rapkin-group-inc-as-a-minority-member-on-behalf-and-for-the-benefit-of ( 2015 )

Mar 31 2015, 10:30 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Peter H. Drumm Kevin M. Quinn
Benadum, Cecil & Drumm Bose McKinney & Evans, LLP
Muncie, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rapkin Group, Inc., as a March 31, 2015
minority member on behalf and Court of Appeals Case No.
for the benefit of The Eye Center 18A02-1408-CT-563
Group, LLC, and Surgicenter Appeal from the Delaware Circuit
Group, LLC, Court
The Honorable Thomas A. Cannon,
Appellant-Plaintiff, Judge
v. Cause No. 18C05-1007-CT-009
Cardinal Ventures, Inc.,
successor in interest to Cardinal
Health Partners, LLC,
Appellee-Defendant.
Mathias, Judge.
[1] Rapkin Group, Inc. (“Rapkin”) appeals the order of the Delaware Circuit Court
granting summary judgment in favor of Cardinal Ventures, Inc. (“Cardinal”), in
a shareholder derivative suit brought by Rapkin on behalf of The Eye Center
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Group, LLC (“ECG”) and Surgicenter Group, LLC (“SCG”) against Cardinal,
in which Cardinal was alleged to have breached a fiduciary duty and committed
constructive fraud upon ECG and SCG. On appeal, Rapkin claims that genuine
issues of material fact precluded the grant of summary judgment.
[2] We reverse and remand.
Facts and Procedural History
[3] The underlying facts of this case were set forth in our earlier memorandum
decision involving the same lawsuit:
ECG/SCG are closely-held, limited liability companies incorporated
in April of 1994.1 Cardinal Health Partners (“Cardinal Health”)[2]
owned 21.93% of ECG and 33.07% of SCG. The balance of the shares
between the two companies were owned by ophthalmologists and
optometrists, including Rapkin, whose principal member is Dr. Jeffrey
Rapkin (“Dr. Rapkin”). Dr. Roch was chief executive officer of
ECG/SCG from its founding in 1994 until July 31, 1999. ECG/SCG
had two long time employees: D. Frank [Winconek] (“[Winconek]”),3
who held the positions of assistant administrator and director of
finance before being promoted to chief executive officer, and Stephanie
Carrick (“Carrick”), who held many positions with ECG/SCG
culminating with her appointment as the company’s chief financial
officer. Dr. Watkins joined ECG/SCG in 2004 and was invited to
become an owner and a member of the board of directors in December
of 2005.
Around July of 2007, some of the ophthalmologists and optometrists
voiced a desire to share in more of the companies’ profits because of
1
Though the companies have separate names and operating agreements, both appear to be managed as one
company.
2
Cardinal Ventures is the successor in interest to Cardinal Health. Throughout this opinion, we will refer to
both as “Cardinal” unless it is necessary to distinguish between the two entities.
3
Our prior opinion misspelled Winconek’s name as “Winecock.”
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the amount of work they were doing. Hoping to improve relations
within the company, Cardinal Health sold some of its shares to the
ophthalmologists and optometrists. Rapkin purchased additional
shares at this time. Dr. Roch did not sell any of his shares to the
ophthalmologists and optometrists nor did he purchase any shares
offered by Cardinal Health.
Blue and Co., LLC (“Blue”) performed yearly audits of ECG/SCG’s
finances. The usual practice was for Blue to present its findings to
[Winconek] and Carrick. [Winconek] and Carrick would then report
those findings to the board of directors. In 2007, Blue submitted the
2006 financial report after April 15th, causing some physicians to file
extensions for their tax returns. Though the reports were submitted
late, [Winconek] and Carrick mentioned no problems when presenting
the report to the board of directors.
ECG/SCG hired a new auditing firm in 2008; Katz, Sapper & Miller
(“KSM”). On March 14, 2008, KSM submitted a partial financial
report for 2007. This was due in part to ECG/SCG converting their
accounting methods. After the board received the completed report,
Dr. Watkins reviewed it with her husband and noticed some
inconsistencies. Because of those inconsistencies, Dr. Watkins sent an
email to [Winconek] and Carrick with questions about the report. She
also requested to see ECG/SCG’s current balance sheets. About the
same time, ECG/SCG began experiencing difficulties paying quarterly
salaries and dividends on time. [Winconek] and Carrick told the board
of directors that the problems were due to accounting errors and
delayed payments from commercial payers. Dr. Watkins did not
receive the requested balance sheets until around November 2008. At
the same time, [Winconek] sent an email to the board of directors
expressing confidence in the finances of the company. However, Dr.
