Playmark, Inc. v. Perret

Playmark, Inc. et al. v. Perret, No. 0091, September Term 2020, filed January 28, 2022.
Opinion by Friedman, J.
HEADNOTES:
CORPORATIONS AND BUSINESS ORGANIZATIONS — SUCCESSOR LIABILITY
A corporation can be held liable for its predecessor’s obligations if two criteria are met.
First, the corporation must be a “successor,” which is defined by statute as (1) a new
corporation formed by consolidation; (2) a corporation or other entity surviving a merger;
(3) a corporation acquiring stock in a share exchange; or (4) a vendee, lessee, or other
transferee in a transfer of assets. Second, the transfer must meet one of the four common
law exceptions to the general rule of non-liability: (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.

CORPORATIONS AND BUSINESS ORGANIZATIONS — TRANSFER OF ASSETS —
ALL OR SUBSTANTIALLY ALL OF A CORPORATION’S ASSETS
Read together, the statutory requirement to qualify as a successor is that “all or substantially
all of the assets” are transferred from the predecessor corporation, not that “all or
substantially all of the assets” are transferred to a particular transferee.

LABOR AND EMPLOYMENT — WAGE PAYMENT AND COLLECTION LAW —
WAGES — COVENANTS NOT TO COMPETE
The mere inclusion of a covenant not to compete does not automatically remove
post-employment payments from the realm of “wages” and the scope of the Wage Act if
those benefits are (1) promised in exchange for employment, and (2) not expressly
conditioned on continuing compliance with the covenant not to compete post-employment.
Circuit Court for Montgomery County
Case No. 464579V
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0091

September Term, 2020
___________________________________

PLAYMARK INC., ET AL.,

v.

JAMES P. PERRET
___________________________________

Berger,
Friedman,
Gould,*

JJ.
___________________________________

Opinion by Friedman, J.
___________________________________

Filed: January 28, 2022

* Judge Steven B. Gould, now a judge of the
Court of Appeals of Maryland, was a member
of the panel assigned to consider this appeal
Pursuant to Maryland Uniform Electronic Legal
Materials Act
prior to his elevation to the Court of Appeals.
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Judge Gould did not participate in the drafting
2022-01-28 12:37-05:00 of this opinion or its adoption.

Suzanne C. Johnson, Clerk
James Perret entered into a contract to perform services for (AAA) Sport Systems,

Inc. (“AAA”). AAA no longer exists, and its corporate successors, Playmark, Inc.

(“Playmark”) and Pro Recreation, LLC (“Pro Rec”), now seek to avoid paying him. We

hold that Playmark and Pro Rec each bear successor liability for the contractual obligations

of AAA and, therefore, affirm the circuit court’s judgment for breach of contract in favor

of Perret as well as the circuit court’s declaration of Perret’s right to receive future

payments from Playmark and Pro Rec. Additionally, however, we hold that Playmark and

Pro Rec are also statutorily obligated to pay Perret under Maryland’s Wage Payment and

Collection Law and, therefore, reverse the circuit court’s pretrial dismissal of that claim.

We remand for appropriate proceedings.

FACTUAL BACKGROUND

I. CORPORATE HISTORY

In the mid-1980s, Tilford Jones created AAA, a Maryland corporation engaged in

the business of selling, constructing, and installing playground equipment, tennis courts,

and tennis backboards. Although Jones was initially the sole owner of AAA, sometime

after marrying Sarah Rodowsky in 1987, Rodowsky became a joint owner of the company.1

In 2005, Jones and Rodowsky split AAA into two new limited liability companies:

Sportco, LLC (“Sportco”) and Sport Systems, LLC (“Sport Systems”), each of which they

1
The record does not disclose whether or how much Rodowsky paid for her interest
in AAA.
also jointly owned.2 Sportco and Sport Systems were formed on the same day, and the

companies shared an address in Ijamsville, Maryland. The assets of AAA were divided

between the two new companies. Sportco received, among other things, AAA’s physical

assets, such as trucks and other equipment. Sport Systems, which was created as the

operating arm of the business, received AAA’s less tangible assets, including the

company’s employees, contracts, clients, and goodwill. Thereafter, the two companies

continued to operate together, with Sportco leasing trucks and other equipment to its sole

customer, Sport Systems. In turn, Sport Systems fulfilled contracts for the manufacture,

installation, and distribution of tennis courts, tennis backboards, and playground

equipment, just as AAA had previously done.

In 2017, Jones and Rodowsky’s personal relationship soured, and they began

divorce proceedings. As part of their divorce settlement, they entered into a Business

Management Agreement (“BMA”) to divide their ownership of Sportco and Sport Systems.

The purpose of the BMA was for “each party [to] have sole control and ownership of a

new entity.” Accordingly, Jones formed Pro Rec to carry on the tennis court and tennis

backboard divisions of the businesses. Rodowsky formed Playmark to carry on the

playground services division of the businesses. Today, Pro Rec, solely owned by Jones,

and Playmark, solely owned by Rodowsky, carry on these businesses. We have created the

2
Although not necessary for this analysis, we understand that Jones and Rodowsky
initially formed Sportco and Mid Atlantic Sports, LLC (“Mid Atlantic”). Thereafter, AAA
merged into Sportco, and in 2010, Mid Atlantic became Sport Systems.

2
following graphical representation of the corporate history, with each transfer numbered in

the order in which we address them in the discussion below:3

Figure 1

II. PERRET’S EMPLOYMENT HISTORY

In the late 1990s, AAA hired James Perret as a salesperson. Perret was rapidly

promoted to general manager in 1998, at which time he signed an Employee

Non-Competition and Confidentiality Agreement (“Non-Compete Agreement”) with

AAA. The Non-Compete Agreement prohibited Perret from engaging in a range of

competitive behaviors while employed by AAA and for three years thereafter. In 2000,

3
We note that we have simplified the transactions here by omitting the role of
Fenway Assets, Inc., a holding company also jointly owned by Jones and Rodowsky, and
Mid Atlantic, as discussed in n.2 above.

3
Perret and AAA entered into an Executive Management Agreement (“EMA”), in which

AAA promised to provide Perret with retirement benefits if he continued in its

employment. As relevant to this appeal, if Perret continued to work in a managerial

capacity from 2000 to 2015, AAA agreed to pay Perret $25,000 per year for the next ten

years, for a total of $250,000. The payments were to be made quarterly, on January 1st,

March 1st, June 1st, and October 1st, of each year.

