Sligo, Inc. v. Cynthia A. Nevois ( 1996 )

No. 95-2955
Sligo, Inc., *
*
Plaintiff/Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri
*
Cynthia R. Nevois and *
Michelle A. Vlahek, Trustees *
of the Raymond H. Cornell *
Revocable Trust, *
*
Defendants/Appellants. *
Submitted: April 12, 1996
Filed: May 21, 1996
Before WOLLMAN and HANSEN, Circuit Judges, and KYLE,* District Judge.
KYLE, District Judge.
Plaintiff/Appellee Sligo, Inc. (“Sligo”), a closely held corporation,
commenced this diversity action against Defendants/Appellants Cynthia
Nevois and Michelle Vlahek (“Trustees”) seeking a declaration that it
properly exercised an option to purchase shares of Sligo stock held by the
Trustees, or alternatively, an order of specific performance requiring the
Trustees to accept Sligo’s tender offer for the shares. The district court
found for Sligo and ordered the Trustees to convey the stock certificates.
The Trustees appeal, claiming the district
*
The HONORABLE RICHARD H. KYLE, United States District Judge
for the District of Minnesota, sitting by designation.
court’s order is contrary to the express language of Sligo’s option and
contesting the proper purchase price for the shares. Sligo subsequently
filed a motion to dismiss the appeal as moot on the grounds the Trustees
complied with the district court Order and conveyed the stock during the
pendency of this appeal. For the reasons set forth below, we deny Sligo’s
motion to dismiss this appeal, and we reverse the decision of the district
court.
I. BACKGROUND
The parties dispute the proper method for calculating the purchase
price of Sligo stock under the terms of Sligo’s option. The Trustees claim
the purchase price should be based on the book value of Sligo shares on
December 31, 1989. Sligo maintains the purchase price should be based on
the book value of the shares on January 31, 1994. The following facts
underlying this conflict are undisputed.
A. Acquisition of Sligo and the Restrictive Stock Transfer
Agreement
In July, 1988, Raymond H. Cornell (“Cornell”), and J. Richard Hauser
(“Hauser”) engineered a leveraged buyout of Sligo, a St. Louis-based
industrial supply distributor. (J.A. at 4-5, 37, 96-97.) Cornell and
Hauser each owned fifty percent of Sligo’s outstanding shares under the
terms of the acquisition, and each served as an officer and director of
Sligo. As a condition of financing this acquisition, Sligo’s lenders
required it to purchase and maintain life insurance policies in the amount
of $1 million on the lives of Cornell and Hauser and required that the life
insurance proceeds be applied toward repayment of the financing loans if
either Hauser or Cornell died before the loans were repaid. Sligo later
purchased additional life insurance policies on the lives of Cornell and
Hauser in the amount of $500,000.00 each. Sligo was the beneficiary of
these life insurance policies.
2
In December, 1988, Hauser and Cornell entered into a Restrictive
Stock Transfer Agreement (“Agreement”) to restrict each owner’s ability to
transfer his shares of Sligo stock. (J.A. at 969.) This Agreement
provided Sligo with an option to purchase an owner’s share upon certain
events and under certain conditions, as more fully set forth below. After
executing the Agreement and pursuant to its terms, Cornell transferred his
shares of Sligo stock to an inter vivos revocable trust (the “Trust”), of
which he was the sole trustee.
Under the Agreement, Sligo’s option was triggered when a specified
“transfer” occurred.2 Its option read in pertinent part:
3.4 Purchase Options Upon Death of a Shareholder or Other
Involuntary Transfers.
. . .
(b) First Option of Corporation. Within thirty (30) days
of the Corporation’s receipt of actual notice of a Transfer .
. . the Corporation may exercise an option hereby granted to
the Corporation to purchase all, but not less than all, of the
Shares so Transferred . . . for the price and upon the other
terms provided in Article V hereof. . . .
