Vernon v. Cuomo, July 9, 2008 (Tennille)(unpublished)

The Court allowed a motion to bifurcate in this shareholder dispute.  Shortly before trial, the Court agreed to try first Plaintiffs' claims for reasonable expectations, mismanagement, and breach of fiduciary duty; and after determination of those issues to try, if necessary, the issues of valuation and dissolution.  The Order allowing bifurcation was entered with the consent of the parties.

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Motion to Bifurcate

In The Matter of The Ruth Cook Blue Living Trust, May 20, 2008 (Jolly)(unpublished)

The Court ruled, on summary judgment, that the word "value" in a Trust Agreement meant "'fair market value' of the shares of the railroad company which was the subject of the case as value would be viewed by the Trust, as prospective seller, and the Blue family [those entitled to buy them per the Trust Agreement], as prospective purchasers."  The term "value" did not mean the fair market value of the shares if they had been offered to the general public.

The Court rejected, at least at the summary judgment stage, the value for the shares established in a report prepared by the railroad's accounting firm.  The Court noted that this report had been prepared "for the limited purpose of determining the fair market value between a willing buyer and a willing seller in the general marketplace of a minority interest of a share of the Railroad's common stock for gift and estate tax purposes."   The Court found that there were material issues of fact whether this valuation, which incorporated a significant discount for the lack of marketability of the shares, reflected the intent of the settlor of the trust.

The Court rejected an argument by the Plaintiffs that they were entitled to challenge the methodology of the accounting firm.   It held "the court notes that since [the testator] is deemed to have embraced the expertise of [the accounting firm] by virtue of paragraph 8.01 of the Trust Agreement, it is likely that criticism of [the accounting firm's] valuation methodology would be of limited probative value, if it would be admissible at all."

The Court also allowed an amendment to the Complaint even though the proposed new allegations were "substantively different" from those in the original Complaint.  It held that the duty of construing the relevant provisions of the Trust Agreement was its domain, and stated "variations existing between the Petition and the Amended Petition regarding the Trustee's contended construction of the Trust Agreement are not of material consequence in this setting."

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Defendants' Brief In Support Of Their Motion For Summary Judgment And In Opposition To Motion To Amend

Plaintiffs' Brief In Opposition To Defendants' Motion For Summary Judgment

Plaintiffs' Reply Brief In Support Of Their Motion To Amend

Classic Coffee Concepts, Inc. v. Anderson, 2008 NCBC 1 (N.C. Super. Ct. Jan. 31, 2008)(Diaz)

Defendant, a terminated employee, owned one third of the outstanding stock of Classic Coffee Concepts. The issue was the price to be paid for the stock, which the corporation was obligated to repurchase under a Stockholders Agreement. The Agreement said that the price would be determined by looking to the fair market value of the stock as determined by an independent appraisal of the Employee Stock Ownership Plan. But no ESOP had ever been established.

A variety of conflicting appraisals were presented to the Court at trial.  Defendant would have been entitled to a multi-million recovery under two of them. The first, prepared pre-litigation for the accounting purpose of conducting a goodwill impairment, set the company's "fair value" at $12,500,000. A "fair value" appraisal ignores discounts in value that are typical for closely held corporations, like those for lack of marketability and lack of control. Defendant's shares would have been worth $4 million if this appraisal applied. A second appraisal factored in the discounts applicable to closely held corporations, and concluded that the corporation had a value of $8,390,000. If this appraisal had controlled, defendant's shares would have been worth more than $2.7 million.

For purposes of the litigation, the company obtained a hypothetical appraisal which valued the company as if the ESOP required by the Agreement was in place. The value placed on defendant’s shares under this approach was markedly lower, only $120,000. Yet another appraisal assuming the existence of the ESOP valued defendant's shares at $192,000, and the last of the many appraisals before the Court valued them at zero.

After analyzing this thicket of conflicting appraisals, the Court held that it would apply the first hypothetical ESOP appraisal, because that was "the only evidence of value that attempts to honor the parties' agreement." The Court ruled that the establishment of the ESOP was not a condition precedent excusing performance by both parties, because conditions precedent are not favored in the law and also because neither party had argued the point at trial.

