Mason v. Mason

In this shareholder dispute case, Joseph E. Mason, Jr. (Son) appeals the special referee’s decision granting judgment on his causes of action including breach of contract, breach of fiduciary duty, wrongful termination, and civil conspiracy in favor of Catherine L. Mason (Mother), Joseph E. Mason, Sr. (Father), Kathy St. Blanchard (Daughter) (collectively, the Masons), *39Mason Holding Company, Inc. (the Company), and Irwin Levine (Accountant) (collectively, Respondents). He also asserts the special referee erred in not ordering the repurchase of his shares of the Company. He further contends the special referee erred in finding for the Masons and the Company on their counterclaims. We affirm.

FACTS/PROCEDURAL HISTORY

The Company operates five tire and auto service stores in Horry and Georgetown Counties. It is a statutory close corporation without a board of directors. For many years, Father had operated eight retail stores for Goodyear Tire & Rubber Company and was a partner in a truck tire center in Miami, Florida, where he and Mother resided. In 1984, Father decided to start a tire and auto service business in the greater Myrtle Beach area. Son and Daughter wanted to be involved, and each contributed $10,000 for a ten percent interest in return. Son graduated from the University of Alabama with a degree in business administration and started working for Ryder Truck Rental in Florida in 1983. After the location was acquired for the first store, Son moved to Surf-side Beach to open the first store and be the store manager. Daughter and her husband, Oswald St. Blanchard (Ozzie), also moved to the area to work at the store. Daughter did bookkeeping and sales. Mother and Father moved to the area in 1989 to work on expanding the business into commercial accounts. Around 1989, Accountant started working for the Company as its accountant. He had previously worked for Mother as an accountant in Florida. Accountant was not a certified public accountant, a CPA, but was a PA, a public accountant. He lived in Florida and did not have a license to practice accountancy in South Carolina. He had prepared the Company’s tax returns since 1989 and also served as family members’ personal accountant.

In 1989, the family opened a store in North Myrtle Beach. In 1995, they opened a store in Pawleys Island. In 1998, the Company was formed and ownership of the individual stores was transferred to the Company. At that time, Father owned 520 shares, Mother owned 160, Son owned 160, Daughter owned 90, and Ozzie owned 70. In 1999, the Company opened an additional store in Myrtle Beach. The buildings and land where the Company’s stores were located were owned by *40separate entities owned by members of the Company. By 2001, Son was president of the Company.

On December 18, 2004, Ozzie was severely injured in a motorcycle accident and as a result became a quadriplegic. The accident occurred on a Saturday while Ozzie was riding in a Toys for Tots ride. Ozzie was wearing his uniform and had represented the Company in this capacity before. Ozzie had appeared in commercials for the Company and was “the face” of the Company. Son believed Ozzie was not entitled to workers’ compensation because he was not at work when the accident occurred and his claim would increase the Company’s insurance premiums. The matter was litigated, and the single commissioner of the Workers’ Compensation Commission determined Ozzie was acting within the course and scope of his employment when the accident occurred and found the claim compensable. The Appellate Panel reversed the single commissioner in a two to one decision. The matter was appealed to the circuit court, but before the circuit court reached a decision, the parties settled the claim.

Son testified Father had told him they needed to make sure Ozzie got workers’ compensation benefits for the accident. Son believed Father was asking him to perjure himself and indicated he told Father he could not do that. Son felt the disagreement was the turning point in his relationship with the rest of the family. Father testified he did not ask Son to lie and Son only worried about it costing the Company a lot of money. Father believed Ozzie was working in the course and scope of employment. Father indicated Ozzie was not working at one of their stores that day but he was working for the company by appearing at the Toys for Tots event. The minutes from a stockholder meeting of the Company following the accident as well as Father’s deposition during the workers’ compensation proceeding state Father and other employees saw Ozzie at one of the stores on the day of the accident while he was picking up business cards and coupons. The special referee found Son’s testimony on this matter to be uncredible.

