UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KEVIN R. HUENNEKENS,
Trustee-Appellant,
v.
PATRYK RECZEK; EDWARD T. GILLER,
Defendants-Appellees, No. 01-1324
and
JILL EDNEY,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-00-380, BK-98-03061, AP-97-35052-T)
Argued: June 5, 2002
Decided: August 5, 2002
Before TRAXLER and KING, Circuit Judges,* and Bobby R.
BALDOCK, Senior Circuit Judge of the United States Court of
Appeals for the Tenth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
*This appeal was initially assigned to a panel consisting of Judge
Traxler, Judge King, and Judge Bobby R. Baldock, Senior United States
Circuit Judge for the Tenth Circuit. Due to a scheduling conflict, Senior
Judge Baldock was unable to hear and participate in oral argument. By
consent of the parties this appeal was heard and determined by a quorum
of the assigned panel. See 28 U.S.C. § 46(c) & (d).
2 HUENNEKENS v. RECZEK
COUNSEL
ARGUED: Lynn Lewis Tavenner, TAVENNER & BERAN, P.L.C.,
Richmond, Virginia, for Appellant. Michael Joseph Champlin,
BOWEN, BRYANT, CHAMPLIN & CARR, Richmond, Virginia;
Joel S. Aronson, RIDBERG, PRESS & SHERBILL, L.L.P.,
Bethesda, Maryland, for Appellees. ON BRIEF: Paulo E. Franco, Jr.,
WRIGHT, ROBINSON, OSTHIMER & TATUM, Richmond, Vir-
ginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kevin R. Huennekens, the bankruptcy trustee (the "Trustee") of
debtor SunSport, Incorporated ("SunSport"), appeals the decision of
the district court affirming an earlier decision of the bankruptcy court
for the Eastern District of Virginia. See Huennekens v. Reczek, Mem-
orandum Opinion, 3:00CV380 (E.D. Va. Feb. 7, 2001) (the "District
Court Opinion"); In re: SunSport, Inc., 97-35052-T (Bankr. E.D. Va.
Apr. 1, 2000) (the "Bankruptcy Opinion"). The Trustee maintains that
two errors warrant reversal. First, he asserts that the district court
erred in failing to hold an individual shareholder personally liable for
corporate obligations. Second, he contends that a default judgment
entered against one of SunSport’s shareholders was erroneously mod-
ified. As explained below, these contentions lack merit, and we
affirm.
HUENNEKENS v. RECZEK 3
I.
A.
In 1994, Peter Mills, Sandra Mills, and Patryk Reczek established
a company called UltraBronz USA, Inc. ("UltraBronz"). In 1995,
UltraBronz became the exclusive distributor in this country of high-
pressure tanning beds manufactured by Barclay Leisure.1 UltraBronz
sold and marketed the Barclay Leisure tanning beds under an Ultra-
Bronz label. While it was initially successful, UltraBronz’s business
prospects deteriorated by the end of 1996, due largely to the fact that
it was seeking to develop its own high-pressure tanning bed. In
response to the business decline and to UltraBronz’s increasing finan-
cial problems, Mr. and Ms. Mills, in July 1996, founded SunSport.
UltraBronz then transferred its development work on the high-
pressure tanning bed to SunSport, and SunSport began shipping pro-
totypes of the bed to its customers and distributors in late 1996.2 By
January 1997, UltraBronz had transferred all of its assets to SunSport,
and the principal officers and directors of SunSport were the same as
the UltraBronz management.
SunSport soon began experiencing its own financial difficulties. A
significant part of these problems was that Barclay Leisure initiated
trade dress litigation against SunSport, arising out of its alleged copy-
ing of the Barclay Leisure tanning bed. In light of these develop-
ments, Mr. Mills and Reczek decided that SunSport required outside
investment. In early 1997, SunSport entered into negotiations with
Edward T. Giller, a distributor of tanning beds for UltraBronz and
SunSport, and Giller ultimately agreed to invest $300,000. Giller, Mr.