The Court also found that the company had materially breached the Stockholders Agreement by failing to redeem defendant's shares within sixty days of the date of the termination of his employment, and that the pledging of defendant's stock as collateral did not excuse it from having to do so. In a small victory for the defendant, the Court held that the company could not invoke its right to pay for defendant's stock over a sixty month period, but that it was required to make an immediate, lump sum payment.

Full Opinion

Plaintiff's Trial Brief

Defendant's Trial Brief

 

Media Network, Inc. v. Mullen Advertising, Inc., 2007 NCBC 1 (N.C. Super. Ct. Jan. 19, 2007)(Diaz)

The issue here was whether the parties had reached an agreement by which defendant was to pay fees to plaintiff for managing an advertising program. Plaintiff alleged that the agreement was "non-cancellable" for a term of one year. The Court found that the correspondence relied upon by plaintiff did not establish a binding contract. Although the parties had agreed on the price to be paid for each advertisement, they had not agreed on the number of advertisements that would be posted by the plaintiff, or when or where they would be posted. Material terms had been left open for negotiation, hence there was no valid contract.

The Court also rejected the argument that the contract had been ratified It held that ratification occurs when the person making the contract purported to act for its principal. Plaintiff's argument, however, was that the principal had ratified the contract, which the Court found to be the "legal equivalent of attempting to force a square peg into a round hole." The Court further ruled that an oral promise of a guarantee term to the contract was barred by a merger clause, pursuant to the parol evidence rule.

The Court found, however, that there were material issues of fact as to plaintiff's unfair and deceptive trade practice claims. It ruled that the oral statements by the defendant as to the term of the contract, which it had no authority to make, might have been fraudulent and were certainly unethical, and the defendant had failed to do anything to correct them. The Court also found a factual question on whether the defendant which spoke the misleading statements was acting with the authority of another defendant. Whether the speaking defendant had the apparent authority to act on behalf of the other defendant was a question of fact.

Finally, the Court granted summary judgment on plaintiff's claim for damages based on diminution in business value. Plaintiff's remaining claim was essentially for fraud in the inducement, and the measure of damages for that claim is the difference between plaintiff's expected profit if it had been permitted to perform for the full year, and the amount that it was actually paid before being terminated." Furthermore, the only reason for plaintiff to be in business was to perform under the contract at issue, making a diminuntion in value theory inapplicable and one of "unbounded speculation." The business was a new one, and had value only to the extent that the defendant chose to renew the contract. Although new businesses can recover for loss of profits, they must show them with reasonable certainty like an established business.

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Garlock v. Hilliard, 2001 NCBC 10 (N.C. Super. Ct. Nov. 14, 2001)(Tennille)

The plaintiffs in this case sought the dissolution of a closely held corporation pursuant to N.C.G.S. §55-14-30(2)(ii) on the ground that the business of the corporation was being conducted to the unfair advantage of the majority shareholder. The Court found that dissolution was appropriate because the reasonable expectations of the majority shareholders were not being met.

Since the dissolution statute gives the corporation the opportunity to avoid dissolution by paying the oppressed shareholders the "fair value" of their shares, the Court moved on to a discussion of that concept. As it had in the Royals case, the Court considered market value, equitable considerations, practical considerations and changes in condition of the company from the market valuation date. It determined that it would be inappropriate to apply discounts for lack of control and lack of marketability. The Court also ruled that the purchase price could be paid over a period of 36 months.

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Royals v. Piedmont Electric Repair Co., 1999 NCBC 1 (N.C. Super. Ct. Mar. 9, 1999)(Tennille), aff'd, 137 N.C.App. 700, 529 S.E.2d 515, cert. denied, 352 N.C. 357, 544 S.E.2d 548 (2000)

Plaintiffs had established their right to involuntary dissolution of the closely held corporation in which they were shareholders because their reasonable expectations had not been met, and the business of the corporation was being conducted to the unfair advantage of the minority.

The corporation was entitled to avoid dissolution by paying the oppressed shareholder the "fair value" of his shares. Fair market value is not the same as "fair value," but is a determinant in that consideration.

Discounts for lack of control and lack of marketability do not apply when minority shareholders are compelled to sell their shares.

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Beam v. Worldway Corp., 1997 NCBC 3 (N.C. Super. Ct. Oct. 23, 1997)(Tennille)

A shareholder exercising dissent and appraisal rights in a transaction involving a public corporation is not entitled to a trial by jury. A shareholder in a closely held corporation, however, is entitled to a trial by jury.

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