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Dyer v. William S. Bergman & Associates

April 20, 1995


Appeal from the Superior Court of the District of Columbia. (Hon. Herbert B. Dixon, Jr., Trial Judge).

Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: A jury awarded William S. Bergman & Associates, Inc. (WSBA) $20,625 in compensatory damages and $82,500 in punitive damages against William R. Dyer for tortious interference with contractual relations. The Judge subsequently awarded WSBA $42,779.28 in counsel fees. On appeal, Dyer contends that the evidence was insufficient to support a finding that he intentionally interfered with WSBA's contractual rights. He also asserts that the trial court should have set aside the award of punitive damages because, according to Dyer, his conduct was not sufficiently outrageous, because the proof did not meet a "clear and convincing" standard, and because, as a result of the granting of his motion for a remittitur, there remained no effective award of compensatory damages. Finally, he claims that the Judge abused his discretion in awarding WSBA counsel fees.

WSBA cross-appeals, contending that the Judge erroneously granted Dyer's motion for a remittitur. WSBA claims that, although it recovered $27,795.02 in an arbitration proceeding against the company which Dyer was found to have induced not to honor its contract with WSBA, no double recovery was involved because, according to WSBA, the arbitration award and the jury award covered different losses.

We affirm the judgment in all respects.



In its complaint, which was filed on November 27, 1989, WSBA alleged that Dyer, who was one of its former officers, breached his employment agreement, violated fiduciary obligations to WSBA, tortiously interfered with WSBA's contractual and business relationship with its client, National Structured Settlements Trade Association (NSSTA), and unlawfully appropriated documents and records from WSBA's offices so that he could divert NSSTA's business to himself. Dyer denied WSBA's allegations of wrongful conduct and counterclaimed for unpaid vacation and sick leave.

The jury trial in this case began on June 18, 1991. After the close of WSBA's case, Dyer moved for a directed verdict on all counts. The trial Judge denied the motion as to WSBA's claims of breach of contract and tortious interference with a contractual relationship, but granted the motion with respect to WSBA's claim of breach of fiduciary duty, holding that such a breach does not give rise to an independent cause of action. *fn1

On June 21, 1991, the jury found in favor of WSBA on its breach of contract and tortious interference claims, awarding WSBA $20,625 in compensatory damages on the tort claim and $82,500 in punitive damages. The jury awarded no damages on the breach of contract claim. Dyer filed a timely post-trial motion for judgment notwithstanding the verdict (n.o.v.) or, in the alternative, for a new trial. The court denied the motion.

WSBA had previously instituted a separate arbitration proceeding to recover damages suffered by WSBA as a result of NSSTA's breach of its contract with WSBA. The arbitrator ruled in WSBA's favor, and WSBA collected damages from NSSTA in the amount of $27,795.02. Contending that WSBA could not recover damages both for the breach of a contract and for tortious interference with the same contract, Dyer moved the court for a remittitur equal to the amount of the arbitration award. The Judge initially granted a remittitur of $27,795.02 (the amount of the arbitration award). In a written order dated June 9, 1993, however, the Judge granted in part WSBA's motion for reconsideration pursuant to Super. Ct. Civ. R. 59 (e) and held that the arbitration award should be credited only against the jury's award of compensatory damages, but not against the award of punitive damages. He therefore reduced the amount of the remittitur to $20,625.00. On July 9, 1993, Judge Dixon entered a final order which incorporated the jury's verdict and all post-trial rulings.

Prior to the Judge's resolution of WSBA's motion for reconsideration, Dyer filed an appeal from the judgment and from the denial of his motion for judgment n.o.v. Because the Rule 59 (e) motion was still pending, the appeal was dismissed as premature. Dyer v. William S. Bergman & Assocs., Inc., 635 A.2d 1285 (D.C. 1993) (Dyer I). Now before us are Dyer's timely appeal and WSBA's cross-appeal.



The evidence at trial, viewed in the light most favorable to WSBA, see Etheredge v. District of Columbia, 635 A.2d 908, 915-16 (D.C. 1993), revealed that WSBA is a trade association management firm operating in the District of Columbia. William S. Bergman is its president.

From 1976 until October 27, 1989, Dyer was an employee of WSBA and worked as an account executive. He also served as a director and vice-president for marketing, and he owned 10% of WSBA's stock. Like all of WSBA's employees, Dyer covenanted in his written employment agreement not to solicit or accept employment with any of WSBA's clients for one year after his employment terminated.

During the last two years of his employment at WSBA, at NSSTA's explicit request, Dyer had been designated to serve as the account executive for NSSTA, which was one of WSBA's principal clients. He also became an Executive Vice President of NSSTA. Although NSSTA was "very adamant about Randy Dyer being the person that we wanted," WSBA retained the right under the agreement to replace him as account executive. The initial term of NSSTA's contract was from ...

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