Link v. L.S.I., Inc. , 793 N.W.2d 44 ( 2010 )

#25525, #25610-aff in pt, rev in pt & rem-DG
2010 S.D. 103IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
** * *
(#25525)
JAY E. LINK, Plaintiff and Appellant,
v.
L.S.I., INC., a South Dakota
Corporation, JOHN E. LINK,
TROY J. LINK, JOHN A. HERMEIER,
LAWRENCE J. JARVELA, TERRY L.
SMITH, DOUGLAS WALZ and
JOHN DOE DEFENDANTS 1-5, Defendants and Appellees.
* ** *
(#25610)
JAY E. LINK, Plaintiff and Appellee,
v.
L.S.I., INC., a South Dakota
Corporation, JOHN E. LINK,
TROY J. LINK, JOHN A. HERMEIER,
LAWRENCE J. JARVELA, TERRY L.
SMITH, DOUGLAS WALZ and
JOHN DOE DEFENDANTS 1-5, Defendants and Appellants.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
JERAULD COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JON R. ERICKSON
Judge
* * * *
ARGUED NOVEMBER 16, 2010
OPINION FILED 12/29/10
JON C. SOGN
LEE A. MAGNUSON
DANA VAN BEEK PALMER of
Lynn, Jackson, Shultz and Lebrun, PC
Sioux Falls, South Dakota Attorneys for plaintiff and
appellant Jay E. Link (#25525)
For Appellee (#25610).
BRIAN KEENAN
MICHAEL J. APRAHAMIAN of
Foley & Lardner, LLP
Milwaukee, Wisconsin Attorneys for plaintiff and
appellant Jay E. Link (#25525)
For Appellee (#25610).
TIM R. SHATTUCK of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls, South Dakota Attorneys for defendants and
appellants, L.S.I., Inc., et al.
(#25610)
For Appellee (#25525).
BRIAN P. NORTON
MICHAEL D. FREEBORN
MICHAEL P. KORNAK
ANDREW C. NORDAHL of
Freeborn & Peters, LLP
Chicago, Illinois Attorneys for defendants and
appellants, L.S.I., Inc., et al.
(#25610)
For Appellee (#25525).
#25525, #25610
GILBERTSON, Chief Justice
[¶1.] Jay Link petitioned for judicial dissolution of L.S.I., Inc. (LSI). The
circuit court denied the petition and granted LSI’s petition to buy out Jay’s shares
at a “fair value.” Jay appeals the valuation of his shares, the condition of the
payments, and the dismissal of his remaining claims. We affirm in part, reverse in
part, and remand. LSI filed a later appeal, challenging the interest awarded on the
buy-out. We conclude the circuit court did not issue a final order reviewable on
appeal.
FACTS
[¶2.] Jack Link and his sons, Jay and Troy, owned various companies that
produced and distributed meat and cheese snacks. Link Snacks, a Wisconsin
corporation, was founded and owned by Jack. It is the sole customer of LSI, a South
Dakota corporation located in Alpena that produces snack products pursuant to
Link Snacks’ specifications. L.S.I., Inc.-New Glarus is another Wisconsin
corporation that makes products for Link Snacks. Jay was employed at LSI, Link
Snacks, and LSI-New Glarus. After years of conflict with Jack and Troy, Jay
agreed to terminate his employment with the companies. The parties were unable
to negotiate a buy-out of Jay’s shares. In September 2005, Link Snacks, Jack, and
Troy filed an action in Wisconsin to, in part, enforce buy-out agreements for the
Wisconsin companies. The complaint was amended, alleging Jay breached fiduciary
duties. Jay filed a counterclaim alleging Jack, Troy, and other officers and directors
of the Link companies breached fiduciary duties. On November 17, 2005, Jay filed
an action in South Dakota seeking to dissolve LSI and recover damages from LSI
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directors for breach of fiduciary duties. In March 2006, the South Dakota action
was stayed pending disposition of the Wisconsin action. On November 17, 2006,
LSI filed an election to purchase Jay’s shares under SDCL 47-1A-1434 in an effort
to prevent dissolution.
[¶3.] As part of the Wisconsin action, the parties entered into a stipulated
order regarding appraisal of various Link companies. The agreed appraisal process
for Jay’s shares involved three appraisers, one selected by Jay, one by the Link
companies, and a neutral appraiser. The appraisers were ordered to determine the
“fair market value” of Jay’s shares in LSI, that is, “the price which a willing buyer
would pay a willing seller for such shares.” They were also ordered to determine
the “fair value” or the undiscounted, proportionate value of Jay’s shares in LSI, as a
going concern, as of December 31, 2005. As part of the process, each appraiser
wrote a preliminary report that was exchanged with the other appraisers. They
discussed each other’s conclusions. The neutral appraiser originally valued Jay’s
shares in LSI at $21,000,000. However, after discussing the amount with the
others, LSI’s appraiser convinced him that the value should be lower to account for
the fact that LSI only had one customer, which is an extremely high customer
concentration. This fact lowered the undiscounted “fair value” amount of Jay’s LSI
shares to $16,550,000 in the final report, which was determined by a majority vote
of the appraisers. The “fair market value” of Jay’s shares in LSI was $11,200,000.
