VERGERONT, J.
¶ 1 Four members of Lake Arrowhead Association, Inc., bring this action for a declaratory judgment construing a provision of the Association's bylaws relating to the annual assessments charged to members who, like them, own consolidated sites. The primary issue on appeal is whether these members may bring this claim directly, in their own right, or whether, as the circuit court concluded, the right to bring this claim belongs to the Association and therefore must be brought as a derivative claim under WIS. STAT. §§ 181.0740-181.0742 (2009-10).
¶ 2 We conclude that the claim asserted by the members is an individual claim belonging to each of the four members. We arrive at this conclusion because the claim is based on a direct injury to a right that is individual to each. Therefore, each may bring this claim on his or her own
¶ 3 Our conclusion that the circuit court erred in dismissing the action because the claim was not brought as a derivative claim requires that we reverse the court's denial of the members' motion for a plaintiff class certification pursuant to Wis. Stat. § 803.08.
¶ 4 In addition, for the reasons we explain in the opinion, we reverse the court's ruling that the joinder requirements of the declaratory judgment statute, WIS. STAT. § 806.04(11), require dismissal.
¶ 5 Accordingly, we reverse the court's order dismissing this action and remand for further proceedings consistent with this opinion.
¶ 6 Gilbert and Linda Ewer and Wayne and Mae Guenther (collectively, "the Ewers") own residential property that is subject to the Covenants for Lake Arrowhead, Town of Rome, Wisconsin, Adams County (the covenants). The Lake Arrowhead Association, Inc. is a Wisconsin non-stock corporation organized under WIS. STAT. ch. 181, and its bylaws incorporate the terms of the covenants. The covenants authorize the Association to charge and collect an annual assessment from the Ewers and other owners of property or lots who are subject to the covenants. The Association has approximately 1602 voting members.
¶ 7 The amount of the assessment that the Association charges its members varies depending upon the type of lot each member owns. The Association charges "nonconsolidated site" owners one assessment each year, and it charges "consolidated site" owners a one and one-quarter assessment each year.
¶ 8 The Ewers disagree that the covenants authorize the Association to charge consolidated site owners a one and one-quarter assessment each year. They filed this action seeking a declaratory judgment whether the covenants authorize the Association to charge consolidated site owners a one and one-quarter annual assessment instead of one annual assessment. The complaint alleges that certification of a plaintiff class of all consolidated site owners is proper. According to the Association's answers to the Ewers' interrogatories, the number of consolidated site owners is approximately 140.
¶ 9 The Association filed a motion for summary judgment contending that the Ewers' claim should be dismissed on two grounds. First, the Association contended, the claim is a "derivative" claim under the definition of Wis. Stat. § 181.0740 and therefore the Ewers had to comply with the requirements of §§ 181.0741-181.0742 for a "derivative proceeding," which, without dispute, they had not done. Second, the Association contended that the Ewers failed to comply with the joinder requirements of Wis. Stat. § 806.04, the Uniform Declaratory Judgments Act. The Ewers opposed dismissal on both grounds. Also before the court was the Ewers' motion for certification of a plaintiff class. The Association opposed this motion.
¶ 10 The circuit court granted the Association's motion and dismissed the complaint. The court held that the proper
¶ 11 On appeal the Ewers contend the court erred in concluding their claim is a derivative claim, erred in denying their request for class certification, and erred in dismissing their claim because of the joinder requirements of WIS. STAT. § 806.04(11). The Association responds that the circuit court was correct on each issue.
¶ 12 Our review on a motion for summary judgment is de novo, and we use the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-16, 401 N.W.2d 816 (1987). Where, as here, there are no disputed issues of fact, we decide which party is entitled to judgment as a matter of law. See WIS. STAT. § 802.08(2).
¶ 13 In the following paragraphs we first discuss the background law on derivative proceedings and then analyze the Ewers' claim. For the reasons we explain, we conclude the circuit court erred in deciding that the Ewers' claim belonged to the Association and must therefore be brought as a derivative claim under WIS. STAT. §§ 181.0740-181.0742. Instead, we conclude that the claim belongs to each of the Ewers as individuals and therefore each may bring it as a direct claim.
