# Appendix — Armstrong v. Marathon Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3387%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1121 ## Text @D 90-1095 CASE NO. In Che Supreme Court of the United States OCTOBER TERM 1990 FRANCES A. ARMSTRONG, et al. Petitioners v. MARATHON OIL COMPANY Respondent ON WRIT OF CERTIORARI TO i THE SUPREME COURT OF OHIO APPENDIX TO PETITION FOR WRIT OF CERTIORARI CLYDE KAHRL Counsel of Record 118 E. Gambier St. Mt. Vernon, Ohio 43050 (614) 397-2443 JOHN F. KOSTYO Brimley, Kostvo & Elliott A Legal Projessional Association 320 §. Main St. Findlay, Ohio 45840 (419) 423-5700 COUNSEL FOR PETITIONERS APPENDIX TABLE OF CONTENTS Slip opinion of the Court of Appeals of Ohio Third Appellate District, Hancock County, Frances A. Armstrong, et al. v. Marathon Oil Co. decided March 29, 1990 Memorandum Decision of the Court of Common Pleas of Hancock County, Ohio, Frances A. Armstrong, et al. v. Marathon Oil Co. decided March 18, 1988. Memorandum Decision of the Court of Common Pleas of Hancock County, Ohio, Frances A. Armstrong, et al. v. Marathon Oil Co. decided January 8, 1988. Opinion and judgment of the Supreme Court of the State of Ohio, Armstrong v. Marathon Oil Co., decided September 25, 1987, reported at 32 Ohio St. 3d 397; 513 NE 2d 776. Slip opinion of the Court of Appeals of Ohio Third Appellate District, Hancock County, Frances A. Amnstrong, et al. v. Marathon Oil Co. decided January 14, 1986 Opinion and judgment of the United States Court of Appeals for the Sixth Circuit, Radol v. Thomas, decided September 13, 1985, Reported at 772 F.2d 244, 54 USLW 2184, Fed Sec.L.Rep. { 92,289 Denial of Motion for rehearing by the Ohio Supreme Court, Francis A. Armstrong, et al, v. Marathon Oil Company, dated November 4, 1987 Judgment Entry of the Court »f Common Pleas of Hancock County, Ohio, Frances A. Armsirong, et al. v. Marathon Oil Co, April 6, 1988 Dismissal of appeal by the Ohio Supreme Court, Francis A. Armstrong, et al, v. Marathon Oil Company, dated September 26, 1990, reported at 54 Ohio St. 3d 703 (1990). Text of Statute: Ohio Revised Code section 1701.85 (relief to dissenting shareholder) Page A-11 A-17 A-20 A-73 A-95 A-96 A-99 A-100 peioe i. Qsiniind A-1 FRANCIS A. ARMSTRONG, PLAINTIFF-APPELLANT, v. MARATHON OIL COMPANY, DEFENDANT-APPELLEE. CEDE & CO., PLAINTIFF-APPELLANT, v. MARATHON OIL COMPANY, DEFENDANT-APPELLEE. GORDON HODDINOTT, PLAINTIFF-APPELLANT, v. MARATHON OIL COMPANY, DEFENDANT-APPELLEE. DOUGLAS B. LITTLEWOOD, PLAINTIFF-APPELLANT, v. MARATHON OIL COMPANY, DEFENDANT-APPELLEE. DONALD M. WHITE, PLAINTIFF-APPELLANT, v. MARATHON OIL COMPANY, DEFENDANT-APPELLEE Case Nos. 5-88-11, 5-88-12, 5-88-13, 5-88-14, 5-88-15; Court of Appeals of Ohio, Third Appellate District, Hancock County Slip Opinion Date of Judgment entries: March 29, 1990 CHARACTER OF PROCEEDINGS: Civil Appeals from Common Pleas Court. JUDGMENTS: Judgments affirmed. EVANS, J. These cases are appealed from judgments of the Court of Common Pleas of Hancock County regarding the fair cash value and interest thereon to be paid to the shareholders of the Marathon Oil Company ( Marathon) dissenting from the 1982 merger of Marathon and the United States Steel Corporation(USX). Appellants, Francis A. Armstrong, et al., initiated this action in 1983 inthe Court of Common Pleas of Hancock County to pursue the appraisal remedy provided for shareholders dissenting from a fundamental corporate change (e.g.merger) by R.C. 1701.85. The trial court found that the stock market price quotation two (2) months prior to the vote approving the proposed merger was the controlling estimate of fair cash value. Both Marathon and Armstrong appealed the decision to the Ohio Supreme Court. In Armstrong v. Marathon (1987), 32 Ohio St. 3d 397, (paragraphs two and three of the syllabus), the Ohio Supreme Court considered the proper method of computation of fair cash value and found as follows: "2. Where facts presented to the trial court evidence a reasonably Suitable,active market of the particular corporate stock under consideration, and the actual market may be deemed to be sufficiently active in the trading of such stock, then the trial court A-2 should give suvsta.ial weight to such evidence.This actual market price would satisfy the willing seller-willing buyer test set forth in R.C. 1701.85, and would be the ‘fair cash value’ of such stock. ~ "3. If such active market trading of the stock in question is so found, the fair cash value is properly measured pursuant to R.C. 1701.85(C) as the stock market price of the shares as of the day prior to that on which the shareholders’ vote on the corporate transaction was taken excluding any appreciation or depreciation in this price resulting from the proposal submitted to the shareholders." The Ohio Supreme Court further considered the proper computation of interest payabie on such fair cash value in Armstrong, supra, (paragraph five of the syllabus), as follows: "5. Insofar as R.C. 1701.85 sets forth a ‘special proceeding within the meaning of section 2505.02 of the Revised Code,’ and provides for an interest rate based upon all equitable considerations, then the statutory rate set forth in R.C.1343.01(A) is not controlling. The rate should be determined from the written evidence submitted by the parties upon this issue." Pursuant to these findings the Ohio Supreme Court remanded the cause to the Court of Common Pleas of Hancock County for the resolution of two (2) narrow issues. The trial court was to determine, first, “what appreciation or depreciation, if any, existed due to the U.S. Steel proposal submitted to the Marathon shareholders" and, second, "what rate of interest, given various factors not limited by R.C. 1343.01(A), shall in the court's discretion be awarded the dissenting shareholders." Marathon filed a motion for rehearing which was denied on November 4, 1987.By judgment entry filed January 22, 1988, the trial court declared that the shareholders would not be permitted to engage in further discovery nor introduce additional expert testimony. Rather, the trial court permitted only the submission of briefs on the relevant issues with no reply briefs permitted. On March 18, 1988, the trial court rendered its decision finding that the market price of Marathon stock on the day prior to the approval of the merger was $ 75.75. The court then adjusted this sum to $ 68.43 to compensate for the appreciation of the stock resulting from the proposed merger. In regards to the rate of interest to be awarded the tria! court found 8.5% to be equitable. « — Itis from this judgment that appellants appeal submitting nine (9) assignments of error. Being substantially related, assignments of error one (1),two (2) and four (4) will be consolidated for review. enn nT A-3 "I. THE COMMON PLEAS COURT DENIED SHAREHOLDERS DUE PROCESS OF LAW BY DENYING THE SHAREHOLDERS THE RIGHT TO INTRODUCE EXPERT TESTIMONY UPON THE ECONOMIC THEORIES OF THE OHIO SUPREME COURT. "II. THE COMMON PLEAS COURT-: DENIED SHAREHOLDERS DUE PROCESS OF LAW BY DENYINGTHE SHAREHOLDERS THE RIGHT TO PRESENT FULL ARGUMENTS AND REPLY BRIEFS ONTHE ISSUE OF FAIR CASH VALUE. "III [sic) THE COMMON PLEAS COURT DENIED SHAREHOLDERS DUE PROCESS OF LAW BYINTERPRETING THE OHIO SUPREME COURT'S DECISION IN DIRECT CONTRADICTION TOARTICLE I SECTION 19 OF THE OHIO CONSTITUTION AND ARTICLE I SECTION 10 OF THEUNITED STATES CONSTITUTION PROHIBITING THE IMPAIRMENT OF CONTRACTS AS WELL ASARTICLE II SECTION 28 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OFTHE UNITED STATES CONSTITUTION PROHIBITING THE TAKING OF PROPERTY WITHOUT DUEPROCESS OF LAW." Appellants go to great lengths to demonstrate that "[bJecause the ‘contract clause’ and the ‘just compensation clause’ of the Constitution mandate that the state provide an appraisal remedy for dissenting shareholders, that appraisal standard must be interpreted so as to be within the Constitution".Appellants contend, therefore, that the trial court's refusal to allow further evidentiary hearings for the introduction of expert testimony and reply briefs constituted a deprivation of their constitutional rights of confrontation,cross-examination and due process. R.C. 1701.85(C) was promulgated to provide an accurate definition of fair cash value and to guide Ohio courts in the computation of such. R.C.1701.85(C) reads as follows: "(C) If the proposal was required to be submitted to the shareholders of the corporation, fair cash value as to those shareholders shall be determined as of the day prior to that one which the vote by the shareholders was taken, and, in the case of a merger pursuant to section 1701.80 or 1701.801 of the Revised Code, fair cash value as to shareholders of a constituent subsidiary corporation shall be determined as of the day before the adoption of the agreement of merger by the directors of the A-4 particular subsidiary corporation. The fair cash value of a share for the purposes of this section is the amount that a willing seller,under no compulsion to sell, would be willing to accept, and that a willing buyer, under no compulsion to purchase, would be willing to pay, but in no event shall the fair cash value exceed the amount specified in the demand of the particular shareholder. In_computing such _ fai Vv jation or (Emphasis added.) Therefore, the issue of what appreciation or depreciation the stock incurred as a result of the proposed merger was properly before the trial court in the initial proceeding which, as noted by the Ohio Supreme Court in Armstrong, supra, at 401, was "[a] full hearing on the issue of fair cash value,consisting of approximately three weeks of trial, * * * ". Accordingly, being a statutory element utilized in computing fair cash value, appellants had not only opportunity, but a responsibility to introduce expert testimony pertaining to the appreciation or depreciation in Marathon stock as a result of the proposed merger in the initial trial. In light of this, appellants, in support of their second assignment of error,contend that given the Ohio Supreme Court's adoption of various complicated economic theories unique to the computation of fair market value, expert testimony was required to properly address the newly formulated issues.Appellants argue that the trial court's refusal to permit additional testimony or reply briefs constituted a deprivation of their constitutional rights of confrontation, cross-examination and due process. Upon review of Justice Holmes’ opinion in Armstrong, supra, we are unable to discem the advancement of any uriique economic theory or interpretation of R.C.1701.85 by the Supreme Court. Quite the contrary, the Ohio Supreme Court cites both Vought v. Republic-Franklin Ins. Co. (1962), 117 Ohio App. 389; and Parten v. Pure Oil Co. (July 1, 1969), Franklin App. No. 9023, unreported, in interpreting R.C. 1701.85. The court adopted nothing new but rather reaffirmed and consolidated the existing Case law and statutory language. We agree, as argued by appellants, that the Supreme Court cites numerous academic articles in its opinion. However, these were not utilized with the intent of incorporating them into the computation of fair cash value, rather they were offered to aid in the explanation of the views maintained by other jurisdictions and as rationale for the less complicated valuation proceedings set forth in Vought, Parten and R.C. 1701.85. For example, the "efficient market theory" is offered only as rationale for the A-5 conclusion that the stock market quotation the day prior to the vote for the proposed merger is an accurate and desirable initial value from which to compute fair cash value. See, Armstrong, supra, at 410. Another example cited by appellants is the"hypothetical market value" computation. However, this theory was already embedded in Ohio law by statutory mandate in the "willing seller-willing buyer"test found in R.C. 1701.85. See, Armstrong, supra, at 408. We note also that the Ohio Supreme Court in Armstrong, supra, at 419, made it quite clear in their opinion that “ * * * the issues, pursuant to our determination of the first (valuation) issue above, have been considerably narrowed, and are resolvable without recourse to further evidentiary hearing." Appellants' assignments of error one (1), two (2) and four (4) are not well taken and are overruled. For their third assignment of error appellants submit the following: "Ill. THE COMMON PLEAS COURT ERRED AS A MATTER OF LAW BY INTERPRETING THE OHIOCORPORATE APPRAISAL STATUTE ACCORDING TO ECONOMIC THEORIES EXPRESSLY REJECTED BYTHE OHIO SUPREME COURT." We disagree. The Coun of Common Pleas of Hancock County did not interpret the Ohio corporate appraisal statute by any economic theories. Rather,the Ohio Supreme Court interpreted the statute and remanded the cause to the trial court with clear instructions to resolve two specific, narrow issues. We find that the trial court complied with the mandate of the Ohio Supreme Court in resolving the issues remanded and conducted no interpretation of R.C. 1701.85 whatsoever. Appellants’ assignment of error three (3) is not well taken and is overruled. For their fifth assignment-of error appellants submit the following: "V. THE COMMON PLEAS COURT DENIED SHAREHOLDERS DUE PROCESS OF LAW BY AWARDING ARATE OF INTEREST SELECTED SOLELY UPON REVIEW AND CONSIDERATION OF EVIDENCE NOTPROPERLY ADMITTED TO THE RECORD." In support of this assignment of error appellants argue that the trial court premised its decision, establishing an equitable rate of interest, upon evidence not properly admitted to the record. More specifically, appellants cite the trial court's consideration of various excerpts from the Wall Street Joumal included in appellee's memorandum to the trial court which were A -6 not properly authenticated. Further, appellants argue that the consideration of this evidence acted to deny them their constitutional rights of confrontation,cross-examination and due process because no reply memoranda nor additional evidentiary hearings were permitted. Evid. R. 902(6) provides as follows: "Extrinsic evidence of authenfieity as a condition precedent to admissibility is not required with respect to the following: Sitios "(6) Printed materials purporting to be newspapers and periodicals, including notices and advertisements contained therein." The Wall Street Journal is such a newspaper or periodical as to beself-authenticating. While there are further prerequisites to admissibility appellants raise only the issue of authenticity. Appellants further argue that the admission and consideration of such evidence absent an opportunity to confront and cross-examine constitutes a violation of appellants’ rights of confrontation, cross - examination and due process. As noted earlier, appellants had ample opportunity to introduce evidence and refute that offered