Norwood Group, Inc. v. Phillips

828 A.2d 300, 149 N.H. 722, 2003 N.H. LEXIS 109
CourtSupreme Court of New Hampshire
DecidedJuly 24, 2003
DocketNo. 2002-726
StatusPublished
Cited by26 cases

This text of 828 A.2d 300 (Norwood Group, Inc. v. Phillips) 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
Norwood Group, Inc. v. Phillips, 828 A.2d 300, 149 N.H. 722, 2003 N.H. LEXIS 109 (N.H. 2003).

Opinions

Brock, C.J.

The plaintiffs, The Norwood Group, Inc. (Norwood Group) and Barbara Bielagus, appeal from the order of the Superior Court (Conboy, J.) dismissing their petition for equitable and legal relief brought against the defendants, Rose Marie and Robert Phillips. We affirm in part, reverse in part and remand.

The record supports the following facts. The defendants are the sole shareholders, officers and directors of Norwood Realty, Inc. (Norwood Realty). The plaintiffs are the current holders of a $1 million promissory note that Norwood Realty and Norwood Group executed in February 1986. As of February 1992, the principal balance due on the note was $530,000.44. See Slattery v. Norwood Realty, 145 N.H. 447, 448 (2000). The plaintiffs have been unable to collect the judgment from Norwood Realty.

[723]*723To date, there have been three actions to collect on the note. The first was brought in 1995 against Norwood Realty by Bielagus and Arthur Slattery (a former holder of the note). See id. at 447. The jury in that case awarded Bielagus and Slattery the principal balance due on the note; we affirmed the jury verdict on appeal. See id. at 447-48.

The second action was brought by the plaintiffs in March 1998 against Eastern Massachusetts Real Estate, Inc. (EMRE) and Granite Commercial Group, Inc. (Granite), two successor companies to Norwood Realty. See Bielagus v. EMRE of NH Corp., 149 N.H. 635 (2003). The superior court found that neither EMRE nor Granite was liable for Norwood Realty’s obligations under the note. See id. The plaintiffs appealed this judgment; we recently affirmed the trial court’s decision. See id.

The instant appeal concerns the third action to collect on the note. In this action brought in April 2002, the plaintiffs allege that the defendants are liable in their individual capacities for the amount due under the note. They further allege that in March 1995, the defendants structured a sale of substantially all of Norwood Realty’s assets, “leaving behind an empty corporate shell” that is unable to satisfy the note.

The plaintiffs’ petition includes a petition in equity to pierce the corporate veil of Norwood Realty, three negligence counts, and claims for fraud and fraudulent transfer. The defendants moved to dismiss the petition on the ground that all claims are barred by the applicable statute of limitations because they are based upon the March 1995 asset sale. The trial court treated the defendants’ motion as a motion for summary judgment and granted it. The trial court found that the plaintiffs became aware of the asset sale through discovery responses in the first litigation. Although the plaintiffs argued that their petition to pierce the corporate veil is subject to a twenty-year, not a three-year, statute of limitations, the court impliedly ruled otherwise.

Additionally, the court ruled that the plaintiffs’ claims for negligence and fraud failed to state a claim upon which relief could be granted. The only issues now before us relate to the plaintiffs’ equitable petition to pierce the corporate veil and their fraudulent transfer claim.

We will affirm a trial court’s grant of summary judgment if, considering the evidence and all inferences properly drawn therefrom in the light most favorable to the non-moving party, our review of that evidence discloses no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Coyle v. Battles, 147 N.H. 98,100 (2001). We review the trial court’s application of the law to the facts de novo. Id.

[724]*724 I. Equitable Petition to Pierce Corporate Veil

Ordinarily, corporate owners are not liable for a corporation’s debts. See 18A Am. Jur. 2d Corporations § 850 (1985). The corporation and its owners are considered separate, legal entities. See 18 Am. Jur. 2d Corporations § 43 (1985). In án appropriate case, however, a corporation and those owning all of its stock and assets will be treated as identical. Id. Thus, for instance, wé will pierce the corporate veil and assess individual liability where the owners have used the corporate identity to promote an injustice or fraud on the plaintiffs, as is alleged here. See Terren v. Butler, 134 N.H. 635, 639-41 (1991). In such a case, we will disregard the fiction that the corporation is independent of its stockholders and treat the stockholders as the corporation’s “alter egos.” See Village Press v. Stephen Edward Co., 120 N.H. 469,471-72 (1980).

The defendants argue that the plaintiffs’ petition to pierce the corporate veil is a personal action governed by a three-year statute of limitations. See RSA 508:4,1 (1997). The plaintiffs counter that it is an action to enforce the judgment entered in the first litigation against Norwood Realty, and is thus governed by a twenty-year statute of limitations. See RSA 508:5 (1997).

This is an issue of first impression in New Hampshire. Courts in other jurisdictions, however, have ruled that where, as here, a party first obtains a judgment against a corporation and later sues corporate stockholders to cast them in judgment under the doctrine of piercing the corporate veil, the suit against the stockholders is an action on a judgment.

For instance, in Belleville v. Hanby, 394 N.W.2d 412 (Mich. Ct. App. 1986), the court ruled that the ten-year period of limitation for enforcement of judgments applied to an action brought by judgment creditors of the corporation against individual stockholders under an alter ego theory. The plaintiffs in Belleville had filed a suit against the corporation in 1980 that arose out of a 1977 injury and had obtained a judgment in their favor. Id. at 413. The corporation filed for bankruptcy in 1983. Id. Soon thereafter, the plaintiffs sued the individual corporate shareholders, seeking to make them liable for the judgment in the earlier suit. Id. The defendants argued that the second suit was untimely because it was not filed within three years of the injury. Id. at 413-14.

The court ruled that the second suit was not a claim for personal injury, but rather was an attempt to establish that the judgment against the corporation was a judgment against the defendants in their individual capacities under the piercing the corporate veil or alter ego doctrine. Id. at 414-15. Accordingly, the court ruled that the ten-year statute of limitations for actions founded upon judgments governed. Id.

[725]*725A similar conclusion was reached in Wm. Passalacqua Builders v. Resnick Developers South, 608 F. Supp. 1261 (S.D.N.Y. 1985), reversed on other grounds, 933 F.2d 131 (2d Cir. 1991). In that case, the plaintiffs had obtained a judgment against Resnick Developers South, Inc. (Developers) in 1981. Id. at 1263. They later sued Developers and other defendants to collect the unpaid balance on the judgment. Id. The plaintiffs alleged that the other defendants were liable for the balance under a theory of piercing the corporate veil. Id.

The defendants argued that the plaintiffs’ claims were governed by the six-year statute of limitations for fraud. Id. at 1264.

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Bluebook (online)
828 A.2d 300, 149 N.H. 722, 2003 N.H. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norwood-group-inc-v-phillips-nh-2003.