Estate of Penzenik v. PENZ PRODUCTS, INC.

800 N.E.2d 1007, 2003 Ind. App. LEXIS 2412, 2003 WL 23095921

• Court: Indiana Court of Appeals
• Decided: December 31, 2003
• Docket: 71A05-0304-CV-192
• Status: Published

Opinions

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

The Estate of Gregory Penzenik ("the Estate") and the Gregory Penzenik Trust ("the Trust") (collectively "the Appellants") appeal the trial court's judgment requiring the Trust to sell its shares of Penz Products, Inc. ("Penz") pursuant to a 1991 Stock Sale and Purchase Agreement ("the Agreement"). The Appellants present several issues for our review, but we address a single dispositive issue, namely, whether the trial court erred when it found that the Trust is required to sell its shares to Penz under the Agreement.

We reverse.¹

FACTS AND PROCEDURAL HISTORY

This court has previously addressed the facts underlying the issues presented in this appeal. In a separate action involving the same parties, we explained the facts and procedural history as follows:

Penz is a closely held corporation owned by members of the Penzenik family. In 1991, the shareholders executed the Agreement, which purported to require the sale of all shares back to Penz upon a shareholder's death.

By 1998, Penz was owned entirely by three brothers, David, Richard, and Gregory. On July 25, 1998, Gregory died. Gregory's widow, Linda, opened his estate in August 1998 and issued the first notice to creditors on September 3, 1998. On December 4, 1998, Penz filed a document in the Estate proceedings styled "Appearance of Interested Party" (Appearance), which stated:

"Comes now and enters [its] appearance in this estate and request[s] that [Penz's counsel] be served and/or provided with copies of all further pleadings and notices of all further hearings in this estate. This request is made because [Penz] possess[es] certain vested rights and obligations under Stockholder By-Sell [sic] Agreements and/or other agreements to which the decedent was a party.

The intangible property, pending execution of the aforesaid Buy Sell Agreements appears to be a present conditional asset of the estate which [Penz] hafs] requested to repurchase in conformity with the prior agreements."

On January 19, 1999, Penz served the Estate with a formal demand that it comply with the terms of the Agreement and sell Gregory's shares of Penz to Penz. After protracted negotiations, the parties were unable to reach an agreement as to the appropriate price for the shares. Accordingly, on April 5, 1999, Penz filed a "Petition to Enforce Compliance with Buy-Sell Agreement," requesting that the trial court order the Estate to sell the shares.

After a trial at which the proper interpretation of the Agreement was hotly contested, the court found that the Estate was required to sell the shares to Penz. The Estate now appeals.

Estate of Penzenik v. Penz Products, Inc., 749 N.E.2d 61, 62-63 (Ind.Ct.App.2001) ("Pengenik I ").

In Pengenik I, the Estate raised several issues on appeal, but we addressed a single dispositive issue, namely, whether Peng's petition for specific performance was timely filed under Indiana Code Section 29-1-14-21. We noted that under that statute, such a petition must be filed within five months of the date of the estate's first published notice to creditors. And we held that Penz's petition was not timely filed. But we also stated that "[ulnlike the general claim statute, under which an untimely claim is forever barred, the consequence of a failure to file a timely claim under IC 29-1-14-21 is that the claimant must proceed against the distributees, rather than the estate." Penzenik I, 749 N.E.2d at 64-65.²

While Pengenik I was pending in the trial court, the Estate filed a complaint against Penz for breach of fiduciary duty and minority shareholder oppression. Penz answered and filed a counterclaim seeking specific performance and declaratory relief. 'Then, following our decision in Pengenik I, Penz moved the trial court for leave to file an amended counterclaim adding "parties unknown who are either trustees ... [of the Trust or] its beneficiaries." Thereafter, Penz moved the trial court for leave to file a second amended counterclaim adding the Trust and its trustees as counterdefendants. The trial court granted that motion. Penz's second amended counterclaim consisted of counts for: (1) specific performance; (2) declaratory relief; and (8) pursuit of frivolous claims in bad faith. '

The Appellants moved to dismiss Peng's second amended counterclaim, but the trial court denied that motion. The Appellants then asked the trial court to reconsider its motion to dismiss in light of this court's opinion in F.B.I. Farms, Inc. v. Moore, 769 N.E.2d 688 (Ind.Ct.App.2002), vacated by 798 N.E.2d 440 (Ind.2003). But the trial court denied the motion to reconsider. The Appellants then filed their answer to Penz's second amended counterclaim.

