Gallagher v. McKinnon

615 S.E.2d 746, 273 Ga. App. 727
CourtCourt of Appeals of Georgia
DecidedApril 13, 2005
DocketA05A0415; A05A0744
StatusPublished
Cited by2 cases

This text of 615 S.E.2d 746 (Gallagher v. McKinnon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher v. McKinnon, 615 S.E.2d 746, 273 Ga. App. 727 (Ga. Ct. App. 2005).

Opinion

Blackburn, Presiding Judge.

These related cases regard Daniel John Gallagher’s “hostile takeover” of Peliton, Inc., a close corporation, from its other director and shareholders. Both cases center on misrepresentations made by Gallagher to Thomas Robert McKinnon, Jr. in order to unduly coerce McKinnon to agree to an issuance of additional company stock to Gallagher, thereby giving Gallagher sole control of Peliton.

In Case No. A05A0415, following a jury trial, Gallagher, the acting president of Peliton,1 appeals the trial court’s rulings invalidating the issuance of a controlling share of Peliton stock to him, contending that the trial court erred by: (1) denying his motion for a directed verdict regarding McKinnon’s claim that Gallagher misled him in order to illegally receive a controlling interest in the corporation; (2) submitting an improper verdict form to the jury; (3) excluding testimony with regard to outside wages earned by McKinnon during the same time he was claiming lost wages from Peliton; (4) adding an improper amount of interest to the jury’s award of lost wages to McKinnon; (5) reserving judgment on the issue of punitive damages; and (6) finding that Gallagher owed fiduciary duties to McKinnon.

In Case No. A05A0744, Peliton appeals the trial court’s grant of summary judgment to its minority shareholders (collectively referred to as Shareholders),2 contending, among other things that the trial court erred by: (1) finding that the issuance of controlling shares to Gallagher was made without consideration; (2) finding that the issuance of controlling shares to Gallagher breached Gallagher’s fiduciary duties to Peliton’s shareholders; and (3) rescinding the [728]*728issuance of a controlling share in Peliton to Gallagher. For the reasons set forth below, we affirm in both cases.

Case No. A0SA041S

Viewed in the light most favorable to the jury’s verdict, the record shows that, in 1997, McKinnon and Ronald Johnson formed the company which later became known as Peliton.3 In January 1998, McKinnon and Johnson asked Gallagher to work for Peliton in management and sales, because they lacked expertise in those areas. Shortly thereafter, Gallagher was named president of Peliton, and Johnson decided to leave the corporation in September 1998 to pursue other ventures.4

In order to more easily manage the corporation following Johnson’s departure, McKinnon and Gallagher marshaled a redistribution of shares in the corporation in order to make themselves equal majority shareholders (each one held approximately 48 percent of the stock). And, to further facilitate their control, McKinnon and Gallagher were named the sole directors of Peliton by March 2002.

On July 24, 2000, Gallagher wrote a letter to Peliton’s corporate counsel in which he made his intentions regarding control of the company clear. He wrote: “How can I end up with the majority of [Peliton] because, rest assured, I will, or I’ll simply do it on my own.”

On September 27, 2002, Peliton sponsored a birthday party for Gallagher at a local restaurant. At this party, a number of the employees were drinking alcoholic beverages, and, at one point, McKinnon got into the back seat of his truck with Annette Yeomans, another Peliton employee. Yeomans testified that, while there, McKinnon made unwanted sexual advances toward her. She testified further, however, that she did not have sex with McKinnon. McKinnon, on the other hand, testified that he was so inebriated at the time that he had no memory of his encounter with Yeomans.

The following Monday morning, McKinnon met with Gallagher, and, despite Yeomans’s statements to the contrary, Gallagher told McKinnon that he had sex with Yeomans and that Yeomans was threatening suit against Peliton for sexual harassment. Gallagher then advised McKinnon to go home while he attempted to work things out at the office on his behalf. On Tuesday, Gallagher called McKinnon at home and requested that he attend a meeting at Peliton’s corporate counsel’s office the following day.

[729]*729When McKinnon arrived at the meeting which was, in reality, an unannounced special meeting of directors, Gallagher, reading from a memo prepared the previous day, told McKinnon that he had slept with Yeomans and that, after investigating the matter with both employees and nonemployees, he believed that this was true and that Yeomans was planning to file a lawsuit. In fact, however, Gallagher had spoken with no one but McKinnon and Yeomans about the matter, and neither one of them told Gallagher that they had sex at the party. Also, Yeomans did not threaten to sue.

Gallagher then informed McKinnon that, in order to protect Peliton from liability from a sexual harassment action, McKinnon would have to be disciplined. This discipline included removing McKinnon from his position as secretary of the corporation, demoting him to maintenance supervisor, reducing his salary by twenty-five percent, and placing him on two years probation.

Gallagher next informed McKinnon that, in order to further protect the corporation’s interests, additional shares of stock would have to be issued to Gallagher to give him a controlling interest in the corporation. During the meeting, it was determined that an additional 750 shares would be issued to Gallagher, and it is undisputed that, at the time, there was absolutely no attempt to determine the value of the shares being issued. In fact, value and consideration for the shares was not even discussed.

Following this meeting, McKinnon hired counsel to look into the matter, and, on October 24, 2002, McKinnon met with Gallagher and Peliton’s counsel. At this meeting, Gallagher fired McKinnon for contacting Yeomans through his personal counsel in order to question her about the night of the party and her discussions with Gallagher.

Following his termination, McKinnon, in his capacity as a shareholder of Peliton, filed an action pursuant to OCGA § 14-2-940 in which he asked the trial court to: (1) cancel the issuance of the 750 additional shares to Gallagher; (2) reinstate him as an employee and as an officer of Peliton; (3) award him lost wages; and (4) award him attorney fees.

A jury trial ensued, and the jury was asked to decide certain questions of fact regarding McKinnon’s claims.

The jury explicitly found that Gallagher lied to McKinnon about his interaction with Yeomans at the company party with the intent to induce McKinnon to agree to a demotion within the corporation. The jury found, however, that McKinnon did not justifiably rely on Gallagher’s representations after making reasonable inquiry. Nonetheless, the jury further found that McKinnon did not sign the corporate minutes and resolution freely and voluntarily, but under some type of duress or coercion.

[730]*730Following these determinations, the jury was asked on the verdict form:

[If McKinnon did not sign knowingly and voluntarily], was the signing done as a result of either (1) fraudulent misrepresentation[s] made by Dan Gallagher which were justifiably relied upon by Robert McKinnon or (2) actions taken by Dan Gallagher in his capacity as a director which was unfairly prejudicial to Robert McKinnon in his capacity as a shareholder.

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Bluebook (online)
615 S.E.2d 746, 273 Ga. App. 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-mckinnon-gactapp-2005.