Heritage Disposal & Storage, L.L.C., v. VSE Corporation, No. 1:2015cv01484 - Document 156 (E.D. Va. 2017)
Court Description: MEMORANDUM OF DECISION that the jury's award of damages in favor of Heritage on its unjust enrichment claim (Count III) be, and the same hereby is, reduced to $3,496,086.29: and it is further ORDERED that the Court's verdict be, and th e same here is, rendered in favor of Heritage on its quantum meruit claim (Count II); and Heritage be, and the same hereby is, awarded damages on its quantum meruit claim in the amount of $3,496,086.29; and it is further ORDERED that Heritage� 39;s motion for prejudgment interest be, and the same hereby is, DENIED; and it is further ORDERED that judgment be, and the same hereby is, entered in favor of Heritage and against VSE in the amount of $3,496,086.29. Signed by District Judge Anthony J Trenga on 01/24/2017. (jlan)
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Heritage Disposal & Storage, L.L.C., v. VSE Corporation Doc. 156 IN THE UNITED STATES DISTRICT COURT FOR THE EASTEN DISTRICT OF VIRGINIA Alexandria Division HERITAGE DISPOSAL & STORAGE, L.L.C., Plaintif, v. VSE CORPORATION, Deendant. ) ) ) ) ) ) ) ) ) ) Civil Action No. l:15-cv-1484 (AJT/MSN) MEMOANDUM OF DECISION In this diversity breach of contract cse, Plaintif Heritage Disposal and Storage, L.L.C. ("plaintif' or "Heritage") seeks recovery under various legal heories or the storage of commercial grade ireworks. Heritage was hired or that purpose by Deendant VSE Corporation ("deendant" or "VSE"), which was contractually obligated to the Bureau of Alcohol, Tobacco and Firearms ("ATF") to provide that storage ater ATF had seized those ireworks. The case was tried beore ajury on June 27-30, 2016. On June 30, 2016, the jury rened a verdict in avor of plaintif and against defendant on plainti's claims or quantum meruit (Count II) and unjust enrichment (Count III) and awrded damages in the mount of $4,782,265 on each claim [Doc. No. 138]. 1 1 Beore submitting the case to the jury, the Court ranted VSE's motion or judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 as to Heritage's breach of contract claim (Count I) and denied the motion as to Heritage's quantum meruil (Count II) and unjust enrichment (Count Ill) claims. It also denied Heritage's Rule 50 motion as to VSE's airmative deenses of accord and satisaction and unclean hands. VSE withdrew its airmative defense of duress, which the Court, in any event, ound insuicient as a matter of law. The paties areed that the quantum meruit claim was to be adjudicated by the Cout; and the Cout reseved on whether Heritage was entitled to a jury on its unjust enrichment claims. The Cout submitted both claims to the jury. The paties agree that the damages the jury awarded to Heritage or its quantlm meruit and unjust enrichment claims are completely duplicative. Dockets.Justia.com Pending or adjudication by the Court, with the parties' agreement, are VSE's airmative deenses based on (1) accord and satisaction; (2) unclean hands; and (3) the statute of limitations. The prties are also in agreement that Heritage's claim or quantum meruit is to be decided by the Court and that the jury's verdict on that claim is advisory. The paties disagree, however, over whether plaintif had a right to a juy on its unjust enrichment claim; and the Court must thereore decide whether the jury's verdict on that claim is binding or advisory under Federal Rule of Civil Procedure 39 and if advisory, decide that claim together with the quantum meruit claim. Finally, the Court must decide whether Heritage is entitled to any prejudment interest on any judgment that is ultimately entered in its avor and if so, as of what date. As discussed below, based on the evidence presented,2 the Court inds and concludes that (I) the Settlement Areement was efectively cancelled and rescinded ater ATF decided not to award a work order either to VSE or Heritage or the destruction of the seized ireworks that Heritage was storing; and there was, accordingly, no accord and satisaction that bared Heritage's claims; (2) Heritage had a right to a jury ial on its claim or unjust enrichment under the Seventh Amendment and the jury's verdict on that claim is thereore binding on the Court; and (3) Heritage is not bared rom recovery under the doctrine of unclean hands. The Court inds and concludes, however, that Heritage's claims are time-barred with respect to the period beore November 26, 2011, and the awarded damages are accordingly reduced rom $4,782,265 to $3,496,086.29. The Court also concludes that Heritage is not entitled to prejudment interest because Heritage's claims were or an unliquidated debt that was subject to a good aith dispute.3 2 Following the jury's verdict on June 30, 2016, the Court continued the trial as a bench trial on those issues to be decided by the Cout; and neither party presented any additional evidence during that phase of the trial. However, on November 8, 2016, VSE iled a Motion or Leave to File Supplemental Post-Trial Brieing and Evidence [Doc. No. 150). The Cout held a hearing or that motion on November 18, 2016 and then took it under advisement. By separate order, the Cout has denied that motion. 3 Based on this uling, interest will accue as of the date of enry ofjudgment at the judgment interest rate of 6% per annum pursuant to Va. Code Ann. § 8.01-382. See also id. § 6.2-302. 2 As to Heritage's quantum meruil claim, the Court renders its verdict in avor of Heritage, but only or the period ater November 26, 2011, and awards damages, without any prejudgment interest, in the amount of $3,496,086.29, the amount Heritage invoiced to VSE or that period, less payments made. FINDINGS OF FACT ND CONCLUSIONS OF LAW4 A. Findings of Fact 1. In 2007, the Bureau of Alcohol, Tobacco, Firearms. and Explosive ("ATF") seized hundreds of thousands of pounds of illegal ireworks rom a location near Covington, Kentucky, a seizure that came to be known s the "the Covington Seizure." 2. VSE had entered into a prime contract with the United States Deptment of the Treasury, which covered the storage and manipulation of the Covington Seizure (the "Treasury Contract"). The Treasury Contract was a ••cost-plus" contract that allowed VSE to pass through the cost of storage to the Treasury Department, together with an additional ee. 3. In order to provide the storage services required under the Treasury Contract, VSE entered into a subcontract with Heritage with respect to the Covington Seizure. 4. The Covinton Seizure required highly specialized care, with unique handling requirements caused by the magnitude and volatility of those ireworks. 5. A typical warehouse was not suitable or the Covington Seizure, which required a special acility, security, and 24-hour surveillance to ensure its safety. 6. Heritage maintained a state-of-the-at acility to safeguard and destroy ireworks under its care and custody. The facility provided separate bunkers or storage with an electronic 4 Unless indicated otherwise, the statements ofact and legal conclusions stated throughout the Memorandum of Decision are also included in the Court's indings offact and conclusions oflaw pursuant to Federal Rule ofCivil Procedure 52. 3 security system, a secure fenced perimeter, and 24-hour anned security guards. The property is approximately 880 acres with no public access. 7. VSE was able to locate only one other suitable acility or the storage of the Covington Seizure, whose storage fees were nearly twice those of Heritage. 