Following a hearing, the trial court entered a "case management order re[:] bifurcated triall,]" which provided in relevant part that the court would "try separately Counts I and II of the Defendants and - Countercelaimants - Second Amended Counterclaim ..., deferring trial on the Estate's complaint and Count III of the Counterelaim[.]" The order also stated in relevant part as follows:

1. The trial shall resolve all issues raised in Counts I and II of the Counterclaim and the answer thereto by the [Estate], [the Trust] and Brandon Pen-zenik. >

2. The evidence to be considered by the Court consists of the following:

(a) the record of proceedings submitted to the Court of Appeals in [Pengenik I ], which has been lodged with the Court;

(b) the Estate and [the] Trust's responses to Defendants and Counterclaimants' First Set of Requests for Admission and Second Set of Interrogatories insofar as they relate to Counts I and II of the Counterclaim; '

(c) stipulations which the parties may agree to;

(d) to the extent the parties are unable to stipulate as to facts either side claims are relevant to these proceedings, the Court shall make available no more than two hours within which to receive any evidence by way of live testimony or exhibit, or both.

On March 5, 2008, the trial court issued findings and conclusions and entered judgment in favor of Penz. The trial court ordered the Trust to sell Penz "all shares in Penz Products, Inc. previously owned by decedent Gregory Penzenik and now held by [the Trust.]" This appeal ensued.

DISCUSSION AND DECISION

In Peoples Bank & Trust, Co. v. Price, 714 N.E.2d 712, 716-17 (Ind.Ct.App.1999), trans. denied, this court set out the applicable standard of review as follows:

Construction of the terms of a written contract is a pure question of law for the court; thus, our standard of review is de novo. The unambiguous language of a contract is conclusive upon the parties to the contract and upon the courts. If the language of the instrument is unambiguous, the intent of the parties is determined from the four corners of that instrument. If, however, a contract is ambiguous or uncertain, its meaning is to be determined by extrinsic evidence and its construction is a matter for the fact finder.

In interpreting a written contract, the court should attempt to determine the intent of the parties at the time the contract was made as discovered by the language used to express their rights and duties. The contract is to be read as a whole when trying to ascertain the intent of the parties. The court will make all attempts to construe the language in a contract so as not to render any words, phrases, or terms ineffective or meaningless. The court must accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the provisions to be conflicting. Moreover, in the absence of anything to indicate a contrary intention, writings executed at the same time and relating to the same transaction or subject matter will, as a general proposition, be construed together.

Parol or extrinsic evidence is inadmissible to expand, vary, or explain the instrument unless there has been a showing of fraud, mistake, ambiguity, illegality, duress or undue influence. The existence of express terms in a valid written contract precludes the substitution of any implied terms regarding the subject matter covered by the express terms. This principle is especially true in Indiana because our courts will zealously defend the freedom to contract.

(Citations omitted).

In this case, the Appellants make several different arguments in support of their contention that the Trust is not required to sell its shares to Penz under the Agreement. But we address a single dispositive issue the Appellants raise, namely, whether the Agreement applies to the transfer of shares by will. We conclude that it does not.