Perret continued working for AAA and its successors until June of 2018, not only

fulfilling, but surpassing the fifteen-year term set forth in the EMA. In accordance with the

terms, Sport Systems made payments to Perret from 2015 through 2018, for a total of

$100,000.

By the time Perret retired, Jones and Rodowsky were already planning to restructure

their respective interests in Sportco and Sport Systems, but they assured Perret that they

would, nonetheless, continue making payments to him under the terms of the EMA. For

example, just before Perret retired, Rodowsky sent Perret a letter on Sport Systems’

letterhead confirming his resignation and indicating that the terms of the EMA were still

in effect. Also in June of 2018, Sport Systems’ attorney, Michael Rowan, sent a letter to

Perret (“2018 Rowan Letter”) telling Perret how the two new entities, Playmark and Pro

Rec, would handle the remaining payments:

This letter serves to clear up obligations going forward. Ms.
Rodowsky and Mr. Jones are in the process of dividing up what
was known as Sport Systems, LLC. The obligations you owe
to the entity and them [i.e. Rodowsky and Jones] will flow to
their entities and likewise the obligations the entity owes to you
will flow to these new entities.

4
Mr. Jones’ successor entity is named Pro Recreation, LLC, dba
Sport Systems. Ms. Rodowsky will continue to operate Sport
Systems, LLC, which will operate as Eagle Play Structures or
a new name.

* * *

Further, given the split of the Sport Systems, LLC, Ms.
Rodowsky and Mr. Jones have agreed their new entities will
each be 50% responsible for the payments due to you under the
[EMA].

(emphasis added). Moreover, the BMA, by which Jones and Rodowsky divided up Sportco

and Sport Systems amongst themselves, explicitly provided that “Perret shall be paid

$25,000.00 per year for six years, commencing in 2018, and each party’s newly formed

company [Playmark and Pro Rec] shall bear one-half the annual cost ($12,500.00) of the

same.” Despite these assurances that the payments would continue, no further payments

were made.

PROCEDURAL HISTORY

In March of 2019, Perret filed suit in the Circuit Court for Montgomery County

against Playmark and Pro Rec; their predecessor, Sport Systems; and Jones and Rodowsky,

individually. Perret alleged that the missed payments4 (1) were a breach of the EMA, and

(2) violated the Maryland Wage Payment and Collection Law (“Wage Act”).5 MD. CODE,

4
At the time Perret filed suit, only one quarterly payment was overdue. By the time
the case was tried in January of 2020, however, five payments were overdue.
5
In his complaint, Perret also alleged that the missed payments violated the
Maryland Wage and Hour Law, LABOR AND EMPLOYMENT (“LE”) § 3-401 et seq. (a
different act than the Wage Act). The circuit court dismissed this claim pre-trial. Because
Perret did not appeal from that decision, we do not consider that claim here.

5
LABOR AND EMPLOYMENT (“LE”) §3-501 et seq. Perret also sought a declaratory judgment

that he was entitled to receive the quarterly EMA payments from Playmark and Pro Rec

going forward. Before trial, the circuit court dismissed Perret’s claims against Jones and

Rodowsky in their individual capacities. The court also dismissed Perret’s claim under the

Wage Act.

After a two-day bench trial, the circuit court entered judgment for breach of contract

in favor of Perret and against Playmark and Pro Rec for the five quarterly EMA payments

that were then overdue. The circuit court also entered a declaratory judgment that Perret

was entitled to receive the quarterly EMA payments from Playmark and Pro Rec going

forward. Perret moved for reconsideration of the pre-trial dismissal of the Wage Act claim,

but the circuit court denied that motion.

Playmark and Pro Rec noted timely appeals of the breach of contract and declaratory

judgments. Perret noted a timely cross-appeal of the circuit court’s pre-trial dismissal of

his claim under the Wage Act.

DISCUSSION

On appeal, Playmark and Pro Rec argue that they are not obligated to pay Perret

under the EMA for two primary reasons: first, because Playmark and Pro Rec do not meet

the statutory definition of corporate “successors” to AAA; and second, even if they are

AAA’s successors, they did not assume liability for AAA’s obligation to Perret. On

cross-appeal, Perret argues that the failure to make timely EMA payments constitutes not

only a breach of contract but also a violation of the Wage Act, and that the circuit court

consequently erred in dismissing this statutory claim. As we explain below, we conclude

6
that the circuit court did not err in finding that Playmark and Pro Rec had an obligation to

pay Perret under the EMA. We, thus, affirm the circuit court’s breach of contract judgment

against Playmark and Pro Rec for the overdue payments as well as the circuit court’s

declaratory judgment that Perret has a right to receive the remaining future payments from

Playmark and Pro Rec. We also hold, however, that the circuit court erred in dismissing

Perret’s claim under the Wage Act and, thus, reverse and remand for additional

proceedings.

I. CONTRACTUAL OBLIGATION TO PAY UNDER THE EMA

We turn first to the question of whether Playmark and Pro Rec are obligated to make

good on AAA’s promise to pay Perret under the EMA. Although Perret initially entered

into the EMA with AAA, AAA no longer exists. We are, therefore, tasked with determining

whether and how liability for the obligation passed from AAA to the subsequent companies

owned by Jones and Rodowsky: first to Sportco and Sport Systems, and later to Playmark

and Pro Rec.

As a general rule of Maryland corporate law, a corporation that acquires all or part

of the assets of another corporation is not liable for the debts and liabilities of its

predecessor.6 Nissen Corp. v. Miller, 323 Md. 613, 617, 632 (1991). A corporation can,

6
We have previously applied successor liability to LLCs in the same way it is
applied to corporations. Martin v. TWP Enters., Inc., 227 Md. App. 33, 60-63 (2016)
(applying successor liability to a transfer of assets involving an LLC); see also 63 AM. JUR.
2D Products Liability § 120 (2021) (“The traditional rule of corporate successor liability
and the exceptions to the rule are generally applied regardless of whether the predecessor
or successor organization was a corporation or some other form of business organization”).