by appellee in the initial trial. Furthermore, the trial court's findings neither cite nor indicate reliance upon the Wall Street Journal articles submitted by appellee. Upon noting that no further evidentiary hearings were necessary and that it was sufficient for the parties to submit written briefs upon the issue,the Ohio Supreme Court instructed the trial court to proceed "within its own discretion, [to] determine an interest rate ‘which the court considers equitable". In so doing, "(t]he trial court therefore should have considered other evidence as presented by the parties, including, but not limited to, the prevailing rate of interest for various kinds of loans, the prime rate over that period of time and any other such evidence". We find that the trial court complied with the mandate of the Ohio Supreme Court. Appellants’ fifth assignment of error is not well taken and is overruled. For their sixth assignment of error appellants submit the following: "VI. THE COMMON PLEAS COURT ABUSED ITS DISCRETION BY AWARDING A _ RATE OF INTERESTAGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279; A-7 Seasons Coal Co. v. Cleveland(1984), 16 Ohio St. 34 77. The weight to be given the evidence and the credibility of the witnesses are matters for the trier of fact, Seasons Coal Co., supra; State v. DeHass (1967), 10 Ohio St. 2d 230; Barton v. Ellis (1986),34 Ohio App. 3d 251, and any difference of opinion as to the weight and credibility of the evidence is not a legitimate ground for reversal. Seasons Coal Co., supra. In the case sub judice, we find the trial court's judgment on remand as to the correct rate of interest, to be supported by competent, credible evidence going to all the essential elements of the case. The record does not demonstrate the in depth rationale of the trial court in determining 8.5% to be the equitable rate of interest, however, the record does not illustrate any abuse of discretion on the part of the trial court. Appellants’ sixth assignment of error is not well taken and is overruled. For their seventh assignment of error appellants submit the following: “VII. THE COMMON PLEAS COURT DENIED SHAREHOLDERS DUE PROCESS OF LAW BY AWARDINGA RATE OF INTEREST UNRELATED TO THE INSTRUMENTS INVOLVED IN THE TRANSACTION,SUCH THAT WHEN THE IMPROPER INTEREST IS PAID UPON THE APPRAISED VALUE,THE EFFECT IS TO PUNISH SHAREHOLDERS FOR SEEKING THE CONSTITUTIONALLY MANDATEDREMEDY OF APPRAISAL." In support of this assignment of error appellants argue that the disparity in the final amounts received by the dissenting and assenting shareholders constitutes a denial of due process of law. When the Marathon shareholders who agreed to the merger cashed in their notes they received total compensation of $162.15 for each of their shares. According to the judgment of the trial court on remand the dissenting shareholders will receive $ 104 for each of their shares.Appellants contend that this disparity is attributable to an unreasonable interest rate awarded by the trial court. >a We disagree. The Ohio Supreme Court in Armstrong and R.C. 1701.85 both provide that in establishing the fair cash value to be paid dissenters, the court must take into account the appreciation or deprecation in the market value of the stock attributable to the proposed merger. The rationale underlying this principle is that, if the stock appreciates as a result of the merger, the dissenting shareholders should not be entitled to benefit from the increased value. Likewise, if the market value of the stock A-8 depreciates, the dissenting shareholders should not be penalized for the decreased value. On remand, the trial court found the value of the stock on the day prior to the approval of the merger to be $ 75.75. However, that sum was adjusted to $ 68.43 so as fot to allow the dissenters to benefit from the corporate transaction from which they disserited. Therefore, it is apparent that the application of R.C.1701.85 is likely to produce a fair cash value to be paid dissenting shareholders different from that feceived by assenting shareholders unless the fundamental corporate change is found to have had absolutely no effect on the market price of the stock, an unlikely possibility. For this court to find that this disparity constitutes a due process violation would in essence permit dissenting shareholders to shield themselves from any loss as a result of the depreciation of the stock and permit them to benefit from any appreciation if the stock, a “no lose" proposition. This is obviously not the extent of protection the legislature intended to provide for minority shareholderts dissenting from a fundamental corporate change. The Supren\e Court remanded the issue of the interest rate to be awarded appellants to the trial court with the instructions to distegatd R.C.1343.01(A) and, instead, consider the various factors introduced by the parties earlier in the initial trial to arrive at an equitable rate of interest. The record demonstrates that the trial court complied with the mandate of the Supreme Court. While we may not have fourid the equitable tate of interest to have been 8.5%, we ate nonetheless bound by the trial court's findings absent an abuse of discretion. C.E. Mortis Co., supra. Appellants seventh assignment of error is not well taken and is overruled. For their eighth assignment of error appellants submit the following: “Vill. THE COMMON PLEAS COURT PROCEEDED CONTRARY TO THE JUDGMENT OF THIS COURTIN 1986 AND THE SUPREME COURT IN 1987 AND DENIED SHAREHOLDERS DUE PROCESS OF LAWBY DENYING THE RIGHT TO ENGAGE IN DISCOVERY AND INTRODUCE EVIDENCE TO THOSESHAREHOLDERS WHO HAD PREVIOUSLY BEEN DENIED THE RIGHT TO PARTICIPATE IN THETRIAL OF 1984." « As previously noted, the Ohio Supreme Court did not anticipate any necessity for further evidentiaty hearings on any of the issues presented to the trial court on remand. In the initial trial appellants had a duty to present a complete case on behalf of those reptesented and were in fact invited by the trial court to introduce testimony as to all relevant A-9 theories of valuation and interest. The subsequent addition of additional dissenting shareholders to the class does not grant appellants the right to introduce further evidence whith they have already had not only an opportunity but also a duty to present. The Price Trust was the only group for which the Ohio Supreme Court provided for additional discovery and proceedings and they have settled their claims. Appellants’ eighth assignment of error is not well taken and is overruled. For their ninth assignment of error appellants submit the following: "IX. THE COMMON PLEAS COURT DENIED SHAREHOLDERS DUE PROCESS OF LAW BYESTABLISHING THE ENDING DATE FOR THE PAYMENT OF INTEREST AS THIRTY DAYS FROMTHE DATE OF THE JUDGMENT, THEREFORE PREJUDICING SHAREHOLDERS’ RIGHT OF APPEAL." In support of this assignment of error appellants argue that App. R. 3 allows an appellant thirty days within which to file a Notice of Appeal. The trial judge provided the shareholders only thirty (30) days to comply with his order.Therefore, if the shareholders‘chose to exercise their right to appeal,they were denied the right to continue to receive interest on the judgment. We disagree. As cited by Marathon, appellants entered into a stipulation in the trial court, filed June 23, 1988, providing essentially as follows: "Appellants Francis A. Armstrong, Cede & Co., Gordon T. Hoddinott, Douglas B.Littkewood, and Donald M. White have withdrawn their respective Motions for Stay of Order and Judgment Pending Appeal on the condition that Appellants’ standing to pursue these appeals, including appeal of the trial court's Judgment Entry of April 6, 1988, and to potentially obtain additional payments pursuant to future judgments will not be prejudiced; nor have Appellants waived the right to have these judgments altered on appeal by the surrender of shares and acceptance of payment of the amount due them in accordance with the trial court's Judgment Entry of April 6, 1988." As is apparent, appellants have filed their appeal, the merits of which we consider herein. Accordingly, we find that upon entering into such stipulation appellants waived their right to assign error to the trial court's entry to the extent that it allows interest for thirty (30) days. Further, being indirect compliance with R.C. 1701.85 we find no error on the part of the trial court absent this waiver. ——- iii Y Ly A-10 Appellants’ ninth assignment of error is not well taken and is overruled. In conclusion, appellants mischaracterize this appeal by asking this court to do indirectly what we cannot do directly; overrule the Ohio Supreme Court. This cause was remanded to the Court of Common Pleas of Hancock County for the resolution of two very specific issues. The Supreme Court instructed the trial court as to how to _ determine the initial fair cash value to be paid the dissenting shareholders and to adjust for depreciation or appreciation in the value attributable to the proposed merger.Secondly, the trial court was to consider the relevant factors in determining an equitable rate of prejudgment interest. In sum, we can glean no departure in the trial court's findings from the mandate of the Ohio Supreme Court and the record demonstrates no reversible error. Accordingly, appellant's nine (9) assignments of error are not well taken and are overruled. Having found no error prejudicial to the appellants herein, in any of the particulars assigned and argued, the judgments of the trial court are affirmed. Judgments affirmed. A-11 IN THE-COMMON PLEAS COURT OF HANCOCK COUNTY, OHIO Frances A. Armstrong, Plaintiff Case Nos. 82-342-M, 82-365-M, 82-379-M, 82-387-M, 82-400-M, vs. ; 82-402-M Marathon Oil Company MEMORANDUM Defendant Hebe Ee March 18, 1988 On September 25, 1987, the Supreme Court of Ohio remanded to this Court the above case. The remand gave clear and unequivocal instructions on what this Court was required to do. We are here now to Carry out the instructions of the remand. The Court has had the benefit of a protracted hearing before this Court in October, 1982. It was, as the Supreme Court points out at p. 401 of opinion (The full official citation of the Supreme Court opinion is Armstrong vs. Marathon Oil Co (1987), 32 Ohio St. 3d 397), a "full hearing”. At this hearing, the plaintiff dissenting shareholders (hereinafter collectively "Armstrong”) were permitted over the strenuous objection of defendant corporation to demonstrate their estimate of the fair cash value of the stock of defendant, Marathon Oil Co. (hereafter "Marathon"), basing their estimate of such fair cash value on the intrinsic value of the stock. At the same time, Marathon in their presentation, approached the case from the standpoint of the willing seller-willing buyer on the stock exchange and further upon the general market analysis of the oil industry. After the original hearing, this Court (and this Judge) ruled that the fair cash value of the stock of Marathon should be the price of the stock on the New York Stock Exchange as of January 6, 1982, which was $78 per share. This Court also established a rate of interest to be paid by Marathon. When this Court received the opinion of the Supreme Court reversing the Court of Appeals for the 3rd Appellate Judicial District, the Court noted that the Supreme Court, speaking through Justice Holmes, agreed that the fair cash value of the shares of Marathon should be determined from the market value of the stock when "the indicia of significant market trading is manifest" (p. 411 of Opinion) and if "a reasonably sufficient actual market does exist, there is no need to construct a hypothetical market." (p. 411). Thus, in determining the fair cash value of stock held by dissenting shareholders under the statute controlling these matters, (R.C. A-12 1701.85), the inquiry should first focus on the degree of sales activity on the major exchanges. That activity becomes, as Justice Holmes points out, a "benchmark for the willing seller-willing buyer standard" (P. 412). This Court did look to the major exchanges and found that a significant amount of sales activity in Marathon stock existed between willing sellers and willing buyers and held that the key date was January 6, 1982, and not March 10, 1982. In doing so, this Court determined the closing price of Marathon stock was $78 per share on January 6, 1982. The statute requires that the court is to look to the fair cash value of the day prior to that on which the shareholders vote on the corporate transaction was taken (Opinion, syllabus 3, p 397). Thus, this Court was in error in assigning a date of January 6, 1982, and should have established the correct date for the valuation of the stock. This date has been determined by the Ohio Supreme Coun as March 10, 1982. Pursuant to that determination this Court entered the date of March 10, 1982, as the date for the valuation of the stock and established the price of $75.75, the closing price of the stock on the New York Stock Exchange as the fair c*sn value of one share of Marathon stock. That evidence is clearly t. fore~the Court and the Supreme Court has so determined. But the Supreme Court then says, on p. 413 and its Opinion, ",..all factors concerned with, or reasonably affecting, any appreciation of the stock should have been reviewed and decided by the trial court. Accordingly, this matter is reversed and the cause is remanded to the trial court for the limited determination of what appreciation or depreciation, if any, existed due to the U.S. Steel proposal submitted to the Marathon shareholders. The Court must therefore grapple with the limited issue of the determination of appreciation or depreciation of the stock, if any, caused by the U.S. Steel proposal. Other than the interest issue, to be discussed later on, that is the sole question on the determination of fair cash value. Before attacking this complex problem, Armstrong suggests that there are grave constitutional issues here. This is not tenable. If it is true, and it is expressed quite clearly in State vs Perry (1967), 10 Ohio St. 2d 175, that in criminal matters (where counsel is required - not just urged or permitted, at every stage of the criminal proceedings) Constitutional issues cannot be considered in post-conviction proceedings under Section 2953.21 et seg., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel (See Syllabus 7), then how much more clear is it in civil matters that Constitutional issues cannot be raised where the civil litigants had an Opportunity to raise such Constitutional issues in the case in chief. There A-13 were absolutely no constraints placed upon the plaintiffs or any one of them in the presentation of their case in chief. The Court is further not impressed by the fact that the case is so old the firm that originally