Ramco Operating Co. v. Gassett

SUMMERS, Justice.

The RAMCO companies ask us to prohibit enforcement of a District Court order requiring RAMCO to open up its corporate books and records. We assume original jurisdiction and grant the writ of prohibition as sought. Okla. Const. Art. VII § 4.

A New York court rendered a judgment in excess of three million dollars in favor of U.S. Trust and against Robert E. Yaw. Yaw is one of four shareholders of RAMCO. Pursuant to Yaw’s pledge of RAMCO stock to U.S. Trust the latter has possession of Yaw’s certificates of RAMCO stock.

U.S. Trust brought its judgment to the District Court of Tulsa County. See 12 O.S. 1991 §§ 719-726, Uniform Enforcement of Foreign Judgments Act. U.S. Trust entered into an agreement with Dynamic Energy Sources, Inc. (Dynamic) whereby Dynamic agreed to purchase Yaw’s stock from U.S. Trust. Dynamic requested U.S. Trust to have a subpoena duces tecum issued requiring RAMCO to produce its books and records, including the copies of reserve studies relating to mineral properties owned or leased by the RAMCO Companies. U.S. Trust relied upon 12 O.S.1991 § 848 ¹ and a subpoena duces tecum was issued requiring RAMCO, as a non-party witness, to produce those records sought by Dynamic.

RAMCO claims that Dynamic is a competitor, and that release of its corporate books and records, particularly the reserve reports, will damage RAMCO. Dynamic claims it is not a competitor, and has agreed not to release the RAMCO information to others. RAMCO provided audited financial statements on the companies, but declined to provide other records, particularly the copies of reserve studies.² Additionally, in response to a garnishment summons RAMCO stated that it was not indebted to Yaw and that it had no property of Yaw. No claim has been made that Yaw directed the fiscal affairs of RAM-CO or commingled his personal assets with those of the corporation. The trial court required RAMCO to produce the corporate records, precipitating this application for a writ.

The New York judgment is not in the record before us. The parties state that it is for money in the amount of $3,208,400.67. None of the parties have claimed that the judgment ordered the sale of the stock, and no special execution or attachment on the stock has issued from the Tulsa County proceeding. See 12 O.S.1991 §§ 732, 841, 902.³ The proceeding in the trial court is not for the purpose of a public judicial sale of the property.⁴ U.S. Trust states that it “is attempting to execute upon Yaw’s interests in RAMCO by selling Yaw stock which is in U.S. Trust’s possession.”

U.S. Trust does not cite or rely upon any provision of the Uniform Commercial Code for its discovery of the records. It relies, basically, upon its status as a pledgee of the stock, and asserts that it should have the same inspection rights as a stockholder.

Our statutes clearly recognize that a “shareholder of record” may seek certain corporate records. 18 O.S.1991 § 1065(A). The inspection must be for a proper purpose. Id. at § 1065(C)(2)(b). The purpose must be “reasonably related to such person’s interest as a shareholder.” Id. at § 1065(B). If access is denied after the statutory procedure for access has been followed a shareholder of record may apply to the District Court for an order to compel inspection. Section 1065, however, confers no right to a pledgee for inspection of the corporate records. In Hoover v. Fox Rig & Lumber Co., 199 Okla. 672, 189 P.2d 929, 932 (1948) we said that a statutory right to inspect is an incident of stock ownership.

Does U.S. Trust, as a pledgee, have a common law right to inspect the corporate records? We conclude it does not. At common law a stockholder was entitled to inspect the books of a corporation.⁵ The right of inspection was limited to certain records, and courts did not approve of a general request to inspect all records.⁶ Statutes were later adopted to include and enlarge upon the common law inspection rights.⁷ The right of inspection was personal to the stockholder, and was exercised by that person or an agent acting for the stockholder.⁸ At common law when a pledgee acquired the stock and became a stockholder the pledgee/stockholder’s request to inspect the books to determine the value of the stock for the purpose of sale was then deemed to be a proper purpose for inspection.⁹ But U.S. Trust does not seek inspection as a stockholder, merely as a pledgee.

