JOHN S. BENNETT v. JAMES GARNER; VIRTUS CONSULTING, LLC
No. 18-1531
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 16, 2019
PUBLISHED
Argued: December 13, 2018
Decided: January 16, 2019
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Kevin M. O‘Donnell, HENRY & O‘DONNELL, PC, Alexandria, Virginia, for Appellant. Thomas Wayne Biggs II, DYCIO & BIGGS, Fairfax, Virginia, for Appellees. ON BRIEF: Jeffery T. Martin, Jr., HENRY & O‘DONNELL, PC, Alexandria, Virginia, for Appellant. Daniel F. Izzo, DYCIO & BIGGS, Fairfax, Virginia, for Appellees.
John S. Bennett appeals from the district court‘s award of summary judgment in favor of his former employer, Virtus Consulting, LLC (Virtus), and its owner, James Garner (collectively, the defendants), in Bennett‘s action seeking to collect on a state court judgment entered against the defendants. The district court held that Bennett‘s claims were precluded under Virginia‘s doctrine of res judicata.
Upon our review, we conclude that Bennett‘s claims are not precluded, because Bennett could not have brought those claims at the time of his earlier litigation. Accordingly, we vacate the district court‘s judgment and remand for further proceedings.
I.
We present the facts in the light most favorable to Bennett, the nonmoving party, and draw all reasonable inferences in his favor. Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 150 (4th Cir. 2012) (citation omitted). Virtus is a Virginia limited liability company that provides consulting services to various financial institutions. Garner is the owner and sole member of Virtus. Bennett was employed by Virtus and worked as the principal contact for one of Virtus’ largest clients.
In 2012, Garner began negotiations to sell Virtus’ assets to the Solomon Edwards Group (SEG). Around the same time, the defendants and Bennett signed an agreement, in which Bennett agreed to assist in the sale in exchange for “sharing [in the] proceeds” from the sale (the Bennett Agreement). Under the Bennett Agreement, once the sale to SEG successfully closed, Bennett would receive a fixed cash payment made in quarterly
The sale of Virtus’ assets to SEG successfully closed around the end of September 2012. In accordance with the Bennett Agreement, Garner made the first two quarterly installment payments to Bennett. But, in April 2013, the defendants ceased making any further payments, claiming that Bennett had breached his obligations under the agreement. Bennett, however, maintained that he was entitled to the remaining installment payments and the “earn out” payments.
The parties submitted their dispute to an arbitrator as required by the arbitration clause in the Bennett Agreement. During the arbitration proceedings, the defendants provided Bennett documents describing the structure of the SEG sale but did not produce any of Virtus’ financial records or bank statements. In response to a request seeking those financial records, the defendants stipulated that the Bennett Agreement was properly executed and that the performance metrics triggering the “earn out” payments had been “met in full.”
In September 2014, the arbitrator ordered Virtus to pay Bennett $387,500. Under the terms of the Bennett Agreement, the arbitrator held Garner jointly and severally liable for $125,000 of that award. The award was confirmed by a Virginia circuit court and reduced to a judgment. Although Garner paid the portion of the award for which he personally was liable, Virtus failed to pay the remaining $262,500.
In May 2017, Bennett initiated the present action in the district court seeking to collect on his judgment. He asserted four claims against the defendants: (1) fraudulent conveyance, in violation of
We review de novo the district court‘s award of summary judgment. Rosetta Stone Ltd., 676 F.3d at 150.
A.
Before addressing the parties’ arguments, we begin by reviewing the applicable principles of res judicata. In considering the preclusive effect of an earlier state court judgment on a new claim, we apply the “preclusion law of the State in which judgment was rendered.” In re Genesys Data Techs., Inc., 204 F.3d 124, 127 (4th Cir. 2000) (quoting Marrese v. Am. Acad. of Orthopedic Surgeons, 470 U.S. 373, 380 (1985)). Here, the arbitration award was confirmed and reduced to a judgment by a Virginia court. We therefore apply Virginia‘s principles of res judicata.
In Virginia, res judicata2 is governed by Rule 1:6 of the Rules of the Supreme Court of Virginia, which states in relevant part:
A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought.
