Kilburn v. Young

10 Citing cases

  1. Brooks v. Quinlan

    353 Ga. App. 573 (Ga. Ct. App. 2020)   Cited 2 times

    Further, Georgia law expressly dictates that "[m]isjoinder of parties is not ground for dismissal of an action," but rather "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative." OCGA § 9-11-21 ; see Kilburn v. Young , 244 Ga. App. 743, 746 (1), 536 S.E.2d 769 (2000) (applying the joinder provisions of the Civil Practice Act to a shareholder derivative action). In accordance with this statutory and case law, the trial court clearly had the authority to allow the realignment of CREO as a party plaintiff.

  2. Murray v. Lexington Park of Fulton Cnty. Cmty. Ass'n

    904 S.E.2d 119 (Ga. Ct. App. 2024)

    Knaack v. Henley Park Homeowners Assn., 365 Ga. App. 375, 379 (1), 877 S.E.2d 821 (2022); see also OCGA § 14-3-740 (defining a "derivative proceeding" to include "a civil suit in the right of a domestic corporation"). In a derivative suit the corporation is the real party in interest, Kilburn v. Young, 244 Ga. App. 743, 744 (1), 536 S.E.2d 769 (2000), and any damages recovered are paid to the corporation. Rollins v. LOR, Inc., 345 Ga. App. 832, 852 (4), 815 S.E.2d 169 (2018).

  3. Callicott v. Scott

    357 Ga. App. 780 (Ga. Ct. App. 2020)   Cited 5 times
    Finding that a new claim made for the first time in response to a motion for summary judgment did not satisfy the liberal requirements of the Georgia Civil Practice Act for notice pleading because the complaint was not amended to add the new claim and the defendants were not given reasonable notice of the claim or an opportunity to frame a responsive pleading to the claim

    Because such an action seeks to redress a wrong sustained by the corporation rather than the individual plaintiff, "[i]t has long been recognized ... that the corporation is a proper and indispensable party." Kilburn v. Young , 244 Ga. App. 743, 744 (1), 536 S.E.2d 769 (2000) (citation and punctuation omitted). In contrast, in a direct shareholder action, the shareholder sues on her own behalf for injuries done to her in her individual capacity by corporate fiduciaries, and any damages recovered go to the shareholder rather than the corporation.

  4. Bobick v. Cmty.

    321 Ga. App. 855 (Ga. Ct. App. 2013)   Cited 31 times
    Affirming dismissal under "right for any reason" doctrine

    Once joined and present before the court, the corporation is then realigned, if necessary, according to its real interests. Kilburn v. Young, 244 Ga.App. 743, 745(1), 536 S.E.2d 769 (2000), quoting Liddy v. Urbanek, 707 F.2d 1222, 1224 (11th Cir.1983). (a) “Where a shareholder alleges devaluation of shares due to corporate mismanagement,” the action must be brought as a shareholder derivative action.

  5. Barnett v. Fullard

    306 Ga. App. 148 (Ga. Ct. App. 2010)   Cited 23 times
    Holding that because all of corporation's shareholders were not parties to the lawsuit, risk of multiple lawsuits and possible prejudice to the other rights of other shareholders prohibited shareholder's direct action

    (Punctuation and footnote omitted.) Kilburn v. Young, 244 Ga. App. 743, 744 (1) ( 536 SE2d 769) (2000). In contrast, in a direct shareholder action, the shareholder sues on his own behalf for injuries done to him in his individual capacity by corporate fiduciaries, and any damages recovered go to the shareholder rather than the corporation.

  6. Grable v. Warren Hawkins Post of American Legion

    592 S.E.2d 502 (Ga. Ct. App. 2003)

    Accordingly, the trial court correctly dismissed plaintiffs' new complaint. See Kilburn v. Young, 244 Ga. App. 743, 746-747 ( 536 S.E.2d 769) (2000). See Charter Med.-Fayette County v. Health Planning Agency, 181 Ga. App. 184, 186(5) ( 351 S.E.2d 547) (1986) (trial court's ruling that appellant had not exhausted administrative remedies was not a holding that court lacked jurisdiction, but that appellant was not entitled to relief).

  7. Kilburn v. Young

    256 Ga. App. 807 (Ga. Ct. App. 2002)   Cited 3 times

    The trial court dismissed the Derivative Action for Kilburn's failure to make KYAMC a party, but this court reversed on the basis that Kilburn should have been permitted to add KYAMC as an indispensable party. See further Kilburn v. Young, 244 Ga. App. 743 ( 536 S.E.2d 769) (2000). Young testified that he was "outraged" that Kilburn had sued him in the Dismissed Action. By that time, KYAMC had "essentially closed," and he no longer felt threatened by Kilburn. He then filed the instant action against Kilburn, alleging that Kilburn, as KYAMC's majority shareholder, had breached fiduciary duties he owed to him, as a minority shareholder, by, among other things: (1) requiring KYAMC to pay certain of Galen Kilburn Company's expenses, including an amount due on the lease on the Galleria space; (2) misallocating proceeds from the CPI settlement; and (3) filing the Dismissed Action without having any authority to do so.

  8. Patel v. Patel

    4:14-cv-117 (S.D. Ga. Oct. 6, 2014)   Cited 3 times
    Finding that "only a derivative action is allowed [when] the Plaintiff's claims are founded upon injuries which are no different from that suffered by the corporation"

    The Court finds that because Plaintiff has not alleged a "special injury" sufficient to confer standing to proceed in a direct action against the Defendants and because the closely held corporation exception does not apply, Plaintiff's assigned claims can proceed only as a derivative action; therefore, GOPAL and NSP are the real parties in interest. See Kilburn v. Young, 536 S.E.2d 769, 771-72 (Ga. Ct. App. 2000) ("Because the right of action for corporation wrongs is in the corporation, the plaintiff shareholder in a derivative suit is at best a nominal plaintiff, and the corporation is the real party in interest."). B. But For the Assignment, Plaintiff Could Not Have Brought These Claims in Federal Court

  9. McGill v. Lion Place Condo. Ass'n

    291 Neb. 70 (Neb. 2015)   Cited 21 times
    In McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d 642 (2015), the Nebraska Supreme Court noted that in the past, Nebraska courts have referred to the concepts of claim preclusion and issue preclusion as res judicata and collateral estoppel, respectively.

    As expressed by the Supreme Court of Delaware, See, Schoon v. Smith, 953 A.2d 196 (Del.2008); Larsen v. Island Developers, Ltd., 769 So.2d 1071 (Fla.App.2000); Kilburn v. Young, 244 Ga.App. 743, 536 S.E.2d 769 (2000); Caprer v. Nussbaum, 36 A.D.3d 176, 825 N.Y.S.2d 55 (2006); Polikoff v. Adam, 67 Ohio St.3d 100, 616 N.E.2d 213 (1993).[t]o prevent a “failure of justice,” courts of equity granted equitable standingto stockholders to sue on behalf of the corporation “for managerial abuse in economic units which by their nature deprived some participants of an effective voice in their administration.”

  10. Ex Parte Tiffin

    879 So. 2d 1160 (Ala. 2003)   Cited 14 times
    Recognizing shareholder derivative suits to involve "`nominal plaintiff representing the corporation,' which is the `real party in interest'"

    To be sure, this action began as a shareholder derivative suit, in which the shareholders are "nominal plaintiff[s] representing the corporation," which is the "real party in interest." Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 370, 374 A.2d 1051, 1055 (1977) (emphasis added); see also Kilburn v. Young, 244 Ga. App. 743, 744, 536 S.E.2d 769, 771 (2000). However, this action is no longer a shareholder derivative suit.