Opinion
No. 05-16-00054-CV
08-14-2017
CHRISTIAN HEYER, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF WESTERLAND PARTNERS, LLC, Appellant v. CHRISTIAN GROENKE, ERIC PEUS, BRENT PEUS, AND JOSEPH PEUS, Appellees
On Appeal from the 191st Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-13-08521
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Bridges
Christian Heyer, individually and derivatively on behalf of Westerland Partners, LLC, appeals the trial court's order granting no-evidence and traditional motions for summary judgment in favor of Christian Groenke, Eric Peus, and Brent Peus. In two issues, Heyer argues the trial court erred in granting no-evidence and traditional summary judgment on his various claims. We reverse the trial court's order granting summary judgment and remand for further proceedings.
As alleged in Heyer's second amended petition, Westerland Partners was formed in 2003 by Heyer, Eric Peus, Brent Peus, and Groenke's wife, who later assigned her interest to Groenke. Each of the four held a 25% interest as members in Westerland. Westerland was formed under Delaware law, and its primary business was real estate venture capital investments in new or development stage companies. The Westerland Operating Agreement provided, in part, that "[t]he business and affairs of the Company will be managed by the Members," and "[a]ny action to be taken by the Company will require the affirmative vote of Members holding a majority of the Profit Sharing Interests of the Company . . . ." The agreement further provided that Eric, Heyer, and Groenke "initially agree[d] to loan the Company, on a non-recourse basis, working capital" in certain amounts. As to Heyer, the agreement provided as follows:
Christian Heyer shall commit $200,000, accruing interest at 20%. As of the date of this agreement, Christian Heyer has loaned the Company $82,375; (Separately, on behalf of the Company, he has invested $175,000 in Full Tilt Partners, LLC, and has committed to invest $1,100,000 in Source Data Acquisition, L.P. on or before September 1, 2003).The agreement specified "[f]unded amounts, plus accrued interest thereon, shall herein be referred to as "Capital Accounts," and must be fully repaid (i.e., Capital Accounts must be reduced to zero) before Members participate in any distributions." The agreement provided that distributions to members would be made "only after all loans to the Company, including, but not limited to, Capital Accounts, have been fully repaid."
One of Westerland's first investments was the acquisition of a Texas technology company named Source Data. Heyer's petition alleged he funded the acquisition with a $1.1 million loan to Westerland, and Westerland carried the debt on its books as a long-term liability for the next seven years. In 2010, Groenke personally invested $300,000 in a company called We Scan IDs, the surviving entity after Source Data merged with another company. Groenke received a 7.89% equity stake in We Scan IDs, but Westerland remained the majority owner.
When Heyer received his 2011 Form K-1 from Westerland in September 2012, he learned that his loan to Westerland had been reclassified from debt to a capital contribution. Heyer learned the loan reclassification was based on information provided to the tax accountant by Brent. When asked, Brent told Heyer the original accounting for the loan was an error, and all funding to Westerland was treated as an investment in Westerland, despite Westerland historically recognizing eight to ten long-term liabilities.
Heyer's petition alleged the loan reclassification allowed Westerland to offset "losses against the 'capital' account balance and, effectively (but unlawfully) extinguish Heyer's loan." Heyer also alleged Brent, by himself or through information provided to accountants, had caused all Westerland members except Groenke to have negative capital account balances. Heyer alleged Brent's conduct violated Brent's fiduciary duties and duties of good faith and fair dealing to Westerland and its members.
In December 2012, Heyer received documents related to Groenke's proposed dissolution of Westerland. One of the documents Groenke proposed Heyer sign was titled "Waiver." The waiver stated that Heyer had received full and adequate consideration for a $1,193,175 liability owed by Westerland to Heyer. Heyer refused to sign the waiver. Heyer's petition alleged he had been receiving limited information from Westerland prior to his refusal to sign the waiver, but after his refusal he was "cut off from most, if not all, of the information he was entitled to receive regarding Westerland and We Scan IDs."