¶ 14 As a non-stock corporation, the Association is governed by WIS. STAT. ch. 181. Under WIS. STAT. § 181.0740, a "derivative proceeding" is "a civil suit in the right of a corporation." WISCONSIN STAT. § 181.0741 provides that "[a] derivative proceeding may be brought in the right of a corporation ... to procure a judgment in its favor by one or more members having 5% or more of the voting
¶ 15 As already noted, there is no dispute that the Ewers have not complied with the requirements for bringing a derivative claim. Thus, the issue presented is whether the claim for a declaratory judgment construing the disputed provision is a claim based on "the right of" the Association, and, thus, a claim that may be brought by a member or members only as provided in WIS. STAT. §§ 181.0741-181.0742. This appears to be an issue of first impression in Wisconsin.
¶ 16 In the absence of case law interpreting or applying WIS. STAT. § 181.0740, we turn to the case law interpreting the same definition of "derivative proceeding" for business corporations. See § 180.0740(2). The parties agree this case law is relevant, although they disagree on how it applies to the facts of this case.
¶ 17 The fundamental inquiry in determining whether a claim must be brought as a derivative claim under WIS. STAT. § 180.0740(2) is: "Whose right is sought to be enforced by the ... cause of action?" Rose v. Schantz, 56 Wis.2d 222, 229, 201 N.W.2d 593 (1972). If the only direct injury is to the corporation, then the right to bring the action belongs solely to the corporation. Id. This is true even though the direct injury to the corporation "may have a subsequent impact on the stockholders' shares." Id. This injury to the stockholders is secondary to the injury to the corporation, which is the primary injury. Id.
¶ 18 Applying this "primary injury" test, courts have concluded that the following claims belong only to the corporation and therefore must be brought as a derivative action under WIS. STAT. § 180.0740(2): a claim for breach of fiduciary duty against officers and directors who allegedly engaged in a plan to deplete the corporation of its cash reserves so that one of them could engage in a competing business, id. at 224, 229, 201 N.W.2d 593; claims of breach of fiduciary duty, judicial dissolution, fraudulent transfer, and conversion based on allegations of a liquidation plan that would transfer all net corporate assets to a charitable foundation, thereby depleting the value of all stock, Borne v. Gonstead Advanced Techniques, Inc., 2003 WI App 135, ¶¶ 14, 16, 266 Wis.2d 253, 667 N.W.2d 709; a claim for breach of fiduciary duty against a majority shareholder alleging that it had rejected the opportunity for the corporation to purchase another company and instead purchased that company itself, Notz, 316 Wis.2d 640, ¶¶ 17, 27, 764 N.W.2d 904; and misappropriation from the corporation, Krier v. Vilione, 2009 WI 45, ¶ 31, 317 Wis.2d 288, 766 N.W.2d 517.
¶ 19 In contrast to a claim that belongs to the corporation, a claim based on the impairment of an individual right of a shareholder belongs to the shareholder and is properly brought by the shareholder directly. Rose, 56 Wis.2d at 228-29, 201 N.W.2d 593. "In order for a shareholder to have an independent claim, the injury
¶ 20 One example of a proper direct claim by a shareholder is found in Jorgensen v. Water Works, Inc., 2001 WI App 135, 246 Wis.2d 614, 630 N.W.2d 230 (Jorgensen II). There we concluded that the minority shareholders of a closely held corporation could maintain a direct claim for breach of fiduciary duty by the directors when the directors ceased making distributions to the minority shareholders while continuing to pay distributions to themselves, the majority shareholders. Id., ¶ 18. We reasoned that each shareholder has a right to be treated fairly by the directors, that the directors had breached this duty, and that the injury was primarily to the individual shareholders because the directors' actions "affect[ed] a [minority] shareholder's rights in a manner distinct from the effect upon other shareholders." Id., ¶ 16 (citations omitted).
¶ 21 Another example of a claim properly brought as a direct claim by a shareholder is a claim for breach of fiduciary duty based on allegations that the corporation's assets were used to fund a "due diligence" investigation of another company that the corporation's board decided not to purchase, but which was then acquired by the majority shareholder. Notz, 316 Wis.2d 640, ¶ 27, 764 N.W.2d 904. The Notz court treated this expenditure from corporate assets as a "constructive dividend" that the majority shareholder received "at the expense of the minority shareholders." Id., ¶ 4. The Notz court concluded that, as in Jorgensen II, in this situation the minority shareholders' rights were affected in a manner "distinct from the effect upon other shareholders," and the injury to the plaintiff minority shareholder was therefore an injury primarily to him as an individual. Id., ¶¶ 26, 28 (citing Jorgensen II).