Watkins’s review of the balance sheets she received showed
inconsistencies in the companies’ debt to equity ratio.
In January of 2009, Dr. Watkins and fellow board director Robert
Gildersleeve (“Gildersleeve”) spent several hours reviewing the
balance sheets. Their review led them to talk to KSM directly about
the companies’ finances. On or about January 12, 2009, [Winconek]’s
administrative assistant, Melita Flowers, informed Dr. Watkins that a
staff accountant at ECG/SCG had hired an attorney to discuss
concerns about the financial practices at the companies. On January
29, 2009, Dr. Watkins spoke with Jennifer Abrell (“Abrell”), counsel
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for ECG/SCG. Dr. Watkins wanted to set up a meeting with the
accountants at KSM to discuss ECG/SCG’s financial state. Abrell
informed Dr. Watkins that KSM also desired to meet with company
leadership to discuss its concerns about [Winconek] and Carrick.
On February 3, 2009, Dr. Watkins, Gildersleeve, and Abrell met with
KSM. KSM conveyed its concerns regarding improper accounting
practices to the board of directors. KSM told the directors that it would
need access to all of ECG/SCG’s accounting records to confirm its
suspicions. The next day, the board of directors placed [Winconek] on
personal leave and gave KSM all of the information requested to
perform its investigation. The directors and a representative of KSM
also met with Carrick. At that meeting, Carrick revealed that she and
[Winconek] engaged in fraudulent practices with the companies’
finances. KSM’s investigation revealed that the company had no cash
on hand, little available lines of credit for operations, and flawed
financial reporting. Specifically, KSM found that the financial reports
for ECG/SCG contained intentionally overstated figures for accounts
receivable, inventory, and unapplied cash. ECG and SCG had been
insolvent since December 2006 and July 2008 respectively. Proceeds
from loans rather than profits from company operations were used to
pay salaries and dividends, making shares in the company virtually
worthless. The board of directors terminated [Winconek] on February
18, 2009 and Carrick on March 13, 2009.
Rapkin Grp., Inc. v. Roch, 2014 WL 808866, No. 18A02-1302-CT-193, slip op. at
2-5 (Ind. Ct. App. Feb. 27, 2014), trans. denied (“Rapkin I”).4
[4] Rapkin filed a complaint on April 28, 2010, alleging that Dr. Roch, Dr.
Watkins, Cardinal, Winconek, Carrick, and Blue’s “willful misconduct,
recklessness, breach of fiduciary duty, mismanagement and/or fraud” caused
Rapkin to lose the value of its investment in the LLCs. On the defendants’
motion, the trial court dismissed this claim as a direct action, and Rapkin
4
Winconek ultimately pleaded guilty to five counts of Class D felony theft. See Winconek v. State, No. 18A05-
1204-CR-184 (Ind. Ct. App. Sept. 20, 2012).
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thereafter filed an amended complaint as a shareholder derivative action but
with substantially the same claims.
[5] Several of the defendants filed motions for summary judgment. At issue in our
earlier decision was the motion for summary judgment filed by Drs. Roch and
Watkins on April 7, 2012. The trial court granted this motion for summary
judgment, and Rapkin appealed. In our memorandum decision, we affirmed
the trial court’s judgment, concluding that the designated evidence
demonstrated: (1) that Dr. Roch5 made no statement that was relied upon by
Rapkin; (2) that Dr. Roch did not know about the LLCs’ precarious financial
situation or the fraudulent acts committed by Winconek and Carrick; and (3)
that neither Dr. Roch nor Dr. Watkins breached a fiduciary duty to Rapkin. Id.
at 9-13.
[6] On March 26, 2013, after our memorandum decision in Rapkin I was issued,
Cardinal filed a motion for summary judgment. The trial court granted
Cardinal’s motion on July 31, 2014, and Rapkin now appeals.
