415 S.W.3d 163
Mo. Ct. App.2013Background
- CB3 Enterprises, LLC (Missouri LLC) formed in 1996 to invest in commercial real estate.
- Initial members were Da-mas, Frederick Damas, and Thomas Da-mas; Da-mas was managing member until selling his shares to Frederick Damas.
- After Damas’ departure, CB3 alleged fiduciary duties were breached by Damas.
- Damas counterclaimed for indemnification under CB3’s Articles of Organization and Operating Agreement.
- At trial, CB3 moved for directed verdict on indemnification; the court denied it; the jury found for Damas on fiduciary breach and on indemnification; CB3 moved for JNOV, which the court again denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indemnification applies to this action | CB3 argues Direct Actions provisions bar indemnification. | Damas contends Derivative Actions provisions mandate indemnification. | Derivative Actions indemnification required; JNOV denial affirmed. |
Key Cases Cited
- Exec. Bd. of Mo. Baptist Convention v. Windermere Baptist Conference Ctr., 280 S.W.3d 678 (Mo.App.W.D.2009) (contract interpretation of governing documents as contracts)
- Newco Atlas, Inc. v. Park Range Constr., Inc., 272 S.W.3d 886 (Mo.App.W.D.2008) (contract interpretation; governing documents treated as contracts)
- Thiemann v. Columbia Pub. Sch. Dist., 338 S.W.3d 835 (Mo.App.W.D.2011) (plain meaning governs contract terms; avoid ambiguity if plain language clear)
- Baker-Smith Sheet Metal, Inc. v. Bldg. Erection Servs. Co., 49 S.W.3d 712 (Mo.App.W.D.2001) (contract interpretation; ambiguity resolved as matter of law)