(J.A. at 13.) The Agreement treated the death of a shareholder as a
“transfer” which accordingly triggered Sligo’s option to purchase
2
The Agreement defined the term “transfer” as follows:
(e) Transfer. All references herein to “Transfer”
shall mean and shall include any sale, exchange, gift,
assignment, transfer in trust or otherwise, . . . . In
addition, if for any reason any Present Shareholder
ceases to be at least an officer, a director or an
employee of the Corporation, a “Transfer” subject to
the provisions of Section 3.4 hereof shall be deemed to
have occurred with respect to the Shares of such
Present Shareholder on the first Business Day on which
such Present Shareholder is not an officer, director or
employee of the Corporation.
(J.A. at 10.)
3
the deceased shareholder’s shares.
The Agreement also established two mechanisms for setting the value
of the shares in the event of a transfer. The first was a “fail-safe”
provision which read:
5.2 Market Value. Unless otherwise specified in a certificate
of agreed value then in effect pursuant to Section 5.3 hereof,
the “Market Value” of Shares as used herein shall mean:
. . .
(b) Death and Insurance. In the case of a sale and purchase
of Shares by the Corporation under [the terms of its option] as
a result of the death of a Shareholder if the Corporation
receives life insurance proceeds upon the death of such
Shareholder, the Market Value shall mean the book value of said
Shares for the period ending December 31, 1989, and One and
one-half (1 ½) times said book value thereafter. Book value
shall conclusively be determined by the accountant or
accounting firm then servicing the Corporation.
(Id. at 16 (emphasis added).) As an alternative, the Agreement provided
that the shareholders could change the Market Value as determined under
Section 5.2(b) by executing a “Certificate of Agreed Market Value.” The
amount agreed upon in such a certificate superseded the Market Value as set
out in Section 5.2(b). Specifically, Section 5.3 of the Agreement
provided:
5.3 Certificate of Agreed Market Value. The Shareholders and
the Corporation may, at any time and from time to time,
determine “Market Value” as used in Section 5.2 hereof by
executing and filing with the Corporation a written instrument
wherein such determination is set forth, whereupon, for the
period of time stated in such instrument, “Market Value” so
determined shall supersede “Market Value” as determined in
Section 5.2. . . .
(Id. at 16-17.) Cornell and Hauser executed a Certificate of Agreed Market
Value effective for the period August 1, 1988 through December 31, 1988.
They did not execute a subsequent Certificate of Agreed Market Value.
4
B. Sligo’s Attempt to Exercise its Option
Cornell committed suicide on January 31, 1994, and the Trustees
succeeded him as successor co-trustees of the Trust.3 Under the Agreement,
his death constituted a “transfer” which triggered Sligo’s option to
purchase the shares held in the Trust. On February 18, 1994, Sligo
exercised its option and notified the Trustees of its intention to purchase
the shares of Sligo stock held in the Trust.
In order to determine the purchase price of these shares, Sligo
contacted “the accounting firm then servicing the Corporation,” Deloitte
& Touche, and requested that it calculate the book value of Sligo as of the
date of Cornell’s death, January 31, 1994.
That book value was calculated using Sligo’s financial statements for
1993 and information obtained from Sligo regarding income for the period
January 1-31, 1994. Deloitte & Touche determined the book value of all
Sligo shares on January 31, 1994 to be $546,523.00. Cornell’s fifty
percent interest was $273,261.50, and Sligo tendered one and one-half times
this amount, $409,892.25, to the Trustees.4
Although Deloitte & Touche did not calculate the book value of Sligo
shares as of December 31, 1989 -- the date referred to in
3
A third individual, Michael A. Lazaroff, was also
named as a successor and co-trustee of the Trust; he resigned as
a co-trustee on February 16, 1994. (J.A. at 38.)
4
In calculating this value, Deloitte & Touche did not include the $1.5 million
due Sligo from the life insurance policies payable upon Cornell’s death. Sligo did not
receive payment on these policies until approximately March, 1994, at which time
it received $504,247.38 from Kentucky Central Life Insurance Company and
$1,000,638.58 from Allianz Life Insurance Company. (J.A. at 715, 716.)
5
Section 5.2(b)of the Agreement -- the parties do not dispute that the book
value on that date was $879,724.00. The book value of Cornell’s fifty-
percent interest in Sligo at that time was $439,862.00. (J.A. at 724.)
