MILLER, P. J., ANDREWS, J., and RICKMAN, J.
Miller, Presiding Judge.
dispute arises from the forced sale of one brother's
stock in a family-owned business, Wallace Electric Company.
Dorsey "Doss" Wallace, and his brothers, Phillip
and Gary, all worked for Wallace Electric and owned stock in
the company. After Doss stopped working for Wallace Electric
in 1994, he did not sell - and the company did not even
attempt to buy - his stock as was required by the company
Bylaws and the shareholders' Buy-Sell Agreement
("the Agreement"). When Phillip asked Doss about
returning the shares in 2003, Doss unequivocally refused.
Several years later, Doss filed a complaint alleging that
Phillip and Gary breached their fiduciary duty towards him as
a shareholder. During the ensuing litigation, both parties
sought specific performance of either the Bylaws or the
Agreement. Following a bench trial, the trial court found
that Doss breached the Agreement when he did not return the
stock in 1994, and it valued Doss's shares as they would
have been valued in 1994, with a reduction for the minority
interest Doss held. Doss now appeals. After a thorough review
of the record and the applicable law, we conclude that the
trial court erred in determining that Doss was required to
sell his shares at the 1994 value and in applying a minority
interest discount to the value of the stock. Instead, the
trial court should have valued Doss's shares in 2003 when
he breached the Agreement by refusing to sell his shares.
Moreover, because we conclude that Doss continued to hold his
shares until he breached the Agreement in 2003, the trial
court erred in finding that Doss's claims for breach of
fiduciary duty and tortious interference were moot.
Accordingly, we vacate the trial court's order, and
remand the case for further proceedings.
from bench trials, where the trial judge sits as the trier of
fact and has the opportunity to assess the credibility of the
witnesses, are reviewed under the clearly erroneous standard.
We will not disturb a trial court's findings if there is
any evidence to support them." (Citations and footnotes
omitted.) Jenkins v. Sallie Mae, Inc., 286 Ga.App.
502 (649 S.E.2d 802) (2007). Questions of law are reviewed de
novo. Lewis v. McNeely, 336 Ga.App. 696 (783 S.E.2d
facts of this case are undisputed. Wallace Electric is a
family-owned company that was incorporated in 1959 by the
parties' father. The father was head of Wallace Electric
and controlled the business until his death in 2000. After
the father died, Gary, as president, and Phillip, as vice
president, controlled Wallace Electric, increasing the
company's profitability substantially.
stated purpose of the company is to make a profit.
Additionally, because Wallace Electric was designed to be a
family-owned business, only current employees of the company
could retain stock. Pursuant to Wallace Electric's
Bylaws, enacted in 1959, the retention and sale of stock were
controlled as follows:
[I]f the employment of any stockholder or officer is
terminated, for any reason, the corporation shall have
the right and duty to purchase all the stock of said
employee or officer and the former officer or employee shall
be obligated to sell his stock pursuant to these by-laws.
The purchase price, in any event, shall be the book
value of the stock (as of the time of said notice) as
determined according to accepted accounting practices, and
shall be binding upon the parties.
supplied.) ("Article V" of the Bylaws).
1988, Wallace Electric issued stock to all three brothers;
Gary and Phillip received 30 shares (25 percent) each and
Doss received 20 shares (16.67 percent). Additionally,
when Doss, Gary, and Phillip obtained their shares in 1988,
the parties entered into the Agreement, which provided,
Upon the . . . termination of employment of a Shareholder,
such Shareholder . . . shall sell, and the Corporation shall
buy, all, but not less than all, of the stock owned by such
Shareholder for a purchase price equal to the current
. . .