[¶4.] After years of discovery and waiting for reports, the Wisconsin court
conducted a three-phase jury trial in May 2008. The jury in the Wisconsin action
found that Troy and Jay each owned 50% of LSI, making both equal shareholders.
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The jury also found that Jay had breached fiduciary duties to LSI both while
employed and after he had left. The jury found that the four directors sued in the
action, two of whom were also LSI directors, had not breached any duties to Jay,
but that Jack and Troy had. Finally, the jury found that Jay was not oppressed and
the court denied Jay’s petition for dissolution of the Wisconsin corporations.
Specific performance of the Wisconsin companies’ buy-out agreements was ordered.
Notably, there was no buy-out agreement for LSI. The Wisconsin court entered a
final judgment on October 2, 2008.
[¶5.] LSI noticed a hearing to lift the stay in the South Dakota action on
October 16, 2008, and to proceed with its election to purchase Jay’s shares in LSI.
Jay agreed to the stay being lifted but argued the motion to proceed with the
election was untimely. The circuit court rejected Jay’s argument and set a hearing
for May 2009 to determine the “fair value” of Jay’s shares under SDCL 47-1A-
1434.3.
[¶6.] At the hearing, the parties presented extensive expert testimony from
the party appraisers and neutral appraiser in the Wisconsin action, in addition to
detailed valuation reports. On May 15, 2009, the circuit court issued a
Memorandum Decision, in which it found that LSI was a stand-alone corporation,
separate from the Wisconsin Link corporations; that the appropriate date for
determining the “fair value” of Jay’s shares was December 31, 2005; that Jay was
entitled to “fair value” of his shares, meaning his proportionate interest in LSI as a
going concern without minority or lack-of-marketability discounts; and, that the
undiscounted, proportionate “fair value” of Jay’s shares in LSI was $16,550,000,
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thus rejecting Jay’s appraiser’s opinion. An order was entered adopting the
Memorandum Decision on June 5, 2009, and the circuit court ordered further
proceedings to determine the terms and conditions for the purchase of Jay’s shares.
LSI filed a motion with supporting affidavits to pay the fair value in monthly
installments over five years with 4% interest commencing on May 15, 2009, the date
of the court’s valuation. Jay moved for an order to receive a lump-sum payment of
the fair value within 10 days with an interest rate of either 12 or 15%, compounded
annually and commencing on November 16, 2005.
[¶7.] On October 7, 2009, the circuit court issued a Memorandum Decision,
finding that requiring LSI to pay Jay in one lump-sum payment would be a
hardship and that monthly payments for five years were necessary in the interests
of equity. It also awarded Jay simple interest on $16,550,000 at 4.5% beginning
November 16, 2005. This rate amounted to nearly three million dollars in interest.
The court also found Jay had failed to demonstrate “probable grounds” to dissolve
LSI and therefore denied Jay’s request for attorney’s fees. An order adopting the
Memorandum Decision was issued December 2, 2009, in which Jay was ordered to
sell all his shares in LSI pursuant to those terms. No security was given to Jay for
the fair value amount. The court dismissed the action with prejudice, including the
breach of fiduciary duty claims against two LSI directors residing in South Dakota.
[¶8.] On January 6, 2010, LSI moved the circuit court under SDCL 15-6-
60(b) to vacate its award of accrued interest granted pursuant to the December 2,
2009 order. On January 11, 2010, Jay filed a notice of appeal, including the
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December 2, 2009 order that included the award of interest. Appeal #25525. The
circuit court heard LSI’s motion to vacate the award of accrued interest on March 4,
2010, and entered an order denying the motion without prejudice on March 23,
2010. LSI filed a notice of appeal on April 16, 2010, challenging the denial of the
order to vacate the award of accrued interest. Appeal #25610. By order of this
Court, appeals #25525 and #25610 were consolidated.
[¶9.] Jay raises the following issues on appeal:
1. Whether the circuit court erred in determining the “fair
value” of Jay’s shares.
2. Whether the circuit court erred in ordering the fair value
of Jay’s shares to be paid in monthly installments over
five years.
3. Whether the circuit court erred in not granting Jay any
security for the fair value LSI owed him.
4. Whether the circuit court erred in dismissing Jay’s claims
against LSI Directors with prejudice.
[¶10.] LSI raises the following issue on appeal:
5. Whether the circuit court erred in denying LSI’s motion
to vacate Jay’s award of accrued interest.
