July 27, 2009 – Richey E. Clark and Lynova Clark v. Jerrry C. Sims, No. 27,782

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ JULY 27, 2009

NO. 27,782

RICHEY E. CLARK and LYNOVA CLARK,
Plaintiffs-A ppellees,

V.

JERRY C. SIMS,
Defendant-A ppellant,

and

SUNFEATHER REPRODUCTIONS, INC., and
WELLS FARGO HOME MORTGAGE, INC.,

Defendants.

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
Gary M. J effreys, District J udge

Cynthia J. Patterson
Silver City, NM

for Appellees

William Perkins
Silver City, NM

for Appellant

OPINION
FRY, Chief Judge.
{1} 	This case involves an issue of first impression concerning a shareholder’s
standing to bring an individual action against another equal shareholder in a closely
held corporation for a breach of fiduciary duty in the sale of corporate assets. The
district court held that Jerry C. Sims breached his fiduciary duty to equal shareholders
Richey E. Clark and Lynova Clark. Specifically, the district court found that Jerry
Sims did not follow the provisions of NMSA 1978, Section 53-15-2 (1983), in
transferring corporate-owned property to himself and his wife. 	The district court
awarded the Clarks an undivided one-half interest in the property, $5,000 in punitive
damages, 	and 	$16,065.18 	in 	attorney 	fees. 	We 	affirm 	the 	district 	court’s
determination that the Clarks had standing to bring an individual suit against Jerry
Sims for his breach of fiduciary duty. However, we reverse the district court’s award
of attorney fees because, absent a statute or other authority, attorney fees are not
warranted. Jerry Sims does not appeal the award of punitive damages.
BACKGROUND
{2} 	The Clarks went into business with Jerry Sims and his then wife Nancy Sims.
In 1987, the Clarks and the Simses executed articles of incorporation for Sunfeather
Reproductions, Inc. (Sunfeather), a business engaged in the assembly and sale of

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architectural cast aluminum fixtures. Jerry Sims was designated as president, his wife
Nancy as secretary, Richey Clark as vice president, and Lynova Clark as treasurer.
Each held an equal number of shares.
{3} 	In 1988, the Simses found a property (referred to as the Valley Drive property)
where they could both reside and run the business. The Clarks advanced $5,000 as
a down payment for the property, which the Simses repaid. The Simses executed a
real estate contract for $55,000 for the Valley Drive property and named Sunfeather
as the purchaser. The Simses agreed to make payments on the $50,000 balance of the
purchase price in exchange for the right to live on the property until Sunfeather made
enough of a profit to pay off the real estate contract.
{4} 	In 1992, the business waned, and it finally ceased operating at the end of 1993.
By 1995, Sunfeather’s only income consisted of the payments for the Valley Drive
property, which were paid by the Simses, and its only asset was the Valley Drive
property. 	There was no formal dissolution or division of assets after the business
ceased operating. In 1996, Jerry Sims decided to refinance the Valley Drive property.
Jerry Sims told his wife that he had spoken with the Clarks and that they agreed to the
conveyance of the Valley Drive property to the Simses so that the Simses could obtain
refinancing. 	In fact, the Clarks had not agreed to the transfer of the Valley Drive
property to the Simses, there was no shareholder meeting to discuss the transfer, and

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the Clarks were not informed of the refinancing.
{5} 	The Simses, as president and secretary of Sunfeather, executed a warranty deed
conveying the Valley Drive property to themselves. After paying off the real estate
contract and closing costs, the refinance provided the Simses with $15,341.95 in new
money. This new money was not used for or on behalf of Sunfeather, and the Clarks
were not given any of the new money.
{6} 	In 2000, Jerry Sims executed a reverse mortgage and note secured by the Valley
Drive property. After closing costs and payment of the prior refinance, Jerry Sims
obtained a $9,329.31 line of credit. 	The Clarks were not informed of the reverse
mortgage and did not receive any money from the line of credit. In 2001, Sunfeather’s
certificate of incorporation was cancelled, and the corporation was no longer active.
The Clarks remained unaware of the property transfer until 2002, when they checked
the county real estate records.
{7} 	The Clarks filed suit against the Simses, and the district court concluded that
the Simses failed to follow the provisions of Section 53-15-2 in transferring the Valley
Drive property to themselves. The district court determined that Jerry Sims acted in
bad faith in not following the statutes governing corporations and acted in his own
self-interest in obtaining money from the two refinances in Sunfeather’s name, using
Sunfeather’s sole asset as security for the loans, and increasing Sunfeather’s debt. The

