Thai Chili, Inc. v. Bennett

76 A.3d 902, 2013 WL 5371933, 2013 D.C. App. LEXIS 638
CourtDistrict of Columbia Court of Appeals
DecidedSeptember 26, 2013
DocketNo. 11-CV-248
StatusPublished
Cited by2 cases

This text of 76 A.3d 902 (Thai Chili, Inc. v. Bennett) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thai Chili, Inc. v. Bennett, 76 A.3d 902, 2013 WL 5371933, 2013 D.C. App. LEXIS 638 (D.C. 2013).

Opinion

BECKWITH, Associate Judge:

This case arises from a dispute over the ownership and control of two restaurants — Thai Chili and Sushi Go Round— located in Gallery Place in the District of Columbia’s Chinatown neighborhood. Appellants Somchai Phongsvirajati and Cha-veevarn Kawano (the Managers) are the former managers of the two restaurants. Appellees Neiyana Chotikul, Jeffrey Choti-kul, Atit Phutilikit, Joanne Duangmanee, and Thanakorn Duangmanee (the Shareholders) 1 are investors in the closely held corporations controlling the restaurants, which operate as a single business venture but are separately incorporated as Thai Chili, Inc., and Miso Hungry, Inc. Not long after the restaurants opened for business in the summer of 2005, the Managers filed this lawsuit, alleging a hostile takeover by the Shareholders. The Shareholders [904]*904brought various counterclaims alleging a breach of fiduciary duty and seeking a determination of corporate ownership. After five years of combative litigation, Superior Court Judge Robert Richter ruled that the Shareholders held a majority interest in the companies by a slim margin.

On appeal, the Managers primarily contend that in reaching that decision, the court failed to conduct a proper de novo review, under Super. Ct. Civ. R. 53, of a lengthy Auditor-Master’s report containing numerous evidentiary findings and conclusions of law that the trial court ultimately adopted. They also challenge the trial court’s view of the facts on several central questions. We conclude that the trial court’s review complied with Rule 53 and its factual findings were not clearly erroneous. We affirm the judgment of the Superior Court.

I. Background

In the spring of 2004, Mr. Phongsviraja-ti and Ms. Kawano settled upon Gallery Place as a location for two new restaurants and filed articles of incorporation for the restaurants, naming Mr. Phongsvirajati as the sole director of each corporation and authorizing the issuance of 1000 shares of common stock, valued at one dollar per share.2 Before the leases on the restaurant spaces were signed,3 the Managers, who anticipated a $288,000 payment from the landlord to improve the rented space and who intended to invest $400,000 themselves ($300,000 from Mr. Phongsvirajati and $100,000 from Ms. Kawano), reached out to potential investors among their family, friends, and acquaintances and initially secured an additional $300,000 in pledged investments from Neiyana Chotikul and Atit Phutilikit, who each pledged $50,000, and Paipan Asawareongchai and Prapee-suk. Bennett, who each pledged $100,000.

The prospective total investment capital (not including the landlords construction allowance) was subsequently increased from $700,000 to $900,000 when in March of 2005, Ms. Kawano reported that an additional $200,000 was needed to allow the restaurants to open, and Neiyana Choti-kul’s children, Jeffrey Chotikul and Joanne Duangmanee, agreed to invest $50,000 and $100,000, respectively. Mr. Phongsvirajati also contacted his niece, Siriphen Thamvi-chai, who agreed to invest $50,000 — money that eventually was invested in Ms. Tham-vichai’s name by Somchai Phongsvirajati’s spouse.

Thai Chili opened for business on May 8, 2005. Later that month, Neiyana Choti-kul, who had been named the restaurants’ treasurer two weeks earlier at a shareholder meeting, gained access to the restaurants’ bank statements, at which time she discovered that the Managers had yet to deposit their full capital contributions in the corporation bank accounts.4 The following week, the Managers determined, after meeting with the contractor, that more money was needed in order to open Sushi Go Round. Neiyana Chotikul, who suspected that the unexpected deficit was attributable to the Managers’ failure to make their lump sum payments, testified that “if you have $900,000 at April 23rd, [905]*905the restaurant doesn’t have [a] problem.” Joanne Duangmanee agreed to deposit an additional $50,000 on July 22, 2005, raising the total invested and anticipated capital to $950,000.5 The crisis was averted and Sushi Go Round opened for business on August 8, 2005.

Not long thereafter, things went very wrong. In October of 2005, some of the Shareholders, frustrated with the failure of the Managers to issue shares and with perceived improprieties in the management of the businesses, took steps to gain more control over the day-to-day operation of the restaurants. The Managers challenged these actions by filing a lawsuit, and though the Shareholders quickly relinquished their temporary control of the restaurants, they filed a counterclaim seeking a determination of the ownership percentage in the restaurant corporations to which each party was entitled.6 On July 26, 2007, Superior Court Judge Judith Retchin referred the matter to an Auditor-Master for an accounting of the parties’ capitalization and of the restaurants’ income and expenses. Between June 2008 and January 2009, the master held twenty-three days of evidentiary hearings, taking testimony — much of it translated from Thai— from the Managers, the Shareholders, and accountants hired by both sides to examine the restaurants’ financial records.

The heart of the Managers’ claims before the master was that Somehai Phong-svirajati and Chaveevarn Kawano together had acquired a majority interest in the restaurants through a combination of directly deposited investment capital and numerous cash and credit purchases ' they made to get the restaurants up and running. They contended that there was no limit on the capital contributions Mr. Phongsvirajati could claim, and that between his cash deposits and purchases and the value of certain liabilities he had incurred, he had invested substantially more than the $800,000 he had pledged. The Managers also contended, somewhat contradictorily, that Ms. Kawano had a subscription-for-shares agreement, such that $20,000 she deposited into the corporate account on December 12, 2005, well after the start of litigation in this case, should still count toward her capital credit.

The Shareholders countered that the parties had agreed that the total capital contribution by all parties was limited to $950,000, which they believed was the approximate cost of opening the restaurants for business. In the Shareholders’ view, the Managers could contribute no more than the $400,000 they had pledged, or 42.1 percent of the investment capital, and in any event they had not even contributed that much, as Mr. Phongsvirajati had only deposited $260,000 of his pledged $300,000 and Ms. Kawano had only deposited $80,000 of her pledged $100,000 for a total of $840,000. The Shareholders also claimed that the Managers had misappropriated corporate revenues for personal purposes and to fund other business ventures.

The master’s task was thus to determine whether there was a binding agreement among the parties to invest in the restaurants and issue shares, what its terms were, what actual contributions were made by Mr. Phongsvirajati and Ms. Kawano, [906]*906and how shares were to be apportioned among the parties given their respective contributions. In trying to resolve this dispute, the master sifted through a heap of documents, heard testimony over several months, and made dozens of findings in a fifty-six page report.

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Cite This Page — Counsel Stack

Bluebook (online)
76 A.3d 902, 2013 WL 5371933, 2013 D.C. App. LEXIS 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thai-chili-inc-v-bennett-dc-2013.