The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BOULDER FALCON, LLC, a Utah limited MEMORANDUM DECISION AND
liability company, ORDER DENYING DEFENDANTS’
MOTION FOR JUDGMENT AS A
Plaintiff, MATTER OF LAW, GRANTING
v. PLAINTIFF’S MOTION FOR
ATTORNEY FEES AND DENYING
ROBERT BROWN, an individual, and DEFENDANTS’ MOTION FOR
IFLYAJET, INC., a Georgia corporation ATTORNEY FEES
Defendants, Case No. 2:22-cv-00042-JNP-JCB
v.
District Judge Jill N. Parrish
BOULDER FALCON, LLC, a Utah limited
liability company, BOULDER VENTURES Magistrate Judge Jared C. Bennett
DEVELOPMENT, INC., a Utah corporation,
and JEFFREY M. VITEK, an individual,
Counterclaim Defendants.
Before the court is a Motion for Judgment as a Matter of Law filed by Defendants Robert
Brown (“Brown”) and IFLYAJET INC. (“IFJ”) (collectively, “Defendants”). ECF No. 306
(“Defs.’ Mot.”). Plaintiff Boulder Falcon, LLC (“Plaintiff” or “Boulder Falcon”) opposes the
motion. ECF No. 312 (“Pl.’s Opp.”). Both parties also filed Motions for Attorney Fees. ECF Nos.
296 (Pl.’s Mot. Att’y Fees”), 301 (Defs.’ Mot. Att’y Fees”). For the reasons set forth herein, the
court DENIES Defendants’ Motion for Judgment as a Matter of Law, GRANTS Plaintiff’s
Motion for Attorney Fees, and DENIES Defendants’ Motion for Attorney Fees.
BACKGROUND
This action stems from a breach-of-contract claim and a conversion claim involving a
dispute over a private jet. The conflict centered around the validity of a contract, the Shared
Ownership Agreement (“the Agreement”). ECF No. 297-2 (“Shared Ownership Agreement”). The
Agreement formed a group (“the Group”) that consisted of members Boulder Falcon, IFLYAJET,
and Geyer Aviation, LLC. The Agreement identified the Group as registered owners of an aircraft
(“the Aircraft”), and assigned equity ownership to each member, with Boulder Falcon holding 74.5
percent. Under the Agreement, each member was required to pay monthly installments for the
Aircraft’s operation and maintenance as a percentage of its equity ownership.
The Agreement also contained a purchase option for members of the Group, identifying
Boulder Falcon as the member with the first right to exercise the purchase option. In this lawsuit,
Boulder Falcon alleged Defendants breached the Shared Ownership Agreement by, among other
things, selling the Aircraft to Brittany Enterprises without its permission. Brittany Enterprises then
turned a profit by selling the Aircraft for $2,300,000.
After a five-day jury trial, the jury found Defendants Brown and IFLYAJET liable to
Boulder Falcon for breach of contract and conversion. The jury also found that IFLYAJET is the
alter ego of Brown. The jury awarded $1,400,000 in compensatory damages against IFLYAJET
and $200,000 in punitive damages against Brown.
DISCUSSION
I. DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW
Defendants move for judgment as a matter of law or, in the alternative, a new trial based
on insufficiency of the evidence. Under Federal Rule of Civil Procedure 50, the court may grant
judgment as a matter of law when “a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue . . . .” FED. R. CIV. P. 50(a)(1). Thus, judgment as a matter of law is only
appropriate where “all of the evidence in the record reveals no legally sufficient evidentiary basis
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for a claim under the controlling law.” Bill Barrett Corp. v. YMC Royalty Co., LP, 918 F.3d 760,
766 (10th Cir. 2019) (internal quotation marks omitted).
In evaluating a motion for judgment as a matter of law, the court “draws all reasonable
inferences in favor of the nonmoving party and does not weigh evidence, judge witness credibility,
or challenge the factual conclusions of the jury.” Id. (internal quotation marks omitted).
