to the plaintiff stockholder so as to be aligned as a defendant is “a practical, not a mechanical determination, and is resolved by the pleadings and the nature of the dispute.” Smith, 354 U.S. at 97, 77 S.Ct. 1112. Indeed, “[t]he [complaint] and answer normally determine whether the management is antagonistic to the stockholder.” Smith, 354 U.S. at 96, 77 S.Ct. 1112. In this regard, the Supreme Court has recognized that antagonism is present “whenever the management is aligned against the stockholder and defends a course of conduct which [the shareholder] attacks.” Smith, 354 U.S. at 95, 77 S.Ct. 1112. This would be the case, for example, when the plaintiff stockholder complains that the management of a corporation has committed a breach of fiduciary duty or fraud. See id. (<HOLDING>) (citations omitted). This is precisely the
recognizing that actions for a breach of trust lie in equity recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract holding that a third party who receives trust property on inquiry notice that a trustee has misappropriated trust funds is also liable for breach of trust holding that failure to pay sales taxes is a breach of trust recognizing that when antagonism is present the charge normally is cast in terms of fraud breach of trust or illegality