Murrey v. Specialty Underwriters, Inc., 29415

• Decision Date: 25 February 1975
• Docket Number: No. 29415,29415
• Citation: 233 Ga. 804,213 S.E.2d 668
• Parties: , 16 UCC Rep.Serv. 1352 William E. MURREY v. SPECIALTY UNDERWRITERS, INC., et al.
• Court: Georgia Supreme Court

Page 668

213 S.E.2d 668

233 Ga. 804, 16 UCC Rep.Serv. 1352

William E. MURREY v. SPECIALTY UNDERWRITERS, INC., et al.

No. 29415.

Supreme Court of Georgia.

Feb. 25, 1975.

Galkin, Katz & Tye, Donald A. Weissman, Atlanta, for appellant.

Lipshutz, Macey, Zusmann & Sikes, Martin M. Pollock, Richard P. Kessler, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

INGRAM, Justice.

The plaintiff in the trial court appeals from a judgment of the Superior Court of Fulton County granting the defendants' motions to dismiss the amended complaint. We affirm the trial court.

Plaintiff sought specific performance of a 'Stock Repurchase Agreement and Unanimous Written Consent of Stockholders' by defendant Mr. Agency, Inc., defendant Sepcialty Underwriters, Inc., and defendant Wesley R. Palmer. In addition, plaintiff sought to enjoin the remaining defendant, Dealer Service Plan, Inc., an affiliated company of the other corporate defendants, from collecting a promissory note executed by plaintiff 'pending the award of final relief in this case.'

The amended complaint alleged that plaintiff was a minority stockholder of defendant Mr. Agency, Inc., that 'a shareholder agreement . . . had been submitted to the plaintiff,' which, among other things, called for the purchase of plaintiff's stock interest in Mr. Agency, Inc., in the event of plaintiff's involuntary termination of employment, at the option of plaintiff.

It was further alleged that plaintiff had been employed by Mr. Agency, Inc.; that his employment had been involuntarily terminated; that 'informal negotiations pertaining to the resolution of the financial dealings between the parties' took place; and, that after 'all negotiations had broken down,' plaintiff, 'after due consideration, formally executed the shareholder agreement' which had been submitted to him previously and that plaintiff forwarded a copy of it to the other parties. Plaintiff also alleged that he gave written notice to the defendants of his election to sell his stock in Mr. Agency, Inc., as required by the agreement but that defendants have refused to honor the agreement.

In addition, plaintiff alleged he was obligated on a promissory note to defendant Dealer Service Plan, Inc., and that although plaintiff had been assured that payment of the note would be offset against monies owed plaintiff as a shareholder of Mr. Agency, Inc., enforcement of the note was being pursued against plaintiff and should be enjoined.

The alleged agreement, which plaintiff seeks to enforce, is attached as an exhibit to plaintiff's amended complaint and it shows only plaintiff's signature thereon. The trial court granted the filed by all four defendants and dismissed the amended complaint for failure to state a claim upon which relief can be granted.

The provisions of the alleged agreement pertinent to this appeal are as follows: Par. 1-'Neither stockholder (plaintiff) nor Palmer shall sell, transfer, encumber or otherwise dispose of any of his shares of capital stock of the corporation (defendant Mr. Agency, Inc.) which he may now or hereafter own . . . unless the stockholder or Palmer, respectively, shall have first made the offers to sell hereinafter described and such offers have been declined.'

Par. 2-'In the case of stockholder (plaintiff), the offer to sell shall first be given to the corporation (defendant Mr. Agency) . . .'

Par. 3(A)-'Within thirty (30) days after receipt of such offer, the corporation may (but, except as provided below, is not required to), by notice given to the stockholder . . . elect to purchase all, but not less than all, of the stock so offered . . .'

Par. 3(B)-'In the events of involuntary termination . . . of stockholder . . . the corporation shall, at the option of stockholder . . . be required to and shall purchase all of the stock so offered . . .'

Par. 4-'If the offer to sell described in Paragraph 2 is not accepted by the corporation . . . the stockholder . . . shall make such offer (in the same manner) to all of the other stockholders. (Defendants Palmer and Specialty Underwriters, Inc.) . . . If neither the corporation nor any of the other stockholders accepts the offer, the stockholder . . . may make a bona fide sale, transfer, encumbrance, or other disposition to a prospective purchaser, transferee lienor or recipient of any other disposition named in the statement attached to the offer . . . or may retain his shares after termination of his relationship with the corporation . . .'

Paragraph 8 of the alleged agreement provides the formula for computing the price of the stock; paragraph 13 provides that the agreement may be altered, amended or terminated in a writing signed by every party to the agreement; and paragraph 15 provides that the agreement shall be specifically enforceable.

' A motion to dismiss should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.' Finch v. City of Atlanta, 232 Ga. 415, 416, 207 S.E.2d 46, 47 (1974). The order of the trial court does not recite the grounds upon which the motions to dismiss were sustained; however, if the judgment is authorized for any reason, it must be affirmed. Beazley v. Williams, 231 Ga. 137, 138, 200 S.E.2d 751 (1973).

Under Code Ann. § 81A-110(c), '(a) Copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.' Thus, it is proper for this court to consider the alleged agreement in reviewing the judgment of the trial court. Under the terms of the alleged agreement, defendants Palmer and Specialty Underwriters, Inc., are not required to accept plaintiff's offer to sell his stock. See Paragraphs 1, 2 and 4 of the alleged agreement. These provisions merely obligate plaintiff to offer his stock to Palmer and Specialty (after first offering it to the corporation) before he may sell or otherwise dispose of his stock to a third party. Consequently, plaintiff's amended complaint states no claim for relief against Palmer and Specialty Underwriters under the alleged agreement even if these defendants were bound by the agreement as contended by plaintiff.

However, if defendant Mr. Agency, Inc., is bound by the alleged agreement, then the contract could be specifically enforced against that defendant. Paragraph 3(B) of the agreement provides that...