Accordingly, “[j]udgment as a matter of law is cautiously and sparingly granted . . . .” Id. (internal
quotation marks omitted).
Alternatively, a court “may, on motion, grant a new trial on all or some of the issues . . .
after a jury trial, for any reason for which a new trial has heretofore been granted in an action at
law in federal court.” FED. R. CIV. P. 59(a)(1). “In deciding a new trial motion based on
insufficiency of the evidence, a district court must analyze whether the verdict is clearly, decidedly
or overwhelmingly against the weight of the evidence.” Elm Ridge Exploration Co., LLC v. Engle,
721 F.3d 1199, 1216 (10th Cir. 2013). The court may not grant a new trial due to error “[u]nless
justice requires otherwise.” FED. R. CIV. P. 61. Rather, “the claimed error [must] substantially and
adversely [have] affected the party’s rights.” Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1217
(10th Cir. 2008).
Defendants move the court to vacate the jury’s award of punitive damages against Brown
because the jury failed to award compensatory damages against Brown. Defendants also argue that
the evidence presented at trial was insufficient to support Boulder Falcon’s conversion claim or
breach-of-contract claim. Further, Defendants argue that there is no evidence to support the jury’s
finding that Brown is the alter ego of IFLYAJET or the jury’s award of compensatory damages in
the amount of $1,400,000. The court addresses each argument below.
A. Punitive Damages Award against Brown
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First, Defendants argue that the evidence does not support the award of $200,000 in
punitive damages against Brown. Because punitive damages are recoverable only under Plaintiff’s
conversion claim, the court applies Utah law to this issue. “Under Utah law, if there are no actual
damages, an award of punitive damages is improper.” Kilpatrick v. Wiley, Rein & Fielding, 37 P.3d
1130, 1148 (Utah 2001); see also UTAH CODE ANN. § 78B-8-201(1)(a).
Here, the jury indicated $0.00 in economic damages against Brown on the special verdict
form. ECF No. 290 (“Jury Verdict”) at 4. But the jury did award damages against Brown’s
company, IFLYAJET, and find that IFLYAJET is the alter ego of Brown. Id. at 6. Still, Defendants
argue that “[t]he finding that Brown [is] the alter ego of [IFLYAJET] does not substitute for a
finding of actual damages.” Defs.’ Mot. at 3-4. The court disagrees.
Plaintiff’s alter ego theory against Defendants is governed by Georgia law. See ECF No.
293 (“Jury Instructions”) at 76. Piercing the corporate veil “rests on the notion that a corporate
officer, or owner, who has abused the corporate form by commingling personal and corporate
assets, should be held liable for corporate debts and liabilities.” Pazur v. Belcher, 659 S.E.2d 804,
806-07 (Ga. Ct. App. 2008). This liability theory stems from an abuse of the corporate form, and
personal participation in the breach of contract or tort is irrelevant. See id. Thus, even if the jury
found no personal liability against Brown, Brown could still be held liable for breaches of contract
or torts committed by IFLYAJET by abusing the corporate form.
Defendants argue that piercing the corporate veil “only allows Boulder [Falcon] to pursue
Brown’s assets for [IFLYAJET’s] liabilities.” Defs.’ Mot. at 4. But piercing the corporate veil does
much more than this. A finding of alter ego is a finding of personal liability against the officer for
acts of the corporation. In this case, the jury’s conclusion that IFLYAJET was the mere alter ego
of Brown is a conclusion that Brown is “liable for [IFLYAJET’s] debts and liabilities.” Pazur, 659
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S.E.2d at 806-07. And IFLYAJET’s debts and liabilities include compensatory damages the jury
found against IFLYAJET.
A case decided by the Georgia Court of Appeals is demonstrative of how an alter ego
finding affects an award of damages against multiple defendants. In Paul v. Destito, the court
declined to separate some of the defendants from an award of punitive damages against another
defendant corporation where the jury found the defendants should be treated as alter egos of each
other. 550 S.E.2d 739 (Ga. Ct. App. 2001). Defendants here argue that reliance on this case is
misplaced because it deals with punitive and not compensatory damages. The court disagrees.
