Miles v. Bank of Heflin , 295 Ala. 286 ( 1975 )

JONES, Justice.

This is an appeal from a summary judgment denying M. M. Miles and other stockholders of the Bank of Heflin the 10% penalty provided under Tit. 10, § 21(46) for the refusal of the Bank of Heflin to allow them to inspect its corporate records. We reverse and remand.

The stockholders requested permission for their accountants to examine the books and records of the Bank of Heflin pursuant to Tit. 10, § 21(46). The Bank told them that certain limitations would be placed upon their access to the Bank’s records. Among the things the Bank wanted to prevent the stockholders from inspecting were financial statements of borrowers, reports of examinations of the Bank by federal and state regulatory authorities, and information which would disclose the salaries paid to individual employees of the Bank. To limit the scope of inspection, the Bank filed a declaratory judgment action. The stockholders filed a counterclaim for the statutory 10% penalty. Both parties filed motions for summary judgment upon affidavits and depositions.

The trial Court agreed with the Bank that the inspection should be limited and appointed a Master to determine the scope of permissible inspection. The Court then granted the Bank’s motion for summary judgment against the stockholders’ counterclaim for the penalty. The stockholders brought mandamus to enforce their right to full inspection of the records and filed an appeal to review the summary judgment denying the penalty. A writ of mandamus requiring the trial Court to order the Bank to permit full inspection was granted on August 21, 1975, in Ex parte Miles, 294 Ala. 462, 318 So.2d 697 (1975). The case now before us is the appeal from the summary judgment on the penalty. The Bank has filed a motion to dismiss the appeal.

There are two issues for review. First, whether the Bank’s motion to dismiss the stockholders’ appeal is due to be granted. Second, if the appeal is not dismissed, whether the trial Judge erred in granting a summary judgment against the stockholders’ counterclaim for the statutory penalty.

I.

On the Motion to Dismiss Appeal

The Bank contends that the stockholders are attempting to appeal from an incomplete adjudication of the case below. It contends that ARCP 54(b) prevents the appeal because, when the stockholders appealed, the trial Judge had entered a judgment only upon the counterclaim for the penalty, and the trial Judge had not made “an express determination that there is no just reason for delay and an express direction for the entry of judgment.” ARCP 54(b).

This Court, in Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975), discusses the effect of Rule 54(b) and is relationship to Alabama’s prior statutory provisions for appeal and holds that Rule 54(b) neither superseded, nullified, nor modified Tit. 7, § 754, Code, relating to the finality of judgments. Cates further observes, “Title 7, Section 754, provides that, except in unusual circumstances, appeal must be only from a final judgment. Rule 54(b) merely sets out one instance where a judgment may now be made final although it would not have been final prior to the adoption of the new rules.” Therefore, to determine whether the stockholders’ appeal should be dismissed, we must not confine our inquiry to the language of Rule 54(b), but we must look to all applicable Alabama law.

Our inquiry must begin with a reyiew of the procedural posture of this case at the time of the stockholders’ appeal. The order of the trial Judge, the subject of this appeal, primarily did two things. First, it denied the stockholders’ demand for unlimited inspection and appointed a “Special Master” to inspect the Bank’s records to determine which records the stockholders should be allowed to inspect. Second, it granted the Bank’s motion for summary judgment on the counterclaim for the statutory penalty.

The stockholders brought mandamus to compel full inspection and brought appeal to revise the order denying the statutory penalty. A writ of mandamus was granted in Ex parte Miles, supra. The rationale for granting mandamus in that case was that the stockholders were being denied “a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion,” citing Ex parte Watters, 180 Ala. 523, 61 So. 904 (1913), and Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945).¹

Granting mandamus, says the Bank, on the issue of inspection operates to preclude the instant appeal under Rule 54(b). The Bank contends, by granting mandamus, this Court acknowledged that the entire case had not been fully adjudicated below; therefore, the appeal on the penalty is an appeal from a nonfinal judgment; and, without the express direction for entry of judgment under Rule 54(b), it is due to be dismissed. We disagree.

Our holding that mandamus was proper in Ex parte Miles, supra, did not necessarily mean that appeal was not also available. It only meant that appeal was not adequate because of the exigencies of the situation and because of the peremptory, nondiscretionary duty violated by the trial Judge. To determine whether appeal is proper in the instant case, it is necessary to determine whether the trial Judge’s order, in all its component parts, was appealable when he entered it. If it were appealable at that time, then the “express determination” and “express direction” requirements of Rule 54(b) are unnecessary. Cates v. Bush, supra.

We hold that the trial Judge’s order appointing a Master to determine which records the stockholders could properly inspect is a final judgment for purposes of appeal; therefore, the summary judgment on the penalty is not a partial judgment and it is appealable without a Rule 54(b) determination and direction.

A large body of case law has developed around the problem of when an order which refers part of a case to a register or master is a final judgment. Chadwick v. Town of Hammondville, 270 Ala. 618, 120 So.2d 899 (1960). The first Alabama cases on the problem are now over 130 years old and their rules have been followed consistently. The earliest statement is “that a decree ‘is final when it ascertains all the rights of the parties in litigation,’ although there may be a reference to the master to ascertain facts for an account between the parties.” Bank of Mobile v. Hall, 6 Ala. 141 (1844), and Weatherford v. James, 2 Ala. 170 (1841).

