Ramlall v. Mobilepro Corp.

²⁴ MATRICCIANI, J. On June 4, 2009 appellant, Richard Ramlall, filed a complaint against appellees, MobilePro Corp. and CloseCall America, Inc., in the Circuit Court for Montgomery County seeking damages of $144,999.99 for breach of contract. On May 18, 2010 the circuit court granted MobilePro’s motion for summary judgment, and following a bench trial on July 14, 2010 the circuit court granted CloseCall’s motion for judgment. Ramlall presents two questions for our review, which we have rephrased as follows: I. Did the circuit court err in granting MobilePro’s motion for summary judgment?

II

Did the circuit court err in granting CloseCall’s motion for judgment? For the reasons set forth below, we affirm the judgment of the circuit court as to MobilePro, and vacate the judgment of the circuit court as to CloseCall and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY The Parties There are three parties to this case: appellant Richard Ramlall, appellee MobilePro Corp., a Delaware Corporation (“MobilePro”), and appellee CloseCall America, Inc., a Delaware corporation (“CloseCall (DE)”). Two other corporations play a role.

MVCC Acquisition Corp. is a Delaware corporation (“MVCC”) and a wholly owned subsidiary of MobilePro. CloseCall America, Inc. (“CloseCall (MD)”) was a Maryland corporation and is Ramlall’s former employer. MVCC and CloseCall (MD) merged in October of 2009, and the surviving corporation assumed the name CloseCall (DE) and remained a subsidiary of MobilePro. The Billing Dispute In 2002 CloseCall (MD) hired Ramlall to negotiate a billing dispute among CloseCall (MD), Verizon Maryland Inc., and ²⁵ Verizon New Jersey Inc. (collectively “Verizon”).

The record does not reveal the details of the dispute, but it seems that Verizon and CloseCall (MD) entered into various arrangements under which Verizon provided telecommunication services and facilities to CloseCall (MD). At some point, Verizon began billing CloseCall (MD) for “voice services” that Close-Call (MD) claimed it had not received. Litigation between the parties followed, and CloseCall (MD) also filed a complaint against Verizon with the Maryland Public Service Commission. Ramlall assisted CloseCall (MD) by preparing and responding to interrogatories, collecting and investigating prior bills, and advising CloseCall (MD) based on his experience as a former employee of Verizon.

As a result of the billing dispute, CloseCall (MD) withheld monies from Verizon’s monthly bills that accumulated to $2,209,866. Verizon sued CloseCall (MD) to recover that amount and CloseCall (MD) filed counterclaims. The two eventually negotiated a settlement whereby CloseCall (MD) would pay Verizon between $750,000 and $800,000, Verizon would waive its claims to $1,459,886 of the withheld monies, and CloseCall (MD) would waive its counterclaims and stipulate to a dismissal with prejudice of its complaint before the Public Service Commission. Ramlall was one of the lead negotiators during this settlement process, along with former CloseCall (MD) employees Tom Mazerski and Greg Van Allen.

CloseCall (MD) and Ramlall initially agreed to an hourly rate of $110 for Ramlall’s compensation. At a certain point in the billing dispute, Ramlall began working more billable hours than CloseCall (MD) could afford to pay him. CloseCall (MD) advised Ramlall that it was capping his billable time at twenty hours per week and instructed him to keep track of any additional hours he worked. The parties later negotiated a contingent “bonus” fee to be divided equally by Ramlall, Mazerski, and Van Allen.

The Merger Before Ramlall could collect his fee, CloseCall (MD) merged ²⁶ with MVCC and subsequently dissolved. 1 MVCC incorporated in Delaware on August 4, 2004. MVCC was a wholly owned subsidiary of MobilePro and was created for the express purpose of merging with CloseCall. 2 On August 31, 2004 MobilePro, MVCC, and CloseCall (MD) entered into an Agreement and Plan of Merger (“merger agreement”). The parties amended the merger agreement on September 1, 2004. Amended section 1.2 provides Effect of the Merger; Closing.