¶ 22 Each party argues that the above case law supports the respective positions of each on the nature of the Ewers' claim. The Ewers rely on Jorgensen II and argue that, like the distributions withheld from the minority shareholders there, the Association's construction of the disputed provision affects each consolidated site owner "in a manner distinct from the effect upon other [members]," that is, in a manner distinct from the effect upon the nonconsolidated site owners. See Jorgensen II, 246 Wis.2d 614, ¶ 16, 630 N.W.2d 230. According to the Ewers, the Association suffers no injury from the provision's current construction and would suffer no injury if the disputed provision were construed
¶ 23 The Association responds that the Ewers are not analogous to the minority shareholders in Jorgensen II because the Ewers, like all members of the Association, are subject to the bylaws, and the Association does not apply a different construction of the disputed provision to the Ewers than it does to other members. The Association points out that a nonconsolidated site owner may in the future decide to become a consolidated site owner and then that owner, too, will be subject to a one and one-quarter annual assessment, just as the Ewers are. Fundamentally, the Association's position is that every member has an interest in the proper construction of the bylaws and is injured if the bylaws are incorrectly construed, and therefore only the Association has a right to bring an action for the proper construction of a bylaw.
¶ 24 The Association appears to read Jorgensen II to require that every claim that is individual to a shareholder must be based on treatment of that shareholder that is different from treatment of other shareholders, or, at least, from other shareholders that are similarly situated. We disagree with this reading. In Jorgensen II we analyzed a claim by minority shareholders for a breach of fiduciary duty to them individually. Because the claim was for a breach of the directors' duty to treat them fairly as shareholders, the injury to each of them as a result of the breach is aptly described as "affect[ing] a shareholder's rights in a manner distinct from the effect upon other shareholders." Id., ¶ 16 (citations omitted). The same is true for the injury to the minority shareholder in Notz, who alleged a breach of fiduciary duty claim based on an expenditure by the majority shareholder that benefited the majority shareholder at the expense of the minority shareholders. See Notz, 316 Wis.2d 640, ¶¶ 24-27, 764 N.W.2d 904.
¶ 25 However, claims other than one for breach of a fiduciary duty may require a different analysis to determine whether the direct injury is to the shareholder or member as an individual or, instead, is to the corporation. This is the fundamental inquiry. See Krier, 317 Wis.2d 288, ¶ 31 n. 13, 766 N.W.2d 517.
¶ 26 It is not disputed by the parties that the duty of members to pay assessments and the authority of the Association to collect assessments are contained in the covenants, which are incorporated into the Association's bylaws.
According to another provision of the bylaws, failure to pay assessments when due results in a residential parcel owner losing the right, at least for a time, to attend Association meetings and to vote on any matter submitted to the membership.
¶ 27 The bylaws of a non-stock corporation are "the code of rules, other than the articles of incorporation, adopted under this chapter for the regulation or management of the affairs of a corporation...." WIS. STAT. § 181.0103(3). Bylaws of a corporation constitute a contract between the members and the corporation. O'Leary v. Board of Dir., 89 Wis.2d 156, 169, 278 N.W.2d 217 (Ct.App.1979) (stating, in a case involving a non-stock corporation, "the bylaws and articles of incorporation of a corporation form a binding contract between the members and the corporation") (citing Attoe v. Madison Prof. Policemen's Ass'n, 79 Wis.2d 199, 255 N.W.2d 489 (1977)).
¶ 28 Thus, the Ewers have a contractual obligation to pay the assessment authorized by the bylaws for a consolidated site owner and a corresponding right, also contractual, not to pay assessments greater than those authorized by the bylaws. The obligation to pay the assessment authorized by the bylaws and the right to pay no more than that is individual to each parcel owner, including the Ewers, because the assessment is imposed on each parcel owner as an individual. The adverse consequence of not paying the charged assessment
¶ 29 Because the Ewers each have a right as an individual to pay no more in assessments than the bylaws authorize, they each suffer a direct injury as an individual if they pay more than the bylaws authorize.
