In Re McBurney Law Services, Inc.

798 A.2d 877, 2002 R.I. LEXIS 130, 2002 WL 1022970

• Court: Supreme Court of Rhode Island
• Decided: May 21, 2002
• Docket: 2001-159-M.P., 2000-11-M.P.
• Status: Published

Opinions

OPINION

GOLDBERG, Justice.

This case came before the Supreme Court on March 6, 2002, on petition for certiorari by the petitioner, McBurney Law Services, Inc. (McBurney or petitioner), to review a decision of the valuation panel appointed by this Court, pursuant to Article II, Rule 10(g) of the Supreme Court Rules, to determine the fair market value of shares of the petitioner corporation issued to Kevin McBurney (Kevin or respondent).

Facts and Travel

The petitioner is a professional service corporation engaged in the practice of law; it was founded by John F. McBurney, Jr. in 1980 for, according to the record, the benefit of his children who are members of the bar. The respondent, who became a shareholder in McBurney in 1982, voluntarily terminated his employment and association with the corporation as of July 29, 1993. The termination of this relationship was less than amicable, and several disagreements arose among the shareholders, including a dispute over the percentage of respondent’s ownership in the corporation and the number of shares lawfully issued in accordance with the articles of incorporation. The record discloses that respondent is the holder of twenty-five shares of common stock that McBurney maintains consists of an ownership interest of 25 percent of the corporation. The other shareholders, according to the testimony of John F. McBurney, Jr. and his wife, Ann McBurney, the office manager of McBurney, are John F. McBurney III, Christine McBurney and Mark McBurney. However, the articles of incorporation authorized the issuance of 100 shares of common stock to John F. McBurney, Jr. As of July 29, 1993 (the valuation date agreed to by the parties), when Kevin terminated his employment with the petitioner, there was a dispute about whether an additional 100 shares had been issued in excess of the number permitted by the articles of incorporation. Further, although the respondent is a professional service corporation engaged in the practice of law, and is governed by Rule 10(g),¹ neither respondent nor McBurney complied with Rule 10(g) or the provisions of G.L. 1956 chapter 5.1 of title 7, that govern professional service corporations, to which Rule 10(g) specifically refers. The record discloses that respondent did not transfer his shares to an eligible shareholder nor did he offer them to the corporation for redemption, as required by § 7-5.1-5. Similarly, McBur-ney did not comply with the obligations imposed by Rule 10(g) that require the professional service corporation, upon the ineligibility of a shareholder, to redeem the shareholder’s shares or cause them to be purchased by an eligible person. Rule 10(g)(4) accords the corporation and the ineligible shareholder three months to agree on the fair market value of the shares or, failing an agreement on value, the corporation must apply to this Court for appointment of a valuation panel, “as provided by G.L.1956 * * * § 7-5.1-5, to determine the fair market value” of the shares. The record discloses that respondent, upon his voluntary departure from McBurney, never tendered his shares back to petitioner, nor did he indicate a willingness to have his shares redeemed.² On January 13, 2000, McBurney filed a petition for appointment of a valuation panel, to which the respondent objected. In an order entered on March 21, 2000, this Court granted the petition and appointed the valuation panel (panel).

On June 5, 2000, preparing for the evi-dentiary hearing scheduled by the panel, counsel for both parties entered into a written stipulation providing that respondent “shall be deemed to have owned 25% of the issued and outstanding shares of stock as of the [valuation [d]ate,” thus relieving either party from the burden of proving, as Kevin maintained, that he owned a larger percentage of McBurney, or, as the petitioner maintained, that the shares issued to Kevin were over-issued shares and as such were void. The respondent subsequently moved to modify this stipulation. The respondent acknowledged that the stipulation was not the result of any fraud or mistake, but rather, that it was based on information acquired later from respondent’s 1988 tax returns that reflected the practice and custom of the parties as one-third shareholders for purposes of income, salary and benefits. Further, respondent admitted that his stock certificate reflected a 25 percent ownership in the corporation. The panel, in the absence of any reasoning, and over the objection of McBurney, granted the motion to modify the stipulation.