Summary Judgment Standard of Review
[7] The standard of review we apply on review of a trial court’s order granting or
denying summary judgment is well settled:
We review summary judgment de novo, applying the same standard as
the trial court: Drawing all reasonable inferences in favor of . . . the
non-moving parties, summary judgment is appropriate if the
5
Rapkin conceded on appeal that Dr. Watkins committed neither actual nor constructive fraud. Id. at 7.
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designated evidentiary matter shows that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment
as a matter of law. A fact is material if its resolution would affect the
outcome of the case, and an issue is genuine if a trier of fact is required
to resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable inferences.
The initial burden is on the summary-judgment movant to
demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue, at which point the burden shifts to the non-
movant to come forward with contrary evidence showing an issue for
the trier of fact. And [a]lthough the non-moving party has the burden
on appeal of persuading us that the grant of summary judgment was
erroneous, we carefully assess the trial court's decision to ensure that
he was not improperly denied his day in court.
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (citations omitted).
Discussion and Decision
[8] On appeal, Rapkin claims genuine issues of material fact with regard to
whether: (A) Cardinal breached a fiduciary duty owed to the LLCs, and (B)
Cardinal committed constructive fraud upon the LLCs. We address each
contention in turn.
A. Breach of Fiduciary Duty
[9] Rapkin first claims a genuine issue of material fact with regard to whether
Cardinal breached a fiduciary duty owed to the LLCs. As we explained in
Rapkin I, a claim for breach of fiduciary duty requires proof of three elements:
(1) the existence of a fiduciary relationship; (2) a breach of that duty owed by
the fiduciary to the beneficiary; and (3) harm to the beneficiary. Farmers
Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 79 (Ind. Ct. App. 2010),
trans. denied. It does not appear Cardinal denies that, as a shareholder and
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director of a closely held corporation, it owed a fiduciary duty to the other
shareholders, including Rapkin. Instead, at issue is whether Cardinal breached
this fiduciary duty.
[10] The standard imposed by a fiduciary duty is the same whether it arises from the
capacity of a director, officer, or shareholder in a closely held corporation. G &
N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 240 (Ind. 2001). The fiduciary has a
duty to deal fairly, honestly, and openly with his corporation and fellow
stockholders and must not be distracted from the performance of his official
duties by personal interests. Id. As explained in Boehm:
Although directors must act with absolute good faith and honesty in
corporate dealings, Indiana Code section 23-1-35-1(e) provides that:
[a] director is not liable for any action taken as a
director, or any failure to take action, unless: (1) the
director has breached or failed to perform the duties of
the director’s office in compliance with this section; and
(2) the breach or failure to perform constitutes willful
misconduct or recklessness.
In other words, Indiana has statutorily implemented a strongly pro-
management version of the business judgment rule. A director is not to
be held liable for informed actions taken in good faith and in the
exercise of honest judgment in the lawful and legitimate furtherance of
corporate purposes. The rule includes a presumption that in making a
business decision, the directors of a corporation acted on an informed
basis, in good faith and in the honest belief that the action taken was in
the best interests of the company. By statute, negligence is insufficient
to overcome the presumption; recklessness or willful misconduct is
required.
Id. at 238 (citations and quotations omitted).
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[11] In the present case, Rapkin claims that he designated evidence sufficient to
establish a genuine issue of material fact with regard to Cardinal’s knowledge of
the precarious financial state of the LLCs. Specifically, Rapkin refers to
Winconek’s affidavit in which he averred that Gildersleve, the director of the
LLCs appointed by Cardinal, was aware that the LLCs had been required to
borrow money to pay dividends to the shareholders from 2006 to 2009. Rapkin
also notes that Cardinal began to divest itself of shares of the LLCs during this
same time, ultimately reducing its holdings from a 45.67% interest to a 28.05%.
