STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-1053
DEREK BLAINE BAUMBOUREE
VERSUS
SHARON MECHE BAUMBOUREE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2014-3303 HONORABLE DAVID A. BLANCHET, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, Jimmie C. Peters, Phyllis M. Keaty, and John E. Conery, Judges.
Cooks, J., dissents without reasons.
Saunders, J., dissents and assigns written reasons.
AFFIRMED. G. Bruce Kuehne Kuehne & Foote, APLC 10839 Perkins Road Baton Rouge, LA 70810 (225) 767-7186 COUNSEL FOR DEFENDANT/APPELLANT: Sharon Meche Baumbouree
Andre’ Doguet Attorney at Law 1223 St. John Street Lafayette, LA 70506 (337) 235-7144 COUNSEL FOR PLAINTIFF/APPELLEE: Derek Blaine Baumbouree
Charles J. Boudreaux, Jr. Jones Walker 600 Jefferson Street, Suite 1600 Lafayette, LA 70501 (337) 593-7600 COUNSEL FOR OTHER APPELLEE: Hamilton Medical Group, APC KEATY, J.
Sharon Meche Baumbouree appeals from the trial court’s grant of partial
summary judgment in favor of Derek Blaine Baumbouree, her former husband,
“holding that the stipulated per share value of Hamilton Medical Group, A
Professional Corporation, is $1,000.00 per share as provided in the shareholders’
agreement contained in a Stock Subscription Agreement . . . , which is the
definitive value to be used in [their community property] partition proceeding.”
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Derek and Sharon were married on May 30, 1992, under the legal regime of
community acquets and gains. On May 1, 2001, during the existence of the
community regime, Derek, a pediatrician, purchased one share of stock in
Hamilton Medical Group (HMG), a medical corporation consisting of employee
physician shareholders, for $1,000.00. The stock was issued and registered in
Derek’s name only. On September 18, 2013, the employee/physician shareholders
of HMG executed a Stock Subscription Agreement with an accompanying
Shareholder Agreement, which provided, in pertinent part:
1. PURPOSE
1.1 The purpose of this Agreement is to provide for orderly continuation of the affairs of Corporation in the event of death, incapacity, disqualification or termination of employment of the Shareholders of the Corporation, or the occurrence of other events whereby Shareholder or Corporation seeks to terminate Shareholder status, including but not limited to the occurrence of events specified herein. Such purpose shall be accomplished by the purchase by the Corporation of the shares of stock held by any Shareholder to whom such event has occurred . . . and further that the said Shareholder shall agree to sell the said stock held by the said Shareholder to the Corporation, upon the occurrence of any of the events described herein. 2. PURCHASE AND SALE
2.1 Corporation agrees to purchase and each Shareholder agrees to sell and transfer to the Corporation Shareholder’s stock in the Corporation at the time, for the consideration and in the manner set forth in this Agreement.
3. EVENTS REQUIRING SALE
3.1 Upon the happening of any of the following events, the affected Shareholder or said Shareholder’s estate, shall sell and transfer to Corporation and Corporation shall purchase the share or shares of stock in Corporation held by such Shareholder at the same price for which said Shareholder purchased the share or shares, that price being One-thousand and No/100 ($1,000.00) Dollars per share:
(a) The death of the Shareholder;
(b) The suspension, revocation or cancellation of the Shareholder’s right to practice medicine in the State of Louisiana; (c) The imposition of any restrictions or limitations by any governmental authority having jurisdiction over the Shareholder to such an extent that the Shareholder cannot engage in the professional practice of medicine;
(d) Termination of employment with the Corporation for any reason or cause, or for no cause, as provided in the Employment Agreement between Shareholder and the Corporation, to include voluntary or involuntary termination or retirement of a Shareholder from the practice of medicine[.]