Based on the accountant’s calculation of the January 31, 1994 book
value, Sligo offered the Trustees $409,892.25 for the Trust’s shares of
Sligo stock. The Trustees refused the offer, claiming that Sligo had
improperly calculated the book value and asserting the following: First,
because the shareholders and Sligo never determined “Market Value” under
the procedure established in Section 5.3, the “fail safe” provision in
Section 5.2(b) applies, and the “Market Value” of the shares was one and
one-half times their “book value” as of December 31, 1989, not January 31,
1994. They accordingly assert that Sligo must pay $659,793.00 for the
shares -- the agreed upon December 31, 1989 book value of $439,862.00
multiplied by 1.5.
Second, and alternatively, if the book value is to be calculated as
of the date of Cornell’s death, the $1.5 million due to Sligo from
Cornell’s life insurance policies should have been included in the
determination of book value.
Third, and also based on the calculation of book value as of the date
of Cornell’s death, the accountants “did not make an independent review of
the records of Sligo in order to calculate book value” and instead relied
on unreviewed information Sligo supplied. (Appellant’s Br. at 13.) They
accordingly claim the accountants did not “determine” the book value of the
shares as required by Section 5.2(b) of the Agreement.
C. District Court Proceedings
6
The parties submitted their claims to the district court on a
stipulated record. In its Findings of Fact, Conclusions of Law and Final
Order, the district court concluded Sligo had timely and validly executed
its option. It held that the purchase price of the shares to be purchased
under Section 5.2(b) should be based on their book value as of January 31,
1994, the date of Cornell’s death. The district court further concluded
that Deloitte & Touche properly excluded the $1.5 million in life insurance
proceeds payable to Sligo from the calculation of the shares’ book value
as of January 31, 1994. Finally, the district court concluded that
Deloitte & Touche complied with the Agreement’s term that it “determine”
the shares’ book value, notwithstanding its failure to independently review
financial records, because: (1) the Agreement did not explicitly require
the accountants to conduct an audit and (2) the Trustees failed to show the
book value was determined in an arbitrary or capricious manner. Based on
these determinations, the district court entered judgment in Sligo’s favor
and ordered the Trustees to accept Sligo’s tender of $409,892.25 and convey
the shares.
D. Post-Trial Proceedings
The Trustees filed a notice of appeal to this Court on July 25, 1995.
They simultaneously filed a motion with the district court seeking to stay
execution of its Order pending resolution of their appeal; this motion was
denied. On August 14, 1995, Sligo informed the district court that it
intended to execute on the Order pursuant to Rules 69 and 70 of the Federal
Rules of Civil Procedure. (Wunderlich Aff. ¶ 7.) Sligo also informed
counsel for the Trustees that unless they tendered the shares, Sligo would
deem such inaction as refusing to comply with the terms of the Order.
(Id., Ex. E.)
The Trustees subsequently advised Sligo that they would accept
Sligo’s tender of $409,892.25 for the shares to avoid risk of a
7
contempt citation, but without waiving or prejudicing their appeal rights.
(Id. ¶ 15 & id., Exhs. H, J.) Accordingly, the certificate conveyed to
Sligo contained the following reservation of rights clause:
Without waiving any issue or right on appeal, Trustees of the
Raymond H. Cornell Trust dated 10-3-90 hereby deliver to Sligo,
Inc. the 50 shares of common stock of Sligo, Inc. as directed
in the Final Order of Judge Shaw signed on June 29, 1995 in
Sligo, Inc. v. Cynthia R. Nevois, et al., Cause No., 4:94-cv-
670CAS, in the United States District Court for the Eastern
District of Missouri.
(Id., Ex. K.) Sligo tendered a check for $409,892.25, which the Trustees
deposited in a separate account pending resolution of this appeal. (Nevois
Aff. ¶ 7 & id., Ex. A; Vlahek Aff. ¶ 7 & id., Ex. A.)
Sligo currently claims the Trustees abandoned their appeal because
they “accepted” payment for the shares.
