Appleyard v. Douglass

• Court: Court of Appeals for the First Circuit
• Decided: March 11, 1998
• Docket: 97-1844
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION] United States Court of Appeals For the First Circuit

No. 97-1844

LUCY APPLEYARD,

Plaintiff, Appellee,

v.

JOHN W. DOUGLASS, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Zachary R. Karol, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Philip R. Olenick for appellant.

John A. James, Jr. for appellee.

March 6, 1998

BOWNES, Senior Circuit Judge. Federal jurisdiction in this action to recover the balance due on a promissory note is based on diversity of citizenship. Lucy Appleyard, plaintiff- appellee, is the holder of a note from J.W. Douglass Corporation (Douglass Corp.) to Appleyard Motor Transportation Company, Inc. (Appleyard Motor), which was personally guaranteed by John W. Douglass, defendant-appellant. The note was given by Douglass Corp. to Appleyard Motor as part of the price paid by Douglass for the purchase of Appleyard Motor's business and assets. The relevant facts are not in dispute, but the parties differ sharply as to the legal and factual conclusions to be drawn from them. I We rehearse the relevant facts. Appleyard Motor transported gasoline and other petroleum products. Its annual revenue approximated $2.5 million. Its sole stockholder was John Appleyard, husband of plaintiff. Douglass Corp. was also in the trucking business. In addition to gasoline and petroleum products it transported ready mix concrete and sand and gravel. Douglass Corp.'s annual revenues were approximately $20 million. Sometime before September 16, 1988, the two corporations entered into negotiations for the sale of Appleyard Motor's business and assets to Douglass Corp. John Appleyard died on September 16, 1988. His will, which had been executed in Massachusetts, was probated in the Probate Court of Rockingham County, New Hampshire, where John Appleyard and his wife, Lucy, lived at the time of John's death. John's will named plaintiff (Lucy Appleyard) executrix. It bequeathed all of John's tangible personal property to her. John Appleyard had created a trust which provided that his residuary estate was to be divided into three subtrusts: Trusts A, B, and C. The trustees were the adult children of John Appleyard. There are no minor children. Trust A was for plaintiff's exclusive benefit; she received all the income and had discretion to withdraw as much of the principal as she wanted. The trustees of Trust A had the right to pay to plaintiff as much of the principal from all three trusts as was deemed necessary for the comfort and support of plaintiff. One of the adult children, Nancy, lived in Massachusetts at the time the trusts were created and still lives there. Trusts B and C are of no relevance. Under the will, the residue of John Appleyard's estate went to the trustees of Trust A. It is agreed by the parties that the residue included John's stock in Appleyard Motor. Contrary to the will, the residuary estate was not transferred to the trustees of the trust. Plaintiff, as executrix, transferred the entire estate to herself on March 1, 1990. This was stated in her first and final account, which was allowed by the probate court on September 11, 1990. There were no objections to this transfer by any of the trustees, who were identified by name and address in the final account as beneficiaries of the estate and who had received notice of the filing of the account as required by New Hampshire law. We now must backtrack. Negotiations between the two companies continued after John Appleyard's death. On November 23, 1988, plaintiff, as the new president of Appleyard Motor, executed a purchase and sale agreement with Douglass Corp. Under the agreement Appleyard Motor sold its business and tangible assets to Douglass Corp. for $800,000.00. Douglass Corp. paid $500,000.00 cash and gave Appleyard Motor a non-negotiable promissory note for the balance of $300,000.00 payable monthly with interest at 10%. This broke down to thirty-five monthly payments in the amount of $9,680.16 each. John W. Douglass, Jr., defendant, personally guaranteed the note. Douglass Corp. made eleven monthly payments directly to plaintiff in her name for a total of $106,481.76. The record is silent as to how plaintiff became the president of Appleyard Motor. There were, however, no objections by any of the trustees to her assumption of the office. Plaintiff testified that she did not have any day-to-day knowledge of the business and that her lawyer and accountant handled everything. She also testified that the defendant, John W. Douglass, Jr., never raised a claim about misrepresentations by her or Appleyard Motor or claimed that the balance was not due on the note. At the time suit was brought, the outstanding balance on the note was $217,644.00. Before bringing suit plaintiff discussed the matter with her children; they approved commencement of the suit and have followed its progress. The purchase and sale agreement contained the following statement: "[T]o the best of its knowledge and belief, [Appleyard, Motor] is in full compliance with all laws and regulations which apply to the conduct of its business, including all laws and regulations relating to employment." Douglass Corp. stopped payments on the note as of November, 1989. In January of 1990, Douglass Corp. filed a chapter 11 bankruptcy petition. On January 4, 1991, the Massachusetts Secretary of State involuntarily dissolved Appleyard Motor under chapter 156, section 101 of the Massachusetts General Laws. The complaint in this action was filed on January 19, 1995. II There were essentially two issues tried before the magistrate judge: the standing of plaintiff to bring suit and damages. Our standard of review for factual findings is clearly erroneous, and de novo for legal conclusions. We start with standing. Defendant argues at length in his brief, as he did in the district court, that the case should have been dismissed for lack of subject matter jurisdiction. His argument is based on the assertion that plaintiff did not prove her "standing" to sue the defendant-guarantor for the unpaid balance on the promissory note. The "standing" argument is based on two premises. First, plaintiff did not prove that she was the rightful owner of Appleyard Motor stock. Second, without formal action either by Appleyard Motor's directors or a court of the Commonwealth, Appleyard Motor's assets cannot be distributed and remain in the corporation, "even after dissolution, as it may be revived at any time." We note that if suit had been brought by the trustees, there would be no diversity jurisdiction because one of the trustees lived in Massachusetts. We think defendant's contentions are mainly smoke and mirror creations. We have no problem affirming the magistrate judge on the standing issue. The bedrock facts are that plaintiff had at all pertinent times physical possession of the note and guarantee. Eleven payments were made to her individually. None of the trustees the three adult children of plaintiff and her late husband objected to her taking on the role of president of Appleyard Motor after her husband died. We agree with the magistrate judge, "that the trustees voluntarily and knowingly acquiesced and approved the transfer of Appleyard Motor Transportation Company Inc.'s shares from plaintiff as executrix to herself individually." Moreover, as already noted, the eleven payments by Douglass Corp. were made directly to plaintiff. If one thing is clear in this case, it is that the trustees knew at all times what was going on and what plaintiff was doing. It can be fairly held that the trustees approved of the entire course of action taken by their mother. To argue as defendant does is an attempt to cover up the basic facts with a welter of legal technicalities. We find that the magistrate judge was not clearly erroneous in his factual findings on standing and we find no error of any dimension in his legal conclusions on this issue. III We do have a problem with the damages award. Some background facts are necessary. As already noted, the purchase and sale agreement between the two corporations contained the following provision under the title, Representations of the Seller: J. Seller, to the best of its knowledge and belief, is in full compliance with all laws and regulations which apply to the conduct of its business, including all laws and regulations relating to employment.