4. VALUATION OF STOCK
4.1 The purchase price of each share of capital stock of the Corporation shall under all circumstances be One-thousand and No/100 ($1,000.00) Dollars. At no time and under no circumstances shall the Corporation be called upon to pay more than One-thousand and No/100 ($1,000.00) Dollars to redeem any share of stock of the Corporation.
....
6. RESTRICTIONS ON OTHER TRANSFERS
6.1 None of the Shareholders of Corporation shall transfer, assign, hypothecate or in any way alienate or encumber any of Shareholder’s shares or any right or interest therein. All shares of stock in the Corporation in the case of sale or transfer by a Shareholder shall be to the Corporation, and shall not be made to any other person or entity other than Corporation. 2 Sharon refused to sign the Shareholder Agreement. Derek filed a petition
for divorce and for judicial partition of community property on June 26, 2014. A
judgment of divorce was rendered on October 13, 2014, terminating the
Baumbourees’ community property regime retroactive to the date the petition was
filed. In connection with the partition, Sharon filed a subpoena duces tecum on
April 29, 2015, requesting that HMG produce various documents pertaining to
HMG’s incorporation, finances and assets, and Derek’s compensation by the
corporation. On May 22, 2015, HMG filed a motion to quash the subpoena and for
a protective order, asserting that the Stock Subscription Agreement executed by
Derek on September 18, 2013 fixed the value of Derek’s stock interest in HMG at
$1,000.00, and thus, Sharon was not entitled to production of the requested
documents.
On June 16, 2015, Derek filed a motion for partial summary judgment,
requesting that the trial court hold that the value of the HMG stock for the purposes
of the partition proceeding was $1,000.00. Derek attached to his motion a personal
affidavit dated June 16, 2015, wherein he attested to the dates of his marriage to
and divorce from Sharon; to his acquisition of one share of HMG stock during his
marriage to Sharon; to his signing of a Stock Subscription Agreement and
accompanying Shareholder Agreement on September 18, 2013, which established
a stipulated stock value of $1,000.00; and to the fact that the provisions of the
agreements were still in force and had not been modified or amended. Also
attached to Derek’s motion was an affidavit from Louise Derise, the Administrator
and CFO of HMG, dated June 11, 2014. Ms. Derise attached a copy of the
September 18, 2013 Stock Subscription Agreement and Shareholder Agreement to
3 her affidavit, and she stated that the agreements were “in full force and effect” and
had not been amended or modified.
Sharon opposed the motion, arguing that the HMG stock was community
property and that she cannot be bound by a Shareholder Agreement that she did not
sign. She further argued that the Shareholder Agreement could not be used to
value the HMG stock because it fixed the value of the stock only upon the
occurrence of the four events, i.e., the death of a Shareholder; the suspension,
revocation or cancellation of the Shareholder’s right to practice medicine in
Louisiana; the imposition of any restrictions or limitations of a Shareholder’s
ability to engage in the professional practice of medicine; or the termination of a
Shareholder’s employment with the Corporation, none of which had occurred.
Because the Shareholder Agreement failed to mention divorce and/or partition of
community property, Sharon contended that it could not be used to set the value of
the stock in her and Derek’s partition. Finally, Sharon argued that Louisiana law
does not permit one spouse to “unilaterally declare that certain property is not
community, or to establish a value for community partition purposes, without the
consent of the other spouse.” Sharon attached to her opposition memorandum an
affidavit by Mark Shirley, a CPA, who stated that he had been asked by counsel for
Sharon to provide a value to Derek’s medical practice. Mr. Shirley stated that to
do so, he needed to identify and quantify two “distinct intangible assets,” goodwill
and going concern value. According to Mr. Shirley, the fair market value of the
HMG stock needed to be determined in the context of the Baumbourees’ partition,
but the “subjective and static stated value contained in the shareholder agreement
excludes all of the necessary elements which must be considered in quantifying
either the ‘fair market value’ or ‘fair value’ of the community property.” Finally,
Mr. Shirley stated that the only function of a stated stock value such as the one in 4 the HMG Shareholder Agreement was “to penalize the member/shareholder upon
exiting the practice.” Sharon also attached to her opposition a personal affidavit
dated July 6, 2015, wherein she stated that she and Derek were physically
separated and contemplating divorce when he tried to get her to sign the
Shareholder Agreement in late 2013. At that time, Derek told her that the purpose
of the document was to protect the company, that it would not affect her, and that it
had nothing to do with their divorce.