1Jerry Sims and his ex-wife Nancy divorced, and as part of the settlement, Jerry
Sims agreed to be liable for any indebtedness to the Clarks. Therefore, Nancy has no
interest in the Valley Drive property. Jerry Sims remarried, but his new wife has no
interest in the Valley Drive property either.
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district court further concluded that “Jerry’s actions were wrongful, in bad faith and
a deliberate violation of his fiduciary duty to the shareholders.” 	The district court
ordered Jerry Sims to “buy out” the Clarks or, if Jerry Sims was unwilling or unable
to do so, the property would be sold and the Clarks would be distributed their share,
plus punitive damages and attorney fees. 	Jerry Sims appeals. 	Nancy Sims is no
longer a party.1
DISCUSSION
Derivative vs. Individual Claim
{8} 	Sims argues that the Clarks lack standing to sue him individually and that a
derivative suit should have been filed in order to comply with New Mexico standing
requirements. 	We review the issue of standing de novo. 	ACLU v. City of
Albuquerque, 2007-NMCA-092, ¶ 6, 142 N.M. 259, 164 P.3d 958, aff’d by 2008-
NMSC-045, 144 N.M. 471, 188 P.3d 1222.
{9} 	Sims directs this Court to Marchman v. NCNB Texas National Bank, 120 N.M.
74, 898 P.2d 709 (1995), which discusses the requirements of bringing a direct (or
individual) suit versus a derivative suit. Marchman applied the traditional rule and
held that the shareholder in that case lacked individual standing to bring a direct action

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against third persons for damages resulting from an injury to the corporation, even
though the shareholder was indirectly injured. 	Id. at 81-82, 898 P.2d at 716-17.
Marchman identified two exceptions to this general rule: (1) when the shareholder
has suffered a direct injury separate and distinct from the one suffered by other
shareholders; or (2) when a special duty is owed by the wrongdoer, such as a
contractual duty arising from an agreement made between the wrongdoer and a
shareholder. Id. at 82, 898 P.2d at 717. Sims argues that the exceptions identified in
Marchman do not apply.
{10} 	In reference to the second exception, Sims contends that any fiduciary duty he
owed to the Clarks was owed by virtue of their status as shareholders and that this
shareholder status does not give rise to a special duty. 	We are not persuaded. 	In
Walta v. Gallegos Law Firm, P.C., 2002-NMCA-015, ¶ 35, 131 N.M. 544, 40 P.3d
449 (filed 2001), this Court adopted the Massachusetts approach to determining the
duties and liabilities of shareholders in close corporations. 	See Donahue v. Rodd
Electrotype Co. of New England, Inc., 328 N.E.2d 505, 515 & n.17 (Mass. 1975).
This approach analogizes the structure of a close corporation to a partnership, in
which the law recognizes a special duty arising from a fiduciary duty of good faith and
loyalty. Following Donahue, this Court stated, “The duty between shareholders of a
close corporation is similar to that owed by directors, officers, and shareholders to the

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corporation itself; that is, loyalty, good faith, inherent fairness, and the obligation not
to profit at the expense of the corporation.” 	Walta, 2002-NMCA-015, ¶ 41. 	The
Donahue case, on which the Court in Walta relied, noted that the fiduciary duty owed
by shareholders in a close corporation to each other is a special duty in that it is more
stringent than the fiduciary duty owed by shareholders in all other types of
corporations. See Donahue, 328 N.E.2d at 515-16 (contrasting the “strict good faith
standard” governing shareholders in close corporations “with the somewhat less
stringent standard of fiduciary duty to which directors and stockholders of all
corporations must adhere” (footnote omitted)). The Walta Court concluded, “[W]e
hold that breach of this fiduciary duty can be asserted as an individual claim separate
from the remedies available under our statutory corporate law for oppressive
conduct.” 2002-NMCA-015, ¶ 38.
{11} 	Sims argues that this Court adopted the Massachusetts approach only insofar
as it imposes a duty owed by a majority shareholder to minority shareholders. 	See
McMinn v. MBF Operating Acquisition Corp., 2007-NMSC-040, ¶ 20, 142 N.M. 160,
164 P.3d 41 (applying holding and rationale adopted in Walta). He asserts that he was
not a majority shareholder and did not utilize his authority as a shareholder to
complete the transfer of the Valley Drive property. Therefore, he maintains that Walta
and McMinn are distinguishable because they both involved a breach of fiduciary duty