At and after the Effective Time, the Merger shall have the effects set forth in this Agreement and the applicable provisions of Delaware Law and Maryland Law. At the Effective Time all the property, rights, privileges, powers and franchises of [CloseCall (MD) ] and [MVCC] will vest in the Surviving Corporation, and all debts, liabilities and duties of [CloseCall (MD) ] and [MVCC] not paid by [CloseCall (MD) ] and [MVCC], respectively, at or before Closing will become the debts, liabilities and duties of the Surviving Corporation. The merger agreement incorporated a disclosure statement from CloseCall (MD) to MVCC. Section 2.14 of the disclosure statement reads, in relevant part: ²⁷ Verizon—billing disputes. [CloseCall (MD) ] has, since approximately 2002, been involved in a billing dispute with Verizon.

The Compensation Committee of CloseCall [ (MD) ] have agreed that, in the event the disputes were resolved in favor of CloseCall [ (MD) ], a bonus equal to 10% of the refund shall be paid to three CloseCall [ (MD) ] employees: Tom Mazerski, Greg Van Allen and Richard Ramlall. The obligation will remain in place after the consummation of the merger. The effect and interpretation of section 1.2 of the merger agreement and section 2.14 of the disclosure statement will be discussed in more detail below. MVCC and CloseCall (MD) merged on October 15, 2004, after which MVCC survived as the successor corporation and CloseCall (MD) dissolved.

As noted above, MVCC then changed its name to CloseCall (DE). Thus, the surviving Delaware corporation created by the merger of CloseCall (MD) into MVCC is appellee CloseCall (DE). The Lawsuit Neither CloseCall (DE) nor MobilePro paid Randall's bonus fee, which he alleged was $48,333.33. 3 Ramlall filed a complaint in the Circuit Court for Montgomery County on June 4, 2009. In his amended complaint, filed on August 21, 2009, Ramlall sought treble damages of $144,999.99 under the Maryland Wage Payment and Collection Law, 4 plus interest, attorney’s fees, and costs.

Ramlall argued that CloseCall (DE) is liable for his bonus fee because it is the successor corporation to the merger between CloseCall (MD) and MVCC. Ramlall argued further that MobilePro, as parent corporation of Close- ²⁸ Call (DE), is responsible for the debts and liabilities of Close-Call (DE). The parties filed cross-motions for summary judgment in March of 2010. The circuit court held a motions hearing on May 18, 2010, after which it denied Randall's motion for summary judgment, denied CloseCall (DE)’s motion for summary judgment, and granted MobilePro’s motion for summary judgment.

The circuit court conducted a bench trial on July 13, 2010. At the close of Ramlall’s case, CloseCall (DE) moved for judgment, arguing, among other things, that “an objective interpretation of the purported bonus agreement reveal[ed] that Ramlall would only be paid if there was a refund, and there was no refund.” The circuit court then engaged in the following colloquy with Randall's trial counsel, Stanley Jacobs: THE COURT: Why isn’t 2.14 controlling as to what the basis of the claim is? Section 2.14. MR.

JACOBS: I don’t think it is. THE COURT: You don’t think it is? MR. JACOBS: No, sir.

I think you get the witness, you’ve got three witnesses testifying, one who is CEO and president of the company that he made a promise to him to pay him a bonus. All the details of the bonus are in. I don’t think there is any question about the amount or anything like that. And you’ve got emails in there from the other side confirming the payment of a bonus.

So I don’t know that this document really is something to explain it. Thank you. THE COURT: Well, the email that you’re referring to is identified as Plaintiffs Exhibit 6,1 think it’s also a duplicate of another exhibit. But specifically, it’s an email from Mr. Van Allen which refers again to section 2.14.

