Lily Transportation Corp. v. Royal Institutional Services, Inc.

832 N.E.2d 666, 64 Mass. App. Ct. 179, 2005 Mass. App. LEXIS 735

• Court: Massachusetts Appeals Court
• Decided: August 5, 2005
• Docket: No. 03-P-1263
• Status: Published

Opinions

Dreben, J.

In early April, 1999, the plaintiff Lily Transportatian Corp. (Lily), under the impression that it was contracting with Royal Institutional Services, Inc. (Royal), orally agreed to transport soiled hospital laundry from Philadelphia to Royal’s plant in Massachusetts and carry clean laundry back to Philadelphia. After Lily’s unpaid bills mounted to more than $150,000, Lily learned that another corporation, Gem Laundry Services, Inc. (Gem), was considered by Royal to be Lily’s customer.

Lily thereafter brought this action on numerous counts against Royal, Gem, Mark Liebovitz, and other individuals who were, with Liebovitz, stockholders and principals of Royal and Gem. Following a bench trial, a judge of the Superior Court found against Liebovitz and Royal on a claim of intentional misrepresentation, as well as a claim of wilful and knowing violation of G. L. c. 93A meriting double damages and attorney’s fees. He also “pierced” Gem’s corporate veil so as to impose liability for its debts on three of its four stockholders, Liebovitz, Mark Johnson, and Shawn Ryan.³

This is an appeal by Royal, Liebovitz, Johnson, and Ryan. We affirm the finding of violation of c. 93A by Royal and Liebovitz, including the finding that the violation was wilful and knowing, and we reverse the judgment insofar as it imposes liability on the individual defendants on the theory of piercing Gem’s corporate veil. Although the judge also found intentional misrepresentation by Royal and Liebovitz, we do not reach that issue as there cannot be recovery on both c. 93A and intentional misrepresentation.

Since there is a significant difference between the majority of the court and the dissent as to whether the judge was warranted in his c. 93A findings, we will set forth the findings and the supporting evidence in some detail. We preface our discussion with the standard of review as explained in Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509-510 (1997):

“We do not set aside a judge’s findings of fact unless they are clearly erroneous. A finding is clearly erroneous only when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. It is the appellant’s burden to show that a finding of fact is clearly erroneous. In applying the clearly cr~ roneous standard, [Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996),] requires that due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. We recognize that the judge, who has a firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence. The judge’s advantage in weighing the testimony is particularly evident in a case involving conflicting testimony, one in which widely differing inferences could be drawn from the evidence, and the drawing of inferences cannot be separated from the evaluation of the testimony itself. As a consequence, we do not review questions of fact found by the judge, where such findings are supported on any reasonable view of the evidence, including all rational inferences of which it was susceptible. So long as the judge’s account is plausible in light of the entire record, an appellate court should decline to reverse it. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” (Internal quotations and citations omitted.) (Emphasis supplied.)

1. The findings and supporting evidence as to c. 93A violation. Liebovitz, Johnson, and Ryan are the sole shareholders of Royal, a business that provides laundry services to hospitals in Massachusetts and New Hampshire. In the summer of 1998, with the intention of providing similar services to hospitals in Philadelphia, the three Royal shareholders created Gem, a Pennsylvania limited liability company, together with a fourth shareholder, a corporation, Harbor Hospital Services, Inc. The principal of the fourth shareholder was a businessman from Philadelphia, Earl Waxman.⁴ Liebovitz, Johnson, and Ryan held their two-third interest in Gem through ownership of a Pennsylvania holding company, Royal of PA, Inc.⁵ Waxman’s corporation owned the remaining one-third interest in Gem.

Gem’s initial capitalization was provided, for the most part, by Fleet Bank (bank) ($1,350,000) through a loan that was guaranteed personally by Liebovitz, Johnson, and Ryan, and, in part, by Royal. Waxman lent Gem another $200,000.