U.S. Trust cites to an encyclopedia for the proposition that a pledgee has a common law inspection right to the corporate records. That encyclopedia, in addition to noting the authority to the contrary, relies upon two opinions. In re Citizens’ Savings & Trust Co., 156 Wis. 277,145 N.W. 646 (1914); Newcomer v. Miller, 166 Md. 675, 172 A. 242 (1934). Neither of these opinions supports a rule as urged by U.S. Trust.¹⁰

The authority to the contrary, In re Brooklyn First Nat. Bank, 28 Misc. 662, 59 N.Y.S. 1042, affirmed, 44 A.D. 635, 60 N.Y.S. 1138 (1899), declined to recognize an inspection right in a pledgee. Brooklyn First Nat. Bank is a case where a bank, as pledgee, applied to a corporation to be allowed to examine its books to ascertain the value of the pledged stock. When the corporation refused the bank sought mandamus to compel the production. In denying the writ the court explained that the pledgee/bank was not a stockholder, and not subject to the benefits or responsibilities of a stockholder. Id. 59 N.Y.S. at 1043. the court then said: “It is true that the pledging of the stock conferred upon the bank, as pledgee, certain legal and equitable rights, but the one invoked is not among them.” Id. U.S. Trust has no common law right, as pledgee, to inspect and audit RAMCO’s books and records for the purpose of an independent valuation of the stock.

U.S. Trust also relies upon 12 O.S.1991 § 848 and related statutory authority for proceedings in aid of execution. Property of a judgment debtor is subject to the payment of a judgment. 12 O.S.1991 § 841. A judgment debtor may be compelled to answer concerning the debtor’s property, and upon the discovery of property of the debtor “such proceedings as provided by law may be had for the application of such property toward the satisfaction of said judgment.” 12 O.S. 1991 § 842. Witnesses may be called to testify concerning the property of the debtor. 12 O.S.1991 § 848.

The ultimate purpose of these procedures is to effect the application of a judgment debtor’s property to a judgment. 12 O.S. 1991 §§ 841, et seq. Whether a witness possesses property of the debtor or owes property to the debtor are relevant inquiries pursuant to § 850. Stone v. Coleman, 557 P.2d 904 (Okla.1976). We have observed that § 848 is a trial procedure and not for the purpose of discovery. Stone v. Coleman, 557 P.2d at 905.

In a § 850 proceeding U.S. Trust may compel a witness to produce relevant and admissible evidence as measured by its claim against Yaw. Stone v. Coleman, 557 P.2d at 906. RAMCO, as witness, provided an audited financial report. No claim has been made that this report does not give a value on the stock as determined by RAM-CO. U.S. Trust cannot require that it be provided sufficient corporate records to perform its own audit of the corporation and determine for itself what the value of the stock is. U.S. Trust can require RAMCO to say what the value of the stock is according to the corporate books or records of RAM-CO.

The trial court, by its order of November 15,1994, required of RAMCO the production of: 1. any and all shareholder or board resolutions of the companies; 2. any and all board or shareholder consent actions for the companies; 3. any and all minutes of board or shareholder meetings of the companies; 4. copies of any reserve studies relating to the property owned or leased by the companies; and 5. information regarding accounts payable and accounts receivable for the companies. The order included all subsidiaries and affiliates. It exceeds the relevant inquiry a creditor may make of a non-party’s records in a § 850 proceeding, and thus, prohibition may properly issue. Jones Packing Company v. Caldwell, 510 P.2d 683 (Okla.1973); Stone v. Coleman, 557 P.2d 904 (Okla.1976).

On the eve of this opinion’s adoption the parties advise that the stock has now been sold by U.S. Trust, and they jointly move that the action be dismissed as moot. We note that the joint motion to dismiss asks for remand with directions that the trial court vacate its order, which would be consistent with the result reached by us. We decline to dismiss, believing our opinion may provide guidance should the problem arise in the future. Let the writ issue prohibiting the respondent, or any other assigned judge in the cause, from enforcement of the order of November 15, 1994.

WILSON, C.J., and HODGES, LAVENDER, HARGRAVE, SUMMERS and WATT, JJ., concur. KAUGER, V.C.J., and SIMMS and OPALA, JJ., dissent.

1 . 12 O.S.1991 § 848:

Witnesses may be required, upon the order of the judge, to appear and testify upon any proceedings herein provided in the same manner as upon the trial of an issue.

2 . The record indicates that a corporate document, or a portion thereof, has been, or will be, made available to U.S. Trust which reflects the value of the stock as determined by RAMCO.

3 . See 12 O.S.1991 § 732, (defining three types of executions); 12 O.S.1991 § 841, (any non-exempt interest of judgment debtor is subject to payment of judgment); 12 O.S.1991 § 902, (when judgment is not for the recovery of money or real property it may be enforced by attachment).