Mother and Father began thinking about retirement and developed a retirement plan. Initially, they planned for Son and Daughter to purchase Mother’s and Father’s shares. However, the parties decided for tax purposes Mother and *41Father would incrementally give Son and Daughter shares in the Company with Son and Daughter each owning half the shares by December 31, 2011. Also as part of the retirement plan, on January 1, 2003, an LLC owned by Mother and Father, which owned the property for one of the store’s locations, executed a lease with the Company for $90,000 annually for a term of nineteen years. The lease was only for the building because a prior lease agreement was in effect for the land. Additionally, on December 31, 2002, Mother, Father, Daughter, and Son entered into an employment contract lasting until December 31, 2022, to pay Mother and Father a total of $10,400 per year as well as benefits including health insurance, a gasoline credit card, and a company car. Accountant testified they were trying to minimize the impact on social security income and self-employment taxes. Father testified the second lease was created in order to pay Father the same amount he had been receiving previously though salary. In 2003, Mother and Father began receiving the payments from the employment contract and through their LLC under the lease. By 2007, in keeping with the retirement plan, Son and Daughter each had a 30% share of stock in the Company. Father testified he stopped giving his and Mother’s shares in the Company to Son when Son brought this lawsuit.

In 2006, Son wanted to open an additional location. He and a friend along with Daughter owned the store, called Mason Tire & Auto Service, through an entity called BCJ Tires, LLC. The Company owned the property and building and leased it to BCJ Tires. The Company had no ownership interest in BCJ Tires. On August 3, 2007, Son transferred $93,500 from the Company to BCJ Tires without Mother or Father’s knowledge. When Father learned about the money, he had Son and Daughter transfer their interests in BCJ Tires to the Company. Accountant later acquired Son’s friend’s shares and some of the Company’s shares, resulting Accountant owning a majority interest in BCJ Tires. The store operates at a loss.

An employee for the Company testified that at times, Son did not come to work and gave no explanation. Father testified Son had been absent from the business several times and no one knew where he was. Daughter also testified Son *42would sometimes “walk off the job” but he was always allowed to return. Father indicated he convened an emergency shareholder meeting because of Son’s unexplained absences. Son testified he had sometimes worked from home but always had been in touch with the Company and never had stopped running the Company.

On August 18, 2007, Son offered to purchase all but 5% of Daughter’s 25% interest in the Company for $625,000 or to sell 25% of his interest in the Company for $987,500. He testified they had numerous discussions about different options of shareholders being bought out because they were not getting along. He testified he offered Daughter $1 million for her shares, but she turned it down. Son then requested Father buy his shares, but Father turned him down. Son indicated Father told him if he was unhappy he could quit. Daughter also offered Son $1 million for his shares, but according to Son, the offer later “evaporated.”

On August 31, 2007, attorney Wayne Byrd sent a letter to the Masons advising them he had been retained by Son to represent his interests as an officer, director, and minority shareholder in the Company. On September 17, 2007, following a meeting with the parties, Byrd sent a letter to the Masons’ attorney ordering them to stop paying for the members’ personal expenses, reduce Daughter’s salary, and terminate Ozzie. Byrd also sent a letter to Accountant indicating he had learned of “various serious financial and tax accounting irregularities which [he] ha[d] devised and fashioned.” All of the shareholders except Son signed an agreement to repay the Company for personal expenses. Son testified he refused to sign it because previously, all the shareholders had approved those expenses. On September 28, 2007, Byrd’s law firm refunded the Company for the Company’s check Son had used to pay his fee because it was representing him individually. However, Son then transferred to himself from the Company the amount he owed Byrd, $17,301.66.

On October 24, 2007, a shareholders meeting was held, and Father was elected president and Son was elected vice president. Son was no longer in charge of the financial aspects of the Company but his salary and other responsibilities remained the same. Son continued working until July 2008.

*43On December 7, 2007, the Company held a shareholders meeting to sign the amended tax returns. Accountant testified Son insisted the amended tax returns not be filed and the Masons went along with it despite their unhappiness about it. Father testified that at the meeting Son stated that if they would not file those amended tax returns and instead handled it another way, he would stay with the Company and Father agreed. Son testified that at the meeting, the Masons were screaming at him and he said the Company should do whatever was necessary to fix the tax returns. Son testified Accountant stated the Company could fix the returns by doing something else with the revenue instead of amending the returns. Son testified he knew of the amended tax returns but did not see them before he brought the lawsuit.

