2005-251, RICHARD BENDETSON & a. v. KILLARNEY, INC. & a.

This case involves the breakdown of a business

A. Kosow on the brief, and Mr. DiMento orally), for the respondents. DiMento & Sullivan, of Boston, Massachusetts (Francis J. DiMento and Jason Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief) and

petitioners. (Jeffrey P. Allen and Eric B. Goldberg on the brief, and Mr. Allen orally), for the brief) and Seegel Lipshutz & Wilchins, P.C., of Wellesley, Massachusetts to press. Errors may be reported by E-mail at the following address: Devine, Millimet & Branch, P.A., of Manchester (Daniel E. Will on the

editorial errors in order that corrections may be made before the opinion goes No. 2005-251 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the board of directors. Indeed, at that special shareholders’ meeting,

p. 2 Killarney shareholders on July 30, 2001, but were unable to elect successors to

the relationship between Buonato and Bendetson soured. They last met as own management company, to manage the apartment complex. At some point, apartment complex in Northfield. By agreement, Buonato used Wellesley, his Killarney. See RSA 304-B:45 (2005). In January 2002, Buonato filed an director and shareholder deadlock at Killarney, the sole general partner of New business in conformity with the limited partnership agreement given the petitioners alleged that it was not reasonably practicable to carry on its as the general partner of New Killarney. See id. Regarding New Killarney, the advantage of the shareholders generally or in furtherance of Killarney’s purpose business affairs of the corporation no longer could be conducted to the claimed that irreparable injury was threatened or being suffered, and that the were unable to break the deadlock. See RSA 293-A:14.30(b). They also deadlocked in the management of corporate affairs and that the shareholders Killarney. Concerning Killarney, they alleged that the directors were 49.5 percent of the partnership. New Killarney purchased a residential seeking, among other relief, the judicial dissolution of Killarney and New with a one percent interest. Buonato and Bendetson each effectively controlled In November 2001, the petitioners filed a petition in the superior court partnership, and designated Killarney as its sole, controlling general partner to schedule or hold another shareholders’ meeting. Contemporaneously, they formed New Killarney, a New Hampshire limited shareholder, would not second the motion. Since then, they have been unable Bendetson moved for a vote to elect directors, and Buonato, the only other

directors. Buonato was president and secretary, and Bendetson was treasurer. Killarney as equal shareholders and served as the company’s sole officers and Bendetson dealt in real estate ventures together. In 1994, they formed Court (twenty-five years old, he went to work for Bendetson. Later, Buonato and Companies, Inc. (Wellesley). The respondents appeal a decision of the Superior developed a personal friendship. In the late 1980s, when Buonato was about Killarney; New Killarney Limited Partnership (New Killarney); and Wellesley father and Bendetson began engaging in business dealings together and the mid-1970s when Buonato was about eleven years old. In 1974, Buonato’s evident in the record. Bendetson and Buonato have known each other since The essential facts are drawn from various court orders or are otherwise

dissolving Killarney, see RSA 293-A:14.30 (1999). We affirm. shares of Killarney, see RSA 293-A:14.34 (1999), and its subsequent order Morrill, J.) setting aside Buonato’s election to purchase Bendetson’s

respondents include Killarney; Buonato, individually and as president of of the Richard K. Bendetson Dynasty Trust; and Robert Curcio. The p. 3 Killarney. This appeal followed.

to elect to purchase a petitioning shareholder’s shares and thus avoid the Bendetson’s shares in Killarney. They contend that shareholders are entitled

