Valencia Bartels de Nunez v. Valencia Bartels

684 So. 2d 1008, 96 La.App. 1 Cir. 1266, 1996 La. App. LEXIS 2891, 1996 WL 684191
Louisiana Court of Appeal·Decided November 15, 1996·No. No. 96 CA 1266·Published·Cited by 4 cases

Opinion

|2KUHN, Judge.

I. THE ISSUES

This appeal raises the issues of 1) whether a court in this state has the power to dissolve a foreign corporation and 2) whether a judgment ordering the dissolution of a corporation following a declaratory judgment re/* garding the corporation’s ownership constitutes a substantive amendment of the earlier judgment.

II. PROCEDURAL HISTORY

This is the second appeal arising from litigation in which plaintiff-appellee, Norma Valencia Bartels de Nunez, filed suit against her brother, defendant-appellant, Eduardo Felipe Valencia Bartels, seeking to be declared a one-half owner of the property of defendant-appellant, Forty One Corporation (“41 Corp.”), a corporation organized pursuant to the laws of Panama, which holds assets located in Louisiana,. New York and Venezuela. Felipe disputed Norma’s claim on the basis of an alleged donation of the shares to him by his father, Julio Valencia Cardoze. Norma claimed the donation was invalid because it did not comply with Venezuelan form requirements.

In the first appeal2, we addressed the issue of the validity of a donation of the bearer shares of stock of 41 Corp. and affirmed the trial court’s July 31, 1995 judgment, which recognized that Norma and Felipe each became owners of one-half of the shares of 41 Corp. on November 15,1989, the date of their father’s death. The July 31, 1995 judgment also: 1) enjoined Felipe and 41 Corp. from removing any assets from any account of 41 Corp. until they complied with the terms of the July 31, 1995 judgment, and 2) ordered Felipe to a) deliver one-half of the outstanding stock certificates of 41 Corp. to Norma, b) return all funds and assets of 41 Corp. removed by him or at his request or direction to the financial institution where such funds or assets were maintained, with legal interest from the date taken, c) render to Norma an accounting for all transactions of 41 Corp. entered into under the direction of Felipe, and d) take all steps to insure that 41 Corp. and all financial ^institutions, in which 41 Corp. maintains an account or has any monies or assets, recognize Norma’s one-half ownership interest in the stock of the corporation.

On October 12, 1995, Norma filed a rule for contempt and/or rule petitioning supplemental relief, in which she sought damages for Felipe’s failure to comply with the provisions of the July 31, 1995 judgment. She asserted she was entitled to damages in an amount equivalent to her one-half share of 41 [1010]*1010Corp., which she claims is worth at least $3.1 million. Norma further claimed she was entitled to recover this sum out of the approximately $3.5 million held in 41 Corp. accounts located in Louisiana and New York. Norma urged she was entitled to such relief pursuant to the court’s contempt authority under La.C.C.P. art. 3611 and pursuant to La. C.C.P. art. 1878 relating to declaratory relief. Alternatively, Norma sought the dissolution of 41 Corp. due to the irreconcilable differences between Felipe and herself.

A hearing was held regarding this matter on December 1, 1995, at which time Felipe’s counsel admitted Felipe had removed funds from 41 Corp. and had not returned the funds to the accounts from which they had been removed. Counsel for Felipe represented that Felipe did not have sufficient liquid assets to return the monies as required by the judgment and informed the court regarding Felipe’s efforts to comply with the accounting requirements of the July 31, 1995 judgment.

The trial court found Felipe had failed to comply with the July 31, 1995 judgment and ordered compliance on or before January 10, 19963, the date scheduled for the next hearing regarding plaintiffs rule. On January 10, 1996, Felipe’s counsel advised the court that defendants had complied with all of the requirements of the July 31, 1995 judgment except the order requiring Felipe to return the funds which he had removed.

On January 25,1996, the trial court signed a judgment granting supplemental relief in favor of Norma and against Felipe, which ordered that: 1) 41 Corp. be dissolved and all assets of the corporation be distributed between Norma and Felipe as the two owners of the | corporation; 2) because Felipe has already removed at least $2,009,000.00 from 41 Corp.’s assets over the past several years, and because legal interest of $747,146 has accrued on those sums from the date those sums were removed from 41 Corp. through the date of the July 31, 1995 judgment, Norma is entitled to receive the first $2,756,146, plus legal interest on that amount from July 31, 1995, until the date distributed; 3) any and all remaining accounts and assets of 41 Corp. shall be then divided equally between Norma and Felipe unless additional withdrawals from the 41 Corp. accounts by Felipe are established.

Defendants have appealed the January 25, 1996 judgment, raising the following assignments of error:

1. The district court erred in ordering the dissolution of 41 Corp. because it lacked the judicial power to take such action under Louisiana law.
2. The district court erred in entering the 1996 judgment because it constituted a substantive amendment of the 1995 judgment.

III. ANALYSIS

A. Power of the Court to Dissolve a Foreign Corporation

Appellants contend the district court did not have the judicial power to order the involuntary dissolution of 41 Corp., citing Wilkinson v. Wogan, 162 La. 133,110 So. 176 (1926). Appellee asserts Louisiana courts have broad authority to award supplemental relief to enforce their judgments and argues the Wilkinson case is inapplicable to this case.

In Wilkinson, plaintiffs, who claimed to be duly appointed and qualified liquidators of a Mississippi corporation, filed suit in Louisiana to recover payment on a note, which had allegedly been executed by the defendant for the purchase price of shares of the corporation. Defendant filed various exceptions to the suit, contending 1) plaintiffs had no capacity to file the suit because the Mississippi corporation had never been legally dissolved according to the laws of Mississippi and because plaintiffs had never been legally appointed or qualified as liquidators of the corporation under Mississippi laws, 2) plaintiffs had no right or cause of action against defendant, and 3) the Louisiana district court was without [ siuris diction ratione materiae (sub-[1011]*1011jeet matter jurisdiction) to entertain the proceeding. The trial court sustained the exceptions and plaintiffs appealed.

On appeal, the supreme court addressed the issues of the capacity of the liquidators to sue and the subject matter jurisdiction of the district court to entertain the suit, and affirmed the judgment of the district court. The court noted the Mississippi corporation operated under its Mississippi charter but maintained an office in the city of New Orleans and transacted business there. All of its property was located in Louisiana. The charter of the Mississippi corporation provided the corporation’s domicile was in Mississippi and that the rights and powers of the corporation were those conferred by certain provisions of the Mississippi Code of 1906.

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Valencia Bartels de Nunez v. Valencia Bartels, 684 So. 2d 1008, 96 La.App. 1 Cir. 1266, 1996 La. App. LEXIS 2891, 1996 WL 684191 (La. Ct. App. 1996).

684 So. 2d 1008 (Valencia Bartels de Nunez v. Valencia Bartels) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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