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by a majority shareholder.
{12} 	It is true that Walta and McMinn involved a majority shareholder’s duty to a
minority shareholder. However, the question whether the same duty is owed among
equal shareholders was not in contention in those cases and is an issue of first
impression. 	Donahue expressly states, “We do not limit our holding to majority
stockholders. In the close corporation, the minority may do equal damage through
unscrupulous and improper sharp dealings with an unsuspecting majority.” 	328
N.E.2d at 515 n.17 (internal quotation marks omitted). In addition, this Court noted
in Walta that “[t]he general rule has been sufficiently developed by appellate opinions
to establish that the fiduciary duty does not depend on shareholder control, but rather
arises out of the nature of a closely held corporation.” Walta, 2002-NMCA-015, ¶ 34
(emphasis added). We agree and see no basis for denying the same duty of loyalty
and care owed by a majority shareholder to minority shareholders just because the
roles are reversed or where, as here, the shareholders hold equal stock in the
corporation.
{13} 	Sims next argues that even if this Court were to determine that a fiduciary duty
is owed among equal shareholders, it should require, as an element of the cause of
action, a direct injury to the plaintiff shareholders. Sims contends that the nature of
the injury must be considered to determine whether a derivative or individual suit is

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warranted. See Fate v. Owens, 2001-NMCA-040, ¶ 23, 130 N.M. 503, 27 P.3d 990
(stating that “[i]n order to constitute an individual claim, as opposed to a partnerhsip
claim, the breach [of fiduciary duty by the general partner] must cause an injury
separate and distinct from an injury suffered by the partnership” (second alteration in
original) (internal quotation marks and citation omitted)). Sims argues that the injury
was indirect because the Clarks never claimed ownership of the Valley Drive property
and their only injury was the devaluation of their shares in Sunfeather, which resulted
when the property was transferred out of the corporation’s name. Sims asserts that
because the Clarks have not suffered a direct injury separate and distinct from the one
suffered by the corporation, their only remedy is a derivative action. Sims relies on
the cases cited in Walta for the contention that a plaintiff must prove a direct injury
other than, or in addition to, the corporation’s injury. 	See A.W. Chesterton Co. v.
Chesterton, 128 F.3d 1, 6 (1st Cir. 1997) (determining a breach of fiduciary duty by
a minority shareholder for attempting to sell stock to the detriment of the corporation
and other shareholders); Zimmerman v. Bogoff, 524 N.E.2d 849, 853-54 (Mass. 1988)
(determining a breach of fiduciary duty by a defendant shareholder for withholding
corporate money that should have gone both to the plaintiff shareholder and the solely
held corporation).
{14} 	Sims misreads the applicable law. 	Our case law clarifies the type of direct

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injury that is necessary to support a direct action. In response to an argument identical
to the one Sims makes here, this Court in Healthsource, Inc. v. X-Ray Associates of
New Mexico, P.C., stated that the direct action exception to the general rule requiring
derivative suits was not “for a shareholder who suffers an injury that is separate and
distinct from the corporation”; instead, the exception was “for a shareholder who
suffers an injury separate and distinct from other shareholders.” 2005-NMCA-097,
¶ 29, 138 N.M. 70, 116 P.3d 861.
{15} 	The Clarks clearly suffered an injury distinct from any injury to the Simses.
Several 	years 	after 	the 	corporation 	ceased 	operating, 	Sims 	transferred 	the
corporation’s sole asset to himself and took cash out of the asset through his refinance
of the Valley Drive property. At this point, the Simses were in a much better position
than the Clarks. The Simses owned a piece of real estate, while the Clarks owned
worthless stock in a defunct corporation. Cf. Donahue, 328 N.E.2d at 518 (holding
that a close corporation’s directors breached the fiduciary duty owed to other
shareholders and that “[p]urchase by the corporation confers substantial benefits on
the members of the controlling group whose shares were purchased [and t]hese
benefits are not available to the minority stockholders if the corporation does not also
offer them an opportunity to sell their shares”).
{16} 	In addition, we think that the general rule requiring derivative suits—as well as