Following a contradictory hearing, the trial court sustained Derek’s motion
for partial summary judgment and designated the judgment as final for purposes of
immediate appeal.1 Sharon appealed and is now before this court asserting that:
1. The Trial Court erred in holding, without factual basis in the Shareholder Agreement, that an arbitrary price ($1,000 - not based on any indicia of financial value) requiring sale or redemption of the ownership interest in HMG upon Derek’s death, inability to practice medicine, or termination of employment, also governed the “value,” determined pursuant to La. R.S. 9:2801A(4)(a), of the use and enjoyment of ownership interest while Derek continued to practice medicine with HMG.
2. The Trial Court erred in holding that a spouse in whose name an asset is registered may unilaterally, without the consent of the other spouse, by a contract which does not purport to pertain to a partition action, determine the value of community property in a partition action, thus usurping the duty to “value the assets” of the former community, which duty is assigned to the trial court by La. R.S. 9:2801A(4)(a).
3. The Trial Court erred in considering itself bound by a valuation method which is inconsistent with Louisiana law.
DISCUSSION
Appellate courts review summary judgment motions de novo, giving no
weight to the trial court’s judgment. Covington v. McNeese State Univ., 08-505
(La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La. 3/6/09), 3 So.3d
1 The trial court also granted HMG’s motion to quash the subpoena filed by Sharon; that ruling is not at issue in this appeal. 5 491. “The summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action . . . . The procedure is favored and
shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). “The
judgment sought shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions, together with the affidavits, if any, admitted for
purposes of the motion for summary judgment, show that there is no genuine issue
as to material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ.P. art. 966(B)(2), amended by 2015 La. Acts No. 422, § 1. The
burden of proof is on the mover. La.Code Civ.P. art. 966(C)(2), amended by 2015
La. Acts No. 422, § 1.
Unless they validly contract otherwise, spouses domiciled in Louisiana are under the legal regime of community acquets and gains. La.Civ.Code arts. 2328 and 2334. The property of married persons is either community or separate. La.Civ.Code art. 2335. Community property includes all property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse. La.Civ.Code art. 2338. The community is a patrimonial mass that includes both assets and liabilities. La.Civ.Code art. 2336 cmt. (c). Each spouse owns a present undivided one-half interest in the community property. La.Civ.Code art. 2336.
Succession of Moss, 00-62, pp. 4-5 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, 618,
writ denied, 00-2834 (La. 12/8/00), 776 So.2d 462.
Ownership of a thing is defined by our Civil Code. It is “the right that
confers on a person direct, immediate, and exclusive authority over a thing. The
owner of a thing may use, enjoy, and dispose of it within the limits and under the
conditions established by law.” La.Civ.Code art. 477(A). In a partition action,
“[t]he court shall value the assets as of the time of trial on the merits, determine the
liabilities, and adjudicate the claims of the parties.” La.R.S. 9:2801(A)(4)(a).
“[E]ach party shall file a sworn detailed descriptive list of all community property,
the fair market value and location of each asset, and all community liabilities.”
6 La.R.S. 9:2801(A)(1)(a). Thereafter, “[t]he court shall divide the community
assets and liabilities so that each spouse receives property of an equal net value.”
La.R.S. 9:2801(A)(4)(b).
Although generally either spouse acting alone may manage, control or dispose of community property, La.Civ.Code art. 2346, the Civil Code tempers this right with regard to certain property. Each spouse has the exclusive right to manage or encumber movables issued or registered in his or her name as provided by law. La.Civ.Code art. 2351 (emphasis added). Shares of stock are incorporeal movables. La.Civ.Code art. 473. Stock issued in the name of a spouse is subject to management by that spouse exclusively.