A decision regarding the value of the assets and liabilities of the petitioner as of the valuation date, including interest accruing from the date of Kevin’s departure from McBurney, was issued by the panel. We note that the panel’s determination of the value of the shares has not been challenged by either party. Indeed, such a challenge is unavailable in light of the provision in § 7-5.1-5 that the determination of the fair market value of the shares of the corporation by the panel “is final and binding upon the parties.”

The petitioner has raised several issues before this Court, including whether the stipulation that was executed by counsel for both parties was subject to modification by the panel in the absence of agreement by both parties. Second, if the stipulation was appropriately set aside, an issue exists as to whether Kevin’s shares and the shares of the other shareholders were issued in excess of the number of shares authorized by the articles of incorporation and thus, were void. The petitioner has argued that there is no evidence in the record to support the panel’s findings that the original 100 shares that were issued to John F. McBurney, Jr. were canceled and 75 shares were reissued to respondent, John F. McBurney III and Christine McBurney. The petitioner next challenges the award of prejudgment interest to an ineligible shareholder on the ground that interest is not provided by Rule 10(g), or § 7-5.1-5.³ Further, if interest is allowable, an issue exists as to the appropriate commencement date. Finally, petitioner has argued that a valuation panel, appointed pursuant to Rule 10(g), has no authority to decide questions of law and may not issue a finding relative to the application of collateral estoppel or res judicata to cases pending in the Superior Court.

Standard of Review

“Our review on a writ of certiorari is restricted to an examination of the record to determine whether any competent evidence supports the decision and whether the decision maker made any errors of law in that ruling.” Asadoorian v. Warwick School Committee, 691 A.2d 573, 577 (R.I.1997). Furthermore, we must determine whether the decision was patently “ ‘arbitrary, discriminatory, or unfair.’ ” D’Ambra v. North Providence School Committee, 601 A.2d 1370, 1375 (R.I.1992).

The Stipulation

Before hearings began in this case, counsel for the petitioner and the respondent stipulated, in writing, that the “[respondent shall be deemed to have owned 25% of the issued and outstanding shares of stock as of the [v]aluation [d]ate;” an agreement that reflected a compromise between the parties’ conflicting positions. There has been no suggestion by either party that this stipulation was the product of fraud, mutual mistake or lack of consent. “We have stated previously that ‘stipulated agreements [must] be placed on the record or * * * be reduced to an agreed-upon writing [to ensure] that the agreement itself does not become a source of further controversy and litigation.’ ” DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757, 776 (R.I.2000) (quoting E.W.H. & Associates v. Swift, 618 A.2d 1287, 1288-89 (R.I.1993)).⁴ The stipulation before us meets these conditions and should have been honored. A stipulation entered into with the assent of counsel and their clients, relative to an evidentiary fact or an element of a claim, is conclusive upon the parties and removes the issue from the controversy. It is no longer a question for consideration by the tribunal. Therefore, absent an agreement of the parties to do so, a stipulation has the attributes of a consent order or consent judgment and cannot be set aside simply because a litigant no longer wants to be bound by its terms. DeFusco v. Giorgio, 440 A.2d 727, 729 (R.I.1982); see also Hasman v. Hasman, 655 A.2d 256, 257 (R.I.1995) (mem.). “Although a consent judgment receives a court’s imprimatur, the judgment is in essence a contract between the parties to the litigation” and is to be construed as a contract. Trahan v. Trahan, 455 A.2d 1307, 1310 (R.I.1983). The record discloses that both parties to this dispute compromised their original positions, relative to respondent’s percentage ownership in McBurney, thus removing this issue from the controversy and precluding the parties from challenging the stipulation at a later point. An order consented to by the parties can not be “opened, changed or set aside without the assent of the parties in the absence of fraud, mutual mistake or actual absence of eonsent[.]” Douglas Construction and Supply Corp. v. Wholesale Center of North Main Street, Inc., 119 R.I. 449, 452, 379 A.2d 917, 918 (1977). None of those factors are present here. Further, respondent’s counsel acknowledged that this stipulation was intended to resolve certain issues in the case and was not the result of any mistake but, instead, resulted from his lack of knowledge of his client's circumstances. Counsel acknowledged that when he discussed the stipulation with his client, he “prevailed upon him to agree to the 25 percent and stipulate to it because [he] didn’t have any other evidence to support [respondent’s] contention of a one-third interest until [he] saw [respondent’s] 1988 tax return.” We deem this to be an insufficient reason to modify a stipulation that was freely entered into by counsel with the actual consent of their clients.

