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Fike v. DBSI, Inc.

Court of Appeals of Arizona, First Division

December 19, 2013

VOLNEY FIKE, IV, a single man, Plaintiff/Appellant,
v.
DBSI, INC., an Arizona corporation; DBSI REAL ESTATE PROPERTIES, INC., an Arizona limited liability company; CASH FLOW MANAGEMENT, INC., an Arizona corporation; JAVPAR 7TH AVENUE, LLC, an Arizona limited liability company; DEBRA STEWART DILLON aka Debra T. Stewart-Dillon aka Debra T. Dillon, an Arizona citizen; JOHN DILLON, an Arizona citizen; JAMES RANSCO II aka James J. Ransco aka James J. Ransco II, an Arizona citizen; and GEORGE HOWELL JR., an Arizona citizen, Defendants/Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Maricopa County No. CV2012-092803 The Honorable David M. Talamante, Judge

Cook & Price, PLC, Tempe By Jesse D. Cook Counsel for Plaintiff/Appellant

Dickinson Wright/Mariscal Weeks, Phoenix By D. Samuel Coffman, Scott A. Holcomb Counsel for Defendants/Appellees

Judge Randall M. Howe, presiding, delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Andrew W. Gould joined.

MEMORANDUM DECISION

HOWE, Judge:

¶1 Volney Fike appeals from the trial court's dismissal of his complaint. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY [1]

¶2 Fike was a shareholder and employee of DBSI Inc., DBSI Real Estate Properties, Javpar, and Cash Flow Management ("CFM"). DBSI Real Estate Properties, Javpar, and CFM are DBSI's related entities. All companies are Arizona corporations or limited liability companies with their principal place of business in Chandler, Arizona. Debra Dillon was the statutory agent for all of the companies. She was also the President, CEO, and director of DBSI, a managing member of DBSI Real Estate, the President and CEO of CFM, and a managing member of Javpar. John Dillon was DBSI's Secretary and one of its directors. James Ransco II was DBSI's Treasurer, one of its directors, a managing member of DBSI Real Estate, CFM's Secretary and one of its directors, and a managing member of Javpar. George Howell was a managing member and licensed real estate broker of DBSI Real Estate Properties.

¶3 In 2009, John Dillon told Fike that DBSI, DBSI Real Estate, Javpar, and CFM were failing and would soon be bankrupt. Debra Dillon, Ransco, and Howell knew of the falsity of these statements and failed to tell Fike the truth. Relying on this information, Fike negotiated a buyout agreement in which he agreed to leave DBSI's employ and surrender his stock in exchange for $400, 000.

¶4 Despite reaching a buyout agreement, Fike and DBSI disputed its terms and enforceability. To resolve the disputes, DBSI and Fike, each represented by counsel, entered into a Settlement Agreement. Under the Settlement Agreement, DBSI agreed to pay Fike an additional $1, 200, 000 in exchange for Fike's agreement to, among other things, remove certain pictures from his website and promise not to compete or to disclose confidential information. The Settlement Agreement also released and forever discharged DBSI, DBSI Real Estate, Javpar, and CFM, as well as DBSI's current and former employees, officers, and directors from any and all "claims, demands, causes of actions, or liability of any kind or character, known or unknown, arising or accruing through the date [of] this Agreement . . . ."

¶5 DBSI inadvertently failed to remove Fike as a signatory on one of its accounts, and in July 2010, Fike withdrew $156, 374.06 from that account. In response, on July 27, 2010, DBSI and DBSI Real Estate Properties sued Fike for conversion and breach of the Settlement Agreement. Fike's attorney accepted service of the action on August 27, and on September 1, informed Fike that he would file an answer and counterclaim. The attorney did not file a pleading, however, and the trial court entered a default judgment against Fike on September 30, 2010.

¶6 In October 2010, Fike discovered that DBSI, DBSI Real Estate Properties, Javpar, and CFM were not going bankrupt. Fike believed that the corporate officers of those companies had deliberately deceived him so that he would sell his interest for less than it was worth. He did not act on this information until June 29, 2011, however, when he moved for "Relief of Judgment or Order under Rule 60" seeking to set aside the default judgment. He alleged that the judgment should be set aside because DBSI and its managers committed fraud by misrepresenting the financial status of the company. DBSI opposed the motion and the trial court denied it. Fike did not appeal.

¶7 In May 2012, Fike filed the complaint that is the subject of this appeal against DBSI, DBSI Real Estate Properties, CFM, Javpar, Debra Dillon, John Dillon, James Ransco II, and George Howell Jr. (collectively "DBSI") alleging breach of contract of corporate bylaws and operating agreements, breach of the covenant of good faith and fair dealing, fraud, constructive fraud, securities fraud, negligent misrepresentation, unjust enrichment, aiding and abetting, and accounting. The defendants collectively moved to dismiss the complaint, arguing that Fike's claims were barred by (1) the Settlement Agreement; (2) the principle of ratification, because Fike ratified the Settlement Agreement ...


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