Ramco Operating Co. v. Gassett

Ramco Operating Co. v. Gassett
1995 OK 8
890 P.2d 941
66 OBJ 574
Case Number: 84543
Decided: 02/14/1995
Modified: 03/13/1995
Supreme Court of Oklahoma

RAMCO OPERATING COMPANY F/K/A RAMCO HOLDING CORP., PETITIONER,
v.
THE
HONORABLE J. MICHAEL GASSETT, RESPONDENT.

Application for Extraordinary Relief.

¶0 The petitioner/corporation appeared as a witness in a proceeding to discover assets of a judgment debtor. The Honorable J. Michael Gassett, Judge, ordered the petitioner to provide corporate documents to the judgment creditor for the purpose of the creditor's determination of the value of stock in the corporation. Corporation sought prohibition to restrain enforcement of the trial court's order.

ORIGINAL JURISDICTION ASSUMED AND WRIT OF PROHIBITION ISSUED.

John N. Hermes, Drew D. Webb, McAfee & Taft, Oklahoma City, for petitioner.

R. Tom Hillis, Shane M. Egan, Boone, Smith, Davis, Hurst & Dickman, Tulsa, for respondent.

SUMMERS, Justice.

¶1 The RAMCO companies ask us to prohibit enforcement of a District Court order requiring RAMCO to open up its corporate books [890 P.2d 942] and records. We assume original jurisdiction and grant the writ of prohibition as sought. Okla. Const. Art. VII

¶2 A New York court rendered a judgment in excess of three million dollars in favor of U.S. Trust and against Robert E. Yaw. Yaw is one of four shareholders of RAMCO. Pursuant to Yaw's pledge of RAMCO stock to U.S. Trust the latter has possession of Yaw's certificates of RAMCO stock.

¶3 U.S. Trust brought its judgment to the District Court of Tulsa County. See 12 O.S. 1991

¶4 RAMCO claims that Dynamic is a competitor, and that release of its corporate books and records, particularly the reserve reports, will damage RAMCO. Dynamic claims it is not a competitor, and has agreed not to release the RAMCO information to others. RAMCO provided audited financial statements on the companies, but declined to provide other records, particularly the copies of reserve studies.

¶5 The New York judgment is not in the record before us. The parties state that it is for money in the amount of $3,203,400.67. None of the parties have claimed that the judgment ordered the sale of the stock, and no special execution or attachment on the stock has issued from the Tulsa County proceeding. See 12 O.S. 1991

¶6 U.S. Trust does not cite or rely upon any provision of the Uniform Commercial Code for its discovery of the records. It relies, basically, upon its status as a pledgee of the stock, and asserts that it should have the same inspection rights as a stockholder.

¶7 Our statutes clearly recognize that a "shareholder of record" may seek certain corporate records. 18 O.S. 1991

¶8 Does U.S. Trust, as a pledgee, have a common law right to inspect the corporate records? We conclude it does not. At common law a stockholder was entitled to inspect the books of a corporation.

¶9 U.S. Trust cites to an encyclopedia for the proposition that a pledgee has a common law inspection right to the corporate records. That encyclopedia, in addition to noting the authority to the contrary, relies upon two opinions. In re Citizens' Savings & Trust Co., 156 Wis. 277, 145 N.W. 646 (1914); Newcomer v. Miller, 166 Md. 675, 172 A. 242 (1934). Neither of these opinions supports a rule as urged by U.S. Trust.

¶10 The authority to the contrary, In re Brooklyn First Nat. Bank, 28 Misc. 662, 59 N.Y.S. 1042, affirmed, 44 A.D. 635, 60 N.Y.S. 1138 (1899), declined to recognize an inspection right in a pledgee. Brooklyn First Nat. Bank is a case where a bank, as pledgee, applied to a corporation to be allowed to [890 P.2d 944] examine its books to ascertain the value of the pledged stock. When the corporation refused the bank sought mandamus to compel the production. In denying the writ the court explained that the pledgee/bank was not a stockholder, and not subject to the benefits or responsibilities of a stockholder. Id. 59 N.Y.S. at 1043, the court then said: "It is true that the pledging of the stock conferred upon the bank, as pledgee, certain legal and equitable rights, but the one invoked is not among them." Id. U.S. Trust has no common law right, as pledgee, to inspect and audit RAMCO's books and records for the purpose of an independent valuation of the stock.

