dissenting.
Respectfully, I dissent.
The Majority Opinion errs on a number of important points. The decision of the Court of Appeals should be reversed, and the Judgment of the trial court reinstated.
This case was tried before a Special Commissioner. His Findings of Fact and Recommended Order were adopted in the Judgment of the trial court (with certain corrections not relevant to this appeal). Substantial evidence heard at trial was never transcribed and is not part of the appellate record. Nevertheless, erroneously, the Court of Appeals, and now our Court, holds the evidence insufficient to “justify” the “holding". This is nothing more than a substitution of fact finding.
The trial court’s Findings of Fact should not be set aside “unless clearly erroneous” (CR 52.01), which requires a complete transcript of evidence. As stated in Porter v. Harper, Ky., 477 S.W.2d 778, 779 (1972), absent a record the court is “required to assume that the evidence supports the finding[s] of the lower court.”
Further, the statement of facts in the Majority Opinion, as did the Court of Appeals, leans heavily upon appellate fact-finding, findings that supposedly should have been made, whereas CR 52.04 pro*608vides that a “final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.” Respondents’ objections to the Commissioner’s Report did not preserve the present findings of error. At oral argument respondent’s counsel conceded that “at this point” respondents do not “claim the evidence is insufficient to support the findings of the trial court.” Counsel’s position was that the trial court made certain findings and misapplied the law. As stated in Bertelsman and Philipps, 7 Kentucky Practice, Rules of Civil Procedure, 4th ed., p. 248:
“A party who contends that a judgment is not supported by the findings of fact must petition the court for specific findings....
The failure to make a finding or findings will not justify reversal or remand in the appellate court unless such failure has been brought to the attention of the trial court.”
The issues before us arise by reason of a third-party complaint filed by Estep against Joseph and Mildred Werner1 charging the Werners, as the majority stockholders in a closely-held corporation, with various acts of fraud, bad faith and self-dealing in corporate property, and in depriving Estep of his employment with the corporation by “contrived manipulation and willful, malicious, interference with Estep’s contract rights.”
Our Majority Opinion states:
“It should be noted at the outset that movant did not claim ‘breach of fiduciary duty’ in connection with the termination of his employment ... in the original complaint.”
Since W & E Welding Co., not the mov-ant, filed the original Complaint, this quote makes little sense. Movant did appropriately charge that he “has been deprived of his employment,” as stated above, in his Third Party Complaint against the Wer-ners, and he reenforced this charge in paragraph 2 of Count Four, stating:
“This fraudulent conspiracy to deprive Estep of his employment rights [with the corporation] amounts to a tortuous [sic.] interference with said contract rights.... ”
The principal issue was whether the mov-ant was divested of his employment and his interest in the corporation by a downturn in the business or by the self-dealing manipulation of his co-shareholders. The Commissioner found:
“The net effect of this transaction is that Joe Werner, the former equal partner of James Estep, has an opportunity to continue to work and James Estep became unemployed. Joe Werner had a fiduciary duty to his partner, James Estep, to assure that James Estep would be given the same opportunity as he in the running of the business and to live up to the agreement that was entered into more than 25 years ago that each would remain employed so long as there was a company. The effect of what has occurred is that Joseph Werner has remained employed throughout the transaction and James Estep has been terminated.”
Movant proved his claim, and proved damages for such deprivation, to the satisfaction of the trial court. We err to set aside the trial court’s Findings and Judgment in this respect on the basis of the incomplete, inadequate and insufficient record before us.
The principal error in the Majority Opinion is its conclusion that “it is not necessary to discuss the existence and extent of” “fiduciary duties of utmost good faith, fair dealing, and full disclosure among shareholders in a closely-held corporation” “in the State of Kentucky in this opinion.” It was precisely to review this issue that we accepted discretionary review, and the issue is squarely before us.
*609The whole thrust of Estep’s case, as presented in the Special Commissioner’s Findings of Fact, was manipulation of the corporation to destroy the value of his shares, which were 49% of the common stock, to terminate his employment, which was the principal return on his corporate interest, and to transfer the corporate assets to a second, new corporation employing the Werners and their sons to continue the business sans Estep. Contrary to the Opinion of the Court of Appeals, the scope section in KRS Chapter 271A does not limit the duties of the shareholders in a closely-held corporation and their business dealings with minority shareholders to those expressly delineated therein. Nor does KRS 271A.205 foreclose the present action. Our Majority Opinion concedes “there may be certain nonstatutorily imposed fiduciary duties which exist among shareholders in closely-held corporations.” This principle is now part of the mainstream of corporate law. Indeed, we applied it in Aero Drapery of Kentucky, Inc. v. Engdahl, Ky., 507 S.W.2d 166, 168 (1974). Thirty-five years ago, in Krebs v. McDonald Ex’x., Ky., 266 S.W.2d 87, 89 (1953), we acknowledged “shareholders in closely-held corporations bear a personal relationship to one another similar to that of a partnership.”
In this Opinion our Court should embrace, as a standard of conduct reasonably owed from one co-shareholder to another in a closely-held corporation, the rule stated in Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 328 N.E.2d 505, 515 (1975):
“[W]e have defined the standard of duty owed by partners to one another as the [single] ‘utmost good faith and loyalty.’ [citations omitted]. Stockholders in close corporations must discharge their management and stockholder responsibilities in conformity with this strict good faith standard. They may not act out of avarice, expediency or self-interest in derogation of their duty of loyalty to the other stockholders and to the corporation.”
The movant’s Brief cites a growing number of cases, from twenty-one jurisdictions, using this standard, judicially determined. We should apply this rule to this case. The trial court properly imposed fiduciary duties of good faith and fair dealing among the shareholders of a closely-held corporation. The Court of Appeals erred in rejecting the existence of such duties.
The Majority Opinion, as did the Court of Appeals, also erred in striking down the trial court’s award of punitive damages, which was based on the “self-dealing personal transactions” of the majority shareholders in violation of their “duty to disclose personal dealings which benefit them.” This in turn was based on the Special Commissioner’s finding in “ISSUE NUMBER 1” of “an attempt to defraud Plaintiff” by concealing payment of rental charges from the corporation to the majority stockholders. A fair reading of the Special Commissioner’s fact finding is that fraud occurred but there was no loss of funds because the amount secretly charged as rent was reasonable. Where there is fraud and self-dealing of this nature, nominal damages would have been proper, and as such justify an award of punitive damages. Cf. Island Creek Coal Co. v. Rodgers, Ky.App., 644 S.W.2d 339 (1982).
We should reverse the Court of Appeals and reinstate the trial court’s Judgment.
LAMBERT, J., joins this dissent.
. The original Complaint filed by W & E Welding Co. against Estep was either dismissed or abandoned, and never came to trial,