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O'MALLEY v. CASEY

No. 78-194.

589 P.2d 1388 (1979)

Robert J. O'MALLEY, Individually, and on behalf of himself and all other stockholders of Leigh Barron, Inc., a Colorado Corporation, Plaintiff-Appellee, v. Jack E. CASEY, Individually, and as an officer and director of Leigh Barron, Inc., d/b/a Leigh Barron Four Mile House, a Colorado Corporation, Defendant-Appellant, Leigh Barron, Inc., d/b/a Leigh Barron Four Mile House, a Colorado Corporation, and Rayma Sue Cummins, Individually, and as an officer and director of said corporation, Defendants.

Colorado Court of Appeals, Div. I.

January 11, 1979.

Attorney(s) appearing for the Case

Thomas & Esperti, P.C., James R. Martin, Denver, for plaintiff-appellee.

David Burnell Smith, Littleton, for defendant-appellant.

No appearance for defendants.

RULAND, Judge.

This is a stockholder's derivative action initiated pursuant to C.R.C.P. 23.1 by plaintiff, Robert J. O'Malley. Defendant Jack E. Casey appeals from a judgment awarded to defendant Leigh Barron, Inc., to compensate the corporation for salary paid to Casey. We remand the cause for additional proceedings.

The pertinent facts are not in dispute. Casey owned 65% of the outstanding shares of the corporation and plaintiff Robert J.

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