Thornton ex rel. Laneco Construction Systems, Inc. v.. Lanehart

723 So. 2d 1113, 97 La.App. 1 Cir. 2870, 1998 La. App. LEXIS 3758, 1999 WL 4456
CourtLouisiana Court of Appeal
DecidedDecember 28, 1998
DocketNo. 97 CA 2870
StatusPublished
Cited by6 cases

This text of 723 So. 2d 1113 (Thornton ex rel. Laneco Construction Systems, Inc. v.. Lanehart) 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
Thornton ex rel. Laneco Construction Systems, Inc. v.. Lanehart, 723 So. 2d 1113, 97 La.App. 1 Cir. 2870, 1998 La. App. LEXIS 3758, 1999 WL 4456 (La. Ct. App. 1998).

Opinion

_|PARRO, J.

This appeal is one of three arising out of a single lawsuit filed by Gary W. Thornton, a minority shareholder in a closely-held corporation, Laneco Construction Systems, Inc. (Laneco).1 The lawsuit asserted direct and derivative claims against the majority shareholders, John W. Lanehart and James Bradley Lanehart, who are officers and directors of Laneco, for actions they took after Thornton resigned as an officer and director of the company. In this appeal, Thornton challenges a trial court judgment that granted a writ of mandamus, directing the Laneharts to produce certain records of the corporation for inspection and copying by Thornton, but limiting that production because Thornton had formed a company in direct competition with Laneco. We affirm.

FACTUAL BACKGROUND

In July 1987, Thornton bought a one-third interest in Laneco. He, John W. Lanehart, and James Bradley Lanehart each owned 433 shares and each also held a position with the company as an officer and director. In March 1996, Thornton abruptly resigned as president and the following month, he also resigned from the board of directors. Immediately before resigning from the board and leaving Laneco, Thornton incorporated a competing company, Thornco, Inc. (Thornco). Both Laneco and Thornco are in the business of commercial construction of drywall, steel stud walls, drywall finishing, ceilings, and application of synthetic plaster. All parties concede that Thornco is a direct and effective competitor of Laneco, often bidding on the same jobs. In fact, as early as May 1996, Thornco was the successful bidder against Laneco on a major project in Baton Rouge.

On November 13, 1996, through a letter from his attorney, Thornton asked for certain financial and other information concerning Laneco.2 Counsel for Laneco delivered some of the requested information on November 20, 1996, but refused to kprovide certain information, claiming some of the requested reports were not yet complete and some information would not be provided because it was confidential and its disclosure would put Laneco at a competitive disadvantage vis-a-vis Thornco. On November 26, 1998, Thornton filed a lawsuit seeking, among other things, a writ of mandamus directed to the Laneharts, compelling them to produce the Laneco records, pursuant to LSA-R.S. 12:103. After a hearing on Thornton’s rule to show cause why such records should not be produced, the trial court granted the writ of mandamus, subject to certain limitations. In this appeal, Thornton contends the court erred by limiting his inspection, by not finding the Laneharts in bad faith, and by not [1115]*1115awarding damages for their bad faith refusal to allow him to inspect the records of Laneco.

APPLICABLE LAW

A shareholder’s right to examine the books and records of a corporation in which he holds an ownership interest is governed by LSA-R.S. 12:103, which provides, in pertinent part:

D. (l)(a) Upon at least five days’ written notice[,] any shareholder, except a business competitor, who is and has been the holder of record of at least five percent of the outstanding shares of any class of a corporation for at least six months shall have the right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the records and accounts of the corporation and to make extracts therefrom.
* * * * * *
(2) In case of stock held or acquired by ... a business competitor or a person who owns stock or is otherwise interested in a corporation that is a business competitor, he or it must own not less than twenty-five percent of all outstanding shares of the corporation for a period of six months before he or it may demand the rights and privileges as set forth in this Subsection.
(3) Nothing contained in this Subsection shall impair the power of the court:
(a) To deny the right of inspection as to confidential matters; or
(b) To order the production of documents pursuant to and subject to the limitations of applicable provisions of the Code of Civil Procedure.

¡jThe penalties for refusing to allow inspection of the corporation’s records are provided in LSA-R.S. 12:172(D), as follows:

Any corporation, or any officer or agent thereof, which or who shall in bad faith refuse to permit the exercise of inspection rights as defined in, and limited by, R.S. 12:103, shall be liable to the shareholder or shareholders seeking to exercise such rights to the extent of the costs and expenses of any proceeding necessary to enforce such inspection rights, and for any other damages actually sustained by such shareholder or shareholders.

The leading case concerning the scope of production under LSA-R.S. 12:103 is Matherne v. Heffron, 496 So.2d 446 (La.App. 1st Cir.1986). In Matheme, this court examined the intent of the statute to determine which corporate records are subject to examination by the requesting shareholder, and held that the shareholder was entitled to examine:

1. The general ledger of the corporation which shows the cumulative total of all its charts of accounts including its assets and liabilities, gains and losses. This book of account will show the financial position of the corporation at any given time based upon all of its resources.
2. Cash journal of all receipts. This book of account reflects every penny received by the corporation, item by item, listing from whom it was received and the amount received. In addition it list[s] deposits made by the corporation.
3. Cash journal of all disbursements made by the corporation. This book of account reflects every disbursement made by [the corporation,] showing the individual or corporation to whom it was disbursed and the amount of the disbursement.
4. Each unaudited quarterly financial statement of the corporation reflecting the revenues[, their] sources[,] and the expenses of operation of [the corporation].
5. The audited financial statements of [the corporation,] reflecting its overall standing on a semi-annual and annual basis.
6. The record books of all the proceedings of the shareholders and directors and any committees or boards of the corporation, including minutes of shareholders and board of directors meetings, share register book, and all corporate records of [the corporation].
7. Any and all State and Federal tax returns filed by [the corporation].

Matheme, 496 So.2d at 448-49. The court in Matheme rejected the shareholder’s request to examine the originals of every cancelled check, deposit slip, or invoice of the ^corporation, and accepted the corporation’s [1116]*1116suggestion that the above list of records would be an appropriate disclosure under the statute. The court specifically noted that the record did not establish whether the requesting shareholder was a business competitor of the corporation.

In Naquin v. Air Engineered Systems & Services, Inc., 463 So.2d 992 (La.App. 3rd Cir.), writ denied,

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723 So. 2d 1113, 97 La.App. 1 Cir. 2870, 1998 La. App. LEXIS 3758, 1999 WL 4456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-ex-rel-laneco-construction-systems-inc-v-lanehart-lactapp-1998.