National American Insurance v. Ruppert Landscaping Co.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL AMERICAN INSURANCE 
COMPANY; GULF INSURANCE
COMPANY,
Plaintiffs-Appellants,
v.  No. 01-1468
RUPPERT LANDSCAPING COMPANY,
INCORPORATED,
Defendant-Appellee.

NATIONAL AMERICAN INSURANCE 
COMPANY; GULF INSURANCE
COMPANY,
Plaintiffs-Appellees,
v.  No. 01-1510
RUPPERT LANDSCAPING COMPANY,
INCORPORATED,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge;
James C. Cacheris, Senior District Judge.
(CA-00-1258-A)
Argued: October 31, 2001
Decided: December 26, 2001
Before WILKINSON, Chief Judge, and WIDENER and
GREGORY, Circuit Judges.
2 NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Wilkinson and Judge Widener joined.
COUNSEL
ARGUED: Dawn C. Stewart, HENRICHSEN SIEGEL, P.L.L.C.,
Washington, D.C., for Appellants. C. Thomas Brown, SILVER &
BROWN, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Neil L.
Henrichsen, HENRICHSEN SIEGEL, P.L.L.C., Washington, D.C.,
for Appellants. Glenn H. Silver, SILVER & BROWN, P.C., Fairfax,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GREGORY, Circuit Judge:
National American Insurance Company and Gulf Insurance Com-
pany (collectively "the Sureties") filed this action against Ruppert
Landscaping Company ("RLC"), claiming that RLC was liable for
certain debts incurred by Green Thumb Landscape Company ("Green
Thumb") upon RLC’s acquisition of Green Thumb’s assets. After
three days of trial, the district court entered judgment for RLC, reject-
ing the Sureties’ successor liability and fraudulent conveyance claims.
We affirm.
I.
Green Thumb1 and RLC provided landscape maintenance and land-
scape installation services in the Washington D.C. area for approxi-
1
Green Thumb is not a party to this action.
NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING 3
mately 20 years. In 1995, however, Green Thumb experienced
financial difficulties that led it to default on certain obligations. Sig-
nificantly, it defaulted on performance bonds acquired for several of
its landscape installation contracts through the Sureties. National
American and Gulf Insurance incurred losses of $640,729 and
$1,905,904.95, respectively, as a result of Green Thumb’s default.
Upon learning of Green Thumb’s financial difficulties, RLC nego-
tiated to acquire Green Thumb’s assets. On July 31, 1995, RLC and
Green Thumb signed a Purchase Agreement, under which Green
Thumb agreed to transfer to RLC its vehicles, equipment, and mainte-
nance contracts "free and clear of any liens and encumbrances." J.A.
2026, 2027. Recognizing that Green Thumb had liens on many of
these assets, the Purchase Agreement allowed Green Thumb to use
the "sales proceeds [of the Green Thumb/RLC transaction] to obtain
releases of liens in order to convey good title[.]" J.A. 2040.2
Green Thumb, in fact, had a mounting debt problem. A June 1995
Dunn & Bradstreet report downgraded Green Thumb’s credit rating
from "good" to "fair." The report showed that Green Thumb was
party to four pieces of litigation seeking $103,523, and that state and
federal taxing authorities had liens against Green Thumb totaling
$675,000. Moreover, Green Thumb owed NationsBank approxi-
mately $1,523,695.86 on three loans (a line of credit loan, an equip-
ment loan, and a real estate loan). As a result of this debt,
NationsBank held liens on much of Green Thumb’s maintenance con-
tracts, vehicles and equipment.
It appears that RLC knew Green Thumb could not meet at least
some of its obligations. RLC questioned Green Thumb’s internal bal-
ance sheets and projected income/expense analyses. Additionally,
2
The Purchase Agreement further required RLC to pay Green Thumb
a "Base Purchase Price" of $1,564,000 either (1) at closing, or (2) the
earlier of (a) the date on which title to any item of equipment could be
validly conveyed free of all liens and encumbrances, or (b) August 31,
1995. J.A. 2027-28. RLC also pledged to pay ten percent of gross
receipts from the maintenance contracts in four annual installments.