STANDARD OF REVIEW
[¶11.] The parties dispute the standard of review for valuation of shareholder
stock bought pursuant to an election under SDCL 47-1A-1434. Jay argues that
review should be de novo because it is a mixed question of law and fact. He
compares the issue to a review of a circuit court’s determination of the fair value of
a dissenting shareholder’s stock and cites Richardson v. Palmer Broadcasting Co.,
353 N.W.2d 374, 378 (Iowa 1984). LSI argues that the circuit court found as a
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matter of fact that $16,550,000 was the fair value of Jay’s shares, and therefore the
standard of review is clearly erroneous. LSI cites the following cases to support its
position: In re Midnight Star Enter., L.P., 2006 S.D. 98, ¶ 7, 724 N.W.2d 334, 336;
Fausch v. Fausch, 2005 S.D. 63, ¶ 11, 697 N.W.2d 748, 753; Priebe v. Priebe, 1996
S.D. 136, ¶¶ 8, 18, 556 N.W.2d 78, 80.
[¶12.] We stated in Midnight Star that “[o]ur review of a circuit court’s
valuation of property is clearly erroneous. Whether the circuit court used the
correct method of determining fair market value is a question of law reviewed de
novo.” 2006 S.D. 98, ¶ 7, 724 N.W.2d at 336 (internal citations omitted) (emphasis
added). See also First Western Bank Wall v. Olsen, 2001 S.D. 16, ¶ 12, 621 N.W.2d
611, 616 (applying a de novo standard of review because the circuit court
determined the “fair value” of dissenting shareholders’ stock, which is a question of
statutory interpretation). In this case, the statute requires the circuit court to
determine “fair value” as opposed to fair market value. However, Midnight Star’s
standard applies because we are reviewing to ensure an appropriate valuation
method was used.
[¶13.] In ordering the terms of the payment for Jay’s shares, the circuit court
was exercising its discretion under the statutes. This Court must determine if the
circuit court abused its discretion. DFA Dairy Fin. Serv., L.P. v. Lawson Special
Trust, 2010 S.D. 34, ¶ 18, 781 N.W.2d 664, 670 (“If facts plainly exist to warrant
equitable relief and no facts exist to disentitle a party to such relief, then a court is
not free simply to ignore the remedy in the name of discretion.”) (citing Adrian v.
McKinnie, 2002 S.D. 10, ¶ 9, 639 N.W.2d 529, 533).
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[¶14.] The dismissal of claims is a question of law. We review questions of
law de novo. McGregor v. Crumley, 2009 S.D. 95, ¶ 15, 775 N.W.2d 91, 95.
ANALYSIS AND DECISION
[¶15.] 1. Whether the circuit court erred in determining the
“fair value” of Jay’s shares.
[¶16.] SDCL 47-1A-1434.4 provides that “the court . . . shall . . . determine
the fair value of the petitioner’s shares as of the day before the date on which the
petition . . . was filed.” This Court has not had an opportunity to review a circuit
court’s “fair value” determination under this statute. No definition of the term is
provided. The Legislature could have put a definition in the “General Provisions”
section of South Dakota’s Business Corporation Act, SDCL 47-1A-140, but did not.
Instead, a definition of “fair value” was provided as it related to statutes governing
appraisal rights. SDCL 47-1A-1301(4). 1 This Court, however, reviewed a “fair
value” determination under repealed SDCL 47-6-40(3) in Olsen, 2001 S.D. 16, 621
1. SDCL 47-1A-1301(4) provides:
“Fair value,” the value of the corporation’s shares determined:
(a) Immediately before the effectuation of the corporate
action to which the shareholder objects;
(b) Using customary and current valuation concepts and
techniques generally employed for similar businesses in the
context of the transaction requiring appraisal; and
(c) Without discounting for lack of marketability or minority
status except, if appropriate, for amendments to the articles
pursuant to subdivision 47-1A-1302(5).
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N.W.2d 611. SDCL 47-6-40(3) 2 related to the valuation of a dissenting
shareholder’s stock.
[¶17.] Although the determination of fair value in Olsen is informative, it is
not controlling because the purposes and policies in that case differ from elections to
buy out a shareholder in a dissolution case. The purpose of dissenters’ rights
statutes is to protect minority shareholders. Olsen, 2001 S.D. 16, ¶ 16, 621 N.W.2d
at 617. In this case, Jay owned 50% of the stock, making him an equal owner as
opposed to a minority shareholder. Also in contrast to dissenting shareholders,
petitioners for dissolution who are being bought out are more akin to “willing
sellers” who want out of the corporation, which could be for a variety of reasons.
Petitioners for dissolution are trying to get out of the corporation either through
dissolution or by being bought out.
[¶18.] However, some of the same principles from dissenting-shareholders
cases still apply. For instance, the corporation (or in some cases, existing
shareholders) will increase its control or ownership in the corporation when it buys
out a shareholder. The shares are not being bought by a third party. This makes
application of a “fair market value” determination inappropriate because the
economic reality is that the shares are not being bought on the market. In Olsen,
we rejected the Bank’s assertion that “fair value” was analogous with “fair market
2. Repealed in 2005, SDCL 47-6-40(3) provided that “fair value” was defined as
“[the shares] value immediately before the effectuation of the corporate action
to which the dissenter objects, excluding any appreciation or depreciation in
anticipation of such corporate action unless such exclusion would be
inequitable.” SDCL 47-1A-1301(4) replaced SDCL 47-6-40(3).