In December 2007, Son told Father that Steve Allison offered to buy the Company for $3 million. Father testified he did not consider it a serious offer because he did not believe Allison knew any details about the Company. Father indicated he called Allison and informed him he was not interested in selling the Company at that time. Allison testified he was president of a company that owned car oil change shops and in December 2007 he was interested in buying the Company based on his observations of the Company over thirteen years. Allison offered $3 million because Son believed from prior conversations with Father he would accept that amount.

Sandra Adams worked as a bookkeeper for the Company. In July 2008, Son determined from some discrepancies in the monthly payments for an insurance policy Adams was stealing from the Company and informed Father and Daughter he was going to fire her. Father testified he and Daughter expressed concern that Son not fire her right away due to the workload it would place on Daughter until Adams could be replaced. Son stated that he was going to do the firing immediately, and Father said he would support him. Son fired Adams, but Father decided to rehire Adams because he thought they needed to look into the matter further. Father indicated that when he told Son, Son said, “I’ll bury you.” Father rehired Adams and put her on probation. He testified it was unproven whether Adams was stealing and she was still employed by the Company. The special referee found Father’s testimony *44on the matter credible and determined Father’s “actions were consistent with the Company’s best interest and the decision was a valid business judgment.”

On August 5, 2008, Son filed a complaint against the Masons and the Company, asserting causes of action for breach of contract, breach of fiduciary duty, civil conspiracy, relief pursuant to sections 33-14-300 to -330 of the South Carolina Code1, wrongful termination of employment-constructive discharge, and wrongful termination-violation of public policy. On September 23, 2009, Son filed an amended complaint adding Accountant as a defendant and adding a cause of action against him for aiding and abetting breach of fiduciary duty. The Masons and the Company filed an answer asserting affirmative defenses and counterclaims against Son for breach of fiduciary duty and conversion.2 The parties consented to the case being referred to the special referee. The special referee conducted a five-day trial on the case.

The conversion counterclaim was based on an alleged casing 3 scheme. Son testified he would fabricate the name of a company, write a receipt for truck tires from that company, and take cash out of the drawer in that amount. He indicated he would later split that money with Daughter. He testified Accountant told him this was acceptable as long as he split the money with Daughter. Accountant testified he did not tell Son how to create fictitious invoices. An employee of the Company testified that between 2003 and 2007 he had noticed cash missing from the drawer and an invoice for casings but there were no casings. He testified he noticed Son taking money out of the cash drawer and would see the invoice audit at the end of the day.

In 2003 and 2006, Son made adjustments to the records for the Company that increased the inventory and created a corresponding credit note payable to Son and Daughter. The note for 2003 was $440,000 and for 2006 it was $300,000. Son *45and Ozzie signed the 2003 note and it was witnessed by Mother and Father. Daughter did not sign either note and testified she did not know about the notes until Son asked her in 2007 to sign two promissory notes and she refused. Son indicated the family all knew about the inventory adjustments and it was Accountant’s idea to decrease the Company’s tax liability. Accountant testified he told Son about both the proper way to fix the inventory problem and the way he ultimately handled it. Accountant testified Son decided to make the 2003 adjustment in order to decrease the Company’s tax liability. Accountant testified that at the time, only Son and himself knew about the 2003 adjustment and Accountant did not know about the 2006 adjustment until after Son had made it. Son testified he had relied on Accountant’s advice that the adjustments were proper and he did not know about the “severity” of the adjustments until Byrd informed him. Laura Durant, a CPA retained by the Masons and the Company for trial, testified the adjustments had no basis in reality and had a significant effect on the income tax returns. Son testified he signed the tax returns from 1984 until 2007, specifically in 2003 and 2006. Son testified he did not know the tax returns were fraudulent because he relied on Accountant and he did not think the Masons knew the returns were fraudulent until 2007. Accountant testified he did not tell the Masons the tax returns were fraudulent. He testified he accepted the way Son had handled the excess inventory and filed the tax returns because of his close relationship with the family. The special referee found Accountant’s testimony regarding making inventory adjustments and creating fictitious notes substantially more credible than Son’s despite the fact that his filing of the tax returns was professionally inappropriate.