¶ 30 We do not agree with the Association's logic that the Ewers do not have individual rights or suffer individual injuries because every member could choose to be a consolidated site owner and thus would be subject to the higher assessment. Instead, we conclude that any time a nonconsolidated site owner becomes a consolidated site owner, that site owner suffers an individual injury if he or she pays more in assessments than the bylaws authorize. The fact that site owners can switch from a status in which they do not suffer injury into a status in which they do suffer injury does not logically transform the injury into one that is not individual to each who suffers it.
¶ 31 Similarly, we do not agree with the Association's argument that every member has an interest in the correct interpretation of the bylaws, and, therefore, the injury from any incorrect interpretation is an injury primarily to the Association. This argument fails to analyze the particular provision that forms the basis for the Ewers' claim and fails to explain why the Association, rather than the Ewers, suffers any injury if the Ewers pay more in assessments than the bylaws authorize the Association to collect.
¶ 32 The Association cites Crittenton v. Southland Owners Ass'n, 312 Ga.App. 521, 718 S.E.2d 839 (2011), as persuasive authority in support of this argument, but we do not find that court's reasoning persuasive.
¶ 33 In Crittenton, five members of an association filed an action on their own behalf seeking a declaratory judgment on whether the association and several members of its board of directors had employed the proper election and voting procedures under the association's bylaws. Id. at 840. The Georgia Court of Appeals concluded that this was a derivative claim because there were not "special injuries ... distinct from any injury to [the association] as a corporation." Id. at 843. The court stated that this claim "is essentially a claim that defendants breached their fiduciary duties owed to [the association] and all of its members" and that "election procedures properly conducted in accordance with the bylaws benefit all members; just as election irregularities harm all members of a corporation." Id.
¶ 35 However, the more fundamental problem is with Crittenton's unexplained assertion that, simply because every member of the association is harmed by an improper construction of the voting and election bylaw provisions at issue, the claim for a declaratory judgment on the proper construction belongs to the association, not to any individual member. The Crittenton court does not examine the bylaw provisions at issue to determine whether they give individual members any rights and, if they do, whether those individual rights have been injured by the actions complained of. The Crittenton court appears to assume that an injury to every member of the association equals an injury to the association itself; but the court does not explain this assumption and its validity is not at all obvious.
¶ 36 Contrary to Crittenton, cases from several other jurisdictions have concluded that the right to vote given to shareholders or members in bylaws is an individual right that may be vindicated by bringing a direct claim on their own behalf. See Baldwin Cnty. Elec. Membership Corp. v. Catrett, 942 So.2d 337, 346 (Ala.2006), and cases cited therein. Baldwin, in particular, employs an analysis that we find more persuasive than that in Crittenton.
¶ 37 The court in Baldwin held that a claim that the board of trustees failed to follow the procedures set out in the bylaws for the election of trustees was properly brought as a direct claim "because [the plaintiffs] are enforcing an individual right — the right to vote — rather than a right of the corporation." Id. (citations omitted). After describing the specific bylaw provisions at issue, id. at 340-41, the court's analysis began with the proposition that under Alabama law the bylaws and certain other writings of a voluntary association constitute a contract between the association's members. Id. at 345 (citation omitted). The court reasoned that, because every member was granted the right to vote in the bylaws, as well as by statute, "each member of the Cooperative had a contractual right to vote. If the plaintiffs' voting rights have been violated, the plaintiffs — not the corporation — have suffered a harm." Id. at 345-46. Therefore, the Baldwin court decided, the plaintiffs were enforcing an individual right, not the right of the corporation. Id. at 346.
¶ 38 Although Baldwin does not address a bylaw provision on member assessments, we conclude its analysis is sound, is consistent with Wisconsin law, and supports the conclusion we have reached here.
¶ 39 The Association may be making an additional argument in support of its assertion that the Ewers' claim belongs to the Association. The Association may be arguing that, even if the Ewers suffer a direct injury to their individual rights if they are required to pay a higher assessment than the bylaws authorize, they must still bring the claim for a declaratory judgment construing the disputed provision as a derivative claim because the Association has an interest in the correct construction of the provision. Although we are uncertain if this is the Association's position, we address it to make sure we have considered all the Association's arguments.
¶ 40 The declaratory judgment statute, WIS. STAT. § 806.04(2), provides in part:
We recognize this statutory language refers to "interest;" it does not refer to "injury," as does the derivative action case law we have discussed. However, on this appeal we need not resolve whether there is a difference in meaning and, if so, what it is.
