Kahn v. Columbus Mills, Inc.

• Decision Date: 13 July 1988
• Docket Number: No. 76129,76129
• Citation: 188 Ga.App. 90,371 S.E.2d 908
• Parties: KAHN et al. v. COLUMBUS MILLS, INC. et al.
• Court: Georgia Court of Appeals

Page 908

371 S.E.2d 908

188 Ga.App. 90

KAHN et al. v. COLUMBUS MILLS, INC. et al.

No. 76129.

Court of Appeals of Georgia.

July 13, 1988.

Rehearing Denied July 28, 1988.

Certiorari Granted Oct. 18, 1988.

Thomas R. Burnside, Jr., James B. Wall, Augusta, for appellants.

Nolan C. Leake, David F. Goldenschuh, Frank C. Jones, Atlanta, for appellees.

SOGNIER, Judge.

Ruth Kahn, Donald Kahn, Alan Kahn and Thomas Kahn brought suit against Columbus Mills, Inc., and several individuals, including George Swift, who served on the board of directors of Columbus Mills, seeking damages for breach of fiduciary duties owed them by the directors in regard to a proposal made by Swift and entertained by the other directors to merge Columbus Mills, a publicly owned corporation, with Carpet Mill Store, Inc., a corporation privately owned by Swift and members of his family, including his daughter, defendant Joan Swift Conger. The Kahns also alleged that Swift was using his position as the beneficial owner of 33.8 percent of Columbus Mills stock to purchase Columbus Mills "for his own purposes" and to "enrich himself at the expense of and to the detriment of [Columbus Mills'] public shareholders." The Kahns asserted in their complaint that the proposed per share offer made by Carpet Mill Store and entertained by Columbus Mills' directors unfairly undervalued the stock in issue and was "so grossly unfair as to constitute a separate and aggravated breach of fiduciary duty." No certification was obtained for that part of the Kahns' complaint seeking to initiate a class action to enjoin the proposed merger and upon the trial court's denial of the application for injunctive relief, the merger took place and Columbus Mills ceased to exist as a separate entity. OCGA § 14-2-216(b)(2). Subsequently, the Kahns turned over their shares for the $43 per share price offered pursuant to the merger by the surviving corporation, Carpet Mill Store. The trial court granted the defendants' motion for summary judgment and the Kahns appeal.

Appellants contend the trial court erred by granting summary judgment to appellees because questions of fact exist regarding appellees' alleged breach of their fiduciary duties. Appellees argue that appellants, by surrendering their shares in exchange for the sell-out value offered by Carpet Mill Store, either released their cause of action or are estopped to assert it.

(1) We agree with appellants that the trial court erred by granting summary judgment to appellees insofar as the judgment was based on the issue of release. The document appellants executed when they surrendered their shares provided: "In connection with the merger ... of Columbus Mills, Inc., a Georgia corporation ..., with and into Carpet Mill Store, Inc., a Georgia corporation (the "Purchaser"), ... the undersigned [appellants] hereby surrenders for cancellation the above-described shares.... The undersigned hereby represents and warrants that the undersigned has full power and authority to sell, assign and transfer the Shares surrendered hereby and that the Purchaser will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claim...."

A release is subject to the same rules of construction as govern ordinary contracts in writing. See Thomaston v. Fort Wayne Pools, 181 Ga.App. 541(1), 352 S.E.2d 794 (1987). " ' "The language of the contract should be construed in its entirety, and should receive a reasonable construction, and not be extended beyond what is fairly within its terms. Where the language is unambiguous, and but one reasonable construction of the contract is possible, the court must expound it as made." [Cit.]' [Cit.]" Cutledge v. Aetna Life Ins. Co., 53 Ga.App. 473, 475, 186 S.E. 208 (1936). Construing the document in accordance with these principles, it appears that appellants delivered to Carpet Mill Store their shares in Columbus Mills free and clear of claims against the stock with no claims attached to the stock against the successor corporation. No reference is made to the individual director appellees; nothing in the document addresses appellants' suit for damages as a result of these appellees' alleged breach of their fiduciary duties; no language in the letter purports to constitute a release of the claims asserted by appellants in their complaint. Under no reasonable construction of the document can it be held that any of the parties intended it to be construed as a release of appellants' lawsuit or a surrender by appellants of their cause of action against appellees. Thus, we cannot agree with appellees that this document contained a release of appellants' claims against appellees for breach of their fiduciary duties as directors of Columbus Mills. Compare Lokas v. Greer, 169 Ga.App. 537, 313 S.E.2d 725 (1984); Bishop v. Intl. Paper Co., 173 Ga.App. 34, 325 S.E.2d 870 (1984).