New Killarney. The trial court subsequently ordered the dissolution of each argument in turn. established sufficient grounds for judicial dissolution of Killarney. We address they argue that the trial court erred when it concluded that the evidence

under RSA 293-A:14.34(a) to set aside Buonato’s election to purchase The respondents first argue that the trial court lacked the authority

conclusion of which the petitioners withdrew their request for the dissolution of February 2005, the trial court conducted an evidentiary hearing, at the scheduled a hearing on the dissolution of New Killarney and Killarney. In set aside Buonato’s election, it unsustainably exercised that discretion. Third, set aside Buonato’s election to purchase Bendetson’s shares in Killarney and right to elect. Second, they contend that even if the court had the discretion to Killarney when Buonato, the electing shareholder, did not seek to revoke his discretion to set aside Buonato’s election to purchase Bendetson’s shares in court erroneously interpreted RSA 293-A:14.34(a) as permitting it to exercise The respondents make three arguments. First, they argue that the trial

respondents are electing to buy.” The Superior Court (

control over New Killarney as well. Over the respondents’ objection, the court ownership of Killarney through election would effectively grant him complete limited partnership, New Killarney, was pending and that Buonato’s full history and status of the dispute. The court noted that dissolution of the hearing began with a colloquy between the court and counsel concerning the In February 2004, the parties attended the valuation proceeding, and the

scheduled a structuring conference and the valuation proceeding.

be made as to the fair value of Bendetson’s shares in Killarney which motion to stay the judicial dissolution proceeding “so that a determination may business and affairs of Killarney.” The trial court also granted the respondents’ [their] allegations, Buonato has properly and productively managed the Court (Hollman, J.) denied the petitioners’ motion, finding that “contrary to determine the fair value of Bendetson’s shares in Killarney. The Superior motion to stay the judicial dissolution proceeding so the trial court could remove Buonato as president of Killarney; for their part, the respondents filed a The petitioners subsequently filed a motion to appoint a custodian and

negotiate a price for the sale of Bendetson’s shares. See RSA 293-A:14.34(a). Thereafter, the parties attempted, without success, to election to purchase, at fair value, all shares in Killarney owned by Bendetson. modify the election. p. 4 unless the court determines that it is equitable to set aside or

solely by an electing party’s request to revoke an election.

by the petitioning shareholder at the fair value of the shares. timely filed election is subject only to the specific provision in dispute here: or more shareholders may elect to purchase all shares owned association, the corporation may elect or, if it fails to elect one do so, and that the trial court’s exercise of equitable authority is not triggered or more members of a national or affiliated securities exchange or regularly traded in a market maintained by one

discretion and determine whether to allow the delayed election. Otherwise, a election is filed beyond the ninety-day time period, the court may exercise the trial court to set aside a stock purchase election whenever it is equitable to court in its discretion may allow.” RSA 293-A:14.34(b) (1999). Therefore, if an aside. The petitioners contend, however, that the election statute empowers after the filing of the judicial dissolution petition “or at such later time as the corporation that has no shares listed on a national securities authority until the electing shareholder seeks permission to set the election RSA 293-A:14.34(a). An election may be filed at any time within ninety days

purchase all of the shares of the petitioning shareholder. Specifically:

not see fit to incorporate in the statute. what the legislature might have said or add language that the legislature did

In a proceeding under RSA 293-A:14.30(b) to dissolve a where possible, we ascribe the plain and ordinary meanings to the words used. authority under the statute for the trial court to exercise its discretionary

RSA 293-A:14.30(b), the corporation or other shareholders may elect to Once a shareholder seeks judicial dissolution of a corporation under

the Matter of Donovan & Donovan, 152 N.H. 55, 58 (2005). statute in the context of the overall statutory scheme and not in isolation. In

beyond it for further indication of legislative intent, and we refuse to consider Id. When a statute’s language is plain and unambiguous, we need not look

151 N.H. 775, 776 (2005). We first examine the language of the statute, and shareholder seeks to rescind the otherwise irrevocable election, and there is no aside a timely filed election to purchase is triggered only when the electing statutory interpretation is de novo. In the Matter of Giacomini & Giacomini, respondents, the trial court’s authority to exercise its equitable power to set meaning of a statute considered as a whole, and our review of the trial court’s This court is the final arbiter of the legislature’s intent regarding the

of the election by the elector without permission of the court. According to the dissolution of the corporation, and that the election statute forbids revocation trial court to exercise equitable power to set an election aside either

p. 5 They contend that the irrevocable nature of an election does not permit the it may the trial court exercise its equitable power to set aside the election. that it is equitable to set aside or modify the election.” remains irrevocable by the electing party, and only if that party seeks to recall the first such that election remains irrevocable “unless the court determines section shall be irrevocable.” RSA 293-A:14.34(a). The second clause qualifies 5

UNALTERABLE,”

recall, withdraw or reverse it. Thus, according to the respondents, an election

clause mandates that election is irrevocable: “An election pursuant to this discontinuance, settlement, sale, or other disposition.

