Anderson v. A & R Ag Spraying & Trucking

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484Cheryl V. Anderson, appellee, v. A & R
Ag Spraying and Trucking, Inc., and
Michael Rafert, appellants.
___ N.W.2d ___
Filed July 17, 2020. No. S-19-541.
1. Equity: Stock: Valuation. A proceeding under the provisions of Neb.
Rev. Stat. § 21-2,201 (Cum. Supp. 2016) to determine the fair value of
a petitioning shareholder’s shares of stock is equitable in nature.
2. Equity: Appeal and Error. An appellate court reviews an equitable
action de novo on the record and reaches a conclusion independent of
the factual findings of the trial court; however, where credible evidence
is in conflict on a material issue of fact, the appellate court considers
and may give weight to the circumstance that the trial court heard and
observed the witnesses and accepted one version of the facts rather
than another.
3. Statutes: Appeal and Error. Statutory interpretation is a matter of law,
in connection with which an appellate court has an obligation to reach
an independent, correct conclusion irrespective of the determination
made by the court below.
4. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
5. Expert Witnesses. The determination of the weight that should be given
expert testimony is uniquely the province of the fact finder.
6. Corporations: Stock: Valuation. The trial court is not required to
accept any one method of stock valuation as more accurate than another
accounting procedure.
7. Corporations: Valuation. A trial court’s valuation of a closely held cor-
poration is reasonable if it has an acceptable basis in fact and principle.
8. Equity: Stock: Valuation. A proceeding to determine the “fair value” of
corporate shares is equitable in nature.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484Appeal from the District Court for Pierce County: James G.
Kube, Judge. Affirmed in part, and in part vacated.
George H. Moyer, of Moyer & Moyer, for appellants.
Kathleen K. Rockey, David E. Copple, and Allison Rockey
Mason, of Copple, Rockey & Schlecht, P.C., L.L.O., for
appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Funke, J.
A purchasing shareholder appeals from the district court’s
valuation of the shares of a closely held corporation. We
determine that the district court erred in entering judgment
against both the shareholder and the corporation, rather than
the shareholder alone, and in awarding corporate property
rather than solely the value of the shares to be purchased. We
otherwise affirm.
BACKGROUND
Randy Anderson and Michael Rafert started a trucking and
crop-spraying business in Plainview, Nebraska, in 1999. In
2000, articles of incorporation were filed with the Nebraska
Secretary of State for A & R Ag Spraying and Trucking,
Inc. (A & R). A & R is a subchapter C corporation under the
Internal Revenue Code presently in good standing with the
Nebraska Secretary of State. Randy and Rafert each owned 50
percent of A & R’s shares. In practice, A & R functioned more
like a partnership than a corporation. No corporate bylaws
were prepared or executed, no formal meetings were held, no
minutes were recorded to show A & R’s general operations,
and there was no agreement covering the rights of the share-
holders in the event of a buyout.
Randy passed away in 2015, and his interest in A & R was
transferred to his wife, Cheryl V. Anderson, through probate.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484In February 2017, Cheryl and Rafert attended a corporate
meeting to organize the corporation and elect officers and
directors, but they could not agree on anything and the corpo-
ration became deadlocked.
Shortly thereafter, Cheryl petitioned the district court for
Pierce County for judicial dissolution of the corporation pur-
suant to Neb. Rev. Stat. § 21-2,197(a)(2) (Cum. Supp. 2016).
The petition named A & R and Rafert as defendants and sought
relief against both defendants individually. A & R filed an
answer which requested that the petition be dismissed. Rafert,
represented by the same counsel as A & R, separately filed his
own answer, which alleged that he is “ready, willing and able
to purchase [Cheryl’s] interest but has been unable to agree
with her on a fair price,” and asked that the court determine a
fair price and direct the purchase on such terms and conditions
as may be just. Rafert then filed an election to purchase the
corporation in lieu of dissolution, pursuant to Neb. Rev. Stat.
§ 21-2,201(a) (Cum. Supp. 2016), claiming that he would pur-
chase Cheryl’s shares for $40,000. Pursuant to § 21-2,201(d),
Rafert filed an application for a stay of the dissolution and a
determination of the fair value of Cheryl’s corporate shares as
of the day before the date on which the petition for dissolution
was filed.
At a bench trial held in the matter, the court heard oppos-
ing expert testimony from two experienced certified public
account­ants who opined on the value of Cheryl’s shares. Each
expert performed a valuation engagement in accordance with
professional standards for business valuation. Both experts dis-
cussed the three methods of appraisal: the asset approach, the
income approach, and the market approach.
