POMEROY, INCORPORATED, d/b/a Unique Balance, a Delaware Corporation v. FOUR JAKS, INCORPORATED, a West Virginia Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 POMEROY, INCORPORATED, d/b/a
Unique Balance, a Delaware
Corporation,
Plaintiff-Appellee,
v.
FOUR JAKS, INCORPORATED, a West
Virginia Corporation; LAPIED,
INCORPORATED, a West Virginia
Corporation; GENE BEARD; MARY No. 00-2259 
ALICE BEARD; SCOTT BEARD; JAMES
PIERCE,
Defendants-Appellants,
and
MATTHEW R. TUCKWILLER, a/k/a Matt
Tuckwiller; CITY NATIONAL BANK OF
WEST VIRGINIA,
Parties in Interest. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CA-99-93-5)
Argued: May 7, 2001
Decided: June 4, 2001
Before WILKINSON, Chief Judge, and WILLIAMS and
MOTZ, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: James Byron Lees, Jr., HUNT & LEES, L.C., Charleston,
West Virginia, for Appellants. Mark E. Troy, PULLIN, KNOPF,
FOWLER & FLANAGAN, P.L.L.C., Charleston, West Virginia, for
Appellee. ON BRIEF: Gary E. Pullin, PULLIN, KNOPF, FOWLER
& FLANAGAN, P.L.L.C., Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After trial in this diversity case, the jury awarded substantial dam-
ages to the plaintiff, Pomeroy, Incorporated, doing business as Unique
Balance ("Unique"). The defendants — Four Jaks, Incorporated,
Lapied, Incorporated, Gene, Mary Alice, and Scott Beard, and James
Pierce — appeal. We affirm in part, vacate in part, and remand.
I.
In 1966, Rex Cross, the owner and chairman of Unique, hired Gene
Beard to work as a salesman for Unique, which makes various win-
dow parts. By the 1980s, Gene Beard was charged with overall sales
for Unique. In 1982, Gene and his wife, Mary Alice, started Lapied,
which assembled window parts for Unique out of the Beards’ home.
Three years later, Lapied moved its operation to Unique’s facility in
Ronceverte, West Virginia.
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In 1995, Gene’s son, Scott, started Four Jaks, which made injection
plastic molding and other window parts. Mary Alice was the Presi-
dent of Four Jaks, and her son-in-law, James Pierce, also helped to
manage the Four Jaks operation. From 1995 to the end of 1998, Gene,
Mary Alice, Scott, and James were also Unique employees, working
in the Ronceverte facility.
On December 30, 1998, Unique Balance discharged Gene, Scott,
and James. A month later, on February 4, 1999, Unique filed this suit
alleging conversion, tortious interference, and conspiracy to commit
those torts. Unique claimed that the defendants "misappropriate[d]"
its "funds, goods, services and equipment," and "intentionally inter-
fere[d]" with Unique’s business causing Unique to "suffer a loss of
customers and profits." Basically, Unique asserted that the defendants
diverted business and customers from Unique to Four Jaks, used
Unique materials and employees to make Four Jaks’s products, and
spent much of their time as paid Unique employees working for Four
Jaks. The jury returned a verdict for Unique and held each of the six
defendants liable for $100,000 in damages, for a total award of
$600,000. This appeal followed.
II.
The defendants maintain that the district court erred by allowing
Unique to amend its complaint, following the presentation of its evi-
dence, to include a claim of breach of fiduciary duty against Gene
Beard. They also contend that West Virginia does not recognize a
claim for breach of fiduciary duty by one in Gene Beard’s position.
With respect to the amendment, the district court acted within its
discretion, see Fed. R. Civ. P. 15(b), in permitting the amendment.
Moreover, Gene Beard has demonstrated no prejudice suffered from
the amendment. The evidence used to support the amended claim was
virtually the same evidence used to support the conversion and tor-
tious interference claims.
As to the substance of the breach of fiduciary duty claim, the
defendants maintain that West Virginia would not recognize such a
claim against Gene Beard because he was not a corporate officer or
director of Unique and owed no fiduciary duty to the company. They
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cite no authority for this contention, but even assuming that West Vir-
ginia holds only corporate officers or directors to a fiduciary duty,
Gene Beard meets that criterion.
West Virginia case law provides no assistance in defining a corpo-
rate officer, but Black’s Law Dictionary defines corporate officers as:
Those persons who fill the offices which are provided for in
the corporate charter such as president, treasurer, etc.,
though in a broader sense the term includes vice presidents,
general manager and other officials of the corporation.
