Cotten & Selfon v. Charnock ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COTTEN & SELFON, a dissolved 
partnership,
Plaintiff-Appellant,
v.
RONALD R. CHARNOCK, individually  No. 00-1498
and as Executor of the Estate of
Benjamin W. Cotten; CRISTIN T.
COTTEN,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-99-141-A)
Argued: February 26, 2001
Decided: March 27, 2001
Before WIDENER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: George R. Kucik, ARENT, FOX, KINTNER, PLOTKIN
& KAHN, P.L.L.C., Washington, D.C., for Appellant. John Joseph
Brennan, III, JACKSON & CAMPBELL, P.C., Washington, D.C., for
Appellees. ON BRIEF: Anne L. Milem, Courtney A. Sullivan,
2 COTTEN & SELFON v. CHARNOCK
ARENT, FOX, KINTNER, PLOTKIN & KAHN, P.L.L.C., Washing-
ton, D.C., for Appellant. Vernon W. Johnson, III, JACKSON &
CAMPBELL, P.C., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case involves a dispute arising out of a stock transfer from the
founder and part-owner of a corporation to his longtime friend and
lawyer for the corporation. Following the lawyer’s death, his partner-
ship sued his estate, his wife, and the transferor, claiming that the pro-
ceeds from the eventual sale of stock belonged to the partnership; the
estate counterclaimed asserting its entitlement to insurance proceeds
on the decedent’s life. At the conclusion of the partnership’s case, the
district court granted the defendants’ motion for judgment as a matter
of law. The parties then entered into an oral settlement agreement as
to the counterclaim, which the district court later enforced. The part-
nership appeals, maintaining that the district court erred in granting
the defendants judgment as a matter of law and in enforcing the settle-
ment agreement. We affirm.
I.
Benjamin Cotten and Ronald Charnock were longtime friends and
business associates. Cotten’s law firm, Cotten & Selfon and its pre-
decessors, served as counsel for Charnock’s corporation, NPRI, Inc.,
from its creation in 1981.
In 1991, at Charnock’s request, Cotten drafted a "Proposal for
Equity Participation in NPRI, Inc.," regarding the organization of a
formal Board of Directors for NPRI. Charnock relayed this proposal
via letter to his NPRI co-owners, suggesting in part that Cotten
COTTEN & SELFON v. CHARNOCK 3
become a formal Board member and receive 10% of NPRI stock "in
exchange for his involvement with the company from its inception
and would be treated as a form of bonus." This letter also stated that
if NPRI chose not to adopt this proposal, Charnock would give Cotten
the stock out of his personal holdings. NPRI never adopted the pro-
posal.
In 1992, Cotten transferred 80 shares of his own NPRI stock to
Cotten as a gift, sending Cotten a personal letter thanking him for his
friendship and "advice and counsel" and stating that "[m]uch of what
I am, particularly on a professional level, is due to our relationship."
As its founder and President, Charnock expressed how much NPRI
meant to him and further stated that "[t]he decision that I made to gift
the stock to you was based as much on your contributions to date as
it was for the contributions I’m confident you’ll make to the company
in the future."
Although the record evidence clearly demonstrates that Cotten
never attempted to keep this gift a secret, Cotten’s law partner, Bruce
Selfon, claims that he did not learn of Cotten’s NPRI stock ownership
until late 1996. According to Selfon, at that time he questioned the
propriety of owning stock in a client corporation, but nonetheless
asked Cotten to use the stock to pay down an existing Cotten & Sel-
fon $250,000 line of credit; Selfon does not maintain that he ever
asked Cotten to turn all of the stock over to the law firm. According
to Selfon, Cotten agreed to pay down the line of credit, but in 1997
sold the stock and used the proceeds, in excess of $1 million, to pur-
chase a home.
