IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34827
STEPHEN BUSHI, M.D., )
)
Plaintiff-Appellant, )
)
v. )
)
SAGE HEALTH CARE, PLLC, an Idaho ) Boise, January 2009 Term
limited liability company; CHARLES C. )
NOVAK, M.D.; DAVID A. KENT, M.D.; and ) 2009 Opinion No. 30
ROBERTO NEGRON, M.D., )
) Filed: March 4, 2009
Defendants-Respondents. )
------------------------------------------------------- ) Stephen Kenyon, Clerk
SAGE HEALTH CARE, PLLC, an Idaho )
limited liability company; CHARLES C. )
NOVAK, M.D.; DAVID A. KENT, M.D.; and )
ROBERTO NEGRON, M.D., )
)
Counterclaimants-Respondents, )
)
v. )
)
STEPHEN BUSHI, M.D., )
)
Counterdefendant-Appellant. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Honorable Cheri C. Copsey, District Judge.
The decision of the district court is affirmed in part, vacated in part, and remanded
for further proceedings.
Hawley, Troxell, Ennis & Hawley, Boise, for appellant. Steven Schossberger
argued.
Capitol Law Group, Boise, and Munther Goodrum Sperry, Boise, for respondents.
Forrest Goodrum argued.
______________________________________________
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HORTON, Justice
This is an appeal from a district court’s grant of summary judgment in favor of Sage
Health Care, PLLC (Sage), Charles C. Novak, M.D., David A. Kent, M.D., and Roberto Negron,
M.D. (collectively referred to as Respondents). Stephen Bushi, M.D., (Bushi) appeals the district
court’s summary judgment ruling that Respondents acted properly in terminating Bushi’s
membership in Sage and its award of attorney fees to Respondents. We affirm in part, vacate in
part, and remand this case for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1994, licensed psychiatrists, Charles C. Novak, Stephen T. Bushi, David A. Kent, and
Cantril T. Nielsen, formed The Sage Group, LLC, under the Idaho Limited Liability Act—I.C.
§§ 53-601 et seq. In 1996, the members changed the limited liability company’s name to Sage
Behavioral Health Care, LLC. In 1997, the members again changed the LLC’s name to Sage
Health Care, PLLC. Each of the original members contributed $2,000 and held a 25% interest in
the LLC. Dr. Nielsen subsequently withdrew from Sage, and Dr. Roberto Negron acquired a
25% ownership interest in Sage.
All the members of Sage were signatories to the operating agreement, including
amendments. The agreement vested equal management rights in the members. It provided that
to amend its terms, consent of all but one of the members was required. It also addressed the
grounds for dissociation of its members. Mandatory dissociation would occur if a member
withdrew with the consent of the majority of the remaining members or with the death or decree
of incompetency of a member. A member could be dissociated by a majority vote of the other
members upon the happening of the following: bankruptcy of the member; attachment or levy
upon the member’s interest; the member’s loss of professional license; a finding by the
member’s professional society that the member is guilty of an ethical violation; the member’s
inability to obtain professional liability insurance; or the member’s conviction for a felony. The
operating agreement also provided a calculation for determining the value of a member’s interest
upon dissociation.
Starting around 2002, Bushi began to date a nurse practitioner employed at Sage. This
was not prohibited under the terms of the operating agreement; however, because the other
members had concerns about potential liability stemming from the relationship, Sage arranged
for Bushi to have no role in supervising the nurse practitioner.
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In July 2003, Sage obtained a business line of credit loan from Wells Fargo Bank, which
was intended to serve as a source of liquidity for Sage if and when it was needed. Sage never
used the line of credit and never approved its use by any member. In October 2005, Respondents
received correspondence from Wells Fargo indicating that nearly $45,000 had been borrowed on
the line of credit at 15.5% interest. Respondents learned that Bushi had applied for and received
funds on Sage’s line of credit based solely on his signature; Respondents had not consented to or
known about this extension of credit. The name on the line of credit account was listed as “Sage
Health Care, PLLC Stephen Bushi,” and Bushi maintains that he believed that this line of credit
was his personal line of credit, not a business line of credit. After Respondents confronted him,
Bushi admitted he had borrowed the funds on the line of credit and used them for his personal
expenses. Respondents demanded he repay the funds to Wells Fargo.
