Berrett v. Purser & Edwards

HOWE, Justice:

Plaintiff Barbara K. Berrett brought this suit under Utah Code Ann. § 16-11-13 to compel her former employer, a professional corporation, to repurchase her shares in the corporation or, in the alternative, to have the court dissolve and liquidate the corporation. The trial court dismissed her complaint for failing to state a claim upon which relief could be granted. Utah R.Civ.P. 12(b)(6). She appeals.

Berrett, a licensed attorney, is a shareholder in and was employed by a law firm formerly known as Purser & Berrett and currently known as Purser & Edwards. *368The firm terminated her employment, and she now works for another law firm; however, she still owns her shares in Purser & Edwards. As she did with her old firm, Berrett practices mainly in insurance defense law with her new firm. Nothing in the articles of incorporation or bylaws of Purser & Edwards addresses the disposition of shares when a shareholder is no longer an employee, nor did Berrett have a private employment agreement dispositive of that question. On review, we accept the factual allegations in Berrett’s complaint as true, and we draw all reasonable inferences in a light most favorable to her. St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991).

Section 16-11-13 of the Professional Corporation Act provides for the redemption of shares in a professional corporation. It states in part:

The articles of incorporation may provide for the purchase or redemption of the shares of any shareholder upon the death or disqualification of such shareholder, or the same may be provided in the bylaws or by private agreement. In the absence of such' a provision in the articles of incorporation, the bylaws, or by private agreement, the professional corporation shall purchase the shares of a deceased shareholder or a shareholder no longer qualified to own shares in such corporation within 90 days after the death of the shareholder or disqualification of the shareholder, as the ease may be. The price for such shares shall be their reasonable fair value as of the date of death or disqualification of the shareholder. If the corporation shall fail to purchase said shares by the end of said 90 days, then the executor or administrator or other personal representative of a deceased shareholder or any disqualified shareholder may bring an action in the district court of the county in which the principal office or place of practice of the professional corporation is located for the enforcement of this provision. The court shall have power to award the plaintiff the reasonable fair value of his shares, or within its jurisdiction, may order the liquidation of the corporation.

Utah Code Ann. § 16-11-13 (emphasis added). Berrett alleges that she is “no longer qualified to own shares” in the professional corporation of Purser & Edwards. Her argument assumes that “qualified,” under the statute, means no longer employed by that corporation. Purser & Edwards argues for a narrower interpretation, i.e., that “qualified” means only duly licensed in the particular profession and since Berrett is still a licensed attorney, she is not “disqualified” and cannot force repurchase of her shares.

The legislature has not provided specific definitions of “qualified” and “disqualified” in the Professional Corporation Act. See Utah Code Ann. §§ 16-11-1 to -15. In Riche v. North Ogden Professional Corp., 763 P.2d 1210 (Utah Ct.App.1988), aff'd mem., 784 P.2d 1126 (Utah 1989), the court of appeals examined the involuntary transfer of shares in a medical corporation from a bankrupt shareholder to a nonprofessional creditor of that shareholder. In upholding the transfer, the court provided insight into section 16 — 11— 13 and, specifically, into the terms currently in question: “ ‘Qualification’ and ‘disqualification’ refer, in this sense, to whether a shareholder is qualified to hold stock in the professional corporation, i.e., whether he or she is duly licensed as a member of the profession.” Id. at 1214 n. 7 (emphasis added). It appears that the trial court relied on this language in dismissing Berrett’s complaint.

Berrett argues that by employing the language “in this sense,” the court of appeals was specifically limiting this statement to the facts of Riche. She asserts that whether one is duly licensed in the particular field is merely a threshold question and that she can be disqualified from owning shares even though she is still licensed because she is no longer employed with Purser & Edwards. We believe that by using the phrase “in this sense,” the court of appeals was referring to section 16-11-13, not to the specific facts of Riche.

The court of appeals explained its rationale in defining “qualified” to mean duly licensed: “ ‘[Ljegislation extending the power to incorporate to professionals seeks to assure that corporate control will remain with persons’ licensed in the profession, and bound by the *369same professional standards and ethics, by restricting the sale or transfer of stock to members of the profession.” Id. at 1213 (quoting Central State Bank v. Albright, 12 Kan.App.2d 175, 737 P.2d 65, 67 (1987)). There is nothing in Riche suggesting that “qualified” could additionally require an employment relationship.

