Zokoych v. Spalding

463 N.E.2d 943, 123 Ill. App. 3d 921, 79 Ill. Dec. 389, 1984 Ill. App. LEXIS 1779
CourtAppellate Court of Illinois
DecidedMay 4, 1984
Docket82-2186
StatusPublished
Cited by8 cases

This text of 463 N.E.2d 943 (Zokoych v. Spalding) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zokoych v. Spalding, 463 N.E.2d 943, 123 Ill. App. 3d 921, 79 Ill. Dec. 389, 1984 Ill. App. LEXIS 1779 (Ill. Ct. App. 1984).

Opinion

JUSTICE WILSON

delivered the opinion of the court:

This appeal arises from the third trial between plaintiff and defendants where evidence was presented on the question of the value of Ample Tool and Manufacturing, Inc. (Ample), a closely held company in which Stephen Zokoych and Bruce Spalding (Spalding) were the principal shareholders. Ample ceased doing business in 1970.

In the first appeal (Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, 344 N.E.2d 805) we affirmed the trial court’s award to plaintiff of compensatory damages and further held that because defendants were guilty of fraud and conspiracy, the court’s award of punitive damages was not an abuse of discretion. The court’s decision that the evidence did not establish a value for Ample was reversed, however, and the case was remanded with directions to determine the value of Ample and to award plaintiff additional damages for one-half that amount.

Four years later this matter was again presented on appeal, this time by plaintiff, and in a second decision we reversed the trial court’s finding that Ample had no value beyond the net value of its assets. (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 405 N.E.2d 1220.) Because of the retirement of the first judge and the demise of the second, we remanded for a trial de novo to determine the actual value of Ample as of May 1970. The trial court found that Ample’s value was $420,000 and entered judgment for plaintiff, along with prejudgment interest in the amount of $127,047 which was calculated at the statutory rate of 5% per year from 1970. Defendants now appeal. The allegations presented for review are: (1) whether the trial court improperly relied on testimony given by plaintiff’s expert witness, John Langum, as to the value of Ample; and (2) whether the award of prejudgment interest was improper. We affirm in part and reverse in part.

First, plaintiff presented two witnesses who testified as to the value of Ample based on the 10-month period (July 1969 to April 1970) prior to Spalding’s fraudulent transfer of the company’s machinery and equipment. Both of these witnesses, Dr. John K. Langum, an economist, and Joseph McCauley, a Chicago businessman, had previously testified in the earlier trials.

Langum first explained that for closely held corporations, there are generally two methods to determine stock value. The first value, which in Langum’s judgment was more useful, is to capitalize the earnings of a privately held company, which initially calls for ascertaining the amount of net income of the company and then multiplying the amount by a determined price-earnings ratio. 1 Since there are no market prices for the stock of a privately held corporation, one must look at the price earnings ratio of the most comparable public companies with listed stock. The second method of evaluation is to relate the price at which a company is purchased to its book value. The market book value is not as acceptable or efficient as the capitalization of earnings method but is sometimes used, Langum stated. Although he used this second method, it was only to check his “basic evaluation.”

In Langum’s judgment, after studying Ample’s tax returns for 1962 through 1970, its financial statements for 1969 and 1970 as well as other factors, the market value of Ample as of April 30, 1970, was $420,000. This figure was based on the company’s net income as of April 1970 of $60,000 and a price earnings ratio of seven. Langum then explained that in order to obtain the $60,000 figure he relied on the records and statements of Ample’s accountant, Jack Schwartz, who testified at the first trial that Ample’s net income for the 10-month period of July 1969 to April 1970 was approximately $50,000. Langum then divided this figure by 10 and multiplied it by 12 in order to yield an annual rate. The 10-month period was used in his analysis because the tool and die industry had recovered from an industry recession by that time. Also, in 1970 Ample’s sales volume had increased 55% over what it was in 1962. There was a “good market” and “market possibilities [were] being utilized,” Langum stated. Langum then explained that he selected 32 companies to compare to Ample because their businesses were most similar to Ample’s.

Testifying further, Langum stated that he relied on McCauley’s testimony in the first trial as to the 1969 market value of Ample’s machinery and equipment, but that he adjusted this figure by making a deduction for the sale of certain machinery and equipment and by adding the amount of machinery and equipment purchases. Depreciation was also deducted, which yielded a net book value for these items.

Under cross-examination, Langum testified that 23 of the 32 companies he had selected to compare to Ample were not strongly financed, based on their earnings and dividends; that he compared the number of employees of these companies with Ample but that that comparison was not a criteria as to whether to include or exclude the company and that although he did not compare the number of plant facilities that each company had with Ample, he did compare the earnings history of these companies to determine whether the general business of Ample and the 32 were similar. Langum did not compare the companies’ dividend history, debt structure or management performance but relied on information provided by the American Institute of Management. He stated that the basis of his comparison of the companies with Ample was principal business undertaking and product line. None of the 32 companies showed a negative net worth on their balance sheets.

Testifying further under cross-examination, Langum said that he had not studied the ability of the 32 companies to service their debt although he was aware that in certain years they experienced net losses which limited their ability to do so. He also did not compare the nature of Ample’s debt to its net worth with the nature of the debt of the companies to their net worth. Langum had never made a valuation of a company based on a 10-month earning record and did not know whether any of the selected companies needed an infusion of capital to continue its operation. He further acknowledged that he “perhaps” should have studied whether any of the 32 companies were financially weaker than Ample but explained that he used the price earnings ratio of seven because it was the lowest ratio for any of the companies.

Under redirect examination Langum said that Ample experienced a “very strong and impressive increase in dollar volume” starting in 1962, followed by a loss in profits in 1967 from $24,751 to a deficit of $10,306 in 1968. He also said that he studied the comparative companies’ investments, earnings and the progress of their sales and profits and that these factors formed “a very adequate basis” to determine which companies would be selected. Langum further stated that he made a substantial discount in the multiplier to account for differences in size and other factors. This analysis resulted in Langum’s final decision to apply a price-earnings ratio of seven.

Next to testify was Joseph McCauley, president of Marathon Corporation, which manufactures components for metal die sets and springs.

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Bluebook (online)
463 N.E.2d 943, 123 Ill. App. 3d 921, 79 Ill. Dec. 389, 1984 Ill. App. LEXIS 1779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zokoych-v-spalding-illappct-1984.