Noah Nathan has brought this civil action against his employer, Takeda Pharmaceuticals (“Takeda”) and several of its current and former employees. Specifically, Plaintiff alleges defamation, breach of contract, common law conspiracy, and negligent supervision and retention of employees against Takeda and defamation, tortious interference and common law conspiracy against the current and former employees. Four of these employees, Michael Venanzi, Louis Savant, John Flood, and Cassandra Smith are nonresidents and appeared specially to dismiss this action against them for lack of personal jurisdiction. Subsequent to this motion’s being filed, Mr. Venanzi was personally served in the Commonwealth. Mr. Venanzi thereafter withdrew his petition for lack of jurisdiction and entered а
Background
A motion to dismiss for failure to properly allege personal jurisdiction “tests the legal sufficiency of facts alleged in the pleading, not the strength of proof.” Cabaniss v. Cabaniss,
Takeda hired Plaintiff in 2002 as a salеs representative. In 2004, Plaintiff was promoted to Specialty Sales Representative. This position required Plaintiff to travel to multiple locations in his designated sales territory and meet with healthcare professionals to inform them about pharmaceutical products Takeda manufactured. Plaintiff’s entire territory was located in Virginia. Prior to the events alleged in the Amended Complaint, Plaintiff was a highly successful sales representative and received multiple performance awards from Takeda.
In 2007, Defendant Michael Fouchie, a Virginia resident, became District Manager of Plaintiff’s territory and Plaintiff’s immediate supervisor. Starting in November 2008 and continuing through April 2009, Plaintiff and Fouchie developed a strained working relationship based on a dispute regarding Plaintiff’s habit of periodically dropping his child off at school. Tаkeda’s standard practice allows its sales representatives flexibility in determining their daily schedule. Fouchie, however, was adamant that Plaintiff should be “in the field” earlier and questioned why his wife could not assume responsibility for transporting the child. Plaintiff complained to Defendant Cassandra Smith, a Regional Human Resources Manager located in Illinois and a resident of that state, regarding Fouchie’s harassment.
In February 2009, Plaintiff attended a national meeting where he was certified to promote Takeda’s new drugs Uloric and Kapidex. After returning from that meeting, Fouchie’s immediate superior, Defendant Louis Savant, the Regional Sales Manager based out of Pennsylvania and a citizen of that state, directed Fouchie to recertify Plaintiff on Uloric. Plaintiff passed this recertification on February 12, 2009. Savant contacted Plaintiff by telephone several times regarding the recertification and his
On March 4, 2009, Savant accompanied Plaintiff for the ride along. During this time and on a telephone conference two days later, Savant made false accusations criticizing Plaintiff’s performance. Savant memorialized these false criticisms in a coaching letter Savant later sent to Plaintiff. He аlso informed Plaintiff he would need recertification on both Uloric and Kapidex.
On March 9,2009, Plaintiff met with Fouchie for his recertification on Uloric and Kapidex. Fouchie spent most of the meeting on the phone with Savant and concluded the meeting by refusing to recertify Plaintiff on both drugs. Plaintiff was thereafter told he would need to travel to Chicago the next day for additional training.
On March 10, 2009, Plaintiff traveled to Chicago and met with Defendant John Flood, a training manager and resident of Illinois. Flood had previously worked directly for Savant. During the recertification training, Flood issued confusing and contradictory instructions and used a different certification form than had been previously used. Flood ultimately recertified Plaintiff on Uloric but not Kapidex. Plaintiff claims that Savant contacted Flood and instructed him to prevent Plaintiff from being recertified. Flоod produced an evaluation report from this meeting, which contained false and defamatory information. This evaluation was sent via e-mail to Plaintiff, Savant, Fouchie, and Smith, among others.
Following the training session in Chicago, Fouchie accompanied Plaintiff on his sales rounds. On March 19, 2009, Fouchie sent a report to Plaintiff falsely claiming Plaintiff acted unprofessionally towards the doctors and medical staff and failed to accurately convey information about the drugs he was promoting. Later that day, Plaintiff received a call from Savant, who informed him that he must travel to New Jersey on March 23, 2009, to recertify on Uloric, and, if he failed to successfully recertify, his employment would be terminated. Savant also informed Plaintiff that Fouchie would present him with a “Warning Letter” the following day outlining these false facts.
