Virginia Lawyers Weekly VA Lawyers Weekly
A jury’s $350,000 verdict for damages arising from appellant’s fraudulent conveyance of assets in this breach of contract case is upheld.
The award was consistent with the jury instructions, to which appellant did not object.
Overview
The contract between Boyd, the appellant and sole owner of Charge Virginia, LLC, and Weisberg, the appellee, provided that Weisberg would receive a 50 percent commission on accounts that she secured for Charge Virginia.
Weisberg alleged that her commission checks “failed to accurately reflect the proper amount of monthly commission earned pursuant to the Agreement.” She contacted Boyd by phone, email and in person, asking “to review the residual reports detailing the activity on the accounts she had secured and the corresponding commission due therefrom.”
Boyd denied the request and claimed that Weisberg breached the contract by violating confidentiality clauses. Four days later, Boyd formed Charge To Nevada and transferred Charge To Virginia’s assets to it for $10, leaving Charge To Virginia insolvent.
Weisberg responded with a suit for fraudulent conveyance, voluntary conveyance, and breach of contract. She sought $350,000 in damages for the conveyance claims and $150,000 for breach of contract.
During litigation, Boyd dissolved Charge To Nevada and transferred its assets to VeriPay, LLC for $10. VeriPay did not exist on the date of the transfer. Several months later, “Boyd apparently resurrected the previously dissolved To Charge Nevada and renamed the business VeriPay.”
At trial, the court denied defense motions to strike. The court issued jury instructions and a verdict form. Boyd did not object. The jury awarded $350,000 on the conveyance claims and $225,445.88 for breach of contract.
Boyd moved for judgment notwithstanding the verdict, and for the first time, challenged the jury instructions and the verdict form. The court denied both motions and awarded Weisberg $149,041.90 for attorney fees.
On appeal, Boyd raises, among others, issues with the jury instructions and the verdict form.
Instructions
“Boyd argues that the jury’s verdict is plainly wrong because his only involvement in the asset transfer between To Charge Virginia and To Charge Nevada was as the limited liability companies’ corporate representative.
“Boyd claims that, although he agreed to the jury instructions and verdict form, the trial court erred by not setting aside the jury’s verdict since Weisberg previously withdrew her attempt to pierce the corporate veil. We disagree. …
“Boyd ‘expressly agreed to jury instructions that omitted the very legal principle on which [he] seeks to rely on appeal.’ … On appeal, he argues that the instructions improperly imposed personal liability. However, he cannot contest the phrasing of the instructions and verdict form after agreeing to them. …
“Since jury instructions and verdict forms agreed to by both parties become the law of the case, ‘we consider whether the evidence was sufficient to support [the judgment] based upon the instructions given.’ …
“[T]here was more than enough evidence to support the jury’s verdict based on the instructions and applicable verdict form.
“After Boyd contracted with Weisberg, he received a letter notifying him that he and his first company (To Charge Virginia) were being sued by Weisberg for breach of contract. Boyd then created a second company (To Charge Nevada), and transferred all To Charge Virginia’s assets to this newly formed Nevada company.
“During the pendency of the lawsuit, Boyd dissolved To Charge Nevada and later attempted to transfer its assets to a third company (VeriPay) that did not even exist at the time of the conveyance. He then somehow ‘resurrected’ the dissolved To Charge Nevada and renamed it VeriPay.
“The evidence of these multiple transactions is sufficient to support the finding by the jury that Boyd transferred the assets of the limited liability companies he controlled with the intent to defraud Weisberg.”
Attorney fees
“Boyd argues that because limited liability companies are legal entities that are entirely distinct from the members who compose them, when he signed the asset transfer documents as a managing member, he did not ‘participate’ in the fraudulent conveyance. We disagree. …
“[W]e understand ‘participate’ as meaning ‘to take part or share in something.’ Notably, the statute [Code § 55.1-403] gives the trial court authority to assess attorney fees against all parties who participated in the conveyance.
“Contrary to Boyd’s argument, it does not specify in what capacity the parties must participate. Since Boyd participated in the fraudulent conveyance between To Charge Virginia and To Charge Nevada, whether he participated as the managing member of To Charge LLC or in his personal capacity is irrelevant in this case.
“Since he acknowledges participating, the trial court did not err by assessing attorney fees against him.”
Verdict form
“Boyd argues that the trial court erred in assessing damages against him and that the evidence was insufficient to permit the jury to reasonably estimate Weisberg’s damages.
“However, since Boyd failed to object before the jury rendered its verdict, but instead agreed to the verdict form that permitted a damages award on the fraudulent conveyance claim, we disagree. …
“When a verdict form is not questioned until sometime after the jury is discharged, the appellant cannot complain of the defect on appeal.”
Affirmed.
Boyd v. Weisberg, Record No. 0029-22-1, Nov. 15, 2022. CAV (Athey Jr.). From the Circuit Court of the City of Virginia Beach (Mahan) Juli M. Porto for appellant. Kevin E. Martingayle for appellee. VLW 022-7-516, 14 pp.
