March 4, 2009
ALLIANCE SHIPPERS, INC., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
PENOBSCOT FROZEN FOODS, INC., FREDERICK D. STARRETT, III, INDIVIDUALLY AND AS AN AGENT OF PENOBSCOTT FROZEN FOODS, INC. AMERICOLD LOGISTICS, L.L.C., ASSOCIATED GROCERS, INC., ASSOCIATED WHOLESALE GROCERS,INC., BRUNO'S SUPERMARKETS, INC., CHENEY BROTHERS, INC., GORDON FOOD PRODUCTS CORP., MCLANE COMPANY, INC., PIGGLY-WIGGLY CO. AND WINN-DIXIE STORES, INC., DEFENDANTS, AND PENOBSCOT MCCRUM, L.L.C., COUNTY SUPER SPUDS, INC., DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4374-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 2, 2009
Before Judges Lisa, Reisner and Alvarez.
This appeal involves a commercial dispute between Penobscot McCrum, L.L.C. (McCrum), which bought the assets of Penobscot Frozen Foods, Inc. (Penobscot) at a foreclosure sale, and Alliance Shippers, Inc. (Alliance), the intermodal shipping company that transported Penobscot's and McCrum's products. McCrum appeals from trial court orders dated November 1, 2006, February 16, 2007 and April 3, 2007. Alliance cross-appeals from the November 1, 2006 and April 3, 2007 orders.
In brief summary, McCrum contends that the trial court erred in awarding Alliance approximately $43,000 in damages based on quantum meruit. McCrum also contends the court should not have stricken its offer of judgment. In its cross-appeal, Alliance, invoking claims of successor liability and fraudulent transfer, contends that McCrum was entirely liable for Penobscot's debts to Alliance totaling over $200,000. Alliance argues that the trial court should have applied New Jersey law rather than Maine law, and that regardless of which state's law applies, it is at least entitled to additional damages for unjust enrichment. We reject the parties' contentions on the appeal and the cross-appeal and affirm.
This case involves a Maine-based business, Penobscot, that obtained a business loan in Maine from a Maine bank, Key Corporate Capital, Inc. (Key). After Penobscot defaulted on the loan, Key foreclosed on Penobscot's assets which had been pledged as security for the loan. Although McCrum and Key had had some previous discussions about McCrum purchasing the Penobscot business, Key eventually had the assets sold at public auction. In connection with the foreclosure, Key arranged with Tranzon Auction Properties, an independent professional auctioneering firm with offices in Portland, Maine, to sell the collateral, at auctions held in Belfast, Maine and Washburn, Maine. McCrum produced an affidavit from Key's attorney, who had handled the foreclosure and arranged for the auction sale, attesting that "[t]he foreclosure sale was done at arm's length" and that "Key Corporate's sole objective was to maximize the value of the Key Collateral in order to satisfy Penobscot's obligations" under the defaulted loan. McCrum also produced legally competent, undisputed evidence that Tranzon was an independent auction firm having no affiliation with Key, McCrum or Alliance. Although Tranzon widely advertised the auctions and responded to inquiries from fifteen potential buyers, only two bidders participated in the auction at Washburn and one bidder participated in the Belfast auction. McCrum was the successful bidder at both auctions,*fn1 paying a total of $1.8 million. Under Maine law, a bona fide arms-length purchaser of corporate assets is not liable for the debts of the purchased corporation.
After the foreclosure sale, McCrum essentially continued the potato-processing business, using the same facilities and the same employees as Penobscot. Because McCrum purchased Penobscot's receivables, among other assets, it had the right to collect from Penobscot's customers for products delivered before as well as after the foreclosure sale.
Alliance is a New Jersey-based shipping company which had pre-existing contracts with Penobscot to transport its potato products all over the country. Before the foreclosure action was filed, while the foreclosure was proceeding, and after McCrum bought the assets, Alliance was providing shipping services, transporting the potato products to various locations throughout the United States. McCrum bought Penobscot's assets at auction on April 29, 2004, but did not give Alliance contemporaneous notice of the purchase. Meanwhile, Alliance was transporting potato products produced at the Penobscot factory now owned by McCrum and for which McCrum would eventually bill Penobscot's customers.