Gem began operating in the fall of 1998, doing business as Harbor Healthcare Laundry Services (Harbor). In the beginning of 1999, Gem became unable to process the volume of laundry required under its contracts with various hospitals in Pennsylvania. Gem contracted with Royal and began sending some of its laundry for cleaning to Royal’s Worcester plant, in Massachusetts. A few deliveries were made in January and February of 1999. Transportation to and from Massachusetts for these deliveries was provided by Cardinal Logistics, a Philadelphia firm. When that arrangement proved unsatisfactory, Liebovitz sought to have TransLease, a company with which Royal had an existing contract, provide the transportation services. The TransLease contract had been drafted by Robert Kessler, a man Liebovitz had known for several years while Kessler was employed by TransLease.⁶

In mid-March, 1999, Kessler informed Liebovitz that he was now working for another trucking company, namely, Lily. Shortly thereafter, Liebovitz called Kessler to seek his advice as to whether Royal, which still had unused miles on its Trans-Lease contract, could use the excess mileage to move the laundry “for them” from Philadelphia.

After TransLease declined, Liebovitz again called Kessler and asked him to look at the operation in Philadelphia to see if Lily might have any interest in providing transportation in Philadelphia.⁷ Liebovitz told Kessler that “we had a new hospital contract starting April first” and that “they were processing Unen in Philadelphia the same way they were doing it here in . . . Worcester and Somerville, for hospitals.”

Kessler and another Lily employee met Liebovitz at “a building in Philadelphia where they were processing laundry.” Asked if there was any “signage” or “[a]nything that identified it,” Kessler answered, “Not that I recollect.” The judge inferred there were no signs, disbelieving Liebovitz’s testimony to the contrary. Although Kessler did not see anything that identified Gem or Harbor, he was told by Liebovitz that the company in Philadelphia was “Harbor.” He was never told that Harbor was doing business for a Pennsylvania corporation. Gem was never mentioned.

Liebovitz told Kessler that “they” might have a problem processing laundry in the Philadelphia plant and might have to start moving linen up to Massachusetts to get it processed. He asked Kessler to determine if Lily would be interested.

Kessler understood “they” to be Royal because all his contacts with Liebovitz had been with Royal. He acknowledged that his belief that it was Royal was not from anything Liebovitz “articulated.” He made no inquiries because he was “pretty familiar with [Royal’s] business,” and the Philadelphia operatian appeared to be the same as what Royal was doing in Massachusetts. When the trial judge asked Kessler, “Why is it you never clarified who you were dealing with,” he replied, “I didn’t clarify it, your Honor, because I knew these people very well, I had a great deal of confidence in them, and I would have thought that, if there was another entity they were doing business with, they would have told me.”

After discussing the proposal with his “people” at Lily and, after further conversations with Liebovitz, Kessler orally agreed that Lily would provide the requested trucking services from PMadelphia to Worcester. Although the first delivery was April 7, pricing was not settled until after a few deliveries, and some schedules were not fixed until they were set by electronic messages (e-mails) sent to Kessler by Liebovitz dated April 29, May 7, and May 10, 1999. Kessler testified that the arrangement was a rather “fluid deal primarily because things were changing from day to day.” The three e-mails from Liebovitz to Kessler were from an account entitled “royalofma.” The first e-mail was received by Kessler before Lily sent the first bill for its services. That bill was sent to Royal on May 5, 1999.

Liebovitz, upon receiving the first bill, sent it to Harbor in Philadelphia. He also informed the operations manager of Lily that bills were to be sent to Harbor, but a later bill in June was also sent to Royal. Notations in Liebovitz’s handwriting appeared on both the May and the June bill. Liebovitz knew from these bills that Kessler and Lily were under the impression that Lily was working for Royal. Nevertheless, Liebovitz did not inform Kessler of the billing change despite his continuing contact with Kessler whenever something new came up, and despite the fact, as Kessler testified, that the two had frequent contact for reasons unrelated to this case.⁸

Believing that Lily was contracting with Royal, Kessler informed Lily’s financial officers that he had had substantial dealings with Royal at TransLease and that Royal was a good credit risk. As a result, no investigation of finances of any company was made by Lily other than a Dun & Bradstreet report concerning Royal. Kessler testified that had he known that Lily was billing Harbor — he did not find this out until August, 1999 — he would have investigated Harbor’s finances.⁹