Nothing in the case suggests that this method of awarding damages after an alter ego finding would
apply only to punitive and not compensatory damages. Damages against a corporation are
corporate debts and liabilities whether they are compensatory or punitive.
As Defendants note in their reply, the Paul jury specifically found liability against the
defendants on an alter ego theory, which is exactly what the jury found in this case. Given that
finding in Paul, the Georgia court concluded that there was “no basis for separating any of the
companies from the punitive damages award.” Paul, 550 S.E.2d at 748 n.25. The Georgia court
even noted that whether the underlying elements for punitive damages were met for some of the
defendants was irrelevant because “the jury concluded that all corporate and individual defendants
were alter egos of each other and should be treated as the same ‘personality.’” Id. Similarly here,
the jury found that IFLYAJET is the mere alter ego of Brown. Like the defendants in Paul, Brown
is liable for any damages awarded against IFLYAJET regardless of whether he meets the criteria
for those damages. Therefore, the court has no basis in this case to separate the compensatory
damages award against IFLYAJET from Brown.
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Because the jury found that IFLYAJET is the alter ego of Brown, Brown is liable for all
IFLYAJET’s debts and liabilities, including the compensatory damages award. Thus, the finding
of compensatory damages against IFLYAJET supports an award of punitive damages against
Brown.
B. Evidence to Support Plaintiff’s Conversion Claim
Defendants next argue that no reasonable jury could have found that Defendants were liable
for conversion because Boulder Falcon presented no evidence that it had a right to immediate
possession of the plane. The court disagrees.
First, Defendants argue that Boulder Falcon never owned the plane. As stated repeatedly
in court orders, whether Boulder Falcon owned the plane is irrelevant. See, e.g., ECF No. 183
(“MSJ Order”) at 26 (“[A] conversion plaintiff need not show that he possessed title to the chattel,
but must instead only show that he or she is entitled to immediate possession of the property at the
time of the alleged conversion.” (internal quotation marks omitted)). The relevant issue is whether
Boulder Falcon had an immediate right to possess the plane. But even if ownership were required
for Plaintiff’s conversion claim, the result would be the same. The Agreement was titled “Shared
Ownership Agreement” and identified the members as “co-owners of the Aircraft.” Shared
Ownership Agreement at 1. The jury may have therefore reasonably concluded that the Agreement
provided some ownership interest, giving rise to an immediate right to possess the Aircraft.
Defendants argue that the Agreement did not provide any possessory right to Boulder
Falcon because it “conferred the exclusive right to determine movement of the [Aircraft] to the
Manager.” Defs.’ Mot. at 4-5. But this provision does not exclude the right of any member to
immediate possession of the Aircraft. Further, the Agreement itself states that it is a “lease with
purchase option” and identifies Boulder Falcon as the co-owner with the largest initial share of
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equity ownership in the Aircraft. Shared Ownership Agreement at 1. A jury may conclude from
this language that Boulder Falcon had a lease on the Aircraft, giving rise to an immediate right to
possess the Aircraft.
Finally, pursuant to the Agreement, the Aircraft’s home base was in Utah, where Boulder
Falcon was headquartered. The home base was not in Georgia where the other Group members
were located. The Agreement also provided that the home base could not be changed without the
permission of all Group members. From this evidence, as well as the testimony of Boulder Falcon’s
CEO, Jeffrey Vitek (“Vitek”), regarding how he understood the terms of the Agreement, a
reasonable jury may have concluded Boulder Falcon had a right to immediate possession and that
Defendants were liable for conversion. Thus, there is sufficient evidence to support the jury’s
verdict on Plaintiff’s conversion claim.
C. Evidence to Support Plaintiff’s Breach-of-Contract Claim
Defendants also argue that the evidence presented at trial was insufficient to establish
Plaintiff’s breach of contract claim. Specifically, Defendants argue that there is no evidence to
support that there was a valid contract,1 Defendants breached the Agreement, or that Brown agreed
to be bound by the Agreement. The court disagrees.
