Appeal from Superior Court of King County. Docket No: 832110530. Date filed: 01/04/95. Judge signing: Hon. Liem E. Tuai.
Authored by Faye C. Kennedy. Concurring: William W. Baker, Walter E. Webster.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Alex Dourbetas appeals the trial court's order on summary judgment dismissing his claims against Leo Bersentes and Delamar, Inc., contending that summary judgment was improper because: (1) genuine issues of material fact exist with respect to the alleged accord and satisfaction; (2) the record lacks evidence of a full revelation by Bersentes, who held the position of a fiduciary. Because Bersentes established the elements of an accord and satisfaction as a matter of law, and because Dourbetas failed to raise the issue of Bersentes's fiduciary obligations below, we affirm the trial court's order on summary judgment.
We also grant Bersentes's request for an award of attorney fees for having to defend this appeal.
Delamar, Inc., was a Washington corporation formed for the purpose of purchasing and operating the Delamar Apartments. In the late 1970's, 1,000 shares of Delamar's common stock were issued and outstanding. Eight hundred fifty of the shares were held by George Anogianakis and the remaining 150 shares were held by the respondent, Leo Bersentes. When the Delamar Apartments were sold in 1977, the corporation's sole asset was the profit from the sale.
In 1979, as security for the payment of a debt, Anogianakis pledged 550 of his shares of Delamar stock to the appellant, Alex Dourbetas. In a letter dated October 1, 1979, Anogianakis advised Delamar's board of directors that he had assigned to Dourbetas his right to receive cash distributions from Delamar based on the 550 shares of pledged stock.
Sometime after October of 1979, however, Anogianakis attempted to rescind the rights granted to Dourbetas. Dourbetas subsequently brought an action in California superior court to establish the amount of and to recover on the debt owed him by Anogianakis. That action remained pending for several years.
Sometime after the sale of the Delamar Apartments, Delamar's board appointed Bersentes to accomplish the dissolution of the corporation. As trustee, Bersentes was responsible for distributing the corporate funds in accordance with corporate records. Although the claimants to the funds entered into a number of negotiations regarding the appropriate distribution, by July of 1983 no agreement had been reached. On July 22, 1983, counsel for Bersentes notified Dourbetas that if he and Anogianakis could reach a written agreement regarding the disbursement of Delamar's funds on terms acceptable to the other shareholders, the disbursement would be accomplished promptly. He warned, however, that:
5. If, on the other hand, an agreement cannot be reached on or before Friday, July 29, 1983, this letter will stand as notification to all parties concerned that Leo Bersentes will exercise his best judgment and discretion and authority to disburse the Delamar, Inc. funds in accordance with corporate documents and legal rights.
On August 10, 1983, Dourbetas filed a complaint against Delamar and Bersentes in King County Superior Court seeking: (1) an injunction precluding Delamar from distributing any of the funds generated by its dissolution; (2) the appointment of a receiver to manage the funds; (3) an accounting; (4) judgment declaring his rights as to Delamar's funds; (5) an order commanding the receiver to distribute the sums due under the court's declaration of rights; (6) an award of attorney fees and costs. On August 19, 1983, the court issued a temporary restraining order authorizing Bersentes to make limited disbursements to certain creditors, and requiring Bersentes to hold the remaining funds generated by Delamar's dissolution in an interest bearing account pending the resolution of Dourbetas's suit against Anogianakis in California superior court. On September 26, 1983, the court entered an injunction pendente lite affirming the temporary restraining order in its entirety. Bersentes testified that he complied with the court's order by holding Delamar's remaining funds in an interest bearing account.
In late 1989 or early 1990, Dourbetas contacted Bersentes and indicated that he had been awarded judgment against Anogianakis in California. The parties thereafter had a series of Discussions in which they attempted to agree to a distribution of the funds held in trust by Bersentes. During the Discussions, Bersentes informed Dourbetas that, before any division of the funds, Bersentes was entitled to be reimbursed for: (1) his attorney fees; (2) his services to Delamar, including managing and selling corporate property, and acting as trustee during and after the dissolution; (3) his share of the $118,000 allegedly misappropriated by Anogianakis in 1979. Dourbetas disputed Bersentes's claims of entitlement.
In April of 1990, the parties executed a document entitled Guaranty and Indemnity Agreement (Agreement). The Agreement provided that Bersentes held in trust $152,898.96 generated by Delamar's dissolution. The Agreement further provided that "Dourbetas is willing to accept the amount of $113,829.02 of those trust funds to offset certain money obligations owed by George Anogianakis (Delamar Inc. President before dissolution of Corporation) to Dourbetas". Clerk's Papers at 82.
Bersentes signed the agreement on April 30, 1990, and sent it to Dourbetas together with a letter stating that, of the funds held in trust, $39,069.94 would be distributed to Bersentes as reimbursement for funds allegedly misappropriated by Anogianakis. The letter further stated that the remaining $113,829.02 would be distributed "to the appropriate persons, considering 'Legal obligations or rights and taxes for 1990' have been established or guarantees have signed." Clerk's Papers at 84. Bersentes testified that he informed Dourbetas that he would distribute the funds as agreed after Dourbetas provided him copies of the California judgment establishing the validity of the debt owed by Anogianakis.
Almost two years later, following further Discussions between the parties, Dourbetas signed the Agreement on January 18, 1992, and returned it to Bersentes. Rather than signing the Agreement as presented to him, however, Dourbetas deleted the figures representing the total balance in the trust account and the amount to be paid to him, and attached a note stating: "Leo - Please fill in the amounts as you fairly determine to be.
It would also be proper if you send me a photo copy of the bank passbook from the beginning of the account." Clerk's Papers at 87. Upon his receipt of the Agreement as signed by Dourbetas, Bersentes contacted Dourbetas and they discussed the taxes that were due on the trust account for the period since the Agreement was originally drafted. Bersentes testified that he and Dourbetas agreed that a payment of $113,000 ...