Ex. 1, 7J. There was unrebutted testimony by Gerald Felise, vice president and chief financial officer of Douglass Corp., along the following lines. Felise had extensive experience in the trucking industry. The Department of Transportation has a long-standing requirement mandating that truck drivers keep a record of all hours spent "on duty" and "off duty." The time records must be kept in what is called a log. It is the responsibility of the trucking employer to see to it that the logs are accurate. The logs are required to be kept at the terminal of origin and at the corporate office. After he took over at Douglass Corp. in 1989, Felise conducted an audit of the Appleyard Motor site in Metheun, Massachusetts. He found that although the logs kept by the truck drivers appeared to be in compliance with Department of Transportation hour requirements, they did not check out with the trip tickets issued at the points of origin and delivery. Trip tickets are stamped with the time the truck leaves the terminal and another ticket shows the time of delivery of the load. Unlike the logs, the truckers had no control over the times stamped on trip tickets. Appleyard Motor had a large percentage of independent truckers hauling for it. Independent truckers own their own tractors and lease containers furnished by the trucking company. It is to the financial advantage of independent truckers to carry as many loads as possible, which may mean working more hours than allowed by the Department of Transportation. The magistrate judge relied on the testimony of Felise in finding that "AMT's [Appleyard's] drivers were driving an excessive number of hours and that AMT must have known this. This constitutes a false representation or breach of warranty." This finding was not clearly erroneous and insofar as it involved an interpretation of paragraph 7J of the purchase and sale agreement, it was not legal error. Our difficulty with the damages award stems from the magistrate judge's computation of damages. We quote the pertinent part of his opinion on damages: Upon discovering that AMT's [Appleyard Motor's] drivers had been driving excessive hours, Gerald Felise, Vice President and Chief Operating officer of JWD [Douglass Corp.], issued a directive to the drivers to bring their hours into compliance with the law. In order to compensate the drivers for the loss of driving time, AMT had to raise the rates it charged its customers. This, in turn, resulted in a loss of customers and a $300,000 annual decline in revenue associated with the former AMT operation. (Tr. 1/16/67, at 113, 119, 135.) Starting from an annual revenue base of $2.5 million, this amounts to a 12% decline. Although Douglas [sic] presented no evidence that purported to address directly the issue of damages or even to quantify JWD's loss in profits as a result of this decline in revenue, I infer that, if JWD had known that annual revenue from the AMT operation would decline 12% as a result of JWD having to bring that operation into compliance with law, the fair price JWD would have been willing to pay for AMT would have been at least 12% (or $96,000) below the $800,000 it agreed to pay. On this basis, I find that the difference between the value of the assets as represented or warranted and their actual value was at least $96,000.

