128 B.E.T.R. [Vol. 2 2018
on March 30, 2006; and he received Sandpiper’s tax returns and the management contracts be-
tween CCMS and Sandpiper on April 6, 2006. However, Gosman testified that he did not receive
depreciation registers from Sandpiper until the week of the August 14, 2006 trial. Gosman fur-
ther testified to the following:
Q: [Shioleno’s counsel]: Had you had access to the books and records and the computer
files when you were down here [Corpus], would it have been necessary for a work effort,
I’ll call it, by CCMS to gather this stuff and copy it and give it to you?
A: [Gosman]: Well, no. That was the basis for my being here, was to ease the effort to pro-
duce this information. If the information is right there in a file cabinet, then it’s very simple
to say, “Well, the information is right there.” “If you want copies, fine. We’ll make you cop-
ies, you can make copies, but the information is right there.” See, the books and records that
we asked for are what’s kept in the normal course of business. It’s nothing that needs to be
newly created or pulled out of the ether [sic]. I mean, it’s the books and records that they
have to have to run their own business for their own financial reporting. So we aren’t asking
them to create anything, we were just simply asking access to what they already had. Q:
And I believe you testified before that you were denied that access?
A: In part, yes.
Q: All right.
A: I am the first one to agree we got a lot of information, but there were some really im-
portant parts left out.
Barbieri testified that he sent an e-mail on April 21, 2006, to John Holmgreen, Sandpiper’s tri-
al counsel, as a last attempt to enforce Shioleno’s inspection rights, requesting that Sandpiper
make the remaining books and records available for inspection. Barbieri noted in the e-mail that
he and Shioleno were in Corpus Christi from April 21 to 22 and that they could easily stop by
Sandpiper’s principal office and conduct the inspection of the remaining books and records. On
April 22, 2006, Holmgreen sent an e-mail to Barbieri granting access to Sandpiper’s remaining
books and records and computer files on Sunday, April 23.
Holmgreen also noted that Shioleno
could inspect Sandpiper’s computer systems on Saturday, April 22, at 10:00 p.m. However,
Barbieri and Shioleno were not able to inspect the records on these dates because they were
scheduled to leave Corpus Christi prior to 10:00 p.m. on April 22, as Barbieri had stated in his e-
mail to Holmgreen.
Then, on June 15, 2006, Holmgreen sent Barbieri another letter noting that Sandpiper had grant-
ed Shioleno access to the remaining books and records and computer systems from “Monday,
June 19, 2006, and continuing until Friday, June 23, 2006, from 8:30 a.m. until 5:00 p.m.”
Holmgreen further noted that “[t]he records to which this response applies are the records de-
scribed in ¶ 15 of Mr. Gosman’s communication of March 27, 2006, and ¶ ¶ 7, 8, and 12 of your
letter of April 21, 2006,” indicating that Sandpiper still had not complied with Shioleno’s initial
requests for inspection of its books and records.
Sandpiper relies heavily on an e-mail sent by Barbieri to Holmgreen on August 10, 2006, stat-
ing that the parties should arrange to inspect the computers and computer files at Sandpiper and
CCMS after the bench trial on August 14, 2006. Sandpiper argues that this statement confirms
“yet another of Appellee’s repeated offers, prior to the hearing, to have Appellants inspect its
computer systems.” (Emphasis in original.) On appeal, Sandpiper notes that on three separate oc-
casions, Shioleno was granted access to inspect its books and records: April 22, June 15, and
August 10.
While it appears Sandpiper tried to accommodate Shioleno’s schedule, in the end, according to
Barbieri’s August 10, 2006 e-mail, Sandpiper still had not produced much of the requested in-
formation, including: (1) backup or supporting information for the previously supplied general
ledger entries; (2) fixed asset and depreciation registers for all activity between September 30,
2002, and September 30, 2005; (3) all contracts and agreements involving Sandpiper and the ser-
vices of any employee, contractor, or company from October 2003 to August 2006; (4) all corre-
spondence between Sandpiper board members other than the minutes of the board of Directors[‘]
meetings; (5) all correspondence between Ron Park and Sandpiper from October 2003 to August
2006;
and (6) all work papers provided for the audit of Sand
piper, including the Resort Fund,
from September 30, 2003 through September 30, 2005.
Based on the foregoing, we conclude that Sandpiper failed to comply with section 82.114 of
the property code, article 1396-2.23, and section 3.11 of its own bylaws in making its books and
records available to Shioleno at a reasonable time after Shioleno’s initial request for inspection).
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The Business, Entrepreneurship & Tax Law Review, Vol. 2 [2018], Iss. 1, Art. 6
https://scholarship.law.missouri.edu/betr/vol2/iss1/6