Skirvin v. Mesta

• Decision Date: 09 March 1944
• Docket Number: 2899.,No. 2848,2848
• Citation: 141 F.2d 668
• Parties: SKIRVIN et al. v. MESTA et al.
• Court: U.S. Court of Appeals — Tenth Circuit

141 F.2d 668 (1944)

SKIRVIN et al. v. MESTA et al.

Nos. 2848, 2899.

Circuit Court of Appeals, Tenth Circuit.

March 9, 1944.

Harry O. Glasser, of Enid, Okl., and Fred P. Branson, of Muskogee, Okl., for appellants.

Lynn Adams and Coleman Hayes, both of Oklahoma City, Okl. (D. I. Johnston, Roy C. Lytle, Keaton, Wells & Johnston, Bohannon & Adams, and Ames, Monnet, Hayes & Brown, all of Oklahoma City, Okl., on the brief), for appellees.

Before PHILLIPS and BRATTON, Circuit Judges, and KENNEDY, District Judge.

BRATTON, Circuit Judge.

The Skirvin Hotel and the Skirvin Tower are on opposite sides of the street in Oklahoma City, are connected by underground passage, and have certain operating facilities in common; Texahoma Realty Company owns the Skirvin Hotel, and prior to the receivership hereinafter mentioned Skirvin Hotel, Inc. operated it; Broadway Development Company owns and prior to the receivership operated the Skirvin Tower; and American Oil & Refining Company owns stock in Broadway Development Company. The officers and directors of Texahoma Realty Company are W. B. Skirvin, president, O. W. Skirvin, vice-president, M. A. Luty, secretary-treasurer, and the three the directors; of Broadway Development Company, O. W. Skirvin, president, W. B. Skirvin, vice-president, W. D. Parsons, secretary-treasurer, and the three the directors; of Skirvin Hotel, Inc., W. B. Skirvin, president, O. W. Skirvin, vice-president, M. A. Luty, secretary-treasurer, and the three the directors; and of American Oil and Refining Company, W. B. Skirvin, president, O. W. Skirvin, vice-president, M. A. Luty, secretary-treasurer, and the three together with two others the directors. W. B. Skirvin is the father of Pearl R. Mesta, Marguerite Tyson, and O. W. Skirvin, and from the beginning he was the active manager of both hotels.

In March, 1938, Pearl R. Mesta instituted in the United States Court three separate actions of similar pattern. In the first, No. 2055, Broadway Development Company and W. B. Skirvin were the defendants. It was alleged in the complaint that the stock of the corporation was divided into 1,000 shares; that American Oil & Refining Company owned 786 shares, plaintiff 212 shares, and O. W. Skirvin and W. D. Parsons 1 share each; that W. B. Skirvin and M. A. Luty had without authority received, endorsed and cashed checks payable and belonging to plaintiff; that according to her information the funds had been deposited to the account of American Oil & Refining Company and used in connection with the construction and operation of the Skirvin Tower; that she did not know the exact amount of such funds but that they exceeded $300,000; that the Skirvin Tower was not completed; that Broadway Development Company was insolvent; and that its affairs were being mismanaged. She prayed for an accounting and the appointment of a receiver. In the second action, No. 2056, Texahoma Realty Company, W. B. Skirvin, and M. A. Luty were named as defendants and the complaint alleged that the stock of the corporation was divided into 10,000 shares, of which she owned 3,333 shares; that the certificates belonging to plaintiff were kept in a safety deposit box held jointly by her, W. B. Skirvin, and O. W. Skirvin; that W. B. Skirvin, without authority, abstracted and removed such certificates, either forged or caused to be forged her name thereon, and then caused new certificates to be issued in his name or in the names of his nominees; that by purported action of the officers, directors, and shareholders, the stock was increased to 50,000 shares; that 25,000 shares of the additional stock were issued to Skirvin Hotel, Inc., and 15,000 shares to W. B. Skirvin; that W. B. Skirvin and M. A. Luty endorsed checks payable to plaintiff and belonging to her and placed the proceeds in the bank account of Texahoma Realty Company; and that W. B. Skirvin and M. A. Luty had declined to furnish plaintiff information concerning the corporation and also refused to permit her or her auditors to have access to the books and records. She prayed that W. B. Skirvin be required to surrender the 3,333 shares of stock belonging to her; that the additional shares of stock issued wrongfully be cancelled; that she have an accounting; that the books and records be made available to her; and that a receiver be appointed. And in the third action, No. 2057, Skirvin Hotel, Inc., W. B. Skirvin, and M. A. Luty were joined as defendants. The complaint alleged that the stock of the corporation was divided into 500 shares, of which plaintiff owned 148 shares; that her stock was kept in a safety deposit box held by her jointly with W. B. Skirvin and O. W. Skirvin; that W. B. Skirvin had without authority abstracted and removed such shares and forged or caused to be forged the name of plaintiff to an endorsement blank thereon; that according to her information, W. B. Skirvin had caused such certificates to be cancelled and new certificates issued in his name or the names of others; that W. B. Skirvin and M. A. Luty had without authority endorsed checks payable to her and belonging to her and deposited the proceeds thereof to the credit of Skirvin Hotel, Inc.; that the management of the Skirvin Hotel had not been for the best interests of the stockholders; that plaintiff was entitled to an audit and report of the affairs of the corporation; and that W. B. Skirvin and M. A. Luty refused to permit plaintiff or her auditors to have access to the books and records. She prayed that her stock be restored; that the records be made available to her and her auditors; and that a receiver be appointed. Answers were filed; and Marguerite Tyson and O. W. Skirvin intervened in each case, alleging their ownership of stock and aligning themselves with the plaintiff.