Mills, and Reczek agreed among themselves that Giller’s $300,000
investment in SunSport would be accomplished by capitalizing a shell
corporation called Gilcom with Giller’s money, and by Gilcom then
1
A high-pressure tanning bed utilizes quartz lamps, rather than the
flourescent tubular lamps used by conventional tanning beds. The quartz
lamps purportedly decrease the length of time necessary for a successful
tanning process.
2
The prototypes of the SunSport high-pressure tanning bed closely
resembled, in both appearance and technology, the Barclay Leisure tan-
ning bed.
4 HUENNEKENS v. RECZEK
purchasing SunSport’s assets for that sum. The sale of SunSport’s
assets to Gilcom was consummated on March 7 and 8, 1997. Sun-
Sport’s assets were valued at $327,125, and in purchasing these assets
Gilcom paid SunSport $240,120 in cash, plus other consideration. On
completion of the transaction, Mr. and Ms. Mills, along with Reczek,
collectively became fifty percent shareholders of Gilcom, with Giller
owning the remaining shares of Gilcom.
Despite the sale of its assets to Gilcom in March 1997, SunSport
operated as one of Gilcom’s distributors until the beginning of July
1997. During this period, Giller, Mr. Mills, and Reczek actively con-
cealed Gilcom’s purchase of SunSport’s assets from customers and
vendors who had favorable relationships with SunSport. At the same
time, however, they concealed the Gilcom involvement of Mr. Mills
and Reczek from customers and vendors who had negative reactions
to SunSport. This marketplace confusion was exacerbated by Gil-
com’s continuing use of SunSport’s phone numbers, internet site, dis-
tributor network, and employee base. Moreover, Gilcom decided to
form a subsidiary, Simply Tan USA, Inc. ("Simply Tan"), to take over
its distribution business and pay some of SunSport’s outstanding
debts, further obfuscating the relationship between SunSport and Gil-
com.
In July 1997, both SunSport and UltraBronz filed for bankruptcy
in the Eastern District of Virginia and, in December 1997, the bank-
ruptcy court ordered consolidation of the two cases. At that time, the
court appointed Kevin R. Huennekens as Trustee in the consolidated
case. Mr. and Ms. Mills, however, refused to cooperate with the
Trustee. In particular, they declined to provide the Trustee with
important records relating to SunSport, including accounting records
from the debtor’s computers. In fact, Mr. and Ms. Mills failed to pro-
vide the Trustee with accurate business records; instead, they misled
the Trustee with re-created books and accounts that could not be rec-
onciled. Mr. Mills also did not disclose to the Trustee the March 1997
purchase of SunSport’s assets by Gilcom, and the Trustee did not
learn of the Gilcom asset purchase until September 1997. Finally,
after the bankruptcy filings, Giller continued to negotiate checks pay-
HUENNEKENS v. RECZEK 5
able to SunSport, thereby interfering with the Trustee’s management
of SunSport’s affairs.3
B.
On May 26, 1998, the Trustee filed a twenty-two count adversary
proceeding (the "Complaint") in bankruptcy court against, inter alia,
Gilcom, Simply Tan, Giller, Reczek, and Mr. and Ms. Mills. In rele-
vant part, the Complaint alleged that Gilcom and Simply Tan were
alter ego corporations of SunSport and that the unity of ownership
and control between the individual and corporate defendants required
that the corporate forms be disregarded. Specifically, the Complaint
maintained that Giller and Reczek, along with Mr. and Ms. Mills,
should be held personally and individually liable for SunSport’s obli-
gations.
Prior to the trial of this adversary proceeding, the Trustee reached
a settlement with Mr. and Ms. Mills, which the bankruptcy court
approved. The claims against Mr. and Ms. Mills were accordingly
dismissed, and the claims against Giller and Reczek proceeded to trial
on July 14, 1999. Reczek, however, had failed to comply with a court
order requiring responses to interrogatories, and he also failed to
attend or participate in the trial. As a result, prior to issuing the Bank-
ruptcy Opinion, the court, on July 20, 1999, entered a default judg-
ment against Reczek in the sum of $4,283,023.59. Reczek then moved
the court to reconsider and vacate the judgment. In November 1999,
the court denied his motion, but it took under advisement the amount
of the judgment.
