Brookshire v. Adcock
| Decision Date | 16 April 2009 |
| Docket Number | No. 08-119.,08-119. |
| Parties | Ann Warmack BROOKSHIRE, et al., Appellants, v. Robert H. ADCOCK, et al., Appellees. |
| Court | Arkansas Supreme Court |
Eichenbaum, Liles & Heister, P.A., by: Christopher O. Parker, Little Rock; and Warner, Smith & Harris, PLC, by: P.K. Holmes, III, Fort Smith, for appellants.
Dover Dixon Horne, PLLC, by: Mark H. Allison and Garland W. Binns, Jr., Little Rock, for appellees.
This court granted two petitions for review of the court of appeals' decision in Brookshire v. Adcock, 101 Ark.App. 134, 270 S.W.3d 879 (2008). The petitions, filed by then-Bank Commissioner Robert Adcock, Jr. and separate appellees Farmers Bank of Greenwood and Wilkinson Banking Corporation (appellees), assert that the court of appeals erred in reversing the Bank Commissioner's decision to deny interest to the appellants—dissenting shareholders in Farmers Bank (appellants)—for the period of time between the approval of a plan of exchange of shares and the final valuation of the shares by the statutory appraisal procedure. At issue is whether Ark.Code Ann. § 23-48-603 allows the Bank Commissioner to award interest in such cases, even though the express language of the statute does not specifically provide for such award. We affirm the Commissioner's decision.
The underlying dispute in this case began when Farmers Bank announced it would put forth a plan of exchange at a stockholders' meeting. The proposed plan of exchange provided for Wilkinson Banking Corporation to acquire all shares in Farmers Bank that it did not already own, at $5,600 per share.1 The majority of shareholders approved the plan of exchange, by a margin of 93.5% to 6%, and the Bank Commissioner approved the plan on September 30, 2003. As dissenting minority shareholders, the appellants disputed the tendered value for their minority shares, and ultimately requested that the Commissioner initiate an appraisal of the shares as provided by § 23-48-603(b)(3). Following the appraisal, the Commissioner issued a letter to the parties on May 16, 2005, fixing the final value of the dissenters' shares at $7,270.00 per share.2 Additionally, the Commissioner made the following determination:
Dissenting shareholders' counsel has made an additional request for the Bank Commissioner to award interest from the end of September 2003, the date the dissenters ceased to be shareholders, through the date the final valuation is paid at a rate of six percent (6%). The issue of interest is not addressed in Ark.Code Ann. § 23-48-603; therefore, the statute does not authorize the Bank Commissioner to award interest in addition to the valuation. The statute requires the Bank Commissioner to cause an appraisal to be made to determine the value of the shares only.
The appellants petitioned the Pulaski County Circuit Court to reverse the Commissioner's decision under the Arkansas Administrative Procedure Act (APA), Ark. Code Ann. §§ 25-15-201 to -218 (Repl. 2002 & Supp.2007), arguing that the Commissioner's denial of interest was:
made in violation of constitutional or statutory provisions; in excess of the agency's statutory authority; made upon unlawful procedure; affected by other error or law; not supported by substantial evidence of record; and arbitrary, capricious, or characterized by abuse of discretion.
Alternatively, the appellants petitioned the circuit court for a writ of mandamus and/or writ of certiorari. On March 14, 2007, the circuit court issued an order dismissing the appellants' complaint. Upholding the Commissioner's decision, the circuit court stated as follows:
The statute at issue, Ark.Code Ann. § 23-48-603, does not provide for an award of interest in a proceeding to establish the value of dissenting stockholders' shares. This Court may not read into the statute a requirement that is not there. Because this is a proceeding under the APA to review the Bank Commissioner's decision, the Court cannot say that the Commissioner was wrong in his reading and interpretation of his authority under the statute. Because the statute does not authorize the award of interest in an appraisal proceeding, and because the Bank Commissioner's interpretation of the statute is not clearly wrong, the standard of review necessary to modify or reverse the Bank Commissioner's decision under the APA has not been met.
