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Carleton, LLC v. Richard Balagur

December 21, 2012

CARLETON, LLC
v.
RICHARD BALAGUR &
A. CARLETON, LLC
v.
RICHARD BALAGUR RICHARD BALAGUR
v.
BUKK CARLETON



The opinion of the court was delivered by: Bassett, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: September 20, 2012

Carleton, LLC appeals from an order of the Superior Court (Vaughan, J.) denying its motion to vacate and set aside articles of dissolution filed by MTS Development Corporation (MTS) and denying its renewed motion to enforce creditor status. We affirm.

This is the fourth time this case has come before us. A detailed account of the underlying facts and procedural history can be found in our previous decisions, see Carleton, LLC v. Balagur, 162 N.H. 501, 503-04 (2011) (citing previous cases). We recite only those facts pertinent to this appeal.

In 1995, Bukk Carleton and Richard Balagur formed MTS for the purpose of purchasing land in Lebanon and operating as a real estate holding company. Originally, of the 1,000 total MTS shares, Richard Balagur owned 400, his mother, Adrienne Balagur, owned 100, and the trustee of a trust for Bukk Carleton's daughters owned 500. Carleton, LLC eventually purchased the trust's shares and, thus, became the owner of fifty percent of MTS's stock. Bukk Carleton owns all of the shares of Carleton, LLC. In May 2004, Carleton, LLC brought an action against MTS and Richard Balagur to, among other things, dissolve MTS, see RSA 293-A:14.30(b) (2010). In January 2005, Adrienne Balagur successfully moved for leave to file an election to purchase shares in lieu of dissolution, pursuant to RSA 293-A:14.34 (2010). The case was consolidated with other related actions and tried to the court.

The central issue at trial was how to value Carleton, LLC's fifty percent ownership of MTS, which Adrienne Balagur sought to acquire. Following the trial court's ruling on the value of Carleton, LLC's ownership interest, see RSA 293-A:14.34(d), the Balagurs moved to terminate Carleton, LLC's rights and status as a shareholder of MTS. The court granted the motion, ruling that "RSA 293-A:14.34(f) requires removal of a shareholder whose shares have been valued for an elective purchase" and that, thereafter, Carleton, LLC would be considered "a creditor of MTS until [it] receives payment for the shares purchased." Shortly thereafter, the court granted Carleton, LLC's request for a security interest in order "[t]o protect and preserve the value of the award provided to [Carleton, LLC] by the [c]court in granting" Adrienne Balagur's election remedy. On July 26, 2009, the trial court ordered "that the election to purchase [Carleton, LLC's] shares be accomplished within ninety (90) days from the date of the Clerk's notice of this order . . . in one lump sum." We affirmed this ruling on May 13, 2010. See Carleton, LLC v. Richard Balagur & a.; Carleton, LLC v. Richard Balagur; Richard Balagur v. Bukk Carleton, No. 2009-0708 (N.H. May 13, 2010).

On June 7, 2010, MTS filed a notice of intention to adopt articles of dissolution. See RSA 293-A:14.34(g). Carleton, LLC objected, asserting that the notice was not timely filed under RSA 293-A:14.34(g). See Carleton, LLC, 162 N.H. at 504. In September 2011, we affirmed the trial court's finding that the notice of intention to adopt articles of dissolution was timely filed. See id. at 502.

Subsequently, Carleton, LLC moved to vacate and set aside the articles of dissolution filed by MTS, arguing that Adrienne Balagur's election to purchase Carleton, LLC's shares was irrevocable and that the shareholders could not validly authorize the later filed articles of dissolution. Carleton, LLC also filed a motion for an accounting of all income and expenses of MTS. It further filed a renewed motion to enforce its creditor status, arguing that "[w]hile RSA 293- A:14.34(g) addresses the terms of purchase, nowhere does the statute abandon the court's fair value determination." It maintained that the trial court's order on "fair value" and on creditor status are now the law of the case and "remain unaffected by [MTS and the Balagurs'] attempt to dissolve MTS."

The trial court denied the motion; however, it agreed that an accounting should occur and ordered "a full accounting of the books and records of MTS." The court further denied Carleton, LLC's renewed motion to enforce creditor status, finding "that the provisions of RSA 293-A:14.34(g) void the provisions of RSA 293-A:14.34(e)," and that it was "constrained by the application of RSA 293-A:14.34(g)." Carleton, LLC's motion to reconsider was denied, and this appeal followed.

On appeal, Carleton, LLC contends that the trial court erred in its application of RSA 293-A:14.34 and in failing to enforce its order making Carleton, LLC a secured creditor. It also contends that corporate dissolution is an equitable proceeding and, as such, the trial court erred in failing "to enforce the 'principles of fair play' embodied in RSA 293-A:14.34" and in failing to balance the competing interests of the parties. It further asserts that Adrienne Balagur is estopped from avoiding her election to purchase Carleton, LLC's shares of MTS. We address each argument in turn.

Carleton, LLC first argues that the trial court erred in utilizing RSA 293- A:14.34(g) as a basis for denying its renewed motion to enforce creditor status. It maintains that the court's order making Carleton, LLC a secured creditor was not issued pursuant to RSA 293-A:14.34(e) and, thus, RSA 293-A:14.34(g) could not have voided the order. It further contends that the court's order establishing Carleton, LLC as a secured creditor is a final order that could not be altered or vacated.

Resolving this issue requires us to interpret RSA 293-A:14.34. We are the final arbiter of the legislature's intent regarding the meaning of a statute considered as a whole, and our review of the trial court's statutory interpretation is de novo. Bendetson v. Killarney, Inc., 154 N.H. 637, 641 (2006). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id. Finally, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

RSA 293-A:14.34 governs the procedure to be followed when a corporation or other shareholders elect to purchase all of the shares of a shareholder who has petitioned for dissolution. Once an election to purchase is filed, the parties have sixty days to "reach [an] agreement as to the fair value and terms of purchase of the petitioner's shares," and "the court shall enter an order directing the purchase of petitioner's shares upon the terms and conditions agreed to by the parties." RSA 293-A:14.34(c). If, however, the parties fail to reach an agreement, either party may petition the court to stay the dissolution proceedings and "determine the fair value of the petitioner's shares." RSA 293-A:14.34(d).

"Upon determining the fair value of the shares, the court shall enter an order directing the purchase upon such terms and conditions as the court deems appropriate . . . ." RSA 293-A:14.34(e). Once the court enters an order under RSA 293-A:14.34(e), the court shall dismiss the petition to dissolve the corporation under RSA 293-A:14.30, and the petitioning shareholder shall no longer have any rights or status as a shareholder of the corporation, except the right to receive ...


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