In Richardson v. Smith, 691 A.2d 543 (R.I.1997), this Court reversed a decision of a trial justice that purported to vacate a consent order agreed to by the parties in the absence of the consent of both parties to the agreement. We held that it was clear error for the trial justice to vacate a stipulation entered into by the parties “without either first obtaining the consent of all parties or without a motion having been made and proof presented under [Super.R.Civ.P.] 60(b) establishing fraud, mutual mistake, the lack of actual consent or the existence of other extraordinary circumstances.” Richardson, 691 A.2d at 546. When parties to litigation resolve issues through compromise and in good faith, it is well settled that “courts will enforce the compromised settlement ‘without regard to what [the] result might, or would have been, had the parties chosen to litigate.’” Mansolillo v. Employee Retirement Board of Providence, 668 A.2d 313, 316 (R.I.1995) (quoting Homar, Inc. v. North Farm Associates, 445 A.2d 288, 290 (R.I.1982)). A party may not escape its obligations simply because one of the parties may not consider the agreement to be as palatable to them as when they entered into it. Mansolillo, 668 A.2d at 317.

On appeal, respondent has suggested that the modification of a binding stipulation is similar to a party’s seeking relief from an admission made during the course of pre-trial discovery. We note, however, that this argument is of recent vintage. Indeed, in his written motion seeking to modify the stipulation and in his argument before the panel, respondent simply stated that the motion was based on information acquired later and ought to be granted to avoid unjust enrichment by McBurney. Thus, in light of our raise or waive rule, we are satisfied this argument is not properly before this Court. See State v. Pineda, 712 A.2d 858, 861 (R.I.1998).

Moreover, were this issue appropriately raised, we reject the suggestion that relief from an admission is governed by the same standard as relief from a consent order because the two are fundamentally different legal concepts. An admission is a one-sided occurrence that is “[a] voluntary acknowledgment of the existence of facts relevant to an adversary’s case.” Black’s Law Dictionary, 48 (7th ed.1999). In contrast, a stipulation is a two-party agreement and is defined as “[a] voluntary agreement between opposing parties concerning some relevant point[.]” Id. at 1427. (Emphasis added.) Based upon these definitions, it is clear that the parties in this case executed a stipulation relative to an important fact in the controversy, thereby relieving both sides from the necessity of presenting evidence relative to that issue. Thus, the standard for relief from an admission should not be applied by this Court on review. Further, in light of our well-settled rule that an admission that has been conclusively established may be withdrawn only “ ‘(1) if the admitting litigant has acted diligently; (2) if adherence to the admission might cause a suppression of the truth; and (3) if the withdrawal can be made without prejudice to the party who made the request,]’” Kelley v. K & H Realty Trust, 717 A.2d 646, 648 (R.I.1998)(mem.) (quoting General Electric Co. v. Paul Forsell & Son, Inc., 121 R.I. 19, 23, 394 A.2d 1101, 1103 (1978)), we are not persuaded that Kevin could meet the high standard necessary to withdraw an admission made in good faith. Finally, we are without an adequate record to properly review this issue because the panel failed to make findings of fact or set forth its reasons for granting the motion to modify the stipulation. We conclude, therefore, that the panel committed clear error when it modified the stipulation over the objection of petitioner.

Having determined that the stipulation was binding upon both parties, and conclusively established respondent’s percentage ownership in McBurney, we need not address petitioner’s second claimed error relative to an over-issuance of stock and the fair market value of that stock.