At a members’ meeting on October 27, 2005, Respondents, according to Bushi, informed
him they wanted him out as a member of Sage because he was dating the nurse practitioner. The
second item on the agenda for that meeting states “discuss NP.” After this meeting, concerned
about his future with Sage, Bushi joined another psychiatry group in November 2005. Bushi
thought he was within his rights under the operating agreement to join the competing group. The
minutes from a December 8, 2005 members’ meeting reflect that Respondents voted to deny
Bushi profit sharing in 2006, and that “one reason for him not being involved with the profit
sharing was due to his connection with [Sage’s] competitor.” At this time, Respondents stopped
scheduling Bushi to provide services for various Sage contracts in which he had previously been
participating.
At that same December 8, 2005 meeting, Respondents also offered to buy out Bushi’s
share in Sage for a figure prepared by Sage’s accountant and told Bushi he needed to decide
whether to accept the offer by January 2006. Bushi thought the offer was “ridiculous” and told
Respondents he would not comment on any amount until he had spoken to his attorney.
At a members’ meeting on January 17, 2006, Respondents presented Bushi with a non-
compete agreement that would have prohibited him from participating in any practice competing
against them. In return, Bushi would be paid $15,000 for his withdrawal and dissociation from
Sage and relinquishment of any and all rights of ownership in Sage. Following this meeting,
Bushi’s counsel wrote a letter to Respondents rejecting their offer and explaining that Bushi
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would continue as a member and retain his rights, including his right to a share in the profits of
Sage, until a mutually satisfactory agreement had been reached.
On January 24, 2006, Respondents served Bushi notice that a members’ meeting would
be held on January 30, 2006. The notice stated that three items were on the agenda: an
amendment to the operating agreement; following the amendment, the termination of the
membership of a member pursuant to the operating agreement as amended; and continuation of
the business. Bushi’s counsel appeared at the meeting by proxy in Bushi’s absence. At the
meeting, Respondents voted to amend the operating agreement to require mandatory dissociation
of a member upon an affirmative vote by all but one of the members. Following the amendment,
Respondents voted—with Bushi dissenting—to dissociate Bushi, effective immediately.
Applying the formula in the operating agreement, Sage’s accountant determined that the value of
Bushi’s membership interest as of January 30, 2006 was $11,245.
In a letter dated July 11, 2006, Respondents sent two checks to Bushi, one for $11,245
(for his membership interest) and one for $5,138.27 (for his 2006 profit share and for the
remainder of his 2005 profit share, the first part of which Bushi had directed be put towards
paying off the Wells Fargo credit line). These were tendered as full payment upon Bushi’s
dissociation. By letter dated July 18, 2006, Bushi’s attorney refused tender of the two checks
and returned them.
As of June 6, 2006, Bushi had not paid off the Wells Fargo credit line and Sage continued
to be liable for that loan. Respondents filed a civil action against Bushi in the Fourth Judicial
District. After the suit was filed, Bushi paid all amounts due and owing to Wells Fargo, and
Respondents dismissed the lawsuit.
Bushi filed the instant case on October 19, 2006, asserting claims for breach of fiduciary
duty, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of
operating agreement, and seeking declaratory relief and an equitable accounting. Respondents
filed an answer and counterclaim, asserting in the first count of the counterclaim that Bushi
breached the operating agreement through his use of the Wells Fargo credit line and seeking in
the second count declaratory relief related to the validity of their actions in amending the
operating agreement.
Bushi moved to dismiss count one of the counterclaim, which the district court granted
on grounds that the claim was moot. This decision has not been appealed. Between the time
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Bushi filed the motion to dismiss and when the court granted it, Respondents filed a motion for
summary judgment. As to the viable portion of the counterclaim that remained following
dismissal of the first count, Respondents asked the court to grant summary judgment as follows:
declaring that Bushi’s membership in Sage was properly terminated under the terms of the
operating agreement as amended and the Idaho Limited Liability Company Act; declaring that
the value of Bushi’s membership was properly determined under the terms of the operating
agreement and in compliance with the terms of the Idaho Limited Liability Company Act;
declaring that the profits of Sage were properly determined and distributed among the members
in accordance with the signed written agreements of the members regarding distribution of
profits; and awarding attorney fees and costs to Respondents in the action as a prevailing party.