However, RLC could set off any amounts due Green Thumb against any
amounts Green Thumb owed RLC.
4 NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING
RLC’s Chief Financial Officer, Ken Hochkeppel, noted that it
appeared Green Thumb could become insolvent.
RLC sought to insulate itself from Green Thumb’s debt in several
ways. First, the Purchase Agreement explicitly stated that RLC would
"not assum[e] any debts, liabilities, agreements, contracts or obliga-
tions" of Green Thumb, other than those directly related to its asset
purchase. J.A. 2036. Second, RLC employees helped Green Thumb
obtain releases of various leases and liens relating to the assets RLC
sought to purchase, with RLC signing some of the releases itself.
Third, RLC purchased from NationsBank two Green Thumb notes
that encumbered many of the assets it sought to purchase. RLC
bought the notes for $960,000. RLC and Green Thumb then entered
into a Forbearance Agreement related to the NationsBank notes under
which Green Thumb agreed to immediately pay RLC $192,595.86,
and pay RLC all the interest on its line of credit loan plus $125,000
monthly from September 5, 1995 through December 1995. Beginning
January 1996, the principal payments would be reduced to $100,000
monthly.
Upon completing the sale, RLC hired approximately 100 Green
Thumb employees, virtually all from Green Thumb’s landscape main-
tenance division. Additionally, once before the sale’s completion and
twice afterward, RLC transferred funds totaling $25,151.56 to Green
Thumb so that Green Thumb could meet payroll obligations. Finally,
on July 27, 1995 — shortly before the parties signed the Purchase
Agreement — Green Thumb sent a letter to some of its clients, stating
that "Green Thumb and [RLC] are combining landscape/maintenance
operations under the umbrella of [RLC]." J.A. 1595. The letter stated
that Green Thumb was "very excited about what this alliance can
offer us all" and referred to the Green Thumb-RLC transaction as a
"merging of our two operations." J.A. 1595. RLC approved the letter
before Green Thumb mailed it to its clients.
The Sureties filed this action against RLC on July 27, 2000, mak-
ing claims of successor liability and fraudulent conveyance. On
March 13, 2001, the parties began three days of trial, at the end of
which the Sureties completed their case-in-chief. The district court
then granted RLC’s Fed. R. Civ. P. 50 motion for judgment as a mat-
ter of law on the Sureties’ successor liability claim, and entered judg-
NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING 5
ment under Rule 52 against the Sureties on their Va. Code § 55-80
fraudulent conveyance claim. After the entry of judgment, RLC
moved for sanctions against the Sureties under Fed. R. Civ. P. 11.
RLC argued that the Sureties "pursued [RLC] through a chain of
actions without uncovering new evidence and without any good faith
basis in fact or law." J.A. 3624-25 (internal quotation marks omitted).
The Court rejected the motion, holding that RLC failed to comply
with Rule 11’s 21-day safe harbor provision. J.A. 3625. Additionally,
the court held that the Sureties’ claims "were not devoid of factual
and legal foundation." J.A. 3627.
II.
A.
We review de novo the district court’s decision to grant RLC’s
Rule 50 motion. Trimed, Inc. v. Sherwood Medical Co., 977 F.2d 885,
888 (4th Cir. 1992). Under Rule 50, a court should render judgment
as a matter of law when "a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue." Reeves v. Sanderson, 530 U.S. 133,
149 (2000) (quoting Fed. R. Civ. P. 50(a)). The Court should review
all the evidence in the record, but "draw all reasonable inferences in
favor of the nonmoving party." Id. at 150 (citing Lytle v. Household
Mfg., Inc., 494 U.S. 545, 554-55 (1990)). Additionally, the Court
"must disregard all evidence favorable to the moving party that the
jury is not required to believe." Id. at 151. "[T]he court should give
credence to the evidence favoring the nonmovant as well as that ‘evi-
dence supporting the moving party that is uncontradicted and unim-
peached, at least to the extent that the evidence comes from
disinterested witnesses.’" Id. (quoting 9A C. Wright & A. Miller, Fed-
eral Practice and Procedure § 2529, p. 300 (2nd ed. 1995)).