tried it is no longer in existence. Plaintiff's counsel still includes an original member of the plaintiff's team and plaintiff's subsequent counsel knew of the original record and must live with such record. Amnstrong urges that the due process of any one excluded by this Court in the original hearing which order of exclusion was reversed by the Supreme Court has been violated. The Supreme Court has addressed this issue with respect to the Price Trust (who are no longer in the case having settled and adjusted their differences with Marathon). That is still applicable with respect to these others. The Supreme Court points out on p. 419, "Also, the issues, pursuant to our determination of the first (valuation) issue above, have been considerably narrowed, and are resolvable without recourse to a further evidentiary hearing." True, Price Trust was given an opportunity to put forward any new evidence upon such issues as have not already been placed on the record but the only issue is if the stock was appreciated or depreciated and the amount of interest. Armstrong says that the new evidence that they would put forward is that The First Boston Report would have caused the stock of Marathon to go to $200 on the New York Stock Exchange. This is not the fact as their own witnesses have shown. Dr. Amling, a very sophisticated and talented investment consultant and author in the field, stated that the truth is that the market price of stocks is generally one-third that of book value. Further, the Radol case (Radol ¢ a vs Thomas, 772 F 2d 244, cert din 106 S Ct 3272) makes it clear that such things as The First Boston Report (or the Strong Report, made internally by Marathon to determine asset values of the various divisions and properties of Marathon, both of which were available prior to US Steel's tender) should not be admitted in a case involving an alleged (in simplistic terms) breach of a corporate fiduciary relation. But here, Armstrong did bring up not only the Strong Report, but the First Boston Report and John Herold's Reports of the oil industry. To bring on any other witnesses to show that these reports would cause the stock to rise to the values set forth in those reports is to fly in the face of Armstrong's own witnesses and is a not very disguised attempt to reinstitute the intrinsic evaluations procedure denied by the Supreme Court of Ohio. What difference would it make in real life? None. The evidence is before the Court. The issue here (exclusive of interest determination) is A-14 appreciation or depreciation of Marathon Oil Stock by the Mobil-U.S. Steel experience. Mobil Corporation (Mobil) on October 30, 1981, announced a hostile take-over bid for Marathon Oil Company at $85 per share. On October 29, 1981, the stock of Marathon Oil Company traded on the New York Stock Exchange (NYSE) for $63.75 per share. The Mobil announcement was greeted on the Monday following the announcement of the proposed take over with a flurry of trading activity. Obviously, an offer such as this -- $21.25 more than the October 29, 1981, closing price would be attractive -- and the price on the NYS1J went to almost $90 but within 20 calendar days thereafter fell to a little under $76. On November 20, 1981, the day after the U.S. Steel offer was made, the price of Marathon stock per share rose to $108. On January 7, 1982, the day after U.S. Steel purchased the shares pursuant to their tender the price was about $76 a share. Two things are instantly apparent: First: Notwithstanding the fact that the values established by The First Boston Report which was common knowledge to every one cognizant of the oil business, the price of Marathon did not reach $200 or even go near it; and, second: The U.S. Steel offer did appreciate Marathon's stock price. Yet it is noteworthy that in this period from October 30, 1981, to March 10, 1982, stocks in comparable oil companies, both domestic and international, declined! Only one company's stock went up! And that was ~arathon! And this, despite an "horrendous bear market", as one witness described it. The Standard & Poor Index (S & P) for International Oils (which include Exxon, Gulf, Mobil, Royal Dutch Shell, Standard of California, & Texaco) shows that in the first week of October, 1981, the index was 210.8. It dropped to 205 in the second week of October, rose to 220.4 in the first week of December, 1981 and then fell to 182 in the second week of March, 1982, after having been down to 176.8 in the first week of March, 1982. The S & P Domestic Oil Index (consisting of Atlantic-Richfield, Occidental, Gerry, Phillips, Shell (US), Standard of Indiana, Standard of Ohio, Sun, and Unocal) followed a similar path reaching its zenith in the second week of December, 1981, (357.3up from 327.2 in the fourth week of October) only to drop dramatically to 236.12 in the first week of March, 1982. So we want to know what is the effect of the US Steel offer on Marathon's prices on the NYSE? Obviously, the US Steel offer had a great effect. A-15 Dr. Robert Hamada testified at length not only on his studies of the Marathon stock but on the stock market in general. It is not important to talk of stock market efficiency in the sense of "informationally” or “value” efficient. We simply cannot say what the price Marathon would have commanded on March 10, 1982, or even today, had there been no Mobil or po US Steel tcnder. This Court would have felt better about Dr. Hamada's analysis if he had shown the Court a projection starting, say on October 30, 1980, and going to October 29, 1981. If the values had matched, that would have been impressive. Then an analysis from October 30, 1981, to March 10, 1982, would have been really impressive indeed! But certainly, Mobil, and particularly US Steel, caused an appreciation in the value of Marathon's stock and after comparing the activity of comparable stock in Exhibit M of the opinion of this Court, it is the opinion of this Court that the stock of Marathon Oil Company was appreciated to $68.43 per share. The Radol case (op cit) made it quite clear that a business judgment was made by Marathon's board of directors and such a judgment will not be disturbed absent fraud, bad faith, or abuse of discretion (Citing 12 0 Jur 3d §415, at 63-64 (1979); Ohio National Life Ins Co vs Struble, 82 Ohio App 840, appeal dismissed, 150 Ohio St 409 (1948), as well as RC 1701.59(c).) It is therefore unnecessary to address a sale of assets; restructuring of the company, stock splits, liquidations, and the like. Not one shred of evidence is present now nor has there ever been of fraud, bad faith, or abuse of discretion. Indeed, one of plaintiff's witnesses testified he tendered his Marathon stock for Mobil's $85 per share tender. No evidence of fraud here! Now we must address interest. In the earlier ruling the Court established the interest ai 8% per annum based essentially on the maximum rates of interest established by the Revised Code of Ohio (RC 1343.02(A)). This was determined to be in error by the Supreme Court for the very good reason that such determination did not consider other evidence including, but not limited to the prime rate, prevailing rate for various kinds of loans over the period, and any other such evidence. The only restraint being that of prohibition against usury. Ammstrong suggests an effective rate of interest of 17.2~%. This figure is suggested by the fact that the Supreme Coun set forth in its opinion that the Court adopt the prevailing rate of interest inasmuch as Armstrong gave Marathon a long term loan. The Court will note this argument but it must, under the Supreme Court's opinion at p 420; give consideration to other factors. A-16 Plaintiff Litthewood who presented a brief suggested an effective rate of interest of 17:77% based upon a formula suggested by Professor Brigham. Again, the Court must give consideration to other factors. Marathon suggested an interest rate which reflected the rate of dividend return per share, or 4.2%. This is a historic yield and must be considered along with other factors. Marathon also submitted the price of T-bills over the entire period of this case along with prime rates, Fannie Mae yields on 30 year mortgages, commercial paper, CD's, even Eurodollars and LIBOR (London Interbank Offered Rates). Considering all of these factors over the entire period of the protracted litigation the Court finds that the equitable interest rate is 8.5%. The Court therefore having determined the fair cash value of a share of Marathon Oil Stock to be $68.43, each plaintiff and each holder of outstanding stock of Marathon shall receive $68.43 for each share of stock owned plus interest thereon at the rate of 8.5% from March 11, 1982, to the date of »ayment or until 30 days after entry of judgment, which ever is earlier. Marathon may deduct from such sum as hereinbefore determined an amount already paid by Marathon heretofore. The costs of this matter will be split equally between Armstrong and Marathon with Marathon paying half and Armstrong the other half. Marathon to prepare entry. All parties to have exceptions. ROBERT D. WALKER, PRESIDING JUDGE A-17 IN THE COMMON PLEAS COURT OF HANCOCK COUNTY OHIO FRANCES A. ARMSTRONG, ET AL : Plaintiff - Case Nos. 82-379-M 82—342—-M,82—387- -M,82—365-M, vs. : 82—400—H, 82—401—M IMARATHON OIL COMPANY: MEMORANDUM Defendant January 8, 1988 The Court has been asked to continue and stay the proceedings in this cause by counsel for Frances A. Armsirong in 82-365-M. Specifically, the motion of plaintiff refers to the establishment by the Court of January 15, 1988, as the deadline for the identification of expert witnesses; February 15, 1988, as the deadline for completion of discovery; and March 14, 1988, for trial. Several reasons for the motion are set forth in the motion that will be addressed at the proper time. The Court has reviewed carefully the decision of the Ohio Supreme Court decided September 25, 1987 (32 Ohio St 3d. 397). In that opinion, the Supreme Court of Ohio, held at page 413, that the trial Court “should have first established the correct date for the valuation of the stock, i.e., March 10, 1982.” At this time, complying with that mandate, the Court will establish March 10, 1982, as the date for the valuation of the Marathon Oil Company stock (MRO, as it was then identified on the ~Big Board" - The New York Stock Exchange). Complying with that mandate, it is easy to establish that the price for Marathon Oil Company stock on that date was S75.75 per share at the bell, or the closing price of MRO. The Ohio Supreme Court's opinion at the same page (p 413), mandates this Court, and again copying direct from Justice Holmes’ opinion: “Second, all factors concemed with, or reasonably affecting, any appreciat.on of the stock should have been reviewed and decided by the trial Court.” To comply with this mandate, the Court has carefully read the entire transcript of the trial. Orly a few of the witneses address appreciation and depreciation. To permit any additional testimony would be counterproductive. When this Court declared that additional experts would be permitted, this Court was proceeding precipitiously and on the basis of the case in chief. Both parties were permited a wide range of inquiring to A-18 the consternation of both sides at the original case. And this Court proposed to extend that inquiry. Obviously, this is not necessary as the Supreme Court of Ohio remanded this cause “‘for the limited determination of what appreciation or depreciation, if any, existed due to the U.S. Steel proposal submitted to the Marathon shareholders”. This issue has been addressed by both parties extensively in the case in chief. This Court must only comply with the clear mandate. Accordingly, no new experts will be permitted either side but memoranda will be delivered to the Court by February 15, 1988, on this issue and arguments will be heard on March 14, 1988. No reply briefs or memoranda will be permitted. The matter involving Price Trust is now moot. But the Supreme Court did, at part V (page 420 of the opinion of Justice Holmes), note that the Court of Appeals was correct in holding that the statutory rate of interest was not controlling. The opinion says, "The trial court therefore should have considered other evidence as presented by the parties, including, but not limited to, the prevailing rate of interest for various kinds of loans, the average prime rate over that period of time and any other such evidence.~ There is but one constraint, that of the statutory ban on usury (R.C. 1343.01 et sec). To achieve that end therefore memoranda will be submitted by February 15, 1988, by both sides, without replies thereto, and arguments on that issue following the appreciation -depreciation issue on March 14, 1988. It is clear, therefore, that the Court is not disposed to delay this matter further. The problems set forth by the Armstrong counsel are real enough. This case has been going on a long time. It is an extremely costly matter for all concemed. But the opinion of the Ohio Supreme Court has been before us for three months now. The opinion of this Court has been before all parties for five years. The date set forth for argument has been known by all concemed since the meeting of October 30, 1987, with all counsel present. Even if present lead counsel find it necessary to resign, IMr. Kostyo, has becn involved in the cause since the outset. He lrepresents Cede & Co (82- 342-M), Mr. White (82-387-M), Mr. Littlkewood (82-400-M) and Mr. Hoddinott (82-401-M). Mr. Kostyo participated agressively in both direct examination and cross-examina.ion of the several witnesses. He must be considered as a knowledgeable person on the cases. The Court also recognizes that lawyers have no stock in trade but their advice and for this advice they are entitled to be paid but this Court has an obligation to all the citizens of this county and all the litigants appearing before to proceed as expediously as possible. A-19 There is a suggestion thai a writ of cersiorari may be sought from the Supreme Court of the United States. Notwithstanding, and until such writ is granted, this wholly state matter will proceed under the clear mandate of the Ohio Supreme Court for determination of the "fair cash value” of the Marathon Oil Company stock under the provisions of RC 1701.85. ROBERT D. WALKER, JUDGE A-20 THE SUPREME COURT OF OHIO ARMSTRONG et al., Appellees; Harrell, Appellee and Cross-Appellant, Vv ” MARATHON OIL COMPANY, Appellant. Decided Sept. 25, 1987. Nos. 86-399, 86-400 to 86-405. Reported at 32 Ohio St.3d 397, 513 N.E.2d 776, 56 U.S.L.W. 2219 Syllabus by the Court: 1. Under the terms of R.C. 1701.85, a shareholder who dissents from a merger or certain other enumerated corporate transactions is granted the right to seek payment of the “fair cash value” of the shares of the corporation. That section defines “fair cash value” as the amount a willing seller, under no compulsion to sell, would be willing to accept, and a willing buyer, under no compulsion to purchase, would be willing to pay for a share of stock of the corporation to be merged. 