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value.” Id. ¶ 17, 621 N.W.2d at 617. Our definition of “fair value” in Olsen was the
“value of those shares as a proportionate interest in the business as an entity, in
other words as ‘a going concern.’ . . . An appraisal proceeding must focus [on] . . . the
stock only as it represents a proportionate part of the enterprise as a whole.” Id.[¶19.] Although the definitions of “fair value” provided by SDCL 47-1A-
1301(4) and Olsen are not controlling, it is appropriate in this case to draw from
them for guidance, as the circuit court did. This approach is supported by the
comments to the Model Business Corporation Act (MBCA). The MBCA comments,
on which SDCL ch. 47-1A is based, note that § 14.34 “does not specify the
components of ‘fair value,’ and the court may find it useful to consider valuation
methods that would be relevant to a judicial appraisal of shares under section
13.30.” 3 SDCL §§ 47-1A-1330 to -1330.4 are synonymous with MBCA § 13.30. The
comment goes on to caution that “the two proceedings are not wholly analogous,
however, and the court should consider all relevant facts and circumstances of the
particular case in determining fair value.” 4 This statute was written to give
substantial discretion to a circuit court in considering the equities of each case.
3. The comments were not enacted as part of the South Dakota statute.
Nevertheless, we have relied upon comments to uniform laws in previous
cases as persuasive authority in construing the statute. Estate of Klauzer,
2000 S.D. 7, ¶ 33 n.5, 604 N.W.2d 474, 481 n.5. We do so mindful that SDCL
2-14-13 states that a uniform law is to be interpreted and construed “as to
effectuate its general purpose to make uniform the law of those states which
enact it.” Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D. 1994).
4. The comment goes on to give several factors that courts may want to consider
in determining value, such as liquidating value, wrongful conduct or the
absence thereof, or any shareholders’ agreements. The circuit court discussed
the egregious conduct of the parties and noted that “there is little in the
(continued . . .)
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[¶20.] Jay argues a non-marketability discount inappropriately tainted the
valuation process. 5 The parties stipulated in the Wisconsin action that each party
would hire their own appraiser and that there would also be a neutral appraiser.
They agreed upon a two-step process. First, all the parties would prepare a
preliminary written report setting forth their opinions as to the value of LSI and
Jay’s 50% interest in LSI, including a breakdown of any discounts. Next, the
appraisers would exchange those reports, meet to discuss, and issue a final report,
to be determined by a majority vote if necessary. This process was followed. The
neutral appraiser and LSI’s appraiser agreed in the final report that the
undiscounted fair value of Jay’s shares in LSI was $16,550,000. The neutral
appraiser testified that when he issued his initial report, in which he initially
valued Jay’s shares at $21,000,000, he did not take into account LSI’s “extremely
concentrated customer base relative to the peer group of companies that we utilized
from a market perspective.” LSI’s only customer is Link Snacks. After discussion,
the neutral appraiser testified he was persuaded that he had not considered all the
different risks associated with only having one customer and that this was a
“proper” criticism of his initial opinion. Jay argues that this “give and take” process
________________________
(. . . continued)
evidence to determine from where it started. Therefore . . . this [C]ourt does
not believe it is pertinent in determining the fair value to be assessed LSI
now that division has been determined.”
5. Jay does not argue on appeal that the circuit court erred in declining to apply
a minority discount to the value of his shares. Although some of the
language used by the circuit court in its order mixes the minority and non-
marketability discount language, it is clear that the circuit court did not
intend that either discount apply.
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included a decrease in valuation because “a hypothetical willing buyer would pay
less for LSI because of the significant risk associated with such a high customer
concentration.”
[¶21.] After hearing expert testimony regarding the valuation and the
process by which the amount was determined, the circuit court accepted the
valuation of Jay’s shares in LSI at $16,550,000, as reached by a majority of the
appraisers. LSI’s appraiser and the neutral appraiser testified that this amount
was the value of Jay’s shares without regard to discounts. In its Memorandum
Decision, the circuit court stated that he specifically rejected Jay’s appraiser’s
opinions as to valuation. The court noted:
In order to reach these figures, [Jay’s appraiser] projected that
the cost [of] beef would decrease as time went on. In fact, they
did not. Additionally, [Jay’s appraiser] initially took the view
that LSI should be considered as part of the larger entity, the
entire Jack Link’s business entities. However, LSI is a stand-
alone corporation.