In determining the scope of the term “qualified” in section 16-11-13, it is helpful to examine preceding sections within the same Act. Indeed, to interpret section 16-11-13, basic rules of statutory construction compel us to look at the Professional Corporation Act in its entirety. See Morton Int’l, Inc. v. Auditing Div., 814 P.2d 581, 591 (Utah 1991) (“[T]erms of a statute are to be interpreted as a comprehensive whole and not in a piecemeal fashion.”); CP Nat’l Corp. v. Public Serv. Comm’n, 638 P.2d 519, 523 (Utah 1981) (doubtful words are to be determined in light of their association with surrounding words and phrases).

Three preceding sections shed light on who may own shares in a professional corporation. Section 16-11-7 provides:

A professional corporation may issue the shares of its capital stock only to persons who are duly licensed to render the same specific professional services as those for which the corporation was organized. A shareholder may voluntarily transfer his shares in a professional corporation only to a person who is duly licensed to render the same specific professional services as those for which the corporation was organized. Any shares issued in violation of this section are void.

Thus, shares may be issued only to licensed persons, and those persons may voluntarily transfer their shares only to licensed persons. Further, in section 16-11-8, only a licensed person may be an officer, director, or shareholder, and in section 16-11-9, the corporation may render professional service only through licensed officers, employees, and agents. No other requirement to own shares is mentioned in any of these sections, and we should not import any. Thus, when section 16-11-13 conditions the obligation of the professional corporation to buy the shares of a shareholder when he or she is no longer qualified, the word “qualified” unmistakably refers to who may own shares as provided in section 16-11-7.

In Trittipo v. O’Brien, 204 Ill.App.3d 662, 149 Ill.Dec. 505, 508-09, 561 N.E.2d 1201, 1204-05 (1990), the court held that the provision of the Illinois Professional Corporation Act which required the redemption of shares when a person is no longer qualified did not apply to a shareholder who voluntarily terminated his employment. Likewise, the court viewed the act as a whole in arriving at this conclusion:

The first paragraph of section 415-11 limits the issuance of stock in a professional corporation to persons who are duly licensed or otherwise legally authorized to render the specific type of services which the corporation was organized to perform. Nothing in that paragraph requires that the right to be a shareholder is dependent upon the existence of an employment relationship between the shareholder and the corporation.
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Since licensure or other legal authorization to render the same services the corporation performs is the only qualification stated in the Act to become a shareholder in a professional corporation, a shareholder becomes “disqualified” under the second paragraph of section 415-11 only when he is no longer licensed to practice the profession of the corporation.

Id.

In addition, a Florida appellate court has held that a professional corporation engaged in law practice cannot be compelled to redeem shares held by a minority shareholder attorney upon termination of his employment in the absence of a statute, articles of incorporation, or an agreement providing for such relief. Corlett, Killian, Hardeman, McIntosh & Levi v. Merritt, 478 So.2d 828, 831 (Fla.Dist.Ct.App.1985). Like the Utah Professional Corporation Act, the Florida statutory scheme pertaining to corporations lacked any provisions which imposed “a duty upon the corporation to redeem the shares of a terminated corporate employee.” Id. at 829. The Florida court refused to exercise *370its “equitable” powers to order redemption or dissolve the corporation. Id. at 832. Instead, it determined that “while a shareholder may be an employee of the corporation, he need not be: the relationships of the corporation to its employees and to its shareholders are distinct.” Id. at 830 n. 5; see Early Detection Ctr., Inc. v. Wilson, 248 Kan. 869, 811 P.2d 860, 865 (1991) (stating that term “qualified person” under Kansas professional corporation statute meant one licensed to practice in the profession).

In support of her argument, Berrett relies on Vinall v. Hoffman, 133 Ariz. 322, 651 P.2d 850, 851 (1982) (en banc), where the Arizona Supreme Court required a professional corporation of dentists to repurchase the shares of a stockholder who had resigned from practicing with the corporation. However, the repurchase statute interpreted in that case was worded markedly different from section 16-11-13. It provided:

“Within ninety days following the death, insanity, bankruptcy, retirement, resignation, expulsion or other legal disqualification of a shareholder, all of the shares of such shareholder shall be transferred to or acquired by persons qualified to own such shares or by the corporation.”

Vinall, 651 P.2d at 851 (quoting Ariz.Rev. Stat.Ann. § 10-909(D)). Thus, the Arizona court had a much broader statute before it than we do with section 16-11-13. The court interpreted “resignation” to mean resignation from the professional corporation rather than from the profession, and based on that interpretation, the duty to repurchase was clear. Id.

