James v. James

CourtSupreme Court of Alabama
Writing for the CourtHOUSTON, Justice.
Citation768 So.2d 356
PartiesThomas JAMES v. Jerry JAMES.
Decision Date28 January 2000

768 So.2d 356

Thomas JAMES
v.
Jerry JAMES

1980522.

Supreme Court of Alabama.

January 28, 2000.1

Rehearing Denied April 7, 2000.


768 So.2d 357
J. Doyle Fuller, Montgomery; I. Ripon Britton, Jr., of Hand Arendall, L.L.C., Birmingham; and John D. Clement, Jr., Tuscumbia, for appellant

B. Glenn Murdock and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; Andrew P. Campbell of Campbell, Waller & McCallum, L.L.C., Birmingham; and Steve A. Baccus of Almon, McAlister, Baccus & Hall, L.L.C., Tuscumbia, for appellee.

HOUSTON, Justice.

Jerry James and his brother Thomas were business partners. Jerry sued Thomas, alleging, individually, claims of "oppression/squeeze out" and "suppression," and alleging, on behalf of Indies House, Inc., of which he was a minority shareholder, breach of fiduciary duty. Thomas counterclaimed derivatively on behalf of Franklin Homes, Inc., of which he was a minority shareholder, claiming breach of fiduciary duty, oppression, and suppression. After a trial, the jury returned the following verdict: "[We], the jury, find for the plaintiff and against the defendant and assess the plaintiff's damages at compensatory $4,213,283.10." (Punitive -0-; Total $4,213,283.10.) "[We] further find in favor of the plaintiff against

768 So.2d 358
the defendant on the counterclaim." That amount included 10% as either prejudgment interest or lost profits. The court entered a judgment on that verdict. The trial court later awarded Jerry an attorney fee of $445,000. Thomas appealed. We affirm in part, reverse in part, and remand

Jerry is the majority shareholder in Franklin Homes, Inc., owning 57% of the stock; Thomas is one of three minority shareholders and owns 31.11% of the stock. Thomas was the majority shareholder of Indies House, Inc., owning 56% of the stock, while Jerry was one of two minority shareholders and held 41.5% of the stock. The stock in both corporations had been held by the James family since their incorporation, and Jerry and Thomas were involved in each of the corporate businesses. The record shows that the Indies House corporation was having financial troubles and that it was sold during the trial.

At trial, Jerry introduced evidence indicating that Thomas had paid himself excessive salaries, had paid members of his family excessive salaries, had bought automobiles for his children with corporate funds, and had used excess corporate cash to finance loans and had personally retained the interest paid on those loans. Jerry argued that the amount that he received from the liquidation (sale) of Indies House was less than it should have been, because of Thomas's mismanagement and theft. Jerry's expert suggested an amount of damages by taking the total amount Thomas claimed to have lost by each act of wrongdoing and multiplying it by .415— Jerry's interest in Indies House being 41.5%. He then totaled these amounts, for the sum of approximately $5,000,000; the jury awarded $4,213,283.10.

Thomas raises a number of issues. They can be combined into four: (1) Were all of the claims that Jerry makes actually derivative claims, and can Jerry individually collect on derivative claims? (2) Did Jerry make an adequate presuit demand to Indies House? (3) Was the award of an attorney fee proper? (4) Did the trial court err in allowing the jury to consider a 10% addition to Jerry's compensatory damages as either prejudgment interest or lost profits?

First, we deal with the issue whether all of Jerry's claims were derivative claims, or whether some can be considered individual claims. Jerry made certain derivative claims: that Thomas (1) had wasted corporate assets; (2) had paid excessive compensation to himself and his family; (3) had illegally usurped corporate opportunities; and (4) had unjustly enriched himself at the expense of Indies House. He also made individual claims of "oppression/squeeze out" and fraudulent suppression, based on Thomas's alleged misconduct and breach of a fiduciary duty to Jerry. Thomas contends that all of these claims are really derivative claims and, therefore, that if any damages are awarded for them, then Indies House, not Jerry, is entitled to them.

This Court has held that majority shareholders in a close corporation owe a duty to act fairly toward minority shareholders. Stallworth v. AmSouth Bank of Alabama, 709 So.2d 458, 467 (Ala.1997); Burt v. Burt Boiler Works, 360 So.2d 327, 331 (Ala.1978). However, it has also held that when a plaintiffs status as a shareholder is essential to his claims for damages, including damages based on claims of suppression and oppression, the claims are derivative claims and must be brought on behalf of the corporation. Pegram v. Hebding, 667 So.2d 696, 702 (Ala.1995); McLaughlin v. Pannell Kerr Forster, 589 So.2d 143 (Ala.1991). Therefore, "a minority shareholder cannot parlay a wrong committed primarily against the corporation, which gives rise to a derivative claim only, into a personal recovery of damages under a squeeze-out theory by simply stating that the injury to the corporation is also `unfair' to him as well." Stallworth, 709 So.2d at 467.

