Cargill, Inc. v. Beaver Coal & Oil Co., Inc.

• Decision Date: 05 March 1997
• Citation: 676 N.E.2d 815,424 Mass. 356
• Parties: CARGILL, INCORPORATED 1 v. BEAVER COAL & OIL CO., INC., & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 815

676 N.E.2d 815

424 Mass. 356

CARGILL, INCORPORATED ¹ v. BEAVER COAL & OIL CO., INC., & others. ²

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Nov. 6, 1996.

Decided March 5, 1997.

Alan B. Almeida, Walpole, for defendants.

Andrew M. Osborne, Dedham, for plaintiff.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and MARSHALL, JJ.

MARSHALL, Justice.

Cargill, Incorporated, doing business as Northeast Petroleum (Northeast), a wholesale supplier of liquid petroleum products, commenced this action against Beaver Coal & Oil Co., Inc. (Beaver), a retail seller of home heating oil and related products, and Citizens Fuels Corporation (Citizens) to collect payment for home heating oil that Northeast had sold to Beaver. Before it paid Northeast for the oil deliveries, Beaver sold substantially all of its assets and business to Citizens. When it was unable to secure payment, Northeast commenced this action alleging that Citizens was liable to Northeast on a theory of corporate successor liability. Northeast also alleged that the transfer of assets from Beaver to Citizens constituted a "bulk transfer" as defined by the Bulk Transfers Act, G.L. c. 106, §§ 6-101 et seq. (act), and that Citizens had failed to give proper notice to Beaver's creditors, as required by G.L. c. 106, §§ 6-105 and 6-106.

On cross motions for summary judgment by Northeast and Citizens, a judge of the Superior Court ruled that there was a de facto merger of Citizens and Beaver, and that Citizens was liable to Northeast as the successor corporation to Beaver. He also ruled that Citizens had failed to comply with the notice provisions of the Bulk Transfers Act. ³ Another judge of the Superior Court ruled on Northeast's motion for assessment of attorney's fees and entered final judgment against Citizens in the amount of $254,660.75, the amount owed by Beaver to Northeast, with interest at the statutory rate from January 31, 1990, attorney's fees of $47,696.50, and costs. ⁴

Citizens appealed and Northeast cross-appealed, the latter challenging the adequacy of the interest and attorney's fees awarded. We transferred the appeals to this court on our own motion. We agree that Citizens is the corporate successor of Beaver and is liable to Northeast for the full amount of Beaver's indebtedness. We need not, therefore, pass on the judge's rulings concerning the Bulk Transfers Act. We also affirm the award of attorney's fees and the calculation of interest.

I

The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). See Beal v. Selectmen of Hingham, 419 Mass. 535, 539, 646 N.E.2d 131 (1995), and cases cited. We review the facts under that standard.

Beaver was a full-service retail oil dealer that sold home heating oil to homeowners and other petroleum products to commercial and wholesale accounts. Beaver also sold and serviced air conditioning and oil-fired heating systems.

On August 1, 1989, after many months of negotiations, Beaver and Citizens entered into a sale of assets agreement (transaction), pursuant to which Citizens acquired substantially all Beaver's assets, including its inventory of parts and equipment. ⁵ Citizens paid Beaver $1,105,393.71 in the form of cash, a promissory note, and the assumption of certain debts. ⁶

For several years prior to the transaction Northeast had done business with Beaver. They apparently had a satisfactory relationship, and Northeast had provided Beaver with a substantial line of credit. In the heating season immediately prior to the transaction, Northeast sold more than $250,000 of home heating oil to Beaver. However, during the spring and summer of 1989, as Beaver negotiated with Citizens about the sale of its business, Beaver fell behind in its payments to Northeast. Northeast's credit manager became concerned about the debt and had repeated conversations with Beaver about it.

Northeast learned about the possible sale of Beaver to Citizens in the late spring of 1989, and was told that there should be more than sufficient funds from the sale proceeds to retire Beaver's indebtedness to Northeast. However, on August 1, 1989, the date on which the transaction was consummated, Northeast learned for the first time that there were insufficient funds to pay all creditors and that Beaver intended to make no payments at all to Northeast from the sale proceeds. The sale of Beaver's business to Citizens was consummated, and Northeast was paid nothing.