8. When Heritage first took possession of the Covington Seizure in 2007, the ireworks and their packaging were not weighed. Rather, under ATF supervision, the weight of the ireworks was estimated based on the weight listed on some of the boxes of ireworks and the weight attributed to unmarked boxes of ireworks based on the weight listed on boxes judged to be comparable in weight to the unmarked boxes. 9. Heritage and ATF both participated in the process of detenining the weight of the ireworks at the time Heritage took possession; and based on that process, the total weight of the ireworks was calculated to be approximately 872,000 pounds. 10. ATF approved, authorized, and directed Heritage to bill or the storage of 872,000 pounds of ireworks. 11. Once placed within Heritage's storage acilities, ATF's consent was required or any access to or manipulation of the Covington Seizure. 12. Heritage initially billed or its storage service pursuant to a purchase order that had been issued to it and which expired on September 30, 2010 (the .. Purchase Order"). 13. On May 9, 2009, ATF directed VSE to "re-palletize the ireworks [being stored at Heritage] due to safety concens." Pl. 's Ex. 3, at 3. The reconiguration required more storage space to be utilized; and Heritage increased its storage billing rate under the Purchase Order rom $0.10 per pound to $ 0.195 per pound in light of the additional space allocated to the 4 ireworks. Based on that increased rate, Heritage billedVSE $170,000 per month or storage. 14. The Treasury Contract and Heritage's Purchase Order both expired on September 30, 2010. On September 24, 2010, ATF awardedVSE a replacement prime contact or the period beginning October 1, 2010, which also covered the storage and manipulation of the Covington Seizure (the "ATF Contract"). The ATF Contract, however, did not authorize payment or storage on a cost-plus basis, as the Treasury Contract, but rather provided or payment at speciied ates or various categories of items stored; and ATF took the position that the Covington Seizure ell within a category whose storage rate was substantially below Heritage's storage ees under the expired Treasuy Contract and Purchase Order. 15. The ATF Contract was negotiated and issued .ithout Heritage's involvement, knowledge, or consent as to its rate structure. 16. With the knowledge, consent, and at the direction, ofVSE and ATF, Heritage continued to provide storage and manipulation services or the Covington Seizure ater the expiration of the Treasury Contract and the issuance of ATF Contract. 17.VSE and Heritage were never able to agree to a new subcontract with respect to the ATF Contract ater the expiration of the Treasury Contract and the Purchase Order. In that regard, VSE reused to continue the storage payments to Heritage at the same level as under the Treasury Contract; and Heritage did not aree to accept as ull payment the amount thatVSE was paying on a monthly basis. As a result, there was a dispute between the parties concening the amount that Heritage should be paid or storage or the period beginning October I, 20 l O through August 2015, when all of the Covington Seizure had een ransfered out of Heritage's acilities. 5 18. Notwithstanding their dispute over the price of storage, Heritage initially continued to invoice VSE as it did under the Purchase Order. In that regard, it initially billed VSE $170,000 per month, calculated at the rate of $0.195 per pound, or the months of October December 2010. VSE paid Heritage's October and November 2010 invoices, but then, beginning or the period December I , 2010, paid $92,394 per month. 19. Ater VSE reused to continue paying $170,000, Heritage changed its billing rate rom a per pound rate of $0.195 per pound to a square oot storage rate of $12.19; and begining in February 2011, or the monthly period ending January 31, 2011, Heritage billed $206,000 per month or storage services based on its square oot storage rate of $12.19, rather than $170,000 per month at the rate of $0.195 per pound. It also billed that per square oot charge retroactively to the period beginning October 1, 20 I 0. As a result, or the period beginning October 1, 2010, and continuing through September 2012, when a volume of ireworks were transerred out of Heritage's storage acilities, Heritage billed $206,000 per month; and VSE paid $92,394 per month (except or November and December 2010, or which it paid $170,000 per month). 20. In September 2012, approximately 272,000 pounds of ireworks were transered out of Heritage's acilities, reducing the original estimated weight rom approximately 872,000 pounds to approximately 600,000 pounds. 21. Fallowing the September 2012 transer of ireworks, or the period beginning October 1, 2012, Heritage billed $125,069 per month (rather than $206,000), calculated based on $12.19 per square oot of space allocated to the ireworks remaining in storage. VSE paid $60,534 per month through August 2013, and then $57,348 per month through February 2015. 6 22. Beginning in March 2015 and continuing into August 2015, the remaining ireworks were removed rom Heritage's acility and Heritage reduced its billings, and VSE, its payments, accordingly. When actually weighed, the ireworks removed rom March to August 2015 (that is, the ireworks that remained in Heritage's acilities ater the September 2012 transer) weighed less than a total of 385,000 pounds, rather than the approximately 600,000 pounds that remained rom the original estimate of 872,000 ater the September 2012 transer of ireworks out of Heritage's acilities. 23. There is no industry standard or consistent billing method within the ireworks storage industry or storing the type of ireworks that constituted the Covington Seizure. 24. The rate chrged by the only other vendor VSE could identiy that was capable of storing the Covington Seizure in accordance with the requirements set orth in ATF Contract charged a rate of over $24 per square oot, a rate nearly 100% higher than the $12.19 per square oot rate billed to VSE by Heritage. 25. VSE did not object to Heritage's monthly bills except on the grounds that under the ATF contract, VSE could not recover the ull amount of what Heritage had been charging because it had negotiated (without Heritage's involvement or agreement) a price or storage that did not cover what Heitage had been billing, and VSE had been paying, or over 3 years. 26. On October 24, 2013, the parties entered into a settlement agreement with respect to their dispute (the "Settlement Agreement"). Under the Settlement Agreement: a. Heritage accepted as full payment or its storage services the payments that VSE had made. See Settlement Agreement, 1 1. b. Subject to Heritage's right of rescission, Heritage released VSE "or any amount (cost, ee, othewise), in addition [to] the amounts already paid" to Heritage. Settlement 7 Agreement, 1 8; see id 1 I ("[Heritage] releases VSE and waives any and all claims or storage, and related costs, subject to paragraph 2 .... "). c. The parties agreed that "[i]n the event the Covington seizure destruction Order is issued to a subcontractor other than [Heritage], then [Heritage] shall have the right to rescind this agreement in its entirety." Settlement Agreement, 12. d. The parties also agreed that: This Agreement is subject to ATF providing VSE with the destruction order to VSE based on mutually agreed pricing and terms and conditions between VSE and ATF. VSE and [Heritage] agree to cooperate in good aith to acilitate ATF accepting [Heritage] as the destruction vendor pursuant to VSE's prime contract with ATF or the Covington seizure. If ATF approves such destruction order to VSE based on [Heritage] carrying out the destruction, VSE and [Heritage] will enter into the necessary subcontract and purchase order that shall reerence this Agreement and adopt its key terms and conditions. Settlement Agreement, 1 11. e. VSE had an afirmative obligation to negotiate a contract with ATF or the destuction work based on the price that had been negotiated between Heritage and VSE or that work. See Settlement Agreement, , 2. 