Although Gem ceased to do business on or about July 23, 1999,¹⁰ and, under the arrangement with the bank, neither Gem nor Harbor was permitted to retain Gem’s accounts receivable,¹¹ Liebovitz never informed Kessler of Harbor’s (Gem’s) demise.¹² As a result, Lily continued to transport laundry to Royal’s Massachusetts plants for several weeks, billing a company which Liebovitz knew had no source of income or assets with which to pay for services. All of Gem’s assets were pledged as collateral to the bank.

Despite Liebovitz’s assiduous avoidance of an explicit statement that Royal was doing business as Harbor, and despite Liebovitz’s specific mention of Harbor, the judge found that “Lily had no reason to believe that [Harbor] was anything but a dba or account of Royal.” This finding, as well as findings that Liebovitz knew that Kessler would believe that Lily’s arrangement was with Royal and that Liebovitz fostered that belief, were supported by a reasonable view of the evidence.

Also warranted are the trial judge’s findings that Gem was in a precarious financial state in early April, 1999 when the transportation services commenced, that Liebovitz knew this, and that had Lily investigated, as was its usual practice, it would not have entered into the kind of arrangement that it did.¹³

Harbor’s business started in July or August of 1998. It never made a profit. The volume of business grew, but because of labor and other problems, the plant was not working well. Liebovitz testified, “we were probably at forty-four percent [of] the national average” of laundries in productivity. Because of its poor production, Liebovitz, Ryan, or Johnson frequently had to come to Philadelphia to monitor the operation. In the beginning of 1999, the company stopped meeting its financial projections although it doubled its volume of business. Royal itself was not being paid by Harbor (and was never paid) for its processing of Harbor’s laundry although Harbor was being billed for such services.¹⁴ Liebovitz testified, “we probably cash flowed even through March of ‘99 and then April, May, and June we started to have some cash flow problems and then stopped doing business in July, early August.” Harbor’s doors closed on July 23, 1999 because there was “no money for payroll.”

An examination of the accounts owed to Lily shows that Harbor was not current in its payments. Although the first bill of May 5 for $11,900 stated that payment was due within seven days, at the end of May, Harbor owed $67,060; at the end of June, $71,990; at the end of July, $112,790; and at the end of August, $151,150. Harbor’s last payment was dated July 2.

Unlike the dissent, we consider the following findings by the judge on the c. 93A claim a permissible view of the evidence:

“Royal, through Liebovitz, misled Lily into believing that Royal was contracting with it (and not [Gem,] a financially unsound corporation). The conduct of Liebovitz at the outset of the relationship failed to apprise Lily of the existence of an entity other than [Royal], and his conduct actively encouraged the impression that Royal was the contracting party. The deceptive conduct on the part of both Liebovitz and Royal caused Lily to act differently than it would have otherwise acted.”

Similarly, we consider the judge’s finding that Liebovitz’s conduct was both wilful and knowing a plausible account of the evidence. See Demoulas v. Demoulas Super Mkts. Inc., 424 Mass. at 510.

Accordingly, the judge’s conclusion that Royal and Liebovitz were in violation of c. 93A was not erroneous as matter of law. “The Legislature originally enacted c. 93A to improve the commercial relationship between consumers and businessmen. By requiring proper disclosure of relevant information and proscribing unfair or deceptive acts or practices, the Legislature strove to encourage more equitable behavior in the marketplace. See Commonwealth v. DeCotis, 366 Mass. 234, 238 (1974). By the addition of [G. L. c. 93A, § 11,] by St. 1972, c. 614, § 2, . . . these protections were extended to persons engaged in trade or commerce in business transactions with other persons also engaged in trade or commerce.” Manning v. Zuckerman, 388 Mass. 8, 12 (1983). There was here not only a failure to disclose, but as the judge concluded, Royal, through Liebovitz, actively misled Kessler and Lily into believing that Lily was contracting with Royal. See Wasserman v. Agnastopoulos, 22 Mass. App. Ct. 672, 677-680 (1986); Bump v. Robbins, 24 Mass. App. Ct. 296, 311 (1987), and cases cited; Sargent v. Koulisas, 29 Mass. App. Ct. 956, 957-958 (1990); 940 Code Mass. Regs. § 3.16(2) (1993); McHugh, Bases for Claims Under Chapter 93A — Principles of Unfairness and Deception § 2.4, at 2-47 to 2-51, Chapter 93A Rights and Remedies (Mass. Continuing Legal Educ. 1999 & Supp. 2002).