The circuit court therefore provided other reasons why it rejected Jay’s appraiser’s
higher valuation besides a discount. Additionally, the circuit court accepted the
higher dollar amount of the majority appraisers’ valuation, not the lower
$11,200,000 amount which they said included discounts. Furthermore, the decrease
from the neutral appraiser’s initial report was not a discount. The decrease was
due to further discussion and consideration of LSI’s high customer concentration,
which is one of many factors the appraisers considered in reaching the final opinion
on the fair value of Jay’s shares. In looking at the entire appraisal process, to which
Jay agreed, and the many factors of the business that had to be considered, this
decrease was not a discount.
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[¶22.] The circuit court determined that it would be “unjust and inequitable”
to apply a discount for either non-marketability or lack-of-control of shares. A non-
marketability discount is applied when shares lack a ready and available market
based on the theory that the shares have less value than stock that is easily
liquidated. Olsen, 2001 S.D. 16, ¶ 25, 621 N.W.2d at 619. It is not relevant that the
petitioning shareholder would have had a difficult time liquidating their shares as
that was never their intent. Under SDCL 47-1A-1430, a petitioning shareholder
was trying to have the corporation dissolved. A buy-out election is a way for
remaining shareholders or the corporation to stop that dissolution. Because LSI
elected to purchase Jay’s shares, a discount for non-marketability is inapplicable as
LSI elected to be a ready market for the shares. “A lack of marketability discount is
inapposite when a corporation elects to buy out a shareholder who has filed for
dissolution of a corporation.” Charland v. Country View Golf Club, Inc., 588 A.2d
609, 613 (R.I. 1991). Therefore, we find the reasoning in Olsen persuasive, even
though that case involved dissenting shareholders and is not controlling, and we
determine that the circuit court applied an appropriate method of valuation in this
case.
[¶23.] 2. Whether the circuit court erred in ordering the fair
value of Jay’s shares to be paid in monthly
installments over five years.
[¶24.] Jay argues SDCL 47-1A-1434.6 presumes a lump-sum payment. It
provides in part, “The purchase ordered pursuant to § 47-1A-1434.4 shall be made
within ten days after the date the order becomes final.” However, SDCL 47-1A-
1434.4 provides in part, “Upon determining the fair value of the shares, the court
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shall enter an order directing the purchase upon such terms and conditions as the
court deems appropriate, which may include payment of the purchase price in
installments, if necessary in the interests of equity[.]” (emphasis added). Jay argues
LSI has not overcome the “presumption.”
[¶25.] The circuit court rejected Jay’s argument that SDCL 47-1A-1434.6
created a presumption. We agree. The language of SDCL 47-1A-1434.4 permits a
court, in its discretion, to allow payments in installments if necessary in the
interests of equity. These statutes must be read together. See Peterson, ex rel.
Peterson v. Burns, 2001 S.D. 126, ¶ 32, 635 N.W.2d 556, 568. In doing so, a plain
reading of the statutes does not support a presumption of a lump-sum payment.
Furthermore, following basic principles of statutory construction, the circuit court
fulfilled the plain-language requirements of the statute. The circuit court reviewed
financial evidence, including affidavits, submitted by LSI that supported its
argument that it did not have the sum of the purchase price of Jay’s stock readily
available and could not get a loan for the amount. 6
[¶26.] Jay also argued that LSI was judicially estopped from raising financial
hardship as a reason for needing to pay in installments. The circuit court held that
judicial estoppel was not applicable:
6. Jay argues that one of the affidavits, in which the Chief Financial Officer for
Link states that “unnamed banks would not lend the company $16,550,000,”
was hearsay. However, the circuit court specifically stated that it would not
consider that affidavit in determining whether payment in installments was
necessary. Additionally, Jay waived this argument because he had the
opportunity to request an evidentiary hearing regarding this document and
did not do so.
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While it is true that LSI earlier took the position that its
current financial situation was not relevant to [the circuit
court’s] determination, that concerned . . . the value of the
company at the time of the breakdown between the
stockholders. In this instance, the value of the company goes to
a different issue – the ability of the company to make a one-
time payment versus payment in installments.
We agree with the circuit court that judicial estoppel is not applicable. The circuit
court correctly determined that LSI’s financial status at the time of the order was
relevant to the terms of the payments but not to the valuation of Jay’s shares.
[¶27.] The MBCA’s corresponding comments state that “in determining
whether installment payments are ‘necessary in the interests of equity,’ the court
should weigh any possible hardship to the purchaser against the petitioner’s
interest in receiving full and prompt payment of the value of his or her shares.” The
circuit court did not abuse its discretion in ordering the payment to Jay in
installments. There is no statutory presumption of a lump-sum payment. The
circuit court considered proper evidence in determining that installment payments
were “necessary in the interests of equity.” LSI was not judicially estopped from
demonstrating financial hardship to the circuit court.
[¶28.] 3. Whether the circuit court erred in not granting Jay any
security for the fair value LSI owed him.