Following the convеrsation with Savant, Plaintiff contacted Smith regarding Fouchie’s report and the upcoming March 23,2009, recertification. Smith failed to assist him and instead repeated and supported the other Defendants’ defamatory statements.
Given Smith would not help Plaintiff and after Smith failed to answer numerous calls, Plaintiff submitted a written request by e-mail that the
On March 23,2009, Plaintiff traveled to New Jersey for recertification. Plaintiff contends that the events of that day are further proof of a conspiracy to discredit him in his profession. Although Smith had assured Plaintiff that a third party would be presеnt and an unbiased manager would administer the test, a third party was not present during the recertification test. Moreover, the regional manager administering the test came out of Savant’s office just prior to conducting the test. Nevertheless, Plaintiff passed this recertification.
On March 25, 2009, Plaintiff spoke with Smith for approximately two hours regarding his concerns about the recertification in New Jersey and the recertification in Illinois conducted by Flood. He also detailed the harassment by Fouchie and Savant. Approximately six weeks later, Smith contacted Plaintiff and informed him she had concluded her investigation and found no wrongdoing. Plaintiff alleges Smith’s investigation was an effort to cover up the inappropriate actions of her co-conspirators.
In May 2009, Smith informed Plaintiff that Takeda would not reimburse him $4,300 in tuition expenses for thе semester he completed in April 2009. Smith stated that, since Plaintiff had received a warning letter from his managers, he was ineligible for this company benefit. Plaintiff was denied another tuition reimbursement for the semester ending in July 2009, resulting in another $4,300 loss.
In June 2009, Plaintiff’s attorney contacted Takeda’s legal department to complain about his treatment, and Plaintiff was subsequently transferred from Fouchie’s district to another district manager, Defendant Michael Venanzi. Although Plaintiff had previously worked directly under Venanzi and the two had a positive working relationship, Venanzi now continued Fouchie and Savant’s campaign of harassment. Specifically, Venanzi submitted false field reports concerning Plaintiff’s knowledge of Takeda products and a performance evaluation that did not accurately reflect his work.
On August 9,2009, Plaintiff received his annual pеrformance evaluation from Venanzi. Plaintiff received extremely low marks on this evaluation despite receiving a high company ranking in sales volume during the relevant period. The evaluation comments detailing deficiencies in his performance were also false. Plaintiff’s current manager, Noelle Breuker expressed genuine surprise at the content of the evaluation, indicating this was not her experience with Plaintiff and offering to assist Plaintiff if he wished to contest the contents of the evaluation.
Plaintiff thereafter filed the instant suit against, among others, Savant, Smith, and Flood. Plaintiff’s claims relating to these particular Defendants
Analysis
The question of personal jurisdiction is “one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for personal jurisdiction.” Combs v. Bakker,
The determination of whether personal jurisdiction exists over a nonresident defendant is a two-step inquiry. Bergaust v. Flaherty,
Virginia’s Long-Arm Statute
Virginia’s long-arm statute provides the bounds of this Court’s jurisdiction to hear cases involving nonresident defendants. Va. Code Ann. § 8.01-328.1 (2011). The statute enumerates ten categories of “contacts” which confer jurisdiction on a nonresident. In this case, Plaintiff specifically alleges jurisdiction over Savant, Smith, and Flood based on sections (A) (l)-(4), which read:
A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:
1. Transacting any business in this Commonwealth;
2. Contracting to supply services or things in this Commonwealth;
3. Causing tortious injury by an act or omission in this Commonwealth;
4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course*221 of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth.
Va. Code Ann. § 8.01-328.1(A) (2011).
The Virginia Supreme Court has interpreted this to be a “single act” statute “requiring only one transaction in Virginia to confer jurisdiction on its courts.” John G. Kolbe, Inc. v. Chromodern Chair Co.,
Due Process Clause
The Due Process clause of the Fourteenth Amendment limits the power of a state to exercise personal jurisdiction over a nonresident. Helicopteros Nacionales de Colombia, S. A. v. Hall,
Plaintiff alleges that jurisdiction is valid against Savant, Smith, and Flood under Virginia Long-Arm Statute sections (A)(1)-(4) and that due process is not offended by exercising personal jurisdiction over them. Because this Court must find personal jurisdiction for all parties to a suit, the analysis below will apply the two-prong test towards each of these Defendants.
