Kevin Campbell v. Charles Cathcart ( 2012 )

Filed: April 12, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1389
(2:06-cv-03283-DCN; 2:06-cv-01121-DCN;
2:07-cv-00593-DCN; 2:07-cv-00790-DCN;
2:07-cv-02964-DCN; 2:07-cv-02965-DCN;
2:07-cv-02992-DCN)
KEVIN CAMPBELL, Chapter 7 Trustee; GENERAL HOLDINGS,
INCORPORATED, a California Corporation; ALAN M. GRAYSON;
AMG TRUST; ROBERT G. SABELHAUS; MELANIE R. SABELHAUS;
NEWTON FAMILY LLC; WCN-GAN PARTNERS LTD, a Colorado
partnership,
Plaintiffs – Appellees,
v.
CHARLES D. CATHCART; YURI DEBEVC; EVELYN CATHCART,
Defendants – Appellants,
and
DERIVIUM CAPITAL USA, INCORPORATED; VERIDIA SOLUTIONS, LLC;
BANCROFT VENTURES LIMITED; DERIVIUM CAPITAL LLC; SHENANDOAH
HOLDINGS LTD; SPENCER PARTNERS LTD; COLIN BOWEN; NIGEL
HARLEY WOOD; PAUL ANTHONY JARVIS; ALEXANDER JEEVES; BRYAN
JEEVES; THE JEEVES GROUP, a/k/a The Jeeves Company, Ltd,
a/k/a Jeeves Holdings Ltd; OPTECH LIMITED; WITCO; CHARLES
HSIN; PTS INTERTECH INCORPORATED; AQUILIUS INCORPORATED;
BANCROFT VENTURES UK LTD; ISLE OF MAN ASSURANCE LTD; DMITRY
BOURIAK; VISION INTERNATIONAL PEOPLE GROUP PL; TOTAL
ECLIPSE INTERNATIONAL LTD; KRISTINA PHELAN; JEEVES HOLDINGS
LTD; JAVELIN LTD; LEXADMIN TRUST REG; ST VINCENT TRUST
COMPANY LTD; ST VINCENT TRUST SERVICE LTD; WINDWARD ISLES
TRUST COMPANY LTD; SELBOURNE TRUST COMPANY LTD; PELICAN
TRUST COMPANY LTD; JEEVES GROUP ASIA LTD; WACHOVIA
SECURITIES INCORPORATED; JOHN DOE 1; JOHN DOE 2; JOHN DOE
3; JOHN DOE 4; JOHN DOE 5; JOHN DOE 6; JOHN DOE 7; JOHN DOE
8; JOHN DOE 9; JOHN DOE 10; JEEVES COMPANY LTD; ORANGEBURG
METAL TREATMENT CO LLC; METARIZON LLC, f/k/a Metarizon
Solutions LLC; RANDOLPH ANDERSON; JONATHAN SANDIFER;
PATRICK KELLEY; ROBERT BRADENBURG; NIGEL THOMAS TEBAY;
JOANNA OVERFIELD BODELL; JEEVES GROUP OF COMPANIES, a
foreign association; DOES 1-20; CHARLES D. CATHCART
CRUSADER TRUST; CATHCART INVESTMENT TRUST; CATHLIT
INVESTMENT TRUST; DIVERSIFIED DESIGN ASSOCIATED LTD;
CLIFFORD LLOYD; DAVID KEKICH; RED TREE INTERNATIONAL; FIRST
SECURITY CAPITAL OF CANADA INCORPORATED; MARCO TOY
INCORPORATED; WITCO SERVICES UK LTD; MORIA THOMPSON
MCHARRIE; DAVID ANTHONY KARRAN; NIGEL HAMPTON MCGOWAN;
FRANCIS GERRARD QUINN; PETER KEVIN PERRY; BRIAN BODELL;
ANDREW THOMAS; EDWARD J. BUDDEN; JOANNA OVERFIELD BODELL;
CONISTON MANAGEMENT LTD; ISLE OF MAN FINANCIAL TRUST LTD;
SPENCER VENTURE PARTNERS LLC; LINDSEY AG; JACK W. FLADER,
JR.; JAMES C. SUTHERLAND; ZETLAND FINANCIAL GROUP LTD;
FRANKLIN W. THOMASON; TSUEI CONSULTANTS INCORPORATED;
NOBLESTREET LTD; FINANCIAL RESOURCES GROUP LLC; STRUCTURED
SYSTEMS AND SOFTWARE INCORPORATED; EAST BAY CAPITAL
VENTURES LLC,
Defendants,
v.
RALPH C. MCCULLOUGH, II,
Movant,
CHARLESTON ALUMINUM LLC; WILLIAM NEWTON; PRIVATE CONSULTING
GROUP,
Third Party Defendants.