(unabridged ed. 2002); and also “committed beyond recall,” Black’s Law

Webster’s Third New International Dictionary 1196

“Irrevocable” means “incapable of being recalled or revoked : past recall :

meaning of the term “irrevocable” guides the applicability of that exception. essentially creates an exception to an otherwise “irrevocable” election, and the

“revoke” connotes that the party asserting a particular action is attempting to which is not defined by the statute, and argue that the common meaning of The election irrevocability provision contains two clauses. The first election irrevocability provision, the respondents target the term “irrevocable,” and the shareholders other than the petitioner to permit such court determines that it would be equitable to the corporation agree with the respondents’ narrow reading of the statute. shareholder sell or otherwise dispose of his shares, unless the or at the request of the party who petitioned for judicial dissolution. We do not shall not be discontinued or settled, nor may the petitioning shares. RSA 293-A:14.34(d) (1999). sua sponte stay the dissolution proceedings and determine the fair value of the petitioner’s A:14.34(c) (1999). If they fail to do so, either party may petition the court to

within ninety days of the filing of the judicial dissolution petition. Within the The respondents contend that election is a matter of right when filed

more shareholders the proceeding under RSA 293-A:14.30(b)

dissolution proceeding. Rather, the fair value and terms of purchase of the petitioner’s shares.” RSA 293- RSA 293-A:14.34(b). The parties have sixty days to “reach [an] agreement as to

A:14.34(a) (election irrevocability provision).

[a]fter an election has been filed by the corporation or one or

An election, however, does not effect an automatic stay upon the judicial

determines that it is equitable to set aside or modify the election.” RSA 293- “An election pursuant to this section shall be irrevocable, unless the court p. 6 6

not discontinue the dissolution proceeding, or otherwise dispose of the shares, shares without court approval. shareholder “becomes irrevocably committed to sell his shares,” petitioning shareholder may not dispose of his id., and may dissolution] proceeding.” Id. Thus, once an election is filed, the petitioning effect, subject to a ‘call’ for 90 days after commencement of the [judicial as a “matter of right,” such that a petitioning shareholder’s “shares are, in buyout election will be used for strategic purposes.” so; and Id. Election is described designed “to reduce the risk that either the dissolution proceeding or the unless the court determines it is equitable to do process or an election to purchase, the dissolution and election provisions were explains that by restricting the parties’ ability to thwart either the dissolution Model Bus. Corp. Act Annotated § 14.34 cmt. 2, at 14-148. The comment of court is required. Once an election is filed: of the petition under section 14.30(2). After 90 days, leave

may not be discontinued or settled and the (ii) the dissolution proceeding under section 14.30(2)

aside or modified (as to one or more parties) (i) the election is irrevocable and may not be set

be made as a matter of right within 90 days after the filing policy underlying them. The election to purchase is wholly voluntary, but it can

pertinent part: to interpret analogous New Hampshire statute). One comment states, in 180, 183 (2003) (reviewing official comments of Model Penal Code for guidance on the intended meaning of the election statute, cf. State v. Donohue, 150 N.H. 2005), and thus, we look to the official comments of the model act for guidance Business Corporation Act, see Model Bus. Corp. Act Annotated § 14.34 (3d ed. Our election statute is nearly identical to the like provision in the Model

Dist. v. State, 140 N.H. 457, 458 (1995).