We review the district court’s Rule 52 ruling entering judgment
against the Sureties’ fraudulent conveyance claim under the clearly
erroneous standard. Fed. R. Civ. P. 52(a); Holmes v. Bevilacqua, 794
F.2d 142, 147 (4th Cir. 1986) (en banc). We will reverse the district
court’s findings only if its ultimate determinations "were induced by
an erroneous view of the controlling legal standard; or are not sup-
ported by substantial evidence; or were made without properly taking
6 NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING
into account substantial evidence to the contrary or are against the
clear weight of the evidence considered as a whole." Dwyer v. Smith,
867 F.2d 184, 187 (4th Cir. 1989) (quoting Moore v. City of Char-
lotte, 754 F.2d 1100, 1104 (4th Cir. 1985)).
B.
It is well settled that "where one company sells or otherwise trans-
fers all its assets to another company, the latter is not liable for the
debts and liabilities of the transferor." City of Richmond v. Madison
Management Group, Inc., 918 F.2d 438, 450 (4th Cir. 1990) (quoting
15 W. Fletcher, Cyclopedia of the Law of Private Corporations,
§ 7122, at 188 (Rev. Perm. Ed 1983)). This general rule of corporate
non-liability serves, in effect, "as a security blanket" that "protects
corporate successors from unknown or contingent liabilities of their
predecessors." Conway v. White Trucks, 692 F. Supp. 442 (M.D. Pa.
1988), aff’d, 885 F.2d 90 (3d Cir. 1989). The purchasing corporation
"is not liable on the other company’s obligations merely by reason of
its succession to such company’s property." 15 W. Fletcher, Cyclope-
dia of the Law of Private Corporations, § 7122, at 227 (Perm. Ed
1999) (hereinafter "Fletcher"). However, there are exceptions to this
general rule. For example, a purchasing corporation can be liable for
the debts and liabilities of a selling corporation if "the purchasing cor-
poration expressly or impliedly agreed to assume such liabilities," or
if "the transaction is fraudulent in fact." Harris v. T.I., Inc., 413
S.E.2d 605, 609 (Va. 1992) (citing Pepper v. Dixie Splint Coal Co.,
181 S.E. 406, 410 (Va. 1935)).3 These exceptions to the general rule
seek to identify only those transactions "where the essential and rele-
vant characteristics of the selling corporation survive the asset sale,"
thus rendering it equitable to hold the purchaser liable for the seller’s
obligations. North Shore Gas Co. v. Salomon, Inc., 152 F.3d 642, 651
(7th Cir. 1998).
The Sureties do not, and could not, contend that RLC expressly
assumed Green Thumb’s liabilities. Indeed, section 8 of the Purchase
Agreement explicitly states that RLC does "not assum[e] any debts,
liabilities, agreements, contracts or obligations" of Green Thumb,
other than those directly related to its asset purchase. J.A. 2036. This
3
All parties agree that Virginia law applies to this suit.
NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING 7
language is clear and unambiguous on its face, heavily weighing
against a finding that RLC impliedly assumed Green Thumb’s liabili-
ties or that the transaction was fraudulent in fact. See Fletcher at 251-
52 ("A contract between the seller and purchaser corporations, with
explicit provisions which exclude any liability for the debts and liabil-
ities of the predecessor, weighs against finding that an exception can
be implied").
Moreover, it is well settled that a court should not resort to extrin-
sic evidence to interpret a contract when the contract’s language is
plain and unambiguous. Hitachi Credit America Corp. v. Signet Bank,
166 F.3d 614, 624 (4th Cir. 1999). A court must give plain and unam-
biguous contract language its "legal effect according to [its] plain,
ordinary and popular meaning." Florom v. Elliott Mfg., 867 F.2d 570,
575 (10th Cir. 1989). Here, the plain and unambiguous language of
the Purchase Agreement states that RLC would not assume the liabili-
ties of Green Thumb. Its language could not be any plainer or less
ambiguous. Such express language weighs heavily against any find-
ing of an implied assumption of liabilities or that the transaction was
fraudulent in fact.