David Timothy Duncan, an accountant hired by the Company, testified he was involved with reviewing amended tax returns for the Company in 2007. He decided to not file the amended returns and returned them to Accountant. Duncan testified that while he was considering the amended returns, Son talked to him about inventory adjustments and Duncan advised him against it.

Son testified no one fired him, told him not to come back, or cut his pay. He found working at the Company intolerable *46and thought the other shareholders wanted him to quit. He stated that although the Company did not reduce his pay or benefits, the Masons embarrassed him in front of other employees.

The special referee found for Respondents on all of Son’s causes of action.4 The special referee found “it is beyond dispute in my opinion that Son was aware of and actively engaged in and furthered the very practices about which his attorney[’s] September 17, 2007 letter complains and which form the basis of some of the claims in this action.” The special referee also determined nothing in the record indicated the Masons deviated from the appropriate standard of conduct. The special referee determined nothing indicated the Masons’ conduct towards Son was oppressive or unfairly prejudicial and they had not breached their fiduciary duty. The referee further found because Son presented no evidence of a breach by the Masons, his claim for his shares to be repurchased must fail. He found,

Son’s dissatisfaction with his lack of employment by [the] Company, as well as with diminution of the value of his shares due to significant tax liability and the unfortunate business decision to expand the Company’s operation ... are matters that were principally due to and occasioned by the conduct and decisions of Son.

He noted that Son’s request for his shares to be purchased was an equitable one and Son’s unclean hands from his conduct prevented him from relying on an action for stockholder oppression or breach of fiduciary duty.

The special referee found “[t]he inaccuracies in the tax returns and any damages that flow from these falsities would affect the corporation in its entirety, not Son specifically. Therefore, Son’s suit was improper in that it was not filed as a derivative action.” The special referee also stated, “Contrary to the holding in Brown v. Stewart [5], Son has sued ... *47Father, Mother[,] and [Daughter] under [sections 33-8-300 and -420 of the South Carolina Code (2006) ].”

The special referee found for the Masons and the Company on their counterclaims for conversion regarding the casings scheme and Son’s payment of his attorney’s fees and awarded them $11,716.32 and $17,301.66 respectively. The special referee determined the cause of action for damages arising from the filing of false tax returns was not ripe for adjudication because the amount of damages was undetermined at the time.

Son filed a Rule 59(e), SCRCP, motion, requesting the special referee delete or clarify the portion of the order relating to the counterclaim regarding the tax obligations. The special referee denied the motion. This appeal followed.

STANDARD OF REVIEW6

“[A]n appellate court must look to the main purpose of the proceeding in order to determine the standard of review to exact.” Wheeler v. Estate of Green, 381 S.C. 548, 554, 673 S.E.2d 836, 839-40 (Ct.App.2009). “The character of the action is generally ascertained from the body of the complaint, but when necessary, resort may also be had to the prayer for relief and any other facts and circumstances which throw light upon the main purpose of the action.” Sloan v. Greenville Cnty., 380 S.C. 528, 534, 670 S.E.2d 663, 666-67 (Ct.App.2009). “When legal and equitable actions are maintained in one suit, the court is presented with a divided scope of review, and each action retains its own identity as legal or equitable for pur*48poses of review on appeal.” Wright v. Craft, 372 S.C. 1, 17, 640 S.E.2d 486, 495 (Ct.App.2006). “The proper analysis is to view the actions separately for the purpose of determining the appropriate standard of review.” Id. at 17-18, 640 S.E.2d at 495.

LAW/ANALYSIS

I. Judicial Dissolution/Repurchase of Shares

Son argues the special referee erred in denying him relief under the judicial dissolution provisions governing South Carolina corporations. He asserts the special referee should have ordered a buyout of his shares. We disagree.

“Under the two[-]issue rule, whe[n] a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unap-pealed ground will become the law of the case.” Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010).