II. DISCUSSION
A. Motion to Dismiss the Appeal
Sligo’s motion to dismiss this appeal is premised on the “acceptance
of benefits” doctrine, which provides that an appeal from a court judgment
may be barred where the appealing party has voluntarily and intentionally
accepted the benefits of that judgment. See Commercial Union Ins. v.
Walbrook Ins., 41 F.3d 764, 769 (1st Cir. 1994); Wynfield Inns v. Edward
LeRoux Group, Inc., 896 F.2d 483, 489 (11th Cir. 1990); International
Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 889 (5th Cir.
1977). The application of this doctrine requires a party to accept the
benefits of a judgment under circumstances which “indicate an intention to
finally settle and compromise a disputed claim.” In re Tudor Assoc., Ltd.
II, 20 F.3d 115, 118 (4th Cir. 1994)
8
(quotation omitted).
In the present case, the circumstances clearly indicate that the
Trustees did not intend to finally settle their dispute with Sligo when
they conveyed the shares. The conveyance was made pursuant to an adverse
court order and under a threat of contempt. Moreover, the Trustees
repeatedly and consistently informed Sligo that they did not intend to
waive their appeal by conveying the shares; the certificate itself
specifically memorializes this position. The Trustees did not seek to take
“advantage” of the court order compelling them to transfer the shares.
This was precisely the result the Trustees litigated to avoid. We
accordingly deny Sligo’s motion to dismiss this appeal.
B. Merits of the Appeal
The Trustees raise three issues on appeal: (1) whether the district
court properly interpreted Section 5.2(b) of the Agreement in determining
the date for establishing the book value of the shares; (2) whether the
insurance proceeds payable to Sligo upon Cornell’s death should have been
included in the “Market Value” of the shares if the date for determining
book value is January 31, 1994; and (3) whether the accountant “determined”
the book value as required under the Agreement. We need only reach the
first issue.
1. Section 5.2(b)
Sligo and its shareholders did not execute a Certificate of Agreed
Market Value pursuant to Section 5.3 for the period following December 31,
1988. As a result, the “Market Value” determination is governed by the
fail-safe clause found in Section 5.2(b), which provides that if a
shareholder dies and Sligo receives life insurance proceeds, and if there
is not a Certificate of Agreed Market Value covering the date of such a
shareholder’s death:
9
the Market Value shall mean the book value of said Shares for the
period ending December 31, 1989, and One and one-half times said book
value thereafter. (Emphasis added.)
The Trustees argue that the words “said book value” refer to the previously
stated book value, and thus expressly require the market value of the
Shares to be determined as of December 31, 1989. Sligo argues that the
phrase “for the period ending December 31, 1989” qualifies the reference
to “Market Value” in this clause, and does not modify the term “book
value.” Sligo maintains the book value to be used in this section is the
book value as of the date of the shareholder’s death, January 31, 1994.
Both parties rely on the alleged plain meaning of Section 5.2(b) to support
their conflicting interpretations.
The district court did not find Section 5.2(b) ambiguous, found the
Trustee’s construction of Section 5.2(b) “without merit,” and concluded as
follows:
December 31, 1989, is clearly not the only date on which book
value is to be calculated. Due to the use of the word
‘thereafter,’ the Court concludes that the Agreement provides
for the purchase price to be calculated on dates after December
31, 1989. Said date is used by the Agreement as a line of
demarcation between when the purchase price is straight book
value and when it is one and one-half times book value.
(J.A. at 971-72.)
10
2. Legal Standard
We review the district court’s interpretation of Missouri law5 de
novo. Bell Lumber & Pole Co. v. United States Fire Ins., 60 F.3d 437, 441
(8th Cir. 1995).
The construction and interpretation of a contract is a matter of law,
and no deference is paid to the trial court’s interpretation. See Central
City Ltd. v. United Postal Sav. Ass’n, 903 S.W.2d 179, 182 (Mo. Ct. App.
1995). Whether the language of a contract is ambiguous is also a question
of law. CIT Group/Sales Fin., Inc. v. Lark, 906 S.W.2d 865, 868 (Mo. Ct.