O R D E R
The Court amends its opinion filed May 25, 2011, as
follows:
On the cover sheet caption, the names of Defendants
“SCOTT CATHCART,” “VERISTEEL INCORPORATED,” “SCOTT AND WHITNEY
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CATHCART FAMILY TRUST,” “WJC FERNHILL RESIDENTIAL TRUST,”
“PERSEVERUS INCORPORATED” and “SDC FERN HILL RESIDENTIAL TRUST”
are deleted.
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1389
KEVIN CAMPBELL, Chapter 7 Trustee; GENERAL HOLDINGS,
INCORPORATED, a California Corporation; ALAN M. GRAYSON;
AMG TRUST; ROBERT G. SABELHAUS; MELANIE R. SABELHAUS;
NEWTON FAMILY LLC; WCN-GAN PARTNERS LTD, a Colorado
partnership,
Plaintiffs – Appellees,
v.
CHARLES D. CATHCART; YURI DEBEVC; EVELYN CATHCART,
Defendants – Appellants,
and
DERIVIUM CAPITAL USA, INCORPORATED; VERIDIA SOLUTIONS, LLC;
BANCROFT VENTURES LIMITED; DERIVIUM CAPITAL LLC; SHENANDOAH
HOLDINGS LTD; SPENCER PARTNERS LTD; COLIN BOWEN; NIGEL
HARLEY WOOD; PAUL ANTHONY JARVIS; ALEXANDER JEEVES; BRYAN
JEEVES; THE JEEVES GROUP, a/k/a The Jeeves Company, Ltd,
a/k/a Jeeves Holdings Ltd; OPTECH LIMITED; WITCO; CHARLES
HSIN; PTS INTERTECH INCORPORATED; AQUILIUS INCORPORATED;
BANCROFT VENTURES UK LTD; ISLE OF MAN ASSURANCE LTD; DMITRY
BOURIAK; VISION INTERNATIONAL PEOPLE GROUP PL; TOTAL
ECLIPSE INTERNATIONAL LTD; KRISTINA PHELAN; JEEVES HOLDINGS
LTD; JAVELIN LTD; LEXADMIN TRUST REG; ST VINCENT TRUST
COMPANY LTD; ST VINCENT TRUST SERVICE LTD; WINDWARD ISLES
TRUST COMPANY LTD; SELBOURNE TRUST COMPANY LTD; PELICAN
TRUST COMPANY LTD; JEEVES GROUP ASIA LTD; WACHOVIA
SECURITIES INCORPORATED; JOHN DOE 1; JOHN DOE 2; JOHN DOE
3; JOHN DOE 4; JOHN DOE 5; JOHN DOE 6; JOHN DOE 7; JOHN DOE
8; JOHN DOE 9; JOHN DOE 10; JEEVES COMPANY LTD; ORANGEBURG
METAL TREATMENT CO LLC; METARIZON LLC, f/k/a Metarizon
Solutions LLC; RANDOLPH ANDERSON; JONATHAN SANDIFER;
PATRICK KELLEY; ROBERT BRADENBURG; NIGEL THOMAS TEBAY;
JOANNA OVERFIELD BODELL; JEEVES GROUP OF COMPANIES, a
foreign association; DOES 1-20; CHARLES D. CATHCART
CRUSADER TRUST; CATHCART INVESTMENT TRUST; CATHLIT
INVESTMENT TRUST; DIVERSIFIED DESIGN ASSOCIATED LTD;
CLIFFORD LLOYD; DAVID KEKICH; RED TREE INTERNATIONAL; FIRST
SECURITY CAPITAL OF CANADA INCORPORATED; MARCO TOY
INCORPORATED; WITCO SERVICES UK LTD; MORIA THOMPSON
MCHARRIE; DAVID ANTHONY KARRAN; NIGEL HAMPTON MCGOWAN;
FRANCIS GERRARD QUINN; PETER KEVIN PERRY; BRIAN BODELL;
ANDREW THOMAS; EDWARD J. BUDDEN; JOANNA OVERFIELD BODELL;
CONISTON MANAGEMENT LTD; ISLE OF MAN FINANCIAL TRUST LTD;
SPENCER VENTURE PARTNERS LLC; LINDSEY AG; JACK W. FLADER,
JR.; JAMES C. SUTHERLAND; ZETLAND FINANCIAL GROUP LTD;
FRANKLIN W. THOMASON; TSUEI CONSULTANTS INCORPORATED;
NOBLESTREET LTD; FINANCIAL RESOURCES GROUP LLC; STRUCTURED
SYSTEMS AND SOFTWARE INCORPORATED; EAST BAY CAPITAL
VENTURES LLC,
Defendants,
v.