In April 2000, the bankruptcy court issued its Bankruptcy Opinion
concluding, inter alia, that Gilcom and Simply Tan were alter ego cor-
porations of each other and of SunSport, and that they "should be held
jointly liable for SunSport’s debts." Bankruptcy Opinion at 23. The
Opinion further concluded that "the evidence for veil piercing is just
not sufficient to hold Giller . . . personally liable for Gilcom or Sim-
3
Giller personally negotiated at least two checks payable to SunSport,
and he deposited the funds in Gilcom’s bank account. Giller endorsed the
checks "PAY TO GILCOM CORP. OF VA., SUCCESSOR TO SUN-
SPORT, INC. BY EDWARD GILLER." See Bankruptcy Opinion at 15.
6 HUENNEKENS v. RECZEK
ply Tan’s debt to SunSport."4 Id. at 27. Finally, the court reduced the
default judgment against Reczek to the sum which the Trustee had
expended in "attorneys fees and costs in opposing Reczek’s motion
to vacate the default judgment." Id. at 53.
Thereafter, on April 10, 2000, the Trustee appealed to the district
court two aspects of the Bankruptcy Opinion. First, he contested the
Bankruptcy Opinion’s ruling against imposing personal liability on
Giller for Gilcom’s or Simply Tan’s obligations to SunSport and, sec-
ond, he contested the modification of the default judgment against
Reczek. After considering the Trustee’s contentions, the district court
on February 7, 2001, affirmed the bankruptcy court on both issues.
See District Court Opinion. The Trustee filed a timely notice of
appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 158(d).
II.
We review de novo a district court’s examination of a bankruptcy
court’s decision, utilizing the same standard of review applied by the
district court. In re: Shangra-La, Inc., 167 F.3d 843, 847 (4th Cir.
1999). Thus, we review findings of fact for clear error and conclu-
sions of law de novo. In re: Bulldog Trucking, Inc., 147 F.3d 347, 351
(4th Cir. 1998). On the other hand, we review for abuse of discretion
a decision to reconsider and modify a default judgment. Hirschkop &
Grad, P.C. v. Robinson, 757 F.2d 1499, 1503-04 (4th Cir. 1985).
III.
In his appeal, the Trustee seeks reversal of the district court on two
points. First, he contends that the court erred by refusing to hold
Giller, an individual shareholder, personally liable for the corporate
obligations of Gilcom or Simply Tan to SunSport. Second, he con-
4
Because, as the bankruptcy court found, Gilcom, Simply Tan, and
SunSport are alter egos of one another, the idea that one of the three cor-
porations was indebted to one of the others is a fiction. Although the
bankruptcy court characterized its inquiry as whether Giller could be
held liable for Gilcom’s or Simply Tan’s debts to SunSport, it appears
to have been analyzing whether Giller was an alter ego of the entity it
recognized as these three corporations.
HUENNEKENS v. RECZEK 7
tends that the bankruptcy court abused its discretion in modifying the
default judgment against Reczek.
A.
The Supreme Court of Virginia has made clear that the imposition
of liability on individual shareholders for the financial obligations of
their corporation is an extraordinary event. O’Hazza v. Executive
Credit Corp., 431 S.E.2d 318, 320 (Va. 1993) (quoting Cheatle v.
Rudd’s Swimming Pool Supply Co., Inc., 360 S.E.2d 828, 831 (Va.
1987)) ("Ignoring the separate existence of a corporation and impos-
ing personal liability on shareholders for debts of the corporation is
an extraordinary act to be taken ‘only when necessary to promote jus-
tice.’"). Indeed, a party "seek[ing] to disregard the corporate entity
must show that the shareholder sought to be held personally liable has
controlled or used the corporation to evade a personal obligation, to
perpetrate fraud or a crime, to commit an injustice, or to gain an
unfair advantage." Id. (citing Lewis Trucking Corp. v. Common-
wealth, 147 S.E.2d 747, 753 (Va. 1966)). Moreover, a court ruling
which pierces the corporate veil, and which subjects an individual
shareholder to personal liability for corporate obligations, is only
"justified when the unity of interest and ownership is such that the
separate personalities of the corporation and the individual no longer
exist." Id. at 320-21 (citing Lewis Trucking, 147 S.E.2d at 753-54).