¶11 U.S. Trust also relies upon 12 O.S. 1991

¶12 The ultimate purpose of these procedures is to effect the application of a judgment debtor's property to a judgment. 12 O.S. 1991

¶13 In a

¶14 The trial court, by its order of November 15, 1994, required of RAMCO the production of: 1. any and all shareholder or board resolutions of the companies; 2. any and all board or shareholder consent actions for the companies; 3. any and all minutes of board or shareholder meetings of the companies; 4. copies of any reserve studies relating to the property owned or leased by the companies; and 5. information regarding accounts payable and accounts receivable for the companies. The order included all subsidiaries and affiliates. It exceeds the relevant inquiry a creditor may make of a non-party's records in a

¶15 On the eve of this opinion's adoption the parties advise that the stock has now been sold by U.S. Trust, and they jointly move that the action be dismissed as moot. We note that the joint motion to dismiss asks for remand with directions that the trial court vacate its order, which would be consistent with the result reached by us. We decline to dismiss, believing our opinion may provide guidance should the problem arise in the future. Let the writ issue prohibiting the respondent, or any other assigned judge in the cause, from enforcement of the order of November 15, 1994.

¶16 WILSON, C.J., and HODGES, LAVENDER, HARGRAVE, SUMMERS and WATT, JJ., concur.

¶17 KAUGER, V.C.J., and SIMMS and OPALA, JJ., dissent.

Footnotes:

1 12 O.S. 1991 ' 848 :

Witnesses may be required, upon the order of the judge, to appear and testify upon any proceedings herein provided in the same manner as upon the trial of an issue.

2 The record indicates that a corporate document, or a portion thereof, has been, or will be, made available to U.S. Trust which reflects the value of the stock as determined by RAMCO.

3 See 12 O.S. 1991 ' 732 , (defining three types of executions); 12 O.S. 1991 ' 841 , (any non-exempt interest of judgment debtor is subject to payment of judgment); 12 O.S. 1991 ' 902 , (when judgment is not for the recovery of money or real property it may be enforced by attachment).

4 Judicial application of a debtor's goods, chattels, and real property to a judgment is effectuated by a public sale. See 12 O.S. 1991 ' 757 , (sale of goods and chattels by public sale); 12 O.S. 1991 ' 764 (public notice of sale of reality); Okmulgee Motor Sales Co. v. Prentice, 371 P.2d 723, 726 (Okla. 1962), (debtors have a right to have a judicial sale made as advertised). Cf. Goldsby v. Juricek, 403 P.2d 454 (Okla. 1965), (constructive trust created when unlawful transaction requiring withdrawal of bid depressed the amount received in judicial sale). Private sales are authorized in several contexts. See e.g., Cate v. Archon Oil Co., Inc., 695 P.2d 1352, 1355 (Okla. 1985), (comparing private sales pursuant to Uniform Commercial Code and public sales pursuant to 12 O.S. 1981 ' ' 757 , 764); 58 O.S. 1991 ' 388 , (private sale of personalty by executor or administrator); 30 O.S. 1991 ' ' 4-762 , 4-764 (private sale of property of ward).

5 Lewis v. Brainerd, 53 Vt. 519, 521-522 (1881); Stone v. Kellogg, 165 Ill. 192, 46 N.E. 222 (1896); Otis-Hidden Co. v. Scheirich, 187 Ky. 423, 219 S.W. 191, 194 (1920); Bank of Heflin v. Miles, 294 Ala. 462, 318 So. 2d 697, 700 (1975).

6 Rex v. Tailors' Company, [1831] 2 Barn. & Adol. 115, 109 E.R. 1086; Rex v. Babb, [1790] 3 T.R. 579, 100 E.R. 743; Mutter v. Eastern and Midlands Railway, [1888] 38 Ch.D. 92, 106; In re Steinway, 159 N.Y. 250, 53 N.E. 1103, 1106 (1899).