27. At the time the parties entered into the Settlement Agreement, they had the expectation that ATF would hire VSE to destroy the Covington Seizure, and VSE would, in tn, hire Heritage or that work. See, e.g., Settlement Agreement, Recitals at 1 ("Whereas, ATF is expected to issue VSE a destruction order or ireworks being stored by [Heritage]."). 28. The parties intended that Heritage had the right to rescind the Settlement Agreement if it did not receive a subcontract or the desruction work that the parties anticipated would be awarded to VSE and that Heritage's release of VSE was conditioned on Heritage's receiving that work. 8 29. As pat of ATF's selection process or that destruction work, ATF requested that Heritage demonstrate to ATF the eicacy of its proposed destruction method. Heritage estimated that the requested demonstration would cost more than $100,000 and requested that ATF pay or it. ATF declined to pay or the demonstration and Heritage declined to perfom it. 30. ATF's Statement of Work with respect to its award of the ireworks destruction work speciied that the ireworks be destroyed by using a rotary kiln, a method diferent than that proposed by Heritage. 31. Rather than destroying all of the Covington Seizure remaining at Heritage's acilities ater the September 2012 transer, ATF decided to transer a substantial portion of those ireworks to the China Lake Naval Air Weapons Station in Calionia to be used in military testing activities. 32. The ATF awarded General Dynamics the conract or the destruction of hose ireworks not used at China Lake. General Dynamics perormed the destruction work itself (as opposed to subcontracting the work) using a rotary kiln. As a result, neither VSE nor Heritage was retained or any part of the destruction work. 33. On November 26, 2014, the parties entered into a tolling agreement through March 1, 2015 (the "Tolling Agreement"). In the Tolling Agreement, the parties recited that the Settlement Agreement ••was made subject to a destruction order or the Covinton seizure being issued to Heritage, and which may be rescinded by Heritage if such a desruction order is not issued to Heritage." Def.'s Ex. 191. 34. On January 14, 2015, ater Heritage lened that ATF had decided not to award the desruction work to VSE or to Heritage, Heritage notiied VSE that it was rescinding the Settlement Agreement. 9 35. On February 27, 2015, Heritage iled this action against VSE. 5 36. No later than the end of 2010, VSE was on reasonable notice that the parties had not reached an agreement conceng price and that Heritage expected to be paid an amount greater than what VSE was paying; and with that knowledge, VSE continued to request and accept Heritage's storage services despite the lack of agreement as to price. 37. Heritage had a reasonable expectation of payment beyond that provided by VSE on a monthly basis, either by way of its monthly billings or through the revenue it would receive rom the anticipated destruction work order. 38. Heritage rendered valuable services to VSE or storage of the Covington Seizure or the period Jany 1, 2011 through August 2015, VSE requested and accepted those sevices, nd Heritage provided those service under such circumstances that VSE was reasonably notiied that Heritage, in performing those service, expected to be paid by VSE beyond what VSE had, in act, paid. 39. The reasonable value of Heritage's stoage services is that amount invoiced to VSE based on $12.19 per square oot of storage space allocated to the Covington Seizure. 40. The damages awarded by the jury constitute the aggregate diference between the amount VSE had paid and the amount Heritage had billed since the period beginning October 1, 2010. B. Conclusions of Law 1. The Court has jurisdiction to adjudicate this action and the claims and defenses asseted herein. s Heritage originally iled this action in the United States District Cout or the District of Nebras. which transfered the action to this District on November 9, 2015 [Doc. No.27). 10 2. There was no accord and satisaction that precluded Heritage rom recovery under either its quantum meruil or unjust erichment claim. a. Heritage had the right to rescind the Settlement Agreement in the event that it did not receive a work order or the destruction of the Covington Seizure. 1. VSE has asserted the aimative defense of ..accord and satisaction" based on Heritage's release of VSE under the Settlement Agreement or all claims or unpaid storage service through January 2014 and the absence of any occurrences that allowed Heritage to exercise any right of rescission under the Settlement Areement, speciically ATF's ailure to award the destruction work contract to VSE or a '"subcontractor other than Heritage." 11. Under Virginia law, which govens the interpretation and construction of the Settlement Agreement, when the terms of a contract are clear and unambiguous, a court is required to constue the terms according to the plain meaning. Bridgestone/Firestone, Inc. v. Prince William Square Assocs., 463 S.E.2d 661,664 (Va. 1995). As the Supreme Court of Virginia has reiterated many times: The guiding light is the intention of the paties as expressed by them in the words they have used, and courts are bound to say that the parties intended what the witten instrument plainly declares. Thus, if the intent of the paties can be determined rom the language they employ in their contract, parol evidence respecting their intent is inadmissible. An ambiguity exists when language admits of being understood in more than one way or reers to two or more things at the same time. Golding v. loyd, 539 S.E.2d 735, 737 (Va. 2001) (intenal quotation marks, citations, and alterations omitted); see also Schuiling v. Harris, 747 S.E.2d 833, 836 (Va. 2013) ("We construe the contract as a whole,giving terms their ordinary meaning unless some other meaning is apparent rom the context. The various 11 provisions are harmonized, giving efect to each when reasonably possible, and are construed considering the circumstances under which they were executed and the condition of the parties."). 111. Based on the language and structure of the Settlement Agreement, considered as a whole, the parties unambiguously intended that Heritage could withdraw rom the agreement in the event that Heritage did not receive an order or the destruction work. The Settlement Agreement unambiguously expresses the parties' expectation that ATF would issue to VSE a work order or the destruction of the Covington Seizure nd VSE would, in tum, enter into a subcontract with Heritage or that work. See Settlement Agreement, Recitals, at l ("Whereas, ATF is expected to issue VSE a destruction order or ireworks being stored by [Heritage]."). Under the Settlement Agreement, VSE had an airmative obligation to negotiate a contract with ATF or the destruction work based on the price that had been negotiated between Heritage and VSE or that work, see Settlement Agreement, r 2; and the Settlement Agreement expresses the parties' expectation that Heritage would receive a contract or the destruction work in exchange or its release ofVSE. The paties also areed that Heritage had the right to rescind the Settlement Agreement if it did not receive a subcontract or the destruction work that the paties anticipated would be awarded to VSE and that Heritage's release ofVSE was conditioned on Heritage receiving that work. See Settlement Agreement, l ("[Heritage] releases VSE and waives any and all claims or storage, and related costs, subject to paragraph 2 ...."); id r 2 ("In the event the Covington seizure destruction Order is issued to a subcontractor other than 12 [Heritage], then [Heritage] shall have the right to rescind this agreement in its entirety."). 