Janet Labenz, who testified on behalf of Rafert, performed a
valuation using the income approach, which measures a com-
pany’s historical cashflow to determine a value based on pro-
jected future cashflows. A report authored by Labenz indicated
that the asset approach would likely be realized only if the
company’s assets were sold and the liabilities retired. Lynette
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484Pofahl, who testified on behalf of Cheryl, issued two reports,
and she ultimately used the asset approach, which Pofahl
agreed measures a company’s assets and debts to determine
a value if the company were to be sold and liquidated. Both
experts agreed that the market approach, which estimates a
value utilizing comparable sales of similar businesses, does not
apply in this case, because there are no publicly traded compa-
nies sufficiently similar to A & R.
Labenz has over 40 years of experience as a certified public
accountant and holds the designations of being accredited in
business valuation and certified in financial forensics. In per-
forming her valuation, she reviewed the corporation’s income
tax returns from 2013 to 2016, internal depreciation sched-
ules, and a financial statement prepared by A & R’s account-
ing firm on March 31, 2017. She reviewed an appraisal of
A & R’s trucks, trailers, spraying equipment, vehicles, and
tools, which appraisal produced a valuation of $1,275,175 as
of April 7, 2017.
The evidence showed that A & R uses a cash-based account-
ing system. To calculate the normalized cashflow that the
company generates, Labenz analyzed the income tax returns
and made adjustments for depreciation of A & R’s equipment
and interest payments. Based on the income tax returns, the
company made approximately $1,000 in 2013, lost $3,000
in 2014, lost $30,000 in 2015, and lost $185,000 in 2016.
But in 2016, for example, A & R bought $285,000 worth of
equipment and was permitted to deduct that amount on its
tax return. After adding depreciation amounts for each year,
and money paid on interest owed to its bank and equipment
dealers, Labenz found that the company generated $220,000
in 2013, $240,000 in 2014, $305,000 in 2015, and $138,000
in 2016.
Labenz then used a discounted cashflow method in order to
determine how much cash one would have upon purchasing the
company. In her calculation, she deducted income taxes and
the average cost of purchasing equipment, which she placed
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484at $70,000 per year. After making these deductions, Labenz
found that on average, the company generated $113,578 of
after-tax income per year. Labenz then assumed a sustainable
2-percent growth rate, capitalized the income using a rate of 20
percent, and arrived at a business valuation of $677,781. This
amount represents A & R’s free cashflow, or money available
to pay off debt or invest.
Labenz’ final step was to subtract all of the corporation’s
debt. She testified that the corporation owed approximately
$1,152,000 and that an interest payment of approximately
$23,000 was due. Based on her testimony, after payment of
the debt, she valued the company shares at negative $498,000.
Labenz’ report also contained a valuation using the asset
approach of $142,000, to which she added a 15-percent dis-
count for lack of marketability.
Pofahl has over 30 years’ experience as a certified public
accountant and 20 years’ experience as a certified valuation
analyst. In performing her valuation, Pofahl reviewed A & R’s
tax returns from 2010 to 2017, as well as depreciation sched-
ules, the inventory from Randy’s estate, and the same financial
statement and equipment appraisals reviewed by Labenz.
In her first report, Pofahl valued the corporation using a
hybrid of the income and asset methods. Pofahl found A & R’s
weighted cashflow to be $122,564 per year. Utilizing the
“capitalization of benefits” method, Pofahl valued the com-
pany at $753,138. This value included a note receivable from
Rafert, which Pofahl stated was $128,176. Pofahl issued a
revised report prior to the second day of trial, after Labenz
testified, which replaced the valuation approach shown in the
first report. Pofahl stated in her revised report that because
A & R is an asset-heavy business, the asset method is the most
appropriate way to value A & R. She determined the adjusted
book value of A & R to be $573,215 and then accounted for
back wages payable, interest, and the April 7, 2017, appraisal.
Pofahl ultimately concluded that A & R should be valued
between $720,000 and $1 million.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484In its posttrial decree, the court adopted the income approach
for valuing A & R and concluded that the asset approach was
not appropriate, because the corporation would not be liqui-
dated. The court disagreed with Labenz’ decision to subtract
100 percent of the debt from the valuation, because “a busi-
ness, as an on-going concern, is not required to pay back all
of its debt on a lump sum basis.” However, the court agreed
with Labenz’ decision to subtract $23,000 for an interest pay-
ment. The court adjusted Labenz’ valuation to $654,865. The
court rejected Pofahl’s use of the asset approach and consid-
ered her findings based on the income approach discussed in
her first report. The court disagreed with Pofahl’s decision to
include $128,176 for the note receivable. The court referenced
the fact that the amount of the note receivable was actually
$98,176 due to a payment made by Rafert, but then concluded
that the note receivable should not be included under the
income approach, because there is no reason to assume the
note will be collected in one lump sum. The court subtracted
the $128,176 note receivable from Pofahl’s original valua-
tion of $753,138 to arrive at a value of $624,962. The court
averaged the adjusted valuations of the two experts under the
income approach and determined the value of A & R to be
$639,914, as of March 31, 2017, with Cheryl’s share valued
at $319,957.
