Russell v. Russell

2013 Ark. 372, 430 S.W.3d 15, 2013 WL 5497709, 2013 Ark. LEXIS 448
CourtSupreme Court of Arkansas
DecidedOctober 3, 2013
DocketCV-13-244
StatusPublished
Cited by22 cases

This text of 2013 Ark. 372 (Russell v. Russell) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15, 2013 WL 5497709, 2013 Ark. LEXIS 448 (Ark. 2013).

Opinions

JOSEPHINE LINKER HART, Justice.

h Randy Russell appeals from a divorce decree and the denial of his motion for a new trial. On appeal he argues that (1) the divorce decree was unlawful because it ordered him to buy at their inferential value corporate shares from his ex-wife, appellee Andrea Russell, instead of simply distributing existing marital property and (2) Andrea offered no competent evidence to prove that the business, National Recovery Specialists, Inc. (NRS), had a fair-market value independent of the personal goodwill of Glynn Colquitt, Randy’s stepfather. We granted review after a unanimous court of appeals decision that affirmed this case as modified. Russell v. Russell, 2013 Ark.App. 151, 426 S.W.3d 527. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Payne v. Ark. Dep’t of Human Servs., 2013 Ark. 284, 2013 WL 3322339.

Randy and Andrea were married in July 1996, and they separated in July 2006. No children were born of this union. Randy filed for divorce on August 29, 2006, alleging | ggeneral indignities. Andrea counterclaimed on October 23, 2006, alleging the same grounds.

In November 1996, Randy and his two step-brothers, Rod Colquitt and Ron Col-quitt, each bought 33% of the shares in American Lenders Services Company, Inc. (A.L.S.C.O.F.S.), from Randy’s stepfather, Glynn Colquitt. According to Randy, he used his stepfather’s money to purchase his shares for $80,000. Later, the company became National Recovery Specialists, Inc. (NRS). The parties stipulated that Randy owned a 99/300th interest in A.L.S.C.O.F.S., Inc., and NRS. They also entered into a property-division agreement regarding all property except Randy’s interest in NRS, which was decided by the circuit court.

NRS operates as a nationwide broker that engages independent contractors to repossess collateral. NRS has a single client, the Hong Kong Shanghai Banking Corporation (HSBC). Formerly, NRS had as its principal client Household Bank, which has since been acquired by HSBC. During the pendency of the parties’ divorce action, HSBC was in the process of being acquired by Capital One. Although Glenn Colquitt sold his shares in NRS to his sons, he remained the face of the business and continued to draw a salary.

It was not disputed that the owners of NRS, Randy and his two stepbrothers Col-quitt, freely took cash from the business over and above their salaries. These shareholders took over $2.9 million from the business over a three-year period from 2007 to 2009, to support their hobbies and other personal activities. Randy himself gave more [sthan $45,000 worth of gifts to his girlfriend.

Both parties hired experts to provide the circuit court with opinions about the value of Randy’s shares in NRS. Both experts agreed that the full value of NRS was $3,028 million. However, their opinions as to what Andrea could realize from a sale of NRS stock varied widely.

In a pretrial deposition, Andrea’s expert, Joe Webb, a certified public accountant, stated that he calculated NRS’s value as of December 31, 2010. Although he asserted that his efforts were not intended to be relied on by anyone other than his client and him, he noted that if he were to do a valuation of NRS, he would discuss general economic conditions, industry-specific risks as well as company-specific risks, a standard value for the shares, and goodwill. According to Webb, he had great difficulty securing records and other information from NRS. He noted that he had not done a valuation because he could not agree with Andrea on the values to be used. However, in his calculation, he dropped the Mergerstat average control premium of 29.6% to 10% because Randy appeared to have some control over cash flow. Webb, conceded, however, that a buyer of 16.67% of NRS’s shares would not expect that control of cash flow would follow their purchase, which could support a discount in the value of 50%. He applied a 5% marketability discount, but acknowledged that a buyer would likely look for a more substantial discount, between 30% and 40%. Webb admitted that the discounts he chose did not conform with industry standards.

At trial, Webb testified that he discounted the value of NRS by 10%. He eschewed |4the average Mergerstat1 value because evidence that all three of the shareholders had taken money out of the company indicated that they had “control.” Further, he did not apply a separate marketability discount, though he acknowledged that the average marketability discount would be 35%. According to Webb, marketability and lack of control are closely related concepts. He further discounted the value by 6%, which took into account the possible sale of HSBC to Capital One. Finally, he attributed no “personal goodwill” to the value of NRS because Glynn Colquitt was not the owner of the business.

Randy’s expert is Certified Public Accountant David Potts. Potts testified at trial that he prepared a fair-market valuation of 33% of NRS, which complied with all industry standards. Of the three possible “approaches” to valuation — income, asset, and market — Potts found the income approach to be the most valid. He rejected asset valuation because it worked best for companies that had ceased to operate and NRS was very much still in business. Likewise, he eschewed the market approach because it depended on comparable sales of companies, and he lacked sufficient data. Using the income approach, Potts valued NRS at $3,028,000, a figure that Webb endorsed. Accordingly, a 33% interest was worth $1,008,324. Potts then applied a 30% discount for lack of control and a 35% discount for lack of marketability, which reduced the value of Randy’s shares in NRS to $458,787. He then discounted the goodwill of the business, opining that half of the goodwill was enterprise goodwill and the other half was the personal goodwill of Glynn | BColquitt, although he acknowledged that the personal goodwill could be substantially higher. In calculating the importance of Glynn Colquitt’s personal goodwill, Potts spoke with James Priester of HSBC who assured him that HSBC would follow Glynn Colquitt if he were to open a competing business. Potts noted that there were no noncompete agreements in place. After the goodwill discount, Webb believed that half of Randy’s stock would be worth no more than $115,000. In making his valuation, Webb noted that he assumed Glynn Colquitt would stay with NRS.

Andrea, who had been employed at NRS, testified that the company’s continued viability was based not only on its personal relationships, but also on its ability to quickly comply with the changing requirements of HSBC. According to Andrea, compliance with HSBC requirements outweighed the personal relationships.

In its December 8, 2011 divorce decree, the circuit court found that Randy owned a 99/300th interest in NRS. It accepted the parties’ agreed-upon value of $3,028,000, and after considering all the testimony, which included considerable information about how to discount goodwill, placed a value of $272,875 on Andrea’s interest in the business. The circuit court then awarded that entire 33% interest in NRS to Randy and offset the “unequal division of property” by awarding alimony to Andrea in the amount of $11,370 per month for a period of twenty-four months, a sum that upon full payment was approximately equal to the value of Andrea’s interest in NRS that was set by the circuit court.

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Russell v. Russell
2013 Ark. 372 (Supreme Court of Arkansas, 2013)

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Bluebook (online)
2013 Ark. 372, 430 S.W.3d 15, 2013 WL 5497709, 2013 Ark. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-russell-ark-2013.