North Pacific S. S. Co. v. Guarisco
| Decision Date | 24 August 1982 |
| Citation | 293 Or. 341,647 P.2d 920 |
| Parties | NORTH PACIFIC STEAMSHIP CO., a corporation, Petitioner on Review, v. Peter V. GUARISCO, Hellenic, Inc., Pyramid Ventures Group, Inc., Pyramid Bulkhandling, Inc., Respondents on Review, Donald C. Scafidi and Pyramid Bulkcarriers, Inc., Respondents on Review, Creole, Ltd., Pyramid Supply Inc., Transbulk Ltd., Pyramid Sugar Transport, Inc., and Creole International, Defendants. CA 13405; SC 27511. |
| Court | Oregon Supreme Court |
Bruce M. Hall, Portland, argued the cause and filed briefs for petitioner on review. With him on the briefs were Wood, Tatum, Mosser, Brooke & Holden, P.C. and Daniel M. Ricks, Portland.
William M. McAllister, Portland, argued the cause and filed briefs for respondents on review. With him on the briefs was Richard C. Josephson, Portland.
Before DENECKE, C. J., and LENT, LINDE, PETERSON and CAMPBELL, JJ.
Plaintiff North Pacific Steamship Company (North Pacific), a judgment creditor, instituted this suit, styled as a creditor's bill in equity, against the several individual and corporate defendants in an effort to have their assets applied against its unsatisfied judgment. The judgment debtor, Pyramid Bulkcarriers (Bulkcarriers), is named as defendant but its assets have long since been depleted. The principal targets of this suit are several allied corporations and a couple of individuals who managed and controlled Bulkcarriers. In brief, North Pacific seeks to have these defendants held liable for Bulkcarriers' judgment debt under theories of improper diversion of corporate opportunities and "piercing the corporate veil."
From a decree generally in favor of North Pacific, several of the defendants appealed; North Pacific cross-appealed. The Court of Appeals reversed upon a finding that the trial court was without jurisdiction over the defendants. 49 Or.App. 335, 619 P.2d 1302 (1980), opinion adhered to, reh den, 50 Or.App. 285, 622 P.2d 1142 (1981). North Pacific petitioned this court for review alleging this finding to be erroneous. We accepted review and are faced with the single issue: For purposes of this creditor's bill in equity, were the contracts between the several defendants and this state such as to make the trial court's exercise of jurisdiction over them consonant with applicable statutes and the Due Process Clause? 1
Cases of this sort have a tendency to generate voluminous and complex records, and this case is no exception. 2 Fortunately, however, the evidence relevant to the jurisdictional issue may be briefly stated. First, the cast of characters: Plaintiff North Pacific is a foreign corporation, incorporated under the laws of Liberia, apparently owned and controlled in large part by Portland industrialist Dr. Leonard Schnitzer and attorney Kenneth Lewis. During times material to the present controversy, North Pacific was not licensed to do business in Oregon and was represented here only by its agent, Lasco Shipping Company.
Bulkcarriers, also a Liberian corporation, was incorporated in 1969, maintained its principal offices in Bermuda, and conducted its business out of Louisiana. Its primary business was ocean-going bulk transport with time-chartered vessels in the maritime trade between Gulf ports, the Caribbean, and South America. The original ownership of Bulkcarriers was equally divided between defendant Hellenic, Inc., and another unrelated corporation. Hellenic and other defendants, however, gradually acquired control of Bulkcarriers and at times relevant here owned up to 80% of its stock. In addition, Hellenic owns 100% of the stock of defendant Pyramid Bulkhandling, Inc. (Bulkhandling).
Hellenic, in turn, is a closely-held family corporation controlled by defendant Peter V. Guarisco, a Louisiana resident. Guarisco, who apparently has his fingers in many pies, also is a principal owner, either individually or through family connections, and manager of defendant Pyramid Ventures Group, Inc., (Ventures) and the other corporate defendants. In addition, he was Chairman of the Board of Bulkcarriers, Bulkhandling, and Ventures, as well as an officer or director of the other defendants.
Defendant Ventures was formed under the direction of Guarisco and defendant Donald Scafidi and incorporated in Louisiana. Its principal purpose was apparently to operate as an agent of Bulkcarriers and not to acquire assets and income for itself. Defendant Scafidi, a Louisiana resident, was the "right-hand man" of Guarisco in these endeavors; although he had little capital investment in the various corporate defendants, he was an officer or director of at least several of them and was involved in their management and operations.
The present controversy had its genesis in a charter agreement entered into between North Pacific and Bulkcarriers. In 1970, North Pacific acquired two self-loading ocean-going cargo vessels, the Pacsea and Pacsun, which it made available for charter operations. Bulkcarriers became interested in the vessels for its Gulf operations and entered into charter negotiations with North Pacific. Schnitzer and Lewis, as officers of Lasco, North Pacific's Portland agent, negotiated with Scafidi and a Mr. Richard V. Tedesco, agents for Bulkcarriers, in Portland and Louisiana to effect the charter. The charter contract, as finalized in late 1970, was between Bulkcarriers and North Pacific and was to run for several years.
