Black, Inc. v. Dunklin

540 S.W.3d 696
CourtCourt of Appeals of Arkansas
DecidedJanuary 10, 2018
DocketNo. CV–17–274
StatusPublished
Cited by1 cases

This text of 540 S.W.3d 696 (Black, Inc. v. Dunklin) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black, Inc. v. Dunklin, 540 S.W.3d 696 (Ark. Ct. App. 2018).

Opinion

ROBERT J. GLADWIN, Judge

This appeal involves the sale of nonvoting stock in a family-held corporation, Black, Inc. (Black Inc.), pursuant to a stock repurchase agreement (SRA). Black Inc. and Deborah Dunklin Tipton have filed separate appellate briefs seeking reversal of a series of orders in the Arkansas County Circuit Court that, among other things, confirm the appraisal of appellee George H. Dunklin, Jr.'s nonvoting shares in Black Inc.; order Tipton to purchase Dunklin's nonvoting shares for the price of $15,619,240; and deny Tipton's motion to conduct discovery on the appraisal. Tipton argues that the circuit court erred by (1) denying her permission to conduct discovery; (2) adopting the appraisal; and (3) concluding that the fair market value (FMV) of the stock was $15,619,240 rather than $15,600,000. Black Inc. similarly argues that the circuit court erred in interpreting the SRA and in adopting the appraisal. We affirm.

I. Facts and Procedural History

Jerry Lee Bogard and Rebecca Winemiller offered Dunklin $20,000,000 for his shares in Black Inc. Under the SRA, Dunklin gave notice of his intent to sell, and Tipton elected to purchase the shares. When a dispute arose about the purchase price and the timing and manner for electing to exercise options under the SRA, Dunklin filed his complaint against Black Inc., its shareholders, Bogard, and Winemiller, seeking a declaration of the parties' rights and obligations under the SRA with respect to the offer.1

*700Dunklin attached to his complaint the $20,000,000 offer and the SRA, which provides that if Dunklin should sell his shares, he must first offer to sell them to his children (who waived their rights) and then to his sister, Tipton.2 The SRA also provides that the FMV of the shares of stock would be by mutual agreement of the selling shareholder and the purchaser. However, if those parties could not agree, FMV would be determined by an appraiser selected jointly by the seller and the purchaser.3

Tipton separately answered Dunklin's motion and counterclaimed, also seeking a declaration of the parties' respective rights and obligations under the SRA. Tipton noted that, even though she and Dunklin had agreed on an appraiser, the firm of Stout Risius Ross, Inc. (SRR), Dunklin still disavowed the validity of Tipton's election and asserted that her window to exercise her option had closed. Black Inc. and the remaining shareholders named in the action answered both motions by affirmatively stating that they wished to protect their rights in the event Tipton's election was found to be invalid, and they filed a motion for preliminary injunction, arguing that the purpose of the SRA was to provide for continuity and harmony among the family members in the management and continued family ownership of Black Inc.

The circuit court issued a temporary restraining order on January 8, 2016, preserving the position of all parties under the SRA as of January 7, 2016. A second hearing was held on January 26, 2016, and the resulting order filed March 7, 2016, states that the parties stipulated that Tipton had elected to purchase and would "put up assets or funds as security on March 12, 2016," for the purchase price. Dunklin and Tipton stipulated that they had jointly agreed to an appraiser. The order provided that Black Inc. would make its election or waiver pursuant to the SRA by March 9, 2016, and provision was made for it to provide security on the purchase of the stock if Tipton's purchase was not accomplished. Paragraph 3 of the order states,

Other undecided issues raised in the pleadings of the parties are reserved by the Court. Dunklin, through counsel, specifically reserved his issues raised in the Complaint about any appraisal received by the parties and the methodology employed by the appraisers.

On August 23, 2016, Tipton filed a "Motion for Leave to Conduct Discovery and Obtain Court Approval of Appraisal." Attached was the final appraisal report of SRR rendered on July 22, 2016. Tipton alleged that, even though Dunklin had never accepted the $20,000,000 offer in writing and the offer contained due-diligence provisions *701and asset-verification provisions that allowed for modification of the amount of the offer, SRR "elected to consider the existence of the offer and afforded it weight in their appraisal." The appraisal report stated that the offer was "arms-length," and the purchasers were considered to have the ability to execute and close on the offer. Based on these conclusions, the ultimate appraisal amount was increased by about $4,300,000.4 Therefore, Tipton asked that she be permitted to conduct formal discovery into the financial ability of Winemiller and Bogard to complete the transaction and into the prior course of any dealings Dunklin had with them. Black Inc. responded that Tipton should be allowed to inquire into the "factors underlying the conclusions reached by the appraiser."

Dunklin filed a status update on August 24, 2016, in anticipation of the status hearing set for August 26. He alleged that the hearing had not been requested by him for the purpose of challenging the appraisal. He stated that he and Tipton had stipulated that they had jointly selected SRR to perform the appraisal "in accordance with the terms of the SRA." He alleged that SRR's final report had been issued and that it was time for the sale to close. Dunklin relied heavily on the stipulation as presented in the circuit court's order of March 7, 2016. He contended that Tipton refused to close and that she sought to delay the closing based on her dissatisfaction with the results of the valuation.

Dunklin also reported that Black Inc. had exercised its preemptive rights under the SRA to purchase Dunklin's nonvoting shares in the event that they were not purchased by Tipton. He asked that Tipton be ordered to either close on or before August 31, 2016, or give notice that she would not close. Dunklin asked that Black Inc. be ordered to close by September 7, 2016, if Tipton failed to close. Black Inc. responded to Dunklin's status update and stated affirmatively that "the appraisal failed to comply with the [SRA] and failed to comply with requirements of the appraisal itself so that such should be construed by the Court, particularly as it related to any purchase by Black Inc."

The circuit court held a hearing on August 26, 2016, and at its conclusion, the circuit court ruled from the bench as follows:

The parties, Mr. Dunklin and Mrs. Tipton in accord with the [SRA] and as affirmed in the Court's order of March 1, 2016, jointly selected SRR to perform the [FMV] appraisal of the stock.
The appraisal process by SRR went through three drafts. Beginning with the first on February 23, 2016. A second on June 11, 2016. And the third and final draft on July 22, 2016. The fair market evaluation reached by SRR in its final-in its final appraisal was $15,619,240.00.... The weight assigned with respect to the Bogard/Winemiller offer increased the value by some $4 million dollars. As noted previously, Mrs. Tipton's position is that SRR gave too much weight to the Bogard/Winemiller offer in that the firm failed to fully explore the financial ability of the ... offerors to complete the purchase and whether the transaction was in fact an arm's-length transaction.

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Bluebook (online)
540 S.W.3d 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-inc-v-dunklin-arkctapp-2018.