It is undisputed that Penobscot did not require its customers to pay directly for shipping services but rather built those transportation costs into its own bills to the customers. Moreover, as a condition of its contract with Penobscot, Alliance was required to provide Penobscot with invoices for its services and bills of lading signed by the customers. Those documents were due when Alliance's deliveries were complete, and they were then used to create Penobscot's bills to its customers. While each Alliance pick-up of potato products from the factory generally resulted in several "stops" or deliveries to customers throughout the country, Alliance would not get paid for any of its services until it provided one invoice for all the deliveries resulting from that pick-up, plus a bill of lading for each separate delivery.
McCrum continued the practice, billing the customers for products delivered by Alliance and including at least some portion of the charges for Alliance's services in those bills. However, while Alliance produced McCrum's bills at the trial, Alliance did not produce proof as to how much McCrum actually charged its customers for transportation, which was not itemized separately on the bills.
When McCrum refused to pay all of Alliance's outstanding bills to Penobscot for transportation services, totaling approximately $250,000, Alliance sued McCrum, as well as other parties, to collect the debt.*fn2 Judge Waugh, then the Presiding Judge of Chancery, General Equity, held that Maine law applied to Alliance's lawsuit.
In an oral opinion placed on the record on August 4, 2006, Judge Waugh reasoned that under the governmental interest test set forth in Veazey v. Doremus, 103 N.J. 244, 247-48 (1986), and Fu v. Fu, 160 N.J. 108, 118 (1999), Maine had a greater interest than New Jersey had in applying its law of successor liability to the Maine foreclosure sale. He reasoned that accepting Alliance's position would mean that "arising out of the same [foreclosure] sale transaction you could have many different results depending upon whether you apply the law of one state . . . or another. If you consistently apply the law of the state where [the sale] took place . . . at least it's going to be a uniform application of law." In a later opinion placed on the record on October 6, 2006, the judge also noted: "The only contact with New Jersey is that Alliance happens to be located in New Jersey. This is not a . . . transaction that . . . took place in New Jersey."
Further, in the October 6 opinion, Judge Waugh noted the parties' apparent agreement that Alliance was entitled to payment for "any transactions that began after the sale of . . . Penobscot's assets at a foreclosure sale that took place on April 29, 2004 . . . and . . . any shipments that were in transit at the time of the sale on April 29, 2004." In an order dated November 1, 2006, the judge granted summary judgment to Alliance "on the contract claims relating to shipments in transit at the time of the April, 2004 auction sale and for shipments originating after the April 29, 2004 auction sale."
The judge then addressed "the shipments that were complete as of the date of the sale on April 29, 2004."*fn3 With respect to those shipments, he held that Alliance was entitled to collect from McCrum, under a theory of unjust enrichment, the lesser of the amounts Alliance charged Penobscot for transporting those shipments or the amount McCrum actually billed its customers for the transportation. The basis for the limit on the amount to be recovered was evidence that Penobscot did not necessarily charge its customers the exact amount Alliance charged Penobscot for delivery, but frequently imposed a smaller charge.
In the same opinion, Judge Waugh also granted summary judgment dismissing Alliance's fraud claims, concluding that there was no proof that the foreclosure sale was anything but a bona fide arm's length transaction:
[I]t's clear to me that although there were discussions between the bank and the new Penobscot purchasers, that this was a sale that cannot be described as collusive. The . . . sale was duly advertised and an auction took place, or a bidding procedure took place. There was only one active bidder, and that was the parties that I referred to as new Penobscot [McCrum]. There is no suggestion . . . in the record, that anything took place that deterred or discouraged any other potential bidder from appearing at the sale and bidding a higher price.
Under Maine law, that really is the issue for a secured party foreclosure sale for fraudulent transfer. So, I will grant summary judgment to the defendants on that issue . . . .