2. Where facts presented to the trial court evidence a reasonably suitable, active market of the particular corporate stock under consideration, and the actual market may be deemed to be sufficiently active in the trading of such stock, then the trial court should give substantial weight to such evidence. This actual market price would satisfy the willing seller-willing buyer test set forth in R.C. 1701.85, and would be the “fair cash value” of such stock. 3. If such active market trading of the stock in question is so found, the fair cash value is properly measured pursuant to R.C. 1701.85(C) as the stock market price of the shares as of the day prior to that on which the shareholders’ vote on the corporate transaction was taken, excluding any appreciation or depreciation in that price resulting from the proposal submitted to the shareholders. 4. The requirement in R.C. 1701.85(B) that “(t)he court shall thereupon make a finding as to the fair cash value of a share” dispenses with the requirement of a jury trial in such special statutory proceeding. 5. Insofar as R.C. 1701.85 sets forth “a special proceeding within the meaning of section 2505.02 of the Revised Code,” and provides for an interest rate based upon all equitable considerations, then the statutory rate ———— A-21 set forth in R.C. 1343.01(A) is not controlling. The rate should be determined from the written evidence submitted by the parties upon this issue. 6. A trial court may not order parties remaining in an action to comply with the discovery requests of a party dismissed with prejudice from the action. 7. When a cause of action is reinstated by a court of appeals and remanded for further proceedings to the trial court, such reinstatement is in statu quo ante, and the lower court is required to proceed from the point at which the error occurred. Decided Sept. 25, 1987. The within consolidated cases involve the appeal of issues arising out of the two-step merger betweeti Marathon Petroleum Company (“Marathon”) and a subsidiary of the United States Stecl Corporation (“U.S. Steel”). This merger occasioned the filing of a series of lawsuits by dissenting shareholders of Marathon in the Common Pleas Court of Hancock County primarily seeking a determination of “fair cash value” for their shares of stock pursuant to R.C. 1701.85. The major issue presented upon appeal by Marathon is whether the trial court or the court of appeals utilized the correct method of determining “fair cash value” of the dissenters’ shares. Another issue presented upon this appeal is the eligibility of certain Marathon shareholders to participate in the proceedings to determine “fair cash value” based upon whether they had complied with R.C. 1701.85(A) providing for the notice to be given to the corporation of thei decision to demand fair cash value. The trial court determined that improper notice had been given by some three hundred seventy-one stockholders in that their demand, as filed by Frances Armstrong, had not properly evidenced Armnstrong’s agency. The court of appeals reversed. The third issue presented is whether the court of appeals erred by holding that the trial court had abused its discretion in denying motions for a continuance of the scheduled trial on the merits to permit Price Trust, which represented certain dissenting shareholders, to engage in pretrial discovery upon the issue of fair cash value. The remaining issues, which shall be explained more fully, are whether the proceeding under R.C. 1701.85 allows a jury trial or . joinder of other causes of action and whether the trial court improperly determined the rate of prejudgment interest. A+22 The issues which we must resolve ate based upon the following facts. In 1981, the officers and management of Marathon recognized that the company might be a target for a “takeover” in that Marathon stock was selling on the New York Stock Excharige at a price somewhat lower than the market value of the compartiy’s assets. Accofdingly, Marathon obtained two valuations, one by First Boston Corporation, a New York ifvestment banking firm, afid the other by John F. Strong, the assistafit to the president of Marathon. The First Boston report ifidicated a per-share value of Marathon stock of between $188 arid $225, whereas the Strong report indicated a per-share value of Marathon stock of betweefi $276 and $323. Both of these reports wefe predicated upon the fet equity value of Marathon, that is, the value of Marathon assets less liabilities. On October 30, 1981, Mobil Corporation announced a tender offer to purchase up to forty million shafes (approximately sixty-seven percent) of Mafathon stock at $85 pet share. Mobil indicated that, if successful in acquifing at least thirty million shafes (approximately fifty- one percent of outstanding stock), it would seek to acquite the remaining shares through an exchange of merger offer, by which shareholders would receive securities valued by Mobil at $85 per share. On the following day, Marathons boatd of ditectots called an emergency session. Thetein, it was determined that the Mobil offer was grossly inadequate and fot in the best ifiterest of Marathon orf its shareholders. The board consequently authorized Maratho.i's officers to take the appropriate steps necessary to block Mobil'’s takeover attempt, including (1) sending letters to Marathon shareholders urging them not to tender their shares to Mobil; (2) filing an action seeking to enjoin the Mobil takeover, (3) initiation of efforts to secure a “white knight,” i.¢., someone who could extend a friendly takeover tefider, anid (4) conisideration of a complete of partial liquidation of Marathon. On November 1, 1981, Marathon filed an action ini the United States District Court alleginig that the Mobil tender offer violated various federal antitrust regulations, and sought to enjoin the plarined takeover by Mobil. Marathon’s action was eventually successful. The aid of First Boston was enlisted to search for other companies which might be interested in acquiring Matathon at a price substantially higher than the Mobil tender offer. This search for a “white knight” successfully culminated in the announcement, on November 19, 1981, that Marathon and U.S. Steel had entered into a merger agreement. Under the terms of the merger proposal, U.S. Steel would extend a tender offer for A-23 fifty-one percent of the outstanding stock of Marathon at a price of $125 per share. This was to be followed by a merger proposal in which each remaining Marathon shareholder would receive a $100 face value twelve- year bond, paying a guaranteed twelve and one-half percent interest, for each remaining share of Marathon stock. In acting favorably upon the U.S. Steel offer, it appears from the evidence that the Marathon board of directors relied upon the opinion of First Boston, its financial advisor. It was First Boston’s view that the U.S. Steel offer of $125 per share for fifty-one percent of the stock combined, with the issuance of the notes for the balance, would have a “blended value” of $106 per share. Further, it appears that upon First Boston’s advice, the Marathon board determined that such a price was fair to Marathon shareholders and, upon advice of counsel, that acceptance of such an offer would be a reasonable exercise of business judgment. By December 4, 1981, approximately 91.4 percent of Marathon shares had been tendered to U.S. Steel. By way of contrast, only approximately forty-seven percent of Marathon shares had been tendered to Mobil in response to its tender offer at $85 per share. As part of the U.S. Steel offer, it received an option to purchase ten million authorized, but unissued, shares of Marathon for $90 per share. It also received an option to purchase one of Marathon’s largest assets, a forty-eight percent interest in the Yates oilfield for 2.8 billion dollars. Not only was there then litigation in the federal court with respect to Mobil’s tender offer, but an action was also commenced in federal court with respect to the U.S. Steel tender offer, particularly the granting of the above options. On December 23, 1981, the United States Court of Appeals for the Sixth Circuit affirmed a district court’s ruling that the two options granted U.S. Steel were illegal, manipulative and intended to discourage other tender offers for Marathon stock. It ordered U.S. Steel to relinquish both options. Upon remand, which occurred the next day, the district court extended the date by which shareholders could withdraw their acceptance of the U.S. Steel offer until January 6, 1982. However, the court made no change of the December 4, 1981 proration date, that is, the date by which Marathon shareholders had to tender their shares to U.S. Steel. Thereafter, on January 7, 1982, U.S. Steel purchased approximately fifty-one percent of Marathon’s stock, consisting of approximately thirty million of Marathon’s outstanding shares, by accepting the tenders of more than ninety percent of the Marathon stock on a a A-24 a prorated basis. In the interim, Mobil announced that if the U.S. Steel offer, including the options, were ruled illegal, Mobil would increase its tender offer to $126 per share. Additionally, Gulf Oil Company then proposed to discuss a merger with Marathon at a price of approximately $120 per share, but no meaningful negotiations ever took place. Subsequently, on March 11, 1982, the second step of the acquisition of Marathon by U.S. Steel was completed by approval of the merger by shareholders owning more than two-thirds of all Marathon shares, including the fifty-one percent now owned by U.S. Steel. Frances A. Armstrong, an owner of two liundred shares of Marathon stock, together with a number of shareholders consolidated into the so-called Marathon Shareholders Committee, and various additional shareholders, filed petitions ‘n the Hancock County Common Pleas Court. Their claim was essentially founded upon R.C. 1701.85 and was for the purpose of seeking a determination and award of the “fair cash value” of their stock. In the initial phase of the proceedings, the trial court determined that approximately four hundred plaintiffs were eligible under the statute to have the fair cash value determined. Other shareholders were deemed by the trial court to be ineligible to participate in the proceeding. Among these were certain plaintiffs for whom Armstrong sought to demand fair cash value. The trial court determined that Armstrong had failed to include with her demand letter the evidence of authority to act on their behalf as the court felt was required by Klein v. United Theaters Co. (1947), 148 Ohio St. 306, 35 0.0. 298, 74 N.E.2d 319. On this point, the court of appeals reversed. In another facet of these cases, Lillian Werk Price, as trustee for a number of other Marathon shareholders, had been ruled ineligible by the trial court to participate in the fair cash value proceeding. This determination was reversed by the court of appeals. Price, upon remand, twice moved the trial court for a continuance in order to utilize the extensive discovery of the other plaintiffs in the preparation for trial. The trial court, exercising its discretion in the matter, denied the motion for continuance. The court of appeals reversed the trial court on this issue. Dorothy M. Harrell, proceeding pro se, sought to obtain a jury trial under the R.C. 1701.85 proceeding. Also, Harrell sought to join a number of other causes of action into the proceedings below. Moreover, at trial she sought to present evidence conceming the appropriate amount of interest which ought to be awarded. The trial court refused joinder as to A-25 these other causes of action and denied a jury trial. It ruled that the appropriate rate of interest was no more than eight percent pursuant to R.C. 1343.01(A). The court of appeals upheld the trial court on the jury trial and joinder issues, but reversed on the interest issue, which, it was determined, should have been based upon the evidence offered by the parties. Although R.C. 1701.85(B) provides that the trial court “may appoint One or more persons as appraisers to receive evidence and to recommend a decision on the amount of the fair cash value,” the trial judge here recognized that the statute gave him final responsibility to make a finding as to the fair cash value of the stock. He consequently opted not to appoint appraisers in these cases. This was, of course, fully within the trial court’s discretion under the statute and is not an issue upon appeal. A full hearing on the issue of fair cash value, consisting of approximately three weeks of trial, was conducted by the trial court. Evidence was adduced by the various dissenting shareholders conceming their estimate of the fair cash value of their shares of stock, based upon the intrinsic value of the stock. Additionally, evidence of stock value, primarily based upon the willing seller-willing buyer test upon the stock exchange, and upon general market analyses of the oil industry, was addressed by appellant Marathon. Upon conclusion of the hearings, the trial court rendered an in- depth decision. It basically concluded that the willing buyer-willing seller language of R.C. 1701.85 meant market value of a single share of stock rather than an intrinsic value. The court also found that, under the circumstances of this case, the stock market price provides the controlling evidence. However, instead of using the market price of March 10, 1982, which was the day prior to the vote of the shareholders, and adjusting the price to avoid the effect of the pending merger as called for by the statute, the trial court adopted the market closing price of the stock on January 6, 1982, which was $78 per share, as reflecting fair cash value as of March 10, 1982. The dissenting shareholders appealed, attacking the standard utilized by the trial court in determining fair cash value. Marathon cross - appealed challenging the trial court’s use of January 6, 1982, rather than March 10, 1982, as the date to determine the fair cash price as adjusted. The court of appeals reversed the trial court as to the dissenting shareholders’ appeal as well as Marathon’s cross-appeal. This cause is A-26 now before the court pursuant to the allowance of motions to certify the record. Ulmer, Berne, Laronge, Glickman & Curtis, Marvin L. Karp and Stephen A. Markus, Cleveland, for appellees Armstrong et al. Weasel & Brimley and John F. Kostyo, Findlay, for appellee White. Benesch, Friedlander, Coplan & Aronoff, John J. Duffey and Jack Gregg Haught, Columbus, for appellee Price, Trustee. Dorothy M. Harrell, pro se. Jones, Day, Reavis & Pogue, John L. Strauch, John M. Newman, Jr., Robert R. Weller, Susan J. Becker, Cleveland, Rakestraw & Rakestraw and Russell E. Rakestraw, Findlay, for appellant. Murray & Murray Co., L.P.A., Dennis E. Murray and Kirk J. Delli Bovi, Sandusky, urging reversal for amici curiae, Charles Nickels et al. HOLMES, Justice. I We deal here with the difficult subject of the manner and criteria for the determination of the amount to be paid to a dissenting shareholder of a corporation which is to be merged into, or whose assets are to be sold to, an acquiring corporation. More specifically, we are asked to construe the Ohio statutes which provide for the compensation payable to such dissenting shareholders, and the case law which has construed such statutes. Before addressing the issues presented for resolution, we will first set forth some of the background on the subject, the pertinent portions of the current, applicable sections of law, and the legislative history of Ohio’s and other states’ statutes. We will also consider this court’s case law as well as the determinations of other Ohio courts on the subject. In considering the background of the statute at issue, we begin by noting that early corporations more closely resembled the ordinary partnership of today, in that the shareholder usually had a personal financial investment and, more importantly, played a superintending role in the business to protect his investment. Consequently, the courts of that time viewed the relationship between shareholder and corporation as a vesied property right, and the vote of a shareholder owning a single share of stock was sufficient, by the common-law rule, to block any merger, sale of major assets or other organic change. 