A cardinal rule of statutory construction is that courts are not to infer substantive terms into the text that are not already there. Rather, the interpretation must be based on the language used, and the court has no power to rewrite the statute to conform to an intention not expressed. Mountain States Tel. & Tel. Co. v. Public Serv. Comm’n, 107 Utah 502, 155 P.2d 184, 185 (1945); see Trittipo, 149 Ill.Dec. at 507, 561 N.E.2d at 1203 (“The statute should be interpreted on the basis of what was written, and courts should not search for any subtle or not readily apparent intention of the legislature.”). To accept Berrett’s interpretation would require us to change the existing language and meaning of sections 16-11-7, -8, and -9 in order to maintain consistency throughout the entire Act. To require an employment relationship would amount to our reading substantive terms into section 16-11-13 which the legislature did not see fit to include.

Section 16-11-13 affords minimum protection to shareholders when they fail to otherwise provide. If we adopted Berrett’s interpretation that being duly licensed is simply a threshold requirement and that “qualified” can also mean employment with Purser & Edwards, we would embark down a road of uncertainty. The term “qualified to own shares” would be limited only by the imagination of shareholders seeking redemption by the professional corporation. If someone is a poor attorney, is he or she disqualified from owning shares? If the working relationship breaks down between shareholders of a professional corporation, are they “no longer qualified to own shares”? What if they move out of the state in which they are licensed to practice? These questions must find their answers in private employment agreements, articles of incorporation, or bylaws rather than in the minimum protection provided by section 16-11-13. We therefore limit the definition of “qualified” to its logical and consistent meaning within the entire Professional Corporation Act. Anything beyond that would constitute judicial legislation and the assumption of powers beyond those of this court.

Finally, Berrett contends that if she has no cause of action under section 16-11-13 to force redemption of her shares, she may be compelled as a shareholder in a competing law firm to violate several ethical rules. First, she expresses concern that if she remains a shareholder in Purser & Edwards, she could possibly receive a dividend from that firm that would constitute illegal fee splitting among lawyers in violation of rule 1.5 of the Utah Rules of Professional Conduct. Second, she asserts that as a shareholder in Purser & Edwards, she is entitled to inspect and copy certain information of the firm, including minutes of its shareholder *371meetings. This, she contends, would violate rule 1.6, which requires client confidentiality. Third, she argues that since her new firm also specializes in insurance defense, she will most likely find herself litigating against clients of Purser & Edwards. She urges that this would violate rule 1.8, which mandates withdrawal in cases where a lawyer holds a pecuniary interest.

It is true that a professional corporation which is also a law firm has unique ethical obligations and concerns due to the rules of professional responsibility. However, all of Berrett’s ethical concerns are hypothetical, and we will not allow them to dictate our statutory interpretation. We have already determined that section 16-11-13 does not mandate redemption of shares when a shareholder leaves the employment of a professional corporation. We will not alter this legal analysis and construe the statute otherwise because of conjectural ethical predicaments.

Corlett addressed similar issues, and the court was unpersuaded that these ethical concerns should “impose a requirement of redemption upon every professional service corporation (or its majority shareholder) engaged in the practice of law.” Corlett, 478 So.2d at 833.

In our view, none of the ethical dilemmas or “[ajbsurdities [which] could result because of this unique position” ... are so compelling as to warrant a court-imposed redemption obligation on the part of the corporation.... Likewise, that an ex-employee’s shares may fall into or be in the hands of an attorney hostile to the law firm, or that ex-employees may own shares in more than one professional service corporation at the same time, are matters not before us, and while they might justify action by the Florida Bar, do not justify a court compelling redemption.

Id. at 834 (quoting Vinall, 651 P.2d at 852).

If and when Berrett’s ethical problems arise, they can be dealt with at that time. They may impact Purser & Edwards as well as Berrett. We concur with the court in Trittipo “that the failure to compel the redemption of [her] share may produce harsh results and the potential for ethical problems. It [is] our belief, however, that these concerns do not justify unauthorized judicial intervention.” Trittipo, 149 Ill.Dec. at 512, 561 N.E.2d at 1208. Hopefully, possible ethical problems will motivate both attorneys and law firms to provide by agreement, article, or bylaw for the disposition of shares in case of employment termination. “Where an employee who purchases such shares for valuable consideration either lacks the foresight or the bargaining power to insist upon a redemption agreement in the event of his resignation, it is not incumbent upon the courts to protect him from his own improvidence or lack of strength.” Corlett, 478 So.2d at 834. Any ethical violation that might arise will be the result of an attorney’s own failure to provide for the specific disposition of shares in case of termination from the law firm. Agreements forestalling these possible violations are not uncommon. See id. at 831.

We affirm the trial court’s dismissal of Berrett’s complaint.

ZIMMERMAN, C.J., and JAMES Z. DAVIS, Court of Appeals Judge, concur.