc. v. Bennett, 262 Va. 5, 546
S.E.2d 440 (2001); see also George K. Degnon
Assocs. v. Acad. for Eating Disorders, Law No.
227768, 2005 Va. Cir. LEXIS 202 (County of Fairfax
Circuit Ct. Nov. 29, 2005) (holding that three year
contract was not terminable at will because defendant
did not give notice to terminate the contract as
required by its terms); Prof l Heating & Cooling, Inc. v.
Smith, 64 Va. Cir. 313 (City of Norfolk 2004) (ruling
that plaintiff had to demonstrate improper methods
because preventive maintenance contracts were
terminable at will); Instruction 40.150, II Va. Model
Jury Instructions (setting forth the elements a verdict
must be based upon to recover for tortious interference
with a contract terminable at will).
13. Duggin, 234 Va. at 226, 360 S.E.2d at 836
(citing Truax v. Raich, 239 U.S. 33, 38 (1915)).
14. Duggin, 234 Va. at 226-27, 360 S.E.2d at 836;
see also Maximus, 254 Va. at 414, 493 S.E.2d at
378 (noting that !not all business relationships are
entitled to the same level of protection and . . . that a
contract not terminable at will was entitled to more
protection than a contract terminable at will") (citing
Duggin).
15. Maximus, 254 Va. at 414, 493 S.E.2d at 378;
accord Williams v. Dominion Tech. Partners, L.L.C.,
265 Va. 280, 289-90, 576 S.E.2d 752, 757 (2003)
(quoting Glass v. Glass, 228 Va. 39, 51-52, 321
S.E.2d 69, 76-77 (1984)).
16. See Masco Contractor Servs. E., Inc. v. Beals,
279 F. Supp. 2d 699, 710 (E.D. Va. 2003) (dismissing
tortious interference counterclaim in ruling that ![t]he
counterclaim makes absolutely no mention of any
particular contract" or existing business relationship);
accord Commerce Funding Corp. v. Worldwide Sec.
Servs. Corp., 249 F.3d 204, 213 (4th Cir. 2001);
see also Cranor v. Homebuyers Inspections, Inc., 69
Va. Cir. 10, 11 (City of Richmond 2005) (ruling that
plaintiff sufficiently alleged the elements of a tortious
interference claim).
17. Sunsport, Inc. v. Barclay Ltd., 984 F. Supp. 418,
423 (E.D. Va. 1997).
18. Marina Shores, Ltd. v. Cohn-Phillips, Ltd., 246
Va. 222, 226, 435 S.E.2d 136, 138 (1993) (citing
Winn v. Aleda Constr. Co., 227 Va. 304, 307, 315
S.E.2d 193, 194 (1984).
19. Marina Shores, Ltd., 246 Va. at 226, 435
S.E.2d at 138 (citation omitted).
20. Id.
21. Fox v. Deese, 234 Va. 412, 427, 362 S.E.2d
699, 708 (1987); see also Hatten v. Campbell, No.
CL06-259, 2006 Va. Cir. LEXIS 118, at *10 (County
of Chesterfield Circuit Ct. June 5, 2006) (holding that
!a person cannot intentionally interfere with his own
contract"); Britt Constr., Inc. v. Magazzine Clean,
L.L.C., 69 Va. Cir. 478, 480 (County of Loudoun
2006) (holding that the general contractor s allegations
sufficiently stated an action for tortious interference
despite the architect s agency relationship with the
owner based upon the contractually expressed
limitation upon the nature of the architect company s
relationship with the owner).
22. Smith v. Logan, 363 F.Supp.2d 804, 813 (E.D.
Va. 2004).
23. Power Distrib. v. Emergency Power Eng g, 569
F. Supp. 54, 56 (E.D. Va. 1983).
24. Ortiz v. Flattery, 63 Va. Cir. 309, 312 (County of
Fairfax 2003).
25. Sunsport, Inc., 984 F. Supp. at 423.
26. Marketplace Holdings, Inc. v. Camellia Food
Stores, Inc., At Law No. L03-2601 (City of Norfolk
Circuit Ct. Feb. 27, 2004).
27. See James D. Pearson, Annot., Liability for
Interference with Invalid or Unenforceable Contract,
96 A.L.R.3d 1294 (1979) (discussing examples in a
wide variety of states throughout the United States);
see also Restatement (Second) of Torts § 766
comment f (stating that a third party is not free to
interfere with the performance of a contract even the
if the third party may have a technical defense to
avoid liability, such as !the statute of frauds, formal
defects, lack of mutuality, infancy, unconscionable
provisions, conditions precedent to the obligation or
even uncertainty of particular terms").