Prejudgment Interest

Turning to petitioner’s next claim of error, McBurney argues that the panel erred when it awarded interest from the date that Kevin voluntarily terminated his relationship with McBurney. The petitioner maintains that by filing a petition with this Court' seeking the appointment of a valuation panel, McBurney elected to purchase respondent’s shares to avoid dissolution of the corporation and that interest should commence as of the date of the election to purchase. We note that Kevin objected to the appointment of the panel on the ground inter alia, that there was litigation pending against McBurney in which he was seeking “redress for unfair dealing, fraud, and breach of fiduciary obligations which require considerations and proof far beyond a mere appraisal of the value of [the corporate] stock[.]”

It is well settled that prejudgment interest is available only where a statute, when strictly construed, expressly grants it. “Indeed, ‘[t]his [C]ourt has held that because the right to receive interest on .judgments was unknown at common law as it is a right created by statute, the [C]ourt will strictly construe any statute that awards interest on judgments so as not to extend unduly the changes enacted by the [L]egislature.’ ”⁵ DiLuglio, 755 A.2d at 775. Further, we have previously held that “ ‘[bjecause we are strictly construing the statute [awarding prejudgment interest], we should avoid reading anything into the statute by implication.’ ” Id. Significantly, neither § 7-5.1-5, nor Rule 10(g), expressly provides for the award of prejudgment interest on the valuation reached by the panel. Unfortunately, in the decision before us the panel simply awards “statutory interest at the rate of twelve percent (12%) commencing July 29, 1993[,]” and fails to reference any statutory authority or set forth its reasons for doing so. The respondent argues that G.L.1956 § 7-1.1-90.1, entitled “Avoidance of dissolution by stock buyout,” applies by analogy to the facts of this case to allow for interest to be added to the purchase price of his shares. Rhode Island’s Professional Service Corporations Act, § 7-5.1-1, references chapter 1.1 of title 7 and provides that the Rhode Island Business Corporations Act shall apply to professional business corporations. Thus, in cases in which the corporation seeks to avoid a dissolution and elects to purchase the shares of the excluded shareholder, § 7-1.1-90 sets forth a procedure for the valuation and sale of the shareholder’s shares, including a bond to guarantee payment. In those situations, the statute provides that the shareholder “is entitled to interest, at the rate on judgments in civil actions, on the purchase price of the shares from the date of the filing of the election to purchase the shares * * *.” Section 7-1.1-90. As we noted in DiLuglio, “[t]his language is unambiguous,” and sets the time for interest on the purchase price of the shares from the date of the election to purchase the shares. DiLuglio, 755 A.2d at 777. Thus, the tribunal is without discretion or equitable authority to set a different commencement date. Id. at 777-78. Therefore, according to § 7-1.1-90, interest does not begin to run unless and until there is an election to purchase the shares. Clearly, there is no evidence in this case that McBurney elected to purchase respondent’s shares on the valuation date as established by the panel, nor are we convinced that this is the appropriate starting date for interest to begin. We are satisfied, however, that by filing a petition with this Court seeking the appointment of a valuation panel, McBurney formally elected to purchase respondent’s shares. Clearly, the purpose of a valuation panel is to establish the value of the ineligible shareholder’s interest in the corporation to redeem the shares or cause the shares to be purchased by an eligible person to avoid dissolution of the corporation. Accordingly, we are of the opinion that this is the appropriate date for interest on the purchase price to begin. Therefore, that portion of the decision of the panel ordering interest to begin on the valuation date is quashed and we direct that interest shall accrue from the date that the Rule 10 petition was filed with this Court.

Authority of Panel

Finally, noting that various civil actions remained pending between the parties in the Superior Court, the panel declared that it “has made no findings or determinations or conclusions which affect those cases.” The petitioner asserts that the panel had no authority to decide the issue of collateral estoppel or res judicata as it related to its factual findings. We agree. A panel appointed by the Supreme Court pursuant to Rule 10(g) has a limited responsibility — to determine the fair market value of shares held by an ineligible shareholder in a professional service corporation — and has no authority to make rulings of law. The question of whether the parties to this controversy are precluded from re-litigating issues determined by the panel is a question of law and is to be governed by this Court’s well-established principles of res judicata or collateral es-toppel. Accordingly, that portion of the decision that addresses the question of res judicata or collateral estoppel is quashed.