It should be noted that although cases generally have discussed the two[-]issue rule in the context of the appellate treatment of general jury verdicts, the rule is applicable under other circumstances on appeal, including affirmance of orders of trial courts. For example, if a court directs a verdict for a defendant on the basis of the defenses of statute of limitations and contributory negligence, the order would be affirmed under the two[-]issue rule if the plaintiff failed to appeal both grounds or if one of the grounds required affirmance.

Id. at 346, 692 S.E.2d at 904 (internal quotation marks omitted). “[A]n unappealed ruling, right or wrong, is the law of the case.” Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012).

“A corporate dissolution is an action in equity.” Jordan v. Holt, 362 S.C. 201, 205, 608 S.E.2d 129, 131 (2005). “A shareholders derivative action, as well as an action for stockholder oppression, is one in equity.” Ballard v. Roberson, 399 S.C. 588, 593, 733 S.E.2d 107, 109 (2012) (internal quotation marks omitted). “In actions in equity referred to a special referee with finality, the appellate court may view the evidence to determine the facts in accordance with its own view of the preponderance of the evidence, though it is not required to disregard the findings of the special referee.” *49Florence Cnty. Sch. Dist. # 2 v. Interkal, Inc., 348 S.C. 446, 450, 559 S.E.2d 866, 868 (Ct.App.2002); see also First Union Nat’l Bank of S.C. v. Soden, 333 S.C. 554, 567, 511 S.E.2d 372, 379 (Ct.App.1998) (“[W]e are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to judge their credibility.”).

Sections 33-18-400 to -430 of the South Carolina Code (2006) apply to close corporations.

(a) Subject to satisfying the conditions of subsections (c) and (d), a shareholder of a statutory close corporation may petition the circuit court for any of the relief described in [sjection 33-18-410, 33-18-420, or 33-18-430 if:

(1) the directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, fraudulent, or unfairly prejudicial to the petitioner, whether in his capacity as shareholder, director, or officer of the corporation;

... or

(3) there exist grounds for judicial dissolution of the corporation under [sjection 33-14-300[ 7j.

(b) A shareholder must commence a proceeding under subsection (a) in the circuit court of the county where the corporation’s principal office or, if none in this State, its registered office is located. The jurisdiction of the court in which the proceeding is commenced is plenary and exclusive.

(c) If a shareholder has agreed in writing to pursue a nonjudicial remedy to resolve disputed matters, he may not commence a proceeding under this section with respect to the matters until he has exhausted the nonjudicial remedy.

S.C.Code Ann. § 33-18-400 (2006).

(a) If the court finds that any grounds for relief described in [sjection 33-18-400(a) exist, it may order one or more of the following types of relief:

*50(1) the performance, prohibition, alteration, or setting aside of any action of the corporation or of its shareholders, directors, or officers of or any other party to the proceeding;

(2) the cancelation or alteration of any provision in the corporation’s articles of incorporation or bylaws;

(3) the removal from office of any director or officer;

(4) the appointment of any individual as a director or officer;

(5) an accounting with respect to any matter in dispute;

(6) the appointment of a custodian to manage the business and affairs of the corporation;

(7) the appointment of a provisional director who has all the rights, powers, and duties of an elected director to serve for the term and under the conditions prescribed by the court;

(8) the payment of dividends;

(9) the award of damages to any aggrieved party.

(b) If the court finds that a party to the proceeding acted arbitrarily, vexatiously, or otherwise not in good faith, it may award other parties their reasonable expenses, including counsel fees and the expenses of appraisers or other experts, incurred in the proceeding.

S.C.Code Ann. § 33-18-410 (2006).

(a) If the court finds that the ordinary relief described in [sjection 33-18-410(a) is or would be inadequate or inappropriate, it may order the corporation dissolved under [sjection 33-18-430 unless the corporation or one or more of its shareholders purchase all the shares of the shareholder for their fair value and on terms determined under subsection

(b).