within the context of the dissolution and election provisions, as well as the definition provides us with guidance, we also consider the meaning of the term may not withdraw it, alter it, or otherwise call it back. While the dictionary generally speaking, if an action is irrevocable, the actor who initiated the action relationship between an actor and an action initiated by that actor. Thus, respondents to the extent that the term “irrevocable” commonly describes the means “to call back . . . or cause to return,” id. at 1893. We agree with the Webster’s Third New International Dictionary, supra at 1944, and “recall” Dictionary 848 (eighth ed. 2004). “Revoke” means “to bring or call back,” p. 7 7

disposing of his shares “unless the court determines that it would be equitable of the petitioning party. This provision bars the petitioning shareholder from judicial dissolution as a remedy. proceedings while protecting an electing party’s ability to purchase the shares interest in the continuation of the business,” election is often favored over A:14.34(b), which precludes an automatic stay of the underlying dissolution Our reading of the irrevocability provision comports with RSA 293-

constrain the trial court from addressing the equities in such a case. not likely to seek to withdraw the election, and the legislature did not intend to provide an unfair advantage to the electing party, however, the electing party is shareholders to continue the business.” Id. In the event that election would parties. and paying the fair value of his shares while permitting the remaining the petitioning shareholder are fully protected by liquidating only his interest 14-14 p. 7 7. This policy is supported in part by the presumption that “the rights of

“adverse effects on shareholders, employees, and others who may have an We acknowledge that generally speaking, because of dissolution’s

electing party would contravene this intended design of the provision. the equities of a particular case absent a request to revoke initiated by the provision in a manner that would effectively bar the trial court from addressing

See RSA 293-A:14.34(b). Interpreting the election irrevocability

language into the statute that it does not contain. dissolution and election provisions to reduce strategic maneuvers between the election upon one party’s request to revoke an election, and we will not read motion to revoke the election, it does underscore the intended design of the conditions the trial court’s exercise of its equitable power to set aside the court’s exercise of equitable authority is contingent upon the electing party’s though the comment does not speak explicitly to the question of whether a trial equitable.” Model Bus. Corp. Act Annotated § 14.34 cmt. 2, at 14-149. Even filed, it may be set aside or modified . . . for reasons that the court finds not unqualified, however. The comment also states that “[o]nce an election is of right” when filed within ninety days of the dissolution petition. This right is We acknowledge that the official comment refers to election as a “matter

p. 7 777.

of his election. No language within the election irrevocability provision them, and it does not refer exclusively to the electing party’s ability to opt out both the petitioning shareholder to sell his shares and the electing party to buy irrevocability provision, specifically the term “irrevocable,” was intended to bind § 14.34 cmt. 2, at 14-14 p. 8 8; RSA 293-A:14.34(b). Accordingly, the election absent court permission to revoke the election, Model Bus. Corp. Act Annotated electing party becomes irrevocably committed to buying the petitioner’s shares automatically stay the dissolution proceedings, RSA 293-A:14.34(b), the without the court’s permission, id. Conversely, while election does not 8

disagree. absent the electing party requesting the court to set aside the election. We shareholder’s stock and that such election when timely made is irrevocable

A:14.30 with RSA 293-A:14.34(a). Nothing in the notice provision, however, party to affirmatively prove in order to pursue an election. Compare RSA 293provision contains no specific substantive elements or factors for an electing entitlement because unlike a petition for judicial dissolution, the election In some sense, an election to purchase may be considered a right or an principles of fair play in a situation that is often rife with tension and ill-will.

demonstrates that electing parties have a right to purchase the petitioning (Emphasis added.) The respondents assert that the “entitled to avoid” phrase

by a copy of RSA 293-A:14.34. petitioner’s shares under RSA 293-A:14.34 and accompanied dissolution of the corporation by electing to purchase the notice stating that the shareholders are entitled to avoid the shall send to all shareholders, other than the petitioner, a indicates that the legislature intended to empower the court to enforce members of a national securities exchange, the corporation regularly traded in a market maintained by one or more no shares listed on a national securities exchange or under RSA 293-A:14.30(b), to dissolve a corporation that has Within 10 days of the commencement of a proceeding

