Duffy v. Vision Hardware ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH J. DUFFY, 
Plaintiff-Appellee,
v.
VISION HARDWARE GROUP,  No. 01-1281
INCORPORATED; ACORN PRODUCTS,
INCORPORATED; UNION TOOLS,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-99-3576-JFM)
Argued: September 27, 2001
Decided: October 26, 2001
Before WILKINSON, Chief Judge, and LUTTIG and
MICHAEL, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: M. Bradley Hallwig, ANDERSON, COE & KING,
L.L.P., Baltimore, Maryland, for Appellant. William James Murphy,
MURPHY & SHAFFER, Baltimore, Maryland, for Appellees.
2 DUFFY v. VISION HARDWARE GROUP
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joseph J. Duffy filed this breach of contract action against his for-
mer employer, Vision Hardware Group, Inc. (Vision), over Vision’s
refusal to pay him a bonus from the sale of the assets of one of
Vision’s wholly owned subsidiaries, VSI Fasteners, Inc. (VSI). The
district court granted summary judgment to Vision, holding that the
plain language of the contract prevented the bonus clause from being
triggered. Because we conclude that the contract is ambiguous, we
vacate the judgment and remand for further proceedings.
I.
Vision, now known as Acorn Products, Inc., is a holding company
whose operating (and wholly owned) subsidiaries manufacture and
market non-powered lawn and garden tools. VSI was one of Vision’s
subsidiaries. In 1991 Vision hired Duffy to be, among other things,
its chief executive officer and the chairman of the board of its operat-
ing subsidiaries. In 1993 Vision entered into an employment contract
with Duffy that provided him a bonus "if and when the Company sells
all or substantially all of the outstanding stock or of the assets of VSI"
if the sale "results in the Company receiving consideration in excess
of Eight Million Dollars." The first paragraph of the contract refers
to Vision as "the ‘Company.’"
On August 1, 1996, Duffy and Vision entered into a written resig-
nation agreement, but Duffy remained eligible for the bonus if VSI’s
assets or stock were sold before December 31, 1997. In December
1996 VSI sold substantially all of its assets to Newell Operating Com-
pany (Newell), an unrelated entity. Newell paid $6.9 million in cash
and agreed to assume certain of VSI’s liabilities, totaling about $2.3
million. Vision received $6.9 million in cash as a result of the sale.
On February 2, 1998, Duffy demanded payment of the bonus on the
DUFFY v. VISION HARDWARE GROUP 3
theory that Newell’s assumption of VSI’s liabilities was part of the
consideration received in the sale, bringing the total consideration to
$9.2 million. Vision refused to pay the bonus, arguing that it received
$6.9 million for the net assets of VSI.
Duffy sued Vision under the contract, and the district court granted
summary judgment to Vision. The court concluded that the term
"Company" in the contract refers to Vision, and not to VSI. This
means, according to the court, that when the contract speaks of "the
Company receiving consideration," it refers solely to Vision. Consid-
eration received by VSI but not by Vision did not count toward the
$8 million needed to trigger the bonus clause, according to the district
court. The court reasoned that because Vision was not independently
liable for VSI’s debts, Vision did not receive the benefit of Newell’s
assumption of those debts. Accordingly, the court held that Vision
had received only $6.9 million in consideration from the VSI sale,
and the bonus clause was not triggered. Duffy appeals.
II.
Duffy argues that the contract language is ambiguous. The bonus
is triggered "if and when the Company sells all or substantially all of
the outstanding stock or of the assets of VSI." Duffy points out that
while Vision owned all of VSI’s stock, VSI, not Vision, owned VSI’s
assets. Strictly speaking, Vision could not sell VSI’s assets because
it did not own them. If the term "Company" only refers to Vision, the
language that triggers the bonus — "when the Company sells . . . the
assets of VSI" — would be rendered meaningless because Vision
could not sell assets it did not own. Duffy argues that the only way
to give this sale of assets clause meaning is to interpret the term
"Company" to include the Company acting through VSI. If the term
"Company" encompasses this broader meaning, the next phrase, "the
Company receiv[es] consideration," would likewise encompass not
only the Company receiving consideration directly, but VSI receiving
consideration on behalf of the Company (Vision). Under this interpre-
tation, consideration received by VSI for the sale of its assets (in a
sale prompted by the Company) constitutes consideration received by
the Company. Thus, under Duffy’s theory the consideration received
by Vision in this case includes all consideration received by VSI on
4 DUFFY v. VISION HARDWARE GROUP
Vision’s behalf, namely, both the $6.9 million in cash and the $2.3
million in assumed debt, for a total of $9.2 million.