Conclusion

In conclusion, this is a case of first impression under Rule 10(g) of the Supreme Court Rules. Moreover, the parties to this unfortunate controversy are family members who were long engaged in the practice of law. We recognize that the issues raised by the parties and the testimony presented to the panel were difficult, confusing and sometimes painful. We acknowledge the significant time and effort expended by the panel members and their admirable performance. Clearly, the valuation decision of the panel is final and binding upon the parties and the critical work performed by the panel has not been challenged. This Court has passed upon alleged errors of law.

The petition for certiorari is granted, the decision of the panel vacating the stipulation of the parties is quashed. We direct that the respondent’s percentage interest shall be determined in accordance with the stipulation of the parties. Further, we quash and vacate that portion of the panel’s decision setting the commencement date for prejudgment interest and direct that interest shall commence as of January 13, 2000, the date the petition for appointment of the valuation panel was filed with this Court. Having reinstated the stipulation of the parties, we have not reached the issue regarding the number of shares lawfully issued by the corporation. Finally, we quash that portion of the decision that purportedly decided the issue of collateral estoppel and res judicata.

1 . Article II, Rule 10 of the Supreme Court Rules, entitled “Professional service corporations and limited liability partnerships (limited liability entities)” provides that, in subsection (g): "If a shareholder dies or becomes ineligible, the professional service corporation shall: (1) Redeem the shareholder’s shares * * * or (2) Cause the shareholder's shares to be purchased by an eligible person or persons.”

2 . In testimony before the panel respondent denied that he was an ineligible shareholder and testified that he attempted to rejoin the firm in 1993 and 1994.

3 . General Laws 1956 § 7-5.1-5 entitled "Eligibility of personnel — Transfer of stock” provides in pertinent part: "(a) If any shareholder becomes ineligible, he or she shall transfer his or her shares to an eligible person, or offer them to the corporation for redemption at their fair market value. * * * [An] ‘ineligible shareholder’ includes a shareholder electing to retire or withdraw from active employment in the corporation.”

4 . The dissent maintains that a stipulation may be set aside if it is the product of fraud, duress, or mistake. However, that is simply not the situation before us. There is no suggestion that this stipulation was entered into as a result of fraud, duress or by mistake. Further, the cases cited by the dissent set forth the heavy burden a party faces in seeking to be relieved of a stipulation, and then only “where it becomes evident that 'the agreement was made under a clear mistake[,]’ ” and the mistake concerns issues of law, that "are the province of courts, not of parties to a lawsuit * * TI Federal Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995). Moreover, a court must determine " ‘whether there are overriding rules or policy considerations that compel granting or denying such relief[,]‘ ” particularly where a disputed factual stipulation was " 'inadvertently incorporated therein[,]’ ” a situation that is clearly not before us. MP Associates v. Liberty, 771 A.2d 1040, 1049 (Me.2001). The panel never addressed any applicable policy considerations or otherwise made findings when it vacated the stipulation in this case. Finally, where, as here, "the stipulation partakes of the nature of a contract,” there is authority that a court "can exercise no discretion in the matter whatever, except perhaps to relieve from fraud clearly shown.” 73 Am.Jur.2d Stipulations § 12 (2001). We are satisfied that the stipulation in this case was in the nature of a binding contract and there is no suggestion of fraud.

5 . This Court has consistently held that we will strictly construe statutes that provide for the award of interest, that we will not extend the reach of these statutes; nor will we read anything into a prejudgment interest statute by implication. See DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757, 775 (R.I.2000); Clark-Fitzpatrick, Inc./Franki Foundation Co. v. Gill, 652 A.2d 440, 451-52 (R.I.1994). Thus, although the dissent recognizes that no provision for the award of interest is made by statute or Rule 10(g)(4) except as provided in G.L.1956 § 7-1.1-90, we disagree with the dissent’s conclusion that Rule 10(g)(4) "implicitly includes such [an interest] component,” that is analogous to arbitration awards. We decline to deviate from our numerous prior holdings and refuse to read an interest component into a statute or a rule where one does not exist.