2. Piercing the corporate veil. Lily’s complaint also sought to pierce the corporate veil of Gem, a Pennsylvania limited liability corporation, and to look to the assets of the individual defendants, Liebovitz, Johnson, and Ryan, to satisfy the judgment against Gem. In his order the judge stated:

“Judgment shall enter on Count HI for Lily against Liebovitz, Johnson and Ryan for the amounts unpaid by Gem in the amount of $159,650 based on their individual conduct in holding out Gem as a viable corporation when it was simply a vehicle for their individual interests.”

We do not consider the piercing of Gem’s corporate veil proper in the circumstances of this case. The wrongdoing here was not holding out Gem as a viable corporation but rather hiding its existence. That Royal and Liebovitz misled Lily into believing that it was dealing with Royal, rather than Gem, is not a reason to pierce Gem’s veil. For that conduct Royal and Liebovitz, as we have determined in part 1 of this opinion, were directly liable under c. 93A. Moreover, as set forth in the margin, the relevant factors leading to a piercing of Gem’s corporate veil are not present here.¹⁵, ¹⁶

In any event, Johnson and Ryan cannot be held liable. Although they were active in managing Gem, there is no evidence that they participated in misleading Lily. Stockholders who are not involved in the improper transaction or wrongdoing are not liable even when the corporate veil is pierced. See Jefferson Pilot Bdcst. Co. v. Hilary & Hogan, Inc., 617 F.2d 133, 136 (5th Cir. 1980) (applying Alabama law); Lopez v. TDI Servs. Inc., 631 So. 2d 679, 687 (La. App. 1994); Slusarski v. American Confinement Sys., Inc., 218 Neb. 576, 581 (1984). See also Pepsi-Cola Metropolitan Bottling Co. v. Checker's, Inc., 754 F.2d 10, 16 (1st Cir. 1985); Aoki v. Atto Corp., 323 B.R. 803, 814 (Bankr. 1st Cir. 2005). Text writers are in accord. See 1 Fletcher, Cyclopedia of the Law of Private Corporations § 41.32, at 645 (“fraud or inequity must be perpetrated by the person or corporation against whom doctrine is invoked; such party must have been an actor in the course of conduct constituting the abuse of corporate privilege”); 1 Blumberg, Stasser, Georgakoupoulos & Gouvin, Blumberg on Corporate Groups §§ 14.05-14.06A, at 14-17 to 14-20 (2d ed. 2005); Brodsky & Adamski, Law of Corporate Officers and Directors: Rights, Duties and Liabilities § 20.12 (2005).

3. Conclusion. The judgment is affirmed against Royal and Liebovitz on the finding of a violation of c. 93A, including the finding of doubling of damages and the imposition of legal fees and costs. The judgment against Liebovitz, Johnson, and Ryan is reversed insofar as it is based on the piercing of Gem’s corporate veil.

So ordered.

3 Lily’s complaint also asserted a claim of quantum meruit against Royal and breach of contract against Gem. The judge ruled against Lily on the quantum meruit claim and imposed liability on the judgment-proof Gem. No appeal has been taken from these rulings.

4 Waxman was brought into the business because of his contacts with hospitals in the Philadelphia area.

5 The sole corporate purpose of Royal of PA, Inc. was to hold the ownership interest in Gem.

6 The contract drawn by Kessler was with Westwood Cartage, one of several companies under which TransLease was doing business.

