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Streck, Inc. v. Ryan Family, L.L.C.

Supreme Court of Nebraska

September 15, 2017

Streck, Inc., a Nebraska corporation, appellee,
Ryan Family, L.L.C., appellee, and Stacy Ryan, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF Ryan Family, L.L.C., appellant.

         1. Interventions: Appeal and Error. Whether a party has the right to intervene in a proceeding is a question of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

         2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         3. Interventions: Final Orders: Appeal and Error. An order denying intervention is a final order for purposes of appeal.

         4. Interventions: Final Orders. Neb. Rev. Stat. § 25-1315 (Reissue 2016) does not modify Nebraska's final order jurisprudence as it regards orders denying intervention.

         5. Interventions. As a prerequisite to intervention under Neb. Rev. Stat. § 25-328 (Reissue 2016), the intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action.

         6. ___. An indirect, remote, or conjectural interest in the result of a suit is not enough to establish intervention as a matter of right. Simply having a claim that arises out of the same facts as the claims at issue in the litigation does not constitute having a sufficient interest to support intervention.

         7. Interventions: Pleadings. A person seeking to intervene must allege facts showing that he or she possesses the requisite legal interest in the subject matter of the action.

         [297 Neb. 774] 8. ___: ___. For purposes of ruling on a motion for leave to intervene, a court must assume that the intervener's factual allegations set forth in the complaint are true.

         9. ___: ___ .A prospective intervenor can raise his or her claims or defenses, but those claims or defenses must involve the same core issue as the claims between the existing parties. Intervenors can raise only issues that sustain or oppose the respective contentions of the original parties.

         10. Interventions. An intervenor is bound by any determinations that were made before he or she intervened in the action. In other words, an intervenor must take the suit as he or she finds it.

         11. Corporations: Contracts. The Nebraska Uniform Limited Liability Company Act is a default statute; subject to certain enumerated exceptions, the act governs only when the operating agreement is silent.

         12. ___: ___. Under the Nebraska Uniform Limited Liability Company Act, a member of a limited liability company is deemed to assent to the operating agreement.

         13. Corporations. Under the Nebraska Uniform Limited Liability Company Act, in a manager-managed limited liability company, matters relating to the activities of the company are decided exclusively by the managers unless otherwise expressly provided in the act.

         14. Corporations: Actions: Interventions. The fact that a member of a limited liability company might experience reduced distributions, depending on the outcome of a lawsuit against the company, does not give the member a direct and legal interest in the lawsuit sufficient to support intervention.

         15. ___: ___: ___. For purposes of determining the right to intervene, a court generally treats actions by a member of a limited liability company in the same manner as actions by a shareholder of a corporation.

         16. Corporations: Actions: Parties. As a general rule, a shareholder may not bring an action in his or her own name to recover for wrongs done to the corporation or its property. Such a cause of action is in the corporation and not the shareholders. The right of a shareholder to sue is derivative in nature and normally can be brought only in a representative capacity for the corporation.

         17. Corporations: Actions: Parties: Interventions. When a corporation cannot or will not protect the interests of the stockholders, a stockholder may intervene in an action on behalf of the corporation for the shareholder's own protection. However, this is a very limited exception to the general rule that a shareholder may not bring an action in his or her own name to recover for wrongs done to the corporation or its property.

         [297 Neb. 775] 18. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed.

          Paul Heimann, Bonnie M. Boryca, and Karen M. Keeler, of Erickson & Sederstrom, PC, for appellant.

          John D. Stalnaker and Aimee K. Cizek, of Stalnaker, Becker & Buresh, P.C., for appellee Ryan Family, L.L.C.

          Thomas H. Dahlk and Victoria H. Buter, of Kutak Rock. L.L.P, and Ronald E. Reagan, of Reagan, Melton & Delaney, L.L.P, for appellee Streck, Inc.

          Heavican, C.J., Wright, Cassel, Stacy, and Funke, JJ.

          Per Curiam.

         In January 2016, Streck, Inc., filed a complaint against the Ryan Family, L.L.C. (L.L.C), in the district court for Sarpy County. Streck's complaint alleged the L.L.C. breached a lease agreement containing an option to purchase real property and sought specific performance. The L.L.C. responded and defended the action. In June, a member of the L.L.C. moved to intervene in her own behalf and on behalf of the L.L.C. She appeals from the district court's order denying her motion. We affirm.

         I. FACTS

         1. Parties

         Streck is a Nebraska corporation with its principal place of business in La Vista, Sarpy County, Nebraska. The L.L.C. is a Nebraska limited liability company composed of six members of the Ryan family, including Stacy Ryan (Ryan). The L.L.C.'s only asset is real property located in La Vista, which [297 Neb. 776] it leases to Streck, and the cash generated from the rental of that property.

         2. Lease Agreement

         The L.L.C. leased the property to Streck pursuant to an agreement dated December 1999 and subsequently amended. The lease gave Streck an option to purchase the property from the L.L.C. based on certain conditions. Streck claims it met the conditions and properly exercised the option. Based on the date Streck exercised the option, closing should have occurred no later than January 3, 2016. When no closing occurred. Streck filed suit against the L.L.C.

         3. Lawsuit Between Streck and L.L.C.

         Streck filed its complaint January 13, 2016, in the district court. It sought an order declaring the L.L.C. in breach of the lease and ordering specific performance of the option to purchase.

         The L.L.C. operating agreement vests all management duties in a management board consisting of comanagers Wayne Ryan and Connie Ryan. After being served with the complaint, the comanagers of the L.L.C. filed an application for appointment of a receiver to represent the L.L.C, citing a conflict which they described as follows:

Co-Manager Dr. Wayne Ryan believes the [L.L.C] must oppose Streck's Complaint as he believes Streck does not hold a valid Option to Purchase the Property due in part to an Event of Default pursuant to the Lease Agreement. Co-Manager Connie Ryan disagrees with Dr. Ryan, and the Co-Managers have been unable to agree on the management of the [L.L.C]
. . . Co-Manager Connie Ryan has declined Dr. Ryan's request to recuse herself from the management of the [L.L.C], and Dr. Ryan has similarly declined to allow Connie Ryan to serve as sole Manager of the [L.L.C] As
[297 Neb. 777] a result of the Co-Managers' disagreements, the [L.L.C.] is unable to retain legal counsel to respond to Streck's Complaint in the above-captioned case.
... In light of their disagreement, the Co-Managers believe that appointment of [a] Receiver for the [L.L.C.] is necessary and appropriate to respond to Streck's ...

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