Specifically, RSA 293-A:14.31(d) (1999) (notice provision), provides: to assert that shareholders are entitled to avoid dissolution by election. The respondents rely upon a provision in the judicial dissolution statute

shareholder, invoking the trial court’s discretion. a particular case without the contingency of one particular party, the electing reference to the court’s equitable powers in both RSA 293-A:14.34(a) and (b) consistent with the trial court’s authority to address the equities of election in authority to consider the equities at play in a particular case. Explicit petitioning shareholder’s stock. This comprehensive frame of reference is A:14.34(b). Again, the legislature expressly incorporated the trial court’s equities from all parties’ perspectives when a party elects to purchase the This suggests that the legislature intended for the trial court to review the similar restriction. Compare RSA 293-A:14.34(b) with RSA 293-A:14.34(a). petitioner,” while the election irrevocability provision does not contain a of certain parties, “the corporation and the shareholders other than the Further, subsection (b) directs the trial court to consider the perspectives

such discontinuance, settlement, sale, or other disposition.” RSA 293to the corporation and the shareholders other than the petitioner to permit sustain the trial court’s decision.

p. 9 The respondents also contend that no objective basis exists on the record to

that Respondents could exercise their irrevocable, matter-of-right election.” venture should not be dissolved before it would value the Petitioner’s shares so procedure on its head [by] forcing the Respondents to first prove that the

establishes an objective basis sufficient to sustain the court’s discretionary

another presiding judge, that the trial court failed to hold an evidentiary contend that one presiding judge should not have overruled the decision of aside Buonato’s election to purchase Bendetson’s shares in Killarney. They exercise of judicial discretion, we are really deciding whether the record When we determine whether a ruling made by the trial court is a proper

unsustainably exercised its discretion under RSA 293-A:14.34(a) when it set The respondents argue, in the alternative, that the trial court

N.H. 216, 221 (2003). the petitioner when in the court’s judgment it would be equitable to do so.” proceedings and to revoke a shareholder’s election to purchase the shares of provision, it is free to amend it. Marceau v. Concord Heritage Life Ins. Co., 149 the court the discretion both to discontinue the corporate dissolution legislature disagree with our construction of the election irrevocability and consistent with our interpretation of RSA 293-A:14:34(a). Should the Giulietti court’s statutory analysis may be considered dicta, it is supportive of electing party’s reading of the statute and enforce election. Id. Though the aside election over the electing party’s objection, it declined to adopt the interpreted the plain language of the statute as permitting the trial court to set to the electing party’s attempt to recall the election. Because the Giulietti court to extend to the court’s authority to revoke election, and did not limit the term Giulietti, 784 A.2d at 943. Notably, the Giulietti court used the term “revoke” the election when equity so requires. electing party’s right to elect subject to the trial court’s authority to set aside A:14.34(a), and we have concluded that the election provision renders the appellate court concluded that “[t]he plain language of the statute . . . gives to those contained in our election statute, RSA 293-A:14.34(a) and (b), the the petitioning party. Interpreting statutory election provisions nearly identical proceedings so as to allow him to pursue his election to purchase the shares of that the trial court improperly refused to stay the judicial dissolution v. Giulietti, 784 A.2d 905, 943 (Conn. App. Ct. 2001), the electing party argued Finally, our interpretation is supported by foreign case law. In Giulietti

informs shareholders of whatever election rights exist under RSA 293grants the electing party an unassailable right to elect. Rather, it simply that an evidentiary hearing would have uncovered.

p. 10 in which they requested an evidentiary hearing and identify no additional facts evidentiary hearing in this context, do not direct us to any portion of the record point to a statutory provision or to other legal authority requiring an

reveals that the petitioning parties bore the burden of proof. one objected. At the dissolution merits hearing in 2005, however, the record its orders at any time prior to final judgment, misspoke about the burden of proof, making a passing comment to which no