7 Doggett v. North American Life Ins. Co., 396 Ill. 354, 71 N.E.2d 686, 688 (1947); (explained common law limitations of time, place, and purpose of inspection); State ex rel. McClure v. Malleable Iron Range Co., 177 Wis. 582, 187 N.W. 646, 647 (1922), (statutes allowing inspection of corporate records enlarged the common law right and stockholder inspections are statutorily authorized in more circumstances); Foster v. White, 86 Ala. 467, 6 So. 88 (1889), (same); Pfirman v. Success Mining Company, 30 Idaho 468, 166 P. 216, 218 (1917), (statutes were designed to adopt and extend the common law rule); In re Steinway, 159 N.Y. 250, 53 N.E. 1103, 1106-1107 (1899), (same).

8 At the beginning of this century one author explained the stockholder's inspection rights of corporate books under the common law and the then recently enacted statutes. William Clark, Handbook on the Law of Private Corporations, 325-328 (F. Tiffany 2d ed. 1907). The author explained that the person demanding access to the records must be the stockholder, or an agent acting for the stockholder, at 325, 327-328, citing, State ex rel. Bulkey v. Whited & Wheless, 104 La. 125, 28 So. 922 (1900), (non-stockholder could not claim right to inspect books); Foster v. White, 86 Ala. 467, 6 So. 88 (1889), (right of inspection is personal in the sense that only stockholder may exercise the right); Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 56 N.E. 1033 (the right is personal to the stockholder and stockholder's agent may inspect books); State ex rel. Burke v. Citizens Bank, 51 La. Ann. 426, 25 So. 318 (1899), (executrix protecting interests of deceased stockholder may inspect books). See also State ex rel. O'Hara v. National Biscuit Co., 69 N.J.Law 198, 54 A. 241, 242 (1903), (right given to stockholders); In re Steinway, 159 N.Y. 250, 53 N.E. 1103 (1899), (same).

9 State ex rel. Brumley v. Jessup & Moore Paper Co., 1 Boyce (Del.) 379, 77 A. 16 (1910).

10 The Wisconsin one-paragraph opinion, In re Citizens' Savings & Trust Co., 156 Wis. 277, 145 N.W. 646 (1914), states that a bank holding shares endorsed to the bank could inspect the corporate books in the custody of the banking commissioner liquidating the corporation. The Wisconsin court later explained its holding in Citizens' by stating it held therein that a stockholder is entitled to examine the books of a corporation. State ex rel. McClure v. Malleable Iron Range Co., 177 Wis. 582, 187 N.W. 646, 647 (1922). In Newcomer v. Miller, 166 Md. 675, 172 A. 242 (1934) the pledgee bought all of the stock at a sale upon foreclosure and then sought to inspect the corporate books in the custody of the court and held by a receiver. The court explained that the pledgees became owners of all of the stock and could inspect the books. Id. 172 A. at 243. The Maryland court did not recognize an inspection right based upon pledgee status.

OPALA, Justice, dissenting.

¶1 The court assumes today its original jurisdiction to prohibit the respondent-judge from [890 P.2d 945] enforcing his November 15, 1993 order, entered in Cause No. CJ-93-4842, District Court, Tulsa County, State of Oklahoma.

I

THE ANATOMY OF LITIGATION

¶2 On August 10, 1989 Yaw executed a pledge agreement giving Trust a security interest in his Ramco stock and placed his shares in Trust's possession. After Yaw's default Trust secured a money judgment against him in a New York Supreme Court and then domesticated it in Tulsa County on October 29, 1993 under the provisions of 12 O.S. 1991 ' 721 .6 On October 3, 1994 Trust agreed to sell Yaw's Ramco stock to Dynamic. Both a judgment creditor of Yaw and the holder of a security interest in his Ramco stock, Trust is in the process of selling the Yaw shares without the aid of the court's execution process.7 It is authorized so to do by the pledge agreement with Yaw.

¶3 To facilitate this transaction Trust undertook to acquire data from Ramco to aid itself and Dynamic [the prospective purchaser] in assessing the value of Yaw's Ramco stock. Trust secured a subpoena duces tecum (from the Tulsa County District Court) calling upon Ramco to produce thirteen categories of data. Ramco initially produced all but six of the items sought.