1 Absolute unanimity of all 1. 12B Fletcher, Cyclopedia of the Law of Private Corporations (1984) 342, Section 5906.1; 2 Hornstein, Corporation Law & Practice (1959) 168, Section 629; Levy, Rights of Dissenting Shareholders to Appraisal and Payment (1930), 15 Cornell L.Q. 420; Lattin, Remedies of Dissenting Stockholders under Appraisal A-27 shareholders was required to effect any fundamental corporate change. The basic theory underlying such rule was that the stockholder had purchased a portion of a going concem, and his approval was necessary to divest him of that which he had purchased. Tremendous expansion of commerce in the latter part of the nineteenth century created the need for larger, more comple, financial structures. As corporations began to merge and otherwise reorganize to meet this need, they encountered the barrier of the minority shareholder backed by the common-law requirement of unanimity. See, e.g., Mason v. Pewabic Mining Co. (1890), 133 U.S. 50, 10 S.Ct. 224, 33 L.Ed. 524 (shareholder objection destroyed the company); In re Timmis (1910), 200 N.Y. 177, 181, 93 N.E. 522, 523 (purchase of a single share to create a strike suit). This rule was, of course, much too restrictive to meet the needs of a growing, modem economy and, thus, corporations began to circumvent this rule by giving dissenters cash payments. In order to prevent excessive costs from upsetting the transaction, courts began to reduce the effect of the rule of unanimity by granting dissenting shareholders the right to recover the cash value of their shares. See, e.g., Lauman v. Lebanon Valley RR. Co. (1858), 30 Pa. 42. Legislators as well as courts came to view the common-law rule as an obsolete impairment of beneficial corporate interests, or as negating the rights of the majority to exercise control over the corporate affairs to which ownership of their shares entitled them. 2 Ultimately, all states have provided by statute that unanimity is no longer a requisite to approval by the shareholders of such fundamental changes in the corporate structure as merger or sale of assets. See, e.g., Note, Valuation of Dissenters’ Stock Under Appraisal Statutes (1966), 79 Harv.L.Rev. 1453; Note, Corporation Law— Dissenting Stockholder’s Right of Appraisal— Determination of Value (1953), 28 N.Y. U.L.Rev. 1021; Note, The Statutes (1931), 45 Harv.L.Rev. 233, 236-237; Weiss, The Law of Take Out Mergers: A Historical Perspective (1981), 56 N.Y.U.L.Rev. 624, 624-628. 2. See fn. 1, supra. See, also, Horwitz, The Transformation in the Conception of Property in American Law, 1780-1860 (1973), 40 U.Chi.L.Rev. 248; Hills, Consolidation of Corporations by Sale of Assets and Distribution of Shares (1931), 19 Calif.L.Rev. 349; Lattin, Equitable Limitations on Statutory or Charter Powers Given to Majority Stockholders (1932), 30 Mich.L.Rev. 645, 646; Comment, Statutory Merger and Consolidation of Corporations (1935), 45 Yale L.J. 105, 112-113; Small v. Sullivan (1927), 245 N.Y. 343, 357, 157 NE. 261, 265 (Lehman, J., dissenting); Alpren v. Consolidated Edison Co. (Sup.Ct.1938), 168 Misc. 381, 5 N.Y.S.2d 254. A-28 Dissenting Shareholder’s Appraisal Remedy (1977), 30 Okla.L.Rev. 629, 630. To provide compensation for those shareholders who dissented from the merger, sale of assets, or change in structure decision by the majority, legislative enactments were made across the country. The nearly universal remedy, triggered in various ways, was to provide for an appraisal of the dissenting shareholders’ stock, and for the corporation to purchase such stock at the appraised price. See statutes analyzed in Note, A Reconsideration of the Stock Market Exception to the Dissenting Shareholder’s Right of Appraisal (1976), 74 Mich.L.Rev. 1023, fn. 2. Some statutes provide that the court shall appoint a number of appraisers to determine the value of the dissenting shares, subject to limited review by the court and based upon the reasonableness of the appraisal report. “ Other statutes provide that the trial court has discretion in the appointment of appraisers but must, after hearing all the evidence, inclusive of that of the experts, make its own determination of the value of the stock of the dissenting shareholders. 4 Ohio’s statute contains this approach currently, although it should be noted that the predecessor section of law, G.C. 8623-72, provided for a mandatory appointment of - appraisers. Furthermore, many jurisdictions, like Ohio, value the stock as of the day prior to the shareholders’ vote approving the action. See, e.g., Fla.Stat.Ann. Section 607. 247(3) (1977); Mich.Comp.Laws Ann. Section 450.1768 (1987 Cum.Supp.); Pa.Stat.Ann. Title 15, Section i515(B) (Purdon, 1987 Cum.Supp.). A greater divergence of practice exists among states when the issue becomes one of ascertaining the value of the dissenters’ shareholdings. This becomes obvious upon an initial perusal of the statutes themselves and their terms which describe the value to be ascertained. Some merely use the term “value,” 5 while others utilize “fair value,” © or 3. See, e.g., Nev.Rev.Stat. Section 78.510(1) (1986). 4 See, e.g., Ala.Code Title 10, Section 10-2A-163 (1975); Idaho Code Section 30-1-81 (1980); N.H.Rev.Stat.Ann. Section 293-A:82 (1986 Cum.Supp.); Vt.Stat.Ann. Title 11, Section 2004(e) (1984); Wis.Stat.Ann. Section 180.72(6) (1986 Supp.). See, also, Del.Code Ann. Title 8, Section 262(c) (1983) (court hears exceptions to appraiser’s report). 5, See, e.g., Del.Code Ann. Title 8, Section 262(f) (1983) (used interchangeably with “fair value”); Kan.Stat.Ann. Section 17-6712 (1986 Cum.Supp.). 6 See, e.g., Ala.Code Title 10, Section 10-2A-163 (1975); Fla.Stat.Ann. Section 607.247 (1977); Idaho Code Section 30-1-81 (1980); Ark.Stat.Ann. Section 64- —— A-29 “fair cash value.” 7 Moreover, the statutes vary according to what is meant by such terms and the analytical approach required to obtain the final valuation for the stock. A number define their statutory term as referring to the stock market value,® when the stock is traded upon a national securities exchange? or, more specifically, traded upon the New York Stock Exchange. Otherwise, an appraisal is required. 707 (1980); Iowa Code Ann. Section 496A.78 (1962); Minn.Stat.Ann. Section 302A.473 (1985); Me.Rev.Stat.Ann. Title 13-A, Section 909(1) (1981); N.H.Rev.Stat.Ann. Section 293-A:82 (1986); Vt.Stat.Ann. Title 11, Section 2004(e) (1984); Wis.Stat.Ann. Section 180.72(6) (1986 Supp.); ALI-ABA Model Bus. Corp. Act Section 81 (1969); Rev. Model Business Corp. Act Section 13.01 (1984). 7. See, e.g., Nev.Rev.Stat. Section 78-510 (1986); R.C. 1701.85. See, also, Henn & Alexander, Corporations (3 Ed.1983) 1002, Section 349. 8. See cases collected in Note, A Reconsideration of the Stock Market Exception to the Dissenting Shareholder’s Right of Appraisal (1976), 74 Mich.L.Rev. 1023, 1024, fn. 4. 9. In Section 80b-2(a), Title 15, U.S.Code, the term “national securities exchange” is defined as a securities exchange registered as a national securities exchange under the Securities Exchange Act of 1934. Any exchange may be registered with the Securities and Exchange Commission as a national securities exchange by filing a registration statement with the Commissioner. Section 78f(a), Title 15, U.S. Code. Most stock-market exception statutes require that the stock be listed on a national securities exchange in order to invoke the exception. See, e.g., Ariz.Rev.Stat.Ann. Section 10-O80(C) (1977); Deering’s Cal.Corp.Code Ann. Section 1300(b)(1) (1987 Supp.); Del.Code Ann. Title 8, Section 262(b) (1983); Fla.Stat.Ann. Section 607.244 (1987 Cum.Supp.); Ga.Code Ann. Section 22-1201 (1987 Cum.Supp.); Iowa Code Ann. Section 496A.77 (1987 Cum.Supp.); Kan.Stat.Ann. Section 17.6712(k) (1974); Md.Ann.Code, Corporations & Associations, Section 3-202(C) (1986 Cum.Supp.); Mich.Comp.Laws Ann. Section 450.1762 (1973); N.J.Stat.Ann.’ Section 14A:1.. i (1987 Cum.Supp.); R.I].Gen.Laws Ann. Section 7-1.1-73 (1985); Va.Code Ann. Section 13.1-730(C) (1987 Cum.Supp.); Wis.Stat.Ann. Section 180.725 (1986 Supp.). Statutes in Maine and Tennessee state that the exception applies to stocks traded on “ ‘national securities exchange’ as defined under the Securities Exchange Act of 1934, as amended” or “Registered with the Securities and Exchange Commission pursuant to section 12(g) of * * * the Securities Exchange Act of 1934.” Me.Rev.Stat.Ann. Title 13-A, Section 908(4)(B) (1981); Tenn.Code Ann. Sections . 48-1-909(c) (1984). Instead of using “national securities exchange,” Georgia, Pennsylvania and Utah specify the New York Stock Exchange or the American Stock Exchange, Ga.Code Ann. Section 22-1201 (1987 Cum.Supp.); Pa.Stat.Ann. Title 15, Section 1515(L) (Purdon, 1987 Cum.Supp.); Utah Code Ann. Section 16- 10-75 (1987). nati aaa A-30 Many states depend upon an appraisal proceeding, either by statute or through an alternative equitable proceeding. Such a proceeding attempts to ascertain the value of the dissenting shareholders’ stock by analysis of: intrinsic value; net asset value; going concer value; liquidation value; net equity value; earnings value of the stock or dividends prospects; the nature of the enterprise and its relative position within the particular industry; post-merger gains or synergistic gain; tax benefits to all concemed; rescission and/or equitable concems. A state may utilize all of the above factors, at least in theory, or some lesser combination of them. 10 Quite often courts rely upon three principal elements in arriving at the value of the shares of dissenting shareholders, i.e., net asset value, market price of the stock on the New York Stock Exchange and the eamings value (future) of the corporation. This method is commonly referred to as the “Delaware Block” analysis and allows a trial court to weigh each element by imposing a multiplier and then rendering an average value. See In re General Realty & Utilities Corp. (1947), 29 Del.Ch. 480, 52 A.2d 6; Weinberger v. UOP, Inc. (Del.1983), 457 A.2d 701; Appraisal Remedy, supra (38 Sw.L.J.), at 779, fn. 10. All of these approaches to a determination of value of the shares of the dissenting shareholders may be appropriate under the specific requirements of a state statute, giving consideration to the salient facts surrounding a given corporate entity. In determining the present case, we must look to Ohio’s statutory procedures for determining the amount to be paid to dissenting shareholders. In the light of such statutes we shall analyze the specific circumstances of this corporate merger, including the point in time of such merger, and the evidence or indicia of the value of such stock which existed at that time. Also, we must look to this court’s interpretation of such law, and any activity by the General Assembly in this specific area of the law. The primary statute with which we are concemed is R.C. 1701.85. The predecessor section of law, G.C. 8623-72, provided, as does the current section, for the payment of the fair cash value to a shareholder for his shares as of the day prior to the vote of the shareholders. It also required, as does the current section, that any 10. See, e.g., Coleman, Appraisal Remedy in Corporate Freeze-Outs: Questions of Valuation and Exclusivity (1984), 38 Sw.L.J. 775; Brudney & Chireistein, Fair Shares in Corporate Mergers and Takeovers (1974), 88 Harv.L.Rev. 297; Brudney & Chirelstein, A Restatement of Corporate Freezeouts (1978), 87 Yale L.J. 1354; but, cf., Toms, Compensating Shareholders Frozen Out in Two-Step Mergers (1978), 78 Colum.L.Rev. 548, 552, fn. 12. il A-31 appreciation or depreciation in consequence of such action must be excluded from the determination of the fair cash value of the stock. !! 