Succession of Moss, 769 So.2d at 620. “A spouse is liable for any loss or damage
caused by fraud or bad faith in the management of the community property.”
La.Civ.Code art. 2354.
Central to each of Sharon’s assignments of error is her assertion that the trial
court erred in concluding that the stock in HMG had a value of $1,000.00 for the
purposes of the partition. For the following reasons, we find Sharon’s argument to
be fundamentally flawed. In Succession of Moss, 769 So.2d 614, this court held
that transfer restrictions affecting community property consisting of corporate
stock that were contractually agreed to by one spouse are binding on the non-
contracting spouse. Coury Moss, Inc. was a closely held corporation formed by
William J. Moss and A. Sam Coury to operate an automobile dealership. Moss and
Coury entered into Shareholders’ Agreement which required that upon the death of
either of them, their heirs or representatives were required to transfer any stock in
excess of 25% of the total shares back to the corporation at book value. After
Moss’ death, his succession representative and surviving spouse argued that her
shares of former community stock were not bound by the restriction. We upheld
the restriction, rejecting the argument that a spouse “enjoys the contractual
freedom to acquire community property but is precluded from contractually
7 regulating that acquisition.” Succession of Moss, 769 So.2d at 619. In doing so,
we reasoned:
By their express terms, the Articles of Incorporation “bind and obligate” not only the two incorporating shareholders, but also “such other persons who may hereafter join or become associated with them or their successors.” Since this restrictive contract was executed during the existence of the community and affected community property, the obligation it created is a community obligation. La.Civ.Code art. 2361; Cutting v. Cutting, 625 So.2d 1112 (La.App. 3 Cir.1993), writ denied, 93-2770 (La.1/7/94); 631 So.2d 453. Mrs. Moss’ ownership interest in the stock does not give her autonomous control over the stock; rather, her interest is subject to the transfer at death restrictions in the Articles of Incorporation.
Id. at 621.
Later, in Rao v. Rao, 05-59, p. 3 (La.App. 1 Cir. 11/4/05), 927 So.2d 356,
359, writ denied, 05-2453 (La. 3/24/06), 925 So.2d 1232, the first circuit held that
a restriction signed by a physician spouse in stockholders’ agreement concerning a
physician-owned corporation “establishing a stipulated value of $25,000.00 for the
stock of each equal stockholder in the event of resignation, death, or termination as
a stockholder, or in the event of divorce” was binding on the non-employee spouse
in the context of a partition proceeding incident to their divorce. In rejecting the
former wife’s attempt to not be bound by the transfer restrictions, the first circuit
explained:
The evidence clearly supports the conclusion that the hypothetical value postulated by Mrs. Rao’s expert accountant was largely based upon goodwill attributable to the personal qualities and patient relationships of Dr. Rao and his fellow stockholder physicians using the corporate facilities as part of their professional practice. . . . It is inappropriate to use such goodwill attributable to Dr. Rao in the valuation of community corporate stock. See La. R.S. 9:2801.2. See also Preis v. Preis, 94-442, pp. 6-7 (La.App. 3rd Cir.11/2/94), 649 So.2d 593, 595-96 and Depner v. Depner, 478 So.2d 532, 534 (La.App. 1st Cir.1985), writ denied, 480 So.2d 744 (La.1986). Although the issue has not been specifically addressed by the legislature and seems to be res nova, we conclude it is likewise inappropriate to incorporate goodwill attributable to the personal, professional qualities of the other physician stockholders in such valuation. See 16 Katherine S. Spaht and Richard D. Moreno, 8 Louisiana Civil Law Treatise: Matrimonial Regimes § 7.27 (2nd ed.1997; 2004 pocket part).