The court established a payment plan and entered judgment
against both A & R and Rafert. The court found that “in the
interest of equity, and in consideration of the circumstances
surrounding the history of this litigation between the parties,
[Cheryl] shall also be allowed to keep the Chevrolet Avalanche
and the Ford pickup truck, which she currently has in her pos-
session.” The court dismissed Cheryl’s petition to dissolve the
corporation and ruled that she “shall no longer have any rights
or status as a shareholder of the corporation, except the right
to receive the amounts awarded by the Order of the Court.”
A & R and Rafert timely appealed, and we granted their peti-
tion to bypass.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484ASSIGNMENTS OF ERROR
A & R and Rafert assign, restated, that the district court
erred in (1) rendering judgment against A & R when it did not
elect to purchase any shares, (2) valuing the corporation, and
(3) awarding Cheryl two corporate vehicles without authoriza-
tion under § 21-2,201(e).
STANDARD OF REVIEW
[1,2] A proceeding under the provisions of § 21-2,201 to
determine the fair value of a petitioning shareholder’s shares
of stock is equitable in nature. 1 An appellate court reviews
an equitable action de novo on the record and reaches a con-
clusion independent of the factual findings of the trial court;
however, where credible evidence is in conflict on a material
issue of fact, the appellate court considers and may give weight
to the circumstance that the trial court heard and observed
the witnesses and accepted one version of the facts rather
than another. 2
[3] Statutory interpretation is a matter of law, in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the court below. 3
ANALYSIS
No Election to Purchase
by A & R
[4] In their first assignment of error, A & R and Rafert con-
tend that the court erred by entering judgment against A & R,
because the corporation did not elect to purchase any shares
from Cheryl. To resolve this issue, we must interpret provi-
sions of the Nebraska Model Business Corporation Act, Neb.
Rev. Stat. §§ 21-201 through 21-2,232 (Cum. Supp. 2016). In
1
See Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994).
2
Id.3
Id.- 491 -
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484construing a statute, a court must determine and give effect to
the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense. 4
Cheryl initiated this matter by petitioning the district court
to dissolve A & R pursuant to § 21-2,197(a)(2). Section
21-2,201(a) states in part, “In a proceeding under subdivision
(a)(2) of section 21-2,197 to dissolve a corporation, the corpo-
ration may elect or, if it fails to elect, one or more sharehold-
ers may elect to purchase all shares owned by the petitioning
shareholder at the fair value of the shares.” Section 21-2,201(b)
states that an election may be filed by “the corporation or one
or more shareholders,” and it further states that “[a]ll share-
holders who have filed an election or notice of their intention
to participate in the election to purchase thereby become par-
ties to the proceeding . . . .”
Section 21-2,201(c) provides the parties 60 days from the
filing of the first election to reach an agreement. If no agree-
ment is reached, under § 21-2,201(d), any party may file an
application for stay of the dissolution proceedings and for a
determination by the court of the fair value of the petitioning
shareholder’s shares as of the day before the date on which the
petition was filed or as of such other date as the court deems
appropriate under the circumstances. Section 21-2,201(e) pro-
vides that 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.
The record shows that Cheryl filed a petition under
§ 21-2,197(a)(2) and is the petitioning shareholder as described
under § 21-2,201. A & R and Rafert separately filed answers
to the petition. A & R’s answer requested that the petition be
dismissed. Rafert’s answer requested that the court determine
a fair price of Cheryl’s interest and direct purchase on such
4
State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231(2020).
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484terms and conditions as may be just. Rafert timely filed an
election to purchase pursuant to § 21-2,201(b), which was
not resisted. A & R did not file an election to purchase. The
record indicates that the corporation was declared deadlocked
2 months prior to Rafert’s election to purchase.
