Bielagus v. EMRE of New Hampshire Corp.

826 A.2d 559, 149 N.H. 635, 2003 N.H. LEXIS 94
CourtSupreme Court of New Hampshire
DecidedJuly 1, 2003
DocketNo. 2002-180
StatusPublished
Cited by16 cases

This text of 826 A.2d 559 (Bielagus v. EMRE of New Hampshire Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bielagus v. EMRE of New Hampshire Corp., 826 A.2d 559, 149 N.H. 635, 2003 N.H. LEXIS 94 (N.H. 2003).

Opinion

Nadeau, J.

The plaintiffs, Barbara Bielagus and The Norwood Group, Inc., appeal from an order entered after a bench trial in the Superior Court {Brennan, J.), which ruled that the defendant, EMRE of New Hampshire Corp., was not liable for the plaintiffs’ judgment against the defendant’s predecessor on a promissory note. We affirm.

I. Historical Background

. The relevant facts are not in dispute. The plaintiffs are the holders of a $1,000,000.00 promissory note executed by the defendant’s predecessor, The Norwood Realty, Inc. (Norwood Realty), in 1986. Norwood Realty executed the promissory note as part of a $4.6 million dollar financing package to purchase the commercial division of The Norwood Group, Inc. See. Slattery v. Norwood Realty, 145 N.H. 447, 447-48 (2000). The other $3.6 million dollars of the financing package consisted of a secured loan [637]*637owed to the Federal Deposit Insurance Corporation (FDIC), which was personally guaranteed by Norwood Realty’s sole shareholders, Robert and Rose Marie Phillips.

Sometime in 1992, Norwood Realty defaulted on its promissory note with an outstanding balance of $530,000.44. It apparently also fell behind on its secured obligation to the FDIC. By 1995, Norwood Realty’s financial difficulties caused it to begin soliciting offers for the sale of its business so that it could avoid total liquidation. While Norwood Realty was engaging in negotiations to work out its financial difficulties, the plaintiffs filed suit for the balance due on the promissory note.

After a jury trial, the plaintiffs obtained a verdict against Norwood Realty for the $530,000.44 balance due. We affirmed that verdict in Slattery v. Norwood Realty, 145 N.H. at 447, and the trial court entered final judgment in early 2001. The promissory note underlying the judgment, however, was neither secured by Norwood Realty’s assets nor guaranteed by its shareholders. Consequently, the judgment remains unpaid.

Meanwhile, in March 1995, after extended negotiations with several interested parties, Norwood Realty agreed to sell virtually all of its business assets, including the Norwood Realty trade name, to the defendant. At the time of this agreement, Norwood Realty was a New Hampshire corporation in good standing, wholly owned and operated by Robert and Rose Marie Phillips. Norwood Realty engaged in both commercial and residential real estate transactions, and operated out' of ten branch offices across New Hampshire.

As part of this agreement, the defendant incorporated in New Hampshire as the New Hampshire subsidiary of Eastern Massachusetts Real Estate Corporation (EMRE). At that time, EMRE was a Massachusetts corporation in good standing, wholly owned by Jean Carlson and operated by her husband, Richard Carlson. EMRE engaged solely in residential real estate transactions, and operated out of more than twenty branch offices across Massachusetts.

The asset purchase agreement (Agreement) provided that the defendant would pay Norwood Realty $675,000.00 for its real estate business assets with the consent of the FDIC, after working out a plan for the multimillion dollar secured debt from the 1986 financing agreement. The Agreement also provided that the defendant would assume substantially all of Norwood Realty’s operating expenses and accounts payable that related to its residential real estate division. In exchange, the defendant received almost all of Norwood Realty’s business assets from its former residential real estate division. These assets included, among other things, all furniture, fixtures, leases, license agreements, real estate listing [638]*638agreements, independent broker agreements, and Norwood Realty’s operating trade name.

The defendant purchased assets only from Norwood Realty’s residential real estate division. Consequently, the Agreement required Norwood Realty’s shareholders to change Norwood Realty’s trade name and execute non-competition agreements. The Agreement further required the defendant to offer employment to substantially all of Norwood Realty’s independent residential real estate brokers, and it required two-year employment contracts to be made with Norwood Realty’s former officers, Robert and Rose Marie Phillips. The Agreement did not require the defendant to transfer shares of any corporate stock to Norwood Realty’s former officers.

•Finally, the Agreement disclosed the existence of the plaintiffs’ lawsuit on the promissory note. The Agreement provided that the defendant “shall not assume and shall not be obligated to pay any of the liabilities or obligations of [Norwood Realty], except liabilities and obligation [sic] accruing after the Closing Date... and certain accounts payable as set forth in Section 2.2.”

Since purchasing Norwood Realty’s residential real estate assets, the defendant has operated from the same New Hampshire branch offices with substantially the same residential real estate brokers as Norwood Realty’s former residential real estate division. Pursuant to their employment contracts, Norwood Realty’s former officers have worked for the defendant in management positions and have run the defendant’s New Hampshire subsidiary. Through this transaction with EMRE, Norwood Realty became part of the largest New England network of realtors, as well as part of the national Better Homes and Gardens network of realtors.

Since selling assets to the defendant, the former Norwood Realty, Inc., remains a New Hampshire corporation in good standing, but operates under the trade name “Robert Spencer Real Estate Associates.” Robert and Rose Marie Phillips remain the sole shareholders in this corporation. Robert Phillips, Norwood Realty’s former president and CEO, has also incorporated the Granite Commercial Group, Inc. (Granite), to continue the operations of Norwood Realty’s former commercial real estate division. Granite employs each of Norwood Realty’s former independent commercial real estate brokers, but Granite’s sole shareholder is Robert Phillips.

II. Procedural Background

After selling its assets, Norwood Realty gave all proceeds from the sale to the FDIC to satisfy its secured debt. Consequently, Norwood Realty [639]*639had no funds remaining to pay the plaintiffs’ unsecured claim. The plaintiffs, therefore, sought to impose liability for the judgment on the defendant, arguing that it is the successor to Norwood Realty’s residential real estate business.

The plaintiffs’ original complaint alleged five counts against the defendant and Granite; three based upon varying theories of successor liability and two grounded in debt. Prior to trial, the trial court bifurcated the two counts in debt and scheduled a three-day bench trial on the equitable claims of successor liability. The trial court ruled, over the defendant’s objection, that it would apply the rule of successor liability articulated in Kleen Laundry & Dry Cleaning v. Total Waste Mgt., 817 F. Supp. 225 (D.N.H. 1993) (Kleen Laundry I), and other federal cases.

After hearing three days of testimony, the trial court ruled that the defendant was not liable for the judgment on the promissory note under either the “mere continuation” or the “efe facto merger” theory of successor liability, and Granite was not liable for the judgment under the “fraudulent transfer” theory of successor liability. Cf. Kleen Laundry I, 817 F. Supp. at 230-31.

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Bluebook (online)
826 A.2d 559, 149 N.H. 635, 2003 N.H. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bielagus-v-emre-of-new-hampshire-corp-nh-2003.