2A close corporation is “one typified by: (1) a small number of stockholders;
(2) no ready market for the corporate stock; and (3) substantial majority stockholder
participation in the management, direction and operations of the corporation.” Walta,
2002-NMCA-015, ¶ 32 (internal quotation marks and citation omitted).
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the exceptions to the rule, such as the requirement for a distinct and separate
injury—should not be stringently enforced when the corporation in question is a
closely held one, like Sunfeather.2 A leading treatise supports our view:
Courts sometimes recognize the right of a close corporation
shareholder to sue directly, as an individual, on a cause of action that
would normally have to be brought derivatively. This is because of the
special treatment sometimes accorded close corporations and their
similarity to partnerships.
12B William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations,
§ 5911.50, at 527-28 (2009) (footnote omitted). 	As we have discussed, in New
Mexico there is precedent for according close corporations treatment similar to that
accorded partnerships. 	See Walta, 2002-NMCA-015, ¶ 41 (“The duty between
shareholders of a close corporation is similar to that owed by directors, officers, and
shareholders to the corporation itself; that is, loyalty, good faith, inherent fairness, and
the obligation not to profit at the expense of the corporation.”). 	Another treatise
observes that “[t]he derivative/direct distinction makes little sense when the only
interested parties are two individuals or sets of shareholders, one who is in control and
the other who is not. In this context, the debate over derivative status can become
purely technical.” 	2 F. Hodge O’Neal & Robert B. Thompson, O’Neal and

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Thompson’s Close Corporations & LLCs: Law & Practice § 9.22, at 138-39 (3d ed.
2008) (internal quotation marks omitted) (footnote omitted). Indeed, this treatise cites
Walta as “authority for a direct shareholder cause of action in a close corporation.”
2 O’Neal & Thompson, supra, § 9.22, at 141-42 & n.53.
{17} 	Relaxing the traditional distinction between derivative and direct suits makes
sense under the circumstances of this case. 	The commentators provide the
explanation. Fletcher notes that
[r]easons underlying the traditional rule include: 	(1) it prevents a
multiplicity of lawsuits by shareholders; (2) it protects corporate
creditors by putting the proceeds of the recovery back in the corporation;
(3) it protects the interests of all shareholders by increasing the value of
their shares, instead of allowing a recovery by one shareholder to
prejudice the rights of others not a party to the suit; and (4) it adequately
compensates the injured shareholder by increasing the value of his
shares.
12B Fletcher, supra, § 5911.50, at 531 (footnote omitted). 	But, as observed by
O’Neal & Thompson, these reasons are not compelling in the context of the close
corporation. 	“There is no practical need to insist on derivative suits when there is
little likelihood of a multiplicity of suits or harm to creditors” when shareholders in
a close corporation are engaged in controversy. 2 O’Neal & Thompson, supra, § 9.22,
at 139 (footnote omitted). “Any recovery in a derivative suit would return funds to
the control of the defendant, rather than to the injured party.” Id. at 139-40.
{18} 	The American Law Institute recommends as follows:

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In the case of a closely held corporation . . . , the court in its discretion
may treat an action raising derivative claims as a direct action, exempt
it from those restrictions and defenses applicable only to derivative
actions, and order an individual recovery, if it finds that to do so will not
(i) unfairly expose the corporation or the defendants to a multiplicity of
actions, (ii) materially prejudice the interests of creditors of the
corporation, or (iii) interfere with a fair distribution of the recovery
among all interested persons.
2 A.L.I., Principles of Corporate Governance: 	Analysis and Recommendations
§ 7.01(d) (1994). 	In the present case, it is clear that allowing the Clarks direct
recovery will not give rise to a multiplicity of lawsuits because the only remaining
shareholders in the now-defunct corporation are the Clarks and Jerry Sims. Nor will
the Clarks’ recovery prejudice any creditors of the corporation because the applicable
statutes of limitations on such claims will likely have long since run. And there is no
problem with fair distribution of the recovery because the only persons interested in
the recovery are the Clarks.
{19} 	We conclude that the Clarks had standing to assert individual claims against
Sims for breach of the fiduciary duty he owed them to demonstrate “loyalty, good
faith, inherent fairness, and the obligation not to profit at the expense of the
corporation.” Walta, 2002-NMCA-015, ¶ 41. We therefore affirm the district court’s
judgment in favor of the Clarks on this issue.
Attorney Fees
{20} 	Sims argues that attorney fees were improperly awarded because there is no