Buonato concerning the control of New Killarney. The respondents do not

objective basis exists in the record to support the trial court’s equitable Finally, we conclude that the respondents have failed to establish that no

earlier presiding judge. Because the superior court has the discretion to review There appears to be one occasion during the 2004 hearing when the court elect to purchase Bendetson’s shares, essentially reversing the decision of the venture should not be dissolved before it would value [Bendetson’s] shares.” valuation hearing. Ultimately, the trial court declined to permit Buonato to dispute focused upon whether election would impart an unfair advantage to did not, as the respondents contend, require them “to first prove that the hearing and initiated a colloquy concerning the propriety of conducting a concerning the ownership structure of Killarney and New Killarney. The case and ultimately deciding to set aside the election. Further, the trial court posture of the case. Counsel for both parties proffered undisputed facts following the process permitted by the statute by reviewing the equities of the turned the statutory process “on its head” lacks merit. The trial court was In addition, the respondents’ argument that the trial court somehow

2004, the trial court, with a different presiding judge, commenced the valuation ruling and a stay of the scheduled valuation proceedings, which was denied. In hearing. The trial court engaged in a full colloquy with counsel about the purchase them. The petitioners requested an interlocutory appeal from the We also reject the respondents’ challenge to the lack of an evidentiary the fair value of Bendetson’s Killarney shares to carry out Buonato’s election to error in the process of this case. Abatement Int’l/Advatex Assocs., 149 N.H. 661, 664 (2003), we discern no legal

judicial dissolution proceeding and scheduled a merits hearing to determine In 2002, the superior court granted the respondents’ motion to stay the

equitable doctrine of laches). Assoc. v. Ventullo, 151 N.H. 571, 576-77 (2004) (reviewing decision on the evidence or erroneous as a matter of law. See Nordic Inn Condo. Owners’ a particular case, and we will uphold its decision unless it is unsupported by wide latitude in rendering decisions in equity according to the circumstances of judgment. State v. Lambert, 147 N.H. 295, 296 (2001). The trial court has unsupported by the record. p. 11 equitable decision to set aside Buonato’s stock purchase election is conclude that the respondents have failed to establish that the trial court’s

which Killarney directors are installed, other than the procedure described in expired. They contend that the evidence failed to establish the manner in

give Buonato a “leg up” in the ongoing limited partnership. Accordingly, we

challenge the trial court’s finding that the term for the Killarney directors directors whose terms have expired.” RSA 293-A:14.30(b)(ii). The respondents control of New Killarney. dissolution under both RSA 293-A:14.30(b)(i) and (ii). includes at least 2 consecutive annual meeting dates, to elect successors to Killarney, New Killarney’s sole general partner, and thus place Buonato in full equitable to decide valuation of Bendetson’s Killarney shares and essentially evidentiary hearing, the trial court concluded that the evidence supported shareholders are deadlocked in voting power and have failed, for a period that judicial dissolution under RSA 293-A:14.30, and after conducting an A:14.30(b)(ii), the petitioning shareholder must establish that “[t]he For the superior court to dissolve a corporation under RSA 293-

subsection (b)(i). subsection (b)(ii), we do not address the propriety of its conclusions under conclusion that Bendetson established all the necessary elements under (2002). Because we conclude that the record supports the trial court’s or are tainted by error of law. Appeal of State of N.H., 147 N.H. 426, 429 court’s findings and conclusions unless they are lacking in evidentiary support

purchase of Bendetson’s Killarney stock would give Buonato full ownership of partnership.” The trial court ultimately determined that it would not be hearing [for the partnership] because they can’t satisfy the terms of the sufficient grounds for judicial dissolution of Killarney. The petitioners sought partner, the case falls completely and there’s not going to be a liquidation Finally, the respondents argue that the evidence does not establish implications of election when counsel stated that “once we control the general

general partner of the limited partnership, the court anticipated that Buonato’s involving dissolution of the limited partnership. Because Killarney was the sole election ultimately might have on this structure, and the pending litigation would “have no control.” The respondents acknowledged the potential practical while Bendetson would retain his 49.5 percent ownership of New Killarney, he concern that the limited partnership agreement was in effect until 2044, and to seek dissolution of the limited partnership. The trial court expressed Bendetson’s control in New Killarney potentially would interfere with his ability

