Hall v. Hall

• Decision Date: 04 February 1974
• Docket Number: No. KCD,KCD
• Citation: 506 S.W.2d 42
• Parties: Margaret L. HALL, Individually and as Executrix of the Estate of Edward H. Hall, Appellant, v. Harry L. HALL et al., Respondents. 26131.
• Court: Missouri Court of Appeals

Page 42

506 S.W.2d 42

Margaret L. HALL, Individually and as Executrix of the Estate of Edward H. Hall, Appellant, v. Harry L. HALL et al., Respondents.

No. KCD 26131.

Missouri Court of Appeals, Kansas City District.

Feb. 4, 1974.

Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Thomas J. Wheatley, Maurice J. O'Sullivan, Jr., Kansas City, for appellant.

Slage & Bernard, Warren E. Slagle, Kansas City, for respondents.

Before DIXON, C.J., PRITCHARD and SOMERVILLE, JJ., and DONALD B. CLARK, Special Judge.

DONALD B. CLARK, Special Judge.

This action involves a dispute among shareholders in a closely held corporation. The facts are not in dispute.

Respondent Musselman and Hall Contractors, Inc. (hereafter the corporation) is a Missouri corporation, the corporate stock of which was wholly owned immediately prior to September 19, 1969 in equal proportions by Edward H. Hall and respondent Harry L. Hall. On the last mentioned date, Edward H. Hall died leaving his widow, appellant surviving him. Appellant thereafter succeeded to a fifty percent stock interest in the corporation in her representative capacity as the duly appointed and acting executrix of the estate of her deceased husband and is also interested as residuary devisee of the estate.

Prior to Edward Hall's death, he and respondent Harry Hall were the only directors of the corporation. Acting to fill the vacancy created by the death of Edward, respondent Harry Hall appointed his wife, respondent Florence E. Hall, as a director of the corporation and thereafter, acting as the then board of directors, they appointed themselves as president and vice-president of the corporation. To the date of the filing of this action, no further election of directors or officers has been held and the individual respondents have continued to serve as the only directors and officers of the corporation.

Upon the failure of the individual respondents to call or convene the required annual meeting of the corporation, appellant by written and published notice called an annual meeting for the second Tuesday in May, 1970, such being the date specified in the corporate by-laws. Appellant appeared at the registered office of the corporation to participate in the business of the meeting and to vote the shares held by her in her representative capacity, but respondent Harry Hall, the only other shareholder, failed and refused to attend. The equal division of stock requires the participation of both shareholders to achieve a quorum. Being unable to transact any business without the vote of the shares of the other stockholder, appellant has subsequently adjourned the 1970 annual meeting from week to week.

Subsequent to September 19, 1969, the individual respondents have been in practical control of the corporation. As no election of directors could be held, respondents have continued in office by reason of the failure to elect or qualify any successors. At a special meeting of directors held August 6, 1970, the individual respondents by resolution directed the offering and sale of 3000 shares of the capital stock of the corporation being the balance of authorized but unissued stock. The purchase or offering price was set at $10.00 per share. Appellant indicated her desire and ability to exercise her preemptive right to purchase one-half of the additional stock so offered but contended that the stock issue would be invalid having been approved by directors unlawfully holding office.

In her petition to the court below, appellant sought to enjoin respondent Harry Hall from refusing to attend shareholders' meetings of the corporation, to enjoin the individual respondents from establishing a terminal date for exercise of preemptive purchase rights for the new issue and from continuing to act as directors and officers of the corporation pending a meeting of shareholders. On the motion of respondents asserting failure to state a cause of action, respondents' petition was dismissed and this appeal has resulted.

It is first necessary to dispose of respondents' motion to dismiss this appeal for failure to comply with Civil Rule 84.04(d), V.A.M.R. Respondents appropriately observe that appellant's alleged points of error do not by any latitude of construction advise this court wherein and why the rulings sought to be reviewed are erroneous. A mere statement such as 'The remedy of mandatory injunction is the most appropriate remedy' neither satisfies the rule nor preserves anything for review. Chambers v. Kansas City, 446 S.W.2d 833 (Mo.1969). In point of fact, the trial court found that injunction in this case was not the appropriate remedy. Adherence to the rule requires of appellant a concise statement of 'why' injunction is an available remedy which should have been employed here to afford relief to appellant. Freshour v. Schuerenberg, 495 S.W.2d 116, 118 (Mo.App.1973).

While appellant's failure adequately to state or preserve for review the points relied on justifies dismissal of the appeal as was ordered in Ackerman v. Clairtown Investors, Inc. et al., 495 S.W.2d 721 (Mo.App.1973) on similar facts and contentions, we do not here labor under the burden of an extensive record and, in the interests of meeting the controversy, will examine the issues as we deem them to exist.

The dismissal of appellant's petition was, by the trial court, in the nature of a summary judgment and, in...