2010-700 Carleton, LLC v. Richard Balagur & a.

No. 2010-700

Grafton

Superior Court (Vaughan LYNN, J. The plaintiff, Carleton, LLC, appeals from an order of the

Vitt & Rattigan, P.L.C.

purpose of purchasing land and operating as a real estate holding company. defendant Richard Balagur formed defendant MTS Corporation (MTS) for the Schuster, Buttrey & Wing, P.A. The record supports the following. In 1995, Bukk Carleton and

filed. We affirm. the defendants’ notice of intention to adopt articles of dissolution was timely , J.) construing RSA 293-A:14.34(g) and finding that

and orally), for the defendants.

THE SUPREME COURT OF NEW HAMPSHIRE Green, P.A., of Manchester (Michael C. Harvell on the brief), for the plaintiff. G. Derry on the brief, and Mr. Schuster orally), and Sheehan Phinney Bass +

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

did not comply with its payment order. See commissioner to sell the Whipple Building in the event that Adrienne Balagur conditions of purchase” of the shares, we also affirmed its appointment of a installments. Concluding “that the trial court did not err in its terms and credits toward the purchase price of Carleton, LLC’s shares, and to pay in Balagur’s requests for certain adjustments to the valuation of MTS, for certain years. On May 13, p. 2 2010, we affirmed the trial court’s order denying Adrienne the purchase price, and offered to pay for the shares over a term of twenty trial court to enforce her election. Adrienne Balagur objected, sought to adjust election to purchase the shares. She refused, and Carleton, LLC requested the Carleton, LLC then sought to have Adrienne Balagur proceed with her & a.; Carleton, LLC v. Richard Balagur; Richard Balagur v. Bukk Carleton, No.

Balagur and Bukk Carleton soon began to deteriorate. See its vice-president, secretary, and treasurer. The relationship between Richard that time, Richard Balagur was the president of MTS; Bukk Carleton served as supra In August p. 2 2001, MTS purchased the Whipple Building in Lebanon. At. the value of Carleton, LLC’s shares. See Carleton, LLC v. Richard Balagur & a., as a going concern, and declining to apply a lack of marketability discount to see RSA 293-A:14.34(a), was equal to its proportionate interest in MTS valued trial court’s ruling that the “fair value” of Carleton, LLC’s ownership of MTS, ownership of MTS, which Adrienne Balagur sought to acquire. We affirmed the Balagur to dissolve MTS, see In May 2004, Carleton, LLC brought an action against MTS and Richard The central issue at trial was how to value Carleton, LLC’s fifty percent

Richard Balagur & a., supra. A:14.34 ( p. 2 2010). The cases were consolidated and tried. See Carleton, LLC v. an election to purchase shares in lieu of dissolution, pursuant to RSA 293pay him certain funds. Adrienne Balagur successfully moved for leave to file Balagur brought an action to compel MTS to transfer the cell tower to him and other primary asset, a cell tower located in Laconia. In February 2005, Richard Carleton, LLC also brought actions against Richard Balagur concerning MTS’s due MTS, and remove Richard Balagur as an officer and director of MTS. RSA 293-A:14.30 (2010), obtain payment of rent

p. 2 2008-0008 (N.H. January 21, 2009). & a.; Carleton, LLC v. Richard Balagur; Richard Balagur v. Bukk Carleton, No. owns all of the shares of Carleton, LLC. See Carleton, LLC v. Richard Balagur and, thus, became the owner of fifty percent of the MTS stock. Bukk Carleton daughters owned 500. Carleton, LLC eventually purchased the trust’s shares, Adrienne Balagur, owned 100, and the trustee of a trust for Carleton’s Of the 1,000 MTS shares, Richard Balagur owned 400, his mother, defendant p. 3 Bendetson v. Killarney, Inc.

scheme and not in isolation. Finally, we interpret a statute in the context of the overall statutory that the legislature did not see fit to incorporate in the statute.

