(Code 1981, §14-2-1330, enacted by Ga. L. 1988, p. 1070, § 1; Ga. L. 1989, p. 946, § 61; Ga. L. 1993, p. 1231, § 20; Ga. L. 2000, p. 1589, § 3.)
Editor's notes.- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
COMMENT
Source: Model Act, § 13.30. Section14-2-1330 retains the concept of judicial appraisal as the ultimate means of determining fair value. It thus follows the basic pattern of former § 14-2-251(g).
Subsection (a) requires the proceeding to be commenced by the corporation within 60 days after receiving a demand for payment under Section14-2-1327. Subsection (a) makes this time period critical; if the proceeding is not commenced within this period the corporation must pay the additional amounts demanded by the shareholders under Section14-2-1327. See the Comment to that section. Former law merely provided that dissenters may begin an action if the corporation failed to do so. See former § 14-2-251(g)(2). Each shareholder may sue directly for this amount, if necessary, and in an appropriate case may be entitled to charge the corporation with the costs of suit. See Section14-2-1331.
Subsections (b) and (c) provide that all demands for payment made under Section14-2-1327 are to be resolved in a single proceeding brought in the county where the corporation's registered office is located. All shareholders making Section14-2-1327 demands must be made parties, with service by publication authorized if necessary. Subsection (b) of the Model Act was amended to add the word "surviving" before "corporation" in the second sentence. This is intended to clarify the application of the dissenters' rights article - that it applies only to shareholders of Georgia corporations, but that their rights may be claims against a surviving corporation which is a foreign corporation. Subsection (c) was amended to restore language from former § 14-2-251(g)(3), which expressly provided that the action was quasi in rem against the shares.
Subsection (d) provides that appraisers may be appointed within the discretion of the court.
Subsection (e) provides that the final judgment establishes not only the fair value of the shares in the abstract but also determines how much each shareholder who made a Section 14-2-1327 demand should actually receive. The Model Act provision was amended to conform to previous Code changes in the Model Act, that eliminated a payment by the corporation before agreement is reached on the amount, and eliminated dissenters' rights for holders of after acquired shares.
Note to 1989 Amendment The 1989 amendment to subsection (b) added the phrase "which shall be a non-jury equitable valuation proceeding," to clarify the nature of the proceeding. Appraisal proceedings have traditionally been proceedings in equity, with appraisers appointed to assist the court in determining fair value.
Note to 1993 Amendment The 1993 amendment changed the notice by publication to be optional rather than mandatory, so that the corporation may choose to serve non-resident dissenting shareholders either by registered or certified mail or by publication, and no longer requires both methods.
Cross-References "Dissenter" defined, see § 14-2-1301. "Fair value" defined, see § 14-2-1301. "Interest" defined, see § 14-2-1301. "Person" defined, see § 14-2-140. "Principal office": defined, see § 14-2-140; designated in annual registration, see § 14-2-1622. "Proceeding" defined, see § 14-2-140. Registered office: designated in annual registration, see § 14-2-1622; required, see §§ 14-2-202 &14-2-501.
JUDICIAL DECISIONS
Failure to timely commence proceeding.
- Because the time for filing a petition for judicial appraisal is set by O.C.G.A. § 14-2-1330(a) and O.C.G.A. § 9-11-6(b) did not apply to permit a trial court to grant an extension of time before the commencement of such a legal action; thus, a corporation's failure to commence the proceeding within the statutory 60-day period prevented the court from having subject matter jurisdiction to reach the merits of the petition. Riddle-Bradley, Inc. v. Riddle, 217 Ga. App. 725, 459 S.E.2d 576 (1995).
Waiver of timeliness of dissenter's notice.
- Dissenter was in compliance with the requirements establishing dissenter's rights, even though the dissenter did not tender the stock certificate within the dissenters' rights time period. Just as O.C.G.A. § 14-2-1323 provides that a dissenter may waive the right to dissent by failing to comply, O.C.G.A. § 14-2-1330 provides that the corporation may waive its right to contest the dissenter's evaluation by not timely filing suit. VSI Enters., Inc. v. Edwards, 238 Ga. App. 369, 518 S.E.2d 765 (1999).
Fees and expenses not allowable.
- Because the action was not brought under this O.C.G.A. §§ 14-2-1330 and14-2-1331 were not applicable and the court erred in awarding attorney fees, attorney expenses, and expert witness fees and expenses to the dissenter. VSI Enters., Inc. v. Edwards, 238 Ga. App. 369, 518 S.E.2d 765 (1999).
RESEARCH REFERENCES
ALR.
- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.
Valuation of stock of dissenting stockholders in case of consolidation or merger of corporation, sale of its assets, or the like, 48 A.L.R.3d 430.