7
however, be held liable for its predecessor’s obligations if two criteria are met. First, the

corporation must be a “successor,” which is defined by statute as “(1) a new corporation

formed by consolidation; (2) a corporation or other entity surviving a merger; (3) a

corporation acquiring stock in a share exchange; or (4) a vendee, lessee, or other transferee

in a transfer of assets.” MD. CODE, CORPORATIONS & ASSOCIATIONS (“CA”) § 1-101(dd).

As specifically relevant here, to affect a “transfer of assets” means “to sell, lease, exchange,

or otherwise transfer all or substantially all of the assets of a corporation,” CA § 1-101(ee),

wherein assets are “any tangible, intangible, real or personal property or other assets,

including goodwill.” CA § 1-101(d). Second, the transfer must meet one of the four

common law exceptions to the general rule of non-liability: “(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.” Balt. Luggage Co. v.

Holtzman, 80 Md. App. 282, 290 (1989) (citing Golden State Bottling Co. v. Nat’l Labor

Relations Bd., 414 U.S. 168, 182-83 n.5 (1973)). Here, the circuit court found that

successor liability passed from AAA to Sportco and Sport Systems, see supra Figure 1,

transfers #1 and #2, and subsequently to Playmark and Pro Rec. See supra Figure 1,

transfers #3 and #4. Because successor liability is a mixed question of law and fact, with a

“heavier factual component,” we review the circuit court’s findings for clear error only.

Martin v. TWP Enters., Inc., 227 Md. App. 33, 49 (2016). Finding none, we affirm.

8
A. Transfer # 1: From AAA to Sportco

In 2005, Jones and Rodowsky split all of AAA’s assets between the two new LLCs

they created, Sportco and Sport Systems. See supra Figure 1, transfers #1 and #2. Sportco

received, among other things, AAA’s physical assets such as trucks and other equipment.

Id., transfer #1. AAA subsequently merged with and into Sportco. By statute, “[a]

corporation or other entity surviving a merger” is a “successor,” CA § 1-101(dd)(2); and

“[t]he successor [in a merger] is liable for all the debts and obligations of each nonsurviving

[entity].” CA § 3-114(f)(1); see also Martin, 227 Md. App. at 51. Thus, as the “entity

surviving a merger” with AAA, Sportco was liable for the debts and obligations of the

nonsurviving entity, AAA. See also Balt. Luggage Co., 80 Md. App. at 290 (identifying an

exception to the general rule of successor nonliability when the transaction amounts to a

merger). Because no one disputes this, we need not address this transfer in any more detail.7

B. Transfer # 2: From AAA to Sport Systems

At the time Jones and Rodowsky divided up AAA, Sport Systems was established

to operate the business. See supra Figure 1, transfer #2. Although Sportco received AAA’s

physical assets, we discern from the record that Sport Systems received intangible assets

from AAA, including its employees, contracts, clients, and goodwill. At trial, Playmark

and Pro Rec conceded that Sport Systems also succeeded AAA and that it had assumed

AAA’s liabilities:

THE COURT: Is anybody in disagreement that [Sport
Systems] took over from [AAA]?

7
Perret’s complaint also did not name Sportco as a defendant.

9
PRO REC: No, Your Honor.

Thus, Playmark and Pro Rec each waived any argument to the contrary. Nevertheless, for

the following reasons, we conclude that there was sufficient evidence in the record for the

circuit court to find that Sport Systems was both a successor to AAA and assumed liability

for AAA’s obligation to Perret.8

1. Successorship

As stated above, a transferee in a transfer of “all or substantially all of the assets of

a corporation” is a corporate successor. CA § 1-101(dd), (ee). Notably, the “assets” of a

corporation include not only tangible assets such as real or personal property, but also its

intangible assets such as goodwill. CA § 1-101(d). After Jones and Rodowsky divided

Sportco and Sport Systems, the resulting companies continued to operate together. Sportco

leased trucks and other equipment to its only customer, Sport Systems, which entered into

and carried out contracts, just as AAA had. Sport Systems also began employing Perret

and AAA’s other employees. Sport Systems was also, therefore, a transferee in a transfer

of “substantially all of [AAA’s] assets.” As such, Sport Systems, too, is, by statutory

definition, a successor to AAA.

8
Given that the parties conceded this point at trial, the circuit court did not make an
express finding on this point in its oral ruling. In the written order, however, the circuit
court found that the EMA “was subsequently assumed by Sport Systems, LLC.” It is this
finding that we review and affirm here.

10
2. Liability

Sport Systems did not expressly assume liability for AAA’s obligation to Perret, but

there is ample evidence in the record to support a finding that Sport Systems’ conduct

constituted an implied assumption of liability. Balt. Luggage Co., 80 Md. App. at 290. In

determining whether there was an implied assumption of liability, Maryland courts look to

several factors, including (1) whether the successor received or attempted to receive the

direct and substantial benefits of the contract; (2) whether the successor represented to the

party asserting liability that it would assume the obligations of the contract; and (3) the

circumstances under which such conduct occurred. Id. at 294-96; see also Isle of Thye Land

Co. v. Whisman, 262 Md. 682, 706-07 (1971) (first recognizing an implied assumption of

liability). The record is full of evidence from which the circuit court could draw

conclusions on all three factors. First, Sport Systems undoubtedly received the direct and

substantial benefits of the EMA—namely assurance of his long-term employment with the

company and Perret’s agreement not to compete. Perret, in fact, exceeded the terms of the

EMA by continuing to work for Sport Systems for three years longer than the EMA

required. Second, by making payments pursuant to the EMA for the first four years

(2015-2018), Sport Systems represented to Perret that it had assumed the obligation of the

EMA. In addition to the payments themselves, both Jones and Rodowsky assured Perret

by e-mail9 and the 2018 Rowan Letter that the EMA was still in effect, even after AAA

9
See E-mail from Tilford Jones to James Perret (Feb. 19, 2014, 2:35 p.m.) (“This
email confirms that [your] Management Agreement (i.e. us paying you $25K per year for
ten years) is not null and void because you are now in sales”); E-mail from Sarah Rodowsky

11
ceased to exist and Perret was employed by Sport Systems. Third, the circumstances under

which Sport Systems undertook these actions—namely that AAA, the original signatory to

the EMA, no longer existed, and that Sport Systems, not AAA, employed Perret from 2005

onwards—further confirm that Sport Systems, by its conduct, impliedly assumed liability

for AAA’s obligation to Perret.