Heyer's petition alleged that, after he refused to sign the waiver, Groenke continued to pressure him regarding the dissolution of Westerland. Another of the documents Heyer received was an unsigned convertible promissory note purportedly evidencing a loan from Groenke to We Scan IDs. Heyer later learned that the note was executed two days before Groenke sent an unsigned version to Heyer. Groenke told Heyer he needed "additional security" for his loan, but he did not specify what security he intended to take. Heyer's petition alleged Groenke "concealed for weeks" the fact that Groenke had "taken a purported lien on all the assets of We Scan IDs, which Westerland valued at over $3 million and which Groenke himself valued at $3.5 million in his convertible promissory note, in exchange for a loan of only $350,000." The promissory note and security agreement were executed on behalf of We Scan IDs by Eric as the "Managing Member" of We Scan IDs even though, as Heyer alleged, Eric was not a member of We Scan IDs and was never given the title of managing member. Heyer alleged that the president of We Scan IDs agreed the promissory note and security agreement were invalid because Eric had no authority to sign them.
Heyer alleged Groenke and Eric were managers of We Scan IDs and concealed the terms of the promissory note and security agreement from the CEO and president of We Scan IDs. Heyer learned the terms of the security agreement on February 12, 2013, approximately two months before the note was due. When the CEO of We Scan IDs learned of the note, Groenke and Eric "repeatedly reassured him he did not need to be concerned about repayment of the note and that the debt would be resolved in the dissolution discussions between Groenke and Heyer." Groenke also told the CEO that Groenke would continue to fund We Scan IDs' cash flow needs. Heyer alleged that both the CEO and president "believed Groenke's assurances and took no action to curtail spending or seek alternate financing to repay the Groenke note."
Heyer alleged that, "as the date for We Scan IDs' payment of the Convertible Promissory Note grew closer, Groenke's dissolution negotiations, and offers for Westerland to buy out Heyer, became increasingly unfair to Heyer." Despite Heyer's claim that Westerland owed him more than $1 million, Groenke made a final $250,000 offer to Heyer, and this amount declined by $50,000 a day until it reached zero "on the day Groenke was to foreclose on all We Scan IDs' assets."
Heyer alleged that We Scan IDs not pay the Groenke note in April 2013 and, in June 2013, Groenke held an auction of We Scan IDs' assets and purchased all of them for himself. Thus, Heyer claimed, "all the assets of We Scan IDs, majority-owned by Westerland and its members for ten years, passed in one day from We Scan IDs to Groenke, based on a security agreement executed by a person with no authority to bind We Scan IDs."
Based on these allegations, Heyer asserted that Groenke and Eric violated their fiduciary duties and the duties of good faith and fair dealing by concluding a self interested transaction harmful to Westerland and Heyer individually. Heyer claimed he had not demanded that Westerland bring the claims he asserted as derivative claims because such a demand would have been futile in light of the other members' collusion with Groenke. Groenke alleged the other members of Westerland circulated an email, without objection from any member, "expressing a desire to dilute Heyer's interest in Westerland."
Heyer asserted individual causes of action for breach of fiduciary duty, breach of the duty of good faith and fair dealing, and breach of contract against Groenke, Eric, and Brent; civil conspiracy against Groenke and Eric; and aiding and abetting against Eric. Heyer also sought a declaratory judgment declaring his rights under the Westerland Operating Agreement, attorney's fees, and exemplary damages. Heyer also asserted derivative causes of action on behalf of Westerland for breach of fiduciary duty and breach of the duty of good faith and fair dealing against Groenke, Eric, and Brent; civil conspiracy against Groenke and Eric; and aiding and abetting against Eric. Heyer further alleged Groenke was unjustly enriched through his breach of fiduciary duty and requested that the trial court impose a constructive trust on the assets of We Scan IDs foreclosed upon by Groenke.