The district court granted Respondents’ motion for summary judgment, finding that:
Respondents did not breach the contract with Bushi by amending the operating agreement to
allow his involuntary dissociation; Bushi’s allegations of breach of the covenant of good faith
and fair dealing did not create an issue of material fact that precluded summary judgment; there
were no issues of material fact precluding summary judgment on Bushi’s claim for breach of
fiduciary duty; and the valuation provisions upon dissociation were clear and unambiguous and
Sage’s valuation followed those provisions. The court awarded Respondents $73,233.19 in
attorney fees pursuant to I.C. § 12-120(3) as well as $5,665 in discretionary costs for expert
witness fees.
Bushi timely appealed the district court’s decision. Respondents ask for attorney fees on
appeal.
II. STANDARD OF REVIEW
When this Court reviews a trial court’s decision on summary judgment, it employs the
same standard as that properly employed by the trial court when originally ruling on the motion.
Kolln v. Saint Luke’s Reg’l Med. Ctr., 130 Idaho 323, 327, 940 P.2d 1142, 1146, (1997) (citing
Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 529, 887 P.2d 1034, 1036 (1994)). Disputed
facts are construed in favor of the non-moving party, and all reasonable inferences that can be
drawn from the record are drawn in favor of the non-moving party. Lockheed Martin Corp. v.
Idaho State Tax Comm’n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006). “Summary judgment
is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if
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any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Id.
III. ANALYSIS
Bushi challenges the district court’s grant of summary judgment as to his claims for
breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty. Bushi
also asks that we reverse the district court’s award of attorney fees and costs to Respondents.
We affirm the district court’s grant of summary judgment regarding Bushi’s claim for breach of
the implied covenant of good faith and fair dealing, vacate the district court’s grant of summary
judgment regarding Bushi’s claim for breach of fiduciary duty, vacate the district court’s award
of attorney fees below, and decline to award attorney fees on appeal.
A. The district court did not err when it granted summary judgment in favor of
Respondents on Bushi’s claim for breach of the implied covenant of good faith and fair
dealing.
The district court correctly decided that Respondents did not breach the implied covenant
of good faith and fair dealing. The court noted that “[t]he implied covenant of good faith and
fair dealing arises only regarding terms agreed to by the parties.” Taylor v. Browning, 129 Idaho
483, 491, 927 P.2d 873, 881 (1996) (citing Idaho First Nat’l Bank, 121 Idaho 266, 288, 824 P.2d
841, 863 (1991)). Furthermore:
No covenant will be implied which is contrary to the terms of the contract
negotiated and executed by the parties. The covenant requires “that the parties
perform in good faith the obligations imposed by their agreement,” and a
violation of the covenant occurs only when “either party . . . violates, nullifies or
significantly impairs any benefit of the . . . contract . . . .”
Idaho First Nat’l Bank v. Bliss Valley Foods, 121 Idaho at 288, 824 P.2d at 863 (citations
omitted). Bushi can identify no specific term within the operating agreement that Respondents
breached by amending the agreement in order to involuntarily dissociate him.
Instead, Bushi argues that he was denied the benefits of the original operating agreement,
which did not expressly allow the other members of Sage to involuntarily dissociate him. In
response to this contention, the district court noted that:
[W]hile Bushi claims he “relied” on the then existing dissociation provisions
which the Members changed . . . the Court finds that the Operating Agreement
also specifically provides “[n]o Member shall have any vested rights in the
Company Agreement which may not be modified through an amendment to the
Company Agreement.” Article XIV, Section 1. Therefore, such reliance, to the
extent reasonable at all, was simply not justified and his argument is specious.
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The court reiterated that, in any case, “contract terms are not overridden by the implied covenant
of good faith and fair dealing.” (Citing Clement v. Farmers Ins. Exch., 115 Idaho 298, 300, 766
P.2d 768, 770 (1988); Olson v. Idaho State Univ., 125 Idaho 177, 182, 868 P.2d 505, 510 (Ct.
App. 1994)) (emphasis in original).