3. Conclusion

Because Sport Systems was a successor to AAA and because Sport Systems

impliedly assumed liability for AAA’s obligation to Perret, we conclude that the circuit

court did not err in finding that Sport Systems bears successor liability for the obligations

of AAA.

C. Transfer # 3: From Sportco to Playmark and Pro Rec

In 2017, Jones and Rodowsky began planning to split their shared interests in

Sportco and Sport Systems into two new companies, Playmark and Pro Rec. See supra

Figure 1, transfers #3 and #4. Perhaps because Sportco was not a party to the action, or

because Sport Systems had so clearly assumed AAA’s liability to Perret, the circuit court

opted not to trace successorship and liability from Sportco to Playmark and Pro Rec. Id.,

transfer #3. We will not spend time on this point either, except to say that the explanation

for transfer #4 below applies equally to transfer #3.

to James Perret (July 6, 2016, 3:14 p.m.) (confirming that Perret’s EMA was still in place
in 2016).

12
D. Transfer # 4: From Sport Systems to Playmark and Pro Rec

Our next step is to determine whether liability passed from Sport Systems to

Playmark and Pro Rec when Jones and Rodowsky divided up their interests in Sport

Systems. See supra Figure 1, transfer # 4. Because we conclude in the following sections

both that Playmark and Pro Rec are successors to Sport Systems and that the two entities

assumed Sport Systems’ liability to pay Perret, we affirm the circuit court.

1. Successorship

Under CA § 1-101(dd), “successor” is defined, in part, as “[a] vendee, lessee, or

other transferee in a transfer of assets.” “Transfer of assets” is subsequently defined as “to

sell, lease, exchange, or otherwise transfer all or substantially all of the assets of a

corporation.” CA § 1-101(ee). Read together, the statutory requirement to qualify as a

successor is that “all or substantially all of the assets” are transferred from the predecessor

corporation, not that “all or substantially all of the assets” are transferred to a particular

transferee. Here, the parties agree that “the undisputed evidence was that assets of Sport

Systems … were divided between [Pro Rec] and Playmark.” Although there is no specific

evidence of what Sport Systems was left with, the circuit court found that the transferred

assets constituted “the bulk of the business.” In light of testimony, the BMA executed by

Jones and Rodowsky, and the 2018 Rowan Letter, we discern this to mean that “all or

substantially all of the assets” were transferred out of Sport Systems and into Playmark and

13
Pro Rec.10 As “transferee[s] in a transfer of assets,” Playmark and Pro Rec both, therefore,

meet the statutory definition of “successor.”

Despite this, however, Playmark and Pro Rec make two arguments hoping to escape

this conclusion.

First, they argue that they cannot be considered successors to Sport Systems because

Sport Systems “has never been sold and remains a viable Maryland limited liability

company.” The circuit court rejected this argument, finding that “[t]he fact that Sport

Systems LLC is still in existence doesn’t change that the bulk of the business that it

conducted was divided between Playmark and Pro Recreation.” There is no clear error in

this finding. Perhaps Sport Systems still exists, but this doesn’t change the fact that Jones

and Rodowsky stripped it of its assets. What matters in this analysis is whether “all or

substantially all of [Sport Systems’] assets” have been transferred, not whether the

corporation technically still exists. Moreover, even if this did matter, there was substantial

evidence in the record that the entity is functionally defunct. For example, Rodowsky

testified that although Sport Systems was still in existence, it did not operate on a

day-to-day basis anymore and that “[t]here [wouldn’t] be a tax return filed for Sport

Systems for 2019.” By contrast, the only evidence in the record that Sport Systems

continues to function was testimony that Sport Systems was a plaintiff in other litigation

10
We further note that although there is no evidence in the record that Sport Systems
was actually rendered insolvent by the transfer of assets to Playmark and Pro Rec, if, by
stripping Sport Systems of its assets, Jones and Rodowsky left it with insufficient assets to
pay its liability to Perret, the transfer would be a fraudulent conveyance, and subject to
recovery. MD. CODE, COMMERCIAL LAW (“CL”) § 15-204.

14
to collect unpaid fees.11 Given this evidence, it seems clear that Sport Systems was not only

stripped of its assets but was no longer even a functioning corporate entity.

Second, Playmark and Pro Rec argue that because “the assets were in fact divided

equally between [the two new entities], neither could be held to be a transferee of

substantially all of the assets ….” (emphasis in original). In effect, Playmark and Pro Rec

argue that because each company received 50% of Sport Systems’ assets, neither received

51%, which they take to be the minimum necessary to qualify as “substantially all of the

assets.” As we have explained, the requirement here is that “all or substantially all of the

assets” are transferred from the predecessor corporation, not that “all or substantially all of

the assets” are transferred to any given transferee. Nothing in the plain language of the

statute limits to whom and in what amounts the assets are distributed, and Playmark and

Pro Rec cite no authority to support their argument to the contrary.12 We decline to add an

additional requirement that is not in the statute.

Moreover, Playmark and Pro Rec’s theory would undermine an important policy

goal that animates successor liability—to protect the rights of creditors whenever there is

a transfer of assets. Balt. Luggage Co., 80 Md. App. at 297. Notably, the law requires that

we weigh this policy consideration “against the equally important policy respecting

11
As Perret correctly points out, participating in a lawsuit can be an act of winding
up, which in and of itself does not prove continuity of business. See CA § 9A-803(c);
§ 4A-904.
12
Playmark and Pro Rec are right that how much a transferee receives in assets can
be relevant, but this fact is more appropriately considered when determining whether a
given successor assumed liability for a predecessor’s obligations, as we do below, not in
determining whether a transferee meets the statutory definition of a “successor.”

15
separate corporate entities.” 15 Fletcher Cyc. Corp. § 7122 (2021). Although Playmark and

Pro Rec’s proposed theory would surely advance the policy of respecting separate

corporate entities, it would go too far in that direction, ignoring the need to protect

creditors. Were we to adopt Playmark and Pro Rec’s position—that successor liability

could be avoided simply by ensuring that no one corporation received “substantially all of

the assets”—corporate liability could easily be avoided. If the assets of a hypothetical

corporation were divided into thirds among three new corporations, or divided into fourths

among four new corporations, under this theory, there could be no single “successor,” and

thus no entity would be liable for the predecessor’s obligations. This doesn’t make sense,

and we find no error in the circuit court’s rejection of this argument.

