Grip v. Buffelen Woodworking Co., 39949

• Decision Date: 21 February 1968
• Docket Number: No. 39949,39949
• Citation: 73 Wn.2d 219,437 P.2d 915
• Court: Washington Supreme Court
• Parties: William R. GRIP, Appellant, v. BUFFELEN WOODWORKING COMPANY and Ralph Dickman, Paul Duncan, Dwight Fronsman, Robert Fuhrman, Roy McGinn, Art Nickelson, Orville Olson and Orville Ose, Directors of Buffelen Woodworking Company, Respondents.

Page 219

73 Wn.2d 219

437 P.2d 915

William R. GRIP, Appellant, v. BUFFELEN WOODWORKING COMPANY and Ralph Dickman, Paul Duncan Dwight Fronsman, Robert Fuhrman, Roy McGinn, Art Nickelson Orville Olson and Orville Ose, Directors of Buffelen Woodworking Company, Respondents.

No. 39949.

Supreme Court of Washington, Department 2.

Feb. 21, 1968.

Jack E. Tanner, Tacoma, for appellant.

Conrad, Kane & Vandeberg, Elvin J. Vandeberg, Tacoma, for respondents.

WARD, Judge. ^*

The plaintiff, William R. Grip, brought this action against the corporate defendant, Buffelen Woodworking Company, and against eight of its board of directors. He prayed for the following relief:

WHEREFORE, the petitioner prays that an order be entered directing the Clerk of the above entitled Court to issue an alternate writ of mandate to each of the above named defendants directing them to immediately make available to the petitioner the position on the Board of Directors to which he was duly and regularly elected to on June 3, 1967, or to appear and show cause why such has not been done, and the petitioner further prays that the order require the service upon each of the defendants a copy of this petition together with the supporting affidavit.

In his petition, the plaintiff claimed that he was elected as one of the directors of the corporation at its annual stockholders' meeting on June 3, 1967, but has been denied the position by the defendants.

The facts were virtually undisputed, and no assignment of error is based on the court's findings of fact. The material findings are that at the stockholders' annual meeting, nine directors were to be elected. However, only eight were elected and '(t)he plaintiff and one Ed Richards tied for ninth place each receiving 248 votes.'

The plaintiff implies that there was irregularity in the canvassing of the election returns. It is true that the first count of the ballots showed that plaintiff had received 248 votes and that Ed Richards had received 247 votes. However, the evidence established without contradiction that on the Monday following the election, June 5, 1967, the ballot committee met and made a complete and careful recanvass of the ballots, and found errors in the number of ballots cast for three of the directors as reported on the first count on the day of the election. One of the errors, when corrected, resulted in the tie vote between plaintiff and Ed Richards. The evidence showed that due care had been taken to avoid tampering with the ballots between the time of the preliminary canvass on Saturday and the recanvass on Monday. The ballot box, with the votes inside, was locked by the chairman of the ballot committee and kept in the company vault until reopened by the ballot committee on Monday. The ballots, after recanvass, were then turned over to the company's certified public accountant who made an independent audit and confirmed the tie vote for the position of ninth director.

The practice of having a preliminary canvass on the day of the election and a more careful recanvass of the ballots by the election committee on the following Monday was not an innovation resorted to for this particular election. There was undisputed evidence that this had been the established practice at each annual election since 1955. The ballots were recanvassed so as to be able to make a more careful count, free from the confusion of the annual meeting. The recount showed a total of 3,879 votes cast for directors upon 431 ballots. No bylaw of the corporation provided for the recanvass of the ballots, but the trial court, in his oral memorandum, said:

Certainly it would be the opinion of the Court that the By-Laws did not require any certain methods of counting shareholders votes, and it would seem to the Court that a recount by the Ballot Committee, and particularly by an accountant to whom it was turned over, these ballots would constitute the fairest and best methods in determining just exactly what did the shareholders vote for, and who did they vote for.

On the court's finding that the election resulted in a tie vote for the ninth position, the writ was dismissed.

Petitioner makes two assignments of error: '1. The trial court erred in refusing to grant appellant a Writ of Mandamus. 2. The trial court erred in dismissing appellant's petition.'

It is the petitioner's position that the election results first announced on the date of the annual meeting, must be accepted as final and determinative of his right to the office of director. This claim is based on RCW 23.01.280(3), a portion of the former Business Corporations Act, which required that any meeting at which directors are to be elected 'shall be adjourned only from day to day until such directors have been elected.' He maintains that the recount procedure, used in determining the election results, violated this statutory provision and the final count was therefore a nullity.

We do not agree. A recount of votes after adjournment cannot be considered violative of the statute. The recount was a ministerial act only, resorted to for the purpose of establishing accurately the results of the election. It was not an election.

The court's determination expressed in the order dismissing the alternative writ of mandamus, was predicated on finding of fact No. 4, reading as follows: 'Ralph Dickman, Paul Duncan, Dwight Fronsman, Robert Fuhrman, Roy McGinn, Art Nickelson, Orville Olson and Orville Ose were the eight candidates who received the highest number of votes. The plaintiff and one Ed Richards tied for ninth place each receiving 248 votes.'

If this finding of fact is correct, we may not set aside the trial court's determination that the petitioner is not entitled to the position of director of the corporation. We are not, on the record before us, permitted to review the correctness of finding of fact No. 4. An appellate review of the correctness of findings of fact made by the trial court may be had only when Rule on Appeal 43, RCW vol. 0 has been complied with. ¹ In re State's Appeal, 60 Wash.2d 380, 374 P.2d 171 (1962); Rutter v. Rutter, 59 Wash.2d 781, 370 P.2d 862 (1962).

The petitioner did not comply with either facet of this rule. He neither assigned error to finding No. 4 nor did his brief set out the finding he now seeks to challenge. We must therefore accept as true the court's determination that the petitioner tied with Ed Richards. There being such tie vote, the petitioner is not entitled to a writ of mandamus putting him in office as a director.

In oral argument, the plaintiff urged that this court review and set aside the action taken by eight members of the board of directors of the defendant corporation at a meeting of the board held on June 12, 1967. This action of the board is reflected in finding No. 5 and conclusion of law No. 2. Finding of fact No. 5 stated: 'On June 12, 1967, one Norman O. Cruver was appointed to the ninth position on the Board of Directors of Buffelen Woodworking Company.' Conclusion of law No. 2 stated: 'The...