1v. Although paragraph 2 does not explicitly state that Heritage's right of rescission is triggered in the event that VSE does not receive the destruction work order, the parties clearly expressed that intent and understanding in pararaph 11, which made the Settlement Agreement "subject to ATF providing VSE with the destruction order to VSE based on mutually agreed pricing and terms and conditions between VSE and ATF." Under Virginia law, the parties' agreement to make the Settlement Agreement "subject to" VSE's receiving the destruction work order rom ATF conditioned the enorceability of the Settlement Agreement on the happening of that event. See Golding, 539 S.E.2d at 738, and cases cited therein.6 The net result of these mutually dependent contractual undertakings and agreements is that Heritage had the right to undo the Settlement Agreement if it did not receive the destruction work order, either because ATF did not provide the destruction work to VSE or because VSE, having received the destruction work rom ATF, did not enter into a subcontract with Heritage or that work. For these reasons, ater construing the Settlement Agreement as a whole and giving its terms their ordinary meaning, the Court concludes that the parties' intent is clear and unambiguous: Heritage's retention or the desruction work was a condition to Heritage's being bound by the Settlement Agreement. v. Altenatively, were the Court to conclude that the Settlement Agreement is ambiguous as to the parties' intent, the Court inds rom the parol evidence that the parties intended that Heritage's retention or the destruction work was a condition to Heritage's being bound by the Settlement Areement. In that regard, the Court inds 6 VSE argues that paaraph l l was included solely or VSE's beneit. The Coun inds no suppot or that position. 13 that the paties understood that Heritage was giving up its claims in exchange or the uture destruction work, in the absence of which its claims could be revived. For example, VSE testiied at trial, through the deposition of its designated corporate representative, that the concept underlying the Settlement Agreement was that Heritage would "let the historical dispute [over the storage costs] go if it got the destruction order," then estimated to be worth approximately $3 million. Tr. at 170. The parties' intent and understanding was urther relected in the Tolling Agreement dated November 26, 2014, which recited that the Settlement Agreement "was made subject to a desruction order or the Covington seizure being issued to Heritage, and which may be rescinded by Heritage if such a destuction order is not issued to Heritage." Def.' s Ex. 191. b. Heritage efectively rescinded the Settlement Agreement. 1. Heritage provided clear and unequivocal notice of rescission. Heritage's January 14, 2015 rescission letter unequivocally states that "Heritage hereby exercises its right to rescind the Settlement Agreement in its entirety, in accordance with paragraph 2 of the Settlement Agreement and other applicable law. The Settlement Agreement is hereby rescinded." Pl.'s Ex. 32. In support of its position that Heritage atally equivocated by attempting to aim aspects of the Settlement Agreement in order to retain beneits under it, VSE points to Heritage's statement in its rescission letter that "[b]y participating in the manipulation and preparation of any portion of the Covington materials or movement to another storage acility, Heritage does not intend to waive, release, or otherwise alter its rights under the Settlement Areement or any related contract." But any reasonable and air reading of Heritage's notice of 14 rescission conins that it "'convey[ed] an unquestionable purpose to insist on cancelation" of the Settlement Agreement. State Farm Mui. Auto. Ins. Co. v. Pederson, 41 S.E.2d 64, 67 (Va. 1947). Heritage's relied upon statement, read within the context of the circumstances under which it was made, simply makes clear that it was, in act, not waiving its right to rescind the Settlement Agreement because it had agreed to transer the ireworks or receive payment or its necessary eforts in transerring the ireworks to another acility. 11. Heritage did not retain or receive beneits under the Settlement Areement such that the efectiveness of its rescission was vitiated. VSE irst points to the three months of storage ees that VSE paid in advance under the Settlement Agreement, but, as VSE's Chief Financial Oicer testiied, those advances had been efectively recaptured, or "caught up," when VSE withheld certain payments to Heritage in 2014, long beore the January 14, 2015 rescission letter. Tr. at 603. VSE next points to VSE's continuing eforts to advocate on Heritage's behalf or additional work; but there is no evidence that Heritage claimed that VSE had a continuing obligation to advocate on its behalf ater its rescission; and with Heritage's storage claims revived, VSE understandably would have seen its own best interests advanced through the conduct it now relies on to challenge Heritage's rescission of the Setlement Agreement. In any event, under Virginia law. rescission does not require restoration that is "[a]bsolute and literal," but rather that which is "reasonably possible and demanded by the equities of the case." Saunders v. Gen. Servs. Corp., 659 F. Supp. 1042, 1057 (E.D. Va. 1987) (alteation in original) (quoting Edmunds v. Chandler, 127 S.E.2d 73, 78 (Va. 1962)). Here, the Court inds nd concludes that restoration of the status quo 15 ante was efected to the extent "reasonably possible and demanded by the equities of the case." 111. The prevention doctrine did not preclude Heritage rom exercising its right of rescission. Under the prevention doctrine, a contractual party waives or excuses the nonoccurrence of a condition if it ''prevents or hinders ulillment of [the] condition." Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 717, 725 (4th Cir. 2000). "It requires that the conduct[] 'contributed materially' to the non-occurrence of the condition." Id "However, it is settled that only 'active conduct of the conditional promisor, preventing or hindering the ulillment of the condition' excuses nonulillment of the condition." LMP Holdings v. PLY Enterprises, No. 3:12-cv440, 2012 WL 4344302, at *4 (E.D. Va. Sept. 21, 2012) (quoting Parrish v. Wightman, 34 S.E.2d 229, 232 (Va. 1945)). For this reason, the relied upon conduct must be either in breach of some duty or, at least, inequitable or unreasonable in some material respect. See SSMC, Inc., . V v. Stefen, 102 F.3d 704, 710-11 (4th Cir. 1996); Restatement (Second) of Contracts § 245 & cmt. a (1981); see also Moore Brothers Co., 207 F.3d at 725 (upholding the application of the prevention docrine where deendants actively misled lenders about the cost of a design). Here, Heritage's reusal to demonstrate its method of destuction at its own substantial expense, with no assurance of receiving the destruction work, was not improper under the circumstances. In that regard, Heritage did not breach any explicit contractual or other duty. The parties had negotiated the price at which Heritage would perorm that destruction work under a subcontract rom VSE, as well as what would trigger a right of rescission; and there is no evidence that the parties contemplated that Heritage 16 would incur a substantial demonstration expense as part of its contractual duty of "cooperation." In any event, ATF made the decision not to destroy all of the ireworks but only that substantially smaller portion of the ireworks that were not used or testing at the China Lake acility. The applicable Statement of Work also speciied that the destruction of any ireworks would be accomplished through the use of a rotary kiln,a piece of equipment Heritage did not have,and which General Dynamics, in act,used to destroy the ireworks not destroyed in testing. See Def.'s Ex.180; Tr.669-74. 