Groenke, Eric, and Brent filed responsive pleadings alleging, among other things, that Heyer failed to plead with particularity why he was excused from making a demand upon Westerland to bring the derivative claims alleged in Heyer's petition; Heyer lacked standing to bring derivative claims for actions taken by We Scan IDs because Heyer was not a member of We Scan IDs and We Scan IDs was not a wholly-owned subsidiary of Westerland; all Heyer's cause of action based on alleged breaches of fiduciary duties were barred by the business judgment rule; all of Heyer's causes of action brought individually but under which the harm alleged was suffered by Westerland were barred as belonging to Westerland; all causes of action brought as fiduciary duty claims but which were based in contract were superfluous and therefore barred under Delaware law; and all of Heyer's individual claims and all claims arising out of the foreclosure of We Scan IDs' assets were barred by the doctrines of laches, waiver, and/or acquiescence. The pleadings further alleged that Heyer's $1,100,000 investment in Source Data, which became We Scan IDs, was not classified as a loan under the Westerland agreement. According to the pleadings, "the members of Westerland agreed that Westerland would be dissolved and that after the dissolution of Westerland, the Westerland members would have interests in We Scan IDs in certain agreed-upon percentages." The pleadings alleged Groenke "personally paid Heyer a total of approximately $245,000 in two separate installments in anticipation of an exchange for percentages of the membership interests that Heyer was to receive in We Scan IDs." Both payments were allegedly "subject to the agreement that Westerland would be dissolved and its members would have membership interest in We Scan IDs in certain agreed upon percentages." The pleadings alleged Heyer "blocked the dissolution of Westerland" and, as a result, the Westerland members never obtained membership interests in We Scan IDs. The pleadings sought declaratory judgment that Heyer's $1,100,000 commitment was not a loan but a capital contribution in Source Data and attorney's fees. Groenke asserted counterclaim against Heyer for breach of an oral agreement to transfer membership interests from Westerland to We Scan IDs; for money had and received; and for breach of an oral agreement to loan money.
Groenke, Eric, and Brent filed traditional and no-evidence motions for summary judgment. Their no-evidence motion alleged no evidence supported Heyer's derivative claims because he did not first make a demand on Westerland to pursue derivative claims owned by Westerland, no evidence showed such a demand would have been futile, and no evidence created a reasonable doubt that the actions taken by Groenke, Eric, and Brent were the product of a valid exercise of business judgment. The motions alleged Heyer presented no evidence Groenke, Eric, or Brent breached a fiduciary duty or the duty of good faith and fair dealing to Heyer or Westerland; no evidence to support an individual or derivative aiding and abetting claim; no evidence to support an individual breach of contract claim; no evidence to support an individual declaratory judgment claim; and no evidence to support a derivative constructive trust claim.
In their traditional summary judgment motion, Groenke, Eric, and Brent alleged Heyer's direct claim for breach of fiduciary duty failed because it involved the same conduct expressly addressed by the Westerland Operating Agreement and was duplicative of and subsumed within his breach of contract claim; Heyer's breach of the implied covenant of good faith and fair dealing claim failed because "there are no gaps or developments in the Westerland Operating Agreement to which the implied covenant would apply under Delaware law; Heyer's breach of contract and declaratory judgment claims failed because the Westerland Operating Agreement omitted essential and material terms of the alleged loan necessary to make the loan enforceable under Delaware law; the absence of certain material terms showed that Heyer's commitments were capital contributions not loans; summary judgment was therefore appropriate on Heyer's breach of contract claim and his request for declaratory judgment; and, as a result, summary judgment was appropriate on Groenke, Eric, and Brent's request for declaratory judgment that Heyer's commitments were capital contributions not loans. Regarding Heyer's derivative claims the motion alleged his derivative claim for breach of fiduciary duty was fundamentally flawed because Westerland was not a party to Groenke's loan to We Scan IDs and Westerland suffered no direct harm other than in its capacity as a member of We Scan IDs; Heyer's derivative claim was therefore a double derivative claim which had not been asserted and could not be asserted because We Scan IDs was not a wholly-owned subsidiary of Westerland; Groenke's loan to We Scan IDs could not be the basis for a breach of fiduciary duty claim because of the business judgment rule; summary judgment was proper on Heyer's civil conspiracy claim because Groenke, Eric, and Brent committed no underlying wrong; and summary judgment was appropriate on Heyer's aiding and abetting claim against Eric because there was no breach of fiduciary duty.
