A. Teixeira & Co., Inc. v. Teixeira

699 A.2d 1383, 1997 R.I. LEXIS 255, 1997 WL 564228

• Court: Supreme Court of Rhode Island
• Decided: September 11, 1997
• Docket: 95-167-Appeal
• Status: Published

Opinions

OPINION

BOURCIER, Justice.

In this matter we consider the corporate opportunity doctrine. The defendants, Antonio L. Teixeira (Antonio) and Armenio Teix-eira (Armenio), appeal to this Court from a final judgment of the Superior Court following a jury verdict finding the defendants to have wrongfully taken a corporate opportunity from the plaintiff, A. Teixeira & Co., Inc. The final judgment imposed a constructive trust upon Armenio’s shares of stock in a retail liquor store known as Mendon Liquors and awarded punitive damages to the plaintiff corporation in the amount of $20,000. The defendants here on appeal contend that the trial court should have granted directed verdicts¹ in their favor on the question of whether they had deprived the plaintiff of a corporate opportunity or, in the alternative, the court should have granted their motion for a new trial. The defendants additionally allege error with respect to the court’s jury instruction on both the imposition of a constructive trust and punitive damages. We conclude that directed verdicts should have been granted, and we reverse the judgment of the trial court.² We need not address the alleged jury trial instruction issues.

I

The Facts

A. Teixeira Co., Inc. (plaintiff corporation or corporation), is a Rhode Island corporation formed in 1981 by six shareholders: Ho-norato Custodio, Artur Mota, Joaquina Duarte, Manuel Moitoso, Armenio Teixeira, and Antonio L. Teixeira. After having each made capital contributions of $20,000, the shareholders each received 100 shares of stock in the corporation. As acknowledged by all the shareholders, the corporation was formed for the purpose of acquiring a recently bankrupt retail liquor store known as Pop’s Liquors, located in Cumberland, Rhode Island. After raising sufficient capital, the corporation realized its goal by purchasing Pop’s Liquors at a public auction as well as then later having its liquor license transferred to the corporation. Shortly thereafter, in February of 1982, Pop’s Liquors once again opened its doors for business, this time under the ownership of plaintiff corporation.

In terms of corporate organization and management structure, the trial record indicates that plaintiff corporation was not a model of clarity. According to its articles of incorporation that neglected to indicate that it was a close corporation pursuant to G.L. 1956 § 7-1.1-51, it had no board of directors, and Honorato Custodio (Custodio), one of its six shareholders, initially served as the president, vice-president, secretary, and treasurer of the corporation and indeed served in these capacities for all times relevant to this dispute. He also oversaw the day-to-day operation of Pop’s Liquors along with his wife, both as salaried employees, and thereby acted, as he described it, as its general manager. At trial, however, Custodio disputed this apparent autocratic managerial status and maintained that all the other shareholders also actively participated from time to time in management decisions. Trial testimony from each of the shareholders bears out Custodio’s contention and indicates that each of the shareholders played at least some role in the corporation’s management of Pop’s Liquors by offering advice on such matters as purchasing items for sale in the liquor store, expanding sales and advertising campaigns, and, in general, acting as shareholders would act in a close corporation.

Ownership in the corporation remained straightforward despite one minor adjustment. In April of 1982 Artur Mota (Mota), one of the original shareholders, apparently skeptical of the loyalty of some of his fellow shareholders, offered to sell his stock to the corporation as required pursuant to the preemptive rights provision contained in the corporation’s bylaws. After a formal rejection of Mota’s offer by the corporation, Mota sold his shares to Joaquim Duarte (Duarte). From that point on, Duarte owned 200 shares, and the remaining four shareholders owned 100 shares each of corporate stock.

The flashpoint for this litigation apparently occurred sometime in early December of 1982. At that time Custodio learned that Mendon Liquors, a retail liquor store located in Cumberland within a few miles of Pop’s Liquors, was going to be offered for sale. Custodio told the trial jury that he was extremely excited by the prospect of purchasing this competitor by way of plaintiff corporation and thereby increasing its share of the retail liquor market in the local area. According to Custodio, he first mentioned the news to Antonio, who allegedly seemed lukewarm to the idea of revealing the opportunity to the corporation’s other shareholders. Custodio testified that Antonio suggested the idea of utilizing the opportunity for themselves. Despite Antonio’s alleged suggestion, however, Custodio called a meeting of the corporation’s shareholders and presented to them the idea of purchasing Mendon Liquors. Although the corporate minutes fail to reflect any such meeting, Custodio told the jury that all the shareholders, including Antonio and Armenio, agreed at that meeting that the purchase would be beneficial to the corporation and authorized Custodio as president of the corporation to undertake negotiations with the owners of Mendon Liquors.