In response to Alliance's argument that discussions between McCrum and Key bank had resulted in Key setting an undisclosed "reserve" bidding price for the sale, the judge concluded that even if there was such a reserve, it made no difference to the outcome:
[E]ven if there was a reserve that was not disclosed, I don't see how that infected the sale in any way. . . . [I]f there had been a reserve [and] people were told, don't bother showing up unless you're going to bid $1 million, and then at the sale the bank had said, well, nobody has bid $1 million but new Penobscot [McCrum] here has bid [$]900,000 so we're going to waive our reserve and take [$]900,000, that would have been a problem, because clearly . . . other bidders were discouraged to come and bid less than $1 million, but I don't see anything about this transaction that's been put into the record . . . that indicates to me that any . . . bona fide bidders were in any way discouraged or prevented from coming to this auction and . . . making a bid that would have produced more money.
In an oral opinion placed on the record on February 16, 2007, the judge granted a motion striking McCrum's $25,000 offer of judgment, relying on City of Cape May v. Coldren, 329 N.J. Super. 1 (App. Div. 2000). The remaining claims then proceeded to a bench trial before Judge Mathias Rodriguez.
At the bench trial, Louis Trentacoste, Alliance's Vice President of Logistics and Distribution, testified that as a condition of getting paid for its transportation services, Alliance was required to provide Penobscot with bills of lading and proof of deliveries (POD).*fn4 These documents would "show that the product, all of the product was received and in good condition by the people who Penobscot wanted it delivered to." Otherwise "if the bill of lading and COD [sic] is not part of it, then there's always the possibility that Penobscot's purchaser won't want to pay them and say that they didn't receive anything." He also confirmed that without these documents, the shipper, in this case Penobscot, "may not get paid because it needs to have proof that . . . what they sold was delivered to the customer." McCrum did not present evidence to contradict that testimony, although it claimed that for accounting purposes it considered a sale complete when the goods were loaded on Alliance's trucks.
In support of its claim, Alliance produced P-2, a computer-generated report of its accounts receivable billed to Penobscot. The list appeared to indicate that between April 30, 2004 and May 14, 2004, Alliance billed $52,665.90, representing twenty invoices, of which McCrum paid $8699.25. This document did not indicate when the goods were actually picked up and delivered.
However, in later testimony, Trentacoste confirmed that Alliance transported approximately twenty shipments on and after April 29, 2004. He also confirmed that those shipments represented the last twenty invoices reflected on the P-2 list of receivables. He testified that Alliance was still owed $43,952.65 for those shipments.
According to Trentacoste, McCrum did not notify Alliance of the auction sale until May 12, 2004. However, in telephone conversations, Alliance was "told that the business was going to be changing hands and . . . all of our business was going to remain as is." Based on that conversation, Alliance continued to provide its services. According to Trentacoste, frequently those services would include several stops in the course of one shipment, but Alliance was not entitled to submit an invoice or receive payment until all the stops were accomplished.
In his testimony, Gordon Pow, a corporate officer of McCrum, agreed that the carrier "is not entitled to payment until they provide proof of delivery." He also agreed that at least ten of the invoices listed on P-2 referred to "one or more stops [that] occurred on and after 4/29/04." He conceded that after the auction, McCrum never notified Alliance to "stop making . . . deliveries of shipments that it had picked up on or before the auction date."
Following the trial, Judge Rodriguez issued a written opinion dated February 26, 2007, concluding that Alliance was entitled to approximately $43,000 in damages for quantum meruit, including charges for shipments as to which the only remaining service Alliance rendered to McCrum was providing its invoices and bills of lading signed by the customers. He found that without the latter, McCrum could not bill McCrum's (formerly Penobscot's) customers. However, Judge Rodriguez also held that Alliance was not entitled to its claim for approximately $73,000 in additional unjust enrichment damages based on McCrum's pass-through to its customers of transportation charges, because Alliance failed to prove the amounts McCrum actually charged the customers for transportation costs.*fn5
This appeal followed, with Alliance claiming it was entitled to approximately $73,000 in additional damages, and McCrum asserting that Alliance was entitled to nothing, apart from approximately $9,000 in service charges for which McCrum already paid. McCrum also claimed that Alliance should pay McCrum's counsel fees under the offer of judgment rule.