In his response to Groenke, Eric, and Brent's no-evidence motion for summary judgment, Heyer first addressed his contributions to Westerland and quoted language from the Westerland Operating Agreement that he agreed "to loan the Company, on a non-recourse basis, working capital . . . ." From 2003 to 2010 Westerland's financial statements and tax returns identified Heyer's commitments to Westerland as loans, and Westerland's financial records also identified Heyer's $1,193,175 commitment to Westerland as a loan in June 2012. The response alleged Brent kept Westerland's books and financial records, including balance sheets which Westerland's accountants used to prepare Westerland's tax returns. Heyer argued Brent did not discuss with Heyer the reclassification of Heyer's $1,193,175 commitment from a loan to a capital contribution; Brent did not consult with anyone to determine whether such a reclassification would be legal or in violation of the Westerland Operating Agreement; and Brent admitted that he might have omitted from Westerland's financial records some of Heyer's additional contributions, which Heyer claimed amounted to $572,695.
Heyer's response next alleged Westerland owned a 48 to 55% interest in We Scan IDs; Eric, Brent, Heyer, and Groenke began discussing dissolution of Westerland in June 2012; Groenke emailed Eric and Brent and stated that he intended to "dilute" Heyer's ownership interest in We Scan IDs on December 21, 2012; on December 26, 2012, Groenke sent Heyer documents including a "waiver" of Westerland's $1,193,000,175 million liability to Heyer; Heyer requested that his capital account and loans to Westerland be properly classified prior to dissolution of Westerland; but Westerland's other members refused to reclassify Heyer's contributions as loans.
As to Groenke's dealings with We Scan IDs, Heyer's response alleged Groenke loaned in his personal capacity $350,000 to We Scan IDs and received a security interest in all of We Scan IDs assets. Eric, on behalf of We Scan IDs, executed the promissory note and security agreement in connection with the loan. The response alleged Groenke admitted that he never circulated the note or the security agreement to Westerland's or We Scan IDs' members before he and Eric executed the documents, and the note and security agreement were not approved by Westerland's or We Scan IDs' members. We Scan IDs did not pay the Groenke note, and Groenke foreclosed on We Scan IDs' assets on June 21, 2013. Under the note, Groenke have the option of converting his $350,000 loan into a 10% equity position based on a $3.5 million valuation of We Scan IDs. Prior to Groenke's foreclosure on We Scan IDs' assets, Westerland's interest in We Scan IDs was worth between $1.9 million and $1.6 million.
As Heyer had argued previously, his response asserted a pre-suit demand on Westerland to pursue the claims he brought derivatively would have been futile because Eric, Brent, and Groenke were neither independent nor disinterested; Heyer rebutted the presumption that Eric, Brent, and Groenke entered into the transactions in this case in good faith and an honest belief that they were in the best interest of the company by showing breach of fiduciary duty. Heyer argued he "produced summary judgment evidence showing that Defendants reclassified Heyer's $1.2 million loan, failed to properly account for Heyer's other substantial investment in or contributions to Westerland, and allowed Groenke to secure his $350,000 loan to We Scan IDs with $3.5 million worth of We Scan IDs' assets, which he took for himself after foreclosure." In addition, Heyer argued he produced summary judgment evidence "showing that Defendants were interested in these challenged transactions."
As to his conspiracy claim, Heyer argued he produced evidence that Eric and Groenke worked together with Brent to reclassify Heyer's $1.2 million investment from a loan to a capital contribution and evidence "that Defendants worked in concert to allow Groenke to execute the Note and the Security Agreement, and to foreclose" on We Scan IDs. Because the evidence showed breach of fiduciary duty through the reclassification of Heyer's loan and the foreclosure on We Scan IDs, Heyer argued summary judgment was inappropriate on his aiding and abetting claim, his claim for breach of contract, his declaratory judgment claim, and his claim for a constructive trust.