Nonetheless, the exceptions to the general rule of non-liability
allow courts to look outside the four corners of a contract under
appropriate circumstances. Such circumstances do not exist here. We
have reviewed the Sureties’ evidence supporting their theories of suc-
cessor liability.4 After reviewing the evidence and drawing all reason-
able inferences in the Sureties’ favor, see Reeves, 530 U.S. at 150, it
4
The same analysis underlying the fraud-in-fact theory of successor
liability applies to the Sureties’ fraudulent conveyance claim. Both must
be analyzed under Va. Code § 55-80, which states that
[e]very gift, conveyance, assignment or transfer of, or charge
upon, any estate, real or personal, . . . given with intent to delay,
hinder or defraud creditors, purchasers or other persons of or
from what they are or may be lawfully entitled to shall, as to
such creditors, purchasers or other persons, . . . be void. This sec-
tion shall not affect the title of a purchaser for valuable consider-
ation, unless it appears that he had notice of the fraudulent intent
of his immediate grantor or of the fraud rendering void the title
of such grantor.
8 NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING
is evident that the Sureties failed to advance sufficient evidence to
defeat the general rule of non-liability. The strongest evidence
advanced by the Sureties in support of their claim is:
• RLC was aware of Green Thumb’s financial difficulties
and the extent of its debt.
• RLC employees helped Green Thumb obtain releases on
some of its liens.
• RLC paid off, rather than purchased, Green Thumb’s
debt to NationsBank.
• RLC covered Green Thumb’s payroll on three occasions.
• RLC hired 100 Green Thumb employees.
• RLC approved the July 27 letter from Green Thumb to
some of its clients, which stated that Green Thumb and
RLC were "combining" their operations and forming an
"alliance."
First, RLC’s awareness of Green Thumb’s financial difficulties
cannot help the Sureties’ case. It should be of no surprise that a com-
pany selling assets has financial difficulties. Indeed, it is often the
case that a company sells assets precisely because of its financial dif-
ficulties. If we were to craft a rule suggesting that a company would
assume the liabilities of a financially-strapped company simply by
purchasing its assets, we would eviscerate the general and long-
standing rule of non-liability, as well as drastically chill future asset
purchases.
Second, it is of no moment that RLC employees helped Green
Thumb obtain releases on some of its leases and liens. RLC sought
to purchase Green Thumb’s assets with clear title; it obviously could
not do so until Green Thumb obtained the releases. RLC’s assistance
in doing so does not imply an assumption of liability or a fraudulent
act.
NATIONAL AMERICAN INS. v. RUPPERT LANDSCAPING 9
Third, there is no evidence that RLC paid off, rather than pur-
chased, Green Thumb’s debt to NationsBank. The undisputed evi-
dence was that RLC negotiated the purchase with NationsBank and
then entered into a forbearance agreement with Green Thumb. Noth-
ing in the record suggests a pay-off.
Fourth, RLC’s decision to cover Green Thumb’s payroll on three
separate occasions is of little note. Indeed, one may argue that, by
doing so, RLC helped Green Thumb remain viable longer than it oth-
erwise would have, thereby giving it greater opportunity to obtain
funds with which to pay its debts. And, while it is true that RLC hired
100 Green Thumb employees, it hired only employees who worked
on Green Thumb’s landscape maintenance contracts, which RLC pur-
chased from Green Thumb. It did not hire employees from Green
Thumb’s landscape installation business, which Green Thumb
retained. Finally, while the July 27 letter is suspect, the Sureties fail
to provide any evidence that any creditor relied on the letter to believe
that RLC acquired Green Thumb’s liabilities.
The Sureties fail to advance sufficient evidence to defeat the gen-
eral rule of non-liability. Their strongest evidence fails to even sug-
gest that "the essential and relevant characteristics of [Green Thumb]
survive[d] the asset sale[.]" North Shore Gas Co., 152 F.3d at 651.
The heavy weight that must be accorded the plain language of the
Purchase Agreement simply cannot be circumscribed.
III.
For the foregoing reasons, the judgment of the district court is
affirmed.5
AFFIRMED
5
We have considered the parties’ remaining contentions and find them
without merit.