Phillips Exeter Academy v. Howard Phillips Fund, Inc.

196 F.3d 284, 1999 U.S. App. LEXIS 30542, 1999 WL 1041482
CourtCourt of Appeals for the First Circuit
DecidedNovember 19, 1999
Docket99-1254
StatusPublished
Cited by363 cases

This text of 196 F.3d 284 (Phillips Exeter Academy v. Howard Phillips Fund, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 1999 U.S. App. LEXIS 30542, 1999 WL 1041482 (1st Cir. 1999).

Opinion

SELYA, Circuit Judge.

This appeal presents a jurisdictional tangle. The seeds for the underlying litigation were sown when the late Howard Phillips (Phillips or the testator) bequeathed all the stock in a profitable Florida-based real estate development company, Dr. Phillips, Inc. (the Company), to the Howard Phillips Fund (the Fund), upon the condition that the Fund share the profits with Phillips Exeter Academy (Exeter), a private secondary school located in New Hampshire. Over time, Exeter concluded that the Company and the Fund had short-shifted it. When a disenchanted Exeter subsequently sued in New Hampshire’s federal district court, the court determined that it lacked personal jurisdiction over the named defendants and dismissed the action. Exeter appeals. We affirm.

I. BACKGROUND

Phillips resided in Florida and executed his will there. When he died in 1979, he held a power of appointment over all the shares in the Company. His will directed that the stock be offered in turn to a series of family-sponsored charitable foundations. After one declined the gift, the Fund accepted it.

The testator was an alumnus of Exeter and a stalwart supporter of his alma mater. His will obligated the Fund, as a condition to its receipt of the Company’s stock, to vote the stock for the election of an Exeter representative to the Company’s governing board and to pay Exeter “Five (5%) percent of the net income from such stock ... but not for more than twenty (20) years after [Phillips’s] death,” along with “Five (5%) percent of the net proceeds of the stock” if and when sold within the 20-year window. Phillips’s will further provided that “any right to future income shall cease” upon a sale of the stock. Although these were the only firm conditions attached to the bequest, the testator expressed his hope that the recipient of the stock would continue to focus its charitable efforts on the causes and institutions it had favored when he was active in its direction and that it would give Exeter 5% of its own net income annually for 20 years. The Fund, as a matter of practice, apparently fulfilled the first of these velleities, continuing to devote most of its resources to familiar Florida charities (including Florida chapters of national organizations). But for aught that appears, the Fund showed no interest in channeling more money to Exeter.

*287 Soon after the Florida probate proceedings were completed, two things happened. First, the Fund, acting at Exeter’s behest, elected John Emery — an Exeter alumnus who lives and works in New York — to the Company’s board. Second, H.E. Johnson, who then served as the chief executive officer of both the Fund and the Company — the two entities were under common control, and remained so thereafter — consulted Emery about the possibility of a lump-sum commutation of the Fund’s present and future obligations to Exeter. Exe-ter turned a deaf ear to this entreaty, and the Fund proceeded to send checks annually to Exeter in New Hampshire, each equaling 5% of the dividend declared by the Company for the year in question.

Another settlement overture occurred in 1992, when Johnson’s successor, James Hinson, visited the school’s headmaster in New Hampshire. This visit — which marked the only time that an official of either defendant set foot in New Hampshire to conduct Exeter-related business— proved unavailing. The next year, Hinson again unsuccessfully proposed a settlement, this time by letter.

The Fund and the Company both altered their corporate forms in the years following the testator’s demise. In 1980, the Fund converted from a private family foundation (known as the Della Phillips Foundation) to its present incarnation as a charitable support organization (known as the Howard Phillips Fund). This maneuver enabled it to hold the Company’s stock indefinitely, without risk of escalating tax penalties. Compare 26 U.S.C. § 4943 (describing tax consequences for private foundations with “excess business holdings”), with id. § 509(a)(3) (excluding charitable support organizations from the definition of “private foundation”). In 1997, management merged the Company, until then an ordinary business corporation, into a newly established Delaware nonprofit corporation of the same name, with the result that the Fund became the sole member of the Company rather than its sole stockholder. Despite the conversion of its stock interest to a membership interest, the Fund made no contemporaneous payment to Exeter.

Exeter received its next annual check— an unusually large one, geared to the Company’s net income, rather than to its annual dividend — from the Company instead of the Fund. Shortly thereafter, Exeter filed suit, claiming that the Fund and the Company were liable in both tort and contract because (1) the transmitted payments, computed by the Fund on the basis of 5% of the Company’s annual dividends, fell well short of the Fund’s obligation to pay Exeter 5% of the Company’s annual income; (2) the restructuring that had occurred was designed to thwart the testator’s intention that the Fund sell the stock within 20 years and deliver 5% of the net sale proceeds to Exeter; and (3) in all events, when the Fund exchanged its stock ownership for a membership interest, it should have paid Exeter 5% of the Company’s value. The district court did not address the substance of these allegations but, rather, granted the Fund’s and the Company’s joint motion to dismiss the action for want of personal jurisdiction. See Fed.R.Civ.P. 12(b)(2). This appeal ensued.

II. ANALYSIS

New Hampshire’s long-arm statute reaches to the full extent that the Constitution allows. See Phelps v. Kingston, 130 N.H. 166, 536 A.2d 740, 742 (1987); Computac v. Dixie News Co., 124 N.H. 350, 469 A.2d 1345, 1348 (1983). Aware of this reality, the court below sensibly focused on federal constitutional standards, and the parties — who agree on little else — have briefed the appeal in those terms. Thus, we proceed directly to the constitutional inquiry.

The Due Process Clause prohibits a court from imposing its will on persons whose actions do not place them in a position where they reasonably can foresee that they might be called to account in that jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 *288 S.Ct. 559, 62 L.Ed.2d 490 (1980). Although this regime is grounded in principles of fundamental fairness, it is written more in shades of grey than in black and white. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 486 n. 29, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir.1992).

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Bluebook (online)
196 F.3d 284, 1999 U.S. App. LEXIS 30542, 1999 WL 1041482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-exeter-academy-v-howard-phillips-fund-inc-ca1-1999.