We agree with the district court. Bushi cannot show that Respondents violated, nullified,
or significantly impaired the operating agreement, and thus his contention that Respondents
acted in breach of the covenant of good faith and fair dealing fails to create an issue of material
fact precluding summary judgment. Bushi also argues that Respondents breached the covenant
by voting to deny Bushi profit sharing in 2006. Despite their vote, Respondents did tender to
Bushi his share of the 2006 profits, and Bushi has not alleged any further contract damages as a
result of the vote. Thus, this claim also fails to preclude summary judgment. Consequently, we
affirm the district court’s grant of summary judgment regarding Bushi’s assertion that
Respondents breached the implied covenant of good faith and fair dealing.
B. The district court erred by concluding that there were no genuine issues of material fact
precluding summary judgment on Bushi’s claim for breach of fiduciary duty.
In order “[t]o establish a claim for breach of fiduciary duty, [a] plaintiff must establish
that defendants owed plaintiff a fiduciary duty and that the fiduciary duty was breached.” Tolley
v. THI Co., 140 Idaho 253, 261, 92 P.3d 503, 511 (2004) (citation omitted). Respondents do not
contend that they did not owe Bushi fiduciary duties; rather, they assert that they did not breach
those duties. Although this is not a disputed point of law, this Court has not yet directly
addressed the question of whether members of a limited liability company owe each other
fiduciary duties. Accordingly, we address this threshold question before considering whether
there is a genuine issue of material fact whether there was a breach of Respondents’ fiduciary
duties to Bushi.
Idaho’s original act governing limited liability companies, the Idaho Limited Liability
Company Act, is codified at I.C. §§ 53-601 et seq.1 Idaho Code § 53-622 identifies certain
specific duties that members of an LLC owe to one another; however, it does not use the term
“fiduciary,” does not state that it is an exhaustive list of duties members owe one another, and
does not address the conduct at issue in this case. In 2008, the legislature enacted comprehensive
amendments to the statutory scheme through the Idaho Uniform Limited Liability Company Act,
1
The legislature repealed the Idaho Limited Liability Company Act effective July 1, 2010. 2008 S.L. ch.
176, §§ 5,6, p. 522.
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I.C. §§ 30-6-101 et seq. 2008 S.L. ch. 176, § 1, p. 480. The new act states unequivocally that
members of an LLC owe each other the fiduciary duties of loyalty and care. I.C. § 30-6-409(1).
Until July 1, 2010, the original act governs all limited liability companies formed prior to July 1,
2008 that do not elect to be subject to the new act. I.C. § 30-6-1104. Sage was formed prior to
July 1, 2008, and this litigation began prior to the enactment of the new act. Thus, the original
act governs this case.
While the original act does not expressly state that members of an LLC owe one another
fiduciary duties, it does state that “[u]nless displaced by particular provisions of this chapter, the
principles of law and equity supplement the provisions of this chapter.” I.C. § 53-668(2). It
appears that the majority of courts considering the issue have concluded that members of an LLC
owe one another the fiduciary duties of trust and loyalty. See NTS Am. Jur. 2d Limited Liability
Companies § 11 (2008) (citing McConnell v. Hunt Sports Ent., 725 N.E.2d 1193 (Ohio App.
1999) (holding a limited liability company, like a partnership, involves a fiduciary relationship);
Purcell v. Southern Hills Investments, LLC, 847 N.E.2d 991 (Ind. App. 2006) (holding that
common law fiduciary duties, similar to the ones imposed on partnerships and closely-held
corporations, are applicable to Indiana LLCs)). We conclude that, under Idaho’s original LLC
act, members of an LLC owe one another fiduciary duties.
Generally, whether a fiduciary has breached his duty is a question of fact. See First Bank
& Trust of Idaho v. Jones, 111 Idaho 481, 484, 725 P.2d 186, 189 (Ct. App. 1986) (holding
question of fact precluding summary judgment existed as to whether there was breach of
partners’ fiduciary duties regarding status of certain property as partnership property);
Musselman v. Southwinds Realty, 704 P.2d 814, 816 (Ariz. App. 1985) (noting rule of law that
whether a fiduciary duty has been breached is a question of fact for the jury).