From this, Rapkin claims that a reasonable inference can be drawn that
Cardinal began to divest itself of its shares in the LLCs because of Gildersleve’s
knowledge of the use of loans to pay the dividends and that Cardinal chose not
to disclose to the physician shareholders that the LLCs were using loans to pay
the dividends.6
[12] Cardinal, however, claims that Winconek’s affidavit is too vague with regard to
when Gildersleve knew about the loans, who told him, and whether he knew
the extent of the LLCs’ indebtedness. We disagree. Winconek’s affidavit, while
6
Cardinal claims that Rapkin may not now argue any facts inconsistent with those set forth in our decision in
Rapkin I under the law-of-the-case doctrine. Generally speaking, the law-of-the-case doctrine provides that an
appellate court’s determination of a legal issue binds both the trial court and the appellate court in any
subsequent appeal involving the same case and substantially the same facts. Murphy v. Curtis, 930 N.E.2d
1228, 1234 (Ind. Ct. App. 2010). The law-of-the-case doctrine is based upon the sound policy that once an
issue is litigated and decided, that should be the end of the matter. Id. However, unlike the doctrine of res
judicata, the law-of-the-case doctrine is a discretionary tool. Id. Moreover, “[w]hen additional information
distinguishes the case factually from the case decided in the first appeal, the law of the case doctrine does not
apply.” Parker v. State, 697 N.E.2d 1265, 1267 (Ind. Ct. App. 1998). At issue in the first appeal was Rapkin’s
claims against Drs. Roch and Watkins. Subsequent to our decision, Rapkin submitted additional designated
evidence in support of his claims—specifically, the Winconek affidavit. Because of this additional evidence,
we decline to apply the law-of-the-case doctrine. See id. (declining to apply the law-of-the-case doctrine to
issue of propriety of search and seizure where prior case was based on evidence submitted in pre-trial motion
to dismiss, whereas the case at bar was based on additional evidence presented during trial).
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not particularly detailed, claims that Gildersleve knew about the LLCs taking
out loans in order to pay dividends from 2006 to 2009. Dividends are typically
paid out of corporate profits, not loan proceeds. If a corporation is taking out
loans to pay dividends, it is reasonable to assume that the corporation is not
profitable. To the extent that Cardinal claims that Winconek’s affidavit should
not be credited because of Winconek’s criminal activities as CEO of the LLCs,
this is a credibility issue that should be decided at trial, not at summary
judgment.
[13] Cardinal also counters Winconek’s affidavit by referring to Gildersleve’s
affidavit, in which he claims that it was the physician shareholders who
indicated a desire to own more shares of the LLCs so that they could claim a
larger share of the dividends; Gildersleve also averred that Cardinal decided to
sell some of its shares in order to improve its relationship with the physician
shareholders. However, this is in direct conflict with the affidavit of Dr.
Michael Scanemeo (“Scanemeo”), who stated that it was Gildersleve who
encouraged the physician shareholders to purchase additional shares of the
LLCs from Cardinal. If, as Rapkin’s designated evidence indicates, Gildersleve
was encouraging the physicians to purchase more shares at the same time that
he knew that the LLCs were borrowing funds in order to pay dividends, a
reasonable inference could be drawn that Gildersleve was not dealing openly
and honestly with the physician shareholders. To the extent that Gildersleve’s
affidavit conflicts with the affidavits of Scanemeo and Winconek, these are
simply factual issues that are properly resolved at trial, not on summary
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judgment. See Hughley, 15 N.E.3d at 1004-05 (noting that even a “perfunctory
and self-serving” affidavit of dubious credibility can be sufficient to establish a
genuine issue of material fact sufficient for trial).
[14] We therefore agree with Rapkin that a genuine issue of material fact exists
regarding whether Cardinal, through its appointed director Gildersleve, knew of
the precarious financial situation of the LLCs, as evidenced by the need to
borrow money to pay dividends, yet still encouraged its fellow shareholders to
purchase additional shares from Cardinal, thus breaching a fiduciary duty. See
id. at 1004 (noting that “defeating summary judgment requires only a ‘genuine’
issue of material fact—not necessarily a ‘persuasive’ one.”).