The rule arose in equity jurisprudence because old Equity Rules 79 through 88 were the only effective vehicle for appointing masters prior to the adoption of the Alabama Rules of Civil Procedure. As the equity rule developed, it was broadened to apply to various equity situations. The most common statement is, “The test' of the finality of a decree sufficient to support an appeal is that it ascertains and declares the rights of the parties and settles the equities, and is not controlled by the fact that the cause remains in fieri in respect to other matters.” McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973); Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75 (1946); Carter v. Mitchell, 225 Ala. 287, 142 So. 514 (1932).

ARCP 53 has now superseded old Equity Rules 79 through 88, and ARCP 2 has merged the procedural distinction between law and equity into one form of action— the “civil action”. Rule 53 provides for reference to a master in any civil action in which the presiding judge finds it necessary. It is now incumbent upon this Court to determine whether the equity case law allowing appeal after a reference to master should be extended to the Rule 53 situation. The rationale for the equity rule was articulated in one of the early cases. That rationale is: If the chancellor has erroneously ascertained the merits of the case, the delay, expense, and trouble attending the ascertainment of facts and preparation of a report by the master are unnecessary and profitless. Bank of Mobile v. Hall, supra.

We find that the policy articulated by this Court in Bank of Mobile case is as applicable today as it was in 1844. Rule 53(a) provides that “the compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties ... as the court may direct.” In the instant case, the Court ordered the Bank of Heflin, Miles, and the Woods to pay $400 each to defray expenses of the Master. If it is determined that the trial Judge adjudicated all of the merits of the case, and the stockholders were going to appeal regardless of the content of the Master’s report, it would be “unnecessary and profitless” for them to await the Master’s report before appealing. This is the same situation this Court faced when appeals were brought from equity trials after reference to a master and the same rule must apply here.

We now address the question of whether the instant case falls within the scope of the rule allowing appeal from orders which include references to masters. The purpose of this inquiry, it must be remembered, is not to determine the propriety of our granting mandamus in Ex parte Miles, supra, but rather, it is to determine whether the trial Judge’s order constituted a final judgment in all of the claims, thereby taking this case beyond the scope of Rule 54(b). The mere fact that the Court has ordered a reference to a Master is not, of itself, sufficient to make out a final judgment for purposes of appeal. It is also necessary that the trial Judge has decided “the substantial merits of the controversy — the material issues of fact and law litigated or necessarily involved in the cause, which determine the legal rights of the parties, and the principles by which such rights are to be worked out.” Adams v. Sayre, 76 Ala. 509 (1884).

In the instant case, we can determine what material issues of fact and law are involved in the controversy from the pleadings of the parties. The Bank’s complaint prayed that the Court set forth in detail the books, records of account, memoranda, and other information that the .stockholders were entitled to see, but that it deny the stockholders access to confidential information and information held by the Bank in its fiduciary relationship with its customers. The stockholders’ answer denied that the Bank had a right to withhold any records from stockholder inspection based on its claim of confidential relationship and prayed that the Court direct the Bank to immediately make available all of its books and records of account for their examination.

In its order, the Court found:

(1) That the Bank’s fiduciary relationship and duty to its customers did place limitations upon the access to all writings or records of the Bank.

(2) That the stockholders could not have access to the individual files and memoranda from which the books and records are prepared.

(3) That the Bank should not reveal such things as amount on deposit or savings of customers, individual certificates of deposit, and private memoranda of customers.

After making these findings, the Court referred the matter to a Special Master who was directed to return a report specifying which of the Bank’s records did not fall within the category of confidential information and were, therefore, available for inspection.

When the Court made its findings and issued its decree in accordance therewith, including reference to the Master, it adjudicated the substantial merits of the controversey. It granted the Bank’s request to limit the inspection and denied the stockholders’ demand for complete inspection. All that remained was for a Master to determine exactly which of the Bank’s records fell within the prohibited category. Regardless of what the Master reported, he could not have broadened, or otherwise enlarged upon, the limited right of inspection as decreed by the Court. Thus, the stockholders lost their case on the merits and their right of appeal necessarily accrued at that time. Indeed, had the stockholders awaited the Master’s report, they would have risked the running of the statutory period for appeal. O’Rear v. O’Rear, 227 Ala. 403, 150 So. 502 (1933).

This situation falls exactly within the policy behind allowing appeals, under certain circumstances, from reference to masters. We find that it would have been “unnecessary and profitless” for the stockholders to have awaited the Master’s report to appeal; and we hold that, under the adjudication of substantial merits rule set out in McCulloch, the order appointing the Master was final and would have supported an appeal. Therefore, the stockholders’ appeal from the summary judgment entered against their counterclaim for the statutory penalty is not an appeal from a nonfinal judgment and it is not due to be dismissed. Motion to dismiss the appeal is denied.

II.

