Barton v. RPost International CA2/5

Filed 1/20/15 Barton v. RPost International CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

KENNETH BARTON, B255535

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. YC061581) v.

RPOST INTERNATIONAL LIMITED et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Stuart M. Rice, Judge. Affirmed. McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle, Michael J. Kenney, for Plaintiff and Appellant. Ben-Zvi & Associates and Henry Ben-Zvi for Defendants and Respondents. __________________________

Plaintiff and appellant Kenneth Barton appeals from a postjudgment order in favor of defendants and respondents RPost International Limited (RIL), Zafar Khan and Terrance Tomkow denying a motion for attorney fees. On appeal, Barton contends (1) he was a party to an agreement with the defendants which contained an attorney fees provision, and (2) his tort claims constituted an action to enforce or interpret the agreement. We agree with the trial court that Barton’s action for conversion, fraud, breach of fiduciary duty and unfair competition was not an action to enforce or interpret the agreement. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In 1999, Tomkow, Barton and Khan founded the Nevada corporation RPost, Inc. In September 2000, the founders converted their loans to RPost into equity in the company. Barton was issued shares of RPost stock in exchange for forgiveness of loans he had made to the company. RPost was reorganized as a Bermuda corporation RPost International Limited (RIL). RIL’s directors adopted written resolutions allocating shares in the new corporation. The founders exchanged their common shares of RPost for common shares of RIL. By way of resolution on January 2, 2001, RIL’s directors cancelled the allotment of shares made in September 2000. The directors clarified the allotment of RIL shares to the founders in exchange for RPost share was as follows: 4,822,000 to Tomkow, 3,616,500 to Khan, and 3,616,500 to Barton. On May 30, 2001, and August 21, 2001, RIL’s directors adopted resolutions issuing additional shares of common stock to each of the founders in exchange for services rendered and cancellation of loans to the company. The cost of Barton’s shares was charged against Barton’s accrued salary and unpaid expenses. Barton suffered a stroke in September 2003. In May 2004, Symantec Corporation agreed to invest $1,100,000 for preferred shares of RIL. Symantec and RIL executed the “Series E Preferred Stock Purchase Agreement.” The “transaction agreements” were expressly defined to be the Series E