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Briskin v. Ogden-kildare Bldg. Corp.

APRIL 15, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.


Rehearing denied May 4, 1971.

The first count of a two count petition filed by June Briskin (petitioner) sought a writ a mandamus commanding the defendants Ogden-Kildare Building Corporation (Ogden-Kildare) and Alice Kaplan and Sophye Briskin, directors of, and respectively, the president and the secretary of Ogden-Kildare, to produce the books and records of Ogden-Kildare for specified past years for examination by petitioner's attorneys and accountants. In the second count petitioner sought the statutory penalty against the defendants for their allegedly wrongful refusal to comply with her earlier demand that she be allowed to inspect the books and records, pursuant to Section 45 of the Illinois Business Corporation Act. (Ill. Rev. Stat. 1969, ch. 32, par. 157.45.) The mandamus cause was tried before a jury and a verdict was returned for the petitioner. Judgment was entered on the verdict, the trial court directing the issuance of a writ of mandamus against the defendants from which they prosecute this appeal. The court found that there was no just reason to delay enforcement or appeal from the judgment on Count One.

Ogden-Kildare was organized by its founder, Max Briskin, for the purpose of acquiring and holding title to real property to house the facilities of the expanding Briskin Manufacturing Company, a family-owned corporation dealing in sheet metal fabrication and metal stamping. Max Briskin, owner of all of the common stock of Ogden-Kildare, declared his intention to make a gift of all of that stock to his children and their respective spouses, and in December of 1952, and January and February of 1953 he carried out his declared intention. As a result, petitioner, who was the wife of Max Briskin's son, Moray Briskin, received a total of 172 shares of Ogden-Kildare common stock. Defendants Alice Kaplan and Sophye Briskin, the daughter and the daughter-in-law of Max Briskin, respectively, received identical numbers of shares as the petitioner, as did the other Briskin children and their respective spouses. All of the common stock of the Ogden-Kildare company was thus held by members of the immediate Briskin family.

At the time of the formation of Ogden-Kildare, and continuing to the date of the filing of the instant petition, petitioner was an officer and a director of the company. From 1952 until the date of her husband Moray's death in 1960, petitioner participated in the stockholders and directors meetings of the company. After the death of her husband, petitioner moved to Florida and then to New Jersey, where she subsequently remarried. Max Briskin, the Ogden-Kildare founder, died in 1959.

It appears from the record that no written notices of meetings were sent to the petitioner or to her husband before his death, and also that none of the stockholders was ever paid dividends. It further appears that the meetings of the directors and stockholders were held at the home of Max Briskin prior to his death, and afterward at the home of his widow or the home of one of the Briskin children. There was evidence adduced by the defendants that, at the time that Max Briskin divided his Ogden-Kildare stock among his children and their spouses, he requested that no salaries be paid to the company officers or dividends to the stockholders, but that the profits of the company be put back into the company; petitioner testified that she did not recall such request having been made by Max Briskin or any of her co-stockholders. There is further evidence that petitioner received no information concerning the company's financial condition, or the like, since the year 1965. As to the size or number of the Ogden-Kildare corporate books and records, one defense witness testified that "if you spread them out one by one, they might take up the entire area of your desk here [the trial judge's bench]."

In 1962, petitioner engaged an attorney to represent her in the examination of the books and records of Ogden-Kildare for the alleged purpose of determining the value of her stock in anticipation of a sale of the stock, but that its value was not determined because she subsequently decided not to sell the stock. After her examination of the books and records had been made, a loan from the Ogden-Kildare company to another unnamed company was repaid.

On July 27, 1967, petitioner, through her attorneys, made a written demand upon the defendants to allow her attorneys and agents to examine and make abstracts of the minutes of all proceedings of the shareholders and directors meetings of Ogden-Kildare since its foundation, to examine specified records of the company from January 1, 1960, to the date of the demand, and to examine the stock transfer books and the record of shareholders of the company. The demand stated that the purposes of the examination to be:

"* * * to enable me to ascertain the value of my shares of stock in the corporation, to secure information as to the financial condition of the corporation, its management and the conduct of its affairs and to enable me to communicate with other shareholders of the corporation respecting the affairs of the corporation."

The demand was refused and this action followed.

In the petition seeking the writ of mandamus, petitioner alleged that her purpose in demanding the examination and in requesting the mandamus was that set forth in her demand of July 27, 1967. Defendants in their answer denied the petitioner's allegation in that respect and alleged that her demand was made without good and proper purpose and not in good faith. It was further affirmatively alleged in defendants' supplemental pleadings that petitioner knew the value of her stock through negotiations between her and the executor of her deceased husband's estate which owned her deceased husband's shares of the Ogden-Kildare stock, and that petitioner's true purposes in seeking the examination were one or more of the following:

"(a) to harass and oppress the Briskins to unending and costly litigation;

(b) to compel by this lawsuit and prior lawsuits the purchase of her Ogden common stock;

(c) to gather corporate financial materials once again for the improper purpose of commencing more and more ...

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