Defendant Savant
Plaintiff alleges personal jurisdiction exists as to Savant under Va. Code § 8.01-328.1(A)(1). Plaintiff argues that Savant’s actions as Regional Sales
While no case has specifically addressed the precise facts arising in this case, the fundamental principles of the law are well settled. The Virginia Supreme Court has stated that the “manifest purpose” of section (A)(1) of the Virginia long-arm statute is “to assert jurisdiction over non-residents who engage in some purposeful activity in [Virginia] to the extent possible under the due process clause.” Raymond, Colesar, Glaspy & Huss, PC. v. Allied Capital Corp.,
Furthermore, (A)(1) has been interpreted as a single act provision. See English & Smith v. Metzger,
Savant’s position as Regional Sales Manager included responsibility over Fouchie, the district manager located in Virginia, along with multiple sales territories in Virginia. Savant routinely directed Fouchie, a Virginia resident, through e-mails and phone calls with regards to action taken towards Plaintiff. Moreover, Savant communicated directly with Plaintiff in Virginia on several occasions. More importantly, on at least one occasion, Savant traveled to Virginia to conduct a ride along with Plaintiff. The puipose of the ride along was to observe Plaintiff on-site, and, during the ride along, Savant was physically present in Virginia. Afterwards, Savant detailed his observations in a report, which he sent to Plaintiff in Virginia. Savant followed this written report with phone calls to Plaintiff discussing the ride along. Based upon these actions, we hold that Savant was transacting business in Virginia within the meaning of section (A)(1).
As to the second prong of the analysis, whether the exercise of personal jurisdiction over Savant comports with the Due Process clause, because section (A)(1) has been construed to extend to the limits of the Due Process clause, contacts sufficient under the long-arm statute necessarily satisfy due process as well. See Indus. Carbon v. Equity Auto & Equip. Leasing Corp.,
While the Court is satisfied that Savant transacted business in Virginia sufficient to confer jurisdiction, in order to comport with section (A)(1), Plaintiff’s cause of action must also arise from those business contacts. See City of Va. Beach v. Roanoke River Basin Ass’n,
While personal jurisdiction is limited to causes of action “arising from” the business transactions in the forum state, courts have broadly construed this provision to include acts related to, but not directly the cause of, the alleged claims. See Production Group Int’l v. Goldman,
In the instant case, Plaintiff alleges Savant defamed him through his ride along report. The report was directly based on events taking place in Virginia and with which Savant was personally involved. Savant wrote the report as Plaintiff’s supervisor, and this defamatory report was one instance in a series of attempts by Savant and his co-conspirators to create a false paper trail to harm Plaintiff’s business interests in Virginia. The Court finds that Plaintiff’s claim for defamation sufficiently arises from Savant’s contacts with Virginia to satisfy section (A)(1).
Savant, however, сontends that all his actions relevant to the Complaint were performed on behalf of Takeda in his role as an agent and officer, of Takeda and thus cannot be used to establish personal jurisdiction over him personally. Specifically, Savant maintains that, when a nonresident officer commits a tort outside of the forum state, his contacts with the forum state through his employer are not applicable to the jurisdictional analysis.
Although Savant argues otherwise, it appears that a defendant who commits a tort may not use his employer as a protective shield against the reach of the law. The United States Court of Appeals for the Fourth Circuit addressed this issue in Columbia Briargate Co. v. First Nat’l Bank,
This Court more recently addressed this issue in Cordova v. Alper,
Similarly, the United States Supreme Court has recognized that an employee’s acts on behalf of an employer can establish personal jurisdiction over the employee. In Calder v. Jones, the Supreme Court found jurisdiction over a Florida writer and editor who produced an article defaming a famous actress in California.
Petitioners are correct that their contacts with California are not to be judged according to their employer’s activities there. On the other hand, their status as employees does not*225 somehow insulate them from jurisdiction. Each defendant’s contacts with the forum State must be assessed individually.
Id. (emphasis added).