Black’s Law Dictionary 340 (6th ed. 1990).
Gene Beard acknowledged that he held the title of "Vice President"
and was also a "Secretary" of Pomeroy, Inc. and Pomeroy Transporta-
tion. Although the trial transcript is not clear, Beard may have also
admitted that he was an "[o]fficer of Unique Balance and Pomeroy."
However, in testimony on which the defendants now heavily rely,
Beard also testified that he was only a salesman and that Cross did
not appoint him to be a true vice president, but placed the title of
"Vice President" on Beard’s business cards for appearances. Even so,
Gene Beard clearly admitted that he "was the general manager and
that [he] had the right to do whatever [he] felt was proper." Further-
more, Cross testified that Gene had "total authority" over operations
in the West Virginia facility. Thus, regardless of his title, Gene Beard
was in a position to make the decisions to turn away Unique custom-
ers or send them to Four Jaks. This decision-making power comes
with a fiduciary duty to use it for the benefit of the company.
III.
The defendants also challenge numerous evidentiary rulings of the
district court. We have considered them all and found them all merit-
less. The majority of them do not require discussion. The two most
substantial are the district court’s asserted errors in not forcing
Unique to produce (a) a "report" allegedly created by Unique’s attor-
ney, Marshall Goldberg, and (b) sworn witness statements.
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Cross testified that no written Goldberg report existed, because
Goldberg simply told Cross orally of his investigatory findings. The
defendants proffered no contrary evidence. Indeed, after asking Cross
point blank whether there was a written report, the defendants’ trial
counsel seemed satisfied that no such report existed, remarking "[i]f
they are representing there is no written report, then there is no writ-
ten report." The district court did not err in failing to compel produc-
tion of a nonexistent report.
As for the sworn statements of certain witnesses, defendants did
receive these statements prior to cross-examining Unique’s expert,
Robert Griffith, who had relied on them. Moreover, when the district
court offered the defendants the opportunity to ask for a mistrial, they
rejected that course.* They, therefore, cannot now claim that any
error in failing to provide the witness statements sooner requires
reversal.
IV.
James Pierce also challenges the sufficiency of the evidence
against him. The record reveals ample evidence that he was involved
in the same conspiracy and wrongdoing as the other defendants. For
example, Unique employee Tammy White testified that she was told
to make parts for Four Jaks while on Unique’s payroll, that Pierce
told her that these parts were for Four Jaks, and that Pierce also asked
her to hide "parts that [she] had r[u]n for Four Jaks," so Cross would
not see them. White further testified that she saw Pierce "run" these
same parts himself. Moreover, Pierce told White to take raw materials
from the Unique Balance plant to the Four Jaks plant.
V.
Finally, the defendants challenge the jury verdict on two grounds.
*That is not to say that the district court would or should have granted
a mistrial, but just that the judge did specifically ask, "what’s your rem-
edy now? Are you moving for a mistrial?" To which the defendants’ trial
counsel answered, "No; there is no remedy now."
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First, they contend that the "jury did not understand the word
‘apportion,’" and thus "intended to award a total of $100,000.00 in
this matter," rather than $100,000 against each defendant for a total
of $600,000. The verdict form stated "[w]e find that the plaintiff is
entitled to damages in the following amounts from the following
defendants. (Emphasis added). This language clearly indicates that the
jury meant to hold each defendant liable for the amount of $100,000.
This is especially true in light of the judge’s clarification that the jury
could "apportion the award or not apportion it among the defendants
as you see fit." (Emphasis omitted). For these reasons, we find this
contention meritless.
Second, the defendants maintain that Unique offered no evidence
to sustain a $600,000 verdict. We have searched the record and, with
this argument, we must agree. Unique proffered evidence in the form
of expert testimony, which, if believed, permitted the jury to award
damages in the maximum amount of $559,204. When "a reviewing
court concludes that a verdict is excessive, it is the court’s duty to
require a remittitur or order a new trial." Cline v. Wal-Mart Stores,
Inc., 144 F.3d 294, 305 (4th Cir. 1998) (internal quotation marks
omitted). Because on the evidence presented here, $559,204 is the
"outermost award that could be sustained," id. at 306, we vacate the
damages award and remand for a new trial unless Unique Balance
agrees to remittitur of the $600,000 damages award to $559,204.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
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