¶4 In conjunction with the subpoena for the production of Ramco's audited financial statements, a "protective order" was entered [890 P.2d 946] on October 25, 1994.8 On October 31, 1994 Dynamic gave Ramco a requested confidentiality agreement. Ramco then produced the requested financial statements that Trust sought.

¶5 On November 15, 1994 the court ordered Ramco to produce five more items of data.9 It was in response to the latter order that Ramco invoked this court's original cognizance to prohibit the order's enforcement.

II

TRUST, QUA JUDGMENT CREDITOR OF YAW, IS ENTITLED TO THE COURT'S
AID IN ITS EFFORTS TO PROTECT THE RAMCO STOCK SALE AGAINST
COMPLAINTS THAT IT WAS NOT AT A FAIR PRICE

¶6 Since Trust's New York money judgment10 has been domesticated11 in Tulsa County, it is enforceable12 in Oklahoma. It confers on Trust the status, rights and remedies afforded by our law to any judgment creditor. Trust may avail itself not only of the court's legal execution process but also of its equitable powers to aid in collecting its judgment.13

¶7 To assist the judgment creditor in discovering and identifying the judgment debtor's assets, the legal system has long provided certain equitable redress.

[890 P.2d 947]

III

OUR LAW WILL NOT EXTEND TO TRUST A RIGHT TO SELL YAW'S RAMCO
STOCK AND ALSO DENY IT A LEGALLY SAFE WAY TO VALUE THE SHARES
OFFERED FOR SALE

¶8 Trust's actions, questioned in today's proceedings, essentially consist of efforts to satisfy its judgment by securing appraisement of stock antecedent to a sale of the judgment debtor's assets in its possession. By a subpoena duces tecum Trust is not seeking to secure a shareholder's broad right to inspect

IV

TRUST IS ALSO ENTITLED TO THE DATA IN RAMCO'S POSSESSION BECAUSE

THEY ARE NECESSARY TO VALUE ITS RAMCO STOCK BY GENERALLY
ACCEPTED ACCOUNTING PROCEDURES

¶9 Qua judgment creditor, Trust also is entitled to secure the data items essential for pre-sale appraisement of Yaw's Ramco shares. Trust seeks no more information than the very minimum it must have under generally accepted accounting standards. Its efforts bear no analogy to a shareholder's statutory or common-law quest for inspection, i.e., assertion of a right to know the full sweep of corporate activity. Trust's quest for disclosure is appropriately most narrowly focused.19

V

TRUST'S QUEST IS LIMITED TO DISCLOSURE OF DATA NECESSARY TO
EFFECTUATE A LEGALLY SAFE SALE OF YAW'S RAMCO STOCK AND DOES
NOT AMOUNT TO GENERAL DISCOVERY OF RAMCO'S BUSINESS RECORDS

¶10 The supplementary remedy that is available to a judgment creditor is ancillary to the original action in which the judgment was rendered.20 This principle accords with our extent jurisprudence21 and with its consistent teaching that ' 848 is a trial procedure and does not amount to an impermissible general discovery by the judgment creditor. The respondent judge's November 15 order does not give Trust a license to engage in a hunting expedition. It stands limited to specific items of information which, as the court has determined [after taking evidence22], are [890 P.2d 948] relevant to the valuation process of a debtor's asset sought to be offered at a private sale, with the proceeds to be applied toward the judgment's satisfaction.

VI

TODAY'S OPINION RESOLVES MOOTED ISSUES UNDER THE
EXCEPTION TO THE MOOTNESS DOCTRINE

¶11 By their February 6, 1995 joint motion before this court Ramco and Trust seek this cause's dismissal because the proceeding has been mooted by Trust's completed sale of Yaw's Ramco stock. Inasmuch as the important legal issue in dispute here is likely to recur, the court nonetheless proceeds to decide this no longer lively contest under an exception to the mootness doctrine.23 I concur in today's effort to expand the body of extant jurisprudence.

VII

SUMMARY

¶12 Today's writ denies a judgment creditor the opportunity to conduct a legally safe sale of a debtor's stock in a privately held corporation. The court's pronouncement is made sans opportunity to examine all of the comprehensive record of evidence presented to the respondent judge.

