Levine v. Bess Eaton Donut Flour Co., Inc.
| Decision Date | 15 January 1998 |
| Docket Number | No. 96-322--A,96-322--A |
| Parties | Michael LEVINE, Trustee, v. BESS EATON DONUT FLOUR CO., INC. ppeal. |
| Court | Rhode Island Supreme Court |
Thomas S. Hemmendinger, Providence, for Plaintiff.
Allan M. Shine, Melissa M. Horne, Providence, for Defendant.
Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.
This case came before the Supreme Court on December 1, 1997, pursuant to an order that directed the plaintiff, Michael Levine, in his capacity as trustee, to show cause why the issues raised by this appeal should not be summarily decided. The plaintiff has appealed a Superior Court judgment dismissing his petition to appoint a receiver or a trustee of the defendant, Bess Eaton Donut Flour Co., Inc.
After hearing the arguments of counsel and reviewing the memoranda filed by the parties, we conclude that cause has not been shown and that, therefore, the case will be decided at this time.
The defendant is a Connecticut corporation that operates a chain of doughnut shops in Massachusetts, Connecticut, and Rhode Island. Louis A. Gencarelli, Sr. (Louis), is defendant's president and chief executive officer who owns 50.1 percent of the corporation's voting stock and approximately 11 percent of its nonvoting stock. The plaintiff was appointed successor trustee of the Gencarelli Family Trusts (trusts) in 1990. The trusts hold approximately 35.3 percent of defendant's voting stock and 74 percent of its nonvoting stock.
In his "Petition for the Appointment of a Custodial Receiver or Trustee" (petition), plaintiff alleged that Louis had misappropriated corporate funds for his personal use, engaged in self-dealing, and wasted corporate assets. In filing the petition, plaintiff argued that pursuant to G.L.1956 § 7-1.1-97.1, the Superior Court had jurisdiction to appoint a receiver for those assets of a foreign corporation that are located in Rhode Island. The plaintiff further asserted that he was not seeking liquidation of the corporation. The defendant argued that the appointment of a receiver was an extraordinary remedy and not warranted in this instance.
At a hearing held on April 26, 1996, the trial justice, at defendant's suggestion and over plaintiff's objection, directed the parties to proceed by presenting oral arguments in support of or in opposition to the appointment of a receiver. In proceeding with argument first, the trial justice assured the parties that her ruling in this respect was without prejudice to any request for a later evidentiary hearing. The plaintiff's claim that the trial justice abused her discretion in so proceeding is without merit. Following the presentation of arguments by the parties, the trial justice denied and dismissed plaintiff's petition on the basis that "section 7-1.1-97.1 contemplates the filing of a petition for dissolution by shareholders or creditors under section 7-1.1-90 prior to the invocation of its provisions." She reasoned that because a petition for dissolution had not been filed and a showing that liquidation would not be appropriate had not been made, the court lacked authority under § 7-1.1-97.1 to appoint a receiver. Judgment was entered on May 1, 1996, wherein plaintiff's petition was "dismissed, without prejudice, for lack of jurisdiction." The plaintiff timely appealed to this Court, contending that the trial justice had misinterpreted the applicable statutes and thereby erred as a matter of law in ruling that the Superior Court did not have jurisdiction to appoint a receiver or a trustee in the instant case.
This Court engages in a de novo review of a plaintiff's claim that a trial justice misinterpreted the applicable statutes. City of East Providence v. Public Utilities Commission, 566 A.2d 1305, 1307 (R.I.1989). Moreover, it is well established that "when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). In examining the relevant statutes, we observe that § 7-1.1-97.1 provides:
"Upon the establishment of any of the grounds for liquidation of the assets and business of (1) a domestic corporation or (2) a foreign corporation, to the extent the foreign corporation has assets within the state, set forth in § 7-1.1-90, and upon the establishment that the liquidation would not be appropriate, the superior court shall have full power to appoint a receiver, with such powers and duties as the court, from time to time, may direct." (Emphases added.)
(1) In an action by a shareholder when it is established that, whether or not the corporate business has been or could be operated at a profit, dissolution would be beneficial to the shareholders because:
* * *
(B) The acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent; or
* * *
(D) The corporate assets are being misapplied or are in danger of being wasted or lost." (Emphases added.)
A plain reading of the statutes reveals that, contrary to the trial justice's determination the Superior Court's authority under § 7-1.1-97.1 to appoint a receiver is not contingent upon the filing of a petition for dissolution by shareholders. Section 7-1.1-90 is explicit on its face in requiring that a shareholder seeking the liquidation of a corporation must establish that "dissolution would be beneficial" to him or her; the statute does not require that a petition for dissolution be filed before a shareholder may petition the court to appoint a receiver under § 7-1.1-97.1. We hold that the trial justice erred in finding to the contrary because the statutes clearly grant to the Superior Court "full power to appoint a receiver" for the defendant's Rhode Island assets. 1
Notwithstanding the trial justice's error in finding that she lacked jurisdiction pursuant to § 7-1.1-97.1 to appoint a receiver, we...
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