Stock transfer restrictions do not affect ownership of the stock; they merely qualify the privilege of disposition of the stock. Mestayer v. Williams, 569 So.2d 1102, 1106-7 (La.App. 3rd Cir.1990). Because stock transfer restrictions such as the sell/buy provisions at issue do not alter the nature of the legal matrimonial regime or the classification of stock acquired during marriage as community property, they do not constitute prohibited matrimonial agreements under La. C.C. art. 2329. Guidry v. Guidry, 01-1615, p. 4 (La.App. 3rd Cir.10/30/02), 830 So.2d 570, 572. The latter case involved the divorce of an attorney shareholder of a legal corporation. He and his wife had executed a shareholders agreement and stock subscription agreement which set forth an agreed-upon method of disposition and valuation of shareholder stock in the event of divorce. The appellate court found that the agreements were “valid interspousal contracts which are binding in that we find no derogation of law or public policy.” Id.
The evidence shows that the object of the Amended Stockholders Agreement’s sell/buy and stock valuation provisions was to establish a stipulated, binding value of equal stock interests in a close corporation with a specialized purpose, in the event of any stockholder’s death, termination of ownership, or divorce, and to effect an orderly transfer of ownership according with the corresponding change in ownership interest in the medical group. That object is not contrary to public policy; thus, it is not absolutely null as contra bonos mores. See La. C.C. arts. 7, 2030. See also 7 Glenn G. Morris and Wendell H. Holmes, Louisiana Civil Law Treatise: Business Organizations § 29.10 (1999).
Shares of stock issued in the name of a spouse are subject to management by that spouse exclusively. La. C.C. art. 2351, Revision Comment (a) (1979). See also La. C.C. art. 2352. The undisputed evidence in the record shows that the stock certificate at issue, evidencing ownership of fifty shares of common stock of Louisiana Endoscopy Center, Inc., was issued in Dr. Rao’s name only. Thus, Dr. Rao clearly had the right to execute both the original and the Amended Stockholders Agreement, thereby subjecting the stock to the terms of the transfer restrictions and the stipulated stock value, without Mrs. Rao’s written assent. Succession of Moss, 00-62, p. 10 (La.App. 3rd Cir.6/21/00), 769 So.2d 614, 620, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462. A stock transfer agreement which is unambiguous, clearly sets forth its terms, and is executed by capable parties is enforceable. Id., 00-62 at p. 10, 769 So.2d 614, 620-21. The sell/buy provisions of Articles IV and VI were valid and binding stock transfer restrictions, and clearly governed the valuation of the stock.
Id. at 365-67. 9 We find the salient facts of the instant case indistinguishable from the facts
presented in Rao. In both instances, a non-employee spouse is attempting to avoid
being bound, in the context of a community property partition, by a stock valuation
agreed to by her physician/shareholder ex-spouse with regard to stock in a medical
corporation owned by him and other physician stockholders. As in Rao, although
the stock issued in the name of the physician/shareholder spouse only is a
community asset, the physician/shareholder spouse had the exclusive right to
manage that stock. Thus, the fact that Sharon did not sign the Shareholder
Agreement does not prevent the application of the stock valuation contained
therein. Further, as noted by the Rao court, the purpose of the valuation of the
stock in a “close corporation,” such as a medical practice, is “not contrary to public
policy,” but instead has the purpose of effecting “an orderly transfer of ownership”
should one of the physician shareholders have to leave the practice. Rao, 927
So.2d at 366. In Rao, the first circuit held that “[i]t is inappropriate to use such
goodwill attributable to Dr. Rao in the valuation of community corporate stock”
and “it is likewise inappropriate to incorporate goodwill attributable to the personal,
professional qualities of the other physician stockholders in such valuation.” Id. at
365-66. Accordingly, the assertions made by CPA Mark Shirley in the affidavit
submitted by Sharon regarding the need to quantify the goodwill or going concern
value of HMG or any of its physician shareholders are irrelevant as it would be
inappropriate to incorporate such values in the Baumbourees’ partition. Finally,
Sharon would have a remedy under La.Civ.Code art. 2354 if she were to prove that
Derek acted fraudulently or in bad faith in signing the Shareholder Agreement, but
no such proof was made in this case. Along those lines, we note that if Derek is
forced to sell his one share of HMG stock back to the corporation upon the
10 occurrence of any of the triggering events found in Section 3.1 of the Shareholder
Agreement, he will only be paid $1,000.00 as fixed in that agreement.