Cotten died in April 1998. In February 1999, Cotten & Selfon ("the
Partnership") filed suit against Cotten’s wife, Cristin, and Charnock,
individually and as Executor of Cotten’s Estate ("the Estate"). The
complaint alleged nine counts based on the stock transfer, including
breach of contract, breach of fiduciary duty, conversion, fraud, and
civil conspiracy. The Estate counterclaimed against Selfon and the
Partnership for a breach of contract and breach of fiduciary duty for
failure to pay life insurance proceeds on Cotten’s life to the Estate.
A jury trial began in January 2000. At the conclusion of the Part-
nership’s case, the defendants moved for judgment as a matter of law
4 COTTEN & SELFON v. CHARNOCK
under Fed. R. Civ. P. 50. The district court granted the motion and
entered judgment against the Partnership on all of its claims, finding
that "in this case there isn’t any evidence to go forward to the jury.
The evidence is clear that [the stock transfer] was a gift," thus the
stock did not belong to the Partnership.
After this ruling, the Partnership and Estate reached an oral settle-
ment of the Estate’s counterclaim, with the Partnership agreeing to
pay the Estate $350,000. The district court issued a final order and
judgment enforcing the settlement agreement on April 7, 2000. This
appeal followed.
II.
We review a district court’s grant of a motion for judgment de
novo and must affirm if the non-moving party failed to provide "sub-
stantial evidence in the record upon which the jury could find" in its
favor. Havird Oil Co. v. Marathon Oil, Co., 149 F.3d 283, 289 (4th
Cir. 1998).
The Partnership’s principal contention on appeal is that it produced
sufficient evidence to allow a jury to find that Cotten received stock
from Charnock in violation of the partnership agreement and govern-
ing District of Columbia partnership law.1 Specifically, the Partner-
ship contends that the stock was "property, profit or [a] benefit
derived by [Cotten] in the conduct of partnership business," D.C.
Code Ann. § 41-154.4, or a "fee[ ], commission[ ], or reward[ ] from
[the Partnership’s] legal business," to which the Partnership is enti-
tled. Brief of Appellant at 13.
In attempting to prove its case, the Partnership adduced uncontra-
1
The defendants argue that the Partnership waived its right to appeal
its claim, because the settlement agreement encompassed the entire case,
including the claim disposed of under Rule 50. We need not reach this
issue because we conclude that even if the Partnership’s claim was not
part of the settlement agreement and it therefore retained its right to
appeal this issue, the district court properly granted judgment to the
defendants. For the same reason, we deny as moot what the Partnership
styles a "Motion to Dismiss."
COTTEN & SELFON v. CHARNOCK 5
dicted evidence and testimony that Charnock intended this stock to be
a gift; that the reason behind this gift was Cotten’s longtime personal
and professional relationship with Charnock; that NPRI had paid all
of its legal bills from the Partnership; that Cotten never attempted to
keep this stock transfer a secret from Selfon; and that Selfon, upon
learning of the stock transfer, did not demand that Cotten turn over
the stock to the Partnership. Of course, none of these facts support the
Partnership’s position. For this reason, the Partnership was forced to
rely mainly on its counsel’s assertions that the gift of stock was a ruse
to cover up what was truly a "bonus" for legal services.
According to the Partnership, several other pieces of evidence sup-
port its position and would have allowed a jury to find that the stock
was not a gift to Cotten, but instead a "bonus" for legal services that
belonged to the Partnership. But none of this other evidence actually
contradicts the evidence and testimony that the stock transfer was in
fact a gift rather than compensation for "partnership business." Thus,
there is not "substantial evidence in the record upon which the jury"
could reasonably adopt the Partnership’s theory. Havird Oil, 149 F.3d
at 289.
For example, the Partnership argues that the "Proposal for Equity
Participation in NPRI, Inc." and Charnock’s letter suggesting that
NPRI adopt the proposal is evidence supporting its theory. Under the
proposal and letter, Cotten would have received 10% of NPRI’s stock
"in exchange for his involvement with the company from its inception
and would be treated as a form of bonus." The Partnership contends
that this shows that the gift to Cotten was actually a "bonus." There
is uncontradicted testimony, however, that NPRI never adopted this
"bonus" proposal. Instead, Charnock gave Cotten the stock from his
personal holdings. The Partnership’s claim that the gift was a cover
for the bonus proposal is mere speculation, without any evidentiary
basis.