Our review of the trial court's summary judgment rulings is de novo, as is our review of the court's decisions on legal issues generally. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Mastondrea v. Occidental Hotels Mgmt., 391 N.J. Super. 261, 283 (App. Div. 2007). However, we defer to Judge Rodriguez's factual findings based on the trial record, so long as they are supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
Because we agree with Judge Rodriguez that Alliance did not prove its claim of unjust enrichment, we need not decide whether Alliance was entitled to assert that cause of action in the first place. Nor do we address McCrum's $25,000 offer of judgment, because our affirmance of Alliance's $43,000 judgment renders that issue moot. Having canvassed the voluminous record, we find no merit in either party's remaining arguments.
We begin with the choice-of-law issue. Our courts apply a governmental interest test in deciding conflict-of-law issues:
Traditionally, the place of contract governs the choice of law unless another jurisdiction has a more significant relationship with the parties and/or transaction. State Farm Mutual Auto. Ins. Co. v. Estate of Simmons, 84 N.J. 28, 37 (1980). "This rule is to be applied unless the dominant and significant relationship of another state to the parties and the underlying issue dictates that this basic rule should yield." Ibid. However, our Supreme Court has endorsed a flexible "governmental interest" analysis to determine which state has the greatest interest in governing the specific issue that arises in the underlying litigation. Erny v. Estate of Merola, 171 N.J. 86, 94 (2002); Lonza, Inc. v. The Hartford Accident and Indem. Co., 359 N.J. Super. 333, 345 (App. Div. 2003). "Ordinarily, choice-oflaw determinations are made on an issue-by-issue basis, with each issue receiving separate analysis." Erny, supra, 171 N.J. at 94. Under the governmental interest analysis, the court is required to determine: (1) whether there is an actual conflict between the laws of the states involved; (2) the policy interest that each state has in applying its law to the particular circumstances and parties; and (3) how strongly the contacts involved relate to each state's policy and whether application of one law will further or frustrate the policies of the other state. [Walsh v. Mattera, 379 N.J. Super. 548, 555 (App. Div. 2005).]
In applying the governmental interest test, New Jersey follows the Restatement in considering the following factors:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied [Fu v. Fu, 160 N.J. 108, 122 (1999) (quoting Restatement (Second) of Conflict of Laws § 6 (1971).]
There is a conflict between the laws of New Jersey and Maine respecting the issue of successor liability. In New Jersey, the law can be summarized as follows:
[W]here one company sells or otherwise transfers all of its assets to another company the latter is not liable for the debts and liabilities of the transferor, including those arising out of the latter's tortious conduct, except where (1) the purchaser expressly or impliedly agrees to assume such debts and liabilities; (2) the transaction amounts to a consolidation or merger of the seller and purchaser; (3) the purchasing corporation is merely a continuance of the selling corporation, or (4) the transaction is entered into fraudulently in order to escape liability for such debts. [Jackson v. N.J. Mfrs. Ins. Co., 166 N.J. Super. 448, 454 (App. Div.), certif. denied, 81 N.J. 330 (1979).]
In Maine, the inquiry is simpler and generally protects the successor corporation from liability for the debts of its predecessor:
[A]bsent a contrary agreement by the parties, or an explicit statutory provision in derogation of the established common law rule, a corporation that purchases the assets of another corporation in a bona fide, arm's-length transaction is not liable for the debts or liabilities of the transferor corporation. [Dir. of Bureau of Labor Stds. v. Diamond Brands, Inc., 588 A.2d 734, 736 (Me. 1991).]