Having determined that Playmark and Pro Rec were both transferees in a transfer of

all or substantially all of Sport Systems’ assets and having rejected both of Playmark and

Pro Rec’s theories of escaping this conclusion, we affirm the circuit court’s finding that

Playmark and Pro Rec are successors to Sport Systems.

2. Liability

The next and last question is whether Playmark and Pro Rec, as successors of Sport

Systems, assumed liability for Sport Systems’ obligation to Perret. One way a corporate

successor can become liable for the obligations of its predecessor, regardless of how much

of its predecessor’s assets it received, is if “there is an express[ ] … assumption of liability.”

Balt. Luggage Co., 80 Md. App. at 290. Here, Playmark and Pro Rec received half of Sport

Systems’ assets, but the circuit court found that statements made on behalf of both

Playmark and Pro Rec constituted an express assumption of liability. Playmark and Pro

16
Rec argue that this finding “was contrary to fact and law.” Under the clear error standard,

we “give due regard to the opportunity of the trial court to judge the credibility of the

witnesses,” MD. R. 8-131(c), and we are bound by the circuit court’s findings of fact unless

they are clearly erroneous. Cunningham v. Feinberg, 441 Md. 310, 322 (2015).

Here, the circuit court relied upon language in (1) the BMA between Jones and

Rodowsky expressly agreeing to pay Perret “$25,000 per year for six years, commencing

in 2018, [with] each party’s newly formed company [Playmark and Pro Rec] ... bear[ing]

one-half the annual cost,” and (2) the 2018 Rowan Letter, expressly stating that “Ms.

Rodowsky’s new business [Playmark] will pay to you 50% of the quarterly payment per

the Agreement (or $3,125.00 per quarter) and Mr. Jones’ new business [Pro Rec] will

similarly pay you $3,125.00 per quarter.” Playmark and Pro Rec, however, argue that the

circuit court should not have relied on either of these documents for several reasons:

because the BMA was merely “entered into prospectively;” because Jones and Rodowsky

only considered continuing the payments before they learned of Perret’s alleged violations

of the non-disclosure agreement; and because the 2018 Rowan Letter was only an offer of

settlement, which Perret never accepted. Each of these three arguments, however, is

predicated on a contested credibility determination. That is, for the circuit court to have

found for Playmark and Pro Rec on any of these theories, it would have had to accept Jones

and Rodowsky’s characterizations and not Perret’s. The circuit court obviously made the

17
opposite credibility determination in each circumstance, believing Perret over Jones and

Rodowsky. We will not disturb these credibility determinations.13

Thus, the circuit court did not err in finding that liability passed from Sport Systems

to Playmark and Pro Rec.14

E. Conclusion

Having concluded both that Playmark and Pro Rec were successors to AAA, and

that they assumed liability for the EMA, we affirm the circuit court’s finding that Playmark

13
Playmark and Pro Rec also make a fourth argument that the circuit court
committed reversible error by admitting the 2018 Rowan Letter because, as an offer of
settlement, it was inadmissible under Maryland Rule 5-408(a). MD. R. 5-408(a) (“The
following evidence is not admissible to prove the validity, invalidity, or amount of a civil
claim in dispute: (1) Furnishing or offering or promising to furnish a valuable consideration
for the purpose of compromising or attempting to compromise the claim or any other
claim”). Rule 5-408(a), like its federal counterpart, FRE 408, however, requires that the
evidence must relate to a claim “in dispute” to be excluded. “The purpose of Rule 5-408 is
to encourage the settlement of lawsuits by ensuring that parties need not fear that their
desire to settle pending litigation and their offers to do so will be construed as admissions.”
Bittinger v. CSX Transp., Inc., 176 Md. App. 262, 276-77 (2007). Where the offer is made
before any litigation is pending, or even probable, this purpose is not served, and the
protection does not apply. Burwell v. Easton Mem’l Hosp., 83 Md. App. 684, 692 n.2
(1990). Here, the 2018 Rowan Letter was sent before Perret’s official date of resignation,
more than six months before Playmark and Pro Rec missed a payment to Perret, and ten
months before Perret filed his original complaint. Not only was litigation not pending at
the time, but none was even probable. There simply was no claim in dispute, as required
for Rule 5-408(a) to apply. Therefore, we reject the argument.
14
In addition to expressly assuming liability, we note that there is also ample
evidence in the record to support a finding that Playmark and Pro Rec assumed liability for
the EMA impliedly through their conduct or as “mere continuations” of Sport Systems.
Balt. Luggage Co., 80 Md. App. at 290. Because the circuit court did not decide on these
grounds, we don’t discuss them in any more detail here, but suffice it to say that we could
affirm the circuit court’s judgment on these additional bases. See City of Frederick v.
Pickett, 392 Md. 411, 424 (2006) (holding that an appellate court can affirm “on any ground
adequately shown by the record, whether or not relied upon by the trial court”) (internal
quotation omitted).

18
and Pro Rec are contractually obligated to make both the overdue and future EMA

payments promised to Perret by their predecessor, AAA.15

15
Playmark and Pro Rec advance two additional arguments worth noting here: first,
that Perret himself breached the EMA and that they were, therefore, relieved of their
obligation to pay; and second, that Perret failed to prove his damages in accordance with
the terms and provisions of the EMA. We reject both arguments.
In the first argument, Playmark and Pro Rec claim that Perret violated the EMA and
the incorporated Non-Compete Agreement by referring business to others, sending
confidential documents to his home e-mail address, and establishing a gun range while an
employee of Sport Systems. Playmark and Pro Rec argue that because Perret breached the
contract, he should be prohibited from recovering any damages for their subsequent breach.
The circuit court found that “there was no basis for defendants not to pay what was agreed
to under the contract.” Specifically, the circuit court found that Perret’s conduct did not
violate the EMA so as to nullify Playmark and Pro Rec’s obligations. In so finding, the
circuit court made factual findings and credibility determinations, which we review for
clear error only. MD. R. 8-131(c). Finding no error, clear or otherwise, we affirm.
The second argument stems from the assertion that Perret was not entitled to the
quarterly EMA payments because under the EMA, any successor to AAA would not be
obligated to assume duties owed under the agreement. Instead, “[i]n the event [AAA] shall
merge or consolidate into or with another corporation, or reorganize, or sell substantially
all of its assets to another corporation, firm or person,” Perret would, in lieu of the quarterly
payments, be entitled to “an amount equal to 2% of the net proceeds of any such sale,
merger, consolidation[,] or reorganization of [AAA].” The circuit court found that this
provision did not preclude Perret from receiving the quarterly payments because Playmark
and Pro Rec “expressly agreed to assume the liability of the $25,000 per year payment.”
As we have explained, we agree that Playmark and Pro Rec expressly assumed liability
and thus agree with the circuit court’s conclusion that this provision did not apply here. We
further note that the language of the provision—referring to “the proceeds of any such sale,
merger, consolidation or reorganization” and “payments received by the
Corporation”—also necessarily implies an exchange of money. There is, however, no
evidence in the record that Playmark or Pro Rec paid anything at all for the assets they
received. Moreover, “[c]ontractual language between the parties cannot be used to
eliminate the requirement and public policy that employees have a right to be compensated
for their efforts.” Medex v. McCabe, 372 Md. 28, 39 (2002). Viewed in this light, it would
violate public policy to apply the 2% option to a gratuitous transfer, as to do so would
deprive Perret of the right to be compensated for his efforts.