And where the plaintiff is making the claim of entitlement to a bonus, and that bonus is based upon ten percent of a refund that was received by CloseCall. ²⁹ I mean, I certainly understand what has been testified to here today, but plaintiff is claiming entitlement to a bonus, and the bonus is based upon a refund. There is no evidence that the refund was paid out. Accordingly, I’ll grant the motion for judgment. The circuit court entered an order granting judgment in favor of CloseCall (DE) on July 14, 2010.

Ramlall timely noted an appeal to this Court on August 5, 2010. DISCUSSION I. Summary Judgment for MobilePro Ramlall argues that MobilePro exercised sufficient control over CloseCall (DE) to justify piercing the corporate veil of CloseCall (DE) and holding MobilePro liable for CloseCall (DE)’s debts and obligations. 5 MobilePro counters that it is a separate corporate entity from CloseCall (DE) and cannot be held liable for the obligations of CloseCall (DE) solely by virtue of its ownership of and control over CloseCall (DE). At the May 18 motions hearing, the circuit court held: “[gjoing to the first issue of whether or not defendant MobilePro is an appropriate defendant, [Ramlall] has established no basis to pierce the corporate veil. There’s no evidence that MobilePro was responsible for the debts of [CloseCall (DE) ], or that MobilePro entered into the agreement with plaintiff.

Therefore, summary judgment is granted to defendant MobilePro Corporation.” Standard of Review Summary judgment is proper where the motion and response show that there is no genuine dispute as to any ³⁰ material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. Md. Rule 2-501(f). We review the circuit court’s grant of a motion for summary judgment de novo and ask whether the trial court was correct as a matter of law. Chesek v. Jones, 406 Md. 446, 458 , 959 A.2d 795 (2008).

We review the factual record independently and view all facts and inferences in a light most favorable to the non-moving party. David A. Bramble, Inc. v. Thomas, 396 Md. 443, 453-54 , 914 A.2d 136 (2007). We first examine whether a genuine dispute of material fact exists; if there is no dispute of material fact, we next determine whether the trial court was correct in granting summary judgment as a matter of law. Hines v. French, 157 Md.App. 536, 549 , 852 A.2d 1047 (2004). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” Id.

(quoting King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985)). A review of the record shows that there is no dispute of material fact. Ramlall’s confusion over the parties to, and effect of, the October 15 merger notwithstanding, the record does not reveal any facts that could affect the outcome as to MobilePro. As such, we proceed to review the circuit court’s conclusion of law.

In other words, we are to determine whether the circuit court was legally correct in concluding that MobilePro could not be held liable for CloseCall (DE)’s obligations—whatever they may be. MobilePro’s Liability for Ramlall’s Bonus The Court of Appeals set forth the standard for piercing the corporate veil in Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc.: The most frequently enunciated rule in Maryland is that although courts will, in a proper case, disregard the corporate entity and deal with substance rather than form, as though a corporation did not exist, shareholders generally are not held individually liable for debts or obligations of a corporation except where it is necessary to prevent fraud or enforce a paramount equity. ³¹ 275 Md. 295, 310 , 340 A.2d 225 (1975). Thus, we may pierce the corporate veil of CloseCall (DE) only based on fraud or proof that it is necessary to enforce a paramount equity. Understandably, Ramlall asserts that securing payment of his bonus fee is a paramount equity.

We have previously stated, however, that “[d]espite the proclamation that a court may pierce the corporate veil to enforce a paramount equity, arguments that have urged a piercing of the veil for reasons other than fraud have failed in Maryland courts.” Residential Warranty Corp. v. Bancroft Homes Greenspring Valley, Inc., 126 Md.App. 294, 307 , 728 A.2d 783 (1999) (internal quotation and citation omitted). Further, “[n]otwithstanding its hint that enforcing a paramount equity might suffice as a reason for piercing the corporate veil, the Court of Appeals to date has not elaborated upon the meaning of this phrase or applied it in any case of which we are aware.” Travel Committee, Inc. v. Pan American World Airways, Inc., 91 Md.App. 123, 158 , 603 A.2d 1301 (1992). With no precedent approving this extraordinary remedy, we decline to pierce the corporate veil of CloseCall (MD) to impose liability on MobilePro based on the paramount equity justification. Maryland courts may also pierce the corporate veil where it is necessary to prevent fraud.

