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Nickell v. Shanahan

Supreme Court of Missouri

July 29, 2014

Daniel B. Nickell, Appellant,
v.
Michael F. Shanahan, Sr., et al., Respondents

Page 224

APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS. The Honorable Joan L. Moriarty, Judge.

Nickell was represented by Francis A. Bottini Jr. of Bottini & Bottini Inc. in LaJolla, California; Timothy J. Becker and Tim E. Dollar of Dollar, Burns & Becker LC in Kansas City and Richard B. Hein of The Hein Law Firm LC in St. Louis.

The DRS chief executive officer and chairman was represented by Lisa A. Pake, Robert T. Haar and Michael A. Brockland of Haar & Woods LP in St. Louis.

The other ESSI defendants were represented by James G. Martin, Edward L. Dowd Jr., James F. Bennett, John D. Comerford and Erika M. Anderson of Dowd Bennett LLP in St. Louis; Erwin O. Switzer III, Richard E. Greenberg, Wendy S. Menghini and Michael A.T. Schwalbert of Greensfelder, Hemker & Gale PC in St. Louis; Jim J. Shoemake of Guilfoil Petzall & Shoemake LLC in St. Louis; Eric M. Walter, E. Calvin Matthews IV, Jeffrey T. McPherson and F. Scott Galt of Armstrong Teasdale LLP in St. Louis; Robert Schultz and Ronald J. Eisenberg of Schultz & Associates LLP in Chesterfield; Barry A. Short, Evan Z. Reid and Steven D. Hall of Lewis Rice & Fingersh LC in St. Louis; David von Gontard and Howard A. Wittner of Wittner, Spewak & Maylack PC in St. Louis; Jack B. Spooner of Spooner Law LLC in St. Louis and Thomas W. Wack of Bryan Cave LLP in St. Louis.

Lillian Theresa Ruyle and Linda Ann Hoffman, who filed a brief as friends of the Court, were represented by John L. Davidson of John L. Davidson PC in St. Louis.

Richard B. Teitelman, Judge. Russell, C.J., Fischer, Stith, Draper and Wilson, JJ., and Luber, Sp.J., concur. Breckenridge, J., not participating.

OPINION

Page 225

Richard B. Teitelman, Judge.

Daniel Nickell appeals a judgment dismissing Counts I through III of his second amended petition against Michael F. Shanahan Sr., Michael F. Shanahan Jr., David Mattern, Thomas J. Guilfoil, Kenneth E. Lewi, Crosbie E. Saint, Earl W. Wims, Gary C. Gerhardt, Gerald A. Potthoff, Steven L. Landmann and Mark S. Newman (" Respondents" ).[1] Nickell's petition alleged individual claims against the Respondents for damages resulting from alleged fraud and breach of their fiduciary duties as corporate officers and directors. The circuit court sustained Respondents' motion to dismiss. This Court holds that Nickell's claims alleged claims that are derivative rather than individual. The judgment is affirmed.[2]

Facts

The underlying suit seeks recovery of alleged damages resulting from the merger between Engineered Support Systems Inc. (" ESSI" ) and DRS Technologies Inc. (" DRS" ). ESSI merged with DRS in January 2006. All of the Respondents were officers or directors of ESSI, except Newman, who was the chief executive officer

Page 226

and chairman of DRS. Nickell alleged that he was an ESSI shareholder and that he sold his ESSI stock ...


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