Midkiff v. Gingrich

Case Date: 02/17/2005
Court: 5th District Appellate
Docket No: 5-03-0059 Rel

                   

Notice

Decision filed 02/17/05. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-03-0059

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


CHRISTINA L. MIDKIFF, M.D., and ) Appeal from the
MARLENE H. FREEMAN, M.D., ) Circuit Court of
  ) Madison County.
               Plaintiffs and Counterdefendants-Appellees, )  
  )  
v. ) No. 02-CH-223
  )  
TINA M.F. GINGRICH, M.D., and TINA M.F. )  
GINGRICH, M.D., P.C., ) Honorable
  ) Ralph J. Mendelsohn,
               Defendants and Counterplaintiffs-Appellants. ) Judge, presiding.


JUSTICE CHAPMAN delivered the opinion of the court:

The plaintiffs, Dr. Marlene Freeman and Dr. Christina Midkiff, filed a complaintagainst the defendants, Dr. Tina Gingrich and Tina M.F. Gingrich, M.D., P.C., seeking,among other things, nonpublic shareholder relief pursuant to section 12.56 of the BusinessCorporation Act of 1983 (Act) (805 ILCS 5/12.56 (West 2002)). Dr. Gingrich filed a noticeof election to purchase the plaintiffs' shares (see 805 ILCS 5/12.56(f) (West 2002)). The trialcourt granted the plaintiffs' motion to strike Dr. Gingrich's notice of election, finding that itwas defective because it stated the amount at which she was willing to purchase the sharesas a formula rather than as a numerical figure. The court granted Dr. Gingrich's motion tocertify questions for interlocutory appellate review pursuant to Illinois Supreme Court Rule308 (155 Ill. 2d R. 308). On appeal, Dr. Gingrich argues that the trial court erred in (1)holding that section 12.56 requires a notice of election to state a specific numerical figureas the amount at which a shareholder is willing to purchase stock, (2) denying Dr. Gingrich'smotion to reconsider its order granting the plaintiffs' motion to strike her election, (3)denying her alternative motion for leave to file an amended notice of election after the timeperiod for filing a notice of election had expired, and (4) ordering a stay for only thoseportions of the parties' litigation that related to the shareholder remedy. We reverse.

 

I. BACKGROUND

In April 1994, Dr. Gingrich incorporated her obstetrics-gynecology (ob-gyn) practiceas Tina M.F. Gingrich, M.D., P.C., which has operated since then under the name MaryvilleWomen's Center. In 1997, Dr. Gingrich hired Dr. Freeman, and in 1998, she hired Dr.Midkiff. On October 1, 1999, the three entered into a stock purchase agreement. Under theagreement, all three became equal owners of the corporation; however, the agreement gaveDr. Gingrich veto power. This resulted in a deadlock in 2001.

On March 30, 2002, the plaintiffs filed a four-count complaint seeking (1) nonpublicshareholder relief under section 12.56 of the Act, (2) actual and punitive damages for breachof fiduciary duty, (3) a declaratory judgment ruling that a noncompetition clause containedin the stock purchase agreement is unenforceable, and (4) declaratory and injunctive reliefrelating to the operation of the ob-gyn practice. On April 17, Dr. Gingrich filed an answerand counterclaim. Her counterclaim sought damages for breach of contract, breach offiduciary duty, intentional infliction of emotional distress, defamation, and civil conspiracy,and it also sought a declaratory judgment ruling that the stock purchase agreement-includingthe covenant not to compete-valid.

On May 29, 2002, Dr. Gingrich filed a notice of election to purchase the plaintiffs'shares. See 805 ILCS 5/12.56(f) (West 2002). In her notice of election, Dr. Gingrich offeredto purchase the shares at a price to be determined pursuant to a formula included in the stockpurchase agreement for valuing shares. That formula provides that the value of the sharesis the fair value of the corporate medical and office equipment and furniture and fixtures plusthe average receivable collection percentage for the previous 12 months multiplied by thetotal accounts receivable divided by the number of shares. She alleged in her notice ofelection that the precise dollar amount would be readily ascertainable once certain taxdocuments were obtained.

