Long v. Norwood Hills Corp.

Decision Date08 October 1962
Docket NumberNo. 1,No. 49108,49108,1
Citation360 S.W.2d 593
PartiesCharles D. LONG, Plaintiff-Appellant, v. NORWOOD HILLS CORPORATION, Defendant-Respondent
CourtMissouri Supreme Court

Edward W. Fredrickson and John P. Montrey, St. Louis, for (plaintiff), appellant.

Leritz & Leritz, J. D. Leritz, J. L. Leritz, St. Louis, for (defendant), respondent.

Jesse E. Bishop and John B. Sharpe, St. Louis, for amicus curiae.

HOLMAN, Commissioner.

Plaintiff, the owner of 10 shares of stock in Norwood Hills Corporation, defendant herein, brought this suit seeking to dissolve said corporation and to have the assets thereof sold by a receiver to be appointed by the court, and the proceeds distributed according to law. Defendant was incorporated in 1933 under the laws of Missouri relating to business companies. It was and is plaintiff's theory that from the beginning the officers and directors have operated a country club and have devoted the assets of the corporation to the enjoyment of its members, have made no conscientious effort to operate the business in a manner that would produce a profit for the corporation, and that such conduct is illegal and fraudulent to the interests of the stockholders. A trial resulted in a judgment in favor of defendant and plaintiff has duly appealed. Since we have concluded that we do not have jurisdiction of this appeal a brief statement of the facts will be sufficient for the purpose of our discussion of the jurisdictional question.

For all practical purposes defendant was the successor to North Hills Country Club which had become insolvent. Defendant was authorized by its charter, among other things, to purchase, hold sell, and lease real estate, and 'to engage in the business of operating golf courses, clubhouses, swimming pools * * *.' There were 82 original subscribers, including plaintiff, each of whom paid $100 for one share of stock in the defendant corporation. The original bylaws provided that such stock could not be transferred on the books of the corporation until it had been offered for sale to the corporation for a period of 30 days at the price for which the stock was originally issued. Prior to the repeal of this bylaw in 1949 a number of the shareholders had sold their stock to the corporation with the result that the number of shares was reduced to 66.

Shortly after incorporation defendant purchased the personal property of North Hills from its receiver and entered into a lease of the real estate formerly occupied by North Hills, which lease contained an option to purchase said real estate. Since that time defendant has operated two golf courses, a clubhouse, swimming pool, and other facilities incident to such operations. Defendant has always operated a private country club but for a number of years it permitted outsiders to play on one of the golf courses upon payment of green fees.

In 1941 defendant exercised its option to purchase the 326 acres of land it had leased shortly after its incorporation. It has since sold approximately 15 acres but is still the owner of the remainder thereof.

Plaintiff was a member of Norwood Hills Country Club until 1941, at which time he joined another country club and discontinued his membership in Norwood. In May 1949 the stockholders adopted an amendment to the charter which provided for a stock split of ten shares for one--the new shares to have a par value of $100. The purpose of this stock split was said to be to increase the number of shares so that more members of the country club could become stockholders. Plaintiff, however, retained his 10 shares of stock. As the financial condition of the corporation improved the market value of these shares increased so that at trial time the reasonable market value was $386 a share, which was also the book value of the shares.

In January 1958, plaintiff's attorney appeared at the annual stockholders meeting of the corporation and before the board of directors and, in each instance, requested that the dues of members of the country club be increased, if necessary, and that the corporation be operated in a manner so as to provide funds for the payment of a dividend to the stockholders in an amount which would provide a reasonable return on the fair cash value of the corporate assets. Shortly thereafter, a voting trust was formed among a majority of the stockholders in order 'to preserve the corporation and to provide for the carrying out of its purpose to operate a country club.'

On October 31, 1959, the net worth of the corporation, according to its books was $240,815.24.

Plaintiff offered James P. Wilson as an expert witness on the question of the reasonable market value of defendant's real estate. On objection the court rule that such testimony was not admissible unless the market value was fixed upon the basis of the use of the land in the operation of golf courses. However, the witness was permitted to give his testimony, under Civil Rule 73.01(a), V.A.M.R., so that the evidence is included in the transcript even though it was not admitted. The witness expressed an opinion that said real estate had a fair market value of $1,850,000. In arriving at this valuation the witness stated that he thought the clubhouse and a few acres should be sold to an institution and that the best price for the remainder of the land could be obtained if it were sold for use as a subdivision. When used for building lots this witness considered the land worth approximately $6,000 per acre. For the purpose of determining the jurisdictional question hereinafter discussed we will assume that the evidence of Mr. Wilson was admissible.

Plaintiff filed this suit on December 30, 1958. The cause was tried on various days during the winter of 1960-1961 and the judgment entered herein on July 18, 1961.

In his jurisdictional statement plaintiff contends that we have jurisdiction because 'title to real estate is involved' and also because of the 'amount in controversy.' We do not agree with either view.

While it is true that the defendant owns real estate and plaintiff seeks a judgment which would result in the sale of said real estate by a receiver, and the distribution of the net proceeds to the stockholders, that does not indicate that this appeal involves 'the title to real estate' within the meaning of Article V, Section 3, Constitution of Missouri 1945, V.A.M.S. 'To give this court jurisdiction on the ground that title to real estate is involved, the title must be in dispute, that is, there must be a title controversy to be settled, First National Bank of Monett v. Kinser, 341 Mo. 819, 109 S.W.2d 1221, 1222, the judgment must directly affect or operate upon the title itself, Ballenger v. Windes, 338 Mo. 1039 ...

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9 cases
  • Sanderson v. Richardson
    • United States
    • Missouri Court of Appeals
    • October 4, 1968
    ...costs. Jackson County Public Water Supply Dist. No. 1 v. Ong Aircraft Corporation, Mo., 388 S.W.2d 893, 895--896(2); Long v. Norwood Hills Corp., Mo., 360 S.W.2d 593, 596(3); Warmack v. Crawford, Mo., 192 S.W.2d 406, 407(2); Higgins v. Smith, 346 Mo. 1044, 1047, 144 S.W.2d 149, In a will co......
  • Campbell v. Stout
    • United States
    • Missouri Court of Appeals
    • November 4, 1966
    ...Adjustment, Mo., 380 S.W.2d 442, 445 (2,3); Barnes v. Anchor Temple Ass'n., Mo., 369 S.W.2d 192, 193-194 (1-3); Long v. Norwood Hills Corp., Mo., 360 S.W.2d 593, 596-597. The plaintiffs' single allegation or statement concerning the money value of the relief sought, should it be granted or ......
  • Long v. Norwood Hills Corp., 31435
    • United States
    • Missouri Court of Appeals
    • May 22, 1964
    ...Supreme Court of Missouri. That court transferred the case to this court on the ground that it lacked jurisdiction of the appeal. See Mo., 360 S.W.2d 593. As a prefatory statement of what this case is about, we adopt portions of the opinion of the Supreme Court of Missouri, with some change......
  • Pasternak v. Mashak
    • United States
    • Missouri Supreme Court
    • November 9, 1964
    ...the record, Juden v. Houck, Mo.Sup., 228 S.W.2d 668, and cannot be grounded upon surmise, speculation or conjecture. Long v. Norwood Hills Corp., Mo.Sup., 360 S.W.2d 593. A thorough search of the record and exhibits admitted in evidence, as filed in this court, shows that the time for the f......
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