7 3. Heritage had a Seventh Amendment right to a jury trial on its unjust enrichment claim. a. The Seventh Amendment provides in relevant part: "In Suits at common law ...the right of trial by jury shall be preserved ....'' U.S. Const.amend. VII. The Amendment guarantees that a party in a civil case has a right to a juy trial if its cause of action is one that was cognizable in the courts of law in 1791 or is a moden-day analog to such a cause of action. See Graninanciera, S.A. v. Nordberg, 492 U.S. 33, 40-41 (1989). To detemine whether a right to a juy trial existed, the Supreme Court has interpreted "Suits at common law " to mean "suits in which legal rights were to be ascertained and detemined,in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Id. (quoting Parsons v. Bedford, 3 U.S. (Pet.) 433,447 (1830)) (emphasis added). b. In Virginia,a claim or unjust enrichment may in substance be based on either a claim deemed "legal," such as a claim or payment of goods or sevices, or "equitable," such as a claim or restitution; and the action of assumpsit developed as the om of action by 7 The paties agree that there is no Seventh Amendment right to a juy trial or the quantum meruit claim (Count II). See [Doc. No. 116, at I; Doc. No. 144, at 17]. The Cout thereore expresses no opinion as to whether there is a Seventh Amendment right to a juy on a claim or quantum merul. 17 which to recover on '"legal" claims based on unjust enrichment. See In re By ista of irginia, Inc., No. 2:09-cv-46, 2009 WL 2900040, at*5 (E.D. Va. June 2, 2009) ("An action or unjust enrichment is the moden version of the common law action of assumpsit or money had and received . . ..") (quoting Liebau v. Seven Oas Limited Partnership, No. 118066, 1991 WL 834960, at*1 (Va. Cir. Ct. May 9, 1991)); John C. Holland Enterprises, Inc. v. J.P. Mascaro & Sons. Inc., 653 F. Supp. 1242, 1246 (E.D. Va.) ("The action or unjust enrichment is known in Virginia law as an action of assumpsit or money had and received.") (intenal quotation marks omitted), afd, 829 F.2d 1120 (4th Cir. 1987); Belcher v. Kirwood, 383 S.E.2d 729, 730 (Va. 1989) ("Although this case is now a suit in equity, Kirkwood's claims are cogniable at law, even if based on the theory of unjust enrichment."); Ciy of Norfolk v. Nofolk Cy., 91 S.E. 820, 821-22 (Va. 1917) (explaining the action of assumpsit with respect to express contract, implied contract in act, and implied contract in law); Eppes· xecutors v. Cole, 14 Va. 161, 167, 169 (1809); 1-12 Virginia Remedies§ 12.03 (2015) (describing Virginia courts of law's development of implied contracts based on equitable principles); id. § 12.04 ("'[A]n action on contracts implied in act or the use of land was reconized rom the earliest days of the Commonwealth.") (citing Raven Red Ash Coal Co. v. Ball, 39 S.E.2d 231, 233-34 (Va. 1946)); see also Granlnanciera, 492 U.S. at 43 ("In England, long prior to the enactment of our irst Judiciary Act, common law actions of trover and [assumpsit or] money had and received were resorted to or the recovery of preferential payments by bankrupts.") (citing 18th Century English cases). c. Although courts oten reer to unjust enrichment as a doctrine based on equiy, there was, at the time the Seventh Amendment was ratiied, a general recognition that the action of 18 assumpsit was premised on a legal obligation to pay under an implied contract. See Kremers v. Coca-Co/a Co., 714 F. Supp. 2d 912,919 n.4 (S.D. Ill. 2009) ("Although unjust enrichment is spoken of commonly as 'equitable,· this is so chiely in the sense that the doctrine is addressed to matters of ainess; historically, the roots of unjust enrichment are in law, speciically,the writ of assumpsit."); see also Archawski v. Hanioti, 350 U.S. 532,534 ( 1956) ("Lawyers speak of the obligation in terms of indebitatus assumpsit, a concept whose tortuous development gave expression to 'the ethical character of the law.' As Mr. Justice Holmes once put it, 'An obligation to pay money generally is enorced by an action of assumpsit, and to that extent is reerred to a contract,even though it be one existing only by iction of law."') (citations omitted); Kern v. Freed Co., 299 S.E.2d 363,364-65 (Va. 1983) ("It is true the law will imply a promise to pay or goods received. However,this implied or quasi-contract is based on equitable principles. It rests upon the doctrine that a man shall not be allowed to enrich himself unjustly at the expense of another.") (citing American Ry. x. Co. v. Downing, 111 S.E. 265,268 (Va. 1922), and Ciy of Norfol. 91 S.E. at 821-22). d. Heritage's unjust enrichment claim is based on an alleged ailure to pay the proper amount or services and physical space provided, rather than,or example,an inherently equitable claim, such as a claim or restitution. See. e.g., .S. ex rel. Drakeford v. Tuomey Healthcare System, 675 F.3d 394,403 n. 15 (4th Cir. 2012),and cases cited therein. Heritage's unjust enrichment claim would thereore all within the category of legal claims included within the action of assumpsit at the time the Seventh Amendment was ratiied. 19 e. Heritage thereore had a right to a jury trial or its unjust enrichment claim under the Seventh Amendment, and the jury's verdict is thereore binding on the Court rather than advisory. See Fed. R. Civ. P. 39. 4. Heritage is not precluded rom recovery under the doctrine of unclean hands. a. The doctrine of unclean hands is an afirmative defense that prevents a party's recovery on an equitable claim if the party "has been 'guilty of any inequitable or wrongul conduct with respect to the transaction or subject matter sued on."' Worldcom, Inc. v. Boyne, 68 F. App'x 447,451 (4th Cir. 2003) (quoting Richards v. Musselman, 267 S.E.2d 164, 166 n. 1 (Va. 1980)); see ienna Metro LLC v. Pulte Home Corp., 786 F. Supp. 2d 1076, 1084 (E.D. Va. 2011) ("Unclen hands prevents a party rom obtaining equitable relief because of that party's own inequitable conduct.") (citing Brown v. Kittle, 303 S.E.2d 864, 867 (Va. 1983)). "[A] deendant raising an unclean hands deense must demonstrate a close nexus between a party's unethical conduct and the transactions on which hat party seeks relief." Worldcom, Inc., 68 F. App'x at 451 (intenal quotation marks omitted). b. The heart of VSE's unclean hands defense is that Heritage "alsiied the quantity of ireworks that it stored or VSE and the United States govenment." [Doc. No. 144 at 13.] As stated above, when Heritage irst took possession of the ireworks in 2007, he ireworks were not weighed, but were estimated, under ATF supervision, to weigh approximately 872,000 pounds, an estimate that ATF approved or billing purposes. In September 2012, approximately 272,000 pounds of ireworks were transferred out of the Heritage storage acilities, leaving roughly 600,000 rom the originl estimate. When those remaining ireworks were weighed at the time they were transered out of 20 Heritage's acilities between March and August 2015, they weighed less than 400,000. Based on these igures, VSE contends that Heritage overcharged VSE and the govement or some 200,000 pounds of ireworks rom 2007 through August 2015 and is now barred rom obtaining any relief. It also claims that Mark Vess, Heritage's President, pejured