Custodio’s purchase of Mendon Liquors never materialized, however. His efforts to negotiate such a sale during the time between December 1982 and March 1983 were certainly less than enterprising. His trial testimony indicates that the negotiations never reached a formal or serious stage and that he concluded therefrom that the owners of Mendon Liquors seemed uninterested in his inquiries. Custodio’s dawdling efforts on behalf of plaintiff corporation consisted of five or six telephone calls to a Mrs. Cabral, and a short visit with a Mr. Cabral, the owners of Mendon Liquors. According to Custodio, the negotiations were a “real puzzle” because Mrs. Cabral would not return his phone calls with sales terms or a price for the purchase and Mr. Cabral never called him regarding the sale price or terms, leading him to believe that the Cabrals were “stalling” him.

In late spring 1983 Antonio met with Cus-todio and told him that Mendon Liquors had been purchased earlier by Armenio and two other individuals. The trial evidence before the jury disclosed that Mendon Liquors was not sold until late June 1983 to Act, Inc., a Rhode Island corporation comprising one of plaintiff’s shareholders, Armenio, along with his cousin, Caesar Teixeira, and Basil Silva, both nonshareholder third parties.

Believing that the sale of Mendon Liquors to Act, Inc., was, however, somehow initiated by Armenio and constituted a sharp deal, Custodio, Duarte, and Manuel Moitoso filed suit against the three defendants on behalf of plaintiff corporation. They alleged that the purchase of Mendon Liquors was a corporate opportunity that rightfully belonged to plaintiff corporation but that it had been diverted by defendants, one of whom was Armenio, a shareholder in plaintiff corporation. In plaintiff’s view, not only did its inability to purchase Mendon Liquors appear to be the direct result of alleged secret negotiations by Armenio and Antonio with the Cabrals but that the imposition of a constructive trust as well as punitive damages was also an appropriate remedy. The trial justice and jury apparently agreed.

On appeal before this Court plaintiff corporation contends that the trial court’s final judgment should be affirmed. Alternatively, defendants contend that the doctrine of corporate opportunity was improperly applied in this instance. The defendants assert that plaintiff corporation was not financially able to acquire Mendon Liquors and had abandoned its efforts to purchase Mendon Liquors by its less than animated efforts to negotiate with the Cabrals.

II

Analysis

The plaintiffs claim is premised on what has come to be known as the doctrine of corporate opportunity. Stated succinctly, this legal doctrine prohibits a corporate fiduciary from diverting a business opportunity away from the corporation and taking it for himself or herself. See Guth v. Loft, Inc., 5 A.2d 503 (Del.1939); Victor Brudney & Robert Charles Clark, A New Look at Corporate Opportunities, 94 Harv. L.Rev. 998 (1981); see also Sladen v. Rowse, 115 R.I. 440, 444, 347 A.2d 409, 412 (1975). To successfully state a claim then, a plaintiff must demonstrate that the defendant was a corporate fiduciary and that he or she diverted a corporate opportunity. In this case we must examine both of these requirements

A. Corporate Fiduciaries

Our first concern, one inadequately addressed by the parties, is the question of whether either Armenio or Antonio as a minority shareholder in a corporation acting as if it were a close corporation was a corporate fiduciary. Corporate officers and directors of any corporate enterprise, public or close, have long been recognized as corporate fiduciaries owing a duty of loyalty to the corporation and its shareholders and thereby prohibited from diverting corporate opportunities to themselves. As the Supreme Court of Delaware explained in a leading case:

“While technically not trastees, they stand in a fiduciary relation to the corporation and its stockholders. A public policy, existing through the years, and derived from a profound knowledge of human characteristics and motives, has established a rule that demands of a corporate officer or director, peremptorily and inexorably, the most scrupulous observance of his duty, not only affirmatively to protect the interests of the corporation committed to his charge, but also to refrain from doing anything that would work injury to the corporation, or to deprive it of profit or advantage which his skill and ability might properly bring to it, or to enable it to make in the reasonable and lawful exercise of its powers.” Guth, 5 A.2d at 510.