to consider what the legislature might have said or add language date of the mandate, as June 6, 2010, was a Sunday. See beyond it for further indication of legislative intent, and we refuse parties agree that June 7, 2010, marked the end of the ten-day period after the a statute’s language is plain and unambiguous, we need not look it was filed within ten days after the mandate was issued on May 27, 2010. All ascribe the plain and ordinary meanings to the words used. When 2010. The defendants contend that their notice of June 7 was timely because and the ten-day period referred to in RSA 293-A:14.34(g) expired on June 3, review of the trial court’s statutory interpretation is de motion for reconsideration, our May 13 order became final on May 24, 2010, regarding the meaning of a statute considered as a whole, and our, 154 N.H. 637, 641 (2006) (citations omitted). untimely. Specifically, it argues that, because the defendants did not file a This court is the final arbiter of the legislature’s intent On appeal, Carleton, LLC contends that the defendants’ notice was interpretation of RSA 293-A:14.34(g). Resolution of this issue requires our review of the trial court’s

first examine the language of the statute, and where possible, we

Relying on State v. Gubitosi and, consequently, their notice was filed within ten days after that date. our May 13 order was not final until we issued the mandate on May 27, 2010, which our May 13 order became final. Richard Balagur and MTS argued that RSA 293-A:14.34(g) because it was not filed within ten days of the date on Carleton, LLC objected, contending that the notice was not timely filed under current defendants) filed a notice of intention to adopt articles of dissolution. this appeal followed. On June 7, 2010, Richard Balagur, Adrienne Balagur, and MTS (the July 9, 2010). Carleton, LLC unsuccessfully moved for reconsideration, and Richard Balagur and MTS Development Corp., No. 04-C-102 (N.H. Super. Ct. issue[d],” and that the defendants’ notice was timely filed. Carleton, LLC v. ruled that our May 13 order was “final and effective on the date the mandate

See Sup. Ct. R. 24. 2009-0708 (N.H. May 13, 2010). Our mandate was issued on May 27, 2010. p. 4 293-A:14.34(g). In Gubitosi purchase of a corporation’s shares “becomes final” within the context of RSA

We have not previously addressed when a court order directing the

effective date of an appellate court’s decision, that the mandate is of the mandate, not the date of the issuance of the decision, is the or affirmed, as the case may be. The general rule is that the date

(Emphasis added.)

the trial court that the judgment appealed from has been reversed

previously asserted on behalf of the corporation.

The mandate is the order that gives authoritative notice to to file a motion for reconsideration. Sup. Ct. R. conviction, the defendant has ten days from the date of the opinion

(e) and the petitioner may continue to pursue any claims

Sup. Ct. R.

copy of the court’s opinion or final order. See Sup. Ct. R. 24(2). When this court issues an opinion affirming a criminal mandate” be issued, the mandate will usually consist of a certified made within 10 days after the date the order becomes final otherwise. Although the supreme court may direct that a “formal reconsideration has expired, see accordance with the provisions of the last sentence of subsection id., unless this court orders the superior court clerk until after the time for filing a motion for is filed, the supreme court clerk will not forward the mandate to

24(1). However, even if no motion for reconsideration

“mandate” within seven days of the order denying the motion. the supreme court will forward to the clerk of the superior court a for reconsideration is filed, and subsequently denied, the clerk of

N.H. at 80. Specifically, we stated: The purchase ordered pursuant to subsection (e), shall be the issuance of an opinion affirming the defendant’s conviction. Gubitosi the petitioning shareholder reasonable fees and expenses in, 153 court to revoke a defendant’s bail during the pendency of an appeal and after longer be of any force or effect, except that the court may award A:14.07 and the order entered pursuant to subsection (e) shall no, however, we clarified the authority of the superior accordance with the provisions of RSA 293-A:14.05 through 293-

articles of dissolution, the corporation shall be dissolved in adopted and filed within 50 days thereafter. Upon filing of such A:14.02 and RSA 293-A:14.03, which articles shall then be intention to adopt articles of dissolution pursuant to RSA 293before that time the corporation files with the court a notice of its

RSA 293-A:14.34(g) provides: p. 5 5

Id

by a party . . . and none by the trial court,” the expiration of the required no exercise of jurisdiction by the trial court, and involved action “only defendants’ filing of the notice of intention to adopt articles of dissolution Further, we disagree with Carleton, LLC’s argument that, because the

the mandate was issued . . . .

