concurring.
I agree with the result reached by the majority opinion in this case. Furthermore, I have no quarrel with the construction of the statutes set forth in the majority opinion. I find that I am impressed, however, with one of the contentions submitted by the Wyoming Production Credit Association and the Federal Land Bank of Omaha. Both insist, in their briefs, that the appellant, Gertrude S. Carroll, is not the real party in interest with respect to the claims asserted against them. This position is sound, and I would support the argument that the appellant is not the real party in interest with respect to the claims asserted in these cases.
The real party in interest question was raised by the Federal Land Bank of Omaha and the Wyoming Production Credit Association in their respective Amended Answers, each of which included a Motion to Dismiss. The question also was briefed, but the district court entered summary judgment in favor of each of these appellees rather than granting their respective motions to dismiss. In a Reply Brief of Appellant, filed in each case in response to the briefs of the respective appellees, the appellant rather summarily asserts that there is standing because of the claim of fraud against these appellees, and she argues that this is really a derivative action. The latter contention is a mischaracterization of the complaint.
The action which was pleaded on behalf of Mrs. Carroll sought to void conveyances by the corporation and requested individual damages for her with respect to property that had been converted by the appellees. The general rule appears to be that, in such instances, the cause of action is that of the corporation, which may be brought by a shareholder on behalf of the corporation in instances in which the responsible corporate officers will not pursue the action. 3A W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 1282,1283 at 606-609 (rev. perm. ed. 1986). There is an exception, which may be invoked in favor of a direct action against corporate officers, if the product of the derivative suit would result in the defaulting officers gaining control over the property or funds recovered because of their control positions in the corporation. 3A W. Fletcher, Cyclopedia of the Law of Private Corporations, supra, § 1282 at 608. Both the general rule and its exception have been recognized by this court. Lynch v. Patterson, Wyo., 701 P.2d 1126 (1985); Centrella v. Morris, Wyo., 597 P.2d 958 (1979); Smith v. Stone, 21 Wyo. 62, 128 P. 612 (1912). Applying those propositions to this lawsuit leads to the conclusion that the appellant properly could maintain this action in her own right as to the director and shareholder who is named as an appellee.
In effect, the reply brief suggests that the exception should be extended because of the participation by the Federal Land Bank of Omaha and the Wyoming Production Credit Association in the wrongful acts of the shareholder and director. The record, however, fails to support appellant’s theory, and she cites no authority that justifies applying the exception to an outsider. Under these circumstances, her interests as a shareholder adequately are protected by the derivative action against third parties. The action against these two appellees was required to be pursued as a derivative suit.
The pleadings do not appear to assert a derivative claim. The corporation is named as an appellee, which hardly seems consistent with a derivative action on behalf of the corporation, and the claim for damages is by the appellant for any conversion by either the Wyoming Production Credit Association or the Federal Land Bank of Omaha of any properties of the corporation, Carroll and Carroll. If an action such as this may be pursued, how can appellees such as the Wyoming Production Credit Association and the Federal Land Bank of Omaha be protected against having to pay the same claims twice? It does not seem that the concepts of either res judicata or collateral estoppel would foreclose Carroll and Carroll from asserting a claim against these appellees based upon the same contentions as those presented by the appellant. Prior recovery by the appellant, however, would not bar the subsequent recov*875ery by the corporation under any concept of privity. See 3A W. Fletcher, Cyclopedia of the Law of Private Corporations, supra, § 1282 at 606-611. The only estoppel that could arise would be out of a derivative suit, which I submit this case is not.
I would affirm the trial court but upon the ground that the respective complaints failed to state a claim upon which relief can be granted.