After having performed a de novo review, we are convinced that the law
supports Derek’s position and, thus, we conclude that partial summary judgment
was properly granted in his favor.
DECREE
The judgment of the trial court granting partial summary judgment in favor
of Derek Blaine Baumbouree is affirmed. All costs of this appeal are assessed to
Sharon Meche Baumbouree.
AFFIRMED.
11 STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
I disagree with the majority opinion that Sharon’s argument that the trial
court erred in concluding that the stock in HMG had a value of $1,000.00 for the
purposes of partition is “fundamentally flawed.”
Unless they validly contract otherwise, spouses domiciled in Louisiana are under the legal regime of community acquets and gains. La.Civ.Code arts. 2328 and 2334. The property of married persons is either community or separate. La.Civ.Code art. 2335. Community property includes all property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse. La.Civ.Code art. 2338. The community is a patrimonial mass that includes both assets and liabilities. La.Civ.Code art. 2336 cmt. (c). Each spouse owns a present undivided one-half interest in the community property. La.Civ.Code art. 2336. Moss, 769 So.2d at 618.
In general, community property may be managed, controlled, or disposed of
by either spouse acting alone. La.Civ.Code art. 2346; Moss, 769 So.2d 614.
However, “[a] spouse has the exclusive right to manage, alienate, encumber or
lease movables issued or registered in his name as provided by law.” La.Civ.Code
art. 2351. Shares of stock are incorporeal movables, La.Civ.Code art. 473, and
may be managed exclusively by the spouse in whose name they are registered.
La.Civ.Code art. 2351 cmt. (a); Moss, 769 So.2d 614. Restrictions on the transfer of corporate stock are valid. Louisiana Weekly
Pub’g. Co. v. First Nat’l. Bank of Commerce, 483 So.2d 929 (La.1986). Transfer
restrictions do not affect the ownership of the stock in the community, and the
spouse in whose name they are not registered still has an undivided one-half
interest in it. See e.g. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169;
Moss, 769 So.2d 614. Instead, such restrictions “merely qualify the privilege of
disposition of the stock.” Rao v. Rao, 927 So.2d 356 (La.App. 1 Cir. 2005), writ
denied, 925 So.2d 1232 (La. 2006).
In light of these principles of law, it is clear that a spouse in whose name
stock is registered has the authority to execute a stock subscription agreement
containing transfer restrictions. Thus, there is no doubt that Derek had the
exclusive authority to execute the stock subscription agreement restricting the
transfer of the stock upon his death, inability to practice medicine, or termination
of employment back to the corporation for the agreed upon price and that such a
restriction is valid. However, at the crux of the instant dispute is Derek’s assertion
that, because the terms of the stock subscription agreement prohibits him from
transferring the stock to any other person or entity besides the corporation for the
agreed upon price of $1,000.00, such is the value that must be used for the
purposes of partition. I disagree.
Ownership of a thing is defined by our Civil Code. It is “the right that
confers on a person direct, immediate, and exclusive authority over a thing. The
owner of a thing may use, enjoy, and dispose of it within the limits and under the
conditions established by law.” La.Civ.Code art. 477(A). In a partition action, the
assets of the community must be valued. La.R.S. 9:2801(4)(a). Then, each of the
assets is allocated or assigned to the spouses. “The court shall divide the
2 community assets and liabilities so that each spouse receives property of an equal
net value.” La.R.S. 9:2801(4)(b).