In the spring of 1971, difficulties began to develop. North Pacific contends that Bulkcarriers, realizing that a West Coast longshoremen's strike was imminent and that the financial market for ship chartering would plummet as a result, tried to back out of the deal. Bulkcarriers argued that operational problems with the ships and crews, which were supplied by North Pacific, and the dissatisfaction of their principal customers justified their cancelling of the charter. In any event, Bulkcarriers ceased charter payments and the ships were returned to North Pacific on June 30, 1971, one day before the strike.
At North Pacific's instance, arbitration of the dispute ensued. Proceedings were held in Portland, New Orleans, and New York during 1971 and 1972 and resulted in a finding that Bulkcarriers had wrongfully breached its charter contracts as of June 30, 1971. The arbitrators set North Pacific's damages at $842,350.67.
Shortly after the award was announced, North Pacific brought an action in Federal District Court for the Eastern District of Louisiana to have the award entered as a judgment of the court. On May 18, 1973, judgment was entered in favor of North Pacific against Bulkcarriers for the amount stated plus interest at 7% per annum until paid. North Pacific executed upon Bulkcarriers' Louisiana bank account, capturing $118,000, but inasmuch as Bulkcarriers had no further assets subject to execution North Pacific's judgment has gone largely unsatisfied. Further efforts by North Pacific to obtain satisfaction in Louisiana bogged down, and in 1975 it instituted the present action in Multnomah County Circuit Court. North Pacific's approach here was two-fold: 1) it brought a cause of action at law for fraud alleging that Scafidi and Tedesco made material misrepresentations during the contract negotiations; and 2) it brought the present suit styled as a creditor's bill in equity.
Defendants from the beginning have vigorously challenged the Oregon courts' jurisdiction over them. Soon after service upon them they all joined in a special appearance, by way of motion to quash service, requesting dismissal of the suit upon the ground that the court lacked personal jurisdiction over them. The circuit court found jurisdiction over Bulkcarriers, Ventures, and Scafidi based upon torts and business transactions alleged to have occurred within the state, but dismissed the complaint as to the rest of the defendants. Bulkcarriers, Ventures, and Scafidi petitioned this court for a writ of mandamus seeking to overturn the circuit court's determination as to them; this court, however, denied the petition. 3 Meanwhile, North Pacific amended its complaint and re-served the other defendants. These defendants again joined in a motion to quash. This time, however, the circuit court denied the motion as to Guarisco, Hellenic, and Bulkhandling. Defendants then moved for a order of dismissal upon grounds of forum non conveniens, alleging that a similar action was already pending in Louisiana, a more convenient forum; this motion, however, was also denied.
The battle of motions and pleadings continued until finally, in late 1978, the case was tried. The action at law for fraud was split from the creditor's bill in equity for separate trial and then stayed pending a final decree in this suit. A final decree was entered in January 1979 generally in North Pacific's favor. In its findings of fact and conclusions of law the court, in relevant part, found and concluded as follows: the court had jurisdiction over all the remaining defendants; none of the defendants was the "alter ego" of Guarisco or Hellenic; and defendants Ventures, Bulkcarriers, and Bulkhandling had engaged in a plan to divert business from Bulkcarriers to Bulkhandling and Ventures, and ultimately to defendant Transbulk, Ltd., for the purpose of avoiding payment of North Pacific's judgment. A decree was entered against Ventures, Bulkcarriers, and Bulkhandling for the sum of $1,009,769.32 (the amount of the outstanding judgment against Bulkcarriers, plus interest). In addition, the court concluded that North Pacific had not established any basis for recovery under either fraud or general equitable principles and noted that the former finding would operate to collaterally estop North Pacific's maintenance of the pending fraud action.
Several of the defendants appealed; North Pacific cross-appealed. The Court of Appeals reversed, finding that the circuit...
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Espinoza v. Evergreen Helicopters, Inc.
...least one party is foreign, but concluding that was not dispositive of personal jurisdiction in that case); North Pacific v. Guarisco, 293 Or. 341, 356 n. 12, 647 P.2d 920 (1982) (suggesting that a trial court might consider factors such as whether there is an alternative convenient forum a......
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Englert v. Macdonell
...Oregon has held that "[m]andamus, an extraordinary remedy, is a discretionary writ and not a writ of right." N. Pac. S.S. Co. v. Guarisco, 293 Or. 341, 647 P.2d 920, 924 n. 3 (1982) (holding on direct appeal that the trial court improperly exercised jurisdiction over defendants, despite hav......
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State v. Haugen, No. CC 04C46224; SC S059519.
...of a petition for writ of mandamus does not constitute a ruling on the merits of the issues raised. See North Pacific v. Guarisco, 293 Or. 341, 346 n. 3, 647 P.2d 920 (1982) (because mandamus is extraordinary and discretionary remedy, denial of petition is not binding on determination of is......
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State v. Haugen, CC 04C46224
...for writ of mandamus does not constitute a ruling on the merits of the issues raised. See North Pacific v. Guarisco, 293 Or 341, 346 n 3, 647 P2d 920 (1982) (because mandamus is extraordinary and discretionary remedy, denial of petition is not binding on determination of issue); State ex re......