7 When informed that there was a written contract for Harbor’s local transportation services with another company, Cardinal Logistics, Kessler said there was nothing Lily could do. “We couldn’t take the contract away; he had a signed contract.” Since there was no written contract with Cardinal for the Massachusetts transport and Cardinal had only performed a few round trips to Massachusetts, Kessler was willing to provide those services.

8 All of Lily’s bills that were paid were paid by checks bearing Harbor’s name. No letters, e-mails, or written material given to Lily at any time, other than the checks, listed Harbor. Gem was never mentioned.

9 When questioned by the judge, he indicated that there was a well known practice in the trucking industry that when providing services to a new corporation, a credit check is performed.

10 A stipulation states that Gem ceased doing business on July 28, 1999, but the testimony was that the date was July 23; “on or about July 23” was the date found by the judge.

11 Paragraph 6 of Gem’s liquidation agreement with the bank provided that Gem was to collect its accounts receivable in trust for the bank with the first $150,000 to be remitted to Royal on account of services rendered by Royal.

12 Although the later deceptions (failing to inform Kessler about the billing change, the e-mails from “royalofma,” and the failure to inform Kessler or anyone at Lily of Gem’s ceasing to do business) did not induce Lily to enter into the arrangement, they may be viewed as bearing on whether Liebovitz’s intent when he entered into the transaction was to mislead Kessler and Lily into the belief that Royal was the contracting party. See Clarke v. Second Natl. Bank, 177 Mass. 257, 262-263 (1901); Commonwealth v. Shraiar, 397 Mass. 16, 26 (1986); Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001); Hanson v. National Surety Co., 257 N.Y. 216, 220 (1931).

13 Lily would certainly have required more prompt payment and would not have continued to provide services while the balances set forth, infl-a, remained outstanding.

14 Although Harbor’s cash flow problems did not begin until April, 1999, it was not paying its bills in March, at least those owed to Royal for the earlier deliveries made prior to tile contract with Lily.

15 The matter is governed by the law of Gem’s place of incorporation. See Restatement (Second) Conflict of Laws § 307 (1971). But see 1 Fletcher, Cyclopedia of the Law of Private Corporations § 43.72 (1999). In any event it does not appear that the law of Massachusetts differs from the law of Pennsylvania. See cases cited in note 16, infra.

“[TJhere is a strong presumption in Pennsylvania against piercing the corporate veil. Wedner v. Unemployment Bd., 449 Pa. 460, 464 (1972) (‘Any court must start from the general rule that the corporate entity should be recognized and upheld, unless specific, unusual circumstances call for an exception’).” Lumax Indus., Inc. v. Aultman, 543 Pa. 38, 41-42 (1995). Most of the factors to be considered in disregarding the corporate form set forth in Lumax, supra at 42, are not present here. Those factors are: “undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs and use of the corporate form to perpetrate a fraud.” Ibid, (citations omitted).

There was here no evidence of undercapitalization; no evidence of a failure to adhere to corporate formalities; and no indication of the mingling of corporate and personal affairs; or that Gem was, in the judge’s words, “simply a vehicle for [the stockholders’] individual interests.” While Royal and Gem had some degree of common ownership, the individual stockholders were not in complete control of Gem and had a fiduciary duty to the one-third stockholder and principal, Waxman’s corporation. See Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 733 (1991).

16 Although it is not clear from the judge’s findings whether he also pierced Royal’s veil, in view of the order quoted above, we assume he did not. If our assumption is incorrect, we consider that there were no grounds under Massachusetts law to disregard Royal’s separate existence. Consideration of the relevant factors set forth in our cases, see particularly Pepsi-Cola Metropolitan Bottling Co. v. Checker’s, Inc., 754 F.2d 10, 14-16 (1st Cir. 1985), adopting the standard of My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619-620 (1968), do not warrant piercing Royal’s corporate veil in order to attribute the liabilities of Gem to Royal’s stockholders. See Attorney Gen. v. M.C.K., Inc., 432 Mass. 546, 555-556 (2000); Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 733 (1991).