Bart Arconti & Sons, 275 Md. at 310 , 340 A.2d 225 . When asking a court to pierce the corporate veil, the “burden of proof is on the one charging fraud to establish by clear, specific acts, facts that in law constitute fraud.” Starfish Condo. Ass’n v. Yorkridge Serv. Corp., 295 Md. 693, 714 , 458 A.2d 805 (1983) (internal quotation and citations omitted).

Ramlall’s pleadings, arguments in the circuit court, and briefs to this court fail to allege specific acts of fraud on the part of MobilePro. Further, the mere fact that MobilePro created an acquisition subsidiary to effectuate a forward triangular merger does not constitute fraudulent action. The forward triangular merger scheme has recognized benefits. See Balotti and Finkelstein, The Delaware Law of Corporations and Business Organizations, § 9.7 (Aspen Law & Business 1998) (“The advantage of this type of ³² merger is that [the target] will become a wholly-owned subsidiary of [the acquiring corporation] without any change in its corporate existence.

Thus, the rights and obligations of [the target], the acquired corporation, are not transferred, assumed or affected.”). Based on our review of the record, we hold that Ramlall has not met his burden of establishing fraud by clear, specific acts. Ramlall’s lone piece of evidence supporting his contention that MobilePro exercised control over CloseCall (DE) is that Jay Wright, former CEO of MobilePro and MVCC, exercised signature authority for both companies during the merger. We interpret this argument to be the “instrumentality” justification for piercing the corporate veil that is sometimes recognized in other jurisdictions.

See e.g., National Bond Finance Co. v. General Motors Corp., 238 F.Supp. 248 (W.D.Mo.1964) (declining to hold a parent corporation liable for the acts of its subsidiary, but noting that because of the level of control the parent corporation exerted, piercing the corporate veil may be appropriate in some situations). As discussed above, Maryland courts will pierce the corporate veil only where it is necessary to prevent fraud or enforce a paramount equity. Bart Arconti & Sons, 275 Md. at 310 , 340 A.2d 225 . Maryland is more restrictive than other jurisdictions in applying the doctrine.

See Residential Warranty, 126 Md.App. at 307 n. 13, 728 A.2d 783 (quoting G. Michael Epperson & Joan M. Canny, The Capital Shareholder’s Ultimate Calamity: Pierced Corporate Veils and Shareholder Liability in the District of Columbia, Maryland, and Virginia, 37 Cath. U.L.Rev. 605, 621 (1988) (stating that Maryland courts “simply have not found an equitable interest more important than the state’s interest in limited shareholder liability,” and observing that “Maryland courts admit little of the discretion invoked by the courts of neighboring jurisdictions”)). Thus, Ramlall’s “instrumentality” theory is not a basis to pierce the corporate veil in Maryland. Without factual evidence to link the merger between Close-Call (MD) and MVCC to fraudulent actions by MobilePro, Ramlall is unable to generate a genuine dispute of material ³³ fact sufficient to defeat MobilePro’s motion for summary judgment.

The circuit court expressly found that there was no fraud and that no paramount equity was present which required “the intervention of equity’s awesome powers.” See Dixon v. Process Corp., 38 Md.App. 644, 655 , 382 A.2d 893 (1978). We agree, and see no reason to disregard the corporate entity. The circuit court did not err in granting summary judgment in favor of MobilePro.

II

Judgment for CloseCall (DE) Ramlall argues that the circuit court entered judgment in favor of CloseCall (DE) by “assuming in error that appellant was to be paid out of a refund.” He maintains that the “refund” restriction appears only in the disclosure statement attached to the merger agreement between MVCC and Close-Call (MD). Ramlall argues that because he was not a party to the merger agreement, its “refund” restriction is not binding on him. Instead, Ramlall contends that the operative agreement is an oral contract he made with CloseCall (MD) that contained no such restriction. CloseCall (DE) contends that the disclosure statement does indeed control the dispute here, as a memorialization of the parties’ oral agreement.