At trial, the only issue regarding whether a valid contract existed was whether Boulder
Falcon had accepted the Agreement. Vitek testified that he signed the Agreement and had an
assistant mail it to IFLYAJET. A reasonable jury could believe his testimony and determine that
Boulder Falcon assented to the contract. But even if Vitek had not delivered or signed the
1 The court notes that Defendants argue here that the Shared Ownership Agreement is not a valid
contract yet filed a motion for attorney fees under the Shared Ownership Agreement.
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Agreement, a signature was not required for Boulder Falcon to accept the contract. Jury
Instructions at 55. There was also evidence presented that Boulder Falcon performed under the
contract by making monthly payments to IFLYAJET, which the jury could reasonably conclude
manifested an acceptance of the contract. Even Defendants concede that Boulder Falcon was using
the plane and making payments. And the payments aligned with Boulder Falcon’s share of the
operation and upkeep costs under the Agreement, 74.5 percent. This is more than enough evidence
for a jury to find Boulder Falcon accepted the Agreement and thus a valid contract existed.
There was also ample evidence that IFLYAJET breached the Agreement. For example,
evidence presented at trial demonstrated that Defendants failed to register the Agreement with the
Federal Aviation Administration and failed to provide notice that they intended to sell the Aircraft
as required under the Agreement. See Shared Ownership Agreement at 2, 5. Further, the Agreement
explicitly provides that the Manager, Brown, “shall not . . . exercise the purchase option without
the unanimous written consent of the Members.” Id. at 7; see also id. at 3 (“[T]he Manager may
not make any of the following decisions or action without first obtaining the written consent of
Members owning 100% of the Percentage Interests: . . . the Group’s sale, lease, or disposition of
the Aircraft . . . .”). There was no evidence or argument that IFLYAJET even attempted to obtain
the consent of Boulder Falcon before selling the Aircraft to Brittany Enterprises. The Agreement
also requires the Manager to maintain accurate records and take any action necessary “for the
continuation of the Group’s valid existence as registered owners.” Id. at 3. Plaintiff presented
evidence that Defendants failed to make lease payments on the Aircraft and failed to keep accurate
records.
Finally, the jury heard evidence that Brown agreed to be personally bound by the
Agreement. Brown drafted the Agreement that appointed him Manager of the Group. The
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Manager’s duties under the Agreement included overseeing the maintenance and schedule of the
Aircraft, keeping accurate records, and ensuring compliance with regulations. A jury could infer
from this evidence that Brown acquiesced to the terms of the Agreement in his personal capacity
and agreed to be individually bound by the Agreement.
D. Evidence to Support Alter Ego Finding
Defendants next argue that there was no evidence to support the jury’s finding that Brown
was the alter ago of IFLAYJET. But Plaintiff presented a plethora of evidence to show that Brown
failed to maintain corporate formalities for IFLYAJET and may have even comingled assets.
Deposition testimony of IFLYAJET’s accountant and Brown’s wife, Eliza Brown, established that
IFLAYJET failed to keep accurate books and records. In her deposition, she repeatedly testified
that she could not recall events and entries relating to her bookkeeping. Boulder Falcon’s
accountant also testified that she often received inaccurate invoices from IFLYAJET. Further, Eliza
Brown testified that she used IFLYAJET’s business credit cards for personal expenses and there
was evidence presented to the jury that Brown concealed his ownership of the company that
primarily maintained the Aircraft, Turbine Maintenance Group. A jury could find from this
evidence that Brown “disregarded the corporate entity and made it a mere instrumentality for the
transaction of his own affairs.” Jury Instructions at 76.
E. Evidence to Support Amount of Compensatory Damages
Finally, Defendants argue that there is no evidence of damages in the amount of
$1,400,000. But Plaintiff presented evidence that Brittany Enterprises sold the Aircraft, which had
a note payoff of $920,000, for $2,300,000. This would have given Boulder Falcon a profit of
$1,380,000 if given the opportunity, as provided in the Agreement, to pay off the Aircraft’s note.