In addressing Bushi’s claim for breach of fiduciary duty, the district court stated:
“Whether the other Sage Health Care Members owed a fiduciary duty to Bushi under these
circumstances and with respect to the buy-out offers is debatable.” (Emphasis added). By this
statement, the district court seems to have been acknowledging that the question of whether
Respondents breached their fiduciary duties to Bushi is a question of fact and that the facts
surrounding Bushi’s termination are disputed. The court went on to state however that “breach
of fiduciary duty is a tort claim and Bushi failed to introduce any case law that stands for the
proposition that a breach of fiduciary duty precludes enforcement of a contract.” This latter
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statement appears to reflect the trial court’s view that summary judgment on this issue was
appropriate as a matter of law, despite the existence of disputed facts, because those facts were
not material in light of the legal conclusion. This was error.
While it is true that generally a member of an LLC is not liable to the LLC or any other
member for actions taken in compliance with the operating agreement, the member must have
relied on the provisions of the agreement in good faith. Schafer v. RMS Realty, 741 N.E.2d 155,
175-76 (Ohio App. 2000). In Schafer, the Court of Appeals of Ohio considered whether Schafer,
a minority partner in a realty partnership, had a claim for breach of fiduciary duty against the
partnership and the other partners when, in compliance with the partnership agreement, the other
partners issued a capital call that Schafer could not meet. Id. at 162. Schafer’s failure to meet
the call triggered a provision in the partnership agreement that diluted the interest of any partner
who could not meet a call. Id. Schafer’s interest decreased from twenty-five to nineteen percent
pursuant to the dilution provision, and this result was, Schafer claimed, the true motivation for
the call. Id.
Like Respondents, the partners in Schafer urged that no breach of fiduciary duty had
occurred since their actions were taken in compliance with the partnership agreement. Id. at 175.
The Schafer court began its analysis of this argument by looking to its earlier decision in Leigh v.
Crescent Square, Ltd., 608 N.E.2d 1166 (Ohio App. 1992), in which one partner claimed the
other partners breached their fiduciary duties to him when they voted to expel him from the
partnership without prior notice. Id. at 1167-68. The Leigh court held that the lack of notice of
the ouster did not constitute a breach of fiduciary duty because the expulsion was not initiated in
order for the remaining partners to extract financial gain. Id. at 1170. The Schafer court
extrapolated from this holding that “whether a technical breach has occurred is not the sole
consideration” because “actions taken in accordance with [an operating] agreement can still be a
breach of fiduciary duty if [members] have improperly taken advantage of their position to
obtain financial gain.” 741 N.E.2d at 175.
The Schafer court then turned to a case in which action taken in accordance with an
operating agreement did result in a breach of fiduciary duties. Id. at 177-78. In Labovitz v.
Dolan, 545 N.E.2d 304 (Ill. App. 1989), the court held that a general partner who used economic
coercion to make the limited partners sell their shares to him at a reduced price breached his
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fiduciary duties to those partners, even though he acted in accord with the partnership agreement.
Id. at 306. Specifically, the Labovitz court stated that:
It is no answer to the claims that plaintiffs make in this case that partners have the
right to establish among themselves their rights, duties and obligations, as though
the exercise of that right releases, waives or delimits somehow the high fiduciary
duty owed to them by the general partner-a gloss we do not find anywhere in our
law. On the contrary, the fiduciary duty exists concurrently with the obligations
set forth in the partnership agreement whether or not expressed therein.
Id. at 310. Applying this rule, the Schafer court affirmed the jury’s finding that the other
partners breached their fiduciary duties to Schafer when they caused his ownership interest to be
diluted:
[W]hile the partnership agreement allowed the partners to vote for capital calls
“as required for the purposes of the partnership,” the majority’s ability in this
regard was “encumbered by [the] supreme fiduciary duty of fairness, honesty,
good faith, and loyalty” to their minority partner. Labovitz, 545 N.E.2d at 313.