[¶29.] SDCL 47-1A-1434.4 provides in part:
Upon determining the fair value of the shares, the court shall
enter an order directing the purchase upon such terms and
conditions as the court deems appropriate, which may include
payment of the purchase price in installments, if necessary in
the interest of equity, provision for security to assure payment of
the purchase price and any additional costs, fees, and expenses
as may have been awarded.
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(emphasis added). Like payment in installments, the circuit court enjoys discretion
in ordering the provision of security.
[¶30.] The December 2, 2009, order stated that “the order does not create or
grant a security interest in any of LSI’s assets to or for the benefit of Jay Link, who
upon sale of shares will become an unsecured creditor of LSI.” While the parties
submitted briefs to the circuit court regarding proposed terms of the payment, the
court did not make reference to the issue of security in its Memorandum Decision,
from which LSI prepared the order.
[¶31.] The comments to MBCA section 14.34, from which SDCL 47-1A-1434.4
was adopted, state that “before ordering payment in installments, the court should
be satisfied with the purchaser’s ability to meet the scheduled payments and to
provide such security as the court deems necessary.” Unlike its discussion on the
order to make installment payments, the circuit court did not provide any analysis
or reasoning as to why it did not grant security. We are therefore unable to review
the court’s reasoning for its decision. Jay has brought forth sufficient evidence to
raise the issue of security. Moreover, at oral argument Jay’s counsel indicated that
Jay is ready to transfer his LSI shares. Circumstances have therefore changed
since this matter was last available for the circuit court’s consideration. We remand
on this issue and direct the circuit court to enter findings on the issue of security for
the debt owed to Jay.
[¶32.] 4. Whether the circuit court erred in dismissing Jay’s
claims against LSI directors with prejudice.
[¶33.] As part of the Wisconsin action, Jay alleged breach of fiduciary duty
claims against Jack, Troy, two other LSI directors, John Hermeier and Larry
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Jarvela, and two directors in other Link companies. Using separate jury forms for
each director, the Wisconsin jury found that Hermeier and Jarvela had not
breached any fiduciary duties owed to Jay. In the South Dakota action, Jay alleged
that Jack, Troy, and two LSI directors residing in South Dakota, Terry Smith and
Doug Walz, had breached fiduciary duties owed to Jay as a shareholder.7 Smith
and Walz were not parties in the Wisconsin action. However, Jay’s allegations
against the LSI directors in each action were virtually identical.8 The breach of
fiduciary duty claims were not litigated before the circuit court. As part of the
December 2, 2009 order dismissing the petition for dissolution, the circuit court
stated that “this action is dismissed with prejudice and without costs. . . . This
Court does, however, retain jurisdiction to enforce the terms of this order[.]” The
circuit court did not provide any reasoning or analysis regarding the dismissal.
[¶34.] LSI argues Jay’s dismissed claims are barred by collateral estoppel
and res judicata. 9 We address the applicability of each doctrine in turn. This Court
7. Jay also included Larry Jarvela and John Hermeier in the South Dakota
complaint but does not argue on appeal that it was improper to dismiss his
claims against them.
8. In Jay’s Wisconsin counterclaim and South Dakota claim, he alleged that
“[LSI directors] went along with the scheme [to force Jay out of LSI and
accept less than fair value of his Link ownership interests], in violation of
their fiduciary duties, out of fear of termination and/or loss of compensation.”
9. LSI argues that SDCL 47-1A-1434.5 “contemplates a clean break and a
separation between the company and the petitioning shareholder, by barring
claims that the petitioner may have had as a shareholder.” SDCL 47-1A-
1434.5 provides that “upon entry of an order under . . . 47-1A-1434.4, the
court shall dismiss the petition to dissolve the corporation under § 47-1A-
1430, and the petitioning shareholder no longer has any rights or status as a
shareholder of the corporation, except the right to receive the amounts
(continued . . .)
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recently discussed the doctrine of res judicata in American Family Insurance Group
v. Robnik, 2010 S.D. 69, ¶¶ 14 -22, 787 N.W.2d 768, 774-76. We explained that “res
judicata consists of two preclusion concepts: issue preclusion and claim preclusion.”
Id. ¶ 15, 787 N.W.2d at 774 (citing Christians v. Christians, 2001 S.D. 142, ¶ 46,
637 N.W.2d 377, 387 (Konenkamp, J., concurring specially)). We cited to the United
States Supreme Court’s explanation of the doctrine:
The preclusive effects of former adjudication are discussed in
varying and, at times, seemingly conflicting terminology,
attributable to the evolution of preclusion concepts over the
years. These effects are referred to collectively by most
commentators as the doctrine of “res judicata.” See Restatement
(Second) of Judgments, Introductory Note before ch. 3 (1982);
18 C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 4402 (1981). Res judicata is often analyzed further
to consist of two preclusion concepts: “issue preclusion” and
“claim preclusion.” Issue preclusion refers to the effect of a
judgment in foreclosing relitigation of a matter that has been
litigated and decided. See Restatement, supra, § 27. This effect
also is referred to as direct or collateral estoppel. Claim
preclusion refers to the effect of a judgment in foreclosing
litigation of a matter that never has been litigated, because of a
determination that it should have been advanced in an earlier
suit[.]