In May, 1938, W. B. Skirvin, Pearl R. Mesta, Marguerite Tyson and O. W. Skirvin entered into a trust agreement reciting that they each owned stock in Texahoma Realty Company, Skirvin Hotel, Inc., and American Oil & Refining Company, and stating the respective shares in each instance; and providing that such stock be deposited with W. B. Skirvin and O. W. Skirvin, as trustees, that the legal title thereto be vested in the trustees, that they have the right to vote, mortgage or pledge the stock but not to sell it or any of the assets of the corporations, that it be voted as a unit at all meetings of stockholders, that the trustees elect themselves as directors of the several corporations and also of Broadway Development Company, that after being elected directors they cause W. B. Skirvin to be elected president and O. W. Skirvin vice-president of the corporations, that all dividends received be held and used for the betterment of the corporations, that all stock dividends be held and retained by the trustees until the termination of the trust, that the trust continue throughout the lifetime of W. B. Skirvin, that at the termination of the trust the body of the trust property together with accrued interest and other undistributed profits be distributed to Pearl R. Mesta, Marguerite Tyson, and O. W. Skirvin in proportions as they might thereafter agree upon, and that they thereupon pay to M. A. Luty $50,000, if she be then living, and also certain specified sums to other persons named. O. W. Skirvin executed and delivered to W. B. Skirvin a letter bearing the same date as that of the trust agreement, making reference to the trust agreement, and stating that in the voting of the various stocks the decision of W. B. Skirvin should at all times be final.

In June, 1938, a "decree and dismissal" was entered in cause 2056 determining and adjudicating that Pearl R. Mesta, Marguerite Tyson, and O. W. Skirvin, owned 8330, 8330, and 8335 shares of stock, respectively, in Texahoma Realty Company, confirming such ownership, part as of March 30, 1924, and part as of April 6, 1936, and dismissing with prejudice certain causes of action in the complaint. And on the same day a similar "decree and dismissal" was entered in cause 2057, determining and adjudicating that Pearl R. Mesta, Marguerite Tyson, and O. W. Skirvin owned 145, 145, and 150 shares of stock, respectively, in Skirvin Hotel, Inc., confirming such ownership, part as of March 30, 1925, and part as of December 7, 1926, and dismissing with prejudice certain causes of action contained in the complaint. In May, 1943, Texahoma Realty Company and W. B. Skirvin filed in No. 2056 a motion to vacate and set aside the decree; and at the same time Skirvin Hotel, Inc., and W. B. Skirvin filed a like motion in No. 2057. Both motions are still pending.

In June, 1942, Pearl R. Mesta and Marguerite Tyson instituted in the United States Court an action against Skirvin Hotel, Inc. It was numbered 1070. The complaint alleged in the first cause of action that Marguerite Tyson had lent sums of money to the company and that the balance due and unpaid was $3,450.51, plus interest. In the second cause of action, it was alleged that Pearl R. Mesta owned 145 shares of stock in the company, that the company leased and operated the Skirvin Hotel, that the officers and directors of the company had mismanaged its affairs in such manner that it had failed to meet its obligations under the lease and otherwise, and that unless a receiver was appointed plaintiff would suffer irreparable injury. The prayer was that Marguerite Tyson have judgment and that a receiver be appointed. On the same day, Pearl R. Mesta instituted in the same court an action against Texahoma Realty Company. It was numbered 1071, and the complaint charged that plaintiff had lent to the company money in the aggregate amount of $171,375.11; that plaintiff owned 8330 shares of stock in the company; that a mortgage covering the Skirvin Hotel was in default; that funds belonging to the company had been diverted and used for other purposes; that there had been a lack of diligence in the collection of rents; and that unless a receiver was...