Mary Fondel Semien, Ind., Etc. v. Raymond M. Fondel, Sr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-255

MARY FONDEL SEMIEN, IND., ETC., ET AL.

VERSUS

RAYMOND M. FONDEL, SR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-4817
HONORABLE DAVID RITCHIE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
James T. Genovese, Judges.

Genovese, J., concurs in part, dissents in part, and assigns reasons.

AFFIRMED.

James Wade Smith
Attorney at Law
P. O. Box 1706
Lake Charles, LA 70602
(337) 436-8424
Counsel for Defendant/Appellee:
Raymond M. Fondel, Sr.

Stephen Ronald Streete
Salter & Streete
4216 Lake St.
Lake Charles, LA 70601
(337) 474-1644
Counsel for Plaintiffs/Appellees:
Mary Fondel Semien
Francese Fondel
Fondel Memorial Chapel, Inc.

W. Thomas Barrett, III
Attorney at Law
3401 Ryan Street, Suite 307
Lake Charles, LA 70605
(337) 474-7311
Counsel for Third Party Appellant:
George Fondel

DECUIR, Judge.

George Fondel, an aggrieved third party not named in the suit at issue before

us, appeals the judgment rendered which excludes him as a shareholder in the family

funeral home business. He contests the factual finding that he is no longer a

shareholder in the corporation known as Fondel Memorial Chapel, Inc. No other

party has appealed, answered the appeal, or responded to the appeal. For the

following reasons, we affirm the factual findings of the trial court.

This case was originally filed by Mary Fondel Simien and Francese Fondel

against their brother, Raymond Fondel. While acting as president of Fondel

Memorial Chapel, Inc., Raymond suffered symptoms of a stroke and was hospitalized

in an intensive care unit for a number of weeks. Mary took over the business and

discovered what she considered to be gross mismanagement of the corporation.

When Raymond started to recover, Mary and Francese sought to enjoin him from

returning to manage the funeral home. The trial court initially granted a temporary

restraining order and held a series of hearings over the course of a year in an effort

to determine whether a permanent injunction should be issued. The matter was

recharacterized as a writ of quo warranto through which the purported officers of the

corporation were directed to show by what authority they held power. Ultimately,

however, the fundamental question before the court was ownership of the

corporation.

The transcript and the exhibits in the record before us show that Fondel

Memorial Chapel, Inc. was started in 1966 when three Fondel brothers purchased the

Northside Memorial Chapel in Lake Charles. With the encouragement of their

parents, Raymond, George, and Marion Fondel purchased the business and its assets

and, within a year, changed the name to Fondel Memorial Chapel, Inc. Raymond, a

licensed embalmer, was assigned 334 shares of stock, and it was agreed that he would

run the business. George and Marion each had 333 shares of stock and worked in the

business. Other family members, including plaintiffs Mary and Francese, another

brother, Franklin, and at least two nephews, worked in the business part-time or on

an as needed basis. In 1971, Marion left the business for a job in the aluminum

industry when his siblings told him he was no longer a shareholder. By the 1980s,

both Mary and Francese considered themselves shareholders and officers of the

corporation. During Raymond’s 2007 hospitalization, Mary and Francese, acting as

shareholders, voted themselves officers of the corporation.

The corporation was run informally. Very few corporate meetings were held

through the years; corporate minutes and other records were kept sporadically.

Financial and tax records were sparse, and the testimony indicated that even payroll

was done mostly on a cash basis. No dividends were paid, and profits were never

disbursed. The trial court found great “misunderstanding and ignorance with regard

to the law of corporations and what is expected and required of people who are

officers in corporations.”

Regarding ownership of shares in the corporation, the evidence showed a sale

of shares from George to Francese for $500.00 which divested him of his interest,

although the sale reflected the transfer of only ten shares. Nevertheless, in George’s

divorce proceedings filed shortly after the sale, George affirmed that he owned no

interest in Fondel Memorial Chapel, Inc. Finding a valid transfer of ownership from

George to Francese had taken place in 1980, which transfer was confirmed by

documentation submitted in George’s subsequent divorce and community property

partition, the trial court reached the following factual conclusion: “it was clear that

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his intention was to sell his shares, all of his interests, to his sister.” Consequently,

the trial court rejected the opinions of two handwriting experts who testified that

George’s signature on the 1980 sale document was a forgery, and the court concluded

that George was no longer an owner of the corporation. The trial court also

determined there was no evidence of any transfer of shares, by sale or donation, from

Raymond or Marion to Mary or any other person, Fondel sibling or not. Therefore,

the court concluded that Raymond remains the owner of his original 334 shares of the

corporation while Francese and Marion each own 333 shares and Mary owns nothing.

A shareholders’ meeting was ordered to be held within ten days for a determination

of “new officers and future control of the company.”

George Fondel is the only person before this court on appeal. He contends the

trial court erred in concluding that the 1980 bill of sale of ten shares of stock to

Francese was authentic and actually conveyed his entire interest in the corporation.

He also urges this court to find error in the trial court’s disregard of the handwriting

experts’ opinion that his signature on the bill of sale was a forgery.

We have reviewed the record before us and find no manifest error in the factual

conclusions and credibility determinations reached by the trial court. George’s intent

to divest himself of an ownership interest in the corporation was apparent in the sale

documents executed prior to his divorce, and his affirmation of that act during the

divorce proceedings corroborate the transfer of ownership.

The judgment is affirmed. Costs of this appeal are assessed to George Fondel.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-255

MARY FONDEL SEMIEN, IND., ETC., ET AL.

VERSUS

RAYMOND M. FONDEL, SR.

GENOVESE, J., concurs in part, dissents in part, and assigns reasons.

I agree and concur with the majority that a sale of stock in Fondel Memorial

Chapel, Inc., took place from George Fondel (George) to his sister, Francese Fondel

(Francese). However, I disagree with the majority that the sale from George to

Francese constituted a sale of George’s “entire interest in the corporation.”

The 1980 bill of sale clearly and unequivocally shows a sale of ten (10) shares

of George’s three hundred thirty-three (333) shares of stock in the corporation to

Francese for $500.00. There is nothing in the record before us which legally supports

the majority’s finding that George divested his entire interest (all 333 shares of stock)

in the corporation in favor of Francese or anyone else.

The majority mentions “George’s intent to divest himself of an ownership

interest in the corporation . . . and his affirmation . . . during the divorce proceedings

[which] corroborate the transfer of ownership.” This is not a case of intent and

affirmation. George sold ten shares of stock and only ten shares of stock in the

corporation to Francese—not three hundred thirty-three shares of stock. Intent,

affirmation, and words to the contrary do not legally alter the original and only sale

of ten shares of George’s stock to Francese. There is no evidence in the record of any

consideration for any sale of stock more than the $500.00 consideration for the ten

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shares of stock sold by George to Francese. Surely, the $500.00 consideration alone

would be insufficient consideration for the sale of all of George’s three hundred

thirty-three shares of stock in the corporation. I dissent from the majority on that

issue and would find that George remains the owner of three hundred twenty-three

(323) shares of stock in the corporation.

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