In the event of termination of employment of a Shareholder,
the Corporation shall purchase all of the stock owned by such
Shareholder within sixty (60) days after the date of
termination of employment.
supplied.) Finally, the Agreement specified that damages for
breach of the Agreement were "immeasurable, " and
thus, the Agreement contemplated specific performance or
other equitable remedies. In signing the Agreement, the
parties expressly waived any defense that they had an
adequate remedy at law. By its own terms, the Agreement
expired in 2008.
three brothers initially worked for Wallace Electric, but
Doss left his employment in 1994. At the time Doss left
Wallace Electric, he owned one-sixth of the issued stock. He
did not offer to sell his stock to the company as required by
the Bylaws and Agreement, however, because he planned to
return to the company "at some point." Nor did
Wallace Electric attempt to buy Doss's stock when his
2003, during a review of the company's status, Gary and
Phillip realized that Wallace Electric had not repurchased
Doss's stock after Doss left the company. Phillip
contacted Doss to inquire about Wallace Electric repurchasing
Doss's stock, but they never discussed a purchase price
because Doss adamantly refused to sell it. Phillip allegedly
spoke to Doss again about selling the stock in 2006 or 2007,
to no avail.
August 2011, Doss filed a complaint for an accounting and
damages against Gary and Phillip, alleging breach of
fiduciary duty and tortious deprivation of his interest in
Wallace Electric, and seeking punitive damages and attorney
fees. He subsequently moved to add Wallace Electric as a
defendant, and filed an amended complaint to add claims that
are not relevant to the instant appeal.
Phillip, and Wallace Electric (collectively "the
defendants") filed an answer, a counterclaim seeking
damages and fees for abusive litigation, and an amended
counterclaim. In the amended counterclaim, the defendants
argued that, as a matter of equity, Doss should be ordered to
sell his stock back to Wallace Electric at the 1994 value.
Doss moved to dismiss the counterclaim as untimely, but the
trial court denied the motion.
2015, Doss notified Wallace Electric that he wished to sell
his shares back to the company at their present value. He
also filed a motion for specific performance, demanding that
Wallace Electric repurchase the 25 percent interest in stock
that he now owned as a result of his father's shares
being reabsorbed into the company, at Wallace Electric's
2015 book value. In response, the defendants tendered Doss a
check in the amount of $54, 200, which represented the 1994
book value of Doss's 16.67 percent interest in the
company at that time. Doss rejected this offer. At the time,
the book value of Wallace Electric was just over $8 million.
bench trial, the parties agreed that there should be a buyout
of Doss's shares. The parties disagreed, however, about
which document controlled the buyout and the appropriate year
for valuing Doss's stock. Doss contended that Article V
of the Bylaws controlled the manner and value of the stock
purchase, and that his offer to sell his stock in 2015
required Wallace Electric to purchase the stock at the 2015
value. The defendants argued that the Agreement controlled
because the Bylaws expired prior to the effective date of the
Agreement, the Agreement superseded the Bylaws, and
therefore, Doss was obligated to sell his stock at the 1994
trial court found in favor of Phillip and Gary, and ordered
Doss to sell his shares at the 1994 value. In doing so,
however, the trial court initially did not expressly rule on
any of the parties' specific legal arguments. Doss
appealed to the Supreme Court of Georgia,  which vacated the
trial court's order and remanded for the trial court to
make factual findings and state its legal conclusions. See
Wallace v. Wallace, 301 Ga. 195 (800 S.E.2d 303)
remand, the trial court found that (1) the Agreement governed
the dispute because it superseded and replaced Article V of
the Bylaws; (2) the Agreement was not executory in nature;
(3) Doss breached the Agreement in 1994 when he failed to
sell his stock upon leaving Wallace Electric; (4) the
defendants' counterclaims were timely because Doss's
breach continued through 2008, the complaint was filed within
the statute of limitations, and the counterclaims related
back to the timely-filed complaint; (5) an equitable remedy
was appropriate to give effect to the parties' intent and
required the conclusion that Doss be held to the terms of the
Agreement as if he had sold his shares in 1994 when he left
the company; and (6) in light of this conclusion, Doss's
remaining claims were moot. This appeal followed.
several related enumerations of error, Doss argues that the
trial court erred in concluding that (a) the counterclaim was
timely; (b) the Agreement controlled; and ...