We find no authority that supports Derek’s assertion that the value of the
stock for the purposes of partition following a divorce of the shareholder spouse is
$1,000.00 because the stock subscription agreement requires the stock be
transferred to the corporation for the price of $1,000.00 in the event that the
shareholder dies, becomes unable to practice medicine, or terminates his
employment with HMG. The stock agreement certainly sets the value of the
disposition of the stock in the enumerated circumstances. However, the stock
subscription agreement does not purport to value the stock except in the event of
its disposition in those limited circumstances. In other words, the agreement does
not purport to set the value of the use and enjoyment of the stock, but only the
value of its disposition should Derek die, become ineligible to practice medicine,
or terminate his employment with HMG.
Ownership of the stock in the instant matter inured to Derek a multitude of
benefits and, thus, had value to Derek outside of a disposition in the few
enumerated circumstances. In opposition to Derek’s motion, Sharon submitted the
affidavit of Mark Shirley, CPA, which identifies “[t]wo distinct intangible assets:
[that] require identification and quantification” in the partition action. These assets
are goodwill and going concern value. Counsel for Derek submitted no evidence to
controvert the affidavit of Mr. Shirley. These assets must be valued and
partitioned to determine the value of the corporation and, thus, Derek’s interest in
it as a shareholder. See Landry v. Simon, 98-1386 (La.App. 3 Cir. 3/17/99), 732
So.2d 587, writ denied, 99-1050 (La. 5/28/99), 743 So.2d 672; McDonald v.
McDonald, 40,035 (La.App. 2 Cir. 8/17/05), 909 So.2d 694. Moreover, ownership
of the HMG stock gives the shareholder voting rights, a right to receive dividends
3 or distributions, and a right to receive a share of the proceeds upon liquidation.
See Louisiana Business Corporation Act, La.R.S.12:1-101 et. seq. Each of these
rights inures some benefits to Derek, and such must be valued for the purposes of
the partition.
My conclusion is not without authority. In Borrello v. Borrello, 614 So.2d
91 (La.App. 4 Cir. 1992), writ denied, 616 So.2d 706 (La.1993), a former spouse
of a partner in a law firm sought discovery of certain financial documents
pertaining to the law firm for the purpose of valuing the partner spouse’s interest in
the firm. The law firm moved to quash a subpoena duces tecum requesting
production of the documents and the motion was granted. On appeal, the former
wife asserted that the trial court erred in denying discovery of the requested
documents on the grounds that they were necessary to determine the value of the
former husband’s partnership interest. The law firm argued that the former wife
was bound by the partnership agreement, which purported to value the former
husband’s interest in the partnership. The fourth circuit held that the former wife
“should be permitted to discover information necessary for her to establish the
value of her husband’s partnership interest beyond the value set forth in the
partnership agreement.” Id. at 94.
In Fastabend v. Fastabend, 606 So.2d 794, 798 (La.App. 3 Cir.), writ
denied, 609 So.2d 231 (La.1992), the former husband, a physician, argued that the
trial court erred in including the accounts receivable of a medical practice in
calculating the value of his interest in the medical partnership, on the grounds that
the partnership agreement provided that “[n]o partner shall have or own any
interest nor have any claim or right in and to the accounts receivable or any other
asset of the partnership.” This court rejected that argument, finding that the
accounts receivable were an asset of the partnership and must be valued to
4 determine the value of the partnership, in order to determine the former husband’s
interest in that partnership. This court noted, in particular, that nothing in the
partnership agreement prohibited the accounts receivable from being valued in
such a manner.
In the instant matter, it is clear that the Shareholder’s Agreement establishes
the value for the disposal of the stock in the event of the death of a shareholder, the
inability of the shareholder to practice medicine, and termination of the
shareholder’s employment with the corporation. However, none of these
circumstances are present in the instant matter. Thus, the trial court must ascertain
the value of the stock outside of its disposition. Accordingly, I respectfully
dissent as I would remand to the trial court for further proceedings.