We agree with Duffy that the contract is ambiguous. Even so, we
believe that Duffy’s focus on the term "Company" is misplaced. The
contract opens by stating that it is "by and between VISION HARD-
WARE GROUP, INC. . . . (the ‘Company’), and JOSEPH J. DUFFY
. . . (the ‘Executive’)." The parenthetical following "Vision Hardware
Group, Inc." indicates that the term "Company" as used in the rest of
the contract refers to Vision. Indeed, throughout the contract the term
"Company" refers to Vision, not to Vision and/or VSI. In the bonus
clause itself, VSI Fasteners, Inc. is given its own separate parentheti-
cal shorthand, "VSI." Thus, we conclude that the contract clearly indi-
cates that the term "Company" refers only to Vision.
We need not force ambiguity into an otherwise clear and defined
term because the contract’s ambiguity is apparent without altering the
meaning of the term "Company." The contract states that the bonus
clause may be triggered "if and when the Company sells all . . . of
the . . . stock or of the assets of VSI." While the Company (Vision)
technically cannot sell VSI’s assets, it can, and in fact did, cause those
assets to be sold. Vision argues that instead of changing the meaning
of the term "Company," the term "sells" should be read to mean sells
or causes to be sold. Vision’s argument thus reveals that the term
"sells" is ambiguous.
Whatever the ambiguity of the term "sells" in "the Company sells
. . . the assets of VSI," the bonus clause also requires that the "VSI
Sale results in the Company receiving consideration in excess of [$8
million]." Because "Company" refers only to Vision, Vision argues
that Duffy must show that both the $6.9 million in cash and the $2.3
million in debt assumption were consideration received by Vision.
The phrase "the Company sells . . . the assets of VSI" and the
phrase "the Company receiv[es] consideration [from the sale]" are
independent predicates for the bonus, but the two phrases are also par-
allel. The contract contemplates the following as a trigger for the
bonus clause: (a) Vision "sells" VSI’s assets and (b) Vision "receiv-
[es] consideration" from the sale. Just as Vision cannot technically
sell VSI’s assets, neither can it technically receive consideration from
DUFFY v. VISION HARDWARE GROUP 5
a sale to which it is not a party. Thus, an ambiguity is present in the
term "receives," just as it is in the term "sells." Vision can only sell
VSI’s assets indirectly by prompting VSI to sell its assets on Vision’s
behalf; likewise, Vision can only receive consideration from the sale
indirectly by prompting VSI to receive the consideration on Vision’s
behalf.
If consideration "received" by Vision sometimes includes consider-
ation received by VSI, then Newell’s assumption of VSI’s debt, even
if only a direct benefit to VSI, could still arguably constitute consider-
ation "received" by Vision. We cannot determine from the language
of the contract precisely when and how consideration from a VSI
asset sale would constitute consideration received by Vision.
Duffy argues that Newell’s assumption of VSI’s debt should be
included in the consideration received by Vision because Vision
received the benefit of this arrangement. Duffy concedes that Vision
was not independently liable on the debt, but he argues that had New-
ell not assumed the debt, Vision would have been guilty of asset strip-
ping and held liable in an action to pierce the corporate veil.
Accordingly, Duffy argues, Vision received the benefit of the
assumption of debt.