¶13 The respondent judge's November 15 order, entered in a ' 848 supplementary proceeding, should be left undisturbed. It compels disclosure of data absolutely necessary to appraise - in a legally safe manner - Ramco's stock by application of generally accepted accounting principles.24

¶14 I would subject Trust neither to the hazard of a debtor's tort claim nor to a post-judgment dispute over the amount of credit rightly due the debtor as the sale's proceeds. Because Trust is deprived today of a valuable protection against possible complaints that its sale was not at a fair price,

Footnotes:

1 The November 15 order requires Ramco to produce: (1) all shareholder or board resolutions of Ramco and its subsidiaries [Companies]; (2) all board or shareholder consent actions for the Companies; (3) all minutes of board or shareholder meetings of the Companies; (4) copies of any reserve studies relating to the property owned or leased by the Companies; and (5) information regarding the accounts payable and accounts receivable of the Companies. For a general discussion of how the respondent judge formulated the categories of data ordered produced, see infra note 22.

2 On October 15, 1993 Trust secured judgment against Yaw in the amount of $3,203,400.67 in United States Trust Company of New York v. Robert E. Yaw, Index No. 6462/92, Supreme Court of New York. This judgment was domesticated in Tulsa County on October 29, 1993 by compliance with the provisions of 12 O.S. 1991 ' 721 [see infra note 6].

3 Yaw executed a pledge agreement dated August 10, 1989 by which he granted Trust a security interest in his Ramco stock. It is undisputed that Trust has possession of Yaw's Ramco stock certificates. Yaw's pledge provides that if his Ramco shares are sold, the sale proceeds should be applied toward satisfying his obligation. In selling Yaw's stock Trust is neither an interloper nor an officious volunteer. See N.Y. [U.C.C.] ' ' 9-203, 9-304, 9-305 (1994).

4 Our jurisprudence recognizes a pledgee's right to sell pledged property at a private sale. Ardmore State Bank v. Mason, 30 Okl. 568, 120 P. 1080, 1084 (1911); Dunbar v. Commercial Electrical Supply Co., 32 Okl. 634, 123 P. 417, 418 (1912).

5 See my analysis, infra note 18.

6 The pertinent terms of 12 O.S. 1991 ' 721 are:

"A copy of any foreign judgment authenticated in accordance with the applicable Act of Congress or of the statutes of this state may be filed in the office of the court clerk of any county of this state. . . . A judgment so filed has the same effect . . . as a judgment of a district court of this state and may be enforced or satisfied in like manner. . . ." [Emphasis added.]

7 The pertinent provisions of 12 O.S. 1991 ' 731 provide:

"Executions shall be deemed process of the court, and shall be issued by the clerk, and directed to the sheriff of the county. . . ."

8 The court's order requires that Ramco's audited financial statements, furnished to Trust and Dynamic, be kept confidential. [Ramco claims that Dynamic was one of its competitors.]

9 See supra note 1 for the November 15, 1993 nisi prius order's terms.

10 See supra note 2 for the money judgment's terms.

11 By the terms of the Uniform Foreign Money-Judgment Recognition Act, 12 O.S. 1991 ' ' 710 et seq., Trust's money judgment against Yaw acquired domestic recognition and became entitled to local execution relief.

12 Trust's judgment is enforceable under the Uniform Enforcement of Foreign Judgments Acts, 12 O.S. 1991 ' ' 719 et seq.

13 In 1988 the legislature effectively abolished the common-law requirement - that one must exhaust legal remedies before resorting to equity - when it amended 12 O.S. 1991 ' 735 [effective November 1, 1988]. The amendment provides that, in addition to execution, issuance of a garnishment summons - an equitable remedy - will extend the period during which a judgment remains enforceable (and is kept from falling into dormancy).

14 The law has long recognized "supplementary proceedings" - i.e., proceedings subsequent to judgment or execution - to aid judgment creditors in identifying and applying debtors' assets to the judgments' satisfaction. See H. OLECK, DEBTOR CREDITOR LAW ' 17 at 66 (1962); J.W. SMITH, THE EQUITABLE REMEDIES OF CREDITORS ' ' 200 et seq. (1899); A.C. FREEMAN, A TREATISE ON THE LAW OF JUDGMENTS ' 848 at 1795-98 (1925); see also Honce v. Schram, 73 Kan. 868, 85 P. 535, 537 (1906); Herrlich v. Kaufmann, 99 Cal. 271, 33 P. 857, 858 (Cal. 1893). Proceedings of this nature are characterized as supplemental to the action in which the judgment was rendered. See J.W. SMITH, supra ' 4 at 11.

