JEAN H. MCNAIR, APPELLANT,
v.
PAVLAKOS/MCNAIR DEVELOPMENT COMPANY, APPELLEE

Fla. 5th DCA | 1991-03-28
No. 90-1565
DIAMANTIS, J., concurs., GRIFFIN, J., dissents without opinion.
576 So. 2d 933 Florida District Court of Appeal, Fifth District (1991) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A minority shareholder challenged a trial court order requiring her to pay an appraiser's fees during dissenter's rights litigation under Florida's appraisal statute. The appellate court affirmed, finding that while costs are ultimately to be assessed against the corporation under section 607.247(9), the trial court has discretion to require interim payment from the shareholder absent a showing of abuse.


Holding

The trial court did not err. While section 607.247(9) addresses the ultimate assessment of costs against the corporation, it does not prohibit a trial court from exercising discretion to require interim payment from a shareholder, provided there is no abuse of that discretion.


Headnotes

[1] A trial court may order a shareholder to pay interim appraisal costs, even if the statute generally requires costs to be assessed against the corporation, absent a showin…

[2] A trial court has discretionary authority to tax interim costs against a shareholder in the absence of a showing of abuse of that discretion.

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Key Quotes

“Under section 607.247(9), the court may order a shareholder to pay costs if the court finds that a shareholder's refusal to accept an offer for stock was arbitrary, vexatious, or not in good faith.”

Establishes the statutory standard for assessing costs against a shareholder

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Facts & Procedural History

The shareholder, a dissenting minority shareholder, sought appraisal of her stock pursuant to Florida's dissenter's rights statute. The trial court ap…

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Opinion of the Court
PETERSON, Judge.

PETERSON, Judge.

The issue presented by a dissenting minority shareholder is whether the trial court erred by requiring the appellant shareholder initially to pay costs incurred during pendency of litigation when section 607.247(9), Florida Statutes (1987), generally requires costs and expenses to be assessed against the corporation. The trial court appointed the specific certified public accountant suggested by the shareholder in her motion to appoint an appraiser pursuant to section 607.247(7), Florida Statutes (1987). The trial court required the shareholder to pay the appraiser but reserved jurisdiction to award fees and costs at the conclusion of the action. • Later, the trial court entered an order requiring the shareholder to pay the court-appointed appraiser within sixty days or suffer the consequences of stricken pleadings. The shareholder did not pay the appraiser, and the court struck the shareholder’s pleadings.

The shareholder has furnished no record of the hearings below in which the issue was considered. We have nothing before us that would provide us with the basis for the trial court’s decision. The order denying the shareholder’s motion for reconsideration indicated only that “all grounds alleged” were previously considered by the court. It is the burden of an appellant to present a record that will overcome the presumption of correctness of the trial court’s findings, and a judgment which is not fundamentally erroneous on its face must be affirmed. Ahmed v. Travelers Indemnity Co., 516 So. 2d 40 (Fla. 3d DCA 1987).

Under section 607.247(9), the court may order a shareholder to pay costs if the court finds that a shareholder’s refusal to accept an offer for stock was arbitrary, vexatious, or not in good faith. The absence of a more informative record in this appeal invites speculation whether any refusal existed; whether it was arbitrary, vexatious, or not in good faith; or whether assets were available to the corporation to timely pay the court-appointed appraiser. The shareholder was given the opportunity to supplement the record pursuant to rule 9.200(f)(2), Florida Rules of Appellate Procedure, but the submitted “Statement of Evidence” did nothing to provide informa tion beyond what appears in the pleadings and orders already in the record. Furthermore, it is apparent that the procedural requirements of rule 9.200(b)(4), Florida Rules of Appellate Procedure, were not followed.

Section 607.247(9) directing the manner in which costs ultimately will be assessed in an action does not address the problem of determining the initial source of funds from which a court appointee is to be paid. While we would anticipate that interim appraisal costs would be funded predominately by the corporation, we see no reason to cloud the discretionary authority of the court to tax interim costs against a shareholder in the absence of a showing of an abuse of that discretion and in the absence of a prohibition against doing so under section 607.247(9).

AFFIRMED.

DIAMANTIS, J., concurs.

GRIFFIN, J., dissents without opinion.


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Cited By

  • Polizzi v. Polizzi, 600 So. 2d 490 (Fla. 5th DCA 1992)
    …Florida Supreme Court should consider adopting a rule or policy covering timely rendition of judgments, but we should not do so on an ad hoc basis. . Vandergriff v. Vandergriff, 456 So. 2d 464 (Fla.1984); McNair v. Pavlakos/McNair Development Co., 576 So. 2d 933 (Fla.5th DCA 1991); Boylan v. Boylan, 571 So. 2d 580 (Fla.4th DCA 1990); Wright v. Wright, 431 So. 2d 177 (Fla.5th DCA 1983). . Blue Lakes Apartments v. George Gowing, Inc., 464 So. 2d 705 (Fla.4th DCA 1985); Lurio v. Lurio, 443 So. 2d 197 (Fla.3d…
  • de Clements v. de Clements, 662 So. 2d 1276 (Fla. 3d DCA 1995)
    …seeks review has the burden of providing an adequate record that will overcome the presumption that the trial court’s findings are correct. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979); McNair v. Pavlakos/McNair Dev. Co., 576 So. 2d 933 (Fla. 5th DCA 1991); Boylan v. Boylan, 571 So. 2d 580 (Fla. 4th DCA 1990); Ahmed v. Travelers Indem. Co., 516 So. 2d 40 (Fla. 3d DCA 1987). However, the majority now places this financial burden on the Master, and consequently, the county who financ…
  • Maricella Haddad v. Cura, 674 So. 2d 168 (Fla. 3d DCA 1996)
    …t, a report of that evidence in one of the forms permitted by the rules is absolutely essential to an appellate review.”). Since the judgment is not otherwise fundamentally flawed on its face, it must be affirmed. McNair v. Pavlakos/McNair Dev. Co., 576 So. 2d 933 (Fla. 5th DCA 1991); Ahmed v. Travelers Indem. Co., 516 So. 2d 40 (Fla. 3d DCA 1987). Affirmed. . The appellee, Jose Cura did not file a brief on appeal and was precluded from taking part in oral argument.…

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