11. RC. 1701.85 provides: “(A)(1) A shareholder of a domestic corporation is entitled to relief as a dissenting shareholder in respect of the proposals in sections 1701.74, 1701.76, and 1701.84 of the Revised Code, only in compliance with this section. “(2) If the proposal must be submitted to the shareholders of the corporation involved, the dissenting shareholder shall be a record holder of the shares of the corporation as to which he seeks relief as of the date fixed for the determination of shareholders entitled to notice of a meeting of the shareholders at which the proposal is to be submitted, and such shares shall not have been voted in favor of the proposal. Not later than ten days after the date on which the vote on such proposal was taken at the meeting of the shareholders, the shareholder shall deliver to the corporation a written demand for payment to him of the fair cash value of the shares as to which he seeks relief, stating his address, the number and class of such shares, and the amount claimed by him as the fair cash value of the shares. “ * * * “(B) Unless the corporation and the dissenting shareholder shall have come to an agreement on the fair cash value per share of the shares as to which he seeks relief, the shareholder or the corporation, which in case of a merger or consolidation may be the surviving or the new corporation, within three months after the service of the demand by the shareholder, may file a complaint in the court of common pleas of the county in which the principal office of the corporation which issued such shares is located, or was located at the time when the proposal was adopted by the shareholders of the corporation, or, if the proposal was not required to be submitted to the shareholders, was approved by the directors. * * * On the day fixed for the hearing on the complaint or any adjournment of it, the court shall determine from the complaint and from such evidence as is submitted by either party whether the shareholder is entitled to be paid the fair cash value of any shares and, if so, the number and class of such shares. If the court finds that the shareholder is so entitled, the court may appoint one or more persons aS appraisers to receive evidence and to recommend a decision on the amount of the fair cash value. The appraisers have such power and authority as is specified in the order of their appointment. The court thereupon shall make a finding as to the fair cash value of a share, and shall render judgment against the corporation for the payment of it,with interest at such rate and from such date as the court considers equitable. * * * “(C) If the proposal was required to be submitted to the shareholders of the corporation, fair cash value as to those shareholders shall be determined as of the day prior to that on which the vote by the shareholders was taken, and, in the case of a merger pursuant to section 1701.80 or 1701.801 of the Revised Code, fair cash value as to shareholders of a constituent subsidiary corporation shall be determined as of the day before the adoption of the agreement of merger by the directors of the particular subisdiary corporation. The fair cash value of a share for the purposes of this section is the amount that a willing seller, under no compulsion to sell, would be willing to accept, and that a willing buyer, under no compulsion to purchase, would be willing to pay, but in no event shall the fair cash value exceed the amount A-32 The prior section of the General Code did not include a definition of “fair cash value.” Accordingly, this court, in Roessler v. Security Savings & Loan Co. (1947), 147 Ohio St. 480, 34 0.0. 389, 72 N.E.2d 259, defined the term in the first paragraph of the syllabus, as follows: “The ‘fair cash value’ which a dissenting shareholder in a corporation is entitled to receive for his shares in a proceeding brought ! pursuant to Section 8623-72, General Code, is the intrinsic value of the shares determined from the assets and liabilities of such corporation, upon consideration of every factor bearing on value.” (Emphasis added.) This court, in Roessler, further found that the trial court had erred in instructing the appraisers that “fair cash value” meant a sum equal to that at which a willing buyer would purchase stock from a willing seller, i.e., the “market value” of such stock. It was then determined that such instruction was prejudicial to the stockholder, in that market value may be less than the intrinsic value of the stock. Subsequently, and by what has been termed a response to Roessler, the General Assembly enacted R.C. 1701.85(C), effective October 11, 1955 (126 Ohio Laws 432, 485), which provided for the definition of “fair cash value” as the willing seller- willing buyer test. Significantly, the Comment of the Ohio State Bar Association Committee which recommended the addition of the definitions to this section, stated: “Division (C). This division contains a frequently used definition of ‘fair cash value.’ This definition is one that is found in a great mass of judicial decisions both in Ohio and elsewhere, in litigation involving the value of property, in appropriation suits, tax controversies, and other legal proceedings in which property must be valued. It is believed that this definition will give the Bar a clearer test than that of ‘intrinsic value’ established by the Supreme Court in Roessler v. Security Savings & Loan Co., 147 O.S. 480 (72 N.E.2d 259).” 28 Ohio Bar 102 (Jan. 10, 1955). Since the adoption of division (C) in R.C. 1701.85, this court has had no opportunity to discuss the meaning and application of the willing seller-willing buyer definition to the words “fair cash value” in the specified in the demand of the particular shareholder. In computing such fair cash value, any appreciation or depreciation in market value resulting from the proposal submitted to the directors or to the shareholders shall be excluded.” ee ee A-33 valuation of the shares of dissenting shareholders. 12 However, a number of Ohio cases in the courts of appeals involved the interpretation of such words within R.C. 1701.85. The Court of Appeals for Franklin County considered the meaning of such terms in Vought v. Republic-Franklin Ins. Co. (1962), 117 Ohio App. 389, 24 0.0.2d 168, 192 N.E.2d 332. That court determined the manner by which, under the new definition, the dissenter’s stock should be valued. The case apparently involved an appraisal of shares held by the dissenting shareholders of Republic - Franklin Insurance Company, which company’s stock was not being traded upon any stock exchange. The dissenting shareholders in Vought argued that the willing buyer-willing seller standard may not apply where there are no market transactions from which to gain this data. In such an instance, they argued, the standard of valuation would be the “intrinsic value.” The court, however, held that the adoption of R.C. 1701.85,including its definition of fair cash value, “was a legislative overruling of the holding of the Roessler case by a deliberate adoption of the hypothetical market value standard, and that standard is applicable to the valuation of shares held by dissenting shareholders regardless of the existence or nonexistence of comparable sales in a suitable existing actual market.” Id. at 391, 24 0.0.2d at 169, 192 N.E.2d at 334. “Such a standard generally will permit evidence to be introduced as to any factor which a reasonable man would take into consideration in determining value. Actual market conditions are, therefore, open to proper interpretive evidence.” Id. at 391, 24 0.0.2d at 169, 192 N.E.2d at 333. In Vought the court pointedly set forth its recognition of the appropriate factors to be considered in other situations where the active market trading of the shares of the corporation was involved. The court stated that: “(u)nder some conditions certain types of evidence may be so persuasive as to be entitled to a legally preferred status, and other evidence could become too speculative. If a sufficient actual market existed for identical items, in which active trading was occurring, such evidence might be controlling, and other methods of evidencing value (for example, Original cost or capitalization of earnings) may be excludable. This point 12. At present, Ohio, together with a small but growing minority of other states, defines the value of a share by the willing buyer-willing seller test. Obviously, market price of the stock is the focus of such valuation. See, e.g., Ga.Code Ann. Sections 22-1201 and 1202. ee A-34 | would probably be true in most cases involving the valuation of stock | which is actively traded on the New York Stock Exchange.” Id. Following the Vought case, the same court of appeals hac further occasion to discuss and interpret the language of R.C. 1701.85(C) in Parten v. Pure Oil Co. (July 1, 1969), Franklin App. No. 9023, unreported. The author of the opinion in the case sub judice was also the author of the Parten opinion. In Parten, the court stated: “We hereby adopt and apply this philosophy as set forth in the Vought case to the cause | before this court. “As reasonably stated in Vought, ‘in the absence of a suitable actual market, valuation is difficult and the evidentiary problem can become very complex.’ However, where there is in fact a presence of such suitable actual market for the identical stock to be appraised, such evidence should be controlling. “If the actual market is deemed to be sufficiently active in its trading of the particular stock in question, then, giving substantial weight to such factor does no violence to the willing seller, willing buyer (hypothetical market) theory. “Such actual market price would in fact be the willing seller, willing buyer amount dictated by the statute. From such amount, of , course, there must be excluded either appreciation or depreciation, if either is found to be present as a result of the proposal acted upon by the sharcholders.” Id. at 17. In Parten, on a review of the evidence that had been before the appraisers and the trial court, the appellate court held that there was “a = sufficiency of activity in the market for Pure (Oil) shares, and that the time relationship of such activities on the New York Stock Exchange on the date in question of July 1, 1965, constituted a sufficient market in which such trade was in fact occurring.” Id. The court stated that “the evidence of the actual market price as to be found upon the Stock Exchange, should have been so persuasive as to be given a preferred status over the other information and data related to asset value, going concern value, etc., in determining the ‘willing seller, willing buyer’ fair cash value of such stock on the appraisal date as provided by the statute.” Id. at 21. There are several rationales which support the analyses set forth in Vought and Parten, supra. Generally, modern shareholders do not purchase stock as emtrepreneurs who closely scrutinize or take an inierest in corporate operations, but instead seek assured incomes and long-term lei A«35 ~~ appreciation of their investment. 13 As one commentator has stated: “(I)n substantially every case other than (those) related to control, the owner of shares of a company listed on a national securities exchange ftegards himself as an investor in those securities, rather than as a part of the corporate enterprise. The investor's objective is not to promote the income of the corporation but to enhance his distributive share, not to inctease the corporate assets but to enhance the value of his securities. Since the measurement of these objectives is provided by the exchanges ... dissent and appraisal no longer (should be) required.” !4 (Emphasis added.) Moreover, the putchaser of shares makes, at most, only a limited commitment to the kind of large corporation that has widely traded stock. The usual investor has never sought the assets of the corporation or access to control of its operations. It is therefore most unreasonable to attempt to value a share of stock, held by a dissenting shareholder, utilizing valuation techniques oriented upon inner-corporate functions and property holdings of which the shareholder had little if any knowledge at the time he purchased the stock. Not can we fail to notice that the kina of apptaisal procedures which utilize the various aforementioned approaches to valuation are most expensive. Such approaches invariably create the spectacle of considerable sums being spent to haul thousands of documents and numerous, but often contradictory. expert opinions into court to be analyzed by a trial judge who may have only a limited frame of reference in such matters. Furthermore, many of such documents are internal and/or of a confidential nature, as in the record before us, revealing ordinarily hidden assets and valuations. As previously mentioned, such knowledge was largely unknown to the shareholder at the time he purchased his stock. Consequently, it formed little or no part of his decision to purchase the stock or, indeed, to dissent from the tender offer and merger. On the other hand, a great number of studies have shown that stock exchanges, such as the New York Stock Exchange. have a reasonably efficient market, 15 13. See, ¢.g., Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780-1970 (1970). 14 See fn. 8, supra, Note, at 1029, quoting Scott, Changes in the Mode} Business Corporation Act (1968), 24 Bus.Law 291, 303. Also, business decisions are more often unaffected by the desires of shareholders. See, ¢.g., 2 Davis, Corporations (1961) 272-274. 15. See, e.g., Ball & Brown, An Empirical Evaluation of Accounting Income Numbers (1968), 6 J. of Acc. Res. 159 (fownd that most information contained in annual earnings announcements is anticipated by the market before the actual A+36 meaning that the market price of a shafe will ordinarily yoy ' iromes fashion within a range quite near the actual value of the stock. 16 By utilizing the stock market price as the beginning point of analysis if cases such as those before us how, a gfeat many advantages will result to shareholdets and corporations alike. One obvious benefit is that the scope of arialysis is faitly narrowéd such that the parties may, to a reasonable degree, predict the outcome of the proceedings. Pre-appraisal settlement then becomies the better altemative to litigation. The harassment potential inherent within an appraisal remedy as well as vexatious lawsuits (by those whose real goal is simply to receive more moriey for theif stock) will, under the within clarified standard, become much more unlikely. Further, costs to all shareholders will be ultimately reduced by this more straightforward proceeding. The dissenting shareholder will bear fewer costs to exercise his legal rights since the scope of discovery and concomitant courtfoom presentations will be lessened. Also, the costs to the majority shafeholders will decrease sifice less corporate funds will go toward participation in the appraisal proceeding. Finally, a less complicated valuation proceeding will advance the goal of streamlining corporate reorganizations and, at the same time, protect the liquidity and value of the dissenting shareholder's stock. report is released); Crouch, A Nonlinear Test of the Random-Walk Hypothesis (1970), 60 Am.Econ.Rev. 199 (serial correlation tested five NYSE stocks for special conditions and found independence in pricing); Fama & Blume, Filter Rules and Stock Market Trading (1966), 39 J. of Bus. 226 (application of filter rules to the DJIA stocks found independence in price behavior); Fama, Fisher, Jensen & Roll, The Adjustment of Stock Prices to New Information (1969), 10 Intl.Econ.Rev. 1} (study of stock splits on the NYSE supports efficiency theory sinee the market makes an unbiased forecast of the implications of the split for | future dividends); Granger & Morgenstern, Spectral Analysis of New York Stock Market Prices (1963), 16 Kyklos | (use of spectral analysis found independence in prices in stocks in Standard & Poor's Industrial Index), discussed in Baumol, The Stock Market and Economie Efficiency (1965) 40- 41; Mandelker, Risk and Return: The Case of Merging Firms (1974), 1 J. of Finan.Econ. 303 (market discounts néws of merger many months in advance); Scholes, The Market for Securities: Subsiitution versus Price Pressure and the Effects of Information on Share Prices (1972), 45 J. of Bus. 179 (study of secondary distributions found that market anticipates information implicit in the offering). 