By breaching the contract and selling the plane to Brittany Enterprises, Defendants prevented
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Boulder Falcon from realizing that profit. Thus, damages in the amount of $1,400,000 were
supported by the evidence presented at trial.
* * *
Because the jury found that IFLYAJET is the alter ego of Brown, an award of compensatory
damages against IFLYAJET supports the jury’s award of punitive damages against Brown. There
is also ample evidence to support the jury’s finding for conversion, breach of contract, alter ego,
and $1,400,000 in compensatory damages. Thus, Defendants have not met their burden in showing
insufficiency of the evidence to support judgment as a matter of law or a new trial. Accordingly,
the court DENIES Defendants’ Motion for Judgment as a Matter of Law and Defendants’ Motion
for a New Trial.
II. MOTIONS FOR ATTORNEY FEES
Both parties also move for an award of attorney fees under the Shared Ownership
Agreement. Under the Agreement, “[i]f an action is brought to enforce or interpret the provisions
and conditions of this Agreement, the prevailing party shall be entitled to recover its actual
attorneys’ fees and costs.” Shared Ownership Agreement at 9. Both parties agree that the
Agreement, including the attorney fees provision, is governed by Georgia law. See also id. (“This
Agreement is governed by, and will be construed and enforced in accordance with, the laws of the
State of Georgia.”). But both parties interpret “prevailing party” differently and argue that they are
entitled to fees as the prevailing party.
A. Boulder Falcon is the Prevailing Party
The court entered judgment on November 5, 2024 “in favor of plaintiff Boulder Falcon,
LLC and against Defendants Robert Brown and IFLYAJET, Inc., who are jointly and severally
liable, in the amount of $1,400,000 in compensatory damages.” ECF No. 295 (“Judgment”).
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Despite the judgment, Defendants argue that they are the prevailing party on Plaintiff’s breach-of-
contract claim because (1) the jury awarded zero damages against Brown and (2) the verdict form
did not specify whether damages were awarded for breach of contract or conversion.
First, the fact that the jury awarded zero damages against Brown is irrelevant. Defendants
cite Benchmark Builders, Inc. v. Schultz for the proposition that a defendant prevails “by not having
any relief imposed against them.” 294 Ga. 12, 14 (2013). But in that case, the court upheld an
award of attorney fees where the defendants prevailed on their counterclaim for breach of contract.
Here, the jury did not find for Defendants on their breach-of-contract counterclaim against Boulder
Falcon. Therefore, Benchmark Builders is not persuasive.
Here, not only did the jury find for Boulder Falcon on its breach-of-contract claim against
IFLYAJET and Brown, it also awarded damages against IFLYAJET and found that IFLYAJET is
the alter ego of Brown. As discussed above, a finding of damages against IFLYAJET is a finding
of damages against Brown because the alter ego finding compels the court to treat Defendants “as
the same ‘personality.’” Paul, 550 S.E.2d at 748 n.25. Thus, the jury’s award of damages against
IFLYAJET is a damages award against Brown.
The failure of the verdict form to specify damages awarded for each claim is also irrelevant.
In this case, there was no difference in injury caused by Defendants’ breach of contract and their
conversion of the Aircraft. Here, Plaintiff alleged that Defendants breached the Agreement and
interfered with its immediate right to possess the Aircraft by selling it without Boulder Falcon’s
permission. And the damages awarded by the jury reinforce this notion. The jury awarded
$1,400,000 in compensatory damages, which is the profit Boulder Falcon could have made had
the Aircraft not been sold to Brittany Enterprises without its approval. This is the sole injury caused
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by Defendants’ conversion and their breach of contract and the only theory of damages that
Plaintiff presented to the jury.
