Tome Land & Improvement Co. v. Silva

494 P.2d 962, 83 N.M. 549
CourtNew Mexico Supreme Court
DecidedJanuary 21, 1972
Docket9255
StatusPublished
Cited by54 cases

This text of 494 P.2d 962 (Tome Land & Improvement Co. v. Silva) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tome Land & Improvement Co. v. Silva, 494 P.2d 962, 83 N.M. 549 (N.M. 1972).

Opinion

OPINION

MONTOYA, Justice.

In November 1968, certain stockholders filed suit in the District Court of Valencia County, New Mexico, against the Tome Land & Improvement Co., Inc., plaintiffappellee and cross-appellant, hereinafter referred to as "Tome,” seeking restraining orders against Tome from disbursing funds obtained from the sale of lands which were Tome’s principal asset. In December 1968, certain other stockholders brought suit against Tome in Valencia County alleging inter alia that, pursuant to § 51-28-4, N. M.S.A., 1953 Comp. (Repl. Vol. 8, Pt. 1, 1971 Supp.), an offer by Tome to buy the dissenting stockholders’ shares for $7,500 was wholly inadequate, and that Tome should be permanently restrained from disbursing any funds received from the sale of lands. Restraining orders in both cases were issued. An order was also entered allowing intervention of other persons who alleged they were parties to certain other actions against Tome. In January 1969, Tome filed suit in Valencia County praying that the court determine the fair value of the shares of defendants-appellants, the dissenting stockholders, to be $7,500 per share, or that the court appoint appraisers to receive evidence and recommend a decision to the trial court on the issue of fair value.

The trial court issued an order consolidating the above-mentioned causes and continued to restrain Tome from disbursing any funds from the sale of the land. Prior to trial, the parties stipulated that the principal issue for the court to determine was the fair value of the dissenting stockholders’ shares as of June 28, 1968, the day prior to the vote of two-thirds of the stockholders approving the sale of the land. ,

After trial to the court, the judge concluded that the fair value of the Tome stock, as of June 28, 1968, was $12,415.40 per share. In reaching this conclusion, the court assigned a monetary value to market, asset and investment values, then gave each of those three factors a certain weight in determining fair value. The formula used was:

Market value $ 3,500.00 x 40% = $ 1,400.00
Asset value 18,359.00x60%= 11,015.40
Investment value 0.00 x 0%= 0.00
Per share value = $12,415.40

The court also awarded interest at the rate of 6% per annum from June 29, 1968, ordered Tome to pay court costs, but denied a request that Tome pay defendants’ legal fees. It is from the decision of the trial court that appellants appeal and Tome cross-appeals.

Appellants’ main contention is that the court erred in determining the fair value of the Tome stock to be $12,415.40. In arriving at the fair value of the stock, the court determined the market value to be $3,500 per share. Appellants claim there is no substantial evidence to support this conclusion. In addition, appellants argue that the weight of 40% given market value in the overall determination of fair value was error, because the 40% weight was not supported by substantial evidence. Appellants further contend that Tome should be estopped from claiming the net asset value of each share of Tome stock was less than the book value established by Tome at $40,000. Appellants assert the court erred by not considering asset value to be the sole determining factor in arriving at fair •'value. Appellants also seek reversal of the tidal court’s judgment, because they were not awarded reasonable attorneys’ fees and interest at 6[^% per annum, instead of the 6% per annum granted by the court in its order.

The only contention of cross-appellant Tome is that the trial court erred in refusing to give investment value any weight in determining the fair value.

It is well settled in New Mexico ■that the appellate court will not substitute its judgment for that of the trial court in weighing the evidence. If the trial court’s findings are supported by substantial evidence, they must be affirmed. Cave v. Cave, 81 N.M. 797, 474 P.2d 480 (1970). Substantial evidence means such relevant evidence as a reasonable mind might find adequate to support a conclusion. Cave v. Cave, supra.

Section 51-28-4, supra, under which this action was brought, does not specify the method by which the court should determine fair value. The statute suggests the court may appoint an appraiser, but in the instant case this was not done.

In arriving at the fair value of the shares of the dissenting stockholders, the courts have been almost unanimous in using a combination of three elements of valuation: (1) Net asset value; (2) market value; and (3) investment or earnings value. Brown v. Hedahl’s-Q B & R, Inc., 185 N.W.2d 249 (N.D.1971). Then the three elements of value must be weighted in such proportions as to reasonably reflect the importance and reliability of each to the final determination of fair value. Factors which courts have traditionally considered when apportioning weight among market value, investment value and asset value are the nature of the corporation, market demand for the stock, the business the corporation is engaged in, its earnings, net assets, and other variables such as general economic conditions. See Note, Valuation of Dissenters’ Stock under Appraisal Statutes, 79 Harv.L.Rev. 1453 (1966). See also 55 Mich.L.Rev. 689 (1957).

From a reading of the cases, it appears that the appraiser, or the trial court in this case, has discretion in determining market, asset and investment value. The appraiser’s valuation is then subject to review by the trial court to determine whether it is supported upon reasonable grounds. If the appraiser’s valuation is not so supported, the trial court may substitute its own calculation of any or all of the factors. Sporborg v. City Specialty Stores, 35 Del.Ch. 560, 123 A.2d 121 (1956); Brown v. Hedahl’s-Q B & R, Inc., supra. In addition, the trial court may also examine the appraiser's allocation of weight to be given each factor and, if a proportionate weight is unreasonable in light of surrounding circumstances, the trial court may modify the allocated weight. Brown v. Hedahl’s-Q B & R, Inc., supra; In re Tudor City, Fifth Unit Inc., 17 App.Div.2d 794, 232 N.Y.S.2d 758 (1962).

The first question facing this court is whether the findings as to market, asset and investment value, as made by the trial court, are supported by substantial evidence.

Appellants contend there is no substantial evidence to support a finding that the market value of Tome stock was $3,500 per share on June 28, 1968. Market value is generally the base price at which a stock could be sold by a willing, informed seller to an informed, willing buyer. See Note, Valuation of Dissenters’ Stock under Appraisal Statutes, 79 Harv.L.Rev. supra, at 1460. Even though there was no open market on Tome stock, we believe the evidence in the records reasonably supports the conclusion that the market value of Tome stock on the date specified was $3,500.

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494 P.2d 962, 83 N.M. 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tome-land-improvement-co-v-silva-nm-1972.