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Needham v. Kluver

Supreme Court of Montana

August 6, 2019

BARBARA A. NEEDHAM, individually and as Personal Representative of THE ESTATE OF CHARLES KELLY KLUVER, Plaintiffs and Appellees,
v.
KARSON KLUVER and GENIE LAND COMPANY, a Montana Corporation, Defendants and Appellants.

          Submitted on Briefs: April 3, 2019

          District Court of the Sixteenth Judicial District, In and For the County of Rosebud, Cause No. DV 17-35 Honorable Nickolas C. Murnion, Presiding Judge.

          For Appellants: Christopher J. King, Clark King & Michel, P.C., Worland, Wyoming

          For Appellees: John R. Christensen, Christensen Fulton & Filz, PLLC, Billings, Montana

          Joseph L. Breitenbach, Hedger Friend, PLLC, Billings, Montana

          OPINION

          James Jeremiah Shea, Justice.

         ¶1 Appellants Karson Kluver and Genie Land Company, a Montana Corporation, (collectively "Kluver") appeal the Order of Sixteenth Judicial District Court, Rosebud County, granting summary judgment in favor of Barbara Needham, in her capacity as the Personal Representative of the Estate of Charles Kelly Kluver (Estate), and denying Kluver's cross-motion for summary judgment. We address the following issue:

         Whether the District Court erred in granting summary judgment in favor of the Estate and by denying Kluver's cross-motion for summary judgment.

         ¶2 We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 On September 13, 1977, Genie Land Company (Genie) was incorporated by its first president, Genie Philbrick Fulmer. Fulmer was the grandmother of brothers Charles Kelly Kluver (Kelly) and Karson Kluver (Karson). On June 4, 2005, after Fulmer passed, Kelly and Karson became the sole shareholders of Genie. Each received one-half of Genie's corporate stock.

         ¶4 When Kelly and Karson became the sole shareholders, Article IV, Section 4 of Genie's corporate by-laws contained a transfer restriction provision, which provided:

Shares of stock shall be transferred only on the books of the company by the holder thereof and may be transferred only to (1) the corporation, (2) one or more descendants of GENIE PHILBRICK FULMER, or (3) a third party, however, any transfer to a third person who is not already a stockholder in the corporation must be approved in advance by vote or written consent of all of the remaining stockholders of the corporation. Further, upon the death of any stockholder, the corporation shall have the right to redeem the stock at its book value and for this purpose, book value is defined as the amount at which stock is carried in the books of the corporation on the basis of tangible assets and any undivided profits, but not including intangible assets.

         Article I, Section 8 of Genie's by-laws additionally provided that: "Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the shareholders entitled to vote with respect to the subject matter thereof." Finally, Article VII, Section 1 of Genie's by-laws provided that: "Amendments to these by-laws may be made by a vote of the stockholders representing a two-thirds majority ...


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