himself at trial when he testiied that the discrepancy in weights was attributable to water weight that had evaporated over time and that the weights recorded in 2013 ater an actual weighing reflected "net explosive weight," that is, the weight of the explosive material within the ireworks, rather than gross weight. c. The basis or VSE's perjury claim comes principally rom the testimony of Vess' ex-wife and the omer President of Heritage, Bonnie Bilderback. She testiied that Vess devised the overcharging scheme and told her that if he were ever caught, his excuse would be that the ireworks were wet when irst obtained or storage. Much of this testimony nd evidence revolved around Deendant's Exhibit 265, introduced through Bilderback, which is a Master Inventory spreadsheet prepared by Vess in 2013. The document was not produced in discovery, 8 but ather ound by Bilderback in documents she had personally retained. Bilderback contacted VSE and provided a copy of the document to VSE 10 days beore trial, ater Vess reused her demand that he pay her $1 million in various oms of compensation in connection with their divorce proceedings. Althouh the jury was not instructed on the deense of unclean hands (the paties having agreed that this aimative deense was or the Court to decide ater verdict, if necessary), VSE was permitted to argue this evidence to the jury with respect to both the quantum meruil claim and the unjust enrichment claim, as well as Vess' credibility generally. 8 VSE points to Heritage's ailure to produce this document in discovery, but VSE has not shown that this document was within the scope ofany ofVSE's document discovery requests. 21 d. Based on all the acts and circumstances, the Cout inds and concludes that VSE has not proven its ainative deense of unclean hands. 1. ATF and VSE knew that the weight of the ireworks initially used or billing puposes was based on estimates at intake. VSE also knew that ATF had approved that estimate or billing purpose and had instructed Heritage to use the weight at intake or billing purposes throughout the storage process. See Tr. 690-92; De. 's Ex. 125. Those billing instructions were never conditioned on or qualiied by an actual weighing of the ireworks, nor were they later modiied or rescinded based on the weighings on which VSE relies. ATF approval was required or any manipulations or weighing of the ireworks; and in act, there is no evidence that the ireworks were ever weighed or the purpose of Heritage's billings. 11. As early as 2009, ater the ireworks were "re-palletized," the storage ees apper to have been driven, not by gross weight, but by space allocated. The space allocated or storage does not appear to have been alsiied in any way; and when Heritage began billing in 2011 expressly by the square oot of space allocated to the ireworks, its storage charges increased. By the time Deendant's Exhibit 265 had been prepared in late 2013, when VSE claims that Vess knew the earlier weight estimate was incorect, Heritage had been billing or storage by the square oot, not weight, or over 2 years at a rate, however established, that was not excessive or inlated relative to the only identiied available altenative, which would have charged on a square oot basis nearly twice Heritage's charge. m. With respect to Vess' alleged perjury during the trial, Deendant's Exhibit 265 had not been previously marked, admitted, or produced in the litigation, and Vess testiied 22 in rebuttal shortly after VSE introduced its Exhibit 265 through Bilderback. Even were Vess' testimony inaccurate as to whether the listed weights were gross or net explosive weight, the Cout cannot conclude under the circumstances that Vess provided pejured as opposed to mistaken testimony concening his on-the-spot explanation of that document. e. The Court is also bound by the holding in Dairy ueen, Inc. v. Wood, 369 U.S. 469,479 (1962), which gives the jury's actual determinations controlling weight where those acts are necessary to both legal and equitable claims. Although the jury was not instructed explicitly on the doctrine of unclean hands, it was instructed on the elements of unjust enrichment, which includes as an element that '"defendant accepted or retained the beneit under circumstances which would make it inequitable or defendant to retain the beneit without paying or its value." The jury heard the evidence pertaining to Heritage and Vess' allegedly improper conduct, as well as the testimony of Bilderback, and ater assessing that evidence and the witnesses' respective credibility, awarded the damages Heritage requested based on its per square oot charge. The jury, thereore, necessarily ound that under the circumstances, it would be '"inequitable" or VSE not to pay Heritage's invoiced storage chrges and implicitly rejected VSE's claims that Heritage and Vess were engaged in a raudulent billing scheme. Although the Cout independently inds and concludes that Heritage did not engage in inequitable conduct that was so connected to its claims as to preclude recovery under the doctrine of unclean hands, VSE's unclean hands deense is fundamentally at odds with the jury's binding verdict on Heritage's unjust enrichment claim. 23 5. Heritage's quantum meruit and unjust enrichment claims are barred by the applicable statute of limitations or the period beore November 26,2011. a. Under Virginia law, a three-year statute of limitations applies to plaintifs quantum meruit and unjust enrichment claims. See Va. Code Ann.§ 8:01-246(4). Plaintif iled this action on February 27, 2015. The parties entered the Tolling Areement, under which any applicable limitations period was tolled rom November 26, 2014 through March 1, 2015 [Def.'s Ex. 191]. Heritage contends that none of its claims are time bared because (1) Heritage's obligation to provide storage sevices were continuing and indivisible and under the continuing undertking doctrine,the limitations period did not begin to run until those services were complete; or altenatively,(2) the parties' Settlement Agreement tolled the statute during the time it was operativeOctober 24, 2013 to January 14,2015. For the reasons stated below, the applicable statute of limitations ws not tolled based on any of these contentions; and Heritage's quantum meruit and unjust enrichment claims are thereore barred by the applicable statute of limitations or the period beore November 26, 2011. b. The continuing undertaking doctrine is inapplicable. 1. "As a general rule,the statute of limitations begins to run against a cause of action at the time of its accrual." Harris v. K & K Ins. Agency, Inc., 453 S.E.2d 284,286 (Va. 1995)(quotingMcCormickv. Romans, 198 S.E.2d 651,654 (Va. 1973)). For quasi-contract claims such as quantum meruit and unjust enrichment,a cause of action accrues when the money due is not paid. See, e.g., Lismont v. Alexander Binze/ Corp., No. 2:12-cv-592,2013 WL 6095461,at *13 (E.D. Va. Nov. 18, 2013) ("The unjust enrichment begins to accrue at the moment he expected 24 compensation is not paid.")(intenal quotation marks omitted); Belcher, 383 S.E.2d at 731. Virginia law recognizes a limited exception to this general rule the continuing undertaking doctrine-"with regard to a continuous or recurring course of professional services related to a particular undertaking." Harris, 453 S.E.2d at 286. Where this exception applies, the statute of limitations begins to run when the sevices or the particular undertaking end. Id. Virginia courts "have applied the doctrine in cases stating claims of breach of contract or negligence involving the proessional services of physicians, attoneys, and accountants." Id It is applicable only where the contract is indivisible and where the nature of the undertaking at issue requires continuing work by the service provider. See State Analysis, Inc. v. Am. Fin. Servs. Assoc., 621 F. Supp. 2d 309, 322(E.D. Va. 2009); Harris, 453 S.E.2d at 286-87; see also Hunter v. Custom Bus. Graphics, 635 F. Supp. 2d 420,431 n.12(E.D. Va. 2009)(situations where the doctrine is applicable •·are extremely limited"). 