(b) If the court orders a share purchase, it shall:

(1) determine the fair value of the shares, considering among other relevant evidence the going concern value of the corporation, any agreement among some or all of the shareholders fixing the price or specifying a formula for determining share value for any purpose, the recommendations of any appraisers appointed by the court, and any legal constraints on the corporation’s ability to purchase the shares;

*51(2) specify the terms of the purchase, including, if appropriate, terms for installment payments, subordination of the purchase obligation to the rights of the corporation’s other creditors, security for a deferred purchase price, and a covenant not to compete or other restriction on the seller;

(3) require the seller to deliver all his shares to the purchaser upon receipt of the purchase price or the first installment of the purchase price;

(4) provide that after the seller delivers his shares he has no further claim against the corporation, its directors, officers, or shareholders, other than a claim to any unpaid balance of the purchase price and a claim under any agreement with the corporation or the remaining shareholders that is not terminated by the court;

(5) provide that, if the purchase is not completed in accordance with the specified terms, the corporation is to be dissolved under [sjection 33-18-430; and

(6) provide that the corporation or remaining shareholders release or enter into an agreement to indemnify the seller from any personal liability for obligations of the corporation the seller has personally guaranteed.

S.C.Code Ann. § 33-18-420 (2006).

(a) The court may dissolve the corporation if it finds:

(1) there are grounds for judicial dissolution under [sjection 33-14-300; or

(2) all other relief ordered by the court under [sjection 33-18-410 or 33-18-420 has failed to resolve the matters in dispute.

(b) In determining whether to dissolve the corporation, the court shall consider among other relevant evidence the financial condition of the corporation but may not refuse to dissolve solely because the corporation has accumulated earnings or current operating profits.

S.C.Code Ann. § 33-18-430 (2006).

In Kiriakides v. Atlas Food Systems & Services, Inc., 343 S.C. 587, 541 S.E.2d 257 (2001), [the supreme court] established how a court should determine whether majority shareholders have acted oppressively within the meaning of section 33-14-300.... In establishing the proper consider*52ations for finding oppression, [the court] observed that the terms oppressive and unfairly prejudicial are elastic terms whose meaning varies with the circumstances presented in a particular case. [The court] also noted this was a fact-sensitive review and should therefore be determined through a case-by-case analysis, supplemented by various factors which may be indicative of oppressive behavior. Although [the court] declined to set out specific factors in Kiriakides, [it] observed several commonly considered ones including: eliminating minority shareholders from directorate and excluding them from employment[,] ... failure to enforce contracts for the benefit of the corporation^ and] withholding information from minority shareholders.

Ballard, 399 S.C. at 594, 733 S.E.2d at 110 (second omission by court) (citations and internal quotation marks omitted).

In Ballard, the court noted that the minority shareholder, “like [the minority shareholders] in Kiriakides, similarly faces prospects of exclusion from the business, a slim chance of seeing a return any time soon, and no market in which to otherwise unload his investment.” Id. at 595, 733 S.E.2d at 110. The court noted, “This result is especially significant because returns on investment in close corporations often accrue incident to employment with the corporation as opposed to through dividends.” Id. at 596-97, 733 S.E.2d at 111 (citing Douglas K. Moll, Shareholder Oppression in Close Corporations: The Unanswered Question of Perspective, 53 Vand. L.Rev. 749, 758 (Apr.2000) (noting that “the close corporation investor typically looks to salary rather than dividends for a share of the business returns because the (e)arnings of a close corporation often are distributed in major part in salaries, bonuses and retirement benefits” (internal quotation marks omitted))).

Common freeze out techniques include the termination of a minority shareholder’s employment, the refusal to declare dividends, the removal of a minority shareholder from a position of management, and the siphoning off of corporate earnings through high compensation to the majority shareholder. Often, these tactics are used in combination. In a public corporation, the minority shareholder can escape such abuses by selling his shares; there is no such market, however, for the stock of a close corporation. The primary *53vulnerability of a minority shareholder is the specter of being locked in, that is, having a perpetual investment in an entity without any expectation of ever receiving a return on that investment.

Kiriakides, 343 S.C. at 604-05, 541 S.E.2d at 267 (footnotes, citations, and internal quotation marks omitted).