upon the ownership structure of Killarney and New Killarney, the impact the decision to set aside the election. During the 2004 hearing, the court focused dissolution of Killarney under RSA 293-A:14.30(b)(ii). p. 12 the trial court concluded that all elements were established for judicial

committed no error when it concluded that the term of the Killarney directors

and Bendetson continued to lawfully serve in a holdover capacity. Accordingly, by-laws, the current directors’ one-year terms had expired, though Buonato shareholders’ meeting since 2001.” The trial court determined that under the error. We conclude, however, that the respondents fail to demonstrate trial court does not mean that the length of his term is infinite.” Thus, the trial court

hopelessly deadlocked that they have not been able to schedule or hold a

elect successors to directors whose terms have expired is clearly erroneous. may continue to serve lawfully in a holdover capacity after his term has expired We agree with the trial court’s reading of this by-law: “The fact that a director laws permit the predecessor directors to remain serving in a holdover capacity.

Stockholders and the election and qualification of his successor.

years prior to the dissolution trial, and further found that “the parties are so was the last that occurred between the shareholders, about three and one-half expired, and thus, the trial court’s conclusion that the shareholders failed to shareholders on July 30, 2001. Indeed, the trial court found that this meeting “term of office [or] its expiration,” the current directors’ terms have never respondents argue that because the evidence does not establish a director’s year term. If successors are not in place at the conclusion of that term, the by- By their plain language, the by-laws provide that each director serves a one-

the Directors shall hold office until the next annual meeting of qualified. A Director elected by the Stockholders or elected by shall hold his office until his successor shall be elected and the Stockholders shall be one year, provided, however, that he [t]he term of office of a Director elected at the annual meeting of

elect successors to the Killarney directors at a special meeting of the Killarney Under the Killarney by-laws, Article First, Section 4,

By-Laws as the initial directors,” and it names Buonato and Bendetson. The

court, Buonato and Bendetson, Killarney’s sole shareholders, were unable to the shareholders “as soon thereafter as convenient.” As found by the trial following persons are hereby elected Directors to serve in accordance with the meeting, the directors must cause the election to occur at a special meeting of changed in accordance with the By-Laws, is fixed at two (2) and that the occur each March, and if an election of directors is not held at the annual document specifies that “[t]he number of directors of the Corporation, until The Killarney by-laws require an annual meeting of shareholders to

Buonato and Bendetson when they first incorporated Killarney. That the Incorporator Action by Unanimous Written Consent document signed by p. 13 13

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

293-A:14.30(b)(ii). that the trial court erred in ordering the dissolution of Killarney under RSA legal elements provided in the statute. The respondents have failed to establish dissolution under RSA 293-A:14.30(b)(ii) upon the existence of all necessary the face of the trial court’s order that it based its decision for judicial assuming this single conclusion of law constituted legal error, it is clear from failure to hold annual meetings is a basis for judicial dissolution. Even that the trial court erred in a particular conclusion of law determining that the Finally, we decline to address the merits of the respondents’ argument

the decision in that case inapposite to the circumstances before us. shareholder, would not second the motion. The differing facts of Levine make but expressly moved for a vote to elect directors, and Buonato, the only other they parenthetically aver that the Bendetson not only attended the July 30, 2001 special shareholder meeting warranted.” Id. By contrast, the undisputed evidence in this case shows that of directors,” and thus “the extreme remedy of dissolution [was] not more than a possibility of future shareholder deadlock preventing the election So. 2d at 375. The court concluded that the evidence established “nothing and that the petitioning shareholder refused to attend meetings. Levine, 608 the shareholders made no attempt to elect directors for fifteen to twenty years deadlock had prevented an election of directors because evidence showed that court rejected the petitioning shareholder’s contention that the shareholders’ conclude, however, that the Levine case provides no guidance here. The Levine dissolution under [an] MBCA provision identical to RSA 293-A:14.30(b)(ii).” We

1992), to support their position. Although they provide no analysis of the case, The respondents rely upon Levine v. Beem, 608 So. 2d 373, 374-75 (Ala.

status. expired with the passage of one year from their election, despite their holdover