but before a mandate had issued. See have filed for leave to submit a motion for reconsideration after the deadline, reconsideration to be filed within ten days of the order, the defendants could Although Supreme Court Rule 22 provides for a motion for acted upon by the [supreme] court.”). 24(4) (“Pleadings filed after the mandate has issued may not be considered or Accordingly, our decision is not final until we issue a mandate.”); Sup. Ct. R. our mandate issues, we have the power to alter or modify our judgment. In this case, the effective date of our decision was the date (“This court retains control over an appeal until we issue a mandate. Before omitted)); Charpentier v. Ortco Contractors, 480 F.3d 710, 713 ( p. 5 5th Cir. 2007) jurisdiction of the cause and transfers it to the appellate court.” (quotation 81 (“As a general rule the perfection of an appeal divests the Trial Court of over the case was transferred back to the trial court. See Gubitosi, 153 N.H. at RSA 293-A:14.34(g) when the mandate was issued on May 27, and jurisdiction become unalterable on May 24. Instead, the order became final for purposes of mandate. Consequently, we fail to see how our May 13 order could have do to alter or change this Court’s Order.” We disagree. have sua sponte modified or withdrawn the order anytime prior to issuing the filing a motion to reconsider expired, “there was nothing more the parties could and even absent a motion for reconsideration on the defendants’ part, we could finding the defendants’ June 7, 2010 filing timely because once the period for single justice’s motion.”); Sup. Ct. R. 24 (issuance of mandate). In addition, motion for reconsideration expired. It argues that the trial court erred in these rules in any instance on application of a party or on the court’s or a May 13 order became unalterable on May 24, 2010, when the period for filing a single justice thereof may suspend the requirements or provisions of any of the purposes of RSA 293-A:14.34(g), is to “become unalterable,” and that our expediting a decision, or for other good cause shown, the supreme court or a Carleton, LLC first argues that the plain meaning of “becomes final,” for Sup. Ct. R. 1 (“In the interest of

supporting the order.

facts of the instant case. the trial court was correct in its application of our reasoning in Gubitosi to the . at 81-82 (citations, quotation, and emphases omitted). We conclude that

the order and that the court’s opinion merely gives the reason for filing a motion for reconsideration. See p. 6 Here, our May 13 order provided a date certain to determine the deadline

mere expiration of the reconsideration period, however, is not warranted. the reconsideration period.” Such an assumption of certainty based on the action under RSA 293-A:14.34(g), is the tenth day following the expiration of only reasonable deadline known to the parties, by which a party must take dissolution of corporations” in New Hampshire. Carleton, LLC argues that “the chapter 293-A was “to provide certainty as to the formation, management and Carleton, LLC is correct that the legislature’s intended purpose in enacting RSA certain known to the parties.” For the purposes of this appeal, we assume that reconsideration period to determine finality “because that is the only date RSA 293-A:14.34(g) should be construed to use the expiration of the case and the intended purpose of RSA chapter 293-A, the timing provision of Finally, Carleton, LLC contends that in light of the circumstances of this

mail. See Sup. Ct. R. 22(1). As such, Carleton, LLC apparently – and, in this copy of a motion or notice of the filing for Carleton, LLC to receive by first class did not file a motion for reconsideration of the May 13 order, and there was no have sua reconsideration period but before a mandate had issued. In addition, we could Sup. Ct. R. 22(2). The defendants motion for reconsideration of our May 13 order even after the expiration of the conduct.” As noted, the defendants could have filed for leave to submit a degree of certainty in planning their affairs and subsequent courses of the parties” and our order “is the only notice that provides the parties with any A:14.34(g) because the mandate is “supplied only to the trial court, and not to the reconsideration period determines finality for the purposes of RSA 293- Nor are we persuaded by Carleton, LLC’s argument that the expiration of

subsequent courses of conduct. provide certainty to the parties in terms of planning their affairs and subject to modification. Consequently, it was not unalterable and did not authoritative notice issued to the parties,” we reiterate that the order was mandate. While we agree with Carleton, LLC that our order was “the only

sponte modified or withdrawn the order anytime prior to issuing the

constant. take any action, the calculus behind the finality of our order should remain statute. In other words, even if the trial court does not exercise jurisdiction or with certainty as to when an order of this court “becomes final” under the nature of the defendants’ filing as irrelevant to the issue of providing parties trial court pursuant to RSA 293-A:14.34(e). More important, we view the block the purchase of the corporation’s shares as previously ordered by the corporation’s filing clearly involved the trial court in that it was intended to notice of its intention to adopt articles of dissolution in a vacuum. The finality under RSA 293-A:14.34(g). We do not view a corporation’s filing of a reconsideration period, and not the issuance of the mandate, should determine p. 7 7

Affirmed

such change is better left to the rulemaking process. See case as a vehicle to, in essence, amend Rule 24. Instead, consideration of any to be issued to the parties in addition to the trial court, we decline to use this While we might agree that the better practice would be for the mandate

DALIANIS, C.J.