In his response to the traditional motion for summary judgment, Heyer made many of the same arguments he made in his response to the no-evidence motion. In addition, Heyer argued his fiduciary duty claim was not a "double-derivative" claim because his claim stemmed from breaches of fiduciary duty by managing members of Westerland that resulted in harm to Westerland. Heyer argued he sought recovery for the cause of action belonging to Westerland, not We Scan IDs. Heyer argued his breach of fiduciary duty claim was not duplicative of his breach of contract claim but noted he pleaded his contractual claim as an alternative to his fiduciary claim.
In support of his arguments in the responses, Heyer attached as exhibits, among other things, Heyer's February 15, 2013 letter to Brent and Groenke detailing Heyer's loans, payments, and unrecorded payments to Westerland and asking why his capital account of $1,193,165 was "recorded to Equity in 2011 when it was recorded as a loan to C. Heyer in prior years"; the December 24, 2012 promissory note for $350,000 executed by Groenke and signed by Eric on behalf of We Scan IDs; The security agreement giving Groenke a security interest in all of We Scan IDs' assets in exchange for the $350,000 promissory note; Westerland's balance sheets for the years 2006 to 2010 showing as one of Westerland's libilities a "Heyer Loan (Source Data)" in the amount of $1,193,165 for 2006 and $1,193,175 for the remaining years; Westerland's 2011 to 2012 balance sheets showing as one of Westerland's libilities a "Heyer Loan (Source Data)" in the amount of $10; a December 21, 2012 email from Groenke to Eric and Brent regarding attached "documents that need to be executed to get Westerland dissolved and Heyer's interest in We Scan IDs diluted further"; and a copy of the unsigned "Waiver" document under the terms of which Heyer would have acknowledged Westerland's books and records showed a liability to Heyer of $1,193,175, acknowledged he "received full and adequate consideration for" that amount, and waived "any and all claims against [Westerland] for" that amount.
Heyer subsequently non-suited his individual and derivative claims for breach of the duty of good faith and fair dealing. The trial court granted Groenke, Eric, and Brent's traditional and no-evidence motions for summary judgment. This appeal followed.
In his first issue, Heyer argues the trial court erred in granting Groenke, Eric, and Brent's no-evidence motion for summary judgment. In his second issue, Heyer argues the trial court erred in granting their traditional summary judgment. Heyer argues he presented evidence to support his derivative claim for breach of fiduciary as to Groenke and Eric and his individual claim for breach of fiduciary duty as to Brent. Specifically, Heyer argues the evidence showed Groenke and Eric "breached their fiduciary duties to the partnership in their scheme to enable Groenke to obtain its most valuable asset for himself." Heyer argues Groenke and Eric "signed the documents that enabled this to happen, and did not do so in any capacity as Westerland partners." Heyer argues Brent breached his fiduciary duties to Heyer by failing to account for all of Heyer's financial contributions in Westerland's books and by reclassifying Heyer's $1.2 million loan "so that it would be wholly offset by the partnership's substantial loss."
In reviewing the trial court's decision to grant summary judgment, we apply well-known standards. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant who moves for summary judgment must show the plaintiff has no cause of action. A defendant may meet this burden by either disproving at least one essential element of each theory of recovery or conclusively proving all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. See Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. See Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex. App.—Dallas 1999, no pet.).
When traditional and no-evidence motions for summary judgment are filed, we review the no-evidence summary judgment first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See TEX. R. CIV. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. King Ranch, 118 S.W.3d at 750. When analyzing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. See Nixon, 690 S.W.2d at 549 (traditional summary judgment); King Ranch, 118 S.W.3d at 750 (no-evidence summary judgment).
Here, while the substantive law of the jurisdiction where the foreign corporation is incorporated applies, Texas procedural law governs matters of remedy and procedure. Connolly v. Gasmire, 257 S.W.3d 831, 839 (Tex. App.—Dallas 2008, no pet.). A claim for breach of fiduciary duty requires proof of two elements: (1) that a fiduciary duty existed and (2) that the defendant breached that duty. Beard Research, Inc. v. Kates, 8 A.3d 573, 601 (Del. Ch. 2010) (officer and member of key managerial personnel of corporation owed corporation fiduciary duties).