CloseCall (DE) maintains that, under an objective interpretation of the disclosure statement, we must honor its unambiguous language and hold that Ramlall was owed a bonus only in the event of a refund. Because Verizon never refunded any money to CloseCall (MD) during the billing dispute, CloseCall (DE) argues that CloseCall (MD) did not owe the bonus to Ramlall. Thus, CloseCall (DE) concludes, after the merger CloseCall (DE) did not owe any money to Ramlall. Standard of Review A party may move for judgment at the close of the evidence offered by an opposing party.

Md. Rule 2-519(a). When a defendant does so at the close of the evidence offered by the plaintiff in a bench trial, “the court may proceed, as the trier of fact, to determine the facts and to render judgment ³⁴ against the plaintiff or may decline to render judgment until the close of all the evidence.” Id. § 2-519(b). Our review of the circuit court’s order granting CloseCall (DE)’s motion for judgment is governed by Rule 8—131(c), which provides: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witness. “The clearly erroneous standard does not apply to the circuit court’s legal conclusions, however, to which we accord no deference and which we review to determine whether they are legally correct.” Cattail Assocs. v. Sass, 170 Md.App. 474, 486 , 907 A.2d 828 (2006). ‘When reviewing a trial court’s construction of a contract, we do so as a matter of law.” Id.

(internal citation omitted). CloseCall (DE)’s Liability for Randall’s Bonus Ramlall’s argument consists of two parts. First, CloseCall (MD) owed him a bonus that was based on the benefit he obtained for CloseCall (MD) in the settlement negotiations, and that this bonus was not tied to any “refund.” Second, if CloseCall (MD) owed Ramlall the bonus, then after the merger between MVCC and CloseCall (MD), CloseCall (MD)’s obligation to pay him a bonus became CloseCall (DE)’s obligation to pay him a bonus. To evaluate whether these arguments have merit, we look first to the corporate law of Maryland, and then to the common law principles of contract interpretation.

Statutory Merger Provisions 6 The general rule of corporate liability is that successor corporations are not liable for the debts and obligations ³⁵ of their predecessor corporations. Baltimore Luggage Co. v. Holtzman, 80 Md.App. 282, 290 , 562 A.2d 1286 (1989). There are, however, four exceptions to this general rule. The debts and liabilities of the predecessor corporation are imposed on the successor corporation when (1) there is an expressed or implied assumption of liability; (2) the transaction amounts to a consolidation or merger; (3) the purchasing corporation is a mere continuation of the selling corporation; or (4) the transaction is entered into fraudulently to escape liability for debts.

Id. (internal citations omitted) (emphasis added). The record does not support exceptions (3) or (4), but it does establish that the transaction between CloseCall (DE) ³⁶ and CloseCall (MD) met two of the exceptions to the general non-liability rule. First, section 1.2 of the merger agreement contained an express agreement that CloseCall (DE) would assume all liabilities of CloseCall (MD).

Second, the transaction constituted a merger between the two corporations. Ramlall made no allegations regarding the express or implied agreement exception, so we will address only exception (2), which has been codified in Maryland. Maryland Code (1976, 2007 Repl. Vol.), Corporations and Associations Article (“CA”) § 3—114(f)(1) provides that, when there is a consolidation or merger, “the successor is liable for all the debts and obligations of each nonsurviving corporation.” 7 Under CA §§ 1— 101(x)(2) and 3—114(f)(1), CloseCall (DE) is the successor corporation to the October 15 merger, and is therefore liable for all the debts and obligations of CloseCall (MD).

There is little to argue about in the statute. Corporations and Associations Article § 3—114(f)(1) states simply that in the event of a merger, “the