Id. (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1, 104
S.Ct. 892, 894 n.1, 79 L.Ed.2d 56 (1984)); see also Christians, 2001 S.D. 142, ¶ 46,
637 N.W.2d at 387.
[¶35.] LSI first invokes collateral estoppel, or the issue preclusion effect of res
judicata. Collateral estoppel “prevents relitigation of issues that were actually
________________________
(. . . continued)
awarded by the order of the court[.]” We do not address this argument as
Jay’s claims are precluded by res judicata.
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litigated in a prior proceeding.” Dakota, Minn. & E. R.R. Corp. v. Acuity, 2006 S.D.
72, ¶ 13, 720 N.W.2d 655, 659. LSI argues that collateral estoppel prohibits Jay
from litigating the breach of fiduciary duties claims in South Dakota. The breach
claims allege that Smith and Walz, as LSI directors, went along with Jack and
Troy’s “scheme” to force Jay out of LSI and accept less than fair value for his
various Link ownership interests “in violation of their fiduciary duties.” LSI notes
that Jay has not alleged that Smith or Walz did anything different than the other
LSI directors in the Wisconsin action, who were not found to have breached their
fiduciary duties. Jay argues that he never actually litigated the issue whether
Smith and Walz breached their fiduciary duties to Jay as directors of LSI.
[¶36.] Issue preclusion, or collateral estoppel, is not appropriate to bar Jay’s
claims in this case. “Issue preclusion only bars ‘a point [that] was actually and
directly in issue in a former action and was judicially passed upon and determined
by a domestic court of competent jurisdiction.’” Robnik, 2010 S.D. 69, ¶ 18, 787
N.W.2d at 775 (emphasis added) (citing Sodak Distrib. Co. v. Wayne, 77 S.D. 496,
502, 93 N.W.2d 791, 794 (1958)). The issue whether Smith and Walz breached
fiduciary duties when they allegedly took actions to “go along with [Jack and Troy’s]
scheme” to force Jay out of the Link enterprises was not litigated as part of the
Wisconsin trial. Smith and Walz were not parties in the Wisconsin action, and
therefore the issue could not have been actually and directly in issue in that action.
Therefore, we conclude that Jay’s claims against Smith and Walz were not barred
by collateral estoppel.
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[¶37.] LSI next argues that the claim preclusion effect of res judicata
prevents litigation of Jay’s alleged breach of fiduciary duty claims.
The doctrine of res judicata serves as claim preclusion to
prevent relitigation of an issue actually litigated or which could
have been properly raised and determined in a prior action. For
purposes of res judicata, a cause of action is comprised of the
facts which give rise to, or establish, the right a party seeks to
enforce. . . . [T]he test is a query into whether the wrong sought
to be redressed is the same in both actions. Res judicata, which
embodies the concepts of merger and bar, is therefore broader
than the issue preclusion of collateral estoppel. Res judicata
bars an attempt to relitigate a prior determined cause of action
by the parties, or one of the parties in privity, to a party in the
earlier suit.
Barnes v. Matzner, 2003 S.D. 42, ¶ 16, 661 N.W.2d 372, 377 (emphasis in original).
[¶38.] Jay argues that res judicata, or claim preclusion, does not apply
because neither Smith nor Walz were named parties in the Wisconsin action. LSI
contends the Wisconsin court would have had personal jurisdiction over Smith and
Walz under Wisconsin’s long-arm statute. 10 We have previously stated that claim
preclusion not only “precludes relitigation of issues previously heard and resolved; it
also bars prosecution of claims that could have been raised in the earlier
proceeding, even though not actually raised.” Robnik, 2010 S.D. 69, ¶ 19, 787
N.W.2d at 775 (citing Lee v. Rapid City Area Sch. Dist., No. 51-4, 526 N.W.2d 738,
10. Wisconsin’s long-arm statute recognizes personal jurisdiction over non-
resident defendants “in any action claiming injury to person or property
within or without this state arising out of an act or omission within this state
by the defendant,” Wis. Stat. § 801.05(3), or “in any action claiming injury to
person or property within this state arising out of an act or omission outside
this state by the defendant, provided that at the time of the injury . . .
solicitation or service activities were carried on within this state by or on
behalf of the defendant[.]” Wis. Stat. § 801.05(4).
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740 (S.D. 1995)). Similarly, LSI argues that the doctrine of res judicata applies not
only to named parties but also to those who could have been sued as parties in an
earlier action as well. Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., Inc., 336
N.W.2d 153, 159 (S.D. 1983) (allowing a new defendant to affirmatively raise the
defense of res judicata to bar a plaintiff from reasserting issues the plaintiff had
previously litigated against another defendant).