768 So.2d 359
Jerry made claims for individual damages based on the harm he says was done to Indies House. The cause of this harm was Thomas's alleged mismanagement of Indies House. Therefore, any claims made by Jerry should have been derivative claims. The trial court gave the jury instructions indicating that the plaintiff was claiming both individually and on behalf of Indies House. The verdict awarding Jerry over $4,000,000 was a general verdict simply "for the plaintiff and against the defendant." Because all of the claims were in fact derivative claims, all of the damages ordinarily would have been awarded to Indies House. However, the trial court recognized in its order of September 4, 1998, that Indies House was to be liquidated; the 41.5% share of the corporation that Jerry owned was placed in trust

Apparently, this liquidation was followed by some kind of merger with, or buy out by, IH Corporation. An action containing a party involved in a merger or share exchange may continue with that party, or the surviving party may be substituted for that party. Ala.Code 1975, § 10-2B-11.06. Here, the action continued on behalf of Indies House. However, the liquidation leaves the question who should receive the damages awarded. Because Jerry had no valid individual claims, all of the damages should normally be awarded to Indies House,...

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26 practice notes
  • IN RE SHARPE, Bankruptcy No. 03-04644-BGC-13.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • 26 Enero 2010
    ...a common fund from which counsel fees may be made. Id. at 450. Justice J. Gorman Houston Jr. explained in more detail in James v. James, 768 So.2d 356 (Ala.2000). He The "American Rule" of awarding attorney fees has been that a party must pay his own attorney's fee, and in the vas......
  • Hale v. 4tdd.Com, Inc. (Ex parte 4tdd.om, Inc.), 1180262
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 2020
    ...of their argument that Hale's claims are derivative as to BAN, 4tdd, Martin, and MACC cite this Court's decisions in James v. James, 768 So. 2d 356 (Ala. 2000) ; Stallworth, supra ; Altrust Fin. Servs., Inc. v. Adams, 76 So. 3d 228 (Ala. 2011) ; and Pegram, supra.In James, a minority shareh......
  • Davis v. Dorsey, Civil Action No. 2:06cv766-MHT.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 6 Julio 2007
    ...if possible. However, if the demand on the directors would be futile, then the demand requirement is excused." James v. James, 768 So.2d 356, 360 (Ala. 2000); cf. 5 James Wm. Moore, Moore's Federal Practice § 23.1.04[2] (3d ed.2007) (federal courts interpret Rule 23.1 in accordance wit......
  • Ex parte 4tdd.com, Inc., 1180262
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 2020
    ...of their argument that Hale's claims are derivative as to BAN, 4tdd, Martin, and MACC cite this Court's decisions in James v. James, 768 So. 2d 356 (Ala. 2000); Stallworth, supra; Altrust Fin. Servs., Inc. v. Adams, 76 So. 3d 228 (Ala. 2011); and Pegram, supra. In James, a minority sharehol......
  • Request a trial to view additional results
26 cases
  • IN RE SHARPE, Bankruptcy No. 03-04644-BGC-13.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • 26 Enero 2010
    ...a common fund from which counsel fees may be made. Id. at 450. Justice J. Gorman Houston Jr. explained in more detail in James v. James, 768 So.2d 356 (Ala.2000). He The "American Rule" of awarding attorney fees has been that a party must pay his own attorney's fee, and in the vas......
  • Hale v. 4tdd.Com, Inc. (Ex parte 4tdd.om, Inc.), 1180262
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 2020
    ...of their argument that Hale's claims are derivative as to BAN, 4tdd, Martin, and MACC cite this Court's decisions in James v. James, 768 So. 2d 356 (Ala. 2000) ; Stallworth, supra ; Altrust Fin. Servs., Inc. v. Adams, 76 So. 3d 228 (Ala. 2011) ; and Pegram, supra.In James, a minority shareh......
  • Davis v. Dorsey, Civil Action No. 2:06cv766-MHT.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 6 Julio 2007
    ...if possible. However, if the demand on the directors would be futile, then the demand requirement is excused." James v. James, 768 So.2d 356, 360 (Ala. 2000); cf. 5 James Wm. Moore, Moore's Federal Practice § 23.1.04[2] (3d ed.2007) (federal courts interpret Rule 23.1 in accordance wit......
  • Ex parte 4tdd.com, Inc., 1180262
    • United States
    • Supreme Court of Alabama
    • 27 Marzo 2020
    ...of their argument that Hale's claims are derivative as to BAN, 4tdd, Martin, and MACC cite this Court's decisions in James v. James, 768 So. 2d 356 (Ala. 2000); Stallworth, supra; Altrust Fin. Servs., Inc. v. Adams, 76 So. 3d 228 (Ala. 2011); and Pegram, supra. In James, a minority sharehol......
  • Request a trial to view additional results

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