Boyd v. Weisberg

• Decision Date: 15 November 2022
• Docket Number: Record No. 0029-22-1
• Parties: William Adam BOYD v. Constance WEISBERG
• Court: Virginia Court of Appeals

75 Va.App. 725

879 S.E.2d 613

William Adam BOYD

v.Constance WEISBERG

Record No. 0029-22-1

Court of Appeals of Virginia, Virginia Beach.

November 15, 2022

Juli M. Porto (Blankingship & Keith, P.C., on briefs), Fairfax, for appellant.

Kevin E. Martingayle, Virginia Beach, (Herbert V. Kelly ; Bischoff Martingayle, P.C.; Jones, Blechman, Woltz & Kelly, P.C., on brief), Newport News, for appellee.

Present: Judges Humphreys, Athey and Callins

OPINION BY JUDGE CLIFFORD L. ATHEY, JR.

William Adam Boyd ("Boyd") appeals from a jury verdict in the Circuit Court of the City of Virginia Beach ("trial court"). Boyd assigns error to the trial court's entry of judgment on the jury's verdict. He also assigns error to the trial court's decision to award attorney fees against him. Finally, he assigns error to the jury's $350,000 damages award assessed against him. Finding no error, we affirm the decision of the trial court.

I. BACKGROUND

In June 2011, Constance Weisberg ("Weisberg") executed an Agent Agreement ("Agreement") with To Charge, LLC ("To Charge Virginia"). Pursuant to the terms of the Agreement, Weisberg contracted to solicit potential purchasers of To Charge Virginia's credit card processing services. As consideration for the successful solicitation of an account, To Charge Virginia agreed to pay Weisberg a monthly residual commission of "fifty percent (50%) of the Gross Processing Revenue" for each account she successfully solicited while the account remained active. Shortly after Weisberg began securing accounts on behalf of To Charge Virginia, she received commission checks that she contended failed to accurately reflect the proper amount of monthly commission earned pursuant to the Agreement.

First, by phone in 2011 and 2012, and then by email in 2013, Weisberg requested that Boyd, who was the sole and managing member of To Charge Virginia, permit her to review the residual reports detailing the activity on the accounts she had secured and the corresponding commission due therefrom. Since her repeated requests by phone and email were unsuccessful, in August of 2013, she met with Boyd to make her request in person. During that meeting, Boyd denied her request to review the residual reports and refused to explain why she was not being paid the proper amount of residual commission pursuant to the Agreement. Subsequently, by letter dated September 25, 2013, Boyd sought to terminate the Agreement based on his allegation that Weisberg had breached the Agreement by violating its confidentiality provisions.

As a result, by letter dated February 10, 2014, Weisberg, through counsel, notified To Charge Virginia that she intended to file suit to recover the unpaid commission and further demanded that Boyd produce the previously requested residual reports.¹ Four days later, on February 14, 2014, Boyd organized a Nevada limited liability company, ToCharge, LLC ("To Charge Nevada"), which he also managed as the sole member. Later that same day, To Charge Virginia transferred all its assets, contracts for services, independent contractor agreements, customer accounts, and goodwill to To Charge Nevada for the sum of $10. Following the transfer of all its assets, To Charge Virginia became insolvent.

Weisberg filed suit on May 27, 2014. Her final complaint² included, in relevant part, counts for fraudulent conveyance, voluntary conveyance, and breach of contract. For the fraudulent conveyance and voluntary conveyance claims, she sought "judgment against To Charge Virginia, To Charge Nevada, Boyd, and VeriPay jointly and severally" in the amount of up to $350,000, "together with her costs and expenses, including attorney fees pursuant to Virginia Code § 55-82.1." In her breach of contract claim, Weisberg alleged that she had also been "damaged in the approximate amount of $150,000" and only sought "judgment against To Charge Virginia in the amount of [$350,000]."³

Almost four years later during the pendency of the litigation, on February 13, 2018, Boyd dissolved To Charge Nevada. ⁴

Boyd then executed an Asset Purchase Agreement, dated March 30, 2018, that purported to sell all of To Charge Nevada's assets, contracts for services, independent contractor agreements, customer accounts, and goodwill to VeriPay, LLC ("VeriPay") for $10. However, VeriPay did not exist on the date of that transfer. Finally, on June 14, 2018, Boyd apparently resurrected the previously dissolved To Charge Nevada and renamed the business VeriPay.⁵