741 N.E.2d at 179. Similarly, even if Respondents’ actions in dissociating Bushi were
technically in compliance with the terms of the operating agreement, this does not necessarily
bar Bushi’s claim for breach of fiduciary duty if those actions were improperly motivated.2
Respondents offer a number of reasons why they terminated Bushi, including: their
concern that Bushi’s romance could subject them to potential liability under federal law; their
view that Bushi’s association with a competitor of Sage breached the operating agreement; and,
finally, the fact that Bushi ran up approximately $60,000 in debt on Sage’s line of credit without
the knowledge or authorization of the other members of Sage, also in breach of the operating
agreement. Bushi, however, alleges that Respondents were motivated by financial gain. He
points out that each member of Sage, in applying for the line of credit with Wells Fargo, valued
his membership interest at $250,000. In contrast, Sage’s accountant determined that Bushi’s
2
Respondents cite to McConnell v. Hunt Sports Ent., 725 N.E.2d 1193 (Ohio App. 1999), for their argument
that compliance with an agreement precludes a finding of breach of fiduciary duty. Respondents correctly note that
in McConnell “the court held that there had been no breach of fiduciary duty because . . . [u]nder the operating
agreement, the members were not prohibited from engaging in a venture that was competitive with the company’s
investing in . . . a national hockey league franchise.” This holding does not defeat Bushi’s claim that Respondents
breached their fiduciary duties to him by terminating his membership in order to increase their individual interests in
Sage. The operating agreement in McConnell specifically allowed the members to take the action complained of in
that case. Id., 725 N.E.2d at 1212 (holding that it could not be considered a breach of fiduciary duty, in and of itself,
for a member of an LLC to compete against the LLC because the operating agreement allowed such competition).
By contrast, there is no provision in the Sage agreement that authorizes removal of members in order to increase the
value of the remaining members’ interests in the LLC.
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interest in Sage was $11,245 under the terms of the operating agreement governing dissociation
of a member.
Drawing all reasonable inferences in Bushi’s favor, this Court cannot conclude that there
is no genuine issue of material fact as to Respondents’ motivation in dissociating Bushi. A
reasonable person could infer that Respondents acted in bad faith by removing Bushi from the
LLC in order to advance their personal financial interests. If that were the case, Respondents
would be liable to Bushi despite their technical compliance with the operating agreement.
Accordingly, we vacate the district court’s grant of summary judgment with respect to this issue
and remand to the district court for further proceedings.
C. The award of attorney fees below is vacated and no attorney fees are awarded on
appeal.
Because we vacate the district court’s grant of summary judgment and remand for further
proceedings with respect to Bushi’s breach of fiduciary duty claim, Respondents can no longer
be considered the prevailing party below. Thus, we vacate the district court’s award of attorney
fees.
We conclude that there is no prevailing party on appeal because we have affirmed the
district court’s grant of summary judgment as to Bushi’s claim for breach of the implied
covenant of good faith and fair dealing and vacated the district court’s grant of summary
judgment as to Bushi’s claim for breach of fiduciary duties. Accordingly, we decline to award
attorney fees or costs on appeal.
IV. CONCLUSION
In light of the fact that Bushi is unable to point to any breach of the operating agreement,
we affirm the district court’s grant of summary judgment as to his claim of breach of the implied
covenant of good faith and fair dealing. However, because Respondents, despite having
technically complied with the operating agreement, may have acted in bad faith in terminating
Bushi, we vacate the district court’s grant of summary judgment to Respondents and remand for
further proceedings on Bushi’s claim of breach of fiduciary duty.3 The district court’s award of
attorney fees is vacated. No attorney fees or costs are awarded on appeal.
3
The district court found that, because Bushi had refused tender of his membership interest and outstanding
share of profits as determined under the operating agreement, he suffered no damages. This is incorrect, and
Respondents acknowledged at oral argument that barring a different outcome upon remand to the district court they
must re-tender those funds to Bushi.
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Justices BURDICK, W. JONES and Justice Pro Tem KIDWELL, CONCUR.
J. JONES, J., specially concurring.
I concur in the Court’s opinion, particularly the Court’s statement of the law. My
concern relates to the substance of Bushi’s claim for breach of fiduciary duty. In my estimation,
Bushi barely cleared the hurdle for surviving summary judgment. The record contained a bare
minimum of facts to back up Bushi’s assertion that the other members of Sage took the action
they did in order to obtain improper gains at his expense. It is somewhat difficult to overlook
the fact that Bushi improperly took advantage of the company’s line of credit for his personal
benefit. On the other hand, Sage did not assign major importance to this fact as a ground for
dissociating Bushi until well after the dissociation. In any event, I agree that there was just
enough in the record to allow him to survive summary judgment, leaving it to the trier of fact to
sort out these matters.
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