James R. Loftus; Mitchell Rosenfeld v. VISTARMS, INCORPORATED, No. 02-2320 

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JAMES R. LOFTUS; MITCHELL
ROSENFELD,
Plaintiffs-Appellants,
v.
VISTARMS, INCORPORATED, No. 02-2320 
Defendant-Appellee,
and
THOMAS L. ARNOLD,
Defendant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-02-140-A)
Argued: June 4, 2003
Decided: July 9, 2003
Before MICHAEL and MOTZ, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Geoffrey Stetson Gavett, GAVETT & DATT, P.C.,
Rockville, Maryland, for Appellants. Scott S. Ives, IVES & ASSO-
CIATES, Sterling, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James Loftus and Mitchell Rosenfeld sued VistaRMS, Inc. for
breach of its obligation to act as guarantor on a loan owed to them.
The district court granted summary judgment in favor of VistaRMS.
We affirm.
I.
On November 13, 1996, Thomas Arnold signed a Settlement
Agreement and Mutual Release in which he agreed to pay James Lof-
tus $780,000; Mitchell Rosenfeld, Loftus’s former attorney, was enti-
tled to a portion of the $780,000 as part of his fee. Under the terms
of the agreement, Arnold would pay Loftus and Rosenfeld $19,500 on
or before November 1, 1996 and $6,500 every month from April 10,
1997 until December 10, 2006. Arnold was a director of a corporation
called Resource Management Systems, Inc. ("RMS"), which agreed
to guarantee Arnold’s obligations.
On January 1, 1997, Arnold gave Everett Holtz, the principal
owner of RMS International, Inc. ("RMSI"), a check for $651,000. In
return, Holtz orally agreed to assume Arnold’s liability under the Set-
tlement Agreement to Loftus and Rosenfeld.
On January 7, 1997, RMS entered into an Agreement of Purchase
and Sale ("Purchase Agreement") in which RMS agreed to sell all of
its "business contracts and accounts . . . together with all of its valu-
able assets," to RMSI. RMS acknowledged in the Purchase Agree-
ment that RMSI "has not undertaken to purchase or assume any
obligations except as specifically set forth in this Agreement."
In June 1997, RMS changed its name to TLA Investments, Inc.
("TLA"). Fifteen months later, RMSI merged with another company
to become VistaRMS.
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Pursuant to Holtz’s oral agreement with Arnold, Holtz and RMSI
made payments to Loftus on Arnold’s behalf from April 1997 until
October 2001. On October 31, 2001, Arnold, Holtz, TLA, and
VistaRMS entered into an agreement (the "October Agreement") that
purported to resolve "all disputes that have arisen between . . . the
parties." The October Agreement provided that VistaRMS would pay
Arnold $100,000, and that an existing promissory note payable to
RMS from RMSI in the amount of $115,775 would be paid upon exe-
cution of the agreement. The October Agreement explicitly relieved
Holtz of his obligation to make any future payments to Loftus on
behalf of Arnold.
Shortly after the October Agreement was executed, Arnold
defaulted on his November 10, 2001 payment to Loftus and Rosen-
feld. Arnold ultimately made this payment on November 30, but
defaulted on his December 10, 2001 payment. Loftus and Rosenfeld
have received no payments since November 30, 2001.
On January 28, 2002, Loftus and Rosenfeld sued Arnold for breach
of contract and fraud and VistaRMS for breach of guaranty. Arnold
filed for bankruptcy on June 24, 2002, staying the trial court proceed-
ings with respect to Loftus and Rosenfeld’s claims against Arnold. On
August 9, 2002, Loftus and Rosenfeld moved for summary judgment
against VistaRMS and VistaRMS filed a cross-motion for summary
judgment.
II.
The district court denied Loftus and Rosenfeld’s motion for sum-
mary judgment and granted summary judgment to VistaRMS.1 The
court concluded that VistaRMS was not the successor in interest to
RMS and therefore could not be held liable for RMS’s guaranty on
Arnold’s obligations to Loftus and Rosenfeld. In reaching this conclu-
sion, the court first reasoned that "RMS was not a shell corporation
1Although Loftus and Rosenfeld’s case against Arnold had been stayed
as a result of Arnold’s bankruptcy proceeding, the district court made an
explicit finding that there was no just reason to delay ruling on
VistaRMS’s motion for summary judgment and directed that an order be
entered pursuant to Federal Rule of Civil Procedure 54(b).
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and remained a going-concern after the asset sale [to RMSI] as evi-
denced by their Federal Income Tax filings and the increase in assets
after the sale." The court explained that "RMS acknowledges that
TLA Investments is its true successor in interest in filings with the
Commonwealth of Virginia’s State Corporation Commission, and in
its federal income tax filings." The district court recognized that while
RMS and TLA shared the identical sole officers, directors, and share-
holders, RMS and RMSI did not share any officers, directors, or
shareholders. The court further reasoned that RMSI did not assume
RMS’s guaranty obligation on Arnold’s debt to Loftus and Rosenfeld
by virtue of the Purchase Agreement because that agreement
expressly provides that RMSI has not undertaken to purchase or
assume any obligations. Finally, the court noted that Loftus and
Rosenfeld had not pled fraud against VistaRMS or RMSI.2
III.
We have reviewed the record, briefs, and applicable law and have
considered the oral arguments of the parties. We conclude that the
district court was correct in its holding and affirm on the basis of the
district court’s well-reasoned opinion.
AFFIRMED
2The fraud allegations against VistaRMS relate only to VistaRMS’s
alleged obligation to pay Arnold’s debt to Loftus and Rosenfeld pursuant
to Holtz’s oral agreement with Arnold. Because Loftus and Rosenfeld
did not include breach of this oral agreement in their pleadings against
VistaRMS, see J.A. 99 (Second Amended Complaint), the district court
did not err in rejecting their fraud claim against VistaRMS.
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