The Partnership also elicited testimony from Ernie Connon, who
purchased 80 shares of NPRI stock in May 1992. Connon testified
that when he asked Charnock why Cotten received his stock for free,
Charnock stated that "Ben [Cotten] had done a lot of things for him
in the early days when he was setting up the company, and that he felt
it was something that was due to him." Despite the Partnership’s pro-
6 COTTEN & SELFON v. CHARNOCK
testations, this is not inconsistent with Charnock’s statements that the
stock was a gift. Charnock may well have felt that the stock was "due
to" Cotten, but gifts can certainly be based on feelings of obligation.
It does not follow that the stock was "due to him" for legal services
or was a "reward" derived from the "legal business."
The testimony of Daniel Schumack, a former associate at Cotten &
Selfon, does no more to sustain the Partnership’s case. Schumack
wrote a memo regarding the "NPRI Stock Transactions," stating in
part that "[t]he ‘gift’ of stock will be suspect, given the attorney-for-
pay relationship you have had with Ron [Charnock] for years." The
Partnership contends that this memorandum evidenced a scheme to
hide the stock "bonus" as a gift. But this assertion is belied by Schu-
mack’s uncontradicted testimony that at the time that he wrote the
memorandum, "it was a foregone conclusion" that Cotten was to
receive the gift, and "the only thing left to do was to print the stock
certificate." As it was already a "foregone conclusion," Schumack’s
memorandum does not contradict Charnock’s previously formed
donative intent.
Moreover, Schumack’s uncontradicted testimony is that this mem-
orandum concerned whether the IRS would have treated the transfer
as a gift, not whether Charnock intended the stock to be a gift or a
bonus for legal services. This memorandum does nothing to contra-
dict Charnock’s stated intention that he was giving a gift to his old
friend Cotten. Indeed, Schumack was an impartial witness who never
wavered in his testimony that the stock was a gift.
The Partnership also asserts the stock was not a gift because
Charnock did not file a gift tax return. Brief of Appellant at 6. That,
however, is a misstatement of the record evidence. Charnock testified
that he did not recall whether he filed a gift tax return, but it "would
be with my tax returns if I did." The Partnership never introduced
Charnock’s tax returns, thus there is no record evidence either way on
this point. In any event, Charnock had no motivation to treat the stock
transfer as a gift if it was truly a "bonus" for legal services. Charnock
may have been liable for the tax on a gift, but if the stock was pay-
ment for legal services Charnock might well have been able to deduct
it as a business expense.
COTTEN & SELFON v. CHARNOCK 7
The Partnership also relies on the gift letter from Charnock to Cot-
ten, as well as Cotten’s subsequent letter of gratitude. Charnock’s let-
ter stated in part that "[t]he decision that I made to gift the stock to
you was based as much on your contributions to date as it was for the
contributions I’m confident you’ll make to the company in the
future." Again, there is no evidence that the "contributions" spoken of
in this letter are legal services, payment for which is due to the Part-
nership. The evidence shows that Cotten made both personal and pro-
fessional contributions to Charnock and his company. The Partnership
provided insufficient evidence to demonstrate that the stock was com-
pensation for unidentified legal services, to which it was entitled.
The Partnership’s reading of Cotten’s "thank you letter" is also
untenable. The letter stated in part that:
One of the best definitions of a friend I have ever heard is
that "a friend is one who knows all about you and likes you
just the same." We may need to couple a phrase to that
description that says something about avoiding a subpoena
to testify, but perhaps that is admitting too much.
The Partnership argues that a jury could read the "avoiding a sub-
poena" language as "code" that the two "should keep the transaction
a secret." Brief of Appellant at 6. There is no reasonable basis for
such a speculative reading. In the context of the rather idiosyncratic
correspondence between Charnock and Cotten, the language was
obviously a joking nod to how well the two knew each other.
