This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rink Systems, Inc., et al.,
Arena Systems, Inc., et al.,
Filed December 14, 1999
Freeborn County District Court
File No. C1-97-126
David A. OíConnor, 1500 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for appellants)
Donald W. Savelkoul, Peterson, Savelkoul, Schlichting & Davies, Ltd., 211 South Newton Avenue, Albert Lea, MN 56007 (for respondents)
Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge judgment for respondents, arguing that the district courtís findings of fact and conclusions of law are clearly erroneous. Because the evidence supports the findings of fact, which, in turn, sustain the conclusions of law, we affirm.
Respondent Rink Systems, Inc. (Rink Systems) is a corporation that constructs, installs, and maintains ice arenas and ice arena components. Respondents Steven and Stacey Overgaard (Overgaards) are directors, officers, and shareholders of Rink Systems.
Appellant Arena Contractors & Equipment, Inc. (ACE) was a Minnesota corporation that sold ice arena equipment and was a competitor of Rink Systems. Appellant Peter Sampair was its sole shareholder.
In 1995, appellant Sampair and respondents Overgaards discussed ending their rivalry in the accessories business by jointly forming a new entity that would market rink accessories (hockey nets, tools, plexiglass, benches, etc.). The parties orally agreed to form respondent Rink Systems Accessories and Services, Inc. (d/b/a "Arena Systems"). Articles of incorporation were filed with the Minnesota Secretary of State. On January 1, 1996, Arena Systems commenced business as a merger of the rink accessories divisions of Rink Systems and ACE.
Arena Systemsí directors, officers, and shareholders were respondents Overgaards, who each owned 25% of the corporate stock, and appellant Sampair, who owned 50%. Each unit contributed equipment and customer lists to Arena Systems.
In mid-1996, several disputes arose concerning the merger agreement and the operation of Arena Systems, particularly after appellant Sampair established appellant Arena Systems, Inc. (ASI), a Minnesota corporation that took over the business, name, equipment, employees, 800 telephone number, and accounts of Arena Systems.
In January 1997, respondents filed this action, alleging violations of statutory duties, conversion, breach of contract, unfair competition/interference, and business/consumer fraud. Appellants counterclaimed, alleging conversion, breach of contract, fraud, and defamation. After a seven-day bench trial, the district court awarded respondents $207,039.13 in damages. Appellants now challenge the district courtís findings of fact and conclusions of law, arguing they are unsupported by the evidence and clearly erroneous.
D E C I S I O N
Appellants allege that 23 of the district courtís findings of fact and six of its conclusions of law are clearly erroneous. As a threshold matter, appellants have waived several of these challenges by failing to offer argument or legal support. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (an assignment of error based on mere assertion not supported by any argument or authorities is waived unless prejudicial error is obvious); see also Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n. 1 (Minn. App. 1994) (appellate courts may decline to address allegations unsupported by legal analysis or citation). Part of appellantsí challenge to finding 16 and their challenges to finding 25(c), finding 47, finding 39, and conclusions of law 3, 4, 5, 6, 7, and 8 are therefore waived.
On appeal, findings made by the district court will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. "Clearly erroneous" means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975); Minn. R. Civ. P. 52.01.
Appellants organize their objections into categories. Some of appellantsí objections result from their own misstatements of the findings; the record shows that the other findings are supported by the evidence.
1. Agency Determination
Appellants argue that the evidence as a whole does not support the district courtís determination that Arena Systems was a mere agent of Rink Systems. Appellants misstate the record. They cite finding two, which states that
[p]laintiff Rink Systems Accessories and Services, Inc. (d/b/a "Arena Systems") (hereinafter Arena Systems) commenced business on January 1, 1996 as a merger between the "rink accessories" (hockey nets, tools, plexiglass, etc.) division of Rink Systems and Arena Contractors and Equipment, Inc. (one of the Defendants). Arena Systems is a Minnesota corporation, with corporate offices in Albert Lea. Arena Systemsí Board of Directors consists of Plaintiffs Stacey and Steven Overgaard and Defendant Peter Sampair ("Sampair"). These three individuals are also Arena Systemsí officers and shareholders. Arena Systems is owned 25% by Stacey Overgaard, 25% by Steven Overgaard, and 50% by Sampair. Sampair was to hold the title of Chief Executive Officer with his compensation set at $30,000 per year.
But finding two does not say that Arena Systems was not an independent legal entity.
Appellants challenge part of finding 16:
Arena Systemsí role under the agreement was to simply make sales and take orders, which were then to be sent to Rink Systems for further processing.
But Steven Overgaard testified that Arena Systems "was being set up really just as a sales company for Rink Systems." The finding is supported.
2. Propriety of Revenue Deposits
Appellants also challenge another part of finding 16:
Rink Systems was responsible for providing all financing, purchasing and maintaining inventory, filling orders, shipping product, invoicing customers, and collecting payment. However, as indicated above, the parties did not reach an agreement on the method of compensation. Rink Systems in performance of the above accounting, collecting payments, co-mingled money from the new Arena Systems company with its own monies and its own accounting system. This co-mingling of assets was not known to the [appellants]. [Respondent] eventually did account for the monies received and this court finds the accounting by [respondent] Rink Systems to be accurate.