11. Plaintif argues that Virginia cots have applied the doctrine outside of the context of proessional services by a physician,attoney, or accountant. For example,plaintif points to Allen F Johnson & Associates v. Port Security International, LLC, 429 F. App'x 281, 283-85(4th Cir. 2011)(per curiam), pertaining to a consulting services agreement that was deemed indivisible, and the general pronouncements of the Supreme Court of Virginia in Sufolk Ciy School Board v. Conrad Bros., 495 S.E.2d 470, 472-73(Va. 1998), which aimed "the common law ule permitting a party to an indivisible executory contract to elect between pursuing his remedy when an action which would constitute a breach occurs or awaiting the time ixed by the 25 contract or ull and inal perormance." These cases also note, however, '"the general rule that an installment contract is considered divisible" and highlight that divisible contracts have payments due at ixed times or discrete periods. See Allen . Johnson & Assocs., 429 F. App'x at 283-84 (citing Jones v. Morris Plan Bank, 191 S.E. 608, 609 (Va. 193 7)); Sfolk City Sch. Bd, 495 S.E.2d at 4 73 n.4. 111. As an initial matter, Heritage has cited no case where the docrine was applied to a quantum meruit or unjust enrichment claim, nor has the Cout identiied one. But Heritage's storage obligation, to the extent it is analogous to an executory contract, was "divisible," rather than "indivisible." Heritage invoiced VSE monthly or the irework storage; nd payment on each month's storage was due and owing as of the date speciied on the invoice. Even assuming that Heritage could not remove the ireworks rom its storage without the consent of ATF, this was not a pay-by-the undertakingjob; there is no dispute that payment was due at ixed times and derived rom sevices or discrete intevals. See Allen . .Johnson & Assocs., 429 F. App'x at 284. Under these circumstances, the Court concludes that the continuing underking doctrine is inapplicable. c. The Settlement Agreement does not toll the statute of limitations. 1. Plaintif concedes, as it must, that the Settlement Agreement did not contain a tolling provision. In act, ater the parties entered into the Settlement Agreement, they entered into the Tolling Agreement, which speciically desinated the period during which the statute of limitations was suspended-November 26, 2014 to March l, 2015. Nevetheless, without disputing that the parties had reached a deinitive agreement concening the tolling of the applicable limitations period, plaintif 26 contends that because it rescinded the Settlement Agreement, the Court should toll the statute of limitations in order to "retun Heritage to its legal status at the time the Settlement Agreement was signed." [Doc. No. 145 at 11.] The Court has the ability to toll the statute in these circumstances, Heritage contends,by virtue of its equitable powers "to 'equitably adjust [the parties'] interests under the circumstances of the case.'" Id. But Virginia courts strictly enorce statutes of limitations absent a clearly created exception. Casey v. Merck & Co., 722 S.E.2d 842, 845 (Va. 2012). "'[A]ny doubt must be resolved in avor of the enorcement of the statute.'" Id. (alteration in original) (quoting Arrington v. Peoples Sec. Lfe Ins. Co., 458 S.E.2d 289,291 (Va. 1995)). The Supreme Court of Virginia has also made clear that there would be ew circumstances that would allow or the equitable tolling of a statute of limitations. See id. The Cout concludes based on Virginia law that the statute of limitations is not equitably tolled where, as here, the parties ailed to include a tolling provision in a settlement agreement that was rescinded. The Court thereore declines to exercise any authority or discretion it may have to toll the applicable statute of limitations based on the parties' Settlement Agreement. d. VSE is not precluded rom relying on a statute of limitations defense under the doctrine of equitable estoppel. 1. Under Virginia law, to invoke equitable estoppel a party must prove "by clear, precise, and unequivocal evidence" that (1) a "material act was falsely represented or concealed"; (2) the "representation or concealment was made with knowledge of the act"; (3) the "party to whom the representation was made was ignorant of the truth of the matter"; (4) the "representation was made with the intention that the other party 27 should act upon it"; the "other party was induced to act upon it"; nd (6) the "party claiming estoppel was misled to his injury." Boykins Narrow Fabrics Corp. v. Weldon Rooing & Sheet .,fetal, Inc., 266 S.E.2d 887, 890 (Va. 1980). There is no evidence suicient to establish any of these elements. Plaintif argues that equitable estoppel does not require deceit; but even accepting that proposition,9 plaintif has not identiied, much less proven by clear evidence,that there was a material act that was "alsely represented or concealed." Boykins Narrow Fabrics Corp., 266 S.E.2d at 890. 6. Heritage is entitled to recover on its quantum meruit claim, and the Court awards damages in the amount of $3,496,086.29. a. Under Virginia law, "' [w]here the parties contract or the doing of certain work, and the work is done and accepted, nd it appears that there was a misundersanding as to the price to be paid or it, the law rejects the understanding of each, and awrds reasonable compensation.'" Marine Dev. Corp. v. Rodak, 300 S.E. 2d 763 (Va. 1983) (quoting Brakenseik v. Shafer, 457 P.2d 511, 514-15 (Kan. 1969)). "The measure of recovery [on a quantum meruit claim] is the reasonable value of the services perfoned, nd not the amount of beneit which actually accrued rom them to him or whom they were performed," less "any beneit that has accrued to the plaintif himself by reason of the work." Hendricson v. Meredith, 170 S.E. 602,605 (Va. 1933) (intenal quotation marks omitted). Accordingly, in addition to establishing that the parties ailed to reach an agreement on price, in order to prevail on its quantum meruit claim, Heritage must prove 9 The Supreme Cout of Virginia has "observed that with respect to the estoppel ... which afects the title to real estate, there must be the express intention to deceive, or such careless and culpable negligence as amounts to consructive raud." Moorman v. Blacstock, Inc., 661 S.E.2d 404, 411 (Va. 2008) (intenal quotation marks omitted). 28 that: (1) Heritage rendered valuable services to the VSE; (2) VSE requested and accepted those sevices; and (3) Heritage provided those service under such circumstances that VSE was reasonably notiied that Heritage, in peroning those sevice, expected to be paid by VSE. If successul, Heritage is entitled to the reasonable value of those services. 