(2) Extensive reference is made by both parties in their briefs before this court to OCGA § 14-2-251, which sets forth the procedure whereby a stockholder who is dissatisfied with certain corporate actions (as enumerated in OCGA § 14-2-250) can exercise his right to dissent and obtain relief by recovering the fair value of his shares. The record is uncontroverted that appellants did not enforce their dissenter's rights pursuant to this Code section. However, OCGA § 14-2-251(j) provides: "The enforcement by a shareholder of his right to receive payment for his shares in the manner provided in this Code section shall exclude the enforcement by such shareholder of any other right to which he might otherwise be entitled by virtue of share ownership, except [in two situations not applicable in the case sub judice.] If a shareholder does not enforce his dissenter's rights pursuant to this Code section ..., nothing in this Code section shall be construed as barring him from bringing or maintaining an appropriate action to obtain relief on the ground that the corporate action in question will be or is unlawful or fraudulent as to him." (Emphasis supplied.) Construing the clear and unambiguous language of subsection (j), see generally Mackey v. Lanier Collection Agency, 178 Ga.App. 467, 468-469(1), 343 S.E.2d 492 (1986); Georgia Institute of Technology v. Gore, 167 Ga.App. 359-360, 306 S.E.2d 338 (1983), in the absence of any enforcement by appellants of their dissenter's rights pursuant to OCGA § 14-2-251, the exclusiveness of the statutory remedy does not bar appellants from following the course of action they have selected in order to obtain the relief to which they allege they are entitled as a result of the claimed unlawful acts in issue here. See Comment (10), OCGA § 14-2-251.

(3) Appellees argue that notwithstanding the continued viability of a cause of action for breach of fiduciary duty outside of OCGA § 14-2-251, appellants' acceptance of the sell-out offer for their Columbus Mills stock rendered otherwise worthless by the merger estops appellants from asserting their cause of action against the directors of Columbus Mills. Appellees cite this court to cases referencing a long established equitable doctrine in Georgia law to the effect that a party who has accepted the benefits of a corporate act may not thereafter continue to challenge the validity of that act. This doctrine has been applied in cases in which the complaining party personally participated in the corporate act complained of, see Chalverus v. Wilson Mfg. Co., 212 Ga. 612, 613(4), 94 S.E.2d 736 (1956) (acting president); Claire v. Rue de Paris, Inc., 239 Ga. 191, 194, 236 S.E.2d 272 (1977) (director); Medlin v. Carpenter, 174 Ga.App. 50, 52(2), 329 S.E.2d 159 (1985) (president and member of board of directors); or where the complaining party knew fully of the decision at the time of its making, registered no complaint, acquiesced in the decision, then years later brought suit. See Alexander v. Searcy, 81 Ga. 536, 543-544, 8 S.E. 630 (1888) (7 or 15 year acquiescence); Bloodworth v. Bloodworth, 225 Ga. 379, 386-387, 169 S.E.2d 150 (1969) (10 year acquiescence); Comolli v. Comolli Granite Co., 233 Ga. 461(1), 211 S.E.2d 750 (1975) (acquiesced over 10 years).

In view of the facts in the case sub judice, we are not persuaded that the equitable doctrine above is applicable here. First, appellants were not directors or officers of Columbus Mills and had no influence on the proposed merger or its outcome. Second, at the time the merger was proposed, appellants did not remain silent and accept the $43 per share offer and then institute suit years after the fact. Rather, the evidence of record indicates that appellants, minority shareholders, consistently opposed the merger and instituted suit in an attempt to enjoin it as well as to call into issue the alleged breach of fiduciary duties which gave rise to the proposed merger. Only after appellants' efforts failed and Columbus Mills merged into Carpet Mill Store despite their opposition and in the face of their continuing legal action, did appellants turn in their shares of stock and accept the $43 per share sell-out price.

We cannot say as a matter of law that, with the merger a fait accompli, appellants were required to retain their worthless stock in Columbus Mills as a requisite to maintaining their ongoing suit against appellees. Rather, we agree with appellants that by accepting this protested payment for their otherwise valueless stock, they were not acquiescing in the merger or "accepting the benefit" of the merger but instead were following the mandate of OCGA § 51-12-11 by mitigating as far as was practicable the damages accruing as a result of appellees' alleged tortious breach of their fiduciary duty.

There is no Georgia law addressing the issue whether appellants' action constituted mitigation of damages or estoppel due to their acceptance of the benefits of the merger. One of the few cases from a foreign...