On the Merits of the Appeal

The trial Judge granted the summary judgment and dismissed the stockholders’ counterclaim because he found that “the filing of the declaratory judgment action does not constitute a refusal or denial of the records.” Our review of the trial Court’s order granting a motion for summary judgment requires us 'to address two issues.

First, whether the trial Judge’s decision is legally correct. Second, whether affidavits and depositions of the parties show there was no genuine issue of material fact as required by Rule 56(c).

On the first issue, we must decide whether a declaratory judgment filed by a corporation to limit stockholders’ inspection of corporate records is a “refusal” of the stockholders’ demand as a matter of law. The purpose of the statutory penalty is to make corporate records more accessible to stockholders. If there were no penalty, the usual course for a stockholder seeking inspection would be to file suit to enforce his right. The expense of such litigation would discourage many stockholders from pursuing their rights. The penalty forces a corporation to assume financial responsibility for its refusal.

If we were to hold that filing of declaratory judgment action was not a refusal as a matter of law, then the Board of Directors can easily circumvent the penalty provision while still putting the stockholders to the expense of litigation to enforce their inspection rights. By rendering the penalty provision, inoperative, declaratory judgment actions would shield the Board from the demands of those stockholders who cannot afford to pursue litigation.

Therefore, we cannot agree that filing a declaratory judgment action is not a refusal to allow inspection. The fact that the Board of Directors, rather than the stockholders, has instituted the litigation cannot exonerate the Board of its duty to allow inspection. We therefore hold that .when the Board forced the stockholders to litigate in order to pursue their rights, it effectively refused to allow inspection.

The remaining issue for liability under the penalty statute is whether the Bank’s refusal to allow full inspection of its books and records was “without reasonable cause.” Tit. 10, § 21 (46). Ordinarily, this question of reasonable cause is a disputed factual issue to be determined with reference to the facts and circumstances in each case.² As the Committe Comments to Rule 56 state: “The summary judgment procedure is not a substitute for the trial of disputed issues of fact. On a motion for summary judgment, the court cannot try issues of fact.” 10 Wright and Miller, Federal Practice and Procedure, § 2712.

The posture of the record in the instant .case, however, reveals an out of the ordinary situation. Following responsive pleadings, including counterclaims for the statutory penalty, filed by the stockholdejs to the Bank’s Bill for Declaratory Judgment, each of the parties, with supportive affidavits and depositions, moved the Court for summary judgment. Understandably, when the trial Court denied the stockholders the right of full inspection, it likewise denied their motions for summary judgment and, consistent therewith, granted the Bank’s motion for summary judgment. This had the effect of dismissing the stockholders’ counterclaims.

Unquestionably, had the trial Court denied the Bank’s sought for relief limiting the stockholders’ right of full inspection, it likewise would have denied the Bank’s motion for summary judgment. Ex parte Miles, supra, revised the trial Court’s order denying full inspection on the basis of the clear and nondiscretionary mandate of the statute. Moreover, the right of a stockholder, within reasonable limits and for proper purposes, to inspect the books and records of the corporation in which he owns an interest, absent a contract to the contrary, is hardly dependent upon legislative expression. Indeed, any effort to statutorily limit such right by arbitrarily excluding certain books and records from the scope of full inspection would raise serious constitutional questions.

Given the revision of the trial Court’s order denying full inspection affected by Ex parte Miles, and given our -conclusion that in the context here presented the Bank’s filing of a declaratory judgment action was an effective denial of the stockholders’ request for such inspection, we necessarily must reverse the order below granting the Bank’s motion for summary judgment and dismissing the stockholders’ counterclaims. This is not to say that the Bank’s mere filing of a declaratory judgment action in itself is an effective denial of the right of inspection. Rather, we say that the basis for the denial was the defense of confidentiality and upon that basis there was an effective denial of the right of inspection resulting in the right to recover the statutory penalty under Tit. 10, § 21(46).

The only basis for the Bank’s refusal is summed up in its President’s deposition when he states that the Bank’s confidential relationship with its customers made a declaratory judgment action reasonable, and thus its refusal was with reasonable cause. Since this constitutes a legal contention merely, which has been rejected by Ex parte Miles and the instant appeal, the trial Court is directed on remand to grant the stockholders’ motions for summary judgment and assess against the Bank in favor of each stockholder respondent a penalty equal to 10% of the value of the stock owned by each respective stockholder.

Reversed and remanded with instructions.

MERRILL, BLOODWORTH, MADDOX, FAULKNER, ALMON and EM-BRY, JJ., concur. SHORES, J., concurs specially. HEFLIN, C. J.„ not sitting.

1 . Moreover, it has long been recognized that mandamus is the appropriate remedy whenever a board of directors refuses its stockholders the right to inspect corporate records. Alabama Gas Corporation v. Morrow, 265 Ala. 604, 93 So.2d 515 (1957), and Loveman v. Tutwiler Inv. Co., 240 Ala. 424, 199 So. 854 (1941).

2 . For an in depth discussion of the objective test applicable to the statutory requirements that the examination of the books and records by a stockholder be for a “proper purpose” and that the, penalty be imposed for an officer’s refusal of sueh examination “without reasonable cause”, see Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963).