19
II. STATUTORY CLAIM UNDER THE WAGE ACT

We turn next to Perret’s argument that the circuit court erred in dismissing his claim

under the Wage Act. MD. CODE, LABOR AND EMPLOYMENT (“LE”) §3-501 et seq. The

Wage Act is a remedial statute that “protects employees from wrongful withholding of

wages by employers upon termination.” Stevenson v. Branch Banking & Trust Corp., 159

Md. App. 620, 635 (2004). As such, it is “to be construed liberally in favor of the

employee.” Peters v. Early Healthcare Giver, Inc., 439 Md. 646, 661 (2014). The Wage

Act requires that “each employer shall pay an employee … all wages due for work that the

employee performed before the termination of employment, on or before the day on which

the employee would have been paid the wages if the employment had not been terminated.”

LE § 3-505(a) (emphasis added). The relevant question here is whether the payments

promised to Perret under the EMA constitute “wages,” subject to the Wage Act. If they do,

then Perret may be able to recover not only the missed payments, but up to three times that

amount and reasonable attorney’s fees and costs. LE § 3-507.2(b). The circuit court found

that the payments were not wages and dismissed Perret’s claim pre-trial. Because this

determination requires both interpretation of a statute (the Wage Act) and a contract (the

EMA), it is a question of law, which we review without deference to the circuit court. Blood

v. Columbus US, Inc., 237 Md. App. 179, 186-87 (2018). We now reverse.

A. Definition of a “Wage”

The term “wage” is broadly defined in the Wage Act as “all compensation that is

due to an employee for employment [including] (i) a bonus; (ii) a commission; (iii) a fringe

benefit; (iv) overtime wages; or (v) any other remuneration promised for service.” LE

20
§ 3-501(c). Two leading cases from the Court of Appeals establish the general framework

that to constitute a “wage” recoverable under the Wage Act, payments must both be

promised in exchange for employment and fully earned before employment ends.

Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 306 (2001) (explaining that

the statute should be read to count a payment as a wage “only when it has been promised

as part of the compensation for employment”); Medex, 372 Md. at 41 (“[A]n employee’s

right to compensation vests when the employee does everything required to earn the

wages”). Three cases from this Court provide more specific guidance when covenants not

to compete are involved: Stevenson, 159 Md. App. 620; Aronson & Co. v. Fetridge, 181

Md. App. 650 (2008); and Blood, 237 Md. App. 179.

In the first of these cases, Stevenson v. Branch Banking & Trust, Corp., Stevenson

alleged that her employer violated the Wage Act by failing to pay termination

compensation as promised in her employment contract. Stevenson, 159 Md. App. at 624.

We held that:

[T]he scope of [the Wage Act] extends to the type of severance
pay that represents deferred compensation for work performed
during the employment. Thus, a severance benefit that is based
on the length [or] nature of the employee’s service, and
promised upon termination, may be recoverable under the
[Wage Act].

Id. at 644. We concluded, however, that the payments promised to Stevenson were not

wages and were, therefore, not recoverable under the Wage Act. Id. at 645-46. Although

the payments were promised as compensation for Stevenson’s services as an employee, the

employment agreement explicitly conditioned payment on compliance with a

21
post-employment covenant not to compete in an “if, then” fashion. Id. at 645 (“If Employee

breaches the non-compete provisions in section 4(a) of this Agreement during the period

that she is receiving Termination Compensation, Employee will not be entitled to receive

any further Termination Compensation”) (cleaned up). Thus, Stevenson could not possibly

have fully earned the payments before her employment ended. Id. at 646; see also

Whiting-Turner, 366 Md. at 305-06 (concluding that although the employee had been

promised a bonus as compensation for service, he had not earned the bonus before his

employment ended). As a result, in Stevenson we held that the payments were not wages

and were not recoverable under the Wage Act. 159 Md. App. at 646.

In the second case, Aronson & Co. v. Fetridge, Fetridge’s estate alleged that his

former employer violated the Wage Act by failing to pay termination compensation as

promised in Fetridge’s employment contract. 181 Md. App. at 656. Although Fetridge’s

contract included a post-employment covenant not to compete, as Stevenson’s had, the

language of Fetridge’s contract provided that Fetridge would still be entitled to the

payments, even if he violated the covenant not to compete. Instead, Fetridge’s employer

retained a right to offset the payments by a pre-determined amount in case of violation. Id.

at 667-68. Thus, we interpreted Fetridge’s contract as establishing two independent

obligations: one for Aronson to pay Fetridge his termination compensation if Fetridge was

involuntarily terminated; and one for Fetridge to pay Aronson pre-determined damages if

Fetridge violated the covenant not to compete. Id. Concluding that Fetridge’s receipt of the

termination compensation was not conditioned on his post-employment compliance with

22
the covenant in an “if, then” fashion, we held that the payments were fully earned before

termination and, thus, constituted wages recoverable under the Wage Act. Id. at 668.