¶ 41 However, the fact that the Association could also bring a claim for a declaratory judgment does not mean that the Ewers do not have an individual right to bring the claim based on the individual, direct injury to each. The Association's interest, as the Association has described it, is in a correct construction of the bylaw provisions it has a duty to enforce. The Ewers' injury is distinct from this interest of the Association. Neither the derivative action statute in WIS. STAT. ch. 181 nor the derivative action case law decided under WIS. STAT. § 180.0740(2) support preventing the Ewers from bringing an individual action in these circumstances.
¶ 42 Generally, the purpose of a derivative action statute is "to prevent injustice against the corporation by allowing shareholders to enforce corporate interests when the directors refuse to take corrective action." 13 WILLIAM MEADE FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 5949 (2004). This purpose is evident in the text of WIS. STAT. § 181.0742. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 49, 271 Wis.2d 633, 681 N.W.2d 110 (when we construe a statute, the purpose of the statute as revealed in the text is part of determining the plain meaning of the statute). The derivative action statute requires that, before bringing a derivative action, the member must make a demand upon the corporation that it take "suitable action," and ninety days from the demand must pass, unless before then the corporation notifies the member it has rejected the demand.
¶ 43 Finally, we note that the Association refers to the business judgment rule in support of its argument that the Ewers' claim is derivative. We are uncertain precisely on what grounds the Association views this rule to be relevant to the issue whether the Ewers' claim is derivative or direct. We clarify here that the business judgment rule is not relevant to deciding whether the Ewers' claim is derivative or direct.
¶ 44 The business judgment rule is "a judicially created doctrine that limits judicial review of corporate decision-making when corporate directors make business decisions on an informed basis, in good faith and in the honest belief that the action taken is in the best interests of the company." Einhorn v. Culea, 2000 WI 65, ¶ 19, 235 Wis.2d 646, 612 N.W.2d 78. The rule "contributes to judicial economy by limiting court involvement in business decisions where courts have no expertise...." Reget v. Paige, 2001 WI App 73, ¶ 17, 242 Wis.2d 278, 626 N.W.2d 302 (citation omitted). The Association cites no authority for the proposition, and we are aware of none, that the business judgment rule is part of the analysis for determining whether a claim is derivative or direct.
¶ 45 It may be that, in referring to the business judgment rule, the Association is in essence addressing the merits of the Ewers' claim, and advancing a construction of the disputed provision under which the Association has discretion to assess consolidated site owners either one assessment or a one and one-quarter assessment. It may be that, if a court determines this is the correct construction, the business judgment rule would be relevant in addressing a challenge to the Association's exercise of its discretion. However, the issue of the proper construction of the disputed provision is not before us. Moreover, the business judgment rule is not relevant to the proper construction of the bylaws, which are generally construed according to the principles of contract construction. See Driver v. Driver, 119 Wis.2d 65, 71, 349 N.W.2d 97 (Ct.App. 1984) ("[T]he principles which govern the construction of contracts also govern the construction and interpretation of corporate bylaws ...." (alterations in original) (quotation omitted)).
¶ 46 In summary, we conclude that the Ewers' claim is an individual claim because it is based on a direct injury to a right that is individual to each of them. The Association asserts no injury to it other than that arising from its interest in a correct construction of the bylaws that govern it. This asserted interest does not negate the Ewers' right to bring this claim as a direct action, on their own behalf.
¶ 47 The sole ground on which the circuit court denied the Ewers' motion to certify a plaintiff class of consolidated site owners was the court's conclusion that the Ewers must bring their claim as a derivative claim. A circuit court's decision to grant or deny a motion for class certification is committed to the circuit court's discretion. Hermanson v. Wal-Mart Stores, Inc., 2006 WI App 36, ¶ 3, 290 Wis.2d 225, 711 N.W.2d 694 (citation omitted). We affirm discretionary decisions if the circuit court applied the correct law to the facts of record and reached a reasonable decision. Id. Because we have concluded the circuit court erred in concluding that the Ewers must bring this claim as a derivative claim, the court applied incorrect law in denying the class certification motion. Accordingly, we reverse the court's denial of this motion and remand
¶ 48 In addition to dismissing the amended complaint because the claim was not filed as a derivative claim, the circuit court concluded that "the complaint must fail" because it does not join all the persons who have an interest, as required by WIS. STAT. § 806.04(11).
