final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Monica J.
Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A.,
Tampa, for Appellant.
A. Dibert of Bogin, Munns & Munns, P.A., Gainesville, for
Appellee Constance R. Uphold.
Mary Virginia Graham challenges an order appointing a
custodian to manage a small business she owns together with
Dr. Constance R. Uphold. The business is subject to a
judicial dissolution proceeding initiated by Dr. Uphold. Dr.
Graham argues that the appointment of the custodian violated
the statutory stay of the dissolution proceedings in effect
when Dr. Graham elected to purchase Dr. Uphold's shares
and requested a fair value determination from the court. For
the reasons below, we agree with Dr. Graham and reverse.
story of Barmarrae Books, Inc. (BBI) is one of a business
relationship gone wrong. Drs. Graham and Uphold each own
fifty percent of the shares in BBI, a small corporation they
formed to sell a medical textbook they co-wrote. In recent
years, multiple conflicts between the two shareholders have
destroyed what used to be a functional business relationship.
Uphold initiated these proceedings by filing a complaint for
involuntary dissolution of BBI pursuant to section
607.1430(2), Florida Statutes (2016), as a result of
continuing deadlock among the parties regarding BBI's
operations and management. The complaint also included a
claim for an equitable accounting regarding the copyright of
after the dissolution action was initiated, Dr. Graham filed
a notice under section 607.1436, Florida Statutes, electing
to purchase all of Dr. Uphold's corporate shares in lieu
of the dissolution. After the parties failed to agree on the
fair value of Dr. Uphold's shares, Dr. Graham asked the
court to make the determination pursuant to section
607.1436(4), which triggered a stay of the dissolution
nine months later, Dr. Uphold moved under sections
607.1431(3) and 607.1432, Florida Statutes, for the court to
appoint a custodian pendente lite "to preserve BBI's
assets and to carry on and manage its business and
affairs." Dr. Uphold alleged a series of improprieties
and breaches of fiduciary duty by Dr. Graham that
"jeopardize the current and ongoing value of BBI, and
Dr. Uphold's equity interest in it." For example,
Dr. Uphold alleged that Dr. Graham and her son had taken
control of nearly all BBI's operations-preventing Dr.
Uphold from carrying out her responsibilities as a corporate
officer-and Dr. Uphold feared Dr. Graham would waste
BBI's assets. Dr. Uphold also alleged that Dr. Graham had
refused to participate in discovery, preventing Dr. Uphold
from obtaining the information needed to argue her case at a
hearing to determine the fair value of her shares.
Graham categorically denied Dr. Uphold's allegations of
misconduct and also argued that the court lacked authority to
appoint a custodian during the statutory stay of the
dissolution proceedings in effect once the fair value
determination was requested.
an evidentiary hearing, the court entered an order granting
Dr. Uphold's motion for a custodian. The court did not
make any findings of misconduct, waste, or risk of future
waste due to Dr. Graham's actions. Rather, the court
found that Dr. Graham had refused to allow Dr. Uphold access
to corporate records. The court explained,
Given the lack of transparency and the withholding of
information between the members of the corporation, it is
virtually impossible for the Court to determine whether a
custodian is necessary to manage the business and
affairs of the corporation. However, the Court has both
statutory and inherent authority to exercise its discretion
to appoint a custodian, if appropriate. In this case, the