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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 FIDENCIO (LENCHO) VILLALOBOS, 3 Plaintiff-Appellee, 4 v. No. 32,973
5 NICHOLAS (NICK) VILLALOBOS, and 6 VILLALOBOS CONSTRUCTION CO., INC.,
7 Defendants-Appellants.
8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 9 James T. Martin, District Judge
10 Holt Mynatt Martinez P.C. 11 Matthew P. Holt 12 Las Cruces, NM
13 Corbin Hildebrandt 14 Albuquerque, NM
15 for Appellee
16 Joseph Cervantes 17 Las Cruces, NM
18 Winchester Law Firm 19 Michael Winchester 20 Las Cruces, NM
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1 for Appellants 2 MEMORANDUM OPINION
3 VANZI, Judge. 4 {1} Fidencio (Lencho) and Nicholas (Nick) Villalobos were shareholders in
5 Villalobos Construction Co., Inc. (the Corporation). Family hostility between the 6 brothers led Lencho to file suit against Nick and the Corporation seeking damages and 7 an accounting. The lawsuit also sought dissolution of the Corporation pursuant to 8 NMSA 1978, Section 53-16-16 (1967). The district court dismissed Lencho’s claims 9 for an accounting and damages. However, the court found that it was authorized to act 10 pursuant to Section 53-16-16 to liquidate the assets and business of the Corporation. 11 Concluding that the remedy of dissolution was too drastic, the court invoked its 12 equitable jurisdiction and instead ordered the Corporation to purchase Lencho’s shares 13 of stock. 14 {2} Nick and the Corporation filed a timely appeal and raise several issues which 15 we reorganize as follows: (1) whether there is substantial evidence to support the 16 district court’s finding of oppressive conduct under Section 53-16-16; (2) whether the 17 district court erred in exercising its equitable jurisdiction under Section 53-16-16 18 rather than enforcing a Buy-Sell Agreement among the shareholders and the 19 Corporation; and (3) whether the court erred in its valuation of Lencho’s stock interest
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1 and in awarding prejudgment interest on the entire amount of the Judgment. We 2 reverse the court’s award of prejudgment interest and affirm on all other issues. 3 BACKGROUND 4 {3} Nick Villalobos Construction Co., Inc., was incorporated in 2001 with Nick as 5 its sole owner and shareholder. Its primary business was to bid on, and perform, 6 highway bridge and road construction throughout New Mexico. In 2007, Nick and 7 Lencho discussed going into business together and, in February 2008 Nick formally 8 offered Lencho a fifty percent (50%) interest in the Company. That same month, the 9 Company adopted certain resolutions, including offering 1,000 shares of common 10 stock to Lencho and resolving to change its name to Villalobos Construction Co., Inc. 11 (the Corporation). Both the February 2008 resolutions and written offer of stock 12 required all of the shareholders of the new corporation to enter into a Buy-Sell 13 Agreement. 14 {4} On March 18, 2008, Lencho formally accepted the offer to purchase 1,000 15 shares of stock for $1.00 per share, reflecting a 50% ownership of the Corporation. On 16 the same day, Lencho and Nick signed an agreement with respect to issuance of 17 common stock in the company, as well as the Buy-Sell Agreement, individually and 18 in their representative capacities on behalf of the Corporation. The brothers’ 19 respective spouses were part of, and also signed, the corporate documents and Buy-
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1 Sell Agreement. The brothers believed that the Corporation would need about 2 $500,000 in startup money, and they agreed that each would contribute $250,000 to 3 the venture. Nick had previously deposited $252,632.22 into the Corporation’s bank 4 account and so Lencho wrote a check for—and deposited—the same amount. 5 {5} The impetus for organizing the new entity arose out of the brothers’ desire to 6 bid on a highway bridge construction project near Mora, New Mexico (the Mora 7 Project). The Corporation was awarded the Mora Project in February 2008 and 8 sometime in March or April construction on the project began. Papers filed with the 9 State establish that Lencho was assigned as the superintendent and Nick as project 10 manager. 11 {6} Almost immediately, there was discord between Nick and Lencho. The two 12 were unable to agree on virtually anything, including the material terms and 13 conditions for the management of the operations or even on their respective roles in 14 the Corporation. Their disagreements and mutual animosity eventually culminated in 15 an August 2008 exchange of correspondence concerning the possible termination of 16 the business relationship. Nick initiated the process stating that he wanted to buy out 17 Lencho’s interest in the Corporation “at a price and purchase terms fair to both 18 parties[.]” For reasons that are unclear, no buy out took place and, in October 2008 19 Lencho formed his own construction company which began to bid and contract for