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statute or other authority to support such an award. We review the award of attorney
fees for an abuse of discretion. 	N.M. Right to Choose/NARAL v. Johnson, 1999-
NMSC-028, ¶ 6, 127 N.M. 654, 986 P.2d 450. However, we review the application
of the law to the facts de novo. 	Id. ¶ 7. 	“Accordingly, we may characterize as an
abuse of discretion a discretionary decision that is premised on a misapprehension of
the law.” Id. (alteration omitted) (internal quotation marks and citation omitted).
{21} 	New Mexico follows the American rule regarding attorney fees, which is that,
absent statutory or other authority, such as court rule or a contractual agreement, each
party should bear its own attorney fees. Id. ¶ 9. “The exceptions we have recognized
are limited in number and narrow in scope.” Id. ¶ 15. They include “(1) exceptions
arising from a court’s inherent powers to sanction the bad faith conduct of litigants
and attorneys, (2) exceptions arising from certain exercises of a court’s equitable
powers, and (3) exceptions arising simultaneously from judicial and legislative
powers.” Id.
{22} 	The Clarks argue that the third exception applies based on Sims’s breach of
fiduciary duty. The Clarks rely on Bassett v. Bassett, which held that when a partner
breaches the fiduciary duty owed to another partner, the court may exercise its
equitable power to award attorney fees to the aggrieved partner. 110 N.M. 559, 564,
798 P.2d 160, 165 (1990). The Clarks assert that the exception in Bassett should also

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apply to closely held corporations. 	On the other hand, Sims contends that our
Supreme Court has only allowed a few exceptions under this category, including cases
of divorce, child custody, and breach of fiduciary duty. 	See N.M. Right to
Choose/NARAL, 1999-NMSC-028, ¶ 25. Sims further asserts that courts applying the
equitable powers exception for breaches of fiduciary duty have done so only when
supported by statute.
{23} 	In Bassett, the Supreme Court pointed to the partnership statutes requiring (1)
complete accounting by a partner for profits derived without the consent of the other
partners and (2) indemnification of a partner entitled to rescind a partnership contract
on the basis of another partner’s fraud. 110 N.M. at 564, 798 P.2d at 165. The Court
stated that these statutes “requir[ed] strict compliance between partners in their duty
to deal with one another as fiduciaries fully, honestly and openly.” 	Id. 	While the
common law has recognized that the same fiduciary duties owed in a partnership are
owed between shareholders in a close corporation, there appears to be no similar
statutory basis applicable to such corporations.
{24} 	In Turpin v. Smedinghoff, 117 N.M. 598, 601, 874 P.2d 1262, 1265 (1994), the
Supreme Court stated,
In light of the interpretation of the Washington cases and our reluctance
to award attorney[] fees absent an express statute, court rule, or contract
providing for such award, we clarify that 	Bassett 	stands for the
proposition that the partnership statutes imply the basis for an award of

