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L.L.C. v. Anter

Court of Appeals of Ohio, Eighth District

July 11, 2013


Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-752119

ATTORNEYS FOR APPELLANTS For Theresa Julia Kratus Philip Wesley Lambert James F. Koehler KoehlerNeal, L.L.C., For Dolores Anter, et al. David C. Eisler.

ATTORNEYS FOR APPELLEES Richard P. Goddard Alexander B. Reich Calfee, Halter & Griswold, L.L.P. The Calfee Building.

BEFORE: E.T. Gallagher, J., Boyle, P.J., and Rocco, J.



{¶1} In this consolidated appeal, defendants-appellants William H. Maloof, Angela Maloof, S.A.M. Inc., Nora Maloof, Macron Investment Company, Joseph Edward Anter, Dolores Anter, and Theresa Julia Kratus (collectively "appellants") appeal the trial court's decision granting summary judgment in favor of plaintiff-appellee 2115-2121 Ontario Building, L.L.C. ("Ontario"). In her consolidated appeal, appellant Theresa Julia Kratus also appeals the trial court's judgment taxing certain court reporter fees as costs. We find no merit to the appeals and affirm the trial court's judgments.

{¶2} This dispute involves the validity of a single share of stock in Macron Investment Company ("Macron"). Ontario filed its complaint seeking: (1) a declaratory judgment that it is the owner of 32 of 64 outstanding Macron shares; (2) an injunction ordering Macron to deliver to Ontario a share certificate representing 32 shares of Macron common stock; and (3) an accounting. Ontario alleged that it purchased 32 shares and 50 percent of the issued and outstanding shares of Macron stock in good faith and without knowledge of any defect in any of the purchased shares.

{¶3} Appellant Theresa Julia Kratus ("Kratus") filed a counterclaim for declaratory relief, requesting a declaration that 63, not 64 shares of Macron common stock are issued and outstanding. Appellants contend that Ontario purchased only 31 shares of Macron stock and held a position as a minority shareholder. Appellants assert that the disputed share ("share 64") is invalid because it was never properly issued by the corporation.

{¶ 4} Macron's primary asset was a building located at 2115-2121 Ontario Street in Cleveland, formerly known as the Stanley Block Building. In 1967, Julia Macron, who was the sole owner of all 63 shares of Macron stock, distributed the shares to her eight nieces and nephews as gifts. Each niece and nephew received eight shares, except for Kimberly Maloof Haikal ("Kimberly"), who only received seven shares. William Maloof, who was an adult in 1967, received his eight shares in his own name. The remaining nieces and nephews were minors and their share certificates were issued to Nora Maloof, as custodian for the individual minors.

{¶5} After Julia Macron died in 1974, Macron's shareholders elected Nora Maloof, Dolores Anter, and Wesley C. Smith as the directors of the corporation. None of the directors were ever shareholders, and there is no evidence that the composition of the board of directors ever changed.

{¶ 6} On June 29, 1990, after all shareholders had reached the age of majority, Macron issued stock certificates to each shareholder in his or her own name. These certificates were numbered 101 through 109 and represented a total of 64 shares of stock. Certificate No. 101, representing eight shares, was issued to William Maloof and states that it is a transfer from "Nora Maloof, Custodian, " even though he was an adult when Julia Macron gifted the shares to him in 1967. The same notation appears on certificate No. 105, representing seven shares, and certificate No. 109, representing one share, both of which were issued to Kimberly. Two of the three directors of the corporation, president Nora Maloof and secretary Dolores Anter, executed each of the nine share certificates. Without exception, all of the share certificates state that each named shareholder is the owner of "fully paid and non-assessable shares of the par value of $100.00 each of common stock."

{¶7} On July 31, 2010, Macron issued share certificate No. 110 to Kimberly to reflect her purchase of eight shares of stock from Julie Anter. On August 2, 2010, Macron issued share certificates Nos. Ill. and 112 to Samir Haikal, Kimberly's husband, to reflect his purchase of 16 shares from Virginia Marie Maloof and Faye Judith Maloof.[1]Together, Kimberly and Samir Haikal owned share certificate Nos. 105, 109, 110, 111, and 112, which represented a total of 32 of the 64 shares, or 50 percent of Macron stock.

{¶ 8} Ontario was formed for the purpose of buying the Stanley Block Building located at 2115-2121 Ontario Street. In the fall of 2010, Louis Frangos ("Frangos"), president of USA Parking Systems, Inc. ("USA Parking") and Ontario's managing member, attempted to purchase the Stanley Block Building. When negotiations failed to result in a sale, USA Parking entered into a stock purchase agreement with Kimberly and Samir Haikal to purchase their 50 percent ownership interest in Macron for $284, 375. The sale, which was scheduled to close on January 31, 2011, was contingent on USA Parking's satisfactory inspection of the "records of the company."

{ΒΆ9} On January 14, 2011, USA Parking assigned its rights in the stock purchase agreement to Ontario. On that same date, Kimberly and Samir Haikal sold their shares to Ontario. Prior to January 14, 2011, the Haikal's attorney informed Frangos that there may be a defect in one of the shares he sought to purchase from Kimberly and Samir Haikal, which would prevent him from obtaining a 50 percent interest in Macron. Although Frangos's review of the corporate records had satisfied him that the Haikals owned 32 out of 64 shares, Frangos asked William Maloof's attorney for documents or other evidence substantiating his claim that Kimberly and Samir Haikal did ...

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