4 . Judicial application of a debtor’s goods, chattels, and real property to a judgment is effectuated by a public sale. See 12 O.S.1991 § 757, (sale of goods and chattels by public sale); 12 O.S.1991 § 764 (public notice of sale of realty); Okmulgee Motor Sales Co. v. Prentice, 371 P.2d 723, 726 (Okla. 1962), (debtors have a right to have a judicial sale made as advertised). Cf. Goldsby v. Juricek, 403 P.2d 454 (Okla.1965), (constructive trust created when unlawful transaction requiring withdrawal of bid depressed the amount received in judicial sale). Private sales are authorized in several contexts. See e.g., Cate v. Archon Oil Co., Inc., 695 P.2d 1352, 1355 (Okla.1985), (comparing private sales pursuant to Uniform Commercial Code and public sales pursuant to 12 O.S.1981 §§ 757, 764); 58 O.S. 1991 § 388, (private sale of personalty by executor or administrator); 30 O.S.1991 §§ 4-762, 4-764 (private sale of property of ward).

5 . Lewis v. Brainerd, 53 Vt. 519, 521-522 (1881); Stone v. Kellogg, 165 Ill. 192, 46 N.E. 222 (1896); Otis-Hidden Co. v. Scheirich, 187 Ky. 423, 219 S.W. 191, 194 (1920); Bank of Heflin v. Miles, 294 Ala. 462, 318 So.2d 697, 700 (1975).

6 . Rex v. Tailors’ Company, [1831] 2 Barn. & Adol. 115, 109 E.R. 1086; Rex v. Babb, [1790] 3 T.R. 579, 100 E.R. 743; Mutter v. Eastern and Midlands Railway, [1888] 38 Ch.D. 92, 106; In re Steinway, 159 N.Y. 250, 53 N.E. 1103, 1106 (1899).

7 . Doggett v. North American Life Ins. Co., 396 Ill. 354, 71 N.E.2d 686, 688 (1947); (explained common law limitations of time, place, and purpose of inspection); State ex rel. McClure v. Malleable Iron Range Co., 177 Wis. 582, 187 N.W. 646, 647 (1922), (statutes allowing inspection of corporate records enlarged the common law right and stockholder inspections are statutorily authorized in more circumstances); Foster v. White, 86 Ala. 467, 6 So. 88 (1889), (same); Pfirman v. Success Mining Company, 30 Idaho 468, 166 P. 216, 218 (1917), (statutes were designed to adopt and extend the common law rule); In re Steinway, 159 N.Y. 250, 53 N.E. 1103, 1106-1107 (1899), (same).

8 . At the beginning of this century one author explained the stockholder’s inspection rights of corporate books under the common law and the then recently enacted statutes. William Clark, Handbook on the Law of Private Corporations, 325-328 (F. Tiffany 2d ed. 1907). The author explained that the person demanding access to the records must be the stockholder, or an agent acting for the stockholder, at 325, 327-328, citing, State ex rel. Bulkey v. Whited & Wheless, 104 La. 125, 28 So. 922 (1900), (non-stockholder could not claim right to inspect books); Foster v. White, 86 Ala. 467, 6 So. 88 (1889), (right of inspection is personal in the sense that only stockholder may exercise the right); Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 56 N.E. 1033 (the right is personal to the stockholder and stockholder’s agent may inspect books); State ex rel. Burke v. Citizens Bank, 51 La.Ann. 426, 25 So. 318 (1899), (executrix protecting interests of deceased stockholder may inspect books). See also State ex rel. O'Hara v. National Biscuit Co., 69 N.J.Law 198, 54 A. 241, 242 (1903), (right given to stockholders); In re Steinway, 159 N.Y. 250, 53 N.E. 1103 (1899), (same).

9 . State ex rel. Brumley v. Jessup & Moore Paper Co., 1 Boyce (Del.) 379, 77 A. 16 (1910).

10 . The Wisconsin one-paragraph opinion, In re Citizens’ Savings & Trust Co., 156 Wis. 277, 145 N.W. 646 (1914), states that a bank holding shares endorsed to the bank could inspect the corporate books in the custody of the banking commissioner liquidating the corporation. The Wisconsin court later explained its holding in Citizens’ by stating it held therein that a stockholder is entitled to examine the books of a corporation. State ex rel. McClure v. Malleable Iron Range Co., 177 Wis. 582, 187 N.W. 646, 647 (1922). In Newcomer v. Miller, 166 Md. 675, 172 A. 242 (1934) the pledgee bought all of the stock at a sale upon foreclosure and then sought to inspect the corporate books in the custody of the court and held by a receiver. The court explained that the pledgees became owners of all of the stock and could inspect the books. Id. 172 A. at 243. The Maryland court did not recognize an inspection right based upon pledgee status.