Savant further argues that any connection he may have had with the torts alleged by Plaintiff occurred without Virginia, and thus, under Columbia Briargate, the assertion of jurisdiction over his person is contrary to the Fourteenth Amendment. This argument specifically relies on the following language contained in Columbia Briargate:
[I]f the claim against the corporate agent rests on nothing more than that he is an officer or employee of the non-resident corporation and if any connection he had with the commission of the tort occurred without the forum state, we agree that, under sound due process principles, the nexus between the corporate agent and the forum state is too tenuous to support jurisdiction over the agent personally by reason of service under the long-arm statute of the forum state.
Columbia Briargate,
The Court finds this argument meritless. Plaintiff’s assertion of jurisdiction over Savant does not rest solely on his status as an officer of Takeda. Instead, the facts indicate that Savant had significant contacts with Virginia during the commission of the torts alleged. Savant personally visited Virginia in the course of his business, and he committed torts related to his contact with Virginia, which were specifically aimed at a Virginia resident. Accordingly, the Court is satisfied that the nexus between Savant and the Commonwealth of Virginia is sufficient to support personal jurisdiction over him. .
Here, Savant’s connection to Virginia is not based solely on the fact that he works for a corporation subject to jurisdiction in Virginia. Savant has actual contacts with Virginia. He personally made frequent e-mails and telephone calls to Virginia and directed subordinates located in Virginia. He personally visited Virginia in the course of his business. Moreover, he committed torts specifically aimed at a Virginia resident that are related to his contact with Virginia. In short, the Court finds that Savant’s individual contacts with Virginia are sufficient to subject him to the power of this Court.
Although the Court has found jurisdiction under Va. Code § 8.01-328.1(A)(1), the Court is also satisfied that Savant is subject to personal jurisdiction pursuant to Va. Code § 8.01-328.1(A)(3) and (A)(4). Under the conspiracy theory of personal jurisdiction, discussed supra, Savant has committed a tort in Virginia which allows jurisdiction under (A)(3). Moreover, Savаnt’s additional contacts with Virginia amount to regularly
Defendants Flood and Smith
Flood and Smith are both nonresidents who are not alleged to have been present in Virginia at any time relevant to this suit. Moreover, each has similar contacts with Virginia. Therefore, the court will jointly discuss Flood and Smith and whether this Court has personal jurisdiction over either.
Va. Code § 8.01-328.1(A)(1) and (A)(2)
Plaintiff claims that Flood and Smith are both subject to personal jurisdiction pursuant to Va. Code § 8.01-328.1(A)(1) and (A)(2). Plaintiff, however, has failed to allege sufficient facts to establish that either Flood or Smith transacted business in Virginia. Flood sent a few e-mails to Fouchie, who lived in Virginiа. Smith e-mailed both Fouchie and Plaintiff and, on a number of occasions, called Plaintiff in Virginia. However, the law is well settled that mere e-mails and telephone calls directed at Virginia do not amount to transacting business in Virginia. See, e.g., Superfos Invest., Ltd. v. Firstmiss Fertilizer, Inc.,
Moreover, Plaintiff failed to allege that Flood or Smith entered into a contract to supply services or things in Virginia, as is required under Va. Code § 8.01-328.1(A)(2). Accordingly, there is no basis for jurisdiction over Flood or Smith under Va. Code § 8.01-328.1(A)(1) or (A)(2).
Va. Code § 8.01-328.1(A)(3)
Plaintiff next contends that personal jurisdiction exists against Flood and Smith under Va. Code § 8.01-328.1(A)(3). In order to find jurisdiction
At this stage, it appears Plaintiff has alleged defamation and tortious interference
Plaintiff has also alleged a claim of defamation against Smith. Smith repeated the defamatory remarks made by Flood over the phone and through e-mail messages to Plaintiff and others. Moreover, Smith reiterated these statements knowing them to be false. Finally, Smith failed to adequately investigate the complaint made by Plaintiff and used her own report as a means of covering up her colleagues’ wrongdoing.
Sincе Plaintiff has alleged tortious injury in Virginia, the question thus becomes whether a person outside of Virginia who sends a defamatory e-mail or telephone call to a person living in Virginia is an act “within the Commonwealth” as required under Va. Code § 8.01-328.1(A)(3).