Of course, any issue that involves the piercing of a corporate veil
"is sui generis," that is, it requires "examination of the particular fac-
tual circumstances surrounding the corporation and actions in ques-
tion." Id. at 321. And, of course, any issues concerning such claims
are unquestionably factual, and they are "within the province of the
trial court." Id. (internal citations omitted). In this case, the bank-
ruptcy court found the evidence to be insufficient to hold Giller per-
sonally liable for the obligations of Gilcom or Simply Tan to
SunSport. Bankruptcy Opinion at 27. As the court found, the Trustee
failed to present evidence sufficient to demonstrate that Giller had
commingled his personal assets with the assets of Gilcom, that he had
otherwise disregarded the corporate form, or that he had used Gil-
com’s resources to meet his personal obligations. Id. at 28 ("[I]t has
not been shown that Giller . . . treated the assets of Gilcom as [his]
own, commingled personal and corporate accounts, or that [he] disre-
8 HUENNEKENS v. RECZEK
garded corporate formalities to such a degree that the corporate form
ought to be ignored.").
Under the scenario presented here, the finding of the bankruptcy
court that "the evidence for veil piercing is just not sufficient to hold
Giller . . . personally liable for Gilcom or Simply Tan’s debt to Sun-
Sport," id. at 27, is supported by the evidence, and it is consistent with
the applicable legal principles. As such, we agree with the district
court that the decision of the bankruptcy court on this question should
not be disturbed.
B.
In a bankruptcy proceeding, Rule 9024 of the Federal Rules of
Bankruptcy Procedure governs any effort to obtain relief from a
default judgment. Rule 9024, in turn, makes Rule 60 of the Federal
Rules of Civil Procedure applicable to bankruptcy proceedings.5 And,
in this circuit, a party seeking relief under Rule 60(b) must make a
threshold showing of "timeliness, a meritorious defense, a lack of
unfair prejudice to the opposing party, and exceptional circum-
stances." Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d
46, 48 (4th Cir. 1993) (internal citations and quotations omitted). If
this threshold showing is made, the party must also satisfy one of the
six enumerated sub-sections of Rule 60(b) — (1) mistake, inadver-
tence, surprise, or excusable neglect; (2) newly discovered evidence;
(3) fraud; (4) void judgment; (5) satisfied judgment; or (6) any other
reason justifying relief. Significantly, any doubt as to whether a court
should grant relief under Rule 60(b) is resolved in favor of the mov-
ing party. Augusta Fiberglass Coating, Inc. v. Fodor Contracting
Corp., 843 F.2d 808, 811-12 (4th Cir. 1988).
In this case, as the district court acknowledged, the bankruptcy
court failed to specifically utilize the analytical framework developed
by our Court for assessing whether to award Rule 60(b) relief. See
5
Rule 9024 provides, in relevant part, that "Rule 60 F.R.Civ.P. applies
in cases under the Code." Rule 60(b) empowers a court "upon such terms
as are just, . . . [to] relieve a party . . . from a final judgment [for] . . .
excusable neglect; . . . or any other reason justifying relief from the oper-
ation of the judgment."
HUENNEKENS v. RECZEK 9
District Court Opinion at 11. Nonetheless, the district court did not
err in affirming the bankruptcy court’s modification of the default
judgment against Reczek. The bankruptcy court’s findings of fact,
when carefully examined, satisfy our standard, from a substantive
standpoint, for an award of Rule 60(b) relief. Indeed, the court found
that the interests of justice required modification of the default judg-
ment. If the judgment had been permitted to stand, Reczek would
have been the only individual shareholder of SunSport facing per-
sonal liability for its corporate obligations. Bankruptcy Opinion at 52;
see also Augusta Fiberglass, 843 F.2d at 812. Because the bankruptcy
court’s findings are sufficient to satisfy the requirements for Rule
60(b) relief, the district court did not err in affirming the modification
of the default judgment.
IV.
Pursuant to the foregoing, we affirm the decision of the district
court.
AFFIRMED