Defendants also suggest that the damages the jury awarded were only for conversion, not
breach of contract. Because Plaintiff is only entitled to an award of attorney fees on its breach of
contract claim, Defendants argue that Plaintiff is not entitled to fees. But even Defendants admitted
throughout this lawsuit that there can be no conversion without a breach of contract because only
the Agreement gave Boulder Falcon the possessory interest in the aircraft. In their objection to
Plaintiff’s special verdict form, Defendants argued that “Boulder’s conversion claim derives
entirely from the right to ownership or the right to immediate possession. Those rights are
dependent on the Shared Ownership Agreement. In other words, there is no scenario where the
jury can determine there was a conversion or award damages for conversion in the absence of an
enforceable Shared Ownership Agreement.” ECF No. 239 at 8. Therefore, the jury awarded
damages for Plaintiff’s breach of contract and conversion claims.
Plaintiff Boulder Falcon is clearly the “prevailing party” under the Shared Ownership
Agreement and is therefore entitled to fees pursuant to the contract. On the other hand, Defendants
are not the prevailing party and are not entitled to recover fees under the contract. The court thus
DENIES Defendants’ Motion for Attorney Fees.
B. Boulder Falcon is Entitled to Collect Actual Attorney Fees
Boulder Falcon moves the court to award it $1,424,619.50 in attorney fees. Under the
Shared Ownership Agreement, the party that prevails in an action to enforce the Agreement is
entitled to “actual attorneys’ fees and costs.” Shared Ownership Agreement at 9. There is no
requirement that the fees be reasonable. However, Defendants argue that Boulder Falcon failed to
apportion its fees between the breach-of-contract claim, the conversion claim, and the unjust
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enrichment claim.2 Boulder Falcon argues that it need not apportion the fees because the
Agreement was central to the dispute and both claims were “so intertwined that work performed
in connection with other claims was necessary as well for the claim on which fees were allowed.”
Pl.’s Mot. Att’y Fees at 3 (quoting Eagle Jets, LLC v. Atlanta Jet, Inc., 820 S.E.2d 197, 204 (2018)).
The court agrees.
As the court noted above, Plaintiff’s conversion claim stems from the rights granted to
Boulder Falcon in the Shared Ownership Agreement. And Defendants have pursued this theory
throughout litigation. Because Plaintiff’s conversion claim derives directly from its breach-of-
contract claim, it would be impossible for Plaintiff to allocate fees between the two claims.
Further, Plaintiff’s unjust enrichment claim also “involve[d] a common core of facts and
related legal theories.” Fatt Katt Enters. V. Rigsby Constr., LLC, 2018 U.S. Dist. LEXIS 250848
(N. D. Ga. 2018). Indeed, the claim for unjust enrichment relied on the jury’s determination as to
whether the Shared Ownership Agreement was a valid contract. Thus, it would be impossible for
Plaintiff’s attorneys to divide the time spent on each claim. In short, all of Plaintiff’s claims stem
from the Shared Ownership Agreement and Defendants’ decision to sell the Aircraft without
Boulder Falcon’s permission.
Because Plaintiff’s claims were so intertwined, it need not allocate fees for each claim. And
under the contract, Plaintiff is entitled to recover actual attorney fees billed in this case. The
declaration of Plaintiff’s lead counsel indicated that the firm who worked on this case billed
Plaintiff $1,424,619.50 in attorney fees to enforce Boulder Falcon’s rights under the Shared
2 Defendants also argue that Boulder Falcon did not allocate its “alter ego claim[].” But alter ego
is not a claim. It is a theory of liability as to Plaintiff’s breach of contract, conversion, and unjust
enrichment claims.
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Ownership Agreement. ECF No. 297 (“Benevento Decl.”) ¶ 14. Accordingly, the court GRANTS
Plaintiff’s Motion for Attorney Fees.
CONCLUSION AND ORDER
For the reasons above, the court DENIES Defendants’ Motion for Judgment as a Matter of
Law (ECF No. 306), GRANTS Plaintiff’s Motion for Attorney Fees (ECF No. 296), and DENIES
Defendants’ Motion for Attorney Fees (ECF No. 301). The court ORDERS Defendants to pay
Plaintiff $1,424,619.50 in attorney fees.
DATED July 16, 2025
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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