Based on the language of § 21-2,201 understood in its plain,
ordinary, and popular sense, we determine that A & R was not a
party to the election-to-purchase proceedings. A & R remained
a party in the dissolution proceedings, but the court stayed
and ultimately dismissed the dissolution proceedings, due to
Rafert’s application under § 21-2,201(d). Because we deter-
mine that A & R was not a party to the election-to-purchase
proceedings under § 21-2,201, we conclude that the court
lacked statutory authority to enter judgment against A & R
once it determined the value of Cheryl’s shares. An appellate
court has the duty to determine whether the lower court had the
power, that is, the subject matter jurisdiction, to enter the judg-
ment or other final order sought to be reviewed, and to vacate
an order of the lower court entered without jurisdiction. 5 We
vacate the judgment entered against A & R.
Fair Value
In Rafert’s next assignment of error, he contends that in its
valuation of A & R, the court failed to consider debt and specu-
lated as to the corporation’s value.
In its order, the district court found Pofahl’s asset approach
valuation to be “not helpful” and “hard to understand.”
Additionally, the district court agreed with Rafert’s expert,
Labenz, that because A & R uses a cash-based accounting sys-
tem and was considered an ongoing concern, A & R should be
valued according to the income approach rather than the asset
approach. The court ultimately applied its modified income
valuations of the two experts and split the difference. Rafert
does not contend that the court erred in using the income
5
In re Estate of Tizzard, 14 Neb. App. 326, 708 N.W.2d 277 (2005).
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484approach, nor does Cheryl contend that the court erred in
not using Pofahl’s asset approach. As a result, the sole issue
presented is whether the district court’s valuation is unrea-
sonably high when considering Labenz’ and Pofahl’s reports
and supporting testimony regarding the income approach.
[5-7] The determination of the weight that should be given
expert testimony is uniquely the province of the fact finder. 6
The trial court is not required to accept any one method of
stock valuation as more accurate than another accounting
procedure. 7 A trial court’s valuation of a closely held corpo-
ration is reasonable if it has an acceptable basis in fact and
principle. 8
[8] Section 21-2,201(d) states that upon application of any
party, the court shall “determine the fair value of the peti-
tioner’s shares.” This court has previously recognized that a
proceeding to determine the “fair value” of corporate shares
is equitable in nature. 9 While the Nebraska Model Business
Corporation Act’s election-to-purchase provisions do not
explicitly define “fair value,” the act’s provisions governing
appraisal rights state that “fair value” means the value of the
corporation’s shares determined “[u]sing customary and cur-
rent valuation concepts and techniques generally employed
for similar businesses in the context of the transaction requir-
ing appraisal[.]” 10
In the context of valuing a dissenting shareholder’s stock,
this court has observed that the “‘real objective is to ascertain
6
Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
7
Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986).
8
Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107(2005).
9
See, Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271(1998); Rigel Corp., supra note 1; Becker v. Natl. American Ins. Co., 202
Neb. 545, 276 N.W.2d 202 (1979).
10
§ 21-2,171(4)(ii).
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484the actual worth of that which the dissenter loses because of
his unwillingness to go along with the controlling stockhold-
ers, that is, to indemnify him.’” 11 Such a determination is to
be based on all material factors and elements that affect value,
given to each the weight indicated by the circumstan­ces. 12
As most relevant here, such factors include, among others,
the nature of the business and its operations, its assets and
liabilities, its earning capacity, and the future prospects of the
company. 13 Moreover, the stock is valued by assuming that the
corporation will continue as a going concern and is not being
liquidated. 14
Rafert argues that the district court was required to consider
the $1,152,000 of corporate debt in valuing A & R, but failed
to do so, and that the court’s decision not to depress the value
of A & R was based on speculation.
The record is clear that the district court’s valuation is based
on the testimony of the experts and the supporting exhibits.
Both experts agreed that under the income approach, the busi-
ness must be valued as an ongoing concern, and that under
the asset approach, the business is valued based on its assets
and liabilities as if the business were to be sold and liqui-
dated. The court considered Labenz’ decision to subtract the
whole $1,152,000 of debt and stated that “subtracting 100%
of the debt from the valuation estimate of the business does
not comport with the overall theory of the Income Approach
because a business, as an on-going concern, is not required
to pay back all of its debt on a lump sum basis.” The court
stated, “Of course, debt will have to be serviced on an ongo-
ing basis, but on a much smaller scale than the total amount
owed.” The court agreed with Labenz’ decision to subtract
11
Rigel Corp., supra note 1, 245 Neb. at 127, 511 N.W.2d at 524 (quoting
Warren v. Balto. Transit Co., 220 Md. 478, 154 A.2d 796 (1959)).
12
See id.13
Id.14
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484a $23,000 interest payment that was due, and it noted that
Labenz accounted for ongoing interest payments when she cal-
culated A & R’s normalized cashflow. Therefore, Rafert’s claim
that the court failed to consider debt is not correct.