“The application of these grounds for dissolution to specific circumstances obviously involves judicial discretion in the application of a general standard to concrete circumstances.” Id. at 598, 541 S.E.2d at 263 (internal quotation marks omitted). “The court should be cautious in the application of these grounds so as to limit them to genuine abuse rather than instances of acceptable tactics in a power struggle for control of a corporation.” Id. (internal quotation marks omitted).

Although the terms oppressive and unfairly prejudicial are not defined in section 33-14-300, the comment to [section] 33-18-400 [of the South Carolina Code] (1990), which allows shareholders in a statutory close corporation to petition for relief on the grounds of oppressive, fraudulent, or unfairly prejudicial conduct provides:

No attempt has been made to define oppression, fraud, or unfairly prejudicial conduct. These are elastic terms whose meaning varies with the circumstances presented in a particular case, and it is felt that existing case law provides sufficient guidelines for courts and litigants.

Kiriakides, 343 S.C. at 598, 541 S.E.2d at 263-64 (internal quotation marks omitted). “[I]llegal or fraudulent conduct is not required under section 33 — 14—300(2)(ii)_The concern and focus in shareholder oppression cases is that the minority faces a trapped investment and an indefinite exclusion [from] participation in business returns.” Ballard, 399 S.C. at 595, 733 S.E.2d at 110 (last alteration by court) (internal quotation marks omitted). “Prior to 1963, dissolution could be based only upon illegal, fraudulent or oppressive conduct. In an attempt to afford minority shareholders greater protection, the legislature amended the statute in 1963 to include unfairly prejudicial conduct.” Kiriakides, 343 S.C. at 597 n. 17, 541 S.E.2d at 263 n. 17 (internal quotation marks omitted). “The statute, as amended, broadens the scope of actionable conduct *54by providing the frozen-out minority shareholder a right of action based on conduct by the majority shareholders which might not rise to the level of fraud.” Id. (internal quotation marks omitted).

The Kiriakides court found:

[W]e do not believe the Legislature intended a court to judicially order a corporate dissolution solely upon the basis that a party’s reasonable expectations have been frustrated by majority shareholders. To examine the reasonable expectations of minority shareholders would require the courts of this state to microscopically examine the dealings of closely held family corporations, the intentions of majority and minority stockholders in forming the corporation and thereafter, the history of family dealings, and the like. We do not believe the Legislature, in enacting section 33-14-300, intended such judicial interference in the business philosophies and day to day operating practices of family businesses.

Id. at 599, 541 S.E.2d at 264 (internal quotation marks omitted).

[S]ection 33-14-300 does not place the focus upon the rights or interests of the complaining shareholder but, rather, specifically places the focus upon the actions of the majority, i.e., whether they have acted, are acting, or will act in a manner that is illegal, fraudulent, oppressive, or unfairly prejudicial either to the corporation or to any shareholder. Given the language of our statute, a reasonable expectations approach is simply inconsistent with our statute.

Kiriakides, 343 S.C. at 600, 541 S.E.2d at 265 (internal quotation marks omitted).

“When this court is sitting in equity, and thus viewing evidence for its preponderance, we are to consider the equities of both sides, balancing the two to determine what, if any, relief to give.” Anderson v. Buonforte, 365 S.C. 482, 493, 617 S.E.2d 750, 755 (Ct.App.2005). “The doctrine of unclean hands precludes a plaintiff from recovering in equity if he acted unfairly in a matter that is the subject of the litigation to the prejudice of the defendant.” Soden, 333 S.C. at 568, 511 S.E.2d at 379. “He who comes into equity must come with clean hands. It is far more than a mere banality. It is a self-*55imposed ordinance that closes the door of the court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.” Emery v. Smith, 361 S.C. 207, 220, 603 S.E.2d 598, 605 (Ct.App.2004) (internal quotation marks omitted). “The decision to grant equitable relief is in the discretion of the trial judge.” Soden, 333 S.C. at 568, 511 S.E.2d at 379. “[T]he equitable defense of unclean hands is available in a shareholder derivative action.” Straight v. Goss, 383 S.C. 180, 207,