Broski v. Jones
| Decision Date | 30 March 1981 |
| Docket Number | No. WD,WD |
| Parties | Judith A. BROSKI, Appellant, v. Harold K. JONES et al., Respondents. 31365. |
| Court | Missouri Court of Appeals |
John H. Trader, Burke, Hoffman & Millin, Kansas City, for appellant.
Guy G. Rice, Independence, for respondents.
Before DIXON, P. J., WASSERSTROM, C. J., and NUGENT, J.
Plaintiff, as a minority stockholder in Santa Fe Real Estate Corporation, filed suit against four named defendants who are stockholders and directors of Santa Fe. The petition alleged that plaintiff "brings this action derivatively in her own behalf and on behalf of all other stockholders of the Corporation similarly situated who may join herein and contribute to the expense hereof, of the Corporation and for its benefit." Defendants filed a motion to dismiss which was sustained by the trial court. Plaintiff appeals. We affirm.
The Points Relied On in plaintiff's brief before this court wholly fail to comply with Rule 84.04(d), and her statement of facts is woefully inadequate to comply with Rule 84.04(c), thereby immensely increasing the difficulty of determining this appeal. Those briefing defects aggravate the problem caused by the pleadings and proceedings in the trial court which were unconventional to put it mildly. Notwithstanding the noncompliance with the Supreme Court Rules, which would justify striking the appellant's brief and dismissing the appeal, we nevertheless as a matter of grace have undertaken to review this appeal as best we can.
The petition, the attached exhibits and the various documents submitted by the defendants as attachments to their motion to dismiss, combine to disclose the following situation. Santa Fe was incorporated in September 1975, pursuant to an incorporators' agreement which required that all stockholders have a Missouri real estate salesman's or broker's license which were to be placed under the control of the corporation's principal broker. That agreement provided in this respect: "If at any time, stockholder removes license from control by the broker of said real estate corporation, whether voluntarily or involuntarily, the stock held by said stockholder shall be sold back to the corporation as a body."
As part of the original arrangement, defendant Harold K. Jones was designated as President and D. P. Brockman as Secretary and General Manager. Those two individuals entered into written contracts with the corporation under which they were each to be paid a sum equal to 5% of the gross commissions collected by the corporation. Each agreement provided that the contracting employee could terminate the contract on thirty days notice.
Plaintiff became a stockholder in the corporation in November 1975. At that time she signed a Stock Redemption Agreement which provided that she should immediately surrender all of her stock in the event of the withdrawal of her Missouri real estate license from the control of the principal broker appointed by the Board of Directors of Santa Fe.
In the spring of 1976, the corporation renegotiated the compensation arrangement with Jones and Brockman. Under the revised agreement, Jones was to receive 9% of the corporation's gross receipts and Brockman was to receive 7%. Additionally, Jones and Brockman thereafter received bonuses, and Jones received certain perquisites in the form of a leased automobile, a hospitalization plan, a leased apartment and leased furniture.
By the summer of 1979, disputes came to a head between plaintiff and the corporation. On July 11, her lawyer wrote to the corporation's lawyer demanding that the corporation take action to require the defendant officers to refund all unauthorized funds alleged by plaintiff to have been improperly expended by the corporation to or on behalf of said officers, and that the corporation engage a certified public accountant to conduct an audit of the financial affairs of the corporation. In response to that letter, a stockholders' meeting was held on July 26, 1979. Each of plaintiff's complaints was taken up and voted upon. 30,500 shares were represented at the meeting by stockholders in person or by proxy, out of 34,452 shares outstanding. In each instance, plaintiff was the only shareholder voting in support of her complaint, although one or more shareholders abstained as to each proposition. Another stockholders' meeting was then held on August 23, 1979, at which plaintiff was removed as a director and a resolution was adopted calling upon the Board to demand a return by plaintiff of all her stock certificates under the provisions of the redemption agreement. 1
Those stockholders' meetings were soon followed by the filing of this lawsuit on September 12, 1979. Plaintiff's petition was in two counts. The first count alleged more or less the facts as set forth above. Plaintiff further alleged that the increased percentage payments to Jones and Brockman the bonuses to them and the perquisites furnished Jones were excessive. Plaintiff further alleged that the other two defendants permitted the excessive payments to Jones and Brockman and improperly permitted miscomputations of compensation and negligently failed to take adequate steps to insure the proper computation. Count I concluded with a prayer that the defendants be required to refund to the corporation the payments mentioned to Jones and Brockman.
Count II of the petition adopted all the allegations of Count I and went on to allege the repurchase provisions of the Stockholders Agreement and of the redemption agreement between plaintiff and the corporation. Count II then proceeds to allege that the corporation will not be in a position to compute...
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