28. See Am. Tel. & Tel. Co. v. E. Pay Phones, Inc.,
767 F. Supp. 1335, 1340 (E.D. Va. 1991) (citing
Glass v. Glass); Levine v. McLesky, 881 F. Supp.
1030, 1057 (E.D. Va. 1995) (concluding that !the
expectancy of remaining in business is too general to
support a tortious interference claim"), aff d in part,
rev d in part, 164 F.3d 210 (4th Cir. 1998).
29. Commercial Bus. Sys., Inc. v. Halifax Corp., 253
Va. 292, 301, 484 S.E.2d 892, 897 (1997) (ruling
that !mere proof of a plaintiff s belief and hope that a
business relationship will continue is inadequate to
sustain the cause of action").
30. See RFE Indus., Inc. v. SPM Corp., 105 F.3d
923, 927 (4th Cir. 1997) (concluding that plaintiff s
selling products on an as-needed basis to its
customers with no firm commitment for future
purchases only provided plaintiff with an expectation
that it !would retain its customers only so long as it
met their demand for a quality product at a competitive
price"); Eurotech, Inc. v. Cosmos European Travels
Aktiengesellschaft, 189 F. Supp. 2d 385, 391 (E.D.
Va. 2002) (holding that ![b]ecause plaintiffs do not
identify the specific business relationships with which
defendant has interfered, plaintiffs tortious interference
claim fails"); see also Levine, 881 F. Supp. at 1057-
58 (finding insufficient plaintiff s contention that its
members expects to renew their memberships was
specific enough); McDonald s Corp. v. Turner-James,
No. 05-804, 2005 U.S. Dist. LEXIS 42755, at *13
(E.D. Va. Nov. 29, 2005) (ruling that !merely identifying
the parties with whom Defendants had discussions in
#several telephone calls about #various aspect of the
restaurant and its operations . . . would still fall far
short of what they must allege to proceed with their
claims"); Williams, 265 Va. at 292, 576 S.E.2d at
758 (quoting Commercial Bus. Sys., Inc., 253 Va. at
303, 484 S.E.2d at 898).
31. Moore v. United Int l Investigative Servs., Inc.,
209 F. Supp. 2d 611, 619-20 (E.D. Va. 2002).
32. Charleston Area Med. Ctr., Inc. v. Blue Cross &
Blue Shield Mut. of Ohio, Inc., 6 F.3d 243, 247 (4th
Cir. 1993); Levine, 881 F. Supp. at 1058.
33. Prosser § 130, at 1006.
34. Levine, 881 F. Supp. at 1058; Am. Tel. & Tel.
Co., 767 F. Supp. at 1340.
35. Morris v. Massingill, 64 Va. Cir. 202, 203 (City of
Norfolk 2004).
36. French v. Garraghty, Case No. CH05-1285,
2006 Va. Cir. LEXIS 125, at *3 (City of Richmond
Circuit Ct. June 1, 2006).
37. McDonalds Corp. v. Turner-James, No. 05-804,
2005 U.S. Dist. LEXIS 42755, at **12-14.
38. Williams, 265 Va. 292, 576 S.E.2d at 758; see
also Simbeck, 44 Va. Cir. at 62 (observing that !the
business expectancy of a renewal insurance policy
was on the outer reaches of the concept of a cognizable
business expectancy").
39. Glass, 228 Va. at 51-52, 321 S.E.2d at 77.
40. Meadow Ltd. P ship v. Heritage Sav. & Loan
Ass n., 639 F. Supp. 643, 651 (E.D. Va. 1986).
41. Simbeck, Inc., 44 Va. Cir. at 62 (citing
Restatement (Second) of Torts § 766, comment i).
42. Restatement (Second) of Torts § 766 comment
i.
43. See John L. Costello, Virginia Remedies §
17A.02[5][a], at 17A-20 (3d ed. 2005) (noting that
no independent tort exists in Virginia for the negligent
interference with contract).
44. Duggin, 234 Va. at 226, 360 S.E.2d at 835.
45. Nida v. Bus. Advisory Sys., Inc., 44 Va. Cir. 487,
501 (City of Winchester 1998) (holding that !the fact
that defendant s activity has injured plaintiff s business
does not mean that plaintiff necessarily is entitled to
a remedy" as ![a]n injury may be of the kind which, in
a relatively free economy, a citizen is obliged to suffer,
an injury resulting from lawful competition of which he
cannot complain.").
46. Restatement (Second) of Torts § 766, comment
k.