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attorney[] fees only when there has been a breach of fiduciary duty as a
result of constructive fraud that results in actual harm or when one
partner sues in order to maintain the common fund.
“Bassett was based on specific statutes requiring partners to account to one another,
to hold profits as trustees, and to indemnify the aggrieved partner.” State ex rel. N.M.
State Highway & Transp. Dep’t v. Baca, 116 N.M. 751, 753, 867 P.2d 421, 423 (Ct.
App. 1993), rev’d in part on other grounds, 120 N.M. 1, 896 P.2d 1148 (1995). The
partnership statutes imply the basis for an award of attorney fees, but only under
limited circumstances. Turpin, 117 N.M. at 601, 874 P.2d at 1265; cf. NMSA 1978,
§ 54-1-21(A) (1995) (repealed 1997) (current versions at NMSA 1978, Sections 54-
1A-401(j) and -404 (1996)) (detailing the fiduciary duties owed between partners).
Because there are no comparable statutes governing corporations, we hold that
attorney fees are not recoverable under the equitable powers exception. Accordingly,
we reverse the district court’s award of attorney fees. 	In addition, for the same
reasons, we deny the Clarks’ request for an award of attorney fees incurred in this
appeal.
Damages Pursuant to NMSA 1978, Section 39-3-27 (1966)
{25} 	The Clarks ask us to award them damages pursuant to Section 39-3-27, which
provides, “Upon the affirmation of any judgment or decision, the supreme court or
court of appeals may award to the appellee or defendant in error damages not

16
exceeding ten percent of the judgment complained of, as may be deemed just by the
court.” While Section 39-3-27 permits this Court to assess damages against a party
where an appeal is found to be frivolous or for the purpose of delay, “we also
recognize that a court should be reluctant to penalize litigants who take advantage of
their right to appeal.” Genuine Parts Co. v. Garcia, 92 N.M. 57, 63, 582 P.2d 1270,
1276 (1978).
{26} 	The Clarks request the award on grounds that the law is well settled in matters
regarding derivative-versus-individual suits and that it is within the district court’s
inherent equitable authority to award attorney fees in cases where a breach of
fiduciary duty has occurred. Contrary to the Clarks’ assertion, the question presented
by the facts of this case raises an issue of first impression. 	While the general
propositions of law governing derivative suits versus individual actions may be
settled, how they are applied to the various corporate and partnership schemes is far
from established. Cf. Chavez v. Lovelace Sandia Health Sys., Inc., 2008-NMCA-104,
¶ 41, 144 N.M. 578, 189 P.3d 711 (“One cannot begin to count the number of cases
this Court sees in which a party and its counsel ask this Court to revisit and modify
or distinguish what the opposing party contends is controlling precedent.”). 	New
Mexico has had to look to commentators and case law from other jurisdictions for
guidance in these matters. Therefore, we disagree with the contention that the law is

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well settled.
{27} 	In addition, the Clarks assert that this Court informed the parties of its proposed
disposition (apparently referring to pleadings filed in the course of our internal
calendaring process) and the applicable law and rationale, but that Sims nevertheless
continued to pursue the appeal. However, the notice of proposed disposition is merely
a proposal of how the Court views the case; it is not a final decision. 	The party
opposing the proposed disposition has the opportunity to file a memorandum telling
the Court any reasons why the proposed disposition should or should not be made.
Rule 12-210(D) NMRA. 	We will not punish a party for opposing the proposed
disposition, which is permitted under our appellate rules.
{28} 	The Clarks further argue that the appeal appears to have been pursued for the
purpose of delay because although Sims was ordered to sell the property in order to
pay the judgment, he has not done so, and the sale cannot be completed until the
appeal is resolved. 	Thus, the Clarks contend that Sims’s pursuit of the appeal is
frivolous and not in good faith. 	However, there is no evidence before this Court
indicating that Sims filed this appeal for purposes of delay. Cf. Anderson v. Jenkins
Constr. Co., 83 N.M. 47, 50, 487 P.2d 1352, 1355 (Ct. App. 1971) (concluding that
an appeal was frivolous when the defendant took more than sixty days after the receipt
of the transcript to file a brief-in-chief, the defendant did not challenge the district

18
court’s findings and conclusions and, although the defendant stipulated to be bound
by an expert’s findings in the district court, on appeal there were unreasonable
deviations from those findings and, finally, the defendant did not deny the allegation
that the appeal was brought in order to delay a final determination). Therefore, we
deny the Clarks’ request for damages.
CONCLUSION
{29} 	We affirm the judgment of the district court insofar as it concludes that the
Clarks had standing to bring an individual action against Sims for breaching the
fiduciary duty owed to them. 	However, we reverse the district court’s award of
attorney fees. We deny the Clarks’ request for damages pursuant to Section 39-3-27.
{30} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

JONATHANB. SUTIN, Judge

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