Ultimately, even if it is true that Charnock gave Cotten the stock
because he thought it was "due to him," there is no evidence that it
was a "benefit" or "reward" derived from the legal business such that
it would be due to the Partnership. The Partnership did not identify
the "legal business" for which the stock was compensation. The Part-
nership did not elicit testimony from the other NPRI owners that this
transfer was actually a "bonus" for legal services. Nor did the Partner-
ship provide evidence that Selfon asked Cotten to remit all of the
stock to the Partnership. Indeed, it was not until after the NPRI stock
greatly increased in value that Selfon made any effort to obtain any
benefit from the stock for the Partnership.
8 COTTEN & SELFON v. CHARNOCK
Thus record evidence establishes that the stock was a gift for
friendship and business assistance, not payment for legal work, which
had already been billed and paid in full. The Partnership was given
a full opportunity to present its case, but failed to produce sufficient
evidence to sustain its theory. The district court thus did not err in
granting defendants’ motion for judgment as a matter of law.2
III.
Additionally, the Partnership contends that the district court lacked
jurisdiction to construe or enforce the parties’ settlement agreement
because the agreement had not previously "been approved and incor-
porated into an order of the court." Brief of Appellant at 27 (quoting
Columbus-America Disc. Group v. Atl. Mut. Ins., 203 F.3d 291, 299
(4th Cir. 2000)). The Partnership relies on three inapposite cases. See
Columbus-America; Kokkonen v. Guardian Life Ins. Co. of America,
511 U.S. 378, 377-78 (1994); Fairfax Countywide Citizens v. Fairfax
County, 571 F.2d 1299, 1301 (4th Cir. 1978). In each of those cases
after the parties settled, the court then attempted to re-open the case
or enforce the agreement without having explicitly kept jurisdiction
2
The Partnership also claims that the district court erred by failing to
draw an adverse inference against the defendants, based on the fact that
Charnock destroyed documents during discovery. The Partnership argues
that "[s]poilation of evidence permits an adverse inference against the
culpable party." Brief of Appellant at 24 (citing and relying almost
entirely on Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir.
1996)).
This argument fails. First, "the trial court has broad discretion to per-
mit a jury to draw adverse inferences from a party’s . . . destruction of
evidence." Vodusek, 71 F.3d at 156 (emphasis added). Moreover, the
Partnership had to prove that Charnock knew the evidence was relevant
to an issue at trial and that he willfully caused the destruction of that evi-
dence. See id. See also Hartford Ins. Co. of the Midwest v. American
Automatic Sprinkler Sys., Inc., 201 F.3d 538, 543-44 (4th Cir. 2000).
Charnock testified, and the Partnership presented nothing to contradict
his testimony, that he "knew [the documents] had absolutely no rele-
vance to this case . . . . [T]hey were documents that were very, very old
and simply stored in a storage space." Accordingly, the district court did
not abuse its discretion in declining to submit the spoilation question to
the jury.
COTTEN & SELFON v. CHARNOCK 9
over the case. In this situation, appellate courts held that the trial court
no longer had jurisdiction to enforce the settlement.
In contrast, here, in January the parties entered into an oral settle-
ment of the counterclaim, following the grant of judgment on the
Partnership’s claims; but certain conditions remained unresolved. The
district court retained jurisdiction until it issued a final order on April
7, 2000, in which it enforced the oral settlement and entered a judg-
ment, finally disposing of the entire case. Thus, unlike the cases cited
above, the district court did not dispose of the case or relinquish juris-
diction until April 7. As such, the district court had jurisdiction to
enforce the settlement agreement, and the Partnership’s assertions to
the contrary are meritless.3
IV.
Therefore, the district court’s judgment is hereby
AFFIRMED.
3
Accordingly, the Partnership’s entire "Conditional Argument," that
the district court erred by denying summary judgment on the counter-
claims is moot, as the parties settled the counterclaims and the district
court had jurisdiction to enforce that settlement.