The record shows that (1) after an order was taken by Arena Systems, "Rink Systems would handle the purchasing of that item, the receiving of that item, the warehousing, the shipping, and any invoicing of that item," (2) Rink Systems would then pay Arena Systems a portion of the gross profits, (3) revenue was commingled, and (4) respondents properly accounted for commingled monies. The evidence supports the finding.
3. Finding 36
Appellants claim that Finding 36 ignores the stipulation of Rink Systems referenced in Finding 25(c) and is without support in the record. Finding 36 states:
Sampair owes the Overgaards and Rink Systems $182,247. This $182,247 can be broken down as follows:
a. Money advanced to Arena Systems by Rink Systems, but not repaid or credited
b. 50% of ASI sale price proceeds Ė after liabilities paid off
TOTAL = $182,767.00
Finding 25(c) states:
From the first day of business in January 1996 to October of 1996 all revenue from the sales of [Arena Systems] was deposited by the Overgaards directly into a general operating account of [Rink Systems].
Finding 36 does not ignore the stipulation in finding 25(c). The findings do not conflict, and the evidence supports finding 36 independently of finding 25(c). Steven Overgaard testified that Rink Systems "lent Arena Systems extensive amounts of money." Trial exhibits show that amount to be $157,247. Trial exhibits also show that Rink Systems was entitled to $25,520, or 50% of the ASI sale proceeds after liabilities were paid off. The evidence supports the finding.
5. Findings of Fact 40, 41, 42, 50, and 51
Appellants state that findings of fact 40, 41, 42, 50, and 51 have no support in the evidence and ignore the stipulation at Finding 25(a). These findings refer to Sampairís founding of a new corporation, Arena Systems, Inc (ASI), and to his transferring of Arena Systemsí assets to this new corporation, which directly competed with respondent Rink Systems and did not turn over any sales proceeds or profits to respondents.
Sampair testified that (1) he did not formally dissolve Arena Systems, (2) he established a new corporation (Arena Systems, Inc.) to directly compete with Arena Systems, (3) he used a name that closely resembled that of the existing corporation, and (4) he transferred the assets of Arena Systems to Arena Systems, Inc. The evidence supports the findings.
Next, appellants argue that Rink Systems "had no interest in any of the assets sold to GST [d/b/a "Arena Systems"]." Specifically, appellant cites finding 25(a), which states: "[a]ll right, title and interest in the telephone number 1-800-320-6908 is not disputed and vested in Sampair before and after incorporation of [Arena Systems]."
The evidence shows that Rink Systems contributed two valuable 800 numbers to Arena Systems. These numbers were forwarded to Sampairís 800 number, which he in turn transferred to Arena Systems, Inc. and later sold to GST. The district court did not err in concluding that respondents should be compensated for this asset.
6. Finding 46
Appellants argue that finding 46 is unsupported by the evidence. Finding 46 states:
Sampair believes that his actions were justified and that the Overgaards were improperly handling the bookkeeping and accounting for "Arena Systems". Sampair believed that he had made every effort possible to obtain the records and to reach an agreement with the Overgaards before he began diverting sales and money to his secret bank account.
Sampair testified that he tried to obtain financial statements from Rink Systems and that when they refused, Sampair, without informing respondents, diverted Arena Systems money to separate accounts without informing the Overgaards. The evidence supports this finding.
7. Finding 48
Appellants argue that finding 48 is unsupported by the evidence. Finding 48 states: "Sampair operated and allowed Arena Systems to move forward under the arrangement, that he later denied existed, for seven months." The evidence as a whole clearly shows that the parties entered into an agreement and operated under that agreement for seven months.
8. Findings 43, 44, and 45
Appellants argue that findings 43, 44, and 45 are unsupported by the evidence. These findings deal with damages suffered by respondents. Appellants contend that "[i]f the trial court substituted the Appellants for Respondents in paragraphs 43, 44 and 45 [these findings] would have been supported by the evidence." Because the parties presented conflicting evidence with respect to damages, this is a credibility determination by the district court to which we must defer. See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (stating it is for trier of fact to decide weight and credibility of expert witnesses testimony); Minn. R. Civ. P. 52.01.
9. Finding of Fact 32
Finally, appellants challenge finding 32 as unsupported by the evidence. It states:
In approximately August of 1996, Sampair began to divert the proceeds from the sales of Arena Systems to an account he opened at the Lake Area Bank rather than forwarding them to Rink Systems as had been the practice. Sampair also invoiced customers directly using AS forms and put the proceeds in the above account. The transactions were not disclosed to the Overgaards, nor were they transferred to the Albert Lea office for accounting purposes. These diversions of proceeds caused a hardship on Arena Systems and Rink Systems. The diverted sales totaled $195,302.39.
Both witness testimony and trial exhibits show that Sampair diverted $195,302.39 in Arena Systems sales into a covert bank account. The evidence supports the finding.