Russell v. First York Sav. Co.

• Decision Date: 27 July 1984
• Docket Number: No. 83-466,83-466
• Citation: 218 Neb. 112,352 N.W.2d 871
• Court: Nebraska Supreme Court
• Parties: Helen O. RUSSELL, Appellant, v. FIRST YORK SAVINGS COMPANY, a corporation, et al., Appellees.

Page 871

352 N.W.2d 871

218 Neb. 112

Helen O. RUSSELL, Appellant, v. FIRST YORK SAVINGS COMPANY, a corporation, et al., Appellees.

No. 83-466.

Supreme Court of Nebraska.

July 27, 1984.

Syllabus by the Court

1. Limitations of Actions: Pleadings. If a petition alleges a cause of action ostensively barred by the statute of limitations, such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute.

2. Pleadings. Proper pleading requires a petition to state in logical and legal form the facts which constitute the plaintiff's cause of action, define the issues to which the defendant must respond at trial, and inform the court of the real matter in dispute. The character of the facts alleged, not necessarily the prayer for relief, determines the nature of the action.

3. Declaratory Judgments. A declaratory judgment is a statutory remedy for the determination of a justiciable controversy where the plaintiff is in doubt as to his legal rights.

Richard L. Spangler, Jr., of Woods, Aitken, Smith, Greer, Overcash & Spangler, Lincoln, for appellant.

Robert T. Grimit of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Helen O. Russell, plaintiff and a former shareholder of The York Investment Company, appeals the judgment of the district court for York County which sustained the defendants' demurrer. Russell requested a part of the assets of The York Investment Company upon dissolution. The district Court held that Russell's action was barred by Neb.Rev.Stat. § 21-20,104 (Reissue 1983). We affirm.

A demurrer tests the substantive legal rights of the parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from the facts which are well pleaded. Philp v. First Nat. Bank & Trust Co., 212 Neb. 791, 326 N.W.2d 48 (1982). In testing whether a petition states a cause of action, we must accept as true all facts well pleaded, but we do not accept as true conclusions of law or of the pleader. Harmon Care Centers v. Knight, 215 Neb. 779, 340 N.W.2d 872 (1983). For the purpose of this appeal such facts and inferences will be deemed to be true.

On May 23, 1980, Helen O. Russell, a shareholder of The York Investment Company (York Investment), received written notice of a special meeting of shareholders of York Investment to be held on June 5. The stated purpose of the special meeting was "[t]o consider and take action for the adoption of a Plan for the Complete Liquidation of the corporation and for a distribution of all of the assets of the corporation in complete liquidation ...." On June 5 the shareholders of York Investment were the First York Savings Company, 462 shares; Helen O. Russell, 20 shares; and Ann LeMay, 1 share. The main asset of York Investment was a commercial building which formerly was occupied by the J.M. McDonald Company but is now occupied by the York State Bank and Trust Company.

On June 5, Dean Sack, one of the defendants, was an officer and director of York State Company, York State Bank and Trust Company (Bank), First York Savings Company, and York Investment. York State Company owned 100 percent of the stock of both First York Savings Company and the Bank. As a result of such stock owned, York State Company was a holding company for both First York Savings Company and the Bank. Since he was the majority shareholder in York State Company, Sack controlled York State Company, First York Savings Company, the Bank, and York Investment.

Russell did not attend the shareholders' special meeting. At the special shareholders' meeting on June 5, York State Company, controlled by Sack, unanimously voted to adopt a plan of liquidation of York Investment pursuant to I.R.C. § 334(b)(2) (1976), namely, York Investment would distribute all its assets, except those retained for corporate obligations, to the shareholders and complete the liquidation in the ratio of a shareholder's holdings to the total issued and outstanding stock of the corporation.

Shareholders present at the special meeting determined that the value of corporate stock in liquidation of the corporate assets was $282.23 for each of the 483 outstanding shares of York Investment. A corporate resolution was adopted by York Investment, namely, the dissolved corporation's real estate would "be distributed and conveyed pursuant to a Plan of Liquidation, in lieu of cash, to First York Savings Company in liquidation of its stock interest ...." The resolution also provided that Russell would be paid $5,644.60 in cash for her shares in York Investment. On June 5 tender was made to Russell in accordance with the corporate resolution, but Russell refused the tender of $5,644.60. In her letter of June 23, 1980, Russell demanded her undivided percentage interest of 4.14 percent in the real estate owned by York Investment, that is, a percentage equal to her percentage interest of outstanding stock she owned in York Investment.

Russell does not object to the dissolution of York Investment. Russell's only objection is directed to the distribution of assets (real estate) of York Investment to First York Savings Company and the cash payment to minority shareholders of York Investment in lieu of their proportional interest in the assets of the dissolved corporation.

On June 23 York Investment conveyed its real estate by warranty deed to First York Savings Company. A statement of intent to dissolve York Investment was signed by Sack on August 25, 1980, and was filed with the Secretary of State of Nebraska on November 30.

On September 11 First York Savings Company conveyed the real estate formerly owned by York Investment to the present titleholder, the Bank. The Bank had common officers, directors, and shareholders with other defendants in this action and with York Investment. Also, the Bank knew about the Russell claims at the time the real estate was transferred to the Bank on September 11.

Articles of dissolution of York Investment were signed by its president, Sack, on October 28. The articles of dissolution were then filed in the office of the Secretary of State of Nebraska on November 4.

In her amended petition Russell claims that the transfer of York Investment's real estate to First York Savings Company and the subsequent conveyance to the Bank were appropriations of corporate opportunity belonging to the shareholders of York Investment. Russell further claims that Sack owed a fiduciary duty to her as a mutual shareholder of York Investment and that there was a breach of Sack's fiduciary duty, causing a constructive trust to be imposed on the assets (real estate) of York Investment. Russell's share or part of the trust would then be 4.14 percent, that is, a percentage equal to her stock ownership in York Investment. Russell also claims there was a plan or scheme to deprive her of the full value of her proportional interest in the assets of York Investment and that the determination of value set by the majority shareholders of York Investment was self-dealing and not an arm's-length transaction.

Dissolution of the York...