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COA affirms dissolution of corporation embroiled in family dispute

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A company owned by two brothers – one disabled and one terminally ill – was properly dissolved by the trial court over the disabled brother’s objections, the Indiana Court of Appeals held.

Timothy and Randall Enders inherited Enders & Longway Builders Inc. from their father in the 1980s and each owned 50 percent of the company. They had a buy-sell agreement, which strictly limited their ability to transfer their shares of the company and provided that upon the death of one brother, his shares passed automatically to the surviving brother, unless, among other occurrences, the corporation was dissolved.

Timothy Enders stopped actively working for the company around 2004 because of a disability but had some of his bills paid by the company. Randall Enders continued to work until he became terminally ill in 2012. Randall Enders sought to dissolve the corporation because it was no longer profitable. Timothy Enders told his brother to “get out of bed” in order to make the company profitable.

Randall Enders filed a petition for a judicial dissolution of the corporation, alleging that the directors and shareholders were deadlocked in the management of corporate affairs. The trial court retroactively granted the dissolution effective the date of the hearing, even though Randall Enders had died the day after the hearing and before the court ruled.

The business’s accountant Mark McNamee testified at trial about the company’s lack of profits, that Timothy Enders hadn’t performed any services for the company since 2004, and the deadlock between the brothers over dissolving the company disadvantaged shareholders and directors.

“In short, the evidence before the trial court established that the corporation was no longer profitable because of Timothy’s disability and Randall’s terminal illness. Consequently, the business of the corporation could no longer be conducted to the advantage of the shareholders, who were deadlocked as to whether to dissolve the corporation. Accordingly, under these circumstances, we cannot say that the trial court erred when it dissolved the corporation,” Judge John Baker wrote in Timothy S. Enders and Enders & Longway Builders, Inc. v. Debra Sue Enders as Personal Representative of the Estate of Randall Enders, 71A03-1211-PL-494.
 

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

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