Mirra, et al. v. Mirra, et al. (Lawyers Weekly No. 12-008-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV03857-BLS2 ____________________ LEONARD MIRRA and SANDRA CAPO, individually and derivatively on behalf of MIRRA CO., INC. v. NORINO MIRRA; MIRRA CO., INC.; CHRISTOPHER MIRRA; NATALIE WRIGHT; and ANTHONY MIRRA, JR. ____________________ MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT Mirra Co., Inc., is a closely-held corporation. Leonard Mirra (known as Lenny) and his sister Sandra Capo are minority shareholders. Norino Mirra and his deceased brother Ralph Mirra together were the majority shareholders and ran the Company during the relevant period. Lenny and Sandra claim in Counts I to III of their second amended complaint that Norino (who is their grand uncle, because he was their father’s uncle) is liable to them personally for breach of fiduciary duty, breach of contract, and tortious interference with their advantageous relationships with the Company. Count IV seeks an accounting of all transactions between the Company and either Norino, Ralph, or entities they or their immediate family controlled. The pending motions for summary judgment concern Plaintiffs’ other claims. Count V seeks a declaration that Norino’s transfers of new shares of Company stock to his children Christopher Mirra and Natalie Wright violated stock transfer restrictions that were agreed to by Norino and all other shareholders. The Court will DENY Chris and Natalie’s motion for summary judgment on this claim, and instead order declaratory relief in favor of Lenny and Sandra, because the shareholders’ Redemption Agreement barred the challenged transfers. Count VI asserts a derivative claim on behalf of the Company alleging that Norino breached his fiduciary duties by usurping a corporate opportunity to develop the Longview apartments and by failing to pay the Company all it was reasonably owed for its work on and other contributions to the Longview project. The Court will ALLOW Norino’s motion for summary judgment on this claim because Plaintiffs lack standing to assert it. Lenny and Sandra do not meet the statutory requirement that derivative claims may only – 2 – be asserted on behalf of a corporation by someone who owned company stock at the time of the alleged wrongdoing. The undisputed facts show that Norino’s alleged breaches of fiduciary duty to the Company all took place before Lenny and Sandra acquired their Company stock. There is no evidence that Norino engaged in any continuing wrong thereafter. And there is no fraudulent concealment exception to the contemporaneous ownership requirement for asserting corporate derivative claims. 1. Count V—Transfer of Shares to Chris Mirra and Natalie Wright. 1.1. Undisputed Material Facts. Norino Mirra, Sr., founded the Mirra Co., Inc., in 1953. At first he was the sole owner of the Company. Over time Norino Sr. transferred a 20 percent ownership interest to his […]