As of November 1989 when JWD ceased making payments, the principal balance due on the note before any offset was approximately $217,644. (Ex. 2.) Giving Douglas credit for the $96,000 offset to which he is minimally entitled, the principal amount outstanding must be reduced to $121,644. As of November 1994, Appleyard calculated that approximately $151,644 was due in interest and late charges, based on the assumption that the principal balance outstanding was $217,644. (Id.) Extrapolating, I find that the amount of interest and late charges that was due as of November 1994 on the adjusted principal balance of $121,644 was approximately $84,626 ($121,644 divided by $217,644 equals 55.89%, 55.89% of $151,412 equals $84,626). Accordingly, I find that, as of November 1994, Douglas owed Appleyard a total of $206,270 ($121,644 plus $84,626).

We note first that the statement by the magistrate judge that "Douglas presented no evidence that purported to address directly the issue of damages or even to quantify JWD's loss in profits as a result of this decline in revenue" is contrary to the record. Gerard Felise, vice president and chief financial officer of Douglass, testified directly on this. His testimony can be summarized as follows. Appleyard Motor's operations at the Methuen, Massachusetts, site grossed $2.5 million annually. Its operating cost was .87 cents on the dollar; this meant that its profit was .13 cents on the dollar. This translated into roughly between $200,000.00 and $400,000.00 worth of cash flow profits annually. In order to operate in compliance with the Department of Transportation's hourly requirements the rates charged customers were increased by 18%. The customers refused to pay the additional 18%. This resulted in a "negative revenue stream" of $300,000.00, or to put it another way, there was a $300,000.00 annualized decline in revenue based on a $2.5 million starting point. This contributed to an overall decline in revenue of 40% for Douglass Corp. The result was the filing of a chapter 11 petition in bankruptcy by Douglass Corp. on January 27, 1990. In answer to a question by the magistrate judge, Felise stated the $300,000.00 loss in annual revenue was due solely to the mandatory compliance with the reduced hours required by the Department of Transportation. (The magistrate judge did not question the credibility of Felise; indeed, he relied on his testimony in finding a false representation by Appleyard Motor.) There was also testimony by Michael Pierce, accountant for Appleyard Motor, that prior to the sale of its assets its profits were $200,000.00-$300,000.00 a year. Thus, it appears from the evidence that the entire profit margin of Appleyard Motor was wiped out when the driving hours violation was corrected. We are also bothered by the magistrate judge's statement that if Douglass Corp. had known that the annual revenue from the Appleyard Motor operation would decline 12% because customer rates had to be raised 18% to bring the operation into compliance with the law, "the fair price JWD [Douglass] would have been willing to pay for AMT [Appleyard] would have been at least 12% (or $96,000.00) below the $800,000.00 it agreed to pay." There is no evidentiary basis for such an inference. There was no testimony as to what a willing buyer would have paid a willing seller under these circumstances. Moreover, the magistrate judge gave no consideration to the inescapable fact that a reduction of $300,000.00 in annual earnings effectively eliminated Appleyard Motor's profits. We cannot conjecture without evidence what Douglass Corp. would have paid if the hour violations had been brought to its attention prior to the sale. Douglass may well have decided not to purchase Appleyard Motor. There is one thing, however, that has been established beyond peradventure. The hours violations resulted directly in an annual loss of revenue to Douglass Corp. of $300,000.00. The offset provision in the note and purchase and sale agreement states: The obligation evidenced by this Promissory Note is at all times subject to the terms and conditions of that certain Asset Purchase Agreement dated November 28, 1988, which is hereby incorporated by reference and any other agreements related thereto and the Borrower is expressly granted the right to offset against any and all sums payable to Noteholder by Borrower under this Note in an amount equal to any and all losses, claims, and/or damages sustained by Borrower resulting from the assertion of a debt, claim or liability brought against Borrower which had not been previously disclosed by Noteholder or as a result of any failure or breach of any warranty or representation by Noteholder or any misrepresentation made by Noteholder in connection with the sale of the Assets.

While a trial court generally has considerable discretion in fixing damages, such an award must yield when there is "clear error." La Esperanza de P.R., Inc. v. Perez y Cia. de P.R., Inc., 124 F.3d 10, 21 (1st Cir. 1997). We think that is the case here. The district court clearly erred when it inferred that Douglass Corp. would have paid only 12% less for Appleyard Motor in the total absence of any evidence to that effect. Quabaug Rubber Co.v. Fabiano Shoe Co., 567 F.2d 154, 162 (1st Cir. 1977)(damage award "not supported by substantial evidence . . . was in error"); cf.Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 836 (1990). This is especially so in light of the fact that bringing Appleyard Motor into compliance with Department of Transportation requirements obliterated the profit margin of the purchased entity. And the court did not make any "conclusions of law from which a theory of damages that would support the award[] can be inferred." Westminster Elec. Corp. v. Salem Eng'g & Const., 712 F.2d 720, 724 (1st Cir. 1983)). Douglass Corp. was entitled under the note "to offset against any and all sums payable to Noteholder . . . in an amount equal to any and all losses, claims, and/or damages sustained by Borrower resulting from . . . any failure or breach of any warranty or representation." We fail to understand, in the absence of evidence, how the 12% purchase price reduction suffices to offset the actual effect of Appleyard Motor's misrepresentation. We must, therefore, vacate the award of damages and remand solely for a new determination of damages. So Ordered. No costs to either party.