RALPH C. MCCULLOUGH, II,
Movant,
CHARLESTON ALUMINUM LLC; WILLIAM NEWTON; PRIVATE CONSULTING
GROUP,
Third Party Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:06-cv-03283-DCN; 2:06-cv-01121-DCN; 2:07-cv-00593-
DCN; 2:07-cv-00790-DCN; 2:07-cv-02964-DCN; 2:07-cv-02965-DCN;
2:07-cv-02992-DCN)
Submitted: April 26, 2011 Decided: May 25, 2011
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
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Charles D. Cathcart, Yuri Debevc, Evelyn Cathcart, Appellants
Pro Se. Richard Ashby Farrier, Jr., NELSON MULLINS RILEY &
SCARBOROUGH, LLP, Charleston, South Carolina; Joseph Camden
Wilson, PIERCE, HERNS, SLOAN & MCLEOD, Charleston, South
Carolina; Alisa Joy Roberts, KUBLI & ASSOCIATES, P.C., Vienna,
Virginia; Neil Keith Emge, Jr., CARLOCK, COPELAND, SEMLER &
STAIR, LLP, Charleston, South Carolina; Hugh Wilcox Buyck, BUYCK
LAW FIRM, Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Charles Cathcart (“Cathcart”), Evelyn Cathcart
(“Evelyn”), and Yuri Debevc (“Debevc”) appeal from the judgments
entered by the district court following a jury trial and the
court’s separate findings of fact and conclusions of law in
seven district court cases that were consolidated for trial.
The jury found in favor of the Trustee, Kevin Campbell, and in
favor of Alan Grayson and the AMG Trust on their claims to
recover a fraudulent transfer from Evelyn. 1 The jury found in
favor of the Plaintiffs and against Defendants Cathcart, Debevc,
Veridia Solutions, LLC, and Derivium Capital, LLC, 2 on the claims
for actual and constructive fraudulent conveyance, breach of
fiduciary duty, and violations of the Racketeer Influenced
Corrupt Organization Act, 18 U.S.C.A. §§ 1961-1968 (West 2006 &
Supp. 2010) (“RICO”). The judgments provided for joint and
several liability.
In the court’s findings of fact and conclusions of
law, the district court ruled on the non-jury claims for
piercing the corporate veil and alter ego and determined that
1
District court cases No. 2:07-cv-02992 and No. 2:07-cv-
00593.
2
Derivium Capital was not named a Defendant in Nos. 2:07-
cv-02964 or 2:07-cv-02965, which were filed by Newton Family,
LLC, and WCN/GAN Partners, Ltd. against Cathcart, Debevc, and
Veridia.
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the corporate forms for Derivium and Veridia should be
disregarded and Cathcart and Debevc be held personally
responsible for the debts of the corporations. Cathcart and
Debevc do not challenge on appeal the district court’s
determination to disregard the corporate form and hold them
personally liable for the debts of Derivium and Veridia. Any
challenge to this finding is therefore abandoned. See 4th Cir.
Local Rule 34(b); Williams v. Giant Food Inc., 370 F.3d 423, 430
n.4 (4th Cir. 2004) (issues not argued in opining brief are
deemed abandoned).
Additionally, because the corporations are not parties
to this appeal, the claims against the corporations are
abandoned and the district court’s judgments finding them
jointly and severally liable with Cathcart and Debevc are final.
“To qualify as a case fit for federal-court
adjudication, an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.”
Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (internal quotation marks omitted). A case fails to meet
this requirement where “resolution of an issue could not
possibly have any practical effect on the outcome of the
matter.” Norfolk S. Ry. v. City of Alexandria, 608 F.3d 150,
161 (4th Cir. 2010). In light of the fact that Cathcart and
Debevc remain personally liable for the judgments against the
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corporations by their failure to appeal the determination to
disregard the corporate form and by the corporations’ failure to
appeal the judgments against them, any resolution of the issues
asserted by Cathcart and Debevc would have no practical effect
on the outcome of the case. See id. Accordingly, the appeals
of Cathcart and Debevc are dismissed.
The only issue properly before the court for
resolution is Evelyn’s challenge to the sufficiency of the
evidence to support the fraudulent conveyance judgments against
her. “Recognizing that we may not substitute our judgment for
that of the jury or make credibility determinations, if there is
evidence on which a reasonable jury may return verdicts in favor
of Appellees, we must affirm.” Price v. City of Charlotte,
North Carolina, 93 F.3d 1241, 1249-50 (4th Cir. 1996) (citations
omitted). We have reviewed the evidence presented during the
four-week trial in these cases, and we find that the evidence
was sufficient to support the jury’s verdict. Accordingly we
affirm the judgments against Evelyn.
While we grant the Appellants’ motion to exceed the
length limit on their informal brief, we deny Debevc’s motion
for transcripts at government expense, affirm the judgments
against Evelyn and in favor of Kevin Campbell and Alan Grayson
and the AMG Trust, and dismiss the remainder of the appeal. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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