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1 highway construction work. At that time, all communications between Nick and 2 Lencho ceased. 3 {7} In May 2010 Lencho filed suit against Nick and the Corporation in the Third 4 Judicial District Court seeking an action for damages and an accounting, as well as for 5 dissolution of the Corporation. In his answer, Nick alleged that he and his wife were 6 the sole officers of the Corporation and disputed that Lencho was ever a shareholder. 7 The district court bifurcated the proceedings and, at the close of the first trial, held that 8 Lencho was and remained an “equal 50%” shareholder in the Corporation. That ruling 9 was not appealed. 10 {8} The second phase of the trial was tried in three days, including two days in 11 August and a third in December 2012. The district court granted a directed verdict on 12 Count I of the amended complaint finding that the relief for an accounting was moot 13 because the financial records had been produced by the Corporation’s bookkeeper and 14 accountant. Further, the court found that the relief sought in Count I for damages 15 based on misappropriation of corporate assets was without evidentiary support. The 16 district court’s dismissal with prejudice of Count I is also not part of this appeal. 17 {9} The matter then proceeded to trial on Count II of the amended complaint—the 18 petition for dissolution of the Corporation pursuant to Section 53-16-16. After the 19 close of evidence, the district court entered its findings of fact and conclusions of law.
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1 Ultimately, the court invoked its equitable jurisdiction and ordered that “the complaint 2 shall be amended so as to ask for the forced sale of corporate assets to reimburse 3 Lencho Villalobos for his 50% share of the corporation.” The court found that the 4 book value of the Corporation was $1,198,165 and that the Corporation therefore 5 owed Lencho $599,082.50 plus interest at the rate of 9.375% per annum from 6 February, 22, 2008, the date he first invested in the Corporation, until December 28, 7 2012. We discuss the grounds of the district court’s decision more fully below. 8 DISCUSSION 9 Standard of Review 10 {10} In reviewing a judgment entered after a bench trial, we review the district 11 court's application of the law to facts de novo while reviewing the district court’s 12 findings of fact for substantial evidence. Skeen v. Boyles, 2009-NMCA-080, ¶ 17, 146 13 N.M. 627, 213 P.3d 531. In reviewing facts found by the district court, we consider 14 whether substantial evidence supports the result reached, not whether there is 15 substantial evidence to support the opposite result. Id. “Substantial evidence is 16 relevant evidence that a reasonable mind would find adequate to support a 17 conclusion.” Sitterly v. Matthews, 2000-NMCA-037, ¶ 22, 129 N.M. 134, 2 P.3d 871.
18 The District Court’s Jurisdiction to Liquidate the Assets and Business of the 19 Corporation Pursuant to Section 53-16-16
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1 {11} Section 53-16-16 provides a procedure whereby a district court may order the 2 dissolution of a corporation. In relevant part, Section 53-16-16(A)(1) provides:
3 A. The district courts may liquidate the assets and business of a 4 corporation:
5 (1) in an action by a shareholder when it is established that:
6 (a) the directors are deadlocked in the management of the 7 corporate affairs and the shareholders are unable to break the deadlock. 8 . . .; or
9 (b) the acts of the directors or those in control of the 10 corporation are illegal, oppressive or fraudulent; or
11 (c) the shareholders are deadlocked in voting power, and have 12 failed, for a period which includes at least two consecutive annual 13 meeting dates, to elect successors to directors . . . .; or
14 (d) the corporate assets are being misapplied or wasted[.] 15 {12} Lencho’s complaint sought dissolution of the Corporation under all of the above 16 provisions. After trial, the district court found that Nick “froze” Lencho out of 17 important decisions concerning the Corporation, did not keep him advised of 18 corporate activities, and prohibited Lencho from “participating in corporate affairs.” 19 Further, the district court found that the continued co-ownership of the Corporation 20 by the two brothers was impractical. The district court noted that it could liquidate the 21 assets and business of the Corporation pursuant to its authority under Section 53-16- 22 16. However, relying on McCauley v. Tom McCauley & Son, Inc., 1986-NMCA-065, 23 104 N.M. 523, 724 P.2d 232, it instead exercised its equitable jurisdiction and
