STEPHEN LINDSAY, SPECIAL ADMINISTRATOR OF THE ESTATE OF MARY F. LINDSAY, ET AL., APPELLANTS,
PATRICIA M. FITL, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES G. FITL, APPELLEE
[Copyrighted Material Omitted]
from the District Court for Douglas County: MARLON A. POLK,
M. White, C. Thomas White, and Amy S. Jorgensen, of White &
Jorgensen, for appellants.
S. Degan, of Husch Blackwell, L.L.P., for appellee.
C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, STACY, and
Neb. 678] Kelch, J.
Lindsay, Mary H. Lindsay, Daniel Lindsay, Michael Lindsay,
Alice Lindsay, Stephen Lindsay, and Marguerite Ford
(collectively the Lindsays) filed suit against James G. Fitl
(Fitl) for breach of various fiduciary duties. A motion to
dismiss was granted on the bases that the Lindsays'
claims were derivative and that they were divested of their
standing when the Federal Deposit Insurance Corporation
(FDIC) filed an action in federal court. Now, the Lindsays
have appealed to this court. We affirm.
case arises out of the Lindsays' claim that Fitl, another
minority shareholder, breached fiduciary duties in connection
[293 Neb. 679] with his role as an officer and director of
Mid City Bank, Inc., and the 304 Corporation. The Lindsays
were minority shareholders of the 304 Corporation, a Nebraska
corporation, its principal asset being Mid City Bank.
unrelated to issues presented in this appeal, we note that
the Lindsays have twice amended their complaint to reflect
substitutions of the parties. Mary F. Lindsay passed away in
2013, and in August 2014, Stephen Lindsay, as the special
administrator of her estate, was substituted in her place.
Defendant Fitl also passed away, and in the third amended
complaint, Patricia M. Fitl, the personal representative of
Fitl's estate (personal representative), was substituted
in his place.
August 2010, the Nebraska Department of Banking and Finance
and the FDIC began a joint examination of the condition of
Mid City Bank. On November 4, 2011, the Department of Banking
and Finance appointed the FDIC as receiver of the bank,
stating as its reason that " 'large commercial real
estate loan and poor management practices . . . led to a
deterioration of the bank's capital'" and that
the department was left with " 'no option but to
declare the insolvent institution receivership.'"
After some time, the bank reopened, and the receiver
continued to operate the bank, which was in good standing as
of the date of the hearing. The FDIC did not place any of the
304 Corporation's other assets into receivership.
17, 2012, the Lindsays filed their first complaint against
defendant Fitl, now defendant personal representative,
alleging breach of fiduciary duties. The complaint was
amended with minor changes in August and October 2014 and in
April 2015. The ...