In the third case, Blood v. Columbus US, Inc., Blood alleged that his former

employer violated the Wage Act when the employer terminated his employment and failed

to make payments as agreed in his managerial contract. 237 Md. App. at 184. In Blood, as

in Stevenson, the language of the employment contract expressly stated that payment was

exclusively “in exchange for” Blood’s compliance with a post-employment covenant not

to compete. Id. at 182-83 (“In exchange for clause 10.1 [the covenant not to compete], the

Company shall pay remunerations”). As in Aronson, however, Blood’s contract also

included a liquidated damages provision, requiring Blood to pay a preset amount for each

violation of the covenant not to compete. Id. at 183. Distinguishing the case from Aronson,

we explained that if compensation is made conditional on a post-employment obligation,

it isn’t considered “wages” for purposes of the Wage Act, regardless of whether another

provision, such as a liquidated damages provision, provides for some form of contractual

payment. Id. at 192-93. Consequently, we concluded that the payments were not promised

to Blood in exchange for employment and, thus, were not wages recoverable under the

Wage Act. Id. at 193.

Thus, these three cases stand together for the proposition that the mere inclusion of

a covenant not to compete does not automatically remove post-employment payments from

the realm of “wages” and the scope of the Wage Act if those benefits are (1) promised in

exchange for employment, and (2) not expressly conditioned on continuing compliance

with the covenant not to compete post-employment.

23
B. Application to the EMA

We turn, therefore, to the EMA, to determine whether the payments promised to

Perret therein satisfy the two-part requirement to constitute “wages” under the Wage Act:

(1) whether they were promised in exchange for Perret’s employment with AAA and its

successors, and (2) whether Perret’s right to the payments was expressly conditioned on

his compliance with the Non-Compete Agreement after his employment ended. Maryland

courts apply the objective theory of contracts, under which we must consider the plain

language of the EMA in the context of “not only the text of the entire contract but also the

contract’s character, purpose, and the facts and circumstances of the parties at the time of

execution.” Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 394 (2019) (internal

citations omitted).

Signed in 2000 by Perret and Jones (as President of AAA), the EMA includes both

language promising payment in exchange for long-term employment and language limiting

Perret’s ability to compete with his employer. On the one hand, the EMA states explicitly

that its purpose is to secure Perret’s ongoing employment:

B. The experience of the Employee and his knowledge of
the affairs of the Corporation are so valuable that
assurance of his continued services is in the best
interests of the Corporation. Accordingly, the
Corporation desires to provide a financial incentive to
reasonably assure his long term employment.

C. The corporation desires that the Employee’s services be
retained as herein provided.

D. The Employee is willing to continue in the employment
of the Corporation provided the Corporation agrees to
pay him or his beneficiaries certain benefits in

24
accordance with the terms and conditions hereinafter set
forth.

Specifically, the EMA provides that if Perret continued to work in a managerial capacity

from 2000 to 2015, then AAA would pay Perret $250,000 in retirement benefits over the

course of 10 years:

If the Employee shall continue in a managerial position of the
Corporation from January 1, 2000 through at least January 1,
2015, the Corporation agrees to pay to the Employee the sum
of $25,000.00 annually beginning on January 1, 2015 and
continuing for a period of ten consecutive years. For a total
payment of $250,000.00.

The EMA also has language limiting Perret’s ability to compete with his employer during

employment and incorporates by reference the Non-Compete Agreement signed in 1998:

Employee’s on-going employment shall be in accordance with
Employee Non-Compete and Confidentiality Agreement
executed February 4, 1998 and attached hereto as Exhibit “B.”
Any violation of this Agreement during or within three years
after termination of employment shall nullify the Corporation’s
obligations set forth herein.16

Relying heavily on our decision in Blood, the circuit court determined that this

language expressly conditioned Perret’s right to the EMA payments on his compliance with

16
The EMA also includes a provision requiring Perret to make himself available to
render consulting services as needed after the conclusion of his employment:
It is mutually agreed that following retirement from active
daily employment, the Employee shall, at the request of the
Corporation, be available at reasonable times and places as
may be mutually agreed upon, to render services to the senior
executives of the Corporation at its offices in an advisory or
consulting capacity.
* * *

25
the covenant not to compete post-employment. Consequently, the circuit court concluded

that, as in Stevenson and Blood, Perret could not have fully earned the payments before his

employment ended, and, therefore, that the payments were not “wages” subject to the Wage

Act. We interpret the language of the EMA differently. We hold that the EMA payments

constitute “wages,” as they were (1) promised in exchange for employment, and (2) fully

earned before Perret’s employment ended.

First, the EMA expressly states that its purpose is “to provide a financial incentive

to reasonably assure [Perret’s] long term employment” with AAA, as was the case in

Aronson, 181 Md. App. at 671-72. Unlike the agreements in Stevenson and Blood, the EMA

explicitly ties the $250,000 to Perret’s continued employment in a managerial capacity for

fifteen years in an “if, then” fashion. Thus, like Aronson and unlike Stevenson and Blood,

Perret’s payments were promised as part of his compensation for employment.

Second, Perret earned the right to the EMA payments when he fulfilled the required

fifteen-year term. Unlike in Stevenson, 159 Md. App. at 645, this right was not expressly

conditioned on Perret’s compliance with the Non-Compete Agreement. As in Aronson and

Blood, Perret’s Non-Compete Agreement has its own liquidated damages for various

breaches. For example, the Non-Compete Agreement states:

In consideration for such consulting services, the Corporation
shall pay the Employee reasonable compensation for the
services rendered.
Playmark and Pro Rec argue that this provision conditions the payments on another
post-employment obligation. We hold, however, that because the EMA specifies that
separate consideration will be paid to Perret for the actual work of consulting, the payments
at issue in this litigation were not tied to the post-employment consulting obligation.

26
The employee hereby agrees and covenants, that if he
commits any act in violation of Sections 2 or 3 with respect to
any tennis court(s), game court(s), game areas[,] or fields, he
shall pay SSI, in cash, a sum equivalent to 25% of the sales
price of each and every such job resulting from or relating to
such act…

Without explicit language tying payments to the Non-Compete Agreement, the EMA is

much more like the agreement in Aronson than like the one in Blood. As in Aronson, the

EMA lays out two, separate and independent obligations: one for AAA to pay Perret the

$250,000 if he remained employed in a managerial capacity for fifteen years; and another

for Perret to comply with the terms of the Non-Compete Agreement or risk paying the

liquidated damages described therein.