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1 required the Corporation to purchase Lencho’s shares for one-half of the book value 2 of the company. 3 {13} On appeal, Nick argues that the district court erred in allowing this matter to 4 proceed on a theory of dissolution under Section 53-16-16 and that the court’s reliance 5 on McCauley was also erroneous. He first argues that, assuming the statute applies, 6 the district court erred in exercising its equitable discretion under Section 53-16-16 7 because there was not substantial evidence of any oppressive conduct by a majority 8 shareholder as to a minority shareholder. Second, Nick contends that Section 53-16-16 9 does not apply in this case because Lencho was contractually bound by the Buy-Sell 10 Agreement and its terms establishing a valuation formula for the stock as well as the 11 rate of interest. Indeed, the application of the Buy-Sell Agreement is the primary focus 12 of Nick’s argument on appeal much as it was throughout the proceedings below. 13 Although the district court’s findings and conclusions are not a model of clarity, Nick 14 misinterprets the court’s rulings with respect to the statutory issue. We conclude that 15 the Buy-Sell Agreement was not triggered and does not control the parties’ claims in 16 the circumstances of this case. 17 {14} With regard to Nick’s first argument—that there was not substantial evidence 18 of his oppressive conduct—our review of the district court’s findings and conclusions 19 make clear that the court never made any finding of minority shareholder oppression
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1 either as a general matter, or specifically under either Section 53-16-16(A)(1)(b) or 2 McCauley. In fact, the district court never stated which provision of Section 53-16-16 3 it was relying on to dissolve the Corporation, finding only generally that “the 4 circumstances described in Section 53-16-16 . . . are present here[.]” We assume those 5 “circumstances” to encompass any of the statutory provisions authorizing a court to 6 dissolve a corporation including when the directors are deadlocked in the management 7 of the corporate affairs, the acts of the directors are illegal, oppressive or fraudulent, 8 when the shareholders are deadlocked in voting power, or when the corporate assets 9 are being misapplied or wasted. See § 53-16-16(A)(1)(a)-(d). And, although McCauley 10 dealt with oppressive conduct by majority shareholders against the plaintiff, contrary 11 to Nick’s assertions, the district court here did not rely on that case to support a 12 finding of oppressive conduct. Rather, the court relied on McCauley for the general 13 proposition that in appropriate circumstances, a district court may exercise its 14 equitable jurisdiction to fashion a remedy less extreme than requiring that a 15 corporation’s assets be wholly dissolved. See McCauley, 1986-NMCA-065, ¶ 15 16 (noting that “[a]n order of corporate dissolution is a drastic remedy and should be 17 utilized sparingly, after consideration of other alternative forms of relief”). 18 {15} We have carefully examined the record and find that there was substantial 19 evidence to support the district court’s broad factual finding with respect to the
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1 application of at least two of Section 53-16-16’s provisions. Specifically, there was 2 substantial trial testimony that the directors were deadlocked in the management of 3 the corporate affairs and that the shareholders were unable to break the deadlock since 4 Nick and Lencho each held 50% of the shares. Further, Nick and Lencho were 5 deadlocked in voting power and never held a meeting of the shareholders or of the 6 board of directors from March 2008 until at least February 2013. Consequently, at 7 least two provisions of Section 53-16-16 authorized the district court in this case to 8 dissolve the Corporation. 9 {16} The district court enigmatically found that the Buy-Sell Agreement was 10 “applicable in general” but then refused to apply it because it would result in an 11 unconscionably low value for Lencho’s half of the Corporation. We conclude that the 12 district court’s finding as to applicability is not supported by substantial evidence. We 13 explain. 14 {17} Generally, a buy-sell agreement is a contract by which the stockholders of a 15 closely held corporation seek to maintain control over the ownership and management 16 of their business by restricting the transfer of its shares. See Black’s Law Dictionary 17 242 (10th ed. 2014) (defining a “buy-sell agreement” as “[a] share-transfer restriction 18 that commits the shareholder to sell, and the corporation or other shareholders to buy, 19 the shareholder’s shares at a fixed price when a specified event occurs”). The typical
