GI Joe's, Inc. v. Nizam
| Court | Court of Appeals of Oregon |
| Writing for the Court | LINDER, J. |
| Citation | 183 Or. App. 116,50 P.3d 1282 |
| Decision Date | 31 July 2002 |
| Parties | G.I. JOE'S, INC., an Oregon corporation, Respondent, v. Jamil NIZAM, Appellant. |
50 P.3d 1282
183 Or. App. 116
v.
Jamil NIZAM, Appellant
CCV 99-03-185; A112653.
Court of Appeals of Oregon.
Argued and Submitted December 4, 2001.
Decided July 31, 2002.
David J. Sweeney, Portland, argued the cause for respondent. With him on the brief were Paul G. Dodds and Brownstein, Rask, Sweeney, Kerr, Grim, DeSylvia & Hay, LLP.
Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
LINDER, J.
Plaintiff G.I. Joe's, Inc. brought this judicial appraisal action to determine the fair value of defendant's stock after defendant exercised his right to dissent from a proposed merger. See ORS 60.551 to ORS 60.594. The central factual dispute at trial was the existence of certain stock options in favor of Norm Daniels, the president of G.I. Joe's. Plaintiff presented testimony from Daniels and others that, although certain merger documents omitted any reference to the options, that omission was inadvertent and the options did, in fact, exist. Defendant, relying exclusively on those merger documents, argued that the options did not exist and that, even if they did, Daniels was contractually precluded from exercising them. The trial court believed plaintiff's witnesses, concluded that the options did exist at the time of the merger, and valued defendant's shares accordingly. Defendant now appeals, arguing that the trial court erred in that conclusion. We affirm.
All shareholders were given the opportunity to redeem their shares. Before the redemption, Daniels owned 92,330 shares of G.I. Joe's stock. Daniels kept his shares as part of his plan to gain majority control of the company. Defendant and another shareholder (Lindquist) did not redeem their shares. At the end of the first stage of the transaction, therefore, Daniels, Lindquist, and defendant were the only remaining shareholders, with Daniels owning a majority of the outstanding shares. After acquiring majority ownership, Daniels formed N.D. Holdings, which then held Daniels's stock and the notes, thus completing the second stage of the transaction.
The third stage, when N.D. Holdings and G.I. Joe's merged into one company, required shareholder approval. Daniels and Lindquist voted in favor of the merger; defendant dissented. Thereafter, pursuant to ORS 60.554, plaintiff determined that the fair value of defendant's 18,720 shares plus accrued interest was $153,756.81; plaintiff then tendered that amount. Defendant countered by asserting that the fair value of his shares was $203.95 per share, for a total of $3,818,000.
In light of that dispute, plaintiff instituted this appraisal proceeding pursuant to ORS 60.591. That statute provides that, when a demand for payment pursuant to ORS 60.587 remains unsettled, the corporation "shall commence a proceeding" and petition the court "to determine the fair value of the shares and accrued interest." ORS 60.591(1). The court may then appoint an appraiser to assist in valuing the shares. ORS 60.591(4). Here, the court appointed Corporate Valuation, Inc. Because the parties could not agree about the existence of Daniels's stock options, Corporate Valuation prepared alternative appraisals, one including and the other disregarding Daniels's options.
The case then went to trial, where the central dispute was the existence of Daniels's options. Plaintiff presented testimony that the options existed at the time of the merger but that, through inadvertence, plaintiff's counsel failed to reference the options in any of the merger documents. Specifically, plaintiff's chief outside counsel testified that the options existed up to the point of the merger, although Daniels had agreed to surrender them at the time of the merger as part of his consideration for acquiring majority control of the company. The merger was a "rush job." While he was preparing for the merger, plaintiff's corporate counsel focused on how G.I. Joe's capital structure would look as of the effective date of the merger, not the date relevant to the fair value of defendant's shares, which was immediately before the merger.1 The merger documents therefore made no reference to Daniels's options, which were to disappear simultaneously with the completion of the merger. Plaintiff elicited similar testimony from G.I. Joe's chief financial officer, its accountant, and Daniels. The main thrust, then, of plaintiff's evidence was that the options existed as of the date relevant to determining the fair value of defendant's shares despite the fact that the merger documents did not reflect their existence.
