Dickie v. Flamme Bros.

560 N.W.2d 762, 251 Neb. 910, 1997 Neb. LEXIS 63
CourtNebraska Supreme Court
DecidedMarch 7, 1997
DocketNo. S-95-281
StatusPublished
Cited by51 cases

This text of 560 N.W.2d 762 (Dickie v. Flamme Bros.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickie v. Flamme Bros., 560 N.W.2d 762, 251 Neb. 910, 1997 Neb. LEXIS 63 (Neb. 1997).

Opinion

White, C.J.

Flamme Brothers, Inc., the appellant, is a Nebraska corporation which was incorporated on October 1, 1979. All of the common stock is owned by Velma Dickie, the appellee; her two sons, Vernon Flamme and Donald Flamme; Vernon Flamme’s wife, Sharon; and Donald Flamme’s wife, Veronica. On September 19, 1986, Dickie filed a petition in district court for an involuntary dissolution of the corporation. Dickie alleged as a basis for dissolution that the directors were deadlocked in the management of corporate affairs and that the shareholders were unable to break the deadlock. At that time, Vernon Flamme was serving as president of the corporation.

Donald and Veronica Flamme, intending to resist Dickie’s claims, filed a motion for leave to intervene on October 26, 1986. The court granted their motion on November 3 and ordered them to file a petition in intervention within 14 days. Pursuant to their answer, Donald and Veronica Flamme denied that the directors were deadlocked in the management of corporate affairs. In addition, they raised two affirmative defenses: (1) There was no true majority or controlling ownership in the corporation, and (2) Dickie failed to state a cause of action against the corporation.

In March 1987, Donald and Veronica Flamme filed a counterclaim stating, in part, that since Dickie, Vernon, and Sharon Flamme had proceeded with liquidation, Donald and Veronica Flamme believed it would be in the best interests of the corporation for the court or a receiver to carry out the liquidation proceedings. Donald and Veronica Flamme requested that (1) the involuntary dissolution be set for trial, (2) the court appoint a receiver, (3) all activities be subject to an accounting, (4) any acts of unauthorized persons be set aside, and (5) the court preserve corporate assets.

In the spring of 1987, the corporation liquidated a substantial amount of farming equipment and real property. Proceeds were [912]*912held by Fremont National Bank, which was designated as trustee for Platte Valley Bank and Flamme Brothers.

At a pretrial conference held on September 1, 1987, the case was generally discussed, and the court stated that it would appoint James A. Gallant as receiver. The court ordered that “[t]he Receiver shall conduct an inventory, and initial report and a plan for liquidation of the assets within 30 days of appointment.” Gallant was appointed as receiver on September 22.

As of September 1987, obligations were owed by the corporation to Platte Valley Bank, the Federal Land Bank, and the Farmers Home Administration (FmHA). On October 9, receiver entered into three settlement agreements in an attempt to satisfy these significant outstanding corporate debts. The first agreement was entered into by Wolf Insurance Agency and the corporation. The corporation was indebted to Wolf Insurance Agency in the sum of $24,777.62, with interest accruing at a rate of 12 percent per annum from March 17, 1987. The parties agreed that the corporation would be released from all debt owed to Wolf Insurance Agency for the sum of $10,593.45, which had been deposited into a trust account with Fremont National Bank.

The second agreement was. entered into by Platte Valley Bank; the corporation; Ames Elevator, Inc.; and Vernon and Sharon Flamme. The agreement, in part, addressed the manner in which the corporation would satisfy its debt to Platte Valley Bank. The debt totaled $698,600. A portion of said debt, $400,000, had been guaranteed by FmHA. Pursuant to the agreement, the proceeds from sales conducted in the spring of 1987 and held by Fremont National Bank were to be paid to Platte Valley Bank. In addition, the corporation was to pay a total of $78,500. Also, Platte Valley Bank would be entitled to collateral currently owned by the corporation and listed in exhibits incorporated into the contract. Finally, the contract recognized that five center pivot irrigation systems, which constituted collateral for the loan guaranteed by FmHA, were to be sold with the real property mortgaged by the Federal Land Bank and owned by the corporation. Platte Valley Bank would be entitled to the portion allocated to the pivots. Such portion [913]*913would have to be acceptable to the FmHA and based on appraisals from qualified expert appraisers.

Pursuant to the agreement, Platte Valley Bank agreed to engage in the process generally known as “PIK and Roll.” According to such arrangement, Platte Valley Bank would extend an ongoing line of credit in favor of the corporation for any sum up to $30,000 to be used to purchase PIK certificates. Platte Valley Bank would be repaid upon the retirement of the PIK certificates and the sale of 1986 grain.

The third agreement was entered into by Ames Elevator, Donald and Veronica Flamme, Vernon and Sharon Flamme, Dickie, and receiver. Pursuant to this agreement, the four Flammes and receiver agreed in part (1) that they would enter into an agreement with the FmHA that would allow all assets secured to the FmHA to be sold by receiver; (2) that they would concur as to the value to be placed on each parcel of real property; (3) that the decision of receiver agreed upon with the Federal Land Bank and FmHA would be binding upon the Flammes; (4) that the corporate and jointly owned farm ground would be placed as soon as possible on an open listing basis; (5) that any private parties that had an interest in the parcels would be excepted from the open listing agreement; (6) that attorney fees and accounting fees necessary to wind up the affairs of the corporation would be paid from the remaining assets of the corporation upon liquidation (as security for said fees, the parties were granted a lien against the land legally described as the east half of the southeast quarter of Section 8, Township 18, Range 6 in Dodge County, Nebraska, and part of the east half of the northeast quarter, Section 7, Township 18, Range 6 in Dodge County, Nebraska); (7) that Donald and Vernon Flamme would be paid by the corporation the sum of $8,000 for unpaid land rental from 1986; and (8) that Vernon and Sharon Flamme would be paid by the corporation the sum of $5,250 for unpaid salary through March 31, 1987.

Receiver filed a motion for approval of the first and second settlement agreements on November 2, 1987. Said agreements were approved by the court on that same day. Receiver filed an additional motion for approval of the third agreement on November 16. Said agreement was approved by the court that same day.

[914]*914In April 1988, receiver filed a motion for approval of sale of irrigation equipment and pipe to Vernon Flamme. Such sale was conditioned upon the approval of the FmHA and Platte Valley Bank. The sale was approved by the court on April 18.

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Cite This Page — Counsel Stack

Bluebook (online)
560 N.W.2d 762, 251 Neb. 910, 1997 Neb. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickie-v-flamme-bros-neb-1997.