App. 1995); see also Maurice Sunderland Architecture, Inc. v. Simon, 5 F.3d
334, 337 (8th Cir. 1993) (explaining that “[t]he determination that a
contract is or is not ambiguous is a legal determination, and no deference
is paid to the trial court’s determination on that issue” and “[i]f the
contract is unambiguous, the interpretation is a question of law and
determined de novo”) (applying Minnesota law).6 A contract is not
ambiguous simply because the parties disagree as to its meaning. Young
Dental Mfg. Co. v. Engineered Prod., Inc., 838 S.W.2d 154, 155-56 (Mo. Ct.
App. 1992). Rather, to determine whether a contract is ambiguous, the
court must “consider the whole instrument and give the words their ordinary
and natural meaning.” Angoff v. Mersman, 917 S.W.2d 207, 210 (Mo. Ct. App.
1996) (quotation omitted).
Accordingly, a contract is ambiguous only if “its terms are
5
Section 8.9 of the Agreement provides that “[t]his
agreement shall be subject to and governed by the laws of the
State of Missouri.” (J.A. at 22.)
6
In its Brief, Sligo claims that the district court
relied on extrinsic evidence in “resolving the issues in this
case,” and that as a result, its conclusions must be reviewed
under the clearly erroneous standard. (Appellee’s Br. at 14.)
This is clearly not the law with respect to the district court’s
interpretation of the language of the Agreement.
11
susceptible of more than one meaning so that reasonable persons may fairly
and honestly differ in their construction.” CIT Group Sales, 906 S.W.2d
at 868; see also Central City, 903 S.W.2d at 182 (“[w]here a contract is
not ambiguous, we ascertain the intent of the parties by giving the
language used its natural, ordinary and common sense meaning”). A court
may not use “forced or strained meanings” and “cannot use extrinsic or
parol evidence to create an ambiguity.” Young Dental, 838 S.W.2d at 156.
If no ambiguity exists, the court must construe and enforce the contract
according to its plain meaning. Schuster v. Shelter Mut. Ins., 857 S.W.2d
381, 383 (Mo. Ct. App. 1993); see also Lake Cable, Inc. v. Trittler, 914
S.W.2d 431, 435-36 (Mo. Ct. App. 1996)(“[w]hen a contract uses plain and
unequivocal language, it must be enforced as written”).
3. Application
We agree with the district court that Section 5.2(b) is not
ambiguous, but disagree with its interpretation of the plain language used
in this section.
The crux of the parties’ dispute, and the claimed district court
error, centers upon the meaning of the word “said” as it is used in Section
5.2(b). Missouri courts have explained that the plain meaning of the word
“said” is “before mentioned,” “already spoken of” or “aforesaid” and that
it “refers to an appropriate antecedent.” York Pharmacal Co. v. Henry C.
Beekmann Realty & Inv. Co., 304 S.W.2d 40, 42 (Mo. Ct. App. 1957)
(quotation omitted); accord Smith v. Stowell, 125 N.W.2d 795, 797 (Iowa
1964) (quotation omitted); see also Barilaro v. Consolidated Rail Corp.,
876 F.2d 260, 265 (1st Cir. 1989) (noting that “[i]n usual parlance, when
the word ‘said’ precedes another term it is so used in order to call the
reader’s attention to an antecedent meaning or designation for the term”);
Black’s Law Dictionary 1336 (6th ed. 1990) (defining “said” as “[b]efore
mentioned” and noting that “[t]his
12
word is frequently used in contracts, pleadings, and other legal papers
with the same force as ‘aforesaid’”). We agree with this construction.
Applying this construction to Section 5.2(b), its meaning, we
believe, becomes clear and not reasonably susceptible to conflicting
interpretations. Section 5.2(b) creates two distinct periods for
calculating the purchase price of the shares, depending upon the date this
provision is triggered. The first period is “for the period ending
December 31, 1989.” The second period is for any time “thereafter.” With
respect to calculating the book value before December 31, 1989 -- the first
period -- this section provides that the Market Value shall mean the “book
value of the shares” for the period ending on that date. With respect to
calculating the Market Value anytime after the first period, the Market
Value is one and one-half times “said book value.” In other words, the
Market Value is one and one-half times the previously mentioned or
aforesaid book value. In this section, the previously mentioned book value
is the book value of the shares on December 31, 1989. This language is
plain and unequivocal.