The plaintiffs did not respond to the notice of election within the 30 days providedby statute for parties to agree to the fair value of the shares to be purchased (805 ILCS5/12.56(f)(5) (West 2002)). In fact, they never expressly accepted or rejected Dr. Gingrich'soffer to purchase. On August 20, 2002, they filed a motion to strike the notice of election,arguing that it was deficient because (1) it failed to state a specific dollar amount at whichDr. Gingrich was willing to purchase the shares and (2) it purported to add terms of purchasein addition to the sale price. Specifically, the notice of election asked the court to imposeas terms of a sale (1) a covenant not to compete similar to the one contained in the stockpurchase agreement and (2) a requirement that Dr. Midkiff and Dr. Freeman not take patientfiles with them without patient consent.

On August 27, 2002, the court held a hearing on the plaintiffs' motion to strike Dr.Gingrich's notice of election. The court agreed with the plaintiffs and granted the motion. In so ruling, the court noted that although Dr. Gingrich alleged that the numerical value ofthe shares was "readily ascertainable" using the formula, no one had been able to state anamount. At this point, Dr. Gingrich's attorney stated that the formula yielded a value of$113,183 per share.

Dr. Gingrich moved orally for leave to file an amended notice of election stating aspecific dollar amount, arguing that she had attempted in good faith to comply with thestatutory requirement that she state an "amount" at which she was willing to purchase theshares and that the 90-day period for filing a timely notice of election (805 ILCS 5/12.56(f)(West 2002)) had run out because the plaintiffs waited until the end of that period to respondto her notice of election. The court declined to rule on the motion at that time, insteadoffering to set another hearing at which to consider it.

On September 5, Dr. Gingrich filed both a motion to reconsider the court's August 27ruling and a supplemental/alternative motion for leave to file an amended election. OnSeptember 20, the court heard arguments and denied both motions. The court agreed withDr. Gingrich, however, that the issues presented involved questions of law on which therewere substantial grounds for a difference of opinion. The court therefore granted her motionto certify questions for appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Inlight of the interlocutory appeal, the court stayed the proceedings relating to section 12.56of the Act but did not stay the proceedings on any of the parties' other claims.

On January 15, 2003, the court entered a written order certifying the followingquestions for appeal: (1) whether the trial court erred in ruling that section 12.56(f) of theAct (805 ILCS 5/12.56(f) (West 2002)) requires a specific dollar amount and cannot besatisfied by reference to a formula, (2) whether the court erred in denying Dr. Gingrich'smotion to reconsider, (3) whether the court erred in denying Dr. Gingrich leave to file anamended election, and (4) whether the court erred in staying only the proceedings related tosection 12.56. We initially denied Dr. Gingrich's petition for leave to appeal (Midkiff v.Gingrich, No. 5-03-0059 (March 11, 2003) (unpublished order)); however, the IllinoisSupreme Court vacated our order on January 28, 2004, and directed us to consider the meritsof Dr. Gingrich's appeal (Midkiff v. Gingrich, 207 Ill. 2d 606, 801 N.E.2d 947 (2004)(supervisory order)). We answer the first and fourth certified questions in the affirmative. Because we reverse the order granting the plaintiffs' motion to strike Dr. Gingrich's noticeof election, we need not address the court's ruling on Dr. Gingrich's motion to reconsider asa separate issue, and her motion to file an alternative or supplemental notice of election ismoot.

 

II. DISCUSSION

A. Motion to Strike the Notice of Election

Dr. Gingrich first argues that the trial court erred in granting the plaintiffs' motion tostrike her notice of election. Our resolution of this question calls for us to construe, for thefirst time, section 12.56(f) of the Act. That statute provides, in relevant part:

"At any time within 90 days after the filing of the petition under this Section,or at such time determined by the court to be equitable, the corporation or one ormore shareholders may elect to purchase all *** of the shares owned by thepetitioning shareholder for their fair value. An election pursuant to this Section shallstate in writing the amount which the electing party will pay for the shares." (Emphasis added.) 805 ILCS 5/12.56(f) (West 2002).