10 b. VSE argues that Heritage had no reasonable expectation of payment beyond that which VSE had paid on a monthly basis because VSE had made clear that it did not intend to pay any more while Heritage continued to provide sevices. But that argument ignores that recovery based on quantum meruit was established by the courts precisely or circumstances such as those presented in this case, where the parties are in agreement that the sevices are to be provided and accepted even though the parties have not agreed on price and have made clear their respective, though conlicting, positions concening what is an appropriate price. That remedy is paticularly appropriate here, where, as the parties recognized, VSE had a contractual obligation to store the ireworks, and the ireworks could not be moved without ATF's consent. Under the circumstances of this case, there was an implied contract to pay the reasonable value of those storage sevices. c. Based on the evidence presented, and the Court's actual indings, as set orth above, the Court inds in avor of Heritage on its claim or quantum meruit. Heritage rendered valuable sevices to VSE or the storage of the Covington Seizure or the period beginning October 1, 2010 through August 2015; VSE requested and accepted those services, and Heritage provided those sevice, under such circumstances that VSE was reasonably notiied that Heritage expected to be paid by VSE beyond what VSE had, in 10 The juy was instructed on these elements when the quantum meruit claim was submitted to it or an advisoy verdict. 29 act,paid,either by way of its monthly billings or through the revenue it would receive rom the anticipated destruction work order. The reasonable value of Heritage's storage sevices is that amount invoiced to VSE based on $12.19 per square oot of storage space allocated to the Covington Seizure. The Court accordingly renders its verdict in Heritage's avor on its quantum meruil claim and awards damages in the amount of $3,496,086.29. 11 d. In assessing the reasonable value of Heritage's storage sevices, the Court has considered the nature of those sevices, the availability of altenative suppliers of comparable storage services,and the cost of comparable services rom other providers. In that regard, as VSE recognized,storage of the Covington Seizure was of a "highly specialized nature," that required "the utmost care," with "unique handling requirements caused by the magnitude and volatility of those ireworks." Pl.'s Ex. 3. A typical warehouse was not suitable or the Covington Seizure,which required a special acility,security, and "24 hour surveillance ... to ensure safety of the seizure." Id. As VSE also recognized, Heritage maintained a state-of-the-art acility to saeguard and destroy ireworks under their care and custody. The acility provided separate bunkers or storage with n electronic security system,a secure enced perimeter,and 24-hour armed security guards. The property is approximately 880 acres with no public access. Id. e. There were also limited altenatives to Heritage's acility, and those that were available charged rates substantially higher than Heritage's. VSE had solicited quotes rom other vendors to ascertain the type of billing rates that are standard in the industry or the storage of ireworks (i.e., per pound,bunker, or square oot) and could not identiy a 11 This amount of damages is limited to the period ater November 26, 2011, as Heritage's quantum meruit claim or the period beore November 26, 2011 is also time-barred. 30 consistent billing method that providers used to bill or storing the type of ireworks that constituted the Covington Seizure. Pl.'s Ex. 3. In act, VSE had determined that the '"[o]nly other vendor identiied that is capable of storing [the type of ireworks included within the Covington Seizure] in accordance with the [ATF] SOW [charges] a rate of $24.22 per square oot[,]" a rate nearly 100% higher than the $12.19 per square oot rate billed to VSE by Heritage. Id. Based on the evidence presented, the reasonable value of Heritage's storage services is that amount invoiced to VSE based on $12.19 per square oot of storage space allocated to the Covington Seizure. 7. Heritage is not entitled to prejudgment interest on its damages award. a. Heritage seeks prejudgment interest on the jury's verdict dating back to October 2010. Heritage's claim or prejudgment interest in this diversity case is govened by Virginia law. See, e.g., Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614,633 (4th Cir. 1999); Wells Fargo Equip. in., Inc. v. State Farm ire & Cas. Co., 823 F. Supp. 2d 364, 366 (E.D. Va. 2011). Under Virginia law, the trial court "may provide or interest on any principal sum awarded, or any part thereof, and ix the period at which the interest shall commence." Va. Code Ann.§ 8.01-382. An award of prejudgment interest has a statutory minimum rate of six percent. Id § 6.2-302. Whether and or what period to grant such n award are decisions committed to the trial court's discretion. See, e.g., Hitachi Credit Am. Corp., 166 F.3d at 633; Dairyland Ins. Co. v. Douthat, 449 S.E.2d 799, 801 (Va. 1994). A court's discretion is guided by balancing the equities of each case-in particular, the desire to make the prevailing party whole, including compensation or its lost ability to use the money to which it was rihtully entitled, with the losing party's right to litigate a bona ide legal dispute. Wells Fargo Equip. in., Inc., 31 823 F. Supp. 2d at 366-67. However, "[g]enerally, prejudgment interest is not allowed on unliquidated damages in dispute between the parties." Advanced Marine Enters. v. PRC Inc., 501 S.E.2d 148, 160 (Va. 1998). b. Here, there was a long stnding and bona ide dispute regarding the amount VSE owed to Heritage or each month of its storage services. The parties never came to an agreement with respect to those services; and the amounts claimed under theories of quantum meruit and unjust enrichment were unliquidated, as there was no express contract govening price. In these circumstances, there is no entitlement to an award of prejudgment interest; and the Court concludes in its discretion that an award of prejudment interest on Heritage's unliquidated claim that was the su ject to a good aith dispute is not waranted under all the circumstances. CONCLUSION For the reasons stated above, the Court inds and concludes that: (1) the Settlement Agreement was efectively cancelled and rescinded ater ATF decided not to award a work order either to VSE or Heritage or the destruction of the seized ireworks that Heritage was storing; and there was, accordingly, no accord and satisaction that barred Heritage's claims; (2) Heritage had a right to a jury trial on its claim or unjust enrichment under the Seventh Amendment and the jury's verdict is thereore binding on the Court; (3) Heritage is not barred rom recovery under the doctrine of unclean hand; (4) Heritage's claims are time-barred with respect to the period beore November 26, 2011, and the awarded damages on Heritage's unjust erichment claim are accordingly reduced rom $4,782,265 to $3,496,086.29; and (5) Heritage is not entitled to prejudgment interest. The Court also inds in avor of Heritage on its quantum meruit claim 32 (Count II) and awards damages on that claim in the amount of $3,496,086.29. Accordingly, it is hereby ORDERED that the jury's award of damages in avor of Heritage on its unjust enrichment claim (Count Ill) be, and the same hereby is. reduced to $3,496,086.29: nd it is urther ORDERED that the Court's verdict be, and the same here is, rendered in favor of Heritage on its quantum menlil claim (Count U); and Heritage be, and the same hereby is, awarded damages on its quantum mentit claim in U1e amount of $3,496,086.29; and it is further ORDERED that Heritage's motion or prejudgment interest be, and the same hereby is, DENIED; and it is further ORDERED that judgment be, and the same hereby is, entered in favor of Heritage and against VSE in the amount of $3,496,086.29. The Clerk is directed to orward a copy of this Memorandum of Decision and Order to all counsel of record and to enter judgment pursuant to Federal Rule of Civil Procedure 58 in accordance with this Order. Alexandria, Virginia January 24. 2017 33
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