Playmark and Pro Rec’s argument that the payments were conditioned on

post-employment compliance with the Non-Compete Agreement is based on an incorrect

reading of the term, “this Agreement,” in the relevant provision of the EMA: “Any

violation of this Agreement during or within three years after termination of employment

shall nullify the Corporation’s obligations set forth herein.” (emphasis added). Playmark

and Pro Rec interpret “this Agreement” to refer to the Non-Compete Agreement,

consequently creating an “if, then” condition, like in Stevenson, 159 Md. App. at 645. The

correct reading of the EMA, however, is that the term, “this Agreement,” as used here,

refers to the EMA itself, not the Non-Compete Agreement. As evidence of this, we note

that the term, “this Agreement,” is used a total of twenty times throughout the EMA, both

before and after the incorporation of the Non-Compete Agreement. Although it is not

expressly defined anywhere, each of the other nineteen times the term is used, it clearly

27
refers only to the EMA. We see no reason to presume that the same term refers to a different

agreement entirely in the clause at issue here. When read this way, it is clear that the

penalties for violating the Non-Compete Agreement are the specific liquidated damages

laid out in the Non-Compete Agreement itself, not nullification of AAA’s obligation to pay

Perret. Thus, Perret’s right to the EMA payments was not conditioned on a post-termination

obligation not to compete, and he did everything necessary to earn the payments when he

fulfilled the required fifteen-year term.

Having determined both that the EMA payments were promised as part of Perret’s

compensation for employment and that Perret did everything necessary to earn the

payments before his employment ended, we hold that the EMA payments are wages,

subject to recovery under the Wage Act, and that the circuit court erred as a matter of law

in dismissing the claim.

C. Further Proceedings

We must next address how much, if anything, Perret can recover in addition to the

$250,000 already accounted for under the breach of contract judgment. Section 3-507(b)

of the Wage Act permits an employee to recover up to three times the wage owed (which

we refer to here as “enhanced damages”) and reasonable attorney’s fees and other costs if

the employer’s failure to pay the money owed was “not as a result of a bona fide dispute.”

LE § 3-507(b). Because the circuit court dismissed this claim, it did not reach the relevant

questions of fact: (1) whether Playmark and Pro Rec’s failure to make payments was the

“result of a bona fide dispute;” (2) if not, how much (if anything) Perret is entitled to

recover in enhanced damages, attorney’s fees, and costs; and (3) whether Jones and

28
Rodowsky should also be held personally liable for that amount. These are questions, in

the first instance, for a trier of fact,17 not an appellate court. Admiral Mortg., Inc. v. Cooper,

357 Md. 533, 544 (2000).

For these reasons, the judgment of the circuit court dismissing Perret’s claim under

the Wage Act is reversed. The case is remanded to the circuit court to enter judgment in

favor of Perret, and to conduct any further proceedings necessary to determine appropriate

damages, costs, and fees.18

CONCLUSION

We hold that Playmark and Pro Rec, as successors to AAA, are contractually

obligated to pay Perret under the EMA. We, therefore, affirm the circuit court’s judgment

17
Ordinarily, determinations about whether withholding an employee’s wages was
the result of a bona fide dispute and whether to award enhanced damages are questions for
the jury, while determinations about attorney’s fees and costs are questions for the judge.
Admiral Mortg., Inc. v. Cooper, 357 Md. 533, 544, 553 (2000). Here, however, the EMA,
by its terms, waives the parties’ right to a jury trial, and thus all questions must be resolved
by the judge, as the sole trier of fact.
18
In so doing, we caution that any additional recovery may well be limited. First, to
recover any enhanced damages, costs, or fees, Perret must prove that Playmark and Pro
Rec did not withhold the payments as a result of a bona fide dispute—in other words that
there was no “legitimate dispute over the validity of [his] claim”—which may be difficult
in light of this litigation. Peters, 439 Md. at 657 (quoting Admiral Mortg., 357 Md. at 543).
Second, even if Perret can prove that there was no bona fide dispute, he has already
recovered the wages themselves under his breach of contract claim and cannot recover the
same damages twice. Programmers’ Consortium, Inc. v. Clark, 180 Md. App. 506, 516
(2008); see also Peters, 439 Md. at 667 (explaining that the total amount recoverable under
the statute is three times the unpaid wage, not three times the unpaid wage in addition to
the unpaid wages). Recovery of enhanced damages, attorney’s fees, and costs is not
guaranteed but rather left to the discretion of the trier of fact. Admiral Mortg., 357 Md. at
551; but see Friolo v. Frankel, 373 Md. 501, 518 (2003) (encouraging courts to exercise
their discretion liberally in favor of awarding reasonable attorney’s fees). Moreover, to
hold Jones and Rodowsky liable in their personal capacities, Perret must also show that,

29
for breach of contract against Playmark and Pro Rec for the overdue payments as well as

the circuit court’s declaration that Playmark and Pro Rec are responsible for the remaining

future payments to Perret. We also hold, however, that Playmark and Pro Rec’s failure to

pay Perret was a violation of their statutory obligation to him under the Wage Act. In

addition to the missed payments themselves, Perret may, therefore, also be entitled to

recover enhanced damages, attorney’s fees, and costs. We consequently reverse the circuit

court’s judgment regarding the Wage Act and remand for further proceedings.19

JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLANTS, PLAYMARK AND PRO
RECREATION.

under the totality of the circumstances, they maintained sufficient control over him to
constitute “employers” under the statute. Pinnacle Grp., LLC v. Kelly, 235 Md. App. 436,
472-73 (2018) (explaining the four-factor, economic reality test).
19
Playmark and Pro Rec assert one final argument regarding their shared liability:
that the circuit court erred in imposing joint and several liability on them because the
documents on which the circuit court relied to find that Playmark and Pro Rec assumed
liability for the payments—the BMA and the 2018 Rowan Letter—expressly state that
Playmark and Pro Rec would each be responsible for half of the annual payments. This
misunderstands the role of these documents in the analysis. They aren’t functioning as new
contracts but rather provide evidence that Playmark and Pro Rec assumed AAA’s liability
to Perret. The EMA remains the sole contract and, as we held above, Playmark and Pro
Rec both bear successor liability to Perret on the EMA. Of course, if Perret enforces the
judgment against only one of those companies, that company may bring a contribution
claim against the other company and rely on these documents.

30