Although the Virginia Supreme Court has not addressed this specific issue, courts interpreting this subsection have held that, when a nonresident writes a defamatory letter outside the forum state and mails it into the forum, he does not commit a “tortious act” within the forum as required. St. Clair v. Righter,
In St. Claire v. Righter, the United States District Court for the Western District of Virginia found that a defamatory letter sent to Virginia from outside the state did not establish personal jurisdiction over the defendant under Va. Code § 8.01-328.1(A)(3).
The notion that the “tortious act” occurs where a defamatory message is written and communicated has been reaffirmed during the internet age. In Bochan v. La Fontaine, the United States District Court of the Eastern District of Virginia addressed the issue of whether defamatory remarks posted on the internet constitute a tortious act in Virginia under Va. Code § 8.01-328.1(A)(3).
Under this analysis, neither Flood nor Smith committed acts within Virginia. Both wrote their defamatory e-mails in Illinois and sent the e-mails to Virginia from Illinois. Plaintiff does not allege, nor does the record supрort, that the e-mails were sent through a service provider present in Virginia. Smith also made defamatory calls to Virginia. But the analysis is identical to that used for written communications, and it compels the same conclusion. Moreover, neither Defendant completed any other acts in Virginia. Thus, the Court finds that there is insufficient factual basis to establish personal jurisdiction over Flood or Smith pursuant to Va. Code § 8.01-328.1(A)(3).
Va. Code § 8.01-328.1(A)(4)
Plaintiff next contends that personal jurisdiction is established over Flood and Smith pursuant to Va. Code § 8.01-328.1(A)(4). The United
First, a court must determine whether the defendant caused tortious injury in Virginia by an act or omission outside this Commonwealth. Second, the court must evaluate whether “a relationship between the defendant and the state which exists in any one of the three ways specified in subsection (4).” A court must therefore inquire into whether the defendant (1) regularly does or solicits business, (2) engages in any other ' persistent course of conduct, or (3) derives substantial revenue from goods used or consumed or services rendered in the Commonwealth of Virginia.
Roanoke Cement Co., L.L.C. v. Chesapeake Prods., Inc., 2:07cv97, 2007 U.S. Dist. lexis 50935, at *23-24 (E.D. Va. July 13, 2007) (citations omitted).
Plaintiff has clearly shown facts that satisfy the first part of (A)(4), an act or omission outside Virginia causing tortious injury in this state. Plaintiff has alleged that both Smith and Flood sent defamatory statements into Virginia. Since e-mailing a defamatory statement is an act outside the Commonwealth when it is not communicated over a server located in Virginia, as is the case here, see First Am. First, Inc. v. National Assoc, of Bank Women,
The second requirement of (A)(4) necessitates persistent contacts with the forum state, substantial revenue from the forum state, or regular business in the forum state. See, e.g., First Am. First, Inc.,
It is clear that neither Flood nor Smith derived substantial revenue from goods used or consumed or services rendered in Virginia. Indeed, Plaintiff has failed to allege any facts indicating these types of contacts. Thus, the only remaining inquiry is whether Flood or Smith engaged in any persistent course of conduct in Virginia or regularly conducted business in Virginia to satisfy the second requirement of (A)(4).
The case Robinson v. Egnor, is instructive.
On the other end of the spectrum, the court in Micropicture Int’l, Inc. v. Kickartz, found a рersistent course of conduct lacking based on seven e-mails and one letter sent to Virginia. 3:05-cv-00034, 2006 U.S. Dist. lexis 3714, at *8-10 (W.D. Va. Jan. 17, 2006). Specifically, the court noted that five e-mails sent in July of 2007 and two in December of 2007 was “a frequency more sporadic than persistent or ongoing.” Id.
From these cases, it is clear that Flood’s contacts do not constitute “doing business” or a “persistent course of conduct” under (A)(4). Unlike the defendant in Robinson, there is no allegation that Flood traveled to Virginia or contacted Virginia regularly in the course of his employment. Flood’s contacts with Virginia stem solely from the recertification episode in Chicago and amount, at most, to a few e-mails sent to Fouchie in Virginia around the time of the recertification. Thus, we find it impossible to characterize Flood’s contacts as persistent, continuous, or ongoing.