Both parties agree that the contract is governed by New York law
under the choice of law provision. Although New York law does not
lightly disregard corporate formalities, it permits veil piercing in cer-
tain circumstances. Under New York law piercing the corporate veil
in a parent-subsidiary situation requires a showing: (1) that the parent
exercised complete domination over the subsidiary with respect to the
transaction attacked and (2) that the domination was exercised to
commit a fraud or wrong against the creditor. See Anderson St. Realty
Corp. v. RHMB New Rochelle Leasing Corp., 663 N.Y.S.2d 279(N.Y. App. Div. 1997); Rolls-Royce Motor Cars, Inc. v. Schudroff,
929 F.Supp. 117, 122 (S.D.N.Y. 1996).
If Vision, with the express purpose of defrauding VSI’s creditors,
had intentionally caused VSI to sell its assets while retaining its liabil-
ities, it seems clear that Vision could have been held liable for VSI’s
debts. See id. We can imagine other scenarios, however, where Vision
might not have been held liable for VSI’s debts, for instance, if the
6 DUFFY v. VISION HARDWARE GROUP
creditors were unable to prove sufficient control and domination by
Vision or were unable to prove a fraud or wrong. See Ansonia Assocs.
Ltd. v. Quik Park Ansonia Garage Corp., 686 N.Y.S.2d 418 (N.Y.
App. Div. 1999); Lou Atkins Castings, Inc. v. M. Fabrikant & Sons,
Inc., 628 N.Y.S.2d 98 (N.Y. App. Div. 1995). Some of the facts in
this case would appear to cut against any attempt to pierce the corpo-
rate veil. For example, Duffy has not alleged that Vision and VSI dis-
regarded corporate formalities, commingled funds, or had exactly the
same office space and employees. See United States v. Funds Held in
Name or for Benefit of Wetterer, 899 F.Supp. 1013, 1020 (E.D.N.Y.
1995) (listing factors to be considered for veil piercing).
Because Newell did in fact assume VSI’s debts, all of these scenar-
ios remain hypothetical. Our point is not to speculate as to what par-
ticular set of facts might have given rise to a successful action to
pierce the corporate veil, but rather to note that a veil piercing case
is difficult to prove under New York law. To convince us that the
assumption of VSI’s debt necessarily conferred a benefit on Vision,
regardless of the resolution of the contract’s ambiguity, Duffy would
have to show that in all of these possible scenarios, Vision ultimately
would have been held liable for VSI’s debts. Given the hypothetical
nature of Duffy’s argument and the stringent requirements of New
York law regarding veil piercing, Duffy has not made such a show-
ing.
Nevertheless, the parties clearly intended that consideration
received by VSI from a sale of its assets would, in some instances,
constitute consideration received by Vision. Thus, even discounting
Duffy’s veil piercing argument, it remains unclear to this point
whether Newell’s assumption of VSI’s debt counts as part of the con-
sideration received by Vision from the VSI asset sale.
Vision argues that assumption of debt was not intended to count as
part of consideration received under any circumstances. If the parties
had intended for debt assumption to count, they would have said so
specifically, according to Vision. Vision points to other employment
contracts between VSI and its executives that also contain a bonus
clause triggered by the sale of VSI assets. These contracts explicitly
provide that the bonus is triggered and calculated on the basis of "ag-
gregate consideration," which "shall include all obligations of [VSI]
DUFFY v. VISION HARDWARE GROUP 7
assumed by a purchaser in a Transaction." According to Vision, these
contracts show that had Duffy and Vision intended for consideration
to include debt assumed, they would have said so explicitly. The
problem here could have been avoided had the parties used more spe-
cific language. But just as Vision and Duffy could have clearly
explained that consideration included debt assumed, they also could
have clearly explained that consideration excluded debt assumed. The
fact that the parties could have been more explicit may not, on its
own, support either side. Of course, if Vision can show that the par-
ties actually considered and rejected such "aggregate consideration"
language in this case, this would support its argument that consider-
ation does not include debt assumed. As the record stands at this
point, the contract does not clearly indicate either inclusion or exclu-
sion of debt assumed, so it remains ambiguous.
For the foregoing reasons, we hold that the contract is ambiguous
because it does not clearly indicate when and how consideration
received by VSI in a VSI asset sale constitutes consideration received
by Vision. Additionally, the contract is silent as to whether consider-
ation received from a VSI asset sale ever includes debt assumed. The
resolution of these issues depends on evidence external to the con-
tract. Accordingly, we vacate the award of summary judgment and
remand to the district court for further proceedings on the meaning of
the bonus clause.
VACATED AND REMANDED