Initially, we note that Penz asserted for the first time at oral argument that the Appellants' claims are barred by the doctrines of res judicata and law of the case. Specifically, Penz interprets our holding in Pengenik I to mean that we have already decided that Penz can maintain a claim against the Trust under the terms of the Agreement. We cannot agree. In Pengenik I, we merely observed that Indiana Code Section 29-1-14-21 did not bar Penz's efforts to enforce the Agreement by seeking recourse against the distributees. Penzenik I, 749 N.E.2d at 65. We expressly stated that we were addressing only a single issue in Pengenik I, namely, whether Penz's petition for specific performance was timely filed.

The Agreement is entitled "Stock Sale and Purchase Agreement." Following a short list of recitals,³ the first substantive paragraph, entitled "Restriction on Sale of Stock," reads as follows:

So long as this Agreement shall remain in foree and effect no Stockholder shall transfer or in any way encumber his shares of stock in the Corporation to any person, firm or corporation except by Will or gift without the consent of all other Shareholders and of the Corporation, other than as hereinafter provided.

(Emphasis added). Appellants maintain that the plain meaning of the language in that paragraph indicates that "a Shareholder can transfer shares outside the bounds of the Agreement" by will, by gift, or with the consent of all other Shareholders. Penz counters that the Agreement expressly creates a right for Penz "to purchase stock from any deceased sharehold-erl,]" whether the stock passes by intestate succession or by will.⁴

Our supreme court recently addressed the general principles governing restrictions on stock transfers in F.B.L. Farms, Inc. v. Moore, 798 N.E.2d 440 (Ind.2003). The court noted that Indiana Code Section 28-1-26-8 authorizes restrictions on the transfer of shares based on the theory that owners of a corporation should be permitted to control its ownership and management and "prevent outsiders from inserting themselves into the operations of the corporation." Id. at 445. And the court stated that "[alpart from any statutory requirements, restrictions on transfer [of stock] are to be read, like any other contract, to further the manifest intention of the parties." Id. at 445-46. Moreover, "[blecause they are restrictions on alienation and therefore disfavored, the terms in the restrictions are not to be expanded beyond their plain and ordinary meaning." Id. at 446.

In F.B.I. Farms, our supreme court observed that the transfer restrictions at issue in that case ⁵ "seem[ed] to contemplate restricting all transfers, voluntary and involuntary, by providing that no stock of the corporation should be 'transferred, assigned, exchanged, divided, or sold' without complying with the restrictions." Id. at 449. And the court held, "(tlhe intent of the parties is thus rather plain: to restrict ownership to the designated group, and to preclude transfer by any means." Id. (Emphasis added). Finally, the court held that "[Ilf the language [of an agreement restricting stock transfers] purports to bar all transfers, and by its terms would apply to intestacy, devise or any other means of transfer, it should be given effect unless the restriction violates some policy." Id.

By contrast, here, the plain and ordinary meaning of the unambiguous terms of the Agreement indicates that the parties intended to exclude transfers by will or gift from the transfer restrictions. Unlike the share transfer restrictions in FBL. Farms, the restrictions under the Agreement here do not apply to all transfers of stock. Rather, the plain language states that the Agreement restricts the transfer or encumbrance of each shareholders' stock "except by Will or gift." (Emphasis added).

The first substantive paragraph of the Agreement could have been drafted to read as follows:

So long as this Agreement shall remain in force and effect no Stockholder shall transfer or in any way encumber his shares of stock in the Corporation to any person, firm or corporation without the consent of all other Shareholders and of the Corporation, other than as hereinafter provided.

In that case, the restrictions would have applied to all transfers of stock made "without consent of all other Shareholders and of the Corporation[.]" However, as written, the restrictions apply to all transfers "except by Will or gift." Again, we cannot ignore that plain language.

Further, the Agreement makes a fundamental distinction between inter vivos and testamentary gifts on the one hand and transfers for consideration on the other. Following the categorical exception of transfers "by Will or gift," Section I of the Agreement restricts the "sale and purchase" of stock during a shareholder's lifetime, and Section II restricts the "purchase and sale" of stock upon a shareholder's permanent disability or death. Section II would have applied here if, for example, Gregory had died intestate or had failed to dispose of the shares in his will. But neither Section I nor Section II, nor any other subsequent provision of the Agreement, mentions disposition of stock by will or gift, No provision purports to nullify the exception of transfers by will or gift. The Agreement must be construed as a whole, giving effect to all of its provisions. To hold otherwise would render the "Will or gift" exception meaningless. See Peoples Bank, 714 N.E.2d at 717.