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1 agreement provides for the mandatory or optional repurchase of a stockholder’s shares 2 by the corporation or by the other stockholders upon the occurrence of a certain event. 3 Id. Here, the Buy-Sell Agreement provided that its provisions were triggered by a 4 stockholder’s death, disability, termination of marriage by death or divorce, an 5 involuntary disposition such as a declaration of bankruptcy, or termination of 6 employment. Nick contends that the triggering event was the termination of Lencho’s 7 employment relationship with the Corporation. We disagree. 8 {18} First, Nick points to nothing in the record or the district court’s findings and 9 conclusions establishing that either he or Lencho had an employment relationship with 10 the Corporation. See Black’s Law Dictionary 641 (10th ed. 2014) (defining 11 “employment” as “[t]he quality, state, or condition of being employed; the condition 12 of having a paying job” or “[w]ork for which one has been hired and is being paid by 13 an employer”). Here, there is no employment contract, no showing that Nick or 14 Lencho were hired to work for the Corporation, and testimony from both brothers that 15 neither took a salary. The sole basis for Nick’s assertion that Lencho was an employee 16 is that, after October 2008, Lencho abandoned the Mora Project and any role in future 17 construction projects; he “did not exercise or attempt to exercise any continuing role 18 in the management, finances, or labors” of the Corporation; he did not receive or
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1 request any meeting notices, corporate records or financial information; nor did he 2 make any attempt to communicate with Nick. 3 {19} The record is replete with indications that Nick himself did not believe that the 4 Buy-Sell Agreement applied to the situation the brothers found themselves in. For 5 instance, Nick admits that in August 2008, he “initiated a process to buy out 6 [Lencho’s] interest, if any, in the [Corporation]” and that he sought “to arrive at a 7 price and purchase terms fair to both parties[.]” In that regard, he asked Kristi 8 Micander, the CPA for the Corporation, to provide him with the method by which she 9 intended to “value [Lencho’s] interest in the [C]orporation and the basis for that 10 opinion.” Micander testified that she understood that the termination of the brothers’ 11 relationship was “going to occur by way of voluntary purchase of [Lencho’s] interest 12 in the [C]orporation.” Yet Nick himself never attempted to invoke the terms of the 13 Buy-Sell Agreement even though in the course of the litigation he has steadfastly 14 maintained that Lencho voluntarily terminated his employment in the late summer and 15 early fall of 2008. Nick’s own disregard of any contractual commitment contained in 16 the Buy-Sell Agreement with regard to the purchase price of the stock suggests he did 17 not contemplate its application to the termination of the brothers’ business 18 relationship.
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1 {20} Even assuming that Lencho terminated his employment with the Corporation, 2 the Agreement provides that the sale/purchase of stock “shall be not later than ninety 3 (90) days” following the shareholder’s termination of employment. (Emphasis added.) 4 Thus, in order to seek relief under the Buy-Sell Agreement, the sale of Lencho’s 5 shares and purchase of those shares by the Corporation should have taken place by the 6 end of January 2009 at the very latest. It did not. Nick and the Corporation’s failure 7 to act in accordance with this mandatory term is a persuasive circumstance supporting 8 the conclusion that from the parties’ point of view the Buy-Sell Agreement was not 9 triggered and does not apply. 10 {21} Finally, we note that the Buy-Sell Agreement provides that if “any controversy 11 or claim arising out of this Agreement cannot be settled by the parties, the controversy 12 or claim will be settled by Arbitration.” (Emphasis added.) This provision is clear 13 beyond dispute—the Buy-Sell Agreement requires arbitration of all disputes between 14 Nick and Lencho arising under it, including the valuation provision triggered by the 15 relevant event. See, e.g., Thriftway Mktg. Corp. v. State, 1992-NMCA-092, ¶ 8, 114 16 N.M. 578, 844 P.2d 828 (stating that under the rules of statutory construction, the 17 words “shall” and “will” are mandatory and “may” is permissive or directory). Nick 18 never invoked the arbitration provision when the troubles between him and Lencho 19 arose, and he never asked the district court to compel arbitration once the litigation
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1 was filed. In our view, the fact that Nick did not initiate a buy out under the 2 Agreement once he believed that Lencho had terminated his employment, coupled 3 with the Agreement’s mandatory sale/purchase within ninety days following the 4 termination, and the mandatory arbitration provision all support the conclusion that 5 the Buy-Sell Agreement does not apply to this dissolution action. 6 {22} In reaching our result, we have not lost sight of the fact that shareholder 7 agreements are normally enforceable as a matter of contract, and we recognize that 8 one generally may not seek a dissolution of a corporation to avoid the consequences 9 of a buy-sell agreement. However, we conclude that under the circumstances of this 10 case, the Buy-Sell Agreement does not apply and Lencho could properly seek redress 11 through a dissolution proceeding requiring an accounting. We consider next the 12 question of the district court’s valuation method including the award of prejudgment 13 interest. 14 The Valuation of the Stock and the Interest Assessed 15 {23} Nick argues that the district court erred in its valuation of stock and 16 corresponding award of prejudgment interest. The district court rejected the valuation 17 formula in the Buy-Sell agreement, as well as the valuations calculated by the two 18 accounting experts, and instead assessed the book value of the Corporation at 19 $1,198,165. Nick makes absolutely no argument on appeal as to how or why the