While ostensibly a broad proposition, res judicata nonetheless is limited by longstanding principles. For instance, claims brought solely to execute on a judgment are generally not precluded by prior litigation that resulted in that judgment. See State Farm Mut. Auto. Ins. Co. v. Kelly, 380 S.E.2d 654, 655 n.2 (Va. 1989); see also Restatement 2d Judgments § 18(c). Similarly, res judicata does “not bar a claim that does not accrue prior to the litigation triggering the bar.” Funny Guy, 795 S.E.2d at 900 (emphasis added). A party is not precluded from bringing a claim that he was unable to bring in the initial litigation, regardless whether that claim constitutes part of the same “conduct, transaction, or occurrence.” D‘Ambrosio, 809 S.E.2d at 628; Funny Guy, 795 S.E.2d at 890 (“Determining which claims should have been brought in earlier litigation largely depends on which claims could have been brought.” (citation omitted)); see also Lawlor v. Nat‘l Screen Serv. Corp., 349 U.S. 322, 328 (1955) (explaining that although an earlier
B.
As the parties asserting res judicata, the defendants bear the burden of showing that it is more likely than not that Bennett‘s claims should be precluded by the prior judgment. D‘Ambrosio, 809 S.E.2d at 628. The defendants argue, as they did in the district court, that because Bennett had knowledge of the structure of the SEG sale at the time of the arbitration, Bennett could have raised both his fraudulent transfer and alter-ego claims during those proceedings. Accordingly, the defendants contend that under Virginia‘s doctrine of res judicata, Bennett must have brought those claims during the arbitration proceedings.
In response, Bennett generally maintains that his claims are brought solely in execution of his state court judgment. That is, instead of seeking to “relitigate” the defendants’ liability under the Bennett Agreement, Bennett argues that his fraudulent transfer claims were an attempt to collect on the judgment he is owed and could not have been brought before the judgment was entered. With respect to his alter-ego claim, Bennett similarly argues that he could not have maintained that claim before obtaining the judgment against Virtus. We agree with Bennett and address each argument in turn.
1.
We begin by considering the question whether Bennett could have raised his fraudulent transfer claims during the arbitration proceedings. Actions brought under
In the present case, the disputes that the parties submitted to arbitration focused on the issue whether Bennett was entitled to receive the remaining payments under the Bennett Agreement. Thus, the arbitration served only to establish the parties’ respective obligations and liability under the Bennett Agreement.
In contrast, Bennett‘s fraudulent transfer claims allege that Virtus depleted its corporate assets and made improper conveyances to Garner to prevent Bennett from
Furthermore, we observe that had Bennett claimed that the defendants were attempting to defraud him by transferring assets, before he proved that he was entitled to payments under the Bennett Agreement, those fraudulent transfer claims would have been premature. At the time of the arbitration proceedings, Bennett did not have
It was not until Virtus failed to satisfy the judgment rendered against it, and Bennett received Virtus’ relevant financial records, that he learned that Virtus had no remaining assets from which it could pay the judgment. These financial documents also disclosed the recipient of Virtus’ transferred assets and the nature of such transfers, allowing Bennett to properly plead his fraudulent transfer claims. Thus, it was only after the state court judgment was entered that Bennett would have had “actual notice” of any potential fraudulent transfer claims. Cf. Luria v. Bd. of Dirs. of Westbriar Condo. Unit Owners Ass‘n, 672 S.E.2d 837, 840 (Va. 2009) (recognizing that, while a judgment is not required to bring a fraudulent conveyance claim, a plaintiff must have “actual notice of a specific potential claim” to be considered a “creditor” under
On these facts, we hold that Bennett could not have brought his fraudulent transfer claims in the arbitration proceedings. To conclude otherwise essentially would have required Bennett to be clairvoyant. Under the defendants’ logic, a plaintiff in Bennett‘s position would have had to amend his original complaint, adding claims of fraudulent conveyance whenever he suspected that the defendant was moving money to avoid paying a potential judgment. Otherwise, the plaintiff would risk having those claims barred in a later action to collect on that judgment. In other words, Bennett would have
2.
With respect to Bennett‘s alter-ego claim, we similarly conclude that the claim could not have been brought before the state court judgment was entered against Virtus. When an individual uses a corporate form to “disguise wrongs, obscure fraud, or conceal crime,” Virginia law permits a plaintiff to pierce the corporate veil and to impose liability directly on the individual as the “alter ego” of the corporation. Cheatle v. Rudd‘s Swimming Pool Supply Co., 360 S.E.2d 828, 831 (Va. 1987). However, before bringing an action to pierce the corporate veil, the plaintiff must “first obtain[] a judgment against the corporation.” Dana v. 313 Freemason, 587 S.E.2d 548, 553 (Va. 2003). Because Bennett was required to obtain a judgment against Virtus before bringing his alter-ego claim, this claim had not yet accrued at the time of the arbitration proceedings. Accordingly, we hold that Bennett‘s alter-ego claim also is not precluded under Virginia‘s doctrine of res judicata. See D‘Ambrosio, 809 S.E.2d at 628.
III.
VACATED AND REMANDED