$350K jury verdict upheld

A jury’s $350,000 verdict in a breach of contract case was upheld after the Court of Appeals of Virginia found no error in the trial court’s decision.

On appeal, the plaintiff assigned error to the Virginia Beach Circuit Court’s entry of judgment on the verdict, its decision to award attorney’s fees against him and the $350,000 damages award assessed against him.

But Judge Clifford L. Athey Jr. pointed out that the award was consistent with the jury instructions, to which the plaintiff did not object.

Athey’s opinion is Boyd v. Weisberg (VLW 022-7-516).

Background

The case stems from a 2011 agent agreement between Constance Weisberg and To Charge Virginia, whose sole and managing member was William A. Boyd.

Under the agreement, Weisberg “contracted to solicit potential purchasers of To Charge Virginia’s credit card processing services,” with the agreement that Weisberg would receive a 50% commission on accounts she secured for To Charge Virginia.

Weisberg claimed her commission checks didn’t match the proper amount earned and asked that Boyd allow her to “review the residual reports detailing the activity on the accounts she had secured and the corresponding commission due therefrom.”

Boyd denied Weisberg’s requests and “refused to explain why she was not being paid the proper amount of residual commission pursuant to the Agreement.” In September 2013, Boyd sought to terminate the agreement, alleging Weisberg violated the agreement’s confidentiality provisions.

Weisberg notified To Charge Virginia of her intent to file suit in February 2014. Four days later, Boyd formed To Charge Nevada, a limited liability company, and transferred To Charge Virginia’s assets, contracts for services, independent contractor agreements, customer accounts and goodwill to To Charge Nevada for $10. The move left To Charge Virginia insolvent.

Weisberg filed suit in May 2014 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.

In February 2018, during the pendency of the litigation, Boyd dissolved To Charge Nevada. The next month, he executed an asset purchase agreement that “purported to sell all of To Charge Nevada’s assets” to VeriPay, LLC for $10.

Per the opinion, VeriPay did not exist on the day of the transfer, and To Charge Nevada was “apparently resurrected” several months later and renamed to VeriPay.

At trial, Weisberg said Boyd “fraudulently conveyed” the assets of To Charge Virginia to To Charge Nevada, then transferred to the renamed VeriPay “to hide the assets of To Charge Virginia because of their pending litigation.” She also alleged breach of contract by To Charge Virginia.

Boyd sought to strike the claims, which the trial court denied. The trial court then issued jury instructions and a jury form, which were agreed to by both parties.

Following deliberations, the jury found in favor of Weisberg, awarding $350,000 on the conveyance claims and $225,445.88 on the breach of contract claim. The trial concluded on June 17, 2021.

Boyd later moved for judgment notwithstanding the verdict and, for the first time, challenged the jury instructions and verdict form. The trial court denied the motions and awarded Weisberg $149,041.90 in attorney fees.

Boyd appealed, arguing issues with the jury instructions and verdict form.

Appeal

Boyd argued the jury verdict was “plainly wrong” because his sole involvement in the asset transfer was as a corporate representative. Further, he claimed the trial court erred by not setting aside the jury’s verdict since Weisberg’s previous attempt to pierce the corporate veil was withdrawn.

The appellate judge disagreed.

“Here, Boyd ‘expressly agreed to jury instructions that omitted the very legal principle on which [he] seeks to rely on appeal,’” Athey wrote. “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.”

Athey added that jury instructions agreed to by both parties “become the law of the case.”

“No jury instruction was submitted to the trial court by Boyd or agreed upon by the parties that instructed the jury on the legal concepts Boyd now argues on appeal,” he explained.

Next, the judge noted that, based on the instructions and the verdict form, “there was more than enough evidence to support the jury’s verdict.”

A piece of evidence the judge focused on was the transfer of assets across companies, including to VeriPay, which “did not even exist at the time of the conveyance.”

“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,” Athey wrote.

Boyd’s second assignment of error, which argued that the trial court erred in assessing attorney fees against Boyd because limited liability companies “are legal entities that are entirely distinct from the members who compose them,” was also rejected by the appeals court.

Per Virginia Code § 55.1-403, courts may assess attorney fees “against all parties over which it has jurisdiction who, with the intent to defraud and having knowledge of the judgment, participated in the conveyance.”

While the statute does not define “participate,” Athey said the court understands it as meaning “to take part or share in something.”

“Contrary to Boyd’s argument, it does not specify in what capacity the parties must participate,” he wrote. “Since he acknowledges participating, the trial court did not err by assessing attorney fees against him.”

Boyd’s final assignment of error claimed the trial court erred in assessing damages against him and that the evidence was insufficient to reasonably estimate Weisberg’s damages.

Again, Athey disagreed, noting that the appellant can’t raise an issue with the verdict form for the first time on appeal after the jury is discharged.

“Had Boyd wanted to object to the phrasing of the verdict form or the imposition of damages against him, he should not have agreed to the verdict form,” the judge said.

Having disagreed with Boyd’s assignments of error, Athey affirmed the decision from the Virginia Beach Circuit Court.

Attorney comments

Virginia Beach attorney Kevin Martingayle, who represented Weisberg, said the opinion emphasizes the importance of timeliness.

“This opinion highlights the importance of giving trial judges every opportunity to consider arguments in a timely manner,” Martingayle said in an email to Virginia Lawyers Weekly. “The failure to do so will be deemed waiver.”

Martingayle continued, “When a litigant raises objections and makes arguments for the first time after a trial is completed, it’s almost always going to be considered too late.”

Fairfax attorney Juli M. Porto, who represented Boyd, told Virginia Lawyers Weekly that a petition for a rehearing en banc was filed on Nov. 29.