16. See, é.g., Cootner, The Random Character of Stock Market Prices (2 Rev.Ed.1967); Mandelbrot, Forecasts of Future Prices, Unbiased Markets, and “Martingale” Models (1966), 39 J. of Bus. 242; Lorie & Hamilton, The Stock Market: Theories & Evidence (1973) 75-80. A-37 Having established the accuracy and desirability of the stock market price as an initial value in cases such as the one before us, it must now also be pointed out that the statute requires that any effects of the subject transaction which are caused by either appreciation or depreciation of the market price must be removed from such price. 17 Admittedly, merely adopting the market price established by the trading activity on the day before the vote to initiate the merger may not suffice to fully eliminate such effects. 18 However, Ohio’s statutory mandaie is sufficiently broad to allow inquiry into such factors as may have created a price disparity. The valuation remedy clearly is a remedy that does not give dissenting shareholders any element of value attributable to the transaction from which they have dissented. On the other hand, any factors relating to the merger which have artificially depressed the stock’s price ought not to create a windfall for the tenderer at the expense of the dissenter. Certainly prices of the stock which prevailed before the market began to adjust for the impending merger would constitute vaiuable evidence. This approach is currently utilized in prosecutions under Rule 10b-5 (Section 240.10b-5, Title 17, C.F.R.) (fraud on the market) where the fraudulent transaction is measured by the difference between the market price paid for the shares fraudulently obtained and that market price adjusted for the appreciation or depreciation created by the fraudulent practice. Moreover, such prosecutions presume not only that the market efficiently incorporates information into the price but also that the price otherwise reflects value. See, e.g., Blackie v. Barrack (C.4.9, 1975), 524 F.2d 891, certiorari denied (1976), 429 U.S. 816, 97 S.Ct 57, 50 L.Ed.2d 75; Jennings & Marsh, Securities Regulation: Cases and Materials (1982) 1186. Based upon the foregoing, we believe that the applicable law stated within Parten v. Pure Oil Co. may be applied here. Furthermore, the later amendments to the dissenting shareholder statute, R.C. 1701.85, particularly the addition of the terms, willing buyer-willing seller, permit the dissenting shareholders to elect to receive, in lieu of the tender consideration, that amount which their shares would have brought on the market at the time of the merger, had the transaction dissented from never 17. R.C. 1701.85(C) provides, in pertinent part, that: “In computing such fair cash value, any appreciation or depreciation in market value resulting from the proposal * * * shall be excluded.” 18. See, e.g., Mandelker, Risk and Return: The Case of Merging Firms (1974), 1 J. of Finan. Econ. 303. A-38 occurred. The evidence adduced at the trial herein showed that there was considerable trading of Marathon stock on the New York Stock Exchange. The record before us indicates that from November 2, 1981 until March 10, 1982, the date of the shareholders’ vote, 35,211,100 shares of Marathon stock had been traded on the Exchange. The trial court noted in its opinion that “(i)f we consider that Marathon had 56,689,306 shares outstanding on March 10, 1982, 62.112% of such shares (was) traded.” Conceming the sale price of the Marathon stock during this period, the court noted that: “The high during that period was 108 1/8 and the low was 70 3/4 .” The stock actually closed at 75 3/4 on March 10, 1982. The trial court, in viewing the market activity of the Marathon stock upon the Exchange, concluded that R.C. 1701.85, and the case law available, would require it to give due emphasis, if not controlling emphasis, to the market price rather than to a theoretical market value based upon an analysis of various factors including the assets of the corporation. The court of appeals rejected the trial court’s analysis on this point. It held that: “(W)hat is to be valued is not the value of a single share if it were to be sold in an isolated sale, but instead the value per share of all the shares of the corporation. which can be determined only upon the basis of a hypothetical market or sale of all the shares of the corporation.” We conclude that the court of appeals mistakenly viewed the intent and meaning of the words of the statute as well as the holdings of both Vought and Parten. The view that fair cash value must be determined by calculating a pro-rata share of a constructed or hypothetical purchase price for the entire corporation where there is an actual market for the stock of the company particularly when the stock is actively traded is simply incorrect. As held in Vought, and emphasized in Parten, the Ohio statute provides for the willing seller-willing buyer standard, which is the market value definition. It should be applied whenever the indicia of significant market trading is manifest. Also, evidence of such market activity and price should be of greatest significance and weight. The statutory scheme of R.C. 1701.85 was established to enable courts and their advising appraisers to determine not only the value of actively traded stock, as in the case sub judice, but also the value of closely held stock in privately or closely held corporations, which stock has little, or no, over- the-counter trading activity. In the latter instances, the-trial court and the appraisers would have no analysis of market activity to apply. Under such circumstances, they may well apply the so-called A-39 hypothetical market valuations to the dissenters’ shares. In so doing, the court may utilize all acceptable accounting principles including asset value, capitalization of earnings, dividend retums, management, potential growth of corporate endeavor or product, as well as other acceptable criteria. However, where a reasonably sufficient actual market does exist, there is no need to construct a hypothetical market. As noted, the court of appeals held that the fair cash value must be determined upon the basis of a sale of “all or substantially all” of the shares of the corporation, not just upon the determination of value of “‘a single share” of the corporation. We believe this to be incorrect. As the court in Parten noted, “‘(t)he statute requires that the appraisal of the fair cash value be for a share of the stock appraised.” (Emphasis sic ) Id. at 20. The relief being sought by the dissenting sharehol¢er is “payment to him of the fair cash value of the shares as to which ne seeks relief. * * * “ R.C. 1701.85(A)(2). It is therefore readily apparent, from the wording of the statute itself, that the determination of value to be made is of the value of those shares held by the dissenting shareholders who opted not to join with the other shareholders in approving the corporate action of merger or other basic structural change. There is no reason to consider, nor is the dissenting shareholder entitled to receive, any of the premium value offered as consideration to those who in fact tendered their shares. We determined that, in applying its “all, or substantially all” approach to determine fair cash value of the dissenting shareholders, the court of appeals also improperly considered the $125 per share offered by U.S. Steel in the mid-November tender offer which was for fifty-one percent of Marathon’s stock. This amount must reasonably be considered as a premium offer, made to enable U.S. Steel to acquire the controlling stock in Marathon. Further, by its terms, this premium offer was to be apportioned only among the accepting shareholders and was not to pertain to the other shareholders. We now hold that where there is considerable stock market indicia upon which to rely for the determination of fair cash value, the amount tendered to obtain the controlling interest of the corporation is not properly includable in the determination. 19 Thus, as the Supreme Court of Oklahoma noted in Foglesong v. Thurston Natl. Life Ins. Co. (Okla.1976), 555 P.2d 606, 611: “The purchase of stock to gain 19. See Easterbrook & Fischel, Corporate Control] Transactions (1982), 91 Yale L.J. 698, 708-711; Toms, supra (78 Colum.L.Rev. 548), at 556 (tender offer bid is product of bargaining); Henry, Activities of Arbitrageurs in Tender Offers (1971), 119 U.Pa.L.Rev. 466, 469 (risk that merger may fail is borne by arbitrageur). we A-40 controlling interests is not properly includable in detennining the market value of the shares of stock, and the court may take judicial notice of the fact that acquisition of stock to acquire control is frequently made a premium prices.” (Footnote omitted.) See, also, In re Valuation of Common Stock of Libby, McNeill & Libby (Me.1979), 406 A.2d 54, 58, fn. 3 (noting that tender offers frequently, if not usually, involve premiums in excess of current market price); Gibbons v. Schenley Industries, Inc. (Del.Ch.1975), 339 A.2d 460, 468 (based upon the Statutory proceeding). In determining the “fair cash value” of shares held by dissenting shareholders under R.C. 1701.85, the inquiry should first focus upon the degree of sales activity of such stock upon the major exchanges, then the activity if any upon the smaller exchanges, or over-the-counter sales. If there is found to be significant activity upon any of these markets, then a court should focus upon the subject stock’s trading activity as a benchmark for the willing seller-willing buyer standard. It is our belief that the legislative amendments intended that where market activity is significant, that market’s price should be utilized. With proper adjustments for the impact of the proposed transaction dissented from, such market price-will allow the dissenter to exit the market in basically the same manner, and by the same terms, as he entered. As to the adjustments to the market price to accommodate any appreciation or depreciation present in that price because of the pendency of the proposed merger, as required by R.C. 1701.85(C), the trial court found that its determination of “fair cash value does not include any ‘appreciation,’ which is to say, enhancement of the value of Marathon stock. * * * “ Marathon argues here that the correct applicable valuation date was March 10, 1982, and that although the stock market value of a Marathon share of stock on this date was $75.75, there was significant evidence that the price was appreciated due to the U.S. Steel merger offer. The record shows that from January 1, 1981 to October 29, 1981, Marathon’s stock price had, in what one witness termed “a horrendous bear market,” a range from a low of $46.125 on May 26, 1981 to a high of $79.75 on August 13, 1981. Moreover, the average price over the same period was some $60 per share. On October 29, 1981, Marathon stock closed at $63.75 on a volume of 369,100 shares. Mobil submitted the tender offer to purchase up to sixty-seven percent of Marathon stock for $85 per share on October 30, 1981. Marathon stock traded on the Exchange at $90 on November 2, 1981. The price then ranged downward until it reached $77 per share on November 18, 1981, which was the date A-49 issues yet to be determined and may present any new evidence upon such issues as has not already been placed within the record. IV > oa ye ,* Harrell asserts that the trial court's refusal to grant a jury trial upon the issue of fair cash value was violative of Section 5, Article I of the Ohio Constitution, which states, in pertinent part: “The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three- fourths of the jury.” Appellant also points to R.C. 2311.04 which provides that: “ * * * Issues of fact arising in actions for the recovery of money only, * * * shall be tried by a jury * * *.” The scope of such statute is certainly no greater than the constitutional provision. (13) In contrast to appellant's claim, R.C. 1701.85(B) provides that: “The court thereupon shall make a finidng as to the fair cash value of a share, and shall render judgment against the corporation for the payment of it * * *.” (Emphasis added.) Quite clearly, this provision dispenses with the requirement of a jury trial and requires that the finding be made by the trial court, with or without the aid of an appointed appraiser. Furthermore, the law of Ohio has, for some time, been that the constitutional provision for a right to jury trial applies only where trial by jury existed at common law. As early as 1799, the territorial legislature established special proceedings to ascertain value to be paid where otherwise a money damages action would lie. See Willyard v. Hamilton (1836), 7 Ohio 398. In Willyard, the precise argument as presented in the case sub judice was set forth as an objection to the statutory grant of power to a board of commissioners to determine valuation. In commenting on the applicability of Ohio's constitutional protections for a right to jury trial, the court made the following observations: “ * * * Perhaps there is no constitutional question which has ever been discussed in this country, which has been so completely settled by contemporaneous construction and universal acquiescence. On what principle is it that juries are dispensed with in the greater number of our courts, in courts of equity, courts of admiralty, courts martial, and courts of justices of the peace. Magna charta declares that no man shall be deprived of life, liberty, or property, but by the judgment of his peers, or the law of the land. * * * (A)s juries were unknown in those courts before the great charter, their disuse constituted a part of the law of the land; and, therefore, although that charter was the first great instrument which solemnly guaranteed jury trial to Englishmen, yet it has never been SS ee” ,t—‘ SlCr soa . A-50 supposed that that institution const:tuted a part of the machinery of those courts. * * * “The provision in magna charta, which I have referred to, is transcribed into the ordinance, omitting only the word life. And if the last six articles of this instrument are of perpetual obligation, then we have in Ohio the same law and the same course of proceeding as in Enyland, and very nearly the same as in the other states of the Union. If the law were otherwise, RO Courts would have time sufficient to try the infinite multitude of actions which would arise. * * * " (Emphasis sic.) Id. at 402-403. Th a subsequent Case, Belding v. State ex rel. Heifer (1929), 121 Ohio St. 393, 169 N.E. 301, Ohio’s General Assembly had provided that, in parentage determinations, the trial court was to determine the amount payable as child support, maintenance, etc. G.C. 12123, as amended April 30, 1923. In considering whether the statute violated the Ohio Constitution, this court stated that: “Tt was not, however, the intention of the framers of that clause * * * t guarantee the right of trial by jury in all controversies. That guaranty only preserves the right of trial by jury in cases where under the principles of the common law it existed previously to the adoption of the Constitution. The right of trial by jury has uniformly been recognized and enforced in this state in actions for money, where the claim is an ordinary debt, but it is equally well recognized U-xt many special proceedings for the enforcement of a moral duty, where the payment of money is the ultimate relief granted, does (sic ) not entitle the parties to a jury trial. > * * “ Id. at 396-397, 169 N.E. at 302. It becomes clear that the special proceeding established by R.C. 1701.85, providing for valuation of shares by the trial court, need not require the participation of a jury. Obviously such valuations are most similar to those kinds of proceedings which were exempt at common law. Accordingly, we find that the General Assembly did not violate the Ohio Constitution by its creation of the valuation proceeding under R.C. 1701.85. Vv R.C. 1701.85(B) provides that following a determination of fair cash value of the dissenters’ stock, the trial court “shall render judgment against the corporation for the payment of it, with interest at such rate and from such date as the court considers equitable.” At trial, the court applied an interest rate of eight percent based upon R.C. 1343.01(A), which the A-41 U.S. Steel made its offer. The stock went up following such offer to $104.25 on November 19, 1981. It stayed at a little over $100 until December 12, 1981 when the stock began to decline to the mid $70s. The closing price, as stated, on March 10, 1982, was at $75.75. The mandate of R.C. 1701.85 is that any appreciation or depreciation in market value resulting from the proposal submitted to the directors or to the shareholders shall be excluded. The above review of the average of the stock market prices of Marathon stock between the date of the U.S. Steel proposal and the date of the shareholders’ vote, i.e., between November 18, 1981 and March 10, 1982, would indicate that there had not been significant appreciation in such prices. Any fluctuation was apparently due to normal willing seller-willing buyer activity. The tral court so found and denied any appreciation factor in its fair cash price determination. However, as stated, Marathon argues that there was a demonstrated appreciation of the stock here, which should be factored in by the trial court. Marathon argues that the opportunity and prospect of Marathon stock purchasers’ receiving a note, then valued at slightly more than $76, for each share of their stock, caused the market price of Marathon’s shares to stay near that level. Data offered by Marathon’s expert witnesses showed that Marathon’s stock, absent the merger offer, would have returned to the range of other comparable oil producing corporations which, it was shown, declined in price by approximately thirty percent in that same period. It was testified that, absent the prospect of exchanging stock for notes, Marathon’s stock would have fallen below $50 per share, being adjusted to reflect the market and company outlook during the period of October 1981 to March 10, 1982. (5) Based upon all of the evidence presented, we hold that the trial court should have first established the correct date for the valuation of the stock, i.e., March 10, 1982. Second, all factors concerned with, or reasonably affecting, any appreciation of the stock should have been reviewed and decided by the trial court. Accordingly, this matter is reversed and the cause is remanded to the trial court for the limited determination of what appreciation or depreciation, if any, existed due to the U.S. Steel proposal submitted to the Marathon shareholders. Il. As previously mentioned, appellee, Frances A. Armstrong, made demand for fair cash value upon Marathon in her own name and also in the individual names of various members of the Marathon Shareholders A-42 Comunittee. She signed the demand letters as attorney in fact and delivered them on March 22, 1982. The demand letters sc executed were filed within the ten-day period prescribed by R.C. 1701.85(A)(2) which, in pertinent part, requires that: “Not later than ten days after the date on which the vote on such proposal was taken * * *, the shareholder shall deliver to the corporation a written demand for payment to him of the fair cash value of the shares as to which he seeks relief * * *.” Approximately three weeks later, Armstrong provided evidence of her power of attorney to act for the above shareholders. Prior to trial, Marathon moved for summary judgment against the above shareholders asserting that their demand letters were untimely because no proof of the existence of Armstrong’s power of attorney was provided until after the ten-day limitation had expired. The trial court agreed, upon authority of Klein v. United Theaters Co. (1947), 148 Ohio St. 306, 35 0.0. 298, 74 N.E.2d 319, and its third syllabus paragraph which states, in pertinent part, that a shareholder has failed to comply with the statutory demand requirements if he “did not personally make an objection in writing to the corporation and demand the fair cash value of his shares, and the only written objection and demand on behalf of the shareholder was made by an agent who was a stranger to the corporation and furnished no proof of his authority or agency, although the shareholder did not vote in favor of the sale.’ (Emphasis added.) Also, it was Stated in Klein “that such written authority must be displayed to or filed with the corporation within the time limited.” Id. at 324, 35 O.O. at 305, 74 N.E.2d at 327. The court of appeals determined that neither the statute nor the language of Klein required proof of a power of attomey to be presented or displayed to the corporation within the ten-day period. Although we hold that the principles of law as set forth in Klein are valid, generally requiring that proof of an agency relationship be submitted within the ten-day period, we nevertheless conclude that where the agent is not a stranger to the corporation, such principles may not be applicable. In this regard, there are several factual distinctions between the case here and Klein. Furthermore, because there are several rationales underlying Klein which are not applicable to the case sub judice, we find that Klein is not determinative of this case. As previously mentioned, and also as pointed out in Klein, at common law a single shareholder could, by his vote, entirely block a merger or liquidation of assets. Id. at 317, 35 O.O. at 303, 74 N.E.2d at 324-325. Ordinarily, it is the rule that statutes in derogation of the common A-43 law are to be strictly construed. This rule would more properly apply to the statutory provisions which strip the shareholder of his power to block the transaction, and not those which, by way of exchange, grant him the nght to cash out his stock at a fair price. Of course, very little is to be gained by strictly construing the statute against the dissenting shareholders especially since, in the historical development of corporations, prior law allowed individual shareholders to exercise more’ power. Therefore, those provisions which regulate *he powers of shareholders need only be as strictly construed as modern economic necessity would dictate and/or the General Assembly might specifically require. Admittedly, the use of a proxy by an agent of the shareholder is in derogation of the common law since “(t)he right to vote at meetings (formerly could noi) be delegated.” Id. at 319, 35 0.0. at 303, 74 N.E.2d at 325. Currently, however, the right to utilize the services of an agent to vote one’s shares or otherwise exercise the power of a shareholder is granted by R.C. 1701.48(A) which provides in pertinent part that shareholders “may be represented at (a shareholders’) meeting or vote thereat, and execute consents, waivers, and releases, and exercise any of his other rights, by proxy or proxies appointed by a writing signed by such person.” (Emphasis added.) The only relevant portion of this statute amendable to a strict construction is the manner in which such agency relationship is to be established, i.e., by an executed writing granting such power as is intended, and also, by direct inference, that such writing be executed before the exercise of the power conferred. This, of course, was quite correctly determined in Klein, supra, at 324, 35 O.O. at 305, 74 N.E.2d a 327. On the other hand, the issue of when such authority ought to be displayed to the corporation is not comprehended by the statute and, thus, should not be subjected to a strict statutory or other construction. Whether the exercise of power granted ought to be narrowly or broadly viewed regarding the timing issue is properly determined from the necessities and practicalities of corporate legal circumstances. © An example of when the power of attomey or proxy should be displayed prior to its exercise is demonstrated by those circumstances and legal implications of voting the shares of stock. For quite obvious reasons, voting of stock must be done only by those who are the owners of such stock or their designated agents. Shareholder voting directs and controls basic corporate policy. The vote determines who will have the responsibility of conducting the business affairs of the corporate entity. Consequently, the identity of shareholders or their designated agents must Se A-44 be ascertained at the time of, or prior to, shareholder discussions or voting. And so it is that, ordinarily, without presently demonstrable authority to act on behalf of one who holds stock, an alleged agent may not exercise any right, privilege, or power of a shareholder in such matters. Indeed, the agent’s very admittance to shareholder meetings may be conditioned upon presentation of proof of such authority, which safeguards against outside interference into corporate matters. A demand for fair cash value is, however, quite distinct from voting the shares, both as to the legal consequences of the act itself as well as to the pronounced lack of circumstances surrounding the act which might give rise to a necessary advance proof of written authority to act. The demand for fair cash value is not the exercise of a voting right. In fact, under R.C. 1701.85(A), the vote for merger must already have occurred before the right to make demand for appraisal arises. The legal effect of such demand is that the shareholder may no longer have any voice in the corporation’s policy determinations. R.C. 1701.85(E) provides that from the time of demand notice, all of the shareholders’ rights to vote the shares (supposing that the class of stock enjoys voting rights), rights to dividends, as well as all other rights arising from stock ownership “are suspended.” Also, upon request of the corporation, such shares must be physically surrendered upon demand in order that the corporation may “endorse on them a legend to the effect that demand for fair cash vaiue of such shares has been made.” R.C. 1701.85(A)(5). This may be required because “after the demand, they are not ‘good delivery’ as shares, since they then represent merely an unliquidated monetary claim against the corporation.” Committee Comment to R.C. 1701.85. Thus, rather than being the exercise of shareholder power, such demand instead functions as an abdication of rights and interests in the corporation. As a practical matter, the demand serves only a notice purpose that the shareholder prefers to sever his connection with the corporation. As previously mentioned, the dissenting shareholder who makes a demand for faircash | value will in all probability have’ already unsuccessfully voted against a merger. See R.C. 1701.85(A). Such dissent, and probability of demand for fair cash value, are therefore already manifested by the dissenting vote. Also the demand is a further expression of dissatisfaction and seeks compensation for the dissenting shareholder. Accordingly, there is no A-45 then-present urgency to ensure, with absolute accuracy, that only those qualified to make demand are, in fact, doing so. 20 Despite the inapplicability of portions of the Klein case to the one before us, we nevertheless continue to adhere to our view that a stranger to the corporation must provide proof of his authority to act prior to any exercise thereof. There is present both urgency as well as concems of vital importance when, as correctly determined in Klein, the one claiming power to act as agent is a stranger to the corporation. Klein, supra, at 322, 35 0.0. at 304, 74 N.E.2d at 326. Such persons are third parties to the relationship between corporation and shareholder. The corporation has no obligation to, or authoirty over, one in such position, absent proof of authority to act. His announcement of‘demand for fair cash value is attended with the taint of suspicion that he acts on his own. It is, therefore, only reasonable that the corporation not be required to presume his authority upon his mere announcement of it. However, the shareholder who acts for other shareholders should not be held to such a standard. He is a fully interested party to the proceedings and is himself usually in harmony with those shareholders whom he represents. Moreover, his rights in making his own demand flow from his personal ownership of stock. The nature of his position, we feel, is of sufficient proximity to entitle him to a reasonable presumption that he possesses the claimed written authority. The corporation may, of course, insist upon viewing evidence of such written authority. However, prior to such demand, there is nO requirement that a shareholder who makes demand for fair cash value for himself and other shareholders be required to provide evidence of his authority within the time limits imposed by R.C. 1701.85(A), so long as 20. Klein, supra, made considerable reliance upon the rationales underlying the Delaware cases, In re Universal Pictures Co. (1944), 28 Del.Ch. 72, 37 A.2d 615, and Friedman v. Booth Fisheries Corp. (1944), 28 Del.Ch. 211, 39 A.2d 761. Their persuasiveness and applicability to the Ohio statute generally, and the case sub judice in particular, are greatly undercut by the fact that the Delaware corporate law upon which these cases were deci [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3387%3A2. Public record. Not legal advice.