Additional support for our reading of the Agreement is found in Section II B, which provides in relevant part that Penz "shall have the right ... to purchase from a deceased .... Stockholder's Personal Representative ... all of the shares of the Corporation owned by the decedent[.]" (Emphasis added). There is no provision giving Penz the right to purchase a decedent's shares from a devisee.⁶ Penz maintains that because the Agreement is expressly binding on heirs, successors, and assigns of the shareholders, the Trust is obliged to sell its shares to Penz under Section II B. But the plain language of Section II B does not support that contention because Gregory's transfer of his shares to the Trust under the residuary clause of his will was exempt altogether from the Agreement.

In sum, while the Agreement might have been better drafted, its various provisions can be harmonized, and when the Agreement is read as a whole it is unambiguous. See id. As such, we ascertain the intent of the parties from the four corners of the Agreement. See id. at 716. The plain and ordinary meaning of the terms of the Agreement indicates that a shareholder's transfer of shares by will or gift is unrestricted. This was the intention of the parties as expressed by the words "except by Will or gift." Penz could have written the Agreement such that all stock transfers were subject to restrictions, which is permissible under our supreme court's opinion in F.B.1. Farms, but, again, it chose not to do so. We hold that the trial court erred when it found that the Trust is required to sell its shares to Penz under the Agreement.

Reversed.

BAILEY, J., concurs. ROBB, J., dissents with separate opinion.

1 . We heard oral argument on November 17, 2003, at the Indiana University School of Law in Bloomington.

2 . On Aligust 27, 2001, the Estate instructed Penz to issue a portion of Gregory Penzenik's shares to the Trust. By letter dated August 31, 2001, Penz transferred 143 shares to the Trust and reissued the balance to the Estate.

3 . - The recitals read in relevant part as follows:

WHEREAS, the parties believe it is in the best interests of the Corporation and the Shareholders to make provision for the future disposition of shares of the Corporation, and

WHEREAS, in the event of the death, total permanent disability or retirement of any Shareholder of the Corporation, it will be to the best interests of the Corporation and of Shareholders' successors that the Corporation have the first right of refusal to acquire all shares of stock owned by such Shareholder,. ... .

As Penz correctly points out, "recitals are worthy of consideration only when 'the intention of the parties is not clear from the operative portion of the contract[.]'" (Quoting Stech v. Panel Mart, Inc., 434 N.E.2d 97, 100 (Ind.Ct.App.1982)).

4 . The parties dispute whether the Agreement creates an option to purchase or a right of first refusal. But we need not resolve that issue, because it has no bearing on whether the Agreement applies to transfers by will.

5 . In F.B.L. Farms, a family-owned corporation adopted restrictions on the transfer of shares which required all transfers to be approved by the Board of Directors and which established a right of first refusal. Linda Burger, a family member and shareholder, married Birchell Moore. When Linda divorced Moore in 1982; the court awarded her all of her shares in FB.L, and the court awarded Moore a monetary judgment secured by a lien on Linda's shares.

When Moore subsequently sought a writ of execution on his lien, F.B.I. demanded payment of the subscription price for Linda's shares. After Moore obtained the writ of execution, F.B.I. purported to cancel the shares for failure to pay the subscription price. Following a sheriff's sale, Moore purchased all of the shares in F.B.I. owned by Linda. Moore then filed suit against F.B.I. seeking a declaratory judgment that the shares at issue were unencumbered by restrictions and were freely transferable.

6 . Even if a transfer by will were not exempt from the Agreement, it is clear from the text that the option to purchase would have to be presented as a claim to the personal representative.