During the jury trial, Weisberg testified that To Charge Virginia breached their Agreement and Boyd fraudulently conveyed all the assets of To Charge Virginia, to To Charge Nevada, then to the renamed VeriPay to hide the assets of To Charge Virginia because of their pending litigation. Weisberg originally sought to pierce the corporate veil, but later withdrew that argument. At the conclusion of Weisberg's case in chief, the corporate entities moved to strike Weisberg's breach of contract claim, and Boyd moved to strike the fraudulent conveyance and voluntary conveyance claims. Counsel for all the defendants contended that Weisberg had the burden of proving that she did not violate the Agreement and that she had not met that burden. Boyd also contended that Weisberg was not a "creditor" as required under the fraudulent or voluntary conveyance statutes. Finally, he argued that with respect to her various claims for damages in general, Weisberg had not proved her damages to a reasonable degree of certainty. The trial court denied the motions to strike. Following the conclusion of all the evidence, the motions to strike were renewed but the trial court again denied the motion. The trial court then reviewed the jury instructions and verdict form presented by the parties. Both Weisberg and Boyd agreed to the following instructions and verdict form given by the trial court prior to the closing statements:

Jury Instruction 27:

"Every assignment or transfer of property given with the intent to delay, hinder or defraud creditors, as to such creditor is void. Such transfers are considered as a fraudulent conveyance."

Jury Instruction 30:

If you find that [Weisberg] proved badges of fraud, by clear and convincing evidence, when the assets of [To Charge Virginia], [were] assigned to [To Charge Nevada], a prima facia case of a fraudulent conveyance has been made and [Weisberg] is entitled to a presumption that the conveyance was in fact fraudulent. Unless William Adam Boyd disproves the fraud, by clear and convincing evidence, you shall find that the conveyance was fraudulent.

Verdict Form:

We, the jury, having found that the contract was breached, further find that the transfer by William Adam Boyd of the assets of [To Charge Virginia] to [To Charge Nevada] was made with the intent to hinder, delay and defraud the plaintiff and assess damages against William Adam Boyd in the sum of $______.

OR

We, the jury, find that the conveyance was not made with the intent to

hinder, delay or defraud [Weisberg].

We, the jury, on the issues joined, find in favor of [Weisberg] on the breach of contract claim and assess damages in the sum of $______ against ______.⁶

OR

We, the jury, on the issues joined, find in favor of the defendants.

The jury instructions were read to the jury prior to closing arguments and provided in writing for their consideration during deliberations. During closing argument, Weisberg's counsel argued that

[I]f you find that the evidence demonstrates that [the transfer] was fraudulent and done with the intent to hinder, delay, and defraud Ms. Weisberg, then you're entitled to render a verdict against Mr. Boyd personally because of his fraudulent acts, and you would be entitled to put a number on the penalty that you will impose upon Mr. Boyd for his actions. That number is clearly within your province. I will only give you some guidance and tell you that the complaint filed in this court seeks damages of $350,000 for what is absolutely atrocious conduct committed to defraud Ms. Weisberg from her commissions. I would just ask you not to exceed that amount. You can award zero. You can award $350,000. You can award anywhere in between. I think the $350,000 is more appropriate given the aggravated circumstances in this case.

At no point during Weisberg's closing argument did Boyd object to Weisberg's argument either as to form or substance. In fact, Boyd's counsel specifically referenced the verdict form and argued that the jury should not award damages against Boyd personally, stating, "[w]hen you get to the jury room, you will see this verdict form. There will be two pages. I submit the second page is irrelevant."

After the closing arguments, the trial court briefly explained to the jury their task in completing the verdict form by stating

If you find that [Weisberg] has established the fraudulent conveyance as set forth in the instructions and in the verdict slip here, then the amount of damages, if any, that you determine are appropriate to award against [Boyd] for that fraudulent conveyance would be filled in in that blank, and your foreperson would sign and date it once again.

Boyd again failed to object to either the form or substance of the jury instructions or potential damages outlined in the verdict form. After their deliberations, the jury found for Weisberg and awarded damages by completing the verdict form as follows:

We, the jury, having found that the contract was breached, further find that the transfer by William Adam Boyd of the assets of [To Charge Virginia] to [To Charge Nevada] was made with the intent to hinder, delay and defraud the plaintiff and assess damages against William Adam Boyd in the sum of $350,000.

We, the jury, on the issues joined, find in favor of [Weisberg] on the breach of contract claim and assess damages in the sum of $225,445.88 against [To Charge Virginia], [To Charge Nevada], and [VeriPay].

At Boyd's request, the trial court polled the jury and each juror affirmed that the verdict reflected in the...