This state as well has recognized that corporate officers and directors stand in a fiduciary capacity and are liable for taking corporate opportunities. See Boss v. Boss, 98 R.I. 146, 200 A.2d 231 (1964). Thus in Sladen v. Rowse, 115 R.I. 440, 347 A.2d 409 (1975), we found that a corporate officer and director charged with the responsibility of acquiring stock for the corporation could not, as a fiduciary, acquire the stock for himself without first offering it to the corporation. See id. at 444-45, 347 A.2d at 412-13. We explained, “[A] person holding those offices may not divert to himself opportunities which in justice belong to the corporation he serves.” Id. at 444, 347 A.2d at 412; see also Long v. Atlantic PBS, Inc., 681 A.2d 249 (R.I.1996).

In the instant case, however, Antonio and Armenio were neither corporate officers nor directors. Pursuant to the articles of incorporation there was no board of directors, Custodio held the positions of president, vice-president, treasurer, and secretary, and his own testimony indicated that he acted as the general manager of its liquor store’s day-to-day operation.³ It might therefore be argued that Antonio and Armenio, who were neither directors nor corporate officers, were not fiduciaries to the corporation. We do not believe, however, that the question of who is a corporate fiduciary is subject to such a facile analysis. Officers and directors are naturally the most readily apparent fiduciaries of a corporation because of their unique relation to the corporation itself, its stockholders, and fellow directors or officers and not simply because of their titles. We are of the opinion that the term “fiduciary” is a broad concept that might correctly be described as “anyone in whom another rightfully reposes trust and confidence.” Francis X. Conway, The New York Fiduciary Concept in Incorporated Partnerships and Joint Ventures, 30 Fordham L.Rev. 297, 312 (1961).

This Court has heretofore recognized that partners in a partnership owe one another a fiduciary duty, see Sullivan v. Hoey, 102 R.I. 487, 488, 231 A.2d 789, 790, (1967), and have additionally recognized that shareholders in a close held family corporation may have a fiduciary duty toward one another. See Estate of Meller v. Adolf Meller Co., 554 A.2d 648, 651-52 (R.I.1989); Fournier v. Fournier, 479 A.2d 708, 712 (R.I.1984); see also Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 328 N.E.2d 505, 515 (1975); but see Dowell v. Bitner, 273 Ill.App.3d 681, 210 Ill.Dec. 396, 403, 652 N.E.2d 1372, 1379 (1995). Today we conclude on the basis of the small number of shareholders in plaintiff corporation, the active participation by these shareholders in management decisions, and their close and intimate working relations, that the shareholders of plaintiff corporation, by acting as if they were partners, thus assumed a fiduciary duty toward one another and their corporation. This is not to say that all shareholders in all close corporations are under such a duty.⁴ The shareholders may show by way of evidence that none of them intended such a partnership relationship, as evidenced by a stockholders’ agreement or other relevant evidence. The existence of such a fiduciary duty is a fact-intensive inquiry. Where as here, when the shareholders in a less-than-thirty-shareholder corporation act among themselves as partners in a business venture for mutual profit or loss, the law ought to treat them as fiduciaries.

B. Corporate Opportunities

Having concluded that in this case the five shareholders were corporate fiduciaries, we must next examine the question of whether there was a breach of that fiduciary role in this case. The defendants maintain that they have not deprived plaintiff of a corporate opportunity.

There has been a great deal of judicial and scholarly debate on exactly what constitutes a forbidden corporate opportunity. Judges have formulated the “line of business” test, the “interest or expectancy” test, and the “fairness” test in order to assist in divining when a fiduciary may avail him or herself of a business opportunity and when it rightfully belongs to their corporation. See Knepper & Bailey, Liability of Corporate Officers & Directors, § 4-12 at 154 (5th ed. 1993). As the Supreme Court of Maine has recognized, these different formulations rest on the single notion that a “corporate fiduciary should not serve both corporate and personal interests at the same time.” Northeast Harbor Golf Club, Inc. v. Harris, 661 A.2d 1146, 1150 (Me.1995). The facts here show that plaintiff corporation was engaged in the operation of a retail liquor store in Cumberland, Rhode Island, and that by vote of the shareholders, Custodio, the corporation’s president, was authorized to attempt to negotiate the purchase of Mendon Liquors, a nearby retail liquor store. Clearly Mendon Liquors was a business in the same line of business as plaintiff, and plaintiff had a corporate interest in acquiring that business. However, whether the opportunity for plaintiff ever to accomplish its purchase of Mendon Liquors did actually exist was not considered by the trial justice when passing upon defendants’ motion for directed verdict.