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1 district court erred in its valuation method and we therefore do not address whether 2 the evidence was sufficient to support the court’s findings and conclusions on this 3 issue. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 4 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] 5 arguments might be.”) 6 {24} With respect to the prejudgment interest rate, the district court found that based 7 on the book value, the Corporation owed Lencho $599,082.50 plus interest at the rate 8 of 9.375% per annum from February, 22, 2008, the date he first invested in the 9 Corporation, until December 28, 2012. This rate of interest, according to the court, 10 reflected “Lencho’s actual cost of his investment, plus the prime rate of interest.” The 11 total award of $924,955.98 continued to accrue post-judgment interest at a rate of 12 8.75% per annum, until paid. We agree with Nick that the district court’s imposition 13 of a 9.375% prejudgment interest rate beginning in February 2008 for the entire 14 amount of the judgment—a total of $325,873.48—was error. 15 {25} Awarding prejudgment interest is left to the sound discretion of the district 16 court. See Abeita v. N. Rio Arriba Elec. Coop., 1997-NMCA-097, ¶ 44, 124 N.M. 97, 17 946 P.2d 1108. We will reverse a district court’s failure to award prejudgment interest 18 only upon an abuse of that discretion. Martinez v. Pojoaque Gaming, Inc., 2011-
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1 NMCA-103, ¶ 20, 150 N.M. 629, 264 P.3d 725. A district court does not abuse its 2 discretion if its reasons are supported by logic and not contrary to reason. Id. ¶ 21. 3 {26} Prejudgment interest is governed by statute. NMSA 1978, § 56-8-4(B) (2004) 4 provides that:
5 [u]less the judgment is based on unpaid child support, the court in its 6 discretion may allow interest of up to ten percent from the date the 7 complaint is served upon the defendant after considering, among other 8 things:
9 (1) if the plaintiff was the cause of unreasonable delay in the 10 adjudication of the plaintiff's claims; and
11 (2) if the defendant had previously made a reasonable and timely offer 12 of settlement to the plaintiff.
13 Section 56-8-4(B) is designed to facilitate settlement and prevent delay. Lucero v. 14 Aladdin Beauty Colls. Inc., 1994-NMSC-022, ¶ 10, 117 N.M. 269, 871 P.2d 365. 15 Additionally, the “two factors listed in Section 56-8-4(B) are not exclusive; the 16 [district] court should take into account all relevant equitable considerations that 17 further the goals of Section 56-8-4(B).” Gonzales v. Surgidev Corp., 1995-NMSC- 18 036, ¶ 59, 120 N.M. 133, 899 P.2d 576. 19 {27} In this case, the district court’s award of prejudgment interest at the 9.375% has 20 no support in the record. And it fails in several respects. First, there is no dispute that 21 Lencho made a $252,000 capital investment in the Corporation in February 2008. The 22 district court valued Lencho’s stock interest in the Corporation as of December 31,
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1 2008. Yet the court computed the prejudgment interest on the December 31, 2008, 2 valuation going back ten months to February 2008. At the very least, the district court 3 improperly duplicated the recovery to Lencho and prejudgment interest—to the extent 4 it was recoverable—could only be applied to the $252,000 capital contribution made 5 in February 2008. 6 {28} Second, and more importantly, the district court made no findings explaining 7 why prejudgment interest was recoverable in this case. It made no finding that Nick 8 made unreasonable and untimely settlement offers or that he unduly delayed 9 resolution of the case. Further, the court did not find that prejudgment interest would 10 serve the interests of justice. Consequently, we conclude that the district court abused 11 its discretion in awarding prejudgment interest in the amount of $325,873.48 and 12 reverse the district court on this issue. 13 CONCLUSION 14 {29} For the foregoing reasons, we reverse the district court’s award of prejudgment 15 interest and affirm on all other issues. 16 {30} IT IS SO ORDERED.
17 __________________________________ 18 LINDA M. VANZI, Judge
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1 WE CONCUR:
2 _______________________________ 3 MICHAEL D. BUSTAMANTE, Judge
4 __________________________________ 5 J. MILES HANISEE, Judge