15 Supplementary proceedings - while in the nature of a creditor's bill - are in lieu of them and are matters of equitable cognizance. Historically they were used in aid of execution to reach beyond the limits of common-law process and compel that "which ought to have been done." J.W. SMITH, THE EQUITABLE REMEDIES OF CREDITORS, supra note 14, ' 4 at 11. The propriety of affording equitable relief lies within the discretion of the nisi prius court. Mid-America Corporation v. Geismar, Okl., 380 P.2d 85, 88 (1963). For a general discussion of creditors' bills and their use in discovering and identifying assets of the judgment debtor, see G. BISPHAM, THE PRINCIPLES OF EQUITY: A TREATISE ON THE SYSTEM OF JUSTICE ADMINISTERED IN COURTS OF CHANCERY ' 525 at 805 (J. McCoy, 10th ed. 1922).

16 The pertinent terms of 12 O.S. 1991 ' 848 are:

"Witnesses may be required, upon the order of the judge, to appear and testify upon any proceedings herein provided in the same manner as upon the trial of an issue."

17 With the enactment of Business Incorporation Act in 1947, a shareholder became entitled to inspect corporate records "for any proper purpose." Wolozyn v. Begarek, Okl., 378 P.2d 1007, 1010 (1963). Before the Act's passage shareholders had an unfettered statutory right to inspect corporate books and records irrespective of their motivation. Hoover v. Fox Rig & Lumber Co., Okl., 189 P.2d 929, 932-33 (1948).

18 Equity imposes upon one selling pledged collateral the affirmative duty to obtain a fair and reasonable price. See Whitman v. Boston Terminal Refrigerating Co., 233 Mass. 386, 124 N.E. 43, 44 (1919); Dibert v. D'Arcy, 248 Mo. 617, 154 S.W. 1116, 1124 (1913); German-American State Bank v. Spokane C.R.R. & Nav. Co., 49 Wash. 359, 95 P. 261, 262 (1908). The sale of collateral in which one possesses a perfected security interest in the Article 9 sense of the Commercial Code must be "commercially reasonable." 12A O.S. 1991 ' 9-504 (3). For a description of disputes that may arise upon a complaint that the sale was not commercially reasonable, see the exhaustive opinion in Ruden v. Citizens Bank & Trust, 638 A.2d 1225 (Md. Ct. Spec. App. 1994).

19 See supra note 17 for the history of a shareholder's right to inspect.

20 See supra note 14, J.W. SMITH, THE EQUITABLE REMEDIES OF CREDITORS ' 4 at 10.

21 Stone v. Coleman, Okl., 557 P.2d 904, 905 (1976).

22 Our paperwork reveals that the respondent judge heard testimony of what was required, under generally accepted accounting principles, to value the stock of a privately held corporation. See Exhibit "B" to Ramco's abstract of record in support of its application. It is obvious that merely a trickle of the entire testimony was incorporated into the materials tendered for our review in this original action.

23 Our jurisprudence recognizes two "escape hatches" from the strictures of the mootness doctrine. These are (1) the public-interest and (2) the likelihood-of-recurrence exceptions. City of Oklahoma City v. Oklahoma Tax Com'n, Okl., 789 P.2d 1287, 1297 (1990) (Opala, J., dissenting); Westinghouse Elec. v. Grand River Dam Auth., Okl., 720 P.2d 713, 720 (1986); Peppers Refining Co. v. Corporation Commission, 198 Okl. 451, 179 P.2d 899, 901 (1947).

24 The law's general principles of fairness are applicable to all post-judgment judicial sales. The safeguards that govern judicial sales can be no less protective of the debtor than those imposed on contractually authorized private sales. Cate v. Archon Oil Co., Inc., Okl., 695 P.2d 1352, 1355 (1985). See also 12A O.S. 1991 ' 9-504 (3).

25 See Ruden, supra note 18 at 1225.