In this case the facts demonstrate that defendant Antonio never acquired any interest in Act, Inc., or Mendon. Liquors. Although we have determined that he was a corporate fiduciary of plaintiff and that Men-don Liquors represented a potential corporate opportunity, the fact that he acquired no interest whatever in Mendon Liquors belies the trial court’s judgment that he deprived plaintiff of a corporate opportunity. In this case Antonio did not divert any corporate opportunity in Mendon Liquors to himself and thus could not in law have been found to have breached his fiduciary duty to plaintiff. The denial of his motion for a directed verdict was therefore error.

With respect to Armenio, however, the trial evidence reveals that he did acquire a financial interest in Act, Inc. The trial evidence, however, lacked the probative proof recognized as required by the trial justice in her later instruction to the jury that Mendon Liquors was a corporate opportunity that was in fact realistically available to plaintiff corporation or that the corporation was financially able to purchase Mendon Liquors. We conclude from the facts reported in the trial record before us that Armenio, although owing a fiduciary duty to his fellow shareholders in plaintiff corporation, did not breach that duty because plaintiff corporation was financially unable to avail itself of the opportunity of purchasing Mendon Liquors. Armenio then, as anyone, was able to participate in its acquisition by Act, Inc., without accountability to plaintiff corporation. See Northwestern Terra Cotta Corp. v. Wilson, 74 Ill.App.2d 38, 219 N.E.2d 860, 864 (1966) (“an opportunity may be embraced * * * without accountability to the corporation if the corporation sought without success to obtain it”); Robinson v. Brier, 412 Pa. 255, 194 A.2d 204, 206 (1963) (“where the corporation is unable to avail itself of the business opportunity, there can be no usurpation of a corporate opportunity”).

Ill

Conclusion

We today recognize that a fiduciary obligation, similar to that imposed upon partners in a partnership, does exist among the shareholders in a small family type of or close corporation. We note for purposes of guidance in possibly avoiding controversy or litigation of the nature concerned in this appeal, that when a shareholder in such a corporation becomes aware of what could be considered a corporate opportunity advantageous to the corporation, he or she should first analyze the nature of the opportunity to determine if it is one that rightfully belongs to the corporation. If the shareholder reasonably believes that the opportunity is one in which the corporation has no interest or does not have either any expectancy in obtaining or the financial ability to obtain, then the shareholder may take it for himself or herself without breaching any fiduciary obligation. A shareholder, by first presenting the opportunity to the other shareholders by means of a corporate meeting, however, would certainly create a kind of “safe harbor” and remove the probability of a later judicial finding that the shareholder had improperly usurped a corporate opportunity. The shareholder’s up-front presentation of the available corporate opportunity to the corporation and its other shareholders, we believe, would certainly lessen the possibility of later litigation questioning the shareholder’s breach of his or her fiduciary duty if the shareholder later acquires the particular subject matter. See generally Broz v. Cellular Information Systems, Inc., 673 A.2d 148, 157-58 (Del.1996) (involving directors and officers).

On the record before us we conclude that the plaintiff in this case has failed to prove that the opportunity was reasonably available to it to purchase Mendon Liquors. Accordingly in such a case there was no breach of any fiduciary duty by Armenio. His motion for a directed verdict should have been granted and was erroneously denied.

For the foregoing reasons the appeal of Antonio and Armenio Teixeira is sustained, and the judgment appealed from is reversed.

GOLDBERG, J., did not participate.

1 . Pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, as amended in 1995, motions for directed verdict are now designated as motions for judgment as a matter of law.

2 . Previously this matter came before a hearing panel of this Court pursuant to an order directing the parties to appear and show cause why the issues raised should not be summarily decided. At that time the Court concluded that cause had been shown with respect to the principal claim against defendants Antonio and Armenio for having deprived plaintiff, A. Teixeira & Co., Inc., of a corporate opportunity but proceeded to decide the other issues raised in that appeal summarily. With respect to the corporate opportunity claim we placed the matter on the regular calendar for full briefing and oral argument. See A. Teixeira & Co. v. Teixeira, 674 A.2d 407 (R.I.1996). Now, following that written and oral argument we address the principal claim.

3 . Our task in determining whether the corporation here in question was in fact a close corporation would have been alleviated had the attorney who prepared the corporate articles of incorporation and corporate bylaws been mindful of G.L.1956 § 7-1.1-51.

4 . We note that "[t]he term 'close corporation’ has been defined in various ways,” 1 O’Neal’s Close Corporations, § 1.02 at 4 (3d ed. 1992), but "that no satisfactory all-purpose definition of a close corporation appears ever to have been worked out.” Id. at 7 n. 1 (quoting Carlos D. Israels, The Close Corporation and the Law, 33 Cornell L.Q. 488, 491 (1948)).