Additionally, Rafert failed to prove that a lower valuation
would be more accurate. The court noted that both experts
“generously included” assumptions and limiting conditions in
their opinions, which made arriving at an objective valuation
of the corporation difficult. Labenz contradicted her own testi-
mony when she strayed from the income approach by subtract-
ing all of the corporation’s debt. The court was not engaging
in speculation when it rejected Labenz’ blending of the income
and asset methods as unpersuasive.
The evidence indicates that the trucking and spraying opera-
tions of the business have continued after Randy’s death
and that there have been no efforts to liquidate. The experts
agreed that A & R consistently generates significant cash
each year. A & R’s personal banker testified that the company
pays loans on an annual basis and that payments are made
when they become due. He also stated that the company’s
accounts receivable are collectable, which Rafert confirmed
in his testimony. The court carefully considered the opinions
of both experts, identified aspects of the opinions which are
inconsistent with the income approach, adjusted each opinion
accordingly, and determined a value based on the average of
the two opinions.
Upon our de novo review, just as the trial court did, we
find that there is evidence in conflict on material issues of fact
concerning the appropriate considerations in valuing Cheryl’s
shares in A & R. As a result, we consider and give weight to
the fact that the trial court observed the witnesses and accepted
one version of the facts over another. 15 The trial court’s val­
uation of A & R is reasonable and has an acceptable basis in
15
Fredericks Peebles, supra note 6.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484fact and principle. The court did not err in valuing Cheryl’s
shares to be purchased by Rafert. This assignment of error is
without merit.
Vehicles
Rafert’s final assignment of error is that the court improp-
erly awarded Cheryl two corporate vehicles pursuant to
§ 21-2,201(e). Rafert contends that the award of the vehicles
constituted equitable division of corporate property rather than
a determination of fair value under § 21-2,201(d). Cheryl coun-
ters that the award of the vehicles was proper, because under
§ 21-2,201(e), the court may award expenses to the petition-
ing shareholder.
The court heard testimony that prior to Randy’s death,
Cheryl had in her possession two vehicles which were owned
by the company. After Randy’s death, Cheryl retained pos-
session of the vehicles despite Rafert’s request that these
vehicles be returned. The vehicles were included in the equip-
ment appraisal, which both experts utilized in valuing Cheryl’s
shares in A & R. In its decree, the trial court found that “in
the interest of equity, and in consideration of the circum-
stances surrounding the history of this litigation between the
parties, [Cheryl] shall also be allowed to keep the Chevrolet
Avalanche and the Ford pickup truck, which she currently has in
her possession.”
Under § 21-2,201(e), when a corporation or shareholder
makes an election to purchase a petitioning shareholder’s
shares, the court is authorized to award expenses to the peti-
tioning shareholder “[i]f the court finds that the petitioning
shareholder had probable grounds for relief under subdivi-
sion (a)(2)(i)(B) [illegal, oppressive, or fraudulent conduct]
or (D) [misapplication or waste of corporate assets] of sec-
tion 21-2,197 . . . .” The foregoing provision delineates
two of the four situations in which a shareholder may seek
corporate dissolution. We agree with Rafert that the court
could not have awarded Cheryl expenses under § 21-2,201(e),
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484because the court did not make the necessary findings under
§ 21-2,201(e) of probable grounds for relief. Cheryl’s peti-
tion asserted causes of action for an accounting and breach
of fiduciary duty, but the court dismissed Cheryl’s petition
and made no findings that she established probable grounds
for relief concerning dissolution. We further note that Cheryl
failed to prove any claim for expenses, because her statement
of expenses provided to the trial court was not received into
evidence and does not appear in our record.
Moreover, it is clear the court awarded Cheryl vehicles
owned by the corporation, not litigation expenses. A court may
have subject matter jurisdiction in a matter over a certain class
of case, but it may nonetheless lack the authority to address
a particular question or grant the particular relief requested. 16
Under the statutory procedure established by the Legislature
for election-to-purchase proceedings under § 21-2,201, dis-
cussed above, a corporation does not become a party to the
proceedings until it files an election to purchase. A & R
did not file an election to purchase and was not a party to
the election-to-purchase proceedings. Consequently, the court
lacked the authority to award corporate assets to Cheryl. The
award of the corporate vehicles is therefore vacated.
CONCLUSION
For the foregoing reasons, we vacate the judgment entered
against A & R and the award of vehicles to Cheryl. We other-
wise affirm the judgment entered against Rafert.
Affirmed in part, and in part vacated.
Heavican, C.J., not participating.
16
See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73,
894 N.W.2d 221 (2017).