Joyner v. Liprie

896 So. 2d 363, 2005 WL 567495
CourtLouisiana Court of Appeal
DecidedMarch 11, 2005
Docket39,342-CA
StatusPublished
Cited by5 cases

This text of 896 So. 2d 363 (Joyner v. Liprie) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joyner v. Liprie, 896 So. 2d 363, 2005 WL 567495 (La. Ct. App. 2005).

Opinion

896 So.2d 363 (2005)

Lee Roy JOYNER, M.D., Plaintiff-Appellee
v.
Samuel F. LIPRIE, Defendant-Appellant.

No. 39,342-CA.

Court of Appeal of Louisiana, Second Circuit.

March 11, 2005.

*364 Keith M. Borne, Lafayette, for Appellant.

J. Michael Hart, Greenwald Law Firm by Joseph W. Greenwald, Sr., for Appellee.

Before BROWN, MOORE, and DREW, JJ.

BROWN, C.J.

The present dispute arose out of a 1993 transaction between plaintiff, Lee Roy Joyner, M.D., and defendant, Samuel Liprie. The parties were friends and business associates. Liprie, a nuclear pharmacist, was a founder and director of Omnitron International, Inc., a company that produced HDR afterloaders, a device used to deliver radiation treatment to cancer patients. In December 1992, the FDA temporarily halted Omnitron's sales of the afterloaders. To raise capital to cover past due payables, Omnitron offered "to existing shareholders convertible debentures in the amount of 1,000,000 shares convertible into common stock of Omnitron International, Inc. at $1.00 *365 per share anytime between January 1, 1994 and December 31, 1999." Thereafter, it became clear that this phrase meant that the debentures would cost $1 per share and no cost would be added when they were converted to stock.

Liprie told Joyner, a pulmonologist who was familiar with Omnitron, that the convertible debentures could only be purchased by directors and offered to buy them in his name for Joyner.[1] In June 1993, Joyner gave Liprie $50,000, and Liprie purchased 50,000 debentures at $1.00 per share. In 1994, these debentures were converted to shares of stock without any further cost. The debentures and shares were in Liprie's name, and starting in 1997, Liprie began to receive dividends. What exactly the parties agreed to is the sine qua non of this dispute.

The parties presented contradictory testimony. Their differing views were essentially crystallized in three memos sent to Joyner from Liprie: the dates of the memos are June 6, 1993, June 10, 1993, and June 22, 1993. Liprie contends that the parties' agreement is outlined by the documents of June 6, and June 10, 1993. Liprie further asserts that the document dated June 22, 1993, was a fabrication that he did not author or send.

The June 6 memo provided that Liprie would purchase warrants (or convertible debentures) in his name for Joyner at $2.00 a share up to 50,000 shares "to be later (as specified by Omnitron International) converted to stock at a rate of ($1) one dollar a share."

Joyner sent Liprie a check for $50,000. The June 10 memo states that on June 10 Liprie received a personal check in the amount of $50,000 from Joyner for the purchase of warrants in Liprie's name for Joyner at $2.00 a share "for a total of (25,000) shares to be later (as specified by Omnitron International) converted to stock at a rate of ($1) one dollar a share."

Joyner argues that the first two documents were drafts for discussion. After he received the June 10 memo, Joyner made handwritten corrections on both the June 6 and June 10 memos to show the price of the warrants to be $1.00. On the June 10 letter, Joyner also wrote, "I have sent you a check for $50,000 to match your $50,000 ... together to purchase 100,000 shares." These corrections were then faxed to Liprie by Joyner's business manager, Patsy DeLaSalle. Joyner testified that five days later, on June 15, he had a telephone conversation with Liprie which was heard on a speaker phone by Stanley Palowsky. In that conversation, Liprie agreed to make the changes.[2] The memo dated June 22 allegedly followed and according to Joyner contains the terms of the final agreement.

The June 22 memo provides that "(Liprie) will purchase warrants (or convertible debentures) in (Liprie's) name for (Joyner) at the rate of ($1) one dollar a share ... for a maximum of (50,000) fifty thousand shares to be later (as specified by Omnitron International) converted to stock at a rate of ($1) one dollar a share." Joyner states that this June 22 document shows that there was an agreement for him to purchase through Liprie 50,000 debentures at $1.00 per debenture and, although not mentioned in the memo, that Liprie was to purchase an additional 50,000 debentures using his own funds.

*366 In February 1996, Joyner filed suit against Liprie requesting a transfer of 50,000 shares of Omnitron stock held in Liprie's name. In December 2001, a supplemental and amending petition was filed to recover dividends paid and damages for a lost opportunity to purchase Neocardia stock.[3] Liprie answered, stating that he was distributing the debentures and stock at a marked up price because they were not otherwise available to Joyner. Liprie claims that only 25,000 debentures were purchased for Joyner which were converted to shares that Liprie would transfer to Joyner's name upon payment of a $1.00 per share fee. Liprie claims that Joyner was given the opportunity to obtain the shares by paying the fee before any dividends were paid or the Neocardia deal occurred. In short, Joyner claims he paid $50,000 for 50,000 shares while Liprie claims that Joyner should pay $75,000 for 25,000 shares.

The trial court determined that the document dated June 22, 1993, represented the intent of the parties. The trial court then found that a fiduciary relationship did exist between Liprie and Joyner, that Liprie was in violation of that fiduciary relationship, and that Joyner was entitled to the stocks and their fruits, including dividends paid and the missed opportunity to invest in NeoCardia that was offered to Omnitron shareholders. Judgment was rendered ordering the transfer of Liprie's 50,000 shares of Omnitron stock to Joyner and damages in the amount of $267,990.71 for dividends paid and $313,137.60 for the lost opportunity to obtain NeoCardia stock, with legal interest from the date the initial action was filed, were awarded. Liprie has appealed from the trial court's judgment.

After reviewing the record, we amend and, as amended, affirm.

Discussion

The Agreement

Liprie contends that this June 22 document was fabricated, and he denied authoring or sending this memo. Liprie's document examiner/handwriting expert, Mary Ann Sherry, testified that Liprie's signature on the June 22 memo was "identical" to his genuine signature on a letter mailed to Joyner on June 21 (both the memo and letter were simply signed "Sam"). She surmised that signatures are never exactly the same and thus, she concluded that the signature on the June 22 memo was lifted from the June 21 letter. She attached overlays to her report and this court can easily see that the signatures were "exactly" the same. We also note that "Sam" in the memos of June 6 and 10 had variations and did not "exactly" fit the overlay. The fax transmittal data on the June 22 memo identified Liprie as the sender. Liprie claims that this data was also lifted from the June 21 letter.

There was testimony from Stanley Palowsky and Patsy DeLaSalle. Palowsky testified that he was present with Joyner for a telephone conversation held on a speaker phone between Liprie and Joyner concerning the first two memos. Palowsky testified that in this conversation, it was agreed between Liprie and Joyner that they would each purchase 50,000 debentures. Palowsky further testified that Liprie desired to purchase 100,000 debentures at $1.00 each because he wanted to match the purchase of another stockholder. Liprie and Joyner agreed to "kick the paperwork around so the language was satisfactory to both parties."

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Related

Joyner v. S.F.L. & S.I.L., LLC
485 B.R. 538 (W.D. Louisiana, 2013)
Joyner v. LIPRIE
942 So. 2d 620 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
896 So. 2d 363, 2005 WL 567495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joyner-v-liprie-lactapp-2005.