¶ 49 The Ewers contend that the court erred in deciding that all 1602 members of the Association need to be joined, but they do not argue that the nonconsolidated site owners are not persons "who have or claim any interest which would be affected by the declaration...." WIS. STAT. § 806.04(11). According to the Ewers, it is unreasonable to read § 806.04(11) to require joinder of all 1602 members because that would make a declaratory judgment resolving the construction of the disputed provision a practical impossibility. The Association responds that all 1602 members must be joined.
¶ 50 To the extent the circuit court meant that all 1602 members must be individually joined, such a ruling is not consistent with Lozoff v. Kaisershot, 11 Wis.2d 485, 105 N.W.2d 783 (1960), a case the Association cites for another proposition. In Lozoff a homeowner sought a declaration construing the deed restrictions in a subdivision, suing the subdivision homeowners' association, an officer, and twenty-three members. Id. at 486-87, 105 N.W.2d 783. Some defendants argued that all members of the Association needed to be made parties under the declaratory judgments statute, WIS. STAT. § 806.04(11).
¶ 51 Lozoff thus provides an option evidently not considered by the court — that only a few of the nonconsolidated site owners need be joined if they are suitable representatives of the class of nonconsolidated site owners.
¶ 52 It is true that the Ewers' amended complaint did not name as defendants any of the nonconsolidated site owners who represented the class of nonconsolidated site owners. However, because the circuit court may permit an amendment to the complaint, the failure to join a necessary party does not require dismissal of the complaint. Under WIS. STAT. § 802.09(1), after six months from the filing of the summons and complaint, a party may amend the pleading with leave of the court and "leave shall be freely given at any stage of the action when justice so requires." See Habermehl Elec., Inc., v. DOT, 2003 WI App 39, ¶ 12, 260 Wis.2d 466, 659 N.W.2d 463 (it is within the circuit court's discretion to allow an amendment to the complaint to add a party after six months from the filing of the action); see also Annoye v. Sister Bay Resort Condo. Ass'n, Inc., 2002 WI App 218, ¶¶ 2, 14, 256 Wis.2d 1040, 652 N.W.2d 653 (after concluding the unit owners were interested parties under WIS. STAT. § 806.04(11), we reversed dismissal of the action and remanded with directions to allow an amendment to the complaint to add them as parties).
¶ 53 We do not direct the circuit court here to allow the amendment, as we did in Annoye, nor do we attempt to define here precisely what type of representative joinder of the nonconsolidated site owners is adequate under Lozoff, other pertinent case law, and WIS. STAT. § 806.04(11). Instead, the circuit court on remand will have the opportunity to more fully consider these matters and exercise its discretion accordingly.
¶ 54 We reverse the circuit court's order dismissing this action and remand to the circuit court for further proceedings on the Ewers' direct claim. We also reverse the court's ruling denying the Ewers' motion for plaintiff class certification and remand for the court to consider the motion on the merits. Finally, we reverse the court's ruling on joinder insofar as the court ruled that dismissal was required because the Ewers had not joined all nonconsolidated site owners individually, and we remand for further consideration of this issue consistent with this opinion.
Order reversed and cause remanded with directions.
After reviewing the amended complaint, the Association's answer, the materials submitted by the Association with its motion, and the facts that the Association has admitted, explicitly or implicitly, for purposes of its motion, we are satisfied that, for purposes of this appeal, there is no dispute over the facts we have related in paragraphs 6 and 7 of the background section.
Krier v. Vilione, 2009 WI 45, ¶ 31 n. 13, 317 Wis.2d 288, 766 N.W.2d 517 (brackets in original) (citation omitted). The Association argues that the Ewers' claim fits into none of these categories. Our analysis of the bylaws as a contract in the paragraphs that follow may cast doubt on the Association's assertion that the Ewers' claim does not fit within the first category: "[an] action based on a contract to which the shareholder is a party." However, even if the Association is correct that the Ewers' claim does not fit into any of these three categories, these categories are not exhaustive: they are, explicitly, "example[s]." Thus, the Association's argument that the Ewers' claim does not fit into these categories, like its argument that the facts here are distinguishable from those in Jorgensen II, does not obviate the need to examine the Ewers' particular claim.