Upon review, the court of appeals reversed the Commissioner's decision that the minority stockholders were not entitled to interest on the value of their shares for the period between the approval of the plan of exchange until the final valuation of the shares. The court of appeals relied on Fitzgerald v. Investors Preferred Life Ins. Co., 258 Ark. 966, 530 S.W.2d 195 (1976), where this court held that dissenting stockholders involved in a merger of two life insurance companies were entitled to interest from the period between the merger until the final valuation of the shares by a court judgment. Although Fitzgerald involved a different statute than the one at issue in this case, the court of appeals held that, "as in Fitzgerald, `simple justice' requires that appellants be awarded interest on the value of their stock during the delay in valuation." Brookshire, supra, 101 Ark.App. at 138, 270 S.W.3d at 882.
The appellees argue in their petitions for review that the court of appeals failed to defer to an administrative agency's interpretation of statutory provision, and that it erred by interpreting an unambiguous statute, rather than giving the statutory language its plain and ordinary meaning. When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. See, e.g., Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).
Judicial review of the Bank Commissioner's decision is governed by the APA. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). The appellate court's review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Collie v. Ark. State Med. Bd., 370 Ark. 180, 258 S.W.3d 367 (2007); Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005). Judicial review of administrative decisions is limited in scope. Williams v. Ark. State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). The APA provides that a reviewing court may reverse or modify the agency's decision if the decision: (1) violates the constitution or a statute; (2) exceeds the agency's statutory authority; (3) is affected by an error of law; (4) is procedurally unlawful; (5) is unsupported by substantial evidence in the record; or (6) is arbitrary, capricious or is an abuse of discretion. Ark.Code Ann. § 25-15-212(h); Arkansas Dep't of Correction v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).
This appeal involves a question of first impression: does § 23-48-603 allow the Banking Commissioner to award interest to dissenting shareholders for the period between the date the surviving bank tenders an offer of the fair value of the shares, until the final determination of the value of the shares after the appraisal process? In another case requiring a first-impression interpretation of a banking statute, Ford v. Keith, supra, this court discussed the applicable rules of statutory construction as follows:
The basic rule of statutory construction is to give effect to the intent of the legislature. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be giving to every word in the statute if possible. The construction of a state statute by an administrative agency is not overturned unless it is clearly wrong. Ordinarily, agency interpretations of statutes are afforded great deference, even though they are not binding. However, although an agency's interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute.
(Internal citations omitted.)
Arkansas Code Annotated §§ 23-48-601 to -605 (Repl.2000 & Supp.2007) address bank reorganization through the adoption of a plan of exchange of shares of the banks' outstanding capital stock held by stockholders. The bank holding company that acquires the outstanding shares must provide consideration for the shares under the provisions of the subchapter. Id. § 23-48-601(a)(1). Minority shareholders may dissent to the plan of exchange by providing a written demand for payment of the value of their shares within ten days, among other requirements. Id. § 23-48-603(a)(1). Upon receipt of the written demand, the bank must make a cash offer for the fair market value of the dissenter's shares. Id. § 23-48-603(a)(3)(B). The dissenting shareholder can either accept the tendered amount, § 23-48-603(a)(4), or proceed with an appraisal process in which three appraisers are selected, § 23-48-603(b)(1). Pertinent here, if appraisers are not selected by the parties as provided by § 23-48-603(b)(1), the dissenters can make a written request for the Commissioner to cause a reappraisal to be made, "which shall be final and binding upon all parties." Id. § 23-48-603(b)(3).
As noted by the Commissioner in his decision, the General Assembly did not include a provision in § 23-48-603 to award interest to...
To continue reading
Request your trial
-
Menne v. State
...for review. When this court grants review, we do so as if the matter had been originally appealed to this court. Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22. In reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of t......
-
Myers v. Yamato Kogyo Co.
...cases, we omitted the de novo standard and announced only the deferential "clearly wrong" review. See, e.g. , Brookshire v. Adcock , 2009 Ark. 207, at 11, 307 S.W.3d 22, 29. Even more concerning is the risk of giving core judicial powers to executive agencies in violation of the constitutio......
-
Archer v. Sigma Tau Gamma Alpha Epsilon, Inc.
...it is elementary that when interpreting the language in a statute, we give effect to the intent of the legislature. See Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of ......
-
Hinojosa v. State Of Ark.
...of a decision by the court of appeals, it reviews the case as though it had originally been filed with this court. Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22. In reviewing a circuit court's denial of a motion to suppress evidence, the appellate court conducts a de novo review based ......