B. Constructive Fraud
[15] Rapkin also claims a genuine issue of material fact with regard to whether
Cardinal committed constructive fraud7 vis-à-vis Rapkin and the other
physician shareholders. As we explained in Demming v. Underwood, 943 N.E.2d
878, 892 (Ind. Ct. App. 2011), trans. denied, constructive fraud arises by
operation of law from a course of conduct which, if sanctioned by law, would
secure an unconscionable advantage, irrespective of the existence or evidence of
actual intent to defraud. The five elements of constructive fraud are: (i) a duty
owing by the party to be charged to the complaining party due to their
relationship; (ii) violation of that duty by the making of deceptive material
misrepresentations of past or existing facts or remaining silent when a duty to
7
Rapkin makes no cognizable argument on appeal that the trial court erred in granting summary judgment in
favor of Cardinal with regard to the claim of actual, as opposed to constructive, fraud.
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speak exists; (iii) reliance thereon by the complaining party; (iv) injury to the
complaining party as a proximate result thereof; and (v) the gaining of an
advantage by the party to be charged at the expense of the complaining party.
Id. (citing Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996)). A plaintiff alleging
the existence of constructive fraud has the burden of proving the first and last of
these elements. Id. Once a plaintiff satisfies this burden, the burden shifts to the
defendant to disprove at least one of the remaining three elements by clear and
unequivocal proof. Id.
[16] Here, no dispute appears to exist with regard to the first element, i.e., the
existence of a fiduciary duty between the shareholders of a closely held
corporation. See Boehm, 743 N.E.2d at 240. Rapkin claims that the designated
evidence is also sufficient to create a genuine issue of material fact with regard
to the last element, i.e., whether Cardinal gained an advantage at the expense of
the physician shareholders. Again, we are inclined to agree. Winconek’s and
Scanemeo’s affidavits support a reasonable inference that Gildersleve knew
about the precarious financial condition of the LLCs and, instead of informing
the physician shareholders of this information, encouraged them to purchase
more shares, thus divesting Cardinal of a substantial portion of its interest in the
insolvent LLCs. The existence of a fiduciary duty and the gaining of an
advantage are the only two elements that Rapkin is required to prove. See
Demming, 943 N.E.2d at 892.
[17] Still, Rapkin’s designated evidence would also support an inference with regard
to the remaining elements of constructive fraud. If Gildersleve knew that the
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LLCs were borrowing money to pay dividends, yet still encouraged the
physician shareholders to purchase shares from Cardinal, this could be seen as a
violation of the fiduciary duty by remaining silent when he should have spoken.
Also, Scanemeo’s affidavit supports a reasonable inference that the physician
shareholders purchased shares in reliance on Gildersleve’s encouragement to do
so, which ultimately resulted in Cardinal selling what were essentially worthless
shares for over $1.6 million.
[18] Given this designated evidence, we must conclude a genuine issue of material
fact does exist with regard to whether Cardinal, through Gildersleve,
committed constructive fraud on the physician shareholders. This is not to be
taken as a comment on the strength of Rapkin’s case. As our supreme court
explained in Hughley:
Summary judgment is a desirable tool to allow the trial court to
dispose of cases where only legal issues exist. But it is also a blunt . . .
instrument, by which the non-prevailing party is prevented from
having his day in court[.] We have therefore cautioned that summary
judgment “is not a summary trial; and the Court of Appeals has often
rightly observed that it is not appropriate merely because the non-
movant appears unlikely to prevail at trial. In essence, Indiana
consciously errs on the side of letting marginal cases proceed to trial
on the merits, rather than risk short-circuiting meritorious claims.
Hughley, 15 N.E.3d at 1003-04 (citations and internal quotations omitted). All
we hold is that Rapkin’s designated evidence is sufficient to create genuine
issues of material fact with regard to the issues of whether Cardinal breached a
fiduciary duty and committed constructive fraud.
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Conclusion
[19] The evidence designated by Rapkin is sufficient to create genuine issues of
material fact with regard to whether Cardinal breached a fiduciary duty owed to
its fellow shareholders and with regard to whether Cardinal committed
constructive fraud by remaining silent about the LLCs financial state and
encouraging its fellow shareholders to purchase worthless shares of the LLCs.
Accordingly, we reverse the order granting summary judgment in favor of
Cardinal and remand for proceedings consistent with this opinion.
[20] Reversed and remanded.
Najam, J., and Bradford, J., concur.
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