[¶39.] We agree with LSI. A party must have had a “full and fair
opportunity to litigate the issues in the prior proceeding” in order to invoke the
claim preclusive effect of res judicata. Robnik, 2010 S.D. 69, ¶ 20, 787 N.W.2d at
775 (citing People ex. rel. L.S., 2006 S.D. 76, ¶ 22, 721 N.W.2d 83, 90). Jay had a
full and fair opportunity to litigate the issue of breach of fiduciary duties by Smith
and Walz as LSI directors in the Wisconsin action. Jay could have sued them as
part of his counterclaim along with the other LSI directors. Jay argues that
jurisdiction in Wisconsin over Smith and Walz was uncertain. However, no attempt
was made to bring them in that action and Jay does not offer a credible explanation
as to why he did not sue them in Wisconsin. Nor does Jay offer an explanation as
to why he did not pursue the claims against Smith and Walz in the South Dakota
action. Other than filing the complaint, Jay took no steps regarding these claims
and made no requests of the circuit court. Thus, we affirm the circuit court’s
dismissal of the claims with prejudice because they are barred by res judicata.
[¶40.] 5. Whether the circuit court erred in denying LSI’s
motion to vacate Jay’s award of accrued interest.
[¶41.] The December 2, 2009 order that Jay appealed contained the award of
interest. In March 2010, the circuit court denied a motion filed by LSI under SDCL
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15-6-60(b)(2) and (b)(3) to set aside Jay’s award of accrued interest in the December
2009 order based on newly discovered evidence and fraud, misrepresentation, or
other misconduct by Jay. The circuit court denied the motion without prejudice.
[¶42.] Neither party raised the question of the circuit court’s jurisdiction to
entertain the motion that is now on appeal to this Court. Although the jurisdiction
of the circuit court to address the motion is questionable, we do not reach the
issue. 11 The circuit court’s language from the order denying the motion to vacate
the award of interest clearly demonstrates the court’s reluctance to rule while this
appeal was pending. The order denying the motion provides LSI “with leave to
resubmit said motion following disposition of the appeal.” The circuit court’s
comments during the hearing on this issue also clearly illustrate the court’s
reluctance to rule during the pendency of this appeal:
11. In Menno State Bank v. City of Menno, 297 N.W.2d 460 (S.D. 1980), the issue
before this Court was “whether SDCL 15-6-60(b) contemplates a procedure
whereby a motion to vacate a judgment may be entertained by a trial court
during the pendency of an appeal.” Id. at 461. This Court adopted the Eighth
Circuit Court of Appeals’ rule:
[I]n such a situation the district court has jurisdiction to
consider the motion and if it finds the motion to be without
merit to enter an order denying the motion from which order an
appeal may be taken. . . . If, on the other hand, the [circuit]
court decides that the motion should be granted, counsel for the
movant should request the [Supreme Court] remand the case so
that a proper order can be entered.
Id. (citing Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1977)). We
do not address whether Menno State Bank applies in this case because the
circuit court here did not make a ruling on the merits of LSI’s motion. Even
if it had ruled favorably on LSI’s motion, this Court received no remand
request.
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What I’m going to do is I’m going to deny the motion for the
moment. Once the Supreme Court rules, we’ll have an
opportunity – you will have an opportunity to raise it again.
And at that time, I think I will have more options available. I
don’t know if Jay has violated SDCL 47-1A-1434 or not, but if he
has, I have certain options available there also. But at this
point in time, I’m not going to make that decision because I
think I’ll have a better opportunity to do that once we know
what the Supreme Court says.
While denying the motion, the circuit court’s decision essentially defers ruling on
the issue until after the appeal has run its course.
[¶43.] SDCL 15-26A-3 limits our appellate jurisdiction by allowing appeals
only from a final order or judgment. Jacquot v. Rozum, 2010 S.D. 84, ¶ 12, 790
N.W.2d 498, 502. We have recognized the United States Supreme Court’s standard
that generally a final decision is “one which ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.” Midcom, Inc. v.
Oehlerking, 2006 S.D. 87, ¶ 15, 722 N.W.2d 722, 726 (citing Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 199, 108 S.Ct. 1717, 1720, 100 L.Ed.2d 178 (1988)).
The circuit court did not enter a final order from LSI’s motion to vacate because it
was denied without prejudice. Nor did the circuit court consider the merits of LSI’s
motion. It made clear it was waiting for the decision from the initial appeal to be
released before making a determination on LSI’s motion. Therefore, whether the
circuit court had jurisdiction or not, it did not enter a final order. Accordingly, we
do not address the merits of LSI’s argument on appeal.
CONCLUSION
[¶44.] We affirm the circuit court on the valuation of Jay’s shares, the order
to pay Jay the fair value of his shares in monthly installments over five years, and
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the dismissal of Jay’s breach of fiduciary duty claims. We reverse on the issue of
security and remand for the circuit court to enter findings. Finally, we remand for
the circuit court to consider LSI’s motion to vacate the award of accrued interest on
the merits.
[¶45.] KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices,
concur.
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