It is the last sentence that is at issue. More precisely, we are asked to determine thespecificity with which an electing shareholder must state in writing the amount she is willingto pay for the shares in order to satisfy the requirement.

Our primary goal in statutory construction is to ascertain and effectuate the intent ofthe legislature. The best evidence of legislative intent is the words of the statute itself, whichshould be given their plain and ordinary meaning. We need only go beyond the words of thestatute itself if we cannot discern the intent of the legislature from the statutory language. Paris v. Feder, 179 Ill. 2d 173, 177, 688 N.E.2d 137, 139 (1997). Looking to the plain andordinary meaning of the word "amount" does not help us to resolve this question because theword has different (albeit similar) meanings, one of which supports the plaintiffs' positionand one of which supports the defendants' position. Random House Webster's CollegeDictionary defines amount as "the sum total of two or more quantities or sums" and"quantity; measure ***." Random House Webster's College Dictionary 46 (1991). Merriam-Webster Online Dictionary defines amount as "the total number or quantity: AGGREGATE"and "the quantity at hand or under consideration." Merriam-Webster Online Dictionary, athttp://www.m-w.com/cgi-bin/dictionary (last visited Feb. 15, 2005). In describing the term'susage, both dictionaries specifically distinguish between the usage of the word amount andthe usage of the word number. Merriam-Webster Online Dictionary, at http://www.m-w.com/cgi-bin/dictionary (last visited Feb. 15, 2005) (noting that the word number is mainlyused with countable nouns while amount is mainly used with uncountable or mass nouns);Random House Webster's College Dictionary 46 (1991) (noting the same distinction). Where statutory language is subject to more than one reasonable interpretation, it isambiguous. Hyatt Corp. v. Sweet, 230 Ill. App. 3d 423, 429, 594 N.E.2d 1243, 1247 (1992). Thus, we must look beyond the words of the statute to discern the legislature's intent.

In construing a statute, we must consider the problem it was enacted to remedy. SeeHyatt Corp., 230 Ill. App. 3d at 430, 594 N.E.2d at 1247. We must evaluate the statute asa whole, interpreting each provision in connection with every other provision. Paris, 179Ill. 2d at 177, 688 N.E.2d at 139. We must also interpret the statute in a manner that willavoid absurd results. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 59, 759 N.E.2d533, 555 (2001). Construing the provision at issue in concert with the entire nonpublicshareholder remedy statute, we find that the legislature's intent in providing nonpetitioningshareholders the option of filing a notice of election to purchase shares is to avoid the harshremedy of a corporate dissolution. Another section of the statute provides that a dissolutionis to be a remedy of last resort. 805 ILCS 5/12.56(b)(12) (West 2002). This policy favoringthe purchase of shares over a dissolution is further promoted by provisions allowing the courtto order a sale of stock even if no shareholder files a notice of election (805 ILCS 5/12.56(e)(West 2002)) and making a notice of election to purchase shares irrevocable (805 ILCS5/12.56(f)(1) (West 2002)). A liberal interpretation of the procedural requirements for filinga notice of election obviously better serves this interest because fewer notices of election willfail than under a more narrow construction. A broader interpretation would also be in linewith our general policy of liberally construing pleading requirements. See Illinois BellTelephone Co. v. Dynaweld, Inc., 70 Ill. App. 3d 387, 391, 388 N.E.2d 157, 160 (1979).

These observations do not resolve the question, however. Rather, we must considerwhy our legislature chose to add the specific provision at issue-that is, the requirement thata notice of election state in writing an amount the electing shareholder is willing to pay forthe shares. The Model Business Corporation Act provision upon which our statute is based(Model Bus. Corp. Act