Defendant did not present any witnesses to refute plaintiff's evidence. Rather, defendant's evidence consisted of a number of exhibits, most of which were the merger documents that failed to disclose Daniels's
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D.R. v. Three Affiliated Tribes Of Fort Berthold Reservation, J06073, J06096; Petition Numbers J0607301, J0609601; A143921.
...to examining the record to determine if there is any evidence to support the trial court's factual findings.” G.I. Joe's, Inc. v. Nizam, 183 Or.App. 116, 123, 50 P.3d 1282 (2002).236 Or.App. 542 Here, our review of the record confirms that we are bound by the relevant trial court findings, ......
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In the Matter of The Application For Delayed Registration of Birth of Jorge Garcia–eusiquio.Nicolaza Eusiquio v. State , 08C19393; A141109.
...relief sought,” to determine whether the legislature intended the claim to be legal or equitable in nature. G.I. Joe's, Inc. v. Nizam, 183 Or.App. 116, 122, 50 P.3d 1282 (2002); Hanzo v. deParrie, 152 Or.App. 525, 536, 953 P.2d 1130 (1998), rev. den., 328 Or. 418, 987 P.2d 512 (1999); see a......
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State v. Ventris
...see 183 Or.App. at 101 n. 1, 50 P.3d at 1275 n. 1. Even assuming, for the sake of argument, that the matter is cognizable, our discussion 50 P.3d 1282 above should dictate our answer: Defendant's failure to raise this issue in the course of the previous appeal forecloses him from raising it......
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Eusiquio v. State, 08C19393
...determine whether the legislature intended the claim to be legal or equitable in nature. G. I. Joe's, Inc. v. Nizam, 183 Or App 116, 122, 50 P3d 1282 (2002); Hanzo v. deParrie, 152 Or App 525, 536, 953 P2d 1130 (1998), rev den, 328 Or 418 (1999); see also Thompson v. Coughlin, 329 Or 630, 6......
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D.R. v. Three Affiliated Tribes Of Fort Berthold Reservation, J06073, J06096; Petition Numbers J0607301, J0609601; A143921.
...to examining the record to determine if there is any evidence to support the trial court's factual findings.” G.I. Joe's, Inc. v. Nizam, 183 Or.App. 116, 123, 50 P.3d 1282 (2002).236 Or.App. 542 Here, our review of the record confirms that we are bound by the relevant trial court findings, ......
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In the Matter of The Application For Delayed Registration of Birth of Jorge Garcia–eusiquio.Nicolaza Eusiquio v. State , 08C19393; A141109.
...relief sought,” to determine whether the legislature intended the claim to be legal or equitable in nature. G.I. Joe's, Inc. v. Nizam, 183 Or.App. 116, 122, 50 P.3d 1282 (2002); Hanzo v. deParrie, 152 Or.App. 525, 536, 953 P.2d 1130 (1998), rev. den., 328 Or. 418, 987 P.2d 512 (1999); see a......
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State v. Ventris
...see 183 Or.App. at 101 n. 1, 50 P.3d at 1275 n. 1. Even assuming, for the sake of argument, that the matter is cognizable, our discussion 50 P.3d 1282 above should dictate our answer: Defendant's failure to raise this issue in the course of the previous appeal forecloses him from raising it......
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Hill v. Gold, A172944
...unless there is no evidence to support that fact. Or Const, Article VII (Amended), § 3; ORS 19.415(1); see G. I. Joe's, Inc. v. Nizam, 183 Or.App. 116, 122, 50 P.3d 1282 (2002) (concluding that judicial appraisal proceedings are legal, rather than equitable, and applying the Article VII (Am......