Following the transaction Citizens continued to conduct the business much as Beaver had, using Beaver's name, Beaver's offices, and its equipment. All Beaver's employees became employees of Citizens, carrying out their same duties, and serving Beaver's customers. In the months that followed, Citizens agreed to and did pay some of Beaver's creditors, but it made no payments to Northeast. Unable to secure payment from any source, Northeast commenced this action in January, 1990.

II

We consider first Northeast's claim that Citizens is the successor corporation to Beaver. Citizens argues that the judge erred in holding it liable for Beaver's preexisting debt on a theory of successor corporate liability based on the de facto merger doctrine. We conclude that the judge was correct, even as we recognize the importance of respecting separate corporate entities. We adhere to traditional corporate law principles that the liabilities of a selling predecessor corporation are not imposed on the successor corporation which purchases its assets unless (1) the successor expressly or impliedly assumes liability of the predecessor, (2) the transaction is a de facto merger or consolidation, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor. Guzman v. MRM/Elgin, 409 Mass. 563, 566, 567 N.E.2d 929 (1991). See McCarthy v. Litton Indus., Inc., 410 Mass. 15, 21, 570 N.E.2d 1008 (1991); Dayton v. Peck, Stow & Wilcox Co. (Pexto), 739 F.2d 690, 692 (1st Cir.1984) (construing Massachusetts law); 15 W. Fletcher, Private Corporations § 7122, at 231 (rev.perm. ed.1990).

The factors that courts generally consider in determining whether to characterize an asset sale as a de facto merger are whether (1) there is a continuation of the enterprise of the seller corporation so that there is continuity of management, personnel, physical location, assets, and general business operations; whether (2) there is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation; whether (3) the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; and whether (4) the purchasing corporation assumes those obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation. In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F.Supp. 1010, 1015 (D.Mass.1989). See also 15 W. Fletcher, supra at § 7124.20, at 294. No single factor is necessary or sufficient to establish a de facto merger. Id. We agree with the judge that each factor is satisfied in this case.

First, it is not disputed that following the transaction Citizens conducted the business in substantially the same fashion as Beaver, using the Beaver name (as Citizens had acquired the right to do), from the same locations, with the same employees and operational management. In determining whether a de facto merger has occurred, courts pay particular attention to the continuation of management, officers, directors and shareholders. See, e.g., Dayton v. Peck, Stow & Wilcox Co (Pexto)., supra at 693. Here, the general manager of Beaver, a key employee in charge of all Beaver's operations, retained the same position with Citizens as he had with Beaver. He testified that his duties at Citizens were exactly the same as his duties at Beaver. He also testified that all the employees of Beaver became employees of Citizens with, but one exception, all maintaining their same positions and responsibilities. ⁷ In short, the business of Citizens was conducted by exactly the same people as the business of Beaver. In addition Michael Viano, the sole shareholder, officer and director of Beaver, became a director and a shareholder of Citizens. Citizens used the same telephone numbers as Beaver, the same trucks, and the same equipment. Beaver's customer lists and contracts were transferred to Citizens, all whom were serviced just as they had been by Beaver. As the judge found, Citizens simply became Beaver. See Cyr v. B. Offen & Co., 501 F.2d 1145, 1153 (1st Cir.1974).

As to the second factor, this was not a typical shares-for-assets transaction, and we recognize that this factor is most frequently applied when the purchaser corporation exchanges its own stock as consideration for the seller corporation's assets. See Acushnet River, supra at 1014, and cases cited. ⁸ In this case Michael Viano acquired a twelve and one-half per cent shareholder interest in Citizens ⁹; he also became a director of Citizens. It also appears that his shares may have been paid for with the sale proceeds. While this does not constitute shareholder continuity in its fullest sense, there is no requirement that there be complete shareholder identity between the seller and a buyer before corporate successor liability will attach. See Cyr v. B. Offen & Co., supra at 1154.

The third factor is also satisfied. Under the terms of the sales agreement Beaver...