To hold otherwise would be to ignore the use of the word “said” in
this section, or to give it a strained or unnatural meaning. This we may
not do. See Liberty Storage Co. v. Kansas City Terminal Warehouse Co., 340
S.W.2d 189, 192 (Mo. Ct. App. 1960) (explaining “[w]e are not at liberty
to ignore the presence of [a word in a contract], but must attach meaning
and significance to it, because every part of the contract must be given
effect, if fairly and reasonably possible”). If the paries had wanted the
fail-safe clause to use the current book value of the shares, they could
have easily provided language to this effect.7 They did not.
7
For example, rather than providing the purchase price
to be the book value of the shares for the period ending December 31, 1989, “and
One and one-half times said book value thereafter,” the Agreement, if the
parties wanted to use the current book value, could simply have provided the purchase
price to be the book value of the shares for the period ending December 31, 1989, “and
One and one-half times the current book value thereafter,” or “and One and one-half
times their book value thereafter.”
13
They specified the book value on December 31, 1989.
With respect to the district court’s construction, we note its focus
was on the term “thereafter.” The district court found that, because of
this term, the date December 31, 1989 marked a “line of demarcation”
between when the purchase price was straight book value and when it was one
and one-half times book value. It concluded that Section 5.2(b) did not
provide a fixed date to be used to determine the book value, but merely
provided that the book value at the time the purchase price was calculated
would be multiplied by 1.5.
The district court read too much into Section 5.2(b). We agree that
Section 5.2(b)contemplates that the purchase price may be calculated on
different dates, and that December 31, 1989 marks a line of demarcation
between when the purchase price will be straight book value and when it
will be 1.5 times the book value. It does not follow, however, that the
book value used in the calculation must change merely because the
multiplier applied to that book value changed. This additional condition
is found nowhere in the Agreement. To the contrary, as stated above, the
book value specified by the Agreement is the previously mentioned book
value of the shares on December 31, 1989.
Moreover, this construction is consistent with the remaining
provisions of the Agreement. The Agreement establishes a fixed purchase
price for the shares for the period August 1, 1988 to December 31, 1988.
Section 5.2(b) is a fail-safe provision which establishes two alternative
fixed purchase prices for the shares for the period following December 31,
1988. This provided a
14
predictable basis from which the parties could determine whether to
supersede the purchase price pursuant to Section 5.3 with a current
valuation of the shares. If the parties had intended to deviate from the
values established by the fail-safe provision, they could have easily done
so.8
Based on the foregoing, we find the language of Section 5.2(b) is not
ambiguous. The purchase price for the Trust’s shares is one and one-half
times the book value of those shares on December 31, 1989, not their
January 31, 1994 book value -- the date of Cornell’s death. The parties
do not dispute that the book value of Cornell’s shares on December 31,
1989, was $439,862.00. The purchase price of the Trust’s shares is
accordingly one and one-half times that amount, or $659,793.00. As a
result of this conclusion, we need not address the remainder of the
Trustees’ claims.9
III. CONCLUSION
The decision below is reversed and this action is remanded to the
district court with directions to enter judgment in favor of the Trustees
in an amount consistent with this Opinion.
8
The Court also notes that calculating the book value at
the end of an accounting period rather than the purchase date is
reasonable. See 1 O’Neal, Close Corporations § 7.30 at 141 (3d
ed. 1994) (“Ordinarily, in order to avoid closing books, making
an audit and taking inventory, it is preferable to provide that
book value will be calculated as of the end of the last preceding
fiscal or calendar year or some other designated accounting
period”).
9
The Trustees concede that the remaining issues
regarding life insurance proceeds or the accountants’ actions
need be addressed only if it is determined that the book value is
determined as of a date other than December 31, 1989.
15
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
16