Groenke, Eric, and Brent argue, in part, that "Heyer's commitments to Westerland cannot be loans as a matter of law because the Operating Agreement lacks the material terms necessary to create an enforceable loan under Deleware law." They argue that, "[w]hen a contract purpose is to facilitate lending money, the contract's essential terms include the loan's duration, interest rate, payment method, and any security," quoting Bryant v. Way, 2012 WL 1415529, at *13 (Del. Super. Ct. Apr. 17, 2012). In Bryant, the "only evidence adduced suggesting a loan [was] from email conversations in June 2010." Id. Here, the operating agreement provided Heyer "agree[d] to loan the Company, on a non-recourse basis, working capital"; Heyer committed to investing $1,100,000 to Source Data, a "loan . . . on a non-recourse basis";the agreement applied a 20% interest rate to the first listed commitment of $200,000; commitments were to remain in effect for three years from the date of the agreement; the agreement stated "Funded amounts, plus accrued interest thereon," would be referred to as "Capital Accounts" and had to be fully repaid before members could participate in any distributions; and the agreement provided that "any non-cash Company assets [would] serve as collateral for Members with outstanding Capital Accounts." We conclude the terms of the agreement indicating a loan, at the very least, raise a fact issue whether Heyer's commitments were "loans." See King Ranch, 118 S.W.3d at 750.
Groenke, Eric, and Brent did not argue they did not have a fiduciary duty to Westerland or to Heyer; instead, they argued Heyer produced no evidence they breached a fiduciary duty owed to Westerland or Heyer. On the contrary, Heyer produced evidence Brent reclassified as a "capital contribution" what the Westerland Operating Agreement termed a $1,100,000 "loan" to Source Data. Heyer presented evidence the reclassification of the $1,100,000 was contrary to Westerland's tax returns from 2003 to 2010, which classified the $1,100,000 as a loan. Heyer presented evidence the loan reclassification was reflected in Westerland's balance sheets as a $1,193,175 loan in 2010 and a $10 loan in 2011 and 2012. As to Groenke and Eric, Heyer produced evidence that Groenke loaned $350,000 to We Scan IDs, a major Westerland asset, in exchange for a security interest in all of We Scan IDs assets, valued at $3,500,000. Groenke executed the promissory note and security agreement, and Eric signed both documents on behalf of We Scan IDs. When We Scan IDs did not pay Groenke under the note in April 2013, Groenke foreclosed on all of We Scan IDs' assets.
Under the applicable standard of review, we conclude there are fact issues precluding summary judgment as to whether (1) Heyer's $1,100,000 investment in Source Data was a loan or a capital contribution; (2) Brent, Groenke, and Eric breached their fiduciary duties to Heyer and Westerland; (3) it would have been futile to present a pre-suit demand that Westerland assert its claims that Heyer asserted derivatively to Westerland, whose three members other than Heyer may have breached their fiduciary duties to Heyer; (4) the presumption that Groenke, Eric, and Brent acted with sound business judgment was rebutted by evidence of a breach of fiduciary duty; (5) the evidence showed a civil conspiracy or supported Heyer's derivative and individual claims for aiding and abetting on the part of Groenke and Eric with respect to the We Scan IDs transactions; and (6) Heyer was entitled to recover on his breach of contract claim, request for declaratory judgment, or derivative claim for a constructive trust. See Id. We sustain Heyer's first issue. Because of our disposition of Heyer's first issue, we need not further address his second issue.
We reverse the trial court's summary judgment and remand for further proceedings consistent with this opinion.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE 160054F.P05
JUDGMENT
On Appeal from the 191st Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-13-08521.
Opinion delivered by Justice Bridges. Justices Myers and Brown participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant CHRISTIAN HEYER, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF WESTERLAND PARTNERS, LLC recover his costs of this appeal from appellees CHRISTIAN GROENKE, ERIC PEUS, BRENT PEUS, AND JOSEPH PEUS. Judgment entered August 14, 2017.