We agree with Judge Waugh that the analysis must properly focus on the foreclosure sale and not on the contract between Alliance and Penobscot. The foreclosure sale took place in Maine, and that state clearly has a strong interest in governing the legal results of the sale. Maine law appears aimed at creating certainty and thus facilitating the sales of businesses. Those policies are implicated here. Unless Maine law applies to foreclosure sales in Maine, creditors would have considerable difficulty selling their corporate debtors' assets, because prospective purchasers would have no certainty as to whether they might be charged with the debtor corporations' liabilities. As Judge Waugh observed, unless Maine law applies to the foreclosure sale, a purchaser might be subject to the successor-liability laws of fifty different states, depending on the locations of the foreclosed company's creditors.
Since both Maine and New Jersey have adopted versions of the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to -34 and Me. Rev. Stat. Ann. tit. 14, § 3571-3582, application of Maine law does not leave out-of-state creditors without a remedy against fraud. Further, as Judge Waugh correctly noted, other than the fact that Alliance has its principal offices in New Jersey, this State has virtually no contacts with the case. Both Penobscot and McCrum are Maine corporations, the lender was based in Maine, the foreclosure sale was in Maine, and Alliance picked up the goods in Maine and delivered them all over the country. Finally, if any wrong was done in this case, it was committed in Maine, where Alliance alleges McCrum and Key conspired to defraud Penobscot's creditors. We find no basis to apply New Jersey law to this case. See Fu, supra, 160 N.J. at 122.
Alliance's fraud or "collusive sale" argument is likewise without merit and warrants no discussion, beyond the following comments. R. 2:11-3(e)(1)(E). McCrum and Key had discussions before the foreclosure sale concerning McCrum's possible purchase of Penobscot's assets. However, they were unable to finalize an agreement of sale and therefore Key had the debtor's assets sold at a foreclosure auction. The undisputed evidence is that the sale, conducted by Tranzon, an independent company, was the result of a bona fide auction which was widely advertised. See Donaghy v. Leighton, 351 A.2d 125, 128 (Me. 1976). Even if McCrum and Key had prior discussions, there is no evidence that any other potential purchaser was deterred from bidding or that the price was artificially inflated or depressed. There is no evidence that Key was motivated to do anything other than maximize its recovery of the amounts Penobscot owed. And there is no evidence of collusion, i.e., a "secret agreement . . . to deceive and defraud" Penobscot's creditors or other potential bidders. Mercier v. John Hancock Mut. Life Ins. Co., 44 A.2d 372, 376 (Me. 1945).*fn6
We agree with Judge Rodriguez that Alliance failed to prove its case of unjust enrichment. Alliance claimed that McCrum was unjustly enriched by charging its customers for transportation services for which McCrum had not paid Alliance. In support of that claim, Alliance presented proof of its invoices to Penobscot and McCrum, and proof that McCrum billed its customers for the products, but Alliance did not present evidence as to the amounts McCrum charged the customers for Alliance's transportation services. Alliance's witness, Kathleen Kertesz, admitted she had no knowledge "as to what freight charges . . . Penobscot [McCrum] would have collected on those invoices." Assuming for the sake of argument that its unjust enrichment theory was viable, Alliance still had the burden to prove its damage claim; it failed to carry its burden. See Kutzin v. Pirnie, 124 N.J. 500, 516-17 (1991). No further discussion of this issue is warranted. R. 2:11-3(e)(1)(E).
Finally, we turn to the issue of quantum meruit. "Quasi-contractual obligations are imposed by law to bring about justice, without reference to the parties' intent. Quantum meruit is a form of quasi-contract, permitting recovery of as much as is deserved." Glick v. Barclays De Zoete Wedd, Inc., 300 N.J. Super. 299, 310 (App. Div. 1997)(citation omitted). These obligations "'rest on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another, and on the principle that whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do.'" St. Paul Fire & Marine Ins. Co. v. Indemnity Ins. Co., 32 N.J. 17, 22 (1960)(quoting 17 C.J.S. Contracts § 6, at 324). The test for entitlement is as follows:
To recover under a theory of quantum meruit, a plaintiff must establish: "(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services."
Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994) Starkey, Kelly, Blaney & White v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002).]
In this case, Alliance's claim in quantum meruit was based on the facts that it performed services under the Penobscot contract after the foreclosure sale, that McCrum accepted and benefited from those services, and that Alliance performed the services expecting compensation even though it performed some of the services before it learned about the foreclosure sale.
In opposing the claim, McCrum relies on a series of cases that are not on point. In Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105 (App. Div. 1966), we found no basis to invoke quantum meruit where a landscaping company sold shrubs to the contract purchaser of a house. When the purchaser passed away and his estate decided not to buy the house, the landscaper tried to collect the price of the planted shrubs from the homebuilder on a quantum meruit theory. We described quantum meruit as follows:
Quasi-contractual liability has found application in a myriad of situations. However, a common thread runs throughout its application where liability has been successfully asserted, namely, that the plaintiff expected remuneration from the defendant, or if the true facts were known to plaintiff, he would have expected remuneration from defendant, at the time the benefit was conferred. It is further noted that quasi-contract cases involve either some direct relationship between the parties or a mistake on the part of the person conferring the benefit. [Id. at 109 (citations omitted).]
We concluded that the landscaper sold and delivered the plants to the contract purchaser, made no mistake as to identity of the person to whom the goods were being delivered, and only had a reasonable expectation of payment from that purchaser.
In this case, by contrast, Alliance provided services to McCrum, not initially realizing that Penobscot's business had been sold at auction. Alliance expected to be paid and in fact ceased providing services as soon as McCrum announced that it would not pay for services rendered under the Penobscot contract. Nor is Kagen v. K-Tel Entertainment, Inc., 172 A.D. 2d 375 (N.Y. App. Div. 1991) on point; in that case, as in Callano, the plaintiff sought to recover for past services to another party, rather than services rendered to the defendant.
Moser v. Milner Hotels, Inc., 6 N.J. 278 (1951), is likewise inapplicable here. The parties there had a written contract setting a price for the plaintiff to paint hotel rooms; the plaintiff tried to charge a higher price and the court held him to the terms of the contract. In this case, while Alliance had a contract with Penobscot, it had no contract with McCrum. However, between the time of the foreclosure sale in April, and several weeks later in May, it was transporting goods belonging to McCrum and otherwise providing services to McCrum. We find no merit in McCrum's argument that it does not owe Alliance for these services in quantum meruit.
Finally, we address the issue of the types of services for which Alliance is entitled to payment. McCrum contends that even under Judge Waugh's ruling, Alliance is only entitled to payment for goods that were both picked up and delivered after April 29, 2004. In fact, McCrum contends that it paid Alliance approximately $9000 for those services; Alliance agrees with that figure. However, Alliance contends that it is also entitled to payment for goods picked up before April 29 but delivered after that date, because after April 29 the goods belonged to McCrum and therefore Alliance was actually performing a service to McCrum. Alliance further contends that it is entitled to payment for deliveries made prior to April 29 but for which Alliance had not yet delivered invoices and bills of lading to Penobscot. Alliance claims that delivery of the invoice and bill of lading was the third and necessary part of its work because McCrum could not bill its own customers without proof of transportation and delivery from Alliance. Judge Rodriguez accepted Alliance's argument as to both claims, and awarded Alliance approximately $43,000.
We agree that delivery was an integral part of the service rendered to McCrum, for which Alliance was entitled to payment. McCrum's customers certainly would not have paid McCrum for goods picked up from the factory by Alliance but never delivered to the customers. Under the facts of this case, as found by Judge Rodriguez and as supported by the trial testimony, McCrum also could not bill its customers or collect its charges without the bills of lading, which proved that the correct goods were delivered in undamaged condition. We find no error in the trial court's equitable determination to permit Alliance to recover from McCrum for all of those services which it provided to McCrum after the auction sale.