Smith’s сontacts necessitate the same conclusion. Her contacts with Virginia were also limited to the short time frame of the events surrounding Plaintiff’s complaint. While Smith made several more phone calls to Virginia than Flood, the number does not rise to the level of persistent, continuous, or ongoing contact with Virginia.
Accordingly, the Court finds that there is no jurisdictional basis against Smith or Flood under Va. Code § 8.01328.1(A)(4).
Conspiracy Theory of Jurisdiction
Although the Court has concluded that personal jurisdiction is not permitted over defendants Flood and Smith based on each defendant’s individual contacts with the forum state, there exists another basis for jurisdiction. Courts have recently recognized that personal jurisdiction may, in some circumstances, be based upon the acts or contacts of a co-conspirator. See Verizon Online Servs., Inc. v. Ralsky,
Courts acknowledging the conspiracy theory of jurisdiction seem to recognize that a defendant who joins a conspiracy knowing that acts in furtherance of the conspiracy have taken or will take place in the forum state is subject to personal jurisdiction in that forum because the defendant has purposefully availed himself of the privileges of that state and should reasonably expect to be haled into court there. Noble Sec., Inc.,
In the instant case, Plaintiff has alleged a conspiracy between Flood, Smith, Venanzi, Savant, and Fouchie. Accordingly, under the conspiracy theory of jurisdiction, Flood and Smith could be subject to jurisdiction based on the acts of Venanzi, Savant, or Fouchie that occurred in Virginia in furtherance of the conspiracy. The underlying torts of Plaintiff’s conspiracy claim are defamation and tortious interference. Thus, if Savant, Venanzi, or Fouchie committed acts in furtherance of these torts in Virginia, jurisdiction could lie agаinst Flood or Smith as co-conspirators.
Plaintiff has sufficiently alleged that acts in furtherance of both torts occurred in Virginia. Fouchie’s March 19, 2009, report detailing Plaintiff’s performance contained false and defamatory statements. Fouchie composed these reports in Virginia and published them to other members of the conspiracy as well as other employees outside of Virginia. This Court has already determined that under Virginia law the act of defamation occurs where the statement was written and communicated. Plaintiff also alleges these reports were made in furtherance of a conspiracy to create a documented history of false underperformance in order to harm Plaintiff’s reputation and career prospects at Takeda. Smith and Flood knew or should have known that thesе acts would be committed in Virginia. Moreover, the record is clear that the remaining co-conspirators also committed acts in Virginia in furtherance of the conspiracy that Smith and Flood knew or should have known about. Thus, the Court is satisfied that the alleged
Furthermore, the Court finds it does not offend due process to impute these acts to Flood and Smith. Fouchie and the other co-conspirators had significant contacts with Virginia, and the alleged conspiracy was aimed at a Virginia resident. A co-conspirator could “reasonably expec[t] to be haled into court where their [conspiratorial acts] inflicted the greatest harm.” Verizon,
Smith and Flood, however, contend that Plaintiff has not alleged sufficient facts to establish a conspiracy, and thus jurisdiction should not be asserted on this theory. Smith and Flood are incorrect. To properly assert a conspiracy claim, the plaintiff must “make a threshold showing . . . that a conspiracy existed and that the defendants participated therein.” St. Paul Fire & Marine Ins. Co. v. Hoskins, 5:10cv00087, 2011 U.S. Dist. lexis 53321, at *9 (W.D. Va. May 18, 2011) (quoting McLaughlin v. McPhail,
Finally, Smith and Flood maintain that Plaintiff has failed to allege a conspiracy due to the intra-corporate immunity doctrine. The intra-corporate immunity doctrine holds that employees of a corporation cannot be found to conspire with one another when they are acting within the scope of their employment because they are сonsidered one entity, the corporation. E.g., Fox v. Deese,
Smith and Flood are incorrect that Plaintiffhas not alleged facts to support the contention that Defendants acted outside the scope of their employment.
Conclusion
For the reasons set forth above, the Court finds that it has authority to exercise personal jurisdiction over